HomeMy WebLinkAbout1999 Resolution No. 083RESOI .UTION NO .~
SERIES OF 1999
A RESOLUTION SUPPORTING THE "MASTER DEVELOPMENT AGREEMENT'"
BETWEEN MILLER WEINGARTEN REALTY, LLC ., AND THE ENGLEWOOD
ENVIRONMENTAL FOUNDATION.
WHEREAS, The Englewood Environmental Fowidatio11 wu formed to relieve tlv,
burdena which would othenriH be ueumed by the City r,( Englewood, Colorado, in
coanection widl the environmental remediation, land 1118 plannini and preparation for
••~•velopme1,t of the Cinderella City shopping center; and
WHEREAS, tha Englewood Environmental Fr,undation wu formed to pro\'ide support for
the redevelopment and enhancement of the Citl'a commercial environment and is a eeperate
and distinct corporation; and
WHEREAS, tha City Council of the City of Englewood, Colorado, aupported the Muter
Plan propoaed by the Englewood Environmental Foundation with the puaa1e of Reaolution
No . 90, Serie, 1998; and
WHEREAS, Enr!ewood City Council adopted Reaolution No . 100, Serie, of 1998,
1upportin1 the Development Agreement betw .. n Miller Weinprten Realty, LLC., ,.nd the
Englewood Environmental Foundation for the Cinderalla City Redevelopment:•.::,,
WHEREAS, the Englewood City Council adopted Reaclution No. 50, Series of 1999,
aupporting the "Fint Amendment to Pre•Development Agreement" betwten Miller
Weingarte• and the Englewood Environmental Foundation for the Cinderella City
Redevelopment; and
WHEREAS, the adoption of this propoeed reaclution supports the Muter Development
Agreement between Miller Weingarten Realty, LLC ., and the Englewood Environmental
Foundation;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD, COLORADO, THAT:
~-The City Council of the City of Englewood, Colorado, he reby eupporte the
"Master Development Agreement" between Miller Weinprten Realty, LLC ., and the
En~lewood Environmental Fo,mdation under the general terms and conditiona of the
Agraement a ttached hereto as "Exhibit A".
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Sldllm.J. Tbll ruolutian of IUppOl't ID no •11 •ai-or deleptN the Clt.y'a reculalor7
powen, dutiH and l'ffl)Olllil,illtiH with nopeet to 101W1J and pmmmlDtal i111111 .
ADOPTED AND APPROVED lhia 2nd day of AUilllt, 1999.
Gk~,aL Tbo;;;:;;;:;,i'Mayor
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... ;;:.iii.iiili •• Cit, Clerk
I, Loucriabia A. Ellil, City Clerk ~ City of Eqlewood, Co
above ia a tr.ie copy of Re10lution NoB Serie■ of 1999 .
MASl'ER DEVELC>PMENT AGREEV.iNT
Thia Master Dcvelopmall Ajreement ia made 11111 earered iDlo lbia 3rd day qf
August, 1999, by 1111111110111 the Eoglewood Enviroamemal FOUDdalion, Ioc., a Colorado
not-for-profit corporation ("EEF"), 11111 Miller Weinprten Realty, LLC. a Colorado
limittd liability company ("Master Diveloper").
In consideration of the mutual covenanu conlained herein and for other good 11111
valuable consideration,\ '!1e receipt and sufficiency of which are hereby acknowledged, !be
parties heteto kgrde as ~llows:
SECTION 1.-Qellpitjom
The following terms shall have !be meanings set forth in this Section I. Cenai!).
other tenns are also defined in the body of this Agreement:
1' 1 "Agreement To Lease and Develop Retail Property" means that certain
Agreement between EEF 11111 the Master Developer which the parties intend to enter into,
and which will provide for £EF to deliver the Ground Lease and for the Master Developer
to develop the Retail Property for retail and entertainment use .
1.2 "Construction Fund Account" means the account described in Section 6.1.
1.3 "Construction Contract" means the contract between the Master Developer
and the General Contractor as provided in Section 4.1 .
1.4 "Event of Default" shall have the meaning set forth in Section 7.
1.5 "Excusable Delay" means delay due to causes beyond the control of the
party required to complete the applicable performance and without iu fault or negligence,
including, without limitation, acts of God, acts of the public enemy, acts of the federal,
state or local government, acu of the other party. acts of third parties (including the effect
of any petitions for initiative and referendum). acts or orders of courts, fires, tloods,
epidemics, c .:irantine restrictions, strikes, freight embargoes, and unusually severe
weather or delays of subcontractors or marerialmen due to such causes. 1n no event shall a
delay by the City of Englewood. Colorado, be deemed an excusable delay as applied to the
performance by EEF.
1.6 "Forest City" means FC Englewood Associates, Inc ., an Ohio corporation.
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1. 7 "Gene:'81 Conuitions" means lbe Genml Conditions anaclttd 10 formllla a part
of the CoD'it,uction Contract, as t'Urtber described in 1he Ciuara!lteed Maximum Price.
1.8 "General Contractor" means Saunders Construction Company.
1.9 "Ground Lease" means lhat certain ground lease between EEF and Huter
Developer entered into pursuant to the Agreement to Lease and Develop Retail Pro.~.
leasing a portion of the Property to Master Developer fl'.-an initial term of one year and,
after satisfaction of certain performance critena and contingencies, for an additional term
of seventy-four years .
1.1 O "Guaranteed Maximum Price• shall mean the maximum price of
construction guaranteed to the Master Developer by the General Contractor as described in
Section 4.1.
I. 11 "Guarantor" means Weingarten Realty Investors, a Texas real estate
investment trust.
1.12 "lmprovtments" means all buildings or other structures which are included
in the Plans and Specifications .
1.13 "Land Payments" means the net proceeds received by EEF from the sale of a
portion of the Property to Wal-Man and to Forest City , and the net proceeds received by
EEF from the Master Developer fo, the advance rental payments under the Grounl Lease.
1.14 "Master Development Fixed Price" means the sum to be paid to the Master
Developer for performance of its obligations under this Agreement as set forth in Section
3.2.
1.15 "Master Site Plan" means the site plan which has been approwd by City
Council, a copy of whi.:h is attached hereto as f3hil!i1.ll. together with any amendments
thereto hereafter approved by City Council.
1.16 "Plans and Specificat.Jns" means the plans and specifications described in
Section 3.1, together with all ~~ditions, changes and other amendments thereto which are
approved by EEF i.n accordance with this Agrc,ement.
1.17 "Project Architect" means David Owen Tryba Arch itects .
1.18 "Project Engineer" means Manin & Manin .
1.19 "Property" meam the real property ~ in~ aaacl Id hf--•
which includes the parcels to be around leased to Muter Developer, the parldJt J UW 11111
other Common Areas, and the parcels to be sold ro Wal-Mart and Forest City. J
1.20 "RTD" means the Regional Transportation District. j J
1.21 "RTD Improvements" means the improvements which the Cir,· ,! requiml to
construct Wider the terms of the RTD Incer-govel'11111C'.mal Agreement.
1.22 "RTD Intcr-governmenral Agreement' means the Intcr-govertu' lelllll
Agreement between the Regional Transponalion Disrrict and the City, appro, ~•'!'the
City Council on January 6, 1997, as amended by Amendment dattd , 1999,
a copy of which. is attached hereto as ~------
i,7,:; "Schedule of Perfonnance • means the Sc hedul e of Perfonnanr e aaached
hereroas~.
1.24 "Schedule of Values" means the Schedule of Values as provided in•Seclion
3.4.
1.25 "Site Delivery Plan" means the drawing described in Section 5.2 and
attached hereto as ~-
1.26 "Tille Company" means Chicago Tille Insurance Company .
1.27 "Trustee" means the trustee for the COP Bonds .
1.28 "Wal-Mart" means Wal-Mart Real Estate B1 •1iness Trust , a Dell ,ware Business
Trust.
1.29 "Wal-Mart Work" means the work to be done by the Master D :veloper
under this Agreement and as more fully set forth under the Development Agr,,,ement
between Wal-Mart and the Master Developer relating ,ll the site 10 be develoi: ed by Wal-
Mart .
1.30 "Work" means all of the on -s ite work and off-site work inc;1ded in the Plan1
and Specifications .
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SECTION 2.-~
2.1 The Property is located within the boundaries of the City of Englewood,
Colorado (the "City") and was formerly a regiooal sh0pping center site mown as
"Cinderella City .• The Property is bounded by Hampden Avenue, Sanra Fe Drive, Elati
Sttect and Floyd A venue . The Property consists of approximately 45 acres daipted on
~ as Parcel 1, together with a leasehold interest in approximately an additional 5
acres to the northwest of the 45 acre site and <!esignated oo ~ as Parcel 2 . EEF
currently holds record title to the 45-acre parcel and the City has a sublease of the 5-acre
site .
2. 2 EEF has determined that it is in the best interests of lhe City to cause the
Property to be redeveloped so as to enhance the aesthetic, civic and economic
characteristics cf the City and co increase the $ales tax revenur tt tJ1e City .
2.3 RTD is deve)oping an extension of its light rail system along what is referred
to as the "Southwest Corridor," which extensio~ .. ,eludes a rail line along Santa Fe Drive
adjacent · to the west boundary of the Property a,1d a station 10 be lc,cated adjacent to the
Property at approximately Hampden Avenue and Santa Fe Drive . The City and RTO have
entered into the RTD Imer-governmental Agreement which requires the City to complete
and make available for use by the RTD certain improvements included in the Plans and
Specifications according to the schedule of date~ set f!'rth in the RTD Intergovernmental
Agreement.
2.4 EEF has entered into an Agreement with Wal-Mart 10 sell Wal-Mart a
portton of rhe Property to be developed by Wal-Mart for its store. The Agreeme,;t
requires EEF to con1plete the Wal-Mart Work to enable Wal-Mart to proceed witl1 the
development of its property .
2.5 The City Council , on December 15 . 1997, expressed its desire that the
· Pro9erty be redeveloped as a Transit Oriented Development ("TOD") to be integrated with
the RTD station next to the Property . On November 23, 1998, the City Council approved
a P. U.D. for the Property which provides for th e develop::ient of the Property as a TOD.
2.6 The Master Deve loper has agreed to redevelop the Property by performing
the Work necessary to implement the Master Site Plan and, as the retail developer, by
developing the Retail Property as a retail and entertainment complex as more fully
provided in the Agreement to Lease and Develop Real Property .
• SECTION 3.-Scope; Price
3.1 Scope of Work . Master Developer shall contract for and oversee the
construction of all Work, on site and off site, necessary to complete the Muter Site Plan as
shown on the design drawings attached hereto as Emilllc . .f, and the specifications aaacbcd
hereto as Exllil2i1Ji. Prior to the date hereof, Ma.ner Developer bas fumiahed EEF ivilh
construction drawings, which drawings have been .• !)roved by EEF and initialed by EEF
and the Master Developer. Upon such app1oval, Master Developer and EEF shall initial
the construction drawings which shall be attached hereto as E3llil!lLH and shall further
def me the scope of the Work to be performed by Master Developer. Master Developer
shall require that all Work performed by any contract, or subcontractor, or material
supplied by any supplier, shall conform to the scope as set forth in Emjbjis F to H. and in
the case of a conflict between the design drawings and the construction drawings, the
constrw;tion drawings shall control.
3.2 Fjxed Price. From the funds as described in Section 6.1, EEF shall pay or
cause to be paid to the Master Developer the sum of $19,500,000 as the Master
Development Fixed Price for all Work required by the Plans and Specifk.ations. The
Master Development Fixed Price shall be adjustet.! for changes in the Scope of Work only
as provided in Sections 3.3 and 4.3.
3.3 Changes jn Ma>ter Sjce PJan. The parties acknowledge that changes may be
required to the Master Site Plan, subject to approval of the City Council, in part to
accommodate changes which may be desired in the development of the Retail Property or
the property to be sold to Forest City . The parties further acknowledge that under the
terms of agreements which have been executed or which EEF may hereafter execute with
Wal-Mart and Forest City, such changes may als :1 require approval by Wal-Mart or Forest
City, o~ both. In the event the Master Site Plan b amenc!:d, the Master Developer shall
revise the Plans and Specifications, which revision:. shall be subject to approval of EEF in
its sole discretion. Upon approval of the revisions 10 the Plan; and Specifications, the
Master Developer shall process a Change Order under the Construuion Contract, which
Change Order, including any adjustment in the construction cost . Guaranteed Maximum
Price and the construction schedule, all of which shall be subject to approval of EEF, in its
sole discretion . Upon approval of the Change Order, the Master Development Fixed Price
shall be adjusted by an amou nt equal to the change in the Guaranteed Maximum Price, and
the Schedule of Values shall be revised to reflect tlie adjusted Guaranteed Maximum Price,
the General Contractor shall obtain competitive bids for my part -:,r all of the work result-
ing from the change in the Master Site Pim, which competitiv~ bids shall be obtained in
the same manner as provided in Section 4.1.
