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HomeMy WebLinkAboutP3 DocumentsMEMORANDUM TO: Lorelei Donaldson FROM: Mary Ann Best DATE: June 16,2004 SUBJECT: Documents for P3 Underground Parking Garage Attached are our copies of the documents listed below that relate to the construction of the P3'. underground parking garage located where the old P3 & J parking. area was near Hanson Ranch Rd. Please place in the fire safe. DOCUMENT LIST - P3 UNDERGROUND PARKING GARAGE ® Ordinance 11, 2004 -Vacating a subterranean portion of Hanson Ranch Road contiguous to Lot P-3 • Amended Rule and Order - Consent to Entry for Vail Assoc. Holdings, Ltd. • Protective Covenants for Lot P-3, Vail Village 5th Filing Special Warranty Deed - Vail Reinvestment Authority to Vail Associates Holdings, Ltd. a Bargain and Sale Deed -Town of Vail to Vail Assoc. Holdings, Ltd. • Lot P-3 Development Agreement - Town of Vail to Vail Assoc. Holdings, Ltd. • Bargain and Sale Deed - The Vail Corp. to Town of Vail - a parcel within. Tract E Construction Easement Agreement- Christiana at Vail Condo Assoc, Ince to Vail Assoc. • Construction Easement Agreement - Villa Valhalla Assoc. to Vail Assoc. Holdings, Ltd. Attachments xc: Greg Hall OTA file #154 DOCUMENT LIST - P3 UNDERGROUND PARKING GARAGE • Ordinance 11, 2004 - Vacating a subterranean portion of Hanson Ranch Road contiguous to Lot P-3 • Amended Rule and Order - Consent to Entry for Vail Assoc. Holdings, Ltd. • Protective Covenants for Lot P-3, Vail Village 5th Filing • Special Warranty Deed - Vail Reinvestment Authority to Vail Associates Holdings, Ltd. • Bargain and Sale Deed - Town of Vail to Vail Assoc. Holdings, Ltd. • Lot P-3 Development Agreement - Town of Vail to Vail Assoc. Holdings, Ltd. • Bargain and Sale Deed - The Vail Corp. to Town of Vail - a parcel within Tract E • Construction Easement Agreement - Christiana at Vail Condo Assoc, Ince to Vail Assoc. • Construction Easement Agreement - Villa Valhalla Assoc. to Vail Assoc. Holdings, Ltd. 878452 I I Page: 1 of 5 05/26/2004 03:59P Teak J Simonton Eagle, CO 289 R 26.00 D 0.00 ORDINANCE NO. 11 Series of 2004 AN ORDINANCE VACATING A CERTAIN PART OF THE SYSTEM OF PUBLIC WAYS OF THE TOWN OF VAIL, COLORADO, LE., A SUBTERRANEAN PORTION OF HANSON RANCH ROAD CONTIGUOUS TO LOT P-3, ACCORDING TO THE SUBDIVISION PLAT ENTITLED "LOT P-3, VAIL VILLAGE FIFTH FILING"; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town of Vail, acting through its applicable departments and agencies, including the Director of Public Works and the Director of Commukty Development, have found and determined that the public use, convenience and necessity no longer require within its system of public ways that certain subterranean portion of public right-of-way legally described as a three-dimensional area or space on. Exhibit A attached hereto and incorporated herein by this reference (the "Vacated Way"), which Vacated Way constitutes a portion of Hanson Ranch Road contiguous to Lot P-3, according to the subdivision plat entitled "Lot P-3, Vail Village Fifth Filing," and recorded March 17, 2004, at Reception No. 871030 ("Lot P-3"); and WHEREAS, the Town of Vail's vacation of the Vacated Way 'is necessary to accommodate subterranean garage facilities that Vail Associates Holdings, Ltd. ("Vail Holdings"), as the owner of Lot P-3, is constructing as part of a real estate development project on Lot P-3 (the "Project"), which subterranean garage facilities will extend into the Vacated Way; but for the vacation ofi the Vacated Way (title to which will vest in Vail Holdings as the adjoining owner), Vail Holdings could not proceed with the development of the Project; and WHEREAS, in order to appropriately confine the use of the Vacated Way to the Project, the Town of Vail will retain a right of entry into the Vacated Way if its use in connection with the Project ceases, which right of entry shall be in accordance with and subject to the applicable terms of a bargain and sale deed to be executed and delivered by the Town to Vail Holdings (with Vail Holdings' joinder), and confirming the vesting of title to the Vacated Way in Vail Holdings (hereinafter the "Vacation Deed"); and WHEREAS, the Vacation Deed will further contain provisions governing the mutual use and enjoyment of the Vacated Way and the remainder of Hanson Ranch Road in certain respects; and WHEREAS, the Town of Vail gave and published proper and timely notice of the date and time of the public hearing for Town Council's consideration of the adoption of this Ordinance, and Town Council duly held and conducted such hearing in accordance with applicable laws. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO as follows: Section 1. The Vacated Way, as legally described as a three-dimensional parcel of real property on Exhibit A attached hereto, is hereby vacated by the Town of Vail, and no longer constitutes part of the system of public ways of the Town of Vail; provided, however, that this vacation shall be Ordinance No. 11. series of 2004 \)-1,7 1-7 &(2, 3 subject to the right of entry in favor of the Town of Vail and other terms that are to be set forth in the Vacation Deed. Section 2. In accordance with the laws of the State of Colorado, title to and ownership of the Vacated Way shall vest in Vail Holdings, which is the owner of the real properties abutting the. Vacated Way. By way of confirmation of and without limiting the effect of the foregoing, the Town of Vail shall proceed to execute and deliver to Vail Holdings, with Vail Holdings' joinder, the Vacation Deed which, among other things, shall evidence the vesting of title in the Vacated Way in Vail Holdings, and also reserve to the Town of Vail a right of entry under appropriate circumstances where the Vacated Way is not used or ceases to be used for the Project. Town Council hereby authorizes and directs the Town Manager, on behalf of the Town of Vail, to execute and deliver the Vacation Deed to Vail Holdings (with Vail Holdings' joinder) containing such terms and provisions as the Town Manager, after consultation with the Town Attorney, considers to be necessary or appropriate in furtherance of this Ordinance. Section 3. If any part, section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance; and the Town Council hereby declares it would have passed this Ordinance, and each part, section, subsection, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, clauses or phrases be declared invalid. Section 4. The Town Council hereby finds, determines and declares that this Ordinance is necessary and proper for the health, safety and welfare of the Town of Vail and the inhabitants thereof. Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. 878452 Page: 2 of 5 Teak J Simonton Easle, CO 2B9 R 26.00 5/26/200400 3:59P Ordinance No. H, Sereisof2004 2 l f INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL, this 6th day of April, 2004. A public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Vail, Colorado, on the 20th day of April, 2004, in the Municipal Building of the T n of Va' ney Slifer, May ATTEST: N OF.~qd EAL oreI4 Donaldson, `town Clerk a 04 ORN INTRODUCED, READ, AND ENACTED ON SECOND READING AND ORDERED PUBLISHED IN FULL the 4c" day of May, 2004. Rodney fifer, Mfiyor" ATTEST,: ei Ponaldson, own Clerk SEAL s-78452 '~IIfPIIVIII''~,IIIII'III"1CIIIII',II!JC'Il;llp~lro:;,~o;a:e;,,m Ordinance No. 11, Sercis of 2004 3 I!INIIlullilllill1111111111111!1IIII!Ili1111!GIIIIII 8' 8 ~5z,.9P Teak J Simonton Eagle, CO 289 R 25. 00 D 0. 00 EXHIBIT A Legal Description A Parcel of land located in the Right-of-Way of Hanson Ranch.Road, Vail Village, Fifth Filing, according to the Plat thereof recorded November 12, 1965, at Reception No. 102538 in the office of the Clerk and Recorder, County of Eagle, State of Colorado, being more particularly described as a three-dimensional area bounded by upper and lower surfaces whose perimeters are described below, and bounded on its sides by vertical surfaces connecting the perimeters of those upper and lower surfaces: For both the upper and lower surfaces, beginning at the Southeasterly corner of Lot P-3, according to the subdivision plat entitled "Lot P-3, Vail Village Fifth Filing" (recorded March 17, 2004, at Reception No. 871030), whence the Northeast corner of said Lot P-3 bears N 07°14'02" W a distance of 133.48 feet, which constitutes the Basis of Bearing for this legal description, and with elevations for this legal description being based on HARN station "Spraddle", having an elevation of 8287.82 feet (NAVD 88); Lower Surface Boundary: Beginning at said Southeasterly Corner of said Lot P-3; thence along the Northerly Right-of- Way line of Hanson Ranch Road, said line being the Southerly boundary line of said Lot P-3, 32.76 feet along an Are. of a Curve to the right, having a Central Angle of 15°37'04", a Radius of 120.17 feet, a Chord which bears N 76°29'43" W, 32.66 feet to a point on said Southerly boundary line of said Lot P-3; thence vertically downward to a point at an elevation of 8153.0 feet, being the True Point of Berg for the lower surface boundary; thence S 82°45'58" W a distance of 36.79 feet to a point at an elevation of 8153.0 feet; thence N 53°15'06" W a distance of 52.41 feet to a point at an elevation of 8153.0_ feet; thence ascending vertically to a point at an elevation of 8155.0 feet; thence N 53°15'06" W a distance of 28.00 feet to a point at an elevation of 8155.0 feet; thence ascending vertically to a point at an elevation of 8156.5 feet; thence N 53°15'06" W a distance of 49.50 feet to a point at an elevation of 8156.5 feet; thence N 09°25'45" E a distance of 16.18 feet to a point at an elevation of 8156.5 feet; thence 41.34 feet along an Are of a non-tangent Curve to the right having a Central Angle of 20°04'33", a Radius of 117.98 feet, a Chord which bears S 63°08'35" E a distance of 41.13 feet to a point at an elevation of 8156.5 feet; thence S 53°06' 19 E a distance of 16.42 feet to a point at an elevation of 8156.5 feet; thence downward vertically to a point at an elevation of 8155.0 feet; thence S 53°06' 19". E a distance of 28.00 feet to a point at an elevation of 8155.0 feet; thence downward vertically to a point at an elevation of 8153.0 feet; thence S 53°06' 19" E a distance of 46.58 feet to a point at an elevation of 8153.0 feet; thence 32.68 feet along an Arc of Curve to the left having a Central Angle of 15°34'52", a Radius of 120'.17 feet, a Chord which bears S 60°53'45" E a distance of 32.58 feet to a point at an elevation of 8153.0 and the True Point of Beginning for the lower surface boundary. Upper Surface boundary_ Beginning at said Southeasterly Corner of said Lot P-3; thence along the Northerly Right-of- Way line of Hanson Ranch Road said line being the Southerly boundary line of said Lot P-3, 32.76 feet along an Arc of a Curve to the right, having a Central Angle of 15°37'04", a Radius of C 120.17 feet, a Chord which bears N 76°29'43" W, 32.66 feet to a point on said Southerly 613848.3 RUISH 05/13/04 10:01 AM boundary line of said Lot P-3; thence vertically downward to a point at. an elevation of 8191.0 feet, being the True Point of Beginning for the upper surface boundary; thence S 82°45'58 W a distance of 36.79 feet to a point at )an elevation of 8191.0 feet; thence downward vertically to a point at an elevation of 8190.0 feet; thence N 53°15'06" W a distance of 10.56 feet to a point at an elevation of 8189.9 feet; thence N 53015'06 W a distance of 28.49 feet to a point at an elevation of 8189.9 feet; thence N 53°15'06" W a distance of 28.51 feet to a point at an elevation of 8188.2 feet; thence N 53°15'06" W a distance of 62.35 feet to a point at an elevation of 8184.0 feet; thence N 09°25'45" W a distance of 16.18 feet to a point at an elevation of 8184.0 feet; thence 41.34 feet along an Arc of a non-tangent Curve to the right having a Central Angle of 20°04'33", a Radius of 117.98 feet, a Chord which bears S 63°08'35" E a distance of 41.13 feet to a point at an. elevation of 8187.2 feet; thence S 53°06'19 E a distance of 29.27 feet to a point at an elevation of 8189.5 feet; thence S 53'06'19 E a distance of 25.77 feet to a point at an elevation of 8189.4 feet; thence ascending vertically to a point at an elevation of 8190.4 feet; thence S 53°06'19 E a distance of 35.96 feet to a point at an elevation of 8190.8 feet; thence 32.68 feet along an Arc of Curve to the left having a Central Angle of 15°34'52", a Radius of 120.17 feet, a Chord which bears S 60°53'45" E a distance of 32.58 feet to a point at an elevation of 8191.0 and 'the True Point of Beginning for the upper, surface boundary. 5]8452 Page: 5 of 5 05/26/2004 03:59P Teak J Simonton Eagle, CO 289 R 26. 00 D 0. 00 613848.3 RUISH 05/13/04 10:01 AM Ie~kIIIISl~~~~~I~~~i~~lieliil,lllilili~~iil~~~lll~l~~~Ia Page: pas,,. DISTRICT COURT, EAGLE COUNTY, COLORADO 885 Chambers Avenue; P.O. Box 597 Eagle, Colorado 81631 NLGU IN THE K EAGLE COUNTY CO, MAY 2 0 2004 Petitioner: VAII; REINVESTMENT AUTHORITY, a body corporate and politic of the State of Colorado, COURT USE ONLY Respondents: VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation, Case Number KAREN SHEAFFER, as Treasurer of Eagle 2004CV228 County. Division H AMENDED RULE AND ORDER THIS MATTER came on regularly upon the Consent to Entry_ Rule and Order of the parties; and it appearing to the Cou. from the records and files herein that all pe f e°,U'~rra owners or otherwise, as appearing of recor9irti~i~o fr in : parties respondent, Py THE COURT NOW FINDS : Date GT Cpl etas 12 Ay. : o :0 C 1. That Petitioner and Re-sponden Vail.Associates Holdings, Ltd., were unable to reach an agreement upon thf~e ' of the sale of the property which is the subject of this Li on and Petitioner has elected to acquire the subject property through condemnation. 2. That the Court has full and complete jurisdiction of the subject matter of this action and the parties thereto; and that service has been made upon all parties as required by law, or that the same have subjected themselves to the jurisdiction of this Court. 3. That the accurate legal description of the property being acquired by Petitioner herein is set forth in Exhibit A attached hereto and incorporated herein by this reference. MUR\59599.02\473149.1 o - a-7 LO 1, 1, i 3 4. That the value of the property actually taken by Petitioner is $3,500,000.00. 5. That the Treasurer of Eagle County, Karen Shaeffer, disclaims any interest in the just compensation in reliance of the promise of Respondent Vail Associates Holdings, Ltd., to pay the real property taxes when the 2004 taxes are due and owing. 6. That Respondent Vail Associates Holdings, Ltd.., has waived the deposit of the just compensation into the Registry of this Court. I IT IS THEREFORE ORDERED, ADJUDGED AND-DECREED that the taking of the property described in Exhibit'A has been duly and lawfully taken and condemned, subject to the rights and interests specified in Exhibit A, by'Peti.tioner pursuant to the statutes and the Constitution of the State of Colorado, and that the interests of all Respondents in said real estate property have been acquired by Petitioner and said real property is hereby conveyed in fee simple,.subject to the rights and interests specified in Exhibit A, to Petitioner. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this Rule and.Order be recorded and indexed in the office of the Clerk and Recorder of Eagle County, Colorado, in like,manner and in like effect as if it were a deed of conveyance from the owners and parties interested to Petitioner herein and that the lis pendens recorded at Rec. No. 874748 pf the records of the Clerk and Recorder of Eagle County is hereby released. DONE this 6-2e day of 2004, nunc pro tunc May 17, 2004. BY THE COURT: - District Court Judge 111111111111 I1'111111111 1 11111 898449=:=so Teak J Simonton Eagle, CO 29 R 16.00 D 0. 00 MUR\57663\443931.01 2 Exhibit A Legal Description Lot.P-3, Block 5-A, Vail Village. Fifth Filing also identified as Lot P-3, according to the plat entitled "Lot P-3, Vail Village Fifth Filing", and recorded March 17, 2004, at Reception no. 871030, Eagle County, Colorado, subject to the following interests: 1. The parking easement encumbering the Property granted by instrument recorded July 10, 1963, in Book 177 at Page 127, as such easement may be affected by an agreement recorded June 5,, 1968, in Book 212, at Page 877, and by historical practices (the "Parking Easement"). 2. Right of proprietor of a vein or lode to extract and remove his ore therefrom should the same be found to penetrate or intersect the premises as reserved in United States Patent recorded May 20, 1905, in Book 48 at Page 511. 3. Right of way for ditches or canals constructed by the authority of the United States as'reserved in United States Patent recorded May 20, 1905, in Book 48 at Page 511. 878449 Page: 3 of 3 I I 1111 lit Teak J Simonton Eagle CO ( 05/26/2004 03:59P 29 R 16.00 D 0.00 MUR\59599.02\473149.1 I 878450 Page: 1 of 4 05/26/2004 03:59P Teak J•Simonton Eagle, CO 129 R 21.00 D 0.00 PROTECTIVE COVENANTS FOR LOT T-3, VAIL VILLAGE FIFTH FILING THESE PROTECTIVE COVENANTS FOR LOT P-3, VAIL VILLAGE FIFTH FILING (these "Covenants") are made as of the IS 66 day of May, 2004, by VAIL REINVESTMENT AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado (the "Authority"). RECITALS: A. By an exercise of its condemnation powers in Case No.2004CV228 before the District Court in Eagle County, Colorado, the Authority has acquired fee title to certain real property legally described as Lot P-3, according to the plat entitled "Lot P-3, Vail Village Fifth Filing," and recorded March 17, 2004, at Reception No. 871030 ("Lot P-3"). B. Pursuant to such condemnation; the Authority has acquired the Property free and clear of certain covenants that previously encumbered Lot P-3, namely (i) the Protective Covenants for Vail Village, First Filing, as originally recorded in the real property records for Eagle County, Colorado (the "Records") on August 10, 1962, in Book 174 at Page 179, and as subsequently amended, and (ii) the Protective Covenants for Vail Village, Fifth Filing, as originally recorded in the Records on November 5, 1965, in Book 187 at Page 353, and as subsequently amended (collectively the "Original Covenants"). The Original Covenants established certain restrictions regulating the use of Lot P-3. C. The Authority has determined to make and record these Covenants in order to establish appropriate limitations regulating the use of Lot P-3 in place of the extinguished provisions of the Original Covenants, with these Covenants to be for the benefit of the various owners within Vail Village, First Filing (as hereinafter defined for purposes of these Covenants), and their respective grantees, successors and assigns, and in furtherance of establishing and maintaining the character and value of real estate in Vail Village. NOW, THEREFORE, in consideration of the premises, the Authority, for itself and its grantees, successors and assigns in and to Lot P-3, does hereby impose, establish, publish, acknowledge, declare and agree, with, to and for the benefit of all persons who may hereafter purchase or lease and from time to time so own or hold any of the properties in Vail Village, First Filing, that the Authority owns and holds Lot P-3 subject to the following restrictions, covenants and conditions, all of which shall be deemed to run with the land and to inure to the benefit of said owners in Vail Village, First Filing, their respective grantees, successors and assigns, and be binding upon the Authority as the owner of Lot P-3, and its grantees, successors and assigns. 1. LAND USE. The lands in Lot P-3 shall be used only for the following purposes: a subterranean parking garage facility, paved surface parking, open space/park facility area (public or private), and ancillary storage and other related uses. 2. EASEMENTS AND RIGHTS-OF-WAY. Easements and rights-of-way for roads, lighting, heating, electricity, gas, telephone, water, sewerage, bridle paths, and 618768.2 RCPISH 05/18/04 4:37 PM U-X~ -1~10b,3 Page: 2 of 4 lll9 tlll~ Illllil Illil II91Ilii li!II,! l! II!II IIII IIII, 878 450 05/26/2004 03:59P Teak J pedestrian traffic, and any other kind of public or quasi public utility service are reserved as shown on the plat of Vail Village, First Filing (as referenced below), and the plat of Vail Village, Fifth Filing (recorded November 12, 1965, at File No. 102538). No fence, wall, hedge, barrier or other improvement shall be erected or maintained along, on, across or within the areas reserved for easements and rights-of-way. 3. SIGNS. No signs, billboards, poster boards or advertising structure of any kind shall be erected or maintained on any lot or structure for any purpose whatsoever, except such signs as are reasonably necessary for the identification of residences and places of business or other premises. 4. WATER AND SEWAGE. Each structure designed for occupancy or use by human beings shall connect with the water and sewerage facilities of the Vail Water and Sanitation District. No private well shall be used as a source of water for human consumption or irrigation in Lot P-3, nor shall any facility other than those provided by the Vail Water and Sanitation District be used for the disposal of sewage. Mechanical garbage disposal facilities shall be provided in each kitchen or food preparing area. 5. TRASH AND GARBAGE. No trash, ashes or other refuse may be thrown or dumped on any land within Lot P-3. The burning of refuse out of doors shall not be permitted in Lot P-3. No incinerator or other device for the burning of refuse indoors shall be constructed, installed or used by any person. Each property owner shall provide suitable receptacles for the collection of refuse. ~ Such receptacles shall be screened from public view and protected from disturbance. 6. LIVESTOCK. No animals, livestock, horses, or poultry of any kind except dogs, cats and other household pets shall be kept, raised or bred in Lot P-3. _ 7. TREES. No trees shall be cut, trimmed or removed in Lot P-3, except as permitted under the rules and regulations of the Town of Vail. 8. LANDSCAPING AND GARDENING. All surface areas disturbed by construction shall be returned promptly to their natural condition and replanted in native grasses, except where such areas are to be improved by the construction of gardens, lawns, and exterior living areas. 9. AREA REQUIREMENTS. No structure designed for human use or habitation shall be constructed unless the aggregate floor area, exclusive of open porches, basements, carports and garages, shall be in excess of 900 square feet. 10. TRADE NAMES. No word, name, symbol, or combination thereof shall be used to identify for commercial purposes a house, structure, business or service in Lot P-3. I L TEMPORARY STRUCTURES. No temporary structure, excavation, basement, trailer or tent shall be 'permitted in Lot P-3, except as may be necessary during construction. 618768.2 RCFISH 05/18/04 4:37 PM 2 12. CONTINUITY OF CONSTRUCTION. All structures commenced in Lot P-3 shall be prosecuted diligently to completion. 13. NUISANCE. No noxious or.offensive activity shall be carried on nor shall anything be done or permitted which shall constitute a public nuisance in Lot P-3. 14. EFFECT AND DURATION OF COVENANTS. The conditions, restrictions, stipulations, agreements and covenants contained herein shall be for the, benefit of each tract in Vail Village, First Filing, and each owner of property therein, his successors, representatives and assigns, and shall be binding upon Lot P-3, and its owner and successors in interest, and shall continue in full force and effect until January 1, 2049. 15. AMENDMENT. The conditions, restrictions, stipulations, agreements and covenants contained herein shall not be waived, abandoned, terminated, or amended except by written consent of the owners of 75% of the privately owned land. included within the boundaries of Vail Village, First Filing, as the same may then be shown by the plat on file in the office of the Clerk and Recorder of Eagle County, Colorado. 16. ENFORCEMENT. If any person shall violate or threaten to violate any of the above conditions, restrictions, stipulations, agreements and covenants, it shall be lawful for any person or persons owning real property in Vail Village, First Filing to institute proceedings at law or in equity to enforce these provisions, to restrain the person violating or threatening to violate them, and to recover damages, actual and punitive, for such violations. 17. SEVERABILITY. Invalidation of any one of the provisions of this instrument by judgment or court order or decree shall in no wise affect any of the other provisions which shall remain in full force and effect. 18. SCOPE OF BENEFITTED PROPERTIES. References in these Covenants to Vail Village, First Filing shall mean and encompass all the properties included within the plat of Vail Village, First Filing recorded August 6, 1962, at File No. 96382 (and specifically including, without limitation, those properties included within the replatting effectuated by the plat of Vail Village, Fifth Filing referenced in paragraph 2). [Balance of page intentionally left blank] I S?8450 Page: 3 of 4 I I 05/25/2004 03:59P Teak J Simanton.Eagie, CO 129 R 21.00 D 0.00 618768.2 RCFISH 05/18/04 4:37 PM 3 IN WITNESS WHEREOF, Vail Reinvestment Authority has made these Protective Covenants for Lot P-3, Vail Village Fifth Filing, as of the day, month and year first above written. VAIL REINVESTMENT AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado By: Name:"Stanley 'Zemler Title: Executive Director STATE OF COLORADO ss. COUNTY OF ) tbiL The foregoing instrument was acknowledged before me this day of 2004 by Stanley B. Zemler, as Executive Director of Vail Reinvestmen Authority, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado. Witness my hand and official seal. LORELEI DONALDSON, Notary Public My Commission Expires July 5, 2006 75 S. Frontage Road Vail, CO 81657 My Commission expires: 00 Dsot ' Not bli e V- ...0L 1~11 Jill 878450 05/26/2004 03:59P Teak J Simonton Eagle, CO 129 R 21.00 0 0.00 C 618768.1 RUISH 05/18/04 4:37 PM 4 8'a III!VI,III'Simonton IIIIIIIIIIIIIIIIIIIJIfdlllll!Ifillllllllll , s~,,. 388 R SPECIAL WARRANTY DEED [Statufgry Form - C.R.S. § 38-30-115 (Modified)] VAIL REINVESTMENT AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado, whose. street address is 75 South Frontage Road, Vail, Colorado 81657, Attention: Stanley B. Zemler, Executive Director, Town of Vail, County of Eagle and State of Colorado ("Grantor"), for good and valuable consideration, in hand paid; hereby sells and conveys to VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation, whose street address is c/o Vail Resorts Development Company, P.O. Box 959, 137 Benchmark Road, Avon, Colorado 81620, Town of Avon, County of Eagle and State of Colorado ("Grantee"), the real property in the County of Eagle and State of Colorado that is legally described on Exhibit A attached hereto and incorporated herein by this reference, with all its appurtenances, and warrants the title against all persons claiming under Grantor, subject to the title exceptions set forth on Exhibit B attached hereto and incorporated herein by this reference. 1 - Made as of the Cq:==day of May, 2004. VAIL REINVESTMENT AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado By. Name: Stanley B. Zemler Title: Executive Director STATE OF COLORADO ) ) ss. COUNTY OF 1~) nZ 'A4 Z--) . The foregoing instrument was acknowledge , 20~ by Stanley B. Zemler, Reinvestment utl ~ority, a body corporate duly organized authority under the laws of the State of Colorado. CrFtY PUB O LORELEI DpK.DSOW Witness my hand and official seal. y Commission expires: d before me this y/ day of as Executive irector of Vail and existing as an urban renewal LORELEI DONALDSON, Notary Public My Commission Expires July 5, 2006 75 S. Frontage Road Vail, CO 81657 IN9'ryY1 blic [Consideration paid less than $500 - no documentary fee required] 618766.1 RUISH 05/18/04 4:37 PM v-17q 7ta t,,2,3 EXHIBIT A LEGAL DESCRIPTION Lot P-3, according to the subdivision plat entitled "Lot P-3, Vail Village Fifth Filing," and recorded March 17, 2004, at Reception No. 871030, County of Eagle, State of Colorado. hIIlNlllimollli~ll19111lilllllllll!Illlpllllllll'8 M845 a, ,o. 0 618766.2 RUISH 05/18/04 4:37 PM A-1 CI EXHIBIT B PEW41TTED EXCEPTIONS 1. The lien for real property taxes and assessments not yet due and payable. 2. Protective Covenants for Lot P-3, Vail Village Fifth Filing, executed by Grantor and recorded on the same day as and prior to the recordation of this Deed. 3. Parking easement granted by instrument recorded July 10, 1963, in Book 177 at Page 127, as such easement may be affected by an agreement recorded June 5, 1968, in Book 212 at Page 877, by historical practices, and as the same is affected by a Quitclaim Deed recorded May 17, 2004, at Reception No. 877349. 4.. Right of proprietor of a vein or lode to extract and remove his ore therefrom should the same be found to penetrate or intersect the premises as reserved in United States Patent recorded May 20, 1905, in Book 48 at Page 511. 5. Right of way for ditches or canals constructed by the authority of the United States as reserved in United States Patent recorded May 20, 1905, in Book 48 at Page 511. 388 R 11111111!6'11~1191ilEagle, llllil!911111111~11111~9111i a8' 845 8743451 D o.00 6187662 RCFISH 05/18/044:37 PM B-1 878453 Page: 1 of 10 c 05/26/2004 03:59P Teak J Simonton Eagle, CO 66 R 51.00 D 0.00 BARGAIN AND SALE DEED [Statutory Form - C.R.S. § 38-30-115 (Modified)] TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of Colorado ("Grantor"), whose street address is 75 South Frontage Road West, Vail, Colorado 81657, for good and valuable consideration, in hand paid or received, hereby sells and conveys to VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation ("Grantee"), whose street address is c/o Vail Resorts Development Company, P.O. Box 959, 137 Benchmark Road, Avon, Colorado 81620, the real property in the County of Eagle and State of Colorado that is described on Exhibit A attached hereto (the "Property"), with all its appurtenances, but subject to the reservations in favor of Grantor set forth below. . 1. Grantor hereby reserves a right of entry in and to the Property in accordance with and subject to the following provisions: (a) The Property, which the Grantor has vacated as part of the Hanson Ranch Road public right-of-way, has been so vacated and is being conveyed under this Deed in order to allow Grantee to integrate the Property as part of a real estate development project to be constructed within the Property and contiguous property owned by the Grantee and legally described on Exhibit B attached hereto (collectively the "Development Site"), which project is intended to incorporate a subterranean parking structure (to be complemented by paved surface parking) and an open space/park area to be allocated to public use by a Park Easement Agreement to be made between the Grantor and Grantee (collectively the "Project"). In connection with the undertaking of the Project: (i) The conveyance under this Deed is subject to the requirement in perpetuity that the Property be used by Grantee only for parking and ancillary uses, and that elements of the parking garage facilities within the Project, as those facilities may be altered, modified, redeveloped or reconstructed from time to time (whether as a result of any casualty to, obsolescence of or other loss or damage affecting the parking garage `facilities, or whether by elective action), must be installed within the Property, or some portion thereof, no later than three (3) years after the date of this Deed (subject to extension under paragraph (ii) below), and thereafter must be maintained within the Property, or some portion thereof (collectively the "Parking Condition"). In the event any such alteration, modification, reconstruction or redevelopment of those parking garage facilities entails any demolition and removal ' of all parking garage elements from the Property, compliance with the Parking Condition will still be maintained so long as new elements of the parking garage facilities are installed within the Property, or some portion thereof, within three (3) years after all such elements have been initially removed from the Property (again subject to extension under paragraph (ii) below). (ii) The time periods established under paragraph (i) above for the requisite installation of garage facility elements will be extended for any delays 617848.5 RUISH caused by any event or circumstance beyond the reasonable control of Grantee, 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. (b) The Parking Condition will be regarded as having failed in the event (i) Grantee ever uses the Property for purposes other than parking and associated uses, (ii) Grantee does not install and maintain parking garage elements within the Property in accordance with the foregoing provisions of paragraph (a), or (iii) Grantee affirmatively elects in writing for a permanent, irrevocable abandonment of the parking garage facilities (in which case the Parking Condition will fail as of the date that such election becomes effective and final, as set forth in the instrument governing the election). In the event a common interest community is established under. the Colorado Common Interest Ownership Act ("CCIOA," C.R.S. § 38-33.3-101 et seq., as the same may be subsequently amended or replaced)) that is inclusive of the Property, then the termination of that common interest community by a recorded agreement of the subject owners in accordance with CCIOA shall be deemed an election to abandon under clause (ii) above.. An abandonment of the garage facilities within the Property may be effectuated by leaving the garage facilities in place and/or by demolition of the facilities and fill of the Property, or portions thereof, in accordance with the Town of Vail's applicable construction and building requirements. (c) In the event there is ever any failure of the -Parking Condition, then the Grantor (as its sole right or remedy in connection therewith) shall have a right of entry for .condition broken, such that upon the exercise thereof the Grantor will reacquire fee title to the Property. To exercise this right of entry, the Grantor will be required to record in the real' property records for Eagle County, Colorado, a notice specifying that it is exercising this right of entry (and the exercise will also remain subject to applicable requirements of legal process). In addition, in the event elements of the parking garage facility are redeveloped and installed within the Property after any failure of the Parking . Condition under clause (ii) in paragraph 1(a) above, but before the right of entry is actually exercised, then the right of entry will cease to be enforceable unless and until there is again another subsequent failure of the Parking Condition. (d) The Grantor, within ten (10) days after request by notice from time to time, will execute and deliver a written estoppel certificate, made expressly for the benefit of Grantee and any of its designees set forth in such notice, confirming (i) compliance or non-compliance, as the case may be, with the Parking Condition at that time, and. (ii) if the right of entry is then exercisable, whether or not the right of entry has been exercised. Any such estoppel certificate shall be made on any form that Grantee may reasonably prescribe in its request notice, including the incorporation of an acknowledgement for putting the estoppel certificate in recordable form. If the Grantor fails to execute and deliver any requested estoppel certificate within the prescribed 10- 878458 Page: 2 of 10 613848.5 RCFISH 2 05/26/2004 03:59P Teak J Simonton Eagle, CO 66 R 51.00 D 0.00 day period, Grantee shall be conclusively deemed in compliance with the Parking Condition at that time. 2. Grantor further reserves for its benefit an easement in and upon the Property for subjacent support for the surface of existing Hanson Ranch Road as it overlies the Property (including portions of Hanson Ranch Road as reconstructed by Grantee in connection with the Project). The foregoing provisions limiting the Grantor's right of entry will not be applied or construed to limit this easement for subjacent support, which will take effect as of the date of this Deed and continue in effect on an uninterrupted basis in perpetuity. This easement for subjacent support will be further governed by the following provisions: (a) Grantee acknowledges that it will be reconstructing portions of Hanson Ranch Road overlying the Property in connection with the Project. In that regard, the Grantee agrees that the Grantor, in connection with the requisite construction approvals, may require that the pertinent portions of Hanson Ranch Road be so constructed that paved street sections can be widened without requiring additional structural modifications, and that pavement, curb, and gutter shall be so constructed that they can be removed and replaced without physically affecting Project structures located within the Property. , (b) As part of this easement for subjacent support, the Grantee covenants that the Property and the development of the Project therein will furnish adequate support for overlying Hanson Ranch Road for the ordinary use thereof for its intended purposes (and this covenant shall run in perpetuity as part of the easement), and that Grantee will be obligated for any damage to Hanson Ranch Road caused by a failure of such 'support. However, this covenant shall apply only so long as overlying Hanson Ranch Road is maintained in substantially the same condition in which it exists as of the. date hereof (subject to Grantee's reconstruction of portions thereof as referenced above), or any other . condition that does not materially add to the support burdens imposed on the Property and Project. Grantee will not have any responsibility or liability for any failure of support which is caused by surface conditions that do not remain in compliance with the foregoing provisions, and Grantor in turn covenants to Grantee that Grantor will not cause or permit any, such non-compliant surface conditions that result in damage to the Project, or otherwise cause or suffer damage to the Project arising by, through or under Grantor. (c) Grantee further covenants that it will assume full responsibility for any and all damages incurred to any drainage or other utility facilities of the Town or other utility providers located within Hanson Ranch Road that arise from Grantee's construction activities in connection with the Project. Any and all replacements or repairs of those facilities which are necessitated by any such damage attributable to Grantee under the foregoing provisions shall be made by the Town at the sole expense of Grantee. (d) Grantee shall indemnify the Town and save the Town harmless from and against any and all costs, claims, or damages arising out of any breach by Grantee of its C 878453 Page: 3 of 10 05/26/2004 03:59 613A43,5 RUISH 3 Teak J Simonton Eagle,. CO 66 - R 51.00 D 0.00 obligations and assumed responsibilities under the foregoing provisions of this paragraph 2. (e) So long as the right of entry has not been exercised under paragraph I above, Grantee, at its expense and without cost to the Town, shall procure and maintain in effect a comprehensive general public liability insurance policy with a single occurrence limit of not less than $2,000,000.00, and written on an occurrence basis. This coverage shall expressly name the Grantor as an additional insured, and shall specifically furnish a contractual liability endorsement for the Grantee's indemnity and other obligations under the foregoing provisions of this paragraph 2. This coverage shall not be construed as a limit upon the liability of the Grantee for its obligations and responsibilities under the foregoing provisions. The Grantor, as the owner of Hanson Ranch Road, hereby also grants Grantee a perpetual easement appurtenant benefitting the ownership of the Development Site and the Project that permits the existence and continuing maintenance of any encroachments into Hanson Ranch Road by garage or related improvements developed within or adjacent to the Property, whether such encroachments arise from engineering errors, errors in original construction or any reconstruction, restoration, rehabilitation or improvement, any settlement, shifting or movement of any improvements, or any other cause of an unintentional nature, provided that any such encroachment may not have a material adverse effect on the ordinary use and enjoyment of Hanson Ranch Road in its current configuration and composition. However, the. foregoing will not be, construed to limit the. Grantor's ordinary exercise of police powers, as a sovereign municipality, to withhold Project approvals for any material deviations between actual construction and approved plans therefor, and to require correction of such deviations, all in accordance with generally applicable requirements of the Grantor established by the exercise of its police powers. In the event any legal proceeding arises out of the subject matter of this Deed and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and the presiding court will be bound to make this award). . The terns of this Deed shall be governed and construed in accordance with the laws of the State of Colorado. Exhibits referenced elsewhere herein as attached to this Deed are incorporated herein by this reference. By the Grantee's acceptance of this Deed by its execution in the space furnished below, the terms of this Deed shall be binding upon and inure to the benefit of Grantee and its successors in interest in the ownership of the Property (and all references herein to the Grantee shall be deemed to include such successors in interest). Each successor owner of the Property (including the Grantee named herein) shall be liable only for those obligations of the Grantee hereunder that accrue during the term of such owner's ownership. Furthermore, during any times that the Property is subject to an owners association (established under CCIOA or otherwise), then the individual owners will -not have any personal liability for the Grantee's obligations hereunder so long as those obligations are assumed by the association. 8'8453 Page: 4 of 10 613849.5 RUISH 4 ( 05/26/2004 03:59 Teak J Simonton Eagle, CO 66 R 51.00 D 0.00 y~;:•~°vA )n, his day of 2004. ~O • TOWN OF VAIL, a municipal corporation duly , organ ized and existing under and by virtue of the laws of the State of Colorado ATT • COLON Z Lo lei onaldson, Town Clerk Name: Title: low w STATE OF Colorado ) ss: COUNTY OF Eagle ) C The foregoing instrument was acknowledged before me this day of , 2004, by Stan Zemler as Town Manager of the Town of Vail, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado. Witness my hand and official seal. My commission expires: 10/28/2006 c~Lo No y ub]ic J~ [Joinder of Grantee Follows as ]Feat Page] $784530 Teak J Simonton Ea91e, CO 66 R 51.00 04 5/26p2000003 :59P 613848.5 RUISH 5 Acceptance of Grantee The undersigned Grantee, VAIL ASSOCIATES HOLDINGS, LTD.,. a Colorado corporation, hereby accepts the terms of and shall be bound by this Deed. VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation STATE OF COLORADO ) ) ss: COUNTY OF iS The foregoing instrument was a mowledged befo e this g day of 2004, by i `'om s 11-' of Vail A ciates Holdings, Ltd., a Colorado corporation. Witness my hand and official seal. e e e N .p o ••o 9j~. L coGo~ OF MyCOMMIssion Expires 9/1712005 expires: o ary Public 878453 Teak J Simonton Eagle, COI 66 R 51.00 5g26D 0.0003:59P 613848.5 RUISH 87845.3 Page: 7 of 10 05/26/2004 03:59P Teak J Simonton Eagle, CO 66 R 51.00 D 0.00 EXHIBIT A Leval Description A Parcel of land located in the Right-of-Way of Hanson Ranch Road, Vail Village, Fifth Filing,. according to the Plat thereof recorded November 12, 1965, at Reception No. 102538 in the office of the Clerk and Recorder, County of Eagle, State of Colorado, being more particularly described as a three-dimensional area bounded by upper and lower surfaces whose perimeters are described below, and bounded on its sides by vertical surfaces connecting the perimeters of those upper and lower surfaces: For both the upper and lower surfaces, beginning at the Southeasterly corner of Lot P-3, according to the subdivision plat entitled "Lot P-3, Vail Village Fifth Filing" (recorded March 17, 2004, at Reception No. 871030), whence the Northeast corner of said Lot P-3 bears N 07°14'02" W a distance of 133.48 feet, which constitutes the Basis of Bearing for this legal description, and with elevations for this legal description being based on HARN station "Spraddle", having an elevation of 8287.82 feet (NAVD 88); Lower Surface Boundary: Beginning at said Southeasterly Corner of said Lot P-3; thence along the Northerly Right-of- Way line of Hanson Ranch Road, said line being the Southerly boundary line of said Lot P-3, 32.76 feet along an Arc of a Curve to the right, having a Central Angle of 15°37'04", a Radius of 120.17 feet, a Chord which bears N 76°29'43" W, 32.66 feet to a point on said Southerly boundary line of said Lot P-3; thence vertically downward to a point at an elevation of 8153.0 feet, being the True Point of Be 'Wring for the lower surface boundary; thence S 82°45'58" W a distance of 36.79 feet to a point at an elevation of 8153.0 feet; thence N 53115'06" W a distance of 52.41 feet to a point at an elevation of 8153.0 feet; thence ascending vertically to a point at an elevation of 8155.0 feet; thence N 53°15'06" W a distance of 28.00 feet to a point at an elevation of 8155.0 feet; thence ascending vertically to a point at an elevation of 8156.5 feet; thence N 53°15'06" W a distance of 49.50 feet to a point at an elevation of 8156.5 feet; thence N 09°25'45" E a distance of 16.18 feet to a point at an elevation of 8156.5 feet; thence 41.34 feet along an Arc of a non-tangent Curve to the right'having a Central Angle of 20°04'33", a Radius of 117.98 feet, a Chord which bears S 63°08'35" E a distance of 41.13 feet to a point at an elevation of 8156.5 feet; thence S 53°06' 19 E a distance of.16.42 feet to a point at an elevation of 8156.5 feet; thence downward vertically to a point at an elevation of 8155.0 feet; thence S 53°06' 19" E a distance of 28.00 feet to a point at an elevation of 8155.0 feet; thence downward vertically to a point at an elevation of 8153.0 feet; thence S 53'06'19" E a distance of 46.58 feet to a point at an elevation of 8153.0 feet; thence 32.68 feet along an Arc of Curve to the left having a Central Angle of 15°34'52", a Radius of 120.17 feet, a Chord which bears S 60°53'45" E a distance of 32.58 feet to a point at an elevation of 8153.0 and the True Point of Beginning for the lower surface boundary. Upper Surface boundary Beguuung at said Southeasterly Comer of said Lot P-3; thence along the Northerly Right-of- Way line of Hanson Ranch Road said line being the Southerly boundary line of said' Lot P-3, 32.76 feet along an Arc of a Curve to the right, having a Central Angle of 15°37'04', a Radius of 120.17 feet, a Chord which bears N 76°29'43" W, 32.66 feet to a point on said Southerly 613848.3 RUISH 0511104 10:01 AM boundary line of said Lot P-3; thence vertically downward to a point at. an elevation of 8191.0 feet, being the True Point of Beginning for the upper surface boundary; thence S 82°45'58 W a distance of 36.79 feet to a point at an elevation of 8191.0 feet; thence downward vertically to a point at an elevation of 8190.0 feet; thence N 53°15'06" W a distance of 10.56 feet . to a point at an elevation of 8189.9 feet; thence N 53°15'06" W a distance of 28.49 feet to a point at an elevation of 8189.9 feet; thence N 53°15'06" W a distance of 28.51 feet to a point at an elevation of 8188.2 feet; thence N 53°15'06" W a distance of 62.35 feet- to a point at an elevation of 8184.0 feet; thence N 09°25'45" W a distance of 16.18 feet to a point at an elevation of 8184.0 feet; thence 41.34 feet along an Arc of a non-tangent Curve to the right having a Central Angle of 20°04'33", a Radius of 117.98 feet, a Chord which bears S 63°08'35" E a distance of 41.13 feet to a point at an elevation of 8187.2 feet; thence S 53°06'19 E a distance of 29.27 feet to a point at an elevation of 8189.5 feet; thence S 53'06'19 E a distance of 25.77 feet to a point at an elevation of 8189.4 feet; thence ascending vertically to a point at an elevation of 8190.4 feet; thence S 53°06'19 E a distance of 35.96 feet to a point at an elevation of 8190.8 feet; thence 32.68 feet along an Arc of Curve to the left having a Central Angle of 15°34'52", a Radius of 120.17 feet, a Chord which bears S 60°53'45" E a distance of 32.58 feet to a point at an elevation of 8191.0 and the True Point of Beginning for the upper surface boundary. I Teak III~!~Ilil~lllllll Eagl, CO li~fll!~I~9~11!191l91i14,111a8'8453 „ 6138483 RCFISH 05/13/04 10:01 AM - EXHIBIT A (cont.) Q C/') _j :E O oN Q~-I Lt z W fW] a a ' _1 • CG Q G O N n a.4 >0 ~y LL o m N ~ Q z -Jp`r -j p 0 mm _ ' OF BEARINGS) (BASIS 48 . - S07'14 02°E 133 i M ~ O u O a m O~. . Cb I 0 V V U m 0 V r- J O~ ~ Ob W ~ = O m z N m z ~ O z O in to c.s ~ /MD to k O ` = ,-4 Q 4• ( J " j n r ' w n °vO V Co 00 ~ Q ~ M a O N ~ W J m H V O LD v 0 0 1, O M Z n N N 7 J LO M M Zl / u N i7 ' ~ w 2 -7 -7 n 00 rn 'co N N N Z m jn V] v <14 ' W ? N ' Z'~ _OWd m 0 00 O Z = 7a0 V?_ F W J tO v N M ~W m q O M M Z J m I W H LU M M O W U r ~ O M 2 N Z Z t6 to .J J M W J J J U U U U U 1111111111111111111 U A ~ ~ b w w a a U > O x a a ? y tic y N p n F, ' ~ / Al wa E" E- d O W ua add Z o k 0 Wa~ WA Ra O ~ E 114 b W q W C~ [1 i 878453 Page: 9 of 10 i Eaale. ca FF 05/26/2004^03:; I C ;9P 4 maa° maao O 0L, LL Z . cr:3 OwLiz O.IL C.a~O EXHIBIT B Lot P-3, according to the plat entitled "Lot P-3, Vail Village Fifth Filing," recorded March 17, 2004, at Reception No. 871030. 873453 Page: 10 of 10 Teak J Simonton Eagle, CO 66 R 51.00 5/26D20 00 3:59P 613646.5 RMSH B-1 C, 1 i LOT P-3 DEVELOPMENT AGREEMENT THIS LOT P-3 DEVELOPMENT AGREEMENT (this "Agreement") is made effective as of the b day of M~1 2004, by and between the TOWN OF VAIL, a municipal corporation duly organized a d existing under and by virtue of the laws of the State of Colorado. (the "Town"), and VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation ("Vail Holdings"). RECITALS: A. Vail Holdings is the owner of certain real property in the Town of Vail, Eagle County, Colorado, which is legally described on Exhibit A attached hereto (the "Property"). B. Vail Holdings desires to develop the Property pursuant to (i) the Town's Parking (P) District zoning, which has been adopted and approved.by the Town for the Property, (ii) the conditional use permits granted by the Town's Planning and Environmental Commission ("PEC") under the Parking (P) District zoning, by PEC action taken August 11, 2003, which authorize the development and use upon. the Property of a subterranean parking structure to be complemented by ancillary surface improvements, together with paved surface parking and a. park area to be allocated to public use by the grant of a recreation easement iii the associated development plans for such development-on the Property, entitled "Vail's Front Door - Vail Park and Garage at Lots P-3&J," that . were reviewed by the PEC in conjunction with the issuance of the conditional use permits and also approved by the Town's Design Review Board by action taken on November 19, 2003 (the "Project Plans"), and (iv) the major subdivision plat approved by the Town that is inclusive of the Property, is entitled "Lot P-3, Vail Village Fifth Filing", and was recorded on March 17, 2004,. at Reception No. 871030 (the "Current Replat"), and any further subdivision of the Property as contemplated under paragraph 5 below (collectively, the "Development Approvals"). The parking, park and related improvements and facilities contemplated by the Development Approvals are sometimes collectively referred to hereinafter as the "Project." C. Vail Holdings and the Town have mutually determined to make this Agreement in order to establish various agreements between them respecting the undertaking of certain public dedications, public improvements and other measures related to the development of the Property pursuant to the Development Approvals. D. The parties also acknowledge that Vail Holdings and/or its affiliates intend to proceed with a development project at the base of Vail Mountain in Vail Village, Colorado, which may include, among other things, new spa facilities incorporated into the Lodge at Vail, residential condominiums to the south of the Lodge at Vail, a new skier seivices building and facilities, a subterranean garage facility incorporating commercial loading and delivery facilities for public use, including multiple loading bays (the "Front Door Loading/Delivery Facility"), and the relocation of the Vista Bahn chairlift facilities within the Vista Balm ski yard (collectively the "Front Door Project"). The Town has given its approval of a development plan for the Front Door Project pursuant to a PEC approval rendered September 22, 2003, which approval was affirmed on appeal by the Town Council on November 4, 2003 (the "Front Door 878x454 Page: I of 46 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 Development Plan'). Vail Holdings and the Town mutually desire to establish certain terms in this Agreement to address the provision of interim commercial loading/delivery resources pending the undertaking of the Front Door Loading/Delivery Fapility. NOW, THEREFORE, in consideration of the above premises and the mutual covenants and agreements set forth herein, the Town and Vail Holdings covenant and agree as follows: 1. Dedication of Pirate Ship Park. (a) As a condition to the issuance of any building permit for the Project, Vail Holdings will cause its affiliate, The Vail Corporation, to dedicate to the Town, by a bargain and sale deed made in substantial conformity with the Colorado statutory form, but modified to accommodate the use restriction, right of entry and reservations under the following provisions (the "Dedication Deed"), that area proximateto the Vail Village ski yard which is commonly known as "Pirate Ship Park," which is located within Tract E, Vail Village Fifth Filing, according to the recorded plat thereof ("Tract E"), and which is legally described on Exhibit B-1 attached hereto and incorporated herein by this reference (the "Park Site"). At the time of dedication, the Town will remain obligated under the "Pirate Ship Park Lease" (which was made between Vail Associates, Inc., as the lessor, and the Town, as the lessee, and is dated effective May 1, 1995), to discharge and satisfy, and 'protect Vail Associates, Inc. (n/k/a The Vail Corporation) from, any accrued and undischarged claims in favor of or liabilities incurred to any third parties which fall within the scope of the Town's duties under Paragraphs 3, 4, 8, or 9 of the Pirate Ship Park Lease, or any losses suffered'by The Vail Corporation because of any accrued breach of the Town's insurance obligations under Paragraph 6 of the Pirate Ship Park Lease, together with any associated sums that may be recoverable under Paragraph 15(d) of the Pirate Ship Park Lease. The parties mutually acknowledge and agree that the Pirate Ship Park Lease otherwise will terminate, and the parties will have no further obligations or duties thereunder, at the time the dedication is made, and that the termination provisions of Paragraph 10 of the Pirate..,. Ship Park Lease will be wholly inapplicable to the termination effectuated by this Agreement. (i) The Dedication Deed will contain a use restriction in perpetuity that the Park Site shall be used only for public park purposes, together with a right of entry for condition broken in favor of The Vail Corporation in the event such restriction is ever violated, such that The Vail Corporation can reacquire fee title to the Park Site in the case of such a violation. To exercise this right of entry, The Vail Corporation will be required to record in the office of the Clerk and Recorder for Eagle County, Colorado (the "Records"), a notice specifying that it is exercising this right of entry (and the exercise will also remain subject to applicable requirements of legal process). (ii) The Dedication Deed will further incorporate reservations in favor of The Vail Corporation for easements over the Park Site for the installation, alteration, removal, maintenance, 'replacement, use and enjoyment of utility and storm drainage facilities, including both' a reservation for such purposes on a general or blanket basis (the "General Reservation'), and a reservation for specific easements for electrical, storm drainage, and grading and utility easements as described on Exhibit B-2 attached hereto. These reservations will 1111111111111111111111111111111111 111154 616404.3 RUISH 2 Page:...2 of. 45 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 i f , f encompass and include the right to grant and establish utility easements in favor of utility suppliers upon such terms as they may prescribe and also in favor of affiliates of The Vail Corporation that may own or develop other properties which may need or can benefit from utilities or drainage services or facilities routed over the Park Site. With respect to the General Reservation, however, any easements to be established pursuant thereto will be mutually determined by the parties (acting reasonably); provided, that any such General Reservation easements will be subject to the rights of the Town to locate park improvements within the Park Site in material conformity with the proximate configuration thereof shown on Exhibit B-1 hereto, and also landscaped areas within the Park Site which are mutually determined by the parties (acting reasonably). Any exercise of the General Reservation or any easements established pursuant thereto may not interfere with, damage or require the removal of any such park improvements or landscaping (provided that any easement holder may disturb landscaping or improvements as necessary to use and enjoy its easement right, provided the holder substantially replaces. any landscaping or improvements damaged as a result). Vail Holdings (or its designee) and/or the Town Will make such further documents as may be reasonably necessary or appropriate to effectuate any easements within the scope of the foregoing reservations that are not inconsistent with the foregoing provisions. (b) Vail Holdings acknowledges that following the, completion of the dedication by the Dedication Deed, the Town wants to undertake a resubdivision so that the Park Site and the balance of Tract E are each established as a separate subdivision lot by a new subdivision plat. Vail Holdings agrees to have prepared, make application to the Town for, and process a new subdivision plat map for this particular purpose, and both the Town, as the owner of the Park Site, and The Vail Corporation, as the owner of the balance of Tract E, will join in the application and the resubdivision plat (Vail Holdings will be obligated to cause The Vail Corporation'to so join in). The Town will reasonably cooperate in the process of Vail Holdings' preparing, making application for, and processing such plat. However, in any event this resubdivision will be solely for the purpose of establishing the two separate lots, and neither The Vail Corporation, Vail Holdings nor any of their affiliates will have any other obligations pertaining to the Park Site or the resubdivision, including, without limitation, any undertaking of improvements or any dedications of property other than the Park Site. The completion of the plat application will, but the adoption of the resubdivision plat will not, constitute a condition to the issuance of any grading or building permit or other requisite approvals for the development of the Project. 2. Hanson Ranch Road Vacation. The Town and Vail Holdings mutually acknowledge that in order for Vail Holdings to be able to develop the Project in accordance with the Development Approvals, the Town must vacate a three-dimensional subterranean portion of the public right-of-way of Hanson Ranch Road, which three-dimensional portion is legally described on Exhibit C-1 attached hereto, because elements of the Project are planned and designed to extend into that. three-dimensional area (the "Vacation Area"). Contemporaneously with or prior to the mutual execution and delivery of this Agreement, the Town Council shall adopt, upon second reading, an ordinance vacating the Vacation Area and acknowledging that the Vacation Area is to be vested in Vail Holdings (the "Vacation Ordinance"). In conjunction 616404.3 RUISH 3 878454 Page: 3 of 46 05/26/2004 03:59P Teak J Simonton Eagle, Co 23 R 231.00 D 0.00 with the vacation, and by authorization established under the Vacation Ordinance, the Town shall proceed to execute and deliver to Vail Holdings a bargain and sale deed for recordation that expressly conveys the Vacation Area to Vail Holdings. This bargain and sale deed will be made in conformity with the form therefor attached hereto as Exhibit C-2. 3. Off-Site Public Improvements. As part of the Project, Vail Holdings 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 (the "Off Site Improvements" or the "Public Project"). The Off-Site Improvements will be constituted and governed by (i) those improvements provided for in 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"), but only to the extent such improvements are specifically enumerated on Exhibit D attached hereto, and (ii) those off-site public infrastructure improvements provided for in Vail Holdings' final building permit plan set. for the Project which is approved by the Town, to be consistent in scope with the Project Plans (those provisions of such plan set that are applicable under clause (ii) above, together with those provisions of the Master Streetscape Specifications that are applicable under clause (i) above, are sometimes referred to hereinafter collectively as the "Off-Site Plans"). The Off-Site Improvements shall also be undertaken in accordance with and subject to the following provisions of this paragraph 3: (a) To the extent any Off-Site Improvements are to be located within or may affect private property or private property interests, it shall be incumbent upon the Town to secure all requisite consents of the affected owriers as a condition to Vail Holdings 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 certificate of occupancy or other approvals requisite to the occupancy, use and enjoyment of the Project to the extent the Town is unable to secure the requisite owner consents for those Off-Site Improvements in a timely manner, i.e., by the time that Vail Holdings needs to commence those Off-Site Improvements under its construction schedule for the Project and Public Project (to be adopted in material conformity with ordinary construction practices). Vail Holdings 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 Holdings' sole obligation in connection therewith), Vail Holdings will post security for the completion of those Off-Site Improvements, based on unit costs and construction values applicable to those Off-Site Improvements at the time that they would otherwise be commenced but for the failure of third-party consents. The Town may then undertake the completion of those Off-Site Improvements and resort to that posted security to pay construction costs incurred by the Town in order to complete the same; 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 Holdings, 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 Holdings. The requisite security will be in a form consistent with the Town's generally prevailing practices for construction security, and its 616404.3 RCFISH Jill 11111111111111111 $7$4544 4 Page: 4 of 46 05/26/2004 03:59P Teak J Simonton Eagle, Co 23 R 231.00 D 0.00 disposition will be governed by a written agreement made by the parties on reasonable terms that are consistent with the foregoing provisions. (b) Certain portions of roadways and/or walkways within the Public Project are to be heated for purposes of providing snowmelt capacities (the facilities and apparatus furnishing such capacities being referred to hereinafter as "Public Snowmelt Systems"); for those areas, Vail Holdings will install wirsbo tubing and manifolds as part of the Public Snowmelt Systems, but will not be responsible or obligated to furnish heating transmission lines to the manifolds, the heat source for the Public Snowmelt Systems, or any ongoing operation or maintenance of the Public 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). Notwithstanding the foregoing provisions indicating the contrary, Vail Holdings acknowledges that it will have on-site snowmelt systems within the Project that. can be readily integrated with the Public Snowmelt Systems adjacent to those on-site systems (as set forth in the Off-Site Plans), and agrees that Vail Holdings will undertake that integration and at its expense furnish the heat source (including the bearing of related utility charges) to those integrated Public Snowmelt Systems to points of terminus consistent with the Off-Site Plans, as reasonably determined by the parties. (c) Other than as expressly provided under paragraph 3(b) above, Vail Holdings will not be required to construct or install (and the Off-Site ' Improvements will not include) the Public Snowmelt Systems, and will not be obligated to furnish the heat source and/or bear the related utility charges for the Public Snowmelt Systems, ' or to bear any other ongoing costs of (or provide directly) any maintenance, operation, repair or replacement of the Public Snowmelt Systems following their initial construction and installation (again except to the extent operating and maintenance costs are ever imposed against the Property by virtue of a properly enacted and levied real property tax or assessment of general applicability). Likewise, Vail Holdings will only be responsible for the initial construction or installation of the other Off-Site Improvements, and will not have any obligation or liability in connection with the ongoing maintenance, repair or replacement of the same, or any utility consumption or other charges incurred in conjunction with their operation (and initial construction or installation will itself be subject to any applicable qualifications expressly set forth in this Agreement). (d) To the extent that there are conflicts or inconsistencies between (i) the Off-Site Plans, and (ii) the other provisions of the Master Streetscape Specifications (i.e., those not applicable as part of the Off-Site Plans) or any other Town rules, regulations or standards of general applicability, or that the sources referenced in clause (ii) would on their face impose improvement requirements exceeding those under the Off-Site Plans, then the Off-Site Plans shall be controlling. (e) The parties agree that Vail Holdings may not receive from the Town a certificate of occupancy, either temporary or permanent, for the Project until either (i) -the Project improvements have been substantially completed, or (ii) Vail Holdings has furnished .the Town with security for the remaining uncompleted Project improvements in the form of a performance and payment bond for the work, or alternatively in the form of a letter of credit, or other financial medium reasonably acceptable to the Town, in a dollar amount equal to one hundred twenty-five 878 454 616404.3 RCFiSH S 111111111111111111111111111111111111111 ill 1111111111111 Page: 5 of 46 Teak J Simonton Eagle, CO 23 R 231.00 /26D20.00 3:59P percent (125%) of the estimated out-of-pocket, variable construction costs for completing the Off-Site Improvements. If security is so provided, (iii) Vail Holdings will then be required to \ complete the remaining Project improvements within ten (10) months after the initial issuance of a certificate of occupancy for the Property. However, the foregoing required time for completion will be extended for delays caused by any event or circumstance beyond the reasonable control of Vail Holdings, 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 Holdings fails to complete the Project improvements in a timely manner in accordance with the foregoing provisions, then the Town at its election may undertake the completion of the remaining Project 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 Project improvements. Upon the initial completion of the Project improvements, and the Town's initial acceptance thereof, any security (or the remainder thereof) previously provided shall be returned by the Town to Vail Holdings. The completion of the Project improvements, or the posting of security therefor, will condition only the issuance of a certificate of occupancy, and not the issuance of any building permits or similar approvals for proceeding with the construction of the Project. In addition, the conditions and requirements in favor of the Town under this paragraph 3(e) are subject to any applicable qualifications established under the other provisions of this Agreement. (f) Notwithstanding the other provisions of this paragraph 3 that relieve Vail C Holdings from any obligation for ongoing maintenance, repairs or replacements, or costs associated therewith or operating costs, with respect to, the Off-Site Improvements, Vail Holdings acknowledges and agrees that it shall warranty each of the Off-Site Improvements that it is responsible to construct for a period of two (2) years after the same has been initially accepted by the Town, as required under the Town Code of the Town of Vail (the, "Code"), § 13-3-14. The Town will act diligently to inspect and provide its acceptance of completed work items. (g) Vail Holdings will act reasonably to coordinate the installation of the Off-Site Improvements with other public improvements that the Town may be making proximate to the Property, provided such coordination requirements may not materially interfere with Vail Holdings' construction schedule for the Project, and may not cause a material increase in the costs that Vail Holdings is to incur for the Project. To the extent such coordination requirements, .may comply with the foregoing provisions but still delay Vail Holdings in the completion of any Off-Site Improvements (the "Delayed Improvements"), then the completion/security requirements set forth under paragraph 3(e) above shall also be suspended for a commensurate period; should Vail Holdings otherwise be in a position to secure a certificate of occupancy for the Project during such period of delay, then Vail Holdings will be entitled to receive a temporary certificate of occupancy with appropriate conditions -for the requisite completion of the delayed Off-Site Improvements, or alternatively the provision of security therefor, at the end of the period of suspension. In the case of such a suspension, Vail Holdings will only. be obligated to bear construction costs, and/or post security for such construction costs, in relation to the Delayed Improvements that Vail Holdings would have incurred but for the delays 616404.3 RCFISH 6 1111111111111111111111111111111111111111111111111111111 87845 46 Teak J Simonton Eagle, CO 23 R 231.00 /26D20.00 3:59F attributable to the coordination requirements of the Town; the Town shall be solely responsible for and bear the incremental costs that are attributable to such coordination requirements and delays. Before Vail Holdings may be required to commence and/or post security for the Delayed Improvements, the Town will furnish Vail Holdings with reasonably adequate assurances that the Town has committed sufficient funds for its incremental cost obligations (which shall be due and owing from time to time within thirty (30) days after the Town is given notice of the same). 4. Loading and Delivery. Vail Holdings and the Town mutually acknowledge that presently areas on the periphery of the Property are employed for commercial loading/delivery functions. In the event the on-site construction of the Project is commenced prior to the completion of the Front Door Loading/Delivery Facility, the following measures will be taken to compensate for the resulting loss of loading/delivery capacities proximate to the Property: (a) Subject to receiving the requisite consents and approvals of the County of Eagle (the "County") and the United States Forest Service ("USFS"), Vail Holdings will furnish (or cause its affiliates to furnish) an interim paved surface loading/delivery area to be located on USFS property proximate. to the ski chairlift facility denominated as "Chairlift 1," such interim area to be complemented by paved road access, and with the location, configuration and scope (including number of bays) of that interim area to be as generally depicted on Exhibit E-1 attached hereto. Vail Holdings will apply to USFS and the County for the requisite approvals of this interim area promptly following the making of this Agreement, it being the mutual goal of the Town and Vail Holdings that this interim facility, be completed and operational by June 20, 2004, or as soon thereafter as is reasonably feasible following the securing of the requisite approvals. This interim area will be maintained by Vail Holdings as a commercial loading/delivery site available for public use, subject to any limitations imposed by the governmental approvals and to the limitations set forth below. The use and enjoyment of.this . interim area will be subject to such reasonable rules and regulations as Vail Holdings may prescribe. This interim area will be so used as a commercial loading/delivery site only outside of ski season (i.e., the period for Vail Mountain ski operations established by Vail Holdings or its affiliates) unless construction of the Front Door Loading/ Delivery Facility does not commence by June 20, 2006, in which case this interim area will then be established as a year-round commercial loading/delivery site, with Vail Holdings to expand its facilities as depicted on Exhibit E-2 hereto, and with the corresponding removal of Chairlift 1, but subject to procurement of the requisite governmental approvals therefor (and Vail Holdings and/or its affiliates will apply for those requisite governmental approvals for such year-round use by February 1, 2006, in the event construction of the Front Door Loading/Delivery Facility has not commenced by that date). The required use of this interim area for loading/delivery functions will cease when the construction of the Front Door Loading/Delivery Facility has commenced, as evidenced by the issuance of a building permit therefor. ' (b) Vail Holdings will reimburse the Town's employment costs of engaging an additional code enforcement officer for policing the Town's loading/delivery regulations during the winter season (i.e., the Vail Mountain ski operations season) for those five (5) winter seasons ending in 2005, 2006, 2007, 2008 and 2009, respectively. Vail Holdings' obligation in this regard will not exceed $20,000 for any one winter season. This obligation will terminate, however, upon the Town's issuance of a temporary certificate of occupancy (or comparable 87'8454 616404.3 RUISH 7 Page: 7-of 46 111111111111111111111 IT IC101111 23 R 231,005/26/20000 3:59P alternative form of approval) for the Front Door Loading/Delivery Facility; the Front Door Project, and no employment costs accruing thereafter will be reimbursable. (c) Vail Holdings will exercise commercially reasonable efforts to begin the construction of the Front Door Loading/ Delivery Facility by June 20,.2006, subject to the prior satisfaction of the following conditions and to paragraph 4(d) below: (i) Vail Holdings completes the closing of a land exchange with USFS whereby Vail Holdings acquires from USFS the remaining parcel of USFS property which is requisite to the undertaking of the Front Door Project. Vail Holdings will exercise good faith efforts (subject to its ordinary business judgment) to complete this exchange, and within thirty (30) days after the closing of the exchange, will make application to the Town for the annexation of the acquired exchange parcel and its initial zoning consistently with the Front Door Development Plan. (ii) Vail Holdings secures and maintains in effect pre-sale agreements for the conveyance to third-party buyers of 9 residential units to' be developed within the Front Door Project made upon satisfactory pricing and other terms, as determined in Vail Holdings' ordinary business judgment. (iii) Vail Holdings and the Town make a development agreement for the Front Door Project, and Vail Holdings obtains from the. Town and other applicable governmental authorities all subdivision, platting, development, building permits and other licenses, permits, approvals and actions which are necessary for proceeding with construction of the Front Door Project on terms satisfactory to Vail Holdings as determined in its ordinary business judgment. (iv) Vail Holdings obtains satisfactory approvals from affected private property interests that are necessary to proceeding with construction of the Front Door Project, as determined in Vail Holdings' ordinary business judgment. (v) The undertaking of the Front Door Project, or any component thereof, is not being contested in or the subject of adverse claims in any litigation or legal proceedings hereafter commenced. (vi) Vail Holdings secures and maintains in effect a guaranteed maximum price (GMP) general construction contract for the Front Door Project made with a contractor acceptable to Vail Holdings on pricing and other terms satisfactory to Vail Holdings, as determined in its ordinary business judgment. (vii) Vail Holdings secures and maintains in effect an agreement for construction financing for the Front Door Project made with a' lender acceptable to Vail Holdings in an amount and with interest rate and financial and other terms satisfactory to Vail Holdings, as determined in its ordinary business judgment. (viii) The Front Door Project receives requisite approvals of the board of directors of Vail Holdings and of its parent company or companies (i.e., those 616404.3 RCF1SFi 8 7 8 4 5 4 1111111111111111111111111111111111111111111111111111111 Page: 8 of 46 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 n A 001 companies with control of Vail Holdings by direct or indirect ownership interests). (d) The commencement of construction for the Front Door Project will be further subject to delays caused by the occurrence of any force majeure events, which shall mean any event or circumstance beyond the reasonable control of Vail Holdings, 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. Vail Holdings' obligations under paragraph 4(c) will continue only through June 20, 2008, at which time those obligations will cease if construction of the Front Door Loading/Delivery Facility has not commenced by then (provided that the foregoing will not be construed to waive any breach under paragraph 4(c) occurring prior to that time). (e) Vail Holdings further agrees as follows in connection with the development of the Front Door Project: (i) If construction of the Front Door Loading/Delivery Facility has not commenced by June 20, 2008, then Vail Holdings will cooperate in good faith with the Town to facilitate long-term alternative measures for accommodating loading/delivery needs within Vail Village. This undertaking will cease, however, if construction of the Front Door Loading/Delivery Facility subsequently commences. (ii) If construction of the Front Door Project has not commenced by June 20, 2005, then thereafter Vail ' Holdings will furnish or bear the cost of streetscape improvements thereafter undertaken in the area between the Bridge Street Lodge and the Hill Building in accordance with the following provisions; in addition, if such construction of the Front Door Project has not commenced by June 20, 2008, then Vail Holdings will furnish or bear the cost of streetscape improvements thereafter undertaken in the area between the Hill Building and One Vail Place, again in accordance with the following provisions. The .undertaking of those streetscape improvements will be subject to the Town's securing of any requisite consents of affected owners or third parties, and Vail Holdings will provide reasonable assistance to the Town in the Town's efforts in that regard. Provided such consents are obtained in each instance, Vail Holdings at its election will then either (A) undertake the construction and installation of the streetscape improvements directly, or (B) have the Town undertake the streetscape improvements, in which case Vail Holdings will reimburse the Town for its reasonable costs incurred in the constriction and installation of those streetscape improvements (and in this regard Vail Holdings may make alternative elections for the two sets of streetscape improvements between the different buildings). If Vail Holdings elects to undertake those streetscape improvements directly, the Town will take such actions as may be reasonably necessary or appropriate to authorize the work by or through Vail Holdings in those areas. 616404.3 RCFISH 9 I Page: 9 of 46 05/26/2004 03:5 Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 (iii) Such streetscaping will be undertaken in accordance with the Master Streetscape Specifications, and the Front Door Development Plan approved by PEC on Septembgr 22, 2003; provided, however, that the improvement standards under the Master Streetscape Specifications will be adjusted as necessary to address in a cost-efficient manner the site-specific characteristics of the subject Streetscape areas, as reasonably determined by the parties. Vail Holdings' obligations in this regard will not be construed to preclude or limit Vail Holdings from-securing cost-sharing for the applicable costs from other parties. In the event the Front Door Project is commenced before any of the foregoing streetscape. improvements are completed, then the undertaking of the remainder of those streetscape improvements will be addressed by the governing development agreement for the Front Door Project. 5. Project Platting. The Property is presently subject to certain pre-existing parking easement rights in favor of third parties (the "Easement Holders"). The Town acknowledges that Vail Holdings wishes to convey to the Easement Holders, in fee simple, the paved surface parking area to be incorporated within the Project in exchange for their relinquishment and quitclaim of their pre-existing easement rights. The surface parking area is intended to be a fee estate severed from and independent of a separate fee estate for the subterranean garage facilities. In -furtherance thereof, the Town agrees that the Property may be platted using a three-dimensional methodology, such that the surface parking area and the air space above it (and perhaps some portion of the subterranean areas below it) are established as a discrete subdivision lot, separate and apart from the subterranean area that will house the subterranean garage facilities within the Project. Following the initial establishment of the three-dimensional subdivision plat, Vail Holdings will be permitted, for purposes of conforming the plat's horizontal and vertical boundaries and dimensions to the "as-built" surface and subterranean parking and garage improvements within the Project, to modify the plat by resort to the Town's -administrative plat correction procedures under the Code § 13-13-1, et seq. (or any Code provision hereafter adopted in lieu thereof), but in any case the plat as so modified will still retain the benefits of the encroachment easements under the bargain and sale deed referred to in paragraph 2 above. . 