08-13-2013 TOA Agreement between Osprey Capital,LLCAN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
BENCHMARK INVESTORS, LLC TO INSTALL STONE VENEER WALLS AND
PAINT THE UNION PACIFIC RAILROAD BRIDGE
ON AVON ROAD 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 BENCMAR-Kt
� ta1�LL(- "end This Agreement is effective upon execution by
and following execution by the Town Manager on the date indicated below.
2 0 1` C TA�S ANQ PURPOSE.
V "1 2.1. The Town is the owner of certain property located in the Town of Avon, Eagle County,
Colorado, known as the Avon Road Right -of -Way ( "Town Property "), where the Union
Pacific has placed two retaining walls and columns for the support of its railroad track
trestle ( "Railroad Bridge ").
2.2. At its August 13, 2013 meeting, the Town Council approved maintenance and
provided funding in the amount of $98,107. The maintenance improvements are
identified in the attachments titled, "Project Description ", "Avon Bridge NAI" and "Avon
Road Retain Wall — 2nd Revision ( "Railroad Bridge Maintenance ").
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2.3. 1`t£iflf has stated it has the resources and qualifications to provide general
contractor services to have the Railroad Bridge Maintenance completed in the next
three months and has requested permission to occupy the Town Property for the
purpose of Qompleting the Railroad Bridge Maintenance.
2. fG 1ha has submitted a Town Land Development Application, including a Minor
Design and Development Plan, which is attached, for the Railroad Bridge
Maintenance; and, received Town approval for the Plan from the Community
Development Department on August 16, 2013, which is attached.
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2.5. �ekas�hVts applied for a Town Right -of -Way Permit and received approval for the
Permit, with the Town having approved a fee waiver. The Permit is on file with the
Town Road and Bridge Department.
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The Town is willing to grant permission to under the terms and conditions as hereinafter
specified in this Agreement: G�
3.0 TERMS AND CONDITIONS.
3.1. General Contractor: The Town herby agrees that Ra4W;m kshall serve as general
contractor for the Railroad Bridge Maintenance, including the hiring of the companies, '
who are included in the Railroad Bridge Maintenance attachments. Benchmark shah
be responsible for the quality of the work, all site control, including any required traffic
control and acceptance and review of billings. Bene4mai4e,, agrees to repair and
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AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
BENCHMARK INVESTORS, LLC "TO INSTALL STONE VENEER WALLS AND
65' rc, y PAINT THE UNION PACIFIC RAILROAD BRIDGE
ON AVON ROAD RIGHT -OF -WAY
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
- BENCHMARK IN\tE6 -��TO INSTALL STONE VENEER WALLS AND
CnP r �` a�J �� PAINT THE UNION PACIFIC RAILROAD BRIDGE
(mot '�" ON AVON ROAD RIGHT -OF -WAY
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reconstruct any damage to the Town Property, if any, in the performance of the
Railroad Bridge Maintenance.
3.2.
Town Officials:
shall work the Town's Building Official and, as needed,
Town Engineer, to validate the Railroad Bridge Maintenance ") is done as specified.
Osprey (Aa,rtal r;t�
3.3.
Payment: Town shall pay - Benchmark and /or its sub - contractors in accordance with
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this paragraph. Be t 1=IF, at its option, may pay the sub - contractors directly or may
submit documented invoices to the Town for payment. The Town shall promptly, and
in accordance with its payment process, provide payment upon inspection and
Maintenance. Total to wand ()rr7t )'
acceptance of the Railroad Bridge payment
any sub - contractors shall not exceed $98,107. Bens shall prevent any sub - C,d,meki
contractor from placing a lien on Town Property— Town may require release and �
waivers from sub - contractors as a condition of payment to Beaand /or sub-
contractors. U r &40ty. C ilgc l G
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3.4.
Indemnification: 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 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 omission or act of
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commission by Benehmark or any of its employees, agents, partners, or lessees, in
encroaching upon the Town Property. In particular and without limiting the scope of
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the foregoing agreement to indemnify and hold harmless, BOsk nark indemnify
the Town for all claims, damages, liability, or court awards, including costs and ,d
attorney's fees that are or may be awarded as a result of any loss, injury or damage G
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 Railroad Bridge Maintenance
and encroachment permitted by this Agreement constitutes a dangerous and /or
unsafe condition within a public right -of -way.
3.5.
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Insurance: CaP ' 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 $1,000,000.00 per occurrence. Such
policy or policies shall name the Town as an "additional insured ". However,
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- Benchmerk's failure to take such steps to insure the premises shall not waive, affect,
or impair any obligation of Bench rnark to indemnify or hold the Town harmless in
accordance with this Agreement. <)sft-cy Am
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3.6.
Legal Action: agrees that it will never institute any action or suit
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
from the approval granted to.lessl -by this Agreement.
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Page 2 of 4 &$11
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
- BENCHMARK IN\tE6 -��TO INSTALL STONE VENEER WALLS AND
CnP r �` a�J �� PAINT THE UNION PACIFIC RAILROAD BRIDGE
(mot '�" ON AVON ROAD RIGHT -OF -WAY
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3.7. Future Maintenance of Railroad Bridge Maintenance: The Town agrees to assume
responsibility for maintenance the Railroad Bridge Maintenance after inspection and
acceptance by the Town.
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4.0 ASSIGNMENT. This Agreement shall not be assigned by without the prior
written consent of the Town. Any assignment without Town's consent shall be null and void.
5.0 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 Railroad Bridge Maintenance.
6.0 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.
7.0 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.
8.0 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. O's-prey
9.0 UNDERLYING INTENT AND SCOPE. This Agreement does not confer upon the =Bene{ ark G �/
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.
10.0 AUTHORITY TO BIND PARTY. The undersigned persons represent 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.
11.0 LEGAL FEES AND COSTS. In the event the Town seeks legal action to enforce this
Agreement, 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.
[SIGNATURE PAGE FOLLOWS]
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AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
BENCHM...+ *E -9+Gn— 'PTO INSTALL STONE VENEER WALLS AND
` PAINT THE UNION PACIFIC RAILROAD BRIDGE
�r C� �oj J UL ON AVON ROAD RIGHT -OF -WAY
V-H
DATED THIS 'Zo DAY OF AUGUST, 2013.
DAL .
ATT
Patty cK nny, To Clerk
TOWN OF AVON:
By: 0&qK-_�
Virginia Egger, To 7 ager
- Bf--NeK-iNVE6-T
By:`�_
G egory D. Ho nn
O S i rO Cd , Ittrt (,r 1* r
STATE OF COLOR A O
) ss.
COUNTY OF EAGLE )
The foregoing instrument w acknowle ed before me this day of
120 ersonally by
Notary Public
(SEAL) Cgfnmission expires:
Page 4 of 4
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
BENCHMARK INVESTORS, LLC TO INSTALL STONE VENEER WALLS AND
PAINT THE UNION PACIFIC RAILROAD BRIDGE
ON AVON ROAD RIGHT -OF -WAY