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Amended Agenda Item 4G- MOU Dutton Island Preserve AMENDED AGENDA ITEM 4G OCTOBER 24,2016 CITY OF ATLANTIC BEACH CITY COMMISSION MEETING STAFF REPORT AGENDA ITEM: Memorandum of Understanding Between the City of Jacksonville and the City of Atlantic Beach for Joint Operation of Dutton Island Preserve SUBMITTED BY: Donald D. Jacobovi , I. Public Works Director DATE: September 26, 2016 BACKGROUND: The City of Jacksonville and the City of Atlantic Beach separately own real property collectively comprising the Dutton Island Preserve, and wish to execute a Memorandum of Understanding to establish respective duties, responsibilities and obligations pertaining to building, maintaining facilities and amenities, and to establish wetland creation areas on the City of Jacksonville's property, as described in the attached Memorandum of Understanding for Joint Operation of Dutton Island Preserve. BUDGET: N/A RECOMMENDATION: Approve the Memorandum of Understanding Between the City of Jacksonville and the City of Atlantic Beach for the Joint Operation of Dutton Island Preserve and authorize Mayor to sign the Agreement. ATTACHMENTS: Memorandum of Understanding. • REVIEWED BY CITY MANAGER: `-///. �ac.• 7G�,r MEMORANDUM OF UNDERSTANDING BETWEEN CITY OF JACKSONVILLE AND CITY OF ATLANTIC BEACH FOR JOINT OPERATION OF DUTTON ISLAND PRESERVE THIS MEMORANDUM OF UNDERSTANDING ("MOU") , by and between the CITY OF JACKSONVILLE, a municipal corporation and political subdivision of the State of Florida with its principal office at 117 West Duval Street, Jacksonville, Florida 32202 (hereinafter "COJ") , and CITY OF ATLANTIC BEACH, a municipal corporation and political subdivision of the State of Florida with its principal office at 800 Seminole Road, Atlantic Beach , Florida 32233 (hereinafter "COAB"), is entered into effective the day of , 2016 (the "Effective Date") , for joint operation of the Dutton Island Preserve and Expansion Property (the "Project") . WITNESSETH: WHEREAS, COAB owns certain real property at 1600 Dutton Island Road West, Atlantic Beach, FL 32233 , consisting of 31 acres, more or less, commonly referred to as Dutton Island Preserve; and as more particularly delineated and described in Exhibit A, attached hereto and incorporated herein by this reference (the "COAB Property"); and WHEREAS , COJ owns certain real property at 793 Dutton Island Road West, Jacksonville, Florida 32233 , consisting of 276 acres, more or less, commonly known as the Dutton Island Expansion Property, which includes much of the adjacent tidal marsh and the north end of Dutton Island Preserve as more particularly delineated and described in Exhibit B. attached hereto and incorporated herein by this reference (the "COJ Property") ; and WHEREAS , COAB has been allowed to build and maintain facilities and amenities on the COJ Property without an officially recorded agreement between COJ and COAB being in place; and WHEREAS , COAB wishes to build and maintain additional facilities and amenities and establish wetland creation areas on the COJ Property; and WHEREAS , COAB provides maintenance assistance on COJ Property; and WHEREAS, COJ and COAB believe that the Project will prove beneficial to the health, welfare, and enjoyment of citizens of, and visitors to COJ and COAB ; and WHEREAS, it is in the mutual interests of COJ and COAB to work together on the Project for the benefit and enjoyment of members of the general public, without discrimination as to age, religion, disability, marital status, national or ethnic origin, gender, creed, color, or race; and WHEREAS , COJ and COAB wish to enter into this MOU in order to provide for the Project and to establish their respective duties, responsibilities, and obligations with respect to the Project and the COJ Property; i IOW, THEREFORE, for and in consideration of good and valuable consideration , including, but not limited to, the covenants, conditions, and terms hereof, the sufficiency and receipt of said good and valuable consideration being herewith acknowledged by the respective parties, COJ and COAB stipulate and agree as follows : 1 . Recitals. The recitals set forth herein are accurate, correct, true , and incorporated herein by this reference. 2. Definitions. As used in this MOU, the words defined immediately below shall have the meaning stated next to same. Words imparting the singular number include the plural number and vice versa, and the male gender shall include the female gender and vice versa unless the context clearly requires otherwise . (a) "Governmental Requirement" means any permit, law, statute, code, rule, regulation, ordinance, order, judgment, decree, writ, injunction , franchise, condition , certificate, license, authorization , or other direction or requirement of any governmental and/or regulatory national, state, or local entity with jurisdiction over COJ, COAB , and/or the COJ Property. Governmental Requirements shall include all applicable, relevant, or appropriate Florida statutes and Jacksonville ordinances , including without limitation any regulation found in the Florida Administrative Code and regulations or rules now existing or in the future enacted, promulgated , adopted, entered, or issued, both within and outside the present contemplation of the respective parties to this transaction . (b) "Hazardous Materials" means any flammable explosives, radioactive materials, hazardous materials , hazardous wastes, asbestos , radon, petroleum products, hazardous or toxic substances, or related materials, including without limitation those defined in : (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S .C. § 9601 et seq.) ; (ii) the Hazardous Materials Transportation Act, as amended (42 U.S .C. § 1808 et seq.); (iii) the Resource Conservation and Recovery Act of 1976, as amended (42 U.S .C. § 6901 et seq.); (iv) regulations adopted and publications promulgated pursuant to the foregoing; (v) any other Governmental Requirement; and (vi) any other material the use, release, disposal , or presence of which may result in liability under any Governmental Requirement or common law action. (e) "MOU" means collectively this MOU and any and all exhibits hereto, including any amendments or addenda which may supplement, modify, or