HomeMy WebLinkAbout2024-35 A Resolution Approving the Second Amended and Restated Development Agreement between the Town of Vail and Triumph Timber Ridge LLC Regarding the Development of Timber Ridge VillageResolution 35, Series of 2024
RESOLUTION NO. 35
Series of 2024
A RESOLUTION APPROVING THE SECOND AMENDED AND RESTATED
DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF VAIL AND TRIUMPH
TIMBER RIDGE, LLC REGARDING THE DEVELOPMENT OF TIMBER RIDGE
VILLAGE
WHEREAS, on June 16, 2023, the Town and Triumph executed a Development
Agreement for the redevelopment of the Timber Ridge Apartments (the "Prior
Agreement");
WHEREAS, on May 7, 2024, the Town and Triumph executed an amended and
restated development agreement for the redevelopment of the Timber Ridge
Apartments (the “First Amended Agreement”); and
WHEREAS, the parties now wish to amend the First Amended Agreement to
elaborate on the terms of the development process and the parameters of the
development, as set forth in the Second Amended and Restated Development
Agreement, attached hereto as Exhibit A and incorporated herein by this reference (the
“Amended Agreement”).
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO:
Section 1. The Town Council hereby approves the Second Amended Agreement
and authorizes the Town Manager to execute the Second Amended Agreement on
behalf of the Town in substantially the same form as attached hereto as Exhibit A, and
in a form approved by the Town Attorney.
Section 2. This Resolution shall become effective immediately upon its passage.
INTRODUCED, READ, APPROVED AND ADOPTED this 16th day of July, 2024.
Travis Coggin, Mayor
ATTEST:
Stephanie Kauffman, Town Clerk
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SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT
(the "Agreement") is made this ___ day of _____________, 2024 (the "Effective Date"),
by and between the Town of Vail, a Colorado home rule municipality with an address of
75 South Frontage Road, Vail, CO 81657 (the "Town"), and Triumph Timber Ridge, LLC,
a Delaware limited liability company with an address of 105 Edwards Village Boulevard,
C201, Edwards, CO 81632 ("Developer") (each a "Party" and collectively the "Parties").
WHEREAS, the Town owns the real property described in Exhibit A, attached
hereto and incorporated herein by this reference (the "Property");
WHEREAS, the Town wishes to convey the Property to Developer for the
redevelopment of the Property for deed-restricted employee housing (the
"Development");
WHEREAS, the Parties wish to elaborate on the terms of the Development process
and parameters of the Development, with the mutual understanding that the Development
will be at Developer's sole risk, other than the express obligations of the Town set forth
in this Agreement;
WHEREAS, on June 16, 2023, the Parties executed a Development Agreement
for the Development (the "Prior Agreement"),
WHEREAS, on May 15, 2024, the Parties executed an Amended and Restated
Development Agreement for the Development, which replaced the Prior Agreement; and
WHEREAS, this Agreement is intended to replace and supersede the Amended
and Restated Agreement in all respects;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the sufficiency of which is mutually acknowledged, the
Parties agree as follows:
1. General Terms of Development.
a. Design and Layout. The Development will consist of: 294 residential
dwelling units (each a "Unit") in 7 individual buildings, with a total of 555 bedrooms; a
minimum of 346 enclosed, surface and on-street parking spaces; and associated
landscaping, lighting, driveway and walkway improvements. The total number of Units
will be comprised of 58 studio Units, 74 one-bedroom Units, 79 two-bedroom Units, 67
three-bedroom Units, and 16 four-bedroom Units.
b.Plans. The Guaranteed Maximum Price ("GMP") plans for the Development
are attached hereto as Exhibit B and incorporated herein by this reference (the "Plans").
The Parties anticipate that the Plans may be revised to finalize permitting and
construction documents, with approval of both Parties, without the necessity of an
amendment to this Agreement.
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c. Development Costs. The total estimated cost for completion of the
Development is set forth in Exhibit C, attached hereto and incorporated herein by this
reference, as amended by mutual agreement of the Parties (the "Development Costs").
2. Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:
a.Building Permit:includes a building permit, asbestos abatement permit,
demolition permit or grading and foundation permit.
b. Cash Contribution: the amount of $38,614,769, to be paid by the Town
toward the Development.
c. Deposit Funds. the earnest money deposits collected by Developer under
Developer's contracts with prospective business buyers to purchase Units, in the
expected budgeted amount of $10,000,000, which shall be used by Developer to
complete the Development.
d. Deposit Shortfall: any shortfall in the amount of Deposit Funds.
e. Development Plan: the development plan approved by the Town pursuant
to the Vail Town Code, with application numbers DRB23-0281, DRB23-0281.001 and
DRB23-0281.002.
f. Financial Contribution: the total amount of the Cash Contribution and the
Transit Stop Costs, which equals $40,523,046.
g. Land Contribution: $10,446,722, which equals the value of the land and
related entitlements for the Development.
h. Legal Challenge: a legal proceeding filed by a third party unrelated to the
Parties challenging this Agreement or the zoning, platting or other development approval,
an appeal of any zoning, platting or other development approval, or a petition for
referendum to repeal any ordinance approving a development application.
i. Lender: FirstBank, a Colorado state banking corporation, or its lawful
successors or assigns.
j. Loan: the amount of construction financing for the Development from
Lender in an amount not to exceed $115,000,000.
k. Net Sales Proceeds: with respect to each Unit, the gross sale price of the
Unit less: (i) the amount required to be paid upon the sale with respect to any loans
payable by Developer related to the Development and (ii) customary costs of sale of the
Unit, including without limitation prepaid or prorated items, title company charges, closing
costs, and other appropriate fees and expenses.
