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HomeMy WebLinkAboutContract 47206 (2)CSC No. 46781 Consent to Assignment Right of Way Encroachment Agreement RECEIVED • Nov -9 2015 CITY Or FORT vio11 P.' :d..mad a la CITY SECRETARY api r--) CONTRACT NO. 7 VC! r 1 ASSIGNMENT AND CONSENT OF ENCROACHMENT AGREEMENT City Secretary Contract No. 46781 THIS ASSIGNMENT OF ENCROACHMENT AGREEMENT ("Assignment") is made and entered into as of this / day of November, 2015, by and between the CITY OF FORT WORTH, a Texas home -rule municipal corporation ("City"), PHOENIX-FWSOUTH, LLC, a Texas limited liability company ("Assignor"), and VR PHOENIX HOLDINGS LIMITED PARTNERSHIP, a Delaware limited partnership ("Assignee"). (Sometimes City, Assignor and Assignee are referred to individually as a "Party" and collectively as the "Parties"). WITNESSETH: WHEREAS, the City entered into an Easement Encroachment License Agreement, City Secretary Contract No. 46781 (the "Encroachment Agreement") with Assignor, the owner of certain real property more particularly described in the attached Legal Description (the "Property") located adjacent to or near the City's right-of-way on which the encroachments are located. The encroachments are more particularly described in the Encroachment Agreement and are sometimes called therein and herein the "Improvements"; WHEREAS, the Encroachment Agreement, filed on July 2, 2015 and recorded as Instrument No. 00014457 in the Real Property Records of Tarrant County, Texas, is attached hereto as Exhibit "A" and incorporated herein by reference as if set forth in full; WHEREAS, the description of the Improvements in the body of the Encroachment Agreement inadvertently limited the use of the encroachment area for an office building and activities related thereto and did not include the use of the encroachment area for an apartment property and activities related thereto, which use was as shown on the survey plat of the Property; WHEREAS, Assignor has sold the Propert�I�AJsZgng�^o�nl November 10, 2015 as evidenced by a deed recorded as Instrument No. rJ� in the Real Property Records of Tarrant County, Texas; and WHEREAS, Assignor desires to assign the Encroachment Agreement to Assignee. AGREEMENT: NOW, THEREFORE, for and in consideration of the above and foregoing premises and the mutual covenants, terms and conditions herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: 1. Assignor hereby assigns, transfers and conveys all rights and interests and delegates it duties and o li ations under theEncroachment Agreement to Assignee. �- 4.t 3 tt 333Z, (P 1 1 �Q�rIT .� � . OFFMAL RECORD CITY SI$UOARY FT, WORTillTX Page 1of8 Rev 03/2015 Page 1 of 10 02152-54510 11/1012015 4:12 PM PGS 10 Fee: $52.00 Electronically'Recorded by Tarrant County Clerk in official Public Records Li, • CM( SECRicrARY COMT CT NO. Submitter: SIMPLIFILE O " cc-ti (in. Mary Louise Garcia ASSIGNMENT AND CONSENT OF ENCROAC T AGREEMENT City Secretary Contract No. 46781 • TEEN ASSIGNMENT OF ENCROACHMENT AGREEMENT ("Assignment") is made and entered into as of this / 0 day of November, 2015, by and between the CITY OF FORT WORTH, a Texas home -rule municipal corporation ("City"), PHOENIX-FWSOUTH, LLC, a Texas limited liability company ("Assignor"), and VR PHOENIX HOLDINGS LIMITED PARTNERSHIP, a Delaware limited partnership ("Assignee"). (Sometimes City, A.ssignor and Assignee are referred to individually as a "Party" and collectively as the "Parties"). WITNESSETR: WHEREAS, the City entered into an Easement Encroachment License Agreement, City Secretary Contract No.. 46781 the "Encroachment Agreement") with Assignor, the owner of certain real property more particularly described in the attached Legal Description (the "Property") located adjacent to or near the City's right-of-way on which the encroachments are located_ The encroachments are more particularly described in the Encroachment Agreement and are sometimes called therein and herein the "Improvements"; WHEREAS, the Encroachment Agreement, filed on July 2, 2015 and recorded as Instrument No. 00014457 in the Read. Property Records of Tarrant County, Texas, is attached hereto as Exhibit "A" and incorporated herein by reference as if set forth in full; WHEREAS, the description of the Improvements in the body of the Encroachment Agreement inadvertently limited the use of the encroachment area for an office building and activities related thereto and did not include the use of the encroachment area for an apartment property and activities related thereto, which use was as shown on the survey plat of the Property; WHEREAS, Assignor has sold the Property to Assi z�re on November 10, 2015 as evidenced by a deed recorded as Instrument No. D�i�Z�`t�-�'^D) in the Real Property Records of Tarrant County, Texas; and WHEREAS, Assignor desires to assign the Encroachment Agreement to Assignee. • AGREEMENT: NOW, THEREFORE, for and in consideration of the above and foregoing premises and the mutual covenants, teims and conditions herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: 1. Assignor hereby assigns, transfers and conveys all rights and interests and delegates it duties and o li ations under thc Encroachment Agreement to Assignee. ( 3SL AlT CSC No. 46781 Consent to Assignment Right of Way Encroachment Agreement OFFICIAL RECORD CITY SECRETARY FT, WORTH, TX Page 1 of 8 Rev 03/2015 2. Assignee hereby accepts the Assignment granted herein, and assumes all of Assignor's rights, duties and obligations arising under the Encroachment Agreement. 