04-08-2008 CSC LAND, LLC SETTLEMENT AGREEMENT RE SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR THE GATESSETTLEMENT AGREEMENT
dpi
This Agreement ("Agreement") is entered into the day of April, 2008, by
and between CSC Land, LLC ("CSC") and the Town of Avon ("the Town").
RECITALS
WHEREAS, the Town and CSC have entered into a Second Amended and
Restated Development Agreement ("the 2007 Agreement") for The Gates dated August
24, 2007, and capitalized terms used in this Agreement without further definition have
the meanings given to them in the 2007 Agreement; and
WHEREAS, Section 4.3(a) of the 2007 Agreement provides that, should CSC be
delayed, hindered or prevented for any reason from proceeding in accordance with the
schedule of construction deadlines attached as Exhibit A to the 2007 Agreement (each, a
"Milestone Event"), CSC shall, within thirty (30) days after commencement of the delay,
provide the Town with written notice of the delay, the reason therefor and an estimate of
the expected duration of the delay; and
WHEREAS, on December 10, 2007, CSC provided written notice that it had been
delayed, hindered or prevented from completing landscaping by the Milestone Event date
of November 15, 2007, and requested that the Town approve an extension of the
Milestone Event date to December 6, 2007 (the "Requested Landscape Extension"); and
WHEREAS, the Town declined to approve the delay; and
WHEREAS, on February 12, 2008, the amount of $21,000 was deducted from the
Restoration Bond posted by CSC, and the amount thereof has not been replenished; and
WHEREAS, the remaining Milestone Events are as follows:
a. Complete hardware installation April 20, 2008
b. Call for Town final inspection June 27, 2008
C. Final Certificate of Occupancy issued July 31, 2008; and
WHEREAS, the Town is in possession of an Improvement Location Certificate
dated December 26, 2007, which, without stating a measurement point of reference,
identifies a peak elevation on The Gates building of 7524.4 to 7525 feet above sea level;
and
WHEREAS, disputes ("Milestone and Height Disputes") have arisen between
CSC and the Town in connection with: (a) the Milestone Events and the Requested
Landscape Extension, and (b) whether a peak elevation of 7525 feet is permitted by the
approved zoning and construction plans for the Gates (the "Height Dispute"); and
WHEREAS, CSC and the Town wish to resolve the Milestone and Height
Disputes and to memorialize the terms of such resolution in this Agreement.
NOW, THEREFORE, in consideration of the premises and agreements, covenants
and promises herein, the parties agree as follows:
1. Subject to compliance with the other provisions of this Agreement, each of
the Town and CSC hereby releases the other from any and all liability and claims of
whatsoever kind and nature, resulting from or in any way arising out of the Milestone and
Height Disputes prior to the date hereof.
2. At the time of execution of this Agreement, CSC shall pay to the Town the
amount of $21,000 to replenish the Restoration Bond posted by CSC and in settlement of
the Milestone and Height Disputes.
3. The Town waives compliance by CSC with any Milestone Event, except
the Milestone Event of "Final Certificate of Occupancy issued" ("the Final C,O.
Milestone Event").
4. In the event that, without any fault or delay on the part of the Town, CSC
fails to meet the Final C.O. Milestone Event by July 31, 2008, CSC hereby elects, in
accordance with Section 43(b) of the 2007 Agreement, from and after the date of such
failure, the Town may assess against CSC liquidated damages of $1,000 per day (which
amount the parties agree to be fair and reasonable and not a penalty) and the Town may
deduct such amount per day from the Restoration Bond until the Final C.O. Milestone
Event is met.
5. Inasmuch as the approved building plans are ambiguous as to the height
limitation and CSC relies upon an interpretation of the plans which is not unreasonable,
the Height Dispute is resolved in favor of CSC on the basis of Avon Municipal Code
Section 17.12.040 (b), and the height of the building shall not prevent issuance of the
Certificate of Occupancy.
