HomeMy WebLinkAboutContract 57509 City Secretary Contract # _ 57509____
LOCATION USE AGREEMENT FOR 2408 AND 2410 PROSPECT AVENUE
BETWEEN THE CITY OF FORT WORTH AND JAROD O'FLAHERTY
This LOCATION USE AGREEMENT ("Agreement") is made and entered into by
and between the CITY OF FORT WORTH, a home-rule municipal corporation of the State
of Texas ("Ciq ),and JAROD O'FLAHERTY,an individual("Producer"). City and Producer
are collectively referred to herein as the "Parties."
WHEREAS, Producer is seeking permission from the City to enter upon a City of Fort
Worth parking lot located at 2408 and 2410 Prospect Avenue,Fort Worth,Texas 76164 for the
purpose of filming the television production entitled `Vindication"(the "Project"); and
WHEREAS, the City has determined that it will make its parking lot available to the
Producer in accordance with the terms of this Agreement.
NOW, THEREFORE, City and Producer for and in consideration of the covenants
and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as
follows:
1. PREMISES
1.1 For the Term specified in Section 2 below,and any extensions thereof, City hereby
grants to Producer, its affiliates, successors, assigns, licensees, employees, representatives,
independent contractors, and suppliers (all of whom shall be included in the term "Producer")
the non-exclusive right to enter upon, in, and around 2408 and 2410 Prospect Avenue, Fort
Worth, Texas 76164 ("Premises") for the purposes of fihning and utilizing the parking lot in
connection with the Project and in accordance with the terms of this Agreement.
1.2 The use of the Premises granted to Producer by City includes the exterior of the
Premises only. Producer shall not in any manner state or imply that Producer's photographs,
videos,or business is supported or sponsored by the City.
2. TERM AND TERMINATION
2.1 Term. This Agreement shall be effective from April 27, 2022 to April
28, 2022 ("Term"), unless terminated earlier pursuant to the terms of this Agreement.
OFFICIAL RECORD
CITY SECRETARY
Location Use Agreement—2408/2410 Prospect Avenue and Jarod OTIaherty FT. WORTH, TX
2.2 Termination. It is expressly provided that City and Producer shall have the right to
terminate this Agreement with or without cause upon one (1) day's written notice. In the event
that Producer fails to comply with any of the terms and conditions of this Agreement, City shall
have the right, without notice, to declare the Agreement immediately terminated.
3. CONSIDERATION
3.1 Nothing herein shall constitute an obligation of City funds. Neither party shall
owe any amount of money for any reason whatsoever to the other party for services
rendered in connection with this Agreement. City shall not be liable nor owe any payment,
fee, cost,penalty, or money for any other reason whatsoever to Producer. City and Producer
expressly agree and stipulate that this Agreement is based on valuable consideration and an
exchange of promises that will be independently beneficial to both parties. City agrees that
the Producer will provide a benefit to City by giving production credit to the City of Fort
Worth, including the City of Fort Worth logo, as well as marketing via social media and
other media outlets.
4. CONDITION, PROTECTION,AND
RESTORATION OF PREMISES
4.1 Producer hereby acknowledges that (a) it accepts the Premises in its present
condition, and (b) City has made no representations to it regarding the safeness thereof
or suitability for any particular purposes.
4.2 Producer covenants and agrees that it shall take the Premises as it finds them and
Producer shall restore and yield said Premises, equipment, and all other properties belonging to
the City back to the City at the expiration of this Agreement in the same condition as existed at
the commencement of this Agreement and in which Producer found them, reasonable wear and
tear excepted. Producer will pay the costs of repairing(to its condition immediately preceding the
occurrence of such damage,reasonable wear and tear excepted) any damage that may be done to
the Premises or the natural environment by any act of Producer or anyone visiting the Premises
upon the invitation of Producer, excluding any such damage arising out of the negligence or
misconduct of the City, its employees, agents, or contractors. The City shall, in its reasonable
discretion, determine whether any damage has been done, the amount of the damage, the
reasonable costs of repairing the damage, and whether, under the terms of the Agreement,
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Flaherty
Producer is responsible. City shall reasonably judge the quality of the maintenance and damage
of the Premises, fixtures, structures, or the natural environment by the Producer. Producer shall
remove from the Premises all equipment and temporary sets and other materials placed thereon
by Producer. If there is a dispute as to whether Producer has repaired any damages to the
Premises caused by Producer, City must first deliver to Producer a reasonably detailed list of
those items that have not been repaired and provide Producer with a reasonable opportunity to
inspect the Premises,but in no case less than seven (7) days after delivery of the list,to determine
the need for further repairs, if any.
