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HomeMy WebLinkAboutArrabelle Documents (recorded) t, CO TEAKEJCSIMONTON 200733757 PEC: $46.00 DOC:O$:50:31PM 12/31/2007 84. COURTYARD PEDESTRIAN ACCESS 1111 MM I 11.1- - GRANT OF EASEMENT (PUBLIC PEDESTRIAN ACCESS) 9 ('fib" 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} as the owner of certain real property in the County of Eagle, State of Colorado, legally described as Lot 1, Lionshead Sixth Filing, according to the recorded plat thereof ("Lot 1"), and 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 81657, 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 the Servient Estate (as hereinafter defined), which Easement is hereby made for the sole purpose of allowing pedestrian access across and over the surface of the Servient Estate for providing ingress and egress to and from contiguous access areas within Tract C, Lionshead Sixth Filing, according to the recorded plat thereof ("Tract C"), so long as said Tract C is owned and used as a public pedestrian access way by the Town. The "Servient Estate" shall mean those outdoor surface portions of Lot 1 that are developed and configured from time to time as an open, paved pedestrian mall area (a general depiction of such area as it is to be initially configured being. attached hereto for illustrative purposes only as Exhibit A), as such area may be changed and modified from time to time. The Easement shall be further governed by the following terms and provisions. 1. 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 the Easement: Without limitation on the foregoing; (a) 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 subterranean.or surface. improvements, upon, above, over, across, within and under the Servient Estate, including, without limitation, both surface and underground building improvements (but excluding any above-grade building or other surface improvements that are not approved by the Town and that would materially impede pedestrian access pursuant to the Easement). The Town, by its acceptance of this instrument, specifically acknowledges and agrees that any permitting or related requirements of the Town that apply specifically to maintenance, improvement or. other work undertaken in public ways or public property (including, without limitation, Sections 8-1-1, et seq. and 8-3-1, et sue., of the Vail Town Code) will not apply to any exercise of the foregoing retained rights (but other Town work requirements that apply generally, regardless of the location of the work, will not be affected by the foregoing). AVS will defend and indemnify the Town and hold the Town harmless from and against any claims made by or liabilities incurred to third parties for personal injuries arising After recording; please call Gerry Arnold at 845.2658 to 649954.11 RCFISH pick up this document. from any maintenance, repairs, or replacements or improvement work undertaken by AVS within the Servient Estate, and any costs or expenses, including reasonable attorneys' fees incurred by the Town in connection therewith, provided that these obligations of AVS shall not apply to any such claims or liabilities are attributable to the negligence or willful misconduct of the Town. (b) Subject to the "Exercise Limitations" hereinafter set forth, the retained rights under this paragraph 1 will act. as an appurtenant benefit to 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, and any and all improvements developed thereon and uses made thereof from time to time (the "Vail Resorts Properties"). Without limitation on the foregoing provisions of this,paragraph 1, AVS will be entitled to reasonably regulate and limit the use and enjoyment of the Easement in order to prevent any resulting material impairment of the use and enjoyment of such retained rights for the benefit of the Vail Resorts Properties, or any harm, damage or loss to the Vail Resorts Properties or any parties or interests related thereto. 2. In any event, and again ' without limitation on the retained rights under paragraph 1 above, the scope of the Easement will be subject to the following limitations: (a) AVS shall retain and have possession and.control of the Servient Estate as necessary or appropriate to assure compliance with the requirements under any Liquor License (defined below), and the Easement and its use and enjoyment will be subordinate to such possession and control. AVS may regulate and control pedestrian ingress and egress to and from the Vail Resorts Properties, or pertinent areas therein, to prevent any transport of alcohol beverages that may violate any terms, conditions or requirements under any Liquor License. However, AVS also acknowledges and agrees that while this retained possession and control will allow AVS to manage and regulate public access over the Servient Estate in the ordinary course of operations of the Vail Resorts Properties (including, without limitation, regulations implemented in accordance with the other provisions hereof), AVS will be required to preserve access corridors through the Servient Estate that, although regulated, are still sufficient to accommodate the ongoing use and enjoyment of the Easement by the public in general (subject, however, to