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HomeMy WebLinkAbout2007-29 Enter into an Agreement with Vail Corporation Regarding Employee Housing Obligations in Connection with the Arrabelle ProjectRESOLUTION N0.29 Series of 2007 A RESOLUTION AUTHORIZING THE TOWN OF VAIL TO ENTER INTO AN AGREEMENT WITH THE VAIL CORPORATION REGARDING EMPLOYEE HOUSING OBLIGATIONS IN CONNECTION WITH THE ARRABELLE PROJECT. WHEREAS, Vail Associates, the Town and the Vail Reinvestment Authority (the "Authority"), entered into the Core Site Development Agreement, dated as of November 8, 2004. and WHEREAS, Paragraph 12 of the Core Site Development Agreement obligated Vail Associates to provide replacement employee housing for the Sunbird Lodge and incremental employee housing for additional development in the Lionshead area of the Town of Vail the Core Employee Housing Requirements"); and WHEREAS, the Core Employee Housing Requirements have been determined to be equivalent to 120 employee housing beds; and WHEREAS, Paragraph 12 of the Core Site Development provides that provision of the Core Employee Housing Requirements shall be a condition to the issuance of any certificate of occupancy for the Core Site Project (now known as "Arrabelle Project"); and WHEREAS, the Arrabelle Project is nearing completion and the Vail Corporation anticipates applying for a temporary certificate of occupancy in the near future; and WHEREAS, the Town and the Vail Corporation differ on the interpretation of Paragraph 12 of the Core Site Development Agreement and on whether the Vail Corporation is in compliance with the terms of Paragraph 12; WHEREAS, the Town and the Vail Corporation have agreed to amend the Core Site Development Agreement so as to allow the Arrabelle Project to receive a temporary certificate of occupancy while assuring the Town that the Vail Corporation will provide the employee housing required by the Core Site Development Agreement. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: 1.Paragraph 12 of the Core Site Development Agreement shall be amended as provided in the Core Site Employee Housing Agreement attached hereto. Resolution No. 29, Series 2007 2.The Town Manager is hereby authorized to sign the Core Site Employee Housing Agreement in substantially the same form as attached hereto. 3.This resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Vail held this 11th day of December, 2007. Dick Cleve d Mayor of the Town of Vail, Colorado ATT~T: a Lgr~elei Donaldson, Town Clerk L~L ~ s coRt~ Resolution No. 29, Series 2007 CORE SITE EMPLOYEE HOUSING AGREEMENT THIS CORE SITE EMPLOYEE HOUSING AGREEMENT ("Agreement") is made as of the day of 2007, by and between the TOWN OF VAIL, a municipal corporation duly organized and existing under and by the Vail Town Charter (the "Town"), and THE VA1L CORPORATION d/b/a VAIL ASSOCIATES, INC., a Colorado corporation ("Vail Associates"). Recitals: A.Vail Associates, the Town and the Vail Reinvestment Authority (the "Authority"), entered into the Core Site Development Agreement, dated as of November 8, 2004. Initially capitalized terms used but not defined herein shall have the meanings given them under the Core Site Development Agreement. B.All obligations of the Authority and obligations owed to the Authority have been satisfied and the Authority is not a necessary party to this Agreement (as confirmed by the Authority by its execution at the end hereof). C.Paragraph 12 of the Core Site Development Agreement obligated Vail Associates to provide replacement employee housing for the Sunbird Lodge and incremental employee housing for additional development in the Lionshead area of the Town of Vail. The obligation for employee housing is referred to in the Core Site Development Agreement as the "Core Employee Housing Requirements." D.The Core Employee Housing Requirements have been determined to be equivalent to 120 employee housing beds (and the foregoing will be part of the parties' agreement hereunder). E.Paragraph 12 of the Core Site Development provides that provision of the Core Employee Housing Requirements shall be a condition to the issuance of any certificate of occupancy for the Core Site Project (now known as "Arrabelle Project"), and that Vail Associates could provide the employee housing on an interim basis for a period of five years. F.The Arrabelle Project is nearing completion and Vail Associates anticipates applying for a temporary certificate of occupancy in the near future. G.The parties differ on the interpretation of Paragraph 12 of the Core Site Development Agreement and on whether Vail Associates is in compliance with the terms of Paragraph 12. H.In order to resolve the differences between the parties and to avoid litigation, the parties now enter into this Agreement to insure that Vail Associates satisfies the Core Employee Housing Requirements in a timely manner and that necessary certificates of occupancy are issued for the Arrabelle Project. Agreement: NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements set forth herein, the parties covenant and agree as follows: 1.Vail Associates shalt post an irrevocable letter of credit in the amount of 17,345,789 (the "Letter of Credit"), in a form satisfactory to the Town, with Land Title Guarantee Company to secure the Core Employee Housing Requirements. 