HomeMy WebLinkAboutC12-007 OPENEASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (hereinafter "Agreement") is made and entered into this
day of°Der, 2G31 -by and between Eagle County, Colorado, a body corporate and
politic, by and through its Board of County Commissioners (hereinafter 'Eagle County") and the
Frank J. Lynch Living Trust & Patricia C. Lynch Living Trust (hereinafter "Lynch").
WITNESSETH:
WHEREAS, Eagle County owns the property described as the West Half of the Northeast
Quarter, the Northwest Quarter of the Southeast Quarter and Northeast Quarter of the Southwest
Quarter of Section 8, Township 5 South, Range 82 West of the Sixth Principal Meridian, County
of Eagle, State of Colorado (hereinafter "Parcel U); and
WHEREAS, Lynch owns Lot 7, Creamery Ranch Subdivision, Eagle County, Colorado
(hereinafter "Lynch Property"); and
WHEREAS, the Parcel L is adjacent to the Lynch Property; and
WHEREAS, Eagle County obtained a survey of Parcel L prepared by Archibeque Land
Consulting, Ltd. dated April 21, 2011, and further identified as job number 11111 ("Survey") to
identify Parcel L; and
WHEREAS, Lynch relies upon the Final Plat Creamery Ranch, a resubdivision of Creamery
Gulch Ranch, Eagle County, Colorado dated April 19, 1994, and recorded at reception 534030
("Final Plat") to identify the Lynch Property; and
WHEREAS, Eagle County believes the Survey accurately identifies the boundary between
Parcel L and the Lynch Property and Lynch believes the Final Plat accurately identifies said
boundary; and
WHEREAS, notwithstanding the foregoing, the parties agree to rely upon the Survey to
accurately identify the boundary between Parcel L and the Lynch Property; and
WHEREAS, Lynch has made certain improvements which encroach on a portion of Parcel L;
and Lynch desires to maintain these improvements and to have the ability to expand the
improvements or increase the number or type of improvements in the future as set forth herein;
and
WHEREAS, Eagle County has agreed to grant Lynch an exclusive, perpetual and irrevocable
easement for the existing improvements which encroach on a portion of Parcel L, and has further
agreed that Lynch may expand and/or increase the number or type of improvements within the
easement, pursuant to the terms and conditions of this Agreement.
EASEMENT GRANT:
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and in further consideration of the terms and covenants stated
herein, Eagle County and Lynch agree as follows:
1. Lynch shall pay to Eagle County the sum of $11,500.00 in good funds upon execution
of this Agreement as consideration for the grant of an easement as set forth herein.
2. Eagle County hereby grants and conveys to Lynch, its heirs, successors and assigns
forever, an exclusive, perpetual and irrevocable easement in, to and over a portion Parcel L, as
described in Exhibit A, attached hereto and incorporated herein by reference (the "Easement"),
to serve the Lynch Property. The purpose of the Easement shall be for the use and enjoyment of
the improvements which currently encroach on a portion of Parcel L (the "Encroachments"), and
which are located within the Easement identified on Exhibit A; for the installation of and the use
and enjoyment of New Encroachments, as defined below, if any; and for the maintenance, repair
and replacement of the Encroachments and the New Encroachments, if any, located within the
Easement. The Easement shall be deemed an easement appurtenant to the Lynch Property.
Eagle County agrees that Lynch may expand the existing Encroachments, and/or may increase
the number or type of encroachments (collectively "New Encroachments") so long as the New
Encroachments are located within the Easement. Eagle County agrees that it shall not obstruct,
impede or interfere in the reasonable use of the Easement granted herein for the purposes
described herein.
3. Except with respect to the granting of this Easement, neither the Encroachments
nor the New Encroachments, if any, on Parcel L shall constitute any relinquishment of Eagle
County's property rights whether through claims of adverse possession or any other means.
4. The installation, repair, replacement and maintenance of the Encroachments and
the New Encroachments, if any, will be the sole responsibility and expense of Lynch. The
installation, repair, replacement and maintenance of the Encroachments and the New
Encroachments, if any, shall occur within the Easement identified on Exhibit A. In the event
Lynch encroaches beyond the Easement and onto Parcel L, then Eagle County may provide
written notice to Lynch who shall promptly remove any such encroachments and restore Parcel L
to its condition immediately prior to such encroachments at its sole cost and expense. In the
event Lynch fails to so restore Parcel L as set forth above, then Eagle County may remove such
encroachments and restore Parcel L to its condition immediately prior to such encroachments
and require reimbursement from Lynch for the actual cost of such restoration. Lynch shall
promptly pay for the same.
5. All work associated with the installation, repair, replacement and maintenance of
the Encroachments, and the New Encroachments, if any, shall be performed in accordance with
all applicable laws and regulations and Lynch shall be solely responsible for obtaining any
required permits or approvals.
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6. Lynch 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
indirectly, this Agreement and the Easement, or are based upon any performance or
nonperformance by Lynch hereunder; and Lynch shall reimburse Eagle County for any and all
reasonable legal fees and other expenses actually incurred by Eagle County in connection with
investigating or defending any such loss, claim, damage, liability or action. Upon any transfer of
the Lynch Property, the seller of such property shall have no further liability for claims first
arising subsequent to the date of such transfer.
7. This Agreement shall be specifically enforceable by Eagle County against Lynch,
and its heirs, successors and assigns.
8. Eagle County and Lynch agree that this Agreement may be enforced by 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 Lynch 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 recovery of its costs and fees, including reasonable
attorney's fees.
9. 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.
