03-22-2016 Temporary Construction Easement Agreement Beck Family Partnership, Ltd.Eagle County, CO
Teak J Simonton
Pgs: 7
REC: $41.00
DOC: $0.00
201604345
03/29/2016
04:40:12 PM
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
KNOW ALL MEN BY THESE PRESENTS: Beck Family Partnership, Ltd., a Colorado
limited partnership ( "Owner "), whose address is PO Box 4030, Vail, Colorado 81658, in
consideration of Ten Dollars ($10.00), to be paid upon providing written notice of
commencement of construction by the Town, and other good and valuable consideration, does
hereby grant, bargain, sell and convey to TOWN OF AVON ( "Town" or "Grantee "), a Colorado
home rule municipality, whose address is P. O Box 975, Avon, Colorado 81620, a non - exclusive
temporary construction easement, subject to the terms and conditions contained in this
Temporary Construction Easement Agreement ( "Easement Agreement ") for the purpose of
establishing and maintaining site grades and drainage compatible with the 2016 Metcalf Road
Bicycle Climbing Lane Project over and across the tract of land described in paragraph 1 below.
The parties further agree as follows:
1. Owner is the owner of that certain real property described as Lot 33, Benchmark at
Beaver Creek, Amendment No. 4, 0780 Nottingham Road, Avon, Colorado ( "Property "). Owner
grants to the Town a temporary construction easement on a portion of the Property for the
purpose of constructing the improvements as described in Exhibit A attached hereto ( "Easement
Parcel "). The term of this temporary construction easement shall begin on April 1, 2016, and
shall automatically expire and be of no further force or effect on December 31, 2016 ( "Term ").
Notwithstanding the foregoing, this Easement Agreement shall terminate in its entirety and shall
be of no further force or effect upon (i) the recording of a written termination of this Easement
Agreement signed by the Town and the Owner or then current owners of the fee title to the
Property, (ii) a breach by the Town of the terms and conditions of this Easement Agreement
(beyond notice and reasonable cure period), or (iii) the Town shall abandon the Easement Parcel.
Upon such termination, the Easement Parcel will revert to the Owner or then current owners of
the fee title to the Property.
2. Town agrees that it will provide written notice of commencement of construction to
the Owner prior to commencement of construction. Town shall tender payment in the amount of
Ten Dollars ($10.00) as the stated monetary consideration above along with tendering the written
notice of commencement of construction and reimbursement to Owner of attorney's fees
incurred in negotiating this Easement Agreement in the sum of $5,000. In the event that Owner
seeks improvements to the remainder of the Property during the Term which conflict with the
terms of this Easement Agreement, Town agrees to consider modifications to this Easement
Agreement that accommodate Owner's desire to improve the Property while allowing the Town
to use the Easement Parcel to construct the improvements described in Exhibit A pursuant to the
terms of this Easement Agreement.
Temporary Construction Easement Agreement
Page 1 of 5
02555698.1
3. To the fullest extent permitted by law, Town will indemnify, defend and hold Owner
harmless from any and all causes of action, claims, suits, judgments, losses, actual damages and
costs (including without limitation reasonable attorneys' fees) incurred by the Owner or then
current owners of the fee title to the Owner Property as a result of the use of the Easement Parcel
by the Town, its officers, employees, contractors, agents or invitees or any other person and/or
the negligence or willful misconduct on the part of Town, its officers, employees, contractors,
agents or invitees in carrying out the obligations of the Town under this Easement Agreement.
This indemnification provision shall survive termination or expiration of this Easement
Agreement.
4. The Town, its employees, agents, contractors and representatives, shall be prohibited
from taking any action or omission that subjects the Easement Parcel or the Property to liens of
any kind, including, but not limited to, construction, mechanic's or materialmen's liens
(collectively, "Liens "). In the event the Easement Parcel or the balance of the Property becomes
subject to any such Liens directly or indirectly through the action or inaction of the Town, its
employees, agents, contractors, or representatives, the Town shall discharge and bond off any
such Liens within five (5) days of the imposition of any such Liens, and the failure to do so shall
permit Owner to pursue all of its rights and remedies under this Easement Agreement, at law, or
equity.
