HomeMy WebLinkAbout2010 07 28 Lease City & FLS - Repealedi�'�8XI2� 0,1A13 LlA�e-
LEASE BETWEEN THE CITY OF SEBASTIAN AND THE FISHERMAN'S LANDING
SEBASTIAN, INC.
A LEASE made this 28th day of July, 2010, between the CITY OF SEBASTIAN, FLORIDA, a
municipal corporation, having its principal office at 1225 Main Street, Sebastian, Florida 32958
herein after referred to as the "LESSOR" and FISHERMAN'S LANDING SEBASTIAN, INC., a
non - profit corporation organized and existing under the laws of the State of Florida whose
address is PO Box 782038, Sebastian, Florida 32978 -2038 hereinafter referred to as the
"LESSEE ".
WITNESSETH:
WHEREAS, the Sebastian City Council is authorized to lease real property owned by the City to
not - for - profit organizations formed for the purposes of promoting community interest and welfare;
and,
WHEREAS, LESSEE is a Florida not - for - profit organization formed for the purpose of promoting
community interest and welfare including the revitalization of Sebastian's Working Waterfront,
and whose Members are commercial fishermen (a copy of Lessee's corporate documentation is
attached as Exhibit "A "); and,
WHEREAS, LESSOR owns real property hereinafter described below which is upland to
submerged lands lease #310006484; and,
WHEREAS, LESSEE has applied to LESSOR for a lease of the upland real estate and use of the
submerged lands, collectively referred to as the "Leased Premises ", for the purpose of
commercial fishing docks, off - loading facility and weigh station for use by the members of the
LESSEE and visitation by the general public, in designated areas; and,
WHEREAS, LESSOR has determined that the revitalization and preservation of the Sebastian
Working Waterfront promotes community interest and welfare; and,
WHEREAS, LESSOR has found that the facilities to be leased to LESSEE are required for the
proposed use and LESSEE agrees to maintain the same and make certain improvements; and,
WHEREAS, the property will be subject to a Declaration of Restrictive Covenants and a
management plan pursuant to the requirements of the Stan Mayfield Working Waterfront Grant;
and,
WHEREAS, LESSOR desires to lease such property to LESSEE for the purpose described
herein.
NOW THEREFORE, in consideration of the foregoing and in further consideration of the mutual
covenants contained herein the parties agree as follows:
1. PREMISES. LESSOR hereby leases unto LESSEE the Leased Premises located at 1540
Indian River Drive and 1532 Indian River Drive, legally described in Exhibit "B" attached hereto
and incorporated herein. A location map is attached hereto as Exhibit "C ". Parking spaces are
shown on Exhibit "D ".
4.__
2. PURPOSE. The LESSEE shall use the Leased Premises solely and exclusively for providing
its members a commercial fishing dock, fish off - loading fish packing facility, aquaculture,
fundraising, special events and other uses that may support the commercial fishing industry as
described herein.
3. SUBMERGED LAND LEASE. The parties acknowledge the existence of Sovereign
Submerged Land Lease #310006484. The parties further understand that this lease may be
amended and modified from time to time. LESSOR shall be responsible to acquire, keep and
maintain, from the appropriate governmental agency a lease which permits the operations of a
working waterfront as enumerated herein. LESSEE shall pay all initial, annual and renewal fees
associated with such permit.
LESSEE acknowledges the restrictions, requirements and regulations contained in the
Submerged Land Lease #310006484 and agrees to use the Leased Premises in accordance with
such lease provisions and directives provided by the Temporary Use Agreement.
Any default, breach or noncompliance issues shall be the sole responsibility of the LESSEE.
4. TERM AND OPTION TO RENEW. LESSOR leases to the LESSEE the above premises for a
term of ten (10) years, commencing on August 1, 2010 and terminating on July 31, 2020, with an
option for an additional ten years if LESSEE exercises this option in writing, within one hundred
and eighty days (180) of the expiration date of this Lease and upon the condition that LESSEE is
not in breach of this Lease at the time of exercise. LESSOR and LESSEE shall negotiate in good
faith to develop terms for a new lease. If the parties cannot agree upon the terms of a new lease
for the option period, this Lease shall expire in conformity with its terms.
5. RENT. LESSEE shall pay a base rent of $1,000 per month or two cents ($0.02) per pound of
fish and $2.50 per bushel of shellfish product transferred from the docks located at 1532 Indian
River Drive through the facility per month, which ever is greater, to the LESSOR. Payment shall
be made on the first day of each month for the preceding month.
6. RENT CREDITS. As LESSEE makes improvements specified in Sections 8.A and 8.13 of this
Agreement, all costs for such improvements will be credited against the rent, once these costs
have been approved by the LESSOR. Should this Lease be extended per the terms in Paragraph
4, any accrued rent credits that the lessee may have shall be applied to rent in the new Lease
term.
7. POTENTIAL REVENUE. It is anticipated that the Premises may generate revenue via the
rental of commercial boat slips; upland subleases, the operation of aquaculture equipment, visitor
general admission, and lease space to businesses supporting the commercial fishing industry.
LESSEE shall establish, impose control and collect all such revenues. LESSEE shall use such
revenues in order to finance capital improvements, pay general working waterfront operation
expenses and to advance the LESSEE mission, as enumerated in its By -Laws and Articles of
Incorporation.
8. IMPROVEMENTS. The Leased Premises are accepted by the LESSEE "as is ". The LESSEE
agrees as follows:
A. LESSEE agrees at its sole cost and expense to design, construct and maintain the
following improvements at 1532 Indian River Drive:
(1) Restoration and creation of a new fish house. The fish house shall serve as the
primary weighing and fish processing station. The fish house will also provide a
visitor's station enabling a safe and convenient location for the general public to
view and be educated about the commercial fishing industry in Sebastian.
(2) Install and maintain new aquaculture equipment including raceways and
upwellers as necessary for the operation of the working waterfront.
(3) Install and maintain new docks and boat slips as may be determined by the
LESSEE as necessary for the operation of the working waterfront.
(4) Clear all debris; install and maintain new landscaping along the uplands portion
of the Premises.
(5) Install a north /south "public access" boardwalk along the shoreline in order to link
the waterfront properties to the immediate north and south of the premises.
Lessee shall make improvements at their discretion as scheduling and funding permits.
B. As an Economic Development component of the Stan Mayfield Working Waterfront
Grant, LESSEE agrees to solicit and oversee business operations that will be located at
1540 Indian River Drive.
LESSOR acknowledges the existing conditions at 1540 Indian River Drive and will make
the following capital improvements in order to entice ancillary waterfront business:
(1) Repair Air Conditioner;
(2) Termite and Pest Remediation;
(3) Roof Repair;
(4) Remove Existing Kitchen Equipment;
(5) Interior and Exterior Painting (wall remediation);
(6) Install Landscape Materials;
(7) Electrical; and,
(8) Exterior Restroom Entry.
Enterprises that may be located in 1540 Indian River Drive will support commercial
fishing operations and may include:
(1) ice Depot;
(2) Fish Market, with limited seating for food and beverage service;
(3) Hosting of community events and demonstrations educating and celebrating the
contributions, history and heritage of Sebastian's commercial fishing industry;
(4) Smoke House and Seafood Operations; and,
(5) Other ancillary business /activities as approved by the LESSOR and the Florida
Communities Trust.
C. LESSEE shall obtain the written approval of LESSOR prior to making any improvements,
alterations, installations, additions to existing structures or new structures to be placed or
constructed on the Leased Premises. At the end of the term of this Lease, LESSEE shall
deliver the premises to LESSOR in good repair and condition, reasonable wear and tear
excepted. All installations, alterations, additions and improvements on the Premises shall
become the property of LESSOR, and on termination of the Lease Term shall be
surrendered with the Leased Premises in good condition, except any privately owned or
leased equipment.
