HomeMy WebLinkAboutArrabelle Documents (2)V A I L R E S O R T S
G
December 18, 2007
VIA HAND DELIVERY
J. Matthew Mire, Esq.
Town of Vail
75 S. Frontage Road
Vail, Colorado 81657
Re: Arrabelle Documents
Dear Matt:
0
C O M P A N Y
D E V E L O P M E N T
FILE COPY
Enclosed are original counterparts of the following documents executed on behalf of Arrabelle at
Vail Square, LLC and/or The Vail Corporation, as applicable (the "Vail Entities"):
Documents to be Executed
1. Grant of Easement (Public Pedestrian Access) (1 original)
2. Grant of Easement (Public Turnaround Access) (1 original)
3. Loading/Delivery Easement Agreement (1 original)
4. First Amendment and Supplement to Core Site License Agreement (1 original with
signature block for Lionshead Centre and 1 original without signature block for
Lionshead Centre; please sign both)
5. Pedestrian/Bicycle Access Easement Agreement (1 original)
6. Kiosk License Agreement (Mountain Operations) (2 originals)
7. Second Amendment to Core Site Development Agreement (1 original)
8. Skier Drop-Off Easement Agreement (1 original)
9. Developer Improvement Agreement (1 original)
Please proceed to have the enclosed documents duly executed and acknowledged on behalf of
the Town of Vail (the "Town") as and where applicable. The dates of the documents (but not the
notaries) are to be left blank for the time being. The documents will be dated as of the time of
the applicable recordings. Following the Town's due execution, please have the documents
returned to the undersigned for recording, if applicable.
VAIL RESORTS
Vail Resorts Development Company • 137 Benchmark Road • Post Office Box 959 • Avon, Colorado 81620-0959 • (970) 845-2535 • fax (970) 845-2555 • www.vrdc.com
Vail • Beaver Creek" • Breckenridge Keystone" • Heavenly'
Arrowhead" • Bachelor Gulch" • Red Sky Ranch" Jackson Hole Golf and Tennis Club"' tJ
VAIL R ESORTS-
DEVELOPMENT COMPANY
The documents delivered pursuant to this transmittal also include letters of credit issued by Bank
of America, N.A., to the Town as beneficiary in the respective amounts of $4,083,743 and
$1,011,000 (the "Letters of Credit") for your review.
As the legal delivery by the Vail Entities of the documents transmitted hereby, including the
Letters of Credit (which the Vail Entities are delivering on behalf of their issuer), is conditioned
upon and subject to the issuance of the requisite temporary certificate(s) of occupancy for the
Arrabelle project, all documents delivered pursuant to this transmittal shall be returned to the
undersigned until such issuance. Upon the issuance of the requisite temporary certificate(s) of
occupancy, the undersigned shall arrange for the documents to be properly recorded, if
applicable. Recorded originals will be returned to you following recordation, along with a copy
any unrecorded documents. In addition, originals of the Skier Drop-Off Easement and the
Letters of Credit shall be returned to you to be held by the Town in accordance with the Second
Amendment to Core Site Development Agreement and the Developer Improvement Agreement.
Please call the undersigned directly at (970)331-1898 once signing is complete so that pick-up of
the above documents can be arranged.
Very truly yours,
qL_vt~
Gerry A old
on behalf of
Vail Resorts Development Company,
acting for Arrabelle at Vail Square, LLC
and The Vail Corporation
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• o FILE
COPY
83. PUBLIC TURNAROUND ACCESS
GRANT OF EASEMENT
(PUBLIC TURNAROUND ACCESS)
ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company
("AVS"), whose street address is c/o Vail Resorts Development Company, 137 Benchmark
Road, Avon, Colorado 81620, for good and valuable consideration, in hand paid or received,
hereby grants and conveys to 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 West, Vail, Colorado 81.657, as a public dedication, and
subject to the terms and provisions set forth herein, an easement for the use of the public (the
"Easement") upon, across and over the surface of certain real property in the County of Eagle,
State of Colorado, described on Exhibit A attached hereto and incorporated herein by this
reference (the "Servient Estate"), which Easement is hereby made for the sole purpose of
allowing access across and over the surface of the Servient Estate to permit egress from and
ingress back to the public right-of-way of Lionshead Place (which is situate within the Town) by
vehicular traffic. The Easement is intended to and, as its sole purpose and (without limitation)
subject to the "Use Prohibitions" set forth hereinafter, shall allow for public turnaround access in
furtherance of the effective use of the public right-of-way of Lionshead Place, since Lionshead
Place, as presently configured, routes vehicular traffic into the Servient Estate, with vehicular
access in the other direction being feasible only by returning from the Servient Estate. A general
depiction of the Servient Estate as currently developed is attached for illustrative purposes as
Exhibit B hereto and incorporated herein by this reference.
The Easement shall remain in effect so long as, and only so long as, such return
access from the Servient Estate is necessary to effectuate two-way surface vehicular access
within Lionshead Place as aforesaid. AVS shall have and retain the right to execute and record a
further written instrument, with the joinder of the Town, confirming and establishing the
termination and extinguishment of the Easement and this instrument when the Easement is no
longer necessary for this purpose. AVS may also otherwise terminate or modify the Easement
and this instrument by further recorded instrument with the written consent and joinder of the
Town. Only the Town will have rights under this instrument to enforce the Easement, and any
purported assignment or transfer of any such rights shall be null and void ab initio at AVS'
election.
The Easement shall be non-exclusive, and AVS shall have and retain the right to
use and enjoy the Servient Estate for any uses and purposes that are not materially inconsistent
with the use and enjoyment of such public turnaround access. AVS shall specifically have and
retain, without limitation, for the benefit of AVS and its designees and successors in interest, and
their respective contractors, agents, licensees and invitees, the rights to construct, install, modify,
replace, maintain, repair, use and enjoy access, streetscape, utilities and other improvements,
whether surface or subterranean improvements, upon, above, over, across and under the Servient
649851.7 RCFISH
Estate, including, without limitation, both surface and underground building improvements (but
excluding any above-grade buildings or other surface improvements that are not approved by the
Town and that would materially impede vehicular turnaround access pursuant to the Easement).
Subject to the "Exercise Limitations" hereinafter set forth, these retained rights will benefit the
real property presently owned by AVS and/or The Vail Corporation, an affiliate of AVS, and
legally described as Lots 1, 2 and 3, Lionshead Sixth Filing, according to the recorded plat
thereof (the Servient Estate being a part of said Lot 1), and any and all improvements developed
thereon and uses made thereof from time to time (the "Vail Resorts Property"). As part of these
retained rights, AVS will be entitled to reasonably regulate the use and enjoyment of the
Easement in order to prevent any resulting material impairment of the use and enjoyment of
these retained rights for the benefit of the Vail Resorts Property, or any harm, damage or loss to
the Vail Resorts Property or any parties or interests related thereto, and may specifically regulate
access through any portions of the Servient Estate from time to time in the ordinary course of
undertaking any maintenance, repairs, replacements, alterations, modifications or additions for
improvements within or under the Servient Estate, or as otherwise reasonably necessary for Vail
Resorts Property operations. However, the exercise of any of the foregoing retained rights may
not materially interfere with the Easement by precluding the Easement's effective use for its
intended purpose, and such use will be preserved on an ongoing basis. AVS may provide a
reasonable temporary alternative to the Easement for turnaround access from time to time if
given Grantee's approval prior to any material interference with the Easement use as aforesaid.
The Easement shall be for and permit the use of the Servient Estate only for
turnaround access as aforesaid; without in any way impairing this general limitation on the
Irw Easement's scope, the use of the Servient Estate pursuant to the Easement for any loading or
unloading of passengers, supplies, goods or other materials, or any other use that entails the
parking or stopping of vehicles, is specifically prohibited (the "Use Prohibitions"). AVS shall
have the right to institute such regulations, measures and practices as AVS may deem necessary
or appropriate from time to time in order to enforce these Use Prohibitions, as well as preventing
any other uses or activities outside of the Easement's scope, provided again there is no resulting
preclusion of the effective use of the Easement on an ongoing basis.
At AVS' election AVS may establish a specific metes and bounds legal
description for the Servient Estate by the recording of an amendment or supplement to this
instrument which is executed by AVS and the Town. Upon AVS' request, the Town will
promptly join in and execute any such amendment or supplement. Any such amendment or
supplement may be executed and delivered on behalf of the Town by the Town Manager, after
consultation with the Town Attorney, and without any authorizing action by Town Council or
any other agency of the Town.
Notwithstanding any transfer or conveyance of any ownership interests in any
portion of the Vail Resorts Property other than the Servient Estate, the retained and other rights
of AVS arising under this instrument shall not pass with title to the interests transferred or
conveyed, and may be exercised only by AVS and its successors in the ownership of the Servient
Estate, and their designees for that purpose from time to time, except to the extent any such
rights, in whole or in part, are expressly assigned of record from time to time, and with any
exercise of rights pursuant thereto to be subject to the terms of the assignment. Any such
assignment may be non-exclusive whereby the assignor also retains rights of exercise. Any such
649651.7 RCFISH 2
E
assignment may be made, without limitation, to any owners association formed with powers of
governance in connection with the Vail Resorts Property or any portion thereof, or to any
metropolitan district formed under Colorado law with jurisdiction over the Vail Resorts Property
or any portion thereof. (The provisions of this paragraph constitute the "Exercise Limitations"
previously referenced herein.) References herein to "AVS" shall include any such successor or
other party holding the applicable rights of AVS from time to time.
This instrument shall be governed by and construed in accordance with the laws
of the State of Colorado.
[Balance of page intentionally left blank]
649851.7 RCFISH
I
E
IN WITNESS WHEREOF, AVS has made this Grant of Easement (Public
Turnaround Access) as of the day of , 20-.
ARRABELLE AT VAIL SQUARE, LLC,
a Colorado limited liability company
Ap ed as to Form:
e at Departinent
.Vail Rrrt 6 -
BY' N~~gRC0T1N1N„~~
Na
STATE OF COLORADO
COUNTY OF~q
ss:
By: Vail Resorts Development Company,
a Colorado corporation,
as Managing Member
By.
'-Keith Fernandez,
President and COO
The foregoing instrument was acknowledged before me this L3 day of
hCCe , 20q7, by Keith Fernandez as President and COO of Vail Resorts
Development Company, a Colorado corporation, as Managing Member of ARRABELLE AT
VAIL SQUARE, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: 1 .-l y ^ D
CUNN/ti Notary Public
[Acceptance of Town follows on next page]
G •o
~jiC01111~pp E~4es OUt4~
649851 7 RCFISH 4
Acceptance of Town of Vail
The Town hereby accepts the dedication of the Easement pursuant to this
instrument and agrees that it shall be bound by and subject to the terms hereof.
TOWN OF VAIL, a municipal corporation duly
organized and existing under and by virtue of the
laws of the State of Colorado
i
Y:
Stanley B. temler, Town Manager
ATTE T:
Lore ei D aldson, Town Clerk
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE
The foregoing instrument was acknowledged before me this day of
200, 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: ~oel.=42010_
NA-n
Not
P %J
649851.7 RCFISH 5
I
EXHIBIT A
Description of Servient Estate
Those portions of Tract G, Vail/Lionshead Third Filing, according to the recorded plat thereof,
which from time to time constitute a vehicular access way ("Tract G");
County of Eagle,
State of Colorado; and
Those portions of Lot 1, Lionshead Sixth Filing, according to the recorded plat thereof ("Lot V),
and those portions of Tract C, Lionshead Sixth Filing, according to the recorded plat thereof, in
which the Lot 1 owner has access license rights from time to time ("Tract C"), that incorporate
vehicular driveways or access ways connecting with and establishing a continuous means of
vehicular access in conjunction with Tract G, as those driveways and access ways may be
constructed, established and modified from time to time by the owner of Lot l;
County of Eagle,
State of Colorado.
649851.7 RCFISH
A-1
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EXHIBIT B
General Depiction of Servient Estate
[See the attached]
649851.7 RCFISH B-1
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• o FILE
Copy
LOADING/DELIVERY EASEMENT AGREEMENT
THIS LOADING/DELIVERY EASEMENT AGREEMENT (this "Agreement")
is made as of the day of , 200 , by and between ARRABELLE
AT VAIL SQUARE, LLC, a Colorado limited liability company ("Arrabelle LLC"), 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").
RECITALS:
A. Arrabelle LLC has constructed and developed, on the real property legally
described as Lot 1, Lionshead Sixth Filing, according to the recorded plat thereof, County of
Eagle, State of Colorado (the "Arrabelle Site"), a certain mixed-use real estate project under the
trade name "Arrabelle at Vail Square," which project includes residential condominiums; a
hotel/lodge facility; commercial retail uses and facilities, including, without limitation,
restaurants, coffee shops and other eating and drinking establishments; public and recreational
uses and structures, including, without limitation, an outdoor skating rink, open plaza and other
areas allowing for recreational or entertainment activities and amenities, and a ski club and/or
other associations or operations relating to sporting, recreational or outdoor activities; and other
uses, improvements and facilities complementary, supplementary, ancillary, incidental or related
to any of the foregoing facilities and uses (collectively the "Arrabelle Project").
B. Arrabelle LLC has constructed, within and as part of the Arrabelle Project,
a loading/delivery facility with eight (8) loading/delivery bays, the number of which is in excess
of the five (5) bays required for the Arrabelle Project by the Town Code of the Town (the "Town
Code"). Arrabelle LLC has developed this larger loading/delivery facility (the
"Loading/Delivery Facility"), pursuant to the development requirements for the Arrabelle Project
under that certain Core Site Development Agreement dated as of November 8, 2004, made
among the Town, The Vail Corporation, d/b/a Vail Associates, Inc. ("Vail Associates"), and Vail
Reinvestment Authority, and recorded in the real property records for Eagle County, Colorado,
on November 21, 2005, at Reception No. 937604, as amended by the Amendment to Core Site
Development Agreement recorded November 21, 2005, at Reception No. 937605 (together the
"Development Agreement"). The Loading/Delivery Facility is constituted by rooms G-222, G-
222.01 and G-222.02 as generally shown on Arrabelle Project plans prepared by
42/40 Architecture, and as more specifically delineated and depicted for purposes of this
Agreement on Exhibit A attached hereto and incorporated herein by this reference. References
herein to the Arrabelle Project will include the Loading/Delivery Facility.
C. Pursuant to the Development Agreement, the Town and Arrabelle LLC, as
the successor to Vail Associates, are mutually bound to enter into an easement whereby the
Loading/Delivery Facility will be made available for public use, and in turn the Town will bear
an equitable share of the operating, maintenance and repair costs attributable to the
Loading/Delivery Facility. The parties have mutually determined to make and enter into this
648049.7 RUISH
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Agreement to discharge and satisfy those public easement and related requirements under the
Development Agreement.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. Grant of Easement; Term.
(a) Arrabelle LLC hereby grants, conveys and dedicates to the Town,
and the Town hereby accepts, for the use of the public, a non-exclusive easement for the use and
enjoyment of the Loading/Delivery Facility for loading/delivery operations and functions, such
easement to be governed by, in accordance with and subject to the other terms and provisions of
this Agreement (the "Easement").
(b) The Easement shall include non-exclusive rights to use applicable
vehicular access ways within the Arrabelle Project to enter and exit the Loading/Delivery
Facility (the "Vehicular Ways"), and to use service corridors and similar pedestrian access ways
within the Arrabelle Project for Public Users (hereinafter defined) to transport goods, supplies or
materials by hand truck or other customary means of manual delivery; provided, however, that
such access may be limited to routes designated and regulated as to use by Arrabelle LLC
pursuant to its managerial powers and functions under the other provisions of this Agreement
(the routes so designated from time to time are sometimes referred to herein as the "Easement
Access Ways"). Arrabelle LLC will not be obligated to provide any delivery or distribution
services to the Public Users. In addition, Arrabelle LLC may permanently allocate two of the
loading/delivery bays to trash disposal and recycling facilities used in Vail Resorts Operations
(as hereinafter defined), and the bays so allocated will not be subject to the Easement; similarly,
the parking spaces at the southerly end of the Loading/Delivery Facility will not be subject to the
Easement.
(c) The Easement will be in force and effect as of the date hereof, and
will continue in effect so long as the Loading/Delivery Facility continues to be operated by
Arrabelle LLC or any successor Loading/Delivery Owner (as hereinafter defined). In the event
those operations ever become the subject of a permanent cessation, the Easement shall terminate
and be of no further force or effect, and the Town, upon the request of Arrabelle LLC, shall
execute and deliver a recordable acknowledgment and confirmation of such termination.
