HomeMy WebLinkAbout1999 Resolution No. 050RESOLUTION NO . !if)_
SERIES OF 1999
A RESOLUTION SUPPORTING THE "FIRST AMENDMENT TO PRE-DEVELOPMENT
AGREEMENT' WlTH MILLER WEINGARTEN REALTY, LLC ., FROM THE
ENGLEWOOD ENVIRONMENTAL FOUNDATION FOR THE CINDERELLA CITY
REDEVELOPMENT.
WHEREAS, The Englewood Enviro !llllental Foundation was formed to relieve the
burdens which would otherwise be s sa wned by the City of Englewood , Colorado, in
connection with the environmental remediation, land use planning and preparation £or
redevelopment of the Cinderella City shopping center; and
WHEREAS , the Englewood Environmental Foundation was formed to provide support for
the redevelopment and enhancement of the City's comm~rcial environment and ii a aeparate
and distinct corporation; and
WHEREAS, the City Council of the City of Englewood, Colorado, Rupported the Master
Plan proposed on August 10 , 1998 by the Englewood Environmental Foundation; and
WHEREAS , Engle1Yood City Council adopted Resolution No . 100, Serie ■ of 1998,
supporting the Development Agreement bet\Yeen Miller Weingarten Realty, LLC ., and the
Englewood Emironmental Foundation for the Cinderella City Redevelopment;
NOW, THEREFORE , BE IT RESOLVED BY THE CITY COUNCIL OF THE C!TY OF
ENGLEWOOD, COLORADO, THAT:
~-The City Council of the City of Englewood, Colorado, hereby eupporta the "Fint
Amendment To Pre-Development Agreement" with Miller Weingarten Realty, LLC ., at the
Cinderella Cit-; site under the general terms and conditions of the Agreement attached
hereto as "Exhibit A".
~ This resolution of support in no way waives or delegates the City's regulatory
powers, duties and responsibilities with respect to zoning and governmental issues.
ADOPTED AND APPROVED this 19th day of April, 1999 .
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I. Loucrishia A. Ellis, City Clerk for the City of EnglewoodAlorado, hereby certify the
above is a true copy of Resolution No..sz). Series of 1999. t,/
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[11ST WENQMOO to l'U:QIYELOJ'MEYT AGREEMENT
This First Ammdmcm ro Pre-Dev~lopmem Apmnent ~ made aad aiiaed imo
!his 20th d2y of April, 1999 by and belweeo !:NGLEWOOD ENVIRONMENTAL
FOUNDATION, INC ., a Colorado non-profit corporation ("EEF"), aod MILLER
WEINGARTEN REALTY, LLC. a Colorado limited liability Company ("Developer"),
SECTION 1
-RECITALS
I.I The City of Englewood , Colorado ("City") and Developer entered inro a Pre-
Develop!DCIIL Agreement dated as of kbruazy 10 . 1!198 relating to redevelopment (the
"Redevelopment Project") of the regional shopping center previousl y lcnown as "Cinderella
City·. EEF now holds title ro lb,: proptrty w be redeve!Ofc 1 and has assumed the benefits
and obligations of the Cicy under the Pre-Development Agreement.
1.2 As pan of the Redevelopment ProJctt , the City has entered into an lmer-
gove:nmemal Agre,:mem with the RCjlooal Transpon;won Disaict ("RTD "). wbich requires
die City ro complete and make available for use by the RTD certain improvements comprising
pan of the Redevelopment Project according 10 a schedule to be furnished by RTD .
1.3 EEF and Developer have been in the process of negotiating a Master
Development Aireement which will provide for Developer to act as the Master Deve loper of
the Redevelopment Project. and will also provide that the Developer will acquire . hy long-
term ground lease . and develop for retail anu emenainrnent uses poni,,ns of the property
illcluded in the Redevelopment P:oject ("Rewl /Entcrtainment Property "). !tis contemp!3te-J
that the demolition and fill work at the Redeve!o pmcnt Project currently bein~ '1;;:.c: by EEF
will be complete by June I. 1999 . elcept for the crushi ng process which will be completed
by June 21 , 1999 , a,Jj the Redevelopmcru Project will be turned over 10 the Masr.-:r Developc:
when all such work Cl,ept the crushing is completed (the rum over date estimated to be Jw,e
I. 1999) and the Mast•r Developer will complete the site work it will be required ro ,lo wxler
lbe = of the Master Developer Agreement . It is also contemplated that the Developer will
consummate its acquisition of the ground lease interest in the Rctail/Entenainment Propeny
witllin 75 days following the date it commences its work as the Master Developer . The date
the Redevelopment Project is =d over to the :\laster Developer to allow it ro commence
its site work as provided in the :\faster Development Agreement is herein referred ro as the
"Master Development Coauneru:ernent Date .· The :losing by the De• elope,· of its r.qu1Sition
of the ground lease interest in the Re2ili Enterta inment Propcny i! ,1ercin referred ro as the
"Master Developer 's Land Closing .·
1.4 In order ro insure that the rede velopment acuvities which have already been
:o mmcnced will continu.: without inte=puon . and to insure that the Rede velormcnt Project
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can be completed in sufficient lime to meet the requiml complmioa ._ under tbe
illlergave!"'llllellla1 Apemem t,etween the City aod RTD, EEF and the Developer clan fO
amend die ~Develop!IIIIDl Ap:emcnl to provide !or addllioaal tbia aad r spo111ibllilill
to be pmonncd by each party from lbe date of lhis F'trSt Am. .dmem llllDI either the Muter
Developsru,!11 Commencement Date or the termination of dK •. e-Developmcru A~
NOW. THEREFORE, in consideration of the mutual cO\lenams collllincd
herein. the parties hereby amend and exlend the Pre-Developme111 Apeemcnt on the tenm and
conditions herein.after provided .
