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Home My WebLink AboutC04-034 730 Castle Drive Development Group, LLC ~CJi+ ~~-ltJ d Co ENCROACHMENT AND MAINTENANCE AGREEMENT THIS ENCROACHMENT AND MAI~TENANCE AGREEMENT (hereinafter "Agreement") is made and entered into this ~ay of . . u \~~ ,2004 by and between Eagle County, Colorado, a body corporate and politic, by and thro h its Board of County Commissioners (hereinafter "Eagle County'l) and 730 Castle Drive Development Group, LLC (hereinafter "Owner"). WITNESSETH: WHEREAS, Owner is the owner of Lot 3, Bud Minor Subdivision, a Resubdivision of Lot 7B , Town of Eagle, County of Eagle, State of Colorado (hereinafter "Subject Property"). WHEREAS, Owner has removed Eagle County's chain link fence that surrounded Eagle County's fueling and maintenance site located at 712 Castle Drive and 766 Castle Drive, Eagle, Colorado, on that portion of Eagle County's property that adjoins the Subject Property and has installed a wooden fence around the perimeter of the Subject Property in order to create a more residential ambiance to the Subject Property. WHEREAS, said wooden fence encroaches approximately 9.6 inches onto Eagle County property as depicted in the Improvement Location Certificate date July 29,2003 and prepared by Marcin Engineering LLC, attached hereto as Exhibit A and incorporated by reference. \VHEREAS, Eagle County is willing to allow the fence to remain in its current location with the aforementioned minor encroachment onto Eagle County property pursuant to the terms and conditions of this Agreement. WHEREAS, the Parties each have the power and authority to enter into tins Agreement. NOW, THEREFORE, in consideration of the telms and covenants stated herein, the sufficiency of which is hereby acknowledged, Eagle County and Owner agree as follows: AGREEMENT: 1. DEVELOPER'S OBLIGATIONS. Construction, including replacement or significant alterations, and all maintenance and upkeep of tile fence shall be the sole responsibility and expense of Owner. Owner shall at all times keep that portion of the fence in good repair that adjoins the Eagle County property so as to adequately protect the County's property. In the event that the Town of Eagle's existing Right of Way is connected to Castle Drive, Owner shall be obligated, at his sole expense, to remove the portion of the fence to accommodate such a connection to Castle Drive. ~ 2. COUNTY'S PROPERTY RIGHTS. The encroachment of the fence onto the County's property shall not constitute any relinquishment of the County's property rights whether through claims of adverse possession or any other means. 3. TERMINATION. Eagle County shall have the right to terminate tIlls Agreement with or without cause by giving the Owner ten (10) days prior written notice of termination. Upon termination of this Agreement, Owner shall, at his sole cost, be required to remove the fence off of Eagle County property within fourteen (14) days of termination. 4. REMEDIES. Eagle County and Owner 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 tIlls Agreement both Eagle County and the Owner commit themselves to perform pursuant to these terms contained herein 5. ASSIGNABILITY. This Agreement may not be assigned without the prior written consent of County, which consent will not be unreasonably withheld. 6. SUCCESSORS. Unless and until terminated as provided in section 3 above, this Agreement and the rights and obligations created hereby shall run with the land and be binding upon and inure to the benefit of Eagle County and Owner and their respective successors and assigns. Noiling herein expressed or implied is intended or should be construed to confer or give to any person or entity other than Eagle County or Owner 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. 7. GOVERNING LAW AND JURISDICTION. This Agreement and all disputes arising hereunder shall be governed by the internal laws of the State of Colorado and the Parties agree that venue and jurisdiction over any claim arising from this Agreement shall lie in the courts of the Fifth Judicial District of Colorado. In the event of litigation, the prevailing party shall be entitled to attorney's fees and costs. 8. SEVERABILITY. It is understood and agreed by and between the Parties that if any covenant, condition or provision contained in this Agreement is held to be invalid by any court of competent jurisdiction, or otherwise appears to be invalid, such invalidity shall not affect the validity of any other covenant, condition or provision herein contained; provided however, that the invalidity of any such covenant, condition or provision does not materially prejudice either party in its respective rights and obligations contained in the remaining valid covenants, conditions and provisions of this Agreement. 9. NONWAIVER OF RIGHTS. No waiver of default by either party of any of the ternls, covenants, and conditions hereof to be performed, kept and observed by the other party shall be construed, or shall operate as a waiver of any subsequent default of any of the tenns, covenants, or conditions herein contained, to be performed, kept and observed by the other party. 2 . 10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties hereto and all other representations or statements heretofore made, verbal or written, are merged herein, and this Agreement may be amended only in writing, and executed by duly authorized representatives of the Parties hereto. No representations or promises shall be binding upon the Parties to this Agreement except those promises and representations contained herein or in some future writing executed by the Parties. 11. NOTICE. Any written notice required by this Agreement shall be deemed delivered on the happening of any of the following: (I) hand delivery to the person at the address below; (2) delivery by facsimile with confirmation of receipt to the fax number below; or (3) within three (3) days of being sent certified first class mail, postage prepaid, return receipt requested addressed as follows or to such other address as a party may designate by notice given in accordance with this section: (1 ) Eagle County: Eagle County Facilities Management Attn: Rich Cunningham, Director P.O. Box 850 Eagle, CO 81631 Fax: (970) 328-8899 Phone: (970) 328-8880 and Eagle County Attorney P.O. Box 850 Eagle, CO 81631 Fax: (970) 328-8699 Phone: (970) 328-8685 (2) Owner: Scott Turnipseed, Manager 730 Castle Drive Development Group, LLC P.O. Box 3388 Eagle, CO 81631 Fax: (970) 328-3901 Phone: (970) 328-3900 In the event Owner is no longer the current owner of the Subject Property when a notice is to be given hereunder, any written notice required or permitted hereunder may be mailed to the then 3 owner of the Subject Property to the address set forth in the deed vesting title to the Subject Property in said owner. IN WITNESS WHEREOF, the Parties have executed this Encroachment and Maintenance Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY CO MISSIONERS ATTEST: BY: MicHael L. Gallagher, Cha' OWNER: 730 Castle Drive Development Group, LLC STATE OF COLORADO ) ) SS. COUNTY OF EAGLE ) The foregoing instrument was acknOWledgeJ~e me by cott Turnipseed as Manager of 730 CastIe Drive Development Group, LLC, this day of ,2004. 2y ommission expires: {film lOLl ~co ;a~.' ~"."IIDi"Oh,. , ~\\", 1\... M 0 r:,o.., P bl' ..'fii .... r' O'A. 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