10-16-2014 Agreement Between TOA and Benchmark Investors, LLCAN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND BENCHMARK
INVESTORS, LLC FOR THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO
INSTALL, AND MAINTAIN PRIVATE IMPROVEMENTS ON TOWN -OWNED RIGHT -OF -WAY
and PROPERTY SURROUNDING "THE ANNEX" BUILDING
1.0 PARTIES. The parties to this agreement ( "Agreement ") are the TOWN OF AVON,
COLORADO, a Colorado home rule municipality ( "Town ") and BENCHMARK
INVESTORS, LLC ( "Licensee "). This Agreement is effective upon execution by the
Licensee and following execution by the Town Manager on the date indicated below.
2.0 RECITALS AND PURPOSE.
2.1. The Town is the owner of certain property located in the Town of Avon, Eagle
County, Colorado, commonly known as Beaver Creek Place and Lot 65A, Block
2, Benchmark at Beaver Creek Subdivision, and more specifically described on
Exhibit A to License Agreement ( "Exhibit A ") and referred to as the "Town
Property ".
2.2. The Licensee has installed landscaping improvements occupying the Town
Property, including trees, shrubs, boulders, and perennials.
2.3. Licensee has constructed certain landscaping ( "Private Improvements ") along
the Beaver Creek Place Right -of -Way and Lot 65A, which the Town desires and
acknowledges is a valuable public benefit that promotes the aesthetic values of
the area and promotes goals of the Town's Comprehensive Plan. Town further
finds that the Private Improvements on Town Property provide benefits and value
that equal or exceed the value of the Town Property that the Town is providing
for use by Licensee.
2.4. The Town is willing to grant a revocable license to the Licensee under the terms
and conditions as hereinafter specified in this Agreement provided that nothing in
this agreement shall waive or modify any obligation to seek building permits,
right -of -way permits (including traffic control), variances, or other approval
necessary to meet any obligation imposed by law. The Licensee remains
obligated to apply for and obtain all necessary permits and approvals, pay all
required fees, and comply with all applicable local laws, including but not limited
to any applicable provisions in the Avon Munici,pn! Code.
3.0 TERMS AND CONDITIONS.
3.1. The Town hereby grants to the Licensee a revocable license for the
encroachment and occupation described as follows: landscape plantings (trees,
shrubs, and ground cover), retaining walls, as such Private Improvements are
depicted in Exhibit A; provided, however, that nothing in this Agreement is
intended to waive, alter, modify, or permit any violation of any local law
applicable within the Town of Avon. To the extent that the location or other
specifications of this License or any exhibit conflicts with local laws, the local law
shall govern. Except for the encroachment and occupation of the Private
Improvements identified in this ¶ 3.1 and depicted on Exhibit A, no other
encroachment, structure, improvement, vehicle, lance, wall, landscaping, or any
Annex Building Landscaping License Agreement Page 1 of 6
other real or personal property shall be erected, installed, constructed, parked,
stored, kept, or maintained in any way or fashion on the Town Property.
3.2. The encroachment and occupation of Private Improvements as specified in ¶ 3.1
above shall continue from the date of this Agreement to the time that this
Agreement is terminated. The Town may terminate this Agreement at any time if
the Town Council, after conducting a hearing and providing at least twenty (20)
days prior written notice to Licensee of such hearing, makes a determination that
removal of the Private Improvements is necessary to protect the public health,
safety, or welfare of the Avon community, which determination shall be in the
Town Council's sole discretion. At such time as the Town Council makes a
determination that removal of the Private Improvements is necessary, the Town
Council shall also make a determination regarding the reasonable period of time
within which the Private Improvements must be removed. Except in the case of
a public safety emergency or where a shorter period of time is justified due to the
nature of the Private Improvements, the Licensee shall customarily not be
required to remove the Private Improvements within less than thirty (30) days of
notice to the Licensee. Town may also elect to terminate this Agreement upon
twenty (20) days written notice and accept the Private Improvements on Town
Property in its then current condition (i.e. accept "as is ") and the Licensee shall
thereafter be relieved of any obligation to maintain, remove and /or provide
insurance for such Private Improvements on Town Property and ownership of
such Private Improvements shall simultaneously and automatically transfer to the
Town.