SECTION 2
AGREE;\IEYT
2. l From and after the date of lhis First Amendment. the Developer shall perfonn
the following duties and development activities , and shall complete the same on the daces
specified . ·
(a) Developer has prior 10 the date of lhis Amendment obrained a lener of
intenr from Regal 10 lease and operate a movie tbe3ter of not less than 95 ,000 sqU31:e feet or
more ("Cinema Lease "). Developer shall obrain approval by EEF of such tenant within seven
(J) days following the muruaJ execution of lhis Amendment.
(b) Developer shall provide EEF with the fine draft of a Lease Agreement
with either Mann Theaters or such other tenant as Developer proposes for the Cinema I.ease ,
OD or before May 1. 1999 .
(c) Deve lo per shall obtain approval of the City for the elevations of the
improvements relallll8 10 the Cinema Lease by the date designated on the schedule auached
hereto as E.1hil2iLl ("Interim Performan~c Schedule"). Developer and the tenant of the
Cinema Lease shall linalize and execute the Cinema Lease by the date designated OD the
Interim Performance Schedule .
(d) Developer shall furnish IO EEF , OD or before the date designared OD the
Interim Performance Schedule , drafts of leases with proposed restaurant ten.anrs and with
Bally's for nor more than 24,000 square feet 10 be lc-carcd on the second floor of the retail
build~ opposite the Civic Center Building . Each of these leases sball be finalized and
e1 :cuted by the dale designt.red on lite Interim Performance Schedule .
(e) Developer shall submit tu thr City for admini,arative review a sigmge
plan for the Redevelopment Project by the date designated on Ille Interim Performance
Schedule . Developer shall C'btain apprcval of such plan by the Planning Commission . and
11\ot,Cl,.CU.C."IT'.IC'~~·.IIIIU:)t'tOI.AY.l
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shall obtain City Council approval for such plan by Ille dates d ·t,:nated Oil rb.e lmerim
Pmormance Sche<1ule.
(f) The Developer shall complete all enviromnental inspecnons and
investigation which Developer desires 10 Wldcrtake by the date designated on rb.e Interim
Performance Schedule . In die event Developer objects to any environmental conditioa. it sllall
so notify EEF on cir before rb.e date designared for such objection on Ille Interim Performance
Sc:bcdule. EEF shall have ten (IO) days following receipt of any such notice to determine and
advise Developer in writing whr.ther EEF will uodertalcc any actio.n to cure the objectioas
specified by Devel,,per, and the date by which any such curative activity will be completed.
Developer shall then have ten (10) days following r~eipt of such response by EEF 10
detcllDine to either '.lCCepl such respoase . lo waive such objection. or 10 terminate the Pre -
Development Agr,eement, in which case each pary shall be released from any fUrther
oliligatioo to the o!her.
(g) Developer shall provide to EEF a survey and preliminary subdivision plat
of the property included in !he Redevelopment Project by the date dc:signated on the lntenm
Performance Sched.ulc .
(h) Developer shall finalize with EEF. i,1 the date designated on the Interim
Performance Schedule, Developer's agreement to the fr.llD and substanee of the Common Area
Maintenance ("CAM") Agreement , the Easements , Co venants and Rtsttictions ("ECR")
Agreement, and Gro\Jlld Lease for the Retail/Entcnainnent Property .
(il On or before April 23 . 1999, Developer shall submit to EEF design
drawings and details of the scope of the work to be performed by the Master Developer in
connection with the Redevelopment Project. Within two (2) weeks following the submi ssion
by De veloper, and subject to paragraph 2.3(b), EEF and the Dc,·eloper shall agree upon the
final forrn of design drawings aod _ the description of the scope of the work . The approved
description and drawings shall be initialed by both parties and attached as ~ to this
First Amendment .
Ul Developer sha!J perfonn such other work or ia;ks . and by such dates,
as are designated ()11 the Interim Performance Sch.:dule 10 he periormcd by Master Developer
prior to lhe Master Developer Closing Date .
2.2 From and after the date of th;s First Amendment . EEF shall perform. by the
dates specified, the following duties and development activities :
(a) EEF shall submit 10 the Duec1or of Neighbuhood and Business
Development a prellllllinary subdivision plat of the Red~~clopmeDI Project on or bcfore ten
(10) days following its receipt from the Developer of the 1urvcy and preliminary subdivision
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plat. EEF shall oblain approval of the PlamJing Commission and the Ciiy COIIIICil 10 a final
subdivision plat a fiDal appro~·al by the Planning Commission by the dara des~ Cll tbe
Interim Performance Sched' ·le.
(b) EEF shall continue iu current demolition and fill activity at tbe
Redevelopment Project, and suth wor excQC for the crushing proce:;s, shall be compleled
by June I , '999, and the crushing proc~ sball be compleled by June 21 , 1999 .
(c} ;Ef shall obtain , by the dates designaled on the Interim Performance
Schedule, approval of the Planning Commission and the City Council to the vacation of the
portion of Floyd SU'eet which is to be included m the property 10 be $.Id to Wal-Mart.
(d) EEF sball submit to Developer. on or before the date of mutual execution
of this Amendment , for review by De veloper . a first draft of the following agreementS by
April 15, 1999 :
(I ) First draf: of the ECR Agreement ;
(2 ) First dr aft of the Master Dev~lopment Agreement ;
(3) First draft of the Ground Lease Agreement .
