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HomeMy WebLinkAbout2009-13 Approving the Skier Drop-off Easement with Vail Associates Inc.RESOLUTION NO. 13਍ഀ Series of 2009਍ഀ A RESOLUTION APPROVING THE SKIER DROP-OFF EASEMENT AGREEMENT BETWEEN਍ഀ THE TOWN OF VAIL, COLORADO AND THE VAIL CORPORATION d/b/a VAIL਍ഀ ASSOCIATES, INC.; AND SETTING FORTH DETAILS IN REGARD THERETO.਍ഀ WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Colorado਍ഀ is a home rule municipal corporation duly organized and existing under the laws of the State of਍ഀ Colorado and the Town Charter (the "Charter"); and਍ഀ WHEREAS, the members of the Town Council of the Town (the "Council") have been਍ഀ duly elected and qualified; and਍ഀ WHEREAS, Vail Associates, Inc. ("VAI") is the owner of certain real property in the Town਍ഀ of Vail commonly known as the "North Day Lot"; and਍ഀ WHEREAS, the Town has given requisite development plan approvals for developing the਍ഀ North Day Lot as a multi-family employee housing residential project, together with other related਍ഀ improvements. The approved development plans provide for the construction and relocation of a਍ഀ nine (9) space skier drop-off area; and਍ഀ WHEREAS, the Town and VAI wish to enter into this Skier Drop-Off Easement਍ഀ Agreement in furtherance of implementing the use of the skier drop-off area for its intended਍ഀ 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 OF਍ഀ VAIL, COLORADO THAT:਍ഀ Section 1. The Council hereby approves and authorizes the Town Manager to enter into the਍ഀ Skier Drop-Off Easement Agreement with VAI in substantially the same form as attached hereto਍ഀ 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 of਍ഀ the Town of Vail held this 5t' day of May, 2009. 401਍ഀ Richard Clevelan਍ഀ Town Mayor਍ഀ A ES਍ഀ onaldso SOWN਍ഀ fAwnGlerk਍ഀ Resolution No. 13, Series 2009਍ഀ SKIER DROP-OFF EASEMENT AGREEMENT਍ഀ THIS SKIER DROP-OFF EASEMENT AGREEMENT (this "Agreement") is made by਍ഀ and between THE VAIL CORPORATION d/b/a VAIL ASSOCIATES, INC., a Colorado਍ഀ 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 existing਍ഀ under and by virtue of the laws of the State of Colorado (the "Town"), whose street address is਍ഀ 75 South Frontage Road, Vail, Colorado 81657.਍ഀ A. The Town and VAI, along with the Vail Reinvestment Authority, are parties to਍ഀ that certain Core Site Development Agreement dated November 8, 2004, and recorded in the real਍ഀ property records for Eagle County, Colorado (the "Records"), on November 21, 2005, at਍ഀ Reception No. 937604 (the "Original Development Agreement"), as modified by an Amendment਍ഀ to Core Site Development Agreement dated July 19, 2005 (the "First Amendment"), made਍ഀ among the same parties, and recorded in the Records on November 21, 2005, at Reception਍ഀ No. 937605, and as further modified by that certain Second Amendment to Core Site਍ഀ Development Agreement dated as of December 21, 2007 (the "Second Amendment") (as so਍ഀ amended, the "Development Agreement").਍ഀ B. Initially capitalized terms used but not defined in or by other reference under this਍ഀ Agreement shall have the meanings ascribed to them under the terms of the Development਍ഀ 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 the਍ഀ Arrabelle Project, which is commonly known as the "North Day Lot," and which is legally਍ഀ described on the attached Exhibit A ("North Day Lot"). VAI has completed the initial਍ഀ construction of the Skier Drop-Off Area in accordance with the Second Amendment, which਍ഀ 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 the਍ഀ North Day Lot as a multi-family residential project with employee housing units, together with਍ഀ site and other ancillary or related improvements. Such