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HomeMy WebLinkAbout2024-07-23 Agenda and Supporting Documentation Town Council Special Meeting1.Call to Order (5:30pm) 2.Executive Session (5:30pm) (40 min.) Executive Session pursuant to: 1.C.R.S. §24-6-402(4)(a) - to consider the purchase, acquisition, lease, transfer or sale of any real, personal or other property interest, C.R.S. §24-6-402(4)(b) to hold a conference with the Town Attorney, to receive legal advice on specific legal questions, and §24-6-402(4)(e) to determine positions relative to matters that may be subject to negotiations develop a strategy for negotiations and instruct negotiators and on the topic of agreements between the Town of Vail, Triumph Timber Ridge LLC and First Bank related to the redevelopment of the West side of the Timber Ridge Apartments. 3.Any action as a result of Executive Session (6:10pm) 4.Action Items (6:10pm) 4.1 Resolution No. 39, 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 (6:10pm) 5 min. Approve, approve with amendments, or deny Resolution No. 39, Series of 2024. Presenter(s): George Ruther, Housing Consultant Background: This agenda item advances the critical actions identified in the Vail Town Council Action Plan, furthers the adopted housing goal for the town of Vail, and aids in Vail realizing it's vision to be the premiere international mountain resort community and as a national leader in the delivery of VAIL TOWN COUNCIL MEETING Evening Session Agenda Town Council Chambers and virtually via Zoom. Zoom meeting ID: https://vail.zoom.us/webinar/register/WN_z39QmLTrQbOmM60XE9lEoA 5:30 PM, July 23, 2024 SPECIAL MEETING Notes: Times of items are approximate, subject to change, and cannot be relied upon to determine what time Council will consider an item. Public comment will be taken on each agenda item. Public participation offers an opportunity for citizens to express opinions or ask questions regarding town services, policies or other matters of community concern, and any items that are not on the agenda. Please attempt to keep comments to three minutes; time limits established are to provide efficiency in the conduct of the meeting and to allow equal opportunity for everyone wishing to speak. 1 housing solutions for its community residents. 4.2 Resolution No. 40, Series of 2024, A Resolution Approving the Agreement Related to Development Agreement and Town Financial Contribution with First Bank and Triumph Timber Ridge, LLC Regarding the Development of Timber Ridge Village (6:15pm) 15 min. Approve, approve with amendments, or deny Resolution No. 40, Series of 2024. Presenter(s): George Ruther, Housing Consultant Background: The primary objective of the agreement is to prescribe the terms and conditions whereby the development is completed, and the construction loan is repaid, in the event the borrower is in default with the terms of the loan documents. 5.Public Hearings (6:30pm) 5.1 Ordinance No. 09, Series of 2024, An Emergency Ordinance Approving the Conveyance of Real Property Owned by the Town of Vail, Described as Amended Final Plat, Lot 1, Timber Ridge Subdivision 5 min. Approve, approve with amendments, or deny emergency Ordinance No. 09, Series of 2024. Presenter(s): George Ruther, Housing Consultant Background: The agenda item advances the critical actions identified in the Vail Town Council Action Plan, further adopted housing goal of the Town of Vail, and aids Vail in realizing its vision to be the premier international mountain resort community and as a national leader in the delivery of housing solutions for its community residents. 6.Adjournment 6:35pm (estimate) Resolution No. 39 Memo Resolution No. 39, Series of 2024, Triumph 2nd Amended DA-A072224 2nd Amended and Restated Development Agreement Timber Ridge Village with Exhibits 2024-07-23 Tri-party Agreement Memorandum 2024-07-23 Timber Ridge 3-party R072224 Agreement Agreement Relating to Development Agreement - Town of Vail Ordinance No. 9 Series of 2024, Authorizing the Conveyance of Property Memorandum 2024-07-23 Ordinance No. 9, Series of 2024, Emergency Ordinance Timber Ridge Property Conveyance 2024-07-23 Ordinance No. 9 Series of 2024 Exhibit A Timber Ridge Subdivision, Lot 1 Meeting agendas and materials can be accessed prior to meeting day on the Town of Vail website www.vail.gov. All town council meetings will be streamed live by High Five Access Media and available for public viewing as the meeting is happening. The meeting videos are also posted to High Five Access Media website the week following meeting day, www.highfivemedia.org. 2 Please call 970-479-2136 for additional information. Sign language interpretation is available upon request with 48 hour notification dial 711. 