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HomeMy WebLinkAboutC09-424 Encroachment & PIA Eagle Vail Road Sidewalk Project ENCROACHMENT EASEMENT AND PUBLIC [MPROVEMENTS AGREEMENT EAGLE VAIL PROPERTY OWNERS ASSOCIA"I'lON EAGLE VAIL ROAD SIDEWALK PROJECT THIS ENCROACHMENTC EASEMENT AND PUBLIC IMPROVEMEN"I'S AGREEMENT ("Agreement") made and entered into this %~'' day of October, 2009, by and between the County of Eagle, State of Colorado, a body corporate and politic, by and through its Board of County Commissioners (hereinafter "County"} and Eagle Vail Property Owners Association, aquasi-municipal corporation organized and existing under the laws of the State of Colorado (hereinafter "`Association"). W[TNESSETH WHEREAS, the County owns the road and other rights-of--way along Eagle Vail Road in the Eagle Vail Subdivision from the intersection of Eagle Vail Road and Highway 6 to the end of Eagle Vail Road (the "Subject Property"); and WHEREAS, the Association wants to construct a pedestrian sidewalk on the Subject Property abutting the existing western edge of asphalt roadway with a 5 foot wide concrete sidewalk and 2 '/~ foot wide curb and gutter (the "Public Improvement"); and WHEREAS, pursuant to Article 1V, Section 4-610 of the Land Use Regulations, public improvements, including pedestrian sidewalks, constructed in the unincorporated areas of Eagle County shall be planned and designed, or under the direct supervision of a Professional Engineer; and WHEREAS, the Association hired a professional engineer to design the sidewalk for Eagle Vail Road; and WHEREAS, the County is willing to allow construction of the Public [tnprovement on the Subject Property pursuant to the terms and conditions of this Agreement; and NOW, THEREFORE, in consideration of the premises and the covenants and agreements herein contained to be kept and performed by the parties hereto, it is hereby understood and agreed as follows: ENCROACHMENT EASEMENT I . L Eagle County hereby grants and conveys to the Association, its successors and assigns, a non-exclusive easement for 1) the purposes of constructing the Public Improvement on 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 the Public Improvement in accordance with this Agreement. 1.2 The Encroachment Easement granted in this Agreement shall be possessed and enjoyed by the Association, its successors and assigns, so long as the Encroachment Easement shall he used by the Association in accordance with the terms and conditions of this Agreement. In the event that the 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 conditions of this Agreement, this Agreement and Encroachment Easement may be terminated upon notice by Eagle County. 1.3 Notwithstanding the foregoing paragraph, County reserves the right, upon thirty (30) days written notice to Association, to terminate this Agreement and the Encroachment Easement and to require Association to remove and/or relocate any portion or all of the Public (mprovement at Association's sole expense upon sixty (60) days notice by County. Such right of County will not be exercised arbitrarily or discriminatorily, but only if in County's discretion, it concludes that the health, welfare or safety of residents of or visitors to Eagle County justify exercise of such right. Upon such termination or relocation, Association agrees to restore the Subject Property covered by the Encroachment Easement to its original condition, including re- grading and re-vegetation, or as close thereto as possible, within ninety (90) days of receipt of such notice. If Association shall tail to timely remove the Public Improvement and restore the Encroachment Easement, County may do so at Association's expense. l.4 The Encroachment Easement granted by this Agreement is non-exclusive and 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 such use or grants do not interfere with Association's easement herein. 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, or authorize placement by others, 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 County may desire subject only to the right of Association to use the same for the purposes herein granted. 1.5 The encroachment of the Public Improvement 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. PUBLIC IMPROVEMENTS 2.1 Adjacent Property Owners. Association shall secure approval from adjacent property owners for minor off-site improvements related to the Public Improvement prior to commencing construction. 2.2 Compliance with Colorado Department of Transportation. Association shall secure a permit to construct within the Colorado Department of Transportation Right-ot=Way prior to commencing construction. 