Agenda 03/13/2012 Item #16K23/13/2012 Item 16.K.2.
EXECUTIVE SUMMARY
Recommendation to approve a Settlement Agreement and Joint Motion for Order
Approving Same in the lawsuit styled William G. Lhota et al. v. The School District of
Collier County, et al, Case No. 08- 8359 -CA Consolidated with Branch Banking and Trust
Company v. Clotilde Perez and Zenaida Perez, et al., Case No. 10- 5560 -CA. (Fiscal Impact
-None )
OBJECTIVE: That the Board of County Commissioners approve the attached Settlement
Agreement and Joint Motion for Order Approving Same in the lawsuit styled William G. Lhota
et al. v. The School District of Collier County, et al, Case No. 08- 8359 -CA Consolidated with
Branch Banking and Trust Company v. Clotilde Perez and Zenaida Perez, et al., Case No. 10-
5560-CA.
CONSIDERATIONS: This lawsuit began when BB &T Bank acquired a parcel south of the C-
1 Connector Canal along Frangipani Avenue. The bank's title work raised issues as to legal
access to the foreclosed parcel. Collier County was brought into the lawsuit as a result of various
pleadings and assertions by the School Board, which owns two large parcels in the area.
For many years the County has issued building pen-nits on the south side of the C -1 Connector
Canal. The access to these parcels has historically been along the canal maintenance easement of
the South Florida Water Management District. On January 24, 2012, the Board of County
Commissioners agreed to take over the canal maintenance area servicing the C -1 Connector
Canal from the Water District. By this settlement agreement, the County is stating that it will not
currently object to the public's continued travelling use of the easement area. The named
Plaintiffs and Defendant Perez have agreed within themselves that a 15 foot wide Easement for
each other's ingress and egress will be established parallel to the drainage easement in the event
the County should ever terminate the public's ability to use the drainage easement area in the
future. The agreement does not call for the County to make any changes to the existing situation
along Frangipani Avenue.
FISCAL IMPACT: None.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This settlement maintains the current status quo as to access
along Frangipani at no cost to the County. This Executive Summary has been drafted by the
County Attorney's Office and is legally sufficient. A majority vote is required for approval. STW
RECOMMENDATION: That the Board of County Commissioners approve the attached
Settlement Agreement and Joint Motion for Order Approving Same to be presented to the Court
for entry.
Prepared by: Steven T. Williams, Assistant County Attorney
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3/13/2012 Item 16.K.2.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.2.
Item Summary: Recommendation to approve a Settlement Agreement and Joint Motion
for Order Approving Same in the lawsuit styled William G. Lhota et al. v. The School District of
Collier County, et al, Case No. 08- 8359 -CA Consolidated with Branch Banking and Trust
Company v. Clotilde Perez and Zenaida Perez, et al., Case No. 10- 5560 -CA. (Fiscal Impact -None
Meeting Date: 3/13/2012
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
3/7/2012 9:00:01 AM
Approved By
Name: KlatzkowJeff
Title: County Attorney
Date: 3/7/2012 9:13:43 AM
Name: GreenwaldRandy
Title: Management/Budget Analyst,Office of Management & B
Date: 3/7/2012 9:35:21 AM
Name: OchsLeo
Title: County Manager
Date: 3/7/2012 9:45:08 AM
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3/13/2012 Item 16.K.2.
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR COLLIER COUNTY
CIVIL DIVISION
WILLIAM G. LHOTA and KAREN L.
LHOTA, husband and wife
Plaintiffs,
V.
THE SCHOOL DISTRICT OF COLLIER
COUNTY, FLORIDA; CLOTILDE PEREZ
and ZENAIDA PEREZ, husband and wife;
TIMOTHY T. LAINHART a/k/a TODD
LAINHART and ANTHONY I. LAINHART
a/k/a TONY LAINHART; and BRANCH
BANKING AND TRUST COMPANY,
Defendants.
BRANCH BANKING AND TRUST
COMPANY,
Plaintiff,
V.
CLOTILDE PEREZ and ZENAIDA PEREZ,
et al.
Defendants.
FA
CASE NO. 08-8359-CA
CONSOLIDATED WITH
CASE NO. 10- 05560 -CA
SETTLEMENT AGREEMENT AND JOINT MOTION FOR ORDER
APPROVING SAME
Plaintiffs, William and Karen Lhota ( "Lhota "), Plaintiff, Branch Banking and
Trust Company ( "BB &T"), Defendant, Collier County, Florida ( "Collier ") and
Defendants, Clotilda Perez and Zenaida Perez ( "Perez"), collectively ( "the Parties ")
hereby agree to a full and final settlement on the following terms:
I. The Parties acknowledge and agree that Lhota, BB &T and Perez own the
following parcels of property:
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(i) Lhota owns:
The East %2 of the Northeast 1/a of the Northwest
1/4 of the Northeast %a of Section 13, Township
49 South, Range 27 East, Collier County,
Florida.
(ii) BB &T owns:
The West %2 of the Northeast 1/4 of the
Northwest 1/4 of the Northeast 1/4 of Section 13,
Township 49 South, Range 27 East, Collier
County, Florida.
(iii) Perez owns:
The East 1/2 of the Northwest 1/4 of the
Northwest 1/4 of the Northeast 1/4 of Section 13,
township 49 South, Range 27 East, Collier
County, Florida.
2. The Parties acknowledge and agree that the northern boundary line of the
Lhota, BB &T and Perez parcels is the northern section line of Section 13, Township 49
South, Range 27 East in Collier County, Florida.
3. The Parties acknowledge and agree that the Golden Gate Estates Unit No.
51 Subdivision, recorded at Plat Book 5, Pages 84 and 85 of the Public Records of Collier
County Florida, is located immediately north of the Lhota, BB &T and Perez parcels and
that the southern boundary line of the subdivision is the northern section line of Section
13, Township 49 South, Range 27 East.
