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TC Ord. No. 1986-190 6 ORDINANCE NO. 86-19 AN ORDINANCE REPEALING ORDINANCE NO. 86-15 AND AUTHORIZING THE OBLIGATION OF THE TOWN TO ACQUIRE A PORTION OF LOTS 22, 23 AND 75, BLOCK 2 BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, FOR USE BY THE TOWN FOR PARKING PURPOSES. RECITALS A. It has been proposed to the Town that an agreement be entered into by a third party for purchase and sale of Lots 22, 23 and 75, Block 2, Benchmark at Beaver Creek Subdivision, Town of Avon, County of Eagle and State of Colorado ("the property") to be developed as follows: (1) A development site containing approximately 11.74 acres including approximately 6.33 acres contained in lots 23 and 75 and approximately 5.41 acres contained in lot 22. This total parcel will include Tract A which the Developer will improve for parking, and Tract B, the retail development site. (2) The Phase I retail development will consist of an anchor tenant satisfactory to the Town containing 50,000 square feet or more of gross leasable area and an additional 50,000 square feet or more of gross leasable area of support shops and service establishments. (3) Subsequent phases of construction may bring the center to a total of 140,000 square feet of gross leasable area including anchor tenants and support shops. B. The property will be subdivided and replatted into two tracts, designated as tracts A and B. C. The Town will agree to purchase tract A at such time as the anchor tenant is in occupancy. D. The Agreement authorized by Ordinance No. 86-15 has been breached and terminated by direction of the Town Council, and such Ordinance should, therefore, have no further force or effect. AVON BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF Section 1. That Ordinance No. 86-15 of the Town of Avon shall be and hereby is repealed. Section 2. That the Mayor and Town Clerk be and they hereby are authorized and directed to execute on behalf of the Town an agreement obligating the Town to acquire a portion of Lots 22, 23 and 75, Block 2, Benchmark at Beaver Creek Subdivision, Town of Avon for use by the Town for parking purposes, which agreement is attached hereto and incorporated herein as Exhibit "A," upon the terms and conditions set forth therein. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this 12th day of August, 1986, and a public hearing on this Ordinance shall be held at the regular - 1 - meeting of the Town Council of the Town of Avon, Colorado, on the 26th day of August, 1986, at 7:30 P.M. in the Municipal Building of the Town of Avon, Colorado. i Allan R. ttingham, ayor EST: 'Barbara R. os'ep: De y Town Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED this 26th day of August , 1986. R A Allan R. Nottingham 'Mayor ATTEST: Pytricia J. Dq le, Town ler - 2 - 0 0 AGREEMENT • • THIS AGREEMENT ("the Agreement") is entered into the 28th day of August , 1986, between the Town of Avon, a municipal corporation ("the Town") and Vail Valley Mall ("the Developer"). RECITALS A. The Developer has proposed to the Town that the Developer enter into an agreement for purchase and sale of Lots 22, 23 and 75, Block 2, Town of. Avon, County of Eagle and State of Colorado ("the property") to be developed as follows: (1) A development site containing approximately 11.74 acres including approximately 6.33 acres contained in lots 23 and 75 and approximately 5.41 acres contained in lot 22. This total parcel will include Tract A which the Developer will improve for parking, and Tract B, the retail development site. (2) The Phase I retail development will consist of an anchor tenant satisfactory to the Town containing 50,000 square feet or more of gross leasable area and an additional 50,000 square feet or more of gross leasable area of support shops and service establishments. (3) Subsequent phases of construction may bring the center to a total of 140,000 square feet of gross leasable area including anchor tenants and support shops. B. The property will be subdivided and replatted into tracts A and B, which tracts are approximately shown on Exhibit "A" attached hereto. C. The Town will agree to purchase tract A at such time as the anchor tenant is in occupancy. NOW, THEREFORE, it is agreed as follows: SECTION I. LIQUIDATED DAMAGE DEPOSIT A. Amount. It is expressly agreed that if the Developer defaults under the terms of this Agreement and the Town terminates this Agreement, the damages suffered by the Town will be substantial, uncertain, and difficult of proof. • 0 Such damages will consist of, among other things, a substan- tial delay in the completion of the project; the loss of other potential developers for the property; administrative and legal expenses; and the loss of the commercial and tax benefits that would have accrued to the Town and its resi- dents had the default not occurred. It is the intent of the parties to liquidate these damages in advance. The Developer has deposited or will deposit with the Town One Hundred Thousand Dollars to secure in part both the performance of this Agreement by the Developer and the payment of damages to be incurred by the Town in the event of default by the Developer. Such deposit shall be payable in installments of $75,000 and $25,000 in accordance with Exhibit B. The Town's interest in the full amount of the deposit shall be a secured interest, superior to the claims of all other parties, including, but not limited to, any lien holder, assignee, trustee in bankruptcy or any other creditor or person claiming by, through or under the Devel- oper. B. Disposition of Deposit. Upon termination of the Agreement as provided in section 2, 4, or 8 hereof, or in the event Developer fails to secure the mortgage financ- ing required by section 6 hereof, the deposit shall be returned to the Developer by the Town; provided, in the case of termination pursuant to section 4 hereof or in the event Developer fails to secure mortgage financing as reuqired by section 6 hereof, the amount of $20,000 shall be retained to reimburse the Town's costs incurred in connection herewith. C. Interest. If interest is earned such interest shall be retained by the Town. BONDS. SECTION 2. PURCHASE OF TRACT A AND ISSUANCE OF A. Upon issuance of a certificate of occupancy for the anchor tenant, as hereinafter provided, the Town shall be obligated to purchase tract A for a purchase price of $1,835,000.00. Such purchase price shall be paid within ninety days of issuance of the certificate of occupancy. Upon payment of the purchase price, the Developer shall convey tract A to the Town free and clear of liens and encumbrances by good and sufficient general warranty deed and