HomeMy WebLinkAboutContract 46839 1 ,O�
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CITY SECRETAW
opo COWRACT NO. 39
MEMORANDUM OF UNDERSTANDING
This MEMORANDUM OF UNDERSTANDING (this "Memorandum") is entered into on
-ALme. 11 2015, by and between the City of Fort Worth, Texas, a home-rule
municipal corporation in Tarrant, Denton, Johnson, Parker and Wise Counties, Texas ("Fort
Worth") by and through its duly authorized City Manager, David Cook, and Winner LLC
(together with its affiliates and related entities, successors or assigns, "Company"). Fort Worth
and Company may be individually referred to as a "party" or collectively as "parties" herein.
WITNESSETH:
WHEREAS, Company seeks to acquire certain property in the City of Fort Worth to
establish a multi-year large-scale project which may include multiple phases for one or more data
centers, and/or other facilities used to house, and in which are operated, maintained and replaced
from time to time, computer systems and associated components, such as telecommunications
and storage systems, cooling systems, power supplies and systems for managing property
performance (including generators), and equipment used for the transformation, transmission,
distribution or management of electricity (including substations), Internet-related equipment,
data communications connections, environmental controls and security devices, structures and
site features, as well as certain accessory uses or buildings located on that certain property
described in Exhibit "A" hereto and incorporated herein by this reference (the "Property") and
other related or associated uses, buildings or structures such as (but not limited to) utility
buildings, structures and appurtenances located on, adjacent or near the Property that are
reasonably related to the data center(collectively, the "Project"); and
WHEREAS, the City finds developments such as the Project to be in the public interest
of its citizens and thus desires to further encourage and aid the Project; and
M WHEREAS, due to the nature of the Project in relation to Company's core business and
M the substantial anticipated commitment of private capital by Company in order to develop the
M Project, it is imperative that Company gain as much assurance as is reasonably practicable that
CD Company will be able to achieve uninterrupted operation of the Project; and
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,..► WHEREAS, development of the Project on the property will involve a substantial
commitment of private capital by Company, which require Company to gain comfort with the
Cr City's regulations and ordinances; and
WHEREAS, the City acknowledges that the current zoning of the property and proposed
operations by Company do not violate any ordinance provisions including the Noise Ordinance;
and
WHEREAS, the parties wish to memorialize their understanding into this Memorandum
to provide confidence to Company to develop its Project as to the City's current understandings
as it relates to allowable uses of the property and the City's Noise Ordinance.
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
NOW THEREFORE, for and in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
1. Purpose
The purpose of the Memorandum is to memorialize certain understandings between Fort
Worth and Company to provide assurances that Fort Worth agrees at this time that the proposed
uses and operations as described by Company,that could include operating systems that may
produce sound at 73 dBa measured at the boundary of the Property, does not create a violation of
the City's Noise Ordinance (Ordinance#20191-05-2012) or in any way violate the allowed uses
for"K"Heavy Industrial zoning.
2. Zoning
The Property is currently shown on the City of Fort Worth zoning map and is zoned "K"
Heavy Industrial District. This zoning district allows heavy industrial uses including the
proposed uses described by Company. The regulations for the "K"Heavy Industrial District are
described in Ordinance No. 13896, Chapter 4, Section 4.1004. A copy of Chapter 4, Section
4.1004 is attached hereto as Exhibit"B" and made part of this Memorandum. A duplicated
portion of the City of Fort Worth Zoning Map, which encompasses the location of the above-
referenced property, is attached hereto as Exhibit"C" and made a part of this Memorandum.
3. Noise Ordinance
A. The City of Fort Worth adopted Ordinance#20191-05-2012 on May 1, 2012. The
ordinance provides for a violation to occur because a noise is disturbing to a reasonable person
of ordinary sensibilities or because it exceeds the decibel level restrictions as outlined in the
ordinance. The decibel level restrictions in the ordinance do not apply to the Company's Project
since the zoning for the property is exempt from this provision.