amend same . (f} "Section" means the numerical sections of this MOU and the respective subsections thereof. Each respective section begins with a numerical number and a capitalized 2 heading of the Section which is underlined to indicate the subject matter thereof, 3 . The Project. (a) COJ shall permit COAB to construct and/or install additional facilities and amenities on the COJ Property provided that COAB obtains written approval of any facility or amenity from COJ prior to construction thereof. No other use of the COJ Property is permitted without the prior written consent of COJ, which consent may be withheld in the absolute discretion of COJ. (b) During the construction or installation of any facility or amenity, and with the prior permission of COJ, COAB may restrict access of the general public to the area of the COJ Property in which the facility or amenity is being constructed or installed. (c) Al ! COAB projects on the COJ Property will be subject to inspection by COJ through the Department of Public Works and the Department of Parks, Recreation and Community Services at all reasonable times, and no work will be considered complete until accepted as complete in writing by COJ. (d) COAB shall be responsible for the costs of the maintenance and upkeep of all facilities it has built or builds on the COJ Property. (e) COAB shall be responsible for the success of the wetland creation areas created by COAB on the COJ Property. (f) All additions, alterations , changes, and/or improvements to the COI Property made by COAB in carrying out the Project shall , upon completion thereof, become the property of COJ . (g) COAB will continue to provide maintenance assistance on COJ Property to include daily opening/closing of entrance gate, trash removal, checking on condition of facilities and trails and reporting signs of vandalism and damages to park facilities and resources to the COJ. 4. Indemnification, (a) COAB shall hold harmless, indemnify, and defend COJ, including without limitation its officers , directors, members, representatives, affiliates, agents, employees, successors, and assigns, against any and all claims, suits, demands, judgments, losses, costs, fines , penalties, damages, liabilities, and expenses (including all costs for investigation and defense thereof, including but not limited to court costs, reasonable expert witness fees, and attorney' s fees) which may be incurred by, charged to, or recovered from and against any of the following arising directly or indirectly out of any of COAB ' s operations , work, or services performed in connection with this MOU, including but not limited to; (1) any and all claims for damages as a result of the injury to or death of any person or persons, or damage to or destruction of any property which arises as a result of any negligent act or omission on the part of COAB, its agents, affiliates, or assigns, regardless of where the damage, injury, or death occurred, or arising out of the failure of COAB to keep, observe, or perform any of its obligations under this MOU or in any other document or instrument delivered by COAB pursuant to this MOU; 3 (ii) any and all claims , suits, demands, judgments , losses, costs, fines, penalties , damages, liabilities, and expenses (including all costs of cleanup, containment, or other remediation , and all costs for investigation and defense thereof, including but not limited to court costs, reasonable expert witness fees , and attorney' s fees) arising from or in connection with: actions or activities of COAB , including but not limited to its agents , affiliates , or assigns ("Parties") that result in a violation of any environmental law, ordinance, rule, or regulation or that leads to an environmental claim or citation or to damages due to COAB ' s or other Parties ' activities ; any environmental, health , and safety liabilities arising out of or relating to the operation or other activities performed in connection with this MOU by COAB or any Party at any time on or prior to the Effective Date; or any bodily injury (including illness, disability, and death, regardless of when any such bodily injury occurred, was incurred, or manifested itself) , personal injury, property damage (including trespass , nuisance, wrongful eviction , and deprivation of the use of real property), or other damage of or to any person in any way arising from or allegedly arising from any hazardous activity conducted by COAB or any Party. Any remedial action and any proceeding relating to an environmental claim shall be the responsibility of COAB ; (iii) any and all claims, suits, demands, judgments, losses, costs, fines , penalties, damages, liabilities, and expenses (including all costs for investigation and defense thereof, including but not limited to court costs, reasonable expert witness fees, and attorney' s fees) arising from or based upon the violation of any federal, state, or municipal laws , statutes, resolutions, or regulations by COAB or those under its control ; (iv) any and all claims, suits, demands, judgments, losses, costs , fines, penalties , damages, liabilities, and expenses (including all costs for investigation and defense thereof, including but not limited to court costs, reasonable expert witness fees, and attorney' s fees) which may be incurred by, charged to, or recovered from any of the foregoing, arising directly or indirectly out of: any breach of any representation or warranty made by COAB in connection with this MOU or in any certificate, document, writing, or other instrument delivered by COAB pursuant to this MOU ; or, any breach of any covenant or obligation of COAB set forth in this MOU or any other certificate, document, writing, or other instrument delivered by COAB pursuant to this MOU; (b) The indemnifications contained in Subsection 4(a) , above, are separate and apart from , and are in no way limited by, any insurance provided pursuant to this MOU or otherwise. This Section 4 relating to indemnification shall survive the term of this MOU and any holdover and/or extension thereto, whether such term expires naturally by the passage of time or is terminated earlier pursuant to the provisions of this MOU. (c) The indemnifications given by COAB are subject to the provisions and limitations of Section 768.28 , Florida Statutes, and shall not be construed as , and are not, a further waiver of COAB ' s sovereign immunity beyond the limited legislative waiver thereof in Section 768 . 