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06-09-2011 Revocable License Ag.Yerf LLCREVOCABLE LICENSE AGREEMENT BETWEEN TOWN OF AVON AND YERF, LLC AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND YERF, LLC FOR THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT, AND MAINTAIN AN OUTDOOR PATIO AND SEATING AREA 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 ( "Town ") and Yerf, LLC ( "Licensee ") (d /b /a Ticino Italian Restaurant). 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 Avon Mall right -of -way ( "Town Property "). 2.2. The Licensee has expressed a desire to encroach upon and occupy the Town Property for using and maintaining an outdoor patio area for customer seating which is delineated by a split rail fence and planters, adjacent to Unit 127, Avon Center at Beaver Creek, as such area is also depicted on Exhibit A attached hereto. 2.3. 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 of an outdoor patio area as depicted in Exhibit A. The area of the license ( "License Area ") is marked by a concrete slab measuring approximately 44' x 10' and is delineated by a split rail fence and planters adjacent to Unit 127, Avon Center at Beaver Creek. Licensee will utilize the License Area as part of the liquor license premises for liquor service in connection with the liquor license held by Ticino, LLC, which is also Avon/Ticino Revocable License Agreement June 9, 2011 ejh Page 1 of 7 depicted in Exhibit A. The split rail fence, planters, tables, seating and any customary non - fixture items associated with outdoor dining which are placed within the License Area shall constitute the "Private Improvements ". The cement patio shall not constitute the Private Improvements. 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 Private Improvements identified in this 113.1, 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 13.1 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 Avon/Ticino Revocable License Agreement June 9, 2011 ejh Page 2 of 7 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 sidewalk 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. Licensee shall keep and maintain the Town Property and License Area in a good, clean and healthful condition, making repairs as necessary at Licensee's sole cost and expense. Licensee shall be responsible for snow removal at its sole cost and expense. Licensee may, with consent of the Town staff and at its sole cost and expense, at any time and from time to time make such alterations, changes, replacements, improvements and additions to the Town Property in the License Area as it may deem desirable. Any such replacements, improvements and additions shall comply with applicable law and ordinance, including the American with Disabilities Act. 3.7. 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. Avon/Ticino Revocable License Agreement June 9, 2011 ejh Page 3 of 7 3.8. 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 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. 3.9. 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 $2,000,000.00 per occurrence. Such policy or policies shall name the Town as an "additional insured" and shall include a provision requiring the insurer to give the Town thirty (30) days notice prior to cancellation. Certificates of insurance issued by the insurer shall be filed with the Town within ten (10) days after the date of this Agreement is entered into by License, and this Agreement shall not become effective until such certificate is received and approved by the Town with the exception that the Licensee's failure to take such steps to insure the premises shall not waive, affect, or impair the obligation of the Licensee to indemnify or hold the Town harmless in accordance with this Agreement. 3.10. 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 Avon/Ticino Revocable License Agreement June 9, 2011 ejh Page 4 of 7 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 Avon/Ticino Revocable License Agreement June 9, 2011 ejh Page 5 of 7 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Avon/Ticino Revocable License Agreement June 9, 2011 ejh Page 6 of 7 DATED THIS 10 DAY OF J4,t,e- .20 It TOWN OF AVON: M ATTEST: 3 n2c Town r or Deputy T wn Clerk (i) Toanger Tb4n of Avon Approve to Form: A For 6yrn A orney's Office LICENSEE: Print Name: /I 4r Address: , aO (ids: "e-e-, C-zWgk- /tom Iq ✓O 17 cc P16 V STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The f regoing instrument was acknowledged before me this le- , 20 it , personally C lu (SEAL) fy�c Ir of ry Public Commission expires: Avon/Ticino Revocable License Agreement June 9, 2011 ejh Page 7 of 7 * Q f**M 4 day of by O • WEI 7 i-m a • C 'M1y rye ' olp ` rA +�.. 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