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HomeMy WebLinkAbout2024-40 A Resolution Approving the Agreement Related to Development Agreement and Town Financial Contribution with FirstBank and Triumph TImber Ridge LLC Regarding the Development of Timber Ridge VillageRESOLUTION NO. 40 Series of 2024 A RESOLUTION APPROVING THE AGREEMENT RELATED TO DEVELOPMENT AGREEMENT AND TOWN FINANCIAL CONTRIBUTION WITH FIRSTBANK AND TRIUMPH TIMBER RIDGE, LLC REGARDING THE DEVELOPMENT OF TIMBER RIDGE VILLAGE WHEREAS, on July 23, 2024, the Town Council approved the Second Amended and Restated Development Agreement with Triumph Timber Ridge, LLC for the redevelopment of the Timber Ridge Apartments; and WHEREAS, as a condition to the loan funding for the development, FirstBank requires that the Town approve the Agreement Related to Development Agreement and Town Financial Contribution attached hereto. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO: Section 1. The Town Council hereby approves the Agreement Related to Development Agreement and Town Financial Contribution (the "Agreement") in substantially the form attached hereto, subject to final approval by the Town Attorney and further subject to satisfaction of all of the following conditions: a. The Agreement shall not be executed unless and until the Second Amended and Restated Development Agreement is fully executed; b. Prior to execution of the Agreement, FirstBank shall deliver a true and correct copy of all loan documents to the Town Manager for review and approval, which approval shall be in the Town Manager's sole discretion; c. Prior to execution of the Agreement, FirstBank shall deliver a true and correct copy of the final development budget to the Town Manager for review and approval, which approval shall be in the Town Manager's sole discretion; d. The Agreement shall not be executed until the closing of the loan with FirstBank, and if the loan does not close, the Agreement shall not be executed; and e. Notwithstanding anything in the Agreement to the contrary, the Agreement is expressly subject to the Town's governmental authority and police power and the Town does not, by approval or execution of the Agreement, waive or abrogate any of its governmental authority or police power. Section 2. Upon the final approval of the Town Attorney and after satisfaction of all of the above conditions, the Town Manager is authorized to execute the Agreement on behalf of the Town. INTRODUCED, READ, APPROVED AND ADOPTED this 23 rd day of July, 2024. ___________________________________ Travis Coggin, Mayor ATTEST: _____________________________ Stephanie Kauffman, Town Clerk 125218243.8 After recording return to: FirstBank Attn: Loan Operations 12345 West Colfax Avenue Lakewood, CO 80215 ______________________________________________________________________ AGREEMENT RELATING TO DEVELOPMENT AGREEMENT AND TOWN FINANCIAL CONTRIBUTION THIS AGREEMENT RELATING TO DEVELOPMENT AGREEMENT AND TOWN FINANCIAL CONTRIBUTION (this “Agreement”) dated July __, 2024 (the “Effective Date”), is by and among the TOWN OF VAIL, a Colorado home rule municipality with an address of 75 South Frontage Road, Vail, CO 81657 (the “Town”), TRIUMPH TIMBER RIDGE, LLC, a Delaware limited liability company (“Developer”), and FIRSTBANK, a Colorado state banking corporation (“Lender, together with Developer and Town, collectively the “Parties,” each a “Party”). RECITALS A.On or about July __, 2024 the Town and Developer entered into the Second Amended Development agreement which was recorded in the records of the Clerk and Recorder of Eagle County (“Records”) on __________at Reception No. ____________________ (“Development Agreement”, related to the redevelopment and construction of employee housing comprised of 294 residential dwelling units (each a “Unit”) in 7 individual buildings, with a minimum of 346 enclosed, surface and on-street parking spaces, and associated landscaping, lighting, driveway and walkway improvements (the “Development”) on the real property more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the “Property”). The Development Agreement amended and restated and replaced in full the Development Agreement dated June 16, 2023 and the Amended and Restated Development dated May 15, 2024, each between Developer and the Town. B.Pursuant to Section 3.a. of the Development Agreement and the Special Warranty Deed from the Town to Developer dated _________ and recorded in the Records on __________at Reception No. ____________________ (“Deed”), the Town has reserved a Revisionary Interest (as defined in the Development Agreement (together with any other right to re-acquire title or require title to the Property revert to the Town, the “Reversionary Interest”). C.The Property is currently subject to the Development Plan as defined in the Development Agreement. D.The Town conveyed the Property by Deed to Developer and Developer accepted the Property in consideration for, among other things, the agreements set forth in the Development Agreement. 