2.3 Scope of Work. Construction, including replacement or significant alterations, and maintenance of the Public Improvement shall be the sole responsibility and expense of the Association. The Association hereby agrees, at its sole cost and expense, to furnish all necessary equipment and material, and to complete the Public Improvement as referenced in the attached Exhibit "A", and as set forth in all documents, construction drawings, designs, maps, specifications, sketches, and other materials submitted by the Association as accepted by the County, and in accordance with all laws of the United States of America, State of Colorado, County of Eagle, and their respective agencies and affected governmental entities. 2.4 Sidewalk. The walk way surface will be concrete with an attached concrete curb & gutter along Eagle Vail Road. Additionally, pedestrian crosswalk markings will be provided for pedestrian safety. 2.5 Maintenance. The Association agrees that it shall be responsible for all future upkeep, snow removal, debris removal, gravel removal, repair, pavement markings and other related maintenance of a Public Improvement located in County and Colorado Department of Transportation right-of-way. Snow, debris and gravel removed from the sidewalk must not be deposited into the roadway. Association agrees to be solely responsible for all ongoing repair maintenance costs associated with the current and any future use of the sidewalk. Whenever possible, Association shall notify and coordinate with Eagle County prior to performing any maintenance to avoid disruption within the County's Road Right-of--Way. 2.6 Duties of Association. For the Public Improvement required herein, including but not limited to the reconstruction and physical improvements of that portion of any road subject to this Agreement, the Association shall retain an engineer whose duties shall include observation of construction for conformance to the approved plans and specitcations, and materials sampling, testing and inspection using the Colorado Department of Transportation 2001 Field Materials Manual as a guide for frequency of sampling and testing. 2.6.1 Testing. Where applicable and by way of example only, the following is a highlighting of the acceptance testing that will be required of the Association: a. Finished Sub-grade -one density test per 250 lineal feet of roadway. b. A~gret;ate base course -one in-place density per 250 lineal feet of roadway, and gradation and Atterberg Limits test per 2,000 tons of aggregate base course. c. Hot Bituminous Pavement -two asphalt content, gradation and in- place density tests per day's production. d. Concrete -Curb and Gutter, Sidewalks and Bike Paths -tests for air content, slump and compressive strength per 50 C.Y. of concrete placed or minimum of one set of tests per day. 2.6.2 Notification/Road Construction. Association or his Engineer shall notify the Eagle County Engineer for the purpose of arranging an on-site inspection no less than twenty-four (24) hours in advance of the following stages of road construction: 1) Finished Aggregate Base Course 2) Asphalt Placement 3) Concrete -curb and gutter, sidewalks and bike paths The County Engineer shall make an on-site visit within twenty-four (24) hours notification or as shortly thereafter as reasonably possible for the purpose of observing proof rolls on item 1) above and for general observation of construction methods being employed at these stages. Said on-site inspection by the Eagle County Engineer shall in no way abrogate the duties of the Association as outlined elsewhere in this Agreement. The Association shalt provide the proof rolling by arranging for a loaded single unit truck carrying 18,000 pounds per rear axle. 2.6.3 Test Reports. All test reports shall be consecutively numbered, with copies furnished directly to the Eagle County Engineer from the laboratory as they are reported to the Association or its engineer. 2.6.4 Record Drawings of Public Improvement. Surveyed Record drawings, sealed, signed and dated by a Registered Professional Engineer showing the as- constructed horizontal and vertical locations of Public hnprovements shall be submitted to the Eagle County Engineer prior to commencement of the two year warranty period and the final release of collateral by the County. 2.7 Date of Completion. The Public Improvement shall be completed prior to January i, 2010. 2.8 Approval of Work. 2.8.1 Copies of all test results corresponding to work which is being inspected and any other information which may be necessary to establish the satisfactory completion of the work for which inspection is requested must be submitted prior to said inspection. All such information shall be accompanied by a letter from the Association's engineer verifying the satisfactory completion of the work performed to date. 2.8.2 Notwithstanding Section 1.4.3 above, promptly after receiving a request for inspection and the required documentation, the County Engineer shall review the information presented and, if necessary, make a public inspection of the work completed. 