HomeMy WebLinkAboutbocc.con.335.2015 CONTRACT#,M=2e7
ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO, APPROVING AN UNDERGROUND RIGHT-OF-WAY EASEMENT
AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS ("BOCC")OF
PITKIN COUNTY ("COUNTY")AND QWEST CORPORATION D/B/A/CENTURY LINK
QC ("GRANTEE")/
ORDINANCE NO.0 3 f , 2015
Recitals:
1. The County is the record owner of that real property("Property") situated in Pitkin
County, Colorado known as the Second Amended Plat of Lot 1, Pitkin County Center
Subdivision.
2. The County merged Parcel No. 273707347851 into Lot 1, First Amended Pitkin County
Center Subdivision.
3. In connection with the lot merger, the County desires by this Agreement to (a)establish
and to grant to Grantee, a perpetual, non-exclusive easement as described on Exhibit A
attached to the Agreement, an underground fiber optic and copper communication
facilities to be located along with other utility lines as depicted on Exhibit B attached to
the agreement, for the right of ingress and egress across the Property for the purpose of
allowing Grantee to construct, reconstruct repair,change, enlarge, rephrase,operate, and
maintain the Facilities with the underground vaults, fixtures and equipment used or
useable in connection therewith, together with associated equipment required above
ground; and(b)to establish certain restrictions with respect to the easement.
4. Section 2.8 of the Home Rule Charter, allows the BOCC the authority to grant easements
in public lands.
5. The BOCC believes it is in the best interest of the citizens of Pitkin County, to enter into
this underground right-of-way easement.
NOW THEREFORE BE IT ORDAINED that the Board of County Commissioners authorizes
the Chair to sign an easement agreement between the Board of County Commissioners and
Qwest Corporation d/b/a/Century Link QC, in substantially the same form subject to approval
by the County Attorney.
RECEPTION#: 626211, 01/08/2016 at
02:14:40 PM,
1 OF 12, R $0.00 Doc Code ORDINANCE
Janice K. Vos Caudill, Pitkin County, CO
ab/
INTRODUCED AND FIRST READ ON THE /j 1 DAY OF D�4 ✓ 2015
A S T FOR SECOND READING AND PUBLIC HEARING ON THE g- DAY OF
eA h 2015.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THIJ
ORD A CE PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE /' DAY
OF P r , 2015.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED
ON THE OkICtIALPITKIN COUNTY WEBSITE(www.pitkincounty.com)ON THE /'
DAY OF6rXY 2015.
Af5(ND AFTER FINAL READING AND PUBLIC HEARING ON THE W DAY OF
✓ 2015.
PUBLISHED BY TITLE AND StIORT SUMM RY, AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON THE fit- DAY OF ��01 -w 2015.
POSTED BY TITLE AND SHORT SUMMARY ON THE OF,F C PITKIN COUNTY
WEBSITE (www.pitkincounty.com) ON THE* (P1 DAY OFb-e,Y , 2015.
ATT:. T: BOARD OF COUNTY COMMISSIONERS
By /_ .// /�. ,� By: C ;- z.4
Jeane l• Jones / Steven F. Child, Chair
Depu , County Clerk'
Date:_tfp_ I
APPROVED AS TO FORM: MANAGER APPROVAL
John Ely •rney Lion Pea ock, ounty Manager
Zey hi4 71
6 "(-V/5.
QWEST CORPORATION, a Colorado corporation doing business as CenturyLink QC •
UNDERGROUND RIGHT-OF-WAY EASEMENT
Ck
of�tThis Underground Right-of-Way Easement Agreement is entered into this`f1-15 day
Y , 2015,by and between the BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO, a body corporate and politic, ("County") and
QWEST CORPORATION, a Colorado corporation doing business as CenturyLink QC,whose
mailing address is 100 CenturyLink Drive, Monroe, Louisiana 71203, Attention: Construction
Services ("Grantee").
RECITALS
1. The County is the record owner of that real property("Property") situated in Pitkin
County, Colorado known as:
Updated legal Second Amended Plat of Lot 1 Pitkin County Center Subdivision.
Situated in Section 7, T.10 S., R.84 W. of the 6th P.M. Pitkin County, Colorado
2. The County merged Parcel No. 273707347851 into Lot 1, First Amended Pitkin
County Center Subdivision.
3. In connection with the lot merger,the County desires by this Agreement to (a)
establish and to grant to Grantee, a perpetual, non-exclusive easement as described on Exhibit
"A" attached hereto, an underground fiber optic and copper communication facilities(the
"Facilities"to be located along with other utility lines as depicted on Exhibit"B" attached
hereto, for the right of ingress and egress across the Property for the purpose of allowing Grantee
to construct,reconstruct, repair, change, enlarge, re-phase, operate, and maintain the Facilities
with the underground vaults, fixtures and equipment used or useable in connection therewith,
together with associated equipment required above ground; and (b)to establish certain
restrictions with respect to the easement.
4. Grantee desires by this Agreement to (a) accept the easement subject to the
restrictions set forth herein; and (b) to assume certain responsibilities in connection therewith.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, the County and Grantee agree as follows:
1. Grant and Acceptance of Easement. The County hereby grants to Grantee, its
successors and assigns, and Grantee hereby accepts, a perpetual, non-exclusive easement and
the right of ingress and egress across the Property for the sole purpose of constructing,
reconstructing,repairing, changing, enlarging, re-phasing, operating, and maintaining the
Facility with the underground vaults, fixtures and equipment used or useable in connection
therewith, together with associated equipment required above ground (collectively the
1
"Activities"), within a multi-purpose, general purpose Utility easement, as described on Exhibit
"A"attached hereto and made part hereof by reference(the"Easement").
