Cabinet Affairs

AGENDA

BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND

MARCH 9, 1999

Item 1 Sealand Maritime, LTD. (M/V HIND) Settlement Agreement

REQUEST: Consideration of a settlement agreement providing for the payment of $232,784.42 into the Ecosystem Management Trust Fund in exchange for release of claims in the case of IN RE: The Matter of VAPORES DE ULTRAMAR, S.A. and SEALAND MARITIME, LTD., as Owner and Owner Pro Hac Vice of the M/V HIND, for Exoneration from and/or Limitation of Liability, Case Number 98-6847 in the United States District Court for the Southern District of Florida.

COUNTY: Broward

LOCATION: Off Fort Lauderdale beach, near Port Everglades.

STAFF REMARKS: On March 18, 1998, a 365-foot freighter, the HIND, came loose from its anchorage in high winds and dragged anchors through coral and hard bottom habitat until finally grounding approximately 500 feet offshore. The Department of Environmental Protection (DEP) staff responded to the grounding and determined that damage to sovereignty submerged lands had occurred. On behalf of the Board of Trustees, staff entered into negotiations with the vessel owners' representative, who eventually agreed to fund coral salvage and rubble removal by the contractor Search Survey & Recovery, Inc. (SSR), in accordance with a plan approved by DEP coral biologist Walter Jaap of the Florida Marine Research Institute (FMRI). In Mr. Jaap's judgment no additional primary (vs. compensatory) restoration was needed.

In addition to the $100,034 already spent by the vessel owners for primary restoration, staff has also been pursuing a claim of $648,897 for monitoring the restoration, response and assessment costs, and compensatory restoration to make up for interim loss of services pending full recovery of the resources. The vessel owners filed a limitation of liability action in federal court, asserting that the owners' liability should be limited, pursuant to the Limitation Act of 1851, to the value of the vessel and pending freight after the grounding, estimated to be $45,000. Although no case has directly addressed whether actions under section 253.04(1), F.S., are subject to the federal Limitation of Liability Act, a recent Eleventh Circuit decision suggests that state actions which have not been expressly exempted by federal law remain subject to the Limitation of Liability Act. No such express exemption exists with regard to actions under chapter 253, F.S. DEP staff filed a claim and answer in the limitation proceeding, based on section 253.04(1), F.S., and on general maritime law. The possibility exists that damages could be limited to $45,000.

The vessel owners' insurance policy is a "wasting" policy, meaning that all payments on behalf of the vessel owners, including attorney's fees, reduce the policy's coverage limits of $1,000,000. Documentation furnished by the insurance company establishes that $232,784.42 remains. With no evidence that the foreign vessel owner has other assets, and given the uncertainties of the limitation of liability litigation, staff demanded the policy limits in settlement, contingent on approval by the Board of Trustees. The insurance company tendered the policy limits in return for the Board of Trustees' release of all claims. Staff believes that under all of the circumstances this settlement is favorable and should be approved.

(See Attachment 1, Pages 1-12)

RECOMMEND APPROVAL

Board of Trustees

Agenda - March 9, 1999 Page Two

Item 2 Edward J. Ruff Development, Inc. Lease Renewal/Modification/Assignment to Barefoot Boat Club Condominium Association, Inc.

DEFERRED FROM THE FEBRUARY 23, 1999 AGENDA

REQUEST: Consideration of a request to (1) renew an expired five-year sovereignty submerged lands lease for a docking facility used in conjunction with an upland nonresidential condominium and dry storage facility, containing 24,143 square feet, more or less; (2) modify it to a 30-year extended term lease; and (3) assign it to the Barefoot Boat Club Condominium Association, Inc.

COUNTY: Collier

Lease No. 111939239

APPLICANT: Edward J. Ruff Development, Inc.

LOCATION: Section 06, Township 48 South, Range 25 East, in Little Hickory Bay, within the local jurisdiction of Collier County. Aquatic Preserve: No

CONSIDERATION: $3,546.61, representing (1) $2,728.16 as the annual lease fee computed at the base rate of $0.1130 per square foot; and (2) $818.45 as the extended term lease payment calculated at 30 percent of the lease fee, if applicable. Sales tax will be assessed pursuant to section 212.031, F.S., if applicable.

STAFF REMARKS: On October 26, 1993, the Board of Trustees approved the issuance of a five-year submerged lands lease to Tempustech, Inc. for the construction of a six-slip docking facility to be used in conjunction with a proposed upland commercial marina and private club. The upland facilities would include a clubhouse, snack bar, swimming pool, parking and a 90-unit dry storage facility. The six slips would provide temporary mooring for boats launched and retrieved at the site.

Subsequently, on February 14, 1996, the aforesaid lease was modified pursuant to delegation of authority to change the lessee to Edward J. Ruff Development, Inc., who had purchased the uplands from Tempustech, Inc. on October 12, 1995, and to add 18 additional wet slips, thereby creating a 24-slip facility. The lease expired on October 26, 1998. The applicant made this application prior to the expiration of the lease.

On June 11, 1996, the lessee, Edward J. Ruff Development, Inc. ("developer"), filed a declaration of condominium for Barefoot Boat Club, a nonresidential condominium. In the declaration of condominium, the developer submitted the uplands owned by the applicant in fee simple, together with its interest in the sovereignty submerged lands lease, as modified, to condominium ownership under chapter 718, F.S., the Florida Condominium Act (Act). The developer subsequently sold the 18 wet slip condominium "units," for approximately $30,000 each, to individual owners. The six original wet slips are included as "common elements" to be used by the dry slip owners. Under the declaration, the Barefoot Boat Club Condominium Association, Inc. (Association), has the right to "build, maintain and use docks, piers, and other facilities in and over the waters of Little Hickory Bay". Under the Act, leasehold property submitted as nonresidential condominium property must have an unexpired term of 30 years, under section 718.401, F.S. Since the modified submerged lands lease had only a two and one-half year term remaining on its five-year term, the creation of a condominium on the leased portion of the lands appears to be contrary to section 718.401, F.S. To correct this problem, the developer and the Association (still controlled by the developer) request that the Board of Trustees issue a 30-year extended-term lease, and also request that the lease then be assigned to the Association.

