07/18/1998
AGREEMENT
This Agreement is entered into by Cudjoe Enterprises, Inc., a Florida corporation ("Cudjoe
Enterprises"); Monroe County; and the State of Florida, Department ofCommunit~Affairs f[i,CA),
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pursuant to Section 380.032(3), Florida Statutes (1997). ~ ;t,. c- ;=
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WHEREAS, Cudjoe Enterprises is the owner and operator of property l~t~in Uh~
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County, Florida, which is now, and has been for many years, used for limestone quarrying, commonly
known as the Cudjoe Key Quarry. Cudjoe Enterprises purchased the subject property from CTB, Inc.
("CTB") on December 5, 1994; prior to that time, Tarmac Florida Inc. ("Tarmac") was the mining
operator at the quarry.
WHEREAS, Monroe County issued to Cudjoe Enterprises' predecessor in interest Mining
and Excavation Permit No. 9010000520, and Blaster and User Permit No. 9010000519 for the
Cudjoe Key Quarry, and issued extensions and renewals for these permits on March 20, 1990.
WHEREAS, DCA :filed an appeal of the extension of the permits, following which a
Settlement Agreement was signed on March 21, 1991, placing additional conditions on the
operations.
WHEREAS, DCA, Monroe County, and Tarmac Florida, Inc. are signatories to the
Settlement Agreement;
WHEREAS, Cudjoe Enterprises purchased the quarry in 1994, and continued operations
based on the fact that the Settlement Agreement authorized their continued operation of the quarry
as long as conditions ofthat Agreement were met.
WHEREAS, certain terms and conditions set forth in the Settlement Agreement relating to
the duties and responsibilities of the parties are in need of further clarification;
WHEREAS, Cudjoe Enterprises, Monroe County, and the DCA desire to amicably resolve
issues in question now and for the future regarding Cudjoe Enterprises' right to complete the
approved mining and excavation plans for the Cudjoe Key Quarry.
NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter
set forth, the parties hereto agree as follows:
I. Quarry Operation
1. Geo~aphic Scope. The geographic scope of this Agreement is defined in Attachment 2
of Exhibit 1.
2. Completion Date. All mining activities and restoration will be complete within 10 years
of the effective date of this Agreement.
3. Zoning. All uses other than rockmining and related activities, present and future, of the
subject property will be consistent with the zoning in effect at the time applications for any such use
are submitted to Monroe County.
4. Dimensions. Due to a voluntary decrease in the desired area to mine, the final excavation
size will be no larger than 33.5 acres (Attachment 2 of Exhibit 1), representing a reduction of7.8
acres from that previously permitted. Correspondingly, property line setbacks will be modified to
those shown on Attachment 2 of Exhibit 1. The depth of excavation will not exceed 60 feet.
5. Blasting. Cudjoe Enterprises will conduct no blasting operations without first acquiring
all applicable permits from local, State or federal agencies.
6. Renewal of Permits. Cudjoe Enterprises will maintain and renew all required County
permits annually during the term of this agreement.
II. Restoration and Reclamation
1. Cudjoe Enterprises has agreed to revise the restoration and reclamation plan incorporated
into the 1991 Settlement Agreement.
2. The revised restoration plan (Exhibit 1) will involve creation of more than 8.6 acres of
additional endangered species habitat through removal of existing berms and fill to surrounding
wetland elevation.
3. Special Conditions. The ACOE has imposed special conditions upon the pending permit
renewal, in coordination with wildlife agencies, which link restoration performance standards to a
specific timetable related to the issuance date of the regulatory permits. Cudjoe Enterprises is in
agreement with these conditions, which are in addition to the berm planting plan required by the 1991
DCA Settlement Agreement (Attachment 5 of Exhibit 1). Therefore, these conditions are
incorporated in the restoration plan (Attachment 3 of Exhibit 1).
