03-26-2013 Revocable License Agreement for snow storageREVOCABLE LICENSE AGREEMENT FOR SNOW STORAGE
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON, TRAER
CREEK -RP LLC AND EMD -CM LLC FOR THE GRANT OF A REVOCABLE
LICENSE AGREEMENT FOR SNOW STORAGE.
1.0 PARTIES. The parties to this Revocable License Agreement for Snow Storage (this
"Agreement ") dated as of Maack Zi,2, 20 13 (the "Execution Date ") are the Town of
Avon, a home rule municipal corporation of the State of Colorado (the "Town" and a
"Party "), Traer Creek -RP LLC, a Colorado limited liability company ( "Traer Creek" a
"Licensee" and a "Party "), and EMD -CM LLC, aka Trees of Colorado, a Colorado
limited liability company ( "EMD" a "Licensee" and a "Party "), together with Traer
Creek, the "Licensees." Within this Agreement, the "Parties" is the plural of the defined
term "Parry" but does not necessarily include all the parties (the Town, Traer Creek and
EMD).
2.0 RECITALS AND PURPOSE.
2.1 The Town is the fee owner of certain property located in the Town of Avon,
County of Eagle, State of Colorado, as more particularly described in EXHIBIT
A: LEGAL DESCRIPTION OF PROPERTY attached hereto and incorporated
herein by this reference (the "Property "); and
2.2 The Town and Traer Creek are also certain of the parties to that certain
Consolidated, Amended and Restated Annexation and Development Agreement
for The Village (at Avon) dated as of , 20 and recorded on
20_ in the real property records of the Clerk and Recorder for
Eagle County, Colorado (the "Records ") at Reception No. (the
"Development Agreement "), which is hereby incorporated by this reference; and
2.3 Master Developer caused Traer Creek to convey the Property to the Town in
accordance with Section 3.7(b) of the Development Agreement which provides
that until such time that the Property is developed or improvements are
constructed thereupon that would preclude use of the Property for snow storage,
the Town and Master Developer (as "Master Developer" is defined in the
Development Agreement) shall have the right to use the Property for snow
storage; and
2.4 The Master Developer has the right to assign any portion of its rights under the
Development Agreement to third parties acquiring an interest or estate in the
Property pursuant to Section 8.11 of the Development Agreement and has elected
to assign its rights to this Agreement to Traer Creek and EMD; and
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 1 of 12
2.5 The Town desires to grant, and the Licensees desire to accept, a revocable license
for the purpose of snow storage upon the Property consistent with the terms of the
Development Agreement.
3.0 LICENSE TERMS AND CONDITIONS.
3.1 Grant of License. The Town hereby grants to Licensees a revocable license for
snow storage purposes (the "Snow Storage License ") on, over and upon the
Property for the area depicted in EXHIBIT B: SNOW STORAGE AREA,
which is subject to change pursuant to Section 3.7(b) of the Development
Agreement.
3.2 Hazardous Materials. The applicable Licensee or Licensees agree to use
reasonable commercial efforts to avoid the dumping or release of Hazardous
Materials (defined below) on the Property, provided that the Town acknowledges
and agrees that Licensees intend to store snow on the Property that has been
removed from streets, drive lanes, parking lots and other paved vehicular travel
and storage surfaces, and, in connection therewith, there may occur incidental
dumping of the by- products of such surfaces and vehicles, such as petroleum,
gasoline products, products associated with snow removal such as cinders and
magnesium chloride. The term "Hazardous Materials" as used herein includes,
without limitation, gasoline, petroleum products, explosives, radioactive
materials, hazardous materials, hazardous wastes, hazardous or toxic substances,
polychlorinated biphenyls or related or similar materials, asbestos or any material
containing asbestos, or any other substance or material as may be defined as a
hazardous or toxic substance by any Federal, state or local environmental law,
ordinance, rule, or regulation including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
(42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (42 U.S.C. Section 1801, et seq.) the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Section 1251, et seq.), the Clean Air Act,
as amended (42 U.S.C. Section 7401, et seq.) and in the regulations adopted and
publications promulgated pursuant thereto.
3.3 Term; Termination. This Agreement and the Snow Storage License granted to the
Licensees hereby shall commence on the Effective Date (as "Effective Date" is
defined in the Development Agreement) and terminate on the date the Property is
so developed or such improvements are constructed thereupon that preclude use
of the Property for snow storage (the "Snow Storage Termination Date "). Any
and all improvements constructed on the Property are subject to approval by the
Design Review Board (as defined in the Development Agreement) pursuant to the
terms of the Development Agreement. Pursuant to paragraph 5 below, the Town
shall give the Licensees sixty (60) days prior written notice of the Town's
commencement of development or commencement of construction of such
improvements on the Property that preclude use of the Property for snow storage.
