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HomeMy WebLinkAbout 19-72 Temp Construction Easement St Vrain Metro Dist Barefoot Lakes-ExecuteRESOLUTION 19-72 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, AUTHORIZING A TEMPORARY CONSTRUCTION EASEMENT WITH BAREFOOT LLC PERTAINING TO A PIER AND DOCK TO BE INSTALLED UPON LANDS OWNED BY THE TOWN OF FIRESTONE, COLORADO WHEREAS, pursuant to that certain Subdivision Agreement among the Town of Firestone (the "Town"), St. Vrain Lakes Metropolitan District No. 1 (the "District") and Barefoot LLC ("Barefoot"), as well as a Final Development Plan for Peninsula Park, which is Town - owned property, Barefoot plans to construct and install a pier, gangway and dock and related facilities ("Pier and Dock") for the eventual provision of recreational services using the Pier and Dock by the District to the public for property owned by the District, on which are located lakes, which is adjacent to Peninsula Park; and WHEREAS, upon completion of the Pier and Dock, Barefoot desires to dedicate the ownership of the Pier and Dock to the District; and WHEREAS, to construct the desired Pier and Dock would require the use of certain land owned by the Town of Firestone (the "Town"), and would traverse across such land as more fully described and depicted in Exhibit A; and WHEREAS, Barefoot desires to obtain the necessary property interests from the Town that would allow for the construction and installation of the Pier and Dock by Barefoot; and WHEREAS, the Town desires to grant a temporary, non-exclusive construction easement that would allow use of Town property, pursuant to certain terms and conditions as set forth in a Temporary Construction Easement Agreement, attached hereto as Exhibit B. NOW, THEREFORE, BE IT RESOLVED BY THE FIRESTONE FINANCE AUTHORITY OF THE TOWN OF FIRESTONE, COLORADO: Section 1. The Board of Trustees of the Town of Firestone authorizes the grant of a temporary, non-exclusive construction easement to Barefoot LLC to use the property described in Exhibit A for the construction and installation of a pier, gangway and dock, including any related equipment and facilities. Section 2. The Temporary Construction Easement Agreement between the Town of Firestone and Barefoot LLC is approved in substantially the form as attached hereto as Exhibit B, and the Mayor is authorized to execute the agreement on behalf of the Town of Firestone. INTRODUCED, READ AND ADOPTED this 14th day of Au ust, 2019. bbi Sin• -lar, layor ATTEST: Leah Vanarsdall, Town Cleric AS TO FORM: Town Attar7ley Exhibit A TRACT B, BAREFOOT LAKES REGIONAL PARK FILING NO. 1, TOWN OF FIRESTONE, COUNTY OF WELD, STATE OF COLORADO Exhibit B RECREATIONAL EASEMENT AND MAINTENANCE AGREEMENT (Barefoot Lakes Regional Park Pier and Dock) THIS RECREATIONAL EASERNT AND MAINTENANCE AGREEMENT ("Agreement") is made and entered into effective the day of 4(/&0S7' , 2019, by and between the TOWN OF FIRESTONE, COLORADO ("Grantor"), and ST. VRAIN LAKES METROPOLITAN DISTRICT NO. I ("District" or "Grantee"), a quasi -municipal corporation and political subdivision of the State of Colorado. WHEREAS, the Town owns that property known as Peninsula Park, more particularly described as Tract B, Barefoot Lakes Regional Park Filing No. 1 (the "Park") and the District owns adjacent property on which are located lakes and more particularly described as Tract A, Barefoot Lakes Regional Park No. 1 (the "Lake Premises"). Both the Park and the Lake Premises are depicted on Exhibit A, attached hereto; and WHEREAS, the Park is approved for development pursuant to` the Subdivision Agreement among the Town, District and Barefoot LLC ("Barefoot") dated February 12, 2018 and recorded at Reception No. 4375617 in the real estate records of Weld County, Colorado (the "Subdivision Agreement"); and WHEREAS, Barefoot has completed the development of the public improvements irr the Park, as required under the Subdivision Agreement, and was issued a conditional acceptance letter by the Town on February 9, 2019; and WHEREAS, the Final Development Plan for the Parlc also calls for the installation of a pier, gangway and dock as depicted on Exhibit A (the "Pier and Dock") and the Subdivision Agreement requires certain responsibilities of Barefoot (Developer) and the District relating to the construction, maintenance and operation of the Pier and Dock facilities and for the provision of recreation services using the Pier and Dock; and WHEREAS, Barefoot desires to construct and the District desires to own, maintain and operate the Pier and Docic and, upon completion and acceptance, Barefoot would dedicate the ownership of the Pier and Dock to the District; and WHEREAS, the Town desires to grant the District the necessary property rights in the Park to allow for the construction, maintenance and operation of the Pier and Dock as further provided herein and to set forth certain rights and responsibilities with respect to the District's maintenance of the Pier and Dock. NOW, THEREFORE, in consideration of the foregoing, the parties hereto promise, covenant and agree as follows: 1. Grantor's Property. Grantor is the owner of that certain parcel of real property located in the Town of Firestone, Weld County, Colorado, which is legally described as Tract B, Barefoot Lakes Regional Park Filing No. 1 (the "Property"). 