2
III. Miscellaneous
1. Caveat. The parties acknowledge that they have entered into this Agreement solely in the
spirit of compromise. This Agreement shall not be deemed to constitute a waiver of any party's
position with regard to the proper interpretation of the Monroe County Code, and shall not be given
precedencial effect with regard to any other permit issued by Monroe County.
2. Duplicate Ori~inals. This Settlement Agreement may be executed in any number of
originals, all of which evidence one Agreement, and only one of which need be produced for any
purpose.
3. Enforcement. This Agreement may be enforced by any party as provided in Chapter 380,
Florida Statutes, or as otherwise allowed by law. In the event of breach of this Agreement, or if this
Agreement is based upon materially inaccurate information, the Department may terminate this
Agreement or file suit to enforce this Agreement as provided in Sections 380.11, Florida Statutes,
including a suit to enjoin all development.
4. Scope of Authority. This Agreement affects the rights and obligations ofthe parties under
Chapter 380, Florida Statutes, authorized by this Agreement.
5. Entirety of Agreement. The parties further agree that this Settlement Agreement contains
the entire and exclusive understanding and Agreement among the parties and may not be modified
in any manner except by an instrument in writing and signed by the parties.
6. Bindin~ Effect: Recordation of Agreement. This Agreement is intended to and shall create
a covenant running with the land, and shall be binding on the parties, their heirs, successors and
assigns. Within ten (10) days after the signing of the Agreement by all parties, Cudjoe Enterprises
shall record this Agreement in the public records of Monroe County, Florida, and shall promptly
provide proof of recordation to Monroe County and the Department, including the official records
book and page where this Agreement is recorded. Proof of recordation shall be furnished by hand
delivery or U.S. Mail, postage prepaid, to Monroe County by directing same to the Monroe County
Planning Director, Growth Management Division, Marathon Regional Service Center, 2798 Overseas
Highway, Suite 400, Marathon, Florida 33050; and to the Department by directing same to the
Growth Management Administrator, Florida Department of Community Affairs, 2555 Shumard Oak
Boulevard, Tallahassee, Florida 32399-2100, with a copy to the DCA Keys Field Office, Marathon
Regional Service Center, 2796 Overseas Highway, Suite 212, Marathon, FL 33050.
3
7. Release: Costs and Attorneys Fees. Each party hereto releases the other from any and all
claims or demands arising out of the subject Agreement. Each party bears its own costs and attorney
fees incurred in connection with this proceeding.
8. Effective Date. The effective date of this Agreement is that date when the last party
hereto signs a counterpart of this Agreement. However, this agreement shall not be effective unless
all parties execute within 90 days of the first signature.
IN WITNESS WHEREOF, the parties have duly executed this Agreement and have agreed
to be bound by its terms.
CUDJOE ENTERPRISES, INe.
By:
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Date: 6- (1-'2~
Ron McPhall, President
FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
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ATTEST: DANNY l. KOLHAGE, OERK
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By:
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Carol Forthman, Director
Division of Community Planning
MONROE COUNTY
BY:\~:: ~~ ?--It-r8
hck Le:cloH, Mayor PR-O '(
4
EXHIBIT 1
May 12, 1998
CUDJOE ENTERPRISES, INC.
Restoration Plan for Cudjoe Key Quarry
The following restoration plan was developed through coordination with the following representatives
of public agencies:
· Steve Klett, U.S. Fish and Wildlife Service (USFWS)
. Charles Schnepel, U.S. Army Corps of Engineers (ACOE)
. Phil Frank, Florida Game and Fresh Water Fish Commission (FGFWFC)
· Randy Grau, Florida Department of Environmental Protection (DEP)
. Rowena Garcia, Florida Department of Community Affairs (DCA)
Location and Site History
The Cudjoe Key Quarry is located to the north of U.S. Highway 1 on Cudjoe Key. The property is
surrounded by wetlands on the north, south and west, and bordered by Blimp Road to the east. The
quarry has been actively mined for limestone rock for many years.
