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HomeMy WebLinkAboutPW 2005I TOWN OF VAIL, COLORADO Statement Statement Number: R050001778 Amount: $275,000.00 10/21/200511:52 AM Payment Method: Check Init: LS Notation: ck# 1321 Permit No: PW05-0173 Type: PUBLIC WAY PERMIT Parcel No: 2101-071-0101-6 Site Address: 13 VAIL RD VAIL Location: 13 VAIL ROAD Total Fees: 275,150.00 This Payment: $275,000.00 Total ALL Pmts: 275,150.00 Balance: $0.00 ACCOUNT ITEM LIST: Account Code Description Current Pmts AD DEP-DEP09 DEP-STREET CUTS 275,000.00 TOWN OF VAIL, COLORADO ***********************+*********************Statement Statement Number: R050001777 Amount: $150.00 10/21/200511:49 AM Payment Method: Check Init: LS Notation: ck# 5567 Permit No: PW05-0173 Parcel No: 2101-071-0101-6 Type. PUBLIC WAY PERMIT Site Address: 13 VAIL RD VAIL Location: 13 VAIL ROAD This Payment: $150.00 Total Fees: 275,150.00 Total ALL Pmts: $150.00 ***************************************************************B** a 000*00 ACCOUNT ITEM LIST: Account Code Description Current Pmts ST 00100003112100 PUBLIC WAY FEES - 50.00 00 ORDINANCE NO. 20 SERIES OF 2005 AN ORDINANCE REPEALING AND RE-ENACTING ORDINANCE NO. 9, SERIES OF 2003, PROVIDING FOR THE MAJOR AMENDMENT OF SPECIAL DEVELOPMENT DISTRICT NO. 36, FOUR SEASONS RESORT, AND AMENDING THE APPROVED DEVELOPMENT PLAN FOR SPECIAL DEVELOPMENT DISTRICT NO. 36 IN ACCORDANCE WITH CHAPTER 12-9A, VAIL TOWN CODE; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, Chapter 12-9A of the Town of Vail Zoning Regulations permits the adoption of Special Development Districts; and WHEREAS, Vail Development, LLC, has submitted an application for a major amendment to Special Development District No. 36, Four Seasons Resort; and WHEREAS, in accordance with the provisions outlined in the Zoning Regulations, the Planning & Environmental Commission held public hearings on the application; and WHEREAS, the Planning & Environmental Commission has reviewed the prescribed criteria for the amendment of special development districts and has submitted its recommendation of approval to the Vail Town Council; and WHEREAS, the Vail Town Council finds that the proposed amendment to Special Development District No. 36, Four Seasons Resort, complies with the nine design criteria outlined in Section 12-9A-8 of the Vail Town Code and that the applicant has demonstrated that any adverse effects of the requested deviations from the development standards of the underlying zoning are outweighed by the public benefits provided; and WHEREAS, the approval of the major amendment to Special Development District No. 36, Four Seasons Resort, and the development standards in regard thereto shall not establish precedence or entitlements elsewhere within the Town of Vail; and WHEREAS, all notices as required by the Town of Vail Municipal Code have been sent to the appropriate parties; and WHEREAS, the Vail Town Council considers it in the best interest of the public health, safety, and welfare to adopt the proposed Approved Development Plan for Special Development District No. 36, Four Seasons Resort. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Purpose of the Ordinance The purpose of Ordinance No. 20, Series of 2005, is to adopt an Approved Development Plan for Special Development District No. 36, Four Seasons Resort, and to prescribe appropriate development standards for Special Development District No. 36, in accordance with the provisions of Chapter 12-9A, Vail Town Code. The "underlying" zone district for Special Development District No. 36 shall remain Public Accommodation zone district. Section 2. Establishment Procedures Fulfilled, Planning Commission Report The procedural requirements described in Chapter 12-9A of the Vail Town Code have been fulfilled and the Vail Town Council has received the recommendation of approval from the Planning & Environmental Commission for the major amendment to Special Development District No. 36, Four Seasons Resort. Requests for the amendment of a special development district follow the procedures outlined in Chapter 12-9A of the Vail Town Code. Section 3. Special Development District No. 36 The Special Development District is hereby amended to assure comprehensive development and use of the area in a manner that would be harmonious with the general character of the Town, provide adequate open space and recreation amenities, and promote the goals, objectives and policies of the Town of Vail Comprehensive Plan. Special Development District No. 36, Four Seasons Resort, is regarded as being complementary to the Town of Vail by the Vail Town Council and the Planning & Environmental Commission, and has been amended because there are significant aspects of the Special Development District that cannot be satisfied through the imposition of the standard Public Accommodation zone district requirements. Section 4. Development Standards - Special Development District No. 36, Four Seasons Resort Development Plan - The Approved Development Plan for Special Development District No. 36, Four Seasons Resort, shall include the following plans and materials prepared by Zehren and Associates, Inc., and Hill Glazier Architects, and Alpine Engineering, dated August 8, 2005, and stamped approved by the Town of Vail, dated August 8, 2005: a. C1. Existing Conditions Plan b. C3. Water and Sanitary Sewer Plan C. C4. Grading and Drainage Plan d. C5. Erosion and Sediment Control Plan e. C6. Shallow Utility Plan f. A-2.0.1 Level 1 Plan (132') g. A-2.0.2 Level 2 Plan (140',142') h. A-2.0.3 Level 3 Plan (152') i. A-2.0.4 Level 4 Plan (162') j. A-2.0.5 Level 5 Plan (172') k. A-2.0.6 Level 6 Plan (182') 1. A-2.0.7 Level 7 Plan (192') M. A-2.0.8 Level 8 Plan (202') n. A-2.0.9 Level 9 Plan (212') o. A-2.0.10 Level 10 Plan (222') P. A-2.0.11 Roof Plan q. A-5.0.1 Elevations r. A-5.0.2 Elevations S. A-5.0.3 Elevations t. A-8.0.1 Site Plan North U. A-8.0.2 Site Plan South V. A-9.0.1 Landscape Plan North W. A-9.0.2 Landscape Plan South X. A-10.0.1 Building Height Calculations -Absolute Height/interpolated Contours Y. A-10.0.2 Building Height Calculations -Maximum Height/Interpolated Contours Z. A-10.0.3 Building Height Calculations at Proposed Grades aa. A-11.0.1 Existing Circulation bb. A-11.0.2 Proposed Circulations cc. A-12.0.1 Off-site Improvements Plan dd. A-13.0.1 Landscape Area ee. A-14.0.1 Hardscape Area ff. A-15.0.1 Above Ground Site Coverage gg. A-15.0.2 Site Coverage Below Grade hh. A-16.0.1 Streetscape Elevations Permitted Uses-- The permitted uses in Special Development District No. 36 shall be as set forth in the development plans referenced in Section 4 of this ordinance. Conditional Uses-- The conditional uses for Special Development District No. 36, Four Seasons Resort, shall be set forth in Section 12-7A-3 of the Town of Vail Zoning Regulations. All conditional uses shall be reviewed per the procedures as outlined in Chapter 12-16 of the Town of Vail Zoning Regulations. Density-- Units per Acre - Dwelling Units, Accommodation Units, Fractional Fee Club Units and Employee Housing Units The number of units permitted in Special Development District No. 36, Four Seasons Resort, shall not exceed the following: Dwelling Units - 416 Accommodation Units - 448-122 Fractional Fee Club Units - 22- 19 Type III Employee Housing Units - 34 28 Density-- Floor Area The gross residential floor area (GRFA), common area and commercial square footage permitted for Special Development District No. 36, Four Seasons Resort, shall be as set forth in the Approved Development Plan referenced in Section 4 of this ordinance. Specifically: GRFA - 177,609 square feet Retail - 2,386 square feet Restaurant/Lounge - 5,946 square feet (seating capacity) Conference Facilities - 11,139 square feet Health Club and Spa - 18,577 square feet Setbacks-- Required setbacks for Special Development District No. 36, Four Seasons Resort, shall be as set forth in the Approved Development Plan referenced in Section 4 of this ordinance. Height-- The maximum building height for Special Development District No. 36, Four Seasons Resort, shall be as set forth in the Approved Development Plan referenced in Section 4 of this ordinance (89 feet maximum). Site Coverage-- The maximum site coverage allowed for Special Development District No. 36, Four Seasons Resort, shall be as set forth in the Approved Development Plan referenced in Section 4 of this ordinance (70,150 square feet above grade or 59%; and 85,091 square feet below grade or 72%). Landscaping— The minimum landscape area requirement for Special Development District No. 36, Four Seasons Resort, shall be as set forth in the Approved Development Plan referenced in Section 4 of this ordinance (35,268 square feet or 30%). Parking and Loading - The required number of off-street parking spaces and loading/delivery berths for Special Development District No. 36, Four Seasons Resort, shall be provided as set forth in the Approved Development Plan referenced in Section 4 of this ordinance (211 spaces required, 215 spaces provided). In no instance shall Vail Road, West Meadow Drive or the South Frontage Road be used for loading/delivery or guest drop-off/pick-up without the prior written approval of the Town of Vail. The required parking spaces shall not be individually sold, transferred, leased, conveyed, rented or restricted to any person other than a condominium owner, fractional fee owner, tenant, occupant or other user of the building, except that six (6) of the required spaces may be utilized by the Holiday House Condominium Association, d/b/a Nine Vail Road Condominiums for parking pursuant to the terms of a recorded Easement Agreement. The foregoing language shall not prohibit the temporary use of the parking spaces for events or uses outside of the building, subject to the approval of the Town of Vail nor shall it limit the number of spaces available for sale or lease to condominium and/or fractional fee owners. Section 5. Approval Agreements for Special Development District No. 36, Four Seasons Resort The approval of Special Development District No. 36, Four Seasons Resort shall be conditioned upon the developer's demonstrated compliance with the following approval agreements: That the developer shall provide deed-restricted housing that complies with the Town of Vail Employee Housing requirements (Chapter 12-13) for a minimum of 56 employees on the Four Seasons Resort site, and that said deed-restricted employee housing shall be made available for occupancy, and that the deed restrictions shall be recorded with the Eagle County Clerk & Recorder, prior to issuance of a Temporary Certificate of Occupancy for the Four Seasons Resort. 