EXHIBIT 10.45

 

Three Part Final Agmt.

 

AGREEMENT

 

THIS AGREEMENT drafted in Three Parts is made this, 24th day of March 2011 by and between Mount Snow Ltd. organized and existing under the laws of the State of Vermont and located at

 

39 Mount Snow Road
 West Dover, VT 05356

(Purchaser)

and

Leitner-Poma of America (L-POA)

a corporation organized and existing under the laws of the State of Colorado, located at

2746 Seeber Drive, Building A
 Grand Junction, CO 81506
 Phone (970) 241-4442

 

Both individually referred to as “Party” as well as collectively also referred to as “Parties.”

 

RECITALS FOR PART ONE OF AGREEMENT

 

	
A.
    	
Mount Snow Ltd. is the operator of Mount Snow Resort and desires to purchase   certain equipment and services from L-POA to install a 6-place LPA Detachable Lift with one hundred and two   Blue Bubbles,
    
	
 
    	
 
    
	
B.
    	
L-POA   has longstanding experience in the design, manufacture, and installation of   such equipment and desires to supply to the Purchaser certain equipment and   related services.
    


 

THEREFORE, the Parties agree as follows:

 

	
1.
    	
DEFINITIONS
    
	
 
    	
 
    	
 
    
	
 
    	
1.1.
    	
For   the purpose of this Agreement the following terms will have the meaning   assigned to them below:
    
	
 
    	
 
    	
 
    
	
 
    	
1.2.
    	
“Agreement” will mean this written   Agreement drafted in Three Parts and the attached Exhibits. The Agreement   includes the following Exhibits:
    


 











 

	
 
    	
 
    	
Exhibit A   — Lift #17 — Performance specifications
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit B   — Lift #17 — List of equipment supplied by L-POA
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit C   — L-POA support services and responsibilities
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit D   — Purchaser services and responsibilities
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit E   — Payment Schedule
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit F   — Equipment Supplied for Yankee Clipper
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit G   — Certificate of Substantial Completion
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit H   — Punch List
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit I   — Milestones
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit J   — Enclosure plans
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit K   — Price calculation
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exhibit L   — Warranty
    
	
 
    	
 
    	
 
    
	
 
    	
1.3.
    	
“Borrowed Worker” will mean an employee of   Purchaser assisting L-POA.
    
	
 
    	
 
    	
 
    
	
 
    	
1.4.
    	
“Completion Date” will mean the date   Purchaser accepts the Lift as evidenced by (a) the execution of the   Certificate of Substantial Completion described in Paragraph 5.3 or   (b) pursuant to Paragraph 5.4.
    
	
 
    	
 
    	
 
    
	
 
    	
1.5.
    	
“Delivery”, unless otherwise   specified, will be freight on board to the Site.
    
	
 
    	
 
    	
 
    
	
 
    	
1.6.
    	
“Equipment” will mean parts,   machinery, structure, steel, drives, controls, and other parts and   appurtenances as set forth in Exhibit B to be supplied by L-POA for the   Lift described in Exhibit A.
    
	
 
    	
 
    	
 
    
	
 
    	
1.7.
    	
“Lift” will mean the complete   aerial ropeway system comprised of a one hundred and two 6 place LPA bubble   chair manufactured by L-POA, as described in Exhibit A of this   Agreement, together with all the parts and appurtenances thereto and   including the Equipment, as described in Exhibit B.
    
	
 
    	
 
    	
 
    
	
 
    	
1.8.
    	
“Services” will mean those services   provided by L-POA incidental to the engineering, designing, installation and   erection of the Lift, including training and support, as described in   Exhibit C.
    


 

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1.9.
    	
“Site “ will mean the location at   which the Lift is to be erected at the Mount Snow Resort, including the   necessary service, access and storage areas required for supply and erection,   as described in Exhibit D.
    
	
 
    	
 
    	
 
    
	
 
    	
1.10.
    	
“Subcontractor” will mean any person or   entity contracting with L-POA to furnish any of the Work.
    
	
 
    	
 
    	
 
    
	
 
    	
1.11.
    	
“Work” will mean the collective   design, engineering, manufacture, supply, installation and erection of the   Lift as required by this Agreement and includes all labor including   Purchaser’s borrowed employees, supplies, materials, transportation necessary   to design, engineer, manufacture, supply, install arid erect the Lift as   provided in this Agreement.
    
	
 
    	
 
    	
 
    
	
2.
    	
DUTIES AND OBLIGATIONS OF L-POA
    
	
 
    	
 
    	
 
    
	
 
    	
2.1.
    	
L-POA   will design and manufacture the Lift, and furnish layout and all necessary   engineering and specifications of Equipment as set forth in Exhibit B   (for the lift described in Exhibit A); and to deliver the Equipment and   Services at its cost and risk to the appropriate staging area at the Site;   and to install, service, and start up the Lift, as described in   Exhibit C.
    
	
 
    	
 
    	
 
    
	
 
    	
2.2.
    	
L-POA   will manufacture the Lift in a good and workmanlike manner using new and good   quality material, free from defects, and in conformance with this Agreement,   except when specified otherwise in this Agreement.
    
	
 
    	
 
    	
 
    
	
 
    	
2.3.
    	
L-POA   warrants that the Work will conform to the American National Standards   Institute Safety Code B77 for Aerial Passenger Tramways (“ANSI B77”), and the applicable   regulations of the Vermont Tramway Board and of the United States Forest   Service.
    
	
 
    	
 
    	
 
    
	
3.
    	
DUTIES AND OBLIGATIONS OF PURCHASER
    
	
 
    	
 
    	
 
    
	
 
    	
3.1.
    	
Purchaser   shall pay L-POA for L-POA’s performance of the Agreement the Contract Price   of Seven Million, Three Hundred Twenty Three Thousand, Eight Hundred Thirty   Dollars ($7,323,830) in U.S. dollars, subject to additions and deductions as   provided in the Agreement. Purchaser will make payments under this Agreement   according to the
    


 

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schedule   contained in Exhibit E (“Payment Schedule”). The calculation for the   price of the Work is shown on the attached Exhibit K.
    
	
 
    	
 
    	
 
    
	
 
    	
3.2.
    	
Purchaser   will cooperate fully with L-POA in the design, engineering, construction,   erection and installation of the Lift.
    
	
 
    	
 
    	
 
    
	
 
    	
3.3.
    	
Purchaser   will provide the services set forth in Exhibit D on or before the   applicable dates set forth in Exhibit D, and will pay for all related   costs.
    
	
 
    	
 
    	
 
    
	
 
    	
3.4.
    	
The   Purchaser will not remove or obliterate any plates or sign which may be   attached to the Lift or any part of the Lift containing the name, logo or   address of L-POA or any of its affiliates, any trade name or trade mark of   L-POA or any of its affiliates, or any reference to patents or patent   applications applicable to the Lift.
    
	
 
    	
 
    	
 
    
	
4.
    	
TERMS OF PAYMENT
    
	
 
    	
 
    	
 
    
	
 
    	
4.1.
    	
L-POA   will submit itemized invoices upon its accomplishment of each payment event   as outlined in Exhibit E to Purchaser’s accounting department care of   Deena Hicken and a duplicate invoice to Dave Moulton (or his designee). Upon   written approval by Mr. Moulton Purchaser’s accounting department will   issue the scheduled payment. Payment shall become due and owing upon approval   by Mr. Moulton. For each payment event, and provided L-POA has   accomplished the task outlined in that payment event, and the task is   approved by the Purchaser, the Purchaser shall not be entitled to withhold   payment for any reason. If Purchaser fails to make any payment to L-POA   within thirty (30) days of the invoice date, L-POA will have the right, in   addition to other available remedies, to immediately cease further   performance hereunder until such payment is made in full, together with   interest at a rate of 1.5% per month on past due balances. If L-POA incurs   any additional Work costs as a result of ceasing its performance, including   but not limited to, redeployment, travel and lodging expenses, Purchaser will   reimburse L-POA for its actual additional Work costs within thirty (30) days   following receipt of L-POA’s invoice providing reasonable detail regarding   such additional Work costs.
    
	
 
    	
 
    	
 
    
	
 
    	
4.2.
    	
The   parties agree that the Purchase Price will be adjusted to reflect L-POA’s   actual increased costs incurred in the event that subsurface rock or other   unknown subsurface physical conditions are encountered during the   installation of the Lift, which are at
    


 

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variance   with the conditions specified in Exhibit D to this Agreement to wit the   subsurface soil pressure is lower than 4,000 PSF, or which are different from   those ordinarily encountered and generally recognized as inherent in work of   the character provided for in this Agreement. Upon finding that such   conditions are at variance with the specified conditions of Exhibit D   L-POA shall immediately notify the Purchaser before conditions are disturbed.   The Purchaser shall then have an opportunity to investigate the conditions.   Such adjustments in the Purchase Price will be by a Change Order, as provided   in Paragraph 15.
    
	
 
    	
 
    	
 
    
	
 
    	
4.3.
    	
Purchaser   agrees that it will not operate the Lift for the public if any required   payments are delinquent. In the event the Purchaser operates the Lift to the   public while a payment is delinquent and without L-POA written consent, L-POA   shall have the right to enter upon the site and render the Lift inoperable   until such time as the delinquent amounts are paid.
    
	
 
    	
 
    	
 
    
	
 
    	
4.4.
    	
The   Contract Price excludes sales and use taxes. Purchaser shall pay all   applicable sales and use taxes as determined by Purchaser’s accounting   department or governing authority.
    
	
 
    	
 
    	
 
    
	
5.
    	
CONSTRUCTION SCHEDULE AND COMPLETION
    
	
 
    	
 
    	
 
    
	
 
    	
5.1.
    	
L-POA   shall complete the Work not later than November 9,2011 (Scheduled   Completion Date), subject to adjustments as provided in the Agreement, and   subject to Purchaser performing its obligations in accordance with the Agreement.   In the event L-POA ceases performance in accordance with the Agreement, the   Scheduled Completion Date will be extended for a period of time equal to the   time that performance ceases plus a reasonable time for redeployment. The   Scheduled Completion Date may also be extended in the event of Force Majeure   as provided in paragraph 20, below. However, absent events outlined in   paragraph 20, or delays related exclusively to the Purchaser, Time is Of the Essence.
    
	
 
    	
 
    	
 
    
	
 
    	
5.2.
    	
Purchaser   agrees that it will not interfere with or obstruct L-POA in the fulfillment   of its obligations under this Agreement or any Subcontractor in the   provisions of services or materials relating to the Work.
    


 

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5.3.
    	
Except   as provided in Paragraph 5.4, Completion occurs when the Certificate of   Substantial Completion, in the form appearing in Exhibit G, has been   satisfied and executed by both Purchaser and L-POA.
    
	
 
    	
 
    	
 
    
	
 
    	
5.4.
    	
Purchaser   will be deemed to have accepted the Work and the Lift deemed to be completed,   if Purchaser operates the Lift for use by its patrons prior to the execution   of the Certificate of Substantial Completion.
    
	
 
    	
 
    	
 
    
	
 
    	
5.5.
    	
In   the event that a delay in the Completion Date is caused by Purchaser, the   unpaid portion of the Contract Price will be increased by 0.5% per month
    
	
 
    	
 
    	
 
    
	
6.
    	