2. Limitations on Easement Scone. The Easement will be for the purpose of
and limited in scope to accommodating bona fide commercial loading/delivery functions in the
ordinary course of business for the transport and distribution of goods, supplies or materials to be
sold or used by retail businesses conducted in the Lionshead area of Vail, Colorado (the "Scope
Limitation"). In addition, the Easement shall be non-exclusive, and Arrabelle LLC, for itself and
its affiliates, invitees and designees, shall retain all rights to use and enjoy the Loading/Delivery
Facility and the Easement Access Ways for all purposes that are not materially inconsistent with
the use and enjoyment of the Easement by any member of the public using the Easement
pursuant to its grant to the Town hereunder (collectively the "Public User(s)") in accordance
with the other terms of this Agreement. Without limitation on the foregoing, Arrabelle LLC will
specifically retain rights for the use and enjoyment of the Loading/Delivery Facility for the
648049.7 RUISH 2
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benefit of Arrabelle LLC and its affiliates (including, without limitation, Vail Associates), and
their tenants, licensees and invitees, in connection with the Arrabelle Project and all
development, business and other activities, operations and uses therein, and also the
development, business and other activities, operations and uses on and of Vail Mountain for
skiing, recreational and other purposes, and related commercial or ancillary or incidental
operations or uses (collectively the "Vail Resorts Operations"). Parties engaged in the use and
enjoyment of the Loading/Delivery Facility in relation to Vail Resorts Operations are sometimes
referred to hereinafter as "Vail Resorts Users."
3. Maintenance. So long as the Easement remains in effect, Arrabelle LLC
from time to time, in the ordinary course of Arrabelle Project operations, will undertake such
maintenance, repairs and replacements for the Loading/Delivery Facility and the Easement
Access Ways as are necessary to maintain the same in good condition and repair, subject to
ordinary wear and tear that do not materially impair the function or utility of the
Loading/Delivery Facility or the Easement Access Ways. The foregoing shall not be construed
to limit Arrabelle LLC's rights of recourse against any Public User that causes any damage to the
Loading/Delivery Facility, the Easement Access Ways, or any other portions of the Arrabelle
Project that give rise to any maintenance, repairs or replacements.
4. Management and Regulations.
(a) Arrabelle LLC will have managerial control and authority over the
Loading/Delivery Facility and the Easement Access Ways, and any exercise thereof in Arrabelle
LLC's ordinary business judgment will be binding upon the Town and the Public Users
(specifically subject, however, to the "Priority Limitation" hereinafter established). Without
limitation on the foregoing, the use and enjoyment of the Easement will be subject to such
limitations, restrictions, regulations, rules and procedures, and related remedies, as Arrabelle
LLC may impose, in its ordinary business judgment (collectively the "Regulations"), in
furtherance of the following purposes:
(i) To enforce material compliance with the Scope Limitation;
(ii) To protect against any personal injury or property damage
(including any damage to the Arrabelle Project or interests therein), or any breach or
violation of any laws applicable to the Arrabelle Project or the Loading/Delivery Facility;
(iii) To prevent or minimize any interference with or disruption
of the use and enjoyment of the Arrabelle Project, in the ordinary course of its occupancy
and operation for its intended purposes, that may arise from the exercise of the Easement;
and
(iv) To otherwise regulate the possession, use, and enjoyment
of the Loading/Delivery Facility in the ordinary course of its operation and to integrate
and harmonize its operation with the operation of the balance of the Arrabelle Project and
other Vail Resorts Operations.
(b) Actions and measures by Arrabelle LLC as part of or in
furtherance of the Regulations and their implementation and enforcement and in otherwise
648049.7 RCFISH 3
managing the Loading/Delivery Facility and Easement Access Ways may include, at Arrabelle
LLC's election and without limitation, any of the following, and the determination of whether
any such actions or measures are proper may be made by Arrabelle LLC in its ordinary business
judgment:
(i) The engagement of a dockmaster and security and other on-
site personnel (which may be engaged on a full-time or part-time basis for the
Loading/Delivery Facility) to direct, supervise and administer the use of the
Loading/Delivery Facility ("Loading/Delivery Personnel").
(ii) The closure of the Loading/Delivery Facility and/or
Easement Access Ways from time to time, in whole or in part, and the imposition of
traffic controls and other limitations and measures regulating their use, as necessary to
complete maintenance, repairs or replacements for the Loading/Delivery Facility or
Easement Access Ways or other portions of the Arrabelle Project in the ordinary course
of operations, or to remedy any fire or other casualty loss, or to avoid or mitigate any
pending risk to human health or safety or property damage, or any breach or violation of
applicable laws, or to prevent any stacking of vehicles or traffic congestion within the
Loading/Delivery Facility or overburdening of its capacities, or to otherwise facilitate the
safe, efficient use of the Loading/Delivery Facility.
(iii) The posting of notices or other forms of publication in
furtherance of making disclosure to Public Users and other parties of any Regulations and
the available means to enforce the same.
(iv) The installation of a gate or coiling door that may be closed
in the event of a fire alarm or other emergency and during hours that the
Loading/Delivery Facility is not operating for purposes of precluding or controlling
access to the Loading/Delivery Facility and/or the Vehicular Ways. Other security
devices may also be employed to monitor the premises during non-operating hours. (Any
such door or gate or security devices that specifically control or regulate access for the
Loading/Delivery Facility will be deemed to constitute part of the Loading/Delivery
Facility, except for purposes of initial construction and installation).
(v) The exclusion or eviction from the Loading/Delivery
Facility of any Public User whose use of the Loading/Delivery Facility would violate the
Scope Limitation or would pose a material risk or threat to human health or safety or to
property interests, or who historically has committed any material violations of any
Regulations that have been disclosed as provided in subparagraph (iii) above. Any Public
User that may be excluded from the Loading/Delivery Facility in accordance with the
foregoing provisions may be regarded by Arrabelle LLC as a trespasser, and Arrabelle
LLC will have rights against the pertinent Public User to exercise such remedies as may
ordinarily be available at law or equity for a trespass. Grounds for exclusion on the basis
of a threat to human health or safety or property interests may include, without limitation,
the transport by the applicable Public User of any hazardous or toxic wastes or substances
in any concentration, composition or quantity which is in violation of any prohibitions,
limitations, standards or guidelines under any applicable local, state or federal laws
648049.7 RCFISH 4
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pertaining to protection of the environment or human health, or regulations promulgated
thereunder. Arrabelle LLC at its election will have rights to inspect the load carried by
any Public User, within or before that party's entry into the Loading/Delivery Facility, to
determine whether such load warrants the exclusion of that Public User from the
Loading/Delivery Facility.
(vi) The delegation, in whole or in part, and exclusively or non-
exclusively, of Arrabelle LLC's managerial and other rights and functions under this
Agreement, along with related obligations, if any, and the delegatee will be authorized to
act in the place and stead of Arrabelle LLC in that regard. Any such delegatee will not be
acting as a servant or agent of Arrabelle LLC, and Arrabelle LLC shall not be vicariously
liable for any actions or omissions of any such delegatee in relation to its delegated
functions. Any such delegatees, and any parties engaged by, through or under them, will
benefit from and enjoy the limitations on liability under this Agreement in favor of
Arrabelle LLC. Parties to whom such a delegation may be made may include, without
limitation, Vail Associates or any other affiliates of Arrabelle LLC involved in Vail
Resorts Operations, independent contractors, and also any owners' association as
referenced in paragraph 7(b) below.
(c) In establishing any Regulations, Arrabelle LLC agrees that it will
consult in good faith with and give due consideration to input from the Town, and also agrees
that the Regulations will be generally uniform in nature and not unfairly discriminate between
Arrabelle LLC (and its invitees and designees) and the Public Users in the proper use and
enjoyment of the Loading/Delivery Facility. In that regard, Arrabelle LLC specifically
acknowledges and agrees that the use of the Loading/Delivery Facility will generally be on a
"first come, first served" basis, without the establishment of any reservation system that gives
Vail Resorts Users priority over Public Users (the "Priority Limitation"). Arrabelle LLC from
time to time, in the ordinary course of its managerial functions, will also establish schedules and
projections for maintenance, repairs and replacements within or pertaining to the
Loading/Delivery Facility, and again will consult in good faith with the Town and give due
consideration to the Town's input in that regard.
5. Standards of Conduct and Liability.
(a) Public Users will be bound by the duty of ordinary care, to be
applied in accordance with good prevailing commercial practices, in the use and enjoyment of
the Easement and the Loading/Delivery Facility, and may be held liable, in accordance with
generally prevailing standards and rules of tort law, for any breach of this duty, including any
negligent, grossly negligent, reckless, willful or intentional misconduct. Without limitation on
the generality of the foregoing, this duty of care will include compliance with the Regulations
adopted from time to time, provided there is adequate disclosure thereof.
(b) The granting of the Easement will not cause Arrabelle LLC to be
deemed or regarded as a public carrier or common carrier, or to be subject to the standards of
care or liabilities legally imposed on such carriers, or otherwise give rise to the imposition upon
Arrabelle LLC of any special standard of care in the operation of the Loading/Delivery Facility.
The Town, for itself and the Public Users, agrees that Arrabelle LLC will not have, and hereby
648049.7 RCFISH 5
holds Arrabelle LLC harmless and waives any claim for, any liability for any personal injury or
property damage or loss (including, without limitation, any lost or stolen goods, supplies or
materials) arising in connection with the operation of the Loading/Delivery Facility, unless due
to any intentional tortious misconduct of Arrabelle LLC. Arrabelle LLC and its affiliates and
delegatees will have no duty to provide or enforce security for the use and operation of the
Loading/Delivery Facility and no liability for any failure of security. Arrabelle LLC may post
notices on the perimeter of and/or within the Loading/Delivery Facility disclaiming any liability
or responsibility of Arrabelle LLC for any personal injury or property damage or loss occasioned
in connection with the use and enjoyment of the Loading/Delivery Facility, and such disclaimers
will be fully binding upon all Public Users (but any failure to post such notices will not limit the
effect of the foregoing provisions). Without limitation on the generality of the foregoing, the
Town specifically agrees that Arrabelle LLC in its ordinary business judgment may determine
the proper level of supervision and control to be provided for the operation of the
Loading/Delivery Facility from time to time, and that Arrabelle LLC will not be responsible or
liable for any personal injury, loss or damages occasioned by or in connection with any exercise
of that judgment. The Regulations will be adopted and imposed by Arrabelle LLC solely for its
own benefit and the benefit of its affiliates and delegatees, and the employees, agents and
contractors of any of them, and Arrabelle LLC will have no obligation to the Town or any Public
User to enforce the Regulations, and will have no liability for any failure of enforcement, or
otherwise for any failure to exercise managerial control or authority.
6. Cost Sharing.
/ (a) The Town shall bear 25% (the "Town Share") of the costs incurred
from time to time by Arrabelle LLC, from and after the date that the Loading/Delivery Facility is
generally open to Public Users and during the term of the Easement, in connection with
operations, management, maintenance, repairs and replacements of and for the Loading/Delivery
Facility from time to time (the "Operating Costs"). The Operating Costs shall be determined in
accordance with the ordinary accounting and management practices prevailing from time to time
for the operation of the Arrabelle Project (the "Accounting Standards"), and will include, without
limitation, utilities costs, the employment and labor costs for Loading/Delivery Personnel,
contract sums owing to contractors, suppliers, and other third parties engaged in connection with
operations, management, maintenance, repairs or replacements for the Loading/Delivery Facility,
and an attribution to the Loading/Delivery Facility of a portion of the general management and
overhead costs incurred for the Arrabelle Project, and also premiums for property, liability,
workmen's compensation and other insurance coverages maintained in connection with the
Arrabelle Project. However, the Town will also bear 100% of such insurance premiums, if any,
that may be attributable to any incremental insurance risks resulting from the grant of the
Easement and its public nature, as determined by reference to bona fide insurance premium
quotes provided by the insurance carriers furnishing the applicable coverages for the Arrabelle
Project. The Operating Costs may include capital repair and replacement costs for
improvements, facilities and equipment constituting the perimeter of or located within the
Loading/Delivery Facility, or providing service to the Loading/Delivery Facility, and also
maintenance and capital repair and replacement costs for the related service elevator facilities
and the access corridors thereto that are part of the Easement Access Ways from time to time, but
will not include capital repair and replacement costs for the structural components of the
Arrabelle Project outside of and enclosing the Loading/Delivery Facility.
648049.7 RCPISH 6
0 0
(b) The Town Share of Operating Costs will be determined and paid in
accordance with the following procedures:
(i) Within sixty (60) days after the end of calendar year 2008,
Arrabelle LLC will account for and determine, pursuant to the Accounting Standards, the
Operating Costs for the period between the date of this Agreement and the end of
calendar year 2008, and the Town will pay the Town Share thereof within thirty (30) days
after Arrabelle LLC has furnished the accounting to the Town by notice given hereunder.
Arrabelle LLC will consult in good faith with the Town and give due consideration to the
Town's input in completing that accounting.
(ii) Within that same 60-day period, Arrabelle LLC, again in
good faith consultation with the Town, and with due consideration of the Town's input,
will adopt and give the Town notice of an annual budget of estimated Operating Costs for
the calendar year 2009 prepared pursuant to the Accounting Standards, which budget will
be based upon an annualization of the cost accounting for the period expiring at the end
of calendar year 2008, but subject to appropriate adjustments to take into account (A) the
effect of any "start-up" period during which Operating Costs were incurred in relatively
low amounts during initial operating periods for the Loading/Delivery Facility;
(B) market inflation and other economic factors giving rise to prospective increases in
Operating Costs; (C) maintenance, repair and replacement schedules established pursuant
to paragraph 4(c) above; and (D) other bona fide cost factors that Vail Associates
anticipates. The Town shall pay Arrabelle LLC, on the first day of the calendar month
following the establishment and notice to the Town of that budget, and on the first day of
each calendar month thereafter within the year 2009, an amount equal to 1/12th of the
Town Share of the total amount of the annual budgeted Operating Costs; provided,
however, that with the first monthly installment, the Town shall also include payment of
the monthly amount for each of the calendar months within the year 2009 that have
already passed. Within sixty (60) days after the end of 2009, Arrabelle LLC shall prepare
and deliver to the Town, in accordance with the notice provisions hereunder, a
reconciliation statement of the actual Operating Costs for the year 2009 and the Town
Share thereof, together with a comparison of the same to the estimated payments of
Operating Costs made by the Town for 2009. Within 30 days after the reconciliation
statement is delivered to the Town, an adjustment shall be made to account for any
difference between the Town Share of the actual Operating Costs and the estimated
payments made by the Town: if the Town has overpaid the amount of the Town Share of
actual Operating Costs, Arrabelle LLC shall reimburse the overpayment to the Town,
without interest, within that 30-day period; conversely, if the Town has underpaid the
Town Share of the actual Operating Costs, the Town shall pay the amount of such
underpayment to Arrabelle LLC within that 30-day period.
(iii) The foregoing budgeting, monthly payment and
reconciliation provisions shall be further applied and binding upon the parties for each
year within the term of this Agreement following calendar year 2009, and for purposes of
that application, references in the foregoing provisions to "2009" shall be deemed
replaced by references to the particular calendar year in question. If the last year within
648049.7 RCFISH 7
0 0
the term of this Agreement proves to be a fractional calendar year, then the Town's
obligations therefor will be prorated and adjusted appropriately.
(iv) In the event Arrabelle LLC incurs any material capital
replacement or other capital charges or any other extraordinary cost items in the course of
Loading/Delivery Facility operations that are not anticipated within the scope of the
applicable annual budget (e.g., damage to the Loading/Delivery Facility caused by any
Public User), then the Town Share of the cost of those extraordinary items may be
invoiced by Arrabelle LLC to the Town, in accordance with the Accounting Standards,
and any such additional invoice will be due and payable within thirty (30) days after it is
delivered to the Town in accordance with the notice provisions hereunder, such invoice to
be accompanied by an accounting and supporting documentation to substantiate the
amount invoiced in accordance with the Accounting Standards. However, any such
extraordinary cost item which may be the subject of a reimbursement will be reduced by
any insurance proceeds and/or recoveries from any culpable third party which are
applicable to the particular cost item and which have been received by Arrabelle LLC,
and to the extent any such insurance proceeds or recoveries are received by Arrabelle
LLC after the item is invoiced, then thereafter the Town will receive appropriate
reimbursement and/or credit for those sums subsequently received. Invoicing of
extraordinary items pursuant to the provisions of this paragraph 6(b)(iv) will be
cumulative with and in addition to the monthly budgeted installments of Operating Costs
and year-end reconciliations under paragraphs 6(b)(ii) and 6(b)(iii) above.
