HomeMy WebLinkAboutSt Johns River Water Management District - Participation AgreementCFN 2018211151 . OR BK 8266 PAGE 238,
Recorded 09/20/2018 at 11 :20 AM, Scott Ellis, Clerk of Courts
Brevard County
It Pgs:12
PARTICIPATION AGREEMENT
This Participation Agreement is entered into this 12th day of Sept. , 2018
("Effective Date"), by the CITY OF CAPE CANAVERAL whose mailing address is Post
Office Box 326 , Cape Canaveral, Florida 32920 (the "City"), and the ST. JOHNS RIVER
WATER MANAGEMENT DISTRICT, a public body existing under Chapter 373, Florida
Statutes (F.S.), whose mailing address is Post Office Box 1429, Palatka, Florida 32178-
1429 (the "District").
The City owns an approximately 7.88-acre undeveloped parcel (the "Property"), as
generally depicted on the attached Exhibit "A". The City intends to develop this property
into a public park, to be known as Long Point Park. As conceptually depicted on Exhibit "A",
the Property is segmented into three areas. Moving from east to west, Segment 1
(approximately 0.82 acres) is designated for future parking and bathroom amenities and
Segment 2 (approximately 4.00 acres) is designated for removal of Brazilian Pepper and
replanting with native vegetation. Segment 2 will be encumbered with a conservation
easement to ensure long term management and protection. The work in Segment 2 is
being undertaken by a private entity to satisfy an Environmental Resource Permit mitigation
requirement. Exhibit "A" conceptually depicts a boardwalk/viewing area that traverses
Segments 2 and 3 for public access to view the Indian River Lagoon. The most westerly
segment, Segment 3 (approximately 3.06 acres), is the subject of this Participation
Agreement.
The District recognizes significant environmental, water resource and conservation
values of the Property. The District specifically recognizes the opportunity to conduct
restoration/enhancement work within Segment 3 of the Property that will address, in part,
the mangrove and essential fish habitat (EFH) mitigation needs associated with the 6-laning
of State Road 528 , from State Road 3 to George King Boulevard at Port Canaveral (the
"Roadway Project"). The District also recognizes the opportunity to partner with the City to
conduct restoration/enhancement work that complements the City's long-term management
objectives for the Property.
The District agrees to provide financial assistance to the City for costs incurred by the
City to restore/enhance Segment 3 of the Property in accordance with specifications and
timeframes specified in the Management Plan attached as Exhibit "B" and in accordance
with the remittance amounts specified in Exhibit "C". The District will use Florida
Department of Transportation (FOOT) mitigation funds to provide the financial assistance
pursuant to section 373.4137, F.S. The funds may only be used for mitigation purposes
related to District and United States Army Corps of Engineers (USACE) permits for the
Roadway Project (FOOT Project numbers 407402-3 and 407402-4.
The City and the District desire to enter into this Participation Agreement to establish
a mechanism for the District to contribute to the costs expended by the City in implementing
the Management Plan described in Exhibit "B". A cost estimate to conduct the
restoration/enhancement work and encumber Segment 3 with a conservation easement is
attached in Exhibit "D".
Accordingly, the City and the District, in consideration of the premises above and the
terms and conditions below agree as follows:
1. TERM: This Agreement commences on the Effective Date.
2. MITIGATION INTENT: The City agrees to comply with the
following mitigation intent for Segment 3 of the Property:
The restoration/enhancement of Segment 3 of the Property is
made possible in part by mitigation funds from the FOOT pursuant
to Section 373.4137, F.S. The City shall manage Segment 3 of the
Property for conservation purposes in perpetuity in accordance
with the Management Plan described in Exhibit "B". Any sale,
transfer, remise, release or other conveyance of ownership of said
land may require modification of the District and USAGE permits
for the Roadway Project and may necessitate that alternative
mitigation be provided. Prior to any proposed voluntary or
involuntary transfer or conveyance of any interest in Segment 3 of
the Property described in Exhibit "A", the City shall notify and
receive written approval from the District. In addition, prior to
amending the approved Management Plan described in Exhibit
"B", the City shall notify and receive written approval from the
District.
3. DELIVERABLES, TIMEFRAMES AND FUNDING:
Deliverables and timeframes to be performed by the City and remittances
to be provided by the District are described in Exhibit "C".
