HomeMy Public PortalAbout2017 Grant Agreement for Hampton Lane.pdfDecember 7, 2017
Florida Department of
Environmental Protection
Marjory Stoneman Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Mr. Todd Hofferberth
Director of Parks and Recreation
Village of Key Biscayne
88 West McIntyre Street
Key Biscayne, Florida 33149
RE: Hampton Lane
FCT# 16-006-UA17
Executed Grant Agreement
Dear Mr. Hofferberth:
Rick Scott
Governor
Carlos Lopez-Cantera
Lt. Governor
Noah Valenstein
Secretary
Enclosed please find one fully executed original of the Grant Agreement for the above-referenced
Florida Communities Trust (FCT) Project.
You will be contacted at a later date for additional documentation needed. For further details
regarding these documents and other requirements of the Project Plan, please see Section VI of
the Grant Agreement.
If you have any questions, please contact me at (850) 245-2683 or rita.ventry(c)deo.state.fl.us.
Sincerely,
Rita Ventry, FCCM
Project Planner
Florida Communities Trust
/rv
Enclosures
cc: Linda Reeves, OMC Manager, Land & Recreation Grants Section, DEP
Lois LaSeur, Senior Attorney, DEP
DEP AGREEMENT NUMBER: UA010
FCT PROJECT NUMBER: 16-006-UA17
PROJECT NAME: HAMPTON LANE
CSFA NUMBER: 37.078
GRANT AGREEMENT
THIS GRANT AGREEMENT ("Agreement") is entered into by and between the
FLORIDA COMMUNITIES TRUST ("FCT"), a non-regulatory agency and instrumentality
within the State of Florida, Department of Environmental Protection ("Department'), and the
Village of Key Biscayne, a Florida local government ("Recipient'). All capitalized terms are used
as they are defined in Rules 62-818 and 62-819, F.A.C.
THIS AGREEMENT IS ENTERED INTO PURSUANT TO THE FOLLOWING:
WHEREAS, the intent of this Agreement is to impose terms and conditions on the lands
acquired under the Florida Communities Trust Act ("Project Sites"). These terms and conditions
are necessary to ensure compliance with Florida law and provisions of Sections 259.105, 259.1051
and Chapter 380, Part ^I, Florida Statutes ("F.S.").
WHEREAS, Chapter 380, Part III, F.S., the Florida Communities Trust Act, creates a non-
regulatory agency within the Department to assist local governments in conserving natural
resources, resolving land use conflicts, and implementing and bringing into compliance the
conservation, recreation and open space, and coastal elements of their comprehensive plans by
providing financial assistance to local governments and nonprofit environmental organizations to
carry out projects and activities authorized by the Florida Communities Trust Act.
WHEREAS, Rule 62-818, Florida Administrative Code ("F.A.C.") sets forth the
procedures for the evaluation and selection of lands proposed for acquisition and Rule 62-819,
F.A.C. sets forth the acquisition procedures.
WHEREAS, on April 27, 2017, the FCT Governing Board approved selected projects to
receive approval for funding.
WHEREAS, the Recipient's Project ("Project'), described in an application submitted for
evaluation, was selected for funding in accordance with Rule 62-818, F.A.C., and by executing
this Agreement the Recipient reaffirms the representations made in its application.
WHEREAS, Section 380.507(2)(h), F.S., intended to implement Specific Appropriation
1534 of the 2016-2017 General Appropriations Act, required eligible projects submitted for
funding to provide accessibility, availability, or adaptability of conservation or recreation lands for
individuals with unique abilities and to incorporate adaptations or modifications to the design and
development of recreational resources or equipment to meet the needs of all potential participants
including those with physical or developmental disabilities.
DEP Agreement No. UA010 Page 1 of 20
FCT Project No. 16-006-UA 17
WHEREAS, Rule 62-818.009, F.A.C. authorizes FCT to impose conditions on those FCT
applicants whose projects are selected for funding.
WHEREAS, the purpose of this Agreement is to set forth the condition(s) that must be
satisfied by the Recipient prior to the disbursement of any FCT Florida Forever funds, specify the
restrictions imposed on the Project Site, and establish the site management requirements for the
Project Site after its acquisition.
NOW THEREFORE, FCT and Recipient mutually agree as follows:
1. PERIOD OF AGREEMENT
1. This Agreement shall begin upon execution by both Parties and shall remain in
effect no longer than one year from the effective date of this agreement, inclusive, unless extended
or terminated earlier.
2. FCT may extend this Agreement beyond the Expiration Date if the Recipient
demonstrates that it has made significant progress toward approval of the Project Plan or that
extenuating circumstances beyond the Recipient's control warrant an extension oftime. Recipient
must request an extension in writing, fully explaining the reasons for the delay and why the
extension is necessary. A written request for an extension must be submitted prior to the
Expiration Date.
FCT may, in its sole discretion, consent to an extension of this Agreement. The decision
to consent to an extension and the length of the extension shall depend upon an analysis of various
factors, including the needs and goals of FCT; the ability and willingness of Recipient to perform
under the terms of this Agreement; the good standing of the Recipient (including any entity related
to or affiliated with Recipient); the Recipient's past record of performance, including submission
of required reports and audits (as applicable); and other factors relevant to FCT mandates. FCT,
in its sole discretion, reserves the right not to extend this Agreement beyond the initial term.
If the Recipient does not request a written extension, or if a requested written extension is
not granted by FCT, the Recipient's Award shall be rescinded and this Agreement will terminate
pursuant to its terms and conditions.
H. MODIFICATION OF AGREEMENT
Either Party may request modification(s) of the provisions of this Agreement at any time.