2.The amount of the Letter of Credit shall be adjusted on April 1, 2008, and each April 1 thereafter, to an amount consistent with the rates set by the Town Council by resolution for payment of fees in lieu as required by Section 12-23-6 and Section 12-24-6, Vail Town Code Chapters 12-23 and 12-24 of the Vail Town Code being referred to hereinafter as the "New Housing Ordinances"). 3.Upon posting of the Letter of Credit, the Core Employee Housing Requirements shall no longer act as a condition to the issuance of a temporary certificate of occupancy for the Arrabelle Project. 4.Vail Associates shall use its best efforts to submit or cause to be submitted to the Town, by February 25, 2008, a complete development review application for a project or projects in the Town of Vail, which proposals shall include not less than 120 newly constructed employee housing beds to comply with the Core Employee Housing Requirements (provided the Town may not require more than 120 beds in the aggregate in relation to the Arrabelle Project), but may be part of larger mixed use development(s) on the North Day Lot and/or alternative location(s) in the Lionshead Master Plan Area or other location approved by the Town collectively the "North Day Lot and/or Alternative Project"). The Town acknowledges and agrees that the North Day Lot and/or Alternative Project may involve direct or indirect ownership interests in favor of Vail Associates (or its affiliates) and/or third parties. The Town shall consider and process the review of such application promptly and in good faith, subject to the application being in compliance with the Vail Town Code, and by reasonable application of the Town's adopted development review requirements that are applicable to the particular site(s) the "Review Standards"). 5.Vail Associates may amend or alter any North Day Lot and/or Alternative Project development application, or withdraw any such application from consideration by the Town and submit a new application, subject to its obligations in Section 6. 6.Vail Associates and/or any third party developers shall obtain approval of the development review application for the North Day Lot and/or Alternative Project on or before November 5, 2008 and the Town shall work in good faith to provide any approvals by such date for a timely filed application, all in accordance with the Review Standards. 7.Vail Associates and/or such other third party developer shall obtain a building permit for the construction of the North Day Lot and/or Alternative Project and shall commence construction of a North Day Lot and/or Alternative Project no later than May 1, 2009 (subject to extension as hereinafter provided), and shall actively prosecute construction of the North Day Lot and/or Alternative Project pursuant to a ,building permit for the construction of the North neieoea: atr~~ a j 2 Day Lot and/or Alternative Project and shall to completion. Upon issuance of a temporary certificate of occupancy for the North Day Lot and/or Alternative Project, the Letter of Credit shall be promptly returned to Vail Associates and Vail Associates shall be deemed to have satisfied the Core Site Employee Housing Requirements. 8.Any employee housing units provided pursuant to this Agreement shall be permanently restricted by provisions incorporated into the deed or other instrument. Such provisions shall be in accordance with Town Code and the deed, as restricted, or other instrument shall be recorded in the records of the Clerk and Recorder of Eagle County. 9.Breach by Vail Associates. A "breach" or default" by Vail Associates under this Agreement shall be defined as: (i) the failure of Vail Associates no later than November 5, 2008, to obtain from the Town a complete development review approval for the North Day Lot and/or Alternative Project; (ii) the failure of Vail Associates, by no later than November 5, 2008, to obtain from the Colorado Department of Transportation (CDOT), if necessary, ali necessary approvals by CDOT for the North Day Lot and/or Alternative Project; (iii) the failure of Vail Associates to obtain a building permit for the construction of the North Day Lot and/or Alternative Project and shall commence construction of the North Day Lot and/or or Alternative Project on or before May 1, 2009 (unless this date is extended as hereinafter set forth) or (iv) any failure by Vail Associates to actively pursue construction of the North Day Lot and/or Alternative Project pursuant. to a ~ building permit for the construction of the North Day Lot eietad: obtama and/or Alternative Project once construction has commenced. 10. Breach by the Town. A "breach" or "default" by the Town under this Agreement shall be defined as follows: i) failure by the Town to timely, diligently and in good faith consider and process the development review application for the North Day Lot and/or Alternative Project in accordance with the Review Standards, or (ii) failure of the Town to issue building permits or other requisite approvals for construction if proper application is made therefor under Town Code based on construction documents that conform to the approved development plan. 11. Mandatory Mediation. In the event a Notice of Breach is given by either party, the parties shall retain the services of a mediator, acceptable to both parties, within 15 days of the receipt of the Notice of Breach. In the event the parties are unable to agree on a mediator, the parties may exercise any remedy provided herein. The parties shall engage in mediation for a period not to exceed sixty (60) days from the date of retention of a mediator. Neither party may exercise its Remedy provided for in Paragraphs 12 and 13 below until the completion of the period for mediation. Either party may also cure any default during the mediation period. 