4. The Parties acknowledge and agree that in the Plat dedication for the
Golden Gate Estates Unit No. 51 Subdivision, an easement was created for drainage
purposes to the perpetual use of the public in the southern 60 feet of the subdivision
which intersects with a 60 foot easement for ingress and egress dedicated to the perpetual
use of the public along 22nd Street S.E. from Golden Gate Blvd. to the northern section
line of Section 13, Township 49 South, Range 27 East.
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5. The Parties acknowledge and agree that (i) the C -1 Connector Canal is
located within the drainage easement area in the southern 60 feet of the Golden Gate
Estates Unit 51 subdivision, (ii) a dirt road named Frangipani Avenue which runs east
and west is located immediately south of the C -1 Connector Canal, (iii) in the area
immediately north of the Lhota, BB &T and Perez parcels, Frangipani Avenue is located
within the southernmost 20 feet of the Golden Gate Estates Unit 51 subdivision and (iv)
Gulf American Land Corporation, a dissolved Florida Corporation, retained title to the
drainage easement area and has been defaulted in this case.
6. The Parties acknowledge and agree that (i) South Florida Water
Management District ( "SFWMD ") and Collier County have entered into a Third
Amendment to Cooperative Agreement (C- 11759), a copy of which is attached hereto as
Exhibit A, (ii) SFWMD has transferred all of its right, title, interest and control of the C -1
Connector Canal to Collier County, (iii) the C -1 Connector Canal is not a "work of the
district" or a "work of the basin" and SFWMD no longer has jurisdictional authority over
permitting or authorizing uses of the C -1 Connector Canal.
7. The Parties acknowledge and agree that (i) 22nd Street S.E. extends from
Golden Gate Blvd. to the northern section line of Section 13, Township 49 South, Range
27 East and this street is open for the use and benefit of the public, (ii) at the intersection
of 22nd Street S.E. and the C -1 Connector Canal there is a privately maintained culvert
bridge which is part of the public road open for the use and benefit of the public, (iii)
Perez, Lhota and BB &T have a legal right of pedestrian and vehicular access and are
entitled to ingress and egress to their parcels by driving over, across and upon 22nd Street
S.E. and Frangipani Avenue, including across the bridge over the C -1 Connector Canal,
and (iv) Perez, Lhota and BB &T have a right to utilities along Frangipani Avenue.
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3/13/2012 Item 16.K.2.
8. The Parties acknowledge and agree that if for any reason in the future the
southern 20 feet of the Golden Gate Estates Unit 51 subdivision is needed by Collier
County for drainage purposes and Collier County provides written notice to the parties
that it will no longer permit the use of Frangipani Avenue for access to 22nd Street or if
for any other reason it should become impossible to use Frangipani Avenue in its current
location, then (i) the Lhota parcel shall have a non - exclusive, perpetual easement for
utilities and pedestrian and vehicular access over and across the northern 15 feet of the
BB &T parcel and the northern 15 feet of the Perez parcel, subject to the easement rights
of FPL in the northern 10 feet, commencing on the western boundary of the Lhota parcel
and continuing to the western boundary of 22nd Street S.E. extended and (ii) the BB &T
parcel shall have a non- exclusive, perpetual easement for utilities and pedestrian and
vehicular access over and across the northern 15 feet of the Perez parcel, subject to the
easement rights of FPL in the northern 10 feet, commencing on the western boundary of
the BB &T parcel and continuing to the western boundary of 22nd Street S.E extended. In
the event FPL objects to Lhota and/or BB &T's use of the access easement in the northern
15 feet of the Perez and BB &T parcels, then the easement shall extend an additional 10
feet south, so that the easement is comprised of the northern 25 feet of the Perez and
BB &T parcels. The easements established and confirmed by the attached Order shall be
appurtenant to the parcels owned by Perez, Lhota and BB &T, the benefits and burdens
shall run with the land and apply to Perez, Lhota and BB &T and their heirs, successors in
title and assigns. The owners of the subject easements (i.e. the dominant tenements) shall
be responsible for any maintenance and/or improvements reasonably required for their
use of the easements in a safe manner on the Perez and BB &T parcels.
9. Upon approval of this Settlement Agreement by the Court and by
operation of the Order Approving Settlement Agreement, all claims in BB &T's Amended
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3/13/2012 Item 16.K.2.
Complaint and all claims in Lhota's Second Amended Complaint shall be dismissed with
prejudice as to Perez and Collier with the parties to this agreement bearing their own
attorney's fees and costs. The Parties, by and through their undersigned counsel, jointly
move for entry of the Order Approving Settlement Agreement and Confirming Legal
Right of Access and stipulate to the form of Order attached hereto as Exhibit B. The
Parties further stipulate and agree that upon entry of the Order, Plaintiffs may record the
Order in the Public Records of Collier County, Florida.
10. Within 20 days after approval of this agreement by the Circuit Court Judge
assigned to these consolidated cases, Stewart Title Guaranty Company shall pay
$3,750.00 to Perez and Old Republic National Title Insurance Company shall pay $1,250
to Perez by payment payable to "Hall, Lamb and Hall, P.A. Trust Account" and
delivering payment to Adam J. Lamb, Esq., 2665 S. Bayshore Drive, Penthouse One,
Miami, FL 33133. In the event that Perez is required to enforce this Agreement due to
the failure of a party to timely make the payments required herein, Perez shall be entitled
to reimbursement of his attorney's fees and costs incurred in connection with said
enforcement from the breaching party.
11. This Settlement Agreement is contingent upon approval by the Board of
County Commissioners of Collier County and approval by the Circuit Court Judge
assigned to these consolidated cases. Collier County agrees to submit this Settlement
Agreement to the Board of County Commissioners as soon as reasonably possible.
Upon approval of this Settlement Agreement by the Board of County Commissioners,
Plaintiff's counsel shall promptly set the Joint Motion for approval by the Court for
hearing.