2.3 The parties acknowledge and agree that the draw ing ("S ue Delivery Plan"),
which has been initialed by both parties and is actached hereto as &llllil2il..], reflectS the
requirementS of the Master Developer for the condition or the Propeny at the time it i~
delivered by EEF to the Master Developer . incl uding grade elevations of the Pr~.-::ty, as we'l
as final ~g of roads and intersections . EEF agrees to deliver it in such cooditiot ·. l>y Jlille
I, 1999 , e: ·ept the crushing process (and remlting storage of crushed rnaterws) will not be
completed prior to June 21, 1999 . The Master Developer shall provide EEF , or before April
30, 1999, the specifications for the elevation it desires for the retail pad sites at the time EEF
delivers the Property to the Master Developer . and such specifi~ations shall then be initialed
by both parties and shall b~ deemed an addition tu the Site Delivery Plan. In the event the
Master Developer fails to provide such additional spec ificar ions by Ap r.I 30, 1999, the Master
Developer shall accept the condition of such pad sites as ~fl~ted on the e:,;isting Site Plan
Deli very Plan.
2.4 The parti.e.; acknowledge and agree that •.ile following cerms shall be included
in the Master Development Agreement :
(a) Toe Developer s..'1all pay SI0 ,(00,000 ("Growxl Payment", which term
shall include any adjustmentS as h~rcinafte r prov .Jed) to EEF as the growJd lease rental
(pursuant to lbe Ground Lease) for the Retail/Entertainme:,t ProvertY, wh ich property is
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designated on the attached al2k!. to this First Amendment. The payment amount shall be
subject to increase in the event (I) the theater leases more than 95,000 square feet, (2) the
mail buildings south or the Wal-Mart sire consist of more !ban 37,000 aggregate square feet,
(3) the Goldmine pad is rented for an amount in excess of SS0 .000 annually, or (4) the retlil
building opposite the Civic Center Building consists of more than 27 ,000 square feet. The
adjustment will be based on a pre-determined formula mutually agree<.! to , and the 1st
$300,000 .:,f such adjustment ml 50% of any additional adjustment shall be 3dded to the renral
payment paid to EEF. The Ground Paymem (together with payments received from Wal-Mart
ind Forest City for their property acquisitions) shall be depcsited in a construction project
disbunement account ("Project Account") which will be disbursed by EEF to pay costs for
the CC Redevelopment Project , including payments to be applied to the Master Development
FL,ed Price .
(b) The Developer shall agree to complete t.ie scope of work . as Masr~r
Developer. as reimed to in pmgr;ipb 2.l(i) abo"e . for a fixed price ("Master D~velopinent
Fixed Price) vf S 19 .500 ,000 (subject to adjustment as hereinafter provided) to be paid by EEF
to the Developer on a percemage of completion basis . Toe Master De velopment Fixed Price
shall be paid by disbursements from the Pro,ect Fund, disbursement by RTD under the
lmergo~·emmenral Comr.ict and proceeds from the sale of the Certificates of Participation . In
the event tl!e General Contract , as agreed to b)' the General Contractor and Developer,
provides for actual amounts less than the es ti mates curremly provided for soft costs . general
conditions and General Contractor's profit. the Mast~r De\'elopmem FL"d Price shall be
reduced by an equal amount . The General Contractor shall obtain competiuve bids for frc,,n
its subcontractors and suppliers from contractors and suppliers reasonably acceptable to EEF.
If the toL1I of the bids. when added 10 the • Additions" as hereinafter defined . exceeds
519,500,000, EEF shall either (A) agree to pay the excess costs. or (B) EEF and Developer
shall mutually agree on a modification of the scope of work su ffici ent to redu ce the aggregate
cost to $19 ,500.000 . For purposes of this para graph. • Additi.:,ns" shall mean the actual
amounts set forth io the executed General Contract for (i) costs of.architects, engineers and
consultants . (ii) General Contractor 's soft costs inclurling insurance . bonds, ca.~es. pennits and
fees . (iii) General Contractor's fee. and (iv) Gene ra.I Contractor's general conditions (items
ii, iii. and iv not to exceed Ill the aggregate 12.5%).
(c) At the Master Developer's Lan<! Closing , Developer shall deliver to EEF
the ground lease pnce of Sl0,000,000 (ad;usted for any increase as herein d~,eribed) either
by an irrevocable unconditional letter of credit , or by wire transfer of good funds , which
amount shall be held in the Project Fund .
(d) The only condiuons to De vel oper's obligation to complete the Master
De\·e!opt·r's Land Closing shall be :
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(I) Delivery by EEF of marketable litle to the leuchold inlerest to •
be a~quircd by Developer .
(2) !:upport by City Council of the tenant of the Cinema lease.
(3) Closine of tbe acquisition by Wal-Man or die ponio11 of die
Redevelopment Project to be acquired by Wal-Man ml die
payment by Wal-Mart 10 EEF of Ille purchase price of
$3,400.000 .
(4) Eitctutioi: ;iy Foresr Cicy of an agreement to lease from EEF tbe
portion or die Redevelopment Project to be redeve!opcd as
mtdential lmail use and !he payment to EEF or S2,400.000 as
may be adjusted by agreein,,nt between Forest City and EEF . In
!he evem such a&reeme:it has not !hen closed. the agreement shall
include the right by EEF to obtain specific performance, and
Forest City shall have made a non-refundable deposit of not less
than SS00.000 .
(5) Approval by the City of the final subdivision plat and vacation of
the portion of Floyd Scree: to be included in the pro~rty
com·eyed ro Wal-Mar1.
(e) The Master Dovelopment Agreement shall include the other rerms and
conditions as set forth on the Deal Shee1 anached hereto as E.-slli))_iu.