28, Florida Statutes. . 5. Title to Property. Title to the COJ Property shall remain vested with COJ, subject to the covenants, conditions , and terms of this MOU, and COAB shall have no interest in the title to the COJ Property. Any improvements made to the COJ Property shall be vested with COJ , which shall have the title thereto, subject to the covenants, conditions, and terms of this MOU. COJ shall always 4 remain vested with title to the COJ Property and in control thereof to ensure that neither COAB nor any other entity shall have the authority or right to violate Governmental Requirements affecting the COJ Property and the utilization thereof. 6 . Hazardous Materials. (a) COAB shall not knowingly use, handle, store, or permit the use, handling, or storage of Hazardous Materials on or in the COJ Property. COAB shall not dispose of or permit or allow the disposal, leakage, spillage, or discharge on the COJ Property of any Hamrdous Material . If any Hazardous Material should be used, handled, or stored (except in accordance with this section) or if any Hazardous Material is disposed of or permitted to leak, spill , or discharge on the COJ Property by accident or otherwise, COAB shall provide immediate written notice thereof to COJ and shall immediately commence and diligently pursue the removal of any such Hazardous Material . COAB shall remediate, clean, and restore the Hazardous Material area in accordance with all applicable Governmental Requirements and pay all fines, fees , assessments, and penalties arising therefrom. COAB shall furnish COJ periodically at COD' s request certification that COAB is in compliance with the provisions of this section . (b) COAB shall provide written notice to COJ within three (3) days of: (i) any change in COAB ' s utilization and operation of the COJ Property involving the use, handling, or storage of Hazardous Materials; (ii) receipt of any warning, notice, notice of violation , lawsuit, or the like from any governmental agency or regulatory authority relating to environmental compliance; (iii) receipt of any complaint, claim, or lawsuit filed by any third party relating to environmental compliance ; or (iv) release, spillage, leakage, or disposal of any Hazardous Material on the COJ Property. (c) If COAB shall fail to comply with any of the provisions of this section, COJ shall have the right , but shall not be obligated, to enter onto the COJ Property and take such steps and incur such expenses as COJ shall deem necessary to correct COAB ' s default, including, without limiting the generality of the foregoing, the making of all replacements or repairs for which COAB is responsible, and COAB shall reimburse COJ on demand for any expense incurred by COJ as a result thereof. (d) "Hazardous Materials" shall have the meaning set forth in Section 2(b) above. 7 . Default. (a) Each of the following events shall be a default hereunder by COJ or COAB , as the case may be, and shall constitute a breach of this MOU: (i) if a party shall fail to perform any of the covenants, conditions, and terms of this MOU on such party's part to be performed and such non-performance shall continue for a period of thirty (30) days after written notice thereof from the other party; 5 (ii) if a party shall fail to act in good faith to commence and undertake performance within such thirty (30) day period to cure a non-performance which cannot be cured within the initial thirty (30) day period and such party shall designate in writing the reasonable time period to cure such non-performance and its intent to do so ; or (iii) a party, having commenced to undertake such performance within the initial thirty (30) day period, shall fail to diligently proceed therewith to completion within the designated reasonable time period to cure such non-performance. (b) If an event of default shall occur and be continuing for thirty (30) days, then the non-defaulting party shall have the right to terminate and cancel this MOU by giving to the defaulting party not less than thirty (30) days' written notice of such termination and cancellation, and upon the expiration of the time fixed in such notice, this MOU shall terminate and the parties shall be released from all obligations under this MOU which do not specifically survive its termination. The foregoing remedy shall not be the exclusive remedy for either party to this MOU . 8. Licenses and Permits. COAB will be responsible for obtaining, in the name of COJ, COAB , or otherwise, all licenses, permits , inspections, and other approvals necessary for operation of the Project . COJ shall cooperate with COAB in obtaining all such licenses , permits, inspections, and other approvals, including but not limited to supplying information and executing applications, forms , or other documents necessary for same. 9. Force Majeure. If COJ or COAB shall be delayed in, hindered in , or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials , failure of power, restrictive governmental laws , regulations , or actions , war, riots, insurrection, the act, failure to act, or default of the other party, or other reason beyond such party's reasonable control (excluding the unavailability of funds or financing) , then the performance of such act shall be excused for the period of the delay and the period for the performance of any such act as required herein shall be extended for a period equivalent to the period of such delay. 