HomeMy WebLinkAboutPEC080052r ;~
COPY
'~OWNOF YAIL
Department of Community Development
75 South Frontage Road
Vail, Colorado 81 G57
970-479-2138
F~4X 970-479-2452
www. vailgov. com
February 16, 2009
Mr. Donald Zelkind, President
Arrabelle at Vail Square Homeowners Association
650 West Lionshead Circle
Vail, Colorado 81658
Re: Arrabelle at Vail Square
Dear Mr. Zelkind,
Thank you for your letter of February 12, 2009, expressing several areas of concern with
regards to the Arrabelle at Vail Square project in Lionshead. The purpose of my letter is
to provide you with a written response to your questions and concerns.
Parking
The parking requirements for private development in the Town of Vail are established by
Chapter 10, Off Street Parking and Loading, and Chapter 14, Development Standards,
Vail Town Code. According to Section 14-5-2(K), Valet Parking, in part,
"Valet parking shall be allowed, but shall not exceed fifty percent (50%) of the
required parking on site. "
The Vail Town Code does not require the assignment or designation of private parking
spaces. I will be contacting representatives from Vail Resorts Development Company to
better understand the current parking operations at the Arrabelle at Vail Square project
and commit to following up with you on this matter.
Public Notice Requirement
Public notice requirements for all development applications requiring a public hearing
before the Town of Vail Planning & Environmental Commission are prescribed in
Section 12-3-6 (C), Notice, Vail Town Code. According to Section 12-3-6,
"1. Not less than fifteen (1 S) days prior to the date set for the hearing before the
planning and environmental commission, the administrator shall cause a copy of
the notice to be published once in a newspaper of general circulation in the town.
~' a RECYCLED PAPER
parking club, there is no net reduction in the total number of parking spaces available for
residential uses. According to the Town's records, approximately ninety-one (91) spaces
are required for the residential uses.
Access Panels
The Town of Vail Building Code requires access to the motors of whirlpool tub units.
According to the 2005 National Electrical Code ("NEC"), in part,
"Sufficient access and working space shall be provided and maintained about all
electrical equipment to permit ready and safe operation and maintenance of such
equipment "
On behalf of the Town of Vail, I will review the list of required inspections and
corrections completed by the Town of Vail Community Development Department to
determine the status of compliance with the applicable building codes. In return, I would
also request that the residential owners association please provide the Community
Development Department with a list of which residential units it believes may not
comply with the applicable building codes.
Falling Roof Tiles
On behalf of the Town of Vail, I have been in direct contact with Mr. Keith Fernandez,
President, and Mr. Thomas Miller, Director of Development, both of Vail Resorts
Development Company, regarding the issues of the failing roof the system and falling
snow and ice from the Arrabelle at Vail Square project. In response to these two issues,
the Town of Vail has granted revised design approvals and electrical permits enabling
VRDC to immediately address the issues. For example, the Town of Vail expedited the
review of a design review application which facilitated eventual modifications to the
snow guard system a top the roof. A second example includes the issuance of amended
electrical permits granting VRDC permission to add additional heat tape to critical areas
on the building. Rest assured the Town of Vail has impressed upon VRDC the
importance of fully addressing this issue in a most timely manner.
Waternroofin~ of the Steam Shower Units
The Town of Vail Building Codes regulates the construction of steam shower units.
According to the 2003 International Building Code, in part,
"When gypsum board is used as a base for the or wall panels for tubs, shower or
water closet compartment walls, water-resistant gypsum backing board shall be
used as a substrate, " and, "water-resistant gypsum backing board shall not be
used in the following location: Where there will be direct exposure to water or in
areas subject to continuous high humidity. " Section 2509.3 IBC.
Further, according to the manufacturer's specifications,
"Gypsum wallboard (including green board) is NOT recommended for use where
there will be direct exposure to water or continuous high humidity conditions
COPY
February 12, 2009
There are three areas of concern that I believe warrant the Town Councils attention and
would appreciate the town's cooperation in providing the information requested below:
A. Parking
Many of the homeowners purchased their property after having won a lottery for some
fifty units. Before and after the lottery, written literature was circulated to prospective
homeowners to induce them to enter the lottery and sign a purchase contract.
Homeowners were told they would have designated parking space/s near to the elevator
closest to their unit, and self-parking.