any imposition of "Public Welfare Controls" under paragraph 2(f)(i) below). A "Liquor License" shall include any license issued by or through the Town and/or'the State of Colorado or the applicable agencies thereof authorizing the sale of alcohol beverages (as those terms are defined under applicable Colorado state statutes) and including within its licensed or permitted premises all or any part of the Servient Estate. (b) The access rights under the Easement will not apply to patios or open areas within the Servient Estate that adjoin and serve as part of any restaurant.or other operations conducted within any building space in the Vail Resorts Properties, whether any such operation is conducted by or through any owner or tenant of the Vail Resorts Properties '(and with the Easement being hereby made subordinate to any applicable leasehold interest), provided again, however, that AVS must continue to maintain access corridors elsewhere within the Servient Estate that are sufficient to 649854.11 RUISH 2 i accommodate the ongoing use and enjoyment of the Easement (subject, however, to any imposition of Public Welfare Controls under paragraph 2(f)(i) below). (c) From time to time AVS may limit or preclude access through any portions of the. Servient Estate in the ordinary course of undertaking any maintenance, repairs, replacements, alterations, modifications or additions for improvements upon, above, over, across, within or under the Servient Estate, provided that AVS, to the extent practicable, will give the Town at least two (2). business days' prior notice of any resulting closure of the Servient Estate. Such notice may be provided by direct telephone contact with or by written or e-mail communication delivered to the Town's Director of Public Works. (d) 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 AVS shall retain those fee ownership interests 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. (e) AVS may preclude, limit or regulate public pedestrian access over portions of the Servient Estate which from time to time are temporarily allocated to use in conjunction with any public or private entertainment; commercial, or other event held or conducted within any portion of Lot 1; provided again, however, that access corridors must be preserved elsewhere within the Servient Estate that are sufficient to accommodate the ongoing use and enjoyment of the Easement (subject, however, to any imposition of Public Welfare Controls under paragraph 2(f)(i) below). . (f) In connection with the day-to-day use of the Servient Estate: (i) AVS may preclude, limit or regulate public pedestrian access over portions of the Servient Estate from time to time as necessary or appropriate in furtherance of the safety and security of the owners, guests, occupants and other invitees of improvements within the Vail Resorts Properties, and their peaceful enjoyment of those improvements for their intended purposes, and the protection of their property and legal interests, as determined by AVS in its ordinary business judgment. Such regulation.may, without limitation, include the imposition of controls for entry and egress in furtherance of preventing instances within the Servient Estate of public' intoxication by any form of substance abuse, any nuisance, or any other activity that may be unlawful. However, controls imposed by AVS under this paragraph 2(f)(i) may not have the effect of precluding or materially obstructing the ongoing use and enjoyment of the Easement by the public in general except as necessary to address an imminent threat or danger to public safety or welfare or to persons or property interests, as determined by AVS in its ordinary business judgment (collectively, "Public Welfare Controls"). In that regard, AVS, again by exercise of its ordinary business judgment, will endeavor to impose Public Welfare Controls that to the extent practicable are reasonably focused, both in scope and duration, in 649854.11 RUISH 3 V A I L R E S O R T S D E V E L O P M E N T C O M P A N Y December 18, 2007 0~ VIA HAND DELIVERY J~ J. Matthew Mire, Esq. Town of Vail 75 S. Frontage Road Vail, Colorado 81657 Re: Arrabelle Documents Dear Matt: 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 RESDRTS- Fail Resorts Development Company • 137 Benchmark Road • Post Office Bus 959 • Avon. Colorado 81620-0959 • (970) 815-2535 • fax (970) 845-2555 • wNkw.mlc.com Vail • Beaver Cree' • Breckenridge Keystone`" - Heavenk' n Arrowhead" Bachelor Gulch'" - Red Sky Ranch- Jackson Hole Golf and Tennis Club' i~ VAIL R ESO R TS" 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, Gerry A old on behalf of Vail Resorts Development Company, acting for Arrabelle at Vail Square, LLC and The Vail Corporation 2 LJ furtherance of minimizing any material adverse effect on the use and enjoyment of the Easement. (ii) The exercise of the regulatory rights under paragraph 2(f)(i) above shall be at AVS' election, and the grant of the Easement and this instrument shall not be construed to impose upon AVS, and AVS shall not have, any obligation or liability to provide or assure any security in connection with the use of the Easement. (iii) The Town, by its acceptance of the Easement pursuant to its execution in the space famished below, agrees to exercise its law enforcement powers within the Servient Estate in the ordinary course of its governmental operations to the end of regulating the use of the Servient Estate in a manner consistent with the Town's prevailing law enforcement practices and policies for public pedestrian ways generally, and also to assist in implementing any controls or regulations instituted by AVS to the extent the same are consistent with the Town's prevailing law enforcement practices and policies. 