HomeMy WebLinkAboutMemorandum of Understanding0070 B " Benchmark oad GARFIELD & HECHT, P.C.
Post Office Box 5450
Avon, Colorado 81620 ATTORNEYS AT LAW
Telephone (970) 949 -0707
Since 1975
Facsimile (970) 949 -1810
www.garfieldhecht.com
October 28, 2011
VIA HAND DELIVERY
Town of Vail
Community Development Department
Attn: Bill Gibson
75 S. Frontage Rd.
Vail, Colorado 81657
RE: Lion Square Condominiums Renovation Project
Dear Bill:
In follow -up to our letter dated August 19 attached hereto please find the Memorandum of Understanding
negotiated and approved by each of The Vail Corporation and its affiliates (collectively, "TVC "), as owners of the
land adjacent to the renovation property (the "Ski Yard ") and Lion Square Condominium Association, Inc.
( "LSL "). We now request Town of Vail review, comments and approval of the attached document in connection
with the proposed renovation project for LSL since certain building elements are proposed for location within the
10' setback established by the Town.
If you have any questions or concerns regarding the attached please contact myself or Gerry Arnold, 754 -2658.
Otherwise, if the attached meets with the Town's approval kindly forward the executed version back to my
attention at your earliest convenience. Once acceptable to the Town, each of TVC and LSL will execute the
Memorandum and record it in the public records, providing a recorded version to the Town.
Regards,
GARFIELD & HECHT, P.C.
B
Kursten Canada
cc: Lion Square Condominium Association/Attn: Board Members
Lion Square Condominium Association/Attn: Bill Anderson
Vail Resorts. /Attu: Gerry Arnold by email
754420vl
OCT 2w 20»
TOWN Orr VAIL
Aspen • Avon • Basalt • Glenwood Springs • Rifle ® Printed on recycled paper
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ( "MOU "), dated as of , 2011, is
made by and among LION SQUARE CONDOMINIUM ASSOCIATION, INC., a Colorado
nonprofit corporation ( "LSL "), ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited
liability company, and THE VAIL CORPORATION, a Colorado corporation (collectively
"Vail "), and TOWN OF VAIL, a municipal corporation duly organized and existing under and
by virtue of the laws of the State of Colorado ( "Town of Vail "), regarding certain understandings
among the parties pertaining to the Restricted Area (the "Restricted Area ") shown on Exhibit A
to this MOU ( " Exhibit A '), and addresses, in part, those provision of Sections 5.11.5 and 5.12.5,
Lionshead Redevelopment Master Plan dated December 15, 1998, as specifically amended by
that certain Resolution No. 17, Series of 2006, Town of Vail (the "Master Plan"). The Restricted
Area includes a portion of the 10 foot setback from the east property line of and within the LSL
property (i.e., the condominium property governed by LSL) as set forth in the Master Plan (the
"10 Foot Setback ") and other portions of the LSL property, as depicted by cross hatching on
Exhibit B ( " Exhibit B ") attached hereto (the "LSL Area "), and a portion of the ski yard on Vail's
property as depicted by cross hatching on Exhibit C ( " Exhibit C ") attached hereto (the "VA
Area "). For purposes of this MOU, the VA Area shall mean only those portions of land owned
by Vail which are cross hatched on Exhibit C . All other land owned by Vail and not cross
hatched on Exhibit C (the "Remaining VA Land ") is not subject to this MOU, and Vail shall
have unfettered, unrestricted and complete use of the Remaining VA Land in accordance with
applicable zoning.
1. Encroachments into the 10 Foot Setback LSL has authorized a renovation
plan of its condominium building abutting the western edge of the Restricted Area. In
accordance with the Master Plan, the renovation will add encroachments into the 10 Foot
Setback. Vail and Town of Vail agree that the renovated LSL building may encroach into the
10 Foot Setback but only to the extent shown on Exhibit A .
(a) LSL acknowledges that (i) Vail will be entitled to use the VA Area
for all uses allowed in the VA Area, as more particularly set forth in Section 3 below, and
(ii) any encroachment of the LSL building into the 10 Foot Setback may have negative
impacts to LSL's residents and guests, such as reduced privacy, noise and obstruction of
views, due to the close proximity of activities customary to the use and operation of the VA
Area, including but not limited to recreational activities, special events, snow making,
snow grooming and maintenance.