B. As it relates to the potential violation of the reasonable person standard outlined in the
ordinance, the City understands that Company is concerned about potentially running afoul of
the ordinance due to potential future complaints associated with the need to test and operate
back-up generators to power the facilities and systems associated with the development. Based
on the zoning and proposed operations as well as the expected maximum noise levels of
approximately 73 dBa, the City does not expect or contemplate a decibel level complaint to be
substantiated at such levels. Additionally, although a noise complaint may be based on a
reasonable person standard it will need to be proven beyond a reasonable doubt before a
municipal court that a person of reasonable sensibility would have been disturbed in such a way
that causes material distress, discomfort or injury to persons of ordinary sensibilities in the
immediate vicinity thereof, or any noise was of such character, intensity and continued duration,
which substantially interfered with the comfortable enjoyment of private homes by a person of
ordinary sensibilities.
Memorandum of Understanding
Winner LLC
C. It is expected that the operation of the systems that could potentially emit sound at the
maximum expected decibels would be only operated for short periods of time for testing or
maintenance or would be in operation during a power outage or similar emergency, which under
those conditions would be considered reasonable. Additionally, since the adoption of the current
ordinance, a citation related to the noise ordinance has never been issued at a location that has
industrial zoning.
4. Immunity
It is expressly understood and agreed that, in the execution of this Memorandum, Fort
Worth does not waive, nor shall be deemed hereby to waive, any immunity or defense that would
otherwise'be available to it against claims arising in the exercise of governmental powers and
functions. By entering into this Memorandum, the parties do not intend to create any obligations,
expressed or implied, other than 1) to serve Company's Project in accordance with Fort Worth's
policies and regulations; and 2) to treat Company fairly and consistently as a corporate citizen.
5. No Third-Party Beneficiaries
This Memorandum shall inure only to the benefit of the parties hereto and third persons
not privy hereto shall not, in any form or manner, be considered a third party beneficiary of this
Memorandum. Each Party hereto shall be solely responsible for the fulfillment of its own
contracts or commitments.
6. Severability
In case any one or more of the provisions contained in the Memorandum shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Memorandum, and this
Memorandum shall be construed as if such invalid, illegal, or unenforceable provisions had
never been contained herein.
7. Venue
This Memorandum shall be construed under and in accordance with the laws of the State
of Texas, and the venue for any litigation arising from this Memorandum shall be in Tarrant
County, Texas.
8. Authorization
The undersigned officers and/or agents of the parties hereto are properly authorized
officials and have the necessary authority to execute this Memorandum on behalf of the Parties
hereto, and each party hereby certifies to the other that any necessary actions extending such
authority have been duly passed and are now in full force and effect.
Memorandum of Understanding
Winner LLC
9. Notices
Any notices (unless otherwise specified herein), bills, invoices or reports required by this
Memorandum shall be sufficient if sent by the Parties in the United States mail, postage paid, to
the address noted below:
If to Fort Worth: City Manager's Office
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
Copy to: City Attorney's Office
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
If to Customer: Winner LLC
Attn: Legal Department
I Hacker Way
Menlo Park, CA 94025
10. Confidential Information
The City acknowledges that some information it receives from Company under this
Memorandum may be considered confidential. Company understands and agrees that the City is
subject to the Texas Public Information Act, Texas Government Code Chapter 552. The Parties
agree to comply with the terms and conditions of that certain Single Party Non-Disclosure
Agreement between the City and Company that is on file in the City Secretary's Office as City
Secretary Contract No. 46664 to the extent that it relates to the rights, obligations, documents
and/or information related to this Memorandum.
11. Mutual Assistance
The City and Company will do all things reasonably necessary or appropriate to carry out
the objectives, terms and provisions of this Memorandum and to aid and assist each other in
carrying out such objectives, terms and provisions.
12. Counterparts
This Memorandum may be executed in multiple counterparts, each of which shall be
considered an original, but all of which shall constitute one instrument.
Memorandum of Understanding
Winner LLC
13. Assignment
Company may assign any portion of its interest in this Memorandum to an affiliate or
other third party upon written notice to City.
Memorandum of Understanding
Winner LLC
CITY OF FORT WORTH, TEXAS WINNER. LLC
By:
David Coo&/ Its:
City Manager
RECOMMENDED BY:
Jesus Chapa '
Economic Development Director Q� �0
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APPROVED ffASO FORM AND LEGALITY:
4 t il-o-Dec._ Yilr1}�
elinda Ramos
Senior Assistant City Attorney
E
M&C 11EQUIRED
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
Memorandum of Understanding
Winner LLC
IN WITNESS WHEREOF, this Memorandum has been executed as of the date set forth
above.
