HomeMy WebLinkAbout2018-05 Amendment to the Development Agreement for Solar VailRESOLUTION NO. 5
SERIES 2018
A RESOLUTION OF THE VAIL TOWN COUNCIL APPROVING AN
AMENDMENT TO THE DEVELOPMENT AGREEMENT FOR SOLAR
VAIL
WHEREAS, on October 25, 2017, the Town, the Vail Local Housing Authority (the
"VLHA") and the developer of the Solar Vail project, Sonnenalp Properties, Inc., entered
into a Development Agreement to establish terms and conditions of the project; and
WHEREAS, the parties to the Development Agreement wish to amend certain
deadlines in the Development Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL:
Section 1. The Amendment to Development Agreement among the Town, the
VLHA and Sonnenalp Properties, Inc. is hereby approved in substantially the form
attached hereto, subject to final approval of the Town Attorney. Upon such approval,
the Town Manager is authorized to execute the Amendment to Development
Agreement.
2018.
INTRODUCED, READ, APPROVED AND ADOPTED THIS 16th d -y of January,
• -ve Chapin, Mayor
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made this
day of , 2017 (the "Effective Date"), by and among the Town of Vail,
Colorado, a Colorado home rule municipality with an address of 75 South Frontage
Road, Vail, Colorado 81657 (the "Town"), the Vail Local Housing Authority, a local
housing authority with an address of 75 South Frontage Road, Vail, Colorado 81657
(the "VLHA"), and Sonnenalp Properties, Inc. a Colorado corporation with an address of
20 Vail Rd., Vail, CO 81657 ("Developer") (each individually a "Party" and collectively
the "Parties").
WHEREAS, Developer is the owner of certain real property more particularly
described in Exhibit A, attached hereto and incorporated herein by this reference (the
"Property");
WHEREAS, Developer plans to develop the Property for rental employee
housing (the "Development");
WHEREAS, the Development will be subject to a Deed Restriction for the benefit
of the Town in the form attached hereto as Exhibit B and incorporated herein by this
reference (the "Deed Restriction");
WHEREAS, in exchange for the Deed Restriction, the Town will compensate
Developer as set forth herein; 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:
1. General Terms of Development. At this time, the Parties anticipate that the
Development will consist of 65 residential dwelling units (each a "Unit" and collectively
the "Units") within one building, together with associated landscaping, lighting, driveway,
parking and walkway improvements, as well as renewable energy options and multi-
modal transportation options. The final design and layout of the Development is subject
to approval of the Town's Planning and Environmental Commission ("PEC") and Design
Review Board ("DRB"), and will be set forth in an approved development plan (the
"Approved Plan").
2. Town Contribution. For completion of the Development in accordance with the
Approved Plan and this Agreement, the Town shall pay Developer $4,225,000 (the
"Town Contribution"). The Town Contribution is based on a per Unit price of $65,000
(for 65 Units). If the Approved Plan includes less than 65 Units, the Town Contribution
shall automatically be reduced accordingly, on a per -Unit basis. The Town Contribution
shall also be reduced by the actual amount of any grant received by Developer from any
other source.
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3. Obligations of the Town.
a. Payment. On or before January 15, 2018, if Developer has complied with
the Approved Plans and this Agreement, the Town shall place the Town Contribution in
a restricted escrow account, to be released back to the Town only if Developer fails to
complete the Development in accordance with this Agreement and the Approved Plan.
If Developer completes the Development in accordance with this Agreement and the
Approved Plan, the Town Contribution shall be released from the restricted escrow
account to Developer within 30 days of issuance of any certificate of occupancy for the
Development.
b. Right -of -Way and Easements. The Town shall, as permitted by law, use
its best efforts to secure required rights-of-way and easements to allow Developer to
fulfill its obligations under this Agreement and to proceed with the Development,
provided that this Section shall not impose any fiscal obligation on the Town.
4. Obligations of the VLHA. The Parties acknowledge their intent that the Property
is to be exempt from ad valorem property taxes pursuant to C.R.S. § 29-4-227. If
necessary to obtain such tax exemption, as permitted by law, the VLHA shall take an
ownership interest Developer's entity.
5. Obligations of Developer.
a. Construction of Improvements. Developer shall, at its sole cost and in
compliance with this Agreement, the Approved Plan and the Vail Town Code, construct
all new improvements on the Property, including the Units, signage, streets, sidewalks,
utilities and other improvements necessary for the Development. Developer shall obtain
final PEC approval of the Development on or before January 8, 2018, and shall deliver
to the Town a final, executed agreement with a manufacturer of the modular
components of the Development on or before March 3, 2018,
b. Applications, Plans and Permits. Developer shall prepare all applications,
design drawings and plans for the Development, and shall be responsible for obtaining
all required permits for the Development.
c. Financing. 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. Books and Records. Developer shall maintain all books and records
related to the Development for inspection by the Town upon request.
e. Authority. Developer shall have no right, authority or power to bind the
Town for any claim for labor or for material or for any other charge or expense incurred
in delivering the Development or performing any alteration, renovation, repair,
refurbishment or other work. Developer shall not be considered the agent of the Town
in the construction, erection or operation the Development.