6. [Intentionally Omitted] 7. Scope of Obligations. This Agreement sets forth the full scope of any and all public or other improvements, dedications and exactions that may be required of Vail Holdings in relation to the undertaking of the Project, and no public or other improvements, dedications or exactions or other development conditions may be required of Vail Holdings in connection with the Project except for those expressly provided for in this Agreement. The provisions of this Agreement satisfy any and all requirements under the Development Approvals for the provision of public improvements, dedications or exactions, and requirements under the Code for the making of agreements that govern improvements or for the provision of related security. The specific provisions of this Agreement will be controlling over any inconsistent or conflicting provisions in the Code or any other Town rules, regulations or requirements of general applicability, including, without limitation, Code § 13-3-8 and § 13-3-14. The 3-year period under Code § 13-3-17, as applied to any plat now or hereafter inclusive of the Property, will be 878454 e1e404.3 xcFIsx Page: 10 of 46 10 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 extended as necessary to expire no later than the date that Vail Holdings is required to complete the Off-Site Improvements pursuant to paragraph 3(e) hereof. 8. No Obligation to Develop. Subject to (and only to) Vail Holdings' obligations under paragraph 4(c) above, and notwithstanding any implications to the contrary under the other provisions of this Agreement or -under the Code or other rules, regulations or standards of the Town, Vail Holdings (i) does not and will not have any obligation to undertake and develop the Project, (ii) will have no liability to the Town or to any other party for any failure to develop the Project, and (iii) will not have any obligations to complete any dedications or public improvements under this Agreement independently of the commencement and undertaking of the Project. 9. Liability of Successors. The provisions hereof touch and concern and run with the ownership of the Property. However, any successor owner to Vail Holdings with respect to any portion of the Property or Project will not have any personal liability for any of Vail Holdings' obligations hereunder, except to the extent such successor (i) succeeds to Vail Holdings' position as the owner/developer 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 Holdings hereunder by recorded instrument. Upon any record assignment to and assumption by any successor owner of any of Vail Holdings' obligations hereunder, Vail Holdings 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). In addition, 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 Holdings and its successors and assigns, and (ii) references herein to "Vail Holdings" shall be construed to include its successors and assigns from time to time. 10. 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 Project. If established, the committee will be comprised of representatives from the Town (i.e., the Town Manager or the Manager's designee), Vail Holdings or its affiliates, and other potentially affected parties. The committee will convene on an "as needed" 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 of this paragraph 10 will not be construed to impose any obligation on Vail Holdings or its successors. 11. Proiect License Grants. The Town acknowledges that certain elements of the Project (e.g., access stairways and garage entrances and exits) may encroach into Gore Creek Road, Hanson Ranch Road, or other public areas owned by the Town. The Town specifically agrees that to complement and support the Project, the Town will grant (and Town Council, by its approval of this Agreement, irrevocably authorizes the Town Manager to execute and deliver) 878r454 616404.3 RCFISH 1l Page: 11 of 46 05/26/2004 03:59P Teak J Simonton Eagle, Co 23 R 231.00 D 0.00 irrevocable licenses in perpetuity (coupled with an interest) to Vail Holdings and its successors to allow for the use and enjoyment of any Project elements that may give rise to such an encroachment. Such licenses will be established by agreements made on terms reasonably acceptable to Vail Holdings and the Town. (The foregoing is cumulative with and in addition to the encroachment easements provided for in the bargain and sale deed referred to in paragraph 2 above.) Conversely, Vail Holdings agrees that it will grant to the Town, in the form attached hereto as Exhibit F and as a condition to the issuance of any certificate of occupancy for the Project, a "Park Easement Agreement" to establish a public park use for the open space/park area that Vail Holdings is to establish within a portion of the surface of the Propefty in connection with the development of the Project. The Town agrees to join in and make the Park Easement Agreement with Vail Holdings upon request. 12. 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 Holdings: 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: Kursten Canada, Esq. Fax No.: (970) 845-2555 $78454 Page: 12 of 46 05/26/200403:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 616404.3 RCFISH 12 Jill 1171/454 Page: of If to Town: I 05/26/2004 O3659P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 > Town of Vail 75 S. Frontage Road Vail, Colorado 81657 Attention: Town Manager Fax No.: (970) 479-2157 with a copy to: Town of Vail 75 S. Frontage Road Vail, Colorado 81657 Attention: Town Attorney Fax No.: (970) 479-2157 Either part y 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 terin "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. 13. 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. 14. 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. 15. 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. 16. Estoppel Certificate. At any time and from time to time (but upon not less than ten (10) days' prior notice by Vail Holdings), the Town shall execute, acknowledge and deliver to Vail Holdings 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 Holdings 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 616404.3 RCMSH 13 I 1178454 ' Page: /26/2004 3 f 6 05 59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 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 Holdings, as determined by Vail Holdings. 17. Rules of Construction. The headings which appear. in this Agreement are for purposes of convenience and reference and are not in any sense to be construed as modifying the paragraphs'in which they appear. Each party hereto acknowledges that it has had full and fair opportunity to review, make comment upon, and negotiate the terms and provisions of this Agreement, and if there arise any ambiguities in the provisions hereof or any other circumstances which necessitate judicial interpretation of such provisions, the parties mutually agree that the provisions shall not be construed against the drafting party, and waive any rule of law which would otherwise require interpretation or construction against the interests of the drafting party. References herein to the singular shall include the plural, and to the plural shall include the singular, and any reference to any one gender shall be deemed to include and be applicable to all genders. The titles of the paragraphs in this Agreement are for convenience of reference only and are not intended in any way to define, limit or prescribe the scope or intent of this Agreement. 18. 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 Holdings and so executed as set forth above by the Town Manager. 19. 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 Holdings and the Town, with the Town's execution to be authorized by Town Council ordinance or resolution, as applicable. However, if, on behalf of the Town, the Town Manager, after consultation with the Director of Community Development, 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, including the Exhibits hereto. 20. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 21. 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. 22. No Third Party Beneficiary. Except for.the corporate affiliates of Vail Holdings m (~cluding.The Vail Corporation), who are.expressly intended to be third-party beneficiaries of 616404.3 RCFISH _ 14 Vail Holdings' 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. Vail Holdings' "corporate affiliates" will include any entity which by direct or indirect majority ownership interests is controlled by, controls, or is under common control with Vail Holdings. 23. 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. 24. ' Recording. This Agreement shall be recorded in the real property records for Eagle County, Colorado. 25. No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and Vail Holdings, and nothing contained in this Agreement shall be construed as making the Town and Vail Holdings joint venturers or partners. 26. 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] 878454 1111111111111111111 1111111 Page: 15 of 46 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 616404.3 RCFISH 15 IN WITNESS WHEREOF, the Town and Vail Holdings have made this Lot P-3 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 ~W N 0__ laws of the State of Colorado °e O'K ° e s e e° Y: 00 0 ° Name: t~-L Oq°pp Title: Town Manager ATTEST: ele' onaldson, Town Clerk STATE OF COLORADO ) ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this ~ day of 200 , by S PQK 0 2`h1., _X_ as Town Manager of the To n 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: MARY ANN GRAHAM-BEST Notary Public y Commission Expires October 28, 2006 75 S. Frontage Road Vail, CO 81657 - Hof CQt® /A 0 i'~~ MARY ANN No ry ublic GRAHAM-BEST [Signature Blocks Continue on Following Page] 878454 Page: 16 of 46 05/26/2004 03:59P Teak J Simonton Easle, CO 23 R 231.00 D 0.00 C C 616404.3 RUISH 16 STATE OF COLORADO ) ss: COUNTY OF V,*G\ V, ) VAIL HOLDINGS: The foregoing instrument was acknowledged before me this Ay~--day of 200 , by ~ ii %Z as _X , of Vail Associates Holding, Ltd., a Colorado corporation. Witness my hand and official seal. My commission expires: ~Q~.pTA R y •,:1'0Y . E3 k- OF CO4O My Commission Expires 911712005 8784,94 Teak J Simonton Eagle, Co 23 R 231.00 Page: 17 of /26p2000003659p 616404.3 RCFISH 1 VAIL ASSOCIATES HOLDINGS, LTD.,a Colorado corporation EXHIBIT A Lot -P-3, according to the subdivision plat entitled "Lot P-3; Vail Village Fifth Filing," and recorded March 17, 2004 at Reception No. 871030, County of Eagle, State of Colorado. 11111111111111111111111111111111111,111111111111 Page: 18 of 46 1111111 05/26/2004 878454 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 614623.1 L WM EXHIBIT B-1 Parcel Description A parcel of land located within Tract E, a Resubdivision of Tract E, Vail Village, Fifth Filing, and a Part of Lot c; Block 5-C, Vail Village, First Filing and Golden Peak House, Town of Vail, Eagle County, Colorado, recorded under Reception No. 562007 at the Eagle County Clerk and Recorder, more particularly described as follows: Beginning at the Northwest corner of Lot 1, Block 1, Vail Village, First Filing; whence the Northeast corner of Lot 2, Block 1, Vail Village, First Filing bears N 79°45'00" E a distance of 250.00 feet, said line being the Basis of Bearing for this description. Thence N 07°40'08" W a distance of 70.15 feet; thence N 57°36'12" E a distance of 30.20 feet; thence N 51050'20'-'E a distance of 73.70 feet; thence N 53°08'09" E a distance of 25.46 feet to a point of curvature; thence 50.36 feet along an Arc of a curve to the right having a Central Angle of 48°05'09", a Radius of 60.00 feet, a Chord which bears N 77°1010" E a distance of 48.89 feet; thence S 22°05'29" E a distance of 14.35 feet; thence S 55°48'18" E a distance of 22.50 feet; thence S 10°1853" E a distance of 29.60 feet; thence S 34°38' 15" E a distance of 63.86 feet; thence S 49°49'54" E a distance of 15.58 feet to a point on'the North line of said Lot 2, Block 1; Vail Village, First Filing; thence along said North line S 79°45°00" W a distance of 223.20 feet to the True Point of Beginning, said Parcel containing 0.485 Acres more or less. Brent Biggs PLS427598 For and on the behalf of Peak Land Consultants, Inc I 8?$454 Page: 19 of 46 Teak J Simonton Eagle, CO 23 R 231.00 /26D20 0003;59P C:\Program Files\WinZip\Temp\PirateShip-Lease.doc 54 Page: 20 of 46 05/26/2004 03:59P • Teak J Simonton.Eagle, CO 23 R 231.00 D 0.00 EXHIBIT B-I (cont. E e / Y 4 o W WSS 0 J W ~ jJ IWf a Y / rz Q W m O ` co . Ca 0. ro m C 6 ' O O v~ \ 'emu N j J F ~ J YJ~ .j > V .O t IYi •N 17 N .m+ o in N im i N $ r OA UI SF omJa c 2 Z Z 0 W m W O r- 2 O CL \ -tLl 5LMGE 7) 17A FP ui111v teoo►c EPS~ EN( < 0.15' N0T W o . 10 y t7a! ~ 5 W ' K L W W N V) f W ) W W W r~ W if1 2 O rv u1 ; N ~I i7 m N N m ~ t]1 u ^ n o c rv ° o 1 m ut Z n O v~ ul w Ln to n in t w W J T ) H ~ o r a) n ~ c ,n r o u o 1 ~a m m W I Z V W v O ~"'1 V9 'f f 1 N C Cf Ij ,n J J J J J J ~ J rv J co J .~-V1 n P., y E 'T e .Q ~ S 1 1 J >OO -002 O w >mm..aa ,so 43 c~.t-aco o Z WaQ~[Q.1 Z Emma C i Leal Description EXHIBIT B-2 A 15 foot wide Drainage Easement lying 7.5 feet Northerly and Southerly of the following.described centerline, located within a Resubdivision of Tract E, Vail Village, Fifth Filing, and a Part of Lot c, Block 5-C, Vail Village, First Filing and Golden Peak House, Town of Vail, Eagle County, Colorado, recorded under Reception No. 562007 at the Eagle County Clerk and Recorder, the sides of said easement lengthens or shortens at the boundaries, said centerline being more particularly described as follows: Commencing at the Northwest comer of Lot 1, Block 1, Vail Village, First Filing; whence the Northeast corner of Lot 2, Block 1, Vail Village, First Filing bears N 79°45'00" E a distance of 250.00 feet, said line being the Basis of Bearing for this description. Thence N 07°40'08" W a distance of 16.85 feet to the True Point of BeginninQ;,thence N 71013'1'8" E a distance of 97.10 feet; thence N 34°48'05" E a distance of 78.13 feet to the Point of Terminus; said Parcel containing 0.060 Acres more or less. Brent Biggs PLS427598 For and on the behalf of Peak Land Consultants, Inc. I IN Teak J Simonton Ea 878454 Page: 21 aie, CO 23 R 231.00 0512612004 46 59P D 0.00 C:\Program Files\WinZip\Temp\Drainage.doc 4 87~$' Page: 22 of 46 05/26/2004 03;59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 EXHIBIT B-2 (cont.) / F1 / C / a ~ t / / 4 W d / 4a / W9 u _ i V W W LO . O ( 6 ' W C ~ in r~ cm - ZP $ca Ko • I ~ C CC2 \ ~ G W Lie !V^ J YJ OOsr JN In W WI W W W s ^ I I.1 pl tn~ o n . v i vI 'n N 'n .1 ~ 2 .Z In to VI LA U) w I I J Q H C O IG Y] O O W ~ w u N i r•I < ,n ,n ,o w i J J c h .i I~ ui N Iv N ci N ri ~p vs r ? J - N J n J < J u'7 J ,o J n J m J u Z i m . -r4 Ill h T+►[i 8 r w ~ N ~ Q JY a U1 ~u h O 00 S y J nri w 2 m -'r jC W ~O O s m O 1 F > 0o ° z ~Qo W W U wscx~z~ W'~~pW C~[J V(lLL 0 z C, Oda 4 L C 0 z V 12~C _ 1. UTIU~} ~ P A~ 7 .7 - CA`'CMCNS ` EOOK 70.15. uT\l\S .a LJ t, W • Z In 10 UJWW ' S ~i a EXHIBIT B-2 (cont.) Legal Description An Electrical Easement located within a Resubdivision of Tract E, Vail Village, Fifth Filing, and a Part of Lot c, Block 5-C, Vail Village, First Filing and Golden Peak House, To-vNm of Vail, Eagle County, Colorado, recorded under Reception No. 562007 at the Eagle County Clerk and Recorder, more particularly described as follows: Beginning at the Northwest corner of Lot I, Block 1, Vail Village, First Filing; whence the Northeast corner of Lot 2, Block 1, Vail Village, First Filing bears N 79°45'00" E a distance of 250.00 feet, said line being the Basis of Bearing for this description. Thence N 79°45'00" E a distance of 10.01 feet; thence N 07°40'08" W a distance of 17.00 feet to the True Point of Beginning; thence N 07°40'08" W a distance of 28.00 feet; thence N 82°19'52' E a distance of 22.00 feet; thence S 07°40108" E•a distance of 28.00 feet; thence S 82°]9'522' W a distance of 22.00 feet to the True Point of Beginning, said Parcel containing 0.014 Acres more or less. Breni Biggs PLS427598 For and on the behalf of Peak Land Consultants, Inc. 878454 Page: 23 of 46 05/25/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 C:Trogram FileslWinZiplTemp\Elec-Exhibit.doc 878454 I Page: 24 of 46 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 EIRIBIT B-2 (cont.) / Q / / W Z w / f / t6 Q l W J, VA jr r o~ _ C L W < ua O r-K tG Q• ~ J ~~f \ c \ W \ o O Om \ P. 0 V1 (N \ \ O N C 2 N Z N WO N < J ' ~G ~-u5 .j J M J >c Z z W J e. . W m W n e -n ~ i l n s c to n~ m o i ~<< =n ni l of ~ o n ci ~ v~ ,n u~i Ni .n n .r Z 2 2 to in to in M W I ' ~ m I I r _ ( C C i!7 O lO ~L CO Li u7 ,o m n l Z ci ri vi N m n u i J ~ In h N N N In w J J h J n J ~ J ~n J w J n J cc ...1 V Z m N S IM O Y1 J1 N 8 O V~ „uz H 0 O -j 4 .i r aw >oo w x~ w ~ ~ 4 O ws~a~ >moall ~ V OIM cx woa3co~ 0 a Ep~y e `J 4 u 2 ;O c z 3 W Ln < N !n +1 m Li W W Q, a ! ' -j m N C m r4 t V t N z W ~ fa r ~ p C r ) (R ME", \ - UTtUTY EFS~AGE j9) C. 00K 174 P nD 14 Ile Qua J 2F4 La .4 Ir ' 'j 4 LF~ N j EMBIT B-2 (cont.) Legal Description A 30' Grading and Utility Easement located within a Resubdivision of Tract E, Vail Village, Fifth Filing, and a Pan of Lot c, Block 5-C, Vail Village, First Filing and Golden Peak House, Town of Vail, Eagle County, Colorado, recorded under Reception No. 562007 at the Eagle County Clerk and Recorder, more particularly described as follows: Beginning at the Northwest corner of Lot 1, Block 1, Vail Village, First Filing; whence the Northeast corner of Lot 2, Block 1, Vail Village, First Filing bears N 79°45100" E a distance of 250.00 feet, said line being the Basis of Bearing for this description. Thence N 07°40'08' W a distance of 74.15 feet; thence N 57°36'12" E a distance of 30.20 feet; thence N 51050'20"'E a distance of 2.98 feet; thence S 07°40'08" E a distance of 82.95 feet; thence S 79°45'00" W a distance of 30.03 feet to the Point of Beginning, said Parcel containing 0.053 Acres more or less. Brent Biggs PLS427598 For and on the behalf of Peak Land Consultants, Inc. 87'8454 Page: 25 of 46 05/26/2004 03:59P Teak J Simonton Ea91e, CO 23 R 231.00 D 0.00 878454 Page: 26 'of 46 Teak J Simonton Easie, CO 23 R 231.00 /26D20.00 3:59P EXHIBIT B-2 (cont.) 0SGW N1 / t K =j J / / f / W Ow Lo, ~ p J V VI p < W NG N I~ a ~ a - cm ~o ~ 4. 0 0 Y'b \ o \ \ W W W C 14 Ln o 'a ry' Oni !n, r, V) w 2 N Z '7 \ w ms s,. W a~ Z~ W 9 N07 p ' wow f JW ILI 4 J 3 in z I MM = i W W F ~ ¢ „ O wwvx~ V 3> m~a aw ~cw j. ~ V p p fsO. zr:o,z Lazar:. j 2 ~ T W V. -9. < sJ r O m J y >G z u Z Q1 b W W W W W 1a ~w w •n c c . n . ~ un l ~ .n Ln i rv ~ n . z z z n ~ ~ ~ ~ W I l l im a d O T in C C io iA W Z IV ~ rv O n 7 u7I r'7 O K~ N ,p Cf (p n N vj z - J rv n + ~n w n m J J J J J J J J 1 o R a b~ 1 in 0 N p W < 2w~ Ci< W V } W p C J = noMa _ < Z r.uSG 0 r JQ J. 7 'n2 ~ O W ~ `O C ~ V °f o " o Z Ln a Ln m n \ \ ' `,~p~~ a~FRGE:a23j 70.15 L~~rn LpSLu'LN1 - 11-w . 878454 Page: 27 of 46 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 EXHIBIT C-1 Leaal Description A Parcel of land located in the Right-of-Way of Hanson Ranch Road, Vail Village, Fifth Filing, according to the Plat thereof recorded November 12, 1965, at Reception No. 102538 in the office of the Clerk and Recorder. County of Eagle, State of Colorado, being more particularly described as a three-dimensional area bounded by upper and lower surfaces -whose perimeters are described below, and bounded on its sides by vertical surfaces connecting the perimeters of those upper and lower surfaces: For both the upper and lower surfaces, beginning at the Southeasterly corner of Lot P-3, according to the subdivision plat entitled "Lot P-3, Vail Village Fiflh Filing" (recorded March 17, 2004, at Reception No. 871030), whence the Northeast corner of said Lot P-3 bears N 07°14'02" W a distance of 133.48 feet, which constitutes the Basis of Bearing for this legal description, and urith elevations for this legal description being based on HARK station "Spraddle", having an elevation of 8287.82 feet (NAVD 88); Lower Surface Boundary: Beginning at said Southeasterly Corner of said Lot P-3; thence along the Northerly Right- of-Way line of Hanson Ranch Road, said line being the Southerly boundary line of said Lot P-3, 32.76 feet along an Arc of a Curve to the right, having a Central Angle of 15°37'04", a Radius of 120.17 feet, a Chord which bears N 76°29'43" W, 32.66 feet to a point on said Southerly boundary line of said Lot P-3; thence vertically downward to a point at an elevation of 8153.0 feet, being the True Point of BeginninH for the lower surface boundary; thence S 82°45'58" W a distance of 36.79 feet to a point at an elevation of 8153.0 feet; thence N 53°15'06" W a distance of 52.41 feet to a point at an elevation of 8153.0 feet; thence ascending vertically to a point at an elevation of 8155.0 feet; thence N 53°15'06" W a distance of 28.00 feet to a point at an elevation of 8155.0 feet; thence ascending vertically to a point at an elevation of 8156.5 feet; thence N 53°15'06'' W a distance of 49.50 feet to a point at an elevation of 8156.5 feet; thence N 09025'45" E a distance of 16.18 feet to a point at an elevation of 8156.5 feet; thence 41.34 feet along an Arc of a non-tangent Curve to the right having. a Central Angle of 20°04'33", a Radius of 1] 7.98 feet, a Chord which bears S 63°08'35" E a distance of 41.13 feet to a point at an elevation of 8156.5 feet; thence S 53°06'19 E a distance of 16.42 feet to a point at an elevation of 8156.5 feet; thence downward vertically to a point at an elevation of 8155.0 feet; thence S 53°06' 19" E a distance of 28.00 feet to. a point at an elevation of 8155.0 feet; thence downward vertically to a point at an elevation of 8153.0 feet; thence S 53°06'19" E a distance of 46.58 feet to a point at an elevation of 8153.0 feet; thence 32.68 feet along an Arc of Curve to the left having a Central Angle of 15°34'52", a Radius of 120.17 feet, a Chord which bears S 60°53'45'' E a distance of 32.58 feet to a point at an elevation of 8153.0 and the True Point of Beginning for the lower surface boundary. Upper Surface boundary: Beginning at said Southeasterly Corner of said Lot P=3; thence along the Northerly Right- of-Way line of Hanson Ranch Road said line being the Southerly boundary line of said Lot P-3, 32.76 feet along an Arc of'a Curve to the right, having a Central Angle of C:\WINNT\Temporary Internet Files\]E\Temporary Internet Files\OLK1E\3-d plat 15°37'04", a Radius of. 120.17 feet, a Chord which bears N 76°2943". W, 32.66 feet to a point on said Southerly boundary line of said Lot P-3; thence vertically downward to a point at an elevation of 8191.0 feet, being the True Point of BeQinninp, for the upper surface boundary; thence S 82°45'58 W a distance of 36.79 feet to a point at an elevation of 8191.0 feet; thence downward vertically to a point at an elevation of 8190.0 feet; . thence N 53°15'06" W a distance of 10.56 feet to a point at an elevation of 8189.9 feet; thence N 53°15'06" W a distance of 28.49 feet to a point at an elevation of 8189.9 feet; thence N.53°15'06" W a distance of 28:51 feet to a point at an elevation of 8188.2 feet; thence N 53°15'06" W a distance of 62.35 feet to a point at an elevation of 8184.0 feet; thence N 09°25'45"2 W a distance of 16.18 feet to a point at an elevation of 8184.0 feet; thence 41.34 feet along an Arc of a non-tangent Curve to the right having a Central Angle of 20°0433", a Radius of 117.98 feet, a Chord which bears S 63°08'35" E a distance of 41.13 feet to a point at an elevation of 8187:2 feet; thence S 53°06' 19 E a distance of 29.27 feet to a point at an elevation of 8189.5 feet; thence S 53°06'19 E a distance of 25.77 feet to a point at an elevation of 8189.4 feet; thence ascending vertically to a point at an elevation of 8190.4 feet; thence S 53°06' 19 E a distance of 35.96 feet to a point at an elevation of 8190.8 feet; thence 32.68 feet along an Arc of Curve to the left having a Central Angle of 15°34'52", a Radius of 120.17 feet, a Chord which bears S 60°5345" E a distance of 32.58 feet to a point at an elevation of 8191.0 and the True Point of Beginning for the upper surface boundary. C Gordon S. Page III PLS429048 For and on the behalf of Peak Land Consultants, Inc. 878454 Page: 28 of 46 05/26/2004 01:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 CAWINNT\Temporary Internet Files\IE\Temporary Internet Files\OLK1E\3-d plat legal.doc ~ 8 84 54 . Page: 29 of 46 05/25/2004 03:59P ,Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 FMTBIT C-1 (cont.) J J:EO Q . J 1 ! Q O x i < > O - v N Y JOa °mm I e ~ Q . + IS of BEARINGS) V 133.46 (BAS (e S07'14 E U c V J O I ' Y D I l .l S J m v J Z7 "k" 3 3 ~ s a '~s 1 wa E.. E- r Z. }~G O W WWA W r LJ t U 4a~o F Dtnm <it k~ a~...~ i.,,••.,,.,. r.;.-,n:®: r.r~r,-i-.-rvur'1 .r•iBrtu':,ru-a,u•,..t 0. V j A Z b V a x a 94 ti m x b ~ t (Z d Z' M 4 ~z c 4 d ti ® GJ r W U ` C5 wtt. tr =1 FMt=nm EXHIBIT C-2 BARGAIN AND SALE DEED [Statutory Form - C.R.S. § 38-30-115 (Modified)] TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of Colorado ("Grantor"), whose street address is 75 South Frontage Road West, Vail, Colorado 81657, for good and valuable consideration, in hand paid or received, hereby sells and conveys to VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation ("Grantee"); whose street address is c/o Vail Resorts Development Company, P.O. Box 959, 137 Benchmark Road, Avon, Colorado 81620, the real property in the County of Eagle and State of Colorado that is described on Exhibit A attached hereto (the "Property"), with all its appurtenances, but subject to the reservations in favor of Grantor set forth below. 