HomeMy WebLinkAboutC16-227 WE-cycle Crown Mountain SiteINCROACHIVTENT AGREEMS NT
BETWEEN SACLE COUNTY Al{D lVE-cycle
FOR BII{E SHART STATION ATTI{f, CROWN I}IOI'NTAINPARK
THIS ENCROACHMEI{T ACREEMANT (hereinafter "Encroachment Agrcemenf'or "Agreement")
made a-s of this Alt- day of *Fcz^,c-, 2016 between Eagle County, Colorado ("Counry") and WE-cycle,
a Colorado nonprofit corporation (hercinaftcr "Liccnsee").
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WSEREAS, Licensee is n nonprofit org&nizetion that maintains and operates a scrics of bike-share stalions
within the Rotring Fork Valley as the "first/last milc'o connection to the transit corridor and as a form of pedal
powered mobility for in and around tonn transportation; und
WHUREA$, Licensee desires to placs a WE-cycle bike share station on Eagle County property, ar the
location idcntified in Exhibit A {the "Encroachment Area"), to provide Eagle County residens wir}r access te
the WE-*ycle bike-shore system; and
WHXREAS, County has agreed to grant to Licensee a ternporary, nr:n-exclusive privilege to use the
flncroachment Area for the purposc of installing and rnaintsining a public bike-share sysrern, in accordance
rvith, and subject to the terms of this Agreement.
NOw' TIIBREFORE, in consideration of the foregaing premises and following promises, County and
Licenscc agrcc as follows:
I ' firant of Licensc. County hereby grants and conveys to Licensee a temporary, non-exctusive license
to use lhe Encroachment Area for the purpose of installution and rnsintenance of a WE-cycle bikc-sharc
station far public use {the "License"}.
2- Limitutions snd Conditions. The License shall be subject to existing essements, rights of way and
other conditions, covenants or rsstrictions of'record.'l"he l,icense grunted by this Agrccment is non-cxclusivr:
and County reserves the right to use for itsclf and to graflt for others rights-oFway over, und*r, scross or
through the Encroachment Area herein granted.
3. lnstallation and Maintenance. Thc bike-shsre station cquipment shall bc deemed and remain the
personal propertv of Licensee. Construction, including installation, replacement of or significant
elteratians ta the bike-share station will be fhe sole responsibility of Licensee. No construction shall be
commenced until approved in rvrjting by County. Licensee {rgrees to be responsible tbr all ongoing
necess{rry repair and msintenance associated with the use of the Encroachment Area as a bike-share
stntion and to keep the Hncroachment Area reasonable safe for public use. Licensee agrees to repair any
damage ttrat may be caused to county propeily during construction sr maintenance.
4' Term. 'Ihis Agrerment shall cornmence as of the date of this Agrcement and shall continue until
terminated in accordance with the provisions of this Agreement.
5. Insurance. I-icensee agrees to provide and maintain at Licensee's sole cost and expense, the
following insurance coverage rvith limis of liability nor less than those staled below:
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i. Workers' Compensation insurance as required by law.
ii. Auto coverage with limits of liability not less than $1,000,000 each accident
combined bodily inju.y and property damage liability insurance, including coverage for owned, hired,
and non-owned vehicles.
iii. Commercial General Liability coverage to include premises and operations,
personal/advertising injury, products/completed operations, broad form property damage with limits of
liability not less than $1,000,000 per occuffence and $1,000,000 aggregate limits.
b. Other Requirements.
i. The automobile and commercial general liability coverage shall be endorsed to
include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials,
employees, agents and volunteers as additional insureds. A certificate of insurance consistent with the
foregoing requirements is attached hereto as Exhibit B.
ii. Licensee's certificates of insurance shall include subcontractors, if any as
additional insureds under its policies or Licensee shall furnish to County separate certificates and
endorsements for each subcontractor.
iii. The insurance provisions of this Agreement shall survive expiration or
termination hereof.
iv. The parties hereto understand and agree that the County is relying on, and does
not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights,
immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time
amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected
officials, employees, agents and volunteers.
v. Licensee is not entitled to workers' compensation benefits except as
provided by the Licensee, nor to unemployment insurance benefits unless unemployment compensation
coverage is provided by Licensee or some other entity. The Licensee is obligated to pay all federal and
state income tax on any moneys paid pursuant to this Agreement.
6. Indemnification. Licensee shall, to the fullest extent permitted by law, indemnifi. and hold
harmless County anil any of its offices, agents and employees against any losses, claims, damages or
liabilities for which 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, the
Encroachment Area, or are based upon any performance or nonperformance by Licensee hereunder; and
Licensee shall reimburse County for any and all legal and other expenses incurred by County in
connection with investigating or defending any such loss, claim, damage, liability or action. This
indemnification shall not apply to claims by third parties against the County to the extent that County is
liable to such third party for such claims without regard to the involvement of Licensee. This paragraph
shall survive expiration or termination hereof.
7. Termination. Notwithstanding anything herein to the contrary, County, in its sole discretion,
reserves the right to terminate this Agreement or revoke the License and/or to require Licensee to remove
or relocate the bike-share station at the sole expense of Licensee upon thirty (30) days written notice by
County. In the event that in the County's sole discretion, Licensee ceases to use the Encroachment Area
in accordance with the terms of this Agreement or otherwise fails to comply with any and all of the terms
of this Agreement, this Agreement and License may be terminated upon ten (10) days written notice by
County. Upon notice of termination of this Agreement and/or the License by County, the bike-share
station shall be removed and/or relocated at the sole expense of Licensee, and the Encroachment Area
restored to its original condition, or as close thereto as possible. If the bike-share station is not timely
removed or relocated upon termination or in response to Eagle County's request and the Encroachment
Area is not restored within the allowed time period, County may do so at the County's expense, which
expense shall be promptly reimbursed by Licensee.
8. Enforcement Remedies. County and Licensee 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 County and Licensee commit themselves to perform pursuant to these terms
contained herein.
9. No Vested Right. Notwithstanding any expenditure of money, time, and/or labor by Licensee on
or within the Encroachment Atea, this Agreement shall be in no event construed to create any interest or
any vested right in favor of Licensee to the Encroachment Area other than expressly stated herein.
Licensee acknowledges that the County may in its sole discretion and convenience require the removal or
relocation of the bike-share station, and therefore any money, time and/or labor expended by Licensee is
at Licensee's sole risk. In the event of termination of this Agreement, Licensee shall not entitled to
receive compensation or reimbursement for any costs and expenses incured in any way arising from this
Agreement or relating to the construction, installation, maintenance or removal of the bike-sharing station
in the Encroachment Area, nor monetary damages of any kind.
10. Compliance with the Law. Licensee shall adhere to and comply with all ordinances, laws, rules
and regulations that may pertain or apply to the Encroachment Area and the Licensee's use thereof.
License agrees and warrants that is has procured or will procure any licenses, permits, or like permission
required by law, if any, to conduct or engage in use of the Encroachment Area and that Licensee will
keep the same up to date during the term of this Agreement.
11. Miscellaneous.
a. Jurisdiction, Venue and Applicable Law. Any and all claims, disputes or controversies related to
this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado,
which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and
interpreted under and shall be governed by the laws of the State of Colorado.
b. Assignment. The Agreement and the obligations herein may not be assigned without the express
written consent of the County. Any attempt to assign this Agreement without such consent shall be void.
c. This Agreement shall be binding on the parties hereto and their respective successors and
permitted assigns. Enforcement of this Agreement and all rights and obligations hereunder are reserved
solely for the parties, and not to any third party.
d. No Third Party Beneficiary. Nothing herein expressed or implied is intended or should be
construed to confer or give to any person or entity other than County or Licensee and their respective
successors and assigns, any right, remedy or claim under or by reason hereof of by reason of any
covenant or condition herein contained.
e. 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.
f. 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 Licensee.
g. This Agreement represents the full and complete understanding of Eagle County and Licensee
and supersedes any prior agreements, discussions, negotiations, representations or understandings of
County and Licensee 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.
h. No Joint Venture or Partnership. Nothing contained in this Agreement shall be deemed to create
a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship
between County and Licensee. Licensee shall have no authority to bind County.
// Remainder of Page Intentionally Lert Bhnk //
ATTEST:
sv.1tu4)c't t r-,.tra--a'i
Clerk to the
COUNTY OF EAGLE, STATE
OF COLORADO, by and
through its BOARD OF
COUI\TY COMMISSIONERS
Operations Director, WE-cycle
. this ltt dav
STATE OF
COI.INTY OF
Cdotnoto
Qlt\r.,
)
) SS.
)
The foregoing instrument was acknowledged before me byoL,2016.
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LICENSEE - WE-CYCLE