Changes that are mutually agreed upon shall be valid only when reduced to writing and duly signed
by each of the Parties. Such amendments shall be incorporated into this Agreement.
IIl. DEADLINES
1. At least two original copies of this Agreement shall be executed by the Recipient
and returned to the FCT office at 3900 Commonwealth Boulevard MS #115, Tallahassee, FL
32399, as soon as possible and no later than December 8, 2017. If the Recipient requires more
DEP Agreement No. UAO 10 Page 2 of 20
FCT Project No. 16-006-UA17
than one original document, the Recipient shall photocopy the number of additional copies needed
and then execute each as an original document. Upon receipt ofthe signed Agreements, FCT shall
execute the Agreements, retain one original copy, and return all other executed copies to the
Recipient.
2. The Recipient and/or its representatives shall adhere to all Project deadlines and
devise a method for monitoring the Project. FCT will strictly enforce the deadlines provided by
this Agreement in addition to any deadlines associated with any FCT activity relating to the
Project. Recipient's failure to comply with Project deadlines may cause FCT to terminate
this Agreement.
3. The Recipient shall submit the documentation required by this Agreement to FCT
as soon as possible so that FCT may reimburse the Project Costs in an expeditious manner.
4. Upon FCT"s request, the Recipient shall provide a status report of its progress
toward applying for reimbursement of the Project Costs.
5. The Recipient shall develop the Project Site in accordance with the FCT Grant
Award conditions and open the developed Project Site to the public within three (3) years of the
date of final disbursement of the FCT Award or pursuant to the timeline outlined in the approved
Management Plan. The Recipient may request an extension of this provision by requesting a
modification or revision to the approved Management Plan by submitting a written request to the
Trust pursuant to Rule 62-818.01 ](3), F.A.C.
IV. FUNDING PROVISIONS
I. The FCT Florida Forever Award granted to the Recipient ("FCT Award") will in
no event exceed forty percent (40%) of the final Project Costs, and as more fully defined in Rule
62-818.002(33), F.A.C., or Eight Hundred Thirty-Six Thousand ($836,000), unless FCT
approves a different amount. The Recipient shall be reimbursed as outlined in this Agreement, for
eligible costs as defined in Rule 62-818.002(33), F.A.C., and identified in the Project Plan.
The FCT Award is based on the Recipient's estimate of final Project Costs in its
application, as well as the Limitation of Award provided in Rule 62-818.003(7), F.A.C. and
advertised in the Notice of Application. When disbursing the FCT Award, FCT shall recognize
only those Project Costs consistent with the definition in Rule 62-818.002(33), F.A.C. FCT shall
participate in the land cost at either the actual purchase price or the maximum reimbursement
amount, whichever is less, multiplied by the percent stated above. The maximum reimbursement
amount cannot exceed the highest appraised value of the property. If the Recipient purchased the
property for more than the appraised value, FCT can only reimburse a percentage of the appraised
value. If the Recipient purchased the property without obtaining an appraisal, the Recipient is
required to obtain appraisals pursuant to Rule 62-819.007, F.A.C., to determine the value of the
property before the acquisition.
2. The FCT Award shall be delivered either in the form of Project Costs prepaid by
FCT to vendors if additional due diligence products are required, or in the form of a State of Florida
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FCT Project No. 16-006-UA17
warrant. If the Recipient is required to obtain additional due diligence products (e.g. appraisals,
appraisal reviews, surveys, title information, and the like), the cost of those products will be
deducted from the final disbursement amount. Under no circumstances will the award exceed the
maximum reimbursement amount.
3. FCT will prepare a grant reconciliation statement showing the amount of Match
provided by the Recipient (as applicable and if any is required) and showing the amount of the
FCT Award. The grant reconciliation statement will reflect funds expended by FCT for Project
Costs as part ofthe FCT Award.
4. If a Match is required, it must be delivered in an approved form as provided in Rule
62-818.002(25), F.A.C. Funds expended by the Recipient for Project Costs shall be recognized in
the Match amount on the grant reconciliation statement.
5. By executing this Agreement, the Recipient affirms that it is ready, willing, and
able to provide any required Match.
6. If the Recipient is the local government having jurisdiction over the Project Site,
and the Recipient takes action that results in a governmentally-derived higher Project Site land
value because of an "enhanced highest and best use," FCT will terminate acquisition activities
unless the Seller demonstrates that the appraisal(s) were based on the "highest and best use" for
the Project Site prior to the FCT Governing Board selection meeting. Alternatively, the Recipient
can arrange for new appraisals based on the previous highest and best use.
7. FCT`s obligation to pay under this Agreement is contingent upon an annual
appropriation by the Florida Legislature or designated agency, and is subject to modification in
accordance with Chapter 216, F.S. or the Florida Constitution.
8. The accounting systems for all Recipients must ensure that these funds are not
commingled with funds from other agencies. Funds from each agency must be accounted for
separately. Recipients are prohibited from commingling funds on either a program-by-program or
a project-by-project basis. Funds specifically budgeted or received for one project may not be
used to support another project. Where a Recipient's or subrecipient's accounting system cannot
comply with this requirement, the Recipient or subrecipient shall establish a system to provide
adequate fund accountability for each project it has been awarded.
If FCT finds that funds have been commingled, FCT shall have the right to demand a
refund, either in whole or in part, of the funds provided to the Recipient under this Agreement.
The Recipient, upon written notification from FCT, shall refund the amount of money demanded.
Interest on any refund will be based on the prevailing rate used by the State Board of
Administration. Interest shall be calculated from the date(s) the original payment(s) are received
from FCT by the Recipient to the date repayment is made by the Recipient to FCT.
