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HomeMy WebLinkAbout2007-374 -r x BEACH RE-NOURISHMENT USE AGREEMENT BETWEEN BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA AND INDIAN RIVER COUNTY, FLORIDA Use Agreement No. U-0354 THIS USE AGREEMENT ("use agreement") is hereby made and entered into by and between the BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA, hereinafter referred to as "GRANTOR", MdL;NDIAN ER COUNTY, FLORIDA, hereinafter referred to as "GRANTEE" on this __6_L_ dayofJAni4sLrj 2008. WITNESSETH WHEREAS, GRANTOR is the owner of the hereinafter described real estate property, commonly known as Sebastian Inlet State Park ("Park" or "premises"), which is managed by the Slate of Florida Department of Environmental Protection, Division of Recreation and Parks ("DRP") under GRANTOR' S Lease No. 2457; and WHEREAS, GRANTEE is embarking upon a shore protection project ("project') in the Park; and WHEREAS, in undertaking the project, GRANTEE desires to temporarily place and maintain pipeline and equipment upon certain portions of the Park, place beach quality sand on the beach in the park, and obtain a beach assess corridor as depicted in Exhibit "A" attached hereto and made part hereof; and WHEREAS, DRP has agreed to the proposed use of the Park under this use agreement. NOW THEREFORE, in consideration of the faithful and timely performance of and compliance with all the terms and conditions stated herein, GRANTOR has entered into this use agreement with GRANTEE to allow GRANTEE to use a certain portion of the Park, in Indian River County, Florida, as depicted in Exhibit "A" of this use agreement subject to the following terms and conditions: I . DELEGATIONS OF AUTHORITY: GRANTOR'S responsibilities and obligations herein shall be exercised by the Division of State Lands, State of Florida Department of Environmental Protection, pursuant to Chapter 18-2, Florida Administrative Code, and applicable delegations of authority. 2. TERM: The use agreement commences on the execution date of this use agreement and ends on May I , 2008, unless sooner terminated by GRANTOR or otherwise extended in writing by both parties to this use agreement. - 3. EXTENT OF AGREEMENT: This use agreement covers the use of the premises for the purposes of construction, operation and maintenance of a sand transmission pipeline and placing dredged materials in a certain area within that portion of the Park as depicted in Exhibit "A" of this use agreement. 4. UNDUE WASTE : GRANTEE shall not commit undue waste to the premises. Existing beach/dune vegetation shall be disturbed only to the minimum extent necessary for construction, construction access, and other permitted activities as determined at the preconstruction meeting between GRANTEE and the park manager of the Park ("Park Manager') and/or other representatives of DRP. Upon completion or termination of the project, GRANTEE, at its sole cost and expense, shall restore landscape features and coastal vegetation damaged during construction to pre-existing or better condition to the satisfaction of the Park Manager. Vegetation shall be replaced with plants of same species or, by authorization of the Park Manager with other indigenous salt resistant vegetation suitable for beach and dune stabilization. 5 . COORDINATION WITH PARK MANAGER: All activities of GRANTEE under this use agreement shall be coordinated with the Park Manager through an onsite preconstruction meeting and through communication with GRANTEE. Project specifies, including location of staging areas, use of park roads for Page 1 of 7 Use Agreement U-0354 access, starting dates, location of pipeline within the Park and the distance of dredged material disposal into the Park, shall be identified at the pre-construction meeting and approved by the Park Manager and/or DRP. Issues arising from the pre-construction meeting will be resolved by mutual agreement between GRANTOR and GRANTEE. 6. RIGHT OF INSPECTION: GRANTOR, DRP or their duly authorized agents shall have the right at any time to inspect the works and operation of GRANTEE, pertaining to this use agreement. 7. PROPERTY RIGHTS: This use agreement constitutes permissive use only, and the placing of temporary or permanent facilities or related structures upon public property pursuant to this use agreement is prohibited. GRANTEE agrees that it does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the premises, by virtue of this use agreement or its occupancy or use hereunder. 