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Item M7BOARD OF COUNTY COMMISSIONERS C ounty of M onroe A(I Mayor George Neugent, District 2 T he Fl orida Keys 4� �� m Mayor Pro Tem David Rice, District 4 l Danny L. Kolhage, District I „ Y „; ° W Heather Carruthers, District 3 Sylvia J. Murphy, District 5 County Commission Meeting August 16, 2017 Agenda Item Number: M.7 Agenda Item Summary #3263 BULK ITEM: No DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger (305) 292 -3470 N/A AGENDA ITEM WORDING: Approval of a 2017 Memorandum of Agreement between Monroe County and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida concerning Florida Forever projects in the Keys. ITEM BACKGROUND: (Note: This agenda item appears as a discussion item under the Land Authority section of the agenda). Subject to approval by the BOCC, the Division of State Lands has agreed to a revised (2017) Memorandum of Agreement (MOA). The substantive revisions are: 1. the State's share of the purchase price for partnership acquisitions is increased from 50% to 100 %; 2. the rate at which the State will reimburse the County for pre- acquisition costs is increased from 50% to 100 %; and 3. the Confidentiality Agreement portion of the MOA is revised to delete a former County employee and to add 8 current County employees. For partnership acquisitions the revised agreement continues to anticipate assistance from the County (and the Land Authority as the County's agent) for pre- acquisition activities such as contract negotiations, title commitments, appraisals, and surveys. ADVISORY COMMITTEE ACTION: N/A PREVIOUS RELEVANT BOCC ACTION: The Board approved the original MOA on October 19, 2016. CONTRACT /AGREEMENT CHANGES: See above CONTRACT /AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval DOCUMENTATION: Proposed 2017 MOA Existing 2016 MOA FINANCIAL IMPACT: Effective Date: Expiration Date: Total Dollar Value of Contract: Total Cost to County: Current Year Portion: Budgeted: Source of Funds: CPI: Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: Grant: County Match: Insurance Required: Additional Details: If yes, amount: REVIEWED BY: Charles Pattison Completed 08/01/2017 2:26 PM Bob Shillinger Completed 08/01/2017 3:37 PM Budget and Finance Completed 08/01/2017 3:51 PM Maria Slavik Completed 08/01/2017 4:49 PM Kathy Peters Completed 08/01/2017 5:01 PM Board of County Commissioners Pending 08/16/2017 9:00 AM KEYS 2017 MOA 2017 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, the parties entered into a Memorandum of Agreement dated November 21, 2016 (hereinafter "2016 MOA ") which is now superseded by this new Agreement; and WHEREAS, the parties acknowledge their successful partnership in the acquisition of lands within Florida Forever projects in the Florida Keys pursuant to the 2016 MOA; and WHEREAS, the parties also acknowledge the need to retire development rights both inside and outside the Florida Forever projects in the Florida Keys in light of the fact that the number of undeveloped, privately owned parcels in the Florida Keys far exceeds the number of Rate of Growth Ordinance allocations the County is allowed to issue through 2023 pursuant to the Rule 28- 20.140 of the Florida Administrative Code, as adopted by the Governor and Cabinet sitting as the Administration Commission; and WHEREAS, the parties wish to pursue a modified partnership whereby, generally speaking, State funds will be used to acquire those lands within the Florida Forever projects and County funds will be used to acquire those lands outside Florida Forever projects; and 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 take 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. follows: NOW, THEREFORE, in consideration of the mutual benefits to County and DSL it is agreed as 1. 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 Page 1 of 8 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. 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. Trustees will pay one hundred percent (100 %) of the purchase price for the parcel, unless, County, in its absolute discretion determines to contribute funds toward Trustees' purchase price. 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 be 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 one hundred percent (100 %) 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 "). 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 Page 2 of 8 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 be 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 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 Trustee's 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, Fla. 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 Trustee's 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 Page 3 of 8 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). 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. Neeotiations 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 one - hundred percent (100 %) 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 will pay no part of normal seller closing costs required by the contract. 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 Page 4 of 8 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 253.025(8)(f) and 253.025(9)(d), F.S. and Chapter 18 -1, F.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 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), F.S., 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. 11. 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 -1, 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 be 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. Proiect Manaeement 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. Leeislative 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. Page 5 of 8 14. Notice Provision. wllal# 71,17 1100 Simonton Street Key West, Florida 33040 305.292.4441 Monroe County Attorney 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 be 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 tennination. Any pre-approved costs incurred prior to the date of the termination notice will be reimbursed, and any costs incurred after the date of the termination notice will not be reimbursed. MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida By: Printed/Typed Name As its: Title IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA I Page 6 of 8 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 -1, F.A.C., and by this Confidentiality Agreement. Date Printed Name Sienature Bob Shillinger Michael Roberts Charles G. Pattison Mark J. Rosch Adele V. Stones Christine Hurley Mayte Santamaria Elizabeth Bergh Deborah Lofberg Patricia Eables Kevin Wilson Lisa Tennyson Roman Gastesi Emily Schemper Brian Bradley Page 8 of 8 L3 WWWLM" I MONROE COUNTY [no I 1. Intent of the Parties. The above recitals are true and correct and are incorporated herein b- the reference. The yartie intend :reement between them s as authorized and contemplated by Rule 18-1.014, Florida Administrative ode. This Agreement C2 supersedes any and all prior agreements, arrangements, or delegations between the parties related to the subject matter described herein. K�110117zafff 1=4 USMUM. 4. PEg �uisitjon Costs ShaELnj- MMIM., Costs and submit to DSL an affidavit signed by legal counsel for the County certifying that all Pre- Acquisition Cost% 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 docurnents for select parcels within the Projects. 5. Appraisal Mapmim. 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 prepanng appraisals in compliance with the procedures and requirements set forth in section 253.025, Fla. Stat., and Rule 18-1,006, Fla. Admin. Code. The appraisal inaps 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 1�rocess and all of the Tarties to the yroyosed acvuisition., a Communication Protocol will exist between all d parties and the selected appraiser(s). This Communication Protocol should be inserted into all appraisal contracts or appraisal agreements for the project, as follows: UMFIMMI MMML 12. Proiect 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 oft information to DSL shall be determined by DS L to assure consistency with current and proposed DSL data systems development. 13. Legislative Appropriation. The State of Florida's and the m « « »« 2i« « »: »4 £ « »§.;4»: under this Agreement is contingent upon an annual appropriation by the Legislature. 0 14. Notice Provision. Division of State Lands Attention to Division Director State of Florida Department of Environmental Protection 3900 Commonwealth Blvd., NIS I I • fiml 4 »»\< 33 Mriwpivr , , - #, « irnonton Street Key Wst Fl e, o id ra 040 305.292.4441 1 zM3M Tallaha�see, FL 32399 (850) 245-2555 15. Amendment. This Agreement ma he auwndcd from time to time in writing executed by both parties. z e BOAR",' , F TIZUSTEL-S IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA By. Printed/Typed Name I ("1 .9. 1 - re- C- Psi" "3 0' � As its: 0 1 1 Title o D c 6L_c, Gr arcf on beVw1q,,4- 0 0 r I J4, MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida P" Key Largo Hammocks Florida Forever Projects. 03M The under Nigned County %taff agree to maintain the confidentiality of appraisal information and nemotiations concerning. the -parcels Board of Trustees of the Internal Improvement Trust Fund for those parcels, as required by Section 253.025, F.S., and Chapter I& I i F.A.C,, and by this Confidentiality Agreement, Date - I I I I I Bob Shi[linger Rozers, Charles G, Pattison Adele V. Christine Hurfev MFl te Santamaria 03M