2018-O-33 - Edgewater Marina PUD 7/10/2019 9:54:49 AM Instrument=19135652#1 Book:7718 Page:3535
ORDINANCE NO.2018-0-33
AN ORDINANCE GRANTING A CHANGE IN ZONING
CLASSIFICATION FROM B4 (TOURIST COMMERCIAL)
TO BPUD (BUSINESS PLANNED UNIT DEVELOPMENT)
FOR 1.261 ACRES OF CERTAIN REAL PROPERTY
LOCATED AT 2001 SOUTH RIVERSIDE DRIVE,
EDGEWATER, FLORIDA; AMENDING THE OFFICIAL
ZONING MAP OF THE CITY OF EDGEWATER; -
PROVIDING FOR CONFLICTING PROVISIONS,
SEVERABILITY AND APPLICABILITY; PROVIDING FOR
AN EFFECTIVE DATE,RECORDING AND ADOPTION.
WHEREAS,the City Council of the City of Edgewater, Florida,has made the following
findings of fact and determinations:
1. Richard Kowalski is the applicant on behalf of ASKI Development, LLC, owner
of property located at 2001 South Riverside Drive within Volusia County, Florida. Subject
property contains approximately 1.261 acres.
2. The applicant has submitted an application for a change in zoning classification
from B-4 (Tourist Commercial) to BPUD (Business Planned Unit Development) for the
property described herein.
3. On May 8, 2019, the Local Planning Agency (Planning and Zoning Board)
considered the application for change in zoning classification.
4. The proposed change in zoning classification is consistent with all relevant goals,
objectives and policies of the Edgewater Comprehensive Plan.
5. The proposed change in zoning classification is not contrary to the established
land use pattern and is compatible with existing and proposed uses in the adjacent area.
6. The proposed change in zoning classification will not adversely impact public
facilities and meets the Concurrency Management System requirements in Article HI of the
Land Development Code.
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7. The proposed change in zoning classification will not have an adverse effect on
the natural environment
8. The proposed change will not have a negative effect on the character of the
surrounding area.
NOW, THEREFORE, BE IT ENACTED by the People of the City of Edgewater,
Florida:
PART A. CHANGE IN ZONING CLASSIFICATION OF CERTAIN REAL
PROPERTY WITHIN THE CITY OF EDGEWATER,FLORIDA.
The zoning classification for the property described in Exhibit "A" is hereby changed from B-4
(Tourist Commercial) to BPUD (Business Planned Unit Development), pursuant to the associated
Planned Unit Development(PUD)Agreement(attached and hereto incorporated as Exhibit"B").
PART B. AMENDMENT OF THE OFFICIAL ZONING -IAP OF THE CITY OF
EDGEWATER,FLORIDA.
The GIS Technician is hereby authorized and directed to amend the Official Zoning Map
of the City of Edgewater, Florida, to reflect the change in zoning classification for the above
described property.
PART C. CONFLICTING PROVISIONS.
All conflicting ordinances and resolutions, or parts thereof in conflict with this ordinance,
are hereby superseded by this ordinance to the extent of such conflict.
PART D. SEVERABILITY AND APPLICABILITY.
If any portion of this ordinance is for any reason held or declared to be unconstitutional,
inoperative, or void, such holding shall not affect the remaining portions of this ordinance. If
this ordinance or any provisions thereof shall be held to be inapplicable to any person, property,
or circumstances, such holding shall not affect its applicability to any other person, property, or
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circumstance.
PART E. RECORDING.
Upon approval and execution, this document shall be delivered to the Clerk of Court for
recording into the public records of Volusia County, Florida.
PART F. EFFECTIVE DATE.
This Ordinance shall take place upon adoption.
PART G. ADOPTION.
Councilwoman Yaney made a Motion to table this Ordinance until the next meeting, the
Motion DIED for lack of second.
After Motion to approve by Councilwoman Power, with Second by Councilwoman
O'Keefe,the vote on the first reading of this ordinance held on June 3,2019,was as follows:
AYE NAY
Mayor Mike Thomas X
Councilwoman Christine Power X
Councilwoman Kimberley Yaney X
Councilwoman Megan O'Keefe X
Councilman Gary T. Conroy X
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After Motion to approve by �_I La� with
Second by 're � 0 the vote on the second
reading/public hearing of this ordinance held on July 1,2019,was as follows:
AYE NAY
Mayor Mike Thomas �r
Councilwoman Christine Power
Councilwoman Kimberley Yaney \�
Councilwoman Megan O'Keefe
Councilman Gary T. Conroy
PASSED AND DULY ADOPTED this 1"day of July, 2019.
