HomeMy WebLinkAbout2005-13 Approving Parking Capital Investment Agreement with Vail Associates that relates to the Arrabelle at Vail Square DevelopmentRESOLUTION NO. 13
Series of 2005
A RESOLUTION APPROVING THE PARKING CAPITAL INVESTMENT
AGREEMENT BETWEEN THE TOWN OF VAIL (THE "TOWN") AND THE
VAIL CORPORATION, DB/A VAIL ASSOCIATES, INC., A COLORADO
CORPORATION ("VAIL ASSOCIATES"), WHICH AGREEMENT RELATES
TO THE ARRABELLE AT VAIL SQUARE DEVELOPMENT BY VAIL
ASSOCIATES
WHEREAS, the Town, acting through its applicable departments and agencies,
including the Planning and Environmental Commission and Design Review Board, has
previously approved design development plans proposed by Vail Associates for its intended
development of the "Arrabelle at Vail Square" mixed-use real estate project (the "Project"); and
WHEREAS, as part of and in conjunction with the Project, the Town and Vail
Associates have determined to make and enter into a "Parking Capital Investment Agreement"
whereby Vail Associates will make a capital investment of up to $4,300,000 for augmenting the
public parking supply in the Town of Vail (the "Agreement"), which Agreement will replace and
supercede the Parking Capital Investment Agreement dated November 8, 2004, made between
the parties and pertaining to the "Gore Creek Place" residential project; and
WHEREAS, the Town, acting through its a licable d artments and a enciesPp ~ g
including the Director of Public Works and the Director of Community Development), and Vail
Associates have negotiated terms and conditions for the Agreement; and
WHEREAS, the approval of the Agreement is necessary and proper for the health,
safety and welfare of the Town and its inhabitants; and
WHEREAS, the Agreement complies with all applicable laws and regulations of
the State of Colorado and the Town, and the Town has the authority to enter into the Agreement
pursuant to such laws.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO as follows:
Section 1.
The Agreement is hereby approved, and the Town shall enter into the Agreement and perform,
observe and discharge its obligations under the Agreement.. The Town Manager is hereby
authorized and directed to execute and deliver the Agreement, on behalf of the Town, with such
terms and provisions as the Town Manager, after consultation with the Town Attorney, considers
to be necessary or appropriate in furtherance of this Resolution.
Resolution No. 13, Series of 2005
Section 2_
The Town Council hereby finds, determines and declares that this Resolution is necessary and
proper for the health, safety and welfare of the Town of Vail and the inhabitants thereof.
INTRODUCED, READ, APPROVED AND ADOPTED this ~ ~ day of
Q , 2005.
Rodney Slifer,
Mayor, Town of Vail
A TEST:
orelei Donaldson,
Town Clerk, Town of Vail
Resolution No. 13, Series of 2005
Or1 O F ~V~
SEAL ,
oioaP°°~
2
AMENDED AND RESTATED
PARHING CAPITAL INVESTMENT AGREEMENT
THIS AMENDED AND RESTATED PARKING C,~~PITAL ESTMENT
AGREEMENT (this "Agreement") is made effective as of the ~ day of _ ~ ,
2005, by and between THE VAIL CORPORATION, D/B/A VAIL ASSOCI S, C., a
Colorado corporation ("Vail Associates"), and the TOWN OF VAIL, a municipal Corp ration
duly organized and existing under and by virtue of the laws of the State of Colorado (the
Town").
RECITALS
A. Vail Associates is the owner of certain real property in the Lionshead area
of the Town of Vail, Eagle County, Colorado, which is commonly referred to as the "Core" site
and which is legally described on Exhibit A attached hereto (the "Core Property"). Vail
Associates has secured approvals from the Town's Planning and Environmental Commission and
other Town agencies of certain design and development plans (the "Core Design AYr.,,vals") for
the development of a mixed-use real estate project, including hoteUlodge and residential
condominium uses and certain commercial, public and recreational uses, to be located within the
Core Property, and presently intended to be developed under the trade name "Arrabelle at Vail
Square" (the "Core Project").
