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HomeMy WebLinkAbout2009 - Working WaterfrontMay 30, 2013 Al Minner, City Manager City of Sebastian 1225 Main Street Sebastian, Florida 32958 FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION MARJORY STONEMAN DOUGLAS BUILDING 3900 COMMONWEALTH BOULEVARD TALLAHASSEE, FLORIDA 32399 -3000 Subject: Modification to the Management Plan Sebastian Working Waterfront Collaborative FCT project number: 08- 003 -WW1 Dear Mr. Minner: RICK SCOTT GOVERNOR HERSCHEL T. VINYARD JR. SECRETARY Thank you for submitting your revisions to the management plan to Florida Communities Trust (FCT). Florida Communities Trust staff reviewed the proposed modification to the management plan for consistency with the original application, the Declaration of Restrictive Covenants and the approved management plan. We find the proposed changes to pages 5 through 7, 11, and 16 through 19, 22, 23, 24, 25 and 27 along with the revised priority schedule to be consistent with the approved project. If you have any questions, please call Jerry Taber (850) 245 -2683 or email at Ly.tabergdep. state. fl.us. Sincerely, Jerry Taber, Planner IV Florida Communities Trust JT i n vi a. dep. state. /1. us FCT Contract Number % C1 EZ- 08- F8- Al -�D3 FLORIDA COMMUNITIES TRUST WWI Award Number 08- 003 -WWI SEBASTIAN WORKING WATERFRONT COLLABORATIVE ADDENDUM I TO GRANT CONTRACT THIS ADDENDUM I is entered into by and between the FLORIDA COMMUNITIES TRUST (FCT), a nonregulatory agency within the State of Florida Department of Community Affairs, and the CITY OF SEBASTIAN, a political subdivision of the State of Florida (Recipient), this Ic/ day of M , 2010. NOW THEREFORE, FCT and the Recipient mutually agree as follows: WHEREAS, the parties hereto entered into a Grant Contract which sets forth the conditions of conceptual approval that must be satisfied by Recipient prior to the receipt of the FCT Florida Forever award and the restrictions that are imposed on the Project Site subsequent to its acquisition with the FCT Florida Forever award; WHEREAS, the initial term of the Grant Contract expires April 15, 2010; WHEREAS, the Recipient in accordance Section 2 of the Grant Contract has timely submitted to FCT a written request for extension of the April 15, 2010 deadline; WHEREAS, Section 2 of the Grant Contract states that the Grant Contract may be amended at any time and any modification must be set forth in a written instrument and agreed to by both the Recipient and FCT; WHEREAS, the parties hereto desire to extend the term of the Grant Contract; NOW THEREFORE, FCT and the RECIPIENT mutually agree as follows: 1. Notwithstanding the language of Section I of the Grant Contract the parties hereby agree to revive it nunc pro tune as though it had not lapsed in accordance with paragraph 1. 2. In every respect, this amendment is to be construed and applied as though the parties had both signed it before April 15, 2010. 08-003-WWI April 15, 2010 GCAMD.1 3. The Grant Contract by and between FCT and the Recipient is hereby extended until October 15, 2010. This Addendum I and the Grant Contract embody the entire agreement between the parties. All other terms and conditions not specifically referenced in this agreement remain the same and unchanged. IN WITNESS WHEREOF, the parties hereto have duly executed this Addendum I. CITY F BASTIAN FLORIDA COMMUNITIES TRUST B By: Kz� Al M' er Ken Reecy City Manage n Community Program Manager Date: Date: f Approved as to Form and Legality: By: Robert A. Ginsburg 08-003-WWI April 15, 2010 GCAMD.1 2 Approved Wto Form and Legality: By: Kristen L. Coons, Trust Counsel FCT Contract Number 0? -CT- 61- 08 ' r-8-F11 -WbJ3 FLORIDA COMMUNITIES TRUST 08-003-WW1 SEBASTIAN WORKING WATERFRONT COLLABORATIVE CSFA # 52.013 STAN MAYFIELD WORKING WATERFRONT GRANT CONTRACT THIS AGREEMENT is entered into by and between the FLORIDA COMMUNITIES TRUST ( "FCT "), a non - regulatory agency within the State of Florida Department of Community Affairs, and the CITY OF SEBASTIAN, a political subdivision of the State of Florida ( "Recipient'). THIS AGREEMENT IS ENTERED INTO BASED ON THE FOLLOWING FACTS: WHEREAS, the intent of this Agreement is to impose terms and conditions on the use of the Florida Forever Funds, hereinafter described, and the lands acquired with such proceeds ( "Project Site "), that are necessary to ensure compliance with applicable Florida law and federal income tax law and to otherwise implement the provisions of Sections 259.105, 259.1051 and Chapter 380, Part III, Florida Statutes; WHEREAS, Chapter 380, Part III, Fla. Stat., the Florida Communities Trust Act, creates a non - regulatory agency within the Department of Community Affairs ( "Department') which will assist local governments in bringing into compliance and implementing the conservation, recreation and open space, and coastal elements of their comprehensive plans or in conserving natural resources and resolving land use conflicts 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, FCT is funded through either Section 259.105(3)(c), Fla. Stat. of the Florida Forever Act, which provides for the distribution of two point five percent (2.5 %), less certain reductions, of the net Florida Forever Revenue Bond proceeds to the Department, or any other revenue source designated by the Florida Legislature, to provide land acquisition grants to local governments and nonprofit working waterfront organizations for the acquisition of working waterfronts; WHEREAS, the Florida Forever funds may be issued as tax - exempt bonds, meaning the interest on the bonds is excluded from the gross