HomeMy WebLinkAbout2024 01 22 Consent 300 - Right-of-Way Encroachment Agreement - 156 Tuskawilla Road, Suite 1344CONSENT AGENDA ITEM 300
CITY COMMISSION AGENDA | JANUARY 22, 2024 REGULAR MEETING
TITLE
Right-of-Way Encroachment Agreement - 156 Tuskawilla Road, Suite 1344
SUMMARY
The business leases space within the Winter Springs Town Center at 156 Tuskawilla
Road, Suite 1344, and operates a restaurant and bar, presently doing business as The
Fork & Barrel. The business wishes to provide outdoor dining for guests at the
restaurant by placing dining tables and seating within City’s sidewalk right-of-way. The
Code of Ordinances of the City of Winter Springs, Section 17-1, provides that a permit
from the City is required for any person to place or deposit, or to cause or allow to be
placed or deposited, on any City sidewalk or other public space, any building material
or any articles or things which may obstruct or hinder the traffic thereupon; and also
requires a permit for restaurants to locate outdoor dining upon the City's sidewalks
and right-of-way. The business and City of Winter Springs wish to enter into an
agreement to allow the business to maintain outdoor dining for the restaurant upon
the City’s sidewalk right-of-way, subject to the conditions of the agreement and subject
to the conditions of Right-of-Way Permit No. 2023-00003801.
FUNDING SOURCE
RECOMMENDATION
Staff recommends that the City Commission review and approve the Right-of-Way
Encroachment Agreement for 156 Tuskawilla Road, Suite 1344.
5
Right of Way Use Agreement
City of Winter Springs and FL Kitchen Concepts, LLC (Fork & Barrel)
Page 1 of 8
Prepared by and return to:
Anthony A. Garganese
City Attorney
Garganese, Weiss, D’Agresta & Salzman, P.A.
P.O. Box 2873
Orlando, FL 32802-2873
RIGHT OF WAY USE AGREEMENT
THIS RIGHT OF WAY USE AGREEMENT (“Agreement”) is made this _________
day of ____________________, 20____, by and between the CITY OF WINTER SPRINGS, a
Florida municipal corporation whose address is 1126 E. State Road 434, Winter Springs, Florida
32708 (“City”), and FL Kitchen Concepts, LLC DBA The Fork & Barrel Winter Springs, a
Florida Limited Liability Company with its principal address at 156 Tuskawilla Road, Suite 1344,
Winter Springs, Florida 32708 (“Business”) (collectively “Parties”).
WITNESSETH
WHEREAS, the Business leases space within a commercial property located in the Winter
Springs Town Center at 156 Tuskawilla Road, Winter Springs, Florida 32708, and thereupon
operates a restaurant and bar (“Restaurant”) (presently doing business as The Fork & Barrel); and
WHEREAS, Business desires to provide outdoor dining for guests at the Restaurant by
placing dining tables and seating within City’s sidewalk right-of-way; and
WHEREAS, the Code of Ordinances of the City of Winter Springs, Section 17-1, provides
that a permit from the City is required for any person to place or deposit, or to cause or allow to
be placed or deposited, on any City sidewalk or other public space, any building material or any
articles or things which may obstruct or hinder the traffic thereupon; and
WHEREAS, the Code of Ordinances Section 17-1 requires a permit for restaurants to
locate outdoor dining upon the City’s sidewalks and other rights-of-way; and
WHEREAS, pursuant to The City of Winter Springs Code of Ordinances Section 17-1, the
Parties hereto wish to enter into this Agreement to allow Business to maintain outdoor dining for
the Restaurant upon the City’s sidewalk right-of-way, subject to the conditions of this Agreement
and subject to the conditions of Right-of-Way Permit No. 2023-00003801.
NOW, THEREFORE, in consideration of the terms and conditions set forth herein, the
parties agree as follows:
Section 1. Recitals. The recitals set forth above are true and correct and are incorporated
herein by this reference.