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l. Reimbursement: $49,061,491, which equals the Total Contribution less the
Transit Stop Costs.
m. Reversionary Interest: the interest of the Town that will be retained at the
closing of the Loan, which shall allow the Town, at its option, to cause title to the Property
to revert to the Town if Developer defaults.
n. Total Contribution: $50,969,768, which equals the Financial Contribution
plus the Land Contribution.
o. Transit Stop Costs: $1,908,277, which is the total actual cost for
construction of the Transit Stop Unit.
p. Tri-Party Agreement: the agreement among Lender, Developer and the
Town regarding the Financial Contribution, which will be executed as part of the closing
of the Loan.
3. Obligations of the Town.
a. Conveyance. At the closing of the Loan, the Town shall convey the Property
to Developer, by special warranty deed subject to statutory exceptions and also subject
to the Reversionary Interest. Developer shall provide the Town with at least 7 days'
advance written notice of the date of such closing.
b. Taxes. Unless the Development is otherwise exempted, the Town shall
refund 100% of all amounts paid by Developer for the Town's construction and building
materials use tax applicable to the Development, which refund shall be paid by the Town
to Developer within 7 days after Developer's payment.
c. Deed Restrictions. Currently, the entire Property is subject to an existing
deed restriction, dated July 17, 2003 and recorded with Eagle County at Reception No.
840811 (the "Existing Deed Restriction"). Upon completion of construction and prior to a
sale of any portion of the Property by Developer, the Parties shall replace the Existing
Deed Restriction with new, separate deed restrictions against of each of the newly
established condominium Units in the Development. The new deed restriction shall be in
the form attached hereto as Exhibit D and incorporated herein by this reference (the
"New Deed Restriction").
d. Contributions. Expressly subject to Section 14.h. hereof, the Town shall
fund the Total Contribution before Lender funds the Loan.
e. Payment. On a monthly basis, on or before the 5th day of the month, the
Town shall make payments of the Financial Contribution to Developer's construction draw
account with Lender, until the maximum amount of Financial Contribution has been paid
to Developer's construction draw account. The Town shall authorize disbursement of all
undisputed amounts within 14 days after receipt of the disbursement request. The Town
acknowledges that failure to timely authorize disbursement of the Financial Contribution
or any installment thereof may cause a default by Developer under its construction
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contracts and may jeopardize the timely completion of the Development. Therefore, time
is of the essence in the authorization of disbursement of the Financial Contribution. If any
disbursement is not authorized by the Town in a timely manner, the Town shall pay a late
fee in the amount of 10% of the requested disbursement, and the Town shall be
responsible for any interest or other costs incurred by Developer as a result of the
untimely authorization of disbursement.
4. Developer's General Obligations.
a. Development. Subject to the terms and conditions of this Agreement and
the obligations of the Town hereunder, Developer shall be solely responsible for ensuring
that the Development is constructed in compliance with this Agreement, the Plans and all
applicable law, including without limitation design, engineering, testing, entitlement, and
horizontal and vertical construction, at Developer's sole risk.
b. Development Plan. Changes to the Development Plan shall be governed
by the Vail Town Code.
c. Applications, Drawings and Permits. Developer shall prepare all
applications, design drawings and plans for the Development, and shall be responsible
for obtaining all required Building Permits and other permits for the Development, at
Developer's own expense.
d. Professional Responsibility. Developer hereby warrants that it is qualified
to assume the responsibilities and render the services described herein and has all
requisite corporate authority and professional licenses in good standing, required by law.
The work performed by Developer shall be in accordance with generally accepted
professional practices and the level of competency presently maintained by other
practicing professional firms in the same or similar type of work in the applicable
community. The work and services to be performed by Developer hereunder shall be
done in compliance with applicable laws, ordinances, rules and regulations. The Town's
review, approval or acceptance of, or payment for any services shall not be construed to
operate as a waiver of any rights under this Agreement or of any cause of action arising
out of the performance of this Agreement.
e. Applicable Law. In connection with the Development, Developer shall
comply with all applicable law, including without limitation all current and future federal,
state and local statutes, regulations, ordinances and rules relating to: the emission,
discharge, release or threatened release of a Hazardous Material into the air, surface
water, groundwater or land; the manufacturing, processing, use, generation, treatment,
storage, disposal, transportation, handling, removal, remediation or investigation of a
Hazardous Material; and the protection of human health, safety or the indoor or outdoor
environmental, including (without limitation) the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"); the
Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. ("RCRA"); the Toxic
Substances Control Act, 15 U.S.C. § 2601, et seq.; the Clean Water Act, 33 U.S.C. §
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1251, et seq.; the Clean Air Act; the Federal Water Pollution Control Act; the Occupational
Safety and Health Act; all applicable Colorado environmental laws; and all other federal,
state or local laws and regulations relating to, or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, now or at
any time hereafter in effect.
f. Books and Records. Developer shall maintain all books and records related
to the Development for public inspection. Upon request by the Town or its agent,
Developer shall provide evidence of all costs and expenses related to the Development.
g. Financing Contingency. Developer shall not be entitled to close on the Loan
unless and until Developer has produced to the Town fully executed purchase and sale
agreements for Units totaling at least $116,000,000, based on the values set forth in
Exhibit G, attached hereto and incorporated by this reference. The total of $116,000,000
may include the Town Units (defined below). As set forth in the Tri-Party Agreement,
Developer has caused Lender to provide the Town with the right to cure any default by
Developer under the Loan.
h. Reimbursement. As provided below, Developer shall reimburse the Town
for the Reimbursement.
i. Deposit Shortfall. In the event of any Deposit Shortfall, Developer shall
provide funds to cover the Deposit Shortfall.