3 AGENDA ITEM NO. 4.1 Item Cover Page DATE:July 23, 2024 TIME:5 min. SUBMITTED BY:Stephanie Bibbens, Town Manager ITEM TYPE:Consent Agenda AGENDA SECTION:Action Items (6:10pm) SUBJECT:Resolution No. 39, 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 (6:10pm) SUGGESTED ACTION:Approve, approve with amendments, or deny Resolution No. 39, Series of 2024. PRESENTER(S):George Ruther, Housing Consultant VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Resolution No. 39 Memo Resolution No. 39, Series of 2024, Triumph 2nd Amended DA-A072224 2nd Amended and Restated Development Agreement Timber Ridge Village with Exhibits 2024-07-23 4 75 South Frontage Road West Housing Department Vail, Colorado 81657 970.479.2150 vailgov.com MEMORANDUM To: Vail Town Council From: George Ruther, Housing Consultant Russ Forrest, Town Manager Date: July 23, 2024 Re: Resolution No. 39, Series of 2024 – Second Amended and Restated Development Agreement - Timber Ridge Village I. Purpose On July 16, 2024, the Vail Town Council approved Resolution No. 35, Series of 2024, as presented. Resolution No. 35 authorizes the Town Manager to execute the Second Amended and Restated Development Agreement facilitating the development of the new Timber Ridge Village. To date, neither the Town of Vail, nor Triumph Development have signed the development agreement. The Vail Town Council and Triumph Development have discussed additional amendments to the agreement. The purpose of this agenda item is to hold a public hearing on a request for approval of Resolution No. 39, Series of 2024, a resolution of the Vail Town Council further approving a Second Amended and Restated development agreement between the Town of Vail and Triumph Timber Ridge, LLC, and authorizing the Town manager to execute the agreement on behalf of the Town. A copy of Resolution No. 39, Series of 2024, and the Second Amended and Restated Development Agreement have been attached for reference. This agenda items advances the critical actions identified in the Vail Town Council Action Plan, furthers the adopted housing goal of the Town of Vail, and aids Vail in realizing its vision to be the premier international mountain resort community and as a national leader in the delivery of housing solutions for its community residents. 5 Town of Vail Page 2 II. Amended Development Agreement The Timber Ridge Redevelopment Committee was tasked with negotiating a n amended development agreement with Triumph Timber Ridge, LLC, based upon the input and direction received from the Vail Town Council. The additional amendments to the amended and restated development agreement include: • Section 4(g) - The required minimum threshold of fully executed purchase and sale agreements has been amended to $97M. The Town and Lender thresholds now match. • Section 7(d)(i) – The Town will acquire any remaining homes in Buildings A, B, and E/F. The total value of acquisition remains at $25,449, 948. This change ensures that Buildings A & B are sold out upon completion. • Section 8(b)(i) - The split of net sales proceeds amongst the parties has been amended from 70% - 30% to 80% - 20%. As a result, the Town’s financial contribution will be reimbursed more quickly. There is no change to the total amount of the town’s contribution. • Section 9(b) – Change $116,000,000 to $97,000,000. This is a typo. No other amendments are proposed. III. Recommendation The Timber Ridge Redevelopment Committee recommends the Vail Town Council approves Resolution No. 39, Series of 2024, as presented. The Agreement, as further amended, continues to achieve the adopted goals and objective of the Timber Ridge Village development. In doing so, the town staff and the developer will take the steps necessary to commence construction by no later than August 9, 2024. 6 Town of Vail Page 2 Redevelopment Goals and Objectives The following redevelopment goals and objectives were adopted by the Vail Town Council and will be used to guide future decision-making: • Seize the full opportunity - The redevelopment of the Timber Ridge Village Apartments will serve an integral role in strengthening the supply of deed-restricted homes in Vail by providing for a minimum of 200 dwelling units. • Deed-restricted homes are the highest priority - 100% of the new homes shall be deed-restricted for resident occupancy with preference granted to employees working at businesses in the Town of Vail. • Optimize this housing opportunity - Given the scarcity of developable land for deed- restricted homes in Vail, the density, height, and scale of the redevelopment shall be optimized within the parameters of the Town’s adopted land use regulations, building and fire codes, and other applicable code provisions. • Minimize the impacts of the short-term loss of homes- Construction of the redevelopment project shall not begin prior to the issuance of a certificate of occupancy for the Residences at Main Vail to minimize the negative impacts of vacating the Timber Ridge Village Apartments during construction. • A market study shall drive the program and design - Timber Ridge Village Apartments shall be redeveloped to meet the current and future housing needs of year - round and seasonal Vail residents based upon the findings and conclusions of an updated housing needs and demand market study. • Environmental stewardship is a community value – Environmental sustainability best practices shall be incorporated into the design, construction, and future operations of the new buildings including 100% electrification, solar array installation, car share program, beyond energy conservation code construction, water conservation measures, high efficiency systems, durable materials, etc. • Cost is a key consideration - Financial sustainability and fiscal responsibility are key considerations of the long-term affordability of the homes and operational/maintenance needs of the property owner. • Time is of the essence - Understanding the critical housing needs of the Vail community and Eagle River Valley as well as the importance of meeting the growing demands, the redevelopment of the Timber Ridge Village Apartments shall be completed within 24 months of its demolition. • Prioritize homes over cars - Due to its convenient location to the West Vail community commercial area and ease of access to the primary employment centers in Vail via public transit, emphasis shall be placed on optimizing the number of residential homes rather than maximizing the number of vehicles parking spaces. • Lead by example – The process and outcome of the redevelopment of the Timber Ridge Village Apartments shall exemplify leadership in delivering on housing and shall align with Vail’s place amongst leaders in the mountain resort communities. 