2. S Within seven (i) days following the mutual execution of tlus Agreemeru . the
parties shall agree on an interim schedulr ("INe:im Schedule of Values") which shall be
initialed by bolh panics and shall be deemed att.1cbed 10 this Amendment as ~-The
Interim Schedule of Values shall include the amount sp:nt or incurre,I by each party for
arthilect fees, engineering costs , consultant fees. and other develilj)lllent q,enses (collectively
referred 10 as "Soft Costs") as of !he dare of emution of this Agreement . and Soft Costs
which each party estimates they will spend in connmion wilh the Redevelopment Project
subsequent to the date of execution of !his Agr<.ement, wluch Soft Costs shall be limited to
lhosc amoums which the parties agree shall t,,, deemed joint costs ("Project Costs") and which
shall be included in Ille Master De velopmei;t Fixed Price . The Interim Sc:1edule of Values
shall also include an estimate of additional costs or construction for work to be done by the
Master Developer from the date of mutua l e,~cution of !his Agreement to the Master
Development Commencement Date ( estimarecl to be June I , 1999), and for work w be done
from the dace of the Master Development Commenccmear Date to Master Developer 's land
Closina (estimated to be August 15 . 1999).
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2.6 In the event this Pre-Development A&r< ement is tmninaled fur '1!IY reason,
other than pursuant to Paragraph 4 .1, die Master Developer sball be mmbunc,f for die
amowm spem by die Master Developer prior to Ille date of taminalion, pron.Jed SDCh
lllllllllllS are lr.ctuded on the Interim Schedule of Values , , Project Cosa ag:ecd upon by EEF.
As a couditioo of such reimbunemem. Ille Maller .:levelcper shall deli-.er ID EEF all IIIDrills
relating ID the Redevelopment Project (including bu noc limited to drawinp, plans
specltlalioas, repons, estimates, bids, and scllcdules) iii the Master Developer's pouession
or Wider ils ccmrol, 111d die Master Developer sbalJ deli1-er to EEF Ulil,lllDfflD nf ill righn
wider its comract with Tryba or iny Olher arthite<:t, engiDmm& or oilier lhinl-pany
consulting comracu reJatiug to lbr. Redevelopment Project as EEF aiay rea,ombly requai,
!Oflecht wilh such comenD as are neceswy in conacction with lhc wignmcnrs oc to permit
EEF co use the materials it recei,es from Ille Mas1er Develuper.
SECTIONJ
EVENTS OF QEHLJ,T AND REMEDIES
3.1 Occurrence of the following evencs shall be deemed "Special Defaults by
Developer":
(a) Failure by Developer, following five (5i days wriru:n notice from EEF
(i) to furnish EEF with a first draft of the Cinema Lease by the date designated on the 1merim
Performance Scbed:.le as provided in pangraph 2. l(b); (iil 10 finalize and execute the Master
Development Agreement by Ille dat.: designated on the ln1enm Perfomwice Schedule; (iii) to
commence the wOfk as required under the Master Development Agreement by Ille Master
Development Commencement Dace .
(b) Failure, following ten (10) days wriru:n nonce to Developer, to perform
any of the other duties or obligations set forth in th is First Amendmem .
3.2 Sps;jal Evenu of Pcfe\llt bv EEF . In~ evem EEF falls to perform any di.ties
required to be performed by it under this First Amtndm em rollowing ccn (10) days written
notice, such failure shall coostirute a Special Event cf Default by EEF.
SECTION 4
REMEDJES OF CITY ON OC<JJBRZN<;E OF A SPECIAL EVENT or DEBlJ.I BY DEVELOPER
4.1 If any Special Event of Default by ~c Developer occurs , EEF sllall have as its
sole remedy the ri~ to either (i) tcrminacc this agreement by written ootict to the Developer,
in which event c2Ch party shall be released from any funru:r obligation or liability to !he odler,
including :my obligation by EEF 10 proceed with De-eloper as the Master Development or to
proceed with the a&reemcnt to convey Developer a ground lea.se inierest in the
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Rcwi/Emertlinment Property, or (ii) to obtain a substirute party to perf om'. tile work of the
Master Developer for tbe Redevelopmeni Project, but proceed with the aareemeiu to comey
Developer a grOWld lease intemt in the Retail/Emenainment Property. Upon rhe exercise by
EEF of either remedy:
(a) EEF shall reimburse: the Master Developer only for such amOIIIIIS paid
or incurred by th· Master Developer after the date of murual execution of this A&recmeru and
prior to the dat~ of termination, provided such amounu ~ included 1i11 die In=rim Schedule
of Values as Project Costs agreed upon by EEF. All amounts paid or incurred by the Master
Developer prior to rhe date of mutual execution of chis Agreement shall be the sole obligation
of the Master Developer, and the :-.taster Developer shall indemnify and hold EEF and the
City harmless for all such 1moun1>: ana
(b ) The Master Developer shall deliver to EEF all materials retating to the
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Redevelopment Project (including but not limited to drawings . plans specifications. reports,
estimates. bids . and schedules) in the Master D,:,·e!oper's possession or under itS control. and
the Master Developer shall deliver to EEF assignmen:s of its rights under its c,ruract wilh
Tryba or any other architect , engineering or other third-party consulting contracts relating to
t!l~ Redevelopment Project as EEF may reasonably request, together with such consents as are
IJC .,s,ary in connection with the assignments or to permit EEF to use the m:neriab it receives. •
4.2 If a Special Event oi Default by EEF occurs. the Developer shall have. as its
sole remedy, the right to terminate this agreement. in which event <!aeh party shall be released
fn,:!l an y further obligatiun 10 the other ; provided . however . in the event Developer elects to
assign any .tgreement with Tryba or any other architect. engineer or third party consult.ant
relating to !he Redevelopment Project. EEF shall ;,romptly reimburse Developer for all
amounts paid for services rendered to d:,e under such agreement, and EEF shall then have the
right 10 either assume the , ights z·~ obligations under such agreement or to terminate such
agreement.