1. Grantor hereby reserves a right of entry in and to the Property in accordance with and subject to the following provisions: (a) The Property, which the Grantor has vacated as part of the Hanson Ranch Road public right-of-way, has been so vacated and is being conveyed under this Deed in order to allow Grantee to integrate the Property as part of a real estate development project to be constructed within the Property and contiguous property owned by the Grantee and legally described on Exhibit B attached hereto (collectively the "Development Site"), which project is intended to incorporate a subterranean parking structure (to be complemented by paved surface parking) and an. open space/park area to be allocated to public use by a Park Easement Agreement to be made between the Grantor and Grantee (collectively the "Project"). In connection with the undertaking of the Project: (i) The conveyance under this Deed is subject to the requirement in perpetuity that the Property be used by Grantee only for parking and ancillary uses, and that elements of the parking garage facilities within the Project, as those facilities may be altered, modified, redeveloped or reconstructed from time to time (whether; as a result of any casualty to, obsolescence of, or other loss or damage affecting the parking garage facilities, or whether by elective action), must be installed within the Property, or some portion thereof, no later than three (3) years after the date of this Deed (subject to' extension under paragraph (ii) below), and thereafter must be maintained within the Property, or some portion thereof (collectively the "Parking Condition"). In the event any such alteration, modification, reconstruction or redevelopment of those parking garage facilities entails any demolition and removal of all parking garage elements from the Property, compliance with the Parking Condition will still be maintained so long as new elements of the parking garage facilities are installed within the Property, or some portion thereof, within three (3) years after all such elements have been initially removed from the Property (again subject to extension under paragraph (ii) below). (ii) The time periods' established under paragraph (1) above for the requisite installation of garage facility elements will be extended for any delays $78454 Page: 30 of 46 613848.3 RCFISH 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 8784 54 0346 Page: 05/26/2004 of :59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 caused by any event or circumstance beyond the reasonable control of Grantee, 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. (b) The Parking Condition will be regarded as having failed in the event (i) Grantee ever uses the Property for purposes other than parking and associated uses, (ii) -Grantee does not install and maintain parking garage elements within the Property in accordance with the foregoing provisions of paragraph (a), or (iii) Grantee affirmatively elects in writing for a permanent, irrevocable abandonment of the parking garage facilities (in which case the Parking Condition will fail as of the date that such election becomes effective and final, as set forth in the instrument governing the election). In the event a common interest community is established under the Colorado Common Interest Ownership Act ("CCIOA," - C.R.S. § 38-33.3-101 et seq., as the same may be subsequently amended or replaced)) that is inclusive of the Property, then the termination of that common interest community by a recorded agreement of the subject owners in accordance with CCIOA shall be deemed an election to abandon under clause (ii) above. An abandonment of the garage facilities within the Property may be effectuated by leaving the garage facilities in place and/or by demolition of the facilities and fill of the Property, or portions thereof, in accordance with the Town of Vail's applicable construction and building requirements. (c) In the event there is ever any failure of the Parking Condition, then the Grantor (as its sole right or remedy in connection therewith) shall have a right of entry for condition broken, such that upon the exercise thereof the Grantor will reacquire fee title to the Property. To exercise this right of entry, the Grantor will be required to record in the real property records for Eagle County, Colorado, a notice specifying that it is exercising this right of entry (and the exercise will also remain subject to applicable requirements of legal process). In addition, in the event elements of the parking garage facility are redeveloped and installed within the Property after any failure of the Parking Condition under clause (ii) in paragraph 1(a) above, but before the right of entry is actually exercised, then the right of entry will cease to be enforceable unless and until there is again another subsequent failure of the Parking Condition. (d) The Grantor, within ten (10) days after request by notice from time to time, will execute and deliver a written estoppel certificate, made expressly for the benefit of Grantee and any of its designees set forth in such notice, confirming (i) compliance or non-compliance, as the case may be, with the Parking Condition at that time, and (ii) if the right of entry is then exercisable, whether or not the right of entry has been exercised. Any such estoppel certificate shall be made on any form that Grantee may reasonably prescribe in its request notice, including the incorporation of an I acknowledgement for putting the estoppel certificate in recordable form. If the Grantor fails to execute and deliver any requested estoppel certificate within the prescribed 10- 613848.5 RMSH 2 11111 Jill 1111 878454 : 32 46 05//26/2004f03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 day period, Grantee shall be conclusively deemed in compliance with the Parking Condition at that time. 2. Grantor further reserves for its benefit an easement in and upon the Property for subjacent support for the surface of existing Hanson Ranch Road as it overlies the Property (including portions of Hanson Ranch Road as reconstructed by Grantee in connection with the Project). The foregoing provisions limiting the Grantor's right of entry will not be applied or construed to limit this easement for subjacent support, which will take effect as of the date of this Deed and continue in effect on an uninterrupted basis in perpetuity. This easement for subjacent support will be further governed by the following provisions: (a) Grantee acknowledges that it will be reconstructing portions of Hanson Ranch Road overlying the Property in connection with the Project. In that regard, the Grantee agrees that the Grantor, in connection with the requisite construction approvals, may require that the pertinent portions of Hanson Ranch Road be so constructed that paved street sections can be widened without requiring additional structural modifications, and that pavement, curb, and gutter shall be so constructed that they can be removed and replaced without physically affecting Project structures located within the Property. (b) As part of this easement, for subjacent support, the Grantee covenants that the Property and the development of the Project therein will fiunish adequate support for overlying Hanson. Ranch Road for the ordinary use thereof for its intended purposes (and this covenant shall run in perpetuity as part of the easement), and that Grantee will be obligated for any damage to Hanson Ranch Road caused by a failure of such support. However, this covenant shall apply only so long as overlying Hanson Ranch Road is maintained in substantially the same condition in which it exists as of the date hereof (subject to Grantee's reconstruction of portions thereof as referenced aboveor any other condition that does not materially add to the support burdens imposed on the Property and Project.. 'Grantee will not have any responsibility or liability for. any failure of support which is caused by surface conditions that do not remain in compliance with the foregoing provisions, and Grantor in turn covenants to Grantee that Grantor will not cause or permit any such non-compliant surface conditions that result in damage to the Project, or otherwise cause or suffer damage to the Project arising by, through or under Grantor. (c) Grantee fi rther covenants that it will assume full responsibility for any and all damages incurred to any drainage or other utility facilities of the Town or other utility providers located within Hanson Ranch Road that arise from Grantee's construction activities in connection with the Project. Any 'and all replacements or repairs of those facilities which are necessitated by any such damage attributable to Grantee under the foregoing provisions shall be made by the Town at the sole expense of Grantee. (d) Grantee shall indemnify the Town and save the Town harmless from and against any and all costs, claims, or damages arising out of any breach by Grantee of its 613848.5 RCFISH 8?84a4 : 33 46 05~/26/2004{03:59P Teak J Simonton Eagle, 00 23 R 231.00 D 0.00 obligations and -assumed responsibilities under the foregoing provisions of this paragraph 2. . (e) So long as the right of entry has not been exercised under paragraph 1 above, Grantee, at its expense and without cost to the Town,'shall procure and maintain in effect a comprehensive general public liability insurance policy with 'a single occurrence limit of not less than $2,000,000.00, and written on an occurrence basis. This coverage shall expressly name the Grantor as an additional insured, and shall specifically furnish a contractual liability endorsement for the Grantee's indemnity and other obligations under the foregoing provisions of this paragraph 2. This coverage shall not be construed as a limit upon the liability of the Grantee for its obligations and responsibilities under the foregoing provisions. The Grantor, as the owner of Hanson Ranch Road, hereby . also grants Grantee a perpetual easement appurtenant benefitting the ownership of the Development Site and the Project that permits the existence and continuing'maintenance of any encroachments into Hanson Ranch Road by garage or related improvements developed within or adjacent to the Property, whether such encroachments arise from engineering errors, errors in original construction or any reconstruction, restoration, rehabilitation or improvement, any settlement, shifting or movement of any improvements, or any other cause of an unintentional nature, provided that any such encroachment may not have a material adverse effect on the ordinary use and enjoyment of Hanson Ranch Road in its current configuration and composition. However, the foregoing will not be construed to limit the Grantor's ordinary exercise of police powers, as a sovereign municipality, to withhold Project approvals for any material deviations between actual construction and approved plans therefor, and to require correction-of such deviations, all in accordance with generally applicable requirements of the Grantor established by the exercise of its police powers. In the event any legal proceeding arises out of the subject matter of this Deed' and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and the presiding- court will be bound to make this award).. The terms of this Deed shall be governed and construed in accordance with the laws of the State of Colorado. Exhibits referenced elsewhere herein as attached to this Deed are incorporated herein by this reference. . By the Grantee's acceptance of this Deed by its execution in the space furnished below, the terms of this Deed shall be binding upon and inure to the benefit of Grantee and its successors in interest in the ownership of the Property (and all references herein to the Grantee shall be deemed to include such successors in interest). Each successor owner of the Property (including the Grantee named herein) shall be liable only for those obligations of the Grantee hereunder that accrue during the term of such owner's ownership. Furthermore, during any times that the Property is subject to an owners association (established under CCIOA or otherwise), then the individual owners will not have any personal liability for the Grantee's obligations hereunder so long as those obligations are assumed by the association. 6ma.5 RUISH 4 Signed this day of , 2004. TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado ATTEST: By: Lorelei Donaldson, Town Clerk Name: Title: STATE OF ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2004, by as of the Town of Vail, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado. Witness my band and official seal. My commission expires: Notary Public . [Joinder og Grantee Follows as Next Page] 8784544 Page: 34 of 46 Teak I Simonton Eagle, Co 23 R 231.00 /26/20000 3:ssp 613848.5 RCFISH 5 Acceptance of Grantee . The undersigned Grantee, VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation, hereby accepts the terms of and shall be bound by this Deed. VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation By: Name: Title: STATE OF COLORADO ss: COUNTY OF The foregoing instrument was acknowledged before me this day of , 2004, by as of Vail Associates Holdings, Ltd., a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public 878454 Page: 35 of 46 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 613948.5 RCF75H EXHIBIT A [To be the legal description attached as Exhibit C-11 878454 Page: 36 of 46 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 613"8.5 RCF]SH A-1 EXHIBIT B, Lot P-3, according to the plat entitled "Lot P-3, Vail Village Fifth Filing," recorded March 17, 2004, at Reception No. 871030. 878454 Page: 37 of 46 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 613948.5 RCFI5H B-1 830 2950 ANNUAL/ PERENNIAL BED PREPARATION 840 2950 PICEA PUNGENS, BLUE SPRUCE, 8 FOOT 850 2950 POPULUS TREMULOIDES, ASPEN, 4" SPECIMEN CLUMP 860 2950 POPULUS TREMULOIDES, ASPEN, 3 " CALIPER .870 2950 POPULUS TREMULODIES, ASPEN, 2 " CALIPER 880 2950 BETULA GLANDULOSA, BOG BIRCH, #5 CONT. 920 2950 RIBES ALPINUM, ALPINE CURRANT, #5 CONT. 930 2950 ROSA FOETIDA -BICOLOR', AUSTRIAN COPPER ROSE, #5 CONT. 940 2950 SALIX EXIGUA, COYOTE WILLOW, #1 CONT. 950 2950 SALIX GEYERIANA, GEYER WILLOW, #1 CONT. 970 3300 COLORED CONCRETE CURB AT HANSON RANCH ROAD 990 3300/ COLORED CONCRETE BAND 2515 1170 4410 STONE STEPS AT PARK 1240 4415 STONE VENEER SITE WALL (ARKANSAS VALLEY STRIP STONE VENEER) . 1260 4415 LIGHT POLE AND STONE VENEER BASE (ARKANSAS VALLEY STRIP STONE VENEER) 1470 15000 RADIANT SNOWMELT TUBING 1480 15000 SNOWMELT SYSTEM CONTROLS 1500 15000 SNOW VMLT ZONE BALANCING 1520 16000 ACCENT LIGHTING 1560 16000 EVENT POWER RECEPTACLES • ..I $78454 "I Page: U of 46 Teak J Simonton Eagle, CO 23 R 231.00 /26D20.00 3:59P 310 SF 4 EA 3 EA 9 EA 7 EA 51 EA 30 EA 16 EA C, 50 EA 50 EA ; 50 LF 30 SF 58 SF 94 LF : . 3 EA 5,435 SF 4 EA ; 4• EA 4 EA 1 EA 2 TRASH CANS, 1 SKI RACK U,1-99(3U4)0VjFG\MGSter\PROP- Rj- BIOed + r t r% 1 1 r f r / r / J ; rr, ' ~:t ;;ti's - l 1 11 r I r' ca W aw® ! rr MIN Jr r1 !t Jf rJ Jr r/ t/' rr J~ rr r+ r/ ►r / i 1 r 1r rJ %r rt Jr iJ ;r Jj J~ rr !J rr . r ~~y: ~ r/ I ~ j r ► 1 ~ f~'r1 /f rJ tr /r /J t /r / r/ r _ a. ~ 1 1 i I 1 ! Jr / l / r / 1 / /r / • i •ti.,,, 1 '1 1 1 1 ~ 1 ip"' /J JJ JJ J! ~ ~ ; / ~ o.l 4 i . i l ~ t` it t\ t 1 \t\ ` \t 1 \ ~ t1 ,1 '1 1~T i l 1 / / ~ l •s 1 t ~ 1 I \ /r . ~ ~5,~' 1 •t if 4~ 1 ~31C' a i~ ~ , o \;r \ l 1 ~ \1m .M~ cc .e 5 O-w 1., I i i i t gr 1 A . ED' LL ~ p ~ / \ l 87'8.454• Page: 39 of 46 05/26/2004 03:59P • p J ~~v~+~uvy~yrnsszent~KCaP- r J .d c 1:8 '1 .0 1.4/ ! Jam, 1"' t i 1 r / i i J J /J 00' r- 01 _.L ; X11 ! JJ I'//!Jf JJ IJJ JJ JJJ JJ I/ r~k:~ri•°.~="-' -;s ri t 1 ~ /r I ,J r ®0 /0 ~ V r J r !V \ t r 1 / I l ~ l l f t 1 t { 1 a~r;'• I 1 1' r9pi ! ! ! J J/ J' ! ! '"+~fL,~:^,'Pi Lc`~_ , t IP'•-: „4:% •'y \ \ \ t~ 1 cc \ \ \ \ "t Nq ! / I / / w„.~L3r.iq. • !464 , \ ~ \ ~ 1~ ~ i ! ! / :`2x.;1.• fill:wq t c.'` 1 1 \ \ \ 1 \ \ \ P, ' r y ! ...Ceti = •i. . , : . ' \ \ \ \ , 1 1 i \ it; na. ~~a_ PLC :i~~':"•} _J-a~~{,i 1 -tl_ a. { 1 1 \ \ •"l ~u o:r •3 ~'•~i M•L~,ly.v ^.lt.. k h ; / , ~•n. ~ ! 1. 1 12 \ r. "►F::''`'^:u• ao_w •ss•:- ~ ~a;•:- 1 s H ~ ,n i 1 1 I 1 •.t \ V ` ! 1 \ 1 r• 10 \ 878454 Page: 40 of 46 Teak J Simonton Eagle, CO 23 p 9111 m5/26n2004n03(58P ( 3 1 ~r t EXHIBIT F PARK EASEMENT AGREEMENT THIS PARK EASEMENT AGREEMENT (this "Agreement") is made as of the day of , 2004, by and between VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation ("Owner"), and the TOWN OF VAIL, a municipal corporation and political subdivision of the State of Colorado (the "Town"). . FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, Owner hereby grants to the Town, and the Town hereby accepts, an easement (the "Easement") upon, across and over the "Park Area" (defined below) for the use and enjoyment of the same for recreational purposes that are consistent with ordinary uses for public parks within the Town that are of a size commensurate with the Park Area, including, but not limited to, picnicking, sight-seeing, and bird watching (the "Park Uses"), and also for the subjacent support of the surface of the Park Area by those underlying subterranean areas owned by the Owner. The "Park Area" shall mean that certain real property in the Town of Vail, County of Eagle, State of Colorado, which is presently owned by Owner and is legally described on Exhibit A attached hereto and incorporated, herein by this reference. The Easement is granted and accepted upon the following terms and conditions: 1. The Easement shall be for the use and benefit of members of the general public (collectively the "Invitees', all of whom shall be regarded as invited guests of the Town for purposes of C.R.S. § 33-41-103. It is mutually intended.by the parties that the Owner have the full benefit and protection of the provisions of C.R.S. § 33-41-103. The Owner specifically agrees that no charge shall be levied upon and no revenue shall be collected from any Invitee for any entry into the Park Area for the use and enjoyment of the Easement. 2. The Owner may limit and regulate the scope and extent of the uses to be enjoyed as Park Uses, especially given the limited size of the Park Area, as determined by Owner in its ordinary business judgment (including, without limitation, regulations and limitations to protect the Owner's interests in relation to the Park Area), but after good faith consultation with and due consideration of input from the Town, and provided that such limitations and regulations must be generally uniform in nature and may not discriminate between the Owner (or its successors) and the Invitees in the proper enjoyment of the Park Uses. In connection therewith: (a) The Owner may post notices of pertinent limitations and regulations. Any infraction of any posted limitation or regulation, or any use or activity within the Park Area. that is unlawful or materially inconsistent with the intended purposes of the Easement, shall be outside the scope of the Easement and may be regarded by the Owner as a trespass upon the Park Area. The Owner will have rights against the pertinent Invitee(s) to exercise such remedies as may ordinarily be available at law or equity for a trespass, and may also preclude access to affected portions of the Park Area for appropriate periods of time and resort to other lawful self-help remedies in order to prevent the continuation or, or mitigate the effects of, any such trespass or series of trespasses. Owner will consult in good faith with the Town before exercising any such self-help remedy (except in cases of emergency necessitating immediate action, as determined by Owner in its ordinary business judgment). III I I ~ Jill 878454 Page: 41 of 45 606416.7 RUISH I 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 878 45 4 Page: 42 of 46 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 (b) In connection with any enforcement action for a trespass, Owner will be entitled to recover, from the trespassing Invitee(s), Owner's costs-of enforcement, including attorneys.' fees. Enforcement of Owner's rights. under this paragraph 2 will be at Owner's sole election, and Owner will have no obligation to enforce its rights for the benefit of the Town or any Invitees. Owner will have no obligation to the Town or any Invitees to establish security for or otherwise police or manage activities within the Park Area. The Easement rights in favor of the Town will include the right to come upon the Park Area and enforce its laws as it may do so in any public place; provided; however, that the Town agrees that it shall solely bear any liability that may result therefrom, and that it shall'pay any sums, costs or expenses, including attorneys' fees, that Owner may, incur in connection with any such liability or claim thereof. The Easement will not include any rights of the Town to improve or make alterations or modifications to the Park Area. 3. Notwithstanding the Town's acceptance of the Easement grant hereunder, the Town shall not have any obligation or responsibility for maintenance of the Park Area, and any maintenance to be undertaken will be borne solely by or through the Owner. Any landscaping or other improvements to the Park Area will be undertaken in accordance with the generally prevailing legal requirements of the Town as applied to the Park Area (including any arising under any applicable design or development plans approved by'the Town). 4. The Easement shall be non-exclusive, and the Owner will retain all rights to use and enjoy the Park Area for any uses or purposes that are consistent with the Park Uses as (r established hereunder. In any event these retained rights may include, without limitation, the following: (a) The construction, installation and location within the Park Area of paved walks and stairs (and snowmelt facilities therefor), landscaping, park benches, and other furnishings and improvements associated with park or pedestrian uses. Owner will also have the right to alter, modify, maintain or remove any such landscapingfurnishings or improvements from time to time. All furnishings and improvements that may be undertaken shall be in accordance with the Town's generally prevailing development and design requirements, as applicable. (b) Utilities uses, and specifically (and again without limitation) the grant of easements to. utility suppliers for the location, use and enjoyment of utility facilities within the Park Area. (c) The construction, modification, alteration, maintenance, use and enjoyment within the Park Area of a pavilion building, vehicular entrances and exits, stairs and stairways, and other improvements and facilities (collectively the "Parking Appurtenances") that provide access to or are otherwise associated with the use and enjoyment of subterranean parking garage facilities to be located in part under the Park Area (the "Garage"). As part of the Owner's rights under paragraph 2, Owner may establish and enforce rules, regulations. and measures (including security systems) for purposes of limiting access to and the use and enjoyment of the Parking Appurtenances to owners of interests in the Garage and their invitees. 606416.7 RMSH 2 5. Nothing herein shall be deemed or construed as a grant or public dedication of the fee ownership interests in the Park Area, and the Owner shall retain those fee ownership interests in. all respects,. it being.the intention of the parties hereto that the sole property interest conveyed hereunder is and shall be the easement rights in favor of the Town that constitute the Easement, as the same is governed by the other provisions hereof. 6. The term of this Agreement and the Easement shall be in perpetuity; provided, however, that in any event the Town shall retain the power and authority to amend, modify or terminate this Agreement and the Easement pursuant to any further agreement made mutually with the Owner, which further agreement may be approved and adopted by the Town by resort to the same procedures by which this Agreement has been approved and adopted by the Town. 7. In the event any litigation or legal proceeding arises out of this Agreement between the Owner and the Town and is prosecuted the final judgment, the prevailing party shall be entitled to recover from the other (and the presiding court will be bound to award) all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees. 8. This Agreement shall be binding upon and inure to the benefit of the Town and the Owner and the Owner's successors in interest in the ownership of the Park Area. References herein to the "Owner" shall mean from time to time the party or parties that are then the owner and holder of record fee title to the Park Area. No Owner shall have any liability for obligations, if any, accruing under this Agreement following the term of such Owner's ownership. Rights to enforce the Easement will be and remain vested solely in the Town, and no Invitee shall have any enforcement rights. The Town may not assign or delegate the Easement or any of the Town's rights or obligations hereunder, and at Owner's election any purported assignment or delegation by the Town will be null and void ab initio and/or constitute a breach by the Town of this Agreement. 9. This Agreement shall be governed by and construed.in accordance with the laws of the State of Colorado. 10. This Agreement may be executed in counterparts, each of which shall constitute an original, and which together shall constitute one and the same agreement. [Balance of page intentionally left blank] 878454 Page: 43 of 46 05/26/2004 03:59P Teak J Simonton Eagie, CO 23 R 231.00 D 0.00 606416.7 RCFISH 3 IN WITNESS WHEREOF, Owner and the Town have made this Park Easement Agreement as of the day, month and.year first above written. VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation By: Name: Title: STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 2004, by as of Vail Associates Holdings, Ltd., a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public [Signature Blocks Continued on Next Page] Nil 878454 Page: 44 of 46 Teak J Simonton Eagle, Co 23 R 231.05/26D20 00 3 59P C 606416.7 RMSH 4 TOWN OF VAIL, a municipal corporation and political subdivision of the State of Colorado By: Name: Title: STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 2004, by as of Town of Vail, a municipal corporation and. political subdivision of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public 878454 Page: 45 of 46 05/26/2004 03:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 606A16.7 RMSH 5 - EXHIBIT A Legal Description for Park Area [To be completed consistently with the final platting for the Project] 878454 Page: of 46 05/26/200403:59P Teak J Simonton Eagle, CO 23 R 231.00 D 0.00 A-l IN WITNESS WHEREOF, the Town and Vail Holdings have made this Lot P-3 Development Agreement effective as of the day, month and year first above written. TOWN: ~UV;' p~ TOWN OF VAIL, a municipal corporation duly organized and existing by virtue of the -7 _ r laws of the State of Colorado 1r, 'gv ° 0 By: Name: CpL0111 W~ Title: Town Manager ATTEST: L relei onaldson, Town Clerk STATE OF COLORADO ) ) ss: COUNTY OF_EaAj~ The foregoing instrument was acknowledged before me this . day of .y , 200_, by ~yAJag as Town Manager of the op6 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. MARYANN GRAHAM-BEST, Notary Public My commission expires: MY Commission Ex i ST. -Frontage Road Vail, Co 61657 COLO Nq ary ~ublic GRA+"A""EST xgnature Blocks Continue on Following Page] 616404.3 RCFISH 16 VAIL HOLDINGS: VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation By: Name Title: STATE OF COLORADO ss: t~~ ) COUNTY OF The foregoing instnunent was acknowledged efore me this ~ -`day of 200 by - c-~. as of Vail Associates Holding, Ltd., a Colorado corporation. Witness my hand and official seal. My commission expires: 616404.3 RCFISH 17 C miary runic G, BARGAIN AND SALE DEED [Statutory Form - C.R.S. § 38-30-115 (Modified)] THE VAIL CORPORATION, a Colorado corporation ("Grantor"), whose street address is c/o Vail Resorts Development Company, P.O. Box 959, 137 Benchmark Road, Avon, Colorado 81620, for. good and valuable consideration, in hand paid or received, hereby sells and conveys to TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of Colorado ("Grantee"), whose street address is 75 South Frontage Road West, Vail, Colorado 81657, the real property in the County of Eagle and State of Colorado that is described on Exhibit A attached hereto and incorporated herein by this reference (the "Property"), with all its appurtenances, but subject to the limitations and reservations in favor of Grantor set forth below. 1. The conveyance under this Deed is subject to the requirement and limitation in perpetuity that the Property be used by Grantee only as a public park and for public park purposes (the "Use Restriction"). In the event there i5 ever any breach of the Use Restriction, then the Grantor shall have and hereby irrevocably reserves, for itself and its successors and assigns, a right of entry for condition broken and corresponding power of termination (the "Right of Entry"), such that upon the exercise thereof fee title to the Property will be reacquired by and revert to Grantor. To exercise this Right of Entry, the Grantor will be required to record in the real property records for Eagle County, Colorado, a notice.specifying that it is exercising'this Right of Entry (and the exercise will also remain subject to applicable requirements of legal process). The Right of Entry shall be cumulative with and in addition to the other rights and remedies available to Grantor at law or equity for any breach of the Use Restriction, including injunctive relief. 