BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY

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1 8B1 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY PLACEMENT: DEPARTMENTAL PRESET: TITLE: CONSIDERATION OF AN AGREEMENT REGARDING CO-LEASING OF SUBMERGED LANDS AND PUBLIC USE BOAT DOCKAGE AREA AND DINGHY DOCK IN PORT SALERNO WITH CASA PISCES, LLC (CASA) AND RED SKY, INC. (RED) AGENDA ITEM DATES: MEETING DATE: 4/25/2017 COMPLETED DATE: 4/13/2017 COUNTY ATTORNEY: 4/3/2017 ASSISTANT COUNTY ADMINISTRATOR: 4/10/2017 REQUESTED BY: DEPARTMENT: PREPARED BY: Name: Don Donaldson, P.E., Engineering Department Director Name: Casa Pisces and Red Sky, Property Owners Procedures: None EXECUTIVE SUMMARY: Engineering Carla Segura, Real Property Manager Estimated staff presentation: 15 minutes. Request for approval of a Memorandum of Agreement Concerning Submerged Lands Lease and Public Use Boat Dockage Area and Dinghy Dock (AGREEMENT) between the County, CASA and RED regarding the joint use of submerged lands and public use of boat dockage area and a dinghy dock located in the Manatee Pocket area of Port Salerno APPROVAL: LEG CA 8087a409 1 of 52

2 BACKGROUND/RELATED STRATEGIC GOAL: 1. Agreement drafted by: Martin County 2. Parties: Martin County CASA RED 3. Purpose: Address historic dockage configuration Improve public dockage opportunities 4. New/Renewal/Modified: Replaces expired agreement 5. Duration: Ten year term Renewable consistent with and contingent upon submerged lands lease renewal 6. Benefits to Martin County: Improve public dockage opportunities Limit County liabilities 7. Cost to Martin County: None Following the Manatee Pocket Boardwalk and neighborhood infrastructure improvement projects in 2010, owners of the properties adjacent to the SE Salerno Road right-of-way (ROW) requested that the County enter into an agreement to allow for the historic docking configurations that have existed on their properties for many years. An agreement was crafted that provided for the joint use of the County s riparian rights associated with the ROW in exchange for the public s use of a dinghy dock and three designated boat slips in two separate locations. The agreement was recommended for approval by the Community Redevelopment Agency on June 16, The Board of County Commissioners (BCC) approved the agreement at its December 14, 2010 meeting. The combination of the historical layout of the docks, the layout of the reconfigured docks, addition of the boardwalk, the revised neighborhood infrastructure, location of the three designated boat slips, obligations associated with alcohol licensing and the practices of the prior restaurant lessees caused some operational issues associated with the agreement approved in As a result of those issues, the revised submerged land leases to include the additional County land and add the County as a party were not executed; and the 2010 agreement was not renewed at the end of the initial term. Staff has worked with the owners of CASA and RED as well as the current lessee, All Trust Management, Inc., who is under contract to purchase the properties; to resolve all the operational issues and to protect the County s interest. The operational issues have been addressed and the AGREEMENT is being presented today for consideration. Summary of AGREEMENT The County owns ROW on the Manatee Pocket with associated riparian rights shown as Parcel A on the attached Exhibit A. CASA and RED are owners of adjacent waterfront property with associated riparian rights to Parcels B and C, respectively, on Exhibit A, and as referenced in Sovereign 8087a409 2 of 52