income of bondholders for federal income tax purposes; WHEREAS, Rule 9K -9, Florida Administrative Code ( "F.A.C. ") sets forth the procedures for the evaluation and selection of lands proposed for acquisition and Rule 9K -10, F.A.C. sets forth the acquisition procedures; 08- 003 -WW1 April 15; 2009 SMWW - GC -1- WHEREAS, on January 29, 2009, the FCT Governing Board evaluated and scored the applications to develop a ranking list of projects to present to the Board of Trustees of Internal Improvement Trust Fund; WHEREAS, on April 13, 2009, the Board of Trustees of Internal Improvement Trust Fund selected and approved the projects which will receive funding; WHEREAS, the Recipient's project, described in an application submitted for evaluation, was selected for funding in accordance with Rule 9K -9, F.A.C., and by executing this Agreement the Recipient reaffirms the representations made in its application; WHEREAS, Rule 9K -9, F.A.C. authorizes FCT to impose conditions for funding on those FCT applicants whose projects are selected for funding; and WHEREAS, the purpose of this Agreement is to set forth the conditions that must be satisfied by the Recipient prior to the disbursement of any FCT Florida Forever funds awarded, as well as the restrictions that are imposed on the Project Site subsequent to its acquisition. Since the entire Project Site has not yet been negotiated for acquisition, some elements of the project are not yet known such as the purchase price, other project costs, and the terms upon which an owner will voluntarily convey the property. NOW THEREFORE, FCT and the Recipient mutually agree as follows: I. PERIOD OF AGREEMENT 1. This Agreement shall begin upon the Recipient's project being selected for funding and shall end April 15, 2010 ( "Expiration Date "), unless extended as set forth below or unless terminated earlier in accordance with the provisions of Article XIII of this Agreement. 2. FCT may extend this Agreement beyond the Expiration Date if FCT determines that significant progress is being made toward the acquisition of the Project Site or that extenuating circumstances warrant an extension of time. If FCT does not grant an extension the Recipient's award shall be rescinded and this Agreement shall terminate. II. MODIFICATION OF AGREEMENT 1. Either party may request modification of the provisions of this Agreement at any time. Changes which are mutually agreed upon shall be valid only when reduced to writing and duly signed by each of the parties hereto. Such amendments shall be incorporated into this Agreement. III. DEADLINES 1. At least two original copies of this Agreement shall be executed by the Recipient and returned to the FCT office at 2555 Shumard Oak Boulevard, Tallahassee, FL 32399 -2100, as soon as possible and before May 15, 2009. If the Recipient requires more than one original document, the Recipient shall photocopy the number of additional copies needed and then execute each as an 08- 003 -WWI April 15, 2009 SMWW - GC -2- original document. Upon receipt of the signed Agreements, FCT shall execute the Agreements, retain one original copy and return all other copies that have been executed to the Recipient. 2. The Recipient and its representatives shall know of and adhere to all project deadlines and devise a method of monitoring the project. Deadlines stated in this Agreement, as well as deadlines associated with any FCT activity relating to the project, shall be strictly enforced. Failure to adhere to deadlines may result in delays in the project, allocation of time or resources to other recipients that respond timely or termination of this Agreement by FCT. 3. The Recipient shall submit the documentation required by this Agreement to FCT as soon as possible so that the Project Site may be acquired in an expeditious manner. 4. No later than May 15, 2009, the Recipient shall deliver to FCT a written statement from the Project Site property owner(s) evidencing that the owner(s) is willing to entertain an offer from the Recipient and FCT, if not previously provided in the Application. No acquisition activity shall be commenced prior to FCT receipt of this statement. 6. No later than May 15, 2009, the Recipient shall deliver to FCT the executed Confidentiality Agreement provided to the Recipient by FCT, pursuant to Rule 9K- 8.008(3), F.A.C. No acquisition activity shall be commenced prior to FCT receipt of the executed Confidentiality Agreement. IV. FUNDING PROVISIONS 1. The FCT Florida Forever award granted to the Recipient ( "FCT Award ") will in no event exceed the lesser of Percent (90 %) of the final Project Costs, as defined in Rule 9K- 9.002(17), F.A.C:, or Three Million One Hundred Sixty Three Five Hundred Dollars And Zero Cents ($3,163,500.00) unless FCT approves a different amount after determination of the MAPP, which shall be reflected in an addendum to this Agreement. FCT will not participate in Project Costs that exceed the grant award amount. The FCT Award is based on the Recipient's estimate of final Project Costs in its application. When disbursing the FCT Award, FCT shall recognize only those Project Costs consistent with the definition in Rule 9K- 9.002(17), F.A.C. FCT shall participate in the land cost at either the actual purchase price or the MAPP, whichever is less, multiplied by the percent stated in the above paragraph. 