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HomeMy WebLinkAbout2014-09 Timber Ridge Develpoment AgreementRESOLUTION NO.9 Series of 2014 A RESOLUTION APPROVING A TIMBER RIDGE DEVELOPMENT AGREEMENT; 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 "); WHEREAS, the members of the Town Council of the Town (the "Council ") have been duly elected and qualified; WHEREAS, the Town is the owner of certain real property generally described as the eastern half of the Timber Ridge property (the "Property "); WHEREAS, the Town wishes to facilitate the redevelopment of the Property consistent with the Housing zone district and those plans approved by the Town of Vail PEC and D"; and WHEREAS, to accomplish the redevelopment of the Property the Town desires to enter into a Development Agreement (the "Agreement') with its selected developer in the form attachedhereto as Exhibit A. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby approves the Agreement and authorizes the Town Manager to enter into the Agreement on behalf of the Town in substantially the same form as attached hereto as Exhibit A and in a form approved by the Town Attorney. Section 2. 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 1St day of April, 2014. Andrew P. Daly Town Mayor TTEST: • of Acting Town Clerk j, Resolution No. 9, Series 2014 00�GRADD •• DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement ") is made this day of , 2014 (the "Effective Date "), by and between the Town of Vail, Colorado, a Colorado home rule municipality (the "Town "), and Lion's Ridge Apartment Homes, LLC, a Wisconsin limited liability company ( "Developer ") (individually a "Party" and collectively the "Parties "). WHEREAS, the Town is the owner of certain real property, more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property "); WHEREAS, the Town has agreed to lease the Property to Developer for development of the Property for employee housing ( "Development ") pursuant to the Ground Lease dated 2014 and between the Town and Developer (the "Ground Lease "); WHEREAS the Development is subject to a Deed Restriction in the form attached to the Ground Lease as Exhibit B; WHEREAS, the Town and Developer entered into a Pre - Development Agreement dated November 4, 2013 regarding the Property, which pre- Development Agreement shall be deemed superseded by this Agreement; and WHEREAS, the Parties wish to elaborate on the terms of the Development process and parameters of the Development. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows: Obligations of the Town. The Town covenants and agrees as follows: a. The Town will be responsible for design and construction of any necessary rockfall mitigation systems, at the Town's sole cost. The rockfall mitigation systems shall be designed and constructed in accordance with Chapter 12 -21 of the Vail Town Code. The rockfall mitigation shall be complete on or before August 15, 2014 unless a later date is mutually agreed upon by both Parties. b. The Town and Developer shall grant to each other, for the benefit of the Property and the Adjacent Property, such temporary construction easements across the Property and the Adjacent Property that are mutually determined to be necessary for the Development.' Upon completion of the Development, appropriate permanent easements, including without limitation utility, drainage, and access easements, will be granted by the Parties for the benefit of the Property and the Adjacent Property. C. The Town shall refund 100% of all amounts paid by the Developer for the Town's construction and building materials use tax applicable to the Property, which Resolution No. 9, Series 2014 refund shall be paid by the Town to Developer within 5 business days after Developer's payment to the Town. 2. Obligations of Developer. Developer covenants and agrees as follows: a. The Development shall at all times be subject to the Vail Town Code, and Developer shall be responsible for payment of the Town's typical and customary plan review fees for review of all plans for the Property. b. Developer shall be responsible for all demolition and building permit fees for permits issued by the Town in connection with the Development. C. Developer shall be solely responsible to procure financing for the Development. If Developer wishes to use federal funds for the Development, it shall be Developer's sole responsibility to procure such funds. d. At no time shall the Development eliminate access to or the ability to safely occupy or operate the Timber Ridge housing units currently existing on the real property adjacent to the Property, as more particularly described in the Ground Lease (the "Adjacent Property "). e. Developer shall, at its sole cost, construct new improvements on the Property in accordance with the construction standards set forth herein and other applicable law. "Improvements" means any buildings, structures, signage, streets, sidewalks, utilities or other improvements necessary for the Development