HomeMy WebLinkAboutfront_door_development improvement agreement_amendment_121707AMENDMENT TO FRONT DOOR 01?1G11v404
DEVELOPMENT AGREEMENT
D. The Town and Vail Associates have mutually determined to make this
Amendment in order to modify the application of the Front Door Housing Requirement as a
condition to the issuance of C.O.s for the Front Door Project.
806856.4 RCFISH
NOW, THEREFORE, in consideration of the above premises, and the mutual covenants
and agreements set forth herein, the Town and Vail Associates covenant and agree as follows:
1. Market Requirements. Within the period expiring on and including June 13, 2008
(the "Satisfaction Period"), Vail Associates will be required to provide the 9 beds under Front
Door Housing Requirement by (i) acquiring, either directly or through one or more of its
affiliates, fee title to residential dwelling units within the Town that are deed-restricted as EHUs,
and/or (ii) securing the requisite EHU deed restrictions of record on residential dwelling units
owned by others within the Town, provided that the EHUs or EHU deed restrictions so acquired
or established may not be previously allocated to satisfy any employee housing development
requirements lawfully imposed by the Town on a third party (the "Market Acquisition
Requirement"). Those dwelling units so acquired and/or restricted in accordance with the
foregoing are sometimes referred to hereinafter as the "Market Units." The Town will cooperate
promptly and reasonably with Vail Associates for verifying the effect under this Amendment of
proposed transactions for Market Units and for establishing the related deed restrictions.
2. Letters of Credit.
(a) Prior to the issuance of any C.O. for the Skier Services Facility, Vail
Associates or an affiliate of Vail Associates shall furnish the Town with an irrevocable
standby letter of credit in the amount of $823,784 (the "Skier Services Letter of Credit");
prior to the issuance of any C.O. for the Lodge Spa and/or the Ski Club, Vail Associates
or an affiliate of Vail Associates shall furnish the Town with an irrevocable standby letter
of credit in the amount of $358,681 (the "Spa/Club Letter of Credit"). The Skier Services
Letter of Credit and the Spa/Club Letter of Credit are sometimes referred to hereinafter
together or in the singular as the "Letter(s) of Credit." The parties acknowledge and
agree that the combined amounts of the Letters of Credit are based on the Front Door
Housing Requirement of 9 beds multiplied by the fee in lieu presently established for the
inclusionary zoning within the New Housing Ordinances (defined below) in the amount
of $131,385 per bed (the "Per Bed Attribution"). Vail Associates has agreed to the
application of the Per Bed Attribution for purposes of this Amendment even though the
New Housing Ordinances do not otherwise apply to the Front Door Project (except as
otherwise elected, if at all, by Vail Associates). The "New Housing Ordinances" are
constituted by Town Code Sections 12-23-1, et M., and 12-24-1, et seq. Each Letter of
Credit shall be issued by a banking institution, shall name the Town as beneficiary, and
shall have a term no shorter than thirty (30) days after expiration of the Satisfaction
Period.
(b) If prior to the expiration of the Satisfaction Period, the Market Acquisition
Requirement is partially satisfied by the establishment of Market Unit(s), the aggregate
amounts that may be drawn under the Letters of Credit pursuant to paragraph 2(c) below
will be reduced by an amount equal to the Per Bed Attribution applied to the number of
beds allocable to the Market Unit(s) so established. The rights of the Town to draw upon
the Letter(s) of Credit shall be limited by the applicable reduction, the Town will not
make any draws under the Letters of Credit which in the aggregate exceed the reduced
amount, and any proceeds derived from the Letters of Credit in excess of the reduced
amount shall be and remain the sole property of Vail Associates and/or its affiliates (and
806956.4 RUISH 2
the Town will be obligated to remit any such excess to Vail Associates forthwith). At
Vail Associates' election, Vail Associates may also provide replacement Letter(s) of
Credit reflecting the applicable reduction (with the Town to return the Letter(s) of Credit
being replaced).
(c) If Vail Associates defaults in the timely satisfaction of the Market
Acquisition Requirement, then the Town shall have the right to draw upon the Letters of
Credit to the extent permitted under paragraph 2(b) above, and to retain the properly
drawn amounts in full satisfaction of the Market Acquisition Requirement. Such right to
draw upon the Letters of Credit and to retain the proper amount of proceeds shall be the
Town's sole right or remedy for any default of the Market Acquisition Requirement (and
its satisfaction shall not be a condition to the issuance of any C.O.$). Proceeds of proper
draws under the Letters of Credit will be used by the Town solely to acquire EHUs within
the Town. Conversely, if and when the Market Acquisition Requirement has been timely
satisfied, the Town will return the Letters of Credit to Vail Associates or its designee, and
the Town shall have no further interest in the Letters of Credit.