3 Submerged Lands Leases with the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (Exhibits B and C ). The AGREEMENT provides for the following: 1. The parties will become co-lessees on the submerged lands leases in order to perform certain activities within the respective riparian areas. The rent for the submerged lands leases shall be paid by CASA and RED. 2. The County will grant to CASA and RED the use of a portion of riparian rights associated with Parcel A to allow for mooring of boats on docks located within the riparian rights of Parcels B and C. 3. CASA has provided a dinghy dock for use by the public. 4. RED will grant the County, for general use by the public, the use of docking area along the boardwalk/dock adjacent to the 70' CANAL RESERVE area. 5. The County, CASA and RED shall be co-applicants for the associated sovereign submerged lands leases involving waters extending from Parcel A and adjacent property. However, CASA and RED have indemnified the County from any liability in connection with their docks and will carry insurance in the amount of $1,000,000 per claim for bodily injury and property damage and an aggregate amount of $3,000,000 and will name the County as an additional named insured. CASA and RED shall be responsible for the required applications. 6. The public will be provided with increased dockage opportunities with better visibility. 7. The County may install signs on the dinghy dock and the docking area in accordance with its standards. A copy of the Memorandum of Agreement and associated Exhibits will be provided via Supplemental Memo. ISSUES: The Agreement does not constitute a conveyance of riparian rights or title to land, nor as permission to expand the existing docks, any other structures thereon, or to increase or otherwise expand the current use of such property. LEGAL SUFFICIENCY REVIEW: This item has been reviewed for legal sufficiency to determine if it is consistent with applicable law, has identified and addressed legal risks, and has developed strategies for legal defensibility. RECOMMENDED ACTION: 8087a409 3 of 52

4 RECOMMENDATION Move that the Board approve the Memorandum of Agreement Concerning Submerged Lands Lease and Public Use Boat Dockage Area and Dinghy Dock and authorize the co-application by the County, Casa Pisces, LLC and Red Sky, Inc. to become co-lessees on Sovereign Submerged Lands Leases, consent to the assignment of the Memorandum of Agreement and Sovereign Submerged Lands Lease(s) to All Trust Management, Inc., as well as authorize the Chairman to execute any and all documents necessary to complete this transaction subject to final review by the County Attorney s office. ALTERNATIVE RECOMMENDATIONS Deny execution of the Agreement and co-application of the Sovereign Submerged Lands Lease and provide staff with direction. FISCAL IMPACT: RECOMMENDATION None. Funding Source County Funds Non-County Funds Authorization Subtotal Project Total ALTERNATIVE RECOMMENDATIONS None. DOCUMENT(S) REQUIRING ACTION: Budget Transfer / Amendment Chair Letter 1 Contract / Agreement Grant / Application Notice Ordinance Resolution Other: ROUTING: _ ADM _ BLD _ CDD _ COM _ ENG _ FRD _ GMD _ GSD _ ITS _ LIB _ MCA _ MPO _ PRD _ USD X CA _ ACA X LEG 8087a409 4 of 52

5 CO SE VE SE RS HO H ES AV E Site RD VE WY KA LH E SE O RN E L SA C JA SE A ER ED W AY HW Y BI N O O EP INT VE CO SE RD RD RD O AV SO T GE S IE KU E SE D E OR SE G DI X SE ON BERTS SE SL A TE S T E RS F SE Casa Pisces/Red Sky Joint Submerged Lands Agreement SE R O MARTIN COUNTY ENGINEERING DEPARTMENT SURVEY DIVISION REAL PROPERTY # 1629 Dinghy Dock RD Public Dockage SE DI X Ë IE HW Y NOT TO SCALE 2013 AERIAL E X H I B I T O N LY 5 of 52

6 BCC MEETING DATE: April 25, 2017 AGENDA ITEM: 8B1 TO: VIA: FROM: REF: SUBJECT: MARTIN COUNTY, FLORIDA SUPPLEMENTAL MEMORANDUM Honorable Members of the Board DATE: April 17, 2017 of County Commissioners Taryn Kryzda County Administrator Carla Segura Real Property Manager 8087A409 CONSIDERATION OF AN AGREEMENT REGARDING CO-LEASING OF SUBMERGED LANDS AND PUBLIC USE BOAT DOCKAGE AREA AND DINGHY DOCK IN PORT SALERNO WITH CASA PISCES, LLC AND RED SKY, INC. Attached is the Memorandum of Agreement Concerning submerged Lands Lease and Public Use Boat Dockage Area and Dinghy Dock with attached Exhibits. The other party is currently out of the Country, an ed version has been sent to him and he will provide a signed copy upon return. TK/cs Attachment Reviewed by County Attorney s Office Page 1 of 1 eng207m198 SUPPLEMENTAL 6 of 52

