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07-01-2006 Lease Agreement Traer Creek Tract B Snow StorageTOWN OF AVON, COLORADO RESOLUTION 06-29 SERIES OF 2006 A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE TOWN AND TRAER CREEK RP, LLC WHEREAS, by Resolution No. 06-30 the Town Council will approve a STONE CREEK ELEMENTARY SCHOOL LEASE BETWEEN TOWN OF AVON AND STONE CREEK ELEMENTARY ("the School Lease") whereby the Town will lease Lot 5, The Village at Avon, Filing 1 ("Lot 5"), to Stone Creek Elementary for a term from July 1, 2006, to June 31, 2007; and WHEREAS, Lot 5 is currently designated as a public works site pursuant to the Annexation and Development Agreement for The Village (at Avon); and WHEREAS, Traer Creek RP, LLC has proposed to enter into a LICENSE AGREEMENT to provide to the Town an alternative public works site during the term of the School Lease; NOW, THEREFORE, BE IT RESOLVED: 1. The LICENSE AGREEMENT, a copy of which is filed with the minutes of this meeting, is hereby approved. 2. All action heretofore taken by the officers of the Town of Avon relating to the same is hereby ratified, approved and confirmed. 3. This Resolution is contingent upon the adoption of Resolution No. 06-30. ADOPTED at a regular meeting of the Town Council of the Town of Avon the 13th day of June, 2006. If v. ~EA1, cRonald C. Wolfe, Mayor ~R s 4 TOWN OF AVON, COLORADO RESOLUTION 06-29 SERIES OF 2006 A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE TOWN AND TRAER CREEK RP, LLC WHEREAS, by Resolution No. 06-30 the Town Council will approve a STONE CREEK ELEMENTARY SCHOOL LEASE BETWEEN TOWN OF AVON AND STONE CREEK ELEMENTARY ("the School Lease") whereby the Town will lease Lot 5, The Village at Avon, Filing 1 ("Lot 5"), to Stone Creek Elementary for a term from July 1, 2006, to June 31, 2007; and WHEREAS, Lot 5 is currently designated as a public works site pursuant to the Annexation and Development Agreement for The Village (at Avon); and WHEREAS, Traer Creek RP, LLC has proposed to enter into a LICENSE AGREEMENT to provide to the Town an alternative public works site during the term of the School Lease; NOW, THEREFORE, BE IT RESOLVED: 1. The LICENSE AGREEMENT, a copy of which is filed with the minutes of this meeting, is hereby approved. 2. All action heretofore taken by the officers of the Town of Avon relating to the same is hereby ratified, approved and confirmed. 3. This Resolution is contingent upon the adoption of Resolution No. 06-30. ADOPTED at a regular meeting of the Town Council of the Town of Avon the 13th day of June, 2006. it OF AS ! E.S E s s L t.~ r4~ ~r~ C. Ronald C. Wolfe, Mayor LEASE AGREEMENT THIS LEASE AGREEMENT (this "Agreement"), made effective as of the 1sT day of July, 2006 ("Effective Date"), is among TRAER CREEK RP, LLC, a Colorado limited liability company ("Landlord") and the TOWN OF AVON, a municipal corporation of the State of Colorado ("Town" OR "Tenant"). RECITALS A. WHEREAS, Landlord is the owner of that certain real property, known as Tract B, The Village (at Avon) Filing 3, according to the plat thereof recorded June 29, 2004 at Reception No. 882176 of the Eagle County, Colorado real property records. Such Tract is also informally known as Planning Area N South on the Village (at Avon) PUD Development Sketch Plan. B. WHEREAS, Landlord desires to lease 4.0 acres of the 5.765 parcel, known as Tract B (or Planning Area N South), to Tenant, as more specifically set forth in the attached map hereto and incorporated herein as Exhibit "A" ("the Premises"). Whereas Landlord further desires to grant Tenant access to the Premises as more specifically set forth in Exhibit "A." C. WHEREAS, Tenant desires to lease the Premises for a period of one year for snow, equipment and vehicle storage. D. WHEREAS, Landlord has agreed to allow Tenant to use the Premises for snow, equipment and vehicle storage, subject to the terms of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the sum of Ten ($10.00) Dollars, and other good and valuable consideration paid by Tenant, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Grant of Lease to Tenant: Subject to the terms, covenants and conditions set forth in this Agreement, Landlord hereby leases the Premises to Tenant, and its employees, contractors, agents and invitees, to use and possess the Premises during the Term of this Agreement for storage of snow, equipment and vehicles. Landlord further grants to Tenant access to the Premises as specifically set forth in Exhibit A. Tenant shall use the Premises only for the purposes described in this Agreement. 