HomeMy WebLinkAboutcoa.lu.pu.Aspen Mtn Lodge Savanah Limited.1991•
130
As
VIA FEDERAL EXPRESS
September 16, 1992
a
9
David L. Packer
Sidley & Austin
2049 Century Park East
Los Angeles, California 90067
Re: Ritz Demo Letter of Credit
Dear David:
en
reet
611
Enclosed per our conversation this day are:
Two executed originals of the Termination Of Security
Agreement.
One original of the letter signed by me addressed to
Citibank New York, et al.
- One copy of letter to Central Bank re: termination of
escrow (this was faxed to Ms. Hedin this day).
I trust you will mail the letter to Citibank.. I have retained a
copy.
I think this takes care of everything. Thank you for your
assistance.
Very truly yours,
Edward M. Caswall
City Attorney
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cc: Robert W. Hughes, Esq..
�H CEO Pv
.E'C ✓ClEO <�vER
TERMINATION OF SECURITY AGREEMENT
j
THIS TERMINATION OF SECURITY AGREEMENT (the
"Agreement ") is entered into as of August 24, 1992, by SAVANAH
LIMITED PARTNERSHIP, a District of Columbia limited partnership
( "Savanah "), and the CITY OF ASPEN, COLORADO (the "City ").
RECITALS
This Agreement is entered into with respect to the
following facts: n
A. The City and Savanah have entered into that
certain Security Agreement dated as of August 28, 1991, as
amended by that certain First Amendment to Security Agreement
dated as of August 30, 1991 (as amended, the "Security
Agreement "). The Security Agreement creates a security interest
in a letter of credit in the amount of Four Million Dollars
($4,000,000) naming the City as beneficiary (the "Letter of
Credit ").
B. The City, Savanah and Central Bank, N.A., a
national banking association ( "Escrow Agent "), have entered into
that certain Escrow Agreement dated as of August 28, 1991, as
supplemented by that certain Supplement to Escrow Agreement dated
as of August 30, 1991 (as supplemented, the "Escrow Agreement").``
Pursuant to the terms and conditions of the Escrow Agreement,
Savanah deposited with Escrow Agent the Letter of Credit.
C. The City and Savanah have agreed that the Security
Agreement is terminated and that the Letter of Credit should be
cancelled and returned to Savanah. This Agreement implements the
terms of that agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the above recitals
and for other consideration, the sufficiency and adequacy of
which are hereby acknowledged, the parties hereto agree as
follows:
1. Savanah and the City hereby confirm and agree that
(a) the Security Agreement is terminated, and (b) that the City
no longer has a security interest or any other rights in the
Letter of Credit.
c
2. The City will execute such documents and take such
other action as is requested by Savanah to terminate the escrow
created by the Escrow Agreement, cause the Escrow Agent to
deliver the Letter of Credit to Savanah, and to cancel the Letter
of Credit.
IN WITNESS WHEREOF, Savanah and the City have caused
this Agreement to be executed by their authorized representatives
as of the date set forth above.
" Savanah"
SAVANAH LIMITED PARTNERSHIP,
a District of Columbia limited
partnership
By: ASPEN ENTERPRISES INTERNATIONAL,
INC., a Colorado corporation,
General Partner
By: G
r
Name: A /,
Title: ► T
DXP92B89.SEL (9/3/92 3:26pm)
"City"
CITY OF ASPEN, COLORADO
By:
-2-
Name: John S. Bennett
Title: Mayor
e
PR�NiED ON
RECrCtEDVAPER
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130 6 treet
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September 16, 1992
Citibank New York
111 Wall Street
New York, New York 10043
Saudi American Bank Riyadh
P.O. Box 833
Riyadh 11421
Saudi Arabia
Savanah Limited Partnership
600 East Cooper Avenue
Suite 200
Aspen, Colorado 81611
Re: Letter of Credit in the Amount of $4,000,000
Citibank Reference No. 40052204
Opener's Reference No. 1000820396
Ladies and Gentlemen:
This letter confirms that the City of Aspen, which was.the
beneficiary under the Letter of Credit described above, no longer
has any rights under such Letter of Credit and hereby acknow-
ledges and agrees that the Letter of Credit is cancelled.
Very truly yours,
Edward M. Caswall
City Attorney
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s
September 3, 1992
Via Federal Express
Central Bank, N.A.
1515 Arapaho Street
Denver, Colorado 80202
Attention: Ms. Kiki Deane
Re: Escrow Relating to Savanah Limited Partnership
Ladies and Gentlemen:
Central Bank, N.A., is acting as escrow agent for the
City of Aspen, Colorado and Savanah Limited Partnership, a
District of Columbia limited partnership, pursuant to the terms
of that certain Escrow Agreement dated as of August 28, 1991, as
supplemented by that certain Supplement to Escrow Agreement dated
as of August 30, 1991.
You are hereby informed that the escrow is terminated
and that the Letter of Credit in the amount of $4,000,000 being
held by you should be delivered via overnight courier to the
following address: Sidley & Austin, 2049 Century Park East,
Suite 3900, Los Angeles, California 90067, Attention: David L.
Packer, Esq.
Thank you for your cooperation. If you have any
questions, you may call David L. Packer, Esq., the attorney for
Savanah Limited Partnership, at (310) 556 -6567, or you may call
/ms,eptember Kiki Deane
3, 1992
Page 2
Edward M. Caswall, Esq., the City Attorney for the City of Aspen,
Colorado, at (303) 920 -5055.
Very truly yours,
SAVANAH LIMITED PARTNERSHIP,
a District of Columbia limited
partnership
By: ASPEN ENTERPRISES
INTERNATIONAL,, INC., a
Colorado corporation,
General Partner
By: �
Name: f z / t �
Title: �<
CITY OF ASPEN, COLORADO
5-
By.
Name: John S. Bennett
Title: Mayor
DXP92B90_SEL (9/3/92 3:16pm)
-2-
ORDINANCE NO._
(Series of 1992)
v
AN ORDINANCE RATIFYING AND APPROVING A SECTION M AMENDMENT TO THE
FIRST AMENDED AND RESTATED PLANNED UNIT DEVELOPMENT /SUBDIVISION
AGREEMENT FOR THE ASPEN MOUNTAIN SUBDIVISION.
WHEREAS, on May 21, 1992, Savanah Limited Partnership
( "Savanah ") submitted a written petition to the City Council.
pursuant to Section M of the First Amended and Restated Planned
Unit Development /Subdivision Agreement ("PUD Agreement ") for the
Aspen Mountain Subdivision seeking an extension in the construc-
tion schedule governing construction and development of the
previously mandated community ice rink /park on Lot 6 of the Aspen
Mountain Subdivision; and
WHEREAS, a hearing was conducted before City Council on July
8, 1992, during which Savanah successfully demonstrated that the
reasons necessitating extension in the subject construction
schedule were beyond its control; and
WHEREAS, Section M of the PUD agreement authorizes amend-
ments to construction schedule deadlines under circumstances as
demonstrated by Savanah.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO, THAT:
Section 1
The following amendment to the First Amended and Restated-..
Planned Unit Development /Subdivision Agreement for the Aspen
Mountain Subdivision, as amended, is hereby ratified and ap-
proved:
•
•
Savanah's construction schedule deadlines as set forth in
Section A2 of the PUD agreement, and as previously amended by
those Section M amendments executed'on June 11, 1990 (recorded in
Book 627 at Page 457 in the records of the Pitkin County Record-
er) and June 10, 1991 (recorded in Book 654 at Page 418 in the
records of the Pitkin County Recorder) are amended to provide as
follows:
From To
Certificate of Occupancy
Ice Rink /Park 10/1/92 10/1/93
Section 2
The amendment as provided for herein is subject to all the
terms and conditions as set forth in that written decision issued
by City Council pursuant to Savanah's petition dated May 21,
1992, requesting the extension in the above - described construc-
tion schedule deadline, a copy_of which is attached hereto as
Exhibit 1.
Section 3
The amendment as provided for herein is to be reflected in a
written amendment document attached hereto as Exhibit 2 which
shall be executed and filed in the records of the Pitkin County
Clerk and Recorder's Office.
Section 4
This ordinance shall not have any effect on existing litiga-
tion and shall not operate as an abatement of any action or
2
proceeding now pending under or by virtue of the ordinances
repealed or amended as herein provided, and the same shall be
construed and concluded under such prior ordinances.
Section 5
If any section, subsection, sentence, clause, phrase or
portion of this ordinance is for any reason held invalid or
unconstitutional in a court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent
provision and shall not affect the validity of the remaining
portions thereof.
Section 6
A public hearing on the ordinance shall be held on the
day of 1992, in the City Council
Chambers, Aspe City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by
the City Council of the City of Aspen on the 104`t-� day of
1992.
John Bennett, Mayor
ATTEST:
Kathryn Koch, City Clerk
9
J
v
F LLY adopted, passed and approved this /ou'C, day of
1992.
John Sf. Bennett, Mayor
ATTEST:
Kathryn ..Sell, Koch, City Clerk
jc62.2
4
BEFORE THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO
IN RE THE MATTER OF SAVANAH LIMITED PARTNERSHIP'S REQUEST FOR A
SECTION M AMENDMENT TO THE FIRST AMENDED AND.RESTATED PLANNED
UNIT DEVELOPMENT /SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAIN
SUBDIVISION
This matter is before the City Council upon the petition of
Savanah Limited Partnership ( "Savanah ") pursuant to Section M of
the First Amended and Restated Planned Unit Development/Sub-
division Agreement for the Aspen Mountain Subdivision ( "PUD
Agreement "), seeking a certain extension in the construction
scheduling for subdivision development. Pursuant to Savanah's
petition, a public hearing was convened in accordance with
Section M of the PUD Agreement and conducted pursuant to City
Council's hearing procedures. Savanah appeared, with legal
counsel, and produced testimony and other evidence in support of
its petition. Having heard all of the offered testimony and
argument and having reviewed the documentary evidence as submit-
ted and made part of the record herein, the City Council finds as
follows:
1. On May 21, 1992, Savanah submitted a written petition
to the City pursuant to Section M of the PUD Agreement'seeking an
extension in the present construction schedule deadline governing
construction, and development of Lot 6, the proposed Ice Rink and
Park, within the Aspen Mountain Subdivision.
2. Section M of the PUD Agreement provides as follows in
its relevant part as.pertinent hereto:
"... the Owner or its successors or assigns may, on its
own initiative, petition the City Council for a vari-
ance, an amendment to this Agreement, or an extension
of one or more of the time periods required for perfor-
mance under the Construction Schedules or otherwise.
The City Council may grant such variances, amendments
to this Agreement, or extensions of time as it may deem
appropriate under the circumstances. The parties ex-
pressly acknowledge and agree that the City Council
shall not unreasonably refuse to extend the time peri-
ods for performance indicated in one or more of the
Construction Schedules if Owner demonstrates by a
preponderance of the evidence that the reasons for the
delay(s) which necessitate such extension(s) are beyond
0 0
the control of Owner, despite good faith efforts on its
part to perform in a timely manner."
3. Savanah seeks extensions in the current construction
schedule deadlines as follows:
From To
Certificate of Occupancy
Ice Rink /Park 10/1/92 10/1/93
4. Savanah has alleged that the following facts and /or
circumstances have caused delays in the progress of the construc-
tion of the Ice Rink /Park component and that such facts and
circumstances were beyond its control:
i. The David Koch Foundation of Wichita, Kansas, by
and through its authorized representatives, has offered to build
an ice rink on or near Wagner Park in the City of Aspen. A
Schematic Design Package for the proposed Wagner Park Ice Rink
presented to City Council on May 11, 1992, describes an ice rink
capable of being used primarily for recreational skating with
potential for ice shows, limited hockey use and skating instruc-
tion.
ii. The City Council, Savanah and the David Koch
Foundation require additional time to evaluate the Wagner Park
Ice Rink proposals and designs in conjunction with the Ice
Rink /Park component of the Aspen Mountain Subdivision PUD Agree-
ment to determine which ice rink and location would be in the
best interest of the City of Aspen.
iii. Because of delays in the planning and review
process of Savanah's ice rink /park proposal precipitated by the
Koch Proposal, should City Council determine that it is in the
City's best interests to proceed with the ice rink /park proposal
of Savanah on Lot 6 of the Aspen Mountain Subdivision, Savanah
will be unable to complete the ice rink /park by October 1, 1992,
the date therefor established in the Amendment to the PUD Agree-
ment dated June 10, 1991. While delays in the planning process
occasioned by the intervention of the Koch Proposal may have only
been a few months, construction constraints, particularly the
pouring of a large slab of concrete for the ice rink, necessitate
a full one -year extension of the deadline.
5. City Council finds that Savanah has been able to
demonstrate by a preponderance of the testimony and evidence as
established in the record that the time required by City Council,
Savanah and the David Koch Foundation to evaluate the best site
2
.7
proposal for an.ice rink has caused unavoidable delays in the
progress of construction for Lot 6 of the Aspen Mountain Subdivi-
sion that are beyond the control of Savanah despite its good
faith efforts to perform.
NOW, THEREFORE, BASED UPON THE ABOVE AND FOREGOING, City
Council does hereby grant to Savanah Limited Partnership the
following extension to the construction schedule deadlines for
the Aspen Mountain Subdivision, which extension shall be incorpo-
rated into a written amendment to the PUD Agreement pursuant to
Sections M and 0(6), subject to those terms and conditions as set
forth below:
EXTENSION
From To
1. Certificate of Occupancy
Ice Rink /Park 10/1/92 10/1/93
CONDITIONS
1. Prior to issuance of a Certificate of Occupancy for
Hotel Phase I, and as a condition precedent thereto, Savanah
shall deposit $700,000.00 in an escrow fund for the benefit and
in the name of the City of Aspen to secure Savanah's performance
in regard to the following:
(1). The establishment of a permanent fund'to defray
operation and maintenance costs for the Wagner
Park Ice Rink in the event the City should deter-
mine to authorize such ice rink; or
(2) Construction by Savanah of an ice rink /park as
approved by the Aspen City Council and as required
by the PUD Agreement on Lot 6 of the Aspen Moun-
tain Subdivision. In such event, Savanah may be
permitted to periodically draw down or reduce the
escrow amount upon the authorization of�the Direc-
tor of Public Works and Planning Director corre-
sponding with the progress toward the successful
completion of the ice rink /park.
All documents establishing the escrow and the escrow
instructions shall be in a form satisfactory to the City Attor-
ney.
2. Prior to issuance of a Certificate of Occupancy for the
Hotel Phase I, and as a condition precedent thereto, Savanah
shall clean and improve Lot 6 by removing all construction
3
materials, equipment, debris and fencing therefrom, regrade the
lot as necessary to allow pedestrian traffic, and aesthetically
improve the site as reasonably required by the Public Works
Director and Planning Director.
3. In the event that City Council grants development
approval to the David Koch Foundation for development of the
Wagner Park Ice Rink, Savanah shall thereafter seek all requisite
amendments to the PUD Agreement, final PUD development plan, and
other applicable development approvals within a reasonable time
period in order to construct and maintain a municipal park on Lot
6 of the Aspen Mountain Subdivision.
4. The effectiveness of the.extension as granted herein
shall be contingent upon Savanah's compliance, as determined by
the City staff, with all of those conditions as set forth above.
In the event that any condition as set forth above is not sub-
stantially complied with, then the extension granted herein shall
automatically be rendered invalid and such failure(s) to comply
shall constitute non - compliance with the First Amended and
Restated PUD /Subdivision Agreement. Savanah shall thereafter be
entitled to a hearing before City Council to determine sanctions
or penalties for its non - compliance, which may include the
revocation or termination of any or all approvals contained in
the PUD Agreement.
Done this day of 1992.
ATTEST:
zer 4
jc62.3
CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO
By:
John S.1 Bennett, Mayor
4
offieff
SAUDI AMERICAN BANV,,-,RIYADH
CITIBANK NA. NEW YukK
' -�E-AMEND OUR CREDIT NO.1000820396 YOUR REF 40052204
FAVOURING CITY OF ASPEN, AS FOLLOWS
AS AN ALTERNATIVE TO THE CERTIFICATE REQUIRED UNDER Tl-]E,L/C
JHE BENEFICIARY MAY PROVIDE A CERTIFICATE STATING THE FOLLOWING
:
11 SAVANNAH HAS NOT PROVIDED A RENEWAL OR A PLACEMENT OF THE
LETTER ' OF CREDIT WITHIN 30 (THIRTY) DAYS.PRIOR TO THE ION
OF THE ORIGINAL LETTER OF CREDIT ' OR SUCH OTHER NE AS HAS
BEEN AGREED TO BY ITS 'nc CITY IN �/nEAuumABLE DISCRETION GIVEN .
THE STATUS OF THE CONSTRUCTION OF THE HOTEL. "
ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.
THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1983 REVISION) I.C.C.BROCHURE 400. `
NO MAIL CONFIRMATION WILL FOLLOW. '
REGARDS - ISMAIL / LC DEPT '
U '
1181220 RY
�r"-01181218 LN
r
FIRST AMENDMENT TO SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECURITY AGREEMENT (the "Amendment ")
is entered into as of the 30th day of August, 1991 by SAVANAH
LIMITED PARTNERSHIP, a District of Columbia Limited Partnership
,( "Savanah "), and the CITY OF ASPEN, COLORADO (the "City "), with
reference to the following facts:
A. Savanah and the City have entered into that certain
Security Agreement dated as of August 28, 1991 (the "Security
Agreement ").
B. Pursuant to the terms of the Security Agreement, Savanah
has caused to be delivered to Central Bank, N.A., a national
banking association ( "Escrow Agent "), a Letter of Credit in the
amount of Four Million Dollars ($4,000,000) naming the City as
beneficiary (the "Letter of Credit ").
