HomeMy WebLinkAboutContract 56177 Date Received: 08/17/2021 _ City Secretary
Time Received: 1:44 pm Number: 56177
PUBLIC PROPERTY EASEMENT ENCROACHMENT LICENSE AGREEMENT
TIER III
THIS AGREEMENT is made and entered into by and between THE CITY OF
FORT WORTH, a home rule municipal corporation of Tarrant County, Texas ("City"),
acting by and through its duly authorized City Manager, Assistant City Manager, or
Director of the Development Services Department, and Bowie Place Properties, LLC, a
limited liability company("Licensee"),acting by and through its duly authorized managing
member.
RECITALS
WHEREAS, Licensee is the owner of the real property located at 3736 Camp
Bowie Boulevard, Fort Worth, Texas 76107 ("Property"), being more particularly
described in the attached Exhibit"A" which is incorporated herein for all purposes; and
WHEREAS, the City owns or has an interest in a 15' alley and a sanitary sewer
casement (the "Public Property") adjacent to the Property as shown in the attached
Exhibit "B," which is incorporated herein for all purposes, and as recorded in the plat
records of Tarrant County as plat number FS21-065; and
WHEREAS, Licensee desires to construct, place, and maintain certain
improvements which will encroach in, on, above, or below the Public Property; and
WHEREAS Licensee has received consent from the other franchise utility
companies to construct, place, and maintain the improvements within the public utility
casement; and
WHEREAS, to accommodate the needs of the Licensee, the City will allow the
encroachment under the terms and conditions as set forth in this Agreement.
NOW, THEREFORE, the City and Licensee agree as follows:
AGREEMENT
1.
The City, in consideration of the payment by Licensee of the fee set out below and
covenants and agreements hereinafter contained to be kept and performed by Licensee,
hereby grants permission to Licensee to encroach in, on, above, or below and occupy a
portion of the City's Public Property as described in and at the location shown on Exhibit
"C," but only to the extent shown thereon, for the purpose of constructing, installing, and
maintaining:
Tier III Easement Encroachment Agreement OFFICIAL RECORD
PN21-00041 CITY SECRETARY
FT. WORTH, TX
(1) approximately 1,770 sq. feet of concrete pavement, approximately 344.5 linear
feet of screening wall, 41 linear feet of a building, and 246 sq. feet of a garage structure
wall on the 15' alley(the "Alley Encroachment") and;
(2) an underground parking garage, soil retention system including piers, retaining
wall, fencing, screening wall and irrigation system on and below the City's sanitary sewer
easement (the "Sanitary Sewer Encroachment") (collectively,the"Encroachment').
Upon completion of the Encroachment, Licensee agrees to be responsible for
maintaining the Encroachment within the Public Property. Licensee shall not expand or
otherwise cause the Encroachment to further infringe in or on the Public Property beyond
what is specifically described in Exhibit "C."
2.
All construction, installation,maintenance,and operation of the Encroachment and
the use or occupancy of the Public Property shall comply with and be performed in strict
compliance with this Agreement and with the charter, ordinances, codes, and policies of
the City. Prior to the construction or installation of the Encroachment, Licensee shall
submit all plans and specifications to the Director of the Development Services Department
or duly authorized representative. Licensee shall not commence construction or
installation of the Encroachment nor make any use of the Public Property until after the
execution of this Agreement.
3.
Licensee, 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 and the
use and occupancy of the Public Property. For the Alley Encroachment, Licensee has
received the approval and consent of certain franchise utility companies and such consents
are attached hereto as Exhibit "D." Licensee agrees that it shall secure the approval and
consent of all other appropriate utility companies and agencies of the State of Texas and
its political subdivisions. In the event that any installation, reinstallation, relocation, or
repair of any existing or future utility or improvements owned by or 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 the Encroachment and use of Public Property, Licensee shall
pay to City an additional amount equal to such additional cost as determined by the Director
of Transportation and Public Works,the Director of the Water Department,the Director of
the Development Services Department, or their duly authorized representative.
4.
Licensee agrees that City may enter and utilize the Public Property at any time for
any public purpose, including installing, repairing, replacing,or maintaining improvements
to its public facilities or utilities necessary for the health, safety, and welfare of the public.
Tier III Easement Encroachment Agreement
Page 2 of 14
PN21-00041 Revised 11/2020
The City shall have no responsibility or liability for any damages related to the
Encroachment resulting from the City's use of the Public Property; however,the City shall
make reasonable efforts to minimize such damage.