7 MEMORANDUM OF AGREEMENT CONCERNING SUBMERGED LANDS LEASE AND PUBLIC USE BOAT DOCKAGE AREA AND DINGHY DOCK THIS AGREEMENT, made this day of, 2017, by and between CASA PISCES, LLC., a Florida Limited Liability Company, its successors and/or assigns, whose mailing address is 4745 SE DeSoto Avenue, Stuart, Florida 34997, hereinafter referred to as CASA PISCES, RED SKY, INC., a Florida Corporation, its successors and/or assigns, whose mailing address is Post Office Box 36, Port Salerno, Florida 34992, hereinafter referred to as RED SKY, and MARTIN COUNTY, a political subdivision of the State of Florida, whose mailing address is 2401 SE Monterey Road, Stuart, Florida 34996, hereinafter referred to as COUNTY. RECITALS: A. For purposes of this Agreement, all references to Parcels A, B, and C shall be as depicted in Exhibit A attached hereto and incorporated herein. B. COUNTY is the fee simple owner of certain waterfront property described as that portion of Salerno Road (St. Lucie Avenue per plat) lying south of and adjacent to Lot 17, Block 68 of the Plat of Port Salerno according to Plat Book 1, Page 132, Public Records of Palm Beach (now Martin) County identified as Parcel A, with associated riparian rights. C. CASA PISCES is the owner of certain waterfront property located at 4745 SE DeSoto Avenue, Stuart, Florida 34997, identified as Parcel B, with associated riparian rights. D. RED SKY is the owner of certain waterfront property located at 4290 SE Salerno Road, Stuart, Florida 34997, identified as Parcel C, with associated riparian rights. E. Sovereign Submerged Lands Lease, Lease No was revised in 2011 to include the riparian rights associated with the North half of Parcel A in addition to the riparian rights associated with Parcel B for a term of February 18, 2011 to April 1, 2021; but was never fully executed, hereinafter referred to as CASA PISCES LEASE attached hereto and incorporated herein as Exhibit B. 1 7 of 52

8 F. Sovereign Submerged Lands Lease, Lease No was revised in 2011 to include the riparian rights associated with the South half of Parcel A in addition to the riparian rights associated with Parcel C for a term of February 15, 2011 to May 25, 2014; but was never fully executed, hereinafter referred to as RED SKY LEASE attached hereto and incorporated herein as Exhibit C. G. CASA PISCES and RED SKY each desire to become co-lessees with the COUNTY on the applicable submerged lands leases in order to perform certain activities within the riparian areas of Parcel A and COUNTY desires to become a co-lessee on each of the applicable submerged lands leases in order to perform certain activities within the riparian areas of Parcel B and Parcel C. TERMS: NOW, THEREFORE, in consideration of the premises and mutual covenants and promises contained herein, the parties do hereby covenant and agree as follows: 1. AGREEMENT. This Agreement sets forth the obligations and conditions precedent for COUNTY to grant to each, CASA PISCES and RED SKY, the use of a portion of riparian rights associated with Parcel A to allow for mooring of boats on docks located primarily within the riparian rights of Parcels B and C; for CASA PISCES to provide to the COUNTY a dinghy dock for use by the public located within the riparian rights of Parcel B for use by the general public; and for RED SKY to provide to the COUNTY the use of a docking area within the Reserve Canal and the riparian rights of Parcel C for use by the general public. No party shall construe this Agreement as a conveyance of riparian rights or title to land, nor as permission to expand the existing docks, any other structures thereon, or to increase or otherwise expand the current use of such property. 2. CASA PISCES AND RED SKY OBLIGATIONS AND CONDITIONS PRECEDENT. The following conditions must be met by CASA PISCES and RED SKY for the COUNTY to perform under this Agreement: A. CASA PISCES shall provide, maintain and replace as necessary, at its sole cost and expense, a public dinghy dock to provide public access to the BOARDWALK as shown in Exhibit D attached hereto and incorporated herein. Such public dinghy dock shall be available 2 8 of 52

9 for public use, free of charge, at all times. The dinghy dock may not be a dockage area required for public use by another governmental agency permit or other rule or regulation. It is the intent of this Agreement to provide additional dockage area for unrestricted public use, limited only by the CASA PISCES LEASE requirements. B. RED SKY shall apply for an updated submerged lands lease for the RED SKY LEASE for a term to run concurrent to this Agreement and the CASA PISCES LEASE. C. RED SKY shall provide public dockage, free of charge, available for public use at all times. Said dockage shall extend from the west property line of Lot 14, of Parcel C, easterly to the east limit of the loading platform, hereinafter referred to as the Dockage Area as shown in Exhibit D. RED SKY will be responsible for the Dockage Area except as set forth in the Public Boardwalk Easement recorded in O.R. Book 2425, Page 1009, of the public records of Martin County, Florida. Notwithstanding the terms set forth in the Public Boardwalk Easement, RED SKY will also be responsible for the daily maintenance and cleanliness of the Dockage Area. Such dockage may not be slips or a dockage area required for public use by another governmental agency permit or other rule or regulation. It is the intent of this Agreement to provide additional dockage area for unrestricted public use, limited only by the RED SKY LEASE requirements. D. Throughout the term of this Agreement, CASA PISCES and RED SKY shall each procure and maintain in full force and effect, at its expense, commercial general liability insurance adequate to protect against liability for any and all damage claims in a minimum amount of One Million Dollars ($1,000,000.00) per claim for bodily injury and property damage and an aggregate amount of Three Million Dollars ($3,000,000.00). Defense costs are in addition to the limit of liability. Coverage shall apply as primary and not contributing to any insurance available to COUNTY. A waiver of subrogation shall be provided in favor of COUNTY. A certificate of insurance evidencing such insurance and listing the COUNTY as an additional named insured shall be provided to the COUNTY within ten (10) days of the date of this 3 9 of 52

10 Agreement and will be provided annually upon renewal of the coverage. Such policy shall be noncancelable with respect to COUNTY except upon thirty (30) days prior written notice to COUNTY, and prior to the effective date of such cancellation, the policy shall be replaced with a policy complying with this Agreement. E. CASA PISCES and RED SKY shall each take out and maintain, during the term of this Agreement, worker s compensation insurance for all its employees employed in connection with the business operated by it on or adjacent to Parcels A, B or C to the extent required by Florida law. Such insurance shall fully comply with the Workers Compensation Law, Chapter 440, Florida Statutes. The workers compensation insurance policy required by this Agreement shall also include Employers Liability. Coverage shall apply as primary and not contributing to any insurance available to COUNTY. A waiver of subrogation shall be provided in favor of COUNTY. CASA PISCES and RED SKY shall within ten (10) days of the date of this Agreement and annually upon renewal of the coverage provide proof to COUNTY of worker s compensation insurance to the extent and in amounts required by law, if applicable. F. CASA PISCES and RED SKY agree that COUNTY 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 CASA PISCES and RED SKY or by any person whosoever may at any time be using or occupying or visiting the property subject to this Agreement and the improvements thereon 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 COUNTY or of any occupant, subtenant, visitor or user of any portion of the property. G. For the sum of Ten ($10.00) Dollars consideration, receipt of which is hereby acknowledged, CASA PISCES and RED SKY shall indemnify COUNTY, its officers, servants, and employees from and against any and all claims, liabilities, judgments, costs and expenses (including reasonable attorney s fees and court costs), loss or damage, directly or indirectly incurred by COUNTY resulting directly or indirectly from the negligent, acts, omissions, errors, 4 10 of 52

