HomeMy WebLinkAboutB12-0029 MEMORANDUM OF UNDERSTANDING WITH VAIL CORPORTATION AND ARRABELLE AT VAIL SQUARE MEMORANDUM OF UND�RSTAI�IDING
This Memorandum of Understanding ("MOU"), dated as of. , 2012, is
made by and among LION SQUA12� CONDQMINIUM ASSOCIATION, INC., a CoIorado
nonprofit corporatian ("LSL"), ARRAB�LT�� AT VAIL SQUAI2E, LLC, a CoIo�ado Iimited
liability company, and TH� VAIL CORPORATIQN, a Colarado corparation (collectively
"Vail"}, regarding certain understandings among the pai�ies pertaining to the Restricted Area
(the "Restricted Area") shown on Exlubit 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 Resalution No. 17, �eries of 2006,
Town of Vail (the"Master Plan"). The Resfricted Area includes a portion of the 10 foot setback
from the east prapei�ty line of and within the LSL property (i.e., #he condominiurn 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 Exl�ibit B ("Exhibit B") attached he�•eto (the
"L.SL Area"}, and a portion of the ski yard on Vaii's praperty as depicted by cross hatching on
Exhibit C ("Exhibi#C"} attached hereto (the "VA Area"). Far puiposes of this M�U, 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 "Rert�aining
VA Land")is not subject to this MOU, and Vail shali have unfettered, unreshicted and complete
l�se of the Remaining VA Land in accordance with applicahle zoning.
1. ��icroachments into the 1Q Faot Setback, LSL has authorized a renovation
plan of its condominium building abutting the western edge of the Restricted Area. In
accordance with the Master P1an, the renovation will add encraachments into the 10 Foot
� Setback. Vail agrees that the renovated LSL building may encroach into the 14 Foot Setback but
only ta the extent shown on Exhibit A.
(a) LSL acknawledges that (i) Vail wili t�e en#itled to use the VA Area
. far all itses allowed in the VA Area, as more pai�ticularly set forth in Sectian 3 below, and
(ii) any encroachment of the LSL huilding into the 10 Foat Setback may have negative
impacts to LSL's residents and guests, suclt as reduced privacy, noise and obstructian of
views, due ta the close proximity of acfivi#ies c�as#omary to tlie use and aperation of the VA
Area, including but not limited to recreational activities, special events, snow making,
snow grooming and maintenance.
(b) Vail acknawledges and consents fo any encroachment of the LSL
huilding into the 10 Foot Setback that is in canformity with Exhibit A hereto and further
acknowledges that such encroachment may adversely affect existing below grade
improvements and may redt�ce the poten#ial 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#he LSL Area, and Vail, as awner of the VA
Area, shall be peimitted, on theu respective Iand and for their respective benefit, to
consnuct/install undergraund improvements and above-grade non-liabitable improvemen#s,
including bu#not limited ta balconies, roof averhangs, footeFS,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 sI2all not
consti-�ct/install any Permitted Elements an the VA Area, and Vail shaIl not constructJinstall any
Permitted Eiements on the LSL Area, unless agreed ta in writing by the parties pursuant to
separate instrument. °
3. Vaii's Rishts. Notwiths#�nding anything in fhis MOU, the Master Plan or
Exhibit A, (i) LSL shall have no righis of auy kind or nature wha#soever in and to the VA Area,
including but not limited to using the VA Area(A}for the Permitted Eiements, landscaping, or
any other in2provement(except tha�those certain encroachments set forth in dacuments recorded
at Reception Nos. 514849, 917762, and 852684, as amended by fhe document recorded at
Reception Na. 917'760, in the records of the Eagle County, Colorada, CIerk and Recorder,
hereinafter called the "Existing Encroaciunents," and the landscape plan�attached hereto as
Exhibit D, hereinafter called the "Approved Landscaping," are permitted (in the case of the
Approved Landscapin�, subjec#, however, to the terrr}s of the "Landscaping Encroachment
Agreement" refei�enced below)), ar (B} except as specifically provided in this MOU, for
