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07-10-2012 Northside Coffee and Kitchen, License Agreement Request for Lot 4, BC PUDI- - • To: Honorable Mayor and Town Council Initials Thru: Patty McKenny, Acting Town Manager (� Eric Heil, Town Attorney From: Jared Barnes, Planner I Date: July 10, 2012 Council Meeting Re: Northside Coffee and Kitchen License Agreement Request for Lot 4, Buck Creek PUD Summary Dominic Mauriello of Mauriello Planning Group, representing the owner of the Northside Coffee and Kitchen business located at Lot 67, Block 1, Benchmark at Beaver Creek Subdivision (Lot 67), approached the Town to enter into a license agreement to construct 6 surface parking space, relocate the existing dumpster enclosure, and relocate and plant additional trees on Lot 4, Buck Creek Subdivision ( "the Property "). The Property is owned by the Town of Avon and was transferred to the Town as part of the Buck Creek PUD approval process. Process After approaching the Town Council to gauge interest in the project, the applicant proceeded with the design review approval process. The applicant moved forward with a Minor Design and Development Plan submittal to the Planning and Zoning Commission (PZC). The Minor Design and Development Plan was approved with conditions by the PZC on June 25, 2012 as discussed later in this memorandum. The applicant has returned to Council with a license agreement similar in format to those previously approved for Ticino's, China Garden, and Lakeside Terrace Condominiums. Background The Applicant approached Staff to gain feedback on and learn the process to construct surface parking spaces on Lot 4, Buck Creek Subdivision ( "the Property"). The Applicant submitted a letter to Staff formally requesting a Town Council meeting. At their February 28, 2012 meeting, the Town Council provided positive feedback on the concept, but consistently commented that the approval hinged on providing a design that complied with the Development Code and received PZC approval. The Property is owned by the Town of Avon and was transferred to the Town as part of the Buck Creek PUD approval process. The Property is zoned for "Public Use" and measures .09 acres (approximately 3,920 square feet), is generally flat, with grades sloping up to Swift Gulch Road. There are three mature trees and some newly planted aspens bordering the Property and Lot 67 immediately to the east, and the rest of the property was recently reseeded. The Property was used for temporary construction parking for contractors working on the new building located on Lot 67. Prior to receiving a Temporary Certificate of Occupancy, the Property was revegetated and closed to vehicles. Northside Coffee and Kitchen received a Certificate of Occupancy on November 17, 2011 and has been successfully operating since opening. 11Page July 10, 2012 Town Council Meeting — Northside License Agreement PZC Review At their June 25, 2012 meeting, the PZC approved a Minor Design and Development plan to construct six (6) parking spaces and an associated drive aisle, relocate the dumpster enclosure from Lot 67, Block 1, Benchmark at Beaver Creek Subdivision (BMBC), extend the existing retaining wall to the north of the Property, and install and relocate plantings on the Property and the Swift Gulch Right -of -Way (ROW). The PZC discussed the proposed reduction in parking space size, reduction in drive aisle width, and necessity of the plan to relocate the dumpster enclosure. In addition, the PZC considered the proposed landscaping and its ability to effectively screen the parking lot and adjacent building. The PZC also considered an Alternative Equivalent Compliance (AEC) request to reduce the amount of perimeter landscaping required by Title 7 of the Avon Municipal Code. Ultimately, the PZC approved the proposed "Minor Design and Development Plan" and "Alternative Equivalent Compliance" applications for Lot 4, Buck Creek PUD and Lot 67, Block 1, BMBC with the following condition: 1. The license agreement include a condition for relocating the refuse enclosure back onto Lot 67, Block 1, Benchmark at Beaver Creek Subdivision when public improvements occur on Lot 4, Buck Creek PUD; and, 2. The license agreement include a condition for re- mitigating the nine (9) aspen trees on Lot 67, Block 1, Benchmark at Beaver Creek Subdivision that are removed or damaged when public improvements occur on Lot 4, Buck Creek PUD. License Agreement Staff provided the applicant with the standard Town of Avon License Agreement