If the Recipient recovers costs from another source that were incurred under this
Agreement and reimbursed by FCT, the Recipient shall reimburse FCT for all recovered funds.
Interest on any refund will be based on the prevailing rate used by the State Board of
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FCT Project No. 16-006-UA17
Administration. Interest will be calculated from the dates the payments are recovered by the
Recipient to the date repayment is made to FCT by the Recipient.
9. FCT shall approve the terms under which the interest in land is acquired pursuant
to Section 380.5 10(3). F.S. Such approval is deemed given when FCT approves and executes this
Agreement.
10. All real property shall be obtained through a Voluntarily-Negotiated Transaction,
as defined in Rule 62-818.002(46), F.A. C. The use ofor threat of condemnation is not considered
a Voluntarily-Negotiated Transaction.
V. NOTICE AND CONTACT
I. All notices between the Parties shall be sent by electronic mail, U.S. Mail, a courier
delivery service, or delivered in person. Notices shall be considered delivered when reflected by
an electronic mail read receipt, a courier service delivery receipt, other mail service delivery
receipt, or when receipt is acknowledged by Recipient to:
Florida Communities Trust
3900 Commonwealth Boulevard, MS41 15
Tallahassee, FL 32399
2. All contact and correspondence from FCT to the Recipient shall be through the key
contact as required by Rules 62-818 and 62-819, F.A.C. Recipient hereby notifies FCT that the
following administrator, officer or employee is the authorized key contact on behalf of the
Recipient for purposes of coordinating project activities for the duration of the Project:
Name: Todd Hofferberth
Organization: Village of Key Biscayne
Title: Director of Parks and Recreation
Address: 88 West McIntyre Street; Key Biscayne, FL 33149
Telephone: 305-365-8900, Ext 1213
E-mail: thofferberth(a)keybiscayne.fl.gov
3. The Recipient authorizes the administrator, employee, officer, or representative
named in this paragraph, as Recipient's agent, to execute all documents connected to this Project
on behalf of the Recipient, including this Agreement, any addenda, purchase agreement(s) for the
property, the grant reconciliation statement.. closing documents, statements submitted as a part of
the Project Plan, and the Declaration of Restrictive Covenants.
Name: John C. Gilbert
Organization: Village of Key Biscayne
Title: Village Manager
Address: 88 West McIntyre Street; Key Biscayne, FL 33149
Telephone: 305-365-5514
Facsimile: 305-365-8936
E-mail: jgilbert@keybiscayne.fl.gov
DEP Agreement No. UA010 Page 5 of 20
FCT Project No. 16-006-UA17
4. If different representatives or addresses are designated for NOTICE AND
CONTACT, specified herein, after execution of this Agreement, notice of the changes shall be
rendered to FCT as provided in NOTICE AND CONTACT, paragraph V. 1. above.
5. The Recipient hereby notifies FCT that the Recipient's Federal Employer
Identification Number(s) is 65-0291811.
Vt. PROJECT PLAN APPROVAL
1. Prior to the final disbursement of the FCT Award, the Recipient shall submit a
Project Plan that complies with Rule 62-819.011. F.A.C. FCT will not consider the Project Plan
unless it is organized with a table of contents and includes the documents required by Rule 62-
819.011. to ensure that the interests of the State of Florida will be protected:
a. A purchase agreement for acquisition of the Project Site, executed by the
owners and the Recipient, based on one or more appraisals prepared
consistent with Chapter 62-819, F.A.C.
b. A letter from the FCT indicating approval of the Management Plan.
C. A statement of the total Project Costs as defined in Chapter 62-818, F.A.C.
d. A statement of the amount of the award being requested.
C. Supporting documentation that any conditions imposed as part of the Grant
Agreement have been satisfied.
f A signed statement by the Recipient that the Recipient is not aware of any
pending criminal, civil, or regulatory violations imposed on the Project Site
by any governmental body or agency.
9.Additional documentation requested by the FCT staff as reasonable
assurance that the Recipient will be able to fulfill its obligations under the
Grant Agreement, the Declaration of Restrictive Covenants, and Chapter
62-818, F.A.C.
2. The Recipient may, and is strongly encouraged to, request a courtesy review of its
Project Plan prior to its submission for approval.
3. Reimbursement for Project Costs will not occur until after FCT approval of the
Project Plan.
DEP Agreement No. UA010 Page 6 of 20
FCT Project No. 16-006-UA 17
VII. REIMBURSEMENT REQUIREMENTS
funds:
The following documents must be submitted to FCT in order for FCT to disburse the grant
1. Documents associated with acquisition of the parcel(s):
a. A copy of the Purchase Agreement(s) for sale and purchase of the parcel(s)
between the Recipient and Thomas Hunter Henderson, 111.
b. A copy of closing statements from Buyer(s) and Seller(s) for the purchase
of the parcel(s).
A copy of the recorded deed(s) conveying title of the parcel(s) to the
Recipient.
d. A copy of the appraisals of the parcel(s) required by Rule 62-819.007
F.A.C.
e. Unless the requirement has been waived, a copy of a Certified Survey(s) of
the parcel(s) that meets the requirements of Rule 62-819, F.A.C. and is
dated within ninety (90) days of the date the Recipient acquired the
parcel(s).
f Copies of all title insurance commitments, including supporting documents,
and title insurance policies, including any endorsements, issued in
furtherance of the Recipient's acquisition of the parcel(s). Such policies
shall meet the requirements of Rule 62-819.005, F.A.C.
9.A copy of environmental site assessments (ESA) of the parcel(s) certified
to the Recipient, which meets the standards and requirements of American
Society for Testing and Materials (`ASTM") Practice E 1527, and with a
date of certification within 90 days ofthe date of acquisition of the parcel(s)
by the Recipient, together with the statement required by Rule 62-
819.012(4), F.A.C.
