HomeMy WebLinkAboutC11-098 Mountainview Developers Encroachment Easement Agreement ENCROACHMENT EASEMENT AGREEMENT
THIS ENCROACHMENT EASEMENT AGREEMENT (hereinafter "Agreement ") is made
and entered into this 31 day of March, 2011 by and between Eagle County, Colorado, a body
corporate and politic, by and through its Board of County Commissioners (hereinafter "Eagle
County ") and Mountainview Developers, LLC, a Colorado limited liability company (hereinafter
"Owner ").
WITNESSETH:
WHEREAS, Owner owns certain residential real properties located at 3007 Basingdale
Boulevard and 3009 Basingdale Boulevard in Eagle County, Colorado, which are legally
described as follows: LOTS 3A AND 3B, FINAL PLAT, VAIL INTERMOUNTAIN
DEVELOPMENT SUBDIVISION, A RESUBDIVISION OF LOT 3, BLOCK 10, THE
BASINGDALE HOMES, ACCORDING TO THE PLAT RECORDED OCTOBER 3, 2007
UNDER RECEPTION NO. 200726443, COUNTY OF EAGLE, STATE OF COLORADO
(hereinafter "Benefited Property "); and
WHEREAS, Eagle County owns the road and other rights -of -way for Basingdale Boulevard in
Eagle County, Colorado (hereinafter "Subject Property "), which are adjacent to the Benefited
Property; and
WHEREAS, the Owner has constructed under building permits RES -7 -08 -1821 and RES -7 -08-
1822 and wishes to maintain a wall within the Subject Property that functions as a bridge
abutment for the driveway connecting the Benefited Property to the roadway on the Subject
Property (hereinafter "Driveway Improvements "); and
WHEREAS, the Owner is proposing to use and maintain the Driveway Improvements in a
portion of Subject Property (the "Easement Area "), as defined by the legal description attached
hereto as Exhibit "A" and incorporated herein by this reference; and
WHEREAS, Eagle County is willing to allow Owner's use and maintenance of the Driveway
Improvements on the Subject Property, 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 the Owner agree as follows:
ENCROACHMENT EASEMENT GRANT:
Eagle County hereby grants and conveys to and for the benefit of the Owner, its successors and
assigns, and their Permittees, a non - exclusive easement in, to, over, through, upon under and
across the Easement Area for and the right to (1) construct, replace, remove, maintain or modify
Driveway Improvements, (2) for ingress to and egress from the Benefited Property; (3) for the
passage and accommodation of all vehicles, bicycles and pedestrians to the Benefited Property;
(4) for the flow of surface water in, to, over, through, upon, under and across the Easement Area;
together with a non - exclusive easement in, to, over, through, upon under and across the Subject
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Property adjacent to the Easement Area, as may be reasonably necessary from time to time for
the construction, repair, maintenance and replacement of the Driveway Improvements located in
the Easement Area (collectively, the "Encroachment Easement "). For purposes of this
Agreement, "Permittees" shall mean and refer to any tenants, subtenants, licensees, successors,
assigns, agents, occupants, employees, contractors, invitees, lenders, customers and visitors of
the Owner, its successors and assigns (including but not limited to emergency vehicles) and the
holder of any real property or easement rights relating to the Benefited Property.
The Encroachment Easement granted in this Agreement shall be possessed and enjoyed by the
Owner, its successors and assigns, and its Permittees so long as the Encroachment Easement
shall be used by the Owner in accordance with the terms and conditions of this Agreement. In
the event that the 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 prior, written notice by Eagle County.
Notwithstanding the foregoing paragraph, Eagle County, in its discretion, reserves the right to
terminate this Agreement and the Encroachment Easement and require the Owner to remove
and /or relocate the Driveway Improvements at the Owner's sole expense upon prior, written
notice by Eagle County, which right will not be capriciously exercised. Upon notice of
termination requiring removal or relocation, the Owner agrees to restore the Easement Area to its
original condition, or as close thereto as possible. The Owner agrees to re -grade and re- vegetate
the disturbed area within the Easement Area. If the Owner shall fail to timely remove or relocate
the Driveway Improvements and restore the Easement Area upon such notice, Eagle County may
do so at the Owner's expense.
Even if this Encroachment Easement Agreement is not terminated, Eagle County, in its
discretion, may require the Owner to relocate or remove any portion of the Driveway
Improvements that Eagle County deems a maintenance or safety concern, which right will not be
capriciously exercised. If the Owner shall fail to timely relocate or remove the Driveway
Improvements and restore the Easement Area upon Eagle County's prior, written request, Eagle
County may do so at the Owner's expense.
