HomeMy WebLinkAboutContract 35671-CA1 CITY SECRETARY 1
°� CONTRACT N0. 1 1
` � c9Fg9°9Ty ASSIGNMENT AND CONSENT OF ENCROACHMENT AGREEMENT
City Secretary Contract No.35url
THIS ASSIGNMENT AND CONSENT OF ENCROACHMENT AGREEMENT
("Assignment') is made and entered into as of this day of 2018, by and among the
CITY OF FORT WORTH, a Texas home-rule municipal corporation("City"), WTW PROPERTIES,
INC., a Texas corporation ("Assignor'), and SUNDANCE PARLIAMENT OF OWLS LLC, a Texas
limited liability company ("Assignee"). (Sometimes City, Assignor and Assignee are referred to
individually as a"far "and collectively as the"Parties").
WITNESSETH:
WHEREAS, the City entered into an Encroachment Agreement, City Secretary Contract No.
35671, dated August 23, 2007 (the "Encroachment Agreement"), with XTO Energy Inc., relating to
certain real property owned by Assignor more particularly described in the attached Legal Description
(the "Proper ") 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 September 21, 2007 and recorded as
Instrument No. D207338281 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 Property to Assignee on January e, 2018 as evidenced by a
deed recorded as Instrument No. in the Real Property Records of Tarrant County,
Texas;and
WHEREAS, Assignor desires to assign all of Assignor's rights and interest in the Encroachment
Agreement to Assignee, and Assignee desires to assume all obligations of Assignor under the
Encroachment Agreement.
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 of Assignor's rights and interests and
delegates its duties and obligations under the Encroachment Agreement to Assignee. Assignor shall
remain liable for any claims related to Assignor's duties and obligations under the Encroachment
Agreement during Assignor's ownership of the Property arising prior to the date of this Assignment and is
not released from anything that occurred prior to the Effective Date.
2. Assignee hereby accepts the Assignment granted herein, and assumes all of Assignor's
rights, duties and obligations arising under the Encroachment Agreement from and after the Effective
Date.
3. The effective date of this Assignment shall be January_, 2018 (the "Effective Date").
All rights, duties and obligations of the Grantee under the Encroachment Agreement arising, accruing or
relating to the period before the Effective Date are allocated to Assignor, and all rights, duties and
CSC No.
Assignment and Consent to Encroachment Agreement OFFICIAL RECORD
Page 1
CITY SECRETARY
FT.WORTH,TX
obligations of the Grantee arising, accruing or relating to the period thereafter shall be allocated to
Assignee.
4. Except as otherwise expressly set forth in this Assignment, Assignor will be discharged
from any and all obligations under the Encroachment Agreement that arise from and after the Effective
Date.
5. Assignor represents, warrants and covenants with City and Assignee that as of the
Effective Date, Assignor has no actual knowledge of and has not received written notice of Assignor's
default of any of its obligations contained in the Encroachment Agreement.
6. 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.
7. 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.
Com:
Planning and Development Department
1000 Throckmorton Street
Fort Worth TX 76102
Attention: Director
Email:
Assi nor:
WTW Properties, Inc.
810 Houston Street
Fort Worth,Texas 76102
Attn: Taylor Hayes
Email:taylor_hayes@toenergy.com
with a copy to:
WTW Properties, Inc.
810 Houston Street
Fort Worth, Texas 76102
Attn: Julia Anderson
Email:julia_anderson@xtoenergy.com
CSC No.
Assignment and Consent to Encroachment Agreement
Page 2
with a copy to:
Winstead PC
300 Throckmorton Street,Suite 1700
Fort Worth,Texas 76102
Attn:Noelle Garsek
Email:ngarsek@winstead.com
Assianee:
Sundance Parliament of Owls LLC
201 Main Street, Suite 700
Fort Worth,Texas 76102
Attn: Matt Carter,Vice President
Fax No. 817-339-7058
Email: mcarter@finelinemail.com
with a copy to:
Sundance Square Management,L.P.
201 Main Street, Suite 700
Fort Worth,Texas 76102
Attn: Johnny Campbell,President and CEO
Fax No. 817-339-7058
Email: jcampbell@sundancesquare.com
with a copy to:
Kelly Hart&Hallman LLP
201 Main Street, Suite 2500
Fort Worth,Texas 76102
Attn: Patricia F.Meadows
Fax: 817-878-9749
Email: pati.meadows@kellyhart.com
8. 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.
