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HomeMy WebLinkAbout2025-53 A Resolution of the Vail Town Council Granting Certain Easements to the Eagle River Water and Sanitation DistrictRESOLUTION NO. 53 SERIES OF 2025 A RESOLUTION OF THE VAIL TOWN COUNCIL GRANTING CERTAIN EASEMENTS TO THE EAGLE RIVER WATER AND SANITATION DISTRICT (THE “ERWSD”) WHEREAS, the Town wishes to grant, and the ERWSD wishes to acquire, three separate easements for the construction, installation, removal, replacement, maintenance, operation and repair of water line facilities set forth in Exhibit A, Exhibit B and Exhibit C, attached hereto and incorporated herein by this reference (the "Easements"). NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Town Council hereby approves the grant of the Easements in substantially the same form attached hereto as Exhibit A, Exhibit B and Exhibit C and in a form approved by the Town Attorney, and authorizes the Town Manager to execute the Easements on behalf of the Town. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Vail Town Council held this 4th day of November, 2025. ________________________________ Travis Coggin, Mayor ATTEST: _________________________________ Stephanie Kauffman, Town Clerk 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX TEMPORARY CONSTRUCTION EASEMENT AGREEMENT THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (the "Agreement") is made this _____day of ___________________, 2025 (the "Effective Date") by and between the Town of Vail, a Colorado home rule municipal corporation with an address of 75 South Frontage Road, Vail, CO 81657 (the "Town"), and the Eagle River Water & Sanitation District, a quasi-municipal corporation of the State of Colorado with an address of 846 Forest Road, Vail, CO 81657 ("Grantee") (each a "Party" and collectively the "Parties"). WHEREAS, the Town owns the real property more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (the "Easement Property"); WHEREAS, the Town desires to grant Grantee a temporary construction easement (the "Easement") on the Easement Property for the purpose of construction and maintenance of water line facilities (the "Facilities"), as described and depicted in Exhibit B, attached hereto and incorporated herein by this reference; and WHEREAS, the Easement shall revert to the Town after the construction has been completed. NOW THEREFORE, for and in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: I. GRANT OF EASEMENT The Town hereby grants and conveys to Grantee the Easement, in, under, over, above and across the Easement Property in order to undertake all work necessary for the construction of the water line facilities and related work (the "Improvements"). II. GRANTEE'S RIGHTS Grantee and its employees, agents, contractors, representatives, successors and assigns shall have and exercise the right of ingress and egress in, to, through, over, under, above and across the Easement Property for access to perform construction, reconstruction, operation, installation, use, maintenance, repair, replacement, upkeep, monitoring and removal of the Facilities. III. NON-EXCLUSIVE USE The Easement is temporary and non-exclusive in nature. Grantee and its employees, licensees, invitees, agents, contractors, sub-contractors, and work personnel may use the Easement for all purposes consistent with completing the Improvements, until the Easement is terminated as provided below. 2 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX IV. DURATION OF THE EASEMENT The Easement shall automatically terminate on the date that is the earlier to occur of: (i) one year following the completion of the Improvements; or (ii) September 30, 2026. Promptly following the termination of the Easement consistent with the foregoing, if requested by the Town, Grantee shall execute and deliver to the Town a written termination of this Easement in a form reasonably acceptable to the Town, to be filed of record in the real property records of Eagle County, Colorado. Following the expiration date, if the surface of the Easement area is not restored to the Town's reasonable satisfaction, the Town shall give notice to Grantee to complete restoration within 90 days from notice being received by Grantee from the Town, or within a mutually agreed upon timeframe. If the restoration work is not completed within 90 days, or such mutually agreed upon timeframe, the Town may complete the restoration work and charge the reasonable costs incurred by the Town in completing the work to Grantee. Grantee shall pay the Town for such costs within 30 days of receipt of an invoice. V. MAINTENANCE Not Applicable. VI. RELOCATION Not Applicable. VII. RETAINED RIGHTS The Town shall have all rights to the Easement Property not expressly granted hereby, including the construction of structures over the Easement Property. VIII. INSURANCE A. For the term of this Agreement Grantee agrees to procure and maintain, at its own cost, a policy or policies of insurance as required by this Agreement. At a minimum, Grantee shall procure and maintain, and shall cause any subcontractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance as required by law; and 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. 3 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX B. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees, or its contractors shall be excess and not contributory insurance to that provided by Grantee. Grantee shall be solely responsible for any deductible losses under any policy. C. Upon request Grantee shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. IX. INDEMNIFICATION Notwithstanding any provision to the contrary in this Agreement, except for claims made against insurance required by Article IX above, Grantee does not agree to indemnify, defend or hold harmless the Town. Grantee and the Town are relying on and do not waive or intend to waive by any provision of this Agreement the rights, immunities, defenses, and protections provided by the Colorado Governmental Immunity Act, as further set forth in Section X.I. below. X. MISCELLANEOUS A. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligation of this Agreement. C. Integration. This Agreement constitutes the entire agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third-party beneficiaries to this Agreement. E. Notice. Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented or sent pre-paid, first-class U.S. Mail to the Party at the address set forth on the first page of this Agreement. F. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification. This Agreement may only be modified upon written agreement of the Parties. 4 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX H. Assignment. Neither this Agreement nor any of the rights or obligations of the Parties shall be assigned by either Party without the written consent of the other. I. Governmental Immunity. The Town and Grantee, and their respective officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10- 101, et seq., as amended, or otherwise available to the Town, Grantee and their respective officers, attorneys or employees. J. No Merger. It is the express intent of the Parties that the doctrine of merger shall not apply to this Agreement, and there will be no merger of estate between the Easement and the Easement Property. K. Rights and Remedies. The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. L. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town or Grantee not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. M. Force Majeure. No Party shall be in breach of this Agreement if such Party's failure to perform any of the duties under this Agreement is due to Force Majeure, which shall be defined as the inability to undertake or perform any of the duties under this Agreement due to acts of God, floods, fires, sabotage, terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government or pandemics. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. 5 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX TOWN OF VAIL, COLORADO ______________________________ Travis Coggin, Mayor ATTEST: ______________________________ Stephanie Kauffman, Town Clerk GRANTEE EAGLE RIVER WATER AND SANITATION DISTRICT quasi-municipal corporation of the State of Colorado By: ______________________________ STATE OF COLORADO ) ) ss. COUNTY OF ________________) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of ___________, 2025, by ______________________________. My commission expires: (SEAL) ______________________________ Notary Public 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX EXHIBIT A (Temporary Construction Easement) [SEE ATTACHED] 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX EXHIBIT B (Depiction of Work) [SEE ATTACHED] 10/17/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\POTATO PATCH TCE-A093025.DOCX TEMPORARY CONSTRUCTION EASEMENT THIS TEMPORARY CONSTRUCTION EASEMENT (the "Easement") is made this _____ day of ___________________, 2025 (the "Effective Date") by and between the Town of Vail, a Colorado home rule municipal corporation with an address of 75 South Frontage Road, Vail, CO 81657 (the "Town"), and the Eagle River Water & Sanitation District, a quasi-municipal corporation of the State of Colorado with an address of 846 Forest Road, Vail, CO 81657 ("Grantee") (each a "Party" and collectively the "Parties"). WHEREAS, the Town owns the real property more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (the "Easement Property"); WHEREAS, the Town desires to grant Grantee a temporary construction easement on the Easement Property for the purpose of construction and maintenance of water line facilities (the "Facilities"), as described and depicted in Exhibit B, attached hereto and incorporated herein by this reference; and WHEREAS, the Easement shall revert to the Town after the construction has been completed. NOW THEREFORE, for and in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: I. GRANT OF EASEMENT A. The Town hereby grants and conveys to Grantee a temporary easement in, under, over, above and across the Easement Property in order to undertake all work necessary for the construction of the water line facilities and related work (the "Improvements"). B. Grantee and its employees, agents, contractors, representatives, successors and assigns shall have and exercise the right of ingress and egress in, to, through, over, under, above and across the Easement Property for access to perform construction, reconstruction, operation, installation, use, maintenance, repair, replacement, upkeep, monitoring and removal of the Facilities. C. The Easement is temporary and non-exclusive in nature. Grantee and its employees, licensees, invitees, agents, contractors, sub-contractors, and work personnel may use the Easement for all purposes consistent with completing the Improvements, until the Easement is terminated as provided below. D. The Town shall have all rights to the Easement Property not expressly granted hereby, including the construction of structures over the Easement Property. 