HomeMy WebLinkAboutCDOT Lease AgreementPROPERTY MGMT.NO. SIB 100 2P �
NO: PROJECT FAP- 25 -A(1)
LOCATION: South Side of US 6, West of Vail
Road, Vail, Colorado
LEASE AGREEMENT
(Vacant Land)
THIS LEASE AGREEMENT made and entered into this l day of IK&.`r� 2-00 by and
between the State of Colorado acting by and through the Colorado Department of Transportation, CDOT,
hereinafter referred to as "Lessor", and Vail Development, LLC and its successors hereinafter referred to
as "Lessee ".
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree
as follows:
1. PREMISES, Lessor hereby leases and demises unto Lessee the Premises, hereinafter referred
to as Premises located at along the south side of the 1 -70 South Frontage Road and west of Vail Road
in Vail, Colorado. The Premises, known and described as Parcel L -101, Project FAP- 25 -A(1) includes
approximately 18,990 square feet of land area; the leased Premises being as shown on the plat
attached hereto, made a part hereof and marked "Exhibit A.
2. TERM The term of this lease shall begin at 12 noon on March 5, 2007 and end at 12 noon on
March 5, 2008, subject to the cancellation and termination provisions herein.
3. RENT. Lessee shall pay $ 1,200.00 as rent which shall be due upon signing of the lease.
Payments shall be made payable to the Colorado Department of Transportation at:
Colo. Dept. of Transportation
C/o Accounting Receipts & Deposits
4201 East Arkansas Ave., Rm. 212
Denver, CO 80222
or at such place as Lessor from time to time designates by notice as provided herein.
In the event Lessor has not received the rental installment hereunder on or before the tenth (10) day of
the month when due, a late charge of five percent (5 %) of the total installment will be assessed to the
Lessee for that month and each succeeding month the payment is not received on or before the 10th day
of that month. In the event the Lessee for a rental installment tenders a check, and it is returned to
Lessor for insufficient funds, Lessee agrees to pay administrative charges to Lessor of Twenty Dollars
($20.00). Both Lessor and Lessee agree that acceptance by the Lessor of the late payment does not
waive Lessor's right to declare Lessee in default of this Lease Agreement.
4. USE. It is understood and agreed that the that the Lessee intends to use the Premises only for
installation of 12 "de- watering" wells and 643 "soil nails ". The Premises may not be used for any other
purpose without the specific written prior permission of the Lessor. Any other use of the Premises shall
constitute material breach of this Lease and may cause this lease to terminate immediately at the
Lessor's option.
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5. TAXES, UTILITIES, MAINTENANCE AND OTHER EXPENSES. It is understood and agreed that
this Lease shall be an absolute Net Lease with respect to Lessor, and that all taxes, assessments,
insurance, utilities and other operating costs and the cost of all maintenance, repairs, and improvements,
and all other direct costs, charges and expenses of any kind whatsoever respecting the Premises shall be
borne by Lessee and not by the Lessor so that the rental return to Lessor shall not be reduced, offset or
diminished directly or indirectly by any cost or charge. Lessee shall maintain the Premises in good repair
and in tenable condition free of trash and debris during the term of this lease. Lessor shall have the right
to enter the Premises at any time for the purpose of making necessary inspections.
6. HOLD HARMLESS. The Lessee shall save, indemnify and hold harmless the Lessor and FHWA
for any liability for damage or loss to persons or property resulting from Lessee's occupancy or use of the
Premises.
7. OWNERSHIP. The State of Colorado is the owner or the Premises. Lessor warrants and
represents himself to be the authorized agent of the State of Colorado for the purposes of granting this
Lease.
8. LEASE ASSIGNMENT. Lessee shall not assign this Lease and shall not sublet the demised
Premises without specific written permission of the Lessor and will not permit the use of said Premises to
anyone, other than Lessee, its agents or employees, without the prior written consent of Lessor.
9. APPLICABLE LAW. The laws of the State of Colorado and rules and regulations issued pursuant
thereto shall be applied in the interpretation, execution and enforcement of this Lease. Any provision of
this Lease, whether or not incorporated herein by reference, which provides for arbitration by any extra-
judicial body or person or which is otherwise in conflict with said laws, rules and regulations shall be
considered null and void. Nothing contained in any provision incorporated herein by reference which
purports to negate this or any other special provision in whole or in part shall be valid or enforceable or
available in any action at law whether by way of compliant, defense or otherwise. Any provision rendered
null and void by the operation of this provision will not invalidate the remainder of this Lease to the extent
that this agreement is capable of execution.
10. CANCELLATION. Both parties understand that at any time before the scheduled expiration of
the term of this Lease, Lessor has the right to cancel the lease without liability by giving the Lessee
90 days written notice of its intention to cancel the Lease. The notice shall be hand delivered, posted on
the Premises, or sent to the Lessee, at the address of the Lessee contained herein by Certified Mail,
return receipt requested. This Lease may also be canceled by the Lessee by giving the Lessor 90 days
written notice of their intent to do so and after receiving permission of the Lessor to remove, and having
removed all soil noils and filling and capping all de- watering wells.
11. COMPLETE AGREEMENT. This Lease, including all exhibits, supersedes any and all prior
written or oral agreements and there are no covenants, conditions or agreements between the parties
except as set forth herein. No prior or contemporaneous addition, deletion, or other amendment hereto
shall have any force or affect whatsoever unless embodied herein in writing. No subsequent novation,
renewal, addition, deletion or other amendment hereto shall have any force or effect unless embodied in
a written contract executed and approved pursuant to the State Fiscal Rules.
12. CAPTIONS, CONSTRUCTION, AND LEASE EFFECT. The captions and headings used in this
Lease are for identification only, and shall be disregarded in any construction of the lease provisions. All
of the terms of this Lease shall inure to the benefit of and be binding upon the respective heirs,
successors, and assigns of both the Lessor and the Lessee. If any provision of this Lease shall be
determined to be invalid, illegal, or without force by a court of law or rendered so by legislative act then
the remaining provisions of this Lease shall remain in full force and effect.