Board of Trustees

Agenda - March 9, 1999 Page Three

Item 2, cont.

Several unit owners filed suit against the developer in the circuit court for Collier County. The plaintiffs (several wet slip and dry slip owners) alleged that the condominium was not validly formed since the submerged lands lease was not for a term of 30 years. The applicant's request for a 30-year lease appears to be motivated by the litigation. Granting the request for a 30-year extended term lease would arguably have the effect of ratifying the inclusion of sovereignty submerged land in the declaration of condominium.

On July 28, 1998, the Board of Trustees considered the issue of whether to allow 30-year leases when it considered the rule amendments for extended term leases. The applicant's president and his attorney attended and unsuccessfully argued their position regarding 30-year leases. At that time, the Board of Trustees said that the applicant could come back with its specific request for a term longer than 25 years and that it would be considered.

The submission of a submerged lands lease to condominium ownership, a use not specified in paragraph one of the lease, would be a violation of paragraph seven of the lease (change of use not permitted unless authorized by the Board of Trustees); paragraph eight by making a claim of title to the submerged land; paragraph nine by conveying wet slip units into private ownership (transfer or assignment of lease without written consent of lessor prohibited); and paragraph ten by conveying the upland into condominium ownership and terminating fee simple ownership.

Enforcement has not been taken, since such violations must be corrected before renewal of the lease by the Board of Trustees under section 18-21.008(1)(b)3., F.A.C. Further, a site inspection done on September 11, 1998, showed that certain vessels were using more sovereignty submerged lands than had been leased, also a lease violation. A lease modification of the leased area to resolve that problem is pending in the Department of Environmental Protection's (DEP) South District.

Staff recommends that the request for a 30-year lease be denied because it is contrary to section 18-21.008(2)(a), F.A.C., which allows extended term leases of "up to 25 years." At this time, renewal of the lease should be denied because it would violate section 18-21.008(1)(b)3., F.A.C., which requires the applicant be in compliance with all submerged lands rules and statutes. Assignment should also be denied at this time because it would violate 18-21.008(1)(b)4., F.A.C., involving the same requirements as renewal. There are no exceptions in these rules, and the Board of Trustees declined to extend the lease terms in the rule to 30 years to accommodate such uses as "dockominiums". Staff further recommends that the Board of Trustees deny the request because it is contrary to the public interest and public policy. Staff believes that this would open the door to other private nonresidential dockominiums, which are not a traditional use for which the Board of Trustees has allowed docking facilities to be constructed on sovereignty lands. Such privately-owned facilities do not provide public access to public waters; would further limit the already limited public usage of sovereignty submerged lands near the shore; and would increase impacts on natural resources. Further, conveying sovereignty submerged lands into private condominium ownership is contrary to the public interest and arguably in violation of Article X, section 11, Florida Constitution.

Additionally, section 718.401, F.S., provides that if the rent under the lease is payable by the condominium association or the unit owners, the lease must include certain specific provisions as set forth in the statutes. This would mean that the standard submerged lands lease would have to be revised to conform to the statutory requirements, some of which are likely to be unacceptable to the Board of Trustees. For example, subsection (d) contains detailed provisions governing actions by the lessor (Board of Trustees) for non-payment of rent or other breaches of the lease, including authorization for payment of rent by the lessee into the registry of the court, and requiring that the lessor must post a bond or other security as a condition for Board of Trustees

Agenda - March 9, 1999 Page Four

Item 2, cont.

the release of funds from the court registry. If the lessor attempts to file liens for non-payment of rent or foreclose such liens in violation of this subsection, then the lessor may be liable for damages plus attorney's fees and costs to the unit owners or the condominium association. As a matter of public policy, this is not recommended as it favors the private owner and increases expenses to and restrains use by the public of its own lands.

It appears that a condominium association can enter into leases pursuant to section 718.114, F.S., without converting the leasehold interest into "condominium property" subject to the 30-year lease requirement of section 718.401, F.S. If a condominium association lease under section 718.114, F.S., does not subject the leased property "to condominium ownership," the assignment to the association of a future five-year sovereignty submerged lands lease, after the other ownership and lease issues are addressed, would aid in resolving this matter.

Staff accordingly recommends denial of the request for a 30-year extended term lease. Staff further recommends denial of any assignment at this time. Other than the condominium requirements cited above, the applicant has not shown any "unique operational constraints" under 18-21.008(2)(a)3, F.A.C., which is the test to justify an extended term lease of up to 25 years, not 30 years. In view of the apparent lease violations, staff recommends denial of any lease renewal at this time and, instead, issuance of a temporary use agreement for one year, with the following special conditions: (1) the applicant shall come into full compliance with the lease; (2) the applicant shall eliminate sovereignty submerged lands from condominium ownership; (3) the applicant shall not be fined if it proceeds to correct all lease violations and condominium issues within one year; and (4) if the applicant performs all conditions of the TUA, and is in compliance with all rules and statutes governing submerged lands, a standard five-year lease shall be issued by staff, in which the assignment shall be made. The DEP South District shall stop processing the modification of the lease area until these issues are resolved, and shall not resume such processing until a five-year lease is fully executed and delivered.

