HomeMy WebLinkAboutContract 54743 DocuSign Envelope ID:A9CE9893-1395-4FFF-890D-4742B180DE26
Date Received;10/28/2020 City Secretary
Time Received:2:28 PM Number: 54743
EASEMENT ENCROACHMENT LICENSE AGREEMENT
Commercial
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, Assistant City Manager, or
Development Services Director, and Bottling Group, LLC, a limited liability company
("Licensee"), owner of the real property located at 5201 Blue Mound Road, Fort Worth,
Texas 76106 ("Property"), acting by and through its duly authorized Director of Real
Estate.
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, attached as "Exhibit C" and incorporated herein for all
purposes; and
WHEREAS, the City has a utility and drainage easement (the "Easement") in
the Property as shown on the map attached to this Agreement as "Exhibit A," which is
incorporated herein for all purposes; and
WHEREAS, Licensee desires to construct, place, and/or maintain certain
improvements which will encroach in, on,above, or below the City's Easement; and
WHEREAS, to accommodate the needs of the Licensee, the City will allow the
encroachment under the tenns and conditions as set forth in this Agreement.
NOW,THEREFORE, the City and Licensee agree as follows:
AGREEMENT
1.
The 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 in, on, above, or below and
occupy a portion of the City's Easement as described in and at the location shown on
Exhibit A, but only to the extent shown thereon, for the purpose of installation of storm
water drainage system and outfall addition, and rock riprap (the "Encroachment").
Easement Encroachment Agreement-Commercial OFFICIAL RECORD Page I of 12
CITY SECRETARY Revised V2020
FT.WORTH, TX
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Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining
the Encroachment within 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.
All construction, maintenance, or operation in connection with such
Encroachment, use, and occupancy shall comply and be performed in strict compliance
with this Agreement and with the Charter, Ordinances, and Codes of the City, and in
accordance with the directions of the Director of the Transportation and Public Works
Department or the Director of the Water Department, or their duly authorized
representative. Prior to the construction of the Encroachment, Licensee shall submit all
plans and specifications to the applicable Director or duly authorized representative.
Licensee shall not commence construction of the Encroachment until such approval shall
be indicated in writing by the applicable Director or authorized representative. However,
such approval shall not relieve Licensee of responsibility and liability for concept, design,
and computation in the preparation of such plans and specifications.
3.
Licensee, 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 securing the approval and consent of the
appropriate utility companies and 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 or 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 the 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 their duly authorized
representative.
4.
Licensee agrees that the 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. The City shall bear no responsibility or liability for any
damage or disruption or other adverse consequences resulting from the Encroachment
installed by Licensee, but the City will make reasonable efforts to minimize such damage
and disruptions.
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5.
Upon termination of this Agreement, Licensee shall, at the option of and at no
expense to the City, remove the Encroachment and restore the Easement to substantially
the same condition as existed prior to installation of the Encroaclunent, in a manner
reasonably acceptable to the Director of Transportation and Public Works or the Director
of the Water Department, or their duly authorized representative, in accordance with then-
existing City specifications. It is understood and agreed to by Licensee that if this
Agreement terminates and Licensee fails to remove the Encroachment as directed and
restore the Easement, Licensee hereby gives the City permission to remove the
Encroachment and any supporting structures and assess a lien on the Property for the
costs expended by the City in taking such actions.
6.
In order to defray all costs of inspection and supervision which the 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, Licensee
agrees to pay to City at the time this Agreement is requested an application fee of in the
sum of Five Hundred Dollars($500.00).
7.
The term of this Agreement shall be for thirty (30) years, commencing on the
date this Agreement is executed by the City. However, this Agreement may be
terminated upon Licensee's noncompliance with any of the terms of this Agreement. City
shall notify Licensee in writing of any noncompliance and if not cured within thirty (30)
days, this Agreement shall be deemed terminated, unless such noncompliance is not
susceptible to cure within thirty(30) days, in which case this Agreement shall be deemed
tenninated in the event that Licensee fails to commence and take such reasonable steps as
are necessary to remedy the noncompliance within thirty (30) days after written notice
specifying the same, or having so commenced, thereafter fails to proceed diligently and
with continuity to remedy same.
