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HomeMy WebLinkAboutCrossroads Development Agreement1:-,` r .1 ,J CROSSROADS DEVELOPMENT AGREEMENT THIS CROSSROADS DEVELOPMENT AGREEMENT (this "Agreement ") is made effective as of the — day of March, 2006, by and between the TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado (the "Town "), and CROSSROADS EAST ONE, LLC, a Colorado limited liability company ( "Crossroads "). RECITALS: A. Crossroads intends to redevelop certain real property in the Town of Vail, commonly known as Crossroads at Vail, which is located in Special Development District No. 39, legally described on Exhibit A attached hereto and incorporated herein by reference (the "Property "). B. The Town, through its appropriate boards and reviewing agencies, including its Planning and Environmental Commission, has approved plans to allow for the redevelopment of the Property pursuant to Town of Vail Ordinance No. 5, 2006 (the "Crossroads Project "). C. Pursuant to the Crossroads Approvals, hereinafter defined, and to further mitigate the impact of the Crossroads Project, Crossroads has agreed to provide certain public benefits and improvements as more specifically described and defined herein. NOW, THERFORE, in consideration of the above premises and the mutual covenants and agreements set forth herein, the parties agree as follows: 1. References to the Crossroads Approvals The "Crossroads Approvals" shall refer to those plans, specifications and agreements approved by the Town for the Crossroads Project. The "Final Plans" include the plans approved as part of Town of Vail Ordinance No.5, Series 2006, plans approved by the Town's Design Review Board (the "DRB "), and construction plans approved in connection with any building permit. 2. Required Improvements— Allocation of Responsibility The parties hereby agree that if Crossroads obtains a building permit and commences construction of the Crossroads Project, Crossroads shall be responsible for the following improvements as more specifically set forth below (the "Required Improvements "): a. Public Improvements: Pursuant to the Crossroads Approvals, Crossroads is responsible for designing, installing and constructing (as applicable) the following improvements, as depicted on the Final Plans (the "Public Improvements "): New heated paver sidewalks along the south side of South Frontage Road, the north side of East Meadow Drive, and the west side of Village Center Road. ii. New curbs and gutters along South Frontage Road, East Meadow Drive, Willow Bridge Road and Village Center Road. Vii,xRCII 14, 2000 iii. A new raised median in South Frontage Road with new landscape materials and irrigation facilities. iv. Street lighting, as approved by the DRB, on South Frontage Road, East Meadow Drive, Willow Bridge Road and Village Center Road. V. Storm drainage improvements adjacent to the Property and along South Frontage Road, East Meadow Drive, Willow Bridge Road and Village Center Road to adequately convey storm -water runoff. vi. Reconstruction of Village Center Road, including the installation of heat tubing for connection by the Town to a Town heat source, the connection to the heat source, all costs of providing the heat source, the maintenance of the heat source and heat tubing, costs allocated for heating Village Center Road, landscape materials, construction of a utility conduit trench system, street lighting, concrete unit pavers and the required subsurface support system. Crossroads shall be responsible for heating Village Center Road for the life of Special Development District No. 39, Crossroads (the "SDD "). vii. Reconstruction of East Meadow Drive and Willow Bridge Road, including the installation of heat tubing to be made available to the Town for future connection by the Town to a Town funded heat source (not yet determined), landscape materials and planters, construction of utility conduit trench system, street lighting, concrete unit pavers and the required subsurface support system. viii. Crossroads shall be responsible for the heat and snowmelt facilities, including the heat plant and heat distribution system, required for the sidewalks along the south side of South Frontage Road, the north side of East Meadow Drive and the west side of Village Center Road, the Plaza (as hereinafter defined), other walkways within the Property boundaries, and the ongoing operation and maintenance of such facilities. Notwithstanding the foregoing, Crossroads may install and operate the heat plant and heat distribution system in locations satisfactory to Crossroads, in its ordinary business judgment, in such area(s) as are specified on the Final Plans. ix. Crossroads shall be responsible for irrigating and maintaining all landscape areas and plant materials within the public right -of -way located directly adjacent to the eastern-most portion of the Property, as depicted on the Final Plans. b. Other Required Improvements: Pursuant to and in accordance with the Crossroads Approvals, Crossroads is also responsible for providing, constructing, operating and maintaining (as applicable) the following improvements: i. Public Plaza: The Crossroads Project includes a plaza of approximately 24,130 sq. ft. (the "Plaza'). Once construction of the Crossroads Project is complete, as evidenced by the issuance of a temporary certificate of occupancy, and subject to the additional terms and conditions