4. 3 In the event of tl :e occurrence of a S~ial £vent of Default by eit!Jer Developer
or EEF. the remedies set forth in paragraphs 4.1 and 4.2 shall be exclusive and in lieu of any
oilier remedies provided under the Pre-Deve!opment Agreement. The provisions of this
Section 4 with respect to the occurrence of any Special Event of Default shall supersede all
other provisions of the original Pre-Development Agreement. and to the e~tent of any conflict
between the original Pre-Development Agreement and this First Ameudrnent with respect to
the occurrence of any Special Event of Default or Remedies as a result thereof. the provisions
of this First Amendment shall control.
SECTIO~ S
MISCELLANEOt;s
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.'.U 1'ime is of Ille essence of Ibis F1111 Amndme~
5.2 The Developer hereby acbowlcdges ils COIIICDI IO Ille Ulignmenl II)· die City
to EEF of 1be Pre-Developmem A,reemem.
5.3 Except as berm modified or amended, die terms 111d CODditiom of lbe Pre-
DM!opmelll AaRemcm r.re bereby ratified 111d sbal1 ianaill iD 11111 farce and effea ICCOrdilla
10 lbeir termS, cxcepc 10 tbe exte11t of my coutlict betweea sucll origiDal a,w-'11111l and this
amendment, in which case Ille provisions of this Finl Amcndmem shall CC'!lllOI .
IN WITNESS WHEREOF . the parties have executed this FU'SI Ammhnent as
of die date first above wriaen .
ENGLEWOOD ENVIRONMENTAL FOliNDATION,
INC .
By : ____________ _
DEVELOPER:
Miller Weingartc.11 R.:a!ty. LLC.
a Colom o limited liability company
By : ____________ _
Stewart A. Miller , Manager/Member
By: Weingarten/Colorado, Inc ., a Texas corporation,
Manager/Member
By : __________ _
.9. ...,_
Ewbit 1
Exhibit 2
Exlnbit 3
Ex1uoi14
Eidlibil 5
Exhibit 6
IOOlfflIT$ IQ
EJllST AMENDMENT IP PRE-PEYElAMNI AGBEEMPJll,'I
Interim Performance Schedule
Desip Drawings and Descriprioa of Scope
Site Delivery Plan
Map of Retail/Entertaimnent .Property
Master Development Agreemi:m Deal 'Sbeel
interim Schedu.'e of Value.
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Praparty Definition:
DEALSHEFT
MaltardeYelc;pei Devtk,pnwnt l.;rttment
Englewood Town C::rttr Projact
March 2,. 1991
Clly ~ erv-x,d, Coloralo ("Clly'), Englewood Environ,ntntal
Fowidallon rEEF") and Miller Weingarten Realty LLC
~
1. Parcels he!d for reta~ development by MUler Weingarten ~
Shown in blue on il11ached l'!all)
2. P1~cil,g shared by 111 owners as provided in reciprocal -
(portions or arn shown in green on attached map\
3. Parcel to be sold to Wal-Mart (parcels shown in orang@ on allaCNd
map)
4 . Parcats to be leased/purchased to Forest City (parcels llhown in red
on attached m-'p)
TranNC:t!on Type : Ground lease to MNV ,,r.~ rights io use common area parking subjec:t to
reciprocal easement and CAM Agrnm,nt.
Ttrm: 75 year ground lease to MIW wit!, go dark provision
Price: S 10,000.000 (or unconditiona!, irrev~cable letter of credit) o~e at cioaing
Clost119 Datt: Masler Developer-wilt assume these des when s:11 Is ready for
delivery (est. 611199)
Land Acquisjli<,n-simultaneously with Wal-Mart ci.;;;;ng (on or before
8115199)
PlvAM II op11o,: Masterdeveloper granted Option to acquire on lease terms similar to the
terms of the acquisition of the Phase I propertle,, the surplus lands
owned by the City adjacent to Englewood Parkway between Elali and
CheroklK· Streets, hereafter , eferred to as -U,e Phase II propertie,'.
Op!ion expires July 1, 2000 , and must be exercised between 1/1/2000
and 7/1/2000. Acquisition price ia fair market value for retail use at the
time of exercise of the op~on . MasterdeVeloper development rights ere
limited tc r.itau on the P11Jperty City has thu right to discusa with other
developers nr users and aJternatJve uses on a back up basis .
llnterdevelope<
Obligations:
1. EEF ,:o,,tracts with MN'/ as Master Developer to complete site per
ap;.,, oved Master Plan and in ac::ordance wi1h plans and spec■ to be
mutually agreed upon fer a fixed price to be l1e!, :)liated ~ EEF
and W~N. M/W responsible for an c:oat overruns . except COIis
l'ltaled to demOfition 0r AIIUlting from cl1lllgl In ape~ by
City (whidl will bt change order iteffll p1ic1 by City), Redewlcpi,NIII
of Foley Bldg . • City '1all txduded frof1! ~ and City ,_
IOle respontft,IRty for this . o.lwanty 'Jf Compledon b)· Wllinr,a,1111 .
2. Completa fill requirld for onsite and o!faite development work-
Project fund will reimburse City for fill to dal9 bMed on percenlllge of
compll'tiQn appfled to~ amount.
3. Fulfill ol.~lgations under RTO contract to build trans~ facility and
parking spaces in accr,rdance with schedultJ ~ of RTO .
