HomeMy WebLinkAbout2017-141FOURTH PHASE
CASH DEPOSIT AND ESCROW AGREEMENT
FOR
RESTORATION
RE: WILD TURKEY SAND MINE
SP -MA -07-10-34 (2004120019-59695)
THIS AGREEMENT is entered into this 3rd day of October ,
2017, by and between Wild Turkey Estates of Vero, L.L.C., a Florida limited
liability company (Developer), Duane C. Pankratz, party posting security
(Funder), and INDIAN RIVER COUNTY, a political subdivision of the State of
Florida (County):
WITNESSETH:
WHEREAS, Developer is mining certain property within Indian
River County and is required to post bonds insuring compliance with the
requirements of the approved mining site plan; Indian River County Code
Section 934.07; and restoration of the site; and
WHEREAS, in March, 2011, Funder posted $83,867.74 cash to
guarantee compliance with the restoration requirements of the approved mining
site plan for Phase 1; and in May, 2011 the posted security was reduced to
$67,710.90 due to a portion of the restoration requirements being already posted
with Sebastian River Improvement District for canal right-of-way restoration; and
WHEREAS, Phase 1 was restored to the satisfaction of the County
based on site inspection and the posted funds were transferred to the second
phase; and
WHEREAS, the second phase was restored to the satisfaction of
the County based on site inspection, and the Developer transferred the entire
$67,710.90 cash from the second phase to the third phase; and
WHEREAS, the third phase has now been restored to the
satisfaction of the County based on site inspection, and the Developer is now
desirous to move into the fourth phase; and
WHEREAS, Developer and Funder wish to transfer the entire
$67,710.90 cash being held by County, from the third phase to the fourth phase,
NOW, THEREFORE, in consideration of the agreements,
promises, and covenants set forth herein, and other good and valuable
considerations, the parties hereto agree as follows:
1. The Developer and Funder agree to the transfer of the entire
$67,710.90 from the third phase to the fourth phase, as depicted on the attached
map; said sum shall continue to be held in escrow by the County Office of
Management and Budget (Escrow Agent), but earmarked/obligated for the fourth
phase, subject to the terms, conditions and covenants of this escrow agreement
as assurance that Developer shall perform in all respects the obligations of
Indian River County Code Chapter 934 with respect to site restoration.
2. Upon completion of the restoration of each mine phase, the
Developer or Funder may obtain a disbursement from the escrow account by
making a written request to Indian River County's Community Development
Director. The request shall specify the amount of disbursement, and shall be
accompanied by a sealed certificate from Developer's engineer that the mine is
in compliance and has been restored in accordance with the most recent set of
plans approved and on file with the County.
3. Within seven (7) working days after receipt of a disbursement
request, the Community Development Director shall cause an inspection of the
work for which payment is sought. If the Community Development Director is
satisfied in all respects with the condition of the site and certifications, the
Community Development Director shall deliver written notice to disburse to the
County Office of Management and Budget. Upon receipt of the notice to
disburse, the Office of Management and Budget shall make the disbursement
described therein directly to Funder (the party that posted the funds), or its legal
representatives, heirs, successors or assigns, absent bankruptcy, court order, or
an assignment.
4. Upon failure to perform all or any part of the obligations of
restoration and reclamation, including, but not limited to mine abandonment prior
to restoration, restoration not completed within the approved time frame,
restoration not consistent with the restoration plan and Chapter 934 of the Indian
River County Code, and restoration activity not consistent with permits issued by
other jurisdictional agencies, the County may utilize escrowed funds to achieve
restoration. All funds remaining in the escrow account at the time default is
declared by the County shall be available for use by the County. Said funds
shall be disbursed to the County upon receipt by the Office of Management and
Budget of a certified copy of a resolution of the Board of County Commissioners
stating that Developer has failed to comply with Indian River County Code
Chapter 934 restoration conditions of the mining approval, and that said funds
are necessary to achieve restoration. All funds disbursed to County in excess of
the final amount determined necessary by the County shall be returned to
Funder, its legal representatives, heirs, successors or assigns, absent
bankruptcy, court order, or an assignment, at the completion of site restoration.
5. Any interest earned during the term of escrow, less
administrative expenses, shall be disbursed at close of escrow unless necessary
for County to utilize in cure of developer's default.