at its expense deliver a policy of title insurance insuring the property in the amount of the purchase price. A contract for purchase and sale, attached hereto as Exhibit C, shall be executed contemporaneously herewith. B. In order to provide the funds for payment of the purchase price, the Town shall secure financing at a net effective interest rate not to exceed 12% per annum assuming Page 2 a twenty-year maturity. Provided that this Agreement and the obligation of the Town to purchase tract A may be declared null and void by the Town and the Developer's deposit returned in the event the Town is unable to secure financing at or below the interest rate stated. SECTION 3. TIME FOR COMMENCEMENT AND COMPLETION OF THE PROJECT. The construction of the project shall be commenced and, except as otherwise provided in this Agreement, shall progress and be completed in accordance with Exhibit B. SECTION 4. ACQUISITION OF PROPERTY FOR DEVELOPMENT. A. Acquisition. The Developer shall enter into negotiations for agreements for sale and purchase of the property ("the purchase agreements") providing for closing in accordance with Exhibit B. The Town must approve the form and substance of the agreements before they are signed. In the event the Developer fails to negotiate land agree- ments in accordance with Exhibit B, this Agreement may be terminated at the option of the Developer or the Town, without any advance notice and/or cure period which might otherwise be applicable. B. Resubdivision. Pending purchase by the Town pursuant to section 2 hereof, the property will be subdivid- ed and replatted at the Developer's expense as tracts A and B, which tracts are shown on Exhibit A attached hereto. SECTION 5. DESIGN CONCEPT; FINAL PLANS. All plans and specifications with respect to the development of the project will be in conformity with final plans, this Agreement, and all applicable state and local laws and regulations and shall at a minimum contain pro- vision for an anchor tenant to be approved by the Town and occupying not less than 50,000 square feet and support shops occupying not less than 50,000.00 square feet, fifty percent of which shall be retail space. The Developer shall submit to the Town a conceptual site plan and a preliminary site plan and layout ("the design concept") in accordance with the Town's ordinances and regulations as well as Exhibit B, which shall be subject to the reasonable approval of the Town. Unless deviations are specifically approved in writing by the Town, all submissions by Developer of its final plans shall conform with and shall be a logical development of the design concept. The Developer shall submit to the Town detailed plans, drawings, specifications, related documents and progress schedules ("final plans") for the project in accordance with the Town's ordinances and Page 3 • 0 regulations as well as Exhibit B. The final plans must be approved by the Town and found to be in accordance with this Agreement, the design concept and the ordinances and regulations of the Town prior to commencement of con- struction. Nothing contained in section 8 of this Agreement shall require the Town to issue a final certificate of completion for the total development until all construction required by this Agreement is completed in accordance with all approved final plans, this Agreement and Town ordinances and regulations. The Town shall, if all of the final plans originally submitted conform with the provisions of this Agreement, approve in writing all of such final plans and no further filing by the Developer or approval by the Town shall be required except with respect to any substantial change in such final plans. Whether or not a change is substantial shall be reasonably determined by the Town. The design concept and final plans shall be submitted to and receive the approval of the Town's planning and zoning commission. SECTION 6. EVIDENCE OF EQUITY CAPITAL AND MORTGAGE FINANCING. In accordance with Exhibit B, the Developer shall submit evidence of equity capital and commitments for financing necessary for the construction of the project to the Town for review, which material shall be subject to the reasonable approval of the Town. SECTION 7. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF IMPROVEMENTS. A. Covenants to Commence and Complete Con- struction. The Developer agrees for itself, its successors and assigns, and every successor in interest to the property or any part thereof, that the Developer, and such successors and assigns, shall promptly begin and diligently prosecute to completion the development of the property through the construction of the improvements thereon, and that such construction shall in any event be begun and completed in accordance with Exhibit B. It is intended and agreed, that such agreements and covenants shall be covenants running with the land and that they shall be, except only as other- wise specifically provided in the Agreement itself, to the fullest extent permitted by law and equity, binding for the benefit of the Town and enforceable by the Town against the Developer and its successors and assigns to or of the property or any part thereof or any interest therein. B. Progress Reports. Subsequent to the closing of the purchase of the property and until construction of the project has been completed, the Developer shall make reports, in such detail and at such times as may reasonably Page 4 • • be requested by the Town, as to the actual progress of the Developer with respect to such construction. C. Tract A. The Developer shall construct, at its own expense, surface-level parking on tract A including landscaping to a standard compatible with the project. Such parking shall be phased in accordance with Exhibit B. Upon conveyance of tract A to the Town, parking thereon shall be for the use of the general public; provided, the Developer, tenants of the project and their invitees shall have a non-exclusive right to the use thereof. Furthermore, the Developer shall have a right of ingress and egress through tract A to and from tract B. The provisions of this sub- section shall exist in perpetuity and shall be a covenant running with the land. SECTION 8. CERTIFICATE OF COMPLETION. A. Completion of Improvements. Promptly after completion of the project in accordance with all the pro- visions of this Agreement (including the date for completion thereof), Town will furnish the Developer with an appropri- ate instrument so certifying. Such certification shall be (and it shall be so provided in the certification itself) a conclusive determination for satisfaction and termination of the agreements and covenants in this Agreement with respect