D. All plans and specification for such renovations, improvements or construction shall be
submitted in writing to the LESSOR for approval which shall not be unreasonable
withheld or delayed.
E. Unless otherwise expressly prohibited herein, it shall be LESSEE'S sole responsibility to
obtain all necessary governmental approvals for the Leased Premises, including, but not
limited to all necessary LESSOR development approvals and permits as well as any
other agency approvals and permits. Nothing herein shall be deemed to waive or imply
waiver of any City of Sebastian governmental regulation or fee applicable to the review,
renovation or development of the Leased Premises by LESSEE nor any waiver of
LESSOR'S rights as Owner of the subject property. Nothing herein shall be deemed to
waive the LESSOR'S police powers. It is expressly understood, and agreed by LESSEE,
that LESSOR shall not be liable to LESSEE for any expense loss or damage incurred by
LESSEE resulting from the failure of LESSOR or any other governmental entity to
approve any or all necessary governmental approvals or permits required for the Leased
Premises. LESSEE acknowledges that the Leased Premises are located within the
Sebastian Community Redevelopment District and thus any change to the premises is
subject to such District's authority as well as provision of Chapter 163, Florida Statutes
and any future ordinances, statutes or other regulations applicable within the District.
F. All structures and fixtures to be constructed upon the Leased Premises shall be owned
by LESSEE during the term of the Lease and shall be exclusively controlled by LESSEE.
However, upon expiration, termination, revocation or surrender of this Lease, LESSOR
shall become owner of all structures, fixtures and improvements. LESSEE agrees to
execute bills of sale, documents of conveyance and assignments of warranties upon
request.
9. OPERATIONAL ADHERENCE. In addition to the duties provided in this Lease Agreement,
LESSEE shall comply with all requirements of the Stan Mayfield Working Waterfront Grant
Agreement and addendum signed by the LESSOR on April 24, 2010, attached hereto as Exhibit
"E ", and any State approved Management Plan and deed restrictions created pursuant to that
grant agreement.
10. BUILDING, UTILITIES, MAINTENANCE AND REPAIRS.
A. The LESSEE shall be solely responsible for the cost of installation, connection and usage
of water, sewer, electric, telephone, cable, solid waste, and information technology
services to the Leased Premises throughout the term of this Lease
B. LESSEE agrees that all portions of the Leased Premises shall be kept in good repair and
condition by LESSEE. LESSEE shall maintain and make all necessary repairs and
alterations with respect to the Leased Premises (including but not limited to necessary
replacements) to keep it in good condition. LESSEE'S sole right of recovery shall be
against it's insurers for losses or damage to stock, furniture and fixtures, equipment,
improvements and betterment. LESSEE agrees to make or contract for emergency
repairs and provide protective measures necessary to protect the Leased Premises from
damage and to prevent injury to persons or loss of life. LESSEE agrees to use its best
efforts to insure that the property is maintained in an attractive condition and in a good
state of repair. LESSEE shall also keep the Leased Premises free of trash and debris.
C. The interior and exterior of the Leased Premises shall be kept clean. It shall be
LESSEE'S responsibility to provide and pay for landscaping and exterior maintenance
services.
11. INSURANCE, INDEMNIFICATION AND DAMAGE BY CASUALTY.
A. LESSOR shall procure and maintain, during the term of this Lease, public liability all risk
insurance adequate to protect the LESSOR against liability for any and all damage
claims that may arise due to the activities of the LESSEE in amounts that are determined
by the LESSOR. Except as provided in subparagraph 11.0 below, LESSOR shall
annually bill and LESSEE shall reimburse these insurance costs.
B. LESSOR shall procure and maintain, during the term of this Lease, fire and other
casualty insurance in amounts as determined by the LESSOR. Except as provided in
subparagraph 11.0 below, LESSOR shall annually bill and LESSEE shall reimburse
these insurance costs.
C. LESSOR shall pay the insurance premiums for the insurance described in
subparagraphs 11.A and 11.B for the first year.
D. In the event LESSEE has paid employees, LESSEE agrees to take out and maintain,
during the term of this Lease, applicable worker's compensation insurance for all its
employees employed in connection with the business operated under this Lease. Such
insurance shall fully comply with the Workers Compensation Law, Chapter 440, Florida
Statutes. The workers compensation insurance policy required by this Lease shall also
include Employers Liability. LESSEE shall provide proof of worker's compensation
insurance as required by law, if applicable.
E. LESSOR shall not be liable for any loss, injury, death or damage to persons or property
which at any time may be suffered or sustained by LESSEE or by any person whosoever
may at any time be using or occupying or visiting the Lease Premises, or be in, on or
about the same, whether such loss, injury, death or damage shall be caused by or in any
way result from or arise out of any act, omission or negligence of LESSEE or of any
occupant, subtenant, visitor or user of any portion of the Leased Premises.
F. LESSEE shall indemnify LESSOR against all claims, liabilities, loss or damage
whatsoever on account of any such loss, injury, death or damage. LESSEE hereby
waives all claims against LESSOR for damages to the improvements that are now on or
hereinafter placed or built on the premises and to the property of LESSEE in, on or about
the premises, and for injuries to persons or property on the premises, from any cause
arising at any time. LESSEE agrees to hold harmless LESSOR from and against any
and all claims, lawsuits, judgments, or similar causes of action, for any injuries to persons
or property arising out of the activities conducted by the LESSEE on the property
described herein. Further LESSEE agrees to defend LESSOR against any and all such
claims and suits as described above at the LESSEE'S sole cost and expense with no
cost and expense to be incurred by the LESSOR.
12. TAXES. LESSEE will be required to pay all taxes or other levies or assessments lawfully
levied against the subject property during the term of the Lease, if any.
13. LESSEE'S RESPONSIBILITIES.
A. LESSEE agrees and covenants that it will not amend or otherwise change its articles of
incorporation, bylaws or rules and regulations without the prior review and consent of
LESSOR. Copies of LESSEE'S articles of incorporation, bylaws and rules and
regulations are attached hereto and incorporated herein as exhibits. LESSEE shall
ensure that its members are required to annually meet the membership criteria set forth
in its rules and regulations. LESSEE agrees annually to certify to LESSOR on or before
August 15th of each year those members who continued to qualify for corporate
membership as well as those members who shall be no longer qualified as members.
B. LESSEE as well as its members, officers, employees and invitees, when on the
premises, agrees to follow and abide by all local, state and federal laws, ordinances and
regulations and to follow and abide by the rules and regulations of the City of Sebastian,
Community Redevelopment Agency and the State of Florida as may be amended from
time to time.
C. LESSEE agrees to keep books, accounts and records that reflect all revenues and
expenditures received in connection with the management and operation of the property
as set forth in paragraph 7. The books, accounts and records shall be maintained in
accordance with generally accepted accounting principles and located at LESSEE'S
principal place of business. LESSEE shall make the books, accounts and records
required to be maintained hereunder available to the LESSOR for examination or audit
during normal business hours, upon five (5) days written notice. In addition, LESSEE
shall provide LESSOR with a copy of its annual audit and other financial statement(s)
relating to LESSEE'S occupancy and use of the Leased Premises.
14. INSPECTION BY LESSOR. The LESSOR and its agents, upon reasonable notice, may
make periodic inspections of the Leased Premises to determine whether LESSEE is operating in
compliance with the terms and conditions of this Lease. The LESSEE shall be required to make
any and all changes required by the LESSOR, which are necessary to ensure compliance with
the terms and conditions of this Lease and /or any applicable law(s) or regulations(s).
