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AGREEMENT FOR COVENANT RUNNING WITH LAND " ,,-" ='!" ," !:l> r INST # 97-362531 DEC 15, 1997 3:24PM ~l PINELLAS COUNTY FLA. OFF.REC.BK 9934 PG 1801 This document was prepared by: David M. Young, Environmental Specialist II Florida Department of Environmental Protection SLER Program - Compliance and Enforcement Section Southwest District Office 3804 Coconut Palm Drive Tampa, FL 33619 Permit No. 522127013, Pinellas County / AGREEMENT FOR COVENANT RUNNING WITH LAND In consideration of the City of Clearwater's ("the City") promises contained herein, and the Florida Department of Environmental Protection ("Department") acceptance of the City's promise to enter into this agreement as part of the reasonable assurances provided by the City in its application for the above designated permit, the City and the Department agree as follows: I. BACKGROUND 1, The City has submitted to the Department an application for, and the Department has issued, Permit No. 522127013 (the "permit"), authorizing certain dredging and filling activities in and adjacent to Mullet J.1 RE"COF\p9'fC,k, a natural Class III Waterbody, in Sections 32 and 33, Township 28 South, Range 16 East, West of McMullen ",CC/tJoOi{)B60th Road, south from Enterprise Road to Union Street, Clearwater, Pinellas County. The permit expires on June :;:Y;CleI/23-;1998. The terms and requirements of the permit are incorporated herein by reference. . ,:' :,' ~t.oO '"-- '. '. It.. MITIGATION REQUIREMENT AND ENFORCEABILITY ~-. "',. -,. 2. Specific permit conditions require the mitigation activities of the area described in Paragraph 1, , -$drr "which are located on certain land situated in Pinellas County, in Clearwater, Florida, and which is more particularly r.~[:H;lt20""described as follows: 1.:: i~~:5;' .Q:.::........... A-rr ._-~., ..... .. '-., -> As required by Specific Condition Nos. 17, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31 of the permit, the City C,:r:;:},'[t1",,'Ml'acknowledges and agrees that its obligation to perform the mitigation required by the permit continues until the ~'mitigation is determined to be successful (as described below), notwithstanding that the permit expires on June 23, 1998. ~'?r See Attached Legal Description ("Exhibit A') 3. This Agreement is enforceable as a contract or as an order of the Department. III. DETERMINATION OF SUCCESS OF MITIGATION 4. The required mitigation will be determined to be successful when the requirements of Specific Condition No. 29 of the permit has been met. Specific Condition No. 29 provides: 29. The mitigation shall be deemed successjitl when all the following Success Criteria are met for each mitigation area: a. b. Planted herbaceous species have achieved a minimum 85% cover. Planted tree species have achieved a minimum 85% survival and a minimum 30% mean annual growth rate (measured and reported pursuant to Specific Condition Nos. 24 and 25.) ~rrY CLERK PO. B()X 4748 ".'t ""AR'''''' '1',..... , ";, ,\' :.,,~_r~,,1 "'" .,t ,"~-:i.':':: J,,' j!::~:L'~,~ ._.l~ I~ 3g Sg..o ~~ '7 '~8 t'INi\;(lJ INU &, R~:i:ri m,,~ rOdl'AGE G UARA T'; 'f'~:'i'.';). ...':1 J,. .LJ_L.>_. .... /) 0 . r' ,'"" -;) -() /: 01.__) L'\j'-",/~ ""/v) (.; r .. ...- I PINELLAS -~"_:_~-~5'_'_~~ ~~~:T~G Ff:02 ~ c. Total contribution to percent cover by the following wetland species and species not listed in 17- 301.400, F.A.C., shall be maintained below 10%: SPECIES: Alternathera ohiloxeroides. Androoof!on f!lomeratus. Azolla caroliniana. Baccharis halimifolia. Brachiaria mutica. Casuarina spp., Eichhornia crassioes. Hvdril/a verticil/ata. Ludwif!ia oeruviana. Ludwif!ia octavalis. Ludwif!ia leotocaroa. Melaleuca QuinQuenervia. Mvrica cerifera. Panicum revens. Pistia stratiotes. Ricinus communis. Rubus spp., Salix spp., Salvinia rotundifolia. Schinus terebinthifolius. Tvoha spp., Urena lobata. Vitis spp., and Euoatorium spp. d. The mitigation area has been inspected by a member of the Department's Water Management staff and has been determined to be within the landward extent of waters of the State pursuant to 17- 301, F.A.C. 5. The permittee may notify the Department whenever the permittee believes the mitigation is successful, but in no event earlier than two years after the mitigation is completed. This notice shall be sent by certified mail addressed to. Submer2ed Lands and Environmental Resources Pro2ram. Compliance and Enforcement Section. Southwest District. 3804 Coconut Palm Drive. Tampa. FL 33619. 6. The notification shall include a copy of the most recent Annual Progress and Mitigation Success Report and a narrative describing how the reported data support the contention that each of the mitigation criteria have been met. The permittee shall afford Department personnel the opportunity to schedule and conduct enough on-site inspection of the mitigation site(s) to determine whether the criteria are met. Mitigation site may be successful at different times. 