10. This Easement Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, successors and assigns forever and the benefits and
burdens hereof shall constitute covenants running with title to the Lynch Property and Parcel L,
respectively. 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 Lynch and their respective heirs,
successors and assigns, any right, remedy or claim under or by reason of any covenant or
condition herein contained.
11. 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.
12. This Agreement may be amended, modified or changed only by written
agreement duly authorized and executed by both Eagle County and Lynch and recorded with the
Clerk and Recorder of Eagle County. This Agreement represents the full and complete
understanding of Eagle County and Lynch and supersedes any prior agreements, discussions,
negotiations, representations or understandings of Eagle County and Lynch with respect to the
subject matter contained herein.
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13. 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.
14. This Easement is granted subject to prior grants of easements and other ownership
interests of record. Eagle County represents that it is the record owner of the property upon
which the Easement is located and that it has full power and authority to execute this Agreement.
Otherwise, Eagle County makes no warranties as to the title of the easement conveyed.
15. Whenever it is desirable or necessary for either party to serve notice or demand
upon the other, such notice, demand or communication shall be given by personal service or
certified mail, return receipt requested with first class postage prepaid thereon, and unless sooner
received shall be deemed to have been received three (3) days after the date of certification. The
addresses of the parties hereto are as follows:
Lynch: Mr. Frank J. Lynch
P.O. Box 2176
Edwards, CO 81632
With a copy to: Otto Porterfield & Ayres, LLC
P.O. Box 3149
Vail, CO 81658
County: Board of Eagle County Commissioners
500 Broadway
Post Office Box 850
Eagle, CO 81631
With a copy to: Eagle County Attorney
500 Broadway
Post Office Box 850
Eagle, CO 81631
or at such other places either party may from time to time designate in writing.
16. Upon execution by the parties, this Easement Agreement shall be recorded in the
real property records maintained by the Eagle County Clerk and Recorder.
4
IN WITNESS WHEREOF, Eagle County and Lynch have executed this
Easement Agreement this /(day of Heeenrbet; zA1�.
ATTEST:
BY: � i
Clerk to the Board of County
Commissioners
STATE OF COLORADO )
) SS.
COUNTY OF EAGLE )
The foregoing instrument was
?-" S --Vt7F of the Frank J
of 2011.
7271ivar�, -201oZ
COUNTY OF EAGLE, STATE
OF COLORADO, by and
through its BOARD OF
COUNTY COMMISSIONERS:
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�,.. BYQ
: �
FRANK J. LYNCH LIVING TRUST &
PATRICIA C. LYNCH LIVING TRUST
By a�4; . /�--
Its:
acknowledged before me by FR -A -N l= t -y'4 C-11 , as
Lynch Living Trust & Patricia C. Lynch Living Trust this 13 day
My commission expires: (� • � 3. 15—
PAY 5—
PAY
i
104061 �
EXHIBIT _
SHEET 'I OF 'I
LEGAL DESCRIPTION
A Parcel of land being a portion of the Northeast Quarter (NE 1/4), of the Southwest
Quarter (SW 1/4) of Section 8, Township 5 South, Range 82 West of the Sixth Principal
Meridian, according to the Dependent Resurvey and Survey, Sheet 1 of 3, of said
Township and Range, approved September 7,1977, Comity of Eagle, State of
Colorado, being more particularly described as follows:
Beginning at the Center West 1/16 Corner of Section 8 of said Township and Range,
thence; along the north line of said NE 1/4 of the SW 1/4 of Section 8, S87027'07"E
(Basis of Bearing) , 276.21" feet; thence leaving said north line, S24°38'58"W, 106.96
feet; thence S88°43'29"E, 232.92 feet to the west line of said NE 1/4 of the SW 1/4 of
Section 8, thence along said west line, N00°5016"E, 104.32 feet to said Point of
Beginning.
Containing 0.593 Acres more or less.
NW 114
SECTION 8
CENTER WEST 1/16 SEC. 8
FOUND SURVEY MONUMENT
1.5" ALUMINUM CAP NORTH LINE NE 1/4 SW 1/4
ON No. 5 REBAR SECTION 8
STAMPED LS 20695 BASIS OF BEARING /
WEST LINE
NE 1/4 SW 1/4
SECTION 8
NW 114
SW 114
SECTION 8
0 50 100
1 inch= 100 feet
CAP 111171 rc LYNCH.d,ag
NE 114
SW 114
SECTION 8
ArchibequeLandConsulting,Ltd NOTICE: Accordiogb,Ctaradolawvmmu,tcamme,ifeplactionbascdnponnnydcrecunthic
no within thaw roars u[fer em, thst discovered such d&,I. h, n" erenf. nuy any action based upon any
— Professional Land Surveying & Mapping— deface m 01io......y be commenmd more ma, ton year, trmn the dat<of cerWmatim, ,•btov. narnn�t.
Additionally, mis Improvement Locmion CenfHcate is prepared for tho sole pur,•osc of uo, be the Forties
105 Capitol Street, Suite 5-P.O. Box 3893 rtmed hcremr.n,e intproremem.:.,,,soorrlly,Eo.wd.,>�bot,•rt"nd om,� appareot I' Eible at thctfine of
Guldwodj imp.ocemeam anm
d encroachents ore noted. Arrhibnluo land Cor riting, Ltd., its ovotdr).cod
Eagle, Colorado 81631 emFlt.vee(s) will nm MEIN, for more man me mss or ms lmprorccc-t Loraeon arbrram, and wr„only
970.328.60200ffite 970.328.6021 Fax to the poales epeciftcalb•,homn hereon. ncceptailocand/or ase of Eds lmproremant Location Cenificma for
ony purpose constitrac, acknouvledgement and agreement to all terms stated herein.
