HomeMy WebLinkAboutContract 39665December 14, 2009
STATE OF TEXAS § coNr ECRETARy
CONTRACT NO.
§ DEVELOPMENT AGREEMENT
COUNTY OF TARRANT §
This Development Agreement (this "Agreement") is entered into as of the Effective
Date (as defined herein) by and between Hunter DG Hemphill, LP ("Hunter"), a Texas limited
partnership, and the City of Fort Worth, Texas, a home -rule municipality located in Tarrant,
Denton and Wise Counties, (the "City").
WHEREAS, Hunter desires to develop and to plat into one lot three separate tracts of
land within the City, being Tract One, Tract Two, and Tract Three along with two alleys to be
vacated by the City being Alley One and Alley Two (collectively, the "Alleys") as described on
Exhibit "A" hereto and depicted in Exhibit "A-1", (the Tracts and Alleys collectively referred to
herein as the "Property"); and
WHEREAS, Hunter desires to construct a building for retail use on the Property (the
"Retail Building"); and
WHEREAS, as part of the replatting and redevelopment of the Property, Hunter desires
to obtain the abandonment by the City of the Alleys; and
WHEREAS, pursuant to Ordinance No. 18958-12-2009, adopted on December 8, 2009,
the City Council agreed to abandon the Alleys in order to allow the replat of the Property so that
the Retail Building can be constructed, subject to the filing of this Agreement, executed by both
parties, with the City Secretary's Office by not later than December 20, 2009; and
WHEREAS, in consideration of the abandonment of the Alleys, the City desires, and
Hunter agrees, that the Retail Building will be constructed in accordance with certain agreed -
upon architectural standards applicable to the facades of the Retail Building (the "Facades"), as
set forth in Exhibit "B" hereto (the "Architectural Standards").
NOW, THEREFORE, in consideration of the covenants and conditions contained in this
Agreement, Hunter and the City agree as follows:
1. Property Subiect to Agreement. The Property that is subject to this Agreement
is approximately 1.021 acres of land, more or less, located in the City of Fort Worth, Tarrant
County, Texas, being more particularly described in Exhibit "A", which is attached hereto and
incorporated herein for all purposes.
2. Construction of Facades, Initiation of Construction of Retail Building.
Hunter shall complete or cause to be completed construction of the Facades in accordance with
the Architectural Standards by December 30, 2010. Hunter shall endeavor to obtain the
necessary city permits and initiate construction of the Retail Building by July 1, 2010. .
3. Term. Subject to Hunter's full compliance with Sections 4(b (c), an ereo ,
this Agreement shall take effect on the date as of which both parties have exeJ"kiWAiAgU&QRD
CITY SECRETARY
FT. WORTH, TX
5588308v.5
December 14, 2009
and, unless terminated earlier as provided herein, shall expire on the earlier to occur of (i) the
Certificate of Completion is issued in accordance with Section 5 hereof, or (ii) the City has
completed construction of the Facades with funds drawn from the Letter of Credit (as defined and
provided in Section 4(d)) due to a default by Hunter under Section 9 hereof (the "Term").
4. Conditions Precedent. As conditions precedent to the effectiveness of this
Agreement, Hunter agrees as follows:
(a) Hunter has submitted an application to the City to replat the alleys and the
separate tracts into one lot . Both parties to this Agreement agree this has already been
completed.
(b) Simultaneous with the execution of this Agreement and as a condition
precedent to the effectiveness of this Agreement, Hunter shall execute in favor of the City, by
separate instrument, a fagade easement in the form attached hereto as Exhibit "C" (the "Facade
Easement"). Upon execution by the parties, Hunter shall place the Facade Easement in escrow
with American Escrow Company, 420 Throckmorton Street, Suite 640, Fort Worth, TX 76102
(the "Escrow Agent"), attn: Jeff Davis and Linda Williams, to hold Fagade Easement until the
earlier to occur of: (i) the issuance of the Certificate of Completion, in which case Escrow Agent
shall be authorized to release the Facade Easement to Hunter, (ii) delivery to Escrow Agent of a
notice from the City that Hunter is either (a) in default under this Agreement for failure to
construct the Facades in accordance with the Architectural Standards and Hunter has not cured
such default in accordance with this Agreement or (b) in default under this Agreement for failure
to complete construction of the Facades in accordance with the Architectural Standards by
December 30, 2010, in which case Escrow Agent shall deliver the Fagade Easement to the City;
or (iii) delivery to Escrow Agent of a notice from the City that Hunter is in default under this
Agreement for failure to initiate construction of the Retail Building by July 1, 2010, in which
case the Fagade Easement shall be null and void.
(c) Simultaneous with the execution of this Agreement and as a condition
precedent to the effectiveness of this Agreement, Hunter shall execute in favor of the City, by
separate instrument, a permanent access easement in the form attached hereto as Exhibit "D" (the
"Access Easement") granting a permanent access easement covering the former location of Alley
One. Hunter shall place the Access Easement in escrow with the Escrow Agent to hold such
Access Easement until the earlier to occur of: (i) the issuance of the Certificate of Completion, in
which case the Access Easement shall be delivered to Hunter, or (ii) delivery to Escrow Agent of
a notice from the City that Hunter is in default under this Agreement for failure to initiate
construction of the Retail Building by July 1, 2010, in which case the Access Easement shall be
delivered to the City.