The Town's notice of termination in any given year must be received by
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 2 of 12
September 30, so that the Licensees can enter into contracts for snow storage for
the upcoming snow season. For clarification purposes, grading the Property does
not in itself make the Property unsuitable for snow storage use. The Snow
Storage License may be earlier revoked only if the Town Council of the Town has
made a legislative determination at a duly noticed public hearing that revocation
of the Snow Storage License is necessary to protect the public health, safety and
welfare of the Town; provided, however, the Town shall give the Licensees
written notice specifying the nature of public health, safety and welfare concern
and the Licensees shall have 30 days from such written notice to cure or correct
such concern (or such longer time as is reasonably necessary to cure or correct
such concern so long as the Licensees have in good faith commenced and are
diligently pursuing efforts to correct the condition specified in such notice). If the
Licensees fail to cure or correct such concern within such timeframe, the Town
shall thereafter give Licensees written notice of revocation of the Snow Storage
License. The Town may summarily suspend the Snow Storage License granted to
Licensees if Licensees dump or release Hazardous Materials in excess of
incidental dumping of the by- products of streets, drive lanes, parking lots and
other paved vehicular travel and storage surfaces and vehicles as described in
paragraph 3.2 above until such time as Licensees repair the damage caused by
such dumping or release of Hazardous Materials or the Town takes legislative
action to revoke the Snow Storage License according to the procedures stated in
this paragraph 3.3. From and after the Snow Storage Termination Date, the
Licensees shall have no right to use the Property for snow storage purposes, the
Snow Storage License shall automatically be revoked and this Agreement shall
terminate and be of no further force or effect, provided that Licensees' obligation
to repair any damage to the Property caused by Licensees as set forth in paragraph
3.5 below shall survive the termination of this Agreement.
3.4 Indemnity. To the extent permitted by law, the applicable Licensee or Licensees
expressly agree to, and shall, indemnify and hold harmless the Town, as licensor,
and any of its officers, agents, or employees from any and all claims, damages,
liability, or court awards, including reasonable 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 (collectively, the "Claims "), in connection with or
arising out of any act or omission by the Licensees or any of their respective
employees, agents, partners, or lessees, in exercising their rights under this
Agreement; provided, however, such indemnity and hold harmless shall not
extend to any Claims in connection with or arising out of the negligence or willful
misconduct of the Town. In particular and without limiting the scope of the
foregoing agreement to indemnify and hold harmless, the Licensees shall, to the
extent permitted by law, indemnify the Town from all Claims in connection with
or arising out of any claim in whole or in part that all or any portion of the snow
storage permitted by this Agreement constitutes a dangerous and /or unsafe
condition within a public right -of -way; provided, however, such indemnity shall
not extend to any Claims in connection with or arising out of the negligence or
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 3 of 12
willful misconduct of the Town. Notwithstanding the foregoing, EMD shall have
no liability for any Claims arising by or through the actions or inactions of Traer
Creek and Traer Creek shall have no liability for any Claims arising by or through
the actions or inactions of EMD and the Town agrees to look solely to the
applicable Licensee hereunder with respect to any Claim and hold harmless
hereunder the other Licensee not the cause of the Claim.
3.5 Damage; Environmental Conditions. During the term of this Agreement, the
applicable Licensee or Licensees shall promptly repair, at no cost to the Town,
any damage caused by the applicable Licensee or Licensees to the Property and
improvements thereon, including without limitation, the dumping or release of
Hazardous Materials, and shall return the Property and such improvements to the
condition existing immediately prior to the occurrence of the damage. In no
event, however, shall the Town claim the Property or the improvements thereon
are damaged due to the dumping or release of Hazardous Materials associated
with the snow dumping operation, unless the Town can prove such dumping or
release of Hazardous Materials are in excess of what is considered commercially
reasonable. Upon termination of this Agreement, the applicable Licensee or
Licensees agree to repair, at no cost to the Town, any damage to the Property
caused by the Licensees, including without limitation, removal and /or remediation
of any Hazardous Materials placed on the Property by the applicable Licensee or
Licensees, and the Town hereby grants an encroachment license to Licensees for
the limited purpose of performing such repair, removal and clean up, if any,
which encroachment license shall survive termination of this Agreement.