A consideration of the status of the local government comprehensive plan was not made for this item. The DEP has determined that the request for an extended lease term for this facility is not subject to the local government planning process.

(See Attachment 7, Pages 1-10, submitted with the February 23, 1999 Agenda)

RECOMMEND (1) DENIAL OF THE 30-YEAR EXTENDED TERM LEASE; (2) DENIAL OF THE LEASE ASSIGNMENT; (3) ISSUANCE OF A TEMPORARY USE AGREEMENT FOR ONE YEAR WITH SPECIAL CONDITIONS; AND (4) ISSUANCE OF A FIVE-YEAR LEASE WHEN ALL CONDITIONS ARE MET.

Item 3 Yachting Promotions, Incorporated Recommended Consolidated Intent

REQUEST: Consideration of (1) an application for a five-year special event sovereignty submerged lands lease containing 435,045 square feet, more or less, for a temporary annual boat show; and (2) a request to waive an administrative fine.

COUNTY: Palm Beach County

Application No. 50-0137959-001

APPLICANT: Yachting Promotions, Incorporated

Palm Beach Boat Show

Board of Trustees

Agenda - March 9, 1999 Page Five

Item 3, cont.

LOCATION: Section 22, Township 43 South, Range 43 East, in the Lake Worth Lagoon, Class III Waters, year round Slow Speed Manatee Area, within the local jurisdiction of the City of West Palm Beach.

Aquatic Preserve: No

Outstanding Florida Waters: No

CONSIDERATION: $14,232.70, representing (1) $5,120.84 as the initial prorated base fee computed at the base rate of $0.1130 per square foot, and including the initial 25 percent surcharge payment calculated on the prorated base fee; (2) $4,111.86 as the prorated lease fees in arrears, with interest, for 1997 and 1998; and (3) $5,000.00 as administrative fines for 1997 and 1998. A certification shall be submitted to the Department of Environmental Protection (DEP) within 30 days from the closing date of the show itemizing the gross rental income generated over sovereignty submerged lands, including the actual income collected from the rental or use of sovereignty submerged lands and any ancillary user charges. If five percent of this amount is greater than the initial payment, lease fees will be adjusted as necessary and the lessee shall submit the difference. Sales tax will be assessed pursuant to 212.031, F.S., if applicable.

STAFF REMARKS: The Board of Trustees authorized a rule amendment on September 14, 1995, to "link" the two processes of regulatory and proprietary reviews and authorizations. The rule became effective October 12, 1995. As a result of this linkage, the recommended DEP regulatory permit decision and the recommendation to the Board of Trustees on the proprietary authorization are contained in one document, the "Consolidated Notice of Intent to Issue," which is attached. The attached consolidated intent contains a recommendation for issuance of a permit under Part IV of chapter 373, F.S., and a recommendation for granting authorization to use sovereignty submerged lands under chapters 253 and 258, F.S., for the activity described therein. This recommendation is provided to the Board of Trustees pursuant to section 373.427(2), F.S. A description of the requested activity is provided in Section I, "Description of the Proposed Activity." The specific basis for recommending approval of the authorization to use sovereignty submerged lands is contained in Section III, "Background/Basis for Issuance."

Approval by the Board of Trustees is requested only for those aspects of the activity which require authorization to use sovereignty submerged lands. If the Board of Trustees approves the request to use sovereignty submerged lands, and the activity also qualifies for an environmental resource permit, and no challenges are successful, the Consolidated Notice of Intent will be issued and will contain general and specific conditions. In the event the Board of Trustees denies the use of sovereignty submerged lands, whether or not the activity otherwise qualifies for a environmental resource permit, the DEP will issue a "Consolidated Notice of Denial" for both the environmental resource permit and the authorization to use sovereignty submerged lands.

The applicant proposes to construct a 922,707 square-foot (21 acres) temporary commercial docking facility to be used for the Palm Beach Boat Show. The proposed lease area is 435,045 square feet (9.9 acres) and is located immediately waterward of an area owned by the City of West Palm Beach (City), under Board of Trustees' Deeds (numbers 22754 and 23049). A portion of this special event boat show will take place within the City's 487,662 square-foot (11.1 acres) deeded area, and the remaining portion of the show will be within the proposed lease area. The temporary docks will be utilized as a centralized sales center for public display of vessels by various brokers. The applicant proposes to construct the facility, run the sales operation for three days, and dismantle the facility within a 25-day timeframe. The applicant has committed to financial assurance for the removal of the temporary structures in accordance with section 18-21.0082(2)(b), F.A.C. There will be approximately 600 vessels displayed at the boat show, ranging from 16 feet to 125 feet in length. The boat brokers and exhibitors will Board of Trustees

Agenda - March 9, 1999 Page Six

Item 3, cont.

lease mooring space from the applicant. The applicant is required to report the gross rental income collected from the special event to the Division of State Lands as part of the annual certification required for their lease, pursuant to section 18-21.011(1)(d)3, F.A.C.

Historically, boat show structures were constructed completely within the deeded areas, owned by the City, adjacent to South Flagler Drive. In early March 1998, a newspaper article promoting the upcoming March 1998 Palm Beach Boat Show, with an aerial photo of the 1997 show, led staff to review the regulatory permit file. Staff requested a meeting with the applicant on March 10, 1998, to discuss the DEP's concerns that the show appeared to have expanded beyond the scope of the regulatory permit issued on March 28, 1995. The applicant met with DEP staff on March 11, 1998, and acknowledged that the show exceeded the boundaries of the approved regulatory permit. Staff further expressed concerns that the newly expanded areas of the show may have encroached on sovereignty submerged lands. The applicant stated that he believed the show was within the boundaries of the lands deeded to the City from the Board of Trustees. The applicant inquired about modifying the wetland resource permit and staff agreed that a modification of the permit was needed, but time did not allow for both the regulatory or any proprietary reviews needed to have accomplished these approvals.