2. Term of Lease: The term of this lease (the "Term") shall commence on the Effective Date hereof and terminate at 11:59 p.m. MST on the 365th day following the Effective Date. 3. Additional Obligations: (a) Tenant shall, at its sole cost and expense, promptly comply with all applicable laws, rules and regulations relating to the Premises. Tenant shall further be obligated to comply with all environmental laws, federal and state rules and regulations and ordinances, as it would have to comply with such obligations on its own property. Tenant, however, shall not be obligated to do more than that which it is already obligated to do pursuant to those laws and should Tenant comply with those laws, Landlord shall hold Tenant harmless from any claims by Landlord, its successors or assigns arising out of the handling, treatmept, storage or disposal of any hazardous or toxic substance as defined under any applicable state or federal law including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act. (b) Tenant shall keep the Premises in a neat, clean and sanitary condition, consistent with the uses set forth in this Agreement, at all times during the Term of this Agreement. 4. _Alterations. Tenant shall make no material alterations, additions or improvements in or to the Premises without Landlord's prior written approval and consent for items and or improvements. 5. Insurance: (a) During the Term of this Agreement, Tenant shall maintain, at its sole cost and expense, the following policies of insurance: (i) Commercial general liability insurance in an occurrence format in an amount of $3,000,000 per occurrence, including the following coverages: contractual liability, personal injury, broad form property damage, and independent contractors insurance. Such policies shall include a provision requiring a minimum of 30 days' notice to Landlord of any change or cancellation. Landlord shall be named as an additional named insured as its interests may appear on this policy. (ii) Comprehensive automobile liability insurance on all vehicles used in connection with this Agreement, in an amount of $1,000,000 combined single limits for bodily injury and property damage, per occurrence. Tenant shall legally obligate its subcontractors, either contractually or otherwise, to obtain identical coverage. Landlord shall be named as an additional insured as its interests may appear on Tenant's and any subcontractor's policies. (b) During the Term of this Agreement, Landlord shall maintain, at its sole cost and expense, its current commercial general liability insurance on the immediately adjacent property to the Premises, known as Tract G, The Village (at Avon) Filing 3. 6. Quiet Enioyment: Landlord covenants and agrees with Tenant that upon Tenant observing and performing all the terms, covenants and conditions of this Agreement on Tenant's part to be observed and performed, Landlord shall not, subject to Section 9, below, disturb Tenant's peaceable and quiet enjoyment of the Premises during the Term of this Agreement. 7. Acceptance of Premises: Taking possession of the Premises by Tenant shall be conclusive evidence against Tenant that the Premises were in good order and that the Town accepted the condition of the Property when possession was taken. Notwithstanding that fact, the Premises is made available to Tenant in its "as is" condition on the commencement date of the Term. 8. Landlord Access to Premises: Landlord and its agents, upon reasonable notice to Tenant, shall have the right to enter the Premises at all times to examine them, to show the Premises to prospective purchasers, mortgagees, lenders or others, and to make and perform such maintenance or repairs as Landlord may deem necessary or desirable, on the condition that Landlord shall use all reasonable efforts to minimize interference with the Tenant's operations. Further, absent a formal assignment of this Agreement, any new owner of the Premises shall also have the right of entry. 9. Assignment and Subletting: (a) Tenant shall not assign, convey, mortgage, hypothecate or encumber its rights in this Agreement at any time during the Term hereof without the prior written consent of Landlord. (b) Landlord may assign, convey, mortgage, hypothecate or encumber its rights and obligations in the Premises at any time during the Term hereof without the prior written consent of Tenant. 10. Indemnity: (a) To the full extent allowed by law, Tenant shall indemnify, defend and hold harmless Landlord, its subsidiaries and affiliates, and their respective agents, officers, directors, servants and employees of and from any and all costs, expenses (including without limitation reasonable attorneys' fees), liability, claims, liens, demands, actions and causes of action whatsoever arising out of or related to any loss, cost, damage or injury, including death of any person or damage to property of any kind, which damage, loss or injury is caused by the breach of this lease or the willful misconduct or negligent acts, errors or omissions of Tenant, its subcontractors or any person directly or indirectly employed by them, or any of them, while engaged in any activity on or associated with the Premises. (b) To the full extent allowed by law, Landlord shall indemnify, defend and hold harmless Tenant, its agents, officers, directors and employees of and from any and all costs, expenses (including without limitation reasonable attorneys' fees), liability, claims, liens, demands, actions and causes of action whatsoever arising out of or related to any loss, cost, damage or injury, including death of any person, or damage to property of any kind, which damage, loss or injury is caused by the breach-of this lease or the-willful misconduct or negligent acts, errors or omissions of Landlord, its subcontractors or any person directly or indirectly employed by them, Traer Creek Metropolitan District, or any of them, while engaged in any activity on or associated with the Premises. 