HomeMy WebLinkAboutExhibit 1TEMPORARY USE AGREEMENT
This Temporary Use Agreement is entered into this day of , 20 , by and
between the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (hereinafter
referred to as the "Board") and the City of Miami (hereinafter referred to as the "Applicant").
RECITALS:
A. The Applicant desires to enter into this Temporary Use Agreement for the submerged lands
(hereinafter referred to as "lands") and water column adjacent to the Applicant's upland real property
located at Section 37, Township 54 South, Range 41 East, at 236 S.W. North River Drive, Miami, Miami -
Dade County, Florida.
B. An eight -slip commercial fishing vessel mooring facility has been utilized on these lands adjacent
to Applicant's upland real property without the Board's approval or authorization.
C. Applicant desires to obtain the consent of the Board to maintain and use the preempted area located
on these lands.
D. The parties acknowledge that the application, approval and issuance of a sovereignty submerged
lands lease may require a time period of several months.
E, The Applicant desires to have the temporary use of the preempted area located on these lands
during the processing and review of the Applicant's sovereignty submerged lands lease application.
NOW, THEREFORE, for and in consideration of the mutual agreements and covenants set forth herein, the
Applicant agrees to pay to the Board a total of $32,814,80 for deposit into the Internal Improvement Trust
Fund as compensation for the past and current use of these lands without the approval or authorization of
the Board. Such payment, which shall be in the form of a cashier's check, certified check or money order
payable to the Florida Department of Environmental Protection / Board of Trustees of the Internal
Improvement Trust Fund has been delivered along with this signed Temporary Use Agreement. The parties
-hereto; then,, agree -or follows:--
1. The Applicant acknowledges and understands that the grant of this Temporary Use
Agreement and the payment of the amount herein does not guarantee that the Board will grant the
Applicant a lease or that the Department of Environmental Protection will recommend that a lease
be granted.
2. The Applicant is hereby granted the temporary exclusive use of the preempted area located on
these lands as depicted in Exhibit "A", consisting of approximately 7,273.4 square feet, waterward of
Applicant's upland real property described above. This temporary exclusive use is for a term of one year
from the date of this Agreement or until the date of execution of a sovereignty submerged lands lease
between the Board and the Applicant, whichever occurs first. The Applicant shall make no claim of title to
or interest in the submerged lands identified in Exhibit "A" solely by reason of occupancy or use thereof
under this Temporary Use Agreement.
4.14
Revised 07/08/2004
Grantee: City of Miami
TUA No.: 130337926
Page 2 of 5
3. The existing preempted area can only be utilized as they were on the date of execution of this
Temporary Use Agreement, which was as an eight -slip commercial fishing vessel mooring facility. In the
event any part of any of these preempted area is determined by a final adjudication issued by a court of
competent jurisdiction to encroach or interfere with riparian rights of the adjacent upland riparian owner,
Applicant agrees to either obtain written consent for the offending use from the affected adjacent upland
riparian owner or remove the interference or encroachment within 60 days from the date of the
adjudication. Failure to comply with this paragraph shall constitute a material breach of this Agreement
and be grounds for immediate termination of this Agreement at the sole option of the Board.
4. The consideration paid for this Agreement includes the lease fees due for these lands from
September 30. 1984 through September 30, 2007. This consideration is not refundable, notwithstanding
the denial of a sovereignty submerged lands lease by the Board, ,
5. In the event that a sovereignty submerged lands lease application is not approved by the Board and
executed by both parties prior to the expiration or sooner termination of this Agreement, and either the
Applicant fails to timely submit the information concerning title as required herein, or the Board denies the
Applicant's claim of title and the Applicant has not commenced an action to quiet title as specified herein,
the Applicant shall remove all uses referenced herein from the sovereignty submerged lands at the
Applicant's sole expense. The complete removal of the uses shall be accomplished within 180 days
following the expiration or termination of this Agreement, whichever occurs first.
6. If the Applicant asserts title to the submerged lands identified in Exhibit "A", the Applicant must
submit an application, accompanied by all evidence upon which Applicant relies for the assertion of title, to
the Division of State Lands ("DSL"), Department of Environmental Protection, within 90 days after the
execution of this Agreement. DSL will review the application and accompanying evidence and give a
response to Applicant as to whether the Board will assert title to the submerged lands described in Exhibit
"A". If DSL responds that the Board will assert title to said submerged lands, the Applicant must file an
Appropriate action in circuit court within 90 days of DSL's response to obtain a legal determination of title
to the submerged lands. If DSL, after consultation with the Board, responds that the Board does not assert
title to the submerged lands, then the Applicant shall not have to apply for a submerged lands lease, and
that portion of the consideration representing lease fees and interest shall be refunded. If DSL, after it's
review, responds that the Board does not assert title to a portion of the submerged lands any consideration
for that portion representing lease fees and interest will be refunded.