9. Assignee shall cause this Assignment to be filed of record at Assignee's expense in the
Real Property Records of Tarrant County,Texas.
10. The Certificate of Insurance for the Grantee 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!f=b/2018.
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 meanings assigned to them in the Encroachment
Agreement.
CSC No.
Assignment and Consent to Encroachment Agreement
Page 3
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.
Assignment and Consent to Encroachment Agreement
Page 4
ASSIGNOR:
WTW PROPE ES,INC.,
a Texas c 4oration
By:
Name: P le'-ter T u
Title: Vice President
STATE OF TEXAS §
COUNTY OF TARRANT §
The foregoing instrument was acknowledged before me this L day of January, 2018, by Peter
A. Tunnard, the Vice President of WTW PROPERTIES, INC., a Texas corporation, on behalf of such
corporation.
N TA PUBLIC, STATE OFT AS
=—°o, TAYLOR MICHELLE
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CSC No.
Assignment and Consent to Encroachment Agreement
Signature Page I
ASSIGNEE:
SUNDANCE PARLIAMENT OF OWLS LLC,
a Texas limited liability company
By Fine Line Diversifie ealty In .,
a Texas corporatio ,it er
By:
Name:
Title:
STATE OF TEXAS §
COUNTY OF TARRANT §
The foregoing instrument was acknowledged before me this n day of January, 2018, by
�M )�• Nntp.-, Qui 4' of Fine Line Diversified Realty Inc., a Texas corporation, Manager
7UNDANCE PARLI MENT OF OWLS LLC, a Texas limited liability company, on behalf of such
entity.
NOTARY PUB C,STATE OF TEXAS
�9e ec& 1k aLl
Notary's Typed k Printed Name
My Commission Expires:
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No»jy Public
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CSC No.
Assignment and Consent to Encroachment Agreement
Signature Page 2
APPROVED AS TO FORM AND FORT ORTH
LE ALITY:
ssistant City Attorny 'Director
Planning and Development Dep ment
ATT T: - AOR' Date:
City Sec et
[No M& equired]
�XAS
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on 2018, by
f?MLDI E_[:�M6Ae Director of the Planning and Development Departn4 of the City of Fort
Worth,a Texas municipal corporation on behalf of theCitVWort Worth.
Notary ic, tate of Texas
[NOTARIAL SEAL]
00090E1 al Jew N ;, ��u, ,� �o`��wrpVe`i JENNIFER LOUISE EZERNACK
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OZOZ l0-EO say 3 'wwo0 y+1"":N': :a, ._ =Notary Public,State of Texas
sexal;o aie1S 'o! nd�J ON=��,ae �'. c+Pc Comm. Expires 03-01-2020
)13VN83Z3 3SIf10 JI 3r �'�e�d�tid.�� �0' °;�`N�� Notary 10 130561630
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OFFICIAL RECORD
CSC No. CITY SECRETARY
Assignment and Consent to Encroachment Agreement
Signature Page 3 FT.WORTH,TX
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.
Janie S. Morales
Development Manager
Exhibit"A"to Assignment and Consent of Encroachment Agreement
Encroachment Agreement(CSC No.35671)
(see attached)
CSC No.
Assignment and Consent to Encroachment Agreement
Exhibit A—Cover Page
CITY
CON RACT NO Y' I
ENCROACHMENT AGREEMENT
1
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
i
through its duly authorized City Manager or duly designated Assistant City
Manager, hereinafter referred to as the "City", and XTO Energy, Inc. acting
herein by and through its duly authorized Vice President of Facilities
hereinafter referred to as "Grantee", Owner of the property located at 600
Houston St., Fort Worth, Texas 76102 ("Property").
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:
t
*ACS/TRC* TARRANT Doc: 000338281 Date: 09/21/2007 Vol: 0000000 Page: 00000 Page: 1 Of 18
HOUSTON STREET
1. A canopy (12'-0"L x 3'-0"D x 2'-0"H) will be attached T-10" above the
existing sidewalk at the central portion of the building. The canopy
will extend 2'-10" beyond the building property line into the public
right of way. (Refer to Exhibits A-1, A-2, A-3, A-4, and A-5 for canopy
location and details.)