Wetland permits were issued by the Florida Department of Environmental Regulation (now
Protection) in 1998 and the ACOE in 1989. Attachment 1 consists of Figure 2 in these permits, and
shows the final excavation size approved at that time. It also shows required restoration work, which
included removal ofbenns along the north and west property lines and two berm areas extending
between the road right-of-way and the pit on the east, for the purpose of restoring full tidal
connection to the wetlands within these berms and thereby enhancing the wildlife habitat value.
All of this work was completed in accordance with the permits. One problem, however, was that the
permits did not allow removal of mangroves, and, therefore, it was necessary for remnants of the
berms to be left in place, which impedes tidal flow and reduces the effectiveness for habitat
restoration.
Cudjoe Enterprises, Inc. purchased the property in late 1994. The DEP and ACOE permits had
expired in 1993 and 1994, respectively, and Cudjoe Enterprises retained Sandra Walters, Consultant
(SW) to apply for new permits for expansion of the quarry. Several meetings and site visits with the
USFWS and FGFWFC were conducted, and resulted in a revised site plan which includes
substantially more habitat restoration than permitted previously.
Attachment 2 consists of Figure 4 in the new permit sketches, which shows both the existing
conditions and proposed changes to the site. The existing deep mine area covers a total of 18.411
acres. There is an existing fill pad which surrounds the deep mine, from which draglines remove
material from the excavation, and berms presently separate the mine from surrounding wetlands.
The final mine configuration would include excavation of two existing wetland areas onsite contained
within the existing berm, located along the southwest and north boundaries. Both of these areas were
scraped down during earlier mining operations and now possess little to no habitat value, and consist
of approximately 4.187 acres. The majority of the existing fill pad around the deep mine area,
consisting of 10.916 acres, which is completely scarified, is also included in the new mine
configuration. This results in a final total deep mining area of 33.514 acres. The earlier permits
approved a final deep mining area of 41.3 acres; therefore, the new plan is a 7.8 acre reduction from
that previously permitted.
Restoration Plan
Two areas which were designated in the previous DEP and ACOE permits for mining will now be
included in restoration plans for the site. One is located in the approximate center of the western
boundary of the property, and the second is along the entire southern boundary (excluding a section
of berm already removed as part of the earlier restoration work). The remainder of the mitigation
project consists of removal of an upland berm along the southeast boundary. In addition, the two
benns at the north of the property are located approximately 50 feet further south than specified by
the original permits, and they will remain in place, resulting in a small amount of additional mitigation
acreage from that originally calculated. The total additional restoration, beyond that provided for in
the earlier permits, is 8.654 acres.
The specific fashion in which this restoration is accomplished is defined in Attachment 3. These
conditions are derived from conditions developed for the pending ACOE permit, and are modified
to provide for review and approval of certain terms by DCA and Monroe County, as signators to this
settlement agreement. These conditions provide for a specific compliance schedule for restoration
linked either with execution of this settlement agreement or acquisition of regulatory permits,
including a final survey and preparation and recording of a conservation easement for all lands within
restoration areas. The conditions also provide for removal of mangroves and other wetland plants
where they encroach on existing fill substrate to be restored to surrounding wetland elevations; clean
up of the site; removal of all exotic vegetation on the property; and installation of additional culverts
under the access road to the quarry.
The final berm around the deep mine will include a littoral zone, as depicted in Attachment 4 (Figure
6 of new permit sketches), to provide some submerged habitat within the rockmine itself, and also
to provide a shelfas a safety measure for wildlife or people to climb out of the mine. This safety shelf
is also maintained throughout the mining process.
During a March 31, 1998 site visit with biologists Rowena Garcia (DCA) and Phil Frank (FGFGWC),
a concern was raised regarding lowering the proposed berm height to reduce the likelihood of
invasion of exotic vegetation once mining is complete. Consultation with the engineer for the project,
Paul Larsen, P.E., finds that reducing the berm elevation from 3 feet to 2 feet will still result in a 0.41
foot buffer for retention of the 25 year 3 day storm event, as required by the South Florida Water
Management District MSSW Permit Manual. Therefore, this change will be made in the design
before submittal to the regulatory agencies (see note on Attachment 4).