12. This settlement agreement shall not prejudice in any way any claims
which BB &T and Lhota may wish to bring against their title insurers or each other and
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3/13/2012 Item 16.K.2.
any and all such claims are hereby reserved. Perez will not be named a parry to any
future actions between BB &T and/or Lhota and their respective title insurers.
13. This Agreement may be executed and delivered in counterparts any of
which shall be an original and all of which shall constitute one agreement. A signature
transmitted by fax or email shall be valid and binding as an original signature
14. Any notices under this Agreement related to the easements shall be
provided to:
16103452
Clotilde Perez and Zenaida Perez
19811 N.W. 49th Avenue
Miami Gardens, FL 33055
William and Karen Lhota
375 Goose Point
Spring City, TN 37381
Branch Banking and Trust Co.
C. Lane Martin
BB &T Bank
360 Central Avenue
Suite 1600
880- 70 -16 -00 MC
St. Petersburg, FL 33701
Collier County
3299 Tamiami Trail East, Ste. 800
Naples, Florida 34112
Old Republic National Title Insurance Company
6545 Corporate Centre Blvd.
Orlando, FL 32822
Stewart Title Guaranty Company
3402 West Cypress Street
Tampa, FL 33607
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3/13/2012 Item 16.K.2.
Dated: February ,2012
IN WITNESS WHEREOF, the parties and their counsel have executed this Agreement as
of the day and year written above.
ps � X�
DAVID L. BOYETTE, ESQUIRE
Attorney for W illimn and Karen Lhota
and Branch Banking & Trast Co.
ADAM Jr. LAMB, ESQUIRE
Attorney for Clotilde & Zenaida Perez
William Lhota
nrancn
By:
Its:
Clotilde Perez
Old Republic National Title Insurance
Company
By:
Its:
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Karen Lhota
Zenaida Perez
Stewart Title Guaranty Company
By:
its:
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3/13/2012 Item 16.K.2.
Dated: February — 2012
IN WITNESS WHEREOF, the parties and their counsel have executed this Agreement as
of the day and year written above.
DAVID L. BOXETTE, ESQUIRE
Attorney for William and Karen Lhota
and Branch Banking & Trust Co.
ADAM J. LAMB, ESQUIRE
Attorney for Clotilde & Zenaida Perez
William Lhota
Branch Banking & Trust Co.
By:
Its:
JVqJ .1
Old Republic National Title Insurance
Company
By:
Its:
15103452
Karen Lhota
da Perez
Stewart Title Guaranty Company
By:
Its•
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3/13/2012 Item 16.K.2.
Dated: February__, 2012
IN WITNESS WHEREOF, the parties and their counsel have executed this Agreement as
of the day and year written above.
DAVID L. BOYETTE, ESQUIRE
Attorney for William and Karen Lhota
and Branch Banking & Trust Co.
ADAM J. LAMB, ESQUIRE
Attorney for Clotilde & Zenaida Perez
William Lhota
Branch Banking & Trust Co.
By:
Its:
Clotilde Perez
1 lepublic NAtional Ti a Insurance
Company
By: i)pY1. W- iii . �-
its: %/ ;Op 2 } d
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Karen Lhota
Zenaida Perez
Stewart Title Guaranty Company
By:
Its:
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3/13/2012 Item 16.K.2.
Dated: February 2012
IN WITNESS WHEREOF, the parties and their counsel have executed this Agreement as
of the day and year written above.
DAVID L. BOYETFE, ESQUIRE
Attorney for William and Karen Biota
and Branch Banking & Trust Co.
ADAM J. LAMB, ESQUIRE
Attorney for Clotilde & Zenaida Perez
William Lhota
Branch Banking & Trust Co.
By:
Its:
Clotilde Perez
Old Republic National Title Insurance
Company
By:
Its:
16103452
Karen Lhota
Zenaida Perez
44-�
Stewart Title Gi&mnty Company
r n
By.- Ai /
Its: r -at u co.
Packet Page -1584-
02/28/2012 01:51 2393531825
BILL LHOTA JR 3/13/2012 Item 16.K.2.
Collier County
3291 Tamiami Trail East, Ste. goo
Naples, Florida 34112
Old Republic National Title Insurance Coml Pany
6545 Coxporate Centre Blvd
Odando, FL 32822
Stewart Title Guaranty Company
3402 Nest Cypmss Street
Tampa, FL 33607
Dated: February __, 2012
iN WITNESS WHEREOF, the parties =d their counsel ha re executed this Agreement as
of the day and year written above.
DAVID L. BOXETTE, ESQUIRE
Attorney for William and Kam Lhota
and Branch Banking & Trust Co.
ADAM J. LAMB, ESQUIRE
Attorney for Clot�de & Zet da Perez
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ATTEST:
DWIGHT E. BROCK, CLERK
, DEPUTY CLERK
Approval for form and
legal Sufficiency:
Steven T. Williams
Assistant County Attorney
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3/13/2012 Item 16.K.2.
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
MI-
FRED W. COYLE, CHAIRMAN
Dated:
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3/13/2012 Item 16.K.2.
CERTIFICATE OF SERVICE
I BEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by U.S. Mail to counsel and parties of record listed on the attached Service List this
day of , 2012.
16103452
Adams and Reese LLP
1515 Ringling Blvd., Suite 700
Post Office Box 49017
Sarasota, Florida 34230 -6017
(941) 316 -7600
By:
David L. Boyette
Florida Bar #0813140
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3/13/2012 Item 16.K.2.
SERVICE LIST
Steven J. Chase, Esquire
Ronald L. Collier, Esquire
Steven T. Williams, Esquire
Shumaker, Loop & Kendrick, LLP
Collier County Attorney's Office
40 South Pineapple Avenue, Floor 9
3301 Tamiami Trail East, 8th Floor
Sarasota, Florida 34236
Naples, Florida 34112
Co-Counsel for Branch Banking &
Counsel for Collier County
Trust Company
obert G. Menzies, Esquire
Edward Artau, Esquire
Christopher D. Donovan, Esquire
South Florida Water Management District
oetzel & Andress
Office of Counsel
50 Park Shore Drive
3301 Gun Club Road, MSC 1410
Trianon Centre, Third Floor
West Palm Beach, Florida 33406
Naples, Florida 34103
Counselfor SFWMD
Counsel or School District of Collier County
Robert J. Elder III, Esquire
Carlo F. Zampogna, Esquire
Crary, Buchanan, Bowdish, Bovie,
Woodward, Pires & Lombardo, P.A.