5. RIGHTS TO IMAGES AND PROJECT
5.1 Producer shall be and remain the sole owner of all images and films.Producer shall
own all rights of every kind in and to the Project except as those rights may be restricted by this
Agreement or by law. Producer may reproduce, exhibit, and otherwise exploit such images or
other depictions made on or about the Premises in connection with the Project (including,
without limitation, in-context film clips for advertising and promotion) in any manner or media
whatsoever (whether known or hereafter devised), in whole or in part, throughout the world in
perpetuity except as those rights may be restricted by this Agreement or by law; provided,
however, that Producer represents and agrees that the Project featuring the Premises will not in
any way disparage the City of Fort Worth or depict the City of Fort Worth or its facilities and
Premises in a manner that is, or that may claim to be, defamatory, untrue, or censorable in
nature, or bring harm to the heritage and history of Fort Worth or be used in any other
manner deemed inappropriate as determined in the reasonable sole discretion of the Fort
Worth City Manager or designee.
6. THIRD-PARTY RELEASE AND INDEMNIFICATION
6.1 Third-Party Release.Producer acknowledges that City lacks legal authority to grant
permission for the use of the names or likenesses of individuals who might appear in the Project.
Producer shall be solely and exclusively responsible and liable with respect to obtaining any
filming and photography releases required with respect to persons and third-party property
located on the Premises.At a minimum,Producer shall provide and post signage in the immediate
vicinity of its filming locations at the Premises notifying members of the public that
photographing and/or videotaping is being conducted.
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Flaherty
PRODUCER AGREES TO RELEASE, INDEMNIFY, AND HOLD
HARMLESS THE CITY FROM AND AGAINST ANY THIRD-PARTY
CLAIM RELATING TO THE UNAUTHORIZED USE, FILMING,
TAPING, RECORDING, OR PHOTOGRAPHING OF ANY
INDIVIDUAL OR THIRD-PARTY PROPERTY.
7. INDEMNIFICATION. PRODUCER AGREES TO AND DOES HEREBY
DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY, AND ITS
OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES FROM
AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS
AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO,
THOSE FOR PROPERTY DAMAGE OR LOSS, AND PERSONAL INJURY,
INCLUDING, BUT NOT LIMITED TO, DEATH, THAT MAY RELATE
TO, ARISE OUT OF OR BE OCCASIONED BY (i) PRODUCER'S USE OF
THE PREMISES, (ii) PRODUCER'S BREACH OF ANY OF THE TERMS
OR PROVISIONS OF THIS AGREEMENT, OR (iii) ANY ACT OR
OMISSION OF PRODUCER OR ITS OFFICERS, AGENTS,
REPRESENTATIVES, EMPLOYEES, CONTRACTORS, AND
SUBCONTRACTORS, RELATED TO THIS AGREEMENT OR THE
PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT,
WHETHER OR NOT CAUSED, IN PART, BY THE NEGLIGENCE OF
THE OFFICERS, AGENTS, REPRESENTATIVES, OR EMPLOYEES OF
THE CITY; PROVIDED HOWEVER, THAT THE PRODUCER SHALL
HAVE NO LIABILITY OR OBLIGATION TO INDEMNIFY, HOLD
HARMLESS OR DEFEND WITH RESPECT TO ANY INJURY OR
DAMAGE TO PERSONS OR PROPERTY RESULTING FROM THE
GROSS NEGLIGENCE OF OFFICERS, AGENTS OR EMPLOYEES OF
THE CITY.
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Flaherty
8. INSURANCE
8.1 Producer certifies that it has, at a minimum, current insurance coverage as detailed
below and will maintain it throughout the Term of this Agreement. Prior to entering the
Premises,the Producer shall deliver to the City,certificates documenting this coverage.The City
may elect to have the Producer submit its entire policy for inspection.
8.2 Producer shall have, at a minimum, current insurance coverage as detailed below
and will maintain it throughout the Term. Prior to entering the Premises,Producer shall deliver
to the City executed certificates of insurance or certified copies of policies as determined by City.