An agreement was executed with DCA and Monroe County in 1991, in which planting of vegetation
along the berm is required following closure of quarry operations. An engineering drawing showing
how this would be implemented was submitted by the operator at the time, Tarmac, Inc., and was
incorporated into the County records (Attachment 5). This plan calls for planting 170 native trees
Cudjoe Key Quarry Restoration Plan - Page 2
at 10 foot centers along the western berm and 85 native trees at 10 foot centers along the southern
berm. On the March 31, 1998 site visit described above, it was agreed that the planting of native
trees along the berm would be continued along the eastern berm, to provide a visual buffer from the
adjacent roadway. Therefore, the following planting plan is incorporated in the restoration plan for
the Cudjoe Key Quarry:
Boundary Length (in feet) # of Trees
West 1000 100
South 835 85
East 2,170 217
TOTAL 402
Trees planted will be no smaller than 3 feet in height, and will consist of Buttonwood (Cococarpus
erecta) or Seagrape (Coccoloba uvifera) on the west and south berms. Jamaica dogwood (Piscidia
piscipula), Catsclaw (Pithecellobium unguis-cati), and Blackbead (Pithecellobium guadalupense)
are added to the list of tree species which may be planted on the east berm.
The special conditions also provide for possible eventual complete removal of the berm to
surrounding wetland elevations, or continued removal of exotic vegetation, following cessation of
excavation or any other use of the property.
Cudjoe Key Quarry Restoration Plan - Page 3
ATTACHMENT LIST
Attachment
Description/Significance
1
Figure 2 from 1988 DEP permit and 1989 ACOE pennit, showing previously
approved excavation boundaries and restoration
2
Figure 4 from new pennit sketches, showing new excavation boundaries and
restoration
3
Special Conditions to Restoration Plan
4
Figure 6 from new permit sketches, showing cross section of final berm
and littoral shelf around excavation
5
Planting plan from 1991 DCA settlement agreement
ATTACHMENT 1
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ATTACHMENT 3
Restoration Plans for Cudjoe Key Quarry
SPECIAL CONDITIONS
1. Cudjoe Enterprises, with the assistance of the Department of Community Affairs and Florida
Game and Fresh Water Fish Commission, will work with owners of adjacent property extending
from the southwest corner of the parcel which contains cement debris and a fill road, to obtain
written permission for removal of these materials and restoration of the area to surrounding
wetland elevations.
(a) Within 30 days of the execution ofthis settlement agreement, Cudjoe Enterprises will provide
a letter to the following two owners of property within the Unrecorded Plat of Sawyer
Property on Cudjoe Key, which defines the location, scope of work, time frame within which
the work will be accomplished, and any other terms necessary regarding liability, etc., for
execution by these owners to allow removal of the debris and fill road from the wetlands:
· Ms. Janet Cates, owner oflots N, M, L and I
· Associated Marine Institutes, Inc., owner of lots J and K
(b) It: within 120 days of the provision of the letter to the adjacent property owners, the parties
are unable to come to terms regarding permission for this work, then the restoration plan as
provided for on Attachment 2 of Exhibit 1 will apply. However, if at any time prior to
expiration of the 120 day period the adjacent property owners affirmatively refuse to grant
permission for the removal of the debris and fill road in the adjacent wetlands, then the
restoration described on Attachment 2 of Exhibit 1 will apply.
(c) If the adjacent property owners do execute the permission letter within 120 days, then the
restoration plan will be modified to substitute removal of the debris and fill road, as described
in 1. Above, for removal of the vegetated berm along Blimp Road, as described in 6(a) below.
In addition, replanting of the eastern berm will be removed from the restoration plan, as it will
no longer be necessary because existing visual screening from the road will be left in place.