(d) Simultaneous with the execution of this Agreement and as a condition
precedent to the effectiveness of this Agreement, Hunter agrees to secure and deliver to the City
a Letter of Credit in the form as shown in Exhibit "E" attached to this Agreement issued by
Texas Capital Bank ("Bank") in the amount of $42,000, being an estimated amount equal to the
cost to construct the Facades in accordance with the Architectural Standards (the "Letter of
Credit"). The Letter of Credit shall provide that the City has the right to draw upon such Letter of
Credit, in whole or in part, solely to pay outstanding actual invoices for work performed on the
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December 14, 2009
Property, upon delivery to Bank of a notice from the City that Hunter is in default under this
Agreement for failure to construct the Facades in accordance with the Architectural Standards
and has failed to cure such default in accordance with this Agreement or for failure to complete
construction of the Facades in accordance with the Architectural Standards by December 30,
2010. The City shall use all funds drawn on the Letter of Credit solely to complete construction
of the Facades in accordance with the Architectural Standards. Once the City has completed
construction of the Facades in accordance with the Architectural Standards, and provided that the
City has not drawn on the full amount of the Letter of Credit, the City shall provide written
notice to Hunter and the Bank, in a form acceptable to the Bank, that the City releases its rights
under the Letter of Credit. Any funds drawn by the City which are not used to pay actual
invoices for the work shall be returned to Hunter within 60 days of completion of the work by
the City as defined in this Agreement.
5. Certificate of Completion.
Once Hunter has completed the Facades in accordance with the Architectural Standards,
Hunter shall submit a written notice, signed by an officer of Hunter and Hunter's general
contractor, to the Director of the City's Housing and Economic Development Department, which
notice will state the specific work completed on the Facades and shall include final lien waivers
signed by the general contractor. Upon receipt of such notice, the City shall have fifteen (15)
business days to (i) issue to Hunter a certificate signed by the Director of the City's Housing and
Economic Development Department or designee that states that the Facades have been completed
in accordance with this Agreement (the "Certificate of Completion") or (ii) to notify Hunter in
writing of any objection that it may have as to whether the Facades have been constructed and
completed in accordance with this Agreement, in which case Hunter shall take remedial action to
complete the Facades in accordance with this Agreement, and the process outlined in this Section
5 shall continue until the City is able to issue the Certificate of Completion. The City shall not
be unreasonable in withholding the Certificate of Completion so long as the terms of this
agreement are met as determined by City in its sold discretion.
6. Inspections and Deviation from Architectural Standards.
Throughout the Term of this Agreement, at any time during normal business hours and
following at least twenty-four (24) hours' advance written notice to Hunter, the City and any
authorized designee shall have, and Hunter shall provide, access to the Property so that the City
or any authorized designee can inspect the Retail Building in order to ascertain if the
construction of the Facades is in compliance with the Architectural Standards and the provisions
of this Agreement. Hunter shall cooperate fully with the City during any such inspection and/or
evaluation.
If at any time during the Term, the City determines that the Facades are not being
constructed or have not been constructed in accordance with the Architectural Standards and the
provisions of this agreement, the City shall notify Hunter in writing. Said notification shall
include sufficient detail as to what the deviations are, so Hunter or a third party may understand
what the deviations are. Written notification by the City shall serve as a "stop work order" and
Hunter shall immediately cease construction work on the Facades. Hunter shall have fourteen
(14) calendar days to provide the City with a written response to this notice, which response shall
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December 14, 2009
include a proposal to cure the deviation and a time frame to cure the deviation. The time frame
to cure the deviation shall not exceed thirty (30) days without the consent of the City, which shall
not be unreasonably withheld. Both parties agree that if the City delivers notice as is described in
this paragraph, the City shall respond within 48 hours to Hunter's cure.
Failure to respond to the City within the time frame allowed or to cure the deviation shall
constitute an event of default under Section 9 below.
7. Insurance.
Upon notice to the Escrow Agent that the City has demanded recordation of the Facade
Easement or made a demand for funds under the Letter of Credit, Hunter shall name the City as
an additional insured on Hunter's policy or policies of insurance as specified in this Section
covering all risks related to the Project, issued by and binding upon an insurance company
authorized to do business in the State of Texas with an A.M. Best Rating of at least A-VIII and
acceptable to the City. Hunter shall obtain the following insurance coverage at the limits
specified herein:
• Proverty
Fire and Extended Coverage on the Terminal Building at full replacement cost limit;
• Commercial General Liabilitv:
$500,000 per occurrence;
• Excess Liabilitv Umbrella:
$2 million.
These insurance requirements shall be subject to change upon a reasonable request by the
City's Risk Manager, except the amounts shall not be changed. Within fourteen (14) calendar
days of receipt of written notice of any such request (other than the amounts), Hunter agrees to
comply with such revised insurance requirements. The policy or policies of insurance shall be
endorsed to provide that no material changes in coverage, including, but not limited to,
cancellation, termination, non -renewal or amendment, shall be made without thirty (30) calendar
days' prior written notice to the City. As a condition precedent to the effectiveness of this
Agreement, Hunter shall furnish the City with appropriate certificates of insurance signed by the
respective insurance companies as proof that Hunter has obtained the types and amounts of
insurance coverage required herein. Hunter hereby covenants and agrees that not less than thirty
(30) days prior to the expiration of any insurance policy required hereunder, it shall provide the
City with a new or renewal certificate of insurance. In addition, Hunter shall, at the City's
request, provide the City with evidence that it has maintained such coverage in full force and
effect.
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December 14, 2009
8. INDEMNIFICATION.
HUNTER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE
CITY, AND ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES AND CONTRACTORS
(EXCLUDING HUNTER), AGAINST ANY AND ALL CLAIMS, LA WSUITS, COSTS AND
EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR
ANY OTHER HARM OR CLAIM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT
AND THAT MAY ARISE OUT OF OR BE OCCASIONED BY HUNTER'S BREACH OF
ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT, OR BY ANY
NEGLIGENT OR GROSSLY NEGLIGENT ACT OR OMISSION, OR MALFEASANCE, OF
HUNTER, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS
(OTHER THAN THE CITY) OR SUBCONTRACTORS, IN THE PERFORMANCE OF
THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE CONSTRUCTION OF
THE RETAIL BUILDING AND THE FACADES AS WELL AS ANY OTHER
DEVELOPMENT OF THE PROPERTY. IN THE EVENT OF JOINT AND CONCURRENT
NEGLIGENCE OF BOTH HUNTER AND THE CITY, RESPONSIBILITY, IF ANY,
SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL
IMMUNITY AVAILABLE TO THE CITY UNDER TEXAS OR FEDERAL LAW. THE
PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE
PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS,
CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY.
