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HomeMy WebLinkAboutC07-259 Eagle Vail Property Owners Association_encroachment easementENCROACHMENT EASEMENT AGREEMENT THIS AGREEMENT ("Agreement"), dated5�, 2007 between Eagle County, Colorado, ("County") and Eagle -Vail Property�Association, Inc. ("Association"), WITNESSETH: WHEREAS, Association is the manager of that portion of Eagle -Vail Subdivision, Filing No. 1 ("Subdivision") located in Section 17, T 5 S, R 81 W of the 6th principal meridian in County (hereinafter "Property"); and WHEREAS, Association is duly authorized by the organizing and operating documents of the subdivision to manage the affairs of the Subdivision, including entering into binding agreements on behalf of the Subdivision; and WHEREAS, Association wants to construct a pedestrian walk way in the County Road Right - of -Way at locations adjoining Eagle Road in Subdivision, by widening and paving the southern and the western shoulders of Eagle Road, where appropriate, by six (6) feet. The pedestrian walk way will be from Highway 6 to the end of Eagle Road. The walk way surface will be paved to join and be flush with the surface of Eagle Road. Additionally, an edge stripe, rumble strip, and pedestrian markings will be provided for pedestrian safety; and WHEREAS, County is willing to allow the Construction subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the following promises, Eagle County and Association agree as follows: ENCROACHMENT EASEMENT GRANT: For the consideration set forth herein, the sufficiency of which is hereby acknowledged, County hereby grants and conveys to Association, its successors and assigns, a non-exclusive easement for the purposes of constructing and maintaining a pedestrian walk way within the County Road Right -of -Way at the locations shown on Exhibits "A", "B" & "C" attached hereto and incorporated herein by this reference ("Encroachment Easement"). The Encroachment Easement shall be possessed and enjoyed by Association, its 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 by County upon thirty (30) days written notice to Association. Notwithstanding the foregoing paragraph, County reserves the right, upon thirty (30) days written notice to Association, to terminate this Agreement and the Encroachment Easement and to require Association to remove and/or relocate the pedestrian walk way at Association's sole expense upon sixty (60) days' notice by County. Such right of County will not be exercised arbitrarily or discriminatorily, but only if in County's discretion, it concludes that the health, welfare or safety of residents of or visitors to Eagle County justify exercise of such right. Upon such termination or relocation, Association agrees to restore the area covered by the Encroachment Easement to its original condition, including re -grading and re -vegetation, or as close thereto as possible, within ninety (90) days of receipt of such notice. If Association shall fail to timely remove the pedestrian walk way and restore the Encroachment Easement, County may do so at Association's expense. The Encroachment Easement granted by this Agreement is non-exclusive and 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 such use or grants do not interfere with Association's easement herein. 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, or authorize placement by others, 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 County may desire subject only to the right of Association to use the same for the purposes herein granted. The encroachment of the pedestrian walk way 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 IN ENCROACHMENT EASEMENT: Construction, including replacement or significant alterations, and maintenance of the pedestrian walk way will be the sole responsibility and expense of Association. No construction shall be commenced until approved in writing by County, such approval not to be unreasonably withheld or delayed. Association agrees to be responsible for clearing all gravel and debris that may accumulate on or around the pedestrian walk way. Eagle County will be responsible for snow management operations. Association may be called upon by Eagle County to assist with snow removal/ management for the walk way. Snow and gravel removed from the walk way must not be deposited into the roadway. 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. PA INDEMNIFICATION: The Association shall, to the fullest extent permitted by law, indemnify and hold harmless County and any of its officers, agents and employees against any losses, claims, damages or liabilities for which 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 County for any and all legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. ENFORCEMENT REMEDIES: The Association's obligations hereunder shall survive termination of the Agreement. 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 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 for 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 the State of Colorado District Court in and for Eagle County, Colorado. This Agreement, and the rights and obligations created hereby, shall be binding upon and inure to the benefit of 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 County or Association 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. 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 County and Association. This Agreement represents the full and complete understanding of County and Association and supersedes any prior agreements, discussions, negotiations, representations or understandings of 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 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, COUNTY and ASSOCIATION have executed this Encroachment Easement Agreement this k day of J v 1'/ , 2007. ATTEST: Clerk to the Board of County Commissioners COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF CO OMMISSIONERS BY: r Menconi, Chairman EAGLE-VAIL PROPERTY OWNERS' ASSOCIATION, INC. BY: Jeff Lay an Presiders STATE OF ) SS. COUNTY OFQ'- �� ) They f regoipg instrument was acknowledged before me 4Z'_4z y? mom. ,this day of . �� ` �, ' , 2007. r� lr My oinmis4 on expires: Notary Pu is ° i; =ANR.RIGHTBLICORADO My Commission Expires 12118/2010