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HomeMy WebLinkAboutC19-015 Dierking Properties LLCEagle County, CO Regina O'Brien Pgs: 5 REC: $0.00 DOC: $0.00 201900758 01/16/2019 03:58:03 PM ENCROACHMENT EASEMENT AGREEMENT BETWEEN EAGLE COUNTY AND DIERKING PROPERTIES LLC THIS ENCROACHMENT AGREEMENT (hereinafter "Encroachment Agreement" or "Agreement") made as of this day of JAA/v-f/Z-/ , 2019 between Eagle County, Colorado ("County") and Dierking Properties LLC, a Colorado limited liability company (hereinafter "Owner"). WITNESSETH: WHEREAS, Owner holds title to a parcel of land known as Eagle -Vail Filing 2, Block 4, Lot 67, 1332 Deer Boulevard in the EagleVail Community in Eagle County, which property is identified as Parcel No. 2105-124-01-018, Account No. R014169 (the "Subject Property"); and WHEREAS, two driveways, connecting pavement, driveway heat strips, drainage culverts, and an associated retaining wall for the Subject Property encroach, in part, on a portion of the County's Right - of -Way for Deer Boulevard; and WHEREAS, Owner began construction of a duplex on the Subject Property in 2016 and desires to obtain from the County an Encroachment Easement to keep the existing driveways, connecting pavement, driveway heat strips, drainage culverts, and an associated retaining wall (collectively the "Driveway Encroachments") within the County Right -of -Way on a portion of Deer Boulevard in the locations identified on Exhibit A, which is attached hereto and incorporated herein by this reference; and WHEREAS, County is willing to allow the Driveway Encroachments 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" or the "Easement")) in the location identified in Exhibit A for purposes of the Driveway Encroachments. Said Driveway Encroachments shall not interfere with the flow of traffic and any County operations on the roadway.. The Encroachment Easement shall not be used for any other purpose except as described herein. The Easement granted in this Agreement shall be enjoyed by Owner, its successors and assigns, so long as the 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 Driveway Encroachments 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 Easement and to require Owner, its successor or assigns, to remove or reduce the Driveway Encroachments at Owner, its successor or assign's sole expense upon ninety (90) days written notice by County. In the event that Owner, its successor or assign ceases to use the Encroachment Easement in accordance with the terms of this C19-015 Agreement or otherwise fails to comply with any and all of the terms of this Agreement, this Agreement and Encroachment Easement may be terminated upon ten (10) days written notice by County, in its sole discretion. Upon notice of termination of the Encroachment Easement by County, the Driveway Encroachments shall be removed and/or relocated at Owner, its successor or assign's sole expense, and the easement area restored to its original condition, or as close thereto as possible. If the Driveway Encroachments are not timely removed 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 successor or assign's expense, which expense shall be promptly reimbursed by Owner, its successor or assign, 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, snow storage piles, 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 Driveway Encroachments 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 DRIVEWAY ENCROACHMENTS WITHIN THE EASEMENT: Construction, including replacement or significant alterations, repair and maintenance of the Driveway Encroachments will be the sole responsibility of Owner. 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 Driveway Encroachments as part of the permitting process. Notwithstanding the foregoing, Owner shall be solely responsible for the repair, maintenance and replacement of the driveway heat strips located within the Encroachment Easement area set forth on Exhibit A, and Owner shall release and hold County harmless from any claims concerning damage to the driveway heat strips, including any damage that may be caused by snowplows or other County operations within the Deer Boulevard Right -of -Way. 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 and the Encroachment Easement, or are based upon any performance or nonperformance by Owner hereunder; 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 Eagle 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. 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 —i'9'1�,v1�P. , 20AA. ATTEST: a� 4 By: �� w%l�l * COLOIL Clerk to the Board of County 06 STATE OF COUNTY OF Theeffooreg of 7\anv4 COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS 4 By: lrt�u , Chair Jeanht M'QW,e my d� OWNER By. Y ierking Properties, LLC ) ) SS. instrument was acknowledged before me by Rj D;e(6,"z , this day A , 2019 as (Dtole r of Dierking Properties, LLC. y Co iss' n xpires: 014 O g JOHNNY NAVARRO Not 1C NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20164013812 MY COMMISSION EXPIRES APPIL 8, 2020 day of RENS ONS Exhibit A -Encroachment Area 1.112 h M) DEER BOULEVARD =? JON DIERKING