Notwithstanding the foregoing, Traer Creek shall have no liability for any damage
arising by or through the actions or inactions of EMD and EMD shall have no
liability for any damage arising by or through the actions or inactions of Traer
Creek and the Town agrees to look solely to the applicable Licensee hereunder
with respect to any damage and .hold the other Licensee that did not cause the
damage harmless hereunder.
3.6 Insurance. The applicable Licensee or Licensees agree to procure and maintain,
at their own cost, a policy or policies of insurance protecting against injury,
damage or loss occurring on the Property in the minimum amount of $600,000.00
per occurrence. Such policy or policies shall name the Town as an "additional
insured." However, the applicable Licensee or Licensees' failure to take such
steps to obtain such insurance shall not waive, affect, or impair any obligation of
the applicable Licensee or Licensees to indemnify or hold the Town harmless in
accordance with this Agreement. If applicable, Licensees agree to apportion the
cost of any such insurance between them on a commercially reasonable basis.
4.0 ASSIGNMENT. This Agreement shall not be assigned by any of the Parties without the
prior written consent of all the Parties, which consent shall not be unreasonably withheld,
conditioned or delayed; provided, however, Traer Creek and EMD shall have the right to
assign or transfer all or any portion of their respective interests, rights or obligations
under this Agreement to any related parties or any third parties acquiring an interest or
Revocable License Agreement for Snow Storage
Feb. 27, 2073
Page 4 of 12
estate in the property legally described in Exhibit A to the Development Agreement, and
generally known as The Village (at Avon), including, but not limited to, purchasers or
long term ground lessees of individual lots, parcels, or of any improvements now or
hereafter located within such property, provided that to the extent Traer Creek or EMD
assigns or transfers any of their respective obligations under this Agreement, the
assignee /assignees or transferee /transferees of such obligations shall expressly assume
such obligations. The express assumption of any of Traer Creek's or EMD's respective
obligations under this Agreement by their respective assignee /assignees or
transferee /transferees shall thereby relieve Traer Creek and EMD of any further
obligations under this Agreement with respect to the matter so assumed. Additionally,
and under the same terms and conditions just outlined, Traer Creek or EMD may assign
or transfer their respective rights herein to any successors in interest, heirs, assigns,
transferees, etc.
5.0 NOTICES. Any notice, demand, request, consent, approval or communication that a
Party desires or is required to give to the other Parties shall be in writing and either
personally delivered, sent by registered or certified United States mail, postage prepaid,
or sent by overnight courier. Notices shall be deemed effective: (i) if personally
delivered, when actually given and received; or (ii) if by overnight courier service, on the
next business day following deposit with such courier service; or (iii) if by registered or
certified United States mail, postage prepaid, return receipt requested, three (3) business
days after mailed. Notices shall be addressed as follows (or to such other address as may
be subsequently specified by notice given in accordance herewith):
To Traer Creek: With Copy to:
Traer Creek LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, CO 81620
Attn: Marcus Lindholm, Manager
Telephone: 970.949.6776
To EMD:
EMD -CM LLC
P.O. Box 9429
0101 Fawcett Road, Suite 210
Avon, CO 81620
Attn: EMD Limited Liability
Company, Manager
Telephone: 970.949.6776
To Town:
Town of Avon
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 5 of 12
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers, Esq.
Telephone: 3 03.825.8400
With Copy to:
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Munsey L. Ayers, Esq.
Telephone: 3 03.825.8400
With Copy to:
Town of Avon
P.O. Box 975
One Lake Street
Avon, CO 81620
Attn: Town Manager
Telephone: 970.748.4000
P.O. Box 975
One Lake Street
Avon, CO 81620
Attn: Town Attorney
Telephone: 970.748.4000
6.0 AMENDMENT. This Agreement incorporates all agreements and stipulations between
the Parties as to the subject matter of this Agreement and no prior representations or
statements, verbal or written, shall modify, supplement or change the terms of this
Agreement. This Agreement may not be amended, modified or supplemented except in
writing executed by all the Parties (or their successors or assigns, as applicable).
7.0 GOVERNING LAW AND VENUE. This Agreement shall be construed in accordance
with and governed by the laws of the State of 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 any Party. No waiver of one or more of the terms of this
Agreement shall constitute a waiver of other terms. No waiver of any provision of this
Agreement in any instance shall constitute a waiver of such provision in other instances.
