TC Ord. No. 1987-01ORDINANCE NO. 87-1
SERIES OF 1987
AN ORDINANCE REPEALING ORDINANCE NO. 86-19
BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON
Section 1. That Ordinance No. 86-19 of the Town
of Avon shall be and hereby is repealed.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND
ORDERED POSTED, this 13th day of January, 1987, 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 10th day of February, 1987 at 7:30 p.m. in the
municipal building of the Town of Avon, Colorado
/s/
Allan R. Nottingham, Mayor
ATTEST:
/s/
Patricia J. Doyle, Town Clerk
INTRODUCED, PASSED ON SECOND READING, APPROVED AND
ORDERED POSTED this 10th day of February, 1987.
/s/
Allan R. Nottingham, Mayor
ATTEST:
/s/
Patricia J. Doyle, Town Clerk
TO: The Honorable Mayor and Town Council
FROM: William D. James, Town Manager
DATE: February 6, 1987
SUBJECT: Shopping Center Agreement
Please note that the changes to the Agreement for the
shopping center are underlined.
AGREEMENT
THIS AGREEMENT ("the Agreement") is entered into
the 11th day of February, 1987, between' the TOWN OF AVON, a
municipal corporation ("the Town"),and SZYMANSKI PARTNER-
SHIP, a general partnership, ("the Developer").
RECITALS
A. The Developer has proposed to the Town that
the Developer enter into an agreement for purchase and sale
of Lots 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 6.33 acres. This total
parcel will include Tract A which the
Developer will improve for parking, and Tract B,
the retail development site.
(2) The retail development will
consist of an anchor tenant satisfactory to the
Town containing 50,000 square feet or more of
gross leasable area and at least an additional
20,000
square feet of gross leasable area of support
shops and service establishments.
B. The property will be subdivided and replatted
into tracts A and B, to be determined as part of the sub-
dividing process before closing on the property.
C. The Town will agree to purchase tract A.
NOW, THEREFORE, it is agreed as follows:
SECTION_ 1. 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 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 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 Develop-
er.
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, biit 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 sections 2, 4`or 8 hereof, or
in the event Developer fails to secure the mortgage financ-
ing required by section 6 hereof, or fails to secure a
commitment for.an anchor tenant, the deposit shall be
returned to the Deve oper by t e Town; provided, in the case
of termination pursuant to section 4 hereof or in the event
Developer fails to secure mortgage financing as required by
section 6 hereof, the amount of $50,000 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.
SECTION 2. PURCHASE OF TRACT A AND ISSUANCE OF
BONDS.
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 $1,500,000.00. Such purchase price shall be paid in
or occupancy and S-/_U,000 upon opening or the anc
tenant's business.
B. In order to provide the funds for payment of
the purchase price, the Town shall issue its bonds at a net
effective interest rate not to exceed 12% per annum assuming
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'►+5 6onois
deposit returned in the event the Town is unable to
-f-J~a~-i~- at or below the interest rate stated.
P
nds in
tually
satisfactory escrow,4eft on or before the date..of closing
on the property. The escrow agent will be instructed in
orm to disburse-such procgedg
wa th
paragraph A hereof. The-deed provided for in Para rap-h
hereof shall, upon payment of the first installment.of
Page 2
$750,000.00, be deposited with the escrow agent, who
further instructed'to deliver the deed to the Town in
exc tinge for the full amount of-the purchase price.
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. 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, 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 20,000; 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 ordi-
nances 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 ("the 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 con-
tained in section 8 of this Agreement shall require the Town
Page 3
to issue a final certificate of completion-for the total
development until all construction required by this Agree-
ment 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 submit-
ted conform with the provisions of this Agreement, approve
in writing all of such final plans and ho,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.
The Town acknowledges that in connection with
negotiation of this agreement certain conceptual.plans hav
been rev-i_e_w_e3. Without limiting the requirements Of the
preceding paragraph, it is the intention o the parties to
proceed on the basis of a eneral concepts suggested-by
those plans. The Town further agrees to expeditiously
process applications of the Developer submitted hereunder.
SECTION 6. EVIDENCE OF MORTGAGE FINANCING.
In accordance with Exhibit-B, the Developer shall
submit a letter or statement signed by a lender stating that
said lender has committed to make a loan to developer and
further stating (i) the amount of the loan, (ii) the es-
timated loan closing date, (iii) the funds are to be used to
acquire the property and construct thereon a'shopping
center, (iv) the Developer's credit has been approved and
(v) there are only customary conditions including possible
lender equity participation.
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.
Page 4
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, 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 subject to reasonable
regulations which the Town will adopt; provided, the Devel-
oper, 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), the 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 Agree-
ment with respect to the obligations of the Developer to
construct the project and the dates for the beginning and,
completion thereof, and shall extinguish all covenants-
relating to Tract B herein.
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
Page 5
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 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. PROHIBITIONS AGAINST ASSIGNMENT AND
TRAM9VRR_
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
principals, are of
Developer further
qualifications and
the.Agreement with
further willing to
and identity of the Developer, and its
particular concern to the Town. The
recognizes that it is because of such
identity that the Town is entering into
the Developer, and, in so doing, is
accept and rely on the obligations of the
Page 6
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.
(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 Develop-
er.
(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
identify 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 Agree-
ment 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 a voluntary
dissolution, or merger or consolidation with
any other entity of the Developer. Unless
the death of a partner terminates the-Devel-
oper's partnership or results in a transfer
Page 7
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
have the qualifications and financial
Page 8
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
project as certified by the Town:
Page 9
(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 result-
ing in any change in the ownership of such inter-
ests or in the relative distribution thereof, or
with respect to the identity of the parties in
control of the Developer or the degree thereof, or
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 sub-
scribed and sworn to be the President or other
executive officer of such corporation or corpo-
rations 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 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
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
Page 10
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 or 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 undertthe 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 right, 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 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
Page 11
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,
to construct or
to the property
deed of trust or
and such failure
(30) days after
informed of the
but does not exercise, the option
complete the improvements relating
or part thereof covered by its
to which it has obtained title,
continues for a period of thirty
the holder- has been notified or
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
resulting from collection and application of
rentals and other income received during
foreclosure proceedings);
(b) all expenses with respect to the
foreclosure;
Page 12
(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
(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
Page 13
(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 'llF.
hereof, the Developer (or succe-ssor 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 sixty
(60) days after written demand by the Town so to
do; or
Page 14
(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 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.
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.
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 suchlrights 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
Page 15
by the other party under this Agreement be considered or
treated as 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-df 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, of the delay and of the cause or causes thereof,
and claims the right to an extension for the period of the
enforced delay.
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
Page 16
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, 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 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 foot-
ings, 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
Page 17
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,'thd 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
have caused this Agreement to be duly executed_ on or as of-'
the day first above written.
TOWN OF AVON, a municipal
corporation
ATTEST:
By
SZYMANSKI PARTNERSHIP, a
general partnership,
By
General Partner
ATTEST:
Witness
A2020687
Page 18
"VT?T"] 19 T
Schedule of Performance
DUE DATES/ON OR BEFORE
02/11/87
03/06/87
04/15/87
05/01/87
12/15/87
Provided, Developer may, by
15, 1987, extend deadlines'
thirty (30)_ days so long as
ori4inal-deadlines.
ACTION -
Execution of this Agreement
and delivery of balance of
deposit .
Commitment satisfactory to the
Town for anchor tenant
Commitments satisfactory to
the Town 'for financing
Closing on the property
Certificate of occupancy for
anchor tenant and 20,000 sq.
ft. support shops and parking on
Tract.A completed triggering
$750,000 payment for parking
EXHIBIT "B"
I L.• p..n..•d I•..IU, n..,I IIn. Inrm npp,..• • .I b. tL. I
I d.-..1.• 11.•:.1 1.,1 a1.. 1 x l t
THIS IS A LEGAL INSTRUMENT. IF NOT UNOERSIOOO, LEGAL, TAX OR OTHER COUNSIL SHOULD BE CONSULTED BEFORE SIGNING
VACANT LAND
CONTRACT TO BUY AND SELL REAL ESTATE
(Remedies Include Specific Performance)
. III
1. The undem~il;ned hgent hereby ar•knntcledt;os 11.11 iii(; recoiced 811111 Z~own of Avon
the punt of 1 . 0 in t he f1" 111 of -
Cash fit t.r•ht•I.II.Y seller
In raker, in hrr,kr•r'r: r I.ornw nr 1111.114•.• nero"nt, a..•;u n.->t IIU.IteN• :111.1 pat t pa}•1111.11( ("r I Ill, IrrllnmcinK dr 1 I II.ed t t•al
o~lateinlh,._.Town of Avon ('nllIt I'r•f Lagle ('nluradn,tit wit:
See Exhibit "A" attached hereto
1„} rl h1•1, wit 11 all vavt•tnetlt. and right. 11f W;IY .11,1,11111.11:111t lhet et n, and all itnprovenn•nls (hervoll and .111
a 11VI.11r:uu•nl n:pure currently on the Ill 1•mi.1•. o~repl :1~ holVi Wirt el I,r.1cith-41. in their Ill e~ent londitirin, urdi11:11-3.
Ivearand tear excepted. and helri11afte1. callrrl the PIr,pv? IN.
2. 'I'll(undersigned-pal, stlicI Town of Avo11
-(Nt1-,i11111t •IE•I1N I1l!+X14`tINI1l H-•Itl-P11I111iM+i1.1 ;--I11•l einaft er callo.l I'll r01:1,er, het (.ll}• at!rees tr, huy the Prollf-1-1 V. and 11,1;.
111141or~i>;ned o~enor{~I. heteinafler callyd tielle• hrtrhe :u Tree to •:,•11 the hopertN it pm) the lelnec :11111 r•n11,hlinn`
R1:11er1 herein.
a. "'ht purcltaci price ~Iwll he lf,.l. $ 1 , 500 , 001 p.1yahle :k~ f1dIl m~: ` 1 • 00 h(.?vb • rereiIII-1 f•.r;
$1,500,000 Payable in cash at closilig
-F'riec-•tu-illrlcldr:
-tr 114111141
-=..-J f as ne~lYdr,tin i+1 (r I I t 1 1 u t r -.1 l.i.•.it_!x-J',sr.:luax+.e rF~x«e~i., pFru►1E.1J~• ettr,E+4iliKe-t++~rIrr)
' t ?44-6-1I. U_i11. ot_uualiVtt Mild usueurufs~trs}uicrlJ-}s: tJw~+~s,l, rt rud
:44.) litly tit,tltt~attrLrL.n.r =1a..~+l~ welt lens-i . t,+.l ,rl+T.r. ytt&nivitrlwfitrr-_._ _
1,t,u...t..l...,:ar►111,~...•..ut.i.u~LYlita.l!-1.e-~utlJ-ual.l-ut+i+l-11.1141-r►Jl-l.+w~+t+rnt~_H+ra-
t++!«.,Jaat11 l,w..tau-tt.•.1 t~.tta 1u,w•:
t lii++i'"~L-t„1...... _.}111...1 J' r-H•YH 11i 7iJtIt1~-~~t/=-H--11+1111-Ha t1111pI1„tl-1I
.~L,i.....I «n.l «~,•«r.. 1 1 nv I I 1 w I, tut 1 tvln I t 1+•.• tfe~1J s•tr•.•.•.1-~ --=----autd.{'Ll-:u1_inlsaLaa.i-calN
11111 !•etrtit•rrsl•--------- r" 1 , r,r 11 11 e_1,,,,+, 1„~,e.~~ ~,1111-t-st-}t,t_•+_I,ruYiteiutty-f.,r-:t-vlute•rJ-ryuil ~nr ~•NrFet•J•le~
+ . Jt.
•n.. .,i.,. If 1 h.• 1..,, 1 1.'r n . nI 1. n 1 tut n 1111 1 1 i 11 i e. Lut .I I hi o.•nt r"et i. erH,dil i.Ut1•.1 1EI~..11 „1.1-~•~„~";tyucJ-r,
it I* NO— Ifillililt- 'by --~+++r'•`+ ti~.+-i•H•••I-1•.• t•. • t~tatul~..,wl~.li.u,~.,L~u,1~l+r.tttii~-+:•~-uLute~ Itra:u~l--Iu.usa,l.•.1.._.
..I.1.. r.. 1..11.-r-u.+~}.uw~al~..r~uLl~:tt~,te-uLu!_.t-lsr-_.{~~~~Jtt4:u~-}uicc,_L_lti.o..r+.ttl~rmt-•4htril-Yn,4-
' 111 tv1if Lull 4-4,11-111. L
9. ('opt "f anv altl,r•aisal fnr hall I'llrj .,<er 11. Ill. iIwd :1fte1 t hi, d:1lr ~I1:111 Ill- paid I,Y Purch ser
EXHIBIT "C"
Nu. 27.2-81. 1 111111 n• 1 I,. Itn~ I ` . 11 it.. .I 1 -1 , 1 I ...I.
A current
9. AIf -il+e+be++ebwf 144*►44" hr 1'rs+pw Lp,<i+rLifiud L"41uLu, "at XUrl kUt ,•1rrnrnitmVIA fur title- insur:urrr policy in :car
.1111jrnnt ee ua1 to the rur• -lease prix .It : ellois.aa}atiaa+s..,:uu1 e~pen~e. 'hall l,e• furnished to Pnrchaser nn or bef•ore
ninety days ~eore c~os11nng
- __,I9.. _.~~,tr41Nt•-rle+ct-+:Lufurr►i,.lte:aiaitillw~nzur:►usasututui}•••••ne Seller will
deliver the title insurance policy to Purchaser after vInsing aIt d pay the pr emiurtr the reon.
10. The date of ('losing shall he the date for elite•ry of deed a., proynl••d in paragraph 11. The Mine- and glare 14
rlusingshuube as agreed upon
11. Title shall be merchantable in Seller, except as stated in this para►;raph and in paragraphs 12 and Ia. Subject
to payment or tender as above provided and compliance ht• Purchaser with the other terms and provisions hereof,
Seller shall execute and deliver it good and sufficient general Warranty deed to I'll r•rlme yr nn
_ _ March 1 - 1;1 88_, or. by mutual agreement, at an earlier date, conveying the Property free :11rt1
cI&ar of all taxes, except the getter aI taxes for the year of c•loei It g. +ttr.I e•vrr}+t------------_~
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 fill(] encUnlbran ve r-tC1 1 1
except the following restrictive covenants which do nut contain it right of r•everter~ of record
and except the W116%wing specific recorded and'or apparent easenu•nts:
rind subject to building and zoning regulations.
12. Except as stated in paragraphs 11 and 1:1, if title is not merchantable and written notice of de fee t(s) is given h}
Purchaser or Purchaser's agent to Seller or Seller's agent on ill. before date (if closing, Seller shall use reasonable
effort to correct said defect(s) prior to date of closing. If Seller is linable. to correct said defect(s) on or before date of
closing, at Seller's option and upon written notice to Purchaser- or Put chaser's agent on or befe re date of closing, the
date of closing shall be extended thirty days for the purpose- of correcting said defect(s). Except as stated in paraj:raph
1:1, if title is not rendered merchantable as provided in this paragraph 12, cat Purchaser's option, this vontr•art shall he
void and of no effect and each party hereto shall lie released front all obligations hereunder and all payments and
things of value received hereunder shall be returned to Purchaser.
rwnt ~Iie lit .+r«r«iw-44-444+
or. Co-4- m mi;wothe+ rw++e+ri Vf"j4lr+64twwe% -I,. 1 tlrr,+t.tion oF•riN+rr-t+*trta,--*f the- te,(nI-imlrbIf-dif
-Me~w++~+sl•!+v-4iwae:-e►ra_i.ltr-Rsia}+Nti-;.•i+xN•+a+al+:-bhwpe+rvlta««-prises, t 1 t i. co o t•rx.~i .-hw 11 1+..~a.is! aria!-uf-aru of f«c:t urea! k:ul t'}+ii• t}:
lit! reto 911 fill tie releftsed fr"I'A fill t+l+XeFi+++rrt he?.t it 1411-1- t>,) all tart4r+te~+r F.-++~u} (lt+rrga:atMalirv rrKaiwul luu~+utuh aa:lr:ell
14. General taxes for the year of closing, hased on the most recent le 'V anti tit(- must recent assessment., prepaid
rents, water rents, sewer- rents, FIiA mortgage inset atic•e premiums and interest oil vilcullibrallves, if any,
shall be uppo►•tiune•d to date of delivery of deed.
15. Possession of the Property sliall be delivered to Purchaser i it at closing,
subject to the following leases of- tenancies:
none
16. In the event the Property is substantially (i:unagrrl by fire, i'lood or other casualty between the date of this
contract and the (late of delivery of deed, Purchaser may elect to terminate this contract; ire which case :ell payments
and things of value received hereunder shall be returned to Purchaser.
17. Title is of the essence hereof. If any note or check ret•eivod as varnest money hereunderor any other paynn•nt
due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed is
herein provided, there shall he the following remedies:
(a) IF SELLER IS IN DEFAULT, (1) Purchaser- may elr(•t to U eat this contract aX te•rnlinated, in which rase
all payments :end things of value received hereunder shall hr r e•tur no41 to Iurchaser and I'ui•rhaser nutY reroter
such damages as may be proper, or Purchaser may elect to t r•eat t his contra(L as bring in full forte and effort
and Purchaser shall have the right to an action fur specific per fornt:ute c or damages, or both.
(b) IF PURCHASER IS IN DEFAULT, (1) Seller may elect to treat this contract as terminated, ire which rase
all payments and things of valtae• received hereunder- shall h.• for forted and retained on behalf of Seller and Sellet•
may re-cover such damages as may he pr caper, or Seller. lira} elect to t r rat this cant r art :ts bring in (till torte :card
effect and Seller shall have the right to :tor action for specific pvi-I'm roam e or damages, of. hot h.
(c) Anything to the contrary herein notwithstanding, in the ete•nt of any litigation arising otrt of this
contract, the court may award to the prevailing party all reasonable rusts and expense, i►u Inding attorneys' fees.
111. Purchaser and Selfer agree Hutt, in the event of ally rout rot er .y r vf~al ding the e:u n•st money held ht lu okrr.
unless mutual written instruction is received by broke-r•, broker- shall tint be required to take any action but may await
any proceeding, or rut broker's option and discretion. may inter plead anF moneys or things of value into rotor t :11141 may
recover court costs and reasonable attorneys' 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, arjr.eement 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 receives notice of such acceptance on or before
N. this instrunu•nt shall heCUnle a contract between Seller and Purchaser and shall
inure to the henefit of the heirs, suceessors and assigns of such parties, oxcl•pt as stated in paragraph 7.
-RP401-f- - - -
Date
I'ur•chaser'sAddress _ -
--(The f) l}e>,ritk,-.ret*e►trM~►eee+mple-leci
_ .''-~i--r-•'r-.:r:~k.rpjrbr:bh~l>k~wla•rilyror.ali-l►i« ~1r>,}•,.f , r'r :uul:y~u:~y.
to pay WA 6.4-UH491
will this t fk+~f~P FkiA,,-NNW W44R kki#I iliin kR Af-Vallio F;hail-=
'
NW Uljf~1+.
614m
his! 'f++ ^-1. lke>i-'m Aj•Mikk - owikl-,4sl..Ll
Ilrl
STATE OF COLORADO )
COUNTY OF EAGLE ) SS
TOWN OF AVON )
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
10TH DAY OF FEBRUARY, AT THE TOWN HALL, FOR THE PURPOSE OF
CONSIDERING THE ADOPTION OF ORDINANCE NO. 87-1, SERIES OF
1987:
AN ORDINANCE REPEALING ORDINANCE NO. 86-19
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 is given and published by order of the Town Council
of the Town of Avon.
Dated this 27th day of January, 1987.
TOWN,0'7 ANON, COLORADO
BY:
j
cia a. lloy.ue,
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN
OF AVON ON JANUARY 29, 1987:
THE AVON POST OFFICE IN THE MAIN LOBBY
CITY MARKET IN THE MAIN LOBBY
PESTER GAS STATION; AND
AVON MUNICIPAL BUILDING IN THE MAIN LOBBY
mCAc r\D
~