HomeMy WebLinkAbout2007-09-18 Support Documentation Town Council Evening Session PART 2 of 2RESOLUTION N0.23
Series of 2007
A RESOLUTION APPROVING THE DEVELOPMENT IMPROVEMENT AGREEMENT
BETWEEN THE TOWN OF VAIL AND OPEN HOSPITALITY/HILLWOOD CAPITAL
PARTNERS, DATED AS OF SEPTEMBER 6, 2007; 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"); and
WHEREAS, the members of the Town Council of the Town (the "Council") have been
duly elected and qualified; and
WHEREAS, After nearly six months of negotiation, the Town and aTexas-based
development group, Open Hospitality/Hillwood Capital Partners, dba OHP Vail One, LLC ("OHP")
have completed a proposed Development Improvement Agreement- (the "Agreement") for the
redevelopment of the LionsHead parking structure; and
WHEREAS, The negotiation described above was preceded by a year long competitive
review process which included redevelopment proposals submitted by two developers, and
resulted in the selection of OHP by the Council; and
WHEREAS, OHP has proposed a $600 million mixed-use development on the site to
include two hotels, residences, commercial space, a conference center, additional public parking,
a transit center, a new visitor information center and other community amenities; and
WHEREAS, Town staff and consultants, along with representatives from OHP, held a
community meeting on September 10, 2007, to review with the public the details of the
Agreement; and
WHEREAS, the Council considers it in the interest of the public health, safety and welfare
to approve the Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO THAT:
Section 1. The Development Improvement Agreement by and between the Town of Vail and
OHP Vail One, LLC; dated September 6, 2007, is hereby approved by the Council.
Section 2. The Town Manager is hereby authorized to execute and deliver the Agreement
on behalf of the Town.
Section 3. This Resolution 23 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 18th day of September, 2007.
Rodney E. Slifer,
Mayor of the Town of Vail
ATTEST:
Lorelei Donaldson,
Town Clerk
Resolution No. 23, Series 2007
SUMMARY OF LIONSHEAD PARKING STRUCTURE DEVELOPMENT
IMPROVEMENT AGREEMENT
Town Council will consider approval of the Development Improvement Agreement for
the Lionshead Parking Structure on September 18, 2007. The Agreement is the
culmination of a process that began with the issuance of a request for proposal. for the
redevelopment of the Lionshead Parking Structure in May, 2006. Six developers
responded to the request for proposals and consideration was narrowed to two
developers, East-West Partners and Open/Hillwood. On March 13, 2007, the 'Town
Council selected the Open/Hillwood proposal and entered into exclusive negotiations
with this team. This Development Improvement Agreement reflects extensive
negotiations by Town staff at the direction of Town Council.
The proposal envisions the demolition of the existing parking structure and the;
construction of a new parking structure over a three year period. The new parking
structure will have parking for approximately 1450 cars as well as parking for the new
hotels, condos and retail development on the site. There will be a transportation center
integrated into the parking structure for ECO buses and Town buses. A conference
center is also part of the public improvements. Following construction of the new
parking structure, Open/Hillwood will construct two hotels and related condos above the
parking structure and approximately 60,000 square feet of retail will be constructed along
East Lionshead Circle.
Timeline
The Agreement is organized around four activities: a Planning and Entitlement Period,
Escrow Delivery, Final Closing and Conveyance and the Construction Phase.
Planning and Entitlement Period: This Period begins with signing of the Agreement is
the 3`~ quarter of 2007 and is expected to be completed by the end of 2008.
Upon approval of the Agreement, detailed negotiations will proceed on several
supplemental agreements. Vail Resorts holds a right to reversion of the Lionshead
Parking Structure site if the property is used for any purpose other than as a parking
garage. Town and Vail Resorts will negotiate and enter into a Deed Restriction
Agreement which will be a commitment from Vail Resorts to release the deed restriction
upon the occurrence of specified events. The Town Council will also need to approve an
Interim Parking Management Plan to insure that adequate parking is available in the
unlikely possibility that the second phase of the new parking garage is not completed by
the beginning of the ski season.
In addition, the Town and Open/Hillwood will examine in detail the options fon• the
Conference Center. Open/Hillwood's proposal envisions a conference center of
approximately 34,000 square feet. The Town and Open/Hillwood agree that further
investigation may indicate that a modification of the proposed configuration would be
advantageous to both parties. If that is the case, a revised Conference Center design will
be presented to the Town Council for approval within 120 days of the approval of the
Agreement. Finally, the development must comply with the employee housing
requirements of the Town. The Town and Open/Hillwood will specify how those
requirements will be met through an agreement submitted to the Town Council within 60~
days of the signing of the Agreement.
On March 15, 2008, Open/Hillwood will submit to the Council a Project. Plan. The
Project Plan will show internal layouts, building footprints, massing, circulation patterns,
and major architectural concepts. Approval by Council of the Project Plan will authorize
the Town Manager to sign the application necessary to begin the entitlement process.
The Project Plan is intended to be a milestone which will trigger substantial expenditures
by Open/Hillwood for detailed design, architecture and engineering. It is estimated that
Open/Hillwood will expend approximately $40,000,000 by the time of Final Closing and
Conveyance for development expenses.
The Town and Open/Hillwood will cooperate in obtaining approval of zoning and of
development plans from the PEC and DRB. It is anticipated that vested rights will be
granted upon completion of all approvals by the PEC and DRB for a period extending 3
years after completion of the New Parking Structure.
Escrow Delivery
Once all approvals have been obtained and ancillary agreements, including a Shared
Facilities Agreement, CDOT approval of the roadway changes, etc., all documents will
be placed in escrow. It is anticipated that this will be accomplished by the end of 2008.
At this point, The Town will be ready to convey the property rights for the two hotels, but
9-12 months will be necessary for construction drawings to be prepared, for a
construction contract to be negotiated.
Final Closing
Closing on the land transaction is scheduled to occur on February 1, 2010. At that time,
OpenlHillwood will receive a deed for the Development Parcel, which includes the air
rights and development rights on the site, excluding the Parking Structure Parcel which is
all other rights in the property: Following Closing, Open/Hillwood will commence
construction.
Construction Phase
The new Parking Structure construction is divided into 3 phases:
1. April 1, 2010-March 31, 2011: This will include demolition of the charter bus
parking and the east end of the garage, reconfiguration of the access to the
2
existing parking garage, and Frontage Road improvements. During this phase,
1090 parking spaces will be available.
2. April 1, 2011-March 31, 2012: This will involve demolition and reconstruction of
the center of the existing garage. Construction will be sufficiently complete by
December 15, 2011, so that 1100 parking spaces will be available. The contractor
will go to multiple shifts if necessary.
3. April 1, 2012-September 1, 2013: The west end of the existing garage will be
demolished and the remaining spaces constructed.
Construction of the first hotel is scheduled for Apri12012. The second hotel will begin
construction in Apri12013 and the Conference Center and retail will begin construction
March 2013.
Letter of Credit
It is vital to the. Town that once any portion of the existing parking structure is
demolished, that adequate parking is constructed to replace any parking spaces that are
removed. One of the critical elements of the Agreement is assurance that the New
Parking Structure will be completed if started and that the second phase of the
construction will be completed by December 15. Under no circumstances can financial
problems of Open/HiIiwood delay or jeopardize completion of any phase of the New
Parking Structure. The Agreement provides for Open/Hillwood to post letter of credit to
guarantee continuous construction. If the contractor notifies the Town that it is not being
paid, the Town will be able to draw on the letter of credit. The amount of the letter of
credit will be sufficient to insure that construction of the new parking structure will be
completed.
Town's Right to Reenter and Repossess
In the event Open/Hillwood defaults on its obligations (most likely, by failure to timely
construct improvements), the Town has the option to take back the project and to find a
new developer. In the event the Town takes back the project and finds a new developer,
the Town will be entitled to its costs, then Open/Hillwood would be entitled to its costs,
and any surplus would belong to the Town.
3
FOR VAIL TOWN COUNCIL CONSIDERATION
DEVELOPMENT IMPROVEMENT AGREEMENT
by and between the
TOWN OF VAIL, COLORADO,
a Colorado home rule town,
and
OHP VAIL ONE, LLC,
a limited liability company organized under the laws of the State of Del;~ware
Dated as of [SeptQ+ebar 61, 2007
TABLE OF CONTENTS
ARTICLE I DEFINITIONS .........................
Section 1.01 Internal References..........
Section 1.02 Specific Terms .................
Section 1.03 Other Defmitions .............
Section 1.04 Rules of Construction......
Section 1 OS Exhibits
........................................................................ 3
....................................................................... 3
........................................................................ 3
...................................................................... ].3
...................................................................... ].3
l3
. ....................................................................................................
ARTICLE II PROJECT DESCRIPTION ............................................................................. . l 4
Section 2.01 Selection and Engagement ...........:......................................................... . 14
Section 2.02 Description of Project ............................................................................. . 14
Section 2.03 Schedule of Conveyance of Title and Interests in Project ...................... . 16
Section 2.04 Operation and Maintenance of Improvements ....................................... . 17
Section 2.05 Development Terms :.............................................................................. . 18
Section 2.06 Vested Property Rights ..................................:......................................... 18
ARTICLE III PLANNING AND ENTITLEMENT PERIOD ..............................:................. 19
Section 3.01 'Term ........................................................................................................19
Section 3.02 Site Investigation, Entitlements, and Design ..................:........................ 19
Section 3.03 License to Enter and Access ..........................................................:......... 2~0
Section 3.04 Title Commitment ................................................................................... 2~0
Section 3.05 Survey ...................................................................................................... 20
Section 3.06 Lionshead Redevelopment Master Plan Amendment ............................. 21
Section 3.07 Zoning Process and Entitlement Activities ............................................. 21
Section 3.08 Project Plan .............................................................................................. 21
Section 3.09 Town Obligations During Planning and Entitlement Period ................... 2 l
Section 3.10 Developer Obligations During Planning and Entitlement Period........... 2:3
Section 3:11 Employee Housing .................................................................................. 24
Section 3.12 Indemnification ....................................................................................... 24
Section 3.13 Extension of Planning and Entitlement Period ........................................ 24
ARTICLE IV ESCROW DELIVERY, CONVEYANCE OF SITE
AND FINAL CLOSING ................:................................................................. 24
Section 4.01 Escrow Delivery; Final Closing. ..........................................
................... 2~~
Section 4.02 Conveyance Price .................................................................................... 2~~
Section 4.03 Escrow Delivery Conditions ................................................................... 2~~
Section 4.04 Certificates at Escrow Delive
ry ............................................................... '
2 i
Section 4.05 Parties Option to Extend Escrow Delivery or to Terminate .................... 28'.
Section 4.06 Escrow Delivery ...................................................................................... 28
Section 4.07 Final Closing ........................................................................................... 28
Section 4.08 Title ......................................................................................................... 29
ARTICLE V CONSTRUCTION ........................................................................................... 29
Section 5.01 Generally ................................................................................................. 29
i
Section 5.02 Constriction of the New Parking Structure and Parking Related
Infrastructure ........................................................................................... 3 0
Section 5.03 Construction ofNon-Parking Infrastructure ............................................ 32
Section 5.04 No Expense to Town ............................................................................... 34
ARTICLE VI CONFERENCE CENTER ............................................................................... 34
Section 6.01 General .................................................................................................. .. 34
Section 6.02 Ownership and Operation ...................................................................... .. 35
Section 6.03 Conference Center Board ...................................................................... .. 36
Section 6.04 Conference Center Services ...................................................,............... .. 36
ARTICLE VII FINANCING ...:.............................................................................................. .. 36
Section 7.01 General ..:................................................................................:.............. .. 36
Section 7.02 Metropolitan District(s) .....................................................................:... .. 36
Section 7.03 Supplemental Financing ........................................................................ .. 37
Section 7.04 Holder Not Obligated to Construct ....................................................... .. 37
Section 7.05 Copy of Notice of Default to Holder ............................................
.........
.. 37
Section 7.06 Holder's Option to Cure Defaults ........................................................... 38
Section 7.07 Rights of Lenders and Interested Parties ................................................. 38
Section 7.08 Miscellaneous .......................................................................................... 38
ARTICLE VIII LETTER OF CREDIT .................... 39
................................................................. .
Section 8.01 New Parking Structure Letter of Credit .................................................. 39
Section 8.02 Garage LOC Characteristics ................................................................... . 39
Section 8.03 Drawing on the Garage LOC .................................................................. . 40
Section 8.04 Termination of Garage LOC ................:................................................. . 40
ARTICLE IX TOWN OBLIGATIONS AND COVENANTS .............................................. . 40
Section 9.01 Town Obligations After Escrow Delivery .............................................. . 40
Section 9.02 Covenant to Maintain Improvements ..................................................... . 41
ARTICLE X DEVELOPER OBLIGATIONS AND COVENANTS ................................... . 41
Section 10.01 Developer Obligations After Escrow Delivery ........................................ 41
Section 10.02 Covenant to Maintain Private Improvements .......................................... 42
Section 10.03 Plans, Reports, Studies and Investigations .............................................. 43
Section 10.04 Commencement and Completion of Construction .................................. 43
Section 10.05 Developer's Affiliates ........... 43
..................................................................
ARTICLE XI REP RESENTATIONS, AND WARRANTIES ............................................... 43
Section 11.01 Developer Representations and Warranties ............................................. 43
Section 11.02 Town Representations and Warranties ................................:. .......... 44
ARTICLE XII GENERAL COVENANTS, INDEMNITY AND RESPONSIBILI'TY........... 47
Section 12.01 Cooperation ..........................................................:................ 47
Section 12.02 ..................
Anti-Discrimination in Employment .................................... ...
................ 47
Section 12.03 Construction of the Project .......................
.......... 47
Section 12.04 .....................
.
...............
Vacation and Dedication of Rights of Way ...................... ................
47
ii
Section 12.05 Town's Responsibility ............................................................................. X17
Section 12.06 Notification of Claim ................................................................................ 48
Section 12.07 Developer's Indemnification ................................................................... 48'
Section 12.08 Town's:Indemnification .......................................................................... ~G8
Section 12.09 No Waiver of Governmental Immunity .................................................. 48
ARTICLE XIII INSURANCE REQUIREMENTS ................................................................... 4~9
Section 13.01 Insurance Required From Effective Date to Final Closing Date ............. 4~9
Section 13.02 Insurance Required From Closing Date to Date of Project Final
Completion .............................................................................................. ~ 5~ 0
Section 13.03 General Insurance Requirements ............................................................. 5~ 1
ARTICLE XIV EVENTS OF DEFAULT, REMEDIES AND TERMINATION ..................... 5~3
Section 14.01 Events of Default After Escrow Delivery Date ....................................... 53
Section 14.02 Default Notice ......................................................................................... 53
Section 14.03 Town's Option to Reenter and Repossess Portions of the Project.......... 54
Section 14.04 Developer's Remedies ............................................................................. 55
Section 14.05 Termination by the Town Prior to Escrow Delivery Date........ ............... 56
Section 14.06 Termination by Developer Prior to Escrow Delivery Date ..................... 56
Section 14.07 Option to Terminate ................................................................................ 56
Section 14.08 Action to Terminate ................................................................................. 56
Section 14.09 Effect of Termination .............................................................................. 5'7
Section 14.10 Scheduled Termination ............................................................................ 57
Section 14.11 Survival After Termination ........................... ......................
.................... 5'7
ARTICLE XV RESTRICTIONS ON ASSIGNMENT AND TRANSFER ............................. 5'7
Section 15.01 Representations as to Development ............................. ....... 5'7
....................
Section 15.02 Limitation on Assignment ....................................................................... 5'7
Section 15.03 .Effect Upon Obligations .......................................................................... 573
ARTICLE XVI MISCELLANEOUS .......................................................
58
Section 16.01 Amendment of Agreement ...................................................................... 58
Section 16.02 No Implied Waiver .................................................................................. 58
Section 16.03 Notices ..................................................................................................... 58
Section 16.04 Waiver ..................................................................................................... SS-
Section 16.05 Attorneys' Fees ........................................................................................ 60
Section 16.06 Conflicts of Interest ...................................... .....................
...................... 60
Section 16.07 Titles of Sections ..................................................................................... 6G
Section 16.08 Town Not a Partner; Developer Not Town's Agent ................................ 60
Section 16.09 Applicable Law; Venue ........................................................................... 60'
Section 16.10 Binding Effect ......................................................................................... 60
Section 16.11 Further Assurances .................................................................................. 60
Section 16.12 Severability .............................................................................................. 60
Section 16.13 Good Faith; Consent or Approval ........................................................... 61
Section 16.14 Counterparts ............................................................................................ 61
Section 16.15 Non-Liability of Town Officials and Employees .................................... 61
Section 16.16 Incorporation of Exhibits ......................................................................... 61
ni
Section 16.17 Jointly Drafted; Rules of Constniction .................................................... 61
Section 16.18 Brokers .................................................................................................... 61
Section 16.19 Non-Discrimination ................................................................................. 62
Section 16.20 Confidentiality of Materials ..........:......................................................... 62
Section 16.21 Effectiveness: Complete Understanding ................................................. 62
Section 16.22 Time of the Essence .....:....................................................:..................... 62
Section 16.23 Covenants Running With the Land ......................................................... 63
Section 16.24 Recording ................................................................................................ 63
EXHIBIT A Site Description
EXHIBIT B Site Map
EXHIBIT C. Project Description (Exhibit C is not attached hereto because of its size and is on
file at the Office of the Town Manager)
EXHIBIT C-1 Proposal
EXHIBIT C-2 Supplement
EXHIBIT C-3 Traffic Patterns and Parking Program
EXHIBIT D Conference Center Summary
iv
DEVELOPMENT IMPROVEMENT AGREEMENT
THIS DEVELOPMENT IMPROVEMENT AGREEMENT is dated. as of [ •],
2007 (the "Effective Date"), and is entered into by and between the TOWN OF VAIL,
COLORADO, a Colorado home rule town, with offices at 75 South Frontage Road, Vail,
Colorado 81657 (the "Town") and OHP VAIL ONE, LLC, a limited liability company organized
under the laws of the State of Delaware ("Developer"), located at 2525 McKinnon Street, Suite
750, Dallas, Texas 75201, upon the terms and conditions set forth below. The Town and
Developer may be referred to hereinafter collectively as the "Parties" and each individually as a
« ~,
Part
Recitals
Capitalized terms used in these Recitals have the meanings set forth in Section 1.02 of
this Agreement. This Agreement is made with respect to the following facts:
A. The Town is the owner of certain real property commonly referred to as the
Lionshead Parking Structure and an unimproved charter bus parking lot located in the Town of
Vail, Colorado at 395 South Frontage Road, as legally described on Exhibit A hereto
(collectively, the "Site"). The Site is owned by the Town and consists of approximately 6.6
acres, on which the Town currently operates a 1,150 space. public parking structure. The Site .is
legally. described on Exhibit A hereto, which is made a part hereof, and is as depicted on the
"Site Map," attached as Exhibit B hereto, which is made a part hereof. The Site is located within
the' "Lionshead Master Plan study area" identified in the Lionshead Redevelopment Master Plan
(as defined herein).
B. On May 10, 2006, the Town issued its "Request for Proposals: To redevelop
existing parking structure in Vail, Colorado as a mixed use development providing over 1,150
public parking spaces" (the "RFP") for the potential mixed-use redevelopment of the Site.
Developer was one of two entities to respond to the RFP. The Developer's RFP response
included those documents attached hereto as Exhibits C-1 and C-2 (the "RFP Response"). As
the result of this process, on March 13, 2007, the Town Council authorized the staff to begin a
120 day period of exclusive negotiations with Developer for the redevelopment of the Site.
C. The Town, in preparing the RFP, identified certain goals and concepts for the
Site, including, but not .limited to the following: (i) the existing parking structure needs botls
capital and operational improvements and the Town needs an additional 400-500 additional
public parking spaces to minimize overflow parking on South Frontage Road to 15 days per
winter season; (ii) the redevelopment of the Site should include retail on the south side, as called
for in the Lionshead Redevelopment Master Plan, and pedestrian, transit, and vehicular
circulation needs to be improved between the Site and the Lionshead retail area; (iii) thc;
Lionshead information center needs to be improved; (iv) the Town has a strong preference four
active lodging uses that encourage short-term stays, especially during off-season months; (v) the;
need for development of meeting/evendconference facilities accessory to hotel and lodging uses;;
(vi) the need to provide loading and delivery for uses created on the Site, which can also be used
by adjacent Lionshead retail uses; (vii) the need for siting a Lionshead transit facility on the Site;
to accommodate 5 buses for regional bus traffic; and (viii) the need to make South Frontage:
Road improvements consistent with the Lionshead Redevelopment Master Plan and acceptable
to the Town and the Colorado Department of Transportation.
D. As proposed by the Developer, the Project will address the several components
above and identified by the Town in the RFP. The RFP Response proposed: (i) replacement of
the current parking facility with a new parking facility having approximately 1,450 public
parking spaces, plus additional parking as may be required by the Zoning Regulations in order to
support the uses in (ii) through (ix) of this paragraph; (ii) a retail oriented pedestrian street; (iii) a
fully integrated transportation center with 5 ECO Bus/ Town Shuttle Bus bays and local day
skier drop-offs; (iv) a conference center; (v) a new roundabout and frontage road improvements;
(vi) a new Town information center; (vii) on-site replacement of certain facilities currently
located in the Existing Garage (as defined herein); (viii) two new hotels, with no less than 240
guest rooms, no more than 130 residential units, and no less than 25 fractional fee touts allocated
between the two hotels; and (ix) approximately 60;000 square feet of retail space. A current
detailed project description is incorporated by reference as if it were attached as Exhibit C.
E. The Parties intend that the new parking structure (with the exception of
approximately 300 privately owned parking spaces related to the hotels, condominium units and
fractional fee units), the transit center, the information center and certain road improvements will
be owned, operated and maintained by the Town, but will be constructed by the Developer at the
Developer's expense. The Parties presently expect that the conference center will be owned,
operated and maintained by a metropolitan district, but will be constructed by the Developer for
the metropolitan district at the Developer's expense, which may be reimbursed by the
metropolitan district. The Parties intend that the retail space, hotels, residential and fractional fee
units will be owned, operated and maintained by Developer, and will be constructed by the
Developer at the Developer's expense.
F. In consideration of Developer's commitment to have the Public Improvements
and Private Improvements (as each is defined herein) constructed pursuant to this Agreement,
and in consideration of Developer's other obligations hereunder, Town is willing to convey to
Developer the Town's legal interest in the development areas where the Private Improvements
will be constructed and the Town's legal interest in the development area where the Private
Parking will be constructed.
G. The Parties now desire to enter into this Agreement to set forth the rights,
obligations and method of participation of the Parties with respect to the development of the
Project (as defined herein) on the Site.
Agreement
NOW, THEREFORE, in consideration of the covenants and agreements of the Parties as
hereinafter set forth, and for good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged by each Party hereto, the Parties agree as follows:
2
ARTICLE I
DEFINITIONS
Section 1.01 Internal References. Unless otherwise stated, references in thus
Agreement to Sections, subsections, or Exhibits are to this Agreement.
Section 1.02 ~ecific Terms. As used herein, .the following terms shall have the
following meanings:
"Affiliate" or "affiliate" means, with respect to Developer, (i) any other Person, which,
directly or indirectly, controls or is controlled by, or is under common conti•ol with, Developer
("control," including with correlative meanings, the terms "controlled by" and "under commc-n
control with," shall have the meaning given to the term "Control" in this Section 1.02) and (ii) as
applicable, any investment funds or vehicles, however organized, owned or managed by
Developer or any of its Affiliates.
"Agreement" means this Development Improvement Agreement including the exhibits
attached hereto, as such Agreement may be amended or supplemented from time to time in
writing by the Parties.
"Approved Development Plan" means one or more official development plan(;>)
(individually or collectively) for the Site, which shall have been approved by the DRB, PEC
andlor the Town Council on or before the Escrow Delivery Date in accordance with the Town
Code and the terms and conditions of this Agreement. The Approved Development Plan will
establish the development areas, parcels, land use entitlements for the uses, density and intensity
of development, building footprints and elevations, design standards, and other developmert
terms and conditions for the Project. The Parties acknowledge that the Approved Development
Plan will include design standards that meet or exceed site planning and design criteria of the
Town and that have been mutually agreed to by the Parties during the Town's planning;,
permitting and zoning process.
"Approved Uses" means those land use entitlements, improvements and uses thereof',
which are in accordance with the Lionshead mixed use 1 (LMLT-1) district, set forth in Title 12,
Chapter 7, Article H of the Town Code, as the same may be amended in accordance with the
terms and conditions of this Agreement and the Town Code.