The Easement will be a common use easement in which other utilities will reside and
have the same or similar conditions and restrictions of use within the easement for the particular
utility. The utilities associated with this easement, and the approximate location of such utility
lines within the easement,are identified on Exhibit"B" attached hereto.
The rights herein granted specifically allow Grantee to service and repair existing utilities
and install additional underground and/or pad-mounted facilities within the Easement area
described herein.
Prior to commencement of construction, Grantee shall obtain the County's approval of
Grantee's construction plans for the Easement. Grantee shall not modify the utilities and
improvements within the Easement without first obtaining the County's approval of Grantee's
proposed construction plans for any modifications. Notwithstanding the foregoing, Grantee shall
be entitled to enter the Easement to make emergency repairs to the Facility without prior notice
to the County.
2. Vacation of Easement. Grantee agrees to vacate the portion of its existing easement
that is replaced by this Easement.
3.No Additional Easement.Nothing contained herein shall be construed to grant any
other easement across or under the Property, or across or under any other real property owned by
the County.
4. Subordination. The Property is in primary used as County Offices and the County's use
of the Property including the Easement area,has priority and preference over any use granted to
Grantee in this Agreement. The County, as the underlying fee estate owner of the Property, shall
have the right to continue to have use of and to occupy the Property and to make such use and
improvements on or to the Property, including the Easement area, consistent with its primary use
or any use that may be contemplated or conducted by the County in the future. Grantee's use of
the Easement shall be subordinate to the County's current and future use of the
Property provided that the County's current and future use do not unreasonably interfere with the
exercise by Grantee of the rights set forth in this Easement.
5. Relocation. Should the County improve the Property in furtherance of its primary use
as County Offices in such a manner as to require the relocation of Grantee's utility line or
improvements from the Easement area,the County shall provide Grantee with at least ninety(90)
days' prior written notice of such plans and shall be solely responsible for the cost to relocate the
utility line and improvements. The County shall provide Grantee with a comparable location on
the Property for the relocated Facility and grant Grantee and easement for such location
substantially in the form of this Easement. Should Grantee relocate the utility line or
improvements in furtherance of any Grantee objective or purpose,the Grantee shall be solely
responsible for the cost to relocate Grantee's utility line or improvements. The County shall
allow Grantee to perform a standard cutover procedure,if required by said relocation,which will
2
ensure that the relocated Facility is operational prior to discontinuing service from the original
service location.
6. Use of Easement Area and No Interference by Grantee. Grantee, its employees,
contractors, agents and third parties engaged by Grantee and its licensees, assigns and successors
shall have all reasonable right of access to the Easement area. The County shall use reasonable
efforts so that underground vaults and/or pad-mounted facilities installed in the Easement area
are accessible by Grantee's boom trucks and other necessary equipment and personnel without
the necessity for Grantee to remove or alter any improvements, landscaping, or other
obstructions. Without Grantee's prior approval, the County shall not alter the ground surface
grade within ten(10) feet of Grantee's vaults or facilities, nor along the natural gas line route
within the Easement area. Grantee shall install above ground vaults and facilities so that the top
of the pad is two (2) inches above the ground surface grade. Grantee shall install underground
vaults so that the top of the structure is flush or up to one(1) inch below the ground surface
grade. Any manhole openings of the underground vaults shall be uncovered (excluding snow)
and maintained by Grantee to be accessible at all times. Improvements, landscaping or any other
objects placed in the vicinity of said pad-mounted facilities shall be located so as not to hinder
complete opening of the equipment doors. The ground surface within ten (10) feet of said pad-
mounted facility shall be flat, level and free of improvements, landscaping, and other
obstructions. Improvements, landscaping and other objects will be kept a minimum of four(4)
feet from non-opening sides and backs of said pad mounted facilities.
Except in the case of emergency(where oral notice shall suffice), Grantee agrees that it must
inform the County by written notice of any desire to enter the Easement area to perform any of
the Activities granted herein and must be in receipt of written approval to enter the easement
from the County. Prior to entering the Easement, Grantee must be in receipt of all necessary
permits for the proposed activity. Grantee's use of the Easement area shall not interfere with or
interrupt any use of the Property by the County, its employees or agents.
7. Damage to other Grantees within Easement. During the performance of any
Activities granted herein, Grantee shall protect the interests of other utility company installations
within the Easement. If damage should occur to the property,utilities, infrastructure, or facilities
of any of the common easement users as a result of the Grantee's actions, the Grantee shall be
responsible for repairing such damage per the requirements of the specific entity at Grantee's
sole expense.
8. Restoration. Following Grantee's performance of any Activities granted herein,
Grantee shall promptly restore any disturbed or damaged areas of the Property to the extent
practicable to the same condition that existed immediately prior to such disturbance or damage.
Any and all costs and expenses incurred as a result of performance of any Activities granted
herein shall be the sole responsibility of Grantee.
9. Indemnification and Insurance. Grantee agrees to indemnify and hold the
County, its successors and assigns in the record ownership of the underlying Property, harmless
from any and all claims and losses of any nature whatsoever to the extent caused by any
3
negligent act or omission of Grantee,its employees, agents and contractors in connection with
the undertaking of the Activities within the Easement as contemplated herein and the subsequent
existence,use and operation of improvements resulting from such Activities, excepting such
claims and losses which may arise directly from the willful and negligent acts of the County,its
contractors, agents or employees. This indemnification shall include actual attorneys' fees and
costs incurred in the event that any party brings an action against the County in connection with
the undertaking of the Activities contemplated by Grantee herein or the subsequent existence,
use or operation of the improvements resulting therefrom. Grantee further agrees to include the
County(and its successors and assigns in ownership of the underlying Property traversed by the
Easement, or any part thereof) as additional insured on its comprehensive general liability
insurance policy,which insurance shall be maintained by Grantee to provide protection against
liability from certain claims arising out of the use of the Easement area. Such insurance shall be
carried in amounts not less than the liability limits specified in C.R.S. § 24-10-114(1), as it may
be amended from time to time. Should any of the above-described policies be cancelled before
the expiration date thereof,notice will be delivered in accordance with policy provisions.
