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Home My WebLink AboutC23-337 Encroachment Agreement_6024 Hwy 6, 81637DocuSign Envelope ID: 11 BE2672-CO87-4198-BD94-EEAFD6BODCFB Eagle County, CO 202315430 Regina O'Brien 11/14/2023 Pgs: 8 02:36:32 PM REC: $0.00 DOC: $0.00 ENCROACHMENT EASEMENT AGREEMENT BE'IVEEN EAGLE COUNTY, COLORADO AND SERGIO GONZA►LEZ GUERRA AND LOURDES HERNANDEZ GONZA►LEZ THIS ENCROACHMENT AGREEMENT (hereinafter "Agreement') is made as of this 1^4 day of 2023 between Eagle County, Colorado (hereinafter "County") and Sergio Gonzalez Guerra. and Lourdes Hernandez Gonzalez (hereinafter 'Owners'). WITNESSETH: WHEREAS, County holds title to a parcel of land known as 6024 Highway 6, Gypsum, CO 81637 in Eagle County, Colorado as recorded at Reception Number 200918491 in the office of the Eagle County Clerk and Recorder, which property is identified as Parcel No. 211303400009, (the `amuck Pond Open Space'); and WHEREAS, the Duck Pond Open Space is subject to a conservation easement held by the Eagle Valley Land Trust CEVLT") as recorded at Reception Number 201321200 in the office of the Eagle County Clerk and Recorder (the "Conservation Easement'); and WHEREAS, Section 71 of the Conservation Easement provides that County may not convey an easement encumbering the Duck Pond Open Space without EVLT's prior approval; and WHEREAS, Owners hold We to aparcel of land known as 6026 H4nva.y 6, Gypsum, CO 81637 in Eagle County, Colorado as recorded at Reception Number 201917944 in the office of the Eagle County Clerk and Recorder, which property is identified as Parcel No. 211303100002 ("6026 Highway 6'); and WHEREAS, Owners desire to maintain a portion of a concrete slab and the cover of a septic tank (collectively, the `Encroachments') that encroach on the Duck Pond Open Space in the location identified on Exhibit L which is attached hereto and incorporated herein by this reference; and WHEREAS, Owners have agreed to remove the glued concrete blocks, gravel, and all other items inside the "encroachment area" as depicted in Exhibit A; and S, County is wiling to grant an easement to allow only the Encroachments to remain in the location identified in Exhibit A. subject to the terms of this Agreement and the Conservation Easement; and WHEREAS, the "encroachment area" identified in Exhibit A shall not be used further by Owners aside from the allowed Encroachments identified herein and shall be separated from 6026 Highway 6 with a knce to be constructed by County at a future date; and WHEREAS, EVLT has granted County permission to enter into this Agreement as required by the Conservation Easement pursuant to a letter from the EVLT dated September 1, 2023, which is attached hereto and incorporated herein by this reference as Exhibit B. DocuSign Envelope ID: 11 BE2672-CO87-4198-BD94-EEAFD6BODCFB NOW, THEREFORE, in consideration of the foregoing premises and following promises, County and Owners agree as follows: ENCROACHMENT EASEMENT GRANT: County hereby grants to Owners and the heirs, successors, and assigns, a non-exclusive, revocable easement on and over a portion of the Duck Pond Open Space for the Encroachments in the current location as described in Exhibit A (the `Encroachment Easement'). Owners shall not use the Encroachment Easement for any other purpose except as described herein. Owners may use, maintain, and repair the Encroachments located within the Encroachment Easement as detailed below in the Construction and Maintenance section Owners shall remove the glued concrete blocks, gravel, and other encroachments located in the "encroachment area" identified in Exhibit A. The Encroachment Easement granted by this Agreement shall be enjoyed by Owners, their successors and their assigns so long as the Encroachment Easement is used in accordance with the terms and conditions of this Agreement and subject to the Conservation Easement. 