8. USE OF PROPERTY: This use agreement shall be non-exclusive. GRANTOR, DRP, or their duly authorized agents, shall retain the right to enter the premises covered by this use agreement or to engage in management activities not inconsistent with the use herein provided for, and GRANTOR shall retain the right to grant compatible uses of the premises subject to this use agreement to third parties during the term of this use agreement. 9. LIABILITY: In consideration of the privilege herein granted, GRANTEE will not claim any damages from GRANTOR or DRP in connection with or on account of any injuries or damages arising in or on the premises while being used by GRANTEE and its agents, representatives and employees. GRANTEE shall maintain a program of insurance covering its liabilities as prescribed by Section 768.28, F.S., and shall be responsible for the acts or omissions of its officers, employees, representatives, and agents in the event that such acts or omissions result in injury to persons or damage to property. GRANTOR does not warrant or represent that the premises are safe or suitable for the purpose for which GRANTEE is permitted to use them, and GRANTEE assumes all risks in its use. 10. ASSIGNMENT: This use agreement is personal to GRANTEE and may not be transferred or assigned without the prior written approval of GRANTOR it . REMOVAL OF DEBRIS: GRANTEE shalt clear, remove and pick up all of its debris including but not limited to mud containers, oil containers, papers, discarded tools and trash foreign to the work locations and dispose of the same offsite in such a manner as to leave work locations clean and free of any such debris on a daily basis. 12. ARCHAEOLOGICAL AND HISTORIC SITES: Execution of this use agreement in no way affects either of the parties' obligations pursuant to Chapter 267, Florida Statutes. The collection of artifacts or the disturbance of archaeological and historic sites on state-owned lands is prohibited unless prior authorization has been obtained from the Division of Historical Resources, State of Florida Department of State. 13. TRIPLICATE ORIGINALS : This use agreement is executed in triplicate originals each of which for all purposes shall be considered an original. 14. COMPLIANCE WITH LAWS: This use agreement is contingent upon and subject to GRANTEE obtaining all applicable permits and complying with all applicable permits, regulations, ordinances, rules, and laws of the State of Florida, the United States or of any political subdivision or agency thereof. 15 . RESPONSIBILITY FOR COMPLIANCE: GRANTEE shall bear the full and ultimate responsibility and liability to GRANTOR for the faithful and timely compliance with the terms and conditions set forth herein. 16. TITLE: GRANTOR neither warrants title to the premises nor guarantees the suitability of the premises for any particular use. 17. DAMAGE: GRANTEE shall not damage the premises, or unduly interfere with public or private rights therein. 18. VENUE: GRANTEE waives venue as to any litigation arising from matters relating to this use agreement and any such litigation between GRANTOR and GRANTEE shall be limited and maintained only in Leon County, Florida - 19. "TERMINATION: GRANTEE by acceptance of this use agreement, binds itself, its successors and assigns, to abide by the provisions and conditions herein set forth, and said provisions and conditions shalt be deemed covenants of GRANTEE, its successors and assigns. In the event GRANTEE fails or refuses to comply with the provisions and conditions herein set forth or in the event GRANTEE violates any of the provisions and conditions herein, the GRANTOR shall give notice to GRANTEE that curative action must be completed within Page 2 of 7 Use Agreement U-0354 thirty days. In the event that the matter is not resolved within the thirty day curative period, GRANTOR may elect to terminate this use agreement by means of a letter of termination notifying GRANTEE that the use agreement is terminated. In the event that this use agreement is terminated by GRANTOR, all rights inuring to GRANTEE or its successors shall cease upon the effective date of the letter of termination with the exception of those activities necessary to demobilize and remove personnel and equipment but GRANTEE'S obligations and responsibilities under paragraphs 9 and 21 of this use agreement shall survive termination. 