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HomeMy WebLinkAboutDeveloper Agreement 071406'7'kl 5r,quie- m aoEo Copy ~v r70/l04.1 FRONT DOOR DEVELOPMENT AGREEMENT pfte TKP THIS FRONT DOOR DEVELOPMENT AGREEMENT (this "Agreement") is made effective as of the _ day of , 2006, 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. Vail Associates, together with its corporate affiliate, Lodge Properties Inc., a Colorado corporation ("LPI"), is the owner of certain real property in the Town of Vail, Eagle County, Colorado, located at the base of Vail Mountain in Vail Village, Colorado, which is legally described on Exhibit A attached hereto (the "Property"). B. Vail Associates desires to develop the Property pursuant to (i) the Town's Ski Base/Recreation 2 (SBR2) zone district, which has been adopted and approved by the Town for the Property, (ii) a development plan given the approval of the Town's Planning and Environmental Commission (PEC) on September 22, 2003, which approval was affirmed on appeal by the Town Council on November 4, 2003 (the "Front Door Development Plan"), and (iii) certain design and development plans and specifications in furtherance of the Development Plan entitled "Vail's Front Door," dated July 6, 2005, and given the approval of the Town's C Design Review Board on July 20, 2005, as the same may be modified from time to time with the Town's approval (the "Design Plans"). The SBR2 zoning, Front Door Development Plan and Design Plans collectively provide for and govern a development project within the Property which may include, among other things, new spa facilities incorporated into The Lodge at Vail, residential townhomes/condominiums, a new skier services building and facilities, a ski club facility, a subterranean garage facility incorporating commercial loading and delivery facilities for both public and private use, including multiple loading bays (the "Loading/Delivery Facility"), and the relocation of the Vista Balm chairlift facilities within the Vista Balm ski yard (collectively the "Front Door Project" or "Project"). The SBR2 zoning for the Property, the Front Door Development Plan and Design Plans are sometimes referred to hereinafter collectively as the "Development Approvals." C. Vail Associates and the Town have mutually determined to make this Agreement in order to establish various agreements between them respecting the undertaking of certain public improvements and other measures related to the development of the Property pursuant to the Development Approvals. NOW, THEREFORE, in consideration of the above premises and the mutual covenants and agreements set forth herein, the Town and Vail Associates covenant and agree as follows: 1. Off-Site Public Improvements. As part of the Front Door Project, Vail Associates at its expense will be required to construct and provide certain off-site public improvements, i.e., to be located outside of the Property boundaries within the areas depicted on Exhibit B attached hereto, which improvements will include landscape irrigation, street lights, and related necessary subsurface support (the "Off-Site Improvements" or the "Public Project"). The 680793.9 RUISH Off-Site Improvements will be constructed in accordance with the Contract Documents and Specifications for the "Vail Village Streetscape Improvements" dated February 27, 2004, prepared by the engineers of record, and approved by the Town (the "Master Streetscape Specifications"), except as otherwise provided in Vail Associates' final building permit plan set for the Project which is approved by the Town, with the criteria and standards under such plan set to be consistent in scope with the Development Plan and Design Plans (the "Off-Site Plans"). That final building permit plan set (which may be further amended with the parties' approval) is currently constituted by those plans and specifications entitled "Vail's Front Door Construction Plans" dated January 20, 2006, revised in part on May 15, 2006, and May 23, 2006, and prepared by or under the authority of 42/40 Architecture, Inc., as the architects of record. In the course of establishing the Off-Site Plans, the Master Streetscape Specifications will be adjusted as necessary or appropriate to address the site-specific characteristics of the pertinent areas, as reasonably determined by the parties, and to otherwise conform to other applicable provisions of this Agreement. The Off-Site Improvements shall also be undertaken in accordance with and subject to the following provisions of this paragraph 1: (a) To the extent any Off-Site Improvements are to be located within or may affect private property or private property interests other than the Property, it shall be necessary for the Town to secure all requisite consents of the affected owners as a condition to Vail Associates being required to proceed with the construction and installation of the affected Off-Site Improvements. The completion of any Off-Site Improvements so affected will not act as a condition to the Town's provision of any building permit, certificate of occupancy or other approvals requisite to the development, occupancy, use and enjoyment of any portion of the Project to the extent the Town is unable to secure the requisite owner consents for those affected Off-Site Improvements in a timely manner, i.e., by the time that Vail Associates is to commence those Off-Site Improvements under its Project construction schedule. Vail Associates will not retain any obligation to complete any Off-Site Improvements for which the Town does not timely obtain requisite owner consents as aforesaid; however, for those Off-Site Improvements (and as Vail Associates' sole obligation in connection therewith), Vail Associates will post security for the completion of those Off-Site Improvements in amounts based on then-prevailing construction values in the market. The Town may then undertake the completion of those Off-Site Improvements by recourse to that posted security to pay construction costs incurred by the Town in order to complete the same, with the Town to bear any excess costs; provided, however, that (i) at such time, if ever, as the Town, acting in good faith, determines that it will not be able to secure the requisite third-party consents for any applicable Off-Site Improvements, then the security attributable to those Off-Site Improvements shall be remitted to Vail Associates, and (ii) to the extent those Off-Site Improvements are completed, and the resulting construction costs incurred by the Town are less than the amount of the posted security, then the remainder of the security will also be returned to Vail Associates. (b) As part of the Off-Site Improvements, Vail