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HomeMy WebLinkAbout2012-08 Approving a Settlement Agreement with Subway Real Estate CorporationN RESOLUTION NO. 8 Series of 2012 A RESOLUTION APPROVING A SETTLEMENT AGREEMENT BETWEEN THE TOWN OF VAIL AND SUBWAY REAL ESTATE CORPORATION; AND SETTING FORTH DETAILS IN REGARD THERETO WHEREAS, the Town of Vail (the "Town "), in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Town Charter (the "Charter"); WHEREAS, the members of the Town Council of the Town (the "Council ") have been duly elected and qualified; WHEREAS, the Council wishes to settle a lease dispute with a former tenant and Subway restaurant franchisee; and WHEREAS, the Council's approval of Resolution No. 8, Series 2012, is required to enter into a settlement agreement (the "Agreement "). NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby approves Agreement and authorizes the Town Manager to enter into the Agreement on behalf of the Town in substantially the same form attached hereto as Exhibit A and in a form approved by the Town Attorney. 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 7th day of February, 2012. I Andrew P. b 7 aly Town Mayor <= T T: (hqfei Donaldso , Town Clerk Resolution No. 8, 2012 EXHIBIT A SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE (the "Agreement ") is made and entered into this day of , 2012 ( "Effective Date "), by and between Subway Vail Valley, Inc., a corporation with an address of P.O. Box 2342, Edwards, CO 81632 ( "Franchisee "), Subway Real Estate Corp., a corporation with an address of 325 Bic Drive, Milford, CT 06461 ( "Lessee "), and the Town of Vail, Colorado, a Colorado home rule municipality with an address of 75 South Frontage Road, Vail, CO 81657 (the "Town ") (each individually a "Party" and collectively the "Parties "), WHEREAS, on November 20, 1991, Lessee and the Town entered into an agreement whereby Lessee leased from the Town premises located in the former Lionshead Parking Structure (the "Lease "); WHEREAS, Lessee vacated the premises on or about April 26, 2011; WHEREAS, the former Lionshead Parking Structure was demolished on our about April 27, 2011; WHEREAS, Franchisee and Lessee have each, at various times since April 2011, asserted that they suffered damages as a result of the Town's breach of the Lease (the "Claims "); WHEREAS, the Town disputes that any of the Claims are valid; WHEREAS, the Parties have agreed that, to avoid additional expense and the uncertainty of litigation, it is in their respective best interests to enter into this Agreement to settle and resolve the dispute among the Parties, by way of compromise and without any admission of liability by any Party. NOW, THEREFORE, based upon the foregoing recitals and the consideration set forth herein, the amount and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Payment Without admitting liability on any of the Claims, the Town shall pay Franchisee Fifty Thousand Dollars ($50,000). Such payment shall be made within ten business days of the Effective Date. 2. Release In consideration for the payment described in Section 1 hereof, Lessee and Franchisee, on behalf of themselves and their respective officers, directors, employees, attorneys, agents, representatives, parents, successors, subsidiaries and affiliated entities, hereby release and forever discharge the Town and its officers, directors, employees, attorneys, agents, representatives, parents, successors, subsidiaries, and affiliated entities from any and all liability, claims, demands, obligations, actions, Resolution No. 8, 2012 I causes of action, and damages, of any nature whatsoever, known or unknown, whether at law or equity, that they ever had or may now have resulting from, arising out of, or related in any way to the Claims or the Lease. 3. Fees and Costs. Each Party shall bear its own attorney fees, costs, and expenses incurred in connection with this Agreement. 4. Representations Each Party represents, warrants, and agrees as follows: a. Legal Advice Each Party has received independent legal advice from its attorneys with respect to the advisability of entering into and executing this Agreement. b. Authorization Each Party has full power and authority to execute, deliver, and perform this Agreement, and each of them has taken all necessary steps for the execution and delivery of this Agreement. C. No Assignment No Party has previously assigned, transferred, granted, or purported to assign, transfer, or grant any of the Claims. Miscellaneous a. No Admission This Agreement effects the settlement of claims that are denied and contested, and nothing in this Agreement shall constitute an admission of liability or wrongdoing by any Party. b. No Construction Against Drafter Each Party has cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed against any Party. C. Counterparts This Agreement may be executed in counterparts and shall be fully effective when executed by all Parties. d. 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. e. Integration This Agreement constitutes the entire agreement between the Parties, superseding all prior oral or written communications. f. Third Parties There are no intended third -party beneficiaries to this Agreement. g. 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. h. Modification This Agreement may only be modified upon written agreement of the Parties. Resolution No. 8, 2012 i. Assignment Neither this Agreement nor any of the rights or obligations of the Parties shall be assigned by any Party without the written consent of the other Parties. j. Governmental Immunity The Town, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations (presently one hundred fifty thousand dollars ($150,000) per person and six hundred thousand dollars ($600,000) per occurrence) or any other rights, immunities, and 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 or employees. 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 are subject to annual appropriation, and thus any obligations of the Town hereunder shall extend only to monies currently appropriated and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. IN WITNESS WHEREOF, the Parties have executed this Agreement on the Effective Date. TOWN OF VAIL, COLORADO Andy Daly, Mayor ATTEST: Lorelei Donaldson, Town Clerk APPROVED AS TO FORM: J. Matthew Mire, Town Attorney Resolution No. 8, 2012 ` ' SUBWAY VAIL VALLEY, INC. By: Its: STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was subscribed, sworn to and acknowledged before me this day of , 2012, by as of Subway Vail Valley, Inc. My commission expires: (S E A L) Notary Public Resolution No. 8, 2012