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TC Res. No. 2009-10 APPROVING THE TEMPORARY EASEMENT AGREEMENTD EXHIBIT A RESOLUTION NO. 09-10 SERIES OF 2009 A RESOLUTION APPROVING THE TEMPORARY EASEMENT AGREEMENT FOR A'PARCEL OF LAND, TE -69A, LOCATED AT LOT 69, BLOCK 2, BENCHMARK AT BEAVER CREEK, AMENDMENT 6, FOR THE PURPOSE OF CONSTRUCTING THE EAST BEAVER CREEK BOULEVARD STREETSCAPE IMPROVEMENTS WHEREAS, the Town of Avon entered into an Annexation and Development Agreement with EMD LLC, PVRT NOTT I LLC, PVRT NOTT II LLC, and PVRT NOTT III LLC, dated October 13, 1998, which required in Section 4.3(b)(iii) that the Town of Avon acquire right -of -ways to a portion of East Beaver Creek Boulevard as necessary for improvements to be constructed by Traer Creek Metropolitan District; WHEREAS, the Town Council has previously directed, authorized, and budgeted for acquisition of easements required for the East Beaver Creek Boulevard Streetscape Improvements; WHEREAS, Colorado Revised Statutes section 31- 15- 101(1)(a) provides that municipalities may acquire and hold real property; and, WHEREAS, the Town Council finds that acquisition of the Temporary Easement attached hereto shall promote the health, safety and general welfare of the Avon community by allowing improvements to East Beaver Creek Boulevard that enhance traffic circulation; NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that the temporary easement agreement, TE- 69A, at lot 69, Block 2, Benchmark at Beaver Creek, Amendment 6, for the purpose of constructing the East Beaver Creek Boulevard Streetscape Improvements, is hereby approved by the Town of Avon: ADOPTED THIS �-�' DAY OF da v-CL , 2009. TO OUNCIL T0WN F AVON, C ORADO Ronald C. Wolfe, Mayor 7: \CIP \E Bvr Ck Blvd \6.0 RW Acquisition \6.2 Properties \62.4 Lot 69 \Resolution 09 -10 Temp Easement.doc ,` a� TEMPORARY CONSTRUCTION EASEMENT AGREEMENT KNOW ALL MEN BY THESE PRESENTS: That Bruce H. & Mary Joe Allen, and Charles C. Allen & Susan D. Allen, as trustees of the 1983 Charles C. Allen and Susan D. Allen Revocable Inter Vivos Trust, (Grantor), whose address is 51 Beaver Creek Place, in consideration of TWO THOUSAND SIX HUNDRED SIXTEEN DOLLARS ($2,616.00), 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 - exchrsive temporary construction easement, subject to the terms and conditions contained in this Temporary Construction Easement Agreement ("Easement Agreement') to establish and maintain site grades and drainage compatible with the East Beaver Creek Boulevard Streetscape Improvements project over and across the tract of land described in paragraph 1 below. The parties further agree as follows: 1. Grantor owns Lot 69, Block 2, Benchmark At Beaver Creek, Amendment No. 6, Avon, Colorado ( "Property"). Grantor grants to the Town a temporary construction easement for the purpose of constructing the improvements as described in Exhibit A attached hereto. The teen of this temporary construction easement shall begin on April 1, 2009, and shall expire and be of no further force or effect on December 31, 2009 ( "Term"). As part of this easement agreement, the Town agrees that there will be no encroachment or interference into the existing parking lot located on the Property during construction or upon the completion of construction activities and that access from Beaver Creek Boulevard will not be eliminated except as may be necessary on a temporary basis to complete construction. 2. Town agrees that it will provide written notice of commencement of construction to the Grantor at least 30 days prior commencement of construction. Town shall tender payment in the amount of TWO THOUSAND SIX HUNDRED SIXTEEN DOLLARS ($2 "616.00) as the stated monetary consideration above along with tendering the written notice of commencement of construction. In the event that construction does not commence for the East Beaver Creek Boulevard Streetscape Improvements in 2009, then Town shall have no obligation to tender the monetary consideration stated in this Temporary Construction Easement Agreement. Town agrees to use best efforts to schedule the timing of construction to coincide with off-season to avoid conflicts and business disruption that such construction may cause during peak season times. In the event that Grantor seeks improvements to the Property during the Term which conflict with this Temporary Construction Easement Agreement, Town agrees to consider modifications to this easement agreement that accommodate Grantor's desire to improve the Property while allowing the Town to Sample TemporarN Construction Easement Agreement 2009 only Page 1 of 4 construct the improvements described in Exhibit A. 3. To the extent permitted by law, the Town indemnifies and holds Grantor harmless against anv claims or liabilities related to the Town's activities on the Property pursuant to the easements granted hereunder. The Town, its planners, engineers, surveyors, architects and other agents and consultants shall be prohibited from taking any action or omission that subjects the Property to liens of any kind, including, but not limited to, construction, mechanic's or materialmen's liens (collectively, "Liens"). In the event that the Property becomes subject to any such Liens directly or indirectly through the action or inaction of the Town, its planners, engineers, surveyors, architects or other agents or consultants, the Town shall discharge or bond off any such Liens within five (5) days of the imposition of any such Liens and failure to do so shall constitute a default hereunder. This provision shall survive termination of the easement granted hereunder. 4. 