11. Default: If either party neglects or fails to perform or observe any of the terms or covenants herein contained to be performed or observed by that party, and that defaulting party fails to remedy such default within ten (10) days after receiving written notice specifying such neglect or failure (or within such period, if any, as may be reasonably required to cure such default if it is of such nature that it cannot be cured within such 10-day period, provided that the defaulting party commences to remedy such default within such ten-day period and proceeds with reasonable diligence thereafter to cure such default), that party shall be declared in default of this Agreement. 12. Remedies: If Tenant shall default under this Agreement as set forth in Section 11, Landlord shall have all remedies at law or equity, including but not limited to Landlord's right to terminate this Agreement, re-enter and take possession of the Premises and/or pursue any statutorily mandated court proceeding. If Landlord shall default under this Agreement as set forth in Section 11, Tenant shall have all remedies at law or equity, including but not limited to the remedies of specific performance or termination of this Agreement. The remedies of Landlord and Tenant shall be cumulative and the exercise of one remedy shall not be deemed to have been an election of remedies to the exclusion of any other remedies available. No delay or omissions by either party to exercise any right or power arising from a breach by the other party of any of the terms of this lease shall impair any such right or power or shall be construed to be a waiver of any breach or an acquiescence therein. 13. End of Term: At the expiration of or earlier termination of this Agreement, Tenant shall quit and surrender the Premises to Landlord in as good order as they were in on commencement date of the Agreement and with no material change from the condition they were in on that same date, with all temporary improvements thereon removed, subject to the provisions of 3(a) hereof. 14. Waiver of Subrogation: Landlord and Tenant respectively waive all rights of recovery against the other, or the officers, directors, employees and agents of the other, for loss of or damage to such waiving party of its property or the property of the other under its control, arising from any cause insured against under the standard form of fire insurance policy (with all permissible extension endorsements covering additional perils) or under any other policy of insurance carried by such waiving party in lieu thereof. 15. Holdover By Tenant: In the event Tenant remains in possession of the Premises after the expiration of this Lease, and without the execution of a new lease, Tenant, at the option of Landlord shall be deemed to be occupying the Premises as a Tenant from month to month. Tenant shall be entitled to occupy the Premises at the current rental rate for a period of six months. Thereafter, Tenant shall be required to pay to Landlord rent in the amount of $1,666.00 per month, constituting fair market value of the Premises. Rent shall be paid on the I" day of the month. During the holdover period in question, all of the terms and conditions hereof then in effect (excepting the rent provision) shall remain in effect for the entire holdover period. 16. Subordination. Non-disturbance and Attornment: (a) This Lease is also subject and subordinate to any mortgage which may hereafter affect this Lease or the real property of which the Premises are a part provided that (a) each such mortgage shall contain a provision in substance and effect that the Mortgagee, by acceptance of the mortgage, covenants and agrees on behalf of itself and those at any time holding by, through or under it, for the benefit of Tenant, and those, at any time holding by, through or under Tenant, that unless Tenant shall have suffered an Event of Default under the provisions of this Lease and notice of termination of this Lease shall have been given as provided in this Lease and not revoked, the holder of any such mortgage to which this Lease may be subordinated shall not name or join Tenant or anyone holding by, through or under Tenant as a party defendant or otherwise in any suit, action or proceeding for the foreclosure of such mortgage or in any manner interfere with Tenant's rights hereunder and Tenant shall not be disturbed in its enjoyment of the Premises or its interests herein by the Mortgagee or anyone holding by, 4 through or under the Mortgagee to the end that this Lease and the possession of the Premises by Tenant shall not be disturbed or affected by reason of such foreclosure. In lieu of the non- disturbance provision being contained in the mortgage, such provision can be contained in a separate non-disturbance agreement delivered by such mortgagee to Tenant which agreement Tenant shall promptly execute upon request. (b) This clause shall be self-operative and no further instrument of subordination shall be required by any mortgagee, affecting any lease or the real property of which the Premises are a part. In confirmation of such subordination, Tenant shall execute promptly any certificate that Landlord may request. 