Loading...
HomeMy WebLinkAboutContract 50157-CA1 Date Re cc ive d:02/17/2021 City Se cre tart' Time Received: 10:26 AM Number: 50157-CAI ASSIGNMENT AND CONSENT OF ENCROACHMENT LICENSE AGREEMENT City Secretary Contract Nos. 50157 THIS ASSIGNMENT OF ENCROACHMENT AGREEMENT ("Assignment") is made and entered into by and between (1) the CITY OF FORT WORTH, a Texas home rule municipal corporation ("C "), acting by and through its duly authorized City Manager, Assistant City Manager, or Development Services Director; (2) FW Trinity LB, LTD., a Texas Limited Partnership ("Assignor'), and (3) WMCi Dallas XI, LLC., a Virginia Limited Liability Company ("Assignee"), acting by and through its duly authorized member. Hereinafter, City, Assignor, and Assignee may be referred to individually as a "Party" or collectively as the "Parties." WITNESSETH: WHEREAS, Assignor is the fee owner of certain land improvements located at 411 Harrold Street, Fort Worth, Texas 76102 (the "Pro e "). WHEREAS, the City previously entered into an Easement Encroachment License Agreement, City Secretary Contract No. 50157 (the "Original Agreement"), with Assignor, the then-owner of certain real property more particularly described in the Original Agreement and the exhibits attached thereto; and WHEREAS, that Original Agreement, filed on January 24, 2018 and recorded as Instrument No. D218015933 in the Real Property Records of Tarrant County, Texas, is attached hereto with exhibits and collectively labeled as "Exhibit A" to this Assignment and incorporated herein by reference as if set forth in full; and WHEREAS, the descriptions of the affected Easement(s) and the encroachments are set forth in the Original Agreement and exhibits attached thereto, which are incorporated herein by reference for all purposes; and WHEREAS, Assignor desires to assign the Original 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 all duties and obligations under the Original Agreement to Assignee. OFFICIAL RECORD Encroachment License Assignment Agreement CITY SECRETARY FT.WORTH, TX 2. Assignee hereby accepts the Assignment granted herein and assumes all of Assignor's rights, duties, and obligations under the Original Agreement first accruing from and after the Effective Date of this Assignment. 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 Original Agreement accruing before the Effective Date are allocated to Assignor, and all rights, duties, and obligations first accruing from and after the Effective Date 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 Original Agreement first accruing from and after the Effective Date of this Assignment. 6. Assignor represents, warrants, and covenants with City and Assignee that, as of the Effective Date, Assignor, to its knowledge, is not in default of any of its obligations contained in the Original 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 assignments. The failure or delay of City in seeking to enforce any provision of the Original 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. 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 proper postage, certified nail 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. C Attention: Director Development Services Department 200 Texas Street Fort Worth, Texas 76102 Assignor FW Trinity LB, LTD. c/o Endeavor Real Estate Group 500 West 5t" Street, Suite 700 Encroachment License Assignment Agreement Revised 4/2020 Austin, Texas 78701 Assignee WMCi Dallas XI, LLC c/o Weinstein Management Co.,Inc. 3951 Stillman Parkway Glen Allen, VA 23060 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. City shall cause this Assignment to be filed of record in the Real Property Records for Tarrant County, Texas. 11. The Certificate of Insurance for the Assignor attached as "Exhibit B" to the Original Agreement is hereby deleted and replaced with the attached Certificate of Insurance for the Assignee, labeled as "Exhibit B, Revised." 12. All terms and conditions of the Original Agreement not amended herein remain unaffected and in full force and effect, are binding on the Parties, and are hereby ratified by the Parties. Any capitalized terms not defined herein shall have the meaning assigned to them in the Original 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. [SIGNATURES APPEAR ON FOLLOWING PAGES] Encroachment License Assignment Agreement Revised 4/2020 • e : FW TRINITY LB,LTD., a Texas limited partnership By: EGP 2015 Management, LLC, a Texas limited liability company, its general pz • 1 r B Name: _ Title: THE STATE OF TEXAS § COUNTY OF`hRAVIS § This instrument was acknowledged before me on December 14 2020, by �. 