C. The parties intend to modify the terms of the Security
Agreement relating to the Letter of Credit on the terms and
conditions contained herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Savanah agrees to provide to Escrow Agent a renewal to,
or replacement of, the Letter of Credit (the "New Letter of
Credit ") no later than thirty (30) days prior to the expiration
of the original Letter of Credit or such other deadline as is
agreed.to by the City in its reasonable discretion given the
status of construction of the "Hotel" (as defined in the Security
Agreement) unless pursuant to Section 4 of the Security
Agreement, Escrow Agent has already caused a release of the
Letter of Credit. The New Letter of Credit shall (a) be in an
amount no less than the amount of the original Letter of Credit
or such lesser amount as is agreed to by the City; (b) be in the
same form and issued by the same financial institution as the
original Letter of Credit or such other financial institution as
is agreed to by the City; and (c) be for a term of not less than
one (1) year or such earlier term as is agreed to by the City in
its reasonable discretion given the status of the construction of
the Hotel.
2. In the event that Savanah fails to deliver the New
Letter of Credit on or before the date required, the Letter of
Credit shall be released to the City.
3. If the Letter of Credit is released to the City
pursuant to Section 2 of this Amendment, the City may thereafter
draw upon the Letter of Credit. The City shall immediately
deposit any funds so drawn with Escrow Agent (the "Funds "), and
the Funds shall be deposited in an interest bearing account or
H.. accounts with Escrow Agent (or with one of the ten (10) largest
banks in the United States or any such other financial
institution or institutions as is agreed to by the City in its
reasonable discretion) as directed by Savanah. Any interest on
the Funds shall be the property of Savanah, and such interest
shall neither be part of the Collateral nor be security for the
obligations of Savanah to the City. The interest on the Funds
shall be immediately forwarded to Savanah by Escrow Agent upon
written request therefor.
4. Upon deposit of the Funds with Escrow Agent, the Funds
shall be deemed to be "Collateral" under and as defined in the
Security Agreement and shall be released only pursuant to the
provisions of Section 4 of the Security Agreement.
5. Except as amended hereby, all other provisions of the
Security Agreement shall remain unchanged and shall continue in
full force and effect.
6. This Amendment may be executed in counterparts, each of
which shall be deemed an original, but all of which together
shall constitute on and the same instrument.
IN WITNESS WHEREOF, Savanah and the City have caused the
execution of this Amendment by their authorized representatives
as of the date set forth above.
"SAVANAH"
SAVANAH LIMITED PARTNERSHIP
a District of Columbia limited partnership
By: ASPEN ENTERPRISES INTERNATIONAL, INC.
a Colorado corporation
General Partner
By: ��-
Charles E. W llace
Vice President and
Assistant Secretary
"CITY"
CITY OF ASPEN, COLORADO
By:
Name. John S. Bennett
Title: Mayor
M: \dxp \DXP91A98.SEL (11/4/91 4:59pm)
c
•
0
SUPPLEMENT TO ESCROW AGREEMENT
THIS SUPPLEMENT TO. ESCROW AGREEMENT (the "Supplement ") is
entered into as of the 30th day of August, 1991 by SAVANAH
LIMITED PARTNERSHIP, a District of Columbia Limited Partnership
( "Savanah "), the CITY OF ASPEN, COLORADO (the "City "), and
CENTRAL BANK, N.A., a national banking association ( "Escrow
Agent "), with reference to the following facts:
A. Savanah, the City and Escrow Agent have entered into that
certain Escrow Agreement dated as of August 28, 1991 (the "Escrow
Agreement ").
B. Pursuant to the terms of the Escrow Agreement, Savanah
has caused to be delivered to Escrow Agent a Letter of Credit in
the amount of Four Million Dollars ($4,000,000) naming the City
as beneficiary (the "Letter of Credit ").
C. The parties intend to modify the terms of the Escrow
Agreement relating to the Letter of Credit on the terms and
conditions contained herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Savanah agrees to provide to Escrow Agent a renewal to,
or replacement of, the Letter of Credit (the "New Letter of
Credit ") no later than thirty (30) days prior to the expiration
of the original Letter of Credit or such other deadline as is
agreed to by the City in its reasonable discretion given the
status of construction of the "Hotel" (as defined in the Escrow
Agreement) unless pursuant to Section 2 of the Escrow Agreement,
Escrow Agent has already caused a release of the Letter.of
Credit. The New Letter of Credit shall (a) be in an amount no
less than the amount of the original Letter of Credit or such
lesser amount as is agreed to by the City; (b) be in the same
form and issued by the same financial institution as the original
Letter of Credit or such other financial institution as is agreed
to by the City; and (c) be for a term of not less than one (1)
year or such earlier term as is agreed to by the City in its
reasonable discretion given the status of the construction of the
Hotel.
2. In the event that Savanah fails to deliver the New
Letter of Credit on or before the date required, Escrow Agent
shall immediately cause the Letter of Credit to be released to
the City.
3. 'If the Letter of Credit is released to the City
pursuant to Section 2 of this Supplement, the City may thereafter
draw upon the Letter of Credit. The City shall immediately
deposit any funds so drawn with Escrow Agent (the "Funds "), and
the Funds shall be deposited in an interest bearing account or
accounts with Escrow Agent (or with one of the ten (10) largest
banks in the United States or any such other financial
institution or institutions as is agreed by the City in its
reasonable discretion) as directed by Savanah. Any interest on
the Funds shall be the property of Savanah, shall not be security
for the obligations of Savanah to the City, and shall be
immediately forwarded to Savanah by Escrow Agent upon written
request therefor.
4. Upon deposit of the Funds with Escrow Agent, the Funds
shall be deemed to be "Collateral" under and as defined in the
Escrow Agreement and shall be released only pursuant to the
provisions of Section 2 of the Escrow Agreement.
5. Except as amended hereby, all other provisions of the
Escrow Agreement shall remain unchanged and shall continue in
full force and effect.
-2-
• !
6. This Supplement may be executed in counterparts, each
of which shall be deemed an original, but all of which together
shall constitute on and the same instrument.
IN WITNESS WHEREOF, Savanah, the City and Escrow Agent have
caused the execution of this Supplement by their authorized
representatives as of the date set forth above.
"ESCROW AGENT"
CENTRAL BANK, N.A.
a national banking association
By: '` Id "11
Name: �. .A s
Title: rrUr10M1 b-r CIIL--
"SAVANAH"
SAVANAH LIMITED PARTNERSHIP
a District of Columbia limited partnership
j By: ASPEN ENTERPRISES INTERNATIONAL, INC.
a Colorado corporation
t f...
General Partner
c. a
By: L%Ie&
Charles E. Wallace
Vice President and
Assistant Secretary
"CITY"
CITY OF ASPEN, COLORADO
B Y:
Name: John S. Bennett
Title: Mayor
M:\DXP\DXP91A61.se1 (11/4/91 4:42pm)
1515 Arapahoe Street
Denver, CO 80202
303 893 -3456
September 4, 1991
•
SEP 9 1991
',
OFFict
City of Aspen
Attn: Edward Caswall
130 South Galena Street
Aspen, Colorado 81611
Re: Escrow Agreement
Dear Mr. Caswall:
Enclosed is the fully executed agreement for Savanah Limited
Partnership /City of Aspen Escrow. The account number
assignment is 90643800. Monthly statements will be provided
showing the letter of credit funded into the account today
and continuing to show as an asset in the account.
If you should have any questions, please call at your
convenience.
Sincerely,
Kiki Deane
Institutional Trust Officer
KD /kk
Enclosure
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement ") is entered into
as of August 28, 1991, by SAVANAH LIMITED PARTNERSHIP, a District
of Columbia limited partnership ( "Savanah "), the CITY OF ASPEN,
COLORADO (the "City "), and CENTRAL BANK, N.A., a national banking
association as ( "Escrow Agent "), with reference to the following
facts:
A. The City and Savanah have entered into that certain
First Amended and Restated Planned Unit Development /Subdivision
Agreement for the Aspen Mountain Subdivision dated as of
October 3, 1988 as amended by that certain Section M Amendment
dated June 11, 1990 (the "PUD Agreement ").
B. On March 15, 1991, Savanah submitted a written petition
to the City pursuant to Section M of the PUD Agreement seeking an
extension in construction schedule deadlines governing construc-
tion and development.
C. Hearings were conducted before the City Council on
April 17, May 21, and May 29, 1991, during which Savanah success-
fully demonstrated that the reasons necessitating extensions in
the existing construction schedules deadlines were beyond its
control. As a consequence, the City and Savanah entered into
that certain Amendment to the First Amended and Restated Planned
Unit Development /Subdivision Agreement for the Aspen Mountain
Subdivision dated as of June 10, 1991 (the "PUD Amendment "). The
PUD Agreement as amended by the PUD Amendment is referred to
hereinafter as the "PUD".
D. Paragraph 14 of Exhibit 1 of the PUD Amendment
provided, as a condition to the extensions in construction
schedule deadlines, that Savanah and the City would reach an
agreement whereby Savanah would provide financial assurance to
secure its obligations under the PUD for the demolition of the
Ritz - Carlton Hotel under construction in Aspen, Colorado by
Savanah (the "Hotel ") in the event the Hotel was not completed in
accordance with the terms of the PUD. A Memorandum of Agreement
(the "Memorandum ") was executed by the City Attorney of the City
and the attorneys for Savanah to satisfy this requirement.
E. Savanah has obtained a letter of credit issued in the
name of the City, in the amount of Four Million Dollars
($4,000,000) (the "Collateral ") confirmed or issued by Citibank.
Savanah has granted the City a security interest in the
Collateral pursuant to, and on the conditions contained in, that
certain Security Agreement dated as of August 21, 1991 (the
"Security Agreement "), a copy of which is attached hereto as
Exhibit A. This Agreement and the Security Agreement implement
the terms of the'Memorandum.
NOW, THEREFORE, the parties hereto agree as follows:
1. Delivery. Savannah shall deliver any instruments,
documents, certificates or other evidence of the Collateral -and
the assignment thereof for security purposes to Escrow Agent.
2. Release of Collateral.
2.1 Escrow Agent shall cause the Collateral to be
released to the City only upon (a) the occurrence of an "Event of
Default" (as defined in Section 5 of the-Security Agreement)
evidenced in writing by City of Aspen of the default, and (b) a
written demand for release by the City to Escrow Agent.
2.2 Escrow Agent shall cause the Collateral to be
released to Savanah only upon (a) the satisfaction of all
conditions contained in Section 6 of the Security Agreement
evidenced in writing by Savanah and the City of the satisfaction,
and (b) a written demand for release by Savanah to Escrow Agent.
2.3 Prior to causing a release of the Collateral,
Escrow Agent shall provide both the City and Savanah with at
least five (5) business days' prior written notice of its intent.
3. Escrow Agent Fees. Except as otherwise provided
in this Agreement, any fees of Escrow Agent shall be paid by
Savanah, and City shall have no responsibility therefore. Escrow
Agent agrees that its fees shall be as follows: (a) inception set
up fee - $1,000; and (b) $1,000 annual minimum fee for any full
year or partial year. The first year's fee shall be payable upon
execution of this Agreement, and the annual fee thereafter shall
be payable on each anniversary date until termination of the
Agreement or replacement of the Escrow Agent.
4. Replacement of Escrow.
4.1 Escrow Agent may resign and be discharged of
the obligations created by this Agreement by delivering to
Savanah and the City written notice of its resignation as Escrow
Agent. Upon receiving such notice of resignation, Savanah and
the City shall endeavor to appoint a successor Escrow Agent. Any
resignation of Escrow Agent shall become effective upon
acceptance of appointment by the successor Escrow Agent, and if a
substitute Escrow Agent is not appointed hereunder within thirty
(30) days, escrow Agent may petition a court of competent
jurisdiction to make such an appointment.
4.2. If Escrow Agent shall be removed by the
mutual consent of Savanah and the City, or is dissolved, or if
its property or affairs shall be taken under the control of any
state or federal court or administrative body or agency because
of insolvency or bankruptcy or for any other reason, a vacancy
shall forthwith exist in the office of Escrow Agent, and within a
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• 0
period of thirty (30) days thereafter, a successor shall be
appointed by Savanah and the City,.and if a substitute Escrow
Agent is not appointed hereunder within thirty (30) days, Escrow
Agent may petition a court of competent jurisdiction to make such
an appointment.
4.3 Appointments made under this Section 4 shall
be made by an instrument or instruments in writing. Copies of
each instrument shall be delivered by Savanah and the City to the
predecessor Escrow Agent and to the successor Escrow Agent so
appointed.
4.4 Any successor Escrow Agent shall execute,
acknowledge and deliver to Savanah and City an instrument
accepting such appointment hereunder, and thereupon such
successor Escrow Agent, without any further act, deed or
conveyance, shall become duly vested with all of the property,
rights, powers, trusts, duties and obligations of its predecessor
hereunder, with the same effect as if originally named Escrow
Agent and shall be bound by all obligations of the original
Escrow Agent. Upon request of such successor Escrow Agent,
Savanah and City shall execute and deliver an instrument trans-
ferring to such successor Escrow Agent all the property, rights,
powers and trusts of the Escrow Agent so ceasing to act here-
under, and the Escrow Agent so ceasing to act shall pay over or
deliver to the successor Escrow Agent the items delivered
pursuant'to Section 1 hereof and all monies, records and other
assets then held by it hereunder.
5. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Colorado, and any dispute or action between the parties arising
from the interpretation or implementation of this Agreement shall
only be brought in any federal, state or local courts in the
State of Colorado, and the parties agree and do hereby submit
themselves to jurisdiction of said courts.
6. No Third Party Rights. The City, Escrow Agent and
Savanah agree that no party other than them shall have or acquire
any rights or interest under this Agreement, the Collateral or
any funds drawn from the Collateral, whether as a third party
beneficiary hereof or otherwise; provided, however, that Savanah,
with the written consent of the City, which consent shall not be
unreasonably withheld or delayed, may assign or transfer its
rights (whether voluntarily or by operation of law) under the
Security Agreement, under this Agreement and in the Collateral
but Savanah's assignee shall be bound by the terms of this
Agreement and the Security Agreement. Notwithstanding the
foregoing, the consent of the City shall not be required for a
transfer by Savanah of any of its rights (whether voluntarily or
by operation of law) to Aspen Enterprises, International, Inc.
-3-
7. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement.
8. Instructions. Escrow Agent shall be bound only by
the foregoing written instructions, and such further written
instructions as the parties hereto, under the conditions herein
imposed, from time to time deliver to Escrow Agent.
Notwithstanding anything to the contrary contained in these
instructions, Escrow Agent shall have no duty to determine the
performance or nonperformance of the City or Savanah under any
term or condition of any contract or agreement between the
parties to these instructions.
9. Disputes. If Escrow Agent shall become involved
in litigation, including interpleader brought by it, as a result
of adverse claims or demands being made upon Escrow Agent by the
City or Savanah, the City and Savanah agree that they shall each
be liable to Escrow Agent for one -half of all costs, expenses and
reasonable attorneys' fees incurred by Escrow Agent in connection
with such litigation or any appeal therefrom.
10. Section Headings. Section headings in this
Agreement are included for convenience only and neither
constitute a part of this Agreement for any other purpose nor may
be used to construe it.
11. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given when personally delivered, or if mailed,
on the date three (3) business days after mailing by United
States certified or registered mail, postage prepaid, return
receipt requested, to the parties at the following addresses
(until such addresses are changed by notice pursuant to these
notice provisions):
"Savanah"
Savanah Limited Partnership
c/o Newfield Enterprises, International
2049 Century Park East, Suite 3760
Los Angeles, California 90067
Attention: Mr. Omar Benjamin
with copies to:
Sidley & Austin
2049 Century Park East
Suite 3500
Los Angeles, California 90067
Attention: Marc I Hayutin, Esq.
-4-
"Escrow Agent"
Central Bank, N.A.
1515 Arapahoe Street
Denver, Colorado 80202
Attention: Ms. Kiki Deane
"City"
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Attention: Edward M. Caswall, Esq.
City Attorney
12. Termination Date. If the Collateral is not
withdrawn by October 1, 1993 and is not subject to litigation,
this Agreement shall terminate and the Collateral shall be
forwarded to Savanah.
IN WITNESS WHEREOF, Savanah, the City and Escrow Agent
have caused the execution of this Agreement by their authorized
representatives as of the date first set forth above.
"ESCROW AGENT"
CENTRAL BANK, N.A.
a national bank association
By:_
Name: K. A r)P .nm
Title: Institutional Trust Officer
"SAVANAH"
SAVANAH LIMITED PARTNERSHIP
a District of Columbia limited partnership
By: ASPEN ENTERPRISES INTERNATIONAL, INC.
a Colorado corporation
General Partner
Charles E. Wallace
W1 Eg President
[signatures continued on next page]
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0
• •
[signatures continued from previous page]
50XP.WP (8/30/91 1:46pm)
"CITY"
CITY OF ASPEN, COLORADO
BY:
/
Name: Carol O'Dowd
Title: City Manager
Exhibit A
•.j OP:bT T6, OE onu
5DXP.WP (8/30/91 1:46pm)
•
0
[SECURITY AGREEMENT TO BE ATTACHED]
Exhibit A
LJ
SECURITY AGREEMENT
•
THIS SECURITY AGREEMENT (the "Agreement ") is entered
into as of August 21, 1991, by and between SAVANAH LIMITED
PARTNERSHIP, a District of Columbia limited partnership
( "Savanah "), and the CITY OF ASPEN, COLORADO (the "City "),
with reference to the following facts:
A. The City and Savanah have entered into that certain
First Amended and Restated Planned Unit Development /Subdivision
Agreement for the Aspen Mountain Subdivision dated as of
October 3, 1988, as amended by that certain Section M Amendment
dated June 11, 1990 (the "PUD Agreement ").