4. Fulf II obligations under any future RTO contract obllined flll' project
enh.1ncement funds (assumes funds from RTD or from other
sourc •• -~~• MasterDeveloper-ar. sufficient to mffl octigations)
5. Perfcnnar.ce dates for construction and phased delivery to be set by
pertcnnance schedule to be attached as schedule to Development
Agreement. including ·
a. Roads
b. Utilities
c. Transit. Plaza and Boulevard
d. Parking Lots and Structures
e . Parcels to be delivered to Wal-Matt and Forest City
6. Offs1tos to be completed by Master Developer
a. Englewood Parkway . including Cherokee Intersection
b. Elab Street
c. Traffic Signals
d. Inca-to be completed jointly by EEF and M/W, with EEF ID
be reimbursed for its cost based on percentage cl completion and
budget hne for work done to date
7. Signed lease with cinema operator for multiplex theater (with cloSing
ccntingenc-1) by May __ . 1999.
8. Complete construction (C .O) cl no less than 200 ,000 sf of retail
space by date(s) set fo"h in perfonnance schedule . subject to flm.l:
!I!iWl.ti:. with penalty of $3 .000 daily for delay .
9. City Council approval for retail leases on spaces larger than 7,000 sf
on the first time leased , and spaces greater than 75,000 sf for the
duration of the project.
10. Development adheres to City approved Design Standards and
Guidel ines for the Project .
11 . Accept property ·as is". tut demol~ion completed to stage per spe<:s
to be mutually detennined .
2
•
•
•
•
EEF
Ollligatlons:
12. Clllullty and labilily insurance to be obtained by M/W.
13. Muterdevtloper to Indemnity EEF and City for clalm8 (Including
environmental) arising fram work done by M/W.
14. Obtain CJty consent l0r general contractor-M-W nu engaged
Wanet Construdion/Saundtr$ C0111truction as its General
Contrac!Or . I
p
15. Taka over zoning or any other permitting proceu n the applicant {if
not then completed) as of date of mutual execution of Dl'lllopment
Agraement.
16. Negotiate in good faith (with City repreNmative particiJlllllt;n as City
determirms) parking av,il~bility on site and c,,sts for off site ~-arcels
{Chuck E Cheese and t3~nksl . 11
17 . Join in CAM Agreement
18. In the event Mastetdeveloper ma1erially defaults on proje<:t , tcnowing
notice and right to cu•?, EEF has right to terminate Development
Agreement and to take over project.
1. EEF redevelops Foley illdg. as Civic Center Bldg per performance
schedule .
2. EEF delivers site tc M/W. will'. demolition complete and partial fill,
per agree<:l upon specs and time per performance schedule.
3. EEF provides land needed for Eng1ew00d Parkway per perfcrmance
schedule.
4. EEF comoletes residential developer contract prior to Closing Datt
requiring mixed-ose development of indicated sije with no less than
275 residential units and aprx. 40,000 sf of street level retail and
commercial uses to be constructed per performance schedule {est.
June 1, 2000)
5. EFF ccmpletes Sale Agreement wrth Wat-Mart with closing on or
prior to Closing Oate.
6. EEF joins ir, CAM Agreement.
7. EEF retains development rights on ~ Parcel and p~r1cing area
north of Residential , provided City continues to make available
number of parking spaces for then existing development per
apprQved Mastef Plan ar.d anr contract commitments with Theater
and other tenants or ~ers.
Contnct
ContlngtodN:
Ealllllill lo lie
Completad
8. Menage dilblnement fnxn ~ 1-ld fDr project. 'includlng •
C00Pffllion in procening draws from COP 11111d and RTTI or 011111'
grant&. Fundl dilbul'Nd per CU1111may ~ draw
procedur1t .
9 . City don not waive govtrnme!11al immurilies, JUiies and
raponslbilllies
1. CloM WaJ.M~ sale on or beftt.-. Clotlng Date
2. Oewfopment Agrvement Will, rnidlnllll de'ltloper (specific
perfonnance contract with nonrefl.ndabte deposit) on or before
Closing Date
1. Final sne Plan
2. Scope
3. Property map-common area . ease/sale parcels
4. Project Budget Proforma
5. Project Performance Schedule
6. Cash flow --conslnletion cost schedule
7. PUD and Design Guidelines
6. RTO Contract with City of Englewood
4
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•
·Al'IDEnX:IM 1 TO DEAL SHEET
,JnJ
,n-:r., ... -3
, ~•lope-; Development Agl"Nfflent
y. Englewood Town CenC.r Project
Ma~h 31, 1999
The following ant additional terms or modilieation to prior tl!t'!lls reflected in Oul sneet
dated March 24 , 1999. The following terms were negotiated betw-.en M-W and EEF on 3129-
3130/99 .
L.md Price:
land Cl1>alng Date:
1999.
CommenQfflent
Date:
LANO ACQUISITION
$10,000,000 (or unconditional. mvoc.ble letter af credit) due at land
dosing.
Land Price will be increased if (and only if) one or more of tile following 4
IIY9l1ls occur:
A. If Cinema lease exceeds 95,000 square feet-land price
will be adjusted by formula for the excess square feet .
B If retaff l)\jjJdings to the south of Wal-Mart exceeds 37 ,000
square feet in the aggregate--land price 'Nill be adjusted by
formula for the e~cess square feet.
C If M-W obtain~ lease on Goldmine pad sije for annual rental in
excess of $80 ,000 per annum--land price will be adjusted, besed
on capitalizing the excess amount at 11 .62%.
0 If renlable Sp.K:e of building east of Civic Center exceeds 27 ,000
square feeHand price will be adjusted by formula for excess
square feet.
With respect to adjustnient for each of the above 4 events , the first
S300,000 aggregate adjustment will be paid to EEF as ~tional
land purchase price. and 50% of any aggregate adjustment above
S300,000 will be paid to EEF as additional purchase price .
Simultaneously wilt\ Wal-Ma :t Closing-estimated at August 15 .