7 7/22/20247/22/2024 C:\USERS\EASYPD~1\APPDATA\LOCAL\TEMP\BCL TECHNOLOGIES\EASYPDF 8\@BCL@240B1182\@BCL@240B1182.DOCX RESOLUTION NO. 39 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 Timber Ridge, LLC ("Triumph") executed a Development Agreement for the redevelopment of the Timber Ridge Apartments; WHEREAS, on May 7, 2024, the Town and Triumph executed the Amended and Restated Development Agreement for the redevelopment of the Timber Ridge Apartments (the "First Amended Agreement"); WHEREAS, the Town and Triumph 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 (the "Second Amended Agreement"). WHEREAS, on July 17, 2024, the Town Council approved a prior version of the Second Amended and Restated Development Agreement, but that version was not executed by either the Town or Triumph, and the Town Council now wishes to approve the attached version instead. 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 in substantially the form attached hereto, subject to final approval by the Town Attorney. Upon such approval, the Town Manager is authorized to execute the Second Amended 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 8 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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. 9 2 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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 $115,000,000. k. Net Sales Proceeds: with respect to each Unit, the gross sale price of the Unit less: (i) the amount required to be paid upon the sale with respect to any loans payable by Developer related to the Development and (ii) customary costs of sale of the Unit, including without limitation prepaid or prorated items, title company charges, closing costs, and other appropriate fees and expenses. 10 3 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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 11 4 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX or any installment thereof may cause a default by Developer under its construction 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 12 5 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX Substances Control Act, 15 U.S.C. § 2601, et seq.; the Clean Water Act, 33 U.S.C. § 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 $97,000,000, based on the values set forth in Exhibit G, attached hereto and incorporated by this reference. The total of $97,000,000 may include the Town Units (defined below) and Habitat Units. As set forth in the Tri- Party Agreement, Developer has caused Lender to provide the Town with the right to cure any default by Developer under the Loan. h. Reimbursement. As provided below, Developer shall reimburse the Town for the Reimbursement. i. Deposit Shortfall. In the event of any Deposit Shortfall, Developer shall provide funds to cover the Deposit Shortfall. 5. Construction. a. Schedule. Developer shall commence construction of the Development within 30 days after the closing of the Loan, and thereafter manage the schedule of construction of the Development and complete and deliver the Development to the Town in compliance with the schedule attached hereto as Exhibit E and incorporated herein by this reference (the "Schedule"). b. General Contractor. The construction contract with the general contractor has been approved by the Town. Developer is authorized to select a replacement general contractor, if necessary, at Developer’s discretion, but only after consultation with the Town. Any other material changes to the construction contract shall require the Town’s prior written approval. c. Warranty. Developer shall cause the general contractor to provide a one- year warranty to the buyers of the Units, commencing on the date of closing of the sale of each Unit. If the closing of the sale of a Unit occurs more than 90 days after issuance of a certificate of occupancy for such Unit, the one-year warranty shall be reduced one day for each day that closing occurs after such 90-day period. During the warranty period, Developer shall manage any work performed by the general contractor or any subcontractor under the warranty. 13 6 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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 14 7 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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 $25,449,948 worth of Units. The Town shall provide written notice to Developer of which Units the Town will purchase prior to the initial funding 15 8 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX of the Loan. At that time, the Town will agree to choose unsold units in priority of completion: Building A first and Building B second , Buildings E and F next, up to the amount of $25,449,948. 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 transfer an amount equal to 80% of the Net Sales Proceeds from the initial sale of each Unit to the Town and applied as repayment of the Cash Contribution, and the remaining 20% shall be retained by the Developer. This 80/20 split shall continue until Town has received $38,614,769; the total Cash Contribution. This 80/20 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 the Town has received the total Cash Contribution Developer will receive 100% of the Net Sales Proceeds until the Developer received $16,400,000. iii. Once Developer has received $16,400,000 from Net Sales Proceeds and the Town has received the total Cash Contribution, Developer shall transfer 100% 16 9 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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. iv. 