5. Construction.
a. Schedule. Developer shall commence construction of the Development
within 30 days after the closing of the Loan, and thereafter manage the schedule of
construction of the Development and complete and deliver the Development to the Town
in compliance with the schedule attached hereto as Exhibit E and incorporated herein by
this reference (the "Schedule").
b. General Contractor. The construction contract with the general contractor
has been approved by the Town. Developer is authorized to select a replacement general
contractor, if necessary, at Developer’s discretion, but only after consultation with the
Town. Any other material changes to the construction contract shall require the Town’s
prior written approval.
c. Warranty. Developer shall cause the general contractor to provide a one-
year warranty to the buyers of the Units, commencing on the date of closing of the sale
of each Unit. If the closing of the sale of a Unit occurs more than 90 days after issuance
of a certificate of occupancy for such Unit, the one-year warranty shall be reduced one
day for each day that closing occurs after such 90-day period. During the warranty period,
Developer shall manage any work performed by the general contractor or any
subcontractor under the warranty.
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6. Public Improvements.
a.Construction.
i. Developer shall cause to be constructed all required public improvements
associated with the Development and approved by the Town, as depicted on the
Plans (the "Public Improvements"). The Public Improvements are expected to
include sidewalks and stairs, the Transit Stop, street lights and fixtures, and
landscaping within the public right-of-way, and South Frontage Road traffic lane
improvements, including drainage.
ii. The Town may make reasonable engineering observations. Observation,
acquiescence in or approval by any engineering inspector of the construction of
physical facilities at any particular time shall not constitute the approval by the
Town of any portion of such Improvements.
iii. Developer shall provide all necessary engineering designs, surveys, field
surveys and incidental services related to the construction of the Public
Improvements, including reproducible "as-built" drawings certified accurate by a
professional engineer registered in the State of Colorado.
iv. Developer shall be fully responsible for the prompt repair of any property
which may be damaged during construction of the Public Improvements, whether
such property is public or private. To the extent any construction traffic damages
any Town streets, Developer shall be responsible for repair of such damage or the
reconstruction of such streets, as the Town determines appropriate.
v. Developer shall not be considered the agent of the Town in the construction,
erection or operation of any Public Improvements.
b. Delivery and Acceptance.
i. Upon completion of any Public Improvements, Developer shall submit to the
Town written notice of completion. Within 14 days after the notice, the Town shall
either: issue written notice to Developer of completion and acceptance of the
Improvements; or issue written notice to Developer that the Town does not accept
all or any portion of the Improvements, accompanied by a detailed description of
the issues that must be remedied for the Town to accept the Improvements. The
Town's failure to issue either notice shall be deemed the Town's acceptance of the
Improvements.
ii. Upon completion of any remedial work, Developer shall again give notice
and the procedures described in this Section will be repeated with respect to such
items.
iii. Acceptance of Improvements is the binding acknowledgement of the Town
that the improvements accepted are complete and Developer has satisfied its
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obligations under this Agreement with respect to the construction of same, subject
only to the warranty provisions of this Agreement.
c. Warranty. Developer warrants and guarantees that, for 2 years from the
date of acceptance, each Public Improvement: is not defective; will not fail; has been
constructed and installed in a workmanlike manner suitable for its intended uses; and has
been constructed in compliance with all applicable law and all applicable land use
approvals.
d.Transit Stop. The transit stop shall be a separate common interest
ownership Unit (the "Transit Stop Unit"). Upon completion, provided that the Town is not
in default of this Agreement, Developer shall convey the Transit Stop Unit to the Town by
special warranty deed, at no cost.
7. Sale of Units.
a. Subdivision. Developer shall be responsible for the preparation and filing
of all required applications to subdivide the Property so as to enable the Units to be sold
in compliance with the Plans. The subdivision will be subject to the Existing Deed
Restriction, which shall be replaced with the New Deed Restriction at the closing of the
sale of each Unit. The New Deed Restriction shall be acknowledged by a Transfer of
Deed Restriction executed between Developer and the purchaser of the Unit on the
Town’s then-current form.
b. Common Interest Community. Developer shall be responsible, at
Developer's sole expense, for the drafting and recordation of all necessary documents to
create a common interest community on the Property. The details of the common interest
community and the final documents establishing such community are subject to the
Town's approval. The Transit Stop Unit shall not be subject to association dues, and the
common interest community association shall not be subject to capital maintenance
expenses and operational costs attributable to the Transit Stop Unit. Developer shall be
engaged for professional management of the common interest community association
and operation of the Development (either through an independent third party or an affiliate
or agent of Developer) on commercially reasonable terms.
c. Marketing and Contracts. Developer shall be responsible for all matters
related to the marketing for sale, contracting for sale, and all other matters related to the
sale of the Units and all costs related thereto. Developer shall use the form of each
purchase and sale agreement that has been approved by the Town.
d. Town Units.
i. Developer shall sell to the Town any of the Units identified on Exhibit F
attached hereto and incorporated herein by this reference, at the prices set forth in
Exhibit F (each a "Town Unit" and collectively the "Town Units"). The Town agrees
to purchase at least $25,449,948 worth of Units. The Town shall provide written
notice to Developer of which Units the Town will purchase prior to the initial funding
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of the Loan. If the Town fails to deliver such notice prior to the initial funding of the
Loan, Developer may choose which Units will be purchased by the Town.
ii. Developer shall provide a one-year warranty on the Town Units,
commencing from the date of closing. If the closing of the sale of a Town Unit
occurs more than 90 days after issuance of a certificate of occupancy for such
Town Unit, the one-year warranty shall be reduced one day for each day that
closing occurs after such 90-day period.
iii. The provisions of this Section will be reflected in the purchase and sale
agreement between the Parties, which purchase and sale agreement shall be fully
assignable by the Town without Developer's consent.
e. Other Units. The Town shall have the right, but not the obligation, to
purchase any other Units in the Development. For any Units that are not sold and retained
by Developer, Developer may lease such Units to qualified occupants subject to the Deed
Restriction.