Grantee shall,upon written request from the County or any successor or assign,provide a
Certificate or evidence of Insurance as verification of compliance with these requirements.
10. Choice of Law. This Agreement and every related document shall be governed and
construed in accordance with the laws of the State of Colorado.
11. Binding Effect. The Easement granted herein shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns forever,including any
record owners of the underlying Property, or any part thereof. The benefits and burdens hereof
shall also run with the title to the underlying Property and all parts thereof traversed by the
Easement.
12. Attorneys' Fees. In the event the interpretation or enforcement of this Agreement
should ever become the subject of litigation, arbitration or mediation between Grantee(or its
successors and assigns)and the County, the substantially prevailing party shall be awarded its
reasonable costs and attorneys' fees and costs incurred in connection therewith.
13. No Assignment Without Consent. Grantee shall not,without first obtaining the prior
written consent of the County, sell, assign, transfer, encumber,hypothecate or sublease any or all
of the rights,interest or obligations under this Agreement. Such consent shall not be reasonably
withheld by the County. Notwithstanding the foregoing, Grantee may assign all,but not less
than all, of its rights,interest or obligations under this Agreement to any entity that controls,is
controlled by or under common control with,Grantee, and any entity that purchases all or
substantially all of Grantee's assets located in the State of Colorado.
14. Notices. All notices or other communication required or permitted under this
Agreement shall be in writing, shall be personally delivered(which includes delivery by a
nationally recognized courier service)or sent by certified mail,postage prepaid and return
• receipt requested, and such notices shall be deemed given with received.
Notices shall be directed to the following addresses:
4
To Pitkin County:
Pitkin County Facilities
Attn: Jodi Smith
485 Rio Grande Place
Unit 101
Aspen, Colorado 81611
Telephone No.(970) 920-5396
Fax No. (970) 920-5285
With a copy to:
Pitkin County Attorney
530 East Main Street, Suite 302
Aspen, Colorado 81611
Telephone No. (970) 920-5190
Fax No. (970) 920-5198
To Grantee:
100 CenturyLink Drive
Monroe, Louisiana 71203
Attention: Construction Services
With a copy to
CenturyLink Law Department
1 Solutions Parkway
Mailstop: MO012900400-497
Town and Country, MO 63017-5827
Attn: Vice-President—Law Department
15. Performance. The Parties agree to perform any and all acts, without limitation, as may
be reasonably necessary to fully effectuate the intent and purposes of this Agreement. Whenever
any action is required or permitted to be taken by the parties under the terms of this Agreement,
such action may be taken and performed by any authorized officer, director, agent or other
representative of the parties.
16. No Third Party Beneficiaries. It is the intent of the parties hereto that no third party
beneficiary interest is created in this Agreement. The parties hereto are not presently aware of
any actions by them or any of their authorize representatives which would form the basis for
interpretation construing a different intent and expressly disclaim any such acts or actions.
17. No Waiver of Governmental Immunity. Grantee and the County, its directors,
officials, officers, agents and employees are relying upon and do not waive or abrogate, or intend
to waive or abrogate by any provision of this Agreement the monetary limitations or any other
rights immunities or protections afforded by the Colorado Governmental Immunity Act, C.R.S. §
24-10-101, et seq., as it maybe amended from time to time.
5
18. Breach. In the event of a breach of any provision of this Easement written notice of
the breach,which shall include a reasonably specific description of what constitutes the breach
and what corrective action or cure is required by the party giving the notice, shall be given by the
non-breaching party. If within thirty(30) days after receipt of such written notice,the breaching
party has not cured the breach, of if cure cannot be reasonably accomplished within thirty(30)
days,has not commenced what curative measures are possible and is not prosecuting the same to
timely completion,the non-breaching party may,in addition to such contractual remedies as may
be available, ask a court of competent jurisdiction for appropriate injunctive relief.
If the breaching party is Grantee, and the breach detrimentally affects County operations in the
sole but reasonable opinion of the County,the County may demand immediate remediation or
seek immediate judicial remedies.
19. Entire Agreement. This Agreement constitutes the entire and complete agreement of
the parties in regard to the subject matter herein.No promise or undertaking has been made by
any party, and no understanding exists with respect to the transaction herein contemplated except
as expressly set forth herein.All prior and contemporaneous negotiations and understandings
between the parties are embodied and merged into this Agreement.
20. Severability. If any term or provision of this Agreement shall be held to be invalid or
unenforceable,the remaining terms and provisions of this Agreement shall continue to exist and
shall be valid and enforceable to the fullest extent permitted by law.
21. Amendment. This Agreement may only be amended by a written document executed
by the County and Grantee, or its successors and assigns.
22. Venue. Venue for any legal action relating to this Agreement shall be in the Pitkin
County District Court,Aspen, Colorado.
23. Appropriation. All financial obligations of the County under and pursuant to this
Agreement are subject to prior appropriations of monies expressly made by the County for the
purpose of this Agreement.
24.No Personal Liability.No elected official, director,officer, agent or employee of
Grantee or the County shall be charged personally or held contractually liable by or to the other
party under any term or provision of this Agreement or because any breach thereof or because of
its or their execution, approval or attempted execution of this Agreement.
25. Paragraph Headings. The paragraph headings in this Agreement have been inserted
solely for convenience of reference and are not a part of this instrument and shall have no effect
upon construction or interpretation.
26.Waiver.No failure or delay of the parties to exercise any power or right under this
Agreement shall operate as a waiver thereof,nor shall any single or partial exercise of any such
right or power,or any abandonment or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise of any other right or power.
