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HomeMy WebLinkAbout2015-18 Vail Valley Medical Center Development PlanRESOLUTION NO. 18 Series of 2015 ARESOLUTION DIRECTING THE TOWN MANAGER TO SIGN A DEVELOPMENT AGREEMENT BY AND BETWEEN THE TOWN OF VAIL AND THE VAIL VALLEY MEDICAL CENTER; 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 Vail Valley Medical Center (the "VVMC") intends to redevelop their property located at 181 West Meadow Drive; WHEREAS, the redevelopment of the property includes two separate phases, the East Wing and the West Wing; WHEREAS, VVMC will continue to provide health care services to the community throughout the duration of the redevelopment; and WHEREAS, the Town must ensure that both the West Wing and the East Wing are completed, and that certain obligations of VVMC are addressed, and to that end, VVMC is prepared to commit to the assurances and obligations in this Development Agreement, to demonstrate its commitment that the entire redevelopment will be completed in line with the community's expectations; and WHEREAS, the Council directs the Vail Town Manager to sign the Development Agreement by and between the Town of Vail and the Vail Valley Medical Center. NOW THEREFORE, B E IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby authorizes the Town Manager to sign the development agreement by and between the Town of Vail and the Vail Valley Medical Center 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 7�h day of July, 2015. A raiz crcen y r' To Clerk Resolution No. 1 es of 2015 Andrew P. y Town M or �UVNN• of L SEA EXHIBIT A Resolution No. 18, Series of 2015 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is made on the day of , 2015 (the "Effective Date"), by and between the Town of Vail, a Colorado home rule municipality (the "Town") and Vail Clinic, Inc., a Colorado nonprofit corporation d/b/a the Vail Valley Medical Center ("VVMC") (each individually a "Party" and collectively the "Parties"). WHEREAS, VVMC intends to redevelop the Property more particularly described in Exhibit A, attached hereto and incorporated herein (the "Property"); WHEREAS, the redevelopment of the Property (the "Project") will include two separate phases, the East Wing and the West Wing, as more particularly described in Exhibit B, attached hereto and incorporated herein by this reference; WHEREAS, VVMC will continue to provide health care services to the community throughout the duration of the Project; WHEREAS, the Town must ensure that both the West Wing and the East Wing are completed, and to that end, VVMC is prepared to commit to the assurances in this Agreement, to demonstrate its commitment that the entire Project will be completed in line with the community's expectations; and WHEREAS, the Parties acknowledge that a second development agreement will be necessary, at the time that the East Wing proceeds through the development review process, to address public improvements and other development issues specifically related to the East Wing and not already covered by this Agreement. NOW, THEREFORE, in consideration of the above premises and the mutual covenants and agreements set forth herein, the Parties agree as follows: 1. Process. The Parties acknowledge that the Project will occur in two separate phases, the first phase being the West Wing and the second phase being the East Wing, as more particularly described in Exhibit B. 2. VVMC Obligations. a. Submittals. VVMC shall prepare all applications and related plans for the Project, in compliance with the Vail Town Code, at VVMC's sole cost. b. Timing. VVMC shall submit a complete conditional use permit application to the Town for the entire East Wing phase prior to the issuance of any certificate of occupancy for the West Wing. C. Applicable Law. VVMC shall comply with all applicable law, including without limitation all current and future federal, state and local statutes, regulations, ordinances and rules relating to: the emission, discharge, release or threatened release of a Hazardous Material into the air, surface water, groundwater or land; the 7/10/2015 S: I COMMUNITY DEVELOPMENTICOUNCILIRESOL UTIONS120151DA-A070815. DOCX manufacturing, processing, use, generation, treatment, storage, disposal, transportation, handling, removal, remediation or investigation of a Hazardous Material; and the protection of human health, safety or the indoor or outdoor environmental, including without limitation the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"); the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq.; the Clean Water Act, 33 U.S.C. § 1251, et seq.; the Clean Air Act; the Federal Water Pollution Control Act; the Occupational Safety and Health Act; all applicable Colorado environmental laws; and all other federal, state or local laws and regulations relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, now or at any time hereafter in effect. d. Dedication of Easements. Prior to the issuance of the first certificate of occupancy for the Project, VVMC shall dedicate or convey to the Town all required easements, including without limitation emergency access easements, drainage easements, utility easements. e. Insurance. At a minimum, VVMC shall require its general contractor to carry not