and constructed or installed by or for Developer on the Property. Developer shall commence construction of the Improvements by August 15, 2014, unless a later date is mutually agreed to by both Parties, and shall achieve substantial completion of the Improvements on or before the date that is 16 months after the date that Developer commences construction of the Improvements, unless a later date is mutually agreed to by both Parties. f. Developer shall cooperate with and coordinate with the Town regarding construction of the rockfall mitigation. g. Prior to issuance of a building permit, Developer shall submit and obtain approval of a detailed waste removal management and operations plan specifically describing how waste and recycling will be accommodated and managed on the site. h. Prior to issuance of a building permit, Developer shall submit and obtain approval of a construction staging plan to the Community Development Department for review and approval which addresses such matters as materials staging, construction parking plan, construction and occupancy phasing, temporary access, construction schedule, temporary utilities, traffic control, and emergency access. i. Prior to issuance of a certificate of occupancy, Developer shall apply for and record a revocable right -of -way permit for any and all private property improvements located within Town rights -of -way. Resolution No. 9, Series 2014 j. Prior to issuance of a building permit, Developer shall submit a Shoring and Excavation Plan to the Community Development Department for review and approval, which shall address such matters as excavation phasing, engineered shoring plans, detailed profiles and cross - sections, existing utilities, materials storage, and permanent and temporary easements. k. Prior to the issuance of a certificate of occupancy, Developer shall make a one time payment in lieu of transportation improvements to the Town for mitigation of development impacts on the Town's transportation systems of $170,000. 1. Prior to issuance of a building permit, Developer shall submit and obtain approval of an engineered analysis of gabion walls proposed to remain on the site. Said analysis shall address the existing structural conditions of the walls, how the existing walls will be physically integrated into the construction of the new retaining wall system, and how structural shoring will be provided during construction. In no instance shall the design or construction negatively impact the adjacent properties or improvements. m. Prior to issuance of a building permit, Developer shall submit and obtain approval of a revised grading plan for the west end of the Property demonstrating how the existing portions of the parking lot and drive aisles to remain tie into the proposed new improvements. n. Prior to applying for a building permit, Developer shall obtain a Notice to Proceed from the Colorado Department of Transportation ( "CDOT "). o. Developer shall not apply for a building permit until the Town has approved a parking management plan for the Development. 3. Construction of Improvements. a. All construction, alterations, renovations, repairs, refurbishment and other work on the Property shall be performed in compliance with this Agreement, the Deed Restriction, the Vail Town Code and the following: b. Work shall be done in a workmanlike manner, in full compliance with all applicable building codes, ordinances, and other laws or regulations of all governmental authorities having jurisdiction. C. No work shall be commenced without all licenses, permits, and authorizations required by applicable law. d. Developer shall have no right, authority or power to bind the Town or any interest of the Town in the Property for any claim for labor or for material or for any other charge or expense incurred in constructing any Improvements or performing any alteration, renovation, repair, refurbishment or other work, nor to render the Town's interest in the Property liable for any lien or right of lien for any labor, materials or other charge or expense. Resolution No. 9, Series 2014 e. Developer shall not be considered the agent of the Town in the construction, erection or operation of any Improvements. f. If Developer fails to complete the Improvements as required by this Agreement, the Town shall have the right, but not the obligation, to: complete the Improvements; restore the Property to the condition it was prior to commencement of construction of the Improvements; or restore the Property to a condition that the Town deems safe while awaiting completion of the Improvements by another party; and to charge the costs thereof to Developer. 4. Development Fee. Developer shall be entitled to a development fee (the "Development Fee ") in connection with the Development. The amount of the Development Fee shall not exceed the maximum development fee allowed by the Colorado Housing and Finance Authority under its qualified allocation plan adopted on October 25, 2012 and approved by the governor on January 16, 2013. The Development Fee may be paid from any project sources including, without limitation, debt proceeds, equity proceeds, and income from the Development. 