HomeMy WebLinkAboutDOCS-470484-v2-P3 & J FINAL VERSION.DOCP 3 Reinvestment Agreement
THIS P 3 REINVESTMENT AGREEMENT (“Agreement”) is made as of the ____ day of ______________, 2004, by and between VAIL REINVESTMENT AUTHORITY, a body corporate duly organized and existing
as an urban renewal authority under the laws of the State of Colorado (the “Authority”), and VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation (together with successors and assigns,
“Vail Holdings”).
Recitals:
The Authority is a body corporate and has been duly created, organized, established and authorized to exercise its powers as an urban renewal authority within the Town of Vail, Colorado
(“Town”), all under and pursuant to the Colorado Urban Renewal Law, C.R.S. § 31 25 101 et seq. (the “Act”).
An urban renewal plan, entitled the “P 3&J Reinvestment Plan,” was duly and regularly approved by the Town Council of the Town pursuant to a hearing held and action taken by Resolution
No. 12, Series of 2004, on March 16, 2004 (as from time to time amended in accordance with the Act, the “Plan”).
The Plan authorizes actions by the Authority in furtherance of the redevelopment of the site owned by Vail Holdings and legally described as Lot P 3, according to the recorded subdivision
plat entitled “Lot P3, Vail Village Fifth Filing,” County of Eagle, State of Colorado (said Lot P 3 being hereby defined as the “Property”).
Vail Holdings is proposing to redevelop the Property as a subterranean parking garage facility, complemented by paved surface parking and an adjacent open space/park area (the “Project”),
and has secured certain of, and is in the process of securing the remainder of, the various development approvals from the Town that are requisite to undertaking the Project. However,
the Property is encumbered by certain use restrictions and other limitations arising under (i) the Protective Covenants for Vail Village, First Filing, as originally recorded in the
real property records for Eagle County, Colorado (the “Records”) on August 10, 1962, in Book 174 at Page 179, and as subsequently amended, and (ii) the Protective Covenants for Vail
Village, Fifth Filing, as originally recorded in the Records on November 5, 1965, in Book 187 at Page 353, and as subsequently amended (collectively, the “Covenants”). The Covenants
contain use restrictions and other limiting provisions that may proscribe or conflict with the development of the Project or on the Property, or its use and enjoyment for its intended
purposes.
Pursuant to the Plan and the Act, the Authority has the power of eminent domain to acquire and convey to Vail Holdings, or another qualified purchaser, the Property at fair value. In
furtherance of the Plan, the Authority intends to exercise its eminent domain powers, to acquire the Property for purposes of extinguishing and removing those Covenants, which obstruct
the redevelopment of theProject.
Under the terms of the Plan, the Authority may exercise its powers of eminent domain only with the consent of the owner of any fee interest to be condemned, which in this case is Vail
Holdings as the fee owner of the Property. Vail Holdings has determined to provide its consent.
NOW, THEREFORE, in consideration of the above premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
Authority’s Acquisition Efforts.
The Authority will offer to purchase the unencumbered fee interest, free of all covenants and restrictions, in the Property from Vail Holdings for a total compensation of $3,500,000
(“Purchase Price”). In the event that Vail Holdings rejects the Authority’s offer or is unable to convey unencumbered fee title free of all covenants and restrictions, the Authority
will commence an eminent domain proceeding in the Eagle County District Court to acquire the Property (“Eminent Domain Proceeding”) and will prosecute the proceeding to completion using
all good faith efforts. The Authority will use good faith efforts to commence any such Eminent Domain Proceedings by not later than April 7, 2004 and to obtain an order vesting title
to the Property in the Authority subject to the existing parking easement encumbering the Property granted by instrument recorded July 10, 1963, in Book 177 at Page 127, as such easement
may be affected by an agreement recorded June 5, 1968, in Book 212, at Page 877, and by historical practices (the “Parking Easement”).
Nothing in this Agreement will be construed as prohibiting or infringing upon the Authority’s ability to exercise its lawful power of eminent domain.
The Authority shall not request or receive a final order in the Eminent Domain Proceeding vesting title to the Property prior to the selection of a Respondent pursuant to the Resale
Procedure in Section 4 below.