9. Default and Remedv.
The following shall be deemed events of default (herein so called) by Hunter under this
Agreement:
(a) Hunter fails to construct the Facades in accordance with this Agreement and to cure
such failure in the manner specified by this Agreement, in which case the City shall have the right
to receive the Facade Easement from the Escrow Agent and to draw part or all of the funds under
the Letter of Credit, as deemed necessary by the City sufficient to pay actual invoices for work
incurred by the City, in order to complete the Facades in accordance with the Architectural
Standards, as further provided by Sections 4(b) and (d) of this Agreement;
(b) Hunter fails to complete the Facades in accordance with the Architectural
Standards and this Agreement by December 30, 2010, in which case the City shall have the right
to receive the Fagade Easement from the Escrow Agent and to draw part or all of the funds under
the Letter of Credit, as deemed necessary by the City sufficient to pay actual invoices for work
incurred by the City, in order to complete the Facades in accordance with the Architectural
Standards, as further provided by Sections 4(b) and (d) of this Agreement;
(c) Hunter fails to initiate construction of the Retail Building by July 1, 2010, in
which case the City shall have the right to receive from the Escrow Agent the Access Easement,
as further provided by Section 4(c), and this Agreement shall terminate; or
(d) Hunter breaches any other term, provision or covenant of this Agreement in any
material respect and fails to cure such breach within thirty (30) calendar days following receipt
5588308v.5
December 14, 2009
of written notice from the City specifying the nature of the breach, in which case (i) if
construction of the Retail Building has commenced, the City shall have the right to receive the
Fagade Easement from the Escrow Agent and to draw part or all of the funds under the Letter of
Credit, as deemed necessary by the City sufficient to pay actual invoices, in order to complete the
Facades in accordance with the Architectural Standards, as further provided by Sections 4(b) and
(d) of this Agreement, or (ii) if construction of the Retail Building has not commenced, the City
shall have the right to receive from the Escrow Agent the Access Easement, as further provided
by Section 4(c), and this Agreement shall terminate.
Hunter understands and agrees that the City may enforce any provision of this contract through
specific performance. For all events of Hunter default covered by this Agreement or otherwise,
the City shall be required to give written notice and Hunter shall have 10 days to cure the default
or to begin to cure the default and shall have the right to continue the cure so long as Hunter is
diligently pursuing the cure.
10. Successors and Assigns.
This Agreement shall be binding on and inure to the benefit of the parties, their respective
successors and assigns. With regard to a sale or conveyance of all or any portion of the Property,
Hunter shall include a provision in any written instrument governing such sale or conveyance
and shall include a statement in any deed covering such property a provision expressly setting
forth that the property and the purchaser or successor in interest thereof are subject to and bound
by this Agreement and all covenants, obligations, agreements and restrictions herein.
11. Notices.
Notice to be given or to be served upon a party hereto in connection with this Agreement
must be in writing and shall be given by certified or registered mail and shall be deemed to have
been given and received when a certified or registered letter containing such notice, properly
addressed with postage prepaid, is deposited in the United States mail, and if given otherwise
than by certified or registered mail, it shall be deemed to have been given and delivered when it
is actually received by the party (or such party's agent or representative) to whom it is addressed.
Such notice shall be given to the parties hereto at the address set forth below. Any party hereto
may, at any time by giving ten (10) days written notice to the other parties, designate any other
address in substitution of the foregoing address to which such notice shall be given.
If intended for Hunter, to:
Hunter DG Hemphill, LP
c/o Scott Rohrman
Hunter D, LLC
3890 West Northwest Highway
Suite 100
Dallas, Texas 75220
With copy to:
William S. Dahlstrom, Esq.
Jackson Walker, L.L.P.
901 Main Street, Suite 6000
Dallas, Texas 75202
5588308v.5
December 14, 2009
If intended for City, to:
Housing and Economic Development
Attn: Director
1000 Throckmorton
Fort Worth Tex 76102
12. Venue and Jurisdiction.
City Attorney's Office
Attn: City Attorney
1000 Throckmorton
Fort Worth, Texas, 76102
This Agreement shall be construed in accordance with the laws of the State of Texas and
applicable ordinances, rules, regulations or policies of the City. Venue for any action under this
Agreement shall lie in the State District Court of Tarrant County, Texas. This Agreement is
performable in Tarrant County, Texas.
13. Compliance with Legal Requirements, Withholding of Certificate of
Occupancy.
This Agreement is subject to all applicable federal, state and local laws, ordinances, rules
and regulations, including, but not limited to, all provisions of the City's Charter and ordinances,
as amended, and violation of same shall constitute a default under this Agreement. In
undertaking any work on the Project, Hunter, its officers, agents, servants, employees,
contractors and subcontractors shall comply with all federal, state and local laws and all
ordinances, rules and regulations of the City, as such laws, ordinances, rules and regulations exist
or may hereafter be amended or adopted. Notwithstanding anything to the contrary in this
Agreement, Hunter agrees that the City shall have the right to withhold issuance of any
Certificate of Occupancy unless the Facades have been completed, either by Hunter or by the
City, in accordance with this Agreement, and Hunter hereby waives any rights Hunter may have
under any applicable law, including City ordinances, rules or regulations, regarding the issuance
of any certificate of occupancy for the Retail Building prior to completion of the Facades in
accordance with this Agreement. The City shall issue the Certificate of Completion within 15
business days of notification by Hunter to the City of the completion of the facades. The City
may not unreasonably withhold the Certificate of Completion so long as the terms of this
agreement are met. If the City does not give Hunter a fully executed Certificate of Completion
within 15 days of Hunter's delivery of the notice of completion of the facades, or a written
response as to why the City is not giving the Certificate of Completion, then the Certificate of
Completion shall be deemed by all parties to have actually been given by the City and the escrow
agent and all third parties may rely on this paragraph as satisfaction of the requirements herein.