VRDC was well aware of the friction created by this apparent bait and switch scheme.
In October of 2008, long after VRDC was well on notice of the "parking problem" with
the Arrabelle condominium owners, VRDC apparently applied to triple the number of
parking memberships for sale at the Arrabelle Club from 100 to 300.
NO HOMEOWNER WAS EVER NOTIFIED THAT VRDC WAS APPLYING FOR
THIS ENLARGEMENT IN THE PARKING LOAD ON OUR SHARED PARKING
GARAGE. or those with parking
rights that may be affected by this change in the number of parking memberships?~
We would also like to have an
opportunity to express our concerns about the impact that this has upon our parking
rights, and request some sort of enforcement mechanism to ensure that the additional two
parking memberships do not infringe upon our allotment of parking spaces within the
shared garage.
This is a matter for the Town Council to address. If VRDC skirted the notice
requirements imposed by the town in its application to sell additional parking
memberships and the Arrabelle Club. I believe that VRDC should not be rewarded
by the town of Vail for violating the notice requirements contained in the zoning
and/or land use process.
B. Building
There are three large issues related to the construction of the Arrabelle. VRDC frequently
responds to building issues by stating that the Town of Vail conducted an inspection so
there cannot be design defect issue, or warranty issue.
There are no access panels to the whirlpool motors for the tubs in the master bathrooms.
Rock resorts has been providing complementary bubble bath salt cubes that will gum up
the motors. During our annual homeowners meeting VRDC has the temerity to claim that
tearing through grout joints, and removing marble tiles was the same as having an access
panel to the whirlpool motor. When the engineer/maintenance staff tried to repair a
whirlpool motor obtaining access to the motor required two days of digging around.
Does the Town of Vail building code require access panels for whirlpool tub
motors? Did this scheme really pass inspection? Is tearing through grout joints, and
removing marble tiles fall within the Town of Vail's definition of an access panel?
Falling roof tiles
The Arrabelle has a large walking mall and public area that attracts considerably more
pedestrians than the 66 condominium owners. The concrete roofing tiles have been
falling off the roof at an alarming rate. Beginning during the summer and increasing in
frequency this winter, chards of roofing tiles can be found underneath the circular parking
drive, the square itself, and Arrabelle balconies. One person has already been hit on the
head and fortunately he was wearing a ski helmet. This a design flaw in the roof that is
just over a year old and represents a hazard to the general public.
As a general public hazard this warrants the attention of the Town Council. VRDC
should be required to remedy this public hazard at their expense and give a
timetable for the repair process, and a plan to avoid casualties until the defect is
fixed!!!
Waterproofing of the steam shower units
VRDC and the subcontractors have given us contradictory information as to whether
green board or cement rock was used in the construction of the showers. Green board
according to the manufacturer is not designed for steam showers. At first we were told by
both the plumbers and VRDC that only green board was used, VRDC claimed that that
was all the town of Vail required. Later on VRDC claims that cement rock was use and
not green board.
To ensure that we do not have showers leaking into the units below, we would like
the assistance of the building inspector for the Town of Vail to determine what was
used, and what should have been used to waterproof the steam showers.
C. VRDC's attempt to avoid the Colorado Common Interest Act
The Colorado Common Interest Act was enacted to control common interest
communities created after July 1, 1992. Under the Colorado Common Interest
Ownership Act (the "Act") utility expenses can only be apportioned according to
use. One second before filing the Condominium Declarations with Eagle County, VRDC
filed another document entitled Reciprocal Easement and Covenant Agreement.
Self-dealing~contract to bind homeowners in perpetuity
This RECA was a contract between the Arrabelle at Vail Square LLC (as project owner)
and the Arrabelle at Vail Square (as air space owner). Keith Fernandez president of
VRDC signed the contract with himself as the managing member for the Arrabelle at Vail
Square LLC. This RECA recites that the airspace owner (that was subsequently
subdivided in 66 condominiums) must pay 59% of the utilities of the entire project
including the hotel and retail spaces without regard to actual utility use as required by the
Colorado Common Interest Act.
In addition if the hotel wants to make a capital improvement to the lobby of the hotel then
the homeowners again must pay for 59% of the improvement to the hotel lobby. The 59%
apportionment of all costs and expenses associated with the hotel and retail project to the
homeowners without regard to use, benefit, and control is not fair and reasonable and
contrary to the "Act."