for review and comment. The applicant has provided additional information and some modifications to the Draft License Agreement as seen in Exhibit A. One of the major modifications to the License Agreement is an addition of an initial five (5) year period in Section 3.2. The applicant is requesting the initial period due to the significant investment of the improvements. This clause is uncommon for Avon as none of the previously approved license agreements (China Garden, Ticino's, and Lakeside Terrace) include a clause like this. There are no improvements planned by the Town of Avon on the Property in the near term, therefore Staff has no objections to the requested initial timeframe. Lot 4 will be needed by the Town in the future if a roundabout is ever constructed at Swift Gulch Road as outlined in the Town of Avon Comprehensive Transportation Plan. Another significant modification to the License Agreement is the inclusion of Section 3.6 and 3.7. These sections were included to address the conditions of the Minor Design and Development Plan approval from the PZC. Section 3.6 requires the upkeep and relocation or new installation of plant material when the agreement is terminated and the lot is used for public improvements related to Swift Gulch Road. Section 3.7 requires the relocation of the dumpster enclosure back onto Lot 67 in order to comply with the approved site development plan. Since the Town is not allowed to give land away for free, it requires compensation or a public benefit in return for use of public land. Currently the Application is not proposing to provide compensation for the use of Town -owned land. Staff recommends that the applicant provide a sidewalk connection along Nottingham Road from the end of Lot 67 to the edge of asphalt on Swift Gulch Road. This improvement is shown on Sheet 1.0 of Exhibit B. A note next to the 2 1 P a g e July 10, 2012 Town Council Meeting — Northside License Agreement sidewalk states, "Nottingham Road sidewalk improvements. Responsibility to be determined." Staff recommends this note be modified to place the responsibility of construction on the applicant. Staff Recommendation If the Town Council is accepting of the proposed five (5) year initial approval period and the recommended sidewalk public benefit, then Staff recommends approving the proposed License Agreement for parking and landscaping on Lot 4, Buck Creek PUD and subdivision. Town Manager Comments Exhibit A —Proposed License Agreement B — Approved Plan Set for Lot 4, Buck Creek PUD 3 1 P a g e July 10, 2012 Town Council Meeting — Northside License Agreement Exhibit A DRAFT DOCUMENT FOR SAMPLE AND REVIEW ONLY SUBJECT TO NEGOTIATIONS AND MODIFICATION TO ADDRESS SPECIFIC IMPROVEMENTS AN 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 "). 2.2. The Licensee has expressed a desire to encroach upon and occupy the Town Property for the purpose of installing, constructing, and maintaining certain temporary parking and landscape improvements. 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 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 "), 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 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. Due to the significant investment by the Licensee, the Town intends that the initial period of this license will run for a minimum of five years from the date this License Agreement is executed. 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 Agreement. This provision includes but is not limited to claims relating to road Avon / Form of Right -of -Way License Agreement 2 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 and /or plant nine (9) Aspen trees (minimum 2.5" caliper) on Lot 67, Block 1, Benchmark at Beaver Creek Subdivision (BMBC) 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 Avon / Form of Right -of -Way License Agreement 3 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; Avon / Form of Right -of -Way License Agreement 4 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. DATED THIS DAY OF 20 Town Clerk or Deputy Town Clerk STATE OF COLORADO ) ) ss. TOWN OF AVON: By: Town Manger Town of Avon Approved as to Form: For Town Attorney's Office LICENSEE: By: _ Print Name: James Pavelich Address: 20 Nottingham Road, Avon, CO 81620 Avon / Form of Right -of -Way License Agreement 5 COUNTY OF EAGLE The foregoing instrument was acknowledged before me this day of , 20 , personally by Notary Public (SEAL) Commission expires: Avon / Form of Right -of -Way License Agreement 6