3. Assignor has full right, power and authority to enter into this Assignment, to make the representations set forth herein, and to carry out Assignor's obligations hereunder. Assignee has the full right, power and authority to enter into this Assignment, to make the representations set forth herein, and to carry out Assignee s obligations hereunder. 4. The effective date of this Assignment shall be the date of its execution by the City (the "Effective Date"). All rights duties and obligations under the Encroachment Agreement arising, accruing or relating to the period before the Effective Date are allocated to Assignoi and all rights, duties and obligations arising, accruing of relating to the period thereafter shall be allocated to Assignee. 5. Except as otherwise expressly set forth in this Assignment, Assignor will be discharged from any and all further obligations under the Encroachment Agreement as of the Effective Date. 6. Assignor represents warrants and covenants with City and Assignee that as of the Effective Date, Assignor is not in default of any of its obligations contained in the Encroachment Agreement. 7 City hereby consents to this Assignment upon the terms and conditions set forth herein. Unless and until City has executed this Assignment, it is of no effect. The consent granted herein should not be construed as consent to any further assignment The failure or delay of City in seeking to enforce any provision of the Encroachment Agreement or this Assignment shall not be deemed a waiver of rights or remedies that City may have or a waiver of any subsequent breach of the terms and provisions therein or herein contained. City hereby confirms that the reference in Section 6 of the Encroachment Agreement to "use of the hncroachment on the Property for an office building or activities related thereto' is modified to read "use of the Encroachment on the Property for an apartment project or an office building or activities related thereto.' 8. Any notice given by any Party to another Party must be in writing and shall be effective upon receipt when (i) sent by U.S. mail with property postage, certified mail return receipt requested or by a nationally recognized overnight delivery service, and (ii) addressed to the other Party at the address set out below or at such other address as the receiving Party designates by proper notice to the sending Party. City Planning and Development Department 1000 Throckmorton Street Fort Worth TX 76102 Attention• Director CSC No. 46781 Consent to Assignment Right of Way Encroachment Agreement Page 2 of 8 Rev 03/2015 Assignor Phoenix — FWSouth, LLC 200 Man 0 War Ct Burleson, Texas 76028 Attn: Stephen M Eisner Assignee VR Phoenix Holdings Limited Partnership 38 Leek Crescent, Suite 202 Richmond Hill, ON L4B 4N8 Attn.: Andrew Stewart 9. Except as herein otherwise provided, this Assignment will be binding upon and inure to the benefit of the Parties and their respective successors and assigns. 10 Assignee shall cause this Assignment to be filed of record at Assignee's expense in the Real Property Records for Tarrant County, Texas. 11. The Certificate of Insurance for the Assignor attached as Exhibit `B" to the Encroachment Agreement is hereby deleted and replaced with the attached Certificate of Insurance from the Assignee as Exhibit ' B" Revised /2015. 12. All terms and conditions of the Encroachment Agreement not amended herein remain unaffected and in full force and effect are binding on the Parties and are hereby ratified by the Parties Capitalized terms not defined herein shall have meanings assigned to them in the Encroachment Agreement. 