2. The FCT Governing Board ranked and the Board of Trustees of the Internal Improvement Trust Fund ( "Trustees ") selected the Recipient's Application for funding in order to acquire the entire Project Site identified in the Application. FCT reserves the right to withdraw or adjust the FCT Award if the acreage that comprises the Project Site is reduced or the project design is changed so that the objectives of the acquisition cannot be achieved. FCT shall consider any request for Project Site boundary modification in accordance with the procedures set forth in Rule 9K- 9.009, F.A.C. 0 &003 -WW1 April 15, 2009 SMWW - GC -3- If the Project Site is comprised of multiple parcels and multiple owners, then FCT reserves the right to withdraw or adjust the FCT Award if the priority parcel(s) or a significant portion of the Project Site cannot be acquired. 3. The FCT Award shall be delivered either in the form of Project Costs prepaid by FCT to vendors or in the form of a State of Florida warrant at the closing of the Project Site, payable to the Seller or the Seller's designated agent authorized by law to receive such payment, provided the Comptroller determines that such disbursement is consistent with good business practices and can be completed in a manner minimizing costs and risks to the State of Florida. If the Project Site is comprised of multiple parcels, FCT shall deliver at the closing of each parcel only the share of the FCT Award that corresponds to the parcel being closed. FCT shall prepare a grant reconciliation statement prior to the closing of the Project Site parcel that evidences the amount of Match provided by the Recipient, if any is required, and the amount of the FCT Award. Funds expended by FCT for Project Costs shall be recognized as part of the FCT Award on the grant reconciliation statement. 4. If a Match is required, it shall be delivered in an approved form as provided in Rule 9K- 9.002(15), F.A.C. If the Project Site is comprised of multiple parcels, the Recipient shall deliver at the closing of each parcel the share of the Match that corresponds to the parcel being closed. Funds expended by the Recipient for Project Costs shall be recognized as part of the Match on the grant reconciliation statement. 5. By executing this Agreement, the Recipient affirms that it is ready, willing and able to provide a Match, if any is required. 6. If the Recipient is the local government having jurisdiction over the Project Site, and an action by the Recipient subsequent to the FCT Governing Board selection meeting results in a governmentally derived higher Project Site land value due to an enhanced highest and best use, FCT acquisition activities shall be terminated unless the Seller agrees that the appraisal(s) will be based on the highest and best use of the Project Site on or before the FCT Governing Board selection meeting. 7. FCT's performance and obligation to financially perform pay under this Agreement is contingent upon an annual appropriation by the Florida Legislature, and is subject to any modification in accordance with Chapter 216, Fla. Stat. or the Florida Constitution. 8. FCT's performance and obligation to financially perform under this Agreement is contingent upon the issuance of Florida Forever Revenue Bonds issued by the State of Florida and of the proceeds of the Florida Forever Revenue Bonds being released to the Department. V. NOTICE AND CONTACT 1. All notices provided under or pursuant to this Agreement shall be in writing and delivered either by hand delivery or first class, certified mail, return receipt requested, to: 08- 003 -wi1V1 April 15, 2009 SMWW - GC -4- Florida Communities Trust 2555 Shumard Oak Boulevard Tallahassee, FL 32399 -2100 2. All contact and correspondence from FCT to the Recipient shall be through the key contact. 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: Rebecca Grohall Title: Growth Management Director Address: 1225 Main Street Sebastian, FL 32958 Phone: (772)388 -8228 Fax: (772)388 -8248 E -mail: rgrohall @cityofsebastian.org 3. The Recipient authorizes the administrator, employee, officer or representative named in this paragraph to execute all documents in connection with this project on behalf of the Recipient, including, but not limited to, the Grant Contract or any addenda thereto, purchase agreement(s) for the property, grant reconciliation statement, closing documents and Declaration of Restrictive Covenants. Name: Al Minuer Title: City Manager Address: 1225 Main Street Sebastian. FL 32958 Phone: (772)388 -8200 Fax: (772)581 -0149 Email: aminner @cityofsebastian.org 5. In the event that different representatives or addresses are designated for either paragraph 2. or 3. above after execution of this Agreement, notice of the changes shall be rendered to FCT as provided in paragraph 1. above. 6. The Recipient hereby notifies FCT that the Recipient's Federal Employer Identification Number(s) is 5 9- 6 0 0 0 4 2 7 08- 003 -WW1 April 15, 2009 SMWW - GC -5 VI. PRE - CLOSING REQUIREMENTS Prior to FCT approval of the signed purchase agreement(s), closing(s) of the real estate transaction(s) to acquire the Project Site and final disbursement of the FCT Award, the Recipient shall submit to FCT: a. Supporting documentation that the conditions imposed as part of this Agreement have been satisfied. b. 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 agency or body. C. A signed statement by the Recipient that all activities under this Agreement comply with all applicable local, state, regional and federal laws and regulations, including zoning ordinances and the applicable adopted and approved comprehensive plan. d. Additional documentation as may be requested by FCT to provide Reasonable Assurance, as set forth in paragraph VIIA. below. 