(b) Vail acknowledges and consents to any encroachment of the LSL
building into the 10 Foot Setback that is in conformity with Exhibit A hereto and further
acknowledges that such encroachment may adversely affect existing below grade
improvements and may reduce the potential future development of the VA Area.
2. Restrictions LSL, with respect to the LSL Area, and Vail, with respect to the
VA Area, agree not to construct any vertical, above -grade building on or within the Restricted
Area, provided, however, that LSL, as owner of the LSL Area, and Vail, as owner of the VA
Area, shall be permitted, on their respective land and for their respective benefit, to
construct /install underground improvements and above -grade non - habitable improvements,
including but not limited to balconies, roof overhangs, footers, utilities and landscaping elements
within the Restricted Area, such permitted landscaping elements to include, but not be limited to,
retaining walls, hardscape elements, and planting elements, subject to approval by the Town of
Vail (collectively, the "Permitted Elements "), it being understood and agreed that LSL shall not
construct/install any Permitted Elements on the VA Area, and Vail shall not construct/install any
Permitted Elements on the LSL Area, unless agreed to in writing by the parties pursuant to
separate instrument.
3. Vail's Rights Notwithstanding anything in this MOU, the Master Plan or
Exhibit A , (i) LSL shall have no rights of any kind or nature whatsoever in and to the VA Area,
including but not limited to using the VA Area (A) for the Permitted Elements, landscaping, or
any other improvement (except that those certain encroachments set forth in documents recorded
at Reception Nos. 514849, 917762, and 852684, as amended by the document recorded at
Reception No. 917760, in the records of the Eagle County, Colorado, Clerk and Recorder,
hereinafter called the "Existing Encroachments," and the landscape plan attached hereto as
Exhibit D , hereinafter called the "Approved Landscaping," are permitted (in the case of the
Approved Landscaping, subject, however, to the terms of the "Landscaping Encroachment
Agreement" referenced below)), or (B) except as specifically provided in this MOU, for
compliance with Town of Vail Municipal Code, fire code and emergency egress requirements or
any other requirements imposed by the Town of Vail or any other entity having jurisdiction over
renovation, improvement or use of the LSL property and matters related thereto (the "LSL
Requirements and Compliance "), the LSL Requirements and Compliance to be addressed and
satisfied solely and completely on LSL property; and (ii) subject to the provisions of Section 2
above, to the Existing Encroachments, and to the Approved Landscaping undertaken in
accordance with the Landscaping Encroachment Agreement, all rights in and to the VA Area,
including, without limitation, all rights to lawful uses, are fully retained by Vail. LSL's conduct
of work in relation to the Approved Landscaping to be installed in the VA Area, and its entry
into Vail -owned properties for purposes thereof, will be in accordance with and subject to the
terms of a certain Landscaping Encroachment Agreement made of even date herewith between
Vail and LSL. Moreover, nothing in this MOU shall prohibit, preclude or negate (i) the plans
approved by the Town of that certain project commonly known as Arrabelle at Vail Square
located on Lot 1, Lionshead Sixth Filing ("Arrabelle"), and (ii) the construction and/or
operations of the uses and activities associated with Arrabelle and the VA Area. Additionally,
except as specifically provided in this MOU and said Landscaping Encroachment Agreement,
LSL shall not install landscaping at any time in the LSL Area or take any other action which
would cause any of the LSL Requirements and Compliance to become attributable to the VA
Area, and the LSL Requirements and Compliance shall not be or become attributable to or limit
or encumber the VA Area or any Remaining VA Land to any extent
4. Seasonal Operations and Activities in the VA Area Notwithstanding anything
in this MOU:
(a) During the ski season (the "Ski Season "), Vail, or any entity who
enters into arrangements with Vail, including, but not limited to, Town of Vail (the "Other
Entities "), may conduct in the VA Area all operations and activities necessary or desirable
to Vail's ski area business or for appropriate events during the Ski Season, as determined in
Vail's judgment, including, but not limited to, any skiing or ski related activities, and Vail
hereby reserves for itself and Other Entities all rights to such operations and activities,
subject to the following:
(i) During a "Special Event" in which tents or other temporary
facilities ( "Tents ") are to be used, Vail or the Other Entity, as appropriate, will notify LSL,
specifically the LSL Property Manager, by telephone at (970) 477 -4432, of the dates on which
the Special Event will occur.
(ii) Vail or the Other Entity, as appropriate, will provide the
location/placement of Tents to LSL and will cooperate with LSL in such placement of Tents but
only to the extent necessary to provide for appropriate fire code egress compliance and
pedestrian access where the Tents are located within the VA Area and abut the LSL Area.
(b) During the spring, summer or fall seasons (the "Non -Ski Seasons "),
Vail or any Other Entity who enters into arrangements with Vail may conduct all
operations and activities necessary or desirable for appropriate events for the Non -Ski
Seasons in the VA Area, as determined in Vail's ordinary business judgment, and Vail
hereby reserves for itself and Other Entities all rights to such operations and activities,
subject to the following:
(i) During a "Special Event" in which Tents are to be used, Vail or the
Other Entity, as appropriate, will notify LSL, specifically the LSL Property Manager, by
telephone at (970) 477 -4432, of the dates on which the Special Event will occur.
(ii) Vail or the Other Entity, as appropriate, will provide the
location/placement of Tents to LSL and will cooperate with LSL in such placement of Tents but
only to the extent necessary to provide for appropriate fire code egress compliance and
pedestrian access where the Tents are located within the VA Area and abut the LSL Area.
(c) LSL, and any of its constituent members, renters or users of the units
within LSL, will notify Vail, and not the Town of Vail, by contacting Vail's Director of
Base Mountain Operations, currently (970) 754 -4008, regarding Vail- sponsored events
during Ski Season and Non -Ski Seasons with any questions or issues that LSL may have
with respect to such events held in the VA Area; for such events sponsored by Town of
Vail, such contact shall be with of the Town of Vail (and not
with Vail), currently (970) LSL shall be solely responsible for the
implementation and enforcement of the provisions of this Section 4(c) and shall use its
good faith efforts to assure that the Lion Square Phase IIAII and Lion Square North
homeowner associations advise their respective members, renters and users of the units of
such projects cause adherence to the provisions of this Section 4(c). The foregoing will not
be construed to establish or create any legal duties of Vail or Town of Vail in relation to
such events that they do not otherwise have. In no event will Vail have any liability to
LSL, its members, renters and users, or any other party for any actions, omissions or
conduct of any Other Entity or its agents, contractors, licensees and invitees. The
foregoing shall not be construed to create any obligation of Vail to make any binding
accommodations with any Other Entity for the conduct of any event.
5. Snow Grooming Consistent with historical snow - grooming and as a courtesy to
LSL, when Vail grooms the VA Area, Vail will use its good faith efforts to groom a portion of
the LSL land adjacent to the VA Area (the "LSL Grooming Area "), at no cost or expense to LSL,
provided, however, that LSL acknowledges and agrees, as follows:
(a) Because LSL proposes to extend its building toward the VA Area,
Vail will not have the space to taper the snow at or close to the LSL building, and the snow
will possibly and probably be higher than the patios and/or doors /entrances /egress areas
( "Egress Areas") on the east side of the LSL building abutting the VA Area (the "Snow
Level "). In addition, the physical limitations imposed by the Approved Landscaping and
LSL building renovation may also cause Vail to curtail or limit the scope of the grooming,
as determined in Vail's ordinary business judgment. Notwithstanding the foregoing, the
intent of the Parties is to have Vail continue its historical snow - grooming, subject to the
provisions of this subparagraph (a), as a courtesy to LSL.
(b) LSL will provide appropriate interface between the Egress Areas'
doors and the Snow Level.
(c) (i) Vail will not be responsible for any damage to landscaping,
hardscaping, utilities or improvements within or adjacent to the LSL Grooming Area,
including but not limited to, shrubs, trees, turf, or patios, or the irrigation sprinkler system
and facilities installed as part of the Approved Landscaping, because of its grooming
activities consistent with historical practice on the LSL land but subject to the provisions of
subparagraph (a) above, and LSL hereby releases Vail and will hold Vail harmless from
and indemnify Vail against any liability associated with such damage_except such damage
that is intentionally or maliciously inflicted by Vail. All costs and liabilities associated
with such damage not otherwise intentionally or maliciously inflicted by Vail shall be at
the expense of LSL.
(ii) Because Vail grooms the LSL Grooming Area and the Ski Yard together and
there is no discernable property boundary, the general skiing population may not be aware that
the LSL land and the Ski Yard are two separate properties, and Vail will not be liable to control
skiers who may cross from the Ski Yard onto LSL land. LSL, if LSL so desires and at LSL's
own cost and expense, will be responsible for controlling the property line between the Ski Yard
and LSL land to prevent and manage the general population of skiers in not crossing the property
line into LSL land from the Ski Yard, including enforcement thereof.
6. Effect of Landscaping Encroachment Agreement It is mutually intended that
the Landscaping Encroachment Agreement be construed as cumulative with the provisions of the
MOU. However, in the event any unresolvable conflict or inconsistency arises between the
provisions of this MOU and the provisions of the Landscaping Encroachment Agreement, the
provisions of the Landscaping Encroachment Agreement shall be controlling.
7. Recording; Successors and Assigns. This MOU will be recorded in the records of
the Eagle County, Colorado, Clerk and Recorder and shall run with the land and title to the land.
This MOU shall inure to and be binding upon the successors and assigns of the parties to this
MOU.
8. Miscellaneous.
(a) This MOU (and any attached exhibits) contains the entire agreement and
understanding of the parties with respect to the subject matter hereof.
(b) No amendment, alteration, modification of or addition to this MOU, and
no waiver of any rights or obligations hereunder, shall be valid or binding unless
expressed in writing and signed by the party or parties to be bound thereby.
(c) This MOU shall be governed by and interpreted in accordance with the
laws of the State of Colorado.
(d) Any notices to be given hereunder shall be deemed to be given three (3)
days after mailing, if mailed, or upon delivery to the applicable premises if hand
delivered. Notices shall be delivered or mailed to the parties at their respective addresses
listed below or at such other address as shall be specified in writing by a party in
accordance with these notice provisions, as follows (provided that any addresses
specified must be within Vail or Avon, Colorado, and must include a street address, and
neither party may establish more than two addresses at any one time):
IF TO VAIL:
c/o Vail Resorts Development Company
Post Office Box 959
137 Benchmark Road
Avon, Colorado 81620
Attn: Sr. Vice President
IF TO LSL:
Lion Square Condominium Association, Inc.
Attn: General Manager
660 West Lionshead Place
Vail, Colorado 81657
(e) Time is of the essence with respect to the performance of each of the
covenants and agreements herein set forth.
(f) Vail hereby represents to the LSL that Vail has taken or received all
corporate and company action or authorization necessary for Vail to enter into this MOU;
that Vail's entry into this MOU constitutes the duly authorized corporate and company
action of Vail; and that this MOU is binding on Vail. LSL in turn represents to Vail that
LSL has taken all actions and received all consents or authorizations from its board of
directors (however denominated) and/or its members (i.e., the unit owners within the
condominiums) which are requisite to LSL's entry into this MOU; that LSL's entry into
this MOU constitutes the duly authorized corporate and association action of LSL; and
that this MOU is binding on LSL. LSL also acknowledges and covenants that it has
made this MOU on behalf of its members and that it is binding on its members as well as
LSL.
(g) As used herein, "business day" shall mean any day other than a Saturday,
Sunday or legal holiday for which U.S. Mail service is not provided.
(h) This MOU may be executed in counterparts, each of which shall constitute
an original, and which together shall constitute one and the same agreement. Any party
hereto may confirm legal delivery of its counterpart by facsimile or e-mail transmission
of its signed and acknowledged signature page.
[Balance of page intentionally left blank]
Executed to be made effective as of the date set forth above.
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
LSL
LION SQUARE CONDOMINIUM
ASSOCIATION, a Colorado nonprofit
corporation
By:_
Name:
Title:
The foregoing instrument was acknowledged before me this day of
, 20_, by as of Lion
Square Condominium Association, Inc., a Colorado nonprofit corporation.
My commission expires:
[SEAL]
Notary Public
[Signature Blocks Continue on Neat Page]
VAIL
ARRABELLE AT VAIL SQUARE, LLC, a
Colorado limited liability company
By: Vail Resorts Development Company, a
Colorado corporation, as Managing Member
By:
Name:
Title:
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _
, 2o_, by as
Resorts Development Company, a Colorado corporation, as Managing
ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company.
My commission expires:
[ SEAL]
Notary Public
day of
of Vail
Member of
[Signature Blocks Continue on Next Page]
THE VAIL CORPORATION, a Colorado
corporation
By:_
Name:
Title:
STATE OF COLORADO
COUNTY OF EAGLE
ss.
The foregoing instrument was
, 20_, by
Vail Corporation, a Colorado corporation.
My commission expires:
[SEAL]
Notary Public
acknowledged before me this day of
as of The
[Signature Blocks Continue on Next Page]
Town of Vail joins in this MOU for the express and sole purpose of consenting to the
adjustment of the Setback within the LSL land and the Ski Yard which adjustment is
described and depicted in this MOU as "Restricted Area ".
TOWN OF VAIL
TOWN OF VAIL, a municipal corporation duly
organized and existing under and by virtue of
the laws of the State of Colorado
Un
Stanley B. Zemler, Town Manager
ATTEST
Lorelei Donaldson, Town Clerk
STATE OF COLORADO
COUNTY OF
ss.
The foregoing instrument was acknowledged before me this day of
, 2011, by Stanley B. Zemler as Town Manager of the Town of Vail, a
municipal corporation duly organized and existing under and by virtue of the laws of the State of
Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
726859v1
EXHIBIT A
Depiction of Restricted Area
(See the attached)
A -1
T
I Q v A
Q z
W
Z G
I w h
m
W
z
I = F =
I g o m'oe
117
o z v 3 _
I z o Q f
ITT
05 z
0
I U7
0 I
Q I
/w
� I
w LU
U "'
LLJ
w
N
M I �
o 0
O
O
-_
I
Q
J
J
O
O
Q
I
F
a �
o.
j
W
°
o� 3� I oW
Q:� Q zx �
Cpu
OW
W
Z
C��
O
�uo
J O
�{
v W
Q
Ouo
z
O
3"
Opu ze
Z Q
0 O
J J
D
m
Luc OZ
I V C7
W ?
3°
I Zm
\ z a
Y
i
n
EXHIBIT B
Depiction of LSL Area
(See the attached)
IM
I f
rn
W O �
IS
I
o o z
c — o
rn �
p z
z
i
� �
� v
v
s
ti
LL-Lil
cm I
I
mz p
p
O � �
Z
I
I I
I m
m0 pAOA I
I
C Z
r
A p
pn S
r
0 �
n
O� m
m� n
n A
SC.J m
m0 p
n2o
I On t
Za N
N G
G� /
200
tiz
/ D
o3N11 A183d08d l3 m
m O
6 m
o p
p
O
�-
r i
i O
r p
p
� C
CJ z
z i
N r
r �
�
N m
r �
i
�
fll
70 f
/ D
D I
D
I n
n
I �
�' r
�
rn
I I
I
i
I
IS
I
o o z
c — o
rn �
p z
z
i
EXHIBIT C
Depiction of VA Area
(See the attached)
C -1
Q
{ I W a
N p
> m
m
n —
m
I I
I
I
D C
n 0
C 0 I
tg= o a
ol
4 'y I
a n z I
- m -
� m I
V � Q
z
i
�
�
v
i
0
I
m
I
z
of
n
z
n
mp °n�
xm�
�m
on
m
on
p0
D D
Df
no
rn
>
as p
pd01
I Fop >�
0
_
_
O
O
-
O
Q
{ I W a
N p
> m
m
n —
m
I I
I
I
D C
n 0
C 0 I
tg= o a
ol
4 'y I
a n z I
- m -
� m I
V � Q
z
i
EXHIBIT D
Approved Landscaping — Landscaping Plan
(See the attached)
D -1
40
� � � ;tea
- tttt
7
CL
I II J I.
CO
z
m