Associates will have the following responsibilities for snowmelt systems (all other responsibilities for providing snowmelt capacities outside of the Property will be borne by the Town): (i) Within the Gore Creek Drive right-of-way area lying immediately to the south of existing "Check Point Charlie" and depicted on Exhibit C attached hereto, and as part of the Town's public snowmelt systems, Vail Associates will Ask 690793.9 RUISH 2 APWA install wirsbo tubing, manifolds, and heating transmission lines to the manifolds for serving that area, and also a heat main commencing proximate to Check Point Charlie and terminating at the southerly boundary of that public right-of-way area, as depicted on Exhibit C. Vail Associates will not be responsible or obligated to furnish the heat source for the snowmelt systems within that area, or any ongoing operation or maintenance of those snowmelt systems (except to the extent that such operation and maintenance costs are ever imposed against the Property by virtue of a properly enacted and levied public real property tax or assessment of general applicability). (ii) Vail Associates will provide and integrate with a Project snowmelt system (i.e., one within the Property) and operate and maintain, on an ongoing basis, snowmelt systems within those portions of the sidewalk on the east side of Vail Road that are depicted on Exhibit C hereto, and the areas between One Vail Place and the Hill Building and between the Hill Building and Bridge Street Lodge that are depicted on Exhibit B (the "Integrated Off-Site Systems"). Since the Integrated Off-Site Systems will be physically and operationally integrated with a Project snowmelt system, and not the public snowmelt systems of the Town, Vail Associates may conform the equipment and improvements for the Integrated Off-Site Systems to the specifications employed for the applicable Project snowmelt system, rather than the Town's specifications. Vail Associates shall have exclusive rights and responsibilities for operation and maintenance of the Integrated Off-Site Systems. Vail Associates may elect to discontinue operation of the Integrated Off-Site Systems, and disconnect them from the Project system with which they integrate, if the Town ever discontinues operation of related public snowmelt systems of the Town. In addition, and notwithstanding their location in Town-owned property, the Project right-of-way connections between the Property and Vail Road will not constitute or be maintained by the Town as part of the Public Project. (iii) Following completion of the snowmelt improvements that Vail Associates is required to install pursuant to the foregoing provisions, Vail Associates will re-balance for operational purposes those portions of the Town's public snowmelt systems affected by those installations. (c) Subject to the express requirements under paragraph 1(b)(ii) above for the Integrated Off-Site Systems, and to the warranty obligations under paragraph 1(e) below, Vail Associates will only be responsible for the initial construction or installation of the Off-Site Improvements, and will not have any obligation or liability for the ongoing maintenance, repair or replacement of the Off-Site Improvements (all of which, with the exception of the Integrated Off-Site Systems, shall be dedicated to the Town as its property), or their operation or any utility consumption or other charges incurred in conjunction with their operation. (d) The parties agree that as a condition to the issuance of a temporary or permanent certificate of occupancy for any applicable portion of the Project, either (i) the Off- Site Improvements shall be substantially completed, or (ii) Vail Associates shall furnish the Town with security for the Off-Site Improvements that remain uncompleted in a dollar amount 680793.9 RUISH 3 equal to one hundred twenty-five percent (125%) of the estimated out-of-pocket, variable construction costs for completing the remaining Off-Site Improvements. If security is so provided to obtain the issuance of any temporary certificate of occupancy, Vail Associates will then be required to complete the remaining Off-Site Improvements within specified time periods that are established in accordance with prevailing customary construction requirements of the Town, and pursuant to a developer improvement agreement to be made between Town staff (acting through the Town of Vail Community Development Department ("Community Development")) and Vail Associates. The required times for completion will be subject to extension for delays caused by any event or circumstance beyond the reasonable control of Vail Associates, including, without limitation, labor strikes or lockouts, power shortages or failures, unavailability or shortages of materials, acts of God, acts of terrorism or war, inclement weather of such severity as to preclude continued work under prevailing industry standards, customary construction season limitations under prevailing industry standards, or any construction moratorium or other governmental action or inaction (collectively "Force Majeure Events"). In the event Vail Associates fails to complete the Off-Site Improvements in a timely manner in accordance with the foregoing provisions, then the Town at its election may undertake the completion of the remaining Off-Site Improvements, or portions thereof, and thereupon the Town may resort to the security furnished to recover the construction costs and expenses incurred by the Town in so undertaking any of the Off-Site Improvements. Upon the initial completion of the Off-Site Improvements, and the Town's initial acceptance thereof, any security (or the remainder thereof) previously provided shall be returned by the Town to Vail Associates. The completion of the Off-Site Improvements, or the posting of security therefor, will condition only the issuance of any certificate of occupancy, and not the issuance of any building permits or similar approvals for proceeding with the construction of the Project; and if that condition is satisfied for any Off-Site Improvements by the posting of security, the completion of the Off-Site Improvements will not be a requirement for the issuance of any temporary or final certificate of occupancy for any portion of the Project, except that such completion shall be a condition for the final certificate of occupancy that will be the last one issued for the entire Project as planned. (For appropriate Project work items other than Off-Site Improvements, Vail Associates may provide security for those work items, in accordance with this paragraph 1(d), for purposes of securing any applicable temporary certificate of occupancy, but the actual completion of such