HomeMy WebLinkAboutC05-129 Colorado Mountain College dl""II" """"'"' "" "" 1IIIIIIIIIIIIIk5~~~~:4 .27' (;,{)t>.-.I1- '1 - / () Teak J Slmonton Eagle, CO 23 R 0.00 0 0.00 ENCROACHMENT, USE AND MAINTENANCE AGREEMENT BETWEEN PARTNERSHIP FOR EDUCATION, EAGLE COUNTY, COLORADO AND COLORADO MOUNTAIN JUNIOR COLLEGE DISTRICT THIS ENCROACHMENT, USE AND MAINTE~ANCE AGREEMENT (the "Agreement") is made and entered into this..2di2. day of ~r!J-; ,2005, by and between PARTNERSHIP FOR EDUCATION (hereinafter "Partnership"), EAGLE COUNTY, COLORADO a body corporate and politic (hereinafter "County"), and COLORADO MOUNTAIN JUNIOR COLLEGE DISTRICT, also known as COLORADO MOUNTAIN COLLEGE (hereinafter "CMC"); RECITALS WHEREAS, the Partnership is a separate legal entity comprised of the County and Eagle County School District RE-50J (hereinafter "School District"), formed pursuant to Colorado Revised Statutes Section 29-1-201, et. seq., and is the owner of Tract A of the Berry Creek/Miller Ranch Planned Unit Development ("Tract A") in accordance with the plat recorded on June 25, 2002, at Reception No. 799649, County of Eagle, State of Colorado (the "Plat"); WHEREAS, the County is a statutorily created and established county of the State of Colorado, pursuant to Colorado Revised Statutes Section 30-5-121; and WHEREAS, CMC is a statutory junior college district organized and existing in the State of Colorado, pursuant to Colorado Revised Statutes Section 23-71-101, et. seq.; and WHEREAS, pursuant to a Colorado Mountain College Ground Lease (the "Ground Lease") recorded on September 26, 2002, at Reception No. 808445, County of Eagle, State of Colorado, CMC has leased Tract A from the Partnership for the purposes and upon the terms set forth in the Ground Lease; and WHEREAS, the Berry Creek/Miller Ranch Planned Unit Development represents a cooperative development effort of various governmental entities including Eagle County, the School District and CMC; WHEREAS, at the time of creating the Plat a round-about was included in anticipation of traffic to be generated by CMC and a future high school to be developed by the School District on Tract B of the Berry Creek/Miller Ranch PUD, and the then- expected entrance locations for such facilities; and WHEREAS, the School District has not finalized its plans for a high school on Tract B and it is anticipated that the round-about shown on the Plat, and which has not been constructed, will be eliminated or relocated through are-platting process at a future date to accommodate the high school design; and WHEREAS, pursuant to the Ground Lease, CMC has constructed a building and appurtenant facilities, including parking facilities (the "Parking Facilities"), for use in connection with CMC's post-secondary education facility to be operated on Tract A; and WHEREAS, with the knowledge of the Partnership and County, portions of CMC's Parking Facilities have been constructed on a portion of Tract A designated on the Plat as "20' Utility and Road Maintenance Easement" (the "Utility and Road Easement"), and portions of CMC's Parking Facilities have been constructed on a portion of the Miller Ranch Road right-of-way as established and dedicated to Eagle County on the Plat; and WHEREAS, the Miller Ranch Road right-of-way which contains a portion of CMC's Parking Facilities is the platted round-about which has not been built and will likely be eliminated or relocated &~rough re-platti.'lg ill the future; and WHEREAS, the parties desire that CMC be authorized and permitted to utilize certain portions of the Utility and Road Easement and the Miller Ranch Road right- of-way for CMC's Parking Facilities, and related purposes, as further set forth hereinbelow; and WHEREAS, the Partnership, the County and CMC have the power and authority to enter into this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the promises and the covenants and agreements herein contained to be kept and performed by the parties hereto, it is hereby agreed as follows: 1. GRANT OF EASEMENT AND DESCRIPTION OF REAL PROPERTY SUBJECT TO THIS AGREEMENT. For and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, the Partnership and the County do hereby grant, convey and transfer unto CMC, its successors and assigns, a non-exclusive easement for purposes of constructing, maintaining and operating its Parking Facilities and all appurtenances related thereto across the Utility and Road Easement and a portion of the Eagle County Miller Ranch Road Right of Way at a location shown on Exhibit "A" attached hereto and incorporated herein by this reference (the "Encroachment Parcel"). 