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HomeMy WebLinkAboutC21-376 Encroach Frying PanDocuSign Envelope ID: 51 B7F9F4-409A-4F66-A1 BD-A5933B2BDFE5 ENCROACHMENT EASEMENT AGREEMENT BETWEEN EAGLE COUNTY AND FRYING PAN RENDEZVOUS, LLC THIS ENCROACHMENT AGREEMENT (hereinafter "Agreement") is made as of this day of 11/9/2021 2021 between Eagle County, Colorado (hereinafter "County") and FRYING PAN RENDEZVOUS, LLC, a Colorado limited liability company (hereinafter "Owner"). WITNESSETH: WHEREAS, Owner holds title to a parcel of land known as 3006 Frying Pan Road, Basalt, CO 81621 in Eagle County, as recorded at Reception Number 201916289 in the office of the Eagle County Clerk and Recorder., which property is identified as Parcel No. 246710200004, Account No. R026820, (the "Subject Property"); and WHEREAS, County maintains that it has a right-of-way easement ("Right -of -Way") on the Subject Property pursuant to a deed recorded on Page 379 of Book 85 on the Eagle County Records maintained in the office of the Eagle County Clerk and Recorder; and WHEREAS, Owner desires to install a driveway, various utilities, landscaping, and an on -site wastewater treatment system that will encroach, in part, on a portion of the County's Right -of - Way; and WHEREAS, Owner desires to obtain from the County an encroachment easement to allow a driveway, utilities, landscaping, and an on -site wastewater treatment system (collectively, the "Encroachment") for the Subject Property to be constructed on and remain on a portion of the County Right -of -Way in the location identified on Exhibit A, which is attached hereto and incorporated herein by this reference; and WHEREAS, County is willing to grant an easement to allow the Encroachment to remain 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: The County hereby grants to Owner and its heirs, successors, and assigns, a non-exclusive, revocable easement on and over a portion of the County's Right -of -Way for the Encroachment in its current location as described in Exhibit A attached hereto (the `Encroachment Easement"). Owner shall not use the Encroachment Easement for any other purpose except as described herein. Owner may use, maintain, and repair the Encroachment located within the Encroachment Easement as detailed below in the Construction and Maintenance section. DocuSign Envelope ID: 51 B7F9F4-409A-4F66-A1 BD-A5933B2BDFE5 The Encroachment Easement granted by this Agreement shall be enjoyed by Owner, its successors and assigns, so long as the Encroachment Easement is used in accordance with the terms and conditions of this Agreement. This Agreement shall not be construed as conferring any rights or benefits on any third parties. Notwithstanding anything herein to the contrary, the 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 Encroachment at Owner s or its successors or assigns' sole expense upon one hundred eighty (180) days written notice by County. In the event the County requires removal of the on -site wastewater treatment system allowed by this Agreement, Owner acknowledges relocation and potential re -design of the on -site wastewater treatment system is feasible within the "Possible Alternative OWTS Location" identified in Exhibit A. Owner further agrees to comply with Colorado law and County"s Land Use Regulations and Environmental Health Regulations should relocation of the on -site wastewater treatment system be necessary. Owner acknowledges any structure constructed on the property without adequate facilities for the sanitary disposal of sewage is subject to Colo. Rev. Stat. § 25-10-112, 5 CO ADC § 1002-43:43.4, and § 43.4 of the Eagle County Public Health Agency On -Site Wastewater Treatment System Regulations. In the event 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 the Encroachment Easement by County, the Encroachment shall be removed and/or relocated at Owner's, its successors or assigns' sole expense. The Encroachment Easement area shall be restored to its original condition, or as close thereto as possible. If the Encroachment is not