"Business Day" means any day that is not a Saturday, Sunday or federal or State holiday.
"CDOT" means the Colorado Department of Transportation.
"Colorado Open Records Act" means Title 24, Article 72, Sections 101 through 309 oi:'
the Colorado Revised Statutes, as the same maybe amended from time to time.
"Commencement of Construction" means, with respect to any phase of the Project or
portion thereof, Developer's commencement of physical construction, including demolition,
significant site grading or preparation of the Improvements to be constructed. by Developer in
such phase or portion thereof with the intention to continue the work until such Improvements
are completed.
3
"Conference Center" means a conference center with approximately 34,000 total gross
square feet of ballroom, breakout, pre-function and "back of house" space, as may be amended
and supplemented pursuant to the Conference Center Agreement. The Conference Center is a
Public Improvement.
"Conference Center Board" shall have the meaning given to it in Section 6.03 of this
Agreement.
"Conference Center Agreement" shall have the meaning given to it in Section 6.02(b) of
this Agreement.
"Construction Contractors" means any contractors or subcontractors with whom
Developer enters into a Construction Contract to perform work on the Site or Project.
"Construction Contracts" means any agreements entered into between Developer and any
Construction Contractor that set forth terms governing construction on the Site or Project.
"Construction Phase" means, if Final Closing has occurred, a period of time beginning on
the Business Day following the Final Closing Date and ending on the Date of Project Final
Completion, during which development and construction of the Project will occur.
"Control" means, for any Person other than the Town, (i) the legal or beneficial
ownership of more than fifty percent (50%) of the voting stock, limited liability company
membership interests, partnership interests, capital or profits of the Person in question; or (ii) the
possession, directly or indirectly, of the right or ability, whether or •not exercised, to direct or
cause the direction of the management and policies of the Person in question, whether through
the ownership of voting stock, limited liability company membership interests, partnership
interests, capital or profits or by contract or otherwise. A Person shall be deemed to control
another person if such Persons are under common control. Two (2) or more Persons shall be
under common control if fifty percent (50%) or more of the capital, voting or profit interests in
each Person are held by a single Person or a single group of two (2) or more Person;>.
"Control District" shall have the meaning given to it in Section 7.C12(d) of this
Agreement.
"Conveyance Price" shall have the meaning set forth in Section 4.02 of this Agreement.
"County" means the county of Eagle, Colorado.
"Date of New Parking Structure Final Completion" means with respect to the New
Parking Structure and the Parking Related Infrastructure, the completion by Developer or its
Construction Contractors of all or substantially all of the New Parking Structure and Parking
Related Infrastructure Improvements, including Phase I, Phase II and Phase III, to be constructed
or performed in accordance with this Agreement, and when applicable, the receipt of a certificate
of occupancy from the Town. The Parties intend for the Date of New Parking Structure Final
Completion to be September 1, 2013, as such date may be extended in accordance wwith the terms
hereof.
4
"Date of Project Final Completion" means the date on which both the Date of New
Parking Structure Final Completion and the Date of Remaining Project Components Final
Completion have occurred.
"Date of Remaining Project Components Final Completion".means with respect to ttie
Remaining Project Components, the completion of construction by Developer or its Construction
Contractors of all or substantially all of the Improvements to the Remaining Project Components,
to be constructed or performed in accordance with this Agreement, and when applicable, the
receipt of a certificate of occupancy for all of the Remaining Project Components from ttie
Town. The Date of Remaining Project Components Final Completion will not be more than 365
days after the date on which the last Remaining Project Components TCO is rE;ceived.
"Day" or "day", when used without modification, means any day of the week, whether or
not a Business Day.
"Deed Restriction Agreement" means a binding agreement or contract between the Town
and Vail Associates to remove the deed restriction held by Vail Associates on the Site in a timely
manner, which contract or agreement shall be acceptable to Developer in farm and substance,
provided such acceptance shall not be unreasonably withheld.
"Default Notice" shall have the meaning given to it in Section 14.02 of this Agreement.
"Developer" shall have the meaning given to it in the opening paragraph of this
Agreement.
"Developer's Certificate" means the certificate delivered to the Town by the Developer at
Escrow Delivery, which states that all of the representations and warranties of the Developer
made in this Agreement are true and correct as of the Escrow Delivery Date as if made on the
Escrow Delivery Date, and that the Developer has satisfied each of the Escrow Delivery
Conditions set forth in Sections 4.03(u) through 4.03(x) of this Agreement.
"Developer's Costs" shall have the meaning given to it in Section 14.04 of this
Agreement.
"Developer's Proprietary Information" means the following information of Developer,
and its Affiliates and marked as such: (i) know-how and trade secrets; (ii) information
reasonably identified by Developer or its Affiliates from time to time as co~dential; (iii)
personnel information; (iv) information that should be treated as confidential under the
circumstances surrounding its disclosure including sales and marketing information and account
information; and (v) information which could cause competitive harm to Developer or any of it:~
Affiliates relating to other projects of Developer or its Affiliates, and other proprietary
information relative to the operating methods, procedures and policies distinctive to other
projects of Developer or its Affiliates, including without limitation, the contents of the
Developer's operating manuals, and all commercial or fmancial information (including without
limitation, all expenses, calculations and apportionments) relating thereto.
"Development Parcel" means the development area and air-rights outside and above the;
Public Parking Structure Parcel, which shall have been subdivided into separate and distinct:
5
parcels in order to facilitate future conveyance and ownership (each to be identified as a separate
tax parcel), where the Lodging and Conference Center will be constructed.
"DRB" means the Design Review Board of the Town.
"Effective Date" means the date set forth in the opening paragraph of this Agreement.
"Environmental Laws" means all federal, State and local environmental, health and
safety statutes, as may from time to time be in effect, including but not limited to the Resource
Conservation and Recovery Act (as amended by the Hazardous and Solid Waste Amendments of
1984), 42 U.S.C. § 6901, et seq.; the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (as amended by the Superfund Amendments and Reauthorization Act
of 1986), 42 U.S.C. § 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §
1801, et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq.; the Clean Air Act, 42
U.S.C. § 7401, et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300h, et seq.; the Clean Water
Act, 33 U.S.C. § 1251, et seq.; all applicable State counterparts to such federal legislation and
any regulations, guidelines, directives or other interpretations of any such enactment, all as
amended from time to time, or any other applicable State or federal environmental protection law
or regulation.
"Escrow Delivery" means the occurrence of the Parties having met each of the Escrow
Delivery Conditions, and having provided documentation and evidence thereof, which Escrow
Delivery shall occur on the Escrow Delivery Date.
"Escrow Delivery Date" means the date on which Escrow Delivery occurs. The Parties
intend for the Escrow Delivery Date, prior to any extensions, to occur on the last day of the
calendar month that is twenty-four months from the Effective Date; provided, however; that such
date may be extended pursuant to Sections 3.13 or Section 4.05 of this Agreement, or may occur
on such other date to which the Developer and the Town may agree in writing.
"Escrow Delivery Conditions" means the conditions for Escrow Delivery set forth in
Section 4.03 of this Agreement.
"Event of Default" shall have the meaning given,to it in Article XIV of this Agreement.
"Existing Garage" means the current 1,150 space parking structure, owned and operated
by the Town, located at 395 South Frontage Road, Vail, Colorado.
"Final Closing" means the occurrence of the Parties having met the requirements set forth
in Section 4.07 hereof, and having provided documentation and evidence thereof, which Final
Closing shall occur on the Final Closing Date.
"Final Closing Date" means the date on which Final Closing occurs. As of the Effective
Date the Parties intend for the Final Closing Date, prior to any extensions, to occur on February
1, 2010; provided, however, that such date may be extended pursuant to Section 3.13 or Section
4.05 of this Agreement, or may occur on such other date to which the Developer and the Town
may agree in writing.
6
"Finance Plan" means the Developer's plan which shall set forth the proposed fmancing
structure of the Project in amounts sufficient to complete the Site Investigation, develop or cause
the construction of the Public Improvements and Private Improvements and otherwise perform
Developer's obligations under this Agreement, which shall be reviewed and confirmed for
sufficiency by the Finance Plan Consultant. Nothing in the Finance Plan shall adversely affe~~t
the Town's legal interest in the Public Improvements. To the extent the Finance Plan contains
information or documents that are proprietary in nature or represent Developer's Proprietary
Information or other confidential commercial and financial information, it is the intent of the
Parties that such information and documents be deemed confidential and not be available as
public records under the Colorado Open Records Act.
"Finance Plan Consultant" means an independent, third-party professional, who :is
experienced and knowledgeable regarding project development fmance and public fmance, who
shall review and confirm the sufficiency of the Finance Plan and who shall be appointed by
Developer and consented to by the Town, with such consent not to be unreasonably withheld.
"Force Majeure" means any of the following occurrences if beyond the reasonable
control of the Person in question (but specifically excluding causes related to the delayed Party's
fmancial condition unless the delayed Party's financial condition is related to one of the
following reasons)): (i) strike, lock-out or other labor troubles; (ii) governmental restrictions or
limitations, including, without limitation, the requirements, restrictions or limitations of
environmental laws; (iii) failure or shortage of electrical power, materials, gas, water, fuel oil, ar
other utility or service; (iv) riot, war, terrorist act, insurrection or other national or local
emergency; (v) accident, flood, fire or other casualty; (vi) extraordinarily adverse weather
conditions; (vii) any temporary disruption of. the United States or global fmancial markets or
banking systems, due to natural disaster, terrorist act or otherwise, which prevents a Party fronn
accessing such markets or causes a temporary inability to access funds; (viii) other act of God, or
(ix) any other extraordinary cause or event beyond the reasonable control of the Personvn
question.
"Garage LOC" means an irrevocable letter of credit acceptable to the Town, which is
intended to have an initial term of at least one year, issued in favor of the Town by a bank, trust
company or other financial institution, which will have ashort-term rating in the highest short-
term rating categories (without regard to any numerical or other qualifiers thereto) of both
Moody's and S&P; or a long-term rating in one of the two highest long-terns rating categories
(without regard to any numerical or other qualifiers thereto) of either Moody's and S&P and a
long-term rating in one of the three highest long-term rating categories (without regard to anv
numerical or other qualifiers thereto) of both Moody's and S&P, or by such other entity as will
shall be approved in writing by the Town. The Parties acknowledge that during the Planning and
Entitlement Period it may be determined by the Parties that an alternate form of guarantee ma~T
be preferable to the Garage LOC. The Parties hereby agree that such alternative may be used
upon the request of the Developer and approval of the Town Manager, so long as the intent and
rating categories of such alternative are comparable to the terms set forth in this definition, and
are acceptable to the Town.
"Holder" means the owner of the Mortgage.
7
"Improvements" means all Public Improvements and the Private Improvements.
"Information Center" means a new Town information center with approximately 2,000
square feet, to be located next to short term parking in the New Parking Structure, as depicted
and described in the Project Description. The Information Center is a Public Improvement.
"Interim Parking Management Plan" means any plan approved by the Town Council that
provides for excess parking spaces in the event that the required number of Phase II parking
spaces in the Existing Gazage and/or New Parking Structure are- unavailable by December 15,
2011 (as such date may be postponed in accordance with Section 5.01(c) and Section 5.01(d)
hereof).
"Lionshead Redevelopment Master Plan" means the Lionshead Redevelopment Master
Plan, which is the Town's official planning document for guiding the redevelopment of the
Lionshead area, and which is part of the Vail Comprehensive Plan, adopted by the 7['own Council
in 1999.
"Lodging" means, two hotels, one of which will be in the Smith Travel Research
"Luxury" category, and one of which will be in the Smith Travel Research "Upper Upscale"
category, which, collectively will have not less than 240 guest rooms, and in addition, not more
than 130 residential units, and not less than 25 fractional fee units allocated between the two
hotel buildings, all as depicted and described in the Project Description.
"Metropolitan District(s)" shall have the meaning given to it in Section 7.02(a) of this
Agreement.
"Month" or "month", when used without modification, means any consecutive 30 day
period of time.
"Moody's" means Moody's Investors Service, Inc., its successors and assigns, and, if
Moody's Investors Service, Inc. will for any reason no longer perform the functions of a security
rating agency, "Moody's" will be deemed to refer to any other nationally recognized securities
rating agency designated by the Town.
"Mortgage" means any mortgage or deed of trust conveying an interest in the Project for
the purpose of securing a debt or other obligation.
"New Parking Structure" means the new parking structure that will replace the Existing
Garage with approximately 1,450 public parking spaces (which include short-term/local day
skier drop-off parking), plus additional parking as may be required by the Zoning Regulations in
order to support the Project (excepting the Private Parking), as such New Parking Structure is
depicted and described in the Project Description. The Parking Related Infrastructure will be
located in or on the New Parking Structure, and the New Parking Structure, excepting the Private
Parking located therein, is a Public Improvement.
"New Parking Structure TCO" means a certificate or certificates, as applicable, issued by
the Town that permit legal and .beneficial occupancy, operation and use of the New Parking
Structure without interruption for its intended purposes, which certificate or certificates may be
issued with or without qualification so long as any qualification will not prohibit, restrict or
impair such occupancy, operation or use.
"Non-Parking Infrastructure" means the Road Improvements, Conference Center,
Lodging and Retail Development.
"Parking Facilities" shall have the meaning given to it in Section 9.02 of this Agreement.
"Parking Related Infrastructure" means the Transportation Center, Private Parking,
Replacement Public Facilities and Information Center.
"Party" and "Parties" shall have the meaning given to such terms in the opening
paragraph of this Agreement.
"PEC" means the Planning and Environmental Commission of the Town.
"Permitted Exceptions" means the permitted exceptions to title prepared and delivered by
Developer.
"Person" or "person" means a natural person, a trustee, a corporation, a partnership, a
limited liability company and any other form of legal entity.
"Phase I" means the period of time intended by the Parties to last from April 1, 2010 1:0
March 31, 2011, as such date may be extended in accordance with the terms hereof, during
which the first phase of construction of the New Parking Structure shall occur, which include;s
reconfiguration of the Existing Garage.
"Phase II" means the period of time intended by the Parties to last from April 1, 2011 to
March 31, 2012, as such date may be extended in accordance with the terms hereof, during
which the second phase of construction of the New Parking Structure shall occur.
"Phase III" means the period of time intended by the Parties to last from April 1, 2012 to
September 1, 2013, as such date may be extended in accordance with the terms hereof, during
which the third phase of construction of the New Parking Structure shall occur, which shall also
include any fmal fmishing of construction and punch list work items. The Parties intend to have
obtained the New Parking Structure TCO by December 1, 2012, and for the Date of New Parking
Structure Final Completion to be September 1, 2013, or such alternative date to which the Parties
may mutually agree.
"Planning and Entitlement Period" means the period of time that begins on the Effective
Date and ends on the Escrow Delivery Date, during which Developer will engage in Site
Investigation; certain pre-construction activities; certain planning and design activities, including
preparation and obtaining approval of the Project Plan and Conference Center Agreemenl:;
certain entitlement activities, including obtaining required PEC and DRB approvals; and certavn
drafting and fmancing activities, including obtaining approval of the Service Plans and obtaining
confirmation of the sufficiency of the Finance Plan, as such period of time may be extended in
accordance with the terms of this Agreement.
9
"Plans" shall have the meaning given to it in Section 10.03 of this Agreement.
"Private Improvements" means the Lodging, the Private Parking and the Retail
Development.
"Private Parking" means the private parking spaces (in such minimum quantity as
required by the Zoning Regulations) and related areas located in the New Parking Structure, for
which the Parties intend to have ingress, egress, maintenance and control that is separate from
that of the New Parking Structure, as such Private Parking is depicted and described in the
Project Description. The Parties intend for the Private Parking to be located in the New Parking
Structure, but for the Private Parking to be owned by Developer and to be a Private
Improvement.
"Project" means the Public Improvements and the Private Improvements to be
constructed on the Site.
"Project Description" means, collectively, the Proposal (Exhibit C-1), the Supplement
(Exhibit C-2} and the Traffic Patterns and Parking Program (C-3), collectively attached hereto as
Exhibit C.
"Project Plan" means the schematic, architectural internal and external layouts of the
Project, which may include major architectural concepts, defined and architectural uses, massing
and movement of people, but shall not include architectural details including colors, materials or
other similar architectural or design specifics.
"Proposal" means the "LionsHead Parking Structure Redevelopment: The Open
Hospitality Partners &Hillwood Capital [Open ~ Hillwood] Partnership, Phase 2 Submittal,"
dated September 29~', 2006, attached hereto as Exhibit C-1.
"Public Improvements" means the New Parking Structure (except the Private Parking),
the Transportation Center, the Conference Center, the Road Improvements, the Information
Center, the Replacement Public Facilities, and appropriate connections including infrastructure,
superstructure, shared elevators, access, security and other integrated components as may be set
forth in the Shared Facilities Agreement.
"Public Parking Structure Parcel" means the fee interest in the separate and distinct
development area of the Site where the New Parking Structure will be constructed (including the
separate and distinct parcels of the Site where the Transportation Center, Replacement Public
Facilities and Information Center will be located and excluding the separate and distinct parcel of
the Site where the Private Parking will be located).
"Remaining Project Components" means all of the Private Improvements and the Public
Improvements, except the New Parking Structure.
"Remaining Project Components TCO" means a certificate or certificates, .as applicable,
issued by the Town that permit legal and beneficial occupancy, operation and use of each of the
Remaining Project Components without interruption for each of its intended purposes, which
10
certificate or certificates may be issued with or without qualification so long as any qualification
will not prohibit, restrict or impair such occupancy, operation or use.
"Replacement Public Facilities" mean the on-site replacement in the New Parkvng
Structure of approximately 4,400 square feet of certain public-benefit facilities currently located
in the Existing Garage, as depicted and described in the Project Description. The Replacement
Public Facilities are a Public Improvement.
"Retail Development" means the approximately 60,000 square feet of retail space,
including the privately owned, retail oriented pedestrian street envisioned as a public oriented
extension of the Lionshead core area streetscape improvements, as depicted and described in the
Project Description. The Retail Development is a Private Improvement.
"RFP" means the "Request for Proposals: To redevelop existing parking structure in Vasil,
Colorado as a mixed use development providing over 1150 public parking spaces" issued by the
Town on May 10, 2006, for the potential mixed-use redevelopment of the Site.
"RFP Response" shall have the meaning given to it in the Recitals of this Agreement.
"Road Improvements" means a new roundabout, improvements to South Frontage Road
and improvements to East Lionshead Circle, including the area commonly referred to as tb.e
"chute," all as depicted and described in the Project Description. The Road Lmprovements are a
Public Improvement.
"S&P" means Standard and Poor's Ratings Group, a Division of McGraw Hill, Inc., it:s
successors and assigns, and, if Standard and Poor's Ratings Group, a Division of McGraw Hill,
Inc. will for any reason no longer perform the functions of a security rating agency, "S&P" will
be deemed to refer to any other nationally recognized securities rating agency designated by the
Town.
"Service Plans" shall have the meaning given to it in Section 7.02(a) of this Agreement.
"Shared Facilities Agreement" shall have the meaning given to it in Section 2.02(f) of
this Agreement.
"Site" shall have the meaning given to it in the Recitals of this Agreement.
"Site Investigation" means the investigation, pre-construction, planning, design„
entitlement, drafting and fmancing activities work on or related to the Site that is necessary
before Developer begins Commencement of Construction, which includes but is not limited toy
performing surveys, testing and inspections, and related activities.
"Site Map". means the depiction of the Site set forth on Exhibit B hereto.
"State" means the State of Colorado.
11
"Supplement" means the "LionsHead Parking Structure Redevelopment: The Open
Hospitality Partners &Hillwood Capital [Open ~ Hillwood] Partnership, OHP response to Staff
Memo of December 07, 2006," dated January 5, 2007, attached hereto as Exhibit C-2.
"Survey" means the survey for the Site to be provided by Town to Developer within sixty
(60) days of the Effective Date, as further described in Section 3.05 of this Agreement.
"Surveyor" shall have the meaning given to it in Section 3.05 of this Agreement.
"Title Commitment" means a current ALTA owner's title insurance commitment for the
Site issued by the Title Company.
"Title Company" means Land Title Guarantee Company.
"Town" shall have the meaning given to it in the opening paragraph of this .!agreement.
"Town Certificate" means the certificate delivered to Developer by the Town at Escrow
Delivery, which states that all of the representations and warranties of the Town. made in this
Agreement are true and correct as of the Escrow Delivery Date as if made on the Escrow
Delivery Date, and that the Town has satisfied each of the Escrow Delivery Conditions set forth
in Sections 4.03(a) through 4.03(t) of this Agreement.
"Town Code" means, collectively, the Vail, Colorado Town Code and the 'Town's home
rule Charter, as each may be amended from time to time.
"Town Council" means the Vail Town Council, as duly elected, appointed or serving in
accordance with the Town Code.
"Town Manager" shall mean the duly appointed Manager of the Town.
"Traffic Patterns and Parking Program" means the "Traffic Patterns & Parking Program,"
dated July 12, 2007, attached hereto as Exhibit C-3.
"Transportation Center" means a fully integrated transportation center with five ECO
Bus/Town Shuttle Bus bays, located in the New Parking Structure, as depicted and described in
the Project Description. The Transportation Center is a Public Improvement.
".Vail Associates" means Vail Associates, Inc., The Vail Corporation, D/B/A Vail
Associates, Inc., a Colorado corporation or any other related corporate entity.
"Vested Rights Act" means Colorado Revised Statutes Section 24-68-101 et seq., as the
same may be amended from time to time.
"Vested Rights Laws" means, collectively, the Vested Rights Act and/or Section 12-19-1
et seq. of the Town Code, as each may be amended from time to time.
"Year" or "year", when used without modification, means any consecutive 365 day
period of time.
12
"Zoning Regulations" means the Town of Vail Zoning Regulations, at Titles 12, 13 acid
14 of the Town Code and as set forth in the Lionshead Redevelopment Master Plan.
Section 1.03 Other Defmitions. Any other term to which meaning is expressly given in.
another section of this Agreement shall have such meaning.
Section 1.04 Rules of Construction.
(a) Except as specifically provided. herein, any approval, consent, permission,
submittal or authorization contemplated under this Agreement by the Town and/or Developer
shall be given in advance and in writing, and any consent, approval, permission or authorization
shall apply only in the instance given.
(b) The Recitals are made part of this Agreement.
(c) A term defined in this Agreement that includes one or more items, when used,
shall mean all or one or more of those items.
(d) A term defined in this Agreement that means or refers to an agreement, writing or
statute shall mean and refer to that agreement, writing or statute as amended, modified,
substituted for or replaced from time to time, but only if and to the extent that such amendment,
modification, substitution, or replacement is permitted under, and made in accordance with this
Agreement.
(e) Whenever in this Agreement there is a day or time period established for
performance and such day or the expiration of such time period is not a Business Day, then such
time for performance shall be automatically extended to the following Business Day.
(f) The headings of the sections, subsections, paragraphs and subparagraphs hereof
are provided for convenience of reference, and shall not be considered in construing their
contents.
(g) As used herein, all references made (i) in the neuter, masculine or feminine
gender shall be deemed to have been made in all such genders, (ii) in the singular or plural
number shall be deemed to have been made, respectively, in the plural or singular number a:s
well, and (iii) to any sections, subsections, paragraphs or subparagraphs shall be deemed, unless
otherwise expressly indicated, to have been made to such sections, subsections, paragraphs o:r
subparagraphs of this Agreement.
(h) The words "including" and "includes," and words of similar import, shall be;
deemed to be followed by the phrase "without limitation."
Section. 1.05 Exhibits.
EXHIBIT A Site Description
EXHIBIT B Site Map
EXHIBIT C Project Description (Exhibit C is not attached hereto because of its size and is on
13
file at the Office of the Town Manager)
EXHIBIT C-1 Proposal
EXHIBIT C-2 Supplement
EXHIBIT C-3 Traffic Patterns and Parking Program
EXHIBIT D Conference Center Summary
ARTICLE II
PROJECT DESCRIPTION
Section 2.01 Selection and Enga ement. On Mazch 13, 2007, after the conclusion of a
year-long RFP process; the Town Council authorized an exclusive 120-day negotiation period
with Developer for the redevelopment of the Site. This Agreement is the result of such
negotiations, and sets forth the basic terms and conditions of the Project, and the rights and
obligations of the Parties. The Town hereby formally selects and designates Developer as the
developer of the Project on the Site, and engages Developer to develop, plan, construct and
implement the Project, or cause the same to occur, including the construction of specified Public
Improvements and Private Improvements.
