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Home My WebLink AboutEver Vail Development Improvement Agreement amendment 033012SC'4�►N �D ..---._ AMENDMENT 70 DEVEL�PER IMPROVEMENT AGREEMENT THIS AMENDMENT TO DEVELOPER IMPROVEMENT AGREEMENT (this "Amendment") is made as of March 30, 2012 (the "Effective Date") by and between EVER VA(L, LLC, a Colorado limited liability company ("Qeveloper"), and the Town of Vail (the "Town") and Bank of America (the "Bank"). RECITALS WHEREAS, Deve{oper and Town entered into that certain Developer Improvement Agreement, dated as of Jvne 30, 2010 (the "Agreement") with respec# to the Frontage Road Condition {as defined in the Agreement); and WHEREAS, Developer and the Town now desire to amend the Agreement as set forth in this Amendment.. AMENDMENT NOW, THEREFORE, in considerafion of fhe benefits and obligations received by Developer and the Town, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1.. Defined Terms. All capitatized terms used in this Amendment without definition shall have the meanings assigned to them in the Agreement, unless otherwise provided in this Amendment.. 2.. Develoner Commitment. The second and third sentences of Section 1 of the Agreement are hereby deleted and replaced as ioflows: On or before May 18, 2012, the Developer agrees to submit to the Town staff for their review fhe necessary permits to construct the Improvements referred #o in this Agresment.. 7he Developer agrees to complete all Impravements referred ta in this Agreement on or before the October 26, 2012, 3. No Further Chanqes.. Except as modified in this Amendment, the Agreement remains in full force and efFect in accordance with its terms.. 4. Counterparts. This Amendment may be executed in several counterparts, each of which shall be deemed to be an original, and all such counterparts taken together wilE constitute one and the same instrument binding on all of the parties, .. jSigna#ure page follows] � � ease- . � , . IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Effective Date. Developer Ever Vail, LLC $y: Vail Resorts Devefo�ent Company, as Managing Member Alex Iskenderian Senior Vice Presid t CO — RDC STATE OF COLORADO ) ) ss. COUN7Y OF EAGLE ) The foregoing Amendment was acknowledged before me this �b7� day af March, 2012 by Alex Iskenderian, Senior Uce President & COO for Vail Resorts Development Company, as Managing Member of Ever Vail, LLC, a Colorado limited tiability company. Witness my hand and o#ficial seal.. My commission expires: -?' 8� �y t�,,.r.e.c� /1- '�/ NO� �IC 2 rt fU1'YfI iF� i0. Fllflif: ` i�• �� .. ��a1lKesv is � t?clrartmr�il tly: � � �.� ,�Kuaur:--�AiV\4AlL �„�z: _ 3-29-12 . STATE OF COLORADO COUNTY OF EAGLE To1vn c� Vail, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado � 3 30 �Z George Ruther Director of Community Development ) ) ss. ) The foregoing Amendment was acknowledged before me this day of March, 2012 by George Ruther, Director of Community Development for the Town of Vail. Witness my hand and official seal. My commission expires: „% ,[ � 1 g� �/� ��`��\\\\PN NI �F( //��i \\�.v�y !'� �'' = = p� PR � � =�' � = = p�6��G . � � � . . � '. J't �'�• ... . . ..••'O� \� /��i�TF O F G��`\\\. ��/t��iinin�+"�� r / �i ' � «.i . . ,. Legal Description: lot , Blocic Subdivision: Address: Developer: c�Q /' _ ; � LL� Project Number. O Permit Number. Improvement Completion Date: June 30. 2012 Letter of Credit Expiration Date: Julv 30. 