2. Upon FCT's approval of the Project Plan and the required reimbursement
documents, the Recipient shall submit a completed copy of the FCT Project Reconciliation
Statement, Attachment A, to the FCT Grant Manager.
3. All invoices for approved Project Costs, with proof of payment, shall be submitted
to FCT Grant Manager and be in a detail sufficient for a proper pre-audit and post-audit thereof.
4. Rule 62-818.002(33), F.A.C. states that reasonable real estate fees or commissions
that do not exceed $10,000.00 are eligible Project Costs. To maximize the Florida Forever funds
for land acquisition, FCT will closely review each request for real estate fees or commissions to
DEP Agreement No. UA010 Page 7 of 20
FCT Project No. 16-006-UA 17
determine if the fee or commission is reasonable. FCT will not reimburse or pay any portion of
real estate fees or commissions that FCT determines to be unreasonable. Recipient will be
financially responsible for the portion of the real estate fees or commissions not paid by FCT.
5. The Recipient shall provide the appraisal(s) and the remainder of the required
documents to FCT for review by a date not to exceed ninety (90) days after the execution of this
Agreement. FCT may review the appraisals and other documentation and, upon approval, FCT
will determine the maximum reimbursement amount as provided in Rules 62-818 and 62-819,
F.A.C.
Vill. MANAGEMENT PLAN; ANNUAL STEWARDSHIP REPORT
I . Prior to approval of the Project Plan and final disbursement of the FCT Award, the
Recipient shall submit to FCT and have approved a Management Plan that complies with Rule 62-
818.011, F.A.C. and addresses the criteria and conditions set forth in Articles VIII, IX, X, and XI
herein.
2. The Management Plan outlines how the Project Site will be managed to further the
purposes ofthe Project and outlines the terms and conditions ofthis Agreement. The Management
Plan should include the following types of information:
a. An introduction containing the Project name, location, and other
background information.
b. The Recipient's purpose for acquiring the Project Site and a prioritized list
of management objectives.
A discussion of known natural resources including natural communities,
listed plant and animal species, soil types, and surface and groundwater
characteristics.
d. A description of all proposed uses including existing and proposed physical
improvements.
e. A description of proposed restoration or enhancement activities, if any,
including the objective of the effort and the techniques to be used.
9.
A scaled site plan drawing showing the Project Site boundary, existing and
proposed physical improvements, and any natural resource restoration or
enhancement areas.
The identification and protection of known cultural or historical resources.
h. A description of proposed educational displays and programs the Recipient
will offer, if applicable.
DEP Agreement No. UA010 Page 8 of 20
FCT Project No. 16-006-UA17
A description of how the Recipient will coordinate management of the site
with other agencies and public lands, if applicable.
j A schedule for implementing the development and management activities
of the Management Plan.
k. Cost estimates and funding sources to implement the Management Plan.
1. Coordination plan to allow for safe public access (except for designated
construction zones) to the Project Site. The Recipient is responsible for
maintaining the sections of the Project Site that are safe and not under
construction open and accessible to the public.
3. If the Recipient is not the proposed managing entity, the Management Plan shall
include a signed management agreement between the Recipient and the managing entity providing
criteria for site management and identifying the source of management funding. The managing
entity must comply with the approved Management Plan. The Recipient is ultimately responsible
for overseeing compliance with the Management Plan and the fulfillment of all Management Plan
terms and is liable for any violations of the Management Plan.
If the Recipient is a partnership, the Recipient shall also provide FCT with the interlocal agreement
that sets forth the relationship among the partners and the fiscal and management responsibilities
and obligations incurred by each partner for the Project Site as a part of its Management Plan.
4. To ensure that future management funds will be available for the management of'
the site in perpetuity pursuant to Section 259.105 and Chapter 380, Part III, F.S., the Recipient
may be required to provide FCT with Reasonable Assurance, pursuant to Rule 62-818.002(36),
F.A.C., that it has the financial resources, background, qualifications, and competence to manage
the Project Site in perpetuity in a reasonable and professional manner. Where the Recipient does
not include at least one local government, FCT may require the Recipient to do one, or more, of
the following: (i) post a performance or other bond in an amount sufficient to ensure that the
Project Site is reasonably and professionally managed in perpetuity: (ii) establish an endowment
or other fund in an amount sufficient to ensure performance: (iii) provide a guaranty or pledge by
the local government having jurisdiction over the Project Site requiring the local government to
take over the responsibility for management of the Project Site in the event the Recipient is unable
to; (iv) require the local government to be a named co-signer on the Declaration of Restrictive
Covenants; or (v) provide such other assurances as the Governing Board may deem necessary to
adequately protect the public interest.
5. The Recipient shall, through its agents and employees, prevent any use of the
Project Site that is not in conformity with the FCT-approved Management Plan.
6. As required by Rule 62-818.013, F.A.C., after FCT reimbursement of Project Costs,
the Recipient shall prepare and submit to FCT a stewardship report that documents the progress
made toward implementing the Management Plan. Initially the Recipient must submit the report
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FCT Project No. 16-006-UA17
annually, but after completion of the Project the Trust may, in its discretion, transfer the report to
a five-year review schedule.
IX. SPECIAL MANAGEMENT CONDITIONS
Based on the Management Plan, points awarded in scoring the application, and
observations made by FCT staff during the site visit described in Rule 62-818.009, F.A.C., the
Recipient is required to provide the following:
I FCT Sian - The Recipient shall maintain a permanent FCT recognition sign, a
minimum of 3' x 4'. at the entrance area of the Project Site and visible to the public.
