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Home My WebLink AboutC05-299 EAGLE COUNTY RECClF'<"~, COLORAOO 933661 TEAK J SIMONTON \ 10/18/2005 05: 41<dPM 23 REC: $0.00 DOC: $ PAGES: 4 II I III II II II I I II ENCROACHMENT EASEMENT AGREEMENT _THIS AGREEMENT (hereinafter "Agreement") is made and entered into this day of e~1 ' 2005 by and between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners(hereinafter "Eagle County") and Eagle-Vail Townhouse Association, a Colorado non-profit organization (hereinafter "Association") WITNESSETH: WHEREAS, Association is the manager of seven multi family lots, described as lots I, 2, 3, 4, 5,6, and 7, Block 3, Filing 2, Eagle-Vail Subdivision, and more commonly known as Eagle-Vail Townhouses in Eagle County, Colorado (hereinafter "Subject Property"). WHEREAS, Association is reconstructing four trash enclosures for dumpsters partially on the Subject Property and primarily in County right of way as they exist. As part of this construction, Association is generally reconstructing concrete pads and building concrete block walls with gates to enclose the dumpsters. WHEREAS, Association is desirous of constructing portions of the enclosures in Eagle County's Road Right-of-Way adjacent to the Subject Property. WHEREAS, Eagle County is willing to allow construction of the enclosures in Eagle County's Road Right-of-Way 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 Association agree as follows: ENCROACHMENT EASEMENT GRANT: For the consideration set forth herein, the sufficiency of which is hereby acknowledged, Eagle County hereby grants and conveys to Association, his successors and assigns, a non-exclusive easement for the purposes of reconstructing and maintaining trash enclosures within the Eagle County Road Right-of-Way at a location shown on Exhibit "A" attached hereto and incorporated herein by this reference (hereinafter "Encroachment Easement"). The Encroachment Easement granted in this agreement shall be possessed and enjoyed by Association, his successors and assigns, so long as the Encroachment Easement shall be used by Association in accordance with the terms and conditions of this Agreement. In the event that Association ceases to use the Encroachment Easement in accordance with the terms and conditions of this Agreement or otherwise fails to comply with any and all of the terms and conditions of this Agreement, this Agreement and Encroachment Easement may be 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 1 Association to remove and/or relocate the trash enclosures at Association's sole expense upon notice by Eagle County. Upon termination or relocation, Association agrees to restore the easement to its original condition, or as close thereto as possible. The Association agrees to re- grade and re-vegetate the disturbed area within the easement. If Association shall fail to timely remove the trash enclosures and restore the Encroachment Easement upon notice, Eagle County may do so at Association'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 Association'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 Association of the 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 Association to use the same for the purposes herein granted. The encroachment of the trash enclosures into the County's Road Right-of-Way 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 ENCROACHMENT EASMENT: Construction, including replacement or significant alterations, and maintenance of the trash enclosures will be the sole responsibility and expense of Association. No construction shall be commenced until approved in writing by Eagle County, such approval not to be unreasonably withheld or delayed. Association agrees to be responsible for all ongoing repair and maintenance costs associated with the current and any future use of the Encroachment Easement. Whenever possible, Association shall notify and coordinate with Eagle County prior to performing any maintenance to avoid disruption within the County's Road Right-of-Way. INDEMNIFICATION: The Association 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 Association hereunder; and Association 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. 2 ENFORCEMENT REMEDIES: This Agreement shall be recorded with the Eagle County Clerk and Recorder's Office and shall constitute covenants running with the Subject Property, as a burden thereon, for the benefit of, and shall be specifically enforceable by Eagle County against Association, his successors and assigns, including but not limited to any future Association of the Subject Property. The Association's obligations for restoration, repair, and indemnification shall survIVe termination of this Agreement and the Encroachment Easement. Eagle County and Association 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 Association 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 Association 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 Association 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 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 Association. This Agreement represents the full and complete understanding of Eagle County and Association and supersedes any prior agreements, discussions, negotiations, representations or understandings of Eagle County and Association 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, 3 promise, or consideration different from the terms herein contained shall be binding on either party, or its agents or employees hereto. 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 ASSOCIATION have executed this Encroachment Easement Agreement this / --q- day of Ocfrr(;e/{ , 2005. , ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS BY Commissioners EAGLE- V AIL TOWNHOUSE ASSOCIATION BY: Scott M. Luinstra President and Manager Eagle- Vail Townhouse Association Ii \ ' STATE OF ("C)\D\ ('~60 ) ) SS. COUNTY OF foregoing instrument was acknowledged before me by day 2005. 4