5.
Upon termination of this Agreement, Licensee shall, at the option of and at no
expense to the City, remove the Encroachment and restore the Public Property to a
condition acceptable to the Director of Transportation and Public Works, the Director of
the Water Department, the Director of the Development Services Department or their duly
authorized representative. Any such removal of the Encroachment shall be in accordance
with then-existing City regulations and policies. It is understood and agreed to by Licensee
that if this Agreement terminates and Licensee fails to remove the Encroachment and
restore the Public Property, Licensee hereby gives City permission to remove the
Encroachment and any supporting structures from the Public Property,to restore the Public
Property, and to assess a lien on the Property for the costs expended by the City in taking
such actions.
6.
In order to defray all costs of inspection and supervision which the City has incurred
or will incur as a result of the construction, maintenance, inspection or management of the
Encroachment and use of Public Property as provided for by this Agreement, Licensee
agrees to pay to City at the time this Agreement is requested an application fee in the sum
of Five Hundred Dollars ($500.00). For the Alley Encroachment, Licensee further agrees
to pay a fee in the amount of$1.44 per square/linear foot of the encroachment area upon
execution of this Agreement and annually thereafter(the "Annual License Fee"). However,
in the event that the alley is vacated and the City retains only a utility easement,the Annual
License Fee shall not be required for any year following the year in which the alley is
vacated.
7.
The term of this Agreement shall be for thirty (30)years, commencing on the date
this Agreement is executed by City. However, the City may terminate this Agreement
upon Licensee's noncompliance with any of the terms of this Agreement. City shall notify
Licensee in writing of any such noncompliance and if Licensee does not cure the
noncompliance within thirty (30) days of notice from City, the City may terminate this
Agreement. However, the City may, at its sole option, allow the Agreement to remain in
effect so long as Licensee has taken reasonable measures to cure the noncompliance or is
continuing to diligently attempt to remedy the noncompliance.
S.
It is further understood and agreed between the parties hereto that the Public
Property to be used and encroached upon is held by City as trustee for the public; that City
exercises such powers over the Public Property as have been delegated to it by the
Constitution of the State of Texas or by the Texas Legislature; and that City cannot contract
Tier III Easement Encroachment Agreement
Page3of14
PN21-00041 Revised 11/2020
away its duty and its legislative power to control the Public Property for the use and benefit
of the public. It is accordingly agreed that if the governing body of City may at any time
during the term hereof determine in its sole discretion to use or cause or permit the Public
Property 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, that the parties agree to negotiate in good faith in order to
accommodate both the Encroachment and the public purpose.
9.
LICENSEE COVENANTS AND AGREES TO INDEMNIFY,AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS,
AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS 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 THE ENCROACHMENT AND USES
GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN
PART, BY THE ALLEGED NEGLIGENCE OF OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
LICENSEES, ELECTED OFFICIALS, OR INVITEES OF THE CITY; AND
LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR
SUCH CLAIMS OR SUITS. LICENSEE 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 THE ENCROACHMENTS AND ANY AND ALL ACTS
OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR
INVITEES.
10.
While this Agreement is in effect, Licensee agrees to furnish City with a Certificate
of Insurance naming City as certificate holder as proof that is 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 "C." The amounts of
such insurance shall be not less than
$1,000,000
with the understanding and agreement by Licensee that such insurance amounts may be
revised upward at City's option and that Licensee shall so revise such amounts immediately
following notice to Licensee of such requirement. Such insurance policy shall not be
canceled or amended without at least thirty(30) days prior written notice to the Building
Tier III Easement Encroachment Agreement
Page 4 of 14
PN21-00041 Revised 11/2020
Official of the City. A copy of such Certificate of Insurance is attached as Exhibit "E"
and incorporated herein for all purposes. Licensee agrees, binds, and obligates itself and
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 the Encroachment and
restoration of the Public Property. All insurance coverage required herein shall include
coverage of all Licensee's contractors and subcontractors. Licensee agrees to submit a
similar Certificate of Insurance annually to the City on the anniversary date of the
execution of this Agreement.
11.
Licensee 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 Agreement in the
real property records of the county in which the Encroachment is located. After being
recorded, the original shall be returned to the City Secretary of the City of Fort Worth.
12.
