HomeMy WebLinkAboutMcGaba-Conservation Easement Agreement- 2005 04 11
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Prepared by and return to:
Anthony A. Garganese, Esquire
City Attorney of Winter Springs
Brown, Garganese, Weiss & D'Agresta, P.A.
Post Office Box 2873
Orlando, Florida 32802-2873
(407) 425-9566
"'HY~ MORSE, CLERK IF CIRCUIT COURT
sa4INOLE COl.NTY
BK 05885 PGS 01E.7-017E.
CLERK'S # 2005150E.78
~CUMDCD 09/0112005 03120115 PM
Rf:WHDlNa FEl::S 86. 50
~cu~ 8'1 D TholAS
CONSERVATION EASEMENT AGREEMENT
THIS CONSERVATION EASEMENT AGREEMENT is made this ---1L day of
AFfl-4<<- ,2005, by MCGABA, LLC, a Florida limited liability company, ("Grantor")
having a mailing address of 4986 Courtland Loop, Winter Springs, Florida 32708, in favor of the
CITY OF WINTER SPRINGS, a Florida municipal corporation whose address is 1126 East State
Road 434, Winter Springs, Florida 32708 ("Grantee").
WITNESSETH:
WHEREAS, Grantor solely owns in fee simple certain real property located in the City of
Winter Springs, Seminole County, Florida, more particularly described in Exhibit "A" attached
hereto and incorporated herein ("Conservation Property"); and
WHEREAS, the Grantor is constructing a commercial development project on real property
("Project"), which is subject to the regulatory jurisdiction of the Grantee; and
WHEREAS, pursuant to the City of Winter Springs Comprehensive Plan, Conservation
Element, Policy 1.4.4, the Grantor is required, and desires, to convey a conservation easement in
certain identified Conservation Property described in Exhibit "A" in consideration of the grant of
a development order approved by the City of Winter Springs for that proposed construction ofthe
commercial development commonly referred to as "Villagio". The scope ofthe Project as identified
more particularly in the final engineering and site plans approved by the City of Winter Springs,
which plans are available through the offices of the Grantee at City Hall; and
WHEREAS, the Grantor has developed and proposed as part of the permit conditions a
conservation tract and maintenance buffer involving preservation of certain wetland and/or upland
systems on the Conservation Property; and
WHEREAS, Grantor desires to preserve the Conservation Property in its natural condition
in perpetuity; and
Conservation Easement
McGaba, LLC/City of Winter Springs
Page 1 of7
WHEREAS, Grantor, in consideration ofthe consent granted by the Permit, is agreeable to
granting and securing to the Grantee a perpetual conservation easement as defined in Section 704.06,
Florida Statutes, over the Conservation Property; and
NOW, THEREFORE, in consideration of the above and the mutual covenants, terms,
conditions and restrictions contained herein, and pursuant to the provisions of Section 704.06,
Florida Statutes, Grantor hereby voluntarily grants and conveys to Grantee a conservation easement
in perpetuity over the Conservation Property ofthe nature and character and to the extent hereinafter
set forth (the "Conservation Easement"). Grantor fully warrants title to said Conservation Property,
and will warrant and defend the same against the lawful claims of all persons whomsoever:
1. Incorporation of Recitals. The foregoing recitals are hereby incorporated fully
herein by this reference.
2. Purpose of Easement. This Conservation Easement is granted for the express and
sole purpose to assure that the Conservation Property will be retained forever in its existing natural
condition and to prevent any use ofthe Conservation Property that will impair or interfere with the
environmental value of the Conservation Property.
3. Prohibited Uses. Except for restoration, creation, enhancement, maintenance and
monitoring activities, or surface water management improvements, which may be permitted or
required by law or government permit, the following activities are prohibited in or on the
Conservation Property:
(a) Construction or placing buildings, roads, signs, billboards or other advertising,
utilities or other structures on or above the ground.
(b) Dumping or placing soil or other substance or material as landfill or dumping or
placing of trash, waste or unsightly or offensive materials.
(c) Removing or destroying trees, shrubs, or other vegetation.