2. FCT shall approve the terms under which the interest in land is acquired pursuant to Section 380.510(3), Fla. Stat. Such approval is deemed given when FCT approves and executes the purchase agreement for acquisition of the Project Site, further described in paragraph VI. 1. a. above. 3. All real property shall be obtained through a Voluntarily- Negotiated Transaction, as defined in Rule 9K- 9.002(42). The use of or threat of condemnation is not considered a Voluntarily- Negotiated Transaction. 4. Any invoices requested, along with proof of payment, shall be submitted to FCT and be in a detail sufficient for a proper audit thereof. 5. Interest in the Project Site shall be titled in the Recipient. 7. The transfer of interest to the Recipient for the Project Site shall not occur until the requirements for the acquisition of lands, as specified in Section 380.507(l 1), Fla. Stat. and Rule Chapter 9K -10, F.A.C., have been fully complied with by the Recipient and FCT and the Recipient has complied with all Purchase Agreement requirements. 8. The deed transferring interest of the Project Site to the Recipient shall set forth the executory interest of the Board of Trustees of the Internal Improvement Trust Fund. VII. MANAGEMENT PLAN; ANNUAL STEWARDSHIP REPORT 1. Prior to the signature of the purchase agreement(s), closing(s) of the real estate transaction(s) and final disbursement of the FCT Award, the Recipient shall submit to FCT and have 08- 003 -WW1 Apri115, 2009 SMWW - GC 01 approved a Management Plan that complies with Rule 9K- 9.010, F.A.C. and addresses the criteria and conditions set forth in Articles VII, VIII, IX, X and XI herein. The Recipient is strongly urged to coordinate with FCT staff in order to ensure that FCT approval of the Management Plan occurs prior to the closing date of the real estate transaction(s) associated with the Project Site and the disbursement of the FCT Award. 2. The Management Plan explains how the Project Site will be managed to further the purposes of the project and meet the terms and conditions of this Agreement. The Management Plan shall include the following: a. An introduction containing the project name, location and other background information relevant to management. b. The stated purpose for acquiring the Project Site as proposed in the Application and a prioritized list of management objectives. C. A detailed description of all proposed uses including existing and proposed physical improvements and the impact on natural resources. d. A scaled site plan drawing showing the Project Site boundary, existing and proposed physical improvements. e. A description of proposed educational displays and programs to be offered, if applicable. f. A schedule for implementing the development and management activities of the Management Plan. g. Cost estimates and funding sources to implement the Management Plan. 3. If the Recipient is not the proposed managing entity, the Management Plan shall include a signed agreement between the Recipient and the managing entity stating the managing entity's willingness to manage the site, the manner in which the site will be managed to further the purpose(s) of the project and the identification of the source of funding for management. In the event that 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 Project 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, F1a.Stat., the Recipient(s) shall be required to provide FCT with Reasonable Assurance, pursuant to Rule 9K- 9.002(19), 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 is a Non- profit Working Waterfront Organization and does not include at least one Local Government partner, 0 &003 -WW1 April 15, 2009 SMWW - GC -7- FCT will require the Recipient to establish a management endowment in an amount sufficient to ensure performance, and provide a guaranty or pledge by the Local Government, the Water Management District in which the project is located, or a managing agency of the Board of Trustees to act as a backup manager to assume responsibility for management of the Project Site in the event the Recipient is unable to continue to manage the Project Site. 5. The Recipient shall, through its agents and employees, prevent the unauthorized use of the Project Site or any use thereofnot in conformity with the Management Plan approved by FCT. 6. All buildings, structures, improvements and signs shall require the prior written approval of FCT as to purpose. Major land alterations shall require the written approval of FCT. The approvals required from FCT shall not be unreasonably withheld upon sufficient demonstration that the proposed structures, buildings, improvements, signs or land alterations will not adversely impact the management of the Project Site. FCT's approval of the Recipient's Management Plan addressing the items mentioned herein shall be considered written approval from FCT. 7. As required by Rule 9K- 9.012, F.A.C., each year after FCT closes on the Project Site, the Recipient shall prepare and submit to FCT an annual stewardship report that documents the progress made on implementing the Management Plan. VIII. SPECIAL MANAGEMENT CONDITIONS In addition to the Management Plan conditions already described in this Agreement, which apply to all sites acquired with FCT funds, the Management Plan shall address the following conditions that are particular to the project site and result from either representations made in the application that received scoring points or observations made by FCT staff during the site visit described in Rule 9K- 9.007, F.A.C.: 1. The future land use and zoning designations of the project site shall be changed to Working Waterfronts or other similar category. 