HomeMy WebLinkAboutEasement AgreementsRECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
Black Diamond Resorts - Vail LLC
c/o Capital Real Estate, Inc.
50 South Sixth Street, Suite 1480
Minneapolis. Minnesota 55402
Attention: Manager
EAGLE CGUNTY, CO
0702943
02/002/2067
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EASEMENT AGREEMENT
This EASEME?VT AGREEMENT ( "Agreement ") is made effective as of this � day of
January 2007, by and between Vail Development, LLC, a Delaware limited liability company ( "Vail
Development ") and Black Diamond Resorts - Vail LLC, a Delaware limited liability company
(together, "Black Diamond ") and Scorpio Condominium Association, a Colorado nonprofit
corporation (hereinafter referred to as the "Association ").
RECITALS
WHEREAS, Vail Development currently owns and intends to convey to Black Diamond,
certain real property located in the Town of Vail, County of Eagle, State of Colorado (the 'Black
Diamond Property ") as more particularly described on Exhibit A hereto, on which Black Diamond
intends to develop a hotel and resort complex (the "Resort").
WHEREAS, the Association manages the common elements on behalf of the unit owners
pursuant to the Scorpio Condominium Declaration and has the authority to grant easements for use
of the common elements of the Scorpio Condominium. The Scorpio Condominium is located in the
Town of Vail, County of Eagle, State of Colorado, as more particularly described on Exhibit B
attached hereto, with improvements including, but not limited to, a condominium building (the
common elements and all improvements shall hereinafter be referred to as the "Scorpio Property").
WHEREAS, Black Diamond desires to acquire from the Association and the Association is
willing to grant to Black Diamond, the easements more particularly described herein, in accordance
with the terms, conditions and provisions contained herein.
WHEREAS, the Association desires to acquire from Black Diamond, and Black Diamond is
willing to grant to the Association, the easements more particularly described herein, in accordance
with the terms, conditions and provisions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Easements Granted by Association. The Association hereby grants to Black
Diamond and its successors and assigns, the following easements (collectively, the
"Easements ") upon the terms and conditions herein described: _
DMWEST#6451901 V12
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• 1.1 Rock Wall Easement.
(a) Temporary North Easement for Rock Wall and Sidewalk
Construction. A temporary, non - exclusive easement (the "Temporary
North Easement ") over, across, under and upon the northerly ten (10) feet of
the Scorpio Property (the "Temporary North Easement Area "), as
generally depicted on Exhibit C hereto, for the construction of a rock wall
sidewalk and a drainage system consisting of a drain (or drain tile), all
contained within the Town of Vail Frontage Road right -of -way (collectively,
the "Rock Wall "). The Rock Wall shall be constructed and installed by
Black Diamond, at its sole cost, expense and risk, and be of the design and of
the materials approved by the Town of Vail as a part of certain streetscape
and sidewalk improvements required by the Town of Vail to be made to the
Frontage Road right -of -way. The Association acknowledges and agrees that
the installation of the Rock Wall will require a permanent change to the
grades on the Scorpio Property in the northeast portion of the Temporary
North Easement Area. The drain (or drain file system) installed north of the
Rock Wall shall direct runoff from the area between the sidewalk and the
Rock Wall away from the Scorpio Property and into an underground drainage
system. Black Diamond's work in the Temporary North Easement Area shall
be conducted in such a manner so as to not damage any trees within the
Temporary North Easement Area. In the unlikely event that any trees are
damaged, Black Diamond shall replace such trees at its cost and expense.
• (b) Town of Vail. After installation and inspection, the Rock
inspech ,
Wall shall be accepted by the Town of Vail from Black Diamond in
accordance with the terms of the memorandum of understanding between
Black Diamond and the Town of Vail and thereafter, the Town of Vail shall
bear any and all cost and expense (without right to indemnification or
contribution from the Association) related, directly or indirectly to the
maintenance, repair and replacement of the Rock Wall. Until the Town of
Vail accepts the Rock Wall, Black Diamond shall bear any and all cost and
expense related directly or indirectly to maintenance, repair or replacement of
the Rock Wall.
1.2 Shoring Easement.
(a)) Easement. A below ground easement (the "Shoring
Easement ") located within the easterly fourteen (14) feet of the Scorpio
Property at a depth equal to or greater than nine (9) feet below the elevation
of the Scorpio condominium building slab and three (3) feet below ground
elevation of all Scorpio Property outside of the footprint of the condominium
building (the "Shoring Easement Area "), as generally depicted on Exhibit
D hereto, to permit the installation and existence of soil nails ( "Soil Nails ").
The Soil Nails shall be placed below the Scorpio Property and designed and
installed pursuant to plans and specifications described in Exhibit E hereto
and incorporated by this reference (the "Plans ") previously reviewed by the
DMWEST #6451901 v12 2
v
0 Association and by AMEC Earth and Environmental, Inc., the Association's
consulting engineer ( ".AMMEC ").
(b) Black Diamond's Shoring Easement Covenants.
(i) Black Diamond has caused its engineers, contractors
and subcontractors to prepare Plans that are good and sufficient for
the safe execution of all work to be undertaken in the Shoring
Easement Area;
(ii) Black Diamond shall cause all of its engineers,
contractors and subcontractors to complete the work within the
Shoring Easement Area in compliance with the Plans and in a safe
and workmanlike manner;
(iii) Black Diamond shall not make any material change(s)
in the Plans or the work to be completed pursuant to the Plans
without first providing prior notice of any such change and a copy of
the revised Plans, if any, to the Association;
(iv) Black Diamond shall instruct its general contractor to
allow access onto the Black Diamond Property to representatives of
the Association to observe the progress of work in the Shoring
Easement Area All access by Association representatives will be
coordinated through Black Diamond's on -site representatives; and
(v) Black Diamond shall install the Soil Nails in such a
manner so as to not damage the Association's surface parking lot or
improvements on the Scorpio Property. Black Diamond shall restore
any damaged area of the surface parking lot or the improvements to
the same or better condition that existed prior to installation of the
Soil Nails.
(c) Termination of Shoring Easement. Black Diamond's right to
install Soil Nails in the Shoring Easement shall terminate upon completion of
the Resort or after December 31, 2009, whichever first occurs. The
Association acknowledges that the Soil Nails will remain in the Shoring
Easement Area unless removed by the Association. At any time after
December 31, 2009, the Association may remove (at its sole cost and
expense) any Soil Nails without terminating or limiting Black Diamond's
indemnity obligations under this Agreement.
1.3 Temporary East Easement. A temporary, exclusive easement (the
"Temporary East Easement ") over, under, across and upon the easterly six (6) feet
of the Scorpio Property (the "Temporary East Easement Area "), as generally
depicted on Exhibit F hereto, for: (1) the installation of a sidewalk and related
improvements wholly within the Black Diamond Property; (2) the replacement of the _
existing grate drain on the east end of the parking lot on the Scorpio Property with an
DMWEST #645190102
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underground drain wholly contained within the Scorpio Property; and (3) the
installation of curb and gutter improvements to divert surface drainage waters from
the Scorpio Property into the new underground drain wholly contained within the
Scorpio Property. The drain, curb and gutter improvements shall be designed to
Town of Vail Standards. Black Diamond's work in the Temporary East Easement
Area shall be conducted in such a manner so as to not damage or effect the operation
of the Association's electric transformer located therein. The Temporary East
Easement shall terminate upon the earlier of written notice of Black Diamond, or its
successor or assigns, that the Temporary East Easement is no longer required or upon
completion of the sidewalk and related improvements and recordation of an easement
to the Town of Vail for the sidewalk and related improvements.
1.4 Reasonable Use of Easements. The easement rights granted pursuant
to this Agreement shall include the reasonable right of access through the Scorpio
Property required to access the Easements when no other access is reasonably
available, and shall at all times be exercised in such a manner as to not materially
interfere with or obstruct the use of the Scorpio Property. No public access to and
from adjacent rights -of -way shall be permitted by this right of access. The
Association reserves the full right to undisturbed ownership, use and occupancy of
the Scorpio Property, including the easement areas granted herein insofar as said
ownership, use and occupancy are consistent with and do not impair the limited
rights granted to Black Diamond herein.
(W 1.5 Construction; Repair and Restoration Activities. The construction,
installation, replacement and repair work contemplated by Sections 1.1, 1.2 and 13
hereof shall be performed by Black Diamond and its agents, contractors, successors
and assigns at the sole cost, expense and risk of Black Diamond (or its successors and
assigns) and: (i) once commenced, shall be performed continuously and diligently to
minimize the duration of the work; (ii) shall be lien -free; and (iii) shall be conducted
in compliance with all applicable town, county, state or federal building or other
regulatory requirements and shall be performed within any daily work hours and
noise requirements set by the Town of Vail. Black Diamond shall provide to the
Association a proposed schedule for all work and Black Diamond shall provide
reasonable advance notice of its scheduled entries onto the Scorpio Property to
perform all or any part of the work. Black Diamond shall restore and revegetate any
areas of the Scorpio Property that are damaged as a result of the work to the same or
better condition that existed prior to Black Diamond's use of the Easements at Black
Diamond's sole expense within thirty (30) days of completion of the portion of the
work conducted on the Scorpio Property, season permitting.
1.6 Unauthorized Entry Damages. Black Diamond, its contractors or
agents shall immediately cease any activity on the Scorpio Property not contemplated
by the Easements granted by this Agreement upon oral or written notice from the
Association or its agent. Such activity shall be deemed an unauthorized entry and if
such activity continues for more than one (1) business day after written notice from
the Association to Black Diamond, such activity shall then be a trespass and Black
Diamond shall be liable to the Association for the sum of Five Thousand Dollars
DMWEST #6451901 02 4
($5,000.00) as trespass damages plus Five Hundred Dollars ($500.00) per diem for
each day that such trespass violations continue.
1.7 Storage of Equipment / Debris. Black Diamond shall not place or
store any materials, vehicles, equipment or debris on the Scorpio Property at any time
except in connection with staging for or prosecution of work in the Easements. No
debris shall be placed or stored on the Scorpio Property at any time.
1.8 Easement Payment. Within thirty (30) days of the date of execution
of this Agreement, but in any event prior to any entry by Black Diamond onto the
Scorpio Property for the commencement of any work, Black Diamond shall pay the
Association the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) in Good
Funds as defined by Colorado statutes as compensation for the Shoring Easement.
There is no compensation payable for the Temporary North Easement and the
Temporary East Easement.
