HomeMy WebLinkAboutContract 62425Date Received: 12/11/2024
Time Received: 11: 00 a.m.
Record Number: PN24-001 78
City Secretary No.: 62425
PUBLIC PROPERTY EASEMENT ENCROACHMENT LICENSE AGREEMENT
TIER If
THIS AGREEMENT is made and entered into by and between THE CITY OF
FORT WORTH, a home rule municipal corporation of Tarrant County, Texas ("City"),
acting by and through its duly authorized City Manager, Assistant City Manager, or
Director of the Development Services Department, and Hulen Mall, LLC, a Delaware
limited liability company ("Licensee"), acting by and through its duly authorized
representative.
RECITALS
WHEREAS, Licensee is the developer and/or owner of certain real property
located at 4800 South Hulen Street, Fort Worth, Texas 76132 ("Property"), being more
particularly described as, Lot 13, Block 1, Hulen Mall Addition, an addition to the City of
Fort Worth, Tarrant County, Texas, as recorded in Deed Records, by Instrument Number
D204357492; and
WHEREAS, the City owns an Access Easement (the "Public Property") adjacent
to the Property, dedicated by plat, depicted on the final plat of the property (FS-93-44),
which plat is recorded in the plat records of Tarrant County as Instrument D 193154627
and;
WHEREAS, Licensee desires to construct, place, and maintain certain
improvements which will encroach in, on, above, or below the Public Property; 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.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
The City, in consideration of the payment by Licensee of the fee set out below and
covenants and agreements hereinafter contained to be Kept and performed by Licensee,
hereby grants permission to Licensee to encroach in, on, above, or below and occupy a
portion of the City's Public Property as described in and at the location shown on Exhibit
"A," but only to the extent shown thereon, for the purpose of constructing, installing, and
Tier II Easement Encroachment Agreement
Page I of 11
Updated 2024
maintaining a monument sign (the "Encroachment"). Upon completion of the
Encroachment, Licensee agrees to be responsible for maintaining the Encroachment within
the Public Property. Licensee shall not expand or otherwise cause the Encroachment to
further infringe in or on the Public Property beyond what is specifically described in
Exhibit "A."
2.
All construction, installation, maintenance, and operation of the Encroachment and
the use or occupancy of the Public Property shall comply with and be performed in strict
compliance with this Agreement and with the charter, ordinances, codes, and policies of
the City, Prior to the construction or installation of the Encroachment, Licensee shall
submit all plans and specifications to the Director of the Development Services Department
or duly authorized representative, Licensee shall not commence construction or
installation of the Encroachment until after the execution of this Agreement.
3.
Licensee, at no expense to the City, shall make proper provisions for the relocation
and installation of any existing or future utilities affected by such Encroachment, if any,
and the use and occupancy of the Public Property, including the securing the approval and
consent of the appropriate utility companies and agencies of the State of Texas and its
political subdivisions. In the event that any installation, reinstallation, relocation, or repair
of any existing or future utility or improvements owned by or constructed by or on behalf
of the public or at public expense is made more costly by virtue of the construction,
maintenance, or existence of the Encroachment and use of Public Property, Licensee shall
promptly (a) pay the City an additional amount equal to such additional cost as determined
by the Director of Transportation and Public Works, the Director of the Water Department,
the Director of the Development Services Department, or their duly authorized
representative (each individually referred to as "Director"); or (b) notify the City the intent
to abate the encroachment, abate the encroachment, and restore the Public Property to the
condition existing prior to the date of this Agreement. following Director's receipt from
Licensee of written notice of Licensee's completion of the restoration of the Public
Property in accordance with this Agreement, Director shall either (i) deliver written
confirmation to Licensee that the Public Property has been restored to the condition
existing prior to the date of this Agreement, or (ii) inform Licensee in writing of any
deficiencies in Licensee's restoration obligations. At such time Licensee receives written
confirmation from the Director that the Public Property has been restored back to the
condition existing prior to the date of this Agreement, this Agreement shall terminate and
be of no further force or effect.
