HomeMy WebLinkAboutC07-314 Nova Guides_encroachment agreementENCROACHMENT EASEMENT AGREEMENT
THIS AGREEMENT ("Agreement"), made this i �i day of October, 2007 between Eagle
County, Colorado ("County") and Nova Guides, Inc., a Colorado Corporation ("Nova"),
WITNESSETH:
WHEREAS, Nova conducts commercial recreational snowmobile operations at a location on
Tigiwon Road one-half mile up the road from its intersection with Highway 24; and
WHEREAS, with the consent of adjacent property owners, by Resolution No. 88-25, County's
Board of County Commissioners approved closure of Tigiwon Road by location of a gate
constructed and maintained by Nova 0.3 miles west of Highway 24 for the period December 1 to
April 30 of each year; and
WHEREAS, the ownership of certain of the adjacent properties has changed since adoption of
Resolution 88-25, and as a result the U.S. Forest Service, one of the then and current property
owners, has requested ratification by County of the actions authorized by Resolution 88-25 based
on the current consent of all current owners of adjacent property; and
WHEREAS, County is willing to ratify such prior authorization by granting of this
encroachment easement agreement allowing such gate as well as the limited parking within the
right of way contemplated by Resolption 88-25 on the terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the following promises,
County and Nova agree as follows:
ENCROACHMENT EASEMENT GRANT:
For good and sufficient consideration, County grants and conveys to Nova, its successors and
assigns, a non-exclusive easement for the purposes of maintaining the aforementioned gate
across County's Tigiwon Road right-of—way and parking of customer vehicles along Tigiwon
Road, all as shown on Exhibits "A" and "B" attached hereto and incorporated herein by this
reference (hereinafter "Encroachment Easement").
The Encroachment Easement granted in this Agreement shall be possessed and enjoyed by Nova,
his successors and assigns, so long as the Encroachment Easement shall be used by Nova in
accordance with the terms and conditions of this Agreement. In the event that Nova 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 County.
Notwithstanding the foregoing paragraph, County, in its sole reasonable discretion, reserves the
right to terminate this Agreement and the Encroachment Easement and to require Nova to
remove the gate and cease authorization of customer parking at Nova's sole expense upon notice
by County. Upon such termination and removal, Nova agrees to restore the easement to its
original condition, or as close thereto as possible. Nova further agrees to re -grade and re -
vegetate the disturbed area within the easement. If Nova shall fail to timely remove gate and
restore the Encroachment Easement upon notice, County may do so at Nova's expense.
Nova maintains at the site of its snowmobile recreational operations various items of equipment
and supplies, including warming trailer, snowcats, snowmobiles, fuel and oil storage shed and
tanks, generators and the like. Continuance of this Encroachment Agreement is contingent on
exercise by Nova of the utmost care to protect the environment, and the Eagle River in particular,
against contamination arising from the storage of such equipment and supplied. Nova agrees to
cease the practice of fueling its fleet vehicles (vans, buses, etc.) at the site of its operations in
order to reduce the risk of contaminating fuel spillage. Nova further agrees to submit to County
promptly after execution of the Encroachment Agreement a written spill prevention control and
countermeasures plan and a site plan addressing the issue of hazardous materials storage. Such
plan shall be subject to the approval of County. Further, Nova agrees to provide County
annually (on or about the anniversary date of this Encroachment Agreement) a written report as
to the conduct -of its site operations over the preceding year, specifically documenting where it is
fueling its fleet vehicles and any other items undertaken by Nova in the plans or required of
Nova by County for inclusion in the plans. It is specifically agreed that the continuation of the
Encroachment Agreement is contingent on County's satisfaction with Nova's compliance with
the plans and County's requirements for environmental protection at the site.
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 they do not interfere with Nova'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 Nova of the rights granted in this
agreement. Without limiting the foregoing, County reserves the right to place along, across,
under, over and through the Encroachment Easement as many electric lines, power lines, water
lines, sewer lines, gas lines, telephone lines and other utilities as Eagle County may desire
subject only to the right of Nova to use the same for the purposes herein granted.
The encroachment of the gate and customer parking into 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:
Replacement or significant alterations, and maintenance of the gate enclosures will be the sole
responsibility and expense of Nova. No construction shall be commenced until approved in
writing by County, but such approval not to be unreasonably withheld or delayed.
Nova 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, Nova shall notify
and coordinate with County prior to performing any maintenance to avoid disruption within
County's right-of-way.
INDEMNIFICATION:
Nova 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 Nova
hereunder; and Nova 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:
This Agreement shall be recorded with the 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 County against Nova, its successors and assigns,
including but not limited to any future entity of the Subject Property.
Nova's obligations for restoration, repair, and indemnification shall survive termination of this
Agreement and the Encroachment Easement.
County and Nova agree that t4i� 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 Nova 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 County and Nova and its 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 Nova and its 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 County and Nova. This Agreement
represents the full and complete understanding of Nova and County and supersedes any prior
agreements, discussions, negotiations, representations or understandings of County and Nova
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. County makes no warranties as to the title of the easement conveyed.
IN WITNESS WHEREOF, EAGLE COUNTY and NOVA GUIDES, INC have executed this
Encroachment Easement Agreement this day of 0(t- , 2007.
ATTEST:
oc
o� c
BY:
Clerk to the Board oftounty
Commissioners
COUNTY OF EAGLE, STATE
OF COLORADO, by and
through)ARD OF
COUNTY COMMISSIONERS
Menconi, Chairman
Nova Guides, Inc.
BY:
Steve ittel,
STATE OF COC.oref}DD )
) SS.
COUNTY OF cA G L L' )
4
The foregoing instrument was acknowledged before me by Steve Pittel this day of
October, 2007.
My commission expires: 1:5-,
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RLM/contracts/Nova Guides Encroachment Agreement
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R
JAYNE D.
BORDEN C
A�• •o
OF -C. .0.
My Commission Expires: Mar. 15, 2010
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Exhibit "A "
Nova Guide Site on Tigiwon Road
e 0 0.045 0.09 0.18 Miles
I I I I I I I I I
Author: Community Development
Date: 11 October 2007
Use of this map should be for general and
informational purposes only. Eagle County
does not warrant the accuracy of the data
contained herein. fAGI COUNTY