4. ENTIRE AGREEMENT: This Participation Agreement
constitutes the entire agreement of the parties, and there are no
understandings dealing with the subject matter of this Participation
Agreement other than those contained herein . This Participation Agreement
may not be amended except in writing signed by the parties hereto.
5. NON-WAIVER OF REGULATORY POWERS: Nothing
contained in this Participation Agreement shall be construed as a waiver
of or contract with respect to the regulatory and permitting authority of the
District or the City as they now or hereafter exist under applicable laws,
rules and regulations.
6. NON-WAIVER OF SOVEREIGN IMMUNITY: Nothing
contained in this Participation Agreement or in any instruments executed
pursuant to the terms of this Participation Agreement shall be construed
as a waiver or attempted waiver by the District or the City of either entity's
sovereign immunity under the constitution and laws of the State of
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Florida; provided, however, that this paragraph shall not be construed as
an attempt by the District or City to negate any partial waiver of sovereign
immunity made by the Legislature under the provisions of section 768.28,
F.S.
7. GOVERNING LAW: This Participation Agreement shall be
construed and interpreted according to the laws of the State of Florida.
The parties hereto have signed this Participation Agreement to become effective as
of the date and year written above.
Title: ___ C-_i_t_.._y_Cl_e_r_k ____ _
.. . .. . . . .. . ..
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Approved as to form and legality
By Cl egal Counsel:
By-<...,:,c::::__----. ________ _
Print name: -'--'----+~'----"'"-'-'-----
ATTWL ~
William R. Abrams
General Counsel
Date: September 12. 2018
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CITY OF CAPE CANAVERAL
By 0~:t.N~
Print name: David L. Greene
Title: City Manager
Date: August 21, 2018
ST. JOHNS RIVER WATER
MANAGEMENT DISTRICT
~~
Executive Director
Date: September 12, 2018
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c:J Long Point Park Parcel
Activity
Segment 1 -Parking and bathroom amenities
Segment 2. Private entity funded activities
Segment 3 • FOOT Mitigation funded activities
Project: Long Point Park
Exhibit A
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Exhibit "B"
MANAGEMENT PLAN FOR LONG POINT PARK, SEGMENT 3
The Long Point Park property is an undeveloped parcel owned by the City of Cape
Canaveral ("City"). The parcel is located south of Treasure Island Condominiums
and Plaza Condominiums, west of single family homes, north of vacant land owned
by River Gardens Condominium Association , Inc. and adjacent to the Indian River
Lagoon. The parcel encompasses approximately 7.88 acres and is accessed from
the terminus of Long Point Road .
The City will retain the right to operate the approximately 7.88-acre parcel as a
park open to the public in a manner consistent with this Management Plan,
recorded conservation easement and best management practices. Specifically,
the City reserves unto itself, and its successors and assigns, all rights, accruing
from its ownership of the Long Point Park property, including the right to engage
in , permit or invite others to engage in all uses that are not expressly
prohibited/inconsistent with the purpose of the conservation easement that will be
recorded in accordance with the Management Plan provisions. This Management
Plan implements the restoration/enhancement of the westerly property
(approximately 3.06-acres) adjacent to the Indian River Lagoon (Segment 3 of the
Property) to at least partially offset future mitigation needs associated with the
widening of State Road 528. Segment 3 of the Property is depicted in Exhibit "A".
A cost estimate to conduct the tasks in this Management Plan is provided in Exhibit
"D".
Segment 3 of the Property is heavily infested with invasive/exotic species such as
Brazilian pepper ( Schinus terebinthifolius), interspersed with some native
vegetation. It includes portions of at least two ditches that were excavated for
mosquito control purposes. These ditches traverse the entire property
(approximately 7.88 acres) from east to west and include intermittent connections
to the Banana River. These ditches have adjacent spoil berms that are dominated
by Brazilian pepper. The restoration/enhancement area (approximately 3.06
acres) consists of uplands and wetlands. The upland portion is classified as
Hardwood-Conifer Mixed (FLUCCS -4340; FNAI -Maritime Hammock).
Dominant vegetation within the Maritime Hammock includes live oak ( Quercus
virginiana), cabbage palm (Sabal palmetto) and pignut hickory (Carya glabra).