2.8.3 All said work shall be done to the reasonable satisfaction of the County Engineer and/or the County Department of Community Development, and shall not be deemed complete until approved as complete by the County. 2.9 Estimated Costs of Public Improvement. The estimated cost of the Public Improvement is the sum of 553,825 as summarized in Exhibit "B". To secure and guarantee performance of its obligations as set forth in this Agreement, including the completion of the required Public 4 Improvement, the Association hereby agrees to provide security and collateral in the form of the Corporate Bond, attached hereto as Exhibit "C." 3. COLLATERAL AND ENFORCEMENT. 3.1 Collateral. Security and Collateral required in Section 1.8 herein, as security for the performance by Association of its obligations under this Agreement, shall be secured by a Corporate Bond with the County as the only authorized agent. The Association shall provide the County with an executed corporate bond prior to the start of construction of the Public Improvement. 3.2 Events of Default. If Association has not completed the work required by this Agreement within the Date of Completion set forth herein, the County may, after ten (10) working days written Notice to Association, complete said work and bill the Association for the costs and expenses, including but not limited to legal fees to complete such work. 3.3 Warranty. As set forth in more detail in Section 5.3, below, Association shall be responsible for the condition of the Public Improvement for a period of two (2) years after completion; this shall also be guaranteed by the Corporate Bond. 3.4 The Association's obligations hereunder shall survive termination of the Agreement. 3.5 County and Association agree that this Agreement may be enforced for speciftc 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 County and the Association commit themselves to perform pursuant to these teens contained herein. [n 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. 4. INSURANCE and INDEMNIFICATION 4.1 Certiticates of Insurance. The Association shall secure from any contractor or subcontractor engaged in the work necessary to comply with this Agreement a Certificate of Insurance providing for liability protection in the minimum amount of $150,000 per individual and $600,000 per occurrence, naming the County as an additionally named insured. The Association, if it serves as the contractor for the Public Improvement, shall provide insurance in the same form and amounts as required of the general contractor. Said limits shall be adjusted to comply with any changed limits in the Colorado Governmental Immunity Act, Title 24, Article 10, Colorado Revised Statutes. 4.2 County [ncurs No Liability. The County shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage happening or occurring to the Public Improvement specified in this Agreement prior to the completion of the same; nor shall the County, nor any officer or employee thereof, be liable for any persons or property injured or damaged by reasons of the nature of said work on the Public Improvement, but all of said liabilities shall be and are hereby assumed by the Association. The Association hereby agrees to indemnify and hold harmless the County and any of its officers, agents and employees against any losses, claims, damages or liabilities for which the County or any of its officers, agents, or employees may become subject to, insofar as any such losses, claims, damages or liabilities (or actions in respect thereot) arise out of, directly or indirectly, this Agreement and the Encroachment Easement, or arc based upon any performance or nonperformance by Association hereunder; and the Association shall reimburse the County for any and all legal and other expenses incurred by the County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnity provision shall be in addition to any other liability which the Association may have. 5. GENERAL PROVISIONS The following shall apply to the Public Improvement, including off-site improvements, set forth in this Agreement: 5.1 Compliance with Land Use Regulations. The Association shall be required to obtain all necessary permits and comply with the provisions of the Land Use Regulations, including but not limited to the Regulations for Construction within the Public Ways of Eagle County (Chapter V), as the same are in effect at the time of commencement of construction of the Public Improvement referred to herein. 5.2 Public Improvement Agreement Controls. [n the event of any inconsistency or incongruity between the provisions of this Agreement and the Land Use Regulations, the provisions of this Agreement shall in all respects govern and control. 