ATTEST: CITY COUNCIL OF THE
We
Robin MatusickCity Clerk/Paralegal
For the use and reliance only by the City of Approved by the City Council of the City of
Edgewater, Florida. Approved as to form and Edgewater at a meeting held on this 1" day of
legality by: Aaron R Wolfe, Esquire July,2019 under Agenda Item No. 8 G� .
City Attorney
Doran, Sims, Wolfe&Ciocchetti
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EXHIBIT"A"
LEGAL DESCRIPTION
Lot 1, Block 4, Riveredge Acres, according to the map or plat thereof,as recorded in Map Book
9, Page 260,of the Public Records of Volusia County, Florida.
Containing 1.26±acres more or less and being in Volusia County,Florida
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BUSINESS PLANNED UNIT DEVELOPMENT(BPUD)
AGREEMENT
EDGEWATER MARINA
THIS AGREEMENT is made and entered into this lrl�' - p���� nnnn day of ��l� 2019
by and between, the CITY OF EDGEWATER, FLORIDA, a municipal corporation, whose mailing
address is P.O. Box 100, 104 N. Riverside Drive, Edgewater, Florida 32132, (hereinafter referred to as
"City") and ASKI DEVELOPMENT, LLC., a Florida Corporation, with Richard Kowalski as the
Manager whose address is 524 Greeley Street, Orlando, FL 32804, (hereinafter referred to as
"Developer'l. The purpose of this Agreement is to define the terms and conditions granting the
development approval of the subject property.
NOW, THEREFORE, in consideration of the agreements, premises, and covenants set forth
herein and other good and valuable consideration,the parties agree as follows:
1. LEGAL DESCRIPTION AND OWNER
The land subject to this Agreement is approximately 1.26±acres located at 2001 South Riverside
Drive, Edgewater, Volusia County, Florida The legal description of the property is attached hereto as
Exhibit "A- - Legal Description. The record owner of the subject property is Aski Development,
LLC and the City of Edgewater.
2. DURATION OF AGREEMENT
The duration of this Agreement shall be thirty(30)years and run with the land. Development must
be consistent with the Master Plan dated April 18,2018,revised March 20,2019 hereto as Exhibit"B"-
Conceptual Plan. Developer must receive site plan approval from the City prior to commencing
construction. Developer's failure to initiate construction before February 1,2020,may result in the city's
termination of the Agreement. Developer may request an extension of the Agreement for an additional
12-months for extraordinary circumstances as determined by the City.The Agreement may be extended
by mutual consent of the governing body and the Developer,subject to a public hearing.Commencement
of construction means to begin performing on-site modification, fabrication, erection or installation of a
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treatment facility or a conveyance system for the discharge of wastes and on-site modification,
fabrication,erection or installation of a treatment facility or a transmission system for the conveyance of
potable water. Land clearing and site preparation activities related to this construction are not included
herein; however, before undertaking land clearing activities, other permits for stormwater discharges
from the site may be required. Final approval shall include, but not be limited to utilities, stormwater,
traffic, fire rescue, hydrants, law enforcement, environmental, solid waste containment, and planning
elements.
3. DEVELOPMENT USES PERMITTED
Development of this Property is subject to the terms of this Agreement and in accordance with the
City of Edgewater's current Land Development Code(LDC). Final project approval may be subject to
change based upon final environmental, permitting, and planning considerations and/or Federal and
State regulatory agencies permit requirements.
a. RestauranVfackle Shoo/Rental Office
Minimum Yard Size and Setbacks Minimum Landscape Buffer
Front(Riverside Dr.): 404eet Front(Riverside Dr) 10-feet
Rear: 10-feet Side(North) 25-feet in Boston to
include a minimum 4.
Side(South): 10-feet foot opaque fence
Boston Road R/W(North) 0-feet Side(South) 10-feet
Maximum Building 30%
Coverage
Maximum Impervious 70%
Coverage
Maximum Height 30-feet
b. Parkins
1. Fifty-Six (56) parking spaces will be permitted with a minimum sire of 20-feet by 9-
feet A minimum of three (3) handicap parking spaces meeting ADA requirements will be required.
The location and number of parking spaces in a row shall be permitted per Exhibit"B"Master Plan.
