HomeMy WebLinkAboutContract 36589-CA1Date Received: 3/31/2023
Time Received: 8.55 a.m.
Record Number: PN22-00174 A
City Secretary Number: 36589-CA1
ASSIGNMENT AND CONSENT OF ENCROACHMENT AGREEMENT
City Secretary Contract No. 36589
THIS ASSIGNMENT AND CONSENT OF ENCROACHMENT AGREEMENT
("Assignment") is made and entered into as of the 29th day of July, 2022, by and between the
CITY OF FORT WORTH, a Texas home -rule municipal corporation ("City"), MUSEUM
PLACE FLATIRON BUILDING, LTD., a Texas limited partnership ("Assignor"), as successor
in interest to Museum Place Block B 1 Limited, a Texas limited partnership, and VANTAGE
BANK TEXAS, a Texas state bank ("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 Encroachment Agreement, City Secretary Contract
No. 36589 (the "Encroachment Agreement") with Assignor, the owner of a leasehold interest in
certain real property located at 3100 Camp Bowie Boulevard (now known as 3131 West 7th
Street), Fort Worth, Texas 76107, as more particularly described in the Encroachment Agreement
(the "Property");
WHEREAS, the Encroachment Agreement, filed on February 8, 2018, as Instrument No.
D208046264 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, Assignor has sold the leasehold interest in the Property to Assignee on June
29, 2022 as evidenced by an Assignment and Assumption of Ground Lease recorded as Instrument
No. D222190643 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 obligations under the Encroachment Agreement to Assignee.
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. OFFICIAL RECORD
CITY SECRETARY
CSC No. Consent to Assignment FT. WORTH, Tx
Encroachment Agreement
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 Assignor and
all rights, duties and obligations arising, accruing or 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.
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 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
Development Services Department
200 Texas Street
Fort Worth TX 76102
Attention: Director
Assignor
Museum Place Holdings, LLC
2918 Wingate
Fort Worth, TX 76107
Attn: Richard Garvey and Reece Pettigrew
With a copy to:
Brackett & Ellis, PC
100 Main Street
Fort Worth, TX 76109
Attn: Russell Norment
CSC No.
Encroachment Agreement
Consent to Assignment
Assignee
Vantage Bank Texas
45 NE Loop 410, Suite 500
San Antonio, TX 78216
Attn: Patty Terry
With a copy to:
Kelly Hart & Hallman LLP
201 Main Street, Suite 2500
Fort Worth, TX 76102
Attn: Chad Key and Teddy Boschim
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. 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 the meanings assigned to them in the
Encroachment Agreement.
12. 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.
Encroachment Agreement
Consent to Assignment
ASSIGNOR:
MUSEUM PLACE FLATIRON BUILDING, LTD.,
a Texas limited partnership
By: Museum Place Flatiron Building GP, LLC,
a Texas limited liability company,
its general partner
By: d '
Name:1 Richard F. Garvey
Title: President
STATE OF TEXAS
COUNTY OF TARRANT
This instrument was acknowledged before me on this the / day of rjehrfiy, 2023 by
Richard F. Garvey, President of Museum Place Flatiron Building GP, LLC, a Texas limited liability
company, as general partner of Museum Place Flatiron Building, Ltd., a Texas limited partnership, on
behalf of said limited partnership.
Notary Public, State of Texas
[NOTARIAL SEAL]
E"�
W 'E L. LEWISMy Notary ID # 1063048Expires July 24, 2024
CSC No. Consent to Assignment
Encroachment Agreement
ASSIGNEE:
VANTAGE BANK TEXAS,
a Te
By:
Nan
Tith
STATE OF TEXAS
COUNTY OF TARRANT
This A st ient cknowledged beforme o this the Ly day of 2023 by
CL , as �.� of Vantage Bank Texas, a Texas
state bank, on Whalf of said tate bank.
No ary Public, State of Texas
[NOTARIAL SEAL]
emy
DORIS REILLYNotary PublicState of TexasID # 3548799 Comm. Expires 03-07-2026
CSC No. Consent to Assignment
Encroachment Agreement
APPROVED AS TO FORM AND
LEGALITY:
CITY OF FORT WORTH
remy An-Mensah for (Mar 15, 202313:0 T) DJ Harrell (Mar23, 202315:39 CDT)
FWBC Sec. 3210 DJ Harrell, Director
Thomas Royce Hansen, Assistant City Attorney Development Services Department
City Attorney's Office
Date:
Mar 15, 2023
,000aovn��
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o°fie �9.�0
Pvo oSA
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��'Qn�nEXAga4p
Jannette Goodall
City Secretary
(M&C not Required)
Date: Mar 31, 2023
Date: Mar 23, 2023
Contract Compliance Specialist:
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.
kebecca Mane 0imm
Rebecca Diane Owen (Mar 15, 202313:18 CDT)
Date: Mar 15, 2023
Rebecca Owen
Development Manager
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Encroachment Assignment Agreement Page 5 of 8
Rev 04/2020
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on March 23rd , 2023 by DJ
Harrell, Interim Director, as the Director of the Development Services Department of the City of Fort
Worth, a Texas municipal corporation on behalf of the City of Fort Worth.