The sign shall include the FCT logo and acknowledge that the Project Site was
purchased with funds from the Florida Communities Trust Program (and the
Recipient if Recipient provided a match). The sign should include the date the site
was acquired.
2. Recreational Facilities - The Recipient shall provide at least three recreational
facilities such as a climbing mound, picnic facility and bocce ball. The Recipient
should endeavor to place facilities and site improvements on previously disturbed
areas to the greatest extent possible.
3. Connectivitv - The Project Site shall connect to adjacent neighborhoods by a
sidewalk within an existing right-of-way.
4. Interpretation - The Recipient shall provide interpretive kiosks on the Project Site
to educate visitors about the natural environment and the unique history of the area.
5. Education Programs - The Recipient shall provide at least six regularly scheduled
environmental or historical education classes or programs per year at the Project
Site conducted by trained educators or resource professionals.
6. Water Quality Facility - The Recipient shall improve the quality of surface waters
or address current flooding problems occurring on, adjacent to, or close to the
Project Site. The water quality facility shall be designed to have a park-like or
natural setting.
X. "UNIQUE ABILITIES" PROJECT REQUIREMENTS:
The Recipient's Project has been deemed a "Unique Abilities" Project, pursuant to Section
380.507(2)(h), F.S. (2016) and Recipient shall develop the Project Site in accordance with the
narrative provided in the project summary and excellence sections of the FCT grant application.
The Project Site must provide accessibility, availability, or adaptability of conservation or
recreation lands for individuals with unique abilities. The Recipient, and all of its subcontractors,
if any, must ensure that both Florida Building Code Accessibility
(https:Hcodes.iccsafe.org/public/document/toc/305/) and Americans with Disabilities Act
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FCT Project No. 16-006-UA17
Accessibility (htlys://www.ada.sov/re,s20lO/titlell 2010/titlell 2010 reeulations.pdf)
regulations and requirements are adhered to in the development and completion of this Project.
X1. DECLARATION OF RESTRICTIVE COVENANTS
REQUIREMENTS IMPOSED BY CHAPTERS 259 AND 380, PART 111, F.S.
1. Each parcel in the Project Site shall be subject to a Declaration of Restrictive
Covenants describing the parcel and containing such covenants and restrictions as are, at a
minimum, sufficient to ensure that the use of the Project Site at all times complies with Sections
375.051 and 380.510, F.S.: Section I I(e), Article VII of the Florida Constitution; and any
provision of the Internal Revenue Code or the regulations promulgated thereunder The
Declaration of Restrictive Covenants shall contain clauses providing for the conveyance of title
to the Project Site, as applicable, to the Board of Trustees of the Internal Improvement Trust
Fund ("Trustees) upon failure to comply with any of the covenants and restrictions, as further
described below.
2. The Declaration of Restrictive Covenants shall also restate the conditions that were
placed on the Project Site at the time of project selection and initial grant approval. The
Declaration of Restrictive Covenants shall be executed by FCT and the Recipient at the time of
grant disbursement and shall be recorded by the Recipient in the county(s) in which the Project
Site is located.
3. If any essential term or condition of the Declaration of Restrictive Covenants is
violated by the Recipient or by some third party with the knowledge of the Recipient, the Recipient
shall be notified of the violation by written notice given by personal delivery, registered mail, or
registered expedited service. The Recipient shall diligently proceed to cure the violation and shall
complete the cure within thirty (30) days after receipt of notice of the violation. If the problem
cannot reasonably be cured within the specified thirty (30) days, the Recipient shall submit a
written request to FCT for an extension. The request shall include the status of the current activity.
the reasons for the delay, and a time frame for the completion of the cure. FCT shall respond
within thirty (30) days of receiving the request, and approval of the request shall not be
unreasonably withheld. It is FCT's position that all curing activities shall be completed within one
hundred twenty (120) days of the Recipient's notification of the violation. If the Recipient can
demonstrate extenuating circumstances that justify a greater extension of time to complete the
activities, FCT will consider the request. If the Recipient fails to correct the violation within either
(a) the initial thirty (30) days or (b) the time frame approved by FCT pursuant to the Recipient's
request, fee simple title to all interest in the Project Site shall be conveyed to the Trustees. FCT
shall treat such property in accordance with Section 380.508(4), F.S.
XII. GENERAL OBLIGATIONS OF THE RECIPIENT AS A CONDITION OF
PROJECT FUNDING
1. The interest acquired by the Recipient in the Project Site shall not serve as security
for any debt of the Recipient.
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FCT Project No. 16-006-UA 17
2. If the existence of the Recipient terminates for any reason, title to the Project Site
shall be conveyed to the Trustees.
3. FCT staff or its duly authorized representatives shall have the right at any time to
inspect the Project Site and the operations of the Recipient at the Project Site.
XIII. OBLIGATIONS OF THE RECIPIENT RELATING TO THE USE OF STATE
FUNDS
1. FCT is authorized by Section 380.510, F.S. to impose conditions for funding on the
Recipient in order to ensure that the Project complies with the requirements under law.
2. The Recipient agrees and acknowledges that the below listed transactions, events,
and circumstances, collectively referred to as the "disallowable activities," may be disallowed on
the Project Site as they may have negative legal and tax consequences under Florida law and
federal income tax law. The Recipient further agrees and acknowledges that these disallowable
activities may be allowed on a temporary basis with FCT written approval up to a certain extent
based on guidelines or tests outlined in the Federal Private Activity regulations of the Internal
Revenue Service:
a. Any sale or lease of any interest in the Project Site to a non-governmental
person or organization.
b. The operation of any concession on the Project Site by a non-governmental
person or organization.