2. That the Memorandum of Understanding as provided in Exhibit A, shall be adopted with the second reading of Ordinance No. 20, Series of 2005. This fulfills approval agreement number 2 of first reading of Ordinance No. 20, Series of 2005. 3. That the developer shall record a drainage easement for Spraddle Creek. The easement shall be prepared by the developer and submitted for review and approval by the Town Attorney. The easement shall be recorded with the Eagle County Clerk & Recorder's Office prior to the issuance of a Temporary Certificate of Occupancy for the Four Seasons Resort. 4. That the developer shall submit a final exterior building materials list, a typical wall section and complete color renderings for review and approval of the Design Review Board, prior to submittal of an application for a building permit. 5. That the developer shall submit a comprehensive sign program proposal for the Four Seasons Resort for review and approval by the Design Review Board, prior to the issuance of a Temporary Certificate of Occupancy for the Four Seasons Resort. 6. That the developer shall submit a rooftop mechanical equipment plan for review and approval by the Design Review Board prior to the issuance of a building permit. All rooftop mechanical equipment shall be incorporated into the overall design of the hotel and enclosed and visually screened from public view. 7. That the developer shall post a bond to provide financial security for the 150% of the total cost of the required off-site public improvements. The bond shall be in place with the Town prior to the issuance of a building permit. 8. That the developer shall comply with all fire department staging and access requirements pursuant to Title 14, Development Standards, Vail Town Code. This will be demonstrated on a set of revised plans for Town review and approval prior to building permit submittal. 9. That the required Type III deed-restricted employee housing units shall not be eligible for resale and that the units be owned and operated by the hotel and that said ownership shall transfer with the deed to the hotel property. 10. That the developer shall coordinate the relocation of the existing electric transformers on the property with local utility providers. The revised location of the transformers shall be part of the final landscape plan to be submitted for review and approval by the Design Review Board. 11. That the developer shall submit a written letter of approval from Nine Vail Road Condominium Association, the Scorpio Condominium Association, and the Alphorn Condominium Association granting access to allow for the construction of sidewalk, drainage, Spraddle Creek relocation, and landscaping improvements, respectively, prior to the issuance of a building permit. 12. That the developer provides a 6 ft. to 8 ft. heated paver pedestrian walkway from the Frontage Road bus stop adjacent to the West Star Bank then continuing east to Vail Road and then south to the 9 Vail Road property line. All work related to providing these improvements including lighting, retaining, utility relocation, curb and gutter, drainage and landscaping shall be included. A plan shall be submitted for review and approval by the Town and the Design Review Board prior to submittal of a building permit. 13. That the developer shall provide a heated pedestrian walk connection from the Frontage Road to West Meadow Drive. The developer shall record a pedestrian easement for this connection for review and approval by the Town Attorney prior to issuance of a Temporary Certificate of Occupancy. 14. That the developer shall prepare and submit all applicable roadway and drainage easements for dedication to the Town for review and approval by the Town Attorney. All easements shall be recorded with the Eagle County Clerk and Recorder's Office prior to issuance of a Temporary Certificate of Occupancy. 15. That the developer shall be assessed an impact fee of $5,000 for all net increase in pm traffic generation as shown in the revised April 4, 2003, Traffic Study. The net increase shall be calculated using the proposed peak generating trips less the existing Resort Hotel and Auto Care Center trips, respectively being 155-(108+7) = 40 net peak trips @ $5,000 = $200,000. This fee will be offset by the cost of non-adjacent improvements constructed. 16. That the developer shall receive approval for all required permits (CDOT access, ACOE, dewatering, storm-water discharge, etc.) prior to issuance of a building permit. 17. That the developer shall submit a full site grading and drainage plan for review and approval by the Town and the Design Review Board. The drainage plan will need to be substantiated by a drainage report provided by a Colorado professional Engineer, include all drainage, roof drains, landscape drains etc., and how they will connect with the TOV storm system. The developer shall submit all final civil plans and final drainage report to the Town for civil approval by the Department of Public Works, prior to submittal of a building permit. 18. That the developer shall provide detailed civil plans, profiles, details, limits of disturbance and construction fence for review and civil approval by the Department of Public Works, prior to submittal of a building permit. 19. That the developer shall be responsible for all work related to providing landscaping and lighting within the proposed Frontage Rd. medians. A detailed landscape plan of the medians shall be provided for review and approval by the Design Review Board. 20. That the developer shall provide additional survey information of the south side of the Frontage Road to show existing trees to be removed and additional survey in front of the Scorpio building in order to show accurate grades for the construction of the path from the Four Seasons to the bus stop at West Star bank. Final design shall be reviewed and approved by the Town and the Design Review Board. 21. That the developer is responsible for 100% of final design improvements along West Meadow Drive from the centerline of the road back to the Four Seasons property line from Mayors' park to western most property line of the Four Seasons, including any drainage and grade tie-ins beyond the west property line. This includes all improvements, including, drainage, lighting, art, streetscape enhancements, edge treatments, curbs, heated walks, etc. Final plans shall match and be coordinated with the proposed Town of Vail Streetscape plan for West Meadow Drive and shall be provided for review and approval by the Design Review Board. 22. That the developer shall incorporate public art into the development, and shall coordinate all art proposals with the Art in Public Places Board, subject to review and approval by the Design Review Board. 23. That the developer shall resolve all of the following design-related issues for final Design Review Board review and approval: a. Proposed hydrant relocation at the NW corner of the property shall be graded to be level with the proposed sidewalk and landscaping will be located as to not interfere with the operation of the hydrant. b. The cross-slope on the West Meadow Drive walk shall maintain a max. 2.0% cross slope that is sloped towards the road. c. The boulder walls and grading at the SE corner of the property shall be modified as to not impact the existing 2-36" CMP's. d. The foundation wall at the SE corner of the parking structure shall be modified to accommodate the existing Spraddle Creek vault. e. The proposed Spraddle Creek vault and concrete box culvert shall be modified to work with the existing phone vault. f. All known existing utilities shall be shown on a plan with the proposed drainage and utilities in order to clarify potential conflicts. g. The proposed walk that meets the frontage road walk at the eastern portion of the property shall be realigned slightly to the west to avoid the existing inlet. h. Fire staging turning movements shall be show on plans. i. Retaining walls west of the loading and delivery access drive shall be curved/angled in order to "bench" access drive wall. j. Top of wall elevation for the Frontage Rd-West Meadow Drive path reads as 185.5?(Typo) k. Railings shall be provided for paths where necessary 1. Show edge of existing pavement for Frontage road on civil plans and show match point. m. Erosion control plan shall be updated. n. Show grading around proposed electric vault. o. Show driveway grades, spot elevations on civil plans. p. Show additional TOW/BOW elevations on pool walls. 24. That the developer shall begin initial construction of the Four Seasons Resort within three years from the time of its final approval at second reading of the ordinance amending Special Development District No. 36, Four Seasons Resort, and continue diligently toward the completion of the project. If the developer does not begin and diligently work toward the completion of the special development district or any stage of the special development district within the time limits imposed, the approval of said special development district shall be void. The Planning and Environmental Commission and Town Council shall review the special development district upon submittal of an application to reestablish the special development district following the procedures outlined in Section 12-9A-4, Vail Town Code. 25. That the Developer shall commit no act or omission in any way to cause the current operation of the Chateau at Vail to cease until such time as a demolition permit is issued by the Department of Community Development. Section 6. Effective Date of the Ordinance Ordinance No. 20, Series of 2005, shall take effect on January 3, 2006. Section 7. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 8. The repeal or the repeal and re-enactment of any provisions of the Vail Municipal Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision repealed or repealed and reenacted. The repeal of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 9. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are hereby repealed to the extent only of such inconsistency. The repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, heretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 20th day of December, 2005, and a public hearing for second reading of this Ordinance set for the 3~d day of January 3, 2006, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. Rodney E. Slifer, Mayor ATTEST: Lorelei Donaldson, Town Clerk Exhibit A: TOWN OF VAIL MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding is made and entered into on the 20`" day of December, 2005 by and between VAIL DEVELOPMENT LLC., a Minnesota corporation and the TOWN OF VAIL a Municipal corporation, situated in the County of Eagle, State of Colorado. WHEREAS, Vail Development LLC is planning the development and construction of a mixed use project consisting primarily of a five star hotel, a fractional fee club, condominiums, retail, employee housing units and related facilities at 28 South Frontage Road and 13 Vail Road, Vail Colorado (Lots 9A and 9C, Vail Village 2nd Filing) currently and commonly known as the Chateau at Vail hotel and the Alpine Standard/Amoco gasoline station; WHEREAS, in connection with its proposed mixed use development Vail Development LLC, is requesting from the Town of Vail certain entitlements pursuant to its applications for a major amendment to Special Development District No. 36, a conditional use permit for Type III Employee Housing Units, a conditional use permit for a Fractional Fee Club and a rezoning of Lot 9A, Vail Village 2"d Filing; WHEREAS, in connection with the applications and requested entitlements, Vail Development, LLC, is required by the Town of Vail to make certain off-site/public improvements (as specifically set forth in detail below) along South Frontage Road and West Meadow Drive consistent with the Town of Vail Streetscape Master Plan, as amended; WHEREAS, as a condition to the second reading of Ordinance No. 20, Series of 2005, the parties are required to enter into this Memorandum of Understanding setting forth the responsibilities, obligations and requirements of the parties in connection with said offsite/public improvements to be performed by Vail Development, LLC, NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. DEFINITIONS I . When used in this Memorandum of Understanding, the following terms shall have the following meanings unless otherwise specifically defined. The singular shall include the plural and the masculine gender shall include the feminine and the neuter unless otherwise required by the context. "Improvements" shall mean those off-site/public improvements as specifically defined in Section III below. "MOU" shall mean this Memorandum of Understanding agreement and all exhibits annexed hereto. "Vail Development" shall mean Vail Development, LLC, a Minnesota corporation, whose address is 600 Foshay Tower, 821 Marquette Avenue South, Minneapolis, Minnesota 55402; Attention: Thomas J, Brink "Parties" shall mean both Vail Development and Town of Vail. "Project" shall mean the mixed use project being planned by Vail Development and consisting primarily of a five star hotel, a fractional fee club, condominiums, retail, employee housing units and related facilities to be located at the Property, which mixed use project is the subject of Ordinance No. 20, Series 2005. "Property" shall mean those properties commonly known as the Alpine Standard/Amoco gasoline station and the Chateau at Vail hotel, located respectively at 28 South Frontage Road and 13 Vail Road, Vail Colorado - Lots 9A and 9C, Vail Village 2' Filing. "Town of Vail" shall mean the Town of Vail, a municipal corporation, whose address is 75 South Frontage Road, Vail Colorado 81657; Attention: II. PURPOSE 2. The express purpose of this MOU is to establish the mutual responsibilities, obligations and requirements of the Parties hereto regarding the Improvements to be performed by Nicollet in connection with Vail Development's entitlements and Project. These Improvements are required to be made by Vail Development based upon the design and functionality of the Project or as specifically required by the Town of Vail in connection with Vail Development's entitlements. III. VAIL DEVELOPMENT'S OBLIGATIONS 3. Vail Development shall be responsible, at its sole cost and expense, except as specifically provided herein, to complete and perform the following (collectively, the "Improvements") in connection with the Project: (a) South Frontage Road. Vail Development shall perform the following improvements along the South Frontage Road, using new and first class materials, as approved by the Town of Vail and the Town of Vail Design Review Board and in accordance with all applicable federal, state and local laws, statutes, ordinances and regulations: (i) widen the south side of South Frontage Road and install a left turn lane in South Frontage Road to the entrance of the hotel and a corresponding left turn lane to the entrance of the existing Town of Vail Police Station; (ii) install medians in South Frontage Road from the main roundabout to the western lot line of the Scorpio Condominium property; (iii) provide all landscaping and lighting within the proposed South Frontage Road median to be constructed by Vail Development; (iv) install an attached heated paver sidewalk/walkway (6 to 8 feet wide) adjacent to the South Frontage Road from the bus stop adjacent to the Weststar Bank east along the Scorpio Condominium property and the Property to Vail Road including all lighting retaining walls, railings, utility relocation, curb and gutter, drainage and landscaping as necessary; (v) relocate the fire hydrant adjacent to South Frontage Road; and (vi) pavement overlay from the centerline of South Frontage Road to the property line of the Property from the main roundabout west to the bus stop adjacent to the Weststar Bank (subject to timing and coordination of the CDOT overlay project that will be at CDOT's sole cost and expense). (b) Vail Road. Vail Development shall perform the following improvements along the Vail Road, using new and first class materials, as approved by the Town of Vail and the Town of Vail Design Review Board and in accordance with all applicable federal, state and local laws, statutes, ordinances and regulations: (i) install an attached heated paver sidewalk/walkway (6 to 8 feet wide) adjacent to Vail Road from the South Frontage Road south along the Property to 9 Vail Road property, including all lighting retaining walls, railings, utility relocation, curb and gutter, drainage and landscaping as necessary; (ii) relocate the Spraddle creek piping and install new box culverts; and (iii) pavement overlay from the centerline of Vail Road to the property line of the Property from the main roundabout (South Frontage Road) south to the property line of 9 Vail Road. along West Meadow Drive, using new and first class materials, as approved by the Town of Vail and the Town of Vail Design Review Board and in accordance with all applicable federal, (c) West Meadow Drive. Vail Development shall perform the following state and local laws, statutes, ordinances and regulations: (i) install an attached heated paver sidewalk/walkway (6 to 14 feet wide, or as required by the final approved Town of Vail Streetscape Master Plan for West Meadow Drive) adjacent to West Meadow Drive from the western most side of Mayors' Park west along the 9 Vail Road property and the Property to the western most property line of the Property, including all lighting retaining walls, railings, utility relocation, curb and gutter, drainage and landscaping as necessary and to match. and be coordinated with the final approved Town of Vail Streetscape plan for West Meadow Drive; (ii) all design improvements along West Meadow Drive from the centerline of the right-of-way to the property line of the Property and the 9 Vail Road property from the western most side of Mayors' park west to the western most property line of the Property (specifically including any drainage and grade tie-ins necessary beyond the western most property line of the Property), including all drainage, lighting, art, streetscape enhancements, utility relocation, edge treatments, curb and gutter and landscaping as necessary and to match and be coordinated with the final approved Town of Vail Streetscape plan for West Meadow Drive. (d) Pedestrian Walkway. Vail Development shall perform the following improvements along the western property line of the Property from the South Frontage Road to West Meadow Drive, using new and first class materials, as approved by the Town of Vail and the Town of Vail Design Review Board and in accordance with all applicable federal, state and local laws, statutes, ordinances and regulations: (i) design and install an attached heated pedestrian sidewalk/walkway along the western property line of the Property from the South Frontage Road south to West Meadow Drive, including all lighting retaining walls, railings, utility relocation, drainage and landscaping as necessary. (e) Spraddle Creek. Vail Development shall perform the following improvements in connection with Spraddle Creek, using new and first class materials, as approved by the Town of Vail and the Town of Vail Design Review Board and in accordance with all applicable federal, state and local laws, statutes, ordinances and regulations. (i) relocate the Spraddle creek piping and install new box culverts, as necessary. IV. EASEMENTS 4. Vail Development shall be responsible, at its sole cost and expense, to prepare and submit all applicable roadway, drainage, and pedestrian easements for dedication in connection with the Project or the Improvements to the Town of Vail for review and approval by the Town of Vail, Town