HomeMy WebLinkAboutEntitlements � ;
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TOWN OF VAI� '
Department of Community Development '
75 South Frontage Road
Yail, Colorado 81657
970-479-2138
FAX 970-479-2452
www vailgou com
September 17, 2004
Thomas J. Brink
Nicollet Isiand Development Company
8000 East Prentice Avenue
Suite C-3
Greenwood Village, Colorado 80111
Re: Entitlements for Chateau at Vail and Alpine Standard Sites
Dear T.J.:
This shall confirm that on October 7, 2003, the Vail Town Council adopted Ordinance
Nos. 9 and 10, Series of 2003 (the "Entitlements"), to facilitate the redevelopment of the
Chateau at Vail and Alpine Standard sites as specifically set forth in the attached
Ordinance Nos. 9 and 10, Series of 2003. Thereafter, the Town,the land owner and
Nicollet Island Development Company("NicolleY') mutually agreed to amend the
effective dates of Ordinance Nos. 9 and 10, Series of 2003 to the date of July 10, 2004.
The Vail Town Council adopted Ordinance No. 1, Series 2004 to accomplish the agreed
upon and amended effective date, as specifically set forth in the attached Ordinance No.
1, Series 2004.
On July 10, 2004, Ordinance Nos. 9 and 10, Series 2003, became effective, subject only
to final Design Review Board approval regarding the architectural details of the proposed
hotel structure and as specifically set forth in the Entitlements. Pursuant to the Vail Town
Code,these Entitlements shall remain effective until October 7, 2006.
If you need any additional information or clarification regarding Nicollet's Entitlements,
please do not hesitate to contact me.
Very truly yours,
Russ Forrest
Director of Community Development
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ORDINANCE NO. 9 ,
SERIES OF 2003
AN ORDINANCE REPEALING AND RE-ENACTING ORDINANCE NO. 14, SERIES OF
2001, PROVIDING FOR THE MAJOR AMENDMENT OF SPECIAL DEVELOPMENT
DISTRICT NO. 36, FOUR SEASONS RESORT, AND AMENDING THE APPROVED
DEVELOPMENT PLAN FOR SPECIAL DEVELOPMENT DISTRICT NO. 36 IN
ACCORDANCE WITH CHAPTER 12-9A, VAIL TOWN CODE; AND SETTING FORTH
DETAILS IN REGARD THERETO.
WHEREAS, Chapter 12-9A of the Town of Vail Zoning Regulations permits the adoption
of Special Development Districts; and
WHEREAS, Nicollet Island Development Company, Inc., has submitted an application for
a major amendment to Special Development District No. 36, Four Seasons Resort; and
WHEREAS, in accordance with the provisions outlined in the Zoning Regulations, the
Planning & Environmental Commission held public hearings on the application; and
WHEREAS, the Planning & Environmental Commission has reviewed the prescribed
criteria for the amendment of special development districts and has submitted its
recommendation of approval to the Vail Town Council; and
WHEREAS, the Vail Town Council finds that the proposed amendment to Special .
Development District No. 36, Four Seasons Resort, complies with the nine design criteria
outlined in Section 12-9A-8 of the Vail Town Code and that the applicant has demonstrated that
any adverse effects of the requested deviations from the development standards of the
underlying zoning are outweighed by the public benefits provided; and
WHEREAS, the approval of the major amendment to Special Development District No.
36, Four Seasons Resort, and the development standards in regard thereto shall not establish
precedence or entitlements elsewhere within the Town of Vail; and
WHEREAS, all notices as required by the Town of Vail Municipal Code have been sent to
the appropriate parties; and
Ordinance No.9,Series of 2003 ,
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WHEREAS, the Vail Town Council considers it in the best interest of the public health,
,
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safety, and welfare to adopt the proposed Approved Development Plan for Special Development
District No. 36, Four Seasons Resort. . .
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO, THAT:
Section 1. Purpose of the Ordinance
The purpose of Ordinance No. 9, Series of 2003, is to adopt an Approved Development Plan for
Special Development District No. 36, Four Seasons Resort, and to prescribe appropriate
development standards for Special Development District No. 36, in accordance with the provisions
of Chapter 12-9A, Vail Town Code. The "underfying" zone district for Special Development District
No. 36 shall remain Public Accommodation zone district.
Section 2. Establishment Procedures Fulfilled, Planninq Commission Report
The procedural requirements described in Chapter 12-9A of the Vail Town Code have been fulfilled
and the Vail Town Council has received the recommendation of approval from the Planning &,
Environmental Commission for the major amendment to Special Development District No. 36, Four
Seasons Resort. Requests for the amendment of a special development district follow the
procedures outlined in Chapter 12-9A of the Vail Town Code.
Section 3. Special Development District No. 36 �
The Special Development District is hereby amended to assure comprehensive development and
use of the area in a manner that would be harmonious with the general character of the Town,
provide adequate open space and recreation amenities, and promote the goals, objectives and
policies of the Town of Vail Comprehensive Plan. Special Development District No. 36, Four
Seasons Resort, is regarded as being complementary to the Town of Vail by the Vail Town Council
and the Planning & Environmental Commission, and has been amended because there are
Ordinance No.9,Series of 2003
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significant aspects of the Special Development District that cannot be satisfied through the
,
imposition of the standard Public Accommodation zone district requirements.
Section 4. Development Standards -Special Development District No. 36 Four Seasons
Resort Development Plan -
The Approved Development Plan for Special Development District No. 36, Four Seasons Resort,
shall include the following plans and materials prepared by Zehren and Associates, Inc., and Hill
Glazier Architects, and Alpine Engineering, dated April 28, 2003, and stamped approved by the
Town of Vail, dated May 6, 2003.:
a. C1. Existing Conditions Plan
b. C3. Water and Sanitary Sewer Plan �
c. C4. Grading and Drainage Plan
d. C5. Erosion and Sediment Control Plan
e. C6. Shallow Utility Plan
f. A-2.0.1 Level 1 Plan (132')
g. A-2.0.2 Level 2 Plan (140',142')
h. A-2.0.3 Level 3 Plan (152')
i. A-2.0.4 Level 4 Plan (162')
j. A-2.0.5 Level 5 Plan (172')
k. A-2.0.6 Level 6 Plan (182')
I. A-2.0.7 Level 7 Plan (192')
m. A-2.0.8 Level 8 Plan (202')
n. A-2.0.9 Level 9 Plan (212')
o. A-2.0.10 Level 10 Plan (222')
p. A-2.0.11 Roof Plan
q. A-5.0.1 Elevations
Ordinance No.9,Series of 2003
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r. A-5.0.2 Elevations
,
s. A-5.0.3 Elevations
t. A-8.0.1 Site Plan North
u. A-8.0.2 Site Plan South
v. A-9.0.1 Landscape Plan North
w. A-9.0.2 Landscape Plan South
x. A-10.0.1 Building Height Calculations—Absolute Height/Interpolated Contours
y. A-10.0.2 Building Height Calculations—Maximum Height/Interpolated Contours
z. A-10.0.3 Building Height Calculations at Proposed Grades
aa. A-11.0.1 Existing Circulation
bb. A-11.0.2 Proposed Circulations
cc. A-12.0.1 Off-site Improvements Plan
dd. A-13.0.1 Landscape Area
ee. A-14.0.1 Hardscape Area
ff. A-15.0.1 Above Ground Site Coverage
gg. A-15.0.2 Site Coverage Below Grade
hh. A-16.0.1 Streetscape Elevations
Permitted Uses-- �
The permitted uses in Special Development District No. 36 shall be as set forth in the development
plans referenced in Section 4 of this ordinance.
Conditional Uses—
The conditional uses for Special Development District No. 36, Four Seasons Resort, shall be set
forth in Section 12-7A-3 of the Town of Vail Zoning Regulations. All conditional uses shall be
reviewed per the procedures as outlined in Chapter 12-16 of the Town of Vail Zoning Regulations.
Ordinance No.9,Series of 2003
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Density-- Units per Acre - Dwelling Unifs, Accommodation Units, Fractional Fee Club Unifs
;
and Employee Housing Units--
The number of units permitted in Special Development District No. 36, Four Seasons Resort, shall
not exceed the following:
Dwelling Units— 18
Accommodation Units— 118
Fractional Fee Club Units—22
Type III Employee Housing Units—34
Density--F/oorArea—
The gross residential floor area (GRFA), common area and commercial square footage permitted
for Special Development District No: 36,.Four Seasons Resort, shall be as set forth in the Approved
Development Plan referenced in Section 4 of this ordinance.
SpecificallV:
GRFA— 177,991 square feet
Retail—2,402 square feet
Restaurant/Lounge—12,155 square feet
Conference Facilities— 11,726 square feet
Health Club and Spa—14,416 square feet
Setbacks--
Required setbacks for Special Development District No. 36, Four Seasons Resort, shall be as set
forth in the Approved Development Plan referenced in Section 4 of this ordinance.
Height-- ,
The maximum building height for Special Development District No. 36, Four Seasons Resort,
shall be as set forth in the Approved Development Plan referenced in Section 4 of this ordinance
(89 feet maximum).
Ordinance No.9,Series of 2003
Site Coverage--
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- The maximum allowable site coverage for Special Developmenf District No. 36, Four Seasons
Resort, shall be as set forth in the ApproVed Development Plan referenced in Section 4 of this
ordinance (69,346 square feet above grade or 58%; and 84,402 square feet below grade or
71%).
Landscaping--
The minimum landscape area requirement for Special Development District No. 36, Four
Seasons Resort, shall be as set forth in the Approved Development Plan referenced in Section 4
of this ordinance (39,687 square feet or 33%).
Parking and Loading —
The required number of off-street parking spaces and loading/delivery berths for Special
Development District No. 36, Four Seasons Resort, shall be provided as set forth in the Approved
Development Plan referenced in Section 4 of this ordinance (211 spaces re uired, 215 spaces
provided). In no instance shall Vail Road, West Meadow Drive or the South Frontage Road be
used for loading/delivery or guest drop-off/pick-up without the prior written approval of the Town
of Vail. The re uired parking spaces shall not be individually sold, transferred, leased, conveyed,
rented or restricted to any person other than a condominium owner, fractional fee owner, tenant,
occupant or other user of the building, except that six (6) of the required spaces may be utilized
by the Holiday House Condominium Association, d/bla Nine Vail Road Condominiums for parking
pursuant to the terms of a recorded Easement Agreement. The foregoing language shall not
prohibit the temporary use of the parking spaces for events or uses outside of the building,
subject to the approval of the Town of Vail nor shall it timit the number of spaces available for
sale or lease to condominium and/or fractional fee owners.
Section 5. Approval Aqreements for Special Development District No. 36, Four Seasons
Resort
Ordinance No.9,Series of 2003
The approval of Special Development District No. 36, Four Seasons Resort shall be conditioned
upon the developer's demonstrated compliance with the following approval agreements:
1. That the developer shall provide deed-restricted housing that complies with the
Town of Vail Employee Housing requirements (Chapter 12-13) for a minimum of
68 employees on the Four Seasons Resort site, and that said deed-restricted
employee housing shall be made available for occupancy, and that the deed
restrictions shall be recorded with the Eagle County Clerk & Recorder, prior to
issuance of a Temporary Certificate of Occupancy for the Four Seasons Resort.
2. That the Memorandum of Understanding as provided in Exhibit A, shall be
adopted with the second reading of Ordinance No. 9, Series of 2003. This fulfills
approval agreement number 2 of first reading of Ordinance No. 9, Series of 2003.
3. That the developer shall record a drainage easement for Spraddle Creek. The
easement shall be prepared by the developer and submitted for review and
approval by the Town Attorney. The easement shall be recorded with the Eagle
County Clerk & Recorder's Office prior to the issuance of a Temporary Certificate
of Occupancy for the Four Seasons Resort.
4. That the developer shall submit a final exterior building materials list, a typical wall
section and complete color renderings for review and approval of the Design
Review Board, prior to submittal of an application for a building permit.
.
5. That the developer shall submit a comprehensive sign program proposal for the
Four Seasons Resort for review and approval by the Design Review Board, prior
to the issuance of a Temporary Certificate of Occupancy for the Four Seasons
Resort.
6. That the developer shall submit a rooftop mechanical equipment plan for review
and approval by the Design Review Board prior to the issuance of a building
permit. All rooftop mechanical equipment shall be incorporated into the overall
design of the hotel and enclosed and visually screened from public view.
7. That the developer shall post a bond to provide financial security for the 150% of
the total cost of the required off-site public improvements. The bond shall be in
place with the Town prior to the issuance of a building permit.
8. That the developer shall comply with all fire department staging and access
requirements pursuant to Title 14, Development Standards, Vail Town Code. This
will be demonstrated on a set of revised plans for Town review and approval prior
to building permit submittal.
9. That the required Type III deed-restricted employee housing units shall not be
eligible for resale and that the units be owned and operated by the hotel and that
said ownership shall transfer with the deed to the hotel property.
10. That the developer shall coordinate the relocation of the existing electric
transformers on the property with local utility providers. The revised location of the
Ordinance No.9,Series of 2003
transformers shall be part of the final landscape plan to be submitted for review
, and approval by the Design Review Board.
11. That the developer shall submit a written letter of approval from Nine Vail Road
Condominium Association, the Scorpio Condominium Association, and the
Alphorn Condominium Association granting access to allow for the construction of
sidewalk, drainage, Spraddle Creek relocation, and landscaping improvements,
respectively, prior to the issuance of a building permit.
12, That the developer provides a 6 ft. to 8 ft. heated paver pedestrian walkway from
the Frontage Road bus stop adjacent to the West Star Bank then continuing east .
� to Vail Road and then south to the 9 Vail Road property line. All work related to
providing these improvements including lighting, retaining, utility relocation, curb
and gutter, drainage and landscaping shall be included. A plan shall be submitted
for review and approval by the Town and the Design Review Board prior to
submittal of a building permit. �
13. That the developer shall provide a heated pedestrian walk connection from the
Frontage Road to West Meadow Drive. The developer shall record a pedestrian
easement for this connection for review and approval by the Town Attorney prior
to issuance of a Temporary Certificate of Occupancy.
14. That the developer shall prepare and submit all applicable roadway and drainage
easements for dedication to the Town for review and approval by the Town
Attorney. All easements shall be recorded with the Eagle County Clerk and
Recorder's Office prior to issuance of a Temporary Certificate of Occupancy.
15. That the developer shall be assessed an impact fee of $5,000 for all net increase
in pm traffic generation as shown in the revised April 4, 2003, Traffic Study. The
net inc�ease shall be calculated using the proposed peak generating trips less the
existing Resort Hotel and Auto Care Center trips, respectively being 155-(108+7)
= 40 net peak trips @ $5,000 = $200,000. This fee will be offset by the cost of
non-adjacent improvements constructed.
16. That the developer shall receive approval for all required permits (CDOT access,
ACOE, dewatering, stormwater discharge, etc.) prior to issuance of a building
permit.
17. That the developer shall submit a full site grading and drainage plan for review
and approval by the Town and the Design Review Board. The drainage plan will
need to be substantiated by a drainage report provided by a Colorado professional
Engineer, include all drainage, roof drains, landscape drains etc., and how they
will connect with the TOV storm system. The developer shall submit all final civil
plans and final drainage report to the Town for civil approval by the Department of
Public Works, prior to submittal of a building permit.
18. That the developer shall provide detailed civil plans, profiles, details, limits of
disturbance and construction fence for review and civil approval by the
Department of Public Works, prior to submittal of a building permit.
Ordinance No.9,Series of 2003
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19. That the developer shall be responsible for all work related to providing
landscaping and lighting within the proposed Frontage Rd. medians. A detailed
landscape plan of the medians shall be provided for review and approval by the
Design Review Board.
20. That the developer shall provide additional survey information of the south side of
the Frontage Road to show existing trees to be removed and additional survey in
front of the Scorpio building in order to show accurate grades for the construction
of the path from the Four Seasons to the bus stop at West Star bank. Final
design, shall be reviewed and approved by the Town and the Design Review
Board.
21. That the developer is responsible for 100°/a of final design improvements along
West Meadow Drive from the centerline of the road back to the Four Seasons
property line from Mayors' park to western most property line of the Four Seasons,
including any drainage and grade tie-ins beyond the west property line. This
includes all improvements, including, drainage, lighting, art, streetscape
enhancements, edge treatments, curbs, heated walks, e#c. Final plans shall match
and be coordinated with the proposed Town of Vail Streetscape plan for West
Meadow Drive and shall be provided for review and approval by the Design
Review Board.
22. That the developer shall incorporate public art into the development, and shall
coordinate all art proposals with the Art in Public Places Board, subject to review
and approval by the Design Review Board.
23. That the developer shall resolve all of the following design-related issues for final
Design Review Board review and approval:
a. Proposed hydrant relocation at the NW corner of the property shall be graded
to be level with the proposed sidewalk and landscaping will be located as to
not interfere with the operation of the_hydrant.
b. The cross-slope on the West Meadow Drive walk shall maintain a max. 2.0%
cross slope that is sloped towards the road.
c. The boulder walls and grading at the SE corner of the property shall be
modified as to not impact the existing 2-36" CMP's.
d. The foundation wall at the SE corner of the parking structure shall be modified
to accommodate the existing Spraddle Creek vault. .
e. The proposed Spraddle Creek vault and concrete box culvert shall be modified
to work with the existing phone vault.
f. All known existing utilities shall be shown on a plan with the proposed drainage
and utilities in order to clarify potential conflicts.
g. The proposed walk that meets the frontage road walk at the eastern portion of
the property shall be realigned slightty to the west to avoid the existing inlet.
h. Fire staging tuming movements shall be show on plans.
i. Retaining walls west of the loading and delivery access drive shall be
curved/angled in order to "bench" access drive wall.
Ordinance No.9,Series of 2003
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� j. Top of wall elevation for the Frontage Rd-West Meadow Drive path reads as
185.5?(Typo) �
k. Railings shall be provided for paths where necessary
I. Show edge of existing pavement for Frontage road on civit plans and show
match point.
m. Erosion control plan shall be updated.
n. Show grading around proposed electric vault.
o. Show driveway grades, spot elevations on civil plans.
p. Show additional TOW/BOW elevations on pool walls.
24. That the developer shall begin initial construction of the Four Seasons Resort
within three years from the time of its final approval at second reading of the
ordinance amending Special Development District No. 36, Four Seasons Resort, ,
and continue diligently toward the completion of the project. If the developer does
not begin and diligently work toward the completion of the special development
district or any stage of the special development district within the time limits
imposed, the approval of said special development district shall be void. The
Planning and Environmental Commission and Town Council shall review the
. special development district upon submittal of an application to reestablish the
special development district following the procedures outlined in Section 12-9A-4,
Vail Town Code.
25. That the Developer shall coordinate with the Town to provide a bus stop at the
pedestrian sidewalk connection to West Meadow Drive. This design shall be
submitted to the Town of Vail for review and approval by the Town and the Design
Review Board prior to submittal of a building permit.
26. That the Developer shall commit no act or omission in any way to cause the
current operation of the Chateau at Vail to cease until such time as a demolition.
. permit is issued by the Department of Community Development.
Section 6. Effective Date of the Ordinance
Ordinance No. 9, Series of 2003, shall take effect on February 1, 2004.
Section 7.
If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason
held to be invalid, such decision shall not affect the validity of the remaining portions of this
ordinance; and the Town Council hereby declares it would have passed this ordinance, and each
part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one
or more parts, sections, subsections, sentences, clauses or phrases be declared invalid.
Section 8.
Ordinance No.9,Series of 2003
The repeai or the repeal and re-enactment of any provisions of the Vail Municipal Code as
,
provided in this ordinance shall not affect any right which has accrued, any duty imposed, any
violation that occurred prior to the effective date hereof, any prosecution commenced, nor any
other action or proceeding as commenced under or by virtue of the provision repealed or
repealed and reenacted. The repeal of any provision hereby shall not revive any provision or any
ordinance previously repealed or superseded unless expressly stated herein.
Section 9.
All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are hereby
repealed to the extent only of such inconsistency. The repealer shall not be construed to revise
any bylaw, order, resolution or ordinance, or part thereof, heretofore repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE
IN FULL ON FIRST READING this 6�' day of May, 2003, and a public hearing for second reading
of this Ordinance set for the 7th day of October, 2003, in the Council Chambers of the Vail
Municipal Building, Vail, Colorado.
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Ludwig Kurz, Mayor ��-�,,,
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ATTEST:
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Lorelei Donaldson, Town Clerk
READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED in full this 7�'
day of October, 2003.
Ordinance No.9,Series of 2003
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Ludwig Kurz, Mayor � _ � ��
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Lor ei Do aldson, Town Cierk -
Ordinance No.9,Series of 2003
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Exhibit A
TOWN OF VAIL
MEMORANDUM OF UNDERSTANDING
_ _ _
This Memorandum of Understanding is made and entered into on the 16`h day of
September 2003 by and between NICOLLET ISLAND DEVELOPMENT CO., a Minnesota
corporation and the TOWN OF VAIL a Municipal corporation, situated in the County of Eagle,
State of Colorado. '
WHEREAS, Nicollet Island Development Co. is planning the development and construction
of a mixed use project consisting primarily of a five star hotel, a fractional fee club, condominiums,
retail, employee housing units and related facilities at 28 South Frontage Road and 13 Vail Road, Vail
Colorado (Lots 9A and 9C, Vail Village Z"d Filing) currently and commonly known as the Chateau at
Vail hotel and the Alpine Standard/Amoco gasoline station;
WHEREAS, in connection with its proposed mixed use development Nicollet Island
Development Co. is requesting from the Town of Vail certain entitlements pursuant to its
applications for a major amendment to Special Development District No. 36, a conditional use
permit for Type III Employee Housing Units, a conditional use permit for a Fractional Fee Club and
a rezoning of Lot 9A, Vail Village 2"d Filing;
WHEREAS, in connection with the applications and requested entitlements, Nicollet
Island Development Co. is required by the Town of Vail to make certain off-site/public improvements
(as specifical(y set forth in detail below) along South Frontage Road and West Meadow Drive
consistent with the Town of Vail Streetscape Master Plan, as amended;
WHEREAS, as a condition to the second reading of Ordinance No. 9, Series of 2003, the
parties are required to enter into this Memorandum of Understanding setting forth the
Ordinance No.9,Series of 2003
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responsibilities, obligations and requirements of the parties in connection with said offsite/public
,
improvements to be performed by Nicollet Island Development Co.,
NOW,THEREFORE, in consideration of the mutual covenants hereinafter set forth,the -
parties hereto agree as follows:
I.DEFI1vITIONS
1. When used in this Memorandum of Understanding,the following terms shall have the
following meanings unless otherwise specifically defined.The singular shall include the plural and the ,
masculine gender shall include the feminine and the neuter unless otherwise required by the context.
"Improvements" shall mean those off-site/public improvements as specifically defined in
Section III below.
"MOU" shall mean this Memorandum of Understanding agreement and all exhibits
annexed hereto.
"Nicollet" shall mean Nicollet Island Development Co., a Minnesota corporation, whose
address is 600 Foshay Tower, 821 Marquette Avenue South, Minneapolis, Minnesota 55402;
Attention: Thomas J, Brink
"Parties" shall mean both Nicollet and Town of Vail.
"Project" shall mean the mixed use project being planned by Nicollet and consisting
primarily of a five star hotel, a fractional fee club, condominiums, retail, employee housing units and
related facilities to be located at the Property, which mixed use project is the subject of Ordinance
Nos. 9 and 10, Series 2003.
Ordinance No.9,Series of 2003
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"Property" shall mean those properties commonly known as the Alpine Standard/Amoco
�
gasoline station and the Chateau at Vail hotel, located respectively at 28 South Frontage Road and 13
Vail Road,Vail Colorado -Lots 9A and 9C, Vail Village 2' Filing.
"Town of Vail" shall mean the Town of Vail, a municipal corporation, whose address is 75
South Frontage Road, Vail Colorado 81657; Attention:
II. PURPOSE
2. The express purpose of this MOU is to establish the mutual responsibilities,
obligations and requirements of the Parties hereto regarding the lmprovements to be performed by
Nicollet in connection with Nicollet's entitlements and Project. These Improvements are
required to be made by Nicollet based upon the design and functionality of the Project or as
specifically required by the Town of Vail in connection with Nicollet's entitlements.
III. NICOLLET'S OBLIGATIONS
3. Nicollet shall be responsible, at its sole cost and expense, except as specifically
provided herein, to complete and perform the following (collectively, the "Improvements") in
connection with the Project:
(a) South Frontage Road. Nicollet shall perform the following improvements along�
the South Frontage Road, using new and first class materials, as approved by the Town of Vail
and the Town of Vail Design Review Board and in accordance with all applicable federal, state
and local laws, statutes, ordinances and regulations: (i) widen the south side of South Frontage Road
and install a left turn lane in South Frontage Road to the entrance of the hotel and a corresponding
left turn lane to the entrance of the existing Town of Vail Police Station; (ii) install medians in
South Frontage Road from the main roundabout to the western lot line of the Scorpio Condominium
property; (iii) provide all landscaping and lighting within the
Ordinance No.9,Series of 2003
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proposed South Frontage Road median to be constructed by Nicollet; (iv) install an attached heated
,
paver sidewalk/walkway (6 to 8 feet wide) adjacent to the South Frontage Road from the bus stop
adjacent to the Weststar Bank east along the Scorpio Condominium property and the Property to Vail
Road including all lighting retaining walls, railings, utility relocation, curb and gutter, drainage and
landscaping as necessary; (v) relocate the fire hydrant adjacent to South Frontage Road; and (vi)
pavement overlay from the centerline of South Frontage Road to the property line of the Property
from the main roundabout west to the bus stop adjacent to the Weststar Bank (subject to timing and
coordination of the CDOT overlay project that will be at CDOT's sol�;cost and expense).
(b) Vail Road. Nicollet shall perform the following improvements along the Vail
Road, using new and first class materials, as approved by the Town of Vail and the Town of Vail
Design Review Board and in accordance with all applicable federal, state and local laws, statutes,
ordinances and regulations: (i) install an attached heated paver sidewalk/walkway (6 to 8 feet wide)
adjacent to Vail Road from the South Frontage Road south along the Property to 9 Vail Road
� property, including all lighting retaining walls, railings, utility relocation, curb and gutter, drainage
and landscaping as necessary; (ii) relocate the Spraddle creek piping and install new box culverts;
and (iii) pavement overlay from the centerline of Vail Road to the property line of the Property from
the main roundabout(South Frontage Road) south to the property li�ne of 9 Vail Road.
along West Meadow Drive, using new and first class materials, as approved by the Town of
Vail and the Town of Vail Design Review Board and in accordance with all applicable federal,
(c) West Meadow Drive. Nicollet shall perform the following improvements
state and local laws, statutes, ordinances and regulations: (i) install an attached heated paver
Ordinance No.9,Series of 2003
a , ,
sidewalk/walkway (6 to 14 feet wide, or as required by the final approved Town of Vail
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Streetscape Master Plan for West Meadow Drive) adjacent to West Meadow Drive from the
western most side of Mayors' Park west along the 9 Vail Road property and the Property to the
western most property line of the Property, including all lighting retaining walls, railings, utility
relocation, curb and gutter, drainage and landscaping as necessary and to match. and be
coordinated with the final approved Town of Vail Streetscape plan for West Meadow Drive; (ii) all
design improvements along West Meadow Drive from the centerline of the right-of-way to the
property line of the Property and the 9 Vail Road property from the western most side of Mayors'
park west to the western most property line of the Property (specifically including any drainage
and grade tie-ins necessary beyond the western most property line of the Property), including all
drainage, lighting, art, streetscape enhancements, utility relocation, edge treatments, curb and gutter
and landscaping as necessary and to match and be coordinated with the final approved Town of
Vail Streetscape plan for West Meadow Drive. �
(d) Pedestrian Walkway. Nicollet shall perform the following improvements along
the western property line of the Property from the South Frontage Road to West Meadow Drive,
using new and first class materials, as approved by the Town of Vail and the Town of Vail Design
Review Board and in accordance with all applicable federal, state and local laws, statutes,
ordinances and regulations: (i) design and install an attached heated pedestrian
sidewalk/walkway along the western property line of the Property from the South Frontage Road
south to West Meadow Drive, including all lighting retaining walls, railings, utility relocation,
drainage and landscaping as necessary.
(e) Spraddle Creek. Nicollet shall perform the following improvements in
connection with Spraddle Creek, using new and first class materials, as approved by the Town of
Ordinance No.9,Series of 2003
. , ' ,
Vail and the Town of Vail Design Review Board and in accordance with all applicable federal,
� � �>
state and local laws, statutes, ordinances and regulations. (i) relocate the Spraddle creek piping and
- install new box culverts, as necessary.
�
IV. EASEMENTS
4. Nicollet shall be responsible, at its sole cost and expense, to prepare and submit all
applicable roadway, drainage, and pedestrian easements for dedication in connection with the Project
or the Improvements to the Town of Vail for review and approval by the Town of Vail, Town
Attorney and all such easements shall be filed and recorded with the Eagle County Clerk and
Recorder's Office prior to the issuance of a Temporary Certificate of Occupancy for the Property.
V. TOWN OF VAIL'S 4BLIGATIONS
5.Once the Improvements have been completed by Nicollet and accepted by the Town of Vail,
the Town of Vai( shall be responsible for all maintenance, upkeep, watering, mowing, trimming,
weed control, snow removal, debris removal, repair and replacement of any and all Improvements
located in a public right of way or in a public easement, including any and all cost and expenses
associated directly or indirectly therewith (except the Town of Vail shall have no obligation to heat or
repair the heat for the sidewalks) and Nicollet shall have no continuing or further obligations or
responsibi(ities in connection therewith.
VI.FINANCIAL GUARANTEE REQUIREMENTS
6. Nicollet shall provide and post with the Town of Vail a Bond in the total arnount of One
Hundred Fifty Percent (]50%) of the total cost of the Improvements (as mutually determined
and agreed to by and between Nicollet and the Town of Vail), to provide financial security to the
Town of Vail and to assure the completion of the Improvements by Nicollet. The
Ordinance No.9,Series of 2003
. �
Bond shall be provided and posted with the Town of Vail prior to the issuance of a building
�
permit for the Project.
VII.MISCELLANEOUS PROVISIONS
7.1 Amendments. This MOU and all documents and instruments executed in connection
herewith may be amended, modified or supplemented only by a written instrument, executed by
the party against which enforcement thereof may be sought.
7.2 Bindin , Effect. This MOU shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns. The obligations assumed and agreed to be
performed by each party hereunder with respect to the Property shall be binding upon such, party
and their respective successors, assigns and transferees. The covenants of the Parties contained
herein are intended by the parties to be covenants which run with the land under applicable law.
Nicollet agrees to make any transfer of any interest in the Property subject to the obligations
contained in this MOU.
7.3 Colorado Law. This MOU shall be construed and enforced In accordance with the
laws of the State of Colorado.
7.4 Time of Essence. Time is of the essence of this MOU. In the event the provisions of this
MOU require any act to be done or action to be taken hereunder on a date which is a Saturday, Sunday
or legal holiday, such act or action shall be deemed to have been validly done or taken if done or take
on the next succeeding day which is not a Saturday, Sunday or legal holiday.
7.5 Counterparts.This Agreement may be executed in counterparts, each of which
shall constitute a separate document but all of which together shall constitute one and the same
Ordinance No.9,Series of 2003
agreement. Signature and acknowledgment pages may be detached and reattached to physically
form one document.
7.6 Attornevs' Fees. If legal aetion is commenced in connection with the enforcement,
interpretation, or breach of any provision of this MOU, the Court as part of its judgment shall
award reasonable attorneys' fees and costs to the prevailing party.
7.7 Invaliditv of Certain Provisions. Every provision of this MOU is intended to be several. In
the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by
a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the
terms and provisions hereof, which terms and provisions shall remain binding and enforceable.
7.8 Entire A�reement. This MOU and the documents referenced herein set forth all the
covenants, promises, agreements, conditions and understandings among the Parties concerning the �
subject matter hereof and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between them other than as are herein set forth. All negotiations
and oral agreements acceptable to both parties have been merged into and are included herein, it
being understood that this MOU supersedes and cancels any and all previous negotiations,
arrangements, understandings and representations and none thereof shall be used to interpret or
construe this MOU.
7.9 Notices. All notices, certificates or other communications required to be given to the
Town of Vail or Nicollet hereunder shall be sufficiently given and shall be deemed given when
delivered, or when deposited in the United States mail, first class, with postage fully prepaid
and addressed as follows:
Ordinance No.9,Series of 2003
, , � ,
If to the Town of Vail; Town of Vail
� c/o '
' 75 South Frontage Road
Vail, Colorado 81657
If to Nicollet: Nicollet Island Development Co.
c/o Thomas J. Brink 600 Foshay
Tower 821 Marquette Avenue South
Minneapolis, Minnesota 55402
7.10 No Third Party Beneficiarv. This MOU and any financial guarantees required pursuant to
its terms are not intended for the benefit of any third party.
7.11 Indemnification. Nicollet agrees to indemnify and hold the Town of Vail harmless
against any and all liability, loss, damages, costs and expenses, including reasonable attorney's
fees, which the Town of Vail may hereafter sustain, incur or be required to pay by reason of
any negligent act or omission or intentional act of Nicollet, its agents, officers, employees,
contractors, or subcontractors, which is incurred in connection with or is of any nature whatsoever
arising out of the construction or the installation of the Improvements which Nicollet is required to
perform under the terms of this MOU.
7.12 Termination. So long as the Town of Vail approval for the Special Development
District No. 36 - Four Seasons Resort remains valid and has not terminated by passage of time or
otherwise, this MOU may not be terminated, in whole or in part, without the mutual written consent
of the Parties hereto
Ordinance No.9,Series of 2003 -
� . � ' �
above. �
WHEREFORE,the Parties hereto have executed this MOU as of the date first set forth
NICOLLET ISLAND DEVELOPMENT CO.
�
� By: Thomas J. Brink
Its: Vice President & General Counsel
TOWN OF VAIL
By:
I
t
s
ss ACKNOWLEDGMENT BY NICOLLET
STATE OF MINNESOTA
Ordinance No.9,Series of 2003
' . � r
COUNTY OF�HENNEPIN
� ,
,
This instrument was acknowledged on the day of , 20Q3, before
me a notary within and for said County by Thomas J. Brink, the Vice President and General
Counsel of Nicollet Island Development Co., a Minnesota corporation, on behalf of the corporation.
Notary Public
Ordinance No.9,Series of 2003
� , � �
STATE OF COLORADO) ;
ss ACKNOWLEDGMENT BY TOWN OF VAIL
On the day of ,2003, before me a notary
COLJNTY OF EAGLE public within and for
said County,personally appeared to me p�
known and by me duly sworn, the of the Town
of Vail, a municipality named in the foregoing instrument and that the seal affixed to said
instrument was signed and
sealed on behalf of said municipality by authority of its
acknowledged said instrument to be the free act and deed of said municipality.
1
�� F � tar c,t ofloiNnnc� y ��'t � "��:,m ni Pien�eie�ence�i`�i�saciion��ot tqia':o; , , 51 t, r� r�" � :;'R,���,��;�,�f:t�:!`,��,�,?`'r a a�k��a; �
��;':�y<m"�'��,'#,,t�SERIESrOi� � C�,}5}oah»��+'• M�',aetc9:�(89�34G SQ4dre,�,i4eeRaboYe:�r red� fdbB xi�1 7ha4�14�a'd4�elop9q,,;sha�F ba„1�esponsibe.f0 w II r
3 ;�RD NANCE REPEALING AN4'RE:ENAC'1"�j�`�d84.402;'squgoli�fee•t,6el W�fada�qt 77� � �4 Yr���O���ted;:.td'Prov�didg ta�ndscaping+andtll�hUng���,�u�
":�OADINANCEN0:14,'SEHIE3',GFTQ01 w#zE�.plandscapfn8r;" '�,�'�„����!�,:`'�1�����ti��. 'M+��Cqth�p�'upq�adPManta eR,d•"��lan�V�"iAPde-�s �.
� � � YIRING.:FOqTH6 MA.IOFi QM�NDMEIfT rS����mirnrr�um,l �Nrea requ(�re�q�Yf fof;5pe�q ��ailed le ds�ape plan QG ths l�edf': d l�Se'ro "����,�!,
' ' ' JECIAL DEYELOPMENT-��S7'A�CT'NO 36�;e�al �eveloprtii �ict Ne 38;i'FoUr";SeeSons Ided for rev�eqr�pd ep�KOVaI 9sf� �� ��b,��,
���:.THEAPPRO EDDEVE�O�MENTPLAN�FOR��.Poem��{Planeferenc d�IntSechtbnp�rahtf�l�'pdi��'y^�'sui:eMeBoatd�r����ai°������+ra�,ivS�,��S, '�n��: �������n,,J,; .
�:,�.^"�SPECIACDEVECOPMENT�DISTRICT'N0.361N�tamanc@en,(39,6B75uara(qet r33/n� »� '�:" '�� ° 224.hahiti9rde�61 csf1411g}t�lk�:- up�{rorleN�e� t .
".r-!ACCORDANCE WITH CHAPTER 12-9A';VAIL q`�:;:Parking and?'Loa�in� .�y�p�,`� �k r���;�z�u`�j� .�,z� f y��Y+,�nfpfRiet{IUC b��at''§oyttV$Cde;r.g��i,¢Fl�orit��e�-y ,ya'�s
''„�TOWN:COO�•>ANO SETTINGFORTH,p,E�AIL : Tha required t�umber�;ot RH-sC�aet�;�ark��1g'� cep t Road tq`s�1QN!existldp frees to be F� oved and,`ad � ���^
it ,'�a; a 1 ;�EG R07'HER *ah�k,��h4;re?��.,x�nd�Wad(ngldelrva�yi,ber[IYa toc,tiSpebtalr,paelop�+'o-�i ilitional survey ln ironl`ot the Scorplo,bulldingliT 9r y,�r�so
� u :^Yu` �� ��;�� ?Y�r'�.,�;i,��`��r�:��"�^���i;�'�mant Distliaf.�hlo 3$,�F4�i��Seqsons Resor,t,;ehall+� tidertoshow,;acourateseadesfa�`the:;eonatniqtlan4f �"'�,:�
�,'.,1NHEREAS,`�Cliap4br�129A'"uf,the 7owp'sef CVeil�s'��be provided';as set fo[th in tha Agprovad'�DeVelop,�.�+Z�s�theg ath.from the Fouf;Seasons to;tfle�bUe'.�fop et g�� ',
gi°,�;�on{ng�legulatlone`�permitstMe'edoptiar[of$peael� �ent�Plan referenced;;fn Section,!4,of ttlls;;ordi k, }.�We t Stav,abanktir F�naf+design sfiall I}e�j�vtewe�l�y�, ��r
�;Develo ment DiaMcts and�'s��. �e� �;'pance 205"spdces:[a Uhed �15„�epace pf��d+�����nd a{7prOVed �e�Tawn andrt��t,qe�l����yl� "�
�yMHER�AS,.:Nicollat �slarxl,,Develo men�;wCompe„' edr lo no instance'sfi9i va�t�aoea„1Neat¢Meadow+���'^5,�,�a(�1 � �`�`�ij�;�+�z�"0���?��'}'"�,�i} n^��` ; �t �'��ti�"'.
�.�Y, Ina,;has submitted An apIt�on;faF,�a°tha oK'�Ddve,.or;itie"$9ufk� Fi��Caya��f.teQd"'b6�"vaetls lo ''+��'+�'�� '� ° .k�"',�� �i`�^f�d��
,,emendment:�o,';.SP�lal Pe�ieiy►�1�Ak U(s rict�a,,,;t,oadln del(yery px°gue.�+L d�op-oH�Pidc.�u p��w�tttout�� y�},231r'FhaR tfi�Per',¢te�obs��o'r`4�`00",��pf���s(�
�,.`36,FourSeasons;Resqrt,and"-i�K�'pkM'd.•;4 +� ,�Y,:.�hei �r,wcitten;e"proval�o}tpe^T�n9f=�Yall„:�itte yflna� das(gn?�Itqprovementa elong',Westy,Meadow�i,�t,�; ;
��SWNEREAS,in accordance wlthrthe provi'slons out �pequlred_p'arki�g,spaces aha�r,noN�ja.lhdlvldually �.Prive trom,t�e centerlina of tpe�,�ght.ot wa tseek+r4�f i'�i
,Ilned;ln the Zoning Regulallons;;:tha FlanNng$En T�t;solQ.treosfeaed,leased:�obnveyed renked yoF re�a�{��ti?1hg,��'o�c"°MSeasqns,prope ill�e trorh,•�aYors�n��?�
vironmental�Commissio� held Puhlfc hearings on, at(icted to any person;othec,than',a t�nankr;occu���;`y'a�y,Park to Westergn mo�t property�ine of lhe Faun9ea F µ�rS��; _
#theapplicatlomand' i � � r`� r�V�,lpent or,user,ot,the bulldin .fof,w�fcvteasp=�e,�'��,���d,ttteyVVeiqt P Pe�'�X Ii�e 'ttl'his9n udee�all��bm ��'�".; '
i�issl�nEha�'revlewed the re criberod cMeria fo 6h�e'�'.``��f1IFl6",R6 yI9H011S��49�ne[tces ot'the,-�iwnV7��'�f��'eme�ts��l InFl4ding;:�q�dr�,�lage,'^ICghtlngqn,�y,a�t��.+�;`
��:emendmenC of s acla�"dePvelo inent tlist�i�s a�d�;�?ffie faregong,language"ahall not;:pt4niq101he;;Yem'��'�streetseP�pe�prhhenceetcl�F�Inalede�'ns�{ah I malch3+'�'g�.f�?
�:hes submdted itsPrecommendatlon of approval to _porary tseeao�hey.pa�kiig„'sP becl''to`lt�e a�rork�����det�;heQdor,dinatedwkh`the topPoBetl'T�ha�f;'�ail�r�' �t
��theVaiFTown Council and ��r;+ � � t�. ,., ' 2"��:uses ou d twl�i,n9 6U��,, �� �R�d ' �t�e9t�6g lan.Jo,�klesl�M�dnv�!DYAJe�er4d'[�hell!u.'`�i'��'!!'
�;�popose�d amendrtient to S e al�Develppm nt Dise��Va�rqf�e�Town of Y�11�1��'����'�l��������4 f Fh���b�����d�'�Q�X�6 �, �¢Pcovali� the��.pes�g�Wk����q�
�;trict No.'?.36.Fout':SeasonsResod'complies wilh���Sectlo��'��'t Approval?:Agreem�nts;tpc,Speclal."Qe°'�„�''"�,"�,AS.��Y,���9�,��v''��.�"� ����' �"� � �'��"'+°��,
��he nlne:design briteria.outlined Ip'�ection 12 9A e ti yelopment DlaRrl�,trlo k3,6,��ou�$easpr��„Resois�„�1� ,F�����4'�.I'���the,;de�vel�a�pe',In„efia11 �cor'.;arat�.PuWlc�art�F ���,+�
af the Vail Tow Code and that the'applirznt has � , ?�;, 4,,.,1 . � �•,� � ,�' !��
��demonstieted t�at any adve�se`effecfs o(the re-'�1 fihat the:devebper,shall proJide'deed Pestcicted °�"�4,�nto�tha,deyebpr�eFlt�:pnd'iahall-poqMlodkg'4alf;art ,��,4� ;:
';,qUested"devlations;from the.;,developmept stand �yshausing�that`complieq',wittt tha Tm�,oi Valf;;:ErrH i��,�Iopoeals;Witl�the A�rl Jii PpWlosRlaca�Bo�ril;¢�bl���,��,�tc�,.
��ards of::the underlying•zoning'are ouNveighed by a ployee Housing requiremen�s(Chapter 12-13):;fur a�e����tdor�IpWtand�approva�+��.M+ e;tDeM¢�gniFR�evftewti}y��H�
�5 the utilic benefitg;proMided;and , ,�.,.,' rP,minimum,of.G8,empl4yees orl;tFie Fouc:r3eas4na�,� �f Yq,� �r� �S��t��'a�s�' �V� �"� c ��,��.��y,,"
�WH REAS,ttle:a rrnral ot.ttiA mejoe mendment ?,Resort site;,apd+that said deQd-resMcted,er�pYoyae���� ,�^ ��:.:�"� &�,j�t�;;�� +�'t�+'��1.�" �`��������
V 4 �y�i
�;to peclal Deve,loPPmant Dlstricf,No.�38�Four Sea,h���pousing"Shell,ba�+mede�avallabtePfop<�qcpUpancy� ��?�Th de�'i��d Biai�d i�ae.�io';;t�ar'I���g�',f�e*-fi„';�i���'
�+ksons Resort,arid the developmenPstaodarcls In re-��,�and,,tflat the deetl�rea�r�cuon8:ehau te r�orded �rf�,,, ng 9rt , , ���, f��q P.��,� �
�,-,gard thB�eto ahall:not estabifsh.precedenca o�enti, ;with�he�Eagle:Counry:'C�erk,&�Fecorder,�piipr tb�j r�,��t�7���B��d�le��nd,l���pro�l���,�kr"���e�°,.�'s'h���
�;+:tlements elsewhnrecw$hin�he uQFed b�ne:Todwn ot`�:'for the Fau'„Sea qos R;eso�terwtlficat��o�Q�upan�Gyr�����a:"Proposed;trydrarit'raloca�lon°et'xl?e N1p-corneh pf y�'��;5�
`?Y H Munlci�al�Code have beert sent to e a ra i� ' m�,;�t �f t�a;�'?„="�"�+}T;�,�y$i�rs��t{+q�^��'k� ,'ks �lhaproP�Y'shell be,, recled tQ�beileval_With";the,,+�r,��
P �« m" P�� �'�2�That t�+e;.�devalopec:'sdall=meef:.tyllk,�he;Towo��.PrPposed s�dewalk,an�land¢ceptng w1111Se,�ocated���ps}i
priate partles;a�d.;' ��,,;, � ��„
WHEREAS,the VaN Town:Council.considers it Ir� ;siatt to� re Qre a m9moran�lum,6t unda�standmg� �•as to naR.l�te�fere pweith`.tlia opAratlo�.of the hydoart s ,��
�',{he besf f�tarest,of the puMic;;.healtki,safety and i,;;ouUlnfngPthe•responsfbil�tles-and;re'uiremencs oY�"���;�;h;''Fne'�osai9tairr ��'th2� �eS pss4'ao�e thaG sr r��� '-
�;weliare'to adopt the proposed�qpprovedlDevelop ",,:ihe required,ott-sit�improve(nants;:p�owto secorni���'�'.so e�towmards�hieioed4�,�4��.�+a����P�,;S'��fi�a,����„a�i
�,`ine�t Rlar�for,Speci$I Develo�menS 4latrlcf Nol 36 3�ireading of;iha�inanae apprt>Km4 the.-ipiaf.q�����, ,�e,boulder,uyalls,8n��gradin •�pt thq SE;qomef����'
�"Four Seasons Rasortr� �, ����ey� � r� �tl amendment:io� ecial'yDaYalopmenE•pls�dci No, ���- �y
�• `��'= E,�,;36.'This mem be I mi ed'ta�all s�eatrsoa Inegll,�n�i �;v�:�a eaxist�9 2 38"�MP s tt�rodu�fl��e���¢�o11��F!a���,��.`.
� NOW,ZHEREFORE BE IT ORDAINED'BY TFi ytclude, but.not p �� F�� The foundatb We� P��� r �"�r
�,TOWN COUNCIL,OF�7H�T�C�P,V/\1L��rOl�i F,p'rovameNs:along�Souttv�Fro�tegB:.Road and;West�r ����•$�uctU[ersha�f be�mo�Ifl�,��eeco�p�o�ata�Zh��'`��a�'
ORqDO; HAT ? , . s� Meadow b�ive in apcoidance yvdh;tha,'f q1 V 1�,.���; �,*.
„�n , .,�.T ? �iw+,�vs"��,�a��nt��4��a�aK�k� ��iStreatscape;Maste�Rlq ?3a ended`,� `r r�"r��{+e� ���stingSoreasee 3�ddle�Cieek�kva����arjii��Qµ �����
ASeciion i: Purpose of the OMinenee +�' ,i � {�:d, •t r '�� '".;�r�e ���°�i s��,+ � �T ��Th�p PQ � p''� � ��r,��
ti,,The purpnse of QFdinanca No.;�Q $eries pf;?2403 is�a'3 'khat�lFie.develppen shallk racord,a,dpei�age� ��rete box gulveRO sh��}p.e rnqd�e�d�tat�vp�h���1d` t t�
�to adapt,An'Approved Davalopmeht F'Ig�r;:foP Spe- �;:,e�s�ment fot>Spra,ddle;�Yeek Tfle:ea6ement�aheiP�.exlsHk�4Pho��veu�f �" k e� ,y^� �t�, � f� ��
� �i , p sor rQ ��MAII knowrj e�(gtln9d ��Ii�es ahalFy�e ah ��b���
aal'DaVelo ment:!pistnq�,Nq;;*36 Four�}Seasons��be pfepa�ed by,thA�qevelo er and`;5ub[�Ined�
E:,Resort,'aq�4P presoribe eppr9PHaIe developrPent,�,,:yfew�psid,;apProved.,tiy the T�tl.;AttafneY,���Thg ,.'?�plara lvdh'the propos9di,dremag �hlitle�s,.. � �;
,�standards far.$pecial DevelopmenC f7istrieC No 36�°8asemenK,shali:be tacordatl w�th the�,Eagfe{,9u�ty �y,`4'de�tq cl�rf�pot��i�l cgnQi�gn�� 1�`.��'�•,�F" �,�
.In�accoidance;witFl;ihe- royisions.of„Chapter 12���'Ctetk&A rclar's±F?nice pbo�ta:►heiesugndQ+ott��> k�9t'�heQvoposed�qll�,�MaS'kne9tai e, o�tegP<"�� a �
��„e�t,,Vail Town Code; 7he'under n zone le hct��'ar�pora�Ce ficet 'yef�Occup@r,igy u1Q`t e+,� o�r �,�•:wa k�t tha'east@��p.,rtlQ�r�f hh;";p�+ ctytethpl be�p ��
k,.for',SPecie4 pevela menT.'Disd?ct�hlo*3G'";shall�re�,Seaso�s eso�h� ��:'�",�y f,��,a�ava'�•���,','. f'�'.,a re�il�ned� li�, Ra°t_ g�! Ea, i��`y�t,�QMax(�tiFl9��,y�,����
..P .. � i _'��� � . � ���Y�`��'�"t,�rm"�y f"� , �� .�1.A�6fi+��'��.�11' i�� �.�'�v���f� "�'4�c��"".�;�tl�ai r���4.,
� i ma(n Publfq�AccomToda�lon zq�e�diatr��ct�i�� �,������a!"tlie�:de�ref�e�s�al�sU�im�`e fl�l���f;i�'�k�1 Fjr��"s�gi��m k! '�+��tlJ. �. t s W�" f�,
� �'Sectionr2."''Estatilish enl� roged�4s,��ulflii �'%�bW(din Finat9nalspisNi' h:al'wal��9�t�4�`end ��?��zIanS-��6,�"� +� 3G,�`�+t+��y� � ������'�`�
�I f. �k' fd 9' � .,.P,�A , �� �i �� �� a'W'� 'c`�i r�,�����.'�
s�Plamm�gCommisSfa�Repo�E,r�.� "+ L,,j:�' ?��Gdmplete;colonrende�iF� a dtyre'vfew„�nd��pp'loval,i�`t�n��cces������hs�4e° 4 � I � I��,�,ok��er�1oTM'x�a�" �
.Tha ptocedural requirerpenta,des¢�ibedirt�':Ghapter�kof 4be Oesfg+��avleW,?;.�oerd p19or�4��sWbtll�ita�Qf�� �{ybanch acees;�d�vq;wal����?����'���?f�"'�;^"+�^���� °" `'�
!',12-9A°ot'.the Vall ToWn Cod9;;,have,bean fulfdled. `an aPPI�Gation tora 4�(Iding�e[�,pk,.�}/�+�a„��,�`�5,y>1 sV�,� `"':rTo ot.:lvall elevadoR`rosf��e;±'Fr�'optege d�2N4e5G'��' '�*:�
�.and thecValPTowm;Counejl has�received the racom ��"yc �?r= � � „�,;�;n� �"'. a,,'y�ti��F'S�ru�,,�' + *���eado�4rtvep 4 p �F3�� �#'�
, ...
�"rriendatlon of approvak•from.Uia,Planning:&Envi,+��?�;5 That ttie=�deVeloper,;;shalGs�bmit�a compreherl� ,1�� ,'tIn` �:>' all�aF�d`,�s�RH5$�(�sfY a� w°n�����Y�.
�'rpnmenfaLCommisslon',fa�=dna maior,amendment�r�s�ye sfgn,p(ograRlzproposalyfo�„th�,Fqui,�Seasons� k,R�1�� d���Q4�r4�� ry�`�th �5,� � y,�,� ,�,
kqo Speciai Dsvel.opmen��Distrfct N4,36,^Four Sea ;s;Resprhfar;;[eV�sW eDd;approval;,b�;tha Desi Ra-C��r'�tessary�n :3,t +��,� ���1 rk�+�'���N�4� +�`��X'��T���`�'�, '
i��sons';'Reso�C.,.�.Pequ9sts,for•the'amendRie�t pf�' k�,�iew.Bpard''pno�;to';She IsQUance„g�Fa�;�'empo�aly;n�k. �:&h�w�,dge�aof e?c�(tn9�,p°ace�oi t���'age��j���
t'�pecial,.developmentdistricT.followthe;'pYOCadut9s�,CertiOca{a;of ccupancyitartheEour,$1¢a6p�s�6 ?^� coQdorictvit�plan,9ah.,,,s�ow �r��atd�'�;t� �� �`�`��"
. �butlined'In CheP(er;12 9A oR the Vell Town:Qode,�, ;go�t u rtM,,hi,��� �;,, �4 �J$,��,;..,�±�4'��� a�P�ar�� �. .ri�EroSlor�;cont ol plag,, �I�-��electric'��`t u!'��" ��
... , . �.� �t,� � : '{'.tdU s,!'�,4��' '.h.�i..;,a�i r ,��Y h ���r�,S';� at �"'�;�'P?�`th?iry�Y Iy,r���^C�P�'h,Y��,��:,� 4'lw,� :�3hQW,gfadingeto��ld!RfQp � y��4�"r�x.
�"�Sactlori3. '"SpeclalDevelop.rrlentDistrlcFNo a8 �+�,8:'T.hattMejdeve�opetshay�su6mfGiev�aedefC,Fiitec ��M1�O Showfd�iyeWa,Jd,��1ade��� ���ISYat4�(re o�,;pivi4 .a„ �
" � i�The "Spectal Deve�opment Dfstrict.'.Is`! herepy _a,luraf'plans,4(the bufiding aGthetchfnei adJacent tc a,�,�;P�e� r��"���" "x�q, ' �r-�,��" +�,;'�d`����. �
F��Rlenddd ta assu[e..aoFnPfahe�611re,daveloRm9nSy thaAlpboemwfo�rev�ew�,a�di ap row�byt Fha�Das�n� St�� d(1�U I. � I,af�o s �,.�',
it and.e�'se�ot 2he ar@a Ifi a mqb`tierr�a�woUYd'pe ha{�-�PQView,BnaFd pr1oF to;�ec�hva ng�}ther,o R �Y,{a(� 'f'� �
a�rovide�'ad�quate9openL.spece�end�a+'ihecrealoni.���DeveloemejltqlsM4tNq�3�am����"��"�$.�i��"' >2��, ,=� � �" � �t;
i`amenities,and p[omote the goals::obJectfves and�:,; 'P ' r �i4 x'� ,'+;�rv' �t`�'"*"��,��^�+'� ?4h,y�;� t, .. �e! �y, � �.�
r policies;of t11e Town of Vall OomU�rcehe�5ive P�an � T }{he`tleve�oper•sihall sul��rN4 WY! � a�fga�� �d�, � �, ,�� ��2 aR+� , �a., y T
� �� ;g yr� .�k" '�7y,� �Qi�.��"��^���'a�t r s�t ����+§ 4�� a..;- ;� �f"��Tti';�{�d�a�il��llwj��k°�y�f�ty'„�j�,{..�c.a ay��,� :y��"� a�l���f-.i�L��'��:t�t.. �#FI�Y�:$�� :..y�ATj„
' y�p ' i L.y' w; r.� � F �S�-.��N�ri�i� y'4.v rt�.R^" j�$ �r9�t h5a ��t ���fl�Ofj�1A'i A�, ti�f10`RP6U:[C�'''Rn "� ;�
� 'x7" ' �:i � +� y w ad a��s°,a "yt ,���,�ys .�lnenk Fyld Nd 88,t.. k1Y1 ."thlR "�
� 9� u ! �+' � i tx a ,� '� ,��7.��.s' � I 911 � I F��
� ,ti � t, ¢,�; � �� r '?. '� ,��fi 4�� k��Mle'�p�p��qs��������� 3,dllt� �`uy+'�
� � i ,� �.�r.tw� .�s;�.�, .�s_ .a., , prol 4� k�� w
�u�i����� ��� d��
t=ud�ame�nt;d4mG4�W����"�`nt#�iiict��
�`�fhe eP���r�d�eNt��epAa�a�'r I mwltaN '
. � � -�o�wu�,kla'vmx�ii�F�ha .�c��l{IQ�CA�/P� �
,aCa�mlasiOR fldd�Tawrw�un��eltbl"hevler��
'tspeci6P deVebpmsnF alia�o4 4P�� �
;epplicatlort to�aestak�iaFi-the'ap�
�smoR follqWlmg tkla p�ocedt�res�4�f��i
'i#2 9A-4 Vall Tt�uva�}.q�d9 ��Y]�'����M1�'i� �,���r
�„27 ,�hat,lhe„t�e�'elOPer aha�ItifekerntaVt !k'+.' •
;;eommit any�omiasian:to ceasa=:the c1lmk►t'
�;Uon ot the'•.CMateau,of V�i�Motel=untit a4a1��net�.g
�a demollNon perpllt Is;isayed hy�+e qeparkrt�ent o'I "
Communi'ry Dqvelopmant rk��,:�,d��� k �,^ t �
;SectloD:61�1���j ���,`�rw y,��,MYa��d �s'�'�ky�� �C:+,�vur'.�'
�>If a�y part aecNon,.subsecGon,:sentence°ciause�.�
�or phrase'-of this ordina�ce Is fo�any reason held
to b9 Imrelid,such decision shalCi noE�ifect'ihe val„
�k11N�of the�ert�atning portbns of thls�ordl'nance
and the Sown CoundY hereby dederes.iP would
•have Passed this ordindnce,arid,each pert sea y:.
Non,subsectfon,sentence c�ausa or phrese there x,,,
'..of, regardless;06.lhe lact fhat:atry ope oF more ,
t parts secdons �ubsec4on� �er!ten�es„c�auses or�
�,phraseB be declafed Inual�d a q� +�'�4� i �:
"• � ;: �r' ,'�r r �
"Sactlon 7: a� r' .«y�'°��;: '�`'`
�,aThe repeal orthe repe e�`a�re-enaciment:�of any+
°yp rowsione ot the V I MunMdpal Code es pernided.�
� �In this�ordinancei shell npt.affect a�r�rigRt whfc�?�,�
C��;has acci�ed,am!dury Imp�I::anY yloratfo�cha[ ;
;r.occurred:pdor to'the ef(ictive date qereof a�y.;
prosequtionnCAmmenced,nor:any other�rtue of';'
'+. Fxeeding aa'c�mmenced under qr by.,
��Phe provisioR repealad or repealed end reenacted w�s4
'�The repeal,of ar�y ptovteion here6y shelY�1o"t revive��;
anY Provisfon or arry:wdinanoe prevb�sly repealed,i
y or suparaedea�u�les�otaxpf�ssty;stated harein f,y
p �
,t� .:.� ��i.l,��{,�°'�� �o er4.i i '. ... 1
• 'S��ti,�s 8. .,ie -':mkaeWtions and ordinances or ._
s_..- - , . ,,, u� �����, � � aria,inac v�e aeea restnctwns shall be-re ea�;� io'Nmg��aesignreiated�ssues�for tinal pesign Re i �,�y !f
t�ard thereio shalt nof e .h precadence ar enti 'with ifie Eagle County,Clerk:S Recorde[; o ��j",t Ylew AoardY[evleW and approval at �� n�3 '��'�+�;„�,�
emems alsewhere wIL �Town Q y ail and �j' ,�tor th�Four°a T pn9 Resort rtif�Gate of Occ y�y,`�J,i�g'proposed,hKdrant relocatlon'at the NW corne�qt^��rF�`?�
' WHEREAS,ali nqtices r,.., ulRgd b the Town o( - t �a �
�iate pua�r�ties�nd e hava heen sent.to the appror,��'2 That;tt !o er shall%meet�wich�`ihe Towrv�'�`psH,pfoposad si�dewelk'andgland� 9wlEbe acetedi�4"j�;'�
� � lHEFEAS,;the Vall ToWri:'sCoUncil considers it'in;�staif,to,p� r memorantl.ur�oP-understar�ding 4�1�as to noYinle�fere with the aq, qf th'a:hydrent���t7d�.l�
.�e`best I�terest of the public health;,safely, end„outlinin th_ .. ons16i0tles!end requirements oF�'� +6 The,i.oross-elope pn the Meadow Dfive Iw;y��
�;";welfaie to adopt the proposad Approved Develop-^A,�he reqgulred off s�te Improvarrepnts,prglor;to sac4Mfd k;�;welpke shal�rrieintein.a rnax�2 p{orbss slppe tfiat�s� �+�h�g,
�N ment Plen.toc Speclai Developme�t Distnct No 36, :amendment toe'Sp(ain Developme�nt Qlstrlct�eNu���'�cI�T15e boWlden�alls�nd gradih g�at th�e SE corne�°�'����
FourSeasons Resort ,,;� � -
f + .`." ' ''+` 38. This:r�l9morandum of understandi�g;ghall in,�z i "ot t�e prope shalF be�podlfiep es iq not Impack �}� '�
� NOW,THEREFQRE 8E IT ORDAINED BY THE �clude,,put not be'llmitetl tq ail sireetscaping Im �:u�rw�heexlsting2�6",EMPs �' �' t,ay S!� �+ � �fz1an��r.
�TOWN COUNCIL p6 THE TOVQN OF:,Vq�f�r,CpL '�'provements�aloag South Frolifa e Road and West�,�7fy d'Che,foundatlqn wall ettha S�Cofner Otfhe park ��,^;
ORADO THAT � sn�+,rtr,. H y�„n � w y';�`%S eaatsca e�Masfe Pla�eas am�nand rowrr ot vait�ry���`e�zistlngcSP�ddIe�C eekQdau�cdrytq ac�oommotlare the����,����`
� Sec¢on 1. ; Purpose of the Otdlnance, ' s''�i � a,P 5 ,,+6 �n �+�i,Q '; �'� �,'��;,�ye� g The:.'proppsed�;Spradtlla,CFeek vault�and eott����?;;�ti�'
zTha purpose,ot prdinancallo:.9,Secies qf 2003,'is t;�3 That,fhe,.devaloper shall`?record a;'drainage H;?� crete,bqx culvert.sEiall b modlfled to wo4k�vitt�(he�����Ft'
to adopt anp„Approved Davelopmentt'Plan fQrSpe- 1'easement lon'S(yratldle Crqek};She,eeseriment shall��' �exlsting:.phq�le vaulC: i�p „,;,,. h .�Aa� �,,�,W,y aa��h�����-.
cRasoD�ntl oe�res�aribe4ap�ro3e te develapeS ent �.be prepered'by therdeveloper,and'submitted fo�r@-ga��` <<an�`kit�e�rOtitt6 ualll�las�,:slldll�e�,ahowq qn"�a�i�*F;
�'� P P P fn . tilew and a roVai �i
PP b7+<`�he Town Ariorney The,1¢fi��r..p w,h th p rio e d I aga and'NRiI'tiea[� ri� „��, �.�
�,.standards forr3pecial.DevelopmaM',pfetrict No:;36, ,easertiehYShall,be:recordpd'wj,th Rhe Eegl,e Cnunty�";y��de�to,cladfy pptential eonflict�,rf*T d�'a�t ?;"?� t� � wr��^r,�i;
.,in a6cordance with the provisions oi':C6apter�12-�.CterM&Aeaorder'B'Ottice priqt::to ipe�issupnce of a<r�����,g:The proposed walk theQ,r�eet�the�r�tage�aopd�y;,�x�•
y%9q,Vail TowmCode, Tt�a"underlying".iong dl"strict.r!Tempora Ceraficryte�g(Occupenc��ar,the Fouf bs�,.walk at the easfern:pokforl of.the yropa�ty�shall ba �r ��,
, for�Special Developmant;Di;t�ct,No.r36 SMall re• Seaspns�esprt � 3 u t ;(�,{F;'r'�n i,l�p �"�;��*�reahgne�l sl��k�qy Ro Rhe kvest td�7yq�d tt�e e lsting ,� "��,
.�"ain PubticAccommodaUOnzo�e�llshlct ' '• ;:s t� �..� �<�b4 ,`y,,rt+ �c�„b;�� �+�}�s�, In,et �{;s tr ,�}�R„w k�,,,� ��t��}�,Sr�ak � ja4�,�r� fy�`r;, �M;
'vr' ° ?.;`. � ,", r > 4,Tha(;tfie devefoper shalPsubm�t a.final;exterl0�`g�?: ���Fite stagi �)4d�(fl�n�l}(�ove��et�tars all,��e�hQW�++�m`t�;�,
":Seetion 2 �"`E§IabllsEimenf: Procedtiras FUIfIIIed,��bulldiAg;.,Fnatedals IiSt a',tyPica�,;�vell;secuo�and�t�'�4.n 18�s::,,�t��,���., � ,�?yy.: ,s�r.��,���y'� �t.;t¢tx,�i''.
Fhe��ng Commission-Report, r � i i<,,ja,complete.color renileri��gs ior Cev�eW ar�d�approval`y��l�� �at�i�i�ngN walls wes�a,ap�;'�die�pading,and;delluery �,�;"��K±.
�, pracedural:requiremante'clescribeit m,Chaptar�s,pf,.�he:0esig�.Revieu�{;9oafd,;prior to wbmittai af �,��nch','acces d�lke wall��,"�S�'r,'����ed"x�y"qrdar 1�a� ,�+I�;
t{,12•9A ot the Vail Tow�.Code have beeq fulhlled andRp�lcatlo�fora,bul�dingpermit � ,��if yn� �U tlj� , ; r . .,u � +i J,l�„.
x;��m ndation�of ppro�al from�thee Plannjng B�Envi-.�5.That tFie'develo'er shall-submlt a coin�prqhen�,�s��:Meadow��rlv��8p1 he��eds as�185 57 Ty9opRd wast���N`'F yi,:
r'ronme�tal Commissfon�for!the ma�or amendmenf slve,sign prog rertir-proposel-.fo(the FourSaasons�%C'";k.Railir�gs,st��ll berpr{�Kided for pat�l,s Where nec��,{p�`��r��
�o Spec�al Daveloprr�ent.District Nb.36;Four,5ea;7y��orhfor revlew.and approvel by the Design Re �h�s�essary ; ,� � �;;r p�+ ,,, y � r y t, �� ,��a;?;;Y��.�
s;sops Resoft.""Hequests:foc the amendment of a�`:view'8oard,prior,'to the•iSSUance of aTemporary�°�;'� I Show;edg9,�of;exlsting,pay,emeht fo�Frpn;age :��+ �.'�y
�;sop`e'�ciel deveiopment districhfollow the,'procadures I Certifiqate of Occupancy for the�our Seasons F}e �;�;yAfoad on�civ�l plahe and shh4w tz�etcph point*;',,?x� 6��pr�'ry��i,,,'��
�„u d m Chapter 12 9A of..the Ua�l Town Cqde � sorj � ; � �e� ;�r� 7 �r,ry:�` "' ,i��.��'�`��^,„���!��'$how;g�adingrarou d p olposed elecMa Vtiultr"�,'�Fj rfl' r�`:
r,Section 3 � 'Speclai Develo'p ment Dlstnct No.36<;;4'_6 ThaC,t,t�e_devaloper shall sutirrnt revls9�architec�,=�i�xo ShoW,drlveway,gr'ade�5�,�p4f aleVaLo�s;on p�U(f �}` .�i��.
�The Speclal ,Development D(stdct 'Is hereby;o lurahplans ot the:bullding at the,corneredJacent t0 r.y;;, plans '�r i x �+ {a �y �,;!r p� `p'i �r{y+°��;
u.amended,to.ass4re;comprehe�sive.,development���the Alphor�for„review�•and ppp:,'ro�ek-bytFia paaigry,���,�y�,p Show�sddddlor�al„T�/BQN!alevetlo�s:?o�.pppl,���ry��r�n,�
;4and:,usa ot the�areg ih a�marrner Edatwould ba har.-,•i�Revlew;9oard prio�;tp second:reading of�the ordl �y.��;tily lvalls � ���y;�u�{e.���+F�1y�""Y c?l�z��� ��,�p���„��,+a�n r�a�k;`
moniaus,wlth,;rthe general:charmctec.of the Town;'��ance,:approv(ng.the major amendmen tp;Spqq�a4��gp�gt ��^r u��r+��`Y - ,:�r���{ty�G�"�5 a„�w`�"��wy��{ 4,:;��'
�:'provide adequate •open-��Space ,amd+ recreatlon Development Distf�ct No 86 u� a'� �,r�.�,s i r�� �r�r��&Tkiii�;t�l ��e���p,"�ehe�hhegu�F nkia�cq�t;t�'S� �y ,
�'wamerntles and promote the goals ob�ectlyes and, <:s , ,, :: , ,:t ��„Uon ok'�a��blt as s�Flesart w�thin,(re�k9$�a ^,.�, a'
pollcies of the Town af Vall Gomprehensrve Plan 7 That tha develaper shail�SUbm(t�wffttpR'agree���!'���P4F�the,tfttfq��gt'��I a�roval at�veCO�id tastl,r�� ,r;'af+� `�
�r �. i ti !w� s +i, y y i ,.t - �� r t� M ai t�! {, f" w .�H � �'�
� f�t f �„ . 4 �:� Liy 1 4 y� ; n � � 4 d�P` J1kv f J i � If �v 'J,� l r1.
{ + 5 7 r ; s� r ,�' � #r ;"w#l rc t� ing of�h'a�InquNse amendiny 3pecial QeYbl�m �w P
' ��� v.w, � �,� "r,� �ment k?Isvict No �G.iF�"rsea.yans Reso�«and a �t.
I " r �� � Conqnuei dfllgenGy tow4rQ th�,;�vmpldHaD'of fhe��z��k 5 F , �
- �. -�'� --..�_...�.� e � �°"'<�+project':ji�he develPpat dt+�a;hoY�rt aqd�III ,?:^;�,,,,,� ,;�
�� entl wor�tawa�q�.',1ti�,am�flqlqtlC�c m M�!''�I� .
�trerh tl��u�cc"or a stege o�t speclal e-§
Yelapnient dietricKnwhhx� s ama IIm�t6°i� sed';
Iha�apptoval af adidfs�a�4dsvabpcnenC�"dl�skric{6
d�qii�pe vakh Tha PlannidU`;arut EnV��lm �'
,sGommlasiort and;TOw�r�ox�na4 sImIF reWew�e'�
�special tlevelopment dlstrlat�pon"submlt�dt 4�'a++�
application to reeateblish the spee�af devebpmenC
�dist�lct followmg the procadures putli�e���i$ee:�IQrp
12 9A-4;Vell To�ryn�OoQe �;�5� ,k�5g 4��f ta s�Y
t �. ,�J�r t A�F"4��'I"1�,'?��,��
4>27.That th��.develope��shalt:;take ndxt4C�4ni�
C commit-any omisslon to cease the curtAertHppem-�
��tion..of the Ghateaurof Val1 Hotel unUl e�li�le�s
+a demolfNon perttllf IS luued tiy the Depq 9nt of
Communiry DeveloPment �e. �:� t
� Sectlori 6 4,6' ��:',a r�t r'y,��S�c,�, i,µtyii rk''k
If any pad,sectlon,subsectlon �entence.clause`.
or phrase of,thls ordinance is for any reason held
qto be inva�id,suchdecislon sfiell not.aHect the val•.
x(di�y of the remaining pbrtiona of lhis oShcnance;'
. .and tfie Town'Coun�� herepy declares il would
'.heve"passed this:ordinance�and each,pert,.sec;;
Non;subsectlan,sentence,c�ause'or phfese there-;,
.of;•regardless ofrthe'fact that any one'or mor9;�
'?parts secHons;:su6aecUons s�ntences clauses or'
�;phrases be declaced Invalld ,� '
t M �ri r .,?,
"Seotlon�7 t o �;' r �„', .�., "
�a;The rapeal or!he.'repeal and-re-enaclment of arg!'�
,provisions ot the Vail Municipal Coda as�provided:,,
hin 4his nrdinence'ishall notr:aHec!anp.right wlt(ch '
� � has.ecaued,eny-duty pnpoaed,eny vio(aUon thdt�
�_occurred pdor,to:the ett��� date he�eof any ;.°.
„prosecutlon,,GOmmenced, nor'arry ofher,actlon or �
piocaeding'as cor{�menced under ot,6y'virtue of '?
k`',the provisfon repealed or'repealecf arid reenacted d�
Tha.repeal ol azry:provlsion here4y shaq hot rewvs,j
„anyprovision or a�y o�dinance prevlously:tepealedA f!
i{',w superseded unle ex�ressly stated hedeln i
t c r t��r 5 �+� ,'� -
t�.Section 8 F '�ai;�,'.,`��y ,,� " ,�: :
�1 All bylaws orders',•�resoluNons and ordinances o�
�parts thereof;Inconsistent herewitA are hereby re-,
tpealed to thq:,eictent only of:such inconsistancy ;
�TYhe repealer shel4not be aonstrued to revlse aay ;
�ot�heretokre�ePeel¢d o��M�nsnceGO�aPe�tt�reref,�'
� �j�r � P*�� i�w"<� ,,�v�t,���4,i 1� ��;:
'�INTRODUCED,'•REAd OM'FIRST READING AP ii
(�PROVED,ANq ORDERE6 PUBLISHED ONG�E IN
n`,FULL:OM FIRST'REqDING'Mis¢1h day ot May ;
� 2003:"end a puMic hean�g�or sedond`readlny af,"
thls�lcdinance aet fo�the 7,7,th day.of June 2003 „
�in the:Cou�cll Chambers�of:,thp,Vall MuNC�pa� �
ia8uikling Vail Colorado i �
Ludwlg Kurz Mayor r ,�N r , w,
ATTEST � � �
Publis�ha�,1 The�a�Deily'M�9 2003 N� �
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,�,Y„�,.��"'�
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i
' ' ' �601
PROOF OF PUBLICATION
STATE OF COLORADO �
SS.
COUNTY OF EAGLE
I,Steve Pope,do solemnly swear that I am the Publisher of The Vail Daily,that the same daily newspa-
per printed, in whole or in part and published in the County of Eagle, State of Colorado, and has a
general circulation therein;that said newspaper has been published continuously and uninterruptedly
in said County of Eagle for a period of more than fifty-two consecutive weeks next prior to the first
publication of the annexed legal notice or advertisement;that said newspaper has been admitted to the
United States mails as a periodical under the provisions of the Act of March 3, 1879, or any amend- '
ments thereof,and that said newspaper is a daily newspaper duly qualified for publishing legal notices
and advertisements within the meaning of the laws of the State of Colorado.
