TC Res. No. 2008-02 Regarding extension of a milestone event for completion of construction of the gates formerly the chateau st.claire planned unit developmentTOWN OF AVON, COLORADO
RESOLUTION NO.' 08-02
SERIES OF 2008
A RESOLUTION REGARDING EXTENSION OF A, MILESTONE EVENT FOR
COMPLETION OF CONSTRUCTION-OF THE GATES, FORMERLY THE CHATEAU
ST. CLAIRE PLANNED UNIT DEVELOPMENT
WHEREAS; the Town'and CSC Land, LLC ("CSC") have entered into a
Second Amended and Restated Development Agreement ("the Agreement") for The
Gates dated August 24, 2007; and
WHEREAS, 'Section 4.3(a) of the Agreement provides that, should CSC
be delayed, hindered or.prevented from proceeding in accordance with the schedule of
construction 'deadlines attached asExhibit A to the Agreement for. any reason, it 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, Section 4.3(a) of the Agreement further provides that the
Town shall approve or disapprove the delay in its sole and absolute discretion; 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 to December 6, 2007.
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Resolution No. 08-02 the Gates Milestone
Page 1 of 2
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL
OF THE TOWN OF AVON, COLORADO, as follows:
1. Extension of the Milestone Event of Completion of Landscaping until
December 6, 2007, is not approved.
ADOPTED the' 8th day of January, 2008.
~N OF A~pN
Ronald C. Wolfe, Mayor
SE
ATTEST:
"y7 Kenny o Clerk
Resolution No. 08-02 the Gates Milestone
Page 2 of 2
MEMORANDUM
TO: TOWN COUNCIL
FROM: TOWN ATTORNEY
RE: THE GATES
DATE: January 8, 2008
On the Council agenda is a request by CSC Land to approve an extension of.the
landscaping completion deadline for The Gates from November 15, 2007, to December 6, 2007.
Following this memorandum are copies of correspondence received from CSC Land and the
relevant section of the Second Amended and Restated Development Agreement for The Gates
dated August 24, 2007.
As the Council is well aware, the development. agreement establishes milestones for.
completion of construction, and Section 4.3(a) of the agreement allows the Council, in its "sole and
absolute discretion," to approve or disapprove of any delay with respect to any milestone. When
• the development agreement was last amended in August, Section 4;3(b) was added to afford the
developer the option to elect to be assessed liquidated damages of $1,000 per day. The developer
has been reminded of this option, but it has expressed a preference to come before the Council to
explain the.delay and ask approval of it.
If the delay is not approved, CSC will have the option to elect to pay the liquidated
damages. Unless and until that election is made, the project wilt be shut down. If the election is
made, CSC will, have 30 days to make payment. If it does not pay, the penalty will be withdrawn
from the restoration bond, which withdrawal will have to be replenished within 30 days thereafter.
Failing replenishment, the project will be shut down.
The Council should be aware that the Town has recently received an improvement
location certificate (required by the Town's building code) which establishes that the building ridge
line exceeds by three feet what is permitted by the development standards for The Gates. The
Gates' attorney has indicated that an application,to amend the development standards will be filed
which, if approved by the Town Council, will cause the development standards to conform to the
actual height of the ridge line.
The Council should also note that only one Milestone Event, other than call for final
inspection (June 27, 2008) and issuance of a certificate of occupancy (July 31, 2008), remains,
which Milestone Event is an April 20 deadline for completion of hardware installation. It has been
suggested to the attorney for The Gates that this remaining Milestone Event be addressed at this
time and it is anticipated that elimination of that deadline will be a part of the application which
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will be filed.
Town staff recommends that the request not be approved. Representatives of CSC
represented to the Council in July that the timing of the revised Milestone Events was both
sufficient and necessary to complete the project and that the provision for liquidated damages was
included in the agreement to prevent CSC from having to ask the Council for additional relief and
incurring staff time in the process.
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4.2 Maintaining Active Permit. The foregoing notwithstanding, Owner shall
maintain an active building permit pursuant to the current provisions of Title 15, Municipal
Code, on the schedule attached hereto as Exhibit A, subject to excusable delays as
contained in Section 4.3 provided that in no event shall excusable delays permit the
schedule to be extended past the fourth anniversary of the Effective Date.
4.3 Excusable Delays.
(a) Should the Owner _ be delayed, hindered or prevented from
proceeding in accordance with the schedule of deadlines attached hereto as Exhibit A for
any reason, Owner shall, within thirty (30) days after commencement of the delay, provide
the Town Department of Community Development (with a copy to the Town Attorney)
with written notice of the delay, the reason therefor and an estimate of the expected
duration of the delay. The Town shall approve or disapprove the delay and, if it is
approved, the period thereof, in its sole and absolute discretion. If the delay is approved by
the Town, Owner shall thereafter use all commercially reasonable efforts to minimize its
impact and duration. Delays approved by the Town may permit the milestone dates on
Exhibit A to be extended, but in no event shall any Delays approved by the Town permit
the schedule to be extended past the Completion Deadline. Nor may any delays approved
by the Town be utilized to claim an extension of the term of this Agreement or the term of
the vested property rights established under this Agreement.
(b) ' Notwithstanding the foregoing, i) in the event CSC fails to meet
• any construction milestone, at its option it may elect to be assessed liquidated damages of
$1,000 per day (which amount the parties agree to be fair and reasonable and not a
penalty); ii) the penalty so assessed, if not paid within 30 days, shall be deducted from
the cost restoration bond provided for in Section 3.4 hereof; iii) the amount deducted
shall be replenished within 30 days of the deduction; and iv) upon failure of CSC to
replenish the cost restoration bond, the Town may proceed as though it has disapproved a
request by CSC for an extension of the particular milestone event.
ARTICLE V
DEFAULTS AND REMEDIES
5.1 Default by Town. A "breach" or "default" by the Town under this
Agreement shall be defined as the Town's failure to fulfill or perform any material
obligation of the Town contained in this Agreement.
5.2 Default by Owner. A "breach" or "default" by Owner shall be defined as
Owner's failure to fulfill or perform any material obligation of Owner contained in this
Agreement.
5.3 Notices of Default. In the event of a default by either party under this
Agreement, the non-defaulting party shall deliver written notice to the defaulting party of
such default, at the address specified in Section 6.8, and the defaulting party shall have
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CSC LAND, LLC
December 10, 2007
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Mr. Larry Brooks
Town Manager
Town of Avon
PO Box 975
Avon, CO 81620
lbrooks@avon.org
RE: The Gates at Beaver Creek (Project')
Mr. Brooks,
Pursuant to the Second Amended and Restated Development Agreement for The Gates
("Agreement"), dated August 24, 2007,under Article 4.3 EXCUSABLE DELAYS, we
are required to provide written notice of delay to the deadlines in Exhibit A of the •
Agreement specifically the November 15, 2007 deadline for completion of the
landscape for the Project.
As of November 15, 2007 all required trees, shrubs and re-seed were installed,
however, our landscape contractor informed us that the perennials were not available.
We subsequently located these perennials elsewhere in Colorado and had them shipped
to the Project. As of Thursday, December 6, 2007, the landscape was complete. The
contractor on the Project called for an inspection on December 6, 2007.
The Project is progressing well and our current schedule indicates a Certificate of
Occupancy sometime in April, 2008, significantly before the required July 31, 2008
deadline.
We respectfully request that, because as of the November 15 deadline the required
landscaping was substantially complete, and is now 100'/6 complete, the Town of Avon
approve the delay in accordance with Article 4.3 of the Agreement. Please advise as
soon as possible as to the result your inspection and your approval or disapproval of the
delay.
One Hickory Centre, 1800 Valley View Lane, Suite 150 LB4,,Dallas, TX US 75234 •
Phone (972) 385-9934 Fax (972) 241-4484 www.jmjholdings.com
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CSC LAND, LLC
We appreciate your patience and assistance with the Project and recognition of our
efforts to complete the Project prior to all future, required deadlines.
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CC:John Dunn, Town Attorney, Town of Avon, PO Box 1077, Avon, Colorado 81620
JDunn@avon.org
Eric Heidemann, Town of Avon, PO Box 975Avon, CO 81620 eheidemann@avon.org
•
• One Hickory Centre, 1800 Valley View Lane, Suite 1501-84, Dallas, TX US 75234
Phone (972) 385-9934 Fax (972) 241-4484 www.jmjhoidings.com
TOWN OF AVON, COLORADO
RESOLUTION NO. 08- Q~
A RESOLUTION REGARDING EXTENSION OF A MILESTONE EVENT FOR
COMPLETION OF CONSTRUCTION OF THE GATES, FORMERLY THE
CHATEAU ST. CLAIRE PLANNED UNIT DEVELOPMENT
WHEREAS, the Town and CSC Land, LLC ("CSC") have entered into a
Second Amended and Restated Development Agreement ("the Agreement") for The Gates"
dated August 24, 2007; and
WHEREAS, Section 4.3(a) of the Agreement provides that, should CSC be
delayed, hindered. or prevented from proceeding in accordance with the schedule of
construction deadlines attached as Exhibit A to the Agreement for any reason, it 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, Section 4.3(a) of the Agreement further provides, that the Town
shall approve or disapprove the delay, in :its sole and absolute discretion; 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 to December 6, 2007.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL
OF THE TOWN OF AVON, COLORADO, as follows:
1. Extension of the Milestone Event of Completion of Landscaping until December
6, 2007, is approved/not approved.