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2. Four(4)parking spaces will be permitted with a minimum sin of 20-feet by 10-
feet at the NE comer of Boston Road right-of-way for the exclusive use of the residents to the
North East as shown an Exhibit B Master Plan.
c. Use of Boston Road
Boston Road right-of-way to be improved and paved, as shown on Exhibit "B"Master Plan, by
Developer.The City and Developer shall enter into a Non-Exclusive Right-of Way Agreement for access,
drainage, parking, and utilities, which will provide perpetual access and parking to the residences to the
North,prior to the issuance of a Development Order.
d. Stormwater Management
The retention pond(s) and perforated pipe with rock exililtration shall meet the requirements for
the Florida Department of Environmental Protection and the City of Edgewater LDC. The Developer
shall meet all requirements pertaining to flood plain development standards as defined in the City LIC.
e. Signage
Any signage shall meet the current LDC.
E Trees
The Developer shall meet the minimum landscaping requirements and tree protection standards
as set forth in the current LDC.
g. Entrance to Proiem
Two (2) entrances, per master plan, Exhibit B, shall be permitted for accessing the
development from Riverside Drive.
h. Construction of Marina
It is anticipated that the marina will be com acted in the same or similar footprint as the
marina that previously existed on the site and permits and/or approvals associated with the marina will
need to be obtained prim to construction of the marina.
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4. FUTURE LAND USE AND ZONING DESIGNATION
The Future Land Use designation for Aski Development, LLC is Commercial. The zoning
designation is BPUD (Business Planned Unit Development) as defined in the City Land Development
Code. The City of Edgewater's permitted uses for BPUD (Business Planned Unit Development) are
applicable to the development of the property and consistent with the adopted Comprehensive
Plan/Future Land Use Map.
5. PUBLIC FAC1LEfIES
a. Developer agrees to connect to and utilize the City's water distribution system. Developer
agrees to connect to the City's potable water system at the nearest point of connection. All water main
distribution system improvements will be installed by the Developer and all water main distribution
system improvements within public Tight of ways shall be conveyed to the City by Bill of Sale in a
form acceptable to the City and dedicated to the City prior to or at the time of Certificate of
Occupancy.
b. Developer agrees to connect to and utilize the City's wastewater transmission and collection
system. All wastewater collection and
Y transmission system improvements will be installed by the
Developer and all wastewater collection and transmission system improvements within public right of
ways shall be conveyed to the City by Bill of Sale in a form acceptable to the City and dedicated to the
City prior to or at the time of Certificate of Occupancy.
c. The City has determined that reclaimed water may be available in the foreseeable future.
Therefore, the Developer shall convert and connect all irrigation system piping to reclaimed water
within ors -hundred-eighty (180) days of written notification by the City to the Developer of the
availability and cos% but Developer shall only be required to convert and connect such systems if the
connection point is immediately adjoining the Developer's property.
it. All utility services will be underground.
e. Impact fees will be paid in accordance with the following schedule:
i. Water, Sewer, Police, Fire,Parks and Recreation, Road and Transportation impact
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fees and Utility Connection Fees, to be paid by applicant at the time the Building
Permit is issued by the City, thereby reserving requisite water and sewer capacity.
A minimum water and sewer charge shall be applied to each E.R.U. reserved and
not connected within one (1)year. Capacity reservation shall not be guaranteed if
not utilized within thirty-six(36)months of the date fees paid.
ii. Volusia County Road (if deemed applicable by Volusia County)—Paid to County
by applicant with proof of payment provided to the City prior to a Building
Certificate of Occupancy.
The amount of all required impact fees shall be at the prevailing rate authorized at the time of
payment of impact fees.
f All infrastructure facilities and improvements shall be constructed in compliance with
applicable federal,state,and local standards.
g. A concurrency review shall be conducted to ensure that all required public facilities are
available concurrent with the impacts of the development.
It. Developer, at the time of development shall provide all public facilities to support this project
including the following:
I. Water Distribution System including fire hydrants.
2. Sewage Collection and Transmission System.
3. Stormwater collection/treatment system,including outfall system.
4. Piping for future reclaimed service.
5. All required pavement marking and signage (stop signs, road signs, etc.) within the
Development.All permanent markings and signage shall comply with Florida Department
of Transportation (FDOT) standards. Enhanced special signage may be used if it meets
FOOT standards and approved by the City.
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6. CONSISTENCY OF DEVELOPMENT
The City agrees to issue the required permits for the development in the manner defined in the
Agreement after having determined it is not contrary to the City of Edgewater Comprehensive Plan and
Land Development Code and is compliant with all concurrency requirements set forth in said
documents.