6
Nothing contained in this Agreement shall constitute a waiver of any right, power or authority of
the parties hereto, except as expressly provided for herein.
27. Counterparts. This Agreement may be executed in duplicate original counterparts,
each of which shall constitute an original,but all of which shall constitute one and the same
document.
28. Authority to Execute. By signing this Agreement, the parties acknowledge and
represent to one another that all procedures necessary to validly contract and execute this
Agreement have been performed and that the persons signing for each party have been duly
authorized to do so. The parties acknowledge and agree that no representation or inducement
has been made regarding the rights set forth in this Agreement that is not expressly set forth
herein.
IN WITNESS WHEREOF, the parties have executed this Agreement the date and
year first above written.
BOARD OF COUNTY
��COMMISSIONERS OF PITKIN COUNTY,COLORADO
BY: C em 47 (,Yi;1i
Chair
ATTEST: AP'ROVED AS TO FORM:
BY: 4.1.� /I ,,e. , /L(k By:
Jeane , Jones, Deputy] Jerk John M. El .: orney
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
6
The foregoing instrument was acknowledged before me this 5 14''day of ,«�6, ,,
2013, by SAeow.E, Q ,\L_ , as C((\0_,1r , of the Pitkin County Board of Couftty
Commissioners.
s:
WITNESS my hand and official seal.
I - a , 0,c/(A_Lis JANE A. ACHEY
ARY PUBLIC
STATE TOF COLORADO
r eta Public NOTARY ID# 19954008967
rY MY COMMISSION EXPIRES AUGUST 04 2019
(SEAL)
7
GRANTEE:
QW' ORPORATION
By Wilk Title: 649 (II< er-
STATE OF COLORADO )
)ss.
COUNTY OF P 1 t-(--1 N. )
The foregoing instrument was acknowledged before me this2e1 day of 3✓ y
2015, by Setsoti StuNer e , as Fh 5 t"ec✓' , of Qwest Corporation, a Cdlorado
corporation.
My commission expires: 1[23./ 2.o l foe PATRICK S. RAWLEY
NOTARY PUBLIC
WITNESS my hand and official seal. STATE OF COLORADO
NOTARY ID#19994012259
My Commission Expires July 26,2016
Notary Public
(SEAL)
8
EXHIBIT A
EASEMENT DESCRIPTION
An easement being situated on portion of Lot 1, First Amended Plat of Lot 1, Pitkin
County Center Subdivision, City of Aspen, State of Colorado, as shown on the plat
thereof, recorded in Plat Book 93 at Page 56 of the Pitkin County records, said
parcel being more fully described as follows:
Beginning at the northeast corner of said Lot 1; thence S 14'50'49" W along the
easterly line of said Lot 1, a distance of 188.06 feet to the northerly line of that
alleyway lying Northerly of Lots 11 and 12, Block 19, East Aspen Addition to the
City of Aspen;
thence S 75'09'11" E along said northerly line, a distance of 10.10 feet to the
westerly line of that parcel of land described in Reception No. 472856 of the Pitkin
County records;
thence S 14'50'49" W along said westerly line the a distance of 20.39 feet to the
southerly line of said alleyway;
thence N 75'09'11" W along said southerly line, a distance of 60.19 feet;
thence N 14'50'49" E a distance of 20.39 feet to that common line being the
northerly line of said alleyway and the southerly line of said Lot 1:
thence N 75'09'11" W along said common line, a distance of 162.44 feet to the
easterly right—of—way of North Galena Street;
thence along said right—of—way, 13.68 feet along the arc of a non—tangent curve
to the left, having a radius of 53.69 feet, a central angle of 14'35'40", the chord
of which bears N 0452'48" E a distance of 13.64 feet;
thence S 75'09'11" E a distance of 65.43 feet;
thence N 14'50'49" E a distance of 6.00 feet;
thence S 75'09'11" E a distance of 94.38 feet;
thence N 14'50'49" E a distance of 49.37 feet;
thence S 75'09'11" E a distance of 23.24 feet;
thence N 14'50'49" E a distance of 34.22 feet;
thence S 75'09'11" E a distance of 11.85 feet;
thence N 14'50'49" E a distance of 57.70 feet;
thence N 05'26'00" W a distance of 24.04 feet to the northerly line of said Lot 1;
thence N 84'34'00" E along said northerly line, a distance of 21.41 feet;
thence S 57'25'00" E along said northerly line, a distance of 8.66 feet to the point
of beginning, said parcel containing 0.244 acres (10627 square feet), more or less.
