No preview available
HomeMy WebLinkAboutC13-104 The Vail Corporation MOA Memorandum of Agreement Between Eagle County, Colorado And The Vail Corporation This Memorandum of Agreement ( "Agreement ") is made and entered into by and between Eagle County, Colorado, by and through its Board of County Commissioners ( "Eagle County ") and The Vail Corporation on behalf of itself and its affiliates ( "Vail Resorts "). Eagle County and Vail Resorts are each a Party to this Agreement and together are referred to as the Parties. Recitals 1. Eagle County has adopted the Eagle County Efficient Building Code for Commercial Buildings in Division 4 -9 of the Eagle County Land Use Regulations (as amended from time to time, the "Eco -Build Regulations "). The Eco -Build Regulations encourage cost - effective sustainable building methods to create durable, energy efficient structures that conserve natural resources, promote the efficient use of building materials, and improve indoor air quality. 2. Vail Resorts operates Vail Mountain Resort and Beaver Creek Resort in Eagle County, Colorado (the "Resorts "). The Resorts include federal National Forest System lands administered by the United States Forest Service ( "Forest Service "). 3. The Forest Service comprehensively regulates the construction, use, occupancy, and operation by Vail Resorts of buildings and other facilities on National Forest System lands at the Resorts under the Ski Area Permit Act of 1986, 16 U.S.C. § 497b, and other applicable federal laws. 4. Vail Resorts undertakes numerous actions on National Forest System lands within Eagle County that improve the environment, conserve natural resources, promote energy efficiency, and mitigate adverse environmental conditions (the "Environmental Projects "). The Environmental Projects, as further defined below, are in the public interest, and benefit Eagle County. 5. A disagreement arose between the Parties about whether and to what extent the Eco - Build Regulations apply to buildings or facilities or improvements authorized by the Forest Service and constructed by Vail Resorts on National Forest System lands at the Resorts. 6. The Parties desire to enter into this Agreement to resolve their disagreement and memorialize their agreement that Eagle County shall accept the value of the Environmental Projects undertaken by Vail Resorts on National Forest System lands in Eagle County to satisfy fees under the Eco -Build Regulations on the terms set forth in this Agreement. 1 Agreement A. The Parties agree that Vail Resorts may use Credits (defined below) to satisfy Fees (defined below) under the Eco -Build Regulations. 1. Fees. Eagle County shall determine for each new building or facility or improvement constructed by Vail Resorts on National Forest System Lands in Eagle County (each a "Vail Resorts Project ") beginning with calendar year 2010 the exterior energy fee in dollars that would be due under the Eco -Build Regulations for Exterior Energy Uses (defined in Section 4 -925 of the Eco -Build Regulations as snowmelt over 200 square feet, spa /hot tubs over 64 square feet, and exterior pools) associated with such Vail Resorts Project (the "Fee "). Other than the Fee for Exterior Energy Uses, Eagle County shall not calculate a fee under the Eco -Build Regulations for Vail Resorts Projects. Eagle County shall keep a record of the Fees determined under this Agreement, and Eagle County may carry over, year to year, the Fees that are not offset by Credits (defined below) in the Annual Review (defined below) or that are not paid by Vail Resorts as provided herein. The determination of the Fee due for a Vail Resorts Project under this Section 1 shall be made in accordance with the Eco -Build Regulations in effect at the time an Eagle County building permit is issued for such Vail Resorts Project. 2. Credits. Beginning with calendar year 2010, Vail Resorts shall be entitled to a Credit for each Environmental Project as determined in accordance with the provisions governing Environmental Projects set forth in paragraph B below. Vail Resorts shall keep a record of the Credits, and Vail Resorts may carry over, year to year, the Credits that are not applied to Fees in the Annual Review (defined below). Vail Resorts agrees to use the worksheet attached to this agreement as Exhibit A for record keeping purposes. 3. Annual Review of Cumulative Fee and Credit Balance. The Parties agree that Vail Resorts shall use Credits to satisfy the Fees as provided in this Agreement. In the first quarter of each calendar year after the execution of this Agreement, the Parties shall cooperate in good faith with one another to produce a single document that identifies the cumulative record of the Fees and the Credits accrued under this Agreement (the "Annual Review "). The Parties agree to meet together to conduct the Annual Review and each Party shall designate two representatives to attend the Annual Review. The Parties shall use that record of Fees and Credits to determine whether the cumulative balance is in a Fee or Credit deficit or surplus. When applying Credits to Fees, the Parties shall first apply to Fees the Credits for Energy Projects provided, however, the Parties shall also apply to Fees the Credits for Environmental Projects that are not Energy 2 Projects in accordance with the provisions governing Environmental Projects set forth in paragraph B below. 