Exhibit 10.26
SITE IMPROVEMENT AGREEMENT
THIS AGREEMENT is made this _______ day of _______________, 2000, by and
between the CITY OF BLACK HAWK, COLORADO (the "City"), and WINDSOR WOODMONT
BLACK HAWK RESORT CORP., a Colorado corporation (the "Developer").
RECITALS:
A. The Developer is the owner of certain real property located in the City
of Black Hawk known as Black Hawk Casino By Hyatt which is more particularly
described in Exhibit A attached hereto and made a part hereof (the "Property").
B. The Developer desires to obtain an Excavation Permit within the meaning
of Section 18-242 of the City of Black Hawk Municipal Code to perform an
Excavation Project, and must therefore provide Completion Funds within the
meaning of Sections 18-241 and 18-252 of the City of Black Hawk Municipal Code.
C. The City and the Developer desire to enter into this Site Improvement
Agreement as required by Section 18-241(3) in order specify the terms and
conditions upon which the Completions Funds shall be disbursed, drawn upon
and/or used by the City for completion of the Excavation Project or Site
rehabilitation.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the sufficiency of which are mutually acknowledged,
the parties hereto agree as follows:
1. Purpose. The purpose of this Agreement is to set forth the terms and
conditions of the use of the Completion Funds submitted by the Developer to the
City in order to secure an Excavation Permit for an Excavation Project for which
Completion Funds are required within the meaning of Section 18-241(3) of the
City of Black Hawk Municipal Code. All conditions contained herein are in
addition to any and all requirements of the City of Black Hawk Subdivision
Ordinance and Zoning Ordinance, the City of Black Hawk Territorial Charter, any
and all state statutes, and any other sections of the City of Black Hawk
Municipal Code, and are not intended to supersede any requirements contained
therein. To the extent terms are contained herein which are otherwise undefined,
such terms shall be defined as set forth in Article XII of Chapter 18 of the
City of Black Hawk Municipal Code, as amended.
2. Amount of Completion Funds. The Developer hereby agrees to submit to the
City prior to the issuance of an Excavation Permit for the Property, funds in
the amount of Five Million, Seven Hundred Ninety-Four Thousand, Five Hundred and
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Twenty-Two Dollars and 80/100 ($5,794,522.80), which amount constitutes one
hundred and ten percent (110%) of the amount necessary to complete the
Excavation Project as set forth in Section 18-241(3) of the City of Black Hawk
Municipal Code based on an actual bid attached hereto as Exhibit B, and
incorporated herein by this reference (the "Completion Funds") which shall be
provided pursuant to an Escrow Agreement, in the form which is attached as
Exhibit C and incorporated by this reference and Five Hundred Twenty-Six
Thousand Seven Hundred Seventy-Five Dollars and 20/100 ($526,775.20),
constituting an additional ten percent (10%) of the total cost of the Excavation
Project as Site Rehabilitation Security within the meaning of Section 18-251 of
the City of Black Hawk Municipal Code, which shall be provided to the City in
the form of cash or irrevocable letter of credit prior to the issuance of an
excavation permit.
3. Use of Completion Funds. In the event work is stopped on the Excavation
Project, for a period of ten (10) consecutive days or more, other than for a
demonstrated force majeure, the City shall draw upon the Completion Funds and,
at its sole discretion, either complete the Excavation Project or otherwise
rehabilitate the Property in accordance with the Site Rehabilitation standards
set forth in City of Black Hawk Municipal Code ss.18-241(8). Upon completion of
the Excavation Project or the Site Rehabilitation, the City shall release any
remaining Completion Funds to the Developer within thirty (30) calendar days of
completion of the City's work.
4. Breach by the Developer; the City's Remedies. In the event of a breach
of any of the terms and conditions of this Agreement by the Developer, the City
Council shall be notified immediately and the City, may take such action as
permitted and/or authorized by law, this Agreement, or the ordinances and
Charter of the City to protect the public health, safety and welfare; to protect
lot buyers and builders; and to protect the citizens of the City from hardship
and undue risk. These remedies include, but are not limited to:
a. The revocation of an Excavation Permit;
b. The refusal to issue any building permit or certificate of
occupancy;
c. Any other remedy available at law.
Unless necessary to protect the immediate health, safety and welfare of the
City, or to protect the City's interest with regard to the Completion Funds, the
City shall provide the Developer thirty (30) days written notice of its intent
to take any action under this paragraph during which thirty-day period the
Developer may cure the breach described in the notice and prevent further action
by the City.
5. Observation. The City shall have the right to make reasonable
engineering observations at the Developer's expense as the City may request.
Observation, acquiescence in, or approval by any engineering inspector of any
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portion of the Excavation Project at any particular time shall not constitute
the approval by the City of the Excavation Project.
6. Completion of the Excavation Project. The Excavation Project shall be
deemed completed at the time and as set forth in City of Black Hawk Municipal
Code ss. 18-254, and if and when completed, the Completion Funds shall be
disbursed in accordance with Paragraph 3 of this Agreement, pursuant to further
instructions to the Escrow Agreement as set forth in the Escrow Agreement.