7
6. The funds deposited hereunder exist solely for the protection,
use and benefit of the County and shall not be construed or intended in any way,
expressly or impliedly, to benefit or secure payment to any contractor,
subcontractor, laborer, materialman, architect, engineer, attorney or other party
providing labor, material, supplies, or services to Developer and/or Funder while
such funds remain subject to this escrow agreement. The County shall not be
liable to any of the aforementioned parties for claims against the Developer
relating to the approved mining site.
7. Alternate security, in the form of performance bonds or letters
of credit, may be substituted with the approval of the County Attorney.
8. This Agreement is the full and complete understanding of the
parties and shall not be construed or amplified by reference to any prior
agreement, discussion, or understanding, except as specifically mentioned
herein. This Agreement shall not be assigned without the express written
approval of the County. Any amendment, deletion, modification, extension, or
revision hereof or hereto shall be in writing, and executed by authorized
representatives of each party.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals. The effective date of this Agreement shall be the date of approval by
the Board of County Commissioners.
Signed in the presence of:
sign name
print name:
WILD TURKEY ESTATES OF VERO,
L.L.C., a Florida limited liability
compan
sign name:
print name:
Date:
Signed in th = • resence of:
sign nam
print name:
sign name:
print name:
Date:
3
Pankratz, Manag
Y�
Duane C. Pankratz
DEVELOPER
UNDER
BOARD OF COUNTY
COMMISSIONERS OF INDIAN RIVER
COUNTY, FLORIDA
*:
ATTEST: Jeffrey R. Smith, Clerk "" C approved:
of Court and Compf( er
'• FR COU��t
eph E. Flescher, Chairman
By: Otrilda�
Deputy Clerk
OFFICE OF MANAGEMENT
AND BUDGET
By: /
Michael Smykowski
OMB Director
October 3, 2017
(SEAL)
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
0371; Reingold
County Attorney
By:
4
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FOURTH PHASE IS LABELED AS PHASE 4 AND IS HIGHLIGHTED IN BLUE
FOURTH PHASE
CASH DEPOSIT AND ESCROW AGREEMENT
FOR
COMPLIANCE
RE: WILD TURKEY SAND MINE
SP -MA -07-10-34 (2004120019-59695)
THIS AGREEMENT is entered into this 3rd day of October ,
2017, by and between Wild Turkey Estates of Vero, L.L.C., a Florida limited
liability company (Developer), Duane C. Pankratz, party posting security
(Funder), and INDIAN RIVER COUNTY, a political subdivision of the State of
Florida (County):
WITNESSETH:
WHEREAS, Developer is mining certain property within Indian
River County and is required to post security insuring compliance with the
requirements of the approved mining site plan; Indian River County Code
Section 934.07; and restoration of the site; and
WHEREAS, in March, 2011, Funder posted $49,800.00 cash to
guarantee compliance with the requirements of the approved mining site plan for
Phase I; said Phase I having since been restored to the satisfaction of the
County based on site inspection, and the posted funds were transferred to the
second phase; and
WHEREAS, the second phase was restored to the satisfaction of
the County based on site inspection, and the Developer transferred the entire
$49,800 cash from the second phase to the third phase; and
WHEREAS, the third phase has now been restored to the
satisfaction of the County based on site inspection, and the Developer is now
desirous to move into the fourth phase; and
WHEREAS, Developer and Funder wish to transfer the entire
$49,800.00 cash being held by County, from the third phase to the fourth phase,
NOW, THEREFORE, in consideration of the agreements,
promises, and covenants set forth herein, and other good and valuable
considerations, the parties hereto agree as follows:
1. The Developer and Funder agree to the transfer of the entire
$49,800.00 from the third phase to the fourth phase, as depicted on the
attached map; said sum shall continue to be held in escrow by the County Office
of Management and Budget (Escrow Agent), but earmarked/obligated for the
fourth phase, subject to the terms, conditions and covenants of this escrow
agreement as assurance that Developer shall perform in all respects the
obligations of Indian River County Code Chapter 934 with respect to site plan
compliance.
2. Upon completion of the restoration of each mine phase, the
Developer or Funder may obtain a disbursement from the escrow account by
making a written request to Indian River County's Community Development
Director. The request shall specify the amount of disbursement, and shall be
accompanied by a sealed certificate from Developer's engineer that the mine is
in compliance and has been restored in accordance with the most recent set of
plans approved and on file with the County.
