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HomeMy WebLinkAboutC08-404IINVIII~INIAH II~VIIIVIII%~ul II hullUI~I H When Recorded, Return to: Kerri P. Assell t p Jones & Keller, P.C. ~ ~? .; ~ i~~ ~m - 4600 S. Ulster Street, Suite 880 Denver, Colorado 80237 WEST END EAGLE RIVER PRESERVE ACCESS AGREEMENT THIS ACCESS AGRE MENT (this "Agreement") is made and entered into this f~~ day o .~-, 2008, by and between EAGLE COUNTY, a governmental entity and political subdivision of the State of Colorado whose address is 500 Broadway, Eagle, Colorado 81631-0850 ("Grantor"), and BCP-MIDTOWN INVESTMENTS II, LLC, a Delaware limited liability company, its successors and assigns, whose address is 2601 Blake Street, Suite 300, Denver, Colorado 80205 ("Grantee"). Grantor and Grantee shall collectively be referred to as "Parties." L. GRANT OF RIGHTS OF ACCESS. Grantor does hereby grant and convey unto Grantee, its successors and assigns, two non-exclusive rights of access (each an "Access" and, collectively, the "Access Rights") and the right to construct, install, use, remove, replace, add to, maintain, repair, operate, reconstruct, inspect, change or alter two pipelines and appurtenant drainage infrastructure, together with all necessary rights-of-way for convenient ingress and egress thereto and therefrom and the right, upon not less than seven (7) days advance written notice to Grantor specifying the anticipated start and completion dates of the initial construction of the pipelines and appurtenant drainage infrastructure, to occupy and use, from time to time, as much of the adjoining land of Grantor for such periods of time as may be reasonably necessary for any of the aforesaid purposes, over, under, and across (a) the following two parcels of real property (respectively, "Parcel 1" and "Parcel 2"), located in Eagle County, Colorado, described as follows: See Attached Exhibit A -Legal Descriptions of Parcel l and Parcel 2 See Attached Exhibit B -Depiction of Parcel 1 See Attached Exhibit C -Depiction of Parcel 2 and (b) two tracts 25 feet in width (the "Temporary Rights of Access") lying adjacent to the easterly and westerly boundaries of each of Parcel 1 and Parcel 2 for a period from the date hereof until completion of the installation of the pipelines and appurtenant drainage infrastructure and restoration as set forth below in Article III f~ereof, provided, however, that the Temporary Rights of Access shall remain for a period terminating no later than November 30, 2009. II. DELAYS, BREACH OF TERMS OF THIS AGREEMENT, NOTICE AND RIGHT TO CURE 2.1 The parties expressly recognize and agree that Grantor heretofore has conveyed to Eagle Valley Land Trust ("EVLT") as holder a Deed of Conservation easement on the land, which Deed is recorded at Reception No. 929980 in the real property records of Eagle County, as amended ("Conservation Easement"), which Conservation Easement must be respected in implementing this Agreement. In interpreting and applying the provisions of section 2.1 hereof or any other pertinent provision of this Agreement, the language of such section shall be construed so as to be consistent with the obligations of Grantor and the rights of the EVLT as set forth in that Conservation Easement. 2.2 If EVLT reasonably determines that there has been a material violation of this Agreement, EVLT shall immediately notify Grantor and Grantee in writing of the nature of the alleged violation in accordance with Section 6 of the Conservation Easement. Grantor shall promptly give Grantee written notice of such alleged violation, and Grantee shall have the right and power to cure such violation within twenty (20) days of receipt of such notice from Grantor. Grantee may within ten (10) days of receipt of such notice request a meeting with Grantor's representative and representatives of EVLT to discuss and attempt to resolve any disagreement as to the existence of the alleged violation. In the event that the alleged violation has not been cured within twenty (20) days as set forth above, and Grantee has not shown to Grantor's reasonable satisfaction that it is proceeding diligently in a good faith effort to effect a cure as quickly as possible, the Grantor shall have the right to suspend the agreement pending judicial resolution of the dispute. In such judicial proceeding, Grantee shall have the burden of proving by clear and convincing evidence that it has been and is attempting to cure the violation as quickly as possible. Inability to obtain funds to achieve the cure shall not be a defense. The parties and EVLT agree to cooperate fully in expediting such judicial resolution. 