4.
Licensee agrees that City may enter and utilize the Public Property at any time for
any public purpose, including installing, repairing, replacing, or maintaining improvements
"tier 11 Easement .Encroachment Agreement
Page 2 of 11
Updated 2024
to its public facilities or utilities necessary for the health, safety, and welfare of the public.
Except to the extent caused by the City's gross negligence or willful misconduct, the City
shall have no responsibility or liability for any damages related to the Encroachment
resulting from the City's use of the Public Property; however, the City shall make
reasonable efforts to minimize such damage.
5.
Upon termination of this Agreement, Licensee shall, at the option of and at no
expense to the City, remove the Encroachment, restore the Public Property to the condition
existing prior to the date of this Agreement, and receive confirmation from the Director
that Public Property has been restored back to the condition existing prior to the date of
this Agreement. Any such removal of the Encroachment shall be in accordance with then -
existing City regulations and policies. It is understood and agreed to by Licensee that if
this Agreement terminates and Licensee fails to remove the Encroachment and restore the
Public Property, Licensee hereby gives City permission to remove the Encroachment and
any supporting structures from the Public Property, to restore the Public Property, and to
assess a lien on the Property for the costs expended by the City in taking such actions.
6.
In order to defray all costs of inspection and supervision which the City has incurred
or will incur as a result of the construction, maintenance, inspection or management of the
Encroachment and use of Public Property as provided for by this Agreement, Licensee
agrees to pay to City at the time this Agreement is requested an application fee in the sum
of Nine Hundred Dollars ($900.00).
7.
The term of this Agreement shall be for thirty (30) years, commencing on the date
this Agreement is executed by City. However, the City may terminate this Agreement
upon Licensee's noncompliance with any of the terms of this Agreement subject to
Licensee's cure period provided herein. City shall notify Licensee in writing of any such
noncompliance. If Licensee fails to cure the noncompliance (i) within thirty (30) days of
notice from City, or (ii) within such longer period approved by City if the noncompliance
will reasonably take Licensee longer than thirty (30) days to cure and Licensee submitted
a plan of cure including the estimated date of cure completion acceptable to the City, then
the City may terminate this Agreement. However, the City may, at its sole option, allow
the Agreement to remain in effect so long as Licensee has taken reasonable measures to
cure the noncompliance or is continuing to diligently attempt to remedy the
noncompliance.
S.
It is further understood and agreed between the parties hereto that the Public
Property to be used and encroached upon is held by City as trustee for the public; that City
Tier H Easement Encroachment Agreement
Page 3 of 11
Updated 2024
exercises such powers over the Public Property as have been delegated to it by the
Constitution of the State of Texas or by the Texas Legislature; and that City cannot contract
away its duty and its legislative power to control the Public Property for the use and benefit
of the public. It is accordingly agreed that if the governing body of City may at any time
during the term hereof determine in its sole discretion to use or cause or permit the Public
Property to be used for any other public purpose, including but not being limited to
underground, surface, or overhead communication, drainage, sanitary sewerage,
transmission of natural gas or electricity, or any other public purpose, whether presently
contemplated or not, that the parties agree to negotiate in good faith in order to
accommodate both the Encroachment and the public purpose.
U
LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS,
AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS
(COLLECTIVELY, THE "CITY PARTIES") 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 HIND OR CHARACTER, WHETHER REAL OR ASSERTED,
DIRECTLY ARISING OUT OF THE CONSTRUCTION, MAINTENANCE AND
EXISTENCE OF THE ENCROACHMENT BY LICENSEE AND LICENSEE'S
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, EXCEPT TO THE EXTENT CAUSED BY ANY OF THE
CITY PARTIES, AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND
RESPONSIBILITY FOR SUCH CLAIMS OR SUITS.
10.