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Page 2 of 8
13. NO BENEFICIAL INTEREST. The signatories aver that to their knowledge, no state employee
has any personal or beneficial interest whatsoever in the service or property described herein.
14. NO VIOLATION OF LAW. The Lessee shall not commit, nor permit the commission of, any act or
thing, which shall be a violation of any ordinance of the municipality, City, County, or of any law of the
State of Colorado or the United States. The Lessee shall not use the Premises for any manner, which
shall constitute a nuisance or public annoyance. The signatories hereto aver that they are familiar with
18-8 -301, et seq., (Bribery and Corrupt Influences) and 18- 8-401, et seq., (Abuse of Public Office),
C.R.S., as amended, and that no violation of such provisions is present. The signatories aver that to their
knowledge, no state employee has any personal or beneficial interest whatsoever in the service or
property described herein.
15. NOTICE. Any notice required or permitted by this Lease may be delivered in person or sent by
registered or certified mail, return receipt requested, to the party at the address as hereinafter provided,
and if sent by mail it shall be effective when posted in the U.S. Mail Depository with sufficient postage
attached thereto:
LESSOR:
Colo. Dept. of Transportation
Property Management Manager
15285 S. Golden Rd., Bldg. 47
Golden, Colorado 80401
LESSEE:
Vail Development, LLC
(or as assigned to)
Black Diamond Resort — Vail, LLC
50 S. Sixth Street, Suite 1480
Minneapolois, MN 55402
Notice of change of address shall be treated as any other notice. The Lessee warrants that the address
listed above is the Lessee's current mailing address and that the Lessee will notify the Lessor in writing of
any changes in that address within ten (10) days of such change.
16. HOLDING OVER. If the Lessor allows the Lessee to occupy or use the Premises after the
expiration or sooner termination of this Lease, the Lessee becomes a Holdover Tenant and shall be a
month -to -month Lessee subject to all the laws of the State of Colorado applicable to such tenancy. The
rent to be paid by Lessee during such continued occupancy shall be the same being paid by Lessee as of
the date of expiration or sooner termination. Lessor and Lessee each hereby agree to give the other
party at least thirty (30) days written notice prior to termination of this holdover tenancy.
17. CHIEF ENGINEER'S APPROVAL. This Lease shall not be deemed valid until it has been
approved by the Chief Engineer of the Colorado Department of Transportation and by the Lessee.
18. HAZARDOUS MATERIALS. The Lessee agrees to defend, indemnify and hold harmless the
Lessor and any employees, agents, contractors, and officials of the Lessor against any and all damages,
claims, liability, loss, fines or expenses, including attorney's fees and litigation costs, related to the
presence, disposal; release or clean -up of any contaminants, hazardous materials or pollutants on, over,
under, from or affecting the property subject to this Lease, which contaminants or hazardous materials
the Lessee or its employees, agents, contractors or officials has caused to be located, disposed, or
released on the property. The Lessee shall also be responsible for all damages, claims and liability to the
soil, water, vegetation, buildings or personal property located thereon as well as any personal injury or
property damage related to such contaminants or hazardous materials.
19. NO NEW PERMANENT STRUCTURES OR IMPROVEMENTS. No new permanent structures or
improvements of any kind, other than those described in Section 2 of this lease, shall be erected or
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Page 3 of 8
moved upon the Premises by the Lessee without the express written prior permission of the Lessor. Any
such structure or improvement erected or moved upon the Premises without the express written consent
of the Lessor may be immediately removed by the Lessor at the expense of the Lessee. Further, any
structures, improvements or items of any kind remaining on the Premises at the termination of the Lease
will be considered abandoned by the Lessee and may be immediately removed by Lessor at the Lessee's
expense; provided, howver, that abandonment of the soil nails is anticipated by this agreement and
conpensation for any future removeal is provided for in Section 23 below and such abandonment of the
soil nails shall not in and of itself require the immediate removal of the soil nails by Lessor.
20. BINDING AGREEMENT. This Lease shall be binding upon and inure to the benefit of the
partners, heirs, executors, administrators, and successors of the respective parties hereto.
21. DEFAULT. If: (1) Lessee shall fail to pay any rent or other sum payable hereunder for a period of
10 days after the same is due; (2) Lessee shall fail to observe, keep or perform any of the other terms,
agreements or conditions contained herein or in regulations to be observed or performed by Lessee and
such default continues for a period of 30 days after notice by Lessor; (3) This Lease or any interest of
Lessee hereunder shall be levied upon by any attachment or execution, then any such event shall
constitute an event of default by Lessee. Upon the occurrence of any event of default by Lessee
hereunder, Lessor may, at its option and without any further notice or demand, in addition to any other
rights and remedies given hereunder or by law, do any of the following:
(a) Lessor shall have the right, so long as such default continues, to give notice of termination to
Lessee. On the date specified in such notice (which shall not be less than 3 days after the giving of such
notice) this Lease shall terminate.
(b) In the event of any such termination of this Lease, Lessor may then or at any time thereafter,
re -enter the Premises and remove there from all persons and property and again repossess and enjoy
the Premises, without prejudice to any other remedies that Lessor may have by reason of Lessee's
default or of such termination.
(c) The amount of damages which Lessor may recover in event of such termination shall include,
without limitation, (1) the amount at the time of award of unpaid rental earned and other sums owed by
Lessee to Lessor hereunder, as of the time of termination, together with interest thereon as provided in
this Lease, (2) all legal expenses and other related costs incurred by Lessor following Lessee's default
including reasonable attorneys' fees incurred in collecting any amount owed hereunder (3) any damages
to the property beyond its present condition.
(d) Upon the Lessee's failure to remove its personal property from the Premises after the
expiration of the term of this Lease, (with the exception of the soil nails that will remain) Lessor may in its
sole discretion, without notice to or demand upon Lessee, remove, sell or dispose of any and all personal
property located on the Premises. Lessee waives all claims for damages that may be caused by Lessor's
removal of property as herein provided.