2. Grant of Easement. For and in consideration of the covenants and agreements set forth herein, the receipt and adequacy of which Grantor acknowledges, Grantor hereby grants and conveys to the Grantee a permanent, non-exclusive easement (the "Easement") on, over, under and across that portion of the Property depicted and described on Exhibit A, attached hereto and incorporated herein by this reference (the "Easement Area"), subject to the conditions and restrictions set forth below. 3. Purposes and Uses of Easement. Grantee may use the Easement: (a) to access, operate, maintain, replace, reconstruct, inspect and remove at any time and from time to time the Pier and Dock, along with any equipment and facilities associated with the Pier and Dock such as storage racks or sheds or other items relating to the recreational use of the Pier and Dock (these items, together with the Pier and Dock, are collectively referred to herein as, the "Improvements") upon, across, over, through and within the Easement Area for use by the public solely and exclusively for public recreational uses permitted by the Town; and (b) for use by Grantee's agents, contractors and employees as reasonably necessary to operate, manage or maintain the Improvements and to carry out Grantee's obligations under this Agreement. 4. Restrictions on Grant of Easement. Grantee shall not have the right to construct, erect, install, place, locate, use, operate, maintain, or replace any structures, equipment, facilities or improvements upon, across, over, through and within the Easement Area, other than the Improvements permitted under this Agreement. Additionally, Grantee shall not have the right to enlarge, expand, or add to the Pier and Dock or the Improvements without the prior written consent of the Town, which shall not be unreasonably withheld. 5. Access. Additionally, Grantor grants and conveys to Grantee a permanent right of ingress to and egress to and from the Easement Area upon, over, in and across the Property, as described more fully on Exhibit A, attached hereto and made a part of this Agreement (the "Access Area"). Grantee shall only use the existing roads for ingress and egress to the Easement Area. 6. Grantor's R�hts in Easement Area. Grantor reserves all other rights in and to the Easement Area, including the right to use the Easement Area for any purposes whatsoever, which will not impair, endanger, or unreasonably interfere with the Improvements or with Grantee's full use and enjoyment of the rights hereby granted. �. Relocation of Improvements. If, for any reason, the Improvements conflict with, impede, restrict or limit in any manner whatsoever the Town's use of the Easement Area such that the Improvements must be relocated outside of the Easement Area, the Parties shall: (a) Work together to execute any easements or amendments to this Agreement that are necessary for the relocated Improvements, and to release any portions of the Property from the Easement that are no longer needed; and (b) Develop and implement a comprehensive relocation plan. The plans for any relocation will be subject to the Town's prior written approval, and the relocation will be subject to the Town's oversight. 2 Pier and Dock Easement Agreement (TOF redline)-A072919 E Maintenance and Operation of the Improvements. By accepting and using the Easement, Grantee agrees: (a) Grantee will maintain, operate, repair, replace and control the Improvements, including without limitation signage, lighting and landscaping, at Grantee's sole cost, as necessary to keep the Improvements in good and safe condition at all times. Without limiting the meaning of the preceding sentence, Grantee will be responsible for repairing or replacing the surface of the Pier and Dock as necessary, and for keeping all Improvements clear of debris and other obstructions. Grantee will have the right to remove any objects interfering with the use and safe operation of the Improvements. (b) Grantee shall perform summer maintenance of the Improvements, as needed to maintain the Improvements in a safe and usable manner during the non -winter months ("Summer Maintenance"), (c) Summer