05-09-2017 Millsmore, LLC Revocable Encroachment License AgreementAN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND MILLSMORE, LLC FOR
THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT,
AND MAINTAIN LANDSCAPE AND PARKING IMPROVEMENTS ON TOWN -OWNED
RIGHT-OF-WAY and PROPERTY.
1.0 PARTIES. The parties to this agreement ("Agreement") are the TOWN OF AVON,
COLORADO, a Colorado home rule municipality (the "Town") and MILLSMORE, LLC
(the "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 the Lot 4, Buck Creek PUD and
Subdivision ("Town Property").
The Town is the owner of the right-of-way on Swift Gulch Road, defined in this
agreement as the unimproved area between the road and the adjacent
properties, beginning west of Lot 4 and ending as a continuation of the
easternmost property line of Lot 67 ("Right -of -Way").
2.2. Town and Licensee entered into a Revocable Encroachment License in 2012 for
the Town Property and the Licensee built a parking lot on the Town Property for
the purpose of temporary parking and landscape improvements.
2.3. The Licensee has expressed a desire to remove landscaping area on Lot 67, and
is required to mitigate the loss by improving the landscaping on Lot 4 and the
Right -of -Way.
2.4. Licensee agreed to construct a sidewalk ("Public Improvement") along
Nottingham Road connecting the existing sidewalk to Swift Gulch road, which the
Town acknowledges is a valuable public benefit that promotes pedestrian
opportunities and enhances traffic safety which promotes goals of the Town's
Comprehensive Plan. Town further finds that the Public Improvement and
landscaping enhancements to the Town Property provide benefits and value
which equal or exceed the value of the Town Property that the Town is providing
for use by Licensee for parking and dumpster use.
2.5. Licensee agrees to install landscaping improvements in the Town Property and
the right-of-way as depicted in Exhibit A: Landscaping Plan, which the Town
acknowledges is an adequate offset to the landscaping area lost in constructing
additions to the building on Lot 67.
2.6. The Town is willing to update the 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.
3.0 TERMS AND CONDITIONS.
3.1. The Town hereby amends and restates in its entirety the grant to the Licensee of
a revocable license for the encroachment and occupation described as follows:
a paved parking lot with approximately six parking spaces (to be occupied with
parked vehicles), landscape plantings (trees, shrubs, and ground cover),
retaining walls, potential light fixtures (if any), and a dumpster enclosure
("Private Improvements"); and the updated landscape plantings on Lot 4 and
the right-of-way as such Private Improvements are depicted in Exhibit A:
Landscape Improvements; 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 Public and
Private Improvements identified in this 13.1, no other encroachment, structure,
improvement, vehicle, fence, wall, landscaping, or any other real or personal
property shall be erected, installed, constructed, parked, stored, kept, or
maintained in any way or fashion on the Town Property, including but not limited
to storage sheds, carports, playground equipment, motor vehicles, snowmobiles
or other recreational equipment.
3.2. The encroachment and occupation of Private Improvements as specified in 13.1
above shall continue from the date of this Agreement to the time that this
Agreement is terminated. Due to the significant investment by the Licensee, the
Town intends that the period of this amended license will run for a minimum of
five years from the date this License Agreement is executed. Notwithstanding
the foregoing, the Town may terminate this Agreement at any time if the Town
Council, following a duly noticed public hearing, makes a legislative
determination that removal of the Private Improvements is necessary to protect
the public health, safety, or welfare of the Avon community. 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 legislative 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. The
Town may also terminate this Agreement at any time in the case of a declaration
by the Town Council for the Town of Avon that a public safety emergency exists
by giving written notice to the Licensee five (5) days in advance of the effective
date of termination.
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
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 and shall be responsible for ensuring the proper pruning or replacement as
necessary to present a healthy landscape condition. Upon termination the
Licensee may be required to relocate trees and shrubs planted on Lot 4, Buck
Creek PUD and in the Swift Gulch Right -of -Way in order to comply with the
previously approved landscape plan for Lot 67, Block 1, BMBC.
3.7. The Licensee agrees upon termination of the license agreement to relocate the
dumpster enclosure from Lot 4, Buck Creek PUD onto Lot 67, Block 1, BMBC in
order to comply with the previously approved site development plan.
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 paragraph 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.
3.10. 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 $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.
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 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
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]
DATED MAY 9, 2017.
TOWN OF AVON:
By:
ehnie Fancher, Mayor
Approved as to Form,,,,--~
to
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Debbie Hoppe, To n Cerk Eric J. Heil, Esq., T orney
LICE SE
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A ess: 20 Nottingham Road
Avon, CO 81820
STATE OF COLORADO }
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COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
2017, personally by _ -T002-5 PaA 'ch
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