2 10/17/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\POTATO PATCH TCE-A093025.DOCX II. TERM The Easement shall automatically terminate one year following the completion of the Improvements; or September 30, 2026, whichever is earlier. Following termination, if the surface of the Easement area is not restored to the Town's reasonable satisfaction, the Town shall give notice to Grantee to complete restoration within 90 days from notice from the Town, or within a mutually agreed upon timeframe. If the restoration work is not completed within 90 days, the Town may complete the restoration work and charge Grantee for the reasonable costs incurred by the Town in completing the work. Grantee shall pay the Town for such costs within 30 days of receipt of an invoice. III. INSURANCE A. For the term of this Easement, Grantee agrees to procure and maintain, at its own cost, the following insurance coverages, with forms and insurers acceptable to the Town: 1. Worker's Compensation insurance as required by law; and 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. B. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees, or its contractors shall be excess and not contributory insurance to that provided by Grantee. Grantee shall be solely responsible for any deductible losses under any policy. C. Upon request, Grantee shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Easement. IV. HOLD HARMLESS Grantee agrees to hold harmless the Town and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns from and against all claims, liability, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal 3 10/17/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\POTATO PATCH TCE-A093025.DOCX injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Agreement and if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, negligence, or other fault of Grantee, any subcontractor of Grantee, or any officer, employee, representative, or agent of Grantee, or which arise out of a worker's compensation claim of any employee of Grantee or of any employee of any subcontractor of Grantee. V. MISCELLANEOUS A. Governing Law and Venue. This Easement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Easement by the Town shall not constitute a waiver of any of the other terms or obligation of this Easement. C. Integration. This Easement constitutes the entire agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third-party beneficiaries to this Easement. E. Notice. Any notice under this Easement shall be in writing, and shall be deemed sufficient when directly presented or sent pre-paid, first-class U.S. Mail to the Party at the address set forth on the first page of this Easement. F. Severability. If any provision of this Easement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification. This Easement may only be modified upon written agreement of the Parties. H. Assignment. Neither this Easement nor any of the rights or obligations of the Parties shall be assigned by either Party without the written consent of the other. I. Governmental Immunity. The Town and Grantee, and their respective officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Easement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10- 101, et seq., as amended, or otherwise available to the Town, Grantee and their respective officers, attorneys or employees. J. No Merger. It is the express intent of the Parties that the doctrine of merger shall not apply to this Easement, and there will be no merger of estate with the Easement Property. 4 10/17/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\POTATO PATCH TCE-A093025.DOCX K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town or Grantee not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. L. Force Majeure. No Party shall be in breach of this Easement if such Party's failure to perform any of the duties under this Easement is due to Force Majeure, which shall be defined as the inability to undertake or perform any of the duties under this Easement due to acts of God, floods, fires, sabotage, terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government or pandemics. IN WITNESS WHEREOF, the Parties have executed this Easement as of the Effective Date. TOWN OF VAIL, COLORADO ______________________________ Russell Forrest, Town Manager ATTEST: ______________________________ Stephanie Kauffman, Town Clerk EAGLE RIVER WATER AND SANITATION DISTRICT By: ______________________________ STATE OF COLORADO ) ) ss. COUNTY OF ________________) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of ___________, 2025, by ______________________________. My commission expires: (SEAL) ______________________________ Notary Public 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX EXHIBIT A (Temporary Construction Easement) [SEE ATTACHED] 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX EXHIBIT B (Depiction of Work) [SEE ATTACHED] 10/17/2025 HTTPS://ERWSD-MY.SHAREPOINT.COM/PERSONAL/DDUERR_ERWSD_ORG/DOCUMENTS/PROJECTS/VAIL TANK 4 REHAB/EASEMENTS/TOWN OF VAIL EASEMENTS/DRAIN PERMANENT EASEMENT/POTATO PATCH UTILITY EASEMENT- A093025_FOR ERWSD SIGNATURES.DOCX UTILITY EASEMENT AGREEMENT THIS UTILITY EASEMENT AGREEMENT (the "Agreement") is dated this ______ day of ____________________, 2025 (the "Effective Date"), by and between the Town of Vail, a Colorado home rule municipal corporation with an address of 75 South Frontage Road, Vail, CO 81657, (the "Town"), and the Eagle River Water & Sanitation District, a quasi-municipal corporation of the State of Colorado with an address of 846 Forest Road, Vail, CO 81657 ("Grantee") (each a "Party" and collectively the "Parties"). WHEREAS, the Town owns the real property more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (the "Easement Property"); WHEREAS, Grantee desires to acquire an easement for the construction, installation, removal, replacement, maintenance, operation and repair of water line facilities in the Easement Property, as depicted in Exhibit B, attached hereto and incorporated herein by this reference (collectively the "Facilities"); and WHEREAS, for this purpose, the Town is willing to convey this permanent easement to Grantee, which