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HomeMy WebLinkAboutC17-058 Dantas and Schwaiger Encroachment AgreementBRIDGE ENCROACHMENT EASEMENT AGREEMENT BETWEEN EAGLE COUNTY AND MICHAEL DANTAS and JACOB SCHWAIGER THIS ENCROACHMENT AGREEMENT (hereinafter "Encroachment Agreement" or "Agreement") made as of this ZI Sf day of �, 2017 between Eagle County, Colorado ("County") and Michael Dantas and Jakob Schwaiger (collectively hereinafter "Owner"). WITNESSETH: WHEREAS, Owner holds title to a parcel of land known as Lot 6 of the Final Plat and Resubdivision of Lot 13, Block 10, Vail Intermountain Development Subdivision as recorded at Reception Number 393044 in the office of the Eagle County Clerk and Recorder, which property is identified as Parcel No. 2103-154-04-035, Account No. R029456 (the "Subject Property"); and WHEREAS, Owner intends to construct a driveway with associated bridge abutments and desires to obtain from the County an encroachment easement to allow construction of the bridge abutment (the "Bridge Encroachment") within the County Right -of -Way on a portion of Basingdale Boulevard in the location identified on Exhibit A, which is attached hereto and incorporated herein by this reference; and WHEREAS, County is willing to allow the Bridge Encroachment in the location identified in Exhibit A, subject to the terms of this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and following promises, County and Owner agree as follows: ENCROACHMENT EASEMENT GRANT: County hereby grants and conveys to Owner a non-exclusive, revocable easement (the "Encroachment Easement") in the location identified in Exhibit A for purposes of the Bridge Encroachment. The Encroachment Easement shall not be used for parking, storage or for any other purpose except as described herein. The Encroachment Easement granted in this Agreement shall be enjoyed by Owner, its successors and assigns, so long as the Encroachment Easement shall be used in accordance with the terms and conditions of this Agreement. This Easement Agreement shall not be construed as conferring any rights or benefits on any third parties and is granted for the sole purpose of allowing the Bridge Encroachment associated with the access driveway to be constructed in the location shown on Exhibit A. Notwithstanding anything herein to the contrary, County, in its sole discretion, reserves the right to terminate this Agreement as it relates to all or a portion of the Encroachment Easement and to require Owner, its successors or assigns, to remove or reduce the Bridge Encroachment at Owner, its successors or assigns' sole expense upon ninety (90) days written notice by County. In the event that Owner, its successors or assigns ceases to use the Encroachment Easement in accordance with the terms of this Agreement or otherwise fails to comply with any and all of the terms of this Agreement, this Agreement and the Encroachment Easement may be terminated upon ten (10) days written notice by County, in its sole discretion. Upon notice of termination of C17-058 the Encroachment Easement by County, the Bridge Encroachment shall be removed and/or relocated at Owner, its successors or assigns' sole expense, and the Easement area restored to its original condition, or as close thereto as possible. If the Bridge Encroachment is not removed in a timely manner in response to Eagle County's request and the Easement area is not restored within the allowed time period, County may do so at Owner, its successors or assigns' sole expense, which expense shall be promptly reimbursed by Owner, its successors or assigns, on penalty of placement of a lien on the Subject Property to assure payment of such 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 interfere with the right of Owner to use the same for the purposes herein granted. County reserves the right to use and enjoy the premises to the fullest possible extent without unreasonable interference with the exercise by Owner 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 County may desire subject only to the right of Owner to use the same for the purposes herein granted. The Bridge Encroachment into the County's Right -of -Way shall not constitute any relinquishment of the County's property rights whether through claims of adverse possession or any other means. CONSTRUCTION AND MAINTENANCE OF BRIDGE ENCROACHMENT WITHIN THE EASEMENT: Construction, including repair, replacement or alterations, and maintenance of the Bridge Encroachment will be the sole responsibility of Owner or its successors and assigns. 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 Bridge Encroachment as part of the permitting process. Owner agrees to be responsible for all ongoing necessary repair and maintenance associated with the current and any future use of the Encroachment Easement. INDEMNIFICATION: Owner shall, to the fullest extent permitted by law, indemnify and hold harmless County and any of its offices, 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, this Agreement or the Encroachment Easement, or are based upon any performance or nonperformance by Owner hereunder or its successors and assigns; and Owner 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 Eagle County Clerk and Recorder's Office. This Agreement shall constitute covenants running with the Subject Property, as a burden thereon and for the benefit thereof, and shall specifically be enforceable by County against Owner, its successors and assigns and all obligations for restoration, repair, and indemnification shall survive termination of this Agreement and the Encroachment Easement. County and Owner 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 Owner commit themselves to perform pursuant to these terms contained herein. 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 Owner 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 Owner 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 Owner. This Agreement represents the full and complete understanding of County and Owner and supersedes any prior agreements, discussions, negotiations, representations or understandings of County and Owner 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 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, this Encroachment Easement Agreement is executed this Z day of -j t,6 Kia-Ae-`-1 , 2017. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS fO� o � w t�� Attest: 0 DOI0%N By gina O'Brien Chief Deputy Clerk to the Board STATE OF e01aucL COUNTY OF 1W I ( ' -�/ I , C Jillian H. R an, Chair OWNER By: � U k - Michael R. Dantas ) SS. The foregoing instrument was acknowledged before me by Michael R. Dantas, this��rday of r t , 2017. My Commission expires: q -5. G I SHEILA V AGUiLERA NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20144034763 Notary Public COMMISSION EXPIRES SEP. 05, 2018 4 STATE OF C—OL)Yj Cio ) SS. COUNTY OF T—O-K� R,— --lea iiWvre14—,1 akob Schwaiger The foregoing instrument was acknowledged before me by Jakob Schwaiger, this 2 da Y of JQ(-kX1 , 2017. 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