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4.11 4.11 AGREEWNTS\Development Agreement—Spruce Hospitality Group and Big Boom Realty—Fairfield Inn and Suites—5-21-18 RESOLUTION AUTHORIZING DEVELOPMENT AGREEMENT BY AND AMONG THE TOWN OF QUEENSBURY AND SPRUCE HOSPITALITY GROUP, LLC AND BIG BOOM REALTY, LLC FOR THE FAIRFIELD INN AND SUITES HOTEL PROJECT RESOLUTION NO.: ,2018 INTRODUCED BY: WHO MOVED ITS ADOPTION SECONDED BY: WHEREAS, Town of Queensbury Planning Board granted Site Plan approval on May 17, 2016 to Spruce Hospitality Group, LLC (Developer) for Site Plan PZ 91-2016 and Special Use Permit PZ 90-2016 providing for the construction of a 79 room hotel to be known as the Fairfield Inn and Suites Hotel at certain property located on Big Boom Road, subject to the Developer entering into a Development Agreement with the Town and Big Boom Realty, LLC, owner of some or all of the real property upon which the development will take place(Landowner), to address certain conditions of the approval, and WHEREAS, the Town, Developer and Landowner have reached agreement in principal on the terms of the Development Agreement, and WHEREAS, a copy of the draft, proposed Development Agreement has been presented at this meeting, NOW, THEREFORE, BE IT RESOLVED, that the Queensbury Town Board hereby approves of the Development Agreement by and among the Town of Queensbury and Spruce Hospitality Group, LLC and Big Boom Realty, LLC for the Fairfield Inn and Suites Hotel Project substantially in the form presented at this meeting, and BE IT FURTHER, RESOLVED, that the Town Board hereby authorizes and directs the Town Supervisor to execute the Development Agreement and the Town Supervisor and/or Director of Planning, Zoning and Code Compliance to take such other and further action necessary to effectuate the terms of this Resolution. Duly adopted this 21St day of May, 2018,by the following vote: AYES NOES ABSENT: 2 DRAFT for Review DEVELOPMENT AGREEMENT BY AND AMONG THE TOWN OF QUEENSBURY AND SPRUCE HOSPITALITY GROUP,LLC,AND BIG BOOM REALTY,LLC FOR THE FAIRFIELD INN AND SUITES HOTEL PROJECT THIS DEVELOPMENT AGREEMENT(the "Agreement") is made and entered into this of ,20 (the Effective Date), by and among the Town of Queensbury, a municipal corporation duly organized and established under the laws of New York State, having its offices at the address specified in Section 5 below(hereinafter the"Town,")and , SPRUCE HOSPITALITY GROUP, LLC,a limited liability company organized and established under the laws of the State of New York ,having its offices at the address specified in Section 5 hereof, (hereinafter the"Developer") and BIG BOOM REALTY, LLC, owner of some or all of the real property upon which the development which is the subject of this Agreement shall take place, whose address is specified in Section 5 below(hereinafter the"Landowner"). RECITALS WHEREAS, this Agreement, relates to the proposed development to be known as "FAIRFIELD INN AND SUITES Hotel," to be located at: Big Boom Road, on the property further specified by Tax parcel ID Numbers 309.14-1-89.1 and 309.14-1-86.11 and specified in further detail in Exhibit A hereto (hereinafter the "Property") and to certain Off-Site Transportation Improvements to be made outside of the Property, and WHEREAS,the Town of Queensbury Planning Board ranted Site Plan approval on May 17,2016 to Developer SPRUCE HOSPITALITY GROUP, LLCfor Site Plan PZ 91-2016 & Special Use Permit PZ 90-2016 allowing the construction of an 79-room hotel described and to be known as the FAIRFIELD INN AND SUITES Hotel at the Property; subject to a series of conditions, and WHEREAS, one of the conditions of the Site Plan approval requires the Developer to enter into a Development Agreement to address certain conditions of the approval including but not limited to the construction and/or installation of certain traffic/transportation system improvements, both on the Property and outside of the Property,to serve the Property and FAIRFIELD INN AND SUITES Hotel and the public and WHEREAS, all or a portion of the Property is owned by the Landowner, NOW, THEREFORE, Developer, in consideration of permits to be issued by the Town to enable construction of the FAIRFIELD INN AND SUITES Hotel and related improvements, and the Town, in consideration of certain site improvements and improvements to the public traffic - - - 11Page DRAFT for Review /transportation system to be constructed by Developer as part of the construction of the FAIRFIELD INN AND SUITES Hotel and related improvements, and the Landowner, in consideration of the benefits that will accrue to him by virtue of the improvements constructed on his real property by the Developer in conformity with the Site Plan approval and Special