Section 2.02 -Description of Proiect.
(a) The Project will. consist of a new parking facility, a fully integrated
transportation center, a conference center, a new roundabout and road improvements, a new
Town information center, replacement of approximately 4,400 squaze feet of certain public-
benefit facilities, two new hotels and approximately 60,000 squaze feet of retail space, including
a retail oriented pedestrian street, all as depicted and described in the Project Description, which
is attached hereto as Exhibit C, and includes the Proposal, the Supplement and the Traffic
Patterns and Parking Program. Any inconsistent depictions or descriptions of the Project that
occur among the Proposal, the Supplement and the Traffic Patterns and Parking Program shall be
resolved in favor of the most recently dated thereof. Any inconsistent depictions or descriptions
of the Project that occur between the text or body of this Agreement and the Project Description
shall be resolved in favor of the text or body of this Agreement. The Project Description is
current as of the Effective Date; however the Parties intend that the Project Description will be
modified, supplemented or amended by the Project Plan, the Conference Center Agreement, the
Shaeed Facilities Agreement and the Approved Development Plan.
(b) The Project will include the Public Improvements and the Private Improvements,
and will be developed in accordance with this Agreement, the Project Description, the Project
Plan, the Conference Center Agreement, the Approved ,Development Plan and the Shared
Facilities Agreement.
(c) On the Final Closing Date, Town will convey certain interests in the Site, and
certain interests in surface, subsurface or airspace development areas of the Site, as described in
Section 2.03 below. After the Final Closing, Developer will employ commercially reasonable
efforts to develop the Project by causing the Improvements to be constructed in accordance with
this Agreement, the Project Description, the Project Plan, the Conference Center Agreement, the
Approved Development Plan and the Shared Facilities Agreement, all in accordance with
14
applicable laws and regulations (including, without limitation, the Town Code and the
Environmental Laws).
(d) Public Improvements. The Public Improvements will be developed, planned acid
constructed by Developer, or the Developer will cause the same to occur. All Public
Improvements will be designed and built subject to the requirements of the Town, and the Town
shall have the right to approve the design and final construction drawings for all Public
Improvements. The Public Improvements may be legally owned and described as separate
parcels, or as a single parcel, in the discretion of the Town or Metropolitan District(s), ~~s
appropriate. The "Public Improvements" will include the following components:
(i) anew parking- structure that will replace the Existing Garage witch
approximately 1,450 public parking spaces (which include short-term/local day skier drop-off
parking), plus additional parking as may be required by the Zoning Regulations in order t:o
support the Project (excepting the Private Parking), as such New Parking Structure is depicted
and described in the Project Description (the "New Parking Structure"); provided, however, that
the Private Parking is not a Public Improvement;
(ii) a fully integrated transportation center with five ECO Bus/Town Shuttle
Bus bays, located in the New Parking Structure, as depicted and described in the Project
Description (the "Transportation Center") (the Town intends to seek approxnnately five million
dollars ($5 million) in Federal funds to be applied to the construction of the Transportation
Center, but should such funds not be available in the time frame needed for construction of th.e
Transportation Center, the Town will consider applying other funds such as revenue from tax
increment fmancing (TIF);
(iii) a conference center with approximately 34,000 total gross square feet oaf
ballroom, breakout, pre-function and "back of house" space, as may be amended and
supplemented pursuant to the Conference Center Agreement (the "Conference Center");
(iv) a new roundabout, improvements to South Frontage Road and
improvements to East Lionshead Circle, including the area commonly referred to as the "chute,"
all as depicted and described in the Project Description (the "Road Improvements"). The Road
Improvements are a Public Improvement;
(v) anew Town information center with approximately 2,000 square feet, to
be located next to short term parking in the New Parking Structure, as depicted and described vi
the Project Description (the "Information Center");
(vi) on-site replacement in the New Parking Structure of approximately 4,40()
square feet of certain public-benefit facilities currently located in the Existing Garage, a:s
depicted and described in the Project Description (the "Replacement Public Facilities").
(e) Private Improvements. The Private Improvements will be developed, planned and
constructed by Developer, or Developer will cause the same to occur. The Private Improvements
will be sited above the New Parking Structure and abutting or adjacent to other Publics
Improvements. The Private Improvements may be legally owned and described as separate;
15
pazcels, or as a single parcel, in Developer's discretion. The "Private Improvements" will
include the following components:
(i) two hotels, one of which will be in the Smith Travel Research "Luxury"
category, and one of which will be in the Smith Travel Reseazch "Upper Upscale" category,
which, collectively will have not less than 240 guest rooms, and in addition, not more than 130
residential units, and not less than 25 fractional fee units allocated between the two hotel
buildings, all as depicted and described in the Project Description (the "Lodging");
(ii) the approximately 60,000 square feet of retail space, including the retail
oriented pedestrian street envisioned as a public oriented extension of the Lionshead core area
streetscape improvements, as depicted and described in the Project Description (the "Retail
Development"); and
(iii) the private parking spaces (in such minimum quantity as required by the
Zoning Regulations) and related areas located in the New Parking Structure, for which the
Parties intend to have ingress, egress, maintenance and control that is separate from that of the
New Parking Structure, as such Private Parking is depicted and described in the Project
Description (the "Private Parking"). The Parties intend for the Private Parking to be located in
the New Parking Structure, but that the Private Pazking will be owned by Developer.
(f) The Parties acknowledge that there may be easements, licenses and cost sharing
among the Public Improvements and Private Improvements, including, among other items,
infrastructure, superstructure, shared facilities, access, security, heating, ventilating, air
conditioning and other integrated components, as will be agreed to in a separate agreement to be
executed by the Parties at Escrow Delivery (the "Shared Facilities Agreement").
Section 2.03 Schedule of Conve ante of Title and Interests in Project. T'he following
subsections set forth the Parties general intentions, as of the Effective Date, regarding
conveyances of property interests relating to the Site. The Parties hereby acknowledge that
certain easement rights and licenses involving, among other items, infrastructure, superstructure,
shared facilities, access, security, heating, ventilating, air conditioning and other integrated
components are not provided for in this Agreement, and will be negotiated by the Parties and
memorialized in the Shared Facilities Agreement.
(a) From the Effective Date forward, the Road Improvements, and the separate and
distinct development areas and parcels upon which the Road Improvements will be constructed,
shall remain in public ownership.
(b) From the Effective Date to the Final Closing Date, Town will continue to own the
Site in fee, and will continue to have possession and the rights and responsibilities of ownership.
(c) At Final Closing, Town will convey its fee interest in the Development Parcel and
the development area of the Site where the Private Parking will be located to Developer.
(d) From the Final Closing Date forward, the fee interest in the Public Parking
Structure Parcel will be owned by the Town, and the fee interest in the development area of the
Site where the Private Parking will be located will be owned by the Developer.
16
(e) From the Final Closing Date to the Date of Project Final ('ompletion, the fee
interest in the Development Parcel will be owned by the Developer (who may convey the interest
in the area of the Development Parcel where the Conference Center is to be constructed to the
Metropolitan District(s) at anytime thereafter).
(f) Immediately following the Date of Project Final Completion, Developer wall
convey any remaining interest it has in the area of the Development Parcel where the Conference
Center has been constructed to the Metropolitan District(s), and the Metropolitan District(s) wall
take title in fee to the Conference Center in accordance with normal and customary practices.
The Metropolitan District(s) will retain title to the Conference Center and the Developer wiill
retain title to the remainder of the Development Parcel.
(g) Following the Date of Project Final Completion, the Parties and any affected
Metropolitan District(s) will cooperate to obtain correction deeds for each of the Improvements,
as necessary.
Section 2.04 Operation and Maintenance of Improvements.
(a) The Parties generally intend that the Developer will operate and maintain trte
Private Improvements, that the Town will operate and maintain all Public Improvements, except
the South Frontage Road (which shall continue to be maintained by CDOT) and the Conference
Center, and the Parties presently expect that the Metropolitan District(s) will operate anal
maintain the Conference Center.
(b) The table below sets forth the ownership and responsibility for operation and
maintenance for each of the Improvements. The Parties intend that the Shared Facilities
Agreement will be consistent with the table:
OPERATION &
IMPROVEMENTS OWNERSHIP MAINTENANCE
South Frontage Road CDOT CDOT
Remainder of Road Improvements Town . Town
Existing Garage and/or New Parking Town Town with regard to completed
Structure, excluding Private Parking, portions open for public parking,
before Date of New Pazking Developer with regard to portions
Structure Final Completion under construction
New Parking Structure, excluding Town Town
Private Parking, following Date of
New Parking Structure Final
Completion
Private Parking Developer Developer
Transit Center Town Town
17
Information Center Town Town
Replacement Facilities Town Town
Conference Center Developer during construction,
Metropolitan District(s) following
construction Metropolitan District(s) and/or
Lodging providers
Retail Development Developer Developer
Lodging Developer ,private interests and/or
homeowners associations Developer, homeowners associations
and/or Lodging providers
Section 2.05 Development Terms. The Lionshead Redevelopment Master Plan will
govern and control with respect to the Approved Uses for the Project and the Site. In connection
with the approval of the Approved Development Plan, the Town will act promptly on the
Approved Development Plan in accordance with the terms of this Agreement. Following the
Final Closing, Developer shall continue to design and develop the Project in accordance with the
Approved Development Plan, subject to compliance with all applicable ordinances,
requirements, rules, regulations, and policies of the Town, including, without limitation,
applicable zoning ordinances (including Titles 12, 13 and 14 of the Town Code), requirements,
rules, regulations, and policies. If either Party wishes to amend the Approved Development
Plan, the Developer and Town Manager shall meet in good faith to discuss such amendment, and
shall work cooperatively toward an amendment that is mutually agreeable to both Parties.
Section 2.06 Vested Property Rights. The Developer and. Town agree that the
Approved Development Plan will constitute the approved "site specific development plan" for
the Site and the Project under the Vested Rights Laws. Pursuant thereto, and to this Agreement,
the Town agrees that Developer and its successors in interest will be entitled to have the right to
undertake and complete development of the Site and Project in accordance with the Approved
Development Plan, as the same may be further amended or supplemented in connection with the
development process by additional development and construction plans, platting or otherwise.
This right to so develop shall constitute a vested property right under the Vested :Rights Laws,
and the Approved Development Plan shall constitute a development agreement within the
meaning of the Vested Rights Act. This vested right is being established in consideration of the
substantial time and investment which has been and will be incurred by Developer and its
Affiliates in planning for and undertaking the Project, and to afford Developer and its Affiliates
and successors certainty of the availability of development rights during the potential phasing of
the Project and the economic cycles and variability in market conditions that Developer and its
Affiliates and successors many encounter during the development of the Project. The following
language is hereby deemed incorporated into the Approved Development Plan (and amendments
and supplements thereto) as well as this Agreement: "Approval of this plan may create a vested
property right pursuant to Colorado Revised Statutes title 24, article 68, as amended." This
vested property right shall vest as of the date the Approved Development Plan is adopted and
shall last until three years following the Date of New Parking Structure Final Completion.
18
ARTICLE III
PLANNING AND ENTITLEMENT PERIOD
Section 3.01 Term.
(a) The Planning and Entitlement Period shall begin on the Effective Date and shall
terminate on the Escrow Delivery Date, unless Developer has terminated this Agreement prior to
such date in its sole discretion pursuant to Section 4.05 or Section 14.06 hereof, or the Plannuig
and Entitlement Period has been extended in accordance with Section 3.1)2 or Section 4.05
hereof.
(b) Upon Escrow Delivery, the Planning and Entitlement Period shall be deemed to
have ended, and the Parties will be in the escrow period until the Final (:losing Date. Tlie
Construction Phase shall begin on the Business Day following the Final Closing Date. Tlie
Parties intend for Final Closing to occur on February 1, 2010.
Section 3.02 Site Investigation, Entitlements, and Design.
(a) The Parties acknowledge that prior to the Construction Phase, Developer requires
a period of time to engage in Site Investigation; certain pre-construction. activities; certain
planning and design activities, including preparation and obtaining approval of the Project Plan
and Conference Center Agreement; certain entitlement activities, including obtaining required
PEC and DRB approvals; and certain drafting and fmancing activities, including obtaining
approval of the Service Plans and obtaining confirmation of the sufficiency of the Finance Plan.
During the Planning and Entitlement Period, Developer shall take such related steps as it
determines necessary to investigate and study all aspects of the Site, to design the Project and to
engage in certain Site Investigation.
(b) During the Planning and Entitlement Period, Developer or its agents, consultants
and contractors may undertake Site Investigation or other activities in, on, under or above the
Site, which Site Investigation or activities may include, but are not limited to:
(i) Surveying and examining the condition of the Site, including, without
limitation, the environmental condition of soils and groundwater, the existence of archeologica~.l
or historical resources on the Site, existing environmental arrangements and laws affecting the
Site, geo-technical surveys, topographical surveys, wetland delineations, tree surveys, ALTA or
other land surveys, Phase I and Phase II environmental studies, water supply studies, historical
and archeological resources studies or wildlife studies;
the Project;
(ii) Completing the schematic design phase and design development phase of
(iii) Completing the Project entitlement process;
(iv) Developing the Service Plans for the Metropolitan District(s);
(v) Examining the financing structure for the Project;
19
(vi) Preparing the Conference Center Agreement, the Project Plan, the Finance
Plan and the Shared Facilities Agreement.
(vii) Obtaining any required final PEC and DRB approvals relating to the
development of the Site and the Project;
(viii) Examining the condition of title to the Site, including obtaining the Title
Commitment to the Site in accordance with Section 3.04 below; and
(ix) Identifying the proposed location and timing for the construction phases of
the Project, which information may be contained in the Approved Development Plan;
(x) Assisting the Town in its obligation to obtain all necessary approvals from
CDOT for the design and construction of South Frontage Road; and
(xi) Examining all other aspects of the Site that relate to Developer's overall
ability to develop the Project.
(c) Developer shall perform any such Site Investigation in a good and workmanlike
manner, free of mechanics liens and claims, in accordance with all applicable laws, rules,
regulations and ordinances of any governmental authority with jurisdiction over the Site.
Developer shall coordinate the performance of any such Site Investigation with the Town to
minimize impacts on the public access and use of the Existing Garage.
Section 3.03 License to Enter and Access. The Town hereby grants Developer, its
agents, consultants and Construction Contractors a license to enter upon and to occupy any
portion of the real property comprising the Site, and the right to enter onto the Site for purposes
of conducting the activities described in Section 3.02 above in order to accomplish the timely
Commencement of Construction, all at no cost to Developer (unless Developer must obtain a
public way permit, in which case Developer shall pay Town's usual and customary fees for such
permit). Developer shall provide Town with reasonable notice prior to entering the Site. Upon
receipt of such notice, Town shall provide notice to any lessees occupying the Site regarding
Developer's entry and activities. Developer hereby agrees not to interfere with the normal
operation of the Existing Garage when conducting the activities described in Section 3.02 above.
Section 3.04 Title Commitment. In connection with Developer's investigations on the
Site during the Planning and Entitlement Period, Town shall provide the Title Commitment for
title insurance on the Site issued by the Title Company for information purposes only, together
with all of the documents listed on Schedule B-2 of such commitment. Town shall work with.
Developer and the Title Company to review such title exceptions in order to determine their
validity, and to determine which title exceptions will need to be removed and the required
actions and timing for such removal. Prior to Escrow Delivery, the Developer shall. prepare and
deliver a list of exceptions to title which Developer determines are acceptable (the "Permitted
Exceptions").
Section 3.05 Survey. Prior to the Escrow Delivery Date, Town shall provide to
Developer, at Developer's expense, an ALTA survey (the "Survey") of the Site setting forth an
accurate legal description of the Site and showing the location of the precise boundaries thereof,
20
together with all structures, utilities and any other improvements on the Site and all easements,
encroachments, rights-of--way and other matters affecting or appurtenant to the Site, whether
recorded, visible or otherwise known to exist. The Survey shall be prepared by a licensed
surveyor (the "Survevor") acceptable to Developer and shall be certified to Developer and Ti11e
Company. The Surveyor shall note on the Survey the acreage of the Site. If the legal description
of the Site as shown on the Survey differs from the legal description set forth in Exhibit A
attached hereto, then such legal description shown on the Survey shall constitute the legal
description of the Site for all purposes under this Agreement and such legal description shall be
deemed substituted for the legal description attached hereto as Exhibit A. The Parties
acknowledge that once the Approved Development Plan is completed, the legal description may
need to be revised in a manner satisfactory to all Parties.
Section 3.06 Lionshead Redevelopment Master Plan Amendment. The Town hers
previously approved the Lionshead Redevelopment Master Plan, and the Site is located within
the "Lionshead Master Plan study area" identif ed in the Lionshead Redevelopment Master Plaun.
The Town and Developer acknowledge that the development of the Project in conformity with
this Agreement requires certain amendments to the Lionshead Redevelopment Master Plan.
Based upon and in conformity with this Agreement and the Approved Development Plan, tl~ie
Town shall prepare an amendment to the Lionshead Redevelopment Master Plan that will
accommodate the Project and the Approved Development Plan prior to the Escrow Delivery
Date. Such amendment, and any subsequent amendments thereto, shall be subject to the
Developer's review prior to adoption.
Section 3.07 Zoning Process and Entitlement Activities. Developer shall work with the
Town to obtain the necessary entitlements for development of the Project prior to Escrow
Delivery and the Town shall cooperate with Developer in this effort. The Town and Developer
agree that the successful development of the Project requires a planning and zoning process that
effectively engages the community and is efficient, cost effective, flexible and responsive to the
needs of the market place. The Town and Developer shall work cooperatively to secure
appropriate zoning and land use approvals for the development of the Project. The Town and
Developer agree to coordinate their efforts with regard to planning and zoning issues concerning;
the Project.
Section 3.08 Project Plan. The Parties intend that on or about March 15, 2008, but no
later than 180 days after the date the Deed Restriction Agreement has been provided to the
Developer and the Interim Parking Management Plan has been approved, Developer shall
present the Project Plan to the Town Council for review and for approval of an application to
proceed with the entitlement process. The Town Council, on behalf of the Town as owner of the;
applicable Public Improvements and in its capacity as co-applicant in the entitlement process.,
shall review the Project Plan. Upon favorable review of the Project Plan, Town Council shalll
authorize the Town Manager to sign an approval for the application to proceed with the Project
entitlement process.
Section 3.09 Town Obligations During Planning and Entitlement Period. During the
Planning and Entitlement Period, the Town shall have the following responsibilities and
obligations, each of which shall be performed in a timely manner, but in any event prior to
Escrow Delivery, and using commercially reasonable efforts:
21
(a) The Town shall execute such licenses, permits, easements, rights of way and other
agreements as Developer determines to be necessary or convenient to provide access by
Developer and/or the Metropolitan District(s), and their respective agents and employees to the
Site for purposes of developing the Site, providing utility service to the Site or to otherwise
facilitate or accommodate development of the Site.
(b) Town shall provide Developer copies of or access to all documents, studies,
reports, survey materials and other materials in the custody of the Town, or actual or constructive
control of the Town that might relate to the condition of the Site or the development of the
Project.
(c) Town shall provide Developer with copies of all documents evidencing
conveyance of the Site to the Town, all lease agreements and other agreements that impact the
Site, any information regazding any security interests in the Site, and information regarding
existing, and previous litigation or claims related to the Site and issues that might lead to
litigation or claims.
(d) The Town shall have approved and executed documents necessary to subdivide
the Site into separate parcels as contemplated in the definition of "Development Pazcel" in
Section 1.02 herein, and shall have approved and executed documents necessary to effectuate the
conveyance of its fee interest in the Development Pazcel and its fee interest in the development
area of the Site where the Private Parking will be located at Final Closing.
(e) Town shall take such actions and execute such documents as may be necessazy to
remove any encumbrances on the Site, including the deed restriction on the Site held by Vail
Associates, that are not .included in the Permitted Exceptions. Town shall take no actions and
enter into no contracts, leases or other agreements that would affect title to or use of the Site
without Developer's prior written consent.
(f) Town shall continue to manage and operate the Site and Existing Garage in
accordance with its normal and customary management policies and practices.
(g) Town shall assist Developer in its effort towazds issuing a contract for fmal
engineering design of the Road Improvements such that the Road Improvements can be
completed and open for use by October 15, 2010 (as such date may be postponed or extended
pursuant to the terms hereof).
(h) Town shall have obtained all necessary approvals from CDOT for the design and
construction of South Frontage Road, including any required environmental approvals and access
permits.
(i) . Town shall comply with its insurance obligations set forth in Article XIII hereof.
(j) Town shall cooperate with Developer in its efforts to investigate the Site.
(k) Town shall fully disclose to Developer any other information available that might
affect development of the Project.
22
(1) The Town Council shall review the Project, Plan, the Conference Center
Agreement, the Service Plan(s), the Shared Facilities Agreement and an employee housvig
agreement as contemplated in Section 3.11.
(m) The Finance Plan Consultant shall have briefed the Town Manager on his or her
review and confirmation of the sufficiency of the Finance Plan.
(n) The Town shall have approved the Interim Parking Management Plan.
(o) The Town shall seek and actively pursue approximately five million dollars (~5
million) in Federal funds to be applied to the construction of the Transportation Center, but
should such funds not be available in the time frame needed for construction of the
Transportation Center, the Town will consider applying other funds such as revenue from tax
increment fmancing (TIF).
(p) Town shall respond to any- other reasonable requests by Developer related t:o
assisting with Developer's investigations. Information the Town considers non-public and
confidential shall only be provided by the Town to Developer under proper protection of
confidentiality.
Section 3.10 Developer Obligations During Planning and Entitlement Period. During
the Planning and Entitlement Period, Developer shall have, and shall use commercially
reasonable efforts to fulfill, the following obligations (provided that the requirement to use
commercially reasonable efforts shall in no way affect Developer's ability to terminate. this
Agreement during the Planning and Entitlement Period in accordance with Section 4.05 or
Section 14.06 hereof):
(a) Developer shall provide copies to the Town of any studies or reports Developer
obtains or creates in the course of its investigations that are not Developer's Proprietary
Information.
(b) Developer shall process all entitlements and other approvals necessary fo:r
development of the Project within the relevant jurisdiction.
(c) Developer shall manage all costs associated with the development of the Project.
(d) Developer shall work towards issuing a contract for final engineering design oi°
the Road Improvements such that the Road Improvements can be completed and open for use by
October 15, 2010 (as such date maybe postponed or extended pursuant to the terms hereof).
(e) Developer shall assist Town in its effort to obtain all necessary approvals from.
CDOT for the design and construction of South Frontage Road, including any ~ required
environmental approvals and access permits.
below.
(f) Developer shall comply with its insurance obligations set forth in Article XIII
23
(g) Developer shall conduct any investigation work on the Site in a good and
workmanlike manner, in accordance with all applicable laws and free of mechanics liens and
claims.
(h) The Developer shall present to the Town Council the Project Plan, the Service
Plans, the Conference Center Agreement, the Shared Facilities Agreement and an employee
housing agreement as contemplated in Section 3.11.
(i) The Developer shall provide the Finance Plan to the Finance Plan Consultant for
his or her review and confirmation of sufficiency.
Section 3.11 Emplovee Housing. Within sixty days of the Effective Date, Developer
and Town shall have negotiated in good faith regarding employee housing, and shall have
reached agreement regarding employee housing on the terms for Developer's compliance with
Title 12 of the Town Code.
Section 3.12 Indemnification. Developer agrees to indemnify and hold harmless the
Town, its officers and agents from any loss, liability, claim, demand, action, suit, judgment,
damage, cost or expense (including without limitation reasonable attorneys' fees) arising from
the Developer's Planning and Entitlement Period activities, including but not limited to any
personal or bodily injury or death to any person, property damage, and mechanic's and
materiahnen's liens arising in connection with Developer's investigations; provided, however,
Developer shall not be responsible for any claims, loss, injury, costs or expenses incurred by the
Town arising out of the interruption or impairment of use or access to the Site during any such
activities. Notwithstanding anything in this Section 3.11 to the contrary, each Party shall comply
with their respective insurance obligations set forth in Article XIII herein.
Section 3.13 Extension of Planning and Entitlement Period. The Planning and
Entitlement Period may be extended if: (i) Developer requires additional time to conduct its
investigations, design or Site Investigation, (ii) Developer reasonably foresees that it will not be
able to meet its obligations set forth in Section 3.10 above prior to the Escrow Delivery Date,
(iii) it is reasonably foreseeable that Town will not be able to meet its obligations set forth in
Section 3.09 above prior to the Escrow Delivery Date, or (iv) CDOT has not provided the
necessary approvals for the design and construction of South Frontage Road prior to the Escrow
Delivery Date, then Developer may provide notice to Town at least 5 Business Days prior to the
scheduled Escrow Delivery Date that Developer wishes to exercise its rights under this section
and extend the Planning and Entitlement Period for a period of 90 days. If, prior to the end of
such 90 day extension period, any of the circumstances above are still unresolved, Developer
may exercise its rights under this section and extend the Planning and Entitlement Period for an
additional period of 90 days.