10. Miscellaneous : (a) Notices . Any and all notices which are permitted or required in this MOU shall be in writing and shall be duly delivered and given when personally served or mailed to the person at the address designated below . If notice is mailed , the same shall be mailed, postage prepaid, in the United States mail by certified or registered mail - return receipt requested. Notice shall be deemed given on the date of personal delivery or mailing and receipt shall be deemed to have occurred on the date of receipt. In the case of receipt of certified or registered mail , the date of receipt shall be evidenced by return receipt documentation . Failure to accept certified or registered mail shall be deemed a receipt thereof within ten ( 10) days after the first notice of delivery of the certified or registered mail. Any entity may change its address as designated herein by giving notice thereof as provided herein. If to COJ: Office of the Director Department of Parks, Recreation and Community Services 214 North Hogan Street, Fourth Floor Jacksonville, Florida 32202 6 If to COAB : _Director of Public Works _ 1200 Sandpiper Lane _Atlantic Beach, FL 32233 or such other address either party from time to time may specify in writing to the other. (b) Legal Representation. Each respective party to this MOU has been represented by counsel or has knowingly and willfully refused representation by counsel in the negotiation of this MOU; accordingly, no provision of this MOU shall be construed against a respective party due to the fact that it or its counsel drafted , dictated, or modified this MOU or any covenant, condition, or term hereof. (c) Further Instruments. Each respective party hereto shall from time to time execute and deliver such further instruments as any other party or parties or its counsel may reasonably request to effectuate the intent of this MOU. (d) Severability of Invalid Provision. If any one or more of the agreements , provisions , covenants, conditions, and terms of the MOU shall be contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such agreements, provisions, covenants, conditions, or terms shall be null and void with no further force or effect and shall be deemed separable from the remaining agreements, provisions, covenants, conditions , and terms of the MOU and shall in no way affect the validity of any of the other provisions hereof. (e) No Personal Liability. No representation, statement, covenant, warranty, stipulation, obligation, or agreement contained herein shall be deemed to be a representation, statement, covenant, warranty, stipulation, obligation, or agreement of any member, officer, employee, or agent of COJ or COAB in his or her individual capacity, and none of the foregoing persons shall be liable personally or be subject to any personal liability or accountability by reason of the execution or delivery hereof. (f) Third Party Beneficiaries. Nothing herein express or implied is intended or shall be construed to confer upon any entity other than COJ and COAB any right, remedy, or claim, equitable or legal, under and by reason of this MOU or any provision hereof, all provisions, conditions, and terms hereof being intended to be and being for the exclusive and sole benefit of COJ and COAB . (g) Survival of Representations and Warranties, The respective indemnifications, representations, and warranties of the respective parties to this MOU shall survive the expiration or termination of the MOU and remain in effect. (h) Governing Law. This MOU shall be governed by and construed in accordance with the laws of the State of Florida and the ordinances of the City of Jacksonville. Wherever possible, each provision, condition , and term of this MOU shall be interpreted in such manner as to be effective and valid under applicable law; but, if any provision, condition, or term of this MOU, or any documentation executed and delivered hereto, shall be prohibited by or invalid under such applicable law, then such provision , condition, or term shall be ineffective to the extent of such 7 1 prohibition or invalidity without invalidating the remainder of such provision , condition , or term or the remaining provisions , conditions, and terms of this MOU or any documentation executed and delivered pursuant hereto . ( i ) Section Headings . The section headings inserted in this MOU are for convenience only and are not intended to and shall not be construed to Iimit, enlarge, or affect the scope or intent of this MOU or the meaning of any provision , condition, or term hereof. (j) Counterparts. This MOU may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. (k) Entire Agreement. This MOU contains the entire agreement between the respective parties hereto and supersedes any and all prior agreements and understandings between the respective parties hereto relating to the subject matter hereof. No statement or representation of the respective parties hereto, their agents , or their employees made outside of this MOU and not contained herein shall form any part hereof or bind any respective party hereto. This MOU shall not be supplemented, amended, or modified except by written instrument signed by the respective parties hereto. (I) Attorney' s Fees and Costs. In any litigation arising out of or pertaining to this MOU, the prevailing party shall be entitled to an award of its attorney' s fees and costs, whether incurred before , during, or after trial , or upon any appellate level . (m) Time. Time is of the essence of this MOU. When any time period specified herein falls upon a Saturday, Sunday or legal holiday, the time period shall be extended to 5 :00 p.m. on the next ensuing business day. (n) Waiver of Defaults. The waiver by either party of any breach of this MOU by the other party shall not be construed as a waiver of any subsequent breach of any duty or covenant imposed by this MOU . 8 TN WITNESS WHEREOF, the respective parties hereto have executed this MOU for the purposes expressed herein effective the day and year first above written . ATTEST: CITY OF JACKSONVILLE By: James R. McCain , Jr. Lenny Curry, Mayor Corporation Secretary ATTEST: CITY OF ATLANTIC BEACH By: Print Name: Print Name: Mitchell E. Reeves Title: _Mayor Print Name : Form Approved : By: Assistant General Counsel G:Gov't OpcmtionsU MCainU'REC1 MOU1COAB .DuttonislandExpansion. 112515.doe 9 • EXHIBIT A Legal Description of Dutton Island Preserve 10 Book 10824 Page 2114 • �6C� QQ3 ' PREPARED BY & RETURN TO : �pC�� i�QQ�3462565 ALAN C . JENSEN, ESQUIRE 1 vst P . O . Box 50957 Pa es: 2114 — 2137 Jacksonville Beach , FL 32240- 0457 Fred a 12/20/2002 OSIOE:03 OH MN FILER GC4RJ� COUNTY COURT MOM I 12.90 DEED MC SFtW $ 0.70 rnRRFrtn pi PERSONAL REPRESENTATIVE ' S nErn THIS DEED of conveyance is made this S M day of ri tai 2002 , by Ceylon Rentz , Personal Representative of the Estate of Walter E . Dutton, deceased, whose address is 9471 Baymeadows Road, Suite 203 , Jacksonville , Florida 32256 , hereinafter called the Grantor, to City of Atlantic Beach , Florida municipal corporation, FEIN 59- 6000267 and tax exempt #26- 02- 107391 -54C ( exp . 