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HomeMy WebLinkAbout2020-37 Solaris Development AmendmentRESOLUTION NO. 37 Series of 2020 A RESOLUTION APPROVING A FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF VAIL AND CROSSROADS EAST ONE, LLC WHEREAS, the Town and Crossroads East One, LLC, entered into WHEREAS, The Town and Crossroads wish to amend the Agreement to allow for a renovation to occur within the Solaris development project; subject to the Agreement; and as set forth the attached hereto as Exhibit A. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Town Council hereby approves the Amendment in substantially the same form as attached hereto as Exhibit A, and in a form approved by the Town Attorney, and authorizes the Town Manager to execute the Amendment on behalf of the Town. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Vail held this 18th day of August 2020. _________________________ Dave Chapin, Town Mayor ATTEST: _____________________________ Tammy Nagel, Town Clerk FIRST AMENDMENT TO DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this Amendment ) is made this ______ day of _______________, 2020 (the Effective Date ), by and between the Town of Vail, Colorado, a Colorado home rule municipality with an address of 75 South Frontage Road, Vail, Colorado 81657 (the Town ), and CROSSROADS EAST ONE, LLC, a Colorado limited liability company with an address of 141 East Meadow Drive, Suite 211, Vail, CO 81657 (Crossroads ) (each individually a Party and collectively the Parties ). WHEREAS, the Parties entered into a Development Agreement dated July 25, 2006 (the Agreement ); WHEREAS, Crossroads wishes to renovate the premises subject to the Development Agreement; and WHEREAS, the Parties wish to amend the Agreement as set forth in this Amendment. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows: 1. Section 2.b.vii. of the Agreement is hereby deleted in its entirety and replaced with the following: vii. Required Public Amenities. The Crossroads Project shall include one bowling alley (the Bowling Alley ) and one entertainment venue (the Entertainment Venue ) (each a Required Public Amenity and collectively the Required Public Amenities ). The Entertainment Venue shall include at least two (2) movie screens and at least one (1) other amenity with a primary purpose to provide for the entertainment of customers and invitees of the Entertainment Venue, including without limitation a nightclub, music venue, restaurant, movie screen, performance art facility, or indoor recreational facility. Crossroads shall operate, or cause to be operated, the Required Public Amenities 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, Colorado metropolitan area. Nothing herein shall be construed to limit (i) other uses within the Crossroads Project or appurtenant to a Required Public Amenity, in each case to the extent otherwise permitted by applicable law, or (ii) the right of Crossroads or any operator of a Required Public Amenity to charge its customers and invitees or operate on a for-profit basis. A. Change of Use. In the event that Crossroads desires the right to permanently discontinue the operation of either Required Public Amenity, Crossroads shall provide not less than ninety (90) days prior written notice of such discontinuance to the Town. During such 90-day period, the Town and Crossroads shall use good faith efforts to negotiate an amendment to the Agreement to provide for the discontinuance of such Required Public Amenity. The Town shall not unreasonably withhold its consent to the discontinuance of any Required Public Amenity so long 2 as the discontinued Required Public Amenity is replaced with one or more other public amenities. B. Penalty. If Crossroads deliberately ceases to operate or cause to be operated a Required Public Amenity for a period of one hundred twenty (120) or more consecutive days without the consent of the Town, commencing on the date that is one hundred twenty (120) days from such cessation, Crossroads shall pay to the Town a penalty of $5,000 per day that such Required Public Amenity is not operated. The Town may increase the penalty by multiplying the cumulative increases in the Consumer Price Index for the Denver-Aurora-Lakewood area, taking the year in which the applicable Required Public Amenity commenced operation as the base year. C. Off-Seasons. Crossroads shall operate, or cause to be operated, the Required Public Amenities 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 to operate, or cause to be operated, the Required Public Amenities in violation of this paragraph for more than thirty (30) consecutive days during any off-season, or for more than (40) days of any sixty (60) day period during any off-season, Crossroads shall pay to the Town a penalty in the amount set forth in the immediately preceding paragraph for each day that the Required Public Amenities remain closed, provided that, if Crossroads is in violation of both this subsection C and the prior subsection B, only one penalty may be imposed at a time. As used in this Section, off-season shall mean any period of time in which the lifts on Vail Mountain are not in operation. D. Remedies. In lieu of the penalties outlined above, the Town hereby expressly reserves the right to pursue any other remedies available at law or in equity, including, without limitation, specific performance. 2. Sections 2.f.ii., 8.g., and 11 of the Agreement are amended to replace the Movie Theater with Entertainment Venue each time the term appears. 3. Section 27 of the Agreement is hereby amended and restated in its entirety as follows: Force Majeure. In the event of delays from causes beyond the reasonable control of Crossroads, Crossroads shall not be required to perform any term, covenant or condition of this Agreement so long as such performance is delayed or prevented by Force Majeure (each, a Force Majeure Event ), and all time periods permitted hereunder for the performance of any such term, covenant, or condition shall be tolled for a period or periods of the Force Majeure Event, or any longer period or periods as may be reasonably necessary or appropriate to accommodate the effect of the Force Majeure Event. For purposes hereof, a Force Majeure shall mean any cause beyond the reasonable control of Crossroads, including, without limitation: acts of God; strike; lockout; material or labor restriction by any governmental authority or any delays, 3 backlogs, or slowdowns associated with the same; inability to obtain materials due to supply chain disruptions; civil riot; declared state of emergency or public health emergency or pandemic (including, without limitation, COVID-19); government mandated quarantine or travel bans; government mandated closures, disruption, breakdown, delayed production or interruption for any period of time; and interruptions to transportation, or the use of equipment, labor, or materials, including, without limitation, the closure of government buildings, airports, harbors, railroads, or pipelines, or other infrastructure due to worldwide or regional pandemic or other health related event disruptions. 4. As of the date hereof, to the best knowledge of the Parties, there are no defaults under the Agreement which remain uncured. 5. The remainder of the Agreement, including all Exhibits, shall remain unchanged and in full force and effect. 6. Within 30 days of receipt of an invoice from the Town, Crossroads shall reimburse the Town for all actual, reasonable legal fees incurred by the Town for the preparation of this Amendment. 7. Crossroads shall use commercially reasonable efforts to complete any renovations and cause the Entertainment Venue to be operational on or before November 30, 2021 (the Entertainment Venue Deadline ). If Crossroads breaches the foregoing covenant, commencing on the Entertainment Venue Deadline the Town shall have as its sole and exclusive remedy the right to assess the penalty set forth in Section 2.b.vii.B. of the Agreement. 8. The Town hereby unconditionally and irrevocably releases, acquits and forever discharges Crossroads, its successors and assigns, of and from any and all liabilities, actions, obligations, causes of action, claims, demands, damages, costs, expenses and compensation whatsoever, whether known or unknown, now existing or hereafter arising, at law or in equity or otherwise, arising out of the failure to operate a the Movie Theater or Entertainment Venue through the date of Entertainment Venue Deadline, including, without limitation, the penalties set forth in Section 2.b.vii. of the Agreement. WHEREFORE, the Parties have executed this Amendment as of the Effective Date. TOWN OF VAIL, COLORADO ________________________________ Scott Robson, Town Manager ATTEST: _________________________________ Tammy Nagel, Town Clerk 4 CROSSROADS EAST ONE, LLC, a Colorado limited liability company By: _________________________________ Name: ______________________________ Its: _________________________________ STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of ___________, 2020, by ____________________ as ________________________ of ________________________, a _________________________. My commission expires: (S E A L) ______________________________ Notary Public