Disclaimer. The Authority makes no representation or warranty that it will prevail in the Proceedings; provided, however, that nothing in this paragraph will negate or impair the Authority’s
obligations under the other provisions of this Agreement in connection with the Eminent Domain Proceeding. Notwithstanding any other provision of this Agreement to the contrary, Vail
Holdings will not be liable to the Authority or any other party for any Eminent Domain Costs (defined below) or any other costs, expenses, judgments, damages or liabilities arising from
any act, omission or conduct of the Authority which is in violation of the Authority’s obligations under this Agreement.
Stipulation of Credit. In the Eminent Domain Proceeding, Vail Holdings and the Authority will mutually stipulate to the District Court that Vail Holdings, by virtue of this Agreement,
is receiving adequate credit and protection from the Authority for securing the payment to Vail Holdings of any compensation adjudicated in favor of Vail Holdings in the Eminent Domain
Proceeding, and, as necessary, will correspondingly waive rights to receive that adjudicated compensation from the District Court pursuant to C.R.S. § 38 1 112, provided the payment
of the same into the District Court is not required. If, notwithstanding such stipulation, the District Court requires that such compensation be deposited in its registry, then Vail
Holdings will pay the same as part of the Eminent Domain Costs (hereinafter defined). The parties will also stipulate in the Eminent Domain Proceeding that the fair market value of
the Property equals the Purchase Price for purposes of avoiding any need for appraisals.
Resale Procedure. Upon initiation of the Eminent Domain Proceeding, the Authority will forthwith, pursuant to C.R.S. § 31 25 106(2), invite proposals for the acquisition and redevelopment
of the Property, which proposals must be submitted within two (2) weeks after the initial publication of the invitation, and promptly make a determination of a qualified proposal that
it will accept. In order to qualify for acceptance and approval of the Authority, any responsive proposal must demonstrate that the party responding as the proposed purchaser (the “Respondent”)
satisfies the following conditions (the “Qualification Conditions”):
The Respondent (by itself of together with its affiliates) must have first class experience and expertise in developing and operating premier ski resorts and associated hotel/lodging
accommodations and real estate developments in the State of Colorado, and especially in the Vail Valley.
The Respondent and/or its affiliates maintain significant business ties in the Town of Vail, including an active ongoing business that is not limited to real property ownership, development
and/or management, and owns other development projects or sites within the Town.
The Respondent has prepared and submitted to the Town, by the date specified for delivery of proposals, a site plan, detailed and comprehensive architectural renderings, design drawings,
and engineering, drainage, landscaping and other development plans governing a proposed development project on the Property (collectively “Plans”), which Plans must satisfy all applicable
development application and submission standards and requirements of the Town, must conform to existing zoning for the Property, and must be sufficiently complete on their face such
that the Town, under its prevailing regulations, practices and procedures, could accept and adopt the Plans as a final plan approval.
If the Respondent selected is other than Vail Holdings, then the Respondent, as part of its proposal, must contemporaneously deposit with the Authority an amount in cash equal to $3,500,000,
which the Authority hereby stipulates and agrees is the fair value of the Property, and which will constitute the required acquisition price under any proposal from any Respondent that
the Authority proposes to accept (the “Purchase Price”). As compensation for its ownership interests in the Property, Vail Holdings, as a Respondent, will receive full credit for such
Purchase Price, and if a proposal from a third party Respondent is accepted, the resulting Purchase Price thus paid by the thirdparty Respondent will be immediately remitted to Vail
Holdings by the Authority upon acceptance of the thirdparty proposal.
In no event may the Authority convey the Property, or any interest therein, to any third party Respondent unless the requisite Purchase Price is paid in cash to Vail Holdings as set
forth above. The Authority also acknowledges and agrees that Vail Holdings satisfies all of the Qualification Conditions under paragraphs (a) through (c) above, inclusive.