work items will be a condition to the issuance of the corresponding final certificate of occupancy.) The provisions of this paragraph 1(d) are subject to and do not limit the provisions of paragraph 1(a) above. (e) Notwithstanding the other provisions of this paragraph 1 indicating to the contrary, Vail Associates agrees that it shall warranty each of the Off-Site Improvements that it constructs for a period of two (2) years after the same has been initially accepted by the Town. The Town will act diligently to inspect and provide its acceptance of completed work items, at which time they shall be dedicated to the Town (with the exception of the Integrated Off-Site Systems). (f) Vail Associates will act reasonably to coordinate the installation of the Off-Site Improvements with other public improvements that may be undertaken by the Town, so long as such coordination does not cause any material delays in Vail Associates' Project construction schedule, any material increases in related development costs, or any other material interference with the Project development. Delays will not be regarded as material if they are 680793.9 RCFISH 4 customary for the ordinary course of prosecuting integrated public/private development projects within the Town. In any event, however, if any delays are incurred by Vail Associates in its construction schedule as a result of such coordination, then the completion/security requirements set forth under paragraph 1(d) above shall also be deferred for a commensurate period with respect to the Off-Site Improvements that are delayed, and no certificates of occupancy will be withheld as a result. In addition, when that deferred security is required to be posted or the deferred construction is completed, Vail Associates shall provide or bear the same in amounts based on construction values that would have been applicable had the delays not occurred (and the Town will bear any incremental costs over and above those construction values). The provisions of this paragraph 1(f) are subject to and do not limit the provisions of paragraph 1(a) above. (g) Any security required under this paragraph 1 shall be in the form of a performance and payment bond, or alternatively a letter of credit or other form of financial device reasonably acceptable to the Town. The Town will not impose requirements for the type of construction security that are more burdensome than those under the Town's generally prevailing practices. 2. Project Easements and Licenses. (a) In connection with the Front Door Project, Vail Associates will grant and dedicate to the Town certain public easements and licenses as set forth below: (i) Easements (A) for bicycle/pedestrian access, for the use of the public, over certain portions of the surface road to be constructed within the Project (the "Project Surface Road"), and of the paved bicycle/pedestrian path providing a connection from the Project Surface Road to Mill Creek Circle and running adjacent to the site of the new skier services facility (the "Pedestrian Path"), as generally depicted on Exhibit D hereto, and (B) for vehicular access, for the benefit of the Town, over those portions of the Pedestrian Path that are accessible from and lie to the south and southeast of Bridge Street, as such vehicular access is necessary for the Town to discharge its routine public maintenance responsibilities in those areas. The use and enjoyment of that pedestrian/bicycle easement under clause (A) will be subject to regulations and limitations imposed by Vail Associates in the ordinary course of skier and other operations conducted in relation to Vail Mountain, the Project, and other assets of Vail Associates and its affiliates, and may incorporate protections available under Colorado law for the grant of public recreational easements. In connection with any use of the maintenance access easement under clause (B), the Town will be solely obligated to bear any maintenance, repairs or replacements of the Pedestrian Path made necessary by resulting damage thereto, or any other liabilities resulting therefrom. (ii) An easement for emergency access over the Project Surface Road for purposes of furnishing emergency services to the various portions of the Project that can be accessed thereby (including the new residential townhomes/condominiums, the new ski club facility, and the Loading/Delivery APIN 680793.9 RCFlSH AWN, Facility), as well as the Vista Balm ski yard and existing One Vail Place, which easement shall expressly run to the benefit of bona fide third-party providers of emergency services, including law enforcement, fire protection, and ambulatory medical services. This emergency access easement will also extend to the access ways in and through the Loading/Delivery Facility, to the extent its physical configuration will accommodate such access. (iii) A license to the Town, for use by the public, for (A) non-exclusive use of the fourteen (14) loading/delivery bays as planned for and to be located within the Loading/Delivery Facility, (B) access between those bays and Vail Road via the access tunnel to be developed as part of the Front Door Project, and (C) access to and from those bays for hand cart/dolly deliveries via designated elevators and corridors within the Front Door Project. This license will be complemented by and subject to provisions assuring Vail Associates and its affiliates and designees of adequate loading/delivery capacities for serving operations and uses within the Front Door Project and other surrounding facilities owned or operated by Vail Associates or its affiliates (including, without limitation, The Lodge at Vail), and also in relation to Vail Mountain (including, without limitation, ski operations). In any case Vail Associates and its affiliates will have rights to priority use from time to time of not fewer than five (5) loading/delivery bays within the Loading/Delivery Facility (which is the number of loading/delivery bays required for the Project under generally applicable standards of the Town Code of the Town of Vail (the "Town Code"), and which will include the bay allocated to trash/refuse deposit). This grant of easement will further incorporate operating provisions that vest the management and administration of the Loading/Delivery Facility operations in Vail Associates or its designees, acting in their ordinary business judgment, including, without limitation, rights to establish use regulations to assure loading/delivery capacities as aforesaid and to otherwise protect persons and property (but without obligation to do so). Under those operating provisions, the Town will bear the costs of elevator maintenance, repair and replacement, and Vail Associates