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08-09-2012 Agreement Steve MacDonald, 111 Metcalf Rd Temporary Const EasementTEMPORARY CONSTRUCTION EASEMENT AGREEMENT KNOW ALL MEN BY THESE PRESENTS: That 111 Metcalf Road LLC, (Grantor), whose address is P.O. Box 2181, Edwards, Colorado, in consideration of Six Thousand Two Hundred Eight Dollars ($6,208.00), 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 P. O 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 "). The parties further agree as follows: 1. Grantor owns Lot 20, Benchmark at Beaver Creek, Amendment 4, 111 Metcalf Road, Avon, Colorado ( "Property "). Grantor grants to the Town a temporary construction easement for the purpose of constructing the improvements as described in Exhibit A attached hereto. The term of this temporary construction easement shall begin on June 30, 2012, and shall expire and be of no further force or effect on October 31, 2013 ( "Term "). As part of this easement agreement, the Town agrees that there will be no encroachment or interference into the existing dog park located on the Property during construction or upon the completion of construction activities and that access from Metcalf Road will not be eliminated except as may be necessary on a temporary basis to complete construction. The manner and duration of construction that will limit access is described in Exhibit B. ­ 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 Six Thousand Two Hundred Eight Dollars ($6,208) 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 Tenn 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 construct the improvements described in Exhibit A. 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 Page 1 of 4 indirectly through the action or inaction of the Town, its planners, engineers, 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 Metcalf Road Widening and Drainage Improvements, all materials placed by the Town 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 Metcalf Road Widening and Drainage Improvements 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 Metcalf Road Widening and Drainage Improvements Project site, which insurance shall name 111 Metcalf Road LLC and the tenant, Walking The Dog, Inc., as additional insured. The Town shall deliver the certificate of insurance naming 111 Metcalf Road LLC and Walkin' The Dog 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. Page 2 of 4 Grantor: Steve MacDonald 111 Metcalf Road LLC P.O. Box 2181 Edwards, CO 81632 Town of Avon: Town of Avon One Lake Street P.O. 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. Page 3 of 4 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 d tNrst written above. By: Date: STATE OF �j(urado ) ss. COUNTY OF The foregoing instrument was acknowledged before me this 1(-I' day of 2012, by 1ne b. Soe -c>�: Witness my hand and official seal. My commission expires: Ia • �' - Easement Agreement accepte _ pproved by the Town of Avon. By: Date: v 11 Rich Carroll, Mayor r' Attest: 421L'k� ` fi Patt 1 c 'enny, To erk Page 4 of 4 SOWN 0- Inter - , i-- NGINEERING EXH1131T ";t" Civil Engineers & Surveyors SHEET I OF 2 LEGAL DESCRIPTION FOR TEMPORARY EASEMENT A parcel of land located in Lot 20 of Official Plat — Town of Avon, Eagle County, Colorado and Final Subdivision Plat Amendment No. 4 Benchmark at Beaver Creek as recorded in the Office of the CIcrk and Recorder of Eagle County, Colorado in Book 274, Page 701 on September 5, 1978 more paiticularlv described as follows. The point of commencement being the southeast corner of said Lot 20; Thence N82' 15'02 "W a distance of 26.42 feet to a point on the existing Drainage and Utility E,tsenicw being 7.5' from the south property line of said Lot 20 and to a point on the existing Drainage Easement being 25' from the east property line of said Lot 20 and the True Point of Beginning: Thence S81' 15'25 "W along said 7.5' Drainage and Utility Easement a distance of 20.02 feet to a point_ Thence N 1 1'06'25 "W a distance of 106.29 feet to a point; Thence N24'48'02 "E a distance of 34.10 feet to a point on the existing 25' Drainage Easement: Thence S I I'06'25 "E along said Drainage Easement a distance of 136.73 feet to the True Point of Beginning. Said parcel of land contains 2,450 square feet, 0.056 acres, more or less. luu J 266 G `, YJ Dual Al,i�°itTgt'f; P��' .I</.S. 26626 Inter -Nt inng , g Project No. 1 - DENVER OFFICE 6551 S. Revere Pkwy., Suite 165 1 Centennial, CO 80111 1 Phone: 303.948.6220 1 Fax: 303.948.6526 VAIL VALLEY OFFICE 40801 U.S. Highway 6, Suite 203 ( PO Box 978 1 Avon, CO 81620 1 Phone: 970.949.5072 1 Fax: 970.949.9339 LNOA _,___- m: § Z_a \amain± \)\2 ®L I IE \\ } \/ \ 2 ®! � \ 1 }\ > �\ \ K ^4% QA �13� ) t© \< \ ) / � \ e \ 20 )/ \ §\ w/ s« @C \) \� k{ w j/ @) 9 ){ 1 /) § « \ ! �� � Inter-Mountain 4 � y _awe z� � CREEK 2kGlNE£R NG ! \ ` AMENDMENT m , �ƒ z §� �w6a�a�&�_re � EAGLE COU .RCOL _w