Loading...
HomeMy WebLinkAboutPredevelopment Agreement Signedr PREDEVELOPMENT AGREEMENT THIS PREDEVELOPMENT AGREEMENT Agreement is made this day ofoU2009theEffectiveDatebyandbetweentheTownofVailColoradoa Colorado home rule municipality the Town Timber Ridge Affordable Housing Corporation a Colorado nonprofit corporation the Corporation and Vail Timber Ridge LLC a Nevada limited liability corporation Developer individually aParty and collectively the Parties WHEREAS the Corporation is the owner of certain real property more particularly described in Exhibit A attached hereto and incorporated herein by this reference the Property WHEREAS on December 18 2008 the Town issued a request for proposals RFP seeking qualified individuals or organizations to develop the Properiy for employee housing WHEREAS Developer submitted a response to the RFP and the Town selected Developers response to the RFP as the best option for development of the Property for employee housing WHEREAS to accomplish the development of the Property for employee housing the Corporation would retain fee ownership of the Property but would provide Developer with a long term ground lease of the Property and WHEREAS the Parties wish to establish terms of the predevelopment process and parameters of the eventual development of the Property for employee housing NOW THEREFORE for and in consideration of the mutual promises and covenants contained herein the sufficiency of which is mutually acknowledged the parties hereto agree as follows 1 Exclusive Option to Develop During the term of this Agreement and subject to all of its terms Developer shall have the exclusive option to develop the Property for employee housing 2 Parameters of Development The eventual development of the Property for employee housing Development shall be subject to the execution of a mutually acceptable development improvement agreement DIA The Development shall meet the following parameters which may be further detailed in the DIA a Except as otherwise expressly provided in this Agreement and the DIA the Development shall at all times be subject to the Vail Town Code b The Town shall provide the Developer with a longterm ground lease of the Properiy with an initial term of sixty 60 years plus three 3 options to renew for a period of ten 10 years each for no additional compensation with each renewal option contingent upon the condition that all improvements on the Site are in good condition and the buildings on the Site are habitable Ground Lease All rentals due under the Ground Lease will be reflected by a onetime upfront payment of eleven million dollars 11000000 due at the Ground Lease Closing All improvements constructed on the Property shall be owned by Developer provided that to the extent necessary for tax purposes and mutually agreed by the l l112009 IIII C IDOCUME I MMIREIGOCALSIITEMPLYPGRPWISEI TMBER RDGEPREDA6DOC T C K O O O 0 0 2 3 8 2 Parties Developer may grant to the Town or its housing authority a onepercent 1 interest in such improvements c Developer shall conduct at least one preapplication conference with the Town Council the Development Review Board DRB and the Planning and Environmental Commission PEC prior to submitting its initial application for the Development Such preapplication conference is an opportunity for Developer to hear comments from the Town Council the DRB and the PEC concerning the Development but the Town shall not be bound by any such comments and any reliance on such comments shall be at Developersown risk d Developer shall submit to the Town the initial application for the Development on or before April 1 2010 The application must be signed by the Town and the Corporation because the Corporation will remain the fee owner of the Property and the Town and the Corporation must consent to the Development application All applications for the Property shall be processed in accordance with the Vail Town Code e The Development shall include three hundred fiftynine 359 Employee Housing Units capable of housing five hundred seventy 570 beds for employees as the term employee is defined in Section 1222 of the Vail Town Code It is acknowledged by the Parties that Developer has relied on this number of Employee Housing Units and beds in calculating its financing for the Development and therefore the number of Employee Housing Units and beds shall not be increased or reduced by Developer or the Town Council at any time except by mutual written agreement of Developer and the Town f Parking for the Development shall be determined pursuant to the Vail Town Code g At no time shall the Development eliminate access to or the ability to safely occupy or operate the Timber Ridge housing units currently existing on the real property adjacent to the Property as more particularly described on Exhibit B attached hereto and incorporated herein by this reference the Adjacent Property h The Town shall refund all amounts paid by Developer for the Towns construction and building materials use tax applicable to the Property within ten 10 days of the Towns receipt thereof i The Town agrees to waive all demolition and building permit fees for permits issued by the Town in connection with the Development j The Town shall impose typical and