(d) Excavating, dredging or removing loam, peat, gravel, soil, rock or other material
substances in such a manner as to affect the surface.
( e) Surface use, except for purposes that permit the land or water area to remain
predominantly in its natural condition.
(1) Activities detrimental to drainage, flood control, water conservation, erosion control,
soil conservation, or fish and wildlife habitat preservation.
(g) Acts or uses detrimental to such retention of land or water areas.
Conservation Easement
McGaba, LLC/City of Winter Springs
Page 2 of7
(h) Acts or uses detrimental to the preservation of the structural integrity or physical
appearance of sites or properties of historical, architectural, archaeological, or
cultural significance.
(i) Any uses in violation of the City of Winter Springs Comprehensive Plan and Code
of Ordinances, as may be amended from time to time. .
4. Reserved Riehts. Grantor reserves unto itself, and its successors and assigns, all
rights accruing from its ownership ofthe Conservation Property, including the right to engage in or
permit or invite others to engage in all uses of the Conservation Property, that are not expressly
prohibited herein and are not inconsistent with the purpose of this Conservation Easement.
5. Riehts of Grantee. To accomplish the purposes stated herein, Grantor conveys the
following rights to Grantee:
(a) To enter upon and inspect the Conservation Property in a reasonable manner and at
reasonable times to determine if Grantor or its successors and assigns and any
invitees thereof are complying with the covenants and prohibitions contained in this
Conservation Easement.
(b) To proceed at law or in equity to enforce the provisions of this Conservation
Easement and the covenants set forth herein, to prevent the occurrence of any of the
prohibited activities set forth herein, and require the restoration of areas or features
of the Conservation Property that may be damaged by any activity inconsistent with
this Conservation Easement.
6. Grantee's Enforcement Discretion Grantee may enforce the terms of this
Conservation Easement at its discretion, but if Grantor breaches any term of this Conservation
Easement and Grantee does not exercise its rights under this Conservation Easement, Grantee's
forbearance shall not be construed to be a waiver by Grantee of such term, or of any subsequent
breach of the same, or any other term of this Conservation Easement, or of any of the Grantee's
rights under this Conservation Easement. No delay or omission by Grantee in the exercise of any
right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a
waiver. Grantee shall not be obligated to enforce the provisions of this Conservation Easement.
Grantor acknowledges that failure to comply with the terms and conditions of this Conservation
Easement will result in irreparable harm to the Conservation Property and that the Grantee shall be
entitled to equitable relief to enforce said terms and conditions including, but not limited to,
injunctive relief. Should the Grantee have to take legal action to enforce said terms and conditions
against Grantor or its successors and assigns or any invitee, Grantee shall be entitled to
reimbursement of any and all reasonable attorney's fees and costs incurred by Grantee in said
enforcement action.
Conservation Easement
McGaba, LLC/City of Winter Springs
Page 3 of7
7. Grantee's Liability. Grantor will assume all liability for any injury or damage to
the person or property ofthird parties which may occur on the Conservation Property arising from
Grantor's ownership of the Conservation Property. Neither Grantors, nor any person or entity
claiming by or through Grantors, shall hold Grantee liable for any damage or injury to person or
personal property which may occur on the Conservation Property . Nothing herein shall be construed
as a waiver of the Grantee's right to sovereign immunity under Section 768.28, Florida Statutes or
any other provision of law.
8. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement
shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change
in the Conservation Property resulting from natural causes beyond Grantor's control, including,
without limitation, fire, flood, storm and earth movement, or from any necessary action taken by
Grantor under emergency conditions to prevent, abate or mitigate significant injury to the
Conservation Property or to persons resulting from such causes.
9. Recordation. Grantee shall record this Conservation Easement in timely fashion in
the Official Records of Seminole County, Florida, and shall re-record it at any time Grantee may
require to preserve its rights. Grantee shall pay all recording costs and taxes necessary to record this
Conversation Easement in the public records. Grantee will hold Grantor harmless from any
recording costs or taxes necessary to record this Conversation Easement in the public records.
