No preview available
HomeMy WebLinkAboutC11-365 Mandel Encroachment Easement Agreement ENCROACHMENT EASEMENT AGREEMENT THIS ENCROACHMENT EASEMENT AGREEMENT (hereinafter "Agreement ") is made and entered into this ( day of AC`s= ,v j 2011 by and between Eagle County, Colorado by and through its Board of County Commissioners (hereinafter "County ") and Janine Mandel (hereinafter "Owner "). WITNESSETH: WHEREAS, Owner owns the property known as the Mandel Residence and located at 2216 -B Vermont Court, Vail CO 81657, WHEREAS, Property legal description Subdivision: HIGHLAND MEADOWS Lot: 28 BK- 0458 PG -0090 PTD 02- 23 -87. Parcel number: 2103 - 141 -03 -015. (hereinafter "Subject Property "). WHEREAS, Owner constructed a driveway on the subject Property that is partially on a utility and drainage easement with a width of 7 and V2 feet reserved along the northeast boundary line of the Property for the use of utility providers and for drainage WHEREAS, County is willing to allow portions of the driveway to remain in the utility and drainage easement so long as the portion of the driveway is located within the Encroachment Easements as defined below and 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, County and Owner 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 Owner, his successors and assigns, three non - exclusive easements for the purposes of maintaining a driveway within the utility and drainage easement at locations described and shown on " Exhibit A. The Encroachment Easements granted in this Agreement shall be possessed and enjoyed by Owner, his successors and assigns, so long as the Encroachment Easements shall be used by Owner in accordance with the terms and conditions of this Agreement. In the event that Owner ceases to use the Encroachment Easements 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 Easements may be terminated upon notice by County. Upon termination, or upon removal, relocation, or replacement of the driveway for any reason, Owner agrees to restore the land impacted by the Encroachment Easements to its original natural condition, or as close thereto as possible. The Owner agrees to re -grade and re- vegetate the disturbed areas within the Encroachment Easements to the satisfaction of County. If Owner shall fail to timely remove the driveway and restore the areas disturbed by the Encroachment Easements upon notice, County may do so at Owner's expense. The Encroachment Easements granted by this Agreement are 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 Owner'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 Owner 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 Owners to use the same for the purposes herein granted. The encroachment of the driveway into the utility and drainage easement shall not constitute any relinquishment of the County's rights whether through claims of adverse possession or any other means. DAMAGE AND MAINTENANCE AND REPLACEMENT In the event that damage occurs to the driveway located within the Encroachment Easements the damaged driveway must be repair or removed at Owner's expense. If Owner fails to timely remove a damaged driveway, County may do so at Owner's expense. If Owner chooses to replace the driveway, Owner shall replace the driveway along the Subject Property's property line and not on the utility and drainage easement at Owner's expense. When driveway has been replaced along the Subject Property's property lines for any purpose, and the driveway no longer exists in the utility and drainage easement, the driveway Easement shall be terminated. Owner agrees to be responsible for all damages caused by the driveway encroachment into the utility and drainage easement. Owner agrees to be responsible for all ongoing repair and maintenance costs associated with the current and any future use of the Encroachment Easements. Owner shall notify and coordinate with County prior to performing any maintenance to avoid disruption within the utility and drainage easement. INDEMNIFICATION The Owner 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 Easements, or are based upon any performance or nonperformance by Owner hereunder; and Owner 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 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 County against Owner, his successors and assigns, including but not limited to any future Owners of the Subject Property. The Owners obligations for restoration, repair, liability, and indemnification shall survive termination of this Agreement and the Encroachment Easements. County and Owner agree that this Agreement may be enforced for specific performance, injunctive, or other appropriate relieve, 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 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, Colorado. This Agreement and the rights and obligations created hereby shall be binding upon and inure to the benefit of County and 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 County or Owner 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 Owner. This Agreement represents the full and complete understanding of County and Owner and supersedes any prior agreements, discussions, negotiations, representations or understanding of County and 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. 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, the parties hereto have executed this Agreement the day and year first above written. ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS BY: ( �• -- - L' * � ._ I/ lak Clerk of the Board of T nty c o ,po Joi . vney, Chai QWNtR avAff 1--&-ceckf BY: Jilgit4.6,--(aAtoet.__., STATE OF FID ) (� ) ss. COUNTY OF 14/42/ - .;UtjX' ) • The foregoing instrument was acknowledged before me by f9/`J /N.e ,9N0 P1 this _ day of No tM/n 2011. �, My commission expires: ��' �, IRIS SOIERS104 4. :* MY COMMISSION i DD 943648 • -,,- .- EXPIRES: January 6, 2014 • Rf , Bonded Thor Notary Public Undeiveiters /�n1 a rr Notary Public / / / t / / EDGE OF VERMONT / C b 170 SF HATCHED REGION SHOWS COURT / • AREA OF ENCROACHMENT IN UTILITY w� AND DRAINAGE EASEMENT FOR „..„,//:)%\,44.44., / fil EXISTING DRIVEWAY AND ASSOCIATED / / OA •, 36 . ,BOU WALLS i F R� 3.. o / / \ . Q/ / O\ / / , �� , �, ::Ex / C 0 (c1 / pRIVEWAY�� / OF EXISTING ` '\ ir\ e � Q- L INE ` • ISTING 0 Q / BO ALL 401 , : 1 , co � , , .._... , i .. , , , e EXISTING / 1 BOULDER / .. 28 WALL \ PROPOSED ` .� RETAINING WALL @ ��� �2 / /NEW RESIDENCE ��; 29 / (>57, OQ ---------- / I 33' � �ti / / �.... N3 / I / 7 ,- ) 0 / ----- ..----- li \, PROPOSED NEW • - i / / . / `RESIDENCE / 0 4./i / / � ' / \ ° / Y / 23'- 3'@G - GE DOOR TAR SHOLD \ / /0,,N A - �� / / \ / 23 • r i / / / O A � / �6>> / / / i 7� / / / / n 1 1 1 I © 0' 5' 10' 20' 40' , US Mail Only: P. O. Box 2378 SITE PLAN Physical / Fedex: 210 Edwards MANDEL RESIDENCE EXHIBIT A B E RG Ll1 N D Village Blvd, Bldg A Suite A103 ARCH! rr ci s. L .C; Edwards, Colorado 81632 -2378 2216 VERMONT COURT A2.0A (970) 926 4301, Fax: 926 4364 (LOT 28 HIGHLANDS MEADOWS) hansc berglundarchitects.com VAIL, CO 81657 Date 11/30/11 www . berglundarchitects.com Scale 1" = 10' -0"