to the obligations of the Developer to construct the project and the dates for the beginning and completion thereof. B. Certificate of Completion of Improvements on Part of the Property. With respect to individual parts of Tract B which the Developer may convey or lease in accor- dance with this Agreement, as the improvements to be con- structed thereon are completed, the Town will, upon proper completion of the improvements relating to any such part, so certify to the Developer that such improvements have been made in accordance with the provisions of the Agreement. Such certification shall mean and provide (1) that any party purchasing or leasing such individual part pursuant to the authorization herein contained shall not (because of such purchase or lease) have any obligation with respect to the construction of the improvements relating to such part or to any other part of the property; and (2) that the Town shall not thereafter have or be entitled to exercise with respect to any such individual part so sold (or, in the case of lease, with respect to the leasehold interest) any rights or remedies or controls that it may otherwise have or be entitled to exercise with respect to the property as a result of a default in or breach of any provisions of the Agreement by the Developer or any successor in interest or assign. Page 5 0 • C. Recordation and Notice. Each certification provided for in this section 8 shall be in such form as will enable it to be recorded in the proper office for the recordation of deeds and other instruments pertaining to the property. If the Town shall refuse or fail to provide any certification in accordance with the provisions of this section, the Town shall, within thirty (30) days after written request by the Developer, provide the Developer with a written statement, indicating in what respect the Develop- er has failed to complete the improvements in accordance with the provisions of the Agreement, or is otherwise in default, and what measures or acts will be necessary, in the opinion of the Town, for the Developer to take or perform in order to obtain such certification. SECTION 9. TRANSFER - PROHIBITIONS AGAINST ASSIGNMENT AND A. Representations as to Development. The Developer represents and agrees that its purchase of the property and its other undertakings pursuant to the Agree- ment are, and will be used for, the purpose of development of the property and not for speculation in land holding. The Developer further recognizes that, in view of (1) the importance of the development of the property to the general welfare of the community and the Town; and (2) the substantial financing and other public aids that have been made available by law and by the Town; and (3) the fact that a transfer of interest in the Developer or of a part thereof, or any other act or transaction involving or resulting in a significant change in the ownership or evidence of ownership interest or with respect to the identity of the parties in control of the Developer or the degree thereof, is for practical purposes a transfer or disposition of the property then owned by the Developer; the qualifications and identity of the Developer, and its principals, are of particular concern to the Town. The Developer further recognizes that it is because of such qualifications and identity that the Town is entering into the Agreement with the Developer, and, in so doing, is further willing to accept and rely on the obligations of the Developer for the faithful performance of all undertakings and covenants hereby by it to be performed. Page 6 • • B. Prohibition Against Transfer of Interest in or Obligations of the Developer. For the foregoing reasons, the Developer represents and agrees for itself, and its successors and assigns, and the parties executing this agreement for the Developer represent and warrant, that: (1) As of the date hereof, the parties who are responsible for the conduct and control of the business and management of the affairs of the Developer are the persons previously identified to the Town. (2) Prior to the issuance by the Town of the certificate of completion as provided under section 8 hereof, and without the prior written approval of the Town (which approval will not be unreasonably withheld): (a) No person other than those so identified shall have any responsibility or authority for the conduct and control of the business or management of the affairs of the Developer. (b) No person shall be admitted as a new partner in substitution of or in addition to the parties in control of the business or the management of the affairs of the Developer. (c) There shall be no sale or other transfer of 10 percent or more of the stock of any corporate partner of the Developer; nor shall there be any other similarly significant change with respect to the identity of the parties in control of any such corporations, whether by increased capitalization, merger, corporate amendments, issuance of additional or new stock or classification of stock, or otherwise. The Developer and the parties signing the Agreement on behalf of the Developer represent that they have the authority to agree to the provisions of this paragraph on behalf of such corporations and stockholders and to bind them with respect thereto. (d) There shall dissolution, or merger any other entity of the the death of a partner Developer's partnership not be any voluntary or consolidation with Developer. Unless terminates the or results in a Page 7 0 ! transfer which violates this Agreement, the death of a partner of the Developer shall not constitute a default of this section 9. (e) Upon dissolution of the Developer, no distribution shall be made to any partner not bound by the Agreement. (3) The term "person," as used in this section, includes any individual, partnership, corporation or association. C. PROHIBITION AGAINST TRANSFER OF PROPERTY AND ASSIGNMENT OF AGREEMENT. The Developer further represents and agrees for itself, and its successors and assigns, that: (1) Except only (a) by way of security for, and only for, (i) the purpose of obtaining financing necessary to enable the Developer or any successor in interest to the property, or any part thereof, to perform its obligations with respect to purchasing the property and constructing the project under the Agreement, and (ii) any other purposes authorized by the Agreement, and (b) as to any individual parts of the property on which the improvements to be constructed thereon have been completed, and which, by the terms of the Agreement, the Developer is authorized to convey or lease as such improvements are completed, the Developer (except as so authorized) has not