Agenda 07/09/2013 Item #16K1 Proposed Agenda Changes
Board of County Commissioners Meeting
July 9,2013
Add On Item 10D: Recommendation that the Board of County Commissioners direct staff to
research the economic development tools(as outlined in the executive summary) as part of the
overall economic development program for the county and bring back recommendations to the
Board in October 2013. (Commissioner Hiller's request)
Withdraw Item 16A13: Recommendation to acknowledge and allow for 2210 Vanderbilt
Beach Road,LLC to proceed at their own risk in replace existing non-conforming signage on their
property,while seeking a Variance from the existing sign regulations. (Staff's request)
Move Item 16F3 to Item 11C: Recommendation to approve a Change Order#5 to Contract# 10-
5541 with Paradise Advertising and Marketing,Inc.for Tourism Marketing Services to reflect a
requested increase for marketing services for the Office of Business and Economic Development in
the amount of$75,000 and authorize the Chairwoman to execute the Change Order.
(Commissioner Nance's request)
Add On Item 16K1 : Recommendation to
approve and authorize the Chair to execute a
Settlement Agreement and Amendment in
the lawsuit entitled Collier County et al v.
Florida Georgia Grove, LLP, et al, filed in the
Twentieth Judicial Circuit in and for Collier
County, Florida (Case No. 11-1640-CA) and
direct County staff to commence the process
of vacating any claimed public right-of-way
or prescriptive easement interest to a portion
of Mamie Street. (County Attorney's
request)
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chair to execute a Settlement Agreement
and Amendment in the lawsuit entitled Collier County,et al., v. Florida Georgia Grove, LLP,
et al., filed in the Twentieth Judicial Circuit in and for Collier County, Florida (Case No.
11-1640-CA) and direct County staff to commence the process of vacating any claimed
public right-of-way or prescriptive easement interest to a portion of Mamie Street.
OBJECTIVE: To settle the Smallwood dispute.
CONSIDERATIONS:, On May 26, 2011, Collier County and the owner of Ted Smallwood's
Store in Chokoloskee filed suit against Florida Georgia Grove, LLP ("Developer") and T.D.
Bank, N.A., a National Bank, for the illegal demolition of a portion of Mamie Street. On
September 15, 2011, the Court granted the County and Ted Smallwood's Motion for a
Temporarily Injunction and ordered the Developer to return the public access to the Store. The
Developer appealed the Temporary Injunction Order to the Second District Court of Appeal. On
August 10, 2012, the Appellate Court rendered a decision affirming the issuance of the
temporary injunction. The Developer has since restored and repaved Mamie Street.
This portion of Mamie Street serves the Developer, the Smallwood Store and William and
Patricia Vaughn. The settlement, which was negotiated by counsel for the Smallwood Store and
approved by the Vaughns, relocates Mamie Street, making it a private road. If this item is
approved,Collier County will initiate the process of formally vacating any claims to an easement
or public right-of-way in the relevant portion of Mamie Street,south of Chokoloskee Blvd.
This is a conditional settlement. Vacation is a public process, which requires both advertising
and a public hearing, and will allow anyone at that time to object to this settlement. Should the
Board later decline the vacation,the settlement will be null and void.
FISCAL IMPACT: Funds required for advertising and processing the petition to vacate is
approximately$400. There are no other costs associated to the County.
GROWTH MANAGEMENT IMPACT:, None.
LEGAL CONSIDERATIONS: The County Attorney has reviewed the Settlement documents,
which are approved as to form and legality.This item requires majority vote for approval.—JAK
RECOMMENDATION: That the Board of County Commissioners accept the settlement in the
lawsuit filed against the by Collier County, et al., against Florida Georgia Grove, LLP, et al., in
the Twentieth Judicial Circuit Court, authorize the Chair to execute the Settlement Agreement
and Amendment, and direct County staff to commence the process of vacating any claimed
public right-of-way or prescriptive easement interest to a portion of Mamie Street.
Prepared by: Jeffrey A. Klatzkow, County Attorney and Kevin L. Noell, Assistant County
Attorney
Attachments: 1) Settlement Agreement; 2)Amendment to Settlement Agreement 3)Release
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
COLLIER COUNTY, a political
subdivision of the State of Florida, and
TED SMALLWOOD'S STORE, INC., a
Florida non-profit corporation,
Plaintiffs,
Case No.: 11-1640-CA
vs. Honorable Lauren Brodie
FLORIDA GEORGIA GROVE, LLP, a
Florida Limited Liability Partnership, and
T.D. BANK, N.A., a national bank,
Defendants.
SETTI..EMENT AGREEMENT
THIS SETTLEMENT AGREEMENT made this by and between
Plaintiffs, COLLIER COUNTY and TED SMALLWOOD'S STORE, INC., and
Defendants, FLORIDA GEORGIA GROVE, LLP and T.D. BANK, N.A.
RECITATIONS
A. Plaintiffs and Defendant, FLORIDA GEORGIA GROVE, LLP have had
certain differences arising out of the existence and use of Mamie Street by Plaintiffs and
the public as a means of access over the property owned by Florida Georgia Grove,
LLP to the property owned by Ted Smallwood's Store, Inc.;
B. Defendant, T.D. BANK, N.A., was named a Defendant in this case
because T.D. BANK, N.A., or its predecessor has a lien on the property owned by
Florida Georgia Grove, LLP. No party has made any claims that T.D. BANK, N.A. has
blocked access or consented to blocking access over any easement, access or
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roadway. Nor has any party claimed that T.D. BANK, N.A. has ever taken possession
of the subject real property or taken any action to manage or develop said property.
C. The differences between the parties have been claimed and plead in that
certain case styled Collier County and Ted Smallwood's Store, Inc. v. Florida Georgia
Grove, LLP and T.D. Bank, N.A., Case No. 11-1640-CA, in the Circuit Court of the
Twentieth Judicial Circuit in and for Collier County, Florida (the"Court");
D. On October 20, 2011, the Court entered a Temporary Injunction against
Florida Georgia Grove,LLP and T.D. Bank, N.A. (the "Temporary Injunction");
E. As ordered by the Court in the Temporary Injunction, Ted Smaliwood's
Store, Inc. posted a bond in the amount of$10,000 with the Clerk of Court(the"Bond");
F. On November 3, 2011, Florida Georgia Grove, LLP appealed the
Temporary Injunction as claimed and plead in that certain appellate case styled Florida
Georgia Grove, LLP v. Collier County and Ted Smallwood's Store, Inc., Case No, 2D11-
5636 in the Second District Court of Appeal of the State of 'Florida (the "Appellate
Proceedings");
G. On January 10, 2012, the Court entered an Order Adjudging
Contempt against Florida Georgia Grove, LLP (the "Contempt Order"), requiring Florida
Georgia Grove, LLP to restore and repave Mamie Street in accordance with the
Temporary Injunction entered by the Court on October 20, 2011;
H. Pursuant to stipulations, the Court has entered Orders Modifying the
Contempt Order to extend the compliance deadline;
1. Florida Georgia Grove, LLP has restored and repaved Maime Street
in accordance with the Temporary Injunction;
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J. On August 10, 2012, the Appellate Court rendered a decision
affirming the issuance of the temporary injunction subject to a hearing to quantify the
bond amount;
K. The parties do not admit any wrongdoing or liability, but have
determined to settle and compromise all claims asserted by the parties in order to
resolve their differences and avoid the financial expense and burden of protracted and
complex litigation; and
L. The parties desire hereby to reduce their agreement of settlement to
writing so that it may be binding upon the parties,their successors and assigns.
TERMS OF AGREEMENT
In consideration of the foregoing recitations and the following mutual covenants,
promises and agreements,the parties, with the intent to be legally bound, agree as
follows:
1. The foregoing recitations are hereby incorporated into and made a part of
this Settlement Agreement.
2. If, as, and when the conditions in paragraph 3 below are satisfied, this
Settlement Agreement will settle all of the claims between the parties and all of the
related and consequential claims and matters that the parties may have which were
made or could have been included in the parties' claims.
3. This Settlement Agreement has been presently executed by all parties
except Collier County. It will not be effective unless and until: (i) the Board of County
Commissions of Collier County approves executing this Settlement Agreement; (ii) the
Settlement Agreement is actually executed by Collier County and (iii) if so executed by
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Collier County then Collier County thereafter formally vacates any claimed public right of
way or prescriptive easement as claimed by It in this lawsuit.
4. Upon satisfaction of all conditions to its effectiveness as set forth in this
Settlement Agreement, the Temporary Injunction and the Contempt Order shall be
vacated and the Bond shall be returned to Ted Smallwood's Store, Inc. by the Clerk.
5. Plaintiff, Collier County, has not presently executed this Settlement
Agreement because its terms and conditions have not been approved by Collier County
in accordance with its applicable procedures. Concurrently with the execution of this
Settlement Agreement and related documents by the other parties hereto, the other
parties have arranged for Collier County to take such steps as are required for approval.
If such approval is forthcoming, Collier County will notify the other parties to this
Settlement Agreement and deliver to each of them a signed copy of this Settlement
Agreement and the related documents of which it is a signatory. For the purposes of
this Settlement Agreement, the date of such notice shall be denominated as the
"Approval Date".
A. The execution of this Settlement Agreement by Collier County shall
constitute an acknowledgement by Collier County that it has agreed to
disclaim any rights relative to (i) the Current Easement (as defined in
paragraph 6 below), or (ii) any other claims for an easement or right of
access over or against the property owned by Florida Georgia Grove, LLP
whether by way of a prescriptive easement, a publicly dedicated road or
otherwise subject, however,to the subsequent (i) initiation of the statutory
process to formally vacate any such rights, and (ii) the determination by
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the Board of County Commissioners of Collier County to actually and
formally vacate such rights as hereafter provided for.
B. Notwithstanding the fact that Collier County is not presently executing
this Settlement Agreement, all of the other parties hereto presently
executing this Settlement Agreement acknowledge and agree that they
are bound by the terms and conditions hereof, as and constituting their
irrevocable offer to each other, and to Collier County, which shall bind all
of them if accepted and executed by Collier County, However, if Collier
County shall have failed to approve this Settlement Agreement by June 6,
2013, (the "Approval Date") then this Settlement Agreement and all
documents executed pursuant thereto shall be null and void and without
recourse to the parties hereto.
C. If the actual Approval Date does occur on or before the date set forth
in paragraph 5 B above then Collier County will thereafter initiate the
statutory process to vacate its claims to a public right of way and
prescriptive easement.
6. The parties agree that, subject to: (i) approval of this Settlement
Agreement by Collier County and (ii) the subsequent formal vacation of any claims to a
prescriptive easement or public right of way by Collier County any access as shall
thereafter exist in favor of Ted Smallwood Store, Inc. or to its property over the property
owned by Florida Georgia Grove, LLP shall be only by the Easement for Ingress and
Egress and Utilities which is attached hereto as Exhibit 1 given Defendant, Florida
Georgia Grove, LLP (the "Easement"). The Easement grants to Ted Smallwood's
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Store, Inc. a specific access easement (the "Current Easement") and contemplates that
the Current Easement may be relocated in the future.
