HomeMy WebLinkAboutR-00-0488J-00-503
5/29/00
RESOLUTION NO.
•
00- 488
A RESOLUTION OF THE MIAMI CITY COMMISSION
AUTHORIZING THE CITY MANAGER TO EXECUTE A
CONSENT ORDER, IN SUBSTANTIALLY THE ATTACHED
FORM, WITH THE STATE OF FLORIDA, DEPARTMENT
OF ENVIRONMENTAL PROTECTION, TO PROVIDE FOR
RESOLUTION TO THE MATTER OF DREDGING WITHOUT
BENEFIT OF A VALID PERMIT FROM DEPARTMENT OF
ENVIRONMENTAL PROTECTION; AUTHORIZING THE
CITY MANAGER TO EXECUTE THE NECESSARY
DOCUMENTS AND TO PERFORM THE CORRECTIVE
ACTIONS OUTLINED IN THE CONSENT ORDER.
WHEREAS, the City of Miami constructed docks on submerged
lands located adjacent to 2640 South Bayshore Drive, Miami,
Florida; and
WHEREAS,
during an
inspection
by
the
Department of
'Environmental
Protection ("DEP")
on July
16,
1998,
DEP discovered
that approximately 250 cubic yards of material had been dredged
on or before June 9, 1998 without benefit of a valid permit from
DEP; and
WHEREAS, representatives of the City and DEP met to
determine a resolution to this matter; and
WHEREAS, DEP has agreed to permit the City to conduct an in-
kind penalty project in lieu of paying a fine;
;ATTACHMENT ()
(ONTAI N
JUN m 8.2000
Flesolution
8 ;L
4:
"k
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The City Manager is hereby authorized" to
execute a Consent Order, in substantially the attached form, with
the State of Florida, Department of Environmental Protection
("DEP"), to provide a resolution to the matter of dredging
without benefit of a valid permit from the DEP and to perform the
corrective actions outlined in the Consent Order.
Section 3. This Resolution shall become effective
immediately upon its adoption and signature of the Mayor./
�i The herein authorization .is further subject to compliance with all
requirements that may be imposed by the City Attorney, including but not
limited to those prescribed by applicable City Charter and Code
provisions.
If the Mayor does not sign this Resolution, it shall become effective at
the end of ten calendar days from the date it was passed and adopted.
If the Mayor vetoes this Resolution, it shall become effective
immediately upon override of the veto by the City Commission.
Page 2 of 3
•
PASSED AND ADOPTED this 8th day of June 2000.
JOE CAROLLO, MAYOR
in accordance with Miami Code Sec. 2.36, since the Mayor did not indicate approval of
this legislation by signing it in the designated place ovided, said iegiwiat;cA siva
becomes effective with the elapse of ten (10) days fro a date of Commissic ct on
regarding same, Without the Mayor ex rc' 'n a t .
ATTEST:
Walter J. Clerk
WALTER J. FOEMAN
CITY CLERK
APPRO TO FORM AND CORRECTNESS:t/
ANVILARELLO
7FY ATTORNEY
W4461:RCL
Page 3 of 3
Exhibit 1
WAGNER CREEK PHASE IV
Description of Mitigation
The project is known as Phase IV, and consists of Wagner Creek between NW 14 Avenue and
NW 15 Street. The activity involves the removal of all trash and debris; dredge the creek bottom to
remove sediment buildup and improve flow characteristics, with the specific amount to be dredged
to be determined during the Design Phase; shoreline stabilization will be conducted in areas
where stabilization is needed along the banks of the creek.
SPECIAL STIPULATIONS
The City will promptly design and install any required retrofitting equipment on the outfall systems
as required by the Miami -Dade County Department of Environmental Resource Management or
the South Florida Water Management District. The City shall notify DEP of any issues and
problems in meeting the time frames stated in this Consent Order. Upon occurrence of an event
causing delay, or upon becoming aware of a potential for delay, the Respondent shall notify the
Department as specified in the provisions of this Consent Order.
The Respondent shall have the burden of proving the delay was or will be caused by
circumstances beyond the reasonable control of the Respondents and could not have been or
cannot be overcome by Respondent's due diligence. Resolution of this delay or anticipated, delay
shall be handled as stipulated in Section 8 of this Consent Order. However, if the failure of
meeting a deadline is the result of the City's inability or refusal to comply with stated requirements
of these agencies, this shall be considered to be a violation of this Consent Order.