compliance with Town of Vail Municipal Code,fue code and emergency egress requirements or
any other requirements imposed by the Town of Vail or any other entity having jur�isdiction over
renavatian, impravement ar use of the LSL praperty and matters reIated thereto (the "LSL
Requirements and Compliance"), the LSL Requirements and Compliance to be addressed and
satisfed solely and completely on LSL property; and (ii) subject to the provisians af Section 2
above, ta the Existing Encroachtnents, and to the Approved Landscaping undertaken in
accordance with tI�e Landscaping Encroachment Agreement, all rights in and to fhe VA Area,
including, without limitation, all rights to Iawful uses, are fiilly retained by Vait. LSL's conduct
of work in relafian ta the Approved Landscaping to be instailed in the VA Area, and its ent�y
into Vail-owned properties for purposes thereof, will be in accordance wit�i and subject to the
terms of a certain Landscaping Encroachment Agreement matle of even date herewith between
Vai� and LSL. Moreover, nothing in this MOU shall prahibit, preclude ar negate (i} the plans
approved by the Town of Vail of#hat certain project commonly knawn as Arrabelle at Vail
Square located on Lot I, Lionshead Sixth Filing ("Arrabelle"), and (ii} the construction andlor
operations of the uses and activities associated with Arrabelie and the VA Area. Additionally,
except as.specificatly provided in this MOU and said Landscaping Eneroachment Agreement,
LSL shall not install landscaping at any tiine in the LSL Area vr take any other actian which
would cause any of the LSL Requirements and Campliance to became attributabie to the VA
Area, and the LSL Requirements and Compliance shatl not Ue ar become attributable to or limit
or encumber tlie VA Area or any Remaining VA Land to any extent
4. Seasonal Onei•atioi�s and Activi#ies in #be VA Area. Notwithstanciing anything
in this MOU:
{a) During tlie ski season (the "Ski Season"), Vail, or any entity who
enters into ai�t�angements with Vail, including, but not limited to, Town of Vail (the"Other
Entities"), may conduet in the VA Area alI operations and activities necessary or desirable
� to Vail's ski area husiness or for appropriate events duz•ing the Ski Season, as determined in
Vail's judgment, including, bu#not Iimited to, any skiing or ski related activities, and Vail
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hereby reseives for itself and Other Entifies all rights to such operatians 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 Entiry, as appropriate, will noti€y LSL,
specificaily the LSL Propei-ty Manager, by teIephone at (970) 477-4432, of ttie dates on �vhich
the Special Event will occur.
, (ii) Vaii ar the Other Entity, as appropriate, will provide the
location/placement of Tents to LSL and will cooperate�vith LSL in such placement of Tents but
only to the exten#_ necess�y to provide for appropriate fire code egress compliance and
pedeshYan access where the Tenfs are located within the VA Area and abut the LSL Area.
(b) During the spring, summer or fatI seasons (tl�e "Nan-Ski Seasons"},
Vail o�• any Other Entity wlio enters into arrangements wi#h Vail may conduct all
operatians and activities necessary or desuable for appropriate events for the Non-Ski
Seasons in the VA Area, as determined in Vail's ordinary business judgment, and Vail
hereby reseives for itself and Other Entities all rigt�ts to such operations and activities,
subject to the foIlowing:
(i) Dtuing a"Special Event"in whioh Tents are to be used,Vail ar the
Other Entity, as �ppropriate, will notify LSL, speci�catiy the LSL Propei�ty Manager, by
telephone at{970)477-4432, of the dates on tivhich the Special Event will occur.
{ii) Vail or the �Other Entity, as apprapriate, will provide the
locationlplacement af Tents to LSL and will cooperate with LSL in such placement of Tents but
anly to the extent necessary to pravide for appropriate fire code egress compliance and
pedestiian access where the Tents are Iocated within the VA Area and abut the LSL Area.
