HomeMy WebLinkAbout2009-13 Approving the Skier Drop-off Easement with Vail Associates Inc.RESOLUTION NO. 13ഀ
Series of 2009ഀ
A RESOLUTION APPROVING THE SKIER DROP-OFF EASEMENT AGREEMENT BETWEENഀ
THE TOWN OF VAIL, COLORADO AND THE VAIL CORPORATION d/b/a VAILഀ
ASSOCIATES, INC.; AND SETTING FORTH DETAILS IN REGARD THERETO.ഀ
WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Coloradoഀ
is a home rule municipal corporation duly organized and existing under the laws of the State ofഀ
Colorado and the Town Charter (the "Charter"); andഀ
WHEREAS, the members of the Town Council of the Town (the "Council") have beenഀ
duly elected and qualified; andഀ
WHEREAS, Vail Associates, Inc. ("VAI") is the owner of certain real property in the Townഀ
of Vail commonly known as the "North Day Lot"; andഀ
WHEREAS, the Town has given requisite development plan approvals for developing theഀ
North Day Lot as a multi-family employee housing residential project, together with other relatedഀ
improvements. The approved development plans provide for the construction and relocation of aഀ
nine (9) space skier drop-off area; andഀ
WHEREAS, the Town and VAI wish to enter into this Skier Drop-Off Easementഀ
Agreement in furtherance of implementing the use of the skier drop-off area for its intendedഀ
purposes and of integrating such use with the future North Day Lot development.ഀ
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OFഀ
VAIL, COLORADO THAT:ഀ
Section 1. The Council hereby approves and authorizes the Town Manager to enter into theഀ
Skier Drop-Off Easement Agreement with VAI in substantially the same form as attached heretoഀ
as Exhibit A and in a form approved by the Town Attorney.ഀ
Section 2. This Resolution shall take effect immediately upon its passage.ഀ
INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council ofഀ
the Town of Vail held this 5t' day of May, 2009. 401ഀ
Richard Clevelanഀ
Town Mayorഀ
A ESഀ
onaldso SOWNഀ
fAwnGlerkഀ
Resolution No. 13, Series 2009ഀ
SKIER DROP-OFF EASEMENT AGREEMENTഀ
THIS SKIER DROP-OFF EASEMENT AGREEMENT (this "Agreement") is made byഀ
and between THE VAIL CORPORATION d/b/a VAIL ASSOCIATES, INC., a Coloradoഀ
corporation ("VAI"), whose street address is 390 Interlocken Crescent, Suite 1000, Broomfield,ഀ
Colorado 80021, and the TOWN OF VAIL, a municipal corporation duly organized and existingഀ
under and by virtue of the laws of the State of Colorado (the "Town"), whose street address isഀ
75 South Frontage Road, Vail, Colorado 81657.ഀ
A. The Town and VAI, along with the Vail Reinvestment Authority, are parties toഀ
that certain Core Site Development Agreement dated November 8, 2004, and recorded in the realഀ
property records for Eagle County, Colorado (the "Records"), on November 21, 2005, atഀ
Reception No. 937604 (the "Original Development Agreement"), as modified by an Amendmentഀ
to Core Site Development Agreement dated July 19, 2005 (the "First Amendment"), madeഀ
among the same parties, and recorded in the Records on November 21, 2005, at Receptionഀ
No. 937605, and as further modified by that certain Second Amendment to Core Siteഀ
Development Agreement dated as of December 21, 2007 (the "Second Amendment") (as soഀ
amended, the "Development Agreement").ഀ
B. Initially capitalized terms used but not defined in or by other reference under thisഀ
Agreement shall have the meanings ascribed to them under the terms of the Developmentഀ
Agreement. The Core Site Project is referred to in this Agreement as the "Arrabelle Project."ഀ
C. VAI is the owner of certain real property in Vail, Colorado, adjacent to theഀ
Arrabelle Project, which is commonly known as the "North Day Lot," and which is legallyഀ
described on the attached Exhibit A ("North Day Lot"). VAI has completed the initialഀ
construction of the Skier Drop-Off Area in accordance with the Second Amendment, whichഀ
Skier Drop-Off Area contains 9 parking spaces and is now in operational, functioning condition.ഀ
Development of the balance of the North Day Lot has not yet commenced.ഀ
D. The Town has given requisite development plan approvals for developing theഀ
North Day Lot as a multi-family residential project with employee housing units, together withഀ
site and other ancillary or related improvements. Such approvals were rendered by the Town'sഀ
Planning and Environmental Commission on February 9, 2009 (with modified conditionsഀ
adopted by Town Council on March 3, 2009), and by the Town's Design Review Board onഀ
February 18, 2009. Such approved development plans, together with any modifications orഀ
supplements thereto given requisite Town approvals, are sometimes referred to hereinafter as theഀ
"Approved Development Plans," and the improvements developed from time to time on theഀ
North Day Lot are sometimes referred to hereinafter as the "North Day Project." The Approvedഀ
Development Plans provide for a relocation of the Skier Drop-Off Area.ഀ
E. The Town and VAI have entered into this Agreement in furtherance ofഀ
implementing the use of the Skier Drop-Off Area for its intended purposes, and of integratingഀ
such use with the future North Day Lot development.ഀ
.NOW, THEREFORE, in consideration of the above premises, and other good andഀ
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Townഀ
and VAI hereby agree as follows:ഀ
1. Grant of Easement.ഀ
(a) Skier Dron-Off Easement. Subject to the terms and limitations set forthഀ
hereinafter in this Agreement, VAI hereby grants the Town an easement over, across,ഀ
upon and through the Servient Estate (defined below) (the "Easement") for the followingഀ
purposes: (i) to use the Skier Drop-Off Area for the "Drop-Off Use" (defined below);ഀ
(ii) for passenger vehicles engaged in the Drop-Off Use to employ the vehicular accessഀ
ways within the North Day Lot as necessary for purposes of ingress and egress to andഀ
from the Skier Drop-Off Area; (iii) for Recreational Users (defined below) engaged in theഀ
Drop-Off Use to employ the pedestrian walkways within the North Day Lot as necessaryഀ
for purposes of pedestrian ingress and egress between the Skier Drop-Off Area and theഀ
easterly boundary of the North Day Lot; and (iv) for certain maintenance functions as setഀ
forth in paragraph 6 below. Those vehicular access ways are sometimes referred toഀ
hereinafter as the "Vehicular Ways," and those pedestrian walkways are sometimesഀ
referred to hereinafter as the "Pedestrian Ways." The "Servient Estate," as that term isഀ
used herein, shall mean the Skier Drop-Off Area, Vehicular Ways, and Pedestrian Ways,ഀ
which are initially established by their present existing configuration depicted onഀ
Exhibit B attached hereto. The Servient Estate will be subject to adjustment asഀ
hereinafter set forth.ഀ
(b) Dron-Off Use. The "Drop-Off Use" shall mean the short-term loading andഀ
unloading of Vail Mountain skiers, snowboarders and users of other Vail Mountainഀ
recreational resources ("Recreational Users") by private passenger vehicles during -theഀ
Vail Mountain ski season (i.e., the season annually during which skiing/snowboardingഀ
and related ski lift transport are offered to the public as a commercial operation) for theഀ
periods when the ski lift is in operation (the "Reserved Hours") (i. e. generally betweenഀ
the hours of 7:00 AM to 7:00 PM). As part of the North Day Project, VAI will causeഀ
signage to be posted in the Skier Drop-Off Area disclosing the Reserved Hours for theഀ
Drop-Off Use, in compliance with the applicable provisions of the Vail Town Code.ഀ
(c) No Use Durine Construction. The Drop-Off Use may not be used and theഀ
Easement and its enjoyment will be suspended commencing on April 1, 2010 andഀ
continuing until the first day of the 2011-2012 Vail Mountain ski season.ഀ
(d) Sub-surface and Air Rights. The Servient Estate and the enjoyment of theഀ
Easement shall be limited to the surface of the areas comprising the Servient Estate fromഀ
time to time, and VAI reserves and shall have all rights, on an exclusive basis, to develop,ഀ
improve, occupy, use and enjoy (i) all subterranean areas underlying or proximate to theഀ
Servient Estate (provided that the Servient Estate will not be deprived of the subjacentഀ
and lateral support necessary for the ordinary use and enjoyment of the Easement), andഀ
(ii) all air space overlying the Servient Estate that is above the height necessary toഀ
accommodate the Easement use (and any above-surface improvements given the requisiteഀ
governmental approvals of the Town shall be deemed to fall within this clause (ii)). Inഀ
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connection with VAI's exercise of rights under this paragraph I (d), after theഀ
commencement of the 2011-2012 Vail Mountain ski season (while skiing/snowboardingഀ
and related lift transportation is offered to the public), except as may be necessary forഀ
short term maintenance or other bona fide purposes, the Drop-Off Use shall not beഀ
suspended by VAI during the Vail Mountain ski-season. After the commencement of theഀ
2011-2012 Vail Mountain ski season and before undertaking any developments orഀ
improvements to the Servient Estate during the Vail Mountain ski-season pursuant to thisഀ
paragraph I (d) that would suspend the Drop-Off Use, VAI will provide the Town with atഀ
least ten (10) days prior written notice and VAI will obtain any permits required to beഀ
obtained under the Vail Town Code for the applicable work. Notwithstanding anythingഀ
in this Agreement to the contrary, if any need arises for repairs or replacements to theഀ
Servient Estate that presents an imminent safety risk and emergency because of aഀ
dangerous condition, then VAI may suspend the Drop-Off Use and complete theഀ
pertinent repairs without providing ten (10) days prior written notice to the Town;ഀ
provided, however, VAI agrees to provide written notice to the Town of the suspensionഀ
of the Drop-Off Use as soon as reasonably practicable.ഀ
2. Non-Exclusive Use. The Easement shall be non-exclusive, and VAI, for itselfഀ
and its successors in interest in and to the North Day Lot, expressly reserves the right to the useഀ
and enjoyment of the Servient Estate for any and all purposes that are not materially inconsistentഀ
with the use and enjoyment of the Easement by members of the public for the Drop-Off Use.ഀ
Development.ഀ
(a) Relocation of Skier Drop-Off Area. In connection with any developmentഀ
of the North Day Project, the Servient Estate or portions thereof may be relocated by VAIഀ
consistently with the Approved Development Plans (the relocated Servient Estate beingഀ
generally depicted on Exhibit C attached hereto). The Servient Estate as relocated willഀ
continue to incorporate and serve nine (9) parking spaces for the Drop-Off Use. Theഀ
Servient Estate shall be deemed re-defined by any such relocation when the applicableഀ
work is completed and shall be memorialized in accordance with paragraph 5 below.ഀ
(b) Town Pronertv Access Wav. The Town is to grant to VAI, pursuant to aഀ
separate agreement, an easement to construct, maintain, replace and repair an access wayഀ
within the Town Property (defined below), and to operate, use and enjoy that access wayഀ
for vehicular and pedestrian ingress and egress (the "Town Property Access Way"). Theഀ
parties mutually acknowledge and agree that the Town Property Access Way shall beഀ
subject to use for vehicular access for purposes of serving the enjoyment of the Drop-Offഀ
Use within the Skier Drop-Off Area. The "Town Property" shall mean the site owned byഀ
the Town that is contiguous to the North Day Lot and is legally described and depicted onഀ
Exhibit D hereto.ഀ
4. Frontage Road Access.ഀ
(a) Town Work Easement. VAI hereby further grants the Town an easementഀ
over the applicable portions of the North Day Lot (the "Town Work Easement") toഀ
construct, as a Vehicular Way within the Servient Estate and for use as part of theഀ
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Easement, a snow-melted vehicular drive that is accessed from Frontage Road and that isഀ
generally located within the North Day Lot and the Town Property as depicted onഀ
Exhibit E attached hereto (the "Frontage Road Access"). If and when the Frontage Roadഀ
Access is initially constructed and completed, the Town Work Easement will terminateഀ
and be of no further force or effect.ഀ
(b) Configuration of Access. The configuration of and improvementഀ
specifications for the Frontage Road Access must be compatible with the finalഀ
configuration of the Skier Drop-Off Area and the other elements of the North Day Projectഀ
as determined by VAI in its ordinary business judgment. The plans and specifications forഀ
the Frontage Road Access and all site modifications and improvements pertaining orഀ
incidental thereto (the "Frontage Road Access Plans") shall be subject to the reasonableഀ
approval of VAI in writing, prior to the commencement of the Frontage Road Workഀ
(defined below). The Town will be permitted and required to connect the snow-meltഀ
system within the Frontage Road Access to the boiler or other heat source for the snow-ഀ
melt systems within the North-Day Project (the "North Day Snow-Melt Source") inഀ
accordance with VAI's specifications.ഀ
(c) Frontage Road Work. The Town shall cause the construction andഀ
installation work for the Frontage Road Access (the "Frontage Road Work") to beഀ
undertaken and completed in compliance with the final approved Frontage Road Accessഀ
Plans, in a good and workmanlike manner, and in accordance with good standards andഀ
practices generally prevailing in the construction industry. The Frontage Road Work willഀ
include, as applicable, restorations, replacements and/or reconfigurations of any Northഀ
Day Lot improvements affected by the Frontage Road Access. The Town agrees that theഀ
construction of the Frontage Road Access shall not prevent access to the North Dayഀ
Project or unreasonably interfere with any construction or development on or use orഀ
enjoyment of the North Day Lot or cause any damage on the North Day Lot (including,ഀ
without limitation, any impairment of subjacent or lateral support). Prior to theഀ
commencement of any Frontage Road Work: (i) the Town and VAI will agree upon theഀ
construction schedule (including construction hours and times) and the location, physicalഀ
scope and required safety measures for the Frontage Road Work during the constructionഀ
process; and (ii) the Town shall furnish to VAI. copies of all requisite permits andഀ
approvals from CDOT authorizing the related curb cut and other access improvementsഀ
and permitting ingress and egress to and from Frontage Road. Upon the completion ofഀ
any Frontage Road Work or any expiration of the Town Work Easement, the Town at itsഀ
sole expense shall vacate and cause its agents and contractors to vacate the North Dayഀ
Lot, remove any related debris, materials and equipment, and shall restore any affectedഀ
areas within the North Day Lot (or promptly reimburse VAI for any costs and expensesഀ
associated with any such restoration undertaken by VAI).ഀ
(d) Costs. The construction and installation of the Frontage Road Accessഀ
(including all restorations and repairs) shall be undertaken solely at the Town's expense,ഀ
and the Town shall bear and pay all costs and expenses incurred in connection therewith,ഀ
it being agreed that VAI will not have any obligation to undertake any such constructionഀ
or installation or to bear any such costs or expenses; provided, however, that VAI, at itsഀ
sole expense and in accordance with the Approved Development Plans, will undertakeഀ
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the removal and relocation of any trash storage facilities/improvements which are withinഀ
the Frontage Road Access. VAI does not and will not have any obligation to furnishഀ
improvements to public ways or areas in connection with the North Day Project except toഀ
the extent specifically contained in the Approved Development Plans.ഀ
(e) No Liabilitv for VAI. The Town agrees that VAI shall not have anyഀ
liability to the Town or any other person, party or entity for or on account of injury toഀ
persons or property, or any other liability, loss, or damage, or any claim related thereto,ഀ
arising from the use and enjoyment of or in connection with the Town Work Easement,ഀ
and any such liability is hereby waived to the fullest extent permitted by law.ഀ
(f) Supplement and Access. If any Frontage Road Access is established, thenഀ
(i) an access easement will be memorialized as part, of the Servient Estate with aഀ
supplement in accordance with paragraph 5 below; and (ii) the Town will grant to VAI,ഀ
pursuant to a separate agreement, an access easement adjacent to the Frontage Roadഀ
Access within the Town Property to use and enjoy that access way for vehicular andഀ
pedestrian ingress and egress.ഀ
5. Further Record Description of Servient Estate. VAI will prepare a supplement forഀ
this Agreement to establish a revised depiction of the Servient Estate to reflect its relocationഀ
pursuant to the Approved Development Plans and based on as-built conditions (the "Relocationഀ
Supplement"). The Relocation Supplement, and any relaxed legal description supplements, willഀ
be mutually executed by VAI and the Town and will be recorded in the Records.ഀ
6. Maintenance.ഀ
(a) Skier Drop-Off Area. VAI, at its sole cost and expense, will maintain theഀ
Skier Drop-Off Area, the Vehicular Ways, Pedestrian Ways and all improvementsഀ
located thereon and therein (including snow-melt systems and excluding the Frontageഀ
Road Access, if any) in good condition and repair, ordinary wear and tear excepted, andഀ
will bear all operating costs arising in connection with the Skier Drop-Off Area and allഀ
uses and functions therein, including utilities costs for lighting and snow-melt operations.ഀ
During the term of the Easement, VAI shall operate the snowmelt systems within theഀ
Servient Estate, to the extent of their capacities, in order to provide snow removal for theഀ
Servient Estate to an equivalent standard that the Town implements for its snowmeltഀ
systems within the Tract C public pedestrian access areas adjoining the Servient Estate.ഀ
This snowmelt operation will cease at such time, if ever, as the Town discontinues theഀ
operation of its public snowmelt systems within those Tract C areas;. provided, however,ഀ
VAI will continue to provide snow removal for the Skier Drop-Off Area, the Vehicularഀ
Ways, Pedestrian Ways, at its sole cost, in accordance with the Vail Town Code and theഀ
means and methods determined by VAI in its sole discretion.ഀ
(b) Frontage Road Access. The Town, at its sole cost and expense, willഀ
maintain any Frontage Road Access and all improvements located thereon and thereinഀ
(including snow-melt systems) in good condition and repair, ordinary wear and tearഀ
excepted, and will bear all operating costs arising in connection with any Frontage Roadഀ
Access and all uses and functions therein, including utilities costs for lighting and snow-ഀ
melt operations. The Town will furnish separate metering or sub-metering for anyഀ
Frontage Road Access. The Town will also share in maintenance, repair and replacementഀ
costs incurred by or through VAI for the North Day Snow-Melt Source, and relatedഀ
delivery systems, based on relative utilities consumption for snow-melt operations of anyഀ
Frontage Road Access (with the Town's share to be payable within thirty (30) days afterഀ
demand from time to time).ഀ
(c) Vehicular Wavs and Pedestrian Wavs. The Town will further provide orഀ
promptly reimburse VAT for the costs of repairs to the Vehicular Ways and Pedestrianഀ
Ways to the extent any damage or wear and tear thereto (other than ordinary wear andഀ
tear) arises- in connection with the use of the Town Work Easement.ഀ
(d) Interim Snow-Plowing. VAI will furnish snow-plowing for the Servientഀ
Estate in the ordinary course of business unless and until the Servient Estate incorporatesഀ
a snow-melt system.ഀ
(e) Off-Site Maintenance. Except for the maintenance of the Town Propertyഀ
Access Way, the Town will maintain all improvements located adjacent to but outside theഀ
boundaries of the North Day Lot, including snow-melt systems (collectively, the "Off-ഀ
Site Improvements") in good condition and repair, ordinary wear and tear excepted, andഀ
will bear all operating costs arising in connection with the Off-Site Improvements and allഀ
uses and functions of such Off-Site Improvements, including utilities costs for lightingഀ
and snow-melt operations.ഀ
(f) Access for Maintenance. The Town, as part of the Easement, may comeഀ
upon the Servient Estate and other portions of the North Day Lot as reasonably necessaryഀ
for the Town's performance of its maintenance obligations under this paragraph 6,ഀ
provided that any such entry shall not cause any interference with the use of or damage toഀ
other portions of the North Day Lot.ഀ
(g) Mechanic's Liens. In connection with any maintenance or other workഀ
undertaken by or through the Town (including, without limitation, any Frontage Roadഀ
Work under paragraph 4 above), the Town shall not cause, suffer or permit anyഀ
mechanic's, materialmen's or other liens to attach to or be recorded against the Servientഀ
Estate or the North Day Lot or any payment claims to be made against VAI. In the eventഀ
any such lien claim is recorded, the Town at its expense shall promptly cause its removalഀ
and release of record or promptly reimburse VAI (after demand) for VAT's costs andഀ
expenses incurred in securing the lien release.ഀ
7. Liabilitv Insurance. The Town and VAT at all times will maintain in full forceഀ
and effect, adequate general commercial or general comprehensive liability insurance providingഀ
coverage against all claims for personal injury, death or property damage occurring upon, in orഀ
about the Servient Estate or arising in connection with the use and enjoyment of the Easement orഀ
Town Work Easement. Each party's insurance shall be primary and non-contributory to anyഀ
insurance held by the other party with respect to any events or loss arising by, through or underഀ
the first party. 'ഀ
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8. Skier Dron-Off Reauirements. The Town acknowledges and agrees that by virtueഀ
of the construction of the existing Skier Drop-Off Area, Vehicular Ways and Pedestrian Ways,ഀ
and the making of this Agreement, VAI has satisfied the requirements and obligations arisingഀ
under the Second Amendment to provide paving and other improvements for the Skier Drop-Offഀ
Area, and further reconfirms, as set forth in the Second Amendment, that the requirements toഀ
incorporate skier drop-off within the approved plans for the North Day Lot Project have beenഀ
satisfied. Upon the recordation of this Agreement in the Records, the Letter of Credit and theഀ
Easement (as those terms are defined in the Second Amendment) shall be returned and releasedഀ
to VAI, along with such related documentation as the issuer of the Letter of Credit may require,ഀ
and the Town shall have no interest therein.ഀ
9. Successors and Assians. The rights and any obligations of VAI hereunder shallഀ
run with the land and shall be binding upon and inure to the benefit of the ownership of theഀ
Servient Estate, with such rights to also benefit the ownership of other portions of the North Dayഀ
Lot as applicable, with each owner to be liable only for such obligations that accrue during theഀ
ownership period of such successor owner. The Town may not transfer or assign the Easementഀ
or Town Work Easement, without the prior written consent of VAI, which is not to beഀ
unreasonably withheld. Notwithstanding the foregoing, following the. approval of the Frontageഀ
Road Access Plans in accordance with paragraph 4 and subject to the terms and conditions ofഀ
this Agreement, the Town may authorize its contractors to perform the Frontage Road Workഀ
without VAI's consent. The Town will provide VAI with written notice of any suchഀ
authorization at least ten (10) days prior to commencement of any Frontage Road Work by theഀ
Town's contractors.ഀ
10. Amendment. The Easement and this Agreement may be terminated, amended orഀ
modified by further recorded instrument mutually executed by VAI and the Town,ഀ
notwithstanding that the Drop-Off Use under the Easement is a public benefit, and the Townഀ
shall have and retain all right, power and authority to make any such termination, amendment orഀ
modification as the Town may determine to be appropriate.ഀ
11. Remedies. VAI and the Town shall each have any remedies referenced herein orഀ
available at law or equity to enforce their respective rights and interests and the obligations of theഀ
other party under this Agreement, and all such remedies shall be cumulative with and non-ഀ
exclusive of one another; no exercise of any one remedy shall constitute an election to the bar ofഀ
the exercise of any other remedy.ഀ
12. Notices. All notices required under this Agreement shall either be (a) handഀ
delivered, (b) given by certified mail, return receipt requested, directed to the name and addressഀ
set forth below, (c) given by overnight courier directed to the name and address set forth below,ഀ
or (iv) sent by facsimile transmission to the applicable facsimile numbers set forth below. Allഀ
notices so given shall be considered effective (i) if hand delivered, when received, (ii) if byഀ
certified mail, three (3) calendar days after deposit, certified mail postage prepaid, with theഀ
United States Postal Service, (iii) if by overnight courier, one (1) business day after deposit withഀ
an overnight courier, with delivery charges prepaid, or (iv) if.by facsimile transmission, uponഀ
receipt of a machine-generated confirmation of a successful transmission of all pages. Any partyഀ
hereto may change the address or facsimile number to which future notices shall be sent byഀ
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notice given in accordance with this paragraph 12. A "business" day shall mean any day otherഀ
than a Saturday, a Sunday, or any holiday on which U.S. Mail service is not provided.ഀ
If to the Town: Town of Vailഀ
75 South Frontage Roadഀ
Vail, Colorado 81657ഀ
Attention: Director of Public Worksഀ
Facsimile No.:ഀ
With a conv to: Town of Vailഀ
75 South Frontage Roadഀ
Vail, Colorado 81657ഀ
Attention: Town Attorneyഀ
Facsimile No.: (970) 479-2157ഀ
If to VAI: The Vail Corporation d/b/a Vail Associates, Inc.ഀ
390 Interlocken Crescent, Suite 1000ഀ
Broomfield, Colorado 80021ഀ
Attention: Legal Departmentഀ
Facsimile No.: (303) 648-4787ഀ
With a covv to: Vail Resorts Management Companyഀ
P.O. Box 959ഀ
137 Benchmark Roadഀ
Avon, Colorado 81620ഀ
Attention: Assistant General Counselഀ
Facsimile No.: (970) 754-2555ഀ
13. Statutorv Protection. The members of the general public enjoying the Easementഀ
shall all constitute invited guests of the Town for purposes of C.R.S. § 33-41-103, and pursuantഀ
thereto and to the fullest extent the Easement grant falls within the scope of C.R.S. § 33-41-103,ഀ
VAI and Town mutually intend and agree that the VAI shall have the full benefit and protectionഀ
of the provisions of C.R.S. § 33-41-103 in relation to the Drop-Off Use and the Easement. VAIഀ
specifically acknowledges and agrees that no charge shall be levied upon and no revenues shallഀ
be collected for the enjoyment of the Drop-Off Use or the Easement (provided that the foregoingഀ
will not limit the obligations of the Town hereunder or any obligations of public users arising byഀ
operation of law). References herein to C.R.S. § 3341-103 shall be deemed to include anyഀ
subsequent amendments thereto or successor provisions of law.ഀ
14. Governing Law: Miscellaneous. This Agreement will be governed by andഀ
construed in accordance with the laws of the State of Colorado, without reference to conflicts ofഀ
laws principles. Headings and captions contained herein are inserted as a matter of convenienceഀ
and for reference, and in no way define, limit, extend, or describe the scope of this Agreement orഀ
any provisions hereof. Where required for proper interpretation of this Agreement, words inഀ
singular shall include the plural and the masculine gender shall include the neuter and theഀ
feminine, and vice versa. The terms "include" and "including" shall each be construed as ifഀ
followed by the phrase "without being limited to" whether or not so stated. This Agreement mayഀ
be executed in counterparts, each of which will constitute an original, and which together willഀ
constitute one and the same agreement.ഀ
15. Entire Agreement. This Agreement sets forth the entire agreement andഀ
understanding of the parties with respect to the subject matter hereof, and any prior or extrinsicഀ
agreements or understandings with respect to the subject matter hereof, whether oral or written,ഀ
are superseded hereby.ഀ
lb. Severabilitv. If any provision of this Agreement as applied to particularഀ
circumstances shall be illegal and unenforceable, such illegality and unenforceability shall notഀ
affect the enforceability of any other provisions of this Agreement, or the affected provision asഀ
applied to circumstances for which it is enforceable, it being intended that all provisions of thisഀ
Agreement be valid and enforceable to the fullest extent legally permissible. Any provisionഀ
suffering from such illegality or unenforceability shall be deemed replaced with a substituteഀ
provision which as closely as legally possible reflects the substantive content and intended effectഀ
of the illegal or unenforceable provision.ഀ
17. Immunitv. VAI acknowledges that the Town is relying on, and does not waive orഀ
intend to waive by any provision of this Agreement, the monetary limitations or any other rights,ഀ
immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S.ഀ
§ 24-10-101, et SeMc .ഀ
18. Recordine. This Agreement will be recorded in the Records.ഀ
19. Contingencv; No Debt. Pursuant to Article X, § 20 of the Colorado Constitution,ഀ
the Town's financial obligations under this Agreement are specifically contingent upon annualഀ
appropriation of funds sufficient to perform such obligation. This Agreement shall neverഀ
constitute a multi-year debt or financial obligation of the Town within any statutory orഀ
constitutional provision.ഀ
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IN WITNESS WHEREOF, VAI and the Town have made this Skier Drop-Off Easementഀ
Agreement as of the day of , 2009.ഀ
VAI:ഀ
THE VAIL CORPORATION, d/b/a VAILഀ
ASSOCIATES, INC., a Colorado corporationഀ
By:ഀ
Keith Fernandez,ഀ
President and COO-VRDCഀ
STATE OF COLORADO )ഀ
) ss.ഀ
COUNTY OF EAGLE )ഀ
The foregoing instrument was acknowledged before me this day ofഀ
, 2009, by Keith Fernandez as President and COO-VRDC of The Vailഀ
Corporation, d/b/a Vail Associates, Inc., a Colorado corporation.ഀ
Witness my hand and official seal.ഀ
My Commission expires:ഀ
Notary Publicഀ
[Town signature block follows on next page]ഀ
10ഀ
TOWN:ഀ
By:ഀ
ATTEST:ഀ
Lorelei Donaldson, Town Clerkഀ
STATE OF COLORADO )ഀ
ss:ഀ
COUNTY OF EAGLE )ഀ
TOWN OF VAIL, a municipal corporation dulyഀ
organized and existing under and by virtue of theഀ
laws of the State of Coloradoഀ
Stanley B. Zemler, Town Managerഀ
The foregoing instrument was acknowledged before me this day ofഀ
2009, by Stanley B. Zemler.as Town Manager of the Town of Vail, a municipal corporation dulyഀ
organized and existing under and by virtue of the laws of the State of Colorado.ഀ
WITNESS my hand and official seal.ഀ
My commission expires:ഀ
Notary Publicഀ
11ഀ
EXHIBIT Aഀ
Legal Description of North Day Lotഀ
Lot 1, Block 1, Vail/Lio ishead, Third Filing, according to the recorded plat thereof, County ofഀ
Eagle, State of Colorado, except those portions conveyed in Deeds recorded November 3, 1972,ഀ
in Book 226 at Page 32 and recorded July 11, 1983 in Book 363, at Page 341.ഀ
A-1ഀ
EXgfBIT Bഀ
De iction of present Se0ient Estateഀ
pഀ
(See the attached)ഀ
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EXHIBIT Cഀ
General Depictionഀ
of Relocatedഀ
Servient Estateഀ
(See the attached)ഀ
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EXHIBIT Dഀ
Town Propertyഀ
The real property conveyed to the Town of Vail by deed recorded in the real property records forഀ
Eagle County, Colorado, on July 11, 1983, in Book 363, at Page 341.ഀ
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EXHIBIT Eഀ
General Depictionഀ
of Frontage Road Accessഀ
(See the attached)ഀ
E-1ഀ
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