3. During the term of the Easement, AVS shall operate the snowmelt systems within the Servient Estate, to the extent of their capacities, in order to provide snow removal for the Servient Estate to an equivalent standard that the Town implements for its snowmelt systems within the Tract C public pedestrian access areas adjoining the Servient Estate. This snowmelt operation will cease at such time, if ever, as the Town discontinues the operation of its public snowmelt systems within those Tact C areas. 4. The Easement shall remain in force and effect so long as there exist paved pedestrian mall areas within Lot 1 connecting with public pedestrian access areas within Tract C that are owned by the Town. At such time, if ever, as such pedestrian mall areas cease to exist, AVS may confirm the resulting termination of the Easement by executing and recording a further written instrument to that effect with the joinder of the Town as a signatory party thereto. AVS may also otherwise terminate or modify the Easement and this instrument by further recorded written 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. 5. 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. 6. Notwithstanding any transfer or conveyance of any ownership interests in any portion of the Vail Resorts Properties 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 MUCH KFISH 4 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 assignment may be made, without limitation, to any owners association formed with powers of governance in connection with the Vail Resorts Properties or any portion thereof, or to any metropolitan district formed under Colorado law with jurisdiction over the Vail Resorts Properties or any portion thereof. Designees of those retained rights from time to time may include lessees, managers or operators. of portions of the Vail Resorts Properties that are delegated possession and control in connection with Liquor License requirements. (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. 7. This instrument shall be governed by and construed in accordance with the laws of the State of Colorado. [Balance of page intentionally left blank] 649IS4.11 RCFISH 5 IN WITNESS WHWOF, AVS has made-. this Grant of Easement (Public Pedestrian Access) as of the s day of 2oo-7 ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company By: Vail Resorts Development Company, a Colorado corporation, edit°F°i~' went as Managing Member A~prOV Leal ~egarti VAR Van'e' 3 ' p date: B L~~~%~~ ZZ Y Keith Fernandez, President and COO . STATE OF COLORADO ) ss: COUNTY OF ~a ) The foregoing instrument was acknowledged before me this 13 day of he C 20 7 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 _ D Notary Public • rte: .0 -~q .y [Acceptance of Town follows on next page] ; ~XQ (P~A O G. ' , PO L F of COLpP My commission Expires o1/14/2009 649854.11 RCFISH 6 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 N p F laws of the State of Colorado o ' ol, By Q~. St ey B. Zemler, Town Manager ATTEST: Lori Do ldson, Town Clerk STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me thi~day of 20d , 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. r WITNESS my hand and official seal. d My commission expires: ;~ruuttiuutn~~~'I X1AGF4 'oIle, PAY ary is G. o= a 649854.11 RCFISH 7 EXHIBIT A Depiction of Servient Estate (See the Attached) 649854.11 RCFISH A-1 L4 CS L6 N86"03'19"E - 167.97' L9 N85'54'07'"E - 102.70' 0 0 - o 0 cn W r*i LOT 1 1 .S04Z. ' 1"=60 " VAIL SQUARE 00 ao Ltt LEGEND PUBLIC PEDESTRIAN z N85'54'07"E ACCESS EASEMENT w ra 13.75' un rn I . N UJ O (a ,A O Vi to W rn L16 L15 HARDSCAPE AND PEDESTRIAN EASEMENT L13 N (RECEPTION No. 937648) (CROSS HATCHED AREA) ? LINE TABLE w w LINE LENGTH BEARING m L7 12.67' 587'30"19"W I L2 16.48' N8730'19"E I rn L3 37.81' N55'06.'26"E K, L4 31.52' S85'54'07 "W 1~~" 601 L5 11.64 N63'16'38"W 232.98 s yh L6 2.95' 58554'07W S85'54'07W - L7 29.03" 554'05'06"E L8 18.82' S04'05'53"E L2 L9 16.01' N85'55'14"E CURVE TABLE L10 5.6 504'05'53"E CURVE DELTA RADIUS LENGTH TANGENT CHORD CHORD BEARING L11 1.23' N85'54'54" C1 32'37'32" 60.00' 34.17' 17.56' 33.71' N29'36'50"W C1 L12 38.54' S04'05'53"E L13 12.17' N85'54'07" EXHIBIT A c L7 L14 52.02' N44'20'04"W L15 4.00' N04'05'53"W LOT 1, VAIL SQUARE Lt6 61.e9' N672214••E TOWN OF VAIL, EAGLE COUNTY, COLORADO Ww i ORIGINk CVPN~ 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 81657, 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 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 649851.7 RCFISH 2 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] 649651.7 RCFISH 3 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 ent By: Vail Resorts Development Company, ,Vail Re r- a Colorado corporation, as Managing Member oNanle*----!!