W
4
6
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David A.Cooper c(
Colo.Reg.P.L.S.#29030 r i r,
For,and on .�f° 2903
behalf of SGM err
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LA 20133005
•
V M Sht. A
City of Aspen 7715/2015 asement ExDescription
s 118 West Swill sin.,s kzoo
Gkm.oad Springs,C081601 Apprcomi
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`970.945.1004 www.sgmanccam pa mro......n.s�e. J
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EXHIBIT B
Graphic Scale
25
100
11
In Feet: 1"=50'
•
D4 !oi
h,�o R/oS.�b de
leo aed 9, m
P„e orae
Gt N84'34'001
• 21.41'
1A4
S57'25'001
Pitkin 8.66'
County 1
(Lot 2, Jail Building
Amended Rio N05'26'00"W
Grande Sub) 24.04' / ' z,,
Lot 1
First Amended Plot of Lot 1 N14'50'49"E
Pitkin Canty Center Subdivision 57.70' / o
�'
S75'09'11"E
20.39'Uti.Esmt 11.85' ��,
'per Plat Book 93,Page 56 1414'50'49"E � 'e
and Book 310 Page 341 34.22' / s14'50'49"W
Delta=14'35'38" N14'S0'49"E m } 188.06'
R=53.69' S75'09'11"E I1
L=13.68' 6.00' 23.24' /i
575'06543 lines this area may
Ch Brg=N04'52'48"E 65.43' s s
Ch Dist=13.64' 575'09'11"E / be elec, fiber optic
94.38 N14'S0'49"E • mor both
5 ' 49.37 Multi—purpose
c , � ` ��r General Utility
�� �� // f Easement
r w162 5 .Tt w` / 10,62 osq.10,627 sq. ft.t
_� r lndrcof �s 575'09'11"E
Tl`T r �.��� 10.10'
ecfrk, raps:5:09,171
erground —e— ® ` tTr-
�fl �e N1450'49"E ^' �•"8cg°S VinesC i `•>
20.39' r / 514'50'49"W
Pitkin N75'09'11"W - 20.39'
County
Courthouse 60.19'
Building
Pitkin
County
Courthouse
Plaza
a
Building
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W Street
Me; Str t
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David A.Cooper N. •o' F
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behalf of SGM - /6. fill
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o 710. da Ski. B
p 118 West Sixth Slree,S�me400 City of Aspen Ode. 07/15/2015 Easement Exhibit Map
Glenwood Springs,CO 81601 Amend' Of B
`970.945.1004 www.sgmJncmm File. nK-n--
f1NTRACT l 6---9.&
5
QWEST CORPORATION, a Colorado corporation doing business as CenturyLink QC •
UNDERGROUND RIGHT-OF-WAY EASEMENT
This Underground Right-of-Way Easement Agreement is entered into this`e,-1
gK
day
oed9 / , 2015,by and between the BOARD OF COUNTY COMMISSIONERS OF
PIN COUNTY, COLORADO, a body corporate and politic, ("County") and
QWEST CORPORATION, a Colorado corporation doing business as CenturyLink QC,whose
mailing address is 100 CenturyLink Drive, Monroe, Louisiana 71203, Attention: Construction
Services ("Grantee").
RECITALS
1. The County is the record owner of that real property("Property") situated in Pitkin
County, Colorado known as:
Updated legal Second Amended Plat of Lot 1 Pitkin County Center Subdivision.
Situated in Section 7, T.10 S., R.84 W. of the 6th P.M. Pitkin County, Colorado
2. The County merged Parcel No. 273707347851 into Lot 1, First Amended Pitkin
County Center Subdivision.
3. In connection with the lot merger, the County desires by this Agreement to (a)
establish and to grant to Grantee, a perpetual,non-exclusive easement as described on Exhibit
"A"attached hereto, an underground fiber optic and copper communication facilities(the
"Facilities"to be located along with other utility lines as depicted on Exhibit"B" attached
hereto, for the right of ingress and egress across the Property for the purpose of allowing Grantee
to construct,reconstruct,repair, change, enlarge,re-phase, operate, and maintain the Facilities
with the underground vaults, fixtures and equipment used or useable in connection therewith,
together with associated equipment required above ground; and(b)to establish certain
restrictions with respect to the easement.
4. Grantee desires by this Agreement to (a) accept the easement subject to the
restrictions set forth herein; and(b)to assume certain responsibilities in connection therewith.
AGREEMENT
NOW,THEREFORE, for and in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable considerations,the receipt and sufficiency of
which are hereby acknowledged,the County and Grantee agree as follows:
1. Grant and Acceptance of Easement. The County hereby grants to Grantee, its
successors and assigns, and Grantee hereby accepts, a perpetual,non-exclusive easement and
the right of ingress and egress across the Property for the sole purpose of constructing,
reconstructing,repairing, changing, enlarging, re-phasing, operating, and maintaining the
Facility with the underground vaults, fixtures and equipment used or useable in connection
therewith,together with associated equipment required above ground(collectively the
RECEPTIONO: 626212, 01/08/2016 at
1 02:14:41 PM.
1 OF 10, R $0.00 Doc Code EASEMENT
Janice K. Vos Caudill Pitkin County, CO
"Activities"), within a multi-purpose, general purpose Utility easement, as described on Exhibit
"A"attached hereto and made part hereof by reference(the"Easement").
The Easement will be a common use easement in which other utilities will reside and
have the same or similar conditions and restrictions of use within the easement for the particular
utility. The utilities associated with this easement, and the approximate location of such utility
lines within the easement, are identified on Exhibit"B" attached hereto.
The rights herein granted specifically allow Grantee to service and repair existing utilities
and install additional underground and/or pad-mounted facilities within the Easement area
described herein.
Prior to commencement of construction, Grantee shall obtain the County's approval of
Grantee's construction plans for the Easement. Grantee shall not modify the utilities and
improvements within the Easement without first obtaining the County's approval of Grantee's
proposed construction plans for any modifications. Notwithstanding the foregoing, Grantee shall
be entitled to enter the Easement to make emergency repairs to the Facility without prior notice
to the County.
2. Vacation of Easement. Grantee agrees to vacate the portion of its existing easement
that is replaced by this Easement.
3. No Additional Easement.Nothing contained herein shall be construed to grant any
other easement across or under the Property, or across or under any other real property owned by
the County.
4. Subordination. The Property is in primary used as County Offices and the County's use
of the Property including the Easement area,has priority and preference over any use granted to
Grantee in this Agreement. The County, as the underlying fee estate owner of the Property, shall
have the right to continue to have use of and to occupy the Property and to make such use and
improvements on or to the Property, including the Easement area, consistent with its primary use
or any use that may be contemplated or conducted by the County in the future. Grantee's use of
the Easement shall be subordinate to the County's current and future use of the
Property provided that the County's current and future use do not unreasonably interfere with the
exercise by Grantee of the rights set forth in this Easement.