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. 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 $97,000,000, 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 $97,000,000 may include the value of the Town Units, up to the maximum amount of $25,449,948. If the Agreement is terminated under this Section, the ownership of all plans, specifications, studies, reports and other documents related to the Development shall automatically transfer to the Town, at no cost. 17 10 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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. 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 18 11 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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. 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 19 12 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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 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. 20 13 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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. 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. 21 14 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX n. Legal Challenge. If a Legal Challenge occurs, this Agreement will remain in full force and effect through and until the 31st day following entry of a final, non- appealable order resolving such Legal Challenge, unless earlier terminated or modified by a written amendment signed by the Parties. If a Legal Challenge occurs, all deadlines and time requirements in this Agreement shall be tolled until such time as a final, non- appealable order resolving such Legal Challenge is entered. If a Legal Challenge successfully voids, enjoins, or otherwise invalidates this Agreement or a portion thereof, the Parties shall cooperate to cure the legal defect in a manner that most fully implements the intent and purpose of this Agreement; provided, however, that if the Parties do not enter into a written agreement to cure the defect, either Party may terminate this Agreement. WHEREFORE, the Parties have executed this Agreement as of the Effective Date. TOWN OF VAIL, COLORADO ________________________________ Russell Forest, Town Manager ATTEST: _________________________________ Stephanie Kauffman, Town Clerk TRIUMPH TIMBER RIDGE, LLC _______________________________ STATE OF COLORADO ) ) ss. COUNTY OF _______________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of __________________, 2024, by _________________________ as the _______________________ of Triumph Timber Ridge LLC. My commission expires: (S E A L) ________________________________ Notary Public 22 7/25/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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. 23 7/22/2024 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\2ND AMENDED AND RESTATED DEVELOPMENT AGREEMENT TIMEBR RIDGE VILLAGE FINAL VERSION 07232024.DOCX 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. 24 25 26 Timber Ridge Village 5/2/24 EXHIBIT B Triumph Development West Exhibit B : GMP documents GMP package of drawings as provided to Shaw Construction / Blue Corner Construction / Advanced Volumetric Alliance Drawings / specs prepared by the TRV design team:3/18/24 Pure Design Architects - Architecture Alpine Engineering - Civil IMEG Structural Engineers - structure PKMR Engineering - MEP Outside Design - landscaping Drawings sets Building A - Construction set Building B - Design Development set Building C - Design Development set Building D - Design Development set Building E - Design Development set Building F - Design Development set Building G - Design Development set Shaw Construction GMP Budget 4/18/24 Blue Corner Construction GMP Budget 4/17/24 Advanced Volumetric Alliance GMP Budget 4/17/24 Schofield Excavation - Abatement / Demo GMP Budget 4/19/24 27 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 28 1 7/11/2024 C:\USERS\MEFOS\DROPBOX\TIMBER RIDGE\TOV DEAL\SECOND AMENDED DA\EXHIBITS\DA EXHIBIT D - DEED RESTRICTION LANGUAGE TRV.DOCX 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 aft er 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 29 2 7/11/2024 C:\USERS\MEFOS\DROPBOX\TIMBER RIDGE\TOV DEAL\SECOND AMENDED DA\EXHIBITS\DA EXHIBIT D - DEED RESTRICTION LANGUAGE TRV.DOCX 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. 30 3 7/11/2024 C:\USERS\MEFOS\DROPBOX\TIMBER RIDGE\TOV DEAL\SECOND AMENDED DA\EXHIBITS\DA EXHIBIT D - DEED RESTRICTION LANGUAGE TRV.DOCX 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. 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. 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. 31 4 7/11/2024 C:\USERS\MEFOS\DROPBOX\TIMBER RIDGE\TOV DEAL\SECOND AMENDED DA\EXHIBITS\DA EXHIBIT D - DEED RESTRICTION LANGUAGE TRV.DOCX 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 32 5 7/11/2024 C:\USERS\MEFOS\DROPBOX\TIMBER RIDGE\TOV DEAL\SECOND AMENDED DA\EXHIBITS\DA EXHIBIT D - DEED RESTRICTION LANGUAGE TRV.DOCX 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: 33 6 7/11/2024 C:\USERS\MEFOS\DROPBOX\TIMBER RIDGE\TOV DEAL\SECOND AMENDED DA\EXHIBITS\DA EXHIBIT D - DEED RESTRICTION LANGUAGE TRV.DOCX 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. 