11 or collection procedure of CASA PISCES and of RED SKY. Except as provided in the Public Boardwalk Easement, CASA PISCES and RED SKY hereby waive all claims against COUNTY for damages to the improvements that are now or hereinafter placed or built on the property subject to this Agreement or otherwise the property of CASA PISCES and RED SKY in, on or about the premises, and for injuries to persons or property in or about the premises, from any cause arising at any time. CASA PISCES and RED SKY agree to hold COUNTY harmless from and against any and all liabilities, claims, lawsuits, judgments, or similar causes of action, costs and expenses (including reasonable attorney s fees and court costs) for any injuries to persons or property arising out of the activities conducted by CASA PISCES and RED SKY over submerged lands appurtenant to Parcel A, as well as the public use dinghy dock and Dockage Area as depicted in Exhibit D. Further, CASA PISCES and RED SKY agree to defend COUNTY against any and all such claims and suits as described above, at CASA PISCES and RED SKY s sole or joint cost and expense, with no cost and expense to be incurred by the COUNTY. I. The parties recognize that there may be issues in the future concerning riparian rights and riparian lines for the areas identified in Exhibits A, B and C ; and in recognition of such possibility, agree as follows: CASA PISCES and RED SKY shall indemnify COUNTY, its officers, servants, and employees from and against any and all claims, liabilities, judgments, costs and expenses (including reasonable attorney s fees and court costs), loss or damage, directly or indirectly incurred by COUNTY resulting from any existing or future riparian rights dispute which involve the areas identified in Exhibits A, B and C. In addition, CASA PISCES and RED SKY will be solely responsible for all corrective actions which may be required by a final adjudication issued by a court of competent jurisdiction as a result of any riparian rights dispute. J. TAXES; SUBMERGED LAND LEASE RENT. CASA PISCES and RED SKY will each be required to pay one-half of the taxes lawfully levied against the riparian portion of the property described in Parcel A, during the term of this Agreement, if any, as well as all taxes on Parcels B and C, respectively. CASA PISCES and RED SKY shall each be solely responsible 5 11 of 52

12 for all costs associated with its use and occupation of riparian rights depicted in Exhibits B and C, including all rent on submerged lands leases. 3. COUNTY OBLIGATION AND CONDITION PRECEDENT. A. COUNTY will execute the CASA PISCES LEASE attached as Exhibit B. B. COUNTY shall be a co-applicant with RED SKY to update the RED SKY LEASE. C. COUNTY shall have the right to install signage in accordance with its standards on the dinghy dock and the Dockage Area. D. COUNTY will be responsible for the Dockage Area as set forth in the Public Boardwalk Easement recorded in O.R. Book 2425, Page 1009, of the public records of Martin County, Florida. E. COUNTY shall not interfere with the normal maintenance, operation, and management of, or cause any obstruction or interference with access to the docks as depicted in Exhibit D. 4. MUTUAL OBLIGATIONS. All parties shall abide by all applicable local, state, and federal laws, rules and regulations concerning the use of the property as depicted in Exhibits A, B, C and D. 5. DEFAULT. If any party at any time during the term of this Agreement should fail to comply with the obligations required in this Agreement, such failure shall be deemed a default of this Agreement. Failure to remedy such default within thirty (30) days written notice of such default from another party shall provide any non-defaulting party the option, in its sole discretion, of terminating this Agreement by giving the other parties written notice of its election to terminate this Agreement as well as the effective date of such termination. Such notice shall be provided at least ten (10) days prior to the effective date of said termination. 6. TERM. The term of this Agreement shall be ten (10) years to run concurrent with the term of the subject submerged lands leases. Upon expiration of the initial term, the parties may, upon 6 12 of 52