will bear applicable utilities charges. The operating provisions will also include terms for sharing, between Vail Associates and the Town, of other operating, maintenance and repair costs attributable to the Loading/Delivery Facility, which sharing shall be based equitably on relative use and also allocate to Vail Associates any such costs that materially exceed customary cost levels under generally prevailing managerial and operating practices for similar facilities (and the Town will reasonably cooperate with Vail Associates for purposes of establishing budgets for appropriate costs). The operating provisions will further allow for advisory input on operational matters that may arise pursuant to the functions under paragraph 13 below. (iv) In conjunction with the Project tunnel that provides access to the Loading/Delivery Facility and other areas, Vail Associates will install and maintain signage, traffic signals, and/or other traffic controls to address the limitations on access and signal distances that are associated with the configuration under the Design Plans and that affect egress at all points of access AWN 680793.9 RCFISH 6 to such tunnel, and to thereby promote safe traffic operations at those points to the extent feasible. (v) Easements for the construction, installation, maintenance, repair, replacement, modification, augmentation, use and enjoyment of public water, sanitary sewer and storm drainage facilities within or serving the Front Door Project, as depicted on Exhibit E-1 attached hereto, which easements may run to the benefit of Eagle River Water and Sanitation District or other pertinent utility suppliers, as applicable, as well as the Town, and with respect to storm drainage facilities, will allocate ownership and related functions (including maintenance) between public and private interests in conformity with Exhibit E-2 attached hereto. The Town agrees that it will also dedicate related or corresponding easements over any Town-owned properties as reasonably necessary or appropriate to accommodate those facilities. (b) The establishment of the easements and licenses required under paragraph 2(a) above shall be a condition to the issuance of any temporary certificate of occupancy for any portion of the Project. Those easements and licenses will be established pursuant to easement/license agreements prepared by Vail Associates and containing terms that do not conflict with the foregoing provisions. The easement/license agreements shall be made promptly on behalf of the Town by the Town Manager, with the advice of the Town Attorney, and when made shall be recorded in the real property records for Eagle County, Colorado. The requirements under paragraph 2(a) are cumulative with and without limitation on further requirements that the Town may impose for utility and drainage easements that are consistent with both the Project Approvals and generally prevailing construction practices of the Town, with the satisfaction of those easement requirements being a condition to the issuance of any temporary certificates of occupancy for the affected portion or portions of the Project. (c) On or before September 1, 2006, Vail Associates shall submit to Community Development a partial topographic map of the alleyway located on the east side of the Lodge at Vail commonly referred to or known as the "Wildflower Alley." The topographic information shall be used to determine the feasibility of providing hand cart delivery access via the Wildflower Alley. Vail Associates agrees to evaluate the opportunity for reconstructing the Wildflower Alley to minimize the grade and thereby provide improved hand cart delivery access to Gore Creek Drive. If it is determined by the Town and Vail Associates to be both feasible and advantageous to provide hand cart delivery access to Gore Creek Drive via the Wildflower Alley, then Vail Associates will revise the Off-Site Plans to provide for reconstruction of the Wildflower Alley as part of the Off-Site Improvements, with those revisions to be subject to the review and approval of Community Development. (d) The Town agrees that it will dedicate public utility easements over Town- owned properties as may be requested by Vail Associates and as may be reasonably necessary or appropriate to accommodate so-called "dry" utilities (e.g., gas, electric, telephone) serving the Front Door Project, including such utilities as configured on Exhibit F attached hereto. 3. "Check Point Charlie". In addition to the Off-Site Improvements, Vail Associates will provide at its expense a new "Check Point Charlie" building facility for purposes of V 680793.9 RCFISH 7 allowing the Town to regulate vehicular access from Vail Road and Willow Circle to Willow Bridge Road and Gore Creek Drive (the "Check Point Charlie Facility"). The Check Point Charlie Facility shall be of a size and located and designed in general conformity with the applicable criteria under the Front Door Development Plan, such location being subject to adjustment by PEC to establish the most suitable location for the Check Point Charlie Facility, determined reasonably on the basis of traffic circulation patterns and available alternative locations. This determination by PEC shall be made no sooner than one (1) year following the completion of the roadway and streetscape improvements on Vail Road/Willow Circle proximate to The Lodge at Vail which are part of the Off-Site Improvements. If the Check Point Charlie Facility is ultimately approved for the location set forth by the Front Door Development Plan (which location is substantially the same as its presently existing location), Vail Associates will also incorporate two (2) public restrooms within the Check Point Charlie Facility; the Town will provide and bear the cost, including service charges, for necessary utilities improvements and infrastructure and utilities service for those restrooms (except that Vail Associates will furnish customary connection lines for such service to existing utility mains in that vicinity). If an alternative location is determined, Vail Associates will not provide any restrooms. The Check Point Charlie Facility when completed will be dedicated to the Town and become part of the associated right-of-way improvements, and will be constructed in accordance with criteria and quality standards that are materially compatible with the Master Streetscape Plan. Vail Associates will proceed in the ordinary course of business to complete the Check Point Charlie Facility following the making of the requisite determination by PEC. 4. Project Platting. The Town acknowledges that various components of the Project AFN are designed to intersect or overlap with one another on vertical planes, which will create the need for three-dimensional platting in one or more circumstances in order to establish the Project components as discrete, severable property interests, transferable independently of one another. In furtherance thereof, the Town agrees that the applicable portions of the Property may be platted from time to time using a three-dimensional methodology. Following any three-dimensional subdivision plat that may precede the construction of pertinent improvements, Vail Associates will be permitted, as necessary for purposes of conforming the plat's horizontal and vertical boundaries and dimensions to the "as built" configuration of the improvements, to modify the plat by resort to the Town's administrative plat correction procedures under § 13-13-1, et SeMc of the Town Code, or any Town Code provision hereafter adopted in lieu thereof. 