While this Agreement is in effect, Licensee agrees to furnish City with a Certificate
of Insurance naming City as certificate holder as proof that is has secured and paid for a
policy of public liability insurance covering all public risks related to the proposed use and
occupancy of public property. The amounts of such insurance shall be not less than
$1,000,000
with the understanding and agreement by Licensee that such insurance amounts may be
revised upward in order to comply with any applicable law requiring for such insurance
amounts to be increased for the purposes described herein, and that Licensee shall so revise
such amounts immediately following notice to Licensee of such requirement. Such
insurance policy shall not be canceled without at least thirty (30) days prior written notice
to the Building Official of the City. Licensee shall provide a copy of such Certificate of
Tier lI Easement Encroachment Agreement
Page 4 of 11
Updated 2024
Insurance to the City each year until the termination of this Agreement. Licensee agrees,
binds, and obligates itself to maintain and keep in force such public Iiability insurance at
all times during the term of this Agreement and until the removal of the Encroachment and
restoration of the Public Property. Licensee shall maintain, or cause its contractors and
subcontractors performing any work related to the Encroachment to maintain, all insurance
coverage required herein shall include coverage of all Licensee's contractors and
subcontractors.
11.
Licensee agrees to deposit with the City when this Agreement is executed a
sufficient sum of money to be used to pay necessary fees to record this Agreement in the
real property records of the county in which the Encroachment is located. After being
recorded, the original shall be returned to the City Secretary of the City of Fort Worth.
12.
Licensee agrees to comply fully with all applicable federal, state, and local laws,
statutes, ordinances, codes, and regulations in connection with the Encroachment,
including the construction and maintenance of the Encroachment.
13.
Licensee agrees to pay promptly when due all fees, taxes, or rentals provided for
by this Agreement or by any federal, state, or local statute, law, or regulation.
14.
Licensee covenants and agrees that it shall operate hereunder as an independent
contractor as to all rights and privileges granted hereunder and not as an officer, agent,
servant, or employee of City, and Licensee shall have exclusive control of and the exclusive
right to control the details of its operations, and all persons performing same, and shall be
solely responsible for the acts and omissions of its officers, agents, servants, employees,
contractors, subcontractors, licensees, and invitees. The doctrine of respondeat superior
shall not apply as between City and Licensee, its officers, agents, servants, employees,
contractors, and subcontractors, and nothing herein shall be construed as creating a
partnership or joint enterprise between City and Licensee.
15.
Licensee agrees and acknowledges that this Agreement is solely for the purpose of
permitting Licensee to construct, maintain, and locate the Encroachment over or within the
Public Property and is not a conveyance of any right, title, or interest in or to the Public
Property, nor is it meant to convey any right to use or occupy property in which a third -
Tier II Easement Encroachment Agreement
Page 5 of 11
Updated 2024
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, subject to any cure periods hereunder, City shall be entitled to recover interest
and reasonable attorneys' fees.
17.
The parties agree that the duties and obligations contained in Section 5 shall survive
the termination of this Agreement.
18.
Except as otherwise provided hereunder, 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, which approval shall not be unreasonably conditioned or
withheld, and any attempted assignment without such written approval shall be void.
Notwithstanding the foregoing, so long as Licensee notifies the City in accordance with
this Section 18, Licensee shall be permitted to assign its rights, privileges and duties
hereunder without to the approval of the City to (i) an affiliate of Licensee, (ii) to a lender
of Licensee (or such lender's assignee) in which Licensee assigns its rights under this
Agreement or grants a security interest in this Agreement to Licensee's lender; provided,
however that Licensee's lender or its assignee shall be recognized as Licensee under this
Agreement and shall be entitled to rights of Licensee hereunder if (a) Licensee's lender or
its assignee becomes the owner of the Licensee's interest in the Property through
foreclosure or deed in lieu of foreclosure, (b) Licensee's lender or its assignee notifies City
in writing within sixty (60) days of such foreclosure or deed in lieu of foreclosure and (c)
Licensee's lender or its assignee assumes all of Licensee's rights and obligations
hereunder, and (iii) to a successor of Licensee if Licensee conveys its interest in the
enclosed shopping center located at or adjacent to the Property provided such successor of
Licensee assumes all of Licensees rights and obligations hereunder. In connection with any
assignment permitted hereunder, Licensee (or Licensee's lender or its assignee as provided
above in connection with a foreclosure or deed in lieu of foreclosure), shall notify City in
writing of such assignment within sixty (60) days of such assignment. In the event
Licensee fails to notify the City in writing of such assignment in accordance with this
Section 18, Licensee shall be in default of this Agreement pursuant to which the City may
terminate this Agreement in accordance with Section 7 above, subject to Licensee's notice
and cure periods.