2.3 In the event that Grantee is unable to commence or complete the phase of such development facilitated by this Agreement within the time limits set forth herein, then the parties will meet to discuss in good faith whether to amend this Agreement to extend such time limits so as to accommodate the reason for such inability, provided that such amendment shall be consistent with the terms of the Conservation Easement as it may then exist or as EVLT and Grantor may agree to amend such Conservation Easement. III. TERMS AND CONDITIONS. Grantor and Grantee agree that the Access Rights are made and shall remain subject to the following terms and conditions for so long as such interests may exist: 3.1 Construction of Pipelines and Appurtenant Drainage Infrastructure. Grantee agrees, at its sole cost and expense, to construct two pipelines (one on each of Parcel 1 and Parcel 2) and appurtenant drainage infrastructure in accordance with plans as approved by Grantor. 3.2 Ownership of Pipelines and Appurtenant Drainage Infrastructure. The Parties agree that the pipelines and appurtenant drainage infrastructure shall be and remain the personal property of Grantee. 3.3 Alteration of Pipelines and Appurtenant Drainage Infrastructure. With Grantor's prior approval, which approval shall not be unreasonably withheld, conditioned or delayed, Grantee shall have the right to alter the pipelines and appurtenant drainage infrastructure as it deems appropriate so long as such alterations do not violate the other terms of this Agreement. 3.4 Maintenance, Repair and Replacement of Pipelines and Appurtenant Drainage Infrastructure. Grantee agrees, at its sole cost and expense, to maintain and repair or replace the pipelines and appurtenant drainage infrastructure installed hereunder so that they are at all times fully functional. 3.5 Improvements Within Rights of Access. Grantor agrees for itself and its successors and assigns, while reserving the right to use Parcel 1 and Parcel 2 for all purposes not inconsistent with the rights herein granted to Grantee, that for the term of this Agreement, no structure shall be erected on Parcel 1 or Parcel 2 and that neither Parcel 1 nor Parcel 2 shall be used in any manner which will interfere with or damage the pipelines and appurtenant drainage infrastructure installed pursuant to this grant, or interfere with the maintenance, repair and replacement of said pipelines and appurtenant drainage infrastructure. 3.6 Restoration. Grantee shall restore Parcel 1 and Parcel 2 and the surface of any ground it may disturb in the course of exercising any of its rights under this Agreement to substantially the same condition that existed prior to such use by Grantee. 3.7 Ownership of Parcel 1 and Parcel 2. Grantor covenants that it is the owner of Parcel 1 and Parcel 2 and that it is free to enter into this Agreement. TV. MISCELLANEOUS. 4.1 All provisions herein contained, including the benefits, burdens and covenants, are intended to run with the land and shall be binding upon and inure to the benefit of the respective Parties and their respective legal representatives, heirs, executors, administrators, successors and permitted assigns. 4.2 Grantee may, upon notice to but without the consent of the Grantor, assign some or all of Grantee's rights and responsibilities under this Agreement to a legally constituted owner's association for the West End and/or to a subsequent owner or owners of all or part of the real property on which The West End project is located, who shall assume the same in writing. Once assigned and assumed by such assignee or assignees, Grantee shall be automatically released and forever discharged with respect to the rights and responsibilities so assigned, except that Grantee's liability for acts or omissions occurring prior to the assignment shall survive the assignment. This Agreement may be assigned by Grantor without the prior written consent of Grantee. 