No preview available
HomeMy WebLinkAboutC06-309ENCROACHMENT EASEMENT AGREEMENT THIS AGREEMENT (hereinafter "Agreement") is made and entered into this ;~~; 1~a day of ~ ~ = + ; ~ s: ; 2006 by and between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners thereinafter "Eagle County") and Lake Creek Meadows Homeowners Association, (hereinafter "Association"). WITNESSETH: WHEREAS, Association is the manager of Lake Creek Meadows Subdivision, Section 7 and Section 18, T 5 S, R 85 W of the 6`h principal meridian in Eagle County, Colorado (hereinafter "Subject Property"). WHEREAS, Association is installing two, pedestal mounted cluster mail boxes primarily in County Road Right-of--Way at locations approved by the Edwards Postmaster on Elk Place and Idlewild Place. As part of this installation, Association is generally constructing concrete pads to support and upon which to mount the cluster box pedestals. WHEREAS, Association is desirous of constructing the mail box pedestals in Eagle County's Road Right-of--Way adjacent to the Subject Property. The locations have been adjusted pursuant to the Road & Bridge Department's request to move them closer to the edge of the right of way on Elk Place and in front of the communication pedestals at the cut de sac on Idlewild Place. These adjustments are necessary to preserve the area available and used for snow storage resulting from plowing operations throughout the winter and to likewise minimize the accumulation of snow near and around the mailbox pedestals. WHEREAS, Eagle County is willing to allow construction of the mail box pedestals in Eagle County's Road Right-of--Way pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the terms and covenants stated herein, the sufficiency of which is hereby acknowledged, Eagle County and Association agree as follows: ENCROACHMENT EASEMENT GRANT: For the consideration set forth herein, the sufficiency of which is hereby acknowledged, Eagle County hereby grants and conveys to Association, its successors and assigns, non-exclusive easements for the purposes of installing and maintaining cluster mail box units within the Eagle County Road Right-of--Way at the locations shown on Exhibit "A" attached hereto and incorporated herein by this reference (hereinafter "Encroachment Easement"). The Encroachment Easement granted in this agreement shall be possessed and enjoyed by Association, its successors and assigns, so long as the Encroachment Easement shall be used by Association in accordance with the terms and conditions of this Agreement. In the event that Association ceases to use the Encroachment Easement in accordance with the terms and conditions of this Agreement or otherwise fails to comply with any and all of the terms and r .> m conditions of this Agreement, this Agreement and Encroachment Easement may be terminated upon notice by Eagle County. Notwithstanding the foregoing paragraph, Eagle County, in its sole reasonable discretion, reserves the right to terminate this Agreement and the Encroachment Easement and to require Association to remove and/or relocate the cluster mail box units at Association's sole expense upon sixty (60) days' notice by Eagle County, Upon termination or relocation, Association agrees to restore the easement to its original condition, or as close thereto as possible, The Association agrees to re-grade and re-vegetate the disturbed area within the easement within ninety (90) days of termination. If Association shall fail to timely remove the cluster mail box units and restore the Encroachment Easement upon notice, Eagle County may do so at Association's expense. The Encroachment Easement granted by this Agreement is non-exclusive and Eagle County reserves the right to use for itself and to grant for others rights-of=way over, under, across or through the Encroachment Easement herein granted, provided that they do not interfere with Association's easement herein. Eagle County reserves the right to use and enjoy the premises to the fullest possible extent without unreasonable interference with the exercise by Association of the rights granted in this Agreement. Without limiting the foregoing, Eagle County reserves the right to place along, across, under, over and through the Encroachment Easement as many electric lines, power lines, waterlines, sewer lines, gas lines, telephone lines and other utilities as Eagle County may desire subject only to the right of Association to use the same for the purposes herein granted. The encroachment of the cluster mail box units into the County's Road Right-of Way shall not constitute any relinquishment of the County's property rights whether through claims of adverse possession or any other means. CONSTRUCTION AND MAINTENANCE OF ENCROACHMENT EASMENT: Construction, including replacement or significant alterations, and maintenance of the cluster mail box units will be the sole responsibility and expense of Association. No