B. On March 15, 1991, Savanah submitted a written petition
to the City pursuant to Section M of the PUD Agreement seeking an
extension in construction schedule deadlines governing construc-
tion and development.
C. Hearings were conducted before the,City Council on
April 17, May 21, and May 29, 1991, during which Savanah success-
fully demonstrated that the reasons necessitating extensions in
the existing construction schedules deadlines were beyond its
control. As a consequence, the City and Savanah entered into
that certain Amendment to the First Amended and Restated Planned
Unit Development /Subdivision Agreement for the Aspen Mountain
Subdivision dated as of June 10, 1991 (the "PUD Amendment "). The
PUD Agreement as amended by the PUD Amendment is referred to
hereinafter as the "PUD".
D. As a condition to the extended construction schedule
deadlines, paragraph 14 of Exhibit 1 of the PUD Amendment
provided that Savanah was to post a cash bond or similar liquid
financial assurance in an amount not less than $4,000,000 (the
"Collateral ") no later than September 1, 1991. As a further
condition to the extensions in construction schedule deadlines,
paragraph 14 provided that Savanah and the City would reach an
agreement whereby Savanah would provide financial assurance to
secure its obligations under the PUD for the demolition of the
Ritz - Carlton Hotel under construction in Aspen, Colorado by
Savanah (the "Hotel ") in the event the Hotel was not completed in
accordance with the terms of the PUD. A Memorandum of Agreement
(the "Memorandum ") was executed by the City Attorney of the City
and the attorneys for Savanah to satisfy this requirement. This
Agreement implements the terms of the Memorandum.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Security Interest. Savanah hereby grants
to the City a security interest in the "Collateral" (as defined
herein) to enforce any and all rights it may have to require
demolition of the Hotel if the structure is not completed in
accordance with the terms of the PUD.
preceding sentence, all interest on the
the property and be payable to Savanah
of the Collateral nor security for any
the City.
Notwithstanding the
Collateral shall remain
and shall neither be part
obligations of Savanah to
2. Delivery of Collateral. Savanah shall deliver any
instruments, documents, certificates or other evidence of the
Collateral and the'assignment thereof for security.purposes to
either (a) United Bank of Denver, (b) Central Bank and Trust, or
(c) any other financial institution mutually agreeable to the
City and Savanah (the "Escrow "). The Escrow shall be governed by
the terms of escrow instructions (the "Escrow Instructions ") in
form substantially as provided on EXHIBIT A hereto. The Escrow
Instructions shall be supplemented or modified to the extent
reasonably required by the Escrow or as reasonably required by
the nature of the Collateral.
3. Collateral. The Collateral shall consist of a
certificate of deposit, savings account, money market account,
letter of credit or bank guaranty letter issued in the name of
the City, or other cash equivalent account or certificate in the
amount of Four Million Dollars ($4,000,000) issued by one of the
ten (10) largest banks in the United States or any other finan-
cial institution if acceptable to the City (the "Financial
Institution ").
4. Remedies. Upon the occurrence of an "Event of
Default" (as defined in Section 5 hereof), the Collateral shall
be released to the City, and the City shall have all customary
rights and remedies of a secured creditor under the Colorado
Uniform Commercial Code to use the Collateral to enforce any and
all rights it may have or has to require demolition of the Hotel
if the Hotel is not completed in accordance with the terms of the
PUD; provided, however, that any demolition will be conducted
pursuant to the City's customary bidding procedures and that any
funds remaining after the demolition of the Hotel by the City
shall be returned to Savanah.
5. Event of Default. It shall be an "Event of
Default" upon the occurrence of all of the following events:
5.1 Savanah shall be in material noncompliance with
the terms of the PUD relating to the Hotel as reasonably
determined by the City's staff;
5.2 the City shall have notified-Savanah in writing of
the material noncompliance (the "Noncompliance Notice ");
5.3 the material noncompliance shall not have been
cured, as reasonably determined by the City's staff, within
forty -five (45) days after Savanah's receipt of the Non-
compliance Notice;
-2-
5.4 after the end of such forty -five (45) days, the
City shall have instructed Savanah in writing to demolish
the Hotel (the "Demolition Notice "); and
5.5 Savanah shall have failed to make a good faith
effort to commence the process of demolition within
thirty (30) days after Savanah's receipt of the Demolition
Notice or shall have failed.to pursue the demolition with
reasonable diligence.
6. Release of Security Interest. The City shall no
longer have a security interest in the Collateral and the Collat-
eral shall be released to Savanah (and the City shall execute any
documents or take any such other reasonable action as is required
by Savanah to effectuate such release) upon the satisfaction of
the following conditions:
6.1 the offsite improvements, as provided in
Section B.1 of the PUD, have been substantially completed or
their completion must be adequately bonded as reasonably
determined by the City or adequate financial assurances have
otherwise been given to the City to secure the construction of
such improvements; and
6.2 the Hotel must be substantially completed as
evidenced by an architect's certificate or as reasonably
determined by the City.
7. Representations and Warranties. Savanah repre-
sents and warrants that Savanah has granted no other security
interest in the Collateral and Savanah promises to keep the
Collateral free from any and all other interests except as set
forth in this Agreement during the term hereof.
8. Covenants. Savanah further covenants and agrees
that Savanah shall not withdraw the Collateral from the Financial
Institution without the prior written consent of the City and
shall execute such other documents or take such other action as
is reasonably required by the City to ensure that Savanah is
unable to withdraw the Collateral without the City's prior
consent.
9. Security Agreement. This Agreement constitutes a
security agreement in favor of the City to secure existing
obligations of Savanah to the City under the PUD and shall not be
interpreted in any way to alter the underlying obligations of
Savanah under the PUD, and in the event of-any inconsistency
between the provisions of this Agreement and the PUD, the
provisions of the PUD shall control.
10. Choice of Law. This Agreement shall be governed
by and construed under the laws of the State of Colorado and any
dispute or action between the parties arising from the
interpretation or implementation of this Agreement shall only be
-3-
brought in the federal, state or local courts located in the
State of Colorado, and the parties agree and do hereby submit
themselves to jurisdiction of said courts.
11. Successors and Assigns. All of Savanah's rights
under this Agreement and in the Collateral may be assigned
(whether voluntarily or by operation of law), provided that this
Agreement shall be binding on the successors and assigns of
Savanah and provided further that if the assignee is other than
Aspen Enterprises International, Inc., a Colorado corporation,
Savanah shall obtain the prior written consent of the City
to such assignment, which consent shall not be unnecessarily
withheld or delayed.
12. Section Headings. Section headings in this
Agreement are included for convenience only and neither
constitute a part of this Agreement for any other purpose nor may
be used to construe it.'
13. Entire Agreement. This Agreement contains the
entire understanding and agreement between the parties hereto
with respect to the granting of the security interest provided
for herein. This Agreement supersedes the Memorandum and the
Memorandum shall be of no further force or effect and shall
neither bind the parties hereto nor be used to interpret this
Agreement or the Escrow Instructions.
14. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given when personally delivered, or if mailed,
on the date three (3) business days after mailing by United
States certified or registered mail, postage prepaid, return
receipt requested, to the parties at the following addresses
(until such addresses are changed by notice pursuant to these
notice provisions):
"Savanah"
Savanah Limited Partnership
c/o Newfield Enterprises, International
2049 Century Park East, Suite 3760
Los Angeles, California 90067
Attention: Mr. Omar Benjamin
with copies to:
Sidley & Austin
2049 Century Park East
Suite 3500
Los Angeles, California 90067
Attn: Marc I. Hayutin, Esq.
-4-
"City"
�1
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Attn: Edward M. Caswall, Esq.,
City Attorney
. 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which counterparts shall constitute one and.the same
agreement.
IN WITNESS WHEREOF, this Agreement is executed as of
the date set forth above.
M: \DXP \DXPA16.WP (8/26/91 12:09pm)
"Savanah"
SAVANAH LIMITED PARTNERSHIP
a District of Columbia limited partnership
By: ASPEN ENTERPRISES INTERNATIONAL, INC.
a Colorado corporation
General Partner
By:
Name • !'1&Az
Title: -„lG
"City"
THE CITY OF ASPEN
By:
Name: Carol O'Dowd
Title: City Manager
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e
MEMORANDUM
DATE: September 3, 1991
TO: Mayor and City Council
FROM: Jed Caswall, City Attorneys
RE: Ritz Demolition Security
•
am
Y
c9J��
2 \�
Attached for your information are copies of the documents execut-
ed between the City and Savanah providing for the demolition
security for the Ritz. There have been some changes made in the
documents as compared to those I forwarded you last week.
Specifically, instead of a cash deposit or CD as originally
contemplated, Savanah opted to post a letter of credit from the
Saudi American Bank in Riyadh that is being confirmed through
Citibank in New York. While the letter of credit is conceptually
acceptable, the particular letter issued has a 9/30/92 expiration
date. I have notified Savanah's lawyers in Los Angeles that we
need to amend both the security and escrow agreements to provide
for a draw down provision prior to 9/30/92 and /or a new expira-
tion date farther into the future. (See attached.) In that I
was not provided the proposed letter of credit until Friday
morning, we could not formalize the final amendments prior to
today's date. Nonetheless, I am confident that the City's inter-
ests are well protected and I will diligently pursue the matter
until all amendments are satisfactorily completed.
I should add that the Number 1 building permit was held up until
Savanah reached an agreement on the payment of the County's use
tax. You may recall that Savanah initially denied liability for
the tax, but we insisted that it had not been "waived" and
Savanah has now agreed to pay a negotiated sum to the County.
Thank you.
EMC /mc
Attachment
jc93.6
recycled paper
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement ") is entered
into as of August 21, 1991, by and between SAVANAH LIMITED
PARTNERSHIP, a District of Columbia limited partnership
( "Savanah "), and the CITY OF ASPEN, COLORADO (the "City "),
with reference to the following facts:
A. The City and Savanah have entered into that certain
First Amended and Restated Planned Unit Development /Subdivision
Agreement for the Aspen Mountain Subdivision dated as of
October 3, 1988, as amended by that certain Section M Amendment
dated June 11, 1990 (the "PUD Agreement ").
B. On March 15, 1991, Savanah submitted a written petition
to the City pursuant to Section M of the PUD Agreement seeking an
extension in construction schedule deadlines governing construc-
tion and development.
C. Hearings were conducted before the City Council on
April 17, May 21, and May 29, 1991, during which Savanah success-
fully demonstrated that the reasons necessitating extensions in
the existing construction schedules deadlines were beyond its
control. As a consequence, the City and Savanah entered into
that certain Amendment to the First Amended and Restated Planned
Unit Development /Subdivision Agreement for the Aspen Mountain
Subdivision dated as of June 10, 1991 (the "PUD Amendment "). The
PUD Agreement as amended by the PUD Amendment is.referred to
hereinafter as the "PUD".
D. As a condition to the extended construction schedule
deadlines, paragraph 14 of Exhibit 1 of the PUD Amendment
provided that Savanah was to post a cash bond or similar liquid
financial assurance in an amount not less than $4,000,000 (the
"Collateral ") no later than September 1, 1991. , As a further
condition to the extensions in construction schedule deadlines,
paragraph 14 provided that Savanah and the City would reach an
agreement whereby Savanah would provide financial assurance to
secure its obligations under the PUD for the demolition of the
Ritz - Carlton Hotel under construction in Aspen, Colorado by
Savanah (the "Hotel")-in the event the Hotel was not completed in
accordance with the terms of the PUD. A Memorandum of Agreement
(the "Memorandum ") was executed by the City Attorney of the City
and the attorneys for Savanah to satisfy this requirement. This
Agreement implements the terms of the Memorandum.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Security Interest. Savanah hereby grants
to the City a security interest in the "Collateral" (as defined
herein) to enforce any and all rights it may have to require
demolition of the Hotel if the structure is not completed in
i
0 0
accordance with the terms of the PUD. Notwithstanding the
preceding sentence, all interest on the Collateral shall remain
the property and be payable to Savanah and shall neither be part
of the Collateral nor security for any obligations of Savanah to
the City.
2. Delivery of Collateral. Savanah shall deliver any
instruments, documents, certificates or other evidence of the
Collateral and the assignment thereof for security purposes to
either (a) United Bank of Denver, (b) Central Bank and Trust, or
(c) any other financial institution mutually agreeable to the
City and Savanah (the "Escrow "). The Escrow shall be governed by
the terms of escrow instructions (the "Escrow Instructions_") in
form'substantially as provided on EXHIBIT A hereto. The Escrow
Instructions shall be supplemented or modified to the extent
reasonably required by the,Escrow or as reasonably required by
the nature of the Collateral.
3. Collateral. The Collateral shall consist of a
certificate of deposit, savings account, money market account,
letter of credit or bank guaranty letter issued in the name of
the City, or other cash equivalent account or certificate in the
amount of Four Million Dollars ($4,000,000) issued by one of the
ten (10) largest banks in the United States or any other finan-
cial institution if acceptable to the City (the "Financial
Institution ").
4. Remedies. Upon the occurrence of an "Event of
Default" (as defined in Section 5 hereof), the Collateral shall
be released to the City, and the City shall have all customary
rights and remedies of a secured creditor under the Colorado
Uniform Commercial Code to use the Collateral to enforce any and
all rights it may have or has to require demolition of the Hotel
if the Hotel is not completed in accordance with the terms of the
PUD; provided, however, that any demolition will be conducted
pursuant to the City's customary bidding procedures and that any
funds remaining.after the demolition of the Hotel by the City
shall be returned to Savanah.
.5. Event of'Default. It shall be an "Event of
Default" upon the occurrence of all of the following events:
5.1 Savanah shall be in material noncompliance with
the terms of the PUD relating to the Hotel as reasonably
determined by the City's staff;
5.2 the City shall have notified Savanah in writing of
the material noncompliance (the "Noncompliance Notice ");
5.3 the material noncompliance shall not have been
cured, as reasonably determined by the City's staff, within
forty -five (45) days after Savanah's receipt of the Non-
compliance Notice;
-2-
5.4 after the end of such forty -five (45) days, the
City shall have instructed Savanah in writing to demolish
the Hotel (the "Demolition Notice "); and
.5.5 Savanah shall have failed to make a good faith
effort to commence the process of.demolition within
thirty (30) days after Savanah's receipt of the Demolition .
Notice or shall have failed to pursue the demolition'with
reasonable diligence.
6. Release of Security Interest. The City shall no
longer have a security interest in the Collateral and the Collat-
eral shall be released to Savanah (and the City shall execute any
documents or take any such other reasonable action as is required
by Savanah to effectuate such release) upon the satisfaction of
the following conditions:
6.1 the offsite improvements, as provided in
Section B.1 of the PUD, have been substantially completed or
their completion must be adequately bonded as reasonably
determined by the City or adequate financial assurances have
otherwise been given to the City to secure-the construction of
such improvements; and
6.2 the Hotel must be substantially completed as
evidenced by an architect's certificate or as, reasonably
determined by the City.
7. Representations and Warranties. Savanah repre-
sents and warrants that Savanah has granted no other security
interest in the Collateral and Savanah promises to keep the
Collateral free from any and all other interests except as set
forth in this Agreement during the.term hereof.
8. Covenants. Savanah further covenants and agrees
that Savanah shall not withdraw the Collateral from the Financial
Institution without the prior written consent of the City and
shall execute such other documents or take such other action as
is reasonably required by the City to ensure that Savanah is
unable to withdraw the Collateral without the City's prior
consent.
9. Security Agreement. This Agreement constitutes a
security agreement in favor of the City to secure existing
obligations of Savanah to the City under the PUD and shall not be
interpreted in any way to alter the underlying obligations of
Savanah under the PUD, and in the event of any inconsistency
between the provisions of this Agreement and the PUD, the
provisions of the PUD shall control.
10. Choice of Law. This Agreement shall be governed
by and construed under the laws of the State of Colorado and any
dispute or action between the parties arising from the
interpretation or.implementation of this Agreement shall only be
-3-
brought in the federal, state or local courts located in the
State of Colorado, and the parties agree and do hereby submit
themselves to jurisdiction of said courts.
11. Successors and Assigns. All of Savanah's rights
under this Agreement and in the Collateral may be assigned
(whether voluntarily or by operation of law), provided that this
Agreement shall be binding on the successors and assigns of
Savanah and provided further that if the assignee is other than
Aspen Enterprises International, Inc., a Colorado corporation,
Savanah shall obtain the prior written consent of the City
to such assignment, which consent shall not be unnecessarily
withheld or-delayed'.
12. Section Headings. Section headings in this
Agreement are included for convenience only and neither
constitute a part of this Agreement for any other purpose nor may
be used to construe it:
13. Entire Agreement. This Agreement contains the
entire understanding and agreement between the parties hereto
with respect to the granting of the security interest provided
for herein. This Agreement supersedes the Memorandum and the
Memorandum shall be of no further force or effect and shall
neither bind the parties hereto nor be used to interpret this
Agreement or the Escrow Instructions.
14. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given when personally delivered, or if mailed,.
on the date three (3) business days after mailing by United
States certified or registered mail, postage prepaid, return
receipt requested, to the parties at the.following addresses
(until such addresses are changed by notice pursuant to these
notice provisions):
"Savanah"
Savanah Limited Partnership
C/o Newfield Enterprises, International
2049 Century Park East, Suite 3760
Los Angeles, California 90067
Attention: Mr. Omar Benjamin
with copies to:
Sidley & Austin
2049 Century Park East
Suite 3500
Los Angeles, California 90067
Attn: Marc I. Hayutin, Esq.
-4-
• r
"City"
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Attn: Edward M. Caswall, Esq.,
City Attorney
15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which counterparts shall constitute one and the same
agreement.
IN WITNESS WHEREOF, this Agreement is executed as of
the date set forth above.