customary plan review fees for review of all plans for the Property and Developer shall be responsible for payment of such fees as required by Town regulations k The Town shall use its best efforts to help Developer obtain an exemption from property taxes for the Development from all taxing authorities To the extent the 2 11l 12009 CIDOCUMEIIMMREILOCALSIITEMPLYPGRPWISEITIMBERRDGEPREDIA 6DOC Property is not taxexempt the Town shall refund any property taxes net of the Eagle County Treasurersfee collected by the Town on the Properiy or improvements thereon l If Developer wishes to use federal funds for the Development it shall be Developerssole responsibility to procure such funds m Developer shall be responsible for construction of any public improvements necessary for the Development including streets sidewalks and utilities including relocating the gas line currently located in the Frontage Road provided however the Town shall reimburse Developer for the costs of the improvements to the Frontage Road required for the Development including a deceleration lane The timing of such reimbursement shall be addressed in the DIA 3 Ground Lease Closin The Ground Lease Closing shall occur within thirty 30 days of final approval of all of Developers applications for the Development and satisfaction of all conditions for Development financing If the Town or the Corporation fails to execute the Ground Lease at the Ground Lease Closing the Developer shall be entitled to the remedies specified in Section 6 hereof At the Ground Lease Closing the Town the Corporation and the Developer shall execute a deed restriction stating that i the Property shall include three hundred fiftynine 359 Employee Housing Units capable of housing five hundred seventy 570 employee beds in perpetuity unless the number of beds or Employee Housing Units is modified by mutual agreement of the parties pursuant to Section 2e hereof and ii such beds may be leased to nonemployees in the event not leased by employees pursuant to the terms of the Ground Lease 4 Town and Corporation Obliat ions a During the term of this Agreement the Town and the Corporation shall work with Developer and the Colorado Department of Transportation CDOT to resolve roadway issues related to the Development b The Town and the Corporation will cause an updated title commitment for the Property and the Adjacent Property to be delivered to Developer within thirty 30 days of the date of this Agreement The Town and the Corporation shall amend the deed restriction currently existing on the Property to allow for the Development and the Town shall issue a corrective deed to the Corporation removing the restrictive covenants existing on the Property c The Town and the Corporation shall grant to Developer for the benefit of the Property easements across the Adjacent Property that are mutually determined to be necessary for the Development including without limitation utility drainage and access easements provided however no such easements will have a material adverse effect on the operation of the Adjacent Property d Except as otherwise provided in this Agreement the Town and the Corporation shall cause any existing liens and encumbrances on the Property to be released in order to facilitate Developersfinancing 3 l l2009 C IDOCUMEIMMIREILOCALSIITEMPLYPGRPWISEITIMBER RDGEPREDIA 6DOC e The Town and the Corporation shall obtain the release of any master lease on the Property and deliver the Property free of any leases or parties in possession on the date of the Ground Lease Closing f The Town Corporation and Developer will negotiate and execute a commercially reasonable form of Ground Lease which will reflect necessary provisions for Developersfinancing g The Town and the Corporation shall contribute to Developer for purposes of the Development any tap fee credits attributed to the Property as of the Effective Date of this Agreement h Within thirty 30 days of the Effective Date the Town shall commission a study to determine the total cost of the rock fall mitigation necessary for the Development and Developer shall reimburse the Town for fifty percent 50 of the cost of such study within ten 10 days of receipt of an invoice from the Town The details regarding payment for rock fall mitigation costs shall be set forth in the DIA i The Town shall waive traffic impact fees associated with the Development j If necessary the Town shall subordinate its existing indebtedness on the Property to the Ground Lease and construction financing for the Development k The Town and the Corporation shall negotiate in good faith with Developer for an exclusive option to develop the Adjacent Property on terms similar to the final structure of this Development to be more particularly set forth in a commercially reasonable form of option agreement The term of such option shall be five 5 years from the issuance of the first certificate of occupancy for the Development 1 The Town shall not amend applicable development standards subdivision regulations or zoning regulations in any manner that has a material adverse effect on the scope or parameters of the Development 5 Due Dili During the term of this Agreement Developer shall conduct all due diligence necessary to determine whether