6 / 10 / 02 ) , and to the City of Jacksonville , a Florida municipal corporation , FEIN 59- 6000344 and tax exempt # 26- 08 - 107377-54C ( exp . 6 / 10/ 02 ) , whose mailing address is : 117 West Duval Street , Jacksonville , Florida 32202 , hereinafter called the Grantees . WITNESSETN : REAS , Walter E . Dutton is now deceased and the Estate of said decedent is being administered in the Circuit Court of Duval County, Florida , Probate No . 96- 01271 -CP ; and WHEREAS , the Grantor is authorized and empowered by law to convey the property hereinafter described ; NOW THEREFORE , in consideration of the premises and the sum of Ten Dollars ( $ 10 . 00 ) and other good and valuable considerations , the receipt whereof are hereby acknowledged, the Grantor does hereby convey to the Grantees that certain real property situate, lying and being in Duval County, Florida , described as See Exhibit A attached TOGETHER WITH all riparian rights thereunto belonging or in anywise appertaining . By acceptance of this deed, Grantees herein hereby agree that the use of the property described herein shall be subject to the covenants and restrictions as set forth in the Grant Award Agreement attached hereto as Exhibit B . These covenants and restrictions shall run with the title to the property herein described . If any of the covenants and restrictions of the Grant Award Agreement are violated by Grantees or by some third party with the knowledge of Grantees , fee simple title to the property described herein shall be conveyed to the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida in 'Q accordance with the Grant Award Agreement without further notice to Grantees , their successors and assigns , and Grantees , their successors and assigns shall forfeit all right , title and interest in and to the property described herein . ' 4 Book 10824 Page Bills This conveyance is subject to easements , restrictions , limitations and conditions of record if any now exist , but any such interests that may have been terminated are not hereby reimposed . Grantor does hereby covenant that Grantor is duly qualified and acting Personal Representative of the Estate of said decedent as aforesaid , with lawful authority to execute this instrument ; and that Grantor will defend said lands against the lawful claims of any persons whomsoever claiming or holding by, through or under Grantor . THIS DEED IS BEING GIVEN SOLELY FOR THE PURPOSE OF CORRECTING THE LEGAL DESCRIPTION IN THAT CERTAIN DEED RECORDED IN O . R. BOOK 8894 , PAGE 1188 , CURRENT PUBLIC RECORDS OF DUVAL COUNTY , FLORIDA . IN WITNESS WHEREOF, Grantor has executed this deed under seal the day and year first above written . SI cD AND EALED IN OUR PRESENCE ; rAdhoi CSILSE Wi re easpr • „ e r a'1 r: I i • it RENTZ , as Persona' R • sentative of the Estate- q IOWA er E . Dutton, deceased de �f�. . . . � W mess printrame ierairitn , , STATE OF FLORIDA COUNTY OF DUVAL The foregoin • ,hptrument was acknowledged before me this At... day of 4I, I 2002 , by Ceylon Rentz , as Personal Representative of the Estate of Walter E . Dutton , deceased, who is personally known to me or who have produced as identification and who did take an oath . NOT , • Y PUBLIC : Ink / WW � Pr nted name : ` " „ , • a . - . State and coun y aforesa . • ( Sea . ) My Commission Expires : (egg/ of ( 1 a !"/% -.4 Conumitakm► Ra CC 9:5153 A . My Comnmissson Explma et291 1 : Book 10824 Page 2118, i I DUTTON ISLAND LEGAL DESCRIPTION A PART OF UNSURVEYED SECTION 7, TOGETHER WITH A PART OF SECTION 40, CLAIM OF BARTOLOME DE CASTRO Y FERRER, ALL LYING a. IN TOWNSHIP 2 SOUTH, RANGE 29 EAST, DUVAL COUNTY, FLORIDA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: tor COMMENCE AT TEE NORTHEAST CORNER OF SECTION 18, TOWNSHIP 2 ea SOUTH, RANGE 29 EAST, OF SAID COUNTY; THENCE SOUTH 00° 23' 10" EAST, ALONG THE EASTERLY LINE OF SAID SECTION 18, A DISTANCE OF I0.00 FEET TO AN INTERSECTION WITH. THE CENTER LINE OF DUTTON DRIVE (A 66.00 FOOT RIGHT OF WAY AS NOW ESTABLISHED); THENCE NORTH 89° 49' 10"WEST, ALONG THE CENTERLINE OF SAID MUTTON DRIVE, A DISTANCE OF 1298. 03 FEET TO A POINT OF CURVATURE OF A CURVE CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 573.69 FEET, AND A CENTRAL ANGLE OF 44° 05' 00"; THENCE ALONG AND AROUND THE ARC OF SAID CURVE, CONTINUING ALONG SAID CENTER LINE, A DISTANCE OF 441.40 FEET TO TEE POINT OF TANGENCY (SAID ARC SUBTENDED BY A CHORD BEARING AND DISTANCE OF, SOUTH 68° 08' 20" WEST, 430.59 FEED; THENCE SOUTH 46° 05' 50" WEST, CONTINUING ALONG SAID CENTER LINE, A DISTANCE OF 675.29 FEET TO A POINT OF CURVATURE OF A CURVE CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 573.69 FEET, AND A CENTRAL ANGLE OF 49° 16' 20"; THENCE ALONG AND AROUND THE ARC OF SAID CURVE, CONTINUING ALONG SAW CENTER LINE, A DISTANCE OF 493.35 FEET TO THE POINT OF TANGENCY (SAID ARC SUBTENDED BY A CHORD BEARING AND DISTANCE OF, SOUTH 70° 44' 00" WEST, 478.29 FEET); THENCE NORTH 84° 37' 50" WEST, CONTINUING ALONG SAID Cr CENTER LINE OF DUTTON DRIVE, AND THE WESTERLY PROLONGATION THEREOF, A DISTANCE OF 398 FEET MORE OR LESS,TO AN INTERSECTION WITH THE 2.25 FOOT ELEVATION CONTOUR LINE OF DUTTON ISLAND, SAID CONTOUR LINE BEING THE MEAN HIGH WATER LINE AS ESTABLISHED BY THE DEPARTMENT OF NATURAL RESOURCES, STATE OF FLORIDA, ALSO BEING THE POINT OF BEGIINNING ; FROM THE ABOVE DESCRIBED POINT OF BEGINNING, RUN THENCE NORTHERLY, WESTERLY, SOUTHERLY, EASTERLY, AND 0. NORTHEASTERLY, FOLLOWING ALONG THE AFOREMENTIONED 2.25 FOOT CONTOUR LINE AND SAID MEAN HIGH WATER LINE, A DISTANCE OF 7,979 FEET MORE OR LESS, TO THE POINT OF BEGINNING. CONTAINING 37. 