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HomeMy WebLinkAboutDRB140538_Snowberry Easement Exchange-(unsigned copy)_1415662200.pdf EASEMENT EXCHANGE AGREEMENT THIS EASEMENT EXCHANGE AGREEMENT (the "Agreement") is made and entered into this ___ day of October, 2014, by and between Mountain CI Holdings LTD, a _______________, with an address of 1480 Sandhills Drive, Unit 4, Ancaster, Ontario, Canada L9G 4V5 ("Mountain CI") and the Town of Vail, a Colorado home rule municipality with an address of 75 S. Frontage Road, Vail, Colorado 81657 (the "Town") (each individually a "Party" and collectively the "Parties"). WHEREAS, Mountain CI owns certain real property more particularly described as Lot 10, Block 9, Vail Intermountain Development Subdivision Town of Vail, Eagle County, Colorado, and more commonly referred to as 2755 Snowberry Drive, Vail, Colorado 81657 (the "Property"); WHEREAS, A Roadway Structure, Parking, Public & Private Utility easement currently exists across a portion of the Property as shown in Exhibit A attached hereto and incorporated herein by this reference ("Easement A") for purposes of constructing the right-of-way commonly referred to as Snowberry Drive; WHEREAS, during the construction of Snowberry Drive, a portion of the road was constructed through the Property outside of the platted right-of-way and Easement A; WHEREAS, the Parties now desire to conduct an Easement Exchange whereby the Town agrees to transfer a portion of Easement A as more particularly described in Exhibit A back to Mountain CI, and Mountain CI agrees to grant the Town a new non-exclusive perpetual easement upon, over, under, across and through that portion of the Property more particularly described in Exhibit B, attached hereto and incorporated herein by this reference ("Easement B"); and WHEREAS, Mountain CI and the Town wish to exchange the respective Easements under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the above premises, the mutual promises and covenants below, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: l. Exchange Terms. A. Mountain CI and the Town acknowledge that Easement A and Easement B are of like kind and equal value. B. The Town hereby grants and conveys to Mountain CI, its successors, assigns, lessees, licensees and agents, all of the Town's rights and interests to Easement A. C. Mountain CI hereby grants and conveys to the Town, its successors, assigns, lessees, licensees and agents, a non-exclusive perpetual easement upon, over, under, across and through Easement B for the purpose of the Town's construction, reconstruction, operation, maintenance of a roadway and supporting structure, parking, and for the use of public and 2 private utilities as is typical of a right-of-way. The Town shall have the right of ingress and egress over and across the adjacent lands of Mountain CI as may be necessary to access Easement B. 2. Covenants of the Town. The Town hereby represents, covenants and warrants in favor of Mountain CI and its successors and assigns as follows: A. The Town shall protect Easement B and the adjacent lands of Mountain CI over which the Town has rights of ingress and egress from damage caused in whole or in part by acts or omissions of the Town, its employees, agents, contractors, subcontractors, assigns, lessees, licensees and agents. The Town shall clean, cure and correct any such damage to any elements of Easement B or the above referenced adjacent lands, including but not limited to, all pavement, curbs, gutters, walks, streets, other utilities, structures and other improvements situate therein or thereon, and shall keep all of such property reasonably clean and clear of equipment, building materials, dirt, debris and similar materials. If the Town fails to clean, cure or correct such damage within fourteen (14) days after notice thereof from Mountain CI, then Mountain CI may do so, at the Town's expense. B. In all activities undertaken on property belonging to Mountain CI, the Town and its employees, agents, contractors, subcontractors, successors, assigns, lessees and licensees shall conduct and construct all work in a good and workmanlike manner; and C. The Town shall not cause or permit to be caused by any of its employees, agents, contractors, subcontractors, successors, assigns, lessees or licensees, any hazardous substances, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980 ("CERCLA"), pollutants, or contaminants, as defined by CERCLA or hazardous waste as defined by the Resource Conservation and Recovery Act ("RCRA"), including but not limited to asbestos, and/or urea formaldehyde, or any pollutants or toxic pollutants as defined by the Clean Water Act, and any amendments thereto, to be dumped, spilled, released, permanently stored, or deposited on, over, or beneath Easement B. Any hazardous, toxic or flammable substances use by the Town, its employees, agents, contractors, subcontractors, successors, assigns, lessees or licensees in the construction, reconstruction, operation, maintenance or removal of the right-of- way shall be utilized in a lawful manner and in compliance with all federal, state and local requirements relating to protection of health or the environment. 3. Mountain CI’s Covenants. A. Mountain CI covenants and agrees that it shall not plant within or allow to grow into Easement B any trees, bushes or other planted material that would interfere with the Town’s use of Easement B, and that it shall not construct any buildings or other improvements within, over or upon Easement B without the prior written permission of the Town. B. Mountain CI hereby warrants title to the easement herein granted and conveyed to the Town. Mountain CI warrants that the easement is free and clear of all liens and encumbrances. Mountain CI agrees to protect and defend the title of the Town from and against all persons whomsoever. 3 C. Mountain CI warrants and guarantees that it has the power and authority to grant Easement B. 4. Indemnification of The Town by Mountain CI. Mountain CI agrees, and hereby does, to the extent permitted by law, indemnify and hold harmless the Town, any directors, officers employees and agents of the Town, and any successors or assigns of the Town, from any costs, expenses, damages, claims or demands incurred or asserted against the Town as a result of or arising out of Mountain CI's warranties or covenants set forth herein. 5. Miscellaneous. A. Runs with the Land. Except as otherwise expressly provided for herein, all provisions herein contained, including the benefits, burdens and covenants, are intended to run with the land and shall be binding upon and inure to the benefit of the respective, parties, their heirs, successors and assigns. B. Effect. This Agreement shall be of no force and effect until the same is duly and validly executed by each of the parties hereto. C. Warranty. Each party warrants that it has the full right and legal authority to make the grant of this Agreement. D. Governing Law and Venue. This Agreement and the rights and obligations of the Parties hereunder shall be governed by the laws of the State of Colorado, and any legal action brought under or as a result of this Agreement shall be brought in Eagle County, Colorado. E. 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. F. Third Parties. There are no intended third-party beneficiaries to this Agreement. G. Modification. This Agreement may only be modified upon written agreement of the parties. H. 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. I. Governmental Immunity. The Town, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, 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 and its officers or employees. 4 J. Integration. The foregoing constitutes the entire agreement between the parties regarding the easements and no additional or different oral representation, promise or agreement shall be binding on any party with respect to the easements. K. No Joint Venture. Notwithstanding any provision hereof, the Town shall never be a joint venture in any private entity or activity that participates in this Agreement, and the Town shall never be liable or responsible for any debt or obligation of any party to this Agreement. L. No Debt. Pursuant to Article X, § 20 of the Colorado Constitution, the Town's financial obligations under this Agreement are specifically contingent upon annual appropriation of funds sufficient to perform such obligations. This Agreement shall never constitute a debt or obligation of the Town within any statutory or constitutional provision. IN WITNESS WHEREOF, this Agreement is executed by Mountain CI and the Town as of the date first above written. TOWN OF VAIL, COLORADO ___________________________________ Andy Daly, Mayor ATTEST: ________________________________ Patty McKenny, Town Clerk APPROVED AS TO FORM: ________________________________ J. Matthew Mire, Town Attorney MOUNTAIN CI HOLDINGS, LTD ____________________________________ STATE OF COLORADO ) )ss. COUNTY OF______________ ) The above and foregoing document was acknowledged before me this ___ day of ___________, 2014, by ___________________ as ____________________________. WITNESS my hand and official seal. ____________________________________ Notary Public My Commission expires: