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06/10/1998 Agreement;Dannp V Rotbage BRANCH OFFICE CLERK OF THE CIRCUIT COURT 3117 OVERSEAS HIGHWAY MONROE COUNTY MARATHON, FLORIDA 33050 500 WHITEHEAD STREET TEL (305) 289-6027 KEY WEST, FLORIDA 33040 FAX (305) 289-1745 TEL. (305) 292-3550 FAX (305) 295-3660 MEMORANDUM TO: Bob Herman Director of Growth Management Attention: Isabel T. Reid, Senior Staff Assistant FROM: Ruth Ann Jantzen Deputy Clerk .11110i- DATE: June 24, 1998 BRANCH OFFICE 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 At the June 10, 1998 County Commission Meeting, the Board granted approval and authorized execution of a Settlement Agreement between Monroe County, the Florida Department of Community Affairs, and Toppino's, Inc. Enclosed please find three duplicate originals, executed on behalf of Monroe County. Please be sure that one fully executed copy is returned to this office as soon as possible. If you have any questions regarding the above, please do not hesitate to contact this office. cc: County Attorney Finance County Administrator, w/o document File County of Monroe Growth Management Division 2798 Overseas Highway Suite 400 Marathon, Florida 33050 Voice: (305) 289-2500 FAX: (305) 289-2536 CERTIFIED MAIL — RETURN RECEIPT REQUESTED Stephanie Gehres Kruer General Counsel Florida Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 RE: Toppino's, Inc. — Settlement Agreement Dear Stephanie: Board of County Commissioners Mayor Jack London, Dist. 2 Mayor Pro Tern Wilhelmina Harvey, Dist. 1 Commissioner Shirley Freeman, Dist. 3 Commissioner Keith Douglass, Dist. 4 Commissioner Mary Kay Reich, Dist. 5 June 26, 1998 Enclosed please find three (3) duplicate originals of the above -referenced Settlement Agreement which have been executed on behalf of Toppino's, Inc. and Monroe County. Please have all three originals signed on behalf of the Department and return one fully executed original to me for Monroe County's files. The third original should be forwarded to Kenneth J. Plante, Esq. for Toppino's, Inc. Thank you for your assistance. If you have any questions, please call me at (305) 289-1517. Thank you. Sincerely, Isabel T. Reid, Senior Administrative Assistant Growth Management Division /ir Enclosures (3) cc: Mr. Frank Toppino Kenneth J. Plante, Esq. Jam Hendrick, County Attorney th Ann Jantzen, Deputy Clerk Ty Symroski, DCA, Marathon STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: EXTENSION OF BUILDING PERMITS (BIOLOGICAL PERMIT - MINING Case No. 90-923 AND EXCAVATION) NO. 9010000515 and 9010000519 ISSUED TO TARMAC FLORIDA, INC., BY MONROE COUNTY IN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN SETTLEMENT AGREEMENT This Settlement Agreement is entered into by the State of Florida, Department of Community Affairs ("Department"), Monroe County ("County") and Toppino's Inc., pursuant to Section 380.032(3), Florida Statutes (1997). RECITATIONS WHEREAS, on May 16, 1991, the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, entered a Final Order accepting an Agreement ("Agreement") in the above -styled cause, a copy of which is attached hereto as Exhibit A; and WHEREAS, the Department of Community Affairs, Monroe County, Tarmac Florida, Inc., and C.T.B., Inc, are signatories to the Agreement; and WHEREAS, Toppino's, Inc. purchased a portion of the property included in the Agreement that is subject to the Final Mining Plan and Proposed Reclamation Plan attached to the Agreement as Exhibits B and C, respectively; and WHEREAS, the Agreement was intended to govern the excavation and subsequent 1 reclamation and restoration of the Rockland Quarry (the "quarry") for the life of the quarry; and WHEREAS, the Agreement placed no restrictions on the time frame for termination of the limestone resource extraction operation of the quarry; and WHEREAS, certain terms and conditions set forth in the Agreement relating to the duties and responsibilities of the parties are in need of greater particularity; and WHEREAS, it is the intent of the parties hereto to amend the Agreement to clarify the duties and responsibilities of the parties in the context of the changes which have taken place over the past six (6) years; and WHEREAS, it is the desire of the parties to review the Proposed Reclamation Plan for the quarry as set forth in the Agreement and to revise said Reclamation Plan as necessary; and WHEREAS, the parties desire to preserve the overall intent of the Agreement with respect to the continued operation of the Rockland Quarry and its subsequent reclamation and restoration; NOW THEREFORE, in consideration of the premises and the mutual covenants set forth herein, the parties hereto agree as follows: I. OPERATION OF THE QUARRY Toppino shall be authorized to continue operation of the Rockland Quarry under the terms and conditions set forth in the Mining and Excavation Permit No. 9010000515 issued by Monroe County on March 20, 1990, for a period of 120 days beginning on September 3, 1997, and continuing through January 4, 1998. Said time frame shall be extended as necessary for the continued operation of the quarry in the event that the permits specified in paragraphs 5 and 6 herein have not been issued. 2. The use of explosive devices in the course of mining and excavating limestone at the quarry is strictly prohibited. 3. Toppino shall be allowed to excavate limestone on the site to a depth of thirty-five (35) feet below the natural ground level. 4. Within five (5) days of execution of the Settlement Agreement, Toppino shall place the sum of Three thousand five hundred dollars ($3,500) into an escrow account mutually acceptable to the Department, the County and Toppino. This amount represents a severance fee to be paid to the County for material excavated during the first quarter of calendar year 1997, and is based upon a value set by Monroe County of Three dollars and fifty cents ($3.50) per cubic yard multiplied by ten thousand (10,000) cubic yards. By agreeing to place this sum into an escrow account and its subsequent release to Monroe County, Toppino makes no representation as to the validity of the value of the raw material nor any admission as to any claim the County may have to collect such a severance fee. 5. Within seven (7) days of receipt of notice of the deposit of the Three thousand five hundred dollars ($3,500) into the escrow account, the County shall, with the concurrence of the Department, issue an after -the -fact renewal of Monroe County Mining and Excavation Permit No. 9010000515 to Toppino for the period October 1, 1994, through June 30, 1997, at which time the Three thousand five hundred dollars ($3,500) held in escrow shall be released to the County. 