15. PROHIBITION ON ASSIGNMENT AND ENCUMBRANCES. LESSEE shall not assign this
Lease or sublet the Leased Premises to any other party without the prior express written approval
of LESSOR. Any attempt to assign this Lease or sublet the premises without the prior express
written approval of LESSEE will constitute an automatic termination of this Lease. This covenant
shall be binding on the successors in interest of LESSEE.
LESSEE shall be permitted to sublease dock slips and upland areas for clam raceways to
licensed commercial fisherman. Preference for slips and upland rental shall be given to
Sebastian commercial fisherman. LESSEE shall keep written records of all subleases as well as
the names, license commercial qualifications, dates of sublease and sublease sums collected.
LESSEE shall not mortgage, pledge, or encumber this Lease, in whole or in part, or the leasehold
estate granted under this Lease. Any attempted mortgage, pledge, or encumbrance of this
Lease, or the leasehold estate granted under this Lease, shall be void and may, at the sole option
of the LESSOR, be deemed an event of default under this Lease. This covenant shall be binding
on the successors in interest of LESSEE.
LESSEE shall not pledge the LESSOR'S credit or make it a guarantor for payment or surety for
any contract debt, obligation, judgment, lien or any form of indebtedness. LESSEE warrants and
represents that it has no obligation or indebtedness, which would impair its ability to fulfill the
terms of this Lease.
16. MISCELLANEOUS CONDITIONS.
A. LESSEE agrees all Members and persons engaged in commercial fishing and related
activities on the Leased Premises shall be at all times subject to the LESSEE'S sole
direction, supervision and control and shall not be considered employees agents or
servants of the LESSOR.
B. LESSEE agrees that it shall at all times prohibit recreational vessels at the Leased
Premises. LESSEE agrees that none of the vessels docked at the Leased Premises will
be used as a live aboard vessel for more than a forty -eight hour period.
C. LESSEE agrees to park its vehicles in places specifically designated by the LESSOR
and further agrees that no parking will occur in landscaped areas or blocking any
sidewalk or street. LESSEE shall prohibit commercial truck parking on the premises for
any duration other than what is reasonable for loading or unloading purposes. LESSEE
shall prohibit boat trailer parking on the premises for any duration other than what is
reasonable for loading or unloading purposes. The parties recognize that the ongoing
redevelopment efforts within the Sebastian CRA may result in changes in parking as well
as the configuration of vehicle parking on or adjacent to the Leased Premises. LESSEE
agrees to cooperate and coordinate with LESSOR in connection with parking projects
and /or reconfiguration.
D. LESSEE agrees to prohibit unauthorized persons on the Leased Premises and to prohibit
trespassing on the Leased Premises by use of appropriate signage.
E. LESSEE agrees to develop a fuel /hazardous substance containment plan within sixty
(60) days of the date of this Lease.
F. LESSEE for itself, and its permitted successors in interest, as a part of the consideration
for this Lease, does hereby covenant and agree that:
(1) No person shall be subject to discrimination in connection with LESSEE'S use of
the Leased Premises on the basis of age, sex, physical handicap or other
disability, race, color, national origin, religion or ancestry; and,
(2) LESSEE shall not discriminate against any employee or applicant for
employment in connection with the Leased Premises and the leasehold estate
granted hereunder with respect to hiring, tenure, terms, conditions, or privileges
or employment or any matter directly or indirectly related to employment on the
basis of age, sex, physical handicap or other disability, race, color, religion,
national origin or ancestry.
(3) LESSEE agrees that its facilities and program shall from time to time and at all
times comply with the American with Disabilities Act (ADA), if applicable.
LESSOR and LESSEE recognize that the commercial fishing docks are not a
public accommodation, however, LESSEE shall cause the Leased Premises to at
all times comply with all applicable ADA requirements that may be in effect from
time to time.
G. LESSEE shall furnish LESSOR with a list of its officers and board of directors and notify
LESSOR of the names of any new officers and Board of Directors at the time of their
election. LESSEE shall furnish LESSOR with the names and addresses of LESSEE'S
offices and employees who have the authority to pay LESSEE'S bills.
H. LESSEE shall assist the LESSOR in providing information and documentation as it
relates to providing the Florida Communities Trust with an annual report.
17. TERMINATION.
A. The LESSOR may have the right to terminate this Lease upon the occurrence of any of
the following, hereinafter referred to as "Event of Default".
(1) Institution of proceedings in voluntary bankruptcy by the LESSEE.
(2) Institution of proceedings in involuntary bankruptcy against the LESSEE if such
proceedings continue for a period of ninety (90) days and are not dismissed.
(3) Assignment of this Lease for the benefit of creditors.
(4) Abandonment by LESSEE of the Leased Premises or discontinue of operation of
the Leased Premises to the permitted uses for more than sixty (60) days.
(5) Dissolution whether voluntary or involuntary of LESSEE'S not for profit
corporation.
(6) Default, non - performance or other noncompliance with any covenant, requirement
or other provision of any nature whatsoever under this Lease.
B. Upon the occurrence of an Event of Default, the LESSOR shall send a written notice to
LESSEE, setting forth the Event of Default in specific detail and the date this Lease shall
terminate in the event LESSEE does not cure the default.
C. Within thirty (30) days following receipt of a default notice, LESSEE shall have cured the
default to the reasonable satisfaction of the LESSOR.
D. In the event LESSEE fails to cure the Event of Default within thirty (30) days, this Lease
shall be deemed to be terminated with no further action by the LESSOR. In no event,
however, shall such termination relieve LESSEE of its obligation to pay any and all
remaining rent due and owing to the LESSOR for the period up to an including the date
of termination or to provide any and all remaining reports to the LESSOR for such period.
E. LESSEE shall have the right, upon providing thirty (30) days prior written notice to the
LESSOR in the manner set forth in this Lease, to terminate this Lease at any time for any
reason.
18. INTEGRATION. The drafting, execution and delivery of this Lease by the parties has been
induced by no representations, statements, warranties or agreements other than those expressed
in it. This Lease contains the entire agreement between the parties and there are no further or
other agreements or understandings written or oral in effect between the parties relating to its
subject matter. This Lease cannot be changed or modified except by written instrument executed
by all parties hereto. This Lease and the terms and conditions hereto apply to and are binding
upon the heirs, legal representatives, successors and assigns of both parties.
19. SEVERABILITY. If any term of this Lease or the application thereof to any person or
circumstances shall be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease, or the application not such term to persons or
circumstances other than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Lease shall be valid and shall be valid and enforceable to the
fullest extent permitted by law.
20. PROPERTY INTERESTS. Nothing contained in this Lease shall be deemed to create or be
construed as creating in LESSEE any property interest in or to the Leased Premises.
Notices. All notices required under this Lease shall be sent by certified mails as follows:
LESSOR: City of Sebastian
1225 Main Street
Sebastian, Florida 32958
ATTN: City Manager's Office
A Copy shall be provided to the Sebastian City Attorney's Office.
LESSEE: Fisherman's Landing Sebastian, Inc.
Post Office Box 782038
Sebastian, FL 32978 -2038
21. GOVERNING LAWIVENUE. This Lease shall be governed and construed in accordance
with Florida law. In the event that litigation arises involving the parties to this Agreement, venue
for such litigation shall be in Indian River County, Florida.
IN WITNESS WHEREOF, the Parties have executed this Lease on the dates set forth above.
ATTEST LESSOR
City of Sebastian, Florida
tai • i' ' 1 �""'�
Sally Maio, M Rich d t1mor
City Clerk Mayor
APPROVED AS TO FORM AND
CORRECTNESS
Robert A. Ginsburg
City Attorney
LESSEE
Fisherman's Landing Sebastian, INC.
Witness By: Ed Manga
President
Exhibit A
_4w,
I
Division of • •• :
November 14, 2008
CHARLES W. SEMBLER
6945 49TH STREET
VERO BEACH, FL 32967
Re: Document Number N08000004478
The Articles of Amendment to the Articles of Incorporation for FISHERMAN'S LANDING
SEBASTIAN, INC., a Florida corporation, were filed on November 10, 2008.
The certification requested is enclosed.
Should you have any question regarding this matter, please telephone (850) 245 -6050,
the Amendment Filing Section.
Thelma Lewis
Document Specialist Supervisor
Division of Corporations Letter Number. 308A00057268
P.O. BOX 6327 - Tallahassee, Florida 32314
Articles of Amendinent
to
Articles of Jncorporation
of
�.•.. t J
(r !-
4,1 0
(Document Number of Corporation (if known)
Pursuant to the provisions of section 617.1006, Florida Statutes, this
tiie following amcndment(s) to its Articles of Incorporation:
Florida No' For Profi/ Corporation adopts
A. If tnendin am enter the new namc of the cot n
rzttion;
The new name must be disringuiahable and contain the word "corporation" or "incorporated" or the
abbreviation "Corp. "or " Inc. " C- m an "ar " M
�'o. ma not he used in the name•
13. Enter new rincl u1 o ice add ss ii i bl
(pr/ncipai office address MUST BEA STREET�p� )
C. Enter new M 1 a.+.Jress if aonlicabte
(Marling address MAYBEA POST OFFICE B0.
9
Name o Nc:w Re icrered A ent.
New Reni_ctered Once Addresr;
(Florida street address)
Florida_____o__
(Zip Code)
New Registered Axcnt ?s 5fenature if han in �teQistc t abo.,t.
I hereby accept the uppo,nnnenr as regrstered agent: I um familiar with and accept the obligations of the
positi6n.
Signature of New Registered Agent, ijchanging
Page t of 3
(Attach additional sheers, if necessary)
Title Name
Address
E. I amendin or addine additional Articl a trr ChnIgsl here:
(attach additional sheets, if necessary). (Be specific)
ARTICLE III P! H7Dnoc14-1
s
for
Type of Ac_ tionn
D Add
D Remove
®'Add
D Remove
Q Add
D Remove
Itural and historic herita a of Florida's traditional
terfront means a activities for the ur _se of the
roducts b state - licensed
commercial fishermen, a uaculturists, or business entities, includin Iers wharves,
docks, or other facilities operated to pro.vide waterfront access to licensed cormnerciai
fishermen a .uaculturists or business entities; orb activities for exhibit'ons
demonstrations educational venues civic events and other ur ses that romote and
the public about economic. cultural and historic heritage of Florida's traditional work,no
waterfronts, including the marketing of the seafood and aquacuiture industries
Page 2 of 3
Said organization is organized exclusively for charitable, educational a
scientific purposes, including, for such Purposes, and
Organizations that qualify as exempt organizations u der�Sect on' 501 cions to
Internal Revenue Code, or corresponding section of any future federal tax of the
x code.
No part of the net earnings of the organization shall inure to the benefit of
or be distributable to its members,. trustees, officers, or other private person
except that the organization shall be authorized and empowered to pay s '
reasonable compensation
pensatio for services rendered and to make payments and
Distributions in furtherance of the purposes set forth in the purpose clause
hereof. No substantial part of the activities of the organization shall be the
caring on of propaganda, or otherwise attempting to influence legislation, an d
the organization shall not participate in, or intervene in (including the publishing or distributions Of .Statements) and political campaign on behalf of any candidate
for public office.
Notwithstanding any other provision of this document, the organization
shall not carry on any other activities not permitted to be carried on () b
(c)
organization exempt from Federal income tax under section 501 ( (3) of th) y the
Internal Rev (
Re-venue Code, or corresponding section of any future tax code, or b
an organization, contributions to which are deductible under section 170 c ) by
the Internal Revenue Code, or corresponding section of any future federal taxi of
code,
Upon'.the dissolution of the organization, assets shall be distributed for
one or more exempt purposes within the meaning of section 501 c
Internal Revenue Code, or corresponding section of any future Federal tax(c
or shall be distributed to the federal government, or to a state or local ode,
government, for a public purpose. Any such assets not disposed of shall be
disposed of. by the Court of Common Pleas of the county in which the principal
Office of the organization Is then located, exclusively for such purposes or to suc
organization of organizations, as said Court shall determine h
and operated exclusively for such purposes. which are organized
The date of each amendment(s) adoption: November 1, 2008
Effective date ifalfta ahh: November 1, 200$
(no more than 90 days after amendment file dare)
Adoption of Amendment(s) CHECK ONF
® The amendments) was/were adopted by the members and the number of votes cast for the amendment (s)
was/were sufficient for approval. ( )
There are no members or members entitled to vote on the amendment(s), The amendments was/w'
adopted by the board of directors. () ere
/ //.7l0P:
Signature
(By the chairman or vice chairman of the board, president or other offtcer-if directors
have not been selected, by an incorporator =if in the hands of a receiver, trustee, or
other court appointed fiduciary by that fiduciary)
C,.��IQs w • � l�
(Typed or printed name of person signing)
(Title of person signing)
Page 3 of 3
BY -LAWS
OF
_.. FISHERMAN'S LANDING SEBASTIAN, INC.
ARTICLE I - OFFICERS
The principal office of the corporation shall be at: 6945 49 "' Street, City of Vero Beach,
County of Indian River, State of Florida, Zip 32967.
The Corporation may also have offices at such other places within or without this state at
the board may from time to time determine or the business of the corporation may require.
ART] CLE I — PURPOSES
The purposes for which this corporation has been organized are as follows:
To provide waterfront access to licensed commercial fisherman, aquaculturists, or
business entities for their commercial harvest of marine organisms or saltwater products and
conduct exhibitions, demonstrations and educational venues to promote and inform the public
about the economic, cultural and historic heritage of Florida's .traditional working waterfronts
Working waterfront means (a) activities for the purpose of the commercial harvest of marine
organisms or saltwater products 'by state - licensed commercial fishermen, aquaculturists, or
business entities, including piers, wharves, docks or other facilities operated to provide waterfront
access to licensed commercial fishermen; aquaculturists, or business entities; or (b) activities for
exhibitions, demonstrations, educational venues, civic events and other purposes that promote and
educate the public about the economic; cultural and historic heritage of Florida's traditional
working waterfronts, including the marketing of the seafood and aquaculture industries.
Said organization is organized exclusively for charitable, educational and scientific
purposes, including for such purposes, the making of distributions to organizations that qualify as
exempt organizations under Section 501: (c)(3) of the Internal Revenue Code, or corresponding
section of any future federal tax code.
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ARTICLE III — MEMBERSHP
1. QUALIFICATIONS FOR MEMBERSHIP.
A. All members of the Corporation must be approved by the governing board
B. All members must be free of any criminal record, except for minor traffic
violations
C. All members must agree to the intended purpose of the Corporation and
dedicate themselves to accomplishing its mission.
D. All members must sign the Conflict of Interest Policy as adopted by the Corporation.
E. No member may be a party to or carry on any other activities not permitted to be
carried on (a) by an organization exempt from Federal Income tax under Section 501
(c)(3) of the Internal Revenue Code, or corresponding section of any future tax code,
or (b) by an organization, contributions to which are deductible under section 170
(c)(2) of the Internal Revenue Code, or corresponding section of any future federal
tax code.
F. No member shall participate in activities deemed to be carrying on of propaganda, or
otherwise attempting to influence legislation, or intervene in a political campaign on
behalf of any candidate for public office, through this organization, because of this
organization or on its behalf. This does not preclude an member's right as a citizen
of the United States and any state thereof, from participating in campaigns for public
office or the legislative process as a private citizen.
2
2. MEMBERSHIP MEETINGS.
Th�a.Vival membership meetiR& of the corporation shall be held
on the ►rs day of gust each year except that
if such day be a legal holiday then in that event the directors shall fix a day
not more than two weeks from the date fixed by these by -laws. The
secretary shall cause to be mailed to every member in good standing at his
address as it appears on the membership roll book of the corporation a
notice stating the time and place of the annual meeting.
Regular meetings of the corporation shall be held:
6945 49`' Street, Vero Beach, Florida 32967 or any other designated
place as the directors from time to time shall dictate.
The presence at any membership meeting of not less than
two members shall constitute a quorum and shall be
necessary to conduct the business of the corporation; however, a lesser
number may adjourn the meeting for a.period of not more than
. four weeks from the date scheduled by the by -laws and
the secretary shall cause a notice of the re- scheduled date of the meeting to
be sent to those members who were not present at the meeting originally
called. A quorum as hereinbefore set forth shall be required at any
adjourned meeting,
A membership roll showing the list of members as of the record
date, certified by the secretary of the corporation, shall be produced at any
meeting of members upon the request therefore of any member who has
given written notice to the corporation that such request will be made at
least ten days prior to such meeting. All persons appearing on such
membership roll shall be entitled to vote at the meeting.
3. SPECIAL MEETINGS:
Special meetings of the corporation may be .called by the directors.
The secretary shall cause a notice of such meeting to be mailed to all
members at their addresses as they appear in the membership roll book at
least ten days but not more than fifty days before the scheduled date of
such meeting. Such notice shall state the date, time, place and purpose of
the meeting and by whom called.
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No other business but that specified in the notice may be transacted
at such special meeting without the unanimous consent of all present at
such meeting.
4. FIXING RECORD DATE.
For the purpose of determining the members entitled to notice of
or to vote at any meeting of members or any adjournment thereof, or to
express consent to or dissent from any proposal without a meeting, or for
the purpose of determining the members entitled to receive any
distribution or any allotment of any rights, or for the purpose of any other
action, the board shall fix, in advance, a date as the record date for any
such detennin5tion of members. Such date shall not be more than fifty nor
less than ten days before any such meeting, nor more than fifty days prior
to any other action.
5. ACTION BY MEMBERS WITHOUT. A MEETING.
Whenever members are required or permitted to take any action by
vote, such action may be taken without a meeting by written consent,
setting forth the action so taken, signed by all the members entitled to vote
thereon.
6. PROXIES.
Every member entitled to vote at a meeting of members or to
express consent or dissent without a meeting may authorize another person
or persons to act for him by proxy.
Every proxy must be signed by the member or his attorney,in - fact.
No proxy shall be valid after the expiration of eleven months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the member executing it, except as otherwise
provided by law.
7. ORDER OF BUSINESS.
The order of business at all meetings of members shall be
as follows:
1. Roll call
2. Reading of the minutes of the preceding meeting
3. Reports of committees
4. Reports of officers
5. Old and unfinished business
6. New business
7. Good and welfare
8. Adjournments
8. MEMBERSHIP DUES.
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ARTICLE IV — DIRECTORS
MANAGEMENT OF THE CORPORATION.
The corporation shall be managed by the board of directors
which shall consist of not less than three directors. Each director shall be at
least nineteen years of age.
2. ELECTION AND TERM OF DIRECTORS.
At each annual meeting of members the membership shall elect
directors to hold office until the next annual meeting. Each director shall hold
office until the expiration of the term for which he was elected and until his
successor has been elected and shall have qualified, or until is prior
resignation or removal.
INCREASE OR DECREASE IN NUMBER OF DIRECTORS.
The number of directors may be increased or decreased by vote of the
members or by a vote of a majority of all of the directors. No decrease in
number of directors shall shorten the term of any incumbent director.
4. . NEWLY CREATED DIRECTORSHIPS AND VACANCIES.
Newly created directorships resulting from an increase in the number
of directors and vacancies occurring in the board for any reason except the
removal of directors without cause may be filled by a vote of a majority of the
directors then in office, although less than a quorum exists, unless otherwise
provided in the certificate of incorporation. Vacancies occurring by reason of
the removal of directors without cause shall be filled by vote of the members.
A director elected to fill a vacancy caused by resignation, death or removal
shall be elected to hold office for the unexpired term of his predecessor.
5. REMOVAL OF DIRECTORS.
Any of all of the directors may be removed for cause by vote of the
members or by action of the board. Directors may be-removed without cause
only by vote of the members.
6. RESIGNATION
A director may resign at any time by giving written notice to the
board, the president or the secretary of the corporation. Unless otherwise
specified in the notice, the resignation shall take receipt thereof by the board
or such officer, and the acceptance of the resignation shall not be necessary to
make it effective-
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QUORUM OF DIRECTORS.
Unless otherwise provided in the certificate of incorporation, a
bus' of the entire board shall constitute a quorum for the transaction of
iness or of any specified item of business.
8• ACTION OF THE BOARD.
Unless otherwise required by law, the vote of a majority of the
directors present at the time of the vote, if a quorum is present at such time,
shall be the act of the board. Each director present shall have one vote.
PLACE AND TIME OF BOARD MEETINGS.
The board may hold its meetings at the office of the corporation or at
such other places, either with
time determine. in or without the state, as it may from time to
10. REGULAR ANNUAL MEETING.
A regular annual meeting of the board shall be held immediately
following the annual meeting of the members at the place of such annual
meeting of members.
] 1. NOTICE OF MEETINGS OF THE BOARD, ADJOURNMENT.
Regular meetings of the board may be held without notice at such time
and place as it shall from time to time determine. Special meetings ofthe
board shall be held upon notice to the directors and may be called by the
president upon three days' notice to each director either personally or by mail
or by wire; special meetings shall be called by the president or by the
secretary in a like manner on written request of two directors. Notice of a
meeting need not be given to any director who submits a waiver of notice
whether before or after the meeting or who attends the meeting without
protesting prior thereto or at its commencement, the lack of notice to him.
A majority of the directors present, whether or not a quorum. is present,
may adjourn any meeting to another time and place. Notice of the
adjournment shall be given all directors who were absent afthe time of the
adjournment and, unless such time and place are announced at the meeting, to
the other directors.
12. CHAIRMAN.
At all meetings of the board the president, or in his absence, a chairman
chosen by the board shall preside.
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13. EXECUTIVE AND OTHER COMMITTEES.
The board, by resolution adopted by a majority of the entire board,
may designate from among its members an executive committee and other
committees, each consisting of three or more directors. Each such committee
shall serve at the pleasure of the board.
ARTICLE V — OFFICERS
OFFICES, ELECTION, TERM.
Unless otherwise provided for in the certificate of incorporation, the
board may elect or appoint a president, one or more vice - presidents, a
secretary and a treasurer, and such other officers as it may determine, who
shall have such duties, powers and functions as hereinafter provided. All
officers shall be elected or appointed to hold office until the meeting of the
Board following the annual meeting of members. Each officer shall hold
office for the term for which he /she is elected or appointed and until his
successor has been elected or appointed and qualified.
2. REMOVAL, RESIGNATION, SALARY.
Any officer elected or appointed by the board may be removed by the
Board with or without cause. In the event of the death, resignation or removal
of an officer, the board in. its discretion may elect or appoint a successor to fill
the unexpired term. Any two or.more offices may beheld by the same person,
except the offices of president and secretary. The salaries of all officers shall
be fixed by the board.
