HomeMy WebLinkAboutDRB150042_MillCk-Enc_1428682740.pdf AGREEMENT'PERMITTING ENCROACHMENT
BENEFITING LOT 3, PARCELS A AND B, VAIL VILLAGE FILING 1
This AGREEMENT PJRMITTING ENcROACHMENT BENEFITING (this "Agreement")
is made as of the // day of 4-7- , 2012 by and between THE VAIL
CORPORATION, a Colorado corporation ("Vail"), and MILL CREEK PROPERTY, LLC, a
Colorado limited liability company ("Owner").
RECITALS
A. Owner is the owner of certain real property located in Vail Village Filing 1, Eagle
County, Colorado with legal description of:
Lot 3, Block 1, Parcel A, Vail Village Filing 1 according to the plat recorded on February
24, 1986 at Book 0436, Page 0982, Parcel No. 2109-082-48-003, 305 Mill Creek Circle,
Vail,Colorado, and
Lot 3, Block 1, Parcel B, Vail Village Filing 1 according to the plat recorded on February
24, 1986 at Book 0436, Page 0982 being Parcel No„ 2101-082-48.004, 303 Mill Creek
Circle,Vail, Colorado (the "Premises").
B. Vail is the owner of Vail Village Filing 5, Tract E, according to the recorded plats
thereof, County of Eagle, State of Colorado lying adjacent to the Premises(the "VA Land").
C. A site survey plan for improvements to be located on the Premises (the "Plan")
prepared by Ceres+ Landscape Architecture ("Exhibit A") is attached hereto and made a part hereof •
by reference.
D. Exhibit A of the Plan shows that certain vegetative landscaping elements are to be
located on the VA Land, specifically trees and shrubs, a heated path and related irrigation (the
"Improvements").
E. Vail is willing to permit the Improvements to encroach onto the VA Land in
consideration of certain undertakings by Owner as set forth herein and subject to the terms and
provisions of this Agreement,
AGREEMENT
NOW, THEREFORE, in consideration of the Recitals, the mutual promises contained herein
and other good and valuable consideration the receipt and sufficiency of which is hereby [
acknowledged, the parties agree as follows:
Vail hereby grants its consent to the existence and use of the Improvements over,
under, above and through the VA Land in the locations shown on, and in accordance with the Plan.
The right to construct the Improvements onto the VA Land is strictly limited to the Improvements
which encroach onto the VA Land as depicted on the Plan,
The encroachment rights granted by this Agreement shall be strictly limited to and
solely for (i) the maintenance, replacement and use of the Improvements as depicted on the Plan,
(ii) the benefit of Owner, and its guests, tenants and invitees (collectively, the 'Permittees")and (iii)
those activities reasonably necessary for the performance of the obligations undertaken by Owner
under this Agreement.
Acceptance of the encroachment rights by Owner shall constitute Owner's agreement
and consent as follows:
I, Improvements. (a) The Improvements shall be maintained, replaced and operated at
all times (1) by Owner at Owner's sole cost and expense, and Owner shall bear all risk of loss or
damage with respect thereto and (ii) in compliance with all applicable local, state and federal
regulatory authorities, Further, Owner agrees to keep the Improvements in good order, condition,
repair and appearance
(b) The Improvements constructed and installed by Owner shall remain the property, and
therefore the responsibility, of Owner; provided, however, that Owner hereby agrees that the
Improvements are adjacent to a recreation path (the "Path"), and Owner hereby covenants not to
impede, hinder or halt use of the Path by pedestrians and/or non-motorized vehicles, e.g., bicycles,
including but not limited to allowing the applicable Improvements in the vicinity of the Path to
overgrow the Path or causing water to spray overthe Path during daytime or early evening hours in
the irrigation of the applicable Improvements.
(c) Any damage or loss to the Improvements caused by or arising from Vail's use of the •
VA Land shall be borne by Owner at Owner's sole cost and expense.. Notwithstanding anything in
this Agreement, Owner specifically acknowledges and agrees that the Improvements and any
portion of the Improvements, can only be installed on the VA Land as designated on said Exhibit A
also known as the Area of Encroachment, Moreover, any improvement installed on the VA Land is
subject to removal by Vail or by Property Owner if directed by Vail, at Property Owner's sole cost
and expense.