125218243.8 2 E.On or about even date herewith, Lender will close a construction loan to Developer in an original principal amount of approximately Ninety Million and No/100ths Dollars ($90,000,000.00) to fund a portion of the costs of the Development (“Loan”). The Loan is secured by, among other things, that certain Deed of Trust, Security Agreement and Fixture Filing dated on or about even date herewith and recorded in the Records on __________________ at Reception No. ___________________ and Assignment of Leases, Rents, and other Rights dated on or about even date herewith and recorded in the Records on _________ at Reception No. __________(collectively, the “Deed of Trust”), encumbering the Property. The Deed of Trust, together with any and all agreements, documents, writings or instruments which evidence and/or secure the Loan, as the same may be extended, consolidated, amended, modified, supplemented, or restated are collectively referred to herein as the “Loan Documents.” F.As a condition precedent to closing and advancing the Loan, Lender requires that Developer and the Town execute and deliver this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals which are incorporated herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, and to induce Lender to enter into the transactions contemplated by the Loan Documents, the Parties agree as follows: 1. Definitions. As used in this Agreement, the terms set forth on Exhibit B have the meanings ascribed on Exhibit B. Capitalized terms not defined herein, or as stated herein as defined in the Development Agreement, shall have the meanings ascribed in the Loan Documents. 2. Consent to Loan. The Town hereby consents to the Loan. 3. Collateral Assignment of Vested Property Rights and Development Agreement. As additional collateral for the Loan, Developer has collaterally assigned to Lender all of Developer’s right, title, and interest in and to the Development Agreement and any and all vested property rights under C.R.S. § 24-68-101 et seq., and Chapter 19 of Title 12 of the Vail Town Code (collectively, the “Development Rights”). The Town, upon demand from Lender as a result of a default or Event of Default under the Loan Documents, will recognize and accept Lender and its successors and assigns as the holder of the Development Rights for any and all purposes relating to Development and Property as fully as it would recognize and accept Developer, and the performance of Developer thereunder. Following a default or an Event of Default under the Loan Documents, at Developer’s sole cost and expense, (a) the Town upon written notice from Lender of the occurrence of a default or an Event of Default, shall be and is hereby authorized by Developer to allow Lender and its successors and assigns to perform under the Development Agreement in accordance with the terms and conditions thereof without any obligation to determine whether or not such default or Event of Default has in fact occurred or is continuing; (b) Lender is entitled to exercise all rights of Developer under the Development Agreement and to assign the Development Agreement to a future owner of the Property subject to the terms of the Development Agreement; (c) if Lender its successors or assigns does so perform under the Development Agreement, 125218243.8 3 the Town shall not declare a default of the Development Agreement merely on the basis of Lender or is successors or assigns assuming Developer’s rights and responsibilities thereunder; and (d) the Development Rights may be assigned by Lender its successors and assigns to any future owner of the Property subject to assumption of the obligations by such future owner of the Property of the Development Rights. Upon Lender or its successors or assigns becoming an owner of the Property whether through foreclosure or deed in lieu thereof (y) the Town will not impose additional entitlement obligations upon Lender its successors and assigns merely as a result of Lender becoming the legal owner thereof and (z) Lender is entitled to sell any part of or the whole of the Property subject to the Development Rights. Any amounts collected by Developer under the Development Agreement after the occurrence of a default or Event of Default under the Loan Documents shall be applied to the Development Costs in accordance with the Loan Agreement and the provisions of this Agreement. The Development Plan created vested property rights as provided in the Vail Town Code and this Agreement does not create any additional vested property rights. 