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HomeMy WebLinkAboutC08-206 ENCROACHMENT EASEMENT AGREEMENT THIS AGREEMENT (hereinafter "Agreement") is made and entered into this `] ~ day of July, 2008 by and between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners (hereinafter "Eagle County") and Berry Creek Metropolitan District, aquasi-municipal corporation and political subdivision of the State of Colorado, acting by and through its Board of Directors (hereinafter "Berry Creek"). Eagle County and Berry Creek are sometimes referred to herein as a Party, individually or the "Parties" collectively. WITNESSETH: WHEREAS, Eagle County owns the road and other right-of--ways along Winslow Road, which is located between Miller Ranch Road and Rawhide Road in the SE '/4 of Section 4, T 5 S, R 82 W of the 6th Principal Meridian in Eagle County (hereinafter "Subject Property"); and WHEREAS, Winslow Road provides a primary access to the Singletree Subdivision of Berry Creek; and WHEREAS, the voters within Berry Creek have decided to fund the enhancement of area in and around the Subject Property for the purpose of improved aesthetics and pedestrian safety; and WHEREAS, Berry Creek is proposing to construct sidewalks, pedestrian railing(s), a bike lane, curb(s), gutter(s), landscaping and irrigation system(s), lighting, and retaining walls (hereinafter "Improvements") on the Subject Property; and WHEREAS, the Parties have entered into that certain Intergovernmental Agreement Between Eagle County and Berry Creek Metropolitan District Concerning Winslow Road Underpass Enhancements of even date herewith, pursuant to which the Improvements will be funded and constructed by Berry Creek (the "IGA"); and WHEREAS, Eagle County is willing to allow construction of the Improvements on the Subject Property pursuant to the terms and conditions of the IGA and this Agreement. NOW, THEREFORE, in consideration of the terms and covenants stated herein, the sufficiency of which is hereby acknowledged, Eagle County and Berry Creek agree as follows: ENCROACHMENT EASEMENT GRANT: Eagle County hereby grants and conveys to Berry Creek, their successors and assigns, a non- exclusive easement for I) the purposes of constructing the Improvements within the Subject Property at the locations shown on Exhibit "A" attached hereto and incorporated herein by this reference; and 2) the ongoing maintenance and repair of the those Improvements as will be shown in Berry Creek's "as built" project plans approved by Eagle County pursuant hereto, and thereafter incorporated herein by this reference (hereinafter, the "Encroachment Easement"). The Encroachment Easement shall be possessed and enjoyed by Berry Creek, its successors and assigns, so long as the Encroachment Easement shall be used by Berry Creek in accordance with the terms and conditions of this Agreement. In the event that Berry Creek 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 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 discretion, reserves the right to terminate this Agreement and the Encroachment Easement and require Berry Creek to remove and/or relocate the Improvements at Berry Creek's sole expense upon notice by Eagle County. Upon termination or relocation, Berry Creek agrees to restore the Encroachment Easement to substantially the same condition it was in prior to the original construction of the Improvements, except as it may be modified to accommodate any relocation. If Berry Creek shall fail to timely remove or relocate the Improvements and restore the Encroachment Easement upon notice, Eagle County may do so at Berry Creek'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 to others rights-of--way and uses over, under, across or through the Encroachment Easement, provided that such uses do not unreasonably interfere with the Improvements or Berry Creek's rights to the Encroachment Easement. 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 Berry Creek to use the same for the purposes herein granted. The encroachment of the Improvements into Eagle County's Road Right-of--Way shall not constitute any relinquishment of Eagle County's property rights whether through claims of adverse possession or any other means. CONSTRUCTION AND MAINTENANCE OF IMPROVEMENTS: Pursuant to the IGA and this Agreement, construction, including replacement or significant alterations, and maintenance of the Improvements, with the exception of the roadway pavement, will be the sole responsibility and at the sole expense of Berry Creek. All construction, including replacement or significant alterations, shall be performed pursuant to the Plans as defined in the IGA. No replacement or significant alteration of the Improvements shall be commenced until additional plans and specifications therefor shall have been prepared and approved in writing by Eagle County, such approval not to be unreasonably withheld, delayed or conditioned. Berry Creek agrees to be solely responsible for all ongoing repair and maintenance costs associated with the Improvements and the Encroachment Easement, including without limitation snow removal from the sidewalks, and for all sidewalk, landscaping, irrigation, lighting, retaining wall and bike lane maintenance. Whenever possible, Berry Creek shall notify and coordinate with Eagle County prior to performing any significant repair or maintenance so as to avoid disruption within Eagle County's Road Right-of--Way. 2 4Vlillet Ranch Rd TQ pro}ect Location US 6 Carter-Burgess ~~ / J~~ L~~, /,'! ~ b" i , /. r `~`~' `'` r- ' r '' j! `\ ~~. ,_ ~ ,~ ~ ~- ~\ • Preferred ("oucept South Sick Yl~u - I ~, -- ~ a I ! 2' 13' 13' " Paved Dme Onve S' sme Lane' ' Cahe sbawalk 33' WidN From Wall to Wall Esistiug Section ~I~__ ~__ I r ~ i r_-'~ ~°~E~.E° _ ,:oar _ -'°w" __ __. - PreferrEYl Uorx•ept Seetiou i r :~. ~ ±~'~ - l`~Swcu7u[[ ~-i/ °*- i y_' SGVGLF1RfE -~'-,~~ , , tg_ ~r _-_ i • ~"'+hS ~. 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