Attorney and all such easements shall be filed and recorded with the Eagle County Clerk and Recorder's Office prior to the issuance of a Temporary Certificate of Occupancy for the Property. V. TOWN OF VAIL'S OBLIGATIONS 5. Once the Improvements have been completed by Nicollet and accepted by the Town of Vail, the Town of Vail shall be responsible for all maintenance, upkeep, watering, mowing, trimming, weed control, snow removal, debris removal, repair and replacement of any and all Improvements located in a public right of way or in a public easement, including any and all cost and expenses associated directly or indirectly therewith (except the Town of Vail shall have no obligation to heat or repair the heat for the sidewalks) and Vail Development shall have no continuing or further obligations or responsibilities in connection therewith. VI. FINANCIAL GUARANTEE REQUIREMENTS 6. Nicollet shall provide and post with the Town of Vail a Bond in the total amount of One Hundred Fifty Percent (150%) of the total cost of the Improvements (as mutually determined and agreed to by and between Vail Development and the Town of Vail), to provide financial security to the Town of Vail and to assure the completion of the Improvements by Vail Development. The Bond shall be provided and posted with the Town of Vail prior to the issuance of a building permit for the Project. VII. MISCELLANEOUS PROVISIONS 7.1 Amendments. This MOU and all documents and instruments executed in connection herewith may be amended, modified or supplemented only by a written instrument, executed by the party against which enforcement thereof may be sought. 7.2 Binding Effect. This MOU shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. The obligations assumed and agreed to be performed by each party hereunder with respect to the Property shall be binding upon such, party and their respective successors, assigns and transferees. The covenants of the Parties contained herein are intended by the parties to be covenants which run with the land under applicable law. Vail Development, LLC, agrees to make any transfer of any interest in the Property subject to the obligations contained in this MOU. 7.3 Colorado Law. This MOU shall be construed and enforced In accordance with the laws of the State of Colorado. 7.4 Time of Essence. Time is of the essence of this MOU. In the event the provisions of this MOU require any act to be done or action to be taken hereunder on a date which is a Saturday, Sunday or legal holiday, such act or action shall be deemed to have been validly done or taken if done or take on the next succeeding day which is not a Saturday, Sunday or legal holiday. 7.5 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute a separate document but all of which together shall constitute one and the same agreement. Signature and acknowledgment pages may be detached and reattached to physically form one document. 7.6 Attorneys' Fees. If legal action is commenced in connection with the enforcement, interpretation, or breach of any provision of this MOU, the Court as part of its judgment shall award reasonable attorneys' fees and costs to the prevailing party. 7.7 Invalidity of Certain Provisions. Every provision of this MOU is intended to be several. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 7.8 Entire Agreement. This MOU and the documents referenced herein set forth all the covenants, promises, agreements, conditions and understandings among the Parties concerning the subject matter hereof and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than as are herein set forth. All negotiations and oral agreements acceptable to both parties have been merged into and are included herein, it being understood that this MOU supersedes and cancels any and all previous negotiations, arrangements, understandings and representations and none thereof shall be used to interpret or construe this MOU. 7.9 Notices. All notices, certificates or other communications required to be given to the Town of Vail or Vail Development, LLC, hereunder shall be sufficiently given and shall be deemed given when delivered, or when deposited in the United States mail, first class, with postage fully prepaid and addressed as follows: If to the Town of Vail; Town of Vail c/o 75 South Frontage Road Vail, Colorado 81657 If to Vail Development, LLC: Vail Development LLC, c/o Thomas J. Brink 600 Foshay Tower 821 Marquette Avenue South Minneapolis, Minnesota 55402 7.10 No Third Party Beneficiary. This MOU and any financial guarantees required pursuant to its terms are not intended for the benefit of any third party. 7.11 Indemnification. Vail Development, LLC, agrees to indemnify and hold the Town of Vail harmless against any and all liability, loss, damages, costs and expenses, including reasonable attorney's fees, which the Town of Vail may hereafter sustain, incur or be required to pay by reason of any negligent act or omission or intentional act of Nicollet, its agents, officers, employees, contractors, or subcontractors, which is incurred in connection with or is of any nature whatsoever arising out of the construction or the installation of the Improvements which Nicollet is required to perform under the terms of this MOU. 7.12 Termination. So long as the Town of Vail approval for the Special Development District No. 36 - Four Seasons Resort remains valid and has not terminated by passage of time or otherwise, this MOU may not be terminated, in whole or in part, without the mutual written consent of the Parties hereto above. WHEREFORE, the Parties hereto have executed this MOU as of the date first set forth VAIL DEVELOPMENT, LLC By: Thomas J. Brink Its: Vice President & General Counsel TOWN OF VAIL By: t s ss ACKNOWLEDGMENT BY VAIL DEVELOPMENT, LLC STATE OF MINNESOTA COUNTY OF HENNEPIN This instrument was acknowledged on the day of , 2005, before me a notary within and for said County by Thomas J. Brink, the Vice President and General Counsel of Vail Development, LLC, a Minnesota corporation, on behalf of the corporation. Notary Public STATE OF COLORADO) ss ACKNOWLEDGMENT BY TOWN OF VAIL COUNTY OF EAGLE On the day of , 2005, before me a notary public within and for said County, personally appeared to me personally known and by me duly sworn, the of the Town of Vail, a municipality named in the foregoing instrument and that the seal affixed to said instrument was signed and sealed on behalf of said municipality by authority of its acknowledged said instrument to be the free act and deed of said municipality. v~pm~ mcm5~, D N C, o CL - 7 m m O.,m C m 3 N (D m (D B CD , CD O , 'o N DD o o l p m ' D D C m Z Z n y G) o O O ° (n V I ~ CI 1 11 1 'n -1 O S C CD -s c Cl) G CD cD N N O n 7 D , 1 A A A O W W W W O 1!) w W N N N N N N N N N -0 1 0 W N Ut 3 V O) (n A 1!5 N O CO (It V co N O O A W O O O O O O O O O O O ? 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CD a o 1 O D I~ i --j O IE m -p o' c c Q c` a O a O c O r C') O o co c CL a O ^ C c C ' O II , 5180 Roswell-Road The Centre Building Atlanta, Georgia 30342 Ph: 404.256.8800 Fax: 404.256.8810 mail@jhgi.com www.jhgi.com 07/14/2005 Mr. Stan Zemler Town Manager Town of Vail 75 South Frontage Road Vail, Colorado 81657 Re: Four Seasons Resort 13 Vail Road Vail, Colorado Dear Mr. Stan Zemler, On behalf of Vail Development, LLC , the developers of the above referenced project, we would like to request a variance be granted from the Town of Vail ordinance against performing any construction work in the public right-of-ways between June 25, 2005 and Labor Day, 2005 to allow for potholing survey work in Vail Road. The information that will be obtained through this work is necessary to complete design of the relocation of Spraddle Creek. The foundations of the hotel structure depend on the relocation of the creek. If this work is not done until after Labor Day, the project will suffer by extending the date of completion until after the winter season of 2007-2008. If this delay occurs, it may well cause the development to cease. We would request that the developers be given permission to make 5 potholes in Vail Road that would cause some traffic control to be in place limiting the flow of traffic. The most critical to traffic flow will be hole number 1 or the northern most location in Vail Road. We request that this work be done starting at 6:OOPM on Monday, July 18, 2005. The remainder of the locations, holes 2, 3, 4 and 5 will be done during regular working hours between 8:00 AM and 6:00 PM on Tuesday July 19 and Wednesday July 20, 2005. Traffic control will also be required. There will be additional potholing work along the right-of way but should not affect any traffic flow or require traffic control. This work will also take place during the above time frame and hopefully be completed by July 21, 2005. No potholing will be done on West Meadow at this time but will be required and requested be performed after Labor Day 2005. C:\DOCUME-1\ADMINI--1\LOCALS-1\Temp\TKassmel Vail letter potholing 7.13.2005.doc f If there are any questions or concerns, please feel free to contact me by phone or e-mail. Thank you for you time. I remain Sincerely, David W. Brooks Sr. Project Manager The John Hardy Group, Inc. Cc: TJ Brinkman Douglas Hipskind Peter Speth C:\DOCUME-1\ADMINI-ITOCALS-I\Temp\TKassmel Vail letter potholing 7.13.2005.doc b 07/14/2005 Mr. Thomas Kassmel, PE Town Engineer Town of Vail 75 South Frontage Road Vail, Colorado 81657 Re: Four Seasons Resort 13 Vail Road Vail, Colorado Dear Mr.Kassmel, do g 5180 Roswell Road The Centre Building Atlanta, Georgia 30342 Ph: 404.256.8800 Fax: 404.256.8810 mail@jhgi.com www.jhgi.com l/ <00" On behalf of Vail Development, LLC , the developers of the above referenced project, we would like to request a variance be granted from the Town of Vail ordinance against performing any construction work in the public right-of-ways between June 25, 2005 and Labor Day, 2005 to allow for potholing survey work in Vail Road. The information that will be obtained through this work is necessary to complete design of the relocation of Spraddle Creek. The foundations of the hotel structure depend on the