5. Special Events. (a) Subject to applicable restrictions of record, Vail Associates agrees to make the proposed Vista Bahn ski yard, which is planned as part of the Front Door Project and is depicted on Exhibit G hereto (the "Ski Yard"), available for community events, activities and other public uses, including, without limitation, special events sanctioned and contracted by the Town pursuant to Title 3, Chapter 6 of the Town Code ("Ski Yard Events"). The Town agrees that Ski Yard Events shall be materially consistent with historical standards and practices prevailing in the Vail Village community for recreational and entertainment uses, as those standards and practices may evolve over time, and before licensing or contracting for Ski Yard Events, the Town's Commission on Special Events ("CSE") shall reasonably consult with Vail Associates in furtherance of assuring compliance with this standard. The Town shall bear sole 680793.9 RCFISH responsibility for any claims made that any Ski Yard Events cause a violation of third-party property rights or interests which are associated with any real property located outside of the Property, and to the extent permitted by law, the Town will hold Vail Associates harmless and reimburse Vail Associates for any liability, loss, cost or expense, including attorneys' fees, that Vail Associates may incur in connection with any such claim. In addition, Ski Yard Events to be held during periods outside of the Vail Mountain ski season will be subject to Vail Associates' prior approval based on scheduling availability of the Ski Yard, as determined by Vail Associates in the ordinary course of business; any Ski Yard Events to be held during the Vail Mountain ski season will be subject to Vail Associates' prior approval, which may be withheld by Vail Associates in the exercise of its ordinary business judgment. Prior to December 6, 2006, the parties will mutually agree upon criteria and procedures, including the adoption of application and related documentary forms, for managing the process of determining and scheduling the Ski Yard Events to be held. Notwithstanding any other provisions of this Agreement that may indicate to the contrary, successors to Vail Associates in the ownership of portions of the Front Door Project outside of the Ski Yard will have no rights to object to the conduct of the Ski Yard Events pursuant to this paragraph 5, and will not be beneficiaries of or be entitled to exercise the rights of the Ski Yard owner under this paragraph 5. (b) Vail Associates in its discretion may require that any party conducting a Ski Yard Event (a "Ski Yard User") (i) provide general commercial or other liability insurance naming Vail Associates and its designees as additional insureds, contractual releases and indemnities of Vail Associates and its designees, clean-up and/or damage deposits, and reimbursement of direct costs incurred by Vail Associates or its affiliates in connection with any Ski Yard Event, and (ii) adhere to use limitations and regulations (including security measures) that Vail Associates, without obligation to do so, may impose in its ordinary business judgment to prevent any public or private nuisance or protect persons, property and business interests, or in furtherance of any other bona fide purpose. As a part of the re-development of the Ski Yard, and subject to applicable limitations and regulations of the pertinent utility supplier(s) and matters of record, Vail Associates shall provide an electrical power source and conduit for Ski Yard Events, in a reasonable capacity for such purposes. Vail Associates agrees to consult reasonably with the CSE regarding the location of those electrical improvements. Vail Associates may require that any Ski Yard User pay Vail Associates reasonable fees, as determined by Vail Associates in the ordinary course of business, for the use of those electrical improvements, including actual utility charges incurred for electrical consumption. Special event permits, if required by the Town to stage any Ski Yard Event, and any other coordination with CSE required by the Town, shall be the responsibility of the Ski Yard User, and Vail Associates shall have no liability or obligation in connection therewith. (c)' As a condition to holding the applicable Ski Yard Event, the requirements under paragraph 5(b) shall be included in a governing written agreement made by the Ski Yard User on terms satisfactory to Vail Associates. Those requirements are solely for the protection of Vail Associates, and Vail Associates will have no obligation to impose those requirements for the benefit of the Town or any other party. The holding of Ski Yard Events shall not be construed as or constitute any public dedication, in whole or part, of any ownership or other interests in and to the Ski Yard, and Vail Associates shall retain all such interests. L 660793.9 RCHSH 9 (d) The Town agrees to exercise its law enforcement powers in the ordinary course of its governmental operations to the end of regulating Ski Yard Events in a manner consistent with the Town's prevailing law enforcement practices and policies, and also to assist in implementing any controls or regulations instituted by Vail Associates that are consistent with the Town's prevailing law enforcement practices and policies. 6. Public Art. Vail Associates will provide $1,000,000 in public art in conjunction with the development of the Front Door Project. Vail Associates will determine the type and location of the art to be provided, subject to obtaining and giving reasonable consideration to input from the Vail Arts Board (the "Art Board"). Such input will be provided at a regularly scheduled public meeting of the Art Board. The Town may require that Vail Associates furnish an initial proposed conceptual plan for the public art to the Art Board prior to the issuance of any building permits for the Front Door Project (for this and other purposes under this Agreement, building permits will not include grading or utility permits or similar approvals authorizing any site work). The timing for the installation of the public art will be incorporated by Vail Associates into the Front Door Project construction schedule in the ordinary course of business and in accordance with generally prevailing construction practices. 