8. Compensation.
a. Developer Fee. For planning, staffing, managing and completing the
Development in accordance with the Plans and this Agreement, the Developer shall earn
a fee of $8,175,000 (the "Developer Fee"). The Developer Fee is budgeted in the
Development Costs and is not included in the Financial Contribution. If Developer pays
any Deposit Shortfall, the amount of Deposit Shortfall paid by Developer shall be repaid
prior to any disbursements under Subsection b. hereof.
b. Sales Proceeds.
i. In addition to the Developer Fee, following repayment of the Loan,
Developer shall retain an amount equal to 30% of the Net Sales Proceeds from
the initial sale of each Unit, and the remaining 70% shall be transferred to the Town
and applied as repayment of the Cash Contribution. This 70/30 split shall continue
until Developer has received $16,400,000 from Net Sales Proceeds and the Town
has received the total Cash Contribution. This 70/30 split shall not apply in the
case of any assignment of this Agreement, and the Town shall be entitled to 100%
of the Net Sales Proceeds, until the Town has received the total Cash Contribution.
ii. Once Developer has received $16,400,000 from Net Sales Proceeds and
the Town has received the total Cash Contribution, Developer shall transfer 100%
of Net Sales Proceeds to the Town, until the Town has received the total Land
Contribution, which means the Town will have received the total Reimbursement.
iii. Once the Town has received the total Reimbursement, Developer shall
transfer 15% of Net Sales Proceeds to the Town, and shall retain 85% of Net Sales
Proceeds.
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c. Transfer of Units. Upon the later of: (1) 90 days after the date of issuance
of a certificate of occupancy for the last completed building in the Development; or (2) the
full repayment of the Loan (the "Trigger Date"), if the Town has not received the full
amount of the Reimbursement, then Developer shall transfer Units to the Town as a credit
(the "Credit") against the remaining amount of the Reimbursement, subject to the
following conditions:
i. The closing of the transfer of the Units to the Town shall occur no later than
30 days after the Trigger Date.
ii. The amount of the Credit shall be the value of the Units being transferred,
as set forth in Exhibit G.
iii. The Town shall have the option to select the Units it wishes to accept as
Credit, until the Town has received the total Cash Contribution. Once the Town
has received the total Cash Contribution, if Developer has not received
$16,400,000 from Net Sales Proceeds, Developer may retain Units to reach the
amount of $16,400,000, using the values set forth in Exhibit G as the basis. Once
Developer has retained Units to reach the amount of $16,400,000, if any amount
of the Reimbursement remains due and owing to the Town, the Town shall accept
Units as the Credit until the total Land Contribution has been paid.
9. Term and Termination.
a. Term. This Agreement shall commence on the Effective Date, and, unless
otherwise terminated as provided herein, shall terminate 2 years after the issuance of the
final certificate of occupancy for the Development, provided that the warranty, insurance
and indemnification provisions of this Agreement shall survive its termination.
b. Termination. If, by August 21, 2024, Developer has not produced to the
Town fully executed purchase and sale agreements for Units totaling at least
$116,000,000, based on the values set forth in Exhibit G, either Party shall have the right
to terminate this Agreement upon written notice delivered to the other Party. The total of
$116,000,000 may include the value of the Town Units, up to the maximum amount of
$25,449,948. If the Agreement is terminated under this Section, the ownership of all
plans, specifications, studies, reports and other documents related to the Development
shall automatically transfer to the Town, at no cost.
10. Insurance.
a. Policies. Developer agrees to procure and maintain, at its own cost
(included in the Contract Price), a policy or policies of insurance as described on Exhibit
H, attached hereto and incorporated herein by this reference, including commercial
general liability insurance as an Owner Controlled Insurance Policy (the "OCIP"), fire and
extended coverage insurance, which during construction shall be carried in Builder’s Risk
form, and pollution insurance.
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b.Standards. Such insurance shall be in addition to any other insurance
requirements imposed by law. The coverages afforded under the policies shall not be
canceled, terminated or materially changed without at least 30 days prior written notice
to the Town. In the case of any claims-made policy, the necessary retroactive dates and
extended reporting periods shall be procured to maintain such continuous coverage. Any
insurance carried by the Town, its officers, its employees, or its contractors shall be
excess and not contributory insurance to that provided by Developer. Developer shall be
solely responsible for any deductible losses under any policy.
c. Certificates. Developer shall provide to the Town certificates of insurance
as evidence that the required policies are in full force and effect. The certificates shall
identify this Agreement.
11. Indemnification. Developer agrees to indemnify and hold harmless the Town and
its officers, insurers, volunteers, representative, agents, employees, heirs and assigns from
and against all claims, liability, damages, losses, expenses and demands, including attorney
fees, on account of injury, loss, or damage, including without limitation claims arising from
bodily injury, personal injury, sickness, disease, death, property loss or damage,
construction defect, or any other loss of any kind whatsoever, which arise out of or are in
any manner connected with this Agreement if such injury, loss, or damage is caused in
whole or in part by, the act, omission, error, professional error, mistake, negligence, or
other fault of Developer, any subcontractor of Developer, or any officer, employee,
representative, or agent of Developer, or which arise out of a worker's compensation
claim of any employee of Developer or of any employee of any subcontractor of
Developer. Developer's liability under this Section shall be to the fullest extent of, but shall
not exceed, that amount represented by the degree or percentage of negligence or fault
attributable to Developer, any subcontractor of Developer, or any officer, employee,
representative, or agent of Developer or of any subcontractor of Developer.