contained herein, Crossroads or its designee shall transfer, assign or otherwise convey to the Town (or a Town - controlled Agmt -DIA Crossroads (FINAL) general - improvement district) the authority to operate the Plaza for the public benefit, as more specifically described in Section 3 below. ii. Ice Rink: The Plaza will include an ice rink (the "Ice Rink") during the Ski Season, as hereinafter defined. A. Barring any climatic anomalies, Crossroads shall operate the Ice Rink during Ordinary Operating Hours, as defined below, throughout the Ski Season. Each year, the "Ski Season" shall commence the Saturday before Thanksgiving and run until the last day of operation of the Vail Mountain ski lifts. "Ordinary Operating Hours" shall mean those hours of operation observed by similarly situated skating facilities in the ordinary course of business. B. The general public shall have access to the Ice Rink free of charge, subject to such reasonable rules and regulations as Crossroads may determine from time to time. C. Crossroads shall install, maintain and operate refrigeration equipment adequate to maintain a suitable ice surface throughout the Ski Season without the use of sunscreens or sunshades; provided, however, that the Plaza may include— subject to DRB approval— sunscreens or sunshades for aesthetic reasons unrelated to the quality of the ice surface. The refrigeration equipment, sunscreens and/or sunshades, if any, shall be as depicted on the Final Plans. D. Subject to Force Majeure Delays, as defined below, Crossroads shall commence Ice Rink operations no later than 6 months after the issuance of a temporary certificate of occupancy for the Crossroads Project. E. Crossroads shall operate the Ice Rink in good faith for the life of the SDD. F. During the Ski Season, Crossroads shall operate a concession facility to rent ice skates at commercially reasonable rates. iii. Public Art: Crossroads shall provide at least $1.1 million in public art to be located on Crossroads Project site (the "Public Art "). The Public Art required hereunder must be (A) approved by the Town Council upon recommendation from the Art in Public Places Board, such approval not to be unreasonably delayed or withheld, and (B) located in plain - sight, open area(s) of the Crossroads Project to ensure that it may be viewed and enjoyed by the public. Applications for approval by the Town shall be accompanied by a narrative and visual description of the artwork, a schedule for installation, an itemized budget, the artist's resume and a maintenance plan. All Public Art shall be installed within 1 year after the issuance of a temporary certificate of occupancy for the Crossroads Project and remain in place for the life of the SDD; provided, however, that Crossroads may, with the Town's prior written approval, remove and replace all or any portion of the Public Art. Notwithstanding the foregoing, if, after meeting Agrat -DIA Crossroads (FINAL) 3 Ni, l 11 14, 00( its $1.1 million obligation hereunder, Crossroads elects to install additional artwork in open areas of Crossroads Project, such artwork shall not be subject to the provisions of this paragraph. Further, notwithstanding anything to the contrary contained herein, all artwork on the Property, including, without limitation, the Public Art, shall be the exclusive property of Crossroads. iv. Loading Berth: The Crossroads Project shall include a five -berth loading and delivery facility as depicted on the Final Plans (the "Loading Berth "). Crossroads agrees to make the Loading Berth available, free of charge, for use by area businesses as part of the Town's dispersed loading and delivery program. Crossroads and the Town shall jointly establish reasonable rules and regulations governing the use of the Loading Berth in order to accommodate Crossroads loading and delivery needs and prevent Crossroads from bearing any undue risk associated with public use of the facility. Crossroads agrees to provide access to the Loading Berth from the Plaza Level via elevator or other conveyance, as shown on the Final Plans. V. Bus Waiting Area: The public may use the portion of the southwest corner of the Plaza and the stairs adjacent thereto (as shown on the Final Plans), as a waiting area for the Town's in -town shuttle (the "Bus Waiting Area "). vi. Restrooms: The Crossroads Project includes public restroom facilities on the Plaza Level and the Garage Level, as depicted on the Final Plans (the "Public Restrooms "). The Public Restrooms shall be open, available and readily accessible to the general public from 6am until 2am each day and shall be appropriately signed to facilitate public use. Crossroads shall be responsible for operation and maintenance of the Public Restrooms. vii. Bowling Alley and Movie Theater: The Crossroads Project includes a space that will be developed as a three- screen movie theater (the "Movie Theater ") and a space that will be developed as a ten -lane bowling alley (the "Bowling Alley "). The improvements necessary for the operation of the Movie Theater and Bowling Alley will be completed prior to the issuance of a temporary certificate of occupancy for the residential component of the Crossroads Project, or any portion thereof. Crossroads shall operate the Movie Theater and Bowling Alley in good faith for the life of the SDD and in material conformity with standards generally and ordinarily observed by recognized first -class operators of similar facilities in the Denver metropolitan area. A. Change of Use — Crossroads. Crossroads shall provide not less than 90 days' notice to the Town of its intent to discontinue operating the Bowling Alley or Movie Theater. Additionally, any change of use (permitted or conditional) or deliberate discontinuance of Movie Theatre or Bowling Alley operations for more than 90 consecutive days or for 100 days out of any 180 -day period shall require Crossroads to obtain a major amendment to the SDD authorizing such change of use or discontinuance. Any proposed change of use must provide "public amenity" in the same sense as the Bowling Alley and Movie Theater Agmt -DIA Crossroads (FINAL) 4 14 . 