ARTICLE IV
ESCROW DELIVERY, CONVEYANCE OF SITE AND FINAL CLOSING
Section 4.01 Escrow Delivery' Final Closins.
(a) Subject to satisfaction of the Escrow Delivery Conditions set forth in Section 4.03
below, the Town and Developer agree to close into escrow on the Escrow Delivery Date on the
24
terms and conditions set forth in this Agreement. If the Escrow Delivery Conditions are satisfied
and the Town and Developer close into escrow in accordance with Section 4.06 below, the Town
and the Developer agree that, subject to the satisfaction of the requirements set forth in this
Article, Town will convey its fee interest in the Development Parcel and the development area ~of
the Site where the Private Parking will be located to Developer by special warranty deed on the
Final Closing Date.
(b) Fourteen days prior to the Escrow Delivery Date, the Parties shall generally have
completed all Escrow Delivery Conditions or indicate a reasonable expectation of completing
them by the Escrow Delivery Date.
Section 4.02 Convevance Price.
(a) The "Convevance Price" for the Site, to be paid by Developer to the Town on tree
Escrow Delivery Date, shall be the good and valuable consideration provided to Town by
Developer in accordance with this Agreement, including but not limited to Developer"s
commitment to develop the Project, taking into account Developer's agreement to undertake th.e
obligations set forth in this Agreement. The Parties agree that the Conveyance Price represenrs
the fair market value of the Site:
(b) Each Party agrees to pay its own costs and fees associated with the Escrow
Delivery and the Final Closing, subject to the adjustments to be made on the Final Closing Date
to allocate closing costs and fees, which adjustments shall be set forth in written instructions
from the Parties to the Title Company. The Parties intend that the Developer shall reimburse the
Town its actual outside consultant fees and costs related to the entitlement process in an amount
not to exceed three hundred thousand dollars ($300,000) on the Final Closing Date.
Section 4.03 Escrow Delivery Conditions. The Town and Developer will be obligated
to close into escrow only upon satisfaction or written waiver by the benefited party of the
following Escrow Delivery Conditions on or before the Escrow Delivery Date. Thr,
determination of satisfaction of the Escrow Delivery Conditions in paragraphs (a) through (t)
below shall be made by Developer, in its sole discretion. The determination of satisfaction of thE;
Escrow Delivery Conditions in paragraphs (u) through (x) below shall be made by Town, in its
sole discretion.
(a) The Town's representations and warranties set forth in Section 11.02 hereof are:
true and correct as of the Escrow Delivery Date.
(b) The Town shall have satisfied; to Developer's satisfaction, each of its obligations
set forth in Section 3.09 hereof.
(c) Developer shall have determined that there are no agreements, leases,
encumbrances, entitlement or other issues affecting the Site that would unacceptably impede
development of the Site, including, but not limited to: (i) the deed restriction on the Site held by
Vail Associates, and (ii) the existence of any recorded plat inconsistent with the Project and the
conveyances contemplated in this Agreement.
25
(d) The Deed Restriction Agreement shall have been executed by the Town and Vail
Associates, and a copy thereof shall have been provided to Developer.
(e) The Town shall have completed and obtained all necessary approvals from CDOT
for the design and construction of South Frontage Road, including any required environmental
approvals and access permits, and the Town has approved a contract for final engineering design
of the Road Improvements such that the Road Improvements can be completed and open for use
by October 15, 2010 (as such date may be postponed or extended pursuant to the terms hereof).
(f) The Town Council shall have authorized the formation of the Metropolitan
District(s) prior to the election at which such formation appears on the ballot.
(g) The Service Plans for the Metropolitan District(s) shall have been approved by the
Town.
(h) The Developer shall have concluded its Planning and Entitlement Period activities
hereunder and has not terminated this Agreement.
(i) The Town shall have caused the Lionshead Redevelopment Master Plan to be
amended to accommodate the Project and the Approved Development Plan.
(j) The Town shall have approved re-zoning of the Site, if necessary, in a manner
consistent with, and to accommodate, the Project.
(k) The Town, PEC and/or DRB shall have provided all necessary approvals for the
Project, including approval of the Approved Development Plan or approval of the Approved
Development Plan with condirions acceptable to Developer, and land use and regulatory
entitlements have been obtained consistent with the Approved Development Plan.
(1) The Developer shall have presented, and the Town Council shall have approved,
the Project Plan, the Shared Facilities Agreement and an employee housing agreement as
contemplated in Section 3.11.
(m) The Finance Plan Consultant shall have met with the Town Manager and reported
on his or her review and confirmation of the sufficiency of the Finance Plan.
(n) The Conference Center Agreement shall have been executed and delivered.
(o) Developer shall have determined that no changes in zoning or other land use and
building provisions directly or indirectly affecting the Site (including, without limitation, any
local or State-wide moratorium or other restriction on construction or issuance of water or sewer
taps) have occurred or are pending that would materially diminish Developer's ability to timely
develop the Site in accordance with the Approved Development Plan.
(p) The Town shall have provided assurance to the Developer that adequate water,
wastewater, sewer, and other utilities provided by or through the Town will be available for
construction and opening of each of the Public Improvements and Private Improvements.
26
(q) Developer shall have determined, through its Planning and Entitlement Period
activities and investigations, that no condition of any portion of the Site is unsatisfactory to
Developer.
(r) The Developer shall have identified no circumstances during the Planning and
Entitlement Period relating to the timing, potential yield or infrastructure costs for the Project
that are so materially different from its understanding in preparing the Proposal and Supplement
that they would result in significantly lesser returns to the Developer than were anticipated in title
Proposal and Supplement.
(s) The Town shall have approved the Interim Parking Management Plan.
(t) Certificates evidencing the Town insurance coverages required under Article XI][I
of this Agreement shall have been reviewed by Developer.
(u) Developer's representations and warranties set forth in Section 11.01 hereof are
true and correct as of the Escrow Delivery Date.
(v) Developer shall have satisfied, to Town's satisfaction, each of its obligations sett
forth in Section 3.10 hereof.
(w) Developer shall have covenanted to use the Site in accordance with the Approved
Uses and in a manner consistent with this Agreement, the Approved Development Plan and an;y
entitlements obtained for the Site.
(x) Certificates evidencing the Developer's insurance coverages required , under
Article XIII of this Agreement shall have been reviewed by Town.
Section 4.04 Certificates at Escrow Delivery.
(a) The Town shall deliver to Developer on the Escrow Delivery Date a certificate
stating that all of the representations and warranties of the Town made in this Agreement are true
and correct as of the Escrow Delivery Date as if made on the Escrow Delivery Date, and that the;
Town has satisfied each of the Escrow Delivery Conditions set forth in Sections 5.03(a) through
5.03(t) above (the "Town Certificate"). If the Town fails to deliver the Town Certificate or if the;
Town Certificate contains any exceptions or other limitations to any representation or warranty
of the Town made in this Agreement, Developer shall be entitled to terminate this Agreement
pursuant to Section 14.06 hereof.
(b) The Developer shall deliver to Town on the Escrow Delivery Date a certificate:
stating that all of the representations and warranties of the Developer made in this Agreement are;
true and correct as of the Escrow Delivery Date as if made on the Escrow Delivery Date, and that.
the Developer has satisfied each of the Escrow Delivery Conditions set forth in Sections 5.03(u)
through 5.03(x) above (the "Developer Certificate"). If the Developer fails to deliver the
Developer Certificate or if the Developer Certificate contains any exceptions or other limitations
to any representation or warranty of the Developer made in this Agreement, the Town shall be
entitled to terminate this Agreement pursuant to Section 14.05 hereof.
27
Section 4.05 Parties Option to Extend Escrow Delivery or to Terminate. If the Escrow
Delivery Conditions are not satisfied on or before the Escrow Delivery Date, then any Party
having satisfied its Escrow Delivery Conditions may, at its option, either terminate this
Agreement in accordance with Sections 14.05 or 14.06, as applicable, or extend the Escrow
Delivery Date for sixty (60) days by providing written notice thereof to the other Party.
Section 4.06 Escrow Delivery.
(a) If the Escrow Delivery Conditions are satisfied, executed copies of the Town
Certificate and the Developer Certificate have been delivered, and if no event of default has then
occurred or is continuing, the Parties intend for the Escrow Delivery to take place on the Escrow
Delivery Date, at the offices of the Title Company or another location to be mutually agreed
upon by the Parties. At the Escrow Delivery, the Parties and the Title Company shall deliver
into escrow the following documents:
(i) The Town shall deliver a special warranty deed executed and
acknowledged as required by law, conveying to Developer title of Town's fee interest in the
Development Parcel and the development area of the Site where the Private Parking will be
located, subject only to Permitted Exceptions. Prior to the Final Closing Date, the Developer
shall have the right to request that the Town replace such special warranty deed with one or more
deeds to one or more Affiliates, or to an accommodator or intermediary for purposes of carrying
out an Internal Revenue Code Section 1031 exchange;
(ii) The Parties shall execute an escrow agreement with the Title Company, in
a form mutually agreeable to the Parties, that sets forth the Title Company's obligations during
the period of escrow and at the Final Closing; and
(iii) The Title Company shall deliver the Title Commitment.
Section 4.07 Final Closing.
(a) The Town and Developer will be obligated to close hereunder only upon
satisfaction or written waiver by the benefited Party of the following on or before the Final
Closing Date:
(i) The Town shall have delivered to Developer on the Final Closing Date a
certificate, in a from acceptable to Developer, stating that all of the representations and
warranties of the Town made in this Agreement are true and correct as of the Final Closing Date
as if made on the Final Closing Date; and
(ii) The Developer shall deliver to Town on the Final Closing Date a
certificate, in a from acceptable to Town, stating that all of the representations and warranties of
the Developer made in this Agreement are true and correct as of the Final Closing Date as if
made on the Final Closing Date.
(b) On the Final Closing Date, the Parties shall jointly notify the Title Company in
accordance with the procedures set forth in the Escrow Agreement and the Title Company shall
28
proceed to record the special warranty deeds or any replacement deeds submitted into escrow
and take such other actions as are required in the Escrow Agreement.
(c) If the Escrow Delivery Conditions are satisfied, executed copies of the Tov~m
Certificate and the Developer Certificate have been delivered, the obligations of this Section 4.07
have been satisfied, and if no event of default has then occurred or is continuing, Developer shall
deliver on the Final Closing Date to Town the costs contemplated in Section 4.02(b) hereof fey
wire transfer or other means acceptable to the Title Company and the Town.
Section 4.08 Title. Prior to the Escrow Delivery Date, Town shall have provided t:o
Developer the Title Commitment, together with copies of all documents referred to therein and
shall have delivered a current certificate of taxes and assessments due for the Site issued by the
treasurer or assessor of the County. The Title Commitment will commit the Title Company to
issue its standard Owners Title Policies subject only to the Permitted Exceptions, and together
with the endorsements also listed on any .exhibit thereon. Upon the Final Closing Date, the Title
Company shall issue the Owners Title Policies (the Town will pay the premium therefor) to
Developer. The Parties acknowledge that, if the Site is to be deeded to separate entities it maybe
necessary for the Title Company to issue separate title insurance commitments and separate
policies for each entity..
ARTICLE V
CONSTRUCTION
Section 5.01 Generally.
(a) The "Construction Phase" shall begin on the Business Day following the Final
Closing Date. The Construction Phase shall end on the Date of Project Final Completion.
Construction of the Project, and the contemplated uses and occupancies thereof, will comply
with all applicable federal, State and Town laws, rules and regulations, including, but not limiteci
to, building, zoning, and other applicable land use codes, subject to modifications approved by
the Town pursuant to the planning, subdivision, zoning, environmental and other developmental
ordinances and regulations.
(b) It is the intent of the Parties that Developer shall cause to be performed the
construction of the Project. Notwithstanding the foregoing, the Metropolitan District(s) may
perform any of the obligations of the Developer under this Agreement with respect to the Public;
Improvements. Developer shall enter into Construction Contracts with each of the Construction
Contractors; provided, however, that the Metropolitan District(s) may enter into Construction
Contracts for any Public Improvements, in lieu of the Developer. The form of Constructior.~
Contracts for each of the Public Improvements shall be approved by the Town Manager. The;.
Construction Contract for each Public Improvement shall name the Town or Metropolitan
District(s) (if the Metropolitan District(s) have not directly entered into such Construction
Contracts), as appropriate, as a third party beneficiary thereunder. The Construction Contract for
the New Parking Structure shall contain a provision requiring the Construction Contractor, the
Town and the Developer (or Metropolitan District(s), as applicable) to meet monthly to discuss
the progress of construction on the New Parking Structure.
29
(c) The Parties acknowledge that all target construction commencement and
completion dates set forth in Sections 5.02(a) and 5.03(a) below are dependent upon the executed
Deed Restriction Agreement being delivered to the Developer prior to January 1, 2008, and the
Interim Parking Management Plan being approved by the Town Council prior to January 1,
2008. If the executed Deed Restriction Agreement is delivered to the Developer, or the Interim
Parking Management Plan is approved on or after January 1, 2008, each target. construction
commencement and completion date set forth in both Section 5.02(a) and Section 5.03(a) below
shall be extended by a full year. Such extension shall be in addition to any other postponement
or extensions permitted by this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, Developer, after
Final Closing and at its sole option and discretion, may postpone Commencement of
Construction (i) for a period not to exceed two years beyond the intended target dates set forth
below in Section 5.02(a) relating to Commencement of Construction for Phase I, and (ii) for each
of the Non-Pazking Infrastructure (as defined below), for a period not to exceed four years
beyond each of the intended target dates set forth below in Section 5.03(a) relating to
Commencement of Construction for any of the Non-Parking Infrastructure.
(e) If Commencement of Construction for Phase I is postponed in accordance with
Section S.O1(c) or Section S.OI(d)(i) above, such postponement shall automatically extend all
other target construction commencement and completion dates set forth in Section .5.02(a) below
by the amount of time of such postponement, and if Developer elects to postpone
Commencement of Construction for any of the Non-Parking Infrastructure in accordance with
Section S.O1(c) or Section S.O1(d)(ii) above, such postponement shall automatically extend all
subsequent other target construction commencement and completion dates set forth in Section
5.03(a) below by the amount of time of such postponement.
Section 5.02 Construction of the New Parking Structure and Parking Related
Infrastructure.
(a) The New Parking Structure will be constructed in three (3) phases, so as to
minimize impact on peak, winter season ski-traffic. The Transportation Center, Private Parking
Replacement Public Facilities and Information Center (the "Pazking Related Infrastructure") will
be constructed concurrently with the New Parking Structure.
(i) The Parties intend for Phase I of construction of the 1Vew Parking
Structure, which includes reconfiguration of the Existing Garage, to begin on April 1, 2010 and
to last until March 31, 2011.
(ii) The Parties intend for the Phase II of construction of the New Parking
Structure to begin on April 1, 2011 and to last until March 31, 2012.
(iii) The Parties intend for the Phase III of construction of the New Parking
Structure to begin on April 1, 2012 and to have reached the Date of New Parking Structure Final
Completion by September 1, 2013. The Parties intend to have obtained the New Parking
Structure TCO and to be open to the public for use by December 1, 2012 and for any final
finishing construction and punch list work items to be completed by September 1, 2013 unless
30
Commencement of Construction on Phase I has
Section 5.01(d) hereof, in which case such
postponement.
been postponed pursuant to Section 5.01(c) or
date shall be extended by such period of
(iv) The Parties intend for construction on the Parking Related Infrastructure to
be constructed concurrently with the New Parking Structure, and to have obtained the Remaining
Project Components TCO for each of the Transportation Center, Private Parking, Replacement
Public Facilities and Information Center by December 1, 2012.
(b) During the period lasting from December 15, 2010 to March 31, 2011 of Phase I,
there will be at least 1,090 parking spaces on the Site open and available to the public. During
the period lasting from December 15, 2011 to the Date of New Parking Structure Final
Completion, there will be at least 1.,100 parking spaces on the Site open and available to tt~e
public. The Parties intend to minimize impact on peak, winter season ski-traffic between
December 15 and April 1 of any year, and so long as the parking spaces. contemplated in this
Section 5.02(b) are available, Developer may cause construction to continue on the Existing
Garage and New Parking Structure using commercially reasonable efforts to minimize such .
construction impact. The dates in this Section 5.02(b) may be postponed for a period of time in
accordance with. Section 5.01(c) and Section 5.01(d) hereof.
(c) Should Developer or Construction Contractor fail to meet any .of the target New
Parking Structure or Parking Related Infrastructure construction dates, Developer shall use a:ll
commercially reasonable efforts to cause construction to continue on the New Parking Structure
and the Parking Related Infrastructure, and shall report to the Town monthly on such progress
until Developer or Construction Contractor begins again to meet the target New Parking
Structure and Parking Related Infrastructure construction dates.
(d) Developer shall diligently pursue steps, or cause its Construction Contractor to
diligently pursue steps, to meet the target construction dates set forth in Sections 5.02(a) and
5.02(b) above, and shall use all commercially reasonable efforts to ensure that the New Parkin;;
Structure will reach the Date of New Parking Structure Final Completion by September 1, 2013.
If, despite these efforts, Developer or Construction Contractor encounters problems beyond their
commercially reasonable control such that Developer reasonably believes that the New Parkint;
Structure will not reach the Date of New Parking Structure Final Completion by September 1,
2013, Developer. shall provide notice to Town of same at least 30 days prior to September 1,
2013. Such notice shall set forth Developer's revised intended Date of New Parking Structuef;
Final Completion, which shall not be later than September 1, 2014 (unless C',ommencement o:f
Construction was postponed in accordance with Section 5.01(c) and Section 5.01(d) hereof iri
which case such date shall be extended by such period of postponement). T;he Developer will
not be obligated to make any payment for said extension, and Developer will not be considered
in default hereunder for exercising its rights to such extension. Developer shall continue to use;
all commercially reasonable efforts, including, but not limited to, the imposition of are
accelerated schedule, to ensure that the New Parking Structure will be complete by the revised'.
Date of New Parking Structure Final Completion.
31
(e) If at anytime Developer causes Commencement of Construction of Phase I to
occur, Developer is then obligated to cause the New Pazking Structure to reach the Date of New
Parking Structure Final Completion, pursuant to the terms of this Agreement.
(f) If the Construction Contractor for the New Pazking Structure provides written
notice to the either of the Parties that such Construction Contractor has not been paid pursuant, to
the terms of the Construction Contract, Developer, upon notice thereof, shall have ten (10)
Business Days to cause such Construction Contractor or another Construction Contractor to
continue construction on the New Parking Structure. If Developer fails to cause construction on
the New Pazking Structure to continue, Town shall have twenty (20) Business Days to cause
such Construction Contractor or another Construction Contractor to continue construction on the
New Parking Structure, and Town shall be entitled to draw on the Gazage LOC in accordance
with Section 8.03 hereof. The provisions of this Section 5.02(f) shall be included in the.
Construction Contract for the New Parking Structure.
(g) If the schedule for the construction of the New Parking Structure is delayed for
reasons related to decisions of the Developer within its control, the Developer shall pay to the
Town two hundred fifty thousand dollars ($250,000) for each year of delay, up to a maximum
amount of two yeazs (five hundred thousand dollars ($500,000) maximum payment) to assist the
Town in making repairs and performing maintenance on the Existing Garage.
(h) Developer shall use commercially reasonable efforts to cause the Construction
Contract for the New Pazking Structure to contain a provision whereby, if the Construction
Contractor fails to complete either of Phase II or Phase III of construction of the New Parking
Structure in accordance with the schedule set forth in this Agreement, Developer and Town shall
each be entitled to fifty percent of any liquidated damages called for by the Construction
Contract for the New Parking Structure.
Section 5.03 Construction ofNon-Parking Infrastructure.
(a) The Non-Parking Infrastructure may be constructed 'prior to or simultaneously
with the construction of the New Pazking Structure and/or following the Date of New Parking
Structure Final Completion, all in accordance with the target dates set forth in this Section 5.03.
The Parties hereby acknowledge that the construction deadlines for the Non-Parking
Infrastructure may be extended or accelerated, depending on the pace of construction of the New
Parking Structure, CDOT approvals and other foreseeable and unforeseeable circumstances.
(i) Construction on the Non-Parking Infrastructure is scheduled to occur from
and after the Final Closing Date through the Date of Remaining Project Components Final
Completion.
(ii) The Parties intend for the construction of the Road Improvements to begin
on April 1, 2010, for the South Frontage Road to be completed by November 1, 2010 and for all
remaining Road Improvements to be competed and open to the public for use by December 1,
2013.
(iii) Construction of one Lodging hotel is scheduled to begin in Apri12012 and
be open to the public for use by December 1, 2013.
32
(iv) Construction of one Lodging hotel is scheduled to begin in Apri12013 and
be open to the public for use by December 1, 2014.
(v) Construction of the Conference Center and Retail Development is
scheduled to begin in March 2013 and to be completed and open to the public ,for use by
December 1, 2014.
(vi) The Parties expect to obtain the last Remaining Project Components TC~O
on or.about December 2014, at which point the Project will be substantially complete.
(b) The Parties hereby acknowledge that construction of the New Parking Structure,
the Parking Related Infrastructure and the Non-Parking Infrastructure will be an integrated
process and that the Parking Related Infrastructure and Non-Parking Infrastructure may share
infrastructure, superstructure, utilities and other shared facilities with the New Parking Structure.
The Parties acknowledge that the target construction dates set forth in Section 5.03(a) above are
dependant, in part, on the pace of construction of the New Parking Structure, and that the target
construction dates of the Non-Parking Infrastructure are expected to be postponed; extended c-r
accelerated, as circumstance permit or require, in accordance with the terms hereof.
(c) Should Developer or Construction Contractor fail to .meet any of the target
construction dates of the Non-Parking Infrastructure, Developer shall use all commercially
reasonable efforts to cause construction of the Non-Parking Infrastructure to continue, and shall
report to the Town monthly on such progress until Developer or Construction Contractor begins
again to meet the target construction dates of the Non-Parking Infrastructure.
(d) In addition to its right to postpone commencement of construction set forth vn
Section 5.01(c) and Section 5.01(d) above, the Developer shall have the right to extend the target
construction completion dates for the Conference Center for a period of one year if Developer or
Construction Contractor encounters problems beyond their commercially reasonable control vi
meeting the target construction completion dates for the Conference Center set forth in Section
5.03(a) above, are diligently pursuing steps to meet the target construction dates for the
Conference Center set forth in Section 5.03(a) above, and have provided written notice to Tow~i
of such extension at least thirty (30) days prior to the applicable target completion date that i;~
intended to be extended. The Developer will not be obligated to make any payment for saki
extension, and Developer will not be considered in default hereunder for exercising its rights to
such extension.
(e) In addition to its right to postpone commencement of construction set forth ire
Section S.O1(c) and Section 5.01(d) above, the Developer shall have the right to extend the target
construction completion dates for each Lodging hotel and the Retail Development for a period oiF
up to two years if Developer or Construction Contractor encounters problems beyond they
commercially reasonable control in meeting the target construction completion dates set forth in
Section 5.03(a) above, are diligently pursuing steps to meet the target construction dates set forth.
in Section 5.03(a) above, and have provided written notice to Town of such extension at least:
thirty (30) days prior to the applicable target date that is intended to be extended. The Developer
will not be obligated to make any payment for said extension, and Developer will not be
considered in default hereunder for exercising its rights to such extension.
33
(f) Notwithstanding anything in the Agreement to the contrary, 'if construction
activities on the Non-Parking Infrastructure ceases for more than 45 consecutive days, or if the
Project fails to reach Date of Project Final Completion by December 1, 2014, as such date may
be postponed or extended in accordance with the terms hereof, Town shall notify Developer that
Town plans to exercise its rights pursuant to Article XIV hereunder. If construction activities on
the Non-Parking Infrastructure have not resumed within thirty (30) days of receipt of such
notice, Developer shall be in default hereunder and Town shall be entitled to exercise its rights
pursuant to Article XIV hereunder.
Section 5.04 No Expense to Town. In no event shall the Town be responsible for any
cost or expense related to demolition or to the construction, infrastructure improvement,
installation or financing of the Project, unless such demolition or infrastructure improvement is
necessitated by a specific independent request or requirement of the Town, and then only to the
extent such infrastructure directly benefits the Town.