7. Concurrently with their execution of this Settlement Agreement,
Defendant, Florida Georgia Grove, LLP and Defendant, TD Bank, N.A., Plaintiff, Ted
Smallwood's Store, Inc. as the case may be, have taken the following action subject,
however, to the conditions in paragraph 3:
A. in the case of Defendant, Florida Georgia Grove, LLP, executed in
favor of Plaintiff, Ted Smallwood's Store, Inc., the Easement in the form
attached hereto as Exhibit 1 and incorporated herein by reference;
B. in the case of Defendant, Florida Georgia Grove, LLP, executed a
Covenant and Exclusive Easement to Permit Continuation of
Encroachment in favor of Ted Smallwood's Store, Inc. in the form attached
hereto as Exhibit 2 and incorporated herein by reference;
C. in the case of Defendant, TD Bank, N.A. executed a subordination of
its rights relative to the instruments referenced in A. and B. above;
D. executed a Stipulation to Vacate Temporary Injunction, Quash
Contempt Order, Dismiss with Prejudice, and Reserve Jurisdiction to
Enforce Settlement Agreement and Impose Sanctions for Contempt in the
form attached hereto and incorporated herein by reference as Exhibit 3.
Upon its approval of this Settlement Agreement Plaintiff, Collier County,
shall execute the above instrument; and
E. have agreed to the Court's entry of the Agreed Order Vacating
Temporary Injunction, Quashing Contempt Order, Dismissing Case with
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Prejudice, and Reserving Jurisdiction to Enforce Settlement Agreement
and Impose Sanctions for Contempt in the form attached hereto as
Exhibit 4(the"Agreed Order").
F. in the case of Defendant, Florida Georgia Grove, LLP, placed in
escrow its check in favor of Plaintiff, Ted Smaliwood's Store, Inc. in the
amount of Five Thousand Dollars which shall be deemed to be a
charitable donation.
All of the above documents and instruments shall be held in escrow
by counsel for Florida Georgia Grove, LLP, to be recorded or filed or
delivered, as the case may be, immediately following the Approval Date
and such documents and instruments shall not be effective unless and
until: (i) Collier County has approved and executed this Settlement
Agreement and the appropriate related documents on or before the date
specified in paragraph 4. B. and (ii) the formal vacation of any claims by
Collier County, as set forth in paragraph 3 has taken place by the date that
is not more than 120 days after the Approval Date. If no approval is given
by Plaintiff, Collier County, on or before the date specified in paragraph 4.
B. hereof, or if it Is so approved but then thereafter the formal vacation has
not taken place by the date that is not more than 120 days after the
Approval Date, then, in either such case, said documents and instruments
shall be null and void and the check returned and this Settlement
Agreement will no longer be effective.
8. Upon the completion of all three conditions set forth in paragraph 3 hereof,
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and the disbursal of the documents described above from escrow as contemplated .
above, the Plaintiffs on the one hand, and Defendant Florida Georgia Grove, LLP, on
the other hand, shall be deemed to have released and forever discharged each other
including their agents, servants, employees, consultants, partners, limited partners,
subsidiaries, attorneys, managers, insurors, advisors, successors, predecessors,
affiliated entities and affiliated corporations, releasing them from any claim or liability
existing as of the date of the release, in law or in equity which either party claimed or
reasonably should have known or claimed in that certain case styled Collier County and
Ted Smallwood's Store, Inc. v. Florida Georgia Grove, LLP and T.D. Bank, N.A., Case
No. 11-1640-CA, in the Circuit Court of the Twentieth Judicial Circuit in and for Collier
County, Florida, but excluding only the rights and obligations of the parties under this
Settlement Agreement and the Agreed Order and the documents listed in paragraph 7A,
7B, and 7C.
9. In addition, upon the completion of all three conditions set forth in
paragraph 3 as contemplated above, the Plaintiffs shall be deemed to have released
and forever discharged Defendant, T.D. BANK, N.A., and its agents, servants,
employees, consultants, partners, limited partners, subsidiaries, attorneys, managers,
insurors, advisors, successors, predecessors, affiliated entities and affiliated
corporations, from any claim or liability existing as of the date of the release,in law or in
equity which either party claimed or reasonably should have known or claimed in that
certain case styled Collier County and Ted Smallwood's Store, Inc. v. Florida Georgia
Grove, LLP and T.D. Bank, N.A., Case No. 11-1640-CA, in the Circuit Court of the
Twentieth Judicial Circuit in and for Collier County, Florida, but excluding only the rights
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and obligations of the parties under this Settlement Agreement and the Agreed Order
and the documents listed in paragraph 7A, 7B, and 7C. Neither this Settlement
Agreement nor any documents executed pursuant thereto shall be deemed a release of
claims or satisfaction of any note or mortgage by or between Defendant, Florida
Georgia Grove, L.L.P. and Defendant, TD BANK, N.A. which claims are specifically
reserved.
10. If, as, and when Collier County approves this Settlement Agreement, the
parties agree to then enter into a stipulation to request that the court enter an order
staying all proceedings in this case pending the completion, or not, by the date specified
in section 7F of the road vacation that is specified In section 3(10.
11. This Settlement Agreement and the other documents referred to in it and
being concurrently executed and delivered constitute the entire agreement between the
parties and may not be amended or modified except in writing by each of the parties.
Notwithstanding the foregoing, with the exception of T.D. BANK's agreement to
subordinate its lien to the interests of the easement created by this Settlement
Agreement, nothing contained in this Settlement Agreement shall amend, modify, renew
or otherwise affect, in any way, any documents reflecting loan transactions between
Florida Georgia Grove, LLP and T.D. BANK, N.A., including but not limited to, the
December 7, 2004 Riverside Bank loan reflected by the $1,282,500.00 Promissory
Note, Commercial loan agreement, and Real Estate Mortgage (recorded at O.R. Book
3693, Page 566, of the public records of Collier County, Florida, as modified on April 7,
2008 by the Change in Terms Agreement, Business Loan Agreement, and Modification
of Mortgage (recorded at O.R. Book 4356, Page 2688, of the public records of Collier
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County, Florida)), and assigned to T.D. Bank by virtue of that certain Assignment of
Mortgage recorded at O.R. Book 4626, Page 600, and the December 10, 2007
Riverside Bank loan reflected by the $300,000.00 Promissory Note, Business Loan
Agreement, and Mortgage (recorded at O.R. Book 4340, Page 2958, of the public
records of Collier County, Florida), and assigned to T.D. Bank by virtue of that certain
Assignment of Mortgage recorded at O.R. Book 4626, Page 602, of the public records
of Collier County, Florida. Nor does this Settlement Agreement affect T.D. BANK's
entitlement to seek reimbursement of attorney's fees and costs from Florida Georgia
Grove, LLLP incurred in defending itself in the above captioned litigation and Florida
Georgia Grove, LLP's right to contest same.
12. This Settlement Agreement is the joint product of the respective parties
and shall not be more strictly construed against any party.
13. The parties acknowledge and agree that each is foregoing certain rights
and assuming certain duties and obligations which, but for this Settlement Agreement,
would not have been released or assumed. Accordingly, the parties agree that this
Settlement Agreement is fully and adequately supported by consideration, is fair and
reasonable, and the parties have had the opportunity to consult with and have in fact
consulted with such experts of their choice as they may have desired, and they have
had the opportunity to discuss the matter with counsel of their choice.
14. In the event of any default under any of the terms of this Settlement
Agreement,the non-defaulting party may institute legal proceedings or avail itself of any
legal remedies available to such party including, but not limited to,those provided for in
the Agreed Order. In the event of any such actions,the prevailing party shall be entitled
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to an award of reasonable attorneys' fees and costs incurred in the enforcement of
same, inclusive of attorneys' fees and costs incurred on appeal.
15. This Settlement Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Whenever possible, each provision of
this Settlement Agreement shall be interpreted in such a manner as to be effective and
valid under applicable law; but if any provision of this Settlement Agreement shall be
prohibited by or be invalid under applicable law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Settlement Agreement.
16. This Settlement Agreement may be executed in any number of
counterparts (and by delivery of facsimile signature pages), each of which shall be
deemed an original but all of which shall together constitute one and the same
instrument.
17. This Agreement shall be binding on, and inure to the benefit of the parties
and their respective successors, and assigns.
IN WITNESS WHEREOF, the parties by their duly authorized agents have
signed this Settlement Agreement as of the dates set forth below.
COLLIER COUNTY, a political subdivision Attorney or Hier County:
of the State of Florida: 4f1
By
Georgia A. Hiller, Esq., Chairwoman Jeffrey ''a J.-, ow, Esq.
Collier County Board of County
Commissioners
Date: , 2013 Date: , 2013
Attest:
Dwight E. Brock, Clerk
By:
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.,...
IIMIM.
1
TED SMALLWOOD'S STORE, INC., a
Florida non-profit corporation: Attorney for Ted Smaliwood's Store, Inc.:
•
By: ack A..A k 0.11 li Al 140,-.11t-
Lynn -le cMillin, GEO Cs.c4-'44. '•.' .-- **1---77::*----'4*-----"-•-. ---...
Richard C, Grant, Esq.
Date: (-4, 2.- S ,, , 2013
Date: t-s) - *-1- — „2013
FLORIDA GEORGIA GROVE, LLP, a Attorn. ro • , Griorgia Groyei-t
• - . •-,.•• y pa •z rshi
---2' ' IP didaillro
St.: . J.„Chase, Esq. „if_
.14-y it,
Printed Name
As Managing Partner
W. James ' -
Date: '1'4. 0 , 2013
, 13
T.D. BANK, N.A., a national bank: Attorney for T.D. Bank N.A.;„,
V/ e.'"::e- ee(
By ' -' .y, 754/
--,..- ,
,,,,,, „ ,
/ 4(1,,,, ,t' (24,,,/, r Blake Paul, Esq.
Printed Name
As Vice President Date: ia.ticti..... ici ,, 2013
Date: rif:toi i ,Or 6. , 2013
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EXHIBIT 1
Easement for Ingres and Egress and Utilities
This instrument prepared by,
and upon recordation return to:
Richard C.Grant,Esq.
Grant Fridkin Pearson,P.A.
5551 Ridgewood Drive,Suite 501
Naples,Florida 34108-2719
Tel 239.514,1000
FOR OFFICIAL USE ONLY
EASEMENT FOR INGRESS AND EGRESS AND UTILITIES
For valuable consideration,receipt of which is hereby acknowledged, and in accord with
the terms of a Settlement Agreement among the parties, entered into in case no 11-1640-CA in
the Twentieth Judicial Circuit Court of Florida,in and for Collier County(the"Action"), Florida
Georgia Grove, LLP, a Florida limited liability partnership ("Florida Georgia"), whose address
is 3335 U.S. Highway 27 South Sebring, Florida 33870, hereby grants, bargains, sells, and
conveys to Ted Smallwood's Store, Inc., a Florida not for profit corporation ("TSS"), whose
address is P.O. Box 310, Chokoloskee, Florida 34138, a perpetual, non-exclusive easement (the
"Access Easement") for ingress and egress over the property legally described on Exhibit "1"
hereto (the "Easement Area") for the purpose of ingress and egress from Chokoloskee Drive a
public road,to the property owned by TSS which is legally described on Exhibit"2"hereto (the
"Dominant Estate"). The Easement Area is a potion of an overall parcel of land owned by
Florida Georgia that is legally described on Exhibit "3" hereto and made a part hereof (the
"Servient Estate"). As specified in section B below, this instrument also grants TSS non-
exclusive easements for existing utility installations and lines located within the Servient Estate
that provide water,sewer,electric,telephone,and cable services to the Dominant Estate.