5.3 Warranties and Guarantees. There shall be a two-year correction period, or such longer period as may be prescribed by law, from the time of completion of the Public Improvement during which time the Association shall promptly correct or remove and replace, in accordance with the County s written instructions, defective work or materials and consequences thereof. Repair or replacement made under the two-year correction period shall bear an additional onc- year correction period from the acceptance of the repair or the replacement by the Eagle County Engineer. The work shall be inspected, at the request of the Association no less than sixty (60) days prior to expiration of the one-year additional correction period, and any deticiencies shall be noted to the Association. 5.4 Amendment and Modification. The parties hereto mutually agree that this Agreement may be amended or modified from time to time, provided that such amendment or modification be in writing and signed by all parties hereto. 5.5 Assignability. The Association shall not assign, transfer, convey, pledge or otherwise dispose of this Agreement without prior written consent of the County, which consent shall not be unreasonably withheld. 5.6 Sole Responsibility of Association Prior to County Acceptance. It is further agreed and understood that at all times prior to the completion of the Public Improvement set forth herein by the County, each of said improvements not accepted as complete shall be under the sole responsibility and charge of the Association. When it is necessary to allow the general public to utilize the roadways under construction by the Association, traffic control and warning devices shall be placed upon such roadways by the Association in accordance with the Manual on 6 Uniform Traffic Control Devices for Streets and Highways as prepared by the U.S. Department of Transportation, Federal Highway Administration. 5.7 No Rights to Third Parties. This Agreement does not and shall not be deemed to confer upon or grant to any third party any right to claim damages or to bring any lawsuit, action or other proceedings against either the County or its ofticers, employees or agents because of any breach hereof or because of any terms, covenants, agreements or conditions contained herein. 5.8 Notice. Notice required pursuant to the terms of this Agreement shall be deemed given on the day that the same is placed in the United States Mails, postage prepaid, certified or registered mail, return receipt requested. 5.9 Enforcement and Attorney Fees. The County may enforce the provisions of this Agreement in the same manner and with the same remedies applicable to the enforcement of land use regulations pursuant to the Eagle County Land Use Regulations, as they maybe amended from time to time, or as otherwise provided by law. Alternatively, the terms of this Agreement may be enforceable by the Board or its designee by any appropriate equitable or legal action, including but not limited to specific performance, mandamus, abatement, or injunction. The remedies explicitly provided herein are cumulative, and not exclusive, of all other remedies provided by law. The prevailing party in any action brought pertaining to this Agreement shall be entitled to an award of costs and reasunable attorney's tees. 6. MISCELLANEOUS. 6.1 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 the State of Colorado District Court in and for Eagle County, Colorado. 6.2 This Agreement, and the rights and obligations created hereby, shall be binding upon and inure to the benetit of 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 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 I~erein contained. 6.3 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 unenforceability 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. 6.4 This Agreement may be amended, modified, changed, or terminated in whole or in part only by written agreement duly authorized and executed by both County and Association. This Agreement represents the full and complete understanding of County and Association and supersedes any prior agreements, discussions, negotiations, representations or understandings of County and Association with respect to the subject matter contained herein. 7 6.5 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. 6.6 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. // REMAINDER OF PAGE lNTENTlONALLY LEFT BLANK // 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement this - ~} day of "~ ~~-~ c: 1, 2009. ATTEST: Clerk to the Board of County Commissioners COUNTY OF EAGLE, STATE OF COLORADO, By and Through its BOARD OF COUNTY COMMISS[ONERS ~~~ ~ a. ~z ~' e`~Oapp° Sara J. Fisher, Chairman Address for giving notice: P.O. Box 850 Eagle, CO 81631 (970) 328-8629 (Facsimile) ASSOCIATION: EAGLE VAIL PROPERLY OWNERS ASSOCIATION ~- ~ /a-, By: j.dGiL~1~~,~~t_~---- Title: ~yL~liy(/A%/~/ /~/~'N~-~Gc~_'- Address for giving notice: ~J~~~ ~ /L ~=z (970) 3~6 ~%/~ (Facsimile) STATE OF COLORADO County of Eagle SS The regoing was acknowledged before me this ~~ day of ~~~ 2009, by 1 'c~la.QL( l~~CvfCl'IeOY~ as~'r~ts-uc+~Nr~v ltituwayu'of ~a a le - U~% ~ , W [TNESS my hand and official seal. My commission expires ~ ~ , ~ ~ ~'o~ ~ ~ ~ O ~c~\EFEgS,'w% Q~ :~ ~ 9 -~. Notary Public ~ ~; Nb~ld 3dt1~Sa2i`dH aNb~ JNIa~IJ " ~' $ s o oavao~'~ron-aiava ~' -" t, o nvnwaH ~sn ara avow ~vn-~wa ~ ` ° _ ~ o ~ ~+~rrnnaais arrow ~ron-a~ova ~ ~ ~ ~ < ~' ~ .e ~ ~.e ~, b: \\ .