FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION AGENCY
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
INST # 97-26~20
SPT 11, 1997~~1:41~_
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Permit No. 522247133, Pine lIas County
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AGREEMENT FOR COVENANT RUNNING WITH LAND
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In consideration of the City of Clearwater's promises contained herein, and the Florida
Department of Environmental Protection ("Department") acceptance of the City of Clearwater's promise
to enter into this agreement as part of the reasonable assurances provided by the City of Clearwater in its
application for the above designated permit, the City of Clearwater and the Department agree as follows:
BACKGROUND
1. The City of Clearwater has submitted to the Department an application for, and the
Department has issued, Permit No. 522247133 (the "permit"), authorizing certain dredging
and filling activities in and adjacent to Allen's Creek, a man altered Class III waterbody,
Section 13, Township 29 South, Range 15 East, near Arcturas Avenue and Cleveland
Streets, Pine lIas County, Clearwater, Florida. The permit expires on August 10, 1998. The
terms and requirements of the permit are incorporated herein by reference.
II. MITIGATION REQUIREMENT AND ENFORCEABILITY
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2. Specific permit conditions require the mitigation activities of the area described in
Paragraph 1, which are located on certain land situated in Pinellas County, in Clearwater,
Florida, and which is more particularly described as follows:
See Attached Legal Description ("Exhibit A ")
As required by Specific Condition Nos. 16, 17, 18, 19,20,21,22,23,24,25,26,27,28 and 29
of the permit, the City of Clearwater 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 expired on August 10, 1998.
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. 27 of the permit have been met. Specific Condition No. 27 provides:
27 The mitigation shall be deemed successful when all the following Success Criteria are met
for each mitigation area:
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I PINELLAS COUNTY FLA.
OFF.REC.BK 9835 PG 1678
a. Planted herbaceous species have achieved a minimum 85% cover.
b. Planted tree species have achieved a minimum 85% survival and a minimum 30%
mean annual growth rate (measured and reported pursuant to Specific Condition
No. 23).
c. Total contribution 10 percent cover by the following wetland species and species nol
listed in 17-301.400, F.A.C. (now 62-340.450, F.A.C.) shall be maintained below
10%:
Altemathera philoxeroides. Androoof!on glomeratus. Eichhomia crass iDes.
Ludwif!ia oeruviana. Panicum reoens. Schinus terebinthifolius. Tvpha spp.,
Eupatorium spp.
d The mitigation area has been inspected by a member of the Departments Waler
Management staff and has been determined to be within the landward extent of
waters of the State pursuant to 17-301, F.A. C. (now 62-340, 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, Submerged Lands and Environmental
Resources Program, 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 detennine whether the criteria are met. Mitigation site may be successful
at different times.
7. Within one hundred twenty (120) days ofreceipt 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 of Clearwater that the mitigation is successful, or, if
the Department fails to notify the City of Clearwater within the time period prescribed by
this Agreement, then the City of Clearwater's mitigation obligation under the tenns of the
permit and this Agreement shall be deemed satisfied.
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I PINELLAS COUNTY FLA.
OFF. REC. BK 9835 ,_:_G_~679
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 of Clearwater 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 of
Clearwater 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 of Clearwater 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 of Clearwater consents that venue for such actions
shall lie exclusively in Pinellas 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 of Clearwater has been unable to
perform successfully the required mitigation based on causes beyond (the City of
Clearwater's) control. Such causes may include, but are not limited to, unusual
climatological and meteorological conditions.
12. The City of Clearwater 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 of Clearwater 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. 29 of the
permit.
V. RECORDATION AND RELEASE
15. Within thirty (30) days from the date of execution of this Agreement, the City of Clearwater
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,
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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 of Clearwater, its successors
and assigns.
IN WIlNESS WHEREOF, the Department and the City of Clearwater set their hand and seal as
follows:
CITY OF CLEARWATER, FLORIDA
Countersigned:
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ichael J. Roberto
City Manager
Dated: gl J-/q 1
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Approved as to form:
Rita Garvey
Mayor-Commissioner
Dated: g/ g/ 97
Attest:
~
ohn Carassas
Assistant City Attorney
. a E. Goudeau
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Dated: g'"- 8"'- 97
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Dated:
FLORIDA DEPARTMENT OF
ENVIRO NT AL P
Richard D. Garrity, Ph. D.
Director of District Mana
Southwest District
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Dated :
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PN~~-042 ISC oJ WEST FLORIDA - PINELLAS
PARCEL ID 12-29-15-00000-340-0300 PROP
EXTENDED LEGAL BLDG
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NW COR LOT 1 BLK 24
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PRESS ENTER TO CONTINUE...
EXHIBIT A Page 1 of 2
COtLTY
07/14/97
APPRAISAL NOTES
PINELLAS COUNTY FLA.
OFF.REC.BK 9835 PG 1681
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EXHIBIT A Page 2 of 2