HomeMy WebLinkAbout066059 - General - Contract - NS Retail Holdings, LLCDate Received: 10/20/2026
Time Received: 10:25 a.m.
Record Number: PN26-00004
City Secretary No.: 66059
PUBLIC PROPERTY EASEMENT ENCROACHMENT LICENSE AGREEMENT
TIER II
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 NS Retail Holdings, LLC, a
Delaware limited liability company ("Licensee"), acting by and through its duly
authorized Senior Vice President, Chad Shafer.
RECITALS
WHEREAS, Licensee is the owner of the real property located at 10948 Park
Vista Boulevard, Fort Worth, Texas 76244 ("Property"), being more particularly
described as, being Lot 4, in Block 1, of GBT Business Park, and an addition to the City
of Fort Worth, Tarrant County, Texas, as recorded in Deed Records, by Instrument
Number D225225107; and
WHEREAS, the City owns an underground sanitary sewer line easement (the
"Public Property") adjacent to the Property, dedicated to the City in an easement filed in
the Tarrant County Deed Records as Instrument Number D204196824, as depicted on the
final plat of the property (FS -25-036), which plat is recorded in the plat records of
Tarrant County as Instrument D225171167; 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: OFFICIAL RECORD
AGREEMENT CITY SECRETARY
FT. WORTH, TX
1.
The City, in consideration of the payment by Licensee of the fee set out below
and covenants and agreements hereinafter contained to be kept and performed by
Licensee, hereby grants permission to Licensee to encroach in, on, above, or below and
occupy a portion of the City's Public Property as described in and at the location shown
on Exhibit "A," but only to the extent shown thereon, for the purpose of constructing,
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installing, and maintaining a private storm drain (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 nor make any use of the Public Property
until after the execution of this Agreement.
3.
Licensee, at no expense to the City, shall make proper provisions for the
relocation and installation of any existing or future utilities affected by such
Encroachment and the use and occupancy of the Public Property, including 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 pay to City an additional amount equal to such additional
cost as determined by the Director of Transportation and Public Works, the Director of
the Water Department, the Director of the Development Services Department, or their
duly authorized representative.
4.
Licensee agrees that City may enter and utilize the Public Property at any time for
any public purpose, including installing, repairing, replacing, or maintaining
improvements to its public facilities or utilities necessary for the health, safety, and
welfare of the public. The City shall have no responsibility or liability for any damages
related to the Encroachment resulting from the City's use of the Public Property;
however, the City shall make reasonable efforts to minimize such damage.
5.
Upon termination of this Agreement, Licensee shall, at the option of and at no
expense to the City, remove the Encroachment and restore the Public Property to a
condition acceptable to the Director of Transportation and Public Works, the Director of
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the Water Department, the Director of the Development Services Department or their
duly authorized representative. Any such removal of the Encroachment shall be in
accordance with then -existing City regulations and policies. It is understood and agreed
to by Licensee that if this Agreement terminates and Licensee fails to remove the
Encroachment and restore the Public Property, Licensee hereby gives City permission to
remove the Encroachment and any supporting structures from the Public Property, to
restore the Public Property, and to assess a lien on the Property for the costs expended by
the City in taking such actions.
6.
In order to defray all costs of inspection and supervision which the City has
incurred or will incur as a result of the construction, maintenance, inspection or
management of the Encroachment and use of Public Property as provided for by this
Agreement, Licensee agrees to pay to City at the time this Agreement is requested an
application fee in the sum of One Thousand Twelve Dollars and Fifty Cents
($1012.50).
7.
The term of this Agreement shall be for thirty (30) years, commencing on the
date this Agreement is executed by City. However, the City may terminate this
Agreement upon Licensee's noncompliance with any of the terms of this Agreement.
City shall notify Licensee in writing of any such noncompliance and if Licensee does not
cure the noncompliance within thirty (30) days of notice from City, the City may
terminate this Agreement. However, the City may, at its sole option, allow the Agreement
to remain in effect so long as Licensee has taken reasonable measures to cure the
noncompliance or is continuing to diligently attempt to remedy the noncompliance.
8.
It is further understood and agreed between the parties hereto that the Public
Property to be used and encroached upon is held by City as trustee for the public; that
City exercises such powers over the Public Property as have been delegated to it by the
Constitution of the State of Texas or by the Texas Legislature; and that City cannot
contract 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.
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9.
LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS
FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY
DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO
ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER,
WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION
WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION,
MAINTENANCE, OCCUPANCY, USE, EXISTENCE, OR LOCATION OF THE
ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT
CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, LICENSEES, ELECTED OFFICIALS, OR INVITEES OF
THE CITY; AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND
RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. LICENSEE SHALL
LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL
INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CITY
PROPERTY ARISING OUT OF OR IN CONNECTION WITH THE
ENCROACHMENTS AND ANY AND ALL ACTS OR OMISSIONS OF
LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES.