1) Commercial General Liability Insurance, including Personal Injury
Liability, Independent Contractors Liability and Contractual Liability
covering,but not limited to,the liability assumed under the indemnification
provisions of this Agreement, with limits of liability for bodily injury
(including, but not limited to, death) and property damage of not less than
One Million Dollars ($1,000,000), with an aggregate of not less than Two
Million Dollars ($2,000,000). All insurance policies shall include the
following:
2) Automobile Liability Insurance, which shall provide coverage on any
automobile, including and defined as automobiles owned, hired and non-
owned with a One Million Dollar ($1,000,000) combined single limit per
accident or $250,000 Property Damage and $500,000 Bodily Injury per
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person,per occurrence.
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3) The term of insurance is for the Term,which includes the period from
the right of access to set up through the period allowed for removal of
property;
4) The contractor is responsible for providing the City a twenty (20) day
notice of cancellation or non-renewal of any insurance policy and may not
change the terms and conditions of any policy that would limit the scope
or coverage, or otherwise alter or disallow coverage as required herein;
5) All policies shall include a Waiver of Subrogation (Right of Recovery)
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Haherty
in favor of the City of Fort Worth;
6) Any deductible in excess of $5,000.00, for any policy that does not
provide coverage on a first-dollar basis, must be approved by City of Fort
Worth Risk Management.
7) Any self-insured retention (SIR) in excess of $25,000.00, affecting
required insurance coverage,shall be acceptable to and approved by City
of Fort Worth Risk Management in regards to asset value and
stockholders' equity. In lieu of traditional insurance, alternative
coverage maintained through insurance pools or risk retention groups,
must also be approved by Risk Management.
8) Company issuing the insurance policy shall have no recourse against
the City of Fort Worth for payment of any premiums or assessments for
any deductibles which all are at the sole risk of Producer;
9) The terms "Owner", "City" or City of Fort Worth shall include all
authorities, Boards, Bureaus, Commissions, Divisions, Departments, and
Offices of the City and the individual members, employees and agents
thereof in their official capacities and/or while acting on behalf of the City
of Fort Worth.;
10) The policy clause "Other Insurance" shall not apply to any insurance
coverage currently held by City, to any future coverage, or to City's self-
insured retention of whatever nature.
11) The City,its officials, employees,agents and officers shall be endorsed
as an "Additional Insured" to all policies except Employers Liability cove
rage.
12) Coverage shall be written on a per occurrence basis and the policy shall
include Broad Form Property Damage Coverage with an insurance
company satisfactory to City. If insurance policies are not written for
specified coverage limits,an Umbrella or Excess Liability insurance for any
differences is required when required,Excess Liability shall follow form of
q q Y
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Haherty
the primary coverage.
13) All policies shall be written by an insurer with an "A++" or better
rating by the most current version of the A. M. Best Key Rating Guide or
with such other financially sound insurance carriers acceptable to the City.
14) Deductibles shall be listed on the Certificate of Insurance and shall be
on a "per occurrence" basis unless otherwise stipulated herein.
15) If coverage is underwritten on a claims-made basis,the retroactive date
shall be coincident with or prior to the date of the contractual agreement
and the certificate of insurance shall state that the coverage is claims-made
and the retroactive date. The insurance coverage shall be maintained for
the duration of the contractual agreement and for five (5) years following
completion of the service provided under the contractual agreement or for
the warranty period,whichever is longer.An annual certificate of insurance
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submitted to the City shall evidence such insurance coverage.
16) Certificates of Insurance shall be delivered by email to the Fort Worth
Property Management Department, attn.: Nita Shinsky at
Nita.Shinsky@fortworthtexas.gov evidencing all the required coverages,
including endorsements.
8.3 Producer or its contractors shall not do or permit to be done anything in or upon
any portion of the Premises, or bring or keep anything therein or thereupon which will in any
way conflict with the conditions of any insurance policy upon the Premises or any part thereof,
or in any way increase the rate of fire insurance upon the Premises or on property kept therein,
or in any way obstruct or interfere with the right of the other tenants of the Premises, or injure
or annoy them.
8.4 The City may terminate this Agreement immediately upon the failure of the
Producer to provide acceptable documentation of insurance as required by this Agreement.
9. FORCE MAJURE
9.1 C4. If, by reason of Force Majeure as hereinafter defined, the City shall be
rendered wholly or partially unable to carry out its obligations under this Agreement, then the
City shall give written notice of the particulars of such Force 1\/Iajeure to Producer within a
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Flaherty
reasonable time after the occurrence thereof. The obligations of the City, to the extent affected
by such Force Majeure, shall be suspended during the continuance of the inability claimed and
for no longer period, and the City shall in good faith exercise its best efforts to remove and
overcome such inability. Producer hereby waives any claim against City for damages by
reason of any delay due to Force Majeure.