2012 DEVELOPER IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this 30th day of June, 2010, by and among Ever Vail, LLC, a Colorado limited liability company (the "Develope�'), and the Town of Vail {the "Town") and Bank of America (the "Bank'). WHEREAS, the Developer and the Town wish to enter into a Development Improvement Agreement consistent with Condition CON0011252 of the Town's Design Review Board Approval dated January 6, 2010 for changes to the South Frontage Road design (the "Frontage Road Condition"); and WHEREAS, pursuant to the Frontage Road Condition, the Developer is obligated to provide security or collateral sufficient in the judgment of the Town to make reasonable provisions for completion of certain improvements set forth in the estimated bid attached as Exhibit A(the "Improvements") in accordance with the plans and specifications approved by the Colorado Department of Transportation and attached as Exhibit B(the 'CDOT Plans"); and WHEREAS, The Vail Corporation desires to act for the benefit of its a�liate solely to assist with the letter of credit; and WHEREAS, the Developer wishes to provide security to guarantee performance of this Agreement, including completion of all Improvements referred to in this Agreement, by means of the following: The Developer by and through The Vail Corporation agrees to establish an irrevocable letter of credit #311342T, as amended, in the amount of $222,087.50 with the Bank as the security for the completion of all Improvements referred to in this Agreement, in the event there is a default under this Agreement by the Developer. NOW THEREFORE, in consideration of the following mutual covenants and agreements, the Developer and the Town agree as follows: 1. Developer Commitment. The Developer agrees, at its sole cost and expense, to fumish all equipment and materials necessary to perform and complete aft Improvements referred to in this Agreement. On or before March 30, 2012, the Developer agrees to submit to the Town staff for their review the necessary permits to construct the Improvements refeRed to in this Agreement. The Developer agrees to complete all Improvements referred to in this Agreement on or before the 30th day of June, 2012. The Developer shall complete, in a good workmanlike manner, all Improvements referred to in this Agreement, in acoordance virith the CDOT Plans, and to do atl work incidental thereto according to and in compliance with the following: � i�ni'iiiiiiiir .c. a- i�• � All said work shall be done under the inspection of, and to the satisfaction of, the Town Planner and CDOT, and shall not be deemed complete until approved as completed by the Community Development Department and CDOT. 2. Letter of Credit. To secure and guarantee performance of the obligations as set forth herein, the Developer by and through The Vail Corporation agrees to provide security as follows: Irrevocable letter of credit #3113427, as amended, in the amount of $222,087.50 (125% of the total costs of the attached estimated bid(s)) in the form attached hereto as Exhibit C with the Bank set to expire on the 30th day of July, 2012 (not to expire less than 30 days after the date set forth in Paragraph 1 of this Agreement) as the security for the-completion of all Improvements referred to in this Agreement, in the event there is an uncured default under this Agreement by the Developer. 