Dominant subcanopy species are red cedar (Juniperus virginiana), American holly
(/lex opaca) and Yaupon (//ex vomitoria). The wetland portion is classified as
Mangrove Swamps (FLUCCS -6120; FNAI -Mangrove Swamp). Dominant
vegetation within the Mangrove Swamp includes red mangrove (Rhizophora
mangle), black mangrove (Avicennia germinans), white mangrove (Laguncularia
racemosa), and buttonwood (Conocarpus erectus). Scattered understory consists
of seaside oxeye (Borrichia frutescens), gray nicker ( Caesalpinia bonduc), and
coinvine (Dalbergia ecastaphyllum).
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The restoration/enhancement and long-term management of Segment 3 of the
Property shall be undertaken as specified in this Management Plan. Compliance
with the restoration/enhancement deliverables described herein shall be
undertaken in accordance with the following requirements as well as the City
Deliverables and Timeframes specified in Exhibit "C".
1. With reasonable advance notice, the City shall allow authorized District
representatives access to Segment 3 of the Property at reasonable times for
determining compliance with the terms of the Management Plan and the
Participation Agreement. The City shall either accompany the District
representatives onto Segment 3 of the Property or make provision for access.
2. The City shall implement and maintain all erosion and sediment control
measures (best management practices) required to retain sediment on-site and
to prevent violations of state water quality standards, in accordance with the
guidelines and specifications in the Erosion and Sediment Control Designer and
Reviewer Manual (Florida Department of Environmental Protection and Florida
Department of Transportation, June 2007) and the Florida Stormwater Erosion
and Sedimentation Control Inspector's Manual (Florida Department of
Environmental Protection, Nonpoint Source Management Section, July 2008).
Copies of these manuals are available on the District's website at
www.sjrwmd.com.
3. The City shall complete a Phase 1 Environmental Site Assessment ("ESA") of
Segment 3 of the Property.
4. The City shall encumber Segment 3 of the Property with a District-approved
conservation easement, that is in substantial conformance with one of the forms
incorporated in rule 62-330.301 (6), Florida Administrative Code. The conservation
easement shall contain the following note:
The restoration and enhancement of this land was made possible in part
by mitigation funds from the Florida Department of Transportation pursuant
to Section 373.4137, Florida Statutes. The intent of the mitigation is for the
land to be managed for conservation purposes in perpetuity. Any sale ,
transfer, remise, release or other conveyance of ownership of said land will
require modification of the St. Johns River Water Management District and
U.S. Army Corps of Engineers permits for the original road project and may
necessitate that additional alternative mitigation be provided. The permit
numbers that relate to this land are as follows: FOOT project numbers
407402-3 and 407402-4 District permit No. and U.S. Army
Corps of Engineers permit no . ___ _
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5. The City shall complete a vegetative survey of Segment 3 of the Property to
assess the coverage of invasive/exotic species as defined by the Florida Exotic
Pest Plant Council's 2017 Invasive Species List.
6. The City shall obtain any necessary Florida Department of Environmental
Protection (FDEP) and USACE permits or exemptions authorizing the mitigation
activities described in this Management Plan.
7. The City shall remove the invasive/exotic species identified by the vegetative
survey.
8. Within ten (10) days of notification by the City, the District shall meet with the City
onsite to confirm the removal of invasive/exotic species and agree on the upland
and wetland planting plan specifications. The planting plan specifications shall be
memorialized in writing by the City and approval acknowledged in writing by the
District.
The planting plan specifications for the upland and wetland areas shall include the
following components. The City shall plant the upland areas with live oak ( Quercus
virginiana), cabbage palm (Saba/ palmetto), pignut hickory (Carya glabra), red
cedar (Juniperus virginiana), American holly (/lex opaca) and Yaupon (/lex
vomitoria). The wetland areas shall be planted with appropriate species to be
determined upon clearing of invasive/exotic species. Size and density of upland
and wetland plant material shall be determined by availability and coverage
necessary upon removal of invasive/exotic species. Planting material shall be
obtained from an Association of Florida Native Nurseries-approved nursery and
shall be guaranteed to be healthy and free from pests and disease.