made or created, and that it will not, prior to the completion of the project as certified by the Town, make or create, or suffer to be made or created, any total or partial sale, assignment, conveyance, or transfer in any other mode or form of or with respect to the Agreement or the property, or any part thereof (except where a certificate of com- pletion has been given to the Developer for a part of the property) or any interest therein, or any contract or agreement to do any of the same, without the prior written approval of the Town. (2) The Town shall be entitled to require, except as otherwise provided in the Agreement, as conditions to any such approval that: (a) Any proposed transferee shall Page 8 have the qualifications and financial responsibility as reasonably determined by the Town, necessary and adequate to fulfill the obligations undertaken in the Agreement by the Developer (or, in the event the transfer is of or related to part of the property, such obligations to the extent that they relate to such part); (b) Any proposed transferee, by instrument in writing satisfactory to the Town and in form recordable in the land records, shall, for itself and its successors and assigns, and expressly for the benefit of the Town, expressly assume all of the obligations of the Developer under the Agreement and agree to be subject to all the conditions and restrictions to which the Developer is subject (or, in the event the transfer is of or relates to part of the property, such obligations, conditions, and restrictions to the extent that they relate to such part). (c) There shall be submitted to the Town for review all instruments and other legal documents involved in effecting transfer and shall be subject to the reasonable approval of the Town; and, if approved by the Town, its approval shall be indicated to the Developer in writing; Provided, that in the absence of specific written agreement by the Town to the contrary, no such transfer or approval by the Town thereof shall be deemed to relieve the Developer, or any other party bound in any way by the Agreement or otherwise with respect to the construction of the project, from any of its obligations with respect thereof. Provided also, that, prior to the issuance by the Town of the certificate provided for in section 8 hereof as to completion of the project, the Developer may enter into any agreement to sell, lease, or otherwise transfer, after the issuance of such certificate, the property or any part thereof, or interest therein. D. Information as to Interest Holders. In order to assist in the effectuation of the purposes of this section 9, the Developer agrees that during the period between execution of the Agreement and completion of the Page 9 project as certified by the Town: (1) The Developer shall promptly notify the Town of any and all changes whatsoever in the ownership of interests, legal or beneficial, or of any other act or transaction involving or resulting in any change in the ownership of such interests or in the relative distribution thereof, or with respect to the identity of the parties in control of the Developer or the degree thereof, of which it or any of its parties have been notified or otherwise have knowledge or information. (2) If there are corporate entities which comprise the Developer, the Developer shall, at such time or times as the Town may request, furnish the Town with a complete statement subscribed and sworn to by the President or other executive officer of such corporation or corporations setting forth all of the stockholders of the Developer and the extent of their respective holdings, and in the event any other parties have a beneficial interest in such stock their names and the extent of such interest, all as determined or indicated by the records of such corporation or corporations, by specific inquiry made by any such officer, of all parties who on the basis of such records own ten percent (100) or more of the stock in such corporation or corporations, and by such other knowledge or information as such officer shall have. Such lists, data and information shall in any event be furnished the Town immediately prior to closing of the purchase of the property and as a condition precedent thereto, and annually thereafter on the anniversary of that date until the issuance of a certificate of completion for all of the property. SECTION 10. MORTGAGE FINANCING; RIGHTS OF MORTGAGEES. A. Limitation Upon Encumbrance of Property. Prior to the completion of the project, as certified by the Town, neither the Developer nor any successor in interest to the property or any part thereof shall engage in any financ- ing or any other transaction creating any deed of trust or other encumbrance or lien upon the property, whether by express agreement or operation of law, or suffer any encum- brance or lien to be made on or attached to the property, except for the purpose of obtaining funds only to the extent necessary for purchasing the property and completing the project. The Developer (or successor in interest) shall Page 10 i • notify the Town in advance of any financing, secured by deed of trust or other similar lien instrument, it proposes to enter into with respect to the property, or any part there- of, and in any event it shall promptly notify the Town of any encumbrance or lien that has been created on or attached to the property, whether by voluntary act of the Developer or otherwise. B. Mortgagee Not Obligated to Construct. Notwithstanding any of the provisions of the Agreement, including but not limited to those which are or are intended to be covenants running with the land, the holder of any mortgage or deed of trust authorized by the Agreement (including any such holder who obtains title to Tract B or any part thereof as a result of foreclosure proceedings, or action in lieu thereof, but not including (1) any other party who thereafter obtains title to the property from or through such holder or (2) any other purchaser at foreclo- sure sale other than the holder of the mortgage itself) shall not be obligated by the provisions of the Agreement to construct or complete the improvements or to guarantee such construction or completion: Provided, that nothing in this section or any other section or provision of the Agreement shall be deemed or construed to permit or authorize any such holder to devote the property or any part thereof to any uses, or to construct any improvements thereon, other than those uses of improvements provided or permitted in the Agreement. C. Cry of Notice of Default to Mortgagee. The Town shall deliver notice or demand to the Developer with respect to any claimed breach or default by the Developer in its obligations or covenants under the Agreement. The Town shall at the same time forward a copy of such notice or demand to each holder of any mortgage or deed of trust authorized by the Agreement at the last address of such holder shown in the records of the Town. D. Mortgagee's Option to Cure Defaults. After any breach or default referred to in subsection C. of this section 10, each such holder shall (insofar as the rights of the Town are concerned) have the rights, at its option to be exercised within sixty days after receipt of notice, to cure or remedy such breach or default (or such breach or default to the extent that it relates to the part of the property covered by its deed of trust) and to add the cost thereof to the mortgage debt and the lien of its deed of trust: Provided, that if the breach or default is with respect to construction of the improvements, nothing contained in this section or any other section of the Agreement shall be deemed to permit or authorize such holder, either before or after foreclosure or action in lieu thereof, to undertake or continue the construction or completion of the improvements Page 11 r 0 (beyond the extent necessary to conserve or protect improve- ments or construction already made) without first having expressly assumed the obligation to the Town, by written agreement satisfactory to the Town, to complete, in the manner provided in the Agreement, the improvements on the property or the part thereof to which the lien or title of such holder relates. Any such holder who shall properly complete the improvements relating to the property or applicable part thereof shall be entitled, upon written request by such holder, to a certification or certifications by the Town to such effect in the manner provided in section 8 of this Agreement. D. Town's Option to Pay Mortgage Debt or Pur- chase Property. In any case, where, subsequent to default or breach by the Developer (or successor in interest) under the Agreement, the holder of any mortgage or deed of trust on the property or part thereof (1) has, but does not exercise, the option to construct or complete the improvements relating to the property or part thereof covered by its deed of trust or to which it has obtained title, and such failure continues for a period of thirty (30) days after the holder has been notified or informed of the default or breach; or (2) undertakes construction or completion of the improvements but does not complete such construction within the period as agreed upon by the Town and such holder (which period shall in any event be at least as long as the period prescribed for such construction or completion of the improvements in the Agreement), and such default shall not have been cured within thirty (30) days after written demand by the Town so to do, the Town shall (and every mortgage or deed of trust instru- ment made prior to completion of the improvements with respect to the property by the Developer or successor in interest shall so provide) have the option of paying to the holder the amount of the mortgage debt and securing an assignment of the deed of trust and the debt secured there- by, or, in the event ownership of the property (or part thereof) has vested in such holder by way of foreclosure or action in lieu thereof, the Town shall be entitled, at its option, to a conveyance to it of the property or part thereof (as the case may be) upon payment to such holder of an amount equal to the sum of: (a) the mortgage debt at the time of foreclosure or action in lieu thereof (less all appropriate credits, including those Page 12 0 0 resulting from collection and application of rentals and other income received during foreclosure proceedings); (b) all expenses with respect to the foreclosure; (c) the costs of improvements approved by the Town made by such holder. F. Town's Option to Cure Mortgage Default. In the event of a default or breach, prior to completion of improvements by the Developer, or any successor in interest, in or of any its obligations under, and to the holder of, any deed of trust or other instrument creating an encum- brance or lien upon the property or part thereof, the Town may at its option cure such default or breach, in which case the Town shall be entitled, in addition to and without limitation upon any other rights or remedies to which it shall be entitled by the Agreement, operation of law or otherwise, to reimbursement from the Developer or successor in interest of all costs and expenses incurred by the Town in curing such default or breach, and to a lien upon Tract B (or the part thereof to which the mortgage encumbrance, or lien relates) for such reimbursement: Provided, that any such lien shall be subject always to the lien of (including lien contemplated, because of advances yet to be made, by) any then existing deed of trust on the property authorized by the Agreement. SECTION 11. REMEDIES. A. General. Except as otherwise provided in the Agreement, in the event of any default in or breach of the Agreement or any of its terms or conditions by any party hereto, or any successor to such party, such party (or successor) shall, upon written notice from the other, proceed immediately to cure or remedy such default or breach, and, in any event, such default or breach shall be cured within thirty (30) days after receipt of such notice, except where this Agreement specifically provides for a different period of time. In case such action is not taken or diligently pursued, or the default or breach shall not be cured or remedied within the specified time, the aggrieved party may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the party in default or breach of its obligations. B. Termination by Town Up to Time Set for Closing of Purchase. In the event that Page 13 0 0 (1) prior to conveyance of the property to the developer and in violation of the Agreement (a) the Developer (or successor in interest) assigns or attempts to assign the Agreement or any rights therein or in the property, or (b) there is any change in the ownership of the Developer or with respect to the identity of the parties in control of the Developer or the degree thereof which violates this Agreement; or (2) the Developer does not comply with any of the times for performance specified in the Agreement (or as they may be extended by written and properly executed amendment hereto); then the Agreement and any rights of the Developer, or any assignee, or transferee, in the Agreement, or arising therefrom with respect to the Town, or the property, may, at the option of the Town, be terminated by the Town, in which event, as provided in section 1 hereof, the deposit and all accrued and unpaid interest thereon, if any, shall be retained by the Town as liquidated damages, and neither the Developer (or its assignee or transferee) nor the Town shall have any further rights against or liability to the other under the Agreement. C. Termination by the Town Upon Happening of Event Subsequent to Closing of Purchase. If subsequent to closing of the purchase of the property by the Developer and prior to completion of the improvements as certified by the Town: (1) except as provided in section 11F hereof, the Developer (or successor in interest) shall materially default in or violate its obligations with respect to the construction of the project (including the nature and the dates for the beginning and completion thereof) or shall abandon or substantially suspend construction work and if reasonable steps to cure, end or remedy any such default, violation, abandonment, or suspension are not undertaken within thirty (30) days (ninety (90) days, if the default is with respect to the date for completion of the project) after written demand by the Town so to do; or (2) the Developer (or interest) shall fail to pay assessments on the property successor in real estate taxes or when due or shall Page 14 ® • place thereon any encumbrance or lien unauthorized by the Agreement, or shall suffer any levy or attachment to be made, or any materialman's or mechanic's lien, or any other unauthorized encumbrance or lien to attach, and such taxes or assessments shall not have been paid, or the encumbrance or lien removed or discharged or provision satisfactory to the Town made for such payment, removal or discharge, within thirty (30) days after written demand by the Town so to do; or (3) there is, in violation of the Agreement, any transfer of the property or any change in the ownership of the Developer or with respect to the identity of the parties in control of the Developer or the degree thereof, and such violation shall not be cured within thirty (30) days after written demand by the Town to the Developer; in which event, as provided in sec- tion 1, the deposit and all accured and unpaid interest thereon, if any, shall be retained by the Town as liquidated damages, and neither the Developer (or its assignee or transferee) nor the Town shall have any further rights against or liability to the other under the Agreement. D. Town Option to Purchase All or a Portion of the Property. In the event of a default or a breach of this Agreement by the Developer, specifically including but not limited to a failure to perform according to the schedule established by Exhibit B with respect to either entering into or performing the purchase contract for the property, the Town shall have the right to purchase, either solely or in association with any other person or entity, all or a portion of the property. In anticipation of such remedy, the Town shall have the continuing right, prior to any default, to enter into any agreement of whatever nature, with any other person or entity, to purchase and/or develop all or a portion of the property upon the default of the developer to perform its obligations under this Agreement. In association with such right, the Town may negotiate such agreement(s) with the present owner of the property, or any part thereof, or any other person or entity, specifically including but not necessarily limited to an anchor tenant, simultaneously or in association with the Developer, and the Town may further require provision for and the actual assignment by Developer of any and all rights which the Developer may acquire in its effort to perform under this contract, including but not limited to purchase contracts for the property, or any part thereof, and the Developer shall neither object to nor interfere with such negotiations and shall cooperate in effecting such requirements. Page 15 • • E. Other Rights and Remedies; No Waiver by Delay. The Town shall have the right to institute such other actions or proceedings as it may deem desirable for effectuating the purposes of this section 11. The Town may also elect to sue for its damages. F. Delays; Waivers. Any delay by either party in instituting or prosecuting any actions or proceedings or otherwise asserting its rights under this Agreement shall not operate as a waiver of such rights or to deprive it of or limit such rights in any way; nor shall any waiver in fact made by such party with respect to any specific default by the other party under this Agreement be considered or treated a a waiver of the rights with respect to any other defaults by the other party under this Agreement or with respect to the particular default except to the extent specifically waived in writing. It is the intent of the parties that this provision will enable each party to avoid the risk of being limited in the exercise of the remedy provided in this Agreement by waiver, laches, or otherwise in the exercise of such remedy at a time when it may still hope otherwise to resolve the problems created by the default involved. G. Enforced Delay in Performance of Certain Obligations for Causes Beyond Control of Party. For the purposes of any of the provisions of the Agreement, neither the Town or the Developer, as the case may be, nor any successor in interest, shall be considered in breach of, or default in, its obligations under this Agreement with respect to the preparation of the property for development, or the beginning and completion of improvements, or progress in respect hereto, in the event of enforced delay in the performance of such obligations due to causes beyond its control and without its fault or negligence, including, but not restricted to, acts of God, acts of the public enemy, acts of the Federal or state government, acts of the other party (except contract demands), the affect of any condition precedent to any obligation of either party hereto over which such party has no control, acts of courts,fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or delays of subcon- tractors or materialmen due to such causes, it being the purpose and intent of this provision that in the event of the occurrence of any such enforced delay the time or times for performance shall be extended for the period of the enforced delay: Provided, that the party seeking the benefit of the provisions of this section shall, within twenty-one (21) days after such party knows of any such enforced delay, have first notified any other party, thereof in writing, and of the cause or causes thereof, and claims the right to an extension for the period of the enforced delay. Page 16 • • H. Rights and Remedies Cumulative. The rights and remedies