7. Employee Housing. Vail Associates will be obligated to provide employee housing sufficient to accommodate nine (9) employees in accordance with presently prevailing Town standards and regulations; however, this employee housing requirement may be initially satisfied by the provision of temporary employee housing facilities in accordance with the terms of the Core Site Development Agreement dated as of November 8, 2004, and made among the Town, Vail Associates and Vail Reinvestment Authority. The provision of employee housing in accordance with the foregoing provisions will be a condition to the issuance of any certificates of occupancy for the Project. 8. Road Impact Fee. The Town acknowledges and agrees that Town requirements for road or traffic impact fees attributable to the Project will be fully satisfied by the completion of the Loading/Delivery Facility and Vail Associates' undertakings in this Agreement for the Off-Site Improvements. 9. Scope of Obligations. This Agreement sets forth all public or other improvements, dedications and exactions that may be required of Vail Associates in relation to the undertaking of the Front Door Project, and satisfies all requirements under the Development Approvals and the Town Code (including, without limitation, 13-3-8 and 13-3-14) for the provision of public improvements, dedications or exactions, and related agreements and security, and also for development-related fees (except for ordinary building permit fees and other charges provided for under present Town Code provisions that are not otherwise addressed herein). The 3-year period under Code § 13-3-17, as applied to any plat now or hereafter inclusive of the Property, will be extended as necessary to expire no later than the date that Vail Associates is required to complete the applicable Off-Site Improvements pursuant to paragraph 1 hereof, and will not apply if Vail Associates has provided security in accordance with paragraph 1 for the Off-Site Improvements that remain incomplete. 10. No Oblijzation to Develop. Notwithstanding any implications to the contrary under the other provisions of this Agreement or under the Town Code or other rules, regulations co , 680793.9 RUISH 10 ® or standards of the Town, Vail Associates (i) does not and will not have any obligation to undertake and develop the Project or any portion thereof, (ii) will have no liability to the Town or to any other party for any failure to develop the Project or any portion thereof, and (iii) will not have any obligation to complete or satisfy any dedications, public improvements or other requirements under this Agreement independently of the commencement and undertaking of the pertinent portions of the Project; provided, however, that once Vail Associates commences the construction of habitable building improvements for any portion of the Project, Vail Associates will be bound to construct and complete the Loading/Delivery Facility in the ordinary course of business. 11. Project Integration. The Town confirms and agrees that the commencement of construction for any one component of the Project will be sufficient to establish common law vested rights for other components of the Project as well as the component being undertaken, notwithstanding that separate building permits may be issued therefor, it being acknowledged that the various components of the Project are designed and intended to form one integrated development, and for this purpose shall not be viewed as separate projects or phases. The Town hereby ratifies, re-adopts and confirms the approval of the Development Plan. 12. Liability of Successors. The provisions hereof touch and concern and run with the ownership of the Property; for this purpose, Vail Associates shall be treated as if it is the holder of the ownership interests of LPI in and to portions of the Property, and will be liable for the obligations hereunder that are attributable to those ownership interests of LPI. However, any successor owner to Vail Associates or LPI with respect to any portion of the Property or Project will not have any liability for or be subject to or encumbered by any of Vail Associates' obligations hereunder, except to the extent such successor (i) succeeds to Vail Associates' position as the owner/developer of the applicable portion of the Project before it is initially completed (as evidenced by the issuance of any certificate of occupancy therefor), or (ii) otherwise accepts an express assignment of and expressly assumes any or all obligations of Vail Associates hereunder by recorded instrument. Upon any record assignment to and assumption by any successor owner of any of Vail Associates' obligations hereunder, Vail Associates shall be released from all further liability for those obligations so assumed (and any assuming successor will in turn have the ability to secure its own release of liability in the same manner pursuant to an assumption by another subsequent transferee). The Town agrees to cooperate reasonably and diligently in furnishing recordable releases and terminations of this Agreement, or for discrete portions of the requirements hereunder, as and when the relevant requirements have been satisfied. Subject to the foregoing provisions, (i) this Agreement shall be binding upon and inure to the benefit of Vail Associates and its successors and assigns, and (ii) references herein to "Vail Associates" shall be construed to include its successors and assigns from time to time. 13. Advisory Committee. In the discretion of the Town, an advisory committee may be created to establish a forum for potentially affected parties to propose, critique and make recommendations to the Vail Town Council concerning operational and management solutions for loading/delivery and vehicular transportation and circulation issues, if any, that arise from the use of the Front Door Project. If established, the committee will be comprised of representatives from the Town (i.e., the Town Manager or the Manager's designee), Vail Associates or its affiliates, and other potentially affected parties. The committee will convene on an "as needed" 680793.9 RMSH I I ® basis if and when pertinent issues arise. The committee's function will be solely advisory and will be non-binding in nature; the committee will have no decision-making authority; and the provisions and application of this paragraph 13 will not be construed to impose any obligation on Vail Associates or its successors. 