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TC Res. No. 2009-07 APPROVING THE TEMPORARY EASEMENT AGREEMENTEXHIBIT A RESOLUTION NO. 09-07 SERIES OF 2009 A RESOLUTION APPROVING THE TEMPORARY EASEMENT AGREEMENT FOR A PARCEL OF LAND, TE -67A, LOCATED AT LOT 67, BLOCK 2, BENCHMARK AT BEAVER CREEK, AMENDMENT 6, 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 II 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- 67A, at lot 67, Block 2, Benchmark at Beaver Creek, Amendment 6, for the purpose of constructing the East Beaver Creek Boulevard Streetscape Improvements, is hereby approved by the Town of Avon: ADOPTED THIS DAY OF MA VC. — M Towr� Cl �r , 2009. TO"UNCIL TOWN O, AVON, COL RADO 1Ronald C. Wolfe, Mayor J:ACIP \E Bvr Ck B1v&6.0 RW Acquisition \6.2 Properties \6.2.7 City Market - Lot 67\Resolution 09-07 Temp Easement.doc r CM -426 TEMPORARY CONSTRUCTION EASEMENT AGREEMENT KNOW ALL MEN BY THESE PRESENTS: That Dillon Real Estate Co., Inc., a Kansas corporation, (Grantor), whose address is 65 Tejon Street, Denver, Colorado 80223, in consideration of ONE THOUSAND SEVEN HUNDRED SEVENTY THREE DOLLARS ($1,773.00), in hand paid, receipt of which is hereby acknowledged, 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 67, Block 2, Benchmark At Beaver Creek, Amendment No. 6, Avon, Colorado ( "Property"), which Property is more particularly described in Exhbit A attached hereto and made a part thereof. Grantor grants to the Town a temporary construction easement for the purpose of constructing the improvements as described in Exhibit B attached hereto and made a part hereof. 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 ontoor interference with the existing parking lot located on the Property during construction or upon the completion of construction activities. 2. To the extent permitted by law, the Town indemnifies, defends, and holds Grantor harmless against any claims or liabilities related to the Town's activities on the Property pursuant to the easement granted hereunder. This provision shall survive the Term of this Easement Agreement. 3. 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 Lot 67, Block 2, Benchmark At Beaver Creek, Amendment No. 6, Temporary Construction Easement Agreement Page 1 of 5 CM -426 shall survive the (Term of this Easement Agreement. 4. The Town agrees that neither it nor its planners, engineers, surveyors, architects or other agents or consultants will dispose of, generate, manufacture, release or store environmentally hazardous substances on or about the Property, and that the fill deposited pursuant to Paragraph 1 above and Exhibit B 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 Construction Plans attached hereto as Exhibit C. 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 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 Construction Plans. 6. The Construction Plans 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 Grantor as an additional insured. The Town shall deliver the certificate of insurance naming Grantor as an additional insured prior to accessing the Property for the first time. 7. Notwithstanding anything contained in this Easement Agreement to the contrary, Grantor may terminate the easements granted hereunder upon ninety (90) days written notice to the Town. 8. 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. Lot 67, Block 2, Benchmark At Beaver Creek, Amendment No. 6, Temporary Construction Easement Agreement Page 2 of 5 CM -426 Grantor: Dillon Real Estate Co., Inc. 65 Tejon Street Denver, CO 80223 Attn: Real Estate Dept. 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 Agreement. 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 Easement 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 Easement 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. Lot 67, Block 2, Benchmark At Beaver Creek, Amendment No. 6, Temporary Construction Easement Agreement Page 3 of 5 CM -426 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. Lot 67, Block 2, Benchmark At Beaver Creek, Amendment No. 6, Temporary Construction Easement Agreement Page 4 of 5 CM -426 IN WITNESS WHEREOF, the Grantor has executed this Temporary Construction Easement Agreement on the date first written above. DILLON RE ESTATE CO., INC., a K corpor tion By: <; 4e}F f� l' STATE OF a l 6 ) ss. COUNTY OF The foregoing instrument was acknowledged before me this day of fy) r , 2009, by Awk W. 4.ku w.