1. 10/19/2016 Agreement •
AMY HEAVILIH, CPA
CLERK OF CIRCUIT COURT & COMPTROLLER
_.-,. A MONROE COUNTY,FLORIDA
DATE: November 2, 2016
TO: Roman Gastesi
County Administrator
ATTN: Lindsey Ballard
Executive Aide pp
FROM: Cheryl Robertson Executive Aide to the Clerk of Court& Comptroller C/ —
At the October 19, 2016 Board of County Commissioner's meeting the Board granted approval and
authorized execution of Item LI Approve Memorandum of Agreement between Monroe County and
Florida Department of Environmental Protection(FDEP)establishing a protocol for the County to act as
agent to purchase lands within the State of Florida Forever program boundaries. (To be heard with Q-
11).
The enclosures are not fully executed; they need to be sign by the Florida Department of Environmental
Protection and fonvard to the Clerk for finalization.
500 Whitehead Street Suite 101,PO Box 1980,Key West,FL 33090 Phone:305-295-3130 Fax:305-295-3663
3117 Overseas Highway,Marathon,FL 33050 Phone:305-289-6027 Fax:305-289-6025
88820 Overseas Highway,Plantation Key,FL 33070 Phone:852-7195 Fox:305-852-7146
KEYS
MOA
MEMORANDUM OF AGREEMENT
FLORIDA FOREVER KEYS PROJECTS
MONROE COUNTY
This Memorandum of Agreement ("Agreement") is made and entered into by and between
Monroe County, Florida, a political subdivision of the State of Florida ("County'), and the Board of
Trustees of the Internal Improvement Trust Fund of the State of Florida("Trustees"). The Trustees' agent
in all matters shall be the State of Florida Department of Environmental Protection (' DEP"), Division of
State Lands ("DSL").
WHEREAS, on behalf of the Trustees, DSL is in the process of acquiring property located
within the project boundary for the Florida Keys Ecosystem, Coupon Bight/Key Deer, and North Key
Largo Hammocks Florida Forever Projects in accordance with Chapter 259, Florida Statutes
(collectively referred to herein as the "Projects'): and
WHEREAS, the parties agree that it is in the best interests of the state for County and DSL to
cooperate on certain aspects of the acquisition of these Projects; and
WHEREAS, County has agreed to lake the lead in negotiating the acquisition of some of the
parcels within the Projects, ordering pre-acquisition due diligence products, including but not limited to
appraisals, boundary surveys or sketches, title search products, environmental assessments and the like in
order to facilitate the Trustees' acquisition of the parcels.
NOW, THEREFORE, in consideration of the mutual benefits to County and DSL it is agreed as
follows:
I. Intent of the Parties. The above recitals are true and correct and are incorporated herein
by the reference. The parties intend for this Agreement to serve as an acquisition agreement between them
as authorized and contemplated by Rule 18-1.014, Florida Administrative Code. This Agreement
supersedes any and all prior agreements. arrangements, or delegations between the parties related to the
subject matter described herein.
2. Parcels Covered by this Agreement.This Agreement shall only apply to parcels located
within the Projects and specifically described on Exhibit "A" attached hereto. Exhibit "A" may be
amended from time to time to include additional parcels, delete parcels or reprioritize parcels as needed.
Exhibit"A" shall be deemed a part of the negotiation strategy documenting offers and counteroffers, and
thus treated as confidential and exempt from section 119.07(1), Florida Statutes, as described in
subsection 253.025(9)(d), Florida Statutes. The Projects are ranked on the Florida Forever "A" list and
are eligible for negotiation under the DSL land acquisition work plan as ranked projects.The County shall
obtain written confirmation from DSL regarding the availability of funds prior to entering into a contract
for the acquisition of any parcel under this Agreement or proceed at its own risk. The terms "parcel" or
"parcels" as used herein shall mean and refer to only those parcels described on Exhibit "A", as amended
from time to time.