PUNCH LIST
    
	
 
    	
 
    	
 
    
	
 
    	
6.1.
    	
The   Certificate of Substantial Completion may exclude minor items, not involving   the safety, operability or fitness for licensure of the Lift, which will be   completed or corrected after the Completion Date, in which case, within five   (5) days of the delivery of the Certificate of Substantial Completion,   L-POA and the Purchaser will jointly agree upon a Punch List reflecting all   such items to be completed or corrected and including an estimate of the cost   to complete each such item (the “Punch List”) in the form attached at   Exhibit H. If the parties cannot in good faith jointly agree to the   Punch List, either party may submit such dispute to binding arbitration, as   provided in this Agreement. However, the existence of any such dispute does   not delay or reduce Purchaser’s obligation to make payments in accordance   with the Agreement.
    
	
 
    	
 
    	
 
    
	
 
    	
6.2.
    	
The   Purchaser shall be entitled to withhold from the last payment an amount equal   to 150% of the reasonable value of all such Punch List items. Each amount so   deducted and withheld shall become due and payable upon completion of each   item on the Punch List. The total amount withheld will not exceed in any case   more than 3% of the Contract Price. When an item on the Punch List has been   rectified; L-POA will invoice for that respective item and the Purchaser   shall pay the invoice within thirty (30) days of invoice date.
    


 

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7.
    	
TITLE
    
	
 
    	
 
    	
 
    
	
 
    	
7.1.
    	
Title   to the Lift will pass to Purchaser upon the execution of the Certificate of   Substantial Completion or deemed completion of the Lift under Paragraph 5.4.
    
	
 
    	
 
    	
 
    
	
8.
    	
RISK OF LOSS
    
	
 
    	
 
    	
 
    
	
 
    	
8.1.
    	
The   risk of loss of the Lift will pass to Purchaser upon execution of the   Certificate of Substantial Completion or deemed completion of the Lift under   Paragraph 5.4, regardless of whether the Contract Price has been paid in   full.
    
	
 
    	
 
    	
 
    
	
9.
    	
SECURITY INTEREST
    
	
 
    	
 
    	
 
    
	
 
    	
9.1.
    	
Until   such time as the Purchase Price and all other amounts due and owing under   this Agreement have been paid in full: the Lift will be and remain personal   or movable property and will not be deemed part of realty even though affixed   or attached thereto, whether or not placed upon a permanent foundation.
    
	
 
    	
 
    	
 
    
	
 
    	
9.2.
    	
Purchaser   agrees to execute any reasonably drafted instruments or documents complying   with the obligations required by its lenders related to security and that   L-POA deems appropriate to protect or perfect the security interest,   including Uniform Commercial Code financing statements or similar documents   to perfect L-POA’s interest in the Lift as a first priority lien. If   requested by L-POA, Purchaser agrees to provide L-POA with a legal   description of the land on which the Lift will be erected.
    
	
 
    	
 
    	
 
    
	
 
    	
9.3.
    	
If   Purchaser fails to pay the Contract Price or any portion thereof in   accordance with the Agreement or fails to pay any additional charges or   otherwise defaults in the performance of any of its obligations, then L-POA   will have all the rights and remedies of a secured creditor under the Uniform   Commercial Code or similar law as in force in the jurisdiction where the Lift   is located subject to the limitations noted in section 9.2 above, including   the right to repossession of the Lift, in addition to its other rights and   remedies under this Agreement or otherwise provided by law or in equity.
    


 

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10.
    	
PURCHASER’S INSURANCE
    
	
 
    	
 
    	
 
    
	
 
    	
10.1.
    	
Purchaser   shall purchase and maintain in full force and effect the following insurance   while the Work is being performed:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
10.1.1.
    	
Adequate   Commercial General Liability insurance on an ISO standard form or its   equivalent with minimum limits of US $1,000,000 for bodily injury, including   death, or property damage arising out of any one occurrence or in the   aggregate.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
10.1.2.
    	
Business   Automobile Liability Insurance with minimum limits of $1,000,000 per   occurrence single limit for bodily injury and property damage combined   covering all vehicles owned or operated by the Purchaser.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
10.1.3.
    	
Statutory   Workers Compensation Insurance in accordance with the provisions of the   applicable Workers Compensation Act, if any, of the jurisdiction in which the   Lift is constructed, for all of Purchaser’s employees assisting, whether   directly or indirectly, in the Work.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
10.1.4.
    	
If   requested, Purchaser shall provide L-POA with a Certificate of Insurance   evidencing the insurance policies described in this section. The Certificate   of Insurance shall provide for a minimum of thirty (30) days written notice   to L-POA prior to cancellation of any policy.
    
	
 
    	
 
    	
 
    
	
11.
    	
L-POA’S INSURANCE
    
	
 
    	
 
    	
 
    
	
 
    	
11.1.
    	
L-POA   shall purchase and maintain in full force and affect the following insurance   while the Work is being performed.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
11.1.1.
    	
Commercial   General Liability Insurance including Products/Completed Operations Liability   insurance on an ISO standard form or its equivalent with limits of US   $5,000,000 for bodily injury, including death or property damage arising out   of any one occurrence or in the aggregate. If requested, Purchaser may be   included as an additional insured.
    


 

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11.1.2.
    	
Business   Automobile Liability Insurance on all vehicles used by L-POA in connection   with this Agreement with minimum limits of $2,000,000 per occurrence single   limit for bodily injury and property damage combined.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
11.1.3.
    	
Statutory   Workers Compensation insurance in accordance with the provisions of the   applicable Workers Compensation Act, if any, of the jurisdiction in which the   Lift is constructed, for all of L-POA employees to be engaged in the Work   under this Agreement and all Purchaser’s borrowed employees under the control   of L-POA, and in case the Work is subcontracted, L-POA shall require the   subcontractor to provide the Workers Compensation Insurance for all of the   subcontractor’s employees to be engaged in such Work.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
11.1.4.
    	
Until   Title to the Lift passes to Purchaser, L-POA shall carry installation risk   insurance covering the goods and materials forming a part of the Work arising   from covered causes of loss (per specific policy terms and conditions) with a   coverage limit of US $7,000,000.00 at the installation site.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
11.1.5.
    	
L-POA   shall provide Purchaser with a Certificate of Insurance acceptable to the   Purchaser evidencing the insurance policies described in this section. The   Certificate of Insurance shall provide for a minimum of thirty (30) days   written notice to Purchaser prior to cancellation of any policy.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
11.1.6.
    	
All   subcontractors of L-POA shall provide the Purchaser with proof of the above   applicable insurance coverage at limits and providers approved by the   Purchaser prior to entering the Purchaser’s premises.
    
	
 
    	
 
    	
 
    	
 
    
	
12.
    	
WARRANTIES
    
	
 
    	
 
    	
 
    
	
 
    	
12.1.
    	
When   used and maintained in accordance with the maintenance and operation manual   with respect to the Lift provided by L-POA to Purchaser and except for items   warrantied as described under Paragraph 12.3, L-POA warrants that the Lift   when delivered to Purchaser, will be of merchantable quality and free from   defects in materials and workmanship including but not limited to design,   engineering and installation for two (2)
    


 

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years   or 3,000 hours of operation from the date of delivery by L-POA or its   authorized dealer, whichever comes first (the “Warranty Period” see Exhibit L).
    
	
 
    	
 
    	
 
    
	
 
    	
12.2
    	
During   the Warranty Period, L-POA agrees to supply Purchaser, without charge, with   any new parts to replace any part of the Lift that is defective as to   material or workmanship. Any replacement parts will be installed at   Purchaser’s sole cost and expense. However, in any one warranty year, L-POA   will reimburse Purchaser for any labor hours in excess of 100 hours that   Purchaser incurs repairing or replacing L-POA warranted parts and this shall   be billed on an hourly basis of $50 per hour for all manual labor and $100   per hour for all snowcat time. With the exceptions listed above L-POA is   under no obligation to provide, or pay for, the cost of labor for repairs or   replacement of parts during the Warranty Period. L-POA is responsible for   cable splicing, which will be at L-POA’s cost and expense during the Warranty   Period. Under no circumstances will L-POA be under any obligation to   contribute to the cost for normal maintenance and repairs to the Lift or   non-defective items requiring replacement as a result of ordinary use or wear   and tear.
    
	
 
    	
 
    	
 
    
	
 
    	
12.3
    	
The   Warranty Period as to component parts and equipment included in the Lift   which are supplied by third party vendors not affiliated with L-POA will be   limited to the applicable term and limitations of the warranty provided by   such third party vendors to L-POA (Exhibit L). Such third party vendor   warranties are not exclusive to L-POA and L-POA represents that the benefits   of these warranty benefits shall run to the Purchaser. Items that   specifically fall under this warranty provision are the diesel engines,   electric motor, electric controls, haul rope, and gearbox. Any failed   warrantied part must be returned to L-POA within sixty (60) days of the date   that the replacement part is shipped. If the failed part is not returned   within 60 days, the Purchaser shall pay for the replacement part.
    
	
 
    	
 
    	
 
    
	
 
    	
12.4
    	
L-POA   will not be liable for breach of its warranties set forth in Paragraph 12, if   such breach is caused by: (a) Force Majeure (as defined in Paragraph   20), or other cause beyond L-POA’s reasonable control; (b) alteration,   modification or change in the Work or Lift and/or use of component parts or   equipment supplied by those other than L-POA, without L-POA’s prior written   consent, except when done according to plans and specifications specifically   referring to such additional work, supplied by L-POA and warranted by L-POA   in writing; (c) improper maintenance operation or use of the Lift;
    


 

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(d) abnormal   wind conditions; (e) damages caused by abrasives, dirt or corrosion; (f) improper   cable alignment or lubricant; or (g) any error in any geographical   investigation or estimate of snow depth or in any engineering information   supplied by Purchaser or its agents to L-POA.
    
	
 
    	
 
    	
 
    
	
 
    	
12.5
    	
Except   for cable splicing, the right to require the replacement of a defective part   will be Purchaser’s sole remedy for any breach of the warranties provided in   this Agreement. L-POA will not be liable for loss of business, consequential   damages, other direct or indirect damages of any kind whatsoever whether   founded on breach of contract, tort or strict liability or otherwise,   resulting from breach of the aforesaid warranties. L-POA specifically   disclaims any other obligation, expressed or implied. EXCEPT AS SPECIFICALLY DESCRIBED IN THIS PARAGRAPH   12, THERE ARE NO OTHER WARRANTIES EXPRESS OR IMPLIED WHICH EXTEND BEYOND THE   DESCRIPTION SET FORTH IN THIS AGREEMENT AND ALL OTHER WARRANTIES, EXPRESSED   OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND   FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED.
    
	
 
    	
 
    	
 
    
	
13.
    	
LIMITATIONS ON LIABILITY
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
13.1.
    	
During   the period of this Agreement and thereafter, L-POA will not be liable for any   property damage, bodily injury or loss of life, if such occurrences are   caused by, but not limited to, any of the following:
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
13.1.1.
    	