200" provide public amenities. B. If Crossroads has not in good faith submitted a request for an amendment to the SDD, reasonably acceptable to the Town, within 4 months after Crossroads' deliberate discontinuance of Movie Theatre or Bowling Alley operations, Crossroads shall pay to the Town: $5,000 per day for each day that the Bowling Alley, or other Town - approved public amenity, is not operated in the Bowling -Alley space; and $2,000 per day, per Screen (hereinafter defined), for each day that the Movie Theater, any Screen contained therein or other Town - approved public amenity, as applicable, is not operated in the Movie - Theater space. The Town may adjust the foregoing amounts from time to time by multiplying each by the cumulative increases in the Consumer Price Index, taking the year in which the Bowling Alley and Movie Theater are granted temporary certificates of occupancy as the base year. "Screen" shall mean any of the three Movie Theater screens depicted on the Final Plans. C. In addition to the foregoing, Crossroads shall operate the Movie Theater and Bowling Alley year - round, in good faith, for the life of the SDD and shall not, in any event, suspend operations solely to avoid the economic consequences of poor attendance during seasonal lulls in local tourism. If Crossroads ceases operations in violation of this paragraph for more than 30 consecutive days or for 40 days out of any 60 -day period, Crossroads shall pay to the Town the amounts set forth immediately above for each day that the relevant operation(s) remain closed. c. Offsite Improvements: The Required Improvements shall be as described in the Crossroads Approvals and depicted on Final Plans. To the extent Crossroads has ongoing obligations with respect to the Required Improvements that are to be located within properties owned by the Town (the " Offsite Improvements "), the Town shall grant Crossroads a perpetual easement allowing Crossroads to fulfill such obligations, as more specifically set forth below. All Offsite Improvements shall be constructed using the same specifications, design and materials utilized by the Town for similar work. The DRB shall review all plans and specifications for the Offsite Improvements. The Town shall inspect and approve all work associated with the Offsite Improvements. i. Construction and Maintenance Easement: The Town hereby grants and declares, for the benefit of Crossroads and its designees from time to time, a non - exclusive easement (the "Construction and Maintenance Easement ") for the construction and installation (as applicable) of those portions of the Offsite Improvements that are to be located within properties owned by the Town. Those parties are further authorized to enter those properties and undertake therein any related construction warranty work or subsequent repairs or maintenance for which Crossroads may otherwise be obligated and which pertain to the Offsite Improvements that remain in place from time to time, with Crossroads' obligations in this regard being conditioned on the effectiveness of this authorization or other authorization provided by the Town allowing for timely entry. Agrat -DIA Crossroads (FINAL) 5 17 t f ' ee; d. Employee Housing: Crossroads shall provide the Town deed restricted employee housing sufficient to accommodate 12 occupants by executing appropriate restrictive covenant(s) on form(s) provided by the Town. Any dwelling unit(s) restricted shall conform to the following floor area requirements: a one - bedroom unit shall contain at least 550 sq. ft. of floor area and accommodate no more than 2 occupants; a two - bedroom unit shall contain at least 850 sq. ft. of floor area and accommodate no more than 3 occupants; a three - bedroom unit shall contain at least 1,350 sq. ft. of floor area and accommodate no more than 4 occupants; and a four - bedroom unit shall contain at least 1,500 sq. ft. of floor area and accommodate no more that 5 occupants. The Town may approve minor variations in floor area when the overall intent of the floor area requirements is being met. Any deed restriction shall be for property located within the Town. Such deed restriction(s) shall be executed and provided to the Town for recording and restricted unit(s) shall be available for occupancy prior to the issuance of a temporary certificate of occupancy for the Crossroads Project or any phase thereof. Any deed restricted employee housing unit shall comply with the standards and procedures established by the Town Zoning Regulations. e. Traffic Impact Fees: Crossroads acknowledges and agrees that the Crossroads Project may generate 68 additional PM peak hour trips and agrees to pay the Town a traffic impact fee of $6,500 per PM peak hour generated trip, for a total of $442,000 (the "Traffic Impact Fee "). The parties further acknowledge and agree that the obligation to pay the Traffic Impact Fee shall be a condition of the issuance of a building permit for the Crossroads Project; provided, however, that payment of the fee shall not be required until the issuance of a temporary certificate of occupancy for the Crossroads Project. Crossroads agrees that this Traffic Impact Fee has been fairly and properly calculated to offset the impacts created by the Crossroads Project. The parties further acknowledge and agree that the Traffic Impact Fee shall be used by the Town working cooperatively with CDOT for improvement to the South Frontage Road to accommodate a future turn- around or other warranted improvement. f. Operating Covenant. The Crossroads Project includes the development of residential condominiums, retail and commercial space. i. The residential portion of the Crossroads Project includes a lobby, front desk and concierge facilities. Crossroads and the Town shall enter into an Operating Covenant Agreement requiring Crossroads to operate the lobby, front desk and concierge facilities (the "Lobby Amenities ") in material conformity with the standards generally and ordinarily maintained by any recognized first -class hotel operator for the life of the SDD. ii. The Project includes commercial and retail space on the Plaza Level and Promenade Level as depicted on the Final Plans. The Operating Covenant Agreement shall require the retail and commercial space, including, without limitation, the Movie Theater and Bowling Alley, to be owned and operated as a unified commercial enterprise ( " Unified Commercial Enterprise') for the life of the SDD. Agmt -DIA Crossroads (FINAL) 6 A WA I 14, - ` - U - !' 6 g. Condominium Covenants, Conditions and Restrictions: Prior to the approval of the final plat and condominium map for the Crossroads Project, the Town shall review and approve the Condominium Covenants, Conditions and Restrictions (the "CC&R 's ") for the Crossroads Project. Crossroads shall be required to include in CC &R's, or other appropriate condominium document(s), provisions allowing public activities and events on or about the Plaza in conformance with provisions of this Agreement. h. Parking Management. Before applying for a building permit for the Crossroads Project, Crossroads must submit and the Town Council must approve a parking management plan (the "Parking Management Plan ") which sets forth, in sufficient detail, the proposed use, operation and management of the parking facility planned in connection with the Crossroads Project (the "Parking Facility "). The Town Council shall approve the Parking Management Plan so long as it is reasonably calculated to (i) maximize the use and occupancy of the Parking Facility and (ii) ensure that spaces not used by owners of residential condominium units or by commercial tenants or owners are available to the general public to the greatest extent possible. Such approval shall not be unreasonably withheld or delayed. Improvements to Vail Village Inn Phase 3 Property: Pursuant to the Site Plan, Crossroads shall provide the following improvements to the Vail Village Inn Phase 3 property, if, and only if, allowed by the Vail Village Inn Phase 3 Condominium Association (the "Association "). If the Association does not agree to the improvements as proposed by Crossroads and the easement documentation required by Crossroads to evidence same, then Crossroads is hereby relieved of any requirement to provide said improvements. Crossroads proposes to fund, install, and construct (as applicable) the following improvements: i. Four (4) large evergreen trees (20' in height) will either be relocated or planted new in the area indicated on the Final Plans, subject to direction on the exact location provided by the Association. Continued maintenance of these trees shall be the responsibility of the Association; ii. A private pocket park is to be created in the area shown on the site plan partially located on the property of the Association and partially on the Crossroads property. The park will contain landscape area, walkways, benches, and plant materials including trees as proposed by Crossroads. Crossroads will fund the construction of these improvements. The individual property owners will be responsible for continued maintenance of the improvements. Each property owner will maintain the improvements within his/her property; and iii. The stairs indicated on the site plan will be converted to an ADA accessible ramp that extends onto the property of the Association. Crossroads will fund the construction of these improvements, but continued maintenance of the improvements will be the responsibility of the individual property owners. Each property owner will maintain the improvements within his/her property. j. Crossroads shall dedicate a non - exclusive public access easement on the west side of the Agmt -DIA Crossroads (FINAL) 7 'tIARCIl14, 00 Crossroads Project connecting the Vail Village Inn Phase 3 to East Meadow Drive and the Plaza, as depicted on the Final Plans. 3. Special Taxing Districts and Public Finance The parties intend that the construction, use, operation and maintenance of the Public Improvements and certain other Required Improvements will be governed by and financed through the creation of one or more metropolitan districts, established pursuant to C.R.S. § 32 -1 -101 et seq. (the "Special District Act"), and a single general - improvement district, established pursuant to C.R.S. § 31 -25 -101 et seq., as more specifically described and defined below (collectively, the "Special Taxing Districts ") . The parties believe that this structure will: (a) properly allocate the various rights and responsibilities associated with the construction, use, operation and maintenance of the Required Improvements; (b) reinforce the public character of the Plaza by placing its management in the hands of public, quasi - governmental entities; (c) grant the Town authority to control the use of the Plaza and the operation and maintenance of certain other Required Improvements; and (d) provide a reliable, enduring financing mechanism to ensure the long- term vitality of the Required Improvements. For purposes of this Section 3, references to the "Required Improvements" shall mean only those Required Improvements that qualify for public financing under Colorado law. In consideration of the foregoing, the parties agree as follows: a. The Town will permit and provide requisite approvals for the formation of not more than two metropolitan districts proposed by Crossroads, whose boundaries will be coextensive with the Property limits (the "Metropolitan Districts "). The service plan for the Metropolitan Districts (the "Service Plan ") will authorize the Metropolitan Districts to undertake the construction, financing, operation and maintenance of the Required Improvements, or applicable portions thereof. In addition, the Service Plan will limit the Metropolitan Districts' powers to: (i) constructing the Required Improvements; (ii) operating and maintaining all Required Improvements not operated and maintained by the GID (hereinafter defined), as more specifically set forth below; (iii) securing financing necessary to perform such functions through the imposition of property taxes and development fees; and (iv) taking such other actions and exercising such other powers, consistent with the Special District Act, as are necessary for or incidental to the performance of the Metropolitan Districts' duties as outlined in the Service Plan. b. Concurrent with and subject to the formation of the Metropolitan Districts for the purposes contemplated hereunder, Crossroads will execute a petition for the formation of a single general- improvement district, whose boundaries will be coextensive with the Property limits (the "GID "). The GID will be authorized to undertake, pursuant to an intergovernmental agreement with the Metropolitan Districts (the "IGA "), the management, operation and maintenance of certain Required Improvements and the financing required in connection therewith. The IGA will expressly limit the GID's powers to: (i) controlling the use of the Plaza; (ii) operating and maintaining certain Required Improvements; and (iii) securing financing necessary to perform such functions. c. Subject to the other provisions of this Section 3, the Metropolitan Districts will delegate, assign or otherwise convey to the GID the authority to control the use of the Plaza, Agmt -DIA Crossroads (FINAL) 8 AiAllk( 11 14. 200 pursuant to the terms of the IGA, for the life of the SDD. Such authority shall include, without limitation, the power to plan, program, schedule, administer and regulate all public and special events conducted on the Plaza and otherwise use and run the Plaza for the public benefit; provided, however, that all Plaza uses including, without limitation, public and special events, must be consistent with ordinary uses for similar public parks within the Town. Although the Town -run GID will have the authority to control the use of the Plaza, within the parameters of the IGA, the Metropolitan Districts will retain the responsibility for maintaining the Plaza in material conformance with the standards generally and ordinarily observed by any recognized first -class hotel operator (the "Operating Standard"). If the Metropolitan District fails to maintain the Plaza consistent with the Operating Standard, the Metropolitan District shall delegate, assign or otherwise convey to the GID the authority to maintain the Plaza for the life of the SDD; provided, however, that the GID shall be required to maintain the Plaza in compliance with the Operating Standard, the IGA and any other agreement(s) or instrument(s) bearing on the operation and maintenance of the Plaza. d. In addition to the foregoing, the parties agree that the following provisions shall govern the use and operation of the Plaza: i. The public shall have free and unrestricted access to the Plaza, except during public and special events approved by the GID. ii. No special events shall conclude after 11:OOpm without the prior written consent of Crossroads and the Metropolitan Districts. iii. Crossroads shall have the right to schedule and conduct 15 special events each calendar year; provided, however, that Crossroads shall be required to schedule and conduct such special events in accordance with the GID's procedures in effect from time to time. iv. The party conducting the special event shall be responsible for all costs associated with the special event, including the cost of cleaning the Plaza consistent with the Operating Standard and restoring the Plaza to the condition that existed prior to the occurrence of the special event. To the extent that the party conducting the special event cannot complete such cleanup and restoration prior to 11:00pm on the night of the special event, such party shall complete the remaining cleanup and restoration between 7:00am and 10:00am on the following morning. V. All special events shall be conducted in such a manner as to allow free and unrestricted access to the commercial establishments adjacent to the Plaza at all times. 4. Bonding For Public Improvements The parties hereby acknowledge and agree that, except as otherwise expressly provided herein, no certificates of occupancy, temporary or permanent, will be issued for the Crossroads Project until Crossroads has: (a) completed the 4 Required Improvements as set forth in Section 2 above; or (b) posted or caused to be posted security for the remaining incomplete items with the Town (by letter of credit or other Agmt -DIA Crossroads (FINAL) 9 t reasonably acceptable financial device), in an amount equal to 125% of the projected construction costs of those remaining items. 5. Schedule for Performance Crossroads agrees to commence Vertical Construction, as hereinafter defined, not later than 3 years following final non - appealable approval of Town of Vail Ordinance No. 5, Series 2006. "Vertical Construction" shall mean above ground construction of the frame or at least one elevator core. 6. Certificate of Compliance It is agreed that, upon completion of any of the Required Improvements contemplated by this Agreement and the expiration of the warranty period (as defined below), the Town shall, upon the request of the party responsible for the particular Required Improvement(s), execute a certificate stating that such improvement(s) have been constructed in compliance with this Agreement. Said certificate shall not be unreasonably withheld if the requesting party has completed the improvements in a good and workmanlike manner, consistent with the Final Plans. 7. Warranty Crossroads shall warrant any and all Offsite Improvements for which it is responsible hereunder for a period of 2 years from the date of substantial completion, as evidenced by the issuance of a temporary certificate of occupancy ( "Substantial Completion "). Specifically, Crossroads shall warrant that any and all offsite physical improvements required by this Agreement which are conveyed, dedicated or otherwise done for the benefit of the public shall be free from any defects in materials and workmanship, and free from any security interest, monetary lien or other encumbrance for a period of two 2 years from the date of Substantial Completion. 8. Liability of Successors The provisions hereof touch and concern and run with the ownership of the Property. However, Crossroads' rights and obligations as set forth in this Agreement, including, without limitation, Crossroads' responsibilities with respect to the Required Improvements (the "Development Obligations "), shall be assignable as set forth below: a. Subject to and in accordance with the provisions of Section 3 above, Crossroads will assign to the Metropolitan Districts the authority to construct, operate and maintain the Required Improvements, or eligible portions thereof, to the extent the same qualify for public financing under Colorado law. b. In addition to the foregoing, Crossroads may assign the operation and maintenance of any Required Improvements that do not qualify for public financing under Colorado law (including, by way of example, the Lobby Amenities and the Parking Facility) to any owners' association formed in connection with the Crossroads Project. c. Except as otherwise set forth in this Section 8, Crossroads may assign the Development Obligations, or relevant portions thereof, to any successor owner in the Crossroads Project. d. If Crossroads assigns any of the Development Obligations pursuant to this Section 8, Crossroads will have no further liability for any of those Development Obligations that are so assigned. Agmt -DIA Crossroads (FINAL) 10 A,- UZ(, " &` 1 .. 7 - 0 0(t e. The Town agrees to cooperate reasonably and diligently in furnishing recordable releases and terminations of this Agreement, or for discrete portions of the requirements hereunder, when the relevant requirements have been satisfied or assigned. f. Subject to the foregoing provisions, (i) this Agreement shall be binding upon and inure to the benefit of Crossroads and its successors and assigns, and (ii) references in this Agreement to "Crossroads" shall be construed to include its successors and assigns from time to time. g. Notwithstanding anything to the contrary contained herein, the Movie Theater and Bowling Alley shall be owned and operated as part of the Uniform Commercial Enterprise for the life of the SDD. Ownership of and responsibility for the Movie Theater and Bowling Alley, including all obligations in Section 2.b.vii above, may only be transferred to a purchaser who acquires the Unified Commercial Enterprise in its entirety. 