VRDC in the RECA document states that Arrabelle project falls outside the protections
offered to condominium owners and within the small development exemption provided
for in the "Act." The small development exception refers to projects with fewer than
twenty units or the average common expense per unit is less than four hundred dollars per
year.
VRDC claims the separation between the project lot and the airspace lot is a two-lot
development and hence under the 20 unit minimum. The fact is the Arrabelle is a 66-unit
condominium development and the average annual per unit expense is over twenty five
thousand dollars. The "ACT" defines units, but VRDC in the RECA refers to lots.
The "Act" prohibits declarants such as VRDC from creating schemes to defeat the "Act"
and prohibits attempts to sign contracts to exempt a project from the "Act." The RECA
document is a scheme to skirt the "Act." The RECA document is an attempt to skirt the"
Act" by Mr. Fernandez signing a contract with himself.
The "Act" also requires the declarant to pay all expenses in connection with real estate
within the common interest community subject to development rights. The hotel and
retail space are development rights retained by VRDC, and under the `Act", VRDC
should bear all the expenses. The RECA is an attempt to pawn off 59% of the cost the
common interest community subject to development right onto the residential
condominium homeowners.
The "Act" also imposes a covenant of good faith and fair dealing. It is hard to envision
that all these systematic attempts to skirt the "Act" and shifts costs to homeowners could
be characterized as good faith dealings.
The reason that the Town Council should be concerned about the RECA vs. "Act" is that
most of the Arrabelle homeowners are out of state purchasers and all are tourists that
came to Vail to purchase recreational property. If VRDC is generating schemes to defeat
the rights afforded condominium owners within the State of Colorado, VRDC is cheating
the Vail tourists. The town of Vail should be concerned how tourists are treated by
VRDC in these real estate transactions. To a large degree the well being of the town of
Vail is dependant upon satisfied tourists who are treated fairly and in good faith.
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Sep 02 08 11:15a DAVE COLE 4042552677 p.1
COPY
To :Bart Peaslee ..Fax.. 888-839-4113
Frvm :David A. Cole
Sept 2 , 2008. 4 pages including cover
Sep 02 08 11:15a DAVE COLE 4042552677 p.2
A.R.RABELLE AT VAIL SQUARE CLOSING PROCESS
AND GENERAL QUESTIONS AND ANS~'VERS
APRIL 2005
S_4LES PROCESS
EARNEST MONEY
As you may recall, you were required to submit $100,000 along with your initial Reservation. In
accordance with the terms of that Reservation, you must submit certain Additional Funds when
you deliver an executed Purchase Agreement to Slifer Smith & Frampton~'VARE. The amount
of Additional Funds equals 10 % of the Purchase Price less the previously deposited amount of
$100,000. The Additional Funds can be submitted ~za wire transfer OR as a check {made out to
ARRABELLE AT VAIL SQUARE, LLC) attached to your Purchase Agreement. Your Earnest
Money deposit will draw interest un#il Seller commences construction. Seller will deliver
written notice to Purchaser and the Title Company at the time of Construction Commencement.
An additional deposit will be due at that time, in accordance with the Purchase Agreement.
LOAN
Although you may acquire a new loan in connection with your payment of the Purchase Price,
there is no Purchase Agreement contingency for any new loan. Accordingly, we recommend that
you apply for your loan at least 60 days before closing.
CLOSING COSTS
Closing costs aze those costs normally paid by a purchaser of real property. For present
purposes, the closing costs include, without limitation, recording fees, transfer assessment,
charges for delivery of closing documents if outside of Eagle County, one-half of closing fees,
not to exceed $500. These costs are further defined in Section 9.3 of the Purchase Agreement.
TAKING TITLE
The Land Title closer will consult with you prior to closing to confirm how you plan to take title.
You may elect to take title in joint tenancy or astenants-in-common, if applicable. Please
consult your legal counsel and tax advisor as title may have legal and tax ramifications.
RESERVATION ASSIGNMENT
Arrabelle Reservations are NOT assignable. Purchaser may, nevertheless, be allowed to assign
Purchaser's reservation to a member of Purchaser's immediate family, a trust created for the
benefit of Purchaser or Purchaser's immediate family, or a corporation or other entity which
controls, is controlled by, or is under common control with Purchaser (each a "Permitted
Assignment"), in accordance with the Purchase Agreement. Prior to Purchaser making any
Permitted Assignment, Purchaser must provide Seller with comprehensive documentation
evidencing to Seller's reasonable satisfaction that the proposed assignment is in fact a Permitted
Assignment. Seller reserves the right to refuse any assignment that is not adequately supported.
