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HomeMy WebLinkAboutC20-036 CMH HomesEagle County, CO 202001106 DocuSign Envelope ID: 4E53D09A-6E59-4140-AD24-FEEFFD1B2133A Regina O'Brien 01/22/2020 Pgs: 12 11:53:49 AM REC: $0.00 DOC: $0.00 ENCROACHMENT EASEMENT AGREEMENT BETWEEN EAGLE COUNTY AND CMH HOMES, INC. THIS ENCROACHMENT AGREEMENT (hereinafter "Encroachment Agreement" or "Agreement") made as of 1/21/2020 g ) _,between Eagle County, Colorado ("County") and CMH Homes, Inc (hereinafter "Owner"). WITNESSETH: WHEREAS, Owner holds title to a parcel of land known as Refiling of Lots 25 Through 29 of Aspen Mesa Estates First Filing, Lot 10, 2455 Upper Cattle Creek Drive in Eagle County, which property is identified as Parcel No. 2391-271-04-004, Account No. R031115 (the "Subject Property"); and WHEREAS, Owner desires to access the Subject Property from Upper Cattle Creek Drive via a shared driveway, which will be extended to the Subject Parcel. The shared driveway and the extension of such driveway encroach -on a portion of the County's Right -of -Way for Upper Cattle Creek Drive ("County Right -of -Way') in the location identified on Exhibit A, attached hereto and incorporated herein by this reference (the "Driveway Encroachments"); and WHEREAS, Owner has entered into a Shared Driveway Use and Maintenance Agreement with the owners of the real property known as 2197 Upper Cattle Creek Road and the Aspen Mesa Home Owners Association for shared use and maintenance of the shared driveway accessing Upper Cattle Creek Drive. A copy\ of the Use and Maintenance Agreement is attached hereto as Exhibit B; 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: 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 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 Upper Cattle Creek Drive. 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 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 DocuSign Envelope ID: 4E53D09A-6E59-4140-AD24-FEEFFD1132133A 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. Notwithstanding the foregoing, in the event that Owner, its successor or assign 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 Driveway Encroachments shall be removed and/or relocated at Owner, its successors or assign's sole expense within the timeframe established by County, 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. 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 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 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 shall be the sole responsibility of Owner. No construction shall be connnenced 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 any Eagle County Right -Of -Way permit. 202001106 DocuSign Envelope ID: 4E53D09A-6E59-4140-AD24-FEEFFD1B2B3A Notwithstanding the foregoing, County will require any utility company or other persons permitted to constrict 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 Encroachments 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 Encroachments, including any damage that may be caused by snowplows or other County operations within the Upper Cattle Creek Drive 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 I Easement. Whenever possible, Owner 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: 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. 3 202001106 DocuSign Envelope ID: 4E53D09A-6E59-4140-AD24-FEEFFD1B2B3A 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. 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. ยง 24-10-101 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 4 202001106 DocuSign Envelope ID: 4E53D09A-6E59-4140-AD24-FEEFFD1132133A EXHIBIT A 7 202001106 DocuSign Envelope ID: 4E53D09A-6E59-4140-AD24-FEEFFD1 132133A EXHIBIT B 202001106 Engle County, CO 201915303 Regina O'Brien 09/1812019 Pgs: 3 12:50:04 PM REC: $23.00 DOC: $0.00 SHARED DRIVEWAY USE AND MAINTENANCE AGREEMENT This Shared Driveway Use and Maintenance Agreement ("Agreement") is entered between Rachel and Keith Brisson (the "Brissons"), Aspen Mesa Estates HOA ("HOA") and Janet and David Boyle (the "Boyles") (each a ."Party" or collectively "Parties") and effective the date last signed below. RECITALS A. The Brissons own, or about to acquire title to, the real property located at street address 2455 Upper Cattle Creek Road, Carbondale, Colorado 81623, also known as Lot 10, Aspen Mesa Estates as depicted on the final plat recorded with the Eagle County Clerk and Recorder as Reception No. 110936 (the "Brisson Property"); B. Aspen Mesa Estates owns the real property described as Tract B, Aspen Mesa Estates (the "HOA Property"); C. The Boyles own the real property located at 2197 Upper Cattle Creek Road, Carbondale, CO 81323, also known as Lot 4, Aspen Mesa Estates .("Boyle Property"). D. A common driveway located within the Eagle County Right of Way (the "ROW') provides access to the Brisson Property, the Boyle Property,, and the HOA Property as generally depicted on Exhibit 1 (the "Shared Driveway"). E. The Parties are executing this Agreement to delineate the scope of their respective rights and responsibilities regarding the shared driveway. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Use of County Right of Way. The Parties agree that the Shared Driveway is located within the ROW and that no Party has a need or use of a private access easement over the property of the other Parties. Nothing herein shall be deemed to grant any rights to Eagle County nor preclude any Party from seeking to have the County bear all costs associated with roads within the ROW. 2. Maintenance Activity Not to Disrupt Access. Neither Party may conduct any activity that results in temporary or permanent prevention of any form of access using the Shared Driveway without the other Parties' advance consent. No Party may withhold consent to a requested, temporary obstruction of access for maintenance, repair, or replacement of the Shared Driveway's surface if the requesting Party certifies, in its request, that such obstruction will be (i) conducted during specified periods that are outside the affected Party's periods of heavy use; 202001106 and (ii) managed in such manner that vehicular access for any and all vehicles owned by the other Party is never prevented for more than one (1) hour at a time. The Party conducting maintenance shall be responsible to obtain any necessary permits or approvals from Eagle County, if applicable. 3. Snow Removal. Boyles( Lot 4) will continue to maintain and plow their drive out to Cattle Creek Road, as always. The Brissons (Lot 10) may upgrade and maintain and plow their drive through the ROW access to their property as they see fit. If the HOA and/or their water managers need access to the water buildings after a snow and the ROW is not already plowed, the HOA will pay for the plowing needed for their access to Tract B, as always. Obviously, neither parlys' plowing should be done in such a way that it would interfere with another parties access. If this should happen, a simple conversation between respectful and responsible neighbors will resolve the issue. 4. Obligation for Cost of Maintenance. (a) Normal Wear and Tear. The Brisson (Lot 10) may upgrade and maintain their drive through the ROW access to their property as they see fit (b) Repair of Damage Beyond Normal Wear and Tear. Notwithstanding anything else in this Agreement to the contrary, if any Party causes damage in excess of normal wear and tear from ordinary usage to the driveway surface, the Party causing the damage shall, at its sole cost, restore the driveway surface to at least as good condition as it existed prior to such damage. 7. Entire Agreement. This Agreement sets forth the entire agreement of the Parties relating to its subject matter and replaces all prior, related agreements, discussions, negotiations, licenses, or prescriptive rights. 201915363 202001106 HOA Date a7 VZ) Lot 4 Date 1,ot10 Date Q /6 /9 202