2. A permanent recognition sign, at a minimum size of 3' x 4', shall be maintained at the entrance area of the project site. The sign shall acknowledge that the project site was purchased with funds from the Florida Communities Trust Program and the Recipient. 3. At closing, the existing submerged land lease will be transfer to the Recipient. 4. Prior to closing, the Recipient will provide a letter from the Department of Environmental Protection stating the current land owner is in compliance with Chapters 253, 258, 373 Part IV and 403 Florida Statutes and the submerged land lease for all facilities or structures on the Project Site that are located over state sovereignty submerged land and that applicable fees or wetslip certification forms are current or that the facilities or structures are not subject to a state sovereignty submerged land lease. 08- 003 -WW1 April 15, 2009 SMWW - GC -8- 5. Annually the Recipient will provide a letter from the Department of Environmental Protection stating the Recipient is in compliance with Chapters 253, 258, 373 Part IV and 403 Florida Statutes and the submerged land lease for all facilities or structures on the Project Site that are located over state sovereignty submerged land and that applicable fees or wetslip certification forms are current or that the facilities. 6. One of the existing buildings on the project site will be used as a working waterfront building and the other as an educational site highlighting the cultural and historic heritage of Florida's traditional Working Waterfronts. 7. Permanent structured displays of artifacts and other items shall be provided that provides information about the economic, cultural or historic heritage of Florida's traditional Working Waterfronts 8. Interpretive kiosk or signs shall be provided that educate the public about the economic, cultural, or historic heritage of Florida's traditional Working Waterfronts IX. DECLARATION OF RESTRICTIVE COVENANTS REQUIREMENTS IMPOSED BY CHAPTER 259 AND CHAPTER 380, PART III, FLA. STAT. 1. Each parcel in the Project Site to which the Recipient acquires interest 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, Fla. Stat.; Section 11(e), Article VII of the Florida Constitution; the applicable bond indenture under which the Bonds were issued; and any provision of the Internal Revenue Code or the regulations promulgated thereunder that pertain to tax exempt bonds. The Declaration of.Restrictive Covenants shall contain clauses providing for the conveyance of interest to the Project Site to the Trustees, or a Nonprofit Working Waterfront Organization or government entity, upon failure to comply with any of the covenants and restrictions, as further described in paragraph 3. below. 2. The Declaration of Restrictive Covenants shall also restate the conditions that were placed on the Project Site at the time ofproject selection and initial grant approval. The Declaration of Restrictive Covenants shall be executed by FCT and the Recipient at the time of the closing of the Project Site 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 commence to cure the violation or complete curing activities within thirty (30) days after receipt of notice of the violation. If the curing activities can not be reasonably completed within the specified thirty (30) day time frame, the Recipient shall submit a timely written request to the FCT Program Manager that includes the status of the current activity, the reasons for the delay and a time flame for the completion of the curing 08-003-WW1 April 15, 2009 SMWW - GC -9- . activities. FCT shall submit a written response within thirty (30) days of receipt of the request and approval 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. However, if the Recipient can demonstrate extenuating circumstances exist to justify a greater extension of time to complete the activities, FCT shall give the request due consideration. If the Recipient fails to correct the violation within either (a) the initial thirty (30) day time frame or (b) the time frame approved by FCT pursuant to the Recipient's request, all interest in the Project Site shall be conveyed to the Trustees unless FCT negotiates an agreement with another local government, Nonprofit Working Waterfront Organization, Water Management District in which the project is located, or a managing agency of the Board of Trustees who agrees to accept interest and manage the Project Site. FCT shall treat such property in accordance with Section 380.508(4)(e), Fla. Stat. X. 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. 2. If the existence of the Recipient terminates for any reason, interest to the Project Site shall be conveyed to the Trustees unless FCT negotiates an agreement with another local government, Nonprofit Working Waterfront Organization, Water Management District in which the project is located, or a managing agency of the Board of Trustees who agrees to accept interest and manage the Project Site. 3. Following the acquisition of the Project Site, the Recipient shall ensure that the future land use and zoning designation assigned to the Project Site is for a category dedicated to working waterfronts. If an amendment to the applicable comprehensive plan is required, the amendment shall be proposed at the next comprehensive plan amendment cycle available to the Recipient subsequent to the Project Site's acquisition. 4. 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. 