11-13-2013 Encroachment AG w Hoffmann Real EstateAN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND HOFFMANN
COMMERCIAL REAL ESTATE FOR THE GRANT OF A REVOCABLE ENCROACHMENT
LICENSE TO INSTALL, CONSTRUCT, AND MAINTAIN PRIVATE 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 ( "Town ") and HOFFMANN
COMMERCIAL REAL ESTATE ( "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 Hurd Lane Right -of -Way and Tract A,
NOTTINGHAM STATION 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 landscape improvements.
2.3. Licensee agrees to construct a retaining wall and install certain landscaping
( "Private Improvements ") along the Hurd Lane Right -of -Way, which the Town
desires and acknowledges is a valuable public benefit that promotes pedestrian
opportunities with a widened sidewalk and which promotes goals of the Town's
Comprehensive Plan. Town further finds that the Private Improvements on Town
Property provide benefits and value that equal or exceed the value of the Town
Property that the Town is providing for use by Licensee.
2.4. 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,
right -of -way permits (including traffic control), 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: landscape plantings (trees,
shrubs, and ground cover), retaining walls, as such Private Improvements are
depicted in Exhibit A: 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 and depicted on Exhibit A: Private
Improvements, no other encroachment, structure, improvement, vehicle, fence,
Hurd Lane Retaining Wall & Landscaping License Agreement Page 1 of 6
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. As a condition to this license granted in this Agreement,
Licensee shall construct the Private Improvements as depicted on Exhibit A:
Private Improvements, which Private Improvements shall be constructed
according to Town's standards.
3.2. The encroachment and occupation of Private Improvements 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. Notwithstanding the
foregoing, 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. Town may also elect to terminate this Agreement upon thirty
(30) days written notice and accept the Private Improvements on Town Property
in its then current condition (i.e. accept "as is ") and the Licensee shall thereafter
be relieved of any obligation to maintain, remove and /or provide insurance for
such Private Improvements on Town Property and ownership of such Private
Improvements shall simultaneously and automatically transfer to the Town.
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 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 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.
Hurd Lane Retaining Wall & Landscaping License Agreement Page 2 of 6
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
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 during this Agreement and shall be responsible for ensuring the proper
pruning or replacement as necessary to present a healthy landscape condition.
Upon termination of this Agreement the Town may require Licensee to relocate
trees and shrubs planted on Hurd Lane Right -of -Way.
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
unless Town elects to terminate this Agreement and accept the Private
Improvements in writing in accordance with ¶3.2 above.
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 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.
3.9. 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
Hurd Lane Retaining Wall & Landscaping License Agreement Page 3 of 6
premises in the minimum amount of $600,000.00 per occurrence. Such policy or
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.
3.10. 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 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;
Hurd Lane Retaining Wall & Landscaping License Agreement Page 4 of 6
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.
[SIGNATURE PAGE FOLLOWS]
Hurd Lane Retaining Wall & Landscaping License Agreement Page 5 of 6
DATED THIS J> OF NOVEMBER 2013.
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STATE OF ILLINOIS
LICENSEE:
By:
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HOFFMANN COMMERCIAL ESTATE
Address: 825 Green Bay Road, Suite 100
Wilmette, IL 60091
The foregoing instrument was acknowledged before me this "r "
day of
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DATED THIS DAY OF NOVEMBER 2013.
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STATE OF ILLINOIS
COUNTY OF LAKE
TOWN OF AVON:
By:
Virginia Egge r I own Maier-- ✓��--
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Approved as to Form:
Eric Heil, Town Attorney
LICENSEE:
By: 19&9�e
Gre nn, Authorized Agent for:
HOFFMANN COMMERCIAL REAL ESTATE
Address: 825 Green Bay Road, Suite 100
Wilmette, IL 60091
The foregoing instrument was acknowledged before me this 7 LN day of
�Qy�raysE,� , 20 / 3 , personally by (Gr/lii/ t . /itQ /S'sr✓
Notary Public
(SEAL) Commission expires: 03 loo �Zo(q
KEVIN L MORRISON
OFFICIAL MY COMMISSION EXPIRES
MARCH 20, 2014
Hurd Lane Retaining Wall & Landscaping License Agreement Page 6 of 6
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