of the parties to this Agreement, whether provided by law or by the Agreement, shall be cumulative and the exercise by either party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for any other default or breach by any other party. No waiver made by either such party with respect to the performance, or manner or time thereof, or any obligation of the other party or any condition to its own obligation under the Agreement shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligation of the other or condition to its own obligation beyond those expressly waived in writing and to the extent thereof, or a waiver in any respect in regard to any other rights of the party making the waiver or any other obligations of the other party. SECTION 12. MISCELLANEOUS. A. Titles of Articles and Sections. Any titles of the several sections and subsections of the Agreement are inserted for convenience of references only and shall be disregarded in construing and interpreting any of its provisions. B. Definitions. (1) The term "commencement of construction" shall mean, in the reasonable opinion of the Town, the undertaking of a continuous course of action to begin and complete construction of the improvements depicted in the approved final plans as defined in section 5 of the Agreement, including, but not limited to, each of the following: Production of a fully executed construction contract, reasonably satisfactory to the Town, by and between the Developer and a duly qualified building contractor for construction of all the improvements depicted in the approved final plans; a bond or letter of credit satisfactory to the Town securing performance by the contractor of such construction contract; issuance by the Developer to the contractor of a notice to proceed under such construction contract satisfactory to the Town; production of building permits for construction of such improvements or part thereof as shown on the approved final plans or components thereof approved by the Town, including evidence that all fees and costs associated therewith have been paid; excavation of the property for footings, foundations and/or Page 17 0 • caissons as shown on the approved final plans for actual construction of the improvements. Actions which are found by the Town to be mere preparation of the site for construction, or assembly and move-in of equipment or mere delivery of construction materials to the property will not constitute "commencement of construction" for the purposes of the Agreement. (2) The term "improvements" as used in the Agreement shall be deemed to have reference to the improvements as provided and specified in the final plans as approved. (3) The term "mortgage" shall include a deed of trust or other instrument creating an encumbrance or lien upon the property as security for a loan. C. No Third Party Beneficiaries. No third party beneficiary rights are created in favor of any person not a party hereto. D. Integrated Contract. It is intended by the parties that this Agreement be an integrated contract but that invalidation of any of its provisions by judgment or court order shall in no way affect any of the other pro- visions which shall remain in full force and effect. E. Binding Effect. This Agreement shall be binding upon the parties hereto, their successors, heirs and assigns. F. Severability. If any section, paragraph, clause, or provision of this Agreement shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause, or provision shall in no way affect any remaining provisions of this Agreement. IN WITNESS WHEREOF, the Town and the Developer Page 18 0 • have caused this Agreement to be duly executed on or as of the day first above written. TOWN OF AVON, a municipal corporation A2-12-viii-86 Page 19 Pia A0'13QN38 W Q2ItliiQ3 3? ,,..mm AY Mwalm O dnoiS leinjoaltyole ti". TIV W A TFIVA IIVA IS L g z O VJ Q ~O d O Q ~ \ U Us 0 r N / N H \ o~ ~ W a° H ~ x w m Q ' W \ I o ~ r.; 0'1 0'! v i. l rv O! OlI V1 f. ! Ol r !A V N u u V < N Qi gib O~ ~1 o I O S V Q m NO m V A Li ~ <m Vv N < m V U p < < C4 C 9 9 ~ 0 s m ~ a 1 ~ ~~..~Y nay ` ~ kAl g EXHIBIT "B" Schedule of Performance DUE DATES/ON OR BEFORE ACTION 08/12/86 Execution of land purchase on 11.74 acre development site 08/26/86 Execution of this Agreement and delivery of $75,000 of deposit 09/15/86 Conceptual site plan. 11/17/86 Commitment satisfactory to the Town for anchor tenant. 12/01/86 Commitments satisfactory to the Town for financing 12/15/86 Closing on the land and delivery of $25,000 of deposit 06/15/87 Building permit 03/01/88 Anchor tenant complete and open for business 50% of parking on Tract A completed 03/01/88 50,000 support shops construction complete 100% of parking on Tract A completed 06/30/88 50% occupancy of support shops with retail sales tax producing tenants EXHIBIT "B" • The printed portions of this form approved by the Colorado Real Estate Commission (SC 27.2-81) THIS IS A LEGAL INSTRUMENT. IF NOT UNDERSTOOD, LEGAL, TAX OR OTHER COUNSEL SHOULD BE CONSULTED BEFORE SIGNING. VACANT LAND CONTRACT TO BUY AND SELL REAL ESTATE (Remedies Include Specific Performance) ag ,J 1. The undersigned agent hereby acknowledges having received from Town of Avon the sum of $ 1 • 0 0 , in the form of cash , to be held by seller , as earnest money and part payment for the following described real estate in the Town of Avon County of Eagle , Colorado, to wit: See Exhibit "A" attached hereto together with all easements and rights of way appurtenant thereto, and all improvements thereon and all fixtures of a permanent nature currently on the premises except as hereinafter provided, in their present condition, ordinary wear and tear excepted, and hereinafter called the Property. -~eeee~(s} Town Of Avon 2. The undersigned (as joint tenantsitenaRts ereinafter called Purchaser, hereby agrees to buy the Property, and the undersigned owner(s), hereinafter called Seller, hereby agrees to sell the Property upon the terms and conditions stated herein. 3. The purchase price shall be U.S. $ 1 , 8 3 5 , 0 01 , payable as follows: $ 1 . 0 0 hereby receipted for; $1,835,000 payable in cash at closing W-- 1F a note i5 to be made payable to Seller as partial or Full payment oF t lie purchase 11 bean: i....abie b Pur-ehaser- without -tt n` ent se4er, 8. Cost of any appraisal for loan purposes to be obtained after this date shall be paid by Purchaser No. SC 27-2-81. Contract to Buy and Sell Real Estate (Vacant Land) { Bradford Publishing, 5825 W. 6th Ave.. Lakewood, CO80215-(303)'_33-6900-5-81 A current 9• commitment for title insurance policy in an ampunt a ua to the ur ase priceG,• at Seller's .aptwu and expense, shall be furnished to Purchaser on or before n1i ays ~e~ore ClOS}lnq Seller will deliver the title insurance policy to Purchaser after closing and pay the premium thereon. 