TC Ord. No. 1986-150 •
ORDINANCE NO. 86-15
AN ORDINANCE 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.
BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
AVON 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."
INTRODUCED, PASSED ON FIRST READING, APPROVED AND
ORDERED POSTED, this 4th day of June,1986 and a public
hearing on this Ordinance shall be held at the regular
meeting of the Town Council of the Town of Avon, Colorado,
on the 24th day of June, 1986 at 7:30 P.M. in the Municipal
Building of the Town of Avon, Colorado.
Allan R. pNottingCha;V&, Mayor
INTRODUCED, PASSED ON SECOND READING, APPROVED AND
ORDERED POSTED this 24th day of June 1986.
All &n R, dl,tingham, yor
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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 24TH DAY OF
JUNE, 1986 AT THE TOWN HALL FOR THE PURPOSE OF CONSIDERING THE
ADOPTION OF ORDINANCE NO. 86-15, SERIES OF 1986:
AN ORDINANCE AUTHORIZING THE OBLIGATION OF THE TOWN TO ACQUIRE
A PORTION OF LOTS 22, 23, AND 75, BLOCK 2, BENCHMARK AT BEAVER
CREEK, 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 4th day of June, 1986.
POSTED AT THE FOLLOWING PUBLIC PLACES WITH
ON JUNE 9, 1986:
THE MAIN ENTRANCE TO THE POST OFFICE
THE MAIN ENTRANCE TO CITY MARKET
THE PESTER GAS STATION; AND
THE MAIN ENTRANCE OF THE MUNICIPAL BUILDIN
EXi4ls1T A
TRACT -/'A..
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NOTE
f. ALL 01ME1VS1OA15 ARE
APPi20X11WA7-E NOT F/NAL.
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AC,RFFMFNT
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THIS AGREEMENT ("the Agreement") is entered into
the 24th day of June , 1986, between the Town of Avon, a
municipal corporation ("the Town") and ,
("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.
Such damages will consist of.., among other things, a
substantial 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 residents had the default not occurred. It is
the intent of the parties to liquidate these damages in
advance. The Developer has deposited with the Town Seventy
Five Thousand Dollars ($75,000.00) to secure in part both
the performance of this Agreement by the Developer and the
payment of the damages to be incurred by the Town in the
event of default by the Developer.
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
Developer.
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
financing required by section 6 hereof, the deposit shall be
returned to the Developer by the Town.
C. Interest. The Town shall use its best
efforts to earn interest on the deposit, and if interest is
earned such interest shall be promptly paid to the
Developer; provided, however, if, and for so long as, the
Developer is in default under this Agreement, the accrued
interest, if any, 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 $1,600,000.00. 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
a twenty-year maturity. Provided that this Agreement and the
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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
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
agreements in accordance with Exhibit B, this Agreement may
be terminated at the option of the Developer or the Town.
B. Resubdivision. Pending purchase by the Town
pursuant to section 2 hereof, the property will be
subdivided 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. 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. 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 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 construction. 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
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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.
SECTION 7. COMMENCEMENT AND COMPLETION OF
CONSTRUCTION OF IMPROVEMENTS.
A. Covenants to Commence and Complete
Construction. 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 otherwise 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
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
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
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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 subsection 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
provisions of this Agreement (including the date for
completion thereof), Town will furnish the Developer with an
appropriate 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
accordance with this Agreement, as the improvements to be
constructed 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.
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
Developer 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
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necessary, in the opinion of the Town, for the Developer to
take or perform in order to obtain such certification.
SECTION 9. PROHIBITIONS AGAINST ASSIGNMENT AND
THAN.iWK H _
A. Representations as to Development. The
Developer represents and agrees that its purchase of the
property and its other undertakings pursuant to the
Agreement 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 cr 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.
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.
Prior to the issuance by the Town of
the certificate of completion as provided under
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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 not be any voluntary
dissolution, or merger or consolidation with
any other entity of the Developer. Unless
the death of a partner terminates the
Developer's partnership or results in a
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.