6
Right of Way Use Agreement
City of Winter Springs and FL Kitchen Concepts, LLC (Fork & Barrel)
Page 2 of 8
Section 2. Right of Way Use. This Agreement shall operate as a permit required pursuant
to the City of Winter Springs Code of Ordinances Section 17-1 in conjunction with Right of Way
Permit No. 2023-00003801. The City hereby authorizes and allows Business to utilize the City’s
sidewalk right-of-way to provide outdoor dining for guests at Restaurant, subject to the following
conditions.
a. The Business must provide a site plan for sidewalk dining at Restaurant containing a
description and depiction of the outdoor dining space, to be attached hereto as Exhibit
“A” and incorporated herein by this reference. The site plan shall show clearly what
space will be used for outdoor dining and shall state what materials will be placed
thereon.
i. The site plan shall include a scaled drawing showing the layout and
dimensions of the existing sidewalk area and adjacent private property,
proposed location, size and number of tables, chairs, umbrellas, location of
doorways, location of trees, parking meters, bus shelters, sidewalk benches,
trash receptacles, and any other sidewalk obstruction or object either
existing or proposed within the pedestrian area.
ii. The site plan shall also include photographs, drawings or manufacturers'
brochures fully describing the appearance of all proposed tables, chairs,
umbrellas or other objects being proposed to be used in the outdoor dining
area.
The Business may request amendments to the site plan, which may be approved by the
City’s Community Development Director in writing. Any amendment requested shall
otherwise conform to the conditions and requirements of this Agreement. Amendments
to the site plan shall require review and approval by the Community Development
Department as well as Seminole County Fire Department to ensure adequate
accessibility for the public and fire safety.
b. If the City Commission, or designee, determines in their discretion that protective
devices such as guardrails or barriers are necessary to protect motorists or pedestrians,
such protective devices shall be included in the site plan and shall be constructed in
accordance therewith.
c. The outdoor sidewalk dining area shall continue to be permitted only insofar as it
conforms to the site plan and is not otherwise in breach of this Agreement.
d. Business agrees that the outdoor sidewalk dining area shall not encroach upon the
City’s right-of-way to a greater extent than is depicted in the site plan.
e. The outdoor dining area as depicted in the site plan, including all protective devices,
shall be maintained such that under no circumstances are the City’s sidewalks or other
7
Right of Way Use Agreement
City of Winter Springs and FL Kitchen Concepts, LLC (Fork & Barrel)
Page 3 of 8
rights-of-way obstructed to not allow for the safe and orderly passage of pedestrian and
vehicular traffic.
i. All tables, chairs, benches, or other objects within the outdoor dining area
shall be arranged at all times in a manner that provides a minimum three (3)
foot clear pedestrian path. The paths can be maintained in any configuration.
As circumstances dictate, a wider path may be required to protect the public
health, safety, and welfare.
ii. Tables, chairs, and other objects shall not be placed within three (3) feet of
a pedestrian crosswalk.
f. Business shall maintain the sidewalk dining area so that the area is clean and free of
trash and debris. The City shall have the ultimate discretion in determining whether
Business is maintaining the sidewalk dining area in a clean and orderly fashion.
i. Tables, chairs, benches and any other objects provided with a sidewalk cafe
shall be maintained with a clean and attractive appearance and shall be in good
repair at all times.
ii. The outdoor sidewalk dining area shall be cleared of all debris on a periodic
basis during the day and again at the close of each business day.
g. Business agrees to ensure that Restaurant will not damage the right-of-way. In the event
Restaurant does damage the right-of-way, Business must repair said damage
immediately at Business’s expense; or at the option of the City, the City will repair said
damage and Business must immediately thereafter reimburse City for said cost and
expense.
h. Tables, chairs, benches, and any other objects associated with the sidewalk outdoor
dining area shall be of quality design, materials and workmanship to ensure safety and
convenience of users and to enhance the visual and aesthetic quality of the urban
environment. Design, materials, and colors shall be compatible and harmonious with
the urban environment and shall compliment the design and paint colors on the building
associated with the Restaurant and with the aesthetics of the Town Center District.
i. No tables, chairs, benches, nor any other objects of Restaurant shall be attached,
chained or in any manner affixed to any tree, post, sign, or other fixtures, curb or
sidewalk within or near the permitted sidewalk area.
j. Pass through windows, take out windows or similar types of windows are not permitted.