3.4 Schedule of VaJues . Attached hereto as fllb.ibit..l is a Schedule designated as
an "Interim Schedule of Values," which is based upon the preliminary Guaranteed
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Maximum Pri~e as provided by the ae.::ai Contraaor under die CO'JSttUCtion Coqlract.
The Interim Schedule of Values includes, and such ilma :ire designated on the scbedule u,
Master Developer soft costs received prior 10 April 21, 1999, the costs of Ille Work for die
RTD improvements, and the Wai-Man Wort. Upon the General Contractor agreeiq 10 a
final Guaranteed Maximum Price, the Schedule of Values shall be reviled iO reflect the
final Guaranteed Maximum Price, including !hi: separate costs relating 10 the RTD
Improvements and the Wal-Mart Wort, but in no event shall the aggregate amount of the
final schedule of values exceed the aggregate amoum reflected in the lnie,im Schedule of
Values . The revised schedule shall be initialed by EEF and the Master Developer and
shall be deemed substituted herein as gbi)2iij and shall be designated the "Final Schedule
of Value.~•
3.5 Fajlure of Wal-Mart or Forest Cjty JO Close. In the event (a) Wai-Mart fails
to close for any ~ason the purchase of the portions of the Property 10 be acquired by it, 'It
(b) Forest City fails to enter into an Agreement with EEF to purchase the residential
portion of the Property or fails thereafter to close under such agreement, EEF shall have
the option, in its sole discretion, U(JOn ten (10) days prior r.otice to Master Developer, to
(a) tenninate this Agreem~nt. or (b) to amend this Agreement by adjusting the Scope of
Work, prov'ded EEF and the Master Developer reach mutual agreement to an adjustment
to the Master Development Final Pric~ and the Schedule of Performance . In the ever.t
EEF elects to ,:rminate this Agreement, the Master Developer shall be reimbursed as
provided in Section 3. 7.
3.5 Failure of Master Developer 10 Consummate Agreement co Lea!'c .Jru!
Develop Rmil Properry .
3.6.1 In the event the Master Developer fails for any r:ason to enter into the
Agreem~nt to Lease and Develop Retail Property oc or before August 31, 1999 , this
Agreeme:!! iliall terminate. which termination shall be effective ten (10) days following
written notice from EEF .
3.6.2 In the event the Master Developer enters into the Agreemem to Lease
and Develop Retail Property . and thereafter fails 10 close the acquisition of the Retail
Property . this Agreement shall terminate. which termination shall be effective three (3)
days follow;ng written notic1: from EEF.
3. 7 Early Tennjnation. In the event this Agreement is tenninated pursuant to
Section 3.5, the Master Developer shall be reimbursed for the amounts sper,t by the Master
Developer prior 10 the date of termination, provided such amounts are included on the
Schedule of Values relating to the RTD improvements , the Wal-Mart Work and any other
• portion of the Work authorized by EEF to be done during such period . In the event this
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Agreement is terminated under Section 3.6 (if in die case of 3.6.2 only if MIiier Devel-
oper's failure to close constirutes a default by Master Developer under the Apment to
lease and develop Re!ail Property) Master Developer shall be reimbursed only for IIIIOUIIIS
spent subsequent to Apr'J 21, 1999. which are included on the Schedule of 'i alues relating
to the RTD Improvements and Wal-Man Work and any other portiow. of the Work
authorized in writing by EEF to be done during such period, and lilere shall be no
reimbursement for the amounts designated on the Schedule of Values for costs prior to
April 21, 1999 . As a condition for any reimbursement to Master Developer under the
terms of this Section 3. 7, the Master Developer shall deliver to EEF all materials relating
to the Redevelopment Project (including out not limitt:d 10 drawings, plans, specjficatio11,1,
reports, estimates, bids, and schedules) in the Master Developer's possession or under its
control, and the Master Developer shall d~liver to EEF, in addition to the assignments
referred to in Section 3.8, assignments of its rights unde( its contract with any other pany
relating to the Redevelopment Project as EEF may reasonably request, together with such
consents as arc necessary in connection with the assignments or 10 permit EEF to use the
materials it receives from the Master Developer.
3.8 Conditional Assjgnmenrs . Simultaneously with the execution of this Agree-
ment, Master Developer shall execute and deliver ro EEF Assignment of Architect's
Contract and Plans, Assignment of Contractor's Contract and Assignment of Engineers
Contact in the forms attached hereto as Exhjbjrs J Kand L (the "Assignments"). Master
Developer acknowledges and agrees that rhe Assignments shall be effective upon EEF
giving notice t,:, Master Developer, David Owen Tryba Architects , Saunders Construction
Company or such other pany whose contract has been assigned, as the case may be, that
EEF has elected to terminate this Master Development Agreement, and no further action or
consent by Master Developer shall be required .
SECTION 4.-Construction
4.1 Construc :jon Contract.· Master Developer has selected , and shall enter into a
contract with, Saunders Construc tion ("Construction Contract") to act as the General
Contractor . The Construction Contract shall provide for a Guaranteed Maximum Price of
not more than $16 .000 .000. EEF shall have the right to review and approve the form of
the construction Contract prior to signature by the General Contractor . 1be Construction
Contract shall provide for the retention of (i) ten percent (10%) of the cost of the Work
until such time as construction of fifry percent (50 % ) of the improvements bas been
completed and the Project Architect certifies the required p,-rcentage of completion bas
occurred and that such work has been com pl eted substantially in accordance with the Plans
and Specifications . and thereafter (ii) five percent (5%) of the cost of the Work. The
Master Developer shall require the General Contractor, and the Construction Contract shall
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also so provide, that prior 10 the General ContraclOr commencing any work or fumwting
any materials under the Coostr11ction Contract, the CJeneraJ Contractor shall obtain compe-
titive bids tor .ill such work and materials; provided, however, with prior written approval
of EEF, the General Contractor shall be llllhorized 10 proceed with portions of the Work
on a negotiated basis with subcontractors whose work is to be done on a design/build basis .
All bids shall be oblllined from subconttactors and material SJ1Ppliers who have been
included on a bid list approved by EEF. EEF shall have the right 10 waive the requirement
for such competitive bids, provided such waiver is in writing. Copies of all such bids shall
be submitted to EEF. In the event the aggregate amounts of the bids exceed the aggrepte
amount reflected on the Schedule of Values for such work, if the bid selected by General
Contractor is either (a) not the lowest bid, or (b) is higher than the sum shown for such
work or materials on the Interim Schedule of Values, and there is also a bid for a sum
equal 10 or less than the sum shown on the Schedule of Values, General Contractor sl!all
have the option 10 select the higher bid only with the approval of EEF . In the event the
aggregate amount of the bids which have been selected is for an amount less than the sum
shown for such work or materials on the Interim Schedule of Values. the Master Devt:loper
Fixed l 'rice shall be reduced by 211 equal amount. In no event shall the Master Developer
Fixed Price be increased as a result of any bid selected in accordance with this paragraph .
In the event the General Contractor desires 10 proc-.ed with the work covered !>y a bill
which has been selected (or such bid requirements has been waived by EEF;. ;:lid with,,ut
first obraining bids for any other work or materials . Gene,-al Contractor shall request sw:h
permission from EEF. and EEF shall authorize in writing s,1eh Work. in EEF's sole
discretion. In the event the Assignment of the Construction CoP~•ct 10 EEF becomes
effective as described in Section 3.8. the Construction Contract shall require the G~neral
Contractor, at EEF's cost and expense, to provide a payment and performance bond in the
amount of the guaranteed ma.~i.'"llum price for the benefit of EEF.
4.2 Constructjon Oocumenis. Master Developer shall provide EEF with a copy
of the signed Construction Com:ract, a copy of any contract executed by Master Developer
and any architect. engineer or other consultam , and executed copies of any other contracts
betv. een Master Developer and any other contractor or supplier. Master Developer shall
also furnish to EEF a complete list of all persons . firms or entities which the General
Contractor has engaged as a subcontractor or supplier 10 furnish labor and /or materials in
performing any portion of the Work . together with copi-.s of all written agreements
(including contracts , subcontracts and purchase orders) therefor . and the terms of all verbal
agreements therefor. All such co111racts shall be in form :mri content satisfactory to EEF.
All Work shall be performed in a good and workmanlil'.e manner, and all materials shall be
of first class quality . and such Work and materials shall <.:onform in all respects to the
Plans and Specifications.
4.3 Change Onlea. The Plans 111d Specificatioll!I shall be modified only by
written change orders. All challse orders n:quested by EEF shall be submiued to die
Master Developer, and within ten (10) days after it ia received, the Master Developer sball
provide EEF with the cost of such cbanfu Oilier. and EEF sbalJ approve the COit or
withdraw the change order within three ( · 1 days following receipt of such coat. No change
order shall be effective until it is approvea in writing by EEF, including approval of the
cost. The Master Developer shall not commence any work required under a chanlt order
until it has been approved in writing by EEF. EEF shall only be liable for COIII of chauge
orders requested by EEF and which changes the Scope of the Work, and such increase
shall be paid by EEF and the Fixed Price shall be increased by the amount of the change
order. Any other change orders resulting in an increase in cost shall be the sole respon-
sibility of the Master Developer . The Master Developer sh.'111 make changes IO the Plans
and Specifications only after a change order has been submitted 10 and approved by EEF,
which approval shall be at EEF's sole discrerion.
4.4 Construction Management Sequence and CompJetjon. Master Developer
shall J,e solely responsible for managing the Work . EEF, its agents and designees may
tr...ice periodic inspections of the Work. so long as such inspections do not unreasonably
interfere wirh the progress of the Work. Master Developer shall commence construction
of the Work and diligently pursue the same to completion in accordance with the Perfor-
mance Schedule. In the event of the occurrence of Excusable Delay. the Master Developer,
as the party cl,,iming such delay. shall comply with the requirements as set forth in Section
8.4, and thereafter the rime for performance of such matters which were the subject of the
Excusable Delay shall be delayed as provided in Section 8.4 . Master Leveloper shall pro-
vide EEF with the written certification of the Project Architect and /or Project Engineer
when the Work, or any portion separately ider.,ined on the Performance Schedule is
co mpleted . Within thirty (30) days following such certification, the Master Developer
shall transfer to EEF, to the extent transferrable , any warran1irs relating to the Work made
by the General Contract0r or any subcontractor, supplier or manufacturer.
4.5 RTD Improvements. Simultaneously with the Closing under the Agi'eement
to Lease and Develop Retail Property. the Master Developer shall execute an Assumption
Agreement in the form attached hereto as fmil2itM, assuming the obligations of th1! City
to construct and complete the RTD Improvements as required under the RTD Agr~i.,ent.
The Master Developer shall provide EEF with a separate conslrllction budget ("RTD
Budget"), reflecting a separate Schedule of Values for the cost of the Work relating to the
RTD Improvements. Master Developer acknowledges that RTD has agreed to provide
funds to apply to the cost of the RTD Improvements , and Master Developer agrees to keep
such separate set of books and records as may be necessary for EEF or the City to submit
to RTD requests for payments for the cost of the Work which relates to the RTD
Improvements.
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4.6 Utjljry Service; Street Consttuctjon . The Master Developer is fully
responsible, at its cost, for providing all facilities necessary to provide water, sanitary
sewer , stonn sewer, narural gas, eleclrioii:y, telephone services and Olher utilities required
under th,, Plr.ns and Specifications , The Master Developer is also solely respo111ible for
the relocation of any existing utilii:y facilities and the comttuction of any private or public
streets ..ii ways requi=I by the Plans and Specifications and wtich is included In the Scope
of Work. The parties acknowledge that there currently are water and sewer tapa c-~
Taps"), fully paid, which were used in connection with the prior use of the Property as the
Cinderella Cii:y Shopping Center. The parties acknowledge that the Existing Taps will be
first allocated to EEF for redevelopment of the existing building, fonnerly known as the
Foley's Building, and which will be redeveloped at the Civic Center ; the Existing Taps
will be all0< ated next to use for the common areas of the Property to be maintailled under
the terms of a Common Area Maintenance Agreement. In the event there are not sufficient
Existing Taps to meet the requirements for the common areas, EEF shall bt responsible for
the purchase and payment of any additional water or sewer taps required for the common
areas included in the Property . In no event shall EEF be responsible for any tap fees
required for utilities to service improvements to be constructed by Wal-Mart or Forest Cii:y
or improvements to be constructed by Master Developer on Retail Property .
