HomeMy WebLinkAboutContract 53629 CITY SECRETARY
CONTRACT NO._� a
EASEMENT ENCROACHMENT LICENSE AGREEMENT
Commercial
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
Development Services Director, and MEMO HOSPITALITY GROUP, LLC, a
Limited Liability Company ("Licensee"), owner of the real property located at 3621
Byers Ave., Fort Worth, TX 76107("Property").
RECITALS
WHEREAS, Licensee is the owner of certain real property situated in the City of
Fort Worth, Tarrant County, Texas, more particularly described in the attached Legal
Description of the Property, attached as "Exhibit C" and incorporated herein for all
purposes; and
WHEREAS, the City has a public right of way easement (the "Easement") in
the Property as shown on the map attached to this Agreement as "Exhibit A," which is
incorporated herein for all purposes; and
WHEREAS, Licensee desires to construct, place, and/or maintain certain
improvements which will encroach in, on, above, or below the City's Easement; 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 the 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 Easement as described in and at the location shown on
Exhibit A", but only to the extent shown thereon, for the purpose of parking and
retaining walls (the "Encroachment"). Upon completion of the Encroachment,
Licensee agrees to be responsible for maintaining the Encroachment within the Easement.
Licensee shall not expand or otherwise cause the Encroachment to further infringe in or
on City's Easement beyond what is specifically described in the exhibit(s) attached
hereto.
OFFICIAL REC.OV�
CITY SECRETARY
Easement Encroachment Agreement-Commercial FT. "P29�dY'�2
7
2.
All construction, maintenance, or operation in connection with such
Encroachment, use, and occupancy shall comply and be performed in strict compliance
with this Agreement and with the Charter, Ordinances, and Codes of the City, and in
accordance with the directions of the Director of the Transportation and Public Works
Department or the Director of the Water Department, or their duly .authorized
representative. Prior to the construction of the Encroachment, Licensee shall submit all
plans and specifications to the applicable Director or duly authorized representative.
Licensee shall not commence construction of the Encroachment until such approval shall
be indicated in writing by the applicable Director or authorized representative. However,
such approval shall not relieve Licensee of responsibility and liability for concept, design,
and computation in the preparation of such plans and specifications.
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, use, and occupancy, including securing the approval and consent of the
appropriate utility companies and 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 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, Licensee shall pay to the City an additional amount equal to
such additional cost as reasonably determined by the Director of Transportation and
Public Works or the Director of the Water Department, or their duly authorized
representative.
4.
Licensee agrees that the City may enter and utilize the referenced areas at any time
for the purpose of installing, repairing, replacing, or maintaining improvements to its
public facilities or utilities necessary for the health, safety, and welfare of the public, or
for any other public purpose. The City shall bear no responsibility or liability for any
damage or disruption or other adverse consequences resulting from the Encroachment
installed by Licensee, but the City will 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 Easement to a condition
acceptable to the Director of Transportation and Public Works or the Director of the
Water Department, or their duly authorized representative, in accordance with then-
existing City specifications. It is understood and agreed to by Licensee that if this
Easement Encroachment Agreement-Commercial Page 2 of 12
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Agreement terminates and Licensee fails to remove the Encroachment as directed and
restore the Easement, Licensee hereby gives the City permission to remove the
Encroachment and any supporting structures and 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 encroachments and uses provided for by this Agreement, Licensee
agrees to pay to City at the time this Agreement is requested an application fee of in the
sum of Five Hundred Dollars ($500.00).
7.
The term of this Agreement shall be for thirty (30) years, commencing on the
date this Agreement is executed by the City. However, this Agreement may be
terminated upon Licensee's noncompliance with any of the terms of this Agreement. City
shall notify Licensee in writing of any noncompliance and if not cured within thirty (30)
days, this Agreement shall be deemed terminated, unless such noncompliance is not
susceptible to cure within thirty (30) days, in which case this Agreement shall be deemed
terminated in the event that Licensee fails to commence and take such reasonable steps as
are necessary to remedy the noncompliance within thirty (30) days after written notice
specifying the same, or having so commenced, thereafter fails to proceed diligently and
with continuity to remedy same.
8.
It is further understood and agreed between the parties hereto that the Easement to
be used and encroached upon is held by City as trustee for the public; that City exercises
such powers over the Easement as have been delegated to it by the Constitution of the
State of Texas or by the Texas Legislature; and that City cannot contract away its duty
and its legislative power to control the Easement 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 Easement to be used
for any other public purpose that does not preclude the use of the Encroachment on the
Property, 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 the Encroachment and the public
purpose.
9.
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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 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 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
$1,0009000
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 Official of the City. A copy of such Certificate of Insurance is attached as
"Exhibit B" and incorporated herein for all purposes. Licensee agrees to submit a similar
Certificate of Insurance annually to the City on the anniversary date of the execution of
this Agreement.
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 the cleaning and
restoration of the Easement. All insurance coverage required herein shall include
coverage of all Licensee's contractors and subcontractors.