Service of the outdoor dining area shall be from a main doorway Restaurant.
k. Cooking facilities are prohibited within the outdoor sidewalk dining area. All food or
drinks served within the outdoor dining area shall be prepared inside the Restaurant.
8
Right of Way Use Agreement
City of Winter Springs and FL Kitchen Concepts, LLC (Fork & Barrel)
Page 4 of 8
l. Signage shall not be allowed in the right-of-way, except one (1) menu board and
signage on the building associated with the Restaurant, if allowed pursuant to the City's
Town Center Code.
m. If Restaurant will be serving beer and/or wine at the sidewalk outdoor dining area,
Restaurant shall post a sign, visible at all exit points of the sidewalk cafe, legibly stating
in English that it is unlawful to remove alcoholic beverages in open or unsealed
containers from the licensed premises. Beer and/or wine may be served by the permittee
for consumption at the sidewalk dining area provided the requirements of this
Agreement are complied with. It shall be unlawful for Restaurant to intentionally,
knowingly, or recklessly allow any person that is served alcohol at the Restaurant’s
alcohol licensed premises to remove or consume such alcohol outside the designated
outdoor dining area.
Section 3. Term. This Agreement shall be effective for one (1) year from the date first above
written (the “Effective Date”), subject to annual renewal by the City’s Community Development
Director.
Section 4. Termination. Either party shall have the right to terminate this Agreement with or
without cause upon thirty (30) days’ advance written notice provided to the other Party. Should
this Agreement be terminated, Business is to inform Restaurant accordingly. This Agreement does
not run with the land and shall terminate automatically upon Business’ termination of its operation
of Restaurant, upon Business’ transfer of the ownership of Restaurant, or upon the expiry of
Business’ lease of the 156 Tuskawilla Road property.
Section 5. Indemnity. To the fullest extent permitted by law, Business hereby indemnifies
and agrees to hold harmless City, its officers, agents, and employees, from and against all claims,
damages, losses, and expenses, including court costs and reasonable attorney’s fees, through all
appellate proceedings, for any and all claims, including damage to property, personal injury, or
wrongful death, arising out of or resulting from the issuance of this Agreement and the use and
operations of the outdoor dining area on and within the City’s sidewalk right-of-way.
Section 6. Insurance. Business shall include, as Exhibit “B,” which is attached hereto and
incorporated herein by this reference, proof of insurance in the form of a certificate of insurance
and copies of the actual policy endorsements naming the city as an additional insured for insurance
of the types and amounts set forth below:
a. Minimum insurance policy limits:
i. Business shall maintain commercial general liability insurance covering Restaurant
with a minimum per occurrence limit of not less than one million dollars
($1,000,000.00) and with a deductible amount not more than five thousand dollars
($5,000.00) absent approval of the City Manager. The City shall be named as an
9
Right of Way Use Agreement
City of Winter Springs and FL Kitchen Concepts, LLC (Fork & Barrel)
Page 5 of 8
additional insured on the commercial general liability insurance policy, as the City's
interests may occur.
ii. If Business is engaged in the sale or furnishing of alcoholic beverages, Business
shall also maintain liquor liability insurance covering the Restaurant with a
minimum per occurrence limit of not less than one million dollars ($1,000,000.00)
and with a deductible amount not more than five thousand dollars ($5,000.00)
absent approval of the City Manager. The City shall be named as an additional
insured on the liquor liability insurance policy, as the City's interest may occur.
iii. Business shall maintain, during the life of this Agreement, adequate Worker’s
Compensation Insurance in at least such amounts as required by law.
b. The required insurance coverage shall be obtained by the Business at the Business’ sole
expense. Business shall provide for not less than thirty (30) days written notice of
cancellation, expiration or termination of any insurance coverage provided herein.
c. Business shall maintain liability insurance for the duration of this Agreement.
Section 7. City Access. The City will not be restricted in any manner from accessing,
maintaining, repairing, or reconstructing the sidewalk right-of-way. The City reserves all rights
and privileges to access and utilize the sidewalk right-of-way for any and all public purposes and
in no way waives such right or interest by virtue of this Agreement. Should City desire to utilize
the sidewalk right-of-way for any public purpose, the City shall retain the right to remove or
prohibit outdoor dining and any other private use interfering with such public use by lawful means.