construction shall be commenced until approved in writing by Eagle County, such approval not to be unreasonably withheld or delayed. Association agrees to be responsible for all removal of snow that may accumulate around or in front of the mail box as the result of natural accumulation or snowplowing operations. Association agrees to be responsible for all ongoing repair and maintenance costs associated with the current and any future use of the Encroachment Easement. Whenever possible, Association shall notify and coordinate with Eagle County prior to performing any maintenance to avoid disruption within the County's Raad Right-of--Way. INDEMNIFICATION: The Association shall, to the fullest extent permitted by law, indemnify and hold harmless Eagle County and any of its officers, agents and employees against any losses, claims, damages or liabilities for which Eagle County or any of its officers, agents, or employees may become 2 subject to, insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement and the Encroachment Easement, or are based upon any performance or nonperformance by Association hereunder; and Association shall reimburse Eagle County for any and all legal and other expenses incurred by Eagle County in connection with investigating or defending any such loss, claim, damage, liability or action. 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 of, and shall be specifically enforceable by Eagle County against Association, his successors and assigns, including but not limited to any future Association of the Subject Property. The Association's obligations for restoration, repair, and indemnification shall survive termination of this Agreement and the Encroachment Easement. Eagle County and Association agree that this Agreement may be enforced for specific performance, injunctive, or other appropriate relief, including damages, as may be available according to the laws and statutes of the State of Colorado. It is specifically understood that by executing this Agreement, both Eagle County and the Association commit themselves to perform pursuant to these terms contained herein, In the event that an action is brought to enforce this Agreement, the prevailing party shall be entitled for the recovery of its costs and fees, including reasonable attorney's fees. MISCELLANEOUS: This Agreement shall be governed and construed in accordance with the laws of Colorado. Venue for any action arising out of any dispute pertaining to this Agreement shall be in Eagle, Colorado. This Agreement, and the rights and obligations created hereby, shall be binding upon and inure to the benefit of Eagle County and Association and their respective successors and assigns. Nothing herein expressed or implied is intended or should be construed to confer or give to any person or entity other than Eagle County or Association and their respective successors and assigns, any right, remedy or claim under or by reason hereof or by reason of any covenant or condition herein contained. If any portion of this Agreement is held invalid or unenforceable for any reason by a court of competent jurisdiction, such portion shall be deemed severable and its invalidity or its unenforeeability shall not affect the remaining provisions; such remaining provision shall be fully severable and this Agreement shall be construed and enforced as if such invalid provision had never been inserted into this Agreement. This Agreement may be amended, modified, changed, or terminated in whole or in part only by written agreement duly authorized and executed by both Eagle County and Association, This Agreement represents the full and complete understanding of Eagle County and Association and supersedes any prior agreements, discussions, negotiations, representations or understandings of Eagle County and Association with respect to the subject matter contained herein. 3 The parties hereto agree that neither has made or authorized any agreement with respect to the subject matter of this instrument other than expressly set forth herein, and no oral representation, promise, or consideration different from the terms herein contained shall be binding on either party, or its agents or employees hereto. All of the covenants herein contained shall be binding upon and inure to the benefits of the parties hereto, their respective heirs, personal representatives, successors and assigns. This Encroachment Easement is granted subject to prior grants of easements and other ownership interests of record, Eagle County makes no warranties as to the title of the easement conveyed. IN WITNESS WHEREOF, EAGLE COUNTY and ASSOCIATION have executed this Encroachment Easement Agreement this ~~ I t~ day of i` ~ ~ ~ - _ , 2006. ATTEST: ~~ . "~ . B a ~ # Clerk to the Boar of County e~~t~~~r~f~ Commissioners ~~ __...~ ~ {L.