allows Grantee to install, operate, use, repair and maintain the Facilities in the Easement Property. NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein contained, the Town and Grantee mutually agree as follows: I. GRANT OF EASEMENT A. The Town hereby grants to Grantee and its authorized successors and assigns, lessees, licensees and agents, a permanent, perpetual, non-exclusive easement (the "Easement") to enter, re-enter, occupy and use the Easement Property to construct, reconstruct, use, operate, maintain, repair, patrol, replace, enlarge and remove the Facilities. B. Grantee acknowledges that other utilities and facilities may be installed in the Easement Property if such utilities do not interfere with Grantee's rights as herein granted, or Grantee's use of the Easement and Easement Property. C. Grantee shall be solely responsible for maintaining the Facilities, and the Facilities shall remain Grantee's property. D. Within 60 days of receipt of written notice from the Town, Grantee shall relocate the Facilities within the Easement Property at Grantee's sole cost and expense. E. The Town shall have all rights to the Easement Property that are not incompatible with the rights granted to Grantee herein. 2 10/17/2025 HTTPS://ERWSD-MY.SHAREPOINT.COM/PERSONAL/DDUERR_ERWSD_ORG/DOCUMENTS/PROJECTS/VAIL TANK 4 REHAB/EASEMENTS/TOWN OF VAIL EASEMENTS/DRAIN PERMANENT EASEMENT/POTATO PATCH UTILITY EASEMENT- A093025_FOR ERWSD SIGNATURES.DOCX II. INSURANCE A. Grantee agrees to procure and maintain, at its own cost, a policy or policies of insurance as required by this Agreement. At a minimum, Grantee shall procure and maintain, and shall cause any subcontractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance as required by law; and 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. B. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees, or its contractors shall be excess and not contributory insurance to that provided by Grantee. Grantee shall be solely responsible for any deductible losses under any policy. C. Upon request Grantee shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. III. HOLD HARMLESS Grantee agrees to hold harmless the Town and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns from and against all claims, liability, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Agreement and if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, negligence, or other fault of Grantee, any subcontractor of Grantee, or any officer, employee, representative, or agent of Grantee, or which arise out of a worker's 3 10/17/2025 HTTPS://ERWSD-MY.SHAREPOINT.COM/PERSONAL/DDUERR_ERWSD_ORG/DOCUMENTS/PROJECTS/VAIL TANK 4 REHAB/EASEMENTS/TOWN OF VAIL EASEMENTS/DRAIN PERMANENT EASEMENT/POTATO PATCH UTILITY EASEMENT- A093025_FOR ERWSD SIGNATURES.DOCX compensation claim of any employee of Grantee or of any employee of any subcontractor of Grantee. IV. MISCELLANEOUS A. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligation of this Agreement. C. Integration. This Agreement constitutes the entire agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third-party beneficiaries to this Agreement. E. Notice. Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented or sent pre-paid, first-class U.S. Mail to the Party at the address set forth on the first page of this Agreement. F. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification. This Agreement may only be modified upon written agreement of the Parties. H. Assignment. Neither this Agreement nor any of the rights or obligations of the Parties shall be assigned by either Party without the written consent of the other. I. Governmental Immunity. The Town and Grantee, and their respective officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10- 101, et seq., as amended, or otherwise available to the Town, Grantee and their respective officers, attorneys or employees. J. No Merger. It is the express intent of the Parties that the doctrine of merger shall not apply to this Agreement, and there will be no merger of estate between the Easement and the Easement Property. K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town or Grantee not performed during the current fiscal year is subject to annual appropriation, shall extend only to 4 10/17/2025 HTTPS://ERWSD-MY.SHAREPOINT.COM/PERSONAL/DDUERR_ERWSD_ORG/DOCUMENTS/PROJECTS/VAIL TANK 4 REHAB/EASEMENTS/TOWN OF VAIL EASEMENTS/DRAIN PERMANENT EASEMENT/POTATO PATCH UTILITY EASEMENT- A093025_FOR ERWSD SIGNATURES.DOCX monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. L. Force Majeure. No Party shall be in breach of this Agreement if such Party's failure to perform any of the duties under this Agreement is due to Force Majeure, which shall be defined as the inability to undertake or perform any of the duties under this Agreement due to acts of God, floods, fires, sabotage, terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government or pandemics. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. TOWN OF VAIL, COLORADO ______________________________ Travis Coggin, Mayor ATTEST: ______________________________ Stephanie Kauffman, Town Clerk EAGLE RIVER WATER AND SANITATION DISTRICT By: ______________________________ STATE OF COLORADO ) ) ss. COUNTY OF ________________) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of ___________, 2025, by ______________. My commission expires: (SEAL) ______________________________ Notary Public 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX EXHIBIT A (Temporary Construction Easement) [SEE ATTACHED] 8/27/2025 C:\USERS\DDUERR\APPDATA\LOCAL\MICROSOFT\WINDOWS\INETCACHE\CONTENT.OUTLOOK\TNRVJQW3\765 POTATO PATCH TCE-A081125_TEMPORARY CONSTRUCTION EASEMENT.DOCX EXHIBIT B (Depiction of Work) [SEE ATTACHED]