Any sales contract or option to buy or sell things attached to the Project Site
to be severed from the Project Site with a non-governmental person or
organization.
d. Any use of the Project Site by a non-governmental person other than in such
person's capacity as a member of the public.
e. A management contract for the Project Site with a non-governmental person
or organization.
f. Other activity that may be specified from time to time in writing by FCT to
the Recipient.
9.Any activities that violate the Federal Private Activity regulations of the
Internal Revenue Service.
3. If the Project Site, after its acquisition by the Recipient and/or the Trustees, is to
remain subject to any of the disallowable activities, the Recipient shall provide notice to FCT,
as provided for in paragraph V.I., at least sixty (60) calendar days in advance of any such
DEP Agreement No. UA010 Page 12 of 20
FCT Project No. 16-006-UA17
transactions, events, or circumstances, and shall provide to FCT such information as FCT
reasonably requests to allow FCT to evaluate whether the activity would cause adverse tax
consequences and should therefore be limited or eliminated.
4. In the event that FCT determines at any time that the Recipient is engaging, or
allowing others to engage, in disallowable activities on the Project Site, the Recipient shall
immediately cease the disallowable activities upon receipt of written notice from FCT. In addition
to all other rights and remedies at law or in equity, FCT shall have the right to seek temporary and
permanent injunctions against the Recipient for any disallowable activities on the Project Site.
DELEGATIONS AND CONTRACTUAL ARRANGEMENTS BETWEEN THE RECIPIENT
AND OTHER GOVERNMENTAL BODIES, NONPROFIT ENTITIES, OR NON-
GOVERNMENTAL PERSONS FOR USE. OR MANAGEMENT OF THE PROJECT SITE IN
NO WAY RELIEVES THE RECIPIENT OF THE RESPONSIBILITY TO ENSURE THAT THE
CONDITIONS IMPOSED ON THE PROJECT SITE ARE FULLY COMPLIED WITH BY THE,
CONTRACTING PARTY.
XIV. RECORDKEEPING; AUDIT REQUIREMENTS
1. The Recipient shall maintain books, records, and documents directly pertinent to
performance under this Agreement in accordance with United States Generally Accepted
Accounting Principles (U.S. G.A.A.P.). The Department, the State or their authorized
representatives shall have access to such records for audit purposes during the term of this
Agreement and for five (5) years following the completion date or termination of the Agreement.
In the event any work is subcontracted, the Recipient shall require each subcontractor to maintain
and allow access to such records for audit purposes.
The Recipient understands its duty, pursuant to Section 20.055(5), F.S., to
cooperate with the Department's Inspector General in any investigation,
audit, inspection, review, or hearing. The Recipient will comply with this
duty and ensure that any subcontracts issued under this Grant impose this
written requirement on its subcontractors.
b. In addition to the requirements of the preceding paragraph, the Recipient
shall comply with the applicable provisions contained in Attachment B,
Special Audit Requirements. Exhibit 1 to Attachment B summarizes the
funding sources supporting the Agreement for purposes of assisting the
Recipient in complying with the requirements of Attachment B. A revised
copy of Exhibit I must be provided to the Recipient for each amendment
that authorizes a funding increase or decrease. If the Recipient fails to
receive a revised copy of Exhibit 1, the Recipient shall notify the key
contact with FCT to request a copy of the updated information.
The Recipient is hereby advised that the Federal and/or Florida Single Audit
Act Requirements may apply to lower tier transactions resulting from this
Agreement. The Recipient shall consider the type of financial assistance
DEP Agreement No. UA010 Page 13 of 20
FCT Project No. 16-006-UA17
(federal and/or state) identified in Attachment B, Exhibit 1 when making
this determination. For federal financial assistance, the Recipient shall
utilize the guidance provided under 2 CFR § 200.330 for determining
whether the relationship represents that of a subrecipient or vendor. For
state financial assistance, the Recipient shall utilize the form entitled
-Checklist for Nonstate Organizations Recipient/Subrecipient vs. Vendor
Determination" (form number DFS-A2-NS) that can be found under the
"Links/Forms" section appearing at the following website:
his://aoas.fldfs.com/fsaa
The Recipient should confer with its chief financial officer, audit director,
or contact the Department for assistance with questions pertaining to the
applicability of these requirements.
XV. DEFAULT; REMEDIES; TERMINATION
1. If the necessary funds are not available to fund this Agreement because of action
by the Florida Legislature or the Office of the State Chief Financial Officer, or if
any Defaults occur, as described below, all obligations on the part of FCT to make
any further payment of funds hereunder shall terminate and FCT may exercise any
of the remedies set forth herein. If FCT makes any payments or parts of payments
after an Event of Default, such payment will not waive FCT's right to exercise such
remedies, and will not obligate FCT to make any further payments.
2. The following constitute a Default:
If FCT finds that any warranty or representation made by the Recipient in
this Agreement, any previous agreement with FCT, or in any document
provided to FCT is false or misleading in any respect.
b. If the Recipient fails to perform any of the terms or covenants contained in
this Agreement or any previous agreement with FCT and has not cured such
failure in timely fashion, or is unable or unwilling to meet its obligations
hereunder; or
If any material adverse change in the Recipient's financial condition occurs
during the term of this Agreement and the Recipient fails to cure the
material adverse change within thirty (30) days from the date written notice
is sent to the Recipient by FCT; or
d. If any reports or documents required by this Agreement have not been
timely submitted to FCT or have been submitted with incorrect, incomplete,
or insufficient information; or
If the Recipient fails to perform any of its obligations under this Agreement
in a timely fashion; or
DEP Agreement No. UAO10 Page 14 of 20
FCT Project No. 16-006-UA 17
If the Recipient fails to comply with Project deadlines set forth in the
approved Management Plan; or
g.If the Recipient fails to keep the Project Site open to the public.