The utilities department, the police department, and/or the fire department may immediately
remove or relocate all or part of the outdoor dining area in emergency situations. The city and its
officers and employees shall not be responsible for outdoor dining components relocated during
emergencies.
Section 8. Jurisdiction. This Agreement shall be construed and enforced in accordance with
the laws of the State of Florida. Venue for any action arising under this Agreement shall be in
Seminole County, Florida, for state actions or Orlando, Florida, for federal actions.
Section 9. Warranty. Business warrants that Restaurant is in possession of all permits and
licenses required to operate a restaurant and bar in the State of Florida and City of Winter Springs,
including a valid City of Winter Springs Business Tax Receipt. Business warrants that the sidewalk
outdoor dining area has been included in the alcohol licensed premises pursuant to all applicable
State of Florida beverage laws. If the sidewalk outdoor dining area has not been included in the
alcohol licensed premises, Restaurant shall not serve alcohol in the outdoor dining area.
[Signature Page to Follow]
10
Right of Way Use Agreement
City of Winter Springs and FL Kitchen Concepts, LLC (Fork & Barrel)
Page 6 of 8
IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals hereto on
the day and year first above written.
CITY OF WINTER SPRINGS FL KITCHEN CONCEPTS, LLC
By: _______________________ By: ________________________
Kevin McCann, Mayor Print: ________________________
Title: ________________________
Date: _______________________ Date: ________________________
ATTEST:
__________________________
Christian Gowan, City Clerk
11
Right of Way Use Agreement
City of Winter Springs and FL Kitchen Concepts, LLC (Fork & Barrel)
Page 7 of 8
EXHIBIT A
OUTDOOR DINING SITE PLAN
EXHIBIT B
12
Right of Way Use Agreement
City of Winter Springs and FL Kitchen Concepts, LLC (Fork & Barrel)
Page 8 of 8
PROOF OF INSURANCE
13
1- -t-;;l=>4s;I a+ ~:;lJ+s~.JU, t.1I ??~\ lS::l\...\JU:J<{l.p ?\Cf-J .Ld-\l(Y)\.,\)\)\ 85;I I"::> \C\O+o+&.Y r~~ ~'\\1nq/) 97 '-"'CUJ -tj S rx3 J +~-:;>..>.TS1o+ ::i:u..\-S::l'-\JU \ t:.~ "'V~u1f~~t ~~~1 ""~LS~:AJ?~ If' S:,)\,.\'JU :;l<d.l....l,':)U:)~~ ~qo+Jfl\'"''-PUI &S~ ? \ q--o LI 1" -::i \°I°..\-~~I("\ ::>f I rt'~;u1gs ~JU\ 8£1Ii r~b d');7b c.\.uG~ +-1-7?~I:;- - +6 ~ ?~I:::-- + j- --:}~f\"0.\--SE'1~j2'£. t:.~~cc,0 1-\J" 2>/' ""' /' /4'.J,/t//'\-"000)\ "'OOC) :>?f;(Y\ /- -r~:d_j \11 '- l8 '\1'2 I #- 1" \7 \-i'C;\ #- )f~ -0 \ \ \ \f\·r:T~ SYIJ_ 'I~ \ ___>G \~'d~ TU-OJ.~dt1 ¥')'-'.'P\':nqJO f-l~l.,o+ d-ob-\j s; 'tJ~/ /~\-\1S't ) // \ +j ()\ ) ~\ .;t. OOCI)-(j)~Eze_ 02023-00003801 ROW OUTDOOR SEATING
12/13/23
14
~ VJc 8-c0.JJ-t]v-V)--0 I] u_c ~c~:D3~~ d~uv3(/)qJ0du-_oVJ:rL c'>-ztu-t8tc- V)ct c-0 8LDJ00 LO Ct) V) -+-3\_-0-xu<U u-u 0 - _;J>-§~......__~ § (j 0d l:>--( /) -- ~ ~v 3-VJ Pl- -+---·dV) --&u~~] cu-s~-- qJ \]15 -t-~--8L)0_SJ<( /-0~c2D~0~d -1-*t_od-*P--?\2023-00003801 ROW OUTDOOR SEATING
12/13/23
15
16
17
18
19
20
21
22
23
24