~~ By. r Keith Fernandez, President and COO STATE OF COLORADO ) ss: COUNTY OF ~4 Cj ~2 ) The foregoing instrument was acknowledged before me this L2 day of ~C C 20i?, by Keith Fernandez as President and COO of Vail Resort s 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: f .-l y - D CUN~y~ti We-JAV4 Notary Public [Acceptance of Town follows on next page] 06 19 L 0*0 *ease ~D Mon E OV1 649851 7 RCFISH 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. Vq TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the O ; ' A jo laws of the State of Colorado • L0 SEA . • By: COLON Stanley B. emler, Town Manager ATTE T: i . ' Lore ei JDaldson, Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE The foregoing instrument was acknowledged before me this adtt- day of 2007, 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: FtY• 0~ Not 649851.7 RUISH 5 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 P), 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 1; County of Eagle, State of Colorado. 649851.7 RCFISH A-1 EXHIBIT B General Depiction of Servient Estate [See the attached] 649851 7 RCFISH B-I r L4 <g L6 N86'03'19"E - 167.97' L9 N85'54'07"E - 102.70' 0 0 Ln W r scale°=so' LOT 1 00 VAIL SQUARE LEGEND L 11 ® PUBLIC TURNAROUND z ACCESS EASEMENT ° r N85'54'07"E U' N 13.75' rn a I N cl) W 0 O A O U W ITI I rn L16 L15 0 L13 In 0 LINE TABLE r Ln LINE LENGTH BEARING ci L1 12.67' S87.30'1 9"W rn L2 16.48' N87'30'1 9"E I 1~ L L3 37.81' N55'06'26"E rn L4 31.52' S85.54'07"W -_j L5 11.64' N63'1 6'38"W N _ o L6 22.95' S85'54'07"W S85'S4'07"W - 232.98' ~p0 ~tx~ L7 29.03' 554.05'06"E L8 18.82' S04'05'53"E L2 L9 16.01' N85'55'1 4"E CURVE TABLE / L10 5.62' S04'05'53"E CURVE DELTA RADIUS LENGTH TANGENT CHORD CHORD BEARING L" 1.23' N85.54'S4"E Cl 3237'32" 60.00' 34.17' 17.56' 33.71' N29'36'50"W Ct L12 38.54' S04'05'53"E L13 1117' N85.54'07"E L1 u4 52.02' N44•20'04'•w EXHIBIT B a---~ Lis 4.00' N04'05'53"w LOT 1, VAIL SQUARE L16 61.89' N87'22'14"E TOWN OF VAIL, EAGLE COUNTY, COLORADO t ^ ORIGIA144 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 RCFISH t 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 RCHSH 2 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 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 RCFISH 6 (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 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 RCFISH 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 RCFISH 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 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 Town shall have and retain the unilateral right, power and authority to act on behalf of the public 648049.7 RCFISH 11 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: Vp a or egaI DepArtment By: Vail Resorts Development Company, a Colorado corporation, as Managing Member HE ERCUN NGHAN► Name: Date: - a By: Keith Fernandez, President and COO STATE OF COLORADO ) ss: COUNTY OF Lf-& The foregoing instrument was acknowledged before me this 3 day of De,, 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 - e q yzea-,&'A Notary Public ~a 000 G J- ; 9 [Signature blocks continued on next page] y0 ;.L%G:POo *CMWhWM Eames 01/g4/= 648049.7 RCFISH 13 TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the N OF L laws of the State of Colorado Ile SEAL By: • s Stanley B. Zeml r, Town Manager ~oi~sA ATTEST: ' rele' onaldson, Town Clerk STATE OF COLORADO ) ss: COUNTY OF The foregoing instrument was acknowledged before me this 4L 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 Q~_ission expires: 6, L r. Q •.~6 ` blil O Y' Q r 648049.7 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- I I ,I I I RE. s JI I - Vim''' - ) I I SAE I I I , I I ' ~~EVE~R ~!^A H;MC«'F 2 I I I i I I I ~ i_ I. Sx• I , I + I I 9 / I `i I i I ,I, S " I I I-_ iM- ~E R~ 411 41 f' _ I TI - -iT - saE.r C r i !r or, r nE IRE. .on r. az r ,mss.; s - \ ra oo~ort nr~o I ~ , r _ Ri- I i -Cn RITOR ~ I I~-T '--1 .2 TRUCK YARD - =J SERVICE ROOM G222 Tom'- ELEVATOR I J I t~ ~ i I i _ I ° I ° ° _ PERIMETER OF / • - I L0.4DING/DELIVERY FACILITY /i~ - - - - - j = f 1iJ LOADING DOCK AND STAGING AREA ROOMS G222.01 AND G222.02 I I i I i ~ i JI~4w1~ ?-_4JRAG _FLO0R PLAN- I UEEL -2 I' OR 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 provisions hereof. 8097211 RCFISH 2 4. Association License Runs with the Condominium Propert y. 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 3 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. TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the N ~FL laws of the State of Colorado • L. • A ' c~C 4RA~ By: Stanley B. Zemler, Town Manager ATTEST: rel Donaldson, Town Clerk STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this9 t~ day of P-. L- s 200x7, 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. FMy commission expires: GL7'(~m &pu d 0 3c • • • [Signature blocks continue on next page] TAIr 909321.1 RCFISH 4 APprOVedasto e$ ~epattnjent THE VAIL CORPORATION, D/B/A VAIL 4, ASSOCIATES, INC., a Colorado corporation Vail Ate °tt By: v'te. 1 Keith Fernandez, President and COO-VRDC STATE OF COLORADO ) COUNTY OF ss: The foregoing instrument was acknowledged before me this 13 day of Dec. 