5. Relocation. Should the County improve the Property in furtherance of its primary use
as County Offices in such a manner as to require the relocation of Grantee's utility line or
improvements from the Easement area, the County shall provide Grantee with at least ninety(90)
days' prior written notice of such plans and shall be solely responsible for the cost to relocate the
utility line and improvements. The County shall provide Grantee with a comparable location on
the Property for the relocated Facility and grant Grantee and easement for such location
substantially in the form of this Easement. Should Grantee relocate the utility line or
improvements in furtherance of any Grantee objective or purpose,the Grantee shall be solely
responsible for the cost to relocate Grantee's utility line or improvements. The County shall
allow Grantee to perform a standard cutover procedure, if required by said relocation,which will
2
ensure that the relocated Facility is operational prior to discontinuing service from the original
service location.
6. Use of Easement Area and No Interference by Grantee. Grantee, its employees,
contractors, agents and third parties engaged by Grantee and its licensees, assigns and successors
shall have all reasonable right of access to the Easement area. The County shall use reasonable
efforts so that underground vaults and/or pad-mounted facilities installed in the Easement area
are accessible by Grantee's boom trucks and other necessary equipment and personnel without
the necessity for Grantee to remove or alter any improvements, landscaping, or other
obstructions. Without Grantee's prior approval, the County shall not alter the ground surface
grade within ten(10) feet of Grantee's vaults or facilities, nor along the natural gas line route
within the Easement area. Grantee shall install above ground vaults and facilities so that the top
of the pad is two (2)inches above the ground surface grade. Grantee shall install underground
vaults so that the top of the structure is flush or up to one(1)inch below the ground surface
grade. Any manhole openings of the underground vaults shall be uncovered(excluding snow)
and maintained by Grantee to be accessible at all times. Improvements, landscaping or any other
objects placed in the vicinity of said pad-mounted facilities shall be located so as not to hinder
complete opening of the equipment doors. The ground surface within ten(10) feet of said pad-
mounted facility shall be flat, level and free of improvements, landscaping, and other
obstructions. Improvements, landscaping and other objects will be kept a minimum of four(4)
feet from non-opening sides and backs of said pad mounted facilities.
Except in the case of emergency(where oral notice shall suffice), Grantee agrees that it must
inform the County by written notice of any desire to enter the Easement area to perform any of
the Activities granted herein and must be in receipt of written approval to enter the easement
from the County. Prior to entering the Easement, Grantee must be in receipt of all necessary
permits for the proposed activity. Grantee's use of the Easement area shall not interfere with or
interrupt any use of the Property by the County, its employees or agents.
7. Damage to other Grantees within Easement. During the performance of any
Activities granted herein, Grantee shall protect the interests of other utility company installations
within the Easement. If damage should occur to the property,utilities, infrastructure, or facilities
of any of the common easement users as a result of the Grantee's actions, the Grantee shall be
responsible for repairing such damage per the requirements of the specific entity at Grantee's
sole expense.
8. Restoration. Following Grantee's performance of any Activities granted herein,
Grantee shall promptly restore any disturbed or damaged areas of the Property to the extent
practicable to the same condition that existed immediately prior to such disturbance or damage.
Any and all costs and expenses incurred as a result of performance of any Activities granted
herein shall be the sole responsibility of Grantee.
9. Indemnification and Insurance. Grantee agrees to indemnify and hold the
County, its successors and assigns in the record ownership of the underlying Property,harmless
from any and all claims and losses of any nature whatsoever to the extent caused by any
3
negligent act or omission of Grantee, its employees, agents and contractors in connection with
the undertaking of the Activities within the Easement as contemplated herein and the subsequent
existence,use and operation of improvements resulting from such Activities, excepting such
• claims and losses which may arise directly from the willful and negligent acts of the County, its
contractors, agents or employees. This indemnification shall include actual attorneys'fees and
costs incurred in the event that any party brings an action against the County in connection with
the undertaking of the Activities contemplated by Grantee herein or the subsequent existence,
use or operation of the improvements resulting therefrom. Grantee further agrees to include the
County(and its successors and assigns in ownership of the underlying Property traversed by the
Easement, or any part thereof) as additional insured on its comprehensive general liability
insurance policy,which insurance shall be maintained by Grantee to provide protection against
liability from certain claims arising out of the use of the Easement area. Such insurance shall be
carried in amounts not less than the liability limits specified in C.R.S. § 24-10-114(1), as it may
be amended from time to time. Should any of the above-described policies be cancelled before
the expiration date thereof,notice will be delivered in accordance with policy provisions.
Grantee shall,upon written request from the County or any successor or assign,provide a
Certificate or evidence of Insurance as verification of compliance with these requirements.
10. Choice of Law. This Agreement and every related document shall be governed and
construed in accordance with the laws of the State of Colorado.
11. Binding Effect. The Easement granted herein shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns forever, including any
record owners of the underlying Property, or any part thereof. The benefits and burdens hereof
shall also run with the title to the underlying Property and all parts thereof traversed by the
Easement.
12. Attorneys' Fees. In the event the interpretation or enforcement of this Agreement
should ever become the subject of litigation, arbitration or mediation between Grantee(or its
successors and assigns) and the County, the substantially prevailing party shall be awarded its
reasonable costs and attorneys' fees and costs incurred in connection therewith.
13.No Assignment Without Consent. Grantee shall not, without first obtaining the prior
written consent of the County, sell, assign,transfer, encumber,hypothecate or sublease any or all
of the rights, interest or obligations under this Agreement. Such consent shall not be reasonably
withheld by the County. Notwithstanding the foregoing, Grantee may assign all,but not less
than all, of its rights, interest or obligations under this Agreement to any entity that controls,is
controlled by or under common control with, Grantee, and any entity that purchases all or
substantially all of Grantee's assets located in the State of Colorado.