7. DEDICATION OF EASEMENTS
The developer to provide access,drainage,and utility easements as required by the City.
S. PERMITS REOUIRED
The Developer will obtain required development permits or letters of exemption. Permits may
include but not limited to the following:
1. Department of Environmental Protection, St. Johns River Water Management District,Army
Corps of Engineers and Florida Fish and Wildlife Conservation Commission.
2. City of Edgewater — Site Plan, all applicable clearing, removal, construction and building
permits.
9. DEVELOPMENT REQUIREMENTS
Failure of this Agreement to address a particular permit, condition, term or restriction shall not
relieve the Developer of the necessity of complying with those permitting requirements, conditions,
terms or restrictions, and any matter or thing required to be done under the existing ordinances of the
City. Existing ordinances shall not be otherwise amended, modified, or waived unless such
modification,amendment,or waiver is expressly provided for in this Agreement with specific reference
to the ordinance provisions so waived.
Developer agrees to reimburse the City of Edgewater for direct costs associated with the legal
review, engineering review, construction inspections related to Aski Development, LLC development
approval and the construction of required infrastructure improvements,including recording fees.
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10. HEALTH SAFETY AND WELFARE REQUIREMENTS
The Developer shall comply with such conditions, terns, restrictions, or other requirements
determined to be necessary by the City for the public health,safety,or welfare of its citizens.
11. APPEAL
If the Developer is aggrieved by any City official interpreting the terms of this Agreement, the
Developer shall file a written appeal to the City Manager within fifteen(15)days of the adverse decision
being communicated to such person. After receiving the written appeal, the appeal will be reviewed by
the City Manager and City Attorney and render a decision of the appeal within 30-days of receipt of the
written notice or appeal. If the City Manager cannot resolve the dispute,the issue shall be scheduled for
the City Council agenda. The action of the City Council is the final authority concerning this
Agreement.
12. PERFORMANCE GUARANTEES
During the tern of this Agreement, regardless of the ownership of the Property, the Property shall
he developed incompliance with the terns of this Agreement and applicable regulations of the City not
inconsistent with, or contrary to, this Agreement. The property owner will be responsible for
maintaining the property in accordance with the approved BPUD Agreement and site plan. Any
changes to the site design shall require approval by the TRC and/or City Council.
13. BINDING EFFECT
The provisions of this Agreement, including any and all supplementing amendments, and all final
site plans, shall bind and inure to the benefit of the Developer or its successors in interest and assigns
and any person, fvm, corporation, or entity who may become the successor in interest to the land
subject to this Agreement or any portion thereof and shall run with the land and shall be administered in
a manner consistent with the laws of the State of Florida.
14. RECORDING
Upon execution by all parties, the City shall record the Agreement with the Clerk of the Court in
Volusia County. The cost of recording shall be paid by the Developer.
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15. PERIODIC REVIEW
The City shall review the development subject to this Agreement every 12 months,commencing 12
months after the date of this Agreement to determine if there has been good faith compliance with the
terms of this Agreement. If the City finds on the basis of competent substantial evidence that there has
been a failure to materially comply with the terns of this Agreement, the Agreement may be revoked
or modified by the City. Any such revocation or modification shall only occur after the City has
notified the Developer in writing of Developer's failure to materially comply with the terns of this
Agreement and Developer fails to cure such breach after receiving written notice and a reasonable
opportunity to core such breach from the City.
16. APPLICABLE LAW
This Agreement and the provisions contained herein shall be construed, controlled, and interpreted
according to the laws of the State of Florida.
17. TIME OF THE ESSENCE
Time is hereby declared of the essence to the lawful performance of the duties and obligations
contained in the Agreement.
18. AGREEMENTIAMENDMENT
This Agreement constitutes the entire agreement between the parties, and supersedes all previous
discussions,understandings, and agreements,with respect to the subject matter hereof. Amendments to
and waivers of the provisions of this Agreement shall be made by the parties only in writing by formal
amendment. Substantial changes, as determined by the City Manager, will require City Council
approval.
19. FURTHER DOCUMENTATION
The parties agree that at any time following a request therefore by the other party, each shall
execute and deliver to the other parry such further documents and instruments, in form and substance
reasonably necessary to confirm and/or effectuate the obligations of either party hereunder.
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20. SPECIFIC PERFORMANCE
Both the City and the Developer shall have the right to enforce the terms and conditions of this
Agreement by an action for specific performance.