Permit approval granted by the Town Planning Board,together hereby agree as follows: General Provisions Section 1. The Project. The Project is more fully described as the proposed development and use of the Property, consisting of 4.25 acre portion of 20.23 acres in the Town of Queensbury, as set forth in the Site Plan documents identified as Site Plan PZ 91-2016 & Special Use Permit PZ 90-2016 approved by the Town of Queensbury Planning Board, including all related exhibits and permits and approvals. The Project is more generally described as a proposed 79-unit hotel to be known as"FAIRFIELD INN AND SUITES Hotel." Section 2. The Subject Property. The legal description of the Project site is set forth in Exhibit A , attached hereto and incorporated herein by this reference. The Project site is hereinafter referred to as the "Property". Section 3. Definitions. As used in this Agreement, the following terms, phrases and words shall have the meanings and be interpreted as set forth in this Section a) "Certificate of occupancy" means a certificate issued after inspections by the Town of Queensbury authorizing a person(s) in possession of property to dwell or otherwise occupy and/or use a specified building or dwelling unit. b) "Developer" means the person or entity which received the necessary Site Plan and Special Use Permit approvals from the Town Planning Board to construct the Project on the Property, or the successor(s) in interest to such person or entity. The Developer may or may not also own part of the Property c) "Director" means the Town's Community Development Director of Director of Planning and Building. d) "Existing Land Use Regulations" means, collectively, all of the laws, ordinances and regulations adopted by the Town of Queensbury and in effect on the Effective Date, which govern the permitted uses of land, the density and intensity of use, and the design, improvement, construction standards and specifications applicable to the development of the Subject Property,including,but not limited to the Code of the Town of Queensbury (Town Code), the Town's Comprehensive Plan, the Town's Official Zoning Map, and all other ordinances,codes, rules and regulations of the Town. 21Page DRAFT for Review e) "Landowner" is any person or entity other than the Developer who owns or acquires all or any portion of the Subject Property from the Developer. Every Landowner, unless otherwise released as provided in this Agreement, shall be subject to the applicable provisions of this Agreement. The Developer and one Landowner are identified in Section 5 of this Agreement. f) "Project"means the anticipated development of the Property as specified in Section 1. Section 4. Exhibits. Exhibits to this Agreement are as follows: Exhibit A—Legal description of the Property. a) Exhibit B — Site Development Plans —Proposed Hotel for SPRUCE HOSPITALITY GROUP,LLC prepared by Bohler Engineering last revised 08/07/2016, 2016 b) Exhibit C—Exit 18 Rezone Study dated February 2016 and prepared by CHA c) Exhibit D—Town of Queensbury Planning Board Resolution of May 17,2016 granting Approval for Site Plan PZ 91-2016 &Special Use Permit PZ 90-2016 for the proposed Project. d) Exhibit E—Town of Queensbury Town Code(incorporated in full by reference). Section 5. Parties to Development Agreement. The current parties to this Agreement and their addresses for purposes of any notices to be provided hereunder are: a) The"Town" is the Town of Queensbury, (Attn.: Town Clerk&Town Supervisor), 745 Bay Road, Queensbury,NY 1280 b) The "Developer" or Owner is SPRUCE HOSPITALITY GROUP, LLC, a private enterprise whose priincipal office is located at 1439 State Route 9, Lake George, NY 12845 c) The"Landowner" is BIG BOOM REALTY, LLC,whose address is Landowner may sell or otherwise lawfully dispose of a portion of the Property, following receipt of subdivision approval from the Town of Queensbury Planning Board, to another person or entity, who thereupon shall be identified as another Landowner and who, together with the original Landowner, unless either or both of them are otherwise released, shall be subject to the applicable provisions of this Agreement related to such portion(s) of the Property or to the entirety of the Property, as the case may be. The original Landowner and all subsequent Landowners shall provide the Town with written notice of any such disposition and the mailing address of each such purchaser,transferee or assignee. Section 6. Project is a Private Undertaking. It is agreed amoung the parties that the Project is a private development and that the Town has no interest therin or responsibility therefore except as authorized in the exercise of its governmental functions. 