Beres, Elder & Williamson, Chartered
3200 Tamiami Trail North, Suite 200
759 Southwest Federal Highway, Suite 106
Naples, Florida 34103
Post Office Drawer 24
Counselfor James A. Brown Jr.,
Stuart, Florida 34995 -0024
Successor Trustee
Counsel for 623 Partners
Mark H. Shore, Esquire
Jacob E. Colgrove, Esquire
Law Offices of Glantz & Glantz, P.A.
Jacob E. Colgrove, P.A.
951 Southwest Sixth Street, Suite 200
700 Eleventh Street South, Suite 101
Plantation, Florida 33324
Naples, Florida 34102
Counsel or Joel Fleischer & Etta Fleischer
Counsel or Ma Freeman
Loyd S. Yarnell, Esquire
Raymond L. Bass Jr., Esquire
Parrish, Lawhon & Yarnell, P.A.
Bass Law Office
431 Pine Ridge Road, Suite 101
2335 Tamiami Trail North, Suite 409
Naples, Florida 34109 -3834
Naples, Florida 34103
Counsel for Andrew J. Freitas
Counsel or lilliam & Karen Lhota
Martin F. Klingenberg, Esquire
Adam J. Lamb, Esquire
1455 Blue Point Ave
Hall, Lamb & Hall, P.A.
Naples, Florida 34102 -0560
2665 South Bayshore Drive, PH One
Counsel for MPBP .I Enterprises, LLC
Miami, Florida 33133
Counsel for Defendants
lotilde Perez & Zenaida Perez
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3/13/2012 Item 16.K.2.
Mark A. Slack, Esquire
Harold N. Hume Jr., Esquire
agen E. Kellam, Esquire
Suzanne Boy, Esquire
aulich, Slack & Wolff, P.A.
Henderson, Franklin, et al.
5147 Castello Drive
ost Office Box 280
Naples, Florida 34103
Fort Myers, Florida 33902
Counsel for Joseph Felix Trutwin
Co-Counsel for Plaintiffs,
Rose Ann Trutwin
William Lhota & Karen Lhota
Santosh Jacob, Shobba Jacob
Daniel McMahon
ccamma Jacob, and Chacko Jacob
23 11 Woodland Estates Road
801 Southwest 58th Court
Naples, Florida 34117-6807
Cooper City, Florida 33328 -5734
Khali Persad and Sintra Persad
Michael Paul Christensen
912 William Wallace Way
2170 Woodland Grace Road
Austin, Texas 78754
Naples, Florida 34117 -8818
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SOUTH FLORIDA WATER MANAGEMENT DISTRICT
RESOLUTION O. 2012-
A RESOLUTION OF THE GOVERNING BOARD OF THE SOUTH FLORIDA WATER
MANAGEMENT DISTRICT TO-AUTHORIZE ENTERING INTO A THIRD AMENDMENT TO A
-COOPERATIVE.--AGREEMENT- (Coi1:1759) 'BETWEEN THE SOUTH --- FLORIDA :WATER
MANAGEMENT :DISTRICT AND COLLIER QDUNTY FOR THE. PURPOSE OF EXTENOING
THE TERMINATION DATE OF THE: AGREEMENT FROM SEPTEMBER 301 2012 TO
SEPTEMBER 30, 2014 AND MODIFY(Nd: AND AMENDING THE AGREEMENT AS SET
FORTH IN THE AMENDMENT; PROVIDING' AN EFFECTIVE DATE.
:WHEREAS, the Governing Board of South !Florid&Water Management District deems it necessary,
appropriate and In the:.Publ.ib.interest. to autbariz,e, entering Into a Third Amendment to a Cooperative
Agreement ,(C-1 1150) between..1he South Florida Water` Mannement Distn.0t. and Collier: Cou:nt for.the
purpose :of!extending th6..:tef,rrn,!.nafion..date.of;the aar6ernent:ftom, September 30, 2012 to:September 30, 2024,
and modifying and amending the 'Agreefrient. as:sef.forth ;in.the amendment:, p-Mviditig an effective date.
(Clarence Tears, ext. . 76011.and.
NOW THER FORE, �BE .y
:1T:RESOLVED.b 1he:Govern'fng Board of the South Florida. Water
Management Distript,;
.Section 1. The .GoveM...,ing.Bo4rdof .tbo: South ..Florida Watet Management District ;hereby authorizes the
execution o.f Contract Number C- 1'1759 with Collier.-County.
S-6eticin2. This ,resolution, shall take :effect immediately upon adoption.
PASSED and ADOPTED , this 0, dayof Februe, 2 .1.2.
FIR-11SIT
1k
24,JAN-2012 03.42:16 12004 Page I
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3/13/2012 Item 16.K.2.
THIRD AMENDMENT TO
COOPERATIVE AGREEMENT (C- 11759) BETWEEN THE
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
AND
COLLIER COUNTY, FLORIDA
THIS THIRD AMENDMENT TO COOPERATIVE AGREEMENT (C- 11759) BETWEEN
THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT
AND COLLIER COUNTY, FLORIDA (`Third Amendment', is entered into as of the
day of 2012 by and between SOUTH FLORIDA WATER
MANAGEMENT DISTRICT, a government entity created by Chapter 373, Florida
Statutes (hereinafter referred to as "DISTRICT"), and COLLIER COUNTY, FLORIDA, a
political subdivision of the State of Florida (hereinafter referred to as "COUNTY").