21. ATTORNEYS'FEES
In the event that either party finds it necessary to commence an action against the other party to
enforce any provision of this Agreement or because of a breach by the other party of any terms hereof,
the prevailing party shall be entitled to recover from the other party its reasonable attomey's fees, legal
assistant's fees and costs incurred in connection therewith, at both trial and appellate levels, including
bankruptcy proceedings,without regard to whether any legal proceedings are commenced or whether or
not such action is prosecuted to judgment.
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts,each of which shall be deemed to
be an original but all of which together shall constitute one and the same instrument.
23. CAPTIONS
Captions of the sections of this Agreement are for convenience and reference only, and the words
contained therein shall in no way be held to explain,amplify or aid in the interpretation,construction,or
meaning of the provisions of this Agreement.
24. SEVERABILITY
If any sentence, phrase, paragraph, provision, or porton of this Agreement is for any reason held
invalid or uncommutional by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct, and independent provision and such holding shall not affect the validity of the
remaining portion hereof.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be made and entered
into the date and year first written above.
ATTEST: CITY COUNC OF THE
FED W ER,F :O :FDA
Robin L.Matusick, Mike' It -
City Clerk/Paralegal ' ,Mayor
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Witnessed By: DEVELOPER
ASK[DEVELOPMENT,LLC
�
^ A Florida Corporation '/
J I JAnw a, 10 11 By:
Richard Kowalski, Manager
STATE OF FLORIDA
COUNTY OF V LC1�,
The foregoing instrument was acknowledged before me this �d of'1(L 11A , 2019, by
I- 11�,�IQA'/'1 /f71A 1n Skl who is personally known to me or has
produced identification and who did(did not)take an oath.
SIN...8R0brf�i'' Stamp/Seal
Notary Public � :. �' ''•
ecslsax
i z,•;�,3e'Mstl&,°d.;dry
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EXHIBIT"A"
LEGAL DESCRIPTION
Lot 1,Block 4,Riveredge Acres,according to the map Or plat thereof,as recorded in Map Book 9, Page
260,of the Public Records of Volute County,Florida.
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EXHIBIT"B"
MASTER PLAN
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EDGEWATER MARINA MASTER PLAN
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EXHIBIT 'B•
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NON-EXCLUSIVE RIGHT OF WAY AGREEMENT
1- This NON-EXCLUSIVE RIGHT OF WAY AGREEMENT ("Agreement") is made this
day of 2019, by and between the CITY OF EDGEWATER, FLORIDA, a
municipal corpora[ n whose address is 104 North Riverside Drive, Edgewater, Florida 32132
("City") and ASKI DEVELOPMENT, LLC, a Florida limited liability company, with Richard
Kowalski as Manager, whose address is 524 Greeley Street, Orlando, Florida 32804
("Developer").
RECITALS
WHEREAS, Developer is the owner/lessee of approximately 1.261,acres of property(the
"Property') located at 2001 South Riverside Drive,Edgewater,Volusia County,Florida;and
WHEREAS, Developer recently received approval of a BPUD rezoning of the Property
by the City to permit the construction of a 4,432 square foot restaurant (under root), a 1,496
square retail area, to include a bait acrd tackle shop, as well as a rental office and an owner's
office (the"Project"); and
WHEREAS, as part of the Project, certain improvements to the public right of way
controlled by the City and referred to as Boston Road will be completed by the Developer for the
benefit of the public(ice Exhibit"A,"attached hereto and incorporated herein by reference, for a
description of the Boston Road right of way area which shall be subject to the use described
herein);and
WHEREAS, the City supports the Project and is willing to permit the uses outlined
herein within the Boston Road right of way;and
WHEREAS Developer's use of the Boston Road right of way is in the public interest and
will benefit the residents of the City and the general public;and
WHEREAS, Developer's use of the Boston Road right of way is in the public interest and
will benefit the public as Developer will pave the unpaved right of way,east of Riverside Drive,
which has not been previously improved; and
WHEREAS,Developer's use of the Boston Road right of way is in the public interest and
will benefit the public as Developer will construct a portion of the proposed fifty-six (56)
parking spaces in the right of way for use by the public; and
WHEREAS, Developer's use of the Boston Road right of way is in the public's interest
and will benefit the public as Developer will construct stormwater improvements, including
retention ponds, in the right of way to include addressing off-site stomtwater deficiencies for
Boston Road; and
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WHEREAS,Developer's use of the Boston Road right of way is in the public interest and
will benefit the public as Developer will maintain all of the improvements it makes to the right of
way and relieve the City of that responsibility; and
WHEREAS,the Developer's use will not impair the use and safety of the right of way or
interfere with the free flow of traffic on said right of way.