(d) The Front Door Housing Requirement shall now be allocated and applied
solely to the Skier Services Facility and to the Lodge Spa and Ski Club, and satisfaction
of the Front Door Housing Requirement shall no longer act as a condition to the issuance
of any C.O. for any other element of the Front Door Project or encumber the same in any
respect. In addition, (i) upon the delivery to the Town of the Skier Services Letter of
Credit, the Front Door Housing Requirement will be satisfied with respect to and shall no
longer be a condition to the issuance of any C.O. for the Skier Services Facility, and
(ii) upon the delivery to the Town of the Spa/Club Letter of Credit, the Front Door
Housing Requirement will be satisfied with respect to and shall no longer act as a
condition to the issuance of any C.O. for either of the Lodge Spa or Ski Club.
3. , Notices; Business Days. Any notice required or permitted under the terms of this
Amendment shall be given and shall be deemed received in accordance with the notice
provisions under the Development Agreement, which are incorporated herein by this reference
and made applicable to the provisions of this Amendment. For that purpose, the notice addresses
and information applicable to Vail Associates are hereby modified as follows:
The Vail Corporation
c/o Vail Resorts Development Company
P.O. Box 959
137 Benchmark Road
Avon, Colorado 81620
Attention: Keith Fernandez, Authorized Agent
Fax No.: (970) 754 -2555
806856.4 RUISH 3
with a copy to:
Vail Resorts Development Company
Legal Department
Post Office Box 959
137 Benchmark Road
Avon, Colorado 81620
Attention: Julie Stencel, Esq. and Diane Mauriello, Esq.
Fax No.: (970) 754-2555
As used herein, the term "business day" shall mean any day other than a Saturday, a Sunday, or a
legal holiday for which U.S. mail service is not provided. Whenever any date or the expiration
of any period specified under this Amendment falls on a day other than a business day, then such
date or period shall be deemed extended to the next succeeding business day thereafter.
4. Effect. This Amendment constitutes a modification of the provisions of the
Development Agreement. Except as modified hereby, the Development Agreement shall remain
in full force and effect. In the event of any conflict or inconsistency between the provisions of
this Amendment and the provisions of the Development Agreement, the provisions of this
Amendment shall be controlling. The terms of this Amendment shall be interpreted and given
force and effect in accordance with the non-conflicting provisions of the Development
Agreement, which shall be applied to the terms and provisions of this Amendment as if this
Amendment were a part of the Development Agreement in the first instance.
5. Entire Agreement. This Amendment and the Development Agreement represent
the entire agreement between the parties hereto with respect to the subject matter hereof, and all
prior or extrinsic agreements, understandings or negotiations (including, without limitation, any
summaries of terms) shall be deemed merged herein.
6. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Colorado.
7. Additional Assurances. The parties agree to reasonably cooperate in executing
any additional documents and in taking any additional action as may be reasonably necessary to
carry out the purposes of this Amendment. Without limitation on the foregoing, the Town agrees
to famish such written confirmations as Vail Associates may require of any satisfaction, in
whole or part, of the Front Door Housing Requirement pursuant to the terms hereof.
8. Successors and Assigns. Subject to the limitations under the Development
Agreement, the respective rights and obligations of the parties shall be binding upon and inure to
the benefit of their respective successors and assigns. CLV shall be an express third-party
beneficiary of the Town's agreements and obligations hereunder.
9. Counterparts. This Amendment may be executed in counterparts, each of which
shall constitute an original, and which together shall constitute one and the same agreement.
10. Recording. This Amendment may be recorded in the Records, but only at the
election of Vail Associates.
806856.4 RCFISH 4
11. Attorneys' Fees. In the event any legal proceeding arises out of the subject matter
of this Amendment and is prosecuted to final judgment, the prevailing party shall be entitled to
recover from the other party all of the prevailing party's costs and expenses incurred in
comiection therewith, including reasonable attorneys' fees (and the presiding court will be bound
to make this award).
[Balance of page intentionally left blank]
806856.4 RCFISH 5
IN WITNESS WHEREOF, the Town and Vail Associates have made this Second.
Amendment to Front Door Development Agreement effective as of the day, month and year first
above written.
N Op TOWN OF VAIL, a municipal corporation
duly organized and existing under and by
virtue of the laws of the State of Colorado
SEAL
co °•
By:
RA StwiTey B. Zemler, Town Manager
t
ATTEST:
tof'elei D
pAaldson, T' n Clerk
STATE OF COLORADO
ss.
COUNTY OF EAGLE
The foregoing instrument was acknowledged before me this *2— day of
20D ?, ail
, by Stanley B. Zemler as Town Manager of Town of Vail, a
municipal corporation duly organized and existing under and by virtue of the laws of the State of
Colorado.
WITNESS my hand and official seal.
','.%0%B1"'NPye$ommission expires:
GEL
0 U
*%
1114010% [Signature Block of Vail Associates Follows on Next Page]
Alr,
806856.4 RCFISH 6
Approved as to Form:
Vail R s its
al DelPartment
�$y: pgtF18(;UNNI HAM
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STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
VAIL ASSOCIATES:
THE VAIL CORPORATION, d/b /a VAIL
ASSOCIATES, INC., a Colorado corporation
By:
Keith Fernandez,
President and COO -VRDC
The foregoing instrument was acknowledged before me this 1 y day of
e C.. , 20 p %by Keith Fernandez as President and COO -VRDC of The Vail
Corporation, d/b /a Vail Associates, Inc., a Colorado corporation
WITNESS my hand and official seal.