9.3 The term "Force Majeure" as utilized herein shall mean and refer to acts of God;
strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades;
insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or
prohibitions by any court, board, department, commission, or agency of the United States or
of any state; declaration of a state of disaster or emergency by the federal, state, county, or City
government in accordance with applicable law; any arrests and restraints; civil disturbances; or
explosions; or some other similarly disruptive reason beyond the party's reasonable control.
10. INTELLECTUAL PROPERTY
10.1 Producer may not use any designated marks or copyrights of the City of Fort
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Worth or authorize such use on any internet website or on any other on-line site, except as
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specifically approved by the City of Fort Worth or except as may be captured within the
recordings. Producer, its designees, or assignees, shall not have the right or license to
manufacture or cause the production of merchandise items bearing the City's designated marks
or copyright.
10.2 Producer agrees to assume full responsibility for complying with all State and
Federal Intellectual Property Laws and any other regulations, including, but not limited to, the
assumption of any and all responsibilities for paying royalties that are due for the use of other
third-party intellectual property works by Producer. City expressly assumes no obligations,
implied or otherwise, regarding payment or collection of any such fees or financial obligations.
City specifically does not authorize permit, or condone the reproduction or use of any
intellectual property by Producer without the appropriate licenses or permission being secured
by Producer in advance. IT IS FURTHER AGREED THAT PRODUCER
SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS
CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Haherty
DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND
DESCRIPTION, INCLUDING, BUT NOT LIMITED TO,
REASONABLE ATTORNEY'S FEES, TO WHICH THE CITY MAY BE
SUBJECTED ARISING OUT OF OR RELATED TO PRODUCER'S
USE OF ANY THIRD-PARTY INTELLECTUAL PROPERTY BY
REASON OF AN ALLEGED OR ACTUAL INTELLECTUAL
PROPERTY VIOLATION. City expressly assumes no obligation to review or obtain j
appropriate licensing and all such licensing shall be the exclusive obligation of Producer.
11. COMPLIANCE WITH LAWS, ORDINANCES,
RULES,AND REGULATIONS
11.1 Producer covenants and agrees that it shall not engage in any unlawful use of
the Premises. Producer further agrees that it shall not permit its officers, agents, servants,
employees, contractors, subcontractors, patrons, licensees, or invitees to engage in any
unlawful use of the Premises, and Producer immediately shall remove from the Premises
any person engaging in such unlawful activities.Any continued,uncured,unlawful use of the
Premises by Producer, following written notice thereof to Producer,shall constitute a breach j
of this Agreement. Producer agrees to comply with all federal, state, and local laws; all
ordinances,rules, and regulations of City of Fort Worth;all rules and regulations established
by the Fort Worth Fire Department;and all rules and regulations adopted by the Fort Worth
City Council pertaining to the conduct required on the Premises, as such laws, ordinances,
rules,and regulations exist or may hereafter be amended or adopted. If City notifies Producer
or any of its officers, agents, employees, contractors, subcontractors, licensees, or invitees
of any violation of such laws,ordinances,rules,or regulations,Producer shall use best efforts
to bring an end to and correct theviolation.
12. SECURITY
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12.1 Nothing herein shall make the City liable for, or a guarantor of, safety of persons
or property on the subject Premises herein. Producer acknowledges that Producer is not relying
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on the City to provide security services and that the City has made no representations with j
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Flaherty
respect thereto. The Producer shall be solely responsible for all costs and expenses associated
with security systems and personnel employed by Producer to protect the Producer's property,
with any such security arrangements as might affect the Premises being subject to the City's
approval.
13.VENUE AND JURISDICTION
13.1 If any action,whether real or asserted, at law or in equity, arises on the basis of any
provision of this Agreement, venue for such action shall lie in state courts located in Tarrant
County, Texas or the United States District Court for the Northern District of Texas - Fort
Worth Division. This Agreement shall be construed in accordance with the laws of the State of
Texas.
