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TC Ord. No. 2014-12 APPROVING THE DEED OF EASEMENT FOR A PARCEL OF LAND, LOCATED AT LOT 2, RIVERSIDE AND LOT 1TOWN OF AVON ORDINANCE 14 -12 SERIES of 2014 AN ORDINANCE APPROVING THE DEED OF EASEMENT FOR A PARCEL OF LAND, LOCATED AT LOT 2, RIVERSIDE AND LOT 1 EAGLE RIVER AT AVON, TOWN OF AVON, COLORADO FOR THE PURPOSE OF CONSTRUCTING THE EAGLE VALLEY TRAIL WHEREAS, the Town Council has previously directed, authorized, and budgeted for acquisition of easements required for the Eagle Valley Trail; WHEREAS, Section 2.1 of the Avon Home Rule Charter provides that the Town Council may acquire real property interests and Colorado Revised Statutes section 31- 15- 101(1)(d) provides that municipalities may acquire and hold real property; WHEREAS, the Town Council finds that acquisition of this Deed of Easement from The Vail Corporation complies with and implements the Avon Comprehensive Plan, including Goal G. Parks, Recreation and Open Space, Goal G1 "Provide an exceptional system of... trails .. to serve the year -round leisure -time needs of area residents and visitors ... ;" Policy G1.2 "The Town will continue to evaluate and acquire ... easements for ... trails and recreation ... ;" Policy G1.3 "The Town's recreational trail'system will integrate with the regional trail system. . . ; "; and, Policy G1.5 "The Town will coordinate with Eagle County .... in providing access and linkage opportunities ... ;" WHEREAS, the Town Council finds that acquisition of the Deed of Easement attached hereto shall promote the health, safety and general welfare of the Avon community by allowing improvements to the Eagle Valley Trail that enhance bicycle and pedestrian safety; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Deed of Easement Approved. The attached Deed of Easement for a Parcel of land located at Lot 2, Riverside and Lot 1, Eagle River at Avon, Town of Avon, Eagle County, Colorado, is hereby approved and accepted. Ord. No 14 -12 Accepting Easement for Eagle Valley Trail from Vail June 15, 2014 Page 1 of 3 Section 3. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and Town Clerk are authorized to execute documents related to all documents approved in this Ordinance and take such other actions as may be reasonably necessary to implement the actions in this Ordinance, including but not limited to designating the order of recording of such documents and executing other necessary and customary documents at closing which have been reviewed and approved by the Town Attorney. 'The Mayor, Town Clerk and Town Attorney may collectively review and approve the completion of documents, correction of typos, grammatical errors, cross - reference errors, and revisions which do not alter the substantive terms of any of the documents approved in this Ordinance. Section 4. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications- of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term "provision" means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term "application" means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 5. Effective Date. This Ordinance shall take effect thirty days after public notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. [Signature page follows] Ord. No 14 -12 Accepting Easement for Eagle Valley Trail from Vail June 15, 2014 Page 2 of 3 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for August 12, 2014 at the Council Chambers of the Avon Municipal Building, to ed at One Lake Street, Avon, Colorado, on July 15, 2014. Rich Carroll, Mayor Published by posting in at least three public places in Town and posting at the office of the Town Clerk at least six days prior to final action by the Town Council. ATTEST: Debbie Hoppe oT wn Clerk APPR D AS TO FO Eric 'J. F61 own Attorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on August 12, 2014. Rich Carroll, Mayor Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk. ATTEST: Debbie Hoppe, To n Clerk Ord. No 14 -12 Accepting Easement for Eagle Valley'rrail from Vail June 15, 2014 Page 3 of 3 Eagle County, CO Teak J Simonton Pgs: 8 REC: $46.00 DOC: $0.00 DEED OF EASEMENT 201418574 10/29/2014 02:41:09 PM TN THIS DEED OF EASEMENT (this "Agreement ") is made this _/!C day of 201+ between THE VAIL CORPORATION, a Colorado corporation ( "Vail "), whose address is 390 Interlocken Crescent, Broomfield, Colorado 80021 and the TOWN OF AVON, a Colorado home rule municipal corporation ( "Town "), whose address is P.O. Box 975, Avon, Colorado 81620. RECITALS A. Vail is the owner of certain real property located within the Town of Avon, Eagle County, Colorado, identified as Lot 1, Eagle River at Avon and Lot 2 Riverside located on the southeast corner of Highway 6 and Avon Road (the "Vail Property"). B. Town desires to construct public recreation path improvements to the Eagle River Trail, located along the perimeter of the Vail Property, as generally shown on Exhibit A. attached hereto and made part hereof, including all underground, surface and streetscape appurtenances (the "Improvements "). C. Town requests and the Vail agrees to enter into an easement agreement on the Vail Property, subject to and based upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Vail and the Town hereby acknowledge and agree as follows: 1. Grant. Vail hereby grants and conveys to the Town a non - exclusive perpetual easement ( "Easement ") to install, operate, maintain, repair, reconstruct, replace, inspect and remove, at any time and from time to time, the Improvements, together with access to and over a portion of the Vail Property shown on Exhibit A (the "Easement Area ") for the purpose of Town providing a recreation path accessible by the general public. 