3. Election of Option by County.
a. Title to Vest in County. County may acquire parcels within the Projects with its
own funds and have title vest in the name of the County. County shall notify DSL of its intent to acquire
parcels within the Projects with County funds prior to initiation of negotiations. To the extent the County
desires to purchase parcels with County funds with title vesting in the County, then County shall be
responsible for acquiring and paying for all pre-acquisition costs and due diligence products, and Trustees
shall have no obligations or costs whatsoever.
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b. Title to Vest in Trustees, If County desires to utilize state funds and have title to
a parcel vest in the name of the Trustees, then County must notify DSL of its intent prior to initiation of
negotiations and follow the requirements and procedures outlined in this Agreement. County and Trustees
will each pay one half or fifty percent(50%) of the purchase price for the parcel,unless, Trustees, in their
absolute discretion determines to increase the percentage of Trustees' purchase price contribution. County
understands at any time DSL may pursue acquisition of parcels within the Projects on behalf of Trustees,
but will coordinate with County to ensure that County and DSL are not negotiating acquisition of the
same parcels. For parcels which County desires to use state funds, DSL will direct County as to whether
County or DSL will take lead on a particular parcel acquisition. including negotiating and acquiring all
necessary pre-acquisition due diligence products for that parcel. The real property interest to be acquired
by Trustees in a parcel may be fee simple absolute or less-than-fee; provided, however, that if a less-than-
fee interest is to he acquired DSL shall have agreed to the form of the acquisition, the property rights to
be acquired and the legal rights and responsibilities to be obtained or assumed, and the specifications for
such less-than-fee acquisition prior to County initiating negotiations for the parcel. If County elects this
option, then undivided fee simple title to each parcel acquired pursuant to this Agreement will vest 100%
in the Trustees.
4. Pre-Acquisition Costs Sharing.
a. Costs Sharing Responsibility. if the County elects to use state funds with title
vesting in the Trustees, and has been directed by DSL to take lead on a parcel acquisition, then County
will initially acquire and pay for all pre-acquisition due diligence products, including but not limited to
appraisals (including timber cruises, if applicable), boundary surveys or sketches, title search products,
environmental assessments and the like and any other studies, inspections to accurately value and
ascertain the actual condition of the parcel ("Pre-Acquisition Costs"), and, subject to the limit set below,
Trustees will reimburse County for fifty percent(50%) of documented Pre-Acquisition Costs at closing
for the parcel, but only those costs for which County receives DSL approval prior to the cost being
incurred (the 'Reimbursed Costs"), DSL may in its absolute discretion, as it deems appropriate for any
reason, increase the percentage reimbursement contribution for a select parcel. DSL's prior approval shall
be in writing and may be in the form of electronic mail. In the event a parcel under contract for purchase
by the Trustees does not close, Trustees will reimburse the County the Reimbursed Costs associated with
that parcel within 90 days of DSL's receipt of notification by County and submission of documentation of
the costs involved. In no event shall Trustees' total reimbursements to County under this Agreement
exceed the aggregate total of$325,000.00.
b. Vendor Selection Generally. If County elects to use state funds with title
vesting in the Trustees, and has been directed by DSL to take lead on a particular parcel, then for each
pre-acquisition due diligence product the County shall select vendors from DSL's pre-approved vendor
list unless otherwise directed by DSL. County shall ensure that all vendors follow all the rules and
requirements of DSL and the Trustees for the preparation of the due diligence products so the products
may be relied upon by DSL and the Trustees.
c. Appraiser Selection. County shall obtain DSL's prior approval for the selection
of appraiser(s). Prior to selecting an appraiser, DSL's Chief Appraiser shall review and approve: (i) any
appraisal instructions to be provided to the proposed appraiser(s); and (ii) the scope of services to he
provided by the selected proposed appraiser.
d. Completed Products. County shall provide a copy of all due diligence products
to DSL within 3 business days after completion.
e. Reimbursement Requirements. At the time County requests the
reimbursement, County shall furnish to DSL satisfactory evidence of payment of the Pre-Acquisition
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Costs and submit to DSL an affidavit signed by legal counsel for the County certifying that all Pre-
Acquisition Costs were actual,reasonable and legally incurred.
f. DSL's Real Estate Broker. County understands and agrees that DSL may
contract by separate agreement with a real estate broker to make offers on behalf of Trustees to acquire
parcels for the Trustees within the Projects for pre-determined amounts, perform document preparation in
conjunction with DSL and title and closing service vendors. and arrange execution of conveyance
documents for select parcels within the Projects.
