HomeMy WebLinkAboutC23-288 Encroachment Agreement_Frying Pan Rendezvous R026820DocuSign Envelope ID: A0973A42-93C4-4469-97B9-8ED5E88F7CBC
ENCROACHMENT EASEMENT AGREEMENT
BETWEEN EAGLE COUNTY AND
FRYING PAN RENDEZVOUS, LLC.
THIS ENCROACHMENT AGREEMENT (hereinafter "Agreement") is made as of
9/26/2023 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 gate and appurtenant electric utilities that will
encroach on a portion of the County's Right -of -Way; and
WHEREAS, Owner desires to obtain from the County an encroachment easement to allow the
driveway gate and appurtenant electric utilities (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.
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
Eagle County, CO 202313229
Regina O'Brien 09/28/2023
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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 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, 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, 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.
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.
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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 County for any losses, claims, damages, or liabilities arising from any
claim, action, cause of action, judgment, demand, determination, decisions, or agreement that the
County's use of, or rights to, the Right -of -Way, or portions thereof, is invalid, inapplicable to the
Subject 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.
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
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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 those
portions of the Right of Way declared invalid, inapplicable to the Property, or otherwise
unenforceable.
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DocuSign Envelope ID: A0973A42-93C4-4469-97B9-8ED5E88F7CBC
IN WITNESS WHEREOF, this Encroachment Easement Agreement is executed this 18 day
of 5 lewler 2023.
ATTEST: COUNTY OF EAGLE, STATE OF
COLORADO, by and through its BOARD OF
COUNTY COMMISSIONERS
BY: 4LDocuSlgnetl by:
D-1115pitAn.
Clerk to the Board of County
STATE OF
COUNTY OF
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DocuSlgneerd by::�.
BY: �I�ALY'—(k"
Kathy C an er- enry, Chair
OWNER
BY: k'
Kenny Smifh,Authorized Signatory
FRYING PAN RENDEZVOUS, LLC
The foregoing instrument was acknowledged before me by lrjr ay srwi ig- , this %day
of <COTr7++atu2 12023.
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