(c) The Town's payment obligations for the Town Share of Operating
Costs under the foregoing provisions of this paragraph 6 are sometimes referred to herein as the
"Operating Reimbursement(s)"). If any Operating Reimbursement is not paid when due, it shall
thereafter bear interest until paid at an annual interest rate equal to five percent (5%) plus the
prime interest rate as published from time to time by The Wall Street Journal. At any time that
an Operating Reimbursement is delinquent, i.e., remains unpaid after its due date, Arrabelle LLC
at its election may suspend the use and enjoyment of the Easement, in whole or in part as
Arrabelle LLC may elect, until the pertinent delinquency and all interest accrued thereon are paid
in full. This remedy of suspension shall be cumulative with and without limitation upon the
other rights and remedies available to Arrabelle LLC at law or equity for the enforcement of the
payment obligations for the Operating Reimbursements, including, without limitation, an
appropriate collection action.
7. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of
(i) the Town and all Public Users claiming pursuant to the Easement grant made herein to the
Town (and all Public Users, by their use and enjoyment of the Easement, will be deemed to have
accepted and agreed to the provisions hereof), and (ii) Arrabelle LLC and its successors in
interest to the fee ownership interests in and to the Loading/Delivery Facility and the Easement
Access Ways (the, owner of those fee interests from time to time being referred to herein as the
"Loading/Delivery Owner"). No Loading/Delivery Owner shall have any liability for
obligations, if any, accruing under this Agreement following the term of the ownership of that
Loading/Delivery Owner. The owners of other interests in the Arrabelle Project (i.e., those
648049.7 RUISH 8
owners other than the Loading/Delivery Owner) will not have any liability for obligations arising
hereunder, if any, of the Loading/Delivery Owner, and their ownership interests will not be
encumbered by the Easement or this Agreement. In addition, any Loading/Delivery Owner may
delegate and assign all or part of its rights and obligations hereunder to any owners association
formed with powers of governance in connection with the Arrabelle Project, and such association
shall become solely responsible for those obligations to the extent the association assumes such
obligations (and to the extent of any such assignment and/or delegation, the association shall
constitute a Loading/Delivery Owner for purposes of the other provisions hereof). The rights to
enforce the Easement and the other terms of this Agreement in favor of the Town shall be and
remain vested solely in the Town. The Town may not assign or delegate any of the Town's
rights or obligations hereunder, and at the election of the Loading/Delivery Owner, any
purported assignment or delegation by the Town shall be null and void ab initio and/or constitute
a breach by the Town of this Agreement; provided, however, that the Town may delegate any of
its obligations hereunder to any general improvement district or similar public authority
established under the Town's jurisdiction and control (and the Town shall remain primarily
liable for the obligations delegated).
(b) In the event that Arrabelle LLC ever conveys all of its interests in
and to the Loading/Delivery Facility, whether to one of its affiliates or a non-affiliate third party,
Arrabelle LLC and its affiliates (including Vail Associates), independently of but along with that
transferee and any further successors to ownership of the Loading/Delivery Facility, will retain
the rights and interests established hereunder for the use and enjoyment of the Loading/Delivery
Facility for the benefit of Vail Resorts Operations that they conduct thereafter (and the "Vail
Resorts Operations" will also continue to include Arrabelle Project operations by third-party
successors). Upon any such conveyance, Arrabelle LLC and its affiliates shall be deemed to
have reserved a perpetual easement in gross in and to the Loading/Delivery Facility and the
Easement Access Ways for purposes of exercising those retained rights and interests. Those
reserved rights and interests of Arrabelle LLC and its affiliates and the interests of the successor
Loading/Delivery Owner with respect to Vail Resorts Operations may be modified between them
by subsequent recorded agreement between Arrabelle LLC (and/or its affiliates) and the
successor Loading/Delivery Owner.
(c) For purposes of this Agreement, the "affiliates" of Arrabelle LLC
shall mean any corporation or other entity which, by virtue of direct or indirect majority
ownership interests, is controlled by, controls, or is under common control with Arrabelle LLC
or Vail Associates. The affiliates of Arrabelle LLC (including Vail Associates) shall be express
third-party beneficiaries of the provisions of this Agreement pertaining to Vail Resorts
Operations. Except with respect to the reserved interests in favor of Arrabelle LLC and its
affiliates under paragraph 7(b) above, references herein to "Arrabelle LLC" will include
successor Loading/Delivery Owners in relation to. the ownership, operation and maintenance of
the Loading/Delivery Facility.
8. No Fee Dedication. Nothing herein shall be deemed or construed as a
grant or public dedication of any fee ownership interests in the Loading/Delivery Facility or
Easement Access Ways or other affected portions of the Arrabelle Project, and Arrabelle LLC
shall retain those fee ownership interests in all respects, it being the intention of the parties
hereto that the sole property interest conveyed hereunder is and shall be the easement rights in
648049.7 RCFISH - 9
favor of the Town that constitute the Easement, as the same are governed by the other provisions
hereof.
9. Notices; Business Days. Any notice required or permitted under the terms
of this Agreement between the Town and Arrabelle LLC shall be in writing, may be given by the
parties hereto or such parties' respective legal counsel, and shall be deemed given and received
(i) when hand delivered to the intended recipient, by whatever means; (ii) three (3) business days
after the same is deposited in the United States mails, with adequate postage prepaid, and sent by
registered or certified mail, with return receipt requested; (iii) one (1) business day after the same
is deposited with an overnight courier service of national or international reputation having a
delivery area encompassing the address of the intended recipient, with the delivery charges
prepaid; or (iv) when received via facsimile on the intended recipient's facsimile facilities
accessed by the applicable telephone number set forth below (provided such facsimile delivery
and receipt is confirmed on the facsimile facilities of the noticing party). Any notice under
clause (i), (ii) or (iii) above shall be delivered or mailed, as the case may be, to the appropriate
address set forth below.
If to Arrabelle LLC:
c/o The Arrabelle at Vail Square
Post Office Box 7
Intercompany V95
675 Lionshead Place
Vail, Colorado 81657
Attention: Arrabelle Manager
Fax No.: (970) 754-7755
Phone: (970) 754-7781
with a copy to:
c/o Vail Resorts Development Company
Legal Department
Post Office Box 959
137 Benchmark Road
Avon, Colorado 81620
Attention: Legal Department
Fax No.: (970) 845-2555
If to Town:
Town of Vail
75 S. Frontage Road
Vail, Colorado 81657
Attention: Town Manager
Fax No.: (970) 479-2157
648049 7 RUISH 10
with a copy to:
Town of Vail
75 S. Frontage Road
Vail, Colorado 81657
Attention: Town Attorney
Fax No.: (970) 479-2157
Either party may change its addresses and/or fax numbers for notices pursuant to a written notice
which is given in accordance with the terms hereof. As used herein, the term "business day"
shall mean any day other than a Saturday, a Sunday, or a legal holiday for which U.S. mail
service is not provided. Whenever any date or the expiration of any period specified under this
Agreement falls on a day other than a business day, then such date or period shall be deemed
extended to the next succeeding business day thereafter.
10. Severability. In the event any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future laws, the legality, validity and
enforceability of the remaining provisions in this Agreement shall not be affected thereby, and in
lieu of the affected provision there shall be deemed added to this Agreement a substitute
provision that is legal, valid and enforceable and that is as similar as possible in content to the
affected provision. It is generally intended by the parties that this Agreement and its separate
provisions be enforceable to the fullest extent permitted by law.
11. Entire Agreement. This Agreement represents the entire agreement
r between the parties hereto with respect to the subject matter hereof, and all prior or extrinsic
agreements, understandings or negotiations (including, without limitation, the provisions of the
Development Agreement pertaining to the Easement) shall be deemed merged herein.
12. Rules of Construction. The headings which appear in this Agreement are
for purposes of convenience and reference and are not in any sense to be construed as modifying
the paragraphs in which they appear. Each party hereto acknowledges that it has had full and fair
opportunity to review, make comment upon, and negotiate the terms and provisions of this
Agreement, and if there arise any ambiguities in the provisions hereof or any other circumstances
which necessitate judicial interpretation of such provisions, the parties mutually agree that the
provisions shall not be construed against the drafting party, and waive any rule of law which
would otherwise require interpretation or construction against the interests of the drafting party.
References herein to the singular shall include the plural, and to the plural shall include the
singular, and any reference to any one gender shall be deemed to include and be applicable to all
genders. The titles of the paragraphs in this Agreement are for convenience of reference only
and are not intended in any way to define, limit or prescribe the scope or intent of this
Agreement.
13. Waivers and Amendments. No provision of this Agreement may be
waived to any extent unless and except to the extent the waiver is specifically set forth in a
written instrument executed by the party to be bound thereby. This Agreement may be amended
or modified only by an instrument to that effect executed by the Town and Arrabelle LLC. The
G Town shall have and retain the unilateral right, power and authority to act on behalf of the public
648049.7 RCFISH I 1
for effectuating any such waiver, amendment or modification, including, without limitation, any
termination of the Easement. Any such instrument to be made by the Town may be executed on
behalf of the Town by the Town Manager, upon consultation with the Town Attorney, without
any required action of Town Council or other Town agency.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
15. No Third Party Beneficiary. Except with respect to the affiliates of
Arrabelle LLC as provided in paragraph 7 above, and delegatees as provided in
paragraph 4(b)(vi) above, no third party is intended to or shall be a beneficiary of this
Agreement, nor shall any such third party (including, without limitation, any Public User) have
any rights to enforce this Agreement in any respect.
16. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, and which together shall constitute one and the same
agreement.
17. Recording. This Agreement shall be recorded in the real property records
for Eagle County, Colorado.
18. No Joint Venture or Partnership. No form of joint venture or partnership
exists between the Town and Arrabelle LLC, and nothing contained in this Agreement shall be
construed as making the Town and Arrabelle LLC joint venturers or partners.
19. Attorneys' Fees. In the event any legal proceeding arises out of the
subject matter of this Agreement and is prosecuted to final judgment, the prevailing party shall
be entitled to recover from the other all of the prevailing party's costs and expenses incurred in
connection therewith, including reasonable attorneys' fees (and the presiding court will be bound
to make this award).
[Balance of page intentionally left blank]
648049.7 RCFISH 12
IN WITNESS WHEREOF, Arrabelle LLC and the Town have made this
Loading/Delivery Easement Agreement as of the day, month and year first above written.
ARRABELLE AT VAIL SQUARE, LLC, a
Colorado limited liability company
Approved as to Form:
Vail a or egal Department
By: !Name: HENrHBRCUNN NGHAM
Hate: ~g~
STATE OF COLORADO
COUNTY OF
By: Vail Resorts Development Company, a
Colorado corporation, as Managing Member
By: '
Keith Fernandez, President and COO
ss:
The foregoing instrument was acknowledged before me this / 3 day of
Dec , 2002, by Keith Fernandez, as President and COO of Vail Resorts
Development Company, a Colorado corporation, as Managing Member of Arrabelle at Vail
Square, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: /y" e2 ?
YV~a_JA ~ =1 A
Sl.` Notary Public
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648049.7 RCFISH 13
P.O~L
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SEAL.
t
ATTEST:
1
'relei Donaldson, Town Clerk
E
TOWN OF VAIL, a municipal corporation duly
organized and existing under and by virtue of the
laws of the State of Colorado By:_
Stanley B. Zeml r, Town Manager
STATE OF COLORADO )
ss:
COUNTY OF s, 1 )
The foregoing instrument was acknowledged before me this day of
Q c~.•rs~et 200?, 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. gmpission expires:
f~.~.•••Q' ' •Va~~` blic
~o
ST P
646049,7 RCFISH - 14
EXHIBIT A
Arrabelle Project Plans
(see the attached)
The attached drawing depicting the Loading/Delivery Facility constitutes a mark-up overlay on
Drawing No. A100.1, "Lower Garage Floor Plan," The Arrabelle at Vail Square, Project
No. 20826.01, prepared by 4240 Architecture, Architects of Record, and with an ASI 190 issue
date of June 1, 2006.
648049 .7 RCFISH A-1
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FILE COPY
FIRST AMENDMENT AND SUPPLEMENT TO CORE SITE LICENSE AGREEMENT
THIS FIRST AMENDMENT AND SUPPLEMENT TO CORE SITE LICENSE
AGREEMENT (this "Amendment") is made as of the day of , 200, by
and between 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"); THE VAIL CORPORATION,
D/B/A VAIL ASSOCIATES, INC., a Colorado corporation ("Vail Associates"); and
ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company ("Arrabelle").
RECITALS:
A. The Town and Vail Associates entered into that certain Core Site License
Agreement dated as of November 21, 2005, and recorded in the real property records of Eagle
County, Colorado (the "Records"), on November 21, 2005, at Reception No. 937673 (the
"Original Agreement"). All capitalized terms used in this Amendment without definition will
have the meanings assigned to them in the Original Agreement.
B. Pursuant to the Original Agreement, the Town granted Vail Associates a license
over portions of Tract C, Lionshead Sixth Filing for the purpose of allowing certain
encroachments of the Core Project into Tract C.
C. Pursuant to that certain Construction Agreement and Easement between Vail
Associates and Lionshead Centre Condominium Association (the "Association") dated as of
July 11, 2005, and recorded in the Records on November 21, 2005, at Reception No. 937624 (the
"Lionshead Centre Agreement"), Vail Associates agreed that in connection with the construction
of the Core Project, Vail Associates would undertake certain improvements on the
"Condominium Property" (as defined in the Lionshead Centre Agreement). Such improvements
included, as more particularly described in the Lionshead Centre Agreement, the construction of
new stairs, planters and snowmelt paver walkways (the "Lionshead Centre Improvements").
D. Arrabelle is Vail Associates' successor-in-interest to and the current owner and
developer of the Core Project.
E. As part of the construction of the Core Project, Arrabelle constructed a stairway
on the easterly boundary of the Core Site which provides access to and from Tract C (the
"Arrabelle Stairway Improvements"). The Arrabelle Stairway Improvements are generally
depicted on the attached Exhibit A and encroach into Tract C in two locations, as depicted on the
attached Exhibit A.
F. In connection with the construction of the Lionshead Centre Improvements, and
as part of the Condominium Property, Arrabelle constructed a stairway along the westerly side of
the north boundary of the Condominium Property which provides access to and from Tract C
(the "Lionshead Centre Stairway Improvements"). The Lionshead Centre Stairway
809321 1 RUISH
Improvements are generally depicted on the attached Exhibit B and encroach into Tract C, as
depicted on the attached Exhibit B.
G. The Town has determined to grant Arrabelle a license to accommodate the
encroachment of the Arrabelle Stairway Improvements into Tract C and to grant the Association
a license to accommodate the encroachment of the Lionshead Centre Stairway Improvements in
Tract C on the terms set forth below.
Amendment
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,
Vail Associates and Arrabelle hereby amend and supplement the Original Agreement as follows:
1. Inclusion of Arrabelle Stairway Improvements. The definition of the term
"Encroachments" under the Original Agreement is hereby modified to include the encroachment
of the Arrabelle Stairway Improvements into Tract.C. The Arrabelle Stairway Improvements
remain the property of Arrabelle.
2. Grant of License to the Association. The Town hereby modifies the original grant
of the License to include a grant of a license to the Association upon, across, over and under
Tract C to permit the encroachment of the Lionshead Centre Stairway Improvements into Tract
C on the same terms as the License is granted in the Original Agreement. The foregoing
supplemental license is referred to in this Amendment as the "Association License" and the term
"License" under the Original Agreement is hereby modified to include the Association License.
The definition of the term "Encroachments" under the Original Agreement is hereby modified to
include the encroachment of the Lionshead Centre Stairway Improvements into Tract C. The
Lionshead Centre Stairway Improvements remain the property of the Association.
3. Maintenance Obligations.
(a) Vail Associates, on behalf of Arrabelle as the present owner of the Core
Project, and pursuant to the exercise of its rights and interests, will undertake such maintenance,
repairs and replacements from time to time as are necessary to keep the Arrabelle Stairway
Improvements and Lionshead Centre Stairway Improvements that encroach into Tract C in good
condition and repair, excepting ordinary wear and tear that do not materially impair function,
utility or appearance. Vail Associates will bear any liabilities incurred with third parties that
result from any breach of the foregoing obligations. Vail Associates may assign and delegate
any or all of these maintenance obligations and liabilities in accordance with the Original
Agreement. Improvement Rights associated with the Lionshead Centre Stairway Improvements
shall run to the benefit of the Association, not Vail Associates or Arrabelle (subject, however, to
the provisions of paragraph 3(b) below).