8.
It is further understood and agreed between the parties hereto that the Easement to
be used and encroached upon 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
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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.
9.
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,
WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION
WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION,
MAINTENANCE, OCCUPANCY, USE, EXISTENCE, OR LOCATION OF THE
ENCROACHMENT AND USES GRANTED HEREUNDER, EXCEPT TO THE
EXTENT 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 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.
10.
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
with the understanding and agreement by Licensee that such insurance amounts may be
reasonably 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 thirty (30) days prior written notice to
the Building Official of the City. A copy of such Certificate of Insurance is attached as
"Exhibit B"and incorporated herein for all purposes. Licensee agrees to submit a similar
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Certificate of Insurance annually to the City on the anniversary date of the execution of
this Agreement.
Licensee agrees, binds, and obligates itself and 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 Licensee's contractors and subcontractors.
11.
Licensee 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 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.
12.
Licensee agrees to comply fully with all applicable federal, state, and local laws,
statutes, ordinances, codes, and regulations in connection with the construction,
operation, and maintenance of the Encroachment and uses.
13.
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.
14.
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.
15.
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
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have an interest. Licensee agrt-es that it will obtain all necessary permissions before
occupying such property.
16.
In any action brought by the City for the enforcement of the obligations of the
Licensee, the City shall be entitled to recover interest and reasonable attorneys' fees if the
City is the prevailing party in such action.
17.
The parties agree that the duties and obligations contained in Section 5 shall
survive the termination of this Agreement.
18.
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 the City, and
any attempted assigiunent 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 delayed, 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
said lender notifies City in writing within sixty (60) days of such foreclosure or
assignment and assumes all of Licensee's 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.
19.
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.
20.
This Agreement shall be binding upon the parties hereto and their successors and
assigns.
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21.
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:
CITY OF FORT WORTH BOTTLING GROUP, LLC
DocuSigned by:
B B\� 1M79360AE697B746B...
a*fyt& WAI OV,y DJnarzell(OR29,20201526CDT) J
DJ Harrell, Director Name: Martyn Wallace
Development Services Department Title: Director of PepsiCo Global Real
Estate
Date: Oct 23,2020 Date: 10/20/2020
By
ATTEST:
p�-0 F.....A Approved As To Form and Legality
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Mary Kayser, City Secretary FWBC Sec. 3210
City Secretary's Office Ivlatthew A. Murray, Assistant City Attorney
City Secretary's Office
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.
Laurie Lewis(oR]],]0]0 09:32 CDT)
Laurie Lewis
Interim Development Manager
OFFICIAL RECORD
Easement Encroachment Agreement-Commercial CITY SECRETARY Page 7 of 12
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FT.WORTH, TX
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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 D.J. Harrell,known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he 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 25th day of
October 2020
LAURIE PEQUENODIgItallyslgnedbyLAURIE �pRYPGe LAURIE PEQUENO LEWIS
LEWIS PEQUENO LEWIS n Notary Public
Date:2020.10.2518:01:03-05100' . ♦ STATE OF TEXAS
Notary I.D. 132278952
Notary Public in and for the State of Texas My Comm.Exp.Dec. 10,2023
After recording return to:
Development Services Department
Development Coordination Office
200 Texas Street
Fort Worth,Texas 76102
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
Easement Encroachment Agreement-Commercial Page 8 of]2
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STATE OF NEW YORK §
COUNTY OF WESTCHESTER §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
New York,on this day personally appeared Martyn Wallace, Director of PepsiCo GIobal
Real Estate (Title) known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that tie or she executed the same for the
purposes and consideration therein expressed, as the act and deed of Bottling Group,
LLC, a limited liability company, and in the capacity therein stated.
20th October
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
20 20 .
DocuSlgned by,
65652C898E894AC...