Wendy L. Digitally signed by Wendy
L. Bea rdslee Date:
2�PRYP(ie`c� WENDY L BEARDSLEE
Notary Public
* * STATE OF TEXAS
all Notary I.D. 13323719-3
9 OFF My Comm. Exp. July 28, 2025
Bea rd s I ee 2023.03.23 13:42:04-05'00'
Notary Public, State of Texas
Encroachment Assignment Agreement
Page 6 of 8
Rev 04/2020
Exhibit "A" to Assignment and Consent of Encroachment Agreement
Copy of Encroachment Agreement
[see following pages]
CSC No.
Encroachment Agreement
Consent to Assignment
CITY SECRETARY
��CONTRACT NO.
ENCROACHMENT AGREEMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
THIS AGREEMENT is made and entered into by and between the City of Fort
Worth, a municipal corporation of Tarrant County, Texas, acting herein by and
through its duly authorized City Manager or duly designated Assistant City
Manager, hereinafter referred to as the "City", Museum Place Block B1
Limited, acting herein by and through its duly authorized Chief Financial
Officer, Reece Pettigrew hereinafter referred to as "Grantee", Owner of the
property located at 3100 Camp Bowie Blvd. ("Properly").
WITNESSETH:
1
For and in consideration of the payment by Grantee of the fee set out
below and the true and faithful performance of the mutual covenants herein
contained, City hereby grants to Grantee permission to construct/ install and/or
allow to remain, Improvement(s) ("Improvement") that encroaches upon, uses
and/or occupies portions of the space under, on and/or above the streets, alleys,
sidewalks and other public rights -of -way, such Improvement(s) are described as
follows:
02-05-08 P03:34 1 N
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1. The upper -most portion of the southern tilted farpade at a height of
71'-6" above grade will encroach approximately 6'-0" into the public
right-of-way from the property line, and V-11" from the edge of curb
at the drive lane. (Refer to Exhibit A for location).
2.
All construction, maintenance and operation in connection with such
Improvement, use and occupancy shall be performed in strict compliance with
this Agreement and the Charter, Ordinances and Codes of the City and in
accordance with the directions of the Director of Transportation and Public Works
of City, or his duly authorized representative. All plans and specifications thereof
shall be subject to the prior written approval of the Director of Transportation and
Public Works, or his duly authorized representative, but such approval shall not
relieve Grantee of responsibility and liability for concept, design and computation
in preparation of such plans and specifications.
3.
Upon completion of construction and installation of said Improvement and
thereafter, there shall be no encroachments in, under, on or above the surface
area of the streets, alleys, sidewalks and other public rights -of -way involved,
except as described herein and shown on the hereinabove referred to Exhibit 'A".
4.
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Grantee, 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 use and occupancy, including the securing of approval and
consent from the utility companies and the appropriate agencies of the State and
its political subdivisions. 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 such
encroachment and use, Grantee shall pay to City an additional amount equal to
such additional cost as determined by the Director of Transportation and Public
Works of the City, or his duly authorized representative.
5.
City may enter and utilize the referenced areas at any time for the purpose
of installing or maintaining improvements necessary for the health, safety and
welfare of the public or for any other public purpose. In this regard, Grantee
understands and agrees that City shall bear no responsibility or liability for
damage or disruption of improvements installed by Grantee or its successors, but
City will make reasonable efforts to minimize such damage.
3
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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,
Grantee agrees to pay to City at the time this Agreement is executed a fee in the
sum of Two Hundred, Thirty-five and no1100 Dollars ($ 235.00).
7. l
The term of this Agreement shall be for'-16v+y (30 ) ye-s commencing on the
date this Agreement is executed by the City of Port Worth.
3
Upon termination of this Agreement, Grantee shall, at the option of City
and at no expense to City, restore the public right-of-way and remove the
Improvement encroaching into the public right-of-way, to a condition acceptable
to the Director of Transportation and Public Works, or his duly authorized
representative, and in accordance with then existing City specifications. It is
understood and agreed to by Grantee that if this Agreement terminates and
Grantee fails to remove the Improvement, Owner hereby gives City permission to
remove the Improvement and any supporting structures and assess a lien on the
Property for the costs expended by the City to remove such Improvement.
a
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It is further understood and agreed upon between the parties hereto that
the public rights -of -way, alleys, sidewalks ("public right-of-way") to be used and
encroached upon as described herein, are held by City as trustee for the public;
that City exercises such powers over the public right -of way as have been
delegated to it by the Constitution of the State of Texas or by the Legislature; and
that City cannot contract away its duty and its legislative power to control the
public right-of-way 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 right of way to be
used for any other public purpose, including but not being limited to underground,
surface of overhead communication, drainage, sanitary sewerage, transmission
of natural or electricity, or any other public purpose, whether presently
contemplated or not, that this Agreement shall automatically terminate.