• 4.7 ~-Master Developer shall purchase and maintain. or cause the
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General Contractor to purchase and maintain, such insurance to protect Master Developer
and EEF fro'." c·aims set fort!: below, which arise out of or result from Master
Developer's operations under and performance of this Agreement, or from the Work to be
performed by the General Contractor under the Construction Contract. whether such
oper.it a>i.; or perfonr mce are by Master Developer, General Contractor or any
subcomractor 01 by anyone directly or indirectly employed by the Master Developer or
the General Contractor, or by anyone for whose acts or omissions Master Developer or the
General Contractor may be liable:
4 .7.1 Claims under worker's or workman's compensation, disabilii:y
benefits or other similar employee benefits acts;
4.7.2 Claims for damages because of bodily injury, occupational sickness,
disease or death of its employees;
4. 7.3 Claims for damages because of bodily injury, sickness, disease or
death of any person other than employees;
4. 7.4 Claims for damages insured by usual personal liability coverage which
are sustained (a) by any person or as a result of any offense directly or indirectly related to
employment of such person by Master Developer or General Contractor, or (b) by any
other person; ·
4.7.5 Claims for damages becauae of injury or destruction of tangible
property, including loss of use resulting therefrom: and
4.7 .6 Claims for damages because of bodily injury or dcalh, or any penon
or personal propeny damage arising out of the ownership , maintenance or use of any
motor vehicle.
Insurance required hr reby shall be written by companies licensed in the State
of Colorado which are reasonably acceptable to EEF and in amounts reasonably acceptable
to EEF. Certificates of insurance acceptable to EEF shall be filed with EEF prior to
commencement of the Work . Certificates shall ~ontain a r,n,;·ision that coverage under the
policies will not be canceled without at least thirty (30) duys pric•r written notice being
given to EEF . EEF shall be named as an additional insured under all such policies.
Master Developer shall purchase and maintain propeny insurance against the
perils of fire and extended coverage, and shall include "all risk" insurance, physical loss or
damage included. without duplication of coverage, theft and malicious mischief coverage
on all materials stored on site, or in transit, which are 10 be incorporated in the Work at
such time as those items are included in an application for payment described herein.
4.8 ~-The General Conditions shall include a requirement that the
General Contractor furnish surveys from time to time as portions of the Work proceed or
are completed . The cost of such surveys are included in the Master Development Fixed
Price. Master Developer shall furnish copies of all such surveys to EEF promptly
following receipt by the Master Developer. Master Developer shall also furnish to EEF a
final survey of the Propeny at such time as the Work is completed. Such final survey shall
be in form and conten, reasonably acceptable to EEF , and the Master Of!veloper shall
consult w\th EEF concerning its proposed requirements prior to the commencement of such
survey . The cost of such final survey is also included in the Master Develcpment Fixed
Price.
4.9 Pennjts and ApprovaJs. Master Developer will be solely responsible for
obtaining all permits and other governmental approvals necessary for construction of the
Improvements or any other portion of the Work , including but not limited to , building
permits . Master Developer, on or before the time pwvided in the Schedule of Perfor-
mance, shall submit an application for building permits co the City, pay all required fees
for such application and diligently pursue approval of such application. In no event shall
the plarts and specifications submitted for issuance of the building permit conLlin any
H:U>OCS\CUIHN E\EHCLfW~.'11'\MASTOEVIOr,_., •l!.wpl
'""""" 11
t)
material deviations from the Approved Design Drawings . Upon r.ompletion of the
cons1r11ction drawings I .faster Developer shall update its application for a buildillg permit
by S11bmitting such drawings.
4.10 Impectiop and Repons . During the course of the Work, Master Developer
shall carry or. regular inspections of the Work. Master Developer shall furniah IO EEF on
a timely basis copies of all reports it prepares or receives regarding inspections of the
Work, including reports prepared by its employees and agents, and any reports from the
Project Architect or Project Engineer . The Master Developer shall have no liability with
regard to the accuracy of the reports prepared by the Project Architect or the Project
Engineer and m2ices no warran:y or representation with regard to such reports . EEF,
together with its agents, consultants and designees, shall also have lhe right to impect the
Work from time to time, in its discretion, provided such inspections do not unreasonably
interfere with the Work . Masle-r...Ileveloper shall promptly cause to be correcred any
ponions of the Work are not in accordance with the Plans and Specifications .
4.11 As-Built Drawjpgs · after completion of the Work. Master Developer shall
prepare and forward to EEF two full sets of as-built drawings of all of lhe Work . One set
of the as-built drawings shall be in a format which will allow EEF to reproduce addtional
copies .
4.12 Mechanjc's L~ -Master Developer will cause any mechanic's lien or
similar document filed against !he Pro perty as a result of materials or labor piOvided for or
at the request of !he General Contractor or !he Master Developer, its agents or contractors,
10 be removed of record within lhiny (30) days following !he date of filing . The Master
Developer may contest any such lien provided it posts with EEF, or deliver to EEF
evidence that there is posted wilh olhers, adequate security approved by EEF for the
payment of any such mechanic's liens or similar lien or claim .
4 .13 Guaranty of Completion • Mas ter Developer shall provide EEF with a
guaranty of completion executed by Weingarte n in !he form anached hereco as~-
4 .14 Indemnjfication -Mast r De ve1 ..::.1er hereby indemnifies and agrees to hold
EEF and the City. its employe es, officers , direc,ors, representati ves , ager,ts , successors
and assigns, harmless fron . and against all claims asserted against any of them by any
person or entity arising out of or in conncui rm with !he Vierk to be performed by the
Master Developer under the terms of !his Agreement. EEF shall have the right to appear
in any action or proceeding to defend itself ag~inst any such claims . All costs incurred by
EEF in connection with any si. :h acti on or prr,ceeding , includ ing attorney fees. shall be
paid or reimbursed by the Master Developer to EEF .
:~~EHCl.!WLI\M•W\MAffl>~11J.•IZ.... 12
SECTION 5.-Covenants by EEF
S.I EEF Responsjll~. EEF shall perform, by the dates specu ;eu. the
following duties and development activities:
5. I . I EEF shall submit to the Director of Neighborho,.,J Pnd Business
Development a preliminary subdivision plat of the Redevelopment P!Oj•~~i ~n :ir before ten
(10) days following its receipt from the Developer of the survey and pr~ll',•iauy
subdivision plat. EEF shall obtain approval of the Planning Coou:tlssion and the City
Council to a final subdivision plat a final approval by the Planning Commission by the
dates designated on the Performance Schedule.
5.1.2 Prior the mutual execution of this Agreement, EEF shall have
completed its current demolition and fill activity at the Property.
5.2 De!jvery of Property . !he parties acknowledge and agree that the drawing
(".C.ite Delivery Plan"), which has b~t n initialed by both parties and is attached hereto as
~. reflects the requirements of the Master Developer for the condition of the
Property at the time it is delivered by EEF tc the Master Developer, including grade
elevations of the Property, as well as final grading of roads and intersections . EEF agre,;s
to deliver the Property to the Master Developer in the condition set forth in the Site
Delivery Plan.
SECTION 6.-l>isbursements
6.1 Constr<1ction Fund Account. The parties acmnwledge that the Master
Development Fixed Price shall be paid in part by RTD in a,~ord•rce with the terms of the
RTD lnt-!rgovernmenlal Agreement as described in Section 6.3, in part by the proceeds of
the COP as described in ~.ection 6.4, and in pan fwm the Land Payment as provided in
this ·paragraph . EEF agrees to deposit the Llmd Payments in a separate account ("Con-
.truction Fund Account"). Upon the Closing under the Agreement to Lease and Develop
Retail Property , in the event the total of (a) anticipated land payments. (b) .1mounts payable
by RTD under the RTD Intergovernmental Agreemeo!, and (c) COP proceeds is less than
the unpaid balance of the Master Development i-ixea Price, EEF shall a:so deposit the
amount of mcl: difference in the Construction Fund Account . The Construction Fund
Account shall be disbursed by EEF only to pay toward costs of the Work, including the
Master Development :'ixed Price. Upon the payment in full of the Master Development
Fixed Price and any other obligations of EEF under this Agreement, any funds remaining
in the Construction Fund Account shall be retained by EEF as its funds, free of any claim
by Master Developer or any other parry .
H:IDOCS\CULVT\RE\fHOLEWDIM•W\MAS'Tt)EV\Orf•llf,•11.-,.1
.w:,,11199 13
6.2 DisbuQemeot ProcedW;. EEP shall make disbursements to Ma,,.-,~
Developer from the Comtt11ction FUDd Account to be applied u payment on t'.:, Master
Dev-=lopment Fixed Fee in accordance with the following procedure:
6.2 .1 c;enjficate for Payment. At st!ch time as Master Develorer shall
desire 10 obtain, subject to the requirements contained herein, a disbunemen; ,, ? wiy
portion of the Master Developn:ent Fixed Fee, Master Developer shall complete, c-trcme
and deliver to EEF a request for an i,,l•,ance in the form of the Certificate for !>ayinent
approved by the EEF .
6.2.2 Evidence of Progress oi Construction. Each Certificate for Paym, :nt
shall, upon the request of EEF, be accompanied by evidence in form and content
satisfactory to EEF, including but no1 limi!ed to certificates and affidavits of Master
Developer, the Project Architect and/or General Coottactor or sur.h other person as EEF
may require, show in g:
(a) The value of that portion of lite Improvements completed at that
time;
(b) That all outstanding claims for labor . materials and fixtures have
been pald or will be paid from thf proceeds of such disbursement;
(c) That there are no mechanics' lien~ outstanding against the Property;
(d) That Master Developer has complied with all material obligations
required under this Agreement 10 be perfor:ned by !ht Master Developer as of the date
thereof;
(e) That all Work prior to the date of th: request for an advance has
been performed and compl~ted in accordance with the Plans and Specifications;
(f) That all funds previously disbursed by EEF have been applied
directly to the payment of cost of the Work, as set forth in the Project Budget or otherwise
as EEF shall have approved in writing ;
(g) That all change orders in any amo 11 whatsoever shall have been
approved in writing by EEF, and, if required by EEF, by any surety and any Guarantor;
(h) That the Wldisbursed portion of the Master Development Fixed Fee
ii sufficient to pay the cost of completing the Work in accordance with the Plam and
Specifications;
(i) That the location of the lmprovem~~,cs wilt not encroach upon any
adjoining properties or interfere .,ith any easement;
(j) That, :; payments 2.re to be made on account of materials or
equipment 001 incorporated in the worlr. but delivered and suitably stored on the Property.
or at some other location :-51 ~ed :.pon by EEF in writing . such payments shall be
condiricn"'-' upon su~&111ssion to EEF by Master Developer of bills of sale or such other
procedures satisfactory to EEF to establish F-EF's title :o such materials or equipment or to
otherwise protect EEF's interest.
6.2.3 ~\ni.ficate of Inspe:rjng Archjtect . Each Certificate for Payment shall
be accompanied r v written certification from the Project Architect or Project Engineer
indicating the status of construction, cc,mpliance with the Plans anJ Specifications . and
approval of ch ·.: disbursement request. Master Developer shall pay all fees and expenses of
such architect or engineer for all required inspections .
6.2.4 lnY~. Each Ce rt ificate of t'ayment shall also be accompanied by
copies of all bills or statements for expenses for which the advance is requested.
6.2.5 Con1jnuatjon of Title Report . Each Cer .ficate for Payment shall, at the
request of EEF, be accompanied r y a satisfactory title report showing thar no mechanics'
lien statements or statements C'f intent to file a mechanic' lien have been recorded .
6.2 .6 Interim Lien Wajvers . Prior to each draw , Master Developer shall
deliver to EEF lien waivers and rdeases of liens (if necessary) for work performed or
m3terials sup plied . exc ept with respec t (O amounts included in the currer.t month 's draw.
