HomeMy WebLinkAboutC19-395 Whiskey Hill Condo AssociationDocuSign Envelope ID: 0801E588-4273-4107-B574-8DEACFE6F7E8 Eagle County, CO Regina O'Brien Pgs: 8 REC: $0.00 DOC: $0.00 ENCROACHMENT EASEMENT AGREEMENT 201920174 11/26/2019 08:59:46 AM THIS ENCROACHMENT EASEMENT AGREEMENT (hereinafter "Encroachment Agreement" or "Agreement") made as of this 11120 12019 , between Eagle County, Colorado, a body corporate and politic (the "County") and the Whiskey Hill Condominium Association (the "Association"). WITNESSETH: WHEREAS, the Association holds title to a parcel of land known as Lot 35 except the easterly 4.84 feet of the Whiskey Hill Subdivision and has an address of 596 Daisy Lane in unincorporated Eagle County (the "Association Property"); and WHEREAS, Association desires to access the Association Property from the County's Right- of-Way at Eagle Drive via a driveway (the "Driveway"). The Driveway and the retaining wall of supporting the Driveway encroach on a portion of the County's Right-of-Way for Eagle Drive and Daisy Lane ("County Right-of-Way") in the location identified on Exhibit A; and as shown in signed, detailed, and stamped engineered plans at Exhibit B and Exhibit C, all as attached hereto and incorporated herein by this reference (the "Encroachments"); and WHEREAS, County is willing to allow the Encroachments in the location identified in Exhibit A, and as shown in Exhibits Band C, subject to the terms of this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and following promises, County and Association agree as follows: ENCROACHMENT EASEMENT GRANT For the consideration and mutual agreements of the parties set forth herein, the sufficiency of which is hereby acknowledged, County hereby grants and conveys to Association a non- exclusive revocable easement (the "Encroachment Easement" or the "Easement") in the location identified in Exhibit A for purposes of the Encroachments. The Encroachments must not interfere with the flow of traffic and any County operations on Eagle Drive or Daisy Lane. 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 Association, or its successors and assigns, so long as the Easement is 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 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 the Association or its successors or assigns, to remove or reduce the Encroachments at Association's or its successors or assigns' sole expense upon ninety (90) days written notice by County. DocuSign Envelope ID: 0801E588-4273-4107-B574-8DEACFE6F7E8 Notwithstanding the foregoing, in the event that Association or 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 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 Encroachments shall be removed or relocated at Association's or its successors or assigns' sole expense within the timeframe established by County, and the Easement area restored to a safe, stable, and revegetated condition. If the 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 Association's or its successors or assigns' expense, which expense shall be promptly reimbursed by Association or its successors or assigns. 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 the right of Association 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 Association 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 Association to use the same for the purposes herein granted. The Driveway Retaining Wall 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 RETAINING WALL ENCROACHMENTS WITHIN THE EASEMENT Construction, including replacement or significant alterations, repair and maintenance of the Driveway Retaining Wall Encroachments shall 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. All construction shall be conducted in accordance with the Eagle County Land Use Regulations, and Eagle County right-of-way permit ROW - 017781-2019 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 Encroachments as part of the permitting process. Notwithstanding the foregoing, Association shall be solely responsible for the repair, maintenance and replacement of the Encroachments within the Encroachment Easement area set 2 DocuSign Envelope ID: 0801E588-4273-4107-B574-BDEACFE6F7E8 forth on Exhibit A, and Association shall release and hold County harmless from any claims concerning damage to the Encroachments, including any damage that may be caused by snowplows or other County operations within the Eagle Drive and Daisy Lane Right-of-Way. Association agrees to be responsible for all ongoing necessary repair and maintenance associated with the current and any future use of the Encroachment Easement. Whenever possible, Association shall notify and coordinate with Eagle County prior to performing any maintenance, repair or replacement of the Driveway Encroachments to avoid disruption within the County's Right-of-Way. INDEMNIFICATION Association 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 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 Eagle County Clerk and Recorder's Office. This Agreement shall constitute covenants running with the Subject Property and the Association Property, as a burden thereon and for the benefit thereof, and shall specifically be enforceable by County against the Association, or its successors and assigns, and all obligations for restoration, repair, and indemnification shall survive termination of this Agreement and the Encroachment 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 County and Association each 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. 3 DocuSign Envelope ID: 0801E588-4273-4107-B574-8DEACFE6F7E8 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 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 County 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. 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. The parties hereto understand and agree that County is relying on, and does not waive or intend to waive by any provision of this Agreement the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act et seq., C.R.S. § 24-10-10 l et seq. as from time to time amended, or any other rights, protections, immunities, defenses or limitations on liability provided by law or any applicable provisions of the Colorado Constitution and other applicable laws or otherwise available to County, its subsidiary, associated and/or affiliated entities, successors, or assigns; or its elected officials, employees, and agents. [Signature Page to Follow] 4 DocuSign Envelope ID: 0801 E588-4273-4107-B574-BDEACFE6F7EB IN~~ WHEREOF, this Encroachment Easement Agreement is executed this 4 l day of ..ll.I.Jrtt;2 ~c , 2019. ATTEST: STATE OF ) ) ss. COUNTY OF ) COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS By: w=~ J eann e.QHemw.)'7,.. Chair WHISKEY HILL CONDOMINIUM ASSOCATION By:~<~- Title: S) C y-e --~i \ The foregoing instrument was acknowledged before me by::,be ., ~ G (\.~~day of NOV 2019by ~~lf-.:, Car~ lA.~ s,.e.'-~':> -.:Jf-"-=>k•)W.c.c., ""°' 1 l l O l]-'·{ l 2.. 022 (.,,c,-r,"-o AssvJ s TINA VIGIL NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20104017888 MY COMMISSION EXPIRES 10/24/20 DocuSign Envelope ID: 0801E588-4273-4107-8574-8DEACFE6F7E8 . -:.~ . ,_ ~.-.. \ \ \ -- • i I I DocuSign Envelope ID : 0801ESBB-4273-4107-B57 4-8DEACFE6F7E8 ~ oavH010::, '..U.Nno::> 3:1~V3: ~J~ .· ' 't:.!c'!.~J,~ ~':'#.-;.: i -➔ ~ o.:6=• =~ ·~·•~6-'\& & .,. I en~ ~,•ilN'f'J. ,,,g., . S11VM. DNINIVJ.mI 11IH A.3::>ISIH.M. u11-~ i . 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