M: \DXP \DXPA16.WP (8/26/91 12:09pm)
"Savanah"
SAVANAH LIMITED PARTNERSHIP
a District of Columbia limited partnership
By: ASPEN ENTERPRISES INTERNATIONAL, INC.
a Colorado corporation
General Partner
By:
Name • !' / ��� •� G--
Title:
"City"
THE CITY OF ASPEN
By:
Name: Card n'Dowd
Title: City Manager
-5-
• o
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement ") is entered into
as of August 28, 1991, by SAVANAH LIMITED PARTNERSHIP, a District
of Columbia limited partnership ( "Savanah "), the CITY OF ASPEN,
COLORADO (the "City "), and CENTRAL BANK, N.A., a national banking
association as ( "Escrow Agent "), with reference to the following
facts:
A. The City and Savanah have entered into that certain
First Amended "and Restated Planned Unit Development /Subdivision
Agreement for the Aspen Mountain Subdivision dated as of
October 3, 1988 as amended by that certain Section M Amendment
dated June 11, 1990 (the "PUD Agreement ").
B. On March 15, 1991, Savanah submitted a written petition
to the City pursuant to section M of the PUD Agreement seeking an
extension in construction schedule deadlines governing construc-
tion and development.
C. Hearings were conducted before the City Council on
April 17, May 21, and May 29, 1991, during which Savanah success-
fully demonstrated that the reasons necessitating extensions in
the existing construction schedules deadlines were beyond its
control. As a consequence, the City.and Savanah entered into
that certain Amendment to the First Amended and Restated Planned
Unit Development/Subdivision Agreement for the Aspen Mountain
Subdivision dated as of June 10, 1991 (the "PUD Amendment "). The
PUD Agreement as amended by the PUD Amendment is referred to
hereinafter as the "PUD".
D. Paragraph 14 of Exhibit 1 of the PUD Amendment
provided, as a condition to the extensions in construction
schedule deadlines, that Savanah and the City would reach an
agreement whereby Savanah would provide financial assurance to
secure its obligations under the PUD for the demolition of the
Ritz- Carlton Hotel under construction.in Aspen, Colorado by
Savanah (the "Hotel ") in the event the Hotel was not completed in
accordance with'the terms of the PUD. A Memorandum of Agreement
(the "Memorandum") was executed by the City Attorney of the City
and the attorneys for savanah to satisfy this requirement.
E. Savanah has obtained a letter of credit issued in the
name of the City, in the amount of Four Million Dollars
($4,000,000) (the "Collateral ") confirmed or issued by Citibank.
savanah has granted the City a security interest in the
Collateral pursuant to, and on the conditions contained in, that
certain Security Agreement dated as of August 21, 1991 (the
"Security Agreement "), a copy of which is attached hereto as
Exhibit A. This Agreement and the Security Agreement implement
the terms of the Memorandum.
7.14 PC -f7T. Ta, Pp qnH
NOW, THEREFORE, the parties hereto agree as follows:
1. Delivery. Savannah shall deliver any instruments,
documents; certificates or other evidence of the Collateral and
the assignment-thereof for security purposes to Escrow Agent.
2. Release of Collateral.
2.1 Escrow Agent shall cause the Collateral to be
released to the City only upon (a) the occurrence of an "Event of
Default" (as defined in Section 5 of the Security Agreement)
evidenced in writing by City of Aspen of the default, and (b) a
written demand for release by the City to Escrow Agent.
2.2 Escrow Agent shall cause the Collateral to be
released to Savanah only upon (a) the satisfaction of all
conditions contained in Section 6 of the Security Agreement
evidenced.in writing by Savanah and the City of the satisfaction,
and (b) a written demand for release by Savanah to Escrow Agent.
2.3 Prior to causing a release of the Collateral,
Escrow Agent shall provide both the City and Savanah with at
least five (5) business days' prior written notice of its intent.
3. Escrow Agent Fees. Except as otherwise provided
in this Agreement, any fees of Escrow Agent shall be paid by
Savanah, and City shall have no responsibility therefore. Escrow
Agent agrees that its fees shall be as follows: (a) inception set
up fee - $1,000; and (b) $1,000 annual minimum fee for any.full
year or partial year. The first year's fee shall be payable upon
execution of this Agreement, and the annual fee thereafter shall
be payable on each anniversary date until termination of the
Agreement or replacement of the Escrow Agent.
4. Replacement of Escrow.
4.1 Escrow Agent may resign and be discharged of
the obligations created by this Agreement by delivering to
Savanah and the City written notice of its resignation as Escrow
Agent. Upon receiving such notice of resignation, Savanah and
the City shall endeavor to appoint a successor Escrow Agent. Any
resignation of Escrow Agent shall become effective upon
acceptance of appointment by the successor Escrow Agent, and if a
substitute Escrow Agent is not appointed hereunder within thirty
(30) days, escrow Agent may petition a court of competent
jurisdiction to make such an appointment.
4.2. If Escrow Agent shall be removed by the
mutual consent of Savanah and the City, or is dissolved, or if
its property or affairs shall be taken under the control of any
state or federal court or administrative body or agency because
of insolvency or bankruptcy or for any other reason, a vacancy
shall forthwith exist in the office of Escrow Agent, and within a
-2-
C•d sc:rT T6, es 5nd
period of thirty (30) days thereafter, a successor shall be
appointed by Savanah and the City, and if a substitute Escrow
Agent is not appointed hereunder within thirty (30) days, Escrow
Agent may petition a court of competent jurisdiction to make such
an appointment.
4.3 Appointments made under this.Section 4 shall
be made by an'instrument or instruments in writing. Copies of
each instrument shall be delivered by Savanah and tha City to the
predecessor Escrow Agent and to the successor Eacrow Agent so
appointed.
4.4 Any successor Escrow Agent shall execute,
acknowledge and deliver to savanah and City an instrument
accepting such appointment hereunder, and thereupon such
successor Escrow Agent, without any further act, deed or
conveyance, shall become duly vested with all of the property,
rights, powers, trusts, duties and obligations of its predecessor
hereunder, with the same effect as if originally named Escrow
Agent and shall be bound by all obligations of the original
Escrow Agent. Upon request of such successor Escrow Agent,
Savanah and City shall execute and deliver an instrument trans-
ferring to such successor Escrow Agent all the property, rights,
powers and trusts of the Escrow Agent so ceasing to act here -
under, and the Escrow Agent so ceasing"to act shall pay over or
deliver to the successor Escrow Agent the items delivered
pursuant to Section 1 hereof and all monies, records and other
assets then held by it hereunder.
5. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Colorado, and any dispute or action between the parties arising
from the interpretation or implementation of this Agreement shall
only be brought in any federal, state or local courts in the
State of Colorado; and the parties agree and do hereby submit
themselves to jurisdiction of said courts.
6. No Third Party Rights. The City, Escrow Agent and
Savanah agree that no party other than them shall have or acquire
any rights or interest under this Agreement, the Collateral or
any funds drawn from the Collateral, whether as a third party
beneficiary hereof or otherwise; provided, however, that Savanah,
with the written consent of the City, which consent shall not be
unreasonably withheld or delayed, may assign or transfer its
rights (whether voluntarily or by operation of law) under the
Security Agreement, under this Agreement and in the Collateral
but Savanah's assignee shall be bound by the terms of this
Agreement and the Security Agreement. Notwithstanding the
foregoing, the consent of the City shall not be required for a
transfer by Savanah of any of its rights (whether voluntarily or
by operation of law) to Aspen Enterprises, International, Inc.
-3-
b'd 6E:VT T6, 0E 5nu
M •
7. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an'original, but all
or which together shall constitute one and the same agreement.
81 Instructions. Escrow Agent shall be bound only by
the foregoing written instructions, and such further written
instructions as the parties hereto, under the conditions herein
imposed, from time to time deliver to Escrow Agent.
Notwithstanding anything to the contrary contained in these
instructions, Escrow Agent shall have no duty to determine the
performance or nonperformance of the City or Savanah under any
term or.condition of any contract or agreement between the
parties to these instructions.
9. Disputes. If Escrow Agent shall become involved
in litigation, including interpleader brought by it, a®'a result
of adverse claims or demands being made upon Escrow Agent by the
City or Savanah, the City and Savanah agree that they shall each
be liable to Escrow Agent for one -half of all costs, expenses.and
reasonable attorneys' fees incurred by Escrow Agent in connection
with such litigation or any appeal therefrom.
10. Section Headings. Section headings in this
Agreement are included for convenience only and neither
constitute a part of this Agreement for any other purpose nor may
be used to construe it.
11. Noti�-a. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given when personally delivered, or if mailed,
on the date three (3) business days after mailing by United
States certified or registered mail, postage prepaid, return
receipt requested, to the parties at the following addresses
(until such addresses are changed by notice pursuant to these
notice provisions):
I' Savanah"
Savanah Limited Partnership
C/o Newfield Enterprises, International
2049 Century Park East, Suite 3760
Los Angeles, California 90067
Attention: Mr. Omar Benjamin
with copies to:
Sidley & Austin
2049 Century Park East
Suite 3500
Los Angeles, California 90067
Attention: Marc I Hayutin, Esq.
-4--
r" J CC • a T TC faC CV-1w
"Escrow Agent"
Central Bank, N.A.
1515 Arapahoe Street
Denver, Colorado 80202
Attention: Ms. Kiki Deane
"City"
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Attention: Edward M. Caswall, Esq.
City. Attorney .
12. Termination Date. If the Collateral is not
withdrawn by October 1, 1993 and is not subject to litigation,
this Agreement shall terminate and the Collateral shall be
forwarded to Savanah.
IN WITNESS WHEREOF, Savanah, the City and Escrow Agent
have caused the execution of this Agreement by their authorized
representatives as of the date first set forth above.
IIESCROW AGENT11
CENTRAL BANK, N.A.
a national,bank association
By.
Name:
Title:
"SAVANAH"
SAVANAH LIMITED PARTNERSHIP
a District of Columbia limited partnership
By: ASPEN ENTERPRISES INTERNATIONAL, INC.
a Colorado corporation
General Partner
By:
Charles E. Wallace
'President
[signatures continued on next page]
-5-
9 "d et7:bt TG, eF 9nH
[signatuzes continued from previous page]
5DXP.WP (8/80/91 1:46pm)
"CITY'r
CITY OF ASPEN, COLORADO
: -�� %�.
Y _
Name: Carol O'Dowd
Title: City Manager
Exhibit A
--.LT Tr n L MP
D
:.- : :: �1I�lTERNATIO�lAL BANKING FACILITY � 1991
:.......... ..... ... .....
CABLE ADDRESS CITIBANK,NY 111 WALL_ STREET,NEW YORKYN.Y 1004.3
;.Confirmed Irrevocable Straisht Credit DATE:: AudFtjCE, ► 1991 .
MAIL
CITY OF ASPEN All_draf,ts drawn must be marked:
ATTN: MFc.EhWARh CASWELL CITIBANK Ref. No.' 40052204
130 :::SOUTH', GALENA STREET.:: Opener's Reference No:
ASPEN;.CO:;81611. 082039
10U 6
Dear Sirs:
Attached r-lease.firid.Irrevocable Credit as issijed bu
SAUDI'AMERICAN BANK
P. O. B0X',:833 :.
114211y. SAUDI ARABIA.
RIYADH
PLEASE - CONSIDER °THE:": ATTACHED `AUTHENTICATED TELEX AS THE ORIGINAL`
LETTER, OF CREDIT: INSTRUMENT
The: attached; :irtstr"umerit` and"' this :letter "are`"toaccort,eanu'all 'draft(s)
and .doclj ments:: Also::: .leas'e- .submit.. or, e:. extra .set of`non- negotiable
'docuriients' °for'oi�r .files:'. "When' ereser� tin sour; draft(s). and documents or....,
wheni cortiniur(icatiri's'`with ru8"�:p lease make . re'fereri6E "'to' our .reference number:.';;
..shown .above.: ..
'We' confirm the credit and hereby undertake to honor each draft drawn
and Preserited" as"...sn6cifi`ed" ir.""the--above-ref erenced credit':
-The credit is .subiect. to ,the Uniforut Customs and Practice for
Documentary Credits ( 1983" R'-
ev
'i'sion)'. I6 t6rria'tiorial Chamber of Commerce
PUBLICATION 400.
•�,.. Y
. ours very t s
_ .:..........._....::.. --
__.. _... _ ..._..... - _._..
F.:S -. ,._"A'--
fee of U.S.$: 50.04 will be charoed documents_ that..contain
¢iscrePancies. are " Presented `for. eavment iinder`:`this .letter of.: credit. .
e'.'c:har ed, for.'_ each .'set:._ ofdiac'reeant"document's` Preser'ted
for negotiat ion . =The:discrepanev fee will be.deducted from remittances
made `urid'e7 ` this: letter: of credit . f'.". the letter of` credit iri�iicates'
that some or all char9es-are the reseonsibilitV'of the or-ening b-apk..
FhuM . SAUDI AMERICAN BANK. RI
TO CITIBANK NA, ,NEWYORN,
'ATTN : IBISM MENA LC DIV (4) / SULEMAN KHAN
WE OPEN OUR IRREVOCABLE SIGHT DOC.CREDIT NO.1000B20396 FOR
USDLRS 4,000,000.00 ( USDLRS FOUR MILLION ONLY) COVERING
HOTEL DEMOLIT.ON AND CONSTRUCTION COSTS. -
APPLICANT v SAVANAH LIMITED PARTNERSHIP,
600 EAST, COOPER AVENUE, SUITE 200, ASPEN, COLORADO .
COLORADO 81611. FAX . (1) 303 -925 4387
TEL : (1) 303 -925 4272
BENEFICIARY : CITY OF ASPEN, ATTN : MR. EDWARD CASWELL
130 SOUTH GALENA STREET, ASPEN, COLORADO 81611
U. S. A.
EXPIRING ON..30.SEPTEMBER.1992,IN U.S..A. FOR.. NEGOTIATIONS.-
THIS DOCUMENTARY CREDIT" IS AVAILABLE BY NEGOTIATIO:J OF BENEFICIARYS
DRAFT(S) AT SIGHT DRAWN ON CONFIRMING BANK BEARING THE CLAUSE DRAWN
UNDER DOC.CREDIT NO. 1000820396 OF SAUDI AMERICAN BANK, RIYADH,S.A.
DOCUMENTS REQUIRED FOR NEGOTIATION FOR EACH PARTIAL PAYMENT(S) .
(1) BENEFICIARY'S CERTIFICATE STATING THE FOLLOWING
(A) SAVANAH LIMITED PARTNERSHIP ( "SAVANAH ") IS IN MATERIAL
NONCOMPLIANCE WITH THE TERMS OF THAT CERTAIN FIRST AMENDED
AND RESTATED PLANNED UNIT DEVELOPMENT /SUBDIVISION
AGREEMENT FOR ASPEN MOUNTAIN SUBDIVISION RELATING TO THE
RITZ- CARLTON HOTEL (THE "HOTEL ")
(B) BENEFICIARY NOTIFIED SAVANAH IN WRITING OF THE MATERIAL
NONCOMPLIANCE (THE "NONCOMPLIANCE NOTICE ")
(C) THE MATERIAL NONCOMPLIANCE HAS NOT BEEN CURED AND FORTY -FIVE
(45) DAYS HAS LAPSED SINCE SAVANAH'S RECEIPT OF THE
NONCOMPLIANCE NOTICE.
(D) BENEFICIARY HAS INSTRUCTED SAVANAH IN WRITING AFTER THE END
OF SUCH FORTY -FIVE (45) DAYS TO DEMOLISH THE HOTEL (THE
(R "DEMOLITION NOTICE ") AND
(E) SAVANAH HAS FAILED TO MAKE A GOOD FAITH EFFORT TO COMMENCE
THE PROCESS OF DEMOLITION WITHIN THIRTY (30) DAYS AFTER
SAVANAh -;'S RECEIPT OF THE DEMOLITION NOTICE OR HAS FAILED
TO PURSUE THE DEMOLITION WITH REASONABLE DILIGENCE,
OTHER REQUIREMENTS
- PARTIAL PAYMENT IS ALLOWED.
NEGOTIATIONS ARE RESTRICTED TO: CITIBANK NA, NEW YORK,
- L/C TO BE CONFIRMED BY CITIBANK NA, NEW YORK
SPECIAL CONDITIONS:
1).ALL DOCUMENTS MUST INDICATE LC NUMBER OF ISSUING BANK., AND OF
ADVISING BANK. (IF INDICATED)
�').ALL'BANKING CHARGES INCLUDING CONFIRMATION CHARGES, DHL COURIER
CHARGES AND REIMBURSEMENT CHARGES, OUTSIDE SAUDI ARABIA ARE
FOR APPLICANT'S ACCOUNT.
? 3).THE AMOUNT OF EACH DRAFT(S) MUST BE ENDORSED ON THE REVERSE
OF. THIS CREDIT BY THE NEGOTIATING BANK.
4).THE NEGOTIATING BANK WILL FORWARD DOCUMENTS -
%y .. DIRECTLY TO US BY DHL OR ANY OTHER INTERNATIONAL COURIER SERVICE -'
4S1 5)'.ALL NEGOTIATIONS SHOULD BE ADVISED TO SAUDI AMERICAN BANK RIYADH
BY TESTED TELEX..
6).THE NEGOTIATING` BANK IS AUTHORIZED TO DEBIT.OUR ACCOUNT NUMBER
36006252 WITH THEM, TWO BUSINESS DAYS AFTER SENDING A TESTED
TELEX.TO US INDICATING THE AMOUNT NEGOTIATED AND STATING THAT
',i;t-: THE; DOCUMENTS STRICTLY COMPLY WITH LC TERMS AND CONDITIONS AND
y•HAVE._BEEN -SENT TO US BY COURIER- SERVICE.
7) IN CASES OF DISCREPANCIES REIMBURSEMENT WOULD ONLY BE PROVIDED` '
BY US. AFTER.THE.DDCUMENTS HAVE BEEN ACCEPTED BY THE ACCOUNT PARTY
WE HEREBY:ENGAGE.WITH'.DRAWERS, ENDORSERS AND /OR BONAFIDE
,.HOLDERS-THAT-DRAFTS DRAWN AND NEGOTIATED IN CONFORMITY WITH THE
'7TERMS- OF,'THIS CREDIT WILL BE DULY HONOURED ON PRESENTATION AND
THAT DRAFTS ACCEPTED WITHIN THE TERMS OF THIS CREDIT WILL BE DULY
HONOURED AT MATURITY STP
EXCEPT AS FAR AS OTHERWISE EXPRESSLY STATED, THIS
;.DOCUMENTARY CREDIT IS SUBJECT TO THE "UNIFORM CUSTOMS AND PRACTICE
- -FOR DOCUMENTARY CREDIT (1963 REVISION) INTERNATIONAL CHAMBER OF
"COMMERCE BROCHURE NO.400 STP
-PLEASE NOTE.THAT THIS REPRESENTS AN OPERATIVE INSTRUMENT AND
THEREFORE NO FURTHER DETAILS WILL FOLLOW BY AIRMAIL THEREAFTER.
PLEASE ADVISE BENEFICIARY ADDING YOUR CONFIRMATION
- INSTRUCTIONS•TO CITIBANK NA NEWYORK
_PLEASE SEND THE LC INSTRUMENT.TO
z r.i r'i,SgVRNRH
LIMITED.
600 EAST,' COOPER AVENUE, SUITE 2200, ASPEN`, COLORADO 81'
FAX e- •(1):303 -9 ^c5 4387,. TEL (1) 303 -925 4272 -
,ATTN : OMAR BENJAMIN.-- - - -
REGRRDS ;:- ISMAIL, /.:LC DEPT:
ALIG 24) '31 4ir1 !tiL Y Y 1 ( : I 1'T* (N R 7 1 1.1
rAX TRANSMISSION
Auguot 30, 1991
David L. Packer, Esq.
Sidlay & Austin
2049 century. Park East
LOU Angeles, California 90067
Ra: savanah Latter oZ Credit
Dear David:
F. i�fZ;
This is to confirm our telephone conversation thin day regarding
the ahovo -noted matter.
As you khdw, I am eoncsrnad abbot the September 30, 15 2, expira-
tion date as stated in the proffered letter of credit. It is
poacible that the letter of credit could expire prior to the
extingulahrant of the aondj+,ions and purposea underlying its
poating in the first instance, thus, leavinq the City exposed and
without the security required by the PvD.
Because of the existing tLza conatrA into, you and I have agreed
to place the existing latter of Credit into escrow with Cantral
Bank, subject to tho modified asoxav instructions that you
aro preparing. Wo haVQ also agreed that wa neLad to modify the
existing security Agreement so as to provide for tha extansion or
draw down of the lattar of credit in the event that the condi-
tions providing for its release do not occur prior to September
30, 1992. Again, becauas of the time, we will not be able to do
thin until next weak at the earliaot_ We. Will also need to amend
the escrow instructions to refleot the changes that are to be
made in the security Agreement.
Thank you for yoMr aaaiatanoe and 00 *peraticn. I woVld appreci-
ate your writtlan Confirmation beloW of the matters sat forth
above.
very truly yours,
Edward M. caswall
City Attorney
ExC /mc
ja830.1
PUG M 91 iil051FIN C:1I'Y CV F9SPEN P. -1/-.:4
5avanah Ltd_ Partnership oonfirms the matterm and understandinq
dascribQd it this letter.
SAVANAH LTD. PARTNERSHIP
Eyt �•-� '
David L. Dacxar, Esq
Attorney for 6nvahah Ltd. Partnership
cot Rabort W. Hughes, Esq.
i #335656 08/19/91 16:01 Rec $60. 00 BK' 654 FIG 41e
Silvia Davis, Pitk:in Cnty Clerk:, Doc x.00 i
AMENDMENT TO THE FIRST AMENDED AND RESTATED
PLANNED UNIT DEVELOPMENT /SUBDIVISION
AGREEMENT FOR THE ASPEN MOUNTAIN SUBDIVISION
THIS AMENDMENT to the First Amended and Restated Planned
Unit Development /Subdivision Agreement for the Aspen Mountain
Subdivision ( "PUD Agreement "), being entered into between the
City of Aspen, Colorado ( "City ") and Savanah Lim' ed Partnership
( "Savanah" or "Owner ") on this /D day of ,
1991, provides as follows:
R E C I T A L S
WHEREAS, on March -15, 1991, Savanah submitted a written
petition to the City pursuant to Section M of the PUD Agreement
seeking certain extensions in the construction schedule deadlines
governing construction and development within the Aspen Mountain
Subdivision; and
WHEREAS, hearings were conducted before the City Council on
April 17th,.May 21st and 29th, 1991, during which Savanah suc-
cessfully demonstrated that the reasons necessitating extensions
in the existing construction schedule deadlines were beyond its
control; and
WHEREAS, Section M of the PUD Agreement authorizes exten-
sions of the time periods for construction schedules upon a
proper showing; and
WHEREAS, Section 0(6) of the PUD agreement authorizes
amendments to the Agreement by written instrument executed by the
parties thereto.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions as contained herein, it is agreed that the provisions
here.inbelow shall amend the PUD Agreement as follows:
1. Savanah's construction schedule deadlines as set forth
in Section A2 of the PUD Agreement, and as previously amended by
that Section M amendment executed on June 11, 1990 (recorded in
Book 627 at Page 457 in the records of the Pitkin County Record-
er), are amended to provide as follows:
Certificate of occupancy
Ice Rink /Park
From
10/1/91
To
10/1/92
Certificate of occupancy
Ritz - Carlton Hotel 10/1/91 10/1/92
Vil-1-5656 Oe/ 19/91 16:01 R® $60. 00 Est`: 654 PG 419
Silvia Davis, Pit.k:in Cnty Clerk:, Doc $.( "-)o
Building permit issuance
Ute City Place 10'/1/91 4/1/92
Certificate of occupancy
Summit Place 8/1/92 8/1/93
Certificate of occupancy
Ute City Place 6/1/93 same
Demolition permit for Lot 5
Grand Aspen Hotel 10/1/94 10/1/95
Building permit issuance
Top of Mill 10/1/95 same
Building permit issuance
Hotel Phase II 10/1/96 same
Certificate of occupancy
Top of Mill 6/1/97 same
Certificate of occupancy
Hotel Phase II, Lot 5 6/1/98 same
2. Section L of the PUD agreement is amended to provide as
follows:
"It is mutually acknowledged and verified between City and
Owner that pursuant to Municipal Code Section 24- 11.2(a),
Owner has the right, following their demolition, to recon-
struct within the Aspen Mountain PUD a total of 275 hotel
units and a total of'42 residential units. The original
location (source) of these reconstruction units is identi-
fied on the Schedule 9 update attached hereto and made apart
hereof by this reference. Furthermore, the City hereby
agrees and confirms that for the 18 previously demolished
residential units as identified on the Schedule 9 update
attached hereto, Owner shall have one (1) year from the date
of issuance of the demolition permit for the Grand Aspen
Hotel to reconstruct same."
(The Schedule 9 update is attached hereto and incorporated
herein as part of this Amendment.)
3. The amended construction schedule deadlines as provided-
for in paragraph 1 above shall be and remain in force and effect
only insofar as Savanah complies with all of-those terms and
conditions as set forth in that written decision of the City
2
@--�#335656 08/19/91 16.01 � �bi�. i�c:� Df:: 654 PG 420
Silvia Davis, Pitk:in Cr Clerk:, Doc $.00
Council of the City of Aspen attached hereto as Exhibit "1" and
incorporated herein, that was issued upon and in response to
Savanah's petition of March 15, 1991, seeking a Section M.amend-
ment.
4. All other terms,and conditions of the PUD Agreement and
the previous Section M a mendment.dated June 11, 1990, not incon-
sistent or. superseded by this amendment, shall remain in full
.force and effect.
5. This amendment document shall be promptly recorded in
the records of.the Pitkin County Clerk and Recorder's office.
IN WITNESS WHEREOF, the parties have hereunto set their
signatures on the _day and year as first written above.,
THE CITY OF ASPEN
ay �
Mayor
ATTEST: �J
V.'
Kathry . Koch, City C1
APPROVED AS TO FORM:
City Attorney
STATE OF COLORADO )
) ss.
County of Pitkin )
The foregoing instrument was ackno ledged fo me this
day o LJ 1991, by ;4,
as Mayor an / athryn S. Koch', City C erk, of t es city of .,�spen,
Colorado.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
3
7z!t
c�
/ 2
W4335656
08/19/91 16:01 R $60.00 0
Bf :
654 PG
421
of Savanah Limited
Silvia
Davis, Pit[.--.in Cnt ler•i::,
Doc
$.Oo
APPROVED
ORM:
T
Attor ey
of Savanah Limited
Partnership
STATE OF CALIFORNIA
County of
Los Angeles
SAVANAH LIMITED PARTNERSHIP
By: ASPEN ENTERPRISES INTERNATION-
AL, INC., General Partner
1�� ---�
By:
ss.
The foregoing instrument was acknowledged before me this
18th day of July , 1991, by Charles E. Wallace
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires: July 7, 1995
OFFICIAL NOTARY SEAL
ANNE C. SAMSTAG
:o Notary Public — California
is LOS ANGELES COUNTY
trily Comm. Expires JUL 07,1995
Notary Public ;
Address
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654 PG 423
'Silvia
Davis, Pitk:in
Cnty
Clerk,
Doc
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4335656 ()8/19/91 160 Rec $60.( : 654 PG 424
® Silvia Davis, Fitk:in��ty Clerk_, Doc $.cic_) —_
BEFORE THE CITY COUNCIL OF THE
CITY OF ASPEN,.COLORADO
IN RE THE MATTER OF SAVANAH LIMITED PARTNERSHIP'S REQUEST FOR A
SECTION M AMENDMENT TO THE FIRST AMENDED'AND RESTATED PLANNED
UNIT DEVELOPMENT /SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAIN
SUBDIVISION.
This matter is before the City Council upon the petition of
Savanah Limited Partnership ( "Savanah ") pursuant to Section M of
the First Amended and Restated Planned Unit Development/Subdivi-
sion Agreement for the Aspen Mountain Subdivision ( "PUD Agree-
ment"), seeking certain extensions in the construction scheduling
for subdivision development. Pursuant'to Savanah's petition, a
public hearing was convened upon notice on April 17, 1991, which
was continued for further proceedings to May 21st and 29th, 1991.
Savanah appeared, with legal counsel, and produced testimony.and
other evidence in support of its petition. Additional testimony
and evidence on the matter was submitted by the City staff and
members of the public. Having heard all of the offered testimony
and argument and having reviewed the documentary evidence as'
submitted and made part of the record herein, the City Council
finds as follows:
1. On March 15, 1991, Savanah submitted a written petition
to the City pursuant to Section M of the PUD Agreement seeking an
extension in the present construction schedule deadlines govern-
ing construction and development within the Aspen Mountain
Subdivision.
2. Section M of the PUD Agreement provides as follows in
its relevant part as pertinent hereto:
... the Owner or its successors or assigns may, on its
own initiative; petition the City Council for a vari-
ance, an amendment to this Agreement, or an extension
of one or more of the time periods required for perfor-
mance under the Construction Schedules or otherwise.
The City Council may grant such variances, amendments
to this Agreement, or extensions of time as it may deem
appropriate under the circumstances. The parties
expressly acknowledge and agree that the City Council
shall not unreasonably refuse to extend the time peri-
ods for performance indicated in one or more of the
Construction Schedules if Owner demonstrates by a
preponderance of the evidence that the reasons for the
delay(s) which necessitate such extension(s) are beyond
_. EXHIBIT 1
the control of the Owner, despite good faith efforts on
its part to perform in a timely manner."
3. Savanah seeks extensions in the.current construction
schedule deadlines as follows:
From To
(i)
Certificate of Occupancy
35656
Silvia 'Davis,
08/ 19/91 16: Q 1
Pit[.-.in Cn
R ;" $bc_). (= 0
Clerk:,
Eck::
Doc
654 PG 425
$.00
the control of the Owner, despite good faith efforts on
its part to perform in a timely manner."
3. Savanah seeks extensions in the.current construction
schedule deadlines as follows:
From To
(i)
Certificate of Occupancy
Ice Rink /Park
10/1/91
10/1/92
Certificate ofOccupancy
Ritz - Carlton Hotel
10/1/91
10/1/92
(iii)
Building Permit Issuances
Ute City Place
10/1/91
4/1/92
(iv)
Certificate of Occupancy
Summit Place
8/1/92
8/1/93
(v)
Demolition Permit
Grand Aspen Hotel
10/1/94
10/1/95
4. Savanah has alleged that the following facts and /or.,
circumstances have caused delays in the progress of construction
of the Ritz - Carlton Hotel.component of the subdivision develop-
ment and that such facts and circumstances were beyond its
control:
(i) The Persian Gulf War and resulting adverse impact
on Savanah's principal financing resources situat-
ed in Saudi Arabia, including the non - liquidity
and non - transferability of Saudi Arabian currency.
(ii) The general economic slow down and recession im-
pacting the economy of the United States 'and,
particularly, the hotel and resort segment of
same.
5. City Council finds that Savanah has been able to
demonstrate by a preponderance of the testimony and evidence as
established in the record that the Persian Gulf War and its
resulting impact on the Saudi Arabian currency (riyal) has
adversely affected Savanah's ability to finance its construction
activities associated with the Aspen Mountain Subdivision and
that such factors have caused delays in-the progress of construc-
tion that were beyond the control of Savanah despite its good
faith efforts to perform.
2
66
#3 -5•x
(;)8/19/91 x.60 01
Davis, Pitk.in_C
r_-`)$60. ( __)U
rJWClerk,
BK
Doc_
Silvia
654 PG 426
$.Oil
6. City Council further finds that Savanah has not been .
able to demonstrate by a preponderance of the testimony and other
evidence presented that general economic or recessionary condi-
tions existing in the United States economy have caused delays in
its construction activities or schedules associated with =he
development of the subdivision, or that alleged adverse economic
conditions as may be affecting the project were the result of
facts or circumstances beyond Savanah's control.
7, City Council further finds that the testimon•T and other
evidence as reflected in the record before it.establis..es by a
preponderance that internal legal disputes and management dis-
agreements between the partners have exacerbated and contributed
to the delays in the project's construction schedules and that
such factors were within the control of Savanah.
S. The delays,in the construction schedules for the Ritz -
Carlton Hotel have and will cause significant disruption in the
City's downtown core area by extending construction activities
and the adverse traffic, dust, noise and,visual impacts associat-
ed therewith.
9. The preponderance of the evidence presented by Savanah
does not demonstrate that Savanah will complete the construction
of the Ritz - Carlton Hotel, thus, warranting the imposition of
additional financial assurances upon Savanah to protect.the City
and the citizens of Aspen from the adverse impacts of an unfin-
ished construction project.
NOW, THEREFORE, BASED UPON THE ABOVE AND FOREGOING, City
Council does hereby grant to Savanah Limited Partnership the
following extensions to the construction.schedule deadlines for
the Aspen Mountain Subdivision, which extensions shall be incor-
porated into _a written amendment to the PUD Agreement pursuant to
Sections M and 0(6), subject to those terms and conditions as set
forth below:
EXTENSIONS
FROM TO
1. Certificate of Occupancy
Ice Rink /Park 10/1/91 10/1/92
2. Certificate of Occupancy
Ritz - Carlton Hotel 10/1/91 10/1/92
3. Building Permit Issuance
Ute City Place 10/1/91 4/1/92
3
..
43,
Silvia
08/19/91 16:01 c" $6().00 Eck:: 654 PG 427 i
Davis, PiU --An C / Gler_k:, Doc $.00
4. Certificate of Occupancy
Summit Place 8/1/92 8/1/93
5. Demolition Permit for Lot 5
Grand Aspen Hotel 10/1/94 10/1/95.
CONDITIONS
1. Savanah shall upgrade the entire exterior fence (with
screening) adjacent to the Ritz - Carlton Hotel construction site
and Ice Rink /Park site. With regard to the visual appearance of
the Ice Rink /Park parcel, the fence will be moved approximately
twenty feet to the South off of the Durant Street curb, and all
areas exterior to the fence, except for the parking lot, shall be
seeded. A gravel path shall also be installed in this area.
Fugitive mud and dust prevention measures will be utilized on
these sites. All construction materials stored on the Ice
Rink /Park site shall be removed from public view at street level.
All of these items shall be completed by August 1, 1991, and to
the satisfaction of the Public Works Director.
2. The construction entry to the Blue Spruce off of Durant
Street shall be cleaned up and not utilized for construction
activities and the site shall continue to be fenced (with screen-
ing). This shall be completed by September 1, 1991, and to the
satisfaction of the Public Works Director.
3. The Blue Spruce structure shall be cleared of construc-
tion materials and scaffolding shall be concealed from public
view at street level. These items shall be completed by Septem-
ber 1, 1991, and to the satisfaction of the Public Works Direc-
tor.
4. A safe pedestrian path shall be installed on the East
side of Mill Street between the Ritz - Carlton Hotel construction
site and the Grand Aspen Hotel. This shall be completed by July
1, 1991, and to the satisfaction of the Public Works Director.
5. Temporary patch work shall be installed on Mill Street
between the Grand Aspen Hotel and Ritz - Carlton construction site.
This work shall be completed by August 15, 1991, and to the
satisfaction of the Public Works Director.