4. Subordination and Termination of Reversionary Interest. The “Subordinate Provisions” shall mean, the Reversionary Interest as set forth in the Development Agreement and the Deed and all other sections of each of the Development Agreement and the Deed that may reasonably apply to the Reversionary Interest. The Subordinate Provisions (a) are hereby subordinated to Lender’s Deed of Trust, and if Lender shall complete a foreclosure of the lien of the Deed of Trust, or accept a deed in lieu thereof, such Subordinate Provisions automatically terminate and shall be deemed null and void and of no further force or effect; (b) are subject to the repayment of the Loan in full, until such time as the Loan is paid in full at which time Lender’s Deed of Trust shall be released from the Property; and (c) and terminate and are of no further force or effect upon final delivery of the Financial Contribution (as defined in the Development Agreement) to the Construction Draw Account. Contemporaneously with the final advance of the Financial Contribution to the Construction Draw Account, the Town shall execute and deliver to Developer the Release attached hereto as Exhibit C which Developer shall record in the Records. In no event shall the Property be reconveyed by Developer to the Town without payment of the Loan in full. 5. Disbursement of Financial Contribution. (a) Pursuant to the Development Agreement, the Town has agreed to fund the Financial Contribution. The Financial Contribution will be contributed to the Construction Draw Account on a monthly advance basis in accordance with the Development Agreement and used by Developer to pay for all of the initial costs of the Development, until expended, including all of Developer’s soft costs accrued to date and then any other costs incurred under the Budget. (b) The Financial Contribution will be disbursed prior to Lender disbursing Loan funds (the period of time during which the Financial Contribution is used in the Development, is hereafter, the “Town Disbursement Period”). Lender will not disburse Loan funds until Developer has expended Developer’s equity of $10,770,000 to costs incurred under the Budget. 125218243.8 4 (c) Lender’s Consulting Construction Manager shall be able to inspect the Property during the Town Disbursement Period and Lender shall be able to access and review all advance requests by Developer for the Financial Contribution but Lender shall have no right to approve or disapprove any of Developer’s advance requests for the Financial Contribution. Developer and the Town acknowledge that upon depositing any of the Financial Contribution into the Construction Draw Account, the requirements under the Development Agreement for advances of Financial Contribution with respect to those funds have been deemed met; notwithstanding the foregoing, Developer shall comply with Lender’s conditions to disbursement of Loan funds in the Loan Agreement. (d) The Town agrees that should it have access to Lender’s disbursement software, titled “Built,” it will have no further access after the Town Disbursement Period. 6. Cross-Default. A default under the Development Agreement is deemed an Event of Default under the Loan Documents. A default under the Loan Agreement is deemed a default under the Development Agreement. 7. Default Under Loan Documents or the Development Agreement. (a) Before the first advance of Loan proceeds, in the event of a Developer default under the Development Agreement, the Town may request Lender release the lien of the deed of trust in favor of Lender. In connection therewith, Lender may terminate the Loan. (b) From and after the first advance of Loan proceeds, in the event of any default or Event of Default under the Loan Documents for which Lender will exercise its remedies of foreclosure or receivership under the Loan Documents, in law or equity (“Loan Default”), and/or a default under the Development Agreement, the Town and Lender agree among themselves to the following: i. Town’s Right to Notice, Cure, and to Extinguish Loan. Lender agrees to deliver the Town any Notice of Termination or other notice of Loan Default delivered to Developer (the “Loan Default Notice”). The Town shall have the right within one hundred and twenty (120) days to cure the default set forth in the Loan Default Notice and all other defaults that accrue thereafter (the “Town Cure Period”) and such cure shall be deemed effectuated by the Town performing all obligations required by Lender under the Loan Documents for Developer to perform; provided, however, during the Town Cure Period, Lender may continue to exercise its rights and remedies under the Loan Documents, in law or equity, including without limitation, acceleration, other remedies, or the payment of monies to preserve the collateral Property. The Town acknowledges that the “cure” by the Town may include payment in full of all amounts due and owing under the Loan Documents, including all amounts as expended by Lender in pursuing its rights and remedies and preserving collateral. In addition to the cure