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. 5. Upon completion of construction of East Beaver Creek Boulevard Street Improvements, 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 use of the Property, except as specified in the attached Construction Plans. If the Town fails to return the Property to the condition that existed prior to the ToNvn'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 Grantor for any and all costs reasonably incurred by Grantor in returning the Property to its prior condition or in establishing grading and drainage on the Property consistent with the attached Construction Plans. 6. The construction documents for the East Beaver Creek Boulevard Streetscape project will be modified to include the Property in the project limits, and the contractor will be required to provide general liability insurance, covering activity on the Property, consistent with the remainder of East Beaver Creek Boulevard Streetscape project site, which insurance shall name Bruce H. & Mary Joe Allen, and Charles C. Allen & Susan D. Allen, as trustees of the 198' ) Charles C. Allen and Susan D. Allen Revocable Inter Vivos Trust as an additional insured. The Town shall deliver the certificate of insurance naming Bruce H. & Mary toe Allen, and Charles C. Allen & Susan D. Allen, as trustees of the 1983 Charles C. Allen and Susan D. Allen Revocable Inter Vivos Trust as an additional insured prior to its use of the Property. 7. 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. Sample Temporary Construction Easement Agreement 2009 only Page 2 of 4 r, 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. Grantor: Bruce Allen PO Box 861 Vail, CO 81658 with a copy to Wendell B. Porterfield, Jr. P.O. Box 3149 Vail, CO 81658 Town of Avon: Town of Avon One Lake Street P.O. Box 975 Avon, CO 81620 Attn: Town Engineer 9. Grantor 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) sell and convey the Property or any portion of it subject to this Easement Agreement. 10. Grantor 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 tennination 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 Sample Temporary Construction Easement Agreement 2009 only Page 3 of 4 � a , date of this Easement Agreement by any officer, employee, or agent of Grantor 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 Grantor. This Easement Agreement and any amendments to it shall be binding upon the parties and their successors and assigns. 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 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. "I,he 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. IN WITNESS WHEREOF, the Grantor has executed this Temporary Construction Easement Agree cr ent on the date first written above. Date: J41 STATE OF , 0/,06Aq F ss. COUNTY OF , ) The foregoing instrument was acknowled Vlo t- 2009, by ALa r rz)r 61 4-4 T�✓0. Wi ness rn hand and official seal. My i Notary Public pORTF iaa day of j N OFC0*vc My Commission Expires 08110(2010 Easem t A reement accepted a d approved by the Town of Avon By: - -- _ Date: -q l i g 1c) Rot C. Wolfe Attest: act C 11,1 ty cKenrry. ow Clerk Sample Temporary Construction Easement Agreement 2009 only Page 4 or 4 OF AQ r� Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Justin Hildreth, Town Engineer Shane Pegram, Engineer 11 Date: March 17, 2009 Re: Resolution No. 09-10, Approving the Temporary Easement Agreement for a Parcel of Land, TE -69A, Located at Lot 69, Block 2, Benchmark at Beaver Creek, Amendment 6, For the Purpose of Constructing the East Beaver Creek Boulevard Streetscape Improvements Summary: Attached to this Memorandum is Resolution 09 -10, a Resolution that approves the Temporary Easement Agreement necessary to construct the East Beaver Creek Boulevard Streetscape Improvements on lot 69, Block 2, Benchmark at Beaver Creek, Amendment 6. Columbine Bakery and Dominos Pizza are located on Lot 69. Discussion: The 3rd Amendment of the Annexation and Development Agreement for The Village at Avon, between the Town of Avon and Traer Creek Metro District, requires the Town to design and obtain easements to install the East Beaver Creek Blvd. Streetscape Improvements by April 15, 2009. Traer Creek Metro district is required to pay the Town "out of pocket" costs for obtaining the necessary easements. The Annexation and Development Agreement also requires that construction is started by April 15, 2009 and completed by December 31, 2009. The East Beaver Creek Boulevard Streetscape Improvement plans propose to construct a new sidewalk along the south side of East Beaver Creek Blvd next to Lot 69. The new sidewalk will be constructed within Town of Avon Right of Way. The parcel of land, TE -69A, allows construction activities necessary to complete the sidewalk. Financial Implications: There is $300,000 budgeted for the East Beaver Creek Blvd. Streetscape Project. The $2,616 required to obtain the Temporary Easement will be paid upon notification that Traer Creek Metro District will construct the project. The Annexation and Development Agreement requires the Metro District to reimburse the Town for money spent on obtaining the easement. Recommendation: Staff recommends approval of Resolution No 09 -010. Proposed Motion: I move to approve Resolution Approving the Temporary Easement Agreement for a Block 2, Benchmark at Beaver Creek, Amendment 6 Beaver Creek Boulevard Streetscape Improvements Town Manager Com Attachm"tts: ExhibWA Resolution 09 -10, Series of 2009 Exhibit B Temporary Easement Agreement, TE -69A No. 09 -10, Series of 2009, A Resolution Parcel of Land, TE -69A, Situated in Lot 69, For the Purpose of Constructing the East