14. NOTICES
14.1 All written notices called for or required by this Agreement shall be addressed to
the following, or such other party or address as either party designates in writing, by certified
mail, postage prepaid, or by hand delivery:
CITY OF FORT WORTH PRODUCER
Property Management Department Jarod O'Flaherty
Attn:Nita Shinsky 13201 Rendon Rd
900 Monroe St. Ste 400 Burleson,TX 76028
Fort Worth,TX 76112
With Copies To:
City Attorney's Office
Attn: Matthew A. Murray
City of Fort Worth
200 Texas Street
Fort Worth,TX 76102
15. RIGHT OF ENTRY
15.1 At all times during the term of this Agreement, City shall have the right, through
its agents and representatives, to enter into and upon the Premises during reasonable hours for
the purpose of examining and inspecting the same for the purpose of determining whether
Producer shall have complied with all of its obligations hereunder in respect to the use of the
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Flaherty
Premises.
16. INDEPENDENT CONTRACTOR
16.1 Producer shall operate hereunder as an independent contractor as to all rights and
privileges herein contained and nothing herein shall be construed as creating a partnership or
joint enterprise between Producer and City.
17. NO WAIVER AND HEADINGS
17.1 The failure to insist upon a strict performance of any of the covenants or
agreements herein set forth or to declare a forfeiture for any violation thereof shall not be
considered or taken as a waiver or relinquishment for the future of City s rights to insist upon a
strict compliance by Producer with all the covenants and conditions.
17.2 The headings in this Agreement are inserted for reference only, and shall not
define or limit the provisions hereof.
18. REVIEW OF COUNSEL
18.1 Each party, and if it so chooses, its attorney has had the opportunity to review
and comment on this document, therefore any rule of contract construction or interpretation
that would normally call for the document to be interpreted as against the drafting party shall
not apply in intelpretation of this Agreement, and each section, portion, and provision of this
Agreement shall be construed solely on the basis of the language contained therein, regardless
of who authored such language.
19. COUNTERPARTS, SEVERABILITY,
AND AMENDMENT
19.1 This Agreement may be executed by the Parties in several counterparts, each of
which shall be deemed to be an original copy.
19.2 In the event any one or more of the provisions contained in this Agreement should
for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality,or unenforceability shall not affect any other provision hereof,and this Agreement shall
be construed as if such invalid, illegal, or unenforceable provision had never been contained j
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herein.
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Flaherty
19.3 No amendment, modification, or alteration of the terms hereof shall be binding
unless the same is in writing, dated subsequent to the date hereof, and duly executed by the
Parties.
20. SIGNATURE AUTHORITY
20.1 The person signing this Agreement hereby warrants that she or he has the legal
authority to execute this agreement on behalf of the respective party, and that such binding
authority has been granted by proper order, resolution, ordinance or other authorization of the
entity. The other party is fully entitled to rely on this warranty and representation in entering
into this Agreement.
21. GOVERNMENTAL POWERS
21.1 It is understood and agreed that by execution of this Agreement, the City does
not waive or surrender any of its governmental powers or immunities.
22. PUBLIC SAFETY AND HAZARDOUS MATERIALS
22.1. Public Safety. Producer shall be solely responsible for initiating,maintaining,and
supervising all safety precautions and programs in connection with the Producer's use of the
Premises.
22.2. Hazardous Materials. Under no circumstances will the Producer use or cause to
be used on the Premises any hazardous or toxic substances or materials, or intentionally or
23. ENTIRE AGREEMENT
23.1 This written instrument (together with any attachments, exhibits, and
appendices) constitutes the entire understanding between the parties concerning the use of
the Premises hereunder, and any prior or contemporaneous, oral or written agreement that
purports to vary from the terms hereof shall be void.
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Flaherty
IN WITNESS WHEREOF,the parties have signed this Agreement in Fort Worth,Tarrant
County,Texas.
CITY OF FORT WORTH: PRODUCER:
Dgng Burghdoff
Dana Burghdoff(Kpr26,202220:01 CDT) JarVd O'Flaherty(Apr 26,202222:29 CDT)
Dana Burghdoff Jarod O'Flaherty
Assistant City Manager
Contract Compliance Manager
By signing, I acknowledge that I am the
person responsible for the monitoring and
administration of this contract including
ensuring all performances and reporting requirements.
Nita Shinsky
Land Agent
APPROVED AS TO FORM AND LEGALITY:
Matthew A. Murray
Assistant City Attorney
ATTEST:
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Jannette S.Goodall(May 4,2022 09:29 CDT) ��o o° d
Jannette S. Goodall d� ° °°°*�
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City Secretary �n��EXASbA
1295: N/A
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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Location Use Agreement—2408/2410 Prospect Avenue and Jarod O'Flaherty