less than $4,000,000 of commercial general liability insurance covering death, bodily injury and property damage, and automobile comprehensive insurance. WMC shall require its general contractor and subcontractors to maintain all required worker's compensation insurance. Upon request, WMC and its general contractor and subcontractors shall provide written evidence to the Town of the existence of all required insurance policies described herein. f. Reimbursement Agreements. VVMC agrees that the various reimbursement agreements in place for consultants and attorneys necessary for the Town to process the applications submitted by VVMC in a timely manner shall remain in place through completion of the Project, and that any maximum amounts specified in such agreements shall be increased to amounts sufficient to cover costs incurred by the Town in processing the applications. 3. Public Improvements. a. General. In addition to VVMC's other obligations under this Agreement, WMC shall construct and install the public improvements required for the Project in accordance with the applicable ordinances, codes and regulations and as described in Exhibits C-1, C-2 and C-3, attached hereto and incorporated herein by this reference (the "Public Improvements"). All references in this Agreement to WMC maintaining a Public Improvement shall mean maintaining such Public Improvement until such time as it is accepted by the Town, in accordance with applicable Town ordinances and regulations. 2 7/10/2015 S:ICOMMUNITY DEVELOPMEN71COUNCILIRESOLUTIONS120151DA-A070815.DOCX b. Water, Sanitary Sewer and Storm Sewer. VVMC shall construct all required water, sanitary sewer and storm sewer facilities in accordance with the rules and regulations of the Town and the Eagle River Water and Sanitation District. C. Drainage i. VVMC shall construct drainage improvements in accordance with the rules and regulations of the Town. VVMC shall submit a final drainage study prior to the issuance of the first building permit for the Project. ii. As part of the drainage plan for the Project, VVMC shall route clean groundwater (from de -watering system) separately from stormwater. iii. All drainage improvements within the public rights-of-way shall be dedicated to the Town upon acceptance by the Town and thereafter maintained by the Town. All drainage improvements on private property shall be maintained by VVMC or private property owners subject to drainage easements to allow the Town to enter the property in the case that VVMC or such private property owners fail to adequately maintain such drainage facilities. d. Lighting. VVMC shall install all street and pedestrian lighting required for the Project in compliance with the Town's Design Guidelines, with attention to dark -sky compliant design and downcast lighting fixtures. e. Landscaping and Street Furniture. VVMC shall install and maintain all street trees, other landscaping and street furniture as approved for the Project, whether on private property or within public rights-of-way, at VVMC's expense in compliance with applicable Town regulations and the Landscaping Plan attached hereto as Exhibit D and incorporated herein by this reference. f. Parking. i. Due to the uncertainly of the potential West Parking Lot land exchange and the future of Lot 10 and how these factors could influence the final design of the surface parking lot for the Project, VVMC shall return to the Planning and Environmental Commission ("PEC") prior to construction of the parking lot. The purpose of the PEC hearing is for VVMC to present any changes to the parking lot design, and to present additional information, including without limitation: defining an access easement over the Property for access to Town parking spaces; evaluating appropriate setbacks between the westerly Property line and west edge of the parking lot with regard to screening, stream health, and snow storage; and Town Council's approval of any changes to Lot 10. ii. Prior to the issuance of the first building permit for the West Wing, and until the issuance of the first certificate of occupancy for the East Wing, VVMC shall provide the Town a minimum of 15 off-site parking spaces (to compensate for the 15 space reduction to existing parking from the re -design of the West Parking lot). 3 7/10/2015 S:ICOMMUNITY DEVELOPMEN71COUNCILIRESOLUTIONS120151DA-A070815.DOCX iii. Upon issuance of the first certificate of occupancy for the West Wing, and until the issuance of the first certificate of occupancy for the East Wing or until construction or acquisition of the 41 parking spaces required by Section 5(c)(ii) below, WMC shall provide a minimum of 41 net new off-site parking spaces, to meet the parking requirements of the Project. For purposes of this Agreement, "net new" means spaces to which VVMC did not have access prior to March 23, 2015. g. Snowmelt Facilities. WMC shall install heat and snowmelt facilities, including the heat plant and heat distribution system, required for all sidewalks on the Property as identified in Exhibit D, attached hereto and incorporated herein by this reference, and shall provide for the ongoing operation and maintenance of such facilities at WMC's sole cost. h. Loading Areas. The Project shall include adequate loading and delivery facilities available, free of charge, for use by the Project. Loading and delivery facilities may be located on private parking areas, drives, and roads located on the Project, but not on public streets. i. Middle Creek. On or before August 14, 2015, WMC shall submit a plan for cleaning and restoring the bank of Middle Creek adjacent to the Property and proceed through the appropriate process for completion by November 1, 2015. 