2. Limitations and Reservation of Rights. Vail reserves the right to use the Easement Area for purposes which will not materially interfere with Town's full enjoyment of the rights in this Agreement, including, but are not necessarily limited to, the following: (a) Vail shall not erect or construct any building or other structure, or drill or operate any well, or construct any permanent obstruction, or subtract from or add substantially to the ground level in the Easement Area without obtaining the specific written permission of the Town, which permission shall not be unreasonably withheld, delayed or conditioned; (b) Vail shall take no action which would permanently impair or in any way permanently modify the surface of, or the lateral or subjacent support for, the aforementioned improvements and appurtenances within the Easement Area without obtaining the specific written permission of the Town, which permission shall not be unreasonably withheld, delayed or conditioned. (c) Notwithstanding the foregoing, Vail reserves the right to place utilities and /or to construct improvements within the Easement Area not inconsistent with the use of the Easement and Vail agrees at its own expense to restore the Easement Area to its prior condition in the event of the disturbance of the Easement Area. Further, Town hereby grants to Vail the same rights, upon the same conditions, as are contained herein, on other portions of the recreation path not on Vail's property provided Vail obtains and provides to Town the written permission of the Vail of the property involved. (d) Vail further reserves the right to temporarily or permanently relocate the Easement to a new location reasonably acceptable to the Town in association with the improvement of the Vail Property. Any such relocation shall be at the expense of Vail and shall include replacement of the Improvements with improvements of similar condition and quality. Any interruption of use of the Easement by the public shall be kept to a minimum. (e) The Town covenants that neither it nor its employees, agents, contractors or representatives shall dispose of, generate, manufacture, release or store environmentally hazardous substances on or about the Easement Area. Vail disclaims any responsibility for any environmental impact on or adjacent to the Easement Area arising from the construction and use of the Easement. (f) Nothing herein shall preclude or limit the Vail's ability to construct improvements on the Vail Property, including, but not limited to, temporary closures of the Improvements during construction, if necessary, and access to or from the Vail Property. 3. Liabili1y. Vail shall not be liable for any loss, injury, death or damage to any person or personal property which may arise from the use or condition of the recreation path including, but not limited to loss, injury, death or damages resulting from ice, water, rain, snow, gas, electrical wires, fire or theft. 4. Indemnification. To the extent permitted by law, Town agrees to indemnify, defend and hold harmless Vail, its designees, agents, employees, officers, directors, shareholders, successors and assigns, the Easement and the Vail Property (including, without limitation, claims made directly by the Town) from and against any and all claims, causes of action, costs, damages, expenses and liabilities (including, without limitation, reasonable legal fees) arising from or related to use of the Easement, and /or the Vail Property by (i) the Town, its designees, agents, employees, officers, directors, shareholders, successors and assigns, (ii) the general public or (iii) by any person acting through or on behalf of the Town (collectively, the "Town Permittees"), arising from or related to any negligent acts or omissions, intentional misconduct and any mechanic's or materialmen's liens caused or permitted by the Town or the Town Permittees in connection with the Easement and /or the Vail Property or otherwise arising under this Agreement, except those caused by the willful misconduct or gross negligence of Vail or its designees, agents, employees, officers, directors, shareholders, successors or assigns. 