34 7 7/11/2024 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. 35 Timber Ridge Village 7/11/24 EXHIBIT E Triumph Development West Begin Date End Date Notes Design and Entitlement Purchase Agreements / pricing options distributed to Businesses with reservations. PSA packages to Individuals as well.5/15/24 6/28/24 All purchasing contracts / building - residence location / pricing options sent to potential buyers Launch of the sales website for Timber Ridge Village 5/24/24 Launch of website with sales options (residence / parking) Triumph Development West to meet with potential buyers and continue outreach to community on available residences.5/17/24 on-going Executed contracts and final non-refundable deposits due Estimated Start Abatement / Demo phase 30 days following closing of Construction loan Mobilization of contractors for this first phase of work Start of grading / site work 90 days following start of abatement / demo Start of earthwork / utilities / excavation IF start date for Abatement / demo move, these following dates will be affected. Estimated closing week for Residences in Building A 12/30/25 1/30/26 Scheduled close dates for Residence in Building A Estimated closing week for Residences in Building B 4/1/26 4/24/26 scheduled close dates for Residence in Building B Estimated closing week for Residences in Buildings E / F 7/6/26 9/18/26 Scheduled close dates for Residence in Buildings E / F Estimated closing week for Residences in Buildings C / D / G 7/24/26 9/18/26 Scheduled close dates for Residence in Building C / D / G 36 Timber Ridge Village 7/11/24 EXHIBIT F Triumph Development West Exhibit F : Town of Vail purchase of residences Per 2nd amended Development Agreement, 7d. Town of Vail has agreed to purchase $25,449,948 of residences at Timber Ridge Village. The residences equally this amount will be selected prior to construction loans initial contribution. 37 38 39 40 41 42 43 44 Timber Ridge Village 7/11/24 EXHIBIT H Triumph Development West Exhibit G : Insurance - Triumph to supply Commercial general liability insurance as an Owner Controlled Insurance Policy (the "OCIP") Fire and extended coverage insurance (the "Builder's Risk") Pollution insurance - independently or through contractors 45 AGENDA ITEM NO. 4.2 Item Cover Page DATE:July 23, 2024 TIME:15 min. SUBMITTED BY:Stephanie Bibbens, Town Manager ITEM TYPE:Consent Agenda AGENDA SECTION:Action Items (6:10pm) SUBJECT:Resolution No. 40, Series of 2024, A Resolution Approving the Agreement Related to Development Agreement and Town Financial Contribution with First Bank and Triumph Timber Ridge, LLC Regarding the Development of Timber Ridge Village (6:15pm) SUGGESTED ACTION:Approve, approve with amendments, or deny Resolution No. 40, Series of 2024. PRESENTER(S):George Ruther, Housing Consultant VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Tri-party Agreement Memorandum 2024-07-23 Timber Ridge 3-party R072224 Agreement Agreement Relating to Development Agreement - Town of Vail 46 75 South Frontage Road West Housing Department Vail, Colorado 81657 970.479.2150 vailgov.com MEMORANDUM To:Vail Town Council From: George Ruther, Housing Consultant Russ Forrest, Town Manager Matt Mire, Town Attorney Date: July 23, 2024 Re:Resolution No. 40, Series of 2024, a resolution approving a tri-party agreement between the Town of Vail, FirstBank, and Triumph Development West, LLC I.Purpose The purpose of this memorandum to provide an overview of the Tri-Party Agreement between the Town of Vail, FirstBank, and Triumph Development West. The purpose of the Agreement is to bind the Parties to the terms and conditions by which FirstBank will close and fund a $115M construction loan to facilitate the development of Timber Ridge Village. The primary objective of the agreement is to prescribe the terms and conditions whereby the development is completed, and the construction loan is repaid, in the event the borrower is in default with the terms of the loan documents. The presence of the agreement, while complex in scope and requirements, lessens the financial risks of the parties. II.Background Pursuant to the First Amended and Restated Development Agreement between the Town of Vail and Triumph Development West, Triumph is obligated to secure construction loan financing necessary to complete the development as approved. The construction loan terms are subject to the approval of the Town of Vail. To that end, Triumph is proposing to secure the necessary financing locally through FirstBank. FirstBank, along with two other local construction lending partners, has committed to close and fund the $115M construction loan. To do so, however, given the participation of the Town as an equity partner in the development deal structure, FirstBank is requiring the mutual execution of a tri-party agreement. The tri-party agreement 47 Town of Vail binds the parties to the terms and conditions by which FirstBank will close and fund the construction loan. Of significance, the tri-party agreement addresses matters critical to the success of the construction lending on the development and its completion. The tri-party agreement was drafted with the development deal structure in mind. For reference, the development deal structure approved by the Vail Town Council requires a substantial “first in” equity investment of the Town followed by construction lending from FirstBank to complete the development. As approved, the