2. Rights and Easements Granted By Black Diamond.
2.1 Scorpio Shoring Easement. In consideration of the grants to Black
Diamond herein and the cost of removal of the Soil Nails, Black Diamond grants to
the Association, effective upon completion of the Resort, a temporary non - exclusive
below ground easement located within the westerly twenty -four (24) feet of the Black
Diamond Property at a depth equal to or greater than nine (9) feet below the elevation
of any vertical improvements, which vertical improvements are specifically defined
to include the electric transformers in the Northwest comer of the Black Diamond
Property, constructed on the Black Diamond Property and three (3) feet below
ground elevation of all Black Diamond Property outside the footprint of any vertical
improvements (the "Scorpio Shoring Easement Area "), to permit construction,
installation and existence of soil nails below the foundation of any improvements or
structures under which such soil nails will be driven The soil nails shall not be
attached to or designed as part of a permanent foundation structure. The soil nails
shall be designed and installed pursuant to plans and specifications that shall be
approved by Black Diamond or its successors and assigns in advance of construction
(which consent shall not be unreasonably withheld, conditioned or delayed). The soil
nails may (or at the request of Black Diamond, shall) remain in place upon
completion of construction of such building improvements. The Association will
undertake the same or similar precautions undertaken by Black Diamond in this
Agreement to protect the Black Diamond Property.
2.2 Easement Payment Prior to any entry by the Association onto the
Black Diamond Property for the commencement of any work in the Scorpio Shoring
Easement Area, the Association shall pay Black Diamond Fifty Thousand and no /100
Dollars ($50,000) in good funds as defined by the Colorado statutes as compensation
for the grants contained herein and the cost of removal of the Soil Nails.
2.3 Termination of Scorpio Shoring Easement. Upon completion of any
improvements on the Scorpio Property in connection with which the Association
DMWEST #6451901 Y12 5
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utilizes the Scorpio Shoring Easement to install soils nails within the Scorpio Shoring
Easement Area, the Association agrees that Black Diamond or its successors and
assigns, may elect, in its sole discretion, to terminate all right, title and interest of the
Association in the Scorpio Shoring Easement Area. Any time after completion of
such improvements, Black Diamond may remove (at its sole cost and expense) any
soils nails without terminating or limiting the Association's indemnity obligations
under this Agreement.
3. Covenants.
3.1 Indemnity. The parties hereto agree to indemnify and hold the other
harmless from and against any and all loss, claims, loss of use, damages, demands,
causes of action, liabilities and costs (including reasonable attorneys' fees and
litigation expenses, whether an action is commenced or not) arising from or caused
by the acts of such parties, their respective successors and assigns, or their
employees, agents, contractors, subcontractors or materialmen in performance of any
work contemplated by this Agreement and the use of the Easements.
3.2 Reimbursement. Black Diamond has previously reimbursed the
Association Thirty-Five Thousand and no /100 Dollars ($35,000) and paid directly to
AMEC an additional One Thousand Twelve and 50 1100 Dollars ($1,012.50) for
certain costs incurred by the Association with respect to its evaluation of the
Easements granted hereby and the work to be undertaken within the Easements.
Black Diamond shall reimburse the Association an additional Forty -Five Thousand
and no /100 Dollars ($45,000) for additional costs incurred in such evaluation. Such
reimbursement shall be paid to the Association contemporaneously with the
Easement Payment required by Section 1.8 of this Agreement. If, after the date of
this Agreement, in connection with any changes in the work contemplated by this
Agreement, the Association believes that it needs to obtain the professional opinion
of engineering consultants to evaluate the changes, Black Diamond will reimburse
the Association for the cost of such engineering consultants so long as: (i) the
Association gives Black Diamond prior written notice of its intent to retain the
engineering consultants; and (ii) the Association provides to Black Diamond a not -to-
exceed budget for the engineering consultant's work, reasonably acceptable to Black
Diamond. In addition to any reimbursement pursuant to the preceding sentence, to
reimburse the Association for costs incurred in the administration of this Agreement
and monitoring of the changes in work contemplated in the Shoring Easement, Black
Diamond will pay to the Association an amount not to exceed Fifteen Thousand and
no /100 Dollars ($15,000). Except as specifically provided in the two preceding
sentences, Black Diamond shall have no further reimbursement obligations under this
Agreement.
3.3 Further Actions. If significant movement (defined as one quarter inch
or more in any plane or direction) of the Scorpio building is detected, then Black
Diamond shall cause its contractors to take appropriate remedial action to limit
subsequent movement or deflection.
DMWEST #&45190102 6 A (�r
4. Black Diamond Warranties and Representations. Black Diamond warrants
and represents as follows:
4.1 Liability Insurance. Black Diamond shall provide a copy of its
general liability insurance policy with all endorsements to the Association when
received by Black Diamond and, in any event, prior to commencing any work within
the Easements. The general contractor and all subcontractors performing any work in
the Easements shall be enrolled to participate in Black Diamond's general Iiability
insurance policy. Black Diamond shall provide independent certification of
enrollment of the subcontractors performing excavation, dewatering, shoring and
foundation work prior to commencement of work by such contractors. The policy
shall provide for 30 days' notice of cancellation. The policy shall be written on the
sample or specimen forms of general liability insurance policies previously provided
to the Association and shall have no exclusions for soils conditions. Prior to
commencement of work in the Easements, Black Diamond shall provide the
Association with a certification issued by Black Diamond's insurance broker
confirming that the entire premium for the term of the policy has been paid.
4.2 Government Approvals. Black Diamond has or shall have obtained
all required permits and approvals from the Town of Vail and other governmental
authorities having jurisdiction for all activities which Black Diamond intends to
perform upon the Scorpio Property and for its excavation and shoring on the Black
Diamond Property. The grant of the easements in this Agreement by the Association
is contingent upon final approval of these activities and these conveyances by the
Town of Vail and other governmental authorities having jurisdiction. By
commencing any activity upon the Scorpio Property, Black Diamond represents and
warrants to the Association that it has obtained all such permits and approvals.
4.3 Compliance with Dewaterin Plans. Black Diamond shall instruct its
contractors to conduct all dewatering activities on the Black Diamond Property in
accordance with: (i) the Amended Plan dated January 26, 2007, submitted to and
approved by the Town of Vail; and (ii) in compliance with all requirements of the
permits issued by the Town of Vail. The Association shall have the right to review
the Rossum Sand Tester logs maintained by Black Diamond or its agents on the
construction site.
4.4 Insurance Certificate. Attached hereto as Exhibit G is a Certificate of
Insurance specifying the term, coverages, policy amounts and notice of cancellation
requirement that will be maintained for the entire term of the policy.
DMWEST #645190102 7
5. . No Rights in Public; No Implied Easements. Nothing contained herein shall
be construed as creating any rights in the general public or as dedicating for public use any
portion of the Easement Areas, the Scorpio Property or the Black Diamond Property. No
easements, except those expressly set forth in Sections 1 and 2 shall be implied by this
Agreement.
6. Default; Expenses of Enforcement.
6.1 Events of Default. Any material violation of the provisions of this
Agreement shall be deemed a default by Black Diamond of this Agreement (each an
"Event of Default ").
6.2 Default. Each party hereto shall have the right to prosecute any
proceedings at law or in equity against any defaulting party hereto, or any other
person, violating or attempting to violate or defaulting upon any of the provisions
contained in this Agreement, and to recover both equitable relief and monetary
damages for any such violation or default. Such proceeding shall include the right to
restrain by injunction any violation or threatened violation by another of any of the
terms, covenants or conditions of this Agreement, and to obtain a decree to compel
performance of any such terms, covenants, or conditions, it being agreed that the
remedy at law for a breach of any such term, covenant, or condition (except those, if
any, requiring the payment of a liquidated sum) is not adequate. All of the remedies
permitted or available to a party under this Agreement or at law or in equity shall be
cumulative and not alternative, and invocation of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any other permitted or
available right or remedy.
6.3 Expense of Enforcement. If either party brings an action at law or in
equity to enforce or interpret this Agreement, the prevailing party in such action shall
be entitled to recover reasonable attorney's fees and court costs for all stages of
litigation, including, but not limited to, demands and mediation efforts prior to
commencement of any proceeding and appellate proceedings, in addition to any other
remedy granted.
7. Miscellaneous.
7.1 Amendment. The parties agree that the provisions of this Agreement
may be modified or amended, in whole or in part, or terminated, only by the written
consent of the parties hereto (or the parties' successors and assigns).
7.2 No Waiver. No waiver of any of the provisions of this Agreement
shall be deemed to constitute a waiver of any other provision herein, nor shall such
waiver constitute a continuing waiver unless expressly agreed in writing, nor shall
any waiver of any default hereunder be deemed a waiver of any subsequent default
hereunder. No waiver of any default or any obligation by any party hereto shall be
implied from any omission by the other party to take any action with respect to such
default.
DMWEST #6451901 v12 8 A
(W 7.3 Covenants to Run with Land. The easements, covenants, conditions,
restrictions, rights and obligations set forth herein shall run with the land and create
equitable servitudes in favor of the real property benefited thereby, shall bind every
person having any fee, leasehold or other interest therein and shall inure to the benefit
of the respective parties and their successors, assigns, heirs, and personal
representatives.
/A Notices. Notices or other communication hereunder shall be in
writing and shall be sent certified or registered mail, return receipt requested, or by
other national overnight courier company, or personal delivery. Notice shall be
deemed given upon receipt or refusal to accept delivery. Each party may change
from time to time their respective address and/or telephone and fax numbers for
notice hereunder by like notice to the other party. The notice addresses of the
Association and Black Diamond are as follows:
Association: Scorpio Condominium Association
P. O. Box 1767
Avon, Colorado 81620
Attention: Association President
Phone: (970) 926 -3416/ Fax: (970) 926 -4263
With a copy to: Bill Hardin
601 Wellesey Drive
(W Houston, Texas 77024
Phone: (713) 252 -1114/ Fax: (713) 476 -5440
And to: Ronald I Snow, Esq.
McGloin, Davenport, Severson & Snow P.C.
1600 Stout Street, Suite 1600
Denver, Colorado 80202 -3103
Phone: (303) 863- 9800/Fax: (303) 571 -1600
E -mail: rons@mdsslaw.com
Black Diamond: Vail Development, LLC and
BIack Diamond Resorts - Vail LLC
50 South Sixth Street, Suite 1480
Minneapolis, MN 55402
Attention: Manager
Phone: (612) 313 -2500 / Fax: (612) 313 -0136
BMWEST #6451901 v12 9
With a copy to: Kathleen A Martin, Esq.
Malkerson Gilliland Martin LLP
220 South 6t' Street, Suite 1900
Minneapolis, MN 55402
Phone: (612) 344 -111 I/Fax: (612) 344 -141
And to: W. Michael Clowdus, Esq.
Ballard Spahr Andrews & Ingersoll, LLP
1225 —17' Street, Suite 2300
Denver, Colorado 80202 -5596
Phone: (303) 292 - 2400 /Fax: (303) 296 -3956
And to: Mike Culligan
Senior Project Manager
Layton Construction
P.O. Box 2710
Vail, Colorado 81658 -2710
Mark Reed
Project Superintendent
Layton Construction
One Vail Road
Vail, Colorado 81657
Phone: (970) 479 -5389
Fax: (970) 479 -5916
7.5 Governing Law. The laws of the State of Colorado shall govern the
interpretation, validity, performance, and enforcement of this Agreement.