22. INSURANCE. (Revised 2006 per State Controller Requirements)
(a) The Lessee shall obtain and maintain, at all times during the duration of this Lease,
insurance in the kinds and amounts detailed below. The Lessee shall require any Contractor working for
them on the Premises to obtain like coverage. The following insurance requirements must be in effect
during the entire term of the Lease. Lessee shall, at it sole cost and expense, obtain insurance on its
inventory, equipment and all other personal property located on the Premises against loss resulting from
fire, theft or other casualty.
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Page 4 of 8
(b) Workers' Compensation Insurance as required by State statute, and Employer's Liability
Insurance covering all employees acting within the course and scope of their employment and work on
the activities authorized by this Lease in Paragraph 4.
(c) Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93
or equivalent, covering Premises operations, fire damage, independent Consultants, blanket contractual
liability, personal injury, and advertising liability with minimum limits as follows:
1. $1,000,000 each occurrence;
2. $2,000,000 general aggregate;
3. $50,000 any one fire.
If any aggregate limit is reduced below, $1,000,000 because of claims made or paid, the Lessee,
or as applicable, its Contractor, shall immediately obtain additional insurance to restore the full
aggregate limit and furnish to CDOT a certificate or other document satisfactory to CDOT
showing compliance with this provision.
(d) If any operations are anticipated that might in any way result in the creation of a pollution
exposure, Lessee shall also provide Pollution Legal Liability Insurance with minimum limits of liability of
$1,000,000 Each Claim and $1,000,000 Annual Aggregate. CDOT shall be named as an Additional
Insured to the Pollution Legal Liability policy. The Policy shall be written on a Claims Made form, with an
extended reporting period of at least two year following finalization of the Lease.
(e) Umbrella or Excess Liability Insurance with minimum limits of $1,000,000. This policy
shall become primary (drop down) in the event the primary Liability Policy limits are impaired or
exhausted. The Policy shall be written on an Occurrence form and shall be following form of the primary.
The following form Excess Liability shall include CDOT as an Additional Insured.
(f) CDOT shall be named as Additional Insured on the Commercial General Liability
Insurance policy. Coverage required by the Lease will be primary over any insurance or self- insurance
program carried by the State of Colorado.
(g) The Insurance shall include provisions preventing cancellation or non - renewal without at
least 30 days prior notice to CDOT by certified mail to the address contained in this document.
(h) The insurance policies related to the Lease shall include clauses stating that each carrier
will waive all rights of recovery, under subrogation or otherwise, against CDOT, its agencies, institutions,
organizations, officers, agents, employees and volunteers.
(i) All policies evidencing the insurance coverage required hereunder shall be issued by
insurance companies satisfactory to CDOT.
(j) In order for this lease to be executed, the Lessee, or as applicable, their Contractor, shall
provide certificates showing insurance coverage required by this Lease to CDOT prior to the execution of
this lease. No later than 30 days prior to the expiration date of any such coverage, the Lessee or
Contractor shall deliver to the Notice Address of CDOT certificates of insurance evidencing renewals
thereof. At any time during the term of this Lease, CDOT may request in writing, and the Lessee or
Contractor shall thereupon within 10 days supply to CDOT, evidence satisfactory to CDOT of compliance
with the provisions of this section. Insurance coverage must be in effect or this lease is in default.
(k) Notwithstanding subsection (a.) of this section, if the Lessee is a "public entity" within the
meaning of the Colorado Governmental Immunity Act CRS 24 -10 -101, et sea., as amended ( "Act'), the
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Lessee shall at all times during the term of this Lease maintain only such liability insurance, by
commercial policy or self- insurance, as is necessary to meet its liabilities under the Act. Upon request by
CDOT, the Lessee shall show proof of such insurance satisfactory to CDOT. Public entity Lessees are
not required to name CDOT as an Additional Insured.
(1) If the Lessee engages a Contractor to act independently from the Lessee on the Premises,
that Contractor shall be required to provide an endorsement naming CDOT as an Additional Insured on
their Commercial General Liability, and Umbrella or Excess Liability policies.
23. ADDITIONAL PROVISIONS.
The Lessee proposes to install "soil nails" and "de- watering" wells in the parcel described above, and as
shown on Sheets XBS -2 through XBS -5 of the construction plans by Coggins & Sons, Inc. of Littleton,
Colorado, dated 9/9/05 as attached hereto. The purpose of the proposed installation is to shore up the
Lessor's property subsequent to excavation of the Lessee's adjoining property and to prevent water
seepage into the excavated area. The "soil nails" are proposed to enter the leased property at various
elevations from 8,168 feet to 8,128 feet and extend down to the north at an approximate 15° angle to
elevations between 8156 feet to 8116 feet based on the above referenced construction plans attached
hereto. The preceding sentence notwithstanding, the construction plans referenced above shall control.
The "soil nails" shall remain in the subsurface of the Lessor's property until they are removed by or with
the permission of the Lessor; but in no event shall the soil nails be removed prior to the end of the term of
the Lease Ageement. The "de- watering" wells shall be filled and capped by the Lessee at their sole
expense in accordance with local, State and Federal regulations, laws and guidelines/standards before
the end of the term of this lease.
(a) The payment for this lease will consist of two parts:
(i) The first part is that described in Section 3 and shall be fixed for a period of one
year.
(ii) The second part of the payment consists of ONE PAYMENT of $48,225.00, due upon
signing of this lease, which is the calculated current cost of removing the soil nails during
excavation and is based on 643 nails at $75.00 per nail. Any addition or subtraction of the
number of nails shall be reflected in the total amount of this payment on the basis of $75.00 per
nail. This payment is agreed upon between the parties to be the total amount to be paid by the
Lessee to offset any future costs of removal of the soil nails by the Lessor.
(b) The Lessee has represented to the Lessor that their building is freestanding and not
dependent upon the soil nails for support. The Lessee therefore agrees that they will have no legal
recourse against the Lessor, it's agents or Permitees if during the responsible removal of the soil nails the
Lessee's property is damaged due to lack of support.