(b) The foregoing shall not be construed to limit the relative rights and
obligations between Vail Associates and the Association under the Lionshead Centre Agreement,
it being the intent of Vail Associates that such rights and obligations shall remain in force and
effect, and that none of such rights and interests be waived or limited in any respect by the
AW, 16, provisions hereof.
609321.1 RUISH 2
4. Association License Runs with the Condominium Property. The Association
License shall run with the Condominium Property and constitute an appurtenance benefiting the
Condominium Property, and accordingly shall inure to the benefit of the Association (acting on
behalf of the members of the Association); to this end, the Association, acting on behalf of its
constituent members, shall be an express third-party beneficiary of this Amendment for purposes
of the use and enjoyment of the Association License. Conversely, the Association License shall
constitute a burden touching and concerning and running with the ownership of the Licensed
Areas and shall be binding upon the Town and its successors-in interest, if any, in and to the
Licensed Areas.
5. Counterparts. This Amendment may be executed in one or more counterparts,
each of which will constitute an original, and which together will constitute one and the same
agreement.
6. Effect. Except as expressly provided in this Amendment, Original Agreement is
not modified in any way by this Amendment, and will remain in full force and effect.
7. Recordation. This Amendment will be recorded in the Records.
[Balance of page intentionally left blank]
809321.1 RCFISH
E
IN WITNESS WHEREOF, the Town, Vail Associates, Arrabelle and the Association
have made this Amendment as of the day, month and year first above written.
XQp IiI
• w
• L `
ATTEST:
rel Donaldson, Town Clerk
TOWN OF VAIL, a municipal corporation duly
organized and existing under and by virtue of the
laws of the State of Colorado
By:
Stanley B. Zemler, Town Manager
STATE OF COLORADO )
ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this. e day of
200c7, 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.
commission expires
,`t~e`~•1AP"
fFr
coo / d
*5c=f
T • [Signature blocks continue on next page]
809721.1 RCFISH 4
APproVeaastoF our,,: ~epartn-verit
Adrbl e$ a,
vet, .fie ort
N NG
BY = ~ 4tFA'~~ERCY
dame' , l - ~ ~ ~
E
THE VAIL CORPORATION, D/B/A VAIL
ASSOCIATES, INC., a Colorado corporation
By:
Keith Fernandez,
President and COO-VRDC
STATE OF COLORADO
COUNTY OF
ss:
The foregoing instrument was acknowledged before me this 13 day of ec. ,
2007, 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: / /q- O
CUNN~
N~j.•p~6 .pOO
G.
F OF COOP
My Commission Expires 01/14/2009
Notary Public
[Signature blocks continue on next page]
809721.1 RUISH 5
ARRABELLE AT VAIL SQUARE, LLC, a
Colorado limited liability company
,kpproved as to Form artment
o egal Dep By: Vail Resorts Development Company, a
'Vail By.. Colorado corporation, its Managing Member
By.. ~~ERCI}NN GBH
Name:
Date: B
Y• (~J
Keith Fernandez,
President and COO
STATE OF COLORADO )
ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this IS day of D e C
2007, by Keith Fernandez as President and COO of Vail Resorts Development Company, a
Colorado corporation, as Managing Member of Arrabelle at Vail Square, LLC, a Colorado
limited liability company.
WITNESS my hand and official seal.
My commission expires: / -/L/- D C!
TA ~qJ-
"0
•o
9 0 B O%OO-
My commission Expires oU14/m
Notary Public
809321.1 RCFISH 6
EXHIBIT A
Arrabelle Stairway Improvements
See Attached Diagram
L
809321.1 RCFISH A-1
® EXHIBIT "A"
EASEMENT DESCRIPTION
AN ENCROACHMENT EASEMENT LOCATED WITHIN TRACT C, LIONSHEAD SIXTH FILING, ACCORDING TO THE
PLAT RECORDED NOVEMBER 21, 2005 AT RECEPTION No. 937664, TOWN OF VAIL, EAGLE COUNTY, STATE OF
COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF LOT 1, OF SAID LIONSHEAD SIXTH FILING WHENCE AN
EASTERLY ANGLE POINT OF SAID LOT I BEARS S 04°05'53" E A DISTANCE OF 88.38 FEET BEING THE BASIS OF
BEARING FOR THIS DESCRIPTION; THENCE CONTINUING ALONG SAID EASTERLY LINE OF SAID LOT 1,
LIONSHEAD SIXTH FILING S 04°05'53" E A DISTANCE OF 4.53 FEET TO THE TRUE POINT OF BEGINNING;
THENCE DEPARTING SAID EASTERLY LINE OF SAID LOT 1, LIONSHEAD SIXTH FILING THE FOLLOWING FIVE (5)
COURSES:
I ) S 49`05'06" E A DISTANCE OF 5.11 FEET;
2) S 04°05'06" E A DISTANCE OF 6.30 FEET;
3) N 85°54'54" E A DISTANCE OF 1.25 FEET;
4) S 04°05'06" E A DISTANCE OF 10.03 FEET;
5) S 85`'54'54" W A DISTANCE OF 4.86 FEET TO A POINT ON SAID EASTERLY LINE OF SAID LOT 1,
LIONSHEAD SIXTH FILING; THENCE N 04°05'53" W A DISTANCE OF 19.95 FEET TO THE TRUE POINT OF BEGINNING.
SAID PARCEL CONTAINING 78.00 SQUARE FEET MORE OR LESS.
R L ~~SP
BRENT BIGGS PLS No. 27598 /
PREPARED FOR AND ON BEHALF OF
PEAK LAND SURVEYING, INC. `J'~J'~~~✓A~ •LA~
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EXHIBIT "B"
EASEMENT DESCRIPTION
AN ENCROACHMENT EASEMENT LOCATED WITHIN TRACT C, LIONSHEAD SIXTH FILING, ACCORDING TO THE
PLAT RECORDED NOVEMBER 21, 2005 AT RECEPTION No. 937664, TOWN OF VAIL, EAGLE COUNTY, STATE OF
COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT AN ANGLE POINT ALONG THE SOUTHERLY BOUNDARY OF SAID TRACT C, LIONSHEAD SIXTH
FILING, WHENCE THE SOUTHERLY LINE BEARS S 85°54'07" E W DISTANCE OF 203.60 FEET BEING THE BASIS OF
BEARING FOR THIS DESCRIPTION; THENCE CONTINUING ALONG SAID SOUTHERLY LINE OF SAID TRACT C
N 85°54'07" E A DISTANCE OF 34.34 FEET TO 1'HE TRUE POINT OF BEGINNING;
THENCE DEPARTING SAID SOUTHERLY L NE OF SAID TRACT C, LIONSHEAD SIXTH FILING THE FOLLOWING
THREE (3) COURSES:
1) N 03°57'21 " W A DISTANCE OF 2.65 FEET;
2) N 85°58'36" E A DISTANCE OF 14.08 FEET;
3) S 04°01'01 " E A DISTANCE OF 2.63 FEET TO A POINT ON SAID SOUTHERLY LINE OF SAID TRACT C,
LIONSHEAD SIXTH FILING; THENCE S 85°54'07" W ALONG SAID SOUTHERLY LINE OF SAID TRACT C,
LIONSHEAD SIXTH FILING A DISTANCE OF 14.08 FEET TO THE TRUE POINT OF BEGINNING.
SAID PARCEL CONTAINING 37.18 SQUARE FEET MORE OR LESS.
csV^n~~e,
BRENT BIGGS PLS No. 27598
PREPARED FOR AND ON BEHALF OF
PEAK LAND SURVEYING, INC.
JJ •
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FILE COPY
Arrabelle PEDESTRIAN/BICYCLE ACCESS EASEMENT AGREEMENT
ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company, as the
owner of "Lot 1" hereinafter defined, and THE VAIL CORPORATION, a Colorado corporation
("Vail Corp"), as the owner of "Lot 2," "Lot 3" and "Tract B" hereinafter defined (together
"Grantor(s)"), whose address is c/o Vail Resorts Development Company, 137 Benchmark Road,
Avon, Colorado 81620, for good and valuable consideration, in hand paid or received, and
subject to existing matters of record and the terms and provisions set forth herein, hereby grant
and convey to TOWN OF VAIL, a municipal corporation duly organized and existing under and
by virtue of the laws of the State of Colorado ("Grantee"), whose address is 75 South Frontage
Road, Vail, Colorado 81657, as a public dedication, public easements in perpetuity (the
"Easement(s)") as follows:
(i) An easement upon, across and over the Easement Path (as defined below)
for the use and enjoyment of the Easement Path solely as an access way for pedestrian
and bicycle traffic in accordance with and subject to the other provisions of this
Agreement, and specifically excluding any use by motorcycles or other motorized or self-
propelled vehicles of any nature, and skateboards, scooters and similar means of
locomotion (provided that the foregoing is subject to the Grantee's access rights for
maintenance purposes as hereinafter set forth). Permitted pedestrian uses will include
snowshoeing during periods when the Easement Path is snow-covered. Bicycling will
not be permitted under the Easement during the Vail Mountain ski season (hereinafter
defined), and any additional periods when the Easement Path is not readily passable by
bicycle because of snow or ice conditions. The use of this Easement will be further
limited by the Town of Vail rules and regulations generally prevailing from time to time
that govern the use of public pedestrian/bicycle ways. The "Vail Mountain ski season"
shall mean the periods during which Vail Mountain is open to the public as a commercial
downhill skiing/snowboarding operation, and any additional periods during which the
Vail Mountain ski area operator (presently Vail Corp) conducts snow-making activities in
anticipation and furtherance of skiing/snowboarding uses. The "Easement Path" shall
mean that certain improved pedestrian/bicycle path to be constructed that will course
through portions of each of Lots 1, 2 and 3, Lionshead Sixth Filing, according to the
recorded plat thereof ("Lot 1," "Lot 2," and "Lot 3," respectively), and also over portions
of Tract B, Vail/Lionshead, First Filing, according to the recorded plat thereof
("Tract B"), all in the County of Eagle, State of Colorado. The location of the Easement
Path is generally depicted on Exhibit A attached hereto and incorporated herein by this
reference (and is labeled thereon as the `Bike/Pedestrian Easement").
(ii) An easement upon, across and over the "Emergency Egress Way" (defined
below) to permit pedestrian egress from Lot 1 to the Easement Path for pedestrian
JC evacuations in the case of any general emergency, which easement and right of
803580.5 RUISH
E
CI
emergency egress for pedestrian purposes will then continue in either direction on the
Easement Path. The "Emergency Egress Way" shall mean the improved path connection
from the southerly boundary of Lot 1 to the Easement Path to be constructed and located
within Lot 2 and depicted generally again on Exhibit A attached hereto (and labeled
thereon as the "Emergency Egress Easement").
The Easement Path and the Emergency Egress Way are sometimes referred to hereinafter
collectively as the "Easement Improvements." The Easements shall be for the benefit and use of
the public, and shall further be governed by the following terms and provisions:
1. The members of the general public making use of the Easements shall all
constitute invited guests of Grantee for purposes of C.R.S. § 33-41-103, and pursuant thereto and
to the fullest extent the grant of the Easements falls within the scope of C.R.S. § 33-41-103,
Grantors and Grantee mutually intend and agree that the Grantors shall have the full benefit and
protection of the provisions of C.R.S. § 33-41-103 in relation to the Easements. Grantors
specifically acknowledge and agree that no charge shall be levied upon and no revenue shall be
collected for any use and enjoyment of the Easements. References herein to C.R.S. § 33-41-103
shall be deemed to include any subsequent amendments thereto or successor provisions of law.
2. It is acknowledged that the depictions of the Easement Path and the Emergency
Egress Way on Exhibit A hereto constitute only general illustrations of where those
improvements are planned to be located, and in accordance with the mutual intent of the parties,
the Easements shall apply to those improvements in their actual "as built" condition when the
same are completed. At the Grantors' election, the Grantors may establish specific metes-and-
bounds legal descriptions for the locations of the Easement Path and the Emergency Egress Way,
when the same have been constructed and completed, by the recording of an amendment or
supplement to this Agreement which incorporates such metes-and-bounds descriptions and
which is executed by Grantors and Grantee. Upon request, Grantee will promptly join in and
execute any such amendment or supplement. Any such amendment or supplement may be
executed and delivered on behalf of Grantee by the Town Manager of the Town of Vail, after
consultation with the Town Attorney, and without any authorizing action by Town Council or
any other agency of the Town of Vail. The property constituted by the Easement Path and the
Emergency Egress Way and the surface of the land on which they are situated are sometimes
referred to hereinafter as the "Servient Estate" and Lots 1, 2 and 3 and Tract B are sometimes
referred to hereinafter collectively as the "Property."
3. Grantors, for themselves and their successors in interest, hereby reserve the right
to change the location of the Easement Improvements at any time, in whole or in part, provided
that (i) the relocated Easement Improvements shall be of a width and quality commensurate with
the original Easement Improvements, and shall continue to provide a connection between the
"Tract A Path" (hereinafter defined) and the existing path adjoining the northerly boundary of
Lot 2, and also effective emergency egress from Lot 1, (ii) Grantors shall undertake the
construction and completion of the relocated Easement Improvements, and (iii) Grantee shall
have the right to approve the design of the relocated Easement Improvements pursuant to the
Grantee's public design review standards and process of general applicability at the time. As and
when any Easement Improvements are relocated in accordance with the foregoing provisions, the
Servient Estate shall be deemed modified accordingly, such modification to become effective
803580.5 RCFISH 2
upon the recordation in the real property records for Eagle County, Colorado, of an amendment
or supplement to this Agreement executed by Grantors (or the Grantor owning the affected area)
and Grantee and setting forth a depiction and/or legal description of the Servient Estate as so
modified. Upon request, Grantee will promptly join in the execution of such amendment or
supplement. Any such amendment or supplement may be executed and delivered on behalf of
Grantee by the Town Manager of the Town of Vail, after consultation with the Town Attorney,
and without any authorizing action by Town Council or any other agency of the Town of Vail.
4. The Easements shall be non-exclusive, and each Grantor shall have and retain the
right to use the portions of the Servient Estate that it owns for any uses and purposes that are not
inconsistent with the use and enjoyment of the Easement, including, without limitation, the use
and enjoyment of the Servient Estate for access purposes associated with the Property or any
portion thereof, or any other property or properties that Grantors or either of them may designate,
or any other access purposes of Grantors or either of them or their respective designees.
Grantors and each of them shall further have and retain specifically, without limitation, for the
benefit of Grantors and their respective designees and successors in interest, and their respective
contractors, agents, licensees and invitees, the rights to construct, install, modify, replace,
maintain, repair, use and enjoy subterranean and surface access, streetscape, utility, building and
other improvements upon, above, over, across, within and under the Servient Estate (but
excluding above-grade improvements not approved by the Grantee that would materially impede
access pursuant to the Easements). Access will be specifically permitted, again without
limitation, for mountain service vehicles and deliveries, but specifically excluding any
mechanized guest transportation routing vehicles (the "Service Access Uses"), in connection
with skiing and other operations associated with Vail Mountain. The Vail Mountain operator
from time to time, together with the operator's contractors, agents, licensees and invitees, shall
be express beneficiaries of the rights to the Service Access Uses and shall have an easement in
gross therefor. It is expressly intended and shall be that this easement in gross shall not
extinguish or merge with title because such easement in gross and the Servient Estate, or any
portion thereof, are or may be at any time held and owned by the same party. These retained
rights shall not be con trued to limit Grantee's obligations for maintenance, repairs and
replacements as hereinafter set forth.
5. Before undertaking any maintenance, repairs, replacements or other
improvements or work within the Servient Estate that affect the Easement Improvements (other
than (i) the initial construction and completion of the Easement Improvements, and (ii) ordinary
surface sweeping and cleaning):
(a) The applicable Grantor(s) will obtain from the Town a public way permit,
pursuant to Section 8-1-1, et seg., of the Vail Town Code, for undertaking the pertinent
work; provided that Grantee agrees that its issuance of such permit will not be
unreasonably withheld, conditioned or delayed, and that in processing any application for
such a permit, the Grantee will not deviate from its generally prevailing practices to the
detriment of the applicable Grantor(s).