77 ACRES, MORE OR LESS. tr- EXHIBIT A • . , • • Book 10824 Page 2117 This document prepared by ; Ann J . Wild Florida Communities Trust Department . of community Affairs ar 2555 Shumard Oak Blvd . Tallahassee , FL, 32399 FLORIDA COMMUNITIES TRUST P56 AWARDa 95 - 058 -P56 ACT Contract. Q $ - {;7 _ 3- 1-55-13to- i 1- oet GRANT AWARD AGREEMENT I _, THIS AGREEMENT is entered into this ay of � �,rr. ) , 199 , by and between the FLORIDA COMMENT IES TRUST ( "PC " ) , a nonregulatory, agency within the State of Florida Department of Community Affairs , and CITY OF ATLANTIC REACH and CITY OF JACKSONVILLE ( FCT Recipient ) , a local government of the state of Florida ( " FCT Recipient" ) , in order to impose terms , conditions , and reatrictiona on the use of the proceeds of certain bonds , hereinafter described , • and the lands acquired with such proceeds and as described in Exhibit "A" attached hereto and made a part hereof ( "Project Site" ) , as shall be necessary to ensure compliance with applicable Florida Law and federal income tax law and to otherwise implement provisions of Chapters 253 , 259 , and 360 , Florida Statutes . WHEREAS , Part III Chapter 380 , Florida Statutes , the Florida communities Trust Act , creates a nonregulatory agency within the Department of Community Affairs , which will assist local governments in bringing into compliance and implementing the conservation , recreation and open space , and coastal elements of their comprehensive plans and in otherwise conserving natural resources and resolving land use conflicts by providing financial assistance to local governments to carry out projects and activities authorized by the Florida Communities Trust Act ; WHEREAS , Section 1 of the Florida Preservation 2000 - Act provides for the distribution of ten percent ( 10 % ) of the net Preservation 2000 Revenue Bond proceeds to the Department of Community Affairs to provide land acquisition grants and loans to local governments through the FCT ; WHEREAS , the Governor and Cabinet authorized the sale and issuance of State of Florida Department of Natural Resources Preservation 2000 Revenue Bonds ( " Sonde " ) ; GAA\95-058 -P56 08 -28 - 1997 1 r I I Exhibit am, (1.01 . ) Rook 10824 Page 211 • WHEREAS , the Bonds were issued as tax-exempt bands , meaning 4. that the interest on the Bonds is excluded from the gross income of Bondholders for federal income tax purposes ; WHEREAS , Rule 9K-4 . 020 ( 2 ) ( f) , F . R . C . , authorizes FCT to impose conditions for funding on those PC? applicants whose projects have re been selected for funding in accordance with Rule Chapter 9K- 4 , e Face " SC ra WHEREAS , the FCT has approved the terms under which the Project Site is acquired and the deed whereby the FCT Recipient acquires title to the Project Site Shall contain such covenants and 4. restrictions as are sufficient to ensure that the use of the Project Site at all times complies with Section 375 . 051 , Florida Statutes and Section 9 , Article XII of the State Constitution and shall contain clauses providing for the conveyance of title to the Project site to the Board of Trustees of the Internal Improvement Trust Fund upon the failure of the FCT Recipient to use the Project Site acquired thereby for such purposes ; and WHEREAS , such covenants and restrictions shall be imposed by an agreement which shall describe with particularity the real property which is subject to the agreement and shall be recorded in the county in which the real property is located ; and WHEREAS , the purpose of this Agreement is to set forth the covenants and restrictions that are iepossd on the Project Site subsequent to its acquisition with the FCT Preservation 2000 Bond . award . NOW THEREFORE , in consideration of the mutual covenants and undertakings set forth herein , and other good and valuable consideration , the receipt and sufficiency of which is hereby acknowledged , FCT and FCT Recipient do hereby contract and agree as follows : GENERAL CONOyyypON S . 1 . Upon execution and delivery by the parties hereto , the FCT Recipient shall cause this Agreement to he recorded and filed in the official public records of Duval County , Florida , as Exhibit " B " of the warranty deed vesting fee simple title to the Project Site in the FCT Recipient , and in such manner and in such other places as FCT may reasonably request , and shall pay all fees and charges incurred in connection therewith . I 2 . The FCT Recipient and FCT agree that the State of Florida Department of Environmental Protection will forward this Agreement to Department of Environmental Protection Bond Counsel for review . In the event Bond Counsel opines that an amendment is required to I this Agreement so that the tax exempt status of the Preservation GAA\ 95-058 -P56 08 - 28- 1997 2 3 Exhibit 13 i 2 2, of , ) �.. . _ . 1 Z . . . t ffi 1r44 s 4 r g� .g {� �y OS .g • B 1 ook a Page aii9 4 2000 Bonds is not jeopardized , FCT and FCT Recipient shall amend the Agreement accordingly . 3 . This Agreement may be amended at any time . Any amendment must be set forth in a written instrument and agreed to by both the FCT Recipient and FCT . d . This Agreement and the covenants and restrictions contained herein shall run with the Property herein described and shall bind , and the benefits shall inure to , respectively , the FCT and the FCT Recipient and their respective successors and assigns . 5 . This Agrat <•. ent shall ba governed by and construed in accordance with the laws of the State of Florida , with respect to both substantive rights and with respect to procedures and remedies . 6 . Any notice required to be given hereunder shall be given by personal delivery , by registered mail or by registered expedited service at the addresses specified below or at such other addresses au may be °pacified in writing by the parties hereto , and any such notice shall be deemed received on the data of delivery if by K personal delivery or expedited delivery service , or upon actual receipt if sant by registered mail. . Far : Florida Communities Trust Department of Community Affairs 2555 Shemard Oak Blvd . Tallahassee , FL 32399e2100 ATTN : Executive Director FCT Recipient : City of Atlantic Beach 800 Seeinole $ osd . Atlantic Beach , FL 32223 City of Jagkaonv , lle 117 West Duval Street . Jacksonville , FL 32202 ATTN : Vicki Reynaldo 7 . If any provision of the Agreement shall be invalid , illegal or unenforceable , the validity , legality and enforceability of the remaining provisions shall not in any way be affected or impaired . II . PROJECT SITE g1QI d°rS tamp BY CHAPTER 259 , CfAr� w 37 $ , C '-°° R 300 , PART III , rrobnaris STATCTSS . 