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 Owners or their successors or assigns to remove or reduce the Encroachments at their expense upon ninety (90) days written notice by County. In the event Owners or their 'successors or assigns cease to use the Encroachment Easement in accordance with the terms of this Agreement or otherwise fall 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 Encroachments shall be removed and/or relocated at Owners' or their successors or assigns' expense. The Encroachment Easement area shall be restored to its original condition, or as close thereto as possible. If the Encroachments are not timely removed in response to County's request and the Encroachment Easement area is not restored within the allowed tare period, County may do so at Owners' or their successors or assigns' sole expense, which expense shall be promptly reimbursed by Owners or their successors or assigns on penalty of placement of a lien on 6026 Highway 6 to assure payment of such expense. The Encroachment Easement granted by this Agreement is nor -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 Owners to use the same for the purposes herein granted and subject to the Conservation Easement. County reserves the right to use and enjoy the Duck Pond Open Space to the fullest possible extent without unreasonable interference with the exercise by Owners 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 limes, waterlines, 2 DocuSign Envelope ID: 11BE2672-CO87-4198-BD94-EEAFD6BODCFB sewer lines, gas lines, telephone fines, and other utilities as County may desire subject only to the right of Owners to use the same for the purposes herein granted and subject to the Conservation Easement. The Encroachments on the Duck Pond Open Space 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 Encroachments will be the sole responsibility of Owners or their successors and assigns. No construction shall be commenced until approved in writnig by County and such approval may be withheld in County's sole discretion. not to be unreasonably withheld or delayed. Owners agree to be responsible for all ongoing necessary repair and maintenance associated with the current and any future use of the Encroachment Easement. INDEMNIFICATION: Owners shaD, 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 Owners hereunder or their successors or assigns. Owners 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 Duck Pond Open Space, as a burden thereon and for the benefit thereog and shall specif tally be enforceable by County against Owners and their successors and assigns and all obligations for restoration, repair, and indemni ica t io n shall survive termination of this Agreement and the Encroachment Easement County and Owners agree that this Agreement may be enforced for specific performance, injunctive, or other appropriate relied 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 Owners commit themselves to perform pursuant to these terms contained herein. 3 DocuSign Envelope ID: 11 BE2672-CO87-4198-BD94-EEAFD6BODCFB 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 Owners 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 Owners 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 shalt 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 Owners. This Agreement represents the full and complete understanding of County and Owners and supersedes any prior agreements, discussions, negotiations, representations, or understandings of County and Owners 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 hens, 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. [Remainder of Page Intentionally Left Blank] 4 DocuSign Envelope 10: 11 BE2672-CO87-4198-BD94-EEAFD6BODCFB IN WITNESS WHEREOF, this Fmcroachment Easement Agreement is executed this V-1 day of N. Je, 6er 12023. ATTEST: Docu5lgned by: ,� 6V�u E BY: cgODazczaeaeaao_. Clerk to the Board of County STATE OF COUNTY OF Co[yrow('o ) SS. COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS BY: [jDocu3lgned by: E aCl'�^—" Kathy Chandler -Henry, Chaff OWNERS - The foregoing instrument was acknowledged before me by day of Ubvv.e.avv , 2023. My Commission expires: p7.1��1ZULN Notary Public —� SMERALDA HERNANDEZ ACNiA�iias NOTARY PUBLIC STATE OF COLORADO i NOTARY ID 20204005919 MY COMi1/IISSION EXPIRES 02/11/2024 DocuSlgn Envelope ID: 11 BE2672-CO87-4198-BD94-EEAFD6BODCFB STATE OF ) SS. COUNTY OF ET BY: Lourd a andez Gonzalez The foregoing instrument was acknowledged before me by Lar IejNrr . i zcio ,,tthis T day of Ubge„ lAp 2023. My Commission expires: tilailaou{ ,�LC'VJ4— Notary Public SMERALDA HERNANDEZ ;77 NOTARY PUBLIC STATE OF COLORADNOTARY ID 20204005MY COMMISSION EXPIRES 02/11/2 .E�Y=n91 3F$q'I �g'AE$gi SAC xa4a2 e If j F�v TOO b gg�z� 92 EgGGE RAVER 1 �a}iFa e B1 . 