HomeMy WebLinkAboutC05-129 Colorado Mountain College
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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
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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
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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