3. Within seven (7) working days after receipt of a disbursement
request, the Community Development Director shall cause an inspection of the
work for which payment is sought. If the Community Development Director is
satisfied in all respects with the condition of the site and certifications, the
Community Development Director shall deliver written notice to disburse to the
County Office of Management and Budget. Upon receipt of the notice to
disburse, the Office of Management and Budget shall make the disbursement
described therein directly to Funder (the party that posted the funds), or its legal
representatives, heirs, successors or assigns, absent bankruptcy, court order, or
an assignment.
4. Upon failure to comply with all the requirements of the site plan
approval, including but not limited to unapproved off-site discharge of water,
failure to confine hauling to approved hauling routes, operating in violation of the
safety/security plan, excavating within required setbacks, mining of additional
phases prior to restoration of the previous phase, and activity not consistent with
permits issued by other jurisdictional agencies; or if Developer fails to perform all
or any part of the obligations of restoration and reclamation, including, but not
limited to mine abandonment prior to restoration, restoration not completed
within the approved time frame, restoration not consistent with Chapter 934 of
the Indian River County Code, and restoration activity not consistent with permits
issued by other jurisdictional agencies, the County may utilize escrowed funds to
achieve compliance or restoration. All funds remaining in the escrow account at
the time default is declared by the County shall be available for use by the
County. Said funds shall be disbursed to the County upon receipt by the Office
of Management and Budget of a certified copy of a resolution of the Board of
County Commissioners stating that Developer has failed to comply with Indian
River County Code Chapter 934 site plan or restoration conditions of the mining
approval, and that said funds are necessary to achieve compliance. All funds
disbursed to County in excess of the final amount determined necessary by the
County shall be returned to Funder (the party that posted the funds), or its legal
representatives, heirs, successors or assigns, absent bankruptcy, court order, or
an assignment, at the completion of site restoration
2
5. Any interest earned during the term of escrow, less
administrative expenses, shall be disbursed at close of escrow unless necessary
for County to utilize in cure of developer's default.
6. The funds deposited hereunder exist solely for the protection,
use and benefit of the County and shall not be construed or intended in any way,
expressly or impliedly, to benefit or secure payment to any contractor,
subcontractor, laborer, materialman, architect, engineer, attorney or other party
providing labor, material, supplies, or services to Developer and/or Funder while
such funds remain subject to this escrow agreement. The County shall not be
liable to any of the aforementioned parties for claims against the Developer
relating to the approved mining site.
7. Alternate security, in the form of performance bonds or letters
of credit, may be substituted with the approval of the County Attorney.
8. This Agreement is the full and complete understanding of the
parties and shall not be construed or amplified by reference to any prior
agreement, discussion, or understanding, except as specifically mentioned
herein. This Agreement shall not be assigned without the express written
approval of the County. Any amendment, deletion, modification, extension, or
revision hereof or hereto shall be in writing, and executed by authorized
representatives of each party.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals. The effective date of this Agreement shall be the date of approval by
the Board of County Commissioners.
Signed in the presence of:
sign nam
print nam
sign name:
print name:
Date: �S
Signed in th
sign nam
print name:
/7
esence of:
WILD TURKEY ESTATES OF VERO,
L.L.C., a Florida limited liability
company
By.
Duane C. Pankratz
7 -.7-
nager
DEVELOPER
sign name:
print name:
Date: g _
a
Li
uane C. Pankratz
NDER
ATTEST:
BOARD OF COUNTY
COMMISSIONERS OF INDIAN RIVER
, COUNTY, FLORIDA
S
.
:�; • :*
i•
tv.�'°Q'�
2.
Jeffrey R. Smith;• BCC approved:
ph E. Flescher, Chairman
of Court and Comptroller
By: `i -?7.1,10
Deputy Clerk
OFFICE OF MANAGEMENT
AND BUDGE
By:
Michael Smykowski
OMB Director
October 3, 2017
(SEAL)
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
By:
4
ylan Reingold
County Attorney
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FOURTH PHASE IS LABELED AS PHASE 4 AND IS HIGHLIGHTED IN BLUE