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HomeMy WebLinkAboutC10-140 Eagle River Watershed Council Encroachment and License AgreementENCROACHMENT EASEMENT and license AGREEMENT THIS AGREEMENT (hereinafter "Agreement") is made and entered into this 9`" day of March, 2010, by and between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners (hereinafter "Eagle County") and the Eagle River Watershed Council, Inc., a Colorado non-profit organization (hereinafter "the Council"). WITNESSETH: WHEREAS, the Council is licensed by Eagle County in the "Eagle River Adjacent Owners' Authorization" to come upon and use the real property described as Vail Christian High School PUD, Tract F, located in Eagle County (hereinafter "Subject Property"), Parcel ID Number 1941- 364-02-006, for work performed in conjunction with the Edwards Eagle River Restoration Project. WHEREAS, Eagle County is the owner of Subject Property. WHEREAS, the Council is proposing to design, construct and install a entrance feature for the Edwards Eagle River Restoration Project as per the attached plans, "Proposed Planting Area, April 2010." The Council seeks permission to install plant material in a 3,000 square foot area from a point at the intersection of the guardrail on Hillcrest Drive and the Lake Creek Village Blvd. right of way boundary, the area then extends eastward (ie. parallel to the Lake Creek Village Blvd. right of way) for approximately 170' and southward along the Hillcrest Drive guardrail for approximately 42'. An entrance marker, (see Exhibit B) not exceeding dimensions of four feet by six feet would be situated at the eastern end of this feature. WHEREAS, Eagle County is willing to allow installation and construction of described improvements on the Subject Property 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 the Council agree as follows: ENCROACHMENT EASEMENT and license GRANT: For the consideration set forth herein, the sufficiency of which is hereby acknowledged, Eagle County hereby grants and conveys to the Council, its successors and assigns, anon-exclusive easement for the purposes of constructing and maintaining an Entrance feature (hereinafter "Improvements") within the property of Eagle County at a location shown on Exhibit "A" attached hereto (hereinafter referred to as "Proposed Planting Area, April 2010"). The Area for Improvements granted in this Agreement shall be possessed and enjoyed by Council, its successors and assigns, so long as the Area for Improvements shall be used by the Council in accordance with the terms and conditions of this Agreement. In the event that the Council ceases to use the Area for Improvements in accordance with the terms and conditions of J~u-~~~ this Agreement or otherwise fails to comply with any and all of the terms and conditions of this Agreement, this Agreement and maybe 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 the Council to remove and/or relocate the Improvements at Council's sole expense upon notice by Eagle County. Upon termination or relocation, Council agrees to restore the easement to its original condition, or as close thereto as possible. If the Council shall fail to timely remove the Improvements and restore the Encroachment Easement upon notice, Eagle County may do so at Council'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 Council's easement herein. Eagle County reserves the right to use and enjoy the premises to the fullest possible extent without unreasonable interference from the Council's Improvements and 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 the Council to use the same for the purposes herein granted. The encroachment of the Improvements into Eagle County's rights-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 ENCROACHMENT EASEMENT: Construction, including replacement or significant alterations, and maintenance of the Improvements will be the sole responsibility of the Council. No construction shall be commenced until this Agreement is approved in writing by Eagle County. Council agrees to be responsible for all ongoing necessary repair and maintenance associated with the current and any future use of the Encroachment Easement. INDEMNIFICATION: The Council 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 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 Council hereunder; and the Council 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 be specifically enforceable by Eagle County against the Council, its successors and assigns. The Council's obligations for restoration, repair, and indemnification shall survive termination of this Agreement and the Encroachment Easement. Eagle County and Council 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 Council 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 to 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 Council 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 Council 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 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. 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 Council. This Agreement represents the full and complete understanding of Eagle County and Council and supersedes any prior agreements, discussions, negotiations, representations or understandings of Eagle County and Council with respect to the subject matter contained herein. 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. 3 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 COUNCIL have executed this Encroachment Easement Agreement this day of Q , 2010. ATTEST: .,, V'~ 4 . _~ '; BY: _ ~BY Clerk to the Board of ounty ~~~~~ Commissioners COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS Sara Fisher, Chairman EAGLE RIVER WATERSHED COUNCIL BY: u~i~2 -uI ~~~ ~'Ci'~7 ~~t~ Melissa Macdonald, Executive Director Eagle River Watershed Council STATE OF l~J~~~~" ~~~ ~~ lJ ) ~ . ) SS. COUNTY OF 4 k;t l'~! ~ ) The foregoing instrument was acknowledged before me b~r~~,~a~ ,~ ~11~~11~~~his~day of ~kj;,~y ~~ , 2010. 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Hillcrest Bridge 3 w ~ s ° ~ ' _ C O N '~ ~ '~O ~ ~ ~~., ~ d N fl. C 4l Y ~ _ ~ ~', __ i O O N :~ N N E ` O L E w, ` ° 3 I- m c w c c ~ v U ~ N W LL =O ~~ Z H Z a 0 W 0 a O a Z O H W W w J Q W w J~~ 0 ~~ ,~ v Fzj .C a~ ~" ~,._, v ao ~ yt~ W I~ U S v •. W o .~ u ~EvE 'n o v G ~~ G O ~~ ~~ W~ ~I " I ~Wilyt' , ~~S3fi; ~ I~~~ii4 u i ,~ Hillcrest NE Corner Special Planting Area: Materials Cost Estimate 3/25/2010 Shrubs a nd Sub-S hrubs _ Qty Size Common Name Latin Name Item Cost Total 7 2-1/4" Silver sage Artemisia cana $0.90 $6.30 2 32/Flat Fringed sage Artemisia frigida $37.00 $74.00 5 1-gallon Wax currant Ribes cereum $8.00 $40.00 4 32/Flat Oregon-grape Mahonia repens $48.00 $192.00 Forbs 2 _ 32/Flat Pussytoes Antennaria rosea $37.00 $74.00 2 32/Flat Sulpher buckwheat Eriogonum umbellatum $37.00 $74.00 1 32/Flat Rocky Mtn. Penstemon Penstemon strictus $34.00 $34.00 Grasses 3 15/Flat Indian ricegrass Achnatherum hymenoides $37.00 $111.00 Seed 3000 - 82 SF - LB Upland showy seed mix _ Biosol Mix .07 acre -- 1 bag $245.00 $33.55 15 LB Humate 1 bag $18.50 LB Mychorrizae 1 bag $13.10 275 LB Straw Mulch (300 Ib) 8 bales @ $6.00 each $48.00 Call Larry, 970-904-5022 $963.45 __ There will ~e upland seed max aril mychorrizae left over to be used at boat launch and tr3ilhead i