7.6 Estoppel Certificates. Each party hereto, within twenty (20) days of
its receipt of a written request from the other party, shall from time to time provide
the requesting party a certificate binding upon such party stating: (a) to the best of
such party's knowledge, whether any party to this Agreement is in default or violation
of this Agreement and if so identifying such default or violation; and (b) that this
Agreement is in full force and effect and identifying any amendments to the
Agreement as of the date of such certificate.
7.7 Bankruptcy. In the event of any bankruptcy affecting any party, the
parties agree that this Agreement shall, to the maximum extent permitted by law, be
considered an agreement that runs with the land and that is not rejectable, in whole or
in part, by the bankrupt person or entity.
7.8 Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall constitute one and the same instrument.
7.9 Representations. Each of the parties hereto hereby represents and
- warrants to -the other party that they have the express authority-and power to enter
(W
DMVdEST #6451901 02 10
(W into this Agreement and to grant the Easements set forth herein. Further, the parties
represent and warrant to the other party that the individuals executing this Agreement
on behalf of said party have the unqualified authorization and authority to execute
this Agreement and bind said party to the express terms hereof
7.10 Compliance with Laws. Black Diamond shall comply with and give
notices required by any laws, ordinances, rules, regulations, and lawful orders of
public authorities bearing on performance of any work or other activity on the
Scorpio Property, including but not limited to the Town of Vail Building Code in
effect at the time of construction.
7.11 Severability. In the event that any of the provisions of this Agreement
are held to be invalid or unenforceable, in whole or in part, all other provisions will
nevertheless continue to be valid and enforceable, with the invalid or unenforceable
parts severed from the remainder of this Agreement.
7.12 Entire Agreement. Black Diamond and Association agree that there is
no representation, warranty, collateral agreement or condition affecting this
Agreement except for that certain Holy Cross Energy Underground Right of Way
Easement dated September 20, 2006, that certain Indemnification and
Reimbursement Agreement (undated), and that certain Reimbursement Agreement
dated March 17, 2006.
7.13 Actions of the Association. Any action taken or agreement by the
(W Association contained herein is solely the action of the Association and is not
intended to bind any individual Scorpio Condominium unit owner or create any unit
owner liability to Black Diamond or any other party.
[Remainder of Page Intentionally Left Blank]
DMWEST #6451901 02 11
Attachments:
Exhibit A - Legal Description of Black Diamond Property
Exhibit B - Legal Description of Scorpio Property
Exhibit C - Depiction of Temporary North Easement Area and Permanent Rock Wall Footing
Easement Area
Exhibit D - Depiction of Shoring Easement Area
Exhibit E - Association Approved Plans and Specifications for the Soil ?`Tails
Exhibit F - Depiction of Temporary East Easement Area
Exhibit G - Insurance Certificate
DMWEST #6451901 v12 12 P--- `�
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year
first written above.
STATE OF MINNESOTA
�Sl
COUNTY OF HENNEPIN
"BLACK DIAMOND"
BLACK DIAMOND RESORTS - VAIL LLC,
a Delaware limited liability company
Bv:
chard J. Hausfir
Its: President
This instrument was acknowledged before me on R), 2007, by Richard J.
Hauser, the President of Black Diamond Resorts - Vail LLC, a Delaw a limited liability company,
on behalf of the limited liability company.
Dated: I-30-b7-
Notary Public
CHARLOTTE MARIA SCHII
NOTARY PUBLIC
STATE OF MINNESOTA
MY COMMISSION EXPIRES 01/312011
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
"VAIL DEVELOPMENT"
VAIL DEVELOPMENT, LLC, a Delaware
limited liability company
By: ,
J. Hauser, i o- Manager
This instrument was acknowledged before me on - dGtm� � 2007, by
Richard J. Hauser, Co- Manager of Vail Development, LLC, a DelawadAimited liability company.
Dated: 1 - 30 - D 7
CHARLOTTE MARIA SCHU
NOTARY PUBLIC
STATE OF MINNESOTA
W COMMISSION EXPIRES 0113112012
Notary Public
OMWEST #645190102 ly Y
1
il'
"ASSOCIATION"
SCORPIO CONDOMINIUM ASSOCIATION
iff �/ t
STATE OF COLORADO )
ss.
COUNTY OF )
c- ins t w acknowledged before me j , 2007, by
7. inntw the of Scorpio
Condominium Assocfiaiion, a Colorado nonprofit corporation.
Dated: %
y�P�op
' Pv 'Ll
ACM
BMWEST #6451901 A2 14
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of I I '
LEGAL DESCRIPTION OF BLACK DIAMOND PROPERTY
A part of Lots A, B and C of Amended Map of Sheet I of 2 of Vail Village, Second Filing, Eagle
County, Colorado, being more particularly described as follows:
Commencing at the Northeast corner of Section 7, Township 5 South, Range 80 West of the
Sixth Principal Meridian; thence along the East line of the Northeast Quarter of the Northeast
Quarter of said Section 7, and referring all bearings contained herein to said line, S00 °09'28 "W,
a distance of 39.20 feet thence departing said line N79 °08'45 "W, a distance of 25.44 feet to the
Northeast corner of said Lot A and the Point of Beginning of the herein described parcel of land;
thence along the East line of said Lot A and the West right -of way line of Vail Road (50' wide)
S00 °09'28 "W, a distance of 125.00 feet; thence continue along said Iine S00 °09'28 "W, a distance
of 29.15 feet to the Northeast corner of Condominium Map for the Holiday House as recorded in
Book 229 at Page 936; thence along the North and West boundaries of said Condominium Map.
The following five (5) courses and distances:
1) N73 °4344 "W, 156.13 feet;
2) S28 °00'55 "E, 67.00 feet;
3) S61 °59'05 "W, 18.27 feet;
4) S28 °00'55 "E, 86.00 feet;
5) S74 °12'22 "W, 101.49 feet to intersect the North right -of -way line of West Meadow Drive
(50' wide); thence along said right -of -way line the following two (2) courses and
distances:
1) N67 °34'08 'W, 264.42 feet;
2) 58.51 feet along the arc of a curve to the left having a radius of 525.00', a central angle of
6 °23'09" and a chord which bears N70 °45'43 "W, 58.48' to the Southwest comer of said
Lot C;
thence along the West line of said Lot C N10 °51'15 "E, a distance of 251.25 feet to the Northwest
corner of said Lot C; thence along the North line of said Lot C S79 008145 11E, a distance of 300.00
feet to the Northeast comer a said Lot C and the Northwest comer of said Lot A; thence along
the North line of said Lot A S79 008'45 "E, a distance of 152.65 feet to the Point of Beginning.
Containing 118765 square feet or 2.726 acres of land more or less.
Bearings are based on State Plane Coordinates, Colorado Central Zone.
DMWEST #645190102 A -I fit
EXHIBIT B
LEGAL DESCRIPTION OF SCORPIO PROPERTY
Scorpio Condominiums, according to the Condominium Map recorded January 26, 1982 in Book
3.335 at Page 436 and as defined and described in the Condominium Declaration recorded January 26,
1982 in Book 335 at Page 440, County of Eagle, State of Colorado_
DMWEST #6451901 v12 B -1
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EXHIBIT C
DEPICTION OF TEMPORARY NORTH EASEMENT AREA AND PERMANENT
ROCK R'ALL FOOTING EASEMENT AREA
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DMWEST #6451901 02 C -1
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EXHIBIT D
DEPICTION OF SHORING EASEMENT AREA
EXHIBIT 0
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boss .da— my detect n thi. e�Lit n-lhin thrk rew: ofie you lrsf i
dSssvvex y ch defect to no event may my action baud upon ony detect �1
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crfb_M9tien 3nOKi e+ hereon fDMAaf: BUA SS CUf n — pY3Y 91
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DMWEST #6451901 v12
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10
ASSOCIATION APPROVED PLANS AND SPECIFICATIONS ( "PLAINS ")
FOR THE SOIL NAILS
The Plans consist of the Plans from Coggins & Sons, Inc., Job No. 5158, described as Earth
Retention Four Seasons Hotel and Resort consisting of.
1. Caisson Drilling, Excavation Shoring, Tieback Anchors Plans dated August 28, 2006,
Pages 4, 7 and 8 of which are reduced and attached to this Exhibit E as Sheets E -1, E -2 and E -3;
and
2. The Structural Design Calculations Earth Retention System dated June 15, 2006 as
supplemented by letters dated August 30, 2006, September 27, 2006 and October 16, 2006.
DMWEST #6451901 v12 E-1
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EXHIBIT F
DEPICTION OF TEMPORARY EAST EASEMENT AREA
EXHIBll F
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DMWEST#6451901 v12 F-1
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DMWEST#6451901 v12 F-1
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Ial- :11 :1Y�l'1
NSURANCE CERTIFICATE
ACORD„ CERTIFICATE OF LIABILITY
DATE 01/2 /200 Y'
INSURANCE of /2s /z�7
I-- (303)824-660C) FAX ( 303) 370 -0118
Moody 1 nsurance Agency, Inc.
Cherry
3773 Cher Creek North Drive
Suite 800
Deriver, CO 80209 -3804
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE
NAIC d
usuREo Black Diamond Resorts - Vail, LLC
C/O Capital Real Estate, Inc
50 South 6th Street, Suite1480
Minneapolis. MN 55402
x>StIRERA LLOydS of London
POLICY EFPECft
mu;" a Interstate =ire & Cas. Co.
tLdlfS
wwRERC Axis Surplus Ins CD.
WSURERDI_Lexington Ins. Co.
GENauLLIAeurY
NSURER E
12/ 20 /2006?06i2012009;
THE POLICIES OF BdSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE RYSLIRED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWiTHS'. AA DING
ANY REQUIRE MEW, TERM OR CON[XTION OF ANY CONTRACT CR OTHER DOCLAWNT Wf i )S RESPECTT'O'A"CH THIS CERTIFICATE MAYBE ISSUED OR
MAY PERTAN. THE INSUFUWCE AFFORDED BY THE DOUCIES DESCRIBED HEREN IS SUBJECT TO ALL THE TERMS, EXCLUSIQNS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LM TS SFOWN MAY HA -. BEEN REDUCED BY PAID CLAW.
TYPE OF INSURANCE
POLICY NUISM
POLICY EFPECft
!•013C'Y Ot!•wA71RN
tLdlfS
GENauLLIAeurY
618/A61635013/013
12/ 20 /2006?06i2012009;
:EAcHOCURRBCE
s 2,000,0
X COMMERCIAL GENERAL DAetlrY
'
oAAAAC;E TO RENT®
MFYiCFC (P. ,v.a�.