ARTICLE VI
CONFERENCE CENTER
Section 6.01 General.
(a) As described and depicted in the Project Description, Exhibit C, and the
Conference Center Summary attached hereto as Exhibit D, Developer submitted plans for the
Conference Center. It is the intent of the Parties that, given the scope and the program of the
Conference Center, Developer's cost of construction of the Conference Center, as described and
depicted in the Project Description, shall not exceed $14 million in 2007 dollars. Developer has
committed to present to the Town Council a revised Conference Center proposal within 120 days
of the Effective Date, which the Town Council may approve and adopt at such time. Any
portion of such proposal so approved and adopted by the Town Council shall be incorporated
into the terms of the Conference Center Agreement.
(b) If the Town Council adopts the Conference Center proposal, or any portion
thereof, and the Conference Center proposal, or any portion thereof, forecasts that the cost of
construction of the Conference Center, as revised, will exceed $14 million in 2007 dollars as
adjusted by the annual rate of inflation (as measured by the Producer Price Index for construction
materials and components published by the U.S. Department of Labor, Bureau of Labor
Statistics), the Town hereby agrees to cover any cost increase beyond such amount.
(c) If the Town Council adopts the Conference Center proposal, or any portion
thereof, such terms shall supersede the terms of this Agreement, including the exhibit attached
hereto, as this Agreement relates to the Conference Center.
(d) If the Town Council does not approve the Conference Center proposal, Developer
shall cause the Conference Center that is described and depicted in the Project Description to be
developed and constructed pursuant to the terms of this Agreement.
34
Section 6.02 Ownership and Operation.
(a) Immediately following the Date of Project Final Completion, Developer will
convey, pursuant to Section 2.03(f), any interest it has remaining in the Conference Center (or
the azea of the Development Parcel where the Conference Center has been constructed) to tY~e
Metropolitan District(s). The Parties presently expect that the Metropolitan. District(s) will t-e
responsible for the costs of maintaining and operating the Conference Center, and that the debts
and obligations of the Conference Center, including any operating or maintenance costs, will not
be the responsibility of the Town and will not be considered debts or obligations of the Town.
(b) Prior to the Escrow Delivery Date and following the date that the Conference
Center proposal, or any portion thereof, is approved by the Town Council, if applicable, the
Parties (and any Metropolitan District(s), if applicable) will enter into an agreement that will scat
forth (i) the rules, regulations, processes and methods governing the operations, ongoing capitiil
improvements, management and budgets and deficits of the Conference Center, and (ii) any
revised, updated or amended schematic, architectural internal and external layouts of the
Conference Center, which may include major architectural concepts, defined and azchitectural
uses, massing and movement of people (but will not include azchitectural details including
colors, comers, materials or other similar architectural or design specifics) (the "Conference
Center Agreement"). The Conference Center Agreement will incorporate any terms of the
Conference Center proposal that are approved and adopted by the Town, and will serve to amend
and supplement this Article VI in its entirety.
(c) Following the Date of Project Final Completion, after Developer has conveyed'.,
pursuant to Section 2.03(f), any remaining interest it has in the Conference Center (or the area of
the Development Parcel where the Conference Center has been constructed) to the Metropolitan
District(s), the Metropolitan District(s) shall manage and operate the Conference Center, in a
good and workmanlike manner in accordance with commercially reasonable standards ni
accordance with this Article VI of this Agreement, and the Conference Center Agreement, and
consistent with the following comparable conference centers in first class resorts: Banff Centre,
Monterey Conference Center, Snowmass Conference Center, Telluride Conference Center,
Keystone Conference Center & Whistler Conference Center. The Metropolitan District(s) shall
provide for any and all operation, maintenance, general upkeep, management, security,
insurance, housekeeping or any other services with respect to the Conference Center, in a
commercially reasonable manner.
(d) Developer shall bear no additional costs for the Conference Center, other than the;
costs necessary to develop the Conference Center to the Date of Project Final Completion..
Following the Date of Project Final Completion, after Developer has conveyed, pursuant to~
Section 2.03(f), any remaining interest it has in the Conference Center (or the azea of the
Development Parcel where the Conference Center has been constructed) to the Metropolitan.
District(s), Developer shall have no interest in, or responsibility or liability for the Conference
Center. It is the intent of the Parties that a Metropolitan District, as described in Section 7.02 of
this Agreement, will be responsible for the maintenance of and capital improvements for the
Conference Center.
35
(e) The Metropolitan District(s) will submit to an annual inspection of the
Conference Center, to be arranged and paid for by Developer, whereby Developer or any
consultant of Developer's choosing may inspect the Conference Center in order to ensure the
general upkeep and maintenance thereof.
Section 6.03 Conference Center Board. The Parties intend for the Conference Center to
be managed and operated by anon-profit conference center entity, governed by a board of
directors (the "Conference Center Board"). It is the intent of the Parties that the Conference
Center Board members shall be appointed by the Town Council, and shall initially be comprised
of five persons, two of whom shall be affiliated with Developer. The initial. term of the
Conference Center Board members shall be a term of three years each. The Parties intend that
the Conference Center Board will be responsible for, among other items: (i) anticipated
Conference Center bookings; (ii) marketing for the Conference Center; and (iii) Conference
Center budgeting.
Section 6.04 Conference Center Services. The Parties intend that the certain
Conference Center services will be provided on a contract basis by the operator of either of the
Lodging hotels, to be determined by the Developer and the Metropolitan District(s) at a later
date. Such operator shall provide catering, housekeeping, janitorial and other operation and
maintenance services as the Parties may agree to at a later date.
ARTICLE VII
FINANCING
Section 7.01 General.
(a) As set forth in this Agreement, it is the intent of the Parties that the Developer
primarily finance, or cause to be financed, the Project. The Town agrees to work cooperatively
with Developer in its efforts to obtain entitlements and financing, and the Town further agrees
not to cause unnecessary delay in Developer's entitlement or financing efforts.
(b) Prior to the Escrow Delivery Date, Developer shall present the Finance Plan to the
Finance Plan Consultant, and the Finance Plan Consultant shall have met with the Town
Manager to report on his or her review of the sufficiency of the Finance Plan.
Section 7.02 Metropolitan District(s).
(a) Developer and Town acknowledge that one or more metropolitan districts (the
"Metropolitan District(s)") will need to be established for the purpose of financing, constructing
and maintaining the Public Improvements for the Site. Town shall not be liable for any costs
relating to the establishment or maintenance of any Metropolitan District(s). Developer shall
work with the Town to establish the Metropolitan District(s) in accordance with the requirements
of Title 32, Article I of the Colorado Revised Statutes and the requirements of the Town.
Developer may work with any consultants it deems necessary in establishing and maintaining the
Metropolitan District(s). As required by law, the Metropolitan District(s) shall undertake
activities in conformity with one or more service plans (the "Service Plans"), to be approved by
the Town Council prior to Escrow Delivery. The Service Plans shall contain, among other
matters, limitations on the amount and maturities of general obligation bonds and other
36
obligations to be issued by the Metropolitan District(s), as well as the amount of ad valorem
property taxation to be levied and collected by the Metropolitan District(s). It is the intent of the
Parties that there shall be no mill levy cap for capital cost or expenditures and that there shall be
no mill levy cap for operation and maintenance costs, each of which shall be set forth in the
Service Plans.
(b) The Town agrees not to sell any of the Site that is included within the boundarif~s
of the Metropolitan District(s) to an individual (natural person) and not to permit any personal
property owned by an individual (natural person) to be placed, located or remain on any such
portion of the Site to the extent that such actions would permit any individual to become am
eligible elector of the Metropolitan District(s).
(c) Governance of the Metropolitan District(s) will be conducted by representatives
elected by the eligible electors of each such Metropolitan District. The Parties intend that the
initial board of directors of each Metropolitan District shall be nominated by Developer,
provided however, that each such director nominated by Developer shall provide his or hear
resignation letter to the Town simultaneously with his or her appointment to the board c,f
directors, which resignation letter shall provide that it is effective only upon the termination of
this Agreement. The Town shall hold such resignation letters in trust and submit them to th.e
Metropolitan District(s), as appropriate, if and only if this Agreement is terminated early
pursuant to the terms hereof.
(d) The Town and Developer acknowledge that it is their mutual expectation that,
during the term of this Agreement, the Metropolitan District which is designated as the control
district (the "Control District") will enter into an agreement with Developer to provide for
management by Developer of construction activities of such district.
(e) The Town shall cooperate with Developer and the Metropolitan District(s) in the
formation of the Metropolitan District(s) and in the inclusion of property into the appropriate
Metropolitan District(s).
Section 7.03 Supplemental Financing. It is the intent of the Parties that supplemental
financing be obtained to help finance the cost and operation of the Improvements, includin;;
facility fees, a lodgers' public improvement fee, home owner association dues or other fees.
Section 7.04 Holder Not Obligated to Construct. Notwithstanding the provisions of this
Agreement, a Holder (including a Holder or other person or entity who obtains title to all or a
part of the Project as a result of foreclosure proceedings, or deed in lieu thereof, and including;
any other party who thereafter obtains title to all or any part of the Project from or through the
Holder or other person or entity) will not be obligated by this Agreement to construct or
complete the Improvements, or any of them, or to guarantee the construction or completion of
the Improvements. A Holder and any other persons specified above and their successors ui
interest may, at their option, construct the Improvements required .under this Agreement in
accordance with Section 7.06.
Section 7.05 Copy of Notice of Default to Holder. If the Town delivers to Developer a
demand or notice of any claimed Event of Default by Developer under this Agreement, the Towri
37
will at the same time transmit a copy of the demand or notice to each Holder at the last address
of the Holder shown in the Town's records: All notices under this Section 7.05 will be given in
accordance with the provision of Section 16.03.
Section 7.06 Holder's Option to Cure Defaults. Any' Holder will have tY~e right, at its
option, to cure or remedy or to commence to cure or remedy, any claimed default (to the extent
that it relates to the part of the Project covered by its Mortgage) within thirty (30) days after the
period for cure set forth in Section 14.02 after receipt of the notice required by Section 7.05 (or
so long as cure has been commenced within such period, for so long as the Holder is diligently
and continuously prosecuting such cure), and to add the cost thereof to the indebtedness secured
by the Mortgage, provided, however that the Holder undertakes the cure or remedy in accordance
with the terms and provisions of this Section 7.06. Nothing contained in this Agreement will be
deemed to require, permit or authorize a Holder to undertake or continue the construction of the
Improvements, except to the extent the Holder reasonably deems the same necessary to conserve
or protect. the Improvements or construction already made, without first having expressly
assumed Developer's obligations with respect to the portion of the .Project and Improvements
which Holder elects to construct by written agreement reasonably satisfactory to the Town. In
that event, the Holder must agree to complete the portion of the Improvements which the Holder
has elected to construct, in the manner provided in this Agreement, and submit evidence
reasonably satisfactory to the Town that it has the qualifications and financial :responsibility
necessary to perform such obligations.
Section 7.07 Rights of Lenders and Interested Parties. Financing for acquisition,
development and/or construction of the Project may be provided, in whole or in part, from time
to time, by one or more third parties, including, without limitation, lenders, major tenants, and
purchasers or developers of portions of the Site. The Town will recognize the rights of such
interested parties and will otherwise permit such interested parties to assume all of the rights and
obligations of Developer under this Agreement. The Town will have the right to approve such
interested parties, and such approval shall not unreasonably be withheld. The Town will, at any
time upon reasonable request by Developer, provide to any interested party an estoppel
certificate or other document evidencing that this Agreement is in full force and effect. Upon
request from an interested party, the Town will enter into a separate assumption or similar
agreement with such interested party, consistent with the provisions of this Section 7.07.
Section 7.08 Miscellaneous. The Town will not be required or expected to provide any
financial assistance to the Developer or its tenants other than as set forth in this Agreement. The
responsibility for the maintenance, repair and replacement of the Public Improvements and
Private Improvements shall be as indicated in Section 2.04(b) and Developer shall have no
responsibility for the maintenance, repair or replacement of the New Parking Structure (other
than the Private Parking) or the Parking Related Infrastructure.
38
ARTICLE VIII
LETTER OF CREDIT
Section 8.01 New Parking Structure Letter of Credit.
(a) The New Parking Structure is planned to be constructed in three phases, primarily
between April and November of each year, so as to cause minimal interference with peak, winter
ski-season parking. To ensure that the New Parking Structure will be constructed in a timely
manner, the Parties have agreed that Developer will obtain a Garage LOC. In the event of a
Developer default pursuant to Section 5.02(f), it is the intent of the Parties that the Garage LOC
will allow the Town to quickly and efficiently continue construction, or cause construction to be
continued, on the New Parking Structure.
(b) The Construction Contract. for the New Parking Structure between the Developer
and the Construction Contractor shall name the Town as a third party beneficiary thereunder.
Section 8.02 Garage LOC Characteristics.
(a) The Garage LOC shall be in favor of the Town. The Developer shall be tree
obligated party under the Garage LOC.
(b) Developer shall pay the costs and fees associated with maintaining the stated
amount of the Garage LOC, as the same may be increased or decreased from time to time, unle:~s
Town has drawn on the Garage LOC.
(c) The terms of the Garage LOC will reflect an authorized amount, a stated amount
and a time period relating to the projected cost and period of construction for each of (i) Phase I
and (ii) Phase II and Phase III of the New Parking Structure. Upon completion of construction of
each of Phase I and Phase II of the New Parking Structure, the terms and amount of the Garage
LOC shall be revised to reflect the authorized amount, stated amount and a time period relating
to the projected cost and period of construction for the next phase of the New Parking Structure
construction.
(d) For each of (i) Phase I and (ii) Phase II and Phase III of the New Parking
Structure, the stated amount of the Garage LOC will reflect the cost of the Construction Contract
for such phase and any other costs the Parties agree to ,include in the stated amount. As
construction for each phase proceeds, and payments are made on the Construction Contract, the
stated amount of the Garage LOC will automatically be reduced by the amount of such payment:,
such that the stated amount of the Garage LOC will never exceed the remaining cost of the
Construction Contract for each phase, except to the extent such excess amount is reflective of
additional potential costs agreed to by the Parties.
(e) The authorized amount, stated amount, time period and terms of the Garage LOC;
for each phase of New Parking Structure construction may be revised through a replacement
Garage LOC, replacement of the Garage LOC bank, trust company or other financial institution,
amendments to the Garage LOC or through any other method Developer deems appropriate, so
long as the Garage LOC is always in place to guarantee the completion of each phase of the New
Parking Structure construction that remains to be completed.
39
Section 8.03 Drawing on the Gara eg LOC.
(a) In the event Town plans to draw on the Garage LOC, the Town shall provide
written notice to Developer that Town plans to exercise its rights under the Garage LOC in
accordance with this Article and the provisions of Section 5.02(f).
(b) If Town exercises its rights hereunder and draws on the Garage LOC pursuant to
this Article and Section 5.02(f), Town shall assume all of Developer's rights and obligations set
forth in the Construction Contract for the New Parking Structure as the third party beneficiary
thereunder. Town shall use the Garage LOC proceeds to ensure completion of the remaining
construction of the applicable phase of the New Parking Structure.
Section 8.04 Termination of Garage LOC. So long as Developer has not defaulted
hereunder, the Garage LOC shall automatically terminate on the Date of New Parking Structure
Final Completion, and neither Party shall continue to have any rights or obligations thereunder.
ARTICLE IX
TOWN OBLIGATIONS AND COVENANTS
Section 9.01 Town Obligations After Escrow Delivery. The Town shall have the
following responsibilities and obligations, using commercially reasonable efforts to perform such
responsibilities and fulfill such obligations, after Escrow Delivery:
(a) The Town shall, in accordance with its normal policies and procedures, continue
to execute such licenses, permits, easements, .rights of way and other agreements as Developer
determines to be necessary or convenient to provide access by Developer, its agents and
employees to the Site for purposes of developing the Site, providing utility service to the Site or
to otherwise facilitate or accommodate development of the Site.
(b) The Town shall continue to approve and execute documents necessary to
effectuate any additional title transfer provided that the intended use of the Site in question is
consistent with the Approved Development Plan and any entitlements obtair.~ed for such
property.
(c) Town shall comply with its insurance obligations set forth in Article :KIII hereof.
(d) The Town shall generally cooperate with the Developer in its effort to develop the
Project.
(e) The Town shall continue to manage and operate any and all portions of the
Existing Garage and/or New Parking Structure open for public parking in accordance with the
normal and customary policies and practices of the Town.
(fj The Town agrees not to build or to cause to be built a conference center or similar
facility that would have the effect of competing with the Conference Center. Such obligation
will be incorporated into the terms of the Conference Center Agreement and will survive past the
term of this Agreement, or any termination hereof, until January 1, 2035.
40
(g) Following the Escrow Delivery Date, the Town shall grant no lien, and grant no
further encumbrances, upon the Site or the Public Improvements, provided, however, that so
long as no recorded or unrecorded lien or encumbrance attaches to the, Site or the Public
Improvements as a result thereof, the Town may assign all of its right, title and interest in and to
all rentals and other economic benefits deriving under and from this Agreement unto any lender
of the Town as collateral security for the performance by the Town of its obligations thereto.
(h) In furtherance of the development of the Project, the Town will grant, across and
upon any pertinent easement or property ownership interests held by the Town, and/or accept
new corresponding public or quasi-public easements for the affected utilities and other services
as configured for the development of the Project, subject to the Town's approval of tho:~e
configurations as they may affect Town property interests.
(i) The Town and Developer shall participate in a cooperative fashion in tt~e
preparation and implementation of a marketing plan for the Project.
Section 9.02 Covenant to Maintain Improvements. In addition to managing and
operating any and all portions of the Existing Garage and/or New Parking Structure open for
public parking, Town shall manage and operate, in accordance with this Agreement and tt~e
Shared Facilities Agreement, the New Parking Structure (including the Transportation Center,
the Replacement Public Facilities, but excluding the Private Parking) (the "Parking Facilities"),
and the applicable Road Improvements in a good and workmanlike manner in accordance with
commercially reasonable standards, upon receiving a New Parking Structure TCO or th.e
appropriate Remaining Components TCO for such Improvements.
(a) From and after the Effective Date, Town covenants to provide for any and all
operation, maintenance, general upkeep, management, security, insurance, housekeeping or any
other services with respect to the Road Improvements (excepting South Frontage Road) and the
Parking Facilities in a commercially reasonable manner.
(b) Developer shall bear no additional costs for the Road Improvements and the
Parking Facilities, other than the costs necessary to develop the Road Improvements and the
Parking Facilities to the Date of Project Final Completion and any related costs provided for in
the Construction Contract for the New Parking Structure, including any costs arising in the
warranty period thereunder. Upon the Date of New Parking Structure Final Completion,
Developer shall have no interest in, or responsibility or liability for the New Parking Structure.
(c) Town agrees to submit to an annual inspection of the Parking Facilities, arranged
and paid for by Developer, whereby Developer or any consultant of Developer's choosing, ma:~
inspect the Parking Facilities in order to ensure the general upkeep and maintenance thereof.
ARTICLE X
DEVELOPER OBLIGATIONS AND COVENANTS
Section 10.01 Developer Obligations After Escrow Delivery. The Developer shall have;
the following responsibilities and obligations, using. commercially reasonable efforts to perforrri
such responsibilities and fulfill such obligations, after Escrow Delivery:
41
(a) Developer shall arrange for all necessary financing, including any financing made
available by the Metropolitan District(s), to develop, design, construct, manage and install
infrastructure for the Project and to cause the construction of all such infrastructure.
(b) Developer shall comply with its insurance obligations set forth in Article XIII
below.
(c) Developer shall perform, or cause to be performed, any construction work on the
Site in a good and workmanlike manner, in accordance with all applicable laws and free of
mechanics liens and claims.
(d) Developer shall continue to manage all costs associated with the development of
the Project.
(e) Developer shall regularly report to the Town on the progress of the Project on
such occasions as the Town reasonably requests but not less than annually, and shall provide the
Town with an informal status report relating to all such items not less than once a month.
(f) .Developer shall design and develop the Project, or cause the Project to be
designed and developed, in accordance with the Approved Development Plan, subject to
compliance with all applicable ordinances, :requirements, rules, regulations, and policies of the
Town, including, without limitation, applicable zoning ordinances, requirements, rules,
regulations, and policies.
(g) Developer shall have determined prior to the Date of Project Final Completion, in
its sole discretion, that no changes in zoning or other land use and building provisions directly or
indirectly affecting the Site or the Project (including, without limitation, any local or Statewide
moratorium or other restriction on construction or issuance of water or sewer taps) have occurred
or are pending that would materially diminish Developer's ability to timely develop the Site and
Project in accordance with the Approved Development Plan.
(h) The Town and Developer shall participate in a cooperative fa.~hion in the
preparation and implementation of a marketing plan for the Project.
(i) The Developer shall generally cooperate with the Town in connection with
Developer's effort to develop the Project.
(j) Prior to the Commencement of Construction of Phase I of the 1'~ew Parking
Structure, the Developer shall have obtained the Garage LOC.
(k) Developer intends to pursue LEEDS certification for all eligible Improvements.
Section 10.02 Covenant to Maintain Private Improvements.
(a) From and after the Final Closing Date, Developer shall manage and operate the
Private Improvements in a good and workmanlike manner in accordance with commercially
reasonable standards.
42
(b) From and after the Final Closing Date, Developer hereby covenants to provide for
any and all operation, maintenance, general upkeep, management, .security, insurance, .
housekeeping or any other services with respect to the Private Improvements, in a commercially
reasonable manner.
Section 10.03 Plans, Reports, .Studies and Investi atg ions. The Developer shall regularly
provide the Town, without cost or expense to the Town, copies of all fmal plans, reports, studies,
and investigations (collectively, the "Plans") prepared by or on behalf of the Developer with
respect to the Public Improvements. To the extent the Plans are proprietary in nature nor
represent Developer's Proprietary Information, or other confidential commercial and fmancial
information, it is the intent of the Parties that such Plan be deemed confidential and not be
available as public records under the Colorado Open Records Act.
Section 10.04 Commencement and Completion of Construction. Developer wall
undertake Commencement of Construction and achieve the Date of Project Final Completion in
accordance with the terms of Article V hereof, as such target dates maybe extended by the terms
of this Agreement.
Section 10.05 Developer's Affiliates. Developer shall be entitled to use its Affiliates fir
both pre-construction, construction management, and post construction services provided that the
cost and terms of such services do not materially exceed prevailing market rates and terms.
Developer or any Affiliate of Developer shall have the right to manage any Private
Improvements ,and shall have the right to provide other ancillary services to the Private
Improvements (including without limitation, property management, marketing, leasin;;,
arranging fmancing) provided that the cost and terms of such services do not materially exceed
prevailing market rates and terms.
ARTICLE XI
REPRESENTATIONS, AND WARRANTIES
Section 11.01 Developer Representations and Warranties. Developer hereby represents
and warrants to Town that the following are true and accurate as of the Effective Date:
(a) Organization. As of the Effective Date, Developer (i) is duly organized, validly
existing and in good standing under the laws of its state of formation; and (ii) has duly registered
or qualified to do business and is in good standing in the State and in all other jurisdictions in
which the nature of its activities would, under the laws of such jurisdiction, require it to bye
registered or qualified to do business therein.
(b) Authority. This Agreement and the performance of Developer's obligations
hereunder have been duly authorized, executed and delivered by the Developer, and constitute
the valid, legally binding obligations of the Developer, as applicable, enforceable in accordance
with their terms.
(c) Other Agreements. Execution and performance of this Agreement, and the
consummation of the transactions contemplated hereby, will not result in any breach or violation
of any of the terms or provisions of or constitute a default under, any agreement or instrument b;y
which the Developer is or will be bound.
43
(d) Laws and Regulations. Neither the entering into of this Agreement nor the
consummation of the transaction herein described will constitute or result in a violation or breach
by the Developer of any judgment, order, writ, injunction or decree issued against or imposed
upon it, or will result in a violation of any applicable law, order, rule or regulation of any
governmental authority.
(e) Cooperation. Developer will cooperate with the Town, at the Town's expense,
with respect to any litigation brought by a third party against the Town and concerning the
Project, the Site or this Agreement.
(f) Litigation and Proceedings. There is no pending litigation, proceeding or
investigation contesting the power or authority of Developer or its officers with respect to the
Project, this Agreement or Developer's financing, and Developer is unaware of any such
litigation, proceeding, or investigation that has been threatened.
