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HomeMy WebLinkAboutC11-367 Miller Ranch POA Encroachment Easement Agreement ENCROACHMENT EASEMENT AGREEMENT TH AGREEMENT (hereinafter "Agreement ") is made and entered into this day of 2 0 , , 2011 by and between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners (hereinafter "Eagle County ") and the Miller Ranch Property Owners Association, acting by and through its Board of Directors (hereinafter "Miller Ranch "). WITNESSETH: WHEREAS, Eagle County owns the road and other right -of -ways at the intersections of Miller Ranch Road and Flat Top / Tames Creek roads in the SE 1 /4 of Section 4, T 5 S, R 82 W of the 6 Principal Meridian in Eagle County (hereinafter "Subject Property ") as shown on the attached Exhibit "A"; and WHEREAS, Miller Ranch has installed landscaping and wishes to install a new monument as defined by the final monument plan attached hereto as Exhibit "B" and incorporated herein by this reference (the "Plans ") on the Subject Property; and WHEREAS, Miller Ranch is proposing to maintain all landscaping, irrigation, lighting, monument signing and any other appurtenant elements (Landscaping Improvements); and WHEREAS, Eagle County is willing to allow location of the Landscape 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 Miller Ranch agree as follows: ENCROACHMENT EASEMENT GRANT: Eagle County hereby grants and conveys to Miller Ranch, their successors and assigns, a non- exclusive easement for the purposes of 1) Location of existing Landscape Improvements within the Subject Property 2) construction of the Miller Ranch Entry Monument within the Subject Property as shown on the Plans; and 3) the ongoing maintenance and repair of all Landscape Improvements located within the Subject Property. The Encroachment Easement granted in this agreement shall be possessed and enjoyed by Miller Ranch, their successors and assigns, so long as the Encroachment Easement shall be used by Miller Ranch in accordance with the terms and conditions of this Agreement. In the event that Miller Ranch 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 discretion, reserves the right to terminate this Agreement and the Encroachment Easement and require Miller Ranch to I II - 3(/1 remove and /or relocate the Landscape Improvements at Miller Ranch's sole expense upon notice by Eagle County, which right will not be capriciously exercised. Upon notice of termination requiring removal or relocation, Miller Ranch agrees to restore the easement to its original condition, or as close thereto as possible. Even if this Encroachment Easement Agreement is not terminated, Eagle County, in its sole discretion, may require Miller Ranch to relocate or remove any portion of the Landscape Improvements that Eagle County deems a maintenance or safety concern. If Miller Ranch shall fail to timely relocate or remove the Landscape Improvements and restore the Encroachment Easement upon Eagle County's request, Eagle County may do so at Miller Ranch's expense. 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 Miller Ranch'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 Miller Ranch 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 Miller Ranch to use the same for the purposes herein granted. The encroachment of the Landscape Improvements into Eagle County's Road Right -of -Way 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 Landscape Improvements will be the sole responsibility and expense of Miller Ranch. Construction of the Miller Ranch Entry Monument and any future improvements, including replacement or significant alterations, shall be performed pursuant to site specific construction plans, and no construction shall be commenced until such plans and specifications have been approved in writing by Eagle County, such approval not to be unreasonably withheld or delayed. Miller Ranch agrees to be responsible for all ongoing repair and maintenance costs associated with the Landscape Improvements and the Encroachment Easement. Whenever possible, Miller Ranch shall notify and coordinate with Eagle County prior to performing any significant repair or maintenance so as to avoid disruption within Eagle County's Road Right -of -Way. INDEMNIFICATION: Miller Ranch 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 2 indirectly, this Agreement and the Encroachment Easement, or are based upon any performance or nonperformance by Miller Ranch hereunder; and Miller Ranch 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 Miller Ranch, their successors and assigns. Miller Ranch's obligations for restoration, maintenance, repair, and indemnification shall survive termination of this Agreement and the Encroachment Easement. Eagle County and Miller Ranch 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 executing this Agreement both Eagle County and the Miller Ranch 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 Miller Ranch 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 Miller Ranch and their respective successors and assigns, any right, remedy or claim under 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 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 Miller Ranch. This Agreement represents the full and complete understanding of Eagle County and Miller Ranch and supersedes any prior agreements, discussions, negotiations, representations or understandings of Eagle County and Miller Ranch with respect to the subject matter contained herein. 3 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 easement conveyed. IN WITNESS WHEREOF, EAGLE COUNJY and MILL RANCH have executed this Encroachment Easement Agreement this ' day of ; /eC-ix --7 , 2011. ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF 0 COUNTY COMMI. SI l NERS: w lor BY: �� * Y: Clerk to the Board of ounty %o vney, Chairman Commissioners MILLE ' RANCH PROPERTY OWNERS = SOCIATION, by and thro its BOA' 1 . DIRECTORS: BY: /�� 41(i Cv l v /rt) I I TITLE: �5� C t I - • {^ STATE OF ) ) SS. COUNTY OF ' . �`� C The foregoing instrument was acknowledged before me by .'g fia _ this (s day of _A E ovcmh 2C , 2011. My commission expires: 1, /(21C) J�'' tar Not. Public 4 Miller Ranch Entry Encroachment Easement . i EXHIBIT "B" E. . - 0 g • 4 1 i 0 R t I 1 1........ g ... . ,„. .-- ,r,,, ,, 4 , ' 4 -;:,-. 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