Town will invest not more than $40.5M of equity funding into the development. This equity will fully fund the first $40.5M of investment made into the total development cost. Once the Town’s equity funds are fully expended, FirstBank shall fund the remainder of the development cost with traditional construction financing. Per the adopted development goals and objectives for the new Timber Ridge Village, a primary objective was to identify a development deal structure which required little to no financial subsidy to be contributed to the development. To that end, the development deal is structured such that all parties are paid back for their investment and contribution to the development. III.Tri-Party Agreement Overview The tri-party agreement covers a wide range of topics relating to the funding of the development. The following topics are covered in the draft tri-party agreement: Effective Date o The tri-party agreement takes effect and becomes enforceable upon closing of the construction loan. Collateral Assignment of the Vested Property Rights and the Rights of the Development Agreement. o FirstBank will close on the construction loan prior to the start of construction. o The title to the property transfer to Triumph upon the closing of the construction loan. o FirstBank will record a deed of trust on the property at the time of closing. o The Town’s deed restriction and development agreement will be recorded prior to the deed of trust. o The development agreement must survive foreclosure. o The property, vested property rights, and development agreement shall be collateral assigned to the construction loan. o As collateral, in the event of default, the vested property rights and development agreement obligations transfer with the title. o The development agreement may be assigned, with assumptive rights, in the event of default. Disbursement of the Town’s Financial Contribution. o The Town will fund a separate disbursement account at FirstBank. 48 Town of Vail o The amounts of the future deposits are intended to only cover monthly construction draw applications. For investment purposes, the Town will not make a lump sum payment of its financial contribution. o The Town’s depositing of funds will serve as authorization for disbursement of the funds by FirstBank. o For consistency and quality assurance purposes, the FirstBank will administer the disbursement process for the duration of the development. o The Town’s financial contribution shall not exceed $40,523,046. Deed of Trust Subordination to the Deed Restriction. o This is a non-negotiable item. Default Provisions Under the Loan Documents and Development Agreement. o In the event of a default during the Town’s funding of the development, the Town maintains a reversionary interest in the property. o The reversionary interest terminates once FirstBank funds the first dollar of the construction loan. FirstBank cannot fund the construction loan until after the Town has expended the Town’s financial contribution. o The Town and FirstBank each maintain a 120-day right to cure period in the event of a default on the construction loan with notice. o The Town maintains the right to pay off the loan and assume the development. o The Town is obligated to “standstill” on its enforcement of the development agreement upon notice of foreclosure by FirstBank. o The Town has limited rights during the standstill period. o The Town maintains the ability to access the site and complete any site preservation and improvements protection with prior consent from FirstBank. o In the event of default or sale through receivership, FirstBank will agree to consult with the Town. o Consultation includes selection of a new developer that meets certain requirements of the Town (e.g. attainable housing experience, mountain resort experience, Colorado-based, large-scale modular experience). Town Representations Stipulating to Certain Facts. Amendments and Termination of the Development Agreement. o The Town and FirstBank each have consensual rights to amend and/or terminate the development agreement. o Non-material changes to the development agreement, as defined by the Vail Town Code, can be made without the consent from FirstBank. Cross Default Provision. o A default of the development agreement shall be a default of the tri-party agreement and vice versa. IV.Discussion Items At the time of the drafting of the memorandum, two issues still needed to be addressed. Those two issues are summarized below: 49 Town of Vail Section 7(b)(iii) – The Town and the Lender each need the right to cure in the event of a default of the loan. In this case, each is afforded 120 days following proper notice. The lender is requesting a change to the section whereby the Notice of the Loan Default and the Notice of Default to the Town are concurrent and run contemporaneously. Language has been drafted and is under review by the parties. Section 18h - Acknowledgement that the Town’s governmental powers shall remain in effect during the term of the Agreement. The parties continue to discuss the appropriate form of language to include in the agreement relevant to this acknowledgement. To that end, parties are considering the following revisions below to the two sections: 50 Town of Vail The tri-party agreement needs to be executed between the parties prior to the start of construction. At this time, subject to Triumph meeting threshold sales obligations, FirstBank is preparing for a construction loan closing the first week of August. It has been contemplated that the agreement would be executed at the time of the loan closing. V.Recommendation The Timber Ridge Redevelopment Committee recommends that the Vail Town Council approves Resolution No. 40, Series of 2024, as presented. With further discussion, it is without doubt the parties will reach mutual agreement on the two sections highlighted above. Any further changes needed to reach mutual agreement will not materially affect the effectiveness of the agreement and shall be in a form approved by the town attorney. 