12. Remedies for Breach by Vail Associates. The sole and exclusive remedy of the Town for a breach or default by Vail Associates shall be to draw on the Letter of Credit. Any proceeds that the Town may retain shall be applied solely to the Town's procurement in good faith of employee housing units in accordance with Town Code and to the end of furnishing the requisite 120 beds. 13. Remedies for Breach by the Town. The sole and exclusive remedy of Vail Associates for breach by the Town shall be for an extension of the required date for Vail 3 Associates to begin construction of the North Day Lot and/or Alternative Project (i) for a period of six (6) months from May 1, 2009, or (ii) the date upon which the breach by the Town ceases whichever is later). 14. Notices. Any notice required or permitted under the terms of this Agreement shall be in writing, may be given by the parties hereto or such parties' respective legal counsel, and shall be deemed given and received (i) when hand delivered to the intended recipient, by whatever means; (ii) three (3) business days after the same is deposited in the United States mails, with adequate postage prepaid, and sent by registered or certified mail, with return receipt requested; (iii) one (1) business day after the same is deposited with an overnight courier service of national or international reputation having a delivery area encompassing the address of the intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the intended recipient's facsimile facilities accessed by the applicable telephone number set forth below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the noticing party). Any notice under clause (i), (ii) or (iii) above shall be delivered or mailed, as the case may be, to the appropriate address set forth below. If to Vail Associates: Vail Corporation c/o Vail Resorts Development Company Post Office Box 959 137 Benchmark Road Avon, Colorado 81620 Attention: Keith Fernandez, President Fax No.: (970) 845-2555 Phone: (970) 845-2359 If to the Town or the Authority: Town of Vail Stanley Zemler, Town Manager 75 South Frontage Road Vail, Colorado 81657 Phone: (970) 479-2105 Fax No.: (970) 479-2452 Any party may change its addresses and/or fax numbers for notices pursuant to a written notice which is given in accordance with the terms hereof. 15. Attornevs' Fees. In the event any legal proceeding arises out of this Agreement and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and any presiding court will be bound to make this award). 16. Waiver. No failure by either 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 4 such or any other covenant, agreement, term or condition. Either party by giving notice to the other party 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 other covenant, agreement, term and condition of this Agreement will continue in full force and effect with respect to any other then existing or subsequent breach. 17. Annlicable Law. The laws of the State of Colorado will govern the interpretation and enforcement of this Agreement. 18. Bindine Effect. This Agreement will be binding on and inure to the benefit of the parties hereto, and their successors and assigns. 19. Time of Essence. Time is of the essence of this Agreement. The parties will make every reasonable effort to expedite the subject matters hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation. 20. Counteroarts. This Agreement may be executed in counterparts, each of which will be an original and all of which will constitute one and the same instrument. 21. 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. 22. Entire Agreement. This Agreement represents the entire agreement between the parties hereto with respect to the subject matter hereof, and all prior or extrinsic agreements, undertakings or negotiations shall be deemed merged herein, superseded hereby, and of no force or effect, and the parties mutually acknowledge and agree that Paragraph 12 of the Core Site Development Agreement is superseded and terminated. Balance of page intentionally left blank] 5 IN WITNESS WHEREOF, Vail Associates, the Town and the Authority have made this Agreement as of the day, month and year first above written. VAIL REINVESTMENT AUTHORITY By: Name: Title: STATE OF COLORADO ss: COUNTY OF The foregoing instrument was acknowledged before me this day of 2007, by as of Vail Reinvestment Authority. Witness my hand and official seal. My commission expires: Notary Public Signature blocks continue on following page] TOWN OF VAIL By: Name: Title: ATTEST: Lorelei Donaldson, Town Clerk STATE OF COLORADO ss: COUNTY OF The foregoing instrument was acknowledged before me this day of 2007, by as of the Town of Vail. Witness my hand and official seal. My commission expires: Notary Public Signature blocks continue on following page] THE VAIL CORPORATION, d/b/a VAIL ASSOCIATES, INC., a Colorado corporation By: Keith Fernandez, President and COO-VRDC STATE OF COLORADO ss: COUNTY OF The foregoing instrument was acknowledged before me this day of 2007, by Keith Fernandez, President and COO-VRDC of The Vail Corporation, d/b/a Vail Associates, Inc., a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public