Act   of God, avalanche, lightning, fire, collision, landslide, earthquake,   significant earth movement, flood, catastrophic winds, war, insurrection,   sabotage, vandalism or any other cause beyond L-POA’s reasonable control.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
13.1.2.
    	
Unauthorized   alterations or changes to the Lift, including relocation of the Lift or any   of its components and/or use of parts supplied by persons other than L-POA,   except with L-POA’s written consent or in accordance with plans and   specifications supplied to Purchaser by L-POA or its agents.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
13.1.3.
    	
Any   error in any estimate of snow depth, soil engineering, or in any other   engineering information supplied by Purchaser or its agents to L-POA;
    


 

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13.1.4.
    	
Failure   of Purchaser to operate or maintain the Lift in accordance with: (a) the   provisions set forth in the maintenance and operation manual with respect to   the Lift provided by L-POA; (b) any standards or procedures provided by   L-POA through its written service or similar bulletins; (c) any then   applicable Federal, State, or local laws, regulations or codes; or (d) Purchaser’s   own policies and procedures for the operation and maintenance of the Lift.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
13.1.5.
    	
Any   incorrect or inappropriate use, lack of experience of any person involved in   the operation of the Lift, overloading of the Lift, negligence of Purchaser   in the operation or in maintenance of the Lift.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
13.1.6.
    	
Operation   of the Lift: (a) during any unsafe conditions, including unsafe ice   accumulation, high winds, lightning, excessive snow depths, lack of adequate   visibility; (b) with any safety systems bypassed; or (c) with any   obstructions that may interfere the lift operation.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
13.1.7.
    	
Claims   by third parties arising as a result of or following the sale or disposition   of the Lift by Purchaser.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
13.2.
    	
Notwithstanding   anything to the contrary contained herein, in no event shall L-POA’s   liability for any breach of the terms and provisions exceed the amounts paid   by Purchaser to L-POA on account of the Contract Price.
    
	
 
    	
 
    	
 
    
	
 
    	
13.3.
    	
In   the event of any dispute or claim under this Agreement, Purchaser may not   recover incidental or consequential damages from L-POA.
    
	
 
    	
 
    	
 
    
	
14.
    	
PROPRIETARY INFORMATION
    
	
 
    	
 
    	
 
    
	
 
    	
14.1.
    	
Purchaser   agrees that all software, drawings, sketches, specifications, operation and   maintenance manuals and other technical documents, as well as samples,   illustrations and related documents provided by L-POA: (a) constitute   proprietary engineering information of L-POA (the “Proprietary Information”); (b) may be used by   Purchaser and its agents or representatives solely in connection the   construction, maintenance and operation of the
    


 

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Lift;   and (c) may not be used by Purchaser or its agents or representatives   for the design or modification of this or any other installation.
    
	
 
    	
 
    	
 
    
	
 
    	
14.2.
    	
The   parties acknowledge that Purchaser may disclose Proprietary Information to   applicable governmental authorities to the extent required for certification   or licensure of the Lift contemplated under this Agreement.
    
	
 
    	
 
    	
 
    
	
15.
    	
CHANGES IN THE WORK
    
	
 
    	
 
    	
 
    
	
 
    	
15.1.
    	
If   Purchaser requests a change in the Work, or if changes in the specifications   are required by a governmental authority having jurisdiction over the Work or   are necessitated by material differences between the physical conditions upon   which the specifications are based and actual on-site physical conditions,   the Purchase Price will be equitably increased or decreased, as the case may   be. No changes will be made in the Work, unless first agreed to in writing by   Purchaser and L-POA. Such a writing shall include the exact change expected,   the exact adjustment in cost(if any), and the time necessary to complete the   change. In the event the parties are unable to agree on all equitable price   adjustments for such changes, the parties will submit such price dispute to   binding arbitration, as provided in this Agreement.
    
	
 
    	
 
    	
 
    
	
16.
    	
REGULATORY APPROVAL
    
	
 
    	
 
    	
 
    
	
 
    	
16.1.
    	
Except   as otherwise provided in this Agreement, all permits, licenses approvals and   authorizations (the “Required Permits”) required to permit L-POA to perform   the Work and install the Lift without any restriction, condition or   limitations which would prevent or unduly hinder L-POA’s ability to perform   the Work hereunder or result in any unreasonable economic burden to L-POA,   will be secured by Purchaser and will be in the name of Purchaser.
    
	
 
    	
 
    	
 
    
	
 
    	
16.2.
    	
L-POA   agrees to comply with the conditions contained in the Required Permits if   L-POA has specific knowledge of such conditions.
    
	
 
    	
 
    	
 
    
	
 
    	
16.3.
    	
Purchaser   agrees to notify L-POA of any violations or potential violations of any   Required Permits. After being so notified, L-POA will take all actions to   comply with the Required Permits that are commercially reasonable.
    


 

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16.4.
    	
In   the event that the Required Permits are not granted on a timely basis through   no fault of L-POA, Purchaser will be deemed to have materially breached this   Agreement.
    
	
 
    	
 
    	
 
    
	
17.
    	
BORROWED WORKERS
    
	
 
    	
 
    	
 
    
	
 
    	
17.1.
    	
Borrowed   Workers will at all times remain employees of Purchaser.
    
	
 
    	
 
    	
 
    
	
18.
    	
NOTICE OF ACCIDENTS
    
	
 
    	
 
    	
 
    
	
 
    	
18.1.
    	
Following   the Completion Date, Purchaser will promptly notify L-POA in writing of any   accident relating to the Lift resulting in serious bodily injury, death or   material property damage.
    
	
 
    	
 
    	
 
    
	
19.
    	
CONFIDENTIALITY
    
	
 
    	
 
    	
 
    
	
 
    	
19.1.
    	
L-POA   and Purchaser agree and acknowledge that the Proprietary Information and the   provisions of this Agreement in general, and specifically the Purchase Price   paid by Purchaser to L-POA and the warranties extended to Purchaser, are and   will forever be confidential and held by the parties and their respective   agents and representatives in the strictest confidence.
    
	
 
    	
 
    	
 
    
	
 
    	
19.2.
    	
In   the event either party or any of its agents or representatives is ordered by   a court of competent jurisdiction to disclose any of the Proprietary   Information or any of the provisions of this Agreement, that party will   notify the other party of such order prior to making any such disclosures. In   addition the Purchaser shall be permitted to disclose details of this   agreement to its lenders, stock holders or related individuals with a legal   or business need to know such details. The Purchaser, without disclosing the   specific details shall be permitted to announce publicly the general amount   of lift related improvements made at the resort during 2011.
    
	
 
    	
 
    	
 
    
	
 
    	
19.3.
    	
Neither   party nor any of its agents or representatives will disclose any of the   Proprietary Information or any of the provisions of this Agreement to any   person; provided that each party may make necessary disclosures to their   respective Subcontractors, employees or
    


 

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agents   who have a direct and specific need for such information, and who will be   advised and will agree to the confidentiality provisions provided for herein.
    
	
 
    	
 
    	
 
    
	
 
    	
19.4.
    	
In   the event of a breach or threatened breach of the provisions of this   Paragraph 19 by a party or its agents or representatives, the parties   acknowledge that the nonbreaching party will suffer immediate irreparable   harm and that the nonbreaching party will be entitled to all remedies   available to it at law or in equity, including, but not limited to, a   temporary restraining order and injunction prohibiting the disclosure of such   information.
    
	
 
    	
 
    	
 
    
	
20.
    	
FORCE MAJEURE
    
	
 
    	
 
    	
 
    
	
 
    	
20.1.
    	
In   the event of Force Majeure, which will include, but not be limited to, causes   beyond the control and without the fault or negligence of L-POA. Such causes   include but are not limited to acts of god, acts of the United States   government, fires, and unusually severe weather , strikes, labor conflicts   beyond the reasonable control of L-POA which prevents or impedes, increases   the cost of or delays L-POA’s performance under this Agreement, L-POA may   elect to suspend the Agreement. L-POA will give Purchaser written notice   within ten (10) days of the date L-POA becomes aware of circumstances   constituting Force Majeure.
    
	
 
    	
 
    	
 
    
	
 
    	
20.2.
    	
The   Scheduled Completion Date will automatically be extended for a period equal   to such delay up to the first twenty (20) days. If the circumstances   constituting the Force Majeure continues for more than twenty (20) days, the   Scheduled Completion Date will be automatically extended for periods of   thirty (30) days until such circumstance no longer exist. In the event of an   increase in costs as a result of a Force Majeure, the Purchase Price will be   increased by the amount of such increased costs.
    
	
 
    	
 
    	
 
    
	
 
    	
20.3.
    	
Neither   party will be in default of its contractual obligations under this Agreement   if such obligations cannot be satisfied as a result of Force Majeure, it   being understood that each Party shall fulfill its contractual obligations   according to their respective performance before the operation of Force   Majeure.
    


 

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21.
    	
TERMINATION
    
	
 
    	
 
    	
 
    
	
 
    	
21.1.
    	
Except   as otherwise set forth in this Agreement, if either party to this Agreement   materially breaches any of the terms, covenants or conditions of this   Agreement, the nonbreaching party, so long as it. itself is not in material   breach, may, upon giving thirty (30) days’ written notice of the alleged   default to the breaching party, giving that party thirty (30) days from the   receipt of the notice to cure the alleged breach. In the event that the   breaching part does not cure the breach within the thirty (30) day window the   non breaching party will then have the right to terminate this Agreement or   stop the Work and pursue any remedy available at law or in equity. In   addition to any other material breaches, each of the following will be   considered a material breach:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
21.1.1.
    	
If   without the written consent of L-POA, the property should be seized or levied   upon under any legal or governmental process against Purchaser or the   property;
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
21.1.2.
    	
If   either party becomes insolvent, or is subject to any bankruptcy or insolvency   proceeding, if either party makes an assignment for the benefit of creditors,   if there is a failure or termination of a party’s business, if a receiver is   appointed for a party or all or a substantial part of its assets or business;
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
21.1.3.
    	
If   the Lift or any portion thereof is transferred or hypothecated to a third   party; or
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
21.1.4.
    	
Failure   by Purchaser to make any payment when due (notwithstanding any other   provision in Paragraph 21 and in accordance with Paragraph 4.1, L-POA has the   right to stop Work immediately in this case).
    
	
 
    	
 
    	
 
    	
 
    
	
22.
    	
WAIVER
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
22.1.
    	
Failure   to insist upon strict compliance with any terms, covenants and conditions   will not be deemed a waiver of any breach of such terms, covenants and   conditions, nor will any waiver or relinquishment of any right or power at   any one or more times be deemed a waiver or relinquishment of such right or   power at any other time or times. No waiver will be valid unless in writing   and signed by authorized officers of the parties.
    


 

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22.2.
    	
No   delay by either party in exercising its rights will be a waiver nor will a   waiver on one occasion operate as a waiver on a future occasion.
    
	
 
    	
 
    	
 
    	
 
    
	
23.
    	
INDEMNIFICATION
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
23.1.
    	