NOW THEREFORE, in consideration of the promises and undertakings herein made and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Incorooration of Recitals. The foregoing Recitals are true and correct and are hereby
incorporated by the parties of this Agreement as if fully set forth herein.
2. Obligations and Duties of Developer. Developer intends to construct the Project, which
will provide numerous benefits to the City, including but not limited to increasing the non-
residential tax base. In connection with its development of the Project, Developer will
incorporate the elements outlined below which will benefit the City, its residents and the general
public.
a. Boston Road Improvements. Developer intends to develop the property which is
directly east of the termination of Boston Road. As part of the Project, certain improvements,
more specifically described in the Edgewater Marina Master Plan, attached hereto as Exhibit
'B;' will be installed within the right of way for Boston Road (the "Boston Road
Improvements"). The Boston Road Improvements will be open and accessible to the general
public. Emergency vehicles will also be permitted in substantially the manner currently
permitted.
b. Parking. Developer will construct a total of sixty (60) parking spaces as part of
the Project, twenty-one (21) of the parking spaces will be located in the Boston Road right of
way. Seventeen (17) of the parking spaces located in the Boston Road right of way will be
constructed with a minimum size of 20-feet by 9-feet. A minimum of three(3) handicap parking
spaces meeting ADA requirements will be constructed on the Developer's property, which the
Developer agrees to provide for public use. The location and number of parking spaces in a row
shall conform to Exhibit"B" Master Plan. Four(4) of the 21 parking spaces to be constructed in
the Boston Road right of way, will be constructed with a minimum size of 20-feet by l0-feet at
the northeast corner of the Boston Road right-of-way for the exclusive use of the residents to the
northeast as shown on Exhibit"B"Master Plan.
c. Stormwater Management. Developer will construct the retention ponds in the
Boston Road right of way as shown on Exhibit "B" Master Plan. The retention ponds and
perforated pipe with rock exfiltration shall meet the requirements for the Florida Department of
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Environmental Protection and the City of Edgewater LDC. Developer shall meet all
requirements pertaining to flood plain development standards as defined in the City LDC.
d. Change to Improvements. Any change in the design or construction of the Boston
Road Improvements shall require prior written approval from the City. Approval from the City
shall not be unreasonably withheld.
e. Maintenance. Developer, at its sole cost and expense, shall maintain the Boston
Road Improvements so as to assure that the structures and the area within the right of way
boundaries will be kept in good condition, as to operation, safety and appearance, except for the
rolling gates to be installed within the Boston Road right of way and adjacent to the property
owned by the residents to the northeast where the four (4) dedicated parking spaces are required
to be constructed, which gates are being installed at the Developer's expense, at the request of
property owner to the northeast. These gates, may be, but are not required to be maintained or
repaired by the Developer. Such maintenance will be accomplished in a manner so as to cause no
unreasonable interference with the right of way use. In the event that Developer fails to so
maintain the Boston Road Improvements, with the exception to the rolling gates as described
herein and as denoted on Exhibit B referenced above, the City, through its duly authorized
representatives, employees, and contractors, shall provide written notice of the deficiencies in
reasonable detail (the "Maintenance Notice"). Developer shall have fourteen (14) business days
from receipt of the Maintenance Notice to commence actions to etre the deficiencies set forth in
the Maintenance Notice, If Developer does not cure or commence to cure the deficiencies set
forth in the Maintenance Notice within fourteen (14) business days from receipt of same, the
City may enter the Boston Road right of way to perform such work,and the cost thereof shall be
chargeable to Developer and shall be immediately due and payable to the City upon receipt by
Developer of an invoice from the City.
f Indemnification. To the extent provided by law, Developer shall indemnify,
defend, and hold harmless the City and all of its officers, agents, and employees from any claim,
loss, damage, cost,charge, or expense arising out of any act, error, omission, or negligent act by
Developer, its officers, agents, or employees, during the performance of the Agreement, except
that neither Developer, its agents, or its employees will be liable under this paragraph for any
claim, loss, damage, cost, charge,or expense arising out of any act, error,omission, or negligent
act by the City or any of its officers, agents, or employees during the performance of the
Agreement.