right granted to the Town herein, the Town shall have a right anytime during the Town Cure Period to repay the Loan in full, including all amounts due and owning whether accrued before or after the 125218243.8 5 Loan Default. During the Town Cure Period, Lender agrees to deliver to the Town a Loan pay-off statement promptly upon request of the Town therefore which shall be effective for such time as shall be set forth therein. ii.Lender's Right to Notice and Cure. As set forth in Section 12.b.i. of the Development Agreement, Lender shall have a right to notice from the Town of a default under the Development Agreement (“Town Default Notice”) and the right to cure a Developer default under the Development Agreement (the period set forth in Section 12.b.i of the Development Agreement, the “Lender Cure Period”). iii.Standstill Agreement.Notwithstanding any provision in the Development Agreement or this Agreement to the contrary, without prior written approval of Lender during the Standstill Period, the Town will standstill from exercising any right or remedy of the Town under Section 12 of the Development Agreement. For purposes of this Agreement, the “Standstill Period” means the period commencing from the sooner of delivery of (A) a Loan Default Notice or (B) a Town Default Notice and ending one-hundred twenty (120) days later. Provided, however, if, within such one-hundred twenty (120) day period, Lender has delivered to Town written evidence that it (a) has commenced an action for appointment of a receiver, (b) has commenced foreclosure, or (c) is pursuing a cure for the event of default or default described in the Town Default Notice, the Standstill Period shall be extended and shall expire upon (y) conveyance of the Property to a third party bona fide purchaser by Lender, its successor or assign, and assignment of the Development Agreement subject to the terms of this Agreement or (z) a third party becoming the owner of the Property through a foreclosure. In both (y) and (z) the Town shall give the third-party owner of the Property one-hundred eighty (180) days to cure any then existing default under the Development Agreement. During the Standstill Period, Lender may exercise any and all remedies under the Loan Documents, in law or equity. Upon pay-off of the Loan in full by the Town or Developer or expiration of the Standstill Period, the Town is entitled to exercise its remedies under the Development Agreement. For the avoidance of doubt, the Development Agreement cannot be modified without the consent of the Town. iv. Contemporaneous Periods. Neither Lender nor Town shall have to wait for the other to deliver the Town Default Notice or the Lender Default Notice, respectively. The Town Cure Period, Lender Cure Period, and the Standstill Period are not stacked and shall each run contemporaneously, respectively commencing from the date set forth in this Section 7. v. Rights in Plans, Specifications, Construction Documents. To the extent any of the rights of Developer in and to the plans, specifications, drawings, studies, reports, construction documents, or any other documents related to the Development (collectively, “Plans”) have automatically transferred to the Town under the Development Agreement, 125218243.8 6 the transfer of the Plans to the Town is subject to Lender’s rights therein and upon Lender’s request for the Plans, the Town shall immediately transfer and deliver the Plans to Lender and Lender has full power and rights to transfer the Plans with any conveyance of the Property, provided, however, if the Town is exercising a remedy under Section 12 of the Development Agreement but is not subject to this Agreement the Plans shall remain with or be transferred to the Town. vi. Consultation with Town. Lender agrees to consult with the Town to determine a mutually agreeable receiver or purchaser of the Property if Lender has control over either decision. The Town and Lender shall act in good faith to determine a mutually agreeable receiver or purchaser of the Property, and in the case of disagreement, Lender’s decision shall control. In connection therewith, Lender agrees to advise the Town of any actions that Lender intends to take that involve appointment of receiver or transfer of the property from Lender its successors or assigns at least three (3) business days before Lender takes such action (unless Lender reasonably determines that under the circumstances, such delay would prejudice any rights against Developer or collateral or would be detrimental to Lender’s interests) and to engage in discussions of the proposed course of action during such three (3) business days. If Lender and the Town cannot agree upon a mutually acceptable party, the Lender shall make a decision and the Town shall be bound thereby. Lender agrees to use its commercial efforts to choose a new developer or receiver that (i) has relevant experience with the development of workforce housing in the resort towns; (ii) is based in Colorado or with substantial operations in Colorado; and (iii) has experience with large-scale modular construction but Lender’s decision shall control. 