Except   as otherwise provided herein and subject to the limitation set forth in   Paragraphs 12, 13 and 20, each party agrees to indemnify, defend and hold   harmless the other party and its partners, its subsidiaries and affiliates,   their respective agents, officers, directors, servants and employees and   owners, successors and assigns of and from any and all liability, claims,   liens, demands, actions and causes of action whatsoever and including   reasonable attorneys’ fees and costs arising out of or related to any loss,   cost, damage or injury, including death, of any person or damage to property   of any kind caused by, and only to the extent of, the misconduct or negligent   acts, errors or omissions of L-POA or Purchaser, as the case may be, its   Subcontractors, materialmen or any other person directly or indirectly   employed by them, or any of them, while engaged in any activity associated   with the design and/or manufacture of the Lift, the installation thereof, or   any activity related thereto, or associated therewith, whether contractually   or otherwise. This indemnification clause shall survive the term of this   agreement.
    
	
 
    	
 
    	
 
    
	
24.
    	
ARBITRATION
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
24.1.
    	
The   parties agree to submit all controversies, claims and matters of difference   arising in the interpretation of performance of this Agreement to binding   arbitration in West Dover, Vermont, according to the construction rules and   practices of the American Arbitration Association from time to time in force.   This submission and agreement to arbitrate will be specifically enforceable.   Arbitration may proceed in the absence of either party if proper notice of   such proceedings has been given to such party. Commencement of arbitration   will not affect any of the parties’ rights or obligations. It is agreed that   one arbitrator will be an expert in the field and that only disputes between   Purchaser and L-POA exclusively will be arbitrable. The arbitration decision   is not appealable. The arbitrators must agree in advance to render a decision   within forty-five (45) days of completion of arbitration. The prevailing   party in arbitration, as determined by arbitrators, shall recover its costs   and attorneys fees from the other party, including the arbitrators’ fees.
    


 

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25.
    	
NOTICES
    
	
 
    	
 
    	
 
    
	
 
    	
25.1.
    	
Any   notices to be given by either party to the other pursuant to this Agreement   or other communications will be faxed, e-mailed, hand delivered or mailed by   certified mail, return receipt requested, at the address of the respective   parties as follows:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
If   to L-POA:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Mr. Rick   Spear
   President
   Leitner-Poma of America, Inc.
   2746 Seeber Drive, Building A
   Grand Junction, CO 81506
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
If   to Purchaser:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Kelly   Pawlak
   General Manager
   Mount Snow Resort
   39 Mount Snow Road
   West Dover, VT 05356
    
	
 
    	
 
    	
 
    
	
 
    	
25.2.
    	
The   time of the giving of such notice will be deemed to be the time when it is   faxed, e-mailed, personally hand delivered or the third day after it was   mailed, if mailed. Either party may change the address to which notice will   be given by notice so given to the other.
    
	
 
    	
 
    	
 
    
	
26.
    	
ASSIGNMENT
    
	
 
    	
 
    	
 
    
	
 
    	
26.1.
    	
Neither   party to this Agreement will assign this Agreement without the written   consent of the other.
    
	
 
    	
 
    	
 
    
	
27.
    	
MISCELLANEOUS
    
	
 
    	
 
    	
 
    
	
 
    	
27.1.
    	
Section headings   are inserted for convenient reference and do not define, limit or prescribe   the provisions of any section.
    


 

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27.2.
    	
Since   L-POA has an office in Vermont and the work is being performed in Vermont   this Agreement will be subject to and construed and interpreted in accordance   with laws of the State of Vermont. The Parties consent to jurisdiction in   Vermont and to venue in Windham County, Vermont.
    
	
 
    	
 
    	
 
    
	
 
    	
27.3.
    	
This   Agreement, including all exhibits, contains the entire agreement between the   parties and may not be modified except by written instrument signed by both   parties. This Agreement supersedes prior negotiations, representations or   agreements, whether oral or written.
    
	
 
    	
 
    	
 
    
	
 
    	
27.4.
    	
Each   term, condition, and provision of this Agreement will be valid and   enforceable to the fullest extent permitted by law. If any term, condition or   provision of this Agreement will be held invalid or unenforceable to any   extent, then the remainder of this Agreement or the application of such term,   condition, or provision to any persons or circumstances other than those to   which it is held invalid or unenforceable will not be affected thereby.
    
	
 
    	
 
    	
 
    
	
 
    	
27.5.
    	
The   relationship between Purchaser and L-POA is that of independent contracting   parties. This Agreement will not be construed to create any partnership or   joint venture between Purchaser and L-POA. L-POA, employees of L-POA and all   Subcontractors will at no time be deemed to be or act as employees or agents   of Purchaser.
    
	
 
    	
 
    	
 
    
	
 
    	
27.6.
    	
This   Agreement will be binding upon and inure to the benefit of the parties, their   successors and assigns.
    
	
 
    	
 
    	
 
    
	
 
    	
27.7.
    	
This   Agreement and any changes to this Agreement may be signed electronically by   facsimile or email, and in multiple counterparts, each of which, taken   together, shall have the same force and effect as one integrated original.
    
	
 
    	
 
    	
 
    
	
 
    	
27.8.
    	
L-POA   and Purchaser certify and acknowledge that this Agreement is executed   pursuant to proper corporate authority and by a person authorized to-do so,   and shall provide any and all evidence of corporate authority as requested by   either party.
    


 

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PART TWO OF A THREE PART AGREEMENT

 

This Part Two of the Three Part Agreement between the parties memorializes the scope of work, related obligations and representations of the parties for the retrofitting of the Purchaser’s Grand Summit Express (“Lift 11”).

 

The following sections from Part One of this Agreement are specifically incorporated into this Part Two of the Agreement: Section, Definitions; Section 4, Terms of Payment; Section 6, Punch List; Section 14, Proprietary; Section 15, Changes in the Work; Section 17, Borrowed Workers; Section 19, Confidentiality; Section 20, Force Majeure; Section 21, Termination; Section 22, Waiver; Section 24 Arbitration; Section 25, Notices; Section 26, Assignment; Section 27, Miscellaneous.

 

RECITALS FOR PART TWO OF AGREEMENT

 

WHEREAS, the Purchaser owns a four passenger detachable chair lift called the Grand Summit Express also known as Lift 11; and

 

WHEREAS, the Purchaser desires to replace the existing lift chairs and construct an enclosure over the bottom terminal, both on the Grand Summit Express; and

 

WHEREAS, 1-POA shall provide the Purchaser with six 1-4-1 sheave assemblies; and

 

WHEREAS, L-POA has the expertise and know how to engineer and design replacement chairs and enclosures for the Grand Summit Express;

 

NOWTHEREFORE, The Parties agree to the following as it relates to the refurbishing of the Grand Summit Express:

 

	
28.
    	
DUTIES AND OBLIGATIONS FOR THE LIFT 11 RETROFIT CHAIRS
    
	
 
    	
 
    	
 
    
	
 
    	
28.1
    	
L-POA   shall design, engineer and provide to the Purchaser 172 new quad type lift   chairs, including padded seat with back cushions, safety bails and footrests.
    
	
 
    	
 
    	
 
    
	
 
    	
28.2
    	
Included   in the design of the new lift chairs shall be special new hangers for the   chairs that will be attached to chair heads provided by Purchaser and   refurbished by L-POA.
    
	
 
    	
 
    	
 
    
	
 
    	
28.3
    	
L-POA   shall insure proper bolt fit in the new hangers.
    


 

20









 

	
 
    	
28.4
    	
Purchaser   shall be responsible for removing and disposing of the existing Lift 11   chairs and shipping all chair heads to L-POA.
    
	
 
    	
 
    	
 
    
	
 
    	
28.5
    	
L-POA   shall be responsible for shipping refurbished chairs to Purchaser.
    
	
 
    	
 
    	
 
    
	
 
    	
28.6
    	
L-POA   shall provide six (6) 1-4-1 type sheave assemblies engineered to be used   on Lift 11. Purchaser shall be responsible for the installation of these   assemblies.
    
	
 
    	
 
    	
 
    
	
 
    	
28.7
    	
Purchaser   shall be responsible for assembly and installation of the new chairs on the   Lift 11 line.
    
	
 
    	
 
    	
 
    
	
 
    	
28.8
    	
Provided   Purchaser delivers the chair heads to L-POA no later than May 15 L-POA   shall deliver the refurbished chairs to Purchaser no later than June 15   for its schedule June 30 load test.
    
	
 
    	
 
    	
 
    
	
 
    	
28.9
    	
The   shipping costs of items referred to in this section 28 are not included in   the Contract Price and this cost shall be paid by Purchaser.
    
	
 
    	
 
    	
 
    
	
29.
    	
DUTIES AND OBLIGATIONS FOR THE LIFT 11 ENCLOSURE
    
	
 
    	
 
    	
 
    
	
 
    	
29.1
    	
L-POA   shall design, engineer, and construct an enclosure for the bottom terminal of   Lift 11 as shown on the plans described in Exhibit J.
    
	
 
    	
 
    	
 
    
	
 
    	
29.2
    	
L-POA   is responsible for all labor, including travel expenses, and expenses related   to equipment needed in the construction of the structure.
    
	
 
    	
 
    	
 
    
	
 
    	
29.3
    	
The   enclosure shall include all related equipment for its operation except that   Purchaser shall be responsible for heat and lights and the inside walkways.
    
	
 
    	
 
    	
 
    
	
 
    	
29.4
    	
The   enclosure shall be designed, engineered and constructed in a good and   workmanlike manner using new materials and comply with Vermont Tramway Board   Regulations.
    


 

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29.5
    	
L-POA   in constructing the enclosure shall use care to avoid damaging the existing   bottom terminal structure. If L-POA damages the structure or equipment L-POA   shall replace or repair the damage at no expense to the Purchaser.
    
	
 
    	
 
    	
 
    
	
30.
    	
TITLE
    
	
 
    	
 
    	
 
    
	
 
    	
30.1
    	
Title   to the enclosure shall pass to the Purchaser upon execution of a Certificate   of Substantial Compliance executed by the Purchaser.
    
	
 
    	
 
    	
 
    
	
 
    	
30.2
    	
Besides   the insurance types and limits spelled out in Section 11 of Part One   of this agreement, L-POA shall, until title to the enclosure passes to the   Purchaser, carry installation risk insurance in an amount sufficient to   insure loss of all goods and materials forming all parts of the enclosure,   the existing terminal and the haul rope.
    
	
 
    	
 
    	
 
    
	
31.
    	
WARRANTY
    
	
 
    	
 
    	
 
    
	
 
    	
31.1
    	
When   used and maintained in accordance with industry standards with respect to the   finished chairs provided by L-POA for use on Lift 11 L-POA warrants that the   Lift 11 chairs and the terminal enclosure will be of merchantable quality and   free from defects for two (2) years or in the case of the chair and   sheave assembly 3,000 hours of operation from the date of delivery by L-POA   (the “Warranty Period”).
    
	
 
    	
 
    	
 
    
	
 
    	
31.2
    	
It   is expressly understood that L-POA shall have no responsibility or liability   whatsoever for the failure of any components of the existing Lift 11 that   were not supplied by L-POA. It is further understood that the integration of   the new L-POA equipment into the exiting lift equipment is the decision of   the Purchaser alone, based on the expertise and representations of L-POA.
    
