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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.? 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