(c) LSL, and any of its constituent mennbers, renters or users of the t�nits
withln LSL, will natify Vai1, and not the Tativn af Vail, by contacting Vail's Director of
Base Mountain Operations, currently (970} 754-4008 , regarding Vait-sponsored events
during Ski Season and Non-Ski Seasons with any questions or issues that LSL may have
with respect fo such events held in the VA Area; far such events spansored by Tawn af '
Vail, such contact shall be with of the Town of Vail (and not
with Vail), cui�ently (970) , LSL shall be solely responsible for the
implementatian and enforcenient of fhe provisians of this Section 4(c} and sliall ase its
good faith efforts to assure that the Lion Square Fhase II/III and Lion Square North
homeowner associations advise their respective members, rentei•s and users of the units of
s�ich projects cause adherence to the provisions of this Secfion 4(c}, The foregaing wiIl not
be construed ta establish or create any legal duties of Vail or Town of Vail in relation to
such even#s tha# they do not ofhenvise have. In no event will Vail have any liability to
LSL, its members, renters and users, or any other party for any actions, omissians o3•
conduct of any Other Entity or its agents, contractors, licensees and invitees. The
foregoing shall n�t be construed to create any obligation of Vail to make any binding
accommodations with any Other Entity for the canduct of any event.
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5. Sno�v Groo�uin�, Consistent with historical snow-groorrting and as a courtesy to
LSL, when Vail grooms the VA Area, Vail will use its good faith effarts to groom a portian of
the LSL]and adjacent fo the VA Area(the"LSL Grooming Area"),at na cos�or expense to LSL,
provided, however,that LSL acknowledges and agrees,as follows:
{a) Because LSL proposes to extend its building to�va.rd 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/enhances/egress areas
("Egress .Areas") on the east side of the LSL building abu#ting the VA Area (the "Snaw
Level"}, In addition, the physical limitations imposed by the Approved Landscaping and
LSL building renovatian may also cause Vail to cui�tail ar limit the scope of the graoming,
as determined in Vail's ordinary business judgment. Notwithstanding the foregoing, the
intent of the Pai�ties is to have Vai1 continue its historical snow-grooming, subject to the
provisions of this subparagraph(a),as a cotu-tesy to LSL.
(b) LSL will provide appropi7ate interface befween the Egress Areas'
doors and the Sno�v Level.
(c} (i} VaiI will not be responsible for any damage to landscaping,
hardscaping, utilities or improvements within ar adjacent to the LSL Grooming Area,
including but not limited to, shivbs, trees, turf, or patios, ar the i2rigation sprinkler system
and facilities installed as pa�� of the Approved Landscaping, because of its grooming
activities consistent�vith historical practice on the LSL land but subject to the prov'rsions af
subparagraph (a) above, and LSL hereby releases Vail and �vill hold Vail harmless fram
and indeu�nify Vail against any Iiability associated with such damage_except such damage
that is intentionally or maliciously inflicted by Vail. All costs and liabilities assaciated
with such damage not otherwise intentionally or maliciously inflicted by Vail shall be at
the e,cpense of LSL.
(ii) Because Vail grooms the LSL Grfloming Area and the Ski Yard togetlier and
there is no discernable property boundary, the general skiing poputation may not be aware that
the LSL land and the Ski Yard are two separate praperties, and Vail wiil not be liable to contral
skiers who may cross fram the Ski Yard onto LSL Iand. LSL, if LSL so desires and at LSL's
own cost and expense, �vill be responsible for controiling the prope��ty line between the Ski Yard
and LSL land ta prevent and manage the general populatian of skiers in not crossing the praperty
line into LSL land from the Ski Yard,including ei�forcement thereof.
6. �ffect of Lanciscanin��ncroachment Agreement. It is mutuaiiy intendec� that
the Landscaping Encioachment Agreement be conshued as cumulative with the provisions of the
MOU. However, in the event any utuesalva6le conflict or inconsistency arises betweert the
provisions of tliis MOU and the provisions of the Landscaping Encroachment Agreement, the
provisions of the Landscaping Encraachment Agreement shall be confi�olIing.
7. Recarding; Successors and Assigns. This MOU�vill be recorded in the records of
the Eagle County, Colorado, Clerk and Recorder and shall run with the land and title to fhe land.
This MOU shall inure to and be hinding upon the successors and assigns of#he parties to tl�is
MOU.
�
8. Miscellaneous.
(a) Tlus MOU (and any attached exhibits) contains the entire agreement and
understanding of the pai�ties with respect ta the subject matter hereof.
(b} No aniendment, alteration, modification of or addition ta this MOU, and
no waiver of any rights or obligations hereunder, shall be valid ar binding unless
expressed in writing and signed by the party or parties to be bound theret�y.