timely removed in response to County's request and the Encroachment Easement area is not restored within the allowed time period, County may do so at Owner's, 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 to others rights -of -way over, under, across or through the Encroachment Easement herein granted and as may be permitted under applicable laws, 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 as permitted under applicable laws, 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, to the extent permitted by applicable laws, 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 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. 0J DocuSign Envelope ID: 51 B7F9F4-409A-4F66-A1 BD-A5933B2BDFE5 CONSTRUCTION AND MAINTENANCE OF ENCROACHMENT WITHIN THE EASEMENT: Construction, including repair, replacement, alterations, and maintenance of the 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 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 officers, 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 or assigns. 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. The foregoing indemnification by Owner shall not apply to, or require Owner to indemnify the County for, any losses, claims, damages, or liabilities arising from any claim, action, cause of action, judgment, demand, determination, decision or agreement that the County's use of, or rights to, the Right -of -Way, or portions thereof, is invalid, inapplicable to the Property or otherwise unenforceable. 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. DocuSign Envelope ID: 51 B7F9F4-409A-4F66-A1 BD-A5933B2BDFE5 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 County, 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. 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 the event the Right of Way, or portions thereof, is declared invalid, inapplicable to the Property or otherwise unenforceable, this Agreement shall terminate with respect to these portions of the Right of Way declared invalid, inapplicable to the Property or otherwise unenforceable. [Remainder of Page Intentionally Left Blank] IM DocuSign Envelope ID: 51 B7F9F4-409A-4F66-A1 BD-A5933B2BDFE5 Ota IN WITNESS WHEREOF, this Encroachment Easement Agreement is executed this _day of .2021. ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS Docf4uSigned by: BY: git.A.0-1 Vt n Clerk to the 0nty STATE OF ) ) SS. COUNTY OF ) DocuSigned by: BY: Matt Sc r lehaj1BE0473... The foregoing instrument was acknowledged before me by of , 2021. My Commission expires: Notary Public STATE OF COUNTY OF r_ ) ) SS. pitt<,K,) ) this day OWNER BY: Kenny Smith, Authorized Signatory FRYING PAN RENDEZVOUS, LLC The foregoing instrument was acknowledged before me by V_s;y dy S m 1 "+ , thisday of c0L V 2021. My Commission expires: ro It / 2 0 Z-tl KENNETH SCOTr ROBISON - NOTARY PUBLIC STATE OF COLORADO NOTARY ID 2012406G934 MY COMMISSION EXPIRES OCTOBER 12, 2024 5 DocuSign Envelope ID: 51 B7F9F4-409A-4F66-A1 BD-A5933B2BDFE5 EXHIBIT A r_ _1- _ 1- 01 A DocuSign Envelope ID: 5167F9F4-409A-4F66-A1BD-A5933B2BDFE5 < / \ /\ /_ I \ \ <\ / / \ \\ - \ � f� / I/�;, , 11 \ \ \ / Z'" f \ \ �5: \ \ �, \ " ,, - , , � ", " "' "" , I �__,_ I —/ moo. -_-_ "j l ---_-=-_ - ='�=' I � - :, .-�; ""�. , , ,:!"-:, : � :::Y, :� " 1: 1; �:: :I -, . �, \%I44\ %I '. **I* %"\*%, I —**** —I, \**, \, *, 4\ I*, *\" "\ I, ,"I. , II " —I", S*"II \,*I I",*,I. 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ROOM /----- ` / , , , , , , , I, , II, , I I 1,I \I 1",I,1,I —" ,I I1\ I \ ,1 ,, \, 1, , , I11,,—,I,,"1\ , ,"111"", I, ,,­I1I ,�— ,\"I1,1I 1 ,,,, 1,, :, 1 1, '1I\" ,1*" ,I, I", 4 � %1I ,1I\"I 1,,, ,1 1I ST STORM SYSTEM % / \ ------ ------ / ---_--\, -�,,I_-I -I ,I , -�--I\ -" , I-7 .I-_1--,I,1\ _ I - _-I-\ , _I -I -I -- --I, I-1-� - _-I 1----,-I"-- -\ -__--_ -1-I-I--II-_--I\ I-",-II--II-1I-� __--II,I,-I--\I-I.__ ---,,--\--­_- ---\\--A --I-"-I 1_I -_-_ ----_ --I�­-,11---.-,,—_,1-1_--I,-" - I \ IA _\-_ I-_ - ,� , \ \ ----- -- - ---------------- WE FISHING \ ,`�`. 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