(b) Notwithstanding the foregoing provisions to the contrary, if any need
arises for repairs or replacements to the Easement Improvements that presents an
imminent safety risk and emergency because of a dangerous condition, then at its
807580.5 RCFISH 3
election, and without obligation to do so, the applicable Grantor may enter the Servient
Estate and complete the pertinent repairs or replacements without first obtaining a public
way permit from Grantee if the permit cannot reasonably and practically have been
obtained beforehand. The Grantor will then apply for the permit in accordance with Vail
Town Code Section 8-1-1, et seq., within five (5) days after the commencement of the
emergency work. Before entering the Servient Estate to undertake any such emergency
work, the applicable Grantor shall notify the Grantee and give the Grantee first
opportunity to perform the emergency work, to the extent practicable. So long as the
applicable Grantor provides such notice and opportunity, then within thirty (30) days
after demand (to be made following completion of the emergency work), Grantee will
reimburse the applicable Grantor for its out-of-pocket costs incurred in undertaking any
repairs or replacements in accordance with the foregoing provisions of this
paragraph 5(b). Such notice may be given by direct telephone contact with or written or
e-mail communication delivered to the Grantee's Director of Public Works.
6. In no event may the Grantors obstruct the use of the Emergency Egress Way for
purposes of emergency pedestrian egress, unless the Grantors provide alternative emergency
routing for such egress that is reasonably acceptable to Grantee.
7. Maintenance responsibilities for the Easement Improvements shall be allocated as
follows:
(a) Vail Corp will provide any requisite repairs and replacements for the
Easement Improvements with respect to any damage (excluding ordinary wear and tear)
specifically caused to the Easement Improvements by the passage of snow cats or other
heavy equipment used in Vail Corp operations. In scheduling such repairs and
replacements, Vail Corp may reasonably take into account factors and circumstances that
warrant a deferral of the work (e.g., the occurrence of damage during ski season, when
the Easement Improvements are generally snow-packed anyway, and construction staging
and other activities being or to be undertaken that may cause further damage to the
Easement Improvements).
(b) Except for Vail Corp's obligations under paragraph 7(a) above, Grantee
agrees that it shall be obligated to undertake all requisite maintenance, repairs and
replacements to keep the Easement Improvements in good condition and repair; provided,
however, that Grantee will not be permitted to furnish any maintenance, repairs,
replacements or upkeep of the Easement Improvements (including, without limitation,
snow clearance or snow removal) during the Vail Mountain ski season, and the
Easements will include access rights in favor of Grantee for this purpose. Grantee will
complete its required maintenance, repairs and replacements for the Easement
Improvements in a good and workmanlike manner, without any damage to the Easement
Improvements or any other property interests of Grantors or other parties resulting
therefrom or from the use of the related access rights, and shall timely pay all costs and
charges associated therewith and promptly provide repairs and replacements at Grantee's
expense for any damage caused in violation of the foregoing. Subject again to Vail
Corp's repair and replacement obligations under paragraph 7(a) above, Grantee
C acknowledges and agrees that Grantors shall have no obligation or duty to furnish any
803580.5 RCFISH 4
C
maintenance, repairs or replacements for the Easement Path, or to provide notice or
warning of any dangerous or defective conditions therein, and Grantee specifically agrees
to bear any and all such obligations and duties, and to hold Grantors harmless from any
resulting liabilities for any failure of Grantee to properly discharge those obligations and
duties. Grantee will further bear any liabilities that may result from any breach of the
Grantee's obligations under this Agreement, or from the use and enjoyment of the
Easement, except that Grantee does not agree to bear any liability resulting from any
breach of any obligations hereunder that the Grantors may have.
8. Nothing herein shall be deemed or construed as a grant or a public dedication of
any fee ownership interests in the Servient Estate or other related or affected properties, and the
Grantors shall retain their respective fee ownership interests in that regard in all respects, it being
the intent hereunder that the sole property interest conveyed by this instrument is and shall be the
Easement, as the same is governed by the other provisions hereof. The Grantors each own fee
title to portions of the Servient Estate that are severable from the portions owned by the other
Grantor, and the rights and any obligations of the Grantors hereunder shall be severed and
independent of one another, with each Grantor and each of its successors in ownership to be
entitled to and liable for such rights and obligations only as they apply to the portions of the
Servient Estate owned by such Grantor or any such successor. Each Grantor and each of its
successors in ownership will be liable for any obligations or duties arising in connection with the
grant of the Easements or this Agreement only to the extent the same arise during the ownership
period of such party. In addition, such obligations and duties, or any part thereof, may be
assigned or delegated of record to any owners association formed with powers of governance in
connection with the Property or any portion thereof, or to any metropolitan district formed under
Colorado law with jurisdiction over the Property or any portion thereof, and such
assignee/delegatee will become solely liable for any such obligations or duties that it assumes.
9. This Agreement and the rights and interests established hereunder in favor of
Grantee shall not be assignable or transferable by Grantee in any respect, and any purported
assignment or transfer of any such rights or interests shall be null and void ab initio at the
election of Grantors or either of them; provided, however, that Grantee may delegate any of its
obligations hereunder to any general improvement district or similar public authority established
under the Grantee's jurisdiction and control (and Grantee shall remain primarily liable for the
obligations delegated). Only the Grantee will have rights under this Agreement to enforce the
Easements and any obligations or duties of Grantors hereunder, and no such rights of
enforcement shall inure to the benefit of any member of the public. The Easements and this
Agreement may be terminated, amended or modified by further recorded instrument mutually
executed by Grantee and Grantors (or either of them with respect to any portion of the Servient
Estate that it owns), and notwithstanding the grant of the Easements as a public benefit, the
Grantee shall have and retain all right, power and authority to make any such termination,
amendment or modification as Grantee may determine to be appropriate.
10. Grantors and each of them and Grantee shall each have any remedies 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
IL any other remedy. In the event any legal proceedings arise out of the subject matter of this
803580.5 RCFISH 5
u
Agreement and are prosecuted to final judgment, the prevailing party in such legal proceedings,
AIM as determined by the judge, jury or other arbiter therein, shall be entitled to an award against the
other party of the prevailing party's costs and expenses incurred in connection therewith,
including reasonable attorneys' fees.
11. Except as otherwise set forth in the foregoing provisions, this Agreement and the
rights and obligations created hereunder shall be binding upon and inure to the benefit of
Grantors and Grantee and their respective successors and assigns.
12. This Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado. This Agreement may be executed in counterparts, each of which shall
constitute an original, and which together shall constitute one and the same agreement.
[Balance ofpage intentionally left blank]
807580.5 RCFISH 6
IN WITNESS WHEREOF, Grantors have executed this Pedestrian/Bicycle Access
Easement Agreement as of the day of , 20_.
GRANTORS:
ARRABELLE AT VAIL SQUARE, LLC, a
Colorado limited liability company
Approved as to Form: l
Vail Resort Legal Department
By. J
-Cyr---
' gEATIiERCGN
Name:
Date: Z -t3-
STATE OF COLORADO )
ss:
COUNTY OF
By: Vail Resorts Development Company,
a Colorado corporation,
as Managing Member
By:
Keith Fernandez
President and COO-VRDC
The foregoing instrument was acknowledged before me this / 3 day of
be c , 200 by Keith Fernandez as President and COO of Vail Resorts
Development Company, a Colorado corporation, as Managing Member of Arrabelle at Vail
Square, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires
40 •1 0
N A
'0O
~ G
.p
R coL
My Commission Expires oilurO09
c
i-iy--o~
Notary Public
[Signature blocks continue on following page]
8035805 RCHSH 7
E
GRANTORS (cont.):
toFOM'
Approved as art>nc~ent
sor Legal Bep
Vail
BY N (It Rja a r.N-
Nan►e: ~
Date:
STATE OF COLORADO )
j ss:
COUNTY OF
THE VAIL CORPORATION,
a Colorado corporation
By: G~' - -
Keith Fernandez,
President and COO-VRDC
The foregoing instrument was acknowledged before me this r , day of
C- , 2007by Keith Fernandez as President and COO-VRDC of The Vail
Corporation, a Colorado corporation.
Witness my hand and official seal.
My commission expires:. / y - 01
N9Cj.: 00
My Commission Expires 01114/2009
803580.5 RUISH
Notary Public
[Joinder of Grantee follows on next page]
8
Acceptance of Town of Vail
The Town of Vail, as the Grantee hereunder, hereby accepts the dedication of the
Easements pursuant to this Agreement and agrees that it shall be bound by and its interests
subject to the terms hereof.
TOWN OF VAIL, a municipal corporation duly
organized and existing under and by virtue of the
laws of the State of Colorado
By:
Stanley B. Z mler, Town Manager
ATTEST:
Lorelei' Donaldson, Town Clerk
STATE OF COLORADO )
ss:
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of b-
2(bpl, 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: 0-
C
ry
4:
F-
803580.5 RCHSH
1C
9
EXHIBIT A
Depiction of Easement Path
and
Emergency Egress Way
(see the attached)
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9035805 RCFISH A-1
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11
KIOSK LICENSE AGREEMENT
(Mountain Operations)
CJ
FILE COPY
THIS KIOSK LICENSE AGREEMENT (this "Agreement") is made as of the day of
, 200 (the "Effective Date"), by and between 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 address is 75 South Frontage Road, Vail, Colorado 81657, Attention:
Town Attorney and Director of Public Works, and THE VAIL CORPORATION d/b/a VAIL
ASSOCIATES, INC., a Colorado corporation ("Vail"), whose address is 390 Interlocken
Crescent, Suite 1000, Broomfield, Colorado 80021, Attention: Legal Department.
RECITALS:
co
A. Vail and its affiliates are currently developing a mixed-use project in Vail,
Colorado commonly known as "Arrabelle at Vail Square" (the "Project").
B. The Town is the owner of certain real property in Vail, Colorado, immediately
adjacent to the Project and which is legally described on the attached Exhibit A (the "Property").
C. As part of the Project and as required by the approvals granted by the Town to
Vail for the Project, Vail (or its affiliates) installed a pre-manufactured kiosk measuring
approximately 12 feet by 12 feet (the "Kiosk") on the Property.
D.' The Town now desires to grant Vail a license to accommodate the continued
location, use and operation of the Kiosk on the Property on the terms and conditions set forth
below.
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 Vail hereby agree as follows:
1. Grant of License. The Town hereby grants Vail an irrevocable exclusive license,
coupled with an interest (the "License"), to permit the location, use and operation of the Kiosk
on the portion of the Property depicted on the attached Exhibit B (the "Licensed Property"). The
Licensed Property expressly includes the portion of the Property under the roof overhangs of the
Kiosk as necessary to allow merchandise displays. Any use of those displays by Vail will be
subject to conformance with generally prevailing Town governmental regulations and practices
applicable thereto (provided that in any event the requisite Town approvals will not be withheld
for displays consistent with any employed by the Town under paragraph 4(c)(ii) below).
2. Term. The License will have a term that commences upon the Effective Date and
automatically terminates one (1) year after the Effective Date (the "Term"), subject to earlier
termination as provided for in Section 7.
503515.6 GAGOOD
i
3. License Fee. In consideration of the grant of the License, Vail shall pay the Town
a license fee for the entire Term in the amount of $864. This license fee shall be due and payable
from Vail to the Town within thirty (30) days after the Kiosk first opens for business.
4. Permitted Use; Periods of Operation.
(a) Vail may use the Licensed Property and the Kiosk as a newsstand, from
which Vail may sell newspapers and periodicals, sundries, souvenirs and prepackaged snack
food items, and also for the distribution of ski trail maps and other literature pertaining to the
skiing, recreational and other operations by or through Vail and its affiliates on Vail Mountain
(the "Permitted Use").
(b) Vail will open the Kiosk for business on December 15, 2007, or as soon
thereafter as reasonably possible, and will operate the Kiosk in accordance with the Permitted
Use and pursuant to the following schedule of minimum operating times and hours:
(i) During Vail Mountain ski season, daily commencing 1/2 hour
before the Lionshead Gondola opens and begins running for skiing operations,
and ending 1/2 hour after the Lionshead Gondola closes for skiing operations; and
(ii) During the period from June 15 to Labor Day, daily from
10:00 A.M. to 4:00 P.M.
Notwithstanding the foregoing, the Town expressly acknowledges and agrees that Vail at its
CO election may operate the Kiosk during extended periods and hours beyond those required above
as the minimums.
(c) Vail agrees that the Town will be permitted to use the Kiosk for public
dissemination of information as and to the extent set forth below:
(i) The Town at its expense will be permitted to install and operate a
flat screen closed-circuit television to be located on the interior of a Kiosk
window mutually designated by the parties.
(ii) The Town will also be provided a location on the exterior of the
Kiosk to establish and stock, at the Town's expense, a self-serve movable display
containing literature that is made available to the public at no cost. The location
of the display will be in accordance with the mutual designation of the parties.
Vail will move the Town's display inside the Kiosk during non-operating hours,
and then relocate it to its designated exterior location during operating hours.
(iii) All information and literature provided pursuant to the foregoing
means of dissemination will be pertinent to the Town's public affairs, consistent
with information provided at Town information center(s) and by its public
information office, and specifically excluding any advertising brochures or
pamphlets or other commercial materials or media of private vendors or private
enterprises (for purposes of the foregoing, special events conducted in concert
Air, with the Town will not be considered commercial).
803515 6 GAGOOD 2
E,
11
(iv) Vail will have no obligation to maintain, care for or safeguard the
CW means of information dissemination provided by the Town pursuant to the
foregoing.
(d) In its Kiosk operations, Vail will endeavor to be reasonably courteous,
helpful and responsive in addressing requests for directions to destinations within the Town and
other informational requests posed by members of the public that are unrelated to Vail's Kiosk
operations.
(e) Vail also agrees that it will provide an identification sign for the Kiosk on
its exterior, subject to compliance with the generally prevailing Town sign code regulations, and
in furtherance thereof will promptly apply to the Town for the requisite sign permit.
5. Interior Finishes; Utilities; Maintenance.
(a) As of the Effective Date, the interior of the Kiosk is unfinished. Prior to
commencement of operations, Vail will cause the interior of the Kiosk to be finished, at its sole
cost and expense (excluding costs associated with any flat screen installed by the Town pursuant
to the foregoing provisions). As of the Effective Date, there is no utility service provided to the
Kiosk. Vail may, at its option and at its sole cost and expense, extend electrical and/or other
utility services to the Kiosk through other portions of the Property or other property in the
vicinity of the Licensed Property owned by the Town. The Town will cooperate with Vail in an
effort to provide such electrical and/or utility services to the Licensed Property. The interior
finishes and the provision of the utilities will be subject to compliance with generally prevailing
governmental regulations of the Town, as applicable (including building, mechanical and
electrical codes), but will not otherwise be subject to the Town's approval.
(b) Vail, at its sole cost and expense, will maintain the Kiosk in good
condition and repair, ordinary wear and tear excepted (subject to the foregoing provisions
governing the Town's informational facilities). Vail, as part of the License, may enter such other
portions of the Property as reasonably necessary for Vail to perform its maintenance obligations
under this Section 5.
6. Insurance. Vail at all times will maintain in full force and effect, with a good and
solvent insurance company authorized to do business in the State of Colorado, general
comprehensive liability insurance providing coverage against all claims for personal injury,
death or property damage occurring upon, in or about the Licensed Premises or as a result of the
operations of the Kiosk pursuant to this Agreement. Such policy must (a) be underwritten on an
"occurrence" basis; (b) name the Town as an additional insured party; (c) have a single
occurrence limit of coverage of not less than $1,000,000 and an aggregate limit of coverage of
not less than $2,000,000; and (d) provide that it may not be cancelled or materially modified
without at least 30 days' prior written notice to the Town. In addition to the foregoing liability
insurance, Vail must maintain in full force and effect workers' compensation insurance and/or
employer's liability insurance related to its operations of the Kiosk to the extent and in amounts
required by applicable law from time to time.
903515 6 GAGOOD
7. Casualty. If the Kiosk is destroyed or materially damaged by fire or other
casualty, Vail may give written notice to the Town at the address listed above, of its desire to
terminate this Agreement, in which event, subject to the provisions of Section 8, the Agreement
will terminate and be of no further force or effect. If Vail does not terminate this Agreement in
the event of a casualty, then Vail will restore (or replace if necessary) the Kiosk to substantially
the same condition as existed prior to the casualty as soon as reasonably practical. During any
period of restoration, Vail will be relieved of its obligation to operate the Kiosk under Section 4.