5
CLAIMS MADE M OCCUR
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5 5.00(
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PHtVONN,AADIMLRRY
s 2,000, OCK
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GENt AGG$GATE LDIR APPLIES PER
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CO. B PFX10OD624
12/20/2006
05 /20 /2009'EAGHOCCURRBCE
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12/20/2006
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AGATE
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----- ---
1VORI(ERS COMPENSATION ANO
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1.4STAIIJI OTµ
ANY PROfYiETTXiPARINER/FJ�LJTME
PFK*tSIVO
EL EACH ACODENT
S
EL DISEASE -EAEMPLDM
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-NSER 000.=3DED?
tl yg Olenie 1@0
SPECIAL. PRnNASK)"stabs
E.L DISEASE - POLICY LINK
S
OTIiR
F3C341PTION OF 00VAKPIDNS I L.00ATAM I WMCLES I EXW111IO SADOW aY ERDDNSEENT I SPECIALPRUVISONS
e: New construction of one, modified fire resistive 10 -s-_Dry resort hotel and condominium 'ocated at
e Vail Rd., Vail, CO 81657
econd Layer Excess Liability: Policy #ELU730184/01 /2006 S;0.000,000 xs $5,000,000 Limit -Axis Company C
hird Layer Excess Liability: Policy k 2014537 525.000,000 xs $25,000,000 Limit - Lexington Company D
CERTIFICATE HOLDER CANCELLATION _
SHOULD ANY GF THE ABOVE D=S ED POL1ClL5 IIE CARL_ BEFDRE TIE
EDRATION DATE THEAEAP, THE 6SWNG f MiliII I—&MAXWAU MAL
300_ DAYS WR rFEN NORM TO TIM CEATIFICATE MOLDER NMIa TO THE LEFT,
Scorpio Condominium Association �)kOOCXd4YF�tiFaXIYn1 XX.
131 West Meadow Drive K#U0W" *K XXXXXXXX:
Va r I , CO 81657 ALTHDRIZE ffi REPRESETAATNE
Sandra Thomas, CICAELDAN
ACORD 75 (21111IMM
DMWEST #6451901 v12 G -1
CACORD CORPORATION 1988
IMPORTANT
U the certificate holder is an ADDITIONAL INSURED, the pofcy{ies) must be endorsed. A statement
on this cartificate does not confer rights to the certificate holder in lieu of such endorsement(s)-
if SUBROGATION tS WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement. A statement or this oertificate does not confer rights to the cite
holder in lieu of such endorsements)-
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between
the issuing tirsurer(s), authorized representative or producer, and the cmrifficate holder, nor does it
affirmatively or negatively amend, extend or after the coverage afforded by the policies listed thereon.
ACORD 25 (20DIM)
DMVHEST #6451901 02 G_ 2
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`"w izeee
REC: S56-00 06C: S
RIGHT OF ENTRY AGREEMENT
AND
GRANT OF TEMPORARY ENCROACHNIENT EASEMENT
THIS RIGHT OF ENTRY AGREEMENT AND GRANT OF TEMPORARY 11
ENCROACHMENT EASEMENT ("Agreement" or "Right of Entry") is made effective as of S6
August a4, 2006, by and between Black Diamond Resorts — Vail, LLC, a Delaware limited
liability company and Vail Development, LLC, a Delaware limited liability company
(collectively "Vail Development ") and Alphom Condominium Association, Inc., a Colorado
non -profit corporation ( "Association ").
RECITALS:
A. Vail Development intends to develop certain real property located in the Town of
Vail, County of Eagle, State of Colorado having a street address of One Vail Road,
Vail, Colorado 81657 and legally described in Exhibit A attached hereto (the "Hotel
Property ") as a hotel, condominium and resort complex pursuant to the Approved
Development Plan for Special Development District No. 36, Four Seasons Resort
(which, as hereafter amended or supplemented from time to time, is referred to as the
"Approved Development Plan "), which has been approved by the Town of Vail as
set forth in Town of Vail Ordinance No. 20, Series of 2005 (the "Ordinance ").
B. The Association is the association which represents the unit owners with respect to
the common elements of the Association Property, as hereafter defined, and such unit
owners collectively are the owners of that certain real property located in the Town of
Vail, County of Eagle, State of Colorado having a street address of 121 West
Meadow Drive, Vail, Colorado 81657 and legally described in Exhibit B attached
hereto (the "Association Property ")
C. Pursuant to the Approved Development Plan and the Ordinance, the Town of Vail
(the "Town ") has requested Vail Development to reconstruct certain drainage
improvements near the common boundary between the Hotel Property and the
Association Property that now serve the Association Property and to make certain
other improvements on or abutting the Association Property, including but not limited
to certain grading improvements, drainage improvements and pedestrian walkways,
as more particularly described in the Approved Development Plan and the Ordinance
and pursuant to the final construction plans for the same that are finally approved by
the Town (collectively, such reconstructed and new improvements are referred to
herein as the "Improvements") -
D. Prior to the date hereof, the Association has constructed a storage facility (the
"Storage Shed "), primarily on the Association Property, but the Storage Shed also
encroaches into the Hotel Property. The Association has agreed to eliminate the
encroachment of the Storage Shed, if a lender, purchaser or subsequent owner of the
Hotel Property requires the encroachment to be eliminated.
RETURN TO:
VAIL DEVELOPMENT
E. Vail Development desires the right to enter on to the Association Property for the
purposes of constructing the Improvements and desires to grant the Association a
temporary encroachment easement to permit the Storage Shed to remain in its current
location until such time as a lender, purchaser or subsequent owner of the Hotel
Property requires the encroachment of the Storage Shed on to the Hotel Property to be
eliminated.
F. The Association desires the right to enter on to the Hotel Property for the purposes of
constructing certain improvements to the Association building located on the
Association Property.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. Incorporation of Recitals. The foregoing recitals are fully incorporated herein.
2. Right of Entry. The Association hereby grants to Vail Development, and its
agents, employees, consultants, contractors, subcontractors and design
professionals (collectively, the "Vail Development Permitted Parties ") a right
of entry over, under, across and upon the Association Property (the "Vail
Development Right of Entry ") for the purposes of (a) conducting geo- technical,
surveying and other engineering tests, studies and analyses in connection with the
design of the Improvements, (b) preparing for construction of the Improvements
and constructing the Improvements, including without limitation the installation
of soil nails and (c) inspecting and testing the Improvements for compliance with
the requirements of the specifications and plans for the Improvements approved
by the Town (collectively, the "Vail Development Permitted Activities "). Vail
Development hereby grants to the Association, and its agents, employees,
consultants, contractors, subcontractors and design professionals (collectively, the
"Association Permitted Parties ") a right of entry over; across and upon the
portion of the Hotel Property described below (the "Association Right of
Entry") for the purposes of (a) delivery and storage of the roofing materials, (b)
the delivery and operation of a single crane for the transportation of the roofing
materials from the Hotel Property to the Association Property, and (c) delivery,
storage and removal of two (2) trash dumpsters, and (d) inspecting and testing of
the improvements made for the benefit of the Association for compliance with the
requirements of the specifications and plans approved by the Town (collectively,
the "Association Permitted Activities). The Association Right of Entry shall be
limited to that portion of the Hotel Property that comprises the western thirty feet
of the Hotel Property, bounded on the west -by the eastern boundary of the
Association Property and on the north and south by the northerly and southerly
edges of the eastern boundary of the Association Property (the "Association
DMWEST #6428934 v3 2
Entry Area "). The Association and the Association Permitted Parties shall
coordinate all Association Permitted Activities in the Association Entry Area with
Vail Development or, at Vail Development's request, with the general contractor
for the Hotel Property (the "Hotel General Contractor "), and shall comply with
the rules, regulations and safety precautions of Vail Development or the Hotel
General Contractor in connection with the Association Permitted Activities. The
Association acknowledges that there is currently a fence along the boundary of
the Association Entry Area, and agrees that the Association shall be responsible
for removing any such fencing as necessary for the Association Permitted
Activities and, prior to expiration or termination of the Association Right of
Entry, for replacing the fencing and restoring the property and landscaping or
improvements in the Association Entry Area.
3. Permitted Activities Only. The Vail Development Right of Entry does not permit
any activities other than the Vail Development Permitted Activities and the
Association Right of Entry does not permit any activities other than the
Association Permitted Activities
4. Indemnity. Vail Development shall indemnify and hold the Owners of the
Association Property, and the Association, its employees, officers, board
members and agents, harmless from and against any and all claims for property
damage, personal injury or death arising from any negligence, intentional
misconduct or illegal conduct of Vail Development, the Vail Development
Permitted Parties, or either of their agents, contractors, invitees or employees, on
or about the Association Property, and against all costs, reasonable attorneys'
fees, expenses and liabilities incurred in the defense of any such claim or any
action or proceeding brought thereon or in connection therewith; provided,
however, that the foregoing indemnity shall not extend to any claims related to
relocation or reconfiguration of the Storage Shed after written request for such
relocation has been made by Vail Development to the Association pursuant to
Section 7 hereof The Association shall indemnify and hold Vail Development
and its respective managers, employees, officers, members and agents, harmless
from and against any and all claims for property damage, personal injury or death
arising from any negligence, intentional misconduct or illegal conduct of the
Association, the Association Permitted Parties, or either of their agents,
contractors, invitees or employees, on or about the Hotel Property, and against all
costs, reasonable attorneys' fees, expenses and liabilities incurred in the defense
of any such claim or any action or proceeding brought thereon or in connection
therewith.
5. Condition Precedent. The Vail Development Right of Entry shall not be effective
until Vail Development has provided the Association with a certificate of Vail
Development's commercial general liability insurance in an amount not less than
$1,000,000.00 issued by an insurer licensed to do business in the State of
Colorado. The Association Right of Entry shall not be effective until the
Association and /or its Permitted Parties have provided Vail Development with a
DMWES? #6428934 v3 3
certificate of commercial general liability insurance in an amount not less than
$1,000,000.00 issued by an insurer licensed to do business in the State of
Colorado.
6. Term and Expiration. The Vail Development Right of Entry granted by the
Association to Vail Development shall commence immediately and shall
automatically expire upon the earlier of final completion of the Improvements or
March 31, 2009. The Association Right of Entry shall commence at 12:01 AM
('VIDT) on August 28, 2006 and shall automatically expire at 11:59 PM (MDT) on
September 8, 2006.
7. Temporary Encroachment Easement. Vail Development hereby grants the
Association a temporary encroachment easement to permit the Storage Shed to
remain in its current location until the earlier of (a) the date that the Storage Shed
is substantially damaged, destroyed or removed from its current location, or (b)
the date that is sixty (60) days after written notice is given by Vail Development
(or a successor in interest in Vail Development) that either (i) fee title to the Hotel
Property is being conveyed and the purchaser of the Hotel Property (or after such
fee title transfer has occurred, the subsequent owner of the Hotel Property)
requires that the encroachment of the Storage Shed into the Hotel Property be
eliminated, or (ii) a deed of trust or similar financing instrument will be filed
against the Hotel Property and the lender in such transaction requires that the
encroachment of the Storage Shed be into the Hotel Property be eliminated. The
temporary encroachment easement herein granted includes the right to enter upon
five (S) feet of the Hotel Property immediately adjacent to the Storage Shed to
facilitate repair, maintenance and relocation or reconfiguration of the Storage
Shed.