1 . re any essential term or condition of this grant agreement is violated by the FCT Recipient or by some third party with the knowledge of the FCT Recipient and the FCT Recipient does not correct the violation within 30 days of notice of the violation , fee simple title to all interest in the Project Site GAA\95 -•058 -P56 O8e28 - 1997 3 Extort , , Book 10824 Page 2120 shall be conveyed to the Board of Trustees of the Internal Improvement Trust Fund . The FCC' shall treat such property in accordencetwitb Section 380 . 508 ( 4 ) ( e ) , Florida Statutes . 2 . Any transfer of the ' Project Site shall be subject to the approval of FCT and FCT shall enter into a new agreement with the transferee , containing such covenants , clauses , or other restrictions as are sufficient to protect the interest of the people of Florida . 3 . The interest , if any , acquired by the FCT Recipient in the Project Site will not serve an security for any debt of the FCT Recipient unless FCT approves the transaction . 4 . If the existence of the FCT Recipient terminates for any reason , title to all interest in real property it has acquired with the FCT award shall be conveyed to the Board of Trustees of the Internal Improvement Trust Fund , unless FCT negotiates an agreement with another local government or nonprofit organization which agrees to accept title to all interest in and to manage the Project Site . 5 , In the event that the Project site is damaged or destroyed or title to the Project Site , or any part thereof , is taken by any governmental body through the exercise or the threat of the exercise of the power of eminent domain , the FCT Recipient shall deposit with the FCT any insurance proceeds or any condemnation award, and shall promptly commence to rebuild , replace , repair or restore the Project Site in such manner as is consistent with the Agreement . The pct shall make any such insurance proceeds or condemnation award moneys available to provide funds for such restoration work. In the event that the FCT Recipient fails to commence or to complete the rebuilding , repair , replacement or restoration of the Project Site after notice from the PCT , the FCT shall have the right , in addition to any other remedies at law or in equity , to repair , restore , rebuild or replace the Project site so as to prevent the occurrence of a default hereunder . Notwithstanding any of the foregoing , FCT will have the right to seek specific performance of any of the covenants and restrictions of this Agreement concerning the construction and operation of the Project Site . • 1=I . MINOT UTE OBLIGATIONS MOB= BY Ft;T ON TEE PCT B.BoiPismT . 1 . The Project Site shall be managed only for the conservation , protection and enhancement of natural and historical resources and for pensive , natural resource -based public outdoor recreation which is compatible with the conservation , protection and enhancement of the Project Site , along with other related uses GAA\95--058 --P56 08 -28 -1997 4 a Exhibit 15 ( if of _ ) • Rook 10824 Page 2121 necessary for the accomplishment of this purpose . The proposed uses for the Project Site are specifically designated in the Project Man as approved by ?CT . 2 . The FCT Recipient shall prepare and submit to FCT an annual report as required by Rule 9X- 4 . 013 , F . A . C . 3 . The FCT Recipient shall ensure that the future land use designation assigned to the Project Site is for a category dedicated to open space , conservation , or outdoor recreation uses as appropriate . If an amendment to the PCT Recipient ' s comprehensive plan is required to comply with this paragraph , the amendment shall be proposed at the next comprehensive plan amendment cycle available to the PCB' Recipient , 4 . FCT Recipient shall ure , and provide evidence thereof to FCT , that all activities under tide Agreement comply with all applicable local , state , regional and federal laws and regulations , including zoning ordinance ® and the adopted and approved comprehensive plan for the jurisdiction as applicable . evidence shall be provided to FCT that all required licenses and permits have been obtained prior to the commencement of any construction . 5 . The FCT Recipient shall , through its agents and employees , prevent the unauthorized use of the Project Site or any use thereof not in conformity with the FCT approved project plan . 6 . FCT staff or its duly authorized representatives shall - have the right at any time to inspect the Project Site and the operations of the FCT Recipient at the Project Site , 7 . All buildings , structures , improvements , and signs shall require the prior written approval of FCT as to purpose . Further, tree removal , other than non-native species , and/ or major land alterations shall require the written approval of PCT . The approvals required from FCT shall not be unreasonably with - held by FCT upon sufficient demonstration that the proposed structures , buildings , improvements , signs , vegetation removal or land alterations will not adversely impact the natural resources of the Project Site . The approval by FCT of the FCT Recipient ' s management plan addressing the items mentioned herein shall be considered written approval from FCT . 8 . If archaeological and historic sites are located on the Project site , the FCT Recipient shall comply with Chapter 267 , Florida Statutes . The collection of artifacts from the Project Site or the disturbance of archaeological and historic sites on the Project Site will be prohibited unless prior written authorization has been obtained from the Department of State , Division of Historical Resources . G \95-058 -P56 08 - 28 - 1997 5 fxhibii cb t o12-. ) ) r.. . . _ in _ _ -- i . Book 10624 Page 2122 ',:'',.'''';'' 9 . The FCT Recipient shall ensure that the Project Site is identified as being publicly owned and operated as a passive , natural ressourca-based public outdoor recreational site in all signet literature and advertising regarding the Project site . The FCT Recipient shall erect a aign ( s ) identifying the Project Site as being open to tha public and as having been purchased with funds from PCT and rc'1' Recipient . 8 OBLIGATIONS IXCV; + DI PCT REC/PItee SUET or SOS e. PROCEEDS BEING UTILIZED TO ? ► e a Rl E .. ag PROJECT SITE . 