~~ mom. ~ ~_ ~ ~~~ ~'qF'q ~ ~ ~ - - - y {bM~i 1 8€ ?~ f \ ~$ ^qg~d H S~ m ~q~~ a~ ~ ~~ ~ I U~ ~ \ ~ ~ ~~, z 70 ~' ~~ m ~ 0 o ~"°x 0 ~ tt ~ ~'~ ~ ~ ~S ~ a ss ~o r x~. a~ sw w .. 9~, ~~~~gm~-gam '' e~g~ ' x 'Ew ~U d> 3W bRR Ta~ ~y,~ a i ~~°i z ~uo ~ z~ g'~$Y ~ ~~ ~/ i ~dg~Ab ~C~ F ~il~ ~ w w~~Wa~°a` °~ ~W 36y~ ,. i ~~~r ~ ~~5~" 4 Y b'~ iW . 3 ~0. O f ~~/ ~~ia s ! N g ,i i N Hg / (~ H% ! / d ~ ~ $~ c ~ yyd}~ ~ ~ ~. ash ~ggg$. ~ V~~ a ,• I/ ~mC ~~ ~ / Vii ~ ~Da S %~~' ~~~ i ~e E ~ e / 4ff~~ °$~ gam, ~$~ ~/ o~~ g~~~3 0~ ¢~ ~ ~~~~ ~~~ j ~o ~ W . ~ ~ ~~~ ~ ~ ' e~ ~` ~~ue ~~e 1 O `~ rye. ~ I ~ d Z aY a_ ~i x' = o ~ ~e~ ~ ~ ~' 6~8 n ~ ~ . ~ if ;• ffi"3a ~~~~ ~ ~ ~~ - ! '_~~~ ~ ~ oay~~nog a3 3o ~~ ~1 ~ ~ A 3 ai~ ~ ~! ~ ~~~ ~~ <~~ ~ ~ ~ ~ ~s ~~ ova v ~~e i U k ~ e~ ;' N ~aa €~ !~ ~~ ~~ E p . ~~ ~ 1° ~ zII U~+ EXHIBIT B EV Road Bid Tabulation B&B 1 Mobilization 5,679 2 Traffic control 5,729 3 Erosion 922 4 Site clear 1,572 5 Site grading 3,701 6 Import Structural fill 1,581 7 Asphalt Saw 965 8 Asphalt Removal 2,400 9 Asphalt Removal 4,269 10 Compacted Base Course 4,585 11 Curb & Gutter 7,935 12 Driveway Entrance 3,324 13 Sidewalk 6,300 14 Dome ADA Plate 1,612 15 Crosswalk Marking 1,098 16 Landscape Modifications 1,478 17 Signage 675 TOTAL 53,825 comments +$200 per load export EXHIBIT C CORPORATE BOND KNOW ALL MEN BY THESE PRESENTS, that EAGLE VAIL PROPERTY OWNERS ASSOCATION; aquasi-municipal corporation organized and existing under the laws of the State of Colorado, with principal offices at 99 Eagle Road, Eagle Vail, Colorado, as Principal, is held and firmly bound unto THE BOARD OF THE COUNTY COMMISSIONERS, COUNTY OF EAGLE, a Political Subdivision of the State of Colorado, as Obligee, in a penal amount sufficient to make good the Principal's obligations hereunder, for which payment, well and truly to be made and performed, the Principal by these presents hereby binds itself, it successors and assigns. The condition of this obligation is such that if the above-named Principal (( ) faithfully performs all conditions imposed by that certain Public Improvements Agreement ("PIA") dated October _, ?009 between County of Eagle, Colorado and Principal, relative to the EAGLE VAIL PROPERTY OWNERS ASSOCIATION SIDEWALKS and (2) indemnifies and saves harmless the County of Eagle against and from any and all damages or claims for damages, loss, costs, charges or expense on account of injury to persons or property resulting from or occasioned by the negligence of said Principal in the performance required herein, and (3) satisfies the two (2) year warranty period imposed by the PIA then this obligation shall be void, otherwise to remain in full force and effect up to and including satisfactory completion of the Public Improvements and expiration of the two (2) year warranty period as set forth in the PIA. Repair or replacement made under the two (2) year warranty period shall bear an additional one (1) year warranty period from the acceptance of the repair or the replacement by the Eagle County Engineer [t is further agreed and understood that at all times prior to the completion and acceptance of the Principal's obligations set forth in the PIA by the County, each of said improvements not accepted as complete shall be under the sole responsibility and charge of the Principal. When it is necessary to allow the general public to utilize the roadways under construction by the Principal, traffic control and warning devices shall be placed upon such roadways by the Principal in accordance with the Manual on Uniform Traffic Control Devices for Streets and Highways as prepared by the U.S. Department of Transportation, Federal Highway Administration. In the event of any inconsistency or incongruity between the provisions of this Corporate Bond and the P[A, the provisions of the PIA shall in all respects govern and control. Executed this /`~ day of October, 2009 ,'~~ Y• Name: ~ur~> 1~ l~A-~ ~~..f-%G~i,~/ Title: STATE OF COLORADO ) COUNTY OF EAGLE ) tG~ The foregoing instrument was acknowledged before me on this Cy day of October, 2009, by ~iclta~c~ {'~c~ivrcrtec~l~ as a uH' (.([G~ta u'' of the EAGLE VAIL PROPERTY OWNERS ASSOCAT[ON. My Commission expires: 1t~Q,~~ ~ ~~ o1r~l v"~, , ~~~~p~n~fimura,,, Notary Public ~~~a`'~pR~ $~E~~,~''cyy ~. .s __ :~®T~R~:. N'`~' ~ iri ~ 1< ~ ~;.4 ~'9j; .