Licensee agrees to comply fully with all applicable federal, state, and local laws,
statutes, ordinances, codes, and regulations in connection with the construction, operation,
and maintenance of the Encroachment and use of the Public Property.
13.
Licensee 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.
14.
Licensee 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 Licensee 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 Licensee, its officers, agents, servants, employees,
contractors, and subcontractors, and nothing herein shall be construed as creating a
partnership or joint enterprise between City and Licensee.
15.
Licensee agrees and acknowledges that this Agreement is solely for the purpose of
permitting Licensee to construct, maintain,and locate the Encroachment over or within the
Public Property and is not a conveyance of any right, title, or interest in or to the Public
Property, nor is it meant to convey any right to use or occupy property in which a third-
Tier III Easement Encroachment Agreement
Page 5 of 14
PN21-00041 Revised 11/2020
party may have an interest. Licensee agrees that it will obtain all necessary permissions
before occupying such property.
16.
In any action brought by the City for the enforcement of the obligations of the
Licensee, City shall be entitled to recover interest and reasonable attorneys' fees.
17.
The parties agree that the duties and obligations contained in Section 5 shall survive
the termination of this Agreement.
18.
Licensee covenants and agrees that it will not assign all or any of its rights,
privileges, or duties under this Agreement without the written approval of the City, and
any attempted assignment without such written approval shall be void. In the event
Licensee conveys the Property, Licensee may assign all of its rights and obligations under
this Agreement to the new owner of the Property, and Licensee shall be deemed released
from its duties and obligations hereunder upon City's approval in writing of such
assignment, which approval shall not be unreasonably conditioned or withheld.
Foreclosure by a secured lender of Licensee or assignment to a secured lender by Licensee
in the event of default or otherwise shall not require City approval provided that said lender
notifies City in writing within sixty (60) days of such foreclosure or assignment and
assumes all of Licensee's rights and obligations hereunder. However, no change of
ownership due to foreclosure or assignment to any secured lender of Licensee shall be
effective as to City unless and until written notice of such foreclosure or assignment is
provided to City.
19.
Any cause of action f'or breach of this Agreement shall be brought in Tarrant
County, Texas. This Agreement shall be governed by the laws of the State of Texas.
20.
This Agreement shall be binding upon the parties hereto and their successors and
assigns.
21.
This Agreement may be executed in multiple counterparts, each of which shall be
considered an original,but all of which shall constitute one instrument
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Tier III Easement Encroachment Agreement
Page 6 of 14
PN21-00041 Revised 11/2020
City: Licensee:
CITY OF FORT WORTH BOWIE PLACE PROPERTIES, LLC
By:DJ Harrell(Aug 16,202109:20 CDT) By: EE REALTY, INC., its managing
member
D.J. Harrell, Director of the Name: Earl R. Fonvi�llee
Development Services Department Title: V'ce Presi a�r►t
Date: Aug 16,2021 c
Date:
��► 00
�
.F.....
0
Oa o=o 0aDdd
Approved As To Form and Legality
oATTEST: o Acting City Secretary Thomas Royce Hansen
Assistant City Attorney
Ordinance No. 24161-04-2020
M&C 21-0267
April 13, 2021
Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all performance
and reporting requirements.
Eveylvn rZaberts on hehal 11-12 CDT)
Janie S. Morales
Development Services
OFFICIAL RECORD
Tier III Easement Encroachment Agreement CITY SECRETARY
PN21-00041 FT. WORTH, TX
i aso a,no
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 D.J. Harrell, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he 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 16th day of
August , 20 21
Jennifer L. Digitally signed by Jennifer L. aYP� JENNIFER L. EZERNACK
Ezernack 2o�P s� Notary Public
Date:2021.08.16 11:46:56 • • STATE OF TEXAS
Ezernack _05'00' Notary I.D. 130561630
Notary Public in and for the State of Texas My Comm. Exp. Mar. 1,2024
After recording return to:
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
OFFICIAL RECORD
Tier III Easement Encroachment Agreement CITY SECRETARY
PN21-00041 FT. WORTH, TX
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
on this day personally appeared Earl R. Fonville, Vice President of EE
REALTY, INC., managing member of Bowie Place Properties, LLC, known to me to be
the person whose name is subscribed to the foregoing instrument,and acknowledged to me
that he or she executed the same for the purposes and consideration therein expressed, as
the act and deed of Bowie Place Properties, LLC, a limited liability company, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ^ day of
� q , 2021.