8. Representations. The Town and Developer represent and warrant that all of the following are true as of the Effective Date: (a) The Development Plan has been approved by the Town; (b) The Town has approved changes to the Plans in accordance with Section 1.b. of the Development Agreement and the revised Plans are final for issuing building permits and for Developer to commence construction of the Development. (c) The Development Agreement is in full force and effect and has not been modified, amended, or assigned other by this Agreement; (d) Developer is not in default under any of the terms, covenants or provisions of the Development Agreement, and the Town knows of no event or circumstance which, with the passage of time or the giving of notice, or both, would constitute a default by Developer under the Development Agreement; (e) The Town has not commenced any action or given any notice to declare a default of the Development Agreement or to terminate the Development Agreement; and 125218243.8 7 (f) The Town is authorized to enter into this Agreement. 9. Additional Acknowledgment. Contemporaneously with funding the final deposit of the Financial Contribution to the Construction Draw Account, the Town agrees to execute and deliver to Lender, an acknowledgment in the form attached hereto as Exhibit D. 10. No Amendments or Termination. Developer agrees it will not agree to an amendment or modification to the Development Agreement without the prior written consent of Lender which consent will not be unreasonably withheld if such amendment is prior to the first funding of the Loan proceeds. The Town will not terminate the Development Agreement without a default under the Development Agreement and without first complying with Section 12.b.i of the Development Agreement and Section 7 of this Agreement to the extent applicable, unless the termination is for non- appropriation. 11. Insurance. From and after the first advance of Loan proceeds, to the extent the Town and Lender are co-payees under any insurance of Developer, Lender shall first be entitled to use the insurance proceeds subject to the terms of the Loan Documents. 12. Notices Under Development Agreement. For the benefit of Lender, the Town agrees to comply with Section 12.b.i of the Development Agreement. Developer agrees to promptly provide Lender any other notice under the Development Agreement delivered to it by the Town and to deliver a copy of any notice delivered to the Town under the Development Agreement simultaneously with delivery thereof to the Town. 13. Further Assurances. So long as the Deed of Trust shall remain a lien upon the Property or any part thereof, the Parties, and their respective successors or assigns, shall execute, acknowledge and deliver, promptly after being requested to do so any and all further instruments in recordable form reasonably requested by the requesting party for the purpose of confirming and carrying out the purpose and intent of the foregoing covenants. Promptly upon repayment in full of the Loan, Lender shall release the lien of the Deed of Trust, unless Lender determines in its reasonable discretion that any such repayment of the Loan may be considered a “preference” as such term is used by applicable bankruptcy law or may otherwise be set aside or subject to return or recovery. Upon the release of the Deed of Trust with respect to all or any portion of the Property, this Agreement shall be deemed to have terminated with respect to only that portion of the Property released. 14. Notices. Any notice from Lender to Developer, or Developer to Lender, shall be given in the manner set forth in the Loan Documents. Any notice from Developer to the Town, or the Town to Developer, shall be given in the manner set forth in the Development Agreement. Any notice from the Town to Lender, or Lender to the Town, shall be in writing, shall be delivered by Federal Express or other nationally recognized overnight delivery service, or delivered by hand, addressed as follows, or at such other address as a Party entitled to receive notices hereunder (a “Notice Party”) may notify the other Notice Parties in writing: If to the Town: Town of Vail 125218243.8 8 Attn: Town Manager 75 S. Frontage Road Vail, CO 81657 If to Lender: FirstBank Attn: Matt Gruesbeck 12345 West Colfax Avenue Lakewood, Colorado 80215 With a Copy to: Lewis Roca Rothgerber Christie LLP Attn: Lindsay McKae, Esq. 1601 19th Street, Suite 3000 Denver, Colorado 80202 Any notice delivered hereunder will be deemed received when delivered, or if delivery is refused, when delivery is first attempted in the ordinary course. Any notice sent by Federal Express or any nationally recognized overnight courier service shall be deemed received one business day after having been deposited with such overnight courier service if designated for next business day delivery. 