14. Eminent Domain.
Nothing in this Agreement shall be construed to give the City or the City an interest in
any award or payment made to Hunter in connection with any exercise of eminent domain or
transfer in lieu thereof affecting the Property or to give the public or any governmental authority
any rights in the Property other than those granted by Hunter. The award or payment attributable
to any portion of the Land condemned or transferred in lieu thereof shall belong solely to Hunter.
A taking, or transfer in lieu thereof, of the Facades shall result in the automatic termination of
5588308v.5
December 14, 2009
this Agreement, in which case any further obligation of the City to pay Hunter any remaining
balance of Rent or any interest on any Installment Shortfall shall be extinguished.
15. City Representative.
Hunter understands and agrees that the City, in its sole discretion, may appoint certain
City staff members, a City department or another entity to serve as its representative in carrying
out any or all of the responsibilities of the City hereunder, and that references to "the City" in
this Agreement mean the City in its entirety or any such designated representative.
16. Severability.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired.
17. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and constitute one and the same instrument.
18. Captions.
The captions to the various clauses of this Agreement are for informational purposes only
and shall not alter the substance of the terms and conditions of this Agreement.
19. Mutual Cooperation.
The parties hereby agree to reasonably cooperate with one another in ensuring that the
terms and conditions of this Agreement are carried out as intended by the parties. In the event of
any dispute between the parties as to the meaning of any provision of this Agreement, the parties
may agree to non -binding mediation in order to resolve the dispute.
20. Entirety of Agreement.
Notwithstanding anything that may be interpreted to the contrary herein, this Agreement,
including any exhibits attached hereto and any documents incorporated herein by reference,
contains the entire understanding and agreement between the City and Hunter, their assigns and
successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or
written agreement is hereby declared null and void to the extent in conflict with any provision of
this Agreement. This Agreement shall not be amended unless executed in writing by both parties
and approved by the City in an open meeting held in accordance with Chapter 551 of the Texas
Government Code.
2.1. Tim is of 1&_E c_e11ce: Tint r,)
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December 14, 2009
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed
as of the later date below:
EXECUTED TO BE EFFECTIVE as of Qxw i,,, �, 20`�
� �- (the "Effective
Date"). 01
CITY OF FORT WORTH, TEXAS APPROVED AS TO
AND LEGALITY:
ASSISTA T CITY ATTORNEY
By.
Assistant City ger
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HUNTER DG HEMPHILL, LPG oOpppwplQ ��
a Texas limited partnership
By: Hunter D, LLC, a Texas limite bil y company,
its General Partne -or'-- or i aatioa
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Scott Ro ana2er Date
OFFICIAL RECORD
CITY SECRETARY
5588308v.5 FT. WORTH, TX
December 14, 2009
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
B�RW ME, the undersigned authority, on this day personally
appeared6111 �i ►l S ,known tome to be the person and officer whose name is subscribed
i to the foregoing nstrument, and acknowledged to me that he executed the same as the act and
deed of the City of Fort Worth, a municipal corporation of Tarrant County, Texas, for the
purpose and consideration therein expressed and in the capacity therein stated.
MARIA S. SANCHEZ-
y My COMMISSION EXPIRES of Public — §tate of Texas
December 14, 2013
HUNTER DG HEMPHILL, LP's' ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the /1&'`� day of1)- -'V elv be,.--,
2009, by Scott Rohrman, Manager of Hunter D, LLC, a Texas limited liability company, the
General Partner of Hunter DG Hemphill, LP, a Texas limited partnership, on behalf of said
partnership.
DIANE M. THIEBAUD
Notary Public, State of Texas
My Commission Expires
Oi�E'�July 11, 2010 Notary
� '1 ba4641(—
Public — State of Texas
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
5588308v.5
December 14, 2009
Exhibit "A"
Legal Description of Property
TRACT ONE:
BEING Lot 1, Block 2, J.T. Blanchard Subdivision of 6 3/8 acres of land out of the J. Nellis
Survey to the City of Fort Worth, Tarrant County, Texas, according to the plat recorded in
Volume 106, Page 137, Plat Records, Tarrant County, Texas.
SAVE AND EXCEPT the West 17 feet of said Lots heretofore conveyed to the Public for alley
purposes by deed from George S. Berry, et al, dated December 20, 1904, recorded in Volume
203, Page 606, Deed Records of Tarrant County, Texas.
TRACT TWO:
BEING Lot 2 and the North 16 2/3 feet of Lot 3, Block 2, Blanchard Addition to the City of Fort
Worth, Tarrant County, Texas, according to the plat recorded in Volume 106, Page 137, Plat
Records, Tarrant County, Texas.
SAVE AND EXCEPT the West 17 feet of said Lots heretofore conveyed to the Public for alley
purposes by deed from George S. Berry, et al, dated December 20, 1904, recorded in Volume
203, Page 606, Deed Records of Tarrant County, Texas.
TRACT THREE:
BEING LOT 6, OF C.T. HODGE ADDITION, an Addition to the City of Fort Worth, Tarrant
County, Texas, according to the map or plat thereof recorded in Volume 204, Page 64, of the Plat
Records of Tarrant County, Texas.
SAVE AND EXCEPT the East 8 feet thereof deeded to the City of Fort Worth by F.C.
Tomlinson and wife, Claudine Tomlinson, by Deed dated June 19, 1941, recorded in Volume
1475, Page 234, Deed Records, Tarrant County, Texas.
ALLEY ONE
BEING a parcel or tract of land situated in the J.N. Ellis Survey, in the City of Fort Worth,
Tarrant County, Texas, and being more particularly described as follows:
BEGINNING at the a PK nail found for the Northeasterly corner of Lot 1, Block 2 of the J.T.