6. In connection with any financing, refinancing, sale, lease or other transfer
of interest in The Gates by CSC, its successors or assigns, CSC, any transferee or
potential transferee of CSC's interests, or any lender providing financing or refinancing
may request that the Town provide a letter confirming that The Gates is in compliance
with applicable zoning regulations. In light of the resolution of the Height Dispute, upon
receipt of any such request, and with the understanding that at the time of such request a
Certificate of Occupancy shall have been issued for The Gates, the Town will not raise
any issues regarding the height of The Gates project and, absent any documented zoning
violation occurring subsequent to the date of issuance of the Certificate of Occupancy,
will issue a clean zoning letter, stating that the Town is not aware of any unresolved
zoning code compliance issues.
This Agreement constitutes the entire understanding and agreement of the
Town and CSC with respect to the Milestone and Height Disputes only.
8. Except as expressly modified herein as a settlement of the Milestone and
Height Disputes, the 2007 Agreement, including, without limitation, Sections 4.1 and
5.4(b) thereof, shall remain unmodified and in full force and effect.
WHEREFORE, the parties voluntarily enter into this Agreement by signing below
effective the date first written above.
CSC LAND, LLC, a Colorado limited liability
company
By: JMJCSC LP, a Texas limited partnership, its
Manager
By: JMJ129 West LLC, a Texas limited
liability company, its General
Partner
By: - '
T' y L. anon ager
TOWN 0 ON
( By:
Ronald C. Wolfe, Mayor
3
ATTEST:
SETTLEMENT AGREEMENT
01-
This Agreement (`'Agreement") is entered into the day of April, 2008, by
and between CSC Land, LLC ("CSC") and the Town of Avon ("the Town").
RECITALS
WHEREAS, the Town and CSC have entered into a Second Amended and
Restated Development Agreement ("the 2007 Agreement") for The Gates dated August
24, 2007, and capitalized terms used in this Agreement without further definition have
the meanings given to them in the 2007 Agreement; and
WHEREAS, Section 4.3(a) of the 2007 Agreement provides that, should CSC be
delayed, hindered or prevented for any reason from proceeding in accordance with the
schedule of construction deadlines attached as Exhibit A to the 2007 Agreement (each, a
"Milestone Event"), CSC shall, within thirty (30) days after commencement of the delay,
provide the Town with written notice of the delay. the reason therefor and an estimate of
the expected duration of the delay; and
WHEREAS, on December 10, 2007, CSC provided written notice that it had been
delayed, hindered or prevented from completing landscaping by the Milestone Event date
of November 15, 2007, and requested that the Town approve an extension of the
Milestone Event date to December 6, 2007 (the "Requested Landscape Extension"); and
WHEREAS, the Town declined to approve the delay; and
WHEREAS, on February 12, 2008, the amount of $21,000 was deducted from the
Restoration Bond posted by CSC, and the amount thereof has not been replenished; and
WHEREAS, the remaining Milestone Events are as follows:
a. Complete hardware installation April 20, 2008
b. Call for "town final inspection June 27, 2008
C. Final Certificate of Occupancy issued .1Uly 31, 2008; and
WHEREAS, the Town is in possession of an Improvement Location Certificate
dated December 26, 2007, which. without stating a measurement point of reference,
identifies a peak elevation on The Gates building of 7524.4 to 7525 feet above sea level;
and
WHEREAS, disputes ("Milestone and Height Disputes") have arisen between
CSC and the Town in connection with: (a) the Milestone Events and the Requested
Landscape Extension, and (b) whether a peak elevation of 7525 feet is permitted by the
approved zoning and construction plans far the Gates (the "Height Dispute"); and
WHEREAS. CSC and the Town wish to resolve the Milestone and Height
Disputes and to memorialize the terms of such resolution in this Agreement.
NOW, THEREFORE, in consideration of the premises and agreements, covenants
and promises herein. the parties agree as follows:
1. Subject to compliance with the other provisions of this Agreement, each of
the Town and CSC hereby releases the other from any and all liability and claims of
whatsoever kind and nature, resulting from or in any way arising out of the Milestone and
Height Disputes prior to the date hereof.