Such an assignment, if permitted, will take place in connection with Closing, and the form will
04,'15/OS
Sep 02 08 11:15a DAVE COLE 4042552677 p.3
be available from Land Title no earlier than September 1, 2005. This is further defined in the
Purchase Agreement, Section 18.1.
SIGNATURE PARTIES
Both Purchaser and Seller must sign the Purchase Agreement and related documents.
GENERAL QUESTIONS & ANSWERS
TIMING
What steps should I take if I cannot be reached between now and A'iay god? Notify our office
at Nail's New Dawn Preview Center at 86b-NEW-NAIL of the dates you will be out of town and
provide instructions on how best to communicate with you during that time.
RESIDENCE PRODUCT
How can I see the floorplan of my residence? The floor plans are available at
w~v.thearrabelle.com.
Can I change the floor plan? The Change Order process is included as an exhibit to the
Purchase Agreement and addresses the procedure for making any changes to the Unit.
Are a!1 door coverinQS included in the Purchase Price? Hardwood floors are included in the
living room, dining room, kitchen and entry. Stone the is included in the bathrooms. Carpet is
included in the bedrooms.
~'Vhere can I select my finishes? You can view the finishes at Nail's New Dawn Preview
Center. The Seller wrill mail you a "Finish Book" to review after contract.
~'Vho do I contact to make finish selections, upgrades and/or changes to my residence?
When is the deadline? $etween approximately July 2005 and September 2005, we will
schedule an appointment with each purchaser to facilitate the selection of our "Standard
Finishes." Please refer to the Change Order procedures as outlined in the Purchase Agreement
for all other changes. We will not be prepared to discuss the feasibility of or costs associated
with Purchaser.Directed Changes until approximately July 2005.
Can I do a "walk-through" prior to closine? Yes; there is a walk-through provision in the
Purchase Agreement, and you will conduct your walk-through (scheduled with a company
representative) prior to closing.
Do I have to purchase liQ6t fixtures? The only {fixed) light fixture you will need to
purchase is the dining room fixture. All other (fixed) fixtures are provided.
What appliances are included? The range/oven, refrigerator/freezer, microwave oven,
dishwasher, disposal, and a washer and dryer are included in the Purchase Price.
04,'15; OS
Sep 02 08 11:15a DAVE COLE 4042552677 p.4
How manv parkins spaces will I have? Residences and penthouses with two and three
bedrooms will have use of one narking space. Those with four or more bedrooms will have use
of two parking. spaces arranged in tandem fashion.
Where will my parking space(s) be? Itlthe}• will be located on the upper parking level, near an
elevator convenient to your residence wing.
Where will my guests park?Guests will use valet parking.
Who provides the television, telephone, and Internet service? Television, phone and Internet
services will be available through the Hotel.
A11~7ENITIES
Will 1 have access to the spa? Yes, the purchase of your residence includes access to the Spa.
Will there be a 5kilBoard/Boot Valet? Yes, it will be located in the southeast quadrant of the
property on the round level just opposite the Gondola and Chair 8. ~.
Do I get special skiing privile~,es? No.
Will tbere be any restanrants in the Arrabeile? Yes, there will be one hotel restaurant serving
breakfast, lunch and dinner and a pub!deli for lighter fare.
Can I use the Hotel Concierge? Yes, ail Hotel services will be available to residence owners.
Will the hotel provide a Business Center? If so, can I use it? Yes the Hotel will have a
business center adjacent to the meeting roorrliballrooms. We will provide standard business
center equipment with keycard access,
What are my HOA dues/fees? Homeowner fees are approximately $1.00 per square foot of
residential space per month. (Example: 2,000 sq. ft. 3 bedroom =$2;000 per month).
OTHER QUESTIONS
Please direct any other legal questions (BY EMAIL Ol~~LY) to rweily(a~vailresorts.com, ~l0
PHONE CALLS PLEASE.
l:lArrabc11e1Closing Process~.4mabelle QBc.A-F7NAL.dx
04/15/05 3