Blanchard Subdivision of 6-3/8 Acres, according to the plat thereof recorded in Volume 106,
Page 137, Plat Records, Tarrant County, Texas, said point also being in the Westerly line of
Hemphill Street (80' right-of-way at this point);
THENCE South 89°39'05" West, departing the Westerly line of said Hemphill Street and
following the Northerly line of said Lot 1, Block 2, a distance of 216.52 feet to a one-half inch
iron rod with cap found for corner at the Northwesterly corner of a 17' Public Alley described in
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December 14, 2009
Volume 203, Page 606, Deed Records, Tarrant County, Texas, said point also being in the
Easterly line if the A.T. & S.F. Railroad (100' right-of-way);
THENCE North 30°37'27" East, departing the Northerly line of said 17' Public Alley and
following the Easterly line of said A.T. & S.F. Railroad tract, a distance of 18.83 feet to a one
inch iron rod found for corner, said point being the Southwesterly corner of the remainder of Lot
6 of the C.T. Hodge Addition, according to the plat thereof recorded in Volume 204, Page 64,
Plat Records, Tarrant County, Texas;
THENCE North 89°39'05" East, departing the Easterly line of said A.T. & S.F. Railroad tract,
and following the Southerly line of said Lot 6, a distance of 206.63 feet to a point for corner in
the Westerly line of said Hemphill Street;
THENCE South 01 °02' 18" East, departing the Southerly line of said Lot 6 and following the
Westerly line of said Hemphill Street, a distance of 16.15 feet to the POINT OF BEGINNING
and containing 3,416 Square Feet or 0.078 acres of land, more or less.
Bearing based on Texas State Plane Coordinates, Texas North Central Zone 4202.
ALLEY TWO
BEING a parcel of tract of land situated in the J.N. Ellis Survey, in the City of Fort Worth,
Tarrant County, Texas, being part of that tract of land described to the public by deed recorded in
Volume 203, Page 606, Deed Records, Tarrant County, Texas, and being more particularly
described as follows:
BEGINNING at a five -eighths inch iron rod found for corner at the Northwesterly corner of Lot
5R1, Block 2 of the Blanchard Addition, according to the plat thereof recorded in Cabinet B,
Slide 147, Plat Records, Tarrant County, Texas, said point also being in the Easterly line of the
A.T. & S.F. Railroad (100' right-of-way), said point also being in the Westerly line of Lot 3,
Block 2 of the original J.T. Blanchard Subdivision of 6-3/8 Acres, according to the plat thereof
recorded in Volume 106, Page 137, Plat Records, Tarrant County, Texas;
THENCE North 30037'27" East, departing the Northerly line of said Lot 5R1, Block 2 and
following the Easterly line of said A.T. & S.F. Railroad and the Westerly line of said original
J.T. Blanchard Subdivision, a distance of 136.22 feet to a one-half inch iron rod found for corner,
said point being the Northwesterly corner of Lot 1, Block 2 of said original J.T. Blanchard
Subdivision, said point also being in the Southerly line of an Alley;
THENCE North 89039'05" East, following the Southerly line of said Alley and the Northerly
line of said Lot 1, Block 2 of said original J.T. Blanchard Subdivision, a distance of 19.83 feet to
a point for corner;
THENCE South 3003727" West, departing the Southerly line of said Alley and the Northerly
line of said Lot 1, Block 2 of said original J.T. Blanchard Subdivision, a distance of 136.22 feet
to a point for corner in the Northerly line of said Lot 5R1, Block 2;
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December 14, 2009
THENCE South 89°37'52" West, following the Northerly line of said Lot 5R1, Block 2 a
distance of 19.83 feet to the POINT OF BEGINNING and containing 2,316 Square Feet of 0.053
acres of land, more or less.
Bearings based on Texas State Plan Coordinates, Texas North Central Zone 4202.
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;r
AUG 23, 2009
Exhibit "A-1"
Depiction of the Property
SCALE: 1" = 40' EXHIBIT
ALLEY VACATI O N
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CDT.. t ODf:E
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IN THE J.N. ELLIS SURVEY
P R.T.C.TT.. - MAT RECORDS. TARRANT
DAVID F. NsCULIAH
CITY OF FORT WORTH
COUNTY. TEXAS.
R.D.w - RIGHT-OF-WAY
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TARRANT COUNTY, TEXAS
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JOB No. 0163-007 DWG. NO. 1355 ape/dim SHEET 2 W 2
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5588308v.5
AUG 23, 2009
Exhibit `B"
Architectural Standards
1. The front fagade of the building facing Hemphill Street shall be constructed of has 8" x
16" split faced block painted Interactive Cream (Sherwin-Williams 6113) up to an
elevation of ten (10) feet from the ground.
2. The front fagade of the building facing Hemphill Street shall be constructed of stucco and
painted Sturdy Brown (Sherwin —Williams 6097) from ten (10) feet above the ground to
the top of the front parapet.
3. The north side of the building fagade facing the parking lot shall be constructed of 8" x
16" split faced concrete block painted Interactive Cream (Sherwin-Williams 6113) up to
an elevation of four (4) feet from the ground and extends the full length of the side of the
building.
4. The north side of the building fagade facing the parking lot from four (4) feet above the
ground to the top of the north side wall shall be constructed of stucco painted Bagel
(Sherwin-Williams 6114) and extends the full length of the side of the building.
-15-
5588308v.5
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5588308v.5
AUG 23, 2009
Exhibit "C"
Facade Easement
Date: December _, 2009
Grantors: HUNTER DG HEMPHILL, LP
a Texas limited partnership
Grantor's Mailing Address:
Hunter DG Hemphill, LP
3890 West Northwest Highway
Suite 100
Dallas, Texas 75220
Grantee: CITY OF FORT WORTH
CITY'S MAILING ADDRESS (including County):
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Tarrant County, Texas 76102
Easement ProUerty: See attached Exhibits "A" and "A-l" (the "Land") and "B" (the Building,
Facades and Architectural Standards).