My commission expires: / — / c% _ O q
Notary Public
Ju
A°
My Commission ExOnls 0111
806856.4 RCFISH 7
BankofAmerica
1000 W. TEMPLE STREET
7TH FLOOR, CA9- 705 -07 -05
LOS ANGELES, CA 90012 -1514
BENEFICIARY APPLICANT
TOWN OF VAIL VAIL ASSOCIATES, INC.
75 S. FRONTAGE ROAD C/O THE VAIL CORPORATION
'JAIL,- G0 81657 - 390 INTERLOCREN CRESCENT;- STE: 1000
BROOMFIELD, CO 80021
AMOUNT
USD 823,784.00
EIGHT HUNDRED TWENTY THREE THOUSAND SEVEN HUNDRED EIGHTY FOUR AND 001100'S
US DOLLARS
EXPIRATION
JULY 14, 2008 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 BANK OF AMERICA, N.A., ACCOMPANIED BY
THE DOCUMENT DETAILED BELOW:
BENEFICIARY'S SIGNED STATEMENT STATING THE FOLLOWING:
(1) THERE HAS BEEN A DEFAULT UNDER THE AMENDMENT TO FRONT DOOR
DEVELOPMENT AGREEMENT DATED DECEMBER 17, 2007 (THE "AGREEMENT ")
BETWEEN THE VAIL CORPORATION D /B /A VAIL ASSOCIATES, INC. AND THE TOWN
OF VAIL WITH RESPECT TO THE SATISFACTION OF THE MARKET ACQUISITION
REQUIREMENT WITHIN THE SATISFACTION PERIOD AS DEFINED IN THE
AGREEMENT,
(2) THE AMOUNT DRAWN IS REQUIRED TO REMEDY THE DEFAULT,
(3) SUCH DRAW, COUPLED WITH ANY PERMITTED DRAW UNDER THE OTHER LETTER
OF CREDIT PROVIDED PURSUANT TO THE AGREEMENT, IS THE TOWN OF VAIL'S
SOLE AND EXCLUSIVE REMEDY FOR SUCH DEFAULT, AND THE DRAW(S) CONFORM
WITH THE LIMITATIONS ON DRAW AMOUNTS UNDER THE AGREEMENT, AND
ORIGINAL
05- 17 -1486B 7 -2000
Ban kofAmer "Rca
ll�w
BANK OF AMERICA - CONFIDENTIAL
..
THIS IS AN INTEGRAL PART OF LETTER OF CREDIT NUMBER: 3091277
(4) THE AMOUNTS DRAWN WILL BE APPLIED IN ACCORDANCE WITH THE TERMS OF
THE AGREEMENT.
UNQUOTE
PARTIAL DRAWINGS ARE PERMITTED.
THIS LETTER OF CREDIT MAY NOT BE DRAWN UPON PRIOR TO JUNE 14, 2008.
THE AMOUNT OF THIS LETTER OF CREDIT WILL BE AUTOMATICALLY REDUCED
UPON OUR RECEIPT OF'YOUR WRITTEN NOTICE SIGNED BY ONE OF YOUR
AUTHORIZED OFFICERS STATING "WE HEREBY CERTIFY THAT IN ACCORDANCE TO
THE AGREEMENT THE AMOUNT OF LETTER OF CREDIT NO. MAY BE
REDUCED BY $ TO A NEW OUTSTANDING AMOUNT OF
WE HEREBY ENGAGE WITH YOU THAT DRAFTS 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 -051 LOS ANGELES, CA
90012 -1514, ATTN: STANDBY LETTER OF CREDIT DEPARTMENT ON OR BEFORE
THE EXPIRATION DATE OR ANY 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 213 - 481 -7844.
�e" - - - - - - - - - - - -
- - - - - - AUTHORIZED SIGNATURE
THIS DOCUMENT CONSISTS OF 2 PAGE(S).
ANNIE H. MATIAS
05- 17 -1486B 7 -2000
ORIGINAL
3;
July 29, 2008
Vail Associates, Inc.
c/o the Vail Corporation
390 Interlocken Crescent, Ste. 1000
Broomfield, CO 80021 .
Re: Bank of America, N.A. Letter of Credit Number 3091277
To Whom It May Concern:
The above mentioned letter of credit has been released. Please find the original letter
enclosed and a copy of the Amendment to the Front Door Development Agreement
dated December 17, 2007. If you have any questions please call Nina Timm at 970 -479-
2144 or George Ruther at 970-479-2145.
Sincerely,
Lynne Campbell
Office Manager
Enclosures
cc: Nina Timm
Keith Fernandez, The Vail Corporation
Julie Stencel, Esq., Vail Resorts Development Company
Diane Mauriello, Esq., Vail Resorts Development Company
RECYCLED PAPER
0
July 29, 2008
This is to acknowledge that Gerry Arnold, representative for Vail Resorts Development
Company has picked up the released Letter of Credit #3091277 for the Vail's Front Door
Employee Housing Units. A
SignatUrdl
A
M
-7
Date
CO RECYCLED PAPER