15. Specific Performance and Injunctive Relief. Notwithstanding the availability of any other remedies, the non-defaulting party hereunder shall be entitled to obtain specific performance, mandatory or prohibitory injunctive relief, or other equitable relief requiring any defaulting party to cure any breach by it of the terms of this Agreement or refrain from repeating any breach or default hereunder, provided that the remedy of specific performance is only available to be obtained against the Town to the extent allowable by the law. 16. No Waiver, Remedies. No failure on the part of a Party to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver of that right or any other right (except as specifically referenced in this Agreement); nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise of the right or the exercise of any other right. All remedies are cumulative and not exclusive of any remedies provided by law or in equity. The failure at any time of any Party to timely comply with this Agreement shall constitute a default. No waiver of any provision of this Agreement shall be effective against any Party unless the waiver is in writing and signed by the Party against whom the waiver shall apply and shall be a waiver only with respect to the specific instance involved, nor shall the same establish a course of conduct. 17. Modification of Loan Documents. No renewal or extension of time of payment or modification of the Loan Documents, no release or surrender of security for the payment thereof, no delay in the enforcement of payment thereof and no delay or omission in exercising any right or power under the Loan Documents, shall in any manner impair or adversely affect the rights of Lender under this Agreement. The Town shall have the right to consent to a modification to the Loan Documents prior to the first funding of the Loan proceeds; thereafter, the Town shall have no right to consent to any 125218243.8 9 extension, renewal, or modification of the Loan or any other actions or matters of any nature whatsoever in connection with the Loan. 18. Miscellaneous. (a) This Agreement shall be binding upon and inure to the benefit of the Parties and each of their successors and assigns. (b) This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado and venue for actions arising under this Agreement shall be Eagle County. (c) This Agreement may be signed in any number of counterparts, all of which will constitute an original, and all of which when taken together shall constitute one instrument. (d) No provision of this Agreement may be changed, waived, discharged or terminated orally, by telephone or by any other means except by an instrument in writing signed by the Party against whom enforcement of the change, waiver, discharge or termination is sought. (e) If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, such provisions shall be fully severable and there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid or enforceable. (f) Headings used in this Agreement are used for reference purposes only and do not constitute substantive matter to be considered in construing the terms of this Agreement. The Recitals to this Agreement and all exhibits referenced herein are incorporated herein and made a part of this Agreement. (g) 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. (h) To the extent any waiver or abrogation of any governmental power is precluded by law or would cause this Agreement to be unenforceable, notwithstanding any other provision of this Agreement, nothing in this Agreement shall constitute a waiver or abrogation of any governmental power of the Town. [Signature Pages Follow] [Signature Page to Agreement Relating to Development and Subordination] IN WITNESS WHEREOF, this Agreement Relating to Development Agreement and Town Financial Contribution is executed as of the Effective Date. TOWN: TOWN OF VAIL, COLORADO _____________________________________ Russell Forrest, Town Manager Attest: ___________________________ Stephanie Kauffman, Town Clerk [Signature Page to Agreement Relating to Development and Subordination] IN WITNESS WHEREOF, this Agreement Relating to Development Agreement and Town Financial Contribution is executed as of the Effective Date. DEVELOPER: TRIUMPH TIMBER RIDGE, LLC, a Colorado limited liability company, By: Name:James Fangmeyer Title: Manager STATE OF COLORADO ) ) ss: COUNTY OF ___________) The foregoing instrument was acknowledged before me this _____ day of _____________, 2024 by James Fangmeyer, as Manager of Triumph Timber Ridge, LLC, a Delaware limited liability company. My Commission Expires . Witness my hand and official