5. The Project Site shall permanently contain one sign recognizing FCT's role in the acquisition of the Project Site. XI. OBLIGATIONS OF THE RECIPIENT RELATING TO THE USE OF BOND PROCEEDS 1. FCT is authorized by Section 380.510, Fla. Stat. to impose conditions for funding on the Recipient in order to ensure that the project complies with the requirements for the use of Florida Forever Bond proceeds including, without limitation, the provisions of the Internal Revenue Code and the regulations promulgated thereunder as the same pertain to tax exempt bonds. 2. The Recipient agrees and acknowledges that the below listed transactions, events, and circumstances may have negative legal and tax consequences under Florida law and federal income 08-003-WWI April 15, 2009 sMww -.GC. -10- tax law. The Recipient further agrees and acknowledges that these disallowable activities may be allowed up to a certain extent based on guidelines or tests outlined in the Federal Private Activity regulations of the Internal Revenue Service: 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 general public; e. 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 disbursement is to be made; f. a management contract for the Project Site with a non - governmental person or organization; or g. such other activity or interest as may be specified from time to time in writing by FCT to the Recipient. 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.1., at least sixty (60) calendar days in advance of any such transactions, events or circumstances, and shall provide to FCT such information as FCT reasonably requests in order to evaluate for approval the legal and tax consequences of such disallowable activities. 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 or cause the cessation of the disallowable activities upon receipt ofwritten 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 WILL IN NO WAY RELIEVE THE RECIPIENT OF THE RESPONSIBILITY TO ENSURE THAT THE CONDITIONS IMPOSED HEREIN ON THE PROJECT SITE AS A RESULT OF UTILIZING 08- 003 -wwl April 15, 2009 SMWW - GC -11- BOND PROCEEDS TO ACQUIRE THE PROJECT SITE ARE FULLY COMPLIED WITH BY THE CONTRACTING PARTY. XII. RECORDKEEPING; AUDIT REQUIREMENTS 1. The Recipient shall maintain financial procedures and support documents, in accordance with generally accepted accounting principles, to account for the receipt and expenditure of funds under this Agreement. These records shall be available at all reasonable times for inspection, review or audit by state personnel, FCT and other personnel duly authorized by FCT. "Reasonable" shall be construed according to the circumstances, but ordinarily shall mean the normal business hours of 8:00 a.m. to 5:00 p.m., local time, Monday through Friday. 2. If the Recipient expends a total amount of State financial assistance equal to or in excess of $500,000 in any fiscal year of such Recipient, the Recipient must have a State single or project - specific audit for such fiscal year in accordance with Section 215.97, Fla. Stat., the applicable rules of the Executive Office of the Governor and the Comptroller and Chapter 10.550 (local government entities) or Chapter 10.650 (nonprofit organizations), Rules of the Auditor General. In determining the State financial assistance expended in its fiscal year, the Recipient shall consider all sources of State financial assistance, including State funds received from FCT, other state agencies and other non -state entities. State financial assistance does not include Federal direct or pass - through awards and resources received by a non -state entity for Federal program matching requirements. The funding for this Agreement was received by FCT as a grant appropriation. In connection with the audit requirements addressed herein, the Recipient shall ensure that the audit complies with the requirements of Section 215.97(7), Fla. Stat. This includes submission of a reporting package as defined by Section 215.97(2)(d), Fla. Stat. and Chapter 10.550 (local government entities) or 10.650 (nonprofit organizations), Rules of the Auditor General. It may be necessary for the Recipient to amend prior fiscal year audits to account for receiving the FCT grant funds because the determining factor of when the expenditure must be accounted for is when the expenditure is made, not the signing of this agreement. Per Department of Financial Services Rule 69I- 5.004(2)(a), Florida Administrative Code, the determination of when State financial assistance is expended should be based on when the activity occurs (the activity pertains to events that require the nonstate entity to comply with contracts or agreements, such as expenditure transactions associated with grants.) Additional prior fiscal year expenditures of State financial assistance should be added to total expenditures of State financial assistance previously reported for the prior fiscal year to determine if the threshold was exceeded. If so, the nonstate entity should take appropriate action to provide for an audit for the prior fiscal year in accordance with the Florida Single Audit Act. 3. If the Recipient expends less than $500,000 in State financial assistance in its fiscal year, an audit conducted in accordance with the provisions of Section 215.97, Fla. Stat. is not required. If the Recipient elects to have an audit conducted in accordance with the provisions of Section 215.97, Fla. Stat., the cost of the audit must be paid from non -State funds (i.e., the cost of such an audit must be paid from Recipient funds not obtained from a State entity). 