Notary Public in and for the DEBORAH MILL
New York Notary Public
State of DUTCHESS County
State of New York
Commission Expires 4/24/2022
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
Easement Encroachment Agreement-Commercial Page 4 of 12
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EXHIBIT A
Map of Easement and Encroachment
Easement Encroachment Agreement-Commercial Paae 10 of 12
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DocuSign Envelope ID:A9CE9893-1395-4FFF-890D-4742B180DE26
EXHIBIT B
Certificate of Insurance
Easement Encroachment Agreement-Commercial Page I 1 of 12
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EXHIBIT C
Metes and Bounds or Location Description of the Property
Easement Encroachment Agreement-Commercial Page 12 of 12
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"The project included the installation of storm water drainage system with the addition of an
outfall and rock riprap.The outfall and rock riprap are located approximately 10-feet away from
the northeast corner of the property."
ti
PLAT RECORD VOLUME 388 187
R
THE STATE, OF TEXAS
COUNTY Of TARRANT
KNOW ALL MEN BY THESE PRESENTS THAT WE,4YERS 820 CORP., O#NERS OF THE
FOLLOWING DESCRIBED ?kOPFRTY TO niT: 5
BEING A 7.249 ACRE IRACI OF LAND SITUATED IN THE JOHN HIBB SUR v,A$ TRACT
NO.638 AND THE JA4ES HUIE SURVEY,ABSTRACT 40,800, TARRANT AUNTY, T S. SAID
7,249 ACRE TRACT Of LAND BEING A PORTION OF THAT CERT ACT OF LAN' AS
)ESCRIBED IN THE DEED TO LAYERS $20 CORP. AND TIM _ iN LIR "0' P f,
49,. TARRANT COUNTY OFED RECORDS. ALSO BEING A RE LAT OF LOT CK I,
320 NORTH INDUSTRIAL PARK.RECORDED IN VOLUME 3o,PA6E $3, RRA COUNT
OECD RECORDS,SAIO 7.249 ACRE TRACT OF LAND ING RE TICUL tY D CRIBE
BY MF TES AND BOUNDS AS FOLLONS: Q
CO%PIENCING AT THE SOUTHEAST CORNER SA HU1 SURYE •
THENCE N 89°28'50' W. 137.8 F T tit 0 THE UT INE 0 $At .HUIE S vEY
AND THE NORTH LINE Of THE S J .G.R .CO. YEY, BSTRA NO. 44. RANT I
COUNTY, TEXAS, TO A 314 t H IRO DUN THE S IN iT COR R 0 AFORE,
XENTIONED 'IYERS-320 CDRP.T CT AND LSO INS I THE EST RI T.OF.OAY LINE
OF F.4. HIGHWAY NO
THENCE N 00°31' ` #, 400. F LEAV G$ D SURYE Li AND ALONG THE EAST
LINE OF SAID YERS•820 Co. .TRd AND At SA 0 RIG -OF-WAY LINE TO A 5/3
INCH IRON S . THE T OF BEGIN IIG OF THE I EREIN OESCRIBEO;
THENCE N 89 1
'1
0' W,672.00 f L 11FIG THE AST LINE OF SAID 4YERS-820,
T 0$AI RIGHT. FEAT IHE 5 A ,B INCH IRON SET:
fH£NCE H ° 't5'• w 410.00 FEET 0 A 518 INCH IRON SET;
THENCE S 89 8 0" E.6 . FEET TO A 51J INCH IRON SET, IN THE EAST LINE
D MYERS. 2 CORP,TRACT AN 0 SAID WEST RTGNT-OF.WAf LINE;
7 LACE 00137' S" 7400 T ALONG SAID EAST LINE AND ALONG SAID #EST
RI T•OF. AY LI. TO TH INT OF BEGINNING AND CONTAINING 7.249 ACRES OF
5{ LAN 'tOAT R LE`. TO BE KNOIEN AS: ;
LOT I-R,BL-OCK I
55t 820 NORTH INOUSTRIAL PARK
t
AN d001TiOF !O THE CIT'! OF FORT WORTH, fARP!INT COUNTY, iEXA$,AND DO HEREBY
DEQICATE TO THE PUBLLC USE FOREVER THE EASEMENTS AND RIGH TS.OF,fAY AS SN 1,tim
Hf.R(ON. �;�j
E'ttCU'ED THtS_1:' _ DAY OF__Y�—_A.O. 1960.
4`N P - _T
THE STATE OF EXAS
COUNTY OF 4-A._40 i