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HomeMy WebLinkAboutSnowmelt AgreementEAGLE COUNTY, CO 200918111 TEAK 3 SDf NtTON Pas: 11 12 :44:19PM 08/18/2009 RED: '$ $61.00 DOC: S S.NOWMELT AGREEMENT THIS SN WMELT AGREEMENT (this "Agreement') is made effective as of the L day of 2009 (the "Effective Date") by and between THE VAIL CORPORATION VAIL ASSOCIATES, INC., a Colorado corporation, together with its successor and assigns (collectively, "VAI"), whose street address is 390 Interbcken Crescent, Broomfield, Colorado 80021, ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company ("AVS'), successor -in- interest to VAI whose street address is 390 Interlocken Crescent, Broomfield, Colorado 80021, and the TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado (the "Town'), whose street address is 75 South Frontage Road, Vail, Colorado 81657. VAL AVS and the Town are collectively referred to as the "Parties" and each individually as a "Party". A. The Town and VAL along with the Vail Reinvestment Authority, are parties to that certain Core Site Development Agreement dated November 8, 2004, and recorded in the real property records for Eagle County, Colorado (the "Records'), on November 21, 2005, at Reception No. 937604 (the "Original Development Agmement'j, as modified by an Amendment to Core Site Development Amt dated July 19, 2005 ( the "First Amendment"), made among the same parties, and recorded in the Records on November 21, 2005, at Reception No. 937605, and as further modified by that certain Second Amendment to Core Site Development Agreement dated as of December 21, 2007 (the "Second Amendment") (as so amended, the "Development Agreement"). B. Initially capitalized terms used but not defined in or by other reference under this Agreement shall have the meanings ascribed to them under the terms of the Development Agreement The Core Site Project has been developed under the project name "Atrabelle at Vail Square," and is referred to hereinafter as the "Arrabelle Project." C. Pursuant to the Development Agreement, the Town is responsible for paying utility charges for the Off-Site Snowmek Facilities and AVS is responsible for the utility charges for the snowmen facilities located within the On -Site Streetscape Improvements (the "On -Sae Snowmelt Facilities). D. Approximately 3,330 square feet of property which is owned by AVS includes snowmelt facilities that are teetered with the Off -Site Snowmelt Facilities (the "AVS Snowmelt Zone") and approximately 3,385 square feet property owned by the Town includes snowmelt facilities that are metered with the On -Site Snowmek Facilities (the "Town Snowmelt Zone'), each as more particularly set forth on Ex hibit A. E. The Town and VAI desire to amend their obligations under the Development Agreement so that the Town is responsible for the AVS Snowmelt Zane and AVS is responsible for the Town Snowmelt Zone. T C R W.- NOW, THEREFORE, in consideration of the above premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Exchange of Snowmelt Areas (a) VAI hereby assigns the Town hereby accepts responsibility for the utility charges incurred in providing heat to the AVS Snowmelt Zone, and the Town will be solely responsible for paying the utility charges incurred with respect to the AVS Snowmelt Zone. The Town will provide all maintenance, repairs and replacements for the AVS Snowmelt Zone in accordance with the Town's obligations for the Off -Site Snowmelt Facilities. From and after the Effective Date, the snowmelt facilities within the AVS Snowmelt Zone shall be deemed to be part of the Off-Site Snowmelt Facilities. If the obligation of AVS to operate the Town Snowmelt Zone ceases pursuant to Section 1(b) of this Agreement, the obligation of the Town to operate the AVS Snowme8 Zone will cease at such time. (b) The Town hereby assigns and AVS hereby accepts responsibility for the utility charges incurred in providing heat to the Town Snowmelt Zone, and AVS or it successors and assigns will be solely responsible for paying the utility charges incurred with respect to the Town Snowmeh Zone. AVS, or its successors and assigns, will provide all maintenance, repairs and replacements for the Town Snowmelt Zone. From and afkr the Effective Date, the snowmeft facilities within the Town Snowmelt Zone shall be deemed to be part of the On- Site Snowmelt Facilities. AVS agrees that AVS will operate the Town Snowmeh Zone in a manner that is consis fi wilt a To u s tnon o ems- 'nfe rno Facilities in to provide snow removal for the Town Snowmelt "M to an equivalent sftWard that the Town or e - ite gation of AVS to operate the Town ' n — owmen Zone will cease at such time, if ever, as the Town discontinues (i) the operation of the Off -Site Snowmeh Facilities, or (ii) the operation of the AVS Snowmelt Zone. (c) Except as specifically set forth in this Agreement, the obligations of the Parties in the Development Agreement, including, without limitation, with respect to Central Snowmelt Cosa, shall continue in full force and effect. 