Florida Administrative Code › 40 - WATER MANAGEMENT DISTRICTS › 40E - South Florida Water Management District › Chapter 40E-6 - WORKS OR LANDS OF THE DISTRICT › Section 40E-6.381 - Limiting Conditions

Current through Reg. 50, No. 138; July 16, 2024
The District's authorization to utilize lands and other works
				  constitutes a revocable license (including both notice general permits and
				  standard permits). In consideration for receipt of that license, Permittees
				  shall agree to be bound by the following standard limiting conditions, which
				  shall be included within all permits issued pursuant to this chapter:
(1) All structures on District works or lands
				constructed by Permittee shall remain the property of Permittee, who shall be
				solely responsible for ensuring that such structures and other uses remain in
				good and safe condition. Permittees are advised that other federal, state and
				local safety standards may govern the occupancy and use of the District's lands
				and works. The District assumes no duty with regard to ensuring that such uses
				are so maintained and assumes no liability with regard to injuries caused to
				others by any such failure.
(2)
				Permittee solely acknowledges and accepts the duty and all associated
				responsibilities to incorporate safety features, which meet applicable
				engineering practice and accepted industry standards, into the design,
				construction, operation and continued maintenance of the permitted
				facilities/authorized use. This duty shall include, but not be limited to,
				Permittee's consideration of the District's regulation and potential
				fluctuation, without notice, of water levels in canals and works, as well as
				the Permittee's consideration of upgrades and modifications to the permitted
				facilities/authorized use which may be necessary to meet any future changes to
				applicable engineering practice and accepted industry standards. Permittee
				acknowledges that the District's review and issuance of this permit, including,
				but not limited to, any field inspections performed by the District, does not
				in any way consider or ensure that the permitted facilities/authorized use is
				planned, designed, engineered, constructed, or will be operated, maintained or
				modified so as to meet applicable engineering practice and accepted industry
				standards, or otherwise provide any safety protections. Permittee further
				acknowledges that any inquiries, discussions, or representations, whether
				verbal or written, by or with any District staff or representative during the
				permit review and issuance process, including, but not limited to, any field
				inspections, shall not in any way be relied upon by permittee as the District's
				assumption of any duty to incorporate safety features, as set forth above, and
				shall also not be relied upon by Permittee in order to meet Permittee's duty to
				incorporate safety features, as set forth above.
(3) Permittee agrees to abide by all of the
				terms and conditions of this permit, including any representations made on the
				permit application and related documents. This permit shall be subject to the
				requirements of Chapter 373, F.S., and Chapter 40E-6, F.A.C., including all
				subsequent rule and criteria revisions. Permittee agrees to pay all removal and
				restoration costs, investigative costs, court costs and reasonable attorney's
				fees, including appeals, resulting from any action taken by the District to
				obtain compliance with the conditions of the permit or removal of the permitted
				use. If District legal action is taken by staff counsel, "reasonable attorney's
				fees" is understood to mean the fair market value of the services provided,
				based upon what a private attorney would charge.
(4) This permit does not create any vested
				rights, and except for governmental entities and utilities, is revocable at
				will upon reasonable prior written notice. Permittee bears all risk of loss as
				to monies expended in furtherance of the permitted use. Upon revocation, the
				Permittee shall promptly modify, relocate or remove the permitted use and
				properly restore the right of way to the District's satisfaction. In the event
				of failure to so comply within the specified time, the District may remove the
				permitted use and Permittee shall be responsible for all removal and
				restoration costs.
(5) This permit
				does not convey any property rights nor any rights or privileges other than
				those specified herein and this permit shall not, in any way, be construed as
				an abandonment or any other such impairment or disposition of the District's
				property rights. The District approves the permitted use only to the extent of
				its interest in the works of the District. Permittee shall obtain all other
				necessary federal, state, local, special district and private authorizations
				prior to the start of any construction or alteration authorized by the permit.
				Permittee shall comply with any more stringent conditions or provisions which
				may be set forth in other required permits or other authorizations. The
				District, however, assumes no duty to ensure that any such authorizations have
				been obtained or to protect the legal rights of the underlying fee owner, in
				those instances where the District owns less than fee.
(6) Unless specifically prohibited or limited
				by statute, Permittee agrees to indemnify, defend and save the District (which
				used herein includes the District and its past, present and/or future
				employees, agents, representatives, officers and/or Governing Board members and
				any of their successors and assigns) from and against any and all lawsuits,
				actions, claims, demands, losses, expenses, costs, attorneys fees (including
				but not limited to the fair market value of the District's in-house attorneys'
				fees based upon private attorneys' fees/rates), judgments and liabilities which
				arise from or may be related to the ownership, construction, maintenance or
				operation of the permitted use or the possession, utilization, maintenance,
				occupancy or ingress and egress of the District's right of way which arise
				directly or indirectly and are caused in whole or in part by the acts,
				omissions or negligence of the Permittee or of third parties. Permittee agrees
				to provide legal counsel acceptable to the District if requested for the
				defense of any such claims.
(7) The
				District does not waive sovereign immunity in any respect.
(8) The Permittee shall not engage in any
				activity regarding the permitted use which interferes with the construction,
				alteration, maintenance or operation of the works of the District, including:
(a) Discharge of debris or aquatic weeds into
				the works of the District;
(b)
				Causing erosion or shoaling within the works of the District;
(c) Planting trees or shrubs or erecting
				structures which limit or prohibit access by District equipment and vehicles,
				except as may be authorized by the permit. Permittee shall be responsible for
				any costs incurred by the District resulting from any such interference, as set
				forth in paragraphs (a), (b) and (c), above.
(d) Leaving construction or other debris on
				the District's right of way or waterway;
(e) Damaging District berms and
				levees;
(f) The removal of District
				owned spoil material;
(g) Removal
				of or damage to District locks, gates, and fencing;
(h) Opening of District rights of way to
				unauthorized vehicular access; or
(i) Running or allowing livestock on the
				District's right of way.