MASTER DEVELOPER OBLIGATIONS
Site will be turned over to Master Developer when demolition and 1111
completed, and Master Developer will commence site development-
estlmalld at Jlme 1, 1999. Completion Clf CNShi119 process by EEF is
estimalad fw June 21 , 1999 .
Pnlject Cost
In the event M-W fails to dose land acquisibOn (exc:ept as • result al M-W
dlfluR), mOll9\' lpenl prior to tc:htdilllci dosing dale lo:" work on RTO
implvwtmtnts « EEF/Qy raquirld lmpravementa will be rlimburNd by
EEF to Muter ~. and othtr money spent 11y Developer (i.e. for
benefll of r9llil development) will be ri1k of Muter Dewtoper a. "d net
rwnbursed . Wark whkn ia rwimbunable by IEEF wtn be identified now.
EEF agreH to pay Master Oeveloper $19,500,000 as a fixed pric:e far
deve!Ollfflent of lhe Project baled on dflc:liption of scope to be
completed by Ci\y and M-W by April 15, 1999, which scope will be
attached as Exhibit 10 Amendment No. 1 to Pre-Development Agreement
(Interim Agreement ). Saunder1 shall obta,n competitive bids for from ita
subcontractors and suppliers from contmctors and supplier, reucnably
acceplable to EEF. If the total of the bids. when ildded to the "Addlllonv"
a lu!reinafter defined, exceeds $19.500,000, EEF shall either (A) agrw
to pa~ :i1e excess costs. or (B) EEF and Developer shall mutually agrtt
on a 1nodificatio~ of the scope of work suffic.ent 10 reduce the aggragata
cost to S19.500 .000 . For purposes of this i:aragraph. "Addibons· !lhall
mean the actual amounts H! for:h in the executed General Contraa for
(i) C01.ls of archijects . engineers and consultants. (ii) General Contractor's
soft costs 1nc!uding insurance . bonds . taxes , µerm11s ;nd fees . (iii)
General C0n1rac:0r's fee . and (iv) General Contractor's general
conditions (items ii. io, and 1v not to exceed in the aggregale 12 .5%).
S19.500.000 shall be adjusted idollar for dollar) rt (and only if) (i)
aggragate amount negotiated between M-W and Saunders is less than
12 .5% for Saunders ' general conditions, profit and soft costs, and/or (Ii)
the revised estimate of architect and engineer fees exceed $1,246.000.
CAM
M-W, a retail developer. will pay toward CA'-' S1.70 p.s.1. or% ecuivalent baled 011
OJrrent ntimaled CAM budget EEF agrees to be responsible for any "shortfall" in CAM
costs. if contributions from Wal-Mart. Forest City. RTD and out-pad users (i .e. Chuck E
Cheese, Banks , etc.) and Civic Center do not cover balance of actual costs .
EEF will take over responsibility of negotiating CAM contributions from all other land
-,.rs.
ks of 3130199 . above terms are subject to the following open issues, to be resolved and
agreed upon prior to April 5, 1999.
Re : $10,000,000 land price :
Verific:ation of Retail S,te costs vs . prcject site costs-following venfication. bolh
parties wil confinn what improvements within boundary of retail sites will be paid
•
for by M-W and not be charged as pro~ costs (wi:I not be part of the •
$19,500,000 find price).
Re: S19,500,000 ftxld pnca lar ..__ 0e¥9klperwartc
A. Nrf bond~? 0-ltlt 111.IOO,OGO (NMd on..,,.,.,
numblrl) "-' lllld lO Ill .... up or down Ill dlllllt or acid bond
COIi?
s. Confirm ..,aunt rl S abliglllol, (11p1n1 ar III be spent) cammilllld by IEF
forArdiledurlllld~wNc:llrwedllDbereimburlad•
Projed Colt. Doll the $19,500,000 (based on ll1inall ol lalll A&E by
both M-W and EEF at s1,2.e,557) IINd III be ICljUll9d up or dowl,.
C. Confirm ldull amount for Saundffl' (Q proft1; (II) gerMWal c:ondlllons . Ind
(Ii) 10ft COIII, Le. inlurance, taxw, '"'• etc. If lnl 11W1 12.5%,
$19,500 ,000 nNdl Ill Ill adjusted down .
Salied on $10,000,000 land price and $19,500.000 far U.... OeveloperWofk. Financial Plan
ii:
LANO OEVELOPMF.NT
Project Cost
Engtewood wortc done prior to tum-over by Master Developer
Englewood Contingency
Master Development Work-fixed lie
TOTAL COST
Source of Funds :
City :
Reme~,ation--Oeneral Fund advanced
Oemolition-EDA Grant
EEF-COP hJnds
M-W
Wal-Mart
Forest City
RTD-Original Contract
RT0-2nd Contract (Additional Pan<ing and Bridge)
TOT.AL SOURCES
Gap-0
$518,000
.l!l!l.!122
$13,681 ,500
236 ,500
$1 ,318 ,000
10,700,000
10,000 ,000
3,,400,000
2,300,000
2,700,000
..1.Q2M!l!l
$3:3 ,418 ,000
•• TOTAL PAGE ,818 u
INTERIM PERFORMANCE SCHEDULE • AS OF 4/20/CJ9
,
M-W/EEF v'
I. Leases
A. Cinema
Leuer of Intent ?Done M-W Approval of Regal Done (4/19) EEF 1st dnft lease [loss (4119)?) M-W Signedlwe S/31 M-W
Elevation (including Piazza Retail)