seal. [ S E A L ] Notary Public [Signature Page to Agreement Relating to Development and Subordination] IN WITNESS WHEREOF, this Agreement Relating to Development Agreement and Town Financial Contribution is executed as of the Effective Date. LENDER: FIRSTBANK, a Colorado state banking corporation By: Name: Matt Gruesbeck Title: Senior Vice President STATE OF COLORADO ) ) ss: COUNTY OF _________________ ) The foregoing instrument was acknowledged before me this ____ day of _____________, 2024, by Matt Gruesbeck, as Senior Vice President of FirstBank, a Colorado state banking corporation. My Commission Expires . Witness my hand and official seal. [ S E A L ] Notary Public 125218243.8 A-1 EXHIBIT A Legal Description 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 125218243.8 1 EXHIBIT B Definitions “Budget” means a budget and construction schedule reflecting the cost of each item of work or material required to construct the Development prepared and certified by Developer in form, scope, and substance satisfactory to FirstBank and approved by the Town to the extent the categories described on the “Development Costs” exhibit of the Development Agreement are inconsistent. “Business Day” means a day other than a Saturday, Sunday or other day on which national banks in Denver, Colorado are authorized or required to be closed. “Construction Draw Account” means the account of Developer into which the Town’s Financial Contributions shall be deposited and from which the Financial Contributions shall be disbursed to pay for the costs of the Development. “Consulting Construction Manager” means Marx Okubo or such other third-party inspector retained by FirstBank at Developer’s expense, who may, from time to time, perform inspection services related to the Property including, without limitation, review of the Plans and all proposed changes in them, inspection of construction of the Development for conformity with the Plans. 125218243.8 2 EXHIBIT C Form of Release After recording return to: FirstBank Attn: Matt Gruesbeck, Senior Vice President 10403 West Colfax Avenue Lakewood, CO 80215 RELEASE THIS RELEASE (this “Release”) is entered into this day of ________ 2024 (the “Effective Date”), by and between the TOWN OF VAIL, a Colorado home rule municipality (the “Town”), and TRIUMPH TIMBER RIDGE, LLC, a Delaware limited liability company (“Developer”). The Town and Developer are sometimes collectively referred to herein as the “Parties” and are each referred to herein as a “Party”. RECITALS A. Developer is the owner of certain real property located in the Town of Vail, State of Colorado more particularly described on Exhibit 1, attached hereto and incorporated herein by reference (the “Property”). B. Pursuant Section 3.a. of the Second Amended and Restated Development Agreed dated ____________ and recorded in the records of Eagle County, Colorado (the “Records”) on __________ at Reception No. _____________ (“Development Agreement”) and the Special Warranty Deed from the Town to Developer recorded in the Records on _________ at Reception No._______________, the Town and Developer agreed to reserve for the Town a revisionary interest in and to the Property (together with any other right to re-acquire or have title to the Property revert to the Town, the “Reversionary Interest”). C. Pursuant to Section 9.b. of the Development, the Town and Developer each have a right to terminate the Development Agreement if certain conditions precedent therein were not satisfied by the Developer (“Conditional Right”). D. On or prior to the Effective Date, each of the Reversionary Interest and the Conditional Right shall be null and void and of no further force and effect and the parties wish to reflect the same in the Records. AGREEMENT NOW, THEREFORE, in consideration of the Recitals, promises and covenants set forth in this Release, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 125218243.8 3 1. Recitals. The Recitals set forth above are hereby incorporated into and made a part of this Release. 2. Reversionary Interest. The Parties hereby terminate and release the Reversionary Interest and agree that the Reversionary Interest is of no further force or effect, and this Release shall serve as record notice or otherwise, with respect to the Property and the Parties. 3. Conditional Right. The Parties acknowledge that the Developer has timely satisfied the conditions precedent set forth in Section 9.b. of the Development Agreement, and therefore neither Party retains the right to terminate the Development Agreement under the terms of Section 9.b. of the Development Agreement. 