Item 8AAGENDA ITEM # 8A
JANUARY 12, 2009
AGREEMENT
AGREEMENT made and entered into this day of December, 2008, at Atlantic
Beach, Duval County, Florida; by and between the CITY OF ATLANTIC BEACH, a Florida
municipal corporation, 800 Seminole Road, Atlantic Beach, Florida 32233 (hereinafter referred to
as the "City"), and KENNETH M. BRANHOLM, 11433 Saints Road, Jacksonville, Florida
32246 (hereinafter referred to as "Branholm").
WITNESSETH:
WHEREAS, Branholm was previously ordered by the Tree Conservation Board of the City
of Atlantic Beach to provide mitigation of 54" of trees, or the money equivalent thereof in the
amount of $6,318.00, pursuant to removal of trees at 342 5`h Street, Atlantic Beach, Florida 32233,
which property is legally described as follows:
Lot 15, Block 6, Subdivision "A", Atlantic Beach, according to the map
or plat thereof as recorded in Plat Book 5, page 69, of the current public
records of Duval County, Florida.
WHEREAS, Branholm appealed the Order of the Tree Conservation Board in regard to
said mitigation, but has agreed to terms hereof after appearing before the Atlantic Beach City
Commission on November 24, 2008, and
WHEREAS, Branholm previously owned the above described property, which since has
been conveyed to its current owners, Thomas DeGiovanni and Fiona McDonald, his wife, pursuant
to a Warranty Deed dated April 28, 2008, and recorded in O.R. Book 14490, page 1908, Duval
County public records, and
WHEREAS, Branholm desires to plant trees for the required mitigation on said properly
for the owners in connection with their construction of a new residence on said property. It is not
clear, however, if said properly will allow for complete mitigation of 54" of trees after design and
construction of said residence, and
WHEREAS, both parties intend for the full mitigation owed by Branholm to be paid to the
City by planting of trees on aforesaid property or payment into the City's tree fund, or a
combination of both.
AGENDA ITEM # 8A
JANUARY 12, 2009
NOW THEREFORE, in consideration of the mutual covenants and agreements as set
forth herein, and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by both parties, it is
AGREED as follows:
1. Branholm shall plant 54" of trees (38" palm trees, 10" oak trees, and 6" of other
hardwood trees), on the property located at 342 5th Street, Atlantic Beach, Florida 32233, which is
currently owned by Thomas DeGiovanni and Fiona McDonald, his wife. In the event Branholm is
unable to plant the entire 54" of trees on said property, due to the construction on said property of a
residence for the current or any subsequent owners, or for any other reason whatsoever, Branholm
shall pay mitigation into the City's tree fund for any balance owed on mitigation.
2. Branhohn shall plant said trees and/or make payment into the tree fund prior to the
date a fmal certificate of occupancy is issued by the City for any residence built on the property at
342 5`" Street, Atlantic Beach, Florida 32233. The failure of Branholm to plant said trees or make
said payments before the date a certificate of occupancy is issued shall not delay issuance of said
certificate of occupancy to the owners of said property, provided they have met all other
requirements of the City, but Branhohn's failure to make said plantings and/or payments by that
time will be a violation of this Agreement. In any event, and notwithstanding any other language in
this Agreement, all trees shall be planted and/or payments made on or before December 31, 2010.
3. This Agreement does not place a time limit for a residence to be constructed on the
property at 342 5~' Street, Atlantic Beach, Florida 32233, but this Agreement shall remain in place
even if said property is sold to another owner.
4. All trees planted by Branholm shall meet the following minimum standards.
(a) The trees shall meet the standards of Florida Number One defined in the
most current edition of the Grades and Standards for Nursery Plants, Parts I and II, published by the
Florida Department of Agriculture and Consumer Services.
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AGENDA ITEM # 8A
JANUARY 12, 2009
(b) Said trees shall be a species having an average mature crown spread of no
Iess than thirty (30) feet in northeast Florida.
(c) .Said trees shall have a minimum 2" caliper and a minimum of 10' in overall
height.
(d) Oaks used as replacement for removed protected oaks shall be 4" caliper or
greater.
5. All trees planted by Branholm shall be maintained by him by watering and
guaranteeing the trees for one (1) year after planting by Branholm. Branholm specifically agrees
that the City shall be able to enforce this provision personally against him, as opposed to the
property owners.
6. Any mitigation paid to the City under this Agreement by Branholm shall be at the
then existing rate of mitigation at the time of payment. The rate at the time of the execution of this
Agreement for mitigation is $117.00 per inch.
7. In the event of any litigation arisvng out of this Agreement, the prevailing party shall
be entitled to recover its reasonable attorney's fees and any costs incurred, including attorney's fees
on appeal.
8. Upon satisfactory completion of all terms and conditions of this Agreement by
Branholm, the parties shall mutually release one another in regard to all claims related to the Tree
Conservation Board and required mitigation thereunder.
9. `This Agreement shall be binding upon and inure to the benefit of the parties named
herein and their respective successors, heirs and assigns.
10. The above constitutes the entire agreement between the parties and there are no
other agreements, either verbal or written, except as expressly set forth herein. This Agreement
shall be governed by and construed according to the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have hereunto set their hands and official
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AGENDA ITEM le 8A
JANUARY 12, 2009
seals on the date and place first above written.
SIGNED AND SEALED IN OUR PRESENCE:
Witness print name:
Witness print name:
Witness print
Witness print name:
KENNETH M. BRANHOLM
CITY OF ATLANTIC BEACH, FLORIDA
By:
James R. Hanson, City Manager
Attest:
Donna Bartle, City Clerk