(d) Under no circumstances whatsoever shall the Improvements or any additional
improvements [as defined in this subparagraph (d)] encroach onto the VA Land except as provided
herein and except as shown on the Plan without the prior written consent of Vail, "Additional
Improvements" shall include but are not limited to any further improvement located on the VA
Land not contemplated and not approved in this Agreement.
(e) No trees shall be removed from the VA Land
(f) Owner hereby covenants and agrees that Owner shall bear all costs with respect to
any drainage or other malfunction caused by or arising out of the design, construction, maintenance,
or irrigation of the Improvements, including but not limited to the slope failure or overflow of'water
from irrigation of'the applicable Improvements
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(g) Owner shall notify Vail of completion of the Improvements and Vail shall have the
right to conduct a field review of the completed Improvements Owners shall make any
adjustments to the Improvements as directed by Vail
2.. Reversion. At such time and in the event the Improvements and the encroachment
rights thereto shall be abandoned, Owner's real property interest pursuant to this Agreement shall
automatically revert to and be thereafter merged with the VA Land In such event, Owner shall, at
its sole cost and expense, prepare and execute such documentation that Vail deems necessary or
appropriate to effect such reversion in a form and content acceptable to Vail which document shall
thereafter be recorded in the real property records of Eagle County, Colorado. In the event the
Improvements and the encroachment rights thereto are abandoned, Owner shall remove, or cause to
be removed,the Improvements(and all of Owner's personal property, if'any) from the VA Land.
3, Indemnity.. Owner agrees to indemnify, defend and hold harmless Vail, its subsidiaries
and affiliates, agents, officers, directors, servants and employees of and fiom any and all liability,
claims, liens, demands, actions and causes of action whatsoever arising out of or related to any loss,
cost, damage or injury, including death, of'any person or damage to property of any kind resulting
in connection with the use, existence, and encroachment of'the Improvements onto the VA Land,
including without limitation, (1) those caused by Owner's operations or the misconduct or negligent
acts, errors or omissions of Owner, its subcontractors, the Permittees or any person directly or
indirectly employed by them, or any of them, while engaged in any activity on the Improvements or
the VA Land, and (2) those caused by the design, construction, operation, and irrigation of the
Improvements whether occurring during construction of the Improvements or at any time thereafter
4. Insurance. Owner, on behalf of itself, its successors and assigns shall, at all times,
have in effect a policy of general comprehensive liability insurance naming Vail as named insured
in the amount of$2,000,000 per occurrence covering loss, damage or injury caused by or arising
from the construction, maintenance or use of the Improvements on the VA Land Such insurance
shall provide that any cancellation, reduction in amount or material change in coverage shall be
effective only upon :30 days prior written notice to Vail and only with Vail's consent, at Vail's sole
discretions. Owner shall furnish Vail with a certificate of insurance evidencing such policy and
Vail's being named additional insured
5. Encroachment Appurtenant. Subject to the provisions of' Paragraph 6 hereof' and
unless terminated as provided in Paragraphs 2 and 9 hereof, the encroachment rights shall run with
the land and shall be appurtenant to the Premises so that a transfer of title to the property shall
automatically transfer the burdens and benefits of'the encroachment rights under this Agreement.
6. Retention of Rights. Notwithstanding anything to the contrary in the Agreement,
Vail specifically retains all its right, title and interest in and to the VA Land.
7. Successors and Assigns The terms, covenants and conditions of' this Agreement
shall be binding on and inure to the benefit of the successors and assigns of'all patties hereto.
