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HomeMy WebLinkAboutC05-218 Bluffs as Las Vistas_encroachment agreement 111111111111111 b~ 11111111\ III ~~tlr.~14 .2" Teak J Simonton Eagle CO 23 R 0.00 0 0.00 ENCROACHMENT AGREEMENT THIS ENCROACHM~T AGREEMENT (hereinafter "Agreement") is made and entered into this 5~ day of ..)\11-,< ,2005 by and between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners(hereinafter "Eagle County") and BL..\JFfS,/.Io"t' L..I;.V.~.4'. u.c. owner of L..c'l. \f..~A<;" A~ c; \r>J Co \...S:\ dE I'!;. J ?i.-V='t\.J:' ~ (hereinafter "Owner") WITNESSETH: \VHEREAS, Owner is the owner of LA';" \!~AS Arr <;~..r(;~\I'<."E.'S I?\..-\A-~ ' and more commonly known as 7 \ \ C . '7~ \ D ~ ~ \ \ F ~\t.JG,I.XI't.~ ~.in Edwards, Colorado . (hereinafter "Subject Property"). WHEREAS, in improving the Subject Property, Owner has constructed portions of a driveway, patios, and parking related improvements (hereinafter "Private Improvements") as wel1 as associated culverts, retention vaults, swales, and other drainage improvements (hereinafter "Drainage hnprovements"). These Improvements are more ful1y set forth in Building Permit No's: BP-15905; BP-15906, and; BP-15907 and are located on and across a drainage easement dedicated to the public and depicted on the Final Plat of Las Vistas at Singletree recorded at Reception Number 523633, Book 627, Page 571 (hereinafter "Easement"). WHEREAS, Eagle County is willing to al10w the Private Improvements and Drainage Improvements to remain in the Easement 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 Owner agree as fol1ows: ENCROACHMENT GRANT: For the consideration set forth herein, the sufficiency of which is hereby acknowledged, Eagle County shal1, to the extent it is legal1y authorized to do so, al10w Owner, his successors and assigns, a non-exclusive encroachment into the Easement for the purposes of placing, constructing and maintaining the Private Improvements and Drainage Improvements ("Encroachment Grant"). The Encroachment Grant set forth in this agreement shal1 be possessed and enjoyed by Owner, his successors and assigns, so long as the Encroachment Grant shal1 be used by Owner in accordance with the terms and conditions of this Agreement. In the event that Owner ceases to use the Encroachment Grant in accordance with the terms and conditions of this Agreement or otherwise fails to comply with any and al1 of the terms and conditions of this Agreement, this Agreement and Encroachment Grant may be terminated upon notice by Eagle County. Notwithstanding the foregoing paragraph, Eagle County, in its sole discretion, reserves the right to terminate this Agreement and the Encroachment Grant and to require Owner to remove and/or 1 relocate the Improvements at Owner's sole expense upon notice by Eagle County. Upon termination or relocation, Owner agrees to restore the Easement to its original condit ion, or as close thereto as possible. The Owner agrees to fe-grade and re-vegetate the disturbed area within the :Easement. If Owner shall fail to timely remove the Improvements and restore the Easement upon notice, Eagle County may do so at Owner's expense. The Encroachment Grant set forth in this agreement is non-exclusive and Eagle County reserves the right to use tor itself and to grant tor others rights-of-way over, under, across or through.the. Easement, provided that they do not jnterl~m.~ with Owner's easement herein. Eagle County reserves the right to use and enjoy the premises to the fullest possible extent without unreasonable interference with the exercise by Owner of the rights granted in this agreement Withe"! limiting the fur~geiftg, Eagle Cot:mty re:rerves the right 1:0. plaee along, fte1"03:'l, t:ffiaef', . , . O'+,.-ttef t6 tt'le {.he some faf t.ke p~t;8g l:l.U1!iR grMt~d. The encroachment of the Private Improvements and Drainage Improvements into the Ease nt shall not constitute any relinquishment of the County's property rights whether through claims of adverse possession or any other means. CONSTRUCTION AND MAINTENANCE OF THE JMrROVEM~:NTS: ---._-.--.---.--.--.--- Proper maintenance of the Private Improvements and Drainage Improvements are necessary for the adequate and appropriate drainage of the Easement. Accordingly, Owner shall repair and maintain all of the Private Improvements and Drainage Improvements at Owner's sole expense. Owner shall cause reasonable and good care to be taken of the Private Improvements and Drainage Improvements and shaH promptly cause to be made aU repairs or modifications necessary to keep the same in good and working order and condition. An construction. including replacement or significant alterations and repair shall be performed pursuant to plans and specifications prepare.d by a Colorado registered professional engineer. and no constructIon shall be commenced until such plans and specifications have been approved in writing by Eagle County. such approval not to be unreasonably withheld or delayed. In the event Owner fails to properly maintain the Drainage Improvements or fails to make necessary repairs or modifications to the same, Eagle County may perform or have performed such maintenance, repairs, or modifications at Ovmer's expense. In the event that Eagle County must undertake such maintenance. repairs, or modifleat ions, Owner agrees to release and ho.ld.......... harmless Eagle County, its officers, directors. agents, servants or employees, from any resulting damage to person or property occurring on the Drainage Improvements, Private Improvements, or other property belonging to Owner and Owner shall bear the cost of any such damage. INDEMNIFICATION: The Owner shall. to the fhllest extent permitted by law. indemnifY and hold harmless Eagle County and any of its otl1cers, agents and employees against any losses. claims. damages or liabilities for which Eagle County or any of its officers, agents, or employees may become 2 subject to, insofar as any such losses. claims, damages or liabilities arise out of, directly or indirectly. this Agreement and the Enc.roachment Grant, or are based upon any performance or nonperformance by Owner hereunder; and Owner shall reimburse Eagle County ror any and all legal and other expenses incurred by Eagle County in connecticn with inve~1igating 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 aU obligations of Owner set forth herein shall constitute covenants running with the Subject Property, as a burden thereon, for the benefit ot: and shall be specifically enforceable by Eagle COlmty against Owner, his successors and assigns. including but nct limited to any future Owner of the Subject Property. The Owner's obligations for rest.oration, repair, and indemnification shaH survive ternunati.on .of this Agreement and the Encroachment Grant. Eagle County and Owner agree that this Agreement may be enforced tor 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 C.ounty and the Owner commit themselves to perfonn pursuant to these terms contained herein. In the event that an action is brought to entorce this Agreement. the prevailing party shall be responsible for the recovery if 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 tor any action arising out of any dispute pertaining to this Agreement shall be in Eagle. C.olorado. This Agreement and the rights and obligations created hereby shall be binding upon and inure to the benefit of Eagle County and Owner and their respective successors and assigns. Nothing herein expressed or implied is intended or should be construed to conter 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 of 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 shaH be deemed severable and its invalidity or its unenf.orceability shaH 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 v,Titten agreement duly authoriz.ed and executed by both Eagle County and Owner. This 3 Agreement represents the full and complete understanding of Eagle County and Owner and supersedes any prior agreements, discussions. negotiations, representations or lmderstandings of Eagle County and Owner with respect to the subject matter contained herein. The partics hereto agree that neither has madc or authorized any agreement with respect to the subject matter of this instrument other than expressly set forth herein, and no oral representatiol4 promise, or consideration ditTerent from the terms herein contained shaH be binding on either -.party.,--Or-Jts-agents--Or-.empJoyeesJlef.eto. 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 OWNER have executed this Encroachment Easement Agreement this ________.___day of ~L7 ,2005: ArrEST: COUNTY OF EAGLE, 81' ATE OF COLORADO, by and through its BOARD OF COUNT 1ISSIONERS BY' BY: Clerk to the Board of County Commissioners OWNER BY: ._------------------------------------------------------------------------------------------- STATE COUNTY OF The foregping instrument was acknowledged before me by this r~/;;~T<1ay of , ~J ('- ,rfl1::! _ . ,2005. , j' \,.~-?/ My commission expires: MY COMMISSION # DO 100137 EXPiRES: May 3, 200ll ~~"~~~~""_~h<",.'"'",""'"''''''<''''~"' -~--~- NQWyPubHc (l:\kyan\MiSiC~0*--bmQ\t.C{.l.~ml:1ll.4 .~r<:el114-'!lt 5