6. Patch work on Dean Street shall be installed in front
of the Grand Aspen Hotel and shall be completed by July 1, 1991,
and to the satisfaction of the Public Works Director.
7. Bank stabilization on both the South and West sides of
the Ritz - Carlton Hotel construction site shall be completed by
4
"a#k335656 08/19/91 16:01 R X60. ou Eck:: 654 PG 429
!Silvia Davis, F'iU --An Cn er -k, Doc $ -00
September 1, 1991, and to the satisfaction of the Public Works
Director.
8. Savanah shall apply for rezoning of the Ice Rink /Park
parcel to a "Park" zoning designation by July 1, 1991. If
Savanah does not apply for such rezoning, the City shall initiate
rezoning with all fees to be paid by Savanah.
9. Savanah shall submit a final development plan for the
Ice Rink /Park parcel to the City by September 25, 1991.
10. Savanah shall-complete submission of all necessary
information for a "Number'l" building permit for the Ritz - Carlton
Hotel to the Building Department by July 8, 1991. A list of the
outstanding documents and /or information Savanah has yet to
provide the Building Department pursuant to its building permit
application is attached hereto as Attachment 1.
11. Savanah shall obtain and City shall issue the "Number
1" building permit by September 1, 1991, and all necessary fees
and applicable taxes shall be paid by Savanah at that time.
12. Savanah shall secure and fence Summit Place and remove
all debris from the site. The West wall shall also be repaired.
These items shall be completed by August 1, 1991, and to the
satisfaction of the Public Works Director. Alternatively,
Savanah may elect to demolish the Summit Place structures provid-
ed that said demolition is completed'by August 1, 1991.
13. The construction schedule submitted by Savanah (Attach-
ment 2) shall be substantially adhered to as determined by City'
staff.
14. Savanah shall post a cash bond or similar liquid
financial assurance in an amount no less than Four Million
Dollars ($4,000,000.00) to secure the demolition of the Ritz -
Carlton Hotel site. Savanah shall have thirty (30) days'from the
date of this decision to reach agreement with the City Attorney;
as to the form of such financial assurance. The financial
assurance, in a form satisfactory to the City Attorney, shall be
posted by Savanah no later than September 1, 1991. '
15. All fees owed to the City for the processing of any
land use application, including fees associated with Savanah's
petition for a Section M amendment, shall be paid by September 1,
1991.
16. Savanah shall have one (1) year from the date of
issuance of the demolition permit for the Grand Aspen Hotel to
5
� 1 #:335656 08/19/91 16:('-)l F' $60. t_ 0 E•�k:: 654 PG 429 j
'Silvia Davis, Fitkin -Cn Clerk, Doc ZOO
. i
reconstruct the eighteen (18) residential units previously
demolished pursuant to the subdivision development. This condi-
tion'shall constitute and be incorporated as a formal amendment
to Section L of the PUD Agreement.
17. Savanah shall comply with all representations and
conditions as contained in its letter dated May 1, 1991, exclue-
ing the construction schedule attached thereto, submitted by F.
Belz and J. Imbriani,.and addressed to the City Attorney (Attach-
ment 3 hereto).
18. Savanah shall acknowledge and agree to the transfer and
application by the City of some or all of the $535,000.00 pledged
o by Savanah to secure performance of the landscaping associated
with the Ritz- Carlton Hotel; ;(such- 'p %le'dge1' presently in the form of
an irrevocable letter of credit`,Citibank`Ref. 40051455) toward
the installation and completion of:.public,,'street, sidewalk, curb
and gutter improvements in th`e ; si-ib'diVi.jS 16hn in the ,event the hotel
is not completed and funds presently or.in„ the future to secure
such improvements are or becoine:insufficientto do so in the
0 opinion of the Public Works Director.
19. The effectiveness of the extensions as granted herein,
shall be contingent upon Savanah's compliance, as determined by
/-- the City Staff, with all of those conditions as set forth above.
In the event that.any condition as set forth above is not sub-
stantially complied with, then all extensions as granted herein
shall automatically be rendered invalid and such failure(s) to
�j comply shall constitute non - compliance with the First Amended and
Restated PUD /Subdivision Agreement. Savanah shall thereafter be
entitled to a hearing before City Council to determine sanctions
or penalties for its non - compliance, which may include the
revocation or. termination of any or all approvals contained in
the PUD Agreement:
(
Z� �
ATT , ST:
City Cle
Done this /D�Jday of
City Council of the City f Aspen
By
Mayor
9
/
AkI64 c_�7101/91 141.239 Rec SIC (_) Bi.`: 650 P 269
Silvia Davis, Pitkin Cnty Clerk, Doc $-00
BEFORE THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO
IN RE THE MATTER OF SAVANAH LIMITED PARTNERSHIP'S REQUEST FOR A
SECTION M AMENDMENT TO THE FIRST AMENDED AND RESTATED PLANNED
UNIT DEVELOPMENT /SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAIN
SUBDIVISION.
This matter is before the City Council upon the petition of
Savanah Limited Partnership ( "Savanah ") pursuant to Section M of
the First Amended and.Restated Planned Unit Development/Subdivi-
sion Agreement for the Aspen Mountain Subdivision ( "PUD Agree-
ment"), seeking certain extensions in the construction scheduling
for subdivision development. Pursuant to Savanah's petition, a
public hearing was convened upon notice on April 17, 1991, which
was continued for further proceedings to May 21st and 29th, 1991.
Savanah appeared, with legal counsel, and produced testimony and
other evidence in support of its petition. Additional testimony
and evidence on the matter was submitted by the City staff and
members of the public. Having heard all of the offered testimony
and argument and having reviewed the documentary evidence as
submitted and made part of the record herein, the City Council
finds as follows:
1. On March 15, 1991, Savanah submitted a written petition
to the City pursuant to Section M of the PUD Agreement seeking an
extension in the present construction schedule deadlines govern-
ing construction and development within the Aspen Mountain
Subdivision.
2. Section M of the PUD Agreement provides as follows in
its relevant part as pertinent hereto:
... the Owner or its successors or assigns may, on its
own initiative; petition the City Council for a vari-
ance, an amendment to this Agreement, or an extension
of one or more of the time periods required for perfor-
mance under the Construction Schedules or otherwise.
The City Council may grant such variances, amendments
to this Agreement, or extensions of time as it may deem
appropriate under the circumstances. The parties
expressly acknowledge and agree that the City Council
shall not unreasonably refuse-to extend the time peri-
ods for performance indicated in one or more of the
Construction Schedules if Owner demonstrates by a
preponderance of the evidence that the reasons for the
delay(s) which necessitate such extension(s) are beyond
#334164
07/01/91 14:39 Rec $6s � . i 1t 1 BI%. 654 F'G 274 i
,Silvia Davis, Pitk:in Cnty Clerk:, Doc_ $.00_____
the control of the Owner, despite good faith efforts on
its part to perform in a timely manner."
3. Savanah seeks extensions in the current construction
schedule deadlines as follows:
4. Savanah has alleged that the following facts and /or
circumstances have caused delays in the progress of construction
of the Ritz - Carlton Hotel component of the subdivision develop-
ment and that such facts and circumstances were beyond its
control:
(i) The Persian Gulf War and resulting adverse impact
on Savanah's principal financing resources situat-
ed in Saudi Arabia, including the non - liquidity
and non - transferability of Saudi Arabian currency.
(ii) The general economic slow down and recession im-
pacting the economy of the United States and,
particularly, the hotel and resort segment of
same.
5. City Council finds that Savanah has been able to
demonstrate by a preponderance of the testimony and evidence as
established in the record that the Persian Gulf War and its
resulting impact on the Saudi Arabian currency (riyal) has
adversely affected Savanah's ability to finance its construction
activities associated with the Aspen Mountain Subdivision and
that such factors have caused delays in the progress of construc-
tion that were beyond the control of Savanah despite its good
faith efforts to perform.
2
From
To
(i)
Certificate of Occupancy
Ice Rink /Park
10/1/91
10/1/92
(ii)
Certificate of:�Occupancy
Ritz - Carlton Hotel
10/1/91
10/1/92
(iii)
Building Permit Issuances
Ute City Place
10/1/91
4/1/92
(iv)
Certificate of Occupancy
Summit Place
8/1/92
8/1/93
(v)
Demolition Permit
Grand Aspen Hotel
10/1/94
10/1/95
4. Savanah has alleged that the following facts and /or
circumstances have caused delays in the progress of construction
of the Ritz - Carlton Hotel component of the subdivision develop-
ment and that such facts and circumstances were beyond its
control:
(i) The Persian Gulf War and resulting adverse impact
on Savanah's principal financing resources situat-
ed in Saudi Arabia, including the non - liquidity
and non - transferability of Saudi Arabian currency.
(ii) The general economic slow down and recession im-
pacting the economy of the United States and,
particularly, the hotel and resort segment of
same.
5. City Council finds that Savanah has been able to
demonstrate by a preponderance of the testimony and evidence as
established in the record that the Persian Gulf War and its
resulting impact on the Saudi Arabian currency (riyal) has
adversely affected Savanah's ability to finance its construction
activities associated with the Aspen Mountain Subdivision and
that such factors have caused delays in the progress of construc-
tion that were beyond the control of Savanah despite its good
faith efforts to perform.
2
Bt-
#334164 07/01/91 14:39 Rec $6� :�. i�c_� Nt: 650 F'G 271
Silvia Davis, Pitkin Cnty Clerk, Doc__t -00
6. City Council further finds that Savanah has not been
able to demonstrate by a preponderance of the testimony and other
evidence presented that general economic or recessionary condi-
tions existing in the United States economy have caused delays in
its construction activities or schedules associated with the
development of the subdivision, or that alleged adverse economic
conditions as may be affecting the project were the result of
facts or circumstances beyond Savanah's control.
7. City Council further finds that the testimony and other
evidence as reflected in the record before it establishes by a
preponderance that internal legal disputes and management dis-
agreements between the partners have exacerbated and contributed
to the delays in the project's construction schedules and that
such factors were within the control of Savanah.
8. The delaysin the construction schedules for the Ritz -
Carlton Hotel have and will cause significant disruption in the
City's downtown core area by extending construction activities
and the adverse traffic, dust, noise and visual impacts associat-
ed therewith.
9. The preponderance of the evidence presented by Savanah
does not demonstrate that Savanah will complete the construction
of the Ritz - Carlton Hotel, thus, warranting the imposition of
additional financial assurances upon Savanah to protect the City
and the citizens of Aspen from the adverse impacts of an unfin-
ished construction project.
NOW, THEREFORE, BASED UPON THE ABOVE AND FOREGOING, City
Council does hereby grant to Savanah Limited.Partnership the
following extensions to the construction schedule deadlines for
the Aspen Mountain Subdivision, which extensions shall be incor-
porated into a written amendment to the PUD Agreement pursuant to
Sections M and 0(6), subject to those terms and conditions as set
forth below:
EXTENSIONS
FROM TO
1. Certificate of Occupancy
Ice Rink /Park 10/1/91 10/1/92
2. Certificate of Occupancy
Ritz - Carlton Hotel 10/1/91 10/1/92
3. Building Permit Issuance
Ute City Place 10/1/91 4/1/92
3
1#314164 � � r c)1 /91 14:39 Rec $60.00 ELF-:: '
FG 2 ?2
'Silvia Davis, Pitk.in Cnty Clerk, Doc $_-,00 -_
4. Certificate of Occupancy
Summit Place 8/1/92 8/1/93
5. Demolition Permit for Lot 5
Grand Aspen Hotel 10/1/94 10/1/95
CONDITIONS
1. Savanah shall upgrade the entire exterior fence (with
screening) adjacent to the Ritz - Carlton Hotel construction site
and Ice Rink /Park site. With regard to the visual appearance of
the Ice Rink /Park parcel, the fence will be moved approximately
twenty feet to the South off of the Durant Street curb, and all
areas exterior to the fence, except for the parking lot, shall be
seeded. A gravel path shall also be installed in this area.
Fugitive mud and dust prevention measures will be utilized on
these sites. All construction materials stored on the Ice
Rink /Park site shall be removed from public view at street level.
All of these items shall be completed by August 1, 1991, and to
the satisfaction of the Public Works Director.
2. The construction entry to the Blue Spruce off of Durant
Street shall be cleaned up and not utilized for construction
activities and the site shall continue to be fenced (with screen-
ing). This shall be completed by September 1, 1991, and to the
satisfaction of the Public Works Director.
3. The Blue Spruce structure shall be cleared of construc-
tion materials and scaffolding shall be concealed from public
view at street level. These items shall be completed by Septem-
ber 1, 1991, and to the satisfaction of the Public Works Direc-
tor.
4. A safe pedestrian path shall be installed on the East
side of Mill Street between the Ritz - Carlton Hotel construction
site and the Grand Aspen Hotel. This shall be completed by July
1, 1991, and to the satisfaction of the Public Works Director.
5. Temporary patch work shall be installed on Mill Street
between the Grand Aspen Hotel and Ritz - Carlton construction site.
This work shall be completed by August 15, 1991, and to the
satisfaction of the Public Works Director.
6. Patch work on Dean Street shall be installed in front
of the Grand Aspen Hotel and shall be completed by July 1, 1991,
and to the satisfaction of the Public Works Director.
7. Bank stabilization on both the South and West sides of
the Ritz - Carlton Hotel construction site shall be completed by
4
} h t
/01/91 . 239 D
;Si l vi a Davis q Pit k: i n ry ec :Pou- 0 Bk:: 654 PS 273
_ - -- - Cnty C1er k:, Doc s. C)cj
September 1, 1991, and to the satisfaction of the Public Works
Director. '
8. Savanah shall apply for rezoning of the Ice Rink /Park
parcel to a "Park" zoning designation by July 1, 1991. If
Savanah does not apply for such rezoning, the City shall initiate
rezoning with all fees to be paid by Savanah.
9. Savanah shall submit a final development plan for the
Ice Rink /Park parcel to the City by September 25, 1991.
10. Savanah shall complete submission of all necessary
information for a "Number 1" building permit for the Ritz - Carlton
Hotel to the Building Department by July 8, 1991. A list of the
outstanding documents and /or information Savanah has yet to
provide the Building Department pursuant to its building permit
application is attached hereto as Attachment 1.
11. Savanah shall obtain and City shall issue the "Number
1" building permit by September 1, 1991, and all necessary fees
and applicable taxes shall be paid by Savanah at that time.
12. Savanah shall secure and fence Summit Place and remove
all debris from the site. The West wall shall also be repaired.
These items shall be completed by August 1, 1991, and to the
satisfaction of the Public Works Director. Alternatively,
Savanah may elect to demolish the Summit Place structures provid-
ed that said demolition is completed by August 1, 1991.
13. The construction schedule submitted by Savanah (Attach-
ment 2) shall be substantially adhered to as determined by City
staff.
14. Savanah shall post a cash bond or similar liquid
financial assurance in an amount no less than Four Million
Dollars ($4,000,000.00) to secure the demolition of the Ritz -
Carlton Hotel site. Savanah shall have thirty (30) days from the
date of this decision to'reach agreement with the City Attorney
as to the form of such financial assurance. The financial
assurance, in a form satisfactory to the City Attorney, shall be
posted by Savanah no later than September 1, 1991. '
15. All fees owed to the City for the processing of any
land use application, including fees associated with Savanah's
petition for a Section M amendment, shall be paid by September 1,
1991.
16. Savanah shall have one (1) year from the date of
issuance of the demolition permit for the Grand Aspen Hotel to
5
#334164 07/01191 14:39 Rec $60.00 Eck:: 650 PC 274
Silvia Davis_ Pitk:in Cnty Clerk., Doc x.0-0
reconstruct the eighteen (18) residential units previously
demolished pursuant to the subdivision development. This condi-
tion shall constitute and be incorporated as a formal amendment
to Section L of the PUD Agreement.
17. Savanah shall comply with all representations and
conditions as contained in its letter dated May 1, 1991, exclud-
ing the construction schedule attached thereto, submitted by F.
Belz and J. Imbriani, and addressed to the City Attorney (Attach-
ment 3 hereto).
18. Savanah shall acknowledge and agree to the transfer and
application by the City of some or all of the $535,000.00 pledged
by Savanah to secure performance of the landscaping associated
with the Ritz - Carlton Hotel (such pledge presently in the form of
an irrevocable letter of credit, Citibank Ref. 40051455) toward
the installation and completion of public street, sidewalk, curb
and gutter improvements in the subdivision in the event the hotel
is not completed and funds presently or in the future to secure
such improvements are or become insufficient to do so in the
opinion of the Public Works Director.
19. The effectiveness of the extensions as granted herein
shall be contingent upon Savanah's compliance, as determined by
the City Staff, with all of those conditions as set forth above.
In the event that any condition as set forth above is not sub-
stantially complied with, then all extensions as granted herein
shall automatically be rendered invalid and such failure(s) to
comply shall constitute non - compliance with the First Amended and
Restated PUD /Subdivision Agreement. Savanah shall thereafter be
entitled to a hearing before City Council to determine sanctions
or penalties for its non - compliance, which may include the
revocation or termination of any or all approvals contained in
the PUD Agreement.
ATT ST:
City ClerY
Done this /0'7—day J
of , 1991.
City Council of the City f Aspen
By: -
Mayor
C.
- Attachment 1
i
#:334164 c 7 /o1191 14:39 Rec $60.00 BK 650 PG 275
Silvia Davis, Pitkin Cnty Clerk:, Doc $.00
"NUMBER 1" BUILDING PERMIT
COMPLIANCE LIST
1. Hazardous material storage documentation in laundry and
maintenance areas.
2. Fire - resistive requirements and occupancy separation
documentation complying with Table 5 -B, Table 17 -A and Chapter 18
of the Uniform Building Code (1988 Edition).
3. U.L. roof assembly design complying with Table 17 -A and
Section 1806 of the Uniform Building Code (1988 Edition).