9. Within ten (10) days of notification by the City, the District shall inspect Segment
3 of the Property to confirm the planting of native vegetation in uplands and
wetlands in accordance with this Management Plan and the planting plan
specifications agreed to by the parties in paragraph #8 above.
10. Monitoring: The City shall monitor the planted area within thirty (30) days after
planting occurs to establish a baseline event, and then annually for five (5) years
to ensure the survival of the planted species. Monitoring will consist of a one
hundred percent (100 %) stem count of planted trees to determine percent
survivorship. Any native trees~ five (5) feet tall that naturally recruit within the
restoration area by the end of the five (5)-year monitoring period will also be
tallied. Groundcover succession will be assessed though comparative
photographs exposed at fixed photographic stations strategically established
across Segment 3 of the Property. Quantitative monitoring of groundcover will
only become necessary if there is a dispute about whether the success criterion
has been achieved . Site monitoring must be accomplished by September 30 of
each year and submitted to the District by November 1 of that year.
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11 . The City shall maintain Segment 3 of the Property in accordance with the
following success criteria:
a. At least eighty percent (80%) of the planted individuals in each stratum have
survived throughout the monitoring period and are showing signs of normal
growth, based upon standard growth parameters such as height and base
diameter, or canopy circumference;
b. At least eighty percent (80%) cover by appropriate wetland herbaceous
species has been obtained;
c. If fifty percent (50%) or greater mortality of planted wetland and upland
species in any stratum within Segment 3 of the Property occurs during the
monitoring period, the City shall undertake an immediate
replanting/remediation program approved by the District;
d. Coverage of invasive/exotic species, as defined by the Florida Exotic Pest Plant
Council's 2017 Invasive Species List, within Segment 3 of the Property shall be
less than five percent (5%) coverage in perpetuity. Appropriate methods of
control include, but are not limited to , cutting, mowing, hand removal, chemical
treatment, or any combination thereof; and
e. Personnel implementing this work shall be qualified to identify invasive/exotic
species and qualified to recognize locally occurring native species to avoid
damage to native species. Invasive/exotic species removal shall occur in a
manner minimizing damage to native vegetation.
12. The City shall monitor and maintain Segment 3 of the Property in accordance
with the success criteria specified in this Management Plan. Within ten (10) days
of notification by the City, the District shall inspect Segment 3 of the Property to
confirm success criteria achievement. If success criteria are not achieved as
specified in this Management Plan, the City shall undertake remedial action to
remedy the deficiencies within forty-five ( 45) days of written notification from the
District.
13. The City shall manage Segment 3 of the Property for conservation purposes in
perpetuity in accordance with this Management Plan and the recorded
conservation easement.
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Exhibit "C"
DELIVERABLES, TIMEFRAMES AND REMITTANCES
The City agrees to provide the following deliverables within the timeframes specified
herein. The District agrees to provide remittances to the City as specified herein.
City Deliverables and Timeframes:
1. The City shall submit a Phase 1 ESA of Segment 3 of the Property within sixty
(60) days of the Effective Date of this Participation Agreement.
2. The City shall initially submit a draft conservation easement to the District for
approval. The District shall provide any comments or require modifications to the
City within ten (10) days. The original recorded conservation easement over
Segment 3 of the Property must be provided by the City to the District within
ninety (90) days of the Effective Date of this Participation Agreement.
3. The City shall conduct a vegetative survey of Segment 3 of the Property to
assess the coverage of invasive/exotic species. A copy of the vegetative survey
shall be submitted to the District within ninety (90) days of the Effective Date of
this Participation Agreement.
4. The City shall obtain FDEP and USACE permits or exemptions authorizing the
mitigation activities described in the Management Plan defined in Exhibit "B"
within one hundred and twenty (120) days of the Effective Date of this
Participation Agreement.
5. The City shall complete the removal of existing invasive/exotic species and
planting of native vegetation in accordance with the Management Plan described
in Exhibit "B" within three hundred (300) days of the Effective Date of this
Participation Agreement.
6. The City shall monitor and maintain Segment 3 of the Property in accordance
with the success criteria specified in the Management Plan described in Exhibit
"B". As described in Exhibit "B", monitoring reports shall be submitted to the
District. Within ten (10) days of notification by the City, the District shall inspect
Segment 3 of the Property to confirm success criteria achievement as specified
in the Management Plan described in Exhibit "B". If success criteria are not
achieved as specified in the Management Plan described in Exhibit "B", the City
shall undertake remedial action to remedy the deficiencies within forty-five ( 45)
days of written notification from the District.