2. Grantor further reserves for its benefit (i) an easement and easement right over the Property for the installation, alteration, removal, maintenance, replacement, use and enjoyment of utility and storm drainage facilities, services and functions (the "General Easement Reservation"), and (ii) specific easements for the installation, alteration, removal, maintenance, replacement, use and enjoyment of storm drainage, electric and other utility facilities, services and functions and for grading purposes within specific easement areas as set forth on Exhibit B attached hereto and incorporated herein by this reference (the specific easements and the General Easement Reservation are sometimes referred to hereinafter collectively as the "Easement Rights"). For purposes of the foregoing, utilities may include gas, electric, water, sanitary sewer, irrigation, fiberoptic and other types of utility services. This reservation of the Easement Rights encompasses and includes the right of Grantor to grant and establish utility easements in favor of utility suppliers upon such terms as those suppliers may prescribe, and also in favor of affiliates of the Grantor that may own of develop other properties which may need or can benefit from utilities or drainage services or facilities routed over the Property. With respect to the General Easement Reservation, however, the use thereof and any easements to be established pursuant thereto will be mutually determined by Grantor and Gran tee (acting reasonably); in addition, any use or enjoyment of the General Easement Reservation or easements established pursuant thereto will be subject to the rights of the Grantee to locate park improvements within the Property in material conformity with the proximate configuration thereof shown on Exhibit A hereto, and also landscaped areas within the Property which are mutually determined by Grantor and 878455 618721.1 RCFISH Page: 1 of 12 1111111111111111111111111111111111111111110 11111111 05/26/2004 03:59P Teak J Simonton Eagle, CO 66 R 61.00 0 0.00 V-A7g7W,'3 SKLD LG 172.20.29.20 EG 878455-2004.001 Grantee (acting reasonably). Any exercise or enjoyment of the General Easement Reservation or any easements established pursuant thereto may not interfere with, damage or require the removal of any such park improvements or landscaping (except that any easement holder may disturb landscaping or improvements as necessary to use or enjoy its easement rights, provided the holder substantially replaces any landscaping or improvements damaged as a result). Grantor and/or Grantee will make such further documents as may be reasonably necessary or appropriate to effectuate any easements. within the scope of Grantor's reserved rights under this paragraph 2 that are not inconsistent with the foregoing provisions. Any specific use or enjoyment of the Easement Rights, or. any specific easement established pursuant thereto, may at Grantor's election constitute an easement in gross for any designated easement holder and its assignees or an easement appurtenant for.the benefit of any real property designated by Grantor. For purposes of this Deed, "affiliates" of Grantor shall include any corporation or other entity which by virtue of direct or indirect ownership interests is controlled by, controls, or is under common control with Grantor. In the event any legal proceeding arises out of the subject matter of this Deed and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and the presiding court will be bound to make this award). The terms of this Deed shall be governed and construed in accordance with the laws of the State of Colorado. Exhibits referenced elsewhere herein as attached to this Deed are incorporated herein by this reference. The Right of Entry and Easement Rights and related terms of this Deed shall run with the land in perpetuity as a burden to the ownership of the Property and shall be binding upon Grantee and its successors in interest in the ownership of the Property (and all references herein to the Grantee shall be deemed to include such successors in interest). ]Balance of page intentionally left blank] _ INIIII~'~IIII~'IIIIVIIIIIIIYIIIIN~IIC~111111~ 8'8455, Teak J Simonton Eagle, CO 66 R 61.00 D 0. 00 618721.1 RUM - 2 SKLD LG 172.20.29.20 EG 878455-2004.002 Signed this day of May, 2004. THE VAIL CORPORATION, a Colorado corporation N By: STATE OF ss:. COUNTY OF ) The foregoing instrument wa acknowledged be re me this Je day of 2004, by CLAAtc,~ as of The orporation, a Colorado corporation. Witness my hand and official seal. My commission expires:?~ cz~ Qd j+" of y Publi [Acceptance of Gran follows on next page] Te Si ton CO 56 178455 618721.1 RCPISH 3 SKLD LG 172.20.29.20 EG 878455-2004.003 Acceptance of Grantee The undersigned TOWN OF VAIL, a municipal corporation duly-organized and existing under and by virtue of the laws of the State of Colorado, as the Grantee under this Deed, hereby accepts the terms of and shall be bound by this Deed. . TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado By: Name. Stan a B. Zemler Title: To Manager STATE OF COLORADO } ss: COUNTY OF The foregoing instrument was acknowledged before me this-day of 2004, by Stanley B. Zemler as Town Manager of the Town of Vail, a municipalCebrporation duly organized and existing under and by virtue of the laws of the State of Colorado. Witness my hand and official seal MARY ANN GRAHAM-BEST, Notary Pubic My commission expires: My Commission EuG►ires October 2A 2a_. 75 S. Frontage Road Vail, CO 81657 OF COLO PAN N t Public `.074ARY IIN~II~IIII~I~IIIIIiIVllll!IUIIII~Vllllilll e'r;. oak J Simonton Eagle, CO 86 R 61.00 0 0.00 618721.1. RCFISIi SKLD LG 172.20.29.20 EG 4 878455-2004.004 C EXHIBIT A Parcel Description A parcel of land located within Tract E, a Resubdivision of Tract E, Vail Village, Fifth Filing, and a Part of Lot c, Block 5-C, Vail Village, First Filing and Golden Peak House, Town of Vail, Eagle County, Colorado, recorded under Reception No. 562007 at the Eagle County Clerk and Recorder, more particularly described as follows: Beginning at the Northwest corner. of Lot I. Block 1, Vail Village, First Filing; whence the Northeast corner of Lot 2, Block 1, Vail Village, First Filing bears N 79°45'00" E a distance of 250.00 feet, said line being the Basis of Bearing for this description. Thence N 07°40'08" W a distance of 70.15 feet; the N 5703612" E a distance of 30.20 feet; thence N 51 °50'20" E a distance of 73.70 feet; thence N 53008'09" Ea distance of 25.46 feet to a point of curvature; thence 50.36 feet along an Arc of a curve to the right having a Central Angle of 48005109", a Radius of 60.00 feet, a Chord which bears N 77°] 0'10" E a distance of 48.89 feet; thence S 22°05'29" E a distance of 14.35 feet; thence S 55°4 818" 8" E a distance of 22.50 feet; thence S 100 18'53" E a distance of 29.60 feet; thence S 34°38'15" E a distance of 63.86 feet; thence S 49°49'54" E a distance of 15.58 feet to a point on the North line of said Lot 2, Block 1, Vail Village, First Filing; thence along said North line S 79°45'00" W a distance of 223.20 feet to the ?rue Point ofBeginning, said Parcel containing 0.485 Acres more or less. Brent Biggs PLS427598 For and on the behalf of Peak Land Consultants, Inc Isakillllllllltollllhlllllml'I~I66Y'llllll;~'Illllm~' 8955;.. C:1Program FileskWinZ.ipk?empTirateShip-Lease.doc SKLD LG 172.20.29.20 EG 878455-2004.005 878455 Page: 6 of 12 Teak J Simonton Eagle, CO 66 R 61.00 05/26/21004 00 3 59p EXHIBIT A (Cont.) l / r ~ r / F 1 • / tie I L / w L . . . > ~X r Go z r ` a A U*nLITY z 1P00L t7a ppGE M) N07'A0'OE.K 70.18 Vt11 ~ h r# e 'f 0 it1 o .~q a U o~z$ e. S SKLD LG 172.20.29.20 EG 878455-2004.006 EXHIBIT B Legal Description A 15 foot wide Drainage Easement lying 7.5 feet Northerly and Southerly of the following described centerline, located within a Resubdivision of Tract E, Vail Village, Fifth Filing, and a Part of Lot c, Block 5-C, Vail Village, First Filing and Golden Peak House, Town of Vail, Eagle County, Colorado, recorded under Reception No. 562007 at the Eagle County Clerk and Recorder, the sides of said easement lengthens or shortens at the boundaries, said centerline being, more particularly described as follows: Commencing at the Northwest corner of Lot 1, Block 1, Vail Village, First Filing; whence the Northeast corner of Lot 2, Block 1, Vail Village, First Filing bears N 79°45'00" E a distance of 250.00 feet, said line being the Basis of Bearing for this description. Thence N 07°40'08" W a distance of 16.85 feet to the True Point of Beginning; thence N 71 °13'18" E a distance of 97.10 feet; thence N 34°48'05" Ea distance of 78.13 feet to the Point of Terminus; said Parcel containing 0.060 Acres more or less. Brent Biggs PLS#127598• For and on the behalf of Peak Land Consultants, Inc. 878455 Page: 7 of 12 05/26/2004 03:59P Teak J Simonton Eagl cc 66 R 51.00 D 0. 00 C:\Program Files\WinZip\Temp\Drainage.doe SKLD LG 172.20.29.20 EG 878455-2004.007 878455 Page; 8 of 12 1111111111111111111111111111111 _.EXHIBIT B (Cpnt7~ k T Simonton lEliall CO 66 R 61.00 5~26D2O.00 3.8 n t / u / 6gly / > .ll : I/ y,n L H u o . W Z z 1Z ° N = . ~ . S ~ ti m J J J J .J J J J Ye r~ a pym~~ R~CV~ O 4 r 4 0 ~Uv~^rC T h b b ` • a r O \ d r (EOO% 174 PICC L1Si1~ C~ 70.1$ HO'1'a0.O6 f { C SKLD LG 172.20.29.20 EG 878455-2004.008 EXHIBIT B (Cont.) Leval Description An Electrical Easement located within a Resubdivision of Tract E, Vail Village, Fifth Filing, and a Part of Lot c, Block 5-C, Vail Village, First Filing and Golden Peak House, Towfi of Vail, Eagle County, Colorado, recorded under Reception No. 562007 at the -Eagle County Clerk and Recorder, more particularly described as follows: Beginning at the Norihwest.comer of Lot L, Block 1, Vail Village, First Filing; whence the Northeast corner of Lot 2, Block 1, Vail Village, First Filing bears N 79°45'00" E a distance of 250.00 feet, said line being the Basis of Bearing for this description. Thence N 79°45'00" E a distance of 10.01 feet; thence N 07°40'08" W a distance of 17.00 feet to the 'true Point of Be inning;'thence N 07°40'08" W a distance of 28.00 feet; thence N 82°1952" E a distance of 22.00 feet; thence S 07°40'08" E a distance of 28.00 feet; thence S 82°1952" W a distance of 22.00 feet to the True Point of Beginning said Parcel containing 0.014 Acres more or less. Brent Biggs PLS427598 For and on the behalf of Peak Land Consultants, Inc. 878455 Page: 9 of 12 05/2612004 03:59P Teak J SLmonton Eagle, CO 66 R 61.00 D 0. 00 C:\Program FileskWinZiplTentpMec-Exhibit.doc SKLD LG 172.20.29.20 EG 878455-2004.009 878455 Page; 10 of 12 4 03: 0 59F Teak J Simonton Engle, CO 66 R 61.00 5/2002 0 0 - >;atitt~tz li. (l.:bnt.) ~ r If / ~ a / 16 A / F 7 d V " OG~►. i~ + ~J i~ bQdT i~ .~1w N } o. . , ~ ' : Z 2 ' • Ij ~ • j ~ 'rv t r • 4 ~i ~o ik z d J J J 5 Al o+~ r Wpp c'j~ 8 ; 'g WW ~8 \ a 19 N d fk•~ aso >o r4 ~ ye 49 ov ~s~,§ $ V i SKLD LG 172.20.29.20 EG 878455-2004.010 EXHIBIT B (Cont.) Legal Description A 30' Grading and Utility Easement located within a Resubdivision of Tract E, Vail Village, Fifth Filing, and a Pan of Lot c, Block 5-C, Vail Village, First Filing and Golden Peak House, Town of Vail, Eagle County, Colorado, recorded under Reception No. 562007 at the Eagle County Clerk and Recorder, more particularly described as follows: Beginning at the Northwest corner of Lot 1, Block 1, Vail Village, First Filing; whence the Northeast corner of Lot 2, Block 1, Vail Village, First Filing bears N 79°45'00" E a distance of 250.00 feet, said line being the Basis of Bearing for this description. Thence N 07°40'08" W a distance of 74.15 feet; thence N 57°36'12" E a distance of 30.20 feet; thence N 51.°50'20" E a distance of 2.98 feet; thence S 07°40'08" E a distance of 82.95 feet; thence S 79°45'00" W a distance of 30.03 feet to the Point of Beginning, said Parcel containing 0.053 Acres more or less. Brent Biggs PLS#i27598 For and on the behalf of Peak Land Consultants, Inc. IIakNISViIn tIInV1II1~VVII~u~WIINIiRdu', 8'a~s=,• C:1Program Files\WinZip\Temp\Utility Drainage.doc SKLD LG 172.20.29.20 EG 878455-2004.011 4378455 Page: 12 of 12 05126/2004 03:59P Teak J Simonton Eagle, CO 66 R 61.00 D 0.00 - EXHIBIT. B (Conn-, / / ~ ~ 41 v ~ ~ : / lb J R ~r r u r ~ Z ~ " C.t f i • ^ V p g P 3 P + f C13 z z a w ij I J V h , ~ J „Wj h ~ J N J h J ~i Y1 ~i to J h ~1 q ~J J b T 8 N Y i - i - r >O >insi 9148" .V 13 N ~ 0 t~ ORO O p~ C0. .y3 A 600 W. 4 A \ Ofy e' • 1 ` ~ Wy <gw rL f~ ~ Ne a dd Z PJ N _ ~ ~ ~ 1'S ~ • f.E~~ Ch L~~L,1 NCAO'Odrvl co % ■ SKLD LG 172.20.29.20 EG 878455-2004.012 CONSTRUCTION EASEMENT AGREEMENT THIS CONSTRUCTION EASEMENT AGREEMENT ("Agreement") is made as of the ~fOday of May, 2004, by and between CHRISTIANIA AT VAIL CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit corporation ("Grantor"), and VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation ("Grantee"). RECITALS: A. Grantor is the governing owners association for Christiania at Vail Condominiums (the "Condominiums") located in the Town of Vail, State of Colorado (the "Town"), which. Condominiums were established by that certain condominium map recorded in the real property records for Eagle County, Colorado (the "Records"), on March 18, 1993, at Book 604, Page 296, and the related condominium declaration also recorded in the Records on March 18, 1993, at Book 604, Page 295. The real property which is included within that condominium map and condominium declaration is sometimes referred to hereinafter as the "Servient Estate." Grantor is making this Agreement on its own behalf and on behalf of its constituent members (the "Members"), collectively and singularly, which Members are the owners of units within the Condominiums. B. Grantee is the owner of certain real property contiguous to the Servient Estate that is legally described as Lot P-3, according to the subdivision plat entitled "Lot P-3, Vail Village Fifth Filing," recorded March 17, 2004, at Reception No. 871030, County of Eagle, State of Colorado, together with an adjacent subterranean portion of Hanson Ranch Road right- of-way that has been vacated by the Town by its Ordinance No. 11, Series of 2004 (together the "Dominant Estate"). Grantee intends to commence the development and construction on the Dominant Estate of a subterranean parking garage facility complemented by ancillary surface improvements, together with a surface paved parking area with attendant landscaping, and also an open space/park area (collectively the "Garage Project"). C. In order to commence construction of the Garage Project, Grantee has requested that the Grantor grant an easement to install, operate, test and inspect, within subterranean portions of the Servient Estate, construction tieback anchors, soldier beams and related materials necessary to provide interim support for and to stabilize construction, excavation and installation for the Garage Project and prevent subsidence of soils during the course of construction (the "Tiebacks"). Grantor has determined to grant the requested easement in accordance with and subject to all the terms and provisions of this Agreement. NOW, THEREFORE, in consideration of the above premises, and the mutual covenants and agreements set forth herein, Grantor and Grantee covenant and agree as follows: 1. Grant of Construction Easement. The Grantor, on its own behalf and on behalf of its Members, hereby grants and conveys to Grantee, as an appurtenance for the benefit of the Dominant Estate and the Garage Project to be developed thereon, an irrevocable, temporary, non-exclusive construction easement upon, over and beneath a portion of the Servient Estate to accommodate the construction, installation, operation, testing, inspection, maintenance, 878456 6160]0.6 RCFISH I Page: i of 13 05/26/2004 03:59P Teak J Simonton Eagle, Co 174 R 66.00 D 0.00 -):7 L/ 7b use and enjoyment -of the Tiebacks in conjunction with and throughout the course of the construction, installation and development of the Garage Project (the "Easement'). The \ Easement shall cover an area within and under the surface of the Servient Estate as reasonably necessary or appropriate for Construction (hereinafter defined) in accordance with the Plans (hereinafter defined), and otherwise for the use and enjoyment of the Easement as contemplated herein and the performance of Grantee's obligations and duties hereunder. This Easement shall become effective as of the date of the mutual execution and delivery of this Agreement, and shall' remain in full force and effect until the completion of the construction of the Garage Project, which for this purpose shall be deemed to occur (i) only at such time as Grantee secures a permanent, unconditional certificate of occupancy issued by the Town, or any comparable alternative form of permit or approval that the Town may issue for this type of project under its prevailing practices, which authorizes the ongoing occupancy, use and enjoyment of the Garage Project, or (ii) if and when Grantee voluntarily relinquishes its rights under the Easement by a recorded written instrument to that effect executed by Grantee. The Easement may be used, enjoyed and occupied solely by Grantee and its agents, employees and contractors, and any other agents, contractors and invitees acting by, through or under any of them (collectively with the Grantee, the "Permittees"). 2. Construction Process, Mechanic's Liens. (a) Grantee covenants to the Grantor that the Tiebacks will be constructed and installed in material conformity with the plans and specifications therefor (collectively the "Plans") identified as "Construction Tieback Exhibit" for "Vail's Front Door - Vail Park and Garage at Lots P-3 & J", prepared by Peak Land Consultants, Inc., Job No. 1167, and dated as of May 2, 2004, and the "Earth Retention System" prepared by Schnable Foundation Company, Job No. 07-3447, Sheets 1 to 3, inclusive, dated February 9, 2004, and last revised April 26, 2004 (and including plan, soldier beam schedule, elevators, sections and borings, and general notes). The Plans may be further modified as required by the Town or as determined by Grantee (so long as any such modifications do not create any material conflict with the other provisions set forth below). Grantee covenants that the construction and installation of the Tiebacks (the "Construction") will be undertaken in a good and workmanlike manner, in conformity with all applicable foundation or building permit and legal construction requirements of the Town (which foundation or building permit, as applicable, must be issued prior to commencement of Construction), and pursuant to customary drilling construction methods for purposes of minimizing noise and vibration; that the Construction will not require entry onto or penetrate or physically damage the surface of the Servient Estate, will not entail the transport by crane by Grantee's contractors of any construction materials or weighted loads, directly over any occupied portions of the Servient Estate, and will not penetrate or physically damage any building improvements presently located on the Servient Estate; that the Construction will not impair any subjacent or lateral support for the surface of or any improvements or appurtenances on the Servient Estate, as such support is. necessary for the use and enjoyment thereof; and that the Construction will not break, cut or impair the normal function of any utility lines or facilities located on and serving the Servient Estate. Notwithstanding the foregoing, Grantor agrees that Grantee will be afforded access to individual condominium units and other improvements within the Servient Estate as reasonably necessary or appropriate infurtherance of the 616010.6 RUISH 2 878456 Page: 2 of 13 05/26/2004 03:591 Teak J Simonton Eagle: CO 174' R 66.00 D 0.00 foregoing and to otherwise effectuate the Easement rights and the other provisions ,Hereof. (b) Pursuant to the Construction, Grantee shall not perform physical work or construct or place any improvement, structure or building material, or any object on the surface of the Servient Estate except with the Grantor's written consent, and any of the foregoing, unless consented to, may be removed by Grantor without liability for damage arising therefrom and with Grantee to bear all cost and expense of such removal. If any debris, mud and other unsightly conditions upon the surface of the Servient Estate, or damage thereto result from Grantee's actions pursuant to the construction of the Garage Project, the removal and/or remedying of the same will be commenced by Grantee within 24 hours thereafter, and Grantee, at its sole cost and expense, shall repair and restore any damage to the surface of the Servient Estate, such that it is returned to substantially the condition it was in immediately prior to such disturbance. Should Grantee breach . this obligation, then the provisions of paragraph 5 below will apply to such breach. Notwithstanding the foregoing provisions to the contrary, Grantee will only be required to remedy in the'ordinary course of the work any such damage or conditions that are inherent in the nature of any work on the Servient Estate consented to by Grantor. In any event the foregoing shall not be construed to apply to the exercise of other pre- existing easement rights. (c) Grantee will not cause or permit any mechanic's lien claims to be made against any ownership interests in the Servient Estate that arise from the Construction. If any such mechanic's lien claim is recorded against any such property interests, then Grantee shall, within thirty (30) days after the recording of such lien claim, obtain the release of the affected property interests in the Servient Estate from such lien claim, whether by discharge, bonding or otherwise, or alternatively furnish the Grantor with other security for the applicable lien claim in amounts commensurate to those under the legal bonding requirements and otherwise reasonably satisfactory to Grantor (and so long as this discharge or alternative security requirement is satisfied, the Grantee may contest any mechanic's lien claim in good faith). If Grantee shall fail to furnish the requisite release or security within the aforesaid 30-day period, the Grantor may, at its option, secure the release of the lien claim by any means available, including bonding, settlement or resort to any security furnished by Grantee, in which case Grantee shall, within ten (10) days after notice of demand, reimburse Grantor for the latter's costs and expenses incurred in securing the lien release, including reasonable attorneys' fees (except to the extent recouped from any such security). (d) Allen G. Thurman, a consulting engineer engaged by Grantor in connection with this Agreement ("Grantor's Representative"), shall be furnished the Plans. Should it be necessary that Grantor's Representative or other contractors or consultants engaged by or through Grantor's Representative have access to the Dominant Estate during the construction of the Garage Project for undertaking inspections to assure compliance with the terms and provisions hereof, reasonable access shall be provided, so long as such access will not materially interfere with the construction of the Garage Project or pose a material risk of bodily injury or property damage; Grantor must obtain Grantee's prior authorization before entering the Garage Project or construction site on 616010.6 RCFISH 3 878456 111111111111111111 111~ 1111 11 Page: 3 of 13 05/26/2004 03:59P Teak J Simonton Eagle, CO 174 R 66.00 D 0.00 the Dominant Estate for purposes of the foregoing, which consent will not be unreasonably withheld. Grantor's Representative will be provided all changes to the . Plans, if any. (e) . Due to the age of the Servient Estate and the nature of the activities contemplated by this Agreement, Grantor desires to monitor any potential movement of and resulting damage to the Servient Estate related to the construction of the Garage Project, as follows: (i) For the purpose of monitoring any such movement, Grantee, consistent with prior consultations with Grantor's Representative, (A) will survey the interior and exterior of the Servient Estate, with such survey to include "spot crack mapping," in order to establish an informational base of the existing condition of the buildings and improvements thereon, which survey will be completed before the commencement of any excavation activities within the Servient Estate, and (B) will install a maximum of six (6) monument measuring devices (the "Monument Devices") affixed along the length of the Servient Estate exterior building wall that lies adjacent to the common lot line between the Dominant Estate and Servient Estate. The Monument Devices shall be installed and maintained in good condition at Grantee's sole expense, and shall be installed prior to the commencement of any excavation activities within the Servient Estate. Grantor shall cause Grantor's Representative to cooperate diligently with Grantee in furtherance of expediting these functions. (ii) The Monument Devices shall be monitored by Peak Land Consultants, Inc., or another qualified surveyor or engineer reasonably acceptable to Grantor's Representative ("Surveyor"), at Grantee's sole expense, as follows: (A) once a week during excavation and Tieback activities and.during construction of the entire foundation of the Garage Project, until the foundation is completed; (B) one time per month after completion of the construction of the foundation and until the Garage Project is complete (as evidenced by the Town's issuance therefor of a temporary or permanent certificate of occupancy or comparable alternative form of permit or approval); and (C) one time each six (6) months after the Garage Project is complete for a period of one (1) year. The Surveyor shall report; either by telephone, facsimile, e-mail or personal delivery, the results' of the measurements taken pursuant to this paragraph of the Agreement, to Grantor's Representative, within one day after completing each set. of measurements. Grantor's Representative shall make his telephone, fax, e-mail and address information available to Grantee for this purpose. (iii) In the event that any monitoring of the Monument Devices detects movement in the building improvements located on the Servient Estate (A) that is in excess of vertical deflections between building corners of .25 inch trigger levels, and/or horizontal deflections between building corners of .25 inch trigger levels, and (B) that' constitutes differential movement resulting in foundation damage to such building improvements (a. "Material Movement"), then Grantee shall institute all measures reasonably necessary to prevent any 111456 616010.6 Rcicsx q Page: 4 of 13 05/26/2004 03:59P Teak J Simonton Eagle, CO 174 R 66.00 D 0.00 further foundation damage ("Supplemental Measures"), and shall discontinue the work of the Garage Project as necessary to prevent such further foundation damage until those Supplemental Measures are implemented. In that event, the Grantee will also communicate in writing to Grantor: (C) the extent of the detected differential movement causing the damage; (D) a proposed schedule to increase monitoring; and (E) detailed plans and/or changes to the construction methods for implementing the Supplemental Measures. With respect to any foundation damage, the Grantee shall also provide (F) the proposed repair to any buildings or improvements on the Servient Estate damaged-as a result of such differential movement, (G) the projected timing to complete such repairs, and (I) the identity of the proposed contractor to conduct such repairs. Grantor shall approve any proposed repair and proposed contractor prior to the commencement of any such repair (with such approval not be unreasonably withheld or delayed). (f) Intrusions of the Tiebacks and the Construction under the Servient Estate shall not damage or impair the function of Grantor's improvements, including, but not limited to, Grantor's foundation, trees, subsurface support caissons, water and drainage facilities and any utility service. Grantor's Representative shall have the right (subject to the limitations in paragraph 2(d) above) to inspect the Construction work to be performed and the exposed temporary shoring and foundation tieback system on the Servient Estate while the excavation is still open. Following the occurrence of any Material Movement, the Grantor's Representative shall also have the right to take independent measurements from the Monument Devices up to two times a week during excavation adjacent to the Servient Estate and until all below-grade foundation improvements on the Dominant Estate have been completed. (g) Grantor's exercise of, or inaction with respect to, inspection and monitoring rights under paragraphs 2(d), 2(e) and 2(f) above and the provisions thereof (i) shall not prevent Grantor from recovering damages pursuant to any breach of Grantee's obligations under this Agreement, and Grantor's right to recover damages is expressly reserved; (ii) shall otherwise have no effect on the indemnification provided pursuant to paragraph 4 of this Agreement; and (iii) shall not be construed to make Grantee subject to any liabilities or remedies in the absence of any property damage or other liability or loss suffered by the Grantor in violation of this Agreement. 