HomeMy WebLinkAbout2014-09 Timber Ridge Develpoment AgreementRESOLUTION NO.9
Series of 2014
A RESOLUTION APPROVING A TIMBER RIDGE DEVELOPMENT
AGREEMENT; 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 Town is the owner of certain real property generally described as
the eastern half of the Timber Ridge property (the "Property ");
WHEREAS, the Town wishes to facilitate the redevelopment of the Property
consistent with the Housing zone district and those plans approved by the Town of Vail
PEC and D"; and
WHEREAS, to accomplish the redevelopment of the Property the Town desires to
enter into a Development Agreement (the "Agreement') with its selected developer in the
form attachedhereto as Exhibit A.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO THAT:
Section 1. The Council hereby approves the Agreement and authorizes the
Town Manager to enter into the Agreement on behalf of the Town in substantially the
same form as 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 1St day of April, 2014.
Andrew P. Daly
Town Mayor
TTEST:
• of
Acting Town Clerk j,
Resolution No. 9, Series 2014
00�GRADD ••
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement ") is made this
day of , 2014 (the "Effective Date "), by and between the Town of Vail,
Colorado, a Colorado home rule municipality (the "Town "), and Lion's Ridge Apartment
Homes, LLC, a Wisconsin limited liability company ( "Developer ") (individually a
"Party" and collectively the "Parties ").
WHEREAS, the Town is the owner of certain real property, more particularly
described in Exhibit A attached hereto and incorporated herein by this reference (the
"Property ");
WHEREAS, the Town has agreed to lease the Property to Developer for
development of the Property for employee housing ( "Development ") pursuant to the
Ground Lease dated 2014 and between the Town and
Developer (the "Ground Lease ");
WHEREAS the Development is subject to a Deed Restriction in the form attached
to the Ground Lease as Exhibit B;
WHEREAS, the Town and Developer entered into a Pre - Development Agreement
dated November 4, 2013 regarding the Property, which pre- Development Agreement
shall be deemed superseded by this Agreement; and
WHEREAS, the Parties wish to elaborate on the terms of the Development
process and parameters of the Development.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the sufficiency of which is mutually acknowledged, the
Parties agree as follows:
Obligations of the Town. The Town covenants and agrees as follows:
a. The Town will be responsible for design and construction of any
necessary rockfall mitigation systems, at the Town's sole cost. The rockfall mitigation
systems shall be designed and constructed in accordance with Chapter 12 -21 of the Vail
Town Code. The rockfall mitigation shall be complete on or before August 15, 2014
unless a later date is mutually agreed upon by both Parties.
b. The Town and Developer shall grant to each other, for the benefit of the
Property and the Adjacent Property, such temporary construction easements across the
Property and the Adjacent Property that are mutually determined to be necessary for the
Development.' Upon completion of the Development, appropriate permanent easements,
including without limitation utility, drainage, and access easements, will be granted by
the Parties for the benefit of the Property and the Adjacent Property.
C. The Town shall refund 100% of all amounts paid by the Developer for the
Town's construction and building materials use tax applicable to the Property, which
Resolution No. 9, Series 2014
refund shall be paid by the Town to Developer within 5 business days after Developer's
payment to the Town.
2. Obligations of Developer. Developer covenants and agrees as follows:
a. The Development shall at all times be subject to the Vail Town Code, and
Developer shall be responsible for payment of the Town's typical and customary plan
review fees for review of all plans for the Property.
b. Developer shall be responsible for all demolition and building permit fees
for permits issued by the Town in connection with the Development.
C. Developer shall be solely responsible to procure financing for the
Development. If Developer wishes to use federal funds for the Development, it shall be
Developer's sole responsibility to procure such funds.
d. 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 in the Ground Lease (the
"Adjacent Property ").
e. Developer shall, at its sole cost, construct new improvements on the
Property in accordance with the construction standards set forth herein and other
applicable law. "Improvements" means any buildings, structures, signage, streets,
sidewalks, utilities or other improvements necessary for the Development and
constructed or installed by or for Developer on the Property. Developer shall commence
construction of the Improvements by August 15, 2014, unless a later date is mutually
agreed to by both Parties, and shall achieve substantial completion of the Improvements
on or before the date that is 16 months after the date that Developer commences
construction of the Improvements, unless a later date is mutually agreed to by both
Parties.
f. Developer shall cooperate with and coordinate with the Town regarding
construction of the rockfall mitigation.
g. Prior to issuance of a building permit, Developer shall submit and obtain
approval of a detailed waste removal management and operations plan specifically
describing how waste and recycling will be accommodated and managed on the site.
h. Prior to issuance of a building permit, Developer shall submit and obtain
approval of a construction staging plan to the Community Development Department for
review and approval which addresses such matters as materials staging, construction
parking plan, construction and occupancy phasing, temporary access, construction
schedule, temporary utilities, traffic control, and emergency access.
i. Prior to issuance of a certificate of occupancy, Developer shall apply for
and record a revocable right -of -way permit for any and all private property improvements
located within Town rights -of -way.