Eminent Domain Costs. Vail Holdings will reimburse the Authority for all reasonable costs and expenses incurred by the Authority during the term of this Agreement in the Eminent Domain
Proceeding, including attorneys’ fees, court fees and charges, travel costs, reimbursable respondent costs (if any), and any amounts required to be deposited with the District Court
(collectively “Eminent Domain Costs”). Such reimbursement will be made by Vail Holdings within thirty (30) days after receipt of an invoice therefor from the Authority, which invoice
must be supported by paid receipts and other documentation reasonably substantiating the applicable sums incurred and subject to reimbursement. However, in the case of any amounts required
to be deposited with the District Court in connection with the Eminent Domain Proceeding, Vail Holdings will make such reimbursement within any shorter period of time that such deposit
is required by the District Court. Notwithstanding any implications to the contrary in the foregoing provisions, Vail Holdings will not be obligated to reimburse, and will not have
any liability for, any Eminent Domain Costs which are incurred by the Authority as a result of or in connection with any violation of the Authority’s obligations under this Agreement.
Consent. As required by the Plan, Vail Holdings hereby consents to the condemnation by the Authority of Vail Holdings’ fee interest in the Property. Upon any termination of this Agreement
at Vail Holdings’ election, this consent will become null and void.
Rejection of Vail Holdings. If a third party other than Vail Holdings is accepted by the Authority as the successful Respondent pursuant to paragraph (4) above, the Authority will,
within thirty (30) days after such acceptance, reimburse Vail Holdings for all monies previously advanced by Vail Holdings under this Agreement, including, without limitation, the Eminent
Domain Costs and any and all amounts deposited with the District Court (except to the extent those deposited amounts are remitted directly to Vail Holdings), together with interest on
all such amounts from the date advanced by Vail Holdings to the date reimbursed by the Authority at the prime rate of interest then in effect, as announced from time to time by the Wall
Street Journal, plus 2% per annum.
Condition of Title. If Vail Holdings is accepted by the Authority as the successful Respondent pursuant to paragraph (4) above, the Authority will provide to Vail Holdings, at Vail
Holdings’ expense, a current title insurance commitment for insuring title to the Property in Vail Holdings (the “Title Commitment”), to be issued by Land Title Guarantee Company, from
its offices in Vail, Colorado, and on its own behalf and as agent for Chicago Title Insurance Company (the “Title Company”). The Title Commitment will provide for insurance in the amount
of the Purchase Price set forth in this Agreement and will commit the Title Company to issue a 1992 extended coverage ALTA Owner’s Title Policy in favor of Vail Holdings as the insured,
subject only to general real property taxes not yet due and payable, the Parking Easement and any other title matters within the “Permitted Exceptions” hereinafter defined (the “Title
Policy”).
Closing. If Vail Holdings is accepted by the Authority as the successful Respondent pursuant to paragraph (4) above, then the Authority and Vail Holdings will proceed to conduct a closing
for Vail Holdings’ acquisition of the Property from the Authority on a mutually agreeable date not more than ten (10) days after the Authority’s acceptance of Vail Holdings as the successful
Respondent (the “Closing”). The Closing will be conducted through the Title Company, at its Vail, Colorado office. The Title Company will furnish all requisite closing and escrow services
for the completion of the Closing, and all required Closing deliveries will be made by depositing the same with the Title Company. At Closing, the following will occur, each being a
condition precedent to the others and all being considered as occurring simultaneously:
The Authority will duly execute, acknowledge and deliver a special warranty deed conveying the Property to Vail Holdings, with a warranty of title that the Property is free and clear
of any liens, encumbrances or other title matters arising by, through or under the Authority, subject only to covenant conditions acceptable to Vail Holdings, if any, and to the Parking
Easement, (the title matters and exceptions then affecting the Property that will not cause a breach of such warranty of title are sometimes referred to herein as the “Permitted Exceptions”
and are enumerated in Exhibit 1 attached hereto and incorporated herein).
Vail Holdings will receive full credit for the Purchase Price, as set forth in paragraph 4(d) above, and will not be required to pay the Purchase Price to the Authority. Any prior deposit
by Vail Holdings into the registry of the District Court of the compensation owing to Vail Holdings in connection with the Eminent Domain Proceeding, as set forth in paragraph 3 above,
will be and remain payable solely to Vail Holdings.