a an_ , C - O*K
KATHLEEN A RIDDICK
NotaryID#8351133
Notary Public in and for the My Commission Expires
ApH112,2022
State of
OFFICIAL RECORD
Tier III Easement Encroachment Agreement CITY SECRETARY
PN21-00041 FT. WORTH, TX
EXHIBIT A
Description of the Licensee's Property
LOT 16R, BLOCK 1, MATTISONS ADDITION TO HI-MOUNT,
AN ADDITION TO THE CITY OF FORT`'NORTH, TARRANT
COUNTY, TEXAS
Tier III Easement Encroachment Agreement
Page 10 of 14
PN21-00041 Revised 11/2020
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OWNED/DEVELOPED BY:
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550 Bailey Avenue•Suite 400•Fort Worth,Texas 76107 PHONE:817-339-3384
Tel:817.335.1121
(TXREG.F-1114J CONTACT:EARL FONVILLE
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Depiction of the Public Property
Tier III Easement Encroachment Agreement
Page 11 of 14
PN21-00041 Revised 11/2020
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Depiction and description of the Encroachment
Tier III Easement Encroachment Agreement
Page 12 of 14
PN2I-00041 Revised 11/2020
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c TeUX 8�G.F-11141 BOWIE HOUSE HOTEL & TOWNHOMES
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MATTISONS ADDITION TO HI MOUNT 1,770 SF OF PROPOSED
VOLUME 310, PAGE 47
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C3 550 Baaey Avenue.5Lfde 400.Fort worth,Texas 76107 ENCROACHMENT AGREEMENT
Tel:9".=.114'o (TX REG F 11141 BOWIE HOUSE HOTEL & TOWNHOMES
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EXHIBIT D
Franchise Letters
Tier III Easement Encroachment Agreement
Page 13 of 14
PN21-00041 Revised 11/2020
TM OS
energy
May 3, 2021
Jonathan Russell
Dunaway Associates
Fort Worth, Texas
Atmos Energy has no objection to the encroachment on the utility easement
at Lot 16-R Block 1 Mattison Addition to Hi Mount by an underground
parking garage, temporary retention system, and a retaining wall.
If you have any questions, please contact me at 817-207-2838.
i
Sincerely,
Bobby Oney
Project Manager
Atmos Energy Corporation
100 West Momingside
Port Worth,Texns 76110
AT&T
AT&T Right-of-Way
13945 FAA Blvd.
Fort Worth,TX 76155
May 4,2021
Jonathan D.Russell,P.E.
Dunaway Associates
550 Bailey Avenue,Suite 400
Fort Worth,TX 76107
Re: Encroachment of a Utility Easement—Bowie House Hotel&Townhomes
3716 Camp Bowie Boulevard,Fort Worth,Texas
Lot 16R,Block 1-Mattisons Addition to Hi Mount—D219121248—Tarrant County
Mr.Russell,
Southwestern Bell Telephone Company,d/b/a AT&T Texas,has no objections to the construction of a
proposed underground parking garage structure,a proposed temporary retention system,and a retaining
wall that will encroach into the existing utility easement on the property referenced above at 3716 Camp
Bowie Boulevard.
It is not the intent of this letter to waive any rights granted to AT&T in said platted utility easements or right-
of-way except to permit this encroachment. AT&T shall continue to have unrestricted access to,on and
across the easement/right-of-way for installation,repairs,replacement,or upgrades to facilities.
There could be overhead and/or underground facilities within the area. Exercise extreme caution with
respect to such facilities. Contact Texas811 for underground locates before any digging is done. Costs of any
damages to facilities would be at your expense.
Please let me know if you have any questions or concerns.
Sincerely, f
Ray A.Wariia
AT&T—Manager OSP Planning&Engineering Design I Right-of-Way
Phone:817-550-7576
ray.garcia@att.com
Spectrum
5/12/2021
Jonathan D. Russell
Dunaway Associates
SUBJECT: Encroachment of 15' Utility Easement, Fort Worth,TX.
Spectrum Communications hereby grants a 2' encroachment for the purpose of building an underground
parking garage, structural retention systems for parking garage, and a retaining wall into a portion of the
General Utility Easement associated with the property located along the East Side of Stanley Ave,within
the City of Fort Worth,Texas 76107. Spectrum Communications reserves the right to have access to any
applicable utility easements on the property for the purpose of future construction or maintenance. The
owner and/or lessee of said property may also be responsible for the relocation/removal of any structure
interfering with access to these easements, if necessary.
