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Home My WebLink AboutC12-389 Terrace Ridge at Homestead Association Encroachment Easement Agreement BOULDERS ENCROACHMENT EASEMENT AGREEMENT BETWEEN EAGLE COUNTY AND TERRACE RIDGE AT HOMESTEAD ASS INC. THIS AGREEMENT (hereinafter "Agreement ") dated , 2012 by and between Eagle County, Colorado ( "County ") and Terrace Ridge at Homestead Association, Inc., a Colorado non -profit organization ( "Association ") WITNESSETH: WHEREAS, Association is the association of homeowners and manager of that portion of the Homestead Subdivision known as Terrace Ridge abutting in part on a section of Edwards Village Boulevard (the `Boulevard Section "); and WHEREAS, County has a road right -of -way for the Boulevard Section; and WHEREAS, Association wishes to obtain from the County an encroachment easement to allow placement of boulders (the `Boulders Encroachment ") within the County right -of -way on a portion of the Boulevard Section in a location identified on Exhibit "A," which is attached hereto and incorporated herein by this reference. The Boulders Encroachment proposed by the Association is intended to reduce or eliminate unauthorized and hazardous public parking in such County right -of -way; and WHEREAS, County is willing to grant Association an easement to allow placement of the boulders in the Boulder Encroachment on County's right -of -way pursuant to the terms and conditions of this Agreement for such purpose. NOW, THEREFORE, in consideration of the forgoing premises and following promises, County and Association agree as follows: ENCROACHMENT EASEMENT GRANT: County hereby grants and conveys to Association, its successors and assigns, a non - exclusive easement (the "Easement ") for the purposes of the Boulders Encroachment. The Easement shall be possessed and enjoyed by Association, its successors and assigns, so long as the Easement shall be used by Association in accordance with the terms and conditions of this Agreement. Notwithstanding anything herein to the contrary, County, in its sole reasonable discretion, reserves the right to terminate this Agreement as it relates to all or a portion of the Encroachment Easement and to require Association to remove or reduce the Boulders Encroachment at Association's sole expense upon ninety (90) days written notice by County. Upon termination, Association agrees to restore the area of the Boulders Encroachment affected by the termination to its original condition, or as close thereto as possible. If Association shall fail to timely remove 019\ -.t the boulders and restore the right -of -way within the Easement within the allowed time period, County may do so at Association's expense. The Easement is 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 Easement herein granted, provided that they do not unreasonably interfere with Association's use of the Easement as authorized herein. County reserves the right to use and enjoy the Easement to the fullest possible extent without unreasonable interference with the exercise by Association 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 Association to use the same for the purposes herein granted. The encroachment of the Boulders Improvements into County's rights -of -way, as described herein, shall not constitute any relinquishment of County's property rights whether through claims of adverse possession or any other means. CONSTRUCTION AND MAINTENANCE OF BOULDERS ENCROACHMENT WITHIN THE EASEMENT: Construction, including replacement or significant alterations, and maintenance of the Boulders Encroachment will be the sole responsibility of Association. No construction shall be commenced until approved in writing by County, such approval not to be unreasonably withheld or delayed. Notwithstanding the foregoing, County will require any utility company or other persons permitted to construct in the County right -of -way to repair any damage they may cause to County right -of -way and/or the Boulders Encroachment as part of the permitting process. Association agrees to be responsible for all ongoing necessary repair and maintenance associated with the current and any future use of the Easement. INDEMNIFICATION: The Association 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, the performance or nonperformance by Association hereunder; and Association 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 County Clerk and Recorder's Office and shall constitute covenants running with the Boulevard Section, as a burden thereon, for the benefit of, and shall be specifically enforceable by County against Association, its successors and assigns, including but not limited to any future Association abutting on the Boulevard Section. 2 The Association's obligations for restoration, repair, and indemnification shall survive termination of the Easement. County and Association 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 County and the Association 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 to 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 Association 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 Association 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 County both Coun and Association. This Agreement represents the full and complete understanding of Eagle County and Association and supersedes any prior agreements, discussions, negotiations, representations or understandings of County and Association 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 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, COUNTY and ASSOCIATIO have executed this Boulders Encroachment Easement Agreement this - day of 1/L- , 2012. Die tAi&it v ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and � �, ro through its BOARD OF p ° 6 COUNTY COMM i • •� / 7Z/di/dr/. BY: 401.0 cQ rv B Y' Clerk to the Boar County Peter . Runyon Commissioners i Dikdf TERRACE RIDGE AT HOMESTEAD ASSOCIATION BY LL�Jz TITLE: (''T 0 1 4 . 0 - - o_f GCE n 0(16. STATE OF A COUNTY OF l L e The f r oing ins ent was acknowledged before me by 5 ' t' ` 1 L tday of �'�`D�n 7 V , 2012. My commission expir- 7c ( oc 7 - * ******* Notary Public i� � . f , �kg I t fit j:•. 3 '�' OF' CO '- My Comm. Exp. 05- 20-2015 4 . 3 . ) 1 P 4 . _ itw t y' 1 s .. I _s ., ■ I 1 S s ?. ,.` Al . Idlj 4, r. M A � .. k i 1 "it li ..l y t Lu i w : I I v .. ; o cc h- Lt.1 at t j f , i -....1 / • V el EXHIBIT ltr i 9 