ESTIMATED PROJECT COST
Wagner Creek Phase IV $400,000
TIMEFRAME SCHEDULE
The City shall, within the stated timeframe:
1) contract with engineer/surveyor for survey and design of Phases prior to July 1, 2000.
2) upon receipt of documents prepared by engineer/surveyor, City Public Works Dept to draft
project specs and prepare permit applications.
3) submit permit applications to appropriate governmental agencies by September 15, 2000.
4) make modifications to plans as necessary and resubmit to appropriate governmental agencies
within 30 days of notification.
5) obtain all applicable permits prior to December 31, 2000.
CONSTRUCTION PHASE
1) Award contract for construction within four (4) months following issuance of all applicable
permits.
2) Construction to commence within forty-five (45) days from award of contract.
3) Construction to be complete within three (3) months from the date construction
commences.
41F 8
BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
STATE OF FLORIDA DEPARTMENT )
OF ENVIRONMENTAL PROTECTION )
Complainant, )
►FJ
City of Miami,
Respondent.
CONSENT ORDER
IN THE OFFICE OF THE
SOUTHEAST DISTRICT
OGC FILE NO. 00-0026
This Consent Order is entered into between the State of Florida Department ofd ` --
Environmental Protection ("Department"), and City of Miami, ("Respondent") to reach' *e :
settlement of certain matters at issue between the Department and Respondent.
The Department finds and the. Respondent admits the following:
1. The Department is the administrative agency of the State of Florida haviri
P 9 Y hayin'
the power and duty to protect Florida's air and water resources and to administer and
enforce Part IV of Chapters 373 and 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 Consent Order.
2. Respondent is a person as defined by of Section 373.019(12), Florida
Statutes.
3. Respondent is the owner of property located adjacent to 2640 South
Bayshore Drive, at Latitude 250 44" and Longitude 800 14", and Section 22, Township 54
South, Range 41 East, Miami, Dade County, Florida ("Property").
O— 188
City of Miami
Consent Order OGC FILE NO. 00-0026
Page 2 of 11
4. Inspections by Department personnel on July 16, 1998 revealed that
approximately 250 cubic yards of material had been dredged on or before June 9, 1998
without benefit of a valid permit from the Department. Additionally, the dredged spoil was
not adequately contained on the upland property. The unreinforced, earthen
impoundment berm failed and allowed considerable material and water to escape into
Biscayne Bay Aquatic Preserve: The activity was conducted on and adjacent to the y Y
x ;�d
Property within the landward extent of Biscayne Bay, within the Biscayne Bay Aquatic ``
Preserve, waters of the State, as defined by Florida Law.
Having reached a resolution of the matter, Respondent and the Department -
mutually agree and it is,
ORDERED:
5. Within 30 days of the effective date of this Consent Order, Respondent shall ..
pay the Department $21,500 in settlement of the regulatory matters addressed in this
Consent Order. This amount includes $21,000 in civil penalties for alleged violations of
Section 373.430, Florida Statutes and Rule 62-343.050, Florida Administrative Code, and
$500.00 for costs and expenses incurred by the Department during the investigation of
this matter and the preparation and tracking of this Consent Order. Payment shall be
made by cashier's check or money order. The instrument shall be made payable to the
"Department of Environmental Protection" and shall include thereon the OGC number
assigned to this Consent Order (00-0026) and the notation "Ecosystem Management and
Restoration Trust Fund". The payment shall be sent to the Florida Department of
Environmental Protection, Post Office Box 15425, West Palm Beach, Florida 33416.
City of Miami
Consent Order OGC FILE NO. 00-0026
Page 3 of 11
6. In lieu of making cash payment of the civil penalties set forth in paragraph 5
above, Respondent may elect to implement the in-kind penalty project, which has been
approved by the Department and incorporated herein as Exhibit I. The in-kind project must
be an environmental enhancement, environmental education, environmental restoration o-
s
a capital/facility.improvement project. The Department may also consider the donation'of v
environmentally sensitive land as an in-kind project. The value of the in-kind penalty
project shall be one and a half Aimes the civil penalty amount, which in this case is the
equivalent of at least.$31,500.