The parties will execute settlement sheets (including customary prorations in accordance with local practice for commercial property transactions) and such other closing agreements and
documents as may be necessary or appropriate to complete the Closing in accordance with prevailing Colorado real estate practices for acquisitions of commercial properties, and as otherwise
may be required to implement and carry out the intent of this Agreement.
The Title Company will record the special warranty deed in the Records. Vail Holdings will pay for the cost of such recording, but no documentary fee shall be payable because, as provided
by statute, the consideration changing hands is less than $500 (and the face of the special warranty deed will recite the foregoing).
The Authority will cause the Title Company to issue the Title Policy to Vail Holdings, or to commit unconditionally to so issue the Title Policy promptly following Closing.
Development Project
If Vail Holdings is selected as the Respondent pursuant to the process described in Section 4 above, it shall expeditiously commence construction on the Project in conformance with the
Plans as approved by the Town pursuant to Paragraph 10(b) below.
Vail Holdings shall use its best efforts commence on-site construction activities no later than May 15, 2004. On site construction activities will commence no later than May 15, 2005,
provided the following events have occurred:
The Town of Vail has provided all necessary regulatory approvals including approval of a building permit;
Vail Holdings has obtained all necessary approvals from adjacent property owners;
Vail Holdings has entered into a satisfactory agreement with holders of any easements encumbering the Property.
The Project shall be constructed in accordance with the Plans approved by the Town of Vail.
Representations and Warranties by Vail Holdings. Vail Holdings represents and warrants that:
Vail Holdings is a corporation duly organized, validly existing and in good standing under the laws of the State of Colorado, has the inherent corporate power necessary to enter into
this Agreement, and has duly authorized the execution, delivery and performance of this Agreement by Vail Holdings pursuant to all requisite corporate action.
The consummation of the transactions contemplated by this Agreement will not violate any provisions of the governing corporate documents of Vail Holdings or constitute a default or result
in the breach of any term or provision of any contract or agreement to which Vail Holdings is a party or by which it is bound.
There is no pending or, to Vail Holdings’ knowledge, threatened litigation or legal proceeding contesting the power or authority of Vail Holdings to proceed with the transactions under
this Agreement, or the development of the Project.
Representations and Warranties of the Authority. The Authority represents and warrants that:
The Authority is an urban renewal authority duly organized and validly existing under the laws of the State of Colorado.
The Authority has the inherent power and authority to enter into and has taken all actions required to authorize its making of this Agreement and to carry out its obligations hereunder,
including compliance with the publication requirements of C.R.S. § 31 25 106(2).
There is no pending, or to the Authority’s knowledge, threatened litigation or proceeding which may contest the power or authority of the Authority or its officials to enter into or
consummate the transactions contemplated by this Agreement, or the Authority’s performance and observance of its obligations hereunder.
The execution and delivery of this Agreement and the documents required hereunder, the Authority’s performance and observance of its obligations hereunder, and the consummation of the
transactions contemplated by this Agreement will not (i) conflict with or contravene any law, order, rule or regulation applicable to the Authority or to the Authority’s governing documents,
(ii) result in the breach of any of the terms or provisions of or cause a default under any agreement or other instrument to which the Authority is a party or by which it may be bound
or affected, or (iii) permit any party to terminate any such agreement or instrument or to accelerate the maturity of any indebtedness or other obligation of the Authority.
Liability Insurance. Vail Holdings will maintain commercial general liability insurance against all claims for personal injury, death or property damage occurring upon or in the Property
during any period that the Authority is in ownership of the Property, with such coverage to have a single occurrence limit of not less than Two Million Dollars ($2,000,000) and an aggregate
available limit from time to time of not less than Two Million Dollars ($2,000,000). This liability insurance coverage will name the Authority as an additional insured, will be placed
with a good and solvent insurance company which is authorized to do business in the State of Colorado (and in any case with a rating of not less than A+ as established by Best and Company),
and will require the insurer to give at least thirty (30) days’ prior written notice to the Authority before any cancellation of or material reduction in coverage. Vail Holdings will
provide a certified copy of the required policy of liability insurance to the Authority upon request.