1 . If the Project Site is to remain subject , after its acquisition by the State and the FCT Recipient , to any of the below • listed activities or interests , the FCT Recipient shall provide at leant 60 days written notice of any such activity or interest to e. FCT prior to the activity taking place , and shall provide to FCT such information with respect thereto as PC°I reasonably requests in order to evaluate the legal and tax con- sequences of such activity or interest : e. a . any lease of any interest in the Project Site to a IP non-governmental person or organization ; b . the operation of any concession on the Project Site to a non-governmental person or organization ; c . any sales contract or option to buy things attached to the Project Site to be severed from the Project Site , with a non--governmental person or organization ; de any use of the Project Site by non-governmental persons other than in such persons capacity as a member of the general public ; m. e . a management contract of the Project Site with a non -governmental person or organization ; and e. f . such other activity or interest as may be specified from time to time in writing by FCT to the FCT Recipient . 2 . FCT Recipient agrees and acknowledges that the following transaction , events , and circumstances may not be permitted on the Project Site as they may have negative legal and tax consequences under Florida law and federal income tax law : e. a . a sale of the Project Site or a lease of the Project Site to a non-governmental person or organization ; b . the operation of a concession on the Project Site by a non-governmental person or organization ; G \95 -056 ®PS6 08 -28 ®1997 6 1 Exhibit IL l ( ft of, °21 ) 44 W ' Book 10824 Page 2123 co 4. a sale of things attached to the Project Site to be severed from the Project Site to a non-governmental person or organization ; do any change in the character or use of the Project Site from that use expected at the date of the issuance of any series of bonds from which the disbursenant is to be made ; 7. 0 . any use of the Project Site by non-governmental persons other than in such parson ' s capacity as a member of the general public ; T . a management contract of the Project Site with a nonegovernmental p® on or organization ; and g . such other activity or interest as may be specified from time to time in writing by FCT to the FCT Recipient . b. DELEGATIONS AND CONTRACTUAL ARRANGEMENTS BETWEEN THE FCT RECIPIENT AND, OTHER GdVERN ENTAL BODIES , NOT FOR PROFIT ENTITIES , OR NON GOVERNMENTAL PERSONS FOR USE OR MANAGEMENT OF THE PROJECT SITE WILL ot IN NO RAY num THE FCT RECIPIENT OF THE RESPONSIBILITY TO ENSURE THAT THE CONDITIONS IMPOSED IN ON THE PROJECT SITE AS A RESULT OF UTILIZING BOND PROCEEDS TO ACQUIRE THE PR SITE ARE FULLY COMPLIED WITH BY THE CONTRACTING PARTY . v . coNDITIONG . PARTECULAR TO T' e PROJECT SITS AS A MOLT of ` 't* PCT APPROVED . e: 1 G :y 4, a ~: n , 1 . The PCT Recipient shall provide outdoor recreational facilities including nature trails , interpretive signage , observation areas , restrooms and limited parking on the Project Site . The facilities shall be developed in a manner that allows the general public reasonable access for observation and appreciation of the significant natural resources on the Project Site without causing harm to than resources . 2 . The timing and extent of a vegetative communities and plant species survey of the Project Site shall be specified in the management plan . The FCT Recipient shall detail how the survey shall be used during development of the site to insure the protection , restoration , and preservation of the natural resources on the Project Site . 3 . ' The coastal hammock , pine flatwoods and saltmarsh communities that exist on the Project Site shall be preserved and appropriately managed to ensure the long-term viability of these vegetative communities . 4 . The Project Site shall be managed in a manner that optimizes habitat for listed wildlife species that utilize or could G \95- 058 -P56 08 -29 -1997 7 Exhibit , ., t 1 °f ib 1 • • Book 10824 Page 2124 potentially utilize the Project Site , including the manatee , bobcat , muskrat , river otter and listed wading birds . The Fa Recipient 'shall coordinate with the Game and Freshwater Fish Commission and Department of Environmental Protection ' s Office of Protected Species Management on the management of the Project on the management of the Project Site for the protection of listed species and listed species habitat . The FCT Recipient shall also conduct periodic surveys of listed species using the Project site and develop informational signs relating to the protection of listed animal species and their habitat . 5 . The PcT Recipient shall ensure that the Project Site and listed animal species and their habitat are sufficiently buffered from the adverse impacts of adjacent land uses . . 6 . The FCT Recipient shall restore 18 acme of the Project Site by removing exotic vegetation , replanting trail roads with native vegetative species , restoring the aquatic habitat of the freshwater lake and adding culverts to the dike road to restore the hydrology of the saltmarh . . 7 . The PCT Recipient shall coordinate with the St . Johns River Water Management District in the development of a hydrologic restoration plan for the Project Site , 8 . A vegetation analysis of the Project site shall be performed to determine which areas of the Project Site need a prescribed burning regime implemented to maintain natural fire- dependent vegetative communities . The FCT Recipient shall coordinate with Division of Forestry and Game and fresh Water Fish Commission on the development of a prescribed burn plan for the Project Site . 9 • The FCT Recipient shall remove all trash and debris from the Project Site . 10 . Prior to the commencement of any proposed development activities , measures will be taken to determine the presence of any archaeological sites . All planned activities involving known archaeological sites or potential site areas shall be closely coordinated with the Department of State , Division of Historic Resources , in order to prevent the disturbance of significant sites . 11 ., Access to the Project Site by pedestrians , bicyclists and persons on non-motorized vehicles shall be promoted except in those areas where resource protection considerations warrant limiting access . GAA\ 95- 058 -P56 0 $ - 28 -1997 8 Exhibit sue_ ( t of 2" � ) •