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8 No Liens Owner shall not cause, suffer or permit any mechanic's, materialman's or
other liens to attach to or be recorded against the VA Land in connection with the work to be
performed by Owner under this Agreement and/or the maintenance or replacement of the
Improvements by Owner. In the event that any mechanic's lien is filed against the VA Land in
connection with the Improvements, Owner agrees to diligently cause such lien to be released in the
public records either by payment to the Honor or, if such lien is in dispute, by providing a bond •
pursuant to the provisions of§§ 38-22-131 and 132, CRS, as amended and in effect at the time of
the lien, Further, Owner shall indemnify and hold Vail and the VA Land harmless from any loss,
cost or liability arising out of or incurred in connection with any liens,
•
9, Default This Agreement shall be in full force and effect for as long as Owner
is in compliance with the terms of this Agreement; however, if any of the conditions of this
Agreement fail to occur or if any obligations are breached by Owner or if'Owner is in any way in
default hereunder (collectively, the "Default"), then, upon written notice from Vail to Owner of a
Default, Owner shall have the right to cure the Default within a period of ninety (90) days. If
Owner cures the Default, written notice of such cure shall be provided by Vail If Owner does not
cure the Default within such ninety days, then this Agreement shall be considered terminated by its
terms and automatically become null and void and of no further force and effect, and Owner shall
have no encroachment rights hereunder, and, further, Owner agrees to execute such documents as
may be necessary or desirable to effect the termination of this Agreement..
10. Entire Agreement, This Agreement contains the entire agreement and understanding
of the parties with respect to the entire subject matter hereof, and there are no representations,
inducements, promises or agreements, oral or otherwise, not embodied herein, This Agreement
specifically supersedes any and all prior discussions, agreements, proposals, negotiations and
representations relating hereto
I1,. Counterparts; Facsimile _Transmission This Agreement may be executed by
facsimile and/or in any number of counterparts, any or all of which may contain the signatures of
less than all the parties, and all of which shall be construed together as but a single instrument and
shall be binding on the parties as though originally executed on one originally executed document.
All facsimile counterparts shall be promptly followed with delivery of original executed
counterparts.
12.. Miscellaneous (a) If any clause or provision of this Agreement shall be held
to be invalid in whole or in part, then the remaining clauses and provisions, or portions thereof;
shall nevertheless be and remain in full force and effect.
(b) No amendment, alteration, modification of or addition to this Agreement
shall be valid or binding unless expressed in writing and signed by the parties to be bound thereby.
(c) The captions of each section are added as a matter of convenience only and
shall be considered of no effect in the construction of any provision of this Agreement
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(d) If any party hereto shall bring any suit or action against another for relief,
declaratory or otherwise, arising out of this Agreement, the prevailing party shall have and recover
against the other party, in addition to all court costs and disbursements, such sum as the Court may
adjudge to be reasonable attorneys' fees.,
(e) This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Colorado.
(f) Any and all warranties,provisions,rights and obligations of the parties herein
described and agreed to be performed subsequent to the termination of this Agreement shall survive
the termination of this Agreement
(g) Time is of the essence with respect to the performance of each of the
covenants and agreements herein set forth„
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to become
effective as of the date first written above.
[Signatures on following pages]
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THE VAIL CORPO:ATION,A COLORADO CORPORATION
By: � >
Name: i Lim. T- -i ta`L�j,-7,
Title: c2,. - Y ,i
STATE OF COLORADO )
)ss.
County of Eagle )
17-The foregoing insti ument was acknowledged before me this J� day of
GcfU iie'f ,rn, 2012, byAe,<ise€A./pekm/2-9 as5-.lied—1312es o N-Caa of The Vail
Coipozation, a Colorado corporation,
Witness my hand and official seal.
My commission expires: •- —i7
;,,E flf,,,„-_r]__� i
*. _'A //�jqq - Zipd-V
vI Sc �C Notary u•.lc
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"-co ,,+
[Owner signs'.,_:“ "• owing page]
444474,
A}iprovei]as to Forel,
Vail Retina tt o Por a arimenl
By: T / /J .� 1.___-,
Noino ki plc ,(�5H
Date:_. '101 —.„.11...-" _.
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OWNER:
MILL CREEK PR_ PERTY,
By:_—
Name: ry fl1 ��jt, °.4_
Title: / rf, 3,.�-R_.� .
SIATE OF 60�,15/`{I cP )
) ss
County of fr Jc )
ki
The foregoing instrument was ackn wledged before me this II ° day of
6070:5a1— ,20& by J V� / Vtrf 1,4.% ---- as y �.rL of MILL
CREEK PROPERTY,LCC, a Colorado limited liability company.
Witness my hand and official seal. My 0ommtmission Expires
12/0112013
My commission expires:
,,P-' vi flOpif '...,,, 6)/4 /1-- at6C
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Al. i
[ S E ;,, IA R .' ,. •..4
° Notary Public
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EXHIBIT A
(Attached)
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