4. Construction and Warranty. a. Plan. VVMC shall provide a construction management plan for review and approval by Town staff prior to the issuance of the first building permit for the West Wing. b. Phasing. Public Improvements may be constructed in phases, as required to serve the particular phase of the Project being constructed. C. Security. Prior to site disturbance for the Project, VVMC shall furnish to the Town either a cash escrow or an irrevocable letter of credit in an amount equal to 120% of the estimated costs of the Public Improvements required to support the phase of development for which the site disturbance is occurring. The Town shall have the right to draw against the security if WMC fails to construct the Public Improvements for such development phase in compliance with this Agreement or applicable law. The Public Improvements for each phase of development will be set forth in a Development Improvements Agreement, in the Town's standard form. The letter of credit shall be in a form reasonably approved by the Town and issued by a financial institution reasonably satisfactory to the Town. The security shall be released as construction progresses in accordance with the Town's standard practices. d. Construction Standards. WMC shall ensure that all construction and improvements are performed in a workmanlike manner in accordance with Town rules, regulations, requirements, criteria, and codes governing such construction and this 4 7/10/2015 S:ICOMMUNITY DEVELOPMEN71COUNCILIRESOLUTIONS120151DA-A070815.DOCX Agreement. The Town shall have no duty to accept the dedication of any Public Improvement that is not constructed in compliance with this Section. e. Damage. WMC shall be fully responsible for the prompt repair of any property which may be damaged during construction of the Public Improvements, whether such property is public or private. f. Completion. WMC shall notify the Town when it deems a Public Improvement to be complete. g. Conditional Acceptance. Within 30 days of notification that the Public Improvements are complete, the Town will review the same and deliver a written Conditional Acceptance, or, for any that are not acceptable, specify in writing in reasonable detail which improvements are not acceptable and the reasons they are unacceptable. h. Warranty. WMC warrants and guarantees that, for two years from the date of Conditional Acceptance, the Public Improvements: will not fail, and will be constructed and installed in a workmanlike manner suitable for their intended uses; will be constructed in compliance with applicable federal, state, municipal, and special district statutes, ordinances, regulations, rules and codes; and will comply with all applicable land use approvals. i. Final Acceptance. Upon the expiration of the warranty period for any particular Public Improvement, and provided any breaches of warranty have been cured, the Town shall issue written Final Acceptance of such Public Improvement and, thereafter, the Town will accept and maintain such improvements. Upon WMC's request, the Town shall confirm in writing the acceptance of such Public Improvement. 5. Fees. a. General. Except as expressly provided in this Agreement, WMC shall pay all permit, plan review, and other similar fees to the Town in connection with the Project. b. Employee Housing. The Parties recognize that the Project will generate new employees, and as such, WMC must mitigate the impacts on employee housing. In mitigation of those impacts, WMC agrees to the following: i. Initial Payment. WMC shall submit a cash -in -lieu payment in accordance with this Section (the "Employee Housing Payment"). The Employee Housing Payment shall be due upon issuance of the first building permit for the West Wing. The amount of the Employee Housing Payment shall include both the employees generated by the West Wing (56 employees as determined by the PEC on May 11, 2015) and the employees anticipated to be generated by the East Wing and all other aspects of the Project ("East Wing Estimate"). When the final employee housing requirements are determined by the Town (during the PEC approval process for the East Wing), the amount due will be determined, 5 7/102015 S:ICOMMUNITY DEVELOPMEN7ICOUNCILIRESOLUTIONS120151DA-A070815.DOCX under the formula in place at that time. The Employee Housing Payment shall be retained by the Town, regardless of whether the East Wing is ever constructed. ii. Audit. Two years following the issuance of the first certificate of occupancy for the West Wing, the Town shall conduct an audit to determine how many new employees were actually generated by the West Wing during that two- year period. If that number exceeds 56, WMC shall submit an additional cash - in -lieu payment for the additional employees. If that number is less than 56, WMC may be entitled