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f. Existing Deed Restrictions. Developer shall exchange the 9 existing deed
restrictions on the Property to other locations in the Town, pursuant to the procedure set
forth in the Vail Town Code, as amended.
g. Deed Restriction. Prior to issuance of any certificate of occupancy for the
Development, Developer shall execute the Deed Restriction and record the Deed
Restriction against the Property. The Deed Restriction shall be a first and prior lien on
the Property, and any financing obtained by Developer shall be expressly subordinate to
such Deed Restriction. The Units subject to the Deed Restriction shall not entitle
Developer to any credit under Section 12-23-7 or Section 12-23-8 of the Vail Town
Code.
h. Compliance with Law. Developer and its agents and contractors shall
comply with all applicable law, including without limitation all current and future federal,
state and local statutes, regulations, ordinances 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, disposal, transportation, handling, removal, remediation or investigation of a
Hazardous Material; and the protection of human health, safety or the indoor or outdoor
environmental, including (without limitation) the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"); the
Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. ("RCRA"); the Toxic
Substances Control Act, 15 U.S.C. § 2601, et seq.; the Clean Water Act, 33 U.S.C. §
1251, et seq.; the Clean Air Act; the Federal Water Pollution Control Act; the
Occupational Safety and Health Act; all applicable Colorado environmental laws; and all
other federal, state or local laws and regulations relating to, or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous waste, substance
or material, now or at any time hereafter in effect.
6. Term. This Agreement shall commence on the Effective Date, and shall
terminate upon the issuance of a final certificate of occupancy for the Development.
7. Remedies.
a. If the Town fails to pay the Town Contribution as provided herein,
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, provided that Developer
shall not have the remedy of specific performance against the Town.
b. If Developer fails to obtain final PEC approval of the Development by
January 8, 2018, or if Developer fails to deliver to the Town a final, executed agreement
with a manufacturer of the modular components of the Development by March 3, 2018,
the Town shall have no obligation to pay the Town Contribution. In addition, the Town
may exercise any remedy at law or in equity, and the exercise of one remedy shall not
preclude the exercise of any other remedy, and any damages alleged by the may
include lost rents.
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8. Miscellaneous.
a. Modification. This Agreement may only be modified by subsequent written
agreement of the Parties.
b. Integration. This Agreement and any attached exhibits constitute the
entire agreement between Developer and the Town, superseding all prior oral or written
communications.
c. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and assigns.
d. 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.
e. 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.
f. 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, except for: an assignment to an entity created by Developer to construct the
Development, with notice to the Town; or an assignment for the benefit of a lender or
lenders in which case such lender(s) shall have all of the rights and obligations of
Developer under this Agreement.
g. Third Parties. There are no intended third -party beneficiaries to this
Agreement.
h. 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.
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.
j. Independent Contractor. Developer is an independent contractor.
Notwithstanding any other provision of this Agreement, all personnel assigned by
Developer to perform work under the terms of this Agreement shall be, and remain at all
times, employees or agents of Developer for all purposes. Developer shall make no
representation that it is a Town employee for any purposes.
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k. Notice. Any notice under this Agreement shall be in writing, and shall be
deemed sufficient when directly presented or sent pre -paid, first class United States
Mail to the Party at the address set forth on the first page of this Agreement.
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, 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, attorneys or employees.
m. Recording. This Agreement shall be recorded with the Eagle County
Clerk and Recorder. The benefits and obligations of the Parties under this Agreement
shall run with the land, and shall be binding on, and enforceable by, any subsequent
holder of an interest in the Property.
WHEREFORE, the Parties have executed this Agreement as of the Effective
Date.
ATTEST:
Patty McKenney, Town Clerk
ATTEST:
Secretary
STATE OF
COUNTY OF
) ss.
TOWN OF VAIL, COLORADO
Greg Clifton, Town Manager
VAIL LOCAL HOUSING AUTHORITY
Steve Lindstrom, Chair
DEVELOPER
The foregoing instrument was subscribed, sworn to, and acknowledged
before me this day of , 2017, by
My commission expires:
(S E A L)
5
Notary Public
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EXHIBIT A
LEGAL DESCRIPTION
Lot 8, Block 2, Vail Potato Patch Subdivision
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