3. Substitution. The Developer may at any time substitute the security originally set forth above for another form of security or collateral acceptable to the Town to guarantee the faithful completion of those Improvements referred to in this Agreement and the performance of the terms of this Agreement. Such acceptance by the Town of alternative security or collateral shall be at the Town's sole discretion. 4. Liability. The Town shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage happening or occurring to the work specified in this Agreement prior to the comple6on and acceptance of the same, nor shall the Town, nor any officer or employee thereof, be liable for any persons or property injured by reason of the nature of said work, but all of said liabilities shall and are hereby assumed by the Developer unless caused by the negligence or willful misconduct of the Town, its officers, agents or employees. 5. Indemnity. The Developer hereby agrees to indemnify and hold harmless the Town, and any of its officers, agents or employees against any losses, claims, damages, or liabilities to which the Town or any of its officers, agents or employees may become subject to, insofar as any such losses, claims, damages or liabilities (or actions in respect thereofl that arise out of or are based upon any pe�formance by the Developer hereunder; and the Developer shall reimburse the Town for any and all legal or other expenses reasonably incurred by the Town in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnity provision shall be in addition to any other liability which the Developer may have. 6. Partial Release. It is mutually agreed that the Developer may apply for and the Town may authorize a partial release of the security provided to the Town for each category of Improvements at such time as such Improvements are constructed in compliance with all plans and specifications as referenced hereunder and accepted by the Town. Under no condition shall the dollar amount of the secu�ity provided to the Town be reduced below the dollar amount necessary to complete all uncompleted Improvements referred to in this Agreement. 7. Notice/Cure/Self Help. If the Town determines, at its sole discretion that any of the Improvements referred to in this Agreement are not constructed in compliance with the CDOT Plans or not accepted by CDOT as complete on or before the date set forth in Paragraph 1 of this Agreement, the Town may, but shall not be required to, draw upon the security referred to in this Agreement and complete the uncompleted Improvements referred to in this Agreement. If the costs of completing the uncompleted Improvements referred to in this Agreement exceed the dollar amount of the security provided to the Town, the excess, together with interest at finrelve percent (12°!0) per annum, shalf be a lien against the property and may be collected by civil suit or may be certified to the treasurer of Eagle County to be collected in the same manner as delinquent and valorem taxes levied against such property. If the Developer fails or refuses to complete the Improvements referred to in this Agreement, such failure o� refusal shall be considered a violation of Title 12 (Zoning Regulations), of the Vail Town Code, and the Developer shall be subject ta penalties pursuant to Section 12-3- 10 (Violations: Penalties) and Chapter 1-4 (General Penalty), Vail Town Code. 8. Warranty. The Developer shall war�anty the work and materials of a11 Improvements referred to in this Agreement located on Town property or within a Town right-of-way, pursuant to Chapter 8-3, of the Vail Town Code, for a period of two years after the Town's acceptance of said Improvements. 