the Property is suitable for the Development at Developerssole cost 6 Term Termination and Breach a This Agreement shall commence upon the Effective Date and terminate two 2 years thereafter provided that either Pariy may terminate this Agreement earlier than such date upon thirty 30 days written notice to the other Parties b In the event of a breach by a Party to this Agreement the nonbreaching Party will provide written notice of each breach to the breaching Party and the breaching Party will have a period of thirty 30 days from receipt of such notice in which to cure such breach provided that if such breach would reasonably be expected to take longer than thirty 30 l ll 12009 C IDOCUMEIMM REILOCALSITEMPIXPGRPWISEITIMBER RDGEPREDA6DOC f A i days to cure the breaching party may have an additional period to cure as may be reasonably necessary provided such cure is promptly commenced and diligently prosecuted to completion c In the event of an uncured breach by Developer and a termination of this Agreement by the Town or the Corporation as a result of such breach Developer shall lose the option set forth in Section 1 hereof and the Town and the Corporation shall have no further obligation to Developer d In the event of a termination of this Agreement due to any of the following four events i an uncured breach by the Town or the Corporation ii a termination by the Town or the Corporation without cause iii the inability of the Town to close on the Ground Lease ariva unilateral change by the Town in the number of Employee Housing Units or beds that is not agreed to by Developer the Town shall reimburse Developer for its actual outofpocket expenses incurred for thirdparty consultants for architectural and engineering services in connection with the Development incurred from the Effective Date through the date of termination uncured breach or the Ground Lease Closing whichever occurs first up to a maximum amount of one million dollars 1000000 subject to the submission to the Town of actual invoices proving such costs Such outofpocket costs shall not include any fees for legal services or salaries for any employees of Developer 7 Costs Except as otherwise set forth herein each Party shall be responsible for its own costs under this Agreement 8 Modification This Agreement may only be modified by subsequent written agreement of the Parties 9 Inte ran This Agreement and any attached exhibits constitute the entire Agreement between Developer and the Town superseding all prior oral or written communications 10 Binding Effect This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs successors and assigns 11 Severabilitv 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 If any provision of this Agreement is capable of two constructions one of which would render the provision void and the other which would render the provision valid then the provision shall have the meaning which renders it valid 12 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 13 Assi nment 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 5 2009 C IDOCUMEIIMMIREILOCALSIITEMPLYPGRPWISEITMBERRDGE PREDA 6DOC 14 Recordation This Agreement shall be recorded in the real estate records of Eagle County and shall be a covenant running with the Property 15 Title and Authoritv Developer expressly warrants and represents to the Town that the undersigned individuals have full power and authority to enter into this Agreement Developer and the undersigned individuals understand that the Town is relying on such representation and warranty in entering into this Agreement 16 Third Parties There are no intended thirdparty beneficiaries to this Agreement 17 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 18 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 WHEREFORE the parties hereto have executed this Agreement on the day and year first above written TO OF VAIL COLORADO St emler Town Manager ATTES L r ei onaldson Town Clerk C1 OF APPROVED A O F RM s SEAL Ma Mire Town Attorney CotoRPd 1112009 C IDOCUMEIIMM RDCEPREDIA 6DOC J TIMBER RIDGE AFFORDABLE HOUSING CORPO TION B Name S Its c STATE OF COLORADO ss COUNTY OF a The foregoing instrument was subscribed sworn to and acknowledged before me this I day of 1over bP 2009 by ScA r Z ex1 as the of Timber Ridge Affordable Housing Corporation as9NeMy commission expires pZ I Z I Zp U a9 L lr p A R Y ary Pu i N p U 8 LGT VAIL TIMBER RIDGE OF yaa B Name n te Ga Its 1 rez FiS STATE OF CB9 ss COUNTY OF iS The for oing instrument was subscribed sworn to and acknowled ed before me this day of 2snlQI 2009 by x C ocl as the tYcru of Vail Timber Ridge LLC My commission expires S E A L No ry Publ c SOFIA CERECERES NOTAAY PUBLIC tn and tor the Stae o1 Tersd My cwnnMSSipnBpiei a 0412013 1l I1009 C IDOCUMEIIMM REILOCALSlITEMPLYPGRPWISEITIMBER R1DGE PREDIA 6DOC l a y D G O N C b y p V G LL id ONteyAGvO K S rkdW3u 4 ai 3 S Q Nl Lv K k aRaxIOc0yopaCcaoc3sp c3a3auxc3La O Q W W y NeiFspoy3La00ygYov0mv J N N 0 O y L C 0 C RXmraiy3axaRnQa33onoRra4LoEuoaoSK O F o G ai r Aoacep l 9 0 a w a W o g 87R s o Xg56ffi e g h i gbffi r tWN l @ a m a1 c U L o O 9 c b U y0 g yozW rbar so1e q s A w 4vir0sR 6 p 3 a hoipOZvaW g 4 v m n o PaGh OO O o X a W Q Z v aN V Tcu 3 W V mSNNOQ xa F 4EQSdi H vB N a b oQ a