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Home My WebLink AboutC07-237 Homestead Owners Association_encroachment agreementENCROACHMENT EASEMENT AGREEMENT THIS AGREEMENT (hereinafter "Agreement") is made and entered into this ?J'1, day of , 2007 by and between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners(hereinafter "Eagle County") and Homestead Owners Association, Inc., a Colorado non-profit organization (hereinafter "Association") WITNESSETH: WHEREAS, Association is the manager of that portion of Homestead Subdivision, Filing No's. 1, 2, & 3 located in Sections 5, 8, and 9, T 5 S, R 82 W of the 6th principal meridian in Eagle County (hereinafter "Subject Property"). WHEREAS, Eagle County has road and other right-of-ways through the Subject Property. WHEREAS, Association has constructed and is proposing to construct pedestrian sidewalks in Eagle County rights-of-way as they exist. Association has constructed sidewalks, curb and gutters in Eagle County right-of-way in a location identified as Phase I on the attached Exhibit "A," which is attached hereto and incorporated herein by this reference. Association is proposing to construct sidewalks, curb and gutters in Eagle County right-of-way in a location identified as Phase II on the attached Exhibit "B." (Collectively the sidewalks, curb and gutters shown on Phase I and Phase II shall hereinafter be referred to as the "Improvements.") WHEREAS, Eagle County is willing to allow construction of the Improvements in Eagle County's 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 constructing and maintaining sidewalks, curb, and gutters within the Eagle County rights-of-way at a location shown on Exhibit "A" attached hereto and incorporated herein by this reference (hereinafter "Encroachment Easement"). The Encroachment Easement granted herein shall be an interest in real property owned by the Association for the common use and enjoyment of the Association owners. Accordingly, the Encroachment Easement and Improvements thereon shall be deemed Common Area as that term is defined in Section 1.4 of the Amended and Restated Declaration of Covenants, Conditions and Restriction of the Homestead. The Encroachment Easement granted in this agreement shall be possessed and enjoyed by Association, its successors and assigns, so long as the Encroachment Easement shall be used by I 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 anything herein to the contrary, Eagle County, in its sole reasonable discretion, reserves the right to terminate this Agreement as it relates to all or a portion of the Encroachment Easement and to require Association to remove the Improvements at Association's sole expense upon 180 days notice by Eagle County. Upon termination, 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 Improvements 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 unreasonably 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 Improvements into Eagle County's rights-of-way shall not constitute any relinquishment of Eagle 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 Improvements will be the sole responsibility of Association. No construction shall be commenced until approved in writing by Eagle County, such approval not to be unreasonably withheld or delayed. Notwithstanding the foregoing, Eagle County will require any utility company or other persons permitted to construct in the County right-of-way to repair any damage they may cause to County right-of-way and/or the Improvements as part of the permitting process. Association agrees to be responsible for all ongoing necessary repair and maintenance associated with the current and any future use of the Encroachment Easement. INDEMNIFICATION: 2 R'- 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, the 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. 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. 3 13L, 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, 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 147 day of , 2007. ATTEST: Clerk to the Board of COUNTY OF EAGLE, STATE OF COLORADO, by and through BOARD OF OG ' Z 1 * BY: Cossione�rs____ MMISSIONERS Menconi, Chairman TITLE:�Pi STATE OF ) SS. COUNTY OF - ) 5 The foregoing instrument was acknowledged before me by �4' Xc=-cf'�Cl , this ; °' qday of e :E -W '2007. 4 My commission expires: i5 0 Otar PU 1C i •o `''&13L%0 4 SOF G01.� �Y � Exp�regp'�5/2ppg