CITY OF FORT WORTH,TEXAS WINNER. LLC
By: ,c
David Cook Its: \I�Lo- &II&AA-Ir
City Manager ,.Jam'• c\�.� E�� d
RECOMMENDED BY:
Jesus Chapa
Economic Development Director
ATTEST: WITNESS:
Mary Kayser By:
City Secretary
APPROVED AS TO FORM AND LEGALITY:
Peter Vaky
Deputy City Attorney
Memorandum of Understanding
Winner LLC
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
Exhibit A
Property Description
DESCRIPTION OF
110.71 ACRES
BEING a tract of land situated in the F. Cuella Survey, Abstract Number 267, 'Tarrant County,
Texas and being a portion of two tracts of land describe by deed to AIL Investment,L.P.,
recorded in Volume 13588, Page 195 (Tracts 12 and 13), County Records, Tarrant County,
Texas, being more particularly described by metes and bounds as follows:
BEGINNING at the northeast corner of Lot 10, Block 3, Alliance Gateway North, an addition to
the City of Fort Worth recorded in Instrument Number D208290670, in the south line of Lot 4R,
Block 3 Alliance Gateway North, and addition to the City of Fort Worth recorded in Instrument
Number D209069793, both of said County Records;
THENCE S 89°56'01"E,368.25 feet;
THE,NCE S 00004'42"W, 540.00 feet;
THENCE S 89055'36"E, 602.74 feet;
ME NCE N 71°5l'00"E, 445.20 feet;
THENCE N 62028'25"E, 296.66 feet;
THENCE N 90000'00"E, 1055.55 feet to the beginning of a curve to the right;
THE NICE with said curve to the right, an are distance of 68.39 feet,through a central angle of
41'14'47", having a radius of 95.00 feet,the long chord which bears S 69°22'37"F.., 66.92 feet to
the beginning of a curve to the left;
THE, with said curve to the left, an arc distance of 94.33 feet, through a central angle of
38°19'47", having a radius of 141.00 feet, the long chord which bears S 67°55'07"E, 92.58 feet;
THENCE S 87005'00"E, 103.97 feet to the beginning of a curve to the right;
THENCE with said curve to the right, an arc distance of 200.88 feet, through a central angle of
05°55'58", having a radius of 1940.00 feet, the long chord which bears S 08°09'47"E,200.79
feet;
THENCE S 05015'42"E,237.77 feet;
THENCE S 33052'08"W, 95.68 feet to the beginning of a curve to the left;
THE, with said curve to the left, an are distance of 143.68 feet, through a central angle of
02°29'57", having a radius of 3294.04 feet, the long chord which bears S 61°40'59"W, 143.67
feet to the beginning of a curve to the left;
Peloton.lob No.WIN 15001 Tracking No. Ernst
FTW April 21.2015
G:IIOBIWCN15001_ERNS'IISURII.,t'GAL\Vk1iNI50(il_GX4i,DOC'X Page I o1_4
THENCE with said curve to the left, an are distance of 955.90 feet, through a central angle of
04'46'16", having a radius of 11479.16 feet,the long chord which bears S 58°08'59"W, 955.62
feet;
THENCE S 55045'15"W, 459.78 feet to the beginning of a curve to the right;
THENCE with said curve to the right, an are distance of 1237.97 feet,through a central angle of
09'l 8'33", having a radius of 7619.44 feet, the long chord which bears S 60°24'08"W, 1236.61
feet;
THENCE S 65004'38"W, 195.64 feet to the beginning of a curve to the left;
THENCE with said curve to the lett, an arc distance of 392.71 feet, through a central angle of
05°51'36", having a radius of 3839.72 feet, the long chord which bears S 62°07'36"W, 392.54
feet;
THE, S 5901 1'47"W, 152.11 feet;
THE, S 8901 1'47"W, 80.00 feet;
TIEIENCE N 3601 0'14"W, 86.37 feet;
THENCE N 00004'1 TV,20.00 feet to the beginning of a curve to the left;
THE, with said curve to the left, an arc distance of 167.72 feet, through a central angle of
12038'40", having a radius of 760.00 feet, the long chord which bears N 06°10'12"W, 167.38
feet to the beginning of a curve to dle right;