3. PRESIDENT.
The president shall be the chief executive officer of the corporation;
he /she shall preside at all meetings of the members and of the board; he /she
shall have the general management of the affairs of the corporation and shall
see that all orders and resolutions of the board are carried into effect.
VICE - PRESIDENTS.
During the absence or disability of the president, the vice - president, or
if there are more than one, the executive vice - president, shall have all the
powers and functions ofthe president. Each vice - president shall perform such
other duties as the board_ shall prescribe.
S. . TREASURER.
The treasurer shall have the care and custody of all the funds and
securities of the corporation, and shall deposit said funds in the name of the
corporation in such bank or trust company as the directors may elect; he /she
shall, when duly authorized by the board of directors, sign and execute all
contracts in the name of the corporation, when countersigned by the
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president; he /she shall also sign all checks, drafts, notes, and orders for the
payment of money, which shall be duly authorized by the board of directors
and shall be countersigned by the president; he /she shall at all reasonable
times exhibit his /her books and accounts to any director or member of the
corporation upon,application at the office of the corporation during ordinary
business hours. At the end of each corporate )ear, he /she shall have an audit
of the accounts of the corporation made by a committee appointed by the
president, and shall present such audit in writing at the annual meeting of the
members, at which time he /she shall also present an annual report setting
forth in full the financial conditions of the corporations.
6. ASSISTANT - TREASURER.
During the absence or disability of the treasurer, the assistant -
treasurer, or if there are more than one, the one so designated by the secretary
or by the board, shall have the powers and functions of the treasurer.
SECRETARY.
The secretary shall keep the minutes of the board of directors and also
the minutes of the members. He /she shall have the custody of the seal of the
corporation and shall affix and attest the same to documents when duly
authorized by the board of directors. He/she shall attend to the giving and
serving of all notices of the corporation, and shall have charge of such books
and papers as the board of directors may direct; he /she shall attend to such
correspondence as may be assigned to him /her, and perform all the duties
incidental to his/her office. He /she shall keep a membership roll containing
the names, alphabetically arranged, of all persons who are members of the
corporation, showing their places of residence and the time when they became
members.
ASSISTANT-SECRETARIES.
During the absence or disability of the secretary, the assistant = secretary, or
if there are more than one, the one so designated
board, shall have all the powers and function ofthetsecretary. or by the
9. SURETIES AND BONDS
In case the board shall so require, any officer or agent bf the corporation
shall execute.to the corporation a bond in such sum and with such surety
or sureties as the board may direct, conditioned upon the faithful
performance of his/her duties to the corporation and including
responsibility for negligence and for the accounting for all property, funds
or securities of the corporation which may come into his/her hands.
ARTICLE VI — SEAL
The seal of the corporation shall be as follows:
ARTICLE VII — CONSTRUCTION
If there be any confl
and these b ict between the provisions of the certificate of incorporation
- laws, the provisions of the certificate of incorporation shall govern.
ARTICLE VIII — AMENDMENTS
The by-laws may be adopted, amended or repealed by the me
they are entitled to vote in the election of directors. B -
amended or repealed b tubers at the time
y the board of directors but any b laws may also be adopted,
repealed by the board may be amended by the members entitled dtopvote thereon as or
hereinbefore provided.
If any b}L law regulatin
or repealed by the board, there shall be etdforth in the ot directors
Ce of the readopted, amended
members for the election of directors the b� law so adopted, amended t
together with a concise statement of the changes made. , meeting of or repealed,
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INTERNAL REVENUE SERVICE
P. 0. BOX 2508
CINCINNATI, OH 45201
Date:
BAR 2 6 ZDQ9
FISHERMANS LANDING SEBASTIAN INC
C/O CHARLES W. SEMBLER, II
6945 49TH ST
VERO BEACH, FL 32967
Dear Applicant:
DEPARTMENT OF THE TREASURY
Employer Identification Number:
26- 3167943
DLN:
17053242319018
Contact Person:
BRENDA WILKINS ID# 52638
contact-Telephone Number:
(877) 829 -5500
Accounting Period Ending:
December 31
Public Charity Status:
170 (b) (1) (A) (vi )
Form 990 Required:
Yes
Effective Date of Exemption:
May 6, 2008
Contribution Deductibility:
Yes
Addendum Applies:
No
We are pleased to inform you that upon review of your application
exempt status we have determined that you are exempt from Federal i
under section 501(c)(3) of the Internal Revenue Co pp ton for tax
deductible under section 170 of the Code. You are also qualified income tax
tax deductible bequests, devises, e C de. de' Contributions re you are
or 2522 of the Code. Because this letter could help resolve q 1ed to receive
transfers or gifts under section questions
s
regarding your exempt status, p any questions
p you should keep it in your permanent records.
Organizations exempt under section 501(c)(3) of the Code
as either public charities or private foundations are further classified
a public charity under the Code section-(s) listed inW g
theeheadind that you are
Ietter. _ 9 of this
Please see enclosed Publication 4221 -PC, Compliance
Charities, for some helpful information about yourrespons bi1501(c)(3) Public
exempt organization. ities as an
Letter 947 (DO /CG)
-2-
FISHERMANS LANDING SEBASTIAN INC
Enclosures: Publication 4221 -PC
Sincerely,
Robert Choi
Director, Exempt Organizations
Rulings and Agreements
Letter 947 (DO /CG)
Exhibit B
C
EXHIBIT A
Lots 1, 2 and 3, Block 2, Middleton's Subdivision of City o V astian,
according to the map or plat thereof as recorded in Plat Boo 2, Page 56,
Public Records of Indian River County, Florida.
Property Appraiser's Account Nos: 217310, 217320 & 217330
TOGETHER WITH
From a point of beginning at the intersection of the South line of
Government Lot 2, of Section 31, Township 30 South, Range 39 East, Indian
River County, Florida, and the Mean High Water Mark of the West bank of
Indian River, run West along said South line of Governmental Lot 2 a
distance of 80.05 feet, more or less, to the East right -of -way of Old U.S.
Highway No. 1, said right -of -way being 66 feet in width; thence run North
25 022' West along said East right -of -way line istance of 71.45 feet; then
run East, parallel to the South line of sai G ernmental Lot 2, a distance
of 94.89 feet; thence run North 70 °45' Eas a distance of 132.03 feet to the
established bulkhead line; thence run So 25 °22' East along said bulkhead
line a distance of 66.43 feet; thence outh 70 045' West a distance of
145.50 feet to the point of beginning the Mean High Water Line of Indian
River and on the South line of said v ment Lot 2;
Property Appraiser's Account No. 7 0
AND ALSO all of that part of Lo , Block 1, MIDDLETON'S SUBDIVISION OF CITY
OF SEBASTIAN, according to pl ereof recorded in Plat Book 2, Page 56,
Public Records of Indian Riv ounty, Florida lying East of Indian River
Drive (Old U.S. Hwy #1) an as follows:
From a point beginning a the Mean High Water line of the West shore of the
Indian River on the Town Line between Township 30 South and Township 31
South, run West along s Township line (same being the North line of said
Lot 1, Block 1, MIDDLE 'S SUBDIVISION OF CITY OF SEBASTIAN, a distance of
80.05 feet more or le , to the East right -of -way of Indian River Drive (Old
U.S. Highway No. 1) aid right -of -way being 66 feet in width; thence run
South 25 022' East along said East right -of -way a distance of 90 feet; thence
run North 80 000100" East a distance of 113 feet more or less to the Mean
High Water Line of the Indian River; thence meander the Mean High Water Line
in a Northwesterly direction to the point of beginning.