4.3 Other than the West End Temporary Access Agreement, the West End Readoption of and First Amendment to 1996 Eagle River Water and Sanitation District/Upper Eagle Regional Authority Easement, the West End Indemnification Agreement and the West End Maintenance Agreement being entered into by the parties hereto and/or recorded concurrently herewith, this Agreement constitutes the entire agreement between Grantor and Grantee relating to the subject matter hereof and supersedes all prior or contemporaneous agreements, negotiations, discussions and understandings, oral or written. This Agreement maybe modified by written amendment, only executed by Grantor and Grantee. Without limiting the generality of the foregoing, the conduct of any of the Parties shall not be deemed a waiver or modification of this Agreement. 4.4 The laws of the State of Colorado, without regard to conflicts of laws principles, shall govern this Agreement. Venue for any action to enforce or interpret the provisions of this Agreement shall be in the Eagle County, Colorado Fifth Judicial District Court. 4.5 If a term, provision, covenant, agreement or condition of this Agreement is held by a court of competent jurisdiction to be void, invalid, or unenforceable, the same shall not affect any other portion of this Agreement and the remainder shall be effective as though such term, provision, covenant, agreement, or condition had not been contained herein. 4.6 Either Party's failure to insist upon strict compliance with any provision hereof or its failure to enforce any rights or remedies in any instance shall not constitute or be deemed a waiver of any such provision, right or remedy in the absence of a signed writing by such Party agreeing to such waiver. [signature page follows] 4 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. GRANTOR: COUNTY OF EAGLE, STATE OF COLORADO BY AND THROUGH BO~ OF COUNTY CO ~CIOTf~~~i! By: ivy/ Name: ~, Title: Chairman ATT B y. ~ . Clerk to the Board ~ti'~ l GRAN'T'EE: v~ - of ~~~ ~ ®~ ~, x ti o County Commissi rtno° ~- ~~ BCP-MIDTOWN INVESTMENTS II, LLC, a Delaware limited liability company B y: Name: +~~- ~ ~r STATE OF COLORADO ) ss. COUNTY OF ~ ~ ~ ) -~~, '~ The foregoing document was acknowledged before me this ~Z day of ~l;w~-~-~C~. ~. , 2008, by~3(~~ u=. `~i~ , as Manager of BCP-Midtown Investments II, LLC, a Delaware limited liability company. Witness my hand and official seal. My Commission Expires: HUTC~ Q~~r~GTA RY/~.`~o o' .y ~q~FOF Bo~o~~a ~` ~~~ ~~ ~~ Notary Public MY Commission Expires 11!05/2010 STATE OF COLORADO ) ss. COUNTY OF EAGLE The foregoing current ~ a acknowledged before me this day of November, 2008, by ~ - ~ :.~-` -~,-:_. , as Chairman of the Eagle County, Colorado Board of County Commissioner, Witness my hand and official sea My Commission Expires: ~ ~ ~ 1~1` /~ F ~ ~^ ,!/ f1 NANCY R. WRIGHT NOTARY PUBLIC STATE OF COLORADO My Commission Expires 12/18/2010 ~' Exhibit A Legal Descriptions of Parcel 1 and Parcel 2 EXHIBIT EXHIBIT A SHEET 1 OF 4 PARCELI A PARCEL OF LAND TWENTY (20) FEET IN WIDTH BEING PART OF PARCEL A, EATON RANCH, RECORDED AT RECEPTION NO. 927914 OF THE RECORDS OF THE EAGLE COUNTY CLERK AND RECORDER, LOCATED IN THE NORTHEAST QUARTER OF SECTION 5, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE EAST QUARTER CORNER OF SAID SECTION 5 AND CONSIDERING THE SOUTH LINE OF THE NORTHEAST QUARTER OF SAID SECTION 5 TO BEAR NORTH 89°43'32" WEST WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO; THENCE NORTH 89°43'32" WEST ALONG SAID SOUTH LINE, A DISTANCE OF 1714.33 FEET; THENCE NORTH 00°16'28" EAST, A DISTANCE OF 12.78 FEET TO TO A POINT ON THE BOUNDARY OF THAT PROPERTY LINE AGREEMENT RECORDED AT RECEPTION N0.200606039 OF THE RECORDS OF THE EAGLE COUNTY CLERK AND RECORDER, SAID POINT ALSO BEING THE POINT OF BEGINNING; THENCE NORTH 88°17'13" WEST ALONG SAID BOUNDARY, A DISTANCE OF 21.53 FEET; THENCE NORTH 23°25'54" EAST, A