(c) The Lessee further agrees that it will indemnify the Lessor for any damages incurred by
Permittees of the Lessor, if during the normal course of their business their equipment or facilities are
damaged in connection with the installation of the soil nails or de- watering wells on the Premises.
i. The Lessee acknowledges that it is aware of the existing utilities in the area to be
leased and agrees that it will submit plans of its proposed installations to the affected utility
companies for review and concurrence. The Lessee further agrees that it will provide the Lessor
with copies of written documentation from each utility that they have reviewed the proposed
installation and concur with the plans to avoid and protect the existing utilities and to mitigate any
damages. Such documentation will be submitted to Lessor prior to any work being conducted on
the Premises by Lessee.
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ii. The Lessee agrees that it will not damage utility facilities presently existing and will
repair at its cost such facilities if damage occurs due to its work within the right of way. Lessee
further agrees that it will indemnify and hold harmless the Lessor and all utility companies
presently occupying the right of way as a consequence of Lessee's action.
(d) The designer of the shoring system, Coggins & Sons, Inc. of Littleton, Colorado has required
weekly monitoring of the excavation for horizontal movement during construction and
reporting of the results by the contractor to them for review. in at letter dated February 27,
2007 and signed by James H. Hart, PE, Coggins & Sons, Inc. discussed minimum and
maximum anticipated horizontal wall movement and plans if unacceptable movement should
occur. A copy of this letter is attached as an exhibit to this lease. The Lessor is specifically
relying on the assurances of this letter and the Lessee agrees to continue to employ Coggins
& Son, Inc. in it's present position and to promptly implement all recommendations of that
company.
(e) Lessee agrees to include the Lessor in the weekly distribution list for the results of the
horizontal wall movement monitoring. Monitoring results will be sent in a timely manner to
CDOT Materials and Geotechnical Branch
Attention: Mark Vessely.
4201 East Arkansas Avenue.
Denver, CO 80222
970 -618 -3284
(f) Lessee further agrees to provide prompt notification of any indications of failure, including
but not limited to soil or pavement cracking, to the party noted above and to the following parties,
James Pitkin, Senior Supervisor
970 -471 -1242
Larry Dungan, Vail TM -111
970 - 845 -8816 Office
970471 -9768 Cell
David Lykins
970 - 845 -1027 Office
970 -401 -2326 Cell
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IN WITNESS WHEREOF, the parties hereto have executed this lease agreement on the day and year
first above written.
LESSEE:
Vail Development, LLC
(Full Legal Name)
(If Corporation) By
Attest (Seal) (Name) sots
Title �� c 1`�lA►nt A� By
�'j- 12129
Secretary / Federal Tax Identification Number
I y n e5o4a'
STATE OF )
) ss
COUNTY OF
The foregoing instrument was subscribed and sworn to before me this 17 day of
by a las . C-, . p 1 osLivjd -
Ili I
Witness my hand and official seal.
dh My commission expires 1- 31— 0-7—
Notary Public
CHA 107 i E MARIA SCHU
'r ;,TARY PUBLIC Address:
sw : OF MINNESOTA
MY OpivglgiSSON EXPIRES 0113112012
5o Stic�
LESSOR:
ATTEST: COLORADO DEPARTMENT OF
TRANSPORTATION
D G S W. BENNETT l PAMELA E. HUTTON, P.E.
Chief Clerk I& Right of Way Chief Engineer
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EXHIBIT - Page 1 of 4
Exhibit A
Terms and Conditions
Vail Development for the installation of de- watering wells and soil nails in the ROW
I . CDOT shall review and certify the datVs correct and consistent with the monitoring
plan that is described in the 3 8-07Coggins' and Sons, Inc letter to Levton
Construction Company, attached. This data and the certification shall be forward to
the FHWA Colorado Division office within ten working days of the collection of the
data.
2. The FHWA shall be held harmless for any damage that may occur to the resources of
the roadways (i.e. US 6 and I -70 embankments and the US 6 and I -70 pavements.)
3. The FWHA shall be held harmless for incidents involving public safety that are a
result of the use of the ROW as allowed by the agreement.
4. CDOT shall require Leyton and Coggins to develop a plan of action that shall be
submitted to CDOT for review and concurrence if unacceptable movement in the soil
nail wall occurs. This plan will be forwarded to FHWA Colorado Division Office,
S. CDOT shall ensure the Lessee:
a. Provides for the prevention of and control of soil erosion within the right -of-
way
b. Protects and preserves sail and vegetative cover on the right -of -way
6. Modifications of the lease agreement will require FHWA review and approval prior
to implementation of an alternate construction method.
7. The FHWA shall have the right to access the sight for inspection of the soil nail wall
and roadway facility at any time during the duration of the lease.
8. Any repair work that is determined to be a result of the Lessee's use of the I -70 right -
of -way shall not be eligible for federal -aid funding
� Abrt og %ter �c°fi"e r waS rece►it.�e d vc
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COGGINS & SO
Caisson Drilling, Excavation Shoring, Tieback Anchors
March 8, 2007
Layton Construction Company, Inc,
9090 South Sandy Parkway
Sandy, UT 84070
Attention: Mark Sheanshang
Subject: Four Seasons Resort Earth Retention
Horizontal movement
As requested, we are providing a follow -up letter to our February 27, 2006- letter estimating
the horizontal movement of the proposed soil nail wall.
As outlined from Table 5.2 on page 105 of the Federal Highway Administration -(FHA)
Greotechnical Engineering Circular Number 7 "Soil Nail Walls" (Publication No. FHWA IF-
03 =017) dated March 2003; the estimated mamum horizontal wall displacement of wall
height 49 feet would be 1.18 inch
If you have any questions, please contact us.
Sincerely,
Coggin and Sons, 0 REG/
X.
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3 Iva 0*7
John, H. Hart, P.E. ••�.•••••.'r•
9512 Titan Park Circle a Littleton, Colorado 60125 • (303) 791.9911 - FAX (303) 791 -0967
I0o /'loom IN IE 1D1 NOH 56ilG0 /E0
COGGINS & SO
EXHIBIT A — PAGE 3 of 4
Caisson Drilling, Excavatlon Shoring, Tieback Anchors
February 27, 2007
Layton Construction Company, Inc.