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: ~~~R CUNN/ti Q OT'4R .~'y Notary Public [Signature blocks continue on next page] ~B L~ ..PQO N~A G OF Cod My Commission Expires 01/14/2009 809321.1 RUISH 5 ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company Approved as to Form: artment o egaI Dep By: Vail Resorts Development Company, a 'Vail ~ Colorado corporation, its Managing Member By: TI#BRCLNN c1iAM Name: Date: By Keith Fernandez, President and COO STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this 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: ~R CUN/y~ .00 Notary Public N~ :..0~ ~G • OO My Commission Expires o11140W 809321.1 RCFISH 6 EXHIBIT A Arrabelle Stairway Improvements See Attached Diagram 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 1 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. 2759 BRENT BIGGS PLS No. 27598 PREPARED FOR AND ON BEHALF OF O •~Qa~" PEAK LAND SURVEYING, INC. s~0~✓AC L P:ALIONSHEAD\1086.8\docs\Legal-Tract C Easement 2.doc t A=44"35'09" R=59.82' cs,. • L= 46.55' ~A /0•~ T=24.53' THE LIFT HOUSE -.~-j CH=45.38' CONDOMINIUMS ='4 4 E ~_9, ; L18 " (RECEPTION No. 508759) CB S55'18 r POINT OF I 1g 0 J" 36 00 COMMENCEMENT ~Zsn,. z c~~Q L7'~;C U L79 4.53' o V I I L38 L40 E1 F2 I L16 TRUE POINT OF / E3 LOT 1 REGiNNLNG- L11 I C TRACT C LIONSHEAD SIXTH FILING E4 LIONSHEAD ARCADE N 19.95 4 53 r (BOOK 223 PAGE 602) (LIONSHEAD SIXTH FILING) - BASIS OF BEARING - r N ~ i I LINE TABLES ~I I LINE LENGTH BEARING N 111 i E! 5.11 L23 549.0506"E N L21 E2 _ 6.30 504'05'06"E E1_25 N85'54'54E _ E4 10.03 S04'05'06"E _ r ES 4.86 S85'54'S4"W L42 L14 LINE TABLE c~ LINK LENGTH BEARING L6 73.92' S49.05'53"E ~ .60 Q 80 00' N85.54'07"E G° 585"54'07"W 203 o: U I i 8 20 00 _ - N04'05'S3"W- - 1 89.85 I L9 70.00' N85'54'07"E L Lil - 55_00' S04'05'53"E I I 35.00' 585'5407"W L12_ 45.00' S04'05'53"E I 1 L13. 52 ,32' Sag os's3"E I S85'54'07"W o L14 109.50 N85'54'07"E 4 I L15 77.00' N04.05'53"W 13.75' O ' L16_ 72.50' N85.54'07'E 1 / 47.50 N04'05'53"W L ' Gua 2250' N85.54'07"E LOT 5 19 45.69' _ 577.3618"E _ BLOCK 1 L20 60 92' S08'43'09"W _L21 aaso_ say s4'c7"w -1 J VAIL/LIONSHEAD CENTER L22 8 00' N04'05'S3"W CONDOMINIUMS L23_ 35.95' S85.54'07"W S r L24bi 20' soaos's3°E-~I C_ (BOOK 679 PAGE 358) SC9I,~ 1"=S0' 5 I ~L37 18 82' S04.05'53°E - X6.01' Nas•55'14"E N85'54'07"E 275.75' X39 562' S04.05'53"E _ L40 102_70_ N8554'07"E L41 88._38' S04.05'ss"E EXHIBIT A L42 1.23' N85.54'54"E ENCROACHMENT EASEMENT 1.43 . 3,9.58_ S04*05'53`E TRACT C, VAIL/LIONSHEAD, FIRST FILING PE.[ i..o Ems,, A ,„C TOWN OF VAIL, EAGLE COUNTY, COLORADO 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 A NORTHERLY ANGLE POINT BEARS S 85°54'07" W A DISTANCE OF 102.70 FEET BEING THE BASIS OF BEARING FOR THIS DESCRIPTION; THENCE CONTINUING ALONG THE NORTHERLY LINE OF SAID LOT 1, LIONSHEAD SIXTH FILING S 85°54'07" W A DISTANCE OF 8.07 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID NORTHERLY LINE OF SAID LOT 1, LIONSHEAD SIXTH FILING S 85°54'07" W A DISTANCE OF 5.88 FEET; THENCE DEPARTING SAID NORTHERLY LINE OF SAID LOT 1, LIONSHEAD SIXTH FILING THE FOLLOWING THREE (3) COURSES: 1) N 04°02'44" W A DISTANCE OF 0.57 FEET; 2) N 85°54'54" E A DISTANCE OF 5.31 FEET; 3) S 49°05'06" E A DISTANCE OF 0.80 FEET TO THE TRUE POINT OF BEGINNING. SAID PARCEL CONTAINING 3.18 SQUARE FEET MORE OR LESS. BRENT BIGGS PLS No. 27598 w PREPARED FOR AND ON BEHALF C? e~ r ~Q• ~Q'~~ `n..° ! l y S PEAK LAND SURVEYING, INC. y k', P:AL,IONSHEADU 086.8\docslLcgal- Tract C E4scment3.doc A=44'35'09 R=59.82' t3!(~•V;•°~r 7 L= 46.55' THE LIFT HOUSE T=24.53' CONDOMINIUMS L9 ' 7 L18 \ CH=45.38' ~6` (RECEPTION No. 508759) • CB=555'18'44"E -o • J 36 000 POINT OF O~F• ••`~vC I SC'fIL-A' 1"=50" COMMENCEMENT L7 r ~~4NAL LF`~~ ~79 (SEE DETAIL) J L38 w L40 I co L16 LOT 1 L11 ! LIONSHEAD SIXTH FILING I LIONSHEAD ARCADE TRACT C 7] (BOOK 223 PAGE 602) (LIONSHEAD SIXTH FILING) BASIS OF BEARING r cn LINE TABLE L23 N I L21 I LINES LENGTH BEARING E1 _ 0 57_ N04'02'44"W E2 5.31 N855454°E _ I r E3- 080 _ s49'a5o6"E L42 L14 LINE TABLE_ LINE _ LENGTH BEARING L6 73.92 549'05'53"E ' I L 7 80 00' N85.5407"E S85'54'07"W - 203.60' e POINT Of I F- 20.00' N04'0553"W__~ 189.85 70.00' _ N85.54'07"E L COMMENCEMENT ~L10 55.00' S04'05'53"E E2 F X11 _ 35_00' 585.54'07"WI ' E3 ' _L12 45.00' 504'05'53°E t I L13 52.32' sag oss3"E S85'S4'07"W C/) L40 L14 09.50' N85'54'07"E p 8.07' L15 77.00' N04'05'53"W 13.75' O r ' L16 72.50' N85'54'07"E U' 7 47.50' N04'0S'S3"W U, ' L18 _ 22.50' N85.54'07"E F LOT 5 L19_ 4569 577'36'18°E m BLOCK 1 TRUE POINT OE 20 60,92' S08'43'09_W BEGINNING 21 as so' _ sas sa_o/"w J VAIL/LIONSHEAD CENTER DETAIL ' L22 8 00' N04'0553"W (a) NOT TO SALE 2 35.95_ _ S85*54'07"W .CA CONDOMINIUMS L2461.20' s04.05'53"E (BOOK 679 PAGE 358) 37 18_82'_ t S04*05'S3"E _I ~ L38 16 01 --N8555'1 4"E N85 cr -54'07"E - 275'75 L39 5.62' YYYYYY S04005 53"E ti Lao 102_70 N85'5 4'07"E 141-- 88.3x'- - so4-05'53"E _ EXHIBIT A Lae 1.23' N8554'541 ENCROACHMENT EASEMENT o c 5 ir^M5 L L43 f 38,54' S04•05531 TRACT C, VAIL/LIONSHEAD, FIRST FILING TOWN OF VAIL, EAGLE COUNTY, COLORADO EXHIBIT B Lionshead Centre Stairway Improvements See Attached Diagram 909321 1 RMS11 B-1 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 