Town Council approves ROW agreement
After reviewing the standard Town Right-Of-Way Agreement used for projects involving its Commercial Design Standards, the Fort Myers Beach Town Council considered and chose options for six issues regarding only Old San Carlos Boulevard. The Town will use this agreement as a boilerplate for a general ROW for the rest of the Beach.
The action was taken after the previous Town Council set an annual ROW Agreement for use in conjunction with Town-approved projects utilizing CDSs. The current Town Council directed the Local Planning Agency to review and evaluate the ROW issues. In mid-September, the LPA passed Resolution 2009-17 which included recommended changes to the agreement.
The Town Land Development Code requires that commercial buildings have traditional pedestrian-oriented exteriors and further requires that commercial buildings located on Old San Carlos Boulevard maintain a continuous awning or canopy unless the sidewalk is shaded by an arcade or colonnade which may encroach into a Town ROW, provided explicit permission is granted by the Town.
With FMB Mayor Larry Kiker absent at the meeting due to his recovery from an emergency appendectomy, the Town Council was down to four voting members. Without a fifth member to serve as a tie-breaker on some options, the four Council members held lengthy discussions on some of the issues brought forth. The sixth issue became a stale mate and took close to an hour to resolve.
The following are the six issues which were voted on: 1) Eliminate/Retain Agreement – Council decided to continue the existing agreement with modifications; 2) Scope – Council agreed to the current provision which is to apply to any structure with any encroachments into the Town Right-of Way along Old San Carlos Boulevard: 3) Term of Agreement – Council agreed with the LPA’s perpetual suggestion; 4) Fee for Use of ROW – Council decided to eliminate fee for all CDS encroachments; 5) Licensee’s Obligation to Insure – Council agreed with Town Staff on licensee to provide $1 million/$3 million insurance with no annual indexing increase but Town can increase the amount in the future; and 6) Licensee’s Duty to Repair – Council stalemated on a 2-2 count, had a 10-minute recess, then Councilwoman List changed her position and chose option #2 which causes licensee to be responsible for repair of damage to ROW caused by licensee or any third party as a result of licensee’s use of ROW and, if structure and/or ROW is destroyed by an “Act of God,” licensee must repair at licensee’s sole cost.
“After listening to everyone’s argument, I do believe option #2 is the best decision for the Town and the taxpayers in general because I do see the potential for endless indication leaving it open for interpretation,” said List.