17. Notice: Any notice, demand or communication which either party may desire or be required to give to the other party shall be in writing and shall be deemed sufficiently given or rendered if delivered personally or sent by first class United States mail, postage prepaid, addressed as follows: If to LANDLORD: Traer Creek RP, LLC P.O. Box 9429 322 E. Beaver Creek Blvd. Avon, Colorado 81620 If to TENANT: Town of Avon P.O. Box 975 400 Benchmark Road Avon. CO 81620 Either party shall have the right to designate in writing, served as provided above, a different address to which any notice, demand or communication is to be mailed. 18. Certificates: Landlord and Tenant shall, without charge, at any time and from time to time, within ten (10) days after request by the other, execute, acknowledge and deliver an estoppel certificate containing such information as the party requesting the same may reasonably request. - - - - 19. Paragraph Headings: Paragraph or other headings contained in this Agreement are for referenced purposes only and are not intended to affect in any way the meaning or interpretation of this Agreement. 20. Binding Effect: This Agreement will not be binding on or constitute evidence of a contract between the parties until such time as it has been executed by each party and an original thereof delivered to each other party to this Agreement and Ratification has occurred. 21. Additional Documentation: At all times, the parties hereto agree to execute and deliver, or to cause to be executed and delivered, such documents and to do, or cause to be done, such other acts and things as might reasonably be required in order to confirm or effectuate the provisions of this Agreement. 22. No Representations or Warranties: There are no representations and warranties by the parties, their agents, servants and employees whether oral or in writing, relating to or concerning this Agreement other than as specifically set forth herein. Each of the parties hereto warrants and represents to the other that it is authorized or empowered to enter into this Agreement and perform the terms hereof. 23. Entire Agreement: This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior written and oral agreements and understanding relating to the subject matter hereof. 24. Modification: This Agreement may not be modified, amended or discharged except by an instrument in writing signed by the parties hereto. No waiver or consent may be enforced unless such waiver or consent shall be in writing and signed by the party against whom enforcement thereof is sought. 25. Applicable Law: This Agreement shall be governed by the laws of the State of Colorado. 26. Successors and Assigns: This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns. 27. No Negative Inference Against Preparer: This Agreement is the result of negotiations between the parties, each of whom is represented by counsel of its own choosing. All parties shall be deemed to have drawn this Agreement and no negative inference or interpretation shall be made by a court against the party whose counsel drafted this Agreement. 28. No Modification to PUD: This Lease Agreement and the intended use of the Premises are permitted by and do not require or effect a modification to or amendment of the Annexation and Development Agreement between Traer Creek and the Town of Avon, the Village (at Avon) PUD Guide, or the associated PUD Development/Sketch Plan (collectively, the "Development Plan"). Operation on an interim basis of snow, equipment and vehicle storage at the location specified in and otherwise subject to the terms and conditions of this Lease Agreement will not be construed as limiting any future uses within Tract B, The Village (at Avon) Filing 3 that otherwise are permitted under the Development Plan, or as effecting a waiver by Owner or the-Town_of any-rights_under_the- agreements constituting the Development Plan. Operations of the Town pursuant to this Lease Agreement are intended to be on an interim basis only, and do not constitute a commitment by Landlord that the Town's operations will be housed on a permanent or semi-permanent basis at this location or otherwise within the Village (at Avon). 29. Traer Creek Design Review and Special Review Use: Landlord shall not unreasonably withhold any approval by the Traer Creek Design Review Board to the Town of Avon or unreasonably withhold any consent to the special review use by the Town of Avon, and for which relate to any matter necessary to carry out the purpose of this Agreement. IN WITNESS WHEREOF, the Parties have hereunto caused this Lease Agreement to be executed on their behalf the day and year first above written. 6 TRAER CREEK RP, LLC, a Colorado limited liability company B) Nz Til TOWN OF AVON, a municipal corporation of the State of Colorado By: Name: ~j 0 Title: M /4 f A Al E 7 I,, i ~k r•' 4 x r: i v`a q G i n = 9Y ~ ~ ~Gt tae. 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