Section 11.02 Town Representations and Warranties. Town represents and warrants to
Developer that the following are true and accurate as of the Effective Date:
(a) Organization. The Town is a home rule Town duly organized and validly existing
under the State of Colorado.
(b) Authority. This Agreement and the performance of the Town's obligations
hereunder have been duly authorized, executed and delivered by the Town and constitute the
valid, legally binding obligations of the Town, enforceable in accordance with their terms.
(c) Other Agreements. Execution and performance of this Agreement, and the
consummation of the transactions contemplated hereby, will not result in any breach or violation
of any of the terms or provisions of or constitute a default under, any agreement or instrument by
which the Town is or will be bound.
(d) Laws and Regulations. Neither the entering into of this Agreement nor the
consummation of the transaction herein described will constitute or result in a violation or breach
by the Town of any judgment, order, writ, injunction or decree issued against or imposed upon it,
or will result in a violation of any applicable law, order, rule or regulation of any governmental
authority. There is no action, suit, proceeding or investigation pending which would become a
cloud on the title to the Site or any portion thereof or which questions the validity or
enforceability of the transaction herein described or any action taken in connection with said
transaction in any court or before or by any federal, district, county, or municipal department,
commission, board, bureau, agency or other governmental instrumentality. No approval,
consent, order or authorization of, or designation, registration or filing (other than for recording
purposes) with any governmental authority other than the Town is required in connection with
the consummation by the Town of the transaction herein described.
(e) Cooperation. Town will cooperate with the Developer, at the Developer's
expense, with respect to any litigation brought by a third party against Developer concerning the
Project, the Site or this Agreement.
44
(f) Litigation and Proceedings. There are no (i) claims, actions, suits, condemnation
actions, or other proceedings pending or, to the knowledge of Town, threatened by any entity
with respect to the Site or any use thereof, (ii) approvals, permits, easements, rights-of-wz~y,
zoning changes, uses or rights that have been denied, or to the knowledge of Town, may be
denied, by any governmental department or agency, or (iii) violations of any law, statute,
government regulation or requirement, that in any manner or to any extent may materially and
adversely affect the Site, or the value of the Site, or the likely eventual use of the Site, or
Developer's right, title or interest in and to the Site.
(g) Condemnation. Neither the whole nor any portion of the Site, includvsg
access thereto or any easement benefiting the Site, is subject to a temporary requisition of use by
any governmental authority or has been condemned, or taken in any proceeding similar to a
condemnation proceeding, nor is there now pending any condemnation, expropriation,
requisition or similar proceeding against the Site or any portion thereof. Town has received no
notice and has no knowledge that any such proceeding is contemplated.
(h) Tax Protest. There is no pending application, or proceeding for the reduction ,of
the assessed valuation of the Site or the property tax assessed against the Site for any tax year.
(i) Hazardous Materials. The Town has provided to Developer all information in i.ts
possession or of which it is aware related to, and the Town itself has not caused, any generation,
production, location, transportation, storage, treatment, discharge, disposal, use, release,
threatened release or other disposition upon or under the Site of, (i) any toxic or hazardo~zs
substance, or material, pollutant or waste subject to regulation under the Resource Conservation
and Recovery Act (as amended by the Hazardous and Solid Waste Amendments of 1984), 4E2
U.S.C. § 6901, et seq.; the Comprehensive Environmental Response, Compensation and Liabiliity
Act of 1980 (as amended by the Superfund Amendments and Reauthorization Act of 1986), 4.2
U.S.C. § 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.;
the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq.; the Clean Air Act, 42 U.S.C. §
7401, et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300h, et seq.; the Clean Water Act, 33
U.S.C. § 1251, et seq.; all applicable State counterparts to such federal legislation and any
regulations, guidelines, directives or other interpretations of any such enactment, all as amended
from time to time or any other applicable State or federal environmental protection law or
regulation; (ii) asbestos and asbestos-containing materials, special wastes, polychlorinated
biphenols (PCBs), used oil or any petroleum products, natural gas, radioactive material,
pesticides or methane in soil gas or (iii) any product, material or substance in any mannf;r
inconsistent with the regulations issued by, or so as to require a permit or approval from, th.e
State or the County or the Town, or in a manner that might cause the Town to inspect the Site or
issue an order pursuant to any applicable health code. The Town has no knowledge that there
exist or have existed on the Site any storage tanks (either above or below the ground) or septic
tanks or that there has been prepared any inspection report addressing any of the issues
referenced in this Section. The Town has no knowledge that there exist on the Site any
archeological or historic resources, any endangered or threatened species, or any wetlands.
(j) Other Rights. Other than Developer pursuant to this Agreement, no person or
entity has any right or option to purchase or otherwise acquire the Private Improvements or the
45
airspace above the Site or any portion thereof or interest therein, and there are no unrecorded
leases or other agreements related to the Site between the Town and any third party.
(k) Assessments. No portion of the Site is subject to or affected by any assessments
for improvements, whether or not a lien thereon, and the Town has no knowledge of any
assessments proposed on account of any such improvements or of any work proposed,
commenced or completed which could give rise to any such assessment.
(1) Permitted Exceptions. Other than as set forth in the Permitted Exceptions,
there are no leases, subleases, Licenses or other rental agreements or occupancy agreements
(written or verbal) that grant any interest in and to the Site or any portion thereof or any
improvement thereon or that otherwise give rights with regard to use of the Site or any portion
thereof or any improvement thereon.
(m) Encroachments. Except as shown on the Survey and the Title Commitment,
there exist no adverse claims by any person or entity (including but not limited to adjoining Site
owners) concerning, and no encroachments with respect to, the Site, and all fences located on the
Site are within the Site boundaries.
(n) Ownership. The Town holds fee simple title to the Site free and clear of all
liens and encumbrances except for (i) a deed restriction held by Vail Associates, which the
Parties intend to be removed through the terms of the Deed Restriction Agreement, and (ii) those
items listed as Permitted Exceptions.
(o) Utilities. Adequate public water, wastewater, sewer, storm drainage,
telephone, cable television, natural gas and electric lines, conduits or facilities are located on the
Site or in streets or alleys immediately adjoining the Site and are available for use on the Site
without additional cost to Developer other than normal connection charges. There are in effect
no moratoria or other restrictions affecting such utilities or their availability to the Site.
(p) Access. The Site fronts on, and has direct and unobstructed full-turn access
to, the following public highways or streets: South Frontage Road.
(q) Subdivision. As of the Final Closing Date, the Site will (i) appear in the public
records as a separate lot or lots, alienable without any further requirement of any law, rule or
regulation affecting the subdivision of real property, and (ii) comprise a separate tax lot or lots
for the levy of real property taxes in the jurisdiction where the Site is located.
(r) Documents. The documents delivered to Developer by the Town will be all of
the instruments, documents and agreements binding upon the Town or the Site pertaining to the
title, condition, use or operation of the Site and the expenses to which it is subject, will be true
and complete copies, and unless otherwise indicated, will be in full force and effect in
accordance with the terms thereof.
(s) Disclosure. No representation or warranty made by the Town in this
Agreement, or in any statement or certificate already furnished or to be furnished by the Town in
connection with the transaction contemplated herein, contains or will contain any untrue
46
statement or omits or will omit to state a material fact necessary to make the statements
contained therein not misleading.
ARTICLE XII
GENERAL COVENANTS, INDEMNITY AND RESPONSIBILITY
Section 12.01 Cooperation. The Town agrees to reasonably cooperate with Developer
in the implementation of this Agreement and related agreements hereunder. The Town agrees to
provide Developer with reasonable assistance with respect to (i) applications of the Developer
for building and other permits and approvals from the Town, and any permits or approvals
required from any governmental authority, whenever reasonably requested to do so; provided,
however, that all applications for such permits and approvals are in compliance with the
applicable ordinances and regulations, approved plans and specifications, and all applicable
codes, and (ii) obtaining the Town's approval of Developer's application for the Approved
Development Plan, and the Town agrees to reasonably cooperate with Developer and to provide
Developer reasonable assistance with respect to securing any construction and permanent
financing that Developer may reasonably require in connection with the .performance of its
obligations under this Agreement.
Section 12.02 Anti-Discrimination in Employment. In any activities undertaken under
this Agreement, Developer will not discriminate against any employee or applicant for
employment because of race, color, creed, religion, sex, marital status, sexual orientation,
handicap, ancestry or national origin.
Section 12.03 Construction of the Proiect. Construction of the Project, and the
contemplated uses and occupancies thereof, will comply with all applicable federal, State anal
Town laws, rules and regulations, including, but not limited to, building, zoning, and other
applicable land use codes, subject to modifications approved by the Town pursuant to the
planning, subdivision, zoning, environmental and other developmental ordinances and
regulations.
Section 12.04 Vacation and Dedication of Rights of Wax. Developer. will designate in
writing any street rights of way determined to be necessary or desirable in order to implement the
Approved Development Plan, and the Town will promptly commence and diligently pursue to
completion the vacation of the existing street rights of way within the Site in accordance with the
procedures set forth in the Town Code. After Developer completes construction of any discrete
segment of the Road Improvements or any discrete improvement within the Site, Developer willl
dedicate and the Town will accept the rights of way, Road Improvements, and/or other
improvement in accordance with the applicable Town Code and Approved Development Plan
provisions.
Section 12.05 Town's Responsibility. The Town will be responsible for, and to the
extent permitted by .law will reimburse Developer for, all costs and expenses incurred b:~
Developer as a result of, all claims or suits for and damages to property and injuries to persons,
including accidental death, to the extent caused by the Town's negligence in performing;
activities under this Agreement, whether such activities are undertaken by the Town or anyone
directly or indirectly employed or under contract to the Town.
47
Section 12.06 Notification of Claim. Each Party shall give the other Party prompt
written notice of any claim or action covered by the indemnities set forth in this Section,
provided, however, that the failure of one Party to notify the other Party shall in no way
prejudice the rights of said Party under this Agreement unless the other Party shall be prejudiced
by such failure and then only to the extent of such prejudice; and the other Party shall have the
right, but not the obligation, at its own expense, to participate in the defense of any such claim or
action with counsel of its choice.
Section 12.07 Developer's Indemnification. Developer shall defend, indemnify and hold
harmless the Town from and against any and all liability, claim of liability or expense arising out
of (i) entry upon the Site from and after the Effective Date by Developer or its agents or
Affiliates; (ii) the use, occupancy, conduct, operation or management of the Project by
Developer or its agents or Affiliates; (iii) any work whatsoever done on the Project by Developer
or its agents or Affiliates; (iv) any injury to or death of any person, or damage to any property
due to the negligence, tortious or other act or omission of Developer or its agents or Affiliates;
and from and against all expenses and liabilities incurred in connection with any claim of
liability or expense or any action or proceeding brought thereon (including but not limited to the
reasonable fees of attorneys, investigators and experts), all regardless of whether such liability or
claim of liability is asserted before or after the expiration or any earlier termination of this
Agreement. Nothing herein shall require that Developer indemnify the Town for the negligent or
intentional acts or omissions of the Town or its officers, officials, representative;;, employees,
consultants or agents, or third parties unrelated to Developer or its agents or Affiliates, to the
extent of any damage or injury caused directly by the Town, its officers, officials,
representatives, employees, consultants or agents or such unrelated third parties.
Section-12.08 Town's Indemnification. To the extent permitted by law and without
waiving any of the provisions of the Colorado Governmental Immunity Act, C.R.S. 24-10-101,
et seq., or any successor statute, the Town shall defend, indemnify and hold harmless Developer,
its Affiliates and agents against any liability, claim of liability or expense arising out of (i) entry
upon the Site from and after the Effective Date by the Town or its agents; (ii) the use, occupancy,
conduct, operation or management of the Site by the Town or its agents; (iii) any work
whatsoever done on the Site by the Town or its agents; and (iv) any injury to or death of any
person, or damage to any property due to the negligence, tortious or other act or omission of the
Town or its agents, and from and against all expenses and liabilities incurred in connection with
any claim of liability or expense or any action or proceeding brought thereon (including but not
limited to the fees of attorneys, investigators and experts), all regardless of whether such liability
or claim of liability is asserted before or after the expiration or any earlier termination of this
Agreement. Nothing herein shall require that Town indemnify Developer, its Affiliates or its
representatives, employees, consultants, or agents against the negligent or intentional acts or
omissions of Developer, its Affiliates or representatives, employees, consultants, or agents or
third parties unrelated to the Town, to the extent of any damage or injury caused directly or
indirectly by Developer, its Affiliates or its representatives, employees, consultants or agents or
such unrelated third parties.
Section 12.09 No Waiver of Governmental Immunity. No provision of this Agreement
shall act or be deemed to be a waiver by the Town or the Town of the Colorado Governmental
Immunity Act, CRS 24-10-101, et seq.
48
ARTICLE XIII
INSURANCE REQUIREMENTS
Section 13.01 Insurance Required From Effective Date to Final Closing Date.
(a) The Town is a self insured entity through the Colorado Intergovernmental .Risk
Sharing Agency, pursuant to the Town Code. The Town shall maintain adequate insurance on
the Site and its employees, agents and affiliates operating on the Site from the Effective Date to
the Date of Project Final Completion.
(i) The .Town will use its reasonable efforts to ensure that any contractors
and/or subcontractors employed by the Town for services on the Site (the "'Town Contractors")
are properly insured to meet the insurance requirements of Colorado Intergovernmental Risk
Sharing Agency and the Town Code, as applicable and as may be amended from time to tune,
before any Town Contractors are permitted to commence any work on the Site. The Town will
use its reasonable efforts to ensure that each insurance policy of any Town Contractors shell
name the Developer as an additional insured, at no additional expense to the Developer.
(ii) The Town will use its reasonable efforts to ensure that every insurance
policy maintained by any Town Contractors shall (i) provide that thirty (30) days advance
written notice shall be given to Developer of cancellation, modification, termination or lapse of
coverage except that only ten (10) days advance written notice shall be required in the event of
non payment of premium, and that such insurance, as to the interest of Developer, shall not lie
invalidated by any act or neglect of Developer, its Affiliates or agents, the Town or any other
named insured, additional insured or loss payee, nor by any foreclosure or any other proceedings
relating to the Site nor by any change in the title to or ownership of the Site, nor by use or
occupation of the Site for purposes more hazardous than are permitted by such policy; and (ii) :in
the event any insuring company is not domiciled within the United States of America, include a
United States Service of Suit clause (providing any actions against the insurer by the named
insured or Developer, its Affiliates or agents shall be .conducted within the jurisdiction of the
United States of America).
(iii) The Town will use its reasonable efforts to deliver to Developer, or cau:;e
any Town Contractors to deliver to Developer, a certificate of insurance showing tY-e
effectiveness of any insurance contemplated in this Section 13.01(a) above.. At least five (`>)
days before any such Town Contractors' insurance policy expires, Town will use its reasonab]'.e
efforts to deliver to Developer, or cause such Town Contractors to deliver to Developer, a
certificate of insurance showing the effectiveness of such insurance together with a new
certificate of insurance showing the effectiveness of a replacement policy.
(b) Developer shall maintain or cause to be maintained, at no cost to the Town, the
following insurance, from the Effective Date to the Closing Date:
(i) Commercial general liability insurance which insurance shall be written
on a so-called "Occurrence Basis, with X, C & U exclusions deleted (including completed
operations, operations of subcontractors, blanket contractual liability insurance, owned, non.-
owned and hired motor vehicle liability, personal injury liability) with combined single limits
49
against bodily injury and property damage of not less than $1,000,000 and with excess umbrella
coverage raising the total coverage to not less than $5,000,000. This policy should have a Broad
Form Endorsement and include the following coverages: Blanket Contractual Liability, Broad
Form Site Damage, Completed Operations and Personal Injury. Such limits can be satisfied
through excess liability policies;
(ii) Comprehensive Automobile Liability which insures against claims for
bodily injury and property damage arising from the use by the Developer of "any auto" with a
combined single limit of One Million and 00/I00 Dollars ($1,000,000.00) per accident;
(iii) Workers' compensation insurance covering all persons employed by
Developer with the required statutory coverages and limits, complying with State law;
Section 13.02 Insurance Required From Closing Date to Date of Project Final
Completion.
(a) The Town is a self insured entity through the Colorado Intergovernmental Risk
Sharing Agency, pursuant to the Town Code. The Town shall maintain adequate insurance on
the Site and its employees, agents and affiliates operating on the Site from the Effective Date to
the Date of Project Final Completion.
(b) Developer shall maintain or cause to be maintained, at no cost to the Town, the
following insurance relating to each of the Improvements (other than the Road Improvements),
from the Final Closing Date to the Date of Project Final Completion:
(i) With respect to the Improvements:
1) All Improvements under construction, from the Commencement of
Construction until the Date of Project Final Completion, "Builder's Special Form 100%
Completed Value Non-Reporting" or "Course of Construction" insurance;
2) With respect to all Improvements constructed pursuant to this
Agreement, special form risk property insurance;
3) Such coverage will include the Improvements themselves, all
materials and supplies included in the Improvements, and with respect to builder's risk coverage,
all materials and supplies to be used in completion of the Improvements, whether any or all of
the foregoing are located at the site, in.transit, or while temporarily stored off-site. The coverage
will be for "Special Perils" and, subject to reasonable commercial availability, will include
coverage for losses caused by fire; collapse; flood insurance if applicable; glass breakage; and
freezing;
(ii) Commercial general liability insurance which insurance shall be written
on a so-called "Occurrence Basis, with X, C & U exclusions deleted (including completed
operations, operations of subcontractors, blanket contractual liability insurance, owned, non-
owned and hired motor vehicle liability, personal injury liability) with combined single limits
against bodily injury and property damage of not less than $1,000,000 and with excess umbrella
coverage raising the total coverage to not less than $5,000,000. This policy should have a Broad
50
Form Endorsement and include the following coverages: Blanket Contractual Liability, Broad
Form Site Damage, Completed Operations and Personal Injury. Such limits can be satisfied
through excess liability policies;
(iii) Comprehensive Automobile Liability which insures against claims 1.'or
bodily injury and property damage arising from the use by the Developer of "any auto" with a
combined single limit of One Million and 00/100 Dollars ($1,000,000.00) per accident;
(iv) Workers' compensation insurance covering all persons employed by
Developer with the required statutory coverages and limits, complying with State law;
Section 13.03 General Insurance Requirements.
(a) Each Party will provide certified copies of all policies of insurance required under
this Article, to the other Party upon request. For the property insurance required to be carried by
Developer under Section 13.02(b)(i), Developer will cause its insurer(s) to provide the Town and
its commissioners, directors, officers, employees and agents with waivers of subrogation.
Developer will not obtain any property insurance that prohibits the insured from waiving
subrogation. For the property insurance required to be carried by Town under Section
13.02(a)(i) relating to the Improvements, Town will cause its insurer(s) to provide the Developer
and its directors, directors, officers, employees and agents with waivers of subrogation. Town
will not obtain any property insurance that prohibits the insured from waiving subrogation.
(b) The insurance coverages specified herein constitute the minimum requirements,
and said requirements will in no way lessen or limit the liability of Developer or Town under ttie
terms of this Agreement. Developer will procure and maintain, at its own expense and cost, an.y.
additional kinds and amounts of insurance on the Project that, in its judgment, may be necessary
for its proper protection in the completion of the Project.
(c) If any insurance required to be maintained by the any Party pursuant to thus
Article XIII (including the limits or any other terms under policies for such uisurance) ceases to
be available at all, or ceases to be available on commercially reasonable terms (as defined
below), in the commercial insurance market, then the such Party shall provide written notice to
the other Party of the first Party's opinion to that effect. Such opinion shall include (and shall be
based upon, among other things) a certificate from an independent insurance advisor o~f
recognized national standing pertaining to the then current state of the conunercial insurance
market. The second Party shall not unreasonably withhold its consent to modify such insurance
requirement based upon the first Party's opinion and such related documentation. The first Party
shall, in any event, obtain and maintain such lesser coverage as is then available on
commercially reasonable terms until the relevant insurance required pursuant to this Article XIII
again becomes available on commercially reasonable terms, whereupon the first Party shall
obtain and maintain such insurance. For the purpose of this Section, insurance will be
considered to be not "available on commercially reasonable terms" if (i) it is either not
obtainable or obtainable only at excessive costs, or (ii) it is generally not being carried by o;r
applicable to development projects or operations similar to and in the same geographic area a:~
the Project.
51
(d) Each Party shall contractually require that contractors/ subcontractors employed
by such Party are properly insured with limits satisfactory to the Town, based on the type of
work performed, before they are permitted to commence work on the Project.
(e) Each Party shall provide certificates of such insurance to the other Party, which
certificates shall show the other Party as additional insured parties.
(f) Each insurance policy required under this Article XIII shall be issued by an
insurer of recognized responsibility licensed to issue the policy in the State, having a general
policy holder's rating of not less than A- and a financial rating of VII or better as rated in the
most current "Best's Key Rating Guide" or BBB or better from S&P, or Baa3 or better from
Moody's.
(g) At least f ve (5) days before any required insurance policy expires, each Party
shall deliver to the other Party a certificate of insurance showing the effectiveness of the
insurance required by this Agreement together with a new certificate of insurance showing the
effectiveness of a replacement policy.
(h) If a Party is paid any proceeds under any policy of insurance naming the other
Party as an insured, on account of any loss, damage or liability, then the Party that is paid the
proceeds hereby releases (or shall be required to release) the other Party, to the extent of the
amount of such proceeds, or the amount of such proceeds. which would have been paid if the
required insurance was in effect, from any and all liability for such loss, damage or liability,
notwithstanding that such loss, damage or liability may arise out of the negligent or tortious act
or omission of the other Party.
(i) A waiver of right of recovery clause stating that the insurance policy shall not be
negated by such waiver shall be included in the insurance policies of each Party. Each Party
waives its and its insurers' rights of subrogation against the other Party.
(j) Every insurance policy maintained by Developer pursuant to this Agreement shall
(i) provide that thirty (30) days advance written notice shall be given to Town of cancellation,
modification, termination or lapse of coverage except that only ten (10) days. advance written
notice shall be required in the event of cancellation, modification, termination or lapse of
coverage as a result of non payment of premium; and that such insurance, as to the interest of the
Town, shall not be invalidated by any act or neglect of the Town or its respective agents,
employees, officers and representatives, Developer or any other named insured, additional
insured or loss payee, nor by any foreclosure or any other proceedings relating to the Site nor by
any change in the title to or ownership of the Site, nor by use or occupation of the Site for
purposes more hazardous than are permitted by such policy; and (ii) in the event any insuring
company is not domiciled within the United States of America, include a United States Service
of Suit clause (providing any actions against the insurer by the named insured or the; Town shall
be conducted within the jurisdiction of the United States of America).
(k) Every insurance policy maintained by the Town pursuant to this Agreement shall
(i) provide that thirty (30) days advance written notice shall be given to Developer of
cancellation, modification, termination or lapse of coverage except that only ten (10) days
52
advance written notice shall be required in the event of non payment of premium, and that such
insurance, as to the interest of Developer, shall not be invalidated by any act or neglect of
Developer, its Affiliates or agents, the Town or any other named insured, additional insured or
loss payee, nor by any foreclosure or any other proceedings relating to the Site nor by a:ny
change in the title to or ownership of the Site, nor by use or occupation of the Site for purposes
more hazardous than are permitted by such policy; and (ii) in the event any insuring company is
not domiciled within the United States of America, include a United States Service of Suit clause
(providing any actions against the insurer by the named insured or Develaper, its Affiliates or
agents shall be conducted within the jurisdiction of the United States of America).
(1) The insurance required in this Article XIII may be provided under a combination
of primary liability and excess liability policies and may be insured under a blanket insurance
policy obtained by the Developer or its Affiliate or by Town, as the case may be.
ARTICLE XIV
EVENTS OF DEFAULT, REMEDIES AND TERNIINATION
Section 14.01 Events of Default After Escrow Delivery Date. Each of the following,
which occur after the Escrow Delivery Date, and which remain uncured after the expiration of all
applicable cure periods, shall constitute an event of default ("Event of Default") under this
Agreement:
(a) Prior to the Date of Project Final Completion, Developer shall file a petition inn
bankruptcy or other petition for creditors' relief shall have been filed against Developer and shall
not be dismissed within sixty (60) days, or any material written representation by Developer as t:o
its fmancial condition shall have been false; and
(b) Developer or the Town shall be in default of any of its material, respective duties
or obligations hereunder, including but not limited to complying with Sections 5.02, 5.03, and
2.03(f), as pertains to the Developer, and Sections 4.06(a)(i) and 9.01, as pertains to the Town.
Section 14.02 Default Notice.
