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HomeMy WebLinkAboutTab 5 Temporary Access Easement Agreementt 747673 04/30/2008 04:31:14 PM Page 1 of 7 Jean Alberico, Garfield County, Colorado Rec Fee: $36.00 Doc Fee: $0.00 eRecorded WHEN RECORDED, RETURN TO: CERISE PARK, LLC 1880 LAZY O ROAD SNOWMASS, COLORADO 81654 TEMPORARY ACCESS EASEMENT AGREEMENT THIS TEMPORARY ACCESS EASEMENT AGREEMENT (this "Easement Agreement") is made as of the 24th day of April, 2008 by and between CERISE PARK, LLC, a Delaware limited liability company with an office at 1880 Lazy 0 Road, Snowmass, Colorado 81654 ("CP"), and LEWIS RONALD THOMPSON and JACQUELYN THOMPSON, residing at 1605 Highway, Carbondale, Colorado 81623 (collectively, "Thompson"). RECITALS 1. On April 24, 2008, CP acquired from TLCCO, Inc. ("TLCCO") the real property legally described as Lot 1 of the TLLCO Property Subdivision Exemption recorded in the Office of the Clerk and Recorder of Garfield County on April 8, 2008 at Reception No. 746205 (the "CP Property"), and Thompson acquired from TLCCO the real property legally described as Lot 2 of the TLLCO Property Subdivision Exemption recorded in the Office of •the Clerk and Recorder of Garfield County on April 8, 2008 at Reception No. 746205 (the "Thompson Property"). 2. At the time of CP's acquisition of the CP Property, Thompson resided, and as of the date of this Easement Agreement Thompson continues to reside, in a house on the CP Property (the "Thompson House") and Thompson used and continues to use a maintenance building on the CP Property (the `Maintenance Building"). CP and Thompson have entered into a Residential Lease dated as of April 24, 2008 (the "Residential Lease"), providing for Thornpson's continued occupancy of the Thompson House, subject to the terms and conditions of the Residential Lease, and a Maintenance Building Lease dated as of April 24, 2008 (the "Maintenance Building Lease"), providing for Thompson's continued occupancy of the Maintenance Building, subject to the terms and conditions of the Maintenance Building Lease. In addition, Thompson continues to own a carriage house (the "Carriage House") on the Thompson Property. 3. CP and Thompson are further parties to an agreement dated as of April 24, 2008 (the `Relocation Agreement"), pursuant to which CP has agreed at its expense to relocate the Thompson House to the Thompson Property, under the terms and conditions set forth in the Relocation Agreement. 4. Access to the Thompson House and the Carriage House from Highway 133 has historically been provided by a dirt and gravel driveway approximately 12 feet in width (the "Existing Driveway"). The Existing Driveway is identified as "12' Gravel Road" on Exhibit A to this Easement Agreement. Access to the Thompson House and the Carriage House is also provided by a dirt and gravel driveway approximately 12 feet in width from North Bridge Drive in River Valley Ranch (the "Alternate Existing Driveway"), depicted on Exhibit A to this �+ hee4 ea cord co.be,e t; e, 1St Coop. A4'e' 747673 04/30/2008 04:31:14 PM Page 2 of 7 Jean Alberico, Garfield County, Colorado Rec Fee: $36.00 Doc Fee: $0.00 eRecorded Easement Agreement as a gravel drive running north and south through the CP Property. The Alternate Existing Driveway also provides access to the Maintenance Building. 5. CP intends to develop the CP Property and in connection therewith, to dedicate to the Town of Carbondale (the "Town") easements for public rights of way over and across the CP Property. 6. CP and Thompson desire to provide for continued access to the Thompson House in its current location until it is relocated to the Thompson Property, for continued access to the Thompson Property, and for access to the Maintenance Building until termination of the Maintenance Building Lease. NOW, THEREFORE, in consideration of the premises, and the covenants and agreements contained in this Easement Agreement, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Temporary Access Easement. CP hereby grants to Thompson a temporary non- exclusive access easement (the "Temporary Easement") over and across the CP Property for the purpose of ingress and egress to the Thompson House and the Thompson Property and, while the Maintenance Building Lease is in effect, to the Maintenance Building. Initially, the Temporary Easement shall be in the same location as the Existing Driveway and the Alternate Existing Driveway, as shown on Exhibit A to this Easement Agreement. The grant of easement shall be reflected upon the recording of this Easement Agreement in the records of the Clerk and Recorder of Garfield County, Colorado, at CP's sole cost and expense. 