3.3. The Licensee expressly agrees to, and shall, indemnify and hold harmless the
Town and any of its officers, agents, or employees from any and all claims,
damages, liability, or court awards, including costs and attorney's fees that are or
may be awarded as a result of any loss, injury or damage sustained or claimed to
have been sustained by anyone, including but not limited to, any person, firm,
partnership, or corporation, in connection with or arising out of any omission or
act of commission by the Licensee or any of its employees, agents, partners, or
lessees, in encroaching upon the Town Property. In particular and without
limiting the scope of the foregoing agreement to indemnify and hold harmless,
the Licensee shall indemnify the Town for all claims, damages, liability, or court
awards, including costs and attorney's fees that are or may be awarded as a
result of any loss, injury or damage sustained or claimed to have been sustained
by anyone, including but not limited to, any person, firm, partnership, or
corporation, in connection with or arising out of any claim in whole or in part that
all or any portion of the Private Improvements and encroachment permitted by
this Agreement constitutes a dangerous and /or unsafe condition within a public
right -of -way.
3.4. The Licensee agrees that it will never institute any action or suit at law or in
equity against the Town or any of its officers or employees, nor institute,
prosecute, or in any way aid in the institution or prosecution of any claim,
demand, or compensation for or on account of any damages, loss, or injury either
to person or property, or both, known or unknown, past, present or future, arising
as a result of or form the revocable license granted to the Licensee by this
Agreement. This provision includes but is not limited to claims relating to road
Annex Building Landscaping License Agreement Page 2 of 6
maintenance, snow removal or other public works activities performed by or on
behalf of the Town.
3.5. The Licensee agrees to construct, maintain, and repair the Private Improvements
placed or located on the Town Property by the Licensee or its lessees, agents,
employees, or other persons under the control or direction of the Licensee
pursuant to this Agreement at the cost and expense of the Licensee and at no
cost or expense to the Town. The Licensee agrees to remove or cover graffiti or
other damage caused to the improvement(s) within a reasonable time following
notice or knowledge of such damage or within forty -eight (48) hours of delivery to
the Licensee of a written demand by the Town, whichever is earlier. The
Licensee shall not erect, cause to be erected or permit the erection of any sign,
advertising object, or illustration upon any improvement, structure, fence, or wall
placed or located by the Town Property pursuant to this Agreement and shall
promptly remove any such sign or advertising.
3.6. The Licensee agrees to maintain the landscaping in a healthy condition at all
times during this Agreement and shall be responsible for ensuring the proper
pruning or replacement as necessary to present a healthy landscape condition.
Upon termination of this Agreement the Town may require Licensee to relocate
trees, shrubs, and boulders.
3.7. The Licensee agrees that the Town is not liable, and will not assume any liability,
responsibility, or costs for any damage, maintenance, or repair of any Private
Improvements erected or maintained by the Licensee under this Agreement
unless Town elects to terminate this Agreement and accept the Private
Improvements in writing in accordance with ¶3.2 above.
3.8. The Licensee agrees to repair and reconstruct any damage to the Town Property
upon termination of this Agreement or removal of the Private Improvements
described in ¶ 3.1 and any other improvements erected by the Licensee on the
Town Property and the Licensee shall return the Town Property to its original
condition at the cost and expense of the Licensee and at no cost or expense to
the Town. In the event that Licensee does not remove the Private Improvements
and repair and restore Town Property to the condition prior to this Agreement
within the time period determined in ¶ 3.2 above, then Licensee shall be deemed
to have abandoned the Private Improvements and any rights thereto and the
Town may proceed to remove the Private Improvements. The Town may seek
recovery of all costs incurred for the removal of Private Improvements from Town
Property, repair of damages to Town Property, and restoration of Town Property,
including legal costs and attorney fees.
3.9. The Licensee agrees to procure and maintain, at its own cost, a policy or policies
of insurance protecting against injury, damage or loss occurring on the licensed
premises in the minimum amount of $600,000.00 per occurrence. Such policy or
policies shall name the Town as an "additional insured ". However, the
Licensee's failure to take such steps to insure the premises shall not waive,
affect, or impair any obligation of the Licensee to indemnify or hold the Town
harmless in accordance with this Agreement.