WITNESSETH:
WHEREAS, DISTRICT and COUNTY entered into a certain Cooperative
Agreement dated October 13, 2000, designated by the District as Contract C -11759 (the
"Original Agreement ");
WHEREAS, pursuant to that certain First Amendment to Cooperative Agreement
(C- 11759) Between the South Florida Water Management District and Collier County
Florida dated February 10, 2011 ( "First Amendment"), DISTRICT and COUNTY agreed
- to prevent the Original Agreement from lapsing and terminating, in accordance: with
paragraph 1 of the Agreement, by agreeing to an extension of the termination date set
forth in the Original Agreement from February 28, 2011 to May 31, 2011;
WHEREAS, pursuant to that certain Second Amendment to Cooperative
Agreement (C- 11759) Between the South Florida Water Management District and
Collier County Florida dated May 10th 2011 ( "Second Amendment "), DISTRICT and
COUNTY further extended the termination date of the Agreement from May 31, 2011 to
September 30, 2012 (the Original Agreement as modified, amended and extended by
the First Amendment and the Second Amendment is herein referred to as the
"Agreement ");
WHEREAS, DISTRICT and COUNTY desire to further extend the termination
date of the Agreement from September 30, 2012 to September 30, 2024, and to modify
the provisions relating to termination;
WHEREA, DISTRICT and COUNTY desire to modify and amend the Agreement
to provide specific special terms, conditions and provisions with respect to the C -1
Connector Canal Right of Way, portions of the Golden Gate Main Canal Right of Way
and portions of the Miller Canal Right of Way; and
WHEREAS, the defined terms in this Third Amendment shall have the same
definitions as defined in the Agreement;
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3/13/2012 Item 16.K.2.
NOW THEREFORE for good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, DISTRICT and COUNTY hereby agree to
modify, amend and extend the Agreement as follows:
1. The foregoing recitals are true and correct and are hereby incorporated
herein by reference.
2. Paragraph 1 of the Agreement is hereby modified, amended and replaced
with the following:
1. Unless extended or earlier terminated, this AGREEMENT
shall continue until September 30, 2024; and may be renewed upon
mutual agreement of the parties. Each party shall provide notice of
its intent to renew or not renew this AGREEMENT to the other
party on or before September 1, 2023. In the event that the parties
do not mutually agree to an extended renewal period, this
AGREEMENT shall automatically lapse, terminate, and expire on
September 30, 2024. Subject to the terms, conditions and
provisions of this AGREEMENT the DISTRICT shall be the public
agency. in Collier County, Florida generally responsible for the
control, operation and maintenance of the watercourses listed in
Exhibit: "A ", "and depicted on `Exhibit "B ",' both of which are attached
hereto and. =made a part of this AGREEMENT,. (except as set forth
in paragraph 3 of this Third Amendment). In the event either party
decides not. to renew this AGREEMENT., DISTRICT agrees to
assist COUNTY to transition into the operation and maintenance of
the watercourses which are the subject of the AGREEMENT.
3. Notwithstanding anything contained in the Agreement, or this Third
Amendment to the contrary, DISTRICT and COUNTY hereby agree to the following
specific special terms, conditions, and provisions applicable to the C -1 Connector Canal
Right of Way, portions of the Golden Gate Main Canal Right of Way and portions of the
Miller Canal Right of Way:
a. C -1 Connector Canal Right of Way. A strip of land in Sections 11 and
12, Township 49 South, Range 27 East, Collier County, Florida, generally
depicted on Schedule "1" attached hereto and made a part hereof, and more
particularly described as follows:
All that drainage easement, 60 feet in width, commonly referred to
as "C -1 Connector Canal Right of Way", lying along the South lines
of Golden Gate Estates Unit No. 48, Plat Book 5, Page 78 and
Golden Gate Estates, Unit No. 51, Plat Book 5, Page 84. All plats
recorded in Collier County, Florida, Public Records. (Hereinafter
referred to as the "C -1 Connector Canal Right of Way ").
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3/13/2012 Item 16.K.2.
(1) DISTRICT hereby transfers all of its right, title, interest and Aw
control in the C -1 Connector Canal Right of Way to COUNTY.
(2) The DISTRICT will "Un- adopt" the C -1 Connector Canal Right of
Way as a "Work of the District ", upon which the C -1 Connector Canal Right of
Way shall no longer be subject to the provisions of Chapter 40E -6 of the Florida
Administrative Code, and the DISTRICT shall no longer have jurisdictional
authority over permitting and authorizing uses of the C -1 Connector Canal Right
of Way.
(3) Upon passing a resolution, "Un- adopting" the C -1 Connector
Canal Right of Way as a "Work of the' District", DISTRICT Right of Way Permit
No. 10267 in favor of the School District of Collier County concerning a culvert
bridge crossing across the C -1 Connector Canal Right of Way shall be void and
have no further force or effect. In addition, the culvert bridge crossings across
the C-1 Connector Canal Right of Way located at the southern terminus of 10th,
18th, 20th, and 22nd Streets Southeast shall be considered pre - existing non-
conforming structures and shall be allowed to remain in their current location and
condition until such time that, (a) the affected property owners desire to upgrade
the crossing(s), or (b) the condition of'-the crossing(s) deteriorates to an.
unacceptable level as determined by the COUNTY ° and requires replacement..
Upon the occurrence' of 'either° condition `(a) or' condition (b) referenced in the.
preceding sentence, the modification; ='repiacenaent and /or reconstruction shall-
conform to the COUNTY's Right of Way permitting criteria applicable at the time
of such modification, replacement and/&_- oconstruction, and shall accommodate
a flowage capacity of at least 250 cfs.