20. NOTICE: All notices required to be given by GRANTOR to GRANTEE or by GRANTEE to GRANTOR by this use agreement or applicable law or administrative rules shall be sufficient if sent by U.S. Mail to the following address: - If for GRANTEE: Jonathon Gorham Coastal Resource Manager Indian River County Public Works Department 4375 43rd Avenue, Unit 102 Vero Beach. Florida 32967 If for GRANTOR: c/o State of Florida Department of Environmental Protection Division of Recreation and Parks Office of Park Planning, Mail Station 525 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Attention: Bureau Chief GRANTEE, GRANTOR, and their respective successors shall notify each other by certified mail of any changes to the above addresses at least ten ( 10) days before the change is effective. 21 . REMOVAL OF EQUIPMENT: If GRANTEE does not remove any equipment occupying the premises after expiration or cancellation of this use agreement within sixty days of the date of expiration or effective date of the letter of termination referenced in paragraph 19, such equipment will be deemed forfeited to GRANTOR, and GRANTOR may authorize removal and may sell such forfeited equipment. However, such remedy shall be in addition to all other remedies available to GRANTOR under applicable laws, rules and regulations including the right to compel removal and the right to impose administrative fines. 22. ENFORCEMENT OF PROVISIONS: No failure, or successive failures, on the part of GRANTOR to enforce any provision nor any waiver or successive waivers on its part of any provision herein, shall operate as a discharge thereof or render the same inoperative or impair GRANTOR to enforce the same upon any renewal thereof or in the event of subsequent breach or breaches. 23 . AGREEMENT: This use agreement is the entire and only agreement between the parties. Any amendment or modification to this use agreement must be in writing and must be accepted, acknowledged and executed by GRANTEE and GRANTOR. 24. SOVEREIGNTY SUBMERGED LANDS: This use agreement does not authorize the use of any lands located water ward of the erosion control line or any other applicable mean or ordinary high water line of any lake, river, stream, creek bay, estuary, or other water body or the waters or the air space above. 25. PROHIBITIONS AGAINST LIENS OR OTHER ENCUMBRANCES: Fee title to the premises is held by GRANTOR and DRP has a leaschold interest in the premises. GRANTEE shall not do or permit anything to be done which purports to create a lien or encumbrance of any nature against the real property contained in the premises including, but not limited to, mortgages or construction liens against the premises or against any interest of GRANTOR or DRP therein. 26. GOVERNING LAW: This use agreement shall be governed by and interpreted according to the laws of the State of Florida. 27. PARTIAL INVALIDITY: If any term, covenant, condition or provision of this use agreement shall be ruled by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 28. SPECIAL CONDI'r1ONS: GRANTEE, GRANTEE' S designee, employees, agents and assigns shall comply with the following special conditions which are a part of this use agreement: Page 3 of 7 Use Agreement U-0354 A. Meet with the Park Manager or his designee to locate the dredge pipeline. B. Coordinate any staging areas in the Park with the Park Manager. Fuel will be kept in a double walled container with a catch basin, and refueling operations will be conducted within the approved staging area only. C. Access the beach at points designated by the Park Manager to protect Park facilities and plants. Access at Crossover (R-2.5) must have the approval of the United States Fish and Wildlife Service. D. Provide signage to prevent access to the staging area and into the worksite. E. Take all necessary safety measures as determined by Park Manager to ensure the safety of Park visitors during all construction processes. Provide appropriate signage when requested. F. Meet with the Park Manager or his designee regarding after hour permits for entering the Park after Park operating hours. G. Follow the Park Manager's instructions concerning special park rules with special regards to protection of the Park's plants and animals, vehicular traffic and Park visitors. H. Stop at the ranger station