4. U.L. Fire Resistive Directory, January 1984 Edition.
5. One -hour fire - resistive door assembly documentation
complying with Section 503(c)4 of the Uniform Building Code (1988
Edition).
6. Entry level corridor construction and protected opening
documentation complying with Section 3305 of the Uniform Building
Code (1988 Edition).
7. Entry level door assembly documentation complying with
Section 3305(h) of the Uniform Building Code (1988 Edition) for
doors 149, 150, 143A and 143B.
8. Handicapped accessible design documentation for the
grille /bar area and lower level as depicted on Sheet A2.14, and
for water closets in the guest room and turning radius for the
employee locker rooms, complying with Colorado Revised Statute,
Title 9, Article 5 and ANSI A117.1.
9. Design documentation for the elevator lobby at the club
lounge complying with Section 1807(h) of the Uniform Building
Code (1988 Edition).;, .
##334'164 t-) r• /01 /91 14:39 Rec
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$60.00 BK 650 F'S 276
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• Attachment 3
#334164 07/01/91 14:39 Rec $60.00 BI-.: 650 PG 278
Silvia Davis, Pitk:in Cnty Cler•I•::, Doc $.00
_'Aspen
Holdings,
Inc.
May 1, 1991
Mr. Edward M. Caswall
City Attorney
City of Aspen
130 S. Galena
Aspen, CO 81611
Subject: The .Ritz - Carlton, Aspen
Section M Amendment Request
Edward M. Caswall letter of April 10, 1991
Dear Air. Caswall,
Based upon discussions at the City Council Meeting of April 17, 1991, on the referenced subject and
a meeting with the City staff on April 22, 1991, on the referenced subject, the following are our
comments on your letter of April 10, 1991.
In the City Council Meeting, the Owner of the Ritz- Carlton site, Savanah Limited Partnership,
presented their request for a one year extension of the completion date in the PUD for the Rit z- Carlton
Hotel. Savanah also stated that it is not, at this time, abandoning the project and is continuing
construction, albeit at a slower pace. Work on the site has not ceased, but has been adjusted pursuant
to this slower pace. The Partnership, at this time, does not envision a suspension of construction
activity. Therefore, in accord with our meeting, the following are our comments on each individual
item.
1. As part of continuing construction on the project, work on the shell of the hotel will occur.
(See attached Construction Schedule for the exact work and timing thereof.)
2. Most of the building materials at this time are stored inside of the hotel structure. The
remainder will be hidden from public view in their present location behind fencing -Aith
screening. Some of these materials are not within the hotel "structure.
3. The lower sump pumps will not require automatic activation as the construction workers Krill
monitor the level of the sump and pump it as required. This is the process that has been going
on throughout the construction of the hotel.
600 East Cooper Street Suite 200 Aspet: Colorado S1611 (303) 920 -4272 FAX: (303) 925-11387
•
#3:34164 07/01/91 140 '39 Rec $60.00 B : 654 PG 279 i
Silvia Davis, Pitkin Cnty Clerk:, Doc $.-0.0-
Caswell
Section M Amendment Request
Page two
5/1/91
4. See attached Construction Schedule for this work.
5. Openings will be protected during the continuing construction, according to OSHA requirements.
In addition, concrete work will be done on the "garage roof." This work will eliminate a lot of
the open, unsafe conditions on the hotel plaza area. The construction. cranes have been
removed.
6. The contractor will continue their temporary utility services as required for construction. Since
construction is continuing, a diagram illustrating utility systems on site at this interim stage
is not appropriate. As- built, underground utility drawings in public right of ways, have been
provided to Bob Gish. There-is one outstanding as -built that needs to be provided, and that .
will be provided within the next 30 days.
7. Temporary buildings, trailers and stored materials AU still be required since we are continuing
construction. Tlis includes those items on the Top of Mill Street and the Ice Rink parcel.
With regard to the visual appearance of the Ice Rink parcel, we propose moving the fence
approximately twenty feet to the South off the Durant street curb, provide seeding and a gravel
sidewalk in this area. In addition, the fence parallel to Durant street will be upgraded visually.
Fugitive mud and dust prevention measures have always been required of our contractor and
will be aggressively enforced.
8. Since we are continuing construction, there will be some temporary .construction welding,
shoring and bracing in place, but only as part of the construction work. It will not be left as
a permanent situation. Most of this temporary work will be eliminated by the construction that
is to take place over the next four months.
9. The items indicated under this request are not required since we are continuing construction.
10. Three of the four fire hydrants required by the PUD are installed and activated. For the fourth
one, see the attached Construction Schedule.
11. We intend to clean up and straighten up the security fence that is currently in place.
12. This work will take place with the normal sequence of construction. See the attached
Construction Schedule. It_ does not make sense to install curbs, gutters and sidewalks at this
time, as they will just be torn up by the continuing construction.
13. Jersey barriers will need to be maintained for public safety.
14. The Blue Spruce second level slab AU be poured within the next three months. This will
eliminate most of the debris, temporary scaffolding and form work. See the attached
Construction Schedule.
334164 0 /01/1 14:39 Rec $60.00 131," 650 PG' 280
Silvia Davis, Pitk:in Cnty Clerk:, Doc $.00 -
ied Caswell
Section M Amendment Request
Page three
5/1/91
15. The Grand Aspen Hotel will need to continue as a construction headquarters and housing
facility for the construction workers.
16. Summit Place AiR be properly secured and part of it will be fen ced to prevent any access. In
addition, all of the site will be cleaned up. Also, the, west wall. will be repaired and cleaned
up. Security persons from the Ritz - Carlton site will monitor the property tio' make sure that
unauthorized entry does not take place.
17. The Barbee parcel is currently fairly clean. Any minor clean up' will -tie takeii� care of. The
parcel currently has vegetation and ground cover.
18. The contractor will maintain the construction - signage, as required.
19. Dean Street in front of the Grand Aspen Hotel will be patched.
20. A set of sepia as- builts at this interim stage is not appropriate.
21. We know of no outstanding fees or bills due to the City at this time. We are researching one
bill for the Ice Rink that Amy Margerum pointed out in our meeting of April 22, 1991.
In addition, we are meeting with Tim Clarke of the Dolomites and Ralph Melville of the Mountain
Chalet to address some of their concerns. Other than the above items, we are not aware of any other
City requests with regard to construction work on the job site as part of our Section M Amendment
request. If there are others, please notify us immediately.
We understand the City's concern about the impact the project has had on the town of Aspen. In part,
that is why we have decided to continue construction, hopeful that we %&U proceed to complete the
project. Obtaining a one year extension for completion will facilitate our analysis and the opportunity
for completion of the project. Let us know if there is further information with which we supply you.
Thank you for your consideration.
Sincerely,
`''Ferdinan 111. Belz,:7II Joe Ymbriani
`�J .
cc: 1001 Inc. / HDC distribution AEh/ NEI distribution
Bob Hughes, Esq. Marc Hayutin, Esq.
APPROVED TO FORM:
`�6'j L
Attor ey of Savanah Limited
Partnership
STATE OF CALIFORNIA
County of Los Angeles
0
SAVANAH LIMITED PARTNERSHIP
By: ASPEN ENTERPRISES INTERNATION-
AL, INC.., General Partner
By :
ss.
18th The foregoing instrument was acknowledged before me this
day of July , 1991, by Charles E. Wallace ,
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires: July 7, 1995
OFFICIAL NOTARY SEAL
ANNE C. SAMSTAG
® Notary Public — Calitomia
LOS ANGELES COUNTY
*Comm. Expires JUL 07,1985
NootaaryC� (Public
Address
4
•
0
AMENDMENT TO THE FIRST AMENDED AND RESTATED
PLANNED UNIT DEVELOPMENT /SUBDIVISION
AGREEMENT FOR THE ASPEN MOUNTAIN SUBDIVISION
THIS AMENDMENT to.the First Amended and Restated Planned
Unit Development /Subdivision Agreement for the Aspen Mountain
Subdivision ( "PUD Agreement "), being entered into between the
City of Aspen, Colorado ( "City ") and Savanah Lim' ed Partnership
( "Savanah" or "Owner ") on this /D day of ,
1991, provides as follows:
R E C I T A L S
WHEREAS, on March 15, 1991, Savanah submitted a written
petition to the City pursuant to Section M of the PUD Agreement
seeking certain extensions in the construction schedule deadlines
governing construction and development within the Aspen Mountain
Subdivision; and
WHEREAS, hearings were conducted before the City Council on
April 17th, May 21st and 29th, 1991, during which Savanah suc-
cessfully demonstrated that the reasons necessitating extensions
in the existing construction schedule deadlines were beyond its
control; and
WHEREAS, Section M of the PUD Agreement authorizes exten-
sions of the time periods for construction schedules upon a
proper showing; and
WHEREAS, Section 0(6) of the PUD agreement authorizes
amendments to the Agreement by written instrument executed by the
parties thereto.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions as contained herein, it is agreed that the provisions
hereinbelow shall amend the PUD Agreement as follows:
1. Savanah's construction schedule
in Section A2 of the PUD Agreement, and as
that Section M amendment executed on June
Book 627 at Page 457 in the records of the
er)', are amended to provide as follows:
From
Certificate of occupancy
Ice Rink /Park 10/1/91
Certificate of occupancy
Ritz - Carlton Hotel 10/1/91
deadlines as set forth
previously amended by
11, 1990 (recorded in
Pitkin County Record-
To
10/1/92
10/1/92
Building permit issuance
0
Ute City Place
10/1/91
4/1/92
Certificate of occupancy
Summit Place
8/1/92
8/1/93
Certificate of occupancy
Ute City Place
6/1/93
same
Demolition permit for Lot 5
Grand Aspen Hotel
10/1/94
10/1/95
Building permit issuance
Top of Mill
10/1/95
same
Building permit issuance
Hotel Phase II
10/1/96
same
Certificate of occupancy
Top of Mill
6/1/97
same
Certificate of occupancy
Hotel Phase II, Lot 5
6/1/98
same
2. Section L of the PUD agreement is amended to provide as
a
follows:
"It is mutually acknowledged and verified between City and
Owner that pursuant to Municipal Code Section 24- 11.2(a),
Owner has the right, following their demolition, to recon-
struct within the Aspen Mountain PUD a total of 275 hotel
units and a total of 42 residential units. The original
location (source) of these reconstruction units is identi-
fied on the Schedule 9 update attached hereto and made apart
hereof by this reference. Furthermore, the City hereby
agrees and confirms that for the 18 previously demolished
residential units as identified on the Schedule 9 update
attached hereto, Owner shall have one (1) year from the date
of issuance of the demolition permit for the Grand Aspen
Hotel to reconstruct same."
(The Schedule 9 update is attached hereto and incorporated
herein as part of this Amendment.)
3. The amended construction schedule deadlines as provided
for in paragraph 1 above shall be and remain in force and effect
only insofar as Savanah complies with all of those terms and
conditions as set forth in that written decision of the City
2
Council of the City of Aspen attached hereto as Exhibit "1" and
incorporated herein, that was issued upon and in response to
Savanah's petition of March 15, 1991, seeking a Section M amend-
ment.
4. All other terms and conditions of the PUD Agreement and
the previous Section M amendment dated June 11, 1990, not incon-
sistent or superseded by this amendment, shall remain in full
force and effect.
5. This amendment document shall be promptly recorded in
the records of the Pitkin County Clerk and Recorder's office.
IN WITNESS WHEREOF, the parties have hereunto set their
signatures on the day and year as first written above.
THE CITY OF ASPEN
By
Mayor
ATTEST:
Kathryryjt. Koch, City Cler
APPROVED AS TO FORM:
City Attorney
STATE OF COLORADO )
) ss.
County of Pitkin )
The foregoing instrument was ackno ledged fo me this
day o LJ 1991, by L�tn
as Mayor an athryn S. Koch, City Clerk, of t ity of. spen,
Colorado.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
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'a
BEFORE THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO
IN RE THE MATTER OF SAVANAH LIMITED PARTNERSHIP'S REQUEST`,FOR A
SECTION M AMENDMENT TO THE FIRST AMENDED AND RESTATED PLANNED
UNIT DEVELOPMENT /SUBDIVISION AGREEMENT FOR THE ASPEN MOUNTAINk,,
SUBDIVISION.
This matter is before the City Council upon the petition of
Savanah Limited Partnership ( "Savanah ") pursuant to Section M of
the First Amended and'Restated Planned Unit Development/Subdivi-
sion Agreement for the Aspen Mountain Subdivision ( "PUD Agree-
ment"), seeking certain extensions in the construction scheduling
for subdivision development. Pursuant to Savanah's petition, a
public hearing was convened upon notice on April 17, 19.91, which
was continued for further proceedings to May 21st and 29th, 1991.
Savanah appeared, with legal counsel, and produced testimony and
other evidence in support of its petition. Additional testimony
and evidence on the matter was submitted by the City staff and
members of the public. Having heard all of the offered testimony
and argument and having reviewed the documentary evidence as
submitted and made part of the record herein, the City Council
finds as follows:
1. On March 15, 1991, Savanah submitted,a written petition
to the City pursuant to Section M of the PUD Agreement seeking an
extension in the present construction schedule deadlines govern-
ing construction and development within the Aspen Mountain
Subdivision.
2. Section M of the PUD Agreement provides as follows in
its relevant part as pertinent hereto:
... the Owner or its successors or assigns may, on its
own initiative, petition the City Council for a vari-
ance, an amendment to this Agreement, or an extension .
of one or more of the time periods required for perfor-
mance under the Construction Schedules or otherwise.
The.City Council may grant such variances, amendments
to this Agreement, or extensions of time as it may deem
appropriate under the circumstances. The parties
expressly acknowledge and agree that the City Council
shall not unreasonably refuse to extend the time peri-
ods for performance indicated in one or more of the
Construction Schedules if Owner demonstrates by a
preponderance of the evidence that the reasons for the
delay(s) which necessitate such extension(s) are beyond
• o
the control of the Owner, despite good faith efforts on
its part to perform in a timely manner."
3. Savanah seeks extensions in the current construction
schedule deadlines as follows:
4. Savanah has alleged that the following facts and /or
circumstances have caused delays in the progress of construction
of the Ritz - Carlton Hotel component of the subdivision develop-
ment and that such facts and circumstances were beyond its
control:
(i) The Persian Gulf War and resulting adverse impact
on Savanah's principal financing resources situat-
ed in Saudi Arabia, including the non - liquidity
and non - transferability of Saudi Arabian currency.
(ii) The general economic slow down and recession im-
pacting the economy of the United States and,
particularly, the hotel and resort segment of
same.
5. City Council finds that Savanah has been able to
demonstrate by a preponderance I of the testimony and evidence as
established in the record that the Persian Gulf War and its
resulting impact on the Saudi Arabian currency (riyal) has
adversely affected Savanah's ability to finance its construction
activities associated with the Aspen Mountain Subdivision and
that such factors have caused delays in the progress of construc-
tion that were beyond the control of Savanah despite its good
faith efforts to perform.
2
From
To
(i)
Certificate of Occupancy
Ice Rink /Park
10/1/91
10/1/92
(ii)
Certificate ofOccupancy
Ritz - Carlton Hotel
10/1/91
10/1/92
(iii)
Building Permit Issuances
Ute City Place
10/1/91
4/1/92
(iv)
Certificate of Occupancy
Summit Place
8/1/92
8/l/93
(v)
Demolition Permit
Grand Aspen Hotel
10/1/94
10/1/95
4. Savanah has alleged that the following facts and /or
circumstances have caused delays in the progress of construction
of the Ritz - Carlton Hotel component of the subdivision develop-
ment and that such facts and circumstances were beyond its
control:
(i) The Persian Gulf War and resulting adverse impact
on Savanah's principal financing resources situat-
ed in Saudi Arabia, including the non - liquidity
and non - transferability of Saudi Arabian currency.
(ii) The general economic slow down and recession im-
pacting the economy of the United States and,
particularly, the hotel and resort segment of
same.
5. City Council finds that Savanah has been able to
demonstrate by a preponderance I of the testimony and evidence as
established in the record that the Persian Gulf War and its
resulting impact on the Saudi Arabian currency (riyal) has
adversely affected Savanah's ability to finance its construction
activities associated with the Aspen Mountain Subdivision and
that such factors have caused delays in the progress of construc-
tion that were beyond the control of Savanah despite its good
faith efforts to perform.
2
I�
6. City Council further finds that Savanah has not been
able to demonstrate by a preponderance of the testimony and other
evidence presented that general economic or recessionary condi-
tions existing in the United States economy have caused delays in
its construction activities or schedules associated with the
development of the subdivision, or that alleged adverse economic
conditions as may be',affecting the project were the result of
facts.or circumstances beyond Savanah's control.
7. City Council further finds that the testimony and other
evidence as reflected in the record before it establishes by a
preponderance that internal legal disputes and management dis-
agreements between the partners have exacerbated and contributed
to the delays in the project's construction schedules and that
such factors were within the control of Savanah.
8. The delays:in the construction schedules for the Ritz -
Carlton Hotel have and will cause significant disruption in the.
City's downtown core area by extending construction activities
and the adverse traffic, dust, noise and visual impacts associat-
ed therewith.
9.. The preponderance of the evidence presented by Savanah
does not demonstrate that Savanah will complete the construction
of the Ritz - Carlton Hotel, thus, warranting the imposition of
additional financial assurances upon Savanah to protect the City
and the citizens of Aspen from the adverse impacts of an unfin-
ished construction project.