Authority Covenants. In connection with the ownership of the Property and the undertaking of the Project, the Authority covenants and agrees as follows: During any period that the
Authority is in ownership of the Property, the Authority will not take, authorize or suffer any action or circumstances arising by, through or under the Authority that causes any physical
damage or alteration affecting the Property, or the occurrence of any personal injury or property damage suffered by any party upon the Property; will not take or authorize any action
or engage in or authorize any course of conduct that causes any impairment of any easements, appurtenances, privileges, licenses or rights benefitting the Property, or that gives rise
to a violation of any applicable law, ordinance, rule or regulation with respect to the Property, or any change in or impairment of zoning, platting or other land use entitlements related
to the Property; and will not grant, cause or suffer the establishment of any lien or encumbrance against or other interest in the Property in favor of any third party that arises by,
through or under the Authority (provided that the foregoing is subject to and does not limit the Authority’s obligations to Vail Holdings under the other provisions of this Agreement).
Indemnity and Responsibility.
Vail Holdings will indemnify and defend the Authority and its officers and employees against costs and expenses, including reasonable attorneys’ fees, and losses and liabilities which
are suffered or incurred by the Authority and which are caused by or arise from any breach by Vail Holdings of its obligations under this Agreement, or any negligence or willful misconduct
of Vail Holdings, or its contractors or agents, that occurs in connection with the transactions under this Agreement.
The Authority will be responsible for, and to the extent permitted by law will reimburse Vail Holdings for all costs and expenses, including reasonable attorneys’ fees, and losses and
liabilities incurred by Vail Holdings that are caused by or arise from any breach by the Authority of its obligations under this Agreement, or any negligence or willful misconduct of
the Authority, or its contractors or agents, that occurs in connection with the transactions under this Agreement.
Default; Remedies.
A “Default” by either party hereunder shall mean the failure of that party to observe or perform any covenant, obligation or agreement of such party under this Agreement, or the existence
or occurrence of any circumstance which causes any representation or warranty made by such party in this Agreement to be false or misleading in any material respect, provided such party
does not cure such failure or circumstance within ten (10) days after the other party hereto gives written notice thereof (provided that this cure period will not apply to any such failure
or circumstance which is not susceptible of being cured).
If any Default by the Authority occurs and is continuing hereunder, Vail Holdings may (i) seek damages at law for actual out of pocket expenses, but not consequential damages, lost profits
or punitive damages; (ii) seek enforcement of the Authority’s obligations hereunder by any equitable remedies, such as specific performance or injunction; or (iii) elect to terminate
this Agreement.
If any Event of Default by Vail Holdings occurs and is continuing hereunder, the Authority may (i) seek any available remedy at law; (ii) seek enforcement of Developer’s obligations
hereunder by any equitable remedies, such as specific performance or injunction; or (iii) elect to terminate this Agreement; however, the Authority may not so terminate this Agreement
(i) if termination would prejudice the interests of the Authority or Vail Holdings in any pending Proceeding, or (ii) if the Authority has acquired fee title to the Property.
Term; Termination; Effect of Termination.
Unless sooner terminated in accordance with the other provisions hereof, this Agreement will have a term expiring upon, and will terminate upon, the completion of the Closing in accordance
with the terms hereof, or the Authority’s acceptance of a third party as the successful Respondent in accordance with the terms hereof, as applicable. Upon any termination of this Agreement,
the parties shall be released from all further obligations and duties hereunder, with the exception of any such obligation or duty or any breach thereof that accrues prior to the termination
and remains undischarged or uncured, or that by its terms or nature is intended to be performed after termination. Furthermore, the foregoing will not be construed to limit the rights
and remedies available to the non defaulting party under any circumstance where this Agreement is terminated because of a default. The provisions of this Agreement will survive Closing
and delivery of the deed in order to effectuate the foregoing.
Vail Holdings may terminate this Agreement in its sole discretion upon five days written notice. Upon receipt of such notice, the Authority will forthwith abandon the Eminent Domain
Proceeding. In the event Vail Holdings terminates this Agreement pursuant to this subsection (b), it shall pay to the Authority any outstanding Eminent Domain Costs within ten (10)
days of such termination.
