TC Res. No. 2009-05 APPROVING THE TEMPORARY EASEMENT AGREEMENTEXHIBIT A
RESOLUTION NO. 09-05
,SERIES OF 2009
f
A RESOLUTION APPROVING THE TEMPORARY EASEMENT AGREEMENT
FOR A PARCEL OF LAND, TE -24A, LOCATED AT LOT 24, BLOCK 2,
BENCHMARK AT BEAVER CREEK, AMENDMENT 4, FOR THE PURPOSE
OF CONSTRUCTING THE EAST BEAVER CREEK BOULEVARD
STREETSCAPE IMPROVEMENTS
WHEREAS, the Town of Avon entered into an Annexation and Development
Agreement with EMD LLC, PVRT NOTT I LLC, PVRT NOTT 1I LLC, and PVRT
NOTT III LLC, dated October 13, 1998, which required in Section 4.3(b)(iii) that the
Town of Avon acquire right -of -ways to a portion of East Beaver Creek Boulevard as
necessary for improvements to be constructed by Traer Creek Metropolitan District;
WHEREAS, the Town Council has previously directed, authorized, and budgeted for
acquisition of easements required for the East Beaver Creek Boulevard Streetscape
Improvements;
WHEREAS, Colorado Revised Statutes section 31- 15- 101(1)(a) provides that
municipalities may acquire and hold real property; and,
WHEREAS, the Town Council finds that acquisition of the Temporary Easement
attached hereto shall promote the health, safety and general welfare of the Avon
community by allowing improvements to East Beaver Creek Boulevard that enhance
traffic circulation;
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO, that the temporary easement agreement, TE-
24A, at lot 24, Block 2, Benchmark at Beaver Creek, Amendment 4, for the purpose of
constructing the East Beaver Creek Boulevard Streetscape Improvements, is hereby
approved by the Town of Avon:
ADOPTED THIS 2 L+ tb- DAY OF OOWC�--
.�
, 2009.
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TO
Vs�UNCIL
AVON, COL RADO
i Ronald C. Wolfe, Mayor
J:ACIP \E Bvr Ck Btvd \6.0 RW AcquisitionA6.2 Properties \6.2.2 Avon Plaza -Lot 24\Resolution 09-05 Temp Easement.doe
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
KNOW ALL MEN BY THESE PRESENTS: That Avon Plaza Condominium Association,
(Grantor), whose address is 150 E. Beaver Creek Boulevard, in consideration of Six Thousand Forty
Two DOLLARS ($6,042.00), 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 ") to establish and maintain site grades and drainage compatible
with the East Beaver Creek Boulevard Streetscape Improvements project over and across the tract of
land described in paragraph 1 below.
The parties further agree as follows:
1. Grantor owns Lot 24, Block 2, Benchmark At Beaver Creek, Amendment No. 4, 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 April 1, 2009, and shall expire and be of no
further force or effect on December 31, 2009 ( "Term "). As part of this easement agreement, the
Town agrees that there will be no encroachment or interference into the existing parking lot located
on the Property during construction or upon the completion of construction activities and that access
from Beaver Creek Boulevard will not be eliminated except as may be necessary on a temporary
basis to complete construction.
2. Town agrees that it will provide written notice of commencement of construction to the
Grantor at least 30 days prior commencement of construction. Town shall tender payment in the
amount of Six Thousand Forty Two DOLLARS ($6,042.00) as the stated monetary consideration
above along with tendering the written notice of commencement of construction. In the event that
construction does not commence for the East Beaver Creek Boulevard Streetscape Improvements in
2009, then Town shall have no obligation to tender the monetary consideration stated in this
Temporary Construction Easement Agreement. Town agrees to use best efforts to schedule the
timing of construction to coincide with off - season to avoid conflicts and business disruption that
such construction may cause during peak season times. In the event that Grantor seeks
improvements to the Property during the Term 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.
