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HomeMy WebLinkAboutC10-295 Moritz Encroachment Easement Agreement ENCROACHMENT EASEMENT AGREEMENT T IS REEMENT (hereinafter "Agreement ") is made and entered into this `7 day of , 2010 by and between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners (hereinafter "Eagle County ") and Misha R. Moritz and Kaia Borgen Moritz (hereinafter "Property Owners ") WITNESSETH: WHEREAS, the Property Owners own property at 140 Pinto Lane, Lot 45, Block 5, Berry Creek Ranch, Filing 4 in Eagle County, Colorado (hereinafter "Subject Property"); and, WHEREAS, the Property Owners wish to construct an address monument boulder as shown in Exhibit "A" attached hereto and incorporated herein by this reference (hereinafter "Improvements ") on Eagle County Road Right -of -Way (Right -of -Way); and, WHEREAS, Eagle County is willing to allow the Improvements to be located in the Right -of- Way pursuant to the terms and conditions of this Agreement; and, NOW, THEREFORE, in consideration of the terms and covenants stated herein, the sufficiency of which is hereby acknowledged, Eagle County and the Property Owners 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 the Property Owners, their successors and assigns, a non- exclusive easement for the Improvements within the Eagle County Right -of -Way at a location shown on Exhibit "A" (hereinafter "Encroachment Easement "). The Encroachment Easement granted in this agreement shall be possessed and enjoyed by the Property Owner, their successors and assigns, so long as the Encroachment Easement shall be used by the Property Owner in accordance with the terms and conditions of this Agreement. In the event that the Property Owner 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 the foregoing paragraph, Eagle County, in its sole reasonable discretion, reserves the right to terminate this Agreement and the Encroachment Easement and to require the Property Owner to remove and/or relocate the Improvements at the Property Owner's sole expense upon notice by Eagle County. Upon termination or relocation, the Property Owner agrees to restore the easement to its original condition, or as close thereto as possible. The Property Owner agrees to re -grade and re- vegetate the disturbed area within the easement. If the Property Owner shall fail to timely remove the Improvements and restore the Encroachment Easement upon notice, Eagle County may do so at the Property Owner's expense. 1 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 interfere with the Property Owner'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 the Property Owner 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 the Property Owner to use the same for the purposes herein granted. The encroachment of the Improvements into the County's 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: Construction, including replacement or significant alterations, and maintenance of the Improvements will be the sole responsibility and expense of the Property Owner. No construction shall be commenced until approved in writing by Eagle County, such approval not to be unreasonably withheld or delayed. The Property Owner 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 Property Owner shall notify and coordinate with Eagle County prior to performing any maintenance to avoid disruption within the County's Right -of -Way. INDEMNIFICATION: The Property Owner 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 Easement, or are based upon any performance or nonperformance by the Property Owner hereunder; and the Property Owner 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 the Property Owner, his successors and assigns, including but not limited to any future Property Owner of the Subject Property. 2 The Property Owner's obligations for restoration, repair, and indemnification shall survive termination of this Agreement and the Encroachment Easement. r this Agreement le County and the Property Owner agree that t s Bement ma be enforced for specific g ty e Prt3' �' �' may P 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 Property Owner 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 Eagle, Colorado. This Agreement and the rights and obligations created hereby shall be binding upon and inure to the benefit of Eagle County and the Property Owner 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 Property Owner 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. 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 the Property Owner. This Agreement represents the full and complete understanding of Eagle County and the Property Owner and supersedes any prior agreements, discussions, negotiations, representations or understandings of Eagle County and the Property Owner 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. 3 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 ASSOCIA ION have executed this Encroachment Easement Agreement this day of , 2010. ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS r ow \� Y: JL BY: - „' Clerk to the Board of County 6 M .. Sara J. Fi, Chairman Commissioners NESTE REVOCABLE TRUST BY: 4 /7/ 111111 - - Mi a R. tz BY: , Aim Kaia : or: -n Moritz STATE OF ( /O7 G ) ) SS. COUNTY OF j-e_P ) The foregoing instrument was acknowledged before me by �A SA Q a , this / Lo d ay of �() , 2010. / a ¢� My commission expires: ( /)e_ r_ 5 Z.7 �2 JACQUELINE N PIROG Notary Public ► ..� Public State of Colorado My Cornet n F * pima tieeeFtribet 06, 2012 4 (EXHIBIT A) .... a i Z • T 6. S S 2 1 gb! , 2 g , . $ww ' '4 . gi . ,, 0'. 144 t 1 01-1 6 g E . E . . 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