5. The Town agrees that it will not dispose of, generate, manufacture, release or store
environmentally hazardous substances (other than de minimis amounts) on or about the Property,
and that any fill deposited shall not contain any environmentally hazardous substances. To the
fullest extent permitted by law, Town will indemnify, defend and hold Owner harmless from any
and all causes of action, claims, suits, judgments, losses, actual damages and costs (including
without limitation reasonable attorneys' fees) incurred by Owner or then current owners of the
fee title to the Property as a result of any introduction of environmentally hazardous materials in
breach of this Paragraph 5 by the Town, its officers, employees, contractors, agents or invitees or
any other person. The indemnification provision contained in this Paragraph 5 shall survive
termination or expiration of this Easement Agreement.
6. Upon completion of construction of the Metcalf Road Bicycle Climbing Lane Project,
all materials placed by the Town on the Property (including construction materials and debris)
will be removed from the Property, at the Town's sole cost and expense, and the Property will be
returned to the same condition as existed prior to the Town's permitted use of the Easement
Parcel, except as specified in the attached Construction Plans. If the Town fails to return the
Property to the condition that existed prior to the Town's use of the Property or fails to grade and
establish drainage for the Property consistent with the attached Construction Plans, the Town
will promptly reimburse Owner for any and all costs reasonably incurred by Owner in returning
the Property to its prior condition or in establishing grading and drainage on the Property
Temporary Construction Easement Agreement
Page 2 of 5
02555698.1
consistent with the attached Construction Plans. The Town shall take no action which would
impair or in any way modify the earth cover over, or the lateral, or subjacent support for the
aforementioned improvements and appurtenances within the Easement Parcel without obtaining
the specific written permission of the Owner, which permission shall not be unreasonably
withheld, conditioned or delayed. The Town shall take no action nor shall otherwise knowingly
permit any activity, event, or permanent or temporary structure which interferes with the
movement of pedestrian, non - motorized or vehicular traffic, emergency vehicle access, access
for maintenance or inspection, and other lawful purposes within the Easement Parcel.
7. The construction documents for the Metcalf Road Bicycle Climbing Lane Project will
include the Property in the project limits, and the contractor will be required to provide general
liability insurance in commercially reasonable amounts, covering all construction activity on the
Property, consistent with the remainder of the Metcalf Road Bicycle Climbing Lane Project site,
which general liability insurance shall name Beck Family Partnership, Ltd., as an additional
insured. The Town shall deliver the certificate of insurance naming Beck Family Partnership,
Ltd., as an additional insured prior to its use of the Easement Parcel.
8. All notices, requests, demands, and other communications required or permitted to be
given under this Easement Agreement shall be in writing and sent to the addresses set forth
below. Each communication shall be deemed duly given and received: (i) as of the date and time
the same is personally delivered with a receipted copy; (ii) if delivered by U.S. Mail, certified
mail, return receipt requested, upon delivery to the intended recipient, or on the date of the first
refused delivery, if applicable; or (iii) if given by nationally recognized or reputable overnight
delivery service, on the next day after receipted deposit with same.
Owner: Beck Family Partnership, Ltd.
Attn: Andy Beck
P.O. Box 4030
Vail, Colorado 81658
with simultaneous
copies to: Moye White LLP
Attn: Thomas M. List, Esq.
16 Market Square, 6th Floor
1400 16th Street
Denver, CO 80202
Town of Avon: Town of Avon
One Lake Street
P.O. Box 975
Temporary Construction Easement Agreement
Page 3 of 5
02555698.1
Avon, CO 81620
Attn: Town Engineer
9. During the Term, Owner reserves all rights attendant to its ownership of the Property
including, but not limited to: (a) the use and enjoyment of the Property for all purposes insofar as
such use is consistent with and does not impair any grant herein contained, and (b) the right of
Owner or then current owners of the fee title to the Property to sell and convey the Property or
mortgage or encumber the Property in favor of and as additional security to the holder of a
mortgage or deed of trust relating to the Property; provided, however, that the Easement Parcel
shall not be impaired by any foreclosure or deed in lieu of foreclosure of such security interest
relating to the Property.
10. Owner covenants and agrees that it has good title to the Property and that it has good
and lawful right to grant this Easement Agreement, subject to any easements, liens, claims,
reservations, covenants, conditions and restrictions of public record or which are obvious from a
physical inspection of the Property.
11. In the event of any dispute resulting in litigation hereunder, the prevailing party shall
be entitled to recover all costs and expenses reasonably incurred by it in connection with the
enforcement of this Easement Agreement, including reasonable attorneys' fees and costs in
connection therewith. This provision shall survive termination of this Easement.