	
 
    	
 
    	
 
    
	
 
    	
31.3
    	
During   the Warranty Period, L-POA agrees to supply Purchaser, without charge, with   any new parts to replace any part of the new chair that is defective as to   material or workmanship. Any replacement parts will be installed at   Purchaser’s sole cost and expense. However, in any one warranty year, L-POA   will reimburse Purchaser for any labor hours in excess of 100 hours that   Purchaser incurs repairing or replacing L-POA warranted parts and this shall   be billed to L-POA on an hourly basis of $50 per hour for manual labor and   $100 per hour for snowcat time.
    


 

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31.4
    	
Any   failed warrantied part must be returned to L-POA within sixty (60) days of   the date that the replacement part is shipped. If the failed part is not   returned within 60 days, the Purchaser shall pay for the replacement part.
    
	
 
    	
 
    	
 
    
	
 
    	
31.5
    	
L-POA   will not be liable for breach of its warranties set forth herein, if such   breach is caused by: (a) Force Majeure (as defined in Paragraph 20 of   the agreements first part), or other cause beyond L-POA’s reasonable control;   (b) alteration, modification or change in the Work or Lift 11 chair or   enclosures without L-POA’s prior written consent, except when done according   to plans and specifications specifically referring to such additional work,   supplied by L-POA and warranted by L-POA in writing; (c) improper   maintenance operation or use of the Lift 11 chairs;
    
	
 
    	
 
    	
 
    
	
 
    	
31.6
    	
The   right to require the replacement of a defective part will be Purchaser’s sole   remedy for any breach of the warranties provided in this Part Two of the   Agreement. L-POA will not be liable for loss of business, consequential damages,   other direct or indirect damages of any kind whatsoever whether founded on   breach of contract, tort or strict liability or otherwise, resulting from   breach of the aforesaid warranties. L-POA specifically disclaims any other   obligation, expressed or implied. EXCEPT AS   SPECIFICALLY DESCRIBED IN THIS PARAGRAPH, THERE ARE NO OTHER WARRANTIES   EXPRESS OR IMPLIED WHICH EXTEND BEYOND THE DESCRIPTION SET FORTH IN THIS   AGREEMENT AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE   IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,   ARE EXCLUDED.
    
	
 
    	
 
    	
 
    
	
32.
    	
LIMITATIONS ON LIABILITY
    
	
 
    	
 
    	
 
    
	
 
    	
32.1
    	
During   the period of this Agreement and thereafter, L-POA will not be liable for any   property damage, bodily injury or loss of life, if such occurrences are   caused by, but not limited to, any of the following:
    
	
 
    	
 
    	
 
    
	
 
    	
32.2
    	
L-POA   will warrant and be liable only for L-POA equipment, and claims arising as a   result of this equipment, provided that any chair or enclosure failure and   resulting claim is caused solely by a defect in the L-POA equipment.
    


 

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32.3
    	
Claims   by third parties arising as a result of or following the sale or disposition   of the Lift by Purchaser.
    
	
 
    	
 
    	
 
    
	
 
    	
32.4
    	
Notwithstanding   anything to the contrary contained herein, in no event shall L-POA’s   liability for any breach of the terms and provisions exceed the amounts paid   by Purchaser to L-POA on account of the Contract Price.
    
	
 
    	
 
    	
 
    
	
33
    	
INDEMNIFICATION
    
	
 
    	
 
    	
 
    
	
 
    	
33.1
    	
Except   as otherwise provided herein and subject to the limitation set forth in   Paragraphs 12, 13 and 20, each party agrees to indemnify, defend and hold   harmless the other party and its partners, its subsidiaries and affiliates,   their respective agents, officers, directors, servants and employees and   owners, successors and assigns of and from any and all liability, claims,   liens, demands, actions and causes of action whatsoever and including   reasonable attorneys’ fees and costs arising out of or related to any loss,   cost, damage or injury, including death, of any person or damage to property   of any kind caused by, and only to the extent of, the misconduct or negligent   acts, errors or omissions of L-POA or Purchaser, as the case may be, its   Subcontractors, materialmen or any other person directly or indirectly   employed by them, or any of them, while engaged in any activity associated   with the design and/or manufacture of the Lift 11 chairs, sheaves or   enclosure, the installation thereof, or any activity related thereto, or   associated therewith, whether contractually or otherwise.
    
	
 
    	
 
    	
 
    
	
 
    	
33.2
    	
In   addition the Purchaser agrees to indemnify and hold harmless L-POA from any   claims from the failure of the existing lift equipment that was not supplied   by L-POA and from any resulting personal injury or property damage, including   damages caused by inaccuracy of any material information and the like   provided by the Purchaser with respect to the existing lift equipment not   supplied by L-POA.
    


 

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PART THREE OF THE THREE PART AGREEMENT

 

This Part Three of the Three Part Agreement between the parties known as Mount Snow, Ltd. (MSL) and Leitner-Poma of America (L-POA) hereby agree to the following clauses which pertain to and affect both Part One and Two of this Agreement.

 

	
34.
    	
L-POA EMPLOYEES
    
	
 
    	
 
    	
 
    
	
 
    	
34.1
    	
Employees   retained by L-POA (including borrowed Purchaser’s employees) shall at all   times remain and are L-POA’s employees and shall not be the employees of   Purchaser for purposes of unemployment compensation, workers compensation,   medical insurance or retirement benefits.
    
	
 
    	
 
    	
 
    
	
 
    	
34.2
    	
Upon   written or verbal notification to L-POA of an unsatisfactory employee,   Purchaser expects the L-POA to discipline the employee. L-POA shall then   notify Purchaser of the action taken.
    
	
 
    	
 
    	
 
    
	
 
    	
34.3
    	
L-POA   shall ensure that its employees conduct themselves in responsible and   appropriate manner, abiding by all of Purchaser’s policies and practices   related to the Equal Employment Opportunity Commission’s and Vermont’s Fair   Employment Practice laws and regulations including all not limited to   harassment. L-POA’s employees shall maintain a neat appearance and   professional manner while on the Purchaser’s premises.
    
	
 
    	
 
    	
 
    
	
 
    	
34.4
    	
L-POA   shall not hire any current Purchaser employees without the express written   consent of the Purchaser unless employee approaches L-POA for hire without   being directly solicited by LPOA.
    
	
 
    	
 
    	
 
    
	
 
    	
34.5
    	
By   written notice, Purchaser may require L-POA to remove from the work place any   of its employees or the employee of its subcontractors whom the Purchaser   deems incompetent, careless, or otherwise objectionable.
    
	
 
    	
 
    	
 
    
	
35.
    	
SAFETY
    
	
 
    	
 
    	
 
    
	
 
    	
35.1
    	
L-POA   is responsible for the safety of its employees (including borrowed   Purchaser’s
    


 

25











 

employees) on the Purchaser premises.

 

	
 
    	
35.2
    	
L-POA   shall insure that its employees and the employees of its Subcontractors are   notified of and observe and abide by all safety regulations and laws   including all OSHA and VOSHA standards, its own and the Purchasers safety   standards and policies, and any revisions of the foregoing that may   hereinafter be applicable.
    
	
 
    	
 
    	
 
    
	
 
    	
35.3
    	
Said   laws and regulations are minimum requirements for L-POA. L-POA shall take any   additional precautions necessary or proper under the circumstances to prevent   injury to or death of persons and/or damage to property. Compliance with such   laws and regulations by the L-POA, or requested by the Purchaser, shall not   relieve the L-POA of its obligations to use due care in performing the work   required under this agreement.
    
	
 
    	
 
    	
 
    
	
 
    	
35.4
    	
L-POA   shall immediately notify Purchaser of any damage to property and/or injury   to, or death of, persons which occurs in connection with or is in any way   related to the work. L-POA shall furnish the Purchaser a written report of   the aforesaid as soon as possible.
    
	
 
    	
 
    	
 
    
	
36.
    	
INFRINGMENT AND PATENT INDEMNITY BY L-POA
    
	
 
    	
 
    	
 
    
	
 
    	
36.1
    	
L-POA   shall indemnify and hold harmless the Purchaser, its owners, employees and   agents, from and against claims based on infringing the rights of others,   including patent, trademark or copyright rights by reason of the work   performed hereunder. Such indemnification shall include all legal fees   related to these charges.
    
	
 
    	
 
    	
 
    
	
 
    	
36.2
    	
The   Purchaser shall give L-POA prompt written notice of any action, claim or   threat of an infringement suit, either oral or written, relating to the work   performed hereunder by L- POA.
    
	
 
    	
 
    	
 
    
	
 
    	
36.3
    	
L-POA   may elect to take over, settle or defend any such claim, action or suit   through counsel of the L-POA’s sole choice and under the L-POA’s sole   direction and at its own expense.
    
	
 
    	
 
    	
 
    
	
 
    	
36.4
    	
If   the use of any such work or item or any part thereof should be enjoined, the   L-POA shall, at L-POA’s sole expense, take any of the following courses of   actions:
    


 

1. To procure for the Purchaser the right to continue using such work or items, or

 

26











 

2. To replace said work or items with equal or superior noninfringing work or item; or

 

3. To modify the work or item, so that it becomes noninfringing, provided such modified work or item shall be equal or superior to the infringing work or item.

 

	
37.
    	
SITE PROTECTION; PERMIT CONDITIONS
    
	
 
    	
 
    	
 
    
	
 
    	
37.1
    	
L-POA   will preserve and protect all existing vegetation such as trees, shrubs and   grass on or adjacent to the site of work which is not to be removed and which   does not unreasonably interfere with the work. Care will be taken in removing   trees authorized for removal by Purchaser to avoid damage to vegetation. Any   limbs or branches of trees broken during such operations or by the careless   operation of equipment, or by work persons, shall be trimmed with a clean cut   and painted with an approved tree pruning compound and the tree debris   removed by L-POA.
    
	
 
    	
 
    	
 
    
	
 
    	
37.2
    	
L-POA   will protect from damage all existing structures, improvements or utilities   at or near the site of the work, and will repair or restore any damage to   such facilities resulting from failure to comply with the requirements of   this contract or the failure to exercise reasonable care in the performance   of the work. If L-POA fails or refuses to repair any such damage promptly the   Purchaser may have the necessary work performed and charge the cost thereof   to L-POA or deduct the cost from payments due or to become due to L-POA.
    
	
 
    	
 
    	
 
    
	
 
    	
37.3
    	
L-POA   shall comply with conditions of all federal, state and local land use permits   pertaining to the Work on Purchaser’s premises provided L-POA is provided a   copy of any applicable permit before this Agreement is executed.
    
	
 
    	
 
    	
 
    
	
38.
    	
HAZARDOUS WASTE; INDEMNITY
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
38.1
    	
Under   the Federal Water Pollution Control Act, certain spills of “oil” and/or   “hazardous substances” are prohibited and must be reported pursuant to the   requirements of 40 CFR Part 110 / Discharge   of Oil. Certain spills of hazardous substances must also be reported pursuant   to CERCLA the Vermont Agency of Natural Resources Division of Waste   Management, and Purchaser.
    


 

27











 

	
 
    	
38.2
    	
L-POA   shall comply with all statutes, laws, ordinances, rules, regulations and   precautions now or hereafter mandated or advised by any federal, state, local   or other governmental agency with respect to its activities on the   Purchaser’s premises related to the use, generation, storage or disposal of   hazardous, toxic, and regulated materials. L-POA hereby indemnifies the   Purchaser for all liability, including all consequential damage, directly or   indirectly, arising out of such use, generation, storage and disposal. L-POA   agrees to be responsible for disposal of all such materials it is responsible   for bringing on the premises.
    
