Contract 2020-109ADeSantis
FLORIDA DEPARTMENT OF Ron Governor
Environmental Protection Jeanette Nunez
Lt. Governor
CENTRAL DISTRICT OFFICE Noah Valenstein
3319 MAGUIRE BLVD., SUITE 232 Secretary
ORLANDO, FLORIDA 32803
April 20, 2020
Mr. Darren Gray, City Manager
City of Clermont
685 W. Montrose St.
Clermont, FL 34712
DGray(a,clermontfl.org
Re: City of Clermont
ERP Site ID No. 175175
OGC Case No. 19-1317
Dear Mr. Gray:
Enclosed is the executed Consent Order to resolve the above referenced case. This copy is for
your records.
Should you have any questions or comments, please contact Hailey Ambrose at 407-897-4336 or
via e-mail at Hailey.Ambrose(&FloridaDEP. og_v.
Your cooperation in this matter will be appreciated.
Sincerely,
Aaron Watkins
Director, Central District
Enclosure
cc: Scott Davidoff, sdavidoff(gclermontfl.gov
Zoey Carr, Central District
Daun Festa, Central District
Hailey Ambrose, Central District
floridadep.gov
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION AND BOARD OF TRUSTEES OF
THE
INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
and BOARD OF TRUSTEES OF THE
INTERNAL IMPROVEMENT TRUST FUND
OF THE STATE OF FLORIDA,
VS.
CITY OF CLERMONT
IN THE OFFICE OF THE
CENTRAL DISTRICT
OGC File No. 19-1317
CONSENT ORDER and TEMPORARY USE AGREEMENT
This Consent Order and Temporary Use Agreement (Order) is entered into between the
State of Florida Department of Environmental Protection (Department) and Board of Trustees of
the Internal Improvement Trust Fund of the State of Florida (Board), as complainants, and City
of Clermont (Respondent) to reach settlement of certain matters at issue between the
Department, the Board and Respondent.
The Department and the Board finds, and the Respondent admits the following:
1. The Department is the administrative agency of the State of Florida having the
power and duty to protect Florida's air and water resources and to administer and enforce chapter
373, Part IV, and chapter 403, Florida Statutes, and the rules promulgated and authorized
thereunder, title 62, Florida Administrative Code. The Department has jurisdiction over the
matters addressed in this Order.
2. The Board is responsible for overseeing state lands and ensuring they are
managed in trust for the citizens of the State of Florida pursuant to chapter 253, Florida Statutes,
and title 18, Florida Administrative Code. The Department has the duty to perform all staff
duties and functions related to the administration of state lands as provided in section 253.002,
Florida Statutes.
3. Respondent is a person within the meaning of sections 253.04 and 373.019(15),
Florida Statutes.
4. Respondent is the owner of real property located at 1050 Victory Way, Parcel ID
23-22-25-0400-117-00400 and Lake Minneola Drive, Parcel ID 23-22-25-0400-117-00800,
Clermont, in Lake County.
5. The Department and the Board find that the Respondent violated rules 62-
330.020(2)(a), 62-256.300(2)(a), and 18-21.005(1)(d), Florida Administrative Code,
respectively.
a) An inspection by Department personnel on May 11, 2019 revealed that an
approximately 6,561-ft. x 354-ft. rowing course totaling 2,322,594 square feet, was installed and
operated for revenue generating purposes on these sovereign lands (Sovereign Lands) without a
valid permit from the Department and valid sovereignty submerged lands lease from the Board
(Proprietary Authorization) to use Sovereign Lands, in violation of Chapter 403.161, F.S. and
Chapters 62-330.020 and 18-21.005, F.A.C. The above described activity was conducted on these
Sovereign Lands within the waterward extent of Lake Minneola, waters of the state as defined by
Florida Law, adjacent to Respondent's riparian upland real properties without the Board's approval
or authorization.
b) On August 3, 2019, the Respondent authorized a cardboard boat race event
to be held in Lake Minneola and the burning of the vessels in the surface water, in violation of
Rules 18-21.005(1)(d) and 62-256.300(2)(a), Florida Administrative Code.
6. Respondent desires to enter into this Order to resolve these violations and to use
the Sovereign Lands and water column adjacent to the Respondent's riparian upland real property
described in paragraph 4 of this Order.