--- . p STATE OF ) SS. COUNTY OF ) COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS Peter .Runyon, Chairman LAKE CREEK MEADOWS HOMEOWNERS ASSOCIATION ~ ., ~~ BY: ~. Monica Benderly P President ~ . _r The foregoing instrument was acknowledged before me by of ~~ ~~ ~` ~' , 2006. My commission expires: - ~ "' ! Lv ._t ~, Notary Public <~ this ~~ ~ day . ~.~i,.....~~-r '~TAfi~ ~° ~-/ ~: e ~ s • r t .~ ,~ ~. , ~``~~ cad-°`~ try C~nmis~on Ex~~es 2lEt~ ,--,. f r' 4 EXHIBITA LAKE CREE STER MAID; ,~ 1 ~Y r ~~. ` ~(U 7 `, ! U I ~,. Q• ! v MAILBOX COMMUNICATION PEDESTALS ~ADOWS X L0~4T1O ~~ ~~ ~~ R `' v r (? ~~ f~ f f t MAILBOX N W S 1 .. t ` ~^~/ If ~O ~C f ~~a section 24. I SPECIAL PROVISIONS (For Use with Inter-Governmental Contracts) CONTROLLER'S APPROVAL. CRS 24-30-202 (1) This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may designate. 2. FUND AVAILABILITY. CRS 24-30-202 (5.5) Financial obligations of the State of Colorado payable after the curtent fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. 3. INDEMNIFICATION. To the extent authorized by law, the Contrector shall indemnify, save, and hold harmless the State, its employees and agents, against any and all daims, damages, {lability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract. No term or condition of this contract shall be construed or Interpreted as a waiver, express or implied, of any of the immunities, rights, benefds, protection, or other provisions for the parties, of the Colorado Governmental Immunity Act, CRS 24-10-10t et seq. or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. as applicable, as now or hereafter amended. 4. INDEPENDENT CONTRACTOR. 4 CCR 801-2 THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO 81ND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL PROVtOE AND KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY THE STATE) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL 8E SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR, ITS EMPLOYEES AND AGENTS. 5. NON-0ISCRIMINATION. The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. 6. CHOICE OF LAW. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any provision of this contrect, whether or not incorporated herein by reference, which provides for arbitration by any extra-judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shat{ be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at taw whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and State laws, rules, and regulations that have been or may hereafter be established. SOFTWARE PIRACY PROHIBITION Governor's Executive Orcler D 002 00 No State or other public funds payable under this Contract shall be used for the acquisition, operation, or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that, for the term of this Contract and any extensions, the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that the Contractor is in violation of this paragraph, the State may exercise any remedy available at law or equity or under this Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or applicable Vicensing restrictions. 8. EMPLOYEE FINANCIAL INTEREST. CRS 24-18-201 and CRS 24-50-507 The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. 9. ILLEGAL ALIENS -PUBLIC CONTRACTS FOR SERVICES. CRS 8-17.5-101 and 24-76.5-101 The Contractor certifies that the Contractor shall comply with the provisions of CRS 8-17.5-101 et seq. The Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract or enter into a contract with a subcontrector that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this contract. The Contractor represents, warrants, and agrees that it (i) has verified that it does not employ any illegal aliens, through participation in the Basic Pilot Employment Verification Program administered by the Social Security Administration and Department of Homeland Security, and (ii) otherwise will comply with the requirements of CRS 8-17.5-102(2)(b). The Contractor shall comply wRh all reasonable requests made in the course of an investigation under CRS 8-17.5-102 by the Colorado Department of Labor and Employment. If the Contractor fails to comply with any requirement of this provision or CRS 8-17.5-101 et seq., the State may terminate this contract for breach and the Contractor shall be liable for actual and consequential damages to the State. A Contractor that operates as a sole proprietor hereby swears or affirms under penalty of perjury that the Contractor (i) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of CRS 24-76.5-101 et seq, and (iii) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Contract. Except where exempted by federal law and except as provided in CRS 24-76.5-103(3), a Contractor that receives federal or state funds urxler this contract must confine that any individual natural person eighteen years of age or older is lawfully present In the United States pursuant to CRS 24-76.5-103(4) if such individual applies for public benefits provided under this contract. Effective Date of Special Provisions: August 7, 2006