approvals were rendered by the Town's਍ഀ Planning and Environmental Commission on February 9, 2009 (with modified conditions਍ഀ adopted by Town Council on March 3, 2009), and by the Town's Design Review Board on਍ഀ February 18, 2009. Such approved development plans, together with any modifications or਍ഀ supplements thereto given requisite Town approvals, are sometimes referred to hereinafter as the਍ഀ "Approved Development Plans," and the improvements developed from time to time on the਍ഀ North Day Lot are sometimes referred to hereinafter as the "North Day Project." The Approved਍ഀ Development Plans provide for a relocation of the Skier Drop-Off Area.਍ഀ E. The Town and VAI have entered into this Agreement in furtherance of਍ഀ implementing the use of the Skier Drop-Off Area for its intended purposes, and of integrating਍ഀ such use with the future North Day Lot development.਍ഀ .NOW, THEREFORE, in consideration of the above premises, and other good and਍ഀ valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Town਍ഀ and VAI hereby agree as follows:਍ഀ 1. Grant of Easement.਍ഀ (a) Skier Dron-Off Easement. Subject to the terms and limitations set forth਍ഀ 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 following਍ഀ 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 access਍ഀ ways within the North Day Lot as necessary for purposes of ingress and egress to and਍ഀ from the Skier Drop-Off Area; (iii) for Recreational Users (defined below) engaged in the਍ഀ Drop-Off Use to employ the pedestrian walkways within the North Day Lot as necessary਍ഀ for purposes of pedestrian ingress and egress between the Skier Drop-Off Area and the਍ഀ easterly boundary of the North Day Lot; and (iv) for certain maintenance functions as set਍ഀ forth in paragraph 6 below. Those vehicular access ways are sometimes referred to਍ഀ hereinafter as the "Vehicular Ways," and those pedestrian walkways are sometimes਍ഀ referred to hereinafter as the "Pedestrian Ways." The "Servient Estate," as that term is਍ഀ used herein, shall mean the Skier Drop-Off Area, Vehicular Ways, and Pedestrian Ways,਍ഀ which are initially established by their present existing configuration depicted on਍ഀ Exhibit B attached hereto. The Servient Estate will be subject to adjustment as਍ഀ hereinafter set forth.਍ഀ (b) Dron-Off Use. The "Drop-Off Use" shall mean the short-term loading and਍ഀ unloading of Vail Mountain skiers, snowboarders and users of other Vail Mountain਍ഀ recreational resources ("Recreational Users") by private passenger vehicles during -the਍ഀ Vail Mountain ski season (i.e., the season annually during which skiing/snowboarding਍ഀ and related ski lift transport are offered to the public as a commercial operation) for the਍ഀ periods when the ski lift is in operation (the "Reserved Hours") (i. e. generally between਍ഀ the hours of 7:00 AM to 7:00 PM). As part of the North Day Project, VAI will cause਍ഀ signage to be posted in the Skier Drop-Off Area disclosing the Reserved Hours for the਍ഀ 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 the਍ഀ Easement and its enjoyment will be suspended commencing on April 1, 2010 and਍ഀ 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 the਍ഀ Easement shall be limited to the surface of the areas comprising the Servient Estate from਍ഀ 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 the਍ഀ Servient Estate (provided that the Servient Estate will not be deprived of the subjacent਍ഀ and lateral support necessary for the ordinary use and enjoyment of the Easement), and਍ഀ (ii) all air space overlying the Servient Estate that is above the height necessary to਍ഀ accommodate the Easement use (and any above-surface improvements given the requisite਍ഀ governmental