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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 W 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 o C 0 ,;-47 0 -, "' — &'i � Inter- Mountain ENGINEERING (D N (D j -� ° - O N y - Civil Engineers & Surveyors o`< m Z \p•. 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 m m 'D Z nyjC o rt0 3 0 m 0 _O n �� 3�� _ 6 0 �'a n y �� py 0 3 7 0 °° d ° Z r 2 Cn IA N Q. Ort � = ( " 1 N y II C- w �3 g y OO Cl Wr =O 0 C' Oa -Tl m (D -'° CL O n� m 0 :3 v L (-D O y Uj :3 O O N o< ~ .�. c F rn o m (n C � � m �� c sc: sm Z O Z o m 3 0 (n 0 Z O 'Z r0-r ° C 3 (=Dr' 7 �1 p _r n 0 m O 11 ^4odd G9`EYOR �1 = 50' R• 0• W.) o ROAD Z /�ETCALF O wv Qj y �o o �v 4T07_w 137.96' — ____ - - -- 152.31' Ig�l __� - -- S2047'0TE I p O „2 ice/ wtiZLl� 1 1 1 O � Z � p�� 1 III � I I I� I TEMPORARY CONSTRUCTION EASEMENT ca o N LEGAL EXHIBIT LOT 33, BLOCK , Inter- Mountain ENGINEERING ° - ! ; BENCHMARK AT BEAVER CREEK - Civil Engineers & Surveyors o 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