(c) Tlus MOU shall be governed by and interpreted in accordance with the
la�vs of the State of Colorado. �
(d) Any notices ta be given hereunder shall be deemed to be given three (3)
days after mailing, if maifed, or upon delivaiy to the applicable premises if hand
detivered. Notices shall be delivered or mailed to the pa��ties at their respective addresses
Iisted below or at such other address as shal! be specified in writing by a party in
accordance with these notice piovisions, as fallaws (provided that any addresses
specified must be wi#lun Vail or Avon, Colorado, and must include a street address, and
neither paity may establish more tI�an hvo addresses at any one time):
IF TO VAIL:
c%Vail Resorts Development Company
Post Of�ice Bo�959
137 Benchmai�lc Road
Avon, Colarado 81620
Attn; Sr. Vice President
IF TO LSL: -
Lian Square Condominium Associatian,Inc.
Attn: Generaf Manager
db0 West Lionshead Place
Vail, CoIorado 81657 '
(e) Time is of the essence with respect to the pei�farmance of each of the
covenants and agreements herein set forth.
(fl Vail hereby represents to the LSL that Vail has taken or received all
carporate and company acrian or authorizatian necessary for Vail ta enter into this MOU;
that Vail's entr.y into this MOU constitutes the duly aut��orized corporate and company
action of Vail; and fhat this MOU is binding on Vail: LSL in turn represents to Vail that
LSL has taken all actions and received all consents or authorizations fiom its board of
directors (however denominated) and/or its members (i.e., the unit owners within the
condominiums) which are requisite to LSL's enhy into this MOU; that LSL's entry into
this MOU constitutes the duly authorized coiporate and association acfion of LSL; and
that tl�is MOU is binding on LSL. LSL also acknowledges and covenants that it has
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made this MOU on behalf of its members and that it is binding on its members as well as
LSL. �
(g} As used heY•ein, "business day" shali mean any day other than a Saturday,
Sunday ar Iegal hoiiday far which U.S. Mai1 service is not provided,
(h) This MOU may be executed in counteiparts, each of which shall cons�ifute
an ariginal, and which together shali constitute one and the same agreement. Any party
hereto may confirm legal deIivery of its counterpart hy facsimile ar e-maii transmission
of its signed and acknowledged signature page.
[Balance of page intentionally left blank]
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Executed to be made effective as af the date set forth above.
LSL:
LION SQUARE CONDOMINIUM
ASSOCIATION, a Calorado nonprofit
coi�poratian
� v
By: rr������-, lc. ��.i..��
Natne: �.e F� r`,e�c :� p, ��� �.�� ��=
Title• �,� c s
STATE OF COLORADO )
_ ) ss.
COUNTY OF EAGLE )
The foregoing insttvment �vas acknawledged hefore me this ��-day of
�(J�� f , 20 f� by F��#'�r�C�. �.��f���'as �r G� ;�E i�-� of Lion
Square Condominium Association,Inc.,a Colorado nonprofit coiporation.
My commission expires: .,J,;��.r `�. �� t �
�..r;,,„�;;?��,,
,.�• w
[SEAL] , ��r `��;���
� �
� ��
�� ` ,�. ��}. :�
Q
Notary P'blic '•. ���`
�'^:���.o��,��:
[Signature BIocks Continue on Next Page]
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VAIL:
ARRABELLE AT VAIL SQUARE, LLC, a
Colorada limited Iiability company
By:Vail Resorts Develapment Company, a
Colorado corporation, as Managing Mernber
By:
Name:
Title:
STATE OF COLORADO )
)ss.
COUNTY OF EAGLE ) .
The foregoing instrument was acknowledged before me #his day of
� 20_� �Y as of Vail
Resoi�s Development Company, a Colorado coiporation, as Managing Mernber of
ARR.ABELLE AT VAIL SQUARE,LLC,a Colorado limited Iiability campany.
My commission expires:
[SEALJ
Notary Public
[Signatur�Blocl�.s Cantinue on Next Page] •
8
THE VAIL CORPORATION, a Colorado
corporation
By;
Name:
Tit1e:
STATE OF COLORADQ ) �
)ss.
COUNTY�F EAGLE )
The foregaing instrument was acknowledged before me this day of
, 20_, by as of The
Vail Cor•poration,a Colorado corporation.
- My commissian expires:
[SEAL]
Nofaiy Public
9
�XHIBTT A
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