12. This instrument is the complete integration of all understandings between the parties.
No prior or contemporaneous addition, deletion, or other modification shall have any force or
effect, unless embodied in this Easement Agreement in writing. No subsequent novation,
renewal, addition, deletion, or other amendment shall have any force or effect unless embodied
in a written amendment to this agreement properly executed by the Parties. No oral
representation of any kind preceding the date of this Easement Agreement by any officer,
employee, or agent of Owner at variance with the terms and conditions of this Easement
Agreement, or with any written amendment to this Agreement, shall have any force or effect nor
bind the Owner. This Easement Agreement and any amendments to it shall be binding upon the
parties and their successors and assigns. If any provision of this Easement Agreement shall be
held invalid, illegal or unenforceable, it shall not affect or impair the validity, legality, or
enforceability of any other provision of this Easement Agreement, and there shall be substituted
for the affected provision(s) a valid and enforceable provision(s) as similar as possible to the
affective provision(s).
13. Each and every term, condition, or covenant of this Easement Agreement is subject to
and shall be construed in accordance with the provisions of Colorado law, any applicable state or
federal law. Such applicable law as may be amended from time to time, is expressly
Temporary Construction Easement Agreement
Page 4 of 5
02555698.1
incorporated into this Easement Agreement as if fully set out by this reference. Venue for any
action arising out of this Easement Agreement shall be in the District Court in the County of
Eagle, Colorado.
14. The benefits and burdens of the Easement Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns.
15. This Easement Agreement may be executed in counterparts with the same effect as if
all the parties had executed thje�e instrument.
IN WITNESS E O Owner has executed this Temporary Construction Easement
Agreement o e d ritten above.
By: Date: / ��
ST E OF (" )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
/ y l a,� C,/ , 2016, by(i
Witness my hand and official seal.
otary Public
Ease e t Agree ccepted and approved by the
By' N Oi
Je nie Faucher,
Mayor ��w•
.. •t•- •♦"IM-1
Temporary Construction Easement Agreement
Page 5 of 5
02555698.1
My commission expires: ( (111.2 6 / (p
;SEA
STELLA D. PADILLA
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 19964019544
nvWcOOMMl$SION EXPIRES 111812016
L
,;rater- Mountain
WrGINEERING
Civil Engineers & Surveyors
EXHIBIT A
LEGAL DESCRIPTION
FOR TEMPORARY CONSTRUCTION EASEMENT
A parcel of land located in Lot 33, Block 1, Benchmark at Beaver Creek, Amendment No. 4, as
recorded in Book 274 at Page 701 under Reception Number 171107, at the Office of the Clerk
and Recorder of Eagle County, Colorado and being more particularly described as follows:
Commencing at the southwest corner of Lot 33 and the easterly right of way line of Metcalf Road
and the northerly right of way line of Nottingham Road;
Thence N20 °47'07 "W along said easterly right of way line of Metcalf Road and the west line of
Lot 33 a distance of 31.25 feet to the True Point of Beginning of the parcel herein described;
Thence continuing N20 °47'07 "W along said easterly right of way line of Metcalf Road and the
west line of Lot 33 a distance of 137.96 feet to a point;
Thence N69 °1 2'53 "E a distance of 10.00 feet to a point;
Thence S20 °47'07 "E a distance of 152.31 feet to a point;
Thence N55 °39'34 "W a distance of 17.49 feet to the True Point of Beginning;
The above parcel contains 1,452 square feet (0.033 acres) more or less;
o.PCO. RE�Sa�lh
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Date: February 1, 2016 Prepared by: John D. McMahan P.L.S. 37934
Colorado Licensed Professional Land Surveyor
On behalf of Inter - Mountain Engineering
IME Project Number: 15 -0011
DENVER OFFICE
9618 Brook Hill Lane I Lone Tree, CO 80124 1 Phone: 303.948.6220 I Fax: 303.790.4499
VAIL VALLEY OFFICE
40801 U.S. Highway 6, Suite 203 1 PO Box 978 1 Avon, CO 81620 1 Phone: 970.949.5072 1 Fax: 970.949.9339
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TOWN OF AVON, EAGLE COUNTY, COLORADO
40&11 US HWY 6&74, SUITE 203 BOX 978 AVON, CO 816 2II PH: (970)949-5072
6551 S. RFVFRF PARKWAY, SU1TF. 1% CF,NTFNNIAI, CO 80111 PIL (703)918- 6220