maintenance will be determined and scheduled by Grantee. (d) The Pier and Dock will be closed to public access in the winter. (e) Grantee will be responsible for enforcing any rules and regulations applicable to the use of the Improvements as adopted by Grantee and in accordance with any applicable ordinances of the Town. (f) Grantee may contract with other public or private entities to provide these services for all or part of each year. 9. Damage and Restoration. Grantee shall be responsible for all damage to the Easement Area, Access Area or the Property, including any installations, structures, utilities or improvements located on, under or within the Property, arising out of or resulting from the Improvements, or its use of the Improvements or Easement granted herein. Upon completing any work or activities in the Easement Area, Grantee, at its sole expense, shall restore the surface of the Easement Area to the conditions that existed immediately prior to the commencement of any of Grantee's activities permitted hereunder. 10. Compliance with Laws. Grantee shall comply at all times with the resolutions, ordinances, rules, and regulations of the Town in connection with Grantee's use of the Easement, the Easement Area, the Access Area, and the Improvements. 11. Abandonment; Termination, Upon Grantee's permanent cessation of its use or operation of the Improvements or its full use and enjoyment of the Easement Area pursuant to the rights granted herein, this Agreement shall automatically terminate. 12. Limitation of Grantor's Liability. Because the Improvements will be used for recreational purposes, as that term is defined by C.R.S. § 33-41-102(5), Grantor is entitled to any and all protections provided under C.R.S. § 3341-103 and other. 3 Piet and Oock Easement Agreement (clean) A062B19 13. Indemnification. To the extent permitted by law and subject to the provisions of Section D below, Grantee shall indemnify, defend and hold harmless the Town and its officers, agents, and employees from and against all liability, claims, damages, losses, and expenses, including but not limited to, attorney fees arising out of, resulting from, or in any way connected with: (i) the existence of the Improvements; (ii) Grantee's use, maintenance, control, or operation of the Improvements; (iii) Grantee's use of the Easement Area; or (iv) the rights and obligations of Grantee hereunder. 14. Loss of Use. Grantee's loss of use of the Improvements arising out of or relating to the relocation of the Improvements shall not entitle Grantee to any compensation from the Town for damages or loss, in any manner whatsoever, and Grantee hereby waives any and all claims which Grantee may or might hereafter have or acquire against the Town for loss or damage arising from the relocation of the Improvements. 15. Insurance. Grantee shall procure and maintain or self -insure, at its own cost, a policy or policies of insurance sufficient to insure against, claims, demands, and other obligations assumed by Grantee pursuant to this Agreement. Grantee shall cause all of its contractors to procure and maintain, the minimum iolicy, the nsurance coverages listed below. In the case of any claims -made p necessary retroactive dates and extended reporting periods shall be procured by Grantee's contractor, as applicable, to maintain such continuous coverage. All insurance will be underwritten by a company licensed or authorized to conduct business in the State of Colorado. Any insurance carried by the Town, its officers, its employees or its contracts shall be excess and non-contributory insurance to that provided by Grantee or its contractors. Prior to the commencement of any activities in the Easement Area by Grantee or its contractors, and annually on or before December 31 of each year this Agreement is in effect, Grantee shall provide, or cause its contractors to provide, a certificate of insurance as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect. Within 30 days' receipt of notice from an insurer of any contractor, Grantee shall provide the Town with written notice of cancellation or modification of any such policies. (a) Workers' Compensation insurance as required by the Labor Code of the State of Colorado and Employers Liability Insurance. Evidence of qualified self -insured status may be substituted. (b) General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000) each occurrence and ONE MILLION DOLLARS ($1,000,000) aggregate. The policy shall include the Town of Firestone, its officers and its employees, as additional insureds, with primary coverage as respects the Town of Firestone, its officers and its employees, and shall contain a severability of interests provision. Coverage shall include independent contractor's protection, premises -operations, products, completed operations and contractual liability with respect to the liability assumed by Licensee hereunder. (c) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than THREE IIiJNDRED AND FIFTY THOUSAND DOLLARS ($350,000) per person in any one occurrence and NINE HUNDRED NINETY THOUSAND DOLLARS ($990,000) for two or more persons in any one occurrence, and auto property damage insurance of at least FIFTY THOUSAND DOLLARS ($50,000) per occurrence, with respect to each of Grantee's owned vehicles assigned to or used in connection 0 Pier and Dock Easement Agreement (clean) A062819 with Grantee's rights or obligations of this Agreement. 