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TC Res. No. 2008-02 Regarding extension of a milestone event for completion of construction of the gates formerly the chateau st.claire planned unit developmentTOWN OF AVON, COLORADO RESOLUTION NO.' 08-02 SERIES OF 2008 A RESOLUTION REGARDING EXTENSION OF A, MILESTONE EVENT FOR COMPLETION OF CONSTRUCTION-OF THE GATES, FORMERLY THE CHATEAU ST. CLAIRE PLANNED UNIT DEVELOPMENT WHEREAS; the Town'and CSC Land, LLC ("CSC") have entered into a Second Amended and Restated Development Agreement ("the Agreement") for The Gates dated August 24, 2007; and WHEREAS, 'Section 4.3(a) of the Agreement provides that, should CSC be delayed, hindered or.prevented from proceeding in accordance with the schedule of construction 'deadlines attached asExhibit A to the Agreement for. any reason, it shall, within thirty (30) days after commencement of the delay, provide, the Town with written notice of the delay, the reason therefor and an estimate of the expected duration of the delay; and WHEREAS, Section 4.3(a) of the Agreement further provides that the Town shall approve or disapprove the delay in its sole and absolute discretion; and WHEREAS, on December 10, 2007, CSC provided written notice that it had been delayed, hindered or prevented from completing landscaping by the Milestone Event date of November 15, 2007, and requested that the Town approve an extension of the Milestone Event to December 6, 2007. I- Resolution No. 08-02 the Gates Milestone Page 1 of 2 NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, as follows: 1. Extension of the Milestone Event of Completion of Landscaping until December 6, 2007, is not approved. ADOPTED the' 8th day of January, 2008. ~N OF A~pN Ronald C. Wolfe, Mayor SE ATTEST: "y7 Kenny o Clerk Resolution No. 08-02 the Gates Milestone Page 2 of 2 MEMORANDUM TO: TOWN COUNCIL FROM: TOWN ATTORNEY RE: THE GATES DATE: January 8, 2008 On the Council agenda is a request by CSC Land to approve an extension of.the landscaping completion deadline for The Gates from November 15, 2007, to December 6, 2007. Following this memorandum are copies of correspondence received from CSC Land and the relevant section of the Second Amended and Restated Development Agreement for The Gates dated August 24, 2007. As the Council is well aware, the development. agreement establishes milestones for. completion of construction, and Section 4.3(a) of the agreement allows the Council, in its "sole and absolute discretion," to approve or disapprove of any delay with respect to any milestone. When • the development agreement was last amended in August, Section 4;3(b) was added to afford the developer the option to elect to be assessed liquidated damages of $1,000 per day. The developer has been reminded of this option, but it has expressed a preference to come before the Council to explain the.delay and ask approval of it. If the delay is not approved, CSC will have the option to elect to pay the liquidated damages. Unless and until that election is made, the project wilt be shut down. If the election is made, CSC will, have 30 days to make payment. If it does not pay, the penalty will be withdrawn from the restoration bond, which withdrawal will have to be replenished within 30 days thereafter. Failing replenishment, the project will be shut down. The Council should be aware that the Town has recently received an improvement location certificate (required by the Town's building code) which establishes that the building ridge line exceeds by three feet what is permitted by the development standards for The Gates. The Gates' attorney has indicated that an application,to amend the development standards will be filed which, if approved by the Town Council, will cause the development standards to conform to the actual height of the ridge line. The Council should also note that only one Milestone Event, other than call for final inspection (June 27, 2008) and issuance of a certificate of occupancy (July 31, 2008), remains, which Milestone Event is an April 20 deadline for completion of hardware installation. It has been suggested to the attorney for The Gates that this remaining Milestone Event be addressed at this time and it is anticipated that elimination of that deadline will be a part of the application which 0 will be filed. Town staff recommends that the request not be approved. Representatives of CSC represented to the Council in July that the timing of the revised Milestone Events was both sufficient and necessary to complete the project and that the provision for liquidated damages was included in the agreement to prevent CSC from having to ask the Council for additional relief and incurring staff time in the process. JWD:ipse • ~J 0 r • 6 4.2 Maintaining Active Permit. The foregoing notwithstanding, Owner shall maintain an active building permit pursuant to the current provisions of Title 15, Municipal Code, on the schedule attached hereto as Exhibit A, subject to excusable delays as contained in Section 4.3 provided that in no event shall excusable delays permit the schedule to be extended past the fourth anniversary of the Effective Date. 4.3 Excusable Delays. (a) Should the Owner _ be delayed, hindered or prevented from proceeding in accordance with the schedule of deadlines attached hereto as Exhibit A for any reason, Owner shall, within thirty (30) days after commencement of the delay, provide the Town Department of Community Development (with a copy to the Town Attorney) with written notice of the delay, the reason therefor and an estimate of the expected duration of the delay. The Town shall approve or disapprove the delay and, if it is approved, the period thereof, in its sole and absolute discretion. If the delay is approved by the Town, Owner shall thereafter use all commercially reasonable efforts to minimize its impact and duration. Delays approved by the Town may permit the milestone dates on Exhibit A to be extended, but in no event shall any Delays approved by the Town permit the schedule to be extended past the Completion Deadline. Nor may any delays approved by the Town be utilized to claim an extension of the term of this Agreement or the term of the vested property rights established under this Agreement. (b) ' Notwithstanding the foregoing, i) in the event CSC fails to meet • any construction milestone, at its option it may elect to be assessed liquidated damages of $1,000 per day (which amount the parties agree to be fair and reasonable and not a penalty); ii) the penalty so assessed, if not paid within 30 days, shall be deducted from the cost restoration bond provided for in Section 3.4 hereof; iii) the amount deducted shall be replenished within 30 days of the deduction; and iv) upon failure of CSC to replenish the cost restoration bond, the Town may proceed as though it has disapproved a request by CSC for an extension of the particular milestone event. ARTICLE V DEFAULTS AND REMEDIES 5.1 Default by Town. A "breach" or "default" by the Town under this Agreement shall be defined as the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement. 5.2 Default by Owner. A "breach" or "default" by Owner shall be defined as Owner's failure to fulfill or perform any material obligation of Owner contained in this Agreement. 5.3 Notices of Default. In the event of a default by either party under this Agreement, the non-defaulting party shall deliver written notice to the defaulting party of such default, at the address specified in Section 6.8, and the defaulting party shall have 0 7 0 0 CSC LAND, LLC December 10, 2007 14 C7 Mr. Larry Brooks Town Manager Town of Avon PO Box 975 Avon, CO 81620 lbrooks@avon.org RE: The Gates at Beaver Creek (Project') Mr. Brooks, Pursuant to the Second Amended and Restated Development Agreement for The Gates ("Agreement"), dated August 24, 2007,under Article 4.3 EXCUSABLE DELAYS, we are required to provide written notice of delay to the deadlines in Exhibit A of the • Agreement specifically the November 15, 2007 deadline for completion of the landscape for the Project. As of November 15, 2007 all required trees, shrubs and re-seed were installed, however, our landscape contractor informed us that the perennials were not available. We subsequently located these perennials elsewhere in Colorado and had them shipped to the Project. As of Thursday, December 6, 2007, the landscape was complete. The contractor on the Project called for an inspection on December 6, 2007. The Project is progressing well and our current schedule indicates a Certificate of Occupancy sometime in April, 2008, significantly before the required July 31, 2008 deadline. We respectfully request that, because as of the November 15 deadline the required landscaping was substantially complete, and is now 100'/6 complete, the Town of Avon approve the delay in accordance with Article 4.3 of the Agreement. Please advise as soon as possible as to the result your inspection and your approval or disapproval of the delay. One Hickory Centre, 1800 Valley View Lane, Suite 150 LB4,,Dallas, TX US 75234 • Phone (972) 385-9934 Fax (972) 241-4484 www.jmjholdings.com t • E CSC LAND, LLC We appreciate your patience and assistance with the Project and recognition of our efforts to complete the Project prior to all future, required deadlines. .r CC:John Dunn, Town Attorney, Town of Avon, PO Box 1077, Avon, Colorado 81620 JDunn@avon.org Eric Heidemann, Town of Avon, PO Box 975Avon, CO 81620 eheidemann@avon.org • • One Hickory Centre, 1800 Valley View Lane, Suite 1501-84, Dallas, TX US 75234 Phone (972) 385-9934 Fax (972) 241-4484 www.jmjhoidings.com TOWN OF AVON, COLORADO RESOLUTION NO. 08- Q~ A RESOLUTION REGARDING EXTENSION OF A MILESTONE EVENT FOR COMPLETION OF CONSTRUCTION OF THE GATES, FORMERLY THE CHATEAU ST. CLAIRE PLANNED UNIT DEVELOPMENT WHEREAS, the Town and CSC Land, LLC ("CSC") have entered into a Second Amended and Restated Development Agreement ("the Agreement") for The Gates" dated August 24, 2007; and WHEREAS, Section 4.3(a) of the Agreement provides that, should CSC be delayed, hindered. or prevented from proceeding in accordance with the schedule of construction deadlines attached as Exhibit A to the Agreement for any reason, it shall; within thirty (30) days after commencement of the delay, provide the Town with written notice of the delay, the reason therefor and an estimate of the expected duration of the delay; and WHEREAS, Section 4.3(a) of the Agreement further provides, that the Town shall approve or disapprove the delay, in :its sole and absolute discretion; and WHEREAS, on December 10, 2007, CSC provided written notice that it had been delayed, hindered or prevented from completing landscaping by the Milestone Event date of November 15, 2007, and requested that the Town approve an extension of the Milestone Event to December 6, 2007. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, as follows: 1. Extension of the Milestone Event of Completion of Landscaping until December 6, 2007, is approved/not approved. 0 • • ADOPTED the 8th day of January, 2008. Ronald C. Wolfe, Mayor ATTEST: Patty McKenny, Town Clerk TOWN OF AVON, COLORADO RESOLUTION NO. 08-02 • SERIES OF 2008 A RESOLUTION APPROVING EXTENSION OF A MILESTONE EVENT FOR COMPLETION OF CONSTRUCTION OF THE GATES, FORMERLY THE CHATEAU ST. CLAIRE -PLANNED UNIT DEVELOPMENT WHEREAS, on December 10,2007, CSC Land,.LLC ("CSC") provided written notice that it had been delayed, hindered. or prevented from completing landscaping, by the Milestone. Event date of November 15, 2007, and requested that the Town approve an extension of the Milestone Event to December 6, 2007, pursuant to the Amended and Restated Development Agreement between it and the Town dated as of August 24, 2007; NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, as follows: 1. Extension of the Milestone Event of Completion of Landscaping until December • 6, 2007, is approved. ADOPTED the 8th day of January, 2008. Ronald C. Wolfe,. Mayor ATTEST: Patty McKenny, Town Clerk 0 d December 12, 2007 970-7484000 970-949-9139 Fax Relay recognized www.avon.org • Tim Barton CSC Land, LLC One Hickory Centre 1800 Valley View Lane, Suite 150 LB4 Dallas TX 75234 Avon... a smoke-free community Post Office Box 975 400 Benchmark Road Avon, Colorado 81620 Re: The Gates at Beaver Creek Dear Mr. Barton: This will acknowledge receipt of your letter dated December 10, 2007, wherein you seek approval of a delay in your company's compliance with the November 15, 2007 deadline for completion of landscaping contained in the Second Amended and Restated Development Agreement for The Gates (formerly Chateau St. Claire) dated August 24, 2007. Your request will be presented to the Town Council for their consideration at the next meeting of the Council on January 8, 2008. Yours truly, 4" arty B , Town Manager LB:ipse CC. Mr. Dunn Mr. Heidern 0 CSC LAND, LLC December 10, 2007' Mr. Larry Brooks Town Manager Town of Avon PO Box 975 Avon, CO 81620 lbrooks@avon.org RE: The Gates at Beaver Creek ("Project") Mr. Brooks, • Pursuant to the Second Amended and Restated Development Agreement for The Gates ("Agreement"), dated August 24, 2007,under Article 4.3 EXCUSABLE DELAYS, we are required to provide written notice of delay to the deadlines in Exhibit A of the is Agreement specifically the November 15, 2007 deadline for completion of the landscape for the Project. As of November 15, 2007 all required trees, shrubs and re-seed were installed, however, our landscape contractor informed us that the perennials were not available. We subsequently located these perennials elsewhere in Colorado and had them shipped to the Project. As of Thursday, December 6, 2007, the landscape was complete. The contractor on the Project called for an inspection on December 6, 2007. The Project is progressing well and our current schedule indicates a Certificate of Occupancy sometime in April, 2008, significantly before the required July 31, 2008 deadline. We respectfully request that, because as of the November 15 deadline the required landscaping was substantially complete, and is now 100% complete, the Town of Avon approve the delay in accordance with Article 4.3 of the Agreement. Please advise as soon as possible as to the result your inspection and your approval or disapproval of the delay. One Hickory Centre, 1800 Valley View Lane, Suite 150 L84, Dallas, TX US 75234 • Phone (972) 385-9934 Fax (972) 2414484 www.jmjholdings.com We appreciate your patience and assistance with the Project and recognition of our efforts to complete the Project prior to all future, required deadlines. d, LLC CC:John Dunn, Town Attorney, Town of Avon, PO Box 1077, Avon, Colorado 81620 JDunri@avon.org Eric Heidemam Town of Avon, PO Box 975Avon, CO 81620 eheidernann rr avon.org One Hickory Centre, 1800 Valley View Lane, Suite 150 LB4, Dallas, TX US 75234 Phone (972) 385-9934 Fax (972) 2414484 www.jmjholdings.com