Failure to submit the initial application and evidence within 90 days after execution of this Agreement, or
failure to file the appropriate court action within 90 days after DSL's response, shall constitute a waiver by
the Applicant of all of its claim of title to the submerged lands and an acknowledgment that the Board owns
the sovereign submerged lands.
7. Applicant shall make initial application for a sovereign submerged lands lease to the Board within
30 days of the execution of this Agreement and complete the application by no later than 180 days of the
execution of this Agreement for the lands identified in Exhibit "A".
8. Immediately following execution of this Agreement, Applicant shall record this Agreement and
send a copy of the recorded Agreement to Florida Department of Environmental Protection, Southeast
District, 400 N. Congress Avenue, Suite 400, West Palm Beach, Florida 33401, Attention Donald H. Keim
within 30 days of recording.
Revised 07/08/2004
Grantee: City of Miami
TUA No.: 130337926
Page 3 of 5
9. This Agreement is temporary in nature and may not be extended or modified except upon the
express written agreement of the Board. No request for an extension of the Agreement shall be considered
by the Board except upon a demonstration by the Applicant that the Applicant is in full compliance with
the terms and conditions of this Agreement and has exercised due diligence in its efforts to procure a
sovereignty submerged lands lease from the Board.
10. As a material condition of this Agreement, Applicant agrees to comply with all of the
requirements of Chapters 253, 258, and 376, Florida Statutes, and the rules promulgated pursuant thereto.
The Board has the right to immediately rescind this Agreement upon the failure of Applicant to comply
with either the terms of this Agreement, the aforementioned Consent Order, statutes, rules, or any permits
or exemptions. The Board has the right to immediately rescind this Agreement upon the failure of
Applicant to comply with either the terms of this Agreement, statutes, or regulations. Upon written notice
that the Board has exercised its right to rescind under this paragraph, Applicant shall cease and desist all
activity authorized by this Agreement within the timeframe specified in the notice, or within twenty days of
receipt of the notice if no timeframe is specified. Notice may be given by the Board by certified mail or
hand delivery to the Applicant or by posting the notice at the property described in Exhibit "A".
11. To the extent allowed by Article 10, Section 13, Florida Constitution and Chapter 768.28, Florida
Statutes, the Applicant shall save and hold harmless and indemnify the Board, Department of
Environmental Protection, and the State of Florida against any and all liability, claims, judgments or costs
of whatsoever kind and nature for injury to, or death of, any person or persons and for loss or damage to
any property arising out of or connected with Applicant's occupation and use of these lands and the
preempted area or activities located thereon. By execution of this Agreement, applicant waives any claim it
may have against the Department of Environmental Protection concerning the submerged lands described
on Exhibit "A".
12. Applicant agrees that any litigation arising from matters relating to this Agreement between the
Board and the Applicant shall be initiated and maintained only in Leon County, Florida, unless the Board
agrees to venue in Miami -Dade County, Florida.
13. This Agreement, and any rights and privileges contained herein, are for the sole benefit and use of
the Applicant and shall not be assigned or transferred by the Applicant to any other party without the prior
written consent of the Board, which consent shall not be unreasonably withheld. DEP acknowledges that
the subject lands will be used by the Licensee of the City -owned uplands, subject to the payment of fees
and compliance with the conditions of DEP's Temporary Use Agreement and/or Submerged Land Lease.
14. The terms of this Agreement may be enforced by the Board notwithstanding that the authorization
granted hereunder has expired.
Executed on the date first written above.
Revised 07/08/2004
Grantee: City of Miami
TUA No.: 130337926
Page 4 of 5
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT
TRUST FUND OF THE STATE OF FLORIDA
WITNESSES:
Witness Signature
Printed/Typed Name
Original Signature
Printed/Typed Name
By:
Jack Long
District Director, Southeast District
Department of Environmental Protection, as
agent for and on behalf of the Board of
Trustees of the Internal Improvement Trust
Fund of the State of Florida
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of 2007,
by -Jack -Long, District Director, Southeast District, Department of Environmental Protection, as agent for
and on behalf of the Board of Trustees of the Internal Improvement Trust Find of the State of Florida. He
is personally known to me.
Grantee: City of Miami
Notary Public, State of Florida
Printed, Typed or Stamped Name
- My Commission Expires:
Commission/Serial No.:
By:
City Manager
WITNESSES: Pedro G. Hernandez
Printed/Typed Name
Original Signature Approved as to Insurance:
Printed/Typed Name Lee Ann Brehm, Director, Risk Management'Department
Approved as to Legal Form
Original Signature
Printed/Typed Name Jorge L. Fernandez, City Attorney
Revised 07/08/2004
Grantee:
TUA No.:
Page 5 of 5
STATE OF
City of Miami
130337926
COUNTY OF
The foregoing
by
has produced
Attest:
Priscilla A. Thompson
City Clerk
instrument was acknowledged before me this day of 20
as of a
corporation, on behalf of the corporation. He/She is personally known to me or
as identification.
Notary Public, State of Florida
Printed/Typed or Stamped Name
My Commission Expires:
Commission/Serial No.:
Revised 07/08/2004