12. Developer Default and Remedies.
a.Default. Each of the following is a Developer default of this Agreement:
i. If Developer fails to perform any of its obligations under this Agreement and
fails to remedy the same within 30 days after Developer is given a written notice
specifying the same; provided that, if the nature of the violation is such that it
cannot reasonably be remedied within 30 days, and Developer provides evidence
to the Town that the violation cannot reasonably be remedied within 30 days, then
the violation shall be remedied as soon as reasonably practicable, but in any case,
within 120 days of the original notice of violation.
ii. If an involuntary petition is filed against Developer under a bankruptcy or
insolvency law or under the reorganization provisions of any law, or when a
receiver of Developer, or of all or substantially all of the property of Developer, is
appointed without acquiescence, and such petition or appointment is not
discharged or stayed within 90 days after the happening of such event.
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iii. If Developer makes an assignment of its property for the benefit of creditors
or files a voluntary petition under a bankruptcy or insolvency law, or seeks relief
under any other law for the benefit of debtors.
b. Remedies.
i. If a Developer default occurs, the Town shall first allow Lender to cure the
default. The Town shall provide Lender with a written notice of default, specifying
the default, and sent by first class U.S. Mail to FirstBank, attn: Nick Brinkman and
Matt Gruesbeck, 1234 West Colfax Avenue, Lakewood, CO 80215. Lender shall
have 30 days after the mailing of such notice to cure the default; provided that, if
the nature of the violation is such that it cannot reasonably be remedied within 30
days, and Lender provides evidence to the Town that the default cannot reasonably
be cured within 30 days, then the violation shall be remedied as soon as
reasonably practicable, but in any case, within 120 days of the original notice.
ii. If Lender fails to cure the default as provided above, the Town may, in its
sole discretion and without waiving any other rights under this Agreement or
available to the Town, cause construction of all or part of the Development to be
completed and recover appropriate damages from Developer.
iii. If a Developer default occurs, the ownership of all plans, specifications,
studies, reports and other documents related to the Development shall
automatically transfer to the Town, at no cost.
iv. In addition to the specific remedies set forth herein, the Town shall have all
other remedies available at law or equity, and the exercise of one remedy shall not
preclude the exercise of any other remedy, and further provided that the expiration
of this Agreement shall in no way limit the Town's legal or equitable remedies, or
the period in which such remedies may be asserted, for work negligently or
defectively performed.
c. Liquidated Damages. Because time is of the essence and delayed
performance constitutes a compensable inconvenience to the Town and its residents, the
liquidated damages established in this Section shall be enforced. The liquidated
damages provided hereunder shall not limit the Town's right to pursue other remedies
against Developer, at law or in equity, arising out of any default of Developer other than
delay. Liquidated damages may be deducted from any payment due to Developer. If the
liquidated damages exceed the amount owed to Developer, Developer shall reimburse
the Town within 30 days of notice thereof. The following liquidated damages shall apply:
for each day beyond 30 days after closing of the Loan that construction is not
commenced, Developer shall be assessed the amount of $5,000 per day.
13. Town Default and Remedies.
a. Default. The following is a Town default of this Agreement: If the Town fails
perform any of its obligations under this Agreement other than its obligation to pay the
expenses and fees of the Development and fails to remedy the same within 30 days after
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the Town is given a written notice specifying the same; provided that, if the nature of the
violation is such that it cannot reasonably be remedied within 30 days, and the Town
provides evidence to Developer that the violation cannot reasonably be remedied within
30 days, then the violation shall be remedied as soon as reasonably practicable, but in
any case, within 90 days of the original notice of violation.
b. Remedies. If a Town default occurs, Developer shall have all remedies
available at law or equity, and the exercise of one remedy shall not preclude the exercise
of any other remedy, provided that Developer shall not have the remedy of specific
performance against the Town. Without limiting the generality of the foregoing, in the
event a Town default occurs, Developer may terminate this Agreement upon notice given
to the Town, without waiving any of its rights or remedies hereunder.
c. Additional Remedy for Non-Disbursement. Subject to Section 14.h. hereof,
if any disbursement of the Financial Contribution to Developer's construction draw
account with Lender is delinquent by 25 days or more, then Developer shall have the right
to stop work on the Development and charge Town for any actual, reasonable costs
incurred by Developer and caused by the Town's nondisbursement. In addition, any time
periods for Developer’s performance under this Agreement shall be extended
cumulatively by one day for each day that work is stopped.
14. Miscellaneous.
a. Modification. This Agreement may only be modified by subsequent written
agreement of the Parties.
b. Integration. This Agreement and any attached exhibits constitute the entire
agreement between Developer and the Town, superseding all prior oral or written
communications, including the Prior Agreement.
c. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and assigns.
d. Severability. If any provision of this Agreement is determined to be void by
a court of competent jurisdiction, such determination shall not affect any other provision
hereof, and all of the other provisions shall remain in full force and effect.
e. Governing Law and Venue. This Agreement shall be governed by the laws
of the State of Colorado, and any legal action concerning the provisions hereof shall be
brought in Eagle County, Colorado.
f.Assignment. Developer may assign this Agreement to an entity formed by
Developer specifically for purposes of fulfilling its obligations under this Agreement. Other
than such initial assignment, there shall be no transfer or assignment of any of the rights
or obligations of Developer under this Agreement without the prior written approval of the
Town.