3. Upon the happening of a Default, FCT may, after giving thirty (30) calendar days'
notice, exercise any one or more of the following remedies, either concurrently or consecutively.
The pursuit of any one of the following remedies shall not preclude FCT from pursuing any other
remedies contained herein or otherwise provided at law or in equity:
Terminate this Agreement, provided the Recipient is given at least thirty
(30) calendar days' prior written notice of such termination. The notice
shall be effective upon the date of the letter. Notification shall be given
pursuant to Section V.
b. Commence an appropriate legal or equitable action to enforce performance
of this Agreement.
Withhold or suspend payment of all or any part of the FCT Award.
d. Exercise any corrective or remedial actions, including, but not limited to,
requesting additional information from the Recipient to determine the
reasons for or the extent of non-compliance or lack of performance or
issuing a written warning to advise that more serious measures may be taken
if the situation is not corrected.
e. Exercise any other rights or remedies that are otherwise available under law,
including, those described in paragraph IX.3.
4. FCT may terminate this Agreement for cause upon written notice to the Recipient.
Cause shall include, but is not limited to: default; fraud; lack of compliance with applicable rules,
laws, and regulations; failure to perform in a timely manner; failure to make significant progress
toward Project Plan and Management Plan approval; and refusal by the Recipient to permit public
access to any document, paper, letter, or other material subject to disclosure under Chapter 119,
F.S., as amended.
5. FCT may terminate this Agreement if it determines, in its sole discretion, that the
continuation ofthe Agreement would not produce beneficial results commensurate with the further
expenditure of funds.
6. The Recipient may request termination of this Agreement before its Expiration Date
by a written request fully describing the circumstances that compel the Recipient to terminate the
Project. A request for termination shall be provided to FCT in a manner described in paragraph
V. 1.
DEP Agreement No. UA010 Page 15 of 20
FCT Project No. 16-006-UA 17
XVL PUBLIC RECORDS ACCESS:
1. Recipient shall comply with Florida Public Records Law under Chapter 119, F.S.
Records made or received in conjunction with this Agreement are public records
under Florida law, as defined in Subsection 119.011(12), F.S. Recipient shall keep
and maintain public records required by the Department to perform the services
under this Agreement.
2. This Agreement may be unilaterally canceled by the Department for refusal by the
Recipient to either provide to the Department upon request, or to allow inspection
and copying of all public records made or received by the Recipient in conjunction
with this Agreement and subject to disclosure under Chapter 119, F.S., and Article
1, Section 24(a), Florida Constitution.
3. If Recipient meets the definition of "Contractor" found in Paragraph
119.0701(1)(a), F.S.; [i.e., an individual, partnership, corporation, or business
entity that enters into a contract for services with a public agency and is acting on
behalf of the public agency], then the following requirements apply:
Pursuant to Section 119.0701, F.S., a request to inspect or copy public
records relating to this Agreement for services must be made directly to the
Department. If the Department does not possess the requested records, the
Department shall immediately notify the Recipient of the request, and the
Recipient must provide the records to the Department or allow the records
to be inspected or copied within a reasonable time. If Recipient fails to
provide the public records to the Department within a reasonable time, the
Recipient may be subject to penalties under Section 119.10, F.S.
b. Upon request from the Department's custodian of public records, Recipient
shall provide the Department with a copy of the requested records or allow
the records to be inspected or copied within a reasonable time at a cost that
does not exceed the cost provided in Chapter 119, F.S., or as otherwise
provided by law.
C. Recipient shall identify and ensure that all public records that are exempt or
confidential and exempt from public records disclosure requirements are
not disclosed except as authorized by law for the duration of the Agreement
term and following completion of the Agreement if the Recipient does not
transfer the records to the Department.
d. Upon completion of the Agreement, Recipient shall transfer, at no cost to
Department, all public records in possession of Recipient or keep and
maintain public records required by the Department to perform the services
under this Agreement. If the Recipient transfers all public records to the
Department upon completion of the Agreement, the Recipient shall destroy
any duplicate public records that are exempt or confidential and exempt
from public disclosure requirements. If the Recipient keeps and maintains
DEP Agreement No. UA010 Page 16 of 20
FCT Project No. 16-006-UA17
public records upon completion of the Agreement, the Recipient shall meet
all applicable requirements for retaining public records. All records that are
stored electronically must be provided to the Department, upon request
from the Department's custodian of public records, in a format that is
accessible by and compatible with the information technology systems of
the Department.
4. IF THE RECIPIENT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
RECIPIENT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS AGREEMENT, CONTACT THE DEPARTMENT'S CUSTODIAN OF
PUBLIC RECORDS by telephone at (850) 245-2118, by email at
ombudsman ,3,dep.state. fl.us. or at the mailing address below:
Department of Environmental Protection
ATTN: Office of Ombudsman and Public Services
Public Records Request
3900 Commonwealth Blvd, Mail Slot 49
Tallahassee, FL 32399
XVII. LEGAL AUTHORIZATION
The Recipient certifies with respect to this Agreement that it possesses the legal authority
to receive funds to be provided under this Agreement and that, if applicable, its governing body
has authorized, by resolution or otherwise, the execution and acceptance of this Agreement. The
Recipient also certifies that the undersigned possesses the authority to legally execute and bind the
Recipient to the terms of this Agreement.