10. The date of closing shall be the date for elivery of deed as provided in paragraph 11. The hour and place of closing shall be as agree upon . 11. Title shall be merchantable in Seller, except as stated in this paragraph and in paragraphs 12 and 13. Subject to payment or tender as above provided and compliance by Purchaser with the other terms and provisions hereof, Seller shall execute and deliver a general good and sufficient g warranty deed to Purchaser on March 1 , 19 8 8 , or, by mutual agreement, at an earlier date, conveying the Property free and clear of all taxes, except the general taxes for the year of closing, and e3feept , free and clear of all liens for special improvements installed as of the date of Purchaser's signature hereon, whether assessed or not; free and clear of all liens and encumbrances e5teept except the following restrictive covenants which do not contain a right of reverter;- of record ! and except the follom4ng specific recorded and/or apparent easements: and subject to building and zoning regulations. I 12. Except as stated in paragraphs 11 and 13, if title is not merchantable and written notice of defect(s) is given by Purchaser or Purchaser's agent to Seller or Seller's agent on or before date of closing, Seller shall use reasonable j effort to correct said defect(s) prior to date of closing. If Seller is unable to correct said defect(s) on or before date of closing, at Seller's option and upon written notice to Purchaser or Purchaser's agent on or before date of closing, the II date of closing shall be extended thirty days for the purpose of correcting said defect(s). Except as stated in paragraph is 13, if title is not rendered merchantable as provided in this paragraph 12, at Purchaser's option, this contract shall be void and of no effect and each party hereto shall be released from all obligations hereunder and all payments and things of value received hereunder shall be returned to Purchaser. 19, Any eneumhr-Anee r-equiFed to be paid may be paid at the time Rf sk-WPFAent f+am the preeeeds of this tr-2AR2Gtion or- f4!era any Othei, -Reur-ee. Pi-evided, how@-vep, at the eption of either party, if the total indebtedness seeo ed by lieRs on the Property emeeeds the pur-ehase price, thir eantract shall be unid and of no aff4act 2nd each p2rty 14. General taxes for the year of closing, based on the most recent levy and the most recent assessment, prepaid rents, water rents, sewer rents, FHA mortgage insurance premiums and interest on encumbrances, if any, en4 shall be apportioned to date of delivery of deed. 15. Possession of the Property shall be delivered to Purchaser-w► at closing, subject to the following leases or tenancies: none 16. In the event the Property is substantially damaged by fire, flood or other casualty between the date of this contract and the date of delivery of deed, Purchaser may elect to terminate this contract; in which case all payments and things of value received hereunder shall be returned to Purchaser. 17. Time is of the essence hereof. If any note or check received as earnest money hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed as herein provided, there shall be the following remedies: (a) IF SELLER IS IN DEFAULT, (1) Purchaser may elect to treat this contract as terminated, in which case all payments and things of value received hereunder shall be returned to Purchaser and Purchaser may recover such damages as may be proper, or (2) Purchaser may elect to treat this contract as being in full force and effect and Purchaser shall have the right to an action for specific performance or damages, or both. (b) IF PURCHASER IS IN DEFAULT, (1) Seller may elect to treat this contract as terminated, in which case all payments and things of value received hereunder shall be forfeited and retained on behalf of Seller and Seller may recover such damages as may be proper, or (2) Seller may elect to treat this contract as being in full force and effect and Seller shall have the right to an action for specific performance or damages, or both. (c) Anything to the contrary herein notwithstanding, in the event of any litigation arising out of this contract, the court may award to the prevailing party all reasonable costs and expense, including attorneys' fees. 18. Purchaser and Seller agree that, in the event of any controversy regarding the earnest money held by broker, unless mutual written instruction is received by broker, broker shall not be required to take any action but may await any proceeding, or at broker's option and discretion, may interplead any moneys or things of value into court and may recover court costs and reasonable attorneys' fees. it I _ I r 19. Additional provisions: This agreement is contingent upon compliance by Seller with all obligations contained in and Purchaser's securing financing in compliance with, agreement between the parties hereto executed this same date, the provisions of which are incorporated herein by reference thereto. . If this proposal is accepted by Seller in writing and Purchaser receives notice of such acceptance on or before 19, this instrument shall become a contract between Seller and Purchaser and shall inure to the benefit of the heirs, successors and assigns of such parties, except as stated in paragraph 7. Purchas r T0 OF AVO Date. Purchaser By: - Date Purchaser's Address (The Following geetion to be completed by Seller and Listing Agent) . SeRet-s eeptstheAb9V r a.3 of to Ju rn c the GOMM;-Rion, -Md the n6 &I ~i Sel(e~r Seller ~ i V j! 000 Seller's Address • STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) 0 NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 7:30 P.M. ON THE 26TH DAY OF AUGUST, 1986 AT THE TOWN HALL FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 86-19, SERIES OF 1986: AN ORDINANCE REPEALING ORDINANCE NO. 86-15 AND AUTHORIZING THE OBLIGATION OF THE TOWN TO ACQUIRE A PORTION OF LOTS 22,23 AND 75, BLOCK 2 BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, FOR USE BY THE TOWN FOR PARKING PURPOSES, A copy of said ordinance is attached hereto and is also on file at the office of the Town Clerk and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this ordinance. This notice given and published by order of the Town Council of the Town of Avon. Dated this 13th day of August, 1986. BY /s/ POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON AUGUST 13, 1986: THE MAIN ENTRANCE TO THE POST OFFICE THE MAIN ENTRANCE TO CITY MARKET THE PESTER GAS STATION; AND THE MAIN ENTRANCE TO THE MUNICIPAL BUILDING LOBBY erh