(a) If a default occurs under this Agreement, the non-defaulting Party shall deliver
notice ("Default Notice") to the Party in default, specifying the nature of the alleged Event o~f
Default, and in accordance with Section 16.03 below. The non-defaulting Party shall have no
right to exercise any remedy for such default without delivering the Default Notice as provided
herein.
(b) The non-defaulting Parry shall not have the right to exercise a remedy hereunder
after delivery of a Default Notice if the default is commenced to be cured by the defaulting Party
within thirty (30) days and thereafter is diligently pursued to completion of cure within ~i
reasonable time; except for Town's termination right due to the Developer's failure to convey,
pursuant to Section 2.03(f), any remaining interest it has in the Conference Center (or the area o:f
the Development Parcel where the Conference Center has been constructed) to the Metropolitan
District(s) following the Date of Project Final Completion, for which the Developer shall have;
only ten (10) days to cure from delivery of the Default Notice.
53
Section 14.03 Town's Option to Reenter and Repossess Portions of the Project.
(a) Following an Event of Default by Developer that occurs after the Escrow
Delivery Date and prior to the Date of Project Final Completion, the Town shall have the right at
its option to take title, reenter and repossess any portions of the Public Improvements and Private
Improvements that, at the time of default, have not been issued a Remaining Project Components
TCO.
(b) The Town agrees that the foregoing described right to take title, reenter and
repossess certain portions of the Project shall apply only to portions of the Project that meet all
of the following criteria: (i) have not been sold or ground-leased to third parties by Developer at
the time the Town delivers notice or exercise of the right to Developer; and (ii) are not developed
with buildings that have received a Remaining Project Components TCO or aze under
construction prior to the expiration of all applicable cure periods.
(c) To exercise its right to take title, reenter and repossess any portion of the Project
under this Section 14.03, the Town shall give written notice to Developer of its election to retake
identified portions of the Project, and in accordance with Section 16.03 below.
(d) The Town's right to take title, reenter and repossess any portion of the Project
under this Section 14.03 shall be the Town's sole and exclusive remedy for an Event of Default,
other than termination of this Agreement pursuant to Section 14.07 below. The Town's exercise
of its rights under this Section 14.03 shall operate as a full and final release of L>eveloper, its
successors and assigns under this Agreement, and the .Town shall have no other rights or
remedies under this Agreement, other than termination of this Agreement pursuant to Section
14.07 below. If the Town does not elect to exercise its right to take title and reentry under this
Section 14.03, then the Town-shall have no other remedies for an Event of Default, other than
termination of this Agreement pursuant to Section 14.07 below, and the Town hereby waives all
other rights and remedies, including but not limited to monetary damages.
(e) Upon the reverting in the Town of title to any portion of the Project as provided in
this Section 14.03, the Town shall, pursuant to its responsibilities under Colorado law, use its
best efforts to resell the same as soon and in such manner as the Town shall find feasible and
consistent with the objectives of such law and to a qualified and responsible party or parties (as
reasonably determined by the Town) who will assume the obligations of developing, making or
completing the Public Improvements or Private Improvements in Developer's stead as shall be
reasonably satisfactory to the Town and in accordance with the uses specified therefore in the
Lionshead Redevelopment Master Plan. Upon such resale, the proceeds thereof shall be applied
as follows:
(i) First, to reimburse the Town, on its own behalf, for all costs and expenses
incurred by the Town to third party consultants, including attorneys, in connection with the
recapture, management and resale of the Project, less any income or gain derived by the Town
therefrom or the improvements thereon in connection with such management, recapture or sale;
all taxes, assessments and water or sewer charges with respect thereto which Developer has not
paid; any payments made to discharge or prevent from attaching or being made any subsequent
encumbrances or liens due to obligations, defaults or acts of Developer, its successors, assigns or
54
transferees; and any expenditures made or obligations incurred with respect to the development,
making or completion of the Public Improvements, Private Improvements or any part thereof on
the Site;
(ii) Second, to reimburse Developer or its successors, assigns or transferees (if
applicable), up to the amount equal to the costs incurred by Developer for the, development of the
Site, including any fmancing cost and outstanding debt service payments, and for the
Improvements existing thereon at the time of reentry and repossession, less any gains or incotne
withdrawn or made by Developer therefrom for the Improvements thereon; and
(iii) Third, any balance remaining after such reimbursements shall be retained
by the Town as its property.
(f) If Developer's Event of Default occurs prior to the Date of Project Finial
Completion but following the date a Reir~aining Project Components TCO has been obtained f'or
one of the Lodging hotels or the Retail Development, the Town agrees that any such hotel sh;~ll
be in either the Smith Travel Research "Luxury" or "Upper Upscale" category and shall not have
more than 120 guest rooms.
(g) Notwithstanding any other provision of this Agreement, the Town's right ,of
reverter under this Section 14.03 and any proceedings hereunder shall terminate and be of iio
further force or effect upon the Date of Project Final Completion, and the Town shall have no
further right of reverter.
(h) The rights established in this Section 14.03 are to be interpreted in light of the fact
that the fee interest in the Development Parcel and the development area of the Site where the
Private Parking will be located are being conveyed to Developer for development, and not fir
speculation in undeveloped land.
Section 14.04 Developer's Remedies. Following an -Event of Default by Town that
occurs after the Escrow Delivery Date and prior to the Date of Project Final Completion, Town
shall pay to Developer liquidated damages in the amount of one hundred twenty-five percent
(125%) of Developer's (or its Affiliate's) predevelopment and development costs incurred
through the date of termination, as documented by an accounting submitted by the Developer. :[f
within five years following such Event of Default, the Town enters into a letter of intent or
contract to develop the remaining portion of the property with an entity or individual other than
the Developer or its Affiliates, Town shall pay to Developer additional liquidated damages in an
amount equal to any payment or consideration received by Town for such development. TH:E
PARTIES AGREE THAT DEVELOPER'S LIQUIDATED DAMAGES IN THE EVENT OF A
DEFAULT BY THE TOWN IN ACCORDANCE WITH THIS SECTION 14.04 ARIE
DIFFICULT TO DETERMINE AND THE FOREGOING AMOUNTS OF LIQUIDATED
DAMAGES REPRESENT A REASONABLE ESTIMATE OF THE ACTUAL DAMAGES
THAT DEVELOPER. WOULD SUFFER UPON A DEFAULT.
55
Section 14.05 Termination by the Town Prior to Escrow Delivery Date.
(a) If in Town's reasonable estimation Developer has failed to comply with the
Escrow Delivery Conditions set forth in Section 4.03(u) through Section 4.03(x) by the Escrow
Delivery Date, Town may terminate this Agreement.
(b) The right of termination set forth in this Section 14.05 shall be the Town's sole
and exclusive remedy for a Developer's failure to meet such Escrow Delivery Conditions upon
Escrow Delivery. In no event shall the Town be entitled to damages, including but not limited to
monetary damages of any kind or specific performance.
Section 14.06 Termination by Developer Prior to Escrow Delivery Date.
(a) Developer may terminate this Agreement prior to Escrow Delivery for any reason
in its sole and absolute discretion and without penalty. In connection therewith Developer shall
deliver hard copies (or electronic copies if Developer so elects), of the last version of all
planning, design and development documents (other than Developer's Proprietary Information)
concerning the Site and the Project to the Town, all without charge to the Town., and neither
Party shall have any further obligation under this Agreement.
(b) If in Developer's reasonable estimation at Escrow Delivery, Town has failed to
comply with the Escrow Delivery Conditions set forth in Sections 4.03(a) through 4.03(t),
Developer may terminate this Agreement pursuant to this Section.
(c) The right of termination set forth in this Section 14.06 shall be the Developer's
sole and exclusive remedy for Town's failure to meet such Escrow Delivery Conditions upon
Escrow Delivery. In no event shall the Developer be entitled to damages, including but not
limited to monetary damages or any kind or specific performance.
(d) Notwithstanding anything in this Agreement to the contrary, if Developer
terminates this Agreement prior to Escrow Delivery in accordance with this Section 14.06,
Developer hereby agrees to reimburse the Town for any of its outside consultant costs relating to
the Project or this Agreement that were incurred by the Town prior to such termination date in an
amount not to exceed $50,000.
(e) In the event that this Agreement terminates prior to Escrow Delivery while any
Site Investigation is underway, Developer shall repair any damage to the Site caused by
Developer or its agents requested by the Town.
Section 14.07 Option to Terminate. Without limitation upon any other termination right
set forth herein, Developer and Town will have the right to terminate this Agreement if an Event
of Default by other Party occurs and is continuing, and any applicable cure period for the Event
of Default has expired.
Section 14.08 Action to Terminate. Notice of termination of this Agreement must be
accomplished by written notification delivered to the other parties hereto in accordance with
Section 16.03 below. Termination will be effective on the date specified in such notice.
56
Section 14.09 Effect of Termination. If this Agreement is terminated pursuant to Section
14.05 or Section 1.4.06 hereof, then this Agreement will be null and void and of no further effect,
and no action, claim or demand may be based on any term or provision of this Agreement;
provided, however, that certain obligations set forth herein will survive termination..
Section 14.10 Scheduled Termination. If not otherwise terminated earlier as provided
herein, this Agreement will terminate upon the Date of Project Final Completion.
Section 14.11 Survival After Termination. As set forth herein, the only provisions of
this Agreement that survive termination are those that expressly include survival of termination
language, as set forth in this Section or otherwise in this Agreement.
(a) The Town's obligation to maintain the New Parking Structure (excepting the
Private Parking) set forth in Section 9.02 shall survive any termination of this Agreement.
(b) If any closing of any financing has occurred, the Metropolitan District(s) and
Developer's obligations under any financing documents with respect to such fmancing will
survive any termination of this Agreement.
ARTICLE XV
RESTRICTIONS ON ASSIGNMENT AND TRANSFER
Section 15.01 Representations as to Development. Developer's undertakings under thds
Agreement are for the purpose of development of the Site and not for land holding •or
speculation. Developer and Town acknowledge that:
(a) The development of the Site is important to the general .welfare of the Town acid
Developer, and is consistent with the Lionshead Redevelopment Master Plan;
(b) The Developer intends to make available substantial financing and other aids Ito
make the development possible; and
(c) It is because of the qualifications and identity of Developer that the Town is
entering into this Agreement with Developer, and is willing to accept and rely on the obligations
of Developer for the faithful performance of all of its undertakings and covenants under this .
Agreement.
Section 15.02 Limitation on Assi ent. Except as otherwise provided in this Section
15.02, prior to the Date of Project Final Completion, Developer will not assign its rights, ar
delegate its duties and obligations under this Agreement without the prior written consent of tb.e
Town, not to be unreasonably withheld, delayed or conditioned. Any purported assignment
without consent of the Town will be null and void. As a condition to the Town granting consent,
an assignee will expressly assume in writing the obligations of Developer hereunder. Far
purposes of this Section 15.02, any sale, transfer, assignment, pledge or hypothecation of an
interest in Developer (other than to an Affiliate of Developer) that results in a change in
management control of Developer will constitute an assignment of this Agreement.
Notwithstanding the foregoing:
57
(a) Following the Date of Project Final Completion, Developer may freely convey the
Private Improvements, assign its rights, and delegate its duties and obligations under this
Agreement without the Town's consent.
(b) Developer may at any time without the Town's consent, convey any interest it has
in the Site and Project, or Developer's interest in any portion of the Site or Project, or assign its
rights, and delegate its duties and obligations under this Agreement to an Affiliate, or to or from
an accommodator or intermediary for purposes of carrying out an Internal Revenue Code Section
1031 exchange provided that, at the conclusion of the exchange transactions, the Site, Project or
portion of either thereof shall be owned by an Affiliate or another transferee otherwise permitted
hereunder.
(c) No consent will be required under this Section 15.02 for any pledge or assignment
of this Agreement as collateral security for Developer's financing that is consistent with the
terms of the Finance Plan.
Section 15.03 Effect Unon Obli ations. In the event of any assignment that is approved,
deemed approved or permitted hereunder, Developer shall be released from any further liability
or obligation under this Agreement upon execution by the assignee of a document (in a form
reasonably acceptable to the Town) by which the assignee agrees to assume those of Developer's
obligations under this Agreement that are being assigned to the assignee from and after the date
of the assignment.
ARTICLE XVI
MISCELLANEOUS
Section 16.01 Amendment of Agreement. Except as otherwise set forth in this
Agreement, this Agreement may not be amended or terminated except by mututil consent in
writing of Developer and the Town, following the public notice and public hearing procedures
required for approval of the Approved Development Plan, or this Agreement, as applicable.
Section 16.02 No Implied Waiver. No provision of this Agreement will be construed as
an implied waiver by Developer of its right to any payment, reimbursement, tax or fee waiver, or
reimbursement to which it is otherwise entitled by law or as an implied waiver or acquiescence
in the impairment of any of its substantive or procedural rights under the Local Government
Land Use Control Enabling Act of 1974, sections 29-20-104.5 and 29-20-201 through 204,
C.R.S., as amended, or as an implied agreement by Developer to be responsible for more than its
proportionate share of any regional public infrastructure improvements or to be responsible for
the costs of improvements that are not roughly proportional to the direct impacts of the
development of the Project.
Section 16.03 Notices. Any notice (a) shall be in writing; (b) shall be sent by (i) certified
or registered mail in the United States mails, postage prepaid, return receipt requested, or (ii) by
Federal Express or another national courier service, or (iii) (if such Party's receipt thereof is
acknowledged by a signed delivery receipt) upon having been given by hand or other actual
delivery to such Party; in each case to the address of such Party set forth herein below or to such
other address in the United States of America as such party may designate from time to time to
58
each other Party. Any Notice sent by the method described in (i) above shall be effective two (2)
Business Days after mailing. Any Notice sent by the method described in (ii) above shall be
effective on the next Business Day after having been sent; and any Notice sent by the method
described in (iii) above shall be effective upon delivery. Failure to provide notice under tlus
Agreement shall not be considered an Event of Default hereunder.
If to Developer, to:
OHP VAIL ONE, LLC
2525 McKinnon Street
Suite 750
Dallas, Texas 75201
Attn: Mark Masinter
With a copy to:
Kaplan Kirsch & Rockwell LLP
1675 Broadway, Suite 2300
Denver, Colorado 80202
Attn: Stephen H. Kaplan
And a copy to:
Bailey & Peterson, P.C.
108 South Frontage Road
Suite 208
Vail, Colorado 81657
Attn: Jay Peterson
If to the Town, to:
Town of Vail, Colorado
75 South Frontage Road
Vail, Colorado 81657
Attn: Town Manager, Town Attorney and Public Works Director
Section 16.04 Waiver. No Party shall have waived the exercise of any right that it holds
hereunder unless such waiver is made expressly and in writing (and, without limiting the
generality of the foregoing, no delay or omission by any party hereto in exercising any such right
shall be deemed a waiver of its future exercise). No failure by any Party hereto to insist upon the
strict performance of any covenant, duty, agreement or condition of this Agreement, or to
exercise any right or remedy consequent upon a breach of this Agreement, will constitute a
waiver of any such breach or of such or any other covenant, agreement, term or condition. An,y
Parry by giving notice to the other Parties may, but will not be required to, waive any of its rights
or any conditions to any of its obligations hereunder. No waiver will affect or alter the
remainder of this Agreement, but each and every covenant, agreement, term and condition of this
59
Agreement will continue in full force and effect with respect to any other then existing or
subsequent breach.
Section 16.05 Attorne s' Fees. In any proceeding brought to enforce the provisions of
this Agreement, the court will award the prevailing party (whether by judgment or out of court
settlement) therein reasonable attorneys' fees, actual court costs and other expenses incurred.
Section 16.06 Conflicts of Interest. The Town will not allow, and except as disclosed in
writing to the Town, Developer will not knowingly permit, any of the following persons to have
any interest, direct or indirect, in this Agreement: a member of the governing body of the Town;
an employee of the Town who exercises responsibility concerning the Project; or an individual or
firm retained by the Town who has performed consulting or other professional services in
connection with the Project. 'The Town will not allow and Developer will not knowingly permit
any of the above persons or entities to participate in any decision relating to this Agreement that
affects his or her personal interest or the interest of any corporation, partnership or association in
which he or she is directly or indirectly interested.
Section 16.07 Titles of Sections. Any titles of the several parts and Sections of this
Agreement are inserted for convenience and reference only and will be disregarded in construing
or interpreting any of its provisions.
Section 16.08 Town Not a Partner Developer Not Town's Agent. Notwithstanding any
language in this Agreement or any other agreement, representation or warranty to the contrary,
the Town will not be deemed or construed to be a partner or joint venturer of Developer,
Developer will not be the agent of the Town, and the Town will not be responsible for any debt
or liability of Developer.
Section 16.09 Applicable Law; Venue. The laws of the State will govern the
interpretation and enforcement of this Agreement. Venue for any action arising under this
Agreement or any amendment or renewal hereof shall be in the District Court of Eagle County,
Colorado; provided, that if any such action or proceeding arises under the Constitution, laws or
treaties of the United States of America, or if there is a diversity of citizenship between the
parties thereto, so that it is to be brought in a United States District Court, it shall be brought in
the United States District Court for the District of Colorado or any successor federal court having
original jurisdiction.
Section 16.10 Binding Effect. This Agreement will be binding on and inure to the
benefit of the parties hereto, and their successors and assigns, subject to the lunitations on
assignment of this Agreement by Developer set forth in Section 15.02.
Section 16.11 Further Assurances. The parties hereto agree to execute such documents,
and take such actions, as will be reasonably requested by the other party hereto to confum or
clarify the intent of the provisions hereof and to effectuate the agreements herein contained and
the intent hereof.
Section 16.12 Severabilitv. If any provision, covenant, agreement or portion of this
Agreement, or its application to any person, entity or property, is held invalid, such invalidity
will not affect the application or validity of any other provisions, covenants or portions of this
60
Agreement and, to that end, any provisions, covenants, agreements and portions of this
Agreement and declared to be severable.
Section 16.13 Good Faith; Consent or Approval. In performance of this Agreement or in
considering any requested extension of time, the Parties agree that each will act in good faith_ and
will not act unreasonably, arbitrarily, capriciously or unreasonably withhold or delay any
approval required by this Agreement except those related to the Developer's obligations in
Section 2.03(f). Except as otherwise provided in this Agreement, whenever consent or approval
of any Party is required, such consent or approval will not be unreasonably withheld, conditioned
or delayed. Developer agrees and acknowledges that in each instance in this Agreement or
elsewhere where the Town is required or has the right to review or give its approval or consent,
no such review, approval or consent will imply or be deemed to constitute an opinion by the
Town, nor impose upon the Town, any responsibility for the design or construction of buildvng
elements, including, but not limited to, the structural integrity or life/safety requirements or
adequacy of budgets or financing or compliance with any applicable federal or State law, or local
ordinance or regulation, including the Environmental Laws. All reviews, approval and conser.~ts
by the Town under the .terms of this Agreement are for the sole and exclusive benefit of
Developer or its assignee and no other person or party will have the right to rely thereon.
Delivery of a notice to Developer executed by the Town Manager purporting to provide approval
or disapproval of any particular activity, action, plan or other item provided for hereunder may
be relied upon by Developer as conclusive evidence of such approval or disapproval by the
Town.
Section 16.14 Counterparts. This Agreement may be executed in several counterparts,
each of .which will be an original and all of which will constitute but one and the same
instrument.
Section 16.15 Non-Liability of Town Officials and Employees. No council member,
commissioner, board member, official, employee, agent of consultant of the Town will lie
personally liable to Developer in an Event of a Default by the Town or for any amount that may
become due to Developer under the terms of this Agreement.
Section 16.16 Incorooration of Exhibits. All exhibits attached to this Agreement are
incorporated into and made a part of this Agreement.
Section 16.17 Jointly Drafted: Rules of Construction. The Parties hereto agree that this
Agreement was jointly drafted, and, therefore, waive the application of any law, regulation,
holding, or rule of construction providing that ambiguities in an agreement or other document
will be construed against the party drafting such agreement or document.
Section 16.18 Brokers. Town shall not be responsible for the cost of any real estate
broker's commissions under the transactions contemplated under this Agreement. Developer
shall have no responsibility for payment of any real estate broker's commissions to any real
estate broker acting as an agent on behalf of the Town related to the Site. Developer shall
indemnify and hold the Town harmless from any claim, liability, loss or damage arising from
any claim or assertion for a brokerage commission or fee from any individual or entity claiming
by, through or under Developer.
61
Section 16.19 Non-Discrimination. The Developer hereby covenants anal agrees that
there shall be no discrimination against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status, national origin, ancestry, age, or
handicap, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Site,
nor shall the Developer or any person claiming under or through the Developer; establish or
permit any such practice or practices of discrimination or segregation in the selection, location,
number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees of the Site.
Section 16.20 Confidentiality ofMaterials.
(a) Generally. Certain materials and information to be provided to the Town and
by the Developer under this Agreement are confidential and proprietary in nature. For any
document or information that Developer provides to Town and marks as "Confidential -
Developer's Proprietary Information," the Town will use all reasonable efforts to ensure that
such documents and information are kept confidential and proprietary to the maximum extent
protected pursuant to law, including, without limitation, the Colorado Open Records Act and the
Colorado Open Meetings Law set forth at Title 24, Article 6, Sections 401 through 402 of the
Colorado Revised Statutes. If Developer delivers Developer's Proprietary Information to the
Town, Town shall hold such information separate from other Developer information received by
Town, and shall file such information in a file marked "Confidential-OHP VAIL ONE, LLC
Proprietary Information-Not to be Released Without Consent." Town shall use commercially
reasonable efforts to ensure that copies of Developer's Proprietary Information are not kept by
individual Town officials or employees from Town's designated file for holding such
information. The obligations set forth in this Section 16.20 shall survive any termviation of this
Agreement.
(b) Open Records Information. If Town or Developer receives a written request
under the provisions of State law relating to access to public records appearing at 24-72-101 et
seq. CRS, for information pertaining to the Project, the Town or Developer, as the case may be
will promptly inform the other Party thereof. The Parties will meet and confer to determine the
timing and appropriate response to the request.
Section 16.21 Effectiveness: Complete Understanding. This Agreement ~ shall become
effective on and only on its execution and delivery by each Party. This Agreement represents the
complete understanding between the Parties hereto as to the subject matter hereof, and
supersedes all prior negotiations, representations, guaranties, warranties, promises, statements or
agreements, either written or oral, between the Parties as to the same. No inducements,
representations, understandings or agreements have been made or relied upon in the making of
this Agreement, except those specifically set forth in this Agreement. Neither Party has any right
to rely on any other prior or contemporaneous representation made by anyone concerning this
Agreement that is not set forth herein. Notwithstanding the forgoing, nothing herein shall restrict
the rights of the Parties to enter into supplementary agreements to confirm, elaborate, verify or
modify the scope of the Project, provided that they follow applicable Town requirements.
Section 16.22 Time of the Essence.
(a) Time shall be of the essence in the performance of this Agreement.
62
(b) Notwithstanding the provisions of subsection (a) of this Section 16.22, delays
caused by or resulting from Force Majeure shall not be counted in determining the time when the
performance of such act shall be completed, whether such time is designated by a date or fixed
time, a fixed period of time or "a reasonable time," unless it is expressly stated that such date,
time or period may not be extended due to Force Majeure; and further provided (i) the delayed
Party notifies the other Party of such delays and the cause thereof within a reasonable period of
time following a Force Majeure but in any event not more than sixty (60) Business Days; and (ii)
the delayed Party uses commercially reasonable efforts and all due diligence to effect the
required performance.
Section 16.23 Covenants Running With the Land. The covenants and obligations of the
Town hereunder touch and concern the Site and are intended to be covenants running with the
land. Unless the Site or portion thereof is released from the obligations of this Agreement, the
provisions hereof shall be for the benefit of and be binding on the Town and its respective
successors as owners or holders of interests in the Site and shall be fully enforceable by
Developer against the then current owner or owners of the Site.
Section 16.24 Recording. A memorandum of this Agreement shall be recorded in tihe
real properly records of Eagle County, Colorado.
[END OF DEVELOPMENT IMPROVEMENT AGREEMENT]
63
IN WITNESS WHEREOF, each Party has executed this Development Improvement
Agreement or caused it to be executed, under seal, on its behalf by its duly authorized
representatives as of the [~ day of [_____], 2007.
TOWN OF VAIL, COLORADO:
By:
Name:
Title:
OHP VAIL ONE, LLC:
By:
Name:
Title:
[SIGNATURE PAGE TO
DEVELOPMENT IMPROVEMENT AGREEMENT]
64
EXHIBIT A
SITE DESCRIPTION
The Site is legally described as follows:
PARCEL 1:
LOT 3, A RESUBDIVISION OF LOT 1, BLOCK 1, VAIL/LIONSHEAD, SECOND FILING,
ACCORDING TO THE PLAT RECRODED JANUARY 17, 1975 IN BOOK 238 AT PAGE
328, COUNTY OF EAGLE, STATE OF COLORADO.