Easement Purpose: To provide to Grantee the free and uninterrupted right to enter the Land across
the dominant estate and to provide to Grantee the interest in the Facade and the free and uninterrupted
right to construct the Facades on any building constructed on the Land (the "Building") per the
Development Agreement and in conformance with the Architectural Standards as shown in Exhibit `B"
attached to the Development Agreement between the Grantor and the Grantee, being City Secretary
Contract Number the same being on file in the City of Fort Worth City Secretary's Office.
Consideration: The sum of TEN AND NO1100 DOLLARS ($10.00) and other good and valuable
consideration paid by Grantee, the receipt and sufficiency of which are acknowledged by Grantor.
Grant of Easement: Grantor, for the consideration paid to Grantor and other good and valuable
consideration, hereby grants, sells and conveys an exclusive easement as defined herein to Grantee, its
successors and assigns.
TO HAVE AND TO HOLD the Easement, together with all and singular the rights and appurtenances
thereto in anyway belonging to Grantee, and Grantee's successors and assigns forever; and Grantor does
hereby bind itself and its successor and assigns to warrant and forever defend all and singular the
Easement to Grantee, its successor and assigns, against every person whomsoever lawfully claiming or to
claim the same, or any part thereof.
Terms and Conditions: The following terms and conditions apply to the Easement granted herein:
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5588308v.5
AUG 23, 2009
1. Character of Easement. The Facade Easement is exclusive and irrevocable. The Fagade
Easement is for the benefit of Grantee and Grantee's successors and assigns.
2. Duration of Easement. The duration of the Easement shall be in force and effective from
the earlier of (i) five (5) days after full execution of both the Development Agreement and the Fagade
Easement, or (ii) the date the City records the Development Agreement in the City's Secretary Office. The
Fagade Easement shall expire on the date as of which a certificate (the "Certificate of Completion") is
signed by either the City's Building Official or the Director of the Housing and Economic Development
Department indicating that the Facades are constructed in accordance with the Architectural Standards.
3. Improvements. The Grantee shall have the right, but not the obligation, to construct, at its
sole expense, Facade improvements upon the Easement Property in conformance with the Development
Agreement.
4. Binding Effect. This agreement binds and inures to the benefit of the parties and their
respective successor and assigns.
5. Choice of Law. This agreement will be construed under the laws of the state of Texas,
without regard to choice -of -law rules of any jurisdiction. Venue is in Tarrant County, Texas.
6. Counterparts. This agreement may be executed in any number of counterparts with the
same effect as if all signatory parties had signed the same document. All counterparts will be construed
together and will constitute one and the same instrument.
7. Integration. This agreement contains the complete agreement of the parties and cannot
be varied except by written agreement of the parties. The parties agree there are no oral agreements,
representations, or warranties that are not expressly set forth in this agreement.
8. Legal Construction. If any of this provision is for any reason unenforceable, to the extent
the enforceability does not destroy the basis of the bargain among the parties, the unenforceability will
not affect any other provision hereof, and this agreement will be construed as if the unenforceable
provision had never been part of the agreement.
Ttme is q the fo.
LtaoGlltGllL. pr� 5�u
EXECUTED this day of , 2009.
Grantor:
HUNTER DG HEMPHILL, LP
a Texas limited partnership
By: Hunter D, LLC,
a Texas limited liability company,
its General Partner
Scott Rohrman, Manager
- 19-
5588308v.5
AUG 23, 2009
Grantee:
CITY OF FORT WORTH, TEXAS
Assistant City Manager
THE STATE OF TEXAS
COUNTY OF TARRANT
Before me, the undersigned authority, on this day personally appeared Scott Rohrman, Manager
of Hunter D, LLC, a Texas limited liability company, 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 on behalf of such corporation acting in its capacity as
General Partner of Hunter DG Hemphill, LP, a Texas limited partnership.
Given under my hand and seal of office this the day of , 2009.
Notary Public for the State of Texas
THE STATE OF TEXAS
COUNTY OF TARRANT
Before me, the undersigned authority, on this day personally appeared
, Assistant City Manager, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same as the act
and deed of the City of Fort Worth, Texas, and for the purposes and consideration therein expressed, and
in the capacity therein stated, and that he/she was authorized to do so.
Given under my hand and seal of office this the day of 12009.
Notary Public for the State of Texas
After Recording Return to:
Melinda Ramos
City of Fort Worth
City Attorney's Office
1000 Throckmorton
Fort Worth, Texas 76102
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5588308v.5
AUG 23, 2009
Exhibit "D"
PERMANENT ACCESS EASEMENT
Date: December , 2009
Grantors: HUNTER DG HEMPHILL, LP
a Texas limited partnership
Grantor's Mailing Address:
Hunter DG Hemphill, LP
3890 West Northwest Highway
Suite 100
Dallas, Texas 75220
Grantee: CITY OF FORT WORTH
CITY'S MAILING ADDRESS (including County):
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Tarrant County, Texas 76102
Easement Property: BEING a parcel or tract of land situated in the J.N. Ellis Survey, in the
City of Fort Worth, Tarrant County, Texas, and being more particularly described as follows:
BEGINNING at the a PK nail found for the Northeasterly corner of Lot 1, Block 2 of the J.T.
