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09-23-2014 License Agreement For Private Improvements On A Portion of Avon Road Right-Of-Way w Ord. No. 14-13LICENSE AGREEMENT FOR PRIVATE IMPROVEMENTS ON A PORTION OF AVON ROAD RIGHT -OF -WAY 1.0 PARTIES. The parties to this agreement ( "Agreement ") are the TOWN OF AVON, COLORADO, a Colorado home rule municipality ( "Town ") and HOFFMANN COMMERCIAL PROPERTIES, LLC ( "Licensee'). This Agreement is effective upon execution by the Licensee and following execution by the Mayor 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 Avon Road. A portion of Avon Road that is subject to this Agreement is more specifically described on Exhibit to License: Private Improvements ( "Exhibit ") and such portion of Avon Road shall be referred to as the "Town Property ". 2.2. The Licensee has expressed a desire to encroach upon and occupy the Town Property for the purpose of installing, constructing, and maintaining certain temporary landscape improvements. 2.3. Licensee agrees to construct public parking and landscaping ( "Private Improvements ") on the Town Property, which the Town desires and acknowledges is a valuable public benefit that 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 Municipal 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 on the Exhibit; 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 Agreement 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 the Exhibit, no other encroachment, structure, improvement, vehicle, fence, wall, landscaping, or any other real or personal property shall be erected, installed, constructed, parked, License Agreement — Avon Rd. HCRE Parking Lot September 23, 2014 Page 1 of 6 stored, kept, or maintained in any way or fashion on the Town Property. As a condition to the license granted in this Agreement, Licensee shall construct the Private Improvements as depicted on the Exhibit, which Private Improvements shall be constructed according to Town's standards and which shall be completed by November 15, 2015 and Licensee hereby conveys a perpetual access easement ( "Access Easement ") across the area depicted as the "Access Easement Area" on the Exhibit, which Access Easement shall run with the land and shall survive the termination or expiration of this Agreement. 3.2. The encroachment and occupation of Private Improvements as specified in ¶ 3.1 above shall continue from the date of this Agreement for a period of NINETY - NINE (99) YEARS, until September 23, 2113, unless earlier terminated in accordance with the terms of this Agreement. Town may terminate this Agreement at any time, with or without cause, upon tendering reimbursement payment in full for the cost ( "Cost') of the Private Improvements without any depreciation. The Cost of Private Improvements shall be determined as follows: Upon completion of the Private Improvements and no later than December 31, 2015, Licensee shall submit to the Town documentation of Cost associated with completion of the Private Improvements. Cost may include construction, engineering, design, testing, inspection, survey and legal expenses. Town shall have thirty (30) days from the date of receiving documentation of Cost to submit a written objection, which objection shall be limited to inadequacy of the documentation or costs not directly related to the Private Improvements. If Town does not submit a written objection then the Cost of the Private Improvements as submitted by Licensee shall be deemed accepted by the Town. If Town objects, then Licensee shall submit additional documentation to evidence the Cost of the Private Improvements within thirty (30) days. Notwithstanding the foregoing, Town and Licensee agree that Town's obligation to tender a reimbursement payment of Cost as a condition of early termination shall not exceed ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00). 3.3. 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 that the Private Improvements shall be accessible and open to parking by the general public without charge and that overnight parking shall not be permitted without consent of the Town. Limiting parking to periods of time shall be allowed (e.g. a 2 -hour parking limit). The Licensee agrees to erect and maintain appropriate signage for parking. The Licensee agrees to provide private enforcement of parking regulations consistent with this Agreement and acknowledges that Town may provide parking enforcement assistance in a manner consistent with, and according to, Town policies as is provided for other private commercial parking areas open to the general public. 3.4. The Licensee agrees to remove or cover graffiti or other damage caused to the Private Improvements 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, License Agreement — Avon Rd. HCRE Parking Lot September 23, 2014 Page 2 of 6 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. 3.6. 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. 3.7. 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 maintenance, snow removal or other public works activities performed by or on behalf of the Town. 3.8. 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. 3.9. 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 License Agreement — Avon Rd. HCRE Parking Lot September 23, 2014 Page 3 of 6 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 reasonable attorney fees. 3.10. 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 $1,000,000.00 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. 3.11. 