Temporary Construction Easement Agreement 2009
Page 1 of 4
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
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 East Beaver Creek Boulevard Street 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 East Beaver Creek Boulevard Streetscape project will
be modified to 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 East Beaver Creek Boulevard Streetscape project site, which insurance shall name Avon Plaza
Condominium Association as an additional insured. The Town shall deliver the certificate of
insurance naming Avon Plaza Condominium Association 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
Temporary Construction Easement Agreement 2009
Page 2 of 4
applicable; or (iii) if given by nationally recognized or reputable overnight delivery service, on the
next day after receipted deposit with same.
Grantor: Avon Plaza Condominium Association
PO Box 5223
Vail, CO 81658
Attn: Chris Neuwesanger
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.
Temporary Construction Easement Agreement 2009
Page 3 of 4
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.
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 date first written above.
By:
STATE OF (�6VaJV _ )
ss
Date:
COUNTY OF )
The foregoing instrument was acknowledged before me
Q , 2009, by
my hand and official seal.
,tiu.9 —) lt/14 r ' f C
NraN Public
Easem zfitt A ement accepte nd a y
,C�"
Ronald C. Wolfe
Attest: P,� -�, �� ----I i
Town Oerk
My commission
by the Town of Avon.
Date: `3 / 3 I I opt
Temporary Construction Easement Agreement 2009
Page 4 of 4
EXHIBIT "A"
Inter- Mountain
ENGINEERING
Civil Engineers & Surveyors
REAL PROPERTY
TO BE ACQUIRED FOR TEMPORARY EASEMENT FOR THE
TOWN OF AVON, EAST BEAVER CREEK BOULEVARD RECONSTRUCTION
PARCEL TE -24A
DESCRIPTION
A PARCEL OF LAND NO. TE -24A OF THE TOWN OF AVON, STATE OF COLORADO, CONTAINING 0.049
ACRES, MORE OR LESS, SITUATED IN LOT 24, BLOCK 2, BENCHMARK AT BEAVER CREEK,
AMENDMENT NO. '4 AS RECORDED IN THE OFFICE OF THE CLERK AND RECORDER OF EAGLE
COUNTY, COLORADO, AT BOOK 274, PAGE 701, ON SEPTEMBER 5, 1978, BEING MORE PARTICULARLY
DESCRIBED AS FOLOWS:
THE TRUE POINT OF BEGINNING BEING AT THE NORTHWEST CORNER OF SAID LOT COMMON TO
THE SOUTH RIGHT OF WAY LINE OF EAST BEAVER CREK BOULEVARD;
THENCE SOUTH 26 046'15" EAST ALONG THE WEST LINE OF SAID LOT, A DISTANCE OF 5.00 FEET;
THENCE NORTH 63 013'45" EAST A DISTANCE OF 90.00 FEET TO A POINT OF CURVATURE OF A
CURVE TO THE RIGHT HAVING A RADIUS OF 270.00 FEET;
THENCE ALONG SAID CURVE A DISTANCE OF 259.18 FEET THROUGH A CENTRAL ANGLE OF
55 000'00 ", HAVING A CHORD BEARING AND DISTANCE OF SOUTH 89 016'16" EAST, 249.34 FEET TO
A POINT OF TANGENCY;
THENCE SOUTH 61 046'15" EAST A DISTANCE OF 67.57 FEET TO A POINT ON THE EAST LINE OF
SAID LOT 24.
THENCE NORTH 54 022'15" EAST ALONG SAID LINE A DISTANCE OF 5.67 FEET TO THE NORTHEAST
CORNER OF SAID LOT AND THE SOUTH RIGHT OF WAY LINE OF EAST BEAVER CREEK
BOULEVARD;
THENCE NORTH 61046'15" WEST ALONG SAID CURVE AND THE NORTH LINE OF SAID LOT
COMMON TO THE SOUTH RIGHT OF WAY LINE OF SAID EAST BEAVER CREEK BOULEVARD A
DISTANCE OF 70.00 FEET TO A POINT OF CURVATURE OF A CURVE TO THE LEFT 14AViNG A
RADIUS OF 275.00 FEET;
THENCE ALONG SAID CURVE AND SAID COMMON LINE A DISTANCE OF 263.98 FEET THROUGH A
CENTRAL ANGLE OF 55 000'00 ", HAVING A CHORD BEARING AND DISTANCE OF NORTH 89016'16"
WEST, 253.96 FEET TO A POINT OF TANGENCY;
THENCE SOUTH 63 013'45" WEST ALONG SAID COMMON LINE A DISTANCE OF 90.00 FEET TO THE
TRUE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL CONTAINS 2,120 SQUARE FEET (0.049 ACRES), MORE OR LESS.
