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Amendment to BV Development AgreementRECEPTION#: 647396, R: $63.00, D: $0.00 DOC CODE: AGREEMENT Pg 1 of 11, 05/16/2018 at 02:35:55 PM Janice K. Vos Caudill, Pitkin County, CO AMENDMENT TO BASE VILLAGE DEVELOPMENT AGREEMENT THIS AMENDMENT TO BASE VILLAGE DEVELOPMENT AGREEMENT (this "Amendment") is entered into as of .-i 1 Z , 2018 by and between SNOWMASS VENTURES LLC, a Delaware limited Aability company ("Developer'), and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado home -rule municipality (the "Town"). WITNESSETH: WHEREAS, the Town and Snowmass Acquisition Company LLC ("SAC") entered into that certain Base Village Development Agreement dated September 19, 2016 (the "Development Agreement"); WHEREAS, pursuant to that certain Assignment of Town Agreements dated December 22, 2016 (the "Assignment') by and between SAC and Developer, SAC assigned to Developer and Developer assumed from SAC all obligations of SAC pursuant to the Development Agreement accruing from and after the date of the Assignment; and WHEREAS, in connection with the execution of the Assignment, SAC conveyed the portions of the Property (as defined in the Development Agreement) owned by SAC to affiliates of Developer and Developer and such affiliates took over the development of such Property in accordance with the terms of the Development Agreement; and WHEREAS, Developer has received approval of the Town to certain changes to the Ordinances (as defined in the Development Agreement) for the Base Village Project as more particularly described in Ordinance No. 1, Series 2018 (the "PUD Amendment") and in connection therewith the Developer and the Town wish to amend the Development Agreement to conform with the Ordinances, as amended by the PUD Amendment. NOW THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the parties agree as follows: 1. Amendments to Development Agreement. a. Amendment to Section 1.4.3 of the Development Agreement. i. Section 1.4.3(a) is restated in its entirety as follows: "May 31, 2016 — Commencement of Construction of Roundabout: This date is the deadline for Commencement of Construction of the Roundabout. The Town acknowledges that this milestone was satisfied by the Developer prior to the deadline." ii. Section 1.4.3(b) is restated in its entirety as follows: "November 1, 2016 — Substantial Completion of Roundabout: This date is the deadline for Substantial Completion of construction of the Roundabout. The Town acknowledges that this milestone was satisfied by the Developer prior to the deadline." iii. Section 1.4.3(c) is restated in its entirety as follows: "July 1, 2017 — Final Completion of Roundabouts: This date is the deadline for Final Completion of construction of the Roundabout and Mini Roundabout. The Town acknowledges that this milestone was satisfied by the Developer prior to the deadline." iv. Section 1.4.3(f)(v) of the Development Agreement is hereby deleted in its entirety. v. Section 1.4.3(g) is hereby added to the Development Agreement, as follows: "March 1, 2020 — Substantial Completion of Buildin-as 7 and 8. This date is the deadline for substantial completion of construction of Building 7 and Building 8 with the medical clinic space on Lot 3." b. Amendment to Section 1.4.4 of the Development Agreement. Section 1.4.4 of the Development Agreement is hereby deleted in its entirety and replaced with the following: "1.4.4 Liquidated Damages. "Liquidated Damages" means the amount of One Thousand Five Hundred Dollars ($1,500.00) per day, commencing on the first day following termination of the milestone deadline in Section 1.4.3(f)(iv) for Substantial Completion of the Building 6 Community Facility or Section 1.4.3(g) for Substantial Completion of Building 7 and Building 8, if an Event of Nonperformance occurs with respect to that milestone deadline. The Liquidated Damages will continue to accrue until the actual date of Substantial Completion of each of the Building 6 Community Facility and Buildings 7 and 8, up to an aggregate maximum of One Million Dollars ($1,000,000.00). The Developer acknowledges and recognizes that the Town will sustain damages and losses as a result of any such Developer failure, the exact amount of which will be difficult to ascertain. Therefore, the Town and Developer agree that