relocation of the creek. If this work is not done until after Labor Day, the project will suffer by extending the date of completion until after the winter season of 2007-2008. If this delay occurs, it may well cause the development to cease. We would request that the developers be given permission to make 5 potholes in Vail Road that would cause some traffic control to be in place limiting the flow of traffic. The most critical to traffic flow will be hole number I or the northern most location in Vail Road. We request that this work be done starting at 6:OOPM on Monday, July 18, 2005. The remainder of the locations, holes 2, 3, 4 and 5 will be done during regular working hours between 8:00 AM and 6:00 PM on Tuesday July 19 and Wednesday July 20, 2005. Traffic control will also be required. There will be additional potholing work along the right-of way but should not affect any traffic now or require traffic control. This work will also take place during the above time frame and hopefully be completed by July 21, 2005. No potholing will be done on West Meadow at this time but will be required and requested be performed after Labor Day 2005. CADOCUME-1\ADMINI-1\LOCALS-1\Temp\TKassmel Vail letter potholing 7.13.2005.doc ALPINE ENGINEERING, INC. July 8, 2005 Mr. Leonard Sandoval Town of Vail 75 South Frontage Road Vail, CO 81657 RE: Four Seasons Resort Potholing Dear Leonard: On behalf of the Owners of the aforementioned project, Alpine Engineering, Inc. (AEI) is requesting permission from the Town to pothole for some existing utilities adjacent to the project site. It is anticipated that the proposed potholing will take place not only within the project limits but also within the Vail Road and West Meadow Drive right-of-ways. AEI has selected Rippy Utility Locating services for the non-destructive potholing and CC Enterprises for the traffic control. Currently, it is estimated that approximately 15-20 potholes will be required although this number by be revised depending on the result from previous potholes. CC Enterprises traffic control plan will reflect the need to protect the pedestrian and bike traffic on the West Meadow Drive as well as the pedestrian movements at the existing cross-walk on Vail Road. Further, ingress and egress movements for Shaw Construction on Vail Road will be maintained. Based on our discussions at the site, the potholes will be filled with gravel and topped with 5-inches of cold patch or asphalt millings as a temporary measure. Once the potholing as been completed, the temporary potholes measures will be removed and the holes filled with concrete flowfill and topped with 5-inches of hot bituminous asphalt. Infra-red sealing will not be required for the potholes. Rippy Utility Locating services would like to begin their work next week. We estimate that the potholing will require approximately 3-5 days to complete. I have reviewed the Edwards Business Center • P.O. Box 97 • Edwards, Colorado 81632 • (970) 926-3373 • Fax (970) 926-3390 v I a Town of Vail Right-of-Way permit with the contractor. This permit, traffic control plan and the potholing plan will be submitted for your review. We understand that the Town will require a bond for the work which will be done and that you will provide our office with the bond amount prior to the start of construction. Leonard, should you have additional questions or comments please do not hesitate to call S~ cerely, cNeil, PE JM/ac Cc: Dave Brooks; JHGI 2 02/14/2005 14:41 FAX 9704764534 LAND TITLE-VAIL 906005 Teak J Simonton Eagle, CO 02911/2005 04:49P 174 R 91.00 D 0.00 RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO: IM007/008 G) 141t. l' Vail Development, LLC -0 k% r c/o Capital Real Estate, Inc. G 50 South Sixth Street, Suite 1480 Minneapolis, Minnesota 55402. V Attention: Manager \p~(~ CONSTRUCTION AGREEMENT AND TEMPORARY CONSTRUCTION EASEMENT his Construction Agreement and Temporary Construction Easement is dated this day of February, 2005 and made effective as of February 11 , 2005 by and between Vail Development, LLC, a Delaware limited liability company ("Grantee"), and Holiday House Condominium Association, d/b/fit 9- Vail Road Condominiums ("Grantor"). WHEREAS, Grantor is the association which represents each unit owner with respect to the common elements of Grantor Property, as hereafter defined (including, but not limited to, parking and access rights), which in turn are the fee owners of that certain parcel of real property located in the Town of Vail, County of Eagle, State of Colorado, which is more particularly described on Exhibit "A" attached hereto (the "Grantor Property"); and WHEREAS, in conjunction with the development of property adjacent to the Grantor Property and the construction of certain improvements on that property, which is more particularly described on Exhibit "B" attached hereto (the "Grantee Property'), Grantee desires to construct certain parking facilities and to acquire a temporary construction easement over the Grantor Property to permit Grantee and its contractors to enter upon, store construction nhaterials and equipment on and conduct certain construction activities over, under, through and across the Grantor Property, related solely to the Improvements (defined below) on the Grantor Property; and WHEREAS, Grantor is willing to enter into such construction agreement and grant such easement to Grantee pursuant to the terms and conditions set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Definitions. The terms set forth below shall for the purposes of this Agreement have the following meanings: (a) "Existing Parking Stalls" shall mean those four (4) existing surface parking stalls owned by Grantor and located on the Grantor Property and 95907.doc 02/14/2005 MON 14:44 fill JOB NO. 86971 Z007 RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO: Vail Development, LLC c/o Capital Real Estate, Inc. 50 South Sixth Street, Suite 1480 Minneapolis. Minnesota 55402 Attention: Manager CONSTRUCTION AGREEMENT AND TEMPORARY CONSTRUCTION EASEMENT This Construction Agreement and Temporary Construction Easement is dated this g day of February, 2005 and made effective as of February _-JL-, 2005 by and between Vail Development, LLC, a Delaware limited liability company ("Grantee"), and Holiday House Condominium Association, d/b/a 9 Vail Road Condominiums ("Grantor"). WHEREAS, Grantor is the association which represents each unit owner with respect to the common elements of Grantor Property, as hereafter defined (including, but not limited to, parking and access rights), which in turn are the fee owners of that certain parcel of real property located in the Town of Vail, County of Eagle, State of Colorado, which is more particularly described on Exhibit "A" attached hereto (the "Grantor Property"); and WHEREAS, in conjunction with the development of property adjacent to the Grantor Property and the construction of certain improvements on that property, which is more particularly described on Exhibit "B" attached hereto (the "Grantee Property"), Grantee desires to construct certain parking facilities and to acquire a temporary construction easement over the Grantor Property to permit Grantee and its contractors to enter upon, store construction materials and equipment on and conduct certain construction activities over, under, through and across the Grantor Property, related solely to the Improvements (defined below) on the Grantor Property; and WHEREAS, Grantor is willing to enter into such construction agreement and grant such easement to Grantee pursuant to the terms and conditions set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Definitions. The terms set forth below shall for the purposes of this Agreement have the following meanings: (a) "Existing Parking Stalls" shall mean those four (4) existing surface parking stalls owned by Grantor and located on the Grantor Property and 95907.doc a-- situated to the North of Grantor's building and South of the adjacent Alpine Standard property. (b) "Proposed Parking Stalls" shall mean the four (4) proposed surface parking stalls to be designed and constructed by Grantee for Grantor, located on the Grantor Property and situated to the South of Grantor's building, to the North of West Meadow Drive and immediately adjacent to the existing driveway servicing Grantor's underground parking structure and shall be as approved by the Town of Vail. (c) "Access to the Existing Parking Stalls" shall mean the access route beginning at Vail Road and continuing directly West over the existing driveway located on the Grantee Property to the location of the Existing Parking Stalls. (d) "Force Majuere Delays" shall mean delays due to: any action or inaction of Grantor or its agents, unit owners, employees or consultants; lockouts; labor disputes; acts of God; inability to obtain labor, materials or reasonable substitutes therefore; governmental restriction, regulations or controls; and other causes beyond the reasonable control of Grantee. 