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. Except in the event of negligence or willful
misconduct of the Town, it is the intent of this Agreement that the Town shall incur no
cost or expense attributable to or arising from the Snow Storage License granted by this
Agreement and that the risk of loss, liability, obligation, damages, and claims associated
with the Snow Storage License shall be borne by the Licensees. This Agreement does
not confer upon the Licensees 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. In
addition, it is the intent of this Agreement to be consistent with the terms of the
Development Agreement to provide for snow storage for Licensees, as so bargained for
in the Development Agreement and in this Agreement.
11.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are
expressly authorized to execute this Agreement on behalf of their respective Parties and
to bind their respective Parties and that the Parties may rely upon such representation of
authority.
Revocable License Agreement for Snow Storage
Feb.27,2013
Page 6 of 12
IN WITNESS WHEREOF, Traer Creek, EMD and the Town have executed this
Agreement as of the Effective Date.
TOWN:
Town of Avon, a home rule municipal
corporation of the State of Colorado
� 4
By: Attest:
Rich Carroll, Mayor Pates /M Kenny,-Town Clerk
Town of Avon
Approved as to Form:
Eric Heil, Esq., fown Attorney
STATE OF COLORADO )
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this �- � day of 0-e-c-- ,
20 i3, personally by Rich Carroll, as Mayor, and Patty McKenny, as Town Clerk,'of the Town
of Avon, a home rule municipal corporation of the State of Colorado.
(SEAL) �EFiLE �t e �'� j :ac
•..•••. ;• Q Notary Public
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Commission Expires:
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Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 8 of 12
12.0 LEGAL FEES AND COSTS. Except for arbitration as set forth in paragraph 13 below,
in the event that a Parry institutes an action or proceeding for a declaration of rights of the
Parties under this Agreement, for injunctive relief, for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement, or the transactions
contemplated hereby, the prevailing Parry shall be entitled to its actual reasonable costs
and attorney's fees.
13.0 GOVERNING LAW AND VENUE. This Agreement shall be governed and construed
under the laws of the State of Colorado. Venue for any legal action relating to this
Agreement shall be the State District Court in and for the County of Eagle, Colorado.
Each Parry shall also have the right to obtain a declaratory judgment, whether the issue is
ripe or not. If a court will not issue a declaratory judgment, because the issue is not ripe,
the applicable Parties agree to submit any disputes under this Agreement to the Judicial
Arbiter's Group ( "JAG ") for binding resolution in accordance with the Colorado Uniform
Arbitration Act.
14.0 RECORDING. This Agreement may be recorded by any Party in the Records.
15.0 NO JOINT VENTURE OR PARTNERSHIP. No form of joint venture or partnership
exists between Traer Creek, EMD and the Town, and nothing contained in this
Agreement shall be construed as making Traer Creek, EMD and /or the Town joint
venturers or partners.
16.0 NO THIRD PARTY BENEFICIARIES. This Agreement does not, and shall not be
construed to create any third parry beneficiaries or confer any rights on any person or
entity not named as a party hereto.
[signature pages follow]
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 7 of 12
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LICENSEES:
TRAER CREEK:
Traer Creek -RP LLC, a Colorado limited
liability company
By: Traer Creek LLC, a Colorado limited
liability company, its Manager
LO-A
Marcus Lindholm, Manager
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
20_, personally by Marcus Lindholm as Manager of Traer Creek LLC, a Colorado limited
liability company.
(SEAL)
Notary Public
Commission Expires:
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 9 of 12
LICENSEES (continued):
EMD:
EMD -CM LLC, a Colorado limited liability
company
By: EMD Limited Liability Company, a Colorado
limited liability company, its Manager
By: Lava Corporation, a Colorado
corporation, its Manager
Van
Michael Lindholm, President
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
20, personally by Michael Lindholm as President of Lava Corporation, a Colorado
corporation.
(SEAL)
Notary Public
Commission Expires:
Revocable License Agreement for Snow Storage
Feb. 27, 2013
Page 10 of 12
Traer EMD Revisions 20130225
EXHIBIT A
Legal Description of the Property
Lot 2, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a
Resubdivision of Lot 1, Eagle County, Colorado.
Revocable License Agreement for Snow Storage
Feb. 25, 2013
Page l of 12
EXHIBIT B
Snow Storage Area
EXHIBIT B: SNOW STORAGE AREA
MAhbM.
Lot 2
Snow Storage on Lot 2
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pp y b3
General access and snow storage area on
Traer Creek -RP property
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Lot t
0
'L 1 Oft Contours " Village at Avon Properties
Lot 2 Town of Avon Building Footprints E) 0 6�0 1 Feet
0 120
Traer Creek -RP property
Revocable License Agreement for Snow Storage
Feb. 27, 2013
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