51 7/23/2024 C:\USERS\EASYPD~1\APPDATA\LOCAL\TEMP\BCL TECHNOLOGIES\EASYPDF 8\@BCL@5C0BDE12\@BCL@5C0BDE12.DOCX RESOLUTION 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. 52 7/23/2024 C:\USERS\EASYPD~1\APPDATA\LOCAL\TEMP\BCL TECHNOLOGIES\EASYPDF 8\@BCL@5C0BDE12\@BCL@5C0BDE12.DOCX INTRODUCED, READ, APPROVED AND ADOPTED this 23 rd day of July, 2024. ___________________________________ Travis Coggin, Mayor ATTEST: _____________________________ Stephanie Kauffman, Town Clerk 53 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. 54 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, the Town shall not declare a default of the Development Agreement 55 125218243.8 3 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. (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 56 125218243.8 4 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 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. 57 125218243.8 5 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, 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. 58 125218243.8 6 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 (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 59 125218243.8 7 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 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 60 125218243.8 8 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 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. 61 125218243.8 9 (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] 62 [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 63 [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 64 [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 65 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 66 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. 67 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: 68 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] 69 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] 70 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 71 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 72 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. 73 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. [Signature on Following Page] 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 . 74 AGENDA ITEM NO. 5.1 Item Cover Page DATE:July 23, 2024 TIME:5 min. SUBMITTED BY:George Ruther, Housing ITEM TYPE:Ordinance AGENDA SECTION:Public Hearings (6:30pm) SUBJECT:Ordinance No. 09, Series of 2024, An Emergency Ordinance Approving the Conveyance of Real Property Owned by the Town of Vail, Described as Amended Final Plat, Lot 1, Timber Ridge Subdivision SUGGESTED ACTION:Approve, approve with amendments, or deny emergency Ordinance No. 09, Series of 2024. PRESENTER(S):George Ruther, Housing Consultant VAIL TOWN COUNCIL AGENDA ITEM REPORT ATTACHMENTS: Ordinance No. 9 Series of 2024, Authorizing the Conveyance of Property Memorandum 2024-07-23 Ordinance No. 9, Series of 2024, Emergency Ordinance Timber Ridge Property Conveyance 2024-07-23 Ordinance No. 9 Series of 2024 Exhibit A Timber Ridge Subdivision, Lot 1 75 75 South Frontage Road West Housing Department Vail, Colorado 81657 970.479.2150 vailgov.com MEMORANDUM To: Vail Town Council From: George Ruther, Housing Consultant Russ Forrest, Town Manager Matt Mire, Town Attorney Date: July 23, 2024 Re:Emergency Ordinance No. 9, Series of 2024 – An Emergency Ordinance Approving the Conveyance of Real Property Owned by the Town of Vail, Described as Amended Final Plat, Lot 1, Timber Ridge Subdivision I.Purpose The purpose of this agenda item is to hold a public hearing on an emergency ordinance approving the conveyance of real property owned by the Town of Vail to facilitate the development of the new Timber Ridge Village. An emergency ordinance is needed to maintain the desired development schedule and fulfill the intent of the approved development agreement. A copy of Ordinance No. 9, Series of 2024 has been attached for reference. This agenda items advances the critical actions identified in the Vail Town Council Action Plan, furthers the adopted housing goal of the Town of Vail, and aids Vail in realizing its vision to be the premier international mountain resort community and as a national leader in the delivery of housing solutions for its community residents. II.Ordinance No. 9, Series of 2024 The Vail Town Council has approved Resolution No. 39, Series of 2024 and Resolution No. 40, Series of 2024. Each resolution serves to advance the goals and objectives of completing the new Timber Ridge Village development. 