A. The Access Easement will exist on the following terms:
1. Florida Georgia covenants and agrees that it will keep the Access Easement and
the Easement Area free from interference or damage by reason of: (i) activities, and operations
conducted by Florida Georgia on the Servient Estate; (ii) any other easements it may hereafter
grant to third parties which will be subordinate hereto; and (iii) damage, or destruction, or
excessive wear and tear caused by any such activities or interference.
2. Florida Georgia hereby reserves the right to, and by its acceptance TSS agrees
that Florida Georgia may relocate the Access Easement to another location on the Servient Estate
(the "Relocated Access Area") so long as the easement provides reasonable access to the
Dominant Estate. As so relocated, the rights of the parties hereunder (and all other parties
benefitting from the Access Easement) shall be limited to the physical area described in the
Relocated Access Area TSS firther agrees and acknowledges that the location described on
Exhibit "4" hereof, ("Approved Relocated Access Area") is approved by TSS as an acceptable
location for the Relocated Access Area. The modification/relocation of the Access Easement to
any Relocated Access Area shall be permitted under the following conditions:
(i) This Access Easement is modified by an instrument executed by both
GFPAC Revision 4/2/13
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parties or their successors, which specifies the physical location of the Relocated Access Area as
is set forth in sub-paragraph (ii) below, in favor of TSS and executed by the then fee owner of
the Servient Estate, and by any and all persons as may have an interest in it, and/or who then
hold a lien upon it, and appropriate evidence thereof is provided to TSS or its successors. The
instrument shall be recorded in the public records.
(ii) The Relocated Access Area shall be twenty (20) feet in width and the
actual paved road surface within it shall be not less than sixteen (16) feet in width, with the
remaining four (4) feet to be unpaved and to be located on one or both sides of the sixteen (16)
foot paved area as determined by Florida Georgia.
(iii) The road located within the Relocated Access Area shall be constructed as
follows: 12" compacted subbase to LBR = 40; 6" compacted lime rock base; and 1'/z" type Si
asphalt.
(iv) Florida Georgia allows TSS to erect and install, at its expense, appropriate
signage at the entrance to the Relocated Access Area along Chokoloskee Drive, identifying it as
the entrance to the Ted Smallwood Store and the Dominant Estate.
(v) If the Relocated Access Area is located other than in the Approved
Relocated Access Area then the Relocated Access Area, inclusive of the areas specified in sub-
paragraph (ii) above is properly described with a legal description prepared by a registered
Florida land surveyor and with an appropriate survey demonstrating its location within the
overall Servient Estate and its point of connection to the Dominant Estate showing continuity
between Chokoloskee Drive to the north and the Dominant Estate to the south and contiguity to
each, and that the improvements specified in subsections (ii) and (iii) above are wholly located
within the Approved Relocated Access Area. The survey must be certified to TSS.
(vi) TSS agrees and acknowledges that the Approved Relocated Access Area
as described on Exhibit "4" is acceptable and that no further survey and/or certification as
referenced in paragraph (v) above is required as to it, however, if, as, and when the
improvements set forth in(ii)and(iii)are actually made to the Approved Relocated Access Area
and the Access Easement is to be relocated to it, then at that time FG must have a surveyor
certify that, as constructed, the improvements specified in subsections (ii) and (iii) above will
have been and are then wholly located within the Approved Relocated Access Area
(vii) All of the foregoing must be done at the expense of Florida Georgia.
(viii) Upon construction of the improvements specified within subsections (ii)
and (iii) above within the Relocated Access Area including but not limited to within the
Approved Relocated Access Area, and compliance with all other conditions in this section A 2,
then all other Access Easements/Access Areas shall be deemed abandoned and shall no longer be
utilized.
(ix) Upon compliance with the foregoing, TSS agrees to execute appropriate
documents, suitable for recording,modifying the physical location of the Access Easement to the
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Relocated Access Area including that area depicted on Exhibit "4", and acknowledging that the
rights of access and other easements and rights and obligations specified in this Access Easement
apply exclusively to the Relocated Access Area and are exclusively for the benefit of TSS, its
employees,guests and invitees.
(x) TSS further agrees that in addition to any and all other relief, both at law
and at equity, Florida Georgia shall be entitled to injunctive relief and/or specific performance
seeking the relocation of the Access Easement to a Relocated Access Area assuming compliance
with the requirements set forth above.
(xi) The parties have reviewed, executed, and initialed counterpart copies of a
sketch prepared by Mel Hattori, P.L.S., Punta Gorda, Florida bearing a revision date of January
12, 2013„ but signed and certified on March 2, 2013, Work Order No. 11-074 ESM T2U which
graphically depicts the Dominant Estate, Servient Estate, Easement Area, and the Approved
Relocated Access Area.
3. Florida Georgia has no obligation to provide regular, recurring, or normal
maintenance and/or repair of the Easement Area or to the road and driving surfaces thereon
either as it now exists or with respect to the Relocated Access Area, if such is the case. TSS
shall have the right, from time to time, at its own expense, but have no obligation, to perform
regular,recurring and normal maintenance and/or repair.
4. Both Florida Georgia and TSS are, however, obligated respectively, at such
party's own expense,to promptly: (i)remediate and repair any damage(other than ordinary wear
and tear), injury, destruction; or (ii) provide and perform any extraordinary repairs and/or
resurfacing of the paved road area within the portion of the Easement Area or the Relocated
Access Area, as the case may be and/or resurfacing of the paved road within Easement Area or
the Relocated Access Area, as the case may be, in either of such cases, as is, or may be caused
by, or result from, such party's own activities, uses, or operations, or, in the case of Florida
Georgia, those of others to whom it may grant easements, such as, but not limited to, damage or
excessive or extraordinary wear and tear caused by heavy equipment or construction activities
taking place, in the case of Florida Georgia on the Servient Estate or in the case of TSS on the
Dominant Estate .
B. Florida Georgia hereby grants to TSS the right and an easement to maintain, install,
repair, and replace any and all above ground and underground utility lines and installations (the
"Utility Easement") that now exist within the Servient Estate to provide utility service to the
Dominant Estate, such utilities and services may include, but are not limited to water, sewer,
telephone, electricity, cable tv, and internet. If any utility installation situated within the Servient
Estate is not evidenced by a recorded easement, then either TSS or Florida Georgia may: (i)
cause such utility installation(s)to be located by a licensed surveyor; (ii) cause such surveyor to
prepare a legal description for an easement for the utility installation itself within the Servient
Estate which encompasses both the utility installation and any additional areas contiguous to the
utility installation required by the utility provider for access to maintain, repair, and replace it
and (iii) prepare a new non-exclusive easement to be granted for the continued location,
maintenance,repair and replacement of the utility installation in question. Such new easement(s)
3
shall be executed by the persons and in accord with criteria and be substantiated as set forth in
section A2(i) above and be subject to the reasonable approval of TSS and Florida Georgia and
when so approved, shall be recorded in the Public Records. If any such utility installation is
relocated in accordance with the terms and conditions of the following sentence, the recorded
easement shall be amended accordingly. Florida Georgia reserves the right,from time to time,to
relocate any such lines and installations elsewhere within the Servient Estate, including but not
limited to within the Approved Relocated Access Area: (i) at its sole cost and expense; (ii) in
accord with criteria, standards, and policies of the applicable utility service providers(including,
if approved by the utility service provider, relocation of aboveground installations as
underground installations); and (iii) without such relocation causing a disruption or break in
utility service to the Dominant Estate.
C. The Access and Utility Easements created hereby, and any permitted
modifications/relocations thereof, are, and in the case of permitted modifications/relocations,
will be,appurtenant to,and inseparable from,the Dominant Estate. They and this instrument are
binding and enforceable against Florida Georgia and its successors and assigns and successor
and future owners of the Servient Estate and they inure to the benefit of TSS, its successors and
assigns and successor owners of the Dominant Estate.
D. This instrument may only be modified, amended, or its terms varied or waived in writing
executed by all parties.
IN WITNESS WHEREOF this instrument has been executed this day of
,2013.
Witnesses: Florida Georgia Grove,LLP
Witness#1
Printed name of witness#1 By.
Witness#2 as its Managing Partner
Printed name of Witness#2
STATE OF FLORIDA )
§§
COUNTY OF )
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me this day of
, 2013, by , as the Managing Partner of Florida Georgia
Grove, LLP, a Florida limited liability partnership, who is personally known to me or who produced
as identification.
Notary Public-State of Florida
Printed Name of Notary
4
My Commission Expires:
SUBORDINATION
TD Bank,N.A., a national banking association, the owner and holder of mortgages and
assignments recorded in the following Official Records Books of the Collier County Public
Records: 3693, at page 566; 4356, at page 2688; 4340, at page 2958; 4626, at page 600; and
4626, at page 602,as well as by virtue of any other lien, encumbrance, or interest it may have or
claim on or in the Servient Estate, as described in the Easement for Ingress and Egress and
Utilities to which this Subordination is attached, hereby acknowledges and agrees that this
Easement and all rights of Ted Smallwood's Store, Inc., and its successors and assigns,
thereunder are superior to the rights of TD Bank,N.A. as set forth in the instruments described
above, or as it may otherwise claim to exist in the Servient Estate, and such rights of TD Bank,
N.A. are hereby subordinated to the Easement.
Executed this day of ,2013.
Witnesses: TD Bank,N.A.
Witness#1 By:
Printed name of witness#1 ,Vice President
Witness#2
Printed name of Witness#2
STATE OF FLORIDA )
§§:
COUNTY OF )
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me this
_ day of , 2013, by as Vice President of TD Bank,
N.A., a national banking association, who is personally known to me or who produced
as identification.
Notary Public-State of Florida
Printed Name of Notary
My Commission Expires:
5
ACCEPTANCE
Ted Smallwood Store, Inc. hereby accepts and agrees to the forgoing Easement for
Ingress and Egress and Utilities on the terms and conditions granted.
Ted Smallwood Store,Inc.
By:
Lynn McMillin,Executive Director
STATE OF FLORIDA )
§§:
COUNTY OF )
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me this
day of , 2013, by Lynn McMillin as Executive Director of Ted Smallwood
Store, Inc., a Florida not for profit corporation,who is personally known to me or who produced
as identification.