10. Successors. The covenants, terms, conditions and restrictions of this Conservation
Easement shall be binding upon, and inure to the benefit of the parties hereto and their respective
personal representatives, heirs, successors and assigns and shall continue as a servitude running in
perpetuity with the Conservation Property.
11. Governin~ Law and Venue. The parties agree that this Agreement was
consummated in Seminole County, and the site ofthe Conservation Easement is in Seminole County,
Florida. This Agreement shall be governed by the laws ofthe State of Florida. Venue for all disputes
shall be properly placed in Seminole County, Florida.
12. Notice. All notices, demands, requests, consents, approvals or other communications
(collectively, "Notices") required or permitted to be given hereunder or which are given with respect
to this Agreement shall be effective only if in writing and delivered by personal service, or delivered
to an overnight courier service with guaranteed next day delivery or mailed by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
Conservation EasementsMcGaba, LLC/City of Winter Springs
Page 4 of7
TO GRANTOR:
Shirley Mackerly, President
McGaba, LLC
4986 Courtland Loop
Winter Springs, Florida 32708
Telephone: (407) 699-5848
TO GRANTEE:
City of Winter Springs
Attention: City Manager
1126 East State Road 434
Winter Springs, Florida 32708
Telephone: (407) 327-5957
or to such other address as such party shall have specified most recently by like Notice. The
aforesaid attorneys for the parties hereto are hereby respectively authorized to give any Notice
permitted under this Agreement. Any Notice given as provided herein shall be deemed received as
follows: if delivered by personal service, on the date so delivered; if delivered to an overnight courier
service, on the business day immediately following delivery to such service; and if mailed, on the
third business day after mailing.
13. Amendment. This Conservation Easement may be amended, altered, released or
revoked only by written agreement between the parties hereto or their heirs, assigns, or successors-
in-interest, which shall be filed in the public records in Seminole County, Florida..
TO HAVE AND TO HOLD unto Grantee forever. The covenants, terms, conditions,
restrictions and purpose imposed with this Conservation Easement shall be binding upon Grantor,
and shall continue as a servitude running in perpetuity with the Conservation Property
Grantor hereby covenants with said Grantee that Grantor is lawfully seized of said
Conservation Property in fee simple; that the Conservation Property is free and clear of all
encumbrances that are inconsistent with the terms ofthis Conservation Easement; that Grantor has
good right and lawful authority to convey this Conservation Easement; and that it hereby fully
warrants and defends the title to the Conservation Easement hereby conveyed against the lawful
claims of all persons whomsoever.
Conservation Easement