NOW, THEREFORE,,BASED UPON THE ABOVE AND FOREGOING, City
Council does hereby grant to Savanah Limited Partnership the
following extensions to the construction schedule deadlines for
the Aspen Mountain Subdivision, which extensions shall be incor-
porated into a written amendment to the PUD Agreement pursuant to
Sections M and 0(6), subject to those terms and conditions as set
forth below:
EXTENSIONS
FROM TO
1. Certificate of Occupancy
Ice Rink /Park 10/1/91 10/1/92
2. Certificate of Occupancy
Ritz- Carlton Hotel 10/1/91 10/1/92
3. Building Permit Issuance
Ute City Place 10/1/91 4/1/92
3
4. Certificate of Occupancy
Summit Place 8/1/92 8/1/93
5. Demolition Permit for Lot 5
Grand Aspen Hotel 10/1/94 10/1/95
CONDITIONS
l.. Savanah shall upgrade the entire exterior fence (with
screening) adjacent to the Ritz - Carlton Hotel construction site
and Ice Rink /Park site. With regard to the visual appearance of
the Ice Rink/Park-parcel, the fence will be moved approximately
twenty feet to the South off of ,,the Durant Street curb, and all
areas exterior to the fence, except for the parking lot, shall be
seeded. A gravel path shall also be installed in this area.
Fugitive mud and dust prevention measures will be utilized on
these sites. All construction materials stored on the Ice
Rink /Park site shall be removed from public view at street level.
All of these items shall be completed by August 1, 1991, and to
the satisfaction of the Public Works Director.
2. The construction entry to the Blue Spruce off of Durant
Street shall be cleaned up and not utilized for construction
activities and the site shall continue to be fenced (with screen-
ing). This shall.be completed by September 1, 1991, and to the
satisfaction of the Public Works Director.
3. The Blue Spruce structure shall be cleared of construc-
tion materials and scaffolding shall be concealed from public
view at street level. These items shall be completed by Septem-
ber 1, 1991, and to the satisfaction of the Public Works Direc-
tor.
4. A safe pedestrian path shall be installed on the East
side of Mill Street between the Ritz- Carlton Hotel construction
site and the Grand Aspen Hotel. This shall be completed by July
1, 1991, and to the satisfaction of the Public Works Director.
5. Temporary patch work shall be installed on Mill Street
between the Grand Aspen Hotel and Ritz - Carlton construction site.
This work shall be completed by August 15, 1991, and to the
satisfaction of the Public Works Director.
6. Patch work on Dean Street shall be installed in front.
,of the Grand Aspen Hotel and shall be completed by July 1, 1991,
and to the satisfaction of the Public Works Director.
7. Bank stabilization on both the South and West sides of
the Ritz - Carlton Hotel construction site shall be completed by
4
September 1, 1991, and to the satisfaction of the Public Works
Director.
8. Savanah shall apply for rezoning of the Ice Rink /Park
parcel to a ".Park" zoning designation by July 1, 1991. If
Savanah does not apply for such rezoning, the City shall initiate
rezoning with all fees to be paid by Savanah.
9. Savanah shall submit a final development plan for the
Ice Rink /Park parcel to the City by September 25, 1991.
10. Savanah shall - complete submission of all necessary
information for a "Number 1" building permit for the Ritz - Carlton
Hotel to the Building Department by.July 8, 1991. A list of the
outstanding documents and /or information Savanah has yet to
provide the Building Department pursuant to its building permit
application is attached hereto as Attachment 1.
11. Savanah shall obtain and City.shall issue the "Number
1" building permit by September 1, 1991, and all necessary fees
and applicable taxes shall be paid by Savanah at that time.
12. Savanah shall secure and fence Summit Place and remove
all debris from the site. The West wall shall also be repaired.
These items shall be completed by August 1, 1991, and to the
satisfaction of the Public Works Director. Alternatively,
Savanah may elect to demolish the Summit Place structures provid-
ed that said demolition is completed by August 1, 1991.
13. The construction schedule submitted by Savanah (Attach-
ment 2) shall be substantially adhered to as determined by City
staff.
14. Savanah shall post a cash bond or.similar liquid
financial assurance in an amount no less than Four Million
Dollars ($4,000,000.00) to secure the demolition of the Ritz -
Carlton Hotel site. Savanah shall have thirty-(30) days from the
date of this decision to reach agreement with the City Attorney
as to the form of such financial assurance. The financial
assurance, in a form.satisfactory to the City Attorney, shall be
posted by Savanah no later than September 1, 1991. '
15. All fees owed to the City for the processing of any
land use application, including fees associated with Savanah's
petition for a Section M amendment, shall be paid by September 1,
1991.
16. Savanah shall have one (1) year from the date of-
issuance of the demolition permit for the Grand Aspen Hotel to
5
reconstruct the eighteen (18) residential units previously
demolished pursuant to the subdivision development. This condi-
tion shall constitute and be incorporated as a formal amendment
to Section L of the PUD Agreement.
17. Savanah shall comply with all representations and
conditions as contained in its letter dated May 1, 1991, exclud-
ing the construction schedule attached thereto, submitted by F.
Belz and J. Imbriani, and addressed to the City Attorney (Attach-
ment 3 hereto).
18. Savanah shall.acknowledge and agree to the transfer and
application by the City of some or all of the $535,000.00 pledged
by Savanah to secure performance of the landscaping associated
with the Ritz- Carlton Hotel (such pledge presently in the form of
an irrevocable letter of credit, Citibank Ref. 40051455) toward
the, installation and completion of public street, sidewalk, curb
and gutter improvements in the subdivision in the event the hotel
is not completed and funds presently or.in the future to secure
such improvements are or become insufficient to do so in the
opinion of the Public Works Director.
19. The effectiveness of the extensions as granted herein
shall be contingent upon Savanah's compliance, as determined by
the City Staff, with all of those conditions as set forth above.
In the event that any condition as set forth above is not sub-
stantially complied with, then all.extensions as granted herein
shall automatically be rendered invalid and such failure(s) to
comply shall constitute non- compliance with the First Amended and
Restated PUD /Subdivision Agreement. Savanah shall thereafter be
entitled to a hearing before City Council to determine sanctions
or penalties for its non - compliance, which may include the
revocation or termination of any or all approvals contained in
the PUD Agreement.
ATT ST:
City Cle
Done this /d-/'-'Jday of 1991.
City Council of the City f Aspen
By:
Mayor
11
. .
"NUMBER 1" BUILDING PERMIT
COMPLIANCE LIST
1. Hazardous material storage documentation in laundry and
maintenance areas.
2. Fire - resistive requirements and occupancy separation
documentation complying with Table 5- B,.Table 17 -A and Chapter 18
of the Uniform Building Code (1988 Edition).
3. U.L. roof assembly design complying with Table 17 -A and
Section 1806 of the Uniform Building Code (1988 Edition).
4. U.L. Fire Resistive Directory, January 1984 Edition.
5. One -hour fire - resistive door assembly documentation
complying with Section 503(c)4 of the Uniform Building Code (1988
Edition).
6. Entry level corridor construction and protected opening
documentation complying with Section 3305 of the Uniform Building
Code (1988 Edition).
7. Entry level door assembly documentation complying with
Section 3305(h) of the Uniform Building Code (1988 Edition) for
doors 149,150, 143A and 143B.
8. Handicapped accessible design documentation for the
grille /bar area and lower level as depicted on Sheet A2.14, and
for water closets in the guest room and turning radius for the
employee locker rooms, complying with Colorado Revised Statute,
Title 9, Article 5 and ANSI A117.1.
9. Design documentation for the elevator lobby at the club
lounge complying with Section 1807(h) of the Uniform Building
Code (1988 Edition)._
u
•
Attachment 2
RITZ— CARLTON ASPEN
. 1991 06 06
Page 1 of 2
PS910005
REV. JUNE D, 1991 CONSTRUCTION SCHEDULE - — LEGEND
SAVANAH, LTD. PARTNERSHIP Planned
ASPEN, COLORADO 5 Day work weak
1991 1992
J F M A IA J J A S 0 N D J F M A 1A J J A S 0 N D
OBTAIN FINAL BUILDING PERMIT
OBTAIN FINAL ELECTRICAL PERMIT
—�
OBTAIN FINAL MECAHNICAL PEF31AIT
!
OBTAIN FINAL PLUMBING PERMIT
BANK STABILIZATION
COMPLETE BACKFILL
+
)
ENTRY LEVEL SLAB (COIAPLETE)
BALLROOM ROOF STRUCTURE ( COMPLETE►
PARKING GARAGE ROOF STRUCTURE
BUILDING A STRUCTURE (COMPLETE)
I
BUILDING B STRUCTURE
!!
BLUE SPRUCE FOUNDATION (COMPLETE)
BLUE SPRUCE STRUCTURE
BUILDING A SHELL
COMPLETE BUILDING A SHELL
BUILDING B SHELL
i
BLUE SPRUCE SHELL
REMOVE CRANES (COMPLETE)
MEP ROUGH IN BUILDING A
MEP ROUGH IN BUILDING B
MEP ROUGH IN BLUE SPRUCE
j
MEP ROUGH IN PUBLIC AREAS
INTERIOR FINISH BUILDING A
INTERIOR FINISH BUILDING B
i
El
C]
DPW II IA1t= R 1 Da'1
RITZ— CARLTON ASPEN I
1991 06 06
Page 2 of 2
•PSS1000b
SAVANAH, LTD. PARTNERSHIP LEGEND
Planned
ASPEN, COLORADO s Day work week
1891 1992
_J1 F fA i A' M J J A S O N D J F M A fd J J A S O 4 U
INTERIOR FINISH BLUE SPRUCE —�
r
INTERIOR FINISH PUBLIC AREAS
SIl E1A'ORK
LANDSCAPING
RI1Z-CARLTON COMMISSION BUILDING A
RITZ- CARLTON COMMISSION BUILDING B
RITZ- CARLTON COMMISSION BLUE SPRUCE
RITZ- CARLTOI! COMMISSION PUBLIC AREAS
ICE RINK CLEAN UP
ICE RINK CONSTRUCTION
SUMMIT PLACE SECURE AND CLEAN UP
DEAN STREET PATCH AND CLEAN UP
MILL STREET WORK
—
t
,
—
—
t
—
--
—
—I
-
-
Attachment 3
IW7
respell
Holdings,
Irc.
May 1, 1991
Mr. Edward M. Caswall
City Attorney
City of Aspen
130 S. Galena
Aspen, CO 81611
Subject: The Ritz - Carlton, Aspen
Section M Amendment Request
Edward M. Caswall letter of April 10, 1991
Dear Air. CaswaL,
Based upon discussions at the City Council Meeting of April 17, 1991, on the referenced subject and
a meeting with the City staff on April 22, 1991, on the referenced subject, the following are our
comments on your letter of April 10, 1991.
In the City Council Meeting, the Ova ner of the Ritz- Carlton site, Savanah Limited Partnership,
presented their request for a one year extension of the completion date in the PUD for the Ritz- Carlton
Hotel. Savanah also stated that it is not, at this time, abandoning the project and is continuing
construction, albeit at a slower pace. Work on the site has not ceased, but has been adjusted pursuant
to this slower pace. The Partnership, at this time, does not envision a suspension of construction
activity. Therefore, in accord with our meeting, the following are our comments on each individual
item.
1. As part of continuing construction on the project, work on the shell of the hotel will occur.
(See attached Construction- Schedule for the exact work and timing thereof.)
2. Alost of the building materials at this time are stored inside of the hotel structure. The
remainder will be hidden from public view in their present location behind fencing with
screening. Some of these materials are not within the hotel structure.
3. The lower sump pumps will not require automatic activation as the construction workers will
monitor the level of the sump and pump it as required. This is the process that has been going
on throughout the construction of the hotel.
600 East Cooper Street Suite 200 Aspen ColoiAo 81611 (303) 925 -9272 FAX: (303) 925.9357
d ,J Caswell
Section M Amendment Request
Page two
5/1/91
4. See attached Construction Schedule for this work.
5. Openings will be protected during the continuing construction, according to OSHA requirements.
In addition, concrete work Hill be done on the "garage roof." This work will eliminate a lot of
the open, unsafe conditions on the hotel plaza area. The construction cranes have been
removed.
6. The contractor will continue their temporary utility services as required for construction. Since
construction is continuing, a diagram illustrating utility systems on site at this interim stage
is not appropriate. As -built, underground utility drawings in public right of ways, have been
provided to Bob Gish. There is one outstanding as -built that needs to be provided, and that
will be provided within the next 30 days.
7. Temporary buildings, trailers and stored materials Kill still be required since we are continuing
construction. This includes those items on the Top of Null Street and the Ice Rink parcel.
With regard to the visual appearance of the Ice Rink parcel, we propose moving the fence
approximately twenty feet to the South off the Durant street curb, provide seeding and a gravel
sidewalk in this area In addition, the fence parallel to Durant 'street will be upgraded visually.
Fugitive mud and dust prevention measures have always been required of our contractor and
.rill be aggressively enforced.
8. Since we are continuing construction, there will be some tempora- v construction welding,
shoring and bracing in place, but only as part of the construction work. It will not be left as
a permanent situation. Most of this temporary work will be eliminated by the construction that
is to take place over the next four months.
9. The items indicated under this request are not required since we are continuing construction.
10. Three of the four fire hvdrants required by the PUD are installed and activated. For the fourth
one, see the attached Construction Schedule.
11. We intend to clean up and straighten up the security fence that is currently in place.
12. This work will take place with the normal sequence of construction. See the attached
Construction Schedule. It does not make sense to install cw bs, gutters and sidewalks at this
time as they will just be torn up by the continuing construction.
13. Jersey barriers will need to be maintained for public safety.
14. The Blue Spruce second level slab %NUI be poured within the next three months. This will
eliminate most of the debris, temporary scaffolding and form work. See the attached
Construction Schedule.
i eu Caswell
Section M Amendment Request
Page three
5/1/91
15. The Grand Aspen Hotel will need to continue as a construction headquarters and housing
facility for the construction workers.
16. Summit Place Kill be properly secured and part of it will be fenced to prevent any access. In
addition, all of the site µill be cleaned up. Also, the west wall will be repaired and cleaned
up. Security persons from the Ritz - Carlton site will monitor the property to make sure that
unauthorized entry does not take place.
17. The Barbee parcel is currently fairly clean. Any minor clean up will be taken care of. The
parcel currently has vegetation and ground cover.
18. The contractor will maintain the construction signage, as required.
19. Dean Street in front of the Grand Aspen Hotel All be patched.
20. A set of sepia as- builts at this interim stage is not appropriate.
21. We know of no outstanding fees or bills due to the City at this time. We are researching one.
bill for the Ice Rink that Amy Margerum pointed out in our meeting of April 22, 1991.
In addition, we are meeting kith Tim Clarke of the Dolomites and Ralph Melville of the Mountain
Chalet to address some of their concerns. Other than the above items, we are not aware of any other
City requests with regard to construction work on the job site as part of our Section M Amendment
request. If there are others, please notify us immediately.
We understand the City's concern about the impact the project has had on the town of Aspen. In part,
that is why we have decided to continue construction, hopeful that we Kill proceed to complete the
project. Obtaining a one year extension for completion will facilitate our analysis and the opportunity
for completion of the project. Let us know if there is further information with. which we 'supply you.
Thank you for your consideration.
Sincerely,
1
rdinand.'L. Betz, /IE Joe Ymbri nj
cc: 1001 Inc. / HDC distribution AEh/ NEI distribution
Bob Hughes, Esq. Marc Hayutin, Esq.
AMENDMENT TO THE FIRST AMENDED AND RESTATED
PLANNED UNIT DEVELOPMENT /SUBDIVISION
AGREEMENT FOR THE ASPEN MOUNTAIN SUBDIVISION
THIS AMENDMENT to the First Amended and Restated Planned
Unit Development /Subdivision Agreement for the Aspen Mountain
Subdivision ( "PUD Agreement "), being entered into between the
City of Aspen, Colorado ( "City ") and Savanah Lim' ed Partnership
( "Savanah" or "Owner!') on this /0 day of ,
1991, provides as follows:
R E C I T A L S
WHEREAS, on March 15, 1991, Savanah submitted a written
petition to the City pursuant to Section M of the PUD Agreement
seeking certain extensions in the construction schedule deadlines
governing construction and development within the Aspen Mountain
Subdivision; and
WHEREAS, hearings were conducted before the City Council on
April 17th, May 21st and 29th, 1991, during which.Savanah suc-
cessfully demonstrated that the reasons necessitating extensions
in the existing construction schedule deadlines were beyond its
control; and
WHEREAS, Section M of the PUD Agreement authorizes exten-
sions of the time periods for construction schedules upon a
proper showing; and
WHEREAS, Section 0(6) of the PUD agreement authorizes
amendments to the Agreement by written instrument executed by the
parties thereto.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions as contained herein, it is agreed that the provisions
hereinbelow shall amend the PUD Agreement as follows:
1. Savanah's construction schedule deadlines as set forth
in Section A2 of the PUD Agreement, and as previously amended by
that Section M amendment executed.on June 11, 1990 (recorded in
Book 627 at Page 457 in the records of the Pitkin County Record -
er), are amended to provide as follows:
Certificate of occupancy
Ice Rink /Park
From
10/1/91
To
10/1/92
Certificate of occupancy
Ritz - Carlton Hotel 10/1/91 .10/1/92
Building permit issuance
Ute City Place 10/1/91 4/1/92
Certificate of occupancy
Summit Place 8/1/92 8/1/93.
Certificate of occupancy
Ute City. Place 6/1/93 same
Demolition permit for Lot 5
Grand Aspen Hotel' 10/1/94 10/1/95
Building permit issuance
Top of Mill 10/1/95 same
Building permit issuance
Hotel Phase II 10/1/96 same
Certificate of occupancy
Top of Mill 6/1/97 same
Certificate of occupancy
Hotel Phase II, Lot 5 6/1/98 same
2. Section L of the PUD agreement is amended to provide as
follows:
"It is mutually.acknowledged and verified between City and
Owner that pursuant to Municipal Code Section 24- 11.2(a