7. Respondent desires to obtain Proprietary Authorization from the Board to maintain
and use the structures located on the Sovereign Lands as depicted in Exhibit "A".
8. The parties acknowledge that the application, approval and issuance of Proprietary
Authorization to use the Sovereign Lands may require a time period of several months.
9. The Respondent desires to have the temporary use of the structures located on
Sovereign Lands during the processing and review of the Respondent's application for Proprietary
Authorization to use the Sovereign Lands.
Having reached a resolution of the matter Respondent, the Department and the Board
mutually agree and it is,
ORDERED:
10. All notifications required by this consent order shall be submitted by electronic mail
to DEP CD(iWgp.state.fl.us.
11. Within 90 days of the effective date of this Order, Respondent shall submit a permit
application to the Department.
a) Respondent shall submit any additional information requested by the
Department within 90 days of request.
b) Respondent shall complete their application within 120 days of application
submission as required in paragraph 11.
12. The Department agrees to allow Respondent to re -install the remaining rowing
course components (tethers and buoys) for planned events under the following conditions:
a) Respondent shall notify the Department of a planned event at least 30 days
prior to the event taking place.
b) Respondent shall re -install the rowing course components no sooner than
14 days prior to a planned event and shall remove all components, except anchors, no later than
14 days after the event.
c) Respondent shall notify the Department within 96 hours of having
removed the rowing course components after each event.
d) Respondent shall maintain records of revenue generated on state lands
during planned events, including but not limited to registration fees, and shall provide this
documentation to the Department on the first day of each calendar quarter (January, April, July,
and October).
13. In the event that an application for Proprietary Authorization to use the Sovereign
Lands is not approved by the Board, or the Respondent fails to execute the Lease prior to the
expiration or termination of the temporary use agreement, whichever occurs first, the Respondent
shall remove all structures referenced herein from [on] the Sovereign Lands at the Respondent's
sole expense. In the event that the Respondent asserts title to the Sovereign Lands identified
above, and either the Respondent fails to timely submit the information concerning title as
required herein, or the Board denies the Respondent's claim of title and the Respondent has not
file a lawsuit to recover stipulated penalties under this paragraph, the Department will not be
foreclosed from seeking civil penalties for violations of this Order in an amount greater than the
stipulated penalties due under this paragraph.
17. The Respondent acknowledges and understands that the grant of this Order and
the payment of the amount herein does not guarantee that the Board will grant the Respondent a
Proprietary Authorization to use the Sovereign Lands or that the Department of Environmental
Protection will recommend that the appropriate form of Proprietary Authorization be granted.
18. The Respondent is hereby granted the temporary exclusive use of the structures
located on the Sovereign Lands identified above, consisting of approximately 2,322,594 square
feet, waterward of Respondent's riparian upland real property described above in paragraph 4.
This temporary exclusive use is for a term not to exceed one year from the effective date of this
Order, or until the date of execution of Proprietary Authorization to use the Sovereign Lands
between the Board and the Respondent, whichever occurs first. The Respondent shall make no
claim of title to or interest in the Sovereign Lands identified above solely by reason of occupancy
or use thereof under this Order.
19. The existing structures can only be utilized as they were on the effective date of
this Order. In the event any part of any of these structures is determined by a final adjudication
issued by a court of competent jurisdiction to encroach or interfere with riparian rights of the
adjacent upland riparian owner, Respondent agrees to either obtain written consent for the
offending structure [or use] from the affected adjacent upland riparian owner or remove the
interference or encroachment within 60 days from the date of the adjudication. Failure to
comply with this paragraph shall constitute a material breach of this Order and be grounds for
immediate termination of this Order at the sole option of the Board.