31Page i • DRAFT for Review Section 7. Term of Agreement. This Agreement shall commence upon the Effective Date, and shall continue in force until the Project development, including any required Off-Site Transportation Improvements, has been completed and Certificates of Occupancy and other necessary final approvals have been issued and all work has been finished to the Town's satisfaction and accepted by the Town, unless otherwise extended or terminated as provided herein. Following the expiration of the term (including any extension therof), or if sooner terminated, this Agreement shall have no force and effect, subject however, to post-termination obligations of the Developer and/or Landowner(s). Section 8. Minor Modifications. Minor modifications from the approved permits or the exhibits attached hereto may be approved in accordance with the provisions of the Town's code, and shall not require an amendment to this Agreement. Section 9. Further Discretionary Actions. Developer acknowledges that the Existing Land Use Regulations contemplate the exercise of further discretionary powers by the Town. These powers include,but are not limited to,review of additional traffic studies/analyses,review of Building Permit Applications, construction inspections, post-completion inspection and evaluation of traffic improvements and storm water management features, etc.. Nothing in this Agreement shall be construed to limit the authority or the obligation of the Town to hold legally required public hearings, or to limit the discretion of the Town and any of its officers or officials in complying with or applying any provisions of the Town Code and/or any other Existing Land Use Regulations or conducting any further review as set forth above or otherwise consistent with conditions imposed in the Site Plan Approval. Section 10. Construction of On-Site Transportation Improvements. Developer acknowledges and agrees that as part of the Project it shall construct ingress/egress improvements as shown on site plan drawings Sheet S1-S8 noted as approval drawings 1/27/2017 (Exhibit B) Site Plan PZ 91-2016 & Special Use Permit PZ 90-2016 on the Property (the"On-Site Transportation Improvements"). Section 11. Construction of Off-Site Transportation Improvements and Allocation of Costs Thereof. A. Developer acknowledges and agrees that as part of the Project it shall construct certain traffic- and transportation-related improvements specific to a sidewalk from site to the intersection of the sidewalk at Main Street. B. Developer acknowledges and agrees that it shall contribute percent cost of share or percent of physical improvements based on Figure 14 of the Exit 18 Rezone Study *. 4 ' Page DRAFT for Review The Off-Site Transportation Improvements generally consist of Northbound: Provide a separate left-turn lane, Southbound: Convert the lane designations, -from separate left- turn lane and shared through/right-turn lane,to shared left-turn/through lane and separate right-turn lane, Eastbound: no changes from existing, Westbound: no changes from existing. The improvement concept for the Big Boom Road/Media Drive/Main Street intersection is shown on Figure 14. These improvements will also require modification/replacement of the traffic signal at this intersection, and minor relocation/modification of other ancillary roadside elements such as sidewalks and drainage. Exit 18 Rezone Study Town of Queensbury, New York Big Boom Road/Main Street Figure 14 Improvement Concept TOTAL Spruce Hospitality ITEM Share Cost pavement 96,000 6% $ 5,760 sidewalk 7,000 6% $ 420 excavation 18,000 6% $ 1,080 curb 7,000 6% $ 420 traffic signal upgrades/modifications 175,000 6% $ 10,500 drainage 86,000 6% $ 5,160 basin at Big Boom 5,000 6% $ 300 Concept subtotal: $ 394,000.00 $ 23,640.00 Contingency: 40% $ 157,600.00 $ 9,460.00 Total: $ 551,600.00 $ 33,100.00 Say: $ 555,000.00 $ 33,000.00 Compound 3%over 5 years: $ 645,000.00 $ 38,000.00 * Estimated costs are based on prevailing wage requirements for public projects. The Developer and Landowner shall provide an analysis that must be reviewed and approved by the Town designated engineer if the total projected cost of the Off-Site Transportation Improvements is less than $38,000.00 Dollars). The Landowner acknowledges and agrees that it shall contribute 6% of the cost to construct the Off-Site Transportation Improvements, up to a maximum contribution not to exceed $38,000.00, 5JPage DRAFT for Review C. The Developer and Landowner agree that in the event the total cost of the Off-Site Transportation Improvements exceeds $38,000.00 Developer and Landowner shall mutually negotiate and agree as to who shall pay the remaining cost so as to complete the Project and enable the issuance of the necessary Certificate of Occupancy and final approvals