4. Except as provided herein, the Parties do not intend for either Party to make cash payments to the other at the Annual Review or otherwise under this Agreement or the Eco -Build Regulations. Except as provided herein, it is the Parties' shared intent that the record of cumulative Fees and Credits shall be a complete and full satisfaction of any obligation that Vail Resorts may have under the Eco -Build Regulations for Vail Resorts Projects. If any Fees are not offset by Credits five years after the calendar year in which such Fees are first determined by Eagle County, Vail Resorts shall pay to Eagle County the monetary value of such Fees. Such payment shall occur within ninety (90) days following the end of such five -year period. B. Environmental Projects. 1. The Parties agree that Environmental Projects for purposes of this Agreement are projects that Vail Resorts undertakes on National Forest System lands in Eagle County that promote energy efficiency, generate renewable energy, improve or restore the environment, conserve natural resources, promote non - motorized recreation, mitigate adverse environmental conditions, or that mitigate, minimize or avoid adverse environmental impacts of authorized actions. 2. There are three categories of Environmental Projects: Energy Projects, Other Environmental Projects, and Unanticipated Projects. i. Energy Projects involve energy use reduction, waste heat capture, directing waste heat from equipment into other spaces, building or equipment insulation, automatic thermostats and controls, automatic lights, efficient lighting upgrades, replacing existing infrastructure with more energy efficient infrastructure, efficient snowmaking equipment upgrades, biomass or ground source heating systems, converting snowmaking equipment to low energy snowmaking equipment, installing solar panels, onsite renewable energy generation, passive solar, or removal and use of timber (including mountain pine beetle mitigation) for onsite or off -site energy generation. To the extent consistent with overall environmental and mountain planning, Vail Resorts agrees to consider prioritizing Energy Projects during the process of planning and implementing Environmental Projects. ii. Other Environmental Projects are not Energy Projects and include, by way of illustration and not by way of limitation: dead and dying tree removal, reforestation, planting tree seedlings, re- vegetating disturbed areas with native seeds or plants (excluding routine re- vegetation for 3 construction projects), hiking or biking recreation path construction or maintenance, drainage improvements, water runoff or erosion control, stormwater control, slope failure restoration, mountain pine beetle mitigation that is not also an Energy Project, potable water use reductions, automatic faucets, waterless urinals, and recycling. iii. Unanticipated Projects are projects that Vail Resorts may desire to undertake that the Parties did not anticipate as an Energy Project or an Other Environmental Project, but which Vail Resorts concludes should be treated as an Environmental Project for purposes of this Agreement. Vail Resorts agrees to provide information reasonably requested by Eagle County to allow Eagle County to evaluate the project. If Eagle County does not agree with Vail Resorts, as soon as practicable the Parties shall convene an in- person meeting of the Eagle County Environmental Policy Planner, an Eagle County Commissioner, the Eagle County Planning Director, the Chief Operating Officer of the applicable Resort, the Vail Resorts Environmental Affairs Manager, and a Vail Resorts public affairs representative at which meeting the six participants (the "Unanticipated Projects Committee ") shall endeavor in good faith and based upon a spirit of compromise and the aims of this Agreement to resolve the difference of opinion as to the project at issue, including the dollar value of the Credit for such project. The proposed Unanticipated Project shall be evaluated based on whether it meets the intent and purpose of this Agreement. If the Unanticipated Projects Committee is unable to reach agreement, the Parties shall submit the disagreement over the proposed Unanticipated Project to the Judicial Arbiter Group in Denver, Colorado, for mediation before a neutral mediator as soon as practicable, each Party to pay one -half of the expense of such mediation. 