7. With the exception of the activities described in Attachment A, effective
immediately and henceforth, the 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 as proposed appear to be exempt from Department permitting requirements; nor
shall the Respondent conduct any activities on state owned lands below the ordinary or
mean high water lines without first obtaining a lease, easement, or other consent of use
from the Department.
8. 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 Consent Order, the Respondent, upon
occurrence of an event causing delay, or upon becoming aware of a potential for delay,
0- 488
City of Miami
Consent Order OGC FILE NO. 00-0026
Page 4 of 11
shall notify the Department orally within 24 hours or by the next working day and shall,
within 21 calendar days of oral notification to the Department, notify the Department 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 the Respondent intends to
implement these measures. Additionally, Respondent shall forward all documentation orYj;,�
papers which establish the administrative or judicial challenge by third parties to the
Department. The Department acknowledges that City contracts require final approval by
a State of Florida Financial Oversight Committee (the "Committee"). This Committee has
final approval of all City contracts and, may cause delays to the requirements of this
Consent Order. Such delays shall be considered a delay beyond the control of the
Respondent. The Department further acknowledges that the Respondent will make' -full
effort to comply with the requirements of this Consent Order; however, delays on the part
of contractors, sub -contractors, materialmen or other agents (collectively referred to as
"contractor") shall be investigated and presented to the Department on a case by case
basis and not presumed to be delays attributable to the Respondent. If the parties can
agree that the delay or anticipated delay has been or will be caused by circumstances
beyond the reasonable control of the 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 the Respondent to comply with the notice requirements of
IfIVITEIr
0 - 0
City of Miami
Consent Order OGC FILE NO. 00-0026
Page 5 of 11
this Paragraph in a timely manner shall constitute a waiver of the Respondent's right to
request an extension of time for compliance with the requirements of this Consent Order.
9. This Consent Order only addresses violations of the rules and statutes of the
Department and does not address potential violations of the rules and statutes of the
Board of Trustees of the Internal Improvement Trust Fund for the use of lands owned by ��F ,
/,i '1''e'
the State of Florida. Entry of this Consent Order does not constitute a permit from the?'34
Department nor does it convey any authority from the Board of Trustees of the Internal
Improvement Trust Fund involving the use of sovereignty *or other lands of the State. A
copy of this Consent Order will be furnished to the Division of State Lands.
10. The Respondent is hereby advised that Florida law states: "No person shall
commenceany excavation, construction or other activity involving the use of sovereign..or.
other lands of the State, title to which is vested in the Board of Trustees of the Internal
Improvement Trust Fund or the Department of. Environmental Protection under Chapter
253, Florida Statutes, until such person has received from the Board of Trustees of the
Internal Improvement Trust Fund the required lease, license, easement or other form of
consent authorizing the proposed use." If such work is done without consent, a fine for .
each offense in an amount of up to $10,000.00 per violation per day may be imposed.
11. Entry of this Consent Order does not relieve the Respondent of the need to
comply with applicable federal, state or local laws, regulations or ordinances.
12. The terms and conditions set forth in this Consent Order may be enforced in
a court of competent jurisdiction pursuant to Sections 120.69 and 373.129, Florida
Statutes. Failure to comply with the terms of this Consent Order shall constitute a violation
of Section 373.430, Florida Statutes.
City of Miami
Consent Order OGC FILE NO. 00-0026
Page 6 of 11
13. Respondent is fully aware that a violation of the terms of this Consent Order
may subject the Respondent to judicial imposition of damages, civil penalties of up to
$10,000 per day per violation and criminal penalties.
14. Persons who are not parties to this Consent Order but whose substantial
interests are affected by this Consent Order have a right, pursuant to Sections 120.569
and 120.57, Florida Statutes, to petition for an administrative hearing on it. 1
The Petition must contain the information set forth below and 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:.. ,
named above at the address indicated. Failure to file a petition within the 21 days
constitutes a waiver of any right such person has to an administrative hearing pursuant
Section 120.57, Florida Statutes.