That the annexed Iegai notice or advertisement was pubiished in the regular and entire issue of every
number of said daily newspaper for the period of ........�....consecutive insertions;and that the first
publication of said notice was in the issue of said newspaper dated...... ..
Q " .... .. ......��
A.D.. ...��..��.,,,and that the last publication of said notice was in the issue of said newspaper
dated. . .. �1..1.�1�.A.D........c�..�.. ��1�/�.1............
In witness whereof I have hereunto set my hand this....,1.�.,day f.:.. '
.............. ....t..�-�C!J�
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WNES�A !he V[reVele.�ihemujor-ertnndmai ' �'+'A�`�'+cuonqotlhyPrdqappe J;Townan.3..tis:Pesy�1P it�W car�� ��?
P GliUrtu��sl�
� �o bfp ia!�� IoP ant:USirl t t� 36 F� 1. �.h�fl4R '�.: ... a '�. R�itwio( � I�n te i i . �. ,�
so P�so t,�iJ ih 'tluv I p �t ewe�dr�rJ �� r R' �In t lioing hq ght 10 p I Qn a �,F p ': '_ '�
� � A fui I�lprela�hd i nG(CSIabISY pl9q3ddRGe !e t t fA I[ ��.t�o 3$ F ir-S t C F 11 )t tae7 i„`m 9 In (.gvAl PU7 h I, p
tw nanGl�ai rynorc th��th Toxn o1 valI iJ '�' 49 bF��tU In U� �A�cyaQ t q a w�a€�p d_ct i r� ath ar tlo�Irqt�u edKrp��I:R a�! �
JlNEqFaS e i n ryr a req I etl by.�lie i f �C4 frrtt.a��f o x� {�o�A�P.t s P u i R iB9+r� �
� bulf M . .. *. �af r i .^+ast�1 edow�w iha dp�la� s�ie�� c�r�
�1 Fa:�psii Ca t yd Le�ry s r[I l�te p�rc �� ��'T 7)a�:� . m P Cust�a 0.'�� f.I(c thl'r n t n fa� u
� �KN NEAf !1 q V I T'w C tl �} 4 4 ,�7h n'�{um 3! W f i.n C" 9�, k.rt..Sp �t���� 4 I Q thr P ;qltU GY P t91
t tha Ga t�lrt st ot thu�.ppWC t eth;�ca�1y dn.g .U���'lan1,�G1E�r'ct ddn 3& F a;,ugcir �1 �; �� ° k tt�.eo1C,� N-rGY 7
� ytfaw�ti dop1 kh4 P p 9 d AF� .��9 p 4 p ;-s�� t� �'����aa�rtl ;��tt q�APQ+�M�t�4e e ap ih'fhut 1t 9 C w.�upP sFipl p�e(ve x1 s pmi ail �,N
�T 9rt Plan lo SPec I U4Y)4pmu it Y.�sin4�+4 a6' � �ni f la�. t e cc�d n Se or 4 pl�11s urdl rFP�G6t� ro adwn/ tl,1 a nag U su nknlF�p !f
,+r.`�'eiFSp 5asori . . 'r �e(d9 8!!G Sq� s r t��o-ave�a 1 p 59 R U�dlceU t tt a 7o�vn{o In���N nd o{P ol 1 Y S
� � �105N 7'HEREFOHC BE!T PRI3AINk���Y lHE .'"' 1 B'�`��2 Sq e�t fcet 6pf.rvt ffa le r�7 �`� tt-7a�� qi�� �-y q(! aSan�r,it5 sl if 4 ra,�id ',�
i0 ry QflUN�I�,Od'TH�'�C�wY�d QT'W�- COJ.v �L nd9ccpl�$" �� ,. ed f.l �h Eed�s.G YCI k�y Ft o B O(
QftAtX1,TR�tAT : .., �i7 g rrytUni ! �s aP44rag re9 �nt�.t SPe !€ �p iqr tq esu4�1 u M a lem�.; c ertih�aie ql '
� Secti n t. Pu puse nitha OrdlqRna.a� �"�IQF �, � D s,t ic�r�. 34 I o�gN ��� 4y ,: ;
i Tf�p i7q e ot Urd i �'e{ 9 e�lc�y cl?003 1���,r urt Sf I I:�as saf�Ih r 4h {�p a��y� '. :; �� ,�� t
�a adqpl a PS)p o d-OdW vP 6'lf FLY�{ J f a �U� �efi �I r f�V@nGU t y I 4 cP MI5 Q U f !S�.ihdt t e 3 W I PWr 61 f�u Rss pd p y�In ,`:�
ri G onvb�u7.mw,i n s�.t N a6 Fovr#w g s , e f39,saz��a a�q2�,;r�s.�s �ac�fe�c�t5 oc q i i rt� �
H s r1 d u e cribe f'p o��nate dnyvio(- t .�P kt�ig end 4v ding ._� .: ge� al a,4nov i th revisuUSa I�F ii t�aN c
� �Pnd,yrm.fa $F ai 0@tirylu�nant qlslrlq�Nn 96r'�� �q etl:i u hut o d�.>t ewP pa M n7�SPergk� Tathc S�dy Th��.� rc e,�ps'.'shall 1 e�cal�le e� ��
I i scccrda�a,V ih ttw prP IS s at'�'tlapi 12n ` u d nyl,;q�vfl Y[ it y�,ta p ,c Ga�,<.lop u in �F�propoee6 peak yen��tlnJ G�p len��Ih�
• 9A VaIITo Cod [hu deii�nq'. u d i t �.m r�bis� 'i N 3 1' S s Fl�coit nsl�� q�p it �i,.�io�ei ,f A�o;C.a 4 terlip �.j;
f 6PU�:�1 ),iwloprnecN Oa(icf No�.3�y W1 II r�.•,.'.r upl FIaFl t ec t i rtt �..��3 Ay„�ovoJ pu I 4 � rosPO f ilY��3�ncj 1 5 41i�B+71-=40 n t p k iti�
m� P»�iG A�cc T^�otlaUon<onp olstricf fnbfvnce i *ec{ion d ot{,Yjls o Ct ,�,-q$pqp F gyOQ p00 Thls�yi�w I t o ff qj�y ��
_ S4cli i:2:'�Qqoqllshm�n� P�O�u aa<<�.�!ce( 71,'spq s r3asi uq',21p apac9s�Pra�l�t �`fho�:GOet p`��On���acpFl.imprquei 9snfa con5jru '�}
Fi IIIUatl,; ', ' �s� In M1 i Nan a mf II V�y1:R aa �JaS{M d V no.�� . , .
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' PI nning�C mYni lo Rsp rt '�! @ p ua..�.S uth F nf v�g eor�q��(;.�d foFq, - �� � " � , :�'.
The pra�eU r f e�au�omti t tl�,�cr v��d-y�Ct a�q ,� Ingtl I qry o ��,st r�{�21l ck uG v it out 6'fiiQi P n d+ni pa e� i rau Ive appmval 1 r
„21 p lor r.r�tten f.�� �+n!„f�� 7nwn o!YN iV „e�rcyw e re�nl ts(CpU� a�cesp,�CO[ du�p�y'` ;�
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{���ri" i �r S r 's, � � � e�� c}G7�',_k��i{h'� �Jr'7 f �;;`�.*y,
i 1, � y� �:
The D'ail Cla�bif�+.t. )d4R.993t/vdild�ilY.r;: , ` ;, ` ' �`' ' Friday�',
ternp stornwal�r ds Iw g �a1 p i Ifixu �dl� ol tlia Pr�u speq�cally Iqclu In� pY �s '. ❑ M N B� NICpL �, ;,
anca.��pudd�ngpermlt AD ANp APPRC SECONp AEADINO�'�;drr,�uaqB and gr�de I�e•ins necessary bey4nd tha "'�.,4L1 �P�ESpTA ,.�.5 •d
� �+�,„ ' '�' ,�4 ORDENEO PU� �In tu�l ttJS 71h dpy o��';wesiern mpst praperly I pa of�he P�oparty),1n Wtl ;�pU �MENNEPIN,�'� {
17 Thal Ih¢develppy ehall s 6mR 6�yl�site grad ',Oclpker,2003 ��:; ° ' , ,�,,_-1rB a�l pielr�aga Ilgh4n�,ah;��irayWCUpe'enhanc�, ` + �� �'��: :�- R��
iny and S��nage q16n 1or revlew"a�d app�qvel�hy � {.udw�y Kujr t.taW�, mop�s,pU�lly.re+qcation odgc Irealm§n�s.�cvre artd,Thla H1s1 urndri�wns ucknqwlKdjeq n Iha �� :�1
'.Ihe�Tow� and fhe Ouslgn,Revlew Board.'The A,TTESY'��� . " �� .'�gulta�§f�dlendscapnp4g:(?equss4�y'qnd�tum,�tch,deyp!, ��2q0.4,Geloretr�uflno�arywl�hn�;o�d„
-dral�egeplanwiU���aeqtqbn.subSWn��p�ad6y;a ,�.orqloipu� idean,7o�vnGlerk � �� �.andba�coordina�adyrl�:jnufpal..appruveQTOwp"1u�sal�CoUtlryt�vThonaeJ�Brl�k.�heVlcaPreyl-.�
� 'd�ai�ay �pofl,P�w�d��itrf���G�luraEo�professio ��Exhi6ltA � ' �ofVa�lS�aetxepepI.vi(qnNluslMeeilow;4�iva �aentand�orlera(C9 +el I.NI. Ilptl4�endOtivpt..-
nal,�E qin r. Inr�uJa �II tlrpinaqe, [ool.dra�ns, i'�, �'`, ' �..TOWN OF VAI4 ^ ���� I� �".�.'ldi F��I�s{rlen WalkwpY NiC011al shalf�par�o m the ��.pn er�Cu.0 MIr o�a rnrG?ratl n,uil helialt o1'�
e� , land;vcape dre ns�e� an0 how.Ihey w ii conr,nct " MEMORAN�Uld�OF UN��PSTANOWG � .loflowiqy I:P�4`�emoms e[ong Ihe wU6tem pmGqrly -�he GqrpareNon,���.
wlll�Iha TOV slorici sysl5m.;19�e qewlope�.Shall This Mer�iO�anqur�l oi Underytantlintl:ls m d nq�"�Ino ol Iha P opgrly Irom�he�Soyih F�pnfage Road No�qly P���i� �
suhm�l all i pal d�i1 p�wis nd 11r��d ilag rap9rl �°artared.INO on p�e i6th tlay o(SGptembor:o03 Uy ;Io Wesl�Ideed w t]I q,usinq naW end.11ret dass ' �`� ' � "
' lo Ihe T4�vn lor clvll�.aFp oval ny me p� t nnnl ol end �.�'6olwe�n ��NIW LLET � ISLA�{0����:m�r�als,us appr�ed R}'%he Tuwn ol Jaif an t ihq STATE Oh Cpt OH/+I)O 1 � (�
, PuLllc Wc ks pnor,ty y hm�tl�l ul u G�.pd��g pan pEVELOPMENT ^� '::. ��T wn p�Unif f�sen RenSV(� d And In�.a�cor{1- qe�ACKNOWLECIGMENYB�'70VJN 4FVA�l "� ':��+
� ' rtilt ! ,,; , ,; qO.�a:Mlrn ta o�po N and Ihe TOWN OF ; e 1yll� ell: pplce4te 1 dar I st le'and la.al �� �> , y {{
�� �• ��'! ' ,`� � "�. yAIL�a:Mu I p I nor�� ylw�ed In�I ��un- :d y 61aNtoa, U'lo�cae.and c7�l5tlons;(Q�� C�IINN OF FA6LE ' . ij
1, '1d Tha�Iho dovaloper ehel�provlde tleteilod cWil _ty f Eepla St te o(G,ol,qratlo �:� '�siqn end Inslall en a�taLlieq h tytl�.p�tl slnen On the dey pf 2009�.o I r nn:q notary:';
f '�.plens,proliles,5letnils lin)i�s o1�ds�ulPanca���enA WfiEREAS Ncollet'.Iwland Develqpman! Co �e ��aldawulWwalkuVOy ulonp�he�� c� ���pr�pEAy Lna .��uplc Wllhln aiid�� euld Coyjlty p�s naily. p,!;�
- consiryd4on lence for revldvy and Chl�+pGEOVaI,try p ennir+.g tt e d vnlopmBa��nd.cons�rn'liui ol a 'ol Ihe ?�operty f Gm ltfa�,So p frqntaQe HoeA peared�, (Fl��personully Nnown un�by�io��
U7a''�,pupurRmentqYP pla Wp�ks prlor W supn�lltal mF�d usn p �cl'conr,lzllnfl Pdn»�Ily �a ii Wr y,ROUth to`�NJest M d pr"vv I I A 8;u.fllg11 iy 'd!YSwom,iha '; . oLlha T n qt:Vnll,a,'
i � ol a�ulld�ng pnrmi[; _iha.al,���rnc�Inna���ea piub,oopdominlums,fe(nll„�-.re�airi�ny'Wails r I gn�:U¢.tl�y ralocel�on�dralneye un cipal ly named In Ne 14�q9o1 y�iis�rum��t'�antl,'��
' ��nnip�oyaa.hous n�uN!S�.anU�related lacilil es at 28 ;�,and�an�sr.aping as necessary ihal Iho seul��elflxed.In�eaid�lnsjr meN wus.eignaJ)Y
19..Thnl the devalcpc�i she11 be'responsole for.�ell �.;S�ulh Frunlu9a Road gnd 13 Vail qoad,Va I Colq- ;(e)Spru�ldle��'feak Nlcplla�shall puAOrm�the tol- �and Sdale�'oo bohelf ol baltl�.m�nl ipapty.U�y��u�i���y
„,`��work reln�ed lo prowdny landscap'ny�and.11yhtiny ,:ratlo(LC15 BA antl'SGi�Val�VIIiagn 2nd F'ihng)cur-, ;'�;'Ior+InU,lmprqvomonts In'�un��acLOn wun;Sp�addle ��.(hor�y�t its:acRncwledg�d.sn�d I Iru�nenl lY�pr9
ts .Wllhln Iha proposod�FmNe�a Rd:.m�dlans A��da� rently nnd epmmonly�knq++n na ttia�Qhn�agu at Vall -,�ryek �sing,naW endJire!cl�ss malerials,es ap ihq.heE�act nnd dgaA ol sald mol�lcipal�ty
� �-�Id�led la�tl�cape pig�oi�hd rt'@dlans yhal�6a pro•, h[,iel and�.lhn Alpin�Slandarr�/qmqco g,�snl�a sly- PoYSa 4y�.�tha�ayn of Uull�r��d�he TqN��dt Veil ' ;��� '^ -'�� ����..�q
�, vldud�o!{ov bw md appraval by.0 o peq gn Elg ``ipn '� '-; ;�� i :Qesign Revlew Board and In accordanca:w�h e�(- Puphsh�d�n�he Yel��slly Oatobryr 1p 21A73 ;,
`-;Vlsw 6oard. �•:; , �� '��,. hWHEREA�`!n c nnection K��h ils.propp d qi��d `appli�a6le loqer� st te and]o al levys,a�atutes,..�,.._ ���
� ' usa tlovelopma t NIcA�lat Isle tl pevetopme t CQ 9o�dinepcea'�iid e�ula4oas�;(i)Ioloe�te IhS�Sp�ad,
20,Tha�lh@ developer shall pro�tle rfad tloi�I sui- In reyuesling irum�the�To I lell<ert I enW o� �dia creak pipmg end Iryinu�iaw box pilYV ts es�?�
� � vey ln�o�m@t�o�of�{he seyth eida�o�t�ie Ronldge manls.�purauan� �o Its�ppli ellpns�fo a al�r ,n cegsary -. �..�� .� ., J
(iaeQ Iq�iow pxlsUqB beas Rp he t5�noyed and ad- amendmant 10 Spaql�l.'D elp�mant�6is1 icl tlp,;- � IV FJ,SCMENT3
diUOnel aUrvay in�ImM qf thp Scaryi building In pr• 96,a�mnd Ilopal use ppr It lor'Iype III Em�I y d,:4 MCp�let shall be�esp0�sl,ple e1 Ils soia�os1 un�i�
� ; dorlo sl�ow.dccuratn yrnUPa to•the r,pnsUUCtloriof .Hcusin9 Units a qun5l�ppnul uae parmit�or a F��c- 1'�xpense,-tq�pr�para and-su6rt�q all_appllcable�
�I�o.palh Irom Ihe�o Sea�ons to�hn bus stop�:at ,.ryonai Fa Club a�d g rezoning p(4.oj�9q Va��VI• :'roadwny �raMage,anq pe�BSirlen pasemenls Wr'
p ' Waet Slar 6anK F'„inl Jaa gn shall pe rovleweq 15g �2'd Fihrg �•:'� ' �,� �� ��dedl�allon In CpnnectlOn wlih�he Pro�act o�11 e IIn:
_ ' ' 8nd apprqva0 Qy Ihe Town Sntl Uie Ons gn Hg�nyw WHEH�A6 In com7pcliqn ylith Ne��eppll a�lons ''p�9'�menls{q�he Town 4�:Vall lor fevlery-pnd ap',i
Bqafd ,. '� , � : q,nd reque$Ied antqa�nenls NiGO'ie{I;land Oeypl• �.provyl by Iha Town o�Vull;.Town Aucrnyy xn�i oll�
��� � "�� . '%: .� ' '� �Qpmant'.Ga Is rayulred by�e Tpivn of Vell Ip ��, Fh�asam¢nts shell�e-flled and reco�tleU w�h�
2L Thal�the dew�oper i;iQspor,sible�or 100°m of �make Gertein ofl�elteipuqllC�mpmae�nonw(as spe ��;4he Eegla Counly GBrk enil R�rnrdarn QUlcv PdorM1 �
IinBl�da5i8��(mproyeman{s.elaig:W6st MyVdow ci�ca��y syt fo��h in doteU h�low�alony So 11 Front :'lo If7e I�suan�a of a Ta+nFnrery Ceru��ca(e,yf pccu�,s.
Dnye.frrnn Ihe�.cantadina q�lt?e.faetl becklo�lhu � ge Roactand Waet Meaqow Oflve�con;ls�nt wiJi '�,'pancy�otthePropefty� �
�� FourSeasons��property Ilie Irom�Mayors park lo tha'Tavn o� Va�'Slreeiscape µay�or Plnn, as •�:� VTOWNOFVA0.°$�OtlLIGA710N6� ;
p � esiern mwt.prnperti I�ne ol lhe Faur Seasons, amended; '� , + ,;:. �S�Once�ha;Imp�ovem4NS��have p�un.�ompinled���
��Includiny any.drainaga and-grstla U9 ms peyon�l .VJHEFEAS as a condiUo��0 14ie second��eading .�.Gy Ncollet.end accepi�d.hy Ne Town�.�.ol�Vai Ihe?..
'�he wa6l qropa�ry.line Thw Inclutlea all Impfo�re ol Oidinen�a No 9 Series o�2003'Iha pp Ilas artl '��;Town ol Vyil���:chnll 6e rye{wtinlpie Inr all m irt-�.e
r �ments, InGudln9,�;�ralnage, Iiphtin0 ert.�.streut reqyired to ent�r nlo.�lhls Memorantlur� I Under- ,�,ne�ce upkeep xalannp;.�mowlny Mmming woed?.
�.cape'Bnha�cem,enw, edBe-.-.Ir�almen�s ;cur66 staiiding�s��nfl fc,rVi,::(hg�espo�si6ili�les�ablea- �con�roi,snow remnval dehi� r�mwdl;��epqlr and�, �
,'heated walks e1c:�,E�nal plens�shall��elch�and 4e tlons�anC eq I ernente ot iha p9nias.in cpnnecuon f,replapam�n�:of any and ell lmP�ovemnnte�ocgted;
',:G�rAinetqd wlthlhe proppsed Town ol VaqSlfeol wlth�.said ult�iia�pWiio�imp m�dmenis Lp 6a per 'In a pub�lo�rlgh�o�way ocin 4 pu��lc'eagamonl In '
scape pldn Iqf W08�Ir1BdCAW DfIV@ end ahell,te �formed 6y Nicoile�'Inl��d D lopment Co, :�cluding,u�Y�:.nd all cosl,s�d axpon,os u�soclaied-i
proWdad tor�avlaw.�nd Rpp�ovaf hy�he Oosign NOVJ,THCREFORE,�1�0 deraUon ai 1h mutu- ;��4iroUly or Indlrec�y�thRrowlih(exCapl thn�Ta.vi�uf�
p Reuiew�oard� al covenanl ho iafte� 1 brih,�he Pprl s hwre."`.V�II shell h$ve no.obliqatlnn lo hepl or'.rapal�ii5 ..
�� :. ', � �'. � ,� �" =�� lo egree e f Ilows. -�-: ,'.h al lor Ihe:s d W Ik).,��H F Ilat shall�Y i�o
; 22�,Th I tHe dqvuloGe�4halllncorporet publ�c ert ' . ��, , 1 OFFINITION9 -� �co tnuing or�rih r blgajions or respon�lhil�tlos�'�_
� °�1nlo the�1 lopment and;h�il Goorol la elt:art i. ,i .When ueed In thla Mema�andum o� �-,Inconnecuoq9h6rewnh. . � �
.raposp�s Wllh`he Afl In P�lbl�c Ple B N ub Understqndtng I�e Iqllpwin��erms e�nll have ihe ���'VI FINANCIAL GUARANTEF REOUIRLIAENT$�;;
�' j �Pect lo ray16N dnd�dPP�A�a�hy ing pes�gn f7a�lpw I II,vir�g.n a�Inys�.iinlnss att orwlse apacllieslly �;Fj Nicollel shall pro�ida a(?d yost wl�h t��a To ol"-.
n
� a. . Boerd, d�Inad';7he sny�lar�'shall Include�Uia plural and '.Vall a Bond�in�ila lotal'sinounl ot O�i�Hu drad;.
t�w naecWire gender ghall include�ihe t minne:Fil�y Pe�conC.(750m)p�1ha lotai cosl�ol.iha Im�:
� -23�Th 1 Ihe qevelqp sh 11 fe5alv II f IYe loi pnd It e.�euler unle_e�ott�erWlse�eqi rad bY lhe'�proverrienls�(SS mutuelly detarrtilned gnd eg�tl lo.'� .
, lowing tl Iqmrale�ed ISSUes lor hnal peslgn P.4 aoniexi r.:. ;. ..�. �:�.py end�aRyeen Nicollet,�nd Ihe Town at Ve q la..
,vl�w doard fwlaw�nd approYd�� �� Irl�P�ovemnr fs" shatl�.mee� thosn:oft s tu(Public -provitle�1neDClal securify to 1h To�Nn ol Vall and to'.
� � ' ��', ImProvemoi ts as speciil ally del�netl�in S c��Gn 11� :assure Ihe comple(�on of U�a�mp@vemyrft9 by N e,�,
� a P�pposed hytlrant relocpllon at tl NW cor�e(��ol Galow ��� . �:; ,.': :'ollet Tha Band s�ell ha pt�videtl and pc51 d w tii 5
Ihe.p oper(y shall�pa g�udad lo.G I v I wllh Ih� 'MOII'Shall m�a�ihis Memorandum o�U�de�- '(he TvN�oYVell prlor W�ho ssyance o�a 6ullalny�
'proposad sidnwalk'anq Is{�dscaping wiil L��oculed {tandinq�ay�a9ment and e��erhiblls dnnexed horo :.par��il for�Ije Pr�eGR �'�� ��� �
',.as to no6lntddera:with iha opulaiion 11he hydreiiL to..,.- �.� � �..VII.ry11$G LLANEOUS PHOVISIONS .
,�,�,p,.The -ross-slope on Ihe��.W.-+el M�adow��priva ,'NlcolleC�shall moanNicollal�sland`pevalopmenl �.71 Amgp�7yyg This�:.f•�QU and all�documm��s d
iZ, �welk shull mafNa�.n�e maz,2 0%c�usa siopg fhaC,is po,�a;M r nesoie cprpqratlqn,�,.whoso ad� �s is.;,and instrunie��s execu15�4'i c nnactl n�I e�ar+ilh r'
�sloped towe�da tha road.. `- 6(�Fosfiay 1 r,821.6larqu�ito Ave,oa South r. tay Go emdnAeA mod feq o upplan��ent tl only i
G:Thy Goulder�wells entl grad�ng�n�the S�corner M nneaNOl s,�,1 ineiala'r54q2 Attenllnn.Thqr��s :by a wrluen.in Irument,�� ucutad 6y.�11��arty;
e
t � -� ;n , �-agulnst whioh nlorcamonl if ereof may'6o sou�t 1 ��
of jho properry shall be(oW�fed ea to not 1mRp�1;J 6r nk �. �
,�Iba extstln 2 38'�CMP`a„� �-�, � Peqies'�shall mean'polh Nicollat e��d Toen ot '7 2 Q.�mu"�Ellect Thlq�MOU shail tia��t id p� '
,Q.The}oundelion wall el lh�SE co�ner ol Ihe park• yall •. �'� ' ��•� -.upon and shu�7 Inure(o iho panefil of.�lho ppit s ��
Inp�s�r Iwu shflll be mW��idd t�accom�nRdate Il�b ' P�o)ecl'�,-Shell meap the rtP ad use��pro�9c�beln9 �:and I1161r ras�tecliVe succvsyo s end assigns l l a �'
qxislinB SPraddla.Craek�aWt : '.�. 6lanned�by Nic Ile��and conslsclf 9.Armar ly ol a �c�ligellons��ass.�matl and�ay ed lo l�erPo furn d `.
9:The propose[1 Sprnddla Creek vaul� r q qGn� �rva sle{:�i l e Iraction I I e lub,cnntl lums,,'-by aech p¢fty he euntle�.wUl ruspec�to Iho Pr(
' crete poz culyaFt ehell hq�npd hed to ryork w�lh�ha'�ret611;.�mpl�ry p Ym�rin�u Is and.ralated t Idles � rty shall 4a b ndlr g�p i i�e ch pqrly antl,II pl ro '
�"axlslinpphq(7evaull �` . ::, " ' td ba��«�ed at�lhe� per{y,Whfc�n x d i -S�e�lve sucw ssigns unU 4a�islereas Tlie-�
'�I,-All known�axisting�tllllie6 ahall'6a nhown on a%..pr4id��is Iro suhl�G�of Orduianca Nos B and 10,�.:covenen�9 C�:'Yio Puruay.�c��nluil�e�,horal� rq li �
plan wlth Ihe,-proposad drdlnAye dnd uIIIl1 ei�n or $erles 20o3 :'; ,!(endatl by��B parlle5 Io��,Ue covaAunts���whlcl'i run�:
dur t4 cler�y Golential cpnplcis :: - �� � Property'shall nwan Ihose pmpnrtles commonly �.wnt�Ihe Iand Und�r&ppllCdtla�aw Nlcvllel agreea's
t g:l'tie proposad welk�ha1�neals Ule hontaga road 'Wt�wn�as Ihe Alpina StandarA/Am�:p Basollne eta- 'tp meke eny trens(er ol eny Inlervst�n Ifie Properry 1i
walk,l�h¢gastam:ppAipn ol,lhe p operty 6ha11 be Ilqn end�thq Clid�ery4 flf Vell hptel,�:bcalgd respoc ;suGSe:.�to Iha o61 gaLo�y cynlainyd In IhIS.MOU
l aelipnrd elighUy�o Iha w@sl�o dv id Ihe ezisting pvely at'.�.28 Suuln.'Fto�ap (ioatl���d t;f Va i!7 3�yJ�g���vy,7�iIS�.��10U shall LS.cp t ued':
INef:-�, �'� °. : �:� ,flood Vail Colorado-Lo�s 9q and BC�Ve�Vlliaye,-a�i enlorcatl In accordenca w Ih N�luws �Ihe�'.
�' h�.Firn fi�nding}urnlnp mQvgmenla shell 6e chow 2'F Iing',:_ `�;'� � �:�, �S�ule ul Coloredo � ; ��..
� on plens ��� ��� ' -rfnwtl ol,Veil �hall mean 117a T�wn of Ja I inu- .7 4 TIR}Lg��9�GP.Tlm�is o1111�.desence�nl if�is ��
!L I�qg�p��ing w6115 wael o�fhe IoQtl ng a�d delfvery 61G pal cotp rallon v/hose adtlra5s�le 75 Sou�t� ���Mnll In thp-oyeM!ha proyislona ot Ihln MpU �
ecce;s drlve¢heil��G9�uI`�Nenglad In p�ppr��.lo ��m�tagpAoad,VallGoloredoB18S7.At�ent(oo' � �qN�a uny:�,r�t tp b0 dar,q.�r ecllon Iq�.hq leken ;
�'banch a�essdriveweil, �� � `+ II:pUPPO$E �` `hareunder�on a dale wNch`R a SflWrdpy,-5 ntley �
Top of wall leva6on fqr Ihp Frontaye Rd Wa4l 2 The eRpress p rpose ot�h s M��1 I9 t ns�ablish ��or IeBa� hoqday suc� ect or ac�ion��sh II Le 9
� �aaaow Orlve Ih feada as 105.57(Typo1 ^ '�,- thq inutual r spo isiUllitlns ohl yallqns apd eywra- �.peemad to:hu�e baon valltlf d na or leken�I d na ��
e
� po f
, • k.�RaWneS shul�Ce.prqvWed br pn�hs wfiere nec menis'ut me Furnne hereio r�{prdiny 4 e�m�r ve-�,�.or aake ue�tt�a nart suaee,i�g day wntch ls not a ,,
@sery ^ .� � :--�� � rpentr.to�6e pedorm tl 6y N�ocllel�in wnnacimn ;S Nrday 6yf+d1*yorleyaiho,�dey ' '� �S
� I.Shovr edgd of�exlafing�RU�em�N I F�nnlupe Vli�h NiGO�I�I o lill men(s antl ProJacl,T�asa Im- '�7 6�eqqRqq,tapS�Thl¢Agreemoqt may ba e c4� 'N
, mpd'at crvll plans and ehav malch pulnt provemeNs ure requ red b pq maJe by N G��lel'�ed m counturpaf�e ach�ol whlc�ghall constn ta a.�j
t � , m.EroS�An coMrpl plan�hall pa:pd{ad ;�� p�seU:upqn�hn denign epd'fundionell'y ol Iha 'sr+parate dc�ument�ut ell��ol wlilch�o9dm f sh II:
,� q.�Show gredinq&ruund pmposey elntlrlc vaUlt S .�pro�ecLUr as specillpaIIy requlred tiµiha Tqwn ol 'cqneUwla one and iha eame aB��maN�.Sl�nai�e;
� q.ShoW d���away�9re�uy spot nleva�ons on 4���1 �Va�l�n Wnn9ct�on wllh Nicollel s anli�lemenli ; , .anA�ec�cnqwladgmenl papes�ay be de�zche{1 and-
plsns �. � � �.��IU NICOLLETS pBLIGA710N5 ' eal�achec�W Ptlysicyll•lorrP one Ua;umanl ;
p..$haw aUdltiopul�TpWlBOW ule�eli s an po I 3 N callel 5hall be Yespopslble at�ilv sole casl and ''7 B�rnuvg_}�S� f�iu9el actmn�s cqmrq c<�d.� ,
Wal�6 , , „g�HSrse,;rG��. 4P��� Ily p�oyidetl har�ln,{q ��.In conneclb�wlth(ha @nlqrcpr�4nl Inletproletl ;
-' � .` �t '' 'co(nPlo��,and perjor�i,�ia lQllpwlng,(¢ollnc�ivolY. 'Pr brqaVh�oi.a y yro�=lon.nl th s MOU,�ii e('wt.:
24.�Tha1 ihb tleveiopyr�shall bagin iniqal cpnetriic 'the 9mpmve�.nt�rts")In.conneFUon wiit��he Pm�ect: :ae par[ofiis)udgmenf shall a,vertl ruusvnabl m �
�on ol iha Fo4r Ssasons Rdparl W�min tl raa yoars (a)S�uth Frunla9e Aoed Nmollot chull pedorm 1he "torneys'lees end cosls to 1he prevalling parry
q� Iropi the ume;ol Its 1 nd(appmuabat eacond raqd loliqwin8�.impmvem@nls along�,he Swtf FroNaga ,�7 71�Ya1 S..9fIfl10.PI.qelslaa7.�"s�Y-p�oviston>
�, Inp ql�he prylnericn pmenNnq-9pectal'qsveloµ �Hoed;.�using aw en�.fint qpeF inatBrinls as np ��ot IhiS MO.,.ic Int iJq�1 ro.6a spYe�l.�ln ir� van�'
�� menl Olslrict No.36 Fq�,�6ea§ons Re&art'and p vad�6y Ihe T w�ol Vetl a�d the T 1 Vail,��"e�4y le�*+oq prov I h Narocf Is dodared to be 711•,ti
f ' continue dil�genuy:lowa{d ve�con�leuon o��Ihe !�@s gn�R �w 6oard,and In eccurdan a wlth all ,pal oi uwelld�f r any raeson wha�soever,Dy ou«
proJnc� II th9��devzlopeF doas'npt baplq dnd�dili qpp!¢aUle fadaral,stala anQ Iocyi lai4c siaW�es, ��.o�competenl Junsd ctiop cuch Iliepallty pr,nvepa ry „
�9enryy work loward tna coinptetlqn Gf lhe 6peclai ardmaoces and ragu�utrons,(i)'wWen Ite c�wh :shall no�u(tecl�ha 6plance�of Ihu larmc und pr
�'` �qeYdlOpmenl d!striki o�any stage.A�tI�special d5-;'6ide of South Ronl�ga,ROad antlYpslall a le�t�U�n ��,slon5 heraol,which tarms enU provlslono�shalt ra
�'� ' Velqpmanl dl4��cC.witp4�Ine ltme Ilm'IS Imposed, lanein Soulry Fronlege Road lo iha enlranca of�ha `meln buniiqg�enU anlorcegtAe ���
w�^ Ne�appmval ol��saitl cpeclal dawlopmarlt:dlslrict hotal and a wrtespondiq9 Ibfl tum�lana lo tha em �';7 B Ep�E_¢OtsEm4q1...Thla MOII end'��ha JoCU ��� .
cpgll ba wld.;7he Plapning antl Eavirqnniental �trenca ot.Qie a�ciatlnp Town Gf Va�l�Pql{ce Statlon';n�9��ts ruferenced he�9�h..sa1 lotlh aP �ne covq-,j
Commisawn end.Twvn Councll:abatl revlew�Iha'1il}.Instxl�,medians;Ip South,.Fiontagd RoaJ�rom;nants.promises,egraqrpanls coFltlluons'.a�d pn tr;`
� �..�p�ciai�eveiopmenl tlwtncl�upon eubmltWl�ol�un Iha.R�elq roundabouj:to.lhe Wesfem lot Inn of Ihe,;daislandlnqs.among�iha�Par4ey concernin,� Iha��.�
a�plica�mn�p raesteW�sh lFe spacial devylapment �Scorpm�-Condominlum properry; (ili)�,provide all'�;aubfect mqttef hereo(a{id theie ata no�cavunun� ;f.
� tl�sldcl loltpxlnq ihe pioGadu�es QuUlned�n 54ction landecaping end Ilghling wUhin ttie ��, � prpmises apruamg�ns,cond Ilo�s or unde�eland
� tY @A 4 V�I�Tawn.Cqr�B '^_� ;, l. , �t�WesC;MNedow Drivq.Nlcqlle�shall�pedorm ihe ��;ings,el�her;prel oi wdNan beiWe4o�itiom olhe ,!
� ` . olqwtnQ�Improvarry,entF�proRqeeJ Soylh Fonlape ��Ihan as erd,hareln eot:tprth.All negoUuli n5 und��
25(Tha��he bevelope�eha���cpordlnala wlih the floed�nedlan to be Gpnal�ud�d by Nlppll t(iv)Im;;oral aB�@9m6nte awep�a6la lo yqlp per119s tla�'e.'
7orin lu pruvide�.o bus atop at(ha pedaxtrlan s�de- s��l ao�apached healqd pd'+er�cidaivalkh�elkway;4een merg9Q�nlo apd�urp Indudqd hereln R bning 3 '
wbJk coMecUOn�lo Weet Mead�w�dve .This de;� 16 fo 8 feal wldy)�aajdcent W Ih9.Souih Frontage `und�rstood that�hibldpU s p reeQe§end canoula^.
slg�ehell 6e suhiNUaQ to Ihe Tqwn 41 Yfl�l16r fa- Road�irom Iha hu5 slap adJacant�lo:iha Nlests{ar'.any end all:�p�evlous nagotiel on6'orcsnqamenta"
vieW,ond eppruval try tfie Town pnd�he Uenlp� Bnnk aesl alon8�§S�o�plo CondomlPlum proper'�Untlerslandlq{�y and represanla4ane dnd nona?p
PaYIeW 9oard prror t4 6pDmitta�QI e pwldl�g par�.,.iy pnd the Proparfy'Fo�Va I Road inPlutling pll liqhF"�ureo�ap�ll�pe uaeq tq lnlerpre�et conr.true Ihle p.
� , Rill�� � � '� .= , �ny felalNnp weUs raNngs 4uhty�a(ocetlon,purh )MqU �� ��: �' 1�
" " ' ' ' pnU�uVer.preinege p�id Iend50ap n�;e6��ossa•-,7 P Hptl4C6,����no4cas,�cqNflcalba o�ot�e�com,
r 2b,Th t Iha 0 Jelopec shpll coi mlt na ect:ot�'.ry;:(v'�reiqcate Ihe 1 re�hyd�anl 6d�eGeM to Sou(h;'Munlwtiona ieyulred lo ba gIven lo the Tuwn o4-�
�oir�ieslon!n any�way lo ca�se Ihe��pu e 1 operation Frontage�Rp9y,.and��(vl�p&vafnani�-p�erley Irom ',Vall of N rqllat hernunder�ehail Gti-yutf.iontly giyenj
�,ql�he Chateau a�yall Iq cegsa untd such Ilme ax u, tha ca�terline ol Squ1h F�ofWp Rqei,�(u the piop�'�;antl ahell be deer�nd givan Whn.tlalivp ed or';
�demoluan permi��ia lssuetl Gy Ihb DayuFManc:oi e�ry Ilne'�f�he Prpp��ry Irort}Ihe�mqln roundabout",wlan depos��nd In ihe,UNlod Sleles mail lirslf,
GGmmum�y Qbvalq,pment `-�;;r asllo�the�us.slop'ad�ecanl lo the.'Wqelet@r Bank�"�laes,with poetege ful�p prapaid&nd atlJ�essaa na;
� ` (sub�ar.t to hmmp and,4nortilneilon ql�he C�OT ':�(olloWs: '
Sectlan 9. Efl�cUya�pta oflfw Ordln�ncq ': over�ay prqecl I�at wlll be at GDOT e§ula cosl dn4 ; q m�htl 7�.vry o�Ya�l
. .4fdlnanco No 9,�SeneS f 20P3,shell W-ke nNeut`axpanse!.� '. � ` ��.ToWRO1V�,�', . ° �� , " �� �
or�February 1,2G04 �� . 16)Vall{�aad N�cpllet'�shell P Aorrn��:the f II Ing'��.� --' � ' ;
9�tlon Z �.�. �� : .� r^,"�`ImPfa'�n9nis elonp lhp Va I Fioad wing naw gnd���75 Soutp Fryn�ge BoaCaVatl('ol9�ddo d1d47 ,
,If�eny paM eec�ori,aubaeotlo��sqntence deusa'ilrst dayy maianula,ns appmwd by�iha Tavn o�'� P � ' � �. �'
' orphresp ol t�ls ofQinence Is�or.pny reeson held`Vall:aqq jha Town:pl Va I peele���Fla Iaw B ard;1�W Wcolla7�l""- " � �i
lo be InYal�d,5uoh deplswn s}ta14�11Pt aryaCl ihb�yal- entl 7q�rAORIa ic4 with sIiepp IIca6�e.ibde al state��, Nlcailat Islend �nwlopment Cp.Glo Thum4a J :
� �kLy ol{hd!@malnlr�portbns of thf:7 ora�nence� ,and IaOd laws slalulea ordlnences.end regula ' BMk 600�FOShey 7owar'�621 Marq4Vtle A�d ua,j
�, nd iha Town�CounCll Iwreby�.d9cleres�It would��uonc (1� Install un'�altachaq �fiealed f§��'�So4lh M nnaepqlis,M qrres914 554p2 ., �. .�
ha�a pessadlhin o�AinencW anG ea h par�:sqc� sidewalk(v�Ikway(6.�0 8 lael wide)ad�ecant to'�: '� � �
� Ilon;su6secllon,anqlence plsuqq o�phra591here• 4a11 Rtiqd��Om Ihe:South FmntaBe��Ao�d south: 7 7Q[�p�j�P3[;y�RCt911�1HfY.,Tf��B MDU and,,�
. ot;;.ragartllaes pl�tha�a�lhal any n or mora� along ifie'Propatry ro 9 Val1 poed prqperry Inciutl-' e y fi a ci�l 9u aNees requ red Dursuenf lo Ils`
,�� ` 'pe�ts ee uane,aud5 GM1Oas,Sen�ceb c ausea�pr i�s all 119%tinp rala nln9�waIW1 rq�lmgs;�uliiM1y relocfl�;;)e ms e e n,pl mtenda�(or Ihe t�qnafll oLp y It�N��
� pl�resas b�daclare�yrya110 ,:�y � �,.: U n,cur4¢tl gu�1 r;�dr na o and�andw�F 9 ab, pafry. '� . �"� . .: :�.
� SacUon e.. „ . , .:. r aaary l il ei ie m �readla�cr k N pi�g., 7 i i lnd rnWtu�a�an N�can� q aes io i a nuy ;
.The�rnpeql or lhe�qa el and rd�4np ln ent ol pny t a�d n�tall npw box�cul e�ts,and(W�pavamenl: pnd h I���h�Town R ��II ha�Idsu ugalna!uny 1
Prpv�a�o�c ol thy�I�I.�uhir.ipa�Code as pra�U� o rfay Irom�h �erlln9 Of Vail-p uU t �hu nd ail 11e611ity t s �pmag cos� x d e pu �i
�Ihl:orQipan4e al�all nat H�Wd,nny r ehL.whl h, pmporty�qI I the P,ropurty f�am!�e n al id-� Inc�uiling rees iabla att y s�as;.wh Gh Ih ,�
+ hQS,accrVdtl any tlury Imposed,'a�ry violatlpn I���i nbout(SUUth Frontage Ftoaa)6owh tq ih p p��y„7orvn at Yuii�!�aY herpytiar u u1n,Incv?p by
� occi rretl prlor lo�.ths aflacliv@ tlete hn�w�,.a(ry Ilne ol 9:Vai1 Foetl.alunpWp�t MeqqoW D va U ; yw atl�q�pay by eaepn ol aty nuyllge n o 1 G���
� .proti Hon comme 4etl nor'any o�her ec�lon�.o !g ew�end Ilnt dase matddals,ag�Bppro ed 6y;; oinls Ion pr.Inlentlpne�eG�o�Nirq�lel�:�.its ag ls �.
.P�qc edinP es�aimm rwatl:under or 6y vlrtue pf thB T w�p�V II�nd��lhe Tqpm q(VaIC G I� N -, oltic s �nPloy� ep,r �o s, qr sybc n�
� lha�p Isun�apealad repnWaU anJ roenactud'^ i w Boa�d �d 1 cc i�leneg wth:q�l (Plicehlp�. �ore wl ich�,18 I cu ed 1�.'c n cho�wIh r Is ��
9' Thd. �9�PI 9ny,.p qVl81o�f btaUy Bf161 Fl01 rWiW B i -qt .y'.. d cAx. 8 1 n, h 1 o vqf Ail9 ny o4� f!I ,.001 61 L j
�' p�y�p �slonpranyqdnan�,eprnuously�epp�ipd� d raqiiiql n (]����4��e�}enuchod h t d pn-'�t tta`.in t Ila�on p�Ih 1 proven� i
. or¢up aQed ufl�g�pe exp�euly y�l�q hbraln a� ,,,,�1 •_ !',, : �� Nleoll t I [�ulr@d t�perf�e n undar Ihe;tyr S I�' _
� $actl a6 �: , .:� ` �� ' � � . ,,, '� uisMOU :�. ,� 4
il'�,' Atl�py ew5 rdere; a iu4ors antl urd¢ances;,oc s{17walk/wa�k�/ay(8�o-iq tAat witle pf as reqwretl' !12 Ie p�p'p(t4o,So Wng.es t�Er Town�o(V J p
part;tharan�inconbfg�a t q pwl�t ara h�reoy�ra b/iha.hn I pproved�To�yn ol Vall.@I r pe„ p w�tor{h�Spacla�Dese�pm��it Dis(fic�N 3G�'
�.pealed to ihe aXlenl oNy al'euch�nconalstoncy y(fastnr�.P„Ian(or West.MeadOW Orl,��edJ ca�t lo; our Seesp�e ResoA rqinn s valiU end has� !'c
71��e�epaalershaU �6e nstfued m� Isn�a y W st Mead Ddve�lra thQ wes47tA mast side ol�,term'ra14d by pa;gupu gl�mn�qr ovie�risa �hls'��.
� � 6ylew ordor,rosWVUon o a�A nan U,or paf<<�iere M y m'-Pa h was�@�Vnp tl�w 8 Ve16Raad p�opatry'�� MOU may nol b�terminala�l m Whala p �n p ���
,P�l�he nio�orelopeaied. -� �` �0 U e P�o{ rry to.tBe w siq p ino3t properry Ilne: wthout th�m�t al (4t�n� ne9pt af�tio N itiee�
' INTPODUCEO,READ ON FIRST NEADING,AP of ihe IproGerry Inclu f ng ull ligr�ng retalning; he e� :-. ; '. a .
, -PROVED,ANO OR�EFEO RUBLISHE�ONCEJK„ walls,.r�lllogs upliry'relocatiun cli. gqd 84�1oq;, a6ove •�- ^� •.: ;
' �FULL ON FIR5T�R�Ap(NG lhl¢ath dey.of�Iday,k'd a nagp"and lands�p��p 8S nec�g6�ry end,ltl�, WH€RERqj�E,U�a Par�ios hereto ha�a��a uculed��
; 2003 and a pub�ic I�anting fo�saco d r�ading�qf malch.and ha oo9rdina�ed vJi(h Ihg flnal upNra�ed� Inis I+IOU e�ql lh dute I isl sut forli� �
, ihls�Ortl nanco a9� lor the 7Vj'-d y t Oaoher Town pF.Vail S«eatsc@po pign for:�"(y�l MaaAOw�'� �IIGOI;LE��6lA�JD qEVELQFMCP�t,GO Y
- 2003 n ths Cosin411 G�ert ber;pf(he Val���unizl� pnvr�-(�I) a�� desi89�iPiP�o4retreqls along Wpsl. �'�y ThPmas J Bdnk'�� . �
i
al Billq ng.Vull:Qqloradp MeaUQlec Puva frpm.lhe c§nWdlqe:'Pf�ha oghRof�'. Its Vice Pie I�e it&f�an4r I Oo�msul.
� �� L�d@(la V(U2 tyfd�ro[ k waY�lo'.11 s proper�y�lino of Ihp P(a�g:ty antl�ha e' TOWN(1F Uhll. �
A7TES! � i Poa I pwPp�Y(roT Ihq we ler�i.moyt n do Pt: Ly 1 ,
� (.cralai pqnalASq�,Fown ClerK i��� M 1'�'s�park wasl Iq mo yvasfen moe�t propary� It ,+7(�
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ORDINANCE N0. 10
Series of 2003 , '
AN ORDINANCE AMENDlNG THE OFFICIAL ZONING MAP FOR THE TOWN OF VAIL IN
ACCORDANCE WITH TfTLE 12,ZONING REGULATIONS, CHAPTER 5;ZONING MAP;
' REZONING LOT 9A,VAIL VILLAGE 2ND FILING, FROM THE HEAVY SERVICE ZONE
DISTRiCT TO THE PUBLIC ACCOMMODATiON ZONE DISTRICT.
WHEREAS, the Town Council finds the amendment is consistent with the adopted goals,
objectives and policies outlined in the Vail Comprehensive Plan and compatible with the
development objectives of the Town; and
WHERAS,the Town Council finds the amendment is compatible with and suitable to
. adjacent uses and appropriate for the surrounding areas; and .
WHEREAS, the Town Council finds the amendment promotes the health, safety, morals,
and general welfare of the Town and promotes the coordinated and harmonious development of
the Town in a manner that conserves and enhances its natural environment and its established
character as a resort and residential community of the highest quality; and
WHEREAS, the Town Council finds that the rezoning is necessary to facilitate the
� approval of Ordinance No. 9, Series of 2003, amending Special Development District No. 36,
Four Seasons Resort; and
WHEREAS, the Planning and Environmental Commission of the Town of Vail has
reviewed this zoning map amendment in accordance with the approved criteria and findings for a
rezoning as established by Section 12-3-7, Vail Town Code, and has forwarded a
recommendation of approval at the April 28, 2003, Planning and Environmental Commission
hearing; and
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO,THAT:
Ordinance No.10,Series of 2003
Section 1. Zoninq Map Amendment
,
The Official Zoning Map of the Town of Vail is hereby amended as follows:
That Lot 9A, Vail Village 2nd Filing shall be rezoned to Public Accommodation
zone district from Heavy Service zone district; as shown on Exhibit A (attached).
Section 2. Effective Date of the Ordinance
Ordinance No. 10, Series of 2003, shall take effect on February 1, 2004, and upon the
adoption of Ordinance No. 9, Series of 2003.
Section 3. If any part, section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid, such decision shall not effect the validity of
the remaining portions of this ordinance; and the Town Council hereby declares it would
have passed this ordinance, and each part, section, subsection, sentence, clause or
phrase thereof, regardless of the fact that any one or more parts, sections, subsections,
sentences, clauses or phrases be declared invalid.
Section 4. The Town Council hereby finds, determines and declares that this
ordinance is necessary and proper for the health, safety and welfare of the Town of Vail
and the inhabitants thereof.
Section 5. The amendment of any provision of the Town Code as provided in this
ordinance shall not affect any right which has accrued, any duty imposed, any violation
that occurred prior to the effective date hereof, any prosecution commenced, nor any other
action or proceeding as commenced under or by virtue of the provision amended. The
amendment of any provision hereby shall not revive any provision or any ordinance
Ordinance No.10,Series of 2003
previously repealed or superseded unless expressly stated herein.
. ,
Section 6. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent
herewith are repealed to the extent only of such inconsistency. This repealer shall not be
construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore
repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED
PUBLISHED ONCE IN FULL ON FIRST READING this 6`h day of May, 2003 and a public hearing
for second reading of this Ordinance set for the 7`h day of October, 2003, in the Council
Chambers of the Vail Municipal Building, Vail, Colorado.
��;�,��'��y�
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���. `�.---�--�` ��
Ludwig Kurz, M or
Attest: C°�;������
�
L elei na dson, Town Clerk
READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 7tn
day of October, 2003. .
4l,�rd '
Ludwig Kurz, ayor
Ordinance No.10,Series of 2003
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relei onaldson, Town Clerk
Ordinance No.10,Series of 2003
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Exhibi.t A ouT.;is� N ...�
` Zoning Map . .. �a����u�E o ,,.., „
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Four Seasons Resort . a ...-.r
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Ordinance No.10,Series of 2003
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ar�sORDINANCE NO 10 Ea r ii�i �'`�f r 2<<r�e r�r' j
i �" � t a ,}�" 16er�esof�2003�;r�u� �l� ���?"�' M�'.����'� er:i
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i • � ' ^I O � � $ �, N ORDINANCE AMENDING THE•OFFICIAL ZONINC,M. ��;HETOWN Oa. �
�'� � AIL IN ACWRDANCE WRH TRL�12,ZONING REGU4 -JNS,CHqPTER S'*�W� �
i ONINO MAP R�ONING LOT 9A YAIL VILLAGE 2ND FILING FROM S��'C�V �
i �'�, ERVICEZONE;OIST�11CTnT�THEPUBLICtiACCOMMODA'('IOIyZQNEp,84� + � r� r � '�
� , � w�{ a Hd �'kXa il� k 1"`d:' iR x P��
� � H�REAS tha Town�Counail Hnds the"amendment 18 CopBfstent wdh{he a�op� �.��; {
oals,obIectives and polbies QuGined fd t�e Vail Cqmprehene�"va plah and FompaNbl,
; PROOF OF PUBLICATION iththedevelopmantob�ectivesoftheTown a�d +: �E�'* � +� ' � ' r��v' � � k'.�
� WERAS,the Town Council fmds the:amendment Is compat�ple wf�,,ApQ suitable�
� djacent uses aqd appropcl�te tbr the surrounding�ereas and y���a+m��f� �7f M'�^� "�• ��5" i�
� STATE OF COLORADO HEaens, the.Tawn,Council flnds"the..emendment promofas �xhealih safery', � �
, ��%� ora�s,�and general welfara;a( tha^TRwn and prar�oRes tha�cna�dihatedc�� + , ,�
armoniaus deyelopment of the Town,ir1 a.manner lhat conserves��d enhances H ;
� ' atural ernfronmeM `and.',its established ch�rsoter as a reso�t aand reside�llal �
i SS. ommunity of the h�9hest qualiry and ' � � q��` ' ' ' �"`* Y ' ` � , �!
HEREAS the?Town Council tinds that'the rezoning�ls�ecessery to faalilate ih s ,
i COUNTY OF EAGLE pproval ot Ord,inance No 9 Series o�2Dp3 art�epding Specle�bevelppment DlstnG ;
'No.36.Four Seasons Resort and ,�1,,,y"` '� -'"7�'x i �t'�M"� "'`� h �y�` °y ''
� HEREAS, Me Planning and Enviro�menlal'Commiss�on�ot ihe ToiNn oF Vail h '
� reviewed thls zoning map amendment Ih.accordanee with tlie approveQ cdtena an v
i Indings for e rezoning as:established by Sectio��1a-3 7 Vap Town Code and ha �
� � orwarded e recommendaGon of approvaG at the Aprtl �B s2003 PlannlFlg an,
� , nvirorment�I,Gorcim�ssio�hearing aGnd N ,����c�;���r�5�,"Q,i�� �° F�,S ,
`
i a^� OW THEREFORE 6E LT,,pRDAINED BY 7HE TQW�Y COUNGIL f?F THE TOWN Q, J h �,-�
AIL COLORADO THAT . � is � tt� � �si,t u��p �TM���� `��1 b
; I,Steve Pope,do solemnly swear that I am the Publisher of The Vail Daily,that the sai �no�1 ame�dmens �' ' ^� , x`�
I he-Official Zon�ng Map af the Town af yail Is heraby amended as tolloy�s r���da�'���
� per printed, in whole or in part and published in the County of Eagle, State of Col „ �� ,� � � ,f ,�� 4� !�.�a,��M��ry�l����^����a�-'"�TY,�9����
4 � � �� � ..�.., � , � , � n ,
; eneral circulation therein;that said news a er has been ublished continuousl ar� :� ����r�M� Y ' � ����y� ` '��"""`�.�,�rt�m�� ' ;,s �_ �
' i�n said County of Eagle for a period of ore than fifty-two consecutive weeks nex� �,���.+�'x�,���,�� ��""��ut'c�' """"'�'"'����;A�'������"��'�'��������� �`�'��5'�
�� r a �7+�v y„s d -f'"E '��+1'�'''�.• �"'�+dk fF' h 7�'�t`�, "i t n�ri rt�FL,� m -�.
� rt $s.'� < ��5 � �,� �v �" n'� ��`p �j'u^'„y � n� .�
� publication of the annexed legal notice or advertisement;that said newspaper has be , �� k�t�,���qt �'"�"'"4 ��.,;,;� � �������,�����r,a,��,r��,�,����� ��� �;
United States mails as a eriodical under the rovisions of the Act of March 3, 187�� ,��s� a�� 1 `��`� � �"�� ���" `���'� �°'+ ��' �� � �
i P P r, , +' �����s �r � � ' �^�"�tr�,m �r��� u �
� �ments thereof,and that said news a er is a dail news a er dul ualified for ublis ��" "+-�''A"'4�+'�x�.^�°� k�"�''"�'� "���1 r�£�+"'�f'�`��� �
, P P Y P P Y q P �, � '`,.� �;�a���.�� �yA,'�"�w a,,�,� � ,r,�d ,�
, and advertisements within the meanin of the laws of the State of Colorado. �` �, �? ���*���� a�� f 3,���� ��`��� " r �
9 f t � x h < � ❑} ,s� n�=�
� � a�1r�� �o r"a '�` k��,,, � j �"�M1ut�"'14��''�'rdr� "wrst
I r i'"a ,tr P'�•,dy � �'�F E����.�.. ,�a il}�° y`�`�p �'�(w' .
� r�� �'� � t ��,���„� i '",t�� �`�'F$bY,�f��y„urf�"k,
, That the annexed legal notice or advertiSement was published in the regular and enti �'"; � z " ` �,,�, ����,��'���"'`,s�^r�'`�a"" �
� � �� ���, �� �� ir � � �,� �,
I , � � �,,,.�.,.,:,,,.�_��+,'�v � �, �' ���"����fl �-r
' number of said dail news a er for the eriod of � consecutive insertions � �'� " �` �`�;� pr�� ��' '�k n�F� �° � '
, Y P p P ................ � � � ��,��zad�:� � � " � �a , , d, ��C ���w� r
< > z���nk'�� ���'�^x�� ��
� - ; a �� . n� � � ..��rY4.§M%,��� �k A p k'�r�n�d. t
� publication of said notice was in the issue of said newspaper dated.�. � , na��oc an,�Yad uillage 2nd Filing shail be rezonec(lo Publfc�ccommodadan Fan �,�
I ..... Ibt ir���
., isCnct from Heavy Serv�e,zone diaV�ct as shpw9ln a�ahed mep E,��i,� �,�
� ectlon 2. Co9diUons.' 7 y il h for re arat(on°for.the_c4nstrucqonroF Special a�
, A.D.. ...�.......and that the last publication of said notice was in the issue of y '
hatthe rezonin of Lot9A VfaiYVilla e2nd Fllin $ha'ction±3���lna u parttsectlon ;;
� ... ........ ,./.................... F u�lopm�e�Pist cYNo 869 Fou¢Sea ona Re ort. �iitlon•af t�e �sl�sso thisre�,on
i �,�� . ......�� Y tisectlo sentence cla�se or phrasee tethl�s�,00f�the remalnln�partasnon�eld tolb
i //� rwal�d,such decfs�oq ahall not effect th v ty g rdl
Y r�/••••• Y „ ance;and theTown Council here q � `
a e .... passed thls.ordinenca,an �-
� In witness whereof 1 have hereunto set m hand this...... da of.. ty deci res it wouia nave ,
i ach part,Sectlon,subsecborr sentence alause or phrase ihereof regard�ess oY th v
i act ihat any one ar more parts s9ctfons subsecNons,sentences clauses or phrase
i e declared invelid ' � " r'A�`"
i ection 4. The Town Council heieby finds ,'detertPlnes and declares that thl
, � b�'...rdinannw.ianweaesAtV.Af1d=OfODO[,tOLathe�healtt1:.�af4ry�nd�ve,�fare,of,the To�vn of�Yai
4
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� ^��th�' �+lri��,AR01G'IANC�NQ.1Qaa�'���i�+�#�ri§�`�'Y
� ��`+k �t bp;�,ab Sefleaof20034 }'� ��P�A'�q �
�P� ��,��nla�'W'�rnL4+� 3S, di����`��t f I
, ' , ' O^O� �qPI` OHDINANCE ID�NG�T EF�pFFICIAI�1
�� `ZONING'MAP FOI �'OYy�N C1F VAIL IN AC"'
V ,,C ORDA NCE WITH�;n,7rc 12 ZdNING REGULA*n
TIONS CHAPTER,5;YONING`iMAP�REZOryiNG�
L07 9A YA14 VILLAOE xND FI�ING FFiOM THfi�n;
�IjEqVY SERVICE ZQNEpISTRIC7T0�F���pUB�C�
��IGACCOI�MODlA710N ZON�rU1SjF�IC'1' +",�;�n����
� ,��"¢ 'R;�: M`�.i���'�,�i,v��iiA',{z���'��`�VL�,wS���l���'��W�'�f����
PROOF OF PUBLICATION '�wqt�RE�s� tna�own��our�l►�?� d&th��me�a��
man��)��o4neisren�With tk��Fed��goals;�obJec
tives ac�d,'policies putlined I�t th��le�qComRreheo�
sive plan�and cCr�paGt��e W�tFrth9 de��loQment�nl���
STATE OF CO�ORADO �Iecuvesotch�Towm'and'�-0��'�,���'��i��*r,�iv=�' ���n
�tV�HEREAS the Towr+ Gou4�}Il+;'{�nds thff�amend s�
r menQ�s aompatibCe-Wfth and¢�Itabl�F tor�dJecenC�
SS. uses at�d aPp�PPriale�,iGl'�,+,{h�-'surrpu�d�r�qC.afaas'�;,
a�6 "+ `� �,��s�.5'.�'"'F�'ca�'�ra'��f t������VJ!k�� �'�
yWH�AEAS ttMe�7own*Cp`�in��l;�ndarthe�atnand�,
��merJt promotes tna H.e�icp�satecy,�notals and gen��
COUNTY OF EAGLE �eral wel�are oN t�e TowR aau�'promdtes kl�a coo�dt ,�
�natad afid hetmonjpu�deuelopmenPvieth�,7oWrt It4';
,ta rr1'annet that conservas a�ad anhancas U�'.n�turel;
'�'envlronment and��s'.estab��hed�Cha�acteY as a re��
� � � �aort andfesiQet�t�a(�gm ��I�Rf th���hiti�t�qsE qual4 ;
afld = e Im� ob�,vM�k'���� '��vN t�� �1�.;s � 5�d
�+�FI�R�AS 4bq Toyv��o4�1G11 fip�s 1h�t 1�"qof�Q di,",
� �nq Is Itecessary�ta„tacilllate t a aPpy'aK'�Ip
�aanaa No 9""Sen�s�ot 2QO��.emQ�ding Spec�al j
I,Steve Po e,do solemni swear that I am the Publisher of The Vail Dail ,that the same dail news a- w`��e�eioPmen�DieqWClNo�s jF�o�w�staa6o�s�R�-,��
P Y Y Y P �sort,and; h r +��.A �� ., �•
per printed, in whole or in part and published in the County of Eagle, State of Colorado, and has a �mjgsion',oStlieT w'�nafnV`�ei`^M�sre eWed�h�ns�z°on,�;
general circulation therein;that said newspaper has been published continuously and uninterruptedly t���g maat amandmen�in ac�o�ianee wicr�;ina ap ;
in said Count of Ea le for a eriod of more than fift -two consecutive weeks next rior to the first n proved�rtre�a.and:f�d��as ror;a"rezo�ins as a9 F�
Y 9 P Y P �tablishail by Seatipr;ix'42 a'Fr�VdIPi�'own Code and I
publication of the annexed legal notice or advertisement;that said newspaper has been admitted to the �'�has.roraardea a raaorqtnec�da}lon of apprpvaG at;
tl�e.A [�4,26 i2003±���lann)pg,�s d�Ehu�ronment���
United States mails as a periodical under the provisions of the Act of March 3, 1879, or any amend- �,�.Eo�,rnsswnn�arrng ana,,�;z.����a�'��r'�,.°a +�''` ��
NOW.7HEREFORE BE I�`OqDMINED BY TF�E�
ments thereof,and that said newspaper is a daily newspaper duly qualified for publishing legal notices ��TOWN COUNCIt pF tHE'�OYyI�OF VAIL COL n�
�ORADO;THAT s,R !`�,rir,���4�,t,a �t' 4�r
and advertisements within the meaning of the faws of the State of Colorado. �aseccion� Amer}dmenf +��`E�x�x����c�� �t"�
TYte Off,lelaP�ZoFling Map�p�xt4�e Town, of�{ai14 is�;��`
�hereby amendad as.�olloWSrt,rr,.��r ��� � r�,� �i
That the annexed legal notice or advertisement was published in the regular and entire issue of every €1'r�aR.4�oc an Va11,VIIlagQ�nd�:Fiil�e shau?ba raz?
a oned ro`Pubilc AFCommad9t�nr,��^2on9'distnct frortu;
�Heavy'Ser�ncs zone dlatrl�t ra&,shaWn in att�ched��
number of said daily newspaper for the period of ........�......consecutive ins rtions;and that the first �'�ep�����'��4�f�'���������,���� r>�`
//� rk �'� � � sx } a
publication of said notice was in the issue of said newspaper dated..... .. ...............l..4f.......... ��y � ��,��—�.����'�u�j�x�� �
.. �wR r :,�,�.,�°,sy+ry� * 7"1 yi (���p�i y�N��
A.D... .�.....and that the last publication of said notice was in the issue of said newspaper ,�,� �T ��"= "�"""""""
.. . ���• �X�,t�R.�Y^�YA t '� .±,?*1jyyU„ �p.
' �/)'`�� � Fi�S �'61 r 4H'1�aM .u�� I'�F
dated :.. . .��.J..A.D............t�",�'r�`'' � �� "�+��-'�8,-���-� �;,
...........
� ```��� ,��,�- ��a'���� "` �`�" �t{��
' .... a ��� +��*�' �&
In witness whereof I have hereunto set my hand this......./�.day of...... . ......... . .:..� "'�� ��,� ���„�� ' d , �W�.
a��.� �� r^�"�,�� r"��'� ,�� "r
�,
�� �Section 2 .CondlNqns �,;h,`��'� � h;N,a ''"��!..
i�,That the tezoning;ot Lot 9A,Vail V(Ilege 2nd FUing
��eu�wka,a�ect�:a�,sucJ��.�.aie,t�„�c��,�smoiuso�
I accept the attached publication of Ordinance 10, Series of 2003, as pubiished in
, THE VAIL DAILY Friday, January 23, 2004. ,
,
Initial Date
� 1 zy �� Matt Mire
.�vL� 1 26�0�{ George Ruther
__ _�.�,
. �i '�S.S✓=: 1f+�- � �� a��£ 4� Aa9��ie�lPT y�"j��;d'✓�O i�`�u�L `M�,,�, .
� �Ji� � r����.���t�'��L����k'���.,'
b � n V i`4�' ��� s .;'wa�"�,,� t"`-L���7�i'4`���m,E r��' ?�'," -
�' .�1 .-i"r� _ ' , _ .
_ " � ��.'-� .�5. ��r fr.3's r r',£c:�,r'�y� .
r'��The�Oflicia Zonng MaP omthe ToWn�"'o��f,;��s��
�-hereby amended as tollpws i � � ;.� �
-�"That Lot`9/i,��lail Village 2nd Fi(ng st�ll•be.fez ;�
oned to,Public Accor`?tmodatwp zone d{strlc'�jrom r�
' Heavy Se�vtce zqne d�stncP as showr�on Ezh�bl�,Arl
.:v (attached). ,r9�? �#`�'��_� 1� S�"��� d
, t:: aT
� Section.2 "EffectrvE Daie of'the Ordinance ��
�-' Ordlnance No 10 Serles of 2003 shall take eHect 'I
� on February 1 2004;�and Jpon the ado�ptio�n_-9f�Or�„�
dinance No 9 Senes of 2003�"4,� �-" ��'����I
��' '� �.r �. :
Section 3 Ifsany Par sec�ori Subseclio`n se��
tenqe elause or phrase of this-0?dinance�ls,for an
reasoq�"held to beilrrvalld such�decisiom�sMall not e�1
eHect t11e validiry of•.the remajrn"ng porti�as�of th��=1
ordmance and the'Town Council hereb declares;
% `d Would'.have passed th3 ordinance and each:
Qart s seGtion suhsechon F se�tence clause or
�phrase thereof regartlless ot the fact lhat any ane r
� or,�more-parts�,secrnns subsectian���ntencesgi
���clauses brph�ases he deqlaretl�nVal�d���+�`��a ,
�, s. v ,� �������•'�+�`-�,�"k+
��,,Sect�on 4 The Town C4unci4herebyytinds s�eter -
mines anddeGlares�that this�ordlna�ce,�s.�ecessa
'ury and proper fon�tie�health satety artd�ve�(f�re pf.'
`�the Town of Va�l and'tfie m�abit8nts thereo�'"�.T�"`�'.�.�
C� �h,� ,�.,�r,���`��r",�'�r,��u.�.�ro isio�-�
'�vSectiorv5��e amen ment of�ny,p
� .�., .y PUBLIC NOTIC� �'� ��.,�� �the Town Code�as�pro/idedan this oed�nanca�shajl
IF � �, CORREGTED PUBLIC NOTICE ,,,�. �'notzaCfee[ay��9ht whicF�has�accYU�ed�anyr�dU�y
�,� x� �?�Q'E'-'=��r'����mposed an latian tha��urred prJ4r�o tt�e et
���e.pt�blicno$ee�,for�Oramancz.No�IA�,'Senes-0f��tfecfive�afe IaeJ'eqf,'�afiy prosecuhon�omrnenced�4
a�s nbr � ofher a�tlo°�o,pfo6ee��9 as eomfJ�e�cetl*
���2003�pf�biished on October�1� 200=3�shall tie� � `� 5"rovision amBnd"ed�fi
z t�erebyCorrectedaslallows�� .x � ro ub e���Mu���,�l�e P T �"
k� �'""{ "� �o isio ereby�s�,half,��'�'e�
� �,. ,3-�,r .}e �� � r arrld`n mer�t a�",� �Y � h
"�""�` ��"OADINANCE NO"�0,., ' � ro�tSion��a or� ance p[�1:ous y re z
h,.s�""�x,�` t� 4r . �, - vwe anY,,P, "� ��2 � r ..
k�,�,��,,, �px���.�Senes�of.2003,�,� � eefed o f5'GP �ede�a4�ISSS�,expPessly'�tat
5� I�' �.�'�+'st'�.-. �t^.'.,'F F,��E .�,ry'�`: PCler@In-`e . +�.a. �r+ �ro 3x..
�AN`„QRDINANCE AMENDING TfiE OEFICIAr
€ZONING MAP.'POR THE TOWN OF VA I L I N A G�,,, Section 6�AlI byla orders��so�u tians a�d o,�(-
pa e 10 SACHAPTER"S Z O N I N G M A1 P;R E Z O N NG.$�,'�'nancfl5��,o,f�'�pa�ts tiier�o�rineonsistenC heCewith are,�
,.,,, �LOT 9A;VAIL'yILIAGE-2N�FILING;FROM TH� �repealed to f ha�`terS t o,�l y+o f s U ch fnconsisf�n c j r-�
HEAVY SERVICE ZONE DISTFi1CTT0 THE P118 �Th�aFepeale��ta5�o�Be�o�St�uecTta r@vise afl�l�"
. bylaw order tes�'olUtlon or qldlna�Ge Qr,b��titherFe�
n"`,.LIGACCOMMODAT10N7,ONEUISTRICT c ot theeeroforerepealed'� '�.n�i �����,��
t-� t t i si�.;, L ' '- ' �S y^ �'k�y:�^y'-,4`r �a a 7K _.
��IVHER�AS� the Town�ounci(rhnds�t�e arnend � TRODUCED�i;REAO O�l FI.RSf REP,�bJM1LG:pP ,
meilt(s cons��tent wdh the adopted goals obJec PRpVED�ANDyORDERED P,UBL1Sh�ED;ON��IN�;
a�" hves�,ndpolicies oUtllneGl:�n the Vail:Cortlptehe��ULL;ON FIF�ST.�READING this 6tk�day oF,MaY ,�
"'�"sive PIa1�aaA compatible Wit�,thg deVeTapment ob �OQ3;�d a p�tk��,F,�e��n�for sectlnd i�ading oJx,.�;
�, �eetives of theTo4vn and?tr ,f` a�� th�s`Or9man e�S,��for the �th ,�day of Oct be��,Sii
r
s�.r.,t W�iERAS�the,:ToWM�o�nc�I hndS the am0ntlment Z�3;'�t e�Qounn F Chambe of the VaI6 tv� nici
m�'t,�is compa�bJe'<with�`and sylfable to�dlacent Uses>��al B�Ilding�/�il:G�lorado��� 4���,�,�`�r'`' �'T�
'��'"'�nd ap{SrAP77ate for`(h@,suROUnding areas and � � p K�2 a,� v *c'�r�„���, a �-,��'
WNEEFJ�S the ?own 6ouna4 tfnds the amerld����tg` �, n��,�y� � ������ k�,�,�I
``�.^"`�m e n�d r o rn o f e s t h e he�l�h�safe l y xnoi0ls,and gen .�.. �O j e l e i D o rt�a� son r�l'ownC�erk �fi �§,e {,,,
aral'welfare o[,the Towm nd�PCOmotes the caor di $, ` �,�;, ,�p F. `x3 c �r�. r r°�
� nated and Naimonipus developmenf;of theTow`n.lm�.READ ANp�AP�RO�/E�QN SBGOND�t�ADING';
a manner thaF conservesiand enhances�tsnatyra� '�AND ORO�REa�'UBL13NE4 thls 7lhGay oE OGSo i�-'
� �
'•enviro"hment antl irs estatilished character as a�e- � ,,,,,;�
k� sort a�d residential comrtiunily of the.h ghe�si q�a��� bet 2003� Hr f� ��U���ua,;�N��� ;ji
y
ty,:$n� r :: _ ���test
� WHER�S the Town'Councll ffhds.that t�e�reZO� �orelei Dgnaldsor`°'Towr���eF�„� ��,,,��.�,{,� :=";
z ��- � �x �'
f
f ti tng is necessary to facilitate the appfoJal'of CS�dI,� r�r�, � y j
� �ance No ��Series of:2008,,amertd��g $P�la4�' fi ;, a�,������XH�61TA _,y�y� y ��ry:�,
I, Development Distnct NA a 3�Four'5e�sqns�e�t,r�� ����� - � „{
�� WHEqEAS the Planrnncj a 3YEm��onmenta�Gom ' r,��*�""` �"; .c.�.r�,�� lry��'S' �,�
rtiission of th'e fiawn of Vaif has rewewed this z�n f�..�a �Ar�l,�R�;��i �r���;
iri t�ap artiendrhenUhtaccordance with�e�: P•� ���'� °� "�'*
g ",�.�'�"' ,�'""�"",�,,� , , �x,'� °~�1
pioved crltena ar�d,f�ndings tor-.a iezonmg as es�����,,;� � �, ��� 2
r 'f taW�shed b�5ecnan t'2�7 Va�l fown C�1a and� #`�`a � ,
has forwarded a (ecortlmendaboFl{pf approval at ..r--'��,�y�� � '� � �YN
eyw
�"tha Apnh 28, 200� Plaoniag and Errvironmenlal , �� „ a
CLortr�issidn�heann9 and - � .�.G t �..v�.+. . * � - ��
�: wsve��t�* u.�' 6 � x
, � , .
't a _NpNI THEREFORE BE IT,ORbA1NED BY'TH���w,,�,����,�t,�'�s f ,�`i� a;�
?ON1N COUNCII OF THETOWPI OF�AIL EOL ,
ORADO THAT '�"�"'��`�' "r�; c;= ���dma�ce NS i6 Senes of 2003 %� F3 �
� �, �,t,,.�.. � .,x �� :• •.r '� Published m the'Vail Daily January 23;42004 4t-n '
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� � ORDINANCE NO. 1
Series of 2004
AN ORDINANCE AMENDING SECTION 6, ORDINANCE NO. 9,SERIES OF 2003,TO CHANGE
� THE EFFECTIVE DATE OF THE ORDINANCE FROM FEBRUARY 1, 2004,TO JULY 10, 2004,
AND SETTING FORTH DETAILS IN REGARD THERETO. .