14.Notices. All notices or other communication required or permitted under this
Agreement shall be in writing, shall be personally delivered(which includes delivery by a
nationally recognized courier service)or sent by certified mail,postage prepaid and return
receipt requested, and such notices shall be deemed given with received.
Notices shall be directed to the following addresses:
4
To Pitkin County:
Pitkin County Facilities
Attn: Jodi Smith
485 Rio Grande Place
Unit 101
Aspen, Colorado 81611
Telephone No.(970) 920-5396
Fax No. (970)920-5285
With a copy to:
Pitkin County Attorney
530 East Main Street, Suite 302
Aspen, Colorado 81611
Telephone No. (970) 920-5190
Fax No. (970)920-5198
To Grantee:
100 CenturyLink Drive
Monroe, Louisiana 71203
Attention: Construction Services
With a copy to
CenturyLink Law Department
1 Solutions Parkway
Mailstop: MO012900400-497
Town and Country,MO 63017-5827
Attn: Vice-President—Law Department
15. Performance. The Parties agree to perform any and all acts, without limitation, as may
be reasonably necessary to fully effectuate the intent and purposes of this Agreement. Whenever
any action is required or permitted to be taken by the parties under the terms of this Agreement,
such action may be taken and performed by any authorized officer, director, agent or other
representative of the parties.
16.No Third Party Beneficiaries. It is the intent of the parties hereto that no third party
beneficiary interest is created in this Agreement. The parties hereto are not presently aware of
any actions by them or any of their authorize representatives which would form the basis for
interpretation construing a different intent and expressly disclaim any such acts or actions.
17.No Waiver of Governmental Immunity. Grantee and the County, its directors,
officials, officers, agents and employees are relying upon and do not waive or abrogate, or intend
to waive or abrogate by any provision of this Agreement the monetary limitations or any other
rights immunities or protections afforded by the Colorado Governmental Immunity Act, C.R.S. §
24-10-101, et seq., as it may be amended from time to time.
5
18. Breach. In the event of a breach of any provision of this Easement written notice of
the breach, which shall include a reasonably specific description of what constitutes the breach
and what corrective action or cure is required by the party giving the notice, shall be given by the
non-breaching party. If within thirty(30) days after receipt of such written notice,the breaching
party has not cured the breach, of if cure cannot be reasonably accomplished within thirty(30)
days,has not commenced what curative measures are possible and is not prosecuting the same to
timely completion, the non-breaching party may, in addition to such contractual remedies as may
be available, ask a court of competent jurisdiction for appropriate injunctive relief.
If the breaching party is Grantee, and the breach detrimentally affects County operations in the
sole but reasonable opinion of the County, the County may demand immediate remediation or
seek immediate judicial remedies.
19. Entire Agreement. This Agreement constitutes the entire and complete agreement of
the parties in regard to the subject matter herein. No promise or undertaking has been made by
any party, and no understanding exists with respect to the transaction herein contemplated except
as expressly set forth herein. All prior and contemporaneous negotiations and understandings
between the parties are embodied and merged into this Agreement.
20. Severability. If any term or provision of this Agreement shall be held to be invalid or
unenforceable,the remaining terms and provisions of this Agreement shall continue to exist and
shall be valid and enforceable to the fullest extent permitted by law.
21. Amendment. This Agreement may only be amended by a written document executed
by the County and Grantee, or its successors and assigns.
22. Venue. Venue for any legal action relating to this Agreement shall be in the Pitkin
County District Court, Aspen, Colorado.
23. Appropriation. All financial obligations of the County under and pursuant to this
Agreement are subject to prior appropriations of monies expressly made by the County for the
purpose of this Agreement.
24.No Personal Liability.No elected official, director, officer, agent or employee of
Grantee or the County shall be charged personally or held contractually liable by or to the other
party under any term or provision of this Agreement or because any breach thereof or because of
its or their execution, approval or attempted execution of this Agreement.
25. Paragraph Headings. The paragraph headings in this Agreement have been inserted
solely for convenience of reference and are not a part of this instrument and shall have no effect
upon construction or interpretation.
26. Waiver.No failure or delay of the parties to exercise any power or right under this
Agreement shall operate as a waiver thereof,nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise of any other right or power.
6
Nothing contained in this Agreement shall constitute a waiver of any right, power or authority of
the parties hereto, except as expressly provided for herein.
27. Counterparts. This Agreement may be executed in duplicate original counterparts,
each of which shall constitute an original,but all of which shall constitute one and the same
document.
28. Authority to Execute. By signing this Agreement,the parties acknowledge and
represent to one another that all procedures necessary to validly contract and execute this
Agreement have been performed and that the persons signing for each party have been duly
authorized to do so. The parties acknowledge and agree that no representation or inducement
has been made regarding the rights set forth in this Agreement that is not expressly set forth
herein.
IN WITNESS WHEREOF,the parties have executed this Agreement the date and
year first above written.
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,COLORADO
By: C , 4T die!
Chair
ATTEST: AP'ROVED AS TO FORM:
By: ,/./ // 1,/.. O By:
Jeane I : Jones, Deputy( lerk John M. El .: u _ 'orney
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
(0 The foregoing instrument was acknowledged before me this £�N"'day of_ ,)ruA.,LUtt ,
201,5, by tr,.kh F, Ckx,4\cit_ , as C k - , of the Pitkin County Board of County
Commissioners.
Mpoofftwisisionex-piresz.
WITNESS my hand and official seal.
JANE A. ACHEY
j-- 1/t-C
a � I/A I i.LVNOTARY PUBLIC
ll _ STATE OF COLORADO
lrt'Public MY COMM SSION EDXPIRES AUO 11 GUST7 04,2019
(SEAL)
7
GRANTEE:
QW ' ♦ORPORATION
By 6
t Title: 649 1,1 G>ex-
STATE OF COLORADO )
)ss.