approvals of the Town shall be deemed to fall within this clause (ii)). In਍ഀ 2਍ഀ connection with VAI's exercise of rights under this paragraph I (d), after the਍ഀ commencement of the 2011-2012 Vail Mountain ski season (while skiing/snowboarding਍ഀ and related lift transportation is offered to the public), except as may be necessary for਍ഀ short term maintenance or other bona fide purposes, the Drop-Off Use shall not be਍ഀ suspended by VAI during the Vail Mountain ski-season. After the commencement of the਍ഀ 2011-2012 Vail Mountain ski season and before undertaking any developments or਍ഀ improvements to the Servient Estate during the Vail Mountain ski-season pursuant to this਍ഀ paragraph I (d) that would suspend the Drop-Off Use, VAI will provide the Town with at਍ഀ least ten (10) days prior written notice and VAI will obtain any permits required to be਍ഀ obtained under the Vail Town Code for the applicable work. Notwithstanding anything਍ഀ in this Agreement to the contrary, if any need arises for repairs or replacements to the਍ഀ Servient Estate that presents an imminent safety risk and emergency because of a਍ഀ dangerous condition, then VAI may suspend the Drop-Off Use and complete the਍ഀ 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 suspension਍ഀ of the Drop-Off Use as soon as reasonably practicable.਍ഀ 2. Non-Exclusive Use. The Easement shall be non-exclusive, and VAI, for itself਍ഀ and its successors in interest in and to the North Day Lot, expressly reserves the right to the use਍ഀ and enjoyment of the Servient Estate for any and all purposes that are not materially inconsistent਍ഀ 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 development਍ഀ of the North Day Project, the Servient Estate or portions thereof may be relocated by VAI਍ഀ consistently with the Approved Development Plans (the relocated Servient Estate being਍ഀ generally depicted on Exhibit C attached hereto). The Servient Estate as relocated will਍ഀ continue to incorporate and serve nine (9) parking spaces for the Drop-Off Use. The਍ഀ Servient Estate shall be deemed re-defined by any such relocation when the applicable਍ഀ 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 a਍ഀ separate agreement, an easement to construct, maintain, replace and repair an access way਍ഀ within the Town Property (defined below), and to operate, use and enjoy that access way਍ഀ for vehicular and pedestrian ingress and egress (the "Town Property Access Way"). The਍ഀ parties mutually acknowledge and agree that the Town Property Access Way shall be਍ഀ subject to use for vehicular access for purposes of serving the enjoyment of the Drop-Off਍ഀ Use within the Skier Drop-Off Area. The "Town Property" shall mean the site owned by਍ഀ the Town that is contiguous to the North Day Lot and is legally described and depicted on਍ഀ Exhibit D hereto.਍ഀ 4. Frontage Road Access.਍ഀ (a) Town Work Easement. VAI hereby further grants the Town an easement਍ഀ over the applicable portions of the North Day Lot (the "Town Work Easement") to਍ഀ construct, as a Vehicular Way within the Servient Estate and for use as part of the਍ഀ 3਍ഀ Easement, a snow-melted vehicular drive that is accessed from Frontage Road and that is਍ഀ generally located within the North Day Lot and the Town Property as depicted on਍ഀ Exhibit E attached hereto (the "Frontage Road Access"). If and when the Frontage Road਍ഀ Access is initially constructed and completed, the Town Work Easement will terminate਍ഀ and be of no further force or effect.