Tier II Easement Encroachment Agreement
Page 6 of 1 I
Updated 2024
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]
Tier II Easement Encroachment Agreement
Page 7 of I I
Updated 2024
EXECUTED to be effective on the date signed by the City's Director of Development
Services Department
City:
CITY OF FORT WORTH
By: Dalton Harrell Pec 10, 202412:25 CST)
D. J. Harrell
Director, Development Services Department
Date: Dec 10, 2024
ATTEST:
Jannette Goodall,
City Secretary
044Up4
4 �-Q
o
�o
duo o=o
o
aa4 rEZAS 4
bIlpa44°
Approved As To Form and Legality
Hye Won Kim
Assistant City Attorney
Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all performance
and reporting requirements.
pebecca Diaile Owell
Rebecca Diane Owen (Dec 10, 202410:05 CST)
Rebecca Owen
Development Services Manager
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Tier II Easement Encroachment Agreement
Page 8 of 11
Updated 2024
Licensee:
Hulen Mal�l �&C
a Delawa� iimited,li wfi
By.11����i
Name: Bria McCarthy
Title: E. cu ive Vice President
Date:
STATE OF—jwv,�[�tiS §
COUNTY OF _4001C §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
i�-Ll,voS , on this day personally appeared juaAg mgxnT�ly , FVp
(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 a
(entity type), and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this q day of
W'6MW. ?- , 2024.
Notary Publie in and for the
State of jWA 161;
OFFICIAL SEAL
ALEXANDRA CONKEY
Notary Public. State of Illinois
I%F Commission No. 0975092
My Commission Expires
July 18, 2027
Tier II Easement Encroachment Agreement
Page 9 of 11
Updated 2024
STATE OF TEXAS §
COUNTY OF TAR ANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
Texas, on this day personally appeared D. J. Harrell, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, as the act and deed of the
City of Fort Worth, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this loth day of
December , 2024.
Wavy 8&Arvd&'5
Wendy Bea rc�slee (Dec 10, 2024 16:24 CST)
Notary Public in and for the State of Texas
'tier I1 Easement Encroachment Agreement
... ..............
o�PRv Pea WENDY L BEARDSLEE
_ Notary Public
* * STATE OF TEXAS
NT9T +P Notary I.D. 13323719-3
My Comm. Exp. July 28, 2025 '
Page 10 of 11
Updated 2024
EXHIBIT A
Depiction and description of the Encroachment
Tier 11 Easement Encroachment Agreement
Page ll of 11
Updated 2024
_ River Rench Boulevard
f — -- -- _
z I I
z r
i
J � ,
0
r0
A
�m
i
■ Z
m
6' 6"
■
m
Z
i
o m
O
G
C
N N
Z
i
(N t77 X
i
T
r
Q � � Ctp�� '4•
3 �1
� J
O
4
z
r
r/
c
s
General Growth
g Q F e Properties, Inc. r; 4, � k a
�
(112 M-M a 4
} a 2
ENLARGED VIEW
6"= 100'
11L
ff
2'-61' X 6'-G" CONCRETE
000 SIGN BASE/PAD
16.25 SQ.FT.
0 INSTALLER SITE PLAN
Z—
zsapoo :F
"-ET�RGED.VISW-'
L
-!T7 iNN-1H
T T 4 KHh w'
.. . .... ... ..