The petition shall contain the following information:
(a) The name, address, and telephone number of each petitioner; the Department's
Consent Order identification number and the county in which the subject matter or activity
is located; (b) A statement of how and when each petitioner received notice of the
Consent Order; (c) A statement of how each petitioner's substantial interests are affected
by the Consent Order; (d) A statement of the material facts disputed by petitioner, if any;
(e) A statement of facts which petitioner contends warrant reversal or modification of the
Consent Order; (f) A statement of which rules or statutes petitioner contends r6quire
reversal or modification of the Consent Order; (g) A statement of the relief sought by
petitioner, stating precisely the action petitioner wants the Department to take with respect
to the Consent Order.
If a petition is filed, the administrative hearing process is designed to formulate
agency action. Accordingly, the Department's final action may be different from the
position taken by it in this Notice. Persons whose substantial interests will be affected by
City of Miami
Consent Order OGC FILE NO. 00-0026
Page 7 of 11
any decision of the Department with regard to the subject Consent Order have the right to
petition to become a party to the proceeding.
The petition must conform to the requirements specified above and be filed
(received) within 21 days of receipt of this notice in the Office of General Counsel at the
above address of the Department. Failure to petition within the allowed time frame
constitutes a waiver of any right such person has to request a hearing under Sections ,f
120.569 and 120.57, Florida Statutes, and to participate as a party to this proceeding. Ariy
subsequent intervention will only be at the approval of the presiding officer upon motion'
filed pursuant to Rule 28-106.205, Florida Administrative Code.
A person whose substantial interests are affected by the Consent Order may file a
timely petition for an administrative hearing under Sections 120.569 and 120.57, Florida.``
Statutes, or may choose to pursue mediation as an alternative remedy under Section
120.573, Florida Statutes, before the deadline for filing a petition. Choosing mediation will _..::.
not adversely affect the right to a hearing if mediation does not result in a settlement. `T6"'.'.,
procedures for pursuing mediation are set forth below.
Mediation may only take place if the Department and all the parties to the
proceeding agree that mediation is appropriate. A person may pursue mediation by
reaching a mediation agreement with all parties to the proceeding (which include the
Respondents, the Department, and any person who has filed a timely and sufficient
petition for a hearing) and by showing how the substantial interests of each mediating
party are affected by the Consent Order. The agreement must be filed in (received by) the
Office of General Counsel of the Department at 3900 Commonwealth Boulevard, MS -35,
Tallahassee, Florida 32399-3000, within 10 days after the deadline as set forth above for
the filing of a petition. The agreement to mediate must include the following:
(a) The names, addresses, and telephone numbers of any persons who may attend
the mediation;
. 48D
City of Miami
Consent Order OGC FILE NO. 00-0026
Page 8 of 11
(b) The name, address, and telephone number of the mediator selected by the
parties, or a provision for selecting a mediator within a specified time;
(c) The agreed allocation of the costs and fees associated with the mediation;
(d) The agreement of the parties on the confidentiality of discussions and
documents introduced during mediation; .
(e) The date, time, and place of the first mediation session, or a.deadline
holding the first session, if no`mediator has yet been chosen;
(f) The name of each party's representative who shall have authority to settle or
recommend settlement; and
(g) Either an explanation of how the substantial interests of each mediating party
will be affected by the action or proposed action addressed in this notice of intent ora'
statement clearly identifying the petition for hearing that each party has already filed, and :.
incorporating it by reference.
(h) The signatures of all parties or their authorized representatives.
As provided in Section 120.573, Florida Statutes, the timely agreement of all
parties to mediate will toll the time limitations imposed by Sections 120.569 and 120.57,
Florida Statutes, for requesting and holding an administrative hearing. Unless otherwise
agreed by the parties, the mediation must be concluded within 60 days of the execution of
the agreement. If mediation results in settlement of the administrative dispute, the
~ Department must enter a final order incorporating the agreement of the parties.
Persons whose substantial interests will be affected by such a modified; final
decision of the Department have a right to petition for a hearing only in accordance with
the requirements for such petitions set forth above, and must therefore file their petitions
within 21 days of receipt of this notice. If mediation terminates without settlement of the
dispute, the Department shall notify all parties in writing that the administrative hearing
processes under Sections 120.569 and 120.57, Florida Statutes, remain available for
Gr 488
City of Miami
Consent Order OGC FILE NO. 00-0026
Page 9 of 11
disposition of the dispute, and the notice will specify the deadlines that then will apply for
challenging the agency action and electing remedies under those two statutes.