13 mutual written agreement, agree to renew this Agreement consistent with and contingent upon the renewal of the subject submerged lands leases This Agreement shall automatically terminate with the termination or expiration of either or both of the subject submerged lands leases. 7. MISCELLANEOUS. This Agreement embodies the entire agreement of the parties and may not be altered or modified except by an instrument in writing signed by all parties hereto. 8. ASSIGNMENT. This Agreement may not be assigned, sublet, conveyed or transferred in whole or in part without the prior, written consent of COUNTY; provided, however, that such prior, written consent may not be unreasonably withheld. Notwithstanding the foregoing, the parties hereby consent to the assignment by CASA PISCES or RED SKY or both to All Trust Management, Inc., a Florida corporation, at any time during the term of this Agreement. 9. PARTIES BOUND. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 10. CONTROLLING LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. Venue shall be in Martin County for all state court matters, and in the Southern District of Florida for all federal court matters. 11. NOTICES. Any notice shall be deemed duly served if personally served or if mailed by certified mail, return receipt requested, or if sent via overnight courier service or facsimile transmission as follows: If to CASA PISCES, LLC: Casa Pisces, LLC Attention: John Hennessee 4745 SE DeSoto Avenue Stuart, FL Telephone: (772) If to RED SKY, INC Red Sky, Inc. Attention: John Hennessee and Michael Harmon P.O. Box 36 Port Salerno, FL Telephone: (772) of 52

14 If to COUNTY: Martin County Real Property Engineering Department 2401 SE Monterey Road Stuart, FL Telephone: (772) Any party may change the information above by giving written notice of such change as provided in the paragraph. 12. ATTORNEY S FEES AND COSTS. In any claim or controversy arising out of or relating to this Agreement, each party shall bear its own attorney s fees, costs and expenses. 13. BOARD OF COUNTY COMMISSIONERS APPROVAL REQUIRED. This Agreement and any amendment thereto is subject to approval by the Martin County Board of County Commissioners. 14. SPECIAL CLAUSES. Special clauses, if any, are listed in Exhibit F attached hereto and made a part hereof. IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals. EXECTUED by COUNTY this day of, ATTEST Carolyn Timmann, Clerk of the Circuit Court and Comptroller BOARD OF COUNTY COMMISSIONERS MARTIN COUNTY, FLORIDA By: Doug Smith, Chairman APPROVED AS TO FORM ANDLEGAL SUFFICIENCY: Sarah W. Woods, County Attorney 8 14 of 52

15 EXECUTED by CASA PISCES, LLC., this day of, CASA PISCES, LLC., a Florida limited liability company STATE OF FLORIDA COUNTY OF MARTIN By: John Hennessee, Sole Member I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgements, personally appeared John Hennessee, Sole Member of Casa Pisces, LLC., a Florida limited liability company, to me known to be the person described herein and who executed the foregoing and acknowledged before me that he executed same on behalf of the limited liability company. He is [ ] personally known to me or [ ] has produced as identification. WITNESS my hand and official seal in the County and State last aforesaid this day of, (NOTARIAL STAMP) NOTARY PUBLIC Print Name: My Commission Expires: EXECUTED by RED SKY, INC., this day of, RED SKY, INC., a Florida corporation STATE OF FLORIDA COUNTY OF MARTIN By: John Hennessee, Vice President I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgements, personally appeared John Hennessee, Vice President of Red Sky, Inc., a Florida corporation, to me known to be the person described herein and who executed the foregoing and acknowledged before me that he executed same on behalf of the corporation. He is [ ] personally known to me or [ ] has produced as identification. WITNESS my hand and official seal in the County and State last aforesaid this day of, (NOTARIAL STAMP NOTARY PUBLIC Print Name: My Commission Expires: 9 15 of 52

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52 EXHIBIT "D" O EC S VE SE RS HO H ES AV E Site RD VE WY KA LH E SE O RN E L SA C JA SE RA DE FE W AY HW Y BI N O O EP INT VE CO SE RD RD RD O AV SO T GE S IE KU E SE D E OR SE G DI X SE ON BERTS SE SL A TE S T E RS SE Casa Pisces/Red Sky Joint Submerged Lands Agreement SE R O MARTIN COUNTY ENGINEERING DEPARTMENT SURVEY DIVISION REAL PROPERTY # 1629 Dinghy Dock RD Public Dockage SE DI X Ë IE HW Y NOT TO SCALE 2013 AERIAL E X H I B I T O N LY 52 of 52