3. Non-Exclusive. The Easement shall be non-exclusive, and the Grantor, on its own behalf and on behalf of its Members, expressly reserves the right to the undisturbed use, enjoyment and occupancy of the surface of and all other portions of the Servient Estate for any and all purposes that are not inconsistent with the terms of the Easement and the rights and interests afforded to Grantee under the terms hereof. Grantor, on its on behalf and on behalf of its Members, specifically agrees that none of them shall do or permit anything to be done which physically disturbs or impairs the function of the Tiebacks during the course of the Construction, or which otherwise violates or materially interferes with the use and enjoyment of the Easement by Grantee or the other Permittees. 4. Indemnity. Grantee, its successors and assigns, shall fully indemnify and defend Grantor and its Members, their successors and assigns, and shall hold each of them 878455 616010.6 RCFlsa 5 Page: 5 of 13 05/26/2004 03:59P Teak J Simonton Eagle, CO 174 R 65.00 D 0.00 harmless from and against any claims, causes of action, suits, liabilities, damages or losses and expenses of whatever kind or nature that arise or are incurred by them as a result of any personal injury, bodily injury, sickness, disease, death or property loss or damage, including lost profits, occasioned from the undertaking of the Construction or any negligence or willful misconduct of the Grantee and occurring in relation to the use and enjoyment of the Easement and by action or inaction of any contractor or employee, agent or servant of any contractor engaged by, through or under Grantee, or any breach of the Grantee's obligations under this Agreement. This indemnity will also cover and include costs and expenses, including reasonable attorneys' fees and consultant's fees and expenses, caused by, relating to or arising out of any matter indemnified under the foregoing provisions, together with any liens asserted against the Servient Estate as a result of work performed by or for Grantee pursuant to the rights and privileges granted Grantee by this Easement (subject to Grantee's rights under paragraph 2(c) above), if the related damage, loss, claim, expense or lien is caused in whole or in part by the act, omission, error, professional error, mistake, negligence or other fault of Grantee, its contractors or subcontractors or any employee or agent of the same. Notwithstanding any implications to the contrary in the foregoing provisions, the foregoing shall not be construed to waive or limit any requirements imposed upon the indemnified party by law to mitigate its damages, and this indemnity shall not apply to matters stemming from the negligence, willful misconduct or breach of this Agreement by the Grantor and/or any Member(s). This Indemnification provision. shall survive termination or expiration of this Agreement. 5. Self Help; Reimbursement. If Grantee fails in any of its obligations hereunder to protect the Servient Estate from harm during and arising out of the construction of the Garage Project, Grantor shall have the right, after notice to Grantee and opportunity to Grantee to cure such failure by the exercise of due diligence (but not to exceed 60 days.. except as necessary to complete repairs), to take any action that Grantor, in good faith and after due consultation with Grantor's Representative, deems appropriate to cure such failure for purposes of protecting the Servient Estate from harm or damage during the construction of the Garage Project. Grantee shall reimburse Grantor for any out-of-pocket costs incurred by Grantor in protecting the Servient Estate pursuant to this paragraph and for any repairs or clean up of the Servient Estate related to the Grantee's failure to protect the Servient Estate from harm and damage during the Garage Project as provided above ("Self Help Expenses"). Grantee shall reimburse Grantor for Self Help Expenses within thirty (30) days of receiving notice of Self Help Expenses, as provided in paragraph 18 of this Agreement, together with reasonable documentary evidence of the costs incurred. 6. Access. In the event the construction of the Garage Project necessitates any closure of adjacent streets that precludes vehicular access to the main entrance of the building improvements on the Servient Estate for a period of longer than one hour (a "Restricted Closure"), then the following provisions shall apply: (a) Grantee shall provide Grantor with not less than 24 hours' prior notice of the pending Restricted Closure; and (b) For the duration of any Restricted Closure, Grantee at its sole expense will make available a reasonable service for shuttling occupants of the Servient Estate to and from their vehicles, if parked at the Vail Village public parking structure or 616010.6 RCPISH 6 I 111456 Page: 6 of 13 i 05/26/2004 03:59P Teak J Simonton Eagle, CO 174 R 66.00 0 0.00 i other comparable location during the pendency of any Restricted Closure, in any instance where those parties are transporting by vehicle any items that are difficult to carry on foot > for a substantial distance (e.g., luggage, grocery bags). The shuttle service will provide street pick-up and drop-off points which are as close to the Servient Estate as the Restricted Closure effectively permits. However, Grantee also -agrees that no Restricted Closure may occur: during the portion of the Vail ski season (i.e., the period that Vail Mountain is conducting downhill ski operations) falling after the commencement of the Christiania Lodge's Christmas holiday season bookings, or December 18th, whichever,is later. For purposes of this paragraph 6, construction of the Garage Project will be completed upon the Town's issuance of any temporary or permanent certificate of occupancy or any comparable alternative form of permit or approval for the Garage Project. 7. Remedies; Attorneys' Fees. (a) The rights of either party hereunder may be enforced by any remedies available at law or equity, including, without limitation, the recovery of damages, and where appropriate, injunctive or other equitable relief to prevent the occurrence or continuance of any default hereunder, or to enforce the performance and observance of the terms of this Agreement. All remedies shall be cumulative with and in addition to, and not exclusive of, one another; any and all remedies may be pursued by the non-defaulting party either successively or concurrently; and the exercise of any one remedy shall not be construed as or constitute a bar to the exercise of any other remedy. All unpaid balances due either the Grantor or Grantee herein shall bear interest at the rate of twelve percent (12%) per annum. (b) In the event any legal proceeding arises out of this Agreement and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and any presiding court will be bound to make this award). Should the application of this provision in any circumstance prove to conflict with any other provision of this Agreement for the allocation of attorneys' fees, this provision shall be controlling. 8. Successors in Interest. The rights, interests and obligations of the parties under this Agreement, including the Easement, shall touch and concern and run with the land as a benefit and, burden to the ownership of the Servient Estate and Dominant Estate. Furthermore, all references herein to the "Grantor" shall be deemed to encompass and include its constituent Members, and Grantor shall be obligated to cause its Members to abide by, conform to, and refrain from violating Grantor's express obligations and duties hereunder. All references to the "Grantee" shall be deemed to encompass and include any successor in interest it may have for the development of the Garage Project, but once the Garage Project is completed (as evidenced by the Town's issuance of a temporary or permanent certificate of occupancy or comparable alternative form of permit or approval), the obligation and duties of the Grantee hereunder shall not run to any of Grantee's successors in interest in the ownership of the Dominant Estate. In any case, the purchasers of any condominium parking units within the Garage Project and their 878456 e1e010.6 xcnsx 7 1111111111111111111 11111111111111111111111111 05/26/2004 03:59P Teak J Simonton Eagle, CO 174 R 66.00 D 0.00 successors, and any related owners association, shall not have any liability for such obligations and duties. 9. Authori. Grantee hereby represents to Grantor that Grantee has taken or received all corporate action or authorization necessary for Grantee to enter into this Agreement; that Grantee's entry into this Agreement constitutes the duly authorized corporate action of Grantee; and that this Agreement is binding on Grantee. Grantor in turn represents to Grantee that Grantor has taken all actions and received all consents or authorizations from its board of directors (however denominated) and/or its Members which are requisite to Grantor's entry into this Agreement; that Grantor's entry into this Agreement constitutes the duly authorized corporate and association action of the Grantor; and that this Agreement is binding on the Grantor and its constituent Members. Grantee agrees that the Members of the Grantor are and shall be express third-party beneficiaries of those provisions hereunder that by their express terms are intended to benefit the Members. 10. Completion of Construction. Upon the completion of the construction of the Garage Project, as such completion is defined in paragraph 2 above, the Easement shall terminate, Grantee shall cease to use the Easement and all right, title and interest hereunder of the Grantee shall cease and terminate and the Grantor shall hold the Servient Estate free from the rights so abandoned, and Grantee shall be deemed to have abandoned its rights granted herein and will have no further right to. the use and enjoyment of the Tiebacks and shall be deemed to have forfeited the same. However, upon such termination of the Easement, it is understood that the Tiebacks will be abandoned in place on the Servient Estate and Grantee shall have no obligation or duty to remove the same. Upon such abandonment, Grantor, in turn and at its election and without obligation to Grantee, may leave the Tiebacks in place or otherwise manage, treat or dispose of the Tiebacks in any manner permitted by law, and Grantee will have no further obligation in connection with the Tiebacks commencing from and after such abandonment. Upon the termination of the Easement due to completion of construction or otherwise, either party, upon the request of the other, shall execute and deliver a recordable instrument confirming that such termination has occurred, and that the parties are released from any further obligations and duties hereunder. Notwithstanding any transfer of the Dominant Estate or any portion thereof, the Grantee named herein will retain 'the right and power to effectuate such confirmation of termination unless such right and power are expressly assigned of record. 11. Insurance. (a) Grantee covenants and agrees that it shall at all times during the term of this Agreement, maintain or cause to be maintained, at no expense to Grantor, with, respect to the use by or through Grantee of the Servient Estate pursuant to this Agreement, (i) commercial general liability insurance and excess liability insurance with limits of $1,000,000 per occurrence ($2,000,000 in the aggregate) and $10;000,000 respectively, which shall include a per project aggregate limit endorsement' and shall name as additional insureds Grantor, Christiania Lodge at Vail, Ltd., Chamber Corporation, and The Mad Jack Trust Dated February 14, 2002; and (ii) worker's compensation insurance with limits equal to applicable statutory limits for workers engaged in the Construction on the Servient Estate. The liability coverage under 878456 616010.6 RcF]sx $ I Page: 8 of 13 05/26/2004 03:59F Teak J Simonton Eagle, CO 174 R 66.00 D 0.00 clause (i) above will be free from the "XCU" exclusions for explosion, collapse and underground hazards, and also exclusions for soils related losses, but in any case such policy may be subject to standard exclusions for environmental matters. Such coverages under clauses (i) and (ii) above may be maintained in whole or part by Grantee and/or by its general contractor or subcontractors, as Grantee may elect. Grantee or its general contractor for the Garage Project will provide Grantor with a certificate of insurance for the liability coverage under clause (i) above, which shall include a provision that the policy will not be cancelled except upon of least thirty (30) days' advance written notice to Grantor. Such certificate shall be provided to Grantor prior to exercise by Grantee of any rights granted hereunder. (b) Should the commercial general liability insurance, required by this Agreement to be maintained by or through Grantee be cancelled or not renewed, then upon such failure of coverage, Grantor by notice to Grantee may require that all work within the Servient Estate pursuant to the Easement be promptly suspended until such time, if ever, as the requisite liability coverage is reinstated in accordance with the foregoing provisions. Grantor will give Grantee notice of any pending lapse of coverage upon becoming aware of the same. 12. Severabilitv. If any term, covenant, condition or provision of this Agreement shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, it being the intent of the parties that this Agreement and each provision hereof shall be enforceable and enforced to the fullest extent permitted by law. 13. Entire Agreement. This Agreement and any 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. All Exhibits referred to in this Agreement as attached hereto are hereby deemed incorporated into this Agreement and made a part hereof. 14. Rules of Construction. The headings which appear in this Agreement are for purposes of convenience and reference and are not in any sense to be construed as modifying the paragraphs in which they appear. 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. 15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 16. Modification and Waiver. No purported modification of the terms of this Agreement, or purported waiver by any party of any of its rights and interests hereunder, shall be binding unless and except to the extent specifically set forth in a written instrument executed by the party against whom enforcement of the purported modification or waiver is sought. 17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument and agreement. 878456 Page: 9 of 13 616010.6 RMSH 9 05/26/2004 03:59P Teak J Simonton Eagle, CO 174 66.00 D 0.00 18. 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 Grantee: Vail Associates Holdings, Ltd. 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: Kursten Canada, Esq. Fax.No.: (970) 845-2555 Phone: (970) 845-2546 If to Grantor: Christiania at Vail Condominium Association, Inc. c/o Christiania Lodge at Vail, Ltd. 356 Hanson Ranch Road Vail, Colorado 81657 Attention: Paul R. Johnston Fax: (970) 476-0470 Phone; (970) 476-5641 878456 I Page: 10 of 13 05/26/2004 03:59P Teak i Simonton Eagle, CO 174 R 66.00 D 0.00 616010.6 RUISH 10 With a simultaneous copy to: Murray Franke Greenhouse List & Lippitt LLP Granite Building, Second Floor 1228 15th Street Denver, Colorado 80202 Attention: Thomas M. List, Esq. Fax: (303) 623-0960 Phone: (303) 623-0025 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. 19. Reimbursement of Expenses. Grantee shall reimburse Grantor for reasonable attorneys' fees that Grantor incurs for negotiating and entering into this Agreement, and the reasonable fees incurred by Grantor's Representative in performing its functions as set forth under the terms of this Agreement, which functions shall be limited to a reasonable scope and extent. The Grantor will furnish invoices and other documentation reasonably substantiating those fees, to be accounted for based on hourly billings and rates. Reimbursement will be owing within 30 days after Grantor gives notice of demand from time to time, accompanied by the foregoing supporting documentation. 20. Representations. Grantor makes no representation as to the condition of the Servient Estate, the condition of its soils, the location of its utilities or any other matter.. 21. Recording. This Agreement shall be recorded in the real property records of Eagle County, State of Colorado, at the expense of Grantee. [Balance of page intentionally left blank] 878456 Page: 1i of 13 05/26/2004 03:59P Teak J Simonton Eagle, CO 174 R 65.00 D 0.00 616010.6 RCMSH 11 05/17/2004 21:58 303-623-0960 MFGLL PAGE 13 IN ZVITNESS WHEREOF, Grantor and. Grantee have made this Construction C. Easement Agreement as gf the day, month and year first above written. GRANTOR: CFJRISTIAN[A AT VAIL CONDOMINIUM ASSOCIATION, INC.,•a Colorado nonprofit corporation EGG Y' Nam e: cc , c o ct J-5i ~ Title: STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing 1 strunie t was acknowledged bef e this day of 2004, by 4Z ~A as e6 id e h ` of . ris ania At Vail Condominium Association; Inc., a Colorado nonprofit corporation. Witness my hand and official seal. My commission expires: MARY ANN GRAHAM-BEST, Notary Public y Commission Expires c o er 26, 2006 75 S. Frontage Road Vail, CO 81657 I~ot lie (Signature blocks continue on nett page) 878455 I Page: 12 of 13 Teak J Simonton Easle, Co 174 R 66.00 5/26020000 3:59P 616OLM; RUI314 12 GRANTEE: VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation STATE OF COLORADO B) N, Ti ss: - ) COUNTY OF The foregoing' instrument was acknowledged before, me this day of .a C Ems-' 2004, by ) A4vti~ Q . ~.0►..7 as of Vail Agociates Holdings, Ltd., a Colorado corporation. Witness my hand and official seal. My commission expires: My Commission Expires 911712005 878456 Page: 13 of 13 05/26/2004 03:59P Teak J Simonton Eagle, CO 174 R 66.00 D 0.00 616010.6 RUISH 13 FYI CONSTRUCTION EASEMENT AGREEMENT ,THIS CONSTRUCTION EASEMENT AGREEMENT ("Agreement") is made as of the y day of May, 2004, by and ~ between VILLA VALHALLA ASSOCIATION,, A/K/A VILLA VALHALLA ASSOCIATION, INC., a Colorado nonprofit corporation ("Grantor"), and VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation ("Grantee"). - RECITALS: A. Grantor is the governing owners association for Villa Valhalla Condominiums (the "Condominiums") located in the Town of Vail, State of Colorado (the "Town"), which Condominiums were established by that certain condominium map recorded in the real property records for Eagle County, Colorado (the "Records"), on December 27, 1967, at Book 211, Page 809 (as amended by minor subdivision plat recorded September 29, 1993, at Book 620, Page 782), and the related condominium declaration recorded December 27, 1967, at Book 211, Page 808. The real property which is included within that condominium map and condominium declaration is sometimes referred to hereinafter as the "Servient Estate." Grantor is making. this Agreement on its own behalf and on behalf of its constituent members (the "Members"), collectively and singularly, which Members are the owners of units within the Condominiums. B. Grantee is the owner of certain real property contiguous to the Servient Estate that is legally described as Lot P-3, according to the subdivision plat entitled "Lot P-3, Vail Village Fifth Filing," recorded March 17, 2004, at Reception No. 871030, County of Eagle, State of Colorado, together with an adjacent subterranean portion of Hanson Ranch Road right- of-way that has been vacated by the Town by its Ordinance No. 11, Series of 2004 (together the "Dominant Estate'). Grantee intends to commence the development and construction on the Dominant Estate of a subterranean parking garage facility complemented by ancillary surface improvements, together with a surface paved parking area with attendant landscaping, and also an open space/park area (collectively the "Garage Project"). C. In order to commence construction of the Garage Project, Grantee has requested that the Grantor grant an easement to install, operate, test and inspect, within subterranean portions of the Servient Estate, construction tieback anchors, soldier bean-is and related materials necessary to provide interim support for and to stabilize construction, excavation and installation for the Garage Project and prevent subsidence of soils during the course of construction (the "Tiebacks"). Grantor has determined to grant the requested easement in accordance with and subject to all the terms and provisions of this Agreement. NOW, THEREFORE, in consideration of the above premises, and the mutual covenants and agreements set forth herein, Grantor and Grantee covenant and agree as follows: 1. Grant of Construction Easement. The Grantor, on its own behalf and on behalf of its Members, hereby grants and conveys to Grantee, as an appurtenance for the benefit .878457 Page: i of 14 Teak J Simonton Eagle, CO 174 R 71.00 5/26D20 0003:59P 612306.4 RCFISH U_.).-7y-7 ca~ )3- of the Dominant Estate and the Garage Project to be developed thereon, an irrevocable, temporary, non-exclusive construction easement upon, over and beneath a portion of the Servient Estate to accommodate the construction, installation, operation, testing, inspection, maintenance, use and enjoyment of the Tiebacks in conjunction with and throughout the course of the construction, installation and development of the Garage Project (the "Easement"). The Easement shall cover an area within and under the surface of the Servient Estate as reasonably. necessary or appropriate for Construction (hereinafter defined) in accordance with the Plans (hereinafter defined), and otherwise for the use and enjoyment of the Easement as contemplated herein and the performance of Grantee's obligations and duties hereunder. This Easement shall become effective as of the date of the mutual execution and delivery of this Agreement, and shall remain in full force and effect until the completion of the construction of the Garage Project, which for this purpose shall be deemed to occur (i) only at such time as Grantee secures a permanent, unconditional certificate of occupancy issued by the Town, or any comparable alternative form of permit or approval that the Town may issue for this type of project under its prevailing practices, which authorizes the ongoing occupancy, use and enjoyment of the Garage Project, or (ii) if and when Grantee voluntarily relinquishes its rights under the Easement by a recorded. written instrument to that effect executed by Grantee. The Easement may be used, enjoyed and occupied solely by Grantee and its agents, employees and contractors, and any other agents, contractors and invitees acting by, through or under any of them (collectively with the Grantee, the "Permittees' 2. Construction Process; Mechanic's Liens. (a) Grantee covenants to the Grantor that the Tiebacks will be constructed and installed in material conformity with the plans and specifications therefor (collectively the "Plans") identified as "Construction Tieback Exhibit" for "Vail's Front Door - Vail Park and Garage at Lots P-3 & J", prepared by Peak Land Consultants, Inc., Job No. 1167, and dated as of May 2, 2004, and the "Earth Retention System" prepared by Schnable Foundation Company, Job No. 07=3447, Sheets 1 to 3,. inclusive, dated February 9, 2004, and last revised April 26, 2004 (and including plan, soldier beam schedule, elevators, sections and borings, and general notes). The Plans may be further modified as required by the Town or as determined by Grantee (so long as any such modifications do not create any material conflict with the other provisions set forth below). Grantee covenants that the construction and installation of the Tiebacks (the "Construction") will be undertaken in a good and workmanlike manner, in conformity with all applicable foundation or building permit and legal construction requirements of the Town (which foundation or building permit, as applicable, must be issued prior to commencement of Construction), and pursuant to customary drilling construction methods for purposes of minimizing noise and vibration; that the Construction will not require entry onto or penetrate or physically damage the surface of the Servient Estate, will not entail the transport by crane by Grantee's contractors of any construction materials or weighted loads directly over any occupied portions of the Servient Estate, and will not penetrate or physically damage any building improvements presently located on the Servient Estate; that the Construction will not impair any subjacent or lateral support for the surface of or any improvements or appurtenances on the Servient Estate, 878457 Page: 2 of 14 Teak J Simonton Eagle, CO i 05/26/2004 03:59P 2174 R 71.00 D 0.00 612306.4 RCFISH as such support is necessary for the use and enjoyment thereof; and that the Construction will not break, cut or impair the normal function of any utility. lines or facilities located on and, serving the Servient Estate. Notwithstanding the foregoing, Grantor agrees that Grantee will be afforded access to individual condominium units and other improvements within the Servient Estate as reasonably necessary. or appropriate in furtherance *of the foregoing and to otherwise effectuate the Easement rights and the other provisions hereof. (b) Pursuant to the Construction, Grantee shall not perform physical work or construct or place any improvement, structure or building material, or any object on the surface of the Servient Estate except as required herein or with the Grantor's written consent, and any of the foregoing, unless so required or consented to, may be removed by Grantor without liability for damage arising therefrom and with Grantee to bear all cost and expense of such removal. If any debris, mud and other unsightly conditions upon the surface of the Servient Estate, or damage thereto result from Grantee's actions pursuant to the construction of the Garage Project, the removal and/or remedying of the same will be commenced by Grantee within 24 hours thereafter, and Grantee, at its sole cost and expense, shall repair and restore any damage to the surface of the Servient Estate, such that it is returned to substantially the condition it was in immediately prior to such disturbance. Should Grantee breach this obligation, then the provisions of paragraph 5 below will apply to such breach. Notwithstanding the foregoing provisions to the contrary, Grantee will only be required to remedy in the ordinary course of the work any such damage or conditions that are inherent in the nature of any work on the Servient Estate consented to by Grantor or required hereunder. In any