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HomeMy WebLinkAbout2025-39 A Resolution Approving a Funding Agreement between the Vail Mountain Hockey Club (VMHC) and the Town of VailRESOLUTION NO. 39 Series of 2025 A RESOLUTION APPROVING A FUNDING AGREEMENT BETWEEN THE VAIL MOUNTAIN HOCKEY CLUB (VMHC) AND THE TOWN OF VAIL WHEREAS, VMHC intends to construct and install a semi-permanent tent structure at the Eagle County Fairgrounds to house one sheet of ice to be operated by the Vail Recreation District; and WHEREAS, the Town desires to participate in funding a portion of the tent structure by contributing to acquisition of the tent Structure by VMHC, subject to partial reimbursement from VMHC, as set forth in the Funding Agreement, attached hereto as Exhibit A and incorporated herein by this reference (the “Agreement”). NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Town Council hereby approves the Agreement in substantially the same form as attached hereto as Exhibit A, and in a form approved by the Town Attorney, and authorizes the Town Manager to execute the Agreement on behalf of the Town. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Vail held this 19th day of August 2025. _________________________ Travis Coggin, Mayor ATTEST: Stephanie Kauffman, Town Clerk 8/20/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VMHC_FUNDING-CLEAN___002_.DOCX FUNDING AGREEMENT THIS FUNDING AGREEMENT (the "Agreement") is made and entered into this _____ day of ____________, 2025 (the "Effective Date"), by and between the Town of Vail, a Colorado home rule municipal corporation with an address of 75 South Frontage Road, Vail, CO 81657 (the "Town") and the Vail Mountain Hockey Club, a __________ with an address of ___________________, CO ______ ("VMHC") (each a "Party" and collectively the "Parties"). WHEREAS, VMHC intends to construct and install a semi-permanent tent structure (the "Tent") at the Eagle County Fairgrounds to house one sheet of ice to be operated by the Vail Recreation District, as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (the "Project"); and WHEREAS, the Town desires to participate in funding a portion of the Project by contributing to acquisition of the Tent by VMHC, subject to partial reimbursement from VMHC. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I. INITIAL PROJECT FUNDING A. Within 10 days of the Effective Date, the Town shall provide $156,000 to VMHC to be used exclusively for the Tent (the "Initial Funding"). B. Upon execution of a mutually acceptable operations plan, the Town shall provide an additional $300,000 to VMHC to be used exclusively for acquisition of the Tent (the "Additional Funding"), provided that the Additional Funding shall not be paid until the Tent has been scheduled for delivery to the Eagle County Fairgrounds. II. VMHC'S OBLIGATIONS A. Reimbursement. VMHC shall reimburse the Town the amount of $300,000 (the "Reimbursement") within 5 years of the Effective Date. The Reimbursement payments shall be made as described in Exhibit B, attached hereto and incorporated herein by this reference. B. Books and Records. VMHC shall maintain all books and records related to the Project for public inspection, including, without limitation, financial statements. Upon request by the Town or its agent, VMHC shall provide evidence of all costs and expenses related to the Project. C. Applicable Law. VMHC shall at all times comply, and cause its subcontractors to comply, with all applicable law, including all federal, state and local statutes, regulations, ordinances, decrees and rules relating to the emission, discharge, release or threatened release of a hazardous material into the air, surface water, groundwater or land, the manufacturing, processing, use, generation, treatment, storage, 2 8/20/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VMHC_FUNDING-CLEAN___002_.DOCX disposal, transportation, handling, removal, remediation or investigation of a hazardous material, and the protection of human health and safety, including without limitation the following, as amended: the Comprehensive Environmental Response, Compensation and Liability Act; the Hazardous Materials Transportation Act; the Resource Conservation and Recovery Act; the Toxic Substances Control Act; the Clean Water Act; the Clean Air Act; the Occupational Safety and Health Act; the Solid Waste Disposal Act; the Davis Bacon Act; the Copeland Act; the Contract Work Hours and Safety Standards Act; the Byrd Anti-Lobbying Amendment; the Housing and Community Development Act; and the Energy Policy and Conservation Act. D. Accessibility. VMHC shall comply with the accessibility standards for an individual with a disability adopted by the State Office of Information Technology pursuant to C.R.S. § 24-85-103, and shall indemnify, hold harmless and assume liability on behalf of the Town and its officers, employees, agents and attorneys for all costs, expenses, claims, damages, liabilities, court awards, attorney fees and related costs, and any other amounts incurred by the Town in relation to VMHC's noncompliance with such accessibility standards as a result of the Project. III. TERM This Agreement shall commence on the Effective Date, and shall continue until the total Reimbursement has been received by the Town. Section VI shall survive termination of this Agreement. V. INSURANCE A. VMHC agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by VMHC pursuant to this Agreement. At a minimum, VMHC shall procure and maintain, and shall cause any subcontractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. B. Such insurance shall be in addition to any other insurance requirements imposed by law. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims-made policy, the necessary retroactive dates and extended 3 8/20/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VMHC_FUNDING-CLEAN___002_.DOCX 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 VMHC. VMHC shall be solely responsible for any deductible losses under any policy. C. VMHC shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. VI. INDEMNIFICATION VMHC agrees to indemnify and hold harmless the Town and its officers, insurers, volunteers, representatives, 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, 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 VMHC, any subcontractor of VMHC, or any officer, employee, representative, or agent of VMHC, or which arise out of a worker's compensation claim of any employee of VMHC or of any employee of any subcontractor of VMHC. VMHC's liability under this indemnification provision 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 VMHC, any subcontractor of VMHC, or any officer, employee, representative, or agent of VMHC or of any subcontractor of VMHC. VII. DEFAULT AND REMEDIES A. Default. Each of the following is a default of this Agreement: 1. If VMHC fails to perform any of its obligations under this Agreement and fails to remedy the same within 30 days after VMHC is given a written notice specifying the same. 2. If an involuntary petition is filed against VMHC 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 VMHC, is appointed without acquiescence, and such petition or appointment is not discharged or stayed within 90 days after the happening of such event. 3. If VMHC 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. 4 8/20/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VMHC_FUNDING-CLEAN___002_.DOCX B. Remedies. 1. In the event of a default by VMHC, 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. 2. In addition to any other available remedy, if VMHC fails to fulfill its obligations under Section II.A. to make the total Reimbursement within 5 years of the Effective Date, VMHC shall transfer title to the tent structure to the Town at no cost to the Town. Upon such transfer, this Agreement shall automatically terminate without further action of the Parties. VIII. MISCELLANEOUS A. 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. B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligation of this Agreement. C. Integration. This Agreement constitutes the entire agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third-party beneficiaries to this Agreement. E. Notice. Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented or sent pre-paid, first-class U.S. Mail to the Party at the address set forth on the first page of this Agreement. F. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification. This Agreement may only be modified upon written agreement of the Parties. H. Assignment. VMHC may assign, transfer, or convey its rights and obligations under this Agreement, including without limitation the reimbursement obligations set forth in Section II hereof, to any third party, with the prior written consent of the Town. Notwithstanding the foregoing, VMHC may sell the Tent without the Town's prior written consent, but VMHC shall reimburse the total amount of $300,000 to the Town prior to or upon such sale. 5 8/20/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VMHC_FUNDING-CLEAN___002_.DOCX I. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities or protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town and its officers, attorneys or employees. J. Rights and Remedies. The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. 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. K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. L. 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 attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government or pandemics. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. TOWN OF VAIL, COLORADO _____________________________ Travis Coggin, Mayor ATTEST: ___________________________ Stephanie Kauffman, Town Clerk VAIL MOUNTAIN HOCKEY CLUB By: _____________________________ STATE OF COLORADO ) ) ss. COUNTY OF ______________ ) 6 8/20/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VMHC_FUNDING-CLEAN___002_.DOCX The foregoing instrument was subscribed, sworn to and acknowledged before me this ___ day of ___________, 2025, by ______________________ as ___________ of Vail Mountain Hockey Club. My commission expires: ________________________ (S E A L) _____________________________ Notary Public 8/20/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VMHC_FUNDING-CLEAN___002_.DOCX EXHIBIT A DESCRIPTION OF THE PROJECT 8 8/20/2025 \\FILESERVER2019\REDIRECTED$\SKAUFFMAN\DESKTOP\VMHC_FUNDING-CLEAN___002_.DOCX EXHIBIT B REIMBURSEMENT VMHC's reimbursement payments shall be made as follows commencing on July 31, 2026. July 31, 2026 $60,000 July 31, 2027 $60,000 July 31, 2028 $60,000 July 31, 2029 $60,000 July 31, 2030 $60,000 Total $300,000