2 5. Mechanic's Liens. The Town, its employees, agents, contractors and representatives, shall be prohibited from taking any action or omission that subjects the Easement area to liens of any kind, including, but not limited to, construction, mechanic's or materialmen's liens (collectively, "Liens "). In the event the Easement area or the balance of Vail's property becomes subject to any such Liens directly or indirectly through the action or inaction of the Town, its employees, agents, contractors, or representatives, the Town shall discharge and bond off any such Liens within five (5) days of the imposition of any such Liens, and the failure to do so shall permit Vail to pursue all of its rights and remedies under this Agreement, at law, or equity. 6. Statutory Basis. The parties agree that this Agreement is entered into in accordance with the provisions of Colorado Revised Statutes §§ 33 -41 -101 et. Seq.. 7. Insurance. The Town agrees to cause Vail to be an additional insured on its commercial general liability insurance for bodily injuries or death of persons or property damage occurring in or about the Easement granted to it pursuant to this Agreement. All such insurance shall (a) generally cover the liability and indemnity obligations assumed by the Town under this Agreement; (b) be primary and noncontributing with any insurance which may be carried by the other party; and (c) provide that said insurance shall not be cancelled or coverage changed unless thirty (30) days' prior written notice shall have been given to Vail. The Town shall furnish Vail with a certificate or certificates evidencing that the required insurance policies are in full force upon written request. 8. Commencement of Construction. In the event that the Town does not commence construction on the Improvements by July 1, 2015, this Agreement shall automatically terminate and be null and void. In such event, the Town shall, at its sole cost and expense, prepare and execute such reasonable documentation that Vail deems necessary or appropriate to effect such reversion in a form and content acceptable to Vail which document shall thereafter be recorded in the real property records of Eagle County, Colorado. 9. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by certified mail, return receipt requested, postage prepaid. Any such notice or other communication shall be effective when such notice is delivered to the addresses set forth below: If to Vail: The Vail Corporation Attn: Director of Land Development 137 Benchmark Road P.O. 959 Avon, Colorado 81620 Email: bkennedy @vailresorts.com With a copy to: The Vail Corporation 3 Attn: Real Estate Counsel 390 Interlocken Crescent Mailstop I -88 Broomfield, Colorado 80021 Email: legalnotices @vailresorts.com If to Avon: The Town of Avon Attn: Virginia Egger Town Manager P.O. Box 975 Avon, CO 81620 Telephone: 970-748-4452 Email: vegger @avon.org With a copy to: Eric J. Heil, Esq., A.I.C.P. P.O. Box 975 Avon, CO 81620 Telephone: 303-975-6120 Email: eheil @avon.org 10. Miscellaneous. (a) Amendment. Modification. No provision or term of this Agreement maybe amended, modified, revoked, supplemented, waived, or otherwise changed except by a written instrument duly executed by the parties hereto. (b) Entire Agreement. This Agreement constitutes and incorporates the entire agreement among the parties hereto concerning the subject matter of this Agreement and supersedes any prior agreements concerning the subject matter hereof. (c) Severability. If any provision of this Agreement shall be held invalid, illegal, or unenforceable in any jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not be impaired thereby; nor shall the validity, legality, or enforceability of any such defective provisions be in any way affected or impaired in any other jurisdiction (d) Assignment. This Agreement is not assignable by the Town without the prior written approval of Vail. (e) Third -Party Beneficiaries. Except as provided herein, the agreements contained herein are solely for the benefit of the parties hereto and no other person or entity shall be a third party beneficiary thereof. 4 (f) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. (g) Authorization. Each parry is authorized and empowered to execute this Agreement and all necessary corporate action has been taken to authorize execution of this Agreement. (h) Execution. The parties shall execute and deliver such further documents as may be reasonably required in order to effectuate the intent of this Agreement. (i) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to constitute an original; provided, however, that this Agreement will not become binding upon any party unless and until executed (whether or not in counterpart) by all the parties. (j) Recording. This Agreement shall be recorded with the Clerk and Recorder for the County of Eagle, State of Colorado. (k) Run with the Land; Successors and Assigns. The terms and provisions of this Agreement shall run with the Vail Property and title to the Vail Property and be binding upon and inure to the benefit of the successors and assigns of Vail. Subject to the provisions of contained herein, the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Town. (1) Exhibits. All exhibits