7. Within one hundred twenty (120) days of receipt of this notice, the Department shall notify the Permittee by certified mail that either the Department determined: (A) That the mitigation has been successfully completed; or (B) That the mitigation is not successful, identifying specifically those elements of the mitigation that do not meet the success criteria; or (C) That the mitigation cannot be determined to be successful at this time, identifying specifically those elements of the mitigation that prevent it from determining whether the mitigation is successful. 8. When the Department notifies the City that the mitigation is successful, or, ifthe Department fails to notify the City within the time period prescribed by this Agreement, then the City's mitigation obligation under the terms of the permit and this Agreement shall be deemed satisfied. 9. Department personnel will be permitted to conduct an on-site inspection of the mitigation areas in a reasonable manner and at reasonable times. 10. If the City fails to perform the required mitigation in accordance with the specified conditions of the permit within the time periods set forth in the permit, the Department (1) may inquire as to the status of the mitigation and require the City to take appropriate remedial action, (2) may commence an enforcement action pursuant to Chapter 403, Florida Statutes, (3) may commence legal proceedings to enforce this Agreement, or (4) may extend the time allowed for the required mitigation in accordance with the specific conditions of the permit. In any such action or proceedings to enforce this agreement in which the Department prevails, the City shall be liable for the Department's reasonable attorney's fees, costs and expert witness fees in both trial and appellate courts, and the City consents that venue for such actions shall lie exclusively in Pine lias County, Florida. 11. Notwithstanding any of the above, the mitigation requirements of the permit may be modified by the Department if it determines that the City has been unable to perform successfully the required mitigation based 2 .... .. I fINELLAS COUNTY FLA ___~~~_c_~EC. BK 9934 PG 1803 ;. on causes beyond (the City's) control. Such causes may include, but are not limited to, unusual climatological and meteorological conditions. 12. The City may request that this Agreement be modified for good cause. Good cause may include, but is not limited to, changes in dredging, filling or mitigation plans necessitated by or resulting from actions of federal, state or local governmental agencies. Requests for modification of this agreement shall be in writing and shall be served upon the Department in the same manner as provided in Paragraph No.5 above. The Department shall have sole discretion to grant or deny such requests for modification. 13. The Department may require the City to publish in a newspaper of general circulation in Pinellas County, Florida, notice of any proposed modification of the mitigation requirements set forth in the permit or this Agreement. The text of such notice shall be supplied by the Department and shall be consistent with the provisions of Rule 17-103.150, Florida Administrative Code. IV. REQUIRED AGREEMENT 14. This Agreement constitutes the agreement required by Specific Condition No. 31 of the permit. V. RECORDATION AND RELEASE 15. Within thirty (30) days from the date of execution of this Agreement, the City shall cause this Agreement to be recorded in the public records of each county wherein the affected lands are situated, and shall provide the Department with a copy of the recorded agreement certified by the Clerk of the Court. 16. Upon the satisfaction of the entire mitigation obligation under the terms of the permit and this Agreement, the Department shall execute a release in recordable form. If the Department determines that mitigation has been successful over part of the mitigation area, the Department may, at its discretion, execute a release for those portions which have attained success. 17. This agreement runs with the land and is binding upon the City, its successors and assigns. 3 ~ -' I t PINELLAS COUNTY FLA FF.REC.BR 9934 PG 18,04 IN WITNESS WHEREOF, the Department and the City set their hand and seal as follows: Michael J. Roberto City Manager Dated: / /- / .J - 0/ 7 Dated: Approved as to form: Attest: Dated: /O-7--Q 7 ~~~~C~~ CYuL ~eau .--- .. --tJ' City Clerk Dated: /1-1.,1- 97-- ~ Assistant City Attorney FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ~) Richard D. Garrity, Ph. D. Director of District Management Southwest District Dated: -1'P~Jl-1"J.. 4 . .0.,;.' ) -', \. t . U .s ~ i~ ~ 'F .! .. o .;;" p!8:.!tl ci-..,.c ~1ll)1ll)02 N",:cO'" c .Ill)N . .2......::.-C; .!!m .~.:! ~.~ ..,. :gb.~Ol :Jt'l~ooi (/)0l.;...I' .Ill)..... r . II) .^ Po m ~ .;: v. .., 0..0 . liu(/)z~ .. c . c . . .0 w~ugt'l .. C.Ol <II( i:i~~1IO of :g" ..z o 0'." E-".. a.... .. u "0 _-c C >;. " oco~~ ...J:J~"': -fi ~OON;:U ~. 0 ..... " <II( ".uj~.!..... 00 ,., ...J_. it 01 - _1iilll)mr")N o .E . ,!')..: 0> ~o..bror")c ._t'lVl .c FOOlm~c (5 1ll)0 .. u. it c _'F(/)Z8S : 8 . .b . U Ur") ~O::iibai ~u~~..,.o o=""""zo.: z.g,;;,;; .0...... ~ .. UL -.--~.. _:SOl'..cO o 0........... - - . .so~2;:" Ct...,.....:.! .N _ mOl~~I'iO . &. ,. 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