8. Restoration of Licensed Property. Upon the expiration of this Agreement or
earlier termination pursuant to Section 7, Vail will remove the Kiosk from the Licensed Property,
and Vail, at its sole cost and expense, will restore the surface of the Licensed Property to be
compatible with surrounding streetscape improvements within the Property.
9. Third-Party Operators. Vail may delegate any of its duties under this Agreement
related to the ongoing operation of the Kiosk to a third party operator, provided that any use by a
third party operator will be subject to all the terms, provisions, conditions and limitations set
forth herein, and Vail will be required to cause the third party operator to comply with the same.
Notwithstanding any such delegation, Vail will remain liable for all such duties. Vail will give
the Town written notice at the address listed above of any such delegation.
10. Satisfaction of Project Approvals. The Kiosk is shown on the streetscape plan
that was part of the Town approvals for the Project. The Town acknowledges and agrees that the
mutual execution of this Agreement fully satisfies all requirements related to the Kiosk that were
a part of the Town's approvals for the Project.
11. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Colorado.
12. 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 superceded hereby.
13. Amendment. This Agreement may be amended only to the extent set forth in a
written instrument executed by the party against whom enforcement of such amendment is
sought.
14. Attorneys' Fees. In the event any legal proceeding arises out of this Agreement
and is prosecuted to final judgment, the prevailing party will be entitled to recover from the other
all of the prevailing party's costs and expenses incurred in connection therewith, including
reasonable attorneys' fees (and any presiding court will be bound to make this award).
15. Counterparts. This Agreement may be executed in counterparts, each of which
will constitute an original, and which together will constitute one and the same agreement.
Ll
803515.6 GAGOOD 4
1
IN WITNESS WHEREOF, the Town and Vail have made this Agreement as of the
Effective Date.
ATTEST:
fLo~elePonaldson, Town Clerk
TOWN OF Vail, a municipal corporation duly
organized and existing under and by virtue of the
laws of the State of Colorado
By:
Stanley B. Zeml , Town Manager
[Vail's signature block follows on next page]
c
80' 3515.6 GAGOOD 5
THE VAIL CORPORATION, D/B/A VAIL
ASSOCIATES, INC., a Colo do corporation
B
Keith Fernandez,
President and COO-VRDC
toFAPPrl orm• ep ent
j,egal ~rtvo
Vail Re o
By~ ~R~iNGli~
Name: ~ 7-0-7
Date=
803515.6 GAGOOD 6
EXHIBIT A
The Property
G
Tract C,
Lionshead Sixth Filing,
According to the recorded plat thereof,
County of Eagle,
State of Colorado
E
803515.6 GAGOOD A-1
EXHIBIT B
The Licensed Property
(See the attached depiction)
803515.6 GAGOOD B-1
FILE COPY
SECOND AMENDMENT
TO
CORE SITE DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT TO CORE SITE DEVELOPMENT AGREEMENT
(this "Amendment") is made as of the day of , 20_, by and between 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"), and THE VAIL CORPORATION, D/B/A VAIL
ASSOCIATES, INC., a Colorado corporation ("Vail Associates").
RECITALS:
A. The Town and Vail Associates, along with 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 (together the "Development Agreement'). Initially capitalized terms used but not
defined in this Amendment shall have the meanings ascribed to them under the terms of the
Original Development Agreement or, if applicable, the First Amendment. The Core Site Project
is being developed under the project name "Arrabelle at Vail Square," and is referred to
hereinafter as the "Arrabelle Project."
B. Paragraph 9 of the Original Development Agreement requires, as a condition to
the issuance of any C.O.s for the Arrabelle Project, that "Vail Associates must either be under
construction, pursuant to a building permit or permits issued by the Town, for a project at the
North Day Lot that incorporates skier drop-off under its approved plans, or else furnish
comparable skier drop-off at an acceptable alternative location." The required skier drop-off, to
be a paved surface short-term parking facility to allow for the loading and unloading of Vail
Mountain skiers, snowboarders, and other Vail Mountain recreational users by private passenger
vehicles, is sometimes referred to herein as the "Skier Drop-Off Area" and is depicted on
Exhibit A attached hereto and incorporated herein by this reference. The requirement for the
Skier Drop-Off Area under the Original Development Agreement and the related condition to the
issuance of any Arrabelle Project C.O.s are sometimes referred to hereinafter collectively as the
"Skier Drop-Off Requirements."
C. The Town and Vail Associates have mutually determined to modify the terms
governing the Skier Drop-Off Requirements in accordance with and subject to the terms and
conditions of this Amendment.
NOW, THEREFORE, in consideration of the above premises, and the mutual covenants
and agreements contained herein, Vail Associates and Town covenant and agree as follows:
806855.4 RUISH
®
1. Provision of Skier Drop-Off. The Skier Drop-Off Area will be undertaken
pursuant to the following provisions:
(a) On or before January 15, 2008, Vail Associates will submit to the Town's
applicable design review body or agency (whether the Planning and Environmental
Commission (PEC) or the Design Review Board (DRB)) a development plan proposal for
the Skier Drop-Off Area that is prepared in material conformity with the plan attached as
or referenced on Exhibit B hereto, but that may also allow for the alternative of using the
Existing Access (defined below) if it becomes necessary, and by good faith application of
the Town's submission procedures and requirements of general applicability in relation to
the North Day Lot. Vail Associates will process that submission in good faith and
promptly through PEC and/or DRB (as each agency may be relevant under generally
prevailing Town design review procedures applicable to the North Day Lot), adhering to
the extent practicable to reasonable time frames imposed for any resubmission
requirements. The development plan proposal may also be modified in good faith in
order to integrate with any pending proposal for developing the balance of North Day
Lot. The Town in turn agrees that its relevant agency(ies) will (i) review and process the
development plan proposal promptly and in good faith, by reasonable application of the
Town's generally prevailing design and development standards, taking due account of the
nature and function of the Skier Drop-Off Area, and (ii) once a development plan has
been approved, promptly issue building permits or other requisite construction
authorizations if proper application is made therefor under the Vail Town Code based on
construction documents that conform to the approved development plan and otherwise to
the Town's generally prevailing construction specifications for the subject types of
improvements.
(b) In conjunction with the development plan submission to the Town, Vail
Associates, by good faith application of Colorado Department of Transportation (CDOT)
submission requirements, will also submit to CDOT for those CDOT approvals that are
necessary for establishing vehicular access serving the Skier Drop-Off Area along the
northerly boundary of the North Day Lot, as shown on Exhibit A hereto (the "CDOT
Access"). The Town agrees to furnish such cooperation and support as Vail Associates
may request in furtherance of its pursuit of CDOT approvals for the CDOT Access (the
"CDOT Approvals"). If Vail Associates is unable to obtain the CDOT Approvals, then
alternatively Vail Associates may furnish paved access to the Skier Drop-Off Area from
the existing available access to the North Day Lot along its western boundary (the
"Existing Access") if approved by the relevant reviewing Town agency(ies).
(c) Vail Associates will be required to undertake the paving and other
improvements for the Skier Drop-Off Area in material conformity with the development
plan approved by the Town, and otherwise in accordance with the following requirements
(the "Construction Requirements"):
(i) Vail Associates will be obligated to commence construction of the
Skier Drop-Off Area by no later than July 15, 2008 (the "Commencement Date");
provided, however, that Vail Associates will not be in default of this obligation if
Vail Associates is in compliance with its obligations under paragraph 1(a) and
806855.4 RCFISH 2
0
1(b) above, and nonetheless the requisite development plan approval has not been
obtained from the Town, in which event the Commencement Date will be
extended to allow for the delays in securing the development plan approval; and
provided further, that if the CDOT Approvals are not obtained by July 15, 2008,
but the parties, acting in good faith, mutually determine that significant progress
has been made with CDOT in that regard, then the Commencement Date will be
extended for an appropriate period, again as mutually determined by the parties in
good faith, to allow continued pursuit of the CDOT Approvals without
jeopardizing the ability to complete construction by November 1, 2008 as
provided in paragraph I (c)(ii) below; and
(ii) Vail Associates will be obligated to complete the construction of
the Skier Drop-Off Area by no later than November 1, 2008; provided, however,
that Vail Associates will not be in default of this obligation to the extent the
failure to complete by that date is attributable to permitted extensions of the
Commencement Date under paragraph 1(c)(i) above, or any other delays
attributable to the Town, in which event the required date for completion will be
extended commensurately with the length of any such extensions and to allow for
any such delays as well as resulting construction season limitations.
2. Security. As security for the Construction Requirements, Vail Associates shall
provide to and deposit with the Town, prior to the issuance of any C.O. for the Arrabelle Project:
IL (a) An irrevocable standby letter of credit issued by a banking institution and
made to the Town as beneficiary in the amount of $1,011,000 (the "Letter of Credit").
The Letter of Credit will have an initial term of one year, subject to a subsequent renewal
to extend the term at least to July 15, 2009.
(b) A recordable easement made by Vail Associates to the Town and granting
the Town access over the North Day Lot for purposes of completing construction of the
Skier Drop-Off Area in accordance with the following provisions, and for the subsequent
use of the Skier Drop-Off Area for its intended purposes (the "Easement").
Notwithstanding the foregoing, at Vail Associates' election, the Easement will be placed
into an escrow with Land Title Guarantee Company ("Land Title"), pursuant to
instructions reasonably satisfactory to the parties (including Land Title) for the Easement
to be recorded as part of any proper exercise of the "Construction Remedy" defined
below.
Upon the deposit of the Letter of Credit and the Easement with the Town (or, in the case of the
Easement, with Land Title if applicable), the Skier Drop-Off Requirements under the
Development Agreement will be satisfied in all respects, and the provision of the Skier Drop-Off
Area shall no longer constitute a condition to the issuance of any C.O. for the Arrabelle Project.
If Vail Associates timely completes the Construction Requirements, the Letter of Credit and the
Easement shall be returned and released to Vail Associates, along with such related
documentation as the Letter of Credit issuer may require, and the Town will have no further
interest therein.
806855.4 RCFISH 3
3. Default. If Vail Associates defaults in the completion of the Construction
Requirements, and does not cure such failure within ten (10) days after notice thereof from the
Town, then the Town may, as its sole remedy (the "Construction Remedy"):
(a) Record or have recorded the Easement, as applicable;
(b) Pursuant thereto enter the North Day Lot and undertake the construction
of the Skier Drop-Off . Area in accordance with the following provisions of this
Amendment, which right of entry and construction shall also extend to the Town's
contractors and agents (such construction undertaken by, through or under the Town
being referred to hereinafter as the "Town Construction"); and
(c) Draw upon the Letter of Credit as necessary to pay actual out-of-pocket
design, construction and construction management costs incurred on an arm's-length
basis by the Town to third parry contractors for completing the construction of the Skier
Drop-Off Area pursuant to paragraph 3(b) above. To the extent the draws made by the
Town under the Letter of Credit exceed those costs, the excess will be the sole property
of Vail Associates and remitted to Vail Associates forthwith. Upon request of Vail
Associates from time to time, and in any case upon the completion of the construction,
the Town will provide Vail Associates with an accounting made in reasonable detail of
the construction costs incurred, together with paid invoices, mechanic's lien releases, and
other documentation reasonably substantiating the construction costs incurred.
4. Town's Obli ations. In connection with any exercise by the Town of the
Construction Remedy:
(a) The Town shall cause the Town Construction to be undertaken and
completed diligently and promptly in accordance with any Vail Associates' development
plan approved by the Town, and otherwise in accordance with the plan attached hereto as
Exhibit A, and also in conformity with the stated terms for the Construction Remedy and
all applicable laws and in a good and workmanlike manner, employing good prevailing
practices in the construction industry for controlling dust, mud, debris, noise and
vibration and other adverse impacts generated from the construction process. However,
if the CDOT Approvals have not yet been obtained or denied, then the Town, before
commencing construction, will pursue the CDOT Approvals by the exercise of good faith
and diligent efforts; if the CDOT Approvals are denied, then access for the Skier Drop-
Off Area will be adjusted consistently with paragraph 1(b) above and otherwise in
reasonable cooperation with Vail Associates. The Town will relegate the construction to
as confined an area as is reasonably possible to minimize the effects on Vail Associates'
ability to use other portions of the North Day Lot. Upon the completion of the
construction, the Town will cause all related construction equipment, materials and tools
to be removed, will police the North Day Lot for removal of construction debris and
residue, and will otherwise restore the affected areas in the North Day Lot to the same
condition in which the same existed prior to the commencement of the construction by or
through the Town, subject to the improvements inherent in the Skier Drop-Off Area.
806855.4 RCFISH 4
CW (b) The Town shall not cause, suffer or permit any mechanic's, materialmen's
or other liens to attach to or be recorded against the North Day Lot that arise from the
Town Construction. To the fullest extent permitted by law, the Town shall indemnify
Vail Associates and hold Vail Associates harmless from any loss; cost or liability arising
out of or incurred by Vail Associates in connection with any such lien claims, together
with all costs and expenses, including attorneys' fees, that Vail Associates may incur in
connection therewith. If any such lien claim is recorded against the North Day Lot, then
the Town shall, within thirty (30) days after the recording of such lien claim, obtain its
release by settlement or bonding. If the Town shall fail to secure the release in a timely
fashion, then Vail Associates may, at its election, secure the release of the lien claim by
any means available, including bonding or settlement, in which case the Town will
reimburse Vail Associates for the latter's costs and expenses incurred in securing the lien
release, including attorneys' fees, within thirty (30) days after demand.
(c) To the fullest extent permitted by law, the Town shall indemnify and
defend Vail Associates and hold Vail Associates harmless from and against any and all
liabilities, losses, claims, liens, demands, actions or causes of action, including those
pertaining to any personal injury or physical damage to property, which may be asserted
against, imposed upon, or suffered or incurred by Vail Associates and which arise from
or in connection with the undertaking of the Town Construction and the related use and
enjoyment of the Easement, or any breach of the Town's other obligations hereunder,
together with all costs and expenses, including attorneys' fees, that may be incurred by
Vail Associates in connection with any such indemnified matter. This indemnity shall
not apply, however, to any matters stemming from the negligence or willful misconduct
of Vail Associates.
(d) In the course of any Town Construction, the Town shall cause its primary
contractor to carry and maintain in full force and effect commercial general liability
insurance insuring on an occurrence basis against any liabilities arising out of or
associated with the Town Construction or the use and enjoyment of the Easement. Such
insurance shall have a single occurrence limit of not less than $2,000,000; shall include a
contractual liability provision or endorsement for the Town's indemnity obligations
hereunder; shall name Vail Associates as an additional insured; shall provide that the
coverage may not be cancelled or materially modified without thirty (30) days' prior
written notice to Vail Associates; and shall otherwise be on terms reasonably satisfactory
to Vail Associates. Before any exercise of the Easement, the Town will provide Vail
Associates with a certificate for such insurance specifically naming Vail Associates as an
additional insured, and, if required by Vail Associates, a copy of the actual policy. The
Town will also cause its contractors and any other parties engaged by, through or under
the Town for the Town Construction to maintain in effect at all times during the
construction process workmen's compensation insurance that is in conformity with
Colorado law.
5. Alternatives to Skier Drop-Off. Upon request the Town agrees to cooperate
reasonably and in good faith with Vail Associates to determine and agree mutually upon
alternative means or consideration for satisfying the Skier Drop-Off Requirements other than the
provision of the Skier Drop-Off Area on the North Day Lot. The Town specifically
806855.4 RCFISH 5
.acknowledges the significance of this undertaking in the event that the Town, as of the
Commencement Date, or prior thereto, has approved or is favorably .considering approval of a
development plan for the North Day Lot that will not accommodate the Skier Drop-Off Area.
Any such alternative means, if established, would then serve to satisfy and would become the
Construction Requirements for purposes of the other provisions of this Amendment.
6. Release of Right of Entry. The parties mutually acknowledge that Vail
Associates holds a power of termination and right of entry for condition broken on the Town's
Lionshead public parking facility (the "Right of Entry") established by and reserved under a
certain deed from Vail Associates, Inc. to the Town dated May 15, 1980, and recorded in the
Records on May 15, 1980, at Book 302, Page 854, as amended. In the event Vail Associates
(having no obligation to do so) releases that Right of Entry of record prior to July 15, 2008, that
release shall be deemed to satisfy the Construction Requirements, and the Letter of Credit and
the Easement will then be returned to Vail Associates in accordance with paragraph 2 above.