(SEAL) Notary Public-State of Florida
Printed Name of Notary
My Commission Expires:
6
EXHIBIT 1
"Easement Area"
PROPOSED ROADWAY EASEMENT OVER EXISTING PAVED ROAD (NEW)
FLCOMMENCING I THNCE ON ANASSUMEDDBNEEARING OF NIA0N0'312T14"EHIALONGOTHEH,EAST LINE OFF SAIDCSECTIIONC36 ALSO
BEING THE CENTERLINE OF SMALLWOOA DRIVE 50' ROW) 14"
D1SYANCE OF 877.74 FEET TO AN IRON ROD AT THE
CENTERLINE OF CHOKOLOSKEE DRIVE (50' ROW ; THENCE N 84' 57' 50" W ALONG THE CENTERLINE OF SAID CHOKO-
LOSKEE DRIVE, A DISTANCE OF 169.01 FEET T AN ANGLE POINT IN SAID CENTERLINE OCCUPIED BY A 5/8" BOLT
• THENCE N 76' 02' 51" W, ALONG SAID CENTERLINE, A DISTANCE OF 408,84 FEET TO AN ANGLE POINT IN SAID
CENTERLINE OCCUPIED BY A 5/8" BOLT ON THE COMMON BOUNDARY OF LOTS 6 AND 8 OF SMAU.WOODS DIVISION OF
SECTION .r S6 A7S RECORDED IN PLAT BOOK 1, PAGE 27 OF THE PUBLIC RECORDS OF COLLIER COUNTY FLORIDA' THENCE
S 23' 34 59' W ALONG SAID COMMON BOUNDARY, DISTANCE OF 28 55 FEET TO A POINT ON THE §QUTI-I RIGHT OF
WAY LINE OF SAID CHOKOLOSKEE DRIVE, THENCE ALONG SAID SOUTH RIGHT OF' WAY LINE. 5 84' 32' 07' W A DISTANCE
OF 231 34 FEET TO THE POINT OF BEGINNING OF THE HEREINAFTER DESCRIBED EASEMENT, BEING 17 FEET IN WIDTH
AND OVER.AYING THE EXISTING PAVED ROADWAY WHICH RUNS THRU PARCEL #28085200003 AS "SHOWN HEREON
THENCE LEAVING THE SAID SOUTH RIGHT or WAY IJNE OF CHOKOLOSKEE DRIVE S 21' 25' 22 W A DISTANCE
OF 139.12 FEET; THENCE S 25' 12' 21" W A DISTANCE OF 43.07 FEET TO THE BEGINNING OF A CIRCULAR CURVE,
CONCAVE TO THE WEST AND HAVING A CENTRAL ANGLE OF 33' 52' 01", A RADIUS OF 210.04 FEET, AN ARC LENGTH OF
124,15 FEET, A CHORD LENGTH OF 122.35 FEET AND A CHORD BEARING OF S 17' 30' 17" W TO THE END OF SAID
CURVE, PHENCE S 01' 39' 47" E A DISTANCE OF 248.59 FEET; THENCE S 06' 01' 42" W A DISTANCE OF 63.42 FEET
, THENCE S 02' 23' 49" W A DISTANCE OF 54.43 FEET TO A POINT ON THE WEST LINE OF LOT 12, SMALLWOOD'S DIVI.
-ISION OF SECTION 36, AS RECORDED IN PLAT BOOK 1, PAGE 27 OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA
; THENCE ALONG SAID WEST LINE OF LOT 12 S 28' 11' 20" W A DISTANCE OF 39 07 FEET TO THE WEST LINE OF NEW 17
FOOT EASEMENT; THENCE LEAVING.SAID WEST LINE OF LOT 12 N O2' 23' 49" E A DISTANCE OF 120,15 FEET; THENCE
N 06' 01' 42" E A DISTANCE OF 62.82 FEET; THENCE N 01' 39' 47" W A DISTANCE OF 247.77 FEET TO THE BEGINNING
OF A CIRCULAR CURVE, CONCAVE TO THE WEST AND HAVING A CENTRAL ANGLE or 33' 35' 57, A RADIUS OF 227.04 FEET
, AN ARC LENGTH OF 133.14 FEET, A CHORD LENGTH OF 131.24 FEET AND A CHORD BEARING OF N 1T 17' 05" E TO
THE END OF SAID CURVE; THENCE N 25' 12' 21" E A DISTANCE OF 41.17 FEET; THENCE N 21' 25' 22" E A DISTANCE
OF 130 08 FEET TO THE SOUTH RIGHT OF WAY LINE OF CHOKOLOSKKE DRIVE: THENCE ALONG SAID SOUTH RIGHT OF WAY
N 84' 52' 07" E A DISTANCE OF 19,00 FEET TO THE POINT OF BEGINNING.
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•
EXHIBIT 2
"Ddminant Estate"
Lot 12 and a portion of Lot 13, Smallwood's Division
according to the plat thereof as recorded in Plat Book
1 at Page 27, of the Public Records of Collier County,
Florida, which said lot and portion of said lot is sore
particularly bounded and described as followes
Commencing at the East 1/4 Corner of Section 36, Township
33 South, Range 29 East, Chokoloskee, Collier County,
. Florida, Run 8. 89'01'01' W. 706.17 Feet on the Line .
Dividing Lots 7 and 11 of Smaliwood's Division of Section
36, Township 53 South, 29 Bast, as filed and
recorded in Plat = 'S.--1 rr 27, of the Public
Records of Collie k1� .1
to the Original
lionuawnt, Costis on is 6, 7, , .- • 12, and to Ths
• Thence S. 89'2 '2 W. 194.03 Feet
to the Origins N• '' • • 1 o Lo s 8, 12 and 13;
Thence 8. 27' : ' • � - A ' , -ti T •s 8. 28'00'37'
W. 101.84 Feet, T "� - .- -0� 8 Feet; Thence
8. 30.42'24` i7- . 46 1tS8l . 3 ,0?Nt; Thence . • '
20.47'21i i. ginning.
Together with $, iparian rig -J, • •u- oloskee Bay.
Op cd6s(5.
?'1E CIS
•
L..
EXHIBIT 2
"Dominant Estate"
Commencing at the east quarter corner of Section 36, Township 53 south,Range
29 east, Chokoloskee, Collier County, Florida , run south 89-12-54 west on the
line dividing lot 7 and 11 of Smallwood's division of Section 36, Township 53
south,Range 29 east as filed and recorded in Plat Book 1 at page 27 of the Public
Records of Collier County, Florida, for 707.27 feet to the original monument
common to lot 6, 7, 11, and 12,thence south 89-12-24 west for 195.20 feet to the
original monument, common to lots 6, 8, 12, and 13,thence south 28-27-54 west
on the line dividing lot 12 and 13 for 127 feet to a concrete monument, THE
POINT OF BEGINNING: continue south 28-27-54 west for 56.51 feet to a
concrete monument, thence south 66-26-39 west, 5 feet south from the south
building foundation,for 103.35 feet to a point on a seawall,thence north 23-33-21
west for 52.5 feet to a point on a seawall,thence north 66-26-39 east for 80 feet to
a concrete monument, thence north 83-47-54 east for 55.50 feet to THE POINT
OF BEGINNING. Together with all riparian rights to Chokoloskee Bay.
As per deed in Official Records Book 1157 at page 420 of the Public Records of Collier
County,Florida.
Also described below:
SMALLWOOD'S STORE PARCEL
A PORTION OF LOT 13 OF SMALLWOODS DIVISION OF SECTION 36, TOWN SHIP 53 SOUTH,
RANGE 29 EAST ON CHOKOLOSKEE ISLAND, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1,
PAGE 27 OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE EAST 1/4 CORNER OF ".•,AID SECTION 38, TOWNSHIP 53 SOUTH RANGE 29 EAST
COLLIER COUNTY, FLORIDA RUN S 89' 01' 01 W FOR 706.20 FEET ALONG THE LINE DIVIDING LOTS 7 AND 11
OF SMALLWOODS DIVISION TO THE ORIGINAL MONUMENT AT THE COMMON CORNER OF LOTS 6,7,11 AND 12; THENCE
RUN S 89' 21' 26 W FOR 194.83 FEET TO THE ORIGINAL MONUMENT AT THE COMMON CORNER OF LOTS 6,8,12 AND
13; THENCE .27 ' 43' 26' W FOR 27.00 FEET TO THE ORIGINAL MONUMENT ALONG THE LINE DIVIDING LOTS 12 AND
13 S 28 08' W FOR 106 10 FEET TO AN IRON PIN AND CAP, LYING 27.8 FEET EAST OF AN ORIGINAL MONUMENT
AND 89.16 FEET EAST OF AN ORIGINAL MONUMENT.SAID PIN BEING THE POINT OF BEGINNING OF THE HEREINAFTER
DESCRIBED PARCEL OF LAND; THENCE CONTINUE S 28' 08' 37" W FOR 75.74 FEET TO AN ORIGINAL MONUMENT
THENCE RUN S 63' 33' 14" W FOR,,60.55 FEET TO A DRILL HOLE IN CONCRETE 0.5 MORE OR LESS EAST OF CONCRETE
SEAWALL; THENCE RUN N 30' 42' 24 W FOR 50.00 FEET ALONG SAID SEAWAIrL T9 A DRILL HOLE IN THE TOP OF SAID
CONCRETE SEAWALL' THENCE LEAVING SAID CONCRETE SEAWALL RUN N 49' 12 57 E FOR 42.59 FEET TO AN ORIGINAL
MONUMENT; THENCE RUN N 80' 52' 45" E FOR 89.16 FEET TO THE POINT OF BEGINNING.
THIS DESCRIPTION WAS PRODUCED FROM A FIELD SURVEY AND RECOVERED CORNERS AS REFERENCED
ON A SURVEY DON��p{� BY HORACE A. WILKISON AND ASSOCIATES, INC., NAPLES, FLORIDA, DATED
AUGUST 4, 1995 WITH DRAWING NUMBER 53-D-6-2.
TOGETHER WITH ALL RIPARIAN RIGHTS TO CHOKOLOSKEE BAY.
PARCEL PER OFFICIAL RECORD BOOK 2238,PAGE 1843.
LOT 12 AND A PORTION OF LOT 13 SMALLWOOD'S DIVISION ACCORDING TO THE PLAT THEREOF AS RECORDED •
IN BOOK LOT PAGE 27, PARTICULARLY DES RECORDS OF S FOLLOWSCOUNTY, FLORIDA WHICH SAID LOT AND
COMMENCING AT THE EAST 1/4 CORNER OF SAID SECTION 36, TOWNSHIP 53 SOUTH RANGE 29 EAST CHOKOLOSKEE
COLUER COUNTY, FLORIDA RUN S 89' 01' 01 W FOR 706.17 FEET ALONG THE LINE DIVIDING LOTS 7 AND 11
OF SMALLWOODS DIVISION OF SECTION 36, TOWNSHIP 53 SOUTH, RANGE 29 EAST AS FILED AND RECORDED IN PLAT
BOOK 1 AT PAGE 27, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA TO THE ORIGINAL MONUMENT COMMON
TO LOTS 6,7 11 AND 12, AND TO THE POINT OF BEGINNING• THENCE S 89' 2i' 26" W 194.83 FEET TO THE, ORIGINAL
MONUMENT 1. FEET OTHENCE S LOTS 63' 33'814'W 60.55 THENCE
FEET;THENCE S830%D 42' 249 FEET;170HFEE; THENCE 08' 37" 31' 58"E
59.02 FEET; THENCE S 39' 26' 45" E 224,74 FEET; THENCE N 20' 47' 21" E 402.12 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH ALL RIPARIAN RIGHTS TO CHOKOLOSKEE BAY.
•
• 4 . i
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•
EXHIBIT 3
"Servient Estate"
S.T.O.F.PARCEL
A portion of the South one-half(S 1/2)of Lot 8,together with a portion of Lot 13 of
SMALLWOOD'S DIVISION of Section 36,Township 53 South,Range 29 Fast on Chokoloskee
Island,according to the Plat thereof as recorded in Plat Book 1,Page 27 of the Public Records of
Collier County,Florida,said portions lying South of the right-of-way of CHOKOLOSKEE
DRIVE(50'ROW)and including all of that certain Parcel of land described in Fee Simple Deed
recorded in O.R.Book 1199,Page 2278 of the aforesaid Public Records,said portions also being
contiguous with and East of the Easterly boundary of PARKWAY VILLAGE OF
CHOKOLOSKEE ISLAND,a Condominium recorded in Condominium Plat Book 39,Page 31,
Public Records of Collier County,Florida,an• • • being contiguous with and West of those
Parcels described in O.R.Book 997 :Aak ,I _ __ -• and Pages 1943 and 1944,of the
Public Records of Collier County, 'iorr4 n• • -."1' • % 0 V PORTIONS being more
particularly described as follow
an assMumrNd bearing e.r �•nr;;.,,.. r�/4)co -er'of:v;d '1;�o�36;�d thence n
36 also being the ce
4...f tfi+, +�`,`,
,�� � 0' ',OW),a distance of
577.74 feet to an iro •• .'- r • aKA'r`I`tV0;0 RIVE(50'ROW);
thence North 84°57' t tir` est,along the cen -.line o •y, 'OKOLOSKEE
DRIVE,a distance of ',7► feet to an angle .=S' •I :tom nterline occupied by
a five-eighths(5/8")inc thence North 76'0 Of-1,along said
centerline,a distance of• t 4 r.._ to an ari:1- y,• ;, said centerline occupied
by a five-eighths(5/8")inch :‘• i:9:Ec,° 61.i dary of Lots 6 and 8 of said
Plat; thence South 23°34'59"West, :• • : • common boundary a distance of
28.55 feet to a point on the South right of-way line of said CHOKOLOSKEE
DRIVE,said point also being the POINT OF BEGINNING;thence continue
South 23°34'59"West along said common boundary and along the Westerly line
of those certain parcels described in O.R.Book 997,Pages 1927,1928, 1943 and
1944,Public Records of Collier County,Florida,a distance of 284.77 feet to an
angle point in said common boundary,occupied by a concrete monument;thence
South 26°11'00"West,along said common boundary and along the Westerly line
of said Parcels,a distance of 297.23 feet to an angle point in said common
boundary,occupied by a concrete monument;thence South 28°41'46"West,
continuing along said common boundary and said Westerly line,a distance of
16934 feet to the common corner of Lots 6,8, 12,and 13 of said Plat,occupied
by a punch hole in a concrete monument;thence South 27°43'26"West,along the
common boundary of said Lots 12 and 13,a distance of 27.00 feet to the
Southeast corner of the aforesaid Fee Simple Deed parcel described in O.R.Book
EXHIBIT 3
"Servient Estate"
1199,Page 2278,Public Records of Collier County,Florida;thence South
81°59'50"West,along the South line of said Fee Simple Deed parcel,a distance
of 145.90 feet to the Southwest corner thereof,said corner lying 5.32 feet West of
a PK Nail and disc in a concrete monument;thence North 32°41'28"West,along
the West line of said Fee Simple Deed parcel,a distance of 62.54 feet to the
Northwest corner thereof,said corner lying on the common boundary of said Lots
8 and 13 of said Plat and being North 87°2873"West, 191.00 feet from the
aforesaid common corner of said Lots 6, 8, 12 and 13;thence North 45°47'08"
West, across water,a distance of 113.90 feet to an iron rod in a concrete
monument being the occupied Southwest corner of said Lot 8,said monument lies
within water approximately 15 feet from the shoreline of Chokoloskee Bay and is
only visible at low tide;thence North 41°03'27"East,along the West line of said
Lot 8,a distance of 164.48 feet to an angle point in said West line,occupied by a
five-eighths(5/8")inch iron rod;thence North 30°5321"East,continuing along
said West line a distance of 134.99 feet to the Southeast corner of Lot 1 of said
PARKWAY VILLAGE OF CHOKOLOSKEE ISLAND,a Condominium,
occupied by a five-eighths(5/8")in • `. : : .•thence North 30°5079"East,
along the Easterly line of Lo �..�� ' ;„,'' .ndominium,also being the
West line of Lot 8 of said . •ce of 2 . to an angle point on said
line, said angle point o • .y a five-eighths(5/: inc iron rod;thence North
21°38'29" East,along e •':t il_T . : o aid P i.t an, along the Easterly
line of Lots 6,7 and :°of•aid on. .ce of 1-2.18 feet to the
Northeast Corner of ft o •,• . ' ;;• ..771' .. . is r ying on the South
right-of-way line of . ads I I.tril
101. d occupied by a
one(1")inch iron pi.., . ....�.�'.i ... 84°— `7 q .t, along said South
right-of-way line, a • . of 254.48 feet to,^ .„P I :77 BEGINNING.
C1�
0. •
EXHIBIT 3 ,
•
"Servient Estate"
McINI URFBOATWAYS PARCEL
A portion of Lot 13 of SMALLWOOD'S DIVISION of Section 36,Township 53 South,Range
29 East on Chokoloskee Island,according to the Plat thereof as recorded in Plat Book 1,Page 27
of the Public Records of Collier County,Florida,said portion being contiguous with and South
of the Parcel described in Fee Simple Deed recorded in Official Records Book 1199,Page 2278
of the aforesaid Public Records,said portion being one and the same parcel of land delineated
and labeled as BOATWAYS on a survey by Horace A.Wllkison of WiIkison&Associates,Inc.,
Naples,Florida dated August 4,1995 with Drawing Number 53-D-6-2,said portion being more
particularly described as follows:
,R COO
-
At at the East • 446 ,r. i , :,, : ,said Section 36, occupied by a
railroad splice in asphalt :, - -nt;thence on an as ' aring of South 89°01'01"
West,along the comm. 41444
... : Lots 7 . d 11 o-s.'• Plat,a distance of 706.20 feet
to the common come, of 1 •-:, 12 o said P F•t,o upied by a cut nail in a
concrete monument, ' '1r' .4 t-!.4.u.;.-A: ill th-common bo;rnrlary of Lots 6
and 12 of said Plat,a .. '• ' - i. ,,�•,�, ,.n ..omer of Lots 6,8, 12 and
13 of said P �i
4014., . . �'lat, occu > „,, , ,_ on : _ nt;thence South
27°30'06”West,along• common bound, Lo r 13 of said Plat,a distance of
27.00 feet to the Sou 'u s rner of the afo ..*-. -• + 4.;4, Deed Parcel,occupied by a
punch hole in the cone._. 1 ument,said corner i. 1.: ,e POINT OF BEGINNING;
thence South 28°08'54" „ IP .►: :. •11 a1on: .,:t•.,.on boundary of said Lots 12
and 13, a distance of 106.10 -- td�:. tC ,' rtherly boundary of the Smallwood
Store parcel as delineated on the o - ey;thence South 80°51'10"West,along
the South boundary of said BOATWAYS parcel, a distance of 89.14 feet to the
Southwest corner thereof,occupied by a punch hole in a concrete monument;thence
North 00°39'38"West,along the West.boundary of said BOATWAYS parcel,a distance
of 87.63 feet to the Northwest corner thereof,occupied by a punchhole in a concrete
monument,said corner lying on the South line of said Fee Simple Deed parcel;thence
North 81°46'30"East,along said South line and along the North line of said
BOATWAYS parcel, a distance of 140.51 feet to the POINT OF BEGINNING.
Said lands situate,lying and being on Chokoloskee Island,Collier,County,Florida.
4
•
EXHIBIT 4
"Approved Relocated Access Area"
•
PROPOSED ROADWAY EASEMENT (NEW)
COMMENCING AT THE EAST 1/4 CORNER OF SECTION 36 TOW ISHIP 53 SOUTH, RANGE 29 EAST COLLIER COUNTY,
FLORIDA. THENCE ON AN ASSUMED BEARING OF N 00' 12' 14 E ALONG THE EAST LINE OF SAID SECTION 36, ALSO
BEING THE CENTERLINE OF SMALLWOO DRIVE 60' ROW) A DISTANCE OF 577.74 FEET TO AN IRON ROD AT THE
CENTERLINE OF CHOKOLOSKEE DRIVE (50' ROW; THENCE N 84' 57' 50" W ALONG THE CENTERLINE OF SAID CHOKO-
LOSKEE DRIVE, A DISTANCE OF 159.01 I•ttI T AN ANGLE POINT IN SAID CENTERLINE OCCUPIED BY A 5/8 BOLT
THENCE N 76' 02' 51 W, ALpwG SAID CENTERLINE. A DISTANCE OF 408.84 FEET TO AN ANGLE POINT IN SAID
,•ENTERLINE OCCUPIED BY A 5/8 BOLT ON THE COMMON BOUNDARY OF LOTS 8 AND 8 OF SMALLWOODS DIVISION OF
SECTION 36 AS RECORDED IN PLAT B00K 1, PAGE 27 OF THE PUBLIO RECORDS OF COLLIER. COUNTY, FLORIDA' THENCE
S 23' 34 59' W ALONG SAID COMMON BOUNDARY, A DISTANCE OF 28,55 FEET TO A POINT ON THE SOUTH RIGHT OF
WAY LINE OF SAID CHOKOLOSKEE DRIVE SAID POINT ALSO BEING THE POINT OF BEGINNING OF THE HEREINAFTER
DESCRIBED NEW 20 FOOT ROADWAY EASEMENT; THENCE CONTINUE ALONG' SAID COMMON BOUNDARY S 23' 34' 59" W,
A DISTANCE OF 264.77 FEET; THENCE S 25' 11' 00" W ALONG SAID COMMON BOUNDARY A DISTANCE OF 297.23 FEET
THENCE S 28' 41' 46" W ALONG SAID COMMON BOUNDARY A DISTANCE OF 169 54 FEET; THENCE S 27' 43' 26" W
ALONG SAID COMMON BOUNDARY A D STANCE OF 68.46 FEET' THENCE LEAVING SAID COMMON BOUNDARY LINE N 02' 23'
49" E ALONG THE WEST LINE OF 1HE NEW EASEMENT OVER THE EXISTING ROAD FOR A DISTANCE OF 45.62 FEET (COMMON
LINE); THENCE LEAVING THE WEST LINE OF NEW EASEMENT OVER THE EXISTING ROAD N 28' 41' 48" E FOR A DISTANCE
OF 175.01 FEET; THENCE N 26' 11' 00" E FOR A DISTANCE OF 317 99 FEET; THENCE N 23' 34' 59" E FOR A DISTANCE
OF 273.36 FEET TO THE SOUTH RIGHT OF WAY LINE OF SAID CHOKOLOSKEE DRIVE; THENCE ALONG SAID SOUTH RIGHT OF
WAY LINE N 84' 52' 07" E A DISTANCE OF 22 80 FEET TO THE POINT OF BEGINNING THE EASEMENT DESCRIBED HEREIN
IS FOR THE EXPRESS PURPOSE OF INGRESS AND EGRESS AND FOR CONSTRUCTION OF A 16 FOOT WIDE ACCESS ROAD
•
r r
A r
EXHIBIT 2
Covenant and Exclusive Easement To Permit Continuation of Encroachment
FOR OFFICIAL USE ONLY
COVENANT AND EXCLUSIVE EASEMENT
TO PERMIT CONTINUATION OF ENCROACHMENT
For valuable consideration, receipt of which is acknowledged, and by reason of a
Settlement Agreement of even date between Florida Georgia Grove, LLP, a Florida limited
liability company ("Florida Georgia"), and TD Bank, N.A. a national banking association, on
the one hand, and Ted Smallwood Store, Inc., a Florida non-profit corporation ("TSS") and
Collier County, a political subdivision of the State of Florida ("Collier County") on the other
hand, Florida Georgia makes and enters into this covenant for the benefit of TSS and its
successors and assigns.
Florida Georgia recognizes and acknowledges that a small portion of the building owned
by TSS that is located on lands owned by TSS as described in Exhibit 1 (the "TSS Land")
encroaches over the common property line with land owned by Florida Georgia, as described on
Exhibit 2 (the"FG Land"). The building that is referred to is the"Ted Smallwood Store"which
Florida Georgia acknowledges has existed in its present location for almost 100 years.
Florida Georgia covenants and agrees that the encroachment of the building may remain
and continue to exist for so long as the "Ted Smallwood Store" building exists and remains,
including but not limited to, by reason of its reconstruction if it is damaged or destroyed by fire,
hurricane, or other calamity. Florida Georgia hereby grants, bargains, sells, and conveys an
exclusive easement to TSS over the physical area of the FG Land that is occupied by the Ted
Smallwood Store building. This easement is appurtenant to the TSS land as the dominant estate
and shall pass with title to it.
TSS has the right and an easement to also go on the FG Land as needed to maintain and
repair the Ted Smallwood Store building.
Nothing herein affords TSS any basis to claim fee title to any portion of the FG Land.
This Covenant and Easement encumbers and burdens the FG Land, as the servient estate,
and the building on it, and Florida Georgia and its representatives, successors, and assigns, and
inures to the benefit of TSS and its representatives and assigns, and the respective successor and
future owners of the TSS Land and FG Land.
Executed this day of ,2013.
Witnesses: Florida Georgia Grove,LLP
Witness#1 By:
Printed name of witness#1
as its Managing Partner
Witness#2
Printed name of Witness#2
STATE OF FLORIDA }
§§:
COUNTY OF )
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me this
day of ,2013,by as the Managing Partner of Florida
Georgia Grove, LLP, a Florida limited liability partnership, who is personally known to me or
who produced as identification.
(SEAL) Notary Public-State of Florida
Printed Name of Notary
My Commission Expires:
Page 2 of 4
SUBORDINATION
TD Bank, N.A., a national banking association, the owner and holder of mortgages and
assignments recorded in the following Official Records Books of the Collier County Public
Records: 3693, at page 566; 4356, at page 2688; 4340, at page 2958; 4626, at page 600; and
4626, at page 602,as well as by virtue of any other lien, encumbrance, or interest it may have or
claim on or in the FG Land as the Servient Estate, as described in the Covenant and Easement to
Permit Continuation of Encroachment (Covenant and Easement) to which this Subordination is
attached, hereby acknowledge and agrees that the rights conferred on Ted Smallwood Store,Inc.
by virtue of the Covenant and Easement are superior to all rights of TD Bank, N.A. under the
forgoing instruments, and to any other rights as it may otherwise claim to exist in the Servient
Estate and such rights of TD Bank,N.A. are hereby subordinated to the Covenant and Easement.
Executed this day of •2013.
Witnesses: TD Bank,N.A.
Witness#1
By:
Printed name of witness#1 ,Vice President
Witness#2
Printed name of Witness#2
STATE OF FLORIDA )
§§:
COUNTY OF )
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me this
_ day of , 2013, by , as Vice President of TD Bank,
N.A., a national banking association, who is personally known to me or who produced
as identification.
(SEAL) Notary Public-State of Florida
Printed Name of
My Commission Expires:
Page 3 of 4
A
ACCEPTANCE
Ted Smallwood Store, Inc.hereby accepts and agrees to the forgoing Covenant and
Exclusive Easement to Permit Continuation of Encroachment on the terms and conditions
granted.
Ted Smallwood Store,Inc.
By:
Lynn McMillin,Executive Director
STATE OF FLORIDA )
§§:
COUNTY OF )
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me this
day of , 2013, by Lynn McMillin as Executive Director of Ted Smallwood
Store, Inc.,a Florida not for profit corporation, who is personally known to me or who produced
as identification.
(SEAL) Notary Public-State of Florida
Printed Name of Notary
My Commission Expires:
Page 4 of 4
•
EXHIBIT 1
•
"TSS Land"
•
.
Lot 12 and a portion of Lot 13, Saallwood's Division
according to the plat thereof as recorded in Plat Book
1 at Page 27, of the Public Records of Collier County,
Florida, which said lot and portion of said lot is more
particularly bounded and described as follow.:
•
Co encing at the Last 1/4 Corner of Section 36, Township
53 South, Range 29 East, Chokoloskee, Collier County,
. Florida, Run 8. 89'03'01• V. 706.17 Feet on the Line
Dividing Lots 7 and 11 of Smallwood's Division of Section
36, Township 53 South, 29 Bast, as filed and
recorded in Plat = • - 27,' of the Public
Records of Collie �, Y= r ,1 •47 to the Original
Konustent, Coulson =) is 6, 7, • 12, and to The
. -.. , • , 1 , . Thence 8. 89.2 ''3 M. 194.83 Feet
to the Origin* 11. . . • -,E o Lo s
Thence B. 27• ' " ' - , , tl T`' . -e $8. 28"088376
•
N. 181.84 Feet. '-,, � -0. 5 Feet; Thence
B. 30'42'246 6 ' l'58" E. 59.02
Feet; Thence 11) 1217-
1 4 tt Thence N.
20'47'216 R. . . ., sinning.
Together with ,. .l
'�'Si ,iparian rig . - .u,' *looks* Bay.
/ `fit '' •
4TE cI c
•
•
i
L. _.
•
EXHIBIT 1
•
"TSS Land"
Commencing at the east quarter corner of Section 36, Township 53 south,Range
29 east, Chokoloskee, Collier County, Florida , run south 89-12-54 west on the
line dividing lot 7 and 11 of Smallwood's division of Section 36, Township 53
south,Range 29 east as filed and recorded in Plat Book 1 at page 27 of the Public
Records of Collier County, Florida, for 707.27 feet to the original monument
common to lot 6, 7, 11, and 12,thence south 89-12-24 west for 195.20 feet to the
original monument, common to lots 6, 8, 12, and 13,thence south 28-27-54 west
on the line dividing lot 12 and 13 for 127 feet to a concrete monument, THE
POINT OF BEGINNING: continue south 28-27-54 west for 56.51 feet to, a
concrete monument, thence south 66-26-39 west, 5 feet south from the south
building foundation,for 103.35 feet to a point on a seawall,thence north 23-33-21
west for 52.5 feet to a point on a seawall,thence north 66-26-39 east for 80 feet to
a concrete monument,thence north 83-47-54 east for 55.50 feet to THE POINT
OF BEGINNING. Together with all riparian rights to Chokoloskee Bay.
As per deed in Official Records Book 1157 at page 420 of the Public Records of Collier
County,Florida.
Also described below:
SMALLWOOD'S STORE PARCEL
A PORTION OF LOT 13 OF SMALLWOODS DIVISION OF SECTION 36, TOWN SHIP 53 SOUTH,
PAGEE279OF THE PUBUCKRECORDS ISLAND,COLLIER COUNTY FLORIDAA, BEINGRMORE PARRTTICULARLYI IN PLAT 1FOLLOWS:
COMMENCING AT THE EAST 1/4 CORNER OF S.y.WD SECTION 36, TOWNSHIP 53 SOUTH RANGE 29 EAST
COLLIER COUNTY, FLORIDA RUN S 59' 01' 01 W FOR 708.20 FEET ALONG THE UNE DIVIDING LOTS 7 AND 11
OF SMALLWOODS DIVISION TO THE ORIGINAL MONUMENT AT THE COMMON CORNER OF LOTS 6,7 11 AND 12; THENCE
RUN S 69' 21' 26 W FOR 194.53 FEET TO THE ORIGINAL MONUMENT AT THE COMMON CORNER OF LOTS 6,6 12 AND
13; THENCE S 27' 43' 26" W FOR 27.00 FEET TO THE ORIGINAL MONUMENT ALONG THE UNE DIVIDING LOTS {2 AND
13 S 26 08'S. W FOR 106 10 FEET TO AN IRON PIN AND OAP, LYING 27.8 FEET EAST OF AN ORIGINAL MONUMENT
AND 89.16 1.t.t.I EAST OF AN ORIGINAL MONUMENT, SAID PIN BEING THE POINT OF BEGINNING OF THE HEREINAFTER
DESCRIBED PARCEL OF LAND; THENCE CONTINUE S 28' 08' 37" W FOR 75.74 FEET TO AN ORIGINAL MONUMENT
CO' THENOE RUN S 63' 33' 14" W FOR, 60 5 FEET TO A DRILL HOLE IN CONCRETE 0.5 MORE OR LESS EAST OF CONCRETE
NCRETETSEAWALLR,UTHENCE LEAVING SAID�CONCRETE SE WAALLLL ALONG 49 w12 L579 A FOR 42 89 FEET TO TOP OF
MONUMENT,- THENCE RUN N 80• 52' 45' E FOR 89.18 FEET TO THE POINT OF BEGINNING.
THIS DESCRIPTION WAS PRODUCED FROM A FIELD SURVEY AND RECOVERED CORNERS AS REFERENCED
ON A SURVEY DONE BY HORACE A. WILKISON AND ASSOCIATES, INC., NAPLES, FLORIDA, DATED
AUGUST 4, 1995 WITH DRAWING NUMBER 53-D-6-2.
TOGETHER WITH ALL RIPARIAN RIGHTS TO CHOKOLOSKEE BAY.
PARCEL PER OFFICIAL RECORD BOOK 2236, PAGE 1843.
IN PLAT BOOK 1 T�PAGE 27, OF3TTHEMPUBLIC�RECORDS�OFACOLL{ERNCOUONTY,EFLORRIDA,THEREOF SAIRECORDED ONDD
PORTION OF SAID LOT IS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE EAST 1/4 CORNER OF %AID SECTION 36, TOWNSHIP 53 SOUTH RANGE 29 EAST CHOKOLOSKEE
COLLIER COUNTY, FLORIDA RUN S 89' 01' 01 W FOR 706.17 FEET ALONG THE UNE DIVIDING LOTS 7 AND 11
OF SMALLWOODS DIVISION OF SECTION 36, TOWNSHIP 53 SOUTH, RANGE 29 EAST AS FILED AND RECORDED IN PLAT
BOOK 1 AT PAGE 27, OF THE PUBLIC RECORDS OF COWER COUNTY, FLORIDA, TO THE ORIGINAL MONUMENT COMMON
TO LOTS B,7 11 AND 12, AND TO THE POINT OF BEGINNING• THENCE S 89' 21' 26" W 194.83 FEET TO THE ORIGINAL
MONUMENT COMMON THENCE S LOTS 3' 33x814 W 50.55 THENCE;THEN E 38 35" 4224" FEET;670 FFEET THENCE N 64' 31' 58"E
59.02 FEET; THENCE S 39' 26' 45" E 224.74 FEET; THENCE N 20' 47' 21" E 402.12 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH ALL RIPARIAN RIGHTS TO CHOKOLOSKEE BAY.
•
•
• 4
EXHIBIT 2
•
I
•
•
"FG Land"
S.T.O.F.PARCEL
A portion of the South one-half(S 1/2)of Lot 8,together with a portion of Lot 13 of
SMALLWOOD'S DIVISION of Section 36,Township 53 South,Range 29 East on Chokoloskee
Island, according to the Plat thereof as recorded in PIat Book 1,Page 27 of the Public Records of
Collier County,Florida,said portions lying South of the right-of-way of CHOKOLOSKEE
DRIVE(50'ROW)and including all of that certain Parcel of land described in Fee Simple Deed
recorded in O.R.Book 1199,Page 2278 of the aforesaid Public Records,said portions also being
contiguous with and East of the Easterly boundary of PARKWAY VILLAGE OF
CHOKOLOSKEE ISLAND,a Condominium recorded in Condominium Plat Book 39,Page 31,
Public Records of Collier County,Florida,and • . being contiguous with and West of those
Parcels described in O.R.Book 997 : and g4 921..x, -• and Pages 1943 and 1944,of the
Public Records of Collier County, ' % '11. • -•-r : a VE PORTIONS being more
particularly described as follow
' COMMENCE at the r. •ne : r 4- /4)co er of •'d .ection 36;thence on
an assumed bearing . .r•r::f y� :=. SI t 4 ne of said Section
36 also being the ce ., . ,. '`�+�, •0' „OW),a distance of
577.74 feet to an iro .. :till,,' ► tea K0151' ., 0 RIVE 50'ROW);
OW);
thence North 84°57' I ` est,along thence '�i'nI
"+W`'OKOLOSKEE
DRIVE,a distance of .:1 r feet to an angle 41, v. .terline occupied by
a five-eighths(5/8")in .. thence North 76't .t,along said
centerline,a distance of• I_ 'r. to an an . aid centerline occupied
by a five-eighths(518")inch iillEcs, h..• :TC•ndary of Lots 6 and 8 of said
Plat thence South 23°34'59"West, A.. :: common boundary a distance of
28.55 feet to a point on the South right of-way line of said CHOKOLOSKEE
DRIVE,said point also being the POINT OF BEGINNING;thence continue
South 23°34'59"West along said common boundary and along the Westerly line
of those certain parcels described in O.R.Book 997,Pages 1927, 1928, 1943 and '
1944,Public Records of Collier County,Florida,a distance of 284.77 feet to an
angle point in said common boundary,occupied by a concrete monument;thence
South 26°11'00"West,along said common boundary and along the Westerly line
of said Parcels,a distance of 297.23 feet to an angle point in said common
boundary,occupied by a concrete monument;thence South 28°41146"West,
• continuing along said common boundary and said Westerly line,a distance of
16934 feet to the common corner of Lots 6,8, 12,and 13 of said Plat,occupied
by a punch hole in a concrete monument;thence South 27°4376"West,along the
common boundary of said Lots 12 and 13,a distance of 27.00 feet to the
Southeast corner of the aforesaid Fee Simple Deed parcel described in O.R.Book
•
■
EXHIBIT 2
"FG Land"
1199,Page 2278,Public Records of Collier County,Florida;thence South
81°59'50"West, along the South line of said Fee Simple Deed parcel,a distance
of 145.90 feet to the Southwest corner thereof,said corner lying 5.32 feet West of
a PK Nail and disc in a concrete monument;thence North 32°41'28"West,along
the West line of said Fee Simple Deed parcel,a distance of 62.54 feet to the
Northwest corner thereof said corner lying on the common boundary of said Lots
8 and 13 of said Plat and being North 87°2823"West, 191.00 feet from the
aforesaid common corner of said Lots 6, 8, 12 and 13;thence North 45°47'08"
West, across water, a distance of 113.90 feet to an iron rod in a concrete
monument being the occupied Southwest corner of said Lot 8,said monument lies
within water approximately 15 feet from the shoreline of Chokoloskee Bay and is
only visible at low tide;thence North 41°0377"East,along the West line of said
Lot 8, a distance of 164.48 feet to an angle point i
EXHIBIT 2
"FG Land"
McINTURF/BOATWAYS PARCEL
A portion of Lot 13 of SMALLW OOD'S DIVISION of Section 36,Township 53 South,Range
29 East on Chokoloskee Island,according to the Plat thereof as recorded in Plat Book 1,Page 27
of the Public Records of Collier County,Florida,said portion being contiguous with and South
of the Parcel described in Fee Simple Deed recorded in Official Records Book 1199,Page 2278
of the aforesaid Public Records,said portion being one and the same parcel of land delineated
and labeled as BOATWAYS on a survey by Horace A.WRison of Wakison&Associates,Inc.,
Naples,Florida dated August 4,1995 with Drawing Number 53-D-6-2,said portion being more
particularly described as follows:
-Vt.COO-
COMMENCE at the East ., , , r ► • :„ said Section 36,occupied by a
railroad spike in asphalt ••,�v. . thence on an . T • . .. of South 89°01'01"
West,along the co•.•.►n .• :, •.•- : Lots 7 •I. 11 o s•'• Plat,a distance of 706.20 feet
to the common co ., ' of •. `. 1 •.:"I 12 o' aid P F t,o pied by a cut nail in a
concrete monument, . . ,��, :. �,. •- fifi i .common boundary of Lots 6
and 12 of said P a (IR . 11. • . - X' f'
13 of � • � +��� �..,.. on*Omer of Lots 6,8, 12 and
said Plat, =� s 14 Lastr.rinia�;,,r, it;thence South
27°30\16" West,alon; : common bound. Lo, :"`+'"F 13 of said Flat,a distance of
27.00 feet to the Sou .,'� •rner of the afor.:-. ".. + , - Deed Parcel,occupied by a
punch hole in the cone ,. . U.. . said corner ,,,� ,.,,,,,. POINT OF BEGINNING;
thence South 28°08'54" , i 41 _ ;. M,.: alo, a ..3 n boundary of said Lots 12
and 13, a distance of 106.10 ' ,. P+rtherly bound of
Store parcel as delineated on the :: y;thence South SODS `10 West, ongd
the South boundary of said BOATWAYS g
parcel,a distance of 89.14 feet to the
Southwest corner thereof occupied by a punch hole in a concrete monument;thence
North 00°39'38"West, along the West.boundary of said BOATWAYS parcel,a distance
of 87.63 feet to the Northwest corner thereof occupied by a punchhole in a concrete
monument,said corner lying on the South line of said Fee Simple Deed parcel;thence
North 81°46'30"East,along said South line and along the North be of said
BOATWAYS parcel, a distance of 140.51 feet to the POINT OF BEGINNING.
Said lands situate,lying and being on Chokoloskee Island, Collier,County,Florida.
e .ah-caneg. a . „pd
EXHIBIT 3
Stipulation to Vacate Temporary Injunction,
Quash Contempt Order,and to Dismiss with Prejudice
A
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
COLLIER COUNTY, a political
subdivision of the State of Florida, and
TED SMALLWOOD'S STORE, INC., a
Florida non-profit corporation,
Plaintiffs,
v. Case No. 2011 CA 001640
FLORIDA GEORGIA GROVE, LLP, a
Florida limited liability partnership, and
T.D. BANK, N.A., a national bank,
Defendants.
STIPULATION TO VACATE TEMPORARY INJUNCTION%
QUASH CONTEMPT ORDER, AND TO DISMISS WITH PREJUDICE
THE PARTIES, by and through their undersigned counsel, hereby stipulate as
follows:
1. The Plaintiffs and Defendant have entered into a Settlement Agreement
dated , 2013, which is attached hereto as Exhibit 1 and incorporated herein
by reference.
2. The Court shall vacate the Temporary Injunction dated October 20, 2011.
The injunction bond provided by Plaintiff, Ted Smallwood's Store, Inc., shall be released
from the Court Registry and returned to Ted Smallwood's Store, Inc. by the Clerk.
3. The Court shall quash the Contempt Order dated January 10, 2012, as
well as any and all Orders Modifying Order Adjudging Contempt.
4. This action, and all claims by and among the parties, shall be dismissed
with prejudice, each party to bear its own costs and attorneys fees.
GFP 2/11/13
5. The parties agree that the Court shall enter the Order attached hereto as
Exhibit 2.
6. This Stipulation may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall together constitute one
agreement among the parties.
SHUMAKER, LOOP & KENDRICK, LLP GRANT FRIDKIN PEARSON, P.A.
240 S. Pineapple Avenue 5551 Ridgewood Dr Ste 501
Sarasota, FL 34236 Naples, FL 34108
(941) 364-2708 (230) 514-1000
Steven J. Chase, Esq. Richard C. Grant, Esq.
Fla. Bar No.: 210277 Fla. Bar No.: 0156041
Hunter G. Norton, Esq.
Fla. Bar No.: 30534
COLLIER COUNTY ATTORNEY'S PETERSON& MYERS, P.A.
OFFICE PO Box 24628
3301 Tamiami Trl E Lakeland, FL 33802
Naples, FL 341124961 (863)683-6511
(239) 252-8400
Steven T. Williams, Esq. E. Blake Paul, Esq.
Fla Bar No.: 740101 Fla. Bar No.: 86118
W. JAMES KELLY, P.A.
144 East Center Avenue
Sebring, FL 33870-3501
(863) 471-9662
W. James Kelly, Esq.
Fla. Bar No.: 192963
•
EXHIBIT 4
Agreed Order Vacating Temporary Injunction,
Quashing Contempt Order,and Dismissing the Case with Prejudice
r M
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
COLLIER COUNTY, a political
subdivision of the State of Florida, and
TED SMALLWOOD'S STORE, INC., a
Florida non-profit corporation,
Plaintiffs,
v. Case No. 2011 CA 001640
FLORIDA GEORGIA GROVE, LLP, a
Florida limited liability partnership, and
T.D. BANK, N.A., a national bank,
Defendants.
AGREED ORDER VACATING TEMPORARY INJUNCTION,
QUASHING CONTEMPT ORDER AND DISMISSING THE CASE WITH PREJUDICE
Upon Stipulation of the parties,
IT IS ORDERED that
1. The Stipulation to Vacate Temporary Injunction, Quash Contempt Order,
and Dismiss with Prejudice is approved and is adopted as the Order of this Court.
2. The Temporary Injunction dated October 20, 2011 is vacated. The Clerk
is directed to release and return the injunction bond provided by Plaintiff, Ted
Smallwood's Store, Inc., from the Court Registry to Ted Smallwood's Store, Inc.
Payment shall be then made to Grant Fridkin Pearson, P.A.trust account, as counsel to
Ted Smallwood Store, Inc.
3. The Contempt Order dated January 10, 2012, as well as any and all
Orders Modifying Order Adjudging Contempt, are hereby quashed.
4. This action is hereby dismissed with prejudice, each party to bear their
own costs and attorneys fees.
4 , 6
DONE AND ORDERED in Chambers, Collier County, Naples, Florida on this
day of 2013.
HONORABLE LAUREN L. BRODIE
Circuit Judge
Conformed Copies to:
Richard C. Grant, Esq.
Steven J. Chase, Esq.
E. Blake Paul, Esq.
W. James Kelly, Esq.
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
COLLIER COUNTY, a political
subdivision of the State of Florida, and
TED SMALLWOOD'S STORE, INC., a
Florida non-profit corporation,
Plaintiffs,
vs. Case No.: 11-1640-CA
Honorable Lauren Brodie
FLORIDA GEORGIA GROVE, LLP, a
Florida Limited Liability Partnership, and
T.D. BANK, N.A.,a national bank,
Defendants.
I
AMENDMENT TO SETTLEMENT AGREEMENT
THIS IS AN AMENDMENT TO THE SETTLEMENT AGREEMENT by and among
Plaintiffs, COLLIER COUNTY and TED SMALLWOOD'S STORE, INC., and
Defendants, FLORIDA GEORGIA GROVE, LLP and T.D. BANK, N.A. (collectively
"Parties") (the "Settlement Agreement"). It amends the Settlement Agreement and shall
control in the event of a conflict with the Settlement Agreement.