DISTANCE OF 190.24 FEET; THENCE SOUTH 66°34'06" EAST, A DISTANCE OF 20.00 FEET; THENCE SOUTH 23°25'54" WEST, A DISTANCE OF 182.27 FEET TO THE POINT OF BEGINNING; SAID PARCEL CONTAINS AN AREA OF 3,725 SQUARE FEET, OR 0.09 ACRES, MORE OR LESS. PARCEL 2 A PARCEL OF LAND TWENTY (20) FEET IN WIDTH BEING PART OF PARCEL A, EATON RANCH, RECORDED AT RECEPTION NO.927914 OF THE RECORDS OF THE EAGLE COUNTY CLERK AND RECORDER, LOCATED IN THE NORTHEAST QUARTER OF SECTION 5, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE EAST QUARTER CORNER OF THE SAID SECTION 5 AND CONSIDERING THE SOUTH LINE OF THE NORTHEAST QUARTER OF SAID SECTION 5 TO BEAR NORTH 89° 43'32" WEST WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO; Carroll & Lange Processional Engineers & Land Surveyor 165 South Union Blvd Suite 156 Lakewood Colorado 60228 (303) 960 0200 P \3650\EXHIBITOFFSITE-ESMTSOWC SHEET~OF A. PREPARED 0616/07. REV OI~S!OB EXHIBIT A SHEET 2 OF 4 PARCEL 2 -CONTINUED THENCE NORTH 89°43'32" WEST ALONG SAID SOUTH LINE, A DISTANCE OF 1382.54 FEET; THENCE NORTH 00°16'28" EAST, A DISTANCE OF 2.83 FEET TO A POINT ON THE BOUNDARY OF THAT PROPERTY LINE AGREEMENT RECORDED AT RECEPTION NO. 200731521 OF THE RECORDS OF THE EAGLE COUNTY CLERK AND RECORDER. SAID POINT ALSO BEING THE POINT OF BEGINNING; THENCE ALONG SAID BOUNDARY THE FOLLOWING TWO (2) COURSES: 1) THENCE SOUTH $7°27'30" WEST, A DISTANCE OF 13.86 FEET; 2) THENCE NORTH 87°56'01" WEST, A DISTANCE OF 9.06 FEET; THENCE NORTH 29°53'01" WEST, A DISTANCE OF 78.03 FEET; THENCE NORTH 60°06'59" EAST, A DISTANCE OF 20.00 FEET; THENCE SOUTH 29°53'01" EAST, A DISTANCE OF 89.20 FEET TO THE POINT OF BEGINNING; SAID PARCEL CONTAINS AN AREA OF 1,677 SQUARE FEET, OR 0.04 ACRES, MORE OR LESS. I, THOMAS D. STAAB, A SURVEYOR LtC • IN THE STATE OF COLORADO, DO HEREBY CERTIFY % VE LEGAL DESCRIPTION WAS PREPARED BY h~ DIRECT SUPERVISION AND CHECKING. THOMAS D. STAAB, P.L.S. 25 FOR AND ON BEHALF OF CARROLL & DATE Carroll & Lange Professional Engineers S Land Surveyors 165 South Union BNd Sulte 156 (303) 9800200 V1^5~^\EXHIBITAOFF5ITE-ESMTS OWG SHEEP 2 OF4 PREPARED t]6ka~Q7 KEV O7/1Si01 Exhibit B Depiction of Parcel l io EXHIBIT __ EXHIBIT S SHEET 3 OF 4 ses~ ti a~,°.e'F PARCEL 1 CONTAINS 3,725 SFt 0.09 ACt CENTER SEC 5 NO MONUMENT FOUND • ~.- N88'17'33'W 21.53' FOUNO WITNESS CORNER TO CENTER OF SEG710N 5, 3-1/4" ALUM. CAP LS 28286 ON NO. 6 R£BAR 50.00 EAST OF CALCULATED LOCA710N OF CENTER ~ SECTION 5 ON UNE W1TH E 1/4 CORNER. rr~ hh 2~~~ +3 H~ N~ y PARCEL A EATON RANCH REC. N0. 927914 PROPERTY LINE AGREEMENT REC. N0. 200606039 LEGEND: • DENOTES A CHANGE IN COURSE ONLY. NOTE: TH15 EXHIBIT DOES NOT REPRESENT A MONUMENT SURVEY IT IS INTENDED ONLY TO DEPICT THE ATTACHED DESCRIPTION. K -~- ~"'~ Carroll ~ Lange vmlessmnal En9~nerrs F, 1 and Surveyors \ / 165 SU1116 UNUn Blvd `i~Ple 156 1,~wrwnnn fnin~a~in R~lJ'.~R SCALE: I" = 50' r+nsl~n;n Dzon P \3650\E%HIBIT\OFF61 TE-ESMTS DWG, SHEET 3 OF a, PREPnRED 06/10/07, RE ul PaNr aF PAERalN.EN'LNf _ N89'43'32"W 1714.33' _ (BASIS OF BEARING) T N89 43'32"W S UNE Nf 1/4 SEC. 5 N00'16'28"E 12.78' aNr a- COA/M CEMENT E i/4 COR SEC 5 FND 3-1/4" ALUM CAP STAMPED 'ALPINE ENG" PROPOSED SUBDIVISION: THE WEST END P.U.D. Exhibit C Depiction of Parcel 2 EXHIBIT ii s EXHIBIT C SHEET 4 OF 4 '1., PARCEL A EATON RANCH REC. N0. 927914 y9w~ PARCEL 2 ~6° o~ CONTAINS 1,677 SFf 0.04 ACt ~?~ ~~ \O Ot~ PROPERTY LINE ~ ~V' NO MONUMINT AGREEMENT O~ O>~ FOUND REC. N0. 200731521 (BASIS OF BEARING N89 43 32 W S UNE NE 1/4 SEC 5 N87~~O~~W FOUND WITNESS CORNER J.W~ TD CENTER OF SECTION 5, $87~7~.3Q~w _ J-1/4' ALUM. CAP LS 28286 ON N0. 6 REBAR 50.00 EAST ~3.86~ OF CALCULATED LOCATION OF CENTER OF SECPON 5 ON UNE W1TN E 1/4 CORNER. PROPOSED SUBDIVISION: THE WEST END P.U.D. LEGEND: • DENOTES A CHANGE IN COURSE ONLY. NOTE: TH{5 EXHIBIT DOES NO7 REPRESENT A MONUMENT SURVEY. IT IS INTENDED ONLY TO DEPICT THE ATTACHED DESCRIPTION 1382.54' COMM~CEXIENT E 1/4 COR SEC 5 FND 3-1/4' ALUM CAP STAMPED ALPINE ING' N00'16'28'E - 2.83' x -;E- SCALE: 1" = 50' \I/ Carroll s~. Lange P Prolessrona~ Engineers Y, land Smveyms 7G5 Saulh Unron 81vr1 Swre r5G I_d YrtVQOO CO~Or3dU B~"'~~ ~ina~ ono oa_nn REv Ui r