TC Resolution 23-05 Approving Temporary Construction Easement Agreement on Lot 12 McGrady Acres, 5469 Nottingham Ranch Road, Avon, COTOWN OF AVON
RESOLUTION NO. 23-05
Series of 2023
A RESOLUTION APPROVING TEMPORARY CONSTRUCTION EASEMENT
AGREEMENT ON LOT 12 MCGRADY ACRES, 5469 NOTTINGHAM RANCH ROAD,
AVON, COLORADO
WHEREAS, the Town of Avon (the "Town") entered into a contract with Mocon Pacific, Inc.
regarding the repair of the Nottingham-Puder Ditch by installing a trapezoidal HDPE liner into the
existing earthen irrigation ditch to eliminate the leaking water issue; and
WHEREAS, Mocon Pacific, Inc provided the Town with an estimate of $744,144 for the
installation of the trapezoidal HDPE liner into the existing earthen irrigation ditch; and
WHEREAS, the trapezoidal HDPE liner must be installed into the existing earthen irrigation ditch
on LOT 12 MCGRADY ACRES, 5469 NOTTINGHAM RANCH ROAD, Avon, Colorado
which requires the granting of a temporary construction easement to Town of Avon, attached
hereto as Exhibit A; and
WHEREAS, Town of Avon also requires an area of land for parking construction equipment and
staging materials in addition to the area of the ditch liner installation on LOT 12 MCGRADY
ACRES, 5469 NOTTINGHAM RANCH ROAD.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF
AVON THAT:
The Town Council of the Town of Avon hereby approves Temporary Construction Easement
Agreement on LOT 12 MCGRADY ACRES, 5469 NOTTINGHAM RANCH ROAD,
Avon, Colorado and authorizes the Mayor to sign the agreement granting an easement to
Town of of Avon attached hereto as Exhibit A.
ACCEPTED, APPROVED AND ADOPTED March 28, 2023.
AVON WN COUNCIL ;SEAL•'
By: By:
Ai Phillips, Mayor Miguel Jau. gfasanue ORA�rk
EXHIBIT A
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
KNOW ALL MEN BY THESE PRESENTS: Presbyterian Parish of Minturn, (Grantor),
whose address is PO Box 4660, Avon, Colorado 81620, in consideration of Ten Dollars ($10.00),
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 PO Box 975, Avon,
Colorado 81620, a non-exclusive temporary construction easement, subject to the terms and
conditions contained in this Temporary Construction Easement Agreement ("Easement
Agreement") to maintain and improve Nottingham-Puder Ditch drainage, park construction
equipment and store materials over and across the tract of land described in paragraph 1 below.
The parties further agree as follows:
1. Grantor owns LOT 12 MCGRADY ACRES, 545 NOTTINGHAM RANCH
ROAD, Avon, Colorado ("Property"). Grantor grants to the Town a temporary construction
easement for the purpose of construction activities including parking equipment and storing
materials on LOT 12 MCGRADY ACRES, 545 NOTTINGHAM RANCH ROAD. The term
of this temporary construction easement shall begin on March 27, 2023 and shall expire and be of
no further force or effect on August 1, 2023 ("Term").
2. Town agrees that it will provide written notice of commencement of construction to
the Grantor prior to commencement of construction. Town shall tender payment in the amount of
Ten Dollars ($10) as the stated monetary consideration above along with tendering the written
notice of commencement of construction. 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 park construction equipment and store
materials.
3. To the extent permitted by law, the Town indemnifies and holds Grantor harmless
against any 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,
Temporary Construction Easement Agreement —Nottingham -Puder Ditch Repair & Equipment Storage
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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 the Nottingham-Puder Ditch Repair Project, all
materials placed by the Town and/or the construction contractor, Mocon Pacific, Inc., 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 Town'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 Nottingham-Puder Ditch Repair Project will
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 the
Nottingham-Puder Ditch Repair Project site, which insurance shall name Presbyterian Parish of
Minturn as an additional insured. The Town shall deliver the certificate of insurance naming
Presbyterian Parish of Minturn 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.
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.
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Grantor: Presbyterian Parish of Minturn / Eagle River Presbyterian Church
PO Box 4660
Avon, CO 81620
Town of Avon: Town of Avon
One Lake Street
PO 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 termination 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 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.
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14. The 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
Agreement on the date first written above.
Dater � 7112 -c I'C
STATE OF )
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COUNTY OF U� )
The foregoing instrument was acknowledged before me this
'"1 aTVA, , 2023, by �WyA Y' S
Witness my hand and official seal. _Mv commission e>
BRENDA EUIZABETH TORRES DW
NOTARY PUBLIC
Pu STATE OF COLORADO
!VOTARY ID 20164037271
1 My Commission Expires November 13, 2024
Ease e greement accepted and approve y e I own.
By:1�6w(-VJAI�Date: 312 $ / 2 3
Am Phil ips, Mayor
Attest:
Miguel Jauregu' C neuva, Town Clerk
Z8 #i day of
�U2.jLi
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