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HomeMy WebLinkAboutContract 32393 LTARY, Z No &_n CONSENT TO ASSIGNMENT OF CONSENT (ENCROACHMENT) AGREEMENT This CONSENT TO ASSIGNMENT OF CONSENT (ENCROACHMENT) AGREEMENT ("Consent") is made and entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation organized under the laws of the State of Texas; BCM/CHI WORTHINGTON OWNER, L.P. ("Assignor"), a Delaware limited partnership; and DRH WORTHINGTON OWNER LIMITED PARTNERSHIP ("DRH"), a Delaware limited partnership. The following introductory provisions are true and correct and form the basis of this Consent: A. As of November 10, 1997 the City and Worthington Operating Company entered into that certain Consent Agreement on file in the City Secretary's Office as City Secretary Contract No. 23286, which was subsequently assigned to BCM/CHI Worthington, Inc. by mesne assignments (as assigned, the "Encroachment Agreement"). Under the Encroachment Agreement, the City permitted Worthington Operating Company to certain encroachments in the City's public right-of- way as part of Worthington Operating Company's operation of the Hotel located at 200 Main Street in the City,which is currently operating as the Renaissance Worthington. B. BCM/CHI Worthington, Inc. subsequently assigned all right, title and interest in the Encroachment Agreement to Assignor. C. Assignor has sold the Hotel Property and all improvements thereon to DRH and to assign the Encroachment Agreement to DRH. The City is willing to consent to an assignment of the Encroachment Agreement to DRH solely in accordance with this Consent. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City, Assignor and DRH agree as follows: 1. The City hereby consents to an assignment by Assignor to DRH or an Affiliate of DRH of all right, title and interest granted to Assignor by the Encroachment Agreement, effective as of the date on which the City, Assignor and DRHC have all executed this Consent ("Effective Date"). For purposes of this Consent, "Affiliate" shall mean (i) any entity in which a majority of the ownership consists of individuals, partnerships, trusts (or their individual partners or beneficiaries) or other entities included, whether by legal title or beneficially, in the present ownership of DRH or (ii) any entity which has at least a fifty-one percent (51%) direct or indirect ownership interest in DRH or any entity in which DRH has at least a fifty-one percent (51%) direct or indirect ownership interest. Consent to Assignment of Consent(Encroachment)Agreement by BCM/CHI Worthington Owner,L.P.to DRH Worthington Owner,L.P. 2. The City consents to such assignment expressly upon the promise and covenant by DRH, and DRH hereby promises and covenants to the City, that as of the Effective Date DRH will comply with all duties and obligations of Assignor set forth in the Encroachment Agreement. 3. DRH understands and agrees that no act or omission of Assignor, whether before or after the Effective Date, will serve to mitigate any breach or default under the Encroachment Agreement. 4. Notwithstanding the foregoing, the City hereby certifies to Assignor and DRH that as of the date of execution of this Consent by the City: 4.1. The Encroachment Agreement is in full force and effect and has not been modified, supplemented or amended in any way. 4.2. To the actual knowledge of the undersigned Assistant City Manager, Assignor is not in default in the performance of any covenant, agreement, obligation or condition contained in the Encroachment Agreement. 4.3. No breach or default has occurred, nor has the undersigned Assistant City Manager given Assignor notice of any event which, with the giving of notice or the passage of time, or both, would constitute an event of default, which has not been cured. 4.4. To the actual knowledge of the undersigned Assistant City Manager, the City has not consented to an assignment, sale or transfer of Assignor's interest in and to the Encroachment Agreement, other than that set forth in this Consent. 