8. Miscellaneous.
8.1 Amendment. The parties agree that the provisions of this Agreement may
be modified or amended, in whole or in part, or terminated, only by the written
consent of the parties hereto (or such successors and assigns.
8.2 Covenants to Run with Land. This Agreement shall run with the land,
shall bind every party having any fee, leasehold or other interest in the Hotel
Property and/or Association Property and shall inure to the benefit of the parties
and their respective successor, assigns, heirs, and personal representatives.
8.3 Notices. Notices or other communication hereunder shall be in writing and
shall be sent certified or registered mail, return receipt requested, or by other
national overnight courier company, or personal delivery. Notice shall be deemed
given upon receipt or refusal to accept delivery. Each party may change from time
to time their respective address and/or telephone and fax numbers for notice
hereunder by like notice to the other party. The notice addresses of the parties are:
DMWEST #6428934 v3 4
Association: Alphom Condominium Association, Inc.
121 West Meadow Drive
Vail Colorado 81657
Attention: Association President
Phone: (970) '.ZD�3gq Fax: (970) 5. 4 - Rai
With a copy to: R. G. Jacobs
Property Manager - Alphom
Mountain Caretakers, Inc.
2000 Spring Creek Road
Gypsum, Colorado 81637
Phon e: (970) 524 -7629/ Fax: (970) 59¢'710�
9-40 3yo -(.394
Vail Development: Vail Development, LLC
Black Diamond Resorts — Vail, LLC
50 South Sixth Street, Suite 1480
Minneapolis, MN 55402
Attention: Manager
Phone: (612) 313 -2500 / Fax: (612) 313 -0136
With a copy to: Thomas J. Brink
HB Development Co.
821 Marquette Avenue, Suite 600
Minneapolis, MN 55402
Phone: (612) 332 -1500 / Fax: (612) 332 -2428
8.4 Governing Law. The laws of the State of Colorado shall govern the
interpretation, validity, performance, and enforcement of this Agreement.
8.5 Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall constitute one and the same instrument.
8.6 Representations. Each of the parties hereto, hereby represents and
warrants to the other party that they have the express authority and power to enter
into this Agreement. Further, the parties represent and warrant to the other party
that the individuals executing this Agreement on behalf of said party have the
unqualified authorization and authority to execute this Agreement and bind said
party to the express terms hereof.
[Remainder of Page Intentionally Left Blank]
DMWEST N428934 ,3 5
(W IN WITNESS WHEREOF, this Right of Entry Agreement and Grant of Temporary
Encroachment Easement is made effective as of the date first written above.
VAIL DEVELOPMENT:
BLACK DIAMOND RESORTS — VAIL, LLC
By:
Vail Development, LLC
Its: Manager
STATE OF MINNESOTA }
ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on August Z4 2006, by Vail
Development, LLC, the Manager of Black Diamond Resorts — Vail, LLC, a Delaware limited
liability company, on behalf of the limited liability company.
CHARLOTTE MARIA SCHU
FLT -
• ;'��� NOTARY PUBLIC •MINNESOTA
•'-,: My Comm. Expires Jan. 31. 2007 Notary Public
VAIL DEVELOPMENT, LLC
By
Its: Ma.. tAGE�t
STATE OF MINNESOTA
ss.
COUNTY OF HENNEPIN
This instrument was acknowledged before me on August 24 , 2006, by
`-} ,cA4" K K R , the of Vail Development, LLC, a
Delaware limited liability company, on behalf of the limited liability company.
0000000 00000 0000000410,00.00100 do
CHARLOTTE MARIA SCHU f
NOTARY PUBLIC - MINNESOTA
1444-1111W I
- -:- My Comm. Expires Jan. 31,2007 Notary Public
DMWEST #6428934 v3 6
THE ASSOCIATION:
ALPHORN CONDOMINIUM ASSOCIATION, INC.
STATE OF COLORADO
ss.
COUNTY OF EAGLE
This instrument was ackno Iedged before me on August � 2006 by
Margcaref W. Kg-L( as the of Alphom Condominium
AA sociation, Inc., a Colorado non - profit corporation, on behalf of the non -profit corporation.
tom•. �� ' G
STATE°
DMWEST #6428934 Y3 7
yw.q.011. ffi>/\
LEGAL DESCRIPTION OF HOTEL PROPERTY
PARCEL A:
A PART OF LOT A OF AMENDED MAP OF SHEET 1 OF 2 OF VAIL VILLAGE, SECOND
FILING, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINN7ING AT THE NORTHWESTERLY CORNER OF SAID LOT A; THENCE SOUTH
79 DEGREES 41 MINUTES 13 SECONDS EAST AND ALONG THE NORTHERLY LINE
OF SAID LOT A, A DISTANCE OF 152.65 FEET TO THE NORTHEAST CORNER OF
SAID LOT A; THENCE SOUTH 0 DEGREES 23 MINUTES 00 SECONDS EAST ALONG
THE EASTERLY LINE OF SAID LOT A, A DISTANCE OF 125.00 FEET; THENCE NORTH
74 DEGREES 16 MINUTES 12 SECONDS WEST A DISTANCE OF 156.13 FEET TO A
POINT OF INTERSECTION WITH THE WESTERLY LINE OF SAID LOT A; THENCE
NORTH 0 DEGREES 23 MINUTES 00 SECONDS WEST AND ALONG SAID WESTERLY
LINE OF SAID LOT A. A DISTANCE OF 110.00 FEET TO THE TRUE POINT OF
BEGINNING, COUNTY OF EAGLE, STATE OF COLORADO.
PARCEL B:
A PART OF THE NORTHEAST ONTE- QUARTER OF SECTION 7, TOWNSHIP 5 SOUTH,
RANGE 80 WEST OF THE SIXTH PRINCIPAL MERIDIAN AND BEING A PART OF
LOTS A, B, AND C OF AMENDED MAP OF SHEET 1 OF 2 OF VAIL VILLAGE SECOND
FILING, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 7; THENCE
SOUTHERLY AND ALONG THE EAST LINE OF THE NORTHEAST ONT- QUARTER OF
SAID SECTION 7; 39.20 FEET TO THE SOUTH RIGHT OF WAY LINE OF U.S.
HIGHWAY NO. 6; THENCE ON AN ANGLE TO THE RIGHT OF 100 DEGREES 41
MINUTES 47 SECONDS AND ALONG SAID SOUTH RIGHT OF WAY LINE, 25.44 FEET
TO A POINT ON THE WEST LINE OF VAIL ROAD, SAID POINT BEING THE
NORTHEASTERLY CORNIER OF SAID LOT A; THENCE CONTINUING ALONG THE
AFOREMENTIONED LINE AND ALONG THE NORTHERLY LINE OF SAID LOT A,
152.65 FEET TO A POINT ON THE NORTHWESTERLY CORNER OF SAID LOT A, SAID
POINT BEING THE TRUE POINT OF BEGINNING; THENCE ON AN ANGLE TO THE
LEFT OF 100 DEGREES 41 MIN'U'TES 47 SECONDS AND ALONG THE WEST LINE OF
SAID LOT A, 110.0 FEET; THENCE ON AN ANGLE TO THE LEFT OF 73 DEGREES 53
MINUTES 12 SECONDS, 156.13 FEET TO THE WEST LINE OF VAIL ROAD; THENCE
ON AN ANGLE TO THE RIGHT OF 7' :) DEGREES 53 MT UTES 12 SECONDS AND
ALONG SAID WEST LINE 29.15 FEET; THENCE ON AN ANGLE TO THE RIGHT OF 106
DEGREES 06 MINUTES 48 SECONDS, 156.13 FEET TO THE WEST LINE OF SAID LOT
A: THENCE ON AN ANGLE TO THE LEFT OF 134 DEGREES 17 MINUTES 11 SECONDS,
DMWEST #6428934 v3 8
67.00 FEET; THENCE ON AN ANGLE TO THE RIGHT OF 90 DEGREES 00 MINUTES 00
SECONDS, 18.27 FEET; THENCE ON AN ANGLE TO THE LEFT OF 90 DEGREES 00
MINUTES 00 SECONDS, 86.00 FEET; THENCE ON AN ANGLE TO THE RIGHT OF 102
DEGREES 13 MINUTES 17 SECONDS, 101.50 FEET, MORE OR LESS TO THE
NORTHERLY LINE OF WEST MEADOW DRIVE; THENCE ON AN ANGLE TO THE
RIGHT OF 38 DEGREES 13 MINUTES 30 SECONDS AND ALONG THE SAID
NORTHERLY LINE 264.42 FEET TO A POINT OF CURVE; THENCE CONTINUING
ALONG SAID NORTHERLY LINE AND ALONG A CURVE TO THE LEFT HAVING A
RADIUS OF 525.00 FEET, A CENTRAL ANGLE OF 06 DEGREES 23 MINUTES 12
SECONDS, AN ARC DISTANCE OF 58.52 FEET TO THE WESTERLY LINE OF LOT C;