(4) COUNTY shall have full authority, control and jurisdiction with
respect to authorizing uses with respect to the C -1 Connector Canal Right of
Way, including but not limited to authorizing vehicular crossings and authorizing
vehicular use of the overbank areas. COUNTY agrees that it will not authorize
any new uses with respect to the C -1 Connector Canal Right of Way which do
not accommodate a flowage capacity of at least 250 cfs. COUNTY agrees to
notify the DISTRICT of all uses authorized by the COUNTY with respect to the C-
1 Connector Canal Right of Way.
(5) With respect to the C -1 Connector Canal, the DISTRICT agrees
to continue to provide: (i) aquatic plant control, (ii) maintenance shoal removal,
and (iii) canal side bank maintenance (if operation of the system is impaired), to
the extent the performance of such maintenance is reasonably practical and
does not conflict with uses authorized by the COUNTY. The COUNTY shall be
responsible for removing flow obstructions not authorized by the COUNTY.
(6) The DISTRICT agrees to notify the COUNTY of any uses or
flow obstructions with respect to the C -1 Connector Canal Right of Way which
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3/13/2012 Item 16.K.2.
impede the DISTRICT'S ability to perform the maintenance referenced in the first
sentence of subparagraph (5) above or which is inconsistent with the flowage
capacity criteria specified in subparagraphs (3) and (4) above.
(7) In order to perform the maintenance activities referenced in
subparagraph (5) above, the DISTRICT shall have the right of access, ingress
and egress with respect to the C -1 Connector Canal Right of Way.
b. Portion of Golden Gate Main Canal Right of Way. A strip of ]and in
Sections 10 and 11, Township 49 South, Range 27 East, Collier County, Florida,
generally depicted on Schedule "1" attached hereto and made a part hereof, and
more particularly described as follows:
All that part of a drainage easement, 140 feet in width, commonly
referred to as "Golden Gate Main Canal
Right of Way ", lying North of the South line of Golden Gate Estates,
Unit 13, Plat Book 7, Page 72, Collier County, Florida, Public
Records and South of the South top of bank of said Golden Gate
Main Canal. (Hereinafter referred to as the "Golden Gate Main
South Overbank").
'(1) . DISTRICT hereby transfers all of its right,
title, .interest and
control in the: Golden Gate Main South -Overbank to COUNTY.
(2) The .DISTRICT will "Un- adopt" the Golden Gate Main South
Overbank as a "Work of the District" upon which the Golden Gate Main South
Overbank shall no longer be subject to the provisions of Chapter 40E -6 of the
Florida Administrative Code, and the DISTRICT shall no longer have
jurisdictional authority over permitting and authorizing uses of the Golden Gate
Main South Overbank.
(3) COUNTY shall have full authority, control and jurisdiction with
respect to authorizing uses with respect to the Golden Gate Main South
Overbank, including but not limited to authorizing vehicular use of the Golden
Gate Main South Overbank.
(4) DISTRICT shall have no maintenance obligations with respect
to the Golden Gate Main South Overbank.
(5) DISTRICT shall have the right of access, ingress and egress
with respect to the Golden Gate Main South Overbank.
c. Portion of Miller Canal Right of Way. A strip of land in Section 12,
Township 49 South, Range 27 East and Sections 7, 18, 19 and 30 Township 49
South, Range 28 East, Collier County, Florida, generally depicted on Schedule
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3/13/2012 Item 16.K.2.
"1" attached hereto and made a part hereof, and more particularly described as
follows:
All that part of a drainage easement 95 feet in width, commonly
referred to as "Miller Canal Right of Way ", lying North of the South
lines of Golden Gate Estates, Unit 51, Plat Book 5, Page 84 and
Golden Gate Estates, Unit 82, Plat Book.5, Page 21 and South of
the South top of bank of said Miller Canal.
Together-With;
All that part of said drainage easement lying East of the West lines
of said Golden Gate Estates, Unit No.82, Golden Gates Estates,
Unit No. 87, Plat Book 5, Page 26, and Golden Gate Estates, Unit
No. 88,�Plat Book 5, Page,27and West of the West top of bank of
said Miller Canal and North of the South line of &' Avenue SE. All
plats. recorded in Collier County, Florida, Public Records.
(Hereinafter referred to as the "Miller Canal South/West
OverbanW).
(1) DISTRICT hereby transfers all of its right, title, interest and
control in the.:Miller Canal SoutWest Overbank to COUNTY.
(2) The DISTRICT will "Un- adopt" the Miller Canal South/West
Overbank as .a "Vllork- of the District'; -upon which the Miller Canal South/West
Overbank .shall no longer be subject to the provisions of Chapter 40E -6 of. the
Florida Administrative Code, and the DISTRICT shall no longer have
jurisdictional authority over permitting and authorizing uses of the Miller Canal
South!West Overbank.
(3) COUNTY shall have full authority, control and jurisdiction with
respect to authorizing uses with respect to the Miller Canal SouthMest
Overbank, including but not limited to authorizing vehicular use of the Miller
Canal South/West Overbank.
(4) DISTRICT shall have no maintenance obligations with respect
to the Miller Canal South/West Overbank.
(5) DISTRICT shall have the right of access, ingress and egress
with respect to the Miller Canal South/West Overbank.
4. The following provision is hereby added as paragraph 29, to the
Agreement:
29. Notwithstanding anything to the contrary, either party to this
Agreement shall have the right to terminate this Agreement for any reason
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3/13/2012 Item 16.K.2.
and upon such termina #ion, all right, title; interest, control; operation and
maintenance of the watercourses/canal rights of way, together with all
structures., as set forth in Exh bi# "A".. to this Agreement, and as modified by
any I supplement thereto and Structures "), shall be relinquished
and .transferred to the County The party exercising the termination option
-
shall .give to the other party..-- notice that the Mori<s and Structures
are to be- transferred to the County.: In order to. coincide with Ahe budget
year; unless otherwise agreed .to: final transfer and `termination of this
Agreement shall be effective Ahe. second` October 1st. following receipt of
the notice of termination, . (n the event of such #erminatlon, both parties .
shall-be.-relieved of any and all future olligations under this Agreemen# as
of Ahe effective date of the termination; iiticluding buff not limited: to, lost
.revenues and consequential.damages
0
`SQ�i7H FLORIDA WATER iNIANAGEtUIEl11T
D[STRICT, BY 1TS GOVER.,ING 'BiOARD
s
Executed by DI5TRICTon
COLLIER COUNTY, FLORIDA
By: �-
App r v a to form and legal sufficiency:
7effre. A Latzkow
Coun. A toI
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR COLLIER COUNTY
CIVIL DIVISION
WILLIAM G. LHOTA and KAREN L.