਍ഀ (b) Configuration of Access. The configuration of and improvement਍ഀ specifications for the Frontage Road Access must be compatible with the final਍ഀ configuration of the Skier Drop-Off Area and the other elements of the North Day Project਍ഀ as determined by VAI in its ordinary business judgment. The plans and specifications for਍ഀ the Frontage Road Access and all site modifications and improvements pertaining or਍ഀ incidental thereto (the "Frontage Road Access Plans") shall be subject to the reasonable਍ഀ approval of VAI in writing, prior to the commencement of the Frontage Road Work਍ഀ (defined below). The Town will be permitted and required to connect the snow-melt਍ഀ 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") in਍ഀ accordance with VAI's specifications.਍ഀ (c) Frontage Road Work. The Town shall cause the construction and਍ഀ installation work for the Frontage Road Access (the "Frontage Road Work") to be਍ഀ undertaken and completed in compliance with the final approved Frontage Road Access਍ഀ Plans, in a good and workmanlike manner, and in accordance with good standards and਍ഀ practices generally prevailing in the construction industry. The Frontage Road Work will਍ഀ include, as applicable, restorations, replacements and/or reconfigurations of any North਍ഀ Day Lot improvements affected by the Frontage Road Access. The Town agrees that the਍ഀ construction of the Frontage Road Access shall not prevent access to the North Day਍ഀ Project or unreasonably interfere with any construction or development on or use or਍ഀ 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 the਍ഀ commencement of any Frontage Road Work: (i) the Town and VAI will agree upon the਍ഀ construction schedule (including construction hours and times) and the location, physical਍ഀ scope and required safety measures for the Frontage Road Work during the construction਍ഀ process; and (ii) the Town shall furnish to VAI. copies of all requisite permits and਍ഀ approvals from CDOT authorizing the related curb cut and other access improvements਍ഀ and permitting ingress and egress to and from Frontage Road. Upon the completion of਍ഀ any Frontage Road Work or any expiration of the Town Work Easement, the Town at its਍ഀ sole expense shall vacate and cause its agents and contractors to vacate the North Day਍ഀ Lot, remove any related debris, materials and equipment, and shall restore any affected਍ഀ areas within the North Day Lot (or promptly reimburse VAI for any costs and expenses਍ഀ associated with any such restoration undertaken by VAI).਍ഀ (d) Costs. The construction and installation of the Frontage Road Access਍ഀ (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 construction਍ഀ or installation or to bear any such costs or expenses; provided, however, that VAI, at its਍ഀ sole expense and in accordance with the Approved Development Plans, will undertake਍ഀ 4਍ഀ the removal and relocation of any trash storage facilities/improvements which are within਍ഀ the Frontage Road Access. VAI does not and will not have any obligation to furnish਍ഀ improvements to public ways or areas in connection with the North Day Project except to਍ഀ the extent specifically contained in the Approved Development Plans.਍ഀ (e) No Liabilitv for VAI. The Town agrees that VAI shall not have any਍ഀ liability to the Town or any other person, party or entity for or on account of injury to਍ഀ 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, then਍ഀ (i) an access easement will be memorialized as part, of the Servient Estate with a਍ഀ 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 Road਍ഀ Access within the Town Property to use and enjoy that access way for vehicular and਍ഀ pedestrian ingress and egress.