THENCE ON AN ANGLE TO THE RIGHT OF 84 DEGREES 48 MINUTES 35 SECONDS
AND ALONG THE WESTERLY LINE OF LOT C, 251.25 FEET TO THE SOUTH RIGHT OF
WAY LINE OF U.S. HIGHWAY NO. 6; THENCE ON AN ANGLE TO THE RIGHT OF 90
DEGREES 00 MINUTES 00 SECONDS AND ALONG SAID SOUTH RIGHT OF WAY LINE
300.00 FEET; MORE OR LESS, TO THE TRUE POINT OF BEGINNING.
THE ABOVE PARCEL A AND PARCEL B BEING ALSO DESCRIBED AS:
A part of Lots A, B and C of Amended Map of Sheet 1 of 2 of Vail Village, Second Filing, Eagle
County, Colorado, being more particularly described as follows:
Commencing at the Northeast corner of Section 7, Township 5 South, Range 80 West of the
Sixth Principal Meridian; thence along the East line of the Northeast Quarter of the Northeast
(W Quarter of said Section 7, and referring all bearings contained herein to said line, S 00
DEGREES 09 MINUTES 28 SECONDS W, a distance of 39.20 feet; thence departing said line
N 79 DEGREES 08 MINUTES 45 SECONDS W, a distance of 25.44 feet to the Northeast
comer of said Lot A and the Point of Beginning of the herein described parcel of land; thence
along the East line of said Lot A and the West right -of way line of Vail Road (50' wide) S 00
DEGREES 09 MINUTES 28 SECONDS W, a distance of 125.00 feet; thence continue along
said line S 00 DEGREES 09 MINUTES 28 SECONDS W, a distance of 29.15 feet to the
Northeast comer of Condominium Map for the Holiday House as recorded in Book 229 at Page
936; thence along the North and West boundaries of said Condominium Map. The following five
(5) courses and distances:
1) N 73 DEGREES 43 MINUTES 44 SECONDS W, 156.13 feet;
2) S 28 DEGREES 00 MINUTES 55 SECONDS E, 67.00 feet;
3) S 61 DEGREES 59 MNUTES 05 SECONDS W, 18.27 feet;
4) S 28 DEGREES 00 MINUTES 55 SECONDS E, 86.00 feet;
5) S 74 DEGREES 12 MINUTES 22 SECONDS W, 101.49 feet to intersect the North right -of-
way line of West Meadow Drive (50' wide); thence along said right -of -way line the following
two (2) courses and distances;
1) N 67 DEGREES 34 MINUTES 08 SECONDS W, 264.42 feet;
2) 58.51 feet along the arc of a curve to the left having a radius of 525.00', a central angle of 6
DEGREES 23 MINUTES 09 SECONDS and a chord which bears N 70 DEGREES 45
MINUTTES 43 SECONDS W, 58.48' to the Southwest comer of said Lot C;
thence along the West line of said Lot C N 10 DEGREES 51 MThTUTES 15 SECONDS E; a
DMWEST #6428934 Q 9
distance of 251.25 feet to the Northwest comer of said Lot C; thence along the North line of said
Lot C S 79 DEGREES 08 MINUTES 45 SECONDS E, a distance of 300.00 feet to the Northeast
corner a said Lot C and the Northwest comer of said Lot A; thence along the North line of said
Lot A S 79 DEGREES 08 MINUTES 45 SECONDS E, a distance of 152.65 feet to the Point of
Beginning, County of Eagle, State of Colorado.
Bearings are based on State Plane Coordinates; Colorado Central Zone.
DMWEST #6428934 v3 10
U.
LEGAL DESCRIPTION OF ASSOCIATION PROPERTY
Common Area, The Alphorn, according to the Condominium Map recorded October 14, 1969 in
Book 216 at Page 176, and recorded June 29, 1999 under Reception No. 701249, and as defined
and described in the Condominium Declaration recorded June 29, 1999 at Reception No.
701248, and re- recorded June 15, 2000 at Reception No. 732233, County of Eagle, State of
Colorado.
DAMWEST #6428934 v3 11
RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
Slack Diamond Resorts - Vail LLC
c/o Capital Real Estate, Inc.
50 South Sixth Street, Suite 1480
Minneapolis. Minnesota 55402
Attention: President
SOLI., NAILS EASEMENT AGREEMENT
This Soil Nails Easement Agreement is made effective as of March 1, 2007 by and
between Black Diamond Resorts - Vail LLC; a Delaware limited liability company (which,
together with its successors and assigns, is referred to herein as the "Grantee "), and Holiday
House Condominium Association, dlb /a 9 Vail Road Condominiums (which, together with its
successors and assigns, is referred to herein as the "Grantor ").
WHEREAS, Grantor is the association which represents each unit owner with respect to
the common elements of the Grantor Property, as hereafter defined, which in turn are the fee
owners of that certain parcel of real property located in the Town of Vail, County of Eagle, State
of Colorado, which is more particularly described on Exhibit "A" attached hereto (the "Grantor
Property "); and
WHEREAS, in conjunction with the development of a resort and hotel complex (the
"Resort ") on property owned by Grantee that is adjacent to the Grantor Pmperty, which
adjacent property owned by Grantee is more particularly described on Exhibit "B" attached
hereto (the "Grantee Property "), Grantee desires to acquire an easement under a portion of the
Grantor property to permit Grantee and other Permitted Parties (as herein defined) to install soil
nails under, through and below the surface of a portion of the Grantor Property; and
WHEREAS, Grantor is willing to grant such easement to Grantee pursuant to the terms
and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Grant of Easement. Grantor hereby grants unto Grantee, unto Grantee's design
consultants, agents, contractors, subcontractors and materialmen, and unto their respective
employees (collectively, the "Permitted Parties ") a below ground, temporary easement within
the easement area legally described in Exhibit "C" attached hereto (the "Easement Area "), as
depicted on Exhibit "D" attached hereto, to permit the installation and existence of soil nails (the
"Soil Nails "), as generally depicted but not exceeding the intrusion depths onto Grantor Property
109721.doc
indicated on Exhibit "E ", a sub - section of page XBS -2 of the plan for Caisson. Drilling,
Excavation Shoring and Tieback Anchors by Coggin & Sons, Inc. dated 8/28x'2006 and
modified 2/1/2007 attached hereto (the "Easement "). Notwithstanding anything herein to the
contrary, (a) in the event the Soil Nails or any device utilized to install the Soil Nails penetrates
or damages any building or other structure on the Grantor Property, the Permitted Parties shall
halt installation of the Soil Nails until such penetration and/or damage is corrected by the
Grantee or one of the permitted Parties; (b) the Soil Nails will remain in place and shall be of no
further use or value upon completion of construction of the Resort and shall be abandoned in
place by Grantee; (c) Grantee shall have no obligation to remove the Soil Nails or to compensate
Grantor for Grantor's removal of the Soil Nails; (d) the Soil Nails shall be detached from the
shoring system and shall not provide continuing support for any building or structure on the
Grantee Property after completion of construction of the Resort; and (e) after completion of
construction of the Resort, the Soil Nails may be removed from the Easement Area by Grantor at
Grantor's expense.
2. Term. The rights of the Permitted Parties to use the Easement shall not commence
until Grantee has delivered to Grantor a notice of commencement of Grantee's use of the
Easement accompanied by the payment required by the terms of Section 7 hereof, and the
Easement shall terminate of its own accord, without further action by either party, on December
31, 2009, provided that, in the event that Grantee completes its construction activities in the
Easement Area on or before such date, Grantee and Grantor agree to provide a recordable
termination of this Agreement and release of this Easement upon written request from either
Grantee or Grantor. Notwithstanding such termination, Grantor acknowledges that the Soil Nails
will remain in the Easement Area after termination of the Easement until removed by Grantor at
Grantor's expense.
3_ Liens. In the event that any liens are filed against the Grantor Property or any part
thereof arising out of or related to any work performed by or on behalf of Grantee in connection
with this Agreement, Grantee shall have such liens discharged of record or insured or bonded
over within thirty (30) days of receipt of notice of said lien.
4. Hazardous Waste. The Grantee shall indemnify aDd hold the Grantor harmless
from and against all claims of whatever nature related to hazardous substances whose presence
upon or under the Easement Area is caused directly, indirectly or by omission by Grantee or its
employees, agents, contractors, subcontractors or materialmen, pursuant to the terms of Section
10 hereof, Such term "hazardous substances" shall be interpreted herein as it and similar terms
are defined in the Federal Resource Conservation and Recovery Act of 1976, the Federal
Comprehensive Environmental Response Compensation and Liability Act of 1980, the
Superfund Amendments and Reauthorization Act of 1986 (U.S.C. § 9601, et seq.), as amended.
5. Conditions of Construction Easement. Grantor and Grantee shall abide by the
following terms and conditions in connection with the use of the Easement and installation of the
Soil Nails.
109721.doe 2
VJ /V� /ZOVf fb:JO txn d(V4fb45J4 LAND IlILL -VALE f1,Ji VVO/V Ib
(a) Grantee shall use its best efforts to minimize disruption to Grantor,
together with its unit owners and guests, during the installation of the Soil
Nails.
(b) Grantor shell cooperate with Grantee (without cost and expense to
Grantor) in the timely completion of the installation of the Soil Nails.
(c) Grantee shall not install any construction fencing on the Grantor Property.
6. Restoration. Grantee agrees, at its sole cost and expense, to restore the surface of
the Grantor's Property and any buildings, garage facilities, utility installations or other
improvements on or under Grantor's Property and any personal property located on Grantor
Property that are damaged as a result of the actions or omissions of Grantee or its employees,
agents, contractors, subcontractors and materialmen (if any) in the installation of the Soil Nails.
In the event the real or personal property referred to above cannot be restored to its original
condition, Grantee shall, at the option of the owner of such real or personal property, pay to any
injured party such damages as may be attributable to the loss suffered, including but not limited
to the value of the real or personal property damaged or destroyed.
7. Consideration. In consideration of the grant of the Easement, Grantee shall pay to
Grantor the sum of Two Hundred Fifty Thousand Dollars (5250,000.00), which sum shall be
paid by Grantee upon notice of commencement of Grantee's use of the easement and prior to the
use of the Easement by Grantee.
8, Eneineering Costs. In addition to the consideration set forth in Section 7 hereof,
Grantee shall reimburse Grantor for Grantor's reasonable costs, not to exceed a total
reimbursement of Fifteen Thousand Dollars ($15,000), to engage an engineer licensed in
Colorado to evaluate the Soil Nails system to be installed on the Grantor Property in connection
with development and construction of the Resort and/or to install and monitor devices to measure
the movement of the Grantor Property resulting from the use of soil nails or dewatering;
provided however, that Grantor shall require such engineer, to certify and provide all such
evaluations and data to both Grantor and Grantee. Grantor may request such reimbursement in
installments as such costs are incurred, provided that the total of all such reimbursement requests
do not exceed Fifteen Thousand Dollars ($15,000). Each such requested reimbursement shall be
due and payable by Grantee within thirty (30) days of Grantee's receipt of reasonable evidence
documenting such costs. Grantee may, at its election, cause its own consultants to enter the
Grantor Property prior to commencement of construction of the Resort to assess the current soils
conditions and improvements on the Grantor Property.
9. Remedies and Enforcement.
(a) All Legal and Equitable Remedies Available_ In the event of a breach or
threatened breach by Grantor or Grantee of any of the terms, covenants,
restrictions or conditions hereof. the other shall be entitled forthwith to full
and adequate relief by injunction and/or all such other available legal and
109721 -doe
QJ /U3 /ZQV( lb:Jb FRY U(V4(U45J4 LRNU IiILL -VRiL tJVV4 /VIb
equitable remedies from the consequences of such breach, including
Payment of any amounts due and/or specific performance.
(b) Self -Help. In addition to all other remedies available at law or in equity,
upon the failure of a defaulting party to cure a breach of this Agreement
within thirty (30) days following written notice thereof by such non -
defaulting party (unless, with respect to any such breach the nature of
which cannot reasonably be cured within such 30 -day period, the
defaulting party commences such cure within such 30-day period and
thereafter diligently prosecutes such cure to completion), the non-
defaulting party shall have the right to perform such obligation contained
in this Agreement on behalf of such defaulting party and be reimbursed by
such defaulting party upon demand for the reasonable costs thereof
together with interest at the prime rate announced from time to time by the
Wall Street Journal, plus two percent (2 %) (not to exceed the maximum
rate of interest allowed by law). Notwithstanding the foregoing, in the
event of an emergency a party hereto may immediately cure the same and
be reimbursed by the other party upon demand for the reasonable cost
thereof together with interest at the prune rate, plus two percent (21/o), as
above described.