10.
While this Agreement is in effect, Licensee agrees to furnish City with a
Certificate of Insurance naming City as certificate holder as proof that it has secured and
paid for a policy of public liability insurance covering all public risks related to the
proposed use and occupancy of public property as located and described in Exhibit "A."
The amounts of such insurance shall be not less than
$1,000,000
with the understanding and agreement by Licensee that such insurance amounts may be
revised upward at City's option and that Licensee shall so revise such amounts
immediately following notice to Licensee of such requirement. Such insurance policy
shall not be canceled or amended without at least thirty (30) days prior written notice to
the Building Official of the City. A copy of such Certificate of Insurance is attached as
Exhibit "B" and incorporated herein for all purposes. Licensee agrees, binds, and
obligates itself and its successors and assigns to maintain and keep in force such public
liability insurance at all times during the term of this Agreement and until the removal of
the Encroachment and restoration of the Public Property. All insurance coverage
required herein shall include coverage of all Licensee's contractors and subcontractors.
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11.
Licensee agrees to deposit with the City when this Agreement is executed a
sufficient sum of money to be used to pay necessary fees to record this Agreement in the
real property records of the county in which the Encroachment is located. After being
recorded, the original shall be returned to the City Secretary of the City of Fort Worth.
12.
Licensee agrees to comply fully with all applicable federal, state, and local laws,
statutes, ordinances, codes, and regulations in connection with the construction,
operation, and maintenance of the Encroachment and use of the Public Property.
13.
Licensee agrees to pay promptly when due all fees, taxes, or rentals provided for
by this Agreement or by any federal, state, or local statute, law, or regulation.
14.
Licensee covenants and agrees that it shall operate hereunder as an independent
contractor as to all rights and privileges granted hereunder and not as an officer, agent,
servant, or employee of City, and Licensee shall have exclusive control of and the
exclusive right to control the details of its operations, and all persons performing same,
and shall be solely responsible for the acts and omissions of its officers, agents, servants,
employees, contractors, subcontractors, licensees, and invitees. The doctrine of
respondeat superior shall not apply as between City and Licensee, its officers, agents,
servants, employees, contractors, and subcontractors, and nothing herein shall be
construed as creating a partnership or joint enterprise between City and Licensee.
15.
Licensee agrees and acknowledges that this Agreement is solely for the purpose
of permitting Licensee to construct, maintain, and locate the Encroachment over or within
the Public Property and is not a conveyance of any right, title, or interest in or to the
Public Property, nor is it meant to convey any right to use or occupy property in which a
third -party may have an interest. Licensee agrees that it will obtain all necessary
permissions before occupying such property.
16.
In any action brought by the City for the enforcement of the obligations of the
Licensee, City shall be entitled to recover interest and reasonable attorneys' fees.
Tier II Easement Encroachment Agreement Page 5 of 12
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17.
The parties agree that the duties and obligations contained in Section 5 shall
survive the termination of this Agreement.
18.
Licensee covenants and agrees that it will not assign all or any of its rights,
privileges, or duties under this Agreement without the written approval of the City, and
any attempted assignment without such written approval shall be void. In the event
Licensee conveys the Property, Licensee may assign all of its rights and obligations under
this Agreement to the new owner of the Property, and Licensee shall be deemed released
from its duties and obligations hereunder upon City's approval in writing of such
assignment, which approval shall not be unreasonably conditioned or withheld.
Foreclosure by a secured lender of Licensee or assignment to a secured lender by
Licensee in the event of default or otherwise shall not require City approval provided that
said lender notifies City in writing within sixty (60) days of such foreclosure or
assignment and assumes all of Licensee's rights and obligations hereunder. However, no
change of ownership due to foreclosure or assignment to any secured lender of Licensee
shall be effective as to City unless and until written notice of such foreclosure or
assignment is provided to City.
19.
Prior to the end of the term of this Agreement, Licensee may submit a new
encroachment application to the City. The City will not unreasonably withhold or delay
approval of such application provided that the Encroachment follows the then current
City codes and compliance.
20.
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.
21.
This Agreement shall be binding upon the parties hereto and their successors and
assigns.
22.
This Agreement may be executed in multiple counterparts, each of which shall be
considered an original, but all of which shall constitute one instrument.
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[SIGNATURES APPEAR ON FOLLOWING PAGE]
Tier II Easement Encroachment Agreement Page 7 of 12
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EXECUTED to be effective on the date signed by the City's Director of
Development Services Department
City:
CITY OF FORT WORTH
Dalton Harrel (Oct 19, 2026 19:09:50 CDT)
D. J. Harrell
Director, Development Services Department
Date:
10/19/2026
ATTEST: �oFF°Rrwaad
09-0_0
/<atiupan°nTF6p5.do
Approved As To Form and Legality
Jannette Goodall, Tayler Canton
City Secretary 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.