9090 South Sandy parkway
Sandy, UT 84070
Attention: Mark Sheanshang
Subject: Four Seasons Resort Earth Retention
Anticipated horizontal movement and extending nails across Highway 6
As requested, we arc providing a letter estimating the anticipated horizontal movement of the
proposed soil nail wall.
This project has been designed following criteria as outlined in the Federal Highway
Administration (FHA) Geotcchnical Engineering Circular Number 7 "Soil Nail Wails"
(Publication No. FHWA -IF -03 -017) dated March 2003. Page 104 of the above - mentioned
manual provides detail to the deformation behavior of soil nail walls. The manual states,
"Maximum horizontal displacements occur at the top of the wall and decrease progressively
toward the toe of the wall." In addition, the manual states movement of soil nailed walls
dependent on many factors.
From visual observation and monitoring of many previously completed soils nailed walls, we
too have concluded wall movement dependent on many factors and that the height of wall
one of the most critical We can perform an elaborate finite element analysis, however, we
have determined an empirical approach produces accurate valves. From our experience and
outlined in the above - mentioned manual, the anticipated horizontal wall movement will vary
from a minimum of .002 to a maximum of .005 times the wall height. Please see the table
below for anticipated horizontal wall movement for various heights.
Table 1. Anticipated Horizontal wall movement fnr vnr;mie wail lw- ;ah+c.
Wall Height feet
49-42
Minimum 'the
v Maximum ftches)
2.94
1.01
41-35
0.84
2.46
34-28
0.67
2.04
27-21
0.50
1.62
20-14
0.34
1.20
13-7
0.17
0.78
As outlined on XBS -1 on the earth retention drawings, a monitoring program will be
implemented. As per our conversation on Friday, February 23, Layton Construction will
provide surveying of monitoring points established at the top of wall per Coggins direction.
The monitoring points will be spaced approximately 75 feet horizontally across the top of
9512 Titan Park Circle - Littleton, Colorado 80125 - (303) 791 -9911 - FAX (303) 791 -0967
COGGINS & SO
EXHIBIT A — PAGE 4 of 4
1�J ,Ie vi
♦yt%
Caisson Drilling, Excavation Shoring, Tieback Anchors
wall and installed once the first lift of shotcrete placed. The points will be read once a week
during earth retention construction and the data distributed to Coggins the following day.
Coggins will review the data and determine if the movement acceptable. If the movement
acceptable, earth retention construction will continue. If the movement not acceptable, earth
mention and excavation construction will cease and Coggin will initiate a plan of action. A
earth berm shall be placed in front of the area of concern until such time as Coggin
establishes and implements a plan of action to address the situation. Once the earth retention
construction completed, it will be the responsibility of Layton to continue monitoring of the
wall and keep Coggin informed of movement until the structure can withstand horizontal
loading.
All of us at Coggins & Sons feel strongly that we have proposed an earth retention system
that will limit horizontal deformation. The monitoring program that will be implemented
will inform us quickly if a situation arises so we can address the.situation in a timely manner.
In addition to estimating the horizontal movement, we were asked to examine the possibility
of extending the first row of nails across Highway 6 in lieu of terminating the nails under
Highway 6. After review, we can extend the first row of nails #48 through #78 so the nails
will terminate on the other side of Highway 6. In the near future, the earth retention plans
will be adjusted to reflect the longer nail lengths for the top row ofnails #48 through #78.
We feel the earth retention system proposed will generate a safe and successful project. If
you have any questions, please contact us.
Sincerely,
Coggin and Sons, Inc.
0
V�O
John H. Hart, P.E. " ? �
�Z7
9512 Titan Park Circle • Littleton. Colorado 80125 • (303) 791 -9911 • FAX (303) 791 -0967
1273
VAIL DEVELOPMENT LLC
50 SOUTH 6TH STAEET, STE. 1480
MINNEAPOLIS, MN 55402 17_1
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Minneapolis, MN 55479
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PROPERTY MGMT.NO.
NO: PROJECT FAP- 25 -A(1)
LOCATION: South Side of 1 -70 South Frontage
Road, West of Vail Road, Vail, Colorado
LEASE AGREEMENT
(Vacant Land)
THIS LEASE AGREEMENT made and entered into this day of by and
between the State of Colorado acting by and through the Colorado Department of Transportation, CDOT,
hereinafter referred to as "Lessor", and Vail Development, LLC and its successors hereinafter referred to
as "Lessee "_
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree
as follows:
1. PREMISES, Lessor hereby leases and demises unto Lessee the Premises, hereinafter referred
to as "Premises" located at along the south side of the 1 -70 South Frontage Road and west of Vail Road
in Vail, Colorado. The Premises, known and described as Parcel L -101, Project FAP- 25 -A(1) includes
approximately 18,990 square feet of land area; the leased Premises being as shown on the plat
attached hereto, made a part hereof and marked "Exhibit A.
2. TERM The term of this lease'shall begin at 12 noon on June 1, 2006 and end at 12 noon on May
31, 2011, subject to the cancellation and termination provisions herein.
3. RENT. Lessee shall pay $ 100.00 per (month) or per (year) as rent on the first of each month or
annual period during the term hereof. The first payment shall be due upon signing of the lease.
Payments shall be made payable to the Colorado Department of Transportation at:
Colo. Dept. of Transportation
C/o Accounting Receipts & Deposits
4201 East Arkansas Ave., Rm. 212
Denver, CO 80222
or at such place as Lessor from time to time designates by notice as provided herein.
In the event Lessor has not received the rental installment hereunder on or before the tenth (10) day of
the month when due, a late charge of five percent (5 %) of the total installment will be assessed to the
Lessee for that month and each succeeding month the payment is not received on or before the 10th day
of that month. In the event the Lessee for a rental installment tenders a check, and it is returned to
Lessor for insufficient funds, Lessee agrees to pay administrative charges to Lessor of Twenty Dollars
($20.00). Both Lessor and Lessee agree that acceptance by the Lessor of the late payment does not
waive Lessor's right to declare Lessee in default of this Lease Agreement.