WHEREAS, On October 7, 2003, the Vaii Town Council adopted Ordinance No. 9,
Series of 2003, to facilitate the redevelopment of the Chateau at Vail hotel site; and
� WHEREAS, the developer of the hotel site, HB Development Company, and the owner of
the property, Waldir Prado, mutually agree to the amend the effective date of said ordinances to
facilitate the construction of the Four Seasons Resort, and;
WHEREAS, the Vail Town Council finds that the new effective date of July 10, 2004, of
Ordinance No. 9, Series of 2003, corresponds to the expiration date of Ordinance No. 14, Series
of 2001, the original ordinance establishing Special Development District No. 36, and;
� WHEREAS, the Vail Town Council finds that the proposed amendment furthers the
municipal development objectives of the Town of Vail; and
WHEREAS, the Vail Town Council considers it in the interest of the public health, safety,
and welfare to adopt this amendment to Ordinance No. 9, Series of 2003.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO, THAT:
Section 1. Section 6, Ordinance No. 9, Series of 2003, of the Town of Vail shall
hereby be amended to read as follows:
"Ordinance No. 9, Series of 2003, shall take effect on July 10, 2004."
Section 2. If any part, section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid, such decision shall not effect the validity of the
remaining portions of this ordinance; and the Town Council hereby declares it would have
passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof,
�
Ordinance No. 1,Series 2004 1
�-
� ,
. <
�rt'� regardless of the fact that any one or more parts, sections, subsections, sentences, ciauses or
' phrases be declared invalid. ,
Section 3. The Town Council hereby finds, determines and declares that this
ordinance is necessary and proper for the health, safety and welfare of the Town of Vail and the
inhabitants thereof.
Section 4. The amendment of any provision of the Town Code as provided in this
ordinance shall not affect any right which has accrued, any duty imposed, any violation that
occurred prior to the effective date hereof, any prosecution commenced, nor any other action or
proceeding.as commenced under or by virtue of the provision amended. The amendment of any
provision hereby shall not revive any provision or any ordinance previously repealed or
superseded unless expressly stated herein.
Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof,
�.,� inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall
not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore _
repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED
PUBLISHED ONCE IN FULL ON FIRST READING this 6th day of January, 2004 and a public
hearing for second reading of this Ordinance set for the 20th day of January, 2004, in the
Council Chambers of the Vail Municipal Building, Vail, Colorado.
Ordinance No. 1,Series 2004 2
� , �
. • � � S . ,.�� QF � ,
O '..�/�
,� . ,�
�� � � � �i�`�
' ���� , Rodney lifer, M 'or
ATTEST: �`
I ' cQE ORP��
• `�
L ei D naidson, Town Clerk �
READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 20th day of
January, 2004.
. ��G'F V�4� j��
L% ;'s
'.i_
�`'. .� (
Rodney Slifer, M or
�����
:
ATTEST:
°O
•CGL0�1''�
� \
L relei� onaldson, Town Clerk
Ordinance No. 1,Series 2004 3
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COMPROMISE AND RELEASE AGREEMENT
THIS COMPROMISE AND RELEASE AGREEMENT ("Agreement") is entered
into as of the date set forth below between Nicollet Island Development Co. ("Nicollet"),
Holiday House Condominium Association, d/b/a 9 Vail Road Condominiums ("9 Vail Road")
and the Town of Vail ("Vail").
WHEREAS, Nicollet is a party to a purchase and sale agreement with Daymer
Corporation for the assumption of Daymer Corporation's purchase agreement with Doramar
Corparation, f/k/a DAB Investments, Inc., d/b/a Chateau Vail Holiday Inn for the purchase of
certain real property located in the Town of Vail, County of Eagle, State of Colorado (commonly
known as the Chateau Vail); and Nicollet is a party to a purchase and sale agreement with
Moellentine Land Company, LLC for the purchase of certain real property located in the Town of
Vail, County of Eagle, State of Colorado (commonly known as the Alpine Standard), both
properties are more fully and particularly described in Exhibit "A" attached hereto (and shall be
jointly referred to herein as the "Nicollet Property");
WHEREAS, 9 Vail Road is the association which represents each unit owner, which in
turn are the owners of that certain real property located in the Town of Vail, County of Eagle,
State of Colorado, as more fully and particularly described on Exhibit "B" attached hereto ("9
Vail Road Property");
WHEREAS, Nicollet is currently requesting and pursuing certain entitlements from Vail
in connection with the Nicollet Property and those entitlements are currently contained in
Ordinance Nos. 9 and 10, Series 2003 of the Town of Vail, Colarado, which Ordinances are set
for final approval by the Town Council on October 7, 2003;
WHEREAS, in connection with the entitlement approval process and as a condition of
approval Vail has required that Nicollet provide for the relocation of four (4) existing surface
parking stalls located on the 9 Vail Road Property to a different location on the 9 Vail Road
Property and has required certain unspecified parking rights whose c;urrei�t location on the
Nicollet Property is uncertain;
WHEREAS, in connection with the entitlement approval process, 9 Vail Road has made
certain claims and allegations concerning the occupancy of air space above the Nicollet Property
and access and certain unspecified parking rights whose location on the Nicollet Property is
uncertain;
WHEREAS,Nicollet has agreed to the relocation of the four (4) existing surface parking
stalls located on the 9 Vail Road Property and to parking rights for six (6) vehicles on the
Nicollet Property, however, Nicollet disputes and specifically denies that 9 Vail Road has any
rights, claims or privileges to any access or parking rights on the Nicollet Property; and
WHEREAS, all of the claims, allegations and Vail requirements made, asserted and/or
required by the parties hereto have been fully compromised and settled and the parties hereto
have agreed to release any and all claims that they may have against each other pursuant to the
express terms of this Agreement.
- 2 -
NOW, THEREFORE, in consideration of the sum of one dollar and other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged by all of the
parties, the parties hereto hereby agree as follows:
1. Contemporaneous with the execution of this Agreement by all of the parties
hereto, Nicollet and 9 Vail Road shall each execute the Air Space Easement Agreement in form
and content identical to Exhibit "C" attached hereto and deliver said fully executed Air Space
Easement Agreement to the Escrow Agent (as defined below) to be held by the Escrow Agent
pursuant to the instructions of the parties hereto as contained in the Escrow Agreement (as
defined below).
2. Contemporaneous with the execution of this Agreement by all of the parties
hereto, Nicollet and 9 Vail Road shall each execute the Easement Agreement in form and content
identical to Exhibit "D" attached hereto and deliver said fully executed Easement Agreement to
the Escrow Agent (as defined below) to be held by the Escrow Agent pursuant to the instructions
of the parties hereto as contained in the Escrow Agreement (as defined below).
3. Contemporaneous with the execution of this Agreement by all of the parties
hereto, Nicollet and 9 Vail Road shall each execute the C'c�nstructic�n Agreenient ���d Temporary
Construction Easement Agreement in form and content identical to Exhibit "E" attached hereto
and deliver said fully executed C�o��structic�l� .'1�rr:en��nt a��t� Temporary Construction Easement
Agreement to the Escrow Agent (as defined below) to be held by the Escrow Agent pursuant to
the instructions of the parties hereto as contained in the Escrow Agreement(as defined below).
- 3 -
4. Contemporaneous with the execution of this Agreement by all of the parties
hereto, Nicollet and 9 Vail Road shall each execute the Termination of Easement Agreement in
form and content identical to Exhibit "F" attached hereto and deliver said fully executed
Termination of Easement Agreement to the Escrow Agent (as defined below) to be held by the
Escrow Agent pursuant to the instructions of the parties hereto as contained in the Escrow
Agreement(as defined below).
5. Contemporaneous with the execution of this Agreement by all of the parties
hereto, Nicollet and 9 Vail Road shall each execute the escrow agreement in form and content
identical to Exhibit "G" attached hereto (the "Escrow Agreement") with Land Title Guarantee
Company, as escrow agent (the "Escrow Agent").
6. Nicollet, together with its shareholders, directors, officers, employees, successors,
assigns, agents, accountants, consultants, and attorneys, does hereby release and forever
discharge both 9 Vail Road�e�°����t-�s�oia-��e�������a�s-������
u�ce��s, �*^r*°, �r�' °**^r^°��°, and Vail, together with its elected and appointed
officials, employees, successors, assigns, agents and consultants from any and all claims,
demands, debts, causes of actions, suits, express or implied warranties, covenants, contracts,
agreements, easements and promises whatsoever, arising priar to the date hereof, that Nicollet,
together with its shareholders, directors, officers, employees, successors, assigns, agents,
accountants, consultants, and attorneys, ever had, now have or may hereafter have against either
9 Vail Road�c0�°+ccnc°-i�c�"*-rrrrzc�—v0ir"r'�cr�—°ci��0'����c�cc2��9�S�S�2��S�acc^vciir�cmcS�
r�„'*�r*° �r�' �*+^r�°-��, or Vail, together with its elected and appointed officials, employees,
- 4 -
successors, assigns, agents and consultants by reason of any matter or thing, known or unknown,
arising prior to the date hereof, including but not limited to those arising out of or in connection
with (i) the operation, management and functioning of the Nicollet Property and the 9 Vail Road
Property; (ii) the entitlements requested by Nicollet and to be approved by Vail in connection
with the redevelopment of the Nicollet Property; (iii) Ordinance No. 9, Series 2003 of the Town
of Vail, Colorado; (iv) Ordinance No. 10, Series 2003 of the Town of Vail, Colorado; (v) the
June 10, 1991 Easement Agreement, filed of record on August 28, 1991 in the office of the Eagle
County Recorder, State of Colorado in Book 561 at Page 54; (vi) 9 Vail Road's involvement
with the Nicollet Property, in any capacity, prior to the date of this Agreement; (vii) any and all
historical land uses by and between the 9 Vail Road Property and the Nicollet Property; (viii) any
and all historical parking agreements, understandings, commitments and/or promises, whether in
writing ar oral, concerning the Nicollet Property or the 9 Vail Road Property; (ix) the actual use
by 9 Vail Road of the Nicollet Property for parking, access, ingress and egress, prior to the date
of this Agreement; (x) the actual or perceived dependence of 9 Vail Road on parking, access,
ingress and egress to the Nicollet Property for any purpose whatsoever; (xi) the historical conduct
of any past or current owner of either the Nicollet Property or the 9 Vail Road Property; (xii) the
actual or perceived reliance of 9 Vail Road on past or historical rights to use the Nicollet
Property for parking access, ingress and egress; (xiii) any and all property right claims against the
Nicollet Property or the 9 Vail Road Property for any use, enjoyment or other purpose by either 9
Vail Road ar any of its past, current or future unit owners or by any past, current or future owner
of the Nicollet Properly; (xiv) any and all property use claims against the Nicollet Property or the
- 5 -
9 Vail Road Property for the use, enjoyment or other purpose by either 9 Vail Road or any of its
past, current or future unit owners or by any past, current ar future owner of the Nicollet
Property; (xv) any and all past approvals and/or entitlements, considered, denied or approved by
any governmental body (including, without limitation, Vail) concerning either the 9 Vail Road
Property or the Nicollet Property; (xvi) any and all parking disputes, claims or allegations by and
through the parties hereto concerning the Nicollet Property and the 9 Vail Road Property; (xvii)
the actual use by any current or past owner of the Nicollet Property of the 9 Vail Road Property
for access, ingress and egress for trash removal; and (xviii) any and all other matters, directly or
indirectly, related to any of the matters referenced above. Notwithstanding the foregoing, the
parties hereto specifically agree that the foregoing releases shall not, in any way, affect their
obligations and duties as specifically contained in this Agreement, in the Exhibits or as to be
required by Ordinance Nos. 9 and 10, Series 2003, or pursuant to any Town of Vail general land
use code or regulation. As such, the parties hereto specifically retain and preserve any claims
arising out of a breach of this Agreement, the Exhibits, or Ordinance Nos. 9 and 10, Series 2003.
7. 9 Vail Road, +,,,.�+,,�,. < ,;+�, ;�� �,,,.,,.a� o ,.�,.<,vo�� , ,,;� „ � �+,. +�,o �,�io�� o�+o„*
p�l�i��°,a 1.., 1.,.,.1� �.l}EE8SS6�S�S�d�9�2H�S�—c'�E6Auir""ccmi"TE6ir3crrcizi+"ir�ini'�c�—c^r+r�^viii�zS does
hereby release and forever discharge both Nicollet, together with its shareholders, directors,
officers, employees, successors, assigns, agents, accountants, consultants, and attorneys, and
Vail, together with its elected and appointed officials, employees, successors, assigns, agents and
consultants from any and all claims, demands, debts, causes of actions, suits, express or implied
warranties, covenants, contracts, agreements and promises whatsoever, arising prior to the date
- 6 -
hereof, that 9 Vail Road, �^,.°+�,°,. . ,;*�, ;*� �,,.�,.a � ri,,.,00� , �:+ ,. � ��„ ��,v +;,iio�� �.,�o.,.
, , , , , , , ever had,
now have or may hereafter have against either Nicollet, together with its shareholders, directors,
officers, employees, successors, assigns, agents, accountants, consultants, and attorneys, or Vail,
together with its elected and appointed officials, employees, successors, assigns, agents and
consultants by reason of any matter or thing, known or unknown, arising prior to the date hereof,
including but not limited to those arising out of or in connection with (i) the operation,
management and functioning of the Nicollet Property and the 9 Vail Road Property; (ii) the
entitlements requested by Nicollet and to be approved by Vail in connection with the
redevelopment of the Nicollet Property; (iii) Ordinance No. 9, Series 2003 of the Town of Vail,
Colorado; (iv) Ordinance No. 10, Series 2003 of the Town of Vail, Colorado; (v) the June 10,
1991 Easement Agreement, filed of record on August 28, 1991 in the office of the Eagle County
Recarder, State of Colorado in Book 561 at Page 54; (vi) 9 Vail Road's involvement with the
Nicollet Property, in any capacity, prior to the date of this Agreement; (vii) any and all historical
land uses by and between the 9 Vail Road Property and the Nicollet Property; (viii) any and all
historical parking agreements, understandings, commitments and/or promises, whether in writing
or oral, concerning the Nicollet Property or the 9 Vail Road Property; (ix) the actual use by 9
Vail Road of the Nicollet Property for parking, access, ingress and egress, prior to the date of this
Agreement; (x) the actual or perceived dependence of 9 Vail Road on parking, access, ingress
and egress to the Nicollet Property for any purpose whatsoever; (xi) the historical conduct of any
past or current owner of either the Nicollet Property or the 9 Vail Road Property; (xii) the actual
- 7 -
or perceived reliance of 9 Vail Road on past ar historical rights to use the Nicollet Property for
parking access, ingress and egress; (xiii) any and all property right claims against the Nicollet
Property or the 9 Vail Road Property for any use, enjoyment or other purpose by either 9 Vail
Road or any of its past, current or future unit owners or by any past, current or future owner of
the Nicollet Property; (xiv) any and all property use claims against the Nicollet Property or the 9
Vail Road Property for the use, enjoyment or other purpose by either 9 Vail Road or any of its
past, current or future unit owners or by any past, current or future owner of the Nicollet
Property; (xv) any and all past approvals and/or entitlements, considered, denied or approved by
any governmental body (including, without limitation, Vail) concerning either the 9 Vail Road
Property or the Nicollet Property; (xvi) any and all parking disputes, claims or allegations by and
through the parties hereto concerning the Nicollet Property and the 9 Vail Road Property; (xvii)
the actual use by any current or past owner of the Nicollet Property of the 9 Vail Road Property
for access, ingress and egress for trash removal; and (xviii) any and all other matters, directly or
indirectly, related to any of the matters referenced above. Notwithstanding the foregoing, the
parties hereto specifically agree that the foregoing releases shall not, in any way, affect their
obligations and duties as specifically contained in this Agreement, in the Exhibits or as to be
required by Ordinance Nos. 9 and 10, Series 2003, pursuant to any Town of Vail general land use
code or regulation. As such, the parties hereto specifically retain and preserve any claims arising
out of a breach of this Agreement, the Exhibits or Ordinance Nos. 9 and 10, Series 2003.
8. Vail, together with its elected and appointed officials, employees, successors,
assigns, agents, and consultants does hereby release and forever discharge both Nicollet, together
- 8 -
with its shareholders, directors, officers, employees, successors, assigns, agents, accountants,
consultants, and attorneys, and 9 Vail Road, teg�t-� r ��r;+'� :*� '���ra, ��s �r°
�*� �*��*� „�*��*n ��� �**^r�°�,° from any and all claims, demands, debts,
� � � � �
causes of actions, suits, express or implied warranties, covenants, contracts, agreements and
promises whatsoever, arising prior to the date hereof, that Vail, together with its elected and
appointed officials, employees, successors, assigns, agents and consultants ever had, now have or
may hereafter have against either Nicollet, together with its shareholders, directors, officers,
employees, successars, assigns, agents, accountants, consultants, and attorneys, and 9 Vail Road;
, , � , , �
at�e�e�s by reason of any matter or thing, known or unknown, arising out of or in connection
with (i) the entitlements requested by Nicollet and to be approved by Vail in connection with the
redevelopment of the Nicollet Property; (ii) Ordinance No. 9, Series of 2003 of the Town of Vail,
Colorado; (iii) Ordinance No. 10, Series of 2003 of the Town of Vail, Colorado; (iv) any and all
parking disputes, claims or allegations by and among the parties hereto concerning the Nicollet
Property and the 9 Vail Road Property arising prior to the date hereof; and (v) all other matters,
directly or indirectly, related to any of the matters referenced above. Notwithstanding the
foregoing, the parties hereto specifically agree that the foregoing releases shall not, in any way,
affect their obligations and duties as specifically contained in this Agreement, in the Exhibits or
as to be required by Ordinance Nos. 9 and 10, Series 2003, or pursuant to any Town of Vail
general land use code or regulation. As such, the parties hereto specifically retain and preserve
- 9 -
any claims arising out of a breach of this Agreement, the Exhibits or Ordinance Nos. 9 and 10,
Series 2003.
9. 9 Vail Road, �,,,�o��.v,. � .;+�, ;*� �,,,.,,.a o �i,,.,o��� , ,,;� „ o � i�„ *�.v +;,iio�� o.,�o.,.
, , , , , , does
hereby release and forever discharge both Doramar Corporation, f/k/a DAB Investments, Inc.,
d/b/a Chateau Vail Holiday Inn, together with its shareholders, directors, officers, employees,
successors, assigns, agents, accountants, consultants, and attorneys, and Daymer Corporation,
together with its shareholders, directors, officers, employees, successors, assigns, agents,
accountants, consultants and attorneys from any and all claims, demands, debts, causes of
actions, suits, express or implied warranties, covenants, contracts, agreements and promises
whatsoever, arising prior to the date hereof, that 9 Vail Road, +^��°*'�°r ��,;*� ;*° �^�r�a °m^'^��°°�,
> > , � ,
„�„�*.,,,+� .,,,a �+�,,,.,,o..� ever had, now have or may hereafter have against either poramar
Corporation, f/k/a DAB Investments, Inc., d/b/a Chateau Vail Holiday Inn, together with its
shareholders, directors, officers, employees, successors, assigns, agents, accountants, consultants,
and attorneys, and Daymer Corporation, together with its shareholders, directors, officers,
employees, successars, assigns, agents, accountants, consultants and attorneys by reason of any
matter or thing, known or unknown, arising prior to the date hereof, including but not limited to
those arising out of or in connection with (i) the operation, management and functioning of the
Nicollet Property and the 9 Vail Road Property; (ii) the entitlements requested by Nicollet and to
be approved by Vail in connection with the redevelopment of the Nicollet Property; (iii)
- 10 -
Ordinance No. 9, Series 2003 of the Town of Vail, Colorado; (iv) Ordinance No. 10, Series 2003
of the Town of Vail, Colorado; (v) the June 10, 1991 Easement Agreement, filed of record on
August 28, 1991 in the office of the Eagle County Recorder, State of Colorado in Book 561 at
Page 54; (vi) 9 Vail Road's involvement with the Nicollet Property, in any capacity, prior to the
date of this Agreement; (vii) any and all historical land uses by and between the 9 Vail Road
Property and the Nicollet Property; (viii) any and all historical parking agreements,
understandings, commitments and/or promises, whether in writing or oral, concerning the
Nicollet Property or the 9 Vail Road Property; (ix) the actual use by 9 Vail Road of the Nicollet
Property for parking, access, ingress and egress, prior to the date of this Agreement; (x) the actual
or perceived dependence of 9 Vail Road on parking, access, ingress and egress to the Nicollet
Property for any purpose whatsoever; (xi) the historical conduct of any past or current owner of
either the Nicollet Property or the 9 Vail Road Property; (xii) the actual or perceived reliance of 9
Vail Road on past or historical rights to use the Nicollet Property far parking access, ingress and
egress; (xiii) any and all property right claims against the Nicollet Property or the 9 Vail Road
Property for any use, enjoyment or other purpose by either 9 Vail Road or any of its past, current
or future unit owners or by any past, current or future owner of the Nicollet Property; (xiv) any
and all property use claims against the Nicollet property or the 9 Vail Road Property for the use,
enjoyment or other purpose by either 9 Vail Road or any of its past, current or future unit owners
or by any past, current or future owner of the Nicollet Property; (xv) any and all past approvals
and/or entitlements, considered denied or approved by any governmental body (including,
without limitation, Vail) concerning either the 9 Vail Road Property or the Nicollet Property;
- 11 -
(xvi) any and all parking disputes, claims or allegations by and through the parties hereto
concerning the Nicollet Property and the 9 Vail Road Property; (xvii) the actual use by any
current or past owner of the Nicollet Property of the 9 Vail Road Property for access, ingress and
egress for trash removal; (xviii) any and all other matters, directly or indirectly, related to any of
the matters referenced above. Notwithstanding the foregoing, the parties hereto specifically agree
that the foregoing releases shall not, in any way, affect their obligations and duties as specifically
contained in this Agreement, in the Exhibits or as to be required by Ordinance Nos. 9 and 10,
Series 2003, or pursuant to any Town of Vail general land use code or regulation. As such, the
parties hereto specifically retain and preserve any claims arising out of a breach of this
Agreement,the Exhibits or Ordinance Nos. 9 and 10, Series 2003.
10. It is the specific intent and purpose of this Agreement to release and farever
discharge any and all claims, demands, debts and causes of action of any kind or nature
whatsoever, whether known or unknown, asserted or unasserted, expressed or implied, whether
specifically mentioned or not, which may exist or might be claimed to exist at or prior to the date
of this Agreement, (except as to any claims arising out of a breach of this Agreement, the
Exhibits or Ordinance Nos. 9 and 10, Series 2003) and the parties hereto hereby specifically
waive any right to assert that any claims or alleged claims have been, through oversight or error,
or intentionally or unintentionally, omitted from this Agreement. Notwithstanding anything to
the contrary herein, the Vail release set forth in paragraph 8 above shall be and is specifically
limited in scope and effect to those specific issues and claims set forth therein. It is not the
intention of the parties hereto (nor the purpose of the Vail release) that the Vail release should
- 12 -
provide a "blanket" or "global" release to any party hereto, regardless of the fact that those same
parties did intend and did provide Vail with a full, complete, blanket and global release of all
claims.
11. Nicollet and 9 Vail Road hereby acknowledge and agree that all prior agreements,
contracts and understandings (whether written or oral) by and between them shall as of the date
of this Agreement be of no further force and effect and be deemed terminated in all respects.
12. The parties hereto represent, covenant and warrant that none of the rights, claims
ar causes of action covered by this Agreement or the Exhibits has heretofore been assigned,
subrogated, given to someone else or otherwise transferred and that the parties are not aware of
any attempt by a third party or entity not a party to this Agreement to assert a right, claim, cause
of action or lien with respect to any of the rights, claim or causes of actions released and
discharged under the foregoing paragraphs of this Agreement. Further, 9 Vail Road represents,
covenants and warrants to Nicollet and Vail that it has no knowledge whatsoever of any actual or
threatened claims, allegations, disputes, demands, contracts, agreements or other understandings
by any past or current unit owner of 9 Vail Road against Nicollet and/or Vail relating to the
subject matter of this Agreement and/or the Exhibits.
13. 9 Vail Road represents, covenants and warrants to Nicollet and Vail that it (as the
Association) controls and possesses each and every claim, right or benefit releG�sed �t � �'ail
ltc�aci 1�ereunc3er
�
• , � , > >
> > > >
- 13 -
�,.�,;,,,. ,. ,T�,��, ,;�o„��� „�.�;,�.,�;,.�� „a�,,,- i;�t,;�;+;o�. I�u��tl�er��s-��, 9 Vail Road hereby
irrevocably agrees to indemnify and hold harmless �a�k-Nicollet, together with its shareholders,
directors, officers, employees, successors, assigns, agents, accountants, consultants, and
attorneys, � , , , ,
^r° �^°„+� ���' ����„'*��*�, from and against any and all claims, demands, debts, causes of
action, suits, covenants, contracts, agreements, attorneys' fees and costs and promises brought or
threatened to be brought by any past, current or future unit owner (to the fullest extent permitted
by law), employee, board member, successor, assign, agent, accountant, consultant or attorney of
9 Vail Road relating, directly or indirectly, to: (ij �ast t�t;ce>s ri�l�ts tt? }�sarltin� c>n t1�e �icc�llet
�'t•a�e;�°t�'; a�7c� {ii) }���St �aarl,il�� �st ri�l�ts on the. R�ct?11L.t ['rt���e��ty a5 ^�., ^'�;ri,, ,a°w,^�,', ��h*,
� , > > , > >
covered in����rt by and the c��'��°^* m^++°r ^�+'�° release from 9 Vail Road to Nicollet as contained
in paragraph 7 above.
14. The parties hereto hereby acknowledge and agree that this Agreement, together
with the Exhibits are a compromise of disputed claims, and that the execution of this Agreement
and the Exhibits is not to be construed as an admission of liability on the part of any of the
parties hereto, and that such parties expressly deny said liability therefor and intend merely to
avoid litigation with respect to such claims.
15. The parties hereto hereby acknowledge and agree that they have been represented
by legal counsel of their choice in this matter and during the negotiations leading up to this
Agreement and the Exhibits. The parties hereto further acknowledge and agree that they have had
- 14 -
an opportunity to review, consider and be advised by their legal representatives regarding the
terms hereof and the binding effect of this Agreement and the Exhibits prior to the execution of
this Agreement and the Exhibits. Further, the parties hereto represent that they will each be
responsible far their own attorneys' fees and costs incurred herein and no party hereto shall be
entitled to, nor seek reimbursement of their respective attorneys' fees and costs from any other
party hereto.
16. This Agreement shall inure to and bind the parties hereto, their respective heirs,
legal representatives, successors, assigns and anyone claiming by, through or under said parties.
17. This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but such counterparts shall together
constitute one and the same instrument. When a counterpart is executed by each party and all
Exhibits are executed by each party, this Agreement shall then be binding upon all parties hereto.
18. This Agreement, together with the Exhibits and Ordinance Nos. 9 and 10, Series
2003, Town of Vail, Colorado, comprise the entire agreement between the parties hereto and no
promise, inducement or representation other than herein and therein set forth has been made,
offered ar agreed upon. This Agreement, together with the Exhibits supersede all prior
agreements, understandings or commitments (whether written ar oral) concerning or relating to
the subject matter of this Agreement and/or the Exhibits and the parties hereto acknowledge that
the terms hereof are contractual in nature and not mere recitals.
19. 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
- 15 -
Agreement and Exhibits attached hereto or a breach of this Agreement or Exhibits attached
hereto 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 thereo£ The
parties hereto further acknowledge and agree that the arbitration shall be held in the State of
Colorado and that the arbitrator(s) may grant any remedy or relief, consistent with Colorado law,
that the arbitrator(s) deems just and equitable and within the scope of this Agreement and/or the
Exhibits including, but not limited to, summary judgment, damages and specific performance of
this Agreement and/or the Exhibits. The parties hereto hereby agree that the arbitrator(s) shall, in
the award, have the authority to assess damages or fees, expenses and compensation (including
but not limited to, reasonable attorneys' fees and costs) in favor of the prevailing party in the
arbitration. Each party shall also have the right to apply for and to obtain interim judicial relief
pending the results of the arbitration.
20. The parties hereto agree that this Agreement and the Exhibits attached hereto shall
be governed in all respects by the laws of the State of Colorado.
21. The recitals contained at the beginning of this Agreement and the Exhibits
identified in this Agreement and attached hereto are specifically incorporated herein by reference
and made an integral part of this Agreement.
22. No amendment of any provision of this Agreement or the Exhibits attached hereto
shall be valid and binding unless the same shall be in writing and signed by all of the parties to
such agreements.
- 16 -
23. 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
hereto 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.
24. The parties hereto specifically acknowledge and agree that the parties hereto have
negotiated and participated equally in the drafting of this Agreement and the Exhibits attached
hereto. In the event an ambiguity or question of intent or interpretation arises, this Agreement
and the Exhibits attached hereto shall be construed as if drafted equally by the parties hereto and
no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement or the Exhibits attached hereto.
25. 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 9 Vail
Road and Nicollet are as follows:
9 Vail Road: Holiday House Condominium Association,
d/b/a 9 Vail Road Condominiums
P. O. Box 5733
Vail, CO 81658-5733
Attention: Association President
Phone: (970) 479-7100/Fax: (970) 476-8852
- 17 -
Nicollet: Nicollet Island Development Co.
600 Foshay Tower
821 Marquette Avenue South
Minneapolis, MN 55402
Attention: General Counsel
Phone: (612) 332-1500 /Fax: (612) 332-2428
26. The parties hereto acknowledge and agree that this Agreement and the Exhibits
attached hereto shall be fully and completely executed by the appropriate parties and placed into
Escrow with Land Title Guarantee Company, as Escrow Agent, prior to the scheduled second
reading of Ordinance Nos. 9 and 10, Series 2003, on October 7, 2003.
IN WITNESS WHEREOF, the parties hereto have executed this Compromise and
Release Agreement effective as of the t;`�' day of October 2003.
NICOLLET ISLAND DEVELOPMENT CO.,
a Minnesota corporation,
By: Thomas J. Brink
Its: Vice President and General Counsel
HOLIDAY HOUSE CONDOMINIUM ASSOCIATION,
d/b/a 9 VAIL ROAD CONDOMINIUMS,
a Colorado corporation
By:
Its:
- 18 -
By:
Its:
TOWN OF VAIL,
a Colorado
By:
Its:
- 19 -
:
_ �a,v� / t 5
G ��"s.y�
� ���
COMPROMISE AND RELEASE AGREEMENT
� � � i5 � ��
THIS COMPROMISE AND RELEASE AGREEMENT ("AgreemenY') is entered
into as of the date set forth below between Nicollet Island Development Co. ("NicolleY'), --���r fOG�tTj�
Holiday House Condominium Association, d/b/a 9 Vail Road Condominiums ("9 Vail Road")
and the Town of Vail("Vail").
WHEREAS, Nicollet is a party to a purchase and sale agreement with Daymer
Corporation for the assumption of Daymer Corporation's purchase agreement with Doramar
Corporation, f/k/a DAB Investments, Inc., d/b/a Chateau Vail Holiday Inn for the purchase of
certain real property located in the Town of Vail,County of Eagle, State of Colarado(commonly
known as the Chateau Vail); and Nicollet is a parly to a purchase and sale agreement with
Moellenrine Land Company,LLC for the purchase of certain real property located in the Town of
Vail, County of Eagle, State of Colorado (commonly known as the Alpine Standard), both
properties are more fully and particularly described in Exhibit "A"attached hereto (and shall be
jointly referred to herein as the"Nicollet Property");
WHEREAS, 9 Vail Road is the association which represents each unit owner, which in
turn are the owners of that certain real property located in the Town of Vail, County of Eagle,
State of Colorado, as more fully and particularly described on Exhibit "B" attached hereto ("9
Vail Road Property");
WHEREAS,Nicollet is currently requesting and pursuing certain entitlements from Vail
in connection with the Nicollet Property and those entitlements are cunently contained in
Ordinance Nos. 9 and 10, Series 2003 of the Town of Vail, Colorado, which Ordinances are set
for final approval by the Town Council on October 7,2003;
WHEREAS, in connection with the entitlement approval process and as a condition of
approval Vail has required that Nicollet provide for the relocation of four (4) existing surface
parking stalls located on the 9 Vail Road Property to a different location on the 9 Vail Road �
IProperty and has required certain unspecified parking rights whose current location on the
Nicollet Property is uncertain;
WHEREAS,in connection with the entitlement approval process,9 Vai]Road has made
certain claims and allegations concerning the occupancy of air space above the Nicollet Property
and access and certain unspecified parking rights whose location on the Nicollet Property is
uncertain;
WHEREAS,Nicollet has agreed to the relocation of the four(4)existing surface parking
stalls located on the 9 Vail Road Property and to parking rights for six (6) vehicles on the
Nicollet Property, however, Nicollet disputes and specifically denies that 9 Vail Road has any �G
rights,claims or privileges to any access or parking rights on the Nicollet Property;and
WHEREAS, all of the claims, allegations and Vail requirements made, asserted and/or
required by the parties hereto have been fully compromised and settled and the parties hereto
have agreed to release any and all claims that they may have agains�ch o'_ ther pursu�t to th��' � �/J
,._�;r�; V � J'�.
express terms of this Agreement. �G�- ��
U/h�`� �,� s/�,.�`�
r_ I� ��✓ r'`s, � ll��
� o 'f fi,f- �
-2- � / //iti / �O' /�n �
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�Y�
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�/�n�6 �^ y rt r'Z
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(.(��'J''�'�'r
����
NOW, THEREFORE, in consideration of the sum of one dollar and other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged by all of the
parties,the parties hereto hereby agree as follows:
1. Contemporaneous with the execution of this Agreement by all of the parties
hereto,Nicollet and 9 Vail Road shall each execute the Air Space Easement Agreement in form
and content identical to Exhibit "C" attached hereto and deliver said fully executed Air Space
Easement Agreement to the Escrow Agent (as defined below) to be held by the Escrow Agent
pursuant to the instructions of the parties hereto as contained in the Escrow Agreement (as
defined below).
2. Contemporaneous with the execution of this Agreement by all of the parties
hereto,Nicollet and 9 Vail Road shall each execute the Easement Agreement in form and content
identical to Exhibit "D" attached hereto and deliver said fully executed Easement Agreement to
the Escrow Agent(as defined below)to be held by the Escrow Agent pursuant to the instructions
of the parties hereto as contained in the Escrow Agreement(as defined below).
3. Contemporaneous with the execution of this Agreement by all of the parties
hereto,Nicollet and 9 Vail Road shall each execute the Construction ��rcenlent at�d Temporary
Construction Easement Agreement in form and content identical to Exhibit"E" attached hereto
and deliver said fully executed C'onsit���ctic�n .ar`reement and Temparary Construction Easement
Agreement to the Escrow Agent(as defined below)to be held by the Escrow Agent pursuant to
the instructions of the parties hereto as contained in the Escrow Agreement(as defined below).
-3 -
4. Contemporaneous with the execution of this Agreement by all of the parties
hereto,Nicollet and 9 Vail Road shall each execute the Termination of Easement Agreement in
form and content identical to Exhibit "F" attached hereto and deliver said fully executed
Termination of Easement Agreement to the Escrow Agent(as defined below) to be held by the
Escrow Agent pursuant to the instructions of the parties hereto as contained in the Escrow
Agreement(as defined below).
5. Contemporaneous with the execution of this Agreement by all of the parties
hereto, Nicollet and 9 Vail Road shall each execute the escrow agreement in form and content �
identical to Exhibit "G" attached hereto (the "Escrow AgreemenY') with Land Title Guarantee
Company,as escrow agent(the"Escrow AgenY'). C�� W � � �� � 6 A'�� ry
�
6. Nicollet,together with its sharehol rs, directors, officers,employees, successors, ��V r�'� �� � � �/
,�� a
assigns, agents, accountants, consultants, d attorneys, does hereby release and forever ____
Deleted:,together with itc board, �
discharge both 9 Vail Roac� and Vail, together with its elected and appointed officials, � e��oyees,����5ors,a55��5,ag�a�, I
.. __. _ _.. .. .._ . ._ __. .. .. . .... . .. _... _ .. .. .... .. . _ . . . .... . ._ .-.. _ ,"� accountancs,consultants,and a meys, '
employees, successors, assigns, agents and consultants from any and all claims, demands, debts, ��v v
causes of actions, suits, express or implied warranties, covenants, contracts, agreements, ��'�Aw���
�r""/
easements and promises whatsoever, arising prior to the date hereof, that Nicollet,together with +�
r- �
its shareholders, directors, officers, employees, successors, assigns, agents, accountants,
f ___.____
,1 Deleted:,together with its board, �
consultants, and attorneys, ever had, now have or may hereafter have against either 9 Vail Roac� , I employees,successors,as5��s,agenu, i
�accountants,consultants,and attomeys, �
or Vail, together with its elected and appointed officials, employees, successors, assigns, agents
and consultants by reason of any matter or thing, known or unknown, arising prior to the date
hereof, inciuding but not limited to those arising out of or in connection with (i) the operation,
-4-
management and functioning of the Nicollet Property and the 9 Vail Road Property; (ii) the
entitlements requested by Nicollet and to be approved by Vail in connection with the
redevelopment of the Nicollet Properiy; (iii) Ordinance No. 9, Series 2003 of the Town of Vail,
Colorado; (iv) Ordinance No. 10, Series 2003 of the Town of Vail, Colorado; (v) the June 10,
1991 Easement Agreement,filed of record on August 28, 1991 in the office of the Eagle County
Recorder, State of Colorado in Book 561 at Page 54; (vi) 9 Vail Road's involvement with the
Nicollet Property,in any capacity,prior to the date of this Agreement; (vii)any and ail historical
land uses by and between the 9 Vail Road Property and the Nicollet Property; (viii) any and all
historical parking agreements,understandings,commitments and/or promises,whether in writing
or oral, concerning the Nicollet Property or the 9 Vail Road Property; (ix) the actual use by 9
Vail Road of the Nicollet Property for parking,access,ingress and egress,prior to the date of this
Agreement; (x) the actual or perceived dependence of 9 Vail Road on parking, access, ingress
and egress to the Nicollet Property for any purpose whatsoever;(xi)the historical conduct of any
past or current owner of either the Nicollet Property or the 9 Vail Road Property; (xii)the actual
or perceived reliance of 9 Vail Road on past or historical rights to use the Nicollet Property for
parking access, ingress and egress; (xiii) any and all property right claims against the Nicollet
Property or the 9 Vail Road Properiy for any use, enjoyment or other purpose by either 9 Vail
Road or any of its past, current or future unit owners or by any past, current or future owner of
the Nicollet Property; (xiv)any and all property use claims against the Nicollet Property or the 9
Vail Road Properiy for the use, enjoyment or other purpose by either 9 Vail Road or any of its
past, current or future unit owners or by any past, current or future owner of the Nicollet
-5-
Property;(xv) any and ail past approvals and/or entitlements, considered,denied or approved by
any governmental body (including, without limitation, Vail) concerning either the 9 Vail Road
Properiy or the Nicollet Property;(xvi)any and all parking disputes,claims or allegations by and �
through the parties hereto concerning the Nicollet Property and the 9 Vail Road Property; (xvii) �i��^��r/�
the actual use by any current or past owner of the Nicollet Property of the 9 Vail Road Property /
for access, ingress and egress for trash removal; and(xviii) any and all other matters, directly or
indirectly, related to any of the matters referenced above. Notwithstanding the foregoing, the
parties hereto specifically agree that the foregoing releases shall not, in any way, affect their
obligations and duties as specifically contained in this Agreement, in the Exhibits or as to be �W
required by Ordinance Nos. 9 and 10, Series 2003, or pursuant to any Town of Vail general land
use code or regulation. As such, the parties hereto specifically retain and preserve any claims
arising out of a breach of this Agreement,the Exhibits,or Ordinance Nos.9 and 10,Series 2003. � ____^
--,
� Deleted:,together with its board
7. 9 Vail Roa does hereb release and forever discharge both Nicollet, together - � (
I employees,umt owners(to the full t
�_ ..�. -�- �� - - -- - - -- - - � extent permitted by law),successor,
_ _.. .. .. _ . ._.. _... .... .. _.. .. _ .. ... .. .... .._ .
� assi�s,agents,accountants,consu anis,
with its shareholders, directors, officers, employees, successors, assigns, agents, accountant � and attorneys_
consultants,and attorneys, and Vail,together with its elected and appointed officials,employe ,
successors, assigns, agents and consultants from any and all claims, demands, debts, causes f
actions, suits, express or implied warranties, covenants, contracts, agreements and promis
Deleted:,together with iu board, �
whatsoever, arising prior to the date hereof, that 9 Vail Roac� ever had, now have or may � �al°yees,°°if owners([o the fullest
I - - - .- .. - - - � extent pennitted by law),successors, �
: assigus,agents,accountan[s,consultants, i
hereafter have against either Nicollet, together with its shareholders, directors, officers, ; ana an�ey5, _
employees,successors, assigns, agents, accountants, consultants, and attorneys, or Vail, together
with its elected and appointed officials,employees,successors,assigns,agents and consultants by
-6-
�
G����'�
reason of any matter or thing, known or unlrnown, arising prior to the date hereof, including but
not limited to those arising out of or in connection with i the o eratio� age r�and
omn e i d ? � �
by-�Fies�iet-at�to be approved by Vail in connection with the redevelopment o e Nico�
pr�„P.+.,• �;;;� n.,�inance No. 9, Series 2003 of the Town of Vail, Colorado; (�j Ordinance No. �r,lj
�jG � �
10, Series 2003 of the Town of Vail,Colorado;�the June 10, 1991 Easement Agreement,filed
of record on August 28, 1991 in the office of the Eagle County Recorder, State of Colorado in
Book 561 at Page 54;�9 Vail Road's involvement with the Nicollet Property,in any capacity,
prior to the date of this Agreement; (v�any and all historical land uses by and between the 9
�
Vail Road Property and the Nicollet Property; (viii) any and all historical parking agreements,
understandings, commitments and/or promises, whether in writing or oral, conceming the
Nicollet Property or the 9 Vail Road Property; (ix)the actua]use by 9 Vail Road of the Nicollet
Property for parking,access,ingress and egress,prior to the date of this Agreement;(x)the actual
or perceived dependence of 9 Vail Road on�king, access, ingress and egress to the Nicollet
i
Property for any purpose whatsoever; (�the historical conduFt,of any past or current owner of
��/
either the Nicollet Property or the 9 Vail Road Property'jR�ij►the actual or perceived reliance of 9
/
Vail Road on pas�r historical rights to use the Nicollet Property for parking access, ingress and
b
egress;��any and all property nght claims against the Nicollet Property or the 9 Vail Road
Property for any use, enjoyment or other purpose by either 9 Vail Road or any of its past, current
or future unit owners or by any past, current or future owner of the Nicollet Property;/%�any
and all property use claims against the Nicollet Property or the 9 Vail Road Property for the use,
-7-
enjoyment or other purpose by either 9 Vail Road or any of its past,cunent or future unit owners
or by any past, cunent or future owner of the Nicollet Property;`(�) any and all past approvals
� _,
and/or entitlements, considered, denied or approved by any governmental body (including,
without limitation, Vail) concerning either the 9 Vail Road Property or the Nicollet Property;
(xvi) any and all parking disputes, claims or allegations by and through the parties hereto
concerning the Nicollet Property and the 9 Vail Road Property; (xvii) the actual use by any
current or past owner of the Nicollet Property of the 9 Vail Road Properiy for access,ingress and
egress for trash removal;and��any and all other matters,directly or indirectly,related to any V 1�
of the matters referenced above. Notwithstanding the foregoing, the parties hereto specifically
agree that the foregoing releases shall not, in any way, affect their obligations and duties as
specifically contained in this Agreement,in the Exhibits or as to be required by Ordinance Nos. 9
df
and 10, Series 2003,pursuant to any Town of Vail general land use code or regulation. As such,
the parties hereto specifically retain and preserve any claims arising out of a breach of this
Agreement,the Exhibits or Ordinance Nos.9 and 10, Series 2003.
8. Vail, together with its elected and appointed officials, employees, successors,
assigns,agents, and consultants does hereby release and forever discharge both Nicollet,together
with its shareholders, directors, officers, employees, successors, assigns, agents, accountants,
�._�._, _
, Deleted:,together with its boazd,
consultants, and attorneys, and 9 Vail Roac�from any and all claims, demands, debts C3US0S Of ' employees,su���5ors,ass��5,a���s,
.._. .. .._. . .._ _ _. .. .... .. __ _ _. .. ..... .. .... . __ .. .p. .... .. . .. .. � accoun[ants.consultants and attomeys �
actions, suits, express or implied warranties, covenants, contracts, agreements and promises
whatsoever, arising prior to the date hereof, that Vail, together with its elected and appointed
officials, employees, successors, assigns, agents and consultants ever had, now have or may
-8-
hereafter have against either Nicollet, together with its shareholders, directors, officers, ___ ___
, �Deleted:,tngether with its board, I
I employees successars assigns agents accountants consultants and attorneys and 9 Vail Roac�,_- � � employees,Su���SOrs,8s5;�s,agents, �
> > > > � ' ' � accountanu,coosultauts and attomeys �
�� ,—J
by reason of any matter or thing,known or unknown, arising out of or in connection with(i)the
entitlements requested by Nicollet and to be approved by Vail in connection with the
redevelopment of the Nicollet Property;(ii)Ordinance No.9,Series of 2003 of the Town of Vail,
Colorado; (iii)Ordinance No. 10, Series of 2003 of the Town of Vail, Colorado; (iv)any and all
parking disputes, claims or allegarions by and among the parties hereto concerning the Nicollet
Property and the 9 Vail Road Property arising prior to the date hereof; and(v) all other matters,
directly or indirectly, related to any of the matters referenced above. Notwithstanding the
foregoing, the parties hereto specifically agree that the foregoing releases shall not, in any way,
affect their obligarions and duties as specifically contained in this Agreement, in the Exhibits or
as to be required by Ordinance Nos. 9 and 10, Series 2003, or pursuant to any Town of Vail
general land use code or regulation. As such, the parties hereto specifically retain and preserve
any claims arising out of a breach of this Agreement, the Exhibits or Ordinance Nos. 9 and 10,
Series 2003.
rDeleted:,toge[her with its board,
9. 9 Vail Roac�, does hereby_ release and forever discharge both Doramar enm�oyees,u°it owners(to the fulles[
� - - - - - - - - - -- - -- - - - - - - - - -- - - -- -- - - - - -- - - - - - - - - - - extent permitted by law),successors,
assigus,agen[s,accountants,consultan[s
Corporation, f/k/a DAB Investments, Inc., d/b/a Chateau Vail Holiday Inn, together with its and attomeys _ �
shareholders, directors,officers,employees,successors,assigns,agents,accountants,consultants,
and attorneys, and Daymer Corporation, together with its shareholders, directors, officers,
employees, successors, assigns, agents, accountants, consultants and attorneys from any and all
claims, demands, debts, causes of actions, suits, express or implied warranties, covenants,
-9-
������
DelEted:,together with its board,
contracts, agreements and promises whatsoever, arising prior to the date hereof,that 9 Vail Roacj, , ��Ployees,unit owners(to the fullest �
I extent pennitted by law),successors,
i assi�s,agents,accountan[s,consultants
ever had, now have or may hereafter have against either poramar Corporation, f/k/a DAB ��d attomeys � __
Investments, Inc., d/b/a Chateau Vail Holiday Inn, together with its shareholders, directors,
officers, employees, successors, assigns, agents, accountants, consultants, and attorneys, and
Daymer Corporation, together with its shareholders, directors, officers, employees, successors,
assigns,agents,accountants,consultants and attorneys by reason of any matter or thing,known or
unknown, arising prior to the date hereof, including but not limited to those arising out of or in
connection with(i)the operation,management and functioning of the Nicollet Property and the 9
Vail Road Property; (ii) the entitlements requested by Nicollet and to be approved by Vail in
connection with the redevelopment of the Nicollet Property;(iii)Ordinance No. 9,Series 2003 of
the Town of Vail, Colorado; (iv) Ordinance No. 10, Series 2003 of the Town of Vail, Colorado;
(v) the June 10, 1991 Easement Agreement, filed of record on August 28, 1991 in the office of
the Eagle County Recorder, State of Colorado in Book 561 at Page 54; (vi) 9 Vail Road's
involvement with the Nicollet Property,in any capacity,prior to the date of this Agreement; (vii)
any and all historical land uses by and between the 9 Vail Road Property and the Nicollet
Property; (viii) any and all historical parking agreements, understandings, commitments and/or
promises, whether in writing or oral, concerning the Nicollet Property or the 9 Vail Road
Property; (ix)the actual use by 9 Vail Road of the Nicollet Property for parking, access, ingress
and egress,prior to the date of this Agreement; (x)the actual or perceived dependence of 9 Vail
Road on parking, access,ingress and egress to the Nicollet Property for any purpose whatsoever;
(xi) the historical conduct of any past or current owner of either the Nicollet Property or the 9
- 10-
Vail Road Properiy; (xii) the actual or perceived reliance of 9 Vail Road on past or historical
rights to use the Nicollet Property for parking access, ingress and egress; (xiii) any and all
property right claims against the Nicollet Property or the 9 Vail Road Property for any use,
enjoyment or other purpose by either 9 Vail Road or any of its past,current or future unit owners
or by any past, current or future owner of the Nicollet Property; (xiv) any and all property use
daims against the Nicollet property or the 9 Vail Road Property for the use, enjoyment or other
purpose by either 9 Vail Road or any of its past, cunent or future unit owners or by any past,
current or future owner of the Nicollet Property; (xv) any and all past approvals and/or
enritlements, considered denied or approved by any governmental body (including, without
limitation, Vai]) concerning either the 9 Vail Road Properiy or the Nicollet Property; (xvi) any
and all parking disputes, claims or allegations by and through the parties hereto concerning the
Nicollet Property and the 9 Vail Road Property;(xvii)the actual use by any current or past owner
of the Nicollet Properiy of the 9 Vail Road Property for access, ingress and egress for trash
removal; (xviii) any and all other matters, directly or indirectly, related to any of the matters
referenced above. Notwithstanding the foregoing, the parties hereto specifically agree that the
foregoing releases shall not, in any way, affect their obligations and duties as specifically
contained in this Agreement, in the Exhibits or as to be required by Ordinance Nos. 9 and 10,
Series 2003, or pursuant to any Town of Vail general land use code or regulation. As such, the
parties hereto specifically retain and preserve any claims arising out of a breach of this
Agreement,the Exhibits or Ordinance Nos. 9 and 10, Series 2003.
- 11 -
G� o�
. c� � � k�� � -
�� ;- � �� � G� �
10. It is the specific intent and purpose of this Agreement to rel e and forever `v
discharge any and all claims, demands, debts and causes of actio
whatsoe er, th wn or rted o rted, expres or i lied, w er
specifi men ' ed or t,which may exist or might e claimed to exist at or prior to the date /
of this Agreeme except as t claims rising of breach of is Agreement, t
i
Exhibits or Ordinance Nos. 9 and 10, Series 2003) and the parties hereto hereby specifically �•1
waive any right to assert that any claims or alleged claims have been,through oversight or error, �'��
� �
or intentionally or unintentionally, omitted from this Agreement. Notwithstanding anything to ��
the contrary herein, the Vail release set forth in paragraph 8 above shall be and is specifically t
`
limited in scope and effect to those specific issues and claims set forth therein. It is not the
intention of the parties hereto (nor the purpose of the Vail release) that the Vail release should
provide a"blanket"or"global"release to any party hereto,regardless of the fact that those same
parties did intend and did provide Vail with a full, complete, blanket and global release of all
claims.
11. Nicollet and 9 Vail Road hereby acknowledge and agree that all prior agreements,
contracts and understandings (whether written or oral)by and between them shall as of the date
of this Agreement be of no further force and effect and be deemed terminated in all respects.
12. The parties hereto represent, covenant and warrant that none of the rights, claims
or causes of action covered by this Agreement or the Exhibits has heretofore been assigned,
subrogated, given to someone else or otherwise transferred and that the parties are not aware of
any attempt by a third party or entity not a party to this Agreement to assert a right,claim, cause
- 12-
of action or lien with respect to any of the rights, claim or causes of actions released and
discharged under the foregoing paragraphs of this Agreement. Further, 9 Vail Road represents,
covenants and warrants to Nicollet and Vail that it has no knowledge whatsoever of any actual or �t
threatened claims, allegations, disputes, demands, contracts, agreements or other understandings 1 �
`
by any past or current unit owner of 9 Vail Road against Nicollet and/or Vail relating to the � �
� � � 1
subject matter of this Agreement and/or the Exhibits. � („ hG�
\ K/
13. 9 Vail Road represents,covenants and warrants to Nicollet and Vail that i s the \
Association) controls and possesses each and every claim, right or benefit relea�edJbv� 9 Vail _ r`� �_
/ � ,� Deleted:claimed or made by 9 Vail
Road her�undei� Furtl�er_ 9 Vail Road hereb irrevocabl a ees to indem�ify and hold harmless RoadtUroughouttheapp7ovalprocessof�
=- - - - - - -- - - - -- --- - y.. - - - - - -y- �- -- - - - - - - -- -- -- - - - - ' the Town of Vail's Ordinance Nos.9 and
� � [
/ 10,Series 2003,including but not Gmi ed
' ollet, together with its shareholders, directors, officers, em �yees, successors, assigns, ` • � �
to all claims demands easements,
coveuants,contracts,agreements and
promises related,direcdy or indirecdy to
agents, a ountants, consultants, and attorney�,from_and a ' st any and all claims,_demands,_ `. , Paz�g righr�,privileges,obligarions
and/or liabilities
debts, causes of 'on, suits, covenants, contracts, eements, attorneys' fees and costs and �Deleted:.a5 s��h _
�Deleted:boch
promises brought or threaten to be brou�y any past, current or future unit owner (to the ;Deleted:,and Vail,together with its �
� elected and appointed officials,
! employees,successors,assigns,agents
fullest extent permitted by law), em y , �oard member, successor, assign, agent, accountant, ; �a�ons„»r�, �
consultant or attorney of 9 ail Road relating, directly�andirectly, to: fi,l��asi access ii�hts to _
___._�
. _
�-...>"�__ Deleted: any claim,demand,debt,
al'}:Ill 4ri 1}le � O��el �1'Q�eTt ; aili� {11 85f Al'�lIl USe 1`I'r1tiS O71 t t . ' �7 ' P7'O l'l"I ry' cause of acrion,suit,covenant,easemenG �
— contract,ageement,promise,matter or
thing wlilch is
covered i:n a��t by and the�elease from 9 Vail Road to Nicollet as contained in paragraph 7 _ _ . oeieted:sub�e�t�a�orc�e
abo .
14. The parties hereto hereby acknowledge and agree that this Agreement, together
with the Exhibits are a compromise of disputed claims, and that the execution of this Agreement
and the Exhibits is not to be construed as an admission of liability on the part of any of the
- 13 -
parties hereto, and that such parties expressly deny said liability therefor and intend merely to
avoid litigation with respect to such claims.
15. The parties hereto hereby acknowledge and agree that they have been represented
by legal counsel of their choice in this matter and during the negotiations leading up to this
Agreement and the Exhibits.The parties hereto further acknowledge and agree that they have had
an opportunity to review, consider and be advised by their legal representatives regarding the
terms hereof and the binding effect of this Agreement and the Exhibits prior to the execution of
this Agreement and the Exhibits. Further, the parties hereto represent that they will each be
responsible for their own attomeys' fees and costs incurred herein and no party hereto shall be
entitled to, nor seek reimbursement of their respective attorneys' fees and costs from any other
party hereta
16. This Agreement shall inure to and bind the parties hereto, their respective heirs,
legal representatives,successors,assigns and anyone claiming by,through or under said parties.
17. This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but such counterparts shall together
constitute one and the same instrument. When a counterpart is executed by each party and all
Exhibits are executed by each pariy,this Agreement shall then be binding upon all parties hereto.
18. This Agreement, together with the Exhibits and Ordinance Nos. 9 and 10, Series
2003,Town of Vail, Colorado, comprise the entire agreement between the parties hereto and no
promise, inducement or representation other than herein and therein set forth has been made,
offered or agreed upon. This Agreement, together with the Exhibits supersede all prior
- 14-
agreements, understandings or commitments (whether written or oral) concerning or relating to
the subject matter of this Agreement and/or the Exhibits and the parties hereto aclrnowledge that
the terms hereof are contractual in nature and not mere recitals.
19. 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
Agreement and Exhibits attached hereto or a breach of this Agreement or Exhibits attached
hereto shall be resolved by arbitration administered by the American Arbitration Associarion
undet its Conshuction Industry Arbitrarion 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 arbitrator(s)may grant any remedy or relief,consistent with Colorado law,
that the arbitrator(s)deems just and equitable and within the scope of this Agreement and/or the
Exhibits including,but not limited to, summary judgment,damages and specific performance of
this Agreement and/or the Exhibits.The parties hereto hereby agree that the arbitrator(s)shall,in
the award, have the authority to assess damages or fees, expenses and compensation (including
but not limited to, reasonable attorneys' fees and costs) in favor of the prevailing party in the
arbitration. Each party shall also have the right to apply for and to obtain interim judicial relief
pending the results of the arbitration.
20. The parties hereto agree that this Agreement and the Exhibits attached hereto shall
be governed in all respects by the laws of the State of Colorado.
- 15-
21. The recitals contained at the beginning of this Agreement and the Exhibits
identified in this Agreement and attached hereto are specifically incorporated herein by reference
and made an integral part of this Agreement.
22. No amendment of any provision of this Agreement or the Exhibits attached hereto
shall be valid and binding unless the same shall be in writing and signed by all of the parties to
such agreements.
23. 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
hereto 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 hereo£
24. The parties hereto specifically acknowledge and agree that the parties hereto have
negotiated and participated equally in the drafting of this Agreement and the Exhibits attached
hereto. In the event an ambiguity or quesrion of intent or interpretation arises, this Agreement
and the Exhibits attached hereto shall be construed as if drafted equally by the parties hereto and
no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement or the Exhibits attached hereto.
- 16-
25. Notices or other communication hereunder shall be in writing and shall be sent
certified or registered mail, retum 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
fa�c numbers for notice hereunder by like notice to the other party. The notice addresses of 9 Vail
Road and Nicollet are as follows:
9 Vail Road: Holiday House Condominium Association,
d/b/a 9 Vail Road Condominiums
P.O.Box 5733
Vail,CO 81658-5733
Attention:Association President
Phone:(970)479-7100/Faac:(970)476-8852
Nicollet: Nicollet Island Development Co.
600 Foshay Tower
821 Marquette Avenue South
Minneapolis,MN 55402
Attention:General Counsel
Phone: (612)332-1500/Fax:(612)332-2428
26. The parties hereto acknowledge and agree that this Agreement and the Exhibits
attached hereto shall be fuliy and completely executed by the appropriate parties and placed into
Escrow with Land Title Guarantee Company, as Escrow Agent, prior to the scheduled second
reading of Ordinance Nos.9 and 10,Series 2003,on October 7,2003.
IN WITNESS WHEREOF, the parties hereto have executed this Compromise and -----
,l Deleted:_ j
-- . ._�:,__�.__—�.
Release Agreement effective as of the b`}'day of October 2003. , . Formatted
, 1
NICOLLET ISLAND DEVELOPMENT CO.,
- 17-
a Minnesota corporation,
By: Thomas J.Brink
Its: Vice President and General Counsel
HOLIDAY HOUSE CONDONIINIUM ASSOCIATION,
d/b/a 9 VAIL ROAD CONDOMINIUMS,
a Colorado corporation
. $Y�,
'� Its: . . ,
By:
Its:
TOWN OF VAIL,
a Colorado
By:
Its:
- 18-
6• V � �
�
F 3
Ordinance Nos. 9 and 10, Series 2003 of the Town of Vail, Colorado, which Ordinances are set
for final approval by the Town Council on October 7,2003;
WHEREAS, in connection with the entitlement approval process and as a condition of
approval Vail has required that Nicollet provide for the relocation of four (4) existing surface
parking stalls located on the 9 Vail Road Property to a different location on the 9 Vail Road �
IProperty and has required certain unspecified parking rights whose cuirent location on the
Nicollet Property is uncertain; � �/n, /' �S
WHEREAS,in connection with the entitleme approval process,9 Vail Road has made ��
certain cl i and Ile ations concerning the occ ancy of air space above the Nicollet Property n � �'Tr '�,s
��'��.�� ��L SS �
a ��P�c and certain u specified parking ghts whose location on the Nicollet Pro erty is �� — e
n I��'c�r! �� P b^i M1''� �e . 1 lil V'^'�f V1 tl�✓d
ncerta � � � V-�+� � d �� T�� �� "'I��.
������ �
WHEREAS,Nicollet has agreed to the relocation of the four(4)existing surface parking
stalls located on the 9 Vail Road Property and to parking rights for six (6) vehicles on the
Nicollet Property, however, Nicollet disputes and specifically denies that 9 Vail Road has any
rights,claims or privileges to any access or parking rights on the Nicollet Property;and
WHEREAS, all of the claims, allegations and Vail requirements made, asserted and/or
required by the parties hereto have been fully compromised and settled and the parties hereto
have agreed to release any and all claims that they may have against each other pursuant to the
express terms of this Agreement.
-2- 4
� � �► V►�j5 �P C�Q � -e �. �C'C �SS ��d '��r IC��.5 I'� 9�'1�' �T��
wh P
�,..�c,-eyl'�'s a r� Ovwi
�b � �%► �t� �1;Y� d -�a,. �n-1-e�-vs�'s h'�
.�,.s �,,,,ct a�e, -�►��,��Q� oo r^�a n-+ -�1 � -e�►-,-�S
q Y R v n�� ovrn 1 �,d. b q �
c� �d CAr--�'ro 1 � �,
,i
4. Contemporaneous with the execution of this Agreement by all of the parties
hereto, Nicollet and 9 Vail Road shall each execute the Termination of Easement Agreement in
form and content identical to Exhibit "F" attached hereto and deliver said fully executed
Termination of Easement Agreement to the Escrow Agent(as defined below) to be held by the
Escrow Agent pursuant to the inshuctions of the parties hereto as contained in the Escrow
Agreement(as defined below).
5. Contemporaneous with the execution of this Agreement by all of the parties
hereto, Nicollet and 9 Vail Road shall each execute the escrow agreement in form and content
identical to Exhibit "G" attached hereto (the "Escrow Agreement") with Land Title Guarantee
Company,as escrow agent(the"Escrow Agent").
6. Nicollet, together with its shareholders,directors,officers,employees, successors,
assigns, agents, accountants, consultants, and attorneys, does hereby release and forever
discharge both 9 Vail Roac� and Vail, to�ether with its elected and appointed officials, � " � , � ,
Deleted: ogeth with its board �i
I � employees su essors assigns,agenu
_ . _ _... . . . ... _ _ _ __.. .. _ .. _ .... ,' accountants,consultants,and attomeys,
l
J
employees, successors, assigns, agents and consultants from any and al] claims, demands, debts,
causes of actions, suits, express or implied warranties, covenants, contracts, agreements, �
�,
� p;S�y�''�
easements and promises whatsoever, arising prior to the date hereof, that Nicollet, together with `�n�) V��,�✓ "
��' Y�
its shareholders, directors, officers, employees, successors, assigns, agents, accountants, +�
Deleted:, ogether wit6 its board,
consultants, and attorneys, ever had, now have or may hereafter have against either 9 Vai] Roac� , emr�orees,successors,a55��as,agen �
accountan[s,consul[ants,and att eys, j
or Vail, together with its elected and appointed officials, employees, successors, assigns, agents �1,'r
and consultants by reason of any matter or thing, known or unknown, arising prior to the date ����r,,✓�"��
� �
hereof, including but not limited to those arising out of or in connection with (i) the operation, �Y^� � ��
��i
-4-
3
Property; (xv) any and all past approvals and/or entitlements, considered, denied or approved by
any govemmental body (including, without limitation, Vail) concerning either the 9 Vail Road
Property or the Nicollet Property; (xvi)any and all parking disputes,claims or allegations by and
through the parties hereto concerning the Nicollet Property and the 9 Vail Road Property; (xvii)
the actual use by any current or past owner of the Nicollet Property of the 9 Vail Road Property
for access, ingress and egress for trash removal; and(xviii) any and all other matters, directly or
indirectly, related to any of the matters referenced above. Notwithstanding the foregoing, the
parties hereto specifically agree that the foregoing releases shall not, in any way, affect their
obligations and duties as specifically contained in this Agreement, in the Exhibits or as to be
required by Ordinance Nos. 9 and 10, Series 2003,or pursuant to any Town of Vail general land
use code or regularion. As such, the parties hereto specifically retain and preserve any claims
�
arising out of a breach of this Agreement,the Exhibits,or Ordinance Nos.9 and 10, Series 2003. �
7. 9 Vail Roac�, does hereby release and forever discharge both Nicollet, together,, � � D�' 1°yees'°°'geowners�o�board,
( _ .. .. .. .. _ _ .._ .. .... .... .. .... .. .. ... . .. . . i extent pennitted by law),ISUCcessors,
Tass�gns,ageuts,accountants,consultants, I
with its shareholders, directors, officers, employees, successors, assigns, agents, accountants, �dattomeys _ _'J
consultants,and attomeys, and Vail,together with its elected and appointed officials, employees,
successors, assigns, agents and consultants from any and all claims, demands, debts, causes of
actions, suits, express or implied warranties, covenants, contracts, agreements and promises
Deleted:,together wi its board,
whatsoever, arising prior to the date hereof, that 9 Vail Roac� ever had, now have or may ,' "°P�°y�s,""'c o�,� to the fullest
- � extent pennitted by law�successors,
� assigns,agents,accountants,consultants,
hereafter have against either Nicollet, together with its shareholders, directors, officers, and attorneys, _�
employees, successors, assigns, agents, accountants, consultants, and attorneys, or Vail, together
with its elected and appointed officials,employees,successors,assigns,agents and consultants by
-6-
reason of any matter or thing, known or unknown, arising prior to the date hereof,including but
not limited to those arising out of or in connection withl�` ` d �,
� �
� /
, the entitlements requested
by Nicollet �in connection with�he redevelopment of the Nicollet
Property 'ii) rdinance No. 9, Series 2003 of he T wn of Vail, Colorado; iv) Ordinance No.
�i�) �
10, Series 2003 of the Town of Vail,Colorado�}�j the June 10, 1991 Easement Agreement,filed
of record on August 28, 1991 in the office of the Eagle County Recorder, State of Colorado in
Book 561 at Page 54; (v ' '
,
a e o is gree • (v�_~ --_a " --- - ' ' - g �
V �viii) any and all historical parking agreements, `
i
understandings, commitments and/or promises, whether in writing or oral, concerning the
Nicollet Property or the 9 Vail Road Property; (i�he actual use by 9 Vail Road of the Nicollet
Property for parking,access,ingress and egress,prior to the date of this Agreemer�(x)the actual
or perceived dependence of 9 Vail Road on parking, access, ingress and egress to the Nicollet
Property for any purpose whatsoever;
, 9 �(`C'
,
v�
�;
,
r y any pas, curren
,
-7-
, nit owners
, ls
,
�
(xvi) any and all parking disputes, claims or allegations by and through the parties hereto
concerning the Nicollet Property and the 9 Vail Road Property; (xvii) the actual use by any
cunent or past owner of the Nicollet Property of the 9 Vail Road Property for access,ingress and
egress for trash removal;and(xvii�any and all other matters,directly or indirectly,related to any ��
of the matters referenced above,Notwithstanding the foregoing, the parties hereto specifically `A
l �\S �
agree that the foregoing releases shall not, in any way, affect their obligations and duties as ^ �
� 1
specifically contained in this Agreement,in th Exhibits or as to be required qy Or 'nance Nos.9 � �x
p r � �A��('b l.J t "���/N'�w�.dv1�{'S' 0� `
and 10, Series 2003, �4O any own of Vail general land use code or regulation, s such, ��
the parties hereto spec�'fically retain and preserve any claims arising out of a breach of this �
Agreement,the Exhibits or Ordinance Nos.9 and 10,Series 2003.
8. Vail, together with its elected and appointed officials, employees, successors,
assigns,agents,and consultants does hereby release and forever discharge both Nicollet,together
with its shareholders, directors, officers, employees, successors, assigns, agents, accountants, /�
—._^,
, Deleted:,together with its board, (
consultants, and attorneys, and 9 Vail Roac�,from any and all claims, demands, debts, causes of ' e�i°�es,5°"�5°`5,ass'�5,a��au,
__ .... . .._ .. _ ._ .._ _ ... .... _ . .. _ .. ..' � acwuntants,wnsultants and attomeys �
actions, suits, express or implied warranties, covenants, contracts, agreements and promises
whatsoever, arising prior to the date hereof, that Vail, together with its elected and appointed
officials, employees, successors, assigns, agents and consultants ever had, now have or may
-8-
. �/' .
hereafter have against either Nicollet, together with its shareholders, d�rectors, officers,
Deleted:,wgether witL its board, �_i
employees, successors, assigns, agents, accountants, consultants, and attorneys, and 9 Vail Roacl,_- �"�i1°yees,S°°°�S°`S,aS5'�S,age°ts,
accountants,consultants and attomeys
by reason of any matter or thing,known or unknown, arising out of or in connection with(i)the
entitlements requested by Nicollet and to be approved by Vail in connection with the
redevelopment of the Nicollet Property;(ii)Ordinance No.9,Series of 2003 of the Town of Vail,
Colorado; (iii)Ordinance No. 10, Series of 2003 of the Town of Vail, Colorado;(iv)any and all
parking disputes, claims or allegations by and among the parties hereto concerning the Nicollet
Property and the 9 Vail Road Property arising prior to the date hereof; and(v)all other matters,
directly or indirectly, related to any of the matters referenced above. Notwithstanding the
foregoing, the parties hereto specifically agree that the foregoing releases shall not, in any way,
affect their obligations and duties as specifically contained in this Agreement, in the Exhibits or
as to be required by Ordinance Nos. 9 and 10, Series 2003, or pursuant to any Town of Vail
general land use code or regulation. As such, the parties hereto specifically retain and preserve
any claims arising out of a breach of this Agreement, the Exhibits or Ordinance Nos. 9 and 10,
Series 2003.
, � Deleted:,together with its board,
9. 9 Vail Roa does hereb release and forever dischar e both Doramar � I employees,unit owners(to the fullest
� -- - - -- - - -Y- - - - - - - - - --- - - - - - - -� - -- - - - ' � extent permitted by law),successors, I
� assigns,agents,accoun[ants,consuitants �
Corporation, f/Wa DAB Investments, Inc., d/b/a Chateau Vail Holiday Inn, together with its and attomeys__ )
shareholders, directors, officers,employees,successors,assigns,agents,accountants,consultants,
and attorneys, and Daymer Corporation, together with its shareholders, directors, officers,
employees, successors, assigns, agents, accountants, consultants and attorneys from any and all
claims, demands, debts, causes of actions, suits, express or implied warranties, covenants,
-9-
�`�
Deleted:,together with its board,�
I i employees,unit owners(to the fullest
contracts,agreements and promises whatsoever, arising prior to the date hereof,that 9 Vail Roac� - �
I extent permitted by law),successors,
� assi@ns,agents,accountants,consultants
ever had, now have or may hereafter have against either poramar Corporation, f/k/a DAB I andattomeys � ��
Investments, Inc., d/b/a Chateau Vail Holiday Inn, together with its shareholders, directors,
officers, employees, successors, assigns, agents, accountants, consultants, and attorneys, and
Daymer Corporation, together with its shareholders, directors, officers, employees, successors,
assigns,agents,accountants,consultants and attorneys by reason of any matter or thing,known or
unknown, arising prior to the date hereof, including but not limited to those arising out of or in
connection with(i)the operation,management and functioning of the Nicollet Property and the 9
Vail Road Property; (ii) the entitlements requested by Nicollet and to be approved by Vail in
connection with the redevelopment of the Nicollet Property;(iii)Ordinance No.9,Series 2003 of
the Town of Vail, Colorado; (iv)Ordinance No. 10, Series 2003 of the Town of Vail, Colarado;
(v) the June 10, 1991 Easement Agreement, filed of record on August 28, 1991 in the office of
the Eagle County Recorder, State of Colorado in Book 561 at Page 54; (vi) 9 Vail Road's
involvement with the Nicollet Property,in any capacity,prior to the date of this Agreement;(vii)
any and all historical land uses by and between the 9 Vail Road Property and the Nicollet
Property; (viii) any and all historical parking agreements, understandings, commitments and/or
promises, whether in wriring or oral, concerning the Nicollet Property or the 9 Vail Road
Property; (ix) the actual use by 9 Vail Road of the Nicollet Property for parking, access, ingress
and egress,prior to the date of this Agreement; (x)the actual or perceived dependence of 9 Vail
Road on parking, access, ingress and egress to the Nicollet Property for any purpose whatsoever;
(xi) the historical conduct of any past or current owner of either the Nicollet Properiy or the 9
- 10-
� �n(S 152—?' ! b(o —
10. It is the specific intent and purpose of this Agreement to release and forever
discharge any and all claims, demands, debts and causes of action of any kind or nature
whatsoever, whether known or unknown, asserted or unasserted, expressed or implied, whether
specifically mentioned or not,which may exist or might be claimed to exist at or prior to the date J.(�;
of this Agreement, (except as to any claims arising out of a breach of this Agreement, the �-1� „ �n
\ \O"'
�
Exhibits or Ordinance Nos. 9 and 10, Series 2003) and the parties hereto hereby specifically �,�J�
waive any right to assert that any claims or alleged claims have been,through oversight or enor,
or intentionally or unintentionally, omitted from this Agreement. Notwithstanding anything to
the contrary herein, the Vail release set forth in paragraph 8 above shall be and is specifically
limited in scope and effect to those specific issues and claims set forth therein. It is not the
intention of the parties hereto (nor the purpose of the Vail release) that the Vail release should
provide a"blankeY'or"global"release to any party hereto,regardless of the fact that those same
parties did intend and did provide Vail with a full, complete, blanket and global release of all
claims.
11. Nicollet and 9 Vail Road hereby acknowledge and agree that all prior agreements,
contracts and understandings (whether written or oral)by and between them shall as of the date
of this Agreement be of no further force and effect and be deemed terminated in all respects.
12. The parties hereto represent, covenant and warrant that none of the rights, claims
or causes of action covered by this Agreement or the Exhibits has heretofore been assigned,
subrogated, given to someone else or otherwise transferred and that the parties are not aware of
any attempt by a third party or entity not a party to this Agreement to assert a right, claim, cause
- 12-
of action or lien with respect to any of the rights, claim or causes of actions released and
discharged under the foregoing paragraphs of this Agreement. Further, 9 Vail Road represents,
covenants and wanants to Nicollet and Vail that it has no knowledge whatsoever of any actual or
threatened claims, allegations, disputes, demands, contracts, agreements or other understandings
by any past or current unit owner of 9 Vail Road against Nicollet and/or Vail relating to the
subject matter of this Agreement and/or the Exhibits.
13. 9 Vail Road represents,covenants and warrants to Nicollet and Vail that ' as the
Association) controls and possesses each and every claim, right or benefit r ased bv 9._Vail
Deleted:claimed or made by 9 Vail
Rc�ad her�undei:, F�rrtl�er_ 9 Vail Road hereb irrevocabl a ees to i mni 321d I101(1 IISTCI11eS5 Roadtluoughout[heapprovalprocessof
Y-- - y- �-- - - - - - -�'- - -- - - - - - --- - -' , '
- - - - - - - - - - - - tLe Town of Vail s Ordwance Nos.9 and
I 10,Series 2003,including but not limited
,Nicollet, together with its shareholders, directors, office , employees, successors, assigns, ` to,�i��a�,a�a�,�S�a,�u,
_ ...
_ _ . _ _
, ' covenau ,contrac s,agreemeuts an
;promises related,d'vecdy or indirecUy to .
a ents accountants consultants and attorne fro _ nd a ainst an _ and all claims,_demands, . , 'p�x�g a�bc5,privileges,obligations
g , , , Y�- - - �- -- - y
and/or liabilities
debts, causes of action, suits, covenants, co acts, agreements, attorneys' fees and costs and •. �eieted:As such ��_
Deleted:bo[h
promises brought or threatened to be rought by any past, current or future unit owner (to the ueieted:,and Vail,coge��W�cn�u
elected and appointed officials,
employees,successors,assigns,agents
fullest extent permitted by la , employee, board member, successor, assign, agent, accountant� and consultants,
consultant or attorne 9 Vail Road relating, directly or indirectly, to�(i1 nast access ii��hts to __
, i Deleted: any claim,demand,debt,
arkin on 1�icollet Pro ert�; and ii) �est arkin use riohts on the 1�icollet Pro ertv a ! causeofaction,SLL��,covenant,���c,
- I contract,ageemen[,promise,matter or
thing which is
cove i��3a��t by and the�-elease from 9 Vail Road to Nicollet as contained in paragraph 7 _. _ `peieted:sub��t�n�orme
above.
14. The parties hereto hereby acknowledge and agree that this Agreement, together
with the Exhibits are a compromise of disputed claims, and that the execution of this Agreement
and the Exhibits is not to be construed as an admission of liability on the part of any of the
- 13 -
4
agreements, understandings or commitments (whether written or oral) concerning or relating to
the subject matter of this Agreement and/or the Exhibits and the parties hereto acknowledge that
the terms hereof are contractual in nature and not mere recitals.
19. The parties hereto hereby acknowledge and agree th t�, ubject to the interim rights
v
noted belo ' y controversy or claim arising out of or related, directly or indirectly�to this
A eement and Exhibits att hed h eto or a breach of this Agreement or Exhibits attached
,0�►a``�h'a.► � ae��o•► �o,�. d� ��j'�S�
hereto�hall 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 arbitrator(s)may grant any remedy or relief,consistent with Colorado law,
that the arbitrator(s)deems just and equitable and within the scope of this Agreement andJor the
Exhibits including, but not limited to, summary judgment, damages and specific performance o
�0
this Agreement and/or the Exhibits. The parties hereto hereby agree that the arbitrator(s)s allAm
/I
the award, have the authority to assess damages or fees, expenses and compensation (including � )�ti�""e
but not lim'ted to, rc�3e attorneys' fees and costs) in favor of the prevailing party in the �
JN} s�Tir1 0�1.� h ave
arbitration. Each party shall also have the right to apply for and to obtain interim judicial relief
pending the results of the arbitration.
20. The parties hereto agree that this Agreement and the Exhibits attached hereto shall
be governed in all respects by the laws of the State of Colorado.
- 15-
25. 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 9 Vail
Road and Nicollet are as follows:
9 Vail Road: Holiday House Condominium Association,
d/b/a 9 Vail Road Condominiums
P.O.Box 5733
Vail,CO 81658-5733
Attention:Association President
Phone: (970)479-7100/Fax:(970)476-8852
Nicollet: Nicollet Island Development Co.
600 Foshay Tower
821 Marquette Avenue South
Minneapolis,MN 55402
Attention:General Counsel � `
Phone: (612)332-1500/Fax:(612)332-2428 �j��
'r--�°�� �.f�"
26. The parties hereto acknowledge and agree that this Agreement and the Exhibits
��. ��.e�✓1
attached hereto s111�r��t^be fu�lly and completely executed by the appropriate parties and placed into
Escrow with Land Title Guarantee Company, as Escrow Agent, prior to the scheduled second
reading of Ordinance Nos.9 and 10, Series 2003,on October 7,2003.
IN WITNESS WHEREOF, the parties hereto have executed this Compromise and De1��:_ --�
�--------�
Release A eement effective as of the - Fo�matted
_._�
gr' �*'day of October 2003. ,:� � '�
NICOLLET ISLAND DEVELOPMENT CO.,
- 17 -
�
Ordinance Nos. 9 and 10, Series 2003 of the Town of Vail, Colorado, which Ordinances are set
for final approval by the Town Council on October 7,2003;
WHEREAS, in connection with the entitlement approval process and as a condition of
approval Vail has required that Nicollet provide for the relocation of four (4) existing surface
parking stalls located on the 9 Vail Road Property to a different location on the 9 Vail Road •
Property and has required certain unspecified parking rights whose cutrent location on the
Nicollet Property is uncertain; (a 1/}2, r P�S
"T
WHEREAS,in connection with the enritleme approval process,9 Vail Road has made �2
certain cl i and ]le ations concerning the occ ancy of air space above the Nicollet Property n � �'T� 'n"r�s
yv��P�6�� r'b�'C�t SS i
a a��e.cc and certain u�specified parking ghts whose location on the Nicollet Pro erty is
`��PI�tr`� �� � r i 'L►-�t � . � i� v�'�+,r i��� o�+/�
ncert�F�'M�'N"` `- � � V-�t+� � d �� T�,✓�` � ��
'�, � � �.
WHEREAS,Nicollet has agreed to the relocation of the four(4)existing surface parking
stalls located on the 9 Vail Road Property and to parking rights for six (6) vehicles on the
Nicollet Property, however, Nicollet disputes and specifically denies that 9 Vail Road has any
rights,claims or privileges to any access or parking rights on the Nicollet Property;and
WHEREAS, all of the claims, allegations and Vail requirements made, asserted and/or
required by the parties hereto have been fully compromised and settled and the parties hereto
have agreed to release any and all claims that they may have against each other pursuant to the
express terms of this Agreernent.
-2-
h� e �, V►�IS 'PC��� $ � � CC t55 ��Q '��c r�C��f.� /'� 9A� + �'`
w P
,•�s•er��'r a.� ow�-i�b -1�lC )!i �!'� d;ri b -�i�, ,n-�I-e r�vs�'S b'�
� -�.,.s �►.,,d -afie -��,�,,.e,��e oo r^�an-+ -�I � -e�-�s
q Y R r h��- ov�n. , �
4 t- �^-d Uv r-�'r°�1�,� b� q ���
4. Contemporaneous with the execution of this Agreement by all of the parties
hereto,Nicollet and 9 Vail Road shall each execute the Termination of Easement Agreement in
form and content identical to Exhibit "F" attached hereto and deliver said fully executed
Termination of Easement Agreement to the Escrow Agent (as defined below) to be held by the
Escrow Agent pursuant to the instructions of the parties hereto as contained in the Escrow
Agreement(as defined below).
5. Contemporaneous with the execution of this Agreement by all of the parties
hereto, Nicollet and 9 Vail Road shall each execute the escrow agreement in form and content
identical to Exhibit "G" attached hereto (the "Escrow Agreement") with Land Title Guarantee
Company,as escrow agent(the"Escrow Agent").
6. Nicollet, together with its shareholders, directors,officers,employees,successors,
assigns, agents, accountants, consultants, and attorneys, does hereby release and forever
discharge both 9 Vail Roac� and Vail, together with its elected and appointed officials, - � � ` �� �
Deleted: geth 'th its boazd
I employees su cessors assigns,ageuts
_ _.. .. .... . ... _ _ .. .... .. .. .. ..... _ .. .. .. ... .. .. ... .... .. . _ . . _ __ _.. _ _ , accountants,consultants�and attomeYs, �
employees, successors, assigns, agents and consultants from any and all claims,demands, debts, �
causes of actions, suits, express or implied warranties, covenants, contracts, agreements, �
� ������s
easements and promises whatsoever, arising prior to the date hereof, that Nicollet,together with � � � ,I✓�
`.,�-�'� `�
its shareholders, directors, officers, employees, successors, assigns, agents, accountants, � _
DeletCd:, gether with its board,
I consultants, and attorneys, ever had, now have or may hereafter have against either 9 Vail Roac�, . � employees,successors,assigns,ag�
l accountants,consultants,and att eys,
or Vail, together with its elected and appointed officials, employees, successors, assigns, agents ���
and consultants by reason of any matter or thing, known or unknown, arising prior to the date �O���yr✓�'"��
� �
hereof, including but not limited to those arising out of or in connection with (i)the operation, �Y'^� t ��
���
-4-
Property; (xv) any and all past approvals and/or entitlements, considered, denied or approved by
any governmental body (including, without limitation, Vail) concerning either the 9 Vail Road
Property or the Nicollet Property;(xvi)any and all parking disputes,claims or allegations by and
through the parties hereto concerning the Nicollet Property and the 9 Vail Road Property; (xvii)
the actual use by any current or past owner of the Nicollet Property of the 9 Vail Road Property
for access, ingress and egress for trash removal; and(xviii) any and all other matters, directly or
indirectly, related to any of the matters referenced above. Notwithstanding the foregoing, the
parties hereto specifically agree that the foregoing releases shall not, in any way, affect their
obligations and duties as specifically contained in this Agreement, in the Exhibits or as to be
required by Ordinance Nos. 9 and 10, Series 2003,or pursuant to any Town of Vail general land
use code or regulation. As such, the parties hereto specifically retain and preserve any claims
�
arising out of a breach of this Agreement,the Exhibits,or Ordinance Nos.9 and 10,Series 2003.
Del2ted:,together 'th its board,
I 7. 9 Vail Roac� does hereby release and forever discharge both Nicollet, together,- , ��o�� , n u ,
_ .. .. ... .. .. . .. .... .. . _.. .. . . ... . . . __ _ ._. .._ � ran osic
loyees,unit owners to
extentpennitted by law) successors,
� assigns agents a Ys c ants �
with its shareholders, directors, officers, employees, successors, assigns, agents, accountants, ��d attomeys �
consultants,and attorneys, and Vail,together with its elected and appointed officials, employees,
successors, assigns, agents and consultants from any and all claims, demands, debts, causes of
actions, suits, express or implied warranties, covenants, contracts, agreements and promises
, DEleted:,together wi its boazd,
whatsoever, arising prior to the date hereof, that 9 Vail Roac�ever had, now have or may ' e'�y'�°y�s,"°'c o�� to the fullest�
I _ ... _ .._ ... _ __ .. � � extent pemtitted by law�successors,
� assigns,ageu[s,accountants,consultan[s,
hereafter have against either Nicollet, together with its shareholders, directors, officers, ��a atto�e�, _J
employees, successors, assigns, agents, accountants, consultants, and attorneys, or Vail,together
with its elected and appointed officials,employees,successors,assigns,agents and consultants by
-6-
. �
reason of any matter or thing, known or unknown, arising prior to the date hereof,including but
not limited to those arising out of or in connection with`'` ` " , d ��
� /
, the entitlements requested
by Nicollet �in connection with�he redevelopment of the Nicollet
Property 'ii) rdinance No. 9, Series 2003 of the T wn of Vail, Colorado; iv) Ordinance No.
;,) �
10,Series 2003 of the Town of Vail,Colorado• �June , asement A eement, filed
� �
of record on August 28, 1991 in the office of the Eagle County Recorder, State of Colorado in
Book 561 at Page 54; (v ' ' ' ,
� a e o �s gree • (�` - -a " '-'-'- ' '- ses ' ' ' 9 �
V � ;�jviii) any and all historical parking agreements, `
�
understandings, commitments and/or promises, whether in writing or oral, concerning the
Nicollet Property or the 9 Vail Road Property; (iR�the actual use by 9 Vail Road of the Nicollet
Property for parking,access,ingress and e�ess,prior to the date of this Agreemer�(x)the actual
or perceived dependence of 9 Vail Road on parking, access, ingress and egress to the Nicollet
Property for any purpose whatsoever;
, 9 �I`�
L�
�
, ,
r y any pas , curren
anrl all nr�j,�,ca rlaimC A ainct thP 1�,TiCn�� prnr�+-►.,^.Fl.o h�� '1 n a n r__.1,
--��---i � e� c.:e � �uie xc6aa x ropcny'--roe n�����,
-�-
, nit owners
, ls
anrl/nr an::::e...o '`1 .i .i e,7 ' -�:
.,.� - -
r
(xvi) any and all parking disputes, claims or allegations by and through the parties hereto
concerning the Nicollet Property and the 9 Vail Road Property; (xvii) the actual use by any
current or past owner of the Nicollet Property of the 9 Vail Road Property for access,ingress and
egress for trash removal;and(xvii�any and all other matters,directly or indirectly,related to any ��
of the matters referenced above,Notwithstanding the foregoing, the parties hereto specifically `A
� �,\s �
agree that the foregoing releases shall not, in any way, affect their obligations and duties as �
specifically contained in this Agreement,in thg Exhibits or as to be required qy Or �nance Nos. 9 �
or �'� �A��c-�1.�{ �e��►rew�.e��s o� � ��C
and 10, Series 2003, �dlri any Town of Vail general land use code or regulation. s such, ��
� _ ^�
the parties hereto specifically retain and preserve any claims arising out of a breach of this �•�
Agreement,the Exhibits or Ordinance Nos.9 and 10,Series 2003. '
8. Vail, together with its elected and appointed officials, employees, successors,
assigns,agents, and consultants does hereby release and forever discharge both Nicollet,together
with its shareholders, directors, officers, employees, successors, assigns, agents, accountants, /�
. Deleted:,togetLer with its board, �
_�_ __ __
consultants, and attorneys, and 9 Vail Roac�from any and all claims, demands, debts, causes of ' e'�'i°ye�,5°°°�S°rs,ass'�S,age°cs, l
_ .._ .. _ _ .. .... .. . _.. - `accountants,consultants and attomeys j
actions, suits, express or implied warranties, covenants, contracts, agreements and promises
whatsoever, arising prior to the date hereof, that Vail, together with its elected and appointed
officials, employees, successors, assigns, agents and consultants ever had, now have or may
-8-
C/' �
hereafter have against either Nicollet, together with its shareholders, directors, officers,
Deleted:,wgether with its board, —�
I employees, successors, assigns, agents, accountants, consultants, and attorneys, and 9 Vail Roac�_- � � ��°yees,5°���5°�S,assigns�agents,
, accountants,consultants and attomeys
—�
by reason of any matter or thing,lrnown or unknown, arising out of or in connection with(i)the
entitlements requested by Nicollet and to be approved by Vail in connection with the
redevelopment of the Nicollet Property;(ii)Ordinance No.9,Series of 2003 of the Town of Vail,
Colorado; (iii) Ordinance No. 10, Series of 2003 of the Town of Vail, Colorado; (iv)any and all
parking disputes, claims or allegations by and among the parties hereto concerning the Nicollet
Property and the 9 Vail Road Property arising prior to the date hereof; and(v) all other matters,
directly or indirectly, related to any of the matters referenced above. Notwithstanding the
foregoing, the parties hereto specifically agree that the foregoing releases shall not, in any way,
affect their obligations and duties as specifically contained in this Agreement, in the Exhibits or
as to be required by Ordinance Nos. 9 and 10, Series 2003, or pursuant to any Town of Vail
general land use code or regulation. As such, the parties hereto specifically retain and preserve
any claims arising out of a breach of this Agreement, the Exhibits or Ordinance Nos. 9 and 10,
Series 2003.
, � Delet2d:,together with its board,
I 9. 9 Vail Roac�, does hereby_ release and forever dischar�e both Doramar � � employees,unit owners(to the fitllest �
- - - -- - - - - - - - -- - -� - - - - - - --- - - - - - - - - - - - - - - -- - - - � , , ��ounran , onsuuants
� extent pertnitted by law) successors,
i
assigns agents a u c �
Corporation, f/k/a DAB Inveshnents, Inc., d/b/a Chateau Vail Holiday Inn, together with its � �d attomeys �
shareholders,directors, officers,employees,successors,assigns,agents,accountants,consultants,
and attorneys, and Daymer Corporation, together with its shareholders, directors, officers,
employees, successors, assigns, agents, accountants, consultants and attorneys from any and all
claims, demands, debts, causes of actions, suits, express or implied warranties, covenants,
-9-
�`�
�D2leted:,together with its boazd,
I contracts, agreements and promises whatsoever, arising prior to the date hereof,t}13t 9 V31�R03C�, - � ernployees,unit owners(to tlte&llest
� extent peruutted by law),successors,
Iassigns,agents,accountants,consultan[s
ever had, now have or may hereafter have against either poramar Corporation, f/k/a DAB `�dattorneys_ ���
Investments, Inc., d/b/a Chateau Vail Holiday Inn, together with its shareholders, directors,
officers, employees, successors, assigns, agents, accountants, consultants, and attorneys, and
Daymer Corporation, together with its shareholders, directors, officers, employees, successors,
assigns, agents,accountants,consultants and attorneys by reason of any matter or thing,known or
unknown, arising prior to the date hereof, including but not limited to those arising out of or in
connection with(i)the operation,management and functioning of the Nicollet Property and the 9
Vail Road Property; (ii) the entitlements requested by Nicollet and to be approved by Vail in
connection with the redevelopment of the Nicollet Property;(iii)Ordinance No.9,Series 2003 of
the Town of Vail, Colorado; (iv)Ordinance No. 10, Series 2003 of the Town of Vail, Colorado;
(v) the June 10, 1991 Easement Agreement, filed of record on August 28, 1991 in the office of
the Eagle County Recorder, State of Colorado in Book 561 at Page 54; (vi) 9 Vail Road's
involvement with the Nicollet Property,in any capacity,prior to the date of this Agreement;(vii)
any and all historical land uses by and between the 9 Vail Road Property and the Nicollet
Property; (viii) any and all historical parking agreements, understandings, commitments and/or
promises, whether in writing or oral, conceming the Nicollet Property or the 9 Vail Road
Property; (ix) the actual use by 9 Vail Road of the Nicollet Property for parking, access, ingress
and egress,prior to the date of this Agreement; (x)the actual or perceived dependence of 9 Vail
Road on parking,access, ingress and egress to the Nicollet Properiy for any purpose whatsoever;
(xi) the historical conduct of any past or current owner of either the Nicollet Property or the 9
- 10-
� r n(S t�rt—+' ! b(� —
10. It is the specific intent and purpose of this Agreement to release and forever
discharge any and all claims, demands, debts and causes of action of any kind or nature
whatsoever, whether known or unknown, asserted or unasserted, expressed or implied, whether
specifically mentioned or not,which may exist or might be claimed to exist at or prior to the date �
'/�V�
of this Agreement, (except as to any claims arising out of a breach of this Agreement, the ��#" O�
� �
Exhibits or Ordinance Nos. 9 and 10, Series 2003) and the parties hereto hereby specifically �.,�
waive any right to assert that any claims or alieged claims have been,through oversight or error,
or intentionally or unintentionally, omitted from this Agreement. Notwithstanding anything to
the contrary herein, the Vail release set forth in paragraph 8 above shall be and is specifically
limited in scope and effect to those specific issues and claims set forth therein. It is not the
intention of the parties hereto (nor the purpose of the Vail release) that the Vail release should
provide a"blankeY'or"global"release to any party hereto,regardless of the fact that those same
parties did intend and did provide Vail with a full, complete, blanket and global release of all
claims.
11. Nicollet and 9 Vail Road hereby acknowledge and agree that all prior agreements,
contracts and understandings (whether written ar oral)by and between them shall as of the date
of this Agreement be of no further force and effect and be deemed terminated in all respects.
12. The parties hereto represent, covenant and warrant that none of the rights, claims
or causes of action covered by this Agreement or the Exhibits has heretofore been assigned,
subrogated,given to someone else or otherwise transferred and that the parties are not aware of
any attempt by a third party or entity not a party to this Agreement to assert a right, claim, cause
- 12-
of action or lien with respect to any of the rights, claim or causes of actions released and
discharged under the foregoing paragraphs of this Agreement. Further, 9 Vail Road represents,
covenants and warrants to Nicollet and Vail that it has no knowledge whatsoever of any actual or
threatened claims, allegations, disputes, demands, contracts, agreements or other understandings
by any past or cunent unit owner of 9 Vail Road against Nicollet and/or Vail relating to the
subject matter of this Agreement and/or the Exhibits.
13. 9 Vail Road represents, covenants and warrants to Nicollet and Vail that ' as the
Association) controls and possesses each and every claim, right or benefit r ased b • 9 Vail
, Deleted:claimed or made by 9 Vail
Rc�ad her�under Frrrtlier_ 9 Vail Road hereb irrevocabl a ees to i mniq�and hold harmless � �oadthroughoutt6eapprovalprocessof
—�_- - - - --- - - .. - - - - - - _ .. . y- -- - - - --y- �-- - - - - - - - �I- - - --- - - - -- - -- ' t6eTownofVaiPsOrdinanceNos.9aud
. 1Q Series 2003,including but not limited
,�licollet, to�ether with its shareholders, directors, office , employees, successors, assigns, `, to,au��a�,a�a�,�S�,�u,
covenants,contracts�agrcements and
promises related,directly or indirecUy to
agents, accountants, consultants, and attorney�fro _ nd against any and all claims,_demands, p�x�g ngnc�,privileges,obligations
', and/or liabilities
debts, causes of action, suits, covenants, co acts, agreements, attorneys' fees and costs and •, oeieted_n55u�b _
, Deleted:boch
promises brought or threatened to be rought by any past, current or future unit owner (to the �eieted:,ana va>>,mge�n�W����
� elected and appointed o�cials,
( employees,successors,assigns,agents
fullest extent permitted by la , employee, board member, successor, assign, agent, accountant, l and cansultants,
consultant or attorne 9 Vail Road relating, directly or indirectly, to�(ij�ast access ri4hts to �_
, i Deleted: any claim,demand,deb4
Al'klTlu Oil ' �ICO��e1' �TO et'[�'; and ll) iiti� al'k131 USe llahlS OTl 1}l� �1C0���1 �TO eiCV a ! causeofactiou,suit,covenant,easement,
� �� contract,agreement,promise,matter or
thing which is
cove in ��art by and the,�elease from 9 Vail Road to Nicollet as contained in paragraph 7 _ _ - oeieted:sub��t�ec�orc�e
above.
14. The parties hereto hereby acknowledge and agree that this Agreement, together
with the Exhibits are a compromise of disputed claims, and that the execution of this Agreement
and the Exhibits is not to be construed as an admission of liability on the part of any of the
- 13 -
F
agreements, understandings or commitments (whether written or oral) concerning or relating to
the subject matter of this Agreement and/or the Exhibits and the parties hereto acknowledge that
the terms hereof are contractual in nature and not mere recitals.
19. The parties hereto hereby acknowledge and agree th�ubject to the interim rights
noted belo ' y controversy or claim arising out of or related, directly or indirectly�to this
A eemen�t�and Exhibits att�ched h eto or a breach of this Agreement or Exhibits attached
�O�a'"7r1'� �w 'a�-!'►4n �- a.t�►'iw�, 8�'�SJ
hereto�hall be resolved by arbitration administered by the American Arbitration Association
under its Construction Indushy 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 arbitrator(s)may grant any remedy or relief,consistent with Colorado law,
that the arbitrator(s)deems just and equitable and within the scope of this Agreement and/or the
Exhibits including,but not limited to, summary judgment, damages and specific performance o
/"�0
this Agreement and/or the Exhibits. The parties hereto hereby agree that the arbitrator(s)shallAm
/I
the award, have the authority to assess damages or fees, expenses and compensation (including � 1���"—�
but not lim'ted to, rca�3e attorneys' fees and costs) in favor of the prevailing party in the
j�v} S�t�vl ohl,� h�
arbitration. Each party shall also have the right to apply for and to obtain interim judicial relief
pending the results of the arbitration.
20. The parties hereto agree that this Agreement and the Exhibits attached hereto shall
be governed in all respects by the laws of the State of Colorado.
- 15-
25. 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. Norice 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 9 Vail
Road and Nicollet are as follows:
9 Vail Road: Holiday House Condominium Association,
d/b/a 9 Vail Road Condominiums
P.O.Box 5733
Vail,CO 81658-5733
Attention:Association President
Phone: (970)479-7100/Fax:(970)476-8852
Nicollet: Nicollet Island Development Co.
600 Foshay Tower
821 Marquette Avenue South
Minneapolis,MN 55402
Attention:General Counsel � \
Phone: (612)332-1500/Fax:(612)332-2428 ` �j��
.___----� v ���-
26. The parties hereto acknowledge and agree that this Agreement and the Exhibits
�� b-�^
attached hereto s11ka3�t�be fully and completely executed by the appropriate parties and placed into
Escrow with Land Title Guarantee Company, as Escrow Agent, prior to the scheduled second
reading of Ordinance Nos.9 and 10,Series 2003,on October 7,2003.
IN WITNESS WHEREOF, the parties hereto have executed this Compromise and
Deleted:_
____ _ _
' -------�
' Formatted
Release Agreement effective as of the�day of October 2003. ,: - -�
NICOLLET ISLA1vD DEVELOPMENT CO.,
- 17 -
MEMORANDUM
TO: Town Council
FROM: Department of Community Development
DATE: October 7, 2003
SUBJECT: A request for a major amendment to Special Development District No. 36, pursuant
to Section 12-9A-10, Vail Town Code,to allow for a mixed-use hotel; and a request
for a proposed rezoning of Lot 9A, Vail Village 2"d Filing from Heavy Service (HS)
district to Public Accommodation (PA) district, located at 28 S. Frontage Road and
13 Vail Road/Lots 9A& 9C, Vail Village 2"d Filing.
Applicant: Nicollet Island Development Company Inc.
Planner: Russ Forrest& George Ruther
I. SUMMARY OF CHANGES FROM FIRST READINGS
Ordinances No. 9 and No.10, Series of 2003, were approved on first reading by the Town
Council on May 6, 2003. Second readings of the ordinances were tabled numerous times to
allow for the applicant and staff to resolve some of the conditions of first reading. The
following summarizes the changes that have been made to Ordinances No. 9 and No. 10,
Series of 2003, since first reading:
Ordinance No. 9, Series of 2003:
■ Condition 2 has been amended to reflect the completion of the Memorandum of
Understanding, dated September 16, 2003, outlining the responsibilities and
requirements of the required off-site improvements. The Memorandum of
Understanding has been attached to Ordinance No. 9, Series of 2003.
■ Section 4 has been modified to state "the required parking spaces shall not be
individually sold,transferred, leased, conveyed, rented or restricted to any person
other than a condominium owner, fractional fee owner, tenant, occupant or other
user of the building, except that six (6) of the required spaces may be utilized by
the Holiday House Condominium Association,d/b/a Nine Vail Road Condominiums
for parking pursuant to the terms of a recorded Parking Easement Agreement?
■ Condition 6 has been stricken, which required revisions to the architectural plans
of the building at the corner adjacent to the Alphorn. The applicant has made
these revisions.
■ Condition 7 has been stricken to reflect the approval of the variance to allow for the
relocation of four parking spaces for 9 Vail Road.
• Condition 25 from 1 St reading was removed at the Town Council's direction which
stated "That the Developer shall coordinate with the Town to provide a bus stop at
the pedestrian sidewalk connection to West Meadow Drive. This design shall be
1
submitted to the Town of Vail for review and approval by the Town and the Design
Review Board prior to submittal of a building permit."
■ Condition 26 has been added to reflect the Council's condition of approval on first
reading, which states "that the developer shall commit no act or omission in any
way to cause the current operation of the Chateau to cease until such time as a
demolition permit is issued by the Department of Community Development."
■ Condition 27 has been added which states"that Ordinance No. 9, Series of 2003,
shall not take effect until January 1, 2004." This condition was requested by the
developer to ensure that the existing approvals for the site would not expire until
the developer has taken ownership of the property. Condition 24 has not been
changed since 1St reading and still requires the developer to "begin initial
construction of the Four Seasons Resort within three years from the time of its
final approval at second reading of the ordinance amending Special
Development District No. 36..."
Ordinance No. 10, Series of 2003
• The condition of approval for when the rezoning was to take effect was modified
from, "such date that a demolition and/or building permit is issued forthe demolition of
the existing structure on the site of Lot 9A,Vail Village 2nd Filing,for preparation for the
construction of Special Development District No. 36, Four Seasons Resort," to
"That the rezoning of Lot 9A, Vail Village 2"d Filing shall take effect on January 1,
2004."
II. SUMMARY OF REQUESTS
The Four Seasons Resort is a mixed-use development proposal, located at 28 South
Frontage Road and 13 Vail Road/Lots 9A and 9C, Vail Village 2"d Filing. The proposal is
for the redevelopment of the existing Chateau of Vail and the Vail Amoco sites. Uses within
the development include residential, hotel, commercial and recreation.
The key components of the Four Seasons Resort development proposal are provided below:
■ 47,592 sq. ft. —fractional fee club units (22 units)
■ 53,421 sq. ft. —condominiums (18 units)
■ 76,978 sq. ft. —accommodation units (118 keys)
■ 10,202 sq. ft. —employee housing units (34 units)
■ 7,695 sq. ft. —restauranUretail
■ 11,726 sq. ft. —conference/meeting rooms
■ 14,416 sq. ft. —spa/health club
Maior Amendment to Special Development District No. 36
The Four Seasons Resort is requesting a major amendment to Special Development District
No. 36. Pursuant to Section 12-9A-10,Amendment Procedures,Vail Town Code,a Special
Development District allows for deviations from the development standards as regulated by
the underlying zoning, provided it is determined that such deviations provide benefits to the
Town that oufinreigh the adverse effects of such deviations. It does not allow for deviations
from the permitted or conditional uses of the underlying zoning. The Four Seasons Resort
2
proposal contains the following deviations from the underlying Public Accommodation zone
district:
Hei ht—as recommended, the maximum height of the building is 89 feet, which is
41 ft. higher than the 48 ft. allowed under the Public Accommodation zone district
regulations. The primary roof ridge (which runs parallel to South Frontage Road) is
proposed to have a maximum height of 77.5 ft.
Site Coveraqe (below qrade) — as recommended, the site coverage below grade
exceeds the maximum allowable by the Public Accommodation zone district. The
Public Accommodation zone district allows 65% site coverage (77,199 sq. ft.) As
recommended,the applicant is proposing below grade site coverage of 71%(84,402
sq. ft.) and above-grade site coverage of 58% (69,346 sq. ft.).
Staff has attached the Four Seasons Resort Zoninq Analvsis, dated April 28, 2003, for
reference. The analysis compares the development standards outlined by the underlying
zoning of Public Accommodation to the Vail Plaza Hotel West proposal from 2001, to the
proposal for the Four Seasons Resort.
Rezoninq Request
Section 12-3-7, Amendment, Vail Town Code, regulates the process for zone district
boundary amendments. The proposal for the Four Seasons Resort includes a rezoning of
Lot 9A, Vail Village 2"d Filing from Heavy Service zone district to Public Accommodation
zone district and inclusion in Special Development District No. 36, as recommended by the
Planning and Environmental Commission. The zoning map amendment is included in
Exhibit A of Ordinance No. 10, Series of 2003.
III. BACKGROUND OF DEVELOPMENT REVIEW PROCESS
On April 28, 2003, the Planning and Environmental Commission voted 4-0-1 (Hartman
recused)to recommend approval of the major amendment to Special Development District
No. 36, Four Seasons Resort, and the rezoning request of Lot 9A, Vail Village 2"d Filing to
Public Accommodation zone district to Heavy Service zone district.
The Planning and Environmental Commission also voted 4-0-1 (Hartman recused) to
approve the conditional use permits to allow for a 22 unit fractional fee club and 34 Type III
Employee Housing Units. The conditional use permit approval is conditioned upon approval
of second reading of Ordinance No. 9, Series of 2003.
The Planning and Environmental Commission's recommendation of approval included the
conditions as outlined in Section 5 of Ordinance No. 9, Series of 2003. Each of the
conditions is time-sensitive and, in addition,to the conditions of approval,the Planning and
Environmental Commission recommended approval of the following off-site improvements,
as indicated on Sheet A-12.0.1 Off-site Improvements Plan, and as referenced in Section 4
of Ordinance No. 10, Series of 2003:
• Widening of the south side of the South Frontage Road and installation of a left turn
lane to the Four Seasons Resort and the Vail Police Station, with final design to be
approved by the Town of Vail and Colorado Department of Transportation.
• Installation of landscaped medians on South Frontage Road from the roundaboutto
the western lot line of the Scorpio.
3
• Installation of a detached 6 ft. wide heated paver sidewalk adjacent to South
Frontage Road and the Four Seasons Resort frontage.
• Installation of an attached 6 ft. wide heated sidewalk and all related necessary
improvements(i.e. retaining wall, railing, curb and gutter)adjacent to South Frontage
Road, along the Scorpio frontage.
• Relocation of the fire hydrant adjacent to South Frontage Road.
• Relocation of Spraddle Creek piping and installation of new box culverts.
• Installation of heated paver sidewalk on Vail Road along Four Seasons Resort
frontage.
• Installation of heated paver sidewalk from the west side of Mayors Park to the west
property line of the Four Seasons Resort frontage on West Meadow Drive, in
accordance with the Town of Vail Streetscape Master Plan.
• Installation of decorative lighting adjacent to public walkways along Four Seasons
Resort frontage, with final design and location to be approved by the Town of Vail
staff and Design Review Board.
• Overlay of South Frontage Road from the western end of the Scorpio to the
roundabout.
• Road improvements to the north half of West Meadow Drive adjacent to the Four
Seasons Resort frontage, including curb, gutter, asphalt reconstruction, and
drainage improvements. Final design to be approved by the Town of Vail.
• Road improvements to Vail Road from the roundabout to the driveway of 9 Vail
Road, including curb, gutter, asphalt, and drainage improvements.
The Staff Memorandum to the Planning and Environmental Commission, dated April 28,
2003, is available at the Community Development Department upon request.
The Design Review Board has reviewed the Four Seasons Resort development proposal on
three previous occasions. The Design Review Board has stated their conceptual support of
the design of the Four Seasons Resort and will continue to review the architectural details of
the project as outlined in the conditions of Ordinance No. 9, Series of 2003.
IV. MAJOR AMENDMENT TO SPECIAL DEVELOPMENT DISTRICT NO. 36
Article 12-9A,Special Development District,Vail Town Code provides for the amendment of
existing Special Development Districts in the Town of Vail. According to Section 12-9A-1,
the purpose of a Special Development District is as follows:
To encourage flexibility and creativity in the development of land, in order to promote
its most appropriate use; to improve the design character and quality of the new
development within the Town;to facilitate the adequate and economical provision of
streets and utilities;to preserve the natural and scenic features of open space areas;
and to further the overall goals of the community as stated in the Vail
Comprehensive Plan. An approved development plan for a Special Development
District, in conjunction wifh the property's underlying zone district, shall establish the
requirements for guiding development and uses of property included in the Special
Development District.
An approved development plan is the principal document in guiding the development, uses,
and activities of the Special Development District. The development plan shall contain all
relevant material and information necessary to establish the parameters with which the
4
Special Development District shall adhere. The development plan may consist of, but not be
limited to:the approved site plan;floor plans, building sections, and elevations:vicinity plan;
parking plan; preliminary open space/landscape plan; densities; and permitted, conditional,
and accessory uses.
The determination of permitted, conditional and accessory uses shall be made by the
Planning and Environmental Commission and Town Council as part of the formal review of
the proposed development plan. Unless further restricted through the review of the
proposed Special Development District, permitted, conditional and accessory uses shall be
limited to those permitted, conditional and accessory uses in the property's underlying zone
district.
The Town Code provides nine design criteria which shall be used as the principal criteria in
evaluating the merits of the proposed Special Development District. It shall be the burden of
the applicant to demonstrate that submittal material and the proposed development plan
comply with each of the following standards, or demonstrate that one or more of them is not
applicable, or that a practical solution consistent with the public interest has been achieved.
Reductions of the plans have been attached for reference. On April 28,.2003,the Planning
and Environmental Commission found the Four Seasons Resort development proposal to be
in compliance with the following criteria:
A. Design compatibility and sensitivity to the immediate environment, neighborhood and
adjacent properties relative to architectural design,scale, bulk, building height, buffer
zones, identity, character, visual integrity and orientation.
B. Uses, activity and density which provide a compatible, efficient and workable
relationship with surrounding uses and activity.
C. Compliance with parking and loading requirements as outlined in Chapter 12-10 of
the Vail Town Code.
D. Conformity with the applicable elements of the Vail Comprehensive Plan, Town
policies and Urban Design Plan.
E. Identification and mitigation of natural and/or geologic hazards that affect the
property on which the special development district is proposed.
F. Site plan, building design and location and open space provisions designed to
produce a functional development responsive and sensitive to natural features,
vegetation and overall aesthetic quality of the community.
G. A circulation system designed for both vehicles and pedestrians addressing on and
off-site traffic circulation.
H. Functional and aesthetic landscaping and open space in order to optimize and
preserve natural features, recreation, views and functions.
I. Phasing plan or subdivision plan that will maintain a workable, functional and
efficient relationship throughout the development of the special development district.
5
V. REZONING REQUEST
Section 12-3-7, Amendment, Vail Town Code, provides the process for a zone district
boundary amendment. The proposed project includes a request for a rezoning of 28 South
Frontage Road / Lot 9A, Vail Village 2"d Filing. The lot is currently zoned Heavy Service
zone district, the purpose of which is provided in Section 12-7G-1, Purpose, Vail Town
Code, and is as follows:
The Heavy Service District is intended to provide sites for automotive-oriented uses
and for commercial service uses which are not appropriate in other commercial
districts. Because of the nature of the uses permitted and their operating
characteristics, appearance and potential forgenerating automotive and truck traffic,
all uses in the Heavy Service District are subject to the conditional use permit
procedure. In granting a conditional use permit, the Planning and Environmental
Commission or the Town Council may prescribe more restrictive development
standards than the standards prescribed for the District in order to protect adjoining
uses from adverse influences.
As noted in the purpose statement, the Heavy Service zone district is intended for
automotive-oriented uses, including gas and service stations. The applicant is requesting a
rezoning from Heavy Service to Public Accommodation. The purpose of the Public
Accommodation zone district, as provided in Section 12-7A-1, Purpose,Vail Town Code, is
as follows:
The public accommodation district is intended to provide sites for lodges and
residential accommodations for visitors, together with such public and semipublic
facilities and limited professional o�ces, medical facilities, private recreation,
commercial/retail and related visitor oriented uses as may appropriately be located
within the same district and compatible with adjacent land uses. The public
accommodation district is intended to ensure adequate light, air, open space, and
other amenities commensurate with lodge uses, and to maintain the desirable resort
qualities of the district by establishing appropriate site development standards.
Additional nonresidential uses are permitted as conditional uses which enhance the
nature of Vail as a vacation community, and where permitted uses are intended to
function compatibly with the high density lodging character of the district.
The applicant is proposing to include Lot 9A as part of the development site of the Four
Seasons Resort. In addition to the rezoning, Lot 9A will be included in the Special
Development District designation.
Section 12-3-7,Amendment,Vail Town Code, provides the review criteria for a zone district
boundary amendment. It provides the following criteria for review of a zone district boundary
amendment:
A. Factors, Enumerated: Before acting on an application for a zone district boundary
amendment, the Planning and Environmental Commission and Town Council shall
consider the following factors with respect to the requested zone district boundary
amendment:
6
1. The extent to which the zone district amendment is consistent with all the
applicable elements of the adopted goals, objectives and policies outlined in the
Vail Comprehensive Plan and is compatible with the development objectives of
the Town; and
2. The extent to which the zone district amendment is suitable with the existing and
potential land uses on the site and existing and potential surrounding land uses
as set out in the Town's adopted planning documents; and
3. The extent to which the zone district amendment presents a harmonious,
convenient, workable relationship among land uses consistent with municipal
development objectives; and
4. The extent to which the zone district amendment provides for the growth of an
orderly viable community and does not constitute spot zoning as the amendment
serves the best interests of the community as a whole; and
5. The extent to which the zone district amendment results in adverse or beneficial
impacts on the natural environment, including but not limited to water quality, air
quality, noise,vegetation, riparian corridors, hillsides and other desirable natural
features; and
6. The extent to which the zone district amendment is consistent with the purpose
statement of the proposed zone district.
7. The extent to which the zone district amendment demonstrates how conditions
have changed since the zoning designation of the subject property was adopted
and is no longer appropriate.
8. Such other factors and criteria as the Commission and/or Council deem
applicable to the proposed rezoning.
B. Necessary Findings: Before recommending and/or granting an approval of an
application for a zone district boundary amendment the Planning & Environmental
Commission and the Town Council shall make the following findings with respect to
the requested amendment:
1. That the amendment is consistent with the adopted goals, objectives and
policies outlined in the Vail Comprehensive Plan and compatible with the
development objectives of the Town; and
2. That the amendment is compatible with and suitable to adjacent uses and
appropriate for the surrounding areas; and
3. That the amendment promotes the health, safety, morals, and general
welfare of the Town and promotes the coordinated and harmonious
development of the Town in a manner that conserves and enhances its
natural environment and its established character as a resort and residential
community of the highest quality.
�
VI. STAFF RECOMMENDATION
The Community Development Department recommends that the Town Council approve
Ordinance No. 9, Series of 2003, and Ordinance No. 10, Series of 2003,on second reading,
for the proposed major amendment to Special Development District No. 36, to allow for a
mixed-use hotel, located at 28 South Frontage Road and 13 Vail Road / Lots 9A and 9C,
Vail Village 2"d Filing; and a rezoning from Heavy Service zone district to Public
Accommodation zone district located at 13 Vail Road / Lot 9A, Vail Village 2"d Filing.
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I
ORDINANCE NO. 9
SERIES OF 2003
AN ORDINANCE REPEALING AND RE-ENACTING ORDINANCE NO. 14, SERIES OF
2001, PROVIDING FOR THE MAJOR AMENDMENT OF SPECIAL DEVELOPMENT
DISTRICT NO. 36, FOUR SEASONS RESORT, AND AMENDING THE APPROVED
DEVELOPMENT PLAN FOR SPECIAL DEVELOPMENT DISTRICT NO. 36 IN
ACCORDANCE WITH CHAPTER 12-9A, VAIL TOWN CODE; AND SETTING FORTH
DETAILS IN REGARD THERETO.
WHEREAS, Chapter 12-9A of the Town of Vail Zoning Regulations permits the adoption of
Special Development Districts; and
WHEREAS, Nicollet Island Development Company, Inc., has submitted an application for a
major amendment to Special Development District No. 36, Four Seasons Resort; and
WHEREAS, in accordance with the provisions outlined in the Zoning Regulations, the
Planning & Environmental Commission held public hearings on the application; and
WHEREAS, the Planning & Environmental Commission has reviewed the prescribed
criteria for the amendment of special development districts and has submitted its recommendation
of approval to the Vail Town Council; and
WHEREAS, the Vail Town Council finds that the proposed amendment to Special
Development District No. 36, Four Seasons Resort, complies with the nine design criteria outlined
in Section 12-9A-8 of the Vail Town Code and that the applicant has demonstrated that any
adverse effects of the requested deviations from the development standards of the underlying
zoning are outweighed by the public benefits provided; and
WHEREAS, the approval of the major amendment to Special Development District No. 36,
Four Seasons Resort, and the development standards in regard thereto shall not establish
precedence or entitlements elsewhere within the Town of Vail; and
1
WHEREAS, all notices as required by the Town of Vail Municipal Code have been sent to
the appropriate parties; and
WHEREAS, the Vail Town Council considers it in the best interest of the public health,
safety, and welfare to adopt the proposed Approved Development Plan for Special Development
District No. 36, Four Seasons Resort.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO, THAT:
Section 1. Purpose of the Ordinance
The purpose of Ordinance No. 9, Series of 2003, is to adopt an Approved Development Plan for
Special Development District No. 36, Four Seasons Resort, and to prescribe appropriate
development standards for Special Development District No. 36, in accordance with the provisions of
Chapter 12-9A, Vail Town Code. The "underlying" zone district for Special Development District No.
36 shall remain Public Accommodation zone district.
Section 2. Establishment Procedures Fulfilled, Planninq Commission Report
The procedural requirements described in Chapter 12-9A of the Vail Town Code have been fulfilled
and the Vail Town Council has received the recommendation of approval from the Planning &
Environmental Commission for the major amendment to Special Development District No. 36, Four
Seasons Resort. Requests for the amendment of a special development district follow the
procedures outlined in Chapter 12-9A of the Vail Town Code.
Section 3. Special Development District No. 36
The Special Development District is hereby amended to assure comprehensive development and
use of the area in a manner that would be harmonious with the general character of the Town,
2
provide adequate open space and recreation amenities, and promote the goals, objectives and
policies of the Town of Vail Comprehensive Plan. Special Development District No. 36, Four
Seasons Resort, is regarded as being complementary to the Town of Vail by the Vail Town Council
and the Planning & Environmental Commission, and has been amended because there are
significant aspects of the Special Development District that cannot be satisfied through the imposition
of the standard Public Accommodation zone district requirements.
Section 4. Development Standards - Special Development District No. 36, Four Seasons
Resort Development Plan -
The Approved Development Plan for Special Development District No. 36, Four Seasons Resort,
shall include the following plans and materials prepared by Zehren and Associates, Inc., and Hill
Glazier Architects, and Alpine Engineering, dated April 28, 2003, and stamped approved by the Town
of Vail, dated May 6, 2003.:
a. C1. Existing Conditions Plan
b. C3. Water and Sanitary Sewer Plan
c. C4. Grading and Drainage Plan
d. C5. Erosion and Sediment Control Plan
e. C6. Shallow Utility Plan
f. A-2.0.1 Level 1 Plan (132')
g. A-2.0.2 Level 2 Plan (140',142')
h. A-2.0.3 Level 3 Plan (152')
i. A-2.0.4 Level 4 Plan (162')
j. A-2.0.5 Level 5 Plan (172')
k. A-2.0.6 Level 6 Plan (182')
3
I. A-2.0.7 Level 7 Plan (192')
m. A-2.0.8 Level 8 Plan (202')
n. A-2.0.9 Level 9 Plan (212')
o. A-2.0.10 Level 10 Plan (222')
p. A-2.0.11 Roof Plan
q. A-5.0.1 Elevations
r. A-5.0.2 Elevations
s. A-5.0.3 Elevations
t. A-8.0.1 Site Plan North
u. A-8.0.2 Site Plan South
v. A-9.0.1 Landscape Plan North
w. A-9.0.2 Landscape Plan South
x. A-10.0.1 Building Height Calculations—Absolute Height/Interpolated Contours
y. A-10.0.2 Building Height Calculations—Maximum Height/Interpolated Contours
z. A-10.0.3 Building Height Calculations at Proposed Grades
aa. A-11.0.1 Existing Circulation
bb. A-11.0.2 Proposed Circulations
cc. A-12.0.1 Off-site Improvements Plan
dd. A-13.0.1 Landscape Area
ee. A-14.0.1 Hardscape Area
ff. A-15.0.1 Above Ground Site Coverage
gg. A-15.0.2 Site Coverage Below Grade
hh. A-16.0.1 Streetscape Elevations
4
Permitted Uses--
The permitted uses in Special Development District No. 36 shall be as set forth in the development
plans referenced in Section 4 of this ordinance.
Conditional Uses--
The conditional uses for Special Development District No. 36, Four Seasons Resort, shall be set
forth in Section 12-7A-3 of the Town of Vail Zoning Regulations. All conditional uses shall be
reviewed per the procedures as outlined in Chapter 12-16 of the Town of Vail Zoning Regulations.
Density-- Units per Acre - Dwelling Units, Accommodation Units, Fractional Fee Club Units
and Employee Housing Units--
The number of units permitted in Special Development District No. 36, Four Seasons Resort, shall
not exceed the following:
Dwelling Units— 18
Accommodation Units— 118
Fractional Fee Club Units—22
Type III Employee Housing Units—34
Density--Floor Area—
The gross residential floor area (GRFA), common area and commercial square footage permitted for
Special Development District No. 36, Four Seasons Resort, shall be as set forth in the Approved
Development Plan referenced in Section 4 of this ordinance.
Specificallv:
GRFA— 177,991 square feet
Retail —2,402 square feet
5
RestauranULounge—12,155 square feet
Conference Facilities— 11,726 square feet
Health Club and Spa—14,416 square feet
Setbacks--
Required setbacks for Special Development District No. 36, Four Seasons Resort, shall be as set
forth in the Approved Development Plan referenced in Section 4 of this ordinance.
Height--
The maximum building height for Special Development District No. 36, Four Seasons Resort, shall
be as set forth in the Approved Development Plan referenced in Section 4 of this ordinance (89
feet maximum).
Site Coverage--
The maximum allowable site coverage for Special Development District No. 36, Four Seasons
Resort, shall be as set forth in the Approved Development Plan referenced in Section 4 of this
ordinance (69,346 square feet above grade or 58%; and 84,402 square feet below grade or 71%).
Landscaping--
The minimum landscape area requirement for Special Development District No. 36, Four Seasons
Resort, shall be as set forth in the Approved Development Plan referenced in Section 4 of this
ordinance (39,687 square feet or 33%).
Parking and Loading —
The required number of off-street parking spaces and loading/delivery berths for Special
Development District No. 36, Four Seasons Resort, shall be provided as set forth in the Approved
Development Plan referenced in Section 4 of this ordinance (211 spaces required, 215 spaces
provided). In no instance shall Vail Road, West Meadow Drive or the South Frontage Road be
6
used for loading/delivery or guest drop-off/pick-up without the prior written approval of the Town of
Vail. The required parking spaces shall not be individually sold, transferred, leased, conveyed,
rented or restricted to any person other than a condominium owner, fractional fee owner, tenant,
occupant or other user of the building, except that six (6) of the required spaces may be utilized by
the Holiday House Condominium Association, d/b/a 9 Vail Road Condominiums for parking
pursuant to the terms of a recorded Parking Easement Agreement. The foregoing language shall
not prohibit the temporary use of the parking spaces for events or uses outside of the building,
subject to the approval of the Town of Vail nor shall it limit the number of spaces available for sale
or lease to condominium and/or fractional fee owners.
Section 5. Approval Aqreements for Special Development District No. 36, Four Seasons
Resort
1. That the developer shall provide deed-restricted housing that complies with the
Town of Vail Employee Housing requirements (Chapter 12-13) for a minimum of 68
employees on the Four Seasons Resort site, and that said deed-restricted
employee housing shall be made available for occupancy, and that the deed
restrictions shall be recorded with the Eagle County Clerk & Recorder, prior to
issuance of a Temporary Certificate of Occupancy for the Four Seasons Resort.
2. That the Memorandum of Understanding as provided in Exhibit A, shall be adopted
with the second reading of Ordinance No. 9, Series of 2003. This fulfills approval
agreement number 2 of first reading of Ordinance No. 9, Series of 2003.
3. That the developer shall record a drainage easement for Spraddle Creek. The
easement shall be prepared by the developer and submitted for review and
approval by the Town Attorney. The easement shall be recorded with the Eagle
County Clerk & Recorder's Office prior to the issuance of a Temporary Certificate of
Occupancy for the Four Seasons Resort.
4. That the developer shall submit a final exterior building materials list, a typical wall
section and complete color renderings for review and approval of the Design
Review Board, prior to submittal of an application for a building permit.
5. That the developer shall submit a comprehensive sign program proposal for the
7
Four Seasons Resort for review and approval by the Design Review Board, prior to
the issuance of a Temporary Certificate of Occupancy for the Four Seasons Resort.
6. That the developer shall submit a rooftop mechanical equipment plan for review and
approval by the Design Review Board prior to the issuance of a building permit. All
rooftop mechanical equipment shall be incorporated into the overall design of the
hotel and enclosed and visually screened from public view.
7. That the developer shall post a bond to provide financial security for the 150% of
the total cost of the required off-site public improvements. The bond shall be in
place with the Town prior to the issuance of a building permit.
8. That the developer shall comply with all fire department staging and access
requirements pursuant to Title 14, Development Standards, Vail Town Code. This
will be demonstrated on a set of revised plans for Town review and approval prior to
building permit submittal.
9. That the required Type III deed-restricted employee housing units shall not be
eligible for resale and that the units be owned and operated by the hotel and that
said ownership shall transfer with the deed to the hotel property, unless a later
change in ownership is approved by the Town of Vail as per the Town Code.
10. That the developer shall coordinate the relocation of the existing electric
transformers on the property with local utility providers. The revised location of the
transformers shall be part of the final landscape plan to be submitted for review and
approval by the Design Review Board.
11. That the developer shall submit a written letter of approval from those adjacent
properties whose property is being encroached upon by certain improvements
resulting from the construction of the hotel, prior to the issuance of a building
permit.
12. That the developer provides a 6 ft. to 8 ft. heated paver pedestrian walkway from
the Frontage Road bus stop adjacent to the West Star Bank then continuing east to
Vail Road and then south to the 9 Vail Road property line. All work related to
providing these improvements including lighting, retaining, utility relocation, curb
and gutter, drainage and landscaping shall be included. A plan shall be submitted
for review and approval by the Town and the Design Review Board prior to
submittal of a building permit.
13. That the developer shall provide a heated pedestrian walk connection from the
Frontage Road to West Meadow Drive. The developer shall record a pedestrian
easement for this connection for review and approval by the Town Attorney prior to
issuance of a Temporary Certificate of Occupancy.
8
14. That the developer shall prepare and submit all applicable access, roadway, and
drainage easements for dedication to the Town for review and approval by the
Town Attorney. All easements shall be recorded with the Eagle County Clerk and
Recorder's Office prior to issuance of a Temporary Certificate of Occupancy.
15. That the developer shall be assessed an impact fee of$5,000 for all net increase in
pm traffic generation as shown in the revised April 4, 2003, Traffic Study. The net
increase shall be calculated using the proposed peak generating trips less the
existing Resort Hotel and Auto Care Center trips, respectively being 155-(108+7) _
40 net peak trips @ $5000 = $200,000. This fee will be offset by the cost of non-
adjacent improvements constructed.
16. That the developer shall receive approval for all required permits (CDOT access,
ACOE, dewatering, stormwater discharge, etc.) prior to issuance of a building
permit.
17. That the developer shall submit a full site grading and drainage plan for review and
approval by the Town and the Design Review Board. The drainage plan will need to
be substantiated by a drainage report provided by a Colorado professional
Engineer, include all drainage, roof drains, landscape drains etc., and how they will
connect with the TOV storm system. The developer shall submit all final civil plans
and final drainage report to the Town for civil approval by the Department of Public
Works, prior to submittal of a building permit.
18. That the developer shall provide detailed civil plans, profiles, details, limits of
disturbance and construction fence for review and civil approval by the Department
of Public Works, prior to submittal of a building permit.
19. That the developer shall be responsible for all work related to providing landscaping
and lighting within the proposed Frontage Rd. medians. A detailed landscape plan
of the medians shall be provided for review and approval by the Design Review
Board.
20. That the developer shall provide additional survey information of the south side of
the Frontage Road to show existing trees to be removed and additional survey in
front of the Scorpio building in order to show accurate grades for the construction of
the path from the Four Seasons to the bus stop at West Star bank. Final design
shall be reviewed and approved by the Town and the Design Review Board.
21. That the developer is responsible for 100% of final design improvements along
West Meadow Drive from the centerline of the road back to the Four Seasons
property line from Mayors' park to western most property line of the Four Seasons,
including any drainage and grade tie-ins beyond the west property line. This
includes all improvements, including, drainage, lighting, art, streetscape
enhancements, edge treatments, curbs, heated walks, etc. Final plans shall match
9
and be coordinated with the proposed Town of Vail Streetscape plan for West
Meadow Drive and shall be provided for review and approval by the Design Review
Board.
22. That the developer shall incorporate public art into the development, and shall
coordinate all art proposals with the Art in Public Places Board, subject to review
and approval by the Design Review Board.
23. That the developer shall resolve all of the following design-related issues for final
Design Review Board review and approval:
a. Proposed hydrant relocation at the NW corner of the property shall be graded to
be level with the proposed sidewalk and landscaping will be located as to not
interfere with the operation of the hydrant.
b. The cross-slope on the West Meadow Drive walk shall maintain a max. 2.0%
cross slope that is sloped towards the road.
c. The boulder walls and grading at the SE corner of the property shall be modified
as to not impact the existing 2-36" CMP's.
d. The foundation wall at the SE corner of the parking structure shall be modified
to accommodate the existing Spraddle Creek vault.
e. The proposed Spraddle Creek vault and concrete box culvert shall be modified
to work with the existing phone vault.
f. All known existing utilities shall be shown on a plan with the proposed drainage
and utilities in order to clarify potential conflicts.
g. The proposed walk that meets the frontage road walk at the eastern portion of
the property shall be realigned slightly to the west to avoid the existing inlet.
h. Fire staging turning movements shall be show on plans.
i. Retaining walls west of the loading and delivery access drive shall be
curved/angled in order to "bench" access drive wall.
j. Top of wall elevation for the Frontage Rd-West Meadow Drive path reads as
185.5?(Typo)
k. Railings shall be provided for paths where necessary
I. Show edge of existing pavement for Frontage road on civil plans and show
match point.
m. Erosion control plan shall be updated.
n. Show grading around proposed electric vault.
o. Show driveway grades, spot elevations on civil plans.
p. Show additional TOW/BOW elevations on pool walls.
24. That the developer shall begin initial construction of the Four Seasons Resort within
three years from the time of its final approval at second reading of the ordinance
amending Special Development District No. 36, Four Seasons Resort, and continue
diligently toward the completion of the project. If the developer does not begin and
diligently work toward the completion of the special development district or any
stage of the special development district within the time limits imposed, the approval
10
of said special development district shall be void. The Planning and Environmental
Commission and Town Council shall review the special development district upon
submittal of an application to reestablish the special development district following
the procedures outlined in Section 12-9A-4, Vail Town Code.
25. That the Developer shall commit no act or omission in any way to cause the current
operation of the Chateau at Vail to cease until such time as a demolition permit is
issued by the Department of Community Development.
Section 6. Effective Date of the Ordinance
Ordinance No. 9, Series of 2003, shall take effect on January 1, 2004.
Section 7.
If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held
to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance;
and the Town Council hereby declares it would have passed this ordinance, and each part,
section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or
more parts, sections, subsections, sentences, clauses or phrases be declared invalid.
Section 8.
The repeal or the repeal and re-enactment of any provisions of the Vail Municipal Code as
provided in this ordinance shall not affect any right which has accrued, any duty imposed, any
violation that occurred prior to the effective date hereof, any prosecution commenced, nor any
other action or proceeding as commenced under or by virtue of the provision repealed or repealed
and reenacted. The repeal of any provision hereby shall not revive any provision or any ordinance
previously repealed or superseded unless expressly stated herein.
Section 9.
All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are hereby
repealed to the extent only of such inconsistency. The repealer shall not be construed to revise
11
any bylaw, order, resolution or ordinance, or part thereof, heretofore repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE
IN FULL ON FIRST READING this 6th day of May, 2003, and a public hearing for second reading
of this Ordinance set for the 7th day of October, 2003, in the Council Chambers of the Vail
Municipal Building, Vail, Colorado.
Ludwig Kurz, Mayor
ATTEST:
Lorelei Donaldson, Town Clerk
READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 7th day of
October, 2003.
Ludwig Kurz, Mayor
ATTEST:
Lorelei Donaldson, Town Clerk
12
September 11, Zoo3 NINE VAIL ROAD
Condominiums in Vail Villag�e
Russell W. Forrest
Director of Community Development Formerly the Holiday House
Town of Vail
111 South Frontage Road West
Vail, Colorado 81657
Re: Municipal Ordinance No. 9, Series of 2003
Dear Russell:
Holiday House Condominium Association d/b/a Nine Vail Road Condominiums has raised an
issue regarding historic parking rights on Holiday Inn/Chateau at Vail property. Condition 7 of
Ordinance No. 9, Series of 2003 requires:
"That the developer shall submit a written agreement to maintain the current number of
parking spaces for 9 Vail Road Condominiums which is proposed to be relocated in
conjunction with the construction of the Four Seasons Resort...." (emphasis added)
While Nine Vail Road is committed to reaching agreement with Nicollet Island Development
Company regarding the relocation of four spaces within Nine Vail Road property as approved by
Town Council July 1, it does not agree that these four spaces represent the totality of"the current
number of parking spaces for Nine Vail Road Condominiums."
We continue to assert that all spaces historically used by Nine Vail Road on the Holiday Inn lot
and relied upon by the owners of both properties (as well as t�e Town of Vail)fall within condition
7 of Municipal Ordinance No. 9, Series of 2003. We do not believe that condition can be or has
been satisfied until the issue of historic rights to parking on Holiday Inn/Chateau at Vail property
is resolved.
Sincerely,
,
✓,,�� � l �
��.,�.yC.....�.�,.,L_ _/,L��.C�-;-G��-
v
' Holiday House Condominium Association d/b/a Nine Vail Road Condominiums
Gwendolyn G. Scalpello, President
9 Vail Road • Vail, CO 81657
soo/s72-72z1 970/479-7100
\
/l
1�
TOWN OF VAIL
Department of Community Development
75 South Frontage Road
Vail, Colorado 81657
970-479-2138
FAX 970-479-2452
www ci.vail.co.us
September 11, 2003
Mr. Lon Moellentine
Moellentine Land Company, LLC
c/o Lantis Eyewear
461 5th Avenue
New York, New York 10017
Re: Ordinance No. 10, Series 2003—Amending the Official Zoning Map for the Town
of Vail
Dear Mr. Moellentine:
This letter is to confirm that Ordinance No. 10, Series 2003 —Amending the Official Zoning Map
for the Town of Vail will after second reading by the Town of Vail Town Council not become
effective until January 1, 2004 and, as such, the current zoning for the Alpine Standard property
shall not be changed, repealed, superceded or effected until January 1, 2004. Further, prior to
the effective date of January 1, 2004 the property owner or its designated representative can
apply to the Town of Vail to repeal Ordinance No. 10, Series 2003 — Amending the Official
Zoning Map for the Town of Vail and upon its repeal the current zoning shall continue as if the
Ordinance No. 10, Series 2003 — Amending the Official Zoning Map for the Town of Vail had
never been approved on second reading.
I trust that this letter addresses your concerns in this matter, however, if have any further
questions regarding this matter, please do not hesitate to contact me.
Very truly yours „r—
ussell Forrest
Director of Community Development
cc: T.J. Brink, HB Development Co.
S��RECYCLEDPAPER
r
ll
��
TOWN OF VAIL
Department of Community Development
75 South Frontage Road
Vail, Colorado 81657
970-479-2138
FAX 970-479-2452
www ci.vail.co.us
September 11, 2003
Mr. Waidir Prado
Daymer Corporation
950 Red Sandstone Road, #26
Vail, Colorado 81657
Re: Ordinance No. 9, Series 2003— Major Amendment of Special Development
District No. 36, Four Seasons Resort
Dear Mr. Prado:
This letter is to confirm that Ordinance No. 9, Series 2003 — Major Amendment of Special
Development District No. 36, Four Seasons Resort will after second reading by the Town of Vail
Town Council not become effective until January 1, 2004 and, as such, the current entitlements
for the Chateau at Vail property shall not be repealed, superceded or effected until January 1,
2004. Further, prior to the effective date of January 1, 2004 the property owner or its designated
representative can apply to the Town of Vail to repeal Ordinance No. 10, Series 2003 —
Amending the Official Zoning Map for the Town of Vail and upon its repeal the current zoning
shall continue as if the Ordinance No. 10, Series 2003 — Amending the Official Zoning Map for
the Town of Vail had never been approved on second reading.
I trust that this letter addresses your concerns in this matter, however, if have any further
questions regarding this matter, please do not hesitate to contact me.
Very uly you s,
Russell Forrest
Director of Community Development
cc: T.J. Brink, HB Development Co.
���RECYCLED PAPER
09/10/0� 10:26 FAX 612 3a2 2428 SE�PER DEVELOPMENT LTD. �001
���
HB DEV�I,OPMENT CO.
bATE: _,�,��i�u,.�oa.,r I D, �0'�j
To: A I �t��fatine t�la.t�'v.s, �`��+� �ew'�'�� �(��sar, d�G�: a�,��µsS -a�rr�s3''
FAxNO:�`�'s� 78q — LSS5 �3og) �53-��2� av� �97a� 47R •- 2.'�5Z.
FROM: �� ��`"'k
REPLX TO: MINNEApOLIS K DENVER
NO. OF PAGES�NCLUDING COVER PAGE: 3
SPECIAL rIVSTRU'CT"lONS:
A"�'�Ac�►e e�s e �n� a e'� Ce�nt�.r�► ; `��le.
�o a �o�r� ru.a�'-�' o� �� Se��,S b.t,s lt� s�'��—�; � ,
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CONFIDENTIAIdTY NO�CE: TKIS FACSIMILE TRtLNSMITl'.4.L COVER SH�,�'A1Vi� THE ACCCMPANYING
bOCr1�NT(5') AnE INTENDED ONLY FOR TF1'E i'1SE OF THE INTENbED RECL�IENT TO �HI'C14�'1'T 1'S
ADDRE�S'SED AND MA�'CONTA�N'COIVFIDENTIAL OR PRLVl'LEGED lNFORMATC��N. YOrI AItE HEREBY
NOTIF,iE'A THsiT ANY D.ISC�LOSURE, COPY.fNCr, DISZ'RTBUTION OR Z',F�E T.�KII�'�3 OF ANY ACTION ,IN
RELIANCE ON THE CONTENTS OF THIS FACSIMILE EXCEPT ITS DIRECT DIsLI��;G RY TO THE I1Vr'rF,NbF.17
REC.ZPIF.�N2' NAMEA ABOT�' ,�S STRICT.LY PROHIBITED. ,tF XOU K4YE REGE�VED THIS FACSr�,r�rF
TRANSMITfAL IN E.RROR„PLEASE NOTIFY US ItLlMLDIATELYBY TELEPHONE.
�k'XOU�A,VE A.NX P�tOBI��1V,[S�CEIVII�TG T�IIS�+`A.CSIlVAZE,PI�E;A,S'E CALL
(612)332-1500 FOR N�II�TEAPOLTS OR(303)8z5-8500 FOR D�.rfV.�Yt
One 7abor Cente�• 8Z1 Marquerco Avam,:
LZOO Z7LF1 SIIGGT�SII1LG y7O Suire 60D—Foshay
09/10/0� 10:26 FAX 612 332 2428 SE�PER DEVELOPMENT LTD. C�002
. _
4
HB DE'�ELOPMENT CO.
Se�tember l0,2003
'VIA FACSIMILE
(415) 759-1885
A1 & Yvonne Marlens
Scprpio Cv�dominiums, Unit 506
Vail, Colorado
Re: Pzoposed Four Season Resort Vail
Dear A1 &Yvonnc:
Reeeipt of your September 2, 2003 faesimile corresponder�ce c:oncerni.ng the above
referenced xnatter is hereby acl�owl�dged. Please except my apology for t�ie delay in r�sponding
to your cvrrespondence,unfortunately, it could not be avoided for a va�riety of reasons.
In conneetion with your eorrespondence, I would like to elarify t� r,omment a�tributed to
me coneerni.ng the view you wouId have from your balcony after comple�ei yn of the construction
on the Chateau at Vail property_ NIy recollection of our eonversation on}���uz�balcon}�was that I
insisted tha.t the first pictvxe you presented to rne and �lze Town CounciJ (labeled `�view from
searpio top floor ne corner looking south'� was not a cozz�ect represen�lion of the view lrom
your balcony but was in fact a representation of the view from the Frc�rr age Road side of tk�e
Scorpiv Condominium building. AFter you continued to assert that thti.� pici��re was a correct
representati.on of the view from your balcony, Z stated that if that pict�r�� was corre�t then the
proposed construction on the Cha.teau prvperiy did impact your view xq��re than I �nderstood
froxn our er�lier studi�s. In connection with the second pici��re you pre�;ented to r�e and the
Town Council (labeled "view from scorpio top floor se cdrner loo�Cin€ ;outh") I slated that I
believe this was generally a correct represcntation of the view from yow- �r alcony and was xnore
rcpresentative of my understanding regarding your view. N'evertheless, � s�greed to rc;view your
request to see if it was possible to rework the building to shift certain +:ondomi.n.i��ns and/or
fractional fee units to other areas o�the building in an effort to pxvvid�: ;sou with a tn.ore ope�n
view from your balcan�.
Since our initial conversation, we have spoken briefly twice b�• telephone wherein I
infornzed you that we had ascertained t�zat the frst picture you presente.rJ to the Tov►n Councxl
(labeled"view from scorpio top floor ne cornEr lookin� south")was in facl a eompute��generated
simulation of a�view f�om the Frontage Road side of the Scor�io Condomi r zum buildilg looking
south and it wa.s not a view from your balcony and that the second piciure ,�rese�ted tc the Town
Council (labeled "view from scorpio top ��oor se corner looking so�th") was a computer
generated simt�lation of the view from youx balcony.
I -
Oae Tabor C'.en��t� 831 MarqucT[c A.v��e
1200 17rh Sveet,ti��i�e 570 Suire 6(10—Fosl�a)
Dcnvcr.Cc):t0203 �,r:.,.,....,,,i,� ■�w.cc,,.�
09/10/03 10:26 FAX 612 �32 2428 SEMPER DEVELOPMENT LTD. C�00�
� �
A1 &Yvohne Martens
Sept�:mb�r 10,2003
Page 2
Ai�er reviewing yo��r request co�nceming the view from yo»r balcony, we have
unfortunateIy determined that we are unable to accommodate your rec�t��st. If yo�z have any
�urther questions re�arding this matter, pleasc do not hesitate to contact m4;
� Very trul ours,
°'� �
.
Thomas J� Br �- •
President eneral C:��unscl
TJB:It
cc: Mr. Richard Kent, Scorpio Condomin.iiun Association Preside�,t
Ms.Allison Ochs,Town of Vail
Mr. Russ Forrest, Town of Vaxl �
Page 1 of 2
Russ Forrest- Nine Vail Road Parking Rights at Holiday Inn
From: <gscalpello@attglobal.net>
To: <RForrest@vailgov.com>
Date: 09/11/2003 10:32 AM
Subject: Nine Vail Road Parking Rights at Holiday Inn
Russell -
I've researched all of the municipal ordinances through 1983 on parking. I don't think there is any
question Holiday House had parking rights at the Holiday Inn.because
(a)no plans ever showed the entire amount of parking required located on the Holiday House property
(b) locating required parking on adjacent property owned by the same owner was specifically allowed
by ordinance
(c)41 spaces seem to be required by both 1969 and 1972 ordinances (Holiday House reviews seem to
have been in 1972, so either ardinance could govern. Notes on plans seem to indicate 1969 ordinance
being used)
Gwen Scalpello
Parking Requirements as per the following Municipal Ordinances:
Ordinance No. 7, Series of 1969
Section 3: Condominiums: 1.5 spaces per unit 27 Units x 1.5=41
Further, on pages 37-38 of the ordinance: Location of Parking: parking areas, open or enclose, shall be
provided upon the same lot containing the use for which they are required, or on separate lots within a
300 foot radius of such lot containing such use,provided such separate lots or the right to use such
separate lots for the parking purposes herein required shall be held under unified ownership or control.
Ordinance No. 3, Series of 1972 (3/7/72)
Multi-Family: 1.5 spaces per unit
High density and Public Accommodation: # Units # Spaces
- 0 - 600 square feet 1 space 0 0
- 600 - 1000 sq feet 1.25 spaces 12 15
- 1001 - 1300 sq feet 1.5 spaces 8 12
- 1301+ square feet 2 spaces 7 14
Total 27 41
Ordinance No. 8, Series of 1973 (6/19/73)
- zone districts and official zoning map established
- Public Accommodation:
- Multi-Family or Lodge .5 space/dwelling unit + .1 space per 100 sq ft of GRFA
(max 2 spaces per unit) - at least 750 of parking within main building(s)
did not calculate this option, repealed by 26/1982
Ordinance No. 26, Series of 1982 # Units # Spaces
- GRFA < 500 sq ft 1.5 spaces per DU 0 0
- GRFA 500 - 2000 2 spaces per DU 27 54
- GRFA >2000 sq ft 2.5 spaces per DU 0 0
fila•//('•\Winrinwc\temr�\C'TWi���(11 NTM n9/1 1/2(1(13
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Russ Forrest- Easement Agreement- E onies.DOC Page 1 :
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�
RECOlZDING REQUESTED BY
AND WHEN RECORDED,MAIL TO:
Nicollet Island Development Co.
600 Foshay Tower
821 Marquette Avenue
Minneapolis. Minnesota 55402
Attention: General Counsel
AIR SPACE EASEMENT AGREEMENT
This Air Space Easement Agreement ("Agreement") is made this day of October
2003, by and between Nicollet Island Development Co., a Minnesota corporation ("Grantor")
� and Holiday House Condominium Association d/b/a Nine Vail Road Condominiums, a
� Colorado (hereinafter referred to as the"Grantee"and/or"Association").
RECITALS
WHEREAS, Grantor is the owner of certain real property located in the Town of Vail,
County of Eagle, State of Colorado ("Property") as more particularly described on Exhibit A
hereto.
WHEREAS, Grantee is the owner of certain real property located in the Town of Vail,
County of Eagle, State of Colorado("Benefited Land")as more particularly described on Exhibit
B hereto.
WHEREAS, Grantee desires to acquire and Grantor desires to grant an easement over
portions of the Property for certain balconies that overhang the Property, as specifically
� delineated on the map attached hereto as Exhibit C (the `Balcony Easement Area") and as more
'�, particularly described on Exhibit D attached hereto. �
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of �
which is hereby acknowledged,the parties agree as follows:
1 1. Easement. Grantor hereby grants to Grantee and its successors in interest for use �
� by the Association's customers, invitees, guests, agents and unit owners (the "Permittees") the
'�, following nonexclusive, perpetual, appurtenant easement (the "Easement") upon the terms and
conditions herein described:
l.l Balcony Easement. An easement for reasonable use of the air space over
I the Balcony Easement Area for the sole and exclusive purpose of the use, 4'
, enjoyment, maintenance, repair and restoration of three (3) balconies attached to �,
f
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�
�'
Russ�Forrest- Easement Agreement- B� �nies.DOC L Page 2 1
�'.
I':
the building currently constructed on the Benefited Land.
1.2 Reasonable Use of Easement. The rights to the Easement granted pursuant
to this Agreement: (i) shall at all times be exercised in such a manner as to not
materially interfere with, obstruct or delay the conduct and operation of any
business conducted on the Property, including without limitation, public access to
and from said business; and (ii) are subject in all respects to the rights of Grantor,
all future owners of the Property and the permittees of Grantor and such future
owners to use the Balcony Easement Area for any lawful purpose, subject to the
rights of the Association and its successors and its Permittees to use the Easement
set forth herein.
13 Repair and Restoration Activities. All construction and repair activities
within the Balcony Easement Area by Grantee and its agents, successors and
assigns ar any Permittee of the Benefited Land, shall be at Grantee's (or its
successors and assigns) sole cost and expense and shall be conducted in �
compliance with the following requirements: (i) no work shall be undertaken �
without at least ten(10)days advance written notice to the Grantor and such work �
shall be conducted so as to not materially interfere with, obstruct or delay the
conduct and operation of any business conducted on the Property, including
without limitation,public access to and from said business.
1.4 Maintenance of Balconv Easement Area. Grantee and each future owner or
Permittee of the Benefited Land (or its successors and assigns), shall be
responsible to operate and maintain, or cause to be operated and maintained, in
� good order and condition, at its sole cost and expense, the Balcony Easement
' Area.
I
2. Insurance. Throughout the term of this Agreement, the Grantee shall procure and
maintain, or cause to be procured and maintained, general and/or comprehensive public liability
and ro ert dama e insurance a ainst claims for ersonal in u death, or ro e dama e �
P P Y g g P J rY, P P �Y g
occurring upon the Property, with single limit coverage of not less than an aggregate of Two �
i Million Dollars ($2,000,000.00) including umbrella coverage, if any, and naming Grantor as an
additional insured.
�
�
3. No Rights in Public; No Im�lied 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 Balcony Easement Area. No easement, except as expressly set forth in Section 1 shall be
implied by this Agreement.
4. Remedies and Enforcement.
, 4.1 All Legal and Equitable Remedies Available. In the event of a breach or
�I threatened breach by Grantor or Grantee of any of the terms, covenants,
j 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 equitable f''
�
t:
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Russ Forrest- Easement Agreement- E. onies.DOC Page 3 j
--_ ---------- — --_ _ ___- -
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remedies from the consequences of such breach, including payment of any
amounts due and/or specific performance.
4.2 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 m�imum rate of interest allowed by
�
law). Notwithstanding the foregoing, in the event of (i) an emergency or (ii) � ,
blockage or material impairment of the easement rights, a party hereto may F
immediately cure the same and be reimbursed by the other party upon demand for
the reasonable cost thereof together with interest at the prime rate, plus two
�
percent(2%),as above described.
I
4.3 Lien Ri�. 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 parties'
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
i 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 not
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 recarding same shall record an appropriate release of such
notice of lien and Assessment Lien.
' 4.4 Remedies Cumulative. The remedies specified herein shall be cumulative
' and in addition to all other remedies permitted at law or in equity.
�� 5. Miscellaneous.
�� �.
,
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Russ Forrest- Easement Agreement- 6. .onies.DOC „ Page 4�
--_ I''.
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5.1 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 (ar such successors and assigns) and then only after
receiving the prior written consent of the Town of Vail to such modification,
amendment or termination.
5.2 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.
5.3 Covenants to Run with Land. It is intended that each of 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.
5.4 Acceptance. Any future grantee of the Property or the Benefited Land, by
acceptance of a deed conveying title thereto or the execution of a contract for the
purchase thereof, whether from an original party or from a subsequent owner of
such property, shall accept such deed or contract upon and subject to each and all
of the easements, covenants, conditions, restrictions and obligations contained
� herein. By such acceptance, any such grantee shall for itself and its successors,
! assigns, heirs, and personal representatives, covenant, consent, and agree to and
with the other party, to keep, observe, comply with, and perform the obligations
and agreements set forth herein with respect to the property so acquired by such
grantee.
�
5.5 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
i to time their respective address for notice hereunder by like notice to the other
party.The notice addresses of the Grantor and Grantee are as follows:
Grantee: Holiday House Condominium Association,
d/b/a Nine Vail Road Condominiums
� P. O.Box 5733
Vail, CO 81658-5733
Attention: Association President
I
Grantor: Nicollet Island Development Co.
!, 600 Foshay Tower
� 821 Marquette Avenue South �`
, i,
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Russ Forrest- Easement Agreement- �. onies.DOC � Pa e 5
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-- -- - _ _.
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Minneapolis,NIN 55402
Attention: General Counsel
5.6 Governin�Law_. The laws of the State of Colorado shall govern the
interpretation,validity,performance,and enforcement of this Agreement.
5.7 Esto�pel 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.
5.8 BankruptcX. In the event of any bankruptcy affecting any party, the parties
agree that this Agreement shall, to the ma�cimum 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.
� 5.9 Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall constitute one and the same instrument.
5.10 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 and to grant the Easement set forth herein. Further, the parties
represent and warrant to the other party that the individuals executing this
Agreement on behalf of said pariy have the unqualified authorization and
authority to execute this Agreement and bind said party to the express terms
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first written above.
"GRANTOR"
, Nicollet Island Development Co.,
a Minnesota corporation
By:
Thomas J. Brink �,
Its: Vice President and General Counsel �
�
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__ - _ ,., _.,_ _ — ....
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s Russ Forresf- Easement Agreement- E �nies.DOC Pa e 6
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STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on , 2003,by Thomas
J. Brink, the Vice President and General Counsel of Nicollet Island Development Co., a
Minnesota corporation, on behalf of the company.
Notary Public
"GRANTEE"
Holiday House Condominium Association,
d/b/a Nine Vail Road Condominiums,
a Colorado
By:
Its:
By:
Its:
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
This instrument was acknowledged before me by as its
and as its of Holiday House
Condominium Association, d/b/a Nine Vail Road Condominiums, a Colarado ,
' on behalf of the Association.
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
A. 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 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 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 41'47"and along the West line of said Lot
A, 110.00 feet;
- thence on an angle to the left of 73 degrees 53'12", 156.13 feet to the West line of Vail
Road;
- thence on an angle to the right of 73 degrees 53'12"and along said West line 29.15 feet;
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- thence on an angle to the right of 106 degrees 06'48", 156.13 feet to the West line of said
Lot A;
- thence on an angle to the left of 134 degrees 17'11", 67.00 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", 86.00 feet;
- thence on an angle to the right of 102 degrees 13'17", 101.50 feet,more or less to the
Northerly line of West Meadow Drive;
- thence on an angle to the right of 38 degrees 13'30"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
I of 525.00 feet,a central angle of 06 degrees 23'12", an arc distance of 58.52 feet to the
Westerly line of Lot C;
- thence on an angle to the right of 84 degrees 48'35"and along the Westerly line of Lot C,
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5 . 5 feet t h
o t e South right of way hne of U.S.Highway No. 6;
' - thence on an angle to the right of 90 degrees 00'00"and along said South right-of-way
line 300.00 feet,more or less,to the true point of beginning. i',
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TOGETHER WITH AN EASEMENT for Ingress and Egress to and from subject property �'
described as follows: c
' A triangular easement at the Northwest corner of 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 �
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as follows:
- Commencing at the Northeast corner of Section 7, Township 5 South,Range 80 West of
the Sixth Principal Meridian;
- thence Southerly and along the East line 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, 178.09 feet to the Northwest corner of said Lot A and to the true point of beginning,
- thence on an angle to the left of 100 degrees 41'47"and along the West line of said Lot
A, 65.44 feet;
- thence on an angle to the left of 90 degrees 00'00", 5.00 feet;
- thence on an angle to the left of 63 degrees 29'S1", 65.86 feet to the North line of said
Lot A;thence on an angle to the left of 105 degrees 48'22"and along said North line of
35.00 feet to the true point of beginning;
Also,
TOGETHER WITH an Easement for Ingress and Egress to and from subject property described
as follows:
A triangular easement at the Southwest corner of 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:
- Commencing at the Northeast corner of Section 7,Township 5 South,Range 80 West of
the Sixth Principal Meridian;
- thence Southerly and along the East line 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 178.09 feet to the Northwest corner of said Lot A;
- thence on an angle to the left of 100 degrees 41'47"and along the West line of said Lot
A, 95.00 feet to the true point of beginning; �
- thence on a curve to the left,having a radius of 15.00 feet,a central angle of 70 degrees
18'45",an arc length of 18.08 feet to a point of tangent;
- thence along said tangent, 58.05 feet;
- thence on an angle to the right of 176 degrees 25'33", 67.00 feet to the West line of said
Lot A;
- thence on an angle to the right of 73 degrees 53'12"and along said West line 15.00 feet,
more or less,to the true point of beginning,County of Eagle, State of Colorado
B. PARCEL B:
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A PA �
RT �F L�T A �F AMENIEI MAr �F SHEET 1 OF 2 OF VAIL VILLAGE, SECOND �
, FILING, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY
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,Russ Forrest Easement Agreement- E. onies.DOC Page 10
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT A; THENCE SOUTH
79 DEGRESS 41 MINUTES 13 SECONDS EAST AND ALONG THE NORTHELY 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
DEGRESS 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, TOGETHER WITH AN EASEMENT FOR
INGRESS AND EGRESS BEING A PART OF LOT A OF AMENDED MAP OF SHEET 1 OF
2 VAIL VILLAGE, SECOND FILING, COLTNTY OF EAGLE, STATE OF COLORADO,
MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE
NORTHEASTERLY CORNER OF LOT A; THENCE SOUTH 0 DEGREES 23 MINUTES 00
SECONDS EAST AND ALONG THE EASTERLY LINE OF SAID LOT A, A DISTANCE OF
125.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 73 DEGREES 30
MINUTES 12 SECONDS WEST A DISTANCE OF 156.13 FEET TO A POINT OF
INTERSECTION WITH THE WESTERLY LINE OF SAID LOT A; THENCE SOUTH 0
DEGREES 23 MINUTES 00 SECONDS EAST AND ALONG WESTERLY LINE A
DISTANCE OF 29.15 FEET; THENCE SOUTH 73 DEGREES 30 MINUTES 12 SECONDS
EAST A DISTANCE OF 156.13 FEET TO A POINT OF INTERSECTION WITH THE
EASTERLY LINE OF SAID LOT A; THENCE NORTH 0 DEGREES 23 MINUTES 00
SECONDS WEST AND ALONG SAID EASTERLY LINE A DISTANCE OF 29.15 FEET TO
THE TRUE POINT OF BEGINNING,COUNTY OF EAGLE, STATE OF COLORADO.
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EXHIBIT B
LEGAL DESCRIPTION OF BENEFITED LAND
� 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 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 an 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 beginning;
- thence on an angle to the left of 73 degrees 53'12", 156.13 feet to the West line of Vail
Road;
- thence on an angle to the right of 73 degrees 53'12"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
00'15",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", 1827 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.,mare or less.
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EXHIBIT C
DEPICTION OF BALCONY EASEMENT AREA
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EXHIBIT D
LEGAL DESCRIPTION OF BALCONY EASEMENT AREA
[TO BE DETERMINED]
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NINE VAIL ROAD
Condominiums in Vuil Village
September 10,2003 Forrnerly tlie Holiclay House
Mr. Russell Forrest
Director of Coi:1r„n;,i;��e•:-�'.opment
Town of Vail
111 South Frontage Road West
Vail CO 81657
Re:Holiday House/Nine Vail Road Condominium Parking
Dear Russell:
Thank you fo� ihe recent letter regarding the Town's position on the access and parking associated with
Holiday House which have been historically located across and/or on the adjacent Holiday Inn parking lot.
Although yow�letter seems to be, in effect, an attempt to rule on whether or not Holiday House has the legal right to
park on Holid;ay lnn eround, we do not see that type of determination as being the role of the Town of Vail. Rather
the role of the Town is to review the historical land use commitments which were made in association with
developments approved by the Town, and to avoid unjust and illegal termination of rights which have been
historically re�cognized. Because legal title to parking and access rights did not seem an issue during our previous
communications, which related to zoning and land use regulations, legal title was not dealt with. Based upon your
recent letter, actual rights to parking and access now seem to be the focus of the Town's concern. Because the Town
may feel that it needs legal justification for recognizing the access and parking rights of Holiday House, this letter
will provide t}ie historica] and current basis for the position of our Association and owners.
In th� case of the parking for the Holiday House, the original and historic calculations developed by the
original owner of both Holiday House and Holiday Inn, and relied upon by the Town of Vail in connection with the
satisfaction a1'the land use regulations in effect at the time included certain parking and access routes which were
located and maintained on the Holiday Inn parkin� lot. This occurred at the behest of the developer of both
properties wh�n There was no division of the property. The parking rights serving the Holiday House at the time of
its development in approximately 1972 were required in order that the underlying property could be developed and
were, therefore, appurtenant to that property. At the time the Holiday House was divided (both by lease and by
deed), the use of the Holiday Inn parking lot for access and parking continued and compliance with land use
regulations in effect at that time required that the associated parking and access rights accompany the lease and
conveyance oPthe condominiums. The Holiday House and the Holiday Inn were, in fact, under identical ownership
until 1983 and identical management until 1989, and the minutes of the Holiday House Condoininium Association
in 1.978 (wheri ownership and management were identical and the condominiums were held under leases)confirmed
that the Holid��y Inn parking lot was available for the use of Holiday House occupants.(pages 1 &4 of those minutes
follow this letter).
When the Holiday House property was deeded out to individual owners in July, 1983, each deed conveyed
to the grantee a co�:u�n�ini�.::r; �nit witl� its appurtenances. An example of one of those deeds, which seem to have
been identical to one another except with respect to the respective property description aud the grantee, follows this
letter. Each deed provides that title to a condominium was conveyed
TOG�'THER with all and singular the hereditaments and appurtenances thereto belonain�, or in any wise
appertainina, . . . (Emphasis added)
As an appurtenance to the Holiday House properly, the ri�ht to uses historically associated with and appurtenant to
the Holiday House passed to each owner of an individual Holiday House condominium unit.
You have indicated that the Town of Vail will not reco�nize any parking rights of Holiday House or its
owners on the Holiday Inn property because there exists no written document conveying those rights. You seem to
acl:nowledge the fact that the Town has, in the past, recognized and relied on the parking rights with which we are
9 Vail Road • Vail, CO 81657
soo/ s72-7�21 970/479-7100
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concerned in making land use decisions related to this property, but now the absence of a written document is relied
upon in the�T��wn's decision to depart from its past analysis and practice.
Althuugh no written document has been discovered formally dedicating the parking and access rights with ,
which we are dealing, the validity of such rights has been discussed in a recent Colorado Supreme Court case which
has been brou;ht to my attention. ln Lobato vs. Tavlor (copy enclosed), the Supreme Court recognized that
easement rights associated with certain property, whicli liave Ueen historically used by the owners of that property
and upon which the viability of that property depends, are to Ue recognized, notwithstanding the lack of formality of
the arrangemE,nt. Although the Lobato case involved agricultural lands, the principle is the same. Like the Lobato
lands which depended on the Taylor lands for viability, and the Lobato owners who historically used the Taylor
lands, the Holiday House and its owners have historically depended upon and used the Holiday Inn parking lot for
parking and access both for practical purposes and for satisfaction of regulatory requirements of the Town of Vail.
Under such circumstances, without regard to adverse possession issues or any temporary agreements which were
entered into for the purpose of providing interim evidence of certain rights, t11e Holiday House has certain rights
which should be recognized by the Town of Vail in determining the interrelationships of the properties with
reference to its current regulatory scheme.
Based upon the factual background with which we are working, it seems apparent that (a) the historic
conduct of tl�e parties, (b) the use of the Holiday Inn pi•operty, (c) the dependence of the Holiday House
development upon parking on and access across the Holiday Inn parking lot for compliance with land use regulation,
and (d)the reliance ot Holiday House owners and occupants upon the use of the Holiday lnn parking lot have each
established the right of Holiday House owners to use that property for parking and access.
Based upon tl�is analysis, we request (a) that you reconsider the Town's past position that Holiday House
has no rights within the context and framework of the Town's land use re�ulations relating to parking and access on
or across the Holiday Inn property, and (b) that the Town of Vail require that any development of the Holiday Inn
property preserve and respect those rights upon whose creation the development of the entire properiy(Holiday Inn
and Holiday House)depended.
Very truly yo�urs,
/�".���o'�j—,+�. ✓''l-'�-,*�L'yc.��G,�
, � J
Holiday House Condominium Association d/b/a Nine Vail Road Condominiums
Gwendolyn G. Scalpello,President
Cc: Mr.lLudwig Kurz
Mr.lftod Slifer
Mr. 1Jick Cleveland
Ms. Diana Donovan
Mr. 1Bill Jewitt
Mr.Greg Moffet
Mr. Chuck O�ilby
Owners, Holiday House Condominium Association
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9�$ Colo. 71 P3CIFIC REPORTER, 3d SERIES
Campisi; Hugh K. Denton; ftobert Paul be
Eugene LOB�,TO; Zack,Bernal; Gabrieli- Resteli; Eugene J. Kafka; �,vis l�T. Qp
ta Adeline Espinosa; E�dward Espinosa; Anderson; Clifford R. Jenson; Don W.
Pete E. Espinosa, Jr.; Corpus Gallegos, Jacobs; R.aymond E. Gauthier; Francis �•
by and through his conservator Yvette P. Heston; and I3oward G. Frailey, Re-
Gallegos; Gloria Galle;os; Rupert spondents. na�
Gallegos; Raymond Garcia; Charlie �io. OOSCa"2i.
Jacquez, Jr.; :�dolph J. Lobato; Bonifa- 3�
cio "Bonnie" Lobato, by and through Supreme Court of Colorado,
his Conservator Teresa Lobato; Carlos En Banc. n�
Lobato; Emilio Lobato, Jr.; Jose F. Lo- clai
June 2=�, Z002. wer
bato; Presesentacion J. Lobato; Gloria ------
:l'Iaestas; Norman YIaestas; Robert ten:
"Bobby" VIaestas; Raymond J. Vfaestas; Successors in title to original settlers of accE
Eugene Vlartinez; l�Iark :l'Iartinez; �,ga- Me�dcan land grant .brought action against row
tha :l'Iedina; Gilbert "rindres" _l'Iontoya; landowner who had fenced adjoining moun- ben�
Shirley Romero Otero; Eppie Quintana; tain property, seelnng rights of access for pre;
Lucille Samelko; :�rnold Valdez; Ervin grazing, hunting, fishing,. tanbering, tire- men
� L. Vigil; Larry J. Vigil; Michaei J. Vig- wood, and recreation. The District Court, q, p
il; Billy?,lire; Robert Atencio; Frances Costilla County, Mar C. Wilson, J., dismissed i
D. Berggran-Buhrles; Jose Fred Car- complaint, and successors in title appealed. acce
son; Elmer �'Ianuel Espinosa; �Iarguri- The Court of Appeals, 832 P2d 1011, af- origi�
to Espinosa; Vloises Gallegos; Ruben firmed. On grant of certiorari, the Supreme adjo:
Galiegos; Richard J. Garcia; l'Ianuel Court, 876 P.2d 1210, reversed and remand- fencu,
`Gardunio; Ruben Herrara; Jeffrey Jac- ed. On remand, the District Court, Costilla settl,�
• ':;r,.quez; Adelmo Kaber; Crucito iVlaes; County, Gaspar F. Perricone, J., dismissed the �
- ; Daniel 1'tartinez; David l�Iartinez; Jesse complaint and denied land��vner's motion for deve.
:l'Iartinez; Leonardo Martinez; Rosendo attorney fees. On cross-appeais, the Court of
l'Iartinez; Solestiano l�Iartinez; Alfonso Appeals, 13 P.3d 821, affu�med. On grant of �• E'
Vledina; Gilbert Medina; Leandardo certiorari, the Supreme Court, Mullarkey,
Yledina; Loyola Medina; il�Iarvin 1'Iedi- C.J., heid that: (1) successors in title to oripi_ mentl
na; Orry Viedina; Raymond N. D'Iedina; nal settlers had a prescriptive easement on erencl
Rudy il�lontoya; Gurtrude C. Olivas; �oining mountain property; (2) successors �
Eppy Wayne Quintana; Robert Romero; in title to ori�inal settlers had an easement �'. E`I
Shirley Romero; Anthony Sanchez; by estoppel; (3) successors in title to original 1
Bonnie Sanchez; Eugene Sanchez; settlers had an easement from prior use• and strue
Evan Sanchez; James Sanchez; Jose G. (4) scope of ri�hts of successors in title were � Cana
Sanchez; Rutino Sanchez; S.R. San- limited to pasture, firewood and timber. �O�
chez; Yernon Sanchez; Ronald A. San- Reversed and jurisdiction retained. benef
doval; Elesam Santistevan; Daniel Seg- ber o
ura; Floyd R. Solan; Carolyn Taylor; Martinez, J., dissented in part and filed revea
Sam Valdez; l�Iartha Vialpondo; ]oe P. opinion. ment,
Vigil; And Walter Vigil,Petitioners. Kourlis, J., dissented and filed opinion in � with r
which Rice,J.,joined. their
�' terprE
Zachary TaYLOR, as esecutor of the Es- conte�
tate of Jack T. Taylor, Jr., deceased; the 1. Easements a3(1�
Taylor Family Partnership; J. Hoy r�.n easement can be in gross or appurte- � 7. Ea
Anderson; il�larvin Lavern Stohs; nant; an easement in gross does not belong Wa
Edythe Kelly Stohs; Charles W. Gelder- to an individual by virtue of her ownership of Ii
man; William F. Phinney; Harian A. land, but rather is a personal right to use , nal se
Brown; Dena F. Fuhrmann; Jimmy C. another's property,while an easement appur- � rights
Crook; Freeland D. Crumle3; Joseph P. tenant runs with the land and is meant to a erty tt
. _ _ . _ - ... . _ � - - . _.. - _, _ ,.�
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f
I
� LOBATO v, TAYLOR coio. 939 ;
Cite az 71 P.3d 938 (Colo. 2002)
t Paul ) benefit the property, or an owner by virtue pasture, water, firewood, and timber in 150
�is M. of her property ownership. year old document granting original settlors
�on W. � access rights was a reference to property
2. Easements a36(1)
rancis ;� which included fenced mountain property,
,y� ge_ An easement is presumed to be appurte- Where successors to original settlors accessed
� nant, rather than in gross. fenced property for over one hundred years
� 3. Easements a3(1) to exercise rights outlined in document, re-
sources listed in document were only avail-
� Access rights successors in title to origi- able in fenced property, and deed which
nal settlers of Mexican land grant were �.ansferred property to landowner subjected �
� claiming in adjoining mountain property property to all rights of way and claims of '
were best characterized as easements appur- �ocal people to "pasturage, wood, lumber and
tenant to the land, as under Mexican custom so-called settlement rights."
access to common land was given to sur-
lers of rounding landowners, the access was used to 8• Easements<�3(1)
�gainst I benefit the use of the land, and there was a �'aters and Water Courses«156(2) •
moun- � presumption in favor of appurtenant ease- Document granting access rights to orig-
•ss for ments. inal settlers of Mexican land grant to adjoin- '
• �'e' � ing mountain property for pasture, water,
Court, 9. Public Lands«203 firewood and timber was intended to create
nissed � Mexican law could not be a source of permanent rights that ran with the land,
�ealed. � access rights claimed by successors in title to where access to common areas was an inte-
1� �' original settlers of Me�acan land grant to gral feature of the settlement system grantor
preme � adjoining mountain property that had been in document was operating under, and agree-
mand- � fenced off,where predecessors in title did not ment by which granto�'s immediate successor
'ostilla I settle on grant until after land was ceded to obtained title to mountain property provided
nissed ) the United States, and thus their use rights �at settlement rights conceded to settlers "
on for � developed under United States law. were confirmed by successor.
�urt of 9. Easements«15.1
ant of I 5. Evidence a448 '
arkey, � The question of whether or not a docu- 'I'hough 150-year-old document written
orig-i- � rnent is ambiguous may be answered by ref- � Spanish by French Canadian purporting to
:nt on � erence to e.�ctrinsic evidence. grant to original settlors of Me�can land
grant access rights to adjoining property did �
�ssors ' 6. Evidence c�450(3) not comply with nuances and technical re-
c.
�ment •
,��� � - Extrinsic evidence would be used to con- 4�'ements of the conveyance of property
_• and I strue document written in Spanish by French ��hts, law of implied easements recognizes
were � Canadian pu.rporting to grant to original se� that rights may be implied even though they
tlors of Mexican land grant enjoyment of the were not properly e�cpressly conveyed.
benefits of pastures,water, firewood and tim- 10. Easements a12(1)
ber on adjoining land, as e;rtrinsic evidence Frauds, Statute of«60(1)
I filed revealed ambiguities in 150 year old docu- � easement is created if the owner of
ment, document was ambiguous on its face the servient estate eit er enters into a con-
.ion in I with respect to where settlors could exercise �-act or makes a conveyance intended to
� theis rights, and docurnent could not be in- create a servitude that complies with the
terpreted without putting it in its historical Statute of Frauds or an exce�tion tn_ th�
` context. Statute of Frauds. Restatement (Third) of
� Property, § 2.1.
��_ i. Easements a12(1)
�elong � Waters and water Courses c�156(2) 11. Dedication a1
hip of In action by successors in title to origi- Easements«5
o use , f nal settlers of Mexican land grant seelang Estoppel c�52(S)
ppur- � rights of access to adjoining mountain prop- Servitudes that are not created by con-
mt to � erty that landowner had fenced, reference to tract or conveyance include servitudes creat-
�. • '
�-
_"' .� '� . . . �.^r � n .—�..r - r�v^�.. � , ^w�sw�,'f.I`PU'�T. . .s1�^'�Tw�a"tlT�T^���F.�1'�'a�"^.-w��..-.�- .
� ' . . , . . .. . � .). ... . r 1 , ' ' � . .
� . � .� . .'1 � 1 �� (`1 ('� � � ,f� Y .' h � w1V .� � -
' . ' � � � � ' ' .. . .r� i��� � � . � ._ . . . . . . . ...�. r .� ... . ..-'. ��. . � ..,. . ... . i. . . . . . . . . ' � . . . �
. . . ' � , .. � - . ,� t,� . ' � � - � r�. �. . • , . � . ... . - ..�:�.; .. .
_ ...'- _'� .__...� -_�__..:._'___.�..�r.:..:_ --_,_.���__.......�..��.��..,�.�_ -; -..�..,.-z.,- .��.�.1__.....
. 940 Colo. 71 PACIFIC KEPORTER, 3d SERIES
ed by dedication. r�escrintion and estoppel. estates were once under common ownership; ' �,
Restatement(Third) of Property, § 2.1. (?) the riEhts allee�ed were esercised n 'nor to �' � {r
12. Easements<r 15.1 1 ' the severance of the estate; (3) the use was '
not merely temporarv: (4) the continuation of '=
Implied servitudes may be based on pri- this use was reasonablv necessarv to the
or use, map or boundary descriptions, neces- eniovment of the parcel: and (5) a contrarv '�
fat
sity or other circumstances surr—n��ling the �tention is neither e.Ypressed nor implied. � �,
conveyance of other interests in land, which Restatement(Third) of Property, § 2.12.
a ve rise to the inference that the_parties o�
intended to create a servitude. Restatement 19. SVaters and Water Courses al?i 'u'
(Third) of Property, § '?.1. :�ll water in Colorado is a public re- �
mc
13. Easements a� source, dedicated to the beneficial use oi' �.
:�n easement by prescription is estab- Public agencies and private persons wherever suc
they might make beneficial use of the water
lished when th� prescriptive use is: (1) open under use rights established as prescribed by not
or notorious; (..) continued without effective � his
interruption for the prescriptive period; and law.
(3) the use was either adverse or pursuant to z0. Easements a15.1 �5�
an attempted, but ineffective grant. Colorado law recognizes implied ease-
� 14. Estoppel c�83(1) ments in the form of profits. title
� „ A court can imply an easement created ' ��
,y 'y? bv estoppel when: (1) the owner of the ser- 21. Easements a15.1 tion
��' '�" vient estate permitted another to use that Successors in title to original settlers of of
`,,�.i'�� ��v land under circumstances ui which i. w� i1'Iesican land grant had implied easement on ; whe
,'• �U reasonable to foresee that the user would adjoining mountain property, where there �itle
was rior unit of title between successors' ered
,^r . subytantially change position believing that P y on I
�f`� ,;� the permission would not be revoked; (2) the �itle and mountain land owner's title, access
t'� , ,i' user substantially c ange position in rea- to common areas was an integral feature of C.R.
�
!1' sonable reliance on that belief; and (3) ir�jus- settlement system of Mexican land grants, �s �
tice can be avoided only by establishment of access to resources of common land was not
a servitude. orily a typical but necessary incentive for ,
settlement, original owner of land grant title
15. Estoppel c�87 granted settlers access to mountain land, �n'
Whether reliance is justified for pur- original owner's immediate successor ac- � Perfe
poses of an easement by estoppel depends �owledge in agreement that mountain land � �bli:
upon the nature of the transaction, including was subject to settlers' access rights, succes- ! docui
the sophistication of the parties. sors to original settlers accessed mountain ' �nt
land for over one hundred years, and deed to ; evide:
16. Estoppel a83(1) mountain land's owner subjected land to ac- settle
Deception is not required in order to cess claims of local people.
establish an easement by estoppel. 27. E
17. Estoppel a83(1) 22• Easements a8(1) I;
An easement by estoppel is an equitable ��ough adversity is a necessary requi- � nal se
remedy; it reco�nizes that when a landowner site for adverse possession claims, it is not � mount
induces another to change position in reli- required for a prescriptive easement. sors'
succes
ance upon his promise, he is estopped from 23. Easements a8(1) add sc
then denying the existence of the ri�hts sim-
ply because they did not meet the formal �dversitv is not required to establish a �' where ,
conveyance rules. prescriptive easement when other evidence � implic� '
— — makes clear that the parties intend an ease- � owner
13. Easements a15.1 ment, but fail because they do not fully artic- inform i
An easement implied from prior use is ulate their intent or reduce heir agreement claims I
created when: (1) the servient and dominant to writing, or because they fail to comply � erwise• I
- $ I
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. ._ _.�." "' -I - . ' . . _. . . . . . . ... -_. . .. .. __ � . ... �. . . . _ . . . .. . .... . . .
LOBATO v, TAYLOR coio. 941
Cite as 71 P.3d 938 (Colo. 2002)
mership; with some other formal reauirem nt�imnosed 28. Estoppel «87
prior to in the jurisdiction. , Predecessors in title of owner of moun-
use was � tain land that was originally designated as
iation of ?�• Easements a5 common land during settlement of Me�acan
to the Use of mountain land by successors in land grant permitted settlers of adjacent ara- �
contrary title to original settlers of Mexican ]and ble propert}� to substantialh� chan�e their �4
implied. � grant was open and notorious, for purposes o 'tio believing that pem►ission to access
.12. I of establishing a prescriptive easement, when common land would not be revoked, for pur-
� successors' use of land was not only well poses of esta.blishing an easement by estop-
'7 known by predecessors in title of owner of pel in action by successors in title of settlers,
blic re- � mountain ]and, but such predecessors even where access to resources of common land
use of � directed the location of grazing by settlers' Was not only a typical but necessary incen-
�herever � successors, and owner of mountain land had tive for settlement of Mexican land grants,
e water notice of successors' daims from language in access to wood on ]and was necessary to heat
^ibed by his deed. homes, access to timber on land was neces- .
sary to build homes, access to grazing was
25. Easements a7(5) necessary for maintaining livestock, and �
Use of mountain land by successors in deeds associated with common land and sub-
d ease- title to original settlers of Me�ican land sequent actual practices showed that access
grant continued without effective interrup- rights were intended.
tion for the prescriptive period, for purposes 29. Estoppel c�87
tlers of of establishing a prescriptive easement, Settlers of arable property in Me.�acan
nent on �'here successors and their predecessors in land grant substan ' y rhan�ed their�,si-
� there title grazed livestock, harvested timber, gath- �on in reasonable reliance on belief that per-
ered firewood, fished, hunted, and recreated �ssion to access common land would not be '
:essors' on land for more than 100 years. West's
access revoked, for purposes of establishing an
�.ture of C.R.S.A § 38�1-101. easement by estoppel on common land in .
ants, action by successors in title of settlers
vas not 26. Easements a5 against owner of common land, where set-
ive for Use of mountain land by successors in tlors moved onto arable land and established
grant title to ori�inal settlers of Mexican land permanent farms.
i land, grant were �ursuant to an intende but im- �
perfectly executed �rant, for purposes of es- 30. Estoppel c�83(1)
or ac- In'ustice could be avoided onl�� bv estab- �
in land tablishing a prescriptive easement, where --�— ;
document executed by original owner of lishing a servitude over land that served as
succes- common land during settlement of Mexican
�untain grant though imperfect as an express grant
e�zdence intention to grant access rights to land �-ant, for purposes of establishing an
leed to easement by estoppel in action by successors
to ac- settlers.
in title of origina] settlers of arable portions
27. Easements«61(S) of land grant, where under Me.lican laa�
In action b}� successors in title to origi- �ant to fee owner would have been revoked
if settlement did not succeed, fee owner at-
requi- nal settlers of Mexican land grant, owner of �.acted settlers by convincing them that they
is not mountain land had adequate notice of succes-
would have access to common land to obtain
sors' prescriptive easement claim, though
successors did not formally file for leave to �'ewood, timber and pasturage that they
needed in order to survive, and a condition of
add such claim until 11 years into litigation, subsequent conveyances of common land a�as
blish a where all of their factual allegations ciearly that subsequent owners would honor access
idence implicated prescriptive rights, and deed to
i ease- owner when he purchased land specifically �'gh�� '
r artic- informed owner that land. was subject to 31. Easements«15.1
:ement claims of local people by prescription or oth- Easement bv prior use was established
�omply erwise. over mountain land that served as common .
,. :
.. .�..._ . ����..�• �..� FYr..�.-��+�..�s.��.-.�.w���.-��.� r� �i-�.- r.-T-rr.�m-"^�T+�rv+'f-a�.�rr r--y��..-�.--�� .�
f - I , � ..''. ' ' i,: • � 1. .. . � ' ' . , .
. . . , .. . � . . . .. . � . . .. i. . . . . � _... ,L � . � . . .
� �
.
-. -.-- .__.. _._ ,:.--- -. _...._.__._.,. _ ___.-�------._.Y..._.____�,.,�.r:.__.;...__-=__-_-.._..__...____..___Y._�.__s_......�..,,�_.,.�. -------�__
. � ;
942 Colo. 71 PACIFIC REPORTER, 3d SERIES
land during settlement of �ble.�ican land Federico Cheever, Gorsuc}� kirgis, LLP,
grant, in action by successors in title of set- Loretta P. Mart:nez, Denver, CO3 Attorneys ��
tlers of arable property of'land grant, where for �micus Curiae Colorado Hisparuc Bar tr
before settlement arable lahd and common :�;sociation. �
]and were originally under the common own- Pr
David J. Stephenson, Jr., Denver, CO3 At- � pe
ership of the fee owner of entire grant, prior torney for Amicus Curiae Rocky Mountain ` th�
to severance of the estate it was necessary Human Rights Law Group. ; eY;
for the settlers to esercise their access rights
to common land in order to obtain fire�vood, Chief Justice YIULL�RKEY delivered the ' �
iimber and pasturage needed to aurvive, ex- Opinion of the Court.
ercise of access rights was not merel}�tempo- The history of this property rights contro-
rary and was reasonably necessary to the I
versy began before Colorado's statehood, at a g.t.
enjoyment oi the arable land, and a contrary a
time when southern Colorado was part oi acr�
intention was neither e.Ypressed or implied. �e�dco; at a time when all of the parties'
day
�2. Easements a42 lands were part of the one million acre �.a�
Scope of implied profits that successors Sangre de Cristo grant,,an 1844 Yle.�ncan o�g
land grant. Here, we determine access �,et
in title to settlers of arable land in Me:dcan ��hts of the owners of farrrilands in Costilla
land grant had in adjacent mountain land land
� that served as common land were for p�_ County to a mountainous parcel.of land now cess
known as the Tay(or Ranch. :�s successors Beai
ture, firewood and timber, where document in title to the original settlers in the region,
esecuted by fee owner of entire land grant the landowners e��ercised rights to enter and In
referenced pasture, hrewood and timber but use the Ta lor Ranch ente:
not hunting, fishing and recreation, such y property for over one
hundred years until Jack Taylor fenced the go, f
rights were the same rights fee owner of land in 1960 and forcibly excluded them. �ies.
entire land granted to United States in fort These rights, they assert, derive fr�om �blesi- and '
lease, and such rights were likely the most can law, prescription, and an e.�cpress or im- g°�� �
necessary rights for the suxvival of the origi- plied grant, and were impermissibly denied ��'
nal settlers. (Per Mullarkey, C.J., with two when the mountain land was fenced_ the L
justices concurring.) Neva�
We are reviewing this case for the second
time in this protracted twenty-one year liti- ��
ation. In the first hase of this liti ati U��
Eley, Goldstein and Dodge, LLC, Jeffrey g p g °D� ,� prope
A. Goldstein, Otten, Johnson, Robinson, Neff the trial court:dismissed the plaintiffs' claims,
holding that a federa] decision in the 1960s -� �1�-'`''�'� �ked
3c Ragonetti, PC, William F. Schoeberlein, r
Robert Nlaes, David Yfartinez, Walters & on the same issue barred their suit. We of Ne
Joyce, PC, Julia T. Waggener, Kelly, Ha- reversed and remanded, holding that the no� k�)��`'�i ri hts
glund, Garnsey & Kahn LLC, Norman D. �ce given in the federal case did not comport � the �
_._ ,
Haglund, Don Hiller & Galleher, PC, Watson a''th due process. fihe subject matter of the ' Con
_,__... �.,
Galleher, Elisabeth Arenales, Denver, CO3 current appeal is_the_landow�aiers'_substanti�e_ �_ to the
Attorneys for Petitioners. claims of rights. The trial court and the of Con
court of appes]s held that the landowners
Wolf & Slatlan, PC, Albert B. Wolf, Ray- failed to prove rights on any of their three In tl
mond P. Micklewright, Jonathan L. Madison, theories. ' recruiG�
Denver, CO3 Attorneys for Respondent. We find that evidence of traditional settle- ' Portion
Richard Garcia, Denver, CO3 Richard ment practices, repeated references to settle- leased
Reich, Costa Mesa, CA, Attorneys for Amici ment rights in documents associated with the States
Curiae Bi—National Human Rights Commis- Sangre de Cristo Fort M
grant, the one hundred settle c
sion, International Indian �eaty Council, year history of the landowners' use of the
National Chicano Human Rights Council, Co- Taylor Ranch, and other evidence of necessi- 1. The
mision De Derechos Humanos De Seminario ty, reliance, and intention support a finding allowe�
Permanente De Estudios Chicanos Y De of implied rights in this case. While we essen[i
co —!0:
Fronteras. reject the landowners' claims for hunting, 36—i o 1
• . . . -- - , •. . , , • . . • -�.,. . . -- _. � . _ _._ I
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•_��.• � " '� _ ' '.:u_�.u.��......._..�._..... .c�.�..�..�.�.....,..�.._�.�....�"'_"�_�... _.. .,..�r......_._�_._�_....�.�"_�._ _' _".._. . .....
� �I
,��. .
� LOBATO v. TAYLOR coio. 943
Cite u 71 P.3d 938 (Colo. 2002)
fishing, and recreation rights, we find that he employed was common to Spain and l�'Ie:a- �'
� the landowners have rights of access for co: strips of arable land called vara strips �;�
' grazing, firewood, and timber through a were allotted to families for farming, and �I`
� prescriptive easement, an easement by estop- areas not open for cultivation were available I.!
� pel, and an easement from prior use. Fur- for common use. These common areas were �j
'� thermore, we retain jurisdiction in order to used for grazing and recreation and as a ��
: eYamine the trial court's due process deter- source for timber, firewood, fish, and game. i'
mination. In 18G3, Beaubien gave established settlers �
� deeds to their vaz•a strips. That same year, �
� I. Facts and Prior Proceedings Beaubien executed and recorded a Spanish �I
In 1844, the governor of �lew l�Ie.�ico language docur.lent that purports to grant ''
granted two iblexican nationals a one million- rights of access to common lands to settlers
acre land grant, located mainly in present- on the Sangre de Cristo grant. f Beaubien h�
day southern Colorado (Sangre de Cristo Document). In relevant part, this document
grant), for the purpose of settlement. The ,��'antees that "all the inhabitants will have
original grantees died during the war be- enjoyment ot benefits of pastures;. .water, f
tween the United States and Mexico. The tir'ewood and timber, always talang care that
land was not settled in earnest until after the one does not injure another." :
i�
cessation of the war, and Charles (Carlos) � year later, Beaubien died. Pursuant to
Beaubien then owned the ant. ''
�' a prior oral agreement, his heirs sold his [;�
In 1848, the United States and �Ie:dco interest in the Sangre de Cristo grant to '�
entered into the Treaty of Guadalupe Hidal- W�liam Gilpin, who was Colorado's tust ter- ���
�o, ending the war between the two coun- ritorial governor. The sales agreement (Gil- jj
tries. Treaty of Peace, Friendship, Limits, pin agreement) stated that Gilpin agreed to �;
and Settlement (Treaty of Guadalupe Hidal- provide vara strip deeds to settlers who had 1
go), Februasy 2, 1848, U:S.—iYiex., 9 Stat. 92?. not yet received them. The agreement fur- f
Pursuant to the treaty, Me:dco ceded land to ther stated that Gilpin took the land on con- �
the United States, including all of California, dition that certain "settlement rights before �
Nevada, and Utah; most of New Mexico and then conceded . . . to the residents of the '
Arizona; and a portion of Colorado. The settlements . .. shall be confu-med by said
United States agreed to honor the existing W�liam Gilpin as made by him." �
: property rights in the ceded territory. Rele- In 1960, Jack Taylor, a North Carolina
' vant to the Sangre de Cristo grant, Congress lumberman, purchased roughly 77,OU0 acres �
, asked the Surveyor General of the Territory of the Sangre de Cristo grant (mountain 'r
� of New Me�cico to determine what property txact) from a successor in interest to William j
rights e:osted at the time of the treaty. On Gilpin. Taylor's deed indicated that he took j
� the Surveyor General's recommendation, the land subject to "claims of the locai people �
Congress confu�med Carlos Beaubien's ciaim by prescription or otherwise to right to pas-
to the Sangre de Cristo grant in the 1360�ct ture, wood, and lumber and so-called settle- ��� �
of Confirmation. 1?Stat. 71 (1860). ment rights in, to, and upon said land." �;i
�;
In the early 1850s, Beaubien successfully Despite the language in Taylo�'s deed, he
jrecruited farm families to settle the Colorado denied the locai landowners access to his i
portion of the Sangre de Cristo grant. He land and began to fence the property. Tay- �I
leased a portion of his land to the United lor then filed a Torrens titie action in the I
States government to be used to establish United States District Court for the District II
I Fort Massachusetts and recruited farmers to of Colorado to perfect his title (Torrens ao-
, settle other areas. 'I'he settlement system tion).' Taylor v. Jaquez, No. 6904 (D.Colo. I
L The Colorado Torrens Title Registration Ac[ rens Tide Registration.�c[,see Rae!v. Taylor. 876
, allowed land ownecs to file an action that would P1d I210, 1219-23 (Colo.1994)). Because 'Cay-
i essencially quiet title to their land. §§ (18-10-1 ►or was a North Carolina resident he invoked I
� to -102, 5 C.R.S. (1952)(now codified at §§ 38- diversityjurisdiction. �
� 36-101 to -199;(Eor a full discussion of the Tor- I
1
i
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'-s
S
+�i 944 Colo. 71 PACIFIC REPORTER, 3d SERIES
I,; Oc� 5, 1965). The district court found that process and class action certification issues
' the local landowners did not have any rights before holding a trial on the merits. During
�� to the mountain tract; the Tenth Circuit the dne process phase, the court dismissed
Court of Appeals affirmed. Sanch,ez v. Tay- most of the plaintiffs. The court determined
I lor, 3i7 F2d 733 (lOth Cir.1967). that seven of the piaintiffs could pursue their
In 1973, Taylor purchased an adjoining, ��s regarding the mountain tract and that
roughly 2,500 acre parcel that was also part three of the plaintiffs could proceed with
I their claims regarding the Salazar estate.3
i of the Sangre de Cristo grant (Salazar es-
tate). Ta,ylor's predecessor in title to the Without further hearing, the court denied
' Salazar estate had also fi]ed a Torrens title class certification. The court then held a
' action in 1960 which determined that local trial on the merits.
� landowners had no rights in the estaie. To- After the trial, the court made a finding of
� gether, the mountain tract and the Salazar fact that the landowners or their predeces-
'�; estate are Irnown as the Taylor Ranch. sors in title had "grazed cattle and sheep,
�� harvested timber, gathered firewood, fished,
The current ease began in 1981. In that
� year a number of local landowners filed suit hunted and recreated on the land of the
I� in Costilla County District Court. The ]and- defendant from the 1800s to the date the
owners asserted that they had settlement land was acquired by the defendant, in 1960."
rights to the Taylor Ranch and that Taylor The trial court further found that the com-
had impermissibly denied those rights.= The munity referred to Taylor Ranch as "open
court held that the doctrine of res judicata range," and that prior to 1960, the landown-
barred the suit because the Salazar Torrens ers "were never denied access to the land."
action and the Sanche< decision regarding The court also stated that it did "not dispute"
Taylor's Torrens action were binding upon that the settiers could not have survived
i'� the plaintiffs. Rael v. Ta.ylor, No. 81CV5 ��thout use of the mountain area of the
�
i (Costilla Co. Dist. Ct. Sept. 22, 1986) (Judg- �'ant.
� � ment for Defendant on Motion for Judgment Despite theses findings, the court deter- ,
� , on the Pleadings or for Summary Judgment). mined that the landowners had not proved
.
, I�
; �` The court of appeals affirmed. Rael v. prescnptive rights because their use was not
I T¢�lar, 832 P.2d 1011, 1014 (Colo.App.1991). adverse. The court further held that the
� This court granted certiorari and reversed Beaubien Document was not an effective ex- i
. � and remanded, questioning the constitutiona] press grant of rights because it did not iden- ��
. adequacy of the publication notice in the tify the parties to the rights or the ]ocations j
Torrens action. Rael v. T¢ylor, 8i6 P2d where the rights should be exercised. Re-
12T0, 1228 (Colo.1994). We directed the trial g�'�g an implied grant by Beaubien, the i
court to detercnine which of the plaintiffs court concluded that Colorado law did not i
received adequate notice in the Torrens ac- recognize the implied rights the landowners
tion and to hold a trial on the merits for claimed. The ]andowmers appealed both the
those who did not have proper notice. Id. due process deternunation and the rulings on ,
On remand, the trial court granted Tay-
their claim of ri�hts. I
lor's motion for summary judgment on the The court of appeals affirmed. Lobato �:.
Mexican law claim. The court then bifurcat- Taylor, 13 P.3d 821 (Colo.App2000). The
ed the proceedings: it determined the due court agreed with the trial court's conclu- '�
2. Jack Taylor died during the pendenc}' of this 3. Tavlor daims that the Salazar estate is no
litieation. His son, Zachary Tavlor, stepped in longer at issue in [his case because our opinion II
� as the executor oF his father's estate. At some in Rael did not expressly discuss this properry.
point, the Taylor estate sold the Taylor Ranch to �Ne Eind that the Salazar estate is still at issue.
] another pam�. This partv boueht the land sub- • The trial court, on remand Erom Rael, continued
ject to the landowners'claims and subject to this to make findings oC Eact regarding the Salazar
litigation. For the sake oF simplicit�-,Jack Taylor estate. To the extent that Rael did not speciEical-
and his successors in title are referred to as ly address that portion of the Taylor Ranch, it
"Ta��lor"in this opinion. was an oversight.
. }
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�
� LOBATO v. TAYLOR coio. 945 �!'
Cite:�s71 P.3d 93S (Colo. 2002) �
sions regarding all three of the landowners' [1,2] An easement can be in gross or � '�
i theories. Regarding an e.rpress grant,of appurtenant. An easement in gross does not ���
rights, the court of appeals engaged in��a belong to an individual by virtue of her own- ����
� technical application of the 1863 property ership of land, but rather is a personal right i I'
, laws of the Colorado Territory. Id at 831. to use anothe�'s property. Leuritz v. Pordth
The court concluded that the document in- Fdmily Trust, 36 P.3d 120, 1� (Colo.App. '{��
; cluded neither the "christian and surnames" ?001). tln easement appurtenant, on the oth- ;;'�
of the grantees nor an accurate description of er hand, runs with the land. It is meant to
' the property to be burdened. Id Further- benefit the property, or an owner by virtue �i
more, the court of appeals noted that that of her property ownership. See Ldz� Dog, 't;
� because the document does not use the 965 P.?d at 1234. An easement is presume d ;�. !
• words; "and heirs and assigns" it does not to be appurtenant, rather than in gross. �°'
indicate that Beaubien intended any rights to Leurit�, 36 P.3d at 122; Restatement, su7�ro, !
run with the land. Id. Because the court § �•�(2).
rejected all of the landowners' substantive In this case, the landowners allege that the
ciaims, the court did not reach the question settlement rights were to be used in connec- i!
of whether the trial court erred in its due tion with their land. They argue that the '
process decision. firewood was used to heat their homes, the '-'
We granted certiorari. timber to frame their adobe houses, and the. ��;' �
b azing necessary to the viability of their
farms. 'I'he landowners also assert that the ��
II. rinalysis settlement rights were granted to their pre- �
The landowners claim rights to graze live- decessors in title by virtue of their interest in �
� stock, gather firewood and timber, hunt, hsh, their vara strips and were in fact a necessary �
• and recreate. Before discussing the sources incentive for settlement in the area.
of the settlement rights, we characterize the �3� We conclude that the rights the land- �
claimed rights in order to determine the owners are claiming are best characterized !k '
rules of law that govern them. � easements appurtenant to the land. We ��
� reach this conclusion from the evidence that �
� A The Rights at Issue under Mexican custom access to common
j The parties, at various points in the volu- land was given to surrounding landowners,•
minous brieCing of this t�venty-one year-old the evidence that this access was used to
' Iiti ation, a ee that the rights at issue are benefit the use of the land, and the presump- �
g � tion in favor of appurtenant easements. '1
most appropriately characterized as profits � i
iprendre. A profit � prendre—in modern Having established the nature of the rights ,I
i parlance, a profi�"is an easement that con- at issue, we now turn to the sources of these �
fers the right to enter and remove timber, rights. 'i►
minerais, oil, gas, game, or other substances ��
from land in the possession of another." Re- B. Sources of the Rights ''� '
statement (Third) of Property: Servitudes �e landowners argue that their settle- i� �
§ 12(2)(1998) (hereinafter Restatement]. ment rights stem fi-om three sources: Mexi- '�
�;
� 'I'hus, a profit is a type of easement. can law, prescription, and an e.Ypress or im- Ij
� This court has described an easement as"a Plied grant from Beaubien. I
� right conferred by grant, prescription or ne- Regarding the Mesican law claim, the
cessity authorizing one to do or maintain landowners claim that community rights to
Isomething on the land of another which, al- common lands not only are recognized by ;
� though a benefit to the land of the former, Me�dcan law, but also are integral to the
I may be a burden on the land of the latter." settlement of an area. The landowners fur- �
� Lazy Dog Ranch v. Telluray Ranch Corp., ther point out that in the 'I�eaty of Guadalu- •
965 P2d 1229, 1234 (Colo.1998)(quotation pe Hidalgo, the United States government
j marks omitted). agreed that the land rights of the residents
�
�
,
� .
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..,.r •� ' .. ' � .... , . ... .. �L � '.1 -. . . . - . .. -
1\.. . w `.. - . . � .. . � , ' . � � .. .
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�.r�l,', • . . � j � .� •��� ,�l � '� :��4 .I �,1•�' .�� , .^ .��y . y`.�t _ .L
.� � ' . . " t; .� -t � :'4 Y ) .��` ,° �,.?����i'�-�"C.
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i�' 946 Colo. 71 PACIFIC REPOftTER, 3d SERIES `
�I 14
�I! of the ceded territories would be "inviolably to the United States, we conclude that Mexi-
respected." Under the landowners' theory, can law cannot be a source of the landown-
the treaty dictates that the court apply Mexi- ers'claims.
can law to the 'Paylor Ranch and accordingly We disagree, however, with the court of
recognize the settlement rights. appeals' resolution of the landowners' other
� The ]andowners further argue that use cIaims. While the Beaubien Document can-
a rights can be found via prescription. For not support an express grant of rights, when
� this claim, they point to their regular use of coupled with the Gilpin agreement and other
� the Taylor Ranch land for over one hundred evidence, it supports a finding of a prescrip-
� years until the area was fenced in 1960. tive easement, an easement by estoppel, and
� an easement from prior use.
. Lastly, the landowners assert that their
, ' use rights were obtained by either an e�- 1. The Beaubien Document
� press or implied grant from Carlos Beaubien.
For this claim, the landowners rely primarily � evidence of a grant of rights from
I on the Beaubien Document. Carlos Beaubien, the landowners rely pri-
! marily on the Beaubien Document. The doc-
� The trial court dismissed the Mexican law ument was written by Beaubien in 1863, one
claim on motion for summary jud�ment, and year before his death.
after a trial on the merits, rejected the two One English translation of the document
remaining claims. The court of appeals af- reads, in part:
firmed. The court of appeals held that the plaza of San Luis de la Culebra, May 11,
Mexican law claim failed because whatever 1863.
• ri�hts may have existed at the time of the It has been decided that the lands of the
j Treaty of Guadalupe Hidalgo were subse- Rito Seco remain uncultivated for the ben-
� „ quently e.��tinguished by Congress's 1860 Act
� of Confirmation. Lobato, 13 P.3d at 829. efit of the community members (gente) of
; ( The court further held that the landowners the plazas of San Luis, San Pablo and Los
could not claim prescriptive rights because B�ejos and for the other inhabitants of
� their use of the Taylor Ranch was not ad- these plazas for pasturing cattle by the
� i verse. Id at 834-35. Lastly, the court held Payment of a fee per head, etc. and that
that the Beaubien Document fails as an ex- the water of the said Rito remains parti-
•press grant of rights and that Colorado does tioned among the inhabitants of the same
I not recognize implied easements in the form P��a of San Luis and those from the other
� 1 of profits. Id at 832-33. side of the vega who hold lands almost
_ , adjacent to it as their own lands, that are
� [4] We agree that the landowners cannot not irrigated with the waters of the Rio
clairn righ�s under Mexican law. Their pre- Culebra. The vega, after the measure-
decessors in title did not settle on the Sangre ment of three acres from it in front of the
de Cristo grant until after the land was chapel, to which they have been donated,
� ceded to the United States� and thus their will remain for the benefit of the inhabit-
use rights developed under United States ants vf this plaza and those of the Culebra
� law. Meadcan land use and property law are as far as above the plaza of Los Balle-
hi�hly relevant in this case in ascertaining jos. . .. Those belo��the road as far as the
the intentions of the parties involved, see narrows w-ill have the right to enjoy the
infra. However, because the settlement of same benefit. . . . �1Vo one mayJ�l�,ce any
the grant occurred after the land was ceded obsta,cle or obstruction to anyone in the
� 4. It is evident kom the record that permanent admit that "[t]he erection oC Fort Massachusetu
� settlement oF the Sangre de Cristo grant did not in 1852 ... marked [he start of[he settlement of
beein until after 1848. Although some settle• the area in earnest" a�d that the permanent
� ment was attempted prior to the Treaty of Gua- , se[dements were established as follows: "Cos[il-
dalupe Hidalgo, those settlers did not succeed. Ia and Garcia in 1849: San Acacio and San Luis
� due, in part, to Indian hostilities and aggression in 1850; San Pab(o in 1852; San Francisco and
between the United States and Mexico. The
E La Valle in 18�4; and Chama in 1855."
� plaintiEfs, in their second amended complaint,
, . �
� • � . � � • ' � , � � ' . � � � ... . .. . .c..� . , � " � , . .
..- . � , _ . , . . . _ . , . .. . . ... � � , ... „ . . , .... ,. , . . y� ... � . �- . � � 'r � . . . � � _., , e . . . � . .,
. - S T�. � J� -�SIA{ 'V4�� \ •�t��.w1...�. �T� _ 11 _ ' t.. .. � . . . r . .
� t. . ����.- .� .��.1�"a.� i -4�i�.r tv�i .�c T��l� c� •"'L .I� . • , ... .
t'.,''�`;" ;1—:.'�� 1� rt-. ��.r , .', . ... . t- • ' `�,., �t� .
. .. � �;. � ' , , � .
- �,�.'�,'-. r: ,'--� - �.� �.r..,.•c..._..,r..... _.�_ � - r..._.�.�.�-�_,.�:.r.........._�..._.�_.�_.__..�.. .' ' . .
•� y A:I� . � . . .
i
i �
� LOBATO v. TAYLOR calo. 947 �
Cite as 71 P.3d 938 (Colo. 2002) ;I I
. enjo�ment of his legitimate rights .. . . [5] Extrinsic evidence is relevant in in-
� Likewise, each one should take scrupulous terpreting the Beaubien Document. In Ldz� �
care in the use of water without causing Dog, we articulated when a court could esam- '�
' damage with it to his neighbors nor to ine e.Ytrinsic evidence in order to ascertain ��i��
anyone. According to the corresponding the nature of an easement. In that case, we 'I
rule all the inhabitants �urill have en�oi- e.Ypressly followed the Restatement and con- f,,:
, � J
ment of benefits of pastures, water, fire- cluded that "[o)ur paramount concern in con- �;�
•zvood ¢nd timber, ¢laua�s taking care that s�ng a deed is to ascertain the intentions I,
one does not injure another. of the parties." Lazy Dog, 96a at 1235. We �
also recognized that "circumstances sur-
(Emphases added.) rounding the grant may be relevant to inter-
The landowners assert that this document Preting the language of the grant." Id at I
evidences an e�cpress grant of settlement 1236; see aGso Restatement, . supra,
rights on the Taylor Ranch land. The trial � '�•1(1)(noting that an easement "should be �
court concluded that the Beaubien Document �terpreted to give effect to the intention of
did not vest any rights in the Taylor Ranch.
the parties ascertained &om the language ��
The court noted that although the document used in the instrument, or the circumstances �
lists rights of pasture, water, tirewood, and ''�TOUnding creation of the servitude, and to I:;.
timber, the only locations specified for access carry out the purpose for which it was creat- i.�;
are the Rito Seco and the vega, two areas ed"). Moreover, the question of whether or I,
that the p�u-ties agree are not part of the not the document is ambiguous "may be an- Ii4
swered by reference to e,rtrinsic evidence." �f
Taylor Ranch. The trial court did admit Lazy Dog, 94i5 P?d at 1235. 'f
extrinsic evidence to determine whether t
I there was a "latent ambiguit�' in the docu- ��
ment. However, because the court ultimate- �6] Here, we look to extrinsic evidence to �
construe the Beaubien Document for two
ly found that the document was unambigu- reasons. First, as Ga�y Dog tells us, e.�trin- �
, ous, it ruled that e.ctrinsic evidence could not sic evidence may reveal ambiguities. Seo- '
be considered in interpreting the document. ond, the document is ambiguous on its face ol
�
The court of appea.ls affirmed. Gobato, 13 `h'ith respect to where the landowners could
; P.3d 821. The appeals court agreed that the exercise their rights.
! Beaubien Document was ultimately unambig-
� Lazy Dog tells us that e.ctrinsic evidence
� uous and that the trial court properly treated may reveal ambiguities in modern docu-
, the e.�ctrinsic evidence of Beaubien's intent. ments; that principle can be only more true "
I Id at 832. The court then applied 1863 �th respect to the Beaubien Document. We � .
� Colorado property law and concluded that �e attempting to construe a 150 year-old �!�
, the Beaubien Document did not meet the document written in 5panish by a French �
formai requirements for conveying rights to Canadian who obtained a conditional g�z�ant to ��
the landowners' predecessors in title. Gobd- �n enormous land area under Me:cican law ! •
tq 13 P.3d at 831. Moreover, the court held �d perfected it under American law. Beau- 'I
that profits must be expressly granted and bien wrote this document when he was near �
I thus rejected any claim of implied rights. the end of his adventurous life in an apparent jI
Id at 832-33. attempt to memorialize commitments he had r)
j made to induce families to move hundreds of �j
We agree that the Beaubien Document �es to make homes in the wilderness. It I
I does not meet the formal requirements for
an espress grant of rights. However, we Would be the height of arrogance and nothing �
i but a legal fiction for us to claim that we can
find that the document, when taken together �terpret this document without putting it in i
� with the other unique facts of this case, its historical conte.�ct. ' .
establishes a prescriptive easement, an ease-
� ment by estoppel, and an easement &om For the most part,the document is reason-
� prior use. ably specific in identifying places where �
� iI. ' '
a�.:x'w'L< ' .. .. �-'.� , . -' . , . . }:t:.�,;yt�:, _ . '��.'.r•--:r••,,,1-t " �♦. . . . - . - . ..,- . .
:r' . .. . . ' � .. � � �. . . . . . . . � " � � � ' .. . . . .
- .. .. ~,,a.'n�.: , _.. . � -�' . � ' .. ..:1.�_ � y?.� : ., . ��.. ... ._ .. . � . � . .i . , . . ;� � . . . . •. , ... ,
��'f
�.+ �. • . . . ' ' � . J h. ♦ ..1� ,� 1.�..- - � . . - _ . t.1 T -}!, J;,y_.
. , . � . . � , �• tt i � . . .. . . �t•:' ..i' ' . . .^y-'��,��
' ' . . r : _.. . ., , ' ' _�,� �°'
: • _ - ,- -
. . . _ ..
: ,.. ._ .:..: : �`�.<: :_ ......�.�,�_.... . _ .. ... . _�_-...w_���4 .�4�
. - '-.r _.,...""""""_"_ . . . .._� . _ �i
I'p
;�'i J¢g Colo. 71 PACIFIC REPOR.TER, 3d SERIES `
�
��! rights are to be exercised.s That is not true that Beaubien meant to grant permanent
�� with respect to the rights asserted by the access rights that run with the land. ��
� landowners. The key language reads: "Ac- �i
� (7] We first discuss the location for the �
i cording to the corresponding rule, a11 �e rights. The evidence in this case establishes �
inhabitants wi11 have enjo}*ment of benefits of that the reference to pasture, water, fire- � ,
pastures, water, firewood and timber, always �,00d, and timber in the Beaubien Document
; ta�ng care that one does not injure anoth- refers to access on the mountain area of the � II
� er•� grant of which Taylor Ranch is a part. ;
� ) �I
Thus, given the specificity of other parts of First, the trial court found that the land-
� the document, the lack of specificit,y in this owners or their predecessors in title accessed � I
, sentence creates an ambiguity. We cannot the Taylor Ranch land for over one hundred i I
�, determine from the face of the document years to exercise the rights outlined in the
.;. what lands were burdened by the rights geaubien Document. This strongly suggests I '
;i Beaubien conveyed to the first settlers. that the parties understood that the Taylor �
Following Lazy Dog, we ]ook to the extrin- Ranch land was the location of their access I �i,
j i sic evidence in this case. Amici assert that pgh�. � �'
i ', the contrast between the specificity of the Second, experts testified that the re- � II
majority of the Beaubien Document and the So�.ces listed in the document were only
casual reference to the settlement rights at available in the Tay]or Ranch area of the I I
� the end of the document can best be ex- �,i-ant. Expert testimony established that �
!� plained by the events surrounding the execu- summer grazing, wood, and timber were only �
i tion of the document. Beaubien penned the available in the mountain area of the grant.fi '
� document at a time when sett]ement was This is perhaps the most significant evidence I
; moving to the. northern area of the grant, that points to the Taylor Ranch as the loca-
i
which lies northwest of the Taylor Ranch �
� tion of the rights.
area. At that time, he wrote the Beaubien
Document to establish common rights to the Third, the landowners' access rights are
; , es ress] mentioned in Ta lor's deed. The '
� , area in and around San Luis and at the same P Y Y
! ', time memorialize settlement rights that had deed subjects his propert,y interest not only
already been in e.�stence in the more south- to "rights of way of record,° but also to "al]
ern areas of the grant, where Taylor Ranch ��hts of way heretofore located and now
� maintained and used on, through, over, and
- I is located. 1
� across the same." It further subjects the
� We agree with the amici. From the trial conveyance to "claims of the local people by i
� court findings, espert testimony, the docu- Prescription or otherwise to rights to pastur-
ments associated with the �rant, and a re- �e, wood, and lumber and so-called settle- �
view of the settlement system under which nzent rights in,. to, and upon said land."
Beaubien and the settlers were operating,we �Emphasis added.) This resolves any doubt �
i draw ta�o conclusions. First, we conclude that the access rights were meant to burden
that the location for the settlement rights Taylor's land.
� referenced in the Beaubien Document is the
mountainous area of the gr'ant on which Tay- [8) There is also ample e�ridence that the �
� lor Ranch is located. Second, we conclude document was meant to create permanent l
� 5. The locations referenced in [he beginning p�r- eastern boundan oC the Sangre de Cristo grant is
ition o( the document all refer to areas in and along the peaks of the Sangre de Cnsto ranee.
� around [he present day town oE San Luis. For Thus, the Taylor Ranch is in the mountain por-
� example, the document explains that [he vega is tion oE the grant on which wood is available. In
three acres in Eront of[he chapel that still exists contrast, the western portion of the grant is
in the town of San Luis. aJong the vallev floor and thus was cleared and
used [or farming. There are obviously other
6. OC Taylor's 80.000 acres, a 77,000 acre area mountain areas oE the original million-acre
has historicallv been cal(ed La Sierra o� �e Sangre de Cristo grant other than the Taylor
Mountain Tract. The Taylor Ranch is situated y�nch; these are not at issue here.
on the eastern most part of the grant. The
� � -; _____4 _ _-,_.....- ..-r� � •--_— , __.,...— , ,y.,�,.�..T•-f�.
. . � . . . � • , ' . �i... .� � �1 -�� -*� ���
... .. . � ' .. . � .. . . � ,. ' . � .. . , -• . .. , �.,, . .... •, i - _ .. . . �... .. . . ' , . . �� . �\�:, � . ' f_. ,
��'i�:.'•.�L,RJ f��;�}A�+�f `^y^-!.�t �,�� ���5.`!' r� ++ 'l., ti. �.\ i-�; ��,.1 � ' . � � , : � . � •
t � 3L���C��t-1 +1,..j;/x` .,l"•µ {G,)��•l'�. �ie� ~, �Y• �, . `�':``� . . ,. � 1': . . � ' �, . . . .1 - . . . •
. .�' �j� i . . ' . � � . � .. " .
.) I-ji_�-r :.:./ , .. � .. .. . . . . , . � . .. . . . .. . .
s.�aG�71Ay��y� — - - -- - ,..,...�........,.J...���...r.��_._a..�......_,..�...._....,.._�_.�...�._�___.�.._....._.�.';. . .
� I,� .
� LOBATO v. TAYLOR coio. g49 �j�i
Cite as 71 P3d 938 (Cola 2002) �,� .
rights that run with the land. Both the lands for gathering firewood and for graz- �;i
' settlernent system under which Beaubien.and ing a few head of livestock furnished the �!
��
, the settlers were operating and the G�1pin bare necessities for the village families, a I�I
agreement are strong evidence of this. lifestyle to which they were accustomed. �i�
Access to common areas was an integral �'a G. Clark, Water in 1Vew��lexico, A Histo- �
n o Its �YI¢n ement and Use 34 (1987) I�
feature of the settlement system under which � f �9
the settlers and Beaubien were operating. (emphasis added). �!
Under Spanish and :Vlesican law, the govern- Under colorual and :4Ie�dcan law, the differ- I''
ment awarded community and private grants ence between a community grant' and a �I
, for the purpose of settling the frontier. See private grant was that the common lands of j,;
Ylalcolm Ebright, Land Gr¢nts and Law- the community could not be sold; the grant- !
suits in Northern Ne2v �Ylexico 23 (1994). ee of a private grant could sell the lands.
The Nlesican grants were issued under See Ebnght,supra, at 25.
specific procedures. The governor would re- Espert reports submitted in this case re- I�;
fer a petition to the local alcalde (mayor) for veal that Beaubien and the original settlers +
his recommendations on whether the grant operated under this traditional system. I�
should be made. Availabili'ry of pasture, wa- Common areas were not only a typical fea- I�;
� ter, and firewood on common lands was ture but a necessary incentive for settlement.
I�•: -
� �unong the primary considerations: ;�s discussed above, because the Sangre de �•
The nm considerations were whether i;i
P �'Y Cristo grant was part of the United States at
� the land was being used or claimed by the time permanent settlement began, this I�i
, others, the sufficiency of the petitioner's ylexican settlement tradition is not the 1,,�
' qual�cations, and in the case of a commu- source of the landowners' rights. However, ';
' nity grant, the ¢vailability of resources because the settlers and Beaubien were so ;I�
� like pasture, water, ¢nd fzrewood familiar with the settlement system, it is
Id (emphasis added). Large private grants highly relevant in ascertaini.ng the parties' i�
� were made during the Mesican period. If intentions and expectations. ;.
; the recommendation from the o,lcalde was '�e e.�cpress language in the Gilpin agree- ;lj�
� favorable, the governor would make the pri- ment, recorded one year after the Beaubien � �
� vate grant to an individual. The individual's Document, further supports the conclusion
i ownership, however, was conditional upon that the rights referenced in the Beaubien
� successfiil settiement of the grant. Document were meant to burden the land.
� Agriculture and stock raising were the pri- Gilpin was Beaubien's immediate successor ;1
j mary means of subsistence for the settlers on as owner of the grant land_ The Gilpin �I
f the grants. Id. at 25. The settlers supple- agreement contains an e.xpress condition con- �
� mented their irrigated plots by use of com- t3rming the settlers'rights: ;�� �
. monly accessible community or private grant [Gilpin agrees to theJ e.�cpress condition
lands for gathering firewood and grazing that the settlement rights before then con- Ij
livestock: ceded by said Charles Beaubien to resi- ' i
The pattern of land tenure and use was the dents of Costilla, Culebra Sc Trinchera, I�j '
foundation for these tightly knit communi- within said Tract included, shall be con- '�
� ties. Produce from their small irrigated firmed by the said William GIlpin as con- ��
` plots suPplemented b� the use of common firmed by him. �I
1 7. Because the lands oE a community grant could the San Luis vega and chapel referenced in the
j not be sold and were held in common in perpetu- Beaubien Document. The chapel and the vega
� ity, settlers could use them for hunting, Eishing, coneinue to exist in [he town oF San �uis and
� gathering herbs, and rock quarrying, among oth- they are used for the originally intended pur-
� er uses, without any question or conElict with poses as a church and as a common pasture. �
I subsequent landowners or the need oE couru to Although a portion oF the Beaubien Documen[
� deEine the intended uses. Some private grants establishes these two community grancs, the gen- j
� operated like communiry grancs; ochers did not. eral references to setdement rights were meant .
� See Ebright,supra,at 25. Two examples oF com- to memorialize access and use rights. This is I ' .
� munity grants in the Sangre de Cristo grant are clear from the Gilpin agreement.
�I �'
f
�-""�_,�:-�.�ti:ii`�=•'�.::. ' . - ...a�; :�.- .t.t...va•,'a> -^u•rr.i:y Ji��'ci.o-':--'..c"4'.'" - .�;._ .. _ .. • .,
. .... �-,... ._.. .�.'
.... ..� n..- ._.�
�� . ,� .. ..,.,. � .�:'i"�'� . . . . . . . ..�_ .
..x�. . � - .. . .. . � . . . . ." . . •� . . . . . , . .
...'- .. . `'.. . . . . . . . � � � .. �• . � . .
• . _ ..,u'r�_ , . . ' . . �.' , . .. . �!� �t . • . , . .y� . . .. _ . �•�.� .-_,�.. .. ...._ .� .. ,p' lf . . . . _ , , ., �,
�-r 1. ' . . 1 ,4F'�, :.. 1 � .J :�� 1."..,..�� . � . ' • , _ � • 1 :.'�:,}�.- �`�,�
. � .. � .. � . .. t 1L. . � .�.i . � ' � i�S�`..�•-�i_�C�
' ' . I ' ' . ' " .. � .. " . .. � . . .. � " .. -.. • .�y�
i a �
. � n .
. � � � - , - � _ -
' �:i
� .. .. . . . �. _ -
� •`4.
.,
- S. . . " .:. . . '.�.��':�.�. 3�....� . "��M�.� : li..�..... . . . • . . -� � . .�r vy��(- �
. . • _... . ..._.. . . .. . . . . . � �u��,��:�1T�
�''il
�I: 950 Colo. 71 PACIFIC KEPORTER, 3d SERIES
��� This deed also recites that the settlers paid a. Implied Servitudes
;I consideration to Beaubien for those rights [10-12] An easement is created if the
� and that Gilpin succeeds to the settlers' obli-
gations to Beaubien, including payments due owner of the servient estate either enters
Ion promissory notes held by Beaubien and into a contract or makes a conveyance in-
his agents. The Gilpin agreement is in Tay- tended to create a servitude that complies
� lor's chain of title and Taylor's own deed �th the Statute of Frauds or an exception to
I , the Statute of Frauds. Restatement, su,vrq
e.�cpressly refers to the landowners settle-
� ment rights. § 2.1'
• Thus, we conclude both that rights were Servitudes that are not created by contract
, granted and exercised from the time of set- or conveyance include servitudes created �
� tlement and that the Beaubien Document by dedication, prescription, and estoppel.
� memorialized them. Moreover, we conclude Those which are not created by express
�� that the location for the rights is the moun- contract or conveyance are the implied ser-
i� tain portion of the grant of which Taylor vitudes,_which may be based on prior use,
' Ranch is a part, and that the benefit and map or boundary descriptions, necessity,
�' or other circumstances surroundin the
�� burden of these rights were meant to run �
with the land. conveyance of other interests in land,
� which give rise to the inference that the
[9] We do not take issue with the court of P�ies intended to create a servitude. �
appeals' application of 1863 Colorado proper-
ty law to the Beaubien Document. It is not Id § 2.8 cmt. b; see ¢lso Wnght v. Horse �
surprising that Carlos Beaubien failed to Creek RancJzes, 697 P.Zd 384, 387-58 i
comply with the nuances and technical re- (Colo.1985)(noting that an easement may be ' '
� quirements of the conveyance of real proper- established by "necessity; by preexisting I
! " ty rights. Beaubien's failure to comply with use; by e.�cpress or implied grant; or by '
� the territorial property law, however, is not prescription"); Wagner v. Fa.irlamb, 151 �
the end of the inquiry. The temtorial su- Colo. 481, 484, 379 P?d 165, 167 (1953)(not� � ,
i preme court made it clear that rights to �� that implied easements are `not ex-
� access and use the property of another land- pressed by the parties in ��-iting, but . . .
owner could be found in the law of implied �se( ] out of the existence of certain facts
easements. Yunker v. Nichols, 1 Colo. 551 �Plied from the transaction").
� (1872). The law o£implied easements recog- Easements can be implied in a number of
nizes that rights may be itnplied even though situations. Easements created by prescrip- ?
� they were not properly e.�pressly conveyed. tion, Restatement, su�rq § 2.17; easements I
� This well-established area of property law is by estoppel, id § 2.10; and easements im-
concerned with honoring the intentions of the plied from prior use, id § 2.12, are the most f
parties to land transactions and avoiding in- relevant to this case. We discuss each of ;
justice. these in turn, discussing both Colorado case �
law and the Restatement, which is consistent
2. Implied Grant of Settlement Ri�hts �th our precedent. �
The evidence in this case ovenvhelmingly
� supports the conclusion that the lando��ners [13) An easement by prescription is es- `
� have implied rights in the Taylor Ranch. We tablished a�hen the prescriptive use is: 1) (
� first review the law of implied servitudes. open or notorious, 2) continued without effec-
� Second, we discuss how traditional settle- tive interruption for the prescriptive period,
ment practices, repeated references to settle- and 3) the use was either a) adverse or b)
� ment rights in documents associated wi±h the pursuant to an attempted, but ineffective
Sangre de Cristo gz-ant, the hundred year grant. Id. � 2.17, § 2.16.
� history of the lando�mers' use of the Taylor
Panch, and other evidence of necessity, reli- [14-1i] A court can imply an easement
j ance, and intention support a finding of im- created by estop�el when 1) the owner of the
plied rights in this case. servient estate "permitted another to use
_ ---- ---- , � . ' r- -- -. . --.---. — 't'�u
. . . . � � � .. ' . i. c 1. U �t'.
..�i -�r t y? �f' � � 1, ��f'Xr ��
� � .. . � ' . . .. , �_ . " . ... i �. . . . , . " . ... .. ' �� , .1.� . . . . `� , t .. . ��. r'. �"��rf.� ��. .5 .1... .�
�, �.;.p`. .,, � .�, L�a -�,�,y ,� , . . ,r .. _ _�
S' . ..1 �, ' •� �. t-�} �.2,.� 'r, . '. •' 1� c � `t t �I t y� . ' . - .
t Ye.3�..1•',?�,idrhf��`P�1'v' Zi,��yY+�•e��h� S. t�,� C�. ,. ' �,.. . .. i . � , . , •
N ' �
�� ..1�,1 , •�� � �� � 1 - . . . '. . . � . .
- iy'�i�/'•�j':�'.r�.,�:y.�,.,�. ._� �•+ ��s-.:��► -- 1w..i� -.c:�� r��.../.......�..c_���.+...�r._.�+...�.:.�,._�..-•"_� �
" I�i� •
�;
�I��
LOBATO v. TAYLOR Colo. 951 !�'
Citeas'1 P.3d 938 (Colo. 2002)
that land under circumstances in which it performed by both parties and possession j..,
' was reasonable to foresee that the user taken in pursuance thereof, the bar of the ;I��
would substantially change position believing statute is removed and equity will enforce ii;
that the permission would not be revoked."2) the right thus acquired"). +
� the user substantially changed position in i�
reasonable reliance on that belief, and 3) [18� An easement implied from prior use �!1
is created when 1) the servient and dominant �%
injustice can be avoided only by establish- ��
ment of a servitude. Id. � 2.10. Whether estates were once under common ownership, ;�
2) the ri hts alleQed were eYercised nor to ';i
reliance is justified depends upon the nature g b P
of the transaction, including the sophistica- the severance of the estate. 3) the use �vas I�
tion of the arties. Id. § ?.3 cmt. e. The not merely temporary, 4) the continuation of �
►
Restatement does not have a requirement of this use was reasonably necessary to the ii��
deception, neither does Colorado.g See enjoyment of the parcel, and �) a contrary �
Gr¢�btill v. Corlett, 60 Colo. 7a1, 154 P. 730 �tention is neither expressed nor_implied. I�
(1916); Hoehne Ditch Co. u. John Flood Restatement, supro, § ?.12; see also Lee v.
�:
Ditch Co., 68 Colo. �31, 191 P. 108 (1920). Sch. Dist. :Vo. R-1, 164 Calo. 826, 435 P2d Ij��
:ln easement by estoppel is an equitable 232, 235-�36 (1967); Proper v. Greaqer,: .827 ':�
remedy. It recognizes that when a landown- P•`?d 791, 593 (Colo.App.1992). 'I'he rationale
er induces another to change position in reli- for this servitude is as follows: �:
�:
ance upon his promise, he is estopped from The rule stated in this section is not based '
then denying the e.Yistence of the rights sim- solely on the presumed actual intent of the ;,
ply because they did not meet the formal parties. It furthers the policy nf protect- ��j
conveyance rules. The rule "is founded on ing reasonable e.�cpectations, as well as ac- ��
the policy of preventing injustice." !d. tual intent, of parties to land transactions. .'
�_ i':
§ ' 10. Restatement, supra, § 2.12 cmt_ a. ;i!
1� Colorado ]aw has repeatedly recognized
� this equitable right. For example, in Gray- Colorado has long applied this implied ),
'`":, easement. This court has found an easement ���
� bill, we examined a landowner's right to
maintain a water ditch across the land of his &om prior use in Lee. In Lee, the owner of �i,
one parcel of land claimed a right of way !,'�
neighbor. The owner of the servient estate across his neighboc's land to access his prop- �� •
had granted the owner of the dominant es- ert . The servient and dominant estates had �
; tate the right to establish a ditch across his y
� land. This was an oral promise; the parties once been under common ownership and this �
' did not comply with conveyance and record- �ght of way was used before the severance ;
� ing formalities. 60 Colo. at �52, 154 P. at of title. Seven yeais after the severance of �i,
� 730. In reliance on the parol agreement, the title, the defendant bought the servient es- �t
• owner of the dominant estate used the ditch
tate and attempted to block the right of way, ��
claiming a lack of an enforceable agreement. �i! •
as the irrigation source for his land and •I•his court found that an easement from prior ���
cleaned, repaired,and made improvements to use had been established. Lee, 164 Colo. at '
the ditch. Id On these facts, we noted that, I`�'
"[i]t is too well settled to require discussion 3:33, 435 P.2d at'?36. , � •
that under the circumstances above stated a Similarly, the court of appeals found an i,�j
licensee holds under an urevocable license, easement &om prior use in Proper. There, �
� and his right is as valid as if acquired by the plaintiff landowner used his neighbor's �.
� grant." Id at 503, 154 P. at 731; see also land to access his property. This use had �
� Hoehne Ditch Co., 68 Colo. 531, 191 P. 108 begun when the two plots were under com-
� (applying the `�vell sett]ed" rule that "al- mon ownership. Although the neighbor al-
i though an oral contract relating to realty is lowed this use, there was no formal agree-
j within the statute[of fi�auds],where a consid- ment. The neighbor sought to rescind his
� eration has passed, and it has been fully permission after twenty-five years of the �
i
I 8. Auberz v. Trnm of Fruita, I92 Colo. 372, 559 rights as opposed to estoppel in the context oF i -
� P.2d 232(1977),has no impact here because that easements,such as ditches. I
I case deals with estoppel in che context oE water
t
1 `
r�. . ,; . - - . -;�,� , -..,, , ,,. _ _ _ .
,. _ _� -. , . . . _. � . . �� �, . . . .
. . � . . .
. - - .... . _ _ . - . _ •;�:. _:,_� ,,, .. _ . ,.. . . .. -- �, . .:,� . : - . , �. . . . ,
�
, : , ' . , - ,. ' .' ` - , _� .. . . . ; . . _ ,� :;'' .
' • . � . . . . , . . '1 . . � .. • . ' • ' . .. ••1 - _
V . . __ .t . .. . . _ _. ... . . . -. . ....• - . . .. _ • ._ � .:.. � . . . .. ..� . .. . .'.'� � ����� . ....�
, �I
I'.�!I
I:j;�
!'� 952 Colo. 71 PACIFIC KEPORTER, 3d SERIES
, ,
�� easement's use, and to construct a fence. limited the rights: "A court cannot rewrite a
� Proper 827 P.2d at 592. The court found contract and thereby change its terms when
that under these facts, an easement from it is plain, clear and unambiguous." Id at
1i prior use had been established. Id. at 594. 604--05, 396 P2d at 602. In Dawson, then, a
Having outlined the law of implied ease- crucial element of an implied easement was
i� ments, we now turn to the facts of this case. �ssing because a contrary intention was
� expressly stated in the deed. For that rea-
� b. Application to the Landowners' Claims son,we declined to imply additional profits in
� Despite the long history of implied ease- Dawson.
ments in Colorado, the court of appeals in Although this court has not addressed im-
. , this case rejected the landowners' claims of plied profits for over thirty-five years, there �
an implied easement. T`he court did so be- is a modern trend to apply the same rules to
cause it believed that, although ea.sements in easements of access and to profits. See, e.g.,
�i the form of access rights could be implied, St¢te v. Kortge, 84 Or.App. 153, 733 P2d 466,
I easements in the form of profits could not. 469 (1987)(noting that "(w]hether defendants'
� Lobato, 13 P.3d at 833. In reaching this rights are in the nature of a profit a prendre
' conclusion, the court misapplied a 1964 deci- or an easement, the interests in this case are
` sion of this court,Da.wson v. Fling, 155 Colo. governed by the same general rules"); Fi-
�' 599, 396 P..2d 599 (1964). gliuzzi v. Carc¢jou Shooting Club, lf4
� In D¢wson, the Flings claimed easement Wis2d 572, 516 N.W2d 410, 41:i (1994)(ap-
Irights to a lake owned by a corporation. The p��� a statutory rule of easements to prof-
I document establishing the rights was a deed
its in part because the court was persuaded
which read, in part, that the lake could be by the Restatement of Property § 4:i0 Spe-
1 used "for boating and swuruning purposes, cial Note (1944), which states that it treats
' for the use of said grantees by themselves, ��easements" and "profits" the same because
i "in no case was there a rule applicable to one
their heirs and assigns, their servants,
i agents, friends, guests, and whomever they
of these interests which was not also applica-
mav select." Id at 602, 396 P2d at 601. ble to the other").
� � Although the deed specified boating and [19) The Restatement e.�cplains that, al-
� swinuning rights, the Flings petitioned the though some profits such as mineral and
court to find that they had the right to fish water rights y have specific rules, generally
" � as well. This court concluded that the lan- as between easements in the form of access
guage of the wnveyance clearly limited the rights and easements in the forzn of profits,
, rights to boating and swimming and thus "there are no doctrinal difterences between
declined to imply fishing rights as well. Id. therri." Restatement, su�ra, § 12 reporter's
at 604, 396 P2d at 602. note."' "Generally, the rules governing cre-
In dicta, this cou.rt asserted that "[a] right ation, interpretation, transfer, and termi-
to profits a prendre must be e.Ypressly gran� nation of easements and profits are the same
ed." Id, 396 P2d at 601. However, from ��erican law." Id § 1.2 cmt. e.
the circumstances of the case it is clear that Easements and profits are treated equally
i this court declined to find implied rights because the same public policy and practical
� because the deed of conveyance expressly considerations that underlie implied rights of
a
� 9. The case before us contains no claim to water by law. See Bd. of Cow�lt• Comm'rs v. Park
usc based on the Bcaubien Documcnt. We note Counly Sponsmen's Runch, LI.P, 45 P.3d 693,
, that on April 10, 1852, the settlers of the Sangre 706(Colo.2002).
j de Cristo grant commenced construction of the
� San Luis People's Ditch, the oldest irrigation �0. The first Restatement oF Propem, concludine
� cight in Colorado in continuous use. See Carh
Ubbelohde et al., A Colorado History, Revtied �at the sarne rules apply to easements of access ;
� Cen�ennia!Edi[ion I95 (1976). AU water in Col- �to proEits, dropped the term "proEit." Howev- j ,
orado is a public resource,dedicated �o the bene- er, because the word "pro[it" is useful as a � '
Cicial use of public agencies and pri��ate persons descrip[ive term, it survives. Restatement, su- � '
wherever the�� might make beneFicial use o( ihe p�a�§ �' cmt.e.
water under use rights estabfished as prescribed �
�
, - .. - .—_---. .. -,r_ _ .... .... - . -.., . . � .- �T..-..� _,-..�-:-.�-�a-�..--.�.+s�;--'"" �
, � � - . v'�, .. ` 'f ti�:..:,�% �I
� � ' _. . � . ' �� . �.. . � .� ' . � . . �' . . � � . . ... .. ' _ . . �'� . . _ .� _. t �.. ._ .. .. .�'!.. .���� . ., . "ti .. ��
�F . .li t ; � ^i. . „� � . . , .. ... . . . .`' ' "-� .
Y ' "� 1,' ' � . � . . � ' . , . . . . ,. . . . , .
. . . . . � . . � ._ _ ._. . . . .
. ' � ' -� ' __�.....__...�..� ..�.__.._.... .. ""_ '_.. .
.
�, . . .......�...._.,...___ ""..__ ......__ .
i'"'_�.� . � _ ' _ " �>..�.""_"__._.�._._ ' I'�f� .. � . . .
LOBATO v. T�YLOR colo. 953
Cite as 71 P.3d 938 IColo. 2002)
access also underlie implied profits. A rec- apply these principles to easements of access
ognition that parties do not always comply but not to profits.t' Such a limitation would :.
with strict rules of express conveyance; a be directly contrary to our legacy of implied '�;
desire to effectuate the intent of the parties, easements. F r
and the aim of fairness apply equally to ��
��i
easements and profits. [?0] Having concluded that the trial court ;;ii
Colorado law is replete with precedent that and court of appeals in this case incorrectly ���
reflects a strong policy to be true to parties' held that Colorado law does not recognize ;`;�
irnplied easements in the form of profits, we ��'
intentions and recognizes that Colorado's ''
unique history and geography further neces- now apply the law of implied easements to I�,
sitate judicial recognition of implied rights in the landow�ers' claims. �i'i
land. See, e.g., Roaring Fork Club v. St. ��1] Our review of the record leads us to i
.Jude's Co., 36 P.3d 1229, 1231 conclude that there is ample evidence to im- ;I'
(Co1o2001)(noting that "our la�vmakers Ply certain rights in the landowners to access �
[have] recognized that our arid climate re- � �
and use the Taylor Ranch. 'I'he prior,unity �w'�
quire[s] the creation of a right to appropriate ,
of title of the landowners and Taylo�'s land; •;j
and convey water across the land of anoth- �! __
er"); Lazy Dog Ranch, 965 P2d at 1235 (in the necessity of the rights; the significant i,
reliance upon the promise of these rights:. 'i:.
determining the scope of an easement, noting the fact that the rights were exercised for
that the "paramount concern" is to ascertain over one hundred years; and fact that these
the intentions of the p�uties and that when a ri hts were memorialized in• the Beaubien �
deed is silent as to a particular right, the Document, the Gilpin a�;reement, and every
court shall look at the circumstances sur- deed of conveyance in Taylox's chain of title, �'
,,
� rounding the transaction); Tho7rcpson, 895 �''
� • P.?d at 540 (in im 1 n an easement, noting �atisfy evzry element of the Restatement test '��
� P� g and the implied easements we recognized in ;:'
� that "sound public policy dictates that ��d the cases discussed above. !�
j should not be rendered unfit for occupancy �
and that there is a presumption, therefore, I�.
that whenever a party conveys property he i. Prescriptive Easement 1 i
� conveys whatever is necessary for the benefi- gecause Taylo�'s deed indicates that Tay- � '
� cial use of that property�' (quotation marks lor's ownership of the land is subject to the �
� omitted)); Yunker, 1 Colo. at 554 (noting landowners' prescriptive rights, we begin �
� that certain water rights are necessary for �th an application of the law of prescriptive j.
i enjoying land and that the law will "imply a easements. The court of appeals in this case �
grant of such easement where it is especially concluded that the landowners failed to prove Ilf
� �`'
� f
necessary to the en,joyment of the dominant a prescriptive easement claim because their !'.;
I estate," and that such rights come not out of use was not adverse. Lobato, 13 P.3d at&34.
the literal terms of the contract, but rather The court erred in this respect. �i
' out of "pre-e:asting and higher authority of •:i .
laws of nature, of nations, or of the communi- (2Z] A]though adversity is a necessary � :
ty to which the parties belong�'). requisite for adverse possession claims, �I
' Thus, the aim of honoring parties' inten- Smith v. Hayden, ii2 P2d 47, 52 (Colo. ';I
� tions and avoiding injustice that the Restate- 1989), it is not required for a prescriptive ��
I �'
ment e.epresses has long been the goal of easement. Courts often find prescriptive i;I
Colorado law. Specifically, Colorado has a easements even when the owner of the ser- �
strong history of implying servitudes based vient estate allows the use. Significantly, the ;
on equitable concerns. As the Restatement Restatement articulates that a prescriptive
concludes, it is arbitrary ar.d inconsistent to use is either: ;
i
11. Notably,one oF the goals of the Restatemen[is law.... (t is designed to allow bo[h craditional �
to "presen[[ ] a comprehensive modern treat- and innovative land-development practices using � �
ment oF che law of servitudes ehat substantially servitudes wichout imposing artificial constraints i
simplifies and clarifies one oF the most complex as to form or arbitrary limita[ions as to sub-
and archaic bodies oE 20[h century American stance." Restatement, supra, Introduction at '
_t L M1^r ` . , • r • _ ; • . . . . . .
'_ . . � . .. _ . _ . -i�_. �...._ i.�?t .. _.._ . . �. .. . . _ .�.i. . . �� . ��- � . ;ti .. • � _ . . . . .. .
`,��: ' ' . . . „ i� ,'��q � '� } .t � :i:. �� _ . . . . � �� � ;'-�','�r�'�:�t'��
.. ' .. . . 'C . . • t. ' . . ..�' . _ . -y r_'L�, _
. . . . � . � , . . � . .. .. . • � .. ' '^�
. . . .. � �. , ' .. . . . � - . � ' . . ` ... - ' �
� • . . ._ .. . . ._. — . . . �..." '_.... ., -. ' _._�. ....�.�Ln�..v�..,. �..�.� .. . . - •- . . ....� ,� a...�,.�'..-.-�`1..�'
� .
I;� .
'�� 954 Colo. 71 PACIFIC REPORTER, 3d SERIES
!
[� (1) a use that is adverse to the owner of not fully articulate their intent or reduce �
� '� the land or the interest in land against their agreement to writing, or because they
�i which the servitude is claimed, or fail to comply with some other formai re-
(2) a use' that is made pursuant to the quirement imposed in the jurisdiction." Re-
I terms of an intended but imperfectly creat- statement, supro, § 2.16, cmt. a. Thus, the
;• ed servitude, or the enjoyment of the bene- court of appeals in the current case erred
' fit of an intended but imperfectly created when it required a finding of adversity in all
I
� servitude. circumstances.
! Restatement, supra, § 2.16. Having established that adversity is not
! Although an easement by prescription required when a grant has been imperfectly
� without adversity has been codified only in attempted,we turn to the facts of the current
the recent restatement, °it has al�•ays been case. The trial court's findings of fact and
present in American servitudes law." Id our interpretation of the Beaubien Document
' § 2.16 cmt. a. Because many jurisdictions ft every element of a prescriptive easement.
� technically required adversity for a prescrip-
tive easement, decisions in those states often [24). First, the use must be open and
' used "convoluted explanations" to explain notorious. There is no doubt that the ]and-
� how a permitted use was actually hostile and owners' use was well known to Taylor and
� met the adversity requirement. Id Some his predecessors, in title. The trial court
� courts acl.-nowledged an exception to the ad- noted that Taylor's predecessors in title not
versity .rule in certain circumstances. See, only lmew of the landowners' access, but thev
e.g., N¢t'l. Props. Corp. v. Polk County, 386 even went so far as to direct the location of
N.W.2d 98, 105 (Iowa 1986)(noting that there grazing. Most si�mificantly, Taylor and his
imay be a prescriptive easement even `�vhere predecessors in title had express notice of
i the original use was with a servant [sic] the landowners' claims of right from the lan-
� owner's consent"); Kirby v. Hook, 347 Md. guage of their deeds. The use was open and
380, 701 A2d 397, 404 (1997)(applying an notorious.
exception to the "genera] rule [that] permis- ,
, sive use can never ripen into a prescriptive �2�� Second, the use must continue with- '
� easement . . . where there has been an at- out effective interruption for the prescriptive �
� tempt to grant an irrevocable easement Period. In Colorado, the statutory, period is
� which is void because of the statute of eighteen years. § 38-41-101, 10 C.R.S.
i &auds"). Other jurisdictions, such as Colo- (�001); Proper, 827 P2d at 595. Here, the
irado, simply glossed over the adversity re- �� court explicitly found that the landown- ,
� quirement without comment. See, e.g., ers and their predecessors in title "gra2ed
� Wright, 69 i P2d at 388 (finding an easement cattle and sheep, harvested tirnber, gathered j
J by prescription in the form of a nght of way �"ewood, fished, hunted and recreated on the
across the servient estate even though the land of the defendant from the 1800s to the I
; use of the right of way was permitted and date the land was acquired by the defendant, � i
ultimately reduced to writing); Proper. 82 i � 1960." The tria] cou.rt also found that this ;
P2d at 595-96 (listing adversit��as a require- access was never denied. This more than '�
ment of an easement by prescription but satisfies the statutory time period. � �
then, although the parties stipulated that the ��6] Third, the access'must either be ad- '
use was permissive, finding a prescriptive verse or pursuant to an intended, but imper- �
easement for access and use of a commercial fectly executed, gran� Here the access was I
parldng lot via a complea application of pre- ' �
y pernussive, rather than adverse. However, I I
� sumptions). there is ample evidence of an intended grant i
[23J It has long been established, then, of these rights. The Beaubien Document, i
that the element of adversity is not required' although imperfect as an express grant, evi-
in all circumstances. It is not required when dences Beaubien's intent to grant rights to i
other evidence mahes clear that the parties the landowners' predecessors in title (see su- I
intend an easement, but fail "because they do �ra). Moreover, the express language in �
, . � �
__. _. -.--- -�- --•-�•-- _..._....--- --�-�--
. . . • �" "_.'....'."'''_ -... _ _ � .� _,.,^�c,r�„�.+w-.--w«�.���-�.. ..
.. . ' . . ' • . .. . ' ' , � ' . � �... ... '. . ',. . • � ' . ' , - . �. � .. - . . . • � ' . . i .
' . ! . . � `� `� � �.! .� . .' Y : •• - � ' .
_ � Y ��r � ��!Jhj tiY` �'1y-� {r ^�`t? , S w4 .... . . . ` , � �. - ' *. . � . :t•_ . - � . . -
� t ',•Y' 'L, ... ' .. . � ' . . . . . . ' . �.. . . ' •.
gSyY�..�� _ —— _ �5r� '�'_'.� _ __ �.�l.�a..��w.�<��' _ -..{����!_.'r.r�.r��_�.�✓....�.�1v�a.r...+.�-l.�aw�.��...i��. _ ' .
�— ��'il
,!fl
i� .. � . . .. �
LOBATO v. TAYI.OK coio. 955
Cite a9 71 P.3d 938 (Colo. 2002)
the deeds of conveyance for the Taylor The trial court found that during the 1850s
Ranch, from GIlpin ultimately to Taylor, indi- Beaubien executed a lease to the United
cate an intention that the rights burden the�' States government for the maintenance of �!�
land. Fort Massachusetts on grant land. In this
lease Beaubien granted the army the right to
(27] Thus, the landowners have estab- ',i.
lished a prescriptive claim.11 "pasture, cut grass, timber and collect fire- ��
wood" on Beaubien's land. We can safely •!:I
assume that the United States was more �
ri. Easement by Estoppel ��
sophisticated in its dealings with Beaubien I'�
[28] The landowners have also estab- than were the landowners' predecessors in ;�i
lished every element of an easement by es- ��e and that it insisted on putting Beau-
toppel. First, Taylor's predecessors in title i� 1�+
"permitted [the settlers] to use [the] land bien's promises into writing. Under these ;�
under circumstances in which it was reason- circumstances,it is reasonable to foresee that ��I i
able to foresee that the [settlers] would sub- that a settler would substantially change po- �I'
sition believing that the permission would not !��
stantially change position believing that the �ir�
permission would not be revoked." Restate- be revoked. ��i
ment, supra, § 2.10. The settlers' reliance [29] The second element, that the user ����
I`:
was reasonabie because rights were e.�cpect- yubstantially change position in reasonable ���' �
ed, intended, and necessary. It was e.Ypect- reliance on the belief, is easily found. The ;i �
ed because of the Mexican settlement system landowners' predecessors in title settled „?
discussed above. Also discussed above, this geaubien's grant for him. They moved onto �`
settlement system, combined with the actual the land and established permanent farms. 1!� •
practices and the deeds associated with the �
Taylor Ranch, show that rights were intend- [30� The third element, the avoidance of �
injustice, is also undeniably present. The ;+�;
ed. •
ori na1 San e de Cristo ant was ven on ' �
i The rights were also necessary. The � � � �
� plaintiffs' e:cpert, Dr. Marianne Stoller, testi- the condition that it be settled. Indeed, un- i,:
' fied that access to wood was necessary to. der Mexican law, the grant would have been (+
revoked if settlement did not succeed. '!'he !
heat homes, access to timber was necessary ;';
' to 6uild homes, and access to grazing was settlers, then, fulfilled the condition of the ; '
necessary for maintaizung livestock.'� More- �'ant that made Beaubien fee owner of one �'
� over, Beaubien included each of these re- �on acres of land. � ;
i�
' sources in a lease to the United States for Beaubien attracted settlers to the area by ��
i the first military post in Colorado. See Le- convincing them that he would provide them �{�!
j Roy R. Hafen & Ann W. Hafen, Colorado: A with the rights they needed for survival. ;��
' Stmy of the State and its People 130 (1947). Beaubien lmew that families would rely on
1
� 12. The [rial couR in the current case heard evi- l3. Dr. Stoller,at one point in her testimony, a(so IIi
i
' dence and ruled on the prescription claim as a mentioned that the settlers fished. hunted, and •f
matter of judicial economy.- However, the court recreated on the land. She did not, however, '�� ,
also ruled that the landowners could not bring a indicate that such practices were necessary.
' prescription claim because Taylor did not have Significantly, in her written repoR, which the f I '
' adequate notice. Our review of the record does �andownecs submitted to the trial court. Dr.Stol- �!I
not support this determination. Although the Ier lisrs the landowners' rights as use rights to �"�
Ilandownecs did not formally file Eoc leave to add ;�
� a prescrip[ion claim until 1992, all oF their factu- ��Pasture,Firewood, timber,and wacer."
al allegations from the biRh of chis case cleariy
14. The landownecs' expert, Dr. Stoller, agreed � �
implicate prescriptive rights—particularly theic r,
claim [hat they and their predecessors in title �at the rights included in Beaubie�'s lease to the
continuously accessed the Taylor Ranch For over government were significant: "he gave[[he Unit- ��
one hundred years. Significantly, the deed oE ed States Army] use rights for pasture, cutting
conveyance explicitly informed Taylor that he grass, Firewood and timber to the adjacent
purchased che land subject ro the "claims of the lands.... Thus he was Following the same prac- I
local people by prescriptiort or otherwise." (Em- tice in the 1863 document for his settlers,and for �
phasis added.) Taylor had adequate notice of the same reasons--ehe need for these resources I�. '
chis claim. for human survival."' � •
�
� .
.�� ^.r .L \" '_ . - . . . . '..�. . ;_1.�..�_ t:.�. �..a -,�ryp.r- ' '?•.�Y'. . ' . - _ � ' � � .
. . : `. - . . . . � ' . ' ' ' ' .. . . .
. . rr ` % •' ' , ' f . . a� � • . . . . � .
� .. . ._ ..t.�)_r�._.. ... � . ., �_. .. . !�' ... .. . ,,t' �' . .. .. .y'.):•.. . -. ._ ' . l .. .. .1�� .�� • . . 14 .. ` . . . � , . .. ..
�
,, �- . . . . „ . .� � .l. '��l.° .� . ..'. . . •
� . . . . ' \ �. ' 1: . . . .' _ . �' :S . �' .
. . � .._t . . . __ __ ._ . . . . .... �� � '. � ♦ . . � .� -�. . . �1. .� . . .... . . ' . .a... ..�.��_ �t_�..~���'`>- ���j
�s-
�:
1
'�I 956 Colo. 71 PACIFIC REPORTER, 3d SERIES
T
i' his promises and leave their homes to travel Custom, expectation, practice, and language
i hundreds of miles on foot or horseback to in the documents and deeds surrounding the
establish new homes. Taylor ranch property indicate not only that
A condition of the conveyance of Beau- a contrary intention did not exist, but that
! bien's land, from Gilpin douTn to Taylor, was the parties affirmatively intended for these
� that the owner honor these rights. Although rights to exist. �
Ithese promised rights were exercised for All five elements of an easement from pri-
� over one hundred years, although these or use have been established. �
ri�hts were necessary to the settlers' very
. i e.ustence, and although Ta}�lor had ample C. Extent of the Rights i
notice of these rights, Taylor fenced his land Having found that the lando�•ners have
' over forty ,years ago. It is an understate- �plied profits in the Taylor Ranch, we now
� ment to say that this is an injustice. must address the scope of those rights. We
�I The landowners have established each ele- imply the rights memorialized in the Beau-
Jment of an easement by estoppel. bien Document. We do so for four reasons.
� First, the document is the strongest evi- !
I f ui• Easement From Prior Use ',
dence we have of the parties' intentions and
i! [31] Lastiy, every element of an ease- expectations. Second, the rights in the docu- �
Iment from prior use has been shown. First, ment were likely the most necessary. Third, I
� both Taylor's and the landowners' lands were the Fort Massachusetts lease lists these �
originall,y under the common ownership of same rights. Fourth, the document is the I i
� Beaubien who owned the entire Sangre de only evir3ence we have of an attempted ex- ;
j Cristo grant before settlement. See T¢mel- press grant. This is particularly important
i � ing v. United St¢tes Freehold Land K: Emi- for the prescripiive easement claim. See Re-
� gration. Co., 2 Colo.411 (1874). statement,supra, § 2.16 cmt. �'�
Second, the rights were exercised prior to [g2] Accordingly, we hold that the ]and-
jthe severance of the estate. As discussed owners have implied rights in Taylor's land I
above, many of the rights the landowners for the access detailed in the Beaubien Docu-
� ! claim were needed and expected for life in men�pasture, firewood, and timber. These
� the San Luis Valley. This necessity existed easements should be limited to reasonable
. from the first days of settlement—indicating use—the grazing access is limited to a rea-
that these rights were exercised prior to sonable number of livestock given the size of
severance of title. the vara strips; the firewood limited to that
The third and fourth prongs—that the use needed for each residence; and the tunber
was not merely temporary and is reasonably limited to that needed to construct and main-
necessa.r�� to the en,joyment of the land—are tain residence and farm buildings located on
also easil}� established. The trial court's the vara strips.
� findings of fact establish that the rights were
e.r•ercised from the time of settlement until III. Remaining Issues
Taylor came on the scene. Moreover, as pver the years, a host of contested issues
discussed above, the rights were reasonably have arisen in this case; many were not
necessary. addressed on appeal because the court of
Lastly, no contrary intention is expressed appeals' holding that the landowners did not
or implied; thus, the fifth element is present. have any rights rendered the ancillary ques-
� I5. The landownen acknowledge [hat [he Beau• ' tive easement in the absence of adversity, there
� bien Document does not re[erence rights for must be evidence oC an attempted e:cpress grant.
hunting, Fishing, and recreation and thus that In ehis case, the Beaubien Document is the only
; there is no evidence oC an express or implied evidence of an attempted express grant to the
grant..o( these rights [rom Carlos Beaubien. landowners. Because it makes no reference to
However the landowners claim that these rights hunting, fishing, or recreation, there can be no �
, , exist via a prescrip[ive easement. We disagree. prescriptive easement for those rights. I
As discussed above, in order to find a prescrip- !
I
� li
I
I
. ....{.. ..-•-nr-r��..s...�-r.-�.+- .1 ` - . "'""R'�}'R^�''GT7C.�v?ir+tt�T7F'i',73t�`,�T.�� �I
. �.
' . - . .. . . < - . . . , . .., . � ,. ... ,. .�. .,_t- ..:� ., ,. ,.,it.c�,... .._ ,..., `J .., ,�'...� . t:, ,
�
t, i: � r . . .,. _ .
� f - �.ir�� � t,` � �-s.�.i�`r.ii .',` -� - i .� . ` � �. � . '- . _ ,._:_. ._. :� . . .��. . . �
c i �.sr'i l����_i'hl ��rr.+�I y t r�l��v�,���� ~y y� •t �r�%Y�'.'..:r.� v�rL •.,�,�.�. .aurcly � lr:�.1..i:r.rr�trrs...v.u� � ....0 i � . . . , .
. 4�� .�.���.��_�_'� Y�a /. � . . .
G��.
�
� LOBATO v. TAYLOR Cola 957 ;
, Cite as 71 P.3d 938 (Colo. 20021 , , „
� tions moot. We have reviewed the remain- 7ustice 1YL4FZTINEZ dissenting only as to
ing issues and conclude that the only appei- part II.C.
• late issue that must be addressed is whether � the opinion by the chief justice correct- 'i'
the trial court engaged in the appropriate ly notes, this case involves the settlement ,:,�
due process inquiry on remand from Rozl. �ghts of people who have been largely dis-
In Rael, we remanded this case for a de- Possessed of their rights in land when Taylor i
termination of which landowners received ad- fenced the property. There is little dispute ;
� equate notice in the Torrens title actions. that the settlers enjoyed e.�ctensive rights in ;
876 P2d 1210. Although in Rael we high- the lands that comprise the Taylor Ranch for ;!;�
lighted facts in the record that indicated about one hundred years. Rather, the dis-
Taylor ll.--iew that local landowners claimed Pute concerns the e:ctent of the rights, if any, �`�
that survive when we construe settlement ;;�
rights in the land, on remand the trial court �
found criteria other than landowning disposi- �ghts conceived in a different era pursuant �;
tive. The court dismissed most of the plain- to contemporary standards. In short, the +
tiffs, allowing only seven to pursue their �culty of this case is that we must address ,i
claims regarding the mountain tract and only the grave injustices imposed upon the set- i'?�
tlers' successors in interest by interpreting ;s«;
three to pursue their claims regarding the ;:
Salazar estate. This must 6e reviewed. documents fr�om a different era, intended to i:
reflect Beaubien's intent, through the per-
; As a matter of judicial economy, and as a ,pective of modern property law. Nonethe- ;�
� matter oi fairness, given the forty-one year less, equitable principles in our modern juris- -
' denial of access to the Taylor Ranch and this prudence, properly construed and applied, `
. twenty-one year litigation, we decline to re- pe�it us to recognize the rights of the .I
� mand this case to the court of appeals for a settlers and their successors in interest. '��
determination of this issue. Rather, we will gecause I concur with the chief justice's !:
� revisit the due process issue after full brief- analysis and conclusion that the landowners
ing, in a separate opinion. See Balloe� u have access rights through a prescriptive ,,;�.
; Phico Ins. Co., Si5 P.?d 1354, 1364 easement, an easement by estoppel, and an '`
� (Colo.1993)(retaining jurisdiction rather than e�ement from prior use, I join to make it �.
remanding to the court of appeals as a mat- the m�jority opinion and refer to it as such �
' ter of judicial economy). herein. As the majority explains, the Beau- !
� bien document is an imperfect attempt at an I '
, N. Conclusion erpress grant of rights clearly "meant to '-
� In sum, we imply access rights in the create permanent rights that run with the Il,;
� landowners to the Taylor Ranch for reason- land," maj. op. at —; such access rights �.
� � .
able grazing, tirewood, and timber. We re- were an "integral feature of the settlement ��
� ject the landowner's claims for hunting, fish- gystem under which the settlers and Beau- ;,�
� ing, and recreation. Before we remand to bien were operating." Id. at —. Addi- ,!;
� '. '
the trial court for a permanent order of tionally, the Gilpin agreement provides fur- ;E
� access, additional briefing is necessary in ther support that the settlement rights ;�
order to determine which landowners re- granted by Beaubien were intended to run i.
ceived adequate notice in the Taylor and with the land because that agreement re- .
Salazar Torrens actions. The clerk of this quired that Gilpin take the land on the condi- ,.��
court will set a briefing schedule for the tion that he recognize and confirm the settle- ;�
parties. ment rights. ''
;�
I also agree with the majorit�s analysis ,i
� .lustice MARTINEZ dissents only as to and conclusions regarding the implied servi- �;
; part II.C. tudes upon which it bases its holding. The :�I
� majority determines that the same rules
Justice KOURLIS dissents, and Justice should be applied to easements and profits
RICE joins in the dissent. and adopts the Restatement's position that j;.
Justice COATS does not participate. easements by prescription do not always re- i •�
�
;
i
- . , . - � .. . .. . . . . � - . . . � r- ...... . .� . . . = .- . n.- ' . � . . . . . . . . .
. . �... . . . . � ' . . � � -. � .. . - ' . . . �... . . . .. . ... . .i .. . . . r' . . .. � . . � .. .
.�—� ,�
, � • . . - ' . ` � � . --t. .i � � ,1 `_ ,� . .
. . . . . . . . ` ' � � � ,._., . . . .. ... . , . . . .. .-} 'C . � .
. .i . , ' . ., _ , ' . ' . .
_ .. . - .. _ . . _ _ -_
. ,� . � _ ,_ .. .� � . . . _. -. .. . ., _ _ '``' "_^-T
I� ' 7 IFIC REPOR
�� 958 Colo. 1 PAC TER, 3d SERIES
��I�
�;' quire a finding of adversity; instead such that "settl.ement rights" encompassed more
� easements may result from an intended but than grazing, firewood, and timber, I would
i� imperfectly created servitude. also include access rights for fishing, hunting,
In addition, I agree with the majority's and recreation through a prescriptive ease-
II conclusion that the ]andoa>ners' access rights ment, an easement by estoppel, and an ease-
are also found through an easement from ment from prior use.
! prior use and an easement by estoppel: The
; I. T'he �-ial Court Findin s Re ar
� elements for both of these easements are met g g ding
i in this case. I particularly agree with the Settlement Rights for Fishing,
j majority's strong language regarding the in- Hunting, and Recreation
justices that are avoided in finding access The trial court made strong findings that
' , rights through an easement by estoppel. "[i)he plaintiffs' predecessors in title grazed
I In short, I summarize the majority's ana]}�- cattle and sheep, harvested timber, gathered
' sis, and my support for it, to emphasize the firewood, fished, hunted and recreated on the
�' many areas of agreement I have with the land of the defendant from the 1SOOs to the
; majorit,y and the extent to which I concur date the land was acquired by the defendant,
� and join the majority opinion. in 1960." The trisil court also found that,
Ij However, it is significant to me that the PMOr to 1960 when Taylor fenced the land,
!', tria] court's findings that the ]andowners also the ]andowners referred to that land as
�'� enjoyed access for fishing, hunting and recre- "open range" and that the lando��ners were
�! ation are supported b,y the record. As a "never denied access to the land for grazing
result, I would apply the reasoning of the of cattle, sheep, harvesting timber, gathering
Imajority opinion regarding prescriptive ease- firewood, fishing, hunting, or recreating."
� ment, easement b,y estoppel, and easement My review of the record reveals that that the
- from prior use to conclude that the landown- �� court's findings of fact that fishing,
� ers have also established access rights for hunting, and recreation were included in the
fishing, hunting, and recreation. Thus, while settlement rights contemplated by the Beau-
j I join the majority opinion as to its analysis bien document are correct.
j . regarding the source of the landowners' Several expert historians filed reports in
' � rights, I do not join part II.C. of the majori- this case, some of whom also test�ed at trial.
ty's opinion, which excludes fishing, hunting, Some of these reports include commentary
and recreation rights from its holding. How- regarding fishing, hunting, and recreation as
j ever, I recognize that part II.C. of the chief part of settlement rights. For esample, the
i� justice's opinion is the controlling opinion in report filed by Dr. Michael Meyer, professor
this case. emeritus at the University of Arizona, con-
More specifically, though I agree with the cluded that the common ]ands in the settle-
majorit}�s finding that the Beaubien docu- ment systems provided material resources
ment is an imperfect one and accordingly such as "fuel to keep warm during the cold
must be considered alongside extrinsic e�-i- W�nter months, a �az-ied diet of fruits, vegeta-
dence in order to find the landowners have bles, grains and meat." The reference to '
� access rights through a prescriptive ease- "meat" as one of the resources available from
� ment, an easement by estoppel, and an ease- the common ]ands implicitly refers to hunting
# ment from prior use, see maj. op. at 94 r-948, that took place on the common lands. Dr. ,
� I believe that document cannot be read to Meyer's report further ea-panded on the uses � '
? limit the landowners' access rights to graz- of the common areas, stating that '
� ':
� ing, firewood, and timber. In my view, the [t]he common lands were put to manr uses ��
s imperfect nature of the Beaubien document in Spanish and Mexican New Me�co, in- ; I
� requires us to look beyond that document to • cluding fishing, hunting (of wild turkeys, �
determine the full scope of the landowners' deer and other game), threshing, recre- � �
� access rights. As a result, I would not limit ation, the gathering of wild herbs, fruits + I
the landowners' access rights; instead, based and nuts (especially pinones) and the dis- � !
on the evidence in the record demonstrating posa] of refuse but most importantly they
, , �
A
, � ... _._-.-.. .- . . -.--.-. ' ,.,� �.-�..�..�������a-1".^'.,..-.- . ._ . •--.....-- . . �"�au.+i?+:J`+v'aw:r� i
. � , . . � , . � ' .. I
., . '. . .. � . ' . : - .. � . � . , • . . . " � . .. � . � ��� . . . . � . . . `� . - . �. \?. �f, l 1 ) 1 .
� � +. 1 � , �_ '1� � .. � ,t _ � � . T. . ,. . • . . - . � ' ' � . .
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i r -o t � _
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.'
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• +
� LOBATO v. TAYLOR coio. 959 ' ' '
� Cite aa 71 P.3d 938 (Colo. 2002)
were used for grazing, watering of stock the te.rt of the Beaubien document when
animals, and the cutting of wood. interpreting the intent of Beaubien and the
Dr. Meye�'s report also e.Yplained tliat settlers cvith regard to access rights. When
among the various primary documents giving �ked about Beaubien's purpose in authoring `�.
i;
a legal basis for common lands use is the the document, Dr. Stoller replied that his• ;.
Plan de Pitic, which was the founding docu- P�'Pose was to record the use rights of the
� ment for several New Mexico towns, but also people to the common lands. However, she �I
"specifically given general applicability for all specifically pointed out that one reading the k;
of the towns in the northern New Spain." Beaubien document must look beyond the �„'
This document provided that common lands actual te.�ct of that document in interpreting ;�
be set aside around each settlement "so that the rights it includes:
the settlers can use them for recreation[and] He set aside land for pasture, lowlands, j��
go out with their cattle without doing dam- the vega lands, specifically saying that i
i
age." these lands were to be used only for ani- '!
Dr. iblarianne Stoller, professor of anthro- mals that were necessary for domestic pur-
pology at the Colorado College, filed an ex- poses. . .. And he designated the lands ;��;�i
pert report and testified at trial. Although that could be used for pastures; for `'"
c
her report does not e.Yplicitly mention fish- flocks--and he did not use the word
ing, hunting, and recreation, her report con- `flocks,"but this is to be understood, given .
cludes that the Beaubien document clearly the nature of the economy of these people,.
� guarantees the landowners' right of access an agro-pastoral economy.
to common lands. Significantly, her report �Emphasis addedJ Dr. Stoller further es- �
� also concludes that the Beaubien document plained the need to look beyond the text of
i `is made more understandable by loolang at the document to properly interpret the scope ;
� the conte.rt of the political and social cir- ;,;
i of the access rights it contemplated:
cumstances surrounding its creation, and by
understanding the nature of the economic Because [the Beaubien dlo�cument], like any I�
� circumstances, ecology, and topographical document, has to be inte reted. And one
� characteristics of the area." has to go beyond it to understand the �'
geography. That document contains place ti!
Although Dr. Stolle�'s report did not ex- names. One has to know where those '
pressiy address fishing, hunting, and recre- p]ace names are. It refers to different
ation, her trial testimony did. When asked types of lands. One has to know what
I to e�cpress her opinion regarding the use of those lands are, where they are. A]1 those `
the common lands by successive generations �
of landowners between 1863 and 1960, she �nds of things are necessary in order to '�F
� replied, in pertinent part, that "[t]hey were interpret such a document. . . . The lands ;
used for hunting of wild animals. They were gPoken of in the document include the �
used for fishing. . . . And recreation. When agricultural lands, they include the moun-
asked whether there was specific, visible evi- � lands, they include the pasture lands, '
dence of such use of the common lands, ahe the vega lands. Lands, in other words, `�
repiied: that provide ditferent resources and that '
� are for different purposes. �j
'I'here were roads that went partway up �•
m o s t o f t h e t r i b u t a r y vaL'e ys.... There T�s �stimony demonstrates the necessity of �
Iwere trails that crisscrossed the mountain loolnng to other evidence beyond the Beau- �.II
� lands.. .. There were signs of people hav- bien document in order to fiilly understand ,
� ing cut wood for the purpose I described. the different uses that settlers made of these ;;
� There were animals, there were there were lands. Such other evidence demonstrates !
' that fishin hunting, and recreation were �
• sheep and cattle grazing. There were wild g� �
� animals to be seen. There were fish in the uses to which the lands were put. I
c streams. Thus, Dr. Stoller's testimony is significant
� Additionally, Dr. Stoller, consistent with her for two reasons. First, her testimony estab- •
� report, testified that one must look beyond lishes that any interpretation of the rights
� ,
r.ti,'..-h� `-.�:' ' . . - . ' � . . . . � ' 1 ',i . �•`L'' .. . , -.. - . ,. � . .. .
.. ' ' . .. � . .. � .�. . . - . • . . .
, - rv.- '... � ,' � •. • . •�•.. . . _ ...�).��.7 . .. .. . .'1_: ._. . .. �. . � • •�l }'� .. .•1.. f . ;1 .. � . . . , ..r ..
. . . . • ' . � ' .. J , . , . , . . . ' '.. : . . . ,
, � . � ..__.. . .._. . . � .. , .. .... . . . . . _ '. - �-- _.-.. -...��-
y;
� � 96Q Colo. 71 PACIFIC REPOftTER, 3d SERIES
I;'j
C� contemplated by the Beaubien document back to the Plains tribes, opining that al-
must necessarily go beyond the specific text though these tribes practiced agriculture,
of that document and consider other evidence hunting was the mainstay of their exis-
of the social, political, historical, and econom- tence. . . . Large animals such as buffalo,
i� ic circumstances at the time the document mountain sheep, antelope, deer and ell:
was authored; we must look beyond the text provided not orily food but also material
i of the Beaubien document to determine the
goods. They used the hides to make hous-
scope of the access rights to which the land- �g covers, sinew for thread, rawhide for
� owners are entitled. ropes and straps, and tanned sldns for
; Second, Dr. Stoller's testimony demon- clothing and shoes.
; strates that fishing, hunting, and recreation, We can infer that this use of the lands for
• although not expressly mentioned in the hunting continued after the Me�can govern-
; Beaubien documer.;t, were important to the ment began to approve land grants such as
; settlers, just as gr•azing and gathering fire- the Maxwell and Sangre de Cristo grants
'' wood and timber were. Accordingl}�, I be- based on community opposition to the Max-
j� lieve that the evicience of settlers' fishing, well ant: 'i'he Maxwell
gr grant, unlike the
hunting, and recreation activities is evidence 5angre de Cristo grant, did not expressly
�� of the "political anc. social circumstances sur- reserve rights to common lands for settlers
�• rounding" the creat:ion of the Beaubien docu- through a document similar to the Beaubien
� ' ment, and that such evidence increases our documen� As a result, some members of the
j� "understanding the nature of the economic community feared that the Maawell grant
� � circumstances, ecology, and topographical would be put to commercial use to the exclu-
i characteristics of the area." sion of historical, local use b,y the settlers for
iFurther, the exp�rt report and testimony hunting and grazing. In particular, soon af- ,
of Dr. Maria Montoya, professor of histary Ler Beaubien received the Ma�.-well grant, a
II and American cultiu-e at the liniversity of community member named Father Jose An- j
blichigan, also supports the trial court's find- tonio Martinez lodged an objection. One of �
ings. The majority of Dr. Montoya's schol- Martinez's grounds for objecting was that ;
, ; arly research and writing relates to the putting the lands that comprised the Maxweil
� i Maxwell land gran� The Ma.rivell grant, al- b'�'ant (which were put to similar use as the
, though not the sub;iect of the present case, lands that comprised the Sangre de Cristo
; is nonetheless close.fy related to the Sangre �'ant)into private hands would deprive those �
Ide Cristo grant that is the subject of this living on the lands of their livelihood, which f
� case. The Maxwell grant, located directly to consisted of hunting as well as gz-azing live- i
the southeast of the Sangre de Cristo grant, stock. '
was'also o�med by :Beau,�ien. Dr. Montoya The conclusion that hunting was an impor- �
test�ed that the history of the two grants is tant aspect of the settlers' activities on both i
, closely related and that she studied the the Ma.�vell and Sangre de Cristo grants is �
� Beaubien document in the context of her supported by the findings of another expert. i
research of the Maa�svell grant. A report filed by Malcolm Ebright, an histo- i
More specifically, Dr. Montoya's report �an, attorne}�, and president of the Center ,
noted that the activities of the settlers that for Land Grant Studies in Ne�� Mexico, also � ,
� lived on both the Maxwell and the Sangre de concluded that Martinez opposed the Max- '
Cristo grants were similar. She explained u'ell grant because the grant "included the I
� that on both grants, people "settled along the communal hunting and grazing lands" of set-
� river valleys using similar land use settle- tlers. '
�j ment patterns of community living based Finally, testimony from at least one of the �
1 around a plaza with privately held strips of � landowners also supports the trial court's I
� land (varas), and cammon areas used for conclusion that recreation was included in the
hunting, grazing, and wood collection." settlement rights contemplated by Beaubien
� (Emphasis added.) Her report traces the and the settlers when the document was
use of the land that makes up both grants authored. Emilio Lobato, Jr., who resides
� .- _--__.__.�. . _ _._... _._ _ ,....,. ..._.�.,�.. _ - .���.,•-•,.�,-,_ :.
: , , � . ' ' 4 .,' l �r
. ' . _ . . . „ .. . ' , ', ,., �... .. _ , . 'r , _ - '�.
�
,� , , _ �. - � . ,-� . - . • - _ . ,
� Y ,' ,` .• i_ _ ..s , . . . ` • " ' � � , • , .
� — , , , .
-4.�>_ .. -�--------•-----�---°----_._�_�___._..------_�.--•-- -- —�.��_-- -..--1`-- .___... . __ . ..��.
`i . .
� LOBATO v. TAYI.OR coio. 961
Cite as 71 P.3d 938 (Colo. 2002)
near the Taylor Ranch, can trace his ances- recreation as well as For grazing, firewood, ;
try back to Cristobal Lobato, one of the ea.;ly and+timber. ,
settlers. In addition, his great-grandmotheT Looldng, as we must, beyond the Beaubien ��
was an original settler in 1851. He described document, which is imperfect, to e.�ctrinsic �:I
the use he and his family made of the land evidence to determine the full scope of the ��
when he was a child, stating that he would access rights intended by Beaubien reveals ;
use the land for "hildng, horseback riding, that access rights for fishing, hunting, and ''`
just esploring." He also testified that he and recreation must be recognized. The Gilpin '
his family would go on picnics on the Taylor agreement is one source of important e,etrin- €
�
Ranch land. Aithough such contemporary sic evidence. Significantly, both the Beau- ��;
recreational use of the Taylor Ranch lands bien and GIlpin documents refer to settle- 'i�
occurred several generations after Beaubien ment rights as if the scope of those rights ��
authored the document and the original set- was understood. Because I believe that ��
tlers arrived, the fact that such use persisted there was no attempt to enumerate the spe- :j�
from generation to generation is further evi- cific settlement rights in either document, �
dence that recreation rights were considered that neither document specifically mentions ��
settlement rights and thus contemplated by hshing, hunting, and recreation is not dispos- '�
the Beaubien document. itive as to the scope of the settlement rights ;� �
accorded to the first settlers. -
In sum, the evidence presented at trial and
through e.�cpert reports, as well as the testi- � a result, e.�cttrinsic evidence beyond
mony of at least one lay witness, supports these documents must.be considered. Such �
the trial court's findings of fact that fishing, e.�ctrinsic evidence includes the social, eco- ,I
I hunting, and recreation were an important nomic, political and historical character of
Ipart of the settlers' activities in the region settlement rights. �,s my discussion of the
! that includes the Taylo� ffanch at the time record reveals, evidence adduced at trial sup- :
� the Beaubien document was authored in the Ports the trial court's findings that fishing, ;' '
� 1860s. In addition, much oF the expert testi- hunting, and recreation were contemplated
rnorry and reports also concluded that the by the Beaubien document, and thus the I��
Beaubien document must be construed by Gilpin agreement, although not mentioned I:
considering the social, economic, historical, ���dually in either document. According- i��
and geographical context in which it was ly, all six access rights sought by the land-
authored, and not strictly based on the actual owners are properly recognized through a
i text. As a result, applying the same analysis Prescriptive easement, an easement by estop-
as the majority, I conclude that fishing, hunt- Pel, and an easement from prior use.
� ing, and recreation rights were contemplated Because I would hold that the landowners �j�
by the Beaubien document and must there- have access rights For all siY settlement _i
fore be included in the access rights to which rights, I am unpersuaded by the four reasons
� the landowners are entitled. given by the majority for limiting its recogni- '
� tion of access rights to grazing, firewood, and �f
timber. See maj. op. at 956. I briefly ad- � �
II. The Scope of Access Rights �ess each of these four reasons. i! �
• My disagreement with the majority opin- First, the majority asserts that the "docu- ��
ion is with its application of easements by ment is the strongest evidence we have of , �
� prescription, by estoppel, and &om prior use the parties' intentions and e.�cpectations." Id. I;�
I to limit the landowners' access rights to "the While I agree that the Beaubien document is ;t
rights memorialized in the Beaubien docu- strong evidence of the parties' intentions, � f
� ment." Maj. op. at 956. Instead, applying that document cannot be considered as the �I I
� the legal frameworks of easements by pre- only e.Ypression of those intentions, or even jl�
� scription, by estoppel, and from prior use to the strongest e.rpression. Instead, because
� the trial court's findings of fact results in my the document is imperfect and ambiguous, '�� .
determination that the landowners are enti- e.rtrinsic evidence must be considered in re- ;;I
tled to access rights for fishing, hunting, and constructing those intentions. Because the
�
,'I� ,
:r�� _ �. • � . . . . .- .. '�' - -. • � . . . .
1M1�^. \. •, ) . .� h . ` • • • ' . •
� . .-_..Lh�: ._ .... .. . . .�. . ... . �. .... .:'.i. r�.! �a, . . . . _ � .�. . .� . .. . ' .l .._ . '.! '''1�. . :1 . . . � . ' ... .
'. � . . ' j ti��•..; ;� , , : , ,:, , .. :_ . ,3 ;:,� �.c- 9,:�•
, , . . . -- �t :� ._ .Ct 'a` 1 ➢, .�i� .��,.a-T.yK�.:�'� n
.. . . .. . . . - . .1 � .. _ . � .. .�`,` Y_.�'
F y
, . . � . t .. � . . � , �.1 _ _ _ _ . .. . . . . . � - • . .� _ � �. '�1Z M���_
� f - . . - . . . _ . . ,_ ..�� . �. .. ' `� .
962 Colo. 71 PACIFIC R.EPORTER, 3d SERIES �
�'i� ; trial court's findings of fact regarding all six ing and collecting firewood and timber that `
t� ' settlement rights are supported by the rec- are contained in the Beaubien document and I
i' ord, I find that it is logically consistent to the settlement rights of fishing, hunting, and �
determine that the landowners have estab- recreation that are supported by other evi-
lished access rights for all six settlement dence in the record. As noted, the Beaubien ��
II rights; to find othervrise treats the Beaubien document is an unperfect, ambiguous docu- i
document as a proper, perfect, e.�press grant. ment that must be interpreted and construed
� Second, the majority contends that the by referring to extrinsic evidence; the evi- �
+ rights in the document were "likely the most dence adduced at trial strongly supports the
trial court's findings of fact that all six rights �
; necessary." Id. I a�;ree that grazing herds ��ere considered settlement rights.
Iand gathering firewood and timber were nec- !
; essary for the survival of the settlers. The Accordingly, I believe that the legal con- �
record supports such. a conclusion. See id cepts of prescriptive easement, easement by
' j However, a finding that fishing and hunting estoppel, and easement from prior use, when !
;, were necessary settlement rights is also sup- applied to the evidence adduced at trial, com- ;
ported by the record. Further, although pel my conclusion that the landowners are '
' recreation is arguabl�� not necessary for sur- entitled to all six settlement rights. I
i vival, there is ample evidence in the record
�' that recreation was considered an important III. Conclusion �
settlement right. See part I, supra
� Third, the majority gives weight to the fact �ile I agree w1th� the majority's articula- �
�� ' tion of the controlling law in this case, I �
ithat the Fort Massachusetts lease lists the disagree with its application of that law to ,
� same rights as the Beaubien document to limit the scope of the ]andowners' access �
support its exclusion of fishing, hunting and �
� recreation rights. However,because the rec- rights. Because I conclude that the trial �
� court's findings that "[t)he plaintiffs prede- ;
ord reveals that the �urpose of Fort Massa- cessors in tiUe grazed cattle and sheep, har- �
chuset�s was importantly different from the �ested timber, gathered firewood, fished, � '
� purpose of the Sangre de Cristo settlement, I 1 '
I do not give great weight to that ]ease in hunted and recreated on the land of the
I � discerning the ful] scope of the landowners' defendant from the 1800s to the date the �
i i land was acquired by the defendant, in 1960" � i
access rights. More specificaliy, as ea- az.e supported by the record, I would find �
� plained by Dr. Sto11E:r, the purpose of Fort j I,
Massachusetts was to "protect the settle- that the landowners enjoy access rights for
� ments .. . and to fiu-t,her U.S. policy towards �T�ng, collecting firewood and timber, fish- f I
Indians of rounding them up and confining �ng, hunting, and recreation on the Taylor ' i
1 them to a reservatior.." Although the righ�� Ranch. Accordingly, I dissent from part i
II.C. of the majority opinion and join the
to graze and collect timber and firewood majority opinion as to all other parts.
� articulated in the lease were necessary activi- I
' ties for maintaining a.n army fort, the funda- Justice KOURLIS dissentin�. +
mentall,y different purposes between Fort I
I Massachusetts and the Sangre de Cristo set- A]though I have great sympathv for the
tlements lead me to �,�ve little weight to that historic and present plight of the landowners � i
lease as evidence regarding the scope of the in this action, I cannot support the majority �
lando�mers' access rights. opinion for two reasons. First, it is my view
Finally, the majority argues that the Beau- that in 1863 Charles Beaubien attempted to
bien document is the "only evidence we have mal�e a community grant for the benefit of
� of an attempted express grant," which is the inhabitants of the plazas of San Luis, San
j important for a claim of a prescriptive ease- Pablo, and Los Ballejos. The law in effect at
� ment. See maj. op. at 956. While I agree the time did not recog-nize such a grant and
with this as a state�nent of fact, I do not •instead required individual identification of
believe that it pro��des a basis for discrimi- grantees. Hence, the Beaubien Document
nating between the sFttlernent rights of graz- had no]egal effect.
,.� __..,�_
� _ ,s
f,r - `�ul J - �� .S ;..,�ji,�:� �}� ' .I, v - r, , , �- . . . . -
1, ii a i 1 :l L
S � 3x �.�11�� �� "��^.4r1� �.�N>>�1'°�l. ,l„�ti . �(��., .t ! � �: .� `. - � • � � ' ' , .
,� �. �"'J{ � ,�,i, . . . � . . .
j���;'•'7i� �t�' 1 '—a--l���—1.1.�.�.��)-.1r1�+i w J —y.y/ J ' ' ' ..�I.a.au..ari�.G.:�.�....�'�.�.�w-..�a.��.✓.�.�.0 i( . ' _, � ,
r�n/�� -- nlf�
�
LOBATO v. TAYLOR Colo. 96S r. �
Cite as 71 P3d 938 (Colo. 2002) , , .
� Second, I find no ambiguity either in the irrigable plot, and the right to "use the re-
legal description in the Document or in the maining unallotted land on the grant in com-
absence of grantee specificity. The legal de- mon with the other settlers for pastures, ;i
scription refened to the lands of the Rito watering places, firewood, and logs for build- �;
Seco. The �-ial court found that the land5,of ing. ... ET]he common lands were owned by
the Rito Seco do not overlap with the current the community and could not be sold." 1'tal-
Taylor Ranch. There is no ambiguity; rath- colm Ebright, Land Grants & Lawsuits in !.j
er, the Document simply does not apply to Northern New Mexico 25(1994). I
Taylor Ranch. Additionally, the omission of Charles Beaubien received a private grant ;!�
b antee names was not an ambiguity: it was {�-om the government conditioned upon set- `"
a clear attempt to create a communal grant, tiement requirements. Beaubien, in turn, ���
which was not legally recognized. created what I construe to be a community :,'i�
Because the Document is not ambiguous in �'ant to the prospective inhabitants of three ;.�
any pertinent part, it cannot support an im- plazas. In the Document, he stated that: ;��'
� plication of rights not e:�pressly set forth. It has been decided that the lands of the ;�f,
Prescriptive easements, easements by estop- Rito Seco remain uncultivated for the ben- �i l
pel, and easements from prior use do not efit of the community members (gente) of �:�'!
��';
apply to these facts. the plazas of San Liris, San Pab10 and:Los '�'
Accordingly, I respectfully dissent from B�ejos and for the other inhabitants of i _
� the majority opinion and would instead af- these plaaas for pasturing cattle by the �I
� f3rm the court of appeals' opinion upholding Payment of a fee per head, etc. . . . Accord- �
, ing to the corresponding rule all the inhab- �
the trial court.
} itants will have enjoyment of benefits of
� I. Community Land Grants Pastures, water, firewood and timber, al-
` ways taldng care that one does not injure ;,
The historical records indicate that some- another. �,'I
� one see�ng a land grant would address a �e Document is clear on its face that iL (
petition to the governor of the region de- �:f�'
' pertains to the Rito Seco and intends to
scribing the land and the individual's qualifi- convey certain rights to the inhabitants-of `
'� cations for ownership. Malcolm Ebright, the three plazas. Beaubien enjoyed private ^G�
Land Grants & Lawsuits in Northern New land: he granted communal rights on that
I Mexico 23 (1994). If the petition was aP- land, pursuant to Spanish custom and tradi-
( proved by the governor, and the alcalde (the tion. Under the Beaubien Document, the
i mayor), then the governor would issue the settlers received a communal right to use
' gran� Id. There were two types of grants of certain lands for their personal needs. Now, };,�
� land fi-om the government: private grants to �e landowners assert rights that their pre- :
individuals who would own the land and who decessors historically exercised in common
icould sell it after they met a requirement of �� a number of other inhabitants of the �' � .
establishing possession of the land; and com- �.ea. Those rights are not recognized either
� munity grants.� Id. at Z4. by statute or case law. '�
' Large private grants were made in an �! ,
effort to settle new areas. The individual II. Communal Grants Are Not
would not gain full title to the property until Recognized In Our Law i •
� he had encouraged a sufficient number of A Territorial Laws �
' people to move into the area, settle it, and In 1863, the year Charles Beaubien execu� ;�I '
I establish communities. ed the Beaubien Document, under Colorado �f
� In a community grant, each settler would Territorial law, a document conveying any j'
� receive an allotment of land for a house, an interest in real estate had to meet several ��
I. As one commentator notes,the chemes Eound in land and communal land, and che imporcance oE '
� thr land tenure and law in Spain and Mexico are Spanish custom. Malcolm Ebright,Land Grants �
I repeated in the southwestern United States in the & Lawsuits in Norrhern New hlecico 21 (1994). ! -
nineteenth century: a tension between private
� �
'JI .�:.. . I.
. ,
� .. ,:.� . : - . - • -- �� �-. ..
� • _.... . . , _ . . . . . . „ .
- — ,.... .. � _ .. � � ' . . • _ . __ '.> .. _ . .. . . ... '� . . .•� � • . ,� ... , _ , . ,�
� _._
, .. • . . ' , ' . ' ..,l 1: .� . . . .. ' 1 .�-:-}!"7..!..
. . ' ' . . �. . . . �; �^e� . . , .. . , ' ..i�� � ' • . ' - • . . '' ._. . - •' '
� . . ' . . . . ,. . . . . . . ' ' � ♦ . . . ' .
� , ...i .. .-._._.._ _...... ' .. - -� ._._ . .. _ _ ...-1'� d.. .....-:.x+..�....�. .. . � � . _. . . .. -.-- � -'�-a"�- 1..:,`�.'._-.
.. ,._ , . .. . ...-. .�.. ... . ..a
+{ 'i 964 Colo. 71 PACIFIC REPORTER, 3d SEKIES
I: �
� � � formal requirements, including the require- adjudica,*,e land claims and how to establish a
i� ;
� ! ments that it incorporate an accurate de- common repository for preserving written
scription of the property and the names of claims to specific lands. See II Colorado and
the grantees: � Its People: A Narrative and Topical History
the christian and surnames of the . .. of the Centennial State 372-73 (Leroy R.
' grantees .. . and . . . an accurate descrip- Hafen ed., 1948).
tion of the premises, or the interest in the Under the common law, the grantor
� premises intended to be conveyed, and merely warranted that he was seised of, or
j shall be subscribed by the par�y or parties possessed of, the title that he purported to
� malQng the same, and be duly proved or convey. The obvious deficiencies of such a
� aclrnowledged, before some officer autho- system led to the eventual enactment of re-
� rized to take the proof or acknowledgment cording acts and other statutory conveyanc-
• of deeds, or by his, her or their attorney in ing requirements in every state. 2 Cathy
� fact. Stricklin Krendl, Colorado Methods of Prac-
Territorial Laws of Colo., lst Sess., An Act tice § 62.1 (4th ed.1998).
i' Concerning Conveyances of Real Estate, 64, The regulation of property transfer is
j 64, § 2 (1861). The requirement that the strictly a matter of state law. Casner, supra,
document identify grantees by name is indic- § 1827. As the Supreme Court has noted,
i�� ative of the territorial legislature's overt de- "[a)s it is indisputable that the general wel-
� cision not to honor community grants that fare of society is involved in the security of
�� failed to mention specific grantees. the titles to real estate and in the public
�� re st � of such titles, it is ob��ious that the
The Beaubien Document flatly fails to � 17
� � meet that requirement.� The Beaubien Doc- Po�'er to legis]ate as to such subjects inheres
iument does not give the christian and sur- in the very nature of government." Am.
names of the grantees, instead orily referring Land Co. v. Zeiss, 219 U.S. 47, 60, 31 S.Ct. ;
� generally to the "cominunity members" and ?00, 55 L.Ed. 82 (1911); see also BFP v. �
� � "inhabitants" of spec�ed villages. That �esolution 'I�-ust Corp., 511 U.S. 531, 544, �
omission is a lega! deficiency that makes the 114 S.Ct. 1757, 1� L.Ed2d 556 (1994) (°It is �
� document invalid as a conveyance under the beyond question that an essential state inter-
� ;
; i operative law. est is at issue here: We have said that `the �
general welfare of society is involved'in the �
Compliance with real property law is a security of the titles to real estate' and the
matter of substantial importance. See N j
American Law of Property § 18.27 (A James Power to ensure that security 'inheres in the
j very nature of[state] government.' ") (altera- �
_ Casner ed., 1952) (hereinafter Casner]. In
i tion in original).
the early years of our history, the questions �
Iof tvho o�med what and who could sell what P��'ate property ownership is nothing �
I were legitirnate and pervasive concerns. As �thout a" 'bright line rule' to determine the �
i a citizenry,we clearly believed in the sanctity validity of a title and of its potential encum- i
� brances with redictabilit and without the �
i of private property and the ownership rights P Y
associated with it. However, we struggled need for litigation.° Michael H. Rubin & E. �
� w�ith how to clarify those rights as against k.eith Carter, Notice of Seizure in Mortgage ,
Foreclosures and Tax Sale Proceedin s The �
� those who would dispute them, and how to g �
secure title to property such that it would Ramifications of Mennonite, 48 La. L.Rev.
� become marketable to a subsequent purchas- �35, 592 (1988). �
er. In fact, in Colorado's early history, one Our legislature adopted a thorough statu- �
� of the issues to which the territorial govern- tory regime intended to ensure titles to real �
i ment fell heir was the question of how to property are secure and marketable. See
� 2. The trial coun found that in 1856, beFore h� , of the requirements for conveying use rights and
executed the Beaubien Document, Charles Beau- proEits 5 prendre, and could satisfy them when
� bien entered into a lease with the United States he chose. Lobato v. Taylor, 13 P.3d 821, 830
� government that met all statutory requirements, (Colo.App.2000).
f thereby demonstrating tha[ Beaubien was aware
:1
, . �
�
� - ..__-•-----�-� —--•__•-.-•• _. ..,__�.----- �- , . . .--..•.- . --- . -..,.-_ � ��.._ ...�5_,....k.•r,�,•,r, . .
. . ... � . . . � ... . .. . - . ... ... .. � . . . . . . � . '�!. ... ' . . ' , . f . .�. . .. � . � � ' .. . �
� .
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, r ,�_ � ;� �� -
� ` ' _:1 \� �,.t� �1-J � -r t 1 Y {�. , . • ,. . � ' ''._ • ' °t•. , .. ._
� 3:� i .�• �' . : - • ' .. '
- �— - '� � ..�. � "..�....._...�.�:......r.._,��.......,.. - - z_..�..,__....�....�._.......���...,_._.�._.__.._.___. .
LOBATO v, TAYLOR coto. 965 � � �
Cite as 71 P.3d 938 (Colo. 2002)
§§ 38--34-101 to 38--35--204, 10 C.R.S. (2001). comport with those laws, and it, therefore, ; .
This court, over the decades, has consistently has no validity as to the landowners here.� �
required conveyances to comply with such The Document intended to create a grant �
laws at the tirne of the document's creatiorr to �
to the members of a community: such a : {
give fiill effect to the goal of security and �.ant was in contravention of the applicable
marketability of real property titles. 5ee, statutes and was,therefore,invalid.
e.g., City of Lakewood v. �VI¢vromatis, 817
P2d 90, 96, 101 (Colo.1991) (concluding that, B. Case Law
although a city filed and recorded a right-of-
way in the road book, because the recorda- Just as our statutes do not recognize com-
tion did not comply with the specific provi- munal grants, so too, case law reaches the ;
sions of the ?888 recording statute, the stat- same result. New YIesico has been the loca- !�
,�.
ute in effect at the time of the road petition, �on of most of the litigation concerning com- i
it did not give constructive notice to subse- munal grants in the United States. Over the ��:
quent purchasers; therefore, because the course of that litigation, those courts have ;
road petition was a transfer oi an interest in declined to recoo j7e. comrnunal a ants, and
real property, it had to comply with all the have further determined that they must look
specifications of the applicable recording act); to the record title to the property, and not
Hallett v. Alexander, 50 Colo. 37, 46, 114 P. inquire behind it into the traditions or histo- -
490, 494 (1911) ("The evident purpase oi the rJ' tt►at might support converting those� -
recording statute is, to provide an effectual �nts into individual grants:
, remedy against the loss accruing to subse- [T�he courts established as a basic princi-
� quent purchasers of real estate arising from ple one of not looldng behind the title, thus
the e.�dstence of secret or concealed convey- precluding any e.�camination of laws and �
� ances thereof unlrnown to the subsequent customs prevailing at the time of annex-
' parchaser. The remedy is made effectual by ation by the United States. ,If title papers
Irequiring every deed to be recorded before it were available to prove the right of use,
� can be of any effect as against such purchas- the tribunals treated the land as belonging !�
� ers."). to the community in fee simple. They also
� That a purchaser would know what he is recognized the right of partition of the ki
` buying by examining the record title to a common lands among the heus of the orig- � '
� parcel of real property, and that an owner inal grantees ... in total disregard of any
could be assured that such record tiUe prop- right of usufruct in descendants of families
erly evidences every legitimate right that which had enjoyed the use of the common
impinges on his fee simple ownership, are lands for generations. '�.!
� matters of no small, import. City of Lake- Ira G. Clark, Water in New Mexico: A His-
` wood 817 P2d at 94 (noting that recording tory of Its Management and Use 36-37 �i •
i acts serve the important purpose of permit- (1987). Another commentator observed that:
' ting a purchaser to rely on the condition of Because it was considered a real property ��
� title as it appears of record and creating an question, it was ]eft to the New Mexico !
accessible history of title). court9 to translate the right of usufruct �
Therefore, very simply, the Beaubien Doc- into common law terms, that is, to define '�
� ument, like every other real property trans- the interest the residents of land grants ;�
, fer, must be held to the standards of the law have in their common lands as opposed to �I •
in effect at the time it was executed in order the interest of the patentees. In general, �I
to protect the certainty and marketability of the New Mexico Supreme Court has decid- I
property interests. The Document does not ed on very narrow legal grounds that the �!
3. Not only does che Document not identify grant- P.3d at 831 (citing In re Estare o(Netvby, 146 �
ees, but it also omiu the words "and heirs and Colo. 296, 299, 361 P.2d 622, 623-24 (1961) ,
assigns." As the court oE appeals noted, the (seating that, at common law, without the use oF
absence of that language in a document convey- words of limitation "and his heirs and azsigns"a .
ing an interest in real property meant ehat the conveyance passed only a life estate)). �
conveyance passed only a life estate. Lobato, 13
�= .�._ e� _ - . . . ...,,. -r� . `' �.. . ,; . . :'� . - . • . •
�� . , . ' . . .
= ....- ., _ . � . , � t _ � . ..
. . ...,, __ . . . . ._. _. . ..�,•, . .. .. . . .. -. . . ' �`. . .-� � . :i ._ • . � . . .
I ;!. �; • .. . .. . . .. 1: ,f � 4 ... . . . . . • ' . .. . 1 , i_'[- . �l:_`��':..
{ . . �
, , _ - -
. , ... ,_.- ' ..� -' ' � -. , . _.. . .. . . . . . .. .. ".-_ .. -'. , - '�
� . .. ... . _... ... . . .. .. . . . '' ''.� .� _ . __. . . . . � _,r..:�,�'-^�
i I
�'' � �
�� 966 Colo. 71 PACIFIC REPORTER, 3d SERIES
;t ; �
� ! patentees have complete title to the�com- on the contrary was claimed by many oth-
! mon lands. As a result, the rights of ers. The claim being in common with and �
; community land�grant residents have been similar to that of the general public in this �
damaged and, in some cases, extinguished. area, the appellants certauily could not
� Michael J. Rock, The Cha.nge in Tenure New acquire a private easement unto them- �
� Mexico Supreme Court Decisions Have Ef- selves. �
Ifected Upon tlze Common Lands of Commu- Martinez, 295 P2d at 214.
; nity Land �rants in New Mexico, 13 Soc. Similarly, in S¢nch,ez v. Taylor, 377 F.2d
i
i Sci. J. 55, 56 (1976). 733 (lOth Cir.196i), the Tenth Circuit de- �
I For example, the Tierra Amarilla Grant clined to give legal significance to community �
was a community grant that a�as patented to rights even in the context of adverse posses- '
' ; an indi��dual, Francisco M�-tinez. The New sion. Id at 738-39.- That court addressed �
Mexico Supreme Court ultimately denied the �e acquisition of the same prescriptive prof- , �i
' right of usufruct upon the common lands its on the Taylor Ranch that the landowners � i
�' portion of the grant, holding that, if the land here claim. In concluding that usage in com- �
i grant were a "private grant, the (Congres- mon by the inhabitants of the area had not � I
sional] act of confirmation merely carried �ested them with prescriptive profits, the �
�� out the treaty obligation; if it were a com- court first noted that "the public cannot ac-
I; munity grant, the common lands were mere- 9�'e by custom or common prescription
;: ly government domain and the confirmation profits a prendre in another's land.° Id. at
;'I constituted a grant de novo to the grantee, 738; see also 3 Herbert Thorndike 'I�ffany,
� Francisco Martinez. Under either view the Re¢l Property § 842 (3d ed. 1939 & Supp. '
! absolute title was vested, by the act of con- 2001) (noting that "there can be no prescrip- �
� firmation in the said grantee." H.N.D. tive right of profit in the public"); id § 935
� L¢nd Co. v. Suazo, 44 N.M. 54^r, 105 P.2d ("�AJ right [by the public] to take prgfits �
i from the land, as distinct from the inere
744, 749 (1940). i
In a successor case in New Me�dco con- right to use the land, cannot be establishe�
� cerning the same land grant, the plaintiffs by custom, since the effect of such a custom
� asked the court to legitimize rights based `"'ould be to e�:haust the profits.").
; ` upon language that conveyed "the right to Final]y, the court observed that in dealing
pasture and water livestock, to cut wood and �th similar claims for profits on land ori�i-
to use the roads upon all the lands, suitable nating from a Mexican land grant, the New '
for such purposes, of the entire Tierra Amar- Me�dco Supreme Court held: �
illa Land Grant." M¢rtine� v. Mundy, 61 "The claun by the appellants that they j
N.M..�i, 295 P2d 209, 214 (1956), overruled have acquired by grant or prescription, the �
on. other grounds by Ev¢ns Fin. Corp. v. right to cut wood, water livestock, pastur- �
Strasser, 99 N.M. 788, 6fi4 P2d 986, 989 age and the use of roads was not shou�n to �
(1983). The court declined. citing H.N.D. have been exclusive to the appellants but �
Land Co. for the proposition that the original on the contraiy was claimed by many oth- ,
! grant conveyed all right� to Martinez and ers. The claim being in common with and (
none to the settlers of the rea on. The court similar to that of the general public in this �
went on to examine the question of whether az'ea the appellants certainly could not ;
the plaintiffs had acquired rights by adverse acquire a private easement unto them- �
possession and concluded that they had not selves. All circumstances must be consid-
because "a prescriptive right cannot grow out ered in determining the acts that would �
of a strictly pernussive use, no matter how lead to a prescriptive right and we do not �
long the use"; and because find such acts present in such force as to �
[tJhe claim by the appellants that they refer to a prescription." �
have acquired by grant or prescription, the Sanchez, 377 F2d at 739 (quoting Ma.rtinez, �
right to cut wood, water livestock, pastur- `?95 P2d at 214). Again applying Colorado l
age and the use of roads was not shown to law•, the Tenth Circuit held that the use of �
have been exclusive to the appellants but land for pasturage, natural products, and �
�
. . i
I �
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- . ` . . . .� . . I " �.
. . . . . •�i��t '�I..�. ?�. �� \•�.� ��r..
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i +.y ,µ� . . -�� ...�1 -' � � ��1� � v �.� : � r . r . .. .,, . . .
,'..i. ; k.tz��. i�'Sk�. ( .�y... t ti�y �- . . r 1 - l� � ' . : :� . ' .: .� ` .�,.
q`.4.3x3 :1,��'S `.e hl�a�rt J�-` �.0 v�� ��°� i 5 '^ �- t�� ` , . ,
.�iKld�,{• :,t�.M.n.'s:�.L•�.w.�t.r.;.n! ,.c�� '^ iLt�....o - �.�.r..�,u�u�.u&,.1l.�...�....�.�:��r.n.,:.....:t......_t..,..x._.....:_r_�.c _ . .
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�` rl�i
LOBATO v. TAYLOR colo. 967
Citea+71 P.3d 938 (Colo. 2002) ,
timber does not ordinarily constitute adverse Initially, I dispute the conclusion that the
possession. Id (citing S�nith �v. Taeun of court should look to e_Ytrinsic evidence at all.'' ;
Fowler, 138 Colo. 359, 367, 333 P2d 1034, However, even considering that eYtrinsic evi- ��
1038 (1959) ("The pasturage of cattle on un- dence, I find complete support in the record
fenced land cannot be regarded as htistile for the trial court's conclusions that the Doc-
and adverse to the owner of such land.")). ument is unambiguous. First, the Beaubien
The Tenth Circuit conciuded that the land- Document is not ambiguous in its legal de-
owners' claims were tantamount to an asser- scription as it pertains to the Taylor Ranch.
tion of unlimited equitable ownership and In fact, the Document describes the property
thus inconsistent with Taylor's fee-simple ti- as "the lands of the Rito Seco." The lands of
tle. Sanchez, 37?F2d at 739. the Rito Seco do not include Taylor Ranch.
Although the majority asserts that the Docu- j�
In short, tlmerican legal tradition has cho- �
�en to honor private property rights, some- ment lists uses, specifically, summer grazing, I,
times to the detrunent of communal rights. `�'ood, and timber, that are only available in �
I have Found no court that would recognize the Taylor Ranch area of the grant,.see maj.
the easements that the landowners here oP• at 948, the trial court made a different �
urge. Because real property rights depend
factual finding to the effect that.the vegeta- i'
upon predictability .and clarity of law, by tion pattern of the current Taylor Ranctr land
attempting to do justice here in contraven- �s identical to that on the land north and
tion of our precedent, we risk injustice eise- adjacent thereto. Further, a witness for the
' where. landowners, an architect, land planner, anc�
e.�cpert in map generating whose testimony
' III. The Beaubien Document Cannot on vegetation the trial court credited, stated
Support Implied Rights that these resources were available through- i
i, out the mountainous areas of the Sangre de
, ;� A Ambiguity Cristo grant, not solely on the Taylor Ranch. �
�: I: which occu ies onl a small ortion the j
� The majority does not dispute that the p y P
court of appeals correctly applied the applica- �'�t.' The trial court considered evidence
� � ble laws to the Beaubien Document and bearing on the location of the landowners' '
agrees that the document cannot act as an use of timber, firewood, and grazing and 'I
' e:�press grant of rights. However, it con- concluded that: "'I'he evidence clearly estab- • .
� cludes that the Document, coupled with ex- lished that none of these locations [lands of
trinsic evidence, supports an implied convey- the Rito Seco] are situate on the land owned
� ance of profits. Maj. op. at 946. I disagree. by the defendant." See a(so Sanchez, 377
� 4. [n La�y Dog Ranch v. te(luruy Rarrcli Corp., depicted vegetation on the Taylor ranch, i�n't
I 965 P.2d t229, 1235 (Colo.1998), we held that it? �
� Colorado generally follows the "four cornecs" A. Yes, the same general patterns would [end
� principle when constn�ing deeds. but condition- to be contiguous. �,
ally allows extrinsic evidence in some circum- Q, pnd carry on Earther north: is that fair to
� stances to determine whether the deed is ambig- say? �
uous. SpeciCically, we sta[ed, " 'In determining q_ Yes. �
whether a deed is ambiguous, � trial couR may Q Su, would it be fair to say that the line that � �
conditionally admit eztrinsic evidence on that �he line dividing the north side of the Taylor j .
issue, but if it is ul[imately determined that che ranch from the lands to the north oF tha[ line '
� documen[ is unambiguous, the conditionally ad- j
� mitted evidence must be stricken.'" Id. (quoting are indistinguishable? �
� O'Brien v. Vi11. Land Co.. 794 P.2d 246, 249 n. 2 • •• M
(Colo.1990)). A. Well, it would be basically a continuation "�
of[he vegetation.
�. Specifically, the witness testified that there are Q, Okay. So, one could put to use the lands �
large timbered portions oF the grant chat are not norch oE the north boundary oF the Taylor ;.�I
located on che Taylor Ranch. Later in the trial, ranch in the same fashion that you could put �'I
the witness, while being examined by the de- �e to [he Taylor ranch, iuelf; is that Fair to
fense, testiFied regarding the area in the grant � ;I
loca[ed to the north oE the Taylor Ranch: say.
Q. [Thc area noRh of che Taylor Ranch] is
A. Yes. �
vegetated in almost che same manner as you've -
i
_...._ _ _. .- .z... — . . . ,
- �.*rr-., . `:.. _ . _ , . . . . •
. � , . • . . .
. . ... . _ _ . . . . ... ' . . . . . . ._ . .. , • ... , .� , . • . � . . . ," . ' '. . .. . .
.� , . • . . , �? - . . . . _ . • � .. .. . ' , . ,.1 .}..
, . , . - . ' .. . • .• �. ' ` ' . .. . .. . . . ` � ' , . .. ' . .f_ ' ..i . � ...
� . ' ,.,� .. __",.., ���, ;.....c_.-.�.._.._-_ .. _:..... .. . . �_. .. - .�,... - ... `'.�,j.;� "-
. . I. .� . . ._�..._.__... ". . . . ... . .. . . _ . . • • t'.��:.y,="
i ' 96$ Colo. 71 PACIFIC REPORTER, 3d SERIES
I'r
�.�
F.2d at 737 (stating that the Beaubien Docu- ment (Third) of Property: Servitudes
I� 1 ment made no mention of land located on the § 12(2) (2000) [hereinafter Restatement] de-
, Taylor Ranch);" Lobato, 13 P.3d at 831 (con- fines a profit a prendre as "an easement that •
cluding that"it is undisputed that the spec�c confers the right to enter and remove timber,
locations referenced in the document are not minerals, oil, gas, game, or other substances
� on defendants' property."). The majority ac- from land in the possession of another. It is
knowledges the trial court's finding that the referred to as a `profit' in this Restatement."
` only locations specified in the Beaubien Doc- The Restatement distinguishes between
� ument are not located on the Taylor Ranch. easements and profits stating "(p]rofits a
i Maj. op. at 94i. Hence, the Document is not prendre are like affirmative easements in
� ambiguous in its legal description. that they create rights to enter and use land
� � 5imilarly, there is no ambiguity in the � possession of another. However, they also �
� failure of Beaubien to mention individual create the right to remove something from
� grantees' names. As I discuss above, he the land." Restatement, supra, § 1?(2) cmt. p
! intended to create a communal grant for the (a). It further clanfies, "Profzts are ease- P
� benefit of the inhabitants of the three plazas. ments plus. Profits are easements (rights to
� Accordingly, I find no basis for view2ng the enter and use land in the possession of an-
�` other) plus the right to remove something
Document as an incomplete or flawed con-
I' , veyance that can give rise to implied rights. from the land." Restatement, supra,
�; § 12(2)cmt. (e) (emphasis in ori�ina]).
I
N. Easements Thus, the Restatement ac]rnowledges that
;I, In any event, the three legal theories ad- profits a prendre provide a greater propert}�
��` vanced by the majority for the creation of an interest to the profit holder and, conversely
;1 easement are not supported by the facts. stated, a greater detrinaent to the servient
i� estate. See 8 David � Thompson, Thomp-
' A Easements Versus Profits A Prendre son on Real Property § 65.03(a) (1994) (not-
; I begin wzth the proposition that I view the ing, "Despite the fact that profits are now �
� distinc±ion between profits a prendre and considered by most writers to be governed
� ' e�sements as material. Although in prepar- by the same set of rules as easements, . ..
1 !
� ing the Resta.tement of Propert}�, the Ameri- [i]t is also clear that functionally the two
can Law Institute (ALI) initially referred to areas deal with distinctly different kinds of
� both easements and profits as "easements," transactions." T'hompson also observes that,
" I in 1995 the ALI reversed its position, once in the Restatement (Third) of Property intro-
� again fmding the distinction between ease- duction (Tentative Draft No. 1, 1989), the
� ments and profits significant. See 4 Richard ALI highlighted that "(tJhe term profit has
R. Powell. Powell on Real Property 34.01[2] been resurrected from the oblivion into which
(2002). As the majority noted, the Restate- it was consigned b� the 1944 Restatement
b. The coun in Sand�ez reasoned that the Be�u- the purchasers. Apparenth� the conftict arose ,
� bien Document must be limited to the lands it when the sale to Taylor ended the Eree use o( l�
i speci[icall� references, ti�hich lands do not in- the lands in [he area Cor pasture. wood, and °
cludc the Taylor Ranch propert��. The onlv other recreational uses. The hardship caused, how- �
option would be to appl}� it to the entire grant. • ever.does not establish a legal right.
H�hich would be inconsistent ���ith Beaubicn's in- gv the tertns o(the a¢reement bet�veen Gil-
tent. Sanciiet, 377 F.2d at 738. The court stat- " `
' pin and the executors of Beaubien's estate,
ed: Gilpin undertook [o cam out cenain commit-
We agree with the trial coun that to construe
the instrument as a dedication of the lands to ments which Beaubien had made to settlers
the extent claimed by [he appellanu would br during his lifetime. Essentiallv, this is a com-
inconsistent with the contemplated sale oF the mitment to convey title to cenain settlers upon
lands remaining unsold at the time, and to receipt of agreed payments. There is no lan-
applv it only to the [Taylor Ranch] would re- guage in the agreement which could be con-
quire a rewriting oF the instrument. None of strued as indicating that ei[her Beaubien or
[he settlers. including thesc defendants, have Gilpin intended the dedication which appel-
) , ever, and do not no�v, assen any privileges Cor lants seek to establish.
� the use of lands after sale and occupancy by Id.
, 5
4
�
� � -_,�.-. „- .�-..- �..— , .. . •-_�. ._ - -rr-�.-.�-=7-.-;r._�.,"�'F..�,,,,.Ti"�`".'^"e"rF''C'�".T�`.�'r,*..�..A`�,YTA7ir.[Y'�'f
. . . . , .y' f .r•;., r:'.��f` .:rl-�, z'r'•i
. . � • ., .. , . . .. .. _.. ._.:ti� ���'\ . i , "t,
.� �� _ .� . _ - r.. .. _. . - � -
' y , 1 ' . . ` ' .•' ' - ' f, . ' . , . . , • . . �� . ' . .. . .
LOBATO v. TAYLOR colo. 969 �
Cite as 71 P3d 938 (Colo. 2002)
,s because it describes a device that is used for (1) a use that is adverse to the owner of �
: a purpose quite different fr�om the other ser- the land or the interest in land against i
zt vitude devices, and occasionally cails for which the servitude is claimed, or '�
i•, somewhat different considerations, if�not dif- (2) a use that is made pursuant to the '�
�S ferent rules."). terms of an intended but imperfectly creat-
is
ed servitude, or the enjoyment of the bene-
Similarly, we have held that profits a pren- fit of an intended but imperfectly created
� dre involve a greater interest than easements servitude.
n
and must therefore be expressly granted. Restatement, supra, § ?.16 cmt. (a) an-
a
Alex¢nder Dazuson, Inc. v. Fling, 155 Colo. nounces that prescription operates in two
`n �99, 603-04, 396 P?d �99, 601 (1964) (holdin
d g separate factual situations. The first situa-
;o �
that a proiit a prendre must be espressly �on is a matter of settled law and occu.rs ';�
granted and cannot be implied from an ease- when the use of the land is without the
m �
c. ,
ment). Hence, under Colorado law, because consent of the owner. See also id. § "?.1 r �.
, prohts a prendre are more onerous to the cmt. (c) ("In the most common situation, the �
P- •y •!I
:o
burdened estate than an easement,� the im- prescriptive use is made without the consent i
portation of laws governing easements is in- of the �ervient owner."). Restatement, su-
R- pra, � 2.16 cmt. (fl further states t}iat to be
appropriate.
��' adverse a use must create a cause of action
�, for interference with an interest in property `
B. Easements by Prescription �e trespass, nuisance, or interference with a �
1t Under Colorado law, an easement by pre-
servitude benefit. To fulfill the definition, j
scription requires a showing of hostile use, the use must be made without authority and {
'�Y without permission of the property owner.
�y without permissian of the owner. The R.e-
nt statement suggests that easements by pre- Id� see also Smith u. Toxun of Fmoler, 138
scription can also arise out of a permissive, Colo. 359, 367, �33 P.:.d 10:34, 1038 (1959)
P- (" 'An adverse claim must be hostile at its
,. ,�_ imperfectly created servitude. This court inception, because, if the orig-inal entry is not ,`
,,� has never previously adopted that section of openly hostile or adverse, it does not become
,� the Restatement and these facts do not war- so, and the statute does not begin to run as
,
. rant such a step. against a rightful owner until the adverse
�•o ciaimant disavows the idea of holding for, or
�t, The Restatement, supra, � 2.16 allows a
prescriptive easement to arise out of a use �n subservience to another, it actually sets up
;at, an exclusive right in himself by some clear,
that began as permissive, under the terms of positive and unequivocal act.' "). Uses made f�
.�_ h
ne
an imperfect conveyance. The section speci- P�.suant to licenses are not adverse. Re- �
� �ies: statement, supra, � 2.16 cmt. (�. Similarly,
.ch A prescriptive use of land that meets the uses made pursuant to servitudes created p.
�nt requirements set forth in 2_17 creates a expressly, by implication, or by necessity, are �I
servitude. A prescriptive use is either not adverse.y �
�,� .r�t 7. As a morc minor point. I would also obs�rve .. Subordination reyuires that the uscr act ,
nd that thc right to erazc ca[tic is probably a proFit� with ❑uthorita[ion, cxpress or implied, (rom
nv- �� prcndre coupled with an easement, Eor it is the the landowner, or under a claim that is deriva- i
• right to make some particular and continuing tive From the laadowner's titte....
;i(_ use of propecty as well as to remove something When a propeRy owncr gives pecTnission to �
�i� from it. use property,the law implirs that a licensc was
��i�. intended. Unlcss additional [acts suggest oth-
8. Restatement, supra, § 2.16 cmts. (� and (g) «.wis�, rt is assumed that [he paRies intended
�rs fuRher provide:
'm� Uses made in subordination to the property �at the property owner re[ain the right to �
�on owner are not adverse, even iF the property revoke the license at any time. Permissive
�°" owner has not given permission,and the use is uses do not give rise to prescriptive rights. �
orn not otherwise auehorized. The reason is that i�;
o� the property owner is not put on notice oF the A use that is initially permissive can become i'
���- need to take steps to protect against the estab- adverse only by express or implied revocation j�
lishment of prescriptive rights.... or repudiation of the license. '
�
�1
(
, ;.�,. . _ ... _ . . . ...._. , ,.•-•. :, .. . . - ... .. ;; . , .. .. .. . . .
_��-r:- - . . . . i
- - �...,.. _ . ., ._ � ' ' . � ._ . _ ,..'r _ . ... . . , ...' '� , -�- - , � . ., . � . .�.
.. . . • . .. .� :) . . � � _,J. .� . . . .,. . . . '.�� i:\ti:-}l: 74-.
�•..._„�
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. . � .. , .. , - . '. . . . ' � .. • . . `. � .... � .
.. : . .... . - _ �i� � .%��`�
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��i
Colo. 71 PACIFIC REPORTER, 3d SERIES �
�i�� 970 �
As to the second factual scenario, the Re- cmt. (a). The Comment suggests that it
�', statement of Property: Servitudes (1944) did makes sense to assume that when the parties �
'�,i not contain the possibility of creating a pres- begin a joint-use arrangement, they intend to I
;'`i criptive right through an intended but imper- create mutual servitudes rather than licens- '
I� fectly created servitude. The earlier Re- es. Id. § 2.16 cmt. (i). �
(.' statement provided: An easement is created In addressing whether a use that is made
�' by such use of land, for the period of pre- P�.suant to the terms of an intended but
I scription, as would be privileged if an ease-
, ment existed, provided the use is (a) adverse, �'Perfectly created servitude results in a
� and (b) for the period of prescription, contin- Prescriptive easement, only the Michigan
� uous and uninterrupted. Restatement of Court of Appeals has adopted the second -
� Property: Servitudes § 457 (1944). It fur- scenario set forth by the Restatement. •
' � ther specified: A use of land is adverse to �'lymauth Canton Cmty. Crier, Inc. v. Prose,
� the owner of an interest in ]and which is or ?42 ivIichApp. 676, 619 N.W2d �25, '30
il may become possessory when it is (a) not (2000) (finding that where the parties executr
; made in subordination to hun, and (b)wrong- ed an express easement that did not fully
ful, or may be made by him wrongful, as to �iculate the parties' intent to pernut load-
I in activities, and those activities occurred
� him, and (c) open and notorious. Id § 458. �
��'' The ALI did not return to the subject of under the mistaken belief that the e.Xpress
�� i
servitudes until the creation of the Restate- easement permitted them, the use created a
ment Thu-d. Restatement, supra, fwd. The Prescriptive easement).
,.I',
i
� Restatement('I'hird) of Property introduction Hence, the Restatement section would a]-
' I (Tentative Draft No. 3, 1993) explains that low for claims of prescriptive use to be made
� the creation of the second portion of the in circumstances in which a document con-
Restatement was precipitated by a desire to veyed certain rights, but did so imperfectly,
provide a more satisfactory theory to resolve and the possessor wishes to validate those
'( cases invol��ing common drives and party nghts even through periods when he was
I � walls than adverse possession, because under m�ng use with pennission. The Restate-
� adverse ossession, the time for assertin
p � ment would itself limit application of the
� j lega] claims to recover the possession of land section primarily to common wall or drive-
I would be limited. way cases.'
The Restatement proposes that uses in- The section is not consistent with Colorado
� volving common driveways, boundary fences, law. First, it is not consistent with the stat-
dams, and party walls are ineptly suited to utes, which provide that adverse possession I
the requirement of adversity because, in occurs only if the use claimed is truly ad- �
these situations, the initial use is permissive verse.1° '
and equity demands the continued right to I
use the common facility; therefore, the Re- Second, it is not consistent with our case
' statement proposes to dispense with the re- law�. This court has consistently held that . ',
� quirement of adversity but othen;zse adopt the same requirement of adversity applies to
� adverse possession law for those circum- acquiring easement and profit rights by pre-
stances. See Restatement, supra, § 2.16 scription as to the acquisition of title by i
9. The comment to the Restatement assumes that Ciciary is obvious, these cases do not present I��
� in cases not imofving common drivewavs, pam Eactual diFFiculties. The second scenario contem- ,
u•alls, or other joint-use facilities, the parties will plates cases involving a daim of prescripti��e use I
affirmacively express their respective intent to based on oral grants or agreements to create a I
create a servitude. See Restatement, supra, servitude. Id. It direcu that such daims should I
§ 2.16 cmts. (h) & (i). It con[emplates two ap- �nly be accepted cautiously because '"they direct- '
� plicable sicuations in which prescription ma}• ly thwart the purpose of the Statute oF Frauds to
' cure a deFect in title in non-common-facilitv con- [orce patties to provide wtitcen evidence of [he I
� texts. The Eirst involves uses pursuant to express existence and terms oF the interesu in lands."
I servitudes that were not in full compliance +N�� Id i
� lhe Stawte of Frauds. Id. § 2.16 cmt. (h). The
� comment notes that since the intent co create a
servitude is clear Erom the writing and the bene- �0. § 38�1-]03, 10 C.R.S.(2001)
, • III
" I
..- --;--._._.__.. •- .�, . _...-_..._ -_-_,_ ,,.� . ._.-_-.._.,... _.�. �-•-�- . . _..-•-�-.�---.--�-•-t..->,•--�,-9---•�-•---',' ��
. . - . , _ . . • . . � , . -� .'�. �
_ - . • ,. . . �, . ,'
��i T; � ti' ; �. y,�+ '�� � t 4 ��i" ` �r. .,- . . - . � , .
�xI � � !;y t A �� i. ~l Y . . . . . , . .� ..
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�sr��;� ' .s. ��.. -,tr �.:ia..:n�6a -�..�..�..ar.:.:.._�..���.,._.�._.<.y..��...,....r..�.........�..�,�__.,.._..s�... • � ..
1 '� .
� LOBATO v. TAYLOR Colo_ 971
( Cite av 71 P.3d 938 (Colo. 2002) '
� adverse possession. See, e.g., Toum of Silver any of his successors in interest. Thompson
� Plume v. Hudson, 151 Colo. 394, 398, 380 defines the elements for an easement by �
� P2d 59, 61 (1963) (holding that to establish a estoppel as:
i prescriptive easement the " `possession must (1) conduct, acts, language or silence i
� be hostile, not only against the true m.d�zer, �ounting to a representation or conceal-
fbut against the world as well. An adverse ment of material facts; (2) the party to be �
� claim must be hostile at its inception, be- estopped either irnows the facts or the
( cause, if the original entry is not openly circumstances require the facts to be im-
�� hostile or adverse, it does not become so, and puted to that party; (3) the truth about the
the statute does not begin to run as against a facts must be unlmown to the party ciaim-
� rightful ozvner until the adverse claimant �g benefit of the estoppel at the time they
�
' disavows . . . a holding by permission.' ") were acted upon; (4) the conduct must �
� (emphasis in Silver Plume); River¢v. Quer- occur with the intention or e.�cpectation that ''
� ee, 145 Colo. 146, 149, 358 P?d 40, 42 (1960); it will be acted upon, or under the circum- '"
(holding that the prerequisites to acquiring a stances that it is both natural and probable
�� prescriptive easement are the continuous, that it will be acted upon; (5) the conduct
jopen, and adverse use of the right of way for must be relied upon by the other party,
the statutory period); Krend], sup'ro, and, thus relying, the other party must be
( � 6a.�(3.1) ("In Colorado, the law of prescrip- led to act upon it; and (6) the other party i
i tion has become an e�ctension of the doctrine �
must in fact act upon the conduct and
of adverse possession, requiring all the ele- change position for the worse. �
( ments thereof."). Thus, the adoption of the �
second prong of the Restatement test, which 7 Thompson, su�ro, § 60.03(b)(3). I
( can create a prescriptive right in the conte.�ct In Colorado case law, easement by estop- I
� o' permissive, consensual use is contrary to pel can sometimes arise out of a parol agree- �
our law, and I would decline to engraft it. ment that.intends to convey a certain right �
IEven if the court adopts the doctrine, the `� a mere license; however, there must be �
� facts of this case do not support its applica- �onduct on the part of the party against i�
tion here. The Beaubien Document is not an Whom the easement is being asserted that
( irnperfectly created servitude. It is a clearly �ounts to a false representation or conceal-
� created communal grant to lands within a ment of material facts. Pagel v. Reyman,
particular area The majorit�s application 628 P2d 166, 168 (ColoApp.1981) (holding �
� of the second prong is not merely curing a that the plaintiffs failed to establish the ele-
small defect in an e.�cpress agreement, as ments for an easement by estoppel in a case t
contemplated by the Restatement. We are involving a road easement for a trailer park) '�
dealing with a document that was quite clear (citing Aubert v. Town of Fruita, 192 Colo.
j in its intent and application; however, it is 372,374-75,559 P.2d 232,234 (1977)). _
, not enforceable at law. In such circum- 'I'he majority relies upon two cases for the '
1 stances, the second prong of the Restate- proposition that the facts before us in this f
ment, even if applied, would not support the case support an easement by estoppel. Both i
creation of prescriptive rights. are water cases, and both deal with the ac-
quisition of ditch rights by parol agreement. ;
C. Easements by Estoppel Both are inapposite, in my mind, because
� I would also decline to apply principles of they are predicated on the underlying policy i
� easement by estoppel, because there is no �at is e�cpressed as follows:
showing here of misrepresentation or con- It is ;ndeed a generally prevailing state �
( cealment of material facts by Beaubien or policy in those states dependent upon irri-
I'
� IL Aubert is a case involving the assertion of 1011-12 (1957) (defendanLS claimed that [he ti- �i
senior water righcs. The couR declined to Find ded owners ro the property were estopped from t j
that the deEendant was estopped from c(aiming contesting their rights because che owners had t"
the rights, relying for the principfes oF estoppel accepced the benefit oF improvements on the
upon a real property ownership case. Jacobs v. Property).
Perry, l35 Co1o. 550, 55i—.i6, 313 P.2d 1008, �
. . .. - : - _
�
__ _. �,-__,.. . .• - -•. .. . .
T:,.s` , - - . - - • ' . •
_ �..- • _ : � , . � �:. ... _. . .. . . . .. . •.. •� . .. _.� •�. . ., �_ , . ' • . ...
. .. . . _ , . .., . �• . • , - , - . .. ` _ _
' - _.. .... ....,_ ., _. ._ . .. _ . . - . _ ...__._. �:�'.:y�=;�::��,�;r:.-
.. _ ___ _ . . . . .. ._ ._,_ _ :. i
fi ' I
I� i 972 Colo. 71 PACIFIC REPORTER, 3d SERIES �
I;
�! � gation largely for successful a�-iculture, implied when a property owner has used one
� '; �
both in the interest of economy and to part of a single piece of property for the
prevent any unnecessary waste of land in benefit of another part of the property and
,° the construction and use of ditches, that, then divides and conveys the property. In
�` where one ditch can answer the purpose of those circumstances, the new possessor of
�' more, the right to use the same ditch is "the previously benefited portion of the land
i granted to others than the owners. may also possess an easement over the previ-
Hoehne Ditch Co. v. Joh.n Flood Ditch Co., ously burdened part of the propert3�." 7
� 68 Colo. 531, 54(}-�1, 191 P. 108, 112 (1920). Thompson, supra, § 6a.03(b)(4).
� In both cases, Hoehne and Graybill v. Cor- Thompson suggests that the elements of
• i lett, 60 Colo. 551, 553, 154 P. ?30, i31 (1916), an easement implied from prior use are: "(1)
the court permitted the establishment of a
� ditch rightrof-way by estoppel without the common ownership followed by a conveyance
necessary element of misrepresentation of a separating the unified ownership; (2) before
li material fact, but only in the context of wa- severance, the common owner used part of
ter nghts. To the contrary, in Bijou Irriga- the property for the benefit of the other part,
tion District v. Empire Club, 804 P2d 175, a use that was apparent, obvious,.continuous
I� 185-�56 (Colo.1991),we declined to permit the and apparent; (3) and the claimed easement
�� i petitioners from asserting that the Ir-rigation is necessary and bene�icial to the enjo,yment
�; ' of the arcel reviousl benefitted" 7 �
�� District was estopped from objecting to use p P y i
i Thom son, su ra, § 60.03(b)(4)(i). The un-
j� of a reservoir for recreational purposes be- p p �
cause, although the District had lrnowledge derlying premise is that, because the re- i
�I tained ro ert was necess to en o ent
� of the facts, there were no findings re�ard- P P Y �7' J Ym i
� ing unreasonable delay in the assertion by of the conveyed property as shown by histor-
; the District of its rights. Also on point is ical use—the grantor must have intended to
i Holbrook Irrigation District v. Arkansos convey the easement with the grant.
� Valley Sugar Beet & Irrigated Land Cu., 42 In Wagner v.`Fo,irlamb, 151 Colo. 481, 379 '
F2d 541 (D.Colo.1929), in which the plain- P�d 165 (1963), the plaintiff constructed a
� tiffs sought certain water rights by operation road across the defendant's property that
�� of estoppel. The court there noted that eq- followed a mule pack or wagon trial that was �
! ` uitable estoppel requires overt acts and dec- in existence when the property was under
, larations of the party charged, designed to common onmership. Id. at 483, 379 P.2d at II
_ induce another to alter his position to his 167. This court recogruzed that an easement �
detriment all of which must be proven by may be an ex�press easement (which appears
clear and convincing evidence. Id at �8• in a deed or contract for the sale of land) or
There has been no showing in this case an implied easement (which arises out of the I
that Beaubien or Gilpin either misrepresen- ea�stence of certain facts implied from the �
ted material facts or intended the landowners transaction). Id at 484, 379 P.2d at 167. The �
to rely to their detriment upon a parol agree- court noted that implied easements have gen-
ment. Indeed, to my l�owledge, the only erally not been looked upon with favor by the
I context in which such a doctrine has been courts. Id. The elements adopted by the
! applied to the acquisition of easements h� court to prove an implied easement were:
! involved ditches and ditch rights, an area in
i which ri�hts are so firmly entrenched as to (1) Unity and subsequent separation of ti- i
be inciuded within the Colorado Constitu- tle; (2) obvious benefit to the dominant
tion.IZ and burden to the servient tenement eaast-
ing at the time of the conveyance; (3) use
D. Easements by Prior Use ,of the premises by the common owner in
Easements by prior use, sometimes re- their altered condition ]ong enough before II
ferred to as easements of necessity, can be the conveyance to show that the change ;
, �
12. Article JCVI, section 7 of the Colorado Consti- corporations Eor rights oC way to conve}' water.
tution establishes the right of all persons and �I
i
� � .r-�-*�r:-v-�-v v i�-Fn-n-•�;rt7'n.T.:v.,rS'""r'rt*�:�isrfl-r�s�^�^-`e-"7Tt?L�sq'e'A'T'nanFt^'�5*"+d'+r.Y.ac
. . � 'S:'��- . �'r—•-•--r.....-.-+-�r�r�r'-;•��"^^'% .,. � ,- � . � �t':.�, ,�,� ��., .� n.'y.T�'.r.'(� l . _(�'' ..
. . . . � '� r'� ' '� '.` •� � = •C.
� � - - � - - •� - - . . . . '.� . .. , . � ,, . .�„i� , :.;•. , .-_ ` .. 'r' , . �r' •i" t. . � . . . .
� =`� � � F -n v .�.`� . 1. • � r..
.t� � L� �i ,� �- t � .� � �I- r,. - . • . .. _ . . . , � . .
i �x " � �� `-�•� . •`r i ' , . . .,i , . . . . , . , , . . � . . • , . - • '
�.�' .�. .. , .. . ., . � ., . - . � . • - , .
_.s`i:+�Y �.�aae..�s..:+.. "- .s_.�..r.!.._.6e.ti�sa.:.......1�a.._t•:.._�...�_,.._..s..�.�.�i��__�.......__._. ....._ _... , � . .
� �r
1'IATA—MEDINA v. PEOPLE Colo. 913 �
Cite as 71 P.3d 973 (Colo. 2003) ,
was intended to be permanent; and (4) the Taylor Ranch. Under those circum-
necessity for the easement. stances, an easement by necessity cannot
Id. at 484-55, 379 P2d at 167. Noting that e�st. �
all four elements must be present to su�port �
the creation of an easement, the courC in V. Conclusion !
j Wagner rejected an easement, finding that �
�; the use was "a terminated intermittent"rath- I do not believe that the landowners here
have established their right to use the Taylor
� er than permanent use. See also Lee v. Sch. Ranch lands as they claim. They cannot, in
; Dist. Vo. R-1, 164 Colo. 326, 332, 435 P.?d my view, rely upon the Beaubien Document
� 232, 236 (1967)(easement by necessity found because it did not comply with the laws in
� because of adequate proof of consistent, per-
( effect at the time of its execution by failing to
f� manent use of road prior to severance). iden ' s ecific
t�fy p grantees. The document
In Bromley v. Lambert & Son, Inc., i52 was not ambiguous, and therefore cannot
+ P.?d �95 (Colo.�pp.1988), at the time of the ,upport rights by implication. Further,.none
! severance of the parcel, the plainti.ffs had no of the theories for implication of an easement
� access to their land escept by right of way apply to these facts.
iover the defendant's property. Id at �96.
� The city later constructed a public street �ccordingly, I would affirm the court of
( adjoining the plaintiffs' property. Id The appeals and thus respectfiilly dissent from I
� court stated: the majority �pinion. I
, Colorado recognizes implied easements -
� that arise by pre-e.�risting use. A showing I am authorized to state that Justice RICE ;
of necessity is required to establish an Joins in this dissent.. �
easement by pre-esisting use. Proof of �`
necessity is required as of the.time of the `" �
O S XET NUMBER SYSiEM 1
severance of the original property into sep- T i
arate estates, because it is an indication of �
the intent of the original grantor and ��
,
grantee that a permanent servitude be im- �
posed on the servient estate in favor of the
dominant estate.
Id (citations omitted); see also Proper w �tonio NIATA—MEDI'iYA, Petitioner, '� •
Greager, 827 P2d 591 (Colo.App.1992) (not- v.
ing that the required necessity is the necessi- The PEOPLE of the State of ;y
ty for the easement at the time of severance, Colorado, Respondent.
not at the time of the court hearing).
Accordingly, to imply an easement by prior No. O1SC70'l. �
�
use, the landowners here would have had to Supreme Court of Colorado, �.I �
show that the mountain property was being En Banc. �
used by Beaubien at the time of the convey- �
ance of the vara strips as a necessary ac�junct June ?, 2003. �
in order to support the viability of the vara p,s Modified on Denial of Rehearing i
strips. Only by that means could the land- June 30, 2003. i
owners demonstrate that Beaubien necessari- �
ly intended to grant to them such rights. �
The evidence does not suggest that Beaubien Defendant was convicted in the District
was then maldng use of the property nor that Court, Pueblo County, Dennis Maes, J., of
Taylor Ranch was necessary to the communi- second degree murder, and he appealed. The '�
ty. Rather, the evidence demonstrates that Court of Appeals, 51 P.3d 1006, Rothenberg, ;;�
no one lived on the property at the time of J., affirmed, and defendant sought certiorari. �'�
the grants, and that the grazing, timber, and 'I'he Supreme Court, en banc, Kourlis, J.,
firewood use occurred on property other than held that: (1) defendant was entitled to crimi- •
�...,._.
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FourSeason
1973:Plat on properly—legal
1973:Plans indicate 41 spaces for Holiday House and a total of 143 spaces
1973:Individual properties sold in 1973
1983 Holiday Inn sold off common areas of Holiday House-No mention of parking
1991 Easement—No mention of joint parking
Parking summary
27 parking spaces inside
4 outside
31 total spaces
38 required by zoning
F.BIiIBIT A
TOWN OF VAIL
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding is made and entered into on the 16`h day of
September 2003 by and between NICOLLET ISLAND DEVELOPMENT CO., a Minnesota
corporation and the TOWN OF VAIL a Municipal corporation, situated in the County of
Eagle, State of Colorado.
WHEREAS, Nicollet Island Development Co. is planning the development and ',
construction of a mixed use project consisting primarily of a five star hotel, a fractional fee club, �'
condominiums, retail, employee housing units and related facilities at 28 South Frontage Road �
i
and 13 Vail Road, Vail Colorado (Lots 9A and 9C, Vail Village 2"d Filing) currently and �
i
commonly known as the Chateau at Vail hotel and the Alpine Standard/Amoco gasoline station; i
WHER.EAS, in connection with its proposed mixed use development Nicollet Island i
I
Development Co. is requesting from the Town of Vail certain entitlements pursuant to its I
applications for a major amendment to Special Development District No. 36, a conditional use
permit for Type III Employee Housing Units, a conditional use permit for a Fractional Fee Club �
and a rezoning of Lot 9A, Vail Village 2°d Filing; '
WHEREAS, in connection with the applications and requested entitlements, Nicollet
Island Development Co. is required by the Town of Vail to make certain off-site/public
improvements (as specifically set forth in detail below) along South Frontage Road and West
Meadow Drive consistent with the Town of Vail Streetscape Master Plan, as amended;
WHEREAS, as a condition to the second reading of Ordinance No. 9, Series of 2003, the
parties are required to enter into this Memorandum of Understanding setting forth the
�
i
;
I
i
responsibilities, obligations and requirements of the parties in connection with said off-
site/public improvements to be performed by Nicollet Island Development Co.;
NOW,THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties hereto agree as follows:
I. DEFINITIONS
1. When used in this Memorandum of Understanding, the following terms shall have
the following meanings unless otherwise specifically defined. The singular shall include the
plural and the masculine gender shall include the feminine and the neuter unless otherwise
required by the context.
"Improvements" shall mean those off-site/public improvements as specifically defined
in Section III below.
"MOU" shall mean this Memorandum of Understanding agreement and all exhibits
annexed hereto.
"Nicollet" shall mean Nicollet Island Development Co., a Minnesota corporation, whose
address is 600 Foshay Tower, 821 Marquette Avenue South, Minneapolis, Minnesota 55402;
Attention: Thomas J,Brink
"Parties" shall mean both Nicollet and Town of Vail.
"Project" shall mean the mixed use project being planned by Nicollet and consisting
primarily of a five star hotel, a fractional fee club, condominiums, retail, employee housing units
and related facilities to be located at the Property, which mixed use project is the subject of
Ordinance Nos. 9 and 10, Series 2003.
2
"Property" shall mean those properties commonly known as the Alpine
Standard/Amoco gasoline station and the Chateau at Vail hotel, located respectively at 28 South
Frontage Road and 13 Vail Road, Vail Colorado - Lots 9A and 9C, Vail Village 2nd Filing.
"Town of Vail" shall mean the Town of Vail, a municipal corporation, whose address is
75 South Frontage Road, Vail Colorado 81657; Attention:
II. PURPOSE
2. The express purpose of this MOU is to establish the mutual responsibilities,
�
obligations and requirements of the Parties hereto regarding the Improvements to be performed
�
by Nicollet in connection with Nicollet's entitlements and Project. These Improvements are
required to be made by Nicollet based upon the design and functionality of the Project or as
specifically required by the Town of Vail in connection with Nicollet's entitlements.
�
III. NICOLLET'S OBLIGATIONS
3. Nicollet shall be responsible, at its sole cost and expense, except as specifically
provided herein, to complete and perform the following (collectively, the "Improvements") in
connection with the Project: I
(a) South Frontage Road. Nicollet shall perform the following
I
improvements along the South Frontage Road, using new and first class materials, as approved
by the Town of Vail and the Town of Vail Design Review Board and in accordance with all
applicable federal, state and local laws, statutes, ordinances and regulations: (i) widen the south
side of South Frontage Road and install a left turn lane in South Frontage Road to the entrance of �
the hotel and a correspondmg left turn lane to the entrance of the existmg Town of Vail Police
Station; (ii) install medians in South Frontage Road from the main roundabout to the western lot
line of the Scorpio Condominium property; (iii) provide all landscaping and lighting within the
i
�
�
proposed South Frontage Road median to be constructed by Nicollet; (iv) install an attached
heated paver sidewalk/walkway (6 to 8 feet wide) adjacent to the South Frontage Road from the
bus stop adjacent to the Weststar Bank east along the Scorpio Condominium property and the
Property to Vail Road including all lighting retaining walls, railings, utility relocation, curb and. '
gutter, drainage and landscaping as necessary; (v) relocate the fire hydrant adjacent to South
Frontage Road; and (vi) pavement overlay from the centerline of South Frontage Road to the
property line of the Property from the main roundabout west to the bus stop adjacent to the
Weststar Bank (subject to timing and coordination of the CDOT overlay project that will be at
,
r
CDOT's sole cost and expense).
(b) Vail Road. Nicollet shall perform the following improvements along the
Vail Road, using new and first class materials, as approved by the Town of Vail and the Town of �
�
Vail Design Review Board and in accordance with all applicable federal, state and local laws, �
statutes, ordinances and regulations: (i) install an attached heated paver sidewalk/walkway (6 to
8 feet wide) adjacent to Vail Road from the South Frontage Road south along the Property to 9 i
Vail Road property, including all lighting retaining walls, railings, utility relocation, curb and
gutter, drainage and landscaping as necessary; (ii) relocate the Spraddle creek piping and install
new box culverts; and (iii) pavement overlay from the centerline of Vail Road to the property
I
line of the Property from the main roundabout (South Frontage Road) south to the property line
of 9 Vail Road. ;
(c) West Meadow Drive. Nicollet shall perform the following improvements �
�
along West Meadow Drive, using new and first class materials, as approved by the Town of Vail �
and the Town of Vail Design Review Board and in accordance with all applicable federal, state
and local laws, statutes, ordinances and regulations: (i) install an attached heated paver ,
4
sidewalk/walkway (6 to 14 feet wide, or as required by the final approved Town of Vail
Streetscape Master Plan for West Meadow Drive) adjacent to West Meadow Drive from the
western most side of Mayors' Park west along the 9 Vail Road property and the Property to the
western most property line of the Property, including all lighting retaining walls, railings, utility
relocation, curb and gutter, drainage and landscaping as necessary and to match and be
coordinated with the final approved Town of Vail Streetscape plan for West Meadow Drive; (ii)
all design improvements along West Meadow Drive from the centerline of the right-of-way to
the property line of the Property and the 9 Vail Road property from the western most side of i
,
Mayors' park west to the western most property line of the Property (specifically including any
drainage and grade tie-ins necessary beyond the western most property line of the Property),
including all drainage, lighting, art, streetscape enhancements, utility relocation, edge treatments,
curb and gutter and landscaping as necessary and to match and be coordinated with the final
approved Town of Vail Streetscape plan for West Meadow Drive.
(d) Pedestrian Walkway. Nicollet shall perform the following improvements
along the western property line of the Property from the South Frontage Road to West Meadow
Drive,using new and first class materials, as approved by the Town of Vail and the Town of Vail
Design Review Board and in accordance with all applicable federal, state and local laws,
statutes, ordinances and regulations: (i) design and install an attached heated pedestrian
sidewalk/walkway along the western property line of the Property from the South Frontage Road
south to West Meadow Drive, including all lighting retaining walls, railings, utility relocation,
drainage and landscaping as necessary.
(e) Spraddle Creek. Nicollet shall perform the following improvements in
connection with Spraddle Creek, using new and first class materials, as approved by the Town of
5
Vail and the Town of Vail Design Review Board and in accordance with all applicable federal,
state and local laws, statutes, ordinances and reb lations: (i) relocate the Spraddle creek piping
and install new box culverts, as necessary.
IV. EASEMENTS
4. Nicollet shall be responsible, at its sole cost and expense, to prepare and submit
all applicable roadway, drainage, and pedestrian easements for dedication in connection with the
Project or the Improvements to the Town of Vail for review and approval by the Town of Vail,
Town Attorney and all such easements shall be filed and recorded with the Eagle County Clerk
and Recorder's Office prior to the issuance of a Temporary Certificate of Occupancy for the
Property.
V. TOWN OF VAIL'S OBLIGATIONS
5. Once the Improvements have been completed by Nicollet and accepted by the
Town of Vail, the Town of Vail shall be responsible for all maintenance, upkeep, watering,
mowing, trimming, weed control, snow removal, debris removal, repair and replacement of any
and all Improvements located in a public right of way or in a public easement, including any and
all cost and expenses associated directly or indirectly therewith (except the Town a�f Vail shall
have no obligation to heat or repair the heat for the sidewalks) and Nicollet shall have no
continuing or further obligations or responsibilities in connection therewith.
VI. FINANCIAL GUARANTEE REQUIREMENTS
6. Nicollet shall provide and post with the Town of Vail a Bond in the total amount
of One Hundred Fifty Percent (150%) of the total cost of the Improvements (as mutually
determined and agreed to by and between Nicollet and the Town of Vail), to provide financial
security to the Town of Vail and to assure the completion of the Improvements by Nicollet. The
6
Bond shall be provided and posted with the Town of Vail prior to the issuance of a building
permit for the Project.
VII. MISCELLANEOUS PROVISIONS
7.1 Amendments. This MOU and all documents and instruments executed in
connection herewith may be amended, modified or supplemented only by a written instrument,
executed by the party against which enforcement thereof may be sought.
7.2 Binding Effect. This MOU shall be binding upon and shall inure to the benefit of
the parties and their respective successors and assigns. The obligations assumed and agreed to
be performed by each party hereunder with respect to the Property shall be binding upon such
party and their respective successors, assigns and transferees. The covenants of the Parties
contained herein are intended by the parties to be covenants which run with the land under
applicable law. Nicollet agrees to make any transfer of any interest in the Property subject to the
obligations contained in this MOU.
73 Colorado Law. This MOU shall be construed and enforced In accordance with �
the laws of the State of Colorado.
7.4 Time of Essence. Time is of the essence of this MOU. In the event the '
provisions of this MOU require any act to be done or action to be taken hereunder on a date
which is a Saturday, Sunday or legal holiday, such act or action shall be deemed to have been
validly done or taken if done or take on the next succeeding day which is not a Saturday, Sunday
or legal holiday.
7.5 Countemarts. This Agreement may be executed in counterparts, each of which
shall constitute a separate document but all of which together shall constitute one and the same
7
agreement. Signature and acknowledgment pages may be detached and reattached to physically
form one document.
7.6 Attornevs' Fees. If legal action is commenced in connection with the
enforcement, interpretation, or breach of any provision of this MOU, the Court as part of its
judgment shall award reasonable attorneys' fees and costs to the prevailing party.
7.7 Invalidity of Certain Provisions. Every provision of this MOU is intended to be i
i
several. In the event any term or provision hereof is declared to be illegal or invalid for any ��
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reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not '�
affect the balance of the terms and provisions hereof, which terms and provisions shall remain
binding and enforceable. I
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7.8 Entire A�reement. This MOU and the documents referenced herein set forth all �
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the covenants, promises, agreements, conditions and understandings among the Parties I
;
concerning the subject matter hereof and there are no covenants, promises, ab eements, '
conditions or understandings, either oral or written, between them other than as are herein set
forth. All negotiations and oral agreements acceptable to both parties have been merged into and
are included herein, it being understood that this MOU supersedes and cancels any and all
previous negotiations, arrangements, understandings and representations and none thereof shall
be used to interpret or construe this MOU. �
7.9 Notices. All notices, certificates or other communications required to be given to �
I
the Town of Vail or Nicollet hereunder shall be sufficiently given and shall be deemed given i
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when delivered, or when deposited in the United States mail, first class, with postage fully �
i
prepaid and addressed as follows: �
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If to the Town of Vail: Town of Vail
c/o
75 South Frontage Road �'
Vail, Colorado 81657 li
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If to Nicollet: Nicollet Island Development Co. ���
c/o Thomas J. Brink '
600 Foshay Tower
821 Marquette Avenue South !
Minneapolis, Minnesota 55402 �,
;I
7.10 No Third Party Beneficiary. This MOU and any financial guarantees required '�
�I
pursuant to its terms are not intended for the benefit of any third party. I
7.11 Indemnification. Nicollet agrees to indemnify and hold the Town of Vail
harmless against any and all liability, loss, damages, costs and expenses, including reasonable
attorney's fees, which the Town of Vail may hereafter sustain, incur or be required to pay by
reason of any negligent act or omission or intentional act of Nicollet, its agents, officers,
employees, contractors, or subcontractors, which is incurred in connection with or is of any
nature whatsoever arising out of the construction or the installation of the Improvements which
Nicollet is required to perform under the terms of this MOU.
7.12 Termination. So long as the Town of Vail approval for the Special Development
District No. 36 —Four Seasons Resort remains valid and has not terminated by passage of time
or otherwise, this MOU may not be terminated, in whole or in part, without the mutual written
consent of the Parties hereto.
9 I
WI3EREFORE, the Parties hereto have executed this MOU as of the date first set forth
above.
NICOLLET ISLAND DEVELOPMENT CO.
By: Thomas J. Brink
Its: Vice President & General Counsel
TOWN OF VAIL
By:
Its:
STATE OF MINNESOTA )
) ss ACKNOWLEDGMENT BY NICOLLET
COUNTY OF HENNEPIN )
This instrument was acknowledged on the day of , 2003, before
me a notary within and for said County by Thomas J. Brink, the Vice President and General
Counsel of Nicollet Island Development Co., a Minnesota corporation, on behalf of the
corporation.
Notary Public
10
STATE OF COLORADO )
) ss ACKNOWLEDGMENT BY TOWN OF VAIL
COUNTY OF EAGLE )
On the_day of , 2003, before me a notary public within and for
said County,personally appeared to me personally
known and by me duly sworn, the of the Town of Vail, a municipality '
named in the foregoing instrument and that the seal affixed to said instrument was signed and
sealed on behalf of said municipality by authority of its ;
acknowledged said instrument to be the free act and deed of said municipality. I
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Notary Public �
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11
ORDINANCE NO. 10
Series of 2003
AN ORDINANCE AMENDING THE OFFICIAL ZONING MAP FOR THE TOWN OF VAIL IN
ACCORDANCE WITH TITLE 12, ZONING REGULATIONS, CHAPTER 5, ZONING MAP;
REZONING LOT 9A, VAIL VILLAGE 2ND FILING, FROM THE HEAVY SERVICE ZONE
DISTRICT TO THE PUBLIC ACCOMMODATION ZONE DISTRICT.
WHEREAS, the Town Council finds the amendment is consistent with the adopted goals,
objectives and policies outlined in the Vail Comprehensive Plan and compatible with the
development objectives of the Town; and
WHERAS, the Town Council finds the amendment is compatible with and suitable to
adjacent uses and appropriate for the surrounding areas; and
WHEREAS, the Town Council finds the amendment promotes the health, safety, morals,
and general welfare of the Town and promotes the coordinated and harmonious development of
the Town in a manner that conserves and enhances its natural environment and its established
character as a resort and residential community of the highest quality; and
WHEREAS, the Town Council finds that the rezoning is necessary to facilitate the
approval of Ordinance No. 9, Series of 2003, amending Special Development District No. 36,
Four Seasons Resort; and
WHEREAS, the Planning and Environmental Commission of the Town of Vail has
reviewed this zoning map amendment in accordance with the approved criteria and findings for a
rezoning as established by Section 12-3-7, Vail Town Code, and has forwarded a
recommendation of approval at the April 28, 2003, Planning and Environmental Commission
hearing; and
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO, THAT:
Ordinance No. 10,Series of 2003
Section 1. Zoninq Map Amendment
The Official Zoning Map of the Town of Vail is hereby amended as follows:
That Lot 9A, Vail Village 2nd Filing shall be rezoned to Public Accommodation
zone district from Heavy Service zone district; as shown on Exhibit A (attached).
Section 2. Effective Date of the Ordinance
Ordinance No. 10, Series of 2003, shall take effect on January 1, 2004, and upon the
adoption of Ordinance No. 9, Series of 2003.
Section 3. If any part, section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid, such decision shall not effect the validity of
the remaining portions of this ordinance; and the Town Council hereby declares it would
have passed this ordinance, and each part, section, subsection, sentence, clause or
phrase thereof, regardless of the fact that any one or more parts, sections, subsections,
sentences, clauses or phrases be declared invalid.
Section 4. The Town Council hereby finds, determines and declares that this
ordinance is necessary and proper for the health, safety and welfare of the Town of Vail
and the inhabitants thereof.
Section 5. The amendment of any provision of the Town Code as provided in this
ordinance shall not affect any right which has accrued, any duty imposed, any violation
that occurred prior to the effective date hereof, any prosecution commenced, nor any other
action or proceeding as commenced under or by virtue of the provision amended. The
amendment of any provision hereby shall not revive any provision or any ordinance
Ordinance No. 10,Series of 2003
previously repealed or superseded unless expressly stated herein.
Section 6. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent
herewith are repealed to the extent only of such inconsistency. This repealer shall not be
construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore
repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED
PUBLISHED ONCE IN FULL ON FIRST READING this 6th day of May, 2003 and a public hearing
for second reading of this Ordinance set for the 7th day of October, 2003, in the Council
Chambers of the Vail Municipal Building, Vail, Colorado.
Ludwig Kurz, Mayor
Attest:
Lorelei Donaldson, Town Clerk
READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this 7tn
day of October, 2003.
Ludwig Kurz, Mayor
Ordinance No. 10,Series of 2003
Attest:
Lorelei Donaldson, Town Clerk
Ordinance No. 10,Series of 2003
Exhibit A " �
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COMPROMISE AND RELEASE AGREEMENT �
THIS COMPROMISE AND RELEASE AGREEMENT ("Agreement") is entered
into as of the date set forth below between Nicollet Island Development Co. ("Nicollet"),
Holiday House Condominium Association, d/b/a Nine Vail Road Condominiums ("Nine Vail
Road")and the Town of Vail("Vail").
WHEREAS, Nicollet is a party to a purchase and sale agreement with Daymer
Corporation for the assumption of Daymer Corporation's purchase agreement with Doramar �
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Corporation, f/k/a DAB Investments, Inc., d/b/a Chateau Vail Holiday Inn for the purchase of E
certain real property located in the Town of Vail, County of Eagle, State of Colorado (commonly
known as the Chateau Vail); and Nicollet is a party to a purchase and sale agreement with
; Moellentine Land Company,LLC far the purchase of certain real property located in the Town of
Vail, County of Eagle, State of Colorado (commonly known as the Alpine Standard), both
properties are more fully and particularly described in Exhibit "A" attached hereto (and shall be
jointly referred to herein as the"Nicollet Property");
WHEREAS,Nine Vail Road is the owner of certain real property located in the Town of
j Vail,County of Eagle, State of Colorado,as more fully and particularly described on Exhibit"B" �
attached hereto("Nine Vail Road Property");
, WHEREAS,Nicollet is currently requesting and pursuing certain entitlements from Vail
in connection with the Nicollet Property and those entitlements are currently contained in
Ordinance Nos. 9 and 10, Series 2003 of the Town of Vail, Colorado, which Ordinances are set
' for final approval by the Town Council on October 7,2003; t _
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� WHEREAS, in connection with the entitlement approval process and as a condition of E'
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Russ Forrest-Compromise and Relea: �greement.doc Page 2 ;
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approval Vail has required that Nicollet provide for the relocation of four (4) existing surface
parking stalls located on the Nine Vail Road Property to a different location on the Nine Vail �
Road Property;
WHEREAS, in connection with the entitlement approval process, Nine Vail Road has
made certain claims and allegations concerning access and parking rights located on the Nicollet
Property;
WHEREAS,Nicollet has agreed to the relocation of the four(4)existing surface parking
stalls located on the Nine Vail Road Property, however,Nicollet disputes and specifically denies
that Nine Vail Road has any rights, claims or privileges to any access or parking rights on the
Nicollet Property;and
WHEREAS, all of the claims, allegations and Vail requirements made, asserted and/or
required by the parties hereto have been fully compromised and settled and the parties hereto
have agreed to release any and all claims that they may have against each other pursuant to the �
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express terms of this Agreement.
�
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� NOW, THEREFORE, in consideration of the sum of one dollar and other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged by all of the E
�
� parties,the parties hereto hereby agree as follows:
1. Contemporaneous with the execution of this Agreement by all of the parties �
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� hereto, Nicollet and Nine Vail Road shall each execute the Air Space Easement Agreement in �
I form and content identical to Exhibit "C" attached hereto and deliver said fully executed Air �
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Space Easement Agreement to the Escrow Agent (as defined below) to be held by the Escrow
Agent pursuant to the instructions of the parties hereto as contained in the Escrow Agreement(as
defined below).
2. Contemporaneous with the execution of this Agreement by all of the parties
hereto, Nicollet and Nine Vail Road shall each execute the Easement Agreement in form and
content identical to Exhibit "D" attached hereto and deliver said fully executed Easement `'
Agreement to the Escrow Agent (as defined below)to be held by the Escrow Agent pursuant to
the instructions of the parties hereto as contained in the Escrow Agreement(as defined below).
3. Contemporaneous with the execution of this Agreement by all of the parties
�
hereto, Nicollet and Nine Vail Road shall each execute the Temporary Construction Easement
Agreement in form and content identical to Exhibit "E" attached hereto and deliver said fully
executed Temporary Construction Easement Agreement to the Escrow Agent (as defined below)
to be held by the Escrow Agent pursuant to the instructions of the parties hereto as contained in
the Escrow Agreement(as defined below).
4. Contemporaneous with the execution of this Agreement by all of the parties
hereto,Nicollet and Nine Vail Road shall each execute the Termination of Easement Agreement
in form and content identical to Exhibit "F" attached hereto and deliver said fully executed
�
Termination of Easement Agreement to the Escrow Agent (as defined below) to be held by the
Escrow Agent pursuant to the instructions of the parties hereto as contained in the Escrow
Agreement(as defined below).
� 5. Contemporaneous with the execution of this Agreement by all of the parties �
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hereto,Nicollet and Nine Vail Road shall each execute the escrow agreement in form and content
identical to Exhibit "G" attached hereto (the "Escrow Agreement") with , as
escrow agent(the"Escrow Agent").
6. Nicollet, together with its shareholders, directors, officers, employees, successors,
assigns, agents, accountants, consultants, and attorneys, does hereby release and forever
discharge both Nine Vail Road, together with its board, employees, unit owners, successors,
assigns, agents, accountants, consultants, and attorneys, and Vail, together with its elected and
appointed officials, employees, successors, assigns, agents and consultants from any and all
claims, demands, debts, causes of actions, suits, express or implied warranties, covenants,
contracts, agreements, easements and promises whatsoever, arising prior to the date hereof, that
Nicollet, together with its shareholders, directors, officers, employees, successors, assigns,
agents,accountants, consultants, and attorneys, ever had, now have or may hereafter have against
either Nine Vail Road, together with its board, employees, unit owners, successors, assigns,
agents, accountants, consultants, and attorneys, or Vail, together with its elected and appointed
officials, employees, successars,assigns, agents and consultants by reason of any matter or thing,
known or unknown, arising prior to the date hereof, including but not limited to those arising out
of or in connection with (i) the ownership, operation, management and functioning of the
Nicollet Property and the Nine Vail Road Property; (ii) the entitlements requested by Nicollet
and to be approved by Vail in connection with the redevelopment of the Nicollet Property; (iii)
Ordinance No. 9, Series 2003 of the Town of Vail, Colorado; (iv)Ordinance No. 10, Series 2003
� of the Town of Vail, Colorado; (v) the June 10, 1991 Easement Agreement, filed of record on
, �
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August 28, 1991 in the office of the Eagle County Recorder, State of Colorado in Book 561 at
Page 54; (vi)Nine Vail Road's involvement with the Nicollet Property, in any capacity, prior to
the date of this Agreement; (vii) any and all historical land uses by and between the Nine Vail
Road Property and the Nicollet Property; (viii) any and all historical parking agreements,
understandings, commitments and/or promises, whether in writing or oral, concerning the
Nicollet Property or the Nine Vail Road Property; (ix) the actual use by Nine Vail Road of the
Nicollet Property for parking, access, ingress and egress, prior to the date of this Agreement; (x)
the actual or perceived dependence of Nine Vail Road to parking, access, ingress and egress to
the Nicollet Property for any purpose whatsoever; (xi) the historical conduct of any past or ?
current owner of either the Nicollet Property or the Nine Vail Road Property; (xii) the actual or
perceived reliance of Nine Vail Road on past or historical rights to use the Nicollet Property for
E
parking access, ingress and egress; (xiii) any and all property right claims against the Nicollet
Property or the Nine Vail Road Property for any use, enjoyment or other purpose by either Nine
Vail Road or any of its past, cunent ar future unit owners or by any past, current or future owner
of the Nicollet Property; (xiv)any and all property use claims against the Nicollet Property or the
Nine Vail Road Property for the use,enjoyment or other purpose by either Nine Vail Road or any
of its past, current or future unit owners or by any past, current or future owner of the Nicollet
Property; (xv) any and all past approvals and/or entitlements, considered, denied or approved by
any governmental body (including, without limitation, Vail) concerning either the Nine Vail
Road Property or the Nicollet Property; (xvi) any and all parking disputes, claims or allegations
by and through the parties hereto concerning the Nicollet Property and the Nine Vail Road
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Russ Forrest Compromise__and Relea� greement.doc Page�
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Property; (xvii) the actual use by any current or past owner of the Nicollet Property of the Nine
Vail Road Property for access, ingress and egress for trash removal; and (xviii) any and all other
matters,directly or indirectly,related to any of the matters referenced above.Notwithstanding the
foregoing, the parties hereto specifically agree that the foregoing releases shall not, in any way,
affect their obligations and duties as specifically contained in this Agreement and the Exhibits.
As such, the parties hereto specifically retain and preserve any claims arising out of a breach of
this Agreement and/or the Exhibits.
7. Nine Vail Road, together with its board, employees, unit owners, successors,
�
assigns, agents, accountants, consultants, and attorneys does hereby release and farever discharge
both Nicollet, together with its shareholders, directors, officers, employees, successors, assigns,
agents, accountants, consultants, and attorneys, and Vail, together with its elected and appointed
officials, employees, successors, assigns, agents and consultants from any and all claims,
demands, debts, causes of actions, suits, express or implied warranties, covenants, contracts,
agreements and promises whatsoever, arising prior to the date hereof, that Nine Vail Road,
together with its board, employees, unit owners, successors, assigns, agents, accountants,
�
consultants, and attorneys, ever had, now have or may hereafter have against either Nicollet,
together with its shareholders, directors, officers, employees, successors, assigns, agents,
accountants, consultants, and attorneys, or Vail, together with its elected and appointed officials,
employees, successors, assigns, agents and consultants by reason of any matter or thing, known
or unknown,arising prior to the date hereof, including but not limited to those arising out of or in
� connection with (i) the ownership, operation, management and functioning of the Nicollet �;
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Property and the Nine Vail Road Property; (ii) the entitlements requested by Nicollet and to be
approved by Vail in connection with the redevelopment of the Nicollet Property; (iii) Ordinance
No. 9, Series 2003 of the Town of Vail, Colorado; (iv) Ordinance No. 10, Series 2003 of the
Town of Vail, Colarado; (v) the June 10, 1991 Easement Agreement, filed of record on August
28, 1991 in the office of the Eagle County Recorder, State of Colorado in Book 561 at Page 54;
(vi)Nine Vail Road's involvement with the Nicollet Property, in any capacity,prior to the date of
this Agreement; (vii) any and all historical land uses by and between the Nine Vail Road
Property and the Nicollet Property; (viii) any and all historical parking agreements,
understandings, commitments and/or promises, whether in writing or oral, concerning the
Nicollet Property or the Nine Vail Road Property; (ix) the actual use by Nine Vail Road of the
Nicollet Property for parking, access, ingress and egress, prior to the date of this Agreement; (x)
the actual or perceived dependence of Nine Vail Road to parking, access, ingress and egress to �
the Nicollet Property for any purpose whatsoever; (xi) the historical conduct of any past or
current owner of either the Nicollet Property or the Nine Vail Road Property; (xii)the actual or
i
perceived reliance of Nine Vail Road on past or historical rights to use the Nicollet Property for
�
� parking access, ingress and egress; (xiii) any and all property right claims against the Nicollet
�
Property or the Nine Vail Road Property for any use, enjoyment or other purpose by either Nine
Vail Road or any of its past, current or future unit owners or by any past, current or future owner �
�
of the Nicollet Property; (xiv)any and all property use claims against the Nicollet Property or the
Nine Vail Road Property for the use, enjoyment or other purpose by either Nine Vail Road or any
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of its past, current or future unit owners ar by any past, current or future owner of the Nicollet �
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Property; (xv) any and all past approvals and/or entitlements, considered, denied or approved by
any governmental body (including, without limitation, Vail) concerning either the Nine Vail
Road Property or the Nicollet Property; (xvi) any and all parking disputes, claims or allegations
b and throu h the arties hereto concernin �
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Property; (xvii) the actual use by any current or past owner of the Nicollet Property of the Nine
Vail Road Property for access, ingress and egress for trash removal; and (xviii) any and all other rs.
matters,directly or indirectly,related to any of the matters referenced above.Notwithstanding the �
foregoing, the parties hereto specifically agree that the foregoing releases shall not, in any way,
affect their obligations and duties as specifically contained in this Agreement and the Exhibits.
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As such, the parties hereto specifically retain and preserve any claims arising out of a breach of
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this Agreement and/or the Exhibits.
8. Vail, together with its elected and appointed officials, employees, successors,
assigns, agents, and consultants does hereby release and forever discharge both Nicollet,together
with its shareholders, directors, officers, employees, successors, assigns, agents, accountants,
consultants, and attorneys, and Nine Vail Road, together with its board, employees, unit owners,
successors, assigns, agents, accountants, consultants and attorneys from any and all claims,
demands, debts, causes of actions, suits, express or implied warranties, covenants, contracts,
i agreements and promises whatsoever, arising prior to the date hereof, that Vail,together with its
elected and appointed officials, employees, successors, assigns, agents and consultants ever had,
now have or may hereafter have against either Nicollet, together with its shareholders, directors, �
officers, employees, successors, assigns, agents, accountants, consultants, and attorneys, and
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Nine Vail Road, together with its board, employees, unit owners, successars, assigns, agents,
accountants, consultants and attorneys by reason of any matter or thing, known or unknown,
arising out of or in connection with(i)the entitlements requested by Nicollet and to be approved
by Vail in connection with the redevelopment of the Nicollet Property; (ii) Ordinance No. 9,
Series of 2003 of the Town of Vail,Colorado;(iii)Ordinance No. 10, Series of 2003 of the Town
of Vail, Colorado; (iv) any and all parking disputes, claims or allegations by and among the
parties hereto concerning the Nicollet Property and the Nine Vail Road Property arising prior to
the date hereof; and (v) all other matters, directly or indirectly, related to any of the matters
referenced above. Notwithstanding the foregoing, the parties hereto specifically agree that the
foregoing releases shall not, in any way, affect their obligations and duties as specifically
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contained in this Agreement and the Exhibits. As such, the parties hereto specifically retain and
preserve any claims arising out of a breach of this Agreement and/or the Exhibits.
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9. Nine Vail Road, together with its board, employees, unit owners, successors,
assigns, agents, accountants, consultants and attorneys, does hereby release and forever discharge
both Doramar Corporation, f/k/a DAB Investments, Inc., d/b/a Chateau Vail Holiday Inn,
together with its shareholders, directors, officers, employees, successors, assigns, agents,
� accountants, consultants, and attorneys, and Daymer Corporation, together with its shareholders,
directors, officers, employees, successors, assigns, agents, accountants, consultants and attorneys �
from any and all claims, demands, debts, causes of actions, suits, express or implied warranties,
covenants, contracts, agreements and promises whatsoever, arising prior to the date hereof, that
Nine Vail Road, together with its board, employees, unit owners, successors, assigns, agents,
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accountants, consultants and attorneys ever had, now have or may hereafter have against either
Doramar Corporation, f/k/a DAB Investments, Inc., d/b/a Chateau Vail Holiday Inn, together
with its shareholders, directors, officers, employees, successors, assigns, agents, accountants,
consultants, and attorneys, and Daymer Corporation, together with its shareholders, directors,
officers, employees, successars, assigns, agents, accountants, consultants and attorneys by reason
of any matter or thing, known or unknown, arising prior to the date hereof, including but not
limited to those arising out of or in connection with (i) the ownership, operation, management
and functioning of the Nicollet Property and the Nine Vail Road Property; (ii) the entitlements
requested by Nicollet and to be approved by Vail in connection with the redevelopment of the
Nicollet Property; (iii) Ordinance No. 9, Series 2003 of the Town of Vail, Colorado; (iv)
Ordinance No. 10, Series 2003 of the Town of Vail, Colorado; (v) the June 10, 1991 Easement
Agreement, filed of record on August 28, 1991 in the office of the Eagle County Recorder, State
of Colorado in Book 561 at Page 54; (vi) Nine Vail Road's involvement with the Nicollet
Property,in any capacity,prior to the date of this Agreement;(vii)any and all histarical land uses
by and between the Nine Vail Road Property and the Nicollet Property; (viii) any and all
historical parking agreements, understandings, commitments and/or promises,whether in writing
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� or oral, concerning the Nicollet Property or the Nine Vail Road Property; (ix) the actual use by
Nine Vail Road of the Nicollet Property for parking, access, ingress and egress, prior to the date
of this Agreement; (x)the actual or perceived dependence of Nine Vail Road to parking, access,
ingress and egress to the Nicollet Property for any purpose whatsoever; (xi)the historical conduct
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; of any past or current owner of either the Nicollet Property or the Nine Vail Road Property; (xii) �
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� the actual or perceived reliance of Nine Vail Road on past or historical rights to use the Nicollet
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Property for parking access, ingress and egress; (xiii)any and all property right claims against the
Nicollet Property ar the Nine Vail Road Property for any use, enjoyment or other purpose by
either Nine Vail Road or any of its past, current or future unit owners or by any past, current or
future owner of the Nicollet Property; (xiv) any and all property use claims against the Nicollet
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property or the Nine Vail Road Property far the use, enjoyment or other purpose by either Nine
Vail Road or any of its past, current or future unit owners or by any past, cunent or future owner
4
of the Nicollet Property; (xv)any and all past approvals and/or entitlements,considered denied or
approved by any governmental body (including, without limitation, Vail) concerning either the
Nine Vail Road Property or the Nicollet Property; (xvi) any and all parking disputes, claims or
allegations by and through the parties hereto concerning the Nicollet Property and the Nine Vail
� Road Property; (xvii)the actual use by any current or past owner of the Nicollet Property of the
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Nine Vail Road Property for access, ingress and egress for trash removal;(xviii)any and all other
matters,directly or indirectly,related to any of the matters referenced above.Notwithstanding the
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affect their obligations and duties as specifically contained in this Agreement and the Exhibits.
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' As such, the parties hereto specifically retain and preserve any claims arising out of a breach of
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this Agreement and/or the Exhibits.
10. It is the specific intent and purpose of this Agreement to release and forever
,I discharge any and all claims, demands, debts and causes of action of any kind or nature
I, whatsoever, whether known or unknown, asserted or unasserted, expressed or implied, whether
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specifically mentioned or not, which may exist or might be claimed to exist at or prior to the date
of this Agreement, (except as to any claims arising out of a breach of this Agreement and the
Exhibits) and the parties hereto hereby specifically waive any right to assert that any claims or
alleged claims have been, through oversight or error, or intentionally or unintentionally, omitted '
from this Agreement. Notwithstanding anything to the contrary herein, the Vail release set forth
in paragraph 8 above shall be and is specifically limited in scope and effect to those specific
issues and claims set forth therein. It is not the intention of the parties hereto(nor the purpose of
the Vail release)that the Vail release should provide a"blanket" or"global"release to any party
hereto, regardless of the fact that those same parties did intend and did provide Vail with a full,
complete,blanket and global release of all claims.
1 L Nicollet and Nine Vail Road hereby acknowledge and agree that all prior
agreements, contracts and understandings (whether written or oral)by and between them shall as
of the date of this Agreement be of no further force and effect and be deemed terminated in all
respects.
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12. The parties hereto represent, covenant and warrant that none of the rights, claims
� or causes of action covered by this Agreement or the Exhibits has heretofare been assigned,
subrogated, given to someone else or otherwise transferred and that the parties are not aware of
any attempt by a third party or entity not a party to this Agreement to assert a right, claim, cause
of action or lien with respect to any of the rights, claim or causes of actions released and
discharged under the foregoing paragraphs of this Agreement.
13. Nine Vail Road represents, covenants and warrants to Nicollet that it (as the
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Association)controls,owns and possesses each and every claim,right ar benefit claimed or made
by Nine Vail Road throughout the approval process of the Town of Vail's Ordinance Nos. 9 and
10, Series 2003, including but not limited to, all claims, demands, easements, covenants,
contracts, agreements and promises related, directly or indirectly to parking rights, privileges,
obligations and/or liabilities. As such, Nine Vail Road hereby irrevocably agrees to indemnify
and hold harmless Nicollet, together with its shareholders, directors, officers, employees,
successors, assigns, agents, accountants, consultants, and attorneys, from and against any and all
claims, demands, debts, causes of action, suits, covenants, contracts, agreements, attorneys' fees ''
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and costs and promises brought or threatened to be brought by any past, current or future unit (',
owner, employee, board member, successor, assign, agent, accountant, consultant or attorney of
� Nine Vail Road relating, directly or indirectly, to any claim, demand, debt, cause of action, suit,
covenant, easement, contract, agreement, promise, matter or thing which is covered by and the
subject matter of the release from Nine Vail Road to Nicollet as contained in paragraph 7 above.
14. The parties hereto hereby acknowledge and agree that this Agreement, together
with the Exhibits are a compromise of doubtful and disputed claims, and that the execution of
j this Agreement and the Exhibits is not to be construed as an admission of liability on the part of
any of the parties hereto, and that such parties expressly deny said liability therefor and intend
merely to avoid litigation with respect to such claims.
15. The parties hereto hereby acknowledge and agree that they have been represented
by legal counsel of their choice in this matter and during the negotiations leading up to this
Agreement and the Exhibits. The parties hereto further acknowledge and agree that they have had �
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an opportunity to review, consider and be advised by their legal representatives regarding the
terms hereof and the binding effect of this Agreement and the Exhibits prior to the execution of
this Agreement and the Exhibits. Further, the parties hereto represent that they will each be
responsible for their own attorneys' fees and costs incurred herein and no party hereto shall be
entitled to, nor seek reimbursement of their respective attorneys' fees and costs from any other
party hereto.
16. This Agreement shall inure to and bind the parties hereto, their respective heirs,
legal representatives, successors,assigns and anyone claiming by,through or under said parties.
17. This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but such counterparts shall together
constitute one and the same instrument.
18. This Agreement, together with the Exhibits and Ordinance Nos. 9 and 10, Series
2003, Town of Vail, Colorado, comprise the entire agreement between the parties hereto and no
promise, inducement or representation other than herein and therein set forth has been made,
offered or agreed upon. This Agreement, together with the Exhibits supersede all prior
agreements, understandings or commitments (whether written or oral) concerning ar relating to
the subject matter of this Agreement and/or the Exhibits and the parties hereto acknowledge that
the terms hereof are contractual in nature and not mere recitals.
19. The parties hereto hereby acknowledge and agree that any controversy or claim
arising out of or related,directly or indirectly to this Agreement and Exhibits attached hereto or a
breach of this Agreement or Exhibits attached hereto shall be resolved by arbitration
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administered by the American Arbitration Association under its Construction Industry
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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
arbitrator(s) may grant any remedy or relief, consistent with Colorado law, that the arbitrator(s)
deems just and equitable and within the scope of this Agreement and/or the Exhibits including,
but not limited to, summary judgment, damages and specific performance of this Agreement
and/or the Exhibits. The parties hereto hereby agree that the arbitrator(s) shall, in the award,
assess arbitration fees, expenses and compensation, including but not limited to, reasonable
attorneys' fees and costs in favor of the prevailing party in the arbitration.
20. The parties hereto agree that this Agreement and the Exhibits attached hereto shall
be governed in all respects by the laws of the State of Colorado.
21. The recitals contained at the beginning of this Agreement and the Exhibits
identified in this Agreement and attached hereto are specifically incorporated herein by reference
and made an integral part of this Agreement.
22. No amendment of any provision of this Agreement or the Exhibits attached hereto
shall be valid and binding unless the same shall be in writing and signed by all of the parties to
� such agreements.
23. Each of the parties hereto, hereby represents and warrants to the other party that
they have the express autharity and power to enter into this Agreement. Further, the parties
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hereto represent and warrant to the other party that the individuals executing this Agreement on
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behalf of said party have the unqualified authorization and authority to execute this Agreement
and bind said party to the express terms hereof.
24. The parties hereto specifically acknowledge and agree that the parties hereto have
negotiated and participated equally in the drafting of this Agreement and the Exhibits attached
hereto. In the event an ambiguity or question of intent or interpretation arises, this Agreement
and the Exhibits attached hereto shall be construed as if drafted equally by the parties hereto and
no presumption or burden of proof shall arise favoring or disfavoring and party by virtue of the
authorship of any provisions of this Agreement or the Exhibits attached hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Compromise and
' Release Agreement effective as of the day of October 2003.
NICOLLET ISLAND DEVELOPMENT CO.,
� a Minnesota corporation,
By: Thomas J.Brink
Its: Vice President and General Counsel
HOLIDAY HOUSE CONDOMINIUM ASSOCIATION,
d/b/a NINE VAIL ROAD CONDOMINIUMS,
a Colorado
By:
' Its:
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TOWN OF VAIL,
a Colorado
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RECORDING REQUESTED BY
AND WHEN RECORDED,MAIL TO:
Nicollet Island Development Co.
600 Foshay Tower
821 Marquette Avenue
Minneapolis. Minnesota 55402
Attention: General Counsel
EASEMENT AGREEMENT
This Easement Agreement ("Ageement") is made this day of October 2003, by
and between Nicollet Island Development Co., a Minnesota corporation ("Grantor") and
Holiday House Condominium Association d/b/a Nine Vail Road Condominiums, a Colorado
(hereinafter referred to as the"Grantee"and/or"Association").
RECITALS
WHEREAS, Grantor is the owner of certain real property located in the Town of Vail,
I County of Eagle, State of Colarado ("Property") as more particularly described on Exhibit A
hereto.
WHEREAS, Grantee is the owner of certain real property located in the Town of Vail,
County of Eagle, State of Colorado (`Benefited Land")as more particularly described on Exhibit
B hereto.
WHEREAS, Grantee desires to acquire and Grantor desires to grant two easements over
portions of the Property for: (i) access, ingress and egress, as specifically delineated on the map
attached hereto as Exhibit C (the "Access Easement Area"); and (ii) parking, as specifically
delineated on the map attached hereto as Exhibit D (the "Parking Easement Area"). The Access
' Easement Area and the Parking Easement Area are more particularly described on Exhibit E
attached hereto and shall be sometimes jointly referred to herein as the Easement Area.
NOW, THEREFORE, far good and valuable consideration,the receipt and sufficiency of
which is hereby acknowledged,the parties agree as follows:
i
1. Easements. Grantor hereby grants to Grantee and its successors in interest for use
by the Association's employees, customers, invitees, guests, agents and unit owners (the
"Permittees") the following nonexclusive, perpetual, appurtenant easements (collectively, the
"Easements")upon the terms and conditions herein described:
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1.1 Access Easement. An easement far reasonable access, ingress and egress �,'
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over the Access Easement Area as presently or hereafter constructed, so as to
provide for the passage of motor vehicles and pedestrians from and to the public
right-of-way abutting the Access Easement Area(the"Access Easement").
1.2. Parking Easement. An easement for reasonable use of up to six(6)parking
stalls in the Parking Easement Area, as presently ar hereafter constructed, at such
location as determined by Grantor (or its successors and assigns) from time to
time, for the parking of up to six (6) motor vehicles (the "Parking Easement").
The Parking Easement is for the use by the Permittees only and then only as
specifically determined and directed by the Association from time to time. All
motor vehicles utilizing the Parking Easement shall do so by and through the valet
parking service operated on the Property. In no event shall the Parking Easement
be used for delivery or truck parking, motorcycle parking, bike parking, trailer
parking, motor home parking, snowmobile parking, or any motorized vehicle not
equipped to be operated on the public streets of the Town of Vail and/or the State
of Colorado. The Parking Easement shall not be used for the storage of any motor
vehicles ar other items ar things or any other similar purposes that would involve
the prolonged use of the Parking Easement.No unit owner or other Permittee shall
use the Parking Easement without the express authorization from the Association.
All of the unit owners or other Permittees rights hereunder shall only exist by and
through the Association and no individual rights are granted or intended to be
granted to any person or entity other than the Association.
13 Reasonable Use of Easements. The rights to the Easements granted
pursuant to this Agreement: (i) shall at all times be exercised in such a manner as
to not materially interfere with, obstruct or delay the conduct and operation of any
business conducted on the Property, including without limitation, public access to
and from said business; (ii) are subject in all respects to the rights of Grantor, all
future owners of the Property and the permittees of Grantor and such future
owners to use the Easement Area for any lawful purpose, subject to the rights of
the Association and its successors and its Permittees to use the Easements set
forth herein; and (iii) shall be used primarily by the Association as a means of
providing the Association with overflow parking capacity.
I 1.4 Repair and Restoration Activities. After substantial completion of the
building to be initially constructed on the Property by Grantor, all construction
and repair activities within the Easement Area by Grantor and its agents,
successors and assigns or any permittee of the Property, shall be at Grantor's (ar
its successors and assigns) sole cost and expense and shall be conducted in
compliance with the following requirements: (i) all utilities (if any) in the
Easement Area shall be installed below the ground level or surface of the
Easement Area; (ii) no construction or repair activities within the Easement Area �
shall be conducted in the months of November, December ar January, except in �
case of an emergency; and (iii) except in cases of emergency, no substantial work �
I shall be undertaken that would adversely effect the Association's rights hereunder G
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, without advance written notice to the Association and such wark shall be
� conducted so as to not unduly or unreasonably disrupt the use of the Easements by
the Association.
1.5 Maintenance of Easement Area. Grantor and each future owner of the
Property (or its successors and assigns), shall be responsible to operate and
maintain, or cause to be operated and maintained, in good order and condition, at
its sole cost and expense,the Easement Area.
2. Insurance. Throughout the term of this Agreement, the Grantor and the Grantee
shall procure and maintain, or cause to be procured and maintained, general and/or
comprehensive public liability and property damage insurance against claims for personal injury,
death, or property damage occurring upon the Property, with single limit coverage of not less
than an aggregate of Two Million Dollars ($2,000,000.00) including umbrella coverage, if any,
and naming each other as additional insureds.
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� 3. No Rip,hts 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 Area. No easements, except those expressly set forth in Section 1 shall be
implied by this Agreement; in that regard, and without limiting the foregoing, no easements for
� signage of kind or type are granted or implied to Grantee.
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' 4. Remedies and Enforcement.
4.1 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 equitable
remedies from the consequences of such breach, including payment of any
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amounts due and/or specific performance.
4.2 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
I 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 i;.
j law). Notwithstanding the foregoing, in the event of (i) an emergency, (ii) �
� blockage or material impairment of the easement rights, and/or (iii) the
� unauthorized parking of motor vehicles on the Property, a party hereto may �
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immediately cure the same and be reimbursed by the other party upon demand for
the reasonable cost thereof together with interest at the prime rate, plus two
percent(2%),as above described.
43 Lien Ri�. 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 parties'
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
Colarado; provided, however, that any such Assessment Lien shall be subject and
subordinate to(i)liens for ta�ces and other public charges which by applicable law
' are expressly made superiar, (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 not
recorded, prior to the date of recordation of said notice of lien; and (iv) all
I management and other agreements entered into with respect to the operation and
i management of the Property, whether or not recorded, prior to the date of the said
I 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 recarding same shall record an appropriate release of such
notice of lien and Assessment Lien.
�
4.4 Remedies Cumulative. The remedies specified herein shall be cumulative
and in addition to all other remedies permitted at law or in equity.
5. Miscellaneous.
5.1 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) and then only after
receiving the prior written consent of the Town of Vail to such modification,
amendment or termination.
5.2 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.
�
5.3 Covenants to Run with Land. It is intended that each of the easements, �
covenants, conditions, restrictions,rights and obiigations set forth herein shall run
with the land and create equitable servitudes in favor of the real property benefited
II 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,
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assigns,heirs,and personal representatives.
5.4 Acce tp ance. Any future grantee of the Property or the Benefited Land, by
acceptance of a deed conveying title thereto or the execution of a contract for the
purchase thereof, whether from an original party or from a subsequent owner of
such property, shall accept such deed or contract upon and subject to each and all
of the easements, covenants, conditions, restrictions and obligations contained
herein. By such acceptance, any such grantee shall for itself and its successors,
assigns, heirs, and personal representatives, covenant, consent, and agree to and
with the other party, to keep, observe, comply with, and perform the obligations
and agreements set forth herein with respect to the property so acquired by such
grantee.
5.5 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 for notice hereunder by like notice to the other
party. The notice addresses of the Grantor and Grantee are as follows:
Grantee: Holiday House Condominium Association,
d/b/a Nine Vail Road Condominiums
P.O.Box 5733
Vail,CO 81658-5733
Attention:Association President
Grantor: Nicollet Island Development Co.
600 Foshay Tower
821 Marquette Avenue South
Minneapolis,NIN 55402
I Attention: General Counsel
5.6 Governing Law. The laws of the State of Colorado shall govern the
interpretation,validity,performance, and enforcement of this Agreement.
5.7 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.
' S.8 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
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considered an agreement that runs with the land and that is not rejectable, in
whole or in part, by the bankrupt person or entity.
5.9 Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall constitute one and the same instrument.
5.10 Representations.Each of the parties hereto, hereby represents and warrants
to the other pariy that they have 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 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.
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first written above.
"GRANTOR"
Nicollet Island Development Co.,
a Minnesota corporation
By:
Thomas J. Brink
Its: Vice President and General Counsel
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on ,2003, by Thomas
J. Brink, the Vice President and General Counsel of Nicollet Island Development Co., a
Minnesota corporation,on behalf of the company.
Notary Public
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GRANTEE
Holiday House Condominium Association,
d/b/a Nine Vail Road Condominiums,
a Colorado
By:
Its:
By:
Its:
STATE OF COLORADO )
) ss. t
COUNTY OF EAGLE )
This instrument was acknowledged before me by as its
and as its of Holiday House
Condominium Association, d/b/a Nine Vail Road Condominiums, a Colorado ,
on behalf of the Association.
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
A. 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 Colarado,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 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 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 41'47"and along the West line of said Lot
A, 110.00 feet;
- thence on an angle to the left of 73 degrees 53'12", 156.13 feet to the West line of Vail
Road;
- thence on an angle to the right of 73 degrees 53'12"and along said West line 29.15 feet;
- thence on an angle to the right of 106 degrees 06'48", 156.13 feet to the West line of said
Lot A;
- thence on an angle to the left of 134 degrees 17'11", 67.00 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", 86.00 feet;
- thence on an angle to the right of 102 degrees 13'17", 101.50 feet,more or less to the
Northerly line of West Meadow Drive;
- thence on an angle to the right of 38 degrees 13'30"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 23'12", an arc distance of 58.52 feet to the
Westerly line of Lot C;
- thence on an angle to the right of 84 degrees 48'35"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 00'00"and along said South right-of-way
line 300.00 feet,more or less,to the true point of beginning.
� TOGETHER WITH AN EASEMENT for Ingress and Egress to and from subject property
described as follows: �
A triangular easement at the Northwest corner of a part of Lot A of Amended Map of Sheet 1 of ��
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2 of Vail Village Second Filing, County of Eagle, State of Colorado more particularly described I''
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as follows:
- Commencing at the Northeast corner of Section 7,Township 5 South,Range 80 West of
the Sixth Principal Meridian;
- thence Southerly and along the East line 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, 178.09 feet to the Northwest corner of said Lot A and to the true point of beginning,
- thence on an angle to the left of 100 degrees 41'47"and along the West line of said Lot
A, 65.44 feet;
- thence on an angle to the left of 90 degrees 00'00", 5.00 feet;
- thence on an angle to the left of 63 degrees 29'S1", 65.86 feet to the North line of said
Lot A;thence on an angle to the left of 105 degrees 48'22"and along said North line of
35.00 feet to the true point of beginning;
Also,
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j TOGETHER WITH an Easement far Ingress and Egress to and from subject property described
as follows:
A triangular easement at the Southwest corner of 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:
- Commencing at the Northeast corner of Section 7, Township 5 South,Range 80 West of
the Sixth Principal Meridian;
� - thence Southerly and along the East line 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 178.09 feet to the Northwest corner of said Lot A;
- thence on an angle to the left of 100 degrees 41'47"and along the West line of said Lot
A,95.00 feet to the true point of beginning;
- thence on a curve to the left,having a radius of 15.00 feet,a central angle of 70 degrees
18'45",an arc length of 18.08 feet to a point of tangent;
, - thence along said tangent, 58.05 feet;
- thence on an angle to the right of 176 degrees 25'33", 67.00 feet to the West line of said
Lot A;
� - thence on an angle to the right of 73 degrees 53'12"and along said West line 15.00 feet,
more or less,to the true point of beginning,County of Eagle, State of Colorado
B. PARCEL B:
, A PART OF LOT A OF AMENDED MAP OF SHEET 1 OF 2 OF VAIL VILLAGE, SECOND
I FILING, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY �
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DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT A; THENCE SOUTH
79 DEGRESS 41 MINUTES 13 SECONDS EAST AND ALONG THE NORTHELY 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
DEGRESS 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, TOGETHER WITH AN EASEMENT FOR
INGRESS AND EGRESS BEING A PART OF LOT A OF AMENDED MAP OF SHEET 1 OF
2 VAIL VILLAGE, SECOND FILING, COLINTY OF EAGLE, STATE OF COLORADO,
MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE
NORTHEASTERLY CORNER OF LOT A; THENCE SOUTH 0 DEGREES 23 MINUTES 00
SECONDS EAST AND ALONG THE EASTERLY LINE OF SAID LOT A, A DISTANCE OF
125.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 73 DEGREES 30
MINUTES 12 SECONDS WEST A DISTANCE OF 156.13 FEET TO A POINT OF
INTERSECTION WITH THE WESTERLY LINE OF SAID LOT A; THENCE SOUTH 0
DEGREES 23 MINUTES 00 SECONDS EAST AND ALONG WESTERLY LINE A
DISTANCE OF 2915 FEET; THENCE SOUTH 73 DEGREES 30 MINUTES 12 SECONDS
EAST A DISTANCE OF 15613 FEET TO A POINT OF INTERSECTION WITH THE
EASTERLY LINE OF SAID LOT A; THENCE NORTH 0 DEGREES 23 MINUTES 00
SECONDS WEST AND ALONG SAID EASTERLY LINE A DISTANCE OF 29.15 FEET TO
THE TRUE POINT OF BEGINNING,COUNTY OF EAGLE, STATE OF COLORADO.
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EXHIBIT B
LEGAL DESCRIPTION OF BENEFITED LAND
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 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 an 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 beginning;
- thence on an angle to the left of 73 degrees 53'12", 156.13 feet to the West line of Vail
Road;
- thence on an angle to the right of 73 degrees 53'12"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
00'15",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.
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EXHIBIT C ,
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DEPICTION OF ACCESS EASEMENT AREA
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EXHIBIT D
DEPICTION OF PARKING EASEMENT AREA
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EXHIBIT E
LEGAL DESCRIPTION OF EASEMENT AREA
A. ACCESS EASEMENT AREA.
[TO BE DETERMINED]
B. PARKING EASEMENT AREA.
[TO BE DETERMINED]]
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RECORDING REQUESTED BY
AND WHEN RECORDED,MAIL TO:
Nicollet Island Development Co.
600 Foshay Tower
821 Marquette Avenue
Minneapolis. Minnesota 55402
Attention: General Counsel
TERMINATION OF EASEMENT AGREEMENT
This Termination of Easement Agreement ("Agreement") is made this day of
October 2003, by and between Nicollet Island Development Co., a Minnesota corporation
("Grantor") and Holiday House Condominium Association d/b/a Nine Vail Road
Condominiums, a Colorado (hereinafter referred to as the "Grantee" and/ar
"Association").
RECITALS
�
! WHEREAS, Grantor is the owner of certain real property located in the Town of Vail,
County of Eagle, State of Colorado ("Nicollet Property") as more particularly described on
Exhibit A hereto.
WHEREAS, Grantee is the owner of certain real property located in the Town of Vail,
County of Eagle, State of Colorado ("Nine Vail Road Property") as more particularly described
on Exhibit B hereto.
WHEREAS, Grantee and Grantor desires to confirm that certain revocable easements
concerning portions of the Nicollet Property and the Nine Vail Road Property have not been
renewed and are hereby terminated.
i NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged,the parties agree as follows:
� 1. Termination of Easements. Grantor and Grantee, for themselves and their
��, respective successors in interest hereby verify that the terms, conditions and provisions of the
� Revocable Easement Agreement dated June 10, 1991, as amended and renewed, filed of record
on August 28, 1991 in the office of the Eagle County Recorder, State of Colorado in Book 561 at °1
Page 54 ("1991 Revocable Easement Agreement"), has not been renewed by the parties to the �''
1991 Revocable Easement Agreement and, further,the parties hereto confirm and attest that said
� 1991 Revocable Easement Agreement has terminated in all respects.
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2. Miscellaneous.
2.1 Amendment. The parties agree that the provisions of this Agreement may
be modified or amended, in whole or in part, only by the written consent of the
parties hereto or such successors and assigns.
2.2 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.
2.3 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 for notice hereunder by like notice to the other
party. The notice addresses of the Grantor and Grantee are as follows:
Grantee: Holiday House Condominium Association,
d/b/a Nine Vail Road Condominiums
P. O. Box 5733
Vail, CO 81658-5733
Attention:Association President
Grantor: Nicollet Island Development Co.
600 Foshay Tower
821 Marquette Avenue South
Minneapolis,MN 55402
Attention:General Counsel
2.4 Governin�. The laws of the State of Colorado shall govern the
interpretation,validity,performance,and enforcement of this Agreement.
2.5 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.
2.6 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 ar entity.
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2.7 Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall constitute one and the same instrument.
2.8 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 and to terminate the 1991 Revocable Easement Agreement as
provided 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.
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first written above.
"GRANTOR"
Nicollet Island Development Co.,
a Minnesota corporation
By:
Thomas J.Brink
I Its: Vice President and General Counsel
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� STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
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This instrument was acknowledged before me on ,2003, by Thomas
J. Brink, the Vice President and General Counsel of Nicollet Island Development Co., a
, Minnesota corporation,on behalf of the company.
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"GRANTEE"
i Holiday House Condominium Association,
d/b/a Nine Vail Road Condominiums,
a Colorado
By:
Its:
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� STATE OF COLORADO )
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COUNTY OF EAGLE )
This instrument was acknowledged before me by as its
and as its of Holiday House
Condominium Association, d/b/a Nine Vail Road Condominiums, a Colorado ,
on behalf of the Association.
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EXHIBIT A
LEGAL DESCRIPTION OF NICOLLET PROPERTY
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A. PARCEL A:
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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 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 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 41'47"and along the West line of said Lot
A, 110.00 feet;
- thence on an angle to the left of 73 degrees 53'12", 156.13 feet to the West line of Vail
Road;
- thence on an angle to the right of 73 degrees 53'12"and along said West line 29.15 feet;
- thence on an angle to the right of 106 degrees 06'48", 156.13 feet to the West line of said
Lot A;
- thence on an angle to the left of 134 degrees 17'11", 67.00 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", 86.00 feet;
- thence on an angle to the right of 102 degrees 13'17", 101.50 feet,more or less to the
Northerly line of West Meadow Drive;
- thence on an angle to the right of 38 degrees 13'30"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 23'12", an arc distance of 58.52 feet to the
Westerly line of Lot C;
- thence on an angle to the right of 84 degrees 48'35"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 00'00"and along said South right-of-way
line 300.00 feet,more or less,to the true point of beginning.
� TOGETHER WITH AN EASEMENT for Ingress and Egress to and from subject property
'� described as follows:
II A triangular easement at the Northwest corner of 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
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as follows:
- Commencing at the Northeast corner of Section 7, Township 5 South,Range 80 West of
the Sixth Principal Meridian;
- thence Southerly and along the East line 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, 178.09 feet to the Northwest corner of said Lot A and to the true point of beginning,
- thence on an angle to the left of 100 degrees 41'47"and along the West line of said Lot
A, 65.44 feet;
- thence on an angle to the left of 90 degrees 00'00", 5.00 feet;
- thence on an angle to the left of 63 degrees 29'S1", 65.86 feet to the North line of said
Lot A;thence on an angle to the left of 105 degrees 48'22"and along said North line of
35.00 feet to the true point of beginning;
Also,
TOGETHER WITH an Easement far Ingress and Egress to and from subject property described
as follows:
A triangular easement at the Southwest corner of 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:
- Commencing at the Northeast corner of Section 7,Township 5 South,Range 80 West of
the Sixth Principal Meridian;
- thence Southerly and along the East line 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 178.09 feet to the Northwest corner of said Lot A;
- thence on an angle to the left of 100 degrees 41'47"and along the West line of said Lot
A, 95.00 feet to the true point of beginning;
- thence on a curve to the left,having a radius of 15.00 feet,a central angle of 70 degrees
18'45",an arc length of l 8.08 feet to a point of tangent;
- thence along said tangent, 58.05 feet;
- thence on an angle to the right of 176 degrees 25'33", 67.00 feet to the West line of said
Lot A;
- thence on an angle to the right of 73 degrees 53'12"and along said West line 15.00 feet,
more or less,to the true point of beginning,County of Eagle,State of Colorado
B. PARCEL B:
A PART OF LOT A OF AMENDED MAP OF SHEET 1 OF 2 OF VAIL VILLAGE, SECOND I!
'� FILING, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY �
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Russ Farrest Easement Termination A� x Page 7 ,
_ ---- —------ -- --_
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DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT A; THENCE SOUTH
79 DEGRESS 41 MINUTES 13 SECONDS EAST AND ALONG THE NORTHELY 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
DEGRESS 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, TOGETHER WITH AN EASEMENT FOR
INGRESS AND EGRESS BEING A PART OF LOT A OF AMENDED MAP OF SHEET 1 OF
2 VAIL VILLAGE, SECOND FILING, COLTNTY OF EAGLE, STATE OF COLORADO,
MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE
NORTHEASTERLY CORNER OF LOT A; THENCE SOUTH 0 DEGREES 23 MINUTES 00
SECONDS EAST AND ALONG THE EASTERLY LINE OF SAID LOT A, A DISTANCE OF
125.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 73 DEGREES 30
MINUTES 12 SECONDS WEST A DISTANCE OF 156.13 FEET TO A POINT OF
INTERSECTION WITH THE WESTERLY LINE OF SAID LOT A; THENCE SOUTH 0
DEGREES 23 MINUTES 00 SECONDS EAST AND ALONG WESTERLY LINE A
DISTANCE OF 29.15 FEET; THENCE SOUTH 73 DEGREES 30 MINUTES 12 SECONDS
EAST A DISTANCE OF 156.13 FEET TO A POINT OF INTERSECTION WITH THE
EASTERLY LINE OF SAID LOT A; THENCE NORTH 0 DEGREES 23 MINUTES 00
SECONDS WEST AND ALONG SAID EASTERLY LINE A DISTANCE OF 29.15 FEET TO
THE TRUE POINT OF BEGINNING,COUNTY OF EAGLE, STATE OF COLORADO.
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Russ Fo►rest- Easement Termination A �c Page�
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EXHIBIT B
LEGAL DESCRIPTION OF NINE VAIL ROAD PROPERTY
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 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 an 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 beginning;
- thence on an angle to the left of 73 degrees 53'12", 156.13 feet to the West line of Vail
Road;
- thence on an angle to the right of 73 degrees 53'12"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 degees
00'15",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.
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„ Page 1 of 1
http://www.stanleyfurniture.com/productgallery/PDF%20Files/YOUNG%20AMERI CA/... 10/06/2003
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�u�y 28, Zoo3 NINE VAIL ROAD
Condominiums in Vuil Village
Mr. Russell W. Forrest
Director of Community Development Formerly the Holiday House
Town of Vail
75 South Frontage Road
Vail, Colorado 81657
Re: Holiday House Condominiums d/b/a 9 Vail Road Condominiums
Dear RusselL
In my letter of June 23, 2003 I requested that staff document its opinion and the basis for its
opinion that Nine Vail Road has no claim for parking beyond the four surface spaces on its
property accessed from the entry drive of the Chateau Vail. To date I have received no response
that addresses that question. Therefore, I submit the following information and argument in
support of my request that the Town of Vail expand the conditions for approval of the Four
Seasons Special Development District to include additional parking for Nine Vail Road
Condominiums.
1. Holiday House Condominiums d/b/a Nine Vail Road Condominiums were constructed under
the code of the Town of Vail as indicated by Town of Vail files. It conformed to zoning at the time;
setbacks on Vail Road are marked on the plans and the need for variances for balcony
projections into that setback were waived by the town (see MacMillan to Struble, May 5, 1971 and
Struble to MacMillan, May 7, 1971,Variance application 8/1/72, Rose to Reed August 8, 1972).
2. The property purchased by the condominium owners in 1983 was platted and legally
subdivided by the developer in 1973.
Town of Vail Code Section 13-1-3 (B)states: "Prohibitive Conveyance: No lot or parcel
of land, nor any interest therein, shall be transferred, conveyed, sold, subdivided or
acquired either in_whole or in part, so as to create a new nonconforming lot, or to avoid or
circumvent or subvert any provision of this Chapter.°
It appears that staff is relying on this code section in reaching its opinion that the purchase of the
land in 1983 was an illegal subdivision and therefore severed any claim that the association may
have had to parking on the combined sites.
However, Town of Vail Code Section 13-2-2, Definitions, Subdivision or Subdivided Land, also
states: `A. Meaning: 1.A tract of land which is divided into two(2) or more lots, tracts,parcels,
sites, separate interests (includinp leasehold interests) ...
The Holiday House Condominiums land was platted in 1972 and duly recorded in Eagle County in
1973. The condominium declarations were also recorded and included not only a leasehold
interest in the land, but provision for subsequent purchase by the owners of that leasehold
interest.
Therefore, I believe the condominium association land was properly subdivided according to the
zoning requirements of the Town of Vail in 1973 and that the Town of Vail cannot retroactively
claim an illegal subdivision in 1983 using zoning and subdivision regulations applied to the site
after the leasehold interest describing the subdivided tract had been recorded.
3. The original plan for the Holiday House, approved by the Town of Vail, called for shared
parking with the Holiday Inn. Forty-one spaces were allocated to Holiday House.
9 Vail Road • Vail, CO 81657
800/872-7221 970/479-7100
Plans from 1972 show the ailocation as follows:
27 spaces in the Holiday House garage;
2 spaces at the Holiday House garage entrance;
8 spaces on Holiday House property accessed via the driveway to the Holiday Inn;
4 spaces on Holiday Inn property.
Plans used in 1975 in an application for a fence on Holiday Ho�.ise property show:
27 spaces in the Holiday House garage;
3 spaces at the Holiday House garage entry;
8 spaces on Holiday House property accessed via the driveway to the Holiday Inn;
3 spaces on Holiday Inn property.
Plans used in 1991 show:
27 spaces in the Holiday House garage;
3 spaces at the Holiday House garage entry;
5 (? copy unclear) spaces on Holiday House property accessed via the driveway to the
Holiday Inn;
6 (? Copy unclear) spaces on Holiday Inn property.
In no event were fewer than 3 spaces for Holiday House planned to be located in the Holiday Inn
parking lot.
Further, Town of Vail code Section 12-7A-12 (5) Lapse Of Approval states:
"Approval of an exterior alteration as prescribed by this article shall lapse and become
void three(3)years following the date of approval by the design review board unless,
prior to the expiration, a building permit is issued and c�fnstrucfion is commenced and
diligently pursued to completion. Administrative extEansions shal!be allowed for
reasonable and unexpected delays as long as code provisions affecting the proposal
have not changed. (Ord. 31(2001)§ 7: Ord. 23(1999)§ 1)
While the Town may wish to interpret the approval for the spaces to be constructed on Holiday
House property as lapsed, these ordinances are well beyond the date of permit and construction '
for the Holiday House. Building permits were issued and construction commenced within the
prescribed period. Only a few surface parking spaces on Holiday House property were not
constructed, since the Holiday Inn parking lot adequately served the needs of both buildings.
Regardless of the interpretation of lapse of approval for spaces on Holiday House property, the
spaces in the Holiday Inn lot surely were constructed, although specifically designated spaces for
Holiday House are not identified on any plans or otherwise required.
4. Continued consideration of joint parking requirements for Holiday Inn and Holiday House are
contained in the Town of Vail files. (See plans dated 6/1/72 and 3/27/91; DRB application dated
May 15, 1975; Ruben to Town Council 4 December, 1978; Ruben to McAdams 13 December,
1978; Parking calculation attached to Holiday Inn application for deli 1995.)
5. Until 1989 Holiday House was managed by Holiday Inn wi7h shared facilities and shared
address. No requirement to construct additional parking on the Holiday House site was perceived
due to the shared parking facilities. (See Gillie to Town of Vail Community Development July 2,
1989).
6. Staff is apparently attempting to interpret the easement between DAB Investments Inc. and
Holiday House Condominium Association as eliminating any rights to parking on Holiday Inn
property while securing access to the four spaces constructed on Holiday House property. The
easement contains no such provision; it preserves ingress, egress and travel across DAB
Investment property for access to parking lots as well as specific access to the four spaces on
Holiday House land.
7. Proposed elimination of the driveway from Vail Road to the Chateau Vail parking lots
permanentiy eliminates any possibility of constructing the spaces originally laid out and approved
on Holiday House property. This damages Holiday House Condominium Association by
depriving it of access to shared parking and thus leaves it permanently short of parking in addition
to being non-conforming with respect to parking.
The 46 owners of Holiday House Condominiums and our Association therefore respectfully
request that the Town of Vail recognize that the"current number of parking spaces"as defined in
condition 7 of Ordinance Number 9, Series of 2003 means a number more than the four it has
considered to date.
Sincerely,
�
�����'�.-�� �� ,�"�.�..�'�.�..�-�---
Gwendolyn G. Scalpello
President
Holiday House Condominium Association d/b/a Nine Vail Road Condominiums
Cc: Mr. Ludwig Kurz
Mr. Rod Slifer
Mr. Dick Cleveland
Ms. Diana Donovan
Mr. Bill Jewitt
Mr. Greg Moffet
Mr. Chuck Ogilby
Owners, Holiday House Condominium Association
,v r- �_.�-.
G
.�CHITECTS A,� A
JOSEPH E. MACMILLAN
THELMA FELDHAMER-.4ssoeu.Te �
7471 SOUTH HOLLY STREET
DENVER, COLORADO 80222
TELEPHONE 303 - 757-6496
M9.� 5 f 1711.
Mr. Ed Struble
Building Official
Box 631
Vail, Colorado 81657
Re: �axiances required for Holiday Inn Condoim.nium �ddition
Dear Mr. Str�zble:
gs agreed over the telephone today� pou tir3.11 post our
property and start the varianee application in process Por
the driveway to the proposed main entranee. Mr. Paul Ba.iley
will attend the boaxd meeting at the scheduled 9:00 p. u►.
time on Thursday, May 13� 1971, in your offiee or at a new
location as directed.
Ma.y we have a letter from you stat3ng that, in yonr
opini.on� a variance will not be required f or psrki.ng and
for balcony projections on the drawings as now prepared
and on file in your office. 41e need these questions an-
swered so that the arehitectural control board will give ua
an affir�tive answer on aar request for design approval.
.. On thi s date, we have al so m�iled one set of the
draw�.ngs to Mr. �*ree in Colorado Springs. I also en-
closed eopies of olar correspondence. We hcype t�at he can
respond to this request for informe,tion quite soon.
Thank you for your help in thi.s matter.
Si,nc er ely yovr e�
, �
E.�Y)�.��.�-•-
J seph E. Macl�illaa
JEM:v
CC: Paul Bailey
. N<� ,,��,
v
P'4e�y 7 � 7.J 71
Mr. Ja��ph �. Macl��lla�fl
147�. So�zt� Holly ��r�et
g�nwer, C�l.orado 80222
Sub����t: Holida�r Hou��� Condomini���
Y'ou� l��t�r af` �� 5
In dl$QUSSin� yotzr prop��st� driveway at th� �a.�.n eratr�ne� to �ha
subje�t buildin� wi-�� th� Ta�� M�r�ager, i� h�� b�en d���rmin�d
t��t a va�^�.�nce wi.1J. flo� b� r�qu3.r�ed. xn�tea�d, �h� 3'4wn i� her�-
b� authvr�i�ing you to con�t��at �his dri�r�r�a� �:� s��rar� +�r� yo�r
prelfminar�r p�.ans c�n t�e basi� fiha�� �.f ��d �then �he Tawn is
requ3:red �n remove same, ��g�,a�e��ant �asts �i.il. b� yot�r ���pa��ibil3.t�.
A� �the sam� �i�ne, i�C ha� eam� tb 1igh� that Spraddl� C���k wii�.
7�ave� to be �3,v�rtad and our S�re�t �uper�n��nd�n�, I�. ���� B����,.tt,
�equir�s information as sor�n a� �og�ible on hoca yv� gl�n tcr d�
th�s.
A ua�i�ne�: �v�.13 not be� requ�.r�d far p�rlcing ar ��3a�»}� projeet�:o�s
�ines both �re within fih� �fi��;d�rds re�}�t�,�e�i by ��� ��ifbrm
B�s�lding Cocla.
As w� d3.s�u���.d in aur p�csne c�nver�atior�, � wi�,�, �c�ept any
dc�cision maci� by M�. Pete Tyr�e r�� Ca1.o��do Spr�.ngs.
R�sp����'u�l�,
TOWN 0F VAIL
Ed Str�able
Builciing Of�icial
dw
ce : Mr. T, J. Mir�ger, To�an �nager
- - �� •�_ ;
, � ,PPLICATION TO APPEAR BEFORE THE
, BOARD OF ZOP�ING, APPEALS AND EXAMINERS
Date Application Fi•led
I, Paul T. Bailey , representing Vail K. I. Co.
' � , respectfu(.ly request a variance
from the, requirements of Section _ 4 of the Vail Zoning
Ordinance in order to pro�ect into the street set back with a small
triangle of space at balconies of apts. lI: and 2H and pazt of
basement wall ° See attached Exhibit A.
and/or Section - of the Uniform Building Code
as amende.d and adopted by the Town of Vail in order to
in making a determination on zoning, the Board considers only undue
,
hardship; need for the propased variance; compatibility of the
proposed variance with the surrounding area; effect on tuture develop-
ment of the area and; health, safety, and the weltare of the inhabitants
of the Town.
In Building Code variances, the Board may consider only suitability of
alternate materials and methods of construction and; reasonable in-
terpretations of the provisions of the Code,
The adminis'trai'ive official may challenge any variance granted which
goes beyond the scape of the powers of the Board.
It is understood that a fee of $25.00 payable in. advance and that a
ten ( 10) day posting period is required prior to a public hearing on
the above requests.
Signed•
, s � � , �
Please list adjoining property owners so they may be notified
Gulf Oil Co. , 1708 S. Bellaa.re, Dcnver, Colorado
Mountain States Telephone Co. , 931 l4th Street, Denver, Colorado
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AG�t�IlM�NT I9 MAb� this �� s�ay of , 1991 �.:
G b�tw�e�! �tolida�� Nous• Conda�"i"iva� Associs on, a �t Aaad, �`� =;;!;
� Vai.l, Colorsdc �nd t�AR �:nv�stmanta, �nc. cf 13 Vail Rcad, Vs�l � '
Colnr.�do, both a� �Ca�ql• Cau�e�y, 3t�te o� Cnl4rado. �1� ��.<
CTT ': r�
z Thw pasti�s egre�s +�s tollaw�: ` . .;:°y�:,'
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} 1. Tas ta►�csLS o� L#11� ]I!l�CTI�D `.Y�F.
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,� 1..L 2hr p�rtieR h�v• an inte���nre in xdjcininq r*al •st1►�M� �+�;
�ituat�d in tha City ot Vail, Cai.nty o! Ba�qlt, St�ta O� CO�I�;'�4�,h�.-♦ ;8 .
:< a�d dercr3b�d, r�ap�ativ�.�y, Ra f�a]..low�c. - <<i;�.; .
r: �,�..
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A part cf th� ilarth�a�t an+r-qva►rk�r af 8eatfan 7, �ow�asbi �� ,. ,�,,;•.
� �lo�ttih, �taR • AO N��t a! ths !9l,xtl� princip�,l M�;;�dias �uat�i. ����a� n 'rx;'
��tt o! La�s A, e, s�rd C ot Rs�nd�d t�ap af llh��t l. af� 2,'.::of Vp���, ' ,-���
� Vlil�ge �l��can� •i2inq, County of Eagl�, Bt�t� o! Calorado. �ar;g "
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p�rticularlg �9�scribsd as toliw►s: ' �,...
�;,t,��;,.,
�fY�fi.
Coe9asn�in� �t tri� l�arth�ar� �a�nwr at ilild dlCt1011 7 f ��nc� °���Y;
� �lauth�r�,y �nd •2o�g tho �a�rt lin� ot �h� llarth��st ane-�ar��� �� '; , .
s.:;
i na�a dl�ctiorr 7. 39.30 t�rt �o the sauth ri ght ot May li ;�i o�' U ��a �;,;
� eigh�ay No. b� th�eis a�x a�x angle t�n the riqh� a!' lOq cl�gr��s „��;'.
� 41��7" aer.d alorg said Sar►th riqh! a�' w�y lin� �5.44 tast ko a ;.;��"`
� poi�nt on the Neat Ii.ne raf Vsil Roa►d, said poi�t b�ina t.h�t :-;;�,�
Nocth�ai�t�rly eorna� o� s�eid L�t 1+; th�tiCb co�ntie�e�inq �loaq thf ��'�
j a�ors��rntlo��d line aad along khe rtorkh�rrly lin� at rald 1�s�t �►a "{`��
F��i
152.b5 �`��t to th• tiarthMertwrl�p �orna�r af said Lok A= thw�w+e� an =<,;,�
� �� ingl� to th� �.�ult a! lOfl dagr�efs �i•�?* and a�long ths 1��a�t �'���}� �
linar a! aa�i.d 1�.nt R, 139.15 f�et �a ths true point ot buqinni�gr - ':1..,
th��ce nn s� m�cqie► ta ths 3.ae�t o� 73 �eqrees 53'1Z", 155.13 �e�� • `'`�;�,
,�>;
ta tha Ms�t lin� af 'i►a!]. �ta:dY thenc� on aa angl,e ta khe right cx�
73 deqrses 53'Z2" bnd aloziq said Mrest, line 102.15 l:�att t�wn�e� crn w`':
aa angl� to the right nf QO dsqrefs d4�00", 98.75 �a�t to th* '�:`.��
N�r�harly li�ee of Mest M�adnw Driva; th�n�e an an anqle to the ;�:s
right of 58 d�egre:s 16�39" �nd elong �aid NorCherly Iins =nd "`''�;
alanq a curv� to th�r la,i� hn�wir�g a r�a�ius ot' 175.00 taet, a
esn�re� a��e�Ie of 36 degxe�� np°15", ar� ar.c dl.stence of 109.�17 ;_;,
�s�r1: tr� a �•t�irtik of 1_ang+rt�tg tf�ar�e•a r�l.�ryy �alc1 innyer�t F1fkt� r�l+�r�y :::;
said i�orth�erly line 11.00 teet:; th�nce rrn �n �ngle ta ttte right �k�
of 1�1 dleqc�ss d6''30", 101�5Q �eet; thence on an a,,�2e ta left. nE ''sr
lOZ deqrees 13'l.'1", 56.00 f�e�; th�nce on ar� ancj�.e La �he r i,ghk
�f 40 �yt�e� �O�OQ", 18.ZT ���t; tl�ence an an angl� ta Ch� left
o! 90 dagre�►e� oa�aaN, 6"1.DA fee�, �t�re or i.eg�, tn tha t.rus pnir,t ;��
af beginnin�; contalning 28,3�'1.3�. �quare feet or 0.65 acz�e�, ;':t:
more r,� less.
W#3�*!F'N'T'S ,`�
1Pi1��__ _..af 7
,�
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��,Jy; r'.. : ��.,.; ..f..�^{i��,y.. �.:,k .n:���-�,``R't. d. ", Y_A^Y.;7. �t ?.�� a. F .��'MS:,S• JJ, 1 kaa, '��+ �+ -.a ist � i4
+ ,*. . _ #�. , �t.. k�r ,f,'� 1�}r.�?"• � ',tAf' �
r • :"a�r,�i'���t��«1� �� �f
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�' �F�Q����fi�l�
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i� 1.3 A]►E In��sLa�nt�r In�:. �j• ehate�u Vail HO�.•�d�3/ �na: $��Y.;
�;-�t,
;` l► p�rt ot ttre Noxtheart on�—qut�rtar of S��tioe 'i� T��¢ i S • �'
$ti Saukh, 1tx»g.� 80 Nfst of th� 8ixth �r�s�ci.p�l M�rid-ia� �e�� ��i e� s„' �`"'�
� past o! ,Lot• l�. �, and C ox 11MMnd�A Map �"�' �lh��t �. ri�� ��;� '�'��i�
�h Vil2��� s�cond Tilit�g. County o�C Eaqi�r. ��a�t� b� �ol�or���,. �o��}�u�a� ��,
r�; p�1't1.C1i���cly t�*��x1b�18 a�r fal.IloM�s ' ` ?-'� ;�'�:
� .. .h
��:� ''... � �� � �'� �4�.
s Ca�+�nainq a� ��'t! NOCC��w#� +COCAYwfC O� ���d �QC��Oaf 7t �i�*� C; �� ,�, ,��;
,,. �outihi�rlp i1�'i� i�bl1�' �h! �i/t lint (!�` �1�A l�O�'���1���'� � `��°��,t Q�;, � ;�
< s�l�d 31�ction 7� 39.30 ���� t�r �lae tlouth si�1� o� q� ° � ' �h U�.��: °•� � '",���
., �l.�tiy►ay l�o. 6� th�na� oa aa �nnql� ta th� �..+�ht a� �. � �" ;,�,�f��` , ` � -� .
'� 4: �Z" s n d •l.�n s a i d s o u t h �r i g h t o t v�� �i fi i. �l�f.� ° V'�a +� t'�'�>
� � {� �s.; a �.Y��3
��� point an th* �I�it lin� o! V�l2 l�oad, �• ci �fn�l� '��;� � ,, � ; �,.r�ti;.
Nor��+�ss�s=Iy cora�x of �aid Lo� At �l��hc� c4rrti�v�.;. a� ,�-�K,� ,�1�� ;;t��,
w; xiar�i�ntianvd lin� a��d a]�o,ng �h�r ����:h.�l� �,i�,� Q'� il�rM1� x`��c���►.. , :
�' iS�.65 !`f�t ta s pa3nt on 1��• �r��t1�w�C*c�� c�c�r��rr 9i � .s� $ x„ ��
� •aid po�n� bain tho krus p�oint a� aw�tne�iQ9� �.. t��� �t -� H
to th� �it� Q# �d0 id+�qt��� �1°1!7" en►�9 a�i+�p th� ��u�"�� ,� �n�i��� }�� '`
r L k� ku'Fr t� ��j6• �
Lo� J�. 11p.0a �irtr �l�ea�c� n� a� mn �is �p ��� Z� � �� � ��!'��! � ��F t `
` ��- -
k;�' 5'J•l�", �56.13 !'��t ta th: 1�a� lin�c d� v��l �►i�� c�`` a" ;j� �,�!�in -�,��' ``f�°,���
�, aoql+r ta th� riqh't of 73 d�q��e� 53•1�" ��d a�a�g ��►� � A� l�n� � e�� .
19.!:S lw�ot= th��ie�r on �►n ar�p�.e t� tehe r i��t a! }.OS �t±� , `""�ii`� ` �
0�'��" 136�13 �set to ��►r M�rs� 1l�n� o� •f��d �,pt �r ' � ' Qi�" �g�.` ' # :
,i;� r .+r r ✓ �� �.
� maq�a ta tl��r l��t of 1�� d�qri�rs 1'tr�.1*, 67.06 i�s�tl.; � . - : �,���,�� '{
;; angl• to th� ri q'ht at 90 d�egre�r fl0•40", fe.2�' ��i��r �i Q�i°�i� �
r angl• to thQ 1Ntt o� 90 d�gres� 00'QO", 86.00 ��rt� � .�i`ar��'�l�'`•' ��
ifC
�= �ngls ta tih� right ot 102 d�rgr���e� 13'17', 1111.50 �����,� ,� �'t�r � ,r° ,
2��s ta th� Nor�h�ri.y line af Nrer�,;t M�r�,d�e� Dr�.v�� ���u���-..' . a►ti� 4 �
�` �n l�e ts the ri ht of 38 d� re�rs I�'30" �ncZ aloa �lt� s`� � �;� ,' ��: ::
Naxth�rly► lin� �6d.�7 f�fti �a� a aint n�' curv�rs �hfnc�e �� r�t�pv�-i��rn �r�
? •laeg said Noz�herly ].iaa r�ra� alonq a curv� tq thf li���'��t�►in�,' a�`: �,�
y:; radius of 5�5.00 feet, a c�ntral +�a�gle of �1� d�qr�es 2�'1'�". ttf�'" t����
•rc di��anc� �t SB.S� t�et tr� t�ea NAa�.�ri� ?iet� ot �o� Cs th�i�i�s +��
� on an anql� ta th4 rlqht �� 84 dl�4rs�e� �!8'35" and al.oag �htr � `r'�
„�*,
;�, w••�+rrzy �in� ai �ot C8 �51.x5 �e�t� �a th� gouth riqh� a� w�y ,,:},+
l i�rr d! u.$. l�i ghwa�� Nce. 6' �E��rr�c� s�z� �n anqi r tn thf c t '"ht e�t �0 5�,.�
i� d�gr�s� 00��10" and alonc� tsid Sout�a right o! Ma line 3t��.QQ °�
.,,_"a
tsetp ■ox�� ar 3.as�, ta the tcr�e pain� csf beginn ng. .
::;�;;r;Nr.;�:
�" �001tTf�1llt 1GIT� �n 1�a►s�senr for �ngrs�e� and l�qrsss to �aac� �'raa ".��.
subj�►c� proXr�cty dlsscribe�l a�c t�olllorr�r: c,,.,
°;•�z
]A t�i�nguler r�ase�rent �t the t�arthW��t cacner of a� part of �.�t n '°��'�;
;,r:
eC 7�endwdl Ms�p a� Shest� 2 r�t' � of Vai 1 �t'i l lagre P'i l i nq Nn, 2. , y:"
Counhy nt Sagle, BtAt.�r c�l;' (�r�lr}ra��so mnr.e E�aa:t ir.ulatl.y cleac�r 11��*cl a� �+
�'�l�oMS: .,,,�
�.�,
C+p�retgmair�g �t I:ha l�ort.heeet c :�: rsf Se�ctian 7; Tawnrship 5 '`�
��uth, �tanqe 80, 11��� o� xhe Si��.h Pr3�nci paZ Maeidi�nF �he • `�-x
A�uthr�rly Mnd oa.�e�g �ht �e,�t lins o� usid �sctiari '�, 3�.2� fea�:
�antiinued
Sl1S�flSA1'�5 y>:
p����f 7
;i
r:,
4�7'1t32 G1°•Sb1 H'°Oti4 Jt{:,'.:'.N,;%'.1 t .3'�' h'Ci �' t:7F 7 ;:�
�
• '�J/..i.;... ..�.. � .�:71�:_ar �, . - :..;,.., .,�.:,�.�. . ..�:::.. ,-... y ... . - 4�.'vi5;. k � x � v ITi 4
_. , _ ... �i. �°R^' ,
p� • ' . . . ..;i.�,tY"�N;,. �'f ��� �,4-,7'�� "�(�
4 i��.
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� r"�
�'. . . , _ / ;•�'.-t,r
�'.
'�N'
f�'� ''��i\..
�p�
Can t i nued ��i tij'IY'
4 � ,
� to tha south ci�ht m4 w�►y ot 3.in+r ot u.8. Ui h�►a� lfo�. $t tb�r1pa� ���,��;��
o� �s� ae�g�e to �h� righr o! ].00 d�grf+�� �l•��" a�� �1��; �c�i��' . �� 3°���,
�a�tl� rt�jl�t a! May liact� t78.09� i��t td kf�w 'Nor��t�r�� �t�f�r -:�i� ��
s; •ai� Lot 1► �nd to t�• �rn� poin� af bfgfn�ing. tli��f�� ' �` ,
r w �a`�„�'�� '�� �'+��
;. �o t�� 1�!'t a# 10� d�gr�ss 41 �7 and •lonq kh� Nr�t 1,�'� ��s� f�l ��I: ,,,� > ;
fi:, xaC A, b5.�s ���t= th�nce ar ur� sx:ql• to thi 1*tt vf 9 ;� ,� ` ,�
+� O�t Q 4 1 0. 5.0 0 l���� t h�nc• 'on an +sng l• to t tie 1�t t o� ��r�� ,� "� ��;f
�� B9'31", 6S.a6 f��r� tn th�r Netth xin�r o� ��id Lot At t '�r�����ctl�"� �'.
� . anq��r �a bt►� 1�tt a� l,OS d�r��e� a8��2" �nd alang •;!� ��I��t� `'l`��: �o�i
x a�' 3�.Oa ff�� ta th� trua� poink o! bMgieaiug� ''x;
, . ` ���'`
s���
y'.. �1�0� . ��p��
k. a P`R]'�ns
� �CliR+l'H!]t n3�N an 6a���,�ra� fnr 7Ca r��s a�d ags�ss to s►�d �ca#� ,, �: �^ `,�'y.`
��
au�b��a�� psop�rty �lesazi��d �s �0 3.ow�a k,: t����
�; ,- ; �,� t� .
x�' r w�i � v �
1� tr#an�l�� �as�ra�nt �t �hs ��eathMa►st carn�r a�! a park �� ��t �► -� ,>t�� ��' �
�. ot �w�rneled lita at �heft 1 af 2 0� v�il Vl.11aq• �i11nq �fa. �.r�� �`w"��"�� ' F���'{
� C o u n tp o� l�g��. s ta l:e ra t Co l�ra�o, sr,x�• p�r t iaula�`�y ��i,a����i�r������' �..
�' k5
s�: �� �OZI.OKS! �' H� t� r.
#t��
is5: � .F �; i 3 �-�_• r���.
�; Corn��neiaq at th� North�r�s�t CGCtiRC n� saiQ l��rctic�n 7. r����'� �' `J` `�X
�,. l�ovtb, 1Ra�g• SO M�►�t ot tlaM 8isth Principal tR�cidia�nj ��h� 'YC� '�"�r^
�h
� P�outf�srly and Alanq ��re 1�a�t lirae ai sa1cl S�cti�on `�; �9:��f� ��r�'t �. ��, ' .
�a the sauth riqht cf aay line of IU.S. BiqbM�y l�o. 6y �aa�r <,n fia
�n Anq].s �o th� right at' 100 d�rgc�ars 1�1°�7' �atd alo�'� � �� Sau t� -�`;; �
riqht ox rap l�n• 178.�9 fa�t Ca `:�� NasthM+r�t Gorn'i� 9!� ,��q�.�il �.o:� ��,��
1k� th�r�a• an an an 1r tr� the 1.�lt at' I00 d� r�r�a �#:'"47" ��►i�::.aaan ` u ��'
9 g 91 �,,,.,
�h� N�st line o! sa9,dl Lat �, 95.00 �s�t to th�e tcue �r+�i��" o"`f �;4 �
b�qinninq� th�nc� an a r�erver �re trie l�fi�, havin$ e� ra��:ua� �x!
15.00 i��t. s csntral anqle ot 70 degrfes t8'4S , •n �YC l�n �th ��'�
a�g 18008 L���t to a paint Q� ��ngant= th�ac� aloag s�fd taagi���, ;�';?� .
5�.05 ���tis tl�r�nai on a�Y axaq�.e �o the riqht a� 17b dMqr��s ��>
25'33". 67.aQ lsat �� t�he �t��1:. �.ine a� Aaid Lot A� �h+�ac� an +�n �����
angl� ta th�r r:iqh� r�� 7'3 dc�F��c*�u 53•l2" a�nd slanq said N�s�. �.ir��r � ��,�;,r .
15.0� f�art, mort c�x la�a, t:� Che tirx�er pain� ot btcyinning. `;�; �
.�,
Coun�y ot zagl�e, _,°�
8tate n� Cv�or�d�. �>!��;.
.�,x��;u
3. C�'1NVEYANClS O!' Tl�t$ 1lA��!!!l6H7°1R 1 �'lxR�l
�;',?�,
2.2 Tha perties ta this ugc�emen� rl�aire ta creste e��emwn�� ,:�.,
with rea sct to th� �bove-deac;ri.be�J �����i.n9.nq lnt-4 nwtto�i I��r hh�+m !�`.r
R .,,:,
p01" C�tf Dl1ll��,t O� e[IC11 b� l`h�m. -,;�;`
i;':i
'�r*,..i.
2.3 Holiday Hou�e Condnmi.ni.uru Astt:�ciation �+nd aAH "�
:;,,,.
:tnvet��mentS, Inc. d/b/a� ChAteau Vai.l Hr.liddy In'n here}�y yc�nt� �n�.t ';;;,,;
c�c�t�vey ta •nd £ro�+ as�er �no�t��r► for a p�r�ui3 0� an� � ' ) y��r �ran� ;�r�
t.h.• de�a o� th�,a c�r.vey�na�, e�e����n�nk,� inr cnmmercit. �nd "`��
:,...�.
resl.dentin], use r►� a�atlin�d h�r�a.nbelow. ��'"`
�A.c►�1�iEIN"'."'r
4►�r �.�_ !
�; 571r�< N-Svi F'-4!;4 Jt�,.'4�t3;�'•'t � _ .:r•� PC; .3 c7r �
�r�'llrwr�lr ,,;,
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:�<+��..u, ro��
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}" ' f'�`�a�f��,� � ,` �
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� h: :r !�e'� � � ''1��jj1;,� .
!��:. f 5�'� i.
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r,q,ry� �l�. � r'�i�
4.Y� � '�F 4 ��P�pYS�t�r
� 2.4 �t 1s agrrsd �Aa�t a� th� •xpi,ration o! +�h� oa�r •�►���: tr'�� � '! ��p
�� � ot this �gr�aN�rat, �h� parti�s m�ey contr�►at ta a�►r.*� ko c�riMw` �'�� . . E'`zS
�,: •�swe�nl� qrant�d h�r�in, by a� sdditianal a�q��tie�at r�q�t�r�a�q '�� ,��t s".,,
� cori��nt �ad conaid�ration th:c�toc. � ,rv ,��.
F,
� �' <�a��.
x.8 Thi� r�utual qsAnt ai ea��mrn��r �ha�l], run with tk�� �.�►r��d ` ,e< �;;
�nd sh�ll b� bindi�g upon and aha12 inur• to th� btn�tf.�° 08� � rf ; �� s���
p�rti�� h�r�to, th�ir ruccsssars, a� a��slgns, duriz�g t�h� tRC�������,�t; �,4�.,
Cpd�i Og�RfMf1Y�. ,{y ,��.a�Y�.
F' I �•
'. � :.Y I i�� )
�; 3. GbN3xDL'AtJ►TICN ;„
� 3.2. �lolid�y �louse Candominium �►ssaciat3on sqx+r�s tb � F� , ', , �,r�U,�
,;: InvQSts�nt�r, Inc. d/�/a Cha�tsau Vail Nolidsy It�n th� i��b ,�_ �'" �a ': �i'h�,: +..
3 �a11ar ($1.09) , the rlc�ipt o� ahfch i� acknt��ri�s�4�a, ��}�1� ,�,;: ,,�.•.
': �ao� a»d va2uabl• can�3d�rKtian, incluQi�aq th� �au��ip�3. �''�������i , }���U_
ti •ne! d���ia��nta c� •ach af th� parti�� Cant�Sn�d h#t��in. ` ; � t �{�� �
r�, ,t��,�� '�P �'.s�
a,.. - ,, � . w���,:�y!F Fs f i.
t` �i a +,�: ����;.
3.2 dAl� xriv�rt�sents, Znc. d/b/+� Chat��u Va�l Nali�� ; �T ��
�` a�r��s ta p� �olid�y Hou�e Cnadominium wssoci�tion't�i �'������ `, ";;��� .
�; Oa� Da�ler t�1.d0� , th• ric�ipt o� which i,� �akgowl����"y� ,��}�` ` ,�`
�{� at��r o�►d and valexabla� can�id�cation, includin th� ;� � _" T", f �'�
s: b�n�ti�■ and datrim�nts o! �ach o�! th� parti�s c�anC�infdt�h '��r�n. , ��:,�°
,,,. ''� `::S��° _� y�`���. .
�. dU1'1�1I�� O! THE �ZIII�111Tli i V86 AIQD 6NJOYl1�l�iT r �'r,��, .
' f t`, 1
�' �.1 DAD 2NV����IEN�'8 INC. d � CH�T�J►t7 VJIIL BQ�I�1�'* "8, ,;.(`
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�, E118�lYENT '
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Y"nv s �en a,'_T�3�: m u seu x� �; . �►y . .nn �''��r,�i���1� �� �,�
�� g � � ��: ��,.
�. 6as�retnt far in x�ns: snd !E rrss to a�nd �roa� rub •ct p'� ;C�y� r��
" awn�d b Hnlida ,Hausa Candomi.niurd As�aaintion. Suah ���t���rAS�nt �'`�
�� con�ists at theyziqht ta uae the aaphalt d�±vew�y l�radin� t� �►t��': • k`�ri�
�;: irom �h�t �rash r�ceptec2e �'dr drive�ra►y puxpores. Fu�thss, •u�h ,�,.:_'
�eas�maa� is to run aves aad �CCtl�t� th� proparty owned by Ital3dag ��•
`` ltaare Condo�ainium Aasociatinn, more particularly describ�d ss ti�ie r�":"
�x� •sph�lt drfv�w�y �.ocacted on the Southwe�t carn�er a�nd part of i.o� :;�?x
i': s und on th• Bouth�as� corrier a�rad pt�rt af Lot C, and ahi�h ` ��
'� ��a�a�a�� Woa't Ma�dow Drive. �'��''
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�� 4.� "ririvswsy pur asea" �ee used ir+ thi� aqsss�nfnt m�ans u,��r ��'
� oi a�ayn+�rciel �nd rfa�dentiAl driy�way�. xt ts aqr�rdE thett a�ny �`�h:�.
v�hialer �hall u�� ox �rav�rl. acros� the r.ighks a� way ��sarfbad ���-�
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her:int and t2�rre ehall. bee no rm�trictiana ss to v�hicle, axctpt �,�
'� as s�t �orth in the rer�ardec� beclaration o� the i3ali�uy tTbaaa "'-°
}; Cor�deminium Aeeoci+ntion a�nc1 its �y-law�. �t fF aqreec� thrp l.l�e ;`�+�'�
dtiv'�►w�y �h�ll ►tot b�t uit�d Lut �tckirt�� vetii�.:les Uut c�nly IL�Y '•'k��:
dxivew�y purpns��.
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� 4.3 Yt �� �xgread th�tt v�:h�.cl,es cr�rryi�g tragh to and ;fr�m k;h� `';,;,
1 t�aEh csc�ptr�clt m�y ue�� o� �c�v�l, oc��nos th�a _lqht o� wsy ;;�.
ds�erlbed aba�v• or�1y dwring th� h�ure� at� 7 a 40 A�M, and B i bA p.i�,
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4.� HOLIDIIX I1�Va6 CClNtiOMYNIUM A890CI11T:ION'8 ltA861�18N. ...T0 >IJ$� , �r��
" �� a �'X � .O��a 9Tf ID1a; ��{'� �x ,,��;
�: �1t2VL'0�l►Y�7��1�""�:� , '
r sr'oc .`a an a q�rsn � an +�`sa��.nE""!or Yriq�+��l� an� �#� �� �c ��n�J� � �a��,`,I.
iror� sub •ct p:apsrty own�d by �AS xnv�e,�tmi���, inc,; ��/� � {,� �
� . Chataau ��►il llalieliy ir�n. 8uch lt�s�m�nt �e��ti�ts Of �� ,��ighr tro , r�, �s ;
�� usa th� �sph�lt paekinq lat driv�rva�►� l��dir��j }t�b;�:a�S� b���a tl��► : �,��: �� ��„ps
p�►rking lot �or dr��►RM�y pucposee. l�urth�tr, r�i�i�h �a�� �t ��r �t� �� ;. .���`��;
�' rur� ovsr and acros� th• pcopertp awr��rd ky ri�►B invasti-A` �il;, gar�.n Y;��r,. y 'k���
d/t�/� Chat��u v�fl na7.id��y �an. mor• p�rtianlarly $'�, ' ' , �rF� � ,6 �
�: th� •s�h*lk dciv�way locatad nn th� Scsuthw�a� c!�r��v�'', � ,��=��?� , � �y3''�;'�,
��,= Lat 1►, av�r and scKOr� the •a,�t ra�►d intn th! 1i!���?��� �`��� a ,�;J f�� � �,�
�,�. w 1 a , ,i � _,� �L��x
r� ncrth sid� ot tlna arkin •rw�, whie�a �cc�r��i� tih� Ch�►"���!�! �x�► �4 �, �' {� ,
P 9 �
;5 Hall.day inn parki�ng lot. � > a, ��tr�-�'�������')�l�
yyq Y 3 lii
� � }��L �''f�#��rJ R� Q
�`�� 4.g r� i,s aqr�sd th�►t vohicl�s �rkin #n th� ����Ci��t �� ' ��' ��
d• £� . �, , ;c��F �5��;:, t�`�`�
' •hal� b� •ntitled Co •cr��• th� p�r�i.nq loti, i�cl.udim �p ° �' ,° ��f,;� �,
�= aad •qr�r�, by u�• at �nd tirkvyl �►aroa�t th� parkinq .1���+;:. . , ����,,� v,
�' i�u r t h�r, i t i� a r�a d tt�ak Ndlicta �aue• Cando�ainiui� :. �'i
9 x ��. 'x .
1 � i. �r; + �1�;ka.��,�
•h�ll usf and tirav�l acro�r ths par�ciag lot �o acci�r� � �,� � 'l�; �F��..
��� (4) parkiag ag�a�s, locat�d nn pcoprrty awn�d by lto�� ����� ��M'' ;� �,��°}
'� Candoa�iniun 1►srvciatian. `
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!' +f�r O!.bM tiOL2DAY HQU316 CONDClFlIl1�IUM �88fiCIJITZON'8 1CJl'3Eli N�'�tI�"� �`U8�l� �' ;;,"
�• �i^9�ACY ' . . � . . . � • � �, yFj t F�S�t E '���t y
� . . ..� . � . _ . . y u�4 fnY �8 � K�/F'f ` ���rtj�,'�
on am n u '�rt�toc a �n s gr.u:t '� an as�r`e��nt �'ar �l'i��►Q��,� c� �����,� , '<,�''
' �nd �►bov• eub�act prop�rty owned by DAB Inv�stretnta. I�nc :'�c�/�,i'���.+ad ,r`��
�: Ch+�toau Vail Aalic�xy Ian. Such Eassm�nt consists af l.h�r:"riy�ti'�,' �.
, . .:I. f�'::�� ��'r .
T' us• the sirspace over e�nd c�bove rsal �sap�r�cX arR�n.fd by 1�►8 ;�;�
Tavf�tm�ntN, ina. d/b/a Gha�e�u vail �oliday ir�a, moi�-�R. ',�±' ,�a
p�rticula�l d�sczibed a� th� af,xspac� undsr and o��u�ii�d by tha , '�,
y ��
dsek aad balGOn ot unir #li a� Ho1id�y Nc�uss Candaa►ihin� �;�'
Associat�on as �t overhar►r�s � rantral g�art n# Lot e, und t�e '
:����;�,
gtonnds of Chak�au Va.il Ho�idxy znn aw+nsd by DA8 2nvs�tm�ea�s, <,,;,�
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: 5. BSr�bNbi1l9 b[" !'iAIl�T1sN1�,lIC� 1![�Cl ltll�l►A1R �i�`�:
� ��'�`$
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5.1 zn th� sv�n� a par�y c+�uaes dmma�ge tn drivswa�� or park�n� �,�
1at k�y use ae travel. a!:rauffi such right a� way. that par�t�* sha17. �:�
b�r�r ths r��ponaibflit� toc� rep�ir �x�d ea�i»ter�an�ce cnus�sd es � ai'.
dir�ct x�su2t v� said damt►c�e. �;�'x;;
t.,�
I: �
� 5.2 'rYis re�pe�ir� �r�d maintena.r,c;� ka be undertt�k�n a►nci
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performed under thi�s �gr.er�ment ghr�Il. inc]udP the fr..11on�9nq: ;.�r�,�
� �illiny chuckkiales, re�uc�x�cing �vith as�.�h�1t , ieE,�i�:in;t r�s��h��lt �,�`;
j �ur�r�ces, and repdicing cur.bing. '`��
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5.3 The ce�aic� und a��inkeyYaryc� c,f the driveway foc �+�C�-'S5 t�� . ''`'�+.
bh� pA�klraq I,Qt �c�d tha p�rktnq lat ��.se1E sh�?,1 remain tne .
r�apon�ibilie� nt DA� tav��t��nt�F �nc. d/b/e Ch�te�� Ve�i'
�3�lf,day inn. ,,;:;
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' th� �rs�sh r+rc��ptac�� a�all b� �h� eis,por�aib�lity oi n111� ; � `�����<<
� iriv���!:��nt�. i�nc. d/b/a �hat�+�u �'a!1 ltoXid�y inn. ' t'k���`�:�5,
a. ����laiMlJ1lIOlt� "���u'�,t;_St
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d;' �.1 Th� pasti�r� �e�pr���nt to o:�a sna#.�:�r that �ach has th� ,��
+�ukhpsity and powAr t� �rant th� •as��eonle� d�scrib�d h�re�i���,t� d�` � ,`"; ;
�' tur�h�r, r�p��#e�t thst th• u •nts �i nir► h�c�ir►b+►lav o�i; • � ,',� �
' o!' k�f p�rti�s ar� M�r rMS�I �ukhax�.a�d ta bind tl�� �`�r��� ""�`"�k� �k �rk � � �;��Nx
�` �uch sn aqr����nt. � � � "`���� �s#,�; "� ����z���� .
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5 �hall b� �n�it�ad �a �tt�rrfl�y�'r ��raa xnd co�t� ia�urirwd i�;�►ri�=$�+�,'� cr�,
i �atiaa or coc��din t!►at aa b� brou h� �ri�in nut ci�, i `��' � ; �.��ti"� '``
h g 4 �' � 9 r �, , � ���w�.��: �
cona�ction with� or by r�aaon ot �his rqz���+�nt.
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fluc�ust 8, 1972
Mr . Bruee Reed
Pinkard CanstructiQn �omPanY
P . 0 . E3cax 26227
D�nver, Golorado 80226
Sub,ject: Notid�y t�o�se Variance Application
Dear Sruc�:
W� have decided that 51nco your proJ��#ion in-�o the
requir�d setbaek is so minor, �� � 111 not r�quire that
you �o -throu�h i�he vari ancn proceedure .
The �e�'b��k as shown is approweci and will not requtre
a v�rtan�e .
If ycau had� anq questions, plea�e feei free fio eall .
Yours 1-ru 1 y,
TO�tN �F VA I L
Kent R. Ro�e, P.� .
7own Enc�i ne�r
dw
..�LM
. . � . y . ��r�d:/'! "� C1 /�Q.4
6 - •
, � D�S IGN REV I1;tiV BO�Rll
�� 1
T�A'1'E OF DII;F�TI1�G � �( �J �� 'r �
b1L111BERS PRESEIIT:�� �, �' '� ,�. '� I ,
_1���Cd.�" ��/�./�r, -
/�r {� .��lt-�: ���_ . .
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SUBJ�CT: � � ,!��t�
ACTION TAKEN BY On�.D:
I�40T ION: ' � SECONDED BY �3� �,.�1t�.,.
VOTE:. I'OR: AGAINST _ �
APPP0I�ED: (,�/�(��'J/I�Y)GI,�-�
DISliPPROVI.D:
1
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CIi� �' � OI' '1'11I� . � A�PLI C�.NT
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DRAFT
A RESOLUTION
DECLARING IT TO BE IN THE PUBLIC INTEREST THAT AN URBAN RENEWAL
AUTHORITY BE CREATED AND DESIGNATING THE TOWN COUNCIL OF THE
TOWN OF VAIL AS THE GOVERNING BODY OF THE URBAN RENEWAL
AUTHORITY.
WHEREAS, the Town of Vail has adopted the Lionshead Master
Plan detailing improvements needed in the Lionshead area to
properly guide redevelopment of the Lionshead Area; and
WHEREAS, URS Corporation, pursuant to the a contract with
the Town of Vail, has prepared the Lionshead Reinvestment Study,
dated December, 2002; and
WHEREAS, the Lionshead Reinvestment Study describes certain
deficiencies in public infrastructure and development that
constitute blight as defined in Section 31-25-103 (2) of the
Urban Renewal Act; and
WHEREAS, it would enhance and facilitate the redevelopment
of the Lionshead area if public infrastructure could be enhanced
and redeveloped using the financial mechanisms authorized by the
Urban Renewal Act; and
WHEREAS, the creation of an urban renewal authority for the
Town of Vail would assist in the redevelopment of public
infrastructure.
NOW, THEREFORE, BE IT RESOLVED by the Town Council of the
Town of Vail, that:
1. There exist in the Town of Vail at least one blighted
area and that the development or redevelopment of that area is
necessary in the interest of the public health, safety, morals,
or welfare of the residents of the Town of Vail.
2. It is in the public interest that the [Vail
Development Authority] be created and be authorized to exercise
those powers provided in the Urban Renewal Law.
3 . Pursuant to C.R.S. Section 31-25-115, the Town Council
of the Town of Vail shall serve as the governing body for the
[Vail Development Authority] . The members of the Town Council
shall serve in that capacity on the [Vail Development Authority]
MUR\57037\441917.01
during the term of their office as a member of the Town Council
and shall automatically cease to be a member of the [Vail
Development Authority] when, for any reason whatsoever, they
cease to be a member of the Town Council.
INTRODUCED, READ AND ADOPTED by a vote of for and
against at a regular meeting of the Town Council on ,
2003 .
2
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MEMORANDUM
TO TOWN COUNCIL
FROM DEPARTMENT OF COMMUNITY DEVELOPMENT
�JIM RUBIN, ZONING ADMINISTRATOR
DATE 4 DECEMBER 1978 .
REF HOLIDAY INN OF VAIL, APPEAL OF THE ZONING
ADMINISTRATOR'S DECISION REGARDING THE
PROPOSED LEASE OF PARKING SPACES TO
TRANS RENT-A-CAR.
On November 29 , 1978, I received an application to
lease private parking from the Holiday Inn of Vail. The request
was to lease ten (10) parking spaces to Trans Rent-A-Car, a
rental car company from Denver, Colorado.
• I denied this application because Section 18.52.170
"Leasing of Parking Spaces" Subsection (b) (8) , prohibits the
leasing of these spaces for a Commercial Use. The Town Attorney
was in agreement with the interpretation.
In further research on this matter , I found that
the ten (1Q) parking spaces requested by the Holiday Inn were
based on the 1976-77 ski season. Using the parking statistics
for the 1977-78 ski season , the Holiday Inn and the Holiday
House would only receive 3 spaces.
The Holiday Inn has revised their request from 10
to 6 parking spaces , and still desire to lease them to Trans
Rent-A-Car. They claim there will be more vacant spaces this
winter due to better patrolling of the Holiday Inn lots.
In conclusion, I recommend this application be
denied. I do not believe that the intent or the specific wording
of the Lease Parking Ordinance is to permit the leasing of
parking spaces for a Commercial Use. Furthermore, based on the
use of the Holiday Inn parking lot last winter, I do not feel
they have sufficient parking for their visitors .
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box 10o department of community development
vaii, colorado 81657
(303) 476-5613 13 December 1978
Pdr. Tom McAdams
Vai1 Holiday Inn .
Box 35
Vail, Colorado 81657 �
Re: Parking Requirement for the Vail
Holiday Inn
. �
Dear Tom:
In calculating the �parking requirement for the Vail
Holiday Inn , I have determined there is an excess of nine (9)
spaces for the Holiday Inn and Holiday House. The reason
for this excess is the fact there were more stringent parking
requirements when the Holiday Inn and Ho7.iday House were
built than presently exist .
The parking requiremenl: for the two buildings , based
ori the 120 lodge rooms, 27 condominium units, restaurant
and meeting rooms, is presently 138 spaces . The curr2nt
capacity of the pa.rking lots is 147 spaces which leaves the
excess of 9 spaces.
I, therefore, give you permission to rent or �ease nine (9)
spaces to Trans Rent-A-Car, but with the unclerstar�ding that no
cars will be permitted to park along West Meadow Drive.
. �
If you have any further questions please contact me.
Sincerely,
� I�„`-�s'--�
James A. Rubin �
Zoning Administrator
JAR/gew