McGaba, LLC/City of Winter Springs
Page 5 of7
IN WITNESS WHEREOF, Grantor and Grantee have set their respective hands on the day
and year first above written.
WITNESSES:
GRANTOR
MCGAHA, LLC, a Florida limited liability
company
Ae, HAdLA~
Print Name: A/AAJ HAcLPJl'(;1
~~~
Print Name: CONCfi7'o ~/'YA!!C~
).d. l ~
By: :/1 fY\~,
.llfiIRLEY ~RL Y
Its: President
STATE OF f~R.It}A )
) ss:
COUNTY OF ~171 .J..XL{ )
On this l1 'TH dayof p,~.R.t L. ,2005, before me, the undersigned notary public,
eare Shirle Mackerly, President, McGaba, LLC, a Florida limited liability company,
onally known to me R produced the following identification
[SEAL]
~":'~ M. ROHnblatt
. ~..j My Commillion 00224840
"'or,..;! Expires September 26.2007
Ll11 tktf-
Notary Public, State of Florida
My Commission Expires: cr (:it ~~()'7
Serial Number: .[),f) 2-2 4-6 ~ 0 I
GRANTEE
Conservation Easement
McGaba, LLC/City of Winter Springs
Page 6 of7
ATTEST:
LORENZO-LUACES, City Clerk
Approved as to legal form and sufficiency for
the' f Winter Springs only:
ANTHONY A. GARGANESE, City Attorney
CITY OF WINTER SPRINGS, a municipal
corporation
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Conservation Easement
McGaba, LLC/City of Winter Springs
Page 70f7
,
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SKETCH OF DESCRIPTION
DESCRIPTION:
A PORTION OF LOTS 8 AND 9, BLOCK D, DR. MITCHELL'S SURVEY OF THE LEVY GRANT, ACCORDING TO THE PLAT
THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 5, OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA, BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
~~MpE~~E ~~R~~ ~~R~~~~6E%O~NN~LA~ BLgJK ES, C~tgf t~D O~O~EA~~~L~U~~I~OS~g~ g~ ~:~I~~~'E ACCgUO~~~~G TO ;-
FLORIDA; THENCE SOUTH 06'55'04" EAST ALONG THE WEST LINE OF SAID LOT E, A DISTANCE OF 1100.73 FEET TOi A
POINT ON THE BASELINE OF SURVEY OF STATE ROAD 434 ACCORDING TO THE F.D.O.T. RIGHT OF WAY MAP SECTION
NUMBER 77070-2516; THENCE NORTH 83'50'23" EAST ALONG SAID BASELINE OF SURVEY, A DISTANCE OF 390.41
FEET; THENCE DEPARTING SAID BASELINE OF SURVEY RUN SOUTH 01'01'30" EAST A DISTANCE OF 24.39 FEET;
THENCE NORTH 83'51'32" EAST A DISTANCE OF 168.42 FEET TO THE WEST LINE OF THE EAST 253.6 FEET OF SAID
LOT 9, BLOCK D; THENCE SOUTH 01'00'49" EAST ALONG SAID WEST LINE A DISTANCE OF 83.96 FEET TO THE
SOUTHERLY RIGHT OF WAY LINE OF SAID STATE ROAD 434; THENCE CONTINUE SOUTH 01'00'49" EAST, 395.89 FEET
TO THE POINT OF BEGINNING; THENCE SOUTH 49'25'07" EAST, 53.96 FEET; THENCE SOUTH 52'29'51" EAST, 26.21
FEET TO A POINT ON THE ARC OF A TANGENT CURVE CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 15.00 FEET
AND A CHORD WHICH BEARS SOUTH 56'07'42" EAST; THENCE RUN SOUTHEAST ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 01'15'43" FOR A DISTANCE OF 1.90 FEET; THENCE SOUTH 59'45'33" EAST, 34.53
FEET TO A POINT ON THE ARC OF A TANGENT CURVE CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 15.00 FEET;
THENCE RUN SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 08'44'40" FOR A