	
 
    	
 
    	
 
    
	
 
    	
38.3
    	
L-POA   agrees to be responsible for disposal of all such materials used and stored   on the Purchaser’s premises.
    
	
 
    	
 
    	
 
    
	
39.
    	
TIME IS OF THE ESSENCE; LIQUIDATED DAMAGES
    
	
 
    	
 
    	
 
    
	
 
    	
39.1
    	
If   the L-POA shall neglect, or refuse to complete the Work by November 9,   2011, as extended hereunder, which is n the time specified for Substantial   Completion in this Agreement, (except for reasons outlined in section 20 of   the Agreement) and such delay is not caused by change in specification or an   act or omission of Purchaser or its agents or representatives, L-POA does   hereby agree, as a part consideration for the awarding of this Agreement, to   pay to the Purchaser, as liquidated damages and not as a penalty for every   day the Completion Date is later than the Scheduled Completion Date, as   follows; first seven days is $2,500/day, next seven days is $5,000/day, and   $10,000/day thereafter but in no case will liquidated damages exceed five   percent (5%) of the Contract Price in the aggregate. The said amount is fixed   and agreed on by and between L-POA and the Purchaser because of the   impracticability and extreme difficulty of fixing and ascertaining the true   value of the damages which the Purchaser will sustain by failure of the L-POA   to complete the Work on time, such as loss of revenue, loss of and other   damages, some of which are indefinite and not susceptible of easy proof, said   amount is agreed to be a reasonable estimate of the amount of damages which   the Purchaser will sustain and said amount shall be deducted from any monies   due or that may become due to L-POA and such amount shall be the entire   damages that Purchaser shall be entitled to recover due to L-POA failure to   complete the Lift on a timely basis and is in lieu of all other damages,   special, general, consequential or otherwise, to which Purchaser may be   entitled pursuant to the laws of the jurisdiction.
    


 

28











 

	
40.
    	
CLEANING UP AND CONDITIONS AFFECTING THE WORK
    
	
 
    	
 
    	
 
    
	
 
    	
40.1
    	
L-POA   shall at all times keep the work area, including storage areas used by it,   free from accumulations of waste material and rubbish. Prior to completion of   the work, L-POA shall be responsible for the removal of any and all waste and   rubbish from and about the premises, all tools, scaffolding, equipment and   materials not the property of the Purchaser. Upon completion of the work,   L-POA shall leave the work area and premises in a neat and workmanlike   condition satisfactory to the Purchaser.
    
	
 
    	
 
    	
 
    
	
41.
    	
USE OF PURCHASER’S NAME OR LIKENESS
    
	
 
    	
 
    	
 
    
	
 
    	
41.1
    	
L-POA   shall treat as confidential all specifications, drawings, blueprints and   other information supplied by the Owner or obtained by the L-POA as result of   performance under this Contract unless such is in the public domain.
    
	
 
    	
 
    	
 
    
	
 
    	
41.2
    	
Prior   to release of any information for publication that the work is being   performed by the L-POA for the Purchaser under this contract, or any   advertisements using the Purchaser’s name or likeness written permission must   be obtained from the owner.
    
	
 
    	
 
    	
 
    
	
 
    	
41.3
    	
The   L-POA shall not disclose any information related to this contract to any   person not authorized by the owner, in writing, to receive same.
    
	
 
    	
 
    	
 
    
	
 
    	
41.4
    	
L-OA is not permitted to use Purchaser’s name, logo or   identity in relations to this project without the express written approval of   the Purchaser.
    


 

29











 

	
42.
    	
EQUAL EMPLOYMENT OPPORTUNITIES
    
	
 
    	
 
    	
 
    
	
 
    	
42.1
    	
L-POA   agrees that it is its policy and that of its agents and sub-contractors to seek   and employ qualified personnel, to provide equal opportunities for the   advancement of employees, including upgrading, promotion and training and to   administer these activities in a manner which will not discriminate against   any person because of race, color, religion, ancestry, national origin, sex,   place of birth, age, disability, or sexual orientation.
    


 

 

	
PURCHASER:
    	
 
    	
L-POA:
    
	
 
    	
 
    	
 
    
	
/s/   Kelly Pawlak 
    	
 
    	
/s/   Richard W. Spear 
    
	
Kelly   Pawlak
    	
 
    	
Richard   W. Spear
    
	
General   Mgr.
    	
 
    	
(title)
    


 

30









 



 

Lift 17
 LPA

 

	
Performance Specification
    	
 
    	
Exhibit A
    


 

	
General Characteristics
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Type of lift
    	
 
    	
Detachable   Chairlift: LPA
    
	
 
    	
 
    	
 
    
	
Slope length
    	
 
    	
7,385   ft
    
	
 
    	
 
    	
 
    
	
Horizontal length
    	
 
    	
7,208   ft
    
	
 
    	
 
    	
 
    
	
Vertical rise of the line
    	
 
    	
1,608   ft
    
	
 
    	
 
    	
 
    
	
Average gradient of line
    	
 
    	
22%
    
	
 
    	
 
    	
 
    
	
Direction of operation
    	
 
    	
CCW
    
	
 
    	
 
    	
 
    
	
Design Characteristics
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Speed
    	
 
    	
1,000   ft/min
    
	
 
    	
 
    	
 
    
	
Capacity
    	
 
    	
2,400   pph
    
	
 
    	
 
    	
 
    
	
Travel time
    	
 
    	
7.4   min
    
	
 
    	
 
    	
 
    
	
Number of carriers
    	
 
    	
102
    
	
 
    	
 
    	
 
    
	
Carrier spacing (approx.)
    	
 
    	
150   ft
    
	
 
    	
 
    	
 
    
	
Carrier interval (approx.)
    	
 
    	
9.0   sec
    
	
 
    	
 
    	
 
    
	
Carrier type
    	
 
    	
Six   place bubble chair with retention bars and footrest
    
	
 
    	
 
    	
 
    
	
Maximum loading conditions
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Uphill
    	
 
    	
100%
    
	
 
    	
 
    	
 
    
	
Downhill
    	
 
    	
25%
    


 

	
Exhibits for   Mount Snow Resort
    	
 
    
	
March 8,   2011
    	
Quality + Simplicity = Reliability
    


 

43











 

	
Drive Terminal
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Model
    	
 
    	
LPA
    
	
 
    	
 
    	
 
    
	
Location
    	
 
    	
Top
    
	
 
    	
 
    	
 
    
	
Primary Drive
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Type
    	
 
    	
AC
    
	
 
    	
 
    	
 
    
	
Capability
    	
 
    	
100%   load at 1,000 fpm
    
	
 
    	
 
    	
 
    
	
Auxiliary Drive
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Type
    	
 
    	
Diesel   engine
    
	
 
    	
 
    	
 
    
	
Capability
    	
 
    	
100%   load at 800 fpm
    
	
 
    	
 
    	
 
    
	
Evacuation Drive
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Type
    	
 
    	
Diesel   engine
    
	
 
    	
 
    	
 
    
	
Capability
    	
 
    	
100%   load at 400 fpm
    
	
 
    	
 
    	
 
    
	
Return Terminal
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Model
    	
 
    	
LPA
    
	
 
    	
 
    	
 
    
	
Location
    	
 
    	
Bottom
    
	
 
    	
 
    	
 
    
	
Parking
    	
 
    	
Continuous   looprail
    


 

44











 

	
Tension
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Type
    	
 
    	
Hydraulic   with two rams
    
	
 
    	
 
    	
 
    
	
Active
    	
 
    	
Bottom
    
	
 
    	
 
    	
 
    
	
Passive
    	
 
    	
Top   Fixed
    
	
 
    	
 
    	
 
    
	
Towers on line
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Type
    	
 
    	
Tubular   with anchor bolts
    
	
 
    	
 
    	
 
    
	
Size
    	
 
    	
24”/30”/36”   diameter
    
	
 
    	
 
    	
 
    
	
Line Gauge
    	
 
    	
5.6   m
    
	
 
    	
 
    	
 
    
	
Cable
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Diameter
    	
 
    	
48   mm
    
	
 
    	
 
    	
 
    
	
Structural Design Parameters
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
1) Wind with ice
    	
 
    	
70   mph (113 kph) entire lift length
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
1”   thickness — cables and structures
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Density   — .5 gram per cm(3)
    
	
 
    	
 
    	
 
    
	
2) Wind (no ice)
    	
 
    	
90   mph (145 kph) entire lift length (no ice)
    
	
 
    	
 
    	
 
    
	
Soil bearing capacity
    	
 
    	
Greater   than 4000 psf
    


 

The hourly capacity and line speed are the main performance criteria of the lift and the other performance specifications are dependent upon the final lift study.

 

45











 



 

Lift 17
 LPA

 

	
Lift of Equipment Supplied
    	
 
    	
Exhibit B
    


 

The following list describes all the parts and equipment supplied by Leitner-Poma and are included in the contract price.

 

Top Drive Terminal

 

Complete drive motor room:

 

·                Drive frame, galvanized steel flooring, roof support and handrails

 

·                Outdoor platform with handrails

 

·                Equipment lifting beam and trolley along the full length of terminal

 

·                Bullwheel with bullwheel retainer

 

·                Gearbox: Poma Kissling 22L (3 inputs) with oil cooler

 

Primary drive: AC electric

 

	
·      Electric motor:
    	
 
    	
AC   — Reliance or equivalent
    
	
 
    	
 
    	
 
    
	
·      Drive:
    	
 
    	
AC   Allen Bradley
    
	
 
    	
 
    	
 
    
	
·      Design power:
    	
 
    	
706   HP
    
	
 
    	
 
    	
 
    
	
·      Supplied power:
    	
 
    	
800   HP
    
	
 
    	
 
    	
 
    
	
·      Transmission:
    	
 
    	
Shaft   Coupling
    


 

Auxiliary drive: Detroit diesel engine (or equivalent), 2 @ 400 HP

 

·                  Torque converter: Twin Disc

 

·                  Remote start and automatic control

 

·                  Integrated U.L. tested fuel tank (320 gallons)

 

Evacuation drive:

 

·                  One of the 400 HP engines supplied for auxiliary will be used for evac

 

·     Guards and retention for moving mechanical parts

 

·     Leitner-Poma service brake for smooth controlled deceleration

 

·     Hydraulic emergency brakes on bullwheel with electric hydraulic pump

 

·     Main electrical cabinet with high and low voltage controls

 

·     Electrical wiring and conduit

 

	
Exhibits for   Mount Snow Resort
    	
 
    
	
March 8,   2011
    	
Quality + Simplicity = Reliability
    


 

46











 

Complete terminal mechanisms: LPA

 

·                  Anchor bolts

 

·                  Three supporting towers and crossarms with rollers: P1, P2 and P3

 

·                  Three crossarms with fixed position mechanism

 

·                  Strong terminal structure design with maintenance friendly accessibility

 

·                  LPA acceleration-deceleration assembly with solid tires and single wide v-belt