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g.Third Parties. There are no intended third-party beneficiaries to this
Agreement.
h.Contingency; No Debt. Pursuant to Article X, § 20 of the Colorado
Constitution, any financial obligations of the Town under this Agreement are specifically
contingent upon annual appropriation of funds sufficient to perform such obligations. This
Agreement shall never constitute a debt or obligation of the Town within any statutory or
constitutional provision. All obligations of Developer under this Agreement are specifically
contingent upon the Town appropriating sufficient funds.
i. No Joint Venture. Notwithstanding any provision hereof, the Town shall
never be a joint venture in any private entity or activity which participates in this
Agreement, and the Town shall never be liable or responsible for any debt or obligation
of any participant in this Agreement.
j. Independent Contractor. Developer is an independent contractor.
Notwithstanding any other provision of this Agreement, all personnel assigned by
Developer to perform work under the terms of this Agreement shall be, and remain at all
times, employees or agents of Developer for all purposes. Developer shall make no
representation that it is a Town employee for any purposes.
k. Notice. Any notice under this Agreement shall be in writing, and shall be
deemed sufficient when directly presented or sent pre-paid, first class United States Mail
to the Party at the address set forth on the first page of this Agreement.
l. Recording. This Agreement shall be recorded with the Eagle County Clerk
and Recorder. The benefits and obligations of the Parties under this Agreement shall run
with the land, and shall be binding on, and enforceable by, any subsequent holder of an
interest in the Improvements or in the Property.
m. Force Majeure. No Party shall be in breach of this Agreement if such Party's
failure to perform any of the duties under this Agreement is due to Force Majeure, which
shall be defined as the inability to undertake or perform any of the duties under this
Agreement due to acts of God, floods, fires, sabotage, terrorist attacks, strikes, riots, war,
labor disputes, pandemics or the authority and orders of government.
n. Legal Challenge. If a Legal Challenge occurs, this Agreement will remain
in full force and effect through and until the 31st day following entry of a final, non-
appealable order resolving such Legal Challenge, unless earlier terminated or modified
by a written amendment signed by the Parties. If a Legal Challenge occurs, all deadlines
and time requirements in this Agreement shall be tolled until such time as a final, non-
appealable order resolving such Legal Challenge is entered. If a Legal Challenge
successfully voids, enjoins, or otherwise invalidates this Agreement or a portion thereof,
the Parties shall cooperate to cure the legal defect in a manner that most fully implements
the intent and purpose of this Agreement; provided, however, that if the Parties do not
enter into a written agreement to cure the defect, either Party may terminate this
Agreement.
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WHEREFORE, the Parties have executed this Agreement as of the Effective Date.
TOWN OF VAIL, COLORADO
________________________________
Russell Forest, Town Manager
ATTEST:
_________________________________
Stephanie Kauffman, Town Clerk
TRIUMPH TIMBER RIDGE, LLC
_______________________________
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was subscribed, sworn to, and acknowledged before me
this ______ day of __________________, 2024, by _________________________ as
the _______________________ of Triumph Timber Ridge LLC.
My commission expires:
(S E A L) ________________________________
Notary Public
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EXHIBIT A
Legal Description of Property
LOT 1, TIMBER RIDGE SUBDIVISION ACCORDING TO THE AMENDED FINAL PLAT
RECORDED APRIL 9, 2024 UNDER RECEPTION NO. 202403760, COUNTY OF
EAGLE, STATE OF COLORADO.
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EXHIBIT
5/13/2024 C
Development Costs - Timber Ridge Village
Costs:
Total Town Financial Contribution $50,969,768
includes Land Value, Town
Contribution, and Transit
Stop Cost
Land Value $10,446,722
Land value, loan repayment,
CDOT parcel purchase
Town Contribution $40,523,046 Sitework and garage
Transit Stop Cost -$1,908,277 (ToV non-reimbursed cost)
Vertical Construction $123,376,684
Developer Obligation (does
not include the sales and
marketing cost)
Total Estimated Development Cost $172,438,175
Sales:
Gross Sales Proceeds $190,014,175
(includes $1,176,000 of sales
and marketing cost)
Sales and Marketing Cost $1,176,000
Proceeds less sales costs $188,838,175
Construction Loan
Repayment $124,552,684
Remainder: to be split $65,461,491
Split:Town of Vail Developer
$38,614,769 $16,400,000
$49,061,491
NOTE: Estimated Development Cost and Sales as of 5/13/24
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DEED RESTRICTION AGREEMENT
FOR THE OCCUPANCY AND TRANSFER OF TIMBER RIDGE VILLAGE
RESIDENTIAL DWELLING UNITS
THIS DEED RESTRICTION AGREEMENT (the "Agreement") is entered into this
_______ day of _______________, 20__ (the "Effective Date") by and between the Town
of Vail, Colorado, a Colorado home rule municipality with an address of 75 South
Frontage Road, Vail, CO 81657 (the "Town"), and Triumph Timber Ridge LLC, a
Delaware limited liability company with an address of 105 Edwards Village Boulevard,
C201, Edwards, CO 81632 ("Triumph") (each a "Party" and collectively the "Parties").
WHEREAS, Triumph owns the real property described as Unit ___, Timber Ridge
Village, Town of Vail, Colorado (the "Property"), and together with the Town, has
developed the Property as part of the Timber Ridge Village employee housing
development;
WHEREAS, Triumph is selling the Property to a third party; and
WHEREAS, prior to such sale, the Parties wish to permanently restrict the
occupancy, use and resale of the Property.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the sufficiency of which is mutually acknowledged, the
Parties agree as follows:
1. Property. The Property is hereby burdened with the covenants and restrictions
specified in this Agreement, in perpetuity.
2. Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:
a. Guidelines means the current version of the Timber Ridge Village Employee
Housing Guidelines adopted by the Town. The version adopted as of the Effective Date
is attached hereto as Exhibit 1 and incorporated herein by this reference.
b. Owner means any person who acquires an ownership interest in the
Property.
c. Principal Place of Residence means the home or place in which one's
habitation is fixed and to which one has a present intention of returning after a departure
or absence therefrom. In determining what is a Principal Place of Residence, the Town
shall consider the criteria set forth in C.R.S. § 31-10-201(3), as amended.
d. Qualified Occupant means an individual who: works an average of 30 hours
or more per week at a business in Eagle County, Colorado that holds a valid and current
business license, or pays sales taxes, or is otherwise generally recognized as a legitimate
business; and earns at least 75% of their income from such business. For example, if an
individual worked 60 hours per week for one half of the year at such a business in Eagle
County, Colorado, and worked elsewhere for the other half of the year, such person would
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be a Qualified Occupant. A Qualified Occupant also includes an individual who: was a
Qualified Occupant when the individual purchased the Property, but then retired while
owning the Property; was 60 years of age or older at the time of retirement; for the 5 years
immediately prior to retirement, worked an average of 30 hours or more per week at a
business in Eagle County, Colorado that held a valid and current business license, or paid
sales taxes, or was otherwise generally recognized as a legitimate business; earned at
least 75% of their income from such business during such 5-year period; and does not
work for a business outside of Eagle County, Colorado.
e. Transfer means any sale, conveyance, assignment or transfer, voluntary or
involuntary, of any interest in the Property, including without limitation a fee simple
interest, a joint tenancy interest, a life estate, a leasehold interest and an interest
evidenced by any contract by which possession of the Property is transferred and an
Owner retains title; provided that the lease of a room or rooms within the Property to a
Qualified Occupant in accordance with this Agreement shall not constitute a Transfer.
3. Occupancy Restrictions.
a. The Property shall be continuously occupied by at least one Qualified
Occupant as their principal place of residence. For purposes of this Agreement, the
Property will be considered to be continuously occupied if the Property is not vacant for
more than 90 total days in any calendar year.
b. No business activity shall occur on or within the Property, other than as
permitted within the zone district applicable to the Property.
c. Occupancy of the Property shall comply with the Guidelines at all times.
4. Transfer.
a. An Owner shall first notify the Town that the Owner wishes to Transfer the
Property. The Town shall have the first option to purchase the Property, exercisable within
a period of 15 days after receipt of notice, and if the Town exercises its right and option,
the Town shall purchase the Property from the Owner for the appraised market value.
b. Should the Town determine not to purchase the Property, the Owner may
list the Property for sale.
c. At closing, the buyer shall execute, in a form satisfactory to the Town and
for recording with the Eagle County Clerk and Recorder, a document acknowledging this
Deed Restriction and expressly agreeing to be bound by it.
5. Consensual Lien; Right to Redeem. For the purpose of securing performance
under this Agreement and creating in favor of the Town a right to redeem in accordance
with Part 3 of Article 38 of Title 38, C.R.S., as amended, Triumph hereby grants to Town
a consensual lien on the Property. Such lien shall not have a lien amount.
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6. Breach.
a. It shall be a breach of this Agreement for an Owner or a Qualified Occupant
to violate any provision of this Agreement, or to default in payment or other obligations
due to be performed under a promissory note secured by a first deed of trust encumbering
the Property.
b. If the Town has reasonable cause to believe that an Owner is violating this
Agreement, the Town may inspect the Property between the hours of 8:00 a.m. and 5:00
p.m., Monday through Friday, after providing the Owner with 24 hours written notice. This
Agreement shall constitute permission to enter the Property during such times upon such
notice.
c. If the Town discovers a violation of this Agreement, the Town shall notify
the Owner of the violation and allow 15 days to cure.
7. Remedies.
a. Any Transfer in violation of this Agreement shall be wholly null and void and
shall confer no title whatsoever upon the purported buyer. Each and every Transfer, for
all purposes, shall be deemed to include and incorporate by this reference the covenants
contained in this Agreement, even if the Transfer documents fail to reference this
Agreement.
b. The Town may pursue all available remedies for violations of this
Agreement, including without limitation specific performance or a mandatory injunction
requiring a Transfer of the Property, with the costs of such Transfer to be paid out of the
proceeds of the sale.
c. Upon request by the Town, each Owner authorizes the holder of any
mortgage or deed of trust against the Property to disclose to the Town if any payments
due are delinquent and the duration and amount of such delinquency.
d.
8. Foreclosure.
a. The Owner shall notify the Town, in writing, of any notification received from
a lender of past due payments or defaults in payments or other obligations within 5 days
of receipt of such notification.
b. The Owner shall immediately notify the Town, in writing, of any notice of
foreclosure under the first deed of trust or any other subordinate security interest in the
Property, or when any payment on any indebtedness encumbering the Property is
required to avoid foreclosure of the first deed of trust or other subordinate security interest
in the Property.
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c. Within 60 days after receipt of any notice described herein, the Town may
(but shall not be obligated to) proceed to make any payment required to avoid foreclosure.
Upon making any such payment, the Town shall place a lien on the Property in the amount
paid to cure the default and avoid foreclosure, including all fees and costs resulting from
such foreclosure.
d. Notwithstanding any other provision of this Agreement, in the event of a
foreclosure, acceptance of a deed-in-lieu of foreclosure, or assignment, this Agreement
shall remain in full force and effect.
e. The Town shall have 30 days after issuance of the public trustee's deed or
the acceptance of a deed in lieu of foreclosure by the holder in which to purchase by
tendering to the holder, in cash or certified funds, an amount equal to the redemption
price which would have been required of the borrower or any person who might be liable
upon a deficiency on the last day of the statutory redemption period(s) and any additional
reasonable costs incurred by the holder related to the foreclosure.