upon entering the Park. L Provide and maintain crossings for vehicular and pedestrian access over sections of the pipeline not within the project work zone. The crossing locations will be determined on site by GRANTEE and Park Manager. Additional crossings or underpasses for shorebirds may be required in the event that shorebirds nest and fledge young on the landward side of the pipeline. J. Work cooperatively with the Park Manager and Park biologists to resolve issues regarding safety, access, or environmental concerns resulting from this project. K. Meet with the Park Manager or his designee during the construction phase of the project. The time and frequency of such meeting shall be agreed to by the Park Manager and GRANTEE' S representative prior to commencement of construction. L. Establish a safe zone around the area to be worked by heavy equipment. M. Not undertake any activity within 200 feet of nesting shorebirds, including, but not limited to, least tems, wilson' s plovers and snowy plovers. N. Construction may not commence in any area which sea turtle nests are known to exist during the 65-day period immediately preceding the date when construction is proposed to commence. A log of the results of sea turtle monitoring and recovery activities shall be kept and a copy submitted upon request to the Chief. Environmental Branch, Jacksonville District, U.S. Army Corp of Engineers, and the Area Engineer, North Florida Area Office, U.S. Army Corps of Engineers. A marine turtle nesting summary report form shall be used for this purpose. Page 4 of 7 Use Agreement U-0354 IN WITNESS WHEREOF, the parties have caused this use agreement to be executed on the day and first above written. BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA W ess By. 40&4�- (: - akt& (SEAL) GLORIA C. BARBER, OPERATIONS t . AND MANAGEMENT CONSULTANT MANAGER, BUREAU OF PUBLIC LAND Print/T pe W ness Name ADMINISTRATION, DIVISION OF STATE LANDS, DEPARTMENT OF ENVIRONMENTAL PROTECTION Witness �`'} "GRANTOR" il 5 PrinuType Witness Name STATE OF FLORIDA COUNTY OF LEON fifigh} The foregoing instrument was acknowledged before me this V\ day of after 08, by Gloria C. Barber, Operations and Management Consultant Manager, Bureau of Public Land Administration, Division of State ands, Florida Department of Environmental Protection, as agent for and on behalf of th Board of Trustees of [he Internal Improvem [ Trust Fund of the State of Florida. She is personally known to me. aa e o 'I rida ri UType Notary Name C Commission Number. i{,., ALEXANDRA ALEXANDRE �s Comtnlssion DD 637056 CommissionExpires: EZr68FebiuW6, ZolI gm��pa Tres Mx twe„a eocmwn e Approv as to Form and Legali y By: ey Page 5 of 7 Use Agreement U-0354 INDIAN RIVER COUNTY, FLORJDA By its Board of County Com is)i4;tn*s.. Sandra L . Bowden , Vice Chairman U / "GRANTEE Date BCC Approved : I lam( Attest: J.K. Barton, Clerk By. ( cal) Deputy Clerk PPROVED J eph A, and, " ar ty Administrator APPR VED AS TO FORM A DI�`G/ rpFICIENC avian/1:' . Fell, Assistant County Attorney STATE OF FLORIDA COUNTY OF INDIAN RIVER he fo egoi ins ent was ac wledged before me this Oi dNQ��9r � � _ day Board , loner by �__ 1 Chairman, on behalf of the Boazd of County Commissioners of Indian River County, Florida . IIe/she is personally known to me. otary Public, State of Florida R-6V45IL7k5 Print/Type Notary Name Commission Number: moo`""Y.:6cr� DARCY R. VASILAS MY COMMISSION 0 DO 391140 Commission Expires : � EXPIRES: GJanuary 31 , 2009 O19 OF ROPE BW ThN &iWNotary SONi BS Page 6 of 7 Use Agreement U-0354 EXHIBIT "A" (The following five pages constitute Exhibit "A") Page 7 of 7 Use Agreement U-0354 . • • : - � � iii 1 ��� � •f YN , F;r m���� -Y f ♦ ♦ A t N } qlll'� 7 k:'i• y ® D Sit_ -n r . . . • 11 L .dam m1��aJ[�`-9]SE� 10q a; k , k ��• ZE�W, ®®6iIP®[57£F.3' '♦© •A y14�^! f':aXY ® W •m.® 'A6 h V .YN � S� 4YkA • �I� � un:uiu m � y I I f'I xf 4 �. y ASS , FU f I �r t, } uf; v t r f y c uiii = r } c , rc t; r �I f t ;,�` v '. N, f , 1 . I ' ,' I IF 4 - r RY w } [ E �} f a It f } At LLL 44 LI , s �fXj IF r 5 \ S y P1H t, fIL n FlAtc ye � � k14f f f d li r } f t dF Stk lkrt; r u It } yi }a y -., . If of r f i ' 'IF LL g { fy+ _ h t t ! ° i �,. a s a V vfa Z 4 La,f' t 4�x gkgj plI f � $�' .k fl ' �� � '" ''fCy ,� ' `N 'qtr yw1`�^'�" a arrr ff ' Pkv fir ltkr f yn. 1 i FFOs { FI, IF Fil �. 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