4. USE. It is understood and agreed that the that the Lessee intends to use the Premises only for
installation of 12 "de- watering" wells and 643 "soil nails ". The Premises may not be used for any other
purpose without the specific written prior permission of the Lessor. Any other use of the Premises shall
constitute material breach of this Lease and may cause this lease to terminate immediately at the
Lessor's option.
Page 1 of 8
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V
5. TAXES, UTILITIES, MAINTENANCE AND OTHER EXPENSES. It is understood and agreed that
this Lease shall be an absolute Net Lease with respect to Lessor, and that all taxes, assessments,
insurance, utilities and other operating costs and the cost of all maintenance, repairs, and improvements,
and all other direct costs, charges and expenses of any kind whatsoever respecting the Premises shall be
borne by Lessee and not by the Lessor so that the rental return to Lessor shall not be reduced, offset or
diminished directly or indirectly by any cost or charge. Lessee shall maintain the Premises in good repair
and in tenable condition free of trash and debris during the term of this lease. Lessor shall have the right
to enter the Premises at any time for the purpose of making necessary inspections.
6. HOLD HARMLESS. The Lessee shall save, indemnify and hold harmless the Lessor and FHWA
for any liability for damage or loss to persons or property resulting from Lessee's occupancy or use of the
Premises.
7. OWNERSHIP. The State of Colorado is the owner or the Premises. Lessor warrants and
represents himself to be the authorized agent of the State of Colorado for the purposes of granting this
Lease.
8. LEASE ASSIGNMENT. Lessee shall not assign this Lease and shall not sublet the demised
Premises without speck written permission of the Lessor and will not permit the use of said Premises to
anyone, other than Lessee, its agents or employees, without the prior written consent of Lessor.
9. APPLICABLE LAW. The laws of the State of Colorado and rules and regulations issued pursuant
thereto shall be applied in the interpretation, execution and enforcement of this Lease. Any provision of
this Lease, whether or not incorporated herein by reference, which provides for arbitration by any extra-
judicial body or person or which is otherwise in conflict with said laws, rules and regulations shall be
considered null and void. Nothing contained in any provision incorporated herein by reference which
purports to negate this or any other special provision in whole or in part shall be valid or enforceable or
available in any action at law whether by way of compliant, defense or otherwise. Any provision rendered
null and void by the operation of this provision will not invalidate the remainder of this Lease to the extent
that this agreement is capable of execution.
10. CANCELLATION. Both parties understand that at any time before the scheduled expiration of
the term of this Lease, Lessor has the right to cancel the lease without liability by giving the Lessee
90 days written notice of its intention to cancel the Lease. The notice shall be hand delivered, posted on
the Premises, or sent to the Lessee, at the address of the Lessee contained herein by Certified Mail,
return receipt requested. This Lease may also be canceled by the Lessee by giving the Lessor 90 days
written notice of their intent to do so and after receiving permission of the Lessor to remove, and having
removed all soil noils and filling and capping all de- watering wells.
11. COMPLETE AGREEMENT. This Lease, including all exhibits, supersedes any and all prior
written or oral agreements and there are no covenants, conditions or agreements between the parties
except as set forth herein. No prior or contemporaneous addition, deletion, or other amendment hereto
shall have any force or affect whatsoever unless embodied herein in writing. No subsequent novation,
renewal, addition, deletion or other amendment hereto shall have any force or effect unless embodied in
a written contract executed and approved pursuant to the State Fiscal Rules.
12. CAPTIONS, CONSTRUCTION, AND LEASE EFFECT. The captions and headings used in this
Lease are for identification only, and shall be disregarded in any construction of the lease provisions. All
of the terms of this Lease shall inure to the benefit of and be binding upon the respective heirs,
successors, and assigns of both the Lessor and the Lessee. If any provision of this Lease shall be
determined to be invalid, illegal, or without force by a court of law or rendered so by legislative act then
the remaining provisions of this Lease shall remain in full force and effect.
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Page 2 of 8
13. NO BENEFICIAL INTEREST. The signatories aver that to their knowledge, no state employee
has any personal or beneficial interest whatsoever in the service or property described herein.
14. NO VIOLATION OF LAW. The Lessee shall not commit, nor permit the commission of, any act or
thing, which shall be a violation of any ordinance of the municipality, City, County, or of any law of the
State of Colorado or the United States. The Lessee shall not use the Premises for any manner, which
shall constitute a nuisance or public annoyance. The signatories hereto aver that they are familiar with
18 -8 -301, et seq., (Bribery and Corrupt Influences) and 18 -8 -401, et seq., (Abuse of Public Office),
C.R.S., as amended, and that no violation of such provisions is present. The signatories aver that to their
knowledge, no state employee has any personal or beneficial interest whatsoever in the service or
property described herein.
15. NOTICE. Any notice required or permitted by this Lease may be delivered in person or sent by
registered or certified mail, return receipt requested, to the party at the address as hereinafter provided,
and if sent by mail it shall be effective when posted in the U.S. Mail Depository with sufficient postage
attached thereto:
LESSOR:
Colo. Dept. of Transportation
Property Management Manager
15285 S. Golden Rd., Bldg. 47
Golden, Colorado 80401
LESSEE:
Vail Development, LLC
c/o Black Diamond Resort — Vail, LLC
50 S. Sixth Street, Suite 1480
Minneapolois, MN 55402
Notice of change of address shall be treated as any other notice. The Lessee warrants that the address
listed above is the Lessee's current mailing address and that the Lessee will notify the Lessor in writing of
any changes in that address within ten (10) days of such change.
16. HOLDING OVER. If the Lessor allows the Lessee to occupy or use the Premises after the
expiration or sooner termination of this Lease, the Lessee becomes a Holdover Tenant and shall be a
month -to -month Lessee subject to all the laws of the State of Colorado applicable to such tenancy. The
rent to be paid by Lessee during such continued occupancy shall be the same being paid by Lessee as of
the date of expiration or sooner termination. Lessor and Lessee each hereby agree to give the other
party at least thirty (30) days written notice prior to termination of this holdover tenancy.
17. CHIEF ENGINEER'S APPROVAL. This Lease shall not be deemed valid until it has been
approved by the Chief Engineer of the Colorado Department of Transportation and by the Lessee.