5. Appraisal Mapping. The parties acknowledge that DSL has provided certain maps for
the Projects. County assumes responsibility for providing at its sole cost all additional appraisal maps
necessary or appropriate for use in preparing appraisals in compliance with the procedures and
requirements set forth in section 253.025, Fla. Stat., and Rule 18-1.006, Ha. Admin. Code. The appraisal
maps shall be reviewed and approved by DSL before County proceeds with appraisals.
6. Appraisals.
a. Generally. County will acquire at its cost such number of appraisals (including
timber cruises as appropriate) as are required under the provisions of section 253.025(8), Fla. Stat., and
Rule 18-1.006, Fla. Admin. Code.
b. Communication Protocol. In order to protect the integrity of the appraisal
process and all of the parties to the proposed acquisition,a Communication Protocol will exist between all
said parties and the selected appraiser(s). This Communication Protocol should be inserted into all
appraisal contracts or appraisal agreements for the project, as follows:
The selected appraiser(s) will be allowed, and encouraged, to communicate with and
receive data from the property owners, their representatives, non-governmental
organizations (NGO's), DSL personnel and other state or county agency personnel
about all things pertaining to the subject property including physical characteristics,
economic characteristics, surveys, inventories, timber data, crop production and
yields, property sales in the area that the appraiser should know about; anything of a
factual basis that the appraiser should know relative to the value of the subject
property, including what the owners believe the property is worth and why. The
appraiser will not be allowed to discuss or communicate with the property owners,
their representatives, non-governmental organizations (NGO's), non DSL appraisal
bureau personnel or other state or county agency personnel anything related to the
appraiser(s) valuation of the subject property including techniques or methods of
appraisal being considered or used, nor any studies, analysis, opinions or conclusions
regarding trends, adjustments or values being considered for or included in the
appraisal report. Any discussions of this nature that the selected appraiser(s) want or
need to have during the appraisal process will only be between the appraiser(s) and
the selected fee reviewer, the Bureau of Appraisal Staff Appraiser assigned to the
project and the DSL Chief Appraiser. Further, report excerpts, sections, partial drafts,
completed drafts or final reports will not be provided to any parties other than the
selected fee reviewer, the Bureau of Appraisal Staff Appraiser assigned to the project
and the DSL Chief Appraiser until the reports become available as public records as
set forth in Chapter 119, F.S. Violation of the Communication Protocol may result in
the appraisal(s) being disqualified for use in the proposed acquisition, and may be
considered a breach of ethical and standards obligations by the alleged offending
appraiser(s).
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c. Review. County shall provide a copy of all appraisals to DSL within three (3)
business days after the County's receipt of completed appraisals. DSL, or its contract review appraiser,
will review appraisals obtained pursuant to this Agreement in accordance with all DSL standards and
requirements. The reports and/or reviews will be forwarded to County as each becomes available for its
use in negotiating the purchase of the parcels. All appraisals prepared pursuant to this Agreement will
comply with the procedures and requirements set forth in Section 253.025(8), F.S. and Section 18-1.006-
007, F.A.C. and DSL's Bureau of Appraisal's Supplemental Appraisal Standards. In addition, an
affidavit from each appraiser shall be submitted prior to DSL's review of the appraisals certifying that the
appraiser has no vested or fiduciary interest in the parcel(s) being appraised. No parcel is eligible for
negotiation and no appraisal eligible for reimbursement as provided for herein unless and until the
appraiser and appraisals reports are approved by DSL.
