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HomeMy WebLinkAboutC12-239 Encroachment Easement Agreement ENCROACHMENT EASEMENT AGREEMENT THI GREEMENT (hereinafter "Agreement ") is made and entered into this 3 "day of , 2012 by and between Eagle County, Colorado, a body corporate and politic, by and throug its Board of County Commissioners (hereinafter "Eagle County") and Berry Creek Metropolitan District, a Colorado Special District, acting by and through its Board of Directors (hereinafter "Berry Creek "). WITNESSETH: WHEREAS, Eagle County owns the road and other right -of -ways at the intersections of Berry Creek Road / Hackamore Circle and Berry Creek Road / June Creek Road located in Section 4, T 5 S, R 82 W of the 6th Principal Meridian in Eagle County (hereinafter "Subject Property"); and WHEREAS, Berry Creek wishes to implement a phased multi -year Landscape Master Plan for the Singletree Community, which includes plans for landscaping on the Subject Property; and WHEREAS, Berry Creek completed construction of the first three phases of Landscape Improvements in 2009, 2010 and 2011; and WHEREAS, Berry Creek is proposing to construct the fourth phase of the Landscape Master Plan including landscaping and irrigation system (Landscaping Improvements), as defined by the Singletree Intersection Enhancement final plans (2 pages) attached hereto as Exhibit "A" and incorporated herein by this reference (the "Plans ") on the Subject Property ; and WHEREAS, Eagle County is willing to allow construction 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 Berry Creek agree as follows: ENCROACHMENT EASEMENT GRANT: Eagle County hereby grants and conveys to Berry Creek, their successors and assigns, a non- exclusive easement for 1) the purposes of constructing the Landscape Improvements within the Subject Property as shown on the Plans; and 2) the ongoing maintenance and repair of the those Landscape Improvements as shown in the Plans. The Encroachment Easement granted in this agreement shall be possessed and enjoyed by Berry Creek, their successors and assigns, so long as the Encroachment Easement shall be used by Berry Creek in accordance with the terms and conditions of this Agreement. In the event that Berry Creek 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. 1 Notwithstanding the foregoing paragraph, Eagle County, in its sole discretion, reserves the right to terminate this Agreement and the Encroachment Easement and require Berry Creek to remove and/or relocate the Landscape Improvements at Berry Creek's sole expense upon notice by Eagle County, which right will not be capriciously exercised. Upon notice of termination requiring removal or relocation, Berry Creek agrees to restore the easement to its original condition, or as close thereto as possible. Berry Creek agrees to re -grade and re- vegetate the disturbed area within the easement. If Berry Creek shall fail to timely remove or relocate the Landscape Improvements and restore the Encroachment Easement upon such notice, Eagle County may do so at Berry Creek's expense. Even if this Encroachment Easement Agreement is not terminated, Eagle County, in its sole discretion, may require Berry Creek to relocate or remove any portion of the Landscape Improvements that Eagle County deems a maintenance or safety concern. If Berry Creek 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 Berry Creek'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 Berry Creek'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 Berry Creek 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 Berry Creek 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 Berry Creek. All construction, including replacement or significant alterations, shall be performed pursuant to the 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. Berry Creek agrees to be responsible for all ongoing repair and maintenance costs associated with the Landscape Improvements and the Encroachment Easement. Whenever possible, Berry Creek 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: 2 Be Creek shall, to the fullest extent permitted by law, indemnify and hold harmless Eagle P Y fY le g 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 Berry Creek hereunder; and Berry Creek 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 Berry Creek, their successors and assigns. Berry Creek's obligations for restoration, maintenance, repair, and indemnification shall survive termination of this Agreement and the Encroachment Easement. Eagle County and Berry Creek 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 Berry Creek 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 Berry Creek 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 Berry Creek 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 Berry Creek. This Agreement represents the full and complete understanding of Eagle County and Berry Creek and supersedes any prior agreements, discussions, negotiations, Yp g g , 3 representations or understandings of Eagle County and Berry Creek 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. Eagle County makes no warranties as to the title of the easement conveyed. IN WITNESS WHEREOF, EAGLE COUNTY and BERRY CREEK have executed this Encroachment Easement Agreement this ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMIS I�o ' * * BY: • B ''' ;' • Peter Runyon, Chairm.. :- By Clerk to the B d of Commis I ers ►01;■1 BERRY CREEK METROPOLITAN DISTRICT, by and through its BOARD OF DIRECTORS: L BY: �e�'_ TITLE: _Chairman +l'I 1 K G - GU D T7 STATE OF COUNTY OF The foregoing instrument was acknowledged before me by (1.1. 6e , this l eco-- day of J loC , 2012. 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