The applicant was informed that the DEP would pursue the regulatory permit violation of 1997 and any deviation from the permit for the upcoming March 1998 show. The applicant was also informed that if the show encroached on sovereignty submerged lands, that lease fees in arrears, with interest, and administrative fines [pursuant to section 18-21.011(1)(b)9, F.A.C., and Board of Trustees' policy on administrative fines of August 14, 1990, and amended on June 2, 1992] would be assessed and that a sovereignty submerged lands lease would be required for future shows. The applicant stated he would submit a complete survey of the docks with a survey of areas deeded to the City after the 1998 show. The legal survey was submitted to the DEP on August 24, 1998. During the March 20-23, 1997, and March 26-29, 1998 boat shows, the applicant exceeded those deeded boundaries and placed structures in and over 200,100 square feet of sovereignty submerged lands. On December 14, 1998, the applicant applied to the DEP for an environmental resource permit and a new Class IV Special Event Lease.

Staff recommends that administrative fines be assessed at this time because the applicant should have understood from past experience that as the boat shows expand, the possibility of encroachment over sovereignty submerged lands increases. The applicant has obtained regulatory permits to construct boat shows over lands deeded to local governments and private individuals. In the past, DEP staff discovered that for three consecutive years, from 1990-1992, the applicant expanded the City of Miami Boat Show. The applicant failed to obtain a permit modification or a proprietary review to determine if the structures had expanded over sovereignty submerged lands. During a review of the 1997 Ft. Lauderdale Boat Show, staff discovered that the applicant operated the boat show on sovereignty submerged lands in 1996 without DEP regulatory or proprietary approval. In 1998, the DEP again discovered and notified the applicant that the Palm Beach Boat Show had expanded its boundaries without regulatory and proprietary approval for the 1997 show. The applicant was told that if the show were to remain with the same size and configuration for 1998, the applicant would be out of compliance with DEP authorizations. Each time the applicant was notified by staff that the shows may have expanded over sovereignty submerged lands and that the applicant may need to apply for a lease. The applicant demonstrates a pattern of not contacting the DEP for necessary modifications and authorizations until discovery of the expansions are made by the DEP. The applicant is willing to pay all lease fees in arrears, with interest, for the previous unauthorized encroachments; however, the applicant has requested a waiver of the administrative fine.

According to the Division of Marine Resources, the proposed project would not significantly affect the endangered manatee so long as the applicant (1) complies with the DEP's standard Board of Trustees

Agenda - March 9, 1999 Page Seven

Item 3, cont.

manatee construction conditions; (2) installs and maintains informational displays; and (3) distributes the "Guide for Boating, Diving and Snorkeling" and the Palm Beach County "Manatee Protection Zone Map" leaflets to individual vessel operators and exhibitors when they first arrive for the show and distributes and maintains copies of the guides and maps to the general public in various areas throughout the show. These items have been included as specific conditions in the environmental resource permit.

The proposed structures will not extend into the 25-foot setback or cross over riparian lines. The DEP environmental resource permit prohibits sewage pumpout facilities, liveaboards, and fueling facilities. The recommendations of the Division of Marine Resources have been addressed in the environmental resource permit conditions as well as the protection of seagrasses.

Noticing of property owners within a 500-foot radius of the project is complete. The applicant was also required to publish a notice of receipt of application by DEP. The notice of receipt of application has been published, the DEP has received the certified copy of the advertisement, and no objections have been received.

A local government comprehensive plan has been adopted for this area, pursuant to section 163.3167, F.S.; however, the Department of Community Affairs (DCA) determined that the plan is not in compliance. In accordance with the Compliance Agreement between DCA and the local government, an amendment has been adopted which brought the plan into compliance. A local license agreement has been received for the proposed action which has therefore been determined to be consistent with the adopted plan.

(See Attachment 3, Pages 1-28)

RECOMMEND (1) APPROVAL SUBJECT TO THE SPECIAL APPROVAL CONDITION AND PAYMENT OF (A) $5,120.84 AS THE PRORATED INITIAL LEASE FEE; AND (B) $4,111.86 AS THE PRORATED LEASE FEES IN ARREARS WITH INTEREST FOR 1997 AND 1998; AND (2) DENIAL OF THE APPLICANT'S REQUEST TO WAIVE THE $5,000 ADMINISTRATIVE FINE.

Item 4 Pan American Construction, L.P. Mining Lease Modification/Bid Requirement Waiver

DEFERRED FROM THE FEBRUARY 23, 1999 AGENDA

REQUEST: Consideration of a request to (1) waive the competitive bid requirements of section 18-2.018(3), F.A.C.; (2) extend the term of that portion of lease number 2429, containing 430 acres, more or less, assigned to Pan American Construction, L.P., for one additional five-year term followed by five succeeding one-year terms; and (3) increase the royalty payments.

COUNTY: Dade

Lease Number 2429

APPLICANT: Pan American Construction, L.P., a Delaware limited partnership

LOCATION: Section 23, Township 53 South, Range 39 East

Board of Trustees

Agenda - March 9, 1999 Page Eight

Item 4, cont.

CONSIDERATION: Minimum annual rental payment of $20,000 to be credited against a royalty of $0.10 per short ton or 5.5 percent of actual sales, whichever is greater, of limerock extracted.