and final acceptance by the Town. Section 12. Performance Bond for Off-Site Transportation Improvements Developer and Landowner shall jointly post a Performance Bond to ensure the satisfactory completion of all of the Off-Site Transportation Improvements. . The Bond shall name the Town as beneficiary and shall be in the minimum amount of$38,000.00, or as otherwise recommended by the Town's consulting engineers. The Bond shall be issued by a bonding company acceptable to the Town and must remain in full force and effect until one (1) year after all Off-Site Transportation Improvements traffic and ingress/egress improvements have been completed and accepted by the Town, or until December 31, 2020, which ever shall occur first. The Bond shall contain a provision requiring the issuer to provide the Town with at least 30 days' prior written notice of cancellation or termination of the Bond. Section 13. Cash Deposit to Town as Security for Off-Site Transportation Improvements. In lieu of a Performance Bond as provided above, Developer shall deposit the sum of$38,000.00 (the "Security Deposit") with the Town upon the signing of this Agreement as security for Developer's construction of the Off-Site Transportation Improvements if such improvements are required pursuant to Section 11. The Security Deposit shall ensure the satisfactory completion of all of the Off-Site Transportation Improvements. The Security Deposit shall be held in a separate interest-bearing account in the Town's name in a bank insured by the Federal Deposit Insurance Corporation and shall remain on deposit, if not withdrawn by the Town to pay for such Off-Site Transportation Improvements, until one (1) year after all Off-Site Transportation Improvements, if required, have been completed and accepted by the Town, or until December 31, 2020 which evershall occur first. After such period and upon final inspection and acceptance of any Off-Site Transportation Improvements by the Town, the Security Deposit shall be refunded to the Developer together with any accrued interest. Section 1. Phasing of Development. The parties acknowledge that the most efficient and economic development of the Subject Property depends upon numerous factors, such as market orientation and demand, interest rates, competition and similar factors, and that generally it will be most economically beneficial to the ultimate purchasers of the Subject Property to have the rate of development determined by the Developer. However,the parties also acknowledge that because the Development will be phased, certain amenities associated with the Project must be available to all phases of the Project, in order to address health, safety and welfare of the residents. Wage DRAFT for Review Therefore,the parties agree that the improvements associated with the Project shall be constructed according to the following schedule: Section 14. Commencement. Developer acknowledges and agrees that construction of the Project must be substantially commenced before the expiration of the Site Plan Approval granted by the Town of Queensbury Planning Board, subject to any extensions of the Site Plan Approval by the Planning Board. Section 15. Default. A. Developer and Landowner(s) shall be jointly and severally responsible for satisfying all of the obligations of this Agreement. Subject to extensions of time by the Planning Board,failure or delay by Developer and/or any Landowner not released from this Agreement to perform the requirements of any term or provision of this Agreement shall constitute a default. In the event of alleged default or other breach of any terms or conditions of this Agreement, the Town shall give the Developer and Landowner(s) notice in writing, specifying the nature of the alleged default or breach and the manner in which said default or breach may be cured. Landowner(s) and/or Developer shall have 30 days from receipt of such notice to cure such default or breach. B. After notice and expiration of the thirty(30)day cure period as specified above, if such default or breach has not been cured or if the required cure as set forth in the Town's notice of default is not being diligently pursued,the Town may, at its option, institute legal proceedings for breach of this Agreement. In addition, the Town may file an action to enforce the Town's Codes, and to obtain penalties and costs as provided in the Town's Codes for violations of this Agreement and the Code. Depending upon the nature of the default or breach, the Town may also seek recovery under the Performance Bond required under Section 11 above, or may withdraw the Security Deposit and apply it to the cost of constructing the Off-Site Transportation Improvements, as applicable. Section 16. Annual Review. The Town shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance with this Agreement by Developer and/or any Landowner. The Town may engage the Town Engineer and/or other qualified professionals to assist with or conduct such annual reviews, and the costs and fees charged to the Town by such professionals for such reviews and assistance shall be reimbursed in full by the Developer. Section 17. Termination. This Agreement shall expire and/or terminate as provided below: A. This Agreement shall expire and be of no further force or effect, except for any post- termination obligations of the Developer and/or Landowner, if the Project development contemplated in this Agreement has not been substantially commenced prior to the expiration 71Page DRAFT for Review of: (1)the Site Plan Approval (and any extensions thereof) issued by the Planning Board;and/or (2) any of the permits and/or approvals issued by the Town for such development. Nothing in this Agreement shall be construed to extend the expiration date of any permit or approval, including Site Plan Approval, issued by the Town for any development. B. This Agreement shall expire and be of no further force and effect, except for any post- termination obligations of the Developer and/or Landowner, if the Developer submits applications for development of the Property that are inconsistent with such permits and approvals. C. This Agreement shall otherwise terminate in accordance with Section 7 above. Upon termination of this Agreement, the Town shall record a notice of such termination in a form satisfactory to the Town Attorney. Section 18. Effect of Termination on Developer Obligations; Post-Termination Obligations. Termination of this Agreement as to the Developer and/or any Landowner of the Property or any portion thereof shall not affect any of the Developer's obligations to: (1) ensure that all ingress/egress improvements and all traffic improvements and On-Site Transportation Improvements and any required Off-Site Transportation Improvements remain in good condition and continue functioning as designed at least one full year after Termination of this Agreement, subject to a final inspection and acceptance by the Town at such time, and (2) to continuously maintain the Performance Bond required under Section 7 in full force until at least one full year after Termination of this Agreement and until the Town issues an approval following such final inspection of all ingress/egress improvements and all traffic improvements and On-Site Transportation Improvements and any required Off-Site Transportation Improvements, and (3) comply with the Site Plan Approval,Town Comprehensive Plan and all applicable zoning code(s) and/or subdivision map and/or conditions of other land use approvals with respect to the Property and (4) pay in full all assessments, liens, fees or taxes on the Property and all improvements thereon. Section 19. Assignment and Assumption. The Developer shall have the right to sell, assign or transfer the Property, subject to this Agreement, to any person, firm or corporation at any time.Developer shall provide the Town with prior written notice of any intent to sell,assign, or transfer all or a portion of the Property, at least 30 days in advance of such action. Any sale, assignment or other transfer of any portion less than the entire Property shall require prior subdivision review and approval by the. Town Planning Board. Upon any sale, transfer or assignment of the Property, in whole or in part, Developer shall provide the Town with written notice of the name and mailing address of the purchaser, assignee or transferee. Section 20. Covenants Running with the Land. The conditions, requirements and covenants set forth in this Agreement and those incorporated herein by the attached Exhibits shall run with the land,and the benefits and burdens shall bind and inure to the benefit of the respective 81 Page DRAFT for Review parties. The Developer, Landowner and every purchaser, assignee or transferee of an interest in the t Property,or any portion thereof, shall be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof and a party thereto, with respect to the Property or any such portion thereof sold, assigned or transferred to such purchaser, assignee or transferee.. Any such purchaser, assignee or transferee shall observe and fully perform all of the duties and obligations of Developer or Landowner(as applicable, depending on the nature of the interest(s) transferred) contained in this Agreement, as such duties and obligations pertain to the portion, or entirety, of the Property or interest sold, assigned or transferred to such purchaser, assignee or transferee, as the case may be.. Section 21. Amendment to Agreement; This Agreement may be