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 TERMINATION FOR DEFAULT. Town may elect to terminate this Agreement and revoke the license for encroachment on Town Property in the event that Licensee defaults under any provision of this Agreement provided that Town first provides written notice describing the default and Licensee fails to cure by 5:00 p.m. Mountain Time on the third business day after the date of the written notice of default if such default involves a failure to permit parking by the general public in accordance with % 3.3 or a failure to provide and maintain insurance required by % 3.10 or fails to cure within thirty (30) days after the date of a written notice of default for all other defaults in this Agreement. 5.0 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. 6.0 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. License Agreement — Avon Rd. HCRE Parking Lot September 23, 2014 Page 4 of 6 7.0 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. 8.0 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. 9.0 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. 10.0 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. 11.0 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 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. 12.0 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. 13.0 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] License Agreement — Avon Rd. HCRE Parking Lot September 23, 2014 Page 5 of 6 DATED SEPTEMBER 23, 2014. ATTEST: f Debbie Hoppe,,To n C Jerk STATE OF �( �Mt COUNTY OFL`LJ TOWN OF AVON: By: Rich Carroll, Mayor A.�phs to Form: <1 Eric J. eil, To Attorney LICENSEE: By: Name:�)kA Title:_ ofed jAC.JLG: Address: PO Box 1980 Avon, CO 81620 The foregoing instrument was acknowledged before me this _day of 20, personally by (SEAL) Commission expires: LAURA J, MERZ Notary Public, Notary Seat St�aate of Missouri 5t, LOUIS City Commisslon # 14440307 My Commission Expires January 28, 2018 License Agreement — Avon Rd. HCRE Parking Lot September 23, 2014 Page 6 of 6 YN TOWN OF _ I / AVON / / • PROPERTY Rxx 4, GHRISiY R5 me Ln A WX GAR AR 9 a TO N OF D i '= .R»� LOT 21, BLOCK A N n."r Y�� e,xcren BENCHMARK AT BEAVER U °I rvT°] l' CREEK SUBDIVISION yP. ROPERTY \ > "'R' BENCHMARK INVESTORS EEC l� Eg yy L sry MIS Y `•` \g` 41 , 'WAYrr Y ury C• FSg -12V.. - NEW P KING ' f.NL*' AR ea EXHIBIT TO LICENSE w� hy=Y - Iff PRIVATE IMPROVEMENTSo •Y _ - L1 0 Rxx 4, GHRISiY R5 me Ln A WX GAR AR 9 a TO N OF D i '= .R»� LOT 21, BLOCK A N n."r Y�� e,xcren BENCHMARK AT BEAVER U °I rvT°] l' CREEK SUBDIVISION yP. ROPERTY \ > "'R' BENCHMARK INVESTORS EEC l� Eg yy L sry MIS Y `•` \g` 41 , 'WAYrr Y ury C• FSg -12V.. - NEW P KING ' f.NL*' AR ea EXHIBIT TO LICENSE w� hy=Y - Iff PRIVATE IMPROVEMENTSo •Y _ - L1 TOWN OF AVON ORDINANCE 14 -13 SERIES of 2014 AN ORDINANCE APPROVING AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND HOFFMANN COMMERICAL PROPERTIES LLC FOR THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT, AND MAINTAIN PRIVATE IMPROVEMENTS ON TOWN - OWNED RIGHT- OF-WAY AND PROPERTY WHEREAS, the Town Council has authority to grant revocable encroachment licenses for Town owned public property and/or right -of -ways; WHEREAS, the Town Council conducted a public hearing on July 22, 2014, then continued such public hearing to August 26, 2014, then continued the public hearing to September 9, 2014, then continued such public hearing to September 23, 2014; WHEREAS, the Town Council fords that the grant of a revocable encroachment license to construct parking open to the general public on a public property adjacent to the Christy Sports western parking lot and on a portion of Avon Road will promote the Avon Comprehensive Plan and promote economic vitality in the Avon commercial core and will thereby promote the healthy, safety and general welfare of the Avon community; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Revocable License Agreement Approved. The attached Revocable License Agreement is hereby approved and accepted. Section 3. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and Town Clerk are authorized to execute documents approved in this Ordinance and take such other actions as may be reasonably necessary to implement the actions in this Ordinance. Section 4. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall Ord. No 14 -13 Approving Revocable License Agreement September 18, 2014 Page 1 of 3 not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term "provision" means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term "application" means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 5. Effective Date. This Ordinance shall take effect thirty days after public notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. [Signature page follows] Ord. No 14 -13 Approving Revocable License Agreement September 18, 2014 Page 2 of 3 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for July 22, 2014 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado, on July 15, 2014. �J Rich Carroll, Mayor Published by posting in at least three public places in Town and posting at the office of the Town Clerk at least six days prior to final action by the Town Council. ATTEST: Debbie Hoppe, TAA Clerk APPR D AS TO FO O � ric . H ' , own Attorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on September 23, 2014. Ric Carroll, or Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk. ATTEST: Debbie Hoppe, TowA Merk Ord. No 14 -13 Approving Revocable License Agreement September 18, 2014 Page 3 of 3