event the foregoing shall not be construed to apply to the exercise of other pre-existing easement rights. (c) ' Grantee will not cause or permit any mechanic's lien claims to be made against any ownership interests in the Servient Estate that arise from the Construction. If any such mechanic's lien claim is recorded against any such property interests, then Grantee shall, within thirty (30) days after the recording of such lien claim, obtain the release of.the affected property interests in the Servient Estate from such lien claim, whether by discharge, bonding or otherwise, or alternatively furnish the Grantor with other security for the applicable lien claim in amounts commensurate to those under the legal bonding requirements and otherwise reasonably satisfactory to Grantor (and so long as this discharge or alternative security requirement is satisfied, the Grantee may contest any mechanic's lien claim in good faith). If Grantee shall fail to furnish the requisite release or security within the aforesaid 30-day period, the Grantor may, at its option; secure the release of the lien claim by any means available, including bonding, settlement or resort to any security furnished by Grantee, in which case Grantee shall, within ten (10) days after notice of demand, reimburse Grantor for the latter's costs and expenses incurred in securing the lien release, including reasonable attorneys' fees (except to the extent recouped from any such security). (d) Allen G. Thurman, a consulting engineer engaged by Grantor in connection with this Agreement ("Grantor's Representative"), shall be furnished the 878457 Page: 3 of 14 612306.4 RUISH 3 05/26/2004 03:59P Teak J Simonton Easle, CO 174 R 71.00 D 0.00 Plans. Should it be necessary that Grantor's Representative or other contractors or consultants engaged by or through Grantor's Representative have access to the Dominant Estate during the construction of the Garage Project for undertaking inspections to assure compliance with the terms and provisions hereof, reasonable access shall be provided, so long as such access will not materially interfere with the construction of the Garage Project or pose a material risk of bodily injury or property damage; Grantor must obtain Grantee's prior authorization before entering the Garage Project or construction site on the Dominant Estate for purposes of the foregoing, which consent will not be unreasonably withheld. Grantor's Representative will be provided all changes to the Plans, if any. (e) Due to the age of the Servient Estate and the nature of the activities contemplated by this Agreement, Grantor desires to monitor any potential movement of and resulting damage to the Servient Estate related to the construction of the Garage Project, as follows: (i) For the purpose of monitoring any such movement, Grantee, consistent with prior consultations with Grantor's Representative, (A) will survey the interior and exterior of the Servient Estate, with such survey to include "spot crack mapping," in order to establish an informational base of the existing condition of the buildings and improvements thereon, which survey will be completed before the commencement of any excavation activities within the Servient Estate, and (B) will install a maximum of five (5) monument measuring devices (the "Monument Devices") affixed along the length of the Servient Estate exterior building wall that lies adjacent to the common lot line between the Dominant Estate and Servient Estate. The Monument Devices shall be installed and maintained in good condition at Grantee's sole expense, and shall be installed prior to the commencement of any excavation activities within the Servient Estate. Grantor shall cause Grantor's Representative to cooperate diligently with Grantee in furtherance of expediting these functions. (ii) The Monument Devices shall be monitored by Peak Land Consultants, Inc., or another qualified surveyor or engineer reasonably acceptable to Grantor's Representative ("Surveyor"), at Grantee's sole expense, as follows: (A) once a week during excavation and Tieback activities and during construction of the entire foundation of the Garage Project, until the foundation is completed; (B) one time per month after completion of the construction of the foundation and until the Garage Project is complete (as evidenced by the Town's issuance therefor of a temporary or permanent certificate of occupancy or comparable alternative form of permit or approval); and (C) one time each six (6) months after the Garage Project is complete for a period of one (1) year. The Surveyor shall report, either by telephone, facsimile, e-mail or personal delivery, the results of the measurements taken pursuant to this paragraph of the Agreement, to Grantor's Representative, within one day after completing each set of measurements. Grantor's Representative shall make his telephone, fax, e-mail and address information available to Grantee for this purpose. 612306.4 RUISH 878457 4 Page: 4 of 14 Teak J Simonton Eagle, CO 174 05/26/2004 03:59P R 71.00 D 0.00 (iii) In the event that any monitoring of the Monument 'Devices detects movement in the building improvements located on the Servient Estate (A) that is in excess of vertical deflections between building corners of .25 inch trigger levels, and/or horizontal deflections between building corners of .25 inch trigger levels,, and (B) that constitutes differential movement resulting in foundation damage to such building improvements (a "Material Movement"), then . Grantee shall institute all measures reasonably necessary to prevent any further foundation damage ("Supplemental Measures"), and shall discontinue the work of the Garage Project as necessary to prevent such further foundation damage until those Supplemental Measures are implemented. In that event, the Grantee will also communicate in writing to Grantor: (C) the extent of the detected differential movement causing the damage; (D) a proposed schedule to increase monitoring; and (E) detailed plans and/or changes to the construction methods for implementing the Supplemental Measures. With respect to any foundation damage, the Grantee shall also provide (F) the proposed repair to any buildings or improvements on the Servient Estate damaged as a result of such differential movement, (G) the projected timing to complete such repairs, and (H) the identity of the proposed contractor to conduct such repairs. Grantor shall approve any proposed repair and proposed contractor prior to the commencement of any such repair (with such approval not be unreasonably withheld or delayed). (f) Intrusions of the Tiebacks and the Construction under the Servient Estate shall not damage or impair the function. of Grantor's improvements, including, but not limited to, Grantor's foundation, trees, subsurface support caissons, water and C. drainage facilities and any utility service. Grantor's Representative shall have the right (subject to the limitations in paragraph 2(d) above) to inspect the Construction work to be performed and the exposed temporary shoring and foundation tieback system on the Servient Estate while. the excavation is still open. Following the occurrence of any Material Movement, the Grantor's Representative shall also have the right to take independent measurements from the Monument Devices up to two times a week during excavation adjacent to the Servient Estate and until all below-grade foundation improvements on the Dominant Estate have been completed. (g) Grantor's exercise of, or inaction with respect to, inspection and monitoring rights under paragraphs 2(d), 2(e) and 2(f) above and the provisions thereof (i) shall not prevent Grantor from recovering damages pursuant to any breach of Grantee's obligations under this Agreement, and Grantor's right to recover damages is expressly reserved; (ii) shall otherwise have no effect, on the indemnification provided pursuant to paragraph 4 of this Agreement; and (iii) shall not be construed to make Grantee subject to any liabilities or remedies in the absence of any property damage or other liability or loss suffered by the Grantor in violation of this Agreement. (h) As part and parcel of the Construction, Grantee will remove, in a .good and workmanlike manner and at its sole cost and expense, the walkway that leads from the western entry for the Servient Estate to the boundary, of the Dominant Estate. As part of that removal of the walkway, which presently is included within a snowmelt 878457 Page: 5 of 14 512305.4 RUISH Teak J Simonton Eagle, CO 174 R 71 .00 5~26DZ0 00 3:59F heating system for paved surfaces within the Servient Estate, Grantee will coordinate with Grantor to assure that the removal does not damage remaining portions of that heating system. That walkway area will be refurbished by Grantee at its sole expense with native vegetation and/or landscaping that is consistent with the surrounding environs within the Servient Estate, which refurbishment will be completed by August 31, 2004. (i) Prior to commencement of the Construction, Grantee will install temporary fencing enclosing the landscaping (including trees) on the Servient Estate that is adjacent to the Dominant Estate, as reasonably necessary as a protective measure for safeguarding the same against adverse effects from the construction process. As part of the initial survey process under paragraph 2(e) above, the parties may mutually inspect and document the condition of that landscaping. In the event that, as a result of the construction of the Garage Project, the landscaping is damaged such that it needs to be replaced, Grantee at its expense will make reasonable replacements for the damaged landscaping in a prompt and diligent manner. 3. Non-Exclusive. The Easement shall be non-exclusive, and the Grantor, on its own behalf and on behalf of its Members, expressly reserves the right, to the undisturbed use, enjoyment and occupancy of the surface of and all other portions of the Servient Estate for any and all purposes that are not inconsistent with the terms of the Easement and the rights and. interests afforded to Grantee under the terms hereof. Grantor, on its on behalf and on behalf of its Members, specifically agrees that none of them shall do or permit anything to be done which physically disturbs or impairs the function of the Tiebacks during the course of the Construction, or which otherwise violates or materially interferes with the use and enjoyment of the Easement by Grantee or the other Permittees. 4. Indemnity. Grantee, its successors and assigns, shall fully indemnify and defend Grantor and its Members, their successors and assigns, and shall hold each of them harmless from and against any claims, causes of action, suits, liabilities, damages or losses and expenses of whatever kind or nature that arise or are incurred by them as a result of any personal injury, bodily injury, sickness, disease, death or property loss or damage, including lost profits, occasioned from the undertaking of the Construction.or any negligence or willful misconduct of the Grantee and occurring in relation to the use and enjoyment of the Easement and by action or inaction of any contractor or employee, agent or servant of any contractor engaged by, through or under Grantee, or any breach of the Grantee's obligations under this Agreement. This indemnity will also cover and include costs and expenses, including reasonable attorneys' fees and consultant's fees and expenses, caused by, relating to or arising out of any matter indemnified under the foregoing provisions, together with any liens asserted against the Servient Estate as a result of work performed by or for Grantee pursuant to the rights and privileges granted Grantee by this Easement (subject to Grantee's rights under paragraph 2(c) above), if the related damage, loss, claim, expense or lien is caused in whole or in part by the act, omission, error, professional error, mistake, negligence or other fault of Grantee, its contractors or subcontractors or any employee or agent of the same. Notwithstanding any implications to the contrary in the foregoing provisions, the foregoing shall not be construed to waive or limit any requirements imposed upon the indemnified party by law to mitigate its damages, and this indemnity shall not apply to matters stemming from the negligence, willful misconduct or breach 87'8457 612306.4 RCFiSH 6 1111111111111111111111111111111111111111111111111111111 Page: 6 of 14 05/26/2004 03:59P Teak J Simonton Eagle, CO 174 R 71.00 0 0.00 of this Agreement by the Grantor and/or any Member(s). This Indemnification provision shall survive termination or expiration of this Agreement. C 5. Self Help; Reimbursement. If Grantee fails in any of its obligations hereunder to protect the Servient Estate from harm during and arising out of the construction of the Garage Project, Grantor shall have the right, after notice to Grantee and opportunity to Grantee to cure such failure by the exercise of due diligence (but not to exceed 60 days except as necessary to complete repairs), to take any action that Grantor, in good faith and after due consultation with Grantor's Representative, deems appropriate to cure such failure for purposes of protecting the Servient Estate from harm or damage during the construction of the Garage Project. Grantee shall reimburse Grantor for any out-of-pocket costs incurred by Grantor in protecting the Servient Estate pursuant to this paragraph and for any repairs or clean up of the Servient Estate related to the Grantee's failure to protect the Servient Estate from harm and damage during the Garage Project as provided above ("Self Help Expenses"). Grantee shall reimburse Grantor for Self Help Expenses within thirty (30) days of receiving notice of Self Help Expenses, as provided in paragraph 18 of this Agreement, together with reasonable documentary evidence of the costs incurred. 6. Access. In the event the construction of the Garage Project necessitates any closure of adjacent streets that precludes vehicular access to the main entrance of the building improvements on the Servient Estate for a period of longer than one hour (a "Restricted Closure"), then the following provisions shall apply: (a) Grantee shall provide Grantor with not less, than 24 hours' prior notice of the pending Restricted Closure; and (b) For the duration of any Restricted Closure, Grantee at its sole expense will make available a reasonable service for shuttling occupants of the Servient Estate to and from their vehicles, if parked at the Vail Village public parking structure or other comparable location during the pendency of any Restricted Closure, in any instance where those parties are transporting by vehicle any items that are difficult to carry on foot for a substantial distance (e.g., luggage, grocery bags). The shuttle service will provide street pick-up and drop-off points which are as close to the Servient Estate as the Restricted Closure effectively permits. However, Grantee also agrees that no Restricted Closure may occur during the portion of the Vail ski season (i.e., the period that Vail Mountain is conducting downhill ski operations) falling after the commencement of the Christiania Lodge's Christmas holiday season bookings, or December 18th, whichever is later. For purposes of this paragraph 6, construction of the Garage Project will be completed upon the Town's issuance of any temporary or permanent certificate of occupancy or any comparable alternative form of permit or approval for the Garage Project. 7. Remedies; Attorneys' Fees. (a) The rights of either party hereunder may be enforced by any remedies available at law or equity, including, without. limitation, the recovery of 878457 Pae: 7 of 14 612306.4 xUtsx 7 Teak J Simonton Easle, CO 17 i R 71. 00 5/2672004 03:59P 0 0,00 damages, and where appropriate, injunctive or other equitable relief to prevent the occurrence or continuance of any default hereunder, or to enforce the performance and observance of the terms of this Agreement. All remedies shall be cumulative with and in addition to, and not exclusive of, one another; any and all remedies may be pursued by the non-defaulting party either successively or concurrently; and the exercise of any one remedy shall not be construed as or constitute a bar to the exercise of any other remedy. All unpaid balances due either the Grantor or Grantee herein shall bear interest at the rate of twelve percent (12%) per annum. (b) In the event any legal proceeding arises out of this Agreement and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and any presiding court will be bound to make this award). Should the application of this provision in any circumstance prove to conflict with any other provision of this Agreement for the allocation of attorneys' fees, this provision shall be controlling. 8. Successors in Interest. The rights, interests and obligations of the parties under this Agreement, including the Easement, shall touch and concern and run with the land as a benefit and burden to the ownership of the Servient Estate and Dominant Estate. Furthermore, all references herein to the "Grantor" shall be deemed to encompass and include its constituent Members, and Grantor shall be obligated to cause its Members to abide by, conform to, and refrain from violating Grantor's express obligations and duties hereunder. All references to the "Grantee" shall be deemed to encompass and include any successor in interest it may have for the development of the Garage Project, but once the Garage Project is completed (as evidenced by the Town's issuance of a temporary or permanent certificate of occupancy or'comparable alternative form of permit or approval), the obligation and duties of the Grantee hereunder shall not run to any of Grantee's successors in interest in the ownership- of the Dominant Estate. In any case, the purchasers of any condominium parking units within the Garage Project and their successors, and any related owners association, shall not have any liability for such obligations and duties. 9. Authority. Grantee hereby represents to Grantor that Grantee has taken or received all corporate action or authorization necessary for Grantee to enter into this Agreement; that Grantee's entry into this Agreement constitutes the duly authorized corporate action of Grantee; and that this Agreement is binding on Grantee. Grantor in turn represents to Grantee that Grantor has taken all actions and received all consents or authorizations from its board of directors (however denominated) and/or its Members which are requisite to Grantor's entry into this Agreement; that Grantor's entry into this Agreement constitutes the duly authorized corporate and association action of the Grantor; and that this Agreement is binding on the Grantor and its constituent Members. Grantee agrees that the Members of the Grantor are and shall be express third-party beneficiaries of those provisions hereunder that by their express terms are intended to benefit the Members. 10. Completion of Construction. Upon the completion of the construction of the Garage Project, as such completion is defined in paragraph 2 above, the Easement shall 87845' Page: 8 of 14 612306.4 RCFISH 8 1111111111111111111111111111111111111111111111111111111 05/28/2004 03:59P Teak J Simonton Eagle, CO 174 R 71.00 D 0.00 terminate, Grantee shall cease to use,the Easement and all right, title and interest hereunder of the Grantee shall cease and terminate and the Grantor shall hold the Servient Estate free from the rights so abandoned, and Grantee shall be deemed to have abandoned its rights granted herein and will have no fiirther right to the use and enjoyment of the Tiebacks and shall be deemed to have forfeited the same. However, upon such termination of the Easement, it is understood that the Tiebacks will be abandoned in place on the Servient Estate and Grantee shall have no obligation or duty to remove the same. Upon such abandonment, Grantor, in turn and at its election and without obligation to Grantee, may leave the Tiebacks in place or otherwise manage, treat or dispose of the Tiebacks in any manner permitted by law, and Grantee will have no further obligation in connection with the Tiebacks commencing from and after such abandonment. Upon the termination of the Easement due to completion of construction or otherwise, either party, upon the request of the other, shall execute and deliver a recordable instrument confirming that such termination has occurred, and that the parties are released from any further obligations and duties hereunder. Notwithstanding any transfer of the Dominant Estate or any portion thereof, the Grantee named herein will retain the right and power to effectuate such confirmation of termination unless such right and power are expressly assigned of record. 11. Insurance. (a) Grantee covenants and agrees that it shall at all times during the tern of this Agreement, maintain or cause to be maintained, at no expense to Grantor, with respect to the use by or through Grantee of the Servient Estate pursuant to this .Agreement, (i) commercial general liability insurance and excess liability insurance with limits of $1,000,000 per occurrence ($2,000,000 in the aggregate) and $10,000,000 respectively, which shall name Grantor as an additional insured and shall include a per project aggregate limit endorsement; and (ii) worker's compensation insurance with limits equal to applicable statutory limits for workers engaged in the Construction on the Servient Estate. The liability coverage under clause (i) above will be free from the "XCU" exclusions for explosion, collapse and underground hazards, and also exclusions for soils related losses, but in any case such policy may be subject to standard exclusions for environmental matters. Such coverages under clauses (i) and (ii) above may be maintained in whole or part by Grantee and/or by its general contractor or subcontractors, as Grantee may elect. Grantee or its general contractor for the Garage Project will provide Grantor with a certificate of insurance for the liability coverage under clause (i) above, which shall include a provision that the policy will not be cancelled except upon at least thirty (30) days' advance written notice to Grantor. Such certificate shall be provided to Grantor prior to exercise by Grantee of any rights granted hereunder. (b) Should the commercial general liability insurance required by this, Agreement to be maintained by or through 'Grantee be cancelled or not renewed, then upon such failure of coverage, Grantor by notice to Grantee may require that all work within the Servient Estate pursuant to the Easement be promptly suspended until such time, if ever, as the requisite liability coverage is reinstated in accordance with the foregoing provisions. Grantor will give Grantee notice of any pending lapse of coverage upon becoming aware of the same. 878457 Page: 9 of 14 512305.4 RCFISa 9 Teak J Simonton Eagle, CO 174 R 71. 00 5/26/ 0200.00 03:59F 12. Severability. If any term, covenant, condition or provision of this Agreement shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, it being the intent of the parties that this Agreement and each provision hereof shall be enforceable and enforced to the fullest extent permitted by law. 13. Entire Agreement. This Agreement and any 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. All Exhibits referred to in this Agreement as attached hereto are hereby deemed incorporated into this Agreement and made a part hereof. 14. Rules of Construction. The headings which appear in this Agreement are for purposes of convenience and reference and are not in any sense to be construed as modifying the paragraphs in which they appear. 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. 15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 16. Modification and Waiver. No purported modification of the terms of this Agreement, or purported waiver by any party of any of its rights and interests hereunder, shall be binding unless and except to the extent specifically set forth in a written instrument executed by the party against whom enforcement of the purported modification or waiver is sought. 17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument and agreement. 18. Notices; Business DMs. 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 (1), (ii) or (iii) above shall be delivered or mailed, as the case may be, to the appropriate address set forth below. 878457 Page: 10 of 14 I 05/25/200403:59P Teak J Simonton Eagle, CO 174 R 71.00 D 0.00 612306.4 RCFISH 10 If to Grantee: Vail Associates Holdings, Ltd. 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: Kursten Canada, Es q. Fax No.: (970) 845-2555 Phone: (970) 845-2546 If to Grantor: c/o Christiania Lodge at Vail, Ltd. 356 Hanson Ranch Road Vail, CO 81657 Attention: David Golden or President Fax No.: (970) 476-0470 Phone: (970) 476-5641. With a simultaneous copy to: Murray'Franke Greenhouse List & Lippitt LLP Granite Building, Second Floor 1228 15th Street Denver, Colorado 80202 Attention: Thomas M. List, Esq. Fax: (303) 623-0960 Phone: (303) 623-0025 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 878457 C.. Page: it of 14 05/26/2004 03:59P Teak Simonton Eagle, CO 174 R 71.00 D 0.00 612306.4 RCFtSH 1 i 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. 19. Reimbursement of Expenses. Grantee shall reimburse Grantor for reasonable attorneys' fees that Grantor incurs for negotiating and entering into this Agreement, and the reasonable fees incurred by Grantor's Representative in performing its functions as set forth under the terms of this Agreement, which functions shall be limited to a reasonable scope and extent. The Grantor will furnish invoices and other documentation reasonably substantiating those fees, to be accounted for based on hourly billings and rates. Reimbursement will be owing within 30 days after Grantor gives notice of demand fiom time to time, accompanied by the foregoing supporting documentation. 20. Representations. Grantor makes no representation as to the condition of the Servient Estate, the condition of its soils, the location of its utilities or any other matter. 21. Recording. This Agreement shall be recorded in the real property records of Eagle County, State of Colorado, at the expense of Grantee. [Balance of page intentionally left blank] 87$457 Page: 12 of 14 Teak J Simonton Eagle, CO 174 R 71.00 5/26D20.00 3.59P 612306.4 RUISH 12 IN WITNESS WHEREOF, Grantor and Grantee have made this Construction Easement Agreement as of the day, month and year first above written. GRANTOR: VILLA VALHALLA ASSOCIATION, A/K/A VILLA VALHALLA ASSOCIATION, INC., a Colorado nonprofit corporation By: /X Name: V S . Title: 945 c. e STATE OF eeLnel~fl (4 ctrq J a ) b b ) COUNTY OF CV ss: ) The foregoing instrument was acknowledged be re me this 1$11 day of ►~+u'~ , 2004, by ZAW Lk S• (-6 Ic.IQ 0 as tS Ic(QA- t of Villa Valhalla Association, a/k/a Villa Valhalla Association, Inc., a Colorado nonprofit corporation. Witness my hand and official seal. My commission expires: Notary Public, Cobb County, Georgi0a4 {rvt~~~~eay.;,, y Go, 1111 libbion s SePt 21 CJ" Notary Public 1: [Signature blocks continue on next page] Page: 13 o 14 11111 Hilill 1111111111111[ 11111111, 878457 Teak J Simonton Eagle, CO 174 R 111111111111171.00 5//26/2004f03:59P ~ D 0.00 612306.4 RCFISH 13 GRANTEE:- STATE OF COLORADO ) ss: COUNTY OF The foregoing instrument was kcknowledged befo me this day of ~9 a S1A 2004, by ~~/aJrrisLO as NL -7 of Vail Asso ates Holdings, Ltd., a Colorado corporate n. hand and official seal. N9~ •.y~' G ~CA00 Op My Commission 41res 911712ooS '..'.;?O ~J .C`~~~©T a R~-' sU ,p 0 i, C. 0? My commission Expires 911712005 e~}n n expires: 878457 Page: 14 of 14 05/26/2004 03:59P Teak J Simonton Eagle, Co 174 R 71.00 D 0.00 612306.4 RUISH 14 VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation C~