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HomeMy WebLinkAboutC13-103 Lake Creek Metropolitan District Encorachment Easement ENCROACHMENT EASEMENT AGREEMENT BETWEEN EAGLE COUNTY AND LAKE CREEK METROPOLITAN DISTRICT THIS AGREEMENT (hereinafter "Agreement") N L 4 , 2013 by and between Eagle County, Colorado ( "County ") and Lake Creek Metropolitan District ( "District ") WITNESSETH: WHEREAS, District maintains an existing partially piped secondary irrigation ditch (the "Creamery Lateral ") extending off of the existing Creamery Ditch that carries water to four separate privately owned properties; and WHEREAS, District wishes to extend the piping, a 6" HDPE Pipe (the "Pipe"), in part by burying in the County Right of Way (the "ROW ") that extends across the front of the lot at 2012 East Lake Creek Road, aka the Finlay\Denison Property, Parcel 2105 - 181 -02 -017 and 016, as depicted on Attachment A hereto; and 'WHEREAS, District has requested that County grant to it an encroachment easement in the above - described ROW for burial therein of the Pipe; and WHEREAS, County, believing that the Pipe is in the interests of its citizens, is willing to enter into such an encroachment agreement for burial of the Pipe in the ROW on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the following promises. County and District agree as follows: ENCROACHMENT EASEMENT GRANT: County hereby grants and conveys to District, its successors and assigns, a non - exclusive easement for the purposes of burying the Pipe in the ROW as shown on Attachment A hereto incorporated herein by this reference. The Encroachment Easement granted herein shall be an interest in real property owned by the District for the common use and enjoyment of the affected properties encompassed with the District. The Encroachment Easement granted in this Agreement shall be possessed and enjoyed by District, its successors and assigns, so long as the Encroachment Easement shall be used and maintained by District in accordance with the terms and conditions of this Agreement. In the event that District 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 180 day written notice by County. OA 7 (O 7 Upon such termination, District agrees to remove the Pipe and restore the ROW to its original condition, or as close thereto as possible. The District agrees to re -grade and re- vegetate the disturbed area within such easement following installation of the pipe therein. If District shall fail to timely remove the pipe and restore the Encroachment Easement upon notice, County may do so at District's expense. The Encroachment Easement granted by this agreement 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 Encroachment Easement herein granted, provided that they do not unreasonably interfere with Easement Easement herein. County reserves the right to use and enjoy the premises to the fullest possible extent without unreasonable interference with the exercise by District 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 Eagle County may . desire subject only to the right of District to use the same for the purposes herein granted. The encroachment of the Pipe into the ROW shall not constitute any relinquishment of County's property rights whether through claims of adverse possession or any other means. CONSTRUCTION AND MAINTENANCE OF ENCROACHMENT EASMENT: Construction, including replacement or significant alterations, and maintenance of the pipe will be the sole responsibility of District. 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 ROW to repair any damage they may cause to the ROW and /or the Pipe as part of the permitting process. District agrees to be responsible for all ongoing necessary repair and maintenance associated with the current and any future use of the Encroachment Easement. INDEMNIFICATION: The District 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 District hereunder; and District shall reimburse 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. 2 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 District, and shall be specifically enforceable by County against District, its successors and assigns. District's obligations for restoration, repair, and indemnification shall survive termination of this Agreement. County and District 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 District 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 District, 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 District and their respective successors and assigns, any right, remedy or claim under or by reason hereof of 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 District. This Agreement represents the full and complete understanding of County and District and supersedes any prior agreements, discussions, negotiations, representations or understandings of County and District 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. 3 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, COUNTY and ISTR ICT have executed this Encroachment Easement Agreement this day of 1 , 2013. ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and (°1 � through its BOARD OF e l COUNTY COMMISS 1 NERS I, BY I 4 BY: f ■ Clerk to the Board of County Jon S . : y, Chai n- Commissioners LAKE CREEK ■∎ , ETROPOLITAN DISTRICT / BY: Alle&4 i/ _A fOr TITLE: 0 A i4 A/7-- 7y i STATE OF WO radio ) SS. COUNTY OF ) /! Th foregoin instrument was acknowledged before me by J / , 4 , this ./ day of / / a/ , 2013. My commission expires: 0/92Pke athscy, ) L - ' State of Colorado Notary Pu c 1 Notary ID 114401$242 1 tiny Commission Expires Sap 11, 2016 4 T it A . ,..' :., 'Lit', M ' ' ., . �`, , West Lake Creek Road r ati,° a___ . 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