6.3 RTD 'mprovements. The parties acknowledge that the cost of th~ RTD
Improvements will be made in part from payment from the Cons truction Fund Account and
in part from direct payments made cy RTD pursuant to the RTD Inter-governmental
Agreement . The parties also acknowledge that with respect to direct payments by RTD ,
the request for such payments must be made by EEF . Master Developer sh.ill submit to
EEF a separate Certificate for Paymem relating solely to the RTD Improvements, which
Certificate shall conform.with the same procedures as set forth in this Section 6. EEF
shall be respons,ble for processing the Certificate with RTD and the payments to be ltlllde
by RTD shall <hen be received by EEF and remitted to the Master Developer . EEF shall
have no obligation to pay for the portion of the cost of the RTD Improvements which is •
payable by RTD until such time as RTD makes such payment, provided the RTD payment
is not delayed as a result of any act or omission by EEF .
6.4 COP Improyeme~. EEF has previously sold Certificates of Purchase
("COP") to fund portions of lhe Master Development Project and the Civic Center
Building which will be use<': by the City and its related agencies for their offices. EEF
shall be responsible for p!ocessing for payments, as applicable, any portions of the cost of
the Work which will be paid from the COP proceeds , and the Master Developer shall
cooperate • ·'.:h EEF by supplying EEF such in'(lrmation as in required to obtain payments
from the COP proceeds.
6.5 Condjtions to Each Disbursement. At no time and in no event shall EEF be
obligated to disburse funds:
6.5 .1 In excess of the arn,,unt recommended by the Project Architect;
6.5 .2 If any Event of Default as described in Section 7.1 hereof shall have
occun-ed;
6.5.3 If, in the reasonable opinion of EEF, the amount remaining to be paid
for Master Development Fixed Price is not ~ufficient to pay for the balance of the Work to
be completed .; or
6.5.4 If the Work shall have been damaged by fire or other cusualty :md EEF
shall not have received insurance proceeds sufficient in the so·, judgment of EEF to effect
the restorat:.in of the Work in accordance with Plans and Specifications and to permit the
comple !ion ot the Work on or before the Completion Date set forth herein.
6.6 B,etajnage and FjnaJ Disbursement . A portion of each disr.ursement by EEF
for costs of construction of the Work and Improvements due the General Contract shall be
retained by EEF as described in Section 4.1, which r~tainage shall be disbursed only upon
compliance with the following requirements (in addition to the requirements for all other
disbursements):
6.6 .1 Receipt by EEF of satisfactory evidence of the completi,,o of the Work
an.~ In1provements in accordance with Plans and Specifications and approval of such
completion by the representative of EEF;
6.6 .2 Receipt by EEF of a satisfactory "as-built " blueprint or survey
reflecting the location of the Improvements on the Land in accordance with the Plans and
• Specifications;
6.6.3 Receipt by EEF of either lien waivers or relCll.!es from all comncton,
subcontractors, laborers and ma terialmen employed in furnishing labor or materials in
connection with the Work;
6.6 ~ The conditions for disbursement of retention under the terms of the
Construction Contract shall have bef.n satisfied, and copies have been furnished to EEF of
any dOCWIIC .lltS, certifications or accounting required to be delivered by General Colllrllctor
as a coo.ciirion for dt;bursement to General Contractor of any retention; and
6.6 .5 Receipt by EEF of such other cenificates and assurances as EEF shall
reasorJ1bly require.
6. 7 Notjce Freguencv md Place of DjsbursemcntS. The Cenificate for Payment
shall be submitted to EEF at lea;t ten (10) business days prior to the date of the requested
advance. Disbursements shall be made no more frequently than monthly and in amounts of
not less than Fifty Thousand Dollars ($50,000.00). All disbursements shall be made on
the 25th day of a calendar month (or, if not a business day. on the first business day
following).
6.8 ~-Master Developer will irnmedi: tely deposit all
disbursements made by EEF in a separate and exclusive account, to be withdrawn and used
snlely for payments of costs of the Work .
6.9 Al1Yin£.es JO Contractor. At its option EEF may make any or all disburse-
ments directly to the General Contractor . No further direction or authorization from
Master Developer shall be necessary to warrant such direct advances to Contractor and all
such advances shall satisfy 1210 llllll9 the obligations of EEF hereunder as fully as if made
to Master Developer, regardless of the disposition thereof by General Contractor . In the
event EEF makes payments directly 10 the G.:neral Contractor, it shall use its best effons
to cause General Contractor to comply with the conditions for such payment as provided in
the Construction Contract.
6. 10 Real)ocatjon of Budge~. In the event Master Developer furnishes EEF
satisfactory evidence that the amount remaining for any item in the Schedule of Value will
not be required to complete such item, such unused amount may be re-allocated to another
item in the Schedule of Values ; prov;_ded , however, amounts allccated for hard costs (costs
of materials and labor) may not be reallocated for soft costs (such as fees).
6. 11 Comjngencjes . •
•
6.11.1 The parties acknowledge that die Schedule of Values include a contin-
gency for the Master Developer of 4.7lli of conslrUCi.\on costs, excluding soft COIIS
("Master Developer's Contingency") and a contingency for the General Contractor of 591,
of construction costs, excluding soft costs ("Contractor's Contil!llcncy•). The Master
Developer'3 Contingency is to be used by the Master Developer for actual costs which
exceed the Schedule Values whid, -e::ult from any matter other than a change in the Plans
and Specifications made at the request of EEF or for costs to !le abscrbed by the General
Conn-actor as pan of the Guaranteed Maximum Price as provided in the Construction
Contract . The panics agre~ that, upon completion of the Work, in the event the actual
amount charged in the aggregate against the Master Developer's Contingency and the
Contractor's Contingency in accordance with the terms of this Agreement is less than the
aggregate amount originally allocated in the Schedule of Values ("Contingency Savings"),
the first $500,000 of Contingency Savings shall be paid to the M'lSter Developer and any
excess shall be paid to EEF . However, in the event EEF receives any portion of the
Contingt•ncy Savings , EEF agrees to , .iinvest such amount in the Property in the form of
additional work , additional improvements, or enhancements to the existing work or
improvemems .
6.11.2 The parties agree that no portion of the Master Developer's
Contingency shall be disbursed until such time as the Master Developer bas consumnlP.!ed
the Agreement To Lease and Develop Retail Property and has made the Land Payment t)
EEF as required under the Agreement.
SECTION 7.-Events of Default
7.1 Events of Default bv Master DeveJoper. Jf one or more of the following
events occur, and the same is not cured by the Master De ..-eloper within the time provit!ed
in Section 7.3, the same shall be deemed an "Event of Default" by •he Master Developer
and EEF may then exercise one or more of the remooies as providc-d under this
Agreemem :
7. I . I The Master Developer, subject to Excusable Delay. fails to comply
with the Schedule of Performance; or
7.1.2 The Master Developer fails, within thirty (30) days following the
recording of any mechanics' or marerialmen·s lien or other similar document filed against
the Property , to bond against. proviae security for or remove such lien in accordance with
this Agreement ; or
7 .1.3 The Master Developer fails to :,ay, v;ii:!I du•, any sum required to be •
paid by the Master Developer by the terms of this Agreement; or
7. I . 4 The Master Deve!oper, or any General Partner of the Master
Developer. commences a vo!Wltary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect; or
7 .1.5 The Master Developer fails to observe or perform any other material
covenant, obligation or agreement of the Master Developer provided in this Agreement;
7. I. 6 Any suit shall be filed ag1ins1 Master Developer or Guarantor, which if
adversely determined, could in EEF's reasonable opinion substantially impair the ability of
Master Developer or Guarantor to perform each and every one of its obligations under this
Agreement; o~
7.1.7 There is a'ly substantial deviation in the Work from the Plans and
Specifications without the prior written approval of EEF, or there is incr.,porat,."1 in the
Work any substantially defective ;1orkmanship or materials, which said deviation ~r defect
is not commenctd to be corrected within ten (10) days after written 11,tice thereof and such
correction cliligently continued to its conclusion; or
7. I. 8 There appears on any su!vey required hereunder encroachments which
have occurred without the approval of EEF and which are not commenced to be removed
or corrected within r.venty (20) days after receipt of EEF' s notification to Master
Develope r of the existence thereof and such removal or correction diligently continued to
its conclusion; or
7.1.9 Once commenced, there occurs cessation of the Work prior to
completio n fo r a continuous period of ten ( 10\ :lays or more for causes other than for
Excusable Delay or consented to in writing by l'EF; or
7. l. 10 Any person obtains an order or ci.:cree in any court of competent
jurisdiction, as a rer.ult of any claim against the Master Developer, enjoining the Work
enjoining or prohibiting Master Developer or EEF from performing this Agreement,
:md such proceedings are not properly contested or such decree is not vacated within
thirty (30) days after the granting thereof; or
7.1.11 Master Developer neglects, fails, or refuses to keep in full force and
effect any required permit or approval with respect to the Work; or
:~LJEJrrml£\!NGLEWDIM•WIMAST'Df\l\Dt<,.lfl'.Yll.wp4 J 9
•
7 .1.12 If Master Developer shall not have obtained all aovernmental
approvals requisite for the Work or (ii) after commencement of the Work, the Work should
cease or not be diligently prosecuted or the Work should be damaged or dcsttoyed by
casualty not covered by any insurance policy in favor of Master Developer and EEF and/or
in case of casualty not covered by insurance or delay caused by no fault of Master
Developer, Master Developer shall not have commenced the work or the repair of such
damage or desllllction within sixty (60) days from the occurrence thereof; or
7. 1.13 Master Developer defaults (following the expiration of any applicable
grace period) in the perfonnance of any tellllS or conditions required 10 be perfonned by it
unde1 the Agreement to Lease and Develop Retail Property.
7.2 Evems of Default by EEf. In the event EEF fails to perform any material
covenant, term or condition in this Agreement, including, without limitation, compliance
with the Schedule of Perfnrmance, subject to Excusable Delay and the same is not cured
by EEF within the time provided in Section 7 .3 , the same shall be deemed an "Event of
Default" by EEF and the Master Developer may then exercise one or more of the remedies
as provided under this Agreement.
7 .3 Grace Periods. If any event referred to in Sections 7.1 or 7.2 occurs , such
event shall not constitute an Event of Default if the failing or defaulting party cures such
failure withing thirty (30) days following receipt of written notice of such failure or default
or , if the failure or default is one which cannot reasonably be cured in such thirty (30)
days , if such party takes reasonable action to cure such failure or default within the thirty
(30) day period and thereafter diligently prosecutes such cure to completicn .
SECTION 8.-~
8.1 Remedjes of EEF. Upon the occurrence of any one or more of the Events of
Default set out in Section 7.1, EEF shall at its option be entiiled 10 proceed 10 exercise any
of the following remedies :
8.1.1 10 terminate this Agreement by notice to Master Developer , provided ,
however , following such termination the Master Developer shall remain liable for any
damages resulting fr om the Event of Default:
8. 1.2 to take whatevt.-action is necessary or appropriate by the use of legal
proceedings er otherwis~ (A) to cause Master Developer to varate the Property and (B) to
take posse ssion of the Property ;
!~,cuvmu,E.NGuwo•\t•W'IMASTOEV\Dn·•·•l? . ..,.:1 20
8.1.3 to pe1fonn or cause 10 be pttfonned any and all work and labor
necessmy to complete ihe lmpr..vement~ in accordanc~ with Plans and Specifications;
8. 1.4 to employ security wi,tchmen to protect the Property; and
2. i . 1 10 (iisburs~ that !)'jrtion of rhe Master Developmen, Fixed Prke not
previously disbursed (inc!.iding ~11y rerainage) to !he extent necessary 10 complete the
Work in a,:,:ordance with the Plans .:nd Specifications, and if the completion requires a
larger sum 1han the remaining undisbursed portion of the Master Develop.rnent Fixed Price,
to disburse such additional funds, and to lake all actions 1iecessary in connection therewith,
including bur not limited 10 the following: to use any funds which may remain unadvanced
hereunder for the purpose of completing the Work in !he manner called for by the Plans
and Specificarions ; 10 make such addir'ons and changes and corrections in the Plans and
Specifications which shall be necessary or desirable 10 comple~ the Work in substantially
the manner contemplated by the Plans and Specifications: to employ such contrnctors,
S'Jbcontractors, agents, architects and inspectors as shall be required for said purposes; to
pay , settle or compromise all existing or future bills and claims which are Jr may be lieas
against said Property or as may be necessary or des irable for the completion of the Worll:
or the clearance of title 10 the Property ; to execute all applications and certificates in the
ru:me of Master Developer which may be requirer'. by any construction contract and to do
any and every ac1 wilh respe ct to the construct;~n of the Improvements which Master
Developer may do in its own behalf. EEF shall lu .ve no obligation to undertake any of the
foregoing actions ,md 'f EEF shall do so , it shall have no liability to Master Developer for
the sufficiency or adequacy of any such actions taken by EEF. In the event EEF
reasonably advances funds hereunder in excess of the amount remaining to be paid under
the Master Deve·lopment Fixed Price, the Master Dev eloeer shall reimburse EEF for such
excess upon demand , together with interest at the rate of 12 % per annum fro'll the date of
advance to the date ,,f repayment .