18. HAZARDOUS MATERIALS. The Lessee agrees to defend, indemnify and hold harmless the
Lessor and any employees, agents, contractors, and officials of the Lessor against any and all damages,
claims, liability, loss, fines or expenses, including attorney's fees and litigation costs, related to the
presence, disposal, release or clean -up of any contaminants, hazardous materials or pollutants on, over,
under, from or affecting the property subject to this Lease, which contaminants or hazardous materials
the Lessee or its employees, agents, contractors or officials has caused to be located, disposed, or
released on the property. The Lessee shall also be responsible for all damages, claims and liability to the
soil, water, vegetation, buildings or personal property located thereon as well as any personal injury or
property damage related to such contaminants or hazardous materials.
19. NO NEW PERMANENT STRUCTURES OR IMPROVEMENTS. No new permanent structures or
improvements of any kind, other than those described in Section 2 of this lease, shall be erected or
moved upon the Premises by the Lessee without the express written prior permission of the Lessor. Any
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Page 3 of 8
such structure or improvement erected or moved upon the Premises without the express written consent
of the Lessor may be immediately removed by the Lessor at the expense of the Lessee. Further, any
structures, improvements or items of any kind remaining on the Premises at the termination of the Lease
will be considered abandoned by the Lessee and may be immediately removed by Lessor at the Lessee's
expense; provided, howver, that abandonment of the soil nails is anticipated by this agreement and
conpensation for any future removeal is provided for in Section 23 below and such abandonment of the
soil nails shall not in and of itself require the immediate removal of the soil nails by Lessor.
20. BINDING AGREEMENT. This Lease shall be binding upon and inure to the benefit of the
partners, heirs, executors, administrators, and successors of the respective parties hereto.
21. DEFAULT. If: (1) Lessee shall fail to pay any rent or other sum payable hereunder for a period of
10 days after the same is due; (2) Lessee shall fail to observe, keep or perform any of the other terms,
agreements or conditions contained herein or in regulations to be observed or performed by Lessee and
such default continues for a period of 30 days after notice by Lessor; (3) This Lease or any interest of
Lessee hereunder shall be levied upon by any attachment or execution, then any such event shall
constitute an event of default by Lessee. Upon the occurrence of any event of default by Lessee
hereunder, Lessor may, at its option and without any further notice or demand, in addition to any other
rights and remedies given hereunder or by law, do any of the following:
(a) Lessor shall have the right, so long as such default continues, to give notice of termination to
Lessee. On the date specified in such notice (which shall not be less than 3 days after the giving of such
notice) this Lease shall terminate.
(b) In the event of any such termination of this Lease, Lessor may then or at any time thereafter,
re -enter the Premises and remove there from all persons and property and again repossess and enjoy
the Premises, without prejudice to any other remedies that Lessor may have by reason of Lessee's
default or of such termination.
(c) The amount of damages which Lessor may recover in event of such termination shall include,
without limitation, (1) the amount at the time of award of unpaid rental earned and other sums owed by
Lessee to Lessor hereunder, as of the time of termination, together with interest thereon as provided in
this Lease, (2) all legal expenses and other related costs incurred by Lessor following Lessee's default
including reasonable attorneys' fees incurred in collecting any amount owed hereunder (3) any damages
to the property beyond its present condition.
(d) Upon the Lessee's failure to remove its personal property from the Premises after the
expiration of the term of this Lease, (with the exception of the soil nails that will remain) Lessor may in its
sole discretion, without notice to or demand upon Lessee, remove, sell or dispose of any and all personal
property located on the Premises. Lessee waives all claims for damages that may be caused by Lessor's
removal of property as herein provided.
22. INSURANCE. (Revised 2006 per State Controller Requirements)
(a) The Lessee shall obtain and maintain, at all times during the duration of this Lease,
insurance in the kinds and amounts detailed below. The Lessee shall require any Contractor working for
them on the Premises to obtain like coverage. The following insurance requirements must be in effect
during the entire term of the Lease. Lessee shall, at it sole cost and expense, obtain insurance on its
inventory, equipment and all other personal property located on the Premises against loss resulting from
fire, theft or other casualty.
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(b) Workers' Compensation Insurance as required by State statute, and Employer's Liability
Insurance covering all employees acting within the course and scope of their employment and work on
the activities authorized by this Lease in Paragraph 4.
(c) Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93
or equivalent, covering Premises operations, fire damage, independent Consultants, blanket contractual
liability, personal injury, and advertising liability with minimum limits as follows:
1. $1,000,000 each occurrence;
2. $2,000,000 general aggregate;
3. $50,000 any one fire.
If any aggregate limit is reduced below, $1,000,000 because of claims made or paid, the Lessee,
or as applicable, its Contractor, shall immediately obtain additional insurance to restore the full
aggregate limit and furnish to CDOT a certificate or other document satisfactory to CDOT
showing compliance with this provision.
(d) If any operations are anticipated that might in any way result in the creation of a pollution
exposure, Lessee shall also provide Pollution Legal Liability Insurance with minimum limits of liability of
$1,000,000 Each Claim and $1,000,000 Annual Aggregate. CDOT shall be named as an Additional
Insured to the Pollution Legal Liability policy. The Policy shall be written on a Claims Made form, with an
extended reporting period of at least two year following finalization of the Lease.
(e) Umbrella or Excess Liability Insurance with minimum limits of $1,000,000. This policy
shall become primary (drop down) in the event the primary Liability Policy limits are impaired or
exhausted. The Policy shall be written on an Occurrence form and shall be following form of the primary.
The following form Excess Liability shall include CDOT as an Additional Insured.
(f) CDOT shall be named as Additional Insured on the Commercial General Liability
Insurance policy. Coverage required by the Lease will be primary over any insurance or self- insurance
program carried by the State of Colorado.
(g) The Insurance shall include provisions preventing cancellation or non - renewal without at
least 30 days prior notice to CDOT by certified mail to the address contained in this document.
(h) The insurance policies related to the Lease shall include clauses stating that each carrier
will waive all rights of recovery, under subrogation or otherwise, against CDOT, its agencies, institutions,
organizations, officers, agents, employees and volunteers.