44U,t,�( as 6-0 of EGP 2015 Management, LLC, a Texas limited liability company, general partner of FW Trinity LB, Ltd., a Texas limited partnership, on behalf of such limited liability company and such limited partnership. 7. Zo2t My Commission Expires: 4'-e, C Q� Notary Pubblllii,� State of Texas �"`�••P„�:.. CirdIJY LAPIFR N Notary IC N129451083 Notary's name printed: .t My Commission Expires tune 7,2021 OFFICIAL RECORD CITY SECRETARY FT.WORTH, TX Encroachment I.icense Assignment Agreement • 1 � 1 l i 1 WMCi DALLAS XI, LLC, a Virginia limited liability company By: r `° Name: John T. Lancaster Title: Co-President and Chief Financial Officer COMMONWEALTH O\F/VIIRGINIA COUNTY OF This instrument was acknowledged before me on /O��I y VV , 2020 by John T. Lancaster, Co-President and Chief Financial Officer of WMCI DALLAS XI, LLC, a Virginia limed liability company, on behalf of said limited liability company. Notary Public Printed Name: L• My Commission Expires: it/ � L r o = COMAA 8 SION0 EXPIRES 413012024 VV ♦ %kFAI TH�O� ;.��a♦ OFFICIAL RECORD CITY SECRETARY FT.WORTH, TX Encroachment License Assignment Agreement Revised 4/2020 I I I I I I I APPROVED AS TO FORM AND CITY OF FORT WORTH LEGALITY: DJ Harrell(Feb11,202112:35 CST) FWBC Sec. 3210 DJ Harrell, Director Matthew A. Murray Development Services Department Assistant City Attorney Date: 2-11-2021 Date: 2-11-2021 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 report requirements. �,od D:9:4 Janie S. Morales pF......�a Development Manager ATTEST: 9A, �o 01 o g =d Ci � o City Secretary as troo ppO°° q [No M&C Required] ��nEXn►5�� OFFICIAL RECORD CITY SECRETARY FT.WORTH, TX EncroachmentLicenseAssignmentAgreement Revised 4/2020 STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on February 16, 20 21 by DJ Harrell, as the Director of the Development Services Department of the City of Fort Worth, a Texas home rule Municipal Corporation, on behalf of the City of Fort Worth. Digitally signed by LAURIE LAURIE PEQUENO LEWIS PEQUENO LEWIS Date:2021.02.1615:50:42 o,�pRYPGe/ LAURIE PEQUENO LEWIS -06'00' 2 A Notary Public + + STATE OF TEXAS GGVVV P Notary I.D. 132278952 Notary Public, State of Texas 9jFoF� My Comm.Exp.Dec.10,2023 Encroachment Licen s e Assignment A greement Revised 4/2020 EXHIBIT A ORIGINAL AGREEMENT WITH ATTACHED EXHIBITS EncroachmentLicense Assignment A greement Revised 4/2020 MY SEGRETARY�b 1 S 1 N . ��I 2�18 a�+ EASEMENT ENCROACHMENT LICENSE AGREEMENT }�, jrj?�H Commercial 'A� C,G1oCy SECRE�FP 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, its duly designated Assistant City Manager or Planning and Development Director, and FW Trinity LB,LTD. [full legal name], a limited company [type of entity] ("Licensee"), acting by and through its duly authorized /V1,K"N. [title], owner of the real property located at 411 Harrold , Fort Worth,TX 76 107 ("Property"). RECITALS WHEREAS, Licensee is the owner of certain real property situated in the City of Fort Worth, Tarrant County, Texas, more particularly described in the attached Legal Description of the Property; and WHEREAS, the City has a Sidewalk&Landscape and Drainage easement (the "Easement") in the Property as shown on the map attached to this Agreement as Exhibit "A" and incorporated herein for all purposes; and WHEREAS, Licensee desires to construct/place and maintain certain improvements which will encroach onto the Easement; and WHEREAS, City will allow the encroachment under the terms and conditions as set forth in this Agreement to accommodate the needs of the Licensee. NOW, THEREFORE, the City and Licensee agree as follows: AGREEMENT 1. City, in consideration of the payment by the 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 upon and occupy a portion of the City's Easement for the purpose of Dncor electric switchgear and underground service (the "Encroachment") as described in and at the location shown on Exhibit "A" but only to the extent shown thereon. Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining the Encroachment within and above the Easement. Licensee shall not expand or otherwise cause the Encroachment to further infringe in or on City's Easement beyond what is specifically described in the Exhibit(s)attached hereto. 