70 1 HE l'RUE POINT OF BEGINNING; THENCE DEPARTING SAID SOUTHERLY LINE 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" EA 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. ✓J .o V BRENT BIGGS PLS No. 27598 v j PREPARED FOR AND ON BEHALF OF PEAK LAND SURVEYING, INC. P:ALIONSHEAD\1086.8\docs\Legal -Tract C Easement l.doc cj. F.9 R=59.82' '••~F,~A 0s F% ~ : \ L=46.55' ' THE LIFT HOUSE T= 24.53 CONDOMINIUMS CH=45.38' e' : o ~6' (RECEPTION No. 508759) L9 L18 \ CB=S55'18'44°E 00 L7 F- o ~ C19 c~ L38 L40 co I L16 I LOT 1 X11 LIONSHEAD SIXTH FILING LIONSHEAD ARCADE TRACT C 4 r (BOOK 223 PAGE 602) (LIONSHEAD SIXTH FILING) r N I r_ LINE TABLE L23 N I, I LINE T LENGTH BEARING N L21 El 2.65 N03.57'21°W 14.08_ N85'58'36"F E3_ 2.63_ S04'01'Ot"F ~ r L42 L14 POINT OF 41 l E LINE TABLE C7 COMMENCEMENT I LINE LENGTH BEARING r L6 73 92 S49'05'SA"E I ~ E2 U U Q ' L7 90.00' Naysa5"F E E3 '07"W - 203.60' a 1 200 0' N04 '05'53"W 585'54 189.85' I _L9 _70_00' N85'54'0 /'E Lto 55 00 S04'o553"5 V I '--(BASIS OF BEARING) L11 35.00' 585'54'07"W i L12 45.00' S04.05531 ~ i 14,08' + LI 52.32' S49'OS'53°E to I L1 - S85'54'07"W o TRUE POINT OF BEGINNING 41 109 . 50' N85'54'07"E -1-15 77.00' N04.05'53"W 13.75 6 20.59' ' L16 72.50' N85.54'07"E LP L17 47.50_ NOC05'53' J b I L18 22.50' Nas•sa'o7"E LOT 5 L19 45.69' 57736'18"E i BLOCK 1 20_ 60 92' S08'43'09"W _L21 as so' S85.54'0"W_1 J VAIL/LIONSHEAD CENTER i 4 L22 8 00' _N04'05'53"W 0) -1 L_ L23 35 95 sas 5a'o7o CONDOMINIUMS i i L24__ 6120__ 504.053°E___J _ (BOOK 679 PAGE 358) SC91,F,. 1"=50' i L37 _ 18.82 S04'05'53°E X38 _ 16.01 N85'55'14°E_~ N85'54'07"E - 275.75' L39 5 62 S04.05'53"F ELL4-0- 102.70' N85'54'07"E 1 41 _ 88.38' soa os's3_E EXHIBIT B o L42 1.23' Nes'54'S4"F ENCROACHMENT EASEMENT X43_ 38,5a0405'53"E J TRACT C. VAIL/LIONSHEAD, FIRST FILING a TOWN OF VAIL, EAGLE COUNTY, COLORADO III 0111GIA14 Arrabelle PEDESTRIANBICYCLE 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 evacuations in the case of any general emergency, which easement and right of 8035805 RUISH 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 RCPISH 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 construed 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 sec., 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 803580.5 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 sec., 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 acknowledges and agrees that Grantors shall have no obligation or duty to furnish any 803580.5 RCFISH 4 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 any other remedy. In the event any legal proceedings arise out of the subject matter of this 803580.5 RCFISH 5 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. 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 of page intentionally left blank] 803580.5 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: By: Vail Resorts Development Company, Vail Re ort Legal Department a Colorado corporation, By. C as Managing Member N~'CHERGN G as Managing Member Name Date: Z 3- V-/. By: Keith Fernandez President and COO-VRDC STATE OF COLORADO ) ss: COUNTY OF F~L The foregoing instrument was acknowledged before me this day of 'L>e L , 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:. O O?ANotary Public [Signature blocks continue on following page] N A F COL My Commission Expires o11141POO8 803580 5 RCFISH 7 GRANTORS (cont.): Approved astoForm: artmeat THE VAIL CORPORATION, so i.egal Eep a Colorado corporation Vail B)' • ' N~ iNG11AM ;171BRCi)N Date: By: GC Keith Fernandez, President and COO-VRDC STATE OF COLORADO ) ss: COUNTY OF The foregoing instrument was acknowledged before me this day of L7e L , 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 ' O 1~ ~R TANH/~G' Notary Public [Joinder of Grantee follows on next page] 9TF OFQ LO~OPQQ My Commission Expires 0111412009 803580.5 RCPISH 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: 1, ~ P, L--- Stant"ley B. Z mler, Town Manager ATTEST: Lorel ' Donaldson, Town Clerk STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this.2: t day of 20q?, 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: d.7r'~j/p S ~Q 0 0011, v ' P 19 7-E "G 803580.5 RUISH 9 EXHIBIT A Depiction of Easement Path and Emergency Egress Way (see the attached) 803580 5 RCFISH A-1 EXHIBIT A ARRABELLE L --j! I OT s. BI (X K - LIONSHEAD CENTRE v IL or,=HEAD CENTER c_a owr;lun~s / -TI j - /~T ACT B LOT t i LIONSHEAD 611-1 FILING BIKE/PEDESTRIAN EASEMENT (TYP) EMERGENCY EGRESS 1 EASEMENT (TYP) CHAIR 8 LOT 2 ' LIONSHEAD 6TH FILING EAGLE BAHN LOT 3 GONDOLA ~ LIONSHEAD 6TH FILING PROPERTY LINE ;TIPi 1--y+ LIONSOUARE LODGE - I TRACT E _y - VAIL/LIONSHEAD, FIRST FILING / ~GCRE ' Eti K ZZ f- ---T ORIGINk KIOSK LICENSE AGREEMENT (Mountain Operations) 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: 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. 803515.6 GAGOOD 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 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 with the Town will not be considered commercial). 803515 6 GAGOOD 2 (iv) Vail will have no obligation to maintain, care for or safeguard the 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. 803515.6 GAGOOD 3 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. 