2. Off -Site Snowmeh F il�c ities (a) The Parties agree that the Off-She Snowmelt Facilities include (i) the heat - exchanger that services the Off-Site Snowmeh Facilities (the "Off-Site Exchanger"), and (ii) all equipment and other improvements from the Off-Site Exchanger to the boundaries of the Off -Site Streetscape Improvements. Pursuant to Section 3 of the First Amendment, the Town will provide maintenance, repairs and replacements for the Off -Site Snowmelt Facilities. (b) The Town will be solely responsible for paying the utility charges incurred in providing heat to the Off -Site Snowmelt Facilities. As of the Effective Date, gas charges for the heating of the Off Site Snowmelt Facilities are separately metered and other utility charges (including electricity) attributable to the Off -Site Snowmelt Facilities shall be determined in accordance with ordinary accounting and man g practices prevailing from time to time in the Anabelle Project, including the recommendations of AVS' building engineer. In accordance with Section 3 of the First Amendment, the Town is responsible for its proportionate share of Central Snowmelt Costs based on relative utilities consumption for the Off -Site Snowmeh Facilities in comparison to such consumptions incurred for the snowmelt facilities within the On -Site Streetscape Improvements and the Lionshead Place Improvements, and building and other improvements served thereby. Following the Town's written request, AVS shall provide copies of the invoices related to the Central Snowmelt Costs to the Town. (a) The Town and AVS agree to cooperate with each other to ensure that the Off -Site Snowmeh Facilities and Central Heat Facilities are operating and functioning efficiently. (b) For the purpose of performing the maintenance of the Off -Site Snowmeh Facilities, the Town and its duly licensed mechanical contractor (" Contractor"} shall be granted reasonable access by AVS to boiler mom for the Off -Site Snowmelt Facilities. The Town and the Contractor shall provide reasonable prior written notice to AVS of when such access is required; provided, however, in the event of "an emergency, the Town and Contractor will provide prompt notice to AVS upon the Town or Contractor becoming aware of such emergency and the Town or Contractor will be provided prompt access to the boiler room for the Off -Site Snowmelt Facilities. 4. Acceptance by the To In accordance with the Development Agreement and the terms of this Agreement, the Town hereby accepts the Off -Site Snowmelt Facilities (including, without limitation, the Liunshead Centre Snownich Facilities). 5. Warranty Pursuant to Section 2 of the Original Development Agreement, the two (2) year warranty to be provided by AVS for the Off -Site Snowmeh Facilities shall commence on the Effective Date and terminate on the second (2° anniversary of the Effective Date. 6. fEf ect This Agreement constitutes an amendment and modification of the Development Agreement. Subject to the express modifications herein, the Development Agreement shall remain in full force and effect in accordance with its stated provisions. In the event of any conflict between the terms of this Agreement and the terms of the Development Agreement, the terms of this Agreement will be controlling. The terms of this Agreement shall be interpreted and given'fmtix and effect in accordance with the non - conflicting provisions of the Development Agreement, which shall be applied to the terms of this Agreement as if those terms were a part of the Development Agreement in the fast instance. This Agreement shall not be recorded except at the election of VAI. 7. Notices All notices required under this Agreement shall either be (a) hand delivered, (b) given by certified mail, return receipt requested, directed to the name and address set forth below, (c) given by overnight courier directed to the name and address set forth below, or (iv) sent by facsimile transmission to the applicable facsimile numbers set forth below. All notices so given shall be considered effective (i) if hand detivcred, when received, (ii) if by certified mail, three (3) calendar days after deposit, certified mail postage prepaid, with the United States Postal Service, (iii) if by overnight courier, one (1) business day after deposit with an overnight courier, with delivery charges prepaid, or (iv) if by facsimile transmission, upon receipt of a machine- generated confirmation of a successful transmission of all pages. Any Party hereto may change the address or facsimile number to which future notices shall be sent by notice given in accordance with this Section 7. A "business" day shall mean any day other than a Saturday, a Sunday, or any holiday on which U.S. Mail service is not provided Town of Vail 75 South Frontage Road Vail, Colorado 81657 Attention: Director of Public Works Facsimile No.: (970) 479 -2166 With a copy to : Town of Vail 75 South Frontage Road Vail, Colorado $1657 Attention: Town Attorney Facsimile No.: (970) 479 -2157 If to VAI The Vail Corporation diWa Vail Associates, Inc. 390 Interlocken Crescent Broomfield, Colorado 80021 Attention: Legal Department Facsimile No.: (303) 648 -6422 With a cook Vail Resorts Management Company P.O. Box 959 137 Benchmark Road Avon, Colorado 81620 Attention: Assistant General Counsel Facsimile No.: (970) 7542555 If to AVS: Arrabelle at Vail Square, LLC 390 Interlocken Crescent Broomfield, Colorado 80021 Attention: Legal Department Facsimile No.: (303) 648 -6422 With a cop} Vail Resorts Management Company P.O. Box 959 137 Benchmark Road Avon, Colorado 81620 Attention: Assistant General Counsel Facsimile No.: (970) 7542555 8. Governing Law: Miscellaneous. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado, without reference to conflicts of laws principles. Headings and captions contained herein are inserted as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Agreement or any provisions hereof Where required for proper interpretation of this Agreement, words in singular shall include the plural and the masculine gender shall include the neuter and the feminine, and vice versa. The terms "include" and "including" shall each be construed as if followed by the phrase "without being limited to" whether or not so stated 9. Counterparts This Agreement may be executed m counterparts, each of whieb shall constitute an original, and which together shall constitute one and the same agreement. [Balance of page intentionally left blm&) IN WITNESS WHEREOF, VAI, AVS and the Town have made this Snowmelt Agreement as of the day, month and year first above written. VAI THE VAIL CORPORATION, dlb/a VAIL ASSOCIATES, D C., a Colorado corporation Keith Fernandez, President and COO -VRDC STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acimowledged before me this day of 2009, by Keith Fernandez as President and COO -VRDC of The Vail Corpora 'on, d/b /a Vail Associates, Inc., a Colorado corporation. Witness my hand and official seal. My Commission expires: t - / C4 — 2,013 1K 5 [AVS signature blockfollows on new page] '� �o�oa� . +��H a� rd r. ru ►'rrtttK t A Kr. iel w lrp "MeM tt,: 1 � % 1M: i :11 1 %i% 7 flute: AVS ARRABELLE AT VAIL SQUARE, LLC a Colorado limited liability company By: Vail Resorts Development Company, its Managing Member B)r Keith Fernandez, President and COO -VRDC STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , cyx , 2009, by Keith Fernandez as President and COO -VRDC of Vail Resorts Development Company, the managing number of Arrabelle at Vail Squire, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission expires I .. N • 2a /S � TA N, 14 0tary Public . _�• a 9 signature block follows on next page] • 'v 0 coLO� tgtr. 7 _ L4 " O or TOWN STATE OF COLORADO ) } ss: COUNTY OF EAGLE } TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado <0 BY Stanley B. Zemler, Town Manager The foregoing instrument was acknowledged before me this (2g day of 2009, by Stanley B. Zemler as Town Manager of the Town of Vail, a mubLipal 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: A •. ' Q ' -C 2 � O' O �r : J • Q 'E Snowmen Zones (Mows immediately) Q law 0 r-90 mot 0 r-. Fp Yi i � �a R LJ s t t���t � ti � ti ��� Nk 41 -T -r 70WNOF VK • Dqw mmt of Public Worts & 7ransporrarion 1309 Msorn Drive Vail CO 81657 970 - 479.2158 Far: 970- 479 -2166 www.vaugov.corn PUBLIC WAY IMPROVEMEN"I S LETTER OF PROJECT ACCEPTANCE July 31', 2009 This letter acknowledges that Arrabelle at Vail Square, LLC, successor -in- interest to The Vail Corporation, d/hta Vail Associates, Inc. ("TVC') has completed the Work under the Project titled " Arrabelle Streetscape" (Off -Site Streetscape Improvements), as per the original and amended Core Site Development Agreements (the "Agreement) between TVC and the Town of Vail for the Arrabelle in a manner satisfactory to the Town of Vail and establishes a Warranty Period for all Work which begins on h& 31 ". 2009 and ends on h& 31�. 2011, with the exception of all 60mrn pavers within the Off -Site Improvements which will have a Warranty Period ending on July 31' 2014. The undersigned agrees that, if any portion of the Work or material proves defective during the Warranty Period, he shall replace any such defective material and remedy any such defective work to the satisfaction of the Town and shall defend, indemnify and save harmless the Town from all damages, claims, demands, expenses, and charges of every kind which may`wise as a result of any such defective material and workmanship during said period. It is the responsibility of Anabelle at Vail Square, LLC to accompany a representative of the Town of Vail on a Warranty walkthrough a minimum of one month prior to the end of the Warranty period if so requested, although additional wallcthroughs can occur at any time during the Warranty period Any and all Work deemed unacceptable by the Town will be noted and a procedure established to correct the Work. TOWN OF VAIL Thomas Kassmel, Town Engineer ARRABELLE AT VAII. SQUARE, LLC By: Vail Resorts De lo Co (Signature)