08-003 -WW1 April 15, 2009 SMWW - GC -12- 4. The annual financial audit report shall include all management letters, the Recipient's response to all findings, including corrective actions to be taken, and a schedule of financial assistance specifically identifying all Agreement and other revenue by sponsoring agency and agreement number. Copies of financial reporting packages required under this Article shall be submitted by or on behalf of the Recipient directly to each of the following: Department of Community Affairs (at each of the following addresses): Office of Audit Services 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 -2100 and Florida Communities Trust 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 -2100 State of Florida Auditor General at the following address: Auditor General's Office Room 401, Claude Pepper Building 111 West Madison Street Tallahassee, Florida 32302 -1450 5. If the audit shows that any portion of the funds disbursed hereunder were not spent in accordance with the conditions of this Agreement, the Recipient shall be held liable for reimbursement to FCT of all funds not spent in accordance with the applicable regulations and Agreement provisions within thirty (30) days after FCT has notified the Recipient of such non- compliance. 6. The Recipient shall retain all financial records, supporting documents, statistical records and any other documents pertinent to this Agreement for a period of five (5) years after the date of submission of the final expenditures report. However, if litigation or an audit has been initiated prior to the expiration of the five -year period, the records shall be retained until the litigation or audit findings have been resolved. 7. The Recipient shall have all audits completed in accordance with Section 215.97, Fla. Stat. performed by an independent certified public accountant ( "IPA ") who shall either be a certified public accountant or a public accountant licensed under Chapter 473, Fla. Stat. The IPA shall state that the audit complied with the applicable provisions noted above. XIII. DEFAULT; REMEDIES; TERMINATION 1. If the necessary funds are not available to fund this Agreement as a result of action by the Florida Legislature or the Office of the Comptroller, or if any of the events below occur ("Events of Default "), all obligations on the part of FCT to make any further payment of funds hereunder shall, if FCT so elects, terminate and FCT may, at its option, exercise any of its remedies set forth 08-003 -WW1 April 15, 2009 sMww - GC -13- herein, but FCT may make any payments or parts of payments after the happening of any Events of Default without thereby waving the right to exercise such remedies, and without becoming liable to make any further payment. The following constitute Events of Default: thereunder; a. If any warranty or representation made by the Recipient in this Agreement, any previous agreement with FCT or in any document provided to FCT shall at any time be false or misleading in any respect, or if the Recipient shall fail to keep, observe or perform any of the terms or covenants contained in this Agreement or any previous agreement with FCT and has not cured such in timely fashion, or is unable or unwilling to meet its obligations b. If any material adverse change shall occur in the financial condition of the Recipient at any time during the term of this Agreement from the financial condition revealed in any reports filed or to be filed with FCT, and the Recipient fails to cure said material adverse change within thirty (30) days from the date written notice is sent to the Recipient by FCT; C. 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 d. If the Recipient fails to perform and complete in timely fashion any of its obligations under this Agreement. 2. Upon the happening of an Event of Default, FCT may, at its option, upon thirty (30) calendar days from the date written notice is sent to the Recipient by FCT and upon the Recipient's failure to timely cure, exercise any one or more of the following remedies, either concurrently or consecutively, and 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: a. Terminate this Agreement, provided the Recipient is given at least thirty (30) days prior written notice of such termination. The notice shall be effective when placed in the United States mail, first class mail, postage prepaid, by registered or certified mail - return receipt requested, to the address set forth in paragraph V.2. herein; b. Commence an appropriate legal or equitable action to enforce performance of this Agreement; 03- 003 -WW1 April 15, 2009 SMWW - GC C. 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 -14- warning to advise that more serious measures may be taken if the situation is not corrected; or e. Exercise any other rights or remedies which may be otherwise available under law, including, but not limited to, those described in paragraph IX.3. 3. FCT may terminate this Agreement for cause upon written notice to the Recipient. Cause shall include, but is not limited to: fraud; lack of compliance with applicable rules, laws and regulations; failure to perform in a timely manner; failure to make significant progress toward the closing(s) of the real estate transaction(s) 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, Fla. Stat., as amended. Appraisals, and any other reports relating to value, offers and counteroffers are not available for public disclosure or inspection and are exempt from the provisions of Section 119.07(1), Fla. Stat. until a Purchase Agreement is executed by the Owner(s) and Recipient and conditionally accepted by FCT, or if no Purchase Agreement is executed, then as provided for in Sections 125.355(1)(a) and 166.045(l)(a), Fla. Stat. 4. FCT may terminate this Agreement when it determines, in its sole discretion, that the continuation of the Agreement would not produce beneficial results commensurate with the further expenditure of fiends by providing the Recipient with thirty (30) calendar days prior written notice. 