DISTANCE OF 2.29 FEET; THENCE SOUTH 68'30'13" EAST, 37.50 FEET TO A POINT ON THE ARC OF A TANGENT CURVE
CONCA VE NORTHEASTERLY, HAVING A RADIUS OF 15.00 FEET; THENCE RUN SOUTHEASTERLY ALONG THE ARC OF SAID
CURVE THROUGH A CENTRAL ANGLE OF 09'16'37" FOR A DISTANCE OF 2.43 FEET; THENCE SOUTH 71'46'50" EAST,
41.22 FEET; THENCE SOUTH 68'23'09" EAST, 64.96 FEET; THENCE SOUTH 66'08'38" EAST, 41.03 FEET; THENCE
SOUTH 53'39'08" EAST, 23.08 FEET; THENCE SOUTH 45'27'37" EAST, 22.05 FEET; THENCE SOUTH 25'02'14" EAST,
22.53 FEET TO A POINT ON THE ARC OF A TANGENT CURVE CONCAVE WESTERLY, HAVING A RADIUS OF 15.00 FEET;
THENCE RUN SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 23'45'34" FOR A
DISTANCE OF 6.22 FEET; THENCE SOUTH 06'55'21" EAST, 70.07 FEET TO A POINT ON THE ARC OF A TANGENT CURVE
CONCAVE WESTERLY, HAVING A RADIUS OF 15.00 FEET; THENCE RUN SOUTHERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 13'11'05" FOR A DISTANCE OF 3.45 FEET; THENCE SOUTH 06'15'44" WEST, 21.13
FEET TO A POINT ON THE ARC OF A TANGENT CURVE CONCAVE EASTERLY, HAVING A RADIUS OF 15.00 FEET; THENCE
RUN SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 29'38'54" FOR A DISTANCE OF
7.76 FEET; THENCE SOUTH 23'23'10" EAST, 4.98 FEET TO A POINT ON THE ARC OF A TANGENT CURVE CONCAVE
NORTHEASTERLY, HAVING A RADIUS OF 15.00 FEET; THENCE RUN SOUTHEASTERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 25'44'58" FOR A DISTANCE OF 6.74 FEET; THENCE SOUTH 49'08'08" EAST, 11.91
FEET TO A POINT ON THE ARC OF A TANGENT CURVE CONCAVE WESTERLY, HAVING A RADIUS OF 15.00 FEET; THENCE
RUN SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 98'48'35" FOR A DISTANCE OF
25.87 FEET TO A POINT OF REVERSE CURVATURE OF A CURVE CONCAVE EASTERLY, HAVING A RADIUS OF 15.00 FEET;
THENCE RUN SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 93'37'06" FOR A
DISTANCE OF 24.51 FEET; THENCE SOUTH 43'56'38" EAST, 23.22 FEET TO A POINT ON THE ARC OF A TANGENT
CURVE CONCA VE WESTERLY, HAVING A RADIUS OF 15.00 FEET; THENCE RUN SOUTHERLY ALONG THE ARC OF SAID
CURVE THROUGH A CENTRAL ANGLE OF 40'20'47" FOR A DISTANCE OF 10.56 FEET; THENCE SOUTH 03'35'51" EAST,
9.96 FEET; THENCE SOUTH 83'52'42" WEST, 308.22 FEET; THENCE NORTH 01'00'49" WEST, 426.45 FEET TO THE
POINT OF BEGINNING.
SAID LANDS L YlNG IN SEMINOLE COUNTY, FLORIDA, CONTAINING 2.158 ACRES MORE OR LESS.
A L D II. INC.
5650 LAKEHURST DRIVE STE 150-33
ORLANDO, FlDRIDA 32619 (407)352-7161
SHEET 1 OF 3
PROJECT NUMBER: 01087
DRAWING No: 01087SK04
DATE: 06/02/05
REVISED:
,
.
SKETCH OF DESCRIPTION
LINE TABLE:
SURVEYOR'S NOTES:
LINE BEARING LENGTH THIS IS NOT A BOUNDARY SURVEY.
L15 S 49'25'07" E 53.96' 1.
2. THE BEARINGS SHOWN HEREON ARE BASED ON THE
L16 S 52'29'51" E 26.21' SOUTHERLY R/W LINE OF SR 434 AS SHOWN ON SR
L17 S 59'45'33" E 34.53' R/W MAP SECTION 77070-2516, PAGE 3 OF 13 BEING
L18 S 68'30'13" E 37.50' N83'53'25"E.
L19 S 77'46'50" E 41.22' 3. SUBJECT TO EASEMENTS AND/OR RIGHTS OF WAY
L20 S 68'23'09" E 64.96' OF RECORD.
L21 S 66'08'38" E 41.03'
L22 S 53'39'08" E 23.08'
L23 S 45'27'37" E 22.05' LEG END:
L24 S 25'02'14" E 22.53' R/W = RIGHT OF WAY
L25 S 06'55'21" E 70.77' P.O.C. = POINT OF COMMENCEMENT
L26 S 06'15'44" W 21.13' P.O.B. = POINT OF BEGINNING
L27 S 23'23'10" E 4.98' PB = PLAT BOOK
L28 S 49'08'08" E 11.91 ' PG = PAGE
ORB = OFFICIAL RECORDS BOOK
L29 S 43'56'38" E 23.22' NO. = NUMBER
L30 S 03'35'51" E 9.96' ESMT. = EASEMENT
SR = STATE ROAD
CURVE TABLE:
CURVE DELTA RADIUS LENGTH CHORD BEARING CHORD
C1 7'15' 43" 15.00' 1.90' S 56'07'42" E 1.90'
C2 8'44' 40" 15.00' 2.29' S 64'07'53" E 2.29'
C3 9'16'37" 15.00' 2.43' S 73'08'32" E 2.43'
C4 23'45'34" 15.00' 6.22' N 18'48'08" W 6.18'
C5 13'11'05" 15.00' 3.45' N 00'19'49" W 3.44'
C6 29'38'54" 15.00' 7.76' S 08'33'43" E 7.68'
C7 25'44'58" 15.00' 6.74' S 36'15'39" E 6.68'
C8 98'48'35" 15.00' 25.87' N 00'16'09" E 22.78'
C9 93'37'06" 15.00' 24.51' S 02'51'54" W 21.87'
C10 40'20' 47" 15.00' 10.56' N 23'46'15" W 10.35'
PROJECT NUMBER: 01087
A L D II, INC. DRAWING No: 01087SK04
5850 LAKEHURST DRIVE STE 150-33 DATE: 06/02/05
ORLANDO, FLORIDA 32819 (407)352-7181
SHEET 2 OF 3 REVISED:
~.
.. . .
SkETCH OF DESCRIPTION
P.O.C.
NW CORNER, LOT E
CHASE AND COtoAPANY'S
SUBDIVISION OF WAGNER
PB 6, PG 64
S 06'55'04" E (W. line lot E)
1100.73'
N 83'50'23" E (Baseline of Survey)
ti390.41' (SR 434) _ _ - _-
S 07'01 '30" E _ _ - - - -
~24.39' _----- & NO 419
- - - - 434'
N83'5"32"~ -:-r - - - - - ~ SiAl,E,.rK?~Dp~OciR.! ~08:O ~~1~~p
L + - -2' tn\ R,.. WN ON S"'''~ 3 Of 13
168.4 010 AS SH~ 77070-2516, PG ~
trol\ SEC'l1 --.
. 0 - I III
\0\ '5"E -- "'4"'4
0'1.0. 434 N 83'532 - - - - - \ i 111-4
to.\ LS'L Y R~ ~ _ - -s@iFre \!:'SlS ~~ r;, ~ ~
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V1-.J \ 6'-- \
\00 _25:3. \
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~ ,;; \-A WEST UNE OF \
.\O.~ THE EAST 253.6' \ \
~ \ LOT 9, BLOCK .0. \ \
OR. t.lITCHELL'S SURVEY OF THE LEVY GRANT LOT 8 BLOCK .0. \
PLAT BOOK " PAGE 5 \ OR. MITCHELL'S SURVEY OF THE LEVY GRANT \
\ PLAT BOOK " PAGE 5
\ \
\ \
\ \
\ \
\
L21 \ \
L22 \
\ ~3 \
\ \
\ \
\ \
\ L25 \
\ \
\ C5 \
\ \
\ \
\ \
\ \
\ L29 ~
\ C10 _-
~-----
P.O.B.
L16
Cl
L17
C2
L18 C3
L19
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PROPOSED
CONSERVA TION
EASEMENT
LOT 9, BLOCK .0.
OR. MITCHELL'S SURVEY
OF THE LEVY GRANT
PLAT BOOK I, PAGE 5
NOT VALID W11'HOUT THE SIGNATURE
AND THE O'~INAL RAISED SEAL
OF A FLOflJ~A L~CE~SEQ.., '\
SURVEYOR AND ltlAP.,RiR-.....v',
GARY A. BURDEN:~' ",,',\ .>..:,,"
ALD II, Inc; r}.,.. , "'l.
LIe ED BU?I~ s:.J* 91'": .
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.',' ",~/:',,--
PROFESSI AL [.' YEYOR - A L D II, INC.
STATE OF FLORIDA, NO. ~591 5850 LAKEHURST DRIVE STE 150-33
SHEET 3 OF 3 ORLANDO, FLORIDA 32819 (407)352-7181
5 83'52' 42" W
308.22'
PROJECT NUMBER: 01087
DRAWING No: 01087SK04
DATE: 06/02/05
REVISED: