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Home My WebLink AboutC07-119 Town of Eagle_Encroachment EasementENCROACHMENT EASEMENT AGREEMENT THIS AGREEMENT (hereinafter "Agreement") is made and entered into this_-�2'�.f day of , 2007 by and between Eagle County, Colorado, a body corporate and politic, by and t ough its Board of County Commissioners(hereinafter "Eagle County") and Town of Eagle, Colorado, a municipal corporation, owner of Block 32, Town of Eagle, County of Eagle, State of Colorado (hereinafter "Town"). WITNESSETH: WHEREAS, Town is the owner of Block 32, Town of Eagle, County of Eagle, State of Colorado, more commonly known as the Eagle Town Park located at 206 Fifth Street, Eagle, Colorado (hereinafter "Subject Property"); and WHEREAS, the Town is constructing additional improvements to its Town Park on the Subject Property. As part of this construction, the Town desires to erect three (3) street lights and install a horse shoes court on certain property owed by Eagle County adjacent to the Subject Property; and WHEREAS, Eagle County is willing to allow construction and installation of street lights and a horse shoes court on its property 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 Town agree as follows: SECTION 1 ENCROACHMENT EASEMENT GRANT For the consideration set forth herein, the sufficiency of which is hereby acknowledged, Eagle County hereby grants and conveys to the Town, its successors and assigns, a non-exclusive easement for the purposes of installing, constructing and maintaining street light poles and a horse shoes court and related appurtenances for use by the general public within property owned by Eagle County as more fully described in Exhibit "A", attached hereto and incorporated herein by this reference (hereinafter "Encroachment Easements"). The Encroachment Easements granted in this Agreement shall be possessed and enjoyed by Town, its successors and assigns, and members of the public so long as the Encroachment Easements shall be used by Town and the public in accordance with the terms and conditions of this Agreement. In the event that Town or the public ceases to use the Encroachment Easements 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 Easements may be terminated upon notice by Eagle County. Town Park Encroachment Easement Agr. 1 April 18, 2007 Notwithstanding the foregoing paragraph, Eagle County, in its sole discretion, reserves the right to terminate this Agreement and the Encroachment Easements and to require Town to remove and/or relocate the street lights and horse shoes court constructed or installed by the Town at the Town's sole expense upon ninety (90) days advance written notice to the Town by Eagle County. Upon termination or relocation, the Town agrees to restore the easement to its original condition, or as close thereto as possible. The Town agrees to re -grade and re -vegetate the disturbed area within the Encroachment Easements. If the Town shall fail to timely remove the street light poles and/or horse shoes court and related appurtenances thereto and restore the Encroachment Easements upon notice, Eagle County may do so at Town's expense. The Encroachment Easements granted by this Agreement are non-exclusive and Eagle County reserves the right to use for itself and to grant for others easements, licenses or rights-of- way over, under, across or through the Encroachment Easements herein granted, provided that they do not interfere with Town's Encroachment Easements herein. Eagle County reserves the right to use and enjoy the premises to the fullest possible extent without unreasonable interference with the exercise by Town of the rights granted in this Agreement. The encroachment of the street lights, horse shoes court and related appurtenances into or onto the County's property shall not constitute any relinquishment of the County's fee simple property rights whether through claims of adverse possession or any other means. SECTION 2 CONSTRUCTION AND MAINTENANCE OF ENCROACHMENT EASMENTS Construction, including replacement or significant alterations, and maintenance of the street lights and horse shoes court will be the sole responsibility and expense of the Town. All construction, including replacement or significant alterations, shall be performed pursuant to plans and specifications prepared 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. The Town agrees to be responsible for all ongoing repair and maintenance costs associated with the current and any future use of the Encroachment Easements by the Town or members of the public. Whenever possible, the Town shall notify and coordinate with Eagle County prior to performing any maintenance to avoid disruption within the County's property. SECTION 3 INDEMNIFICATION The Town 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 Easements, use of the Encroachment Easements by the public, or are based upon any performance or nonperformance by Town hereunder; and Town shall reimburse Eagle County for any and all legal and other expenses Town Park Encroachment Easement Agr. 2 April 18, 2007 incurred by Eagle County in connection with investigating or defending any such loss, claim, damage, liability or action. SECTION 4 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 the Town, its successors and assigns, including but not limited to any future owner of the Subject Property. The Town's obligations for restoration, repair, and indemnification shall survive termination of this Agreement and the Encroachment Easements. Eagle County and Town agree that this Agreement may be enforced by an action 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 Town 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. SECTION 5 MISCELLANEOUS PROVISIONS 5.1 Governing Law. 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. 5.2 Binding on Successors and Assigns. This Agreement and the rights and obligations created hereby shall be binding upon and inure to the benefit of Eagle County and Town 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 Town 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. 5.3 Severability. 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 provisions shall be fully severable and this Agreement shall be construed and enforced as if such invalid provision had never been inserted into this Agreement. 5.4 Amendments. 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 Town. This Agreement represents the full and complete understanding of Eagle County and Town and supersedes any prior agreements, discussions, negotiations, Town Park Encroachment Easement Agr. 3 April 18, 2007 representations or understandings of Eagle County and Town with respect to the subject matter contained herein. 5.5 Complete Agreement. 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. 5.6 Covenants. 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. 5.7 Subject to Prior Grants. The Encroachment Easements are granted subject to prior grants of easements and other ownership interests of record. Eagle County makes no warranties as to the title of the easements conveyed. IN WITNESS WHEREOF, the parties have executed this Encroachment Easement Agreement the day and year first above written. ATTEST: %WAR �. vs r0toc�Pa° BY: Clerk to the Board of County Commissioners ATTEST: KIV Marilene M. Miller, Town Clerk COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS BY: A"" -o —"XOA— Ani-Meneo,ni airman Or -r mm TOWN OF EAGLE, COLORADO a municipal corporation Jon Stavney, Mayor Town Park Encroachment Easement Agr. 4 April 18, 2007 STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me by Am Menconi, this day of 32007. My commission expires: Notary Public STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me by Jon Stavney, Mayor and Marilene M. Miller, Town Clerk, this day of , 2007. My commission expires: Notary Public Town Park Encroachment Easement Agr. $ April 18, 2007