10.
Grantee understands and agrees that the granting of any encroachment
hereunder is not meant to convey to Grantee any right to use or occupy property
in which a third parry may have an interest, and Grantee agrees that it will obtain
all necessary permission before occupying such property.
11.
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Grantee 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 said Improvement, encroachment
and uses_
12.
Grantee 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.
13.
Grantee 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 Grantee 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 Grantee, its officers, agents, servants, employees,
contractors and subcontractors, and nothing herein shall be construed as
creating a partnership or joint enterprise between City and Grantee.
14.
6
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GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS
OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, 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 SAID IMPROVEMENT AND
ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT
CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, LICENSEES OR INVITEES OF THE CITY; AND
GRANTEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR
SUCH CLAIMS OR SUITS. GRANTEE 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 ANY AND ALL ACTS OR OMISSIONS OF GRANTEE,
ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, LICENSEES, INVITEES, OR TRESPASSERS.
15.
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While this Agreement is in effect, Grantee 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
the following:
Property damage, per occurrence $100,000
Bodily injury, per person
$250,000
Bodily injury or death, per occurrence $500,000
with the understanding of and agreement by Grantee that such insurance
amounts shall be revised upward at City's option and that Grantee shall so revise
such amounts immediately following notice to Grantee of such requirement.
Such insurance policy shall provide that it cannot be canceled or amended
without at least ten (10) days prior written notice to the Building Official of the City
of Fort Worth. A copy of such Certificate of Insurance is attached as attached as
Exhibit °B". Grantee agrees to submit a similar Certificate of Insurance annually
to City on the anniversary date of the execution of this Agreement.
Grantee 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 all encroachments and the
cleaning and restoration of the city streets. All insurance coverage required
herein shall include coverage of all Grantee's contractors.
16.
8
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Grantee 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
Consent Agreement in its entirety in the deed records of Tarrant County, Texas.
After being recorded, the original shall be returned to the City Secretary of the
City of Fort Worth, Texas
17.
In any action brought by the City for the enforcement of the obligations of
Grantee, City shall be entitled to recover interest and reasonable attorney's fees.
18.
Grantee covenants and agrees that it will not assign all or any of its rights,
privileges or duties under this contract without the prior written approval of the
City Manager or designee. Any attempted assignment without prior written
approval will be void.
19.
THE PARTIES AGREE THAT THE DUTIES AND OBLIGATION
CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
20.
9
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This Agreement shall be binding upon the parties hereto, their successors
and assigns.
EXECUTED this U t day of 20
City
City of Fort Worth
Bey:
7Use"i A GN1S
N41.:5) Director of Planning and Development
Grantee
/r a SCZ-11a PCACe �Coc� B/, I-7Z ,
By. �'asc2/M P[QACE �9Gac� B GLC
By:
Reece Pettigrew,
CFO, Museum Place Block B1 Limited
10
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APPROVED AS TO
F RIVI' peIV1,Z,LEGALITY:
ASSISTANT bItY ATTORNEY
11
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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 Susan Alanis, 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 the City of Fort Worth,
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this , S day of
20 2�.
�r
Notary Public in and for tW
State of Texas
R. cNA
REZ
�'.I, .ro" • °_.,;� Notary Public, State of T6X2S
�I NiyC:ornmiesian 2044S
;.ptsm per 10,
oO
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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 -. 'Re-e-ce- Pe4, �n rea)
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
N—W&e►.cm V �� pLj< 1�> i , )-.'TQ and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this I } day of
Q+ Zc.c[kr, 20
DEBBIE A. MARTIN
=aa' Notary Public. State of Tees
?b My Commission Expires
Fet 4;: Sepfember l5, 2010
13
L�A1 a - ma-a-z::n
Notary Public in and for the
State of Texas
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CITY OF FORT WORTH
1000 THROCKMORTON
FT WORTH TX 76102
Submitter: CITY OF FORT WORTH
SUZANNE HENDERSON
TARRANT COUNTY CLERK
TARRANT COUNTY COURTHOUSE
100 WEST WEATHERFORD
FORT WORTH, TX 76196-0401
DO NOT DESTROY
WARNING - THIS IS PART OF THE OFFICIAL RECORD.
Filed For Regis tion: 02/08/2008 03:21 PM
Inst,_ t#: D208046264
A 17 PGS $76.00
D208046264
ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE
OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR
RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.
Printed by: PT
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