2. Relocation of Temporary Easement. The foregoing to the contrary notwithstanding, CP shall have the right, in its sole discretion, to change the location of the Temporary Easement by delivering to Thompson a new instrument providing for the relocation of the Temporary Easement, provided such new location also provides an adequate means of ingress and egress to the Thompson House and the Thompson Property and, while the Maintenance Building Lease is in effect, to the Maintenance Building. The location of the relocated Temporary Easement shall be shown on a map and identified by a legal description incorporated in the new instrument referred to in the preceding sentence and the grant of easement shall be reflected upon the recording of such new instrument in the records of the Clerk and Recorder of Garfield County, Colorado, at CP's sole cost and expense. 3. Suspension of Temporary Easement. Thompson acknowledges that it may be necessary for CP to suspend a portion of the Temporary Easement from time to time and for as long as required for the purposes of construction on the CP Property. If such suspension becomes necessary, in CP's sole discretion, CP shall give not less than ten days' prior written notice to Thompson to such effect, and CP shall provide for adequate alternate means of ingress and egress to the Thompson House and the Thompson Property and, while the Maintenance Building Lease is in effect, to the Maintenance Building. Such alternate means of ingress and egress may include continuation of access from either Highway 133 or from North Bridge Drive, (but not necessarily from both). 4. Termination of Temporary Easement. The Temporary Easement shall terminate upon 2 747673 04/3012008 04:31:14 PM Page 3 of 7 Jean Alberico, Garfield County, Colorado Rec Fee: $36.00 Doc Fee: $0.00 eRecorded CP's dedication to the Town of an easement for a public right of way or rights of way that allow for ingress and egress to the Thompson Property and, if the Thompson House has not then been relocated to the Thompson Property, to the Thompson House. Such termination shall occur automatically and without the need for further action on the part of either CP or Thompson, provided that Thompson hereby grants a power of attorney to CP, and constitutes CP Thompson's true and lawful attorney-in-fact, for the sole purpose of removing this Easement Agreement and any other instruments filed of record relating to this Easement Agreement from the records of the Clerk and Recorder of Garfield County, Colorado. Unless previously so terminated, the portion of the Temporary Easement which provides access to the Thompson House shall terminate upon the relocation of the Thompson House to the Thompson Property and the portion of the Temporary Easement which provides access to the Maintenance Building shall terminate upon the termination of the Maintenance Building Lease. Such termination shall occur automatically and without the need for further action on the part of either CP or Thompson, provided that Thompson hereby grants a power of attorney to CP, and constitutes CP Thompson's true and lawful attorney-in-fact, for the sole purpose of removing such portion or portions of the Temporary Easement from the records of the Clerk and Recorder of Garfield County, Colorado. 5. Maintenance and Repair of Temporary Easement: Insurance. Maintenance of the Temporary Easement against normal wear and tear, including snow removal, shall be the responsibility of Thompson, provided that CP shall be responsible for repair of damage, i f any, to the Temporary Easement caused by construction activities undertaken by or on behalf of CF. Each of the parties shall maintain their own liability insurance in amounts of not less than $1,000,000.00 per occurrence, against any loss or claim caused by injury to third parties on or over the Temporary Easement. Each such policy of insurance shall name the other party as additional insureds. 6. Binding Effect. This Easement Agreement shall run with the land and shall inure to the benefit of and be binding upon the parties hereto and their permitted successors and assigns. Neither party shall have the right to assign this Easement Agreement without the prior written consent of the other party. 