2. OFFICIAL RECORD 2015 Easement Encroachment Agreement-Commercial CITY g �� 'A Page l of 11 FW Trinity LB,LTD. Rev. 10/2017 FT.WORTH,TX All construction, maintenance and operation in connection with such Encroachment, use and occupancy shall be performed in strict compliance with this Agreement and the City's Charter, Ordinances and Codes and in accordance with the directions of the Director of the Transportation and Public Works or the Director of the City's Water Department, or his or her duly authorized representative. Licensee shall submit all plans and specifications to the applicable Director or his or her duly authorized representative prior to the construction of the Encroachment. Licensee shall not commence construction of the Encroachment until receiving written approval by the Director, but such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon prior written notice to Licensee, except in the case of an emergency, Licensee agrees that City may enter and utilize the referenced areas at any time for the purpose of installing, repairing, replacing, or maintaining improvements to its public facilities or utilities necessary for the health, safety and welfare of the public or for any other public purpose. City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Encroachment installed by Licensee, but City will make reasonable efforts to minimize such damage. In the event that any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned by, 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, Licensee shall pay to City an additional amount equal to such additional cost as reasonably determined by the Director of Transportation and Public Works or the Director of the Water Department, or said Director's duly authorized representative. 4. Licensee agrees to pay to City at the time this Agreement is requested an application fee of$325.00 in order to defray all costs of inspection and supervision which City has incurred or will incur as a result of the construction, maintenance, inspection or management of the encroachments and uses provided for by this Agreement. 2015 Easement Encroachment Agreement-Commercial Page 2 of 11 Fw Trinity LB,LTD. Rev. 10/2017 5. The term of this Agreement shall be for 30 years, commencing on the date this Agreement is executed by City. However, this Agreement shall terminate upon Licensee's non-compliance with any of the terms of this Agreement. City shall notify Licensee in writing of the non-compliance, and if not cured within 30 days, this Agreement shall be deemed terminated, unless such non-compliance is not susceptible to cure within 30 days, in which case this Agreement shall be deemed terminated in the event that Licensee fails to commence and take such steps as are necessary to remedy the non-compliance with 30 days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with continuity to remedy same. 6. It is further understood and agreed between the parties hereto that the Easement to be used and encroached upon as described herein, is held by City as trustee for the public; that City exercises such powers over the Easement 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 Easement 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 Easement to be used for any other public purpose, that does not preclude the use of the Encroachment on the Property, 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 the Encroachment and the public purpose. 7. 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, ARISING OUT OF OR IN CONNECTION WITH, 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 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 2015 Easement Encroachment Agreement-Commercial Page 3 of 1 l Fw Trinity Le,LTD. Rev. 10/2017 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. 8. 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 Commercial General Liability 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 30 days prior written notice to the Building Official of the City of Fort Worth. A copy of such Certificate of Insurance is attached as Exhibit "B" and incorporated herein for all purposes. Licensee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement Licensee agrees, binds and obligates itself, 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 the cleaning and restoration of the Easement. All insurance coverage required herein shall include coverage of all Licensees' contractors and subcontractors. 