8.1.6 EEF shall have the right at any time and from time to time to set-off
and apply any and all a.mounts paid 10 complete the Work against any amounts owing by
EEF to or for the credi t or the account of Master Developer , including but not limited to
tl1e ;>,.~aster Dev,:lopm,:nt Fixed Fee . The rights of EEF under this subsection are in
atldition to any other rig.~ts and remedie, (includin~. without limitation . other rights of set-
off) which EEF may hav,:.
8. I . 7 In the ev~nt this Agreement is terminated as a result of the occurrence
of an Event of Dt:fault (and specifically excluding termination under Sections 3.5 or 3.6),
the Master Developer s.hall be obligated to reimbur se EEF for the cost incurred by EEF to
complete the Work in excess of the amount remaining 10 be disbursed from the Master
Development Fixed Fee. •
8 .2 Remedies of Master DeyeJoper op Occymgce of an Event of Default by EEF.
If any Event of Default by EEF occurs, the Master Developer shall be entitled to all reme-
dies at law or in equity including specific performance; provided, however, that any award
of damages to the Master Developer shall be limited to actual direct and consequential
damages incurred and shall not include punitive damages.
8.3 Delays: Wajvers. Any delay by either party in asscning any right or remedy
under this Agreement shall not operate as a waiver of any such right or deprive the party
of or limit such rights in any way: nor shall my waiver in fact made by such party with
respect to any Default r,r Event of Default by the other party under this Agreement be
considered as a waiver of rights with respect to any other Default or Event of Default by
the other party under this Agreement or with respect to the particular Default or Event of
Default, ex~ept to the extent specifically waived in writing. It is the intent of the parties
that this provision will enable each party to avoid the risk of being limited in the exercise
of any right or remedy provided in this Agreement by waiver, !aches or otherwise at a time
when it may still hope to resolve the problelll!; created by the Default or Event of Default
involved.
8.4 Excus2ble Delav. Neither EEF nor the Master Developer, as the case may
be, shall be considered in default of its obligations under this Agreement in the event of
delay due to an Excusable Delay . In the event of the occurrence of any Excusable Delay
rhe time or times for performance of the obligations of the party claiming delay shall be
extended for a period of the delay; provided . that the party seeking the benefit of the
provisions of this Section ,hall, within five (5) business days after such party knows of any
such delay firs t notify the other party of the specific delay in writing and claim the right to
an extension for the period of the delay. In the event perfonnance is extended beyond
ninety (90) days by reason of any Excusable Delay. this Agreement may be terminated by
the other parry . In no event shall failure by Wal-Mart or Forest City to make their Land
Payment conscirute Excusable Delay for performance by EEF (however. EEF shall have
the right to terminate this Agreement , as provided in Sectiou 3.5). ·
8.5 No Consequential Damages . In the event either pany is liable in damages to
the other as a result of a default under this Agreement , such damages shall be limited to
acrual damages and in no event shall include consec;uential damages; provided. however , in
the event EEF is liable to any third pany (such as RTD under the RTD Int~r-govemmental
Agreement) for liquidated or other darnagr~ as a result of delay in completion. such
damages shall be dee med acrual damages for purposes of this paragraph.
• SECTION 9.-Mjscellaneous
9. J Supersede• Prior Alzreemem Mutual Release . The Parties previ01181y entered
into ~ 1·:~-Llevelopment Agreemem, which Agreement was amended by the First Amend-
ment dat=ll April 21, 1999 . The Parties actnowledge and agr:e that their Muter Dev~-lop-
ment Ag:-~ .nent supenedes In its entirety the Pre-Development Agreement, as amendl:d
and further agree that the Pre-Development Agreement is of no further force and effect.
Simultm,,,,1,,ly with the execution of this Agreement, the Parties are also executing a
niurual re1 r_,•se, releasing each other from any and all claims arising in connection with the
redt ·.'elopmsnt of the Property; a copy of the form of mutual release is attached hereto as .~.
9.::: ~-No failure by either party hereto to :nsist upon the strict perfomllll!Ce
,,f any covenant, duty , agreement or condition of this Agree,nent, or to exercise any right
or remedy consequent upon a breach of this Agreement, shall r.onstirute a waiver of any
such breach or of such or any other covenant. agreement, term o, ~ondition. Either party
by giving notice to the other party may, but shall not be required to. waive any of its rights
or any conditions to any of its obl igations hereunder . No waiver shall affect or alter the
remainder of this Agreement, but each and every covenant. agreement, term and condition
of this Agreement shall sontinue in full force and effect with respect to any other then
~xisting or subsequen : breach .
9.3 Anorneys' Fees . In any proceeding brought to enforce the pro·{isions of !his
Agreement, the prevailing party therein shall be entitled to an award of reasonable
att0rneys' fees , actual court .:osts and other expenses incurred.
9.4 ~of.Immsl. Master Developer shall have the duty 1v dis:lose in
writing any person or entity who is either directly 0r indirectly associated with or affiliated
with M~ster Developer or its partners and who is : A member of the governing body of the
City; an employee of tl;e EEF who exercim responsibi.liry concerning development of the
Prope11}'. or an individual or firm retam I by the EEF who has performed consulting
services in connection with the redevelopment of the Property . None -of the above persons
or entities shall participate in any decision relating to this Agreement that affects his or her
personal interest or the interest of any corporation , parmership or association in which he
or she is directly or indirectly interested exce pt after disclosure by the Master Developer
and approval by EEF .
9.5 Incorwratjon of Exhibits . All exhibits attached to this Agreement are
incorporated into and made a part of this Agreement.
9.6 EEF Not a Partner · Master Developer Not EEF's Agent . Notwithstanding
any language in this Agreement or any other agreement, representation or warranty to the
H:UXIQICUVffill\L-.OUWOIM,W'\MASTl)l!V\Drf ... , •12,_,. ,.,,_ 23 •
•
contrary. F.EF shall not be ueeme:I or constiruted a partner or joint venturer of the Master
Developer. The Master Developer :ball not be the agent of EEF, and EEF shall not be
responsible for any debt or liability of the Master Developer.
9.7 No Thjrd-Party Beneficiaries. Except as otherwise expressly agreed in writing
between eilher that Master Developer or EEF and a third party claiming such benefit, no
third-party beneficiary rights are created in favor of any pewn not a party to this
Agreement.
9.8 Applicable Law. The laws of lhe Sme of Colorado shall govern the
interpretation and enforc~ment of this Agreement .
9.9 Nmliabjlity of Cjty Officials and Emplovees . N" 1'.:ouncil Member, official
or employee of !he City , and no officer, director, or employee of EEF, nor any agent,
representative or consultlllt of eilher lhe City or EEF shall be personally liable co lhe
M•scer Developer in :he event of a.riy breach or Event of Default by EEF under this
Agreement.
9.10 Bjndjng Effect. This Agree:'lent shall be binding on and inute 10 lhe benefit
of lhe panies hereto, and !heir successo,s and assigns. subject to lhe limitations on
assignability of !his Agreemem by lhe Ma<ter Developer as set forth in this Agreement.
9.11 Councerparu. This Agreement may be executed in any number of counter-
parts, each of which shall constirute one and lhe $ame instrument.
9.12 N9liw. A notice, demand or olher communication under this Agreemenl by
any rarty t,) lhe other shall be sufficiently given if delivered in person or if it is dispatched
by registere..! or certified mail, postage prepaid, rerum receipt requested. or by federal
Express, Airborne or similar overnight delivery service for ae:tt business day delivery or
delivered persoaally, and
9.12. l In lhe case of lhe Master Developer, is adclressed co or delivered to
lhe Master Developer as follows:
Miller Weinganen Realty, LLC
2 Inverness Drive East, Suite 200
Englewood, CO 80112
Ann: Skip Miller
wilh a copy to :
fJllows:
9.12.2 In the case of EEF, is addressed 10 or deEvered perscnally to EEF as
Englewood Environmental Foundation, Inc.
3400 South Elati Street
Englewood, CO 80110
Attention: President
wilh a copy 10:
City Attorney
City of Englewood
3400 South Elati ~treet
Englewood. CO 80ll0
or at such other address with re~pect to any such party as that party may, from time to
time, designate in writing and forward 10 the other as provided in this Section.
9. 13 Entire Agreement: Amendments. Thi ~ Agreement and the Exhibits hereto
contain all of the covenants, terms, provisions, and agreements between EEF and the
Master Dev,:loper relating in any manner to r.!\e subject matter hereof. No prior agreement
or understanding with respect 10 the same shal: be valid oc of any force or effect, and no
covenant, term, or provision of this Agreement or the Ellhibits hereto, including but not
limited to the Schedule of Performance. shall be altered, changed . modified, or added to,
except in wri:ing, signed by EEF and the Master Developer. No representation, induce-
ment , ot understanding of any narure whatsoel"er made, stated. or represented on behalf of
either party hereto. either orally or in writing, has induced the other party to enter into this
Agreement except as set forth in this Agreement.
9.14 Resolution of Disputes. To the extem permitted b1 ,aw, should any disputr
ari::e regarding the interpretation or implementation of this Agreement, the Site Plan, or in
connection with any covenant. obligation or act to be performed under this Agr~ement. or
should any continuing even t nf default exist, tht parties agree that such Jisoutes and/or
continuing events of default i ~all be resolved in the following manner:
9.14.1 EEF ai , ... the Master Developer shall continue in good faith to attempt
to resolve such dispute or cure such continuing event of default for a period of not less
•
than fifteen (1.5) days followin! the identification by either party and written DOdce ID the
other party of die exbtence of a dispute or a C0lllinubg! event of default. ~
u ·; L •1·,U ,
9.14.2 In the event such dispute is not resolved or such continuing evem of
default is not cured within the fifteen (15) day period set forth above, EEF and the Master
Developer shall resolve the dispute in an Arapahoe County Court of competent
juriadiction .
• I
:~.w-~.TIL-r,• 26
)1 ' ;it
IN WITNESS WHERl'!OF, EEP 111d the Master Developel' have calllCd 1h11 r1!
Agrecraem to be duly executed u of the day first above written.
ATr..:ST :
N.-\DOCIICU&mll\lN"..il.lWO\M-~-•1 1 -,;1 .. _ 27
EEF :
Englewood f..nvirnnmental, Inc .•
a Colorado corpor.,tion
By : _________ _
MASTER DEVELOPER :
Miller Weingar'en Realty , LLC ,
a Colorado limited liability company
By :
Stewa."! A. Miller .
Manager/Member
By : Weingarten/Colorado, Im;., a
Texas corporation,
1\1.!anager/Member
By : _______ _
•
•
Exhibit A
ExhibitB
Exhibit C
Exhibit D
Exhibit E
ExhibitF
ExlnbitG
ExhibitH
Exhibit I
Exhibit I
Exhibit K
Exhibit L
Exhi;;itM
ExhibitN
ExhibitO
Lepl for all of the Property
Master Site P1111
-, I
RTD In1er-govemmenllll Agreement, together with the First Amendment
~.ciledale of Perfonnance
Site Delivery Plan
Design drawings
Specifications
Consll'IICtion Drawings
Interim Schedule of Values/Final Schedule of'Values
(to be substituted per Section 3.4)
Assignment of Architect's Contract and Plans,
Assignment of Contractor's Contract
Assignment of Engineers Contact
Assumption Agreement (RT!))
Guaranty of Completion
Mutual Release
:~IDfflUWG.IWtN,l~,,ll..... 28
EXHIBIT!
ASSIGNMENT OF ARCHITECT'S AGREEMENT
(David Owen Tryba Architer-ts)
THIS ASSIGNMENT OF ARCHITECT'S AGREEMENT llllde as of the 3rd day
of August, 1999, by Miller Weinganen Realty, LLC, a Colorado limited liability company
(hereinafter called • Assignor") to the Englewood Environmental Foundation, Inc., a
Colorado not-for-profit corporation (hereinafter called "Assignee"),
Y!'. IHLE S. HI H:
, \ssignor, for a valuable consideration paid by Assignee, the r~-ceipt and sufficiency
of whi .. :i are hereby acknowledged , does hereby absolutely and unconditionally Assign.