਍ഀ 5. Further Record Description of Servient Estate. VAI will prepare a supplement for਍ഀ this Agreement to establish a revised depiction of the Servient Estate to reflect its relocation਍ഀ pursuant to the Approved Development Plans and based on as-built conditions (the "Relocation਍ഀ Supplement"). The Relocation Supplement, and any relaxed legal description supplements, will਍ഀ 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 the਍ഀ Skier Drop-Off Area, the Vehicular Ways, Pedestrian Ways and all improvements਍ഀ located thereon and therein (including snow-melt systems and excluding the Frontage਍ഀ Road Access, if any) in good condition and repair, ordinary wear and tear excepted, and਍ഀ will bear all operating costs arising in connection with the Skier Drop-Off Area and all਍ഀ 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 the਍ഀ Servient Estate, to the extent of their capacities, in order to provide snow removal for the਍ഀ Servient Estate to an equivalent standard that the Town implements for its snowmelt਍ഀ 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 the਍ഀ 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 Vehicular਍ഀ Ways, Pedestrian Ways, at its sole cost, in accordance with the Vail Town Code and the਍ഀ means and methods determined by VAI in its sole discretion.਍ഀ (b) Frontage Road Access. The Town, at its sole cost and expense, will਍ഀ maintain any Frontage Road Access and all improvements located thereon and therein਍ഀ (including snow-melt systems) in good condition and repair, ordinary wear and tear਍ഀ excepted, and will bear all operating costs arising in connection with any Frontage Road਍ഀ 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 any਍ഀ Frontage Road Access. The Town will also share in maintenance, repair and replacement਍ഀ costs incurred by or through VAI for the North Day Snow-Melt Source, and related਍ഀ delivery systems, based on relative utilities consumption for snow-melt operations of any਍ഀ Frontage Road Access (with the Town's share to be payable within thirty (30) days after਍ഀ demand from time to time).਍ഀ (c) Vehicular Wavs and Pedestrian Wavs. The Town will further provide or਍ഀ promptly reimburse VAT for the costs of repairs to the Vehicular Ways and Pedestrian਍ഀ Ways to the extent any damage or wear and tear thereto (other than ordinary wear and਍ഀ tear) arises- in connection with the use of the Town Work Easement.਍ഀ (d) Interim Snow-Plowing. VAI will furnish snow-plowing for the Servient਍ഀ Estate in the ordinary course of business unless and until the Servient Estate incorporates਍ഀ a snow-melt system.਍ഀ (e) Off-Site Maintenance. Except for the maintenance of the Town Property਍ഀ Access Way, the Town will maintain all improvements located adjacent to but outside the਍ഀ 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, and਍ഀ will bear all operating costs arising in connection with the Off-Site Improvements and all਍ഀ uses and functions of such Off-Site Improvements, including utilities costs for lighting਍ഀ and snow-melt operations.਍ഀ (f) Access for Maintenance. The Town, as part of the Easement, may come਍ഀ upon the Servient Estate and other portions of the North Day Lot as reasonably necessary਍ഀ 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 to਍ഀ other portions of the North Day Lot.਍ഀ (g) Mechanic's Liens. In connection with any maintenance or other work਍ഀ undertaken by or through the Town (including, without limitation, any Frontage Road਍ഀ Work under paragraph 4 above), the Town shall not cause, suffer or permit any਍ഀ mechanic's, materialmen's or other liens to attach to or be recorded against the Servient਍ഀ Estate or the North Day Lot or any payment claims to be made against VAI. In the event਍ഀ any such lien claim is recorded, the Town at its expense shall promptly cause its removal਍ഀ and release of record or promptly reimburse VAI (after demand) for VAT's costs and਍ഀ expenses incurred in securing the lien release.