Blanchard Subdivision of 6-3/8 Acres, according to the plat thereof recorded in Volume 106,
Page 137, Plat Records, Tarrant County, Texas, said point also being in the Westerly line of
Hemphill Street (80' right-of-way at this point);
THENCE South 89°39'05" West, departing the Westerly line of said Hemphill Street and
following the Northerly line of said Lot 1, Block 2, a distance of 216.52 feet to a one-half inch
iron rod with cap found for corner at the Northwesterly corner of a 17' Public Alley described in
Volume 203, Page 606, Deed Records, Tarrant County, Texas, said point also being in the
Easterly line if the A.T. & S.F. Railroad (100' right-of-way);
THENCE North 30°37'27" East, departing the Northerly line of said 17' Public Alley and
following the Easterly line of said A.T. & S.F. Railroad tract, a distance of 18.83 feet to a one
inch iron rod found for corner, said point being the Southwesterly corner of the remainder of Lot
6 of the C.T. Hodge Addition, according to the plat thereof recorded in Volume 204, Page 64,
Plat Records, Tarrant County, Texas;
THENCE North 89°39'05" East, departing the Easterly line of said A.T. & S.F. Railroad tract,
and following the Southerly line of said Lot 6, a distance of 206.63 feet to a point for corner in
the Westerly line of said Hemphill Street;
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5588308v.5
AUG 23, 2009
THENCE South 01°02' 18" East, departing the Southerly line of said Lot 6 and following the
Westerly line of said Hemphill Street, a distance of 16.15 feet to the POINT OF BEGINNING
and containing 3,416 Square Feet or 0.078 acres of land, more or less.
Bearing based on Texas State Plane Coordinates, Texas North Central Zone 4202.
Easement Purpose: To provide to Grantee the free and uninterrupted right to use the Easement
Property for vehicular and pedestrian access across the dominant estate and the interest in land owned by
Grantor,".
Consideration: The sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable
consideration paid by Grantee, the receipt and sufficiency of which are acknowledged by Grantor.
Grant of Easement: Grantor, for the consideration paid to Grantor and other good and valuable
consideration, hereby grants, sells and conveys to Grantee, its successors and assigns, an exclusive,
perpetual access easement in the Easement Property.
TO HAVE AND TO HOLD the Easement, together with all and singular the rights and appurtenances
thereto in anyway belonging to Grantee, and Grantee's successors and assigns forever; and Grantor does
hereby bind itself and its successor and assigns to warrant and forever defend all and singular the
Easement to Grantee, its successor and assigns, against every person whomsoever lawfully claiming or to
claim the same, or any part thereof.
Terms and Conditions: The following terms and conditions apply to the Easement granted herein:
1. Character of Easement. The Easement is exclusive and irrevocable. The Easement is for
the benefit of Grantee and Grantee's successors and assigns.
2. Duration of Easement. The duration of the Easement is until the fagade of the building
has been built per the Development Agreement and a Certificate of Completion has been issued by City.
3. Improvements. The Grantee shall have the right, but not the obligation, to construct, at its
sole expense, improvements upon the Easement Property to make the Easement Property suitable for
pedestrian and vehicular use. The Grantor shall not be obligated to install any of the Improvements.
4. Maintenance of the Easement Property. Improvement and maintenance of the Easement
Property will be at the sole expense of the Grantee.
5. Binding Effect. This agreement binds and inures to the benefit of the parties and their
respective successor and assigns.
6. Choice of Law. This agreement will be construed under the laws of the state of Texas,
without regard to choice -of -law rules of any jurisdiction. Venue is in Tarrant County, Texas.
7. Counterparts. This agreement may be executed in any number of counterparts with the
same effect as if all signatory parties had signed the same document. All counterparts will be construed
together and will constitute one and the same instrument.
-22-
5588308v.5
AUG 23, 2009
8. Integration. This agreement contains the complete agreement of the parties and cannot
be varied except by written agreement of the parties. The parties agree there are no oral agreements,
representations, or warranties that are not expressly set forth in this agreement.
9. Legal Construction. If any of this provision is for any reason unenforceable, to the extent
the enforceability does not destroy the basis of the bargain among the parties, the unenforceability will
not affect any other provision hereof, and this agreement will be construed as if the unenforceable
provision had never been part of the agreement.
I-Q _L f tho Fg onro Time k nf fhe.PCCP ! P ' u iG�Ai\i 0 this
A't'ee3J LUJaJ11�Vltt.
EXECUTED this day of , 2009.
Grantor:
HUNTER DG HEMPHILL, LP
a Texas limited partnership
By: Hunter D, LLC,
a Texas limited liability company,
its General Partner
Scott Rohrman, Manager
Grantee:
CITY OF FORT WORTH, TEXAS
Assistant City Manager
-23-
5588308v.5
AUG 23, 2009
THE STATE OF TEXAS
COUNTY OF TARRANT
Before me, the undersigned authority, on this day personally appeared Scott Rohrman, Manager
of Hunter D, LLC, a Texas limited liability company, 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 on behalf of such corporation acting in its capacity as
General Partner of Hunter DG Hemphill, LP, a Texas limited partnership.
Given under my hand and seal of office this the day of , 2009.
Notary Public for the State of Texas
THE STATE OF TEXAS
COUNTY OF TARRANT
Before me, the undersigned authority, on this day personally appeared
, Assistant City Manager, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same as the act
and deed of the City of Fort Worth, Texas, and for the purposes and consideration therein expressed, and
in the capacity therein stated, and that he/she was authorized to do so.
Given under my hand and seal of office this the day of 2009.
Notary Public for the State of Texas
After Recording Return to. -
Melinda Ramos
City of Fort Worth
City Attorney's Office
1000 Throckmorton
Fort Worth, Texas 76102
-24-
ssss30sv.s
AUG 23, 2009
Exhibit "E"
FORM OF LETTER OF CREDIT
Texas Capital Bank has prepared this draft upon request and based on information supplied to it.
No representation or commitment is made by Texas Capital Bank regarding the accuracy or
suitability of the draft for its intended purpose or the willingness of Texas Capital Bank to issue a
letter of credit in this or any other form. If Applicant agrees with this draft form for the proposed
letter of credit, please indicate below and return to Texas Capital Bank.