7. Indemnification. The Developer shall indemnify and hold harmless the
City, its officers, employees, agents or servants from any and all suits,
actions, and claims of every nature and description caused by, arising from, or
on account of any act or omission of the Developer, or of any other person or
entity for whose act or omission the Developer is liable, with respect to the
Excavation Project; and the Developer shall pay any and all judgments rendered
against the City as the result of any suit, action, or claim, together with all
reasonable expenses and attorneys fees incurred by the City in defending any
such suit, action or claim.
8. Waiver of Defects. In executing this Agreement the Developer waives all
objections it may have concerning defects, if any, in the formalities whereby it
is executed, or concerning the power of the City to impose conditions on the
Developer as set forth herein, and concerning the procedure, substance, and form
of the ordinances or resolutions adopting this Agreement.
9. Modifications. This Agreement shall not be amended except by subsequent
written agreement of the parties.
10. Release of Liability. It is expressly understood that the City cannot
be legally bound by the representations of any of its officers or agents or
their designees except in accordance with the City of Black Hawk Municipal Code
and the laws of the State of Colorado.
11. Captions. The captions to this Agreement are inserted only for the
purpose of convenient reference and in no way define, limit, or prescribe the
scope or intent of this Agreement or any part thereof.
12. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors, and
assigns as the case may be.
13. Invalid Provision. If any provision of this Agreement shall be
determined to be void by any court of competent jurisdiction, then such
determination shall not affect any other provision hereof, and all of the other
provisions shall remain in full force and effect. It is the intention of the
parties hereto that if any provision of this Agreement is capable of two
constructions, one of which would render the provision void and the other which
would render the provision valid, then the provision shall have the meaning
which renders it valid.
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14. Governing Law. The laws of the State of Colorado shall govern the
validity, performance and enforcement of this Agreement. Should either party
institute legal suit or action for enforcement of any obligation contained
herein, it is agreed that venue of such suit or action shall be in Xxxxxx
County, Colorado.
15. Attorney Fees. Should this Agreement become the subject of litigation
to resolve a claim of default of performance by the Developer and a court of
competent jurisdiction determines that the Developer was in default in the
performance of the Agreement, the Developer shall pay the City's attorney fees,
expenses, and court costs.
16. Notice. All notice required under this Agreement shall be in writing
and shall be hand-delivered or sent by registered or certified mail, return
receipt requested, postage prepaid, to the addresses of the parties herein set
forth. All notices so given shall be considered effective seventy-two (72) hours
after deposit in the United States mail with the proper address as set forth
below. Either party by notice so given may change the address to which future
notices shall be sent.
Notice to the City: Development Coordinator
City of Black Hawk
X.X. Xxx 00
Xxxxx Xxxx, Xxxxxxxx 00000
With copy to: Xxxxx X. Xxxxxxx
Black Hawk City Attorney
Xxxxx, Xxxxxxxx & Xxxxxxx, P.C.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Notice to Developer: Xxxxxx X. Xxxxxxxxxx, Esq.
Windsor Woodmont Black Hawk Resort Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
With copy to: Xxxxx X. Xxxxxxxxx
Xxxxxx, Xxxxxxxxx & Xxxx, P.C.
0000 Xxxx Xxxx. #000
Xxxxxx, XX 00000
17. Approvals. Whenever approval or acceptance of the City is necessary
pursuant to any provision of this Agreement, the City shall act reasonably and
in a timely manner in responding to such request for approval or acceptance.
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18. Assignment or Assignments. There shall be no transfer or assignment of
any of the rights or obligations of the Developer under this Agreement without
the prior written approval of the City. The Developer agrees to provide the City
with at least fourteen (14) days advance written notice of the transfer or
assignment of any of the rights and obligations of the Developer under this
Agreement.
19. Recording of Agreement. This Agreement shall be recorded in the real
estate records of Xxxxxx County and shall be a covenant running with the
Property in order to put prospective purchasers or other interested parties on
notice as to the terms and provisions hereof.
20. Title and Authority. The Developer expressly warrants and represents to
the City that it is the record owner of the property constituting the Property
and further represents and warrants, together with the undersigned
individual(s), that the undersigned individual(s) has or have full power and
authority to enter into this Site Improvement Agreement. The Developer and the
undersigned individual(s) understand that the City is relying on such
representations and warranties in entering into this Agreement.
WHEREFORE, the parties hereto have executed this Agreement on the day and
year first above-written.
CITY OF BLACK HAWK, COLORADO
By:
--------------------------------
Xxxxxxx X. Xxxxxx, Mayor
ATTEST:
-----------------------------------
Xxxxxxx X. Xxxxx, CMC
City Clerk
APPROVED AS TO FORM:
-----------------------------------
Xxxxx X. Xxxxxxx, City Attorney
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WINDSOR WOODMONT BLACK HAWK
RESORT CORP.
By:_______________________________
Name:_____________________________
Title:____________________________
STATE OF COLORADO )
) ss.
COUNTY OF _________________ )
The foregoing instrument was subscribed, sworn to, and acknowledged
before me this _______ day of _______________________, 20__, by
________________________________ as the _______________________________ of
Windsor Woodmont Black Hawk Resort Corp.
My commission expires: __________________________
(S E A L)
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Notary Public
