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HomeMy WebLinkAboutC08-196ENCROACHMENT EASEMENT AGREEMENT THIS AGREEMENT (hereinafter "Agreement") is made and entered into this ~ day of 2008 by and between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners (hereinafter "County") and the Town of Gypsum, a home rule municipal corporation organized pursuant to Article XX of the Colorado Constitution (hereinafter "Town") WITNESSETH: WHEREAS, County is the fee simple owner of certain real property known as the Eagle County Regional Airport (hereinafter "Property"). WHEREAS, Gypsum is desirous and County is supportive of constructing an extension of its street system, to be known as the Jules Drive Extension, in a location on the Property as shown on the attached Exhibit "A" (hereinafter "Jules Drive Extension"). WHEREAS, County and Town executed an Intergovernmental Agreement Regarding Jules Drive Extension on February 9, 1999 wherein the County stipulated to conveying to the Town the Jules Drive Extension Parcel. WHEREAS, the Jules Drive Extension property was originally acquired by the County with funding assistance from the Federal Aviation Administration (hereinafter "FAA"), necessitating the release of the Jules Drive Extension property by the FAA as a condition to conveyance. WHEREAS, the County has submitted a Request for Release of Federally Funded Airport Property for Jules Drive at the Eagle County Regional Airport to the FAA dated April 18, 2007. WHEREAS, the Town desires to move forward with construction pending final FAA approval of said release request 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, the County and Town 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 Town an easement for the purposes of constructing, operating, and maintaining the Jules Drive Extensian within the Property 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 Town so long as the Encroachment Easement shall be used by Town in accordance with the terms and conditions of this Agreement. In the event that Town ceases to use the Encroachment Easement 1 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 maybe terminated upon notice by County. This Encroachment Easement shall automatically terminate upon the conveyance of a fee simple interest to the Town by County of the Jules Drive Extension upon release of the same by the FAA. Additionally and notwithstanding the foregoing paragraph, County reserves the right to terminate this Agreement and the Encroachment Easement and to require Town to remove and/or relocate the Jules Drive Extension upon notice by County. County shall only execute such termination provision upon a showing of a reasonably necessary aviation related need and shall make reasonable efforts to provide the Town with an alternative location for the Jules Drive Extension. Upon termination or relocation, 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 Easement. 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 Town'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 Town 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, waterlines, sewer lines, gas lines, telephone lines and other utilities as County may desire subject only to the right of Town to use the same for the purposes herein granted. The encroachment of the Jules Drive Extension into the County's Property 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 Jules Drive Extension shall 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 the 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 Easement. Whenever possible, the Town shall notify and coordinate with the County prior to performing any significant maintenance and repairs to avoid disruption within the County's Property. INDEMNIFICATION: 2 The Town shall, to the fullest extent permitted by law, indemnify and hold harmless the County and any of its officers, agents and employees against any losses, claims, damages or liabilities for which the 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 the Town hereunder; and the Town shall reimburse the County for any and all legal and other expenses incurred by the 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 be specifically enforceable by the parties against one another. The County and Town agree that this Agreement maybe 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 the 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 responsible for the recovery if its costs and fees, including reasonable attorney's fees. The Town's obligations for restoration, repair, and indemnification shall survive termination of this Agreement and the Encroachment Easement. 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 the County and Town. Nothing herein expressed or implied is intended or should be construed to confer or give to any person or entity other than the County or Town 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 the County and Town. This Agreement represents the full and complete understanding of the County and Town and supersedes any prior agreements, discussions, negotiations, representations or understandings of the County and Town 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 and this Agreement may not be assigned without the written permission of the non-assigning party. This Encroachment Easement is granted subject to prior grants of easements and other ownership interests of record. The County makes no warranties as to the title of the easement conveyed. IN WITNESS WHEREOF, COUNTY and TOWN have executed this Encroachment Easement Agreement this ~~day of ~u~~ , 2008. ATTEST: 04 ~`'~ BY: K Clerk to the Board of Coun Commissioners ~os~'~ BY: ~~Q~YI.~J Clerk to the Town Board of Trustees COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIO E B~ .--~ Peter F. Runyon, Chairman TOWN OF GYPSUM, STATE OF COLORADO, by and through its BOARD OF TRUSTEES Stephen M. Carver, Mayor G:\bryan\Airport\encroacbment easement agreement ~ ~ '.~~~ z .~~~°~ run