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HomeMy WebLinkAboutB12-0029 CONSTRUCTION STAGING AGREEMENTCONSTRUCTION STAGING AGREEMENT THIS CONSTRUCTION STAGING AGREEMENT (this "Agreement ") is made as of the day of , 2012, by and between THE VAIL CORPORATION ("Vail Corp "), a Colorado corporation, and ARRABELLE AT VAIL SQUARE, LLC ( "AVS "), a Colorado limited liability company (together, "Vail "), acting together as one party, and LION SQUARE CONDOMINIUM ASSOCIATION, INC,, a Colorado nonprofit corporation (the "Association "). RECITALS A. The Association is the authorized agent and representative for the owners of Lion Square Condominiums situated in the Town of Vail (the "Town "% which Condominiums were established by that certain Condominium Declaration recorded in the real property records for Eagle County, Colorado (tine "Records ") on April 9, 1971, at Book 220, Page 176, and the related condominium map recorded on April 9, 1971, at Book 220, Page 177 (the real property governed by such Declaration and map being referred to herein as the "Condominium Property "). B. AVS is the owner of Lot 1, Vail Square (the "Arrabelle Site ") and Vail Corp is the owner of Lots 2 and 3, Lionshead Sixth Filing (together the "Ski Yard "), according to the recorded plats thereof, County of Eagle, State of Colorado (the Arrabelle Site and Ski Yard may sometimes be referred to hereinafter together as the "Adjacent Properties "). C. The Arrabelle Site is the location of a mixed -use real estate development project undertaken by AVS and commonly known as "Arrabelle at Vail Square" (the "Arrabelle Project "), while the Ski Yard is utilized for operations conducted thereon by Vail Corp (which is a corporate affiliate of AVS) in conjunction with Vail Corp's commercial skiing operations on Vail Mountain, other operations, functions and activities associated with those skiing operations, and other recreational, entertainment and commercial operations and events. D. The owners of the Condominium Property, acting through the Association, desire to expand and renovate the existing building improvements comprising part of the Condominium Property (the "LSL Renovation Project "). In connection therewith, the Association desires to employ portions of the Ski Yard for construction staging purposes. Vail has determined to grant rights to the Association for such purposes, such rights to be in accordance with and subject to all the terms and provisions of this Agreement. NOW, THEREFORE, in consideration of the above premises and the mutual covenants and agreements set forth herein, Vail and the Association covenant and agree as follows: 1. Term This Agreement, and the permission granted the Association hereunder for use of the Ski Yard, shall have a term which commences on April 23, 2012, and which expires on October 31, 2012 (the "Term "), unless sooner terminated as provided herein. 2. Grant (a) In connection with the LSL Renovation Project, and subject to the terms, covenants, conditions and provisions set forth in this Agreemenf, Vail hereby grants permission to the Association (i) to use the Staging Area (defined below) during the Term for construction - related functions associated with the LSL Renovation Project that are specifically enumerated on Exhibit A attached hereto (the "Construction Uses "), and (ii) to access the Staging Area through the drive areas within the Ski Yard by delivery and construction vehicles as reasonably necessary for enjoying the Construction Uses during the Term (the "Access Use "). The permitted Construction Uses and Access Use are sometimes referred to hereinafter collectively as the "Use Rights." (b) The Construction Uses shall be strictly limited to and contained wholly within those areas in the Ski Yard described as the construction staging area on Exhibit B attached hereto (the "Staging Area "). The specific location of the Staging Area on the ground will be subject to Vail's prior approval. The Staging Area will be enclosed by a construction fence conforming to the requirements of Exhibit A (the "Construction pence "). This permission to employ the Staging Area for the Construction Uses, and for the associated Access Use, does not and will not constitute any easement, leasehold or other possessory or property interest of any nature in and to the Ski Yard; in addition, no holdover in the Ski Yard after the expiration of the Term, or any sooner termination of this Agreement, will be permitted. Subject only to the Association's enjoyment of the Use Rights in conformity with this Agreement, Vail, for itself and its designees, reserves and retains all rights to use and enjoy the Adjacent Properties in any manner as it may determine. (c) As set forth above, the Association's use and enjoyment of the Ski Yard will be limited in area to the Staging Area, and to the specific Construction Uses permitted therein, as well as the Access Use. The Association at its sole cost and expense shall undertake such actions and work to protect and safeguard the Ski Yard and surrounding property and areas as are required and /or depicted on Exhibits A and B hereto, and otherwise in accordance with the other provisions