Easement Encroachment Agreement-Commercial Page 4 of 12
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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 Tarrant County, Texas. 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 uses.
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 Easement and is not a conveyance of any right, title, or interest in or to the Easement,
nor is it meant to convey any right to use or occupy property in which a third-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, the City shall be entitled to recover interest and reasonable attorneys' fees.
Easement Encroachment Agreement-Commercial Page 5 of 12
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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 for 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]
Easement Encroachment Agreement-Commercial Page 6 of 12
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City: Licensee:
CITY OF FORT WORTH MEMO HOSPITALITY GROUP, LLC
By: �_� � By: _ /VL4L---'
DJ Harrell, Interim Director Name: Allen Mederos
Development Services Department Title: Owner
Date: /-z-e) Date: 3/2/3030
By:
Name:
Title:
Date:
''FORr
A. ; '•a�
ATTEST: = "''� °Approved As To Form and Legality
��'XA�
ity Secretary Matthew A. Murray
Assistant City Attorney
Contract Compliance NlavfAA
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this c tract 'ncludi Id
nsuring 11 performance
porti requirements.
Dx
Contract Compliance Ap &
E
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Easement Encroachment Agreement-CommercialPapa 7-of 12 j
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PAGE FOR CITY OF FORT WORTH OFFICE USE ONLY"*
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 thi4fl/)day of
TO I �� , 20,;t.
Awi"u11J) C
N�jary Publi in and or tIQ State of Texas
�u '9
``ao�Pgva�fii�� JENNIFER l.OUISE EZERNACK
'-Notary Public,State of Texas
s' Q= Comm. Expires 03-01-2024
After recording return to:
�.���o���`�-a�` Notary ID 130561630
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth, Texas 76102
OFFICIAL RECORD
CITY SECRETARY
FT: WORTH, TX
Easement Encroachment Agreement-Commercial Page 8 of 12
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STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
/ NO , on this day personally appeared Allen Mederos, Owner (Title) 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 MEMO HOSPITALITY GROUP, a LLC
(entity type), and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
20 AjTV%
nil 411111
NOTARY Pub ICA
ID#13019W7
•, Com .04.17.2023 Stale of Texas
Notary Pu lic in and for the
State of
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX
Easement Encroachment Agreement-Commercial Page 9 of 12
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EXHIBIT A
Map of Easement and Encroachment
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Easement Encroachment Agreement-Commercial Page 10 of 14
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EXHIBIT A
Map of Easement and Encroachment
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Easement Encroachment Agreement-Commercial Page 11 of 14
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EXHIBIT B
Certificate of Insurance
Al.R® DATE(MMODIYYYY)
CERTIFICATE OF LIABILITY INSURANCE 03/0212020
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on
this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
PRODUCER NAME Phil Davis
:
Phil Davis-Integra Insurance Services �817.666.5252
262 Carroll St.Suite 27 ADDRESS: phi('aphildavisintegra.corn
INSURER(S)AFFORDING COVERAGE NAIC A
Fon Worth TX 76107 INSURER A: NAUITLUS INSURANCE COMPANY
INSURED INSURER B:
Allen Mederos/Me.VD Hospitality Group LLC INSURER C:
3108 W 5TH ST.Suite 250 INSURER D'
INSURER E:
FOR"f WORTH TX 76107 INSURER F:
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
LTR TYPE OF INSURANCE INSD WVD POLICY NUMBER (MMIDDIYYYY) (MMIDDIVYYV) LIMITS
x COMMERCIALGENERALLIABILITY EACHCCCLRRENCE $ 1,000.000
CLAMS-MADE OCCUR PREMISES(Ea occurtence) $ 100,0IX1
MED IECP(Any one perm) S 5010
A NN1017101 120412019 1204i2O20 PERSONAL a ADV INJURI 4 EXCLUDED
GEN'L AGGREGATE L.MI-APPLIES PER GENERAL AGGREGATE $ 2,000,000
POUGy IRO- ❑
EGT LOC PRODUCTS-COMP,'OP AGG $ EXCLUDED
OTHER $
AUTOMOBILE LIABILRY (Ea aaitlentl $
ANY ALTO BODILY INJURY(Per person) $
CVVNFD SCHEDLLED
AUTOSONLY AUTOS BODILY INJURY(Per atzben) 4
HIRED NON-OWNED $
AUTOS ONLY AUTOS ON'_Y (Per acadentl
$
UMBRELLA LIAR OCCUR EACH OCC.RRENCE S
EXCESS LIAR CLAIMS MADE AGGREGATE $
DEC I I RETENT',ON $
ORKERS COMPENSATION
ND EMPLOYERS'LIABILITY YIN STATUTE ER
AN PROPRIETOR/PARTNER/EXECUTIVE❑ NIA EL EACH ACCIDENT $
OFFICER/MEMBER EXCLUDED'
Mandatory In NH) E'_DISEASE EA EMPLOYEE$
f yes desc ribe�naer
DESCRIP'ION DF OPERATDNS belaa E DISEASE-POLICY'LIMIT $
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES(ACORD 101,Adda—1 Remarks Schedule,may be attached if more space is required)
3619 BYERS AVE,FORT WORTH,TX 76107
3621 BYERS AVE,FORT W'OR'IH,TX 76107
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
CITY OF FORT W'ORTIi THE EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN
PLAN-NING&DEVELOPMENT-CFA OFFICE ACCORDANCE WITH THE POLICY PROVISIONS.