5. 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.I. XIV. LEGAL AUTHORIZATION 1. 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 with all covenants and assurances contained herein. The Recipient also certifies that the undersigned possesses the authority to legally execute and bind the Recipient to the terms of this Agreement. XV. STANDARD CONDITIONS 1. 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 shall not invalidate any other provision of this Agreement. 2. No waiver by FCT of any right or remedy granted hereunder or failure to insist on strict performance by the Recipient shall affect or extend or act as a waiver of any other right or remedy of FCT hereunder, or affect the subsequent exercise of the same right or remedy by FCT for any further or subsequent default by the Recipient. Any power of approval or disapproval 08- 003 -WW1 April 15, 2009 SMWW - GC -15- granted to FCT under the terms of this Agreement shall survive the terms and life of this Agreement as a whole. 3. 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. 4. 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 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. 5. No funds or other resources received from FCT in connection with this Agreement may be used directly or indirectly to influence legislation or any other official action by the Florida Legislature or any state agency. This Grant Contract embodies the entire agreement between the parties. IN WITNESS WHEREOF, the parties hereto have duly executed this Grant Contract. CITY ASTIAN By: _ _ P nt Al Minner Title- Ci Mang, Date: 2 � 7 Approv t rm ALality-:� By: Print N e: Robert A. Ginsburg ATTEST: 1 Sally A. Mai , MMC - City Clerk 08 -003 -WW1 April 15, 2009 SNWW -GC . 1 -16- FLORIDA =MMLMTIES TRUST By: Ken Reecy Community Pr gram Manager Date: .3 " !9 � Approve as to orm and Legality: By: Kristen L. Coons, Trust Counsel 5 Contract No. R -el- EZ -Og- Fg -Al -kAd$ FCT Project No: 08- 003 -WW1 CONFIDENTIALITY AGREEMENT This is a Confidentiality Agreement ( "Agreement ") pursuant to Rule 9K- 10.005(3), Florida Administrative Code (F.A.C.). Parties to the Confidentiality Agreement: The City of Sebastian ( "Recipient "), a local government of the State of Florida, and the FLORIDA COMMUNITIES TRUST ( "FCT "), a non - regulatory agency within the Department of Community Affairs. Parcels Covered by this Agreement: This Agreement covers all parcels identified as part of the project site in SMWW application 08- 003 -WW1 that was selected for funding and is governed by a Grant Contract for FCT Project Number 08- 003 -WW1 ( "Project Site "). Confidentiality: a) Pursuant to Rule 9K- 10.002(8), F.A.C., the term "Confidential" refers to information that shall not be available for public disclosure or inspection and is exempt from the provisions of Section 119.07, Florida Statutes (F.S.). b) The Recipient and its agents shall maintain the confidentiality of all appraisals, offers, and counteroffers as required by Section 125.355(l)(a), F.S., for counties, or Section 166.045(1)(a), F.S., for municipalities, and Chapter 9K -10, F.A.C. The Recipient may disclose such confidential information only to the individuals listed herein below. c) Requests to add persons to the disclosure list shall be made in writing. Upon the written consent of the FCT Community Program Manager, the Recipient shall execute an Addendum to the Agreement. All confidentiality requirements outlined above shall apply to individuals added to the list. d) The undersigned board members and staff of the Recipient and its agents, if any, agree to maintain the confidentiality of appraisal information, offers and counter- offers concerning FCT Project Number 08- 0003 -WW1, as required by Section 125.355 (1)(a), F.S., for counties or Section 166.045 (1)(A), F.S., for municipalities, Chapter 9K -10, F.A.C., and this Confidentiality Agreement between the Recipient and FCT. 08- 003 -WW1 4/15/2009 e) The undersigned certify that they have no legal or beneficial interest in the Project Site. Date 4/22/2009 4/22/2009 4/22/2009 4/22/2009 4/.22/2009 4/22/2009 4/22/2009 4/22/2009 Recipient Board Member, Staff or Agent Name Mayor Richard H. Gillmor Vice Mayor Jim Hill Council Member Andrea Coy Council Member Dale Simchick Council Member Eugene Wolff Al Minner, City Manager Rebecca Grohall, Growth Mgmt. Dir. Robert Ginsburg, City Attorney Sally.A. Maio, City Clerk Date: �JOq Approv as to form and legality: By: Robert A. Ginsburg Title: City Attorney ATTEST Sally A. Mai , MMC - City Clerk `A 08- 003 -WW1 4/15/2009 Signature FLORIDA COMMUNITIES TRUST By: Ken Reecy Community Program Manager Date: 5,07-01 Approved as to form and legality: By: Kristen L. Coons Title: Trust Counsel Florida Communities hies Trust May 07, 2009 Ms. Rebecca Grohall Growth Management Director 1225 Main Street Sebastian, FL 32958 RE: FCT Project Number: 08-003 -WW1 City of Sebastian Sebastian Working Waterfront Collaborative Dear Ms. Grohall: t A -1 MAY 112009 P?:� Enclosed please find a fully executed original of the Grant Contract and Confidentiality Agreement for the above - referenced Stan Mayfield Working Waterfronts / Florida Communities Trust Project. If you have any questions, please contact me at (850) 922 -1692 (SunCom 292 - 1692). Sincerely, ( � 31_� Jay Sircy Grants Specialist IV j s\ Enclosures DEPARTMENT OF COMMUNITY AFFAIRS • 2555 SHUMARD OAK BOULEVARD • TALLAHASSEE, FL 32399 -2100 850/922 -2207 • SUNCoM 292 -2207 • FAX 850/921 -1747 4 FLORIDA COMMU.NITIFSTRI;ST RFCYCIF_