4. Miscellaneous. a. Entire Agreement. This Release contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior proposals, negotiations and representations pertaining to the subject matter hereof. b. Severability. If any covenant, obligation or provision of this Release shall be invalid or unenforceable, the remainder of this Release (other than such invalid or unenforceable covenant, obligation or provision) shall be separately valid and enforceable to the fullest extent permitted by law. c. Counterparts. This Release may be executed in counterparts which together shall constitute one instrument. d. Governing Law and Venue. This Release shall be governed by and construed in accordance with the laws of the State of Colorado without giving effect to conflict of laws rules and venue for any action under this Release shall be in Eagle County. e. Binding Effect. This Release shall be binding on and inure to the benefit of the Parties and to respective heirs, executors, administrators, successors, and assigns. f. Amendment and Waiver. No amendment or modification of or to this Release shall be valid or binding unless expressed in writing, signed by both Parties and recorded. No waiver or relinquishment of any right hereunder shall be valid unless in writing and signed by the Party entitled to provide such waiver or relinquish such right. g. Recording. The Parties agree that this Release shall be recorded against the Property in the Records. [Signature Pages Follow] 125218243.8 SIGNATURE PAGE IN WITNESS WHEREOF, the Parties have executed this Release, effective as of the Effective Date. TOWN: TOWN OF VAIL, COLORADO _________________________________________ Russell Forrest, Town Manager Attest: ____________________________ Stephanie Kauffman, Town Clerk [Signature Page Follows] 125218243.8 DEVELOPER: TRIUMPH TIMBER RIDGE, LLC, a Colorado limited liability company, By: Name: James Fangmeyer Title: Manager STATE OF COLORADO ) ) ss: COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this _____ day of _____________, 2024 by James Fangmeyer, as Manager of Triumph Timber Ridge, LLC, a Delaware limited liability company. My Commission Expires . Witness my hand and official seal. [ S E A L ] Notary Public 125218243.8 EXHIBIT 1 PROPERTY LEGAL DESCRIPTION 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 125218243.8 EXHIBIT D ACKNOWLEDGEMENT With respect to that certain Agreement Relating to Development Agreement and Town Financial Contribution, dated as of __________ __, 2024 (“Agreement”), by and among the Town of Vail, Colorado, a home rule municipality (the “Town”), Triumph Timber Ridge, LLC, a Delaware limited liability company (“Developer”) and FirstBank, a Colorado state banking corporation (“Lender”) the undersigned represents to Lender that as of the date hereof, the following are true and correct (capitalized terms used herein but not defined have the meanings ascribed in the Agreement): 1. The entire Financial Contribution has been deposited into the Construction Draw Account. 2. The Development Agreement is in full force and effect and has not been modified, supplemented, or amended in any way except as described hereafter:____________________________________________________________________ ____. 3. There exists no default under, violation of, or failure to comply with the Development Agreement or the Agreement by Developer or the Town. 4. No event has occurred that with the giving of notice or the lapse of time, or both, would constitute a default under, violation of, or failure to comply with the Agreement or Development Agreement by Developer or the Town. 5. The Reversionary Interest is terminated. 6. With respect to the purchase of the Units from the Town, the Town acknowledges that any purchase agreement may be collateral assigned by Developer to Lender as collateral for the Loan and the following is true (Town to select which is true): The Town has elected which Units to purchase in accordance with Section 7.d. of the Development Agreement. The Town has not elected which Units to purchase in accordance with Section 7.d of the Development Agreement. 7. The undersigned is duly authorized to sign and deliver this Acknowledgement, and no other signatures are required or necessary in connection with the execution and validity of this Acknowledgement. 8. This Acknowledgement shall inure to the benefit of Lender and its successors and assigns who may each rely upon the certifications, representations, statements and agreements set forth in this certificate. 125218243.8 9.The undersigned agrees that a signed copy of this Acknowledgement deliver to the Lender as an Adobe Acrobat PDF file shall be deemed to be, and shall be treated as, an original document for all purposes, and it shall be considered to have the same binding legal effect as an original signature or original document. IN WITNESS WHEREOF, the undersigned has caused this Acknowledgement to be executed and delivered as of the day and year first written above. TOWN OF VAIL, COLORADO _________________________________________ Russell Forrest, Town Manager Attest: ____________________________ Stephanie Kauffman, Town Clerk .