When the City receives a notice of claim for damages that may have been caused by
Developer in the performance of services required under this Agreement, the City will
immediately forward the claim to Developer.Developer and the City will evaluate the claim and
report their findings to each other within fourteen (14) business days and will jointly discuss
options in defending the claim. After reviewing the claim, the City will determine whether to
require participation of Developer in the defense of the claim or to require that Developer defend
the City in such claim as described in this section. The City's failure to promptly notify
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Developer of a claim shall not act as a waiver of any right herein to require the participation in or
defense of the claim by Developer. The City and Developer will each pay its own expenses for
the evaluation, settlement negotiations, and trial, if any.
g. Insurance. Developer shall, provide and keep in force the following schedule of
insurance coverage with an insurance company licensed to do business in Florida. The City shall
be named as an additional insured under all of the Commercial General Liability coverage
identified below:
(i)During construction of the Project—
Schedule Limits
Workers'Compensation Florida Statutory Coverage
Commercial General Liability $2,000,000.00 General Aggregate
Premises-Operations $2,000,000.00 Products/CompOps
Aggregate
$1,000,000.00 Personal/Advertising Injury
$1,000,000.00 Per Occurrence
Independent Contractors $50,000.00 Damage to Rented Premises
$5,000.00 Medical
Auto Liability $1,000,000.00 CSL for all autos-owned,
hired or no-owned(Symbol I coverage)
Umbrella Liability $5,000,000.00 Per Occurrence
Builder's Risk Estimated Value of the Project
(ii)After completion of the Project—
Schedule Limits
Commercial General Liability $2,000,000.00 General Aggregate
Premises-Operations $2,000,000.00 Products/CompOps
Aggregate
$1,000,000.00 PersomilfAcivertising Injury
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$1,000,000.00 Per Occurrence
Umbrella Liability $3,000,000.00 Per Occurrence
Property Poli id
Value of New Construction
3. Obligations and Duties of the City. The City has reviewed, accepted and approved the
Edgewater Marina Master Plan, Exhibit `B," for all improvements over, under, above, through
and upon the Boston Road right of way. The City hereby:
a. Boston Road Right of Way Use Permit. Grants a use permit to Developer for the
installation and use of the Boston Road right of way improvements set forth in the Edgewater
Marina Master Plan,Exhibit"B."
b. Project License. Grants Developer, its parents, subsidiaries, successors, assigns,
future owners and/or occupants of the Property, guests, invitees, agents, consultants, employees,
independent contractors, and any other person or persons that may reasonably need access to the
Property, a non-exclusive perpetual license to enter upon and utilize the Boston Road right of
way described in Exhibit"A"for:
(1) Ingress and egress;
(ii) Construction, operation and maintenance of existing and future
improvements associated with the Project set forth in the Edgewater Marina Master Plan,Exhibit
"B," including but not limited to, parking spaces, utilities, stormwater improvements, and
stormwater retention; and
(iii) Access.
Developer shall be responsible for the design, permitting and construction of all
improvements over, under, through and upon the Boston Road right of way, and ongoing
maintenance and repairs to the improvements of the Boston Road right of way, with the
exception of the gates to be installed as described in Paragraph 2.(b) above. Developer shall
keep said Boston Road right of way in good condition and repair. The license granted hereby
shall run with the land and shall inure to the benefit of, be binding upon, and be enforceable by
the City and Developer and their representatives,parents, subsidiaries, successors and assigns, as
applicable.
4. Termination of Agreement. It is understood and agreed to by Developer and the City that
the authorization provided for herein for the construction of the Boston Road Improvements is
intended to be perpetual in nature. It is understood and agreed to by Developer and the City that
the City reserves the right to terminate this Agreement only in the event that Developer violates
any of the conditions of this Agreement, except for issues associated with the maintenance of the
Boston Road Improvements, which shall follow the procedures set forth in Paragraph 2(e)herein
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to address same. Prior to terminating this Agreement, the City, through its duly authorized
representatives, employees, and contractors, shall provide written notice of Developer's alleged
violation of the conditions of this Agreement in reasonable detail (the "Violation Notice").
Developer shall have twenty one business (21) days from receipt of the Violation Notice to
commence actions to cure such deficiencies set forth in the Violation Notice. If Developer does
not cure or commence to cure the deficiencies set forth in the Violation Notice within twenty-one
(21) business days from receipt of the Violation Notice, the City reserves the right to terminate
this Agreement. In the event the Agreement is terminated, Developer shall be prohibited from
using the Boston Road right of way until Developer receives appropriate authorization from the
City. Notwithstanding the above provisions of this Paragraph 4, the license provided for in
Paragraph 3(b) is terminable by the City in the event that the Boston Road Improvements are
abandoned by Developer.