LHOTA, husband and wife
Plaintiffs,
V.
THE SCHOOL DISTRICT OF COLLIER
COUNTY, FLORIDA; CLOTILDE PEREZ
and ZENAIDA PEREZ, husband and wife;
TIMOTHY T. LAINHART a/k/a TODD
LAINHART and ANTHONY I. LAINHART
a/k/a TONY LAINHART; and BRANCH
BANKING AND TRUST COMPANY,
Defendants.
BRANCH BANKING AND TRUST
COMPANY,
Plaintiff,
V.
CLOTILDE PEREZ and ZENAIDA PEREZ,
et al.
Defendants.
CASE NO. 08-8359-CA
CONSOLIDATED WITH
CASE NO. 10- 05560 -CA
ORDER APPROVING SETTLEMENT AGREEMENT AND CONFIRMING
LEGAL RIGHT OF ACCESS
This action came before the Court on the Settlement Agreement and Joint Motion
for Order Approving same of Plaintiffs, William and Karen Lhota ( "Lhota "), Plaintiff,
Branch Banking and Trust Company ( "BB &T"), Defendant, Collier County, Florida
( "Collier ") and Defendants, Clotilda Perez and Zenaida Perez ( "Perez "), the Court having
reviewed the Settlement Agreement and being otherwise duly advised, it is hereby
FOUND, ORDERED and ADJUDGED: EXHIBIT
a
� B
14371252
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3/13/2012 Item 16.K.2.
1. Lhota owns the following parcel of property:
The East 1/2 of the Northeast' /4 of the Northwest
1/4 of the Northeast 1/4 of Section 13, Township
49 South, Range 27 East, Collier County,
Florida.
2. BB &T owns the following parcel of property:
The West 1/2 of the Northeast 1/4 of the
Northwest '/4 of the Northeast 1/4 of Section 13,
Township 49 South, Range 27 East, Collier
County, Florida.
3. Perez owns the following parcel of property:
The East %Z of the Northwest 1/4 of the
Northwest 1/4 of the Northeast 1/4 of Section 13,
township 49 South, Range 27 East, Collier
County, Florida.
4. The northern boundary line of the Lhota, BB &T and Perez parcels is the
northern section line of Section 13, Township 49 South, Range 27 East in Collier County,
[a•r� M
5. The Golden Gate Estates Unit No. 51 Subdivision, recorded at Plat Book
5, Pages 84 and 85 of the Public Records of Collier County Florida, is located
immediately north of the Lhota, BB &T and Perez parcels and the southern boundary line
of the subdivision is the northern section line of Section 13, Township 49 South, Range
27 East.
6. in the Plat dedication for the Golden Gate Estates Unit No. 51
Subdivision, an easement was created for drainage purposes to the perpetual use of the
public in the southern 60 feet of the subdivision which intersects with a 60 foot easement
for ingress and egress dedicated to the perpetual use of the public along 22nd Street S.E.
14371252
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3/13/2012 Item 16.K.2.
from Golden Gate Blvd. to the northern section line of Section 13, Township 49 South,
Range 27 East.
7. The C -1 Connector Canal is located within the drainage easement area in
the southern 60 feet of the Golden Gate Estates Unit 51 subdivision, a dirt road named
Frangipani Avenue which runs east and west is located immediately south of the C -1
Connector Canal and in the area immediately north of the Lhota, BB &T and Perez
parcels, Frangipani Avenue is located within the southernmost 20 feet of the Golden Gate
Estates Unit 51 subdivision. Gulf American Land Corporation, a dissolved Florida
corporation, retained title to the drainage easement area and has been defaulted in this
action. The rights, title and interest of Gulf American Land Corporation in and to the
drainage easement area in the southern 60 feet of the Golden Gate Estates Unit 51
subdivision is subject and inferior to the drainage easement created in the plat and the
rights of Perez, Lhota and BB &T to use Frangipani Avenue in the southern 20 feet of the
Golden Gate Estates Unit 51 subdivision.
8. South Florida Water Management District ( "SFWMD ") and Collier
County have entered into a Third Amendment to Cooperative Agreement (C- 11759), a
copy of which is attached hereto as Exhibit A, by which SFWMD has transferred all of
its right, title, interest and control of the C -1 Connector Canal to Collier, and by which it
is confirmed that the C -1 Connector Canal is not a "work of the district" or a "work of the
basin" and SFWMD no longer has jurisdictional authority over permitting or authorizing
uses of the C -1 Connector Canal.
9. 22 °d Street S.E. extends from Golden Gate Blvd. to the northern section
line of Section 13, Township 49 South, Range 27 East which is open for the use and
14371252
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3/13/2012 Item 16.K.2.
benefit of the public. At the intersection of 22nd Street S.E. and the C -1 Connector Canal
there is a privately maintained culvert bridge which is part of the public road open for the
use and benefit of the public.
10. Perez, Lhota and BB &T have a legal right of pedestrian and vehicular
access and are entitled to ingress and egress to their parcels by driving north and south
over, across and upon 22nd Street S.E., including across the bridge over the C -1
Connector Canal, and then by driving east and west over, across and upon Frangipani
Avenue within the southern 20 feet of the Golden Gate Estates Unit 51 subdivision. In
addition, Perez, Lhota and BB &T have a right to utilities along Frangipani Avenue.