2. Construction Obligations and Duties. The Grantee and the Grantor shall have the following respective obligations and duties with respect to the activities to be undertaken and accomplished in connection with this Construction Agreement and Temporary Construction Easement, including but not limited to the obligations and duties to perform the projects described as "permitted construction activities" and as the "Improvements" in Section 3 hereof (a) Grantee shall undertake and complete the construction of the Proposed Parking Stalls according to the following terms and the other terms contained in this Agreement: (i) Grantee will demolish and remove the Existing Parking Stalls and related hardscape at its sole cost and expense and will design and construct the Proposed Parking Stalls, in accordance with the plans approved by the Town of Vail Town Council, as may be modified by the final review of the Design Review Board, all at its sole cost and expense, including the relocation of conflicting utilities (if any) and the relocation of Grantor's underground parking access panel. (ii) Grantee will design, grade and install landscaping in the area demolished by Grantee and located on Grantor's Property consisting of the Existing Parking Stalls and related hardscape area, in accordance with the final approvals from the Town of Vail, at Grantee's sole cost and expense, with landscaping materials, shrubs, trees, etc. to be mutually agreed upon between Grantee and 95907.doc 2 Grantor (or absent agreement, to be determined through arbitration) and consistent with the proposed and existing landscaping in the surrounding area and in compliance with the future approval by the Town of Vail Design Review Board. (b) Grantor shall have the following respective obligations and duties with respect to the activities to be undertaken and accomplished in connection with this Construction Agreement and Temporary Construction Easement: (i) Grantor shall, after completion of the construction of the Proposed Parking Stalls and completion of the landscaping in the area of the Existing Parking Stalls (or any portion thereof), accept and receive the same from Grantee and thereafter bear any and all cost and expense (without right to indemnification or contribution from Grantee) related, directly or indirectly to the maintenance, repair and replacement of the completed Proposed Parking Stalls and completed landscaping, subject only to any contractor warranties in connection with the work performed. (ii) Grantor will cooperate with Grantee and use its best efforts to minimize the disruption to Grantee's construction of the Four Seasons Resort Vail on the Grantee Property (the "Resort") during the demolition and construction of the Existing Parking Stalls and Proposed Parking Stalls. 3. Grant of Easement. Grantor hereby grants unto Grantee and its employees, agents, contractors, subcontractors, materialmen and assigns a temporary construction easement permitting Grantee and its employees, agents, contractors, subcontractors, materialmen and assigns to enter upon and conduct the construction activities described herein over, under, through and across the Grantor Property (the "Easement"). The permitted construction activities shall include the storage of materials and equipment on the Grantor Property and all reasonable activities related to the following (collectively, the "Improvements") (i) the demolition and removal of the Existing Parking Stalls and related hardscape (which shall be completed by Grantee on or before issuance of a temporary or permanent certificate of occupancy for the Resort); (ii) the construction of the Proposed Parking Stalls, and the resurfacing of the Proposed Parking Stalls with the final finish approved by the Town with snow melt devices fully installed and installation of landscaping in the area of the Proposed Parking Stalls (which shall be completed by Grantee prior to the earlier of October 7, 2005 or the issuance of a temporary or permanent certificate of occupancy for the Resort); (iii) the relocation of any conflicting utilities in the area of the Proposed Parking Stalls (which shall be completed by Grantee on or before the earlier of October 7, 2005 or the issuance of a temporary or permanent certificate of occupancy for the Resort); (iv) the relocation of the Grantor's underground parking access panel (which shall be completed by Grantee on or before the earlier of October 7, 2005 or the issuance of a temporary or permanent certificate of occupancy for the Resort); (v) the necessary relocation and reeontainment in a concrete box culvert of Spraddle Creek, in an area north of the existing building on the Grantor Property cross-hatched on Exhibit "C" attached hereto (including 95907.doc a restoration, re-vegetation and re-landscaping of such area), and as indicated in Grantee's approved plan with the Town of Vail and pursuant to plans and specifications therefor approved by the Town of Vail (which shall be completed by Grantee on or before the earlier of October 7, 2006 or the issuance of a temporary or permanent certificate of occupancy for the Resort); (vi) the construction of sidewalks along the southern property line of the Grantor Property, pursuant to plans and specifications therefor approved by the Town of Vail (which shall the completed by Grantee prior to issuance of a temporary or permanent certificate of occupancy for the Resort); (vii) the construction of streetscape improvements along the southern property line of the Grantor Property pursuant to plans and specifications therefor approved by the Town of Vail (which shall be completed by Grantee prior to issuance of a temporary or permanent certificate of occupancy for the Resort); and (viii) the restoration, revegetation and landscaping of the area that currently consists of the Existing Parking Stalls and related hardseape (which shall be completed by Grantor prior to issuance of a temporary or permanent certificate of occupancy for the Resort). Notwithstanding the foregoing, the Easement granted hereunder shall not permit any activities which adversely affect the building located on Grantor Property and containing the 9 Vail Road condominium units. Further, nothing contained herein shall be construed as affecting the rights of Grantor or its unit owners to appear before any governmental agency of the Town of Vail regarding any proposed activity set forth herein. 4. Term. The Easement shall terminate of its own accord, without further action by either party, on December 31, 2007, provided that, in the event that Grantee completes its construction activities on the Grantor Property and the Improvements are accepted by Grantor and/or approved by the Town of Vail on or before such date, Grantee and Grantor agree to provide a recordable termination of this Agreement and release of this Easement upon written request from either Grantee or Grantor. 5. Liens. In the event that any liens are filed against the Grantor Property or any part thereof arising out of or related to any work performed by or on behalf of Grantee in connection with this Agreement, Grantee shall have such liens discharged of record or insured or bonded over within thirty (30) days of receipt of notice of said lien. 6. Hazardous Waste. The Grantee shall hold the Grantor harmless from and against all claims of whatever nature related to hazardous substances whose presence upon or under the Easement is caused directly by Grantee or its employees, agents, contractors, subcontractors or materialmen. Such term "hazardous substances" shall be interpreted herein as it and similar terms are defined in the Federal Resource Conservation and Recovery Act of 1976, the Federal Comprehensive Environmental Response Compensation and Liability Act of 1980, the Superfund Amendments and Reauthorization Act of 1986 (U.S.C. § 9601, et seq.), as amended. 7. Conditions of Construction Easement. Grantor and Grantee shall abide by the following terms and conditions in connection with the demolition and construction of the Improvements: (a) All demolition and construction of the Improvements shall be at Grantee's sole cost and expense and shall be fully completed by Grantee on or before the applicable dates set forth in Section 3 hereof. 95907.doe 4 V (b) The (i) demolition and removal of Existing Parking Stalls and related landscape in the area that currently consists of the Existing Parking Stalls and related hardscape, (ii) construction of the Proposed Parking Stalls, (iii) relocation of any conflicting utilities in the area of the Proposed Parking Stalls, and (iv) the relocation of the Grantor's underground parking access panel, shall be performed by Grantee between the months of April and June inclusive or between September 6 and November 15 and only between the hours as specifically allowed and reQulated by the Town of If there are any questions or concerns, please feel free to contact me by phone or e-mail. Thank you for you time. I remain Sincerely, David W. Brooks Sr. Project Manager The John Hardy Group, Inc. Cc: TJ Brinkman Douglas Hipskind Peter Speth Property, such as, in the Gateway Building parking facility or the Vail Village Inn surface parking lot accessed from Vail Road or on the Grantee Property. (g) Grantee shall ensure that in the event that temporary parking stalls are established and provided to Grantor, that the Proposed Parking Stalls shall be completed and operational no more than six (6) months after establishment of the temporary parking stalls, subject to any Force Majeuere Delays. (h) Grantor shall cooperate with and assist Grantee (without cost and expense to Grantor) in the timely completion of the Improvements and in the timely performance of the purpose of this Agreement. (i) Grantee shall not install construction fencing on the Grantor Property, except only to the extent required with respect to a specific construction activity permitted by Section 3 hereof and then only during the period of such construction activity. (j) Grantor shall, after completion of the Improvements (or any portion thereof), accept and receive the same from Grantee without recourse and thereafter bear any and all cost and expense (without right to indemnification or contribution from Grantee) related, directly or indirectly to the maintenance, repair and replacement of the Improvements, subject only to any contractor warranties. 8. Restoration. Grantee agrees, at its sole cost and expense, to restore the surface of the Grantor's Property damaged by Grantee or its employees, agents, contractors, subcontractors and materialmen (if any) in the demolition or construction of the Improvements. 9. Monitoring for Structural Damage. Grantee shall reimburse Grantor for Grantor's reasonable costs, not to exceed a total reimbursement of Thirty-Five Thousand Dollars ($35,000), to engage a structural engineer licensed in Colorado to monitor any structural damage to the improvements currently existing on the Grantor Property that may occur as a result of Grantee's construction of the Resort on the Grantee Property or Grantee's construction of the Improvements on the Grantor Property; provided however, that Grantor shall require such engineer, (a) prior to commencement of construction of the Resort, to prepare a "base line" report of the structural status of the improvements on the Grantor Property certified to and provided to Grantor and Grantee, and (b) to certify and provide all subsequent monitoring reports, data and evaluations to both Grantor and Grantee. Such reimbursement shall be due and payable by Grantee within thirty (30) days of Grantee's receipt of reasonable evidence documenting such costs. Grantee may, at its election, cause its own consultants to enter the Grantor Property prior to commencement of construction of the Resort to assess the current structural condition of the improvements on the Grantor Property. 