5. Development Income. Income from the Development shall be distributed in the following order of priority: a. To pay all Development costs and operating and maintenance expenses, including without limitation property management fees and the Development Fee. b. To pay principal and interest on Development debt. C. To fund any reserves required by any lender related to the Development (each a "Lender Reserve "). d. To pay the required return on investment to any equity investors in the Development. e. To fund a project reserve (the "Project Reserve "), which shall be used for any shortfalls in subsections a -d hereof. Upon termination of the Ground Lease, if any amounts remain in the Project Reserve or any Lender Reserve, such amounts shall be remitted to the Town. f. In the event all Lender Reserves are fully funded in the amount required by the lender, and the amount of the Project Reserve is at least $150,000, any amount in excess of $150,000 shall be distributed 50% to the Town and 50% to Developer. 6. Term. This Agreement shall commence on the Effective Date, and shall terminate upon termination of the Ground Lease. 7. Security. Developer shall require the general contractor responsible for constructing the Improvements to provide a performance bond to Developer to guarantee the construction of the Improvements. The performance bond shall be equal to the full amount of the cost of construction of the Improvements. Developer shall provide a copy Resolution No. 9, Series 2014 of such performance bond to the Town prior to commencing construction of the Improvements. 8. Insurance. Throughout the term of this Agreement, Developer shall maintain the following insurance, and certificates of such insurance shall be furnished to the Town within 30 days of the Effective Date and at each subsequent policy renewal date: a. Commercial general liability insurance, including contractual liability, with limits of not less than $2,000,000 per occurrence for bodily injury, personal injury and property damage, naming the Town as an additional insured. b. Fire and extended coverage insurance covering the Property for injury or damage by the elements, or through any other cause, in an amount not less than the full actual replacement cost of the Property and Improvements, and sufficient to prevent the Town or Developer from becoming a co- insurer of any partial loss. C. During the course of any construction or repair of Improvements, Builders' Risk Insurance. Developer Default and Remedies. a. Each of the following is a Developer default of this Agreement: i. If Developer fails to perform any of its obligations under this Agreement and fails to remedy the same within 30 days after Developer is given a written notice specifying the same; provided that, if the nature of the violation is such that it cannot reasonably be remedied within 30 days, and Developer provides evidence to the Town that the violation cannot reasonably be remedied within 30 days, then the violation shall be remedied as soon as reasonably practicable, but in any case, within 180 days of the original notice of violation. ii. If an involuntary petition is filed against Developer under a bankruptcy or insolvency law or under the reorganization provisions of any law, or when a receiver of Developer, or of all or substantially all of the property of Developer, is appointed without acquiescence, and such petition or appointment is not discharged or stayed within 120 days after the happening of such event. iii. If Developer makes an assignment of its property for the benefit of creditors or files a voluntary petition under a bankruptcy or insolvency law, or seeks relief under any other law for the benefit of debtors. b. If a Developer default occurs, the Town may, in its sole discretion and without waiving any other rights under this Agreement or available to the Town: i. Withhold issuance of certificates of occupancy not yet issued for any buildings on the Property until said default has been remedied; Resolution No. 9, Series 2014 ii. Cause construction of all or part of the Improvements to be completed, and recover the costs of such completion from Developer; and iii. Cause the removal of any partially constructed Improvements and return of the Property to the condition it was prior to the commencement of construction, and recover the costs of such removal from Developer. C. In addition to the specific remedies set forth herein, the Town shall have all other remedies available at law or equity, and the exercise of one remedy shall not preclude the exercise of any other remedy, and any damages alleged by the Town may include lost rents. d. If the Town proceeds to complete the Improvements, Developer shall, at the request of the Town, promptly deliver a copy to the Town of all of Developer's plans and specifications related to the Improvements. 