9. Vested Rights Except to the extent that Crossroads must satisfy the requirements of Section 5 above, Crossroads and the Town agree that the Crossroads Project Approvals and this Agreement collectively constitute an approved "site- specific development plan" for the Property and the Crossroads Project under the Vested Rights Laws (as defined below). Pursuant thereto, the Town agrees that Crossroads, and its successors in interest in the ownership of the Property, or any portion thereof, will be entitled and have the right to undertake and complete development of the Property and the Crossroads Project in accordance with the Crossroads Project Approvals, as the same may be further amended or supplemented in connection with the development process by additional development and construction plans, platting or otherwise. This right to so develop shall constitute a vested property right under C.R.S. § 24 -68 -101, et seq. (the "Vested Rights Act "), and/or Town Code § 12 -19 -1, et seq. (collectively the "Vested Rights Laws "), and this Agreement shall constitute a development agreement within the meaning of the Vested Rights Act. The following language is hereby deemed incorporated into each of the Crossroads Project Approvals (and amendments and supplements thereto) as well as this Agreement: "Approval of this plan may create a vested property right pursuant to Colorado Revised Statutes title 24, article 68, as amended." 10. Reimbursement of Costs Crossroads shall reimburse the Town for its reasonable attorneys' fees and consultant expenses (past, current and future) in connection with the review and consideration of the Crossroads Project and the proposed Special Taxing Districts. Payment shall be due within 30 days of Crossroads' of receipt of itemized invoices detailing such expenses. 11. Notices; Business Days Any notice required or permitted under the terms of this Agreement shall be in writing, may be given by the parties hereto or such parties' respective legal counsel, and shall be deemed given and received (a) when hand delivered to the intended recipient, by whatever means; (b) 3 business days after the same is deposited in the United States mails, with adequate postage prepaid, and sent by registered or certified mail, with return receipt requested; (c) 1 business day after the same is deposited with an overnight Agrat -DIA Crossroads (FINAL) 11 RAI '11 1 � 20NP courier service of national or international reputation having a delivery area encompassing the address of the intended recipient, with the delivery charges prepaid; or (d) when received via facsimile on the intended recipient's facsimile facilities accessed by the applicable telephone number set forth below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the noticing party). Any notice under clause (a), (b) or (c) above shall be delivered or mailed, as the case may be, to the appropriate address set forth below: If to Crossroads: with copies to: Crossroads East One, LLC Crossroads East One, LLC Attn:Peter Knobel Attn: Jonathan Boord, Esq. 143 E. Meadow Drive 143 E. Meadow Drive Vail, CO 81657 Vail, CO 81657 Fax No.: (970) 479 -7511 Fax No.: (970) 479 -7511 Phone: (970) 479 -7566 Phone: (970) 479 -7566 and Garfield & Hecht, P.C. Attn: Reed Weily, Esq. Avon Town Square, Unit 104 0070 Benchmark Road P.O. Box 5450 Avon, Colorado 81620 Fax No.: (970) 949 -1810 Phone: (970) 949 -1496 If to the Town of Vail: with a copy to: Town of Vail Town of Vail Attention: Town Manager Attention: Town Attorney 75 S. Frontage Road 75 S. Frontage Road Vail, Colorado 81657 Vail, Colorado 81657 Fax No.: (970) 479 -2157 Fax No.: (970) 479 -2157 Each party may change its addresses and /or fax numbers for notices pursuant to a written notice given in accordance with the terms hereof. As used herein, the term "business day" shall mean any day other than a Saturday, a Sunday, or a legal holiday for which U.S. mail service is not provided. Whenever any date or the expiration of any period specified under this Agreement falls on a day other than a business day, then such date or period shall be deemed extended to the next succeeding business day thereafter. 12. Severability In the event any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future laws, the legality, validity and enforceability of the remaining provisions in this Agreement shall not be affected thereby, and in lieu of the affected provision there shall be deemed added to this Agreement a substitute provision that Agmt -DIA Crossroads (FINAL) 12 is legal, valid and enforceable and that is as similar as possible in content to the affected provision. It is generally intended by the parties that this Agreement and its separate provisions be enforceable to the fullest extent permitted by law. 13. General Disclaimer Notwithstanding anything to the contrary contained herein, this Agreement shall not be construed to require either party to take any action contrary to any laws, rules, regulations, or restrictions affecting the property (collectively, the "Property Restrictions "). If any of the obligations agreed to hereunder are found to violate the Property Restrictions, the parties agree to take such actions as are necessary to remedy the violation(s) so that the Crossroads Project can proceed in accordance with the Final Plans, the Crossroads Approvals, and the provisions of this Agreement. 14. Exhibits All Exhibits to this Agreement which are referenced by the provisions hereof as being attached hereto are deemed incorporated herein by this reference and made a part hereof. 15. Entire Agreement This Agreement and the other contracts or agreements specifically referred to herein represent the entire agreement between the parties hereto with respect to the subject matter hereof, and all prior or extrinsic agreements, understandings or negotiations shall be deemed merged herein. 