czzzz e 0-gV) City of South Daytona - &TON4 MEMORANDUM From: John Schoch, Asst. City Manager Date: November 5,2007

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1 City of South Daytona - Community Development Department Post Office Box South Daytona, FL FAX &TON e 0-gV) czzzz7 - MEMORANDUM To: Joseph W. Yarbrough, City Manager From: John Schoch, Asst. City Manager Date: November 5,2007 Y Re: ORD. NO , REZONE TO PCD, 949 BEVILLE RD. In order to allow more flexibility as to uses for business park-type properties fronting on arterial roadways, often the property-owners request that their existing light-industrial andlor heavy commercial zoning be changed to Planned Commercial Development (PCD), which can allow more of a variety of uses---e.g. retail, service, and professional office businesses---than the more restrictive zoning categories. With a PCD, there is a Master Development Agreement which sets forth the conditions and range of uses. Staff has found the PCD tool to be quite useful and successful because it cuts down on "use denials" and makes it easier for the property owner to find tenants. This approach has already been successfully applied to such projects as Twin Fountains, the 933 Beville Rd. Business Park, the former RR Donnelley Business Park, the Landmark Business Park, and the Nova Fountain Center next to Reed Canal Park. In the context of the above, the owner of the John's Appliance City complex has requested rezoning to PCD. This proposal was given unanimous approval by the LDRB, and the rezoning action has been duly advertised.

2 ORDINANCE NO (REZONING TO PCD) AN ORDINANCE OF THE CITY OF SOUTH DAYTONA, FLORIDA, AMENDING THE OFFICIAL ZONING MAP BY REZONING 949 BEVILLE RD. ("JOHN'S APPLIANCE CITY" COMPLEX) FROM BUSINESS HEAVY COMMERCIAL AND LIGHT INDUSTRIAL TO PLANNED COMMERCIAL DEVELOPMENT (PCD); PROVIDING FOR REPEAL OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the property at 949 Beville Rd. ("John's Appliance City" complex) is currently zoned Business Heavy Commercial (BHC) and Light Industrial (LI); and WHEREAS, the subject property is suitable for a wider variety of uses than permitted by the existing BHC and LI zoning; and WHEREAS, rezoning the subject property to PCD would allow the wider variety of uses for which the property is suitable; and WHEREAS, rezoning the subject property to PCD would not be inconsistent with its underlying Commercial and Light Industrial classifications as shown on the Future Land Use Map (FLUM) of the Comprehensive Plan; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTH DAYTONA, VOLUSIA COUNTY, FLORIDA, THAT: SECTION 1-Proper@ Rezoned to Planned Commercial Development. "PART OF LOTS 136 & 137 E OF CANAL BLAKE PER DB 366 PG 29 & OR 347 PG 240 EXC IRREG PARCEL BEING E FT MEAS ON N/S & E FT MEAS ON S/L EXC R/W & EXC W FT OF S FT FOR NEW R/W PER OR 4634 PG 0712 PER OR 5624 PG , Public Records of Volusia County, Florida". SECTION 2-Master Development Agreement. Attached hereto as Exhibit "A" is a Master Development Agreement for the PCD, including a location/zoning map of the subject parcel rezoned to PCD. Page 1 of 2