76 Town of Vail Page 2 Pursuant to the Vail Town Charter, the conveyance of real property owned by the Town of Vail shall be subject to an approving ordinance of the Vail Town Council. Given the desired schedule of the new Timber Ridge Village development, an emergency ordinance is required. An emergency ordinance requires a single reading at a public hearing of the Vail Town Council. As contemplated by the development agreement approved by Resolution No. 39, the title to Lot 1, Timber Ridge Subdivision shall be conveyed to the developer upon closing of the construction loan. It is likely that the loan will be closed prior to the August 6, 2024 Vail Town Council meeting. III.Recommendation The Timber Ridge Redevelopment Committee recommends the Vail Town Council approves Ordinance No. 9, Series of 2024, as presented. The Ordinance achieves the adopted goals and objective of the Timber Ridge Village development. In doing so, the town staff and the developer will take the steps necessary to commence construction by no later than August 9, 2024. Redevelopment Goals and Objectives The following redevelopment goals and objectives were adopted by the Vail Town Council and will be used to guide future decision-making: Seize the full opportunity - The redevelopment of the Timber Ridge Village Apartments will serve an integral role in strengthening the supply of deed-restricted homes in Vail by providing for a minimum of 200 dwelling units. Deed-restricted homes are the highest priority - 100% of the new homes shall be deed-restricted for resident occupancy with preference granted to employees working at businesses in the Town of Vail. Optimize this housing opportunity - Given the scarcity of developable land for deed- restricted homes in Vail, the density, height, and scale of the redevelopment shall be optimized within the parameters of the Town’s adopted land use regulations, building and fire codes, and other applicable code provisions. Minimize the impacts of the short-term loss of homes- Construction of the redevelopment project shall not begin prior to the issuance of a certificate of occupancy for the Residences at Main Vail to minimize the negative impacts of vacating the Timber Ridge Village Apartments during construction. A market study shall drive the program and design - Timber Ridge Village Apartments shall be redeveloped to meet the current and future housing needs of year- round and seasonal Vail residents based upon the findings and conclusions of an updated housing needs and demand market study. Environmental stewardship is a community value – Environmental sustainability best practices shall be incorporated into the design, construction, and future operations of the new buildings including 100% electrification, solar array installation, car share program, beyond energy conservation code construction, water conservation measures, high efficiency systems, durable materials, etc. Cost is a key consideration - Financial sustainability and fiscal responsibility are key considerations of the long-term affordability of the homes and operational/maintenance needs of the property owner. 77 Town of Vail Page 2 Time is of the essence - Understanding the critical housing needs of the Vail community and Eagle River Valley as well as the importance of meeting the growing demands, the redevelopment of the Timber Ridge Village Apartments shall be completed within 24 months of its demolition. Prioritize homes over cars - Due to its convenient location to the West Vail community commercial area and ease of access to the primary employment centers in Vail via public transit, emphasis shall be placed on optimizing the number of residential homes rather than maximizing the number of vehicles parking spaces. Lead by example – The process and outcome of the redevelopment of the Timber Ridge Village Apartments shall exemplify leadership in delivering on housing and shall align with Vail’s place amongst leaders in the mountain resort communities. 78 ORDINANCE NO. 9 Series of 2024 AN EMERGENCY ORDINANCE APPROVING THE CONVEYANCE OF REAL PROPERTY OWNED BY THE TOWN OF VAIL, DESCRIBED AS AMENDED FINAL PLAT, LOT 1, TIMBER RIDGE SUBDIVISION WHEREAS, the Town and Triumph Timber Ridge, LLC (“Developer”) are parties to a certain Second Amended and Restated Development Agreement, dated July 23, 2024 (the “Agreement) which sets forth the terms for the development of Timber Ridge Village; 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 pursuant to the terms of the Agreement; and WHEREAS, it is necessary to pass this ordinance as an emergency measure to meet certain financing deadlines which the Town does not control. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. The sale of the Property is hereby authorized and approved by the Town Council pursuant to the terms of the Agreement. The Town Manager is hereby authorized to execute and deliver, on behalf of the Town, a special warranty deed for the sale of the Property and to take whatever steps are necessary to complete the sale of the Property to meet the Town's obligation pursuant to the Agreement. Section 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. Based upon all of the foregoing, the Town Council finds and declares that there is reasonable justification for the adoption of this Ordinance as an emergency measure, that this Ordinance is necessary for the immediate preservation of the public welfare, and that this Ordinance shall therefore take effect immediately upon adoption as provided by Section 4.11 of the Vail Home Rule Charter. Section 4. The Council hereby finds, determines and declares that this Ordinance is 79 necessary and proper for the health, safety and welfare of the Town of Vail and the inhabitants thereof. INTRODUCED, READ, PASSED, ADOPTED AS AN EMERGENCY MEASURE BY THE UNANIMOUS VOTE OF COUNCIL MEMBERS PRESENT OR A VOTE OF FIVE (5) COUNCIL MEMBERS, WHICHEVER IS LESS, AND ORDERED PUBLISHED THIS 23rd DAY OF JULY 2024. Travis Coggin, Mayor ATTEST: Stephanie Kauffman, Town Clerk 80 81 82