2. Cudjoe Enterprises will provide a survey, not more than 60 days after receipt of all State and
Federal regulatory permits, of the mitigation area depicted on the Plan View of Existing
Conditions signed on March 10, 1997 by Mr. Paul Larsen and representing 8.5 acres more or less
(Attachment 3, Figure 4), or as modified by 1. above.
3. Cudjoe Enterprises will provide, within 60 days from the date of regulatory permit issuance, a
legally sufficient conservation easement to ensure that the identified wetland areas will remain in
their natural state in perpetuity. The conservation easement will encompass approximately 8.5
acres of natural and restored wetlands. These areas will not be disturbed whatsoever by dredging,
filling, land clearing, agricultural activities, planting, or other construction work. The permittee
agrees that the only future utilization of the preserved area in question will be as a purely natural
area.
(a) Cudjoe Enterprises will prepare the proposed conservation easement, including a legal
description, to include scale drawings, of the area in question and furnish the same to the legal
1
counsels of the Department of Community Affairs and Monroe County, for legal review and
approval.
(b) Within 30 days of approval by the Department of Community Affairs and Monroe County
of the proposed easement,Cudjoe Enterprises will record the easement in the public records
of Monroe County, Florida. A certified copy of the recording, plat, and verification of
acceptance from the grantee will be forwarded to the Department of Community Affairs and
Monroe County. The recording and notification to the Department must be made prior to the
discharge of any additional fill authorized under Federal or State pennits.
4. Cudjoe Enterprises will remove berms, roads and disturbed areas within the mitigation area to
surrounding wetland elevations, as depicted in Attachment 3, Figure 4, for the southern edge of
the borrow pit and the central northwestern portion, consisting of 5.717 acres more or less, . or
as modified by 1. above, within a period of six months of receipt of all regulatory pennits.
5. Cudjoe Enterprises will construct a containment berm along the south side of the proposed rock
mine wide enough to accommodate heavy equipment. This berm will be completed prior to
expansion of mining operations.
6. Cudjoe Enterprises will enhance the existing wetland along Blimp Road south of the entrance
road into the rock mine and improve water circulation as follows:
(a) The vegetated berm along the west side of this wetland, consisting of2.937 acres more or
less, will be removed and the elevation returned to the surrounding wetland elevations within
a two (2) year period of receipt ofall regulatory pennits.
(b) Six (6) twelve inch culverts will be placed under the entrance road into the rock mine as
depicted on drawing entitled Location and Detail of Culverts Under Entrance Road, signed
and sealed March 10, 1997 by Paul Larsen (Attachment 3, Figure 6), prior to expansion of
mining operations.
(c) All fill will be removed to wetland elevations, which may include removal of wetland plants
which have encroached into the existing fill substrate.
7. A clean mining operation will be maintained to discourage the establishment of a black rat
population. Existing piles of trash will be removed within 90 days of execution of this settlement
agreement, in areas where no regulatory pennits are required. In areas where pennits are
required, these materials will be removed within 90 days of pennit acquisition. The site will not
be used for storage, except for mining material and functional mining equipment used on the site.
However, nothing in these special conditions will prevent Cudjoe Enterprises from applying for
pennits to store other materials allowed under applicable zoning.
8. All exotic vegetation, to include Australian pine and Brazilian pepper, will be removed from areas
not proposed for mining within 30 days of acquisition of applicable pennits. The site shall be
maintained exotic-free over the life of the project.
2
9. One of the following three alternatives must be chosen by Cudjoe Enterprises and implemented
within two years after the expiration of the 10-year life of the quarry, or closure of the mining
operation, whichever is earlier.
(a) The berm surrounding the deep excavation will be removed to surrounding wetland
elevations, if all regulatory permits can be acquired. In this case, the berm planting plan
described in the restoration plan will not be required.
(b) A new pennitted use for the property will be in place, which will also provide for continued
removal of exotic vegetation on the property.
(c) A trust :fund in the amount of$10,000 will be established for continued removal of exotic
vegetation, with or in favor of an agency or organization acceptable to the Department that
is willing to undertake the task of removal.
3
ATTACHMENT 4
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