਍ഀ 7. Liabilitv Insurance. The Town and VAT at all times will maintain in full force਍ഀ and effect, adequate general commercial or general comprehensive liability insurance providing਍ഀ coverage against all claims for personal injury, death or property damage occurring upon, in or਍ഀ about the Servient Estate or arising in connection with the use and enjoyment of the Easement or਍ഀ Town Work Easement. Each party's insurance shall be primary and non-contributory to any਍ഀ insurance held by the other party with respect to any events or loss arising by, through or under਍ഀ the first party. '਍ഀ 6਍ഀ 8. Skier Dron-Off Reauirements. The Town acknowledges and agrees that by virtue਍ഀ 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 arising਍ഀ under the Second Amendment to provide paving and other improvements for the Skier Drop-Off਍ഀ Area, and further reconfirms, as set forth in the Second Amendment, that the requirements to਍ഀ incorporate skier drop-off within the approved plans for the North Day Lot Project have been਍ഀ satisfied. Upon the recordation of this Agreement in the Records, the Letter of Credit and the਍ഀ Easement (as those terms are defined in the Second Amendment) shall be returned and released਍ഀ 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 shall਍ഀ run with the land and shall be binding upon and inure to the benefit of the ownership of the਍ഀ Servient Estate, with such rights to also benefit the ownership of other portions of the North Day਍ഀ Lot as applicable, with each owner to be liable only for such obligations that accrue during the਍ഀ ownership period of such successor owner. The Town may not transfer or assign the Easement਍ഀ or Town Work Easement, without the prior written consent of VAI, which is not to be਍ഀ unreasonably withheld. Notwithstanding the foregoing, following the. approval of the Frontage਍ഀ Road Access Plans in accordance with paragraph 4 and subject to the terms and conditions of਍ഀ this Agreement, the Town may authorize its contractors to perform the Frontage Road Work਍ഀ without VAI's consent. The Town will provide VAI with written notice of any such਍ഀ authorization at least ten (10) days prior to commencement of any Frontage Road Work by the਍ഀ Town's contractors.਍ഀ 10. Amendment. The Easement and this Agreement may be terminated, amended or਍ഀ 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 Town਍ഀ shall have and retain all right, power and authority to make any such termination, amendment or਍ഀ modification as the Town may determine to be appropriate.਍ഀ 11. Remedies. VAI and the Town shall each have any remedies referenced herein or਍ഀ available at law or equity to enforce their respective rights and interests and the obligations of the਍ഀ 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 of਍ഀ the exercise of any other remedy.਍ഀ 12. Notices. All notices required under this Agreement shall either be (a) hand਍ഀ delivered, (b) given by certified mail, return receipt requested, directed to the name and address਍ഀ 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. All਍ഀ notices so given shall be considered effective (i) if hand delivered, when received, (ii) if by਍ഀ certified mail, three (3) calendar days after deposit, certified mail postage prepaid, with the਍ഀ United States Postal Service, (iii) if by overnight courier, one (1) business day after deposit with਍ഀ an overnight courier, with delivery charges prepaid, or (iv) if.by facsimile transmission, upon਍ഀ receipt of a machine-generated confirmation of a successful transmission of all pages. Any party਍ഀ hereto may change the address or facsimile number to which future notices shall be sent by਍ഀ 7਍ഀ notice given in accordance with this paragraph 12. A "business" day shall mean any day other਍ഀ than a Saturday, a Sunday, or any holiday on which U.S. Mail service is not provided.