2. At the time of execution of this Agreement. CSC shall pay to the Town the
amount of $21.000 to replenish the Restoration Bond posted by CSC and in settlement of
the Milestone and Height Disputes.
3. The Town waives compliance by CSC with any Milestone Event, except
the Milestone Event of "Final Certificate of Occupancy issued" (`'the Final C.O.
Milestone Event").
4. In the event that, without any fault or delay on the part of the Town, CSC
fails to meet the Final C.O. Milestone Event by July 31, 2008, CSC hereby elects. in
accordance with Section 4.3(b) of the 2007 Agreement, from and after the date of such
failure, the Town may assess against CSC liquidated damages of $1,000 per day (which
amount the parties agree to be fair and reasonable and not a penalty) and the Town may
deduct such amount per day from the Restoration Bond until the Final C.O. Milestone
Event is met.
5. Inasmuch as the approved building plans are ambiguous as to the height
limitation and CSC relies upon an interpretation of the plans which is not unreasonable,
the Height Dispute is resolved in favor of CSC on the basis of Avon Municipal Code
Section 17.12.040 (b). and the height of the building shall not prevent issuance of the
Certificate of Occupancy.
6. In connection with any financing, refinancing, sale, lease or other transfer
of interest in The Gates by CSC. its successors or assigns. CSC, any transferee or
potential transferee of CSC's interests, or any lender providing financing or refinancing
may request that the Town provide a letter confirming that The Gates is in compliance
with applicable zoning regulations. In light of the resolution of the Height Dispute, upon
receipt of any such request, and with the understanding that at the time of such request a
Certificate of Occupancy shall have been issued for The Gates, the Town will not raise
any issues regarding the height of The Gates project and, absent any documented zoning
violation occurring subsequent to the date of issuance of the Certificate of Occupancy,
will issue a clean zoning letter, stating that the Town is not aware of any unresolved
zoning code compliance issues.
7. This Agreement constitutes the entire understanding and agreement of the
Town and CSC with respect to the Milestone and Height Disputes only.
8. Except as expressly modified herein as a settlement of the Milestone and
Height Disputes, the 2007 Agreement, including, without limitation, Sections 4.1 and
5.4(b) thereof, shall remain unmodified and in full force and effect.
WHEREFORE, the parties voluntarily enter into this Agreement by signing below
effective the date first written above.
CSC LAND, LLC, a Colorado limited liability
company
By: IMJCSC LP, a Texas limited partnership, its
Manager
By: IM.1129 West LLC. a Texas limited
liability company, its General
Partner
By:
I imothy L. Barton, Manager
TOWN O ON
ry l~
By:
Ronald C. Wolfe, Mayor
ATTEST:
Page 1 of 1
Patty McKenny
From: John Dunn Udunn@jwdunnlaw.com]
Sent: Sunday, April 13, 2008 5:41 PM
To: Patty McKenny
Cc: Larry Brooks
Subject: RE: the Gates Settlement Agreement
It can be signed. Larry wanted to be sure CSC paid everything they owe. They have now done so.
John W. Dunn
Law Offices of John W. Dunn, LLC
Attorneys At Law
P. O. Box 7717
Avon, Colorado 81620
(970) 748-6400 Telephone
(970) 748-8881 Fax
jdunn@jwdunnlaw.com
Privileged/Confidential Information may be contained in this message and any related attachments. If you are not the
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computer and kindly notify the sender by reply email. Thank you.
From: Patty McKenny [mailto:PMckenny@avon.org]
Sent: Friday, April 11, 2008 4:56 PM
To: John Dunn
Cc: Larry Brooks
Subject: the Gates Settlement Agreement
Were there changes to this agreement or shall I have Ron sign the copy from the packet?
Someone mentioned to me after the meeting about holding off to have Ron sign this.
thanks.
Patty McKenny
Director Administrative Services
Town of Avon
PO Box 975 / 400 Benchmark Rd
Avon, CO 81620
email: pmckenny@avon.org
Phone 970.748.4035
Fax 970.949.9139
4/21/2008