3 CITY OF SOUTH DAYTONA PLANNED COMMERCIAL DEVELOPMENT AGREEMENT (PCD) FOR 949 BEVILLE ROAD THIS AGREEMENT entered into and made as of the th day of December, 2007, by and between the CITY OF SOUTH DAYTONA, FLORIDA (hereinafter also referred to as the "City"), and the BEVILLE LIMITED PARTNERSHIP (hereinafter also referred to as the "Owner/Developer"). WITNESSETH WHEREAS, the Owner/Developer warrants that it holds legal title to the property described in Paragraph 1 below and that the holders of any and all liens and encumbrances affecting such property will subordinate their interests to this Agreement; and WHEREAS, the OwnerIDeveloper desires to facilitate the orderly development of the subject property, in compliance with the laws and regulations of the City, and of other governmental authorities, while at the same time maximizing those business use opportunities for which the business park is designed; and WHEREAS, it is the purpose of this Agreement to clearly set forth the understanding and agreement of the parties concerning the matters contained herein; NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Ownership. The OwnerIDeveloper represents that it is the present owner of the following described property (hereinafter referred to as the "Subject Property"), commonly known as 949 Beville Rd.: "PART OF LOTS 136 & 137 E OF CANAL BLAKE PER DB 366 PG 29 & OR 347 PG 240L EXC IRREG PARCEL BEING E FT MEAS ON NIS & E FT MEAS ON S/L EXC R/W & EXC W FT OF S FT FOR NEW R/W PER OR 4634 PG 0712 PER OR 5624 PG , Public Records of Volusia County, Florida". 2. Title Certification. The OwnerIDeveloper will provide to the City, in advance of the City's execution of this Agreement, documentation, acceptable to the City, which constitutes proof of the Owner/Developer's title to the subject property. 3. Obligations for Infrastructure Operation and Maintenance. The proposed utility facilities shown on the City approved site plan are and shall be privately operated and maintained. The

4 OwnerlDeveloper hereby acknowledges that the City will not accept the ownership, operation or maintenance of any utilities (including but not limited to sanitary sewer, potable water, reclaimed water, or storm sewer) from a project which was approved as a single ownership development and which is subsequently split into multiple ownership. The City will not accept for ownership, operation or maintenance any sanitary sewer system, potable or reclaimed water systems or drainage system that is inconsistent with the City's plan(s). 4. Landscape Maintenance. The OwnerIDeveloper and its heirs, successors and assigns agrees, at its own cost and expense, to at all times properly maintain and replace as necessary the landscaping required pursuant to this Agreement. 5. Permitted Uses Within the PCD. The development and use of the subject property shall be in accordance with the uses prescribed for the approved PCD. The location and layout of said land use areas are shown on the approved site plan, Exhibit "A". The following land uses shall be allowed as permitted principal uses and structures along with their customary accessory uses and structures: A. Permitted uses consist of all those permitted uses set forth within the zoning categories of Business General Commercial (BGC), Business Heavy Commercial (BHC), Business Professional Office (BPO), and Light Industrial (LI) provided that they are compatible with one another in terms of on-site performance impacts. Determinations of compatibility/incompatibility shall be made by the City Manager or his designee after consultation with the OwnerIDeveloper. B. Special Uses (Special Use Permit): Special Uses as set forth in the Consolidated Land Development Regulations of the City may be allowed if approved through the Special Use Permit process of those regulations. C. Special Exceptions (Special Exception Permit): Special Exceptions as set forth in the Consolidated Land Development Regulations of the City may be allowed if approved through the Special Exception Permit process of those regulations. 6. Development Standards. Those development standards in effect at the time of site plan approval will remain in effect, including: off-street parking and loading requirements, required building setbacks, maximum building height, maximum lot coverage, and landscaping and buffering requirements. 7. Sewage Disposal and Potable Water. Provision for sewage disposal and potable water shall be provided by connection to the City's central water and sewer system. 8. Stormwater Drainage. Provision for stormwater retentioddetention and management shall be in accordance with the Land Development Code and the requirements of the St. John's River Water Management District. 9. Enforcement. In the event that enforcement of this Agreement by the City becomes necessary, and the City is successful in such enforcement, the OwnerIDeveloper shall be responsible for all costs and expenses, including attorneys' fees, whether or not litigation is necessary, and if