3. Vail Resorts shall maintain a record of its annual expense for each Environmental Project, commencing with Environmental Projects undertaken in calendar year 2010. The expense for an Environmental Project may include the dollar value for the Environmental Project of the: expenditures, project labor, and the reasonable market value of in -kind contributions of materials or services (for example, market hourly rates for equipment use) incurred in connection with the Environmental Project (collectively, the "Dollar Value "). An Energy Project shall generate a Credit equal to 100% of the Dollar Value of such Energy Project. An Other Environmental Project shall generate a Credit equal to 50% of the Dollar Value of such Other Environmental Project. The Parties shall follow the procedure identified for Unanticipated Projects to determine the value of a Credit for an Unanticipated Project that is treated as an Environmental Project for purposes of this Agreement. /--- C. Effective Date. This Agreement is effective as of y� , 2013. 4 D. Term. This Agreement shall be for an initial term of ten (10) years. Following the expiration of the initial term this Agreement shall automatically renew for successive one (1) year periods provided that neither Party sends a notice of termination to the other Party thirty (30) days prior to expiration of the then current term. If the Eco -Build Regulations are materially changed or repealed, either Party may terminate this Agreement on thirty -days written notice to the other Party. Any such termination shall be effected by delivery of a written notice of termination specifying the date upon which termination becomes effective. Upon the expiration or termination of this Agreement, the Parties shall cooperate in good faith with one another to produce a single document that identifies the cumulative record of the Fees and Credits accrued under this Agreement through the expiration date of or the effective date of termination of this Agreement. If any Fees are not offset by Credits as of the termination of this Agreement, within 90 days following the termination date, Vail Resorts shall pay to Eagle County the monetary value of such Fees. E. Scope of Agreement. This Agreement applies solely to buildings or facilities or improvements constructed by Vail Resorts (including its affiliates) on National Forest System lands in Eagle County, Colorado. This Agreement has no application on any other lands in Eagle County, Colorado. Nothing in this Agreement shall be construed as an admission or denial by either Party as to whether the Eco -Build Regulations apply on National Forest System lands. F. Warranty of Capacity to Execute Agreement. Each Party represents and warrants to the other Party that it has the legal power and authority to enter into and bind itself to the terms of this Agreement. G. Duty to Effectuate. The Parties agree to perform lawful, additional acts as are reasonably necessary to effectuate the purposes of this Agreement. H. Counterparts. This Agreement may be executed in one or more counterparts, any of which need not contain the signatures of more than one Party but all signed counterparts taken together shall constitute one and the same Agreement. A facsimile or scanned signature shall be deemed as valid as an original signature. I. Section Headings. The section and paragraph headings in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement. 5 J. Notice. Any notice required or necessary under this Agreement shall be provided in writing to the Parties at the following locations: If to Eagle County: If to Vail Resorts: Eagle County The Vail Corporation Attention: Eagle County Attorney Attention: Assistant General Counsel P.O. Box 850 390 Interlocken Crescent 500 Broadway Broomfield, Colorado 80021 Eagle, Colorado 81631 K. Amendment. Any revision, amendment, or modification of this Agreement shall be valid only if in writing and signed by the Parties. IN WITNESS WHEREOF, the Parties have duly authorized and caused this Agreement to be executed as follows: Eagle Count Colorado The Vail Corporation g Y, p By and through its Boa •iof County Cof mi •oners / - �t� By: / BY :. �hv — Alex Iskenderian Jo Stay• ey, Chairman Senior Vice President and COO - VRDC Date: / - � /� Date: y' ATTEST: A1)1, Ctiref-d \- 7s ANN/ V lir '` Teak Simonton Clerk to the Board Amisnvd �s tl� ter) town BA NAN Dts 6 _. Exhibit A Worksheet it 7 • Exhibit A: Worksheet Fees 1. Snowmelt area(s) over 200 ft ft x $16 /ft = $ 2. Outdoor Pool area(s): ft x $136 /ft = $ 3. Outdoor spa /hot tub area(s) over 64 ft ft x $176 /ft = $ A. Fee Total 1 through 3: $ Credits Details of the Dollar Value of Energy Projects, Other Environmental Projects, and Unanticipated Projects are attached hereto. 1. Energy Project Dollar Value: $ 2. Other Environmental Project Dollar Value $ x 50% = $ 3. Unanticipated Project Dollar Value $ x factor agreed upon by the Parties under Paragraph B.2 and B.3 of the Agreement = $ B. Credits Total 1 through 3: $ C. Total Fees minus Total Credits (Line A minus Line B) = $ Capitalized terms in this Exhibit A are defined in the accompanying Agreement. 1