Submit SIS M-W
Approve S/18 EEF
B. Restaurant Pads (2) and Bally
1st draft lease 4/30 M-W
SigneJ leases 6/15 M-W
2. CClllltrucdoa ()peration Piao
Submit 5110 M-W Approve S/21 EEF
3. Pfflaits 111d Approvals
A. Garage and bridge
Demolition Permit
Submit S/21 M-W
Building pennit
Submit (DD) 4/30 M-W
Complete shop dwgs 6/J M-W
B. Site Work approvals(llre, public worts wilities, etc.)
Submit 4/26 M•W
II
4. ADARmew
Submi1 10 coasultanl 4/30 M-W
Submil report 10 Cily 6/1 M-W
s. Landscape
Finaliz.e Plan/Top soil require-
mentCblld&et) 5/12 M-W/EEF
fl
Reserve lrffS -rag 611 M-W/EEI' ,. Plaas 111d Specs/Scope
A. Design Drawings -Master Plan
Submi1 Done (4/15) M•W
Approve 4/30 EEF
B. Road and Intersection
Prelim . civil eng . dwgs Done (4/15) M•W
Approve 4/23 EEF
C. Scope --Master Development
Interim GMP (i!!-:hi..1ing competitive
bids by subs) 4/26 M-W
Final Adjustments
to scope 5112 M-WIEEF
Support Resolution 5111 Couocil
0 , CoDSlruction Drawings 613 M-W
• 2
E. Design Drawings -Civic Center Retail Building I I l tl
Elevation -Submit 6/15 M-W
7. Blue Top Survey 611 EEF
8. Deuaolitioa and Flll
Complete demo and fill 6/1 E.EF
Complete crusbio& and
pile for storage 6/21 i:EF
9. Floyd Avenue Vacation
1st Reading Done {4/12) Council
2nd Reading 4/19 Council
10. Subdlvtsioll .Plal
Complete survey 4113 E.EF • Preliminary Plat • P & Z 5/4 EEF
Final Plat -P & Z 5118 cEF
1st Reading 611 Council
2nd Reading 6/14 Council
11. COOT -Access
Submit 4/30 EEF
Approve 5/14 COOT
12. RTD
1st Draft ? RTD
1st Reading 5/17 Council
2nd Reading 611 Counc il
Assign obligation to M-W 611 M-W/EEF
Order Material ,· . .d Deposit 6/3 M-W/
EEF to provide funds for deposit
•
3
~PII IS '99 19t':l7
13. SianarePlan
Submit to City S,i M-W P&:?: Meeting 6m. EEf 1st Reading 716 COW1ci1 2nd Re.adin, 7119 COllllCil
14. En"'"-ieatlol Due~ li /14 M-W
15. CoutyTaxAaaor
Identify tax parcels and
confirm exe111p1 parcels 711 .EEF
16. Fiuaelat.Plan
Approve soft COSIS to date
as project expense Dooc (4/19) M-WIEEF
Interim schedule of values S/12 M-W/EEf
Fix Sc0pe and finalize 111y
adj•J$1r11e11t to Master Develop-
ment Fixed Price to M-W S/12 M-W/EEF
Final GMP and final Schedule
of Values 6/14 M,,V
17. Complece Updated Marketiag Package
ProJec 1 model, renderings , etc .
(for ICSC) 5/21 M-W
18. Lepl Docummts
A. Master Develor,menr Agreemeni
Isl draft Done (4/16) r. ....... ~· Finalize 5/12 M-W/EEF • Council Support Resolution 5117
Council
4
B. Lar.d Lease A{;.-etmeDI
ht draft Oooe (4/20)
Finalize 5/12
Council Suppc,rt Resolution 5117
C. Ground L:-.ue
D. CAM
E. ECR
ISi draft Done (4/19)
Flllllize 5112
Council Suppon Resolution 5/17
1st draft Dooe
Finalize all~ slares 5/15
Fillalize agreement 6/30
!St dral't
Finalize
4/30
6/30
EEF
EEF
M-W/EEF
C<:wieil
EEF
M-W/EEF
Council
EEF
EEP/M-W /
\~1al-Mart/Fomt City
EEF
EPJ'/M-W/
Wal-Mart/Fottst City
** TOTAL PAGE .0e1 **
•
COUNCIL COMMUNICATION
Date Agenda Item Subject
Support of First Amendment to
April 19, 1999 11 C Ii Pre-Development Agreement
with Miller Weingarten
Initiated By
Englewood Environmental Foundation
I Staff Source
Bob Slm~s:in, Board Director
l Englewood Environmental Foundation
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
On August 10, 1998 City Council adopted Resolution No. 90 , Series of 1998 supporting the Master
Plan proposed by the Englewood Environmental Foundation and Miller Weingarten for the Cinderella
City site .
On November 10, 1998 City Council adopted Resolution No. 100, Series of 1998 supporting the Master
Development Agreem.:,nt proposed by the Englewood Envi ronmental Foundation and MIiier
Weingarten for the red:welopment of the Cinderella City site .
RECOMMENDED ACTION
Staff recommends that Council adopt a reso!utior, supporting the First Arr,endment to Pre-Dev~lopment
Agreement between the Englewood Environmental Foundation (EEF) and Miller Weingarten.
BACKGROUND, ANALYSIS, AND AL".fERNATIVES IDENTIFIED
l;ince August 1998 the Foundation has been working with Millar Weingarten to finalize all remaining
._qie. l~ase and development issues for the CityCenter project. With the recent Council support for the
sale of land to Wal □Mart and approval of the Miller Weingarten agreement, the Foundation Is ready to
conclude the development agreeme~.t with Miller Weingarten . With Council's support, the Foundation
will proceed to complete the fir.al development agreement with MIiier Weingarten .
FINANCIAL IMPACT
There is no direct cost associated with this Resolution of Support. The proposed Resol.l t,on will
demonstrate support for the EEF and Miller Weingarten leading to the final development agreement.
LIST OF ATTACHMENTS
Proposed Resolution