16. Rules of Construction The headings appearing in this Agreement are for purposes of convenience and reference and are not in any sense to be construed as modifying the Irw paragraphs in which they appear. Each party hereto acknowledges that it has had full and fair opportunity to review, make comment upon, and negotiate the terms and provisions of this Agreement, and if there arise any ambiguities in the provisions hereof or any other circumstances which necessitate judicial interpretation of such provisions, the parties mutually agree that the provisions shall not be construed against the drafting party, and waive any rule of law which would otherwise require interpretation or construction against the interests of the drafting party. References herein to the singular shall include the plural, and to the plural shall include the singular, and any reference to any one gender shall be deemed to include and be applicable to all genders. The titles of the paragraphs in this Agreement are for convenience of reference only and are not intended in any way to define, limit or prescribe the scope or intent of this Agreement. 17. Effective Date The effective date of this Agreement shall be the date upon which this Agreement has been executed and delivered by Crossroads and so executed by the Town Manager. 18. Waivers and Amendments No provision of this Agreement may be waived to any extent unless and except to the extent the waiver is specifically set forth in a written instrument executed by the party to be bound thereby. No modification or amendment to this Agreement shall have any force or effect unless embodied in an amendatory or other agreement executed by all parties hereto. 19. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, and Eagle County, Colorado shall be the Agmt -DIA Crossroads (FINAL) 13 z I 1 z 2006 venue for any dispute arising under this Agreement. 20. Additional Assurances The parties agree to reasonably cooperate to execute any additional documents and to take any additional action as may be reasonably necessary to carry out the purposes of this Agreement. 21. No Third Party Beneficiary No third party is intended to or shall be a beneficiary of this Agreement, nor shall any such third party have any rights to enforce this Agreement in any respect. 22. Counterparts This Agreement may be executed in counterparts, each of which shall constitute an original, and which together shall constitute one and the same agreement. 23. Recording This Agreement shall be recorded in the real property records for Eagle County, Colorado. 24. No Joint Venture or Partnership No form of joint venture or partnership exists between the Town and the other parties hereto and nothing contained in this Agreement shall be construed as making the Town and the other parties to this Agreement joint venturers or partners. 25. Attorneys' Fees In the event any legal proceeding arises out of the subject matter of this Agreement and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and the presiding court will be bound to make this award). 26. Force Majeure In the event of delays from causes beyond the reasonable control of Crossroads (such as, acts of God, strikes, work stoppages, unavailability of or delay in receiving labor or materials, defaults by contractors or subcontractors, unusual weather conditions, or fire or other casualty) (each, a "Force Majeure Delay "), then the time for Crossroads' performance or satisfaction of any conditions under this Agreement will be extended for a period or periods of time equal to the length of each Force Majeure Delay, or any longer period or periods as may be reasonably necessary or appropriate to accommodate the effect of the Force Majeure Delay. 27. Acceptance of Easement Dedications In connection with the Crossroads Project, the Town has received or will receive various easement grants, made expressly as dedications and to be recorded in the real property records for Eagle County, Colorado (the "Records "), from Crossroads (the "Public Easements "). The Town hereby agrees that effective upon execution and delivery by The Town Manager, or upon the final written confirmation of The Town Manager, the Town accepts the public dedication under the grant of each Public Easement, for the public's use. [Balance of page intentionally left blank] Agmt -DIA Crossroads (FINAL) 14 � .',0 IN WITNESS WHEREOF, the Town and Crossroads have made this Agreement as of the day, month and year first above written. TOWN: TOWN OF VAIL, a municipal corporation duly organized and existing by virtue of the laws of the State of Colorado By: Name: Title: ATTEST: Lorelei Donaldson, Town Clerk STATE OF COLORADO ) ss: COUNTY OF ) Town Manager The foregoing instrument was acknowledged before me this day of ,20Q_, by as Town Manager of the Town of Vail, a municipal corporation duly organized and existing by virtue of the laws of the State of Colorado. Witness my hand and official seal. My commission expires: Notary Public [Signature blocks continue on following page] Agmt -DIA Crossroads (FINAL) 15 N1A1 i1 14, 1041 Crossroads: Crossroads East One, LLC, a Colorado limited liability company By: Name: Title: STATE OF COLORADO ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of 200_, by as of Crossroads East One, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public Agmt -DIA Crossroads (FINAL) 16 IA'MK i 114, 20(ko EXHIBIT A: LEGAL DESCRIPTION Agmt -DIA Crossroads (FINAL) A -1