to a credit as set forth below. iii. Credit. If a building permit is issued for the East Wing within 10 years from the date of issuance of the first certificate of occupancy for the West Wing, the Town shall credit that portion of the Employee Housing Payment not attributable to the West Wing against any employee housing mitigation requirements for the East Wing. iv. Refund. If a building permit is issued for the East Wing within 10 years from the date of issuance of the first certificate of occupancy for the West Wing, and the East Wing Estimate exceeded the actual employee housing mitigation requirements for the East Wing Estimate, the Town will provide a refund. V. No Credit or Refund. If a building permit is not issued for the East Wing within 10 years from the date of issuance of the first certificate of occupancy for the West Wing, the entire Employee Housing Payment shall be retained by the Town, with no credit or refund to WMC. C. Parking. The Parties recognize that the Project will generate increased parking demands, and that currently, a parking deficit of 173 spaces exists (the "Parking Deficit"). The Parties agree to address the deficit and the increased parking demands as follows: i. Annual Payment. WMC shall remit an annual payment to the Town to defray the Town's expenses incurred in providing parking for WMC during the non -ski season months, in the amount of $5,250 (the "Annual Parking Payment"). The Annual Parking Payment shall commence upon the issuance of the first building permit for the West Wing and continue until the first certificate of occupancy is issued by the Town for the East Wing. ii. Future Parking Commitment. Upon the issuance of the first certificate of occupancy for the East Wing, WMC shall construct or acquire ownership of a minimum of 41 net new parking spaces on-site or within 300' of the Property. In addition, WMC shall construct parking or implement permanent programs or improvements to provide alternative transportation solutions for employees that further mitigate the Parking Deficit. Examples of such programs or improvements include without limitation off-site or down -valley park and ride facilities and other programs set forth in § 12-10-20 of the Vail Town Code. All such programs are subject to review and approval by the Town pursuant to 6 7/102015 S:ICOMMUNITY DEVELOPMEN7ICOUNCILIRESOLUTIONS120151DA-A070815.DOCX applicable review procedures. Such programs shall not be altered or discontinued without prior Town approval. iii. Penalty. If WMC does not obtain the first building permit for construction of the East Wing and does not mitigate the Parking Deficit as required above within 10 years of the issuance of the first certificate of occupancy for the West Wing, then WMC shall pay the Town a penalty of $14,980,000 (which represents $70,000 per parking space); provided that the penalty shall be reduced in an amount equal to the parking spaces that have been constructed, acquired or mitigated for, in the amount of $70,000 per space. If the penalty is imposed, in addition to the penalty, the Parties acknowledge that the Town shall not have any obligation to act on any land use applications for the Property that do not address the Parking Deficit. iv. Audit. The Town shall conduct a biennial audit, at VVMC's cost, of the parking programs implemented and improvements constructed by WMC. If the audit demonstrates that such programs and improvements have not mitigated the Parking Deficit, the Town may require WMC to implement new or improved programs, or make additional improvements, subject to applicable Town review procedures. d. Traffic. The Parties recognize that the Project will generate traffic impacts, and as such, requirements for mitigation of such traffic impacts. The Parties agree to address those parking impacts as follows: i. Payment. WMC shall pay a traffic impact fee (the "Traffic Payment"), upon the issuance of the first building permit for the West Wing. The amount shall be $624,000 ($6,500 multiplied by 96, which represents the net new p.m. peak hour trips actually generated by the West Wing and estimated to be generated by the East Wing). ii. Refund/Additional Payment upon Codification. The Parties recognize that the Traffic Payment is based on the formula in place as of the Effective Date, but that the formula was not codified on the Effective Date. When the Town codifies the formula, the Parties agree that, should the codified formula result in a total payment that is less than the Traffic Payment, the Town will refund the difference to WMC, but should the codified formula result in a total payment that is more than the Traffic Payment, WMC will make the additional payment to the Town; provided, however, that the codification of the formula occurs prior to the submittal of the first building permit application for the East Wing or within 5 years of the issuance of the first certificate of occupancy for the West Wing, whichever occurs first. If no formula is codified within that time, no refund or additional payment shall be due. If the Town codifies the formula and WMC makes an additional payment to the Town as set forth above and the Town subsequently amends the formula to decrease the cost per trip within 5 years of the