15. The Department hereby expressly reserves the right to initiate appropriate
legal action to prevent or prohibit any violations ofapplicable statutes, or the rules
promulgated thereunder that are not specifically addressed by thelerms of this Consent 4
Order. t,
16. The Department, for and in consideration of the complete and timely.. '
performance by Respondent of the obligations agreed to in this Consent Order, hereby_
waives its right to seek judicial imposition of damages or civil penalties for alleged
violations addressed in this Consent Order. This waiver does not affect any claim ttie
Department or the Board of Trustees of the Internal Improvement Trust Fund may have
for violations not addressed herein, notwithstanding that the other claims may involve the
same activities addressed herein.
17. 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 Consent
Order. Respondent acknowledges its right to appeal the terms of this Consent Order
pursuant to Section 120.68, Florida Statutes, and waives that right upon signing this
Consent Order.
18. No modifications of the terms of this Consent Order shall be effective until
6._ 858
City of Miami
Consent Order OGC FILE NO. 00-0026
Page 10 of 11
reduced to writing and executed by both Respondent and the Department.
19. All submittals and payments required by this Consent Order to be submitted
to the Department shall be sent to the Florida Department of Environmental Protection,
400 N Congress Avenue, Post Office Box 15425, West Palm Beach, Flonda 33416,
:.
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20. This Consent Order is'a settlement of the Department's civil aril
administrative authority arising under Florida. law to. resolve the matters addressed herein
This Consent 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.
21. This Consent Order is a final order of the Department 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 Consent Order will
not be effective until further order of the Department.
City of Miami
Consent Order OGC FILE NO: 00-0026
Page 11 of 11
DONE AND ORDERED this day of , 2000, in West Palm
Beach, Florida.
FOR THE RESPONDENT STATE OF FLORIDA DEPARTMENT...
OF ENVIRONMENTAL PROTECTION
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Printed Name _ 1 _ Melissa L. Meeker
• -s
an
to
v
Director of Dis ct M agement z
Southeast District
- P.O. Box 15425
Title West Palm Beach, FL 33416-5425
(561) 681-6600 "
FILING AND ACKNOWLEDGEMENT FILED, on this date, pursuant to §120.52 Florida
Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.
Clerk
cc: Larry Morgan
Date
0
CITY OF MIAMI, FLORIDA 20
INTER -OFFICE MEMORANDUM
TO: The Honorable Mayor and Members
of the City Commission
RECOMMENDATION:
DATE: MAY 2 3 2000 FILE:
SUBJECT: Authorizing Execution of Consent Order
REFERENCES. Commission Meeting of June 8, 2000
ENCLOSURES:
The administration recommends that the City Commission adopt the attached resolution authorizing the
City Manager to execute a Consent Order, in substantially the attached form, with the State of Florida,
Department of Environmental Protection, to provide for resolution to the matter of dredging without
benefit of a valid permit from Department of Environmental Protection. This Resolution further
authorizes the City Manager to take any and all steps necessary, and execute necessary documents, to
perform the corrective actions outlined in the consent order.
BACKGROUND:
The City of Miami reconstructed docks on submerged lands located adjacent to 2640 South Bayshore
Drive, Miami, Florida. During an inspection by the Department of Environmental Protection ("DEP") on
July 16, 1998, DEP discovered that approximately 250 cubic yards of material had been dredged on or
before June 9, 1998 without benefit of a valid permit from DEP. This resulted in the imposition of fines
in the amount of $21,000 pursuant to Section 373.430, Florida Statutes and Rule 62-343.050, Florida
Administrative Code, and $500 for costs and expenses incurred by DEP. Representatives of Public
Works and DEP met to determine a resolution to this matter. DEP agreed to permit the City to conduct
an in-kind penalty project in lieu of paying a fine. The in-kind project must have -a value of at least
$31,500. Public Works identified an existing funded project entitled Wagner Creek Phase IV with an
estimated cost of $400,000. While the project cost is greater than that required, this project is already
funded and consequently would not result in an additional expenditure by the City. DEP accepted this
based upon the fact the City agreed to move the construction schedule of the project forward to occur
now rather than later.
CAG: I113 Consent Ord CC