Spectrum Communications currently has facilities within this easement.If it has not already taken place,
please call 1-800-DIG-TESS to have facilities marked and located within affected easements before any
excavations are started.
For future reference, please send all utility coordination,abandonments,encroachments, plat
signatures,or serviceability requests, or notices of relocation to west-engineering-relo@Spectrum.com.
Please share this information with whoever needs these services.
Sincerely,
Kimberly Ponsonby
Business Development Specialist
ONC R
Date: May 12, 2021
Customer name: Earl R. Fonville, Vice President, Bowie Place Properties, LLC
Address: PO Box 218
City/ State/Zip: Addison, TX 75001
Re: Lot 16R, Block 1 MATTISONS ADDITION TO HI-MOUNT an Addition to the City of
Fort Worth, Texas
Dear Mr. Fonville,
I have received your request for a Letter of Consent for a proposed underground parking
garage structure, temporary retention system and a retaining wall, all of which will
encroach 2 feet into the 15-ft wide public alley (which is in the process of vacation and to
be retained as a utility easement.) The underground parking garage which serves the
Bowie House Hotel.
Although, Oncor does facilities located within the above mentioned easement, the
requested encroachment will NOT impact future operations of Oncor facilities located in
the alley way aforementioned. It is not the intent of this letter to waive any rights granted
to Oncor in said easement except to consent to this encroachment set out hereinabove.
Oncor shall continue to have unrestricted access to, on and across the easement. It is
understood by owner, that when the electrical facilities in the easement area need
repaired, replaced or upgraded, it will be owner's responsibility to remove any
obstruction that interferes with Oncor's ability to perform the necessary work. Oncor
maintains the right to utilize the entire easement for its needs, and will not be
responsible for any damages.
Owner acknowledges and understands that Oncor maintains overhead and/or
underground electrical facilities within the easement. State law requires contacting Dig
Tess by calling 811 for underground equipment to be located at least two (2) days before
you dig. Dig Tess does not mark a precise location but is usually within four (4) feet of
the actual location. Owner agrees to exercise extreme caution with respect to such
electrical facilities.
If you have any questions or need additional information, please contact the Oncor office
at (817) 443-3434.
Si aru . Rodgers,
SR/WA
Senior Right of Way Agent, Distribution Services
Oncor Electric Delivery Company, LLC
EXHIBIT E
Certificate of Insurance
Tier III Easement Encroachment Agreement
Page 14 of 14
PN21-00041 Revised 11/2020
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 04/13/21 M&C FILE NUMBER: M&C 21-0267
LOG NAME: 06BOWIE HOUSE HOTEL&TOWNHOMES UNDERGROUND STRUCTURE
SUBJECT
(CD 7)Authorize Execution of an Encroachment Agreement with Bowie Place Properties, LLC for the Construction of an Underground Parking
Garage to be Located Beneath a Sanitary Sewer Easement and Utility Easement Located at 3736 Camp Bowie Boulevard
RECOMMENDATION:
It is recommended that the City Council authorize the execution of an Encroachment Agreement with Bowie Place Properties, LLC for the
construction of an underground parking garage to be located beneath an existing sanitary sewer easement and utility easement located at 3736
Camp Bowie Boulevard.
DISCUSSION:
Bowie Place Properties, LLC has requested an Encroachment Agreement to allow for the construction of an underground parking garage to be
located beneath an existing sanitary sewer easement and utility easement located at 3736 Camp Bowie Boulevard. The purpose of this proposed
underground parking garage is to provide parking for a future hotel and townhomes.
The Encroachment Committee,consisting of staff from the Transportation and Public Works Department,the Water Department, and the
Development Services Department reviewed and approved the encroachment request.The application fee for the Encroachment Agreement will
be$575.00.The Agreement will have a 30-year term with automatic renewals if none of the conditions change.The application fee for the
agreement has been paid.The property is located in Council District 7.
The property is located in COUNCIL DISTRICT 7.
FISCAL INFORMATION /CERTIFICATION:
The Director of Finance certifies that approval of this recommendation will have no material effect on City funds.
Submitted for City Manager's Office by: Dana Burghdoff 8018
Originating Business Unit Head: D.J. Harrell 8032
Additional Information Contact: Laurie Lewis 2600
Janie Morales 7810