The encroachments listed here serve to improve and protect public access
to the building and enhance the appearance of this downtown Fort Worth ,
building.
i
The location and description of said Improvement and the encroachment is more
particularly described in Exhibit "A-1, A-2, A-3, A-4, and A-5", attached hereto,
incorporated herein and made a part hereof for all purposes.
2.
i
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.
2
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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.
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
3
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i
damage or disruption of improvements installed by Grantee or its successors, but
City will make reasonable efforts to minimize such damage.
6.
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
I
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 no/100 Dollars ($235.00).
7.
The term of this Agreement shall be for thirty years, commencing on the date this
Agreement is executed by the City of Fort Worth.
S.
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
i
Property for the costs expended by the City to remove such Improvement.
I
I
4
I
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9.
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 party may have an interest, and Grantee agrees that it will obtain
all necessary permission before occupying such property.
s
*ACS/TRC* TARRANT Doc: 000338281 Date: 09/21/2007 Vol: 0000000 Page: 00000 Page: 5 Of 18
11.
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.
GRANTEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES
HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS
6
*ACS/TRC* TARRANT Doc: 000338281 Date; 09/21/2007 Vol: 0000000 Page: 00000 Page: 6 Of 18
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
i
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.
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
*ACS/TRC* TARRANT Doc: 000338281 Date: 09/21/2007 Vol: 0000000 Page; 00000 Page: 7 Of 18
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.
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.
8
*ACS/TRC* TARRANT Doc: 000338281 Date: 09/21/2007 Vol: 0000000 Page: 00000 Page: 8 Of 28
After being recorded, the original shall be returned to the City Secretary of the
City of Fort Worth, Texas
17.
I
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
i
CONTAINED IN PARAGRAPH 8 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
20.
i
This Agreement shall be binding upon the parties hereto, their successors
and assigns.
9
*ACS/TRC* TARRANT Doc: 000338281 Date: 09/21/2007 Vol: 0000000 Page: 00000 Page: 9 Of 18
EXECUTED this c�* day of , 20_!2Z
City Grantee
City of-Fort Worth
By: J t _.-- By:
Fernando Costa, Joy Webster
Director Vice President of Facilities
ATTEST: Approved As To Form And Legality
City Secretary Assistant City Attorney
FNO M&C REQUIRED
io
*ACS/TRC* TARRANT Doc: 000338281 Date: 09/21/2007 Vol: 0000000 Page: 00000 Page: 10 Of 18
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 Fernando Costa, 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 day of
200
evy
KAREN Gl�MORENotary Public
STATE OF TEXAS
Comm•Exp.0811112011
*Notrvyic in and for the
State of Texas
tt
•ACS/TRC* TARRANT Doc: 000338281 Date: 09/21/2007 Vol: 0000000 Page: 00000 Page: 11 Of 18
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the
/' WI
State of Texas, on this day personally appeared t/(/ EZ3
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
and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this �"r day of
! / ' 2007.
otary Public in and for the
State of Texas
JACKLEE DS
ffobry Pok,SW of texas
�h Commission Expire$
Noveml$�r
22.2010
12
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*ACS/TRC* TARRANT Doc: 000338281 Date: 09/21/2007 Vol: 0000000 Page: 00000 Page: 17 Of 18
KANDICE MARTIN
CITY OF FTW DEVELOPMENT DPT
1000 THROCKMORTON ST
FTW TX 76102
Submitter: KANDICE MARTIN FTW
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 RECQRD.
Filed For R gistration: 09/2112007 01:66 PM
Ins ment#: D207338281
A 18 PG3 $80.00
By:
1111111 SII 11111 IN IN 1111111111111111111111111111111
D207338281
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.
*ACS/TRC* TARRANT Doc: 000338281 Date: 09/21/2007 Vol: 0000000 Page: 00000 Page: 18 Of 18
Exhibit`B"to Assignment and Consent of Encroachment AEreement
Certificate of Insurance
(see attached)
CSC No.
Assignment and Consent to Encroachment Agreement
Exhibit B—Cover Page