਍ഀ If to the Town: Town of Vail਍ഀ 75 South Frontage Road਍ഀ Vail, Colorado 81657਍ഀ Attention: Director of Public Works਍ഀ Facsimile No.:਍ഀ With a conv to: Town of Vail਍ഀ 75 South Frontage Road਍ഀ Vail, Colorado 81657਍ഀ Attention: Town Attorney਍ഀ Facsimile No.: (970) 479-2157਍ഀ If to VAI: The Vail Corporation d/b/a Vail Associates, Inc.਍ഀ 390 Interlocken Crescent, Suite 1000਍ഀ Broomfield, Colorado 80021਍ഀ Attention: Legal Department਍ഀ Facsimile No.: (303) 648-4787਍ഀ With a covv to: Vail Resorts Management Company਍ഀ P.O. Box 959਍ഀ 137 Benchmark Road਍ഀ Avon, Colorado 81620਍ഀ Attention: Assistant General Counsel਍ഀ Facsimile No.: (970) 754-2555਍ഀ 13. Statutorv Protection. The members of the general public enjoying the Easement਍ഀ shall all constitute invited guests of the Town for purposes of C.R.S. § 33-41-103, and pursuant਍ഀ 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 protection਍ഀ of the provisions of C.R.S. § 33-41-103 in relation to the Drop-Off Use and the Easement. VAI਍ഀ specifically acknowledges and agrees that no charge shall be levied upon and no revenues shall਍ഀ be collected for the enjoyment of the Drop-Off Use or the Easement (provided that the foregoing਍ഀ will not limit the obligations of the Town hereunder or any obligations of public users arising by਍ഀ operation of law). References herein to C.R.S. § 3341-103 shall be deemed to include any਍ഀ subsequent amendments thereto or successor provisions of law.਍ഀ 14. Governing Law: Miscellaneous. This Agreement will be governed by and਍ഀ construed in accordance with the laws of the State of Colorado, without reference to conflicts of਍ഀ laws principles. Headings and captions contained herein are inserted as a matter of convenience਍ഀ and for reference, and in no way define, limit, extend, or describe the scope of this Agreement or਍ഀ any provisions hereof. Where required for proper interpretation of this Agreement, words in਍ഀ singular shall include the plural and the masculine gender shall include the neuter and the਍ഀ feminine, and vice versa. The terms "include" and "including" shall each be construed as if਍ഀ followed by the phrase "without being limited to" whether or not so stated. This Agreement may਍ഀ be executed in counterparts, each of which will constitute an original, and which together will਍ഀ constitute one and the same agreement.਍ഀ 15. Entire Agreement. This Agreement sets forth the entire agreement and਍ഀ understanding of the parties with respect to the subject matter hereof, and any prior or extrinsic਍ഀ 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 particular਍ഀ circumstances shall be illegal and unenforceable, such illegality and unenforceability shall not਍ഀ affect the enforceability of any other provisions of this Agreement, or the affected provision as਍ഀ applied to circumstances for which it is enforceable, it being intended that all provisions of this਍ഀ Agreement be valid and enforceable to the fullest extent legally permissible. Any provision਍ഀ suffering from such illegality or unenforceability shall be deemed replaced with a substitute਍ഀ provision which as closely as legally possible reflects the substantive content and intended effect਍ഀ of the illegal or unenforceable provision.਍ഀ 17. Immunitv. VAI acknowledges that the Town is relying on, and does not waive or਍ഀ 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 annual਍ഀ appropriation of funds sufficient to perform such obligation. This Agreement shall never਍ഀ constitute a multi-year debt or financial obligation of the Town within any statutory or਍ഀ constitutional provision.