PARCEL 2:
LOT 1, BLOCK 2, VAIL/LIONSHEAD FIRST FILING, ACCORDING TO THE PLAT
RECIRDED MAY 18, 1979 IN BOOK 217 AT PAGE 676, COUNTY OF EAGLE, STATE Ol?
COLORADO
EXHIBIT B
SITE MAP
EXHIBIT C
PROJECT DESCRIPTION
(INCORPORATED BY REFERENCE AS IF ATTACHED HERETO,
AND THE EXHIBIT IS ON FILE IN THE OFFICE OF THE TOWN MANAGER)
EXHIBIT C-1
PROPOSAL
(INCORPORATED BY REFERENCE AS IF ATTACHED HERETO,
AND THE EXHIBIT IS ON FILE IN THE OFFICE OF THE TOWN MANAGER)
EXHIBIT C-2
SUPPLEMENT
(INCORPORATED BY REFERENCE AS IF ATTACHED HERETO,
AND THE EXHIBIT IS ON FILE IN THE OFFICE OF THE TOWN MANAGER)
EXHIBIT C-3
TRAFFIC PATTERNS AND PARKING PROGRAM
(INCORPORATED BY REFERENCE AS IF ATTACHED HERETO,
AND THE EXHIBIT IS ON FILE IN THE OFFICE OF THE TOWN MANAGER)
EXHIBIT D
CONFERENCE CENTER SUMMARY
THE VAIL CONFERENCE CENTER -FACILITY CHARACTERSITICS
A. General
The Vail Conference Center will accommodate a wide range of events. The proposed
facility will have meeting space that is divided in both general session space and meeting/
breakout spaces capable of supporting conferences and meetings. The Vail Conference Center
will have pre-function space suitable for attendee registration, kitchen facilities for event caternlg
and presentation equipment suitable for both large groups and breakout sessions. The main
meeting space /ballroom will be divisible in .order to support simultaneous events. In total, tlhe
Vail Conference Center is proposed to have approximately 34,000 total gross square feet of
ballroom, breakout, pre-function, and back-of--the-house space, as may be amended acid
supplemented by the Conference Center Agree.
The Vail Conference Center is being designed and programmed to have facilities that are
similar or better than other conference centers in comparable resort settings. According to IIVS
Convention, Sports and Entertainment Facilities Consulting Division, Vail's peer comparable
resort conference facilities include Banff Centre, Monterey Conference Center, Snowmass
Conference Center, Telluride Conference Center, Keystone Conference Center and Whistler
Conference Center. The quality of design, materials, fmishes, furnishings and equipment being
planned is to be comparable in quality, or better, than these resort conference facilities.
B. Main Ballroom
The Main Ballroom/Exhibit Space will serve as both a large banquet area and an area fir
exhibits. The space will have ceilings of approximately twenty-five feet in height and clear spans
with limited numbers of support columns in the room. The quality level of the space will t>e
appropriate for Vail's finest formal dinners and social functions. The space will have attractive
and durable carpeting and will appear like a true balkoom rather than an exhibit hall. The spat;e
will be divisible with soundproof movable walls. Loading docks will be positioned strategically
to enable easy loading and unloading of exhibit materials. There will be sound attenuation and a
sophisticated sound and AV system. There will be a kitchen facility in close proximity to tine
ballroom space, which will insure efficient delivery of food service. There will be extensive
utility service in the ballroom space including but not limited to electricity, telecommunications,
hookups and water.
C. Meeting/Breakout Rooms
These rooms will vary in size from approximately 500 to 2,000 square feet. They will be
divisible into smaller units in order to provide maximum flexibility. They will be carpeted and
have a high level of finish. The majority of the meeting spaces will have flat floors and no fixed
seating so that they can be configured for an assortment of meeting needs. Meeting rooms will
have variable lighting setups, sound attenuation, and sophisticated sound and. AV systems. Thee
Boardrooms will be elegant meeting rooms with formal conference tables and seating.
2. VAIL CONFERENCE CENTER POSITIONING
Vail is a highly attractive location for event planners as both a resort destination and a
corporate/executive meeting destination. The Vail Conference Center will be positioned and
marketed as a combination executive and resort conference center.
As an executive conference center, the Vail Conference Center will provide facilities
needed for mid-to upper-level executive managerial meetings, including strategic planning,
forecasting and budgeting, sales and marketing, state-of--the corporation reports, new product
introductions and educational and training seminars. Clients will be corporations, associations,
government, institutions and social uses.
~owrroeuAn,
JULY 2007
VAIL BUSINESS REVIEW
September 6, 2007
Overall July sales tax decreased .9% with Retail increasing 2.2%, Lodging decreased 5.9%, Food and Beverage
de~:reased 3.2% and Utilities/Other (which is mainly utilities but also includes taxable services and rentals)
increased 5.7%.
Town of Vail sales tax forms, the Vail Business Review and the sales tax worksheet are available on the Internet
at www.vailgov.com. You can subscribe to have the Vail Business Review and the sales tax worksheet e-mailed
to you automatically from www.vailgov.com.
Please remember when reading the Vail Business Review that it is produced from sales tax collections, as
opposed to actual gross sales.
If you have any questions or comments please feel free to call me at (970) 479-2125 or Judy Camp at (970) 479-
2119.
Sincerely,
~ n ~~~_
Sally Lorton
Sales Tax Administrator
~l
July 2007 SALES SAX
VA/L VILLAGE
July July July
2006 2007
Collections Collections Chanc
Retail
Lodging
Food &
Beverage ',
Other
Total
209,092
119, 960
206,70
113,458
-1.1%'
°
-5.4 /°
2305147 238,E 72 3.5%
'' 2 10 4 4 24.1 ° ° III'
8,4 $ 5 /
567,625 '' 568,854 0.2°,~0
LIGNSHEAD
July July July
2006 2007
Collections Collections Chan e
Retail 38,621 35,053 -~.2%
Lodging ~I~ 95,141 82,351 -13.4%
Food &
Bevera
e
680
~~ 53
51
871 ~'
-3
4%
g , , .
Other 4,677 6,155 33.7%
Total 192,119 175,530 -8.6°~° ~
July 2007 SALES TAX
CASCADE VILLAGE/EAST VAIL/SANDSTONE/WEST V,4IL
Retail
Lodging
Food &
Beverage
Other
Total
July
2006
Collections
150,722
82,767
81, 677
6,336
- -- - -
32~,502
~~
153;297
78,333
63,992
5,940
301,562
July
°/®
Chanc~e_
1.7%
-5.4% ~I
-2'1.7%
-6.3%
-~
-li.2%
OUT OF TOWN
Retail
Lodging j
Food &
Beverage j
Utilities &
Other
Total
July July July
2006 2007
Collections Collections Change
~ _ - _
39,360 52,338 3~~.0%
1, 572 ~ 7, 716 39CL8%
1,447 1,248 -13.8%
131, 622 136, 984 4.1
_ _ - _ -~
174,001 198,286 14.0%
July
2007
Collections
July 2007 SALES TAX
TOTAL
July July July
2006 2007
Collections Collections Change
~ .
Retail 437,795 447,456 2.2%
Lodging 299,440 281,856 -5.9% '
Food &
Beverage 366,951 355,283 -3.2%
Utilities & ' 151,061 159,633 5.7%
Other
Total 1,255,24 ~~ 1,244,232 -0.9%
RETAIL SUMMARY
July
2006
Collections July.
2007
Collections. July
%~
Chan e
FOOD 120,044 125,859 4.8%
LIQUOR 25,982 25,909 -.3%
APPAREL 70,453 75,673 7.4%
SPORT 95,817 87,284 -8.9%
JEWELRY 26,849 24,062 -10.4%
GIFT ~ 13,609 ~ 12,095 ~ -11.1%
GALLERY 10,945. 11,231 2.6%
OTHER 73,164 84,945 16.1 %
HOME 932 400 -57.1 %
OCCUPATION
TOTAL 437,795 447,458 2.2%
MEMORANDUM
TO: Town Council
FROM: Community Development Department
DATE: September 18, 2007
SUBJECT: Request to proceed through the development review process with a proposal
to construct private improvements on Town of Vail owned East Meadow Drive
Right-of-Way.
Applicant: Solaris Property Owner,
Planning Group, LLC
Planner: Warren Campbell
I. DESCRIPTION OF THE REQUEST
LLC, represented by Mauriello
Request to proceed through the development review process with a proposal to
construct private improvements on Town of Vail owned property.
II. SUBJECT PROPERTY
The subject property is the Town of Vail owned East Meadow Drive Right-of-Way
located adjacent to the southwest corner of the Solaris development. 'The property is
not platted or zoned.
ill. BACKGROUND
It is the desire of the applicant to apply for a design review application to allow for the
construction of a portion of a set of stairs to access the southwest corner of the
Solaris development adjacent to the future bus stop along this portion of East
Meadow Drive: The proposed stairs are proposed to encroach approximately three
(3) feet into the right-of-way for a distance of approximately 14 feet and one and a
half (1.5) feet for a distance of approximately 13 feet, for a.total of approximately 62
square feet of improvements within the East Meadow Drive Right-of-Way owned by
the Town of Vail. The applicant must first obtain Town Council (i.e. property owner)
approval before proceeding through the Town's development review process. A
copy of the applicant's request (Attachment A) has been attached for reference.
The East Meadow Drive Right-of-Way is owned by the Town of Vail, and the Town
Council serves the role of the "property owner" for this right-of-way. Since the
applicant is proposing to construct improvements on Town of Vail property, the
applicant must first obtain the Town Council's (i.e. the "property owner's") permission
to proceed through the Town's development review process.
IV. STAFF RECOMMENDATION
The Community Development Department recommends the Town Council grant the
applicant permission to proceed through the development review process for locating
a portion of a set of stairs within the East Meadow Drive Right-of-Way.
Furthermore, if the Town Council feels this request is appropriate to grant, both the
Community Development Department and Public Works Department recomrn~end
that the Town Council directs the applicant to provide a public pedestrian easenent
for the stairs and the patio area at the top of the stairs that would be a part of the
easement to be granted for the Solaris public plaza. This requirement coulcl be
addressed in an amendment to the Crossroads Developer Agreement dated March
22, 2006.
The currently approved Crossroads Development Agreement, states the following in
regards to the area proposed to have stair encroachments into the right-of-way.
v. Bus Waiting Area: The public may use the portion of the southwest
corner of the Plaza and the stairs adjacent thereto (as shown on the F=inal
Plans), as a waiting area for the Town's in-town shuttle (the "Bus Waiting
Area').
Please be aware that an approval of this request does not constitute an explicit
approval of the proposed improvements; it only authorizes the applicants to proceed
through the Town's development review process.
V. ATTACHMENTS
A. Applicant's request dated September 11, 2007
1 I
Mauriello Planning Group
September 1 1, 2007
Vail Town Council
c/o Warren Campbell, Chief of Planning
75 S. Frontage Road
Vail, CO 81658
RE: Request to proceed through the process for improvements in the right~f--way
adjacent to Solaris
To Vail Town Council:
This letter is our official request to the Town Council in order to proceed through the
development review process due to some changes in the location of improvements
such as at-grade stairs within the public right-of-way. As we proceed into detailed
construction drawings and as we refine the public plaza and other public areas of the
site and adjacent to the site, we have found a more workable solution to certain
improvements. Town staff believes that since these changes include placing stairs
within the right-of-way that we obtain the Town Council's concurrence before making a
DRB application for the changes. We request that the Town Council approve this
request to proceed through the process.
The proposal will add stairs to the western end of the site in a location that was
previously and is proposed to be a bus stop area. The stairs extend approximately 3
feet into the right-of-way (maintaining 1 1 ft. of sidewalk between the curb and the first
stair) and act as a nice seating area for shoppers or those waiting for the Town's in-
town shuttle. The Solaris project was approved with many improvements (i.e., stairs,
landscape walls and planters, special paving materials) located within the right-of-way.
You may also recall that the area proposed for the stairs and the public plaza are to
be included in the Metro District and the General Improvement District for this property
and will therefore be maintained by these District's.
It is common for improvements of this sort to be located in the right-of-way in many
locations in the Town of Vail. Often there are grade changes between the entry to a
retail space and the adjacent road and this grade change is made up through the use
of stairs in the right-of-way. We are willing to sign the necessary agreements with
regard to the stairway in the case there is a need in the future to remove or rebuild
them. If it is necessary for the Town to do any improvements within the right-of-way
which could impact the stairs, Solaris will be responsible for the cost of removing and
reconstructing.
Sincerely,
Dominic Mauriello, AICP
Mauriello Planning Group, LLC
,2007
SOLARIS STAIRS AT BUS STOP I"= Id-d'
Juan Arguyes
Ashley Baker
Matthew Carroll
Devin Enos
Harvey Foos
Corie Gardner
Linda Glynn
Jordan Harris
Sarah Langston
Michelle May
Carrie Mease
Jesse Perez
Lance Reese
Johsie Reid
Rick Shock
Doreen Somers
Steve Trombetta
Stacy Webb
Craig Arford
Jebbie Browne
Jeff Corbet
Kevin Foley
Troy Goldberg
Baily Henson
Shannon Irish
Mike Kearl
Kerry Kuntz
Celeste Linker
Paul Lovelace
J.J. Mikels
Aleg Rebeiz
Joyce Rihanek
Eric Rust
Bryan Schnittgrund
Greg Smith
Steve Stainer
Josh Thompson
Josh Tukman
Destination Resorts
Vail Resorts
Double Diamond
Double Diamond
Lion Square Lodge
Vail Valley ENT
Vail Valley ENT
Lion Square Lodge
Vail Resorts
Lion Square Lodge
Lion Square Lodge
Vail Resorts
Vail Resorts
Wild Bill's
Lion Square Lodge
Vail Valley ENT
Vail Cascade
Landmark
Vail Ski Tech
Vail Resorts
Christiania
LiftHouse
Troy's. Ski Shop
Vail Resorts
Howard Head
Vail Resorts
Vail Resorts
Vail Resorts
Montaneros
Vail Ski Tech
Mountain Adv. Cntr.
Town of Vail Transit
Charter Sports
Vail Sports
Willows
Howard Head
Vail Resorts
Crossroads Market
Michael Van Valken- Troy's Ski Shop
burg
John Weiss Vail Resorts
Karen Carlson Vail Resorts
Stephen Devlin Vail Resorts
Lauren Elsberry Vail Resorts
Michael Feldman Vail Resorts
Wes Ferguson Vail Resorts
L.J. Josef Vail Resorts
Katie Lagasse Kemo Sabe
Karly Moore Holiday Inn
Ed Moulton Tivoli Lodge
Jamie Olsen Performance Spts.
Cheryl Peter Manrico Cashmere
Stephanie Pulkrabek Fur Club
Nikki Ramage Vail Resorts
Robyn Rowe Vail Resorts
Josh Tolles Vail Resorts
Sol Alonzo Small World
Bob Armour Vail Resorts
Jenny Baldwin Mountain Haus
Mark Christie Vail Information
Mark Frings Burton at Vail
Jonathan Gibbs Vail Sports
Josh Glover Eye Pieces of Vail
Emily Heaton Kelly Liken
Elise Martin Small World
Rich Matsunaka TOV Transit
Chris Rose Vail Marriott
3ryant Roth Campo de Fiori
sraeme Rowe TOV Transit
iabi Ruival Small World
)an Smallwood Eye Pieces of Vail
:risten Souvorin Antlers at Vail
Michael Spaid Austria Haus
ason Weister Market Computers
1
l
l
P
J
Premier Impressions Party Prize Winners
- Pair of Goggles from Eye Pieces: Josh Tukman, Crossroads Market
- " ": LJ Josef, Vail Resorts
- " ": John Weiss, Vail Resorts
- Crossroads Gift Basket: Josh Glover, Eye Pieces of Vail
- $25 Gift Certificate to West Side Cafe: Gabi Ruival, Small World Play School
- " ": Juan Arguyes, Destination Resorts
- One night stay at Lifthouse/$40 Gift Cert. to Bart & Yeti's: Kevin Foley,
Lifthouse Lodge.
- $50 Safeway Gift Cert.: Kerry Kuntz, Vail Resorts
- " ": Bryant Roth, Campo de Fiori
- Lunch for 2 @ Sweet Basil: Dan Smallwood, Eye Pieces of Vail
- " ": Elise Martin, Small World Play School
- $35 Gift Cert. to Bighorn Bistro: Cheryl Peter, Manrico Cashmere
- $25 Alpine Wine & Spirits: Doreen Somers, Vail Valley Ear, Nose & Throat
- $25 City Market: Jesse Perez, Vail Resorts
- 1 Round of Golf for 2 at Vail Golf Club: Jason Weister, Market Computers
- Half Day Spa Treatment from Heaven Massage & Spa: Wes Ferguson, Vail
Resorts
- Jeep Trip from Timberline Tours: Jordan Hams, LionSquare Lodge
- Gift Certificate from Flyfishing Outfitters: Ed Moulton, Tivoli Lodge
- Employer Merchant Ski Pass from Vail Resorts: Bill Hanlon, Wild Bill's
- Employee Merchant Ski Pass from Vail Resorts: Bryant Roth, Campo de Fiori
- All-inclusive trip for 2 to Mexico: Matt Carroll, Double Diamond
- $5,000 cash: divided evenly among 9 people
--Juan Arguyes, Destination Resorts
--Harvey Foos, Lion Square Lodge
--Michelle May: Lion Square Lodge
--Johsie Reid: Wild Bill's
--Karen Carlson: Vail Resorts
--Mark Frings: Burton
--Steve Trombetta: Vail Cascade
--Bob Armour: Vail Resorts
--Kevin Foley: Lifthouse Lodge
6G.i~ .O~ C,J S
Parking Rates 2007-2008
Existing Rates Proposed Rates
Duration Rate Duration Rate
0- 1 and 1/2 hour $0 0-1 and 1/2 hour $0
1 and 1/2 to 2 hour $4 1 and 1/2 to 2 hour $5.
2 to 3 hour $8 2 to 3 hour $g
3 to 4 hour $12 3 to 4 hour $13
4to5 $16 4to5 $17
5 plus $17 5 plus $18
Shopper Rates Shopper Rates
0- 2 hours $3 0- 2 hours $3
0- 3 hours $5 0- 3 hours $5
Passes Prices Pass Prices
Gold $2,050 Gold $2,100
Blue $825 Blue $875
Green $450 Green $500
Purple $400 Purple $500
Pink $50 Pink $100
Value Card Rates Value Card Rates
Non Peak Vail $6 Non Peak Vail $7
Peak Vail $12 Peak Period Vail $14
Non Peak Eagle $7 Non Peak Eagle County $10
Peak Eagle $14 Peak Eagle County $16
~r• ~8~ 07 ~5 ~~ # ~
Sale Signs Current Regulations Staff VEAC VCBA Board VCBA Special
Recommendation to Recommendations Recommendations Meeting with
PEC Business Owners
Location/Type Window sign or No Change No Change No Change . Ban signs that say
attached to outdoor "Liquidation" or "Going
dis la out of Business"
Number 1 er business No Chan a No Chan a No Chan a Unlimited
Size 1.5 sq ft No Change No Change No Change 4 sq ft/frontage
max 1.5 s ft/si n
Height No more than 10 ft No Change No Change No Change No change
above rade
Special Up to 7 sq ft extra Delete this provision Support a Business Delete this provision- Delete this provision
Provision allowed for 2 periods Promotion Special Does not support a Another option is to
of up to 15 days each Event Permit that business promotion include sale signs in
between Apr 1-Dec 1 would allow for special event permit total window sign
increased signage area, no other
restrictions
Outdoor Display Current Regulations Staff VEAC VCBA Board VCBA Special
Recommendation to Recommendations Recommendations Meeting with
PEC Business Owners
Location/Type On business' property Representative Representative No change Allow TOV land lease
Outdoor display: Sample Display. for businesses on a
Retail only, on own Excessive outdoor case-by-case basis
property unless arrangements of
leasing TOV adjacent inventory not
land ermitted.
Number No regulation Not regulated No change Summer: No change No change
Winter: Limit number
Size As much as you can fit 12 sq ft. Bike shops No excessive displays Summer: No change On your property in an
on your own property may be allowed more Winter: Come up with unlimited amount, plus
space at formula based on ability to use TOV land
Administrator's building frontage if no safety hazards
discretion.
Height No regulation No higher than 6 sq ft No change No change No change
from rade
Special Only in certain zone Permit required, Yearly permit process No permit required, No~change
Provisions districts (all retail cardboard boxes to display on public does not support
located in these prohibited, TOV land and private property leasing program
districts) lease program for
businesses without 12
s ft on own ro ert .
Menu Current Regulations Text Amendments VEAC VCBA Board VCBA Special
Boxes/Specials Proposed to PEC Recommendations Recommendations Meeting with
Boards 8/27/07 Business Owners
Location/Type Freestanding or Wall- Wall-mounted. No change Freestanding or wall- Wall-mounted or
rri~unteu but ~~ii.ist be Fre~standin^y only mounted allowed. freestanding. Can be
encased in glass when practical Menu box may have menu box, dry erase
difficulties exist. Dry attached dry erase or or chalk board. Does
erase or chalkboard chalk board, plus an not have to be
must be attached to unattached dry erase attached.
menu box. or chalk board Apr 15-
Nov 15.
Number One per business One per business One menu box and/or One per business Up to two per business
frontage with a public chalkboard for each frontage with a public frontage with a public
entrance public entrance. entrance, plus entrance, based on
Maximum of two per additional chalk or dry size.
frontage with two erase per entrance
primary public Apr 15- Nov 15
entrances.
Size 6 sq ft 6 sq ft each includes 6 sq ft each includes 6 sq ft each plus 9 sq ft total per
attached chalk or dry attached chalkboard additional 3 sq ft each business frontage with'
erase board frontage from Apr 15- a public entrance. No
Nov 15 for chalk or dry one sign/box larger
erase board to be than 6 sq ft
attached to building or
atio
Chalk Unclear if allowed Would be allowed Chalkboards only. No Allowed as attached to Allowed attached or
boards/Dry ONLY when attached dry erase. menu box. A stand- separate from menu
erase to menu box at alone additional 3 sq ft box. Counts as part of
restaurants, included of chalk or dry erase sq ft.
in total size board per frontage
Dry erase only in allowed Apr 15- Sept
black, chalk board only 15
in reen or black No color re uirements
Height Highest part not to No change No change No change No change.
exceed 6 ft from rade
~...
DEVELOPMENT COMPANY September 18, 2007
Timber Ridge Summary
Project Information:
• Purchase Price $22 Million.
Proposed maximum site build-out of 1,200 beds across three phases.
• Replacement of existing 600 Beds.
• 140 Beds required for ArraBelle, Vail's Front Door, and the Ritz-Carlton in Phase I.
• Site to be developed exclusively as affordable rental units.
Entitlements
• 1St submittal to TOV 11/15/2007.
• All approvals required to be received from TOV 2/1/2008.
• Submit for building permits 3/1/2008. (85% Construction Documents)
• Receive building permits 5/15/2008.
Proposed Project Design:
• Anticipate 4 story structure.
• Anticipate construction of 7 buildings.
• Building Height 42'-45'.
• Surface parking only.
• Steel/concrete construction with anticipated life cycle of 50 years.
• Anticipate each unit to contain 4 beds, 2 baths, kitchen, and living space.
• Each unit to be approximately 1,400 sf.
• Finish level imagery. (see attached exhibit)
• Laundry facilities, community rooms, and vending to be provided.
Anticipated Infrastructure to be included as part of the site development:
• Parking (surface parking)
• Retaining Walls
• Ingress/Egress
• Utilities
• Bus Stop
Construction:
• Anticipated Project Phasing.
-Phase I -Construct approximately 696 new beds while maintaining between 216 and 264 existing
beds.
-Phase II -Construct approximately 336 beds as needed, for Lionshead RFP, EverVail, and other
developments.
-Phase III -Construct the remaining 168 beds.
• Proposed Phase I Schedule
-Begin demolition 4/15/2008.
-Receive building permit 5/15/2008
-1St building (approximately 168 beds) delivered 6/15/2009
-Remaining buildings in Phase I completed by 10/15/2009
-1-
~.
...
~~_,.
-..;~kk-~s 4.,~,v,~~`
.r•-•°
~~ I
~ -- ~~
,. - _ ~
Bear Creek Apartments at Williams Village
M