HomeMy WebLinkAboutContract 34435a
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CONSENT AGREEMENT
FOR SIGNS
STATE OF TEXAS §
COUNTY OF TARRANT §
THIS AGREEMENT is made and entered into by and between the City of
Fort Worth, a municipal corporation of Tarrant County, Texas, acting herein by
and through its duly authorized City Manager or duly designated Assistant City
Manager, hereinafter referred to as the "City", and
DAZB Properties L.P.
acting herein by and through its duly authorized
Mana in Partner hereinafter referred to as
"Grantee", Owner of the property located at 902 Houston Street
("Property") on behalf of Houston Street Bar & Patio hereinafter referred to as
"Business", located at 902 Houston Street.
WITNESSETH:
1.
For and in consideration of the payment by Grantee of the fee set out
below and the true and faithful performance of the mutual covenants herein
contained, City hereby grants to Grantee permission to install a sign and any
supporting structure (both hereinafter referred to as "Sign") that encroaches
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upon, uses and/or occupies portions of the space under, on and/or above the
streets, alleys, sidewalks and other public rights-of-way as follows:
Sign as shown on Exhibit "A"
The location and description of said Sign and the encroachment is more
particularly described in Exhibit "A", attached hereto, incorporated herein and
made a part hereof for all purposes.
2.
All construction, maintenance and operation in connection with such
encroachment, use and occupancy shall be performed in strict compliance with
this Agreement and the Charter, Ordinances and Codes of the City and in
accordance with the directions of the Director of Transportation and Public Works
of City, or his duly authorized representative. All plans and specifications thereof
shall be subject to the prior written approval of the Director of Transportation and
Public Works, or his duly authorized representative, but such approval shall not
relieve Grantee of responsibility and liability for concept, design and computation
in preparation of such plans and specifications.
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Upon completion of construction and installation of said Sign and
thereafter, there shall be no encroachments in, under, on or above the surFace
area of the streets, alleys, sidewalks and other public rights-of-way involved,
except as described herein and shown on the hereinabove referred to Exhibit "A".
�
Grantee, at no expense to the City, shall make proper provisions for the
relocation and installation of any existing or future utilities affected by such
encroachment use and occupancy, including the securing of approval and
consent from the utility companies and the appropriate agencies of the State and
its political subdivisions. In the event that any installation, reinstallation,
relocation or repair of any existing or future utility or improvements owned by,
constructed by or on behalf of the public or at public expense is made more
costly by virtue of the construction, maintenance or existence of such
encroachment and use, Grantee shall pay to City an additional amount equal to
such additional cost as determined by the Director of Transportation and Public
Works of the City, or his duly authorized representative.
5.
City may enter and utilize the referenced areas at any time for the purpose
of installing or maintaining improvements necessary for the health, safety and
welfare of the public or for any other public purpose. In this regard, Grantee
understands and agrees that City shall bear no responsibility or liability for
damage or disruption of improvements installed by Grantee or its successors, but
City will make reasonable efforts to minimize such damage.
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In order to defray all costs of inspection and supervision which City has
incurred or will incur as a result of the construction, maintenance, inspection or
management of the encroachments and uses provided for by this Agreement,
Grantee agrees to pay to City at the time this Agreement is executed a fee in the
sum of Two Hundred and Five Dollars ($205.00).
7.
a. Subject to section 7(b) and Section 9, the term of this Agreement shall be
for thirty years, commencing on the date this Agreement is executed by the City
of Fort Worth.
b. This Agreement shall automatically terminate 30 days from the date
Business ceases to operate at 902 Houston Street.
If this Business ceases to operate, Grantee acknowledges and agrees to
comply with Section 8.
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Upon termination of this Agreement, Grantee shall, at the option of City
and at no expense to City, restore the public right-of-way and remove the Sign
encroaching into the public right-of-way, to a condition acceptable to the Director
of Transportation and Public Works, or his duly authorized representative, and in
accordance with then existing City specifications. It is understood and agreed to
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by Grantee that if this Agreement terminates because the Business ceases to
operate and Grantee fails to remove the Sign, Owner hereby gives City
permission to remove the Sign and any supporting structures and assess a lien
on the Property for the costs expended by the City to remove such Sign.
�
It is further understood and agreed upon between the parties hereto that
the City streets, alleys, sidewalks and other public rights-of-way, including the
portions of such streets, alleys, sidewalks and other public rights-of-way to be
used and encroached upon as described herein, are held by City as trustee for
the public; that City exercises such powers over the streets as have been
delegated to it by the Constitution of the State of Texas or by the Legislature; and
that City cannot contract away its duty and its legislative power to control the
streets for the use and benefit of the public. It is accordingly agreed that if the
governing body of City should at any time during the term hereof determine in its
sole discretion to use or cause or permit the said portions of the streets, alleys,
sidewalks and other rights-of-way to be used for any other public purpose,
including but not being limited to underground, surface or overhead
communication, drainage, sanitary sewerage, transmission of natural gas or
electricity, or any other public purpose, whether presently contemplated or not,
then this Agreement shall be automatically canceled or terminated.
10.
Grantee understands and agrees that the granting of any encroachment
hereunder is not meant to convey to Grantee any right to use or occupy property
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in which a third party may have an interest, and Grantee agrees that it will obtain
all necessary permission before occupying such property.
11.
Grantee agrees to comply fully with all applicable federal, state and local
laws, statutes, ordinances, codes or regulations in connection with the
construction, operation and maintenance of said Sign, encroachment and uses.
12.
Grantee agrees to pay promptly when due all fees, taxes or rentals
provided for by this Agreement or by any federal, state or local statute, law or
regulation.
13.
Grantee covenants and agrees that it shall operate hereunder as an
independent contractor as to all rights and privileges granted hereunder and not
as an officer, agent, servant or employee of City and Grantee shall have
exclusive control of and the exclusive right to control the details of its operations,
and all persons performing same, and shall be solely responsible for the acts and
omissions of its officers, agents, servants, employees, contractors,
subcontractors, licensees and invitees. The doctrine of respondeat superior shall
not apply as between City and Grantee, its officers, agents, servants, employees,
contractors and subcontractors, and nothing herein shall be construed as
creating a partnership or joint enterprise between City and Grantee.
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GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS
OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST
ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS
AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL
PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR
INDIRECTLY, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE,
EXISTENCE OR LOCATION OF SAID SIGN AND ENCROACHMENT AND
USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE
OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
LICENSEES OR INVITEES OF THE CITY; AND GRANTEE HEREBY
ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR
SUITS. GRANTEE SHALL LIKEWISE ASSUME ALL LIABILITY AND
RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ANY AND ALL
INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT OF OR IN
CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF GRANTEE,
ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS.
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15.
While this Agreement is in effect, Grantee agrees to furnish City with a
Certificate of Insurance, naming City as certificate holder, as proof that it has
secured and paid for a policy of public liability insurance covering all public risks
related to the proposed use and occupancy of public property as located and
described in Exhibit "A". The amounts of such insurance shall be not less than
the following:
Property damage, per occurrence
Bodily injury, per person
$100,000
$250,000
Bodily injury or death, per occurrence $500,000
with the understanding of and agreement by Grantee that such insurance
amounts shall be revised upward at City's option and that Grantee shall so revise
such amounts immediately following notice to Grantee of such requirement.
Such insurance policy shall provide that it cannot be canceled or amended
without at least ten (10) days prior written notice to the Building Official of the City
of Fort Worth. A copy of such Certificate of Insurance is attached as attached as
Exhibit "B". Grantee agrees to submit a similar Certificate of Insurance annually
to City on the anniversary date of the execution of this Agreement.
Grantee agrees, binds and obligates itself, its successors and assigns, to
maintain and keep in force such public liability insurance at all times during the
term of this Agreement and until the removal of all encroachments and the
cleaning and restoration of the city streets. All insurance coverage required
herein shall include coverage of all Grantee's contractors.
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16.
Grantee agrees to deposit with the City when this Agreement is executed
a sufficient sum of money to be used to pay necessary fees to record this
Consent Agreement in its entirety in the deed records of Tarrant County, Texas.
After being recorded, the original shall be returned to the City Secretary of the
City of Fort Worth, Texas
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In any action brought by the City for the enforcement of the obligations of
Grantee, City shall be entitled to recover interest and reasonable attorney's fees.
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Grantee covenants and agrees that it will not assign all or any of its rights,
privileges or duties under this contract without the prior written approval of the
City Manager or designee. Any attempted assignment without prior written
approval will be void.
19.
THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION
CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
20.
This Agreement shall be binding upon the parties hereto, their successors
and assigns.
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EXECUTED this � day of � ���,,,,, b�,� , 20
CITY OF FORT WORTH, GRANTOR DAZB Pr rties L. , GRANTEE
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By: � By:
AI Godwin, !3uilding Official
ATTEST:
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�•,�. City � ecretary
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APPROVED AS TO FORM AND LEGALITY
�55tst-aw�� City Attorney
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STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the
State of Texas, on this day personally appeared AI Godwin, known to me to be
the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same for the purposes and
consideration therein expressed, as the act and deed of the City of Fort Worth,
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this �I�- day of
`���i��A�,� , 20�.
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Notary Public in and r the
State of Texas
„"�",,,,,, R. G. NAREZ
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�; Notary Public, State of Texas
' i � = My Commission Expires
'�''""'`" September 10, 2009
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STATE OF TEXAS
COUNTY OF TARRANT
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BEFORE ME, the undersigned authority, a Notary Public in and for the
State of Texas, on this day personally appeared Darrell Melton known to me to
be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same for the purposes and
consideration therein expressed, as the act and deed of DAZB Properties, L.P.,
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE fhis � day of
, C �n,�l,�c? � , 20 � 4�?
�1�Y pug� ANGELA ESTRADA
Notary Publlc
y ` � ' STATE OF TEXAS
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City of Forf Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 7/25/2006 - Ordinance No. 17071-07-2006 & 17072-07-2006
DATE: Tuesday, July 25, 2006
LOG NAME: 06ENCROACHMENT REFERENCE NO.: G-15304
SUBJECT:
Adopt Ordinance Amending Section 3210 of the Fort Worth Building Code, City Code Section 2-9
and 7-47 to Allow Administrative Approval of Certain Encroachments that Comply with All City
Codes
RECOMMENDATION:
It is recommended that the City Council:
1. Adopt the attached ordinance to amend Section 3210 of the Fort Worth Building Code, City Code
Section 7-47 to restore administrative approval provisions for certain encroachments on public property to
be approved by the Building Official or the Director of Development;
2. Establish a tiered fee structure for this service; and
3. Adopt the attached ordinance to Amend Section 2.9 Part D of the City Code to provide for the
administrative approval of certain encroachment agreements.
DISCUSSION:
The Building Code was amended effective July 1, 2001, (M&C G-13262) to require that "all permanent
encroachments into public property shall require a duly executed Consent Agreement approved by City
Council." Prior to this update, the Building Code Amendments included the following exceptions to this
requirement for City Council approval:
1. The Building Official is hereby authorized to execute Consent Agreements on behalf of the City covering
signs that do not project more than two feet over public property when all requirements of this Code, the
Sign Code and the Comprehensive Zoning Code have been satisfied.
2. The City Manager is hereby authorized to execute Consent Agreements on behalf of the City, except as
provided in Exception No. 1 above, when the encroachment beyond the property line extends no closer
than within 18 inches of the face of the curb."
This change was prompted by a City Council concern about a downtown patio project in 1999 that was
approved administratively and generated a citizen complaint. The unintended consequence of this change
is that minor items such as replacement of existing building projections, fences, and steps and new signs
and awnings all require Council approval. The result is an increase in the average processing time from
less than 30 calendar days to approximately 45 calendar days causing delays in the issuance of building
permits. Each year, an estimated 25 encroachment agreements are presented on the City Council consent
agenda. Of these, approximately half would have been exempt from City Council review under the
previous policy. Since the new rules were established, the department has observed a significant increase
in the installation of signs prior to issuance of permits as business owners become frustrated with the
delays.
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 1/30/2007
Page 2 of 2
Adequate building codes, inspection personnel and other professional staff exist to ensure the
appropriateness of encroachments in the right-of-way. Staff recommends that the previous exceptions to
the requirement for Council approval be restored except that the Development Director will be substituted
for City Manager in the second exception. Currently, the Development Director consults with a committee
including a Transportation and Public Works representative and the Building Official to make a
recommendation to the City Manager's Office. It is proposed that the Director of Development be
authorized to execute the agreements following this consultation.
If this proposed change is approved, the Building Official may authorize sign encroachments up to two feet.
The Development Director may authorize all encroachments up to 18 inches behind the face of the curb.
The City Council will only consider encroachments into the street and alleys that exceed 18 inches behind
the face of the curb. This will save time for City staff, the City Council, and the applicants who are affected
by the delays in the issuance of their building permit.
The fee for encroachments previously was tiered depending on the level of approval and staff time
required. �th the 2001 change in the ordinance, only the $450 fee remained since all encroachments
require City Council approval. This rate was increased to $500 in 2003. Following are the proposed
authority levels and corresponding fees.
Approval
Building Official
Development Director
City Council
Fee
$170.00
$200.00
$500.00
Any loss in revenue is expected to be less than $5,000 annually and will be offset by more efficient use of
staff time.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material effect on City funds.
TO Fund/AccountlCenters
Submitted for City Manager's Office b�
Originating Department Head:
Additional Information Contact:
FROM Fund/Account/Centers
Dale Fisseler (6266)
Bob Riley (8901)
Susan Alanis (8180)
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 1/30/2007