of this Agreement. In any event the Use Rights do not include the parking of construction or other vehicles, except for parking within the Staging Area on a short -term basis as reasonably necessary to make deliveries of or retrieve construction materials or items which are located within the Staging Area pursuant to the permitted Construction Uses. (d) The Association's use of the Staging Area shall specifically exclude, without limitation, any storage, location or presence thereon of any fuel, petroleum products, or any other hazardous substances. For purposes of the foregoing, and the other provisions of this Agreement, "hazardous substances" shall mean and include any hazardous or toxic waste, substance or material which in any composition, concentration or quantity (i) violates any standards, guidelines, prohibitions, limitations or requirements arising under any Environmental Law (defined below), or (ii) is customarily remediated or recommended to be remediated, or prohibited or not recommended for use in real estate construction projects similar to the LSL Renovation Project, under prevailing standards in the real estate construction and /or environmental engineering industry. The term "Environmental Law" shall mean any federal, state or local law, rule or regulation pertaining or relating to protection of the environment or human health or safety, and specifically includes, without limitation, the Resource Conservation 2 and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901 et SeMc ., as amended, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et s_q., as amended, and the rules and regulations promulgated under either of them. (e) The Association specifically acknowledges and agrees, without limitation on the- foregoing, that the Use Rights do not and shall not include any rights to make any improvements or alterations to the Staging Area, excepting only the installation of the Construction Fence required under the terms of Exhibit A . 3. Use Limitations and Requirements In relation to the enjoyment of the Use Rights: (a) Before entering the Ski Yard in connection with the Use Rights, the Association shall secure and provide copies to Vail of all governmental licenses, permits and approvals issued by the Town of Vail (the "Town ") and any other applicable state, federal or local governmental agency or authority with jurisdiction (collectively "Governmental Authorities ") which are requisite to the construction of the LSL Renovation Project and also the exercise and enjoyment of the Use Rights on the Ski Yard, such licenses, permits and approvals to be in form and substance reasonably satisfactory to Vail. (b) The Association covenants that the Association, and all contractors, suppliers, materialmen and other parties engaged in the enjoyment of the Use Rights by, through or under the Association, including, without limitation, the Association's primary contractor J.L.Viele Construction, Inc. (collectively, the "Association Permittees"), shall comply with (i) the skier bridge access restrictions set forth on the Lionshead Gondola Summer Operations Schedule and Public Area Access Restrictions attached hereto as Exhibit C , including, without limitation, the requirement to provide a traffic guard at the skier bridge during certain hours, (ii) all applicable laws; ordinances, rules and regulations applicable to the enjoyment of the Use Rights, and the Ski Yard and surrounding areas that may be impacted by the Use Rights, whether imposed by or within the jurisdiction of the Town or any other Governmental Authority, (iii) any private covenants or restrictions that may be binding upon the Ski Yard, and (iv) any rules and regulations governing the exercise and enjoyment of the Use Rights that Vail, at its election but without obligation to do so, may impose in its ordinary business judgment in furtherance of safety concerns and the protection of persons and property interests. This right to impose rules and regulations shall be for the sole benefit of Vail, and shall not create any obligation or duty of Vail to the Association, the Association Permittees, or any other party to impose such rules and regulations, or to enforce rules and regulations so imposed, and any failure to impose or enforce any rules and regulations shall not in any way limit the obligations and duties of the Association under the other provisions hereof. Without limitation on the foregoing, the Association specifically agrees that it shall be responsible to institute and cause the Association Permittees to conform to the Association's own safety program, and that the Association shall be solely obligated and responsible for compliance with rules and regulations under the Occupational Safety and Health Act, and any similar federal, state or local laws, rules and regulations pertaining to workplace safety. (c) The Association shall be obligated and solely responsible for adequate and continuous control of erosion, dust, mud and gravel and other debris generated from or associated with the exercise of the Use Rights, including, without limitation, the provision of cover for any stockpiled fill material with plastic or visqueen or other suitable material to prevent fugitive dust, if required by Vail or the Town or any other Governmental Authority, such cover to be satisfactory to the requiring authority. The Association will be obligated to prevent storm water or sediment run -off resulting from any exercise of the Use Rights, including, without limitation, any drainage or run -off that is prohibited, requires permitting or is otherwise regulated under applicable laws. The Association will maintain the Staging Area, the balance of the Ski Yard and surrounding areas free from accumulation of waste materials, rubbish, excessive dust and dirt, and the like caused by or arising from any exercise of the Use Rights or other activities associated with the LSL Renovation Project. (d) The Association will not cause or suffer any damage or injury to any improvements, trees, vegetation, other landscaping, or other property or property interests within the Staging Area, the Ski Yard, or any surrounding or other areas. If any such damage or injury arises, the Association will immediately notify the Vail Representative (hereinafter defined) thereof. At the direction and to the satisfaction of the Vail Representative, the Association shall promptly replace, reconstruct, repair and otherwise take any action necessary to restore, repair, reconstruct or replace any improvements, landscaping or property items that are so damaged or injured. Any removal of trees and vegetation by, through or under the Association is hereby strictly prohibited without the prior written consent of the Vail Representative and the Town (which consent may be withheld in their sole discretion). (e) The Association shall not cause or suffer any material disruption of or interference with pedestrian or vehicular traffic on public streets, roads and rights -of -way surrounding or in the vicinity of the Ski Yard, or any work associated with the Arrabelle Project and /or the continuation of landscaping and other improvements within the Adjacent Properties. Vehicles associated with the exercise of the Use Rights shall not be parked on those rights -of- way. If required by the Vail Representative or the Town, the Association will have prepared and submit a traffic control plan, which will be subject to the review and approval of the Vail Representative and the Town (if Town review and approval is required). The Association will make such adjustments to the traffic control plan as the reviewing party(ies) may require, and will conform and cause the Association Permittees to conform with the approved traffic control plan. Requirements imposed pursuant to the traffic control plan may include, without limitation, regulation of and limitation upon hours for the entry of construction equipment and vehicles and deliveries or retrievals of construction materials or other items. In any case Vail may regulate the Access Use to prevent any material interference with parking uses on the Ski Yard (subject to making allowance for the ordinary operation of the permitted gates for the Construction Fence), and the Association agrees that in connection with the Access Use the Association shall not cause or suffer any such interference or any damage to vehicles of Vail or others accessing or parking upon the Ski Yard. Vail's retained rights within the Ski Yard will specifically include, without limitation, the authority to reconfigure the drives and parking within the Ski Yard, with corresponding route adjustments for the Access Use, provided there is no resulting material interference with the Access Use. (f) The Association shall be responsible for costs (up to a maximum amount of $1,425) incurred by Vail to remove snow fiom the Ski Yard, the skier bridge and drive areas providing access to Forest Road as may be reasonably necessary for enjoying the Use Rights 4 during the Term. Any sums owing pursuant to the foregoing shall be due and payable to Vail within ten (10) days after demand from time to time. (g) The Association will not cause or suffer any discharge, escape or release of any petroleum products or other material of any nature. If any such discharge, escape or release occurs, the Association shall be solely obligated and liable for clean -up and remediation of the same in accordance with all Environmental Laws, including, without limitation, applicable rules and regulations of the Town and any other Governmental Authority, and also in accordance with good prevailing practices in the construction and environmental engineering industries. The Association shall immediately notify the Vail Representative of the occurrence of any such discharge, escape or release. 4. Vacation The Association shall be obligated to vacate and cause all Association Permittees to vacate the Staging Area in its entirety no later than the last day of the Term, or any sooner date on which this Agreement may be terminated in accordance with the other provisions hereof. In connection with and as part of such vacation: (a) The Association shall remove or cause the removal of any and all materials, supplies, equipment and other property and items located on the Ski Yard by, through or under the Association in the exercise of the Use Rights (including, without limitation, any refuse dumpster and the Construction Fence). (b) The Association shall restore or cause the restoration of the affected portions of the Ski Yard and any affected surrounding areas to substantially the same condition in which they were found before the exercise of the. Use Rights, including, without limitation, policing of those areas as necessary to remove waste materials, rubbish, debris, or inordinate dirt or dust, and other actions as necessary or appropriate to leave those areas in a good, sightly condition that in any event is in compliance with all applicable Iaws, and otherwise discharging any and all obligations of the Association under paragraph 3(c) above. (c) As part of the necessary restorations under paragraph 4(b), and as and to the extent required by the Vail Representative, the Association, in accordance with paragraph 3(d) above, shall complete or cause the completion of any remaining replacements of trees, vegetation or other objects removed or damaged pursuant to the exercise of the Use Rights, and the Association shall also repair any paving or other improvements or structures which are damaged or altered in conjunction with the exercise of the Use Rights. For purposes of the other provisions of this Agreement, the vacation of the Staging Area shall not be regarded as completed until the Rill satisfaction and discharge of all of the foregoing requirements. 5. Liquidated Damages In the event the Association fails to cause timely vacation of the Staging Area in accordance with paragraph 4 above, the Association specifically agrees that the Association will pay Vail liquidated damages for such failure of timely vacation, since the actual damages that Vail will suffer as a result will be difficult to determine, and it shall be infeasible for Vail to otherwise obtain an adequate remedy. In light of the foregoing and the anticipated harm caused by such breach, the Association agrees to pay liquidated damages of $1,000 for each day following the obligatory vacation date until the Association has caused the completion of the vacation in accordance with the terms of paragraph 4, which liquidated damages are acknowledged by the Association as reasonable and as having been determined through the negotiations between the parties. Notwithstanding the foregoing, the Association specifically acknowledges and agrees that the inclusion of this paragraph 5 does not and shall not give or be construed to give the Association any permission or right to use the Staging Area after the expiration of the Term or any sooner termination of this Agreement, the Association having no right whatsoever to hold over in the Staging Area following the expiration of the Term, or any such sooner termination. In addition, the foregoing liquidated damages shall apply only to the Association's breach of its obligations hereunder for timely completion of the vacation; the liquidated damages shall not apply to or be construed to limit any damages or other sums that Vail may recover (a) for any breach by the Association of any specific obligations that are requisite to the completion of vacation (i.e., a failure to remove property items or to restore properly), or other provisions of this Agreement, or (b) pursuant to the Association's indemnity under paragraph 8 below or Vail's self -help remedy under paragraph 6(c) below. 6. Default If the Association fails to perform in accordance with the terms, covenants and conditions of this Agreement or is otherwise in breach or default of any of the terms, covenants and conditions of this Agreement (in any case a "default "), then Vail, after giving ten (10) days' prior written notice to the Association of the alleged default and upon the Association's failure to cure such default within said 10 -day period (provided that no such cure period shall be allowed for any failure of timely vacation under paragraph 4 above; for any breach of the Association's insurance obligations under paragraph 7 below; for any failure to secure a timely release of a lien under paragraph 9 below; or for any default that is not reasonably susceptible of cure or poses an imminent material risk to Vail's interests, as determined by Vail in its ordinary business judgment): (a) Vail, at its election and without obligation to do so, may take such action and expend such sums as Vail in its ordinary business judgment may deem necessary or appropriate to cure the subject default, in whole or in part, or to protect the interests of Vail. All sums, including attorneys' fees, incurred by Vail in connection with the consideration or exercise of this remedy shall be due and payable from the Association to Vail within ten (10) days after demand fiom time to time; (b) Vail may suspend the Use Rights, in whole or in pant, and subject to such conditions and qualifications as Vail may impose; and (c) Vail may terminate this Agreement, whereupon the permission granted to the Association to enter upon the Ski Yard in furtherance of the Use Rights and the Term shall also terminate, except as necessary to allow the Association to perform and discharge its obligations attendant to vacation in accordance with paragraph 4 above. Any default by the Association that is not cured within any applicable cure period established above may be enforced by any or all of the foregoing remedies in favor of Vail, and any other remedies available to Vail at law or equity or by statute (including an action for dispossession or ejectment in the case of any termination of this Agreement), and all such rights and remedies shall be cumulative with and non- exclusive of one another, and may be exercised concurrently or successively as Vail may elect. No exercise of any one remedy shall constitute or be construed as an election to the bar of any other remedy. In connection with any exercise or pursuit of its remedies under this Agreement, whether or not legal proceedings be actually commenced, Vail shall be entitled to recover from the Association any and all attorneys' fees and court costs that Vail may incur in connection therewith. Any damages or sums owing to Vail under this Agreement shall bear interest until paid at an annual rate of 18 %, which interest shall become part of the amount owing. 7. Insurance At all times during the tern of this Agreement, and thereafter until all obligations of the Association hereunder are fully discharged, the Association shall cagy or shall cause the Association Permittees to carry and maintain in full force and effect, at its sole cost and expense, the following insurance coverages and policies maintained in accordance with the following terms and otherwise on terms and with insurance companies satisfactory to Vail. The Association will provide Vail with a copy of any insurance carrier's notice of cancellation or notice of changes to policy conditions immediately upon receipt. Vail and its designees shall be named as additional insureds as their respective interests may appear on the policies listed in paragraphs 7(a), 7(d) and 7(e) below. The coverages under paragraphs 7(a), 7(d) and 7(e) shall provide that those coverages are primary without any right of contribution from any liability coverage maintained by Vail (and the Association hereby agrees that such coverages will thus be primaiy), and shall also provide that the insurance protection afforded Vail will not be impaired or limited by any negligence or misconduct of the Association or any other party. Coverages to be carried by the Association: (a) Commercial general liability insurance in an occurrence format with a single occurrence limit of not less than $1,000,000, with an aggregate annual limit of not less than $2,000,000, and complemented by umbrella coverage with available limits of $25,000,000, and including, without limitation, the following coverages: contractual liability (specifically encompassing the Association's indemnity and other obligations under this Agreement), personal injury, broad form property damage, independent contractors and premises operations. (b) The Association hereby represents that it will not use vehicles in connection with the Use Rights. (c) Workers' compensation insurance in accordance with the provisions of the Workers' Compensation Act of Colorado, C.R.S. § 8 -40 -101 et SeMc ., for all employees of the Association accessing the Staging Area or otherwise engaged in connection with the Use Rights. Coverages to be carried by Association Permittees (d) Commercial general liability insurance in an occurrence format with a single occurrence limit of not less than $2,000,000, with an aggregate annual limit of not less than $4,000,000, and including, without limitation, the following coverages: contractual liability, personal injury, broad form property damage, independent contractors and premises operations. (e) Automobile liability insurance on all vehicles used by, through or under any Association Permittees in connection with the Use Rights, in an amount of $2,000,000 combined 7 single limit per occurrence of bodily injury and property damage, and with an aggregate annual limit of not less than $4,000,000. (f) Workers' compensation insurance in accordance with the provisions of the Workers' Compensation Act of Colorado, C.R.S. § 8 -40 -101 et seM., for all employees of the Association Permittees accessing the Staging Area or otherwise engaged in connection with the Use Rights. To the extent any of the Association Permittees are sole proprietors, the Association shall cause those sole proprietors to maintain such coverage even though they may otherwise be exempted by law. The Association agrees to provide Vail with certificates of insurance evidencing the foregoing coverages upon the execution of this Agreement, and in'any case prior to any entry onto the Ski Yard or the Staging Area (with those certificates to expressly set forth the status of Vail and its designees as additional insureds, as required above). 8. Indemnity The Association shall defend,- indemnify and hold harmless Vail, its parent, subsidiary and affiliate corporations and companies, and their respective agents, officers, directors, shareholders, members, servants, employees and contractors of, from and against any and all liabilities, claims, liens, demands, actions, causes of action, losses and damages whatsoever (including, without limitation, those related to any damage or injury, including death, suffered by any person, or damage to any property of any kind, whether that of Vail or any other party), arising out of or in connection with any exercise of the Use Rights by or through the Association or Association Permittees, or the related entry into or presence or effect upon the Staging Area, the Ski Yard, or surrounding areas, including, without limitation, (a) those caused by or arising in connection with any action or course of conduct of the Association or any of the Association Permittees, or any person directly or indirectly employed or engaged by them, or any of them, associated with the Use Rights, including, without limitation, any actions or omissions constituting negligence or willful misconduct, (b) those arising out of or related to alleged contamination of the Staging Area, the Ski Yard, or surrounding land by any hazardous substance, including petroleum, or alleged injury or threat of injury to human health or safety or the environment, including those resulting in any alleged non - compliance with any Environmental Law, or any common law claim, including claims for personal injury or property damage, or any claim by any governmental or private party for remedial or removal costs, natural resource damages, property damages, damages for personal injuries, or other damages, and associated costs and expenses, or any claim for injunctive or equitable relief, or (c) those otherwise arising from or in connection with any breach or default by the Association of any of its obligations and duties hereunder, together with all costs and expenses incurred by Vail in connection with any of the foregoing matters, including court costs and attorneys' fees and any sums that may be incurred by Vail at its election in furtherance of settling any such matter. Any sums owing pursuant to the foregoing indemnity shall be due and payable to Vail within ten (10) days after demand from time to time. 9. Mechanics' Liens The Association shall not permit or suffer any mechanics' or other liens to attach to the Ski Yard or any portion thereof or interest therein by reason of any exercise of the Use Rights or any other conduct on or in relation to the Ski Yard arising by, through or under the Association or any Association Permittees. In the event a claim for any such lien is recorded against the Ski Yard, or any portion thereof or interest therein, the Association at its sole expense shall obtain the removal of such claim and its release of record within thirty (30) days after it is initially recorded. If such release if not timely secured, then at any time thereafter Vail, at its election and without obligation to do so, may secure the release of the lien claim by any means available, including bonding, settlement or otherwise, in which case the Association shall, within ten (10) days after demand fi•om time to time, reimburse Vail for Vail's costs and expenses incurred in securing the lien release, including all settlement amounts and attorneys' fees. The Association will also indemnify Vail against any such lien claims under and as part of paragraph 8 above. 10. Delegation/Assignment g_ The Association shall not assign any rights or interests under this Agreement nor delegate its duties under this Agreement to any extent without the prior written consent of Vail. In this regard, the Association shall be primarily responsible and liable for its obligations hereunder even when those obligations or any breaches thereof are attributable to any actions, omissions or course of conduct of any of the Association Permittees, including Association Permittees that may be independent contractors, notwithstanding any rule of law to the contrary. Any action, omission or course of conduct of any Association Permittee shall be deemed the action, omission or course of conduct of the Association for purposes of this Agreement. 11. Representatives Vail hereby appoints Jeff Babb, Resort Operations Director, to act in the capacity of the "Vail Representative" under the other provisions hereof that expressly provide for approvals, consents or determinations of the Vail Representative. From time to time Vail may change the designated party acting as the Vail Representative by giving the Association written notice thereof. 12. Notices (a) Any notice required or permitted under the terms of this Agreement shall be in writing, may be given by the parties hereto or such parties' respective legal counsel, and shall be deemed given and received (i) when hand delivered to the intended recipient, by whatever means; (ii) three (3) business days after the same is deposited in the United States mails, with adequate postage prepaid, and sent by registered or certified mail, with return receipt requested; or (iii) one (1) business day after the same is deposited with an overnight courier service of national or international reputation having a delivery area encompassing the address of the intended recipient, with the delivery charges prepaid. Any notice under clause (i), (ii) or (iii) above shall be delivered or mailed, as the case may be, to the appropriate address set forth below. If to Vail: The Vail Corporation c/o Vail Resorts Development Company Post Office Box 959 137 Benchmark Road Avon, Colorado 81620 Attention: Jeff Babb, Resort Operations Director Phone: (970) 754 -4008 With a copy to: The Vail Corporation c/o Vail Resorts Development Company 390 Interlocken Crescent Broomfield, Colorado 80021 Attention: Legal Department If to the Association: Lion Square Condominium Association, Inc. 660 West Lionshead Place Vail, Colorado 81657 Attention: Bill Anderson Phone: (970) 477 -4432 Either party may change its addresses for notices pursuant to a written notice which is given in accordance with the terms hereof. Any notice may be given on behalf of a party by its legal counsel. The foregoing notice requirements are subject to the provisions of paragraph 12(b) below. As used herein, the term "business day" shall mean any day other than a Saturday, a Sunday, or a legal holiday for which U.S. mail service is not provided. Whenever any date or the expiration of any period specified under this Agreement falls on a day other than a business day, then such date or period shall be deemed extended to the next succeeding business day thereafter. (b) In the event of any breach or default by the Association of its obligations under paragraphs 3(c) or 3(e) hereof, verbal notice, demand or communication of such breach or default by Vail (through the Vail Representative or otherwise) to the Association's representative, who shall be Bill Anderson as identified above, shall be deemed proper notice of such breach or default given for purposes of this Agreement, and in that regard such verbal notice may be given to Bill Anderson pursuant to his telephone number as set forth above. 13. Entire Agreement This Agreement, and the Exhibits that are referenced as attached hereto (the content and terms of which are incorporated herein by this reference), contain the entire agreement and understanding of the parties with respect to the subject matter hereof, and there are no representations, inducements, promises or agreements, oral or otherwise, that are binding with respect to such subject matter unless they are expressly embodied herein. Any and all prior or extrinsic discussions, agreements, proposals, negotiations and representations relating thereto are hereby deemed merged herein and superseded by the provisions of this Agreement. 14. , Severability In the event any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future laws, the legality, validity and enforceability of the remaining provisions in this Agreement shall not be affected thereby, and in lieu of the affected provision there shall be deemed added to tlus Agreement a substitute provision that is legal, valid and enforceable and that is as similar as possible in content to the affected provision. 10 It is generally intended by the parties that this Agreement and its separate provisions be enforceable to the fullest extent permitted by law. 15. Rules of Construction The headings which appear in this Agreement are for purposes of convenience and reference and are not in any sense to be construed as modifying the paragraphs in which they appear. Each party hereto acknowledges that it has had full and fair opportunity to review, make comment upon, and negotiate the terms and provisions of this Agreement, and if there arise any ambiguities in the provisions hereof or any other circumstances which necessitate judicial interpretation of such provisions, the parties mutually agree that the provisions shall not be construed against the drafting party, and waive any rule of law which would otherwise require interpretation or construction against the interests of the drafting party. References herein to the singular shall include the plural, and to the plural shall include the singular, and any reference to any one gender shall be deemed to include and be applicable to all genders. The titles of the paragraphs in this Agreement are for convenience of reference only and are not intended in any way to define, limit or prescribe the scope or intent of this Agreement. 16. Waivers and Amendments No provision of this Agreement may be waived to any extent unless and except to the extent the waiver is specifically set forth in a written instrument executed by the party to be bound thereby. This Agreement may be. amended or modified only by an instrument to that effect executed by the parties hereto, and only to the extent expressly set forth therein. 17. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 18. Survival Any and all terms, conditions and provisions of this Agreement which are not fully performed or discharged as of the expiration of the Term, or any other termination of this Agreement, shall survive such expiration or termination and remain in full force and effect thereafter, with the applicable obligor remaining liable to satisfy all applicable obligations and duties. 19. Time of the Essence Time shall be of the essence with respect to the performance and observance of the covenants, agreements, terms, conditions and provisions set forth herein. 20. No Recordation Neither this Agreement nor any memorandum or evidence hereof shall be recorded in the real property records for Eagle County, Colorado, without the prior xritten consent of Vail. 21. Attorneys' Fees In the event any legal proceeding arises out of the subject matter of this Agreement and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and the presiding court will be bound to make tlus award). The foregoing shall not be construed to limit rights of recovery established under other provisions of this Agreement. 11 22. Authority Vail hereby represents to the Association that Vail has taken or received all corporate action or authorization necessary for Vail to enter into this Agreement; that Vail's entry into this Agreement constitutes the duly authorized corporate action of Vail; and that this Agreement is binding on Vail. The Association represents to Vail that the Association has taken all actions and received all consents or authorizations from its board of directors (however denominated) and/or its members which are requisite to the Association's entry into this Agreement; that the Association's entry into this Agreement constitutes the duly authorized corporate and association action of the Association; and that this Agreement is binding on the Association. 23. Counterparts, Electronic Delivery This Agreement may be executed in any number of counterparts, any or all of which may contain the signatures of less than all the parties, and all of which when taken together shall be construed as but a single instrument and shall be binding on the parties as though originally executed on one originally executed document. In addition, any party to this Agreement may make legal delivery of its executed counterpart by electronic delivery of a copy of its signed counterpart. [Balance of page intentionally left blank] 12 IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement effective as of the date of this Agreement as set forth at the beginning hereof. VAIL CORP: THE VAIL CORPORATION, a Colorado corporation By:_ Name: Title: [Signature block follows on next page] 13 AVS: ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company By:_ Name: [Signature block follows on next page] 14 ASSOCIATION: LION SQUARE CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit corporation Name: CI J_ iH Title: PP, ezg [Signature block follows on next page] 15 Acknowledgment of Primary Contractor J.L. VIELE CONSTRUCTION, INC., a Colorado corporation f� J , By: David Viele, President 16 F,XHTRTT A to Construction Staging Agreement Construction Uses Permitted Uses and Related Requirements The Association will install a green construction fence around the perimeter of the Staging Area as shown on Exhibit B hereto, that fence to be in compliance with the criteria of and approved by the Design Review Board (DRB) of the Town of Vail, and with its specifications also to be given the prior written approval of Vail. This construction fence shall be installed in full conformity with such criteria and approvals. Gates for the construction fence will be strictly limited to the locations and dimensions shown on Exhibit B . No use of the Staging Area may be made prior to installation of the construction fence. The location of the construction fence may not encroach into or interfere with the use of the row of parking spaces located immediately to the south of the Staging Area. 2. Storage of masonry and stucco materials, subject to Vail's approval of a location therefor within the Staging Area. 3. One (1) trash dumpster with a capacity of 40 cubic yards, subject to Vail's prior written approval of a location therefor within the Staging Area. In accordance with Town of Vail Municipal Code § 5 -9 -5, the Association shall maintain a container for the LSL Renovation Project on the Condominium Property that is designated for disposal of refuse edible by wildlife; will not permit the dumpster within the Staging Area to be used for that purpose; and in any case shall bear all liabilities for any failure to comply with § 5 -9 -5. A -1 EXHIBIT B to Construction Staging Agreement Staging Area Site Plan (See the attached) { rr t 1 > ¢ ,S c 41 k ;> N f l 1 uori A ej P , I It rZI _ n", \ L e w I N U a C t� o d a 6t I LO v _ uIum' 3 �� .0 > It c TR ACT .r r.w MI j . 11 Il i L ' ! �l 11111 it,,�4�4 Q 6o • AM 1Y KA t�I1••• ®E•ll`8 �+I f EXHIBIT C to Construction Staging Agreement UONSHEAD GONDOLA SUMMER OPERATIONS SCHEDULE AND PUBLIC AREA ACCESS RESTRICTIONS 2012 DATES & TIMES: Weekend Operations (Friday-Sunday) 1 OAM — 6PM 6/1-6/3 6/8-6/10 NO ACCESS ACROSS THE SKIER BRIDGE AFTER 9:30 AM OR BEFORE 6:30 PM Daily 0perations Sun -Wed I OAM — 6PM Thu -Sat I OAM — 9PM Friday, 6/15 — Monday, 9/3 NO ACCESS ACROSS THE SKIER BRIDGE AFTER 9:30 AM OR BEFORE 6:30 PM, Sunday — Wednesday. NO ACCESS ACROSS THE SKIER BRIDGE AFTER 9:30 AM OR BEFORE 9:30 PM, Thursday - Saturday. Weekend Operations (Frida. - Sundayl I OAM — 6PM 9/7-9/9 9114-9/16 9/21-9/23 NO ACCESS ACROSS THE SKIER BRIDGE AFTER 9:30 AM OR BEFORE 6:30 PM. Pre and Post Season 4/16-5/31 9/24-10/31 NO RESTICTION ON ACCESS AS LONG AS AREA CONDITIONS ARE ACCEPTABLE, i.e. AREA IS DRY *From 7:00 AM to 9:30 AM on all operation days Contractors should provide a "traffic guard" at the Skier Bridge