APPROVED AS TO FORM AND SUBSTANCE
HUNTER DG HEMPHILL, LP
a Texas limited partnership
By: Hunter D, LLC, a Texas limited liability company,
its General Partner
By:
Scott Rohrman, Manager
Exhibit E
DATE: December XX, 2009
LETTER OF CREDIT NO. LC XXX
BENEFICIARY: City of Fort Worth
Housing and Economic Development
1000 Throckmorton St.
Fort Worth, TX 76102
APPLICANT: Hunter DG Hemphill, LP
3890 West Northwest Highway, Suite 100
Dallas, TX 75220
FACE AMOUNT: US$42,000.00
(FORTY TWO THOUSAND AND NO/100ths U.S. DOLLARS)
EXPIRATION DATE: January 31, 2011
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5588308v.5
AUG 23, 2009
PLACE OF EXPIRY: Texas Capital Bank, N.A.
Letter of Credit Unit
2000 McKinney Ave., Suite 700
Dallas, Texas 75201
Phone: 214/932-6762 or 214/932-6831
LADIES AND GENTLEMEN:
PROJECT:
HUNTER DG HEMPHILL, LP
WE HEREBY ESTABLISH IN YOUR FAVOR OUR IRREVOCABLE STANDBY LETTER
OF CREDIT NO. XXX WHICH IS AVAILABLE WITH TEXAS CAPITAL BANK, N.A. BY
PAYMENT AGAINST PRESENTATION OF THE ORIGINAL OF THIS LETTER OF
CREDIT AND AMENDMENT(S), IF ANY AND YOUR DRAFT(S) AT SIGHT DRAWN ON
TEXAS CAPITAL BANK, N.A. ACCOMPANIED BY THE DOCUMENTS SPECIFIED
BELOW:
A SIGNED STATEMENT FROM THE BENEFICIARY STATING THAT:
"HUNTER DG HEMPHILL, LP HAS FAILED TO COMPLETE CONSTRUCTION OF THE
FACADES IN ACCORDANCE WITH THE ARCHITECTURAL STANDARDS BY
DECEMBER 30, 2010 FOR THE HUNTER DG HEMPHILL, LP PROJECT."
WE HEREBY AGREE WITH YOU THAT THE DRAFT(S) DRAWN UNDER AND
INCOMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY
HONORED UPON PRESENTATION AT TEXAS CAPITAL BANK, N.A. AT THE
ADDRESS INDICATED AT THE TOP OF PAGE ONE (1) UNDER PLACE OF EXPIRY.
THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY
PRACTICES 1998, ICC PUBLICATION NO. 590.
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5588308v.5
M&C Review Pagel of 2
Off dal site of the City of Fort Worth, ' ^xas
CITY COUNCIL AGENDA FoR� rF
COUNCIL ACTION: Approved As Amended on 12/8/2009 - Ord. No. 18958-12-2009, Amendment
is Highlighted in Yellow
DATE: 12/8/2009 REFERENCE NO.: PZ-2859 LOG NAME: 060065030 VA-09-
012-2
CODE: PZ TYPE: NON -CONSENT PUBLIC NO
NO
SUBJECT: Adopt an Ordinance Vacating an Alley, 17 Feet Wide by 136 Feet Long, Adjacent to Lot 1,
Lot 2 and a Portion of Lot 3, Block 2, J.T. Blanchard Subdivision and an Alley 16 Feet
Wide by 216 Feet Long, Adjacent to Lot 6, C.T. Hodge Addition and Lot 1, Block 2, J.T.
Blanchard Addition Near the Intersection of Hemphill Street and Page Avenue
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to:
1. Adopt an ordinance vacating an alley, 17 feet wide by 136 feet long, adjacent to Lot 1, Lot 2 and a
portion of Lot 3, Block 2, J.T. Blanchard Subdivision and an alley 16 feet wide by 216 feet long, adjacent to
Lot 6, C.T. Hodge Addition and Lot 1, Block 2, J.T. Blanchard Addition, in the City of Fort Worth, Texas; and
2. Waive any and all purchase fee value of the vacated land in accordance with City policy (M&C G-15624).
3. Hunter Equity, LLC and Hunter DG Hemphill, LP, Developers from this project on which the land is
located will receive a refund of the eligible NEZ Funds paid.
DISCUSSION:
On September 1, 2009 the City Council approved Ordinance No. 18780 (M&C-PZ-2835) authorizing the
vacation of the above referenced alleys provided that an agreement between Hunter Equity, LLC or its
affiliates and the City be executed and on file in the City Secretary's Office by October 1, 2009. The
ordinance vacating the alleys became null and void upon the failure by the parties to file an agreement with
the City Secretary's Office by the specified date.
Jones and Carter, on behalf of Hunter Equity, LLC, has renewed the request for the vacation of the above
referenced alleys in order to replat with the adjoining properties to build a new Dollar Store. The City Plan
Commission recommended approval of this request at its meeting on April 22, 2009. An acceptable replat
(FS-09-067) has been received. Any existing utilities will be relocated at the applicant's expense, or
retained within a designated easement, along with an appropriate plat note that no permanent structures
may be constructed or placed thereon.
The City of Fort Worth (City) originally obtained the above mentioned alleys through the platting process.
The city does not own land under or adjacent to the above referenced right-of-way. Since no city funds
have been expended to purchase property or easement rights, collection of the fee value or any portion
thereof is recommended by staff to be waived.
This land is located in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on City
funds.
http://apps.cfwnet.orglcouncil_packet/mc_review.asp?ID=12819&councildate=121812009 1 /7/2010
M&C Review
Page 2 of 2
TO Fund/Account/Centers
Submitted for Citv Manaaer's Office bv:
Oriainatina Department Head:
Additional Information Contact:
ATTACHMENTS
06VA-09-012-2 Ordinance.pdf
Map and Leqal VA-09-012.pdf
Vicinitv Map VA-09-012.pdf
FROM Fund/Account/Centers
Fernando Costa (6122)
Susan Alanis (8180)
Alex Parks (2638)
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=12819&councildate=121812009 1 /7/2010