Resolution No. 9, Series 2014
j. Prior to issuance of a building permit, Developer shall submit a Shoring
and Excavation Plan to the Community Development Department for review and
approval, which shall address such matters as excavation phasing, engineered shoring
plans, detailed profiles and cross - sections, existing utilities, materials storage, and
permanent and temporary easements.
k. Prior to the issuance of a certificate of occupancy, Developer shall make a
one time payment in lieu of transportation improvements to the Town for mitigation of
development impacts on the Town's transportation systems of $170,000.
1. Prior to issuance of a building permit, Developer shall submit and obtain
approval of an engineered analysis of gabion walls proposed to remain on the site. Said
analysis shall address the existing structural conditions of the walls, how the existing
walls will be physically integrated into the construction of the new retaining wall system,
and how structural shoring will be provided during construction. In no instance shall the
design or construction negatively impact the adjacent properties or improvements.
m. Prior to issuance of a building permit, Developer shall submit and obtain
approval of a revised grading plan for the west end of the Property demonstrating how
the existing portions of the parking lot and drive aisles to remain tie into the proposed
new improvements.
n. Prior to applying for a building permit, Developer shall obtain a Notice to
Proceed from the Colorado Department of Transportation ( "CDOT ").
o. Developer shall not apply for a building permit until the Town has
approved a parking management plan for the Development.
3. Construction of Improvements.
a. All construction, alterations, renovations, repairs, refurbishment and other
work on the Property shall be performed in compliance with this Agreement, the Deed
Restriction, the Vail Town Code and the following:
b. Work shall be done in a workmanlike manner, in full compliance with all
applicable building codes, ordinances, and other laws or regulations of all governmental
authorities having jurisdiction.
C. No work shall be commenced without all licenses, permits, and
authorizations required by applicable law.
d. Developer shall have no right, authority or power to bind the Town or any
interest of the Town in the Property for any claim for labor or for material or for any
other charge or expense incurred in constructing any Improvements or performing any
alteration, renovation, repair, refurbishment or other work, nor to render the Town's
interest in the Property liable for any lien or right of lien for any labor, materials or other
charge or expense.
Resolution No. 9, Series 2014
e. Developer shall not be considered the agent of the Town in the
construction, erection or operation of any Improvements.
f. If Developer fails to complete the Improvements as required by this
Agreement, the Town shall have the right, but not the obligation, to: complete the
Improvements; restore the Property to the condition it was prior to commencement of
construction of the Improvements; or restore the Property to a condition that the Town
deems safe while awaiting completion of the Improvements by another party; and to
charge the costs thereof to Developer.
4. Development Fee. Developer shall be entitled to a development fee (the
"Development Fee ") in connection with the Development. The amount of the
Development Fee shall not exceed the maximum development fee allowed by the
Colorado Housing and Finance Authority under its qualified allocation plan adopted on
October 25, 2012 and approved by the governor on January 16, 2013. The Development
Fee may be paid from any project sources including, without limitation, debt proceeds,
equity proceeds, and income from the Development.
5. Development Income. Income from the Development shall be distributed in the
following order of priority:
a. To pay all Development costs and operating and maintenance expenses,
including without limitation property management fees and the Development Fee.
b. To pay principal and interest on Development debt.
C. To fund any reserves required by any lender related to the Development
(each a "Lender Reserve ").
d. To pay the required return on investment to any equity investors in the
Development.
e. To fund a project reserve (the "Project Reserve "), which shall be used for
any shortfalls in subsections a -d hereof. Upon termination of the Ground Lease, if any
amounts remain in the Project Reserve or any Lender Reserve, such amounts shall be
remitted to the Town.
f. In the event all Lender Reserves are fully funded in the amount required
by the lender, and the amount of the Project Reserve is at least $150,000, any amount in
excess of $150,000 shall be distributed 50% to the Town and 50% to Developer.
6. Term. This Agreement shall commence on the Effective Date, and shall terminate
upon termination of the Ground Lease.
7. Security. Developer shall require the general contractor responsible for
constructing the Improvements to provide a performance bond to Developer to guarantee
the construction of the Improvements. The performance bond shall be equal to the full
amount of the cost of construction of the Improvements. Developer shall provide a copy
Resolution No. 9, Series 2014
of such performance bond to the Town prior to commencing construction of the
Improvements.
8. Insurance. Throughout the term of this Agreement, Developer shall maintain the
following insurance, and certificates of such insurance shall be furnished to the Town
within 30 days of the Effective Date and at each subsequent policy renewal date:
a. Commercial general liability insurance, including contractual liability,
with limits of not less than $2,000,000 per occurrence for bodily injury, personal injury
and property damage, naming the Town as an additional insured.
b. Fire and extended coverage insurance covering the Property for injury or
damage by the elements, or through any other cause, in an amount not less than the full
actual replacement cost of the Property and Improvements, and sufficient to prevent the
Town or Developer from becoming a co- insurer of any partial loss.
C. During the course of any construction or repair of Improvements, Builders'
Risk Insurance.