PN20-00016 AUTHORIZED REPRESENTATIVE
200"TEXAS ST PkIL P&"k
FORT WORTH TX 76102
1988-2015 ACORD CORPORATION. All rights reserved.
ACORD 25(2016103) The ACORD name and logo are registered marks of ACORD
Easement Encroachment Agreement-Commercial Page 12 of 14
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EXHIBIT C
Metes and Bounds or Location Description of the Property
DESCRIPTION OF RIGHT-OF-WAY ENCROACHMENfi PARCELS
PARCELI
SITUATED in the City of Fort Worth,Tarrant County,Texas,and being a portion of BYERS AVENUE(96.7 feet
wide at this point)adjacent to LOT 8.BLOCK 15,QUEENSBOROUGH,Second Filing,as shown on plat thereof
recorded in Volume 310, Page 31, of the Tarrant County Plat Records, and said portion being more fully
described as follows.
BEGINNING at the northwest corner of said Lot 8,said point being also the northwest corner of said Block 15,at
the point of intersection of the south line of said Byers Avenue with the east line of Margaret Street 50 foot wide
right-of-way:
THENCE North 0 degrees, 15 minutes, 30 seconds West,extending said east line of Margaret Street into said
Byers Avenue,9.67 feet;
THENCE North 89 degrees.44 minutes.30 seconds East and parallel with said south line of Byers Avenue and
north line of Block 15,18.67 feet:
THENCE South 0 degrees, 15 minutes.30 seconds East and parallel with said east line of Margaret Street,9.67
feet to a point in said south line of Byers Avenue and north line of said Block 15 and said Lot 8;
THENCE South 89 degrees,44 minutes,30 seconds West with said south line of Byers Avenue and said north
line of Lot 8 and Block 15, 18.67 feet to the PLACE OF BEGINNING, and containing 181 square feet(0.004
acre).
PARCEL2
SITUATED in the City of Fort Worth,Tarrant County, Texas,and being a portion of BYERS AVENUE(96.7 feet
wide at this point)adjacent to LOT 8 and 9, BLOCK 15,QUEENSBOROUGH,Second Filing,as shown on plat
thereof recorded in Volume 310, Page 31,of the Tarrant County Plat Records,and said portion being more fully
described as follows.
BEGINNING at the common north corner of said Lots 8 and 9,in the north line of said Block 15 and the south
line of said Byers Avenue,
THENCE South 89 degrees,44 minutes,30 seconds West with the north line of said Lot 8 and Block 15, 7.33
feet;
THENCE North into said Byers Avenue,5.01 feet;
THENCE North 89 degrees,44 minutes,30 seconds East and parallel with said south line of Byers Avenue and
north line of Block 15, 18.33 feet:
THENCE South 5.01 feet to a point in said south line of Byers Avenue and north line of said Block 15;
THENCE South 89 degrees,44 minutes, 30 seconds West with said south line of Byers Avenue and the north
line of Lot 9 and Block 15.11.0 feet to the PLACE OF BEGINNING,and containing 92 square feet(0.002 acre).
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EXHIBIT C
Metes and Bounds or Location Description of the Property
DESCRIPTION OF RIGHT-OF-WAY ENCROACHMENT PARCELS
PARCEL3
SITUATED in the City of Fort Worth,Tarrant County,Texas,and being a portion of BYERS AVENUE(96.7 feet j
wide at this point)adjacent to LOTS 9 and 10, BLOCK 15, QUEENSBOROUGH, Second Filing, as shown on II
plat thereof recorded in Volume 310,Page 31,of the Tarrant County Plat Records,and said portion being more
fully described as follows:
BEGINNING at the common north corner of said Lots 9 and 10,in the north line of said Block 15, in the south
line of said Byers Avenue;
THENCE South 89 degrees,44 minutes,30 seconds West with said north line of Block 15 and north line of said
Lot 9,34.0 feet;
THENCE North 0 degrees,15 minutes,30 seconds West into said Byers Avenue,9.0 feet;
THENCE North 89 degrees,44 minutes,30 seconds East and parallel with said north line of Block 15 and south
line of Byers Avenue,79.0 feet,
THENCE South 0 degrees, 15 minutes, 30 second East,9.0 feet to a point in said north line of Block 15 and
south line of Byers Avenue;
THENCE South 89 degrees,44 minutes,30 seconds West with said south tine of Byers Avenue and north line of
Block 15 and said Lot 10,45.0 feet to the PLACE OF BEGINNING,and containing 711 square feet(0.016 acre)
�4v;
rAd�
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