 

·                  Dual belted PTO’s with easy tension adjustment

 

·                  Rear turnaround with tire and bevel gear transmission—Poma Patent

 

·                  Dual speed cadencing system

 

·                  Lexan covers for V-belt and bevel gear transmissions

 

·                  All electrical low voltage monitoring and anti-collision system with 18 zones

 

·                  Electric wiring and conduit

 

·                  Wood underfloor

 

Full-size terminal roof:

 

·                  Complete terminal enclosure — 73 ft. overall length

 

·                  Lexan tinted windows

 

·                  Wooden terminal underskin

 

·                  Insulated roof and siding

 

·                  Electric heat, light and wiring

 

·                  Galvanized stair access to terminal enclosure inclined at 20°

 

·                  Ventilation at each end of station

 

·                  Roof access for easy snow removal to avoid dripping and ice falls

 

·                  Chair path brushes

 

Operators House

 

·                  Size: 10 x 14 ft

 

·                  Electric heat, lights and distribution panels

 

47











 

Line

 

·                  Anchor bolts cages

 

·                  25 tubular towers with crossarms and lifting gantries rated for fully loaded cable

 

·                  Galvanized catwalks with handrails on all crossarms

 

·                  Galvanized Pomapasses for all sheave trains

 

·                  Galvanized steel ladders with ski tip guards

 

·                  Radial acceleration does not exceed 2.45 m/sec(2)

 

·                  Ladder fall protection

 

Sheave trains

 

·                  50 Leitner-Poma Model 450 Wide support and compression sheaves

 

·                  Sheave trains: Rubber brushed sheave rockers for low maintenance and smooth, quiet ride

 

·                  17.7” diameter sheaves with continuous loop Semperit liners

 

·                  Sealed 6307 high speed bearings

 

·                  Steel sheave train rockers

 

·                  Aluminum sheave wheels

 

·                  Snap ring only on inside of sheave; outside has reinforced flange

 

·                  Inside derail “Ts” and outside steel cast cable catchers

 

Haul rope

 

·                  48 mm diameter wire rope, 15,180 feet supplied

 

·                  Solid core

 

·                  Right lang lay

 

Carriers (design quantity)

 

·                  102 six place bubble chairs, super-comfort model with bench padded seat, and full one piece back cushions

 

·                  102 Leitner-Poma Automatic grips with hangers

 

·                  6 spare bubbles with opening and closing mechanisms

 

·                  1 complete work platform with grip and hanger

 

48









 

Bottom Return Terminal

 

Complete return terminal room:

 

·                  Return frame, galvanized steel flooring, roof supports and handrails

 

·                  Outdoor platform with handrails

 

·                  Return bullwheel with bullwheel retainer

 

Complete terminal mechanisms: LPA

 

·                  Anchor bolts

 

·                  Three supporting towers and crossarms with rollers: P1, P2 and P3

 

·                  Three crossarms with fixed position mechanism

 

·                  Strong terminal design with maintenance friendly accessibility

 

·                  LPA acceleration/deceleration assembly with solid tires and single wide v-belt Dual belted PTO’s with easy tension adjustment

 

·                  Rear turnaround with tire and bevel gear transmission-Poma Patent

 

·                  Lexan covers for V-belt and bevel gear transmission

 

·                  All electrical low voltage monitoring and anti-collision system with 18 zones

 

·                  Electrical wiring and conduit

 

·                  Six place loading gates

 

Full-size terminal roof:

 

·                  Complete terminal enclosure — 73 ft. overall length

 

·                  Lexan tinted windows

 

·                  Wooden terminal underskin

 

·                  Insulated roof and siding

 

·                  Electric heat, light and wiring

 

·                  Galvanized stair access to terminal enclosure inclined at 20°

 

·                  Grip maintenance work area

 

·                  Chair path brushes

 

·                  Roof access for easy snow removal

 

·                  Insulated roofing and siding

 

49











 

Operators House

 

·                  Size: 10 x 12 ft

 

·                  Electric heat, lights and distribution panels

 

Tension

 

·                  Active hydraulic tensioning with two 11.5 ft. long rams with automatic electric pump unit at Bottom terminal

 

Parking and Maintenance Rails

 

·                  100% parking for 102 six place bubble chairs with automatic gates at Bottom Terminal. Mount Snow to provide parking enclosure.

 

Safety System

 

·                  Fault screen display and function keys

 

·                  All lift functions are monitored and recorded on a 15” screen display

 

·                  Individual tower fault locator system

 

·                  Single Cable position monitors and brittle bar circuit

 

·                  Fault annunciator display and by-pass system

 

·                  Cadence fault synoptics and test system

 

·                  Terminal safety switches

 

·                  All proximity switches are constantly monitored and only require annual physical check

 

·                  Deceleration rate, time and distance can be displayed after every stop and compared to acceptance test performance

 

·                  Tachometers for cable and motor speed

 

·                  15,180 ft. 37-pair figure-8 3/8 messenger communications cable and 7,590 ft. of 12 conductor single mode fiber optic cable (6 conductor available to customer)

 

·                  Two track end safety gates with stands

 

·                  Two wind speed and direction monitoring systems

 

·                  Grip force monitoring at the arrival side of each terminal, in the spring extension area

 

50











 

Prewired Control Stations

 

·                  Main control desk with synoptics in drive operator house

 

·                  Control station in drive terminal motor room

 

·                  Control pedestal in loading area

 

·                  Control station in return operator house

 

·                  Control station on outside of return operator house

 

·                  Control station in return terminal room

 

·                  Sound powered telephones at control stations with headset in motor room

 

·                  Batteries are charged with Newmar regulated chargers

 

Special Tools (included)

 

·                  Tool Cabinet with engraved hand tool set

 

·                  Sheave Compression tool for 450/550 model sheaves

 

·                  Grip Depressing tool

 

·                  Grip Force Calibrator

 

·                  Grip Slip Test Tool

 

·                  Grip Mandrel

 

·                  Brake Test Sling

 

·                  Hydraulic Belt Tensioner

 

·                  Crossarm Wire Rope Assembly

 

Spare Parts (included)

 

·                  Recommended stock of spare parts for $20,000 US, spare parts shipped 60 days after receipt of customer approved list.

 

51











 

Component Finishes

 

	
·
    	
Chairs:
    	
 
    	
Galvanized**
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Hangers:
    	
 
    	
Galvanized**
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Line   Crossarms:
    	
 
    	
Galvanized**
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Lifting   gantries:
    	
 
    	
Galvanized**
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Sheave   assemblies:
    	
 
    	
Galvanized
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Sheave   Train Pomapasses:
    	
 
    	
Galvanized
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Line   towers:
    	
 
    	
Galvanized**
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Cable:
    	
 
    	
Galvanized
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Terminal   Crossarms:
    	
 
    	
Galvanized
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Terminal   towers:
    	
 
    	
Galvanized**
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Terminal   enclosures:
    	
 
    	
Industrial   Enamel Paint
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Operator   houses:
    	
 
    	
Industrial   Enamel Paint
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
Grips:
    	
 
    	
Flame   spray
    


 

Estimated concrete volume

 

·                  Drive terminal: 120 cubic yards, maximum height 8 ft. above grade

 

·                  Line towers: 285 cubic yards

 

·                  Return terminal: 80 cubic yards, maximum height 8 ft. above grade

 

Concrete volumes that vary from above amounts may result in change orders that affect price.

 




**          Please note when galvanized options are selected the appearance may vary due to chemistry of steel.

 

52











 



 

	
Lift 17
   LPA
    	
 
    	
Exhibit C
    
	
 
    	
 
    	
 
    
	
Leitner-Poma Services and Responsibilities
    	
 
    	
 
    


 

Leitner-Poma’s price includes the following:

 

1.              Accurate initial ground survey profile of the lift line (if necessary).

 

2.              All necessary technical information about the Lift for permit applications.

 

3.              Complete engineering study of the lift.

 

4.              All mechanical subassembly and assembly drawings and all electrical schematics necessary for installation and maintenance.

 

5.              Design engineering certification to meet or exceed ANSI B77.1 2006.

 

6.              Two operation and maintenance manuals.

 

7.              Construction insurance for the Work.

 

8.              Lay out and staking of terminal and tower foundation holes.

 

9.              Excavation and backfill to rough grade by excavator on all terminal foundation holes.

 

10.       Excavation and backfill to rough grade by excavator or by hand if required on all tower foundation holes.

 

11.       Installation of anchor bolts and reinforcing steel.

 

12.       Installation and supply of concrete for top and bottom terminal foundations by land.

 

13.       Installation and supply of concrete for the line tower foundations by land or by helicopter where necessary.

 

14.       Factory preassembly, pre-wiring and adjustment of acceleration/deceleration and rear turnaround mechanism.

 

15.       Factory preassembly, pre-wiring and adjustment of drive, tension and cadencing mechanisms.

 

16.       Installation of top and bottom terminals by crane.

 

17.       Installation of line towers by crane or by helicopter where necessary.

 

18.       If solid core rope is selected, installation and splicing of haul rope including supply of splicer if re-splice is necessary within first operating season.

 

19.       Installation of communications line.

 

20.       Supply and install necessary cabling and conduits from the service entrance panel boards located on the operator buildings to terminals.

 

21.       Installation of carriers.

 

22.       As-built survey of the line.

 

23.       Construction engineering certification.

 

24.       Adjustment and start up of the lift.

 

	
Exhibits for Mount Snow Resort
    	
 
    	
 
    
	
March 8, 2011
    	
 
    	
Quality + Simplicity = Reliability
    


 

53











 

25.       Acceptance test supervision.

 

26.       On site technical assistance for 7 days after load test, lodging supplied by customer.

 

27.       First year inspection of the complete installation.

 

54











 



 

	
Lift 17
   LPA
    	
 
    	
Exhibit D
    
	
 
    	
 
    	
 
    
	
Purchaser’s Services and Responsibilities
    	
 
    	
 
    


 

The following conditions and services are supplied by the Purchaser. All the following conditions and services are excluded from the Leitner-Poma supplies and Contract Price.

 

1.              Removal of existing structure, if any before May 1, 2011.

 

2.              Soil engineering if necessary and additional construction costs if soil pressure is lower than 4000 PSF.

 

3.              Drainage where necessary to be completed 30 days before acceptance test.

 

4.              Preliminary clearing of the lift line to allow accurate ground survey profile before May 1, 2011.

 

5.              Final clearing of the lift line as required by code for final tower location staking.

 

6.              Grading of lift terminal areas as required by design (especially; maze, loading and unloading ramps.) Ramp areas must be completed 30 days prior to acceptance test and provisions made for muddy areas.

 

7.              Sediment fencing for excavations.

 

8.              Leitner-Poma supplied lift house: Supply and install necessary cabling and conduits to the Leitner-Poma supplied service entrance panel boards located on the operator buildings. Provide all electrical permits and qualified personnel to install this equipment, and if required by governing jurisdiction all special inspection costs such as ground fault testing for equipment, U.L. Certification. Lift house must be complete 30 days before load test.

 

9.              Main power (480 VAC, 3 phase) with main disconnect at drive and return operator house for final adjustment 30 days prior to Acceptance Test.