9. Licensee agrees to deposit with 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 Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth. 10. Licensee agrees to comply fully with all applicable federal, state and local laws, statutes, ordinances, codes or regulations in connection with the construction, operation and maintenance of the Encroachment and uses. 2015 Easement Encroachment Agreement-Commercial Page 4 of I 1 FW Trinity LB,LTD. Rev. 10/2017 11. 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. 12. 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. 13. 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 Easement and is not a conveyance of any right, title or interest in or to the Easement 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. 14. 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 attorney's fees. 15. The parties agree that the duties and obligation contained Sections 3 and 4 shall survive the termination of this Agreement. 16. 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 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 2015 Easement Encroachment Agreement-Commercial Page 5 of 11 FW Trinity LB,LTD. Rev. 10/2017 said lender notifies City in writing within 60 days of such foreclosure or assignment and assumes all of Licensees' 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. 17. 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. 18. This Agreement shall be binding upon the parties hereto,their successors and assigns. SIGNATURES APPEAR ON FOLLOWING PAGE] 2015 Easement Encroachment Agreement-Commercial Page 6 of 11 Fw Trinity LB,LTD. Rev. 10/2017 THIS AGREEMENT may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. City Licensee: FW Trinity LB, LTD. CITY O F T W TH By: By: Randle Narwo Name: .9111,IJAar Director Title: n/l.„,,�r Planning and De loprnent Date: . 20_�_ ATTEST: Approved As To Form and Legality -� RT �® City Secr t A;�, Assistant Ci Y Attorney MotV.,a Compliance Manager .. 1295:_ 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. Janie S. Morales Development Manager OFFICIAL.RECORD CITY SECRETARY FT..WORfiM, TX 2015 Easement Encroachment Agreement-Commercial Page 7 of 11 Rev. 10/2017 STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on , 201 by Randle Harwood, Director of the Planning and Development Department of the City of Fort Worth, on behalf the City of Fort Wort . Notary Public, State of Texas JENNIFER LOUISE EZERNACK Notary Public, State of Texas Comm. Expires 03-01-2020 Notary ID 130561630 After Recording Return to: City of Fort Worth Planning& Development CFA Office 200 Texas Street Fort Worth TX, 76102 2015 Easement Encroachment Agreement-Commercial Page 8 of 11 Rev. 10/2017 STATE OF § COUNTY OF-11 yt,5 § BEFORE ME, the undersigned authority, a Notary Public in an, for the State of Texas on this daypersonally appeared � Nd�f7�?i✓1 r Y rr � sQ (title), 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 for the purposes and consideration therein expressed, as the act and deed of FW Trinity LB, LTD. y a limited company and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of c� r , 201 ?. Uj,: SUSAN FROST NOTARY PUBLI ' +t" state t31 teofTexxaas otar� Public in and for the Comm1E,.' rv�rvy ryy rirP 2277 2021 State of 2015 Easement Encroachment Agreement-Commercial Page 9 of 11 Rev. 10/2017 LEGAL DESCRIPTION OF THE PROPERTY Lot 1R, Block 11 OF EVANS-PEARSON WESTWOOD ADDITION, an addition to the City of Fort Worth Tarrant County, Texas, according to the plat thereof recorded in Instrument No. D215272429 of the Official Public Records of Tarrant County, Texas . 2015 Easement Encroachment Agreement-Commercial Page 10 of l 1 Rev. 10/2017 EXHIBIT `bA" Map of Encroachment and Easement 2015 Easement Encroachment Agreement-Commercial Page 11 of 11 Rev. 10/2017 q LL I, �zrtnn��wzn rn,�. �r�.. �, W ww w F --- q, ,r * } pewaocuE � � _ t fl3,h$,TR &. y.OL e �� q _ r_--- i1q# ���,,• I m_ ngqi a .. ... ..a- x�. PRDP W -k -�'"1.✓ d y u.+raa w cwxvac. �' f ,�-. i... k ,� E&R. +s-uwrcd•wn�anazre.w avwie LO71R-1,BLOCK 11 4 lf. - ooc.No.azgmeazga rsuP�o .+c.� �+I DRRrcr +u,ram ! f �+� �.ra,�REs xarxemovw " y 18d,O5B8WMEFEET i ,,' * q PROPOSED —PARK x Le f f ! iil 1.IT IR1,BLOCN PEPRSON WE6NtOOD * \.� - CWRttMD Y ROOD ON -NO.DM9in%2 � .� �' Z w� rryw t �mF �y io ¢ w cl lF, S: �6 P<+aPoseo w�ns,venr eunmNG W Z 22 F- o � d LLIZ:°° �} [� a°w g / w EX EXHIBIT B, REVISED CERTIFICATE OF INSURANCE EncroachmentLicense A ssignment A greement Revised 4/2020