XVIII. STANDARD CONDITIONS
I . This Agreement shall be construed under the laws of the State of Florida, and venue
for any actions arising out of this Agreement shall lie in Leon County. if any provision hereof is
in conflict with any applicable statute or rule, or is otherwise unenforceable, then such provision
shall be deemed null and void to the extent of such conflict and shall be severable, but shalt not
invalidate any other provision of this Agreement.
2. The Recipient agrees to comply with the Americans With Disabilities Act (Public
Law 101-336, 42 U.S.C. Section 12101 et seq.), if applicable, which prohibits discrimination by
public and private entities on the basis of disability in the areas of employment, public
accommodations, transportation, State and local government services, and in telecommunications.
3. A person or affiliate who has been placed on the convicted vendor list following a
conviction for a public entity crime or on the discriminatory vendor list may not submit a bid on a
contract to provide any goods or services to a public entity. may not submit a bid on a contract
with a public entity for the construction or repair of a public building or public work, may not
submit lease bids on leases of real property to a public entity, may not be awarded or perform work
DEP Agreement No. UA010 Page 17 of 20
FCT Project No. 16-006-UA 17
as a contractor, supplier, subcontractor, or consultant under a contract with a public entity, and
may not transact business with any public entity in excess of Category Two for a period of thirty-
six (36) months from the date of being placed on the convicted vendor list or on the discriminatory
vendor list.
4. In accordance with Section 216.347, F.S., the Recipient is hereby prohibited from
using funds provided by this Agreement for the purpose of lobbying the Legislature, the judicial
branch, or a state agency. Further, in accordance with Section 11.062, F.S., no state funds,
exclusive of salaries, travel expenses, and per diem, appropriated to, or otherwise available for use
by, any executive, judicial, or quasi-judicial department shall be used by any state employee or
other person for lobbying purposes.
5. The employment of unauthorized aliens by any recipient is considered a violation
of Section 274A(e) of the Immigration and Nationality Act. If the Recipient knowingly employs
unauthorized aliens, such violation shall be cause for unilateral cancellation of this Agreement.
The Recipient shall be responsible for including this provision in all subcontracts with private
organizations issued as a result of this Agreement.
6. The Recipient shall comply with all applicable federal, state, and local rules and
regulations in providing services to the Department under this Agreement. The Recipient
acknowledges that this requirement includes, but is not limited to, compliance with all applicable
federal, state, and local health and safety rules and regulations. The Recipient further agrees to
include this provision in all subcontracts issued pursuant to this Agreement.
7. The Recipient shall save and hold harmless and indemnify the State of Florida and
the Department against any and all liability, claims, judgments, or costs of whatsoever kind and
nature for injury to, or death of any person or persons and for the loss of damage to any property
resulting from the use, service, operation or performance of work under the terms of this
Agreement, resulting from the negligent acts of the Recipient, their subcontractor, or any of the
employees, agents, or representatives of the Recipient or subcontractor to the extent allowed by
law.
8. To the extent required by law, the Recipient will be self-insured against, or will
secure and maintain during the life of this Agreement, Workers' Compensation Insurance for all
of its employees connected with the work of this Project and, in case any work is subcontracted,
the Recipient shall require the subcontractor similarly to provide Workers' Compensation
Insurance for all of the latter's employees unless such employees are covered by the protection
afforded by the Recipient. Such self-insurance program or insurance coverage shall comply fully
with the Florida Workers' Compensation law. In case any class of employees engaged in
hazardous work under this Agreement is not protected under Workers' Compensation statutes, the
Recipient shall provide, and cause each subcontractor to provide, adequate insurance satisfactory
to the Department, for the protection of his employees not otherwise protected.
a. Recipient's chief financial officer ("CFO") must provide self-insurance
documentation to FCT prior to execution of this Agreement and upon any
subsequent changes relating to the terms or insurance carrier.
DEP Agreement No. UA010 Page 18 of 20
FCT Project No. 16-006-UA17
9. The Recipient, as an independent contractor and not an agent, representative, or
employee of the Department, agrees to carry adequate liability and other appropriate forms of
insurance. The Department shall have no liability except as specifically provided in this
Agreement.
10. This Agreement may be executed in two or more counterparts, each of which
together shall be deemed an original, but all of which together shall constitute one and the same
instrument. In the event that any signature is delivered by facsimile transmission or by e-mail
delivery of a pdf format data file, such signature shall create a valid and binding obligation of the
Party executing (or on whose behalf such signature is executed) with the same force and effect as
if such facsimile or pdf signature page were an original.
11. This Agreement embodies the entire agreement between the Parties. Any
alterations, variations, changes, modifications, or waivers of provisions of this Agreement shall
only be valid when they have been reduced to writing, duly signed by each of the Parties hereto,
and attached to the original of this Agreement, unless otherwise provided herein.
DEP Agreement No. UA010 Page 19 of 20
FCT Project No. 16-006-UA17
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement.
RECIPIENT: VILLAGE OF KEY BISCAYNE FLORIDA COMMUNITIES TRUST,
a Florida local government STATE OF FLORIDA, DEPARTMENT OF
ENVIRONMENTAL PROTECTION
By:
Print Name: U -vi-(-A- A' CA - -A-
Date: Date: Q
Approved as to Form nd Legality: Approved as to Form and Lega
By:
I I _r(Print Name:
Date: 1\
w Print Name: Z-0 +S !'ei 6'2~ r
Date:
List of attachments/exhibits included as part of this Agreement:
Specify Letter/
Type Number Description (include number of pages)
Attachment A FCT Project Reconciliation Statement (2 pages)
Attachment B Special Audit Requirements (5 Pages)
DEP Agreement No. UA010 Page 20 of 20
FCT Project No. 16-006-U A 17