11. If for any reason in the future the southern 20 feet of the Golden Gate
Estates Unit 51 subdivision is needed by Collier County for drainage purposes and
Collier County provides written notice to the parties that it will no longer permit the use
of Frangipani Avenue for access to 22nd Street, or if for any other reason it should
become impossible to use Frangipani Avenue in its current location, then (i) the Lhota
parcel shall have a non - exclusive, perpetual easement for utilities and pedestrian and
vehicular access over and across the northern 15 feet of the BB &T parcel and the
northern 15 feet of the Perez parcel, subject to the easement rights of FPL in the northern
10 feet, commencing on the western boundary of the Lhota parcel and continuing to the
western boundary of 22nd Street S.E. extended and (ii) the BB &T parcel shall have a non-
exclusive, perpetual easement for utilities and pedestrian and vehicular access over and
across the northern 15 feet of the Perez parcel, subject to the easement rights of FPL in
the northern 10 feet, commencing on the western boundary of the BB &T parcel and
continuing to the western boundary of 22nd Street S.E extended. In the event FPL objects
14371252
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3/13/2012 Item 16.K.2.
to Lhota and/or BB &T's use of the access easement in the northern 15 feet of the Perez
and BB &T parcels, then the easement shall extend an additional 10 feet south, so that the
easement is comprised of the northern 25 feet of the Perez and BB &T parcels. The
easement and rights of way established and confirmed by this Order shall be appurtenant
to the parcels owned by Perez, Lhota and BB &T, the benefits and burdens shall run with
the land and apply to Perez, Lhota and BB &T and their heirs, successors in title and
assigns. The owners of the subject easements (i.e. the dominant tenements) shall be
responsible for any maintenance and/or improvements reasonably required for their use
of the easements in a safe manner on the BB &T and Perez parcels.
12. The Settlement Agreement by and between Lhota, BB &T, Perez, and
Collier has been approved by the Board of County Commissioners of Collier County and
is hereby approved and made an Order of this Court.
13. All claims in BB &T's Amended Complaint and all claims in Lhota's
Second Amended Complaint are dismissed with prejudice as to Perez and Collier and
Lhota, BB &T, Collier and Perez shall each bear their own attorney's fees and costs as
between each other. This Order shall be recorded in the Public Records of Collier
County, Florida.
DONE and ORDERED in Collier County, Florida on this _ day of , 2012.
cc: to all parties on the attached service list
14371252
Honorable Elizabeth Krier
Circuit Court Judge
Packet Page -1616-
3/13/2012 Item 16.K.2.
SERVICE LIST
Steven J. Chase, Esquire
Steven Williams, Esquire
Ronald L. Collier, Esquire
Collier County Attorney's Office
Shumaker, Loop & Kendrick, LLP
3301 Tamiami Trail East, a Floor
240 South Pineapple Avenue, Floor 9
Naples, Florida 34112
Sarasota, Florida 34236
Counsel for Collier County
Co- Counsel for Branch Banking &
Trust Company
Robert G. Menzies, Esquire
Edward Artau, Esquire
Christopher D. Donovan, Esquire
South Florida Water Management District
Roetzel & Andress
Office of Counsel
850 Park Shore Drive
3301 Gun Club Road, MSC 1410
Trianon Centre, Third Floor
West Palm Beach, Florida 33406
Naples, Florida 34103
Counsel for SFWMD
Counsel or School District of Collier County
Robert J. Elder III, Esquire
Carlo F. Zampogna, Esquire
Crary, Buchanan, Bowdish, Bovie,
Woodward, Pires & Lombardo, P.A.
Beres, Elder & Williamson, Chartered
3200 Tamiami Trail North, Suite 200
759 Southwest Federal Highway, Suite 106
Naples, Florida 34103
Post Office Drawer 24
Counsel for James A. Brown Jr.,
Stuart, Florida 34995 -0024
Successor Trustee
Counsel or 623 Partners
Mark H. Shore, Esquire
Jacob E. Colgrove, Esquire
Law Offices of Glantz & Glantz, P.A.
Jacob E. Colgrove, P.A.
7951 Southwest Sixth Street, Suite 200
700 Eleventh Street South, Suite 101
Plantation, Florida 33324
Naples, Florida 34102
Counsel or Joel Fleischer & Etta Fleischer
Counsel or Mary Freeman
Floyd S. Yarnell, Esquire
Raymond L. Bass Jr., Esquire
Parrish, Lawhon & Yarnell, P.A.
Bass Law Office
3431 Pine Ridge Road, Suite 101
2335 Tamiami Trail North, Suite 409
Naples, Florida 34109 -3834
Naples, Florida 34103
Counsel or Andrew J. Freitas
Counsel or William & Karen Lhota
Martin F. Klingenberg, Esquire
Adam J. Lamb, Esquire
1455 Blue Point Ave
Hall, Lamb & Hall, P.A.
Naples, Florida. 34102 -0560
2665 South Bayshore Drive, PH One
Counsel forMPBP I Enterprises, LL
Miami, Florida 33133
Counsel for Defendants
Clotilde Perez & Zenaida Perez
14371252
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3/13/2012 Item 16.K.2.
Mark A. Slack, Esquire
Harold N. Hume Jr., Esquire
Magen E. Kellam, Esquire
Suzanne Boy, Esquire
Paulich, Slack & Wolff, P.A.
Henderson., Franklin, et al.
5147 Castello Drive
Post Office Box 280
Naples, Florida 34103
Fort Myers, Florida 33902
Counsel for Joseph Felix Trutwin
Co- Counsel for Plaintiffs,
& Rose Ann Trutwin
William Lhota & Karen Lhota
Santosh Jacob, Shobba Jacob
David Boyette, Esquire
Accamma Jacob, and Chacko Jacob
Adams and Reese, LLP
9801 Southwest 58'b Court
1515 Ringling Blvd., Suite 700
Cooper City, Florida 33328 -5734
Sarasota, Florida 34236
Attorney for Plaintiffs
Daniel McMahon
Khali Persad and Sintra Persad
2311 Woodland Estates Road
6912 William Wallace Way
Naples, Florida 34117 -6807
Austin, Texas 78754
Michael Paul Christensen
2170 Woodland Grace Road
Naples, Florida 34117 -8818
14371252
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