B. The parties mutually acknowledge and agree that as a requisite part of and
as a remaining Town requirement far the rendering of the Core Design Approvals, and as a
condition to Vail Associates' right and ability to undertake the Core Project, Vail Associates
must undertake certain obligations to make a capital investment in additional public parking
facilities for the Town of Vail, which undertaking shall be in accordance with and subject to the
terms of this Agreement. But for the making of this Agreement, Vail Associates would not be
eligible to secure the remaining building permit and other construction approvals from the Town
that are requisite to proceeding with the Core Project. This devel~,r,~~ent requirement has arisen
in part because the parties have mutually determined, as a more appropriate allocation, to
attribute the parking capital investment undertaking to the Core Project in lieu of the Gore Creek
Project (as defined in the Original Agreement, which in turn is hereinafter defined). It is
mutually intended that Vail Associates' capital investment in this regard be applied efficiently to
maximize the resulting community benefit by the enhancement of public parking.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. Capital Investment in Parkin. Subject to the following terms and
conditions, Vail Associates agrees to make or cause the making of a capital investment in public
parking in the Town of Vail in the amount of $4,300,000 (the "Parking Investment"). This
obligation to make the Parking Investment will apply only (i) to the establishment of new
permanent public parking facilities in the Town that are owned by the Town and that act as an
increment to the inventory of public parking facilities presently available in the Town, or
alternatively (ii) to other means of augmenting the Town's public parking supply that may be
647291.2
acceptable to and approved in writing by Vail Associates in its discretion (the parking provided
under clause (i) or clause (ii), as applicable, being refereed to hereinafter as the "Requisite
Parking Increment"). If the Town is to provide the Requisite Pazking Increment pursuant to new
permanent facilities under clause (i) above, then the schematic design plans therefor (the
Parking Plans"} will be subject to the prior written approval of Vail Associates, not to be
unreasonably withheld. Vail Associates agrees that it will fund the Pazking Investment in hand
to the Town within thirty (30) days after satisfaction of the following conditions, with such
satisfaction to be reasonably substantiated to Vail Associates:
a) The Town has entered into bona fide binding construction
contracts or other agreements, made on anarm's-length basis with third parties, for the
provision of the Requisite Pazking Increment in accordance with the approved Parking
Plans;
b) Those applicable construction contracts or agreements expressly
establish payment and funding obligations of the Town (the "Project Costs") in
furtherance of providing the Requisite Pazking Increment in amounts that on their face
equal or exceed $4,300,000; and
c) On-site construction or other work for furnishing the Requisite
Parking Increment (the "Parking Project") has actually been commenced ("Project
Commencement").
Vail Associates' obligations hereunder are not conditioned upon its actual undertaking of the
Core Project.
2. Diluent Completion. Following the Project C.,Y..:..encement and the
funding of the Parking Investment, the Town will cause the Parking Project to be diligently
prosecuted and completed in accordance with the approved Parking Plans and the governing
construction contracts or agreements, such that it maybe lawfully used for its intended purposes.
3. Remedies. This Agreement maybe enforced by any remedies available at
law or equity, including, without limitation, the recovery of damages and, where appropriate,
injunctive relief to compel performance. All remedies shall be cumulative with and non-
exclusive of one another, and may be pursued successively or concurrently, and the exercise of
any one remedy shall not be construed as an election to the bar of any other remedy. However,
neither party shall be entitled to recover lost profits, or consequential or punitive damages.
4. Notices: Business Davs. 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
647291.2 2
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:
c/o Vail Resorts Development Company
Post Office Box 959
137 Benchmark Road
Avon, Colorado 81620
Attention: Jack Hunn, Vice President of Design and Construction
Fax No.: (970) 845-2555
Phone: (970) 845-2359
with a co~v to:
c/o Vail Resorts Development Company
Legal Department
Post Office Box 959
137 Benchmark Road
Avon, Colorado 81620
Attention: Karsten Canada, Esq.
Fax No.: (970) 845-2555
If to Town:
Town of Vail
75 S. Frontage Road
Vail, Colorado 81657
Attention: Town Manager
Fax No.: (970) 479-2157
with a conv to:
Town of Vail
75 S. Frontage Road
Vail,. Colorado 81657
Attention: Town Attorney
Fax No.: (970) 479-2157
Either 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. As used herein, the term "business day"
shall mean any day other than a Saturday, a Sunday, or a legal holiday for which U.S. mail
service is not provided. Whenever any date or the expiration of any period specified under this
Agreement falls on a day other than a business day, then such date or period shall be deemed
extended to the next succeeding business day thereafter.
64'29 L2
5. Severabilitv. In the event any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future laws, the legality, validity and
enforceability of the remaining provisions in this Agreement shall not be affected thereby, and in
lieu of the affected provision there shall be deemed added to this Agreement a substitute
provision that is legal, valid and enforceable and that is as similar as possible in content to the
affected provision. It is generally intended by the parties that this Agreement and its separate
provisions be enforceable to the fullest extent permitted by law.
6. Entire Agreement. This Agreement and the other contracts or agreements
specifically referred to herein represent the entire agreement between the parties hereto with
respect to the subject matter hereof, and all prior or extrinsic agreements, understandings or
negotiations shall be deemed merged herein; without limitation on the generality of the
foregoing, this Agreement shall supercede and reinstate in its entirety the Parking Capital
Investment Agreement dated as of November 8, 2004, between Vail Associates and the Town
the "Original Agreement"), which is hereby terminated and of no further force or effect.
7. Rules of Construction. The headings which appear in this Agreement are
for purposes of convenience and reference and aze not in any sense to be construed as modifying
the paragraphs in which they appear. Each party hereto acknowledges that it has had full and fair
opportunity to review, make comment upon, and negotiate the terms and provisions of this
Agreement, and if there arise any ambiguities in the provisions hereof or any other circumstances
which necessitate judicial interpretation of such provisions, the parties mutually agree that the
provisions shall not be construed against the drafting party, and waive any rule of law which
would otherwise require interpretation or construction against the interests of the drafting party.