7. Either the City or the District may terminate the remaining deliverables of this
Participation Agreement if the Phase 1 ESA identifies the presence of hazardous
materials within Segment 3 of the Property. If the Participation Agreement is
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terminated for that reason , reimbursement of expenses incurred by the City in
good faith to meet the obligations of the Participation Agreement shall not be
unreasonably withheld by the District.
8. Force majeure, Notice of Delay-The City shall not be responsible for delay
resulting from its failure to perform if neither the fault nor the negligence of the
City or its employees or agents contributed to the delay and the delay is due
directly to acts of God, wars, acts of public enemies, strikes, fires, floods, or other
similar causes wholly beyond the City's control. In case of any delay the City
reasonably believes is due to any causes described in this paragraph, the City
shall notify the District in writing of the delay or potential delay and describe the
cause of the delay within ten (10) days after the cause first arose. No claim for
damages, other than for an extension of time, shall be asserted by the City nor
shall the City be entitled to an increase in payment of any kind from the District
for direct, indirect, consequential, impact or other costs, expenses or damages,
including but not limited to costs of acceleration or inefficiency, arising because
of delay, disruption, interference, or hindrance from any causes whatsoever. If
performance is suspended or delayed, in whole or in part, due to any of the
causes described in this paragraph , after the causes have ceased to exist, the
City shall perform at no increased cost. Furthermore, if performance is
suspended or delayed , in whole or in part, due to any of the causes described in
this paragraph, the District shall agree to an equitable time extension to complete
the remaining tasks and process remaining remittances specified in this
Participation Agreement. Such equitable adjustments require the written consent
of the District, which shall not be unreasonably withheld.
9. The City shall manage Segment 3 of the Property for conservation purposes in
perpetuity in accordance with the Management Plan described in Exhibit "B" and
the recorded conservation easement.
District Funding:
The District shall transmit remittances to the City as follows:
Deliverable
District receipt of the Phase 1 ESA of Segment 3 of the Property,
original recorded conservation easement over Segment 3 of the
Property, vegetative survey of Segment 3 of the Property, and
FDEP and USACE permits/exemptions authorizing the mitigation
activities described in the Mana ement Plan defined in Exhibit "B".
District receipt of baseline monitoring report and site inspection
confirms compliance with the removal of existing invasive/exotic
species and planting of native vegetation in accordance with the
Mana~ ement Plan described in Exhibit "B''
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Remittance
Amount
$1 ,390
$19,025
District receipt of City documentation of completion of three (3) $4,299 per
herbicide treatments each year, for a five (5)-year period. Five (5) year for five
payments will occur, after completion of each year's treatment, in years. (Total:
the amount of $4,299 per year. $21 ,495)
District receipt of an annual monitoring report, for four ( 4) years. $2,000 per
Four (4) payments will occur, after receipt of each monitoring report, year for four
in the amount of $2 ,000 per monitoring report submittal. years. (Total:
$8,000)
District site inspection confirms Segment 3 of the Property has met $4,400
success criteria in accordance with the Management Plan described
in Exhibit "B".
$54,310
TOTAL
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Exhibit "D"
Cost Estimate
(Provided by BKI , Inc. Consulting Ecologists, 7-16-2018)
TASK CITY PARCEL COST
ESTIMATE
Conduct Phase 1 $2 ,500
Environmental Site Assessment
Record Conservation Easement $265
(survey and recording costs)
Conduct Vegetative Survey $1 ,500
Obtain State and Federal $1 ,525
Permits/Exemptions
Remove invasive/exotic species $12,500
(mulching-$4,000 per acre)
Install upland and wetland $3,725
plantings ( one ( 1) year plant
material guarantee)
Herbicide Treatments (three (3) $21,495
treatment events per year for ($1,433 per event)
five ( 5) years)
Monitoring (one (1) Baseline $10,800
Report and four ( 4) Annual (Baseline: $2 ,800,
Reports) Annual: $2,000)
TOTAL COST ESTIMATE $54,310
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