6. Upon receipt of a permit application fee of Five hundred dollars ($500) from Toppino, the County shall issue a renewal of Monroe County Mining and Excavation Permit No. 9010000515 to Toppino's, Inc., nunc pro tunc, from July 1, 1997, said permit to be valid for a period of one year. 3 7. Mining and Excavation Permit No. 9010000515 shall be required to be renewed on an annual basis for the continued mining operations at the quarry. Toppino shall be responsible for the timely annual filing with the County for the renewal of its mining permit at an annual application fee of Five hundred dollars ($500). 8. Any renewal of Monroe County Mining and Excavation Permit No. 9010000515 shall be reviewed under the conditional use requirements of Monroe County Land Use Regulations, Division 3, sections 9.5-61 through 80, as they existed on May 16, 1991, the date of the Agreement, and further provided that compliance with the terms and conditions of the permit as well as the Settlement Agreement shall be a presumption of compliance with the conditional use requirements. II. RECLAMATION AND RESTORATION 9. Within thirty (30) days of the execution of this Settlement Agreement, Toppino shall submit to the Department and to the County a phased reclamation and restoration plan (the "Plan") for the Rockland Quarry. The time frame for completing on -site excavation and subsequent reclamation and restoration shall be no longer than twenty (20) years from July 1, 1997. 10. In developing the Plan, Toppino shall take into consideration: a. The setback and shoreline sloping requirements set forth in Chapter 62C-36, Florida Administrative Code. b. The use of a portion of the site for the processing and recycling of clean debris as defined by Section 403.703(33), Florida Statutes, and for the use of a rock pit on a portion of the site for the disposal of clean debris. 4 C. Phasing and sloping requirements for reclamation and restoration to accommodate the use of a rock pit for receiving clean debris. d. The identification and use of a portion of a rock pit as a suitable location for the proposed placement of houseboats to be used as low-cost single family dwellings, and the sloping requirements to accommodate such use. 11. Any use of all or a portion of the site for the recycling and disposal of clean debris or the location of affordable low-cost housing is predicated upon Toppino obtaining all necessary state and local permits for each activity. 12. In exchange for the County's cooperation in obtaining the necessary permits for use of a portion of the site for the recycling and disposal of clean debris, Toppino will waive all tipping charges for clean debris delivered to the site by the County. 13. Monroe County and Toppino are mutually desirous of exploring usage of all or a portion of the rock pits at the site for the purpose of locating affordable low-cost housing for the Monroe County/Key West area. Any use of the site for such purpose shall include installation of a sewage treatment plant that would serve both the affordable low-cost housing units located at the site as well as the adjacent residential areas along Calle Uno and Calle Dos, whose residents are currently utilizing septic tanks. 14. Within thirty (30) days of receipt of the Plan from Toppino, the Department and the County shall submit to Toppino, in writing, their comments regarding the Plan. Toppino shall have twenty (20) days in which to respond to the concerns raised by the Department and the County. If, within thirty (30) days of receipt of Toppino's response, the parties hereto are unable to reach closure on a Reclamation and Restoration Plan, the parties shall refer the matter to mediation. Should mediation be necessary, the parties shall have ten (10) days in which to select a mediator. Mediation shall be completed within twenty (20) days thereafter. This time frame may be extended by mutual written agreement of the parties. 15. Upon approval by the parties hereto, the Plan shall be incorporated into, and made a part of, the Settlement Agreement and shall supersede the Proposed Reclamation Plan included as Exhibit C to the Agreement. III. MISCELLANEOUS PROVISIONS 16. All modifications to the Settlement Agreement shall be in writing and signed by the parties hereto or their assigns. 17. Toppino shall be given written notice of any alleged violation of any of the terms and conditions of Mining and Excavation Permit No. 9010000515, and be allowed thirty (30) days in which to cure the alleged violation prior to either the County or the Department initiating any judicial or administrative enforcement action. 18. The parties hereto or their assigns shall have the right to enforce the terms and conditions of the Settlement Agreement in a court of competent jurisdiction. 19. Each of the parties hereto shall be given written notice of any alleged breach of any of the terms and conditions of the Settlement Agreement and be allowed thirty (30) days in which to cure the alleged breach prior to any party initiating any legal action to enforce the provisions of the Settlement Agreement. 20. Venue for any disputes arising out of the enforcement, application and interpretation of any provisions of the Settlement Agreement shall lie in Monroe County. 21. The parties agree to fully cooperate with one another in implementing the rom requirements of the Settlement Agreement. 22. Within thirty (30) days of execution of the Settlement Agreement, the County shall issue a Certificate of Appreciation of the Community for service performed by Toppino's, Inc. for the citizens of Monroe County. 23. Each party hereto shall be responsible for their respective costs and attorneys' fees incurred under the Settlement Agreement. IN WITNESS WHEREOF, the parties have duly executed this Stipulation and have agreed to be bound by its terms, this 4(day of June, 1998. DEP.AA-'TMENT OF • IAFFAIRS TOPPINO'S, INC. toppino.32 7 f COUNTY (SEAL) ATTEST: DANNY L. KOLHAGE, gERK BY APPROVED AS TO AND LEGAL Stff B Office