7. Improper Recording of Easement. The Town specifically agrees that it may not
record the Easement, and that the Easement will not be legally delivered, unless and until Vail
Associates defaults in the completion of the Construction Requirements (after notice and cure as
set forth above), and the Town proceeds with the exercise of the Construction Remedy in
accordance with the foregoing provisions. If the Town breaches these limitations and otherwise
records the Easement, that recording of the Easement shall fall within the provisions of
C.R.S. §38-35-109(3) governing the recording of fraudulent documents (the foregoing being
without limitation on the other rights and remedies that may be available to Vail Associates for
such improper recording).
8. Notices. Any notice required or permitted under the terms of this Amendment
shall be given and shall be deemed received in accordance with the notice provisions under the
Original Development Agreement, which are incorporated herein by this reference and made
applicable to the provisions of this Amendment. For that purpose, the notice addresses and
information applicable to Vail Associates are hereby modified as follows:
The Vail Corporation
c/o Vail Resorts Development Company
P.O. Box 959
137 Benchmark Road
Avon, Colorado 81620
Attention: Keith Fernandez, President and COO
Fax No.: (970) 754-2555
806855.4 RUISH 6
with a copy to:
Vail Resorts Development Company
Legal Department
P. O. Box 959
137 Benchmark Road
Avon, Colorado 81620
Attention: Julie Stencel, Esq. and Diane Mauriello, Esq.
Fax No.: (970) 754-2555
9. Vail Associates' Remedies. Any breach or default by the Town of its obligations
arising under or in connection with this Amendment may be enforced by Vail Associates
pursuant to any and all remedies available at law as equity, including, without limitation,
equitable remedies for compelling the Town's performance. All such remedies shall be
cumulative with and in addition to and non-exclusive of one another, and may be pursued
successively or concurrently as Vail Associates may elect, and no exercise of one remedy shall
constitute an election to the bar of other remedies.
10. Severability. In the event any provision of this Amendment is held to be illegal,
invalid or unenforceable under any present or future laws, the legality, validity and enforceability
of the remaining provisions in this Amendment shall not be affected thereby, and in lieu of the
affected provision there shall be deemed added to this Amendment a substitute provision that is
legal, valid and enforceable and that is as similar as possible in content to the affected provision.
It is generally intended by the parties that this Amendment and its separate provisions be
enforceable to the fullest extent permitted by law.
11. Entire Agreement. This Amendment and the Development Agreement represent
the entire agreement between the parties hereto with respect to the subject matter hereof, and all
prior or extrinsic agreements, understandings or negotiations shall be deemed merged herein.
12. Rules of Construction. Each party hereto acknowledges that it has had full and
fair opportunity to review, make comment upon, and negotiate the terms and provisions of this
Amendment, and if there arise any ambiguities in the provisions hereof or any other
circumstances which necessitate judicial interpretation of such provisions, the parties mutually
agree that the provisions shall not be construed against the drafting party, and waive any rule of
law which would otherwise require interpretation or construction against the interests of the
drafting party. References herein to the singular shall include the plural, and to the plural shall
include the singular, and any reference to any one gender shall be deemed to include and be
applicable to all genders. The titles of the paragraphs in this Amendment are for convenience of
reference only and are not intended in any way to define, limit or prescribe the scope or intent of
this Amendment. Arrabelle at Vail Square, LLC, a Colorado limited liability company, which
has succeeded to Vail Associates' ownership interests in the Arrabelle Project, shall be an
express third-party beneficiary of the Town's agreements and obligations hereunder.
13. Town Authority, Modifications and Waivers. The Town acknowledges that this
Amendment has been executed on behalf of the Town by the Town Manager pursuant to a
determination that this Amendment constitutes a minor change within the meaning of
806855.4 RUISH 7
paragraph 22 of the Original Development Agreement. Those same provisions governing minor
changes may be applied to any further modification of the terms of this Amendment. This
Amendment may be further amended or modified only pursuant to a written instrument executed
by the parties. No provision of this Amendment may be waived to any extent unless and except
to the extent the waiver is specifically set forth in a written instrument executed by the party to
be bound thereby. The Town and Vail Associates mutually acknowledge and agree that the
rights, interests and obligations of Vail Reinvestment Authority under the Development
Agreement have been fully satisfied, that this Amendment does not affect Vail Reinvestment
Authority in any respect, that Vail Reinvestment Authority is not a necessary party or signatory
to this Amendment, and that this Amendment is fully binding between the Town and Vail
Associates without the joinder of Vail Reinvestment Authority.
14. Effect. This Amendment constitutes a modification of the provisions of the
Development Agreement. Except as modified hereby, the Development Agreement shall remain
in full force and effect in accordance with its stated provisions. In the event of any conflict or
inconsistency between the provisions of this Amendment and the provisions of the Development
Agreement, the provisions of this Amendment shall be controlling.
15. Recordation. This Amendment shall not be recorded unless otherwise elected by
Vail Associates. Any recordation of this Amendment shall not constitute any encumbrance
against the North Day Lot, and title to the North Day Lot shall be free and clear of any effect of
this Amendment or the Development Agreement.
16. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Colorado.
17. Additional Assurances. The parties agree to reasonably cooperate to execute any
additional documents and to take any additional action as may be reasonably necessary to carry
out the purposes of this Amendment.
18. Counterparts. This Amendment may be executed in counterparts, each of which
shall constitute an original, and which together shall constitute one and the same agreement.
19. No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Town and Vail Associates, and nothing contained in this Amendment shall be
construed as making the Town and Vail Associates joint venturers or partners.
20. Attorneys' Fees. In the event any legal proceeding arises out of the subject matter
of this Amendment and is prosecuted to final judgment, the prevailing party shall be entitled to
recover from the other party all of the prevailing party's costs and expenses incurred in
connection therewith, including reasonable attorneys' fees (and the presiding court will be bound
to make this award).
[Balance of page intentionally left blank]
806855.4 RCFISH 8
IN WITNESS WHEREOF, the Town and Vail Associates have made this Second
Amendment to Core Site Development Agreement as of the day, month and year first above
written.
TOWN:
TOWN OF VAIL, a municipal corporation duly
organized and existing by virtue of the laws of the
O F State of Colorado
. .
A :
sE
By:
Stanley B. Zemler, Town Manager
ATTEST:
LWelei onaldson, Town Clerk
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
VZec~~ , 2007, by Stanley B. Zemler, as Town Manager of the Town of Vail, a
municipal corporation duly organized and existing by virtue of the laws of the State of Colorado.
Witness my hand and official seal.
My Commission expires: O-7T~~~la
at;Itr:re~,.
0TAR}.: *ic
~'A' • ISignat#~-block of Vail Associates follows on next page)
.rs
806855.4 RUISH 9
n
U
Approved as to Form:
Vail Re o Legal Dkpartment
Name: HEATHER CUMONGEW
~
Date: (2--13-0
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
1-1
VAIL ASSOCIATES:
THE VAIL CORPORATION, d/b/a VAIL
ASSOCIATES, INC., a Colorado corporation
By:
Keith Fernandez, President and COO-VRDC
The foregoing instrument was acknowledged before me this 13 day of
-De C . , 2007, by Keith Fernandez, 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: / - / V- D.?
f.•c~OTAq`~'y-
~~F CO~O~
V1Q=WM b0W 01114/2009
4ea,&a 0
V
Notary Public
806855.4 RUISH 10 1
EXHIBIT A
Depiction of Skier Drop-Off Area
(see the attached)
806855.4 RCFISH A-1
EXHIBIT B
Skier Drop-Off Plan
(see the attached)
806855.4 RCFISH D-1
V
FILE COPY
SKIER DROP-OFF EASEMENT AGREEMENT
THE VAIL CORPORATION d/b/a VAIL ASSOCIATES, INC., a Colorado corporation
("Grantor"), whose street address is c/o Vail Resorts Development Company, 137 Benchmark
Road, Avon, Colorado 81620, for good and valuable consideration, in hand paid or received, and
subject to existing matters of record and the terms and provisions set forth herein, hereby grants
and conveys to TOWN OF VAIL, a municipal corporation duly organized and existing under
and by virtue of the laws of the State of Colorado ("Grantee"), whose street address is 75 South
Frontage Road, Vail, Colorado 81657, an easement upon, across and over the surface of the
Servient Estate (as hereinafter defined) for the following purposes (the "Easement"):
(i) The construction and installation of a paved surface parking area to be located in
the Servient Estate (the "Skier Drop-Off Area"), together with related vehicular
access ways within the Servient Estate that will serve that parking area (the
"Access Ways"); and
(ii) The use by the public of the Skier Drop-Off Area for short-term loading and
unloading of Vail Mountain skiers, snowboarders and users of other Vail
Mountain recreational resources by private passenger vehicles (the "Drop-Off
Use").
The "Servient Estate" shall mean that certain real property owned by Grantor that is commonly
referred to as the "North Day Lot" and that is legally described on Exhibit A attached hereto and
incorporated herein by this reference. The general location for the Skier Drop-Off Area is
depicted on Exhibit B attached hereto and incorporated herein by this reference. The Easement
shall be further governed by the following terms and provisions:
1. At such time as the construction and installation of the Skier Drop-Off Area has
been completed, the Servient Estate shall reduce in scope to the Skier Drop-Off Area and the
Access Ways. At the Grantor's election, the Grantor may establish specific metes-and-bounds
legal descriptions for the locations of the Skier Drop-Off Area and the Access Ways, as and
when the same have been constructed and completed, by the recording of an amendment or
supplement to this Agreement which incorporates such metes-and-bounds descriptions and
which is executed by Grantor and Grantee. The Servient Estate will then be narrowed to and
defined by those metes-and-bounds descriptions. Such supplement or amendment may also
incorporate a revised depiction of the Skier Drop-Off Area and the Access Ways to reflect as
built conditions. Upon request, Grantee will promptly join in and execute any such amendment
or supplement. Any such amendment or supplement may be executed and delivered on behalf of
Grantee by the Town Manager of the Town of Vail, after consultation with the Town Attorney,
and without any authorization or action by Town Council or any other agency of the Town of
Vail.
2. The Easement shall be non-exclusive, and the Grantor, for itself and its successors
in interest, expressly reserves the right to the use and enjoyment of the Servient Estate, including
806858 3
® 0
V
the Skier Drop-Off Area and the Access Ways, for any and all purposes that are not materially
inconsistent with the use and enjoyment of the Easement by Grantee and its contractors and
agents for undertaking the construction of the Skier Drop-Off Area and Access Ways, and by
members of the public for the Drop-Off Use. In that regard, the Grantor may reasonably regulate
the public's enjoyment of the Drop-Off Use in furtherance of the protection and safety of persons
and property, including Grantor's own property interests. Such reserved rights will include,
without limitation, use of the Access Ways for Grantor's own access purposes, and the right to
proceed with development of the balance of the North Day Lot; in that regard, Grantor will take
customary measures in accordance with ordinary prevailing construction practices to mitigate
any resulting impacts on the enjoyment of the Drop-Off Use. Grantee will bear and hold Grantor
harmless from any liabilities that may result from the enjoyment of the Drop-Off Use, except that
Grantee does not agree to bear any liability resulting from any breach of any obligations
hereunder that Grantor may have.
3. Grantee's use and enjoyment of the Easement for construction purposes are and
will be subject to and governed by the applicable terms and provisions of that certain Second
Amendment to Core Site Development Agreement made of even date herewith between Grantor
and Grantee (the "Skier Drop-Off Amendment"). This reference to the Skier Drop-Off
Amendment shall not constitute record notice of its existence, and the Skier Drop-Off
Amendment does not and shall not constitute any encumbrance of or cloud on title to the
Servient Estate.
4. With respect to the construction uses hereunder, the Easement shall constitute an
easement in gross in favor of Grantee, which may not be assigned by Grantee. In the event
Grantee purports to make any such assignment, the Easement and this Agreement shall
automatically terminate and be null and void and of no further force or effect. However, the
foregoing will not preclude Grantee from delegating any of its obligations and duties under the
Skier Drop-Off Amendment to any of its contractors or agents, provided that Grantee shall retain
primary liability for any such delegated obligations. The rights and any obligations of the
Grantor hereunder shall run with the land, but each successor owner of the Servient Estate shall
be liable only for any such obligations that accrue during the ownership period of such owner. In
addition, Grantor or its successor(s) may specifically assign and delegate of record any of
Grantor's rights and obligations hereunder, in whole or part, to the owner of any specific
designated portion of the North Day Lot, in which case the assigned/delegated rights and/or
obligations will then run only with the ownership of the portion of the North Day Lot so
designated. Such rights and/or obligations may also be assigned/delegated of record, in whole or
part, to any owners association or metropolitan district hereafter formed and having authority
over the North Day Lot or any portion thereof, in which case the applicable entity will become
solely liable for any obligations so assigned/delegated.
5. Nothing herein shall be deemed or construed as a grant or a public dedication of
any fee ownership interests in the Servient Estate, and the Grantor shall retain its fee ownership
interests in the Servient Estate in all respects, it being the intent hereunder that the sole property
interest conveyed by this instrument is and shall be the Easement, as the same is governed by the
other provisions hereof.
9068593 2
u
6. The Easement and this Agreement may be terminated, amended or modified by
further recorded instrument mutually executed by Grantor and Grantee, notwithstanding that the
Drop-Off Use under the Easement is a public benefit, and Grantee shall have and retain all right,
power and authority to make any such termination, amendment or modification as Grantee may
determine to be appropriate.
7. Grantor and Grantee shall each have any remedies 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. In the event any legal proceedings arise, out of the subject matter of this Agreement and
are prosecuted to final judgment, the prevailing party in such legal proceedings, as determined by
the judge, jury or other arbiter therein, shall be entitled to an award against the other party of the
prevailing party's costs and expenses incurred in connection therewith, including reasonable
attorneys' fees.
8. The members of the general public employing the Easement for the Drop-Off Use
shall all constitute invited guests of the Grantee 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, Grantor and Grantee mutually intend and agree that the Grantor shall have the full
benefit and protection of the provisions of C.R.S. § 33-41-103 in relation to the Drop-Off Use.
Grantor 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 under the Easement.
References herein to C.R.S. § 33-41-103 shall be deemed to include any subsequent amendments
thereto or successor provisions of law.
9. This Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado. This Agreement may be executed in counterparts, each of which shall
constitute an original, and which together shall constitute one and the same agreement.
10. This Agreement may be recorded in the real property records for Eagle County,
Colorado, at the election of Grantee.
[Balance of page intentionally left blank]
806858 3
o
IN WITNESS WHEREOF, Grantor and Grantee have made this Skier. Drop-Off
Easement Agreement as of the day of , 200.
GRANTOR:
Approved as to Form:
Vail Resort egal Department
By:
Name:[HERCUPiN GRAM
Date: 1W _L5
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 13 day of
`be C , 2001 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: / 1-/ - O
"s 0 "s
...966909 n1flu"11-R
A 7_9
T Notary Public
C
rantee signature block follows on the next page]
G.
'~oF co~~P
IvhrComnrs M
906858 3 4
r1.aF
SEAL
ATTEST:
o, .I
Lorelei,Dooldson, Town Clerk
STATE OF COLORADO )
ss:
COUNTY OF EAGLE )
GRANTEE:
TOWN OF VAIL, a municipal corporation duly
organized and existing under and by virtue of the
laws of the State of Colorado
By:
S ey B. emler, Town Manager
The foregoing instrument was acknowledged before me thi*;~~ day of N. _ _ _
20" 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: OQA>Q X2910
,.y,ztiu~oEx~+u~
let
Q U'•, Not
s
Off;
O :O'
STX
806858.3 5
C
EXHIBIT A
Legal Description of Servient Estate
11
Lot 1, Block 1, Vail/Lionshead, 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.
806858 3 A-1
o
EXHIBIT B
Depiction of Skier Drop-Off Area
(See the attached)
806858.3 B-1
Bankof America
0 0
~
BANK OF AMERICA - CONFIDENTIAL PAGE: 1
DATE: DECEMBER 13, 2007
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3091314
ISSUING BANK
BANK OF AMERICA, N.A.