Kandice Merrick
Contract Compliance Manager
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Tier II Easement Encroachment Agreement Page 8 of 12
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Licensee:
NS Retail Holdings, LLC
A Delaware limited liability company
By:
Name: Chad Shafer
Title: Senior Vice President
Date: jfd !' /,Z02�p
STATE OF TC'GAS §
COUNTY OF P4L4 §
BEFORE ME, the undersigned authority, a Notary Public in and for the
�Sttaateof
on this day personally appeared Chad Sho. er,
SQCUOY VI OZ ?YS)t (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
NS ( II) Ho ld it s , a D1jaWAr Lit (entity type), and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 20 day of
'412I1 I , 2026.
Notary Public in and for the
State of_________________
Tier II ROW Encroachment Agreement
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KELSI BABCOCK
Notary ID #135539703
My Commission Expires
December 15, 2029
Page 8 of 11
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
Texas, on this day personally appeared D. J. Harrell, known to me to be the person
whose name is subscribed to the foregoing instrument, and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, as the act and
deed of the City of Fort Worth, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 19th day of
October . 2026.
Notary Public in and for the State of Texas
Audrey Lea Wallace
my COMMISalvn Explrve
f 811012028
N 01afy I D 135 022586
Tier II Easement Encroachment Agreement Page 10 of 12
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EXHIBIT A
Depiction and description of the Encroachment
Tier II Easement Encroachment Agreement Page 11 of 12
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Description of an
Encroachment
BEING a tract of land situated in the Jesse Billingsley Survey, Abstract Number 70, City of Fort
Worth, Tarrant County, Texas, and being a portion of Lot 4, Block 1, GTB Business Park, an
addition to the City of Fort Worth, recorded in Instrument Number D225171167, County
Records, Tarrant County, Texas, and being more particularly described by metes and bounds as
follows:
COMMENCING at a 5/8 inch iron rod, found at the northwest corner of said Lot 4, and being
in the east right-of-way line of Park Vista Boulevard, (a Variable width right-of-way), recorded
in Dedication Deed to the City of Fort Worth, recorded in Instrument Number D216164879, said
County Records, from which an X -Cut found in said east right-of-way line and being in the west
line of said Lot 4, bears S 22°17'54"W, 98.49 feet;
THENCE N 89°37'03"E, 235.49 feet, with the north line of said Lot 4, from which a Concrete
Sandstone Monument, found in said north line and being the southeast corner of that tract of land
described by deed to Keller TX Storage West, LLC, recorded in Instrument Number
D225104930, said County Records, bears N 89°37'03"E, 74.26 feet;
THENCE S 00°22'57"E, 183.86 feet, departing said north line, over and across said Lot 4, to
the POINT OF BEGINNING, being in the northeast line of that Sanitary Sewer Easement,
recorded in Instrument Number D204196824, said County Records;
THENCE S 44°27'25"E, 15.00 feet, with said northeast line;
THENCE S 45°17'30"W, 15.00 feet, to the southwest line of said Sanitary Sewer Easement;
THENCE N 44°27'25"W, 15.00 feet, with said southwest line;
THENCE N 45°17'30"E, 15.00 feet, to the Point of Beginning and containing 225 square feet
of land more or less.
"Integral parts of this document"
1. Description
2. Exhibit
Westwood Job No. 0057442 Tracking No. ACF# 9246
GTB Business Park January 12, 2026
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EXHIBIT B
Certificate of Insurance
Tier II Easement Encroachment Agreement Page 12 of 12
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FORTWORTH.
City Secretary's Office
Contract Routing & Transmittal Slip
Contractor's Name: NS RETAIL HOLDINGS, LLC
Subject of the Agreement
Tier II Easement Encroachment
M&C Approved by the Council? * Yes ❑ No
If so, the M&C must be attached to the contract.
Is this an Amendment to an Existing contract? Yes ❑ No 8
If so, provide the original contract number and the amendment number.
Is the Contract "Permanent"? *Yes ❑ No 8
If unsure, see back page for permanent contract listing.
Is this entire contract Confidential? *Yes ❑ No 8 If only specific information is
Confidential, please list what information is Confidential and the page it is located.
Certificate of Insurance
Effective Date: Date Director signs
If different from the approval date.
Expiration Date:
30 years from execution
If applicable.
Is a 1295 Form required? * Yes ❑ No 8
*If so, please ensure it is attached to the approving M&C or attached to the contract.
Project Number: If applicable.
*Did you include a Text field on the contract to add the City Secretary Contract (CSC)
number? Yes 8 No ❑
Contracts need to be routed for CSO processing in the following order:
1. Katherine Cenicola (Approver)
2. Jannette S. Goodall (Signer)
3. Allison Tidwell (Form Filler)
*Indicates the information is required and if the information is not provided, the contract will be
returned to the department.