 

10.       Five laborers to work with splicer.

 

11.       One of purchaser’s electricians will work with Leitner-Poma at the site for wiring, adjustment and test of the electrical lift components, 40 hours a week, during the last three weeks before load test.

 

12.       Ballast, labor for the load test, and adequate electric power when required.

 

13.       Base parking lot and access for material storage and lift construction staging and assembly.

 

14.       Any fire protection required by appropriate regulatory agencies.

 

	
Exhibits for Mount Snow Resort
    	
 
    	
 
    
	
March 8, 2011
    	
 
    	
Quality + Simplicity = Reliability
    


 

55











 

15.       Obtaining of all construction permits and approvals necessary in connection with the Lift and the Work.

 

16.       Adequate land access to top and bottom terminal from June 1 until completion of project.

 

17.       Re-landscaping and re-vegetation.

 

56









 



 

	
Lift 17
    	
 
    
	
LPA
    	
Exhibit E
    


 

Payment Schedule

 

·                  Five percent (5%), Three Hundred Sixty Six Thousand, One Hundred Ninety Two Dollars, ($366,192) is due and payable on signing of the Agreement

 

·                  Fifteen percent (15%), One Million, Ninety Eight Thousand, Five Hundred Seventy Four Dollars, ($1,098,574) is due and payable on approval of the design profile by the Purchaser

 

·                  Twenty percent (20%), One Million, Four Hundred Sixty Four Thousand, Seven Hundred Sixty Six Dollars ($1,464,766) is due and payable on completion of the foundations

 

·                  Twenty percent (20%), One Million, Four Hundred Sixty Four Thousand, Seven Hundred Sixty Six Dollars ($1,464,766) is due and payable on Delivery of the towers, crossarms and line machinery

 

·                  Fifteen percent (15%) One Million, Ninety Eight Thousand, Five Hundred Seventy Five Dollars, ($1,098,575) is due and payable on Delivery of the drive and return, system components (primary drive, auxiliary drive, gear reducer, tension system)

 

·                  Fifteen percent (15%), One Million, Ninety Eight Thousand, Five Hundred Seventy Four Dollars, ($1,098,574) is due and payable on Delivery of drive and return terminal mechanisms

 

·                  Five percent (5%), Three Hundred Sixty Six Thousand, One Hundred Ninety Two Dollars ($366,192) is due and payable on Delivery of carrier components

 

·                  Five percent (5%), Three Hundred Sixty Six Thousand, One Hundred Ninety One Dollars ($366,191) is due and payable upon execution of the Certificate of Substantial Completion.

 

	
Exhibits for   Mount Snow Resort
    	
 
    
	
March 8,   2011
    	
Quality + Simplicity = Reliability
    


 

57











 



 

	
Lift 17
    	
 
    
	
LPA
    	
Exhibit F
    


 

Equipment Supplied for Yankee Clipper

 

The following Equipment and Responsibilities are included with this Agreement:

 

·                  172 Quad chairs with padded seat and back cushions, safety bails with footrest and special hanger including refurbishment of chair heads to insure proper bolt fit in new hangers

 

Mount Snow is responsible for removal and disposal of existing chairs. Mount Snow is responsible for the removal of existing chair heads and shipping them to Grand Junction, CO to refurbish and install in new hanger. Mount Snow is responsible for assembly and installation of new chairs

 

·                  Enclosure for Yankee Clipper including equipment, engineering, labor, travel expenses and rental equipment.

 

Mount Snow is responsible for heat and lights and inside walkways

 

·                  Six 1-4-1 Sheave Assemblies

 

Mount Snow is responsible for installation.

 

·                  Mount Snow is responsible for shipping cost of the above items.

 

It is expressly understood that L-POA shall have no responsibility or liability whatsoever for the failure of any of the components of the existing lift that were not supplied by L-POA. It is further understood that the integration of new L-POA equipment into the existing lift equipment is the decision of the Purchaser alone.

 

The Purchaser agrees to indemnify and hold harmless L-POA from any claims arising from the failure of the existing lift equipment that was not supplied by L-POA and from any resultant personal injury or property damage, including damages caused by inaccuracy of any materials, information and the like provided by the Purchaser with respect to the existing lift equipment not supplied by L-POA

 

L-POA will warranty and be liable only for L-POA equipment, and claims arising from this equipment, provided that any lift failure and resulting claim is caused solely by a defect in the L-POA equipment.

 

	
Exhibits for   Mount Snow Resort
    	
 
    
	
March 8,   2011
    	
Quality + Simplicity = Reliability
    


 

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Certificate of Substantial Completion

 

Exhibit G

 

	
Contract for:
    	
The   sale of Equipment, Installation and Services
    
	
Contract Date:
    	
March 8   2011
    


 

This Certificate of Substantial Completion applies to all Work under the Contract Documents or to the following specified parts thereof:

 

Lift: Lift 17

 

Mount Snow Resort (Purchaser) and Leitner-Poma of America, Inc. (Seller)

 

The Work to which this Certificate applies has been inspected by authorized representatives of the Purchaser and Seller, and that Work is hereby declared to be substantially complete in accordance with the Contract Documents and approved for public operation by the governing authorities.

 

Date of Substantial Completion: November 9, 2011

 

A Deficiency List of items to be completed or corrected is attached hereto. The items on this Deficiencies List shall be completed or corrected by Seller within the dates specified for each item, and for an accounting event shall be valued at the reasonable amount specified. Any item not specifically noted on the Deficiency List at the above date of Substantial Completion shall fall under the rectifications provided for under Warranty Conditions, as more particularly described in the Contract Documents.

 

This certificate does not constitute an acceptance of Work not in accordance with the Contract Documents nor is it a release of Seller’s obligation to complete the Work in accordance with the Contract Documents.

 

Seller accepts this Certificate of Substantial Completion on day of , 2011.

 

Leitner-Poma of America, Inc. by

 

Purchaser accepts this Certificate of Substantial Completion on day of , 2011.

 

Purchaser by

 

Quality + Simplicity = Reliability

 

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Punch List

 

Exhibit H

 

Date of Substantial Completion:

 

Compiled and Initialed by:

for Purchaser

 

Compiled and Initialed by:

for Contractor

 

	
Punch Item
    	
 
    	
To Be Completed By
    	
 
    	
Reasonable Value
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

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Milestones

 

Exhibit I

 

The following are milestones for Lift: 17

 

If Purchaser does not achieve one or more of the milestones by the applicable date, L-POA cost of its Work may increase and/or L-POA may be delayed in achieving the Scheduled Completion Date. This may result in a change order increasing the Contract Price and/or moving back the Scheduled Completion Date.

 

Purchaser Milestones:

 

	
·
    	
Color   Sheet Approval
    	
April 22,   2011
    
	
 
    	
 
    	
 
    
	
·
    	
Obtain   Permits and authorization to allow construction to begin
    	
May 1,   2011
    
	
 
    	
 
    	
 
    
	
·
    	
Profile   Approval (within 3-5 days of receipt)
    	
May 16,   2011
    
	
 
    	
 
    	
 
    
	
·
    	
Lift   House Layouts Approval
    	
June 1,   2011
    
	
 
    	
 
    	
 
    
	
·
    	
Power   supplied to all Terminal Sites
    	
October 1,   2011
    
	
 
    	
 
    	
 
    
	
·
    	
Terminal   and Station grading completed
    	
After   completion of terminal foundations
    
	
 
    	
 
    	
 
    
	
·
    	
Load   and Unload platform grading completed
    	
After   structures are in place
    
	
 
    	
 
    	
 
    
	
·
    	
Drive Lift House   Completed
    	
N/A
    
	
 
    	
 
    	
 
    
	
·
    	
Return Lift House   Completed
    	
N/A
    
	
 
    	
 
    	
 
    
	
·
    	
Purchaser   agrees to provide to L-POA a list of load test attendees (minimum of 1   person) 6 weeks before scheduled load test.
    	
 
    
	
 
    	
 
    	
 
    
	
·
    	
Load   test Attendees (To be decided 6 weeks prior to load test date):
    	
 
    


 

1 Minimum Required attendant from .

 

	
 
    	
 
    	
 
    
	
(Purchaser   Representative)
    	
 
    	
(Purchaser Representative)
    


 

Leitner-Poma Milestones:

 

	
·
    	
Survey   Start (1 week)
    	
May 1,   2011
    
	
 
    	
 
    	
 
    
	
·
    	
Submit   preliminary design package to authority having jurisdiction
    	
May 1,   2011
    
	
 
    	
 
    	
 
    
	
·
    	
Complete   Profile
    	
May 15,   2011
    
	
 
    	
 
    	
 
    
	
·
    	
Begin   construction activities
    	
May 16,   2011
    
	
 
    	
 
    	
 
    
	
·
    	
Start   Excavation
    	
July 1,   2011
    


 

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Enclosure Plan

 

Exhibit J

 

Leitner-Poma of America to supply and install enclosure for the Grand Summit Express, reference print #41011 including roof, windows and underskin.

 

Quality + Simplicity = Reliability

 

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Price Calculation

 

Exhibit K

 

The following prices include freight on board to West Dover, VT. Each price excludes sales and local tax.

 

Lift 17

 

	
The total amount of Leitner-Poma supplies   including Equipment, Engineering and Services as described in Exhibits A, B,   C, D, and F 
    	
 
    	
$
    	
6,880,000.00
    	
 
    


 

Options:

 

	
·  AC Drive —   800 hp Addition
    	
 
    	
$
    	
84,400.00
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
·  Lift   Houses Addition
    	
 
    	
$
    	
102,800.00
    	
 
    
	
Drive — Size: 10 x   14 — ligths and heat Concrete foundation
    	
 
    	
 
    	
 
    
	
Return — Size: 10 x   12 — lights and heat Concrete foundation
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
·  100%   parking rails for 102 chairs Addition  
   Parking enclosure by Area
    	
 
    	
$
    	
256,630.00
    	
 
    


 

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Leitner-Poma Warranties 2011

 

Exhibit L

 

The following warranties are included:

 

1.              The lift design and engineering, for the codes that are applicable at the time of original installation, are warranted for the life of the lift.

 

2.              The lift equipment manufactured by Leitner-Poma and its subcontractors is warranted against defects in workmanship and materials as follows:

 

	
·
    	
Poma   Kissling Gearbox (excluding seals)
    	
 
    	
5   years or 7,500 hours
    
	
 
    	
 
    	
 
    	
 
    
	
·
    	
All   other Leitner-Poma lift components
    	
 
    	
2   years or 3,000 hours, which ever occurs first
    


 

3.              The accessory equipment supplied by other manufacturers are warranted against defects in workmanship and materials according to the pass-through warranties of each manufacturer at the time of the original installation.

 

	
 
    	
 
    	
Typical
    	
 
    
	
Electric motors 
    	
 
    	
1   year
    	
 
    
	
Electric controls 
    	
 
    	
1   year
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Diesel engines, transmissions 
    	
 
    	
1   year
    	
 
    
	
Shafts 
    	
 
    	
1   year
    	
 
    
	
Belts 
    	
 
    	
1   year
    	
 
    
	
Tires, solid 
    	
 
    	
2   years
    	
 
    
	
Haul rope 
    	
 
    	
5   years
    	
 
    


 

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