Annex Building Landscaping License Agreement Page 3 of 6
3.10. The Licensee shall be deemed to have intentionally and irrevocably abandoned
and relinquished rights and interest in the Private Improvements in the event that
the Licensee conveys all the Licensee's interest in the property or properties
obtaining access or receiving benefit from the improvements and encroachments
described in this Agreement. The Town shall be entitled to rely upon the public
records of ownership maintained by the office of either the Eagle County Clerk
and Recorder or the Eagle County Assessor in rendering a determination that the
Licensee has abandoned and relinquished the Licensee's rights and interests as
provided by this paragraph. In such event, the Town may remove and demolish
such improvements without notice to the Licensee.
4.0 ASSIGNMENT. This Agreement shall not be assigned by the Licensee without the prior
written consent of the Town which may withhold its consent for any reason; provided that
the Town encourages the Licensee to inform any purchaser of the Licensee's property or
interests of the existence of this Agreement and the Town will promptly consider any
request by the Licensee for assignment of this Agreement to such subsequent
purchaser.
5.0 NOTICES. Any notice required or permitted by this Agreement shall be in writing and
shall be deemed to have been sufficiently given for all purposes if personally served or if
sent by certified mail or registered mail, postage and fees prepaid, addressed to the
party to whom such notice is to be given at the address set forth on the signature page
below, or at such other address as has been previously furnished in writing, to the other
party or parties. Such notice shall be deemed to have been given when deposited in the
United States Mail.
6.0 INTEGRATION AND AMENDMENT. This Agreement represents the entire agreement
between the parties and there are no oral or collateral agreements or understandings.
This Agreement may be amended only by an instrument in writing signed by the parties.
If any other provision of this Agreement is held invalid or unenforceable, no other
provision shall be affected by such holding, and all of the remaining provisions of this
Agreement shall continue in full force and effect. Invalidation of the Agreement in its
entirety shall revoke any authorization, whether explicit or implied to the continuing use
and occupancy of the Town Property for the Private Improvements.
7.0 GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the
State of Colorado and venue for any action arising under this agreement shall be in the
appropriate court for Eagle County, Colorado.
8.0 WAIVER OF BREACH. A waiver by any party to this Agreement of the breach of any
term or provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
9.0 BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon,
the parties, their respective legal representatives, successors, heirs, and assigns;
provided, however, that nothing in this paragraph shall be construed to permit the
assignment of this Agreement except as otherwise expressly authorized herein.
10.0 UNDERLYING INTENT AND SCOPE. It is the intent of this Agreement that the Town
shall incur no cost or expense attributable to or arising from the construction,
maintenance, or operation of the Private Improvements and encroachment permitted by
Annex Building Landscaping License Agreement Page 4 of 6
this Agreement and that, in all instances, the risk of loss, liability, obligation, damages,
and claims associated with the encroachment shall be borne by the Licensee. This
Agreement does not confer upon the Licensee any other right, permit, license, approval,
or consent other than that expressly provided for herein and this Agreement shall not be
construed to waive, modify, amend, or alter the application of any other federal, state, or
local laws, including laws governing zoning, land use, property maintenance, or
nuisance.
11.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are
expressly authorized to execute this Agreement on behalf of the Parties and to bind their
respective Parties and that the Parties may rely upon such representation of authority.
12.0 LEGAL FEES AND COSTS. In the event the Town seeks legal action to enforce this
Agreement or to recover reimbursement costs for removal of private improvements from,
repair of any damages, and /or restoration of Town property subject to this Agreement,
Town shall be entitled to recover any and all legal costs and attorney's fees incurred.
[SIGNATURE PAGE FOLLOWS]
Annex Building Landscaping License Agreement Page 5 of 6
DATED THIS Z / DAY OF OCTOBER 2014.
ATTEST:
Debbie Hoppe, T n Clerk
IUD t55cuplr
STATE OF £6�B
COUNTY OF
TOWN OF AVON:
By: 3ti
Virginia Egg , own Manger
App as to Fpr
ric Heil, o n Attorney
LICENSEE:
By:
Jon ite, Author ized representative for
Benchmark Investors, LLC
Address: PO Box 1980
Avon, CO 81620
The foregoing instrument was acknowledged before me this day of
20A, personally by j 6n
a'a ,
Notary Pu c
(SEAL) Commission expires:
Notary LPublic Notary Seal
State of Missourl
St. Louls Clty
My CoCrrlo im ssfonsExpires Januarry 28 2018
Annex Building Landscaping License Agreement Page 6 of 6
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