10. Town Default and Remedies. a. The following is a Town default of this Agreement: if the Town fails perform any of its obligations under this Agreement and fails to remedy the same within 30 days after the Town is given a written notice specifying the same; provided that, if the nature of the violation is such that it cannot reasonably be remedied within 30 days, and the Town provides evidence to Developer that the violation cannot reasonably be remedied within 30 days, then the violation shall be remedied as soon as reasonably practicable, but in any case, within 180 days of the original notice of violation. b. If a Town default occurs, Developer shall have all remedies available at law or equity, and the exercise of one remedy shall not preclude the exercise of any other remedy. 11. Notices. Any notice under this Agreement shall be in writing and may be given by U.S. Mail, postage prepaid, addressed as set forth herein; or hand - delivery. Notice shall be effective three days after mailing or immediately upon hand - delivery. The addresses of the Parties shall, unless changed in writing, be as follows: The Town: Town Manager Town of Vail 75 South Frontage Road Vail, CO 81657 Developer: Lion's Ridge Apartment Homes, LLC 200 North Main Street Oregon, WI 53575 Attn: Gary J. Gorman With a copy to: Willis J. Wright, Jr. Wright and Company, Inc. P.O. Box 7270 Resolution No. 9, Series 2014 Avon, CO 81620 12. Costs. Except as otherwise set forth herein, each Party shall be responsible for its own costs under this Agreement. 13. Modification. This Agreement may only be modified by subsequent written agreement of the Parties. 14. Integration. This Agreement and any attached exhibits constitute the entire agreement between Developer and the Town, superseding all prior oral or written communications. This Agreement shall supersede the Pre - Development Agreement between the Town and Developer dated November 4, 2013. 15. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assigns. 16. Severability. If any provision of this Agreement is determined to be void by a court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. 17. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. 18. Assignment. There shall be no transfer or assignment of any of the rights or obligations of Developer under this Agreement without the prior written approval of the Town; provided, however, that Developer may make a single assignment of this Agreement to a limited liability company in which Developer is a member without such prior written approval. Developer shall provide the Town with written notice of such assignment within thirty (30) days thereof. 19. Third Parties. There are no intended third -party beneficiaries to this Agreement. 20. Contingency, No Debt. Pursuant to Article X, § 20 of the Colorado Constitution, any financial obligations of the Town under this Agreement are specifically contingent upon annual appropriation of funds sufficient to perform such obligations. This Agreement shall never constitute a debt or obligation of the Town within any statutory or constitutional provision. 21. No Joint Venture. Notwithstanding any provision hereof, the Town shall never be a joint venture in any private entity or activity which participates in this Agreement, and the Town shall never be liable or responsible for any debt or obligation of any participant in this Agreement. 22. Force Majeure. Neither the Town nor Developer shall be in breach of this Agreement if a failure to perform any of the duties under this Franchise is due to Force Majeure, which shall be defined as the inability to undertake or perform any of the duties under this Agreement due to acts of God, floods, storms, fires, sabotage, terrorist attack, Resolution No. 9, Series 2014 strikes, riots, war, labor disputes, forces of nature or the authority and orders of government. 23. Recording. This Agreement shall be recorded with the Eagle County Clerk and Recorder subsequent to the Deed Restriction, but prior to any mortgage or other encumbrance on the Improvements or the Property. The obligations of Developer under this Agreement shall run with the land, and shall be binding on any subsequent holder of an interest in the Improvements or in the Property. Resolution No. 9, Series 2014 WHEREFORE, the Parties have executed this Agreement on the day and year first above written. ATTEST: Tammy Nagel, Acting Town Clerk LION'S RIDGE APARTMENTS, LLC By: Name: Its: STATE OF COLORADO ) ss. COUNTY OF ) before me TOWN OF VAIL, COLORADO Andy P. Daly, Mayor The foregoing instrument was subscribed, sworn to, and acknowledged this day of 2014, by as the of Lion's Ridge Apartments, LLC. My commission expires: (SEAL) Notary Public Resolution No. 9, Series 2014 EXHIBIT A LEGAL DESCRIPTION Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision, Block C, A Resubdivision of Lots 1, 2, 3, 4 & S, Town of Vail, County of Eagle, State of Colorado. Resolution No. 9, Series 2014