2. WARRANTY. The Partnership and County warrant that they have the lawful right to grant and convey such easement subject to prior grants of easements and other ownership interests of record. 3. USES BY PARTNERSHIP AND COUNTY AND THIRD PARTIES. The parties acknowledge and agree that at the time of executing this Agreement neither the Partnership nor the County has located any facilities within the Utility and Road Easement or in the Miller Ranch Road right of way within the Encroachment Parcel, except 2 for a sidewalk connecting to a bus turnout within the Miller Ranch Road right of way. The parties agree that in addition to the sidewalk the Encroachment Parcel is affected by any easements and interests of record. CMC agrees to comply with the terms of such easements and any other interests of record and any costs of restoration associated with such easements and interests shall be borne by CMC. The Partnership and County do not anticipate placing any permanent building or structure within the Encroachment Parcel other than shrubs, plants, sidewalks, driveways or parking areas, the placement of any of which shall be subject to the terms of this Agreement. Notwithstanding the foregoing, the easement granted to CMC is non-exclusive and Eagle County reserves the right to use for itself and to grant to others rights of way over, under, across or through the Encroachment Parcel provided that they do not unreasonably interfere with CMC's easement as granted herein and provided further that neither the County nor the Partnership shall construct or authorize any building, structure or roadway on CMC's Parking Facilities without CMC's prior written consent which consent shall not be unreasonably withheld. In the event any future utility facilities are to be located within the Encroachment Parcel, the parties agree to work together to locate such facilities to minimize any impact to the Parking Facilities. Specifically, CMC is hereby granted the right to timely review and comment on proposed utilities or other facility installation prior to such installation absent exigent circumstances. Eagle County and the Partnership shall not be responsible for restoration of Parking Facilities in the event of work in the Encroachment Parcel by a third party. However Eagle County will make best efforts to ensure compliance with Eagle County Land Use Regulations and Colorado Revised Statutes which require site restoration. 4. TERMINATION OF EASEMENT. The easement granted in this Agreement shall be possessed and enjoyed by CMC, its successors and assigns, so long as the Encroachment Parcel shall be used by CMC, its successors and assigns in accordance with the terms and conditions of this Agreement. In the event that CMC ceases to use the Encroachment Parcel in accordance with the terms and conditions of this Agreement, this Agreement and easement may be terminated upon thirty days notice by Eagle County or the Partnership. The parties acknowledge that Miller Ranch Road may be re-platted. Such re- platting may result in a boundary adjustment to Tract A to include the Encroachment Parcel, or may require accommodation of a future round-about in another location which may affect property leased or owned by CMC and may eliminate the need for this Agreement or alternatively may result in a need to amend the terms of this Agreement. The parties agree to work together in good faith at the time of re-platting. 