5. The City acknowledges that Assignor, DHR, Wachovia Bank, National Association and their respective successors and assigns may rely on the provisions of Section 4 above. Notwithstanding any such reliance, by execution of this Consent, the City does not waive any of its governmental powers or rights of sovereign immunity. The provisions and conditions of this Consent are solely for the benefit of the parties hereto and any Affiliate of DRH to whom this Agreement specifically may be assigned, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 6. All terms in this Consent that are capitalized but not defined shall have the meanings assigned to them in the Agreement. EXECUTED in multiples as of the last date indicated below: Consent to Assignment of Consent(Encroachment)Agreement by BCM/CHI Worthington Owner,L.P.to DRH Worthington Owner,L.P. CITY OF FORT WORTH: ATTEST: i . By: By: Dale Fisseler Marty Hendrix Assistant City Manager City Secretary Date: 0 APPROVED AS TO FORM AND LEGALITY: By: YJ Peter Vaky Assistant City Attorney M&C: none required BCM/CHI WORTHINGTON OWNER, L.P.: By: BCM/CHI Worthington SPC, Inc., a Maryland corporation and Assignor's sole general partner: By: , Name: Title: Date: DRH WORTHINGTON OWNER LIMITED PARTNERSHIP: By: DRH Worthington Owner General, LLC, a Delaware limited liability company and its general partner By: Name: Title: Date: Consent to Assignment of Consent(Encroachment)Agreement by BCM/CHI Worthington Owner,L.P.to DRH Worthington Owner,L.P. CITY OF FORT WORTH: ATTEST: By: By: Dale Fisseler Marty Hendrix Assistant City Manager City Secretary Date: APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Assistant City Attorney M&C: none required BCM/CHI WORTHINGTON OWNER,L.P.: By: BCM/CHI Worthington SPC, Inc., a Maryland corporation and Assigno s general partner: By: r�' Name: Title: Date: DRH WORTHINGTON OWNER LIMITED PARTNERSHIP: By: DRH Worthington Owner General, LLC, a Delaware limited liability company and its general partner By: Name: Title: Date: Consent to Assignment of Consent(Encroachment)Agreement by BCM/CHI Worthington Owner,L.P.to DRH Worthington Owner Limited Partnership CITY OF FORT WORTH: ATTEST: By: By: Dale Fisseler Marty Hendrix Assistant City Manager City Secretary Date: APPROVED AS TO FORM AND LEGALITY: By: Peter V aky Assistant City Attorney M&C: none required BCM/CHI WORTHINGTON OWNER,L.P.: By: BCM/CHI Worthington SPC, Inc., a Maryland corporation and Assignor's sole general partner: By: , Name: Title: Date: DRH WORTHINGTON OWNER LIMITED PARTNERSHIP: By: DRH Worthington Owner General, LLC, a Delaware limited liability company and its general partner By ame: Zl Title: Vif e _W Date: Consent to Assignment of Consent(Encroachment)Agreement by BCM/CHI Worthington Owner,L.P. to DRH Worthington Owner Limited Partnership 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 Dale Fisseler, Assistant City Manager of the City of Fort Worth, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he executed the same as the act of the City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 2005. Notary Publ c in and for the State of Texas KATHY F.DURHAM MY COMMISSION EXPIRES January 24 2008 PON Consent to Assignment of Consent(Encroachment)Agreement by BCM/CHI Worthington Owner,L.P.to DRH Worthington Owner,L.P. STATE OF_ p p,� �( ��l� § COUNTY OF C�o � �}©�1L § BEFORE ME, the undersigned authority, a Notary Public in and for the State of (� 3"�c)WLon this day personally appeared 2or,11� �<,P C u%'4 of BCM/CHI Worthington SPC, Inc. a Maryland corporation and sole general partner of BCM/CHI Worthington Owner, L.P., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of BCM/CHI Worthington Owner, L.P. and that s/he executed the same as the act of BCM/CHI Worthington Owner, L.P. for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of Q uI , 2005. Notary Public in and for the State of REGMNotay .�.afN.�„l York No."76e?e wed In wester County Commission Expires Nov.30,2006 Consent to Assignment of Consent(Encroachment)Agreement by BCM/CHI Worthington Owner,L.P.to DRH Worthington Owner Limited Partnership STATE OF § COUNTY OF § EF RE ME, the undersigned authority] a Notary Public in an for the State of All A" on this day personally appeare of Worthington Owner General, LLC. a Delaw li ted liability company and sole general partner of DRH Worthington Owner Limited Partnership, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of DRH Worthington Owner Limited Partnership and that s/he executed the same as the act of DRH Worthington Owner Limited Partnership for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 2005. %0Juunun11,��,. NOTAR}. y u li in and for the State of Anne F. Christiansen MGro oJ�.`� NOTARY PUBLIC 1''11111t111100 Montgomery County, Maryland My Commission Expires Dec.2,2008 Consent to Assignment of Consent(Encroachment)Agreement by BCWCHI Worthington Owner,L.P.to DRH Worthington Owner Limited Partnership