16. Binding Effect -Runs With Land. This Agreement shall constitute covenants running with the land and shall extend to and be binding upon the successors and assigns of the respective Parties hereto. 17. Assi nment. Grantee may not assign, in whole or part, the right to use and all obligations associated with the Easement without the prior written consent of the Town. 18. Notices. Any notices or communication required or permitted hereunder shall be given in writing and shall be sent by United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed as follows: Town: Town of Firestone Town Clerk P.O. Box 100 Firestone, CO 80520 District: St. Vrain Lalces Metropolitan District No. 1 6465 Greenwood Place Blvd., #700 Centennial, CO 80111 with a copy to: ite WhBear Anlcele Tanaka &Waldron, P.C. 2154 E. Commons Avenue, Suite 2000 Centennial, CO 80122 or to such other address as hereafter designated in writing by the applicable parties. Notices shall be effective upon mailing. 19. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the Parties hereto relating to the Easement and sets forth the rights, duties and obligations of each to the other as of this date, and this Agreement supersedes all previous and contemporaneous communications, negotiations, representations, or agreements, either verbal or written. Any prior agreements, promises, negotiations or representations not expressly set forth in this Agreement are of no force and effect. This Agreement may not be modified or amended, except by a writing executed by both Parties. 20. Waiver. Waiver by a party of any breach of any tei7n or provision of this Agreement shall not be deemed a waiver of any subsequent breach of the same or any other term or provision thereof. 21. Governing Law; Attoiuey's Fees. This Agreement shall be governed by the laws of the state of Colorado and venue shall be in the Weld County District Court. In the event of any dispute or Pier and Dock Easement Agreement (clean) A062819 litigation arising under the terms of this License, the prevailing party shall be entitled, in addition to other damages or costs, to receive from the other party court costs and reasonable attorney fees. 22. Severability. If any part, term or provision of this Agreement shall be held unenforceable or invalid, such part, term or provision shall be severable and deemed ineffective to the extent of such invalidity or prohibition without invalidating the remainder of this Agreement. 23. Governmental Immunity. The City and its officers, attorneys and employees and the Grantee and its 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- 10401, et seq., as amended, or otherwise available to the parties and their respective officers, attorneys or employees. 24. Authority. Grantor and Grantee each represent to the other that it has the power and authority to execute and deliver this Agreement and to perform its respective obligations under this Agreement. Grantor and Grantee each represent to the other that the person or persons signing for it has been duly authorized by such party to do so. 25. Counterparts. This Agreement maybe executed by the parties in counterparts, each of which shall be deemed to be an original and all of which, when taken together, shall constitute one and the same Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLAND] 6 Pier and Dock Easement Agreement (clean) A062819 IN WITNESS WHEREOF, the parties have entered into this Agreement on the date first above written. T: DISTRICT ST. VRAIN LAKES METROPOLITAN DISTRICT NO, 1 By; Name: Title: ATTEST: MIC•1�d/� • I: • ►I By: TOE �,....,. �F TOWN ` Mayor 7 Pier and Oock Easement Agreement (clean) A062819 r EXHIBIT A AAA - - Am,�.-� / ! �•"---'.per I ... {{ f, mll tu TRACT B y It ` (TOWN PREMISES) .. p ow `If't ! 1, '• t TRACT (LAKE PREMISES) JAZ - TRACT B 1 r ) s f (TOWN PREMISES)•I TRACT A AAA (LAKE PREMISES) r i N SCALE: V = 200' �/ DATE 09:102010 EXHIBIT A PROD. NO. W001_D04 ZE 1d SHEET BAREFOOT LAKES ` REGIONAL PARK FILING NO. 1 Pies and Dock Easement Agreement (clean) A062819