਍ഀ [Balance of page intentionally left blank]਍ഀ 9਍ഀ IN WITNESS WHEREOF, VAI and the Town have made this Skier Drop-Off Easement਍ഀ Agreement as of the day of , 2009.਍ഀ VAI:਍ഀ THE VAIL CORPORATION, d/b/a VAIL਍ഀ ASSOCIATES, INC., a Colorado corporation਍ഀ By:਍ഀ Keith Fernandez,਍ഀ President and COO-VRDC਍ഀ STATE OF COLORADO )਍ഀ ) ss.਍ഀ COUNTY OF EAGLE )਍ഀ The foregoing instrument was acknowledged before me this day of਍ഀ , 2009, by Keith Fernandez as President and COO-VRDC of The Vail਍ഀ Corporation, d/b/a Vail Associates, Inc., a Colorado corporation.਍ഀ Witness my hand and official seal.਍ഀ My Commission expires:਍ഀ Notary Public਍ഀ [Town signature block follows on next page]਍ഀ 10਍ഀ TOWN:਍ഀ By:਍ഀ ATTEST:਍ഀ Lorelei Donaldson, Town Clerk਍ഀ STATE OF COLORADO )਍ഀ ss:਍ഀ COUNTY OF EAGLE )਍ഀ TOWN OF VAIL, a municipal corporation duly਍ഀ organized and existing under and by virtue of the਍ഀ laws of the State of Colorado਍ഀ Stanley B. Zemler, Town Manager਍ഀ The foregoing instrument was acknowledged before me this day of਍ഀ 2009, by Stanley B. Zemler.as Town Manager of the Town of Vail, a municipal corporation duly਍ഀ 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 Public਍ഀ 11਍ഀ EXHIBIT A਍ഀ Legal Description of North Day Lot਍ഀ Lot 1, Block 1, Vail/Lio ishead, Third Filing, according to the recorded plat thereof, County of਍ഀ 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-1਍ഀ EXgfBIT B਍ഀ De iction of present Se0ient Estate਍ഀ p਍ഀ (See the attached)਍ഀ g-1਍ഀ 'ONI VNIN33NI0਍ഀ ErIles9W 10-lAdQ RUM O UMS਍ഀ AB &qWA3V਍ഀ \ e O.LOb~1.1)~਍ഀ m~਍ഀ C਍ഀ \ L਍ഀ N਍ഀ I v਍ഀ $an 'M ar a-w-m avo਍ഀ {tom਍ഀ By MMMYajj਍ഀ _I uva Ij ov 03RDWO਍ഀ L _ -਍ഀ I ~ f਍ഀ W ` ~ x਍ഀ IL਍ഀ is OO਍ഀ 'z਍ഀ Q਍ഀ c~ ~ I I਍ഀ 1਍ഀ ~a਍ഀ \ oS਍ഀ a਍ഀ 3਍ഀ 71਍ഀ \਍ഀ R-DW aV3MSNon isa m਍ഀ O਍ഀ t਍ഀ Ld਍ഀ Q਍ഀ U਍ഀ N਍ഀ EXHIBIT C਍ഀ General Depiction਍ഀ of Relocated਍ഀ Servient Estate਍ഀ (See the attached)਍ഀ C-1਍ഀ 1 ~,.e~ ep A਍ഀ . 1 , 'ice yam਍ഀ re i਍ഀ t tj'. z I; $਍ഀ , 1• <.d ly IIi-3 ~ F•~਍ഀ 1 ;਍ഀ t਍ഀ s.਍ഀ 1 li ~n਍ഀ s n a਍ഀ W਍ഀ a਍ഀ LPL t o° 1 ''4 w ~਍ഀ O U oaaoa B .਍ഀ O °4,{{ , I I r o e਍ഀ a. IL਍ഀ Q CO P~• t o s਍ഀ a਍ഀ /r~ t V1 t 1 1.਍ഀ 6, 11 t' V\' ~ a ~ ,1i1. S sS਍ഀ C.਍ഀ Vie \ \ 1 a,'\`• oat਍ഀ b;਍ഀ e '਍ഀ a਍ഀ EXHIBIT D਍ഀ Town Property਍ഀ The real property conveyed to the Town of Vail by deed recorded in the real property records for਍ഀ Eagle County, Colorado, on July 11, 1983, in Book 363, at Page 341.਍ഀ D-1਍ഀ _਍ഀ y' '਍ഀ •਍ഀ ^ ^਍ഀ ' •਍ഀ TRACT C਍ഀ luasHCw s=a rwa> ®;~p•-r°._.,..•਍ഀ wren਍ഀ '਍ഀ w t.਍ഀ ਍ഀ ਍ഀ 1਍ഀ 1 tr:a D4਍ഀ .਍ഀ pxmna਍ഀ a਍ഀ ewr Lt vaac Sat) iYt਍ഀ . 1਍ഀ (lam or "0਍ഀ 1 ~i਍ഀ 1਍ഀ 1਍ഀ \ 1;਍ഀ 1.਍ഀ • t ti t1਍ഀ t T 1਍ഀ 1਍ഀ I਍ഀ \਍ഀ I਍ഀ •t਍ഀ ~i਍ഀ 1਍ഀ i1਍ഀ t \ \਍ഀ \਍ഀ tl i 1਍ഀ \਍ഀ tl਍ഀ g਍ഀ g਍ഀ I l਍ഀ 1 \਍ഀ EI਍ഀ S!਍ഀ 11਍ഀ a਍ഀ 1਍ഀ ^ t਍ഀ SWL 1਍ഀ 5਍ഀ 5 \਍ഀ b ~਍ഀ 1਍ഀ \਍ഀ 4਍ഀ 1਍ഀ t਍ഀ t਍ഀ 1਍ഀ 1਍ഀ l ,਍ഀ \਍ഀ 1਍ഀ 1਍ഀ 1਍ഀ 1਍ഀ .1਍ഀ 1t ,਍ഀ 1਍ഀ E;਍ഀ t਍ഀ 1\਍ഀ 6\਍ഀ e਍ഀ \ E,਍ഀ r-`਍ഀ -1 x i਍ഀ .I .਍ഀ P•~਍ഀ ai਍ഀ gige c਍ഀ \ rn ^਍ഀ e਍ഀ ' •1`0਍ഀ I ~7਍ഀ I " i ~•E਍ഀ I •਍ഀ 1਍ഀ moo., . • 1{ _ ~ 1~਍ഀ 7 ~਍ഀ VII/ / IX,਍ഀ 1਍ഀ ut਍ഀ 11 1 \਍ഀ 11਍ഀ 111 a਍ഀ 11'਍ഀ 11਍ഀ 1111 ~ t.਍ഀ 1਍ഀ 1e਍ഀ `E \਍ഀ E1\਍ഀ E਍ഀ 6t਍ഀ t਍ഀ 61਍ഀ 1\਍ഀ 1\\ 1਍ഀ 1਍ഀ OJ ~~-4r਍ഀ ~4y਍ഀ a਍ഀ j !1਍ഀ = 7਍ഀ \ ~S਍ഀ \ t$਍ഀ 1਍ഀ 1 ;਍ഀ 1 i਍ഀ t਍ഀ I i਍ഀ 1 a਍ഀ C਍ഀ 1 .k਍ഀ ti਍ഀ li 1 r਍ഀ / I਍ഀ giow਍ഀ av=ism਍ഀ EXHIBIT E਍ഀ General Depiction਍ഀ of Frontage Road Access਍ഀ (See the attached)਍ഀ E-1਍ഀ p•l1਍ഀ ':UNY1•t.lA7lR fV਍ഀ a~ R਍ഀ ACT਍ഀ 1਍ഀ D4 1 , \ Ewa xr r~i,'ot 1਍ഀ UP. y,਍ഀ 1਍ഀ 1 ~ iroy਍ഀ 1 . 4 .-t v 6 ~i. (਍ഀ Q ~ t ~ ` ~ 1 LpA਍ഀ Q 1 ,;r਍ഀ Z .F'L 61਍ഀ E਍ഀ E, t 1 11 - ~ ~ 1I~ i<਍ഀ 11, ~਍ഀ 1\਍ഀ E` li, dpI F਍ഀ 1 1 l1 4਍ഀ 11 J.਍ഀ 6 ~ 11' ~ Urp਍ഀ 9਍ഀ r+^I਍ഀ gR਍ഀ 1 t p਍ഀ 10਍ഀ I1li 1`1਍ഀ 1 1~,਍ഀ 61਍ഀ 6\਍ഀ t਍ഀ 11਍ഀ \1਍ഀ 11਍ഀ 1~1਍ഀ ~rr਍ഀ .1਍ഀ