7. Additional Documents or Actions. The parties agree to execute any additional documents and to take any additional actions reasonably necessary to carry out the intent and purpose of this Easement Agreement. 8. Enforcement and Remedies. The parties agree that this Easement Agreement may be enforced by specific performance, injunctive or other appropriate relief, including damages, as may be available according to the laws of the State of Colorado. In the event that an action is brought to enforce this Easement Agreement, the prevailing party shall be entitled to recover its costs and fees, including reasonable attorney's fees. 9. Nonwaiver of Rights, The waiver by any party to this Easement Agreement of a breach of any term or provision of this Easement Agreement shall not operate or be construed as a waiver of a subsequent breach by any party. No waiver of default by either party of any of the terms, covenants, and conditions hereof to be performed, kept and observed by the other party shall be construed or shall operate as a waiver of any subsequent default of any of the terms, 3 747673 04/3012008 04:31:14 PM Page 4 of 7 Jean Alberico, Garfield County, Colorado Rec Fee: $36.00 Doc Fee: $0.00 eRecorded covenants, or conditions to be performed, kept and observed by the other party pursuant to this Easement Agreement. 10. Governing Law. Venue. Jurisdiction. This Easement Agreement and all disputes arising under this Easement Agreement shall be governed by the laws of the State of Colorado, and the parties agree that venue and jurisdiction over any claim arising from this Easement Agreement shall lie in the courts of Garfield County, Colorado, 11. Entire Agreement: Counterparts. Except as otherwise provided in this Easement Agreement, this Easement Agreement constitutes the entire agreement between the parties hereto and all other representations or statements heretofore made, verbal or written, are merged and integrated herein, and this Easement Agreement may be amended only in writing executed by duly authorized representatives of the parties hereto. This Easement Agreement may be executed in counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. 12. Authority to Sign. Each person signing this Easement Agreement represents that he or she has the authority to sign and bind the party for whom he or she signs this Easement Agreement. 13. Notice. Any written notice required by this Easement Agreement shall be deemed delivered on the happening of any of the following: (a) hand delivery to the person at the address below; (b) delivery by facsimile with confirmation of receipt to the fax number below; or (c) within three (3) days of being sent by first class mail, postage prepaid, addressed as follows: Cerise Park, LLC c/o Frieda Wallison 1880Lazy ORoad Snowmass, CO 81654 Fax number: 970-927-4094 Lewis Ronald Thompson and Jacquelyn Thomason 1605 Highway 133 Carbondale, CO 81623 and Beattie, Chadwick & Houpt, LLP 932 Cooper Avenue Glenwood Springs, CO 81601 Fax number: 970-945-8671 IN WITNESS WHEREOF, the parties hereto have affixed their signatures as of the day and year first above written. 4 747673 04/30/2008 04:31:14 PM Page 5 of 7 Jean Alberico, Garfield County, Colorado Rec Fee: $36.00 Doc Fee: $0.00 eRecorded CERISE PARK, LLC 44:4 K: h/.1.6.,_ By: Frieda K.. Wailison, Manager THOMPSON Aki Lewis onald Thompson 5 Date: 9/ �o p Date: Date: Y77 Y/0 ir Av.' 221, Zoo& 747673 04/30/2008 04:31:14 PM Page 6 of 7 Jean Alberico, Garfield County, Colorado Rec Fee: $36.00 Doc Fee: $0.00 eRecorded STATE OF COLORADO ) )ss. COUNTY OFA{kin ) The foregoing instrument was subscribed and sworn to before me this day of 11 , 2008, by Frieda K. Wallison as Manager of Cerise Park, LLC. WITNESS my hand and official seal. My commission expires: q O is- :la, Notary Public cOi• ) )ss. ) 44 The foregoing instrument was subscribed and sworn to before me this.4i day of fipm 1 , 2008, by Lewis Ronald Thompson. WITNESS my hand and official seal. r;4': b1'A14 •.s 1 11 tt (SEAL (rm.% .0,,9 k OP bOV'-f- y commission expires: TATE OF COLORADO COUNTY OF GARFIELD ) )ss. ) The foregoing instrument was subscribed and sworn to before me this 2 Iday of , 2008, by Jacquelyn Thompson. 0 1p PA' WITNESS my hand and official seal. 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