5 necessary, both at trial and on appeal, incurred in enforcing or ensuring compliance with the terms and conditions of this Agreement. 10. Indemnification. The Owner/Developer shall indemnify and hold the City harmless from and against all claims, demands, disputes, damages, costs, and expenses (to include attorneys' fees, whether or not litigation is necessary, and if necessary, both at trial and on appeal), incurred by the City as a result, directly or indirectly, of the use or development of the property described in Paragraph 1 above, by the City or by third parties, except those claims or liabilities caused by or arising from the gross negligence of the City, or its employees or agents. It is specifically understood that the City is not guaranteeing the appropriateness, efficiency, quality or legality of the use or development of the Subject Property, including, but not limited to, drainage or sewer plans, fire safety, or quality of construction, whether or not inspected, approved, or permitted by the City. 11. Site Plan Approval. The approved site plan shall be that attached hereto as Exhibit "A". However, it may be modified prior to construction as per mutual written agreement between the City and the Owner/Developer. All future submitted plans and subsequent development shall be in accordance with and subject to the terms of said site plan approval. 12. Recordinn and Effective Date. This Development Agreement and all subsequent amendments shall be filed with the Clerk of the Court of Volusia County, Florida, and recorded following execution of the document by the City Council, in the Official Records of Volusia County, Florida. One copy of the document, bearing the book and page number of the Official Record in which the document was recorded, shall be submitted to the City of South Daytona.. The applicant shall pay all legal and filing costs for recording documents. 13. Compliance. The Owner/Developer agrees that it, and its successors and assigns, will abide by the provisions of this Agreement and the City's Land Development Code. Further, all required improvements, including landscaping, shall be continuously maintained by the OwnerIDeveloper, or its successors and assigns, in first-class workmanlike fashion so as to present a pleasing appearance and to ensure compliance with the City's Land Development Code. The City may, after forty-five (45) days written notice and a period of time to cure deficiencies without prejudice to any other legal or equitable right or remedy it may have, withhold permits, certificates of occupancy or approvals to the Subject Property should the OwnerIDeveloper fail to comply with the terms of this Agreement. 14. Utility Easements. So long as the easements do not materially interfere with the Owner/Developer7s use and enjoyment of the Subject Property, the Owner/Developer shall provide to the City such easements and other legal documentation, in form acceptable to the City Attorney, as the City may deem necessary or appropriate for the installation and maintenance of the City's utility services, including but not limited to, drainage sewer, water, and reclaimed water services. 15. Notices. Where notice is herein required to be given, it will be by certified mail-return receipt requested, addressee only, hand delivery, or courier. Said notice shall be sent to the following, as applicable:

6 OWNERIDEVELOPER'S REPRESENTATIVE: John Hinton or designee Beville Limited Partnership 949 Beville Rd. South Daytona, Florida CITY'S REPRESENTATIVE: City Manager or designee City of South Daytona 1672 S. Ridgewood Avenue South Daytona, Florida If any party identified above is replaced, it shall be said party's obligation to notify the remaining parties of the change as is required for notices herein. It shall be the OwnerIDeveloper's obligation to identify its lender(s) to all parties as is required for notices herein. 16. Other City Approvals and Permits. The approval and execution of this Agreement by the City does not exempt the OwnerIDeveloper of the Subject Property from obtaining any and all other approvals and permits necessary to obtain Development Orders andlor Building Permits for the development, redevelopment, modification, or maintenance of the Subject Property. 17. Captions. The captions used herein are for convenience only and shall not be relied upon in construing this Agreement and Grant of Easement. 18. Binding Effect. This Agreement shall run with the land, shall be binding upon and inure to the benefit of the OwnerIDeveloper and its assigns and successors in interest, and the City and its assigns and successors in interest. The OwnerIDeveloper agrees to pay the cost of recording this document in the Public Records of Volusia County, Florida. This Agreement does not, and is not intended to, prevent or impede the City from exercising its legislative authority as the same may affect the Subject Property. 19. Severabilit~, if any part of this Developer's Agreement is found invalid or unenforceable in any court, such invalidity or unenforceability shall not affect the other parts of this Developer's Agreement, if the rights and obligations of the parties contained herein are not materially prejudiced and if the intentions of the parties can be effected. To that end, this Developer's Agreement is declared severable. IN WITNESS WHEREOF, the OwnerIDeveloper and the City have executed this Agreement as of the day and year first above written.

7 Signed, sealed and delivered In the presence of: Owner/Developer: Beville Limited Partnership By: City of South Daytona: Blaine O'Neal, Mayor ATTEST: Joseph W. Yarbrough City Manager CERTIFIED AS TO FORM: Scott Simpson City Attorney

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9 EXHIBIT A-2 (ZONING MAP) MASTER DEVELOPMENT AGREEMENT ORD REZONING TO PLANNED COMMERCIAL DEVELOPMENT FOR 949 BEVILLE RD.