7. Negotiations. If County elects to utilize state funds and have title vest in the name of the
Trustees, then any negotiations with the owners of the parcels conducted by the County shall be in strict
compliance with this Agreement and in a manner that assures the most favorable price and terms for the
Trustees. The County shall not begin negotiations until an approved negotiation strategy has been
provided by DSL. The County will notify DSL when negotiations begin and terminate, and, at the
conclusion of its involvement with the negotiations for a parcel, the County will provide DSL with a
written summary of all negotiations, including copies of written offers and counteroffers. All contracts or
option agreements must be on DSL forms and approved by DSL, and, unless otherwise specified herein,
must name the Trustees as purchaser. The Trustees' legal name is, "Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida." In negotiating contracts or option agreements in which
the Trustees are named as purchaser, County is advised that the Trustees will not pay any portion of the
documentary stamp tax or ad valorem real property taxes, nor do the Trustees have statutory authority to
enter into indemnity agreements or agree to limit the legal or equitable remedies of the people of the State
of Florida. In undertaking such negotiations,County is acting as a fiduciary for DSL and the Trustees.
8. Limitations on Financial Responsibility. If County elects to utilize state funds and have
title vested in the name of the Trustees, then Trustees' share of the purchase price for each parcel shall not
exceed fifty percent (50%) of the DSL approved purchase price, unless otherwise agreed to by DSL, or
result in a total purchase price contribution from County and Trustees that exceeds the maximum amount
determined by the DSL approved negotiation strategy for the parcel in question (the "DSL Approved
Value"). DSL reserves the right to revise the DSL Approved Value for any reason whatsoever until the
date DSL or the Trustees approve a contract to purchase the parcel, which reasons may include, but are
not limited to, issues raised by completed survey, changes in market conditions, zoning or and/or land
use. Trustees' share of the DSL approved Pre-Acquisition Costs incurred by County in acquiring the
parcel shall not exceed fifty percent(50%) unless otherwise agreed in writing by DSL. Trustees will pay
no part of closing costs required by the contract with the parcel owner to be absorbed by such parcel
owner.
9. Closings. For the closing of any parcel title to which will vest in the Trustees, DSL shall
set the date, time, and place of closing, which may include mail out closings, and County and DSL agree
that DSL will furnish and supervise title and closing services through one of its selected vendors. All
closing documents, including but not limited to closing statements, the seller's title, possession and lien
affidavit certified to DSL and title insurer, and a seller's environmental affidavit, shall all be on DSL
forms provided by DSL. DSL will approve or reject each item required for closing under this Agreement.
10. Confidentiality. Pursuant to Sections 253.02518)W and 253.025(9)(d), F.S. and Chapter
18-I, P.A.C., County, on its behalf and on behalf of its employees and agents, warrants that it shall
maintain the confidentiality of all appraisals, offers, counteroffers and other negotiation matters until an
option agreement is executed, or if no option is executed, two weeks before a contract or agreement for
purchase is considered for approval by the County or Trustees. County may disclose such confidential
information only to authorized personnel who sign a confidentiality agreement. the form of which is made
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part of this Agreement as Exhibit"B". Requests to add authorized personnel must be made in writing, and
County must receive the written consent of DSL. All confidentiality requirements outlined above shall
apply to all individuals added to the list. County understands and agrees that all documents, papers,
letters, maps, and other materials (collectively, "records") specifically relating to the acquisition of any
parcels within the Projects by the Trustees will become public record (as defined in Chapter 119, F.S.)
when an option agreement between the seller and the Trustees is executed, or if no option is executed,two
weeks before a contract or agreement for purchase between the seller and the Trustees is considered for
approval by the Trustees, and at that time all records of the County relating to the acquisition shall
become public record and shall be subject to public review pursuant to the provisions of Chapter 119, F.S.
in the same manner as are other public records. If an option contract or a contract or agreement for the
purchase between the seller and the Trustees for a parcel within the Projects is not consummated, then as
stated in Section 253.025(8)(f), ES., DSL will determine when the passage of time has rendered the
conclusions of value in the appraisal reports invalid and DSL will provide written authorization to County
as to when it may release the appraisal reports. DSL will require as a condition of recommending
approval of a purchase instrument by the Trustees, a certification that the County has maintained the
confidentiality of the appraisals, offers and counteroffers, and other negotiation matters. This certification
shall be in the form of a letter signed by legal counsel for the County. In addition to other remedies
provided by law, this Agreement may be terminated by DSL if the County fails to allow public access to
any such records once they are no longer confidential.