(c) Lien Rigbts. Any claim for reimbursement, including interest as aforesaid,
and all costs and expenses including reasonable attorneys' fees awarded to
any party in enforcing any payment in any suit or proceeding under this
Agreement shall be assessed against the defaulting party in favor of the
prevailing party and shall constitute a lien (the "Assessment Lien ")
against said defaulting party's property until paid, effective upon the
recording of a notice of lien with respect thereto in the Office of the
County Recorder of the County of Eagle, State of Colorado; provided,
however, that any such Assessment Lien shall be subject and subordinate
to (i) liens for taxes and other public charges which by applicable law are
expressly made superior, (ii) all liens recorded in the Office of the County
Recorder of the County of Eagle, State of Colorado, prior to the date of
recordation of said notice of lien, (iii) all leases entered into, whether or
Dot recorded, prior to the date of recordation of said notice of lien; and (iv)
all management and other agreements entered into with respect to the
operation and management of the Property, whether or not recorded, prior
to the date of the said notice of lien. All liens recorded subsequent to the
recordation of the notice of lien described herein shall be junior and
subordinate to the Assessment Lien. Upon the timely curing by the
defaulting party of any default for which a notice of lien was recorded, the
party recording same skull record an appropriate release of such notice of
lien and Assessment Lien.
(d) Remedies Cumulative. The remedies specified herein shall be cumulative
and in addition to all other remedies permitted at law or in equity_
109771.doc 4
VJj Vi/ LVVI Iu.'1.J In?% VI 11 V1-1 X11— 1i1 1.1— v -
10. Ind emni . Grantee agrees to indemnify and bold Grantor harmless from and
against any and all claims, dem wds, debts, causes of action, suits, covenants, contracts,
agreements and costs, whether to persons or property, as a result of (i) any third party action
arising out of the activities of Grantee or its employees, agents, contractors, subcontractors or
materialmen hereunder, and (ii) the construction activities performed in the Easement Area by
Grantee or its employees, agents, contractors, subcontractors or materialmen, and (iii) any other
direct or indirect activities or omissions of Grantee or its employees, agents, contractors,
subcontractors or materialmen hereunder; and Grantee agrees to defend and hold Grantor
harmless in any action or litigation, threatened or otherwise, arising out of such direct or indirect
activity or omissions of Grantee or its employees, agents, contractors, subcontractors or
materialmen hereunder, including, but not limited to, Grantor's reasonable attorney's fees and
costs.
11. Survival of Terms; Binding Upon Successors and Assi s• Covenants Running
witb the Land. The terms, conditions, liabilities and obligations coutained in Sections 3, 4, 6, 7,
8, 9 and 10 hereof shall survive the termination of this Agreement regardless of the form or
tinning of the termination. The provisions of this Agreement shall be, until termination of the
Easement, covenants running with the Grantor Property and the Grantee Property and the
provisions hereof shall be binding upon and inure to the benefit of the savccessom and assigns of
Cnantor and Grantee.
12. Notices. Notices, communications or demands required or permitted to be given
hereunder shall be given by certified mail, return receipt requested or by national overnight
courier company, or personal delivery. Notice shall be deemed given upon receipt or refusal to
accept delivery. Each party may ebange from time to time their respective address and/or
telephone and fax numbers for notice hereunder by like notice to the other party. Tire notice
addresses are as follows:
In the case of Grantor: Holiday House Condominium Association,
d/b /a 9 Vail Road Condominiums
P. O. Box 5733
Vail, Colorado 81658 -5733
Attention: Association President
Phone: (970) 479 -7100 / Fax: (970) 476 -8852
In the case of .Grantee: Black Diamond Resorts - Vail LLC
c/o Capital Real Estate, Inc.
50 South Sixth Street, Suite 1480
Minneapolis, MN 55402
Attention: President
Phone: (612) 313 -2500 /Fax: (612) 313 -0136
or at such other address as such party may specify in writing.
109721.doc 5
13. Governing Law. The laws of the State of Colorado shall govern the interpretation,
validity, performance, and enforcement of this Agreement.
J4- Estoppel Certificates. Each party hereto, within twenty (20) days of its receipt of a
written request from the other party, shall frornn time to time provide the requesting party, a
certificate binding upon such party stating: (a) to the best of such party's knowledge, whether any
party to this Agreement is in default or violation of this Agreement and if so identifying such
default or violation; and (b) that. this Agreement is in full force and effect and identifying any
amendments to the Agreement as of the date of such certificate.
15. l3ankruntcy. In the event of any baakruptcy affecting any party, the parties agree
that this Agreement shall, to the maximum extent permitted by law, be considered an agreement
that runs with the land and that is not rejeetable, in whole or in part, by the bankrupt person or
entity-
16. Counterparts_ This Agreement may be executed in counterparts, all of which
taken together shall constitute one and the same instrument.
17. Amendment. The parties agree
modified or amended, in whole or in part, or
parties hereto (or such successors and assigns).
that the provisions of this Agreement may be
terminated, only by the written consent of the
18_ No Waiver. No waiver of any default of any obligation by any party hereto shall
be implied from any omission by the other party to take any action with respect to such default.
19. RTresentations. Each of the parties hereto, hereby represents and warrants to the
other party that they knave the express authority and power to enter into this Agreement and to
grant the Easements set forth herein. Further, the parties represent and warrant to the other parry
that the individuals executing this Agreement on behalf of said party have the unqualified
authorization and authority to execute this Agreement and bind said party to the express terms
hereof.
20. Arbitration. The parties hereto hereby acknowledge and agree that subject to the
interim rights noted below any controversy or claim arising out of or related, directly or
indirectly to this Soil Naffs Easement Agreement shall be resolved by arbitration administered by
the American Arbitration Association under its Construction Industry Arbitration Rules and
Mediation Procedures and judgment on the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof. The parties hereto further acknowledge and agree that the
arbitration shall be held in the State of Colorado and that the arbitratorfs) may grant any remedy
or relief, consistent with Colorado law, that the arbitrator(s) deems just and equitable and within
the scope of this Soil Nails Easement Agreement, including, but not limited to, (a)specific,
performance and, (b) upon a substantial violation of this agreement not cured by Grantee within
30 days after (i) notice of the violation, or (ii) if the violation is disputed, confirmation of the
violation by the arbitrator, termination of Grantee's rights hereunder. The parties hereto hereby
agree that the arbitrator(s) shall not have the authority, in the award, to assess damages (other
than those directly recoverable under sections 3, 4, 6, 7, 8, 9(b) and (c) and 10) or fees, expenses
109721.doe 6
and compensation (including but not limited to, reasonable attorneys' fees and costs) in favor of
the prevailing party ju the arbitration, but shall have only the authority to require specific
performance. Each party shall also have the right to apply for and to obtain, from a court having
jurisdiction, interim judicial relief pending the results of the arbitration.
[Remainder of Page Intentionally Left Blank]
109721_doc 7
v6 /vz)/GVvf Io.Jo fHA 01V4104J04 LnHV IlILL vn1L `t_1 , ..
IN WITNESS WHEREOF, the parties have executed this Soil Nails Easement
Agreement as of the day and year first above written.
STATE OF MINNESOTA
ss-
COUNTY OF HENNEPIN
"GRANTEE"
BLACK DL ,MOND RESORTS - VAIL LLC,
a Delaware limited liability company
>3y:
j7c�uglas G. Hipskind
Its: Vice President
This instrument was acknowledged before me on k r44 7-9 , 2007, by Douglas G.
Hipskir d, the Vice P- resident of Black Diamond Resorts - Vail 1,1P, a Delaware limited liability
company, on behalf of the limited liability company.
CHARLaTTE MARIA SCHl1
NOTARY PUBLIC
STATE OF MINNESOTA
MY COMMISSION EXPIRES 01131.012
109721 Am
Notary Public
YO/ V J J L V I I V. - .. 11 . I v I I. I I V I
STATE OF COLORADO )
COUNTY OF EAGLE )
ss.
"GRANTOR„
HOLIDAY HOUSE CONDOMINIUM
ASSOCIATION,
d/b /a 9 VAIL ROAD COINDONUNIUMS,
a Colorado corporation
�Cxw dolyn eal'pello, its President
By:
Barry alsh, its Secretar},
This instrument was acknowledged before me on 1 c,� I , 2007 by Gwendolyn
Scalpello as the President of Holiday House Condominium Association, d/b /a 9 Vail Road
Condominiums, a Colorado corporation, on behalf of the corporation.
(- V, (�-- +1
'N'otary puNic a _ !►-` 1� — r-�—
tom►',. �� -S'T,�= ..,,..,.•••
STATE OF ettoi 9- )
1-0 cckt ) SS.
COUNTY OF EAE3EF )
'Phis instrument was acknowledged before me on, 2007 by Barry Walsh
as the Secretary of Holiday House Condominium Association, d/b /a 9 Vail Road Condominiums,
a Colorado corporation on behalf of the corporation.
109721.doc 9
wo
1d 2019
EXHIBIT A
GRANTOR. PROPERTY LEGAL DESCRTPTXON
A part of the Northeast one - quarter of Section 7, Township 5 South, Range 80 West of the, Sixth
Principal Meridian and being a part of Lots A, B, and C of Amended Map of Sheet 1 of 2 of Vail
Village Second Filing, County of Eagle, State of Colorado, more particularly described as
follows:
- Commencing at the Northeast corner of said Section 7;
thence Southffly and along the East line of the Northeast one- quarter of said Section 7,
39.20 feet to the South right -of -way line of U.S. Highway No. 6;
thence on an angle to the right of 100 degrees 41'47" and along said South right -of -way
line 25.44 feet to a point on the West line of Vail road, said point being the
Northeasterly corner of said Lot A;
thence continuing along the aforementioned line and along the Northerly line of said Lot
A., 152,65 feet to the Northwesterly corner of said Lot A;
- thence on any angle to the left of 100 degrees 41'47" and along the West line of said Lot
A, 139.15 feet to the true point of begimiing;
- thence on an angle to the left of 73 degrees 53'12 ", 1561.13 feet to the West lane of Vail
Road;
thence on an angle to the right of 73 degrees 5312" and along said West line 202.15 feet;
thence on an angle to the right of 90 degrees 00'00 ", 98.75 feet to the Northerly line of
West Meadow Drive;
thence on an angle to the right of 58 degrees 16'39" and along said Northerly line and
along a curve to the left having; a radius of 175.00 feet, a central angle of 36 degrees
0015", an arc distance of 109.97 feet to a point of tangent;
thence along said tangent and along said Northerly line 11.00 feet;
thence on an angle to the right of 141 degrees 46'30 ", 101.50 feet;
thence on an angle to the left of 102 degrees 13'17", 86.00 feet;
thence on an angle to the right of 90 degrees 00'00 ", 18.27 feet;
thence on an angle to the left of 90 degrees 00'00 ", 67.00 feet, more or less, to the true
point of beginning; containing 28,347.31 square feet or 0.65 acres. more or less.
