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25.02.25 Non-Exclusive Limited License Agreement - Vail Valley Montain Trails AllianceP Avon COLORADO NONEXCLUSIVE LIMITED LICENSE AGREEMENT This Nonexclusive Limited License Agreement ("Agreement") is entered into this "L day of T�,eb✓v, 2025 (the "Effective Date"), between the Town of Avon, Colorado, a Colorado home rule municipality ("Town") and Vail Valley Mountain Trails Alliance, a 501(c)(3) in the State of Colorado ("VVMTA") (each a "Party," and collectively the "Parties"). RECITALS A. The Town holds good and valid title to the certain Open Space parcels ("ROW") and desires to protect and preserve the ROW. The Town further maintains police power authority to regulate access to and use of the ROW in a manner that protects the public health, safety, and welfare, consistent with Applicable Law. VVMTA must comply with all Town codes, requirements, standards and specifications, as well as all other Applicable Law. B. VVMTA wishes to construct, maintain, and repair certain Improvements (as defined below) to an existing Public Right -of -Way, which Improvements and the location of such Improvements are identified in Exhibit A, attached hereto. C. The Town is willing to grant VVMTA a nonexclusive limited license for the above -stated purpose, upon the terms and conditions contained below, and in accordance with Applicable Law. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Town hereby grants to VVMTA, with respect to such interest as the Town may have in the ROW, the authorization to construct, install, maintain, and repair certain Improvements in, under, or through the subject ROW, subject to the following conditions: Section 1. Definitions. The following definitions shall apply generally to the provisions of this Agreement. 1.1 "Applicable Law" means any statute, ordinance, judicial decision, order, executive order, or regulation having the force and effect of law that determines the legal standing of a case or issue. 1.2 "Improvements" means the earthwork, drainage features, signage, and such other items that are identified on the attached Exhibit A and installed in the subject ROW. November 12, 2024 FINAL 1.3 "Hazardous Substances" means any substance or material defined or designated as hazardous, or other similar term, by any Applicable Law presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, without limitation, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. 1.4 "Public Rights -of -Way", "Public ROW", or "ROW" means the space in, upon, above, along, across, and below the Parcel described herein, including parcels considered open space and or dedicated as such. This term shall not include any property owned by any person or entity other than the Town, except as provided by Applicable Law or pursuant to an agreement between the Town and any such person or entity. Section 2. Term. This Agreement shall be effective as of the Effective Date and shall extend for a term of ten (10) years from the Effective Date, unless it is earlier terminated in accordance with the provisions herein. The term of this Agreement shall automatically extend for additional ten (10) year terms so long as VVMTA maintains the Improvements, unless the Agreement is terminated by either Party upon ninety (90) days prior written notice from one Party to the other given prior to the expiration of the then applicable term, subject, however, to such additional termination rights as are set forth in this Agreement. Section 3. Scope of Agreement. All rights granted to VVMTA under this Agreement shall be subject to the Town's exercise of its police powers and the prior and continuing right of the Town under Applicable Law to use any parts of the Public ROW, exclusively or concurrently with any other person or entity and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, leases, licenses, permits, franchises, encumbrances, and claims of title of record which may affect the Public ROW. VVMTA acknowledges that this Agreement does not constitute the Town's consent to occupy Public Rights -of -Way other than the subject ROW identified in the attached Exhibit A. This Agreement does not terminate, alter, limit or change VVMTA's existing rights of access, and the scope of this Agreement is expressly limited to VVNITA's construction, installation, maintenance and repair of the Improvements without affecting any other rights of VVMTA. Section 4. Construction. VVMTA intends to install the Improvements identified and depicted in Exhibit A in the location identified on Exhibit A. 4.1 Utility Notification Center. VVMTA shall contact the Utility Notification Center of Colorado, https://www.colorado8l l.org/, for location of any underground utilities, and locate the Improvements as required. 