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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
completion 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 tc any such approval that:
(a) Any proposed transferee shall
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
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the Town, expressly assumed all of the
obligations of the Developer under the
Agreement and agreed 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 thev relate
to such part). f
(c) There shall be submitted to the
Town for review all instruments and other
legal documents involved in effecting
transfer; 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
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 an1V 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,
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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 (10%)
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
financing 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 encumbrance 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 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 thereof, 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
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through such holder or (2) any other purchaser at
foreclosure 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. Copy 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
(beyond the extent necessary to conserve or protect
improvements 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
Purchase 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
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(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 instrument 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 thereby, 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
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
encumbrance 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
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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
(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);
Page 13
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, shall,
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 successor in
interest) shall fail to pay real estate taxes or
assessments on the property when due or shall
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
Page 14
section 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. 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.
E. 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.
F. 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, 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 subcontractors 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)
Page 15
E
•
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.
G. 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
Page 16
E
•
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
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
provisions 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 17
CJ
•
have caused this Agreement to be duly executed on or as of
the day first above written.
TOWN OF AVON, a municipal
corporation
B
Developer
ATTEST:
By
Witness
A2062586
Page 18
L_ J
EXH/B/T A
NOTE
ALL O/MENS/OA15 ARE
APPii20X1MA7-E NOT F/NAL.
2. TRACT :4 "4REA = f50, 000 ± 5. F.
•
1 1
1
~P
t
.t i
LOT BLOCSC 2 B,~/ . 40
1 7S BEAVE,e " C,Q7'E"E,-- S V K "4 T
t
TRAC 7/ ",5
1 / LOT
/ 22
LOT
23
\ / t
Ti2AC A
55"
EXHIBIT "B"
DUE DATES/ON OR BEFORE
Schedule of Performance
ACTION
06/24/86 Execution of this Agreement
and delivery of $75,000 deposit
08/01/86 Execution of land purchase
on 11.74 acre development site
09/01/86 Conceptual site plan.
09/15/86 Commitment satisfactory to the
Town for anchor tenant
10/01/86
Commitments satisfactory to the
Town for financing
10/15/86
Closing on land
03/01/87
Building permit
09/01/87
Anchor tenant complete
and open for business
50% of parking on Tract A
completed
12/01/87
50,000 support shops
construction complete
100% of parking on Tract A
completed
03/01/88
50% occupancy of support shops
with retail sales tax producing
tenants
EXHIBIT "B"
'I he printed portions of Ihis form appro: ed h~ the
I olorado Heal F:-tale Commission i se' 2i-2-nU
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)
June
24, vo C,
1. T) It- undersigned agent ht, rehy acknowledges having rev, i\'t•d I I oIII Town of Avon
_tile su"Itil: 1.00 .ill tlit- fwillof
'
-cash _ to be held by seller
}dtXtM~@SbG?dDCb 'Xt3tBD4{D024XI?GDC2[~[OCBD4QX as eat•nest money alid hart pay'nlent for the fulluwint; Jr•., ril-d I -;tl
estate in tilt- .____Town-_of --.Avon---.--. County of---_-Eagle .l'olorado,to\kit:
See Exhibit "A" attached hereto
tovvther with all easements aIld rights of way appurtenant therelo• I I, I all iit llit oveme•lit s thereon and :ill 1'f Ire
permanent nature currently on the premises except as hereinafter provided. in their present con liti~rn, r llu:u .
wear and teat~exeepted, and hereinafter called the Property.
2. The undersigne(INX3DXXX--ToWln of_AVon------ -
Zx~?flf~]QQQC8pb >~04~DBaQCEi?DBOUBbC~erainafter called Purchaser, hcri•liy agrees to hay the Propi•rl.. :'Ild II
undersigned owner(s), hereinafter called Seller, hereby agrees to sell the Prulie•rty upon tilt" terms and colldil i,ll _
stated herein.
:i. The purchase lit•ice shall LP 1!.s. $ 1,600,001 . payable ns follows: T 1.00 ht•n•hyr~rr•il~t~~l f~r:
$1,600,000 payable in cash at closing
XAft21AZ tV0Z(JS,:
"*k)jc *wM%c xxXhMxxx
'2AFLwlzzJ0zWzxamMixomozzKnwzLX8"1w3VzLV4)wJZ.K pD~b44S9QaDOa0.~aOC~H18R4~xi8r}G13b4zw 3?~7,
gltLx~'Ritwit~¢+ xffi lF~f+4~~#09C2 tl%*wwgj0Z ~m~x~s~aacalaotomkctzDavix~aa~ipo8xtt~b4'aIC21 0Qalrutx,0 m•r.
eS~~'!4Zt jtg9~F#SX~XiSK2Db bftWX S~BIYcB]Q,8rx~KaX$4XzXzKIzKpiXZIKXXXXXXXXXXX:cX
21XZXOXif Xt?s1iD@7QT1 k:bWW=0 ta10"tZXt ]6ZXtZbQZ,IMV& KtZ2-K2XTZ6E2hKZZ0ZX0YJWZiVK.YVA2~{1
21 J
ki~c+~a ada►axeso d~4osooe>kw~iad X2WZKtWtt02VZlXaX
zxtr~ttZace x~a(r~xIdD6QdtXd~® netax D6 4a.~t:~ EwjzwaeKZ412.4 IX3N51.\c11KzxZacax s.,z
D?C`B'XB~CB~D~B X~ Pi0tt8L74 O:~t'X $]t 8B XiD80C &~Z Z z X z X Z X z X z z x z X z X z XtF*IX pj X12 i?S (IW ?G G III ~r I
a I zxzxZXZXZxzlkX•xBCiMzzhRti 8tX<$O6~Peffi;XiHtYeX]4 J~Eu`{~?GSs3{t8'St2iZ{e'~i2Cez dJd iGXzzzXZ
a'A~E74 X~9{$X~E~b '?~DffR1501~X~P;~COJx 8C~7[4~1fdBQ~~HIXZTIZXMi} ZX-ZQX0a;AZAX7,VNZ4iV4?~-',IZXZ4i XZ
37VO tWK-7Jf2 "1 V0Xr1'WZ?QODt aetx:eDa►$sosuat o~~aa*900(LXMK4RIK to y'-ZX Z 004 a x lq XZ N HIXZ" 41li;6 z Z N X
2,302 4 Nil k=dmWXtwh4CtEQQ>omd(exibO =(zf iwjgaam00,ZKExxztXWg yjD 0KV,
z7xjhtlz"xW zixtnft $x s~~cQW ii§bXfift' WEN T{IT~Xiaac~ce¢asg>txm, ,axaXrAZYwr_
~ x ~~~~x ~~t'~~x ~clxtx~acae~aca~atta fat~sf~l>ax
H. Cost of any appraisal for loan purposes to be obtained after this datt.:hull ht• paid hF Pu I: (A1r3: I
~~u, tit • ? 1-•~-K 1. I'., nt rnrt to nu. and all li•~:d F:.I ,a t• I~~ara nl Landl
HctJI~uJ 1•uhh.huil;. it nih I.A..•,•.••I,tliru.'I.: i4i~l r. nu
EXHIBIT "C"
i •
r x.zx~za4~acia•x~•x~btlaaa~ataaa~•xta~a•Q~~tcCis~ cu>1 rer~~
~)d~f.arX~p~ptPt;• •omnu na,•n or title insur:encc polio } ir: ,~i~
ni• ant calual Io the purcla:ese price, nt Scllr•r's}dg4~@}f+lq gtvpe•nsc, shall be furnished Io Porch:asrr on or lief r
ninety -days.-before. closing- xkkxx k ex x~i~fe ;d~ia ar_aaax>?4rs> xsx►~ctie II, r %%it
deliver the title insurance policy to Purchaser after closing and pay the premium t lu•rcon.
11). The date of closing shall he the dale fur delivery of deed its provided in paragraph 11. "Pile hour and place of
elosirtgshaii be as-agreed .upon._
1 I. 'Pill.- shall he merchantable in Seller, except as stated in this paragraph and in paragraphs 12 and M. Subject
I-, paynte•nt. or• tender as above provided and compliance by Purchaser with the other terms and provisions hereof.
lellr r shall execute and deliver it good :aid sufficient general warranty deed to Purchaser on
Decenber 1 . 1!1_$7_, or, by mutual agreement, at an earlier date, ctill%eirig the Property free :lord
clear of all taxes, except the general taxes felt- the year elf closing}Q{Z.X7-X x XZXZXZXZXZXZXZXXZ>D-':
fret- :end deal. of all liens for- special improvements installed as of the dale .)f Purchaser's signature hereon, wha•I her
:rss,•ssod or not: free and clear of all liens and encumbrance.-D(=
ecpt the fulloxving,restr•ictive covenants which du not. contain a right of reverterx of record
:uad excclat} C specific recorded and?or apparent easements:
:in,l sell jvvt to huildingand Zoning regulations.
12. Except as stated in paragraphs 1 I and 13, if title is not merchantable and written notice of defect(s) is given by
I'urch:aser or Purchaser's agent to Seller or Seller's agent on or before date of closing, Seller shall use reasonable
eltort to correct said defect(s) prior to date of closing. If Seller is unable to correct said defect(s) on or. before date of
I„siIIl :at Seller's option and upon written notice to Purchaser or Purchaser's agent on or before date of closing, the
I:ate .~f closing shall be extended thirty days for the purpose of correcting said defect(s). Except as stated in paragraph
1:,, it title is not. rendered merchantable as provided in this paragraph 12, at Purchaser's option, this contract shall Lc
%,,id and -d' nu effect and each party hereto shall he released from all obligations hereunder and all payment.; and
I hiogs ~.f v:alu(, received hereunder shall he returned to Purchaser.
z X ~ ~9a x ~ x~ oa teas tax a>sdtai€~!c 13 M►s od aura 3~rE ~Da~ ~K Yhc a~a,r$x,~' ~s ~ ~ ®nf z, k ~7tr~ ~ ~c ►~xea ~c ~ xSc S~ 77
~ ~e z ~ ~ zx ~x•>r>~z ~'x~eQ ~~~a •x~e~aeic'l~ad~~a~'xta ~tztlb>~ x fi~xaa ~ofi; od t~ ¢ v~eo4'z of ~Ixalllxr8 ~ ~~>x•t~~•x;? x
~•x as ~ x ~ ~¢'a x~~~ #~~~a*+a~~-a~+a sdaa~x►r~a~erg~e ~ha~~a~xg xsbx~~hea ~ot~ ~1>~xtUwa~eoc$~a~ x:a•g ~:x >~z x
x-A X.-AN ~k hx•A.x42--m2!~tawzi$dnWspamXI1Bxq3vadFX30 taddMTNlZtX axt tOM9:;Z)k)ZlkIZ Xall34EcAZPOZo4>a~rozas~toz
1Pxtk z xo:k 9Si'xrzkvv XTz z x
11. t;,•nr cal taxes for tilt, year of closing, haled on the most recent Ivvy and the- most recent assessment, prcl.;aid
r,•it t:, %\:I 14-1 rents, st•wer rents, FIIA mortgage insurance premiums and interest on r•ncuIll hr:urces, if all y LCQQ{
shall he apport ioned to date of deliver. ofd--.1.
l:a. Possession of the Property shill be delivered to Purchasers at closing,
< bject to t he following lease. or tenan ies: none
If;. In the event the Property is substantially damaged by fire, flood or other casualty between the date raj' tliis
,nt I:o t and the date of delivery of deed, Purchaser may elect to terminate this contract: in which case :all payno•nt
nd thing. of• value received hereunder shall] be returned to Purchaser.