STAFF REMARKS: On April 14, 1970, the Board of Trustees leased 1,000 acres, more or less, to Seminole Rock Products, Inc., (Seminole) for limerock mining. The lease was granted for an initial term of ten years, with two additional 10-year extensions. In return, Seminole agreed to pay $25,000 in rent for each of the first two years of the lease and $40,000 per year thereafter. Under the lease, these rental payments were to be credited annually against royalties of seven cents per short ton or four percent of sales. Mining of the property commenced in 1972.

On June 17, 1974, the Board of Trustees consented to Seminole subleasing its leasehold interest to Vulcan Materials, Inc. (Vulcan). On February 27, 1987, Seminole formally assigned its rights under the lease to Vulcan, which then became the sole lessee.

On May 17, 1996, Vulcan assigned its "Section 22" rights under lease number 2429 to Florida Rock Industries, Inc. (FRI). The $40,000 minimum annual rental payment was divided evenly between the two lessees. On June 12, 1997, the Board of Trustees agreed to extend the lease to FRI for two additional 10-year terms.

On March 18, 1997, Vulcan assigned its remaining rights under lease number 2429 to Pan American Construction L.P. (Pan American). Vulcan assigned to Pan American "that part of Section 23, Township 53 South, Range 39 East, described in the lease except for the West 150 feet of the South 2,260 feet and less the South 660 feet thereof." This assigned area is characterized in the assignment as "Section 23."

Pan American is now requesting that the Board of Trustees amend that portion of lease number 2429 assigned to Pan American by extending the term for one additional five-year term followed by five succeeding one-year terms. The parcel has been substantially mined, but additional time is needed to extract the remaining resources. In consideration for the Board of Trustees' grant of this lease amendment, Pan American has agreed to increase the royalty and payment terms of the lease which have not changed since 1970.

Pan American will continue to guarantee its $20,000 portion of the minimum annual rental payment which will be credited against a royalty of ten cents per short ton (versus the current seven cents per short ton) of limerock extracted, or five and one-half percent of sales (versus the current four percent of sales), whichever is greater. The royalty will be adjusted annually based on the Producer Price Index (PPI) for construction sand, gravel and crushed stone. The upward or downward adjustment of the royalty rate based on changes in the PPI shall not exceed a change of more than five percent compared to the royalty rate for the immediately preceding year. In no event will the royalty be less than ten cents per short ton. Pan American will supply monthly operating reports showing the tonnage extracted from the Section 23 leasehold during the previous month. As soon as royalties exceed the $20,000 guaranteed rental payment, Pan American will furnish the Board of Trustees with monthly royalty payments in accordance with the monthly reports of mined material. Should royalties on actual tonnage extracted on an annual basis by Pan American be worth less than $20,000, no carry forward of rental credit will apply, and under no circumstances will the Board of Trustees return on the lease be less than $20,000 per year.

Pursuant to section 18-2.018(2)(i), F.A.C., the Board of Trustees shall award authorization for uses of state-owned land on the basis of competitive bidding rather than negotiation unless otherwise determined to be in the public interest. Mining has occurred on the site since April Board of Trustees

Agenda - March 9, 1999 Page Nine

Item 4, cont.

1970, and the amount of resources remaining to be extracted is limited. It is unlikely that another company would be willing to incur the costs associated with setting up a new mining operation for such limited resources. The Board of Trustees would also lose revenue during the period of time required to set up a new mining operation. Pan American is already on site and mining and is in a better position than a new lessee to maximize both the short and long term return of economic value to the state. Therefore, staff recommends that the Board of Trustees waive the competitive bidding process.

Pursuant to section 18-2.018(1)(a), F.A.C., the decision to authorize the use of Trustees-owned uplands requires a determination that such use is not contrary to the public interest. Since this request extends an existing use, the Board of Trustees has already made its determination with regard to the probable impacts of the proposed activity on the uplands.

A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S.; however, the Department of Community Affairs (DCA) determined that the plan was not in compliance. A compliance agreement between DCA and the local government has been finalized. The proposed action is consistent with the adopted plan.

(See Attachment 5, Pages 1-15, submitted with the February 23, 1999 Agenda)

RECOMMEND APPROVAL

Item 5 School Board of Lee County Quitclaim Deed

REQUEST: Consideration of a request to issue a quitclaim deed for 25 acres, more or less, to the School Board of Lee County to clear its title.

COUNTY: Lee

Deed No. 30203

APPLICANT: School Board of Lee County

LOCATION: Section 21, Township 46 South, Range 22 East

STAFF REMARKS: On June 22, 1962, the Board of Trustees conveyed 25 acres, more or less, to the Lee County School Board (School Board) for public school purposes. An elementary school was subsequently built on the property. In 1966, in the context of doing a land exchange with the federal government, the Board of Trustees determined that it did not have title to the 25 acres at the time it conveyed the land to the School Board. The land was federally-owned. The Board of Trustees subsequently acquired title as a part of the land exchange with the Federal government.

The School Board, in order to clear its title, has requested that the Board of Trustees issue another quitclaim deed for the 25-acre parcel. The School Board has also requested that the new deed not include language restricting use of the land for school purposes. Staff, however, recommends that the deed restriction remain in the deed in the event the property is ever used for other purposes.

A consideration of the status of the local government comprehensive plan was not made for this item. The Department of Environmental Protection has determined that land conveyances are not subject to the local government planning process.

Board of Trustees

Agenda - March 9, 1999 Page Ten

Item 5, cont.