Provided, however, Eagle. County exercises its right to terminate this Agreement and the
Encroachment Easement and /or require the Owner to relocate or remove any portion of the
Driveway Improvements, then the Owner shall have at least thirty (30) calendar days after the
Owner receives written notice from Eagle County to perform such work, or within such
additional time as is reasonably required to effectuate such work, provided that the process
within a longer time is commenced within thirty (30) calendar days after the written notice is
given by Eagle County, and provided that such work is completed as soon as reasonably
practicable.
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 the Owner's Easement Area herein. Eagle County reserves the right to use and
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enjoy the premises to the fullest possible extent without unreasonable interference with the
exercise by The 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
Owner to use the same for the purposes herein granted.
Except for the Encroachment Easement granted by this Agreement, the encroachment of the
Driveway Improvements into Eagle County's Subject Property 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 IMPROVEMENTS:
All construction, including replacement or significant alterations, and maintenance of the
Driveway Improvements will be the sole responsibility and expense of the Owner. No
construction shall be commenced until approved in writing by Eagle County; such approval not
to be unreasonably withheld or delayed.
The Owner agrees to be responsible for all ongoing repair and maintenance costs associated with
the Driveway Improvements. Whenever possible, the Owner shall notify and coordinate with
Eagle County prior to performing any significant repair or maintenance so as to avoid disruption
within Eagle County's Subject Property.
INDEMNIFICATION:
The 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 Owner hereunder; and the 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 specifically enforceable by Eagle County against the Owner, its
successors and assigns.
The Owner's obligations for restoration, maintenance, repair, and indemnification shall survive
termination of this Agreement and the Encroachment Easement.
Eagle County and the Owner 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
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executing this Agreement both Eagle County and the 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 responsible 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
County, Colorado.
This Agreement and the rights and obligations created hereby shall be binding upon and inure to
the benefit of Eagle County and the 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 the Owner and their respective successors and assigns, any
right, remedy or claim under or by reason of any covenant or condition herein contained.
The benefits and burdens of this Agreement and the Encroachment Easement created hereunder
shall run with the land and be appurtenant thereto (including any parcels into which the
Benefited Property may be subdivided), with the effect that any person or entity which acquires
an interest in the Benefited Property or any portion thereof shall be entitled to such benefits and
bound by such burdens. In the event any party shall convey its fee interest in all or a portion of
the Benefited Property, said party shall automatically be freed and relieved, from and after the
date of such transfer or conveyance, of all liability as respects the performance of any agreement
or obligation on the part of the party contained in this Agreement thereafter to be performed with
respect to such Benefited Property or the portion thereof conveyed, except for payment of any
obligation incurred prior to the transfer or conveyance. It is intended hereby that the agreements
and obligations contained in this Agreement on the part of each of the parties shall be binding
upon such parties only during the period of its ownership of its respective Benefited Property or
any portion thereof and that the conveying party shall remain liable only for its breach of an
obligation hereunder which occurred prior to the date of conveyance. Any grantee of a fee
interest in the Benefited Property, Subject Property, or any portion thereof shall automatically be
deemed to have assumed the obligations of the party hereunder that is its predecessor in title.
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 provisions 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 Owner. This
Agreement represents the full and complete understanding of Eagle County and the Owner and
supersedes any prior agreements, discussions, negotiations, representations or understandings of
Eagle County and the Owner with respect to the subject matter contained herein.
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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 Encroachment
Easement conveyed.
IN WITNESS WHEREOF, EAGLE COUNTY and THE OWNER have executed this
Encroachment Easement Agreement this 31 day of March, 2011.
ATTEST: COUNTY OF EAGLE, STATE
OF COLORADO, by and
through its BOARD OF
o f stack# COUNTY COMMISS • NERS:
IC),j :II' / A
BY s * Y : / C. 1111M
Clerk to the Board of ounty Nt00,00 .Jb N Stavney —111
Commissioners t 1 i
Peter F. Runyon
Commissioner
c -- ) Sara J. Fisher
Commissioner
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUE ON FOLLOWING PAGE}
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MOUNTAINVIEW DEVELOPERS,
LLC, a Colorado limited liability company
BY: fwd% t 0,64,44)
Name: Walter T. Bishop
Title: Sole Member and Manager
STATE OF
)
) SS..
COUNTY OF
The egoing instrument was acknowledged before me by f C4-\ -ei4` 2g day
of �'�� , 2011 by Walter T. Bishop, as the Sole Member and Manager of
Mountainview Developers, LLC, a Colorado limited liability company.