if Developer fails to achieve Substantial Completion of the Building 6 Community Facility, Building 7, and Building 8 within the applicable milestone deadline, the Town shall be entitled to recover the Liquidated Damages from Developer, as liquidated damages and not as a penalty. Until the Developer pays such Liquidated Damages for failure to perform the milestone deadline in Section 1.4.3(f) (iv) and/or Section 1.4.3(g), the Vested Property Rights granted under Article I of this Agreement shall be deemed terminated, except as to Buildings 7, 8 and 13B and any other building for which Commencement of Construction has occurred after the date of this Agreement. In such event, the termination of the Vested Property Rights granted under Article I of this Agreement is not a compensable takings and such termination is specifically agreed to not be a compensable taking, but rather an agreed upon consequence of failure of the Developer to pay the Liquidated Damages to the Town. Notwithstanding anything to the contrary herein, if the Developer pays the 2 Liquidated Damages, the Vested Property Rights granted under this Agreement will be reinstated retroactively as though never terminated." c. Amendment to Exhibit A, Development Milestone Matrix. Exhibit A to the Base Village Development Agreement, entitled "Development Milestone Matrix" is replaced in its entirety by Exhibit A to this Amendment. 2. Requirement and Security for Contingency Commercial Parking. Pursuant to Item 6 under Section Three, Action and Recommendations, of Ordinance No. O1, Series of 2018, approving the Minor PUD Amendment for Buildings 7, 8 and IOAB, Base Village PUD, Developer is required to provide future commercial/retail parking of twenty two (22) parking spaces (the "Contingency Commercial Spaces"), which requirement and potential for reduction or elimination thereof is more fully set forth in the following provisions: a. The base starting point is that the 22 Contingency Commercial Spaces are required. However, prior to obtaining a building permit for Building IOAB, Building 11, or Building 12 whichever permit is applied for first, Developer will retain an independent parking consultant to conduct a comprehensive parking study and mobility analysis for the Base Village Parking Garage designed to evaluate whether there is a need for the Contingency Commercial Spaces and, if so, how many additional Contingency Commercial Spaces. Such study and analysis shall take into account the new transportation and mobility initiatives and evaluate whether such initiatives mitigate the need for any Contingency Commercial Spaces. The identity of the parking consultant shall be subject to Town Staff approval. Town Staff and Developer will work with the consultant in connection with such study and evaluation and together shall reasonably determine if the requirement for the Contingency Commercial Spaces can be reduced and if so by how much; provided, however, that if Town Staff and Developer are unable to agree, the reasonable determination of the Town shall be final and binding. The number, if any, of Contingency Commercial Spaces so determined to be needed is referred to herein as the "Required Additional Commercial Spaces". b. Any Required Additional Commercial Spaces shall be constructed by Developer as part of the development of Buildings l OAB, either as part of any one phase or in combination between phases as determined by Developer in its sole discretion. In the event that Developer completes construction of Buildings 1 0A1 and the Required Additional Commercial Spaces are not constructed as part of such development, or in the event that the Required Additional Commercial Spaces are not so constructed on or before November 3, 2024, Developer shall be obligated to pay to the Town the sum of Twenty -Five Thousand Dollars ($25,000.00) for each Required Additional Parking Space not so constructed, up to a maximum payment (if all 22 Contingency Commercial Spaces are required and none are constructed) of Five Hundred Fifty Thousand Dollars ($550,000.00), payable within thirty (30) days following written demand by the Town (the "Contingency Commercial Parking Payment"). C. As security for Developer's obligation to pay the Contingency Commercial Parking Payment, an affiliate of Developer, Aspen Skiing Company, LLC ("Guarantor"), shall execute and deliver to the Town upon mutual execution of this Amendment that certain Payment Guaranty guarantying the timely payment of the Contingency Commercial Parking Payment, if any, in the form attached here to as Exhibit C and incorporated herein. (For clarity, there is no 3 Exhibit B to this Amendment—Exhibit B shall remain the current Exhibit B to the Development Agreement.) 3. Change of Notice Address. In accordance with Section 4.9 of the Development Agreement, Developer hereby notifies the Town that the address for notices for the Developer hereafter shall be as follows: If to Developer: c/o East West Partners, Inc. 126 Riverfront Lane, 5t' Floor P.O. Drawer 2770 Avon, CO 81620 Attention: Andy Gunion With copies to: KSL Capital Partners, LLC 100 Fillmore Street, Suite 600 Denver, CO 80206 Attention: Kevin R. Rohnstock, General Counsel and Chief Compliance Officer Aspen Skiing Company, L.L.C. 222 North LaSalle Street, Suite 200 Chicago, IL 60601 Attention: James S. Crown Aspen Skiing Company, L.L.C. 117 Aspen Business Center Aspen, CO 81611 Attention: Rana Dershowitz Davis Graham & Stubbs LLP 1550 17th Street, Suite 500 Denver, CO 80202 Attention: Catherine Hance Sherman & Howard LLC 320 W. Main Street Aspen, CO 81611 Attention: B. Joseph Krabacher 4. No Other Amendments. Except as expressly provided in this Amendment, each of the terms and provisions of the Development Agreement (including all appendices, exhibits and schedules thereto) shall remain in full force and effect in accordance with their terms. The amendments set forth herein are limited precisely as written and shall not be deemed to be an amendment to or waiver of any other term or condition of the Development Agreement or the documents expressly referred to or contemplated therein (including all appendices, exhibits and schedules thereto). 4 5. Successors and Assigns. The terms of this Amendment shall inure to the benefit of, and be binding upon, the respective successors and assigns of the parties hereto. 6. Recording. Developer and the Town each shall have the right to record this Amendment in the records of the office of the Clerk and Recorder of Pitkin County, Colorado. [signature page follows] IN WITNESS WHEREOF, the parties have executed this Amendment as of the date set forth above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: Name: Title: SNOWMASS VENTURES, LLC, a Delaware limited liability company Name:G 6'v), 6 I, Co STATE OF COLWPO ) ss. COUNTY OF& -4 ) foregoing instrument was acknowledged before me on this,— day of Aajg�� 2018, by , as of the To `wn'of''Snowmass Village, Colorado. WITNESS my hand and offici a . My commission expires (SEMO�+DA B. COXON Notary Public NOTARY PUBLIC STATE OF COLORADO NOTARY ID #19974008526 Iq My Commisalon Expires June 8, 2021 STATE OF COLORADO ) _ ) ss. COUNTY OF ) The foregoing instrument was acknowledg d before me on thisp2� day of 2018, by as of Snowmass Ventures, LLC, a Delaware limited liability company. WITNESS my hand and official seal. My commission expires NDA B. COXON NOTARY PUBLIC STATE OF COLORADO NOTARY ID #19974008526 My Ccmrnission Expires June 8, 2021 7 EXHIBIT A Development Milestone Matrix R"tilred ; Town PAllestone Task/'Work Performance Date lAcknowledgement Submit Corr#trtrpn This date is the eieadline for Do -#eloper to submit Documents Plans for tfre "Construcnon Documents" for the Roundabout Cxtobesr 1. 2014 Roundabout touting of r�roety (90%) pefcant complete urrstrutt oo drawings. This date is the deadline for Developer to submit ar apriation to amend the PUC] for Lots 2, 3 & 4, to lci bmittatlon(s) far Su b itAp wmend anVor affirm the PUD for tests 5, {s, 7 & 8, and October 15, 201 S . dale to prmwe a tompreheR 0,je gate of all approvio and PUD documents affected by such applicat Submit and prcrAde Developer s all deliver (i) a letter of trent (n) a Financuo Guarantees for payment "perfQrmarxe bored or (in) other security Rnarndakpmd, Upper 'Wood which is reaunably acceptable to ttw Town January 5. 