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ADOPTED the 8th day of January, 2008.
Ronald C. Wolfe, Mayor
ATTEST:
Patty McKenny, Town Clerk
TOWN OF AVON, COLORADO
RESOLUTION NO. 08-02
•
SERIES OF 2008
A RESOLUTION APPROVING EXTENSION OF A MILESTONE EVENT
FOR COMPLETION OF CONSTRUCTION OF THE GATES, FORMERLY
THE CHATEAU ST. CLAIRE -PLANNED UNIT DEVELOPMENT
WHEREAS, on December 10,2007, CSC Land,.LLC ("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 to December 6, 2007, pursuant to the Amended and
Restated Development Agreement between it and the Town dated as of August 24, 2007;
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL
OF THE TOWN OF AVON, COLORADO, as follows:
1. Extension of the Milestone Event of Completion of Landscaping until December •
6, 2007, is approved.
ADOPTED the 8th day of January, 2008.
Ronald C. Wolfe,. Mayor
ATTEST:
Patty McKenny, Town Clerk
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December 12, 2007
970-7484000
970-949-9139 Fax
Relay recognized
www.avon.org
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Tim Barton
CSC Land, LLC
One Hickory Centre
1800 Valley View Lane, Suite 150 LB4
Dallas TX 75234
Avon... a smoke-free community
Post Office Box 975
400 Benchmark Road
Avon, Colorado 81620
Re: The Gates at Beaver Creek
Dear Mr. Barton:
This will acknowledge receipt of your letter dated December 10, 2007, wherein you
seek approval of a delay in your company's compliance with the November 15, 2007 deadline for
completion of landscaping contained in the Second Amended and Restated Development
Agreement for The Gates (formerly Chateau St. Claire) dated August 24, 2007.
Your request will be presented to the Town Council for their consideration at the
next meeting of the Council on January 8, 2008.
Yours truly,
4" arty B , Town Manager
LB:ipse
CC. Mr. Dunn
Mr. Heidern
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CSC LAND, LLC
December 10, 2007'
Mr. Larry Brooks
Town Manager
Town of Avon
PO Box 975
Avon, CO 81620
lbrooks@avon.org
RE: The Gates at Beaver Creek ("Project")
Mr. Brooks,
•
Pursuant to the Second Amended and Restated Development Agreement for The Gates
("Agreement"), dated August 24, 2007,under Article 4.3 EXCUSABLE DELAYS, we
are required to provide written notice of delay to the deadlines in Exhibit A of the is
Agreement specifically the November 15, 2007 deadline for completion of the
landscape for the Project.
As of November 15, 2007 all required trees, shrubs and re-seed were installed,
however, our landscape contractor informed us that the perennials were not available.
We subsequently located these perennials elsewhere in Colorado and had them shipped
to the Project. As of Thursday, December 6, 2007, the landscape was complete. The
contractor on the Project called for an inspection on December 6, 2007.
The Project is progressing well and our current schedule indicates a Certificate of
Occupancy sometime in April, 2008, significantly before the required July 31, 2008
deadline.
We respectfully request that, because as of the November 15 deadline the required
landscaping was substantially complete, and is now 100% complete, the Town of Avon
approve the delay in accordance with Article 4.3 of the Agreement. Please advise as
soon as possible as to the result your inspection and your approval or disapproval of the
delay.
One Hickory Centre, 1800 Valley View Lane, Suite 150 L84, Dallas, TX US 75234 •
Phone (972) 385-9934 Fax (972) 2414484 www.jmjholdings.com
We appreciate your patience and assistance with the Project and recognition of our
efforts to complete the Project prior to all future, required deadlines.
d, LLC
CC:John Dunn, Town Attorney, Town of Avon, PO Box 1077, Avon, Colorado 81620
JDunri@avon.org
Eric Heidemam Town of Avon, PO Box 975Avon, CO 81620 eheidernann rr avon.org
One Hickory Centre, 1800 Valley View Lane, Suite 150 LB4, Dallas, TX US 75234
Phone (972) 385-9934 Fax (972) 2414484 www.jmjholdings.com