7-7
j
0422986Ar3
Sheet 2 of 4
HULEN MALL
480C 5 HULEN STE ZSO
Fr WOM TX
A=mnt WF
Rep.
Designer GD
Date 912612023
R2 ACV6124"dd perm she;
,ddA-dvEo
ALPv XW AfMd
R3 SUM 9/20124,e d—
pl—
CHANDLER
N-i
FINAL ELECTRICAL
CONNECTION BY
CV5TOMER
5'-6.5" (SS.59
57.5 " . S. , 21" 21"
I' 1
PROPERTY SIDE STREETSIDE STREETSIDE PROPERTYSIDE END VIEW ENDVIEW NIGHT VIEW
OPPOSITE VIEW STREETSIDE PROPERTYSIDE
4 D/F TENANT MONUMENT W/ DUAL -LIT CUS SCALE: 1/2" =V-0"
ONE III REQUIRED - MANUFACTURE & INSTALL
ALUMINUM PYLON SLEEVE WITH FAUX SPLIT STONE FACADE ON NEW FOUNDATION AND SUPPORT JO BE DETERMINED PER ENGINEERING)
DUAL FACE L[T/BACK LIT FABRICATED ALUM. CHANNEL LETTERS W/ WHITE LED LIGHTING, WHITE PAINTED FACES, AND RETURNS MOUNTED TO SIGN FACES
W/ 2" ALUM. STAND OFFS - SEE SECTION DETAIL FOR FULLSPECS
EXISTING FOUNDATION WILL NEED TO BE REMOVED
GREY/BLUE/BROWNSTONE
® GOLDEN/RED/BROWN STONE
04ZZ99GAr3
Sheet 3 of 4
HULEN MALL
4800 S HULEN STE 250
FE WORTH TX
Accomtt WF
Rep.
Designer GD
Date 9/26/2023
R1 ES SA 10 Dian added
R2_4"jb/24:a4
d perm site;
idd A end clew
— — W4/24
93 vm 9/20124 revls4tl sde
plans
S CHANDLER
H.aa4�� rw
An Amen�e v r
c.orc�a
FINAL ELECTRICAL
CONNECTION BY
CUSTOMER
rAmml�l CV ALVIYlllvVm bmm"l
LETTERS PAINTED SATIN WHCTE
FINISHED LIGHT -ENHANCING W
1" WHITE JEW ELn RETAINERS
N2283 WHITE ACRYLIC PACEI
CLEAR POLYCARBONATE BACKS
w/ DIFFUSER FILM
GE TETRA MAX WHITE LED FACT
HALO ILLUMINATION
JACKETED LED 2NDARY WIRE TF
1/2" FLEXIBLE METALLIC CONDL
LED POWER SUPPLY IN GALVAN'
BOX BEHIND WALL
MOUNT 1" OFF FASCIA w/ NON
CORROSIVE 1/4" DIA. RIVNUTS
AS RECtD
J
1/4" DIA. WEEP HOLES IN LOW
POINTS OF LETTERS w/ ALUMINUM
LIGHT SCREENS @ EACH WEEP
HOLE TO PREVENT LIGHT LEAK'
O DUAL —LIT CHANNEL LETTER SECTION
REMOTE POWER SUPPLIES
0422986Ar3
Sheet 4 of 4
HULEN MALL
4200 S HULEN STE 250
FT WORTH TX
Aunt WF
Rep.
Designer (ID
Date 9/25/202S
RI ES 812 sne plan added
R2-AC-16/24 add perm sire:
add A end view
AW NM,!/a/tA
Rd SDM 9/20/24 mvfscd site
plan:
S CHANDLER
wvon.l••L'� w..�1•'waum
Mnaapwenm �w"�n�Siwm.
musnn..vw�nn
An Mwnb SL, NM�O iy�yyl
Gmry�
upjru �wnn�iwm
FINAL ELECTRICAL
CONNECTION BY
CUSTOMER