803515.6 GAGOOD 4 IN WITNESS WHEREOF, the Town and Vail have made this Agreement as of the Effective Date. TOWN OF Vail, a municipal corporation duly ~~wN•O,c organized and existing under and by virtue of the L laws of the State of Colorado s* S • • 0~ •'••.....•••~~r By: ATTEST: Stanley B. Zeml , Town Manager lo~elei)onaldson, Town Clerk [Vail's signature block follows on next page] 80;515.6 GAGOOD 5 THE VAIL CORPORATION, D/B/A VAIL ASSOCIATES, INC., a Colo do corporation B Keith Fernandez, President and COO-VRDC ,,,Proved as toForm Legal DeP~rtment Vail Re or BY x~.~ERCUNN~GIIM't .pate= 803515.6 GAGOOD 6 EXHIBIT A The Property Tract C, Lionshead Sixth Filing, According to the recorded plat thereof, County of Eagle, State of Colorado 8035156 GAGOOD A-l EXHIBIT B The Licensed Property (See the attached depiction) 803515 6 GAGOOD B-1 EXHIBIT B TT r_. I VAIL 21 TRACT C LIONSHEAD SIXTH FILING LIONSHEAD ARCADE I i) I I -1 ~ ( _ _`i KIOSK / LICENSED PROPERTY fY~. EAD CENTRE i TL I I ~ I I PROPERTY LINE (TYP) I I - - I I 1 I I f I , I I I I I I I I I SCALE: 1"=20' - I P TOW2001\dwg\CORE\Work\E>drititt 8 Kkmk:dwg, 12/04/2007 10:37:26 AM, TSL o R G ; NIA 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 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 CQOT 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 1(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: (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 party 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 Obligations. 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. 8068554 RCFISH 4 (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 RCHSH 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 RCFISH 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 OF State of Colorado 0~~~ •V~f! - ;SEAS: By: Stanley B. Zemler, Town Manager coL' ATTEST: ' ~ ~ ~ ILL n 1 Lorelei onaldson, Town Clerk ^ STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ~•f` day of 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-:> o"4016 V, ii1i51F9 i 9 E I:YSi r:',•t. 0TARy'. N 11ic -u~• PUR i IC. F %~'A'•, • [Signal-block of mail Associates follows on next page) 806855.4 RUISH 9 Legal Department LName. to Form: VAIL ASSOCIATES: THE VAIL CORPORATION, d/b/a VAIL EKMIERCUNNINGHAM 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 -L~e 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:- A CUNN~~ Notary Public r~OF COLO~P *Ci01~l~11011 El9S 01/14/1009 806855.4 RCFISH 10 EXHIBIT A Depiction of Skier Drop-Off Area (see the attached) 806855 4 RCFISH A-1 w=j NOTES: ? 1. EACH 24" TALL x 30" WIDE, PAINTED ALUMINUM PARKING STALL SIGN SHOULD HAVE THE FOLLOWING VERBIAGE 1REC-~ SPP F-R 2a• RV - ,z. ~,P1NF~ON J w WELCOME TO THE Wg z .j' NORTH DAY LOT P« r~ , 20 ; . ~Ik O x THIS AREA 7S DESICNAT6D ASA PERMIT PROPOSED EOA (TYP) LP,NE j r ' ,;i e Z i' GUR5TDROP OFFANDFICKUP PARKING 25, F~ tURtd _ w s . PLEASE ZLIIdCY YOONLY I URISTAY TO ONLY SjOR AGE Ig~ LESS THAN 10 MW VIYSI T Y UNATTENDED vetIIa Es oR m TOW AWAY VEHICLES STAYING LONGER THAN zoNS SCALE: 1 - 30 . 1s ME9VTEswn.L6ESORJEcTTV TICKETING, TOWING AIM/ORTHB TlQ!^~ ~J LL. USE OF AN TMMOBU=G BOOT.. HOOTREMOVALPEELSpo0. .SAP E~ G~OI~+"~ O F _ ! 4 rTYP) i SOU f I ntwxrouFORro~n RFC r STRIPING J < (L Q COOPERAroNANDruvaw ~~Pl i r ~ Q J suPERDen MPr~F FROPOS 2a M^ _ vaR... r Ma W~ FES r Ff` / ACCESS F 0 NT _ a B`tT }J 1J f 8 a--.'{ r 0 S2 yr v rt - r'~ t. t r EXISTING CL 4 .__a- E I _ _ - 1 \ I;; ' Z (n_I. (TYP EACH STALL r ' ).(TOTE DFk..10 STALLS) ARKING-DRC~ 1 , --MO !NTED ON 4"x 4"x 8' ' 5', t ATED ra ' T~ ;2 <r SI (I r ~PRESSL,RE IF > >e I h~UA~ ~2 0 ' 1POSTS. SCE N TE 1. tat ~r,s` 2 Ill) TOWarr - f '4 _ rd s a P D Bfl" W=7,18 4 ETAINiNGr W9L.L- / I 1 y! k I { t :nkReCiM~'( i._ f} 1 _I14 ) 1 - WTTI-L_ ESTRIAN- "'s t - - r l .l I A i ~ _ J$ / n* i = L Y IC r7~ / { , ' Qdw a / i ! {ZAI IN.-(T- 110- IT AILI 57f" ~k t r%1RK ti( ~r {F v `~.sl Y4 ` ^ T AR I'*G ~I 'S d } ,i IN " ' ~i - f k " It J`~ EkIS N h E lil Ih^ .n3 CH EF XISVA TTI~IQ GN I EL, ~'w AT ) 4 PGA` t tD JfR4FY CisE S (T7T''~ (i i',C)._ ~~'':I~~V r p - L!~ . ~ T •,z.i ' s~-I~r~_~~ ~ L^r~rr Ive..r 4 I Ca _ ~e ~'rl i.' ~j,~. r ~ I I'~~ ti.~ / J,c 1 .gyYn°• ,a, , - i 'K_4 P601~OSED1'3 1~ r~~~ TYP t f + -7 '1 6 PEDESTRI.~ IDGE CON NE- 1~ f r„r•.~~ .h ,I 1.;j .jY U/ 1~...A k k'C'. I NT~ BRIDGE r 1 0180 $.D 0: LB 7E= - t I r I ' 5 Q II z t r ' f - W;I_F COAL - I/ I f i I I IRKING OP} I ~q ' 14 a _ _ 1 an I POSED PR O -,a (YP) 1 I I I :I ,fF IGN~ SKIFR, DRCP CFFt ax 1Rnl'v r PARKING .,i t--+ ttt 6NLY S.C'N (IYP} F - rt MATCH EX„YING - . ,CNE YLR; EVER Y, ' S 1LL5:(TXP) r 1 j 1 LOT 1 X al f s~ y PARKIN(`:'ELEVATION!' rVO STALLS PRQPOF,ED ERSEY ,q 1 'I 1 e rr: I.. BARRIERS BLOCKI f z "J 1 ff u o 7 ;77 3 ~ ry EXIS'tNC PARKING GATE ro ~srnus SHEET S 'REMAIN, 1 OF 1 a: EXHIBIT B Skier Drop-Off Plan (see the attached) 806855.4 RCFISH B-1 • P:\TOV02001\dw \LH North Da Lot\Padcin -C-easement.dw 12/14/2007 3:27:45 PM Man C) m \ \ II o WEST LIONSHEAD CIRCLE I I 1 \ ~ I I I 1 I co D 1 I O ~D I o--I 1 7i O0 O I I it I O I ~ f 1 I \ m I ~ o I , i I CC) z 0 z~ 1 = 1 r~ p 1 I m0 __4 E70pcn ~ O DS l- - - TRACT C r (T.O.V.) - - - - - -1 I I DESIGNED NO. DATE REVISIONS BY 1 = DRANK N.E. - NORTH DAY LOT ~F m `"E`"E° KK SKIER DROP-OFF ENGINEERING I. AREA DATE 12-14-07 J18 10. ORIGINAL 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 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 tl,e 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. 