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 Holdings:
Vail Associates Holdings, Ltd.
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) 8452555
Phone: (970) 8452359
With a copy to:
c/o Vail Resorts Development Company
Legal Department
Post Office Box 959
137 Benchmark Road
Avon, Colorado 81620
Attention: Kursten Canada, Esq.
Fax No.: (970) 8452555
Phone: (970) 8452546
If to the Authority:
Vail Reinvestment Authority
Stanley Zemler, Executive Director
75 South Frontage Road
Vail, CO 81657
Phone: (970) 479-2105
Fax No.: (970) 4792452
With a Copy to:
Gorsuch Kirgis LLP
Tower I Suite 1000
1515 Arapahoe Street
Denver, CO 80202
Attention: Malcolm M. Murray, Esq.
Phone: (303) 376-5000
Fax: (303) 376-5001
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.
Limitations on Assignment.
Vail Holdings will not assign its rights or delegate its duties and obligations pursuant to this Agreement without the prior written consent of the Authority, and any purported assignment
without the consent of the Authority will be null and void; provided, however, that Vail Holdings may at any time assign its rights and delegate its obligations under this Agreement
to any of its affiliates (which shall mean any entity that by virtue of direct or indirect majority ownership interests is controlled by, controls, or is under common control with Vail
Holdings).
The Authority may not assign any of its rights or delegate any of its obligations under this Agreement to any other party without the prior written consent of Vail Holdings, and any
purported assignment or delegation without the consent of Vail Holdings will be null and void.
Conflicts of Interest. The Authority will not allow, and except as disclosed in writing to the Authority, Vail Holdings 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 Authority or of the Town; an employee of the Authority or the Town who exercises responsibility
concerning the Project; or an individual or firm retained by the Town or the Authority who has performed consulting or other professional services in connection with the Project. The
Authority will not allow and Vail Holdings 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.
Attorneys’ 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).
Should the application of this provision in any circumstance prove to conflict with any other provision of this Agreement for the allocation of attorneys’ fees, this provision shall
be controlling.
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 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.
Titles of Sections. Any titles of the several parts and sections of this Agreement are inserted for convenience of reference only and will be disregarded in construing or interpreting
any of its provisions.
Authority Not A Partner; Vail Holdings Not Authority’s Agent. Notwithstanding any language in this Agreement or any other agreement, representation or warranty to the contrary, the
Authority will not be deemed or constitute a partner or joint venturer of Vail Holdings, Vail Holdings will not be the agent of the Authority, and the Authority will not be responsible
for any debt or liability of Vail Holdings.
Applicable Law. The laws of the State of Colorado will govern the interpretation and enforcement of this Agreement.
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 limitations on assignment of this
Agreement set forth in paragraph 19.
Further Assurances. The parties hereto agree to execute such documents, and take such action, as will be reasonably requested by the other party hereto to confirm or clarify the intent
of the provisions hereof and to effectuate the agreements herein contained and the intent hereof.
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.
Severability. 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 Agreement and, to that end, any provisions, covenants, agreements or portions of this Agreement are
declared to be severable.
Counterparts. 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.
Non Liability of Authority Officials and Employees. No council member, commissioner, board member, official, employee, agent or consultant of the Authority or the Town will be personally
liable to Vail Holdings for any breach or default by the Authority or for any amount that may become due to Vail Holdings under the terms of this Agreement.
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.
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 the “P3 & J Pre-Development Agreement”,
dated December __, 2003, is superseded and terminated.
[Balance of page intentionally left blank]
IN WITNESS WHEREOF, Vail Holdings and the Authority have made this Agreement as of the day, month and year first above written.
VAIL REINVESTMENT AUTHORITY
By:
Name:
Title:
ATTEST:
Secretary
[Signature blocks continue on following page]
VAIL ASSOCIATES HOLDINGS, LTD., a Colorado corporation
By:
Name:
Title:
MUR\59599.02\470484.1 6
MUR\59599.02\470484.1
14
MUR\59599.02\470484.1