amended only in writing and by written consent of all of the parties.. Section 22. Releases. Developer, original Landowner and any subsequent Landowner(s), may free itself from further obligations relating to any portion of the Property sold,assigned,or transferred,provided that the buyer,assignee or transferee expressly assumes, in writing, all of the obligations under this Agreement as provided herein and such document is recorded in the Warren County Clerk's Office and the Town is provided with a copy of such recorded document by the party seeking to be released. Section 23 Notices. Notices, demands, correspondence to the Town, Developer and Landowner shall be sufficiently given if sent via United States Postal Service Certified Mail to the addresses of the parties as designated in Section 5. Notice to the Town shall be to the attention of both the Town Supervisor and the Town Clerk. Notices to subsequent Landowners shall be required to be given by the Town only to each Landowner for whom the Town has received a written notice of address. The parties hereto may, from time to time, advise the other of new addresses for such notices, demands or correspondence.Notice of any change in a party's mailing address shall be given via Certified Mail in accordance with this paragraph. Section 24. Reimbursement for Agreement Expenses of the Town. Developer agrees to reimburse the Town for actual expenses incurred, over and above any fees paid by Developer as an applicant during the Site Plan application process, by Town directly relating to the preparation, execution and filing of this Agreement, including recording fees, publishing fess and reasonable staff and consultant costs not otherwise included in the referenced Site Plan application fees. This Agreement shall not take effect until the fees provided for in this section, as well as any processing fees owed to the Town for the Project which are outstanding at the time of execution, have been paid in full to the Town. Upon payment of all expenses, the Developer may request written acknowledgement of payment of all fees. Payment of all fees shall be made, at the latest, within thirty (30) days from the Town's 9IPage DRAFT for Review presentation of a written statement of charges to the Developer. Section 25. Applicable Law or Venue and Attorneys' Fees. This Agreement shall be construed and enforced in accordance with the laws of the State of New York. If litigation is initiated to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party.Venue for any action shall lie exclusively in New York State Supreme Court in Warren County. Section 26. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than Developer or a Landowner to challenge this Agreement or any provision herein, the Town may elect to tender the defense of such lawsuit or individual claims in the lawsuit to Developer and/or Landowner(s). In such event, Developer and/or such Landowners shall hold the Town harmless from and defend the Town from all costs and expenses incurred in the defense of such lawsuit or individual claims in the lawsuit, including but not limited to, attorneys' fees and expenses of litigation as well as any damages awarded to the prevailing party or parties in such litigation. The Developer and/or Landowner shall not settle any lawsuit without the consent of the Town. The Town shall act in good faith and shall not unreasonably withhold consent to settle. Section 27. Severability. If any phrase, provision or section of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable,the validity and enforceability of the remainder of this Agreement shall not be affected or impaired. 10IPage • DRAFT for Review IN WITNESS WHEREOF,the parties hereto have caused this Development Agreement to be executed as of the date first set forth above.: OWNER/DEVELOPER: TOWN OF QUEENSBURY By By Its Supervisor LANDOWNER: By: On this day of , in the year 20 before me, the undersigned, personally appeared ,personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s)whose name(s) is(are)subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument. Notary Public On this day of , in the year 20 before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s)whose name(s) is(are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument,the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument. Notary Public 111Page • DRAFT for Review On this day of , in the year 20_ before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s)whose name(s) is(are)subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument. Notary Public ATTEST: By Town Clerk APPROVED AS TO FORM: By Town Counsel N:\Clients\QUEENSBURY\PLANNING\Draft Development Agreement- Spruce Hospitality Group- mmsh rev 2 12-23-16.docx 12 IPage