References herein to the singular shall include the plural, and to the plural shall include the
singular, and any reference to any one gender shall be deemed to include and be applicable to all
genders. The titles of the pazagraphs in this Agreement are for convenience of reference only
and are not intended in any way to define, limit or prescribe the scope or intent of this
Agreement.
8. Town Council Annroval. This Agreement shall not become effective until
the Town Council's adoption and approval of this Agreement by resolution. As part of that
resolution, the Town Council will designate and authorize the Town Manager to execute and
deliver this Agreement on behalf of the Town. The effective date of this Agreement shall be the
date upon which this Agreement has been executed and delivered by Vail Associates and so
executed as set forth above by the Town Manager.
9. Waivers and Amendments. No provision of this Agreement may be
waived to any extent unless and except to the extent the waiver is specifically set forth in a
written instrument executed by the party to be bound thereby. No modification or amendment to
this Agreement shall have any force or effect unless embodied in an amendatory or other
agreement executed by Vail Associates and the Town, with the Town's execution to be
authorized by Town Council ordinance or resolution, as applicable. However, if, on behalf of
the Town, the Town Manager, after consultation with the Director of Community Development,
determines that any proposed amendment or modification constitutes a minor change, then the
Town Manager shall have the unilateral power and authority to execute and deliver such
amendment or modification on behalf of the Town and to bind the Town thereby. In any event
sane t.z 4
the Town Manager will have the unilateral power and authority to furnish any estoppel
certificates, approvals, confirmations of whole or partial termination, or other documents or
communications contemplated by the provisions of this Agreement.
10. Governine Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
11. Additional Assurances. The parties agree to reasonably cooperate to
execute any additional documents and to take any additional action as may be reasonably
necessary to carry out the purposes of this Agreement.
12. No Third Party Beneficiary. Except for the corporate affiliates of Vail
Associates, who are expressly intended to be third-party beneficiaries of Vail Associates' rights
hereunder, no third party is intended to or shall be a beneficiary of this Agreement, nor shall any
such third party have any rights to enforce this Agreement in any respect.
13. Counteroarts. This Agreement may be executed in counterparts, each of
which shall constitute an original, and which together shall constitute one and the same
agreement.
14. Successors and Assisns. This Agreement shall be binding upon and inure
to the benefit of Vail Associates and the Town and their respective successors and assigns. This
Agreement shall not run with the land as a burden to the ownership of the Core Property.
15. No Joint Venture or Partnership. No form of joint venture or partnership
exists between the Town and Vail Associates, and nothing contained in this Agreement shall be
construed as malting the Town and Vail Associates joint venturers or partners.
16. Attorneys' Fees. In the event any legal proceeding arises out of the
subject matter of this Agreement and is prosecuted to final judgment, the prevailing party shall
be entitled to recover from the other all of the prevailing party's costs and expenses incurred in
connection therewith, including reasonable attorneys' fees (and the presiding court will be bound
to make this award).
Balance of page intentionally left blank]
ba~29i.z 5
IN WITNESS WHEREOF, the Town and Vail Associates have made this Parking
Capital Investment Agreement as of the day, month and year first above written.
Town:
TOWN OF VAIL, a municipal corporation duly
t~ OF. V;4~1 organized and existing by virtue of the laws of the
State of Colorado
L'A '5 '
Name: Stan Zemler
Title: Town Manager
A~_i~ST:
g~lei Donaldson, Town Clerk
Signature blocks continue on following page]
64729L2 6
VAIL ASSOCIATES:
THE VAIL CORPORATION D/B/A VAIL
ASSOCIATES, INC., a Colorado corporation
By:
Name:
Title:
647291.2
EXHIBIT A
Legal Description of Core Property
Lot 4, Block 1, and Tract D, VaiULionshead First Filing, according to the plat recorded May 10,
1970, in Book 217 at Page 675;
Tract C, VaiULionshead First Filing, according to the plat recorded May 10, 1970, in Book 217
at Page 675, but excluding therefrom those portions conveyed to the Town of Vail in deeds
recorded in Book 560 at Page 180 and in Book 389 at Page 502; together with any further
portions of said Tract C hereafter acquired of record by Vail Associates;
Tract C, VaiULionshead Third Filing, according to the plat recorded October 15, 1971, in
Book 221 at Page 992, but excluding therefrom that portion conveyed to the Town of Vail in
deed recorded in Book 560 at Page 180, and excepting portions thereof included within Concert
Hall Plaza Condominiums according to the Condominium Map recorded in Book 286 at
Page 698; together with any further portions of said Tract C hereafter acquired of record by Vail
Associates; and
Lot 2, Block 1, Tract G and Tract H, VaiULionshead Third Filing, according to the plat recorded
October 15, 1971 in Book 221 at Page 992;
County of Eagle,
State of Colorado.
647?91.? A-1