Property Appraiser's Account No. 217290
4r
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EXHIBIT 'A"
LEGAL DESCRIPTION UPLAND PARCEL
THE SOUTH 13 FEET OF LOT 1 AND ALL OF LOT 2, BLOCK 1, MIDDLETON'S
SUBDIVISION, ACCORDING TO THE PLAT RECORDED IN PLAT BOOK 2,
PAGE 56, PUBLIC RECORDS OF INDIAN RIVER COUNTY, FLORIDA,
MORE PARTICULARLY DESCRIBED AS FOLLOWS,
BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF
MIDDLETON'S SUBDIVISION AND THE EAST RIGHT -OF -WAY LINE OF
INDIAN RIVER DRIVE (BEING A POINT 37.15 FEET DUE EAST OF THE
CENTERLINE OF INDIAN RIVER DRIVE), THE POINT OF BEGINNING;
THENCE NORTHERLY 118 °41'37" ALONG THE EAST RIGHT -OF -WAY LINE
OF INDIAN RIVER DRIVE, A DISTANCE OF 184.75 FEET MORE OR LESS TO
A CONCRETE MONUMENT MARKED "X'; THENCE RUN EAST 10° NORTH
OF DUE EAST TO THE HIGH WATERLINE OF THE INDIAN RIVER; THENCE
SOUTHERLY ALONG THE HIGH WATER LINE OF SAID INDIAN RIVER TO A
POINT INTERSECTING THE EASTERLY PROJECTED SOUTH LINE OF
MIDDLETON'S SUBDIVISION AND THE HIGH WATER LINE OF THE INDIAN
RIVER, THENCE DIVEST TO THE POINT OF BEGINNING. BEING A PART OF
GOVERNMENT LOT 1, SECTION 6, TOWNSHIP 32 SOUTH, RANGE 39 EAST.
TOGETHER WITH A UPLAND, SUBMERGED LAND, LITORIAL RIGHTS,
SHORE RIGHTS AND RIPARIAN RIGHTS LYING TO THE EAST THEREOF TO
THE CENTER OF THE INDIAN RIVER TO THE EXTENT THAT SAME
APPERTAIN TO THE PROPERTY ABOVE DESCRIBED.
SUBJECT TO ALL LIENS, EASEMENTS AND RESTRICTIONS OF RECORD,
IF ANY.
Exhibit C
Exhibit C - LOCATION MAP
Exhibit D
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Exhibit E
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Florian Co u11.:11.uuunifies 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:
MAY 112009
P?--Z G ff,ylp3 ^i;sa ll.
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 (85 0) 922 -1692 (SunCom 292 - 1692).
Sincerely,
(- � 31-�
Jay Sircy
Grants Specialist IV
js1
Enclosures
DEPARTMENT of CoNLmuwrYAnAiRs - 2555 SHUMARD OAK BOUT VARD - TAuAHASSEE, FL 32399 -2100
850/922 -2207 - SuNCoM 292 -2207 • FAX 850/921 -1947
FCT Contract Number (fit' -CT- EZ - 06 - F fl 1- W�l3
FLORIDA COMMUNITIES TRUST
08- 003 -WW1
SEBASTIAN WORKING WATERFRONT
COLLABORATIVE
CSFA # 52.013
STAN NUYTULD WOMONG WATERFRONT
GRANT CONTRACT
THIS AGREEMENT is entered into by and between the FLORIDA COMMUNITIES TRUST
( "FC'r ), anon- regulatory agency within the State of Florida Department of Community Affairs, and
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 3.80, 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 comprehensiveplans 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 %0), 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.2) sets forththeprocedures for
the evaluation and selection of lands proposed for acquisition and Rule 9K -10, F.A.C. sets forth the
acquisition procedures;
0"03-WW1
Apn'i 15; 2009
sIVIww - 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
—._ 9 projec _are -5 Ec e - or-
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
G8-003-WW1
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 Agreementto FCT as
soon as possible so that the Project Site may be acquired in an expeditious manner.
om the Froi ect ite property owner(s) evidencing that the owner(s) is willing to entertain an offer
from the Recipient and FCT, ifnot 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 m no
event - exceed the lesser of Percent (90 %) ofthe 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 oftheMAPP, 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 appli cation. 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 theproj project design
is Changed..so that the objectives of the acquisition cannot be achieved. FCT shall consider any
request for F.A.C. Project Site
9K- 9.009, boundary modification in accordance with the procedures set forth in Rule
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If the Project Site is comprised ofmultiple parcels and multiple owners, then FCT reserves the right
to withdraw or adjust the FCT Award if the priority parcel(s) Ora significant portion of the e
Site cannot be acquired.
3- The FCT Award shall be delivered e therin the form ofPrcject CostsprepaidbyFCT
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,
Comptroller determines that such disbursement is consistent with good business nt, provided the
completed in a manner minimizing costs and risks to s the State of Florida. If �e and canbe
comprised of multiple parcels, FCT shall deliver at the closing of each parcel and Site is
FCT Award that corresponds to the parcel being closed. FCT shall r y hare of the
statementprior to the closing of the Project Site parcel that evidences thepamount of r
grant reconciliation
ovnded
Project Costs shall be recognized as part of the FCT Award on the -
- xpended-by- FCT-�or
grant reconciliation statement.
4. If. a Match is required, it shall be delivered in an approved form as provided in Rule
9K- 9.04205), F.A.C. If the Project Site' s comprised of multiple parcels, the Recipient shall deliver
at the closing of each parcel the share of the Match that corresponds to the Parcel ed.
Funds expended by the Recipient for Project Costs shall be recognized
P 1 being closed,
grant reconciliation statement. grazed as Part of the Match on the
5. By executing this Agreement, the Recipient affirms that it
provide a Match, if any is required. is ready, willing and able to
6. Ifthe Recipient is the local government having
an action by the Recipient subsequent to the FCT Governing B d selection Project e SS e' and
governmentally derived higherProject Site land value due to an e meeting is in a
acquisition activities shall be terminated unless the Seller agrees e pghes� d � use, FCT
on the highest and best use of the Project Site on or before the FCT Govemin B) based
meeting. g Board selection
7• FCT's performance and obligation to financiallyperl'o
contingent upon an annual appropriation. by the Flori da Legislature, and is ssu Agreement is
bje
modification in accordance with Chapter 216, Fla. Stat. or the,Florida Constitution, ct to any
8• FCT's performance and obligation to financiall y contingent upon the issuanceOfFloridaForeverRevenueBonds} ssuedobytheState fFl�dmen o is
the proceeds of the Florida Forever Revenue Bonds being released to the. D a and of
epartrnent.
V. NOTICE AND CONTACT
1. All notices provided under or pursuant to this Agreement shall be in writin g and
delivered either by hand delivery or first class, certified mail, return receipt requested, toc
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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
Growth Management Dire
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 Minner
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 desi
Paragraph 2. or 3. above after execution of this Agreement, notice gnated for either
ofthe 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 Numbers) is 59-6000427
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VI. PRE - CLOSING RFQuHZEMENTS
Prior to FCT approval of the signed purchase agreement(s), closing(s) of the real
estate transaction(s) to acquire the Proj
Recipient shall submit to FCT: ect Site and final disbursement ofthe FCT Award, the
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 Agreem,
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 VHA. below.
2. FCT shall approve the terms under which the interest in land is acquired pursuant to
S ecti-on 3$0.510(3), Fla Stat. Such approval is deemed given when FCT approves and executes the
purchase agreement:for acquisition ofthe Project Site, fiirtlier described in paragraph VL La. above.