DENVER OFFICE
6551 S. Revere Pkwy., Suite 165 ( Centennial, CO 80111 1 Phone: 303.948.6220 ( Fax: 303.948.6526
VAIL VALLEY OFFICE
40801 U.S. Highway 6, Suite 203 1 PO Box 978 1 Avon, CO 81620 1 Phone: 970.949.5072 1 Fax: 970.949.9339
I HEREBY STATE THAT THE ABOVE DESCRIBED LEGAL DESCRIPTION HAS BEEN PREPARED BY ME
OR UNDER MY DIRECT SUPERVISION.
DECEMBER 8, 2008
PREPARED BY:
INTER- MOUNTAIN ENGINEERING, LTD.
40801 US HIGHWAY 6, SUITE 203
P.O. BOX 978
AVON, COLORADO 81620
(970) 949 -5072
DUANE D. FEHRINGER, P.E. & P.L.S. 26626
PROJECT NO.: 08 -0023S
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Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Justin Hildreth, Town Engineerlm
Shane Pegram, Engineer 11
Date: March 17, 2009
Re: Resolution No. 09-05, Approving the Temporary Easement Agreement for a Parcel
of Land, TE -24A, Located at Lot 24, Block 2, Benchmark at Beaver Creek,
Amendment 4, For the Purpose of Constructing the East Beaver Creek Boulevard
Streetscape Improvements
Summary: Attached to this Memorandum is Resolution 09 -05, a Resolution that approves the
Temporary Easement Agreement necessary to construct the East Beaver Creek Boulevard
Streetscape Improvements on lot 24, Block 2, Benchmark at Beaver Creek, Amendment 4. Lot 24
is located at 150 East Beaver Creek Boulevard and is known as Avon Plaza.
Discussion: The 3`d Amendment of the Annexation and Development Agreement for The Village at
Avon, between the Town of Avon and Traer Creek Metro District, requires the Town to design and
obtain easements to install the East Beaver Creek Blvd. Streetscape Improvements by April 15,
2009. Traer Creek Metro district is required to pay the Town "out of pocket" costs for obtaining the
necessary easements. The Annexation and Development Agreement also requires that
construction is started by April 15, 2009 and completed by December 31, 2009.
The East Beaver Creek Boulevard Streetscape Improvement plans propose to construct a new
sidewalk along the south and east side of East Beaver Creek Blvd next to the Avon Plaza building.
The new sidewalk will be constructed within Town of Avon Right of Way. The parcel of land, TE-
24A, is located along the new sidewalk and allows construction activities necessary to complete the
sidewalk.
Financial Implications: There is $300,000 budgeted for the East Beaver Creek Blvd. Streetscape
Project. The $6,042 required to obtain the Temporary Easement will be paid upon notification that
Traer Creek Metro District will construct the project. The Annexation and Development Agreement
requires the Metro District to reimburse the Town for money spent on obtaining the easement.
Recommendation: Staff recommends approval of Resolution No 09 -05.
Proposed Motion: 1 move to approve Resolution No. 09 -05, Series of 2009, A Resolution
Approving the Temporary Easement Agreement for a Parcel of Land, TE -24A, Situated in Lot 24,
Block 2, Benchmark at Beaver Creek, Amendment 4, For the Purpose of Constructing the East
Beaver Creek Boulevard Streetscape Improvements
Town Manager Cpmmept97)
Exhibit'A- - Resolution 09 -05, Series of 2009
Exhibit B Temporary Easement Agreement, TE -24A