Developer Default and Remedies.
a. Each of the following is a Developer default of this Agreement:
i. If Developer fails to perform any of its obligations under this
Agreement and fails to remedy the same within 30 days after Developer is given a
written notice specifying the same; provided that, if the nature of the violation is
such that it cannot reasonably be remedied within 30 days, and Developer
provides evidence to the Town that the violation cannot reasonably be remedied
within 30 days, then the violation shall be remedied as soon as reasonably
practicable, but in any case, within 180 days of the original notice of violation.
ii. If an involuntary petition is filed against Developer 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
Developer, is appointed without acquiescence, and such petition or appointment is
not discharged or stayed within 120 days after the happening of such event.
iii. If Developer 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.
b. If a Developer default occurs, the Town may, in its sole discretion and
without waiving any other rights under this Agreement or available to the Town:
i. Withhold issuance of certificates of occupancy not yet issued for
any buildings on the Property until said default has been remedied;
Resolution No. 9, Series 2014
ii. Cause construction of all or part of the Improvements to be
completed, and recover the costs of such completion from Developer; and
iii. Cause the removal of any partially constructed Improvements and
return of the Property to the condition it was prior to the commencement of
construction, and recover the costs of such removal from Developer.
C. In addition to the specific remedies set forth herein, 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, and any damages alleged by the
Town may include lost rents.
d. If the Town proceeds to complete the Improvements, Developer shall, at
the request of the Town, promptly deliver a copy to the Town of all of Developer's plans
and specifications related to the Improvements.
10. Town Default and Remedies.
a. The following is a Town default of this Agreement: if the Town fails
perform any of its obligations under this Agreement and fails to remedy the same within
30 days after the Town is given a written notice specifying the same; provided that, if the
nature of the violation is such that it cannot reasonably be remedied within 30 days, and
the Town provides evidence to Developer that the violation cannot reasonably be
remedied within 30 days, then the violation shall be remedied as soon as reasonably
practicable, but in any case, within 180 days of the original notice of violation.
b. If a Town default occurs, Developer shall have all remedies available at
law or equity, and the exercise of one remedy shall not preclude the exercise of any other
remedy.
11. Notices. Any notice under this Agreement shall be in writing and may be given
by U.S. Mail, postage prepaid, addressed as set forth herein; or hand - delivery. Notice
shall be effective three days after mailing or immediately upon hand - delivery. The
addresses of the Parties shall, unless changed in writing, be as follows:
The Town: Town Manager
Town of Vail
75 South Frontage Road
Vail, CO 81657
Developer: Lion's Ridge Apartment Homes, LLC
200 North Main Street
Oregon, WI 53575
Attn: Gary J. Gorman
With a copy to: Willis J. Wright, Jr.
Wright and Company, Inc.
P.O. Box 7270
Resolution No. 9, Series 2014
Avon, CO 81620
12. Costs. Except as otherwise set forth herein, each Party shall be responsible for its
own costs under this Agreement.
13. Modification. This Agreement may only be modified by subsequent written
agreement of the Parties.
14. Integration. This Agreement and any attached exhibits constitute the entire
agreement between Developer and the Town, superseding all prior oral or written
communications. This Agreement shall supersede the Pre - Development Agreement
between the Town and Developer dated November 4, 2013.
15. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective heirs, successors and assigns.
16. Severability. 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.
17. 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.
18. Assignment. 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; provided, however, that Developer may make a single assignment of this
Agreement to a limited liability company in which Developer is a member without such
prior written approval. Developer shall provide the Town with written notice of such
assignment within thirty (30) days thereof.
19. Third Parties. There are no intended third -party beneficiaries to this Agreement.
20. 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.
21. 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.
22. Force Majeure. Neither the Town nor Developer shall be in breach of this
Agreement if a failure to perform any of the duties under this Franchise 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, storms, fires, sabotage, terrorist attack,
Resolution No. 9, Series 2014
strikes, riots, war, labor disputes, forces of nature or the authority and orders of
government.
23. Recording. This Agreement shall be recorded with the Eagle County Clerk and
Recorder subsequent to the Deed Restriction, but prior to any mortgage or other
encumbrance on the Improvements or the Property. The obligations of Developer under
this Agreement shall run with the land, and shall be binding on any subsequent holder of
an interest in the Improvements or in the Property.
Resolution No. 9, Series 2014
WHEREFORE, the Parties have executed this Agreement on the day and year
first above written.
ATTEST:
Tammy Nagel, Acting Town Clerk
LION'S RIDGE APARTMENTS, LLC
By:
Name:
Its:
STATE OF COLORADO )
ss.
COUNTY OF )
before me
TOWN OF VAIL, COLORADO
Andy P. Daly, Mayor
The foregoing instrument was subscribed, sworn to, and acknowledged
this day of 2014, by
as the of Lion's Ridge
Apartments, LLC.
My commission expires:
(SEAL)
Notary Public
Resolution No. 9, Series 2014
EXHIBIT A
LEGAL DESCRIPTION
Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision,
Block C, A Resubdivision of Lots 1, 2, 3, 4 & S, Town of Vail, County of Eagle, State of
Colorado.
Resolution No. 9, Series 2014