3. All real property shall be obtained through a Voluntarily- Negotiated Transaction, as
defined in Rule 9K-9.002(42). 'Meuse 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 STEWARUSM" REPORT
1. Prior to the signature of the purchase agreement(s), closing(s) of the real estate
transaction(s) and final disbursement oft FCT Award, the Recipient shall submit to FCT and havP
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approved Management Plan that
and conditi complies with Rule 9K- 9.010, F.A.C. and addresses the criteria
conditions set forth in Articles VII, VIII, IX, X and XI herein. The Recipient is strongly urged
to eoordinate with FCT staff in order to ensure that FCT approval of the Managem t Pl occurs
prior to the closing date of the real estate transaction en an
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 include the fo Agreement
sha The Management Plan
ll llowing: i
a. An. introduction containing the project name, location and other background
information relevant to management.
----- �- ..---- _--- -�-e -- stated -.___- - - -- --
oseor ac uinn fhe Protect 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 ofproposed educational displays and programs tote offered, if
applicable.
f. A schedule for implementing the development and man
the Management Plan . agement activities of
g- Cost estimates and funding sources to implement the Management Plan.
3. If the Recipient is not the proposed managing entity, the Management PIan shall
include a signed agreement between the Recipient and the managing
entity's willingness to manage the site, the :manner
purpos in which the site will be msanaged toefurth the
es} 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
management responsibilities and obligations incurred by each partner for the Proj and
ect Site as a part of
its Project Plan.
4.. To ensure that future management funds will be available for the management ofthe
site in perpetuity pursuant to Section 259.105 and Chapter 380, Part III, F1'a.Stat., the Recipient(s)
shall be required to provide FCT with Reasonable Assurance, pursuant to Rule
F.A.C., that it has the financial resources, background, qualifications and - competence to manage e the
Project Site in perpetuity in a reasonable and professional manner. g
Non-
profit Working Waterfront Organization and does not include at least O.ne Local Governmentpartner,
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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 enpl oyees, prevent the unauthorized use
of the Project Site or any use thereof not 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 stmcehjrPe
Management Plan addressing the items mentioned herein shall be cons pered writteneappro
d vaall
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 Flan conditions already described in this Agreement, which applyto
all.sites acquiredwith 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 9X-
9.007, F.A.C.:
i - 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.
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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 thepublic about the economic,
cultural, or historic heritage of Florida's traditional Working Waterfronts
DL DECLARATION OF RESTRICTIVE COVENANTS REQUIREMENTS EVROSED
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 witli Sections 375.051 and 380.510, Fla. Stat; Section l l (e), Article VII of the Florida
Constitution; the applicable bond indenture under which the Bonds were issued; and anyprovision of
the Internal Revenue Code or the regulations promulgated thereunder that pertain to tax exempt
bonds. The Declaration ofRestrictive 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 ofRestrictive Covenants shall also restate the conditions that were
placed on the Project Site at the time ofproj ect selection and initial grant approval. The Declaration
ofRestrictive Covenants shall be executed by FCT and the Recipient at the time ofthe closing ofthe
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 ofnotice ofthe violation. Ifthecuring
activities can not be ,reasonably completed within the specified thirty (3.0) 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 frame for the completion of curin>r
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Apn115, 2009
99WW - GC
activities. FCT shall submit a written response within thirty (3 0) 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) daytime 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
:1
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 ca. tegory 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 TFAE RECIPIENT RELATING TO THE USE OF BOND
PROCEEDS
I _ FCT is authorized by Section 3 80.510, Fla. Stat to impose conditions for funding on
the Recipient in order to ensure that the project complies with the requirements for the use ofFlorida
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
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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:
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;
C. any sales contract or option to buy or sell things attached to theproject Siteto
be severed from the Project Site with a non - governmental person or
organization,
d. any use of the Project Site by a non- govemmental 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 otherrights and remedies at law or in equity, FCT shall have the right
to seek tem and permanent.injunctions against the Recipient for any disallowable activities on
the Project Site.
DELEGATION_ S 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 IMP. OSED HEREIN ON THE PROJECT SITE AS A RESULT OF UTILIZING
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SR'W'W -AGC -11-
BOND PROCEEDS TO ACQUIRE THE PROJECT SITE ARE FULLY COMPLIED WITH BY
THE CONTRACTING PARTY.
XII. R-ECORDEM E1PING; AUDIT RFQUMMENTS
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
ih a$y wear
101 sue eiPren ecigient- mustt -ave-a State single or
project- specific audit for such fiscal yearin accordance with Section215.97, 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 lassistance is expended should be based onwhen 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 ifthe 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).
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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
_ _ _ on a Commuiiitie�Srust:
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
11 l West Madison Street
Tallahassee, Florida 32302 -1450
5. Ifthe audit shows that any portion of the funds disbursed hereunder werenot 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 aperiod 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.
XIH- DEFAULT; RlJAUDIES; T'FRMINATION
1. If the necessary funds are not available to fund this Agreement as aresult 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
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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:
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, orifthe 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
thereunder; 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
-- — — — rme unng e erm o s 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 (3 0)
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. Continence an appropriate legal or equitable action to enforce performance of
this Agreement;
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. ofnon- compliance or lack ofperformance or issuing a written
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- GC :..... -14-
warning to advise that more serious measures maybe taken if the situation is
not corrected; or
e. Exercise any other rights orremedies which may be otherwise available under
law, including, but not limited to, those described in paragraph IX3.
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, F1a.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
ion - unn Y rc ase 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 funds by providing the Recipient with thirty (3 0) calendar days prior written notice.
5. The Recipient mayrequest termination ofthis 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.
XIV. LEGAL AUTHORIZATION
1. The Recipient certifies with respect to this Agreement that it possesses the legal
authority to receive funds to beprovided 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. Ile Recipient also certifies that the undersigned
possesses the authority to-legally execute and bind the Recipient to the terms of this Agreement,
XV. STANDARD G®NDITmONS
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
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Aprn715, 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 subunit 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
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 finds or other resources received from.FCT in connection with this Agreement
maybe 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
ATTEST.
Sally A. Mai`, MMC - City Clerk
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Apr.0 15, 2009
SMWW - cc -.16-
CITY
ST-4N
FLORIDA S TRUST
By:
By:
P t
Al Miamer
Ken Reecy
Title:
city Manager - —
Communi Program Manager
Date:
L pq
Dater ? -+F�(
Approve
t rm d L ality:
Approve as to orm and Legality:
BY
By:
Print N
e: Robert A. Ginsburg
Kristen L. Coons, Trust Counsel
ATTEST.
Sally A. Mai`, MMC - City Clerk
08- 003 -WVwl
Apr.0 15, 2009
SMWW - cc -.16-
Contract No: Fg ,41_1JW$
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
Dxaiect Sit in appikation 09- 00 Wa8=se1eete"Pfimdmg=m
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(1)(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 Agreemient. 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.
l
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-4/1-54009 .. .
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
22/2009
Recipient Board Member, Signature
Staff or Agent Name
Mayor Richard H. Gillmor
Vice Mayor Jim Hill
Council Member Andrea Coy
Council Member Dale Sim hick
Council Member Eugene Wolff
Al Mintier, City Manager
Rebecca Grohall, Growth Mgmt. Dir.
Sally -A. Maio, City Clerk
Date: 1,2 ql oq .
Approv as to form and legality:
By: Robert A. Ginsburg
Title: City Attorney
ATTEST
a-)w
Sally A. )~tai , MMC - City Clerk
2
08- 003 -WW_ 1
4/1512009
FLORIDA CON AUNITIES TRUST
By:
Ken Reecy
Community Program Manager
Date: 5.1 01
Approved as to form and-legality:
By. Kristen. L. Coons
Title: Trust Counsel