109721_doc
EXHIBIT B
GRANTEE PROPERTY LEGAL DESCRIPTION
PARCEL A:
A PART OF THE NORTHEAST ONE - QUARTER OF SECTION 7, TOWNSHIP 5 SOUTH,
RANGE 80 WEST OF THE SIXTH PRINCIPAL. MERIDIAN AND BEING A PART OF
LOTS A, B, AND C OF AMENDED MAP OF SHEET 1 OF 2 OF VAIL VILLAGE SECOND
FILING, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER. OF SAID SECTION 7; THENCE
SOUTHERLY AND ALONG THE EAST LINE OF THE NORTHEAST ONE- QUARTER OF
SAID SECTION 7; 39.20 FEET TO THE SOUTH RIGHT OF WAY LINE OF U:S.
HIGHWAY NO. 6; THENCE ON AN AN OLE TO THE RIGHT OF 100 DEGREES 41
MINUTES 47 SECONDS AND ALONG SAID SOUTH RIGHT OF WAY LINE, 25.44 FEET
TO A POINT ON THE WEST LINE OF VAIL ROAD, SAID POINT BEING THE
NORTHEASTERLY CORNER OF SAID LOT A; THENCE CONTINUING ALONG THE
AFOREMENTIONED LINE AND ALONG THE NORTHERLY LINE OF SAID LOT A,
152.65 FEET TO A POINT ON THE NORTHWESTERLY CORNER OF SAID LOT A, SAID
POINT BEING THE TRUE POINT OF BEGINNING; THENCE ON AN ANGLE TO THE
LEFT OF 100 DEGREES 41 MINUTES 47 SECONDS AND ALONG THE WEST LINE OF
SAID LOT A, 110.0 FEET; THENCE ON AN ANGLE TO THE LEFT OF 73 DEGREES 53
MINUTES 12 SECONDS, 156.13 FEET TO THE WEST LINE OF VAIL ROAD; THENCE
ON AN ANGLE TO THE RIGHT OF 73 DEGREES 53 MINUTES 12 SECONDS AND
ALONG SAID WEST LINE 29.15 FEET; THENCE ON AN ANGLE TO THE RIGHT OF 106
DEGREES 06 MINUTES 48 SECONDS, 156.13 FEET TO THE WEST LINE OF SAID LOT
A; THENCE ON AN ANGLE TO THE LEFT OF 134 DECREES 17 Ml r!,It1'I'ES l 1 SECONDS,
67.00 FEET; THENCE ON AN ANGLE TO THE RIGHT OF 90 DEGREES 00 MINUTES 00
SECONDS, 18.27 FEET; THENCE ON AN ANGLE TO THE LEFT OF 90 DEGREES 00
MINUTES 00 SECONDS, 86.00 FEET; THENCE ON AN ANGLE TO THE RIGHT OF 102
DEGREES 13 MINUTES 17 SECONDS, 101.50 FEET, MORE OR LESS TO THE
NORTHERLY LINE OF WEST MEADOW DRIVE; THENCE ON AIrI ANGLE TO THE
RIGHT OF 38 DEGREES 13 MINUTES 30 SECONDS AND ALONG THE SAID
NORTHERLY LINE 264.42 FEET TO A POINT OF CURVE; THENCE CONTINUING
ALONG SAID NORTHERLY LINE AND ALONG A CURVE TO THE LEFT HAVING A
RADIUS OF 525.00 FEET, A CENTRAL ANGLE OF 06 DEGREES 23 MINUTES 12
SECONDS, AN ARC DISTANCE OF 58.52 FEET TO THE WESTERLY LINE OF LOT C.
THENCE ON AN ANGLE TO THE RIGHT OF 94 DEGREES 48 MINUTES 35 SECONDS
AND ALONG THE WESTERLY LINE OF LOT C, 251.25 FEET TO THE SOUTH RIGHT OF
WAY LINE OF U.S. HIGHWAY NO. 6; THENCE ON AN ANGLE TO THE RIGHT OF 90
DEGREES 00 MINUTES 00 SECONDS AND ALONG SAID SOUTH RIGHT OF WAY LINE
300.00 FEET; MORE OR LESS, TO THE TRUE POINT OF BEGINNING.
VJ)VJ /LVVI IV.JV Inl% VI VTIVTJVY
PARCEL B:
A PART OF LOT A OF AMENDED MAP OF SHEET 1 OF 2 OF VAIL VILLAGE, SECOND
FILING, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT A, THENCE SOUTH
79 DEGREES 41 MINUTES 13 SECONDS EAST AND ALONG THE NORTHERLY LINE
OF SAID LOT A, A DISTANCE OF 152.65 FEET TO THE NORTHEAST CORDER OF
SAID LOT A; THENCE SOUTH 0 DEGREES 23 MINUTES 00 SECONDS EAST ALONG
THE EASTERLY LINE OF SAID LOT A, A DISTANCE OF 125.00 FEET; THENCE NORTH
74 DEGREES 16 MINUTES 12 SECONDS WEST A DISTANCE OF 156.13 FEET TO A
POINT OF INTERSECTION WITH THE WESTERLY LINE OF SAID LOT A; THENCE
NORTH 0 DEGREES 23 MINUTES 00 SECONDS WEST AND ALONG SAID WESTERLY
LINE OF SAID LOT A, A DISTANCE OF 110.00 FEET TO THE TRUE POINT OF
BEGINNING, COUNTY OF EAGLE, STATE OF COLORADO.
Vo /V:J /LVVI IVa1V
Vtti
EASEMENT AREA PROPERTY LEGAL DESCRIPTION
X2011201t•
A pen xs .t lane ,seated in the UOnco n.njun, moo to, Iha NdiJuy 4an.0 ..x ,e-c- a , Jao.n 22u of po•',n
Euglc C —i,.•, C -twoM, ne:-r, more pc-!I wly ov. ;bad off Mliawe.
Zrnrn,arnq et inr Nnnneea comer 01 SOGt1on 7, lowr�6t: r' So -h. Ro•yt 50 thes: of the S,.th
°rin6o'^ U-1,he mrnrx ala''a the Loa' it" et :tee 1^rlren ^t Goert$f 01 Ih0 Northokm;
0.orld or yo'a 5#tTi n !, end ieferring at ueff,t „gs :onlanan nnr. !e send li-e aec•g, S00T1I'26'W,
;: datone0 of 30 70 Ite ;. thence deporti�q so'd ' 'f Y7g49'<5'W, one :stanec a: 75.t1, feet
to nhr kor.nnp.l cnrnr o1 .of A Amended Mw 01 Sheol 1 nl ; o: Vcif wingif, SeccriC (ii,ag, F�ePlir 4;, 8 "99,
tnehee clan the L'cel 1,nr yr srQ 101 n nnn Ihn Wccl flg,I- O(-wur file 91 Yoi Ruf:P
5tG011,2a'yf, o cstanre o1 112500 to'l, Onita..Ma .1" - ;e ;;no 5CU9p'96'1k a a,ma -,ce o1
39.15 leaf to the Norlhn"I refrtr of 9oit, : nrfi?rAlium ►'ap to' :Ile I't9 'day "GuIr
one the t'oh! of ,-Ic Seo Orion; twr North and *est onurtoa:r's or 6oiJ C'�W —inum KeG
110 ht:ow ;nq too (3) wor <a..•nd m+lona”
T` r; 13'is&'1'W, Ibc 11 Irry
3) no28'00'55 T. 51 50 `rook, It.,, , sjerlr I.- pi mun... { -nnn n.m „r.• nur 1,1901"iST, 631 feet:
thma iYd Jta /'E, :fi 73 tee:: lncncs NE1'OTCio'I', 651 .cc: along 0 ,Ine pmowlel 7a o-Id 962 f.e. nsur from ire nonna"el
-all of the I'.0110ay tfo"O' ulnnce 5l!!Y: 'G L, SAIV feet monq o f -e i1c"I” 11 nn"' 1:101 leaf owdy how tha notlt.rod:
sell of .he Iftllroy poupr„ rnecee N01YrTrl7", 75.9? fee: olonq c fine ohfodol -n and ].N? lee. owGv imm the ahwosl
.ail of the ndSacy htrite: "fence 50:41o' 4:i E.:, e7 fit, thence S79']5'1C L, 2129 'aol' t'-- Nn9� aF'F, " 1 R] lac,
to 0 point a. Itil e ooc -e.'Iy SAP or ae,a Condom,nlum map IV, U.c HOI'wy Munro; ILSn,.e 4110'09 26%. oionq sad 6-
17.50 Irtl So tno O66i of
TIM .aecrbnC onset eentain0 U.]3 aN_ mo-e � Sea:
-.1 'gi
=�=�'
r1
LJ
EXHIBIT D
DRAWING OF EASEMENT AREA
>> F{JUR SEASONS RESORTS;
SQ ;L NAIL = Afi 5IL M'• N'r
.r'p�0p'V? . 'tl5>ad7tp -C py� 41
1 01'
ea,
t 't „4aRr :qyf[ �9.+.Wr A(60DAPi/.
b w., nwn m k*p�,r51
`i f?MaGlN1w 01 YwG
SCAIL 7- ]4• , E.", N0 %°
soot m r� 235
POINT Or Cp1MEMCF.UFNI
7 I/. kiw uM co .'. T
� NCFlTHCAST mcp O% SECTION
bbd u.� .'�.ry�uicl�".:..u► .:n.�., ..,.� T..�.'.ir i� '.` -:°n I
CMOV' 1MC• MNlL h M � r� f ¢lar lorK A•a: rrY mNe:
ifi lM. rriOWw b o.vn�r6 � Yrn yr ta'� bl,o w M,• �1 >ti )
e' QQR
Q
A,--araed /.lQp :r ;1nr1 v al
of 4u' Vl�s, SsC:, -,- Fii'o
�14QKNT Or
1
1
K
7ri ;
Au �41pQ, Irm��
WAr
m[l I S
C,+wo%un,u JfAP \ 1
14 rcij()Av IIOUSE
Bom 279 PACE 03fi
SC'AiF7 Ir �
SHEET 1 OF 2
r _
; 1
CV, ¢, = I �rRUVG INC
i,1�1tl
• EXHIBIT E
DEPICTION OF SOIL NAILS
(see attached)
•
Ll
X
O
tll
SONS
1�
OWN
Mw-
�- 19090 SDUIH '---ANL
SANDY, UTAH 840