(See Attachment 5, Pages 1-15)

RECOMMEND APPROVAL

Item 6 Department of Transportation Modification of Restrictions/Easement

REQUEST: Consideration of a request to (1) agree to a Modification of Restrictions to allow the Florida Department of Transportation to improve State Road 600 in Osceola County, Florida; and (2) issue a perpetual non-exclusive easement to the Florida Department of Transportation.

COUNTY: Osceola

APPLICANTS: Department of Environmental Protection, Division of State Lands and Department of Transportation

LOCATION: A portion of Section 32, Township 25 South, Range 28 East

STAFF REMARKS: In 1935, the Board of Trustees of Tufts College in Massachusetts donated 40 acres, more or less, in Osceola County to the State of Florida "(f)or the purpose and on the condition that the said land shall be forever used for park purposes and that the large cypress trees thereon shall be preserved as a heritage to future generations." The land became known as Fletcher Park.

The Department of Transportation (DOT) has submitted a request for a 3.958-acre easement across a portion of Fletcher Park for the purpose of improving State Road 600. Although DOT designed the widening project to avoid as many trees as possible, the project will result in the removal of eleven of the cypress trees. To offset the loss of the trees, DOT has agreed to donate to the Board of Trustees two parcels of land containing 0.723 acres and 4.97 acres, respectively, adjacent to the existing park lands. The donated lands will provide much needed space for a parking area. Osceola County has agreed to lease the original donation, as well as the DOT parcels, for park purposes.

Tufts University has agreed to execute a Modification of Restrictions to allow removal of the eleven trees for the proposed project. The Land Management and Acquisition Advisory Council recommended approval of the easement on February 11, 1999. Its recommendation was subject to DOT agreeing to excavate archaeological sites on the two parcels to be donated to the Board of Trustees.

A consideration of the status of the local government comprehensive plan was not made for this item. The Department of Environmental Protection has determined that the proposed action is not subject to the local government planning process.

(See Attachment 6, Pages 1-58)

RECOMMEND APPROVAL CONDITIONED UPON DOT'S AGREEMENT TO EXCAVATE ARCHAEOLOGICAL SITES ON THE TWO PARCELS TO BE DONATED TO THE BOARD OF TRUSTEES

Board of Trustees

Agenda - March 9, 1999 Page Eleven

Item 7 Suntrust Bank, Southwest Florida Option Agreement/Survey Waiver/Belle Meade CARL Project

REQUEST:  Consideration of (1) an option agreement to acquire 171.5 acres within the Belle Meade CARL project from Suntrust Bank, Southwest Florida; and (2) a request for survey waiver.

COUNTY:  Collier

LOCATION:  Section 23, Township 51 South, Range 27 East

CONSIDERATION: $265,000

APPRAISED BY

REVIEW Dane APPROVED PURCHASE OPTION

NO. PARCEL ACRES (11/28/95) VALUE PRICE DATE

904001 Suntrust 171.5 $308,700 $308,700 $265,000 150 days

Bank/446 after BOT

STAFF REMARKS:  The Belle Meade CARL project is ranked number 2 on the CARL Priority Project List approved by the Board of Trustees on February 10, 1998, and is eligible for purchase under the Division of State Lands' (DSL) Land Acquisition Workplan.  This project contains 26,560 acres, of which 18,105.08 acres have been acquired or are under agreement to be acquired.  After the Board of Trustees approves this agreement, 8,283.42 acres or 31 percent of the project will remain to be acquired.

All mortgages and liens will be satisfied at the time of closing. In the event the commitment for title insurance, to be obtained prior to closing, reveals any other encumbrances which may affect the value of the property or the proposed management of the property, staff will so advise the Board of Trustees prior to closing.

A waiver of the requirement for a survey of this parcel is being requested pursuant to section 18-1.005, F.A.C., because, in the opinion of the Bureau of Survey and Mapping, the cost of the survey would be prohibitive relative to the expected value of the parcel.

While this parcel is being recommended for a waiver of survey at this time, should the title commitment and field inspection reveal a substantive surveying or surveying related issue which impacts the parcel, a certified survey will be provided by the purchaser prior to closing. In the event a full survey is waived, a professional land surveyor will inspect the property for any visible evidence of improvements or potential boundary issues. In cooperation with the managing agency, the DSL will acquire any special purpose survey work necessary for the effective management of this property.

A title insurance policy, environmental site evaluation and, if necessary, an environmental site assessment, will be provided by the purchaser prior to closing. The seller will reimburse the purchaser's title insurance cost.

The cypress swamps and old-growth slash pine flatwoods in the Belle Meade CARL project, extending to the fast-developing suburbs of Naples, are still important for such endangered wildlife as Florida panthers, red-cockaded woodpeckers and Florida black bear. Belle Meade is also the watershed for Rookery Bay. The Belle Meade CARL project will conserve the westernmost large natural area in southwest Florida, protect some of the southernmost populations of several rare animals and help protect the quality of the subtropical estuary of Rookery Bay, while providing a large area for recreation in a natural environment to residents of and visitors to rapidly urbanizing southwest Florida.

Board of Trustees

Agenda - March 9, 1999 Page Twelve

Item 7, cont.

The property will be managed by the Department of Agriculture and Consumer Services, Division of Forestry as part of the Picayune Strand State Forest.

This acquisition is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan.

(See Attachment 7, Pages 1-22)

RECOMMEND APPROVAL

Item 8 TNC Assignment of Option Agreement/Lake Wales Ridge Ecosystem (Henscratch Road/Jack Creek) CARL Project

REQUEST: Consideration of the acceptance of an assignment of an option agreement to acquire 55 acres within the Lake Wales Ridge Ecosystem (Henscratch Road/Jack Creek) CARL project from The Nature Conservancy, Inc.