13. This Assignment may be executed in multiple counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same document which may be evidenced by one counterpart. [SIGNATURES APPEAR ON FOLLOWING PAGES] CSC No. 46781 Consent to Assignment Right of Way Encroachment Agreement Page 3 of 8 Rev 03/2015 ASSIGN R. PHOENIX — FWSOUTH, LLC, a Texas limited liability company By: FWS EMD, LLC, a Texas limited liability company, Manager By: By: Eisner -McConnell Development, LLC, a Texas limited liability company, Manager &A:Ler Stephen M. Manager STATE OF TEXAS § COUNTY OF This instrument was acknowledged before me on November ' . "2015, by Stephen M. Eisner, Manager of Eisner -McConnell Development, LLC, a Texas limited liability company, Manager of FWS EMD, LLC, a Texas limited liability company and Manager of PHOENIX — FWSOUTH, LLC, a Texas limited liability company, on behalf of said limited lia ityompanies. [NOTARIAL SEAL] STEFANIE M?ATEWS Notary PcbUUc J 09 / State cf Texas ,e Comm. Expires 7/20 0 6 (Lr ;!a y Public,\State of Texas OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX CSC No. 46781 Consent to Assignment Right of Way Encroachment Agreement Page 4 of 4 Rev 03/2015 ASSIGNEE: VR PHOENIX HOLDINGS LIMITED PARTNERSHIP, a Delaware limited partnership By: VR Phoenix GP LLC, a Delaware limited liability company, is sole GenPartner By: Name: Andrew Steivdatr Title: Authorized Person STATE OF TEXAS COUNTY OF RABBIS § This instrument was acknowledged before me by Andrew Stewart, Authorized Person of VR Phoenix GP LLC, a Delaware limited liability company, the sole general partner of VR PHOENIX HOLDINGS LIMITED PARTNERSHIP, a Delaw November 6 , 201 5 . [NOTARIAL SEAL] 1 'Cr •• •.t .6l • • OM 0 .. ►0F YVONNE MONICA HONDROS Notary Public, State of Texas My Commission Expires November 25, 2018 imite. • ar tnershi •, • behalf of s i' entities., on f Texas , \\‘\./N I ‘ici o f 9 i i i l� . Ras; s; CITY SECRETARY Ft WORTH, TX CSC No. 46781 Consent to Assignment Right of Way Encroachment Agreement Page 5 of 8 Rev 03/2015 APPROVED AS TO FORM AND LEGALITY: g-e• Assistant City Attorney AT ST: ALL Asw City Secretary [No M&C Required] STATE OF TEXAS COUNTY OF TARRANT „ter! in an• e Ha ood', Director Planning and Development Department CITY I FOIT WORTH Date: This instrument was acknowledged before me on Harwood, as the Director of the Planning and Developm Texas munici s al corporation on behalf of the City of Foz 01111111114, Atixii rpi. CASSANDRA F. FOREMAN O • • C 2: se �re. Notary Public, State 121 in :��' • leofT =.9r •• •,.•+��.= My mission Expires S'vet;f April 26, 2017 [NOTARIAL SEAL] CSC No. 46781 Consent to Assignment Right of Way Encroachment Agreement ISIIIIIINnagm 1 I Ari/o ve t Department orth. by Randle of the City of Fort Worth, a f'Lp :t\J otary ' ublic, State of Texas OFFICIAL RECORD CITY SECRETARY VYORTHe TX Page 6 of 8 Rev 03/2015 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Lot 4R, Bock 34, JE NNINGS SOUTH ADDITION, an Addition to the City of Fort Worth, Tarrant County, Texas, according to the Plat thereof recorded in County Clerk's # D212162014, Plat Records, Tarrant County, Texas. CSC No. 46781 Consent to Assignment Right of Way Encroachment Agreement Page 7of8 Rev 03/2015 EXHIBIT B CERTIFICATE OF INSURANCE CSC No. 46781 Consent to Assignment Page 8 of 8 1Aid3192f44Y/P2011g 3RIO}tP greement Rev 03/2015 ACORO`� THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 1-303-481-7821 Edgewood Partners Insurance Center (EPIC) [Greenwood Village - Branch ID 153277 6400 S Fiddlers Green Circle, Suite 1430 CERTIFICATE OF LIABILITY INSURANCE Greenwood Village, CO 80111 INSURED Venterra Realty Management Company, Inc. 711 W. Bay Area Blvd., Suite 602 Webster, TX 77598 CONTACT NAME: PHONE WC. No. ExO: E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE INSURER A: ALLIED WORLD NATL ASSUR CO INSURERB;ALLIED WORLD ASSUR CO US INC INSURER C : INSURER D: INSURER E : INSURER F FAX (A/C. No): DATE (MM/DD/YYYY) 11/06/2015 NAIC # 10690 19489 COVERAGES CERTIFICATE NUMBER: 45413730 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL'SUBR' POLICY EFF POLICY EXP/YLIMITS LTRINSD WVD POLICY NUMBER (MM/DD/YYYY) (MM/DDYYY) A X I COMMERCIAL GENERAL LIABILITY 03080084 12/07/14 12/07/15 X CLAIMS -MADE $10,000 SIR X OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO X LOC JECT OTHER: AUTOMOBILE LIABILITY B X ANY AUTO ALLO(� SCHEDULED AUTOS lull AUTOS NON -OWNED HIRED AUTOS AUTOS UMBRELLA LIAB EXCESS LIAB x OCCUR CLAIMS -MADE DED I X 1 RETENTION$ 10,000 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below Y/N N/A 03087337 12/07/14 12/07/15 EACH OCCURRENCE DAMAGE TO RENTED PREMISES (Ea occurrence) MED EXP (Any one person) PERSONAL & ADV INJURY GENERAL AGGREGATE PRODUCTS - COMP/OP AGG COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE (Per accident) EACH OCCURRENCE AGGREGATE PER STATUTE OTH- ER $ $ $ $ 25,000,000 $ 25,000,000 E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: The Phoenix - 429 College Avenue, Fort Worth, TX 76104. Additional Named Insured: Partnership CERTIFICATE HOLDER The City of Fort Worth Planning & Development Department 1000 Throckmorton Street Fort Worth, TX 76102 USA CANCELLATION 1,000,000 100,000 Excluded 1,000,000 2,000,000 2,000,000 VR Phoenix Holdings Limited SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2014/01) LRudduck 45413730 1988-2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SUPPLEMENT TO CERTIFICATE OF INSURANCE NAM E OFINSU RED: Venterra Realty Management Company, Inc. DATE 11/06/2015 SUPP (10/00)