* � as V; u. Pu4l&tm;;* of .� 14 Di Ilaa ems-¢ E6+0', Cz . a -Xti c ., CZ ko4w a. an.p'Nodxw- Witness my hand and official seal. C Notary ublic My commission expires: ( '[- k� q2 Easement Agreement accepted and approved by the Town wo Attest: Ronald C. Wolfe Patty McKenny, Town Clerk Date: LINDA L. JORG Notary Public, State of Ohio My Commission Expires November 15, 2009 Lot 67, Block 2, Benchmark At Beaver Creek, Amendment No. 6, Temporary Construction Easement Agreement Page 5 of 5 Inter-Mountain iENGINEERING Civil Engineers & Surveyors REAL PROPERTY TO BE ACQUIRED FOR TEMPORARY EASEMENT FOR THE TOWN OF AVON, EAST BEAVER CREEK BOULEVARD RECONSTRUCTION PARCEL TE -67A DESCRIPTION A PARCEL OF LAND NO. PE -67A OF THE TOWN OF AVON, STATE OF COLORADO, CONTAINING 0.018 ACRES, MORE OR LESS, SITUATED IN LOT 67, BLOCK 2, BENCHMARK AT BEAVER CREEK, AMENDMENT NO.6 AS RECORDED IN THE OFFICE OF THE CLERK AND RECORDER OF EAGLE COUNTY, COLORADO, AT BOOK 282, PAGE 111, ON FEBRUARY 20, 1979, BEING MORE PARTICULARLY DESCRIBED AS FOLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 67 AND BEING ON THE SOUTH RIGHT OF WAY LINE OF EAST BEAVER CREEK BOULEVARD; THENCE SOUTH 54 022'45" EAST ALONG THE NORTH LINE OF SAID LOT COMMON TO THE SOUTH RIGHT OF WAY LINE OF EAST BEAVER CREEK BOULEVARD A DISTANCE OF 57.12 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 35 037'15" WEST A DISTANCE OF 9.67 FEET; THENCE SOUTH 49 °4331" EAST A DISTANCE OF 62.11 FEET; THENCE SOUTH 69 025'55" EAST A DISTANCE OF 11.91 FEET TO A POINT ON THE NORTH LINE OF SAID LOT COMMON TO THE SOUTH RIGHT OF WAY LINE OF EAST BEAVER CREEK BOULEVARD AND ON A ?VON- TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 50.00 FEET; THENCE ALONG SAID CURVE AND SAID COMMON LINE A DISTANCE OF 34.78 FEET THROUGH A CENTRAL ANGLE OF 39 °51'38 ", HAVING A CHORD BEARING AND DISTANCE OF NORTH 34 026'56" WEST, 34.09 FEET TO A POINT OF TANGENCY; THENCE NORTH 54 022'45" WEST ALONG SAID COMMON LINE A DISTANCE OF 41.37 FEET TO THE TRUE POINT OF BEGINNING. THE ABOVE DESCRIBED PARCEL CONTAINS 788 SQUARE FEET (0.018 ACRES), MORE OR LESS. I HEREBY STATE THAT THE ABOVE DESCRIBED LEGAL DESCRIPTION HAS BEEN PREPARED BY ME OR UNDER MY DIRECT SUPERVISION. 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 1 PO Box 978 1 Avon, CO 81620 1 Phone: 970.949.5072 1 Fax: 970.949.9339 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 -00235 M C on N .4 :t t OOM 4V Z u) 11 a) c0 tr) 0 a I ^1 U M U opr'/cD N �Jh -G Q�Q rn Z O co : d. 0 On�toM4 Q Q C7 1In Y M Z M tL Z p� Z2 / Co JF000 \ ` -_0 a0U / \ \3 W LLJ O m / 0 M Q0 W w Q 4N . o z J m M Q w C ~ J a G \ Qcofl / I to \� \ LAJ Z�� \ ti �o F�6 a F �F U W F o�F4 U <gin _ o � � 4 WY W � Z Q m 4 a z O y� q O W Z O m � v N Y � O U Z W m % a n Q O J lilt] t+ as + o -Ig I� It _ IN Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Justin Hildreth, Town Engineer'VO�- Shame Pegram, Engineer II Date: March 17, 2009 Re: Resolution No. 09-07, Approving the Temporary Easement Agreement for a Parcel of Land, TE -67A, Located at Lot 67, Block 2, Benchmark at Beaver Creek, Amendment 6, For the Purpose of Constructing the East Beaver Creek Boulevard Streetscape Improvements Summary: Attached to this Memorandum is Resolution 09 -07, a Resolution that approves the Temporary Easement Agreement necessary to construct the East Beaver Creek Boulevard Streetscape Improvements on lot 67, Block 2, Benchmark at Beaver Creek, Amendment 6. Lot 67 is located at 260 Beaver Creek Place and is known as City Market. 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 side of East Beaver Creek Blvd next to City Market. The new sidewalk will be constructed within Town of Avon Right of Way. The parcel of land, TE -67A, allows construction activities necessary to complete the sidewalk. Financial Implications: There is $300,000 budgeted for the East Beaver Creek Blvd. Streetscape Project. The $1,773 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 -07. Proposed Motion: I move to approve Resolution No. 09 -07, Series of 2009, A Resolution Approving the Temporary Easement Agreement for a Parcel of Land, TE -67A, Situated in Lot 67, Block 2, Benchmark at Beaver Creek, Amendment 6, For the Purpose of Constructing the East Beaver Creek Boulevard Streetscape Improvements Town Manager Com Attach ts: Exhi it A Resolution 09 -07 Series of 2009 Exhibit B Temporary Easement Agreement, TE -67A