5. MAINTENANCE AND INDEMNIFICATION BY CMC. CMC shall repair and maintain all of its Parking Facilities within the Encroachment Parcel at CMC's sole expense, and shall indemnify, defend and hold harmless the Partnership and the County from and against any and all claims, costs and liabilities in connection therewith. CMC shall cause reasonable and good care to be taken of the Parking Facilities and shall prompdy cause to be made all repairs necessary to keep the same in good and lawful order and condition provided, however, that any and all improvements and repairs to the ditches, 3 bus turnout and appurtenant fixtures thereto within the Encroachment Parcel, and any claims, costs, and liabilities in any manner arising out of or related to the Partnership's and the County's ownership and operation of those portions of the Encroachment Parcel utilized for Partnership or County purposes shall not be the responsibility of CMC unless the damage or liability is caused by CMC. County and Partnership hereby acknowledge that the Parking Facilities have been constructed at the time of executing this Agreement and that the same are acceptable as installed. Future construction, including replacement or significant alterations and maintenance of Parking Facilities, will be the sole responsibility and expense of CMC. All future construction, including replacement or significant alterations shall be performed pursuant to plans and specifications prepared by a Colorado Registered Professional Engineer, and no construction shall be commenced until such plans and specifications have been approved in writing by Eagle County and the Partnership, such approval to not be unreasonably withheld or delayed. CMC's obligation for restoration, repair and indemnification shall survive termination of this Agreement and the Encroachment Easement as to conditions or obligations existing at or prior to the termination. 6. ADDITIONAL DOCUMENTS OR ACTIONS. The parties agree to execute any additional documents and to take any additional actions necessary to carry out this Agreement. 7. ASSIGNABILITY. CMC may not assign its rights and obligations hereunder to a third party without the prior written consent of the Partnership and the County. 8. ENFORCEMENT REMEDIES. This Agreement shall be recorded with the Eagle County Clerk and Recorder's Office and shall constitute covenants running with the subject property as a burden thereon, for the benefit thereof, and shall be specifically enforceable by the parties hereto and their successors and assigns. CMC, County and the Partnership agree that this Agreement may be enforced by specific performance, injunctive or other appropriate relief, including damages, as may be available according to the laws of the State of Colorado. In the event that an action is brought to enforce this Agreement, the prevailing party shall recover its costs and fees, including reasonable attorney's fees. 9. BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon, the parties, and their respective legal representatives, successors, and aSSigns. 10. SEVERABILITY. If any covenant, condition or provision contained in this Agreement is held to be invalid by any court of competent jurisdiction, or otherwise appears to be invalid, such invalidity shall not affect the validity of any other covenant, condition or provision herein contained; provided, however, that the invalidity of any such covenant, condition or provision does not materially prejudice either party in its respective rights and obligations contained in the remaining valid covenants, conditions and provisions of this Agreement. 4 11. NONWAIVER OF RIGHTS. The waiver by any party to this Agreement of a breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party. No waiver of default by either party of any of the terms, covenants, and conditions hereof to be performed, kept and observed by the other party shall be construed, or shall operate as a waiver of any subsequent default of any of the terms, covenants, or conditions herein contained, to be performed, kept and observed by the other party. 12. GOVERNING LAW, VENUE, JURISDICTION. This Agreement and all disputes arising hereunder shall be governed by the laws of the State of Colorado, and the parties agree that venue and jurisdiction over any claim arising from this Agreement shall lie in the courts of Eagle County, Colorado. 13. PARAGRAPH CAPTIONS. The captions of the paragraphs of this Agreement are set forth only for convenience and reference, and are not intended in any way to defme, limit, or describe exclusively the scope or intent of this Agreement. 14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto and all other representations or statements heretofore made, verbal or written, are merged and integrated herein, and this Agreement may be amended only in writing, and executed by duly authorized representatives of the parties hereto. 