I I. Terms and Conditions of Transfer. If the County initially elected to acquire a parcel
with County funds, and the County secures an option to purchase or agreement to purchase a parcel
within the Projects, County may still offer the Trustees the right to either accept an assignment of the
option or agreement from County or purchase that parcel from County subsequent to County's acquisition
of the parcel. DSL on behalf of Trustees shall have the absolute discretion for any reason or none at all to
decline either an assignment or direct purchase from the County, or to choose whichever of the two
options it deems best. County understands that the Trustees and DSL must follow the requirements set
forth in Section 253.025, F.S., and Chapter 18-I, Florida Administrative Code, in acquiring from County
any right, title, or interest that County acquires and that any such acquisition of a parcel from County
must comply with all applicable laws, rules and policies in effect at the time, and he subject to the
approval of the Trustees. County understands that any acquisition that does not strictly comply with the
terms of this Agreement is conducted at the County's risk and neither Trustees nor DSL are obligated to
close on the parcel or reimburse County for funds expended.
12. Project Management. County or its agent shall, no less than monthly or upon request
by DSL, provide selected project information to DSL for each parcel acquisition covered by this
Agreement. The selected project information and the format for delivery of that information to DSL shall
be determined by DSL to assure consistency with current and proposed DSL data systems development.
13. Legislative Appropriation. The State of Florida's and the Trustees' performance and
obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature.
14. Notice Provision.
To"DSL": To"County":
Division of State Lands Monroe County Administrator
Attention to Division Director 1100 Simonton Street
State of Florida Department of Key West, Florida 33040
Environmental Protection 305.292.4441
3900 Commonwealth Blvd., MS 115
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Tallahassee, FL 32399 Monroe County Attorney
(850)245-2555 1111 12TH Street, Suite 408
Key West, Florida 33040
305.292.3470
15. Amendment. This Agreement may be amended from time to time in writing executed
by both parties.
16. Termination. Notwithstanding any provision to the contrary, this Agreement shall
terminate no later than June 30.2018, unless extended by written amendment between the parties hereto.
Any pre-approved costs incurred by County prior to this date will he reimbursed. Any costs incurred
after the June 30, 2018, will not be reimbursed. Either party may terminate this Agreement by delivering
written notice of its intent to terminate to the other party sixty (60) days prior to the date of termination.
Any pre-approved costs incurred prior to the date of the termination notice will he reimbursed, and any
costs incurred after the date of the termination notice will not he reimbursed.
MONROE COUNTY,FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL
a political subdivision of the IMPROVEMENT TRUST FUND OF THE
State of Florida STATE OF FLORIDA
By: it '.' By -
a ny her 'arruthers Quid A ( ,lark
Printed Name Printed/Typed Name rt "It It'
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APPROVED AS O
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Exhibit "A"
Parcels within the project boundary for the Florida Keys Ecosystem.Coupon Bight/Key Deer, and North
Key Largo Hammocks Florida Forever Projects.
Page 7 of 8
Exhibit "B"
Confidentiality Agreement
The undersigned County staff agree to maintain the confidentiality of appraisal information and
negotiations concerning the parcels identified in the Memorandum of Agreement between County and the
Board of Trustees of the Internal Improvement Trust Fund for those parcels, as required by Section
253.025, F.S., and Chapter 18-I, F.A.C., and by this Confidentiality Agreement.
Date Printed Name Signature
/O/4I6 Bob Shillinger y//�
/o / 41111 C. Rene Rogers j "KO
tl I Charles G. Pattison (4.0.. tat, G.
1 /� ��� ,
�� ���� Murk 1. Rosch • �- 1
I O/Y/il Adele V. Stones .������ P-x w
b 12° (le Christine Hurley
iv iwii i
Mayte Santamana t t
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