9. Miscellaneous.
a. Modification. This Agreement may only be modified by subsequent written
agreement of the Parties; provided that, if the Town obtains title to the Property, the Town
may modify or terminate this Agreement at any time.
b. Integration. This Agreement and any attached exhibits constitute the entire
agreement between the Parties, superseding all prior oral or written communications.
c. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective heirs, successors and assigns.
d. Severability. If any provision of this Agreement is determined to be void by
a court of competent jurisdiction, such determination shall not affect any other provision
hereof, and all of the other provisions shall remain in full force and effect.
e. Governing Law and Venue. This Agreement shall be governed by the laws
of the State of Colorado, and any legal action concerning the provisions hereof shall be
brought in Eagle County, Colorado.
f. Third Parties. There are no intended third-party beneficiaries to this
Agreement.
g. No Joint Venture. Notwithstanding any provision hereof, the Town shall
never be a joint venture in any private entity or activity which participates in this
Agreement, and the Town shall never be liable or responsible for any debt or obligation
of any participant in this Agreement.
h. Notice. Any notice under this Agreement shall be in writing, and shall be
deemed sufficient when directly presented or sent pre-paid, first class United States Mail
to the Party at the address set forth on the first page of this Agreement, or, if the Property
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has been transferred to a subsequent Owner, to the Owner's address on file with the
Eagle County Assessor.
i. Recording. This Agreement shall be recorded with the Eagle County Clerk
and Recorder. The benefits and obligations of Triumph under this Agreement shall run
with the land, and shall be binding on any subsequent holder of an interest in the Property.
j. Savings Clause. If any of the terms, covenants, conditions, restrictions,
uses, limitations, obligations or options created by this Agreement are held to be unlawful
or void for violation of: the rule against perpetuities or some analogous statutory
provision; the rule restricting restraints on alienation; or any other statutory or common
law rules imposing like or similar time limits, then such provision shall continue only for
the period of the lives of the current duly elected and seated members of the Vail Town
Council, their now living descendants, if any, and the survivor of them, plus 21 years.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
TOWN OF VAIL, COLORADO
________________________________
Russell Forrest, Town Manager
ATTEST:
_____________________________
Stephanie Kauffman, Town Clerk
TRIUMPH
By: ________________________________
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was subscribed, sworn to and acknowledged before me
this ___ day of ___________________, 2024, by ________________ as
_____________ of Triumph Timber Ridge LLC.
Witness my hand and official seal. ______________________________
Notary Public
(S E A L)
My commission expires:
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EXHIBIT 1
TIMBER RIDGE VILLAGE EMPLOYEE HOUSING GUIDELINES
1. General. These Guidelines are intended to supplement the Deed Restriction
Agreement for the Occupancy and Transfer of the Timber Ridge Village Residential
Dwelling Units (the "Deed Restriction"). These Guidelines may be updated by Town staff
as necessary, and the current version of these Guidelines shall always control over any
prior version. In the event of any conflict between these Guidelines and the Deed
Restriction, the Deed Restriction shall control.
2. Occupancy.
a. Leasing. Each lease shall include a clear reference to the Deed Restriction
and a brief summary of the Deed Restriction, and shall by reference incorporate the terms
and conditions of this Deed Restriction. No lease shall be for a period of less than 30
days.
b. Occupants. Each adult individual occupying the Property shall be named
in a lease, and no other occupants are permitted. An individual shall be considered to be
occupying the Premises if the individual reasonably appears to be using the Property as
a place to live. Indications of occupancy shall include without limitation: coming and
going to the Property with the use of a key, providing any third-party with the address of
the Property as that person's residential address, receiving mail or deliveries at the
Property, keeping clothes or personal effects at the Property, commonly being present in
the Premises, or commonly parking a vehicle at or near the Property. An individual may
establish unauthorized occupancy of the Premises even if they own or lease other real
property.
c. Leave of Absence. The Town may grant a leave of absence to a Owner for
up to one year, upon clear and convincing written evidence that shows a reason for
leaving and a commitment to return to the Property. Such written evidence shall be
presented to the Town at least 30 days prior to leaving. The leave of absence may, in
the sole discretion of the Town, be extended for up to 2 years. During the leave, the
Property must be rented to one or more Qualified Occupants in accordance with the Deed
Restriction.
c. Disability. Should a Qualified Occupant become an individual with a
disability and, because of such disability, be unable to meet the requirements of the Deed
Restriction to remain a Qualified Occupant, the Qualified Occupant shall notify the Town,
in writing, of the nature of the disability. If the disability is permanent, the Qualified
Occupant shall remain a Qualified Occupant despite the disability. If the disability is
temporary and the Qualified Occupant becomes able to return to work, then to remain a
Qualified Occupant, the Qualified Occupant must return to work when the disability
ceases. Notwithstanding anything to the contrary in these Guidelines or the Deed
Restriction, the Town will make all reasonable accommodations necessary under the
Americans with Disabilities Act.
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C:\USERS\MEFOS\DROPBOX\TIMBER RIDGE\TOV DEAL\SECOND AMENDED DA\EXHIBITS\DA EXHIBIT D - DEED
RESTRICTION LANGUAGE TRV.DOCX
3. Annual Verification.
a. Affidavit. No later than February 1st of each year, each Owner shall submit
a sworn affidavit, on a form provided by the Town, verifying that the Property is occupied
in accordance with the Deed Restriction and these Guidelines.
b. Additional Documentation. The affidavit shall be accompanied by the
following supporting documentation:
i. Verification of each Qualified Occupant's current employment and
employment during the prior year (paystubs with employer's name, address and
contact information);
ii. Signed authorization allowing the Town discuss employment details with
each Qualified Occupant's employer;
iii. Each Qualified Occupant's federal income tax return from the prior year,
together with an executed Internal Revenue Service Form 8821 or equivalent;
iv. Copies of all leases of the Property during the prior year.
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