20. If any event, including administrative or judicial challenges by third parties
unrelated to the Respondent, occurs which causes delay or the reasonable likelihood of delay, in
complying with the requirements of this Order, Respondent shall have the burden of proving the
delay was or will be caused by circumstances beyond the reasonable control of the Respondent
and could not have been or cannot be overcome by Respondent's due diligence. Economic
circumstances shall not be considered circumstances beyond the control of Respondent, nor shall
the failure of a contractor, subcontractor, materialman or other agent (collectively referred to as
"contractor") to whom responsibility for performance is delegated to meet contractually imposed
deadlines be a cause beyond the control of Respondent, unless the cause of the contractor's late
performance was also beyond the contractor's control. Upon occurrence of an event causing
delay, or upon becoming aware of a potential for delay, Respondent shall notify the Department
and the Board orally within 24 hours or by the next working day and shall, within seven calendar
days of oral notification to the Department and the Board, notify the Department and the Board
in writing of the anticipated length and cause of the delay, the measures taken or to be taken to
prevent or minimize the delay and the timetable by which Respondent intends to implement
these measures. Respondent shall notify the Department's Central District Office via phone at
407-897-4100 and email at DEP CI) a,FloridaDEP.gov, and the Board via phone at 850-245-
2555 and email at public.servicesCa FloridaDEP.gov. If the parties can agree that the delay or
anticipated delay has been or will be caused by circumstances beyond the reasonable control of
Respondent, the time for performance hereunder shall be extended for a period equal to the
agreed delay resulting from such circumstances. Such agreement shall adopt all reasonable
measures necessary to avoid or minimize delay. Failure of Respondent to comply with the notice
requirements of this Paragraph in a timely manner shall constitute a waiver of Respondent's right
to request an extension of time for compliance with the requirements of this Order.
21. Respondent shall allow all authorized representatives of the Department and the
Board access to the Respondent's riparian upland property and the Sovereignty Lands at
reasonable times for the purpose of determining compliance with the terms of this Order and the
rules and statutes of the Department and the Board.
22. Respondent shall not conduct any dredging, filling, or construction activities on or
within the landward extent of waters of the state without first obtaining a valid Department
permit or written notification from the Department that the activities appear to be exempt as
proposed from Department permitting requirements; nor shall Respondent conduct any activities
on state lands below the ordinary or mean high water line without first obtaining the appropriate
form of Proprietary Authorization to use the Sovereign Lands from the Board.
23. Entry of this Order does not relieve Respondent of the need to comply with
applicable federal, state or local laws, regulations or ordinances.
24. Respondent shall save and hold harmless and indemnify the Board, the
Department, and the State of Florida against any and all liability, claims, judgments or costs of
whatsoever kind and nature for injury to, or death of, any person or persons and for loss or
damage to any property arising out of or connected with Respondent's occupation and use of the
Sovereignty Lands and the structures or activities located thereon. By execution of this Order,
Respondent waives any claim it may have against the Department or the Board concerning the
Sovereign Lands.
25. The terms and conditions set forth in this Order may be enforced in a court of
competent jurisdiction pursuant to sections 120.69, 253.04 and 373.129, Florida Statutes. Failure
to comply with the terms of this Order shall constitute a violation of sections 253.04 and
373.430, Florida Statutes.
26. Respondent is fully aware that a violation of the terms of this Order may subject
Respondent to judicial imposition of damages, civil penalties of up to $10,000 per day per
violation [and administrative fines of up to $10,000 per day per violation] and criminal penalties.
27. The Department and the Board hereby expressly reserve the right to initiate
appropriate legal action to prevent or prohibit any violations of applicable statues, or the rules
promulgated thereunder that are not specifically addressed by the terms of this Order.
28. The Department and the Board, for and in consideration of the complete and timely
performance by Respondent of the obligations agreed to in this Order, hereby waives its right to
seek judicial imposition of damages or civil penalties for alleged violations addressed in this Order.
29. Respondent acknowledges and waives its right to an administrative hearing
pursuant to sections 120.569 and 120.57, Florida Statutes, on the terms of this Order. Respondent
acknowledges its right to appeal the terms of this Order pursuant to section 120.68, Florida
Statutes, and waives that right upon signing this Order.
30. Electronic signatures or other versions of the parties' signatures, such as .pdf or
facsimile, shall be valid and have the same force and effect as originals. No modifications of the
terms of this Order shall be effective until reduced to writing and executed by both Respondent,
the Department, and the Board.
31. In the event of a sale or conveyance of the Respondent's riparian upland property,
if all of the requirements of this Order have not been fully satisfied, Respondent shall, at least 30
days prior to the sale or conveyance of the property, (1) notify the Department of such sale or
conveyance and (2) provide a copy of this Order with all attachments to the new owner. The sale
or conveyance of the property shall not relieve the Respondent of the obligations imposed in this
Order. Further, this Order and any rights and privileges contained herein, are for the sole benefit
7
and use of the Respondent and shall not be assigned or transferred by the Respondent to any other
party without the prior written consent of the Department and the Board, which consent shall not
be unreasonably withheld.