Trn nr,/~r and Set Over to ~ignee all right , title and interest of Assignor in. to and under
an agT•:ement (" Agreement ") dated February 26 , 1999 iierweenAssignor and David Owen
Tryba Architects (the • ArcrJ "-ct") to provide plans and specifications (.ny plans and
specifications prepared by Architect under the Agreement are herein :eferred to as the
"Plans") an d to provid e profess ion.~! architectural design services ("Services") for the
master develvpment site to be 1:nown as the Englewoui City Cecter (thr. "Improvements")
to be developed on a parcel of land containing approitimal~!y fifty (50i acres (the "Land ")
bounded on the west by Santa Fe Drive, on the sourh by Hampden Av e~ue , on the north
by Elati, and on the North by Floyd and a ponion by Darnnouth Avenues , in the City of
Englewood, Colorado , (the Lan<! and the Improvements hr.reinaftc r collectively called the
"Subject Property").
This Assignment is made by Assignor pursuant to Section 3.8 of the Master
Development Agreement executed simultaneously herewith by Assignor and Assignee ,
subjec t, howe ver , to the terms, prov isions and conditions herein set forth . All terms
capita!iztd terms not specifically defined herein shall have the meaning as set forth in the
Master Development Agreement.
1. Assignor hereby represents and warrants to Assignee that: (a) the Agreement
is th e only contract berw ,:en Ass ignor and the Architect relating to the construction of the
l mprovements ; (b) ther e are no amendments . exhibits or add~:i.!.a to the Agree.men! or the
Pians; (c) Assignor is •):~ sol e owner of the entire dght , tic le and int eresr of J~veloper in.
10 and under th e Agreement , has the full and com plete right to use the Plans and has good
titl e to and good right to assign the Agreement and the Pl ans to Ass ignee and t.'' nther
person or entity h.as any right, title or interest in the Agreement and the Plans except for
th e Architect ; (d) the Agreement is in full fore~ and effect and there has been no default •
•
•
by Assignor or the Architect thereunder and no event has occurred which w:th the passage
of time or the giving of notice, or both, would constitute such a default; (e) Assignor has
not executed any prior assignments of, or in any way transferred or encumbered or •;reated
or permitted any lien upon or cha:ge against, the A~eement or the Plans: (t) As!ignor has
pe1formed no act or executed any other instrwn('llt which might prevent .~ s1ignee from
enjoying and e:mcising any of its rights and privileges evidenced hereby .
2. Assignor hereby c-1venants and agrees wi•h Assignee that, so long as the
Master Development Agrfement remains in full force and effect, (a) Assignor shal:
faithi'ully perform each anc every one of its duties and obligations under the Agreement
and observe, ,atisfy and comply with each and every te1m, covenant , ~ondition,
agreement , requirement, restriction and provision of the Agreement to be performed by
Assignor ; (b) Assignor shall enforce the performance of each and every term , covenant,
condition, agreement, requirement , restriction and provision of the Agreement to be
performed by the Architect and shall not waive , excuse . condone, discount , set off,
compromise or in any manner release or discharge the Architect under the Agreement from
any of the foregoing; (c) Assignor shall not alter , modify or amend the Agreement or the
Plans, except by agreement in writing signed by Assignor, Assignee and the Architect ; (d)
Assignor shall not cancel or terminate the Agreement ; (e) Assignor shall give prompt
notice to Assignee of any claim of or notice of default under the Agreement given to or by
Assignor, together with a copy of any such notice or claim if the same is in writing; (t)
Assignor will make no assignment , pledge or other disposition of the Agreement or the
Plans; (g) Assignor shall at all times defend Assi!'.Jlee 's first and prior right in and to the
Agreement or the Plans against any and all claims adverse to the claim of Assignee ; and
(h) Assignor shall ap;,ear in and defend any action arising out of, or in any manner
connected with , the Plans or the Agreement or the duties . obligations , liabilities and
responsibilities of Assignor or any .~ua ranr or or surety thereunder or wirh respect thereto
and, upon request by Assignee, shaP. make appearance in the name and or , behalf of
.Assignee, but at the expense of As si~no r.
3. Until an event of default by Assignor has occurred under the Master
D:velopment Agreement , or u.atil occurrence of an event or circumstanct which with the
lapse of time or the giv ing of notice , or both, would constitute such an event of default,
As signor sha ll ha ve a license, limited as pwvided herein , to exercise its rights under the
Agreeme .11 and to use the Plans in accordance with rhe terms and co ndit ions of this
Assignment and the Master De velopment Agreement. 'J pon the occurrence of an event
of defau .'.t \\nder the Master Development Agreement or the occurrence Qf an event or
circumstance which with the lapse of time or the giving of notice . or both , wo.ild constitute
such an event of default, Assignee shall have the right , power and pr iv ilege (but shaU be
H'DOCS',CllE.'11'Af'~E\\'OIM•'4'1.\L\.SfOE\'\USIG.'1 AAC 1-.1 7/U.991 -2 -
under no duty) to terminate the license grd.llled to Assignor hereunder and thereupon •
Assignee shall haw any and/or all of the following righlS and remedies: (a) Assli;uee may
exercise any and all rights and remedies and undertalce any and all actions which would
be available to Assignor under the Agreement and (b) Assiguee may exercise any and all
proprietary righlS in and to the Plans and fully utilize the Plans for Assignee's sole benefit.
Assignor hereby specifically authorizes Assignee, and hereby irrevor.ably constitutes and
appoinlS Assignee as Assignor's agent and attorney-in-fact, in Assignor's or Assignee's
name, to do any of the foregoing, said power of attorney being coupled with an interest
and not revocable by insolvency, bankruptcy, death, dissolution or otherwise. Upon
termination of said license., the Architect shall be, and is hereby, fully authorized and
empowered to continue the work and duties contemplated by the Agreement uc,der the sole
din:ction of Assignee, to be bound and obligated under the Agreement to the same extent
.s Architect is bound and obligared to Assignor thereunder, and to pennit Assignee to
retain and use the Plans for any and all purposes as Assignee may deem appropriate.
4. Assignee shall not be liable for any loss sustained by Assignor resulting from
Assignee's exercise of righrs under the Agreement or utilization of the Plans, or from any
other act or omission of Assignee under this Assignment unless such loss is caused by the
gross negligeoce or willful misconduct of Assignee, nor shall Assignee be obligated to
perform or discharge any obligation, duty or liability under the Agreement by reason of
this instrument or thr exercise of righrs or remedies hereunder. Assignor shall and does
hereby agree to indemnify Assignee for, ar j to hold Assignee harmless from, any and all
liability, loss or damage incurred under the Agreement by reason of this instrument or the
exercise of righlS or remedies hereunder, and from any and all claim~ and demands
whatsoever which may be asserted against Assignee by reason of any event or act or
failure to act by .Assignc~ occurring prior to Assignee's exercise of its righrs under this
Agreement.
5. Nothing contained herein and no act done or omitted by Assignee pursuant to
the powers and righlS granted it hereunder shall be deemed to be a waiver by Assignee of ·
its rights and remedies under the Master Development Agreerr,ent or a waiver or curing
of any default hereunder or under the Mas 1er Development Agreement, and this
Assignment is made and accepted without prej ' ·dice 10 any of the righlS and remedies
possessed by Assiguee under the terms of the '.,!aster Development Agreement.
6. The .right of Assignee to enforce the Master Development Agreement and any
other agreement e,i;ecuted in connection therewith may be exercised by Assignee either
prior to, simultam:nusly with. or subsequent to any action taken by it hereunder.
lt·\DOCS\Ct.lE.Vl'\lllL"iGUW:>IM •'-"'l.\tASTOE\-\,\UIG,'I A~C (hfflMI 7r.M9) -3-•
•
•
•
7. A determination that any provision of this Assignment is unenforceable or
invalid shall not affect the enforceability or validity of any other provision and any
determination that the application of any provision of this Assignment to any person or
circumstance is illegal or unenforceable shall not affect the enforceability or validity of
such provision as it may apply to any other persons or circumstances.
8. This Assignment and the terms, provisions , representations and warranties
herein contained shall be binding upon Assignor , and Assignor's successors and assigns,
!llld shall inure to the ~efit of Assignee, its successors and assigns, All references in this
Assignment to AssirJor or Assignee shall be deemed to include all such heirs, devisees,
representatives, succt:SS ors and assigns of such respective party .
9. Within this Ass i.gnment, words of any geode;• shall be held and construed to
include any other gender , and words in the singular number shall be held and construed
to include the plural and words in the plural number shall be held and construed to include
the singular , unless the context otherwise requires .
10. It is expressly agreed by the parties hereto that this Assignment shall not be
construed or deemed made for t.ie benefit of any third p2fty or parties .
11. This As ~i!Ul ment contains the entire agreement berween the parties hereto
concerning the ass ig,. 1t of the Agreement. No ~ ariations , modifications or changes
herein or hereof shall be binding upon Jay party hereto, unless set forth in a document
duly executed by or on behalf of such party .
IN WITNESS WHEREOF, Assignor has executed this Assignment of Archittct 's
Agreement as of the date first above written .
Miller Wein gE ten Realty , LLC ,
a Colorado limited liabili :y company
By:----------
Stewart A. Miller,
Manager/Member
By: Weingarten/Colorado, In,;., a Texas corporation ,
Manager/Member
~W\MASTD(V\,USIGNAAC0,,-)71':1.'99)
By:--------
-4 -
EXHIBITK
ASSIGNMENT OF CONSTRUCTION C;ONTRACT
THI:, ASSIGNMENT OF CONSTRUCT i0N CONTRACT AGREEMENT made
as of the 3rd day of August, 1999, by Miller Weing:uten Realty , LLC , :1 Colorado limited
liability company (hereinafter called • Assignor') :<J the Eng\,:,l\·;:'Jd Enviromnema!
Foundation, Inc ., a Colorado not-for-profit corporation \t:~rcinafu., ~ailed • Ass ignee"),
Assignor, for a valllllble consideration p1i<! by Assignee, the receipt aru; suf!· . .;icn~y
of which are hereby acknowledged , docs hereby absolutely and unconditionally P.~.s ign,
'i ransfer and Sec Over to Assignee all right, title and interest of Assignor in, to and under
211 agreement (" Agreement") daced _________ , 1999 between Assigno r
and Saunders Construcr'<Jn, Inc . (hereinafter called the 'Contraccor "), togeth .,r wirll any
and all renel'1als, extensions and modifications thereof and all amendments, exhibits and
addenda thereto (all of the foregoing hereinafter collectively called the "Construction
Contract") relat',ng to the construction of ctrtain i:nprovements described in the Agreement •
(hereina ft er called th~ 'Improvements") to be developed on a parcel of iand containing
approximately fifty (50) acres (the "Land") bounded on the wes1 by Santa Fe Drive, on
the south by Hampd,!n Avenue, on the north by Elati, and on the North by Floyd and a
portion by D. :trnou,h Avenues, in the City of Englewood, Colorado, (the Land and the
Improvements hereinairer collectively cailed the "Subject Property").; SUQject however.
to a license hereby granted by Assignee to Assignor to exercise its rights under the
Construction Comrac1, whi c,: hcense is limited as hereinafter p.ovided .
fhis Assignment is made by Assignor pursuam to Section 3. 8 llf the Mascer
Developmem Agreement executed simultaneously herelYith by Assignor and Assignee,
subject. however, to the terms, provisions and conditions herein set forth . All terms
capitaliled terms nt'I specifically defined hetein shall have the mea!'ing as set forth in the
Master Deveiopment Agreement
Assignor , for a valuable consideration paid by Assignee, the receipt and sufficiency
of which are hereby acknowledged, does hereby absolutely and unconditionally Assign,
Transfer and Set Over to Assignee all nght, title and incerest of Assignor in, to and under
the Cons11uc1ion Contract by and between Assignor and Saunders Construc:ion, Inc. •
l . Assignor hereby represents and .1arrants to Assignee that: (a) the
Construction Contract is the only contract becween Assignor and the Contractor relating
to the construction of tile Improvements ; (b) there ar~ no amendments, exhibits or addenda
to the Const:11ction Contract; (c) Assignor is the sole owner of the entire right, title and
interest of Owner in, to ruid under the Construction C'cntrar.t, has good title to and good
right to assign the Construction Contract to Assi~ and no v"ther person or entir, has any
right, title or interest in the Construction Contract except for the Contractor; (d) the
Construction Contract is in full force and effect and there has been no default by Assignor
or the Contractor thereunder and no event has occurred which with the passage of time or
the giving of notice, or both, would constirute such a default; (e) Assignor has not executed
any prior assignment.s of, or in any wa1 rransferred or encumbered or created or permitted
any lien upon or charge against, th~ Construction Contract; (f) Assignor has performed no
act or executed any other instrument which might pr~vent Assignee from enjoying and
exercising any of its rights anJ pri", tleges evidenced hereby.