IT, Time is of the essence hereof. If any note or cheek received its earnest money hereunder or any of her payni-•a~
Tae hereunder is not paid, honored or tendered when (tile, or if any other obligation hereunder is not perf.-i mcd
hcrcin provided, there shall be the following remedies:
(:I) I F SE:LLERIS IN DEFAULT, ( I) Purchaser may elect to treat this contract as terminated, in which va".
:ill payments and things of value received hereunder shall be returned to Pureh:tser and Purchaser nuev rev c .•r
such damages as may be proper, or (2) Purchaser may elect to treat this contract as hciog in full force and elf- t
and Purchaser- shall have, the right to an action for specific performance ur damages, or both.
(Iat I F PURCHASER IS IN DEFAULT, (1) Seller may elect to treat this contract as terminated, in which ca~~;all p:aynovnts and things of value received hereunder shall he forfeited and retained ell behalf of Seller :and Sclli•r
may recover such damages as may- he proper, or (2) Seller may- elect to treat t his contract its living in full farce and
effect and Seller shall have the right to an action for specific performance .)r damages, or hot h.
(c) Anything to the contrary herein notwithstanding, in the event of ally litigation arising out of this
cent ract, t he court stay award to the prevailing party all reasonable costs ill(] expense, including attorneys' teI•s.
In. Purchaser- and Seller agree that. Ili the event of any controversy regarding the earnest money held by lit rkr•r.
till lr ss mutual written ilist roctiun is received by broker, broker shall not he rertuirod to take any :u tiros but ouav :e grit
;any proceeding. or at broker's option and discretion, may inter-plead any moneys or things of value lilt.) court :and 111:1.
rr•covcrcourt costs and reasonable attornevs' fees.
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.
20. If this proposal is accepted by Seller in writing and Purchaser r,•ceiees notice of such accept.u -.n ~u I„•(,r,
- 19 _ this instrument shall become a contract between seller and I'urchn~, r ;11,1 ;h;til
inure to the benefit of the heirs, successors and assigns Of such parties, e%c,•pt as stated in paragraph
I'u rrhusrr D.te
Pu,chanrr
Purchaser's Address
B~dDL~?Qf~1d~1ls~)?Ofa?~5&~Gi
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op
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jCON[ OS j I I ti v
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PARTIAL SECOND oE-
MI-1 fln
POST a' FLOOR PLAN
OFFICE 0 149111119
NORTH
6,000 s.f./~
0 ~
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LOWER LEVEL PARKING
NORTH POST OFFICE
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PARTIAL SECOND O E hall,
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POST FLOOR PLAN NORTH
OFFICE ,
6,000 S.//
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LOWER LEVEL PARKING
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NORTH POST OFFICE
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46,181 S. F. \
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ICJ 1 1 L 1 1_1 t 11 l j L! T Y MAJK L T EZUb 1. JIL,uti. 4u,~3ti J. r .
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NOTE OU
ALL DIMENSIONS ARE APPROXIMATE
O 11
NOT FINAL p x r.
4 TRACT "A" and TRACT` "B" . PACKING
A ` REQUIREMENTS SHALL BE 4 CARS 11000 G.S.F.
;q 3. TRACT A AREA 150,000 ±S. F.
r.
i
R ay
r
1
Er 1
e
000 c L
-LOT 75 ate.
~S
65 1 TRACT B3
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LOT 23 1 /
/
/ LOT 22
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♦
T A A T T1 V" '1'1 A N 1"T'l T\ T A 'A 'r
ffl'NA U-1T. PLAIN LAND
,p
EXHIBIT
n NORTH • .
E.
- - 6/16/86
$s 3 s F
¢ iy, f 6 '.'fin ~ k - - • - -