32. The terms of this Order pertaining to the Respondent's use of the Sovereign Lands
may be enforced by the Board notwithstanding that the proprietary authorization granted
hereunder has expired.
33. Unless otherwise specified, all submittals and payments required by this Order to
be submitted to the Department shall be sent to the Florida Department of Environmental
Protection, Compliance Assurance Program, 3319 Maguire Blvd., Suite 232, Orlando, FL 32803,
and shall include the OGC number.
34. This Order is a settlement of the Department's and the Board's civil and
administrative authority arising under Florida law to resolve the matters addressed herein. This
Order is not a settlement of any criminal liabilities which may arise under Florida law, nor is it a
settlement of any violation which may be prosecuted criminally or civilly under federal law.
35. This Order is a final order pursuant to section 120.52(7), Florida Statutes, and it is
final and effective on the date filed with the Clerk of the Department unless a Petition for
Administrative Hearing is filed in accordance with chapter 120, Florida Statutes. Upon the
timely filing of a petition this Order will not be effective until further order.
NOTE: The Board's actions relating to Proprietary requirements contained in this
Consent Order are not subject to challenge under Chapter 120, Florida Statutes. Any
litigation involving these Proprietary requirements shall be initiated and maintained only
in Leon County.
36. Persons who are not parties to this Consent Order, but whose substantial interests
are affected by it, have a right to petition for an administrative hearing under sections 120.569
and 120.57, Florida Statutes. Because the administrative hearing process is designed to
formulate final agency action, the filing of a petition concerning this Consent Order means that
the Department's final action may be different from the position it has taken in the Consent
Order.
The petition for administrative hearing must contain all of the following information:
a) The OGC Number assigned to this Consent Order;
b) The name, address, and telephone number of each petitioner; the name,
address, and telephone number of the petitioner's representative, if any, which
shall be the address for service purposes during the course of the proceeding;
c) An explanation of how the petitioner's substantial interests will be affected by
the Consent Order;
d) A statement of when and how the petitioner received notice of the Consent
Order;
e) Either a statement of all material facts disputed by the petitioner or a
statement that the petitioner does not dispute any material facts;
f) A statement of the specific facts the petitioner contends warrant reversal or
modification of the Consent Order;
g) A statement of the rules or statutes the petitioner contends require reversal or
modification of the Consent Order; and
h) A statement of the relief sought by the petitioner, stating precisely the action
petitioner wishes the Department to take with respect to the Consent Order.
The petition must be filed received at the Department's Office of General Counsel, 3900
Commonwealth Boulevard, MS# 35, Tallahassee, Florida 32399-3000 within 21 days of receipt
of this notice. A copy of the petition must also be mailed at the time of filing to the District
Office at 3319 Maguire Blvd., Suite 232, Orlando, FL 32803. Failure to file a petition within the
21-day period constitutes a person's waiver of the right to request an administrative hearing and
to participate as a party to this proceeding under sections 120.569 and 120.57, Florida Statutes.
Before the deadline for filing a petition, a person whose substantial interests are affected by this
Consent Order may choose to pursue mediation as an alternative remedy under section 120.573,
Florida Statutes. Choosing mediation will not adversely affect such person's right to request an
administrative hearing if mediation does not result in a settlement. Additional information about
mediation is provided in section 120.573, Florida Statutes and Florida Administrative Code Rule
62-110.106(12).
37. Rules referenced in this Order are available at
bit.p://www.dgp.state.fl.us/legal/Rules/rulelist.htrn
ipe 1P 0, v
DATE
FOR DEPARTMENT USE ONLY:
20th
DONE AND ORDERED this
in Orlando, Florida.
FOR THE RESPONDENT:
(Name)
(Title) Q
April
day of 520205
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
Aaron Watkins
District Director
Filed, on this date, pursuant to Section 120.52, Fla. Stat., with the designated Department
Clerk, receipt of which is hereby acknowledged.
April 20, 2020
Clerk
cc: Lea Crandall, Agency Clerk
Mail Station
Date
BOARD OF TRUSTEES OF THE
INTERNAL
IMPROVEMENT TRUST FUND OF THE
STATE OF FLORIDA
By:
Aaron Watkins
District Director, State of Florida
Deparknent of Environmental Protection,
as agent for and on behalf of the Board of
Trustees of the Internal Improvement Trust
Fund of the State of Florida
10
EXHIBIT A