2. ksignorllereby cr,venants and agrees with Assignee that, (a) Assignor shall
faithfully perform each and ever:, one of its duties and obligations under the Construction
Contract and observe, satisfy and comply with each and every term, covenant , condition,
agreement, rcquireme ·nt, restriction and provision of the Construction Contract to be
~rformed by Assignor ; (b) Assig:,0r shall enforce the performance of each and every
term, covenant, condhion, agreement, requirement , restriction and provision of the
Construction Contract to be performed by the Contractor and shall not waive , e.tcuse ,
condone, discount, set off, compromise or in any manner release or discharg~ the
Contractor under the Construction Contract from any of the foregoing; (c) Assignor sh;;!l
not alter , modify or lI!1end the Construction Contract in any material way, except by
agreement in wricing signed by Assignor , Assignee and the ContrQctor; (d) Assignor shall
not cancel or terminate the Construction Contracc; (e ) Assignor sha!l give prompt notice
to Assignee of any claim of or notice of default under the Construction Contract given to
or by Assignor, together wi th a copy of any ~uch notice or claim if the same is in writing;
(f) Assignor will make no a~sigument, pledge or other disposition of the Construction
Contract; (g) Assignor will not subordinate the Construction Contract to any deed of trust
or mongage or any other encumbrance of any kind or pennit , consent or agree to such
subordination; (h) Assignor shall at all times defend Assignee's first and prior rigbt in and
to the Construction Contract against any and all claims adverse to the claim of /..ssignee;
and (i) Assign()r shall appear in and defend any action arising out of, Jr in any manner
connected ,,ith , the Construction Contract or the duties , ob ligations . liabilitiC!: and
responsibilities of A•;signor or any guarantor or surety thereunder or with respect thereto
and , upon request by Assignee, shall make appearance in the name and on behalf of
• Assign~e . but at the expense of Assignor .
-2-
3. U'llil an event of default shall have occurred uuder the Muter Development
Agreement, or until occurrence of an event or circumstance which with !he lapse ()f time
or the giving of notir.e, or both, wo'lld coostitute sw:h an everu of del'ault, Assipr sh,ill
bl! entitled under t"~ license hereby granted, but limited as provided herein, to exercise its
rights under the Construction Conll?..:t in accordance with the terms and conditions of this
Assignment and the Loan Agreement. Upon the occurrence oi an event of default Ullder
the Master Development Agreement or the occurrence of an el'ent or i;;~,IIDStance which
with the iapse of lilile or the giving of notice, or both, would coll!ititute such an event of
default, Assignee shall bave the right, power a.,d privilege (but shall b.: uo.!, r ~ t,,cy) to
termmite the license granted :o A;signor hereunder ar:.d thereupon Assig.n~ may exercise
any and all rigilts and remedies ani undenalr.e any and all actions which would t e available
to Assignor under the Constructi,1n Contr,•ct. Assignor hereby spec1fically authorizes
Assignee, and hereby irr~vocabl., constirutes and appoints Assignee as Assignor's a.ient
and attorne y-in-fact, in As~ignor's or Assignee 's name, to do any of the foregoing, said
power of attorney being coupled with an interest and not revocable by inso; ::ncy,
bankruptcy, death, dissolution or otherwise. Upon tennination of said license, the
Contractor shall be, and is hereby, fuliy authorized and empowered to continue the work
aaJ duties contemplated by the Construction Co~tract under the sole direction of Assignee,
to be bound and obligated under the Construction Contract to the same e;,;tent as Contractor
is bouad and obligated to Assig nc,r thereunder.
4. Assignee shall not be liable for any loss sustained by Assignor resulting from
A~signee's exercise of rights under the Constructioo Contract , or from any other act or
omission of Assignee under this Assig.nment unless such loss is caused by the gross
negligence or willful misconduct of Assignee, nor shall Assignee be obligated to perfonn
or discharge any ob, --~~tion, cuty or liability under the Constmction Contract by reason of
this instrument or .,~ exercise of rights or remedies hereunder . Assignor shall and does
hereby agree to ino~cu:ify Assigne~ for, and to bold Assignee h.~rmless from , any and all
liability, loss or damage incurred under the Construction Contract by re..son of this
instrument or the exercise of rights or remedies hereunder, and from any and all claims
and demands whatsoever which may be assened against Assignee by reason of any alleged
<ibligations or undenakings on its pan tc perform or di~cbargc any of the terms , covenants
or agreements contained iI! .:,~ Construction Ccntract. The indemnities contained in this
paragraph shr.11 include liability . loss or damage result'ng fr.im fue negli.g~nce of Assignee
but not the gross negligence or wiliful misconduct of Assignee . This A;sigrunent shall not
operate to place responsibility upon Assignee for the comtruction of the Improvements or
in ,1ny way for the Subject Propeny, nor for the carrying out of any of the cerrns and
conditions of the Construction Contract.
-3-•
5. NOlhing comained herein and oo act done o~ Olll!tted by Assignee pursuant to
the p.,we.-s a.'ld rights granted it hereunder shall be deemed to be a waiver by Assignee cf
its rights and ~~edies under the Master Development Agreement ,1r a waiver or curing
of any default her~under or under the Master Development At,eement, and this
Assignment is made and accepted without prejudice to any of the righlll and remedies
;,assessed by Assignee under the rerms of r.be Master Deveicpment Agrei,ment.
6. The right of Assignee to enforce the Master Development Agreement and Illy
other agreement executed in connection therewith may be exercised by Assignee either
prior to, simul.aneously with, or subsequent to any action taken by it hereunder .
7. A determination that any provision of this As:,ignment is unenforceable or
invalid shall not affect the enforceability or validity of any other provision and any
determination that the application of any provision of this Assignment to any person or
circumstance is illegal or unenforceable shall not au ct the enforceability or validity of
such provision as it may apply to any other per•'lns or circwi:stances.
8. This Assignment ind the tenn.s, provisions, rt1>resentations and warranties
herei.n contained shall be binding upo n Assignor, and Assig!lor' s successors and assigns,
and shall inure to the henefit of Assignee, its successors and assigns, All references in this
Assignment to Assignor or Assignee shall be deemed to include all such heirs, devisees,
representatives, successors and assigns of such resper,1ve party .
1. Within this Assignment, words of any gtnder shall be held and construed to
include any other gender, and words in the singula, number sha!l be held an<l construed
to include the plural and words in the plural number shall be held and construed to iuclude
the singula,, unless the context otherw ise requires.
10. It is ex.pressly agr eed by the parti~s hereto that th.is As~igrunent shall not be
construed or deemed made for the benefit of any third par!y or parties .
11. This Assigrunent comains the entire agreemem be.rween the parties hereto
concerning the assignment of the Agreem en t. No variations. modifications or changes
herein 1r hereof shall be binding upon any party herero, urucss set forth in a document
duly executed by o~ on behalf of such patty.
-4-
IN WffllBSS WHEREOF, Aulpor ba uUCUlld dlll AulpmmlofCoalcructlon
· Contract u of the dale tint above wril:ral.
Miller Weinpnm Re,Jty, LLC,
• Colorado llmiled llabWty complllY
By :.......,--------
Srewan A. Miller,
Manager/Member
B ,✓eingartcn/Colorado, Inc., a Texas corporation .
Manager/Member
By : ___ _
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EXHIBITN II '
GUARANTY OF COMPLrnON
This Guaranty is entered inlo as of the 3rd day of August , 1999, by
WEINGARTEN REAL TY INVESTORS, a Texas Real Estate Investment Trust,
(hereinafter referred to as the "Guarantor") for the benefit of the ENGLEWOOD
ENVIRONMENTAL FOUNDATION, INC., a Colordo not-for-profit corporation
(hereinafter referred to as "EEF'·).
RECITALS
A. Simultaneously herewi:h, Miller Weingarten Realty, LLC, a Colorado
limited liability company (hereinafter referred to as "M-W"), and EEF have entered inlo
a Master Development Agreement relating to the redevelopment of the former shopping
center located in Englewood, Colorado prtviously known as Cinderella City. which
redevelopment is now known as Englewood City Center .
B. As an inducement to F',~ c e111er into the Master Development AfreelllClll ,
Guarantor has agreed to absolutely and un~ j-,n3lly guarantee the completion of consauction
of the on-site and off-site improvements (collectively, the "Improvements") in accordlIICe with
the Master Development Agreement.
AGREEMENT
Fer a valuable consideration, receipt of which is hereby acknowledged.
Guarantor, absolutely. unconditionally and irrevocably guarantees and agrees (a) to
complete the Improvements lien free as provided in the Master Development Agreement
and to perfo1111 fully and promptly when due all of the covenants, agreements and other
obligations undertaken by M-W in the Master Development Agreement and any
assignment, release or other agreement executed pursuant to the provisions of the Master
Development Agreement (the completion of the Improvements lien free and perfomance
by M-W of the covenants, agreements and other obligations under the Master Development
Agreement are hereinafter called the "Obligations"); and (b) to pay any and all costs,
attorneys' fees and expenses incurred or expended by EEF due to any default by M-W in
the performance of the Obligations or in enforcing any right granted to EEF hereunder or
under the Master Development Agretment.
EEF shall be under no obligation to notify Guarantor of its acceptance hereof
or any default by M-W in the performance of any of the Obligations, or to use diligence
in preserving the liability of any per,;on on the Indebtedness or the Obligations or in
bringing suit to enforce perfo1111ance of the Obligations. Guarantor waives all defenses
given to sureties or guarantors at !:lw or in equity other than the actual performance of the A
Obligations and all defenses based upon questions as to the validity, legality or ,,.
enforceability of the Obligations and agrees that Guarantor shall be primarily liable
hereunder .
EEF, without authorization from or notice to Guarantor and without
impairing, modifying, changing, releasing, limiting or affecting the liability of Guarantor
hereunder, may from time to time at its discretion and with or without valuable
consideration, take and surrender security, exchange security by way of substitution, or
in any way it deems necessary take, accept, withdraw, subordinate, alter, amend, modify
or eliminate security. add or release or discharge endorsers, guarantors, or other obligors,
make changes of any sc11 whatever in the Obligations or in the manner of doing business
with M-W, or settle or conpromise with M-W or any other person or persons liable on
the Obligations on such terms as it may see fit , and may apply all moneys re~eived from
the M-W or others, or from any security held (whether held u:..der a security instrument
or not), in such manner as it may determine to be in its best imerest, without in any way
being required to marshal securities or assets or co apply all or any pan of such moneys
upon any particular portion of the Obligaitons . It is specitical:y agreed that EEF is not
required to retain, hold, protect, exercise. due care with respect :hereto, perfect security
interests in or otherwise assure or safeguard any security for the Obligations ; no failure •
by EEF to do any of the foregoing and no exercise or non~xercise by EEF of any other
right or remedy of EEF shall in any way affect any of Gt :a rantor's obligations hereunder
or give Guara;:itor any recourse agains i EEF.
The liability of Guarantor hereunder shall not be modified, changed,
released, limited or impaired in any manner whatsoever on account of any or all of the
following: (a) the disability, dissolution or termination of M-W or any other person or
entity; (b) the failure by EEF to file or Mforc~ a clairr against the estate (eithrr in
administration, bankruptcy or other p:uceeding) of M-W Jr any other ~erson or e•1tity;
(c) recovery from M-W or any other person or entity becomes barred by any statute of
limitations or is otherwise prevented; '.d) any defenses, set-offs or counterclaims which
may be available to lvi-N or any other per~on or ent ity; (e) any release of M-W or any
other person (other than Guarantor) primanly or secondarily liable for the performance of
the Obligations or a~, part thereof ; (t) any failure of EEF to give any uotice to Guarantor
of any default by M-W under the Master Dev~lopment Agreement; or (g) any impairment,
modification, change, release or limitation of the liability of, or stay of actions or lien
enforcement proceedings against, M-W, its property . or its estate in bankruptcy resulting
from the operation of any present or future provision of the Federal Bani;ruptcy Code
(hereinafter called the "Bankrup!cy Code") or 01.her similar federal or state st1tute, or from
the decision of any coun . •
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EEF shall not be required to pursue any other r.:medles before invoking the
benefits of the guaranties contained herein, and specifically it shall not be required to mate
demand upon or instirute suit or olherwi.s pursue its remedies against M-W or any surety
other lban Guarantor or to .,roceed against any security now or hereafter-existing for tbe
payment of any of the Indeu~ness. EEF may maintain an action on this Gua r mty without
joining M-W therein and without bringing a separate action against M-W.