15. NOTICE. Any written notice required by this Agreement shall be deemed delivered on the happening of any of the following: (a) hand delivery to the person at the address below; (b) delivery by facsimile with confirmation of receipt to the fax number below; or (c) within three (3) days of being sent certified first class mail, postage prepaid, return receipt requested addressed as follows: (1) Partnership for Education c/o Eagle County Attorney P.O. Box 850 Eagle, CO. 81631 Phone: 970-328-8685 Fax: 970-328-8699 And c/o Eagle County School District RE-50J P.O. Box 740 Eagle, CO 81631 Phone: 970-328-2747 Fax: 970-328-1024 5 (2) Eagle County: Eagle County Attorney P.O. Box 850 Eagle, CO 81631 Phone: (970) 328-8685 Fax: (970) 328-8699 Colorado Mountain College Vice President Colorado Mountain College P.O. Box 10001 Glenwood Springs, CO 81602 Phone: (970) 947-8321 Fax: (970) 947-8385 16. INTERESTED THIRD PARTIES. Nothing herein expressed or implied is intended or should be construed to confer or give to any third party other than CMC, the County and the Partnership, any right, remedy or claim under or by reason hereof or by reason of any covenant or condition herein contained, nor limit in any way the powers and responsibilities of the parties hereto. IN WITNESS WHEREOF, the parties hereto have afftxed their signatures as follows: P FOR EDUCATION ... F EAGLE, STATE OF COLORADO g its Board of County Commissioners .... COLS::~?;N~'/ By: ""'" 6 STATE OF COLORADO ) )ss. My Commis$ioll Ell" Sept 15, *' COUNTY OF EAGLE ) The foregoing instrument was subscribed to and sworn to before me this 'J..~ day of April, 2005, by Arn M. Menconi as Chairman of the Partnership for Education. WITNESS my hand and official seal. My commission expires: ~ .ep1. ('$ f () t') (SEAL) ~~tJ~ Notary Public STATE OF COLORADO ) )ss. COUNTY OF EAGLE ) The foregoing instrument was subscribed to and sworn to before me this Jl., day of April, 2005, by Am M. Menconi as Chairman of Eagle County Board of County Commissioners. WITNESS my hand and official seal. My commission (~ 54i - 1$ , 0 6 (SEAL) ~ k/l( Notary Public STATE OF COLORADO ) iiIV !AlI;~ &pftS Sept 15, *' ~ UQ )ss. COUNTY OF ~ A ) V ~ The foregoing instrument was subscribed to and sworn to before me this.Ji!..:. ay of April, 2005, bp;;.., .s;c"'-n~~ asO.v' of- f>"'''~'ifcolorndo MounwnJunior College District. WITNESS my hand and official seal. MYCO=Z:Z~~~ Notary Public for Education \Encroachment Agreementclean3-22.doc 7 /:~ ENCROACHMENT PARCEL TRACT A OF BERRY CREEk/MILLER RANCH P,U,D SUBDIVISION SECTION 4) T5S) R82w) EAGLE COUNTY) STATE OF COLORADO I SCALE: 1/1 = 40' R=367.00 L=175.51 b=2T24'03" CD=173.84 C8=518'27'31"E --- - ----- - -- - ENCROACHMENT PARCEL A PARCEL OF LAND SITUATED IN TRACT A OF THE BERRY CREEK/MILLER RANCH PLANNED UNIT DEVELOPMENT, COUNTY OF EAGLE, STATE OF COLORADO; SAID PARCEL OF LAND BEING MORE PARTICULAR DESCRIBED AS FOLLOWS: COMMENCING AT THE WEST QUARTER CORNER OF SECTION 4, A 3-1/2/1 ALUMINUM CAP (ALPINE ENG. 1993) IN PLACE; THENCE N64"41'42/1E A DISTANCE OF 607.17 FEET TO A POINT ON THE WESTERLY LINE OF A 20.0' ROAD AND UTILITY EASEMENT, THE POINT OF BEGINNING: THENCE LEAVING SAID 20.0' EASEMENT N60'09'25/1E A DISTANCE OF. 21.21 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 367.00 FEET AND A CENTRAL ANGLE OF 27'24'03/1, A DISTANCE OF 175.51 FEET (CHORD BEARS S18'27'31/1E 173.84 FEET); THENCE S04'45'30/lE 53.43 FEET TO A POINT ON THE WESTERLY LINE OF A 20.0' ROAD AND UTILITY EASEMENT; THENCE ALONG SAID WESTERLY LINE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 115.00 FEET AND A CENTRAL ANGLE OF 86'02'19/1, A DISTANCE OF 172.69 FEET (CHORD BEARS N19'25' 38/1W 156.92 FEET); THENCE CONTINUING ALONG SAID WESTERLY LINE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 285.00 FEET AND A CENTRAL ANGLE OF 13'04'38/1, A DISTANCE OF 65.05 FEET (CHORD BEARS N23'18'16/1W 64.91 FEET); TO THE POINT OF BEGINNING, SAID PARCEL CONTAINING 7542 SQUARE FEET MORE OR LESS. DATE: 2-25-04 JOB NO.: 2021007.1253 \EASEMENTS HIGH COUNTRY ENGINEERING, INC. 1517 BLAKE AVENUE - SUITE 101 GLENWOOD SPRINGS, CO 81601 (970) 945-8676 EXHIBIT A