codification, then the Town shall refund the difference to WMC. 7 7/10/2015 SACOMMUNITY DEVELOPMEN71COUNCILIRESOLUTIONS120151DA-A070815.DOCX iii. Refund/Additional Payment for East Wing. Upon issuance of the first building permit for the East Wing, the number of new p.m. peak hour trips actually generated by the East Wing shall be determined. If the number of trips is less than the amount estimated in Section 5.d.i. above, the Town will refund the difference to WMC. If the number of trips is more than the amount estimated in Section 5.d.i. above, VVMC shall make the additional payment to the Town. iv. Credit. The actual cost to VVMC of the initial access improvements to the South Frontage Road and Town Hall parking lot, as set forth in Exhibit C-3, attached hereto and incorporated by this reference, shall be credited against the Traffic Payment, up to a maximum amount of $250,000, at such time as such improvements are accepted by the Town. 6. Breach and Remedies. a. By the Town. If the Town defaults on any obligation under this Agreement for any reason, WMC may seek damages, but WMC shall not be entitled to enforce this Agreement through an action for specific performance. b. By WMC. If WMC defaults on any obligation under this Agreement, the Town may: seek damages; draw on the letter of credit; and/or withhold issuance of building permits or certificates of occupancy not yet issued for any improvements on the Property until said default has been cured or waived. 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. 7. Miscellaneous. a. 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. b. Integration. This Agreement represents 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. C. Waiver. 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. d. Modification. This Agreement may only be modified by subsequent written agreement of the Parties. e. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, and venue for any legal action arising out of this Agreement shall be in Eagle County, Colorado. 8 7/102015 S:ICOMMUNITY DEVELOPMENTICOUNCILIRESOLUT/ONS120151DA-A070815.DOCX f. No Third Party Beneficiaries. No third party is intended to or shall be a beneficiary of this Agreement, nor shall any third party have any rights to enforce this Agreement in any respect. g. No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and VVMC, and nothing contained in this Agreement shall be construed as making the Town and WMC joint venturers or partners. h. Notices. A 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 WMC: Chief Executive Officer Vail Valley Medical Center 181 West Meadow Drive Vail, CO 81657 With a copy to: Chief Financial Officer Vail Valley Medical Center 181 West Meadow Drive Vail, CO 81657 i. Contingency, No Debt. Pursuant to Article X, § 20 of the Colorado Constitution, any financial obligation of the Town under this Agreement are specifically contingent upon annual appropriation of funds sufficient to perform such obligation. This Agreement shall never constitute a debt or obligation of the Town within any statutory or constitutional provision. j. Governmental Immunity. Nothing herein shall be construed as a waiver of any protections or immunities the Town and its officials, representatives, attorneys and employees may have under the Colorado Governmental Immunity Act, C.R.S. § 24-10- 101, et seq., as amended. k. Recording. This Agreement shall be recorded with the Eagle County Clerk and Recorder. The benefits and obligations of the Parties under this Agreement shall run with the land, and shall be binding on, and enforceable by, any subsequent holder of an interest in the Property. I. Rescission without Penalty. Notwithstanding any other provision of this Agreement, should the Town fail to approve any of the land use applications for the Project, either Party shall be entitled to rescission of this Agreement without any penalty whatsoever. Should the Town approve the applications, but the approvals are 9 7/10/2015 S:ICOMMUNITY DEVELOPMEN7ICOUNCILIRESOLUTIONS120151DA-A070815.DOCX challenged by referendum or other legal action, either Party shall be entitled to rescission of this Agreement without any penalty whatsoever. M. Force Majeure. Neither the Town nor VVMC shall be in breach of this Agreement if a failure to perform any of the duties under this Agreement 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, strikes, riots, war, labor disputes, forces of nature or the authority and orders of government. IN WITNESS WHEREOF, the Town and VVMC have executed this Agreement as of the Effective Date. ATTEST: Patty McKenny, Town Clerk am STATE OF COLORADO ) ) ss. COUNTY OF ) TOWN OF VAIL: Stan Zemler, Town Manager VVMC: The foregoing instrument was acknowledged before me this day of , 2015, by as of Vail Clinic, Inc., a Colorado nonprofit corporation d/b/a the Vail Valley Medical Center. My commission expires: Notary Public 10 7/10/2015 S:ICOMMUNITY DEVELOPMEN7ICOUNCILIRESOLUTIONS120151DA-A070815.DOCX �y s tfr a � a y t t� i fD f� 4. r. ( ♦ tt k.,' 7i�xFtis Rtiri:t(tfj 4. { f E- e k.F- f"�'p3f1 f. slit i i £ _ F' f,f,`} x ; x ; g pg ���$;� y�y p 4t yk @E {{7p > 3 -pt iAjxtIjia pp tt C p t 5 CD iL,i r sm IANy i w e + L } G , � tC 3 Y Y' !E 7 4 X � t Y r w e + L } V � tC 3 Y Y' X � t r xh