My commission expires: 3 p 1/ 1
Notary ublic
DEBRA HARLAND
NOTARY PUBLIC
STATE OF COLORADO
MY COMMISSION EXPIRES 32012
•
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CONSENT OF BENEFICIARY
The undersigned, holder, as beneficiary, of those two Deeds of Trust (collectively, the
"Deeds of Trust," as modified) made by Mountainview Developers, LLC, a Colorado limited
liability company, encumbering, inter alia, the Benefited Property and the improvements
thereon, which first Construction Deed of Trust was recorded in the real property records of
Eagle County, Colorado on December 26, 2007, under Reception No. 200733475, and was re-
recorded on March 17, 2008 under Reception No. 200805616, as modified by those two
Modification Agreements, recorded on February 3, 2010 under Reception No. 201002139, and
recorded on February 19, 2010 under Reception No. 201003291, and which second Deed of
Trust was recorded on May 20, 2010, under Reception No. 201009601, hereby consents to the
foregoing Encroachment Easement Agreement (the "Easement "), and the easement created
thereby, and agrees and acknowledges that the lien of the Deeds of Trust are subordinate to the
Easement, and that. any foreclosure, enforcement or other remedy available to the undersigned
under the Deeds of Trust or other related collateral documents shall not void or otherwise impair
the validity of the Easement, the easements created thereby, or the covenant running with the
land described therein.
EXECUTED as of the date set forth in the acknowledgement below.
COLORADO CAPITAL BANK
By:
Name: Sean Sjodin
Title: Credit Administration Officer
STATE OF COLORADO )
ss.
COUNTY OF A cly )
The foregoing Consent was acknowledged before me this rZ day of !W (;k, ,
2011 by Sean Sjodin, Credit Administration Officer of Colorado Capital Bank.
Witness my hand and official s My commission expires: seal. ai l
sAR,,,,//f catAce,tA6k,,,,cucD-
v Vic, r . ® Notary Public
1z2 6-20i i
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• " NGINEERING
Civil Engineers & Surveyors
WALL ENCROACHMENT EASEMENT
LEGAL DESCRIPTION
A Parcel of land Located in the right-of-way of Basingdale Boulevard adjacent to Lots 3A
and 3B of the Resubdivision of Lot 3, Block 10, Vail Intermountain Development
Subdivision as recorded at Reception No. 200723345 in the Office of the Cleric and
Recorder of Eagle County, Colorado and being more particularly described as follows:
Commencing at the southeast corner of said lot 3A coincident with the north right -of -way
line of Basingdale Boulevard:
Thence S67 °41'31 "W a distance of 42.19 feet along said north right -of -way line of
Basingdale Boulevard to the True Point of Beginning;
Thence S24 °00'54 "E a distance of 10.77 feet to a point;
Thence S65°59'06"W a distance of 4.83 feet to a point;
Thence N24 °00'54 "W a distance of 6.33 feet to a point;
Thence S65 °59'06 "W a distance of 65.29 feet to a point;
Thence S24 °00'54 "E a distance of 6.33 feet to a point;
Thence S65 ° 59'06" W a distance of 4.83 feet to a point;
Thence N24 °00'54 "W a distance of 13.01 feet to a point on said north right -of -way line
of Basingdale Boulevard;
Thence N67 °41'31 "E a distance of 74.99 feet along said north - right -of -way line of
Basingdale Boulevard to the True Point of Beginning;
Said parcel of land cont ; '; lOscit 0 (0.011 acres), more or less.
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Inter- Mountain Engine#4i ne ' " " " " " . ..
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Vail Valley Office ‘ ‘‘ AND p.�a,��`-_
DENVER OFFICE _
6551 S. Revere Pkwy., Suite 165 1 Centennial, CO 80111 I Phone: 303.948.8220 I Fax: 303.948.6526
VAIL VALLEY OFFICE
40801 U.S. Highway 6, Suite 203 1 PO Box 978 l Avon, CO 81620 1 Phone: 970.949.5072 j Fax: 970.949.9339
EXHIBIT
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LOTS 3A AND 3B, BLOCK 10 VENGINEER1NG
Y VAIL INTERMOUNTAIN DEVELOPMENT SUBDIVISION
Q is Civil Engineers Sc Surveyors
EAGLE COUNTY, COLORADO IOMI u9 IN/16tP, SUITS 207 WUW. ASR. M.M..0)..!ors
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