14. Notices, Business Days. Any notice required or permitted under the terms of this Agreement 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 Vail Associates: c/o Vail Resorts Development Company Post Office Box 959 137 Benchmark Road Avon, Colorado 81620 Attention: Jack Hunn, Vice President of Design and Construction Fax No.: (970) 845-2555 Phone: (970) 845-2359 with a copy to: c/o Vail Resorts Development Company Legal Department Post Office Box 959 137 Benchmark Road Avon, Colorado 81620 Attention: Julie Stencel, Esq. 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 680793.9 RUISH 12 C 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. 15. 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. 16. Exhibits. All Exhibits to this Agreement which are referenced by the provisions hereof as being attached hereto are deemed incorporated herein by this reference and made a part hereof. 17. Entire Agreement. This Agreement and the other contracts or agreements specifically referred to herein 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. The parties specifically acknowledge and agree, however, that all conditions imposed by PEC on the approved Front Door Development Plan will remain in effect except to the extent satisfied or modified by the terms of this Agreement. 18. Estoppel Certificate. At any time and from time to time (but upon not less than ten (10) days' prior notice by Vail Associates), the Town shall execute, acknowledge and deliver to Vail Associates and its designees an estoppel certificate in writing certifying that this Agreement is unmodified and in full force and effect (or if there have been modifications, that this Agreement is in full force and effect as so modified, and stating the modifications); that Vail Associates is not in default of any obligations, conditions or requirements hereunder, except as otherwise specified in the response; and such other matters and information related to this Agreement as may be reasonably requested. Failure of the Town to furnish its response within the requisite 10-day period shall be conclusive upon the Town that the matters requested for disclosure are in the status most favorable to Vail Associates, as determined by Vail Associates. 19. 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 c 680793 9 RCFISH 13 ASK, 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. 20. Town Council Approval. This Agreement shall not become effective until the Town Council's adoption and approval of this Agreement by resolution. As part of that resolution, the Town Council will designate and authorize the Town Manager to execute and deliver this Agreement on behalf of the Town. The effective date of this Agreement shall be the date upon which this Agreement has been executed and delivered by Vail Associates and so executed as set forth above by the Town Manager. 21. 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. No modification or amendment to this Agreement shall have any force or effect unless embodied in an amendatory or other agreement executed by Vail Associates and the Town, with the Town's execution to be authorized by Town Council resolution. However, if, on behalf of the Town, the Town Manager, after consultation with the Town Attorney, determines that any proposed amendment or modification constitutes a minor change, then the Town Manager shall have the unilateral power and authority to execute and deliver such amendment or modification on behalf of the Town and to bind the Town thereby. In any event the Town Manager will have the unilateral power and authority to execute on behalf of the Town and furnish any estoppel certificates, approvals or other documents or communications contemplated by the provisions of this Agreement. 22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 23. 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 Agreement. 24. No Third Party Beneficiary. Except for the affiliates of Vail Associates, who are expressly intended to be third-party beneficiaries of Vail Associates' rights hereunder, no third party is intended to or shall be a beneficiary of this Agreement, nor shall any such third party have any rights to enforce this Agreement in any respect. For all purposes under this Agreement, Vail Associates' "affiliates" will include any corporation or entity which by virtue of direct or indirect majority ownership interests is controlled by, controls, or is under common control with Vail Associates. c 680793.9 RUISH 14 25. 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. 26. Recording; Third-Party Interests. This Agreement shall be recorded in the real property records for Eagle County, Colorado. The terms of this Agreement, and the relative rights and obligations of the parties, will be subject to and qualified by the effect of pre-existing titles and interests in favor of third parties pertaining to the applicable properties. 27. No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Vail Associates, and nothing contained in this Agreement shall be construed as making the Town and Vail Associates joint venturers or partners. 28. 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] C C 680793.9 RCF7sH 15 IN WITNESS WHEREOF, the Town and Vail Associates have made this Front Door Development Agreement effective 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 State of Colorado ATTEST: By: Name: Title: Town Manager Lorelei Donaldson, Town Clerk STATE OF COLORADO ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 200_, by 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: Notary Public [Signature Blocks Continue on Following Page] L.M 680793 9 RCFISH 16 0 VAIL ASSOCIATES: THE VAIL CORPORATION, d/b/a VAIL ASSOCIATES, INC., a Colorado corporation By: Name: Title: STATE OF COLORADO ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of 200_, by as of THE VAIL CORPORATION, d/b/a VAIL ASSOCIATES, INC., a Colorado corporation. Witness my hand and official seal. 10 My commission expires: Notary Public [Joinder of Lodge Properties Inc. follows on next page] N 680793.9 RCPISH 1 / n JOINDER OF LODGE PROPERTIES INC. LODGE PROPERTIES INC., a Colorado corporation ("LPI"), as the owner of certain portions of the Property, agrees that its ownership interests in the Property shall be bound by and subject to the terms of this Agreement, and for that purpose references in this Agreement to Vail Associates will include LPI, but LPI will not have any personal