(i) All policies evidencing the insurance coverage required hereunder shall be issued by
insurance companies satisfactory to CDOT.
(j) In order for this lease to be executed, the Lessee, or as applicable, their Contractor, shall
provide certificates showing insurance coverage required by this Lease to CDOT prior to the execution of
this lease. No later than 30 days prior to the expiration date of any such coverage, the Lessee or
Contractor shall deliver to the Notice Address of CDOT certificates of insurance evidencing renewals
thereof. At any time during the term of this Lease, CDOT may request in writing, and the Lessee or
Contractor shall thereupon within 10 days supply to CDOT, evidence satisfactory to CDOT of compliance
with the provisions of this section. Insurance coverage must be in effect or this lease is in default.
(k) Notwithstanding subsection (a.) of this section, if the Lessee is a "public entity' within the
meaning of the Colorado Governmental Immunity Act CRS 24 -10 -101, et sea., as amended ( "Act'), the
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Lessee shall at all times during the term of this Lease maintain only such liability insurance, by
commercial policy or self- insurance, as is necessary to meet its liabilities under the Act. Upon request by
CDOT, the Lessee shall show proof of such insurance satisfactory to CDOT. Public entity Lessees are
not required to name CDOT as an Additional Insured.
(1) If the Lessee engages a Contractor to act independently from the Lessee on the Premises,
that Contractor shall be required to provide an endorsement naming CDOT as an Additional Insured on
their Commercial General Liability, and Umbrella or Excess Liability policies.
23. ADDITIONAL PROVISIONS.
The Lessee proposes to install "soil nails" and "de- watering" wells in the parcel described above, and as
shown on Sheet XBS -2 of the construction plans by Coggins & Sons, Inc. Shoring Contracts of Littleton,
Colorado, dated 9/9/05 as attached hereto. The purpose of the proposed installation is to shore up the
Lessor's property subsequent to excavation of the Lessee's adjoining property and to prevent water
seepage into the excavated area. The "soil nails" shall remain in the subsurface of the Lessor's property
until they are removed by or with the permission of the Lessor; but in no event shall the soil nails be
removed prior to the end of the term of the Lease Ageement. The "de- watering" wells shall be filled and
capped in accordance with local, State and Federal regulations, laws and guidelines /standards before the
end of the term of this lease.
(a) The payment for this lease will consist of two parts:
(i) The first part is that described in Section 3 and shall be fixed for a period of FIVE (5)
YEARS or 60 monthly payments.
(ii) The second part of the payment consists of ONE PAYMENT of $48,225.00, due upon
signing of this lease, which is the calculated current cost of removing the soil nails during
excavation and is based on 643 nails at $75.00 per nail. Any addition or subtraction of the
number of nails shall be reflected in the total amount of this payment on the basis of $75.00 per
nail. This payment is agreed upon between the parties to be the total amount to be paid by the
Lessee to offset any future costs of removal of the soil nails by the Lessor.
(b) The Lessee has represented to the Lessor -that their building is freestanding and not
dependent upon the soil nails for support. The Lessee therefore agrees that they will have no legal
recourse against the Lessor, it's agents or Permitees if during the responsible removal of the soil nails the
Lessee's property is damaged due to lack of support.
(c) The Lessee further agrees that it will indemnify the Lessor for any damages incurred by
Permittees of the Lessor, if during the normal course of their business their equipment or facilities are
damaged in connection with the installation of the soil nails or de- watering wells on the Premises.
i. The Lessee acknowledges that it is aware of the existing utilities in the area to be
leased and agrees that it will submit plans of its proposed installations to the affected utility
companies for review and concurrence. The Lessee further agrees that it will provide the Lessor
with copies of written documentation from each utility that they have reviewed the proposed
installation and concur with the plans to avoid and protect the existing utilities and to mitigate any
damages. Such documentation will be submitted to Lessor prior to any work being conducted on
the Premises by Lessee.
ii. The Lessee agrees that it will not damage utility facilities presently existing and will
repair at its cost such facilities if damage occurs due to its work within the right of way. Lessee
further agrees that it will indemnify and hold harmless the Lessor and all utility companies
presently occupying the right of way as a consequence of Lessee's action.
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(d) The designer of the shoring system, Coggins & Sons, Inc. of Littleton, Colorado has required
regular monitoring of the excavation during construction. The Lessee agrees to include the Lessor in the
distribution list for the results of the monitoring. Monitoring results will be sent in a timely manner to
CDOT Materials and Geotechnical Branch
Attention: Mark Vessely.
4201 East Arkansas Avenue.
Denver, CO 80222
970 - 618 -3284
(e) Lessee further agrees to provide prompt notification of any indications of failure, including
but not limited to soil or pavement cracking, to the party noted above and to the following parties,
James Pitkin, Senior Supervisor
970 -471 -1242
Larry Dungan, Vail TM -111
970 - 845 -8816 Office
970- 471 -9768 Cell
David Lykins
970 -845 -1027 Office
970 -401 -2326 Cell
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IN WITNESS WHEREOF, the parties hereto have executed this lease agreement on the day and year
first above written.
LESSEE:
Vail Development, LLC
(Full Legal Name)
(If Corporation) By
Attest (Seal) (Nam ouG.uas 4 �PSy�rt�
Title \� lGel MAN C. IF )L
JIM
2b- 121- 72-9L-
Secretary Federal Tax Identification Number
" nYLesale1.
STATE OF GeEe tBO )
COUNTY OF ACWX --F v� � ss
The foregoing instrument was subscribed and sworn to before me this / day of
by �ovgias G � ps):/ V
Witness my hand and official seal.
My commission expires /-V-07
44 a m�w u
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Address:
ATTEST:
DOUGLAS W. BENNETT
Chief Clerk for Right of Way
Notary Public
56 s. s ►xth S +, sic No M ks, iuN 5540 z.
LESSOR:
COLORADO DEPARTMENT OF
TRANSPORTATION
CRAIG SIRACUSA, P.E.
Chief Engineer
Page 8 of 8
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