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12-11-2014 License Agreement-2810 O'Neal Spur-Twin Bears TownhomesLICENSE AGREEMENT AND PURCHASE OFFER AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND THE TWIN BEARS TOWNHOMES HOMEOWNERS ASSOCIATION FOR THE PURCHASE OF PROPERTY LOCATED AT 2810 O'NEAL SPUR, DESCRIBED BELOW, AND THE INTERIM GRANTING OF AN ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT AND MAINTAIN A RECREATION TRAIL ON PRIVATE PROPERTY 1.0 PARTIES. The parties to this agreement ( "Agreement ") are the TOWN OF AVON, COLORADO, a Colorado home rule municipality ( "Licensee ") and the TWIN BEARS TOWNHOMES HOMEOWNERS ASSOCIATION ( "Owner"). This Agreement is effective upon execution by the Owner and Licensee on the date indicated below. 2.0 RECITALS AND PURPOSE. 2.1. The Owner is the owner of certain property located in the Town of Avon, Eagle County, Colorado, commonly known as Lot 3, Block 2, Wildridge Subdivision, Avon, Colorado ( "Property'). 2.2. The Licensee has expressed a desire to encroach upon and occupy a portion of the Property for the purpose of installing, constructing, and maintaining a public recreation trail ( "Trail "). 2.3. The Trail has already been constructed by the Town of Avon on the subject property and is currently in use by the general public. No further construction or alteration of the Trail shall be permitted without the express written consent of both parties to this Agreement. 2.4. The Owner 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, 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. 2.5. Licensee proposes, as part of this agreement, to purchase the area of the Property subject to the license granted in the Agreement for the sum of Eight Thousand Dollars ($8,000). The Licensee agrees to assume and pay all costs associated with such conveyance, including but not limited to survey, subdivision application preparation, closing costs, administrative and legal costs. Licensee and Owner intend to cooperate in good faith to complete the Twin Bears Townhome License Agreement for Town Trail August 19, 2014 Page 1 of 5 conveyance described in this paragraph prior to the termination of this Agreement. 2.6. A survey delineating the license area for the Trail shall be completed by the Town of Avon by not later than September 5, 2014. 2.7. Owner's obligation to convey the license area shall be subject to Owner's approval of the subdivision plat of the area to be conveyed conditions associated with conveyance of the Owner may withhold in Owner's sole discretion. 3.0 TERMS AND CONDITIONS. to be purchased by Licensee survey, legal description, and and any other terms and/or license area which approval 3.1. The Owner hereby grants to the Licensee a license for the encroachment and occupation described as follows: The maintenance and use of the Trail in its current location and alignment as constructed on the Property plus one foot extending outward on either side of the Trail as currently constructed for maintenance purposes, along with the right of the Licensee and general public to access and use the Trail for hiking and biking purposes in accordance with any municipal regulations adopted by the Licensee in its capacity and authority as the governing municipal jurisdiction. 3.2.The encroachment and occupation as specified in ¶ 3.1 above shall continue from the date of this Agreement until December 31, 2014. 3.3. The Licensee expressly agrees to, and shall, indemnify and hold harmless the Owner and any of its officers, agents, or employees from any and all claims, damages, liability, or court awards, including costs and attorney's fee 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 Property. 3.4. The Licensee agrees to maintain and repair the Trail placed or located on the 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 Owner. The Licensee agrees that the Owner is not liable, and will not assume any liability, responsibility, or costs for any damage, maintenance, or repair of the Trail erected or maintained by the Licensee under this Agreement. 3.5. In the event that Licensee does not purchase and acquire the property underlying the Trail from the Owner prior to the termination of this Agreement, the Licensee agrees to remove the Trail described in 13.1 and repair and reconstruct any damage to the Property upon termination of this Agreement Twin Bears Townhome License Agreement for Town Trail August 19, 2014 Page 2 of 5 returning the Property to its original condition at the cost and expense of the Licensee and at no cost or expense to the Owner. In the event that Licensee does not remove the Trail and repair and restore Property to the condition prior to the initial construction of the Trail, then Licensee shall be deemed to have abandoned the Trail and any rights thereto and the Owner may proceed to remove the Trail. The Owner may seek recovery of all reasonable costs incurred for the removal of Trail from the Property, repair of damages to Property, and restoration of Property, including but not limited legal costs and attorney fees. 3.6. 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 Owner 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 Owner harmless in accordance with this Agreement. 4.0 ASSIGNMENT. This Agreement shall not be assigned by the Licensee without The prior written consent of the Owner which may withhold its consent for any reason. 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 Property for the Trail. 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. 'twin Bears Townhome License Agreement for Town Trail August 19, 2014 Page 3 of 5 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 Owner shall incur no cost or expense attributable to or arising from the construction, maintenance, or operation of the Trail 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. 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 Owner 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 Property subject to this Agreement, Owner shall be entitled to recover any and all legal costs and attorney's fees incurred. [SIGNATURE PAGE FOLLOWS] Twin Sears Townhome License Agreement for Town Trail August 19, 2014 Page 4 of 5 THIS AGREEMENT IS READ, UNDERSTOOD AND AGREED BY THE PARTIES. DATED SEPTEMBER 12, 2414. ATTEST: 1 " ' � Debbie Hoppe,toWn Clerk TOWN OF AVON, Licensee: By: Virginia C. O ger, Town M n ger Town of Av. l; By: Print Name: Title: Address: Digitally signed by Gary Oleso DN:cn=Gary0leN@MFCO email= GVOLE50N254 O -US Date: 2014.12.11 12:54:40 -0J'00'