liability for the obligations of Vail Associates hereunder. LODGE PROPERTIES INC., a Colorado corporation By: Name: Title: E* STATE OF COLORADO ss: COUNTY OF acknowledged before me this day of as The foregoing instrument was , 200_, by of Lodge Properties Inc., a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public c 680793.9 RCFISH 18 Exhibit Note: Drawings included within the Exhibits to this Agreement may be available in colored and/or larger or otherwise more legible versions maintained on file at the offices of the Town of Vail and/or Vail Associates. C 690793.9 RCFISH 19 0 F.XHIRIT A Legal Description of the Property PARCEL 1 LOTS 1 AND 2, MILL CREEK SUBDIVISION, ACCORDING TO THE PLAT THEREOF RECORDED NOVEMBER 6, 2000, AT RECEPTION NO. 743366, COUNTY OF EAGLE, STATE OF COLORADO PARCEL 2 LOTS 1 AND 4, SECTION 8, TOWNSHIP 5 SOUTH, RANGE 80 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO, AS CONVEYED TO THE VAIL CORPORATION BY UNITED STATES PATENT RECORDED APRIL 26, 2006, AT RECEPTION NO. 200610676, AND ALTERNATIVELY DESCRIBED AS: LOTS 1 AND 4, SECTION 8, TOWNSHIP 5 SOUTH, RANGE 80 WEST, OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO, AS ESTABLISHED BY THE DEPENDENT RESURVEYS AND SURVEYS COMPLETED BY THE UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT, DATED FEBRUARY 3, 2005 (LOT 4), AND DECEMBER 30, 1988 (LOT 1) N 680793.9 RUISH C EXHIBIT B General Depiction of Off-Site Improvements (see attached) .J 0 680793.9 RCFISH 0 C ,r.irs EXHIBIT B ~T ~7 T [~'7T~]^ QOOt1 ~4, ~aJ JI11VL, ~ ~ a ~D~ ~n v1 a (,s 1 1 1 \ , 11 \ i ri\ i '1 _ A I: is \ ~ PO°e De 9 I 3a:~>ils ~r,,ae \ ~ f as oae f' , °a b 1 '~yfQA ' 17f. cGG~ ao sb oa~~Gy'b a i BR+ tow 00A°OQbOA4 ba P O O to ° O y/'_ 4 6 O Oyi ~ ~ ba , DA ¢w i ° p 0 OO D wr- ~ }y~ D p 6a ba OOagDOD ~t , b ~ ~ 1 _ O aD pas /I/{JJ ~ [ e. bbyp , ° OGa U 1 f W-Is ` x c 1 t It u ~ --'t' `bQ.t sp~ en" ~ ~ 1 e D r 1 i on °aao ao ° e I -71L -J- 41 N 3 ~ 4-d 4-J O I N P ~4 (3) O S'+ co Cd O -H 4) rl U 1-I +i O ca aU) v v a) r-I •n 4 ca °a > a 4a O ~ U CJ ~ f--1 0Q) v '-•I N L QJ m a~i 4-1 CO U) J-J N N •rl m a to v U) o cn d U G1 rl N ca 1•i a L N O RI N •r.l W Ul 4-4 O .C 4a H ca f ti ai = g fibi 59 E S 3R 000o a 00 0 00 aAA 000 °o 000 f t .7 EXHIBIT C Depiction of Gore Creek Drive Snowmelt Areas (see attached) c 680793.9 RCFISH c 1E xooa zoA s,11Vn EXHIBIT C I z nri tt 4 }t f~ ' i E. F~Pc~ -,~1/\:~ ~J y, ~~..i~332ci ~L,7 ~ I '~~1i.ti,•:-~ t• ! l ~fi~~i > ~ ~ ; ~ y ~*s ti { fi` ~ *R~ s~~ :t Wit; ~ k ~ ~ € e ~ e t~ I i S5 ~s ~ s~ wtr ~~`k )1~ i a ~ 3~i ~ it • 6 1 t- ~ t` > k; a tai i t 4 a ~ 3 ,F NSF eta .dr a ~ I 1~ 01 1: Y p fill $ a z ay, . a az. r o~ ti~ x a b t R Ii I~3~. 4 a~W Nw ° g t ff$ a bt N 4- 6 oozyy 5 I t 4 lAr 1\ 1 CD Ch Cl Z 1 i O y~ n .J 2 L': \ Fi v 11 It a N our Z .,.,~-e,-.. •~Y'-'., ~ S `r' a¢ ; C7 f 1 W a = o t „ AN, J { F 0 EXHIBIT D Depiction of Bicycle/Pedestrian Access (see attached) H 680793.9 RCF7SH L41 C7 a EXHIBIT D 3 A ril4 b jig + r ~IT~ b N si ~ Y ( pi~ u t $ Ib ca 1_ y f _ 1 P L4 1 ( co n ji co En 41 N n Y, K N L4 PL4 'g ,s „a ! xFR tit ~b / .may! , m: ( 3 t r y~I m -1 +S4 p. -K 'K 7• Sy f~a i a i a / n 71 h . } y+' Q x t I t m H v W A Q 0 O s a O rl a 1\ 3 \I ~ f f"A c EXHIBIT E-1 Depiction of Water, Sanitary and Drainage Easements (see attached) 0 680793.9 RCF7SH EXHIBIT E-1 i~ 'y „e s y~ A ~ y / B l G , lam' ~ 3t ~ 1 lit I 01 PEW A 19 1'. [*_,j EXHIBIT E-2 Storm Sewer Ownership Plan (see attached) 0 680793.9 RCFISH N ~61 f I 4 s C 0a VA EXHIBIT E-2 E ~ E Q dooci ii'o-Aa s,-ii F~l EXHIBIT F Depiction of "Dry" Utility Easements (see attached) N 680793.9 RCFISH C . Ali ` M Y t ~t.,rs T i EXHIBIT F v Cyil a L , n c _ M lw~ "c t J I. 1~ i jyt m apr i ~w $ ~Y e: Ole E J9 V, U !{EE(~ ~ f G EXHIBIT G Depiction of Ski Yard (see attached) E0 G 680793.9 RCFISH EXHIBIT G C; c L l r= i cl .1. Cn 1 ~I ~ T oo~ R LUl u'~ ~ki ~A t 11 t`°_'a''k t A f i 1 i t ' c~ 0 0 ~ V v L 7 v b n O a e 0 o tiG C C 1`+O C C ~L h---I x T Lin COVE HARBOR PARTNERS, LLG ONE DOCK STREET, SUITE 400 STAMFORD, CONNECTICUT 06902 DOUGLAS T. TANSILL TELEPHONE 203-973-1347 FACSIMILE 203-406-1932 . ~2 75' .erv~~oyv,~o..~ c ' c A-Z George Ruther - VFD-Storm Sewer Page 1 ~ From: Tom Kassmel To: herbst@alpinecivil.com; Richard Rick Caudel Date: 08/30/2006 5:42:45 PM Subject: VFD-Storm Sewer Bob/Rick The Storm Sewer relaignment is approved for the Vail Front Door West storm sewer as per the plans plotted on 8/24/06. You may proceed with construction and removing the specified trees, per plan, and those that are "dead". The approval is based on the condition that a revegatation plan, that compliments the area and mitigates the tree losses in this area, is submitted and approved prior to TCO of the Chalets. Thanks Thomas Kassmel, P.E. Town Engineer Town of Vail Public Works Department 1309 Elkhorn Dr. Vail, CO 81657 (970) 479-2235 CO CC: George Ruther 0b S 'R• G is 30n8ds SS~~~ b Nl W Dia zc o / 3onads 0!0 .09'0 Z N3dSV~ D!o Sz,o N3dSV 30f%d5 0~a .Sz'0 3On8dS D1a •14'0 310dOCP 010 .69'0 ~•L~] 310dOOl 3-IOdO0l 310dO0T..,.. OV30 OV30 aV30 OV30 ® 3lOdOOI t Z 01O ,96'0 3lOd0a1 310d9a1 OV30 aV30 F~ O o!O Sl'0 8Ld 3~naas Z 00 .62'0 N3dS ' 01a ,l9' f N3dStl W 3onHds ~N3tI'o! 4Z0-Z 0- _ Obp~ is C> ~I'' ~Ob C, 40~ Vail's Front Door DRB Meeting 11/1/06 Attendees: Jack Hunn - VRDC Jarvie Worcester - VRDC George Ruther - Town of Vail Greg Lockridge - 4240 Architecture Agenda Items: J, Chalet Cooling Tower Vent "DViDe- 1 p~l,'1 Chalets: Unit 1 Level 2 We would like to change sliding doors to French doors and add hot tub at exterior terrace. ✓ Level 3 We would like to change sliding doors to French doors at east elevation. Level 4 We would like to change sliding doors to Nana doors at east elevation. ✓ Unit 2 Level 2 We would like to add hot tub at exterior terrace. ✓ Unit 3 t . Level 1 We would like to add below grade window at north wall. 'Apv Level 2 We would like to add hot tub at exterior terrace and add exterior door and window off of bedroom. Unit 10 Level 1 We would like to move stair part way out of building envelope into the access drive w/ protecting bollards and add window adjacent to this stair. ✓ Level 2 We would like to add window below grade at west wall within the landscape drop down as well as window well. V Unit 12 Level 2 We would like to add hot tub at exterior terrace. ✓ Unit 13 Level 4 We should review door and window at entry and would like to delete window next to bar- b-que. ~ V694-1 Planning and Building dept. approval follow up: Unit 1 Level 1 add shower to powder room Unit 2 1/ Level 1 add shower to powder room Unit 3 Level 1 add shower to powder room. Level 2 add bedroom and bathroom Unit 13 Level 1 Add shower / spa. Y' Level 2 Add bedroom 1/ ld7"Gr-` 616.