6ye je il�r � 9 €pfF 5 �fi d 1'13 ei B r [S�jC 7��1tC SS+1 i $Ca€€ i eat€$ if e �o oil e R €➢ }}Ai C% [[ 0➢ � Pyapeehhe[�:p8e A 4 fi i Y Sri 3Y it fPt3? �? 2 'YP= _ s ? �. 3;P �• ES PPI •i � K I.. } ifPi i- IE C T if . 3i .s (e#➢ if i i OPEN SPACE ENCROACHMENT Na on E RE EON EAGLE DEPX imil LAND SURVEY PLAT OF THE STROUD ENGINEERING DEPARTMENT ➢ SOUTH AND WEST LINES IN PART OF TRACT 33 P.o. ➢Gx ➢fio.3ao eaanownY SECTION 330, TOWNSHIP S SGU]N, MNOE 86MST FAGEf:. CO Btfi31 POL HIGHWAY S. OWSUM, CO 81937 8)093&]SBO FPX 9]03Y88]69 DocuSign Envelope to: 11BE2672-CO87-4198-BD94-EEAFD6BODCFB Board of Directors Dr. Tom Steinberg, In Memoriam Tom Edwards, Emeritus Dan Godec, Emeritus Christina Lautenberg, President David Schlendorf, Vice President Andrew Larson, Treasurer Susan Johnson, Secretary Todd Biekkola Andie Bombard Ann Darby Ann! Davis Scot Hunn Heidi McCollum Trey Milhoun Danielle Neumann Tina Nielsen Claude Pupkin T.J. Voboril Sustaining Council Tracy and Mike Autera Chris and Natalie Amoroso Better Way Foundation Andie and Dave Bombard Borgen Family Foundation Paige and Chris Cumming Arm Davis Margaret and Tom Edwards George Family Foundation Joanna and Jonathon Jacobsen Christina and Josh Lautenberg Tina Nielsen and Andy Littman Tam and Bob Levine Jenny and Flip Maritz Barbie and Tony Mayer Pam and Ben Peternell Precourt Foundation Dave Schlendod Laurie Schoen Scrooby Foundation Jody and David Smith Jill and Bob Warner Jr. Jessica Foulis Executive Director Bergen Tjossem Deputy Director Brittany Bobola Operations Manager Torrey Davis Stewardship Manager Katrina Brinkeroff Annual Giving and Events Manager Ken Inouye Community Engagement Manager Mailing Address Post Office Box 3016 Edwards, CO 81632 Physical Address 34215 Hwy. 6, Suite 205 Edwards, CO 81632 970.748.7654 www.evit.org LLREDjp ?� O 0 ^9'o 44rD'110Oco�`"N kr04 EAGLE VALLEY LAND TRUST September 1, 2023 Mr. Philip Kirkman Senior Open Space Specialist & Ranger Eagle County Open Space and Natural Resources P.O. Box 179 Eagle, CO 81631 Re: 2023 Duck Pond Parcel Encroachment Dear Mr. Kirkman, Thank you for your continued stewardship of the Duck Pond Conservation Easement. It is because of the diligence of landowners like you, that the beautiful lands throughout Eagle County remain protected for generations to come. Upon review of your proposal to resolve the Duck Pond encroachment with the neighboring landowner at the northeast corner of the property, we have found that it is not inconsistent with the Purpose of the Conservation Easement, which is to ensure that the Conservation Values of the property are preserved and protected in perpetuity. The Conservation Values for the property include Public Recreation or Education, Relatively Natural Habitat, and Open Space. Your preferred path forward includes allowing the acknowledged septic system to remain, allowing the approximately one square foot of concrete with acknowledgment by the offending party that no additional improvements and no replacement if the concrete were to fail and be removed, and requiring removal and restoration of the rest of the encroachment, including grass, weeds, and graveled areas. The property boundary with this neighbor is to be fenced, and we will continue to work with you on the fencing type and installation. We suggest an acknowledgment letter or agreement with the neighbor, and we look forward to working with you on documenting this correspondence. Please let me know if you have any questions. Sincerely, Torrey Davis Stewardship Manager