If for any reason whatsoever (including but not limited to ultra vires, lack of
authority, illegality, act of God or impossibility) the Obligations cannot be enforced against
M-W, such unenforceability shall in no manner affect the liability of Guarantor hereunder
and Guarantor shall be liable hereunder notwithstanding that M-W may not be liable for
such Obligations and to the same eittent as Guarantor would have been liable if such
Obligations had been enforceable against M-W.
Guarantor absolutely and unconditionally coven nn ts and agrees that in the
event that M-W does not or is unable to perfonn the Obligatir -any reason, including,
without limitation, liquidation, dissolution , receivership, c -v atorship. insolvency.
bankruptcy, assignment for the benefit of M-W's creditors, sale of all or substantially all
assets, reorganization, arrangement, composition, or readjusnnent of, or other similar
proceedings affecting the starus, composition, identity, eitistence, assets or obligations of
M-W, or the disaffirmance or tenninarionof any of the Obligations in or as a result of any
such proceeding, Guarantor shall perfonn the Obligations and no such occurrence shall in
any way affect Guarantor 's obligations hereunder.
Sholild the starus ofM-W change. this Guaranty shall continue and also cover
the Obligations of M-W under the new starus according to the terms hereof.
In the event any payment by M-W to EEF is held tu consrirute a preference
under the bankruptcy laws, or if for any rither reason EEF is required to rdund such
payment or pay the amount thereof to any oth~r party, such payment by M-W to EEF shall
not constirute a release of Guarantor from any liability hereunder, but Guarani Jr agrees
to pay such amount to EEF upon demand and th is Guaranty shall continue to c~ effective
or sh.!11 be reinstated, as the case may be, to the eittent of any such payment or payments .
Guarantor agrees that it shall not have (a) any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation or other right
or remedy of Guarantor against M-W or against any security resulting from the eitercise
or election of any remedies by EEF, or any defense arising by reason of any disability or
other defense of M-W or by reason of the cessation, from any cause, of the liability of M-
W.
K\DOC.J\CL~t-W\M.UTDtv.c_,..,..Ol..,..l'-'1 7/Ult91 .J.
Guarantor hereby repiesents, warrants and covenants tor and with EEF as
follows: (a) the execution, delivecy and performance of this Guaranty do not comraveue,
~I in the brea1.h of or constitute a default under any mortgage, deed of aust, ~.
promissory oote, loan agreement or other contract or agreement to which Guarantor is a
party or by which Guarantor or any of its properties may be bound or affected and do 1101
violate or contravene any law, order, decree, rule or regulation 10 which Guarautor is
subject; (b) there are no judicial or administrative actions, suits or proceedings pending or,
lo the best of C:iaranlor' s knowledge, threatened against or affecting Guarantor or
involving the validity, enforceability or priority oflhis Guaranty; AND (c) this Guaran:y
constitutes the legal, valid and binding obligation of Guarantor enforceable in accordauce
with its terms .
The rights of EEF are cumulative and shall not be exhausted by its exercise
of any of its rights hereunder or otherwise aga inst Guarantor or by any number of
successi•;e actions until and unless all Obligations have been perfonned and each of the
obligations of Guarantor hereunder has been performed . The existence of this Guaranty
shall not in any way diminish or discharge the rights of EEF under any prior or future
guaranty agreement executed by Guarantor .
Any notice or communication required or pennitted hereunder shall be given
in writing, sent by (a) personal delivery , or (b) expedited delivery service with proof of
delivery, or (c) United States mail, postage prepaid, registered or cenified mail, or (d)
prepaid telegram, telex or telecopy , s~nt to tht intended addressee at the address shown
below, or to such other address or to the attention of such other person as hereafter shall
be designated in writing by the applicable party sent in accordance herewith. Any su ch
notice or communication shall be deemed to have been given and received either at the
time of personal delivery or , in the case of deli very service or mail, as of the date of first
attempted delivery at the address and in the manner provided herein, or in the case of
telegram , telex or telecop y, upon receipt.
This Guaranty Agreement and the rights and obligations of the panies
hereunder and thereunder shall in all re spects be governed by , and construed and enforced
in accordance with, the laws of the State of Colorado (without giving effect to Colorado 's
principles of cnn nicts of law ). Guarantor hereby irrevocably submits to the non-exclusive
jurisdiction of ~ny Colorad o court or federal court sitting in Colorado over any suit, actic ,1
or proceeding arising out of or relating to this Guaranty Agreement , and Guara!ltor hereby
agree and consent that , in addition to any methods of service of process provided for under
applicable law, all service of process in any such suit, action o; proceed:ng in any
Colorado coun or Federal coun sitt ing in Colorado may be made by certified or registered
mail, return re ceipt requ ested, dire c ct! to Guarantor at the addres ~ of Guarantor for the
•
giving of notices hereunder, and service so made shall be complete ftve (5) days at)er Ille
same shall have been so mailed .
This Guaranty may only be modified, waived , altered or amended by a
written instrument or instruments execuu:d by the party against which enforcement of Jaid
action is asserted. Any alleged modification, waiver, alteration r ; amendment which is
not so documented shall not be effective as to any party .
The terms, provisions, covenants and conditions hereof shall be binding upon
Guarantor and the heirs , devisees, represex...atives, successors and as~igns of Guarantor and
shall inure to the benefit of EEF and its successors and assigns . Within this Guaranty,
words of any gender shall be held and construed to include any other gender and words
in the singular number shall be held and construed to include the plural, unless the context
otherwise requires . A determination that any provision of thi· Guaranty is unenforceable
or invalid shall not affect the enforceability or validity of any other provision and any
determination that the application of any provision of this Guaranty to any person or
circumstance is illegal or unenforceable shall not affect the enforceability or valid:ty of
such provision as it may appl J to any other persons or circumstances .
IN WITNESS whereof the Guarantor has executed this Guaranty the day and
year firs above written .
The address of Guarantor is:
The address of EE Fis :
3400 So . Elati Street
Englewood, CO 801 IO
Attention : President ·
N.'DOC~W\M ~.01...,..0--)11?1/MJ -5-
WEINGARTEN REAL TY INVESTORS,
a Texas real estate investment trust
By :
STATE OP TEXAS
COUNTY OF __ _
)
) ss.
)
The foregoin& imtrument was acknowledged before me this __ day of
J1111e, Im, by_----~--• as ______ ofWeingartenRealty
Investment, a Texas real escate investment trust.
WITNESS my band and official seal.
My commission expires: ------------'r'------
Notary Public
M~~.,01.,.(l,9a)11ZMt'l -6-
•
EXRIB[I' O f. II I ' ..
MUl'UAL RELEASE
This Murual Release is executed as of the 3rd day of August, 1999 by and amoDg
Miller Weingarten Realty , LLC , a Colondo limited liability company ("M-W"), the Englewood
Environmental Foundation, a Colorado non-profit cotp0ration ("EEF") and the City of
Englewood, Colorado, a home rule lllllllicipal COtpOration ("City") (EEF and the City an:
sometimes hereinafter referred to collectively as "Englewood").
ARTICLE I
l.J The City determined that it was desirable to redevelop that certain property
formerly known as Ciuderella City and located wit.'lin the city (the "Property ").
1.2 The City selected Miller-Khchell as the deveiuper 10 redevelop the Property as
a retail center . Miller-Kitchell subsequently assigned any interest it had in the redevelopment
project 10 M-W .
1. 3 The City subsequently determined co redevelop the Property as a transit oriented
development, which would include a portion of the Pro~erty being redeveloped for retail use .
The City continued to work with M-W as the retail develope., and as a Maste;· De vob per .
1.4 The City subsequently rransferred the Property to EEF, and EEF bas continued
to pursue the redevelopment project.
1.5 EEF and M-W desire to enter into a Master Development Agreement, and
contemplate that they will subsequently enter into an agreement to lease and develop the retail
ponion of the Property . As an inducement for the parties co enter into the Master Develop-
ment Agreement, the parties have requested each other to enter into this Mutual Release,
releasing any and all claims any party may have agai~t the other relating to the redevelopmem
project and arising pri0r 10 the dace hereof.
NOW, THER.'.::FORE, in consideration of the murual covenants contained herein and
other good and valuable consideration , the receipt and sufficiency of which are hereby
acknowledged , the panics agree as follows :
ARTICLED
MUTUAL RELEASES
2.1 M-W hereby releases Enalewood, Ill officers, dim:ton, qena, representatives and •
enl'j)loyees of and from all claims, demands, causes of action, c' amqes, liability, or obliptiom
of any nalUIC whatsoever, whether or not accrucd1 contmacm or known, aruina on or prior to tbe
dati: of this Mutual Release and relating to the redcve!O\)lllelll of the Property .
2.2 Englewood hereby releases M-W, its partners, officers, apnll, repraelllltives and
employees of and from all claims, demands, causes of action, damages, liability, or obligations
of any nalUIC whatsoever, whether or not accrued, COlllinpm or known, ariaina on or prior to the
date of this Mutual Release and relating to the redevelormen1 of tbe Property.
2.3 Nothing herein shall relieve either M-W or Englewood of any liability orobligation
lo be performed subsequent lo the date of this Mutual Release as sel forth in the Master
Development Agreement , or any other agreemem subsequently entered inw by the panies .
2.4 This Murual Release may be executed in counterparts and, w!:~n one or more
counterparts have been signed by each party , shall constirute an agreement binding upon all
parties .
2.5 Facsimile signarures by any party shall be deemed to be and have the same effect
as original signarures by such party, and shall be effective for all purposes.
2.6 This Agreement shall be construed in accordance with the laws of the State of
Colorado.
IN WITNESS WHEREOF, this Mutual Release has been duly executed and delivered by
each of the parties as oi the date first above written .
MILLER WEINGARTEN REALTY , LLC ,
a Colorado limited liability company
By :
Name : --------I ts:
2
Ei'IGLEWOOD ENVIRONMENTAL FOUN-
DATION , a Colorado non-profit corporation
By:
Name: ________ _
Its :
CITY OF ENGLEWOOD , COLORADO .
a home rale municipal corporation
By :
Name: __________ _
Its :
•
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COUNCIL COMMUNICATION
Om Agenda Item Subject Support al Master
Development AgrNm.o,t
between t.tller Weingarten and
August 2, 1999 11 c II the Engtewood Envlronmenlal
Foundation
Initiated By Stiff Source
Robert Slmpsor., Board Director
Englewood Environmental Foundation Englewood Environmental Foundation
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
On August 1 o, 1998 City Council adopted Resolution No . 90, Series of 1998 supP"rtlng 1he M. dter
Plan proposed by the Englewood Environmental Foundaticn and MIiier Weingarten for the Clnck ,rella
City srte .
On November 10, 1998 City Council adopted Resolution No . 100, Series ol 1998 supporting the Master
Development Agreement proposed by the Englewood Environmental Foundation and MIiier
Weingarten for the redevelopment of the Cinderella City site .
On April 19, 1999 City Council adopted Resolution No . 50, Serles ol 1999 supporting the "First
!'s11111ndment to Pre-development Agreemenr between Miller Welnrvten Realty, LLC., arid the
Ell'Jlewood Environmental Foundation for ,he Cinderella City Redevelopment.
RECOIIU'IENDEO ACTION
Stall recommends that Council autho riz e Englewood Environmental Foundation (EEF) to enter into a
long term lease of the identified property with Miller Weingarten Development.
BACK~!'IOUND, l~ALYSIS, AND ALTERNATIVES IDENTIFIED
The Englewood Environmental Foundation will own the subject property long term but under the terms
of the Master Developer Agreement, EEF transfers responsibilities for property developmen1 to the
Master Developer .
The M&ster Dev~lnpment Agreement includeE the following major elements .
1. Describes Miller Weingarten responsibilities for developing the land and building on-site,
and off-site infrastructure .
2. Provides authority and responsibility for assembl ing land consistent with the approved
Master Plan .
FINANCIAL IMPACT
There is no direct cost associated with this Resolution of Support . The proposed Resolution will
demonstrate support for the EEF and Miller Weingarten leading to "1e final development agreement.
UST OF ATTACHMENTS
Proposed Resolution