2015 Road lfrrirovpts and (hereinafter, the "PerformarKe Secwity"), based on 5nowmelt System at such pr�ivary cast ®so-ates. iL;ax E ntry Commencer`�ettt of This date Is the deadline for Commenceme*mt of May 31, 2016 Construction of Roundabout Construam of the Roundabout. Submit C tructitars This date is the deadline for Developer to submit s f +ocufor Upper Domments Plans il "Comtructresr Documents" fof the Upper Wood Road ��* L 201 r Improvemeots consistftof ninety 19�j percent Wood Road #m ments rtsmpiete construction dfar oW- Substantial Completes of This date is the deadline for SubstamWl Complet,on of ember 1, 2016 Roundabout consirucuon of the Roundataout_ Final Completion of This date is the deadlime far Final Completion of July 1, 2017 Roundabout co!struct on of the Roundaboul Commencement of This elate is the deadline foaf Commencement of Construction of Uj:j)-er Ccostn4tvon of the Upper Wood Road tmpfQvefrents May 1, 2018 Wood Road improvements Commencement of This +Sate is the deadline for Commencement of ' Construction of Showfneft Constructim of the Snowmek System at Garage Entry, None c System at Garage Entry Fired C.onoetion of upper This date is the deadline to adi*ve Final Completion of November 1, 2018 Wood Read Improvements cortstr cwm of the Upper Wood Road Impfovements Substantial Complewn of This date is the deadline to actrieve Substantiat Snowmeh System at Completion of construction of the Snowmen System at November 1, 2018 Garage Entry Garage Entry, Substantial Completion of This date is the deadline to ach env Substantial November 1, 2018 Community Facility Completion of coestru"ion of the Community Facility. Substantial Completion of This date is the deadline for Subsuntial Completatan of Ncwc+rr,ber 1, 2018 Lest 2 eonstrucuon of Lot 2 his dat* is the deadline for Substantial Cormplet� of wbstanrlal Comp{et n of 2 of tot 3, including 8vai* 7 amt BG a co tr da Marcl- 1, 2020 Lot 3 8 with the medical tunic space. -- -- EXHIBIT C Form of Security Guaranty PAYMENT GUARANTY THIS PAYMENT GUARANTY (the "Guaranty") is made and entered into this I-)- day of t"t j ! 2018, by and between ASPEN SKIING COMPANY, LLC hereinafter referred to as "Guarantor", and THE TOWN OF SNOWMASS VILLAGE, a municipal corporation, hereinafter referred to as "Town". WHEREAS, SNOWMASS VENTURES, LLC, as assignee Developer pursuant to that certain Assignment of Town Agreements dated December 22, 2016, is the "Developer" as that term is used in the Base Village Development Agreement dated September 19, 2016 (the "Development Agreement") and as used in the Amendment to Base Village Development Agreement dated t2 -rt] ":L, 2018 (the "Development Agreement Amendment"). A copy of the Development Agreement Amendment is attached to this Guaranty as Exhibit A and the terms of Section 2 thereof are hereby incorporated into this Guaranty. Capitalized terms used in this Guaranty shall have the meaning as defined in the Development Agreement Amendment unless separately defined in this Guaranty; WHEREAS, pursuant to Section 2 of the Development Agreement Amendment, Developer is obligated to pay to the Town, subject to the conditions set forth in Section 2 of the Development Agreement Amendment, the Contingency Commercial Parking Payment, and Section 2.c further requires security for such payment in the form of this Guaranty; WHEREAS, Guarantor is an affiliate of Developer; and WHEREAS, the Town has confirmed that this Guaranty is sufficient form of financial assurance acceptable to the Town in satisfaction of the obligation set forth in Section 2.c of the Development Agreement Amendment. NOW, THEREFORE, Guarantor hereby covenants with the Town as follows: 1. Guarantor hereby guarantees the due and proper payment to the Town of the Contingency Commercial Parking Payment, or any applicable portion thereof, when and as payable to the Town in accordance with Section 2 of the Development Agreement Amendment. 2. In the event Developer fails to timely pay the Town any amounts properly due of the Contingency Commercial Parking Payment, Guarantor shall pay the Town such amounts, in an amount not to exceed in the aggregate the sum of Five Hundred Fifty Thousand Dollars ($550,000.00). 3. This Guarantee shall remain in effect until the Required Conditional Commercial Spaces are constructed by Developer or the Contingency Commercial Parking Payment is paid in full, whichever first occurs. 4. This Guaranty is to be governed by and construed under the laws of the State of Colorado. IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year first written above. ASPEN SKIING COMPANY, LL By: - Title: 0" 1 I I