806858 3 2 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 3 IN WITNESS WHEREOF, Grantor and Grantee have made this Skier. Drop-Off Easement Agreement as of the day of , 200. GRANTOR: THE VAIL CORPORATION, d/b/a VAIL [Appe: roved as to Form: ASSOCIATES, INC., a Colorado corporation Resort egal Department me: }[THERCUNN GRAM 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 -b e c , 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: 016.96 000 % '0 Notary Public • t rantee signature block follows on the next page] N:~p 9~F 4F co* Ml► Cwffis on Eames 01/14= 806858 3 4 GRANTEE: TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the --N OF laws of the State of Colorado s• SEAL By: • S a ey B. emler, Town Manager cOCORP►~A ATTEST: Lorelei o ldson, Town Clerk STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me thi*P:91* day of 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: C>Qlnn~201 p .y4tl{ifW~11{(~ Ss" 0 rrs • N Not :OV rrrii •••••....••~0 ST P~ 806858.3 5 EXHIBIT A Legal Description of Servient Estate 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 EXHIBIT B Depiction of Skier Drop-Off Area (See the attached) 806858 3 B-1 P:\TOV02001\dw 1LH North Da Lot\Parkin -C-easement.dw 12/14/2007 3:27:45 PM lu'an 0 m \ II o \ WEST LIONSHEAD CIRCLE \ 1 ~ I ~ \ \I I I \ 1 1 ` ao -o ~ I r0 ~ \ I 0 O- O I 1 it 1 00 13 I I I ~ m I \ $ ~ t I I I co O o= Dp 1 I :13 1 D O :D I n 1 TRACT C \ I 1 1 DESIGNED NO. DATE = REVISIONS BY N DRAWN N.E. NORTH DAY LOT - o m CHECKED KK SKIER DROP-OFF AREA ENGINEERING INC. DALE 12-14-07 JOB N0. ~ o OVAITUL TOWN Department of Community Development 75 South Frontage Road Vail, Colorado 81657 970-479-2138 FAX 970-479-2452 www.vailgov.com October 15, 2009 Jo Ann Hasegawa Bank of America, N.A. 1000 W. Temple Street 7th Floor, CA9-705-07-05 Los Angeles, CA 90012-1514 Re: Irrevocable Letter of Credit Number 3091314 The Vail Corporation dba Vail Associates, Inc. Dear Ms. Hasegawa, Enclosed is the original letter of credit for the above mentioned project. This project has been completed in regard to the letter of credit. If you have any questions please do not hesitate to contact me at 970-479-2150. Sincerely, Lynne Campbell Office Manager Enclosure 4LIr RECYCLED PAPER A TOWN Department of Community Development 75 South Frontage Road Vail, Colorado 81657 970-479-2138 FAX 970-479-2452 www.vailgov.com October 21, 2009 Fausto Omne Bank of America, N.A. 1000 W. Temple Street 7th Floor, CA9-705-07-05 Los Angeles, CA 90012-1514 Re: Irrevocable Letter of Credit Number 3091314 The Vail Corporation dba Vail Associates, Inc. Via: Fax to 213-457-8841 Dear Mr. Omne, The above mentioned letter of credit has been released and can be cancelled with your organization. If you have any questions please do not hesitate to contact me at 970- 479-2150. Sincerely, Lynne Campbell Office Manager %owj RECYCLED PAPER Confirmation Report- Memory Send Page 001 Date & Time: Oct-21-09 02:49pm Line 1 9704792452 E-mail Machine ID TOWN OF VAIL COMMUNITY DEVELOPMENT Job number 020 Date Oct-21 02:49pm To 8912134578841 Number of pages 001 Start time Oct-21 02:49pm End time Oct-21 02:49pm Pages sent 001 Status OK Job number 020 SEND SUCCESSFUL 70W, OF VAM ` 10<p-t -V of CVm-MiV Dsr~elopsrs<sat 75 Sousfi Fronsug< Roerc! Vail Cn/os~ado 81637 970-479-2138 FAX 970~F79~2452 zuv su. si[goucom - Octobcr 21. 2009 Fausto Omne Bank of America. N.A. 1000 W_ Temple Street 7~ Floor, CA9-705-07-05 Los Angglas, CA 90012-1514 Re: Irrevocable Letter of Credit Number 3091314 The Vail Corporatlon dba Vail Associates, Inc. Via: Fax to 213-45-7-93841 E)aar Mr. Omna, The above montioned latter of credit has boon roleased and can be cancelled with your organization- If you havin any quaations please do not hositate to contaot me at 970- 479-2150. Sincerely, .-I el_-2_ Lynne Campbell Office Manager ~3 RSG7'QB~ JLIPEQ Bank of America I NOTICE OF NON-EXTENSION BANK OF AMERICA - CONFIDENTIAL PAGE: 1 LOS ANGELES STANDBY TRADE OPERATIONS CA9-705-07-05 1000 W. TEMPLE STREET SEPTEMBER 16, 2009 LOS ANGELES CA 90012-1514 IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3091314 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 PLEASE BE INFORMED THAT, IN ACCORDANCE WITH THE TERMS OF THE ABOVE LETTER OF CREDIT NO. 3091314 WE HAVE ELECTED NOT TO EXTEND THE CREDIT, AND CONSEQUENTLY, THE CREDIT WILL ULTIMATELY EXPIRE ON DECEMBER 12, 2009. IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS NOTIFICATION, PLEASE CALL 1-800-541-6096 OPT 1. BANK OF AMERICA, N.A. (Dit- ' Q-41 AUTHORIZED SIG14AT JO ANN HASEGA ~k 9owF D SEP t 211-3 TOWN OF VAIL ORIGINAL 05-17-1486B 07-2000 Bank ofAmedc 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 DEFAUL'T'ED IN THE COMPLE'T'ION 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, Oi :7 I4MR 7-2000 Bank®f America m W' 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. --1 PCUTHORIZED SIGNATURE THIS DOCUMENT CONSISTS OF 2 PAGE(S). Bolivar Carrillo ORIGINAL n-17- 4841 7-2000