1. The Parties agree that if, as, and when the Board of County Commissioners of
Collier County were to vacate any claim to a public easement, right of way or dedication
that thereafter Collier County will have no duty or obligation to provide any type of
maintenance and/or repair of any kind to the Current Easement as it is defined in
paragraph 6 of the Settlement Agreement, or to road, land, or driving surfaces located
thereon, either as it now exists or with respect to the Relocated Access Area, as it is
GFP 6/18/13
r '
defined and described in the form of Easement for Ingress and Egress that is Exhibit 1
to the Settlement Agreement, if such Relocated Access Area is ever applicable.
2. It is acknowledged that by execution of the Settlement Agreement, Collier County
has not vacated or abandoned its claim to a public easement or public dedication, has
no obligation to do so, and that it will only decide to do so, if at all, following the
conclusion of the statutory process to vacate same as described in paragraph 3 of the
Settlement Agreement and by virtue of a dec;sicn made at that time by the Board of
County Commissioners in their sole discretion.
3. The Approval Date in paragraph 5B of the Settlement Agreement is changed
from June 6, 2013 to December 1, 2013.
4. Defendant Florida Georgia Grove, LLP ("FG") shall obtain a Subordination in the
form attached hereto as Exhibits 1 and 2 to the instruments described in paragraphs 7A
and 7B of the Settlement Agreement from its current mortgage holder, Highlands
Independent Bank and provide same to Plaintiff, Ted Smallwood Store's Store, Inc. in
conjunction with the instruments in 7A and 7B.
5. Except as hereby amended the Settlement Agreement and its addenda remain in
force and effect.
IN WITNESS WHEREOF, the parties by their duly authorized agents have
signed this Amendment to Settlement Agreement as of the dates set forth below.
ATTEST: COLLIER COUNTY, a political subdivision
DWIGHT E. BROCK, CLERK of the State of Florida:
By:
, DEPUTY CLERK Georgia A. Hiller, Esq., Chairwoman
Collier County Board of County
Commissioners
2
u,Mo'45 MA+A%t^ll:dpli:llsin'uoi;ewiolul 0.701.11 aad J8AJos xrwL Iasi>Axed Id$Aq panl0O0a Senn xej situ
Approval for form and legal sufficiency: Attorney for Ted Smaliwood's Store, Inc.:
Kevin L. Noel!, Esq. Richard C, Grant, Esq.
Assistant County Attorney
TED SMALLWOOD'S STORE, INC., a
Florida non-profit corporation:
P
By HI A A A "37 I 014 A ,.,.
Lynn Si cKtillin,CEO
FLORIDA GEORGIA GROVE, LLP, a Attorneys for da G :fi,a=' "r. LL'
Florida limited liability partnership: ,
By' Steven J. Chase, Esq.
�► �'
Printe• Na
As Managing Partner
W. James Kelly, Esq. �
T.Q. BANK, N.A., a national bank;
Attorney for T.D. Bank,NA:
By: E. Blake Paul, Esq.
Printed Name
As Vice President
r:'4CataW✓d.IipN9aelnaitwood-itot ordu(#4 6oftwoW9lilaMttH tilarnerittnent•eati*rhFfi'FH9rePt42/?c
n.:d r .n.n.�.nnnn n�rr fw'i+�i rinn.nn nr n-..iv.n
iNd h l:91-9 E I.OVOZ/9.e eo £/£:eaed t Le l.S99£99:11.10.1d
Approval for form and legal sufficiency: Attorney for Ted Smallwood's Store, Inc.;
Kevin L. Noe II, Esq. Richard C. Grant, Esq.
Assistant County Attorney
TED SMALLWOOD'S STORE, INC., a
Florida non-profit corporation:
By:
Lynn S. McMillin, CEO
FLORIDA GEORGIA GROVE, LLP, a Attorneys for Grove, LLP:
Florida limited liability partnership:
.7)
.4110111
.2.;*
I
By ' 4111110L
Steven J. Chase, Esq.
(A4 SP 4. 4
Printed Nme
As Managing Partner
W, James Kelly, Esq.
T.D. BANK, N.A., a national bank: Attorney for T.D. Bank, N,A;
By:
E. Blake Paul, Esq.
Printed Name
As Vice President
r klata%vd iltAted-smaltwood storeiflorida gear&grovetsetliement-docakammdmonl atehiermant-aam744.-2 doe
3
Approval for form and legal sufficiency: Attorney for Ted Smallwood's Store, Inc.:
Kevin L. Noell, Esq, Richard C. Grant, Esq.
Assistant County Attorney
TED SMALLWOOD'S STORE, INC., a
Florida non-profit corporation:
By:
Lynn S. McMillin, CEO
FLORIDA GEORGIA GROVE, LLP, a Attorneys for Florida Georgia Grove, LLP.
Florida limited liability partnership:
By:
Steven J. Chase, Esq.
Printed Name
As Managing Partner - 4 - 44 46/
W. Jas Kelly, Esq.
T.D. BANK, N.A., a national bank: Attorney for T.D. Bank, N.A:
By:
E. Blake Paul, Esq.
Printed Name
As Vice President
Sciate‘wd jrtkeo-smallwood-starelflarida genla orovelsettiernentclomAamiondment settlertreni4mard doo
3
Approval for form and legal sufficiency: Attorney for Ted Smallwood's Store, Inc.:
Kevin L. Noell, Esq. Richard C. Grant, Esq.
Assistant County Attorney
TED SMALLWOOD'S STORE, INC., a
Florida non-profit corporation:
By:
Lynn S. McMillin, CEO
FLORIDA GEORGIA GROVE, LLP, a Attorneys for Florida Georgia Grove, LLP:
Florida limited liability partnership:
By:
Steven J. Chase, Esq,
Printed Name
As Managing Partner
W. James Kelly, Esq.
T.D. BANK, NA, a national bank: Attorne •• T.D. Bank, NA:
By /
,,4-4, f• 4ff
E. lake Paul, Esq.
Printed Name
As Vice President
r V.irtIMwd 011■ted-ornallwood sto,e1Porlde Door&grovmsettlement-dow■arnandniont tottlwneni•ogrywn-v-2.cloa
3
SUBORDINATION
Highlands Independent Bank, a Florida banking corporation, the owner and holder of
mortgages and assignments recorded in the following Official Records Book of the Collier
County Public Records: 4916,at page 2814, as well as by virtue of any other lien,encumbrance,
or interest it may have or claim on or in the Servient Estate, as described in the Easement for
Ingress and Egress and Utilities to which this Subordination is attached, hereby acknowledges
and agrees that this Easement and all rights of Ted Smallwood's Store, Inc., and its successors
and assigns, thereunder are superior to the rights of Highlands Independent Bank as set forth in
the instruments described above,or as it may otherwise claim to exist in the Servient Estate, and
such rights of Highlands Independent Bank are hereby subordinated to the F;asement.
Executed this 10 day of June,2013.
Fnozesses: Highlands Independent Bank
Tv/hes:in
By 4 *
T. Whiddeu Lu.Edwards,Vice President
Primed mama afivaness I
-
1{;(7);;;;#2 «,
_PAY . ly
Printed name of Witness#2
STATE OF FLORIDA
Bighlands ) §§:
COUNTY OF
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me this
0 t taay of June , 2013, by Lu Edwards , as Vice President of Highlands
Independent Bank, a Florida banking corporation, who is personally known to me or who
produced as identification,
TAMELA L.\NH lODEN e?„
--tit% Notary Public-State ot Florida
Notaty -State of Florida
i•4, l• oi My Comm.Expires May 22,2015 ,
77
IV' Commission#EE tam
4?rif,'m Bonded Through National Notary Mn Printed Name of Notary
My Commission Expires:
rldataNsvcijichted aroallwood storMeida geoi$14 igoviMaloniont-doolhighland-bank-mbordlnatiorAtioca
SUBORDINATION
Highlands Independent Batik, a Florida banking corporation, the owner and holder of
mortgages and assigments recorded in the following Official Records Book of the Collier
County Public Records: 4916,at page 2814,as well as by virtue of any other lien,encumbrance,
or interest it may have or claim on or in the PG Land as the Servient Estate, as described in the
Covenant and Easement to Permit Continuation of Encroachment (Covenant and Easement) to
which this Subordination is attached,hereby acknowledge and agrees that the rights conferred on
Ted Smallwood Store, Inc. by virtue of the Covenant and Easement are superior to all rights of
Highlands independent Bank under the forgoing instruments, and to any other rights as it may
otherwise claim to exist in the Servient Estate and such rights of Highlands Independent Bank
are hereby subordinated to the Covenant and Easement.
Executed this 10th day of June,2013.
Witnesses: Highlands Jndependent Bank
4/"1
Witness#10?
By OP**-6.ili
_L4m.Whj4 - Lu Edwards,Vice President
Printed name of witness 1
•
Warless#2
David H. Veley
Printed tialtht of Wttness#2
STATE OF FLORIDA
§§:
COUNTY OF Highlands )
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me this
...lattiay of lone , 2013, by Lu Edwards as Vice President of Highlands
Independent Bank, a Florida banking corporation, who is personally known to me or who
produced as identification.
17/
mr;
TAMELA N otaryi!ublie-State of Florida
y MIDDE 1711
4**4` (e'
$4. Notary Putglo-State of fJoride (
• My Comm.Expires May 22,2013 I rintea Name of Notary
comn1158fon EE 87312
y Commission C m Expires
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o,„,,to Bonded Through National Notary AM.
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RELEASE,
IN CONSIDERATION OF Ten (10) Dollars, the receipt of which is hereby
acknowledge, William and Patricia Vaughn ("VAUGHN") hereby releases COLLIER
COUNTY, as set forth below:
VAUGHN by these presents does for themselves, and/or any individual or
collective heir, agent, representative, executor, successor in interest, administrator and/or
assign, hereby releases, acquits, agrees to hold harmless and forever discharge,
COLLIER COUNTY, of and from any and all claims for inverse condemnation, repair
costs, loss of use, diminution in value, consequential damage, costs, expenses, and any
other thing whatsoever on account of, or in any way related to, COLLIER COUNTY
vacating and not providing any maintenance and/or repair and/or installation for access to
gain entry to VAUGHN's property located at 359 Mamie Street,Chokoloskec,FL.
Dated this 2 of JULY ,20 13 ,�-
' f`"'.
1 7
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PATRICIA VAUGHN
STATE OP FLORIDA
COUNTY OF ■ .:SGT-.(Th"
THIS RELEASE WAS SWORN TO and subscribed by WILLIAM and
PATRICIA VAUGHN, before me on this �),-.1■, day of ,.)t...-■ , 2013 .
* ... /4 . z.. .- Personally Known
Signature of Not, Public or
Produced Identification ✓"
E.C .'- ,'S io n-1 0:),2,.%OA ,P.v∎E 4.'s i.,t G cc F-,2
Commissioned Name of Notary Public Type of Identification Produced
(Please print,type or stamp)
IMy Commission expires: .c . 2,01 th=
• Notary Public -its of Florida
;,1 My Comm.Eaptrts Aug R,2016
0, ,,`4,, : t ommhuloa+y EE 223024
',t?;P i:'"� Bonded Through Raba l Way Ann.