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04-04-2011 REVOCABLE LICENSE AGREEMENT-LES BORIS,1R EAGLE COUNTY, CO TEAK J SIMONTON Pge: 6 11 40 :24AM REC: $36.00 OOC: $ 201106254 04/09ry/2011 1111111111111111111111111 REVOCABLE LICENSE AGREEMENT AND COVENANT ON LOT 8, WESTERN SAGE PUD, TOWN OF AVON, COLORADO AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND LES BORIS FOR THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT, AND MAINTAIN A MSE RETAINING WALL ON TOWN -OWNED RIGHT -OF -WAY 1.0 PARTIES. The parties to this agreement ( "Agreement ") are the TOWN OF AVON, COLORADO, a Colorado home rule municipality (the "Town ") and Les Boris (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 Wildridge Road East right -of -way ( "Town Property "). 2.2. The Licensee owns Lot 8, Western Sage PUD, Town of Avon, Colorado (also known by street address as 5767 Wildridge Road East, Avon, Colorado) (the "Private Property "). 2.3. The Licensee has expressed a desire to encroach upon and occupy the Town Property for the purpose of installing, constructing, and maintaining a MSE retaining wall in order to serve and benefit the Private Property. 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, 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: MSE retaining wall approximately 6.5 -feet in length located perpendicular to Wildridge Road East on the western side of the driveway serving the Private Property ( "Private Improvements ") as shown in Exhibit A attached hereto. 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. 5767 Wildridge Road License Agreement March 18, 2011 ejh Page 1 of 5 a Except for the encroachment and occupation of the Private Improvements identified in this ¶ 3.1, 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 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, 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 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 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 5787 Wildridge Road License Agreement March 1S, 2011 ejh Page 2 of 5 a 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 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. 3.7. 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 13.1 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 13.2 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. 3.6. 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 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. 4.0 ASSIGNMENT. The Licensee agrees that this Agreement shall be automatically assigned to successors, assigns and heirs of the Private Property upon any conveyance of the Private Property and that any such successor, assigns or heirs of the Private Property shall become the Licensee. 5.0 COVENANT BURDENING LOTS WESTERN SAGE PUD. This Agreement shall benefit and burden the Private Property and this Agreement shall run with the land (i.e. 5787 Wlldrldge Road License Agreement March 18, 2011 ejh Page 3 of 5 the Private Property) until terminated in accordance with the terms provided in this Agreement. 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. 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 bome 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, 5787 Wlldridge Road License Agreement March 18, 2011 eih Page 4 or 5 EXHIBIT A� i NO � f•,•:,...,,.: � �: -_ -__ �_ � �o >:.}::ff.:•:., � - WILDRIDGE R � OAD FAST J � t �::?;:��• � ` _ ,•.try (50' aicnT -oc -war ) ° � •z w. 620 2 Guardrail detail 1 N i NO • i4L � • A •z MOM 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. 14.0 RECORDING. The Parties agree that the Town may record this Agreement in the Office of the Clerk and Record for Eagle County, Colorado. 15.0 NO THIRD PARTY BENEFICIARIES. This Agreement does not, and is not intended, to create any third party beneficiaries. DATED THIS ~ DAY OF IAeC11 , 20A. OF AVp TA \�A� Ar �•Iw�._ knrk � App to 1 ci To or De wn Clerk For Tow omey s Office LICENSEE: By: Print Name: Lc —sc iC /3 o 211 Address: %'1�11,r�cx�S.a. 'U',4,t�iD l STATE OF COLORADO ) L 5W 3 KS ) ss. COUNTY OF EAGLE ) The _ forelgoing instrument was acknowledged before me this .2 S 4-k day of c , 20 l t , personally by Les/ Bon's BRIAN W. NESTOR NOTARY PUBLIC Notary Public STATE OF COLORADO (SEAL) Commission expires: 12 I 1,3 5787 Wildrldge Road License Agreement March 18, 2011 eJh Page 5 of 5