THE NCE with said curve to the right, an arc distance of 162.11 feet, through a central angle of
12°33'05", having a radius of 740.00 feet, the long chord which bears N 06°12'59"W, 161.78
feet;
THENCE N 00°03'31"E, 1482.86 feet to the beginning of a curve to the right;
THENCE with said curve to the right, an arc distance of 89.82 feet, through a central angle of
11'58'07", having a radius of 430.00 feet, the long chord which bears N 06°02'35"E, 89.66 feet
to the beginning of a curve to the left;
THENCE with said curve to the left, an arc distance of 102.36 feet, through a central angle of
11°58'07", having a radius of 490.00 feet, the long chord which bears N 06°02'35"E, 102.17
feet;
THE, N 00°01'34"E,425.60 feet;
THENCE S 89°56'45"E, 232.00 feet;
Pei oton Job No.WIN 15001 Tracking No. Ernst
FTU' April 21,2015
C:1J0B\WIN]5001 LRNSI1 SUR\1,110A LAW IN 15001_EX4.DOCX Page 20l' 1
THENCE N 00001 `18"E, 115.00 feet to the Point of Beginning and conlaining 4,822.523
square feet or l 10.71 acres of land more or less.
"Integral parts of this document"
1. Description—3 Pages
2. Exhibit
"Preliminary, this document shall not be recorded for any purpose and shall not be uscd or
viewed or relied upon as a final survey document"22 TAC 663.18C
Todd A. Bridges, RPLS 4440
Date: 04.21.2015
Peloton.lob No. W TN 15001 Tracking No. Ernst
FTW April 21.2015
GAtJOMWIN 15001 ERNSTISMLEGALMN 15001 EX4.DOCX Page 3 ol'4
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Exhibit B
Chapter 4, Article 4.1004
CHAPTER 4: DISTRICT REGULATIONS Page 1 of 2
Print
Fort Worth, TX Code of Ordinances
§ 4.1004 HEAVY INDUSTRIAL ("K") DISTRICT.
(a) Purpose and intent. The purpose of the heavy industrial ("K") district is to provide for
heavy industrial uses that may be noxious or offensive due to odors, smoke, dust, noise, fumes or
vibrations. This district is intended to serve the entire community.
(b) Uses. In the heavy industrial ("K") district, no building or land shall be used and.no
building shall be hereafter erected, reconstructed, altered or enlarged, nor shall a certificate of
occupancy be issued, except in accordance with the use tables in Chapter 4, Articles 6 and 8 and
the supplemental use standards of Chapter 5.
(c) Property development standards, The minimum dimension of lots and yards and the
height of buildings in the heavy industrial ("K")district, shall be as shown in the accompanying
table.
Heavy Industrial ("K") District
None required if entire block frontage is zoned
Front yard* through "K;" if the block frontage contains a residential
district or the"ER" or "E"district, the most restrictive
district standards apply
Rear yard'` 10 feet minimum adjacent to residentially zoned lot,
none otherwise
Side yard*
Interior lot 5 feet minimum adjacent to residentially zoned lot,none
otherwise; if provided, side yard must be 3 feet minimum
Coiner lot*" None required unless through lot,then 10 feet mmi num
required
Height 12 stories or 120 feet maximum
Notes:
* Additional setback may be required by §§ 6.101(c) or 6.300.
**May be subject to projected front yard(§ 6.101(f))
(d) Other development standards. Development in the heavy industrial ("K")district may be
subject to a variety of general development standards, including, but not limited to the following.
(1) Off-'street parking and loading. Industrial buildings require one space per 500 square
feet os gross floor area or one space per three employees, whichever is greater. Warehouse
buildings require one space per four employees, with a four-space minimum. For further details;
http://wN"v.amlegal.com/alpscripts/get-content.aspx 6/1/2015
Exhibit C
City of Fort Worth Zoning Map
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