attached to this Agreement are incorporated herein by this reference and made a part hereof. (m) Provisions Incorporated in Deeds. Each provision contained in this Agreement shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any of the Vail Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. [Remainder of page intentionally left blank] [Signatures on following pages] IN WITNESS WHEREOF, the parties hereto have executed this Agreement to become effective as of the date first written above. VAIL: THE VAIL CORPORATION, a Colorado corporation By: Name: Alex enderian Title: Senio Vice President & COO - VRDC STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The fore ping instrument was acknowledged before me this day of 20 �$ by Alex Iskenderun as Senior Vice President & COO - VRDC of The Vail Corporation, a olorado corporation. My commission expires: L�— '4— �'� Witness my hand nd'official-s ISABEL D. THOMPSON� NOTARY PUBLIC Notary Public STATE OF COLORADO NOTARY ID 19974015476 1WC0MW86I0NLV*M!!%jM [Town signature on following page] 2 TOWN: TOWN OF AVON By: Rich Carroll, Mayor ATTEST: rJ,M� 4�UK? Debbie Hoppe, To n Clerk STATE OF COLORADO } } ss. COUNTY OF EAGLE } The foregoing document was subscribed and sworn to before me this j S day of hJ6 20 -4, by Rich Carroll as Mayor and Debbie Hoppe as Town Clerk of the Town of Avon. Witn ss my hand and seal. My commission expires: 3 - /" / e otary Public [End of signatures] 7 KENNETH B. DAM NOTARY PUBLIC STATE OF COLORADO NOTARY ID 2010400e"5 MY COMMISSION EXPIRES 3/1 /2018 Easement Description That part of Lot 1, Eagle River at Avon, and Lot 2, Riverside, according to the maps thereof recorded at Reception Nos. 201007178 and 408979 respectively in the office of the Eagle County, Colorado, Clerk and Recorder, described as follows: Beginning at a point on the southerly boundary line of said Lot 1, also being the northerly Right -of -Way line of U.S. Highway 6 & 24 whence the Center 1/4 corner of Section 12, Township 5 South, Range 82 West of the Sixth Principle Meridian bears N48'18'56 "W 97.08 feet; thence departing said line 585'31'08 "E 9.67 feet; thence 16.52 feet along the arc of a curve to the right, having a radius of 57.00 feet, a delta angle of 16'36'12 ", and a chord that bears S77'13'02 "E 16.46 feet; thence S68'54'56 "E 34.71 feet; thence N19'39'43 "E 8.16 feet; thence S70'20'17 "E 18.00 feet; thence S19'39'43 "W 4.28 feet; thence S70'20'17 "E 41.00 feet; thence N19'39'43 "E 3.25 feet; thence 570'20'17 "E 22.08 feet; thence N19'39'43 "E 2.48 feet; thence 25.55 feet along the arc of a non - tangential curve to the left, having a radius of 17.90 feet, a delta angle of 81'46'07 ", and a chord that bears N65'05'33 "E 23.43 feet; thence N24'12'30 "E 8.44 feet; thence S71'50'06 "E 156.09 feet; thence S4932'42 "E 10.84 feet; thence 34.11 feet along the arc of a non - tangential curve to the left, having a radius of 22.66 feet, a delta angle of 86'15'08 ", and a chord that bears S17'10'41 "E 30.98 feet; thence S60'18'15 "E 13.41 feet to a point on the southerly boundary line of said Lot 2, also being the northerly Right -of -Way line of U.S. Highway 6 & 24; thence the following two courses along said line: 1) N74- 07 -05-W (N74'21'44 "W) 82.31 feet; 2) 274.68 feet along the arc of a curve to the left, having a radius of 3870.00 feet, a delta angle of VO4'00 ", and a chord that bears N71'30'23 "W 274.62 feet to the point of beginning, containing 0.1507 acres more or less. Bearings shown in the above description have been rotated from platted [shown in ()] to match found monuments in field. Stan Hogfeldt A� Colorado PLS #26598 Date: LINE BEARING DISTANCE ARC L�TANG5ENT L1 585'31'08 E g,g7' L2 S68'54'S6 "E 34.71' L3 N19'39 43 "E 8.16' L4 S70'20 '17 "E 18.00' L5 S19'39'43 "W 4.28' L6 S70'20' 17 "E 41.00' L7 N19'39'43 "E 3.25' LS 570'20'17 "E 22.08' L9 N19'3943 "E 2.48' L10 N24'12'30 "E Ill 571 50 06 E 156.09 L12 S48'32'42 "E 10.84' L13 S60'1815 "E 13.41' L14 N74'07'05 82.31' LINE BEARING DISTANCE ARC L�TANG5ENT L1 585'31'08 E g,g7' L2 S68'54'S6 "E 34.71' L3 N19'39 43 "E 8.16' L4 S70'20 '17 "E 18.00' L5 S19'39'43 "W 4.28' L6 S70'20' 17 "E 41.00' L7 N19'39'43 "E 3.25' LS 570'20'17 "E 22.08' L9 N19'3943 "E 2.48' L10 N24'12'30 "E 8.44' 1 • • •• • CURVE DELTA ANGLE RADIUS ARC L�TANG5ENT CHORD BEARING CHORD L ENGTH C1 16'36'32 5700' 16.52' S77'13'02 'E 16.46' C2 81'46 07" 17.90' 25.55' N65'05'33 "E 23.43' C3 86'15'08" 22.66' 34.11' 21.22' 517'10'41 E 30.98' C4 04'04'00' 3869.99' 274.68' 137.40' 571'30'23 "E 274.62' SEWER EASEMENT X�� N48'18'56 "W 97.08' (TIE) FOUND CX COR. SEC. 12, T5S, R82W, 6TH P.M. Wk" ALUM. CAP LS# 26626 (0.5' BELOW GRADE) LOT 1 EAGLE RIVER AT AVON (R.N. 201007178) t4 .`YL5<G L7 C4 PROPOSED BRIDGE LOT 2 TRACT A RIVERSIDE RIVERSIDE (R.N. 408979) (R.N. 408979) PER......._... EASEMENT (SHADED) ION S y�cywgY 6 & 24 : ice•. �, r'�.,.GL 41199 WGHWAY 6 & 24, EAGLE -VAIL 0 FOUND BRASS HWY P.O. RDS 1Co. VqR� R.O.W. MONUMENT SET EOWARDS, CO. 61632 �S� (970)949 -1406 IN CONCRETE PROPOSED MSE WALL (TYPICAL) w �_�l3 JOB No. 3288 -3