5. Governing.Law,Binding Effect Construction and Venue.
(a) This Agreement shall be interpreted and governed by Florida Law.
(b) Each of the parties hereto warrants and represents that this Agreement is valid,
binding and enforceable against them in accordance with the terms and conditions of Florida
law.
(c) Each of the parties agrees that they have participated in the drafting of this
Agreement. Therefore the presumption that any ambiguity or vagueness in the construction of
the Agreement shall be construed against the drafter shall not apply. The terms and provisions of
this Agreement shall be guided by the express intent of the parties as determined by the overall
effect of the Agreement provisions.
(d) In the event of litigation regarding the terms of this Agreement or documents
executed as a result of this Agreement,venue of the action shall be in Volusia County.Trial shall
be non jury for any issues subject to trial.
6. Remedies and Attorney Fees. The parties hereto shall have all rights and remedies
provided hereunder and under Florida Law with respect to the enforcement of this Agreement
and hereby acknowledge and agree that each party hereto shall have the right and remedy to
bring an action or actions for specific performance and such other equitable or injunctive relief
as appropriate or necessary to enforce this Agreement The patties agree that the venue for any
enforcement action shall be the Circuit Court in and for Volusia County. In the event of litigation
to enforce the terms of this Agreement, each party shall be responsible for its own attorney's fees
and costs of suit, including any and all attorney's fees and costs incurred in pursuit of any appeal.
7. Notices. All notices, demands, or other writings required or permitted to be given or
made or sent under this Agreement, by any party to another, shall be in writing and shall be
deemed to have been fully delivered upon (i) receipt of such notice when hand delivered (by
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personal courier or overnight delivery service)to the party to whom such notice is addressed as
set forth below, (ii) receipt of such notice as indicated by the signature and date on the return
receipt of a certified mailing, or (iii) on the same day if sent by facsimile and a printed
confirmation of transmission is obtained by the sender, and addressed and transmitted to the
party to whom such notice is to be delivered as set forth below.
CITY:
Glenn Irby,City Manager
City of Edgewater
Post Office Box 100
Edgewater,FL 32132
With a Copy To:
Robin Matusick, City Clerk/Paralegal
City of Edgewater
Post Office Box 100
Edgewater,FL 32132
DEVELOPER:
Aski Development,LLC
Richard Kowaslki,Manager
524 Greeley Street
Orlando, FL 32804
With a Copy To:
8. Amendments. No amendment, modification or other changes in this Agreement shall be
binding upon the parties unless in writing executed by all of the parties.
9 Successors and Assigns Bound. The rights and obligations contained in this Agreement
shall be binding upon and shall inure to the benefit of the agenic, contractors, employees,
invitces, guests,and customers of the parties hereto, and the parents,subsidiaries, successors and
assigns of the parties hereto.
10. Effective Date. This Agreement shall become effective upon the date it is executed by the
last party to it.
11. Counterparts. This Agreement may be executed via counterparts, each of which, when
executed and delivered, shall be an original, but all counterparts shall together constitute
duplicates of one and the same instrument.
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12. Headings. The headings above the various provisions herein are for ease of reference and
are not to be used in constructing this Agreement or ascertaining the intent of the parties.
13. Recording. This Agreement shall be recorded by the Developer in the Public Records of
Volusia County,Florida within five(5)business days of its complete execution by all parties.
14. Sovereign Immunity. Nothing in this Agreement shall be deemed as a waiver of
immunity or limits of liability of the City beyond any statutory limited waiver of immunity or
limits of liability which may have been adopted by the Florida Legislature or may be adopted by
the Florida Legislature and the cap on the amount and liability of the City for damages,
attorney's fees and costs, regardless of the number or nature of claims in tort, equity or contract
shall not exceed the dollar amount set by the Legislature for tort.Nothing in this Agreement shall
inure to the benefit of any third party for the purpose of allowing any claim against the City
which would otherwise be barred under the Doctrine of Sovereign Immunity or operation of law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be made and
entered into the date and year first written above.
ATTEST: TYCO CIL OF
CI /� D FL A
By
Robin L. Matusick, D•tilre Th
City Clerk/Paralegal Mayor
Witnessed by: DEVELOPER:
'/',y��, ASKI DEVELOPMENT,LLC
D (V lu2 (�1,(�1 AIV a Florida corporation
By: '��.✓i� l �!
Richard Kowalski, Manager
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