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HomeMy WebLinkAboutC22-171 Heritage Park HOA_Encroachment Easement Agreement_Allan CircleW DocuSign Envelope ID: 890846BO-BB65-44A4-B122-EOED168A992A p N �N N co ENCROACHMENT EASEMENT AGREEMENT N v o BETWEEN EAGLE COUNTY AND c HERITAGE PARK HOMEOWNERS ASSOCIATION O THIS ENCROACHMENT AGREEMENT (hereinafter "Agreement") is made as of v 4/26/2022 , between Eagle County, Colorado ("County") and Heritage m o 0 Park Homeowners Association (hereinafter "HOA"). v O ova ro u� WITNESSETH: W Vp III Xa.fyn WHEREAS, County is the fee owner of real property described as the Allen Circle Right -of -Way ("Subject Property"); and WHEREAS, HOA desires to remove the existing asphalt surface and place pavers on the Property and such pavers will encroach, in part, on a portion of the County's Right -of -Way for Allen Circle; and WHEREAS, HOA desires to obtain from the County an encroachment easement to allow the pavers ("Encroachment") for the Subject Property to be constructed on and remain on a portion of the County Right -of -Way for Allen Circle 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 HOA agree as follows: ENCROACHMENT EASEMENT GRANT: The County hereby grants to HOA and its heirs, successors, and assigns, a non-exclusive, revocable easement on and over a portion of the County's Right -of -Way for Allen Circle for the Encroachment in its current location as described in Exhibit A attached hereto (the "Encroachment Easement"). HOA shall not use the Encroachment Easement for any other purpose except as described herein. HOA may use, maintain and repair the Encroachment located within the Encroachment Easement, as detailed below in the Construction and Maintenance section. The Encroachment Easement granted by this Agreement shall be enjoyed by HOA and 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, 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 HOA, its successors or assigns, to remove or reduce the Encroachment at HOA's, its successors or assigns,' sole expense upon ninety (90) days written notice by County. In the event HOA, or its successors or assigns, ceases to use the Encroachment Easement in accordance with the terms of this Page 1 DocuSign Envelope ID: 990846B4-BB65-44A4-B122-EOE0168A992A 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 HOA'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 HOA's, its successors or assigns' sale expense, which expense shall be promptly reimbursed by HOA 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, provided that they do not interfere with the right of HOA 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 HOA 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 HOA 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 with respect to the Right -of -Way. CONSTRUCTION AND MAINTENANCE OF ENCROACHMENT WITHIN THE EASEMENT: Construction, including repair, replacement, alterations, and maintenance of the Encroachment will be the sole responsibility of HOA 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. HOA agrees to be responsible for all ongoing necessary repair and maintenance associated with the current and any future use of the Encroachment Easement. INDEMNIFICATION: HOA 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 HOA hereunder or its successors or assigns; and HOA 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 Page 2 DocuSign Envelope ID: 890846B6-BS65-44A4-B122-EOED168A992A 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 HOA, its successors and assigns and all obligations for restoration, repair, and indemnification shall survive termination of this Agreement and the Encroachment Easement. County and HOA 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 HOA 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 HOA 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 HOA and their respective successors and assigns, any right, remedy, or claim under or by reason hereof or 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 HOA. This Agreement represents the full and complete understanding of County and HOA and supersedes any prior agreements, discussions, negotiations, representations, or understandings of County and HOA 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. Page 3 DocuSign Envelope ID: 890846BO-BB65-44A4-B122-EOED168A992A 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 4/26/2022 ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS DocuSlgned by: BY: '�' " 0-tvit,tn. Clerk to the oar a County STATE OF COUNTY OF &101-1W,A DocuSigned by: BY: Jeanne McQueeney, Chair HOA BY: Kyle Kozloff, Her' ag a OA President ) SS. Th egoin ins rument was acknowledged before me by , this /( A- day of , 2022. 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