4.2 Location of Utilities. Prior to construction, VVMTA and its contractors must physically identify the locations of existing underground utilities within the path of construction via potholing. Potholes must be filled with flo-fill or flashfill and the backfill method must be approved by the Town prior to undertaking such work. To the extent VVMTA or any of its contractors cause damage to any utility facilities, at the discretion of the Town, all construction within the subject ROW shall cease in order to allow the affected utilities to have the damage repaired. Should a stop work order be issued as a result of any damage caused November 12, 2024 FINAL 2 by VVMTA or any of its contractors, such stop work order may not be lifted until such time as all damaged parties have been fully compensated by VVMTA for their actual damages incurred. 4.3 Damage and Restoration. Whenever any work or maintenance required or permitted under this Agreement, shall cause damage to any Town or other public or private property, VVMTA, at its sole cost and expense, shall repair or cause to be repaired, the damage and return the subject ROW or other property to a safe and satisfactory condition, and within the following time periods: damage posing a risk to public safety or health — within twenty-four (24) hours; damage to public infrastructure — within five (5) days; damage to private property — within fifteen (15) days. If VVMTA does not repair the damage as described herein, then the Town shall, upon five (5) days' prior written notice to VVMTA, have the right, but not the obligation, to perform or cause to be performed such work on behalf of VVMTA and to charge VVMTA for the actual costs incurred by the Town at the Town's standard rates, including administrative time. VVMTA shall pay to the Town actual costs and expenses incurred by the Town in performing any such work within sixty (60) days following a written demand for payment from the Town. In the case of any emergency impacting the public health and safety, the Town may remove or disconnect the applicable Improvements located in the subject ROW. 4.9 General Warranty. VVMTA warrants that all Improvements installed by it shall be installed in accordance with: (a) generally accepted professional practices and the level of competency presently maintained by others in the same or similar type of work, and in compliance with the Town municipal code and any regulations promulgated thereunder; and (b) the plans and specifications provided by VVMTA to the Town and approved by the Town. Section 5. Hazardous Substances. VVMTA agrees that VVMTA, its contractors, subcontractors, and agents, will not use, generate, store, produce, transport or dispose of any Hazardous Substances on, under, about or within the area of the subject ROW or adjacent property in violation of any Applicable Law. Section 6. Insurance. 6.1 VVMTA shall, at all times during the term of this Agreement, maintain any such liability insurance, whether by commercial policy or self-insurance, as is necessary to meet any liability under the CGIA. 6.2 All of the insurance coverages required in this Section 6, except the Workers' Compensation Insurance and Employers' Liability Insurance, shall for the duration of the construction of Improvements, as presently contemplated or in the future, include the Town as an additional insured. Each of such insurance policies shall contain a waiver of subrogation for the Town's benefit. Further, the insurance coverages identified in this Section 6 will be primary and noncontributory with respect to any insurance maintained by the Town. 6.3 Upon execution of this Agreement and upon any subsequent request by the Town, VVMTA shall provide the Town with a Certificate of Insurance and additional insured endorsements evidencing the coverages required by this November 12, 2024 FINAL Section 6. The Certificate of Insurance shall provide that such insurance will not be altered or canceled by the issuing company without a minimum of thirty (30) days (ten (10) days for non-payment of premium) prior written notice to the Town. Section 7. Governmental Immunity. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, by either Party of any of the immunities, rights, benefits, protections, or other provisions of the Colorado Governmental Immunity Act, C.R.S. §§ 24-10-101, et seq. Section 8. Notices. Any notice, request, or demand required or permitted to be given by either Party to the other under this Agreement, shall be in writing and signed by or on behalf of the Party giving the notice and addressed to the other Party at the address set forth below: If to the Town: Town of Avon Attn: Town Manager P.O. Box 975 Avon, Colorado 81620 ff to VVMTA: Vail Valley Mountain Trails Alliance Attn: Executive Director PO Box 3986 Avon, CO 81620 A Party may by notice in writing given in accordance with the terms of this Agreement change its address for notices, which address shall thereafter be used in place of the former address. Each notice, request, or demand shall be deemed sufficiently given, served, or sent for all purposes hereunder (i) three (3) days after it is mailed by United States certified mail, return receipt requested, with postage prepaid, (ii) upon personal delivery, or (iii) one (1) business day after deposit with any recognized commercial air courier or express service. Section 9. Miscellaneous Provisions. 9.1 Non-exclusive Use. The Parties understand and agree that the Town permits other persons and entities to install utility facilities in the ROW. The Town shall not be liable to VVMTA for any damage caused by those persons or entities. 9.2 Severability. If any provision of this Agreement is held invalid or unenforceable by a court with competent jurisdiction, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 9.3 No Waiver. The failure of either Party to enforce a breach of any provision or term of this Agreement shall not be deemed to constitute a waiver of any such failure or breach, and shall not affect or limit the right of either Party to November 12, 2024 FINAL thereafter enforce such term or provision. 9.4 Governing Law; Exclusive Jurisdiction. The terms of this Agreement shall be governed by the laws of the State of Colorado. All actions and proceedings arising from or related to this Agreement will be litigated in courts having situs within Eagle County, Colorado. The Parties hereto consent and submit to the jurisdiction and venue of any such local or state court. 9.5 Attorneys' Fees. In any action between the Parties to enforce any term of this Agreement, the prevailing Party shall be entitled to recover its expenses, including its reasonable attorneys' fees, from the non -prevailing Party. 9.6 Assignment. VVMTA may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the Town. This Agreement shall be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns. 9.7 Warranty of Authority. Each individual executing this Agreement on behalf of the Town and VVMTA represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of the Town or VVMTA, respectively, and that this Agreement is binding upon the Town and VVMTA. 9.8 No Third -Party Beneficiaries. This Agreement benefits only the Parties hereto and their successors and permitted assigns. There are no third - party beneficiaries. 9.9 Public Disclosure. The Parties acknowledge that this Agreement is public record within the meaning of the Colorado Open Records Act, C.R.S. §§ 24-72-100.1, et seq., and accordingly may be disclosed to the public. 9.10 Amendment of Agreement. No amendments or variations of the terms of this Agreement shall be valid unless made in writing and signed by all Parties hereto. 9.11 Entire Agreement. This Agreement, together with its Exhibit, contains the entire understanding of the Parties and supersedes all verbal or prior written agreements, arrangements, and understandings of the Parties relating to the grant of the limited license contemplated herein. The Parties further intend that this Agreement constitutes the complete and exclusive statement of its terms, and that no extrinsic evidence may be introduced to reform this Agreement in any judicial proceeding involving this Agreement. 9.12 Counterparts. This Agreement may be executed in two (2) counterparts, each of which shall be an original but which shall together constitute one and the same instrument. the remainder of this page was left intentionally blank November 12, 2024 FINAL IN WITNESS WHEREOF, the Town and VVMTA have hereunto executed this Agreement effective as of the date first set forth above. THE TOWN: TOWN ON /Z/V7 By: z I/ Tam N. Underwood, Mayor ATTEST: Miguel Jauregui a nueva, Town Clerk VVMTA: VAIL VALLEY MOUNTAIN TRAILS ALLIANCE By: Print Name: Title: November 12, 2024 FINAL EXHIBIT A The Eagle -Vail trail crossing through Town of Avon property is shown in the yellow shaded section labeled "TOWN". The trail through this section will fit into the US Forest Service classification 3_ Class 3 trail are defined as being 18"-24" wide, continuous and easy to follow, natural and primarily unmodified_ The trail will not gain or lose any considerable elevation through the Avon parcel, it will be relatively flat. It will be constructed using a mini excavator which will be followed by hand crews to establish the final shapes that the excavator is too blunt to accomplish_ The trail runs into the Frontgate property to the east, and the Aidan Group property to the west November 12, 2024 FINAL