9. Amendment. The parties hereto mutually agree that this Agreement may be amended from 6me to time, provided that such amendments be in writing and executed by all parties hereto. Dated the day and year first above written. : � Il� � � y�:. ,�� ii i � STATE OF COUNTY OF Developer Ever Vail, LLC, a Colorado limited liability company By: Vail Resorts Development Company, as Managing Member ) \ ) ss. ) of Development The foregoing Developer Improvement Agreement was acknowledged before me this �� day of June, 2010 by Nicholas Buchanan, Vice President of Development for Vail Resorts Development Company, as Managing Member of Ever Vail, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: �- e3�` v?O �� 0 3 NIKKI R. LfTTLE NOTARY PUBLIC STATE OF COLORADO nis Exoires �� Stan Zemier Town Manager STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The fqregoing Developer Improvement Agreement was acknowledged before me this _�� day of ��, 2010 by Stan Zemler, the Town Manager for the Town of Vail. Witness my hand and official seal. My commission expires: L�,7�e?H �/y ........-: ,�`;' � `% �'•;u a: � m :� z 7 . ..): � :� a.,� �''��h�'' �''��5�� •�_bl ..�,� 4 EXHIBIT A ESTIMATED BIDS TASK Engineering (CDOT Permit and NTP Dwgs. And QA/QC) Surveying Geo-tech Engineering Obtain CDOT Permit Mobiiization Traffic Control Saw Cut/Remove/Dispose of Asphalt in Island Areas Prep for Curb and Gutter Curb and Gutter at Island Two inlets and RCP Milling along existing C� G and tie-ins Asphalt Patch Back at new curb and gutter Asphalt Paving 2" Overlay Infra-red perpendicular seams Gravel Shoulder on North side of road Striping - temporary 8 permanent Irrigation Landscaping Signage at ends of Islands ESTIMATED COST $8,500.Q0 $4,000.00 $3,500.00 $750.00 $3,500.00 $19,000.00 $19,000.00 $4,000.00 $20,975.00 $10,250.00 $9,650.00 $2,500.00 $46,570.00 $2,975.00 $4,000.00 $4,000.00 $3,500.00 $8,000.00 3 000.00 TOTAL �177,670.00 EXHIBIT 8 C�IZ�a;��I�b� [SEE ATTACHED) D � � D v � � v v � 2 �� .� � =��g Mg� �go� �us�s, � � � �` 8 1 � � n z x � � � � � �� , 1 1� ` g' I I � � 1 � l EXHIBIT C LETTER OF CREDIT [SEE ATTACHED] BankofAmerica �� BANK OF AMERICA - CONFIDENTIAL DATE: APRIL 11, 2012 PAGE: 1 AMENDMENT TO IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3113427 AMENDMENT NUMBER 2 BENEFICIARY THE TOWN OF VAIL 75 S. FRONTAGE ROAD VAIL, CO 81657 ISSUING BANK BANK OF AMERICA, N.A. 1000 W. TEMPLE STREET 7TH FLOOR, CA9-705-07-05 LOS ANGELES, CA 90012-1514 APPLICANT EVER VAIL, LLC 137 BENCHMARK RD. AVON, CO 81620 THIS AMENDMENT IS TO BE CONSIDERED AN INTEGRAL PART OF THE ABOVE CREDIT AND MUST BE ATTACHED THERETO. THE ABOVE MENTIONED CREDIT IS AMENDED AS FOLLOWS: THE EXPIRATION DATE IS AMENDED TO: OCTOBER 26, 2012. THE AUTOMATIC EXTENSION CLAUSE IS NO LONGER IN EFFECT. ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED. IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS AMENDMENT, PLEASE CALL 800-541-6096 OPT 1. � --- -�------------------ AUTHORIZED SIGNATURE THIS DOCUMENT CONSISTS OF 1 PAGE(S). AN�t�E H. MATIAS ORIGINAL OS-17-1486B OS-2010 30-Jui-20'0 �225 PM 8ank of Arrar ca 213-2t�•"s251 Bankof�mer�ca� aAx�c o� �ci► - coz�zn�rrru►� l}AT�: JR7LY 30, 2U10 rAa�: �. A�bIDMBiQ'!' .'TO zRREVOCABL$ BTAPTDBY LS'i"PSR O� C�TDIT 1QpM8$R: 3113427 AT'�IDlKBNT NOI��ER 1 8$6iBFICIAgY � TOOITQ OF �IAIL 75 �S � 1'RO�N'Y'A(i� ROAD VAIL� CO S1657 I94QZ1'� BANK �ANR OF AMSRICA. �Q.A. 10 � 0 1P . TSMPLB STRS�x 7Z'g PZOOR, CA9-7d6-d7�a5 L�B ANGEL85, CA 900�Z-�SI4 APPLIGAATP HVi�R V]1IL, LLC 137 B�NNCE�IRK RD. AV�N, Ca 6162D 2/3 THI5 AMSNDM8I�T �S TO HB1 C@79ID�tED �►ffi INTBf�RAL PART OF THR A80VE G'B�TT AND MQST BB ATTACHBD �H�3t$Ta. TSB AHOVB MBNTIQNSD CRgDIT YS AI�8AiD8D AS FDT��4P9: TRS AMOONT 08 �`9I8 Cl2SDTT i3A8 BPEN INCRlEA88D BY a8D 69, 764 . 