1000 W. TEMPLE STREET
7TH FLOOR, CA9-705-07-05
LOS ANGELES, CA 90012-1514
BENEFICIARY APPLICANT
THE TOWN OF VAIL, STATE OF COLORADO THE VAIL CORPORATION
75 S. FRONTAGE ROAD WEST DBA VAIL ASSOCIATES, INC.
VAIL, CO 81657 -390 INTERLOCKEN CRESCENT, STE 1000
BROOMFIELD, CO 80021
AMOUNT
NOT EXCEEDING USD 1,011,000.00
NOT EXCEEDING ONE MILLION ELEVEN THOUSAND AND 001100'S US DOLLARS
EXPIRATION
DECEMBER 12, 2008 AT OUR COUNTERS
WE HEREBY ESTABLISH IN YOUR FAVOR OUR IRREVOCABLE STANDBY LETTER OF
CREDIT WHICH IS AVAILABLE WITH BANK OF AMERICA, N.A. BY PAYMENT
AGAINST PRESENTATION OF THE ORIGINAL OF THIS LETTER OF CREDIT AND
YOUR DRAFTS AT SIGHT DRAWN ON BANK OF AMERICA, N.A., ACCOMPANIED BY
THE DOCUMENT DETAILED BELOW:
BENEFICIARY'S SIGNED STATEMENT STATING THE FOLLOWING:
QUOTE
1) VAIL ASSOCIATES, INC. HAS DEFAULTED IN THE COMPLETION OF THE
CONSTRUCTION REQUIREMENTS PURSUANT TO THE SECOND AMENDMENT TO CORE
SITE DEVELOPMENT AGREEMENT DATED DECEMBER 2007 BY AND BETWEEN THE
TOWN OF VAIL AND THE VAIL CORPORATION DBA VAIL ASSOCIATES, INC.
("CSDA AMENDMENT") AND SUCH DEFAULT HAS NOT BEEN CURED IN ACCORDANCE
WITH THE TERMS OF THE CSDA AMENDMENT.
2) THE TOWN OF VAIL HAS UNDERTAKEN THE CONSTRUCTION OF AND COMPLETED
THE SKIER DROP-OFF AREA IN ACCORDANCE WITH THE CONSTRUCTION REMEDY
AND OTHER TERMS CONTAINED IN THE CSDA AMENDMENT.
3) THE AMOUNT DRAWN IS NECESSARY TO PAY ACTUAL OUT-OF POCKET DESIGN,
CONSTRUCTION, AND CONSTRUCTION MANAGEMENT COSTS INCURRED ON AN ARM'S
LENGTH BASIS BY THE TOWN OF VAIL TO THIRD-PARTY CONTRACTORS FOR
COMPLETING THE CONSTRUCTION OF THE SKIER DROP-OFF AREA PURSUANT TO
THE TERMS OF THE CSDA AMENDMENT.
UNQUOTE
PARTIAL AND MULTIPLE DRAWINGS ARE PERMITTED.
THIS LETTER OF CREDIT SHALL BE DEEMED AUTOMATICALLY EXTENDED WITHOUT
ORIGINAL
05-17-1486B 7-2000
Bankof America
BANK OF AMERICA - CONFIDENTIAL PAGE: 2
THIS IS AN INTEGRAL PART OF LETTER OF CREDIT NUMBER: 3091314
AMENDMENT FOR A PERIOD OF ONE (1) YEAR FROM THE PRESENT OR ANY FUTURE
EXPIRATION DATE, UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO ANY
EXPIRATION DATE, WE NOTIFY YOU BY REGISTERED MAIL OR OVERNIGHT
COURIER SERVICE AT THE ABOVE ADDRESS, THAT WE ELECT NOT TO EXTEND
THIS LETTER OF CREDIT.
WE HEREBY ENGAGE WITH YOU THAT DRAFT(S) DRAWN UNDER AND IN COMPLIANCE
WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON
PRESENTATION TO US AT BANK OF AMERICA, N.A., TRADE OPERATIONS CENTER,
1000 W. TEMPLE STREET, MAIL--CODE: CA9-705-07-05, LOS ANGELES, CA
90012-1514, ATTN: STANDBY LETTER OF CREDIT DEPARTMENT ON OR BEFORE
THE EXPIRATION DATE OR ANY AUTOMATICALLY EXTENDED EXPIRATION DATE AS
SPECIFIED HEREIN.
THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY
PRACTICES 1998, ICC PUBLICATION NO. 590.
IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS
TRANSACTION, PLEASE CALL 213-481-7844.
-
THORIZED SIGNATURE
THIS DOCUMENT CONSISTS OF 2 PAGE(S).
Bolivar Carrillo
ORIGINAL
05-17-1486B 7-2000
• • FILE COPY
IRREVOCABLE STANBY LEER OF CREDIT FORMAT
Legal Description: L,.OT G' ~I Ail U vu51-*A-c> b"I
Address: 67S \.1. L.Po&i5ti Ar..o Pf b4tA
Developer: The Arrabelle at Vail Square, LLC
Project Number:
•
SO -
Permit Number:
Improvement Completion Date: 11 ! Z005
Letter of Credit Expiration Date: 1121 t31 ZOO 99
DEVELOPER IMPROVEMENT AGREEMENT
THIS AGREEMENT, made and entered into this day of December 2007,
by and among The Arrabelle at Vail Square, LLC a Colorado limited liability company (the
"Developer") and the Town of Vail (the "Town") and Bank of America (the "Bank").
WHEREAS, the Developer, as a condition of approval of the Temporary Certificate of
Occupancy for the Arrabelle at Vail Square, Lot 1, Lionshead Sixth Filing, according to the
recorded plat thereof, County of Eagle, State of Colorado, wishes to enter into a Developer
Improvement Agreement; and
WHEREAS, the Developer is obligated to provide security or collateral sufficient in the
judgement of the Town to make reasonable provisions for completion of certain improvements set
forth in the attached estimated bid(s) in accordance with the approved plans and specifications
filed in the office of the Community Development Department of the Town of Vail; and
WHEREAS, The Vail Corporation desires to act for the benefit of its affiliate solely to
assist with the letter of credit, and
WHEREAS, the Developer wishes to provide security to guarantee performance of this
Agreement, including completion of all improvements set forth on the estimated bid attached
hereto as Exhibit A (the "Improvements") referred to in this Agreement, by means of the
following:
The Developer by and through The Vail Corporation agrees to establish an irrevocable
standby letter of credit #3091293 in the amount of $4,083,743.00 with Bank of America as
the security for the completion of all Improvements, in the event there is a default under
this Agreement by the Developer.
NOW THEREFORE, in consideration of the following mutual covenants and agreements,
the Developer and the Town agree as follows:
1. Developer Commitment. The Developer agrees, at its sole cost and expense, to
furnish all equipment and materials necessary to perform and complete all Improvements. The
Developer agrees to complete all improvements referred to in this Agreement on or before the
November 1, 2008. The Developer shall complete, in a good workmanlike manner, all
Improvements, in accordance with all approved plans and specifications filed in the office of the
Community Development Department of the Town of Vail, and to do all work incidental thereto
according to and in compliance with the following:
Page 1 of 5
a. All said work shall be done under the inspection of, and to the satisfaction
r of, the Town Planner, the Town Engineer, the Town Building Official, or other
official from the Town of Vail, as affected by special districts or service districts, as
their respective interest may appear, and shall not be deemed complete until
approved and accepted as completed by the Community Development
Department and Public Works Department of the Town of Vail.
2. Letter of Credit. To secure and guarantee performance of the obligations as set
forth herein, the Developer by and through The Vail Corporation agrees to provide
security as follows:
Irrevocable standby letter of credit #3091293 in the amount of $4,083,743.00
(125% of the total costs of the attached estimated bid(s) in the form attached
hereto as Exhibit B (the "Letter of Credit") with Bank of America set to expire on
the 13th day of December, 2008 (not to expire less than 30 days after the date set
forth in Paragraph 1 of this Agreement) as the security for the-completion of all
Improvements, in the event there is an uncured default under this Agreement by
the Developer.
3. Substitution. The Developer may at any time substitute the security originally set
forth above for another form of security or collateral acceptable to the Town to guarantee the
faithful completion of those improvements referred to in this Agreement and the performance of
the terms of this Agreement. Such acceptance by the Town of alternative security or collateral
shall be at the Town's sole discretion.
AWN
4. Liability. The Town shall not, nor shall any officer or employee thereof, be liable or
responsible for any accident, loss or damage happening or occurring to the work specified in this
Agreement prior to the completion and acceptance of the same, nor shall the Town, nor any
officer or employee thereof, be liable for any persons or property injured by reason of the nature
of said work, but all of said liabilities shall and are hereby assumed by the Developer unless
caused by the negligence or willful misconduct of the Town, its officers, agents, or employees.
The Developer hereby agrees to indemnify and hold harmless the Town, and any of its
officers, agents and employees against any losses, claims, damages, or liabilities to which the
Town or any of its officers, agents or employees may become subject to, insofar as any such
losses, claims, damages or liabilities (or actions in respect thereof) that arise out of or are based
upon any performance by the Developer hereunder; and the Developer shall reimburse the Town
for any and all legal or other expenses reasonably incurred by the Town in connection with
investigating or defending any such loss, claim, damage, liability or action. This indemnity
provision shall be in addition to any other liability which the Developer my have.
5. Partial Release. It is mutually agreed that the Developer may apply for and the
Town may authorize a partial release of the security provided to the Town for each category of
improvement at such time as such Improvements are constructed in compliance with all plans
and specifications as referenced hereunder and accepted by the Town. Under no condition shall
the dollar amount of the security provided to the Town be reduced below the dollar amount
necessary to complete all uncompleted Improvements.
6. Notice/Cure/Self Help. If the Town determines, at its sole discretion, that any of
the Improvements are not constructed in compliance with the approved plans and specifications
fir' filed in the office of the Community Development Department of the Town of Vail or not accepted by
Page 2 of 5
•
the Town as complete on or before the date set forth in Paragraph 1 of this Agreement, the Town
may, but shall not be required to, draw upon the security referred to in this Agreement and complete
the uncompleted Improvements after written notice to the Developer of each improvement which the
Town determines is not constructed in compliance with the approved plans and specifications filed
in the office of the Community Development Department of the Town of Vail or not accepted by the
Town as complete and a thirty (30) day opportunity for the Developer to cure any such default. In
the event Developer has commenced to cure the default within the cure period, such cure period
shall be extended beyond the 30 days for such reasonable period is required for Developer to cure
the default. Pursuant to Section 12-11-8, Vail Town Code, the Temporary Certificate of Occupancy
referred to in this Agreement .may be revoked after the notice and opportunity to cure until all
Improvements are completed by the Developer or the Town in accordance with this Agreement.
If the costs of completing the uncompleted Improvements (as determined by Developer
and Town) exceed the dollar amount of the security provided to the Town, the excess, together
with interest at twelve percent (12%) per annum, shall be a lien against the property and may be
collected by civil suit or may be certified to the treasurer of Eagle County to be collected in the
same manner as delinquent ad valorem taxes levied against such property. If the Developer fails
or refuses to complete the Improvements, such failure or refusal shall be considered a violation of
Title 12 (Zoning Regulations), of the Vail Town Code, and the Developer shall be subject to
penalties pursuant to Section 12-3-10 (Violations: Penalties) and Chapter 1-4 (General Penalty),
Vail Town Code.
7. Warranty. The Developer shall warranty the work and materials of all
Improvements located on Town property or within a Town right-of-way, pursuant to Chapter 8-3,
of the Vail Town Code, for a period of two years after the Town's acceptance of said
improvements.
8. Assignment. The parties hereto mutually agree that this Agreement may be
amended from time to time, provided that such amendments be in writing and executed by all
parties hereto.
The Arrabelle at Vail Square LC
By Vail rts nt Company, its Managing Member
Keith Fernandez, President and COO - VRDC
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing Developer Improvement Agreement was acknowledged before me this
3 Day of QC . , 20Z
0 by k' &
Witness my hand and official seal.
My commission expires
Approved as to Form:
Vail R r s~.egal Department
By:
Name: ~T~G ~GHM
Date: -02
rci
Notary Public
Page 3 of 5
ryC~
~F COQ-APP
* CW nission Expires 01/1412009
~ •L
C 2,,5~
Town Planner
STATE OF COLORADO )
)ss.
COUNTY OF EAGLE )
The foregoing Developer Improvement Agreement was acknowledged before me this
20Da by
Day of 7j' 2E~►~, cr , -
Witness my hand and official seal.
\ ` 1 ~j Li111f41tltlDf/fff~
My commission expires:
Notary blic O
4y;`i~ / ir~•unf~fllu1~~11~ey,,.~A'L
ATTACHED COPIES OF THE ESTIMATED BID(S)
Page 4 of 5
Bank of America BANK OF AMERICA - CONFIDENTIAL PAGE: 1
DATE: DECEMBER 13, 2007
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3091293
ISSUING BANK
BANK OF AMERICA, N.A.
1000 W. TEMPLE STREET
7TH FLOOR, CA9-705-07-05
LOS ANGELES, CA 90012-1514
BENEFICIARY APPLICANT
TOWN OF VAIL THE VAIL CORPORATION
75 S. FRONTAGE ROAD 390 INTERLOCKEN CRESCENT
VAIL, CO 81657 SUITE 1000
BROOMFIELD, CO 80021
AMOUNT
USD 4,083,743.00
FOUR MILLION EIGHTY THREE THOUSAND SEVEN HUNDRED FORTY THREE AND 001100'S
US DOLLARS
EXPIRATION
DECEMBER 13, 2008 AT OUR COUNTERS
WE HEREBY ESTABLISH IN YOUR FAVOR OUR IRREVOCABLE STANDBY LETTER OF
CREDIT WHICH IS AVAILABLE WITH BANK OF AMERICA, N.A. BY PAYMENT
AGAINST PRESENTATION OF THE ORIGINAL OF THIS LETTER OF CREDIT AND
YOUR DRAFTS AT SIGHT DRAWN ON BANK OF AMERICA, N.A., ACCOMPANIED BY
THE DOCUMENT DETAILED BELOW:
BENEFICIARY'S SIGNED STATEMENT STATING THE FOLLOWING:
QUOTE
(1) THERE HAS BEEN A DEFAULT UNDER DEVELOPER IMPROVEMENT AGREEMENT
DATED DECEMBER 2007 BETWEEN THE ARRABELLE AT VAIL SQUARE, LLC AND THE
TOWN OF VAIL (THE "DIA") WITH RESPECT TO THE COMPLETION OF THE
IMPROVEMENTS AS INDICATED IN THE APPROVED PLANS AND SPECIFICATIONS
FILED IN THE OFFICE OF THE COMMUNITY DEVELOPMENT OF THE TOWN OF VAIL,
AND THE DEVELOPER HAS NOT CURED NOR COMMENCED TO CURE SUCH DEFAULT
WITHIN THE APPLICABLE CURE PERIOD IN ACCORDANCE WITH THE TERMS
CONTAINED IN THE DIA.
(2) THE AMOUNT DRAWN IS REASONABLY REQUIRED TO CURE THE DEFAULT.
UNQUOTE
ORIGINAL
05-17-1486B 7-2000
BankofAmerica
BANK OF AMERICA - CONFIDENTIAL PAGE: 2
cw
THIS IS AN INTEGRAL PART OF LETTER OF CREDIT NUMBER: 3091293
PARTIAL AND MULTIPLE DRAWINGS ARE PERMITTED.
THIS LETTER OF CREDIT SHALL BE DEEMED AUTOMATICALLY EXTENDED WITHOUT
AMENDMENT FOR A PERIOD OF ONE (1) YEAR FROM THE PRESENT OR ANY FUTURE
EXPIRATION DATE, UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO ANY
EXPIRATION DATE, WE NOTIFY YOU BY REGISTERED MAIL OR OVERNIGHT
COURIER SERVICE AT THE ABOVE ADDRESS, THAT WE ELECT NOT TO.EXTEND
THIS LETTER OF CREDIT.
WE HEREBY ENGAGE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE
WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON
PRESENTATION TO US AT BANK OF AMERICA, N.A., TRADE OPERATIONS CENTER,
1000 W. TEMPLE STREET, MAIL CODE: CA9-705-07-05, LOS ANGELES, CA
90012-1514, ATTN: STANDBY LETTER OF CREDIT DEPARTMENT ON OR BEFORE
THE EXPIRATION DATE OR ANY EXTENDED EXPIRATION DATE AS SPECIFIED
HEREIN.
THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY
PRACTICES 1998, ICC PUBLICATION NO. 590.
IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS
TRANSACTION, PLEASE CALL 213-481-7844.
,/AUTHORIZED SIGNATURE
THIS DOCUMENT CONSISTS OF 2 PAGE(S).
Bolivar Carrillo
ORIGINAL
05-17-1486B 7-2000
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