95907.doc 6 10. Remedies and Enforcement. (a) All Legal and Equitable Remedies Available. in the event of a breach or threatened breach by Grantor or Grantee of any of the terms, covenants, restrictions or conditions hereof, the other shall be entitled forthwith to fell and adequate relief by injunction and/or all such other available legal and equitable remedies from the consequences of such breach, including payment of any amounts due and/or specific performance. (b) Self-Help. In addition to all other remedies available at law or in equity, upon the failure of a defaulting party to cure a breach of this Agreement within thirty (30) days following written notice thereof by such non- defaulting party (unless, with respect to any such breach the nature of which cannot reasonably be cured within such 30-day period, the defaulting party commences such cure within such 30-day period and thereafter diligently prosecutes such cure to completion), the non- defaulting party shall have the right to perform such obligation contained in this Agreement on behalf of such defaulting party and be reimbursed by such defaulting party upon demand for the reasonable costs thereof together with interest at the prime rate announced from time to time by the Wall Street Journal, plus two percent (2%) (not to exceed the maximum rate of interest allowed by law). Notwithstanding the foregoing, in the event of an emergency a party hereto may immediately cure the same and be reimbursed by the other party upon demand for the reasonable cost thereof together with interest at the prime rate, plus two percent (2%), as above described. (c) Lien Rights. Any claim for reimbursement, including interest as aforesaid, and all costs and expenses including reasonable attorneys' fees awarded to any party in enforcing any payment in any suit or proceeding under this Agreement shall be assessed against the defaulting party in favor of the prevailing party and shall constitute a lien (the "Assessment Lien") against said defaulting party's property until paid, effective upon the recording of a notice of lien with respect thereto in the Office of the County Recorder of the County of Eagle, State of Colorado; provided, however, that any such Assessment Lien shall be subject and subordinate to (i) liens for taxes and other public charges which by applicable law are expressly made superior, (ii) all liens recorded in the Office of the County Recorder of the County of Eagle, State of Colorado, prior to the date of recordation of said notice of lien, (iii) all leases entered into, whether or not recorded, prior to the date of recordation of said notice of lien; and (iv) all management and other agreements entered into with respect to the operation and management of the Property, whether or not recorded, prior to the date of the said notice of lien. All liens recorded subsequent to the recordation of the notice of lien described herein shall be junior and subordinate to the Assessment Lien. Upon the timely curing by the defaulting party of any 95907.doe 7 default for which a notice of lien was recorded, the party recording same shall record an appropriate release of such notice of lien and Assessment Lien. (d) Remedies Cumulative. The remedies specified herein shall be cumulative and in addition to all other remedies permitted at law or in equity. 11. Indemnity. Grantee agrees to indemnify and hold Grantor harmless from and against any and all claims, demands, debts, causes of action, suits, covenants, contracts, agreements and costs, whether to persons or property, as a result of: (i) any third party action arising directly out of the activities of Grantee or its employees, agents, contractors, subcontractors or materialmen hereunder; (ii) the construction activities to be performed by Grantee or its employees, agents, contractors, subcontractors or materialmen, and (iii) any damage or flooding of the Grantor Property caused by the negligence or willful misconduct of Grantee in completing the relocation of Spraddle Creek on the Grantor Property, and Grantee agrees to defend and hold Grantor harmless in any action or litigation, threatened or otherwise, arising out of such direct activity of Grantee hereunder, including, but not limited to, Grantor's reasonable attorney's fees and costs. 12. Grant of Public Easements. Grantor shall execute such drainage and utility easements to the Town of Vail, or other units of government, or to the public as may be reasonably required by the Town of Vail or such other units of government to embrace the final Spraddle Creek improvements and relocated public utilities on the Grantor Property. 13. Survival of Terms. The terms, conditions, liabilities and obligations contained in paragraphs 5, 6, 70), 8, 10, 11 and 12 shall survive the termination of this Agreement regardless of the form or timing of the termination. 14. Notices. Notices, communications or demands required or permitted to be given hereunder shall be given by certified mail, return receipt requested or by national overnight courier company, or personal delivery. Notice shall be deemed given upon receipt or refusal to accept delivery. Each party may change from time to time their respective address and/or telephone and fax numbers for notice hereunder by like notice to the other party. The notice addresses are as follows: In the case of Grantor: Holiday House Condominium Association, d/b/a 9 Vail Road Condominiums P. O. Box 5733 Vail, Colorado 81658-5733 Attention: Association President Phone: (970) 479-7100 / Fax: (970) 476-8852 95907.doc 'If In the case of Grantee: Vail Development, LLC c/o Capital Real Estate, Inc. 50 South Sixth Street, Suite 1480 Minneapolis, MN 55402 Attention: Manager Phone: (612) 313-2500 / Fax: (612) 313-0136 or at such other address as such party may specify in writing. 15. Governing Law. The laws of the State of Colorado shall govern the interpretation, validity, performance, and enforcement of this Agreement. 16. Estoppel Certificates. Each party hereto, within twenty (20) days of its receipt of a written request from the other party, shall from time to time provide the requesting party, a certificate binding upon such party stating: (a) to the best of such party's knowledge, whether any party to this Agreement is in default or violation of this Agreement and if so identifying such default or violation; and (b) that this Agreement is in full force and effect and identifying any amendments to the Agreement as of the date of such certificate. 17. Bankruptcy. In the event of any bankruptcy affecting any party, the parties agree that this Agreement shall, to the maximum extent permitted by law, be considered an agreement that runs with the land and that is not rejectable, in whole or in part, by the bankrupt person or entity. 18. Counterparts. This Agreement may be executed in counterparts, all of which taken together shall constitute one and the same instrument. 19. Amendment. The parties agree that the provisions of this Agreement may be modified or amended, in whole or in part, or terminated, only by the written consent of the parties hereto (or such successors and assigns). 20. No Waiver. No waiver of any default of any obligation by any party hereto shall be implied from any omission by the other party to take any action with respect to such default. 21 Representations. Each of the parties hereto, hereby represents and warrants to the other party that they have the express authority and power to enter into this Agreement and to grant the Easements set forth herein. Further, the parties represent and warrant to the other party that the individuals executing this Agreement on behalf of said party have the unqualified authorization and authority to execute this Agreement and bind said party to the express terms hereof. 22. Arbitration. The parties hereto hereby acknowledge and agree that subject to the interim rights noted below any controversy or claim arising out of or related, directly or indirectly to this Construction Agreement and Temporary Construction Easement shall be resolved by arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules and Mediation Procedures and judgment on the award 95907.doc 9 411 rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties hereto further acknowledge and agree that the arbitration shall be held in the State of Colorado and that the arbitrator(s) may grant any remedy or relief, consistent with Colorado law, that the arbitrator(s) deems just and equitable and within the scope of this Construction Agreement and Temporary Construction Easement, including, but not limited to, summary judgment, and specific performance. The parties hereto hereby agree that the arbitrator(s) shall not have the authority, in the award, to assess damages or fees, expenses and compensation (including but not limited to, reasonable attorneys' fees and costs) in favor of the prevailing party in the arbitration, but shall have only the authority to require specific performance. Each party shall also have the right to apply for and to obtain interim judicial relief pending the results of the arbitration. [Remainder of Page Intentionally Left Blank] 95907.doc 10 T IN WITNESS WHEREOF, the parties have executed this Temporary Construction Easement as of the day and year first above written. "GRANTEE" VAIL DEVELOPMENT, LLC, a Delaware limited liability company By. a c a ser I : Co-Manager STATE OF MINNESOTA COUNTY OF HENNEPIN ss. This instrument was acknowledged before me on February 2005, by Richard J. Hauser, the Co-Manager of Vail Development, LLC, a Delaware limited liability co party, on behalf of the limited liability company. CHARLOTTE MARIA $CHU NOTARY PUBLIC - MINNESOTA My Comm. Expires Jan. 31, 2007 r , Notary Public 95907.doc I I "GRANTOR" HOLIDAY HOUSE CONDOMINIUM ASSOCIATION, d/b/a 9 VAIL ROAD CONDOMINIUMS, a Colorado corporation By: .:I~:-- G~701~~ lpello President By: Peter Mourani, its Secretary STATE OF COLORADO COUNTY OF EAGLE ss. This instrument was acknowledged before me on February , 2005 by Gwendolyn Scalpello as the President of Holiday House Condominium Association, d/b/a 9 Vail Road Condominiums, a Colorado corporation, on behalf of the corporation. STATE OF COLORADO COUNTY OF EAGLE ss. This instrument was acknowledged before me on February 2005 by Peter Mourani as the Secretary of Holiday House Condominium Associatio d/b/a 9 Vail Road Condominiums, a Colorado corporation on behalf of the corporation. Notary Plic G 6 ,2e98 JUDY V. ; BULEN 95907.doc 12 EXHIBIT A GRANTOR PROPERTY LEGAL DESCRIPTION A part of the Northeast one-quarter of Section 7, Township 5 South, Range 80 West of the Sixth Principal Meridian and being a part of Lots A, B, and C of Amended Map of Sheet 1 of 2 of Vail Village Second Filing, County of Eagle, State of Colorado, more particularly described as follows: Commencing at the Northeast corner of said Section 7; thence Southerly and along the East line of the Northeast one-quarter of said Section 7, 39.20 feet to the South right-of-way line of U.S. Highway No. 6; thence on an angle to the right of 100 degrees 41'47" and along said South right-of-way line 25.44 feet to a point on the West line of Vail Road, said point being the Northeasterly corner of said Lot A; thence continuing along the aforementioned line and along the Northerly line of said Lot A, 152.65 feet to the Northwesterly corner of said Lot A; thence on an angle to the left of 100 degrees 41'47" and along the West line of said Lot A, 139.15 feet to the true point of beginning; thence on an angle to the left of 73 degrees 53'12", 156.13 feet to the West line of Vail Road; - thence on an angle to the right of 73 degrees 53'12" and along said West line 202.15 feet; thence on an angle to the right of 90 degrees 00'00", 98.75 feet to the Northerly line of West Meadow Drive; thence on an angle to the right of 58 degrees 16'39" and along said Northerly line and along a curve to the left having a radius of 175.00 feet, a central angle of 36 degrees 00'15", an arc distance of 109.97 feet to a point of tangent; thence along said tangent and along said Northerly line 11.00 feet; - thence on an angle to the right of 141 degrees 46'30", 101.50 feet; - thence on an angle to the left of 102 degrees 13'17", 86.00 feet; - thence on an angle to the right of 90 degrees 00'00", 18.27 feet; - thence on an angle to the left of 90 degrees 00'00", 67.00 feet, more or less, to the true point of beginning; containing 28,347.31 square feet or 0.65 acres., more or less. 95907.doc 4`;~' EXHIBIT B GRANTEE PROPERTY LEGAL DESCRIPTION PARCEL A: A part of the Northeast one-quarter of Section 7, Township 5 South, Range 80 West of the Sixth Principal Meridian and being a part of Lots A, B, and C of Amended Map of Sheet I of 2 of Vail Village Second Filing, County of Eagle, State of Colorado, more particularly described as follows: Commencing at the Northeast Corner of said Section 7; thence Southerly and along the East line of the Northeast one-quarter of said Section 7, 39.20 feet to the South right-of-way line of U.S. Highway No. 6; thence on an angle to the right of 100 degrees 41'47" and along said South right-of-way line, 25.44 feet to a point on the West line of Vail Road, said point being the Northeasterly corner of said Lot A; thence continuing along the aforementioned line and along the Northerly line of said Lot A, 152.65 feet to a point on the Northwesterly corner of said Lot A, said point being the true point of beginning; thence on an angle to the left of 100 degrees 41'47" and along the West line of said Lot A, 110.00 feet; thence on an angle to the left of 73 degrees 53'12", 156.13 feet to the West line of Vail Road; - thence on an angle to the right of 73 degrees 53'12" and along said West line 29.15 feet; thence on an angle to the right of 106 degrees 06'48", 156.13 feet to the West line of said Lot A; thence on an angle to the left of 134 degrees 17' 11 67.00 feet; thence on an angle to the right of 90 degrees 00'00", 18.27 feet; thence on an angle to the left of 90 degrees 00'00", 86.00 feet; thence on an angle to the right of 102 degrees 13'17", 101.50 feet, more or less to the Northerly line of West Meadow Drive; - thence on an angle to the right of 38 degrees 13'30" and along the said Northerly line 264.42 feet to a point of curve; - thence continuing along said Northerly line and along a curve to the left having a radius of 525.00 feet, a central angle of 06 degrees 23'12", an arc distance of 58.52 feet to the Westerly line of Lot C; - thence on an angle to the right of 84 degrees 48'35" and along the Westerly line of Lot C, 251.25 feet to the South right-of-way line of U.S. Highway No. 6; - thence on an angle to the right of 90 degrees 00'00" and along said South right-of-way line 300.00 feet, more or less, to the true point of beginning. 11.0 TOGETHER WITH AN EASEMENT for Ingress and Egress to and from subject property described as follows: A triangular easement at the Northwest comer of a part of Lot A of Amended Map of Sheet 1 of 2 of Vail Village Second Filing, County of Eagle, State of Colorado more particularly described as follows: Commencing at the Northeast corner of Section 7, Township 5 South, Range 80 West of the Sixth Principal Meridian; thence Southerly and along the East line of said Section 7, 39.20 feet to the South right- of-way line of U.S. Highway No. 6; thence on an angle to the right of 100 degrees 41'47" and along said South right-of-way line, 178.09 feet to the Northwest corner of said Lot A and to the true point of beginning, thence on an angle to the left of 100 degrees 41'47" and along the West line of said Lot A, 65.44 feet; thence on an angle to the left of 90 degrees 00'00", 5.00 feet; thence on an angle to the left of 63 degrees 29'51", 65.86 feet to the North line of said Lot A; thence on an angle to the left of 105 degrees 48'22" and along said North line of 35.00 feet to the true point of beginning; Also, TOGETHER WITH an Easement for Ingress and Egress to and from subject property described as follows: A triangular easement at the Southwest corner of a part of Lot A of Amended Map of Sheet 1 of 2 of Vail Village Second Filing, County of Eagle, State of Colorado, more particularly described as follows: Commencing at the Northeast corner of Section 7, Township 5 South, Range 80 West of the Sixth Principal Meridian; thence Southerly and along the East line of said Section 7, 39.20 feet to the South right- of-way line of U.S. Highway No. 6; - thence on an angle to the right of 100 degrees 41'47" and along said South right-of-way line 178.09 feet to the Northwest corner of said Lot A; - thence on an angle to the left of 100 degrees 41'47" and along the West line of said Lot A, 95.00 feet to the true point of beginning; thence on a curve to the left, having a radius of 15.00 feet, a central angle of 70 degrees 18'45", an arc length of 18.08 feet to a point of tangent; thence along said tangent, 58.05 feet; thence on an angle to the right of 176 degrees 25'33", 67.00 feet to the West line of said Lot A; thence on an angle to the right of 73 degrees 53'12" and along said West line 15.00 feet, more or less, to the true point of beginning, County of Eagle, State of Colorado PARCEL B: A PART OF LOT A OF AMENDED MAP OF SHEET I OF 2 OF VAIL VILLAGE, SECOND FILING, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT A; THENCE SOUTH 79 DEGRESS 41 MINUTES 13 SECONDS EAST AND ALONG THE NORTHERLY LINE OF SAID LOT A, A DISTANCE OF 152.65 FEET TO THE NORTHEAST CORNER OF SAID LOT A; THENCE SOUTH 0 DEGREES 23 MINUTES 00 SECONDS EAST ALONG THE EASTERLY LINE OF SAID LOT A, A DISTANCE OF 125.00 FEET; THENCE NORTH 74 DEGRESS 16 MINUTES 12 SECONDS WEST A DISTANCE OF 156.13 FEET TO A POINT OF INTERSECTION WITH THE WESTERLY LINE OF SAID LOT A; THENCE NORTH 0 DEGREES 23 MINUTES 00 SECONDS WEST AND ALONG SAID WESTERLY LINE OF SAID LOT A, A DISTANCE OF 110.00 FEET TO THE TRUE POINT OF BEGINNING, COUNTY OF EAGLE, STATE OF COLORADO, TOGETHER WITH AN EASEMENT FOR INGRESS AND EGRESS BEING A PART OF LOT A OF AMENDED MAP OF SHEET 1 OF 2 VAIL VILLAGE, SECOND FILING, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY CORNER OF LOT A; THENCE SOUTH 0 DEGREES 23 MINUTES 00 SECONDS EAST AND ALONG THE EASTERLY LINE OF SAID LOT A, A DISTANCE OF 125.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 73 DEGREES 30 MINUTES 12 SECONDS WEST A DISTANCE OF 156.13 FEET TO A POINT OF INTERSECTION WITH THE WESTERLY LINE OF SAID LOT A; THENCE SOUTH 0 DEGREES 23 MINUTES 00 SECONDS EAST AND ALONG WESTERLY LINE A DISTANCE OF 29.15 FEET; THENCE SOUTH 73 DEGREES 30 MINUTES 12 SECONDS EAST A DISTANCE OF 156.13 FEET TO A POINT OF INTERSECTION WITH THE EASTERLY LINE OF SAID LOT A; THENCE NORTH 0 DEGREES 23 MINUTES 00 SECONDS WEST AND ALONG SAID EASTERLY LINE A DISTANCE OF 29.15 FEET TO THE TRUE POINT OF BEGINNING, COUNTY OF EAGLE, STATE OF COLORADO. 0( EXHIBIT C AREA OF SPRADDLE CREEK RELOCATION ON GRANTOR PROPERTY (Cross-hatched area on attached drawing) 95907.doc Ntlt ~ ~ t r r ta9a sau ~ ~~sngro 1 1 I 1 ~I AND sa N 1 1 I of ~3` a . tas ~ 1 1 I b 69.13. 1 1 11 \ ~ A ~ 1 j Iy ~ If ~ 6• ®1s6-+r19asY ~IsTow No I • « '2s•w. 28.15 16. 27' t.Y 1~♦`Ifr-SSr~ ' Mtn lase- A ~j s~g eav' ♦ r, ♦6y//~~' I1[ty~ SOi7 x7'K aOr f119Y nlartnir ooalut I ( q y ~ "wu FmcpaR Gomel) AREA OF SPRA LE R splo" EEK 1 m c=oowr PROPERTY RELOCATION ON GRA , xT l0 OR a rn~ 1 ai VNL NLLACC -LOT A NfE11Um MAP di SNE6T 10/ 2 VNL 4A1J16E, D F'No SE fildl0 ` HOLIDAY HOUSE CONDOMINIUM ASSOCIA11ON 1,5' (9 VAIL ROAD CONDOMINIUMS) I ♦ CONDOMINIUM MAP THE HOLIDAY HOUSE I tO 1 BOOK 229 PACE 936 F-i ~ oaNyaR eutano E;1 ,r~ ,04 . ;mas'r~ I ~ I ~ r: t 7 I ° PAP' - U iFxiL'EI IIP,M. 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