60 Tfig A�(�AT$ Al+lO�'i OF T88 CIi�DZT IB DT011 Ub'D ZZZ.087.50 ALL OTiTBR T�RM6 A1� G�O�AITIOIQB BSt►�AIN DN�HANGED . iB YOII RBQUIRB ANY 1198YS9TANCi3 �, HAV'g ANY Qi7�STI0NS REC�RDS� T�[6 AMSDIDIN�N'Pr PL�ABE CPiLL 1-800-541-6096 OPT ],. ^ --��`�� ---�� -- AUxHO1tILSD 8I TUR� TSIB DOCC1l�BD1T CONSI$T$ OF 1 pAC�EiB} . ��'ia�� uS.i� t� m•�oo �� 1� . BankofAmerica �' .I BANK OF AMERICA - CONFIDENTIAL DATE: JULY 1, 2010 IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3113427 BENEFICIARY THE TOWN OF VAIL 75 S. FRONTAGE ROAD VAIL, CO 81657 PAGE: 1 ISSUING BANK BANK OF AMERICA, N.A. 1000 W. TEMPLE STREET 7TH FLOOR, CA9-705-07-05 LOS ANGELES, CA 90012-1514 APPLICANT EVER VAIL, LLC 137 BENCHMARK RD. AVON, CO 81620 AMOUNT NOT EXCEEDING USD 152,325.00 NOT EXCEEDING ONE HUNDRED FIFTY TWO THOUSAND THREE HUNDRED TWENTY FIVE AND 00/100'S US DOLLARS EXPIRATION JULY 1, 2011 AT OUR COUNTERS WE HEREBY ESTABLISH IN YOUR FAVOR OUR IRREVOCABLE STANDBY LETTER OF CREDIT WHICH IS AVAILABLE WITH BANK OF AMERICA, N.A. BY PAYMENT AGAINST PRESENTATION OF THE ORIGINAL OF THIS LETTER OF CREDIT AND YOUR DRAFTS AT SIGHT DRAWN ON BANR OF AMERICA, N.A., ACCOMPANIED BY THE DOCUMENT DETAILED BELOW: BENEFICIARY'S SIGNED STATEMENT STATING THE FOLLOWING: QUOTE 1) THERE HAS BEEN A BREACH OR DEFAULT BY EVER VAIL, LLC UNDER THE DEVELOPER IMPROVEMENT AGREEMENT BETWEEN THE TOWN OF VAIL AND EVER VAIL, LLC DATED , 2010, AND SUCH BREACH OR DEFAULT HAS NOT BEEN CURED AS PROVIDED THEREIN. 2) THE AMOUNT DRAWN IS REQUIRED TO REMEDY SUCH BREACH OR DEFAULT. 3) SUCH DRAW IS THE TOWN OF VAIL'S SOLE AND EXCLUSIVE REMEDY FOR SUCH BREACH OR DEFAULT AND WILL BE APPLIED IN ACCORDANCE WITH THE TERMS OF THE DEVELOPER IMPROVEMENT AGREEMENT. UNQUOTE PARTIAL DRAWINGS AND MULTIPLE PRESENTATIONS ARE NOT PERNlITTED. THIS IRREVOCABLE LETTER OF CREDIT SHALL EXPIRE ON JULY 1, 2011 AND SHALL BE AUTOMATICALLY EXTENDED TO JULY 30, 2012, UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO JULY 1, 2011, WE NOTIFY YOU, WITH A COPY TO OS-17-1486B 07-2000 ORIGINAL � , 1BankofAmerica �,, � BANK OF AMERICA - CONFIDENTIAL PAGE: 2 THIS IS AN INTEGRAL PART OF LETTER OF CREDIT NUMBER: 3113427 EVER VAIL, LLC BY REGISTERED MAIL OR OVERNIGHT COURIER SERVICE AT THE ABOVE ADDRESS, THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR SUCH ADDITIONAL PERIOD. HOWEVER, FAILURE TO PROVIDE COPIES OF SUCH NOTICE TO EVER VAIL, LLC DOES NOT INVALIDATE OUR NOTICE OF NON EXTENSION TO THE BENEFICIARY. WE HEREBY ENGAGE WITH YOU THAT DRAFT(S) DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US AT BANK OF AMERICA, N.A., TRADE OPERATIONS CENTER, 1000 W. TEMPLE STREET, MAIL CODE: CA9-705-07-05, LOS ANGELES, CA 90012-1514, ATTN: STA.NDBY LETTER OF CREDIT DEPARTMENT ON OR BEFORE THE EXPIRATION DATE OR ANY AUTOMATICALLY EXTENDED EXPIRATION DATE AS SPECIFIED HEREIN. THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES 1998, ICC PUBLICATION NO. 590. IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANy QUESTIONS REGARDING THIS TRANSACTION, PLEASE CALL 1-800-541-6096 OPT 1. �------ _�� t�-- --r�i� AUTHO ZED SIGNAT E � THIS DO ENT CONSISTS OF 2 PAGE(S). STELLA ROSALES ORIGINAL OS-17-]4868 07-2000