COUNTY OF P 1-r --1 k )
The foregoing instrument was acknowledged before me this2 e 'day of f✓ c., y ,
2015, by .T'aseh St"re , as E..%5 i'l..rew" , of Qwest Corporation, a Cdlorado
corporation.
My commission expires: 'r/a-Q. / bI 6PATRICK S. RAWLEY
( NOTARY PUBLIC
WITNESS my hand and official seal. STATE OF COLORADO
NOTARY ID#19994012259
^ My Commission Expires July 26,2016
✓e
Notary Public
(SEAL)
8
EXHIBIT A
EASEMENT DESCRIPTION
An easement being situated on portion of Lot 1, First Amended Plat of Lot 1, Pitkin
County Center Subdivision, City of Aspen, State of Colorado, as shown on the plot
thereof, recorded in Plat Book 93 at Page 56 of the Pitkin County records, said
parcel being more fully described as follows:
Beginning at the northeast corner of said Lot 1; thence S 14'50'49" W along the
easterly line of said Lot 1, a distance of 188.06 feet to the northerly line of that
alleyway lying Northerly of Lots 11 and 12, Block 19, East Aspen Addition to the
City of Aspen;
thence S 75'09'11" E along said northerly line, a distance of 10.10 feet to the
westerly line of that parcel of land described in Reception No. 472856 of the Pitkin
County records;
thence S 14'50'49" W along said westerly line the a distance of 20.39 feet to the
southerly line of said alleyway;
thence N 75'09'11" W along said southerly line, a distance of 60.19 feet;
thence N 14'50'49" E a distance of 20.39 feet to that common line being the
northerly line of said alleyway and the southerly line of said Lot 1:
thence N 75'09'11" W along said common line, a distance of 162.44 feet to the
easterly right—of—way of North Galena Street;
thence along said right—of—way, 13.68 feet along the arc of a non—tangent curve
to the left, having a radius of 53.69 feet, a central angle of 14'35'40", the chord
of which bears N 04'52'48" E a distance of 13.64 feet;
thence S 75'09'11" E a distance of 65.43 feet;
thence N 14'50'49" E a distance of 6.00 feet;
thence S 75'09'11" E a distance of 94.38 feet;
thence N 14'50'49" E a distance of 49.37 feet;
thence S 75'09'11" E a distance of 23.24 feet;
thence N 14'50'49" E a distance of 34.22 feet;
thence S 75'09'11" E a distance of 11.85 feet;
thence N 14'50'49" E a distance of 57.70 feet;
thence N 05'26'00" W a distance of 24.04 feet to the northerly line of said Lot 1;
thence N 84'34'00" E along said northerly line, a distance of 21.41 feet;
thence S 57'25'00" E along said northerly line, o distance of 8.66 feet to the point
of beginning, said parcel containing 0.244 acres (10627 square feet), more or less.
U ' C
David A.Cooper /
Cob.Reg.P.L.S.#29030 °,
For,and on •
behalf of SGM
%%%/1:,4, �ANJ
;ob No. 2013-337 005
�
• 6SGM sh, A
o „e W�s„�h s, ,s zoo City of Aspen )715720, Easement Exhibit Description
Glenwood spnrgs.CO e1601 approved.
970.945 1004 w..w.sgmiB
nc.com sda: .c,<......r�,.ea..
i
EXHIBIT B
Graphic Scale
0 25 50 00
In Feet: 1"= 50'
D4 toe
Rio 6
A"9 D1JSub nde
P�,ei6ee c,„ ix
c6
Geo N84'34'001
21.41'
N
657.25'00°E
Pitkin 8.66'
County
(Lot 2, Jail Building
Amended Rio N05'26'00'W j
Grande Sub) Lot 1 24.04' /
First Amended Plat of Lot 1 N14'50'49"E
Pitkin Conty Center Subdivision 57.70' / -o
10.39'Uli Esml 11.65' 'a.
per Plat Book 93,Page 56 N14.50'49"E 'e
and Book 310 Page 341 34.22' S14'50'49"W
Delta=14'35'38" N14'50'49"E >
L=13.68' 188.06'
R=53.69' 575.09'11"E J
r6.60' 23.24'
$75'09'11"E line; this Oreo moo
Ch 8rg=N04'52'48"E 65.43' s s
c
Ch Dist=13.64' 575'09'11"E be elec fiber Opti
v �rrOr both
/ 9j
N14'S0'49"E
49.37; / i Multi—purpose
�' p �" r / General Utility
.,„ 'w�r� 0-g'
� • 0.244 ac.t
:,�. 10,627 sq. ft.t
= Indicates 575'09'11"E
w i \. i 10.10'
fiber IDUs underground T�
eleclnb�s/noPf elc�ePh ere, N14.50'49'E'
(.11,,,t,...4;":, �, 51;, 1
20.39' 3,,;. 51450'49'W
Pitkin N75.09'11"W20.39'
County 60.19'
Courthouse
Building
Pitkin
County
Courthouse
Plaza
Building
.
a
i
WMo,n Street
a
E
i
1
o .r cto I ./, �‘�1
David A.Cooper ;. ' 'O \�, r
Colo.Reg.P.L.S.#29030 ;' t.- �,•:' C
ri
For,and on �A '0 0 'aI' i
% behalf of SGM a ,
h
"r lob No. 2013337.005
il 6SGMA- a "W Sill. B
p 118 Waf sink Streel,Sae 200 City of Aspen Ude 0771573013 Easement Exhibit Map
ck wood Springs,CO 81601 Approved. CY p
` m
970.945.1004 www.sgm,ncm f1wu�+
c .wrr
.s .
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