COUNTY: Highlands

LOCATION: Section 01, Township 36 South, Range 28 East

CONSIDERATION: $158,620 ($154,000 for the acquisition; $4,620 for the purchase of the option agreement)

APPRAISED BY

REVIEW String APPROVED PURCHASE OPTION

NO. PARCEL ACRES (10/06/98) VALUE PRICE DATE

904002 Tubbs 55 $165,000 $165,000 $154,000 150 days after

BOT approval

STAFF REMARKS: The Lake Wales Ridge Ecosystem (Henscratch Road/Jack Creek) CARL project is ranked number 1 on the CARL Mega-Multiparcel Project List approved by the Board of Trustees on February 10, 1998, and is eligible for negotiation under the Division of State Lands' Land Acquisition Workplan. This project is divided into three ranking groups (Priority, Mega-Multiparcel and Less-Than-Fee) which together contain 39,422 acres, of which 1,250 acres have been acquired by the Southwest Florida Water Management District and 15,292.04 acres have been acquired or are under agreement to be acquired by the Board of Trustees. After the Board of Trustees approves this agreement, 22,824.96 acres or 58 percent of the project will remain to be acquired.

Pursuant to a multi-party acquisition agreement entered into between the Division of State Lands and The Nature Conservancy, Inc. (TNC), TNC has acquired an option to purchase this 55-acre parcel from Raymond Leon Tubbs and Lena Ruth Tubbs, his wife. After this acquisition is approved, the Board of Trustees will acquire the option from TNC for $4,620, which represents agreed upon compensation to TNC for overhead associated with acquiring the option. The Board of Trustees may then exercise the option and purchase the property. The assignment of option agreement provides that payment to TNC is contingent upon the Board of Trustees successfully acquiring the property from the owner.

All mortgages and liens will be satisfied at the time of closing.  In the event the commitment for title insurance, to be obtained prior to closing, reveals any other encumbrances which may affect the value of the property or the proposed management of the property staff will so advise the Board of Trustees prior to closing.

Board of Trustees

Agenda - March 9, 1999 Page Thirteen

Item 8, cont.

A title insurance policy, survey, environmental site evaluation and, if necessary, an environmental site assessment will be provided by the purchaser prior to closing.

The high, sandy, Lake Wales Ridge, stretching south from near Orlando almost to Lake Okeechobee, was originally covered with a mosaic of scrub, flatwoods, wetlands, and lakes. The scrub is unique in the world - it is inhabited by many plants and animals found nowhere else - but it has almost completely been converted to citrus groves and housing developments. The Lake Wales Ridge Ecosystem CARL project is designed to protect the best remaining tracts of this scrub and the ecosystems associated with it, thereby preserving several endangered species and allowing the public to see examples of the unique original landscape of the ridge.

The property will be managed by the Florida Game and Fresh Water Fish Commission under a single-use concept as a unit of the Lake Wales Ridge Ecosystem.

This acquisition is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan.

(See Attachment 8, Pages 1-24)

RECOMMEND APPROVAL

Item 9 Walker/Feinberg Purchase Agreements/BOR/FSU

REQUEST: Consideration of two purchase agreements to acquire 1.41 acres for the benefit of the Florida Board of Regents and Florida State University from James A. and Gail Willis Walker; and Merle S. Feinberg and Louis E. Feinberg, Trustees.

COUNTY: Leon

APPLICANT: Florida State University

LOCATION: Section 35, Township 01 North, Range 01 West

CONSIDERATION: $703,600

APPRAISED BY

REVIEW Carlton Griffith APPROVED PURCHASE CLOSING

NO. PARCEL ACRES (05/15/98) (07/10/98) VALUE PRICE DATE

904003 51/Walker 0.92 $573,600 $540,000 $573,600 $568,600 185 days after

BOT approval

(10/02/96)

904004 59/Feinberg 0.49 $150,150 $150,150 $135,000 06/01/99

1.41 $723,750 $703,600

STAFF REMARKS: These acquisitions were negotiated by Florida State University (FSU). Funds for these parcels were appropriated by the 1994-1995 Florida Legislature and are still available.

Improvements on the Walker property consist of a 9,640 square-foot metal warehouse facility. This building is in good condition and will be used by FSU to house the campus printing operations. The Feinberg property is unimproved and the short range plan is to use the parcel for parking. The long range plan is to develop the site for student housing.

Board of Trustees

Agenda - March 9, 1999 Page Fourteen

Item 9, cont.

All mortgages and liens will be satisfied at the time of the closing. In the event the commitments for title insurance, to be obtained prior to closing, reveal any other encumbrances which may affect the value of the properties or the proposed management of the properties, staff will so advise the Board of Trustees prior to closing.

For the Walker parcel, FSU will provide a survey and a title insurance policy. An environmental site assessment will be provided by the seller, prior to closing, with FSU reimbursing the seller's environmental site assessment costs. For the Feinberg parcel, FSU will provide a survey and an environmental site assessment and will reimburse the seller's title insurance costs.

These parcels will be managed by FSU as a part of the existing campus through a lease to the Florida Board of Regents.

These acquisitions are consistent with section 187.201(01), F.S., the Education section of the State Comprehensive Plan.

(See Attachment 9, Pages 1-58)

RECOMMEND APPROVAL

Item 10 Centermall, Inc. Purchase Agreement/Department of Children and Families

REQUEST:  Consideration of a purchase agreement to acquire approximately nine acres by the Department of Children and Families, District Six from Centermall, Inc.

COUNTY:  Hillsborough

APPLICANT: Department of Children and Families, District Six

LOCATION:  Section 24, Township 28 South, Range 18 East

CONSIDERATION:  $3,750,000

APPRAISED BY

REVIEW Ayo Myers APPROVED PURCHASE CLOSING

NO. PARCEL ACRES (01/04/99) (12/31/98) VALUE PRICE DATE

904005 Floriland 9 $3,795,000 $4,500,000 $4,500,000 $3,750,000 60 days

Mall after BOT

approval

STAFF REMARKS: This acquisition was negotiated by the Department of Children and Families, District Six (DCF). Funds for this acquisition are available from a fixed capital outlay appropriation from the 1997-1998 Florida Legislature and are still available.

Improvements on the property consist of a 115,000 square-foot building, asphalt paved parking lot with 459 parking spaces, and 2,925 linear feet of six-foot chain link fencing with four power gates.

All mortgages and liens will be satisfied at the time of closing. In the event the commitment for title insurance, to be obtained prior to closing, reveals any encumbrances which may affect Board of Trustees

Agenda - March 9, 1999 Page Fifteen

Item 10, cont.

the value of the property or the proposed management of the property, staff will so advise the Board of Trustees prior to closing

An environmental site assessment and a survey will be provided by the seller prior to closing.

The property will be managed by the DCF for its District Six Administrative offices.

This acquisition is consistent with section 187.201(18), F.S., the Public Facilities section of the State Comprehensive Plan.

(See Attachment 10, Pages 1-37)

RECOMMEND APPROVAL

Item 11 Miami Tequesta Circle Emergency Archaeological Acquisition

REQUEST:  Consideration of a request to pursue the acquisition of the Miami Tequesta Circle as an emergency archaeological acquisition pursuant to section 253.027(5), F.S.

COUNTY:  Dade

LOCATION:  Section 38, Township 54 South, Range 42 East

STAFF REMARKS: On February 19, 1999, Mayor Penelas of Miami-Dade County (County) submitted an application to the Department of State and the Department of Environmental Protection (DEP) for an emergency archaeological acquisition pursuant to section 253.027, F.S. At its meeting on February 23, 1999, the Board of Trustees heard testimony from local government officials and citizens concerning the recently discovered Tequesta Circle site located at the mouth of the Miami River. Additionally, County officials informed the Board of Trustees that the County has filed an eminent domain suit to acquire the property. As a result of this testimony, the Board of Trustees directed the DEP to place an item on the agenda for its next scheduled meeting and to recommend a plan of action to assist the County in acquiring this archaeological site.

The County has indicated that the cost of acquiring the 2.2-acre site surrounding the Miami Tequesta Circle archaeological site will likely exceed $2 million, which is the amount set aside by section 253.027, F.S., for emergency archaeological acquisitions. In addition, section 253.027(7), F.S., expressly prohibits the state from acquiring property under that section that is the subject of litigation. As indicated, the County has filed an eminent domain proceeding to acquire this property. Consequently, it is the DEP's recommendation that the Board of Trustees direct the Land Acquisition and Management Advisory Council to expeditiously review the Miami Tequesta Circle archaeological site application and determine whether it should be added to the 1999 Conservation and Recreation Lands (CARL) Priority List. If the site is added to the CARL Priority List, the state would not be constrained by the $2 million limit of section 253.027, F.S., but could acquire the property at a value in excess of that amount. While section 253.027(7), F.S., forbids the state from using emergency archaeological funds to acquire an interest in the property while it is subject to litigation, those funds can be used to pay for pre-acquisition costs (such as appraisals) if the property complies with section 253.027(5)(a), F.S. The DEP, in consultation with the Department of State, Division of Historical Resources, has reviewed those provisions and recommends that the Board of Trustees determine Board of Trustees

Agenda - March 9, 1999 Page Sixteen

Item 11, cont.

that the Miami Tequesta Circle archaeological site meets those requirements. If this determination is made, the DEP will begin the process of ordering appraisals and taking other steps necessary for acquisition. In the interim, the County should proceed with its efforts to acquire the property.

(See Attachment 11, Pages 1-16)

RECOMMEND (1) A DETERMINATION THAT THE MIAMI TEQUESTA CIRCLE ARCHAEOLOGICAL SITE COMPLIES WITH SECTION 253.027(5), F.S.; (2) DIRECTION TO THE LAND ACQUISITION AND MANAGEMENT ADVISORY COUNCIL TO EXPEDITIOUSLY REVIEW THE MIAMI TEQUESTA CIRCLE APPLICATION AND DETERMINE WHETHER IT SHOULD BE ADDED TO THE 1999 CARL PRIORITY LIST; AND (3) DIRECTION TO THE DEP TO BEGIN PRE-ACQUISITION ACTIVITIES TO PREPARE FOR ULTIMATE ACQUISITION OF THE PROPERTY.

Item 12 Conservation and Recreation Lands Program Presentation

DEFERRED FROM THE FEBRUARY 23, 1999 AGENDA

REQUEST: A presentation on the Conservation and Recreation Lands (CARL) selection and acquisition process.

LOCATION: Statewide

STAFF REMARKS: At the February 9, 1999 meeting of the Board of Trustees of the Internal Improvement Trust Fund, there was considerable discussion relating to the history of the CARL program, how the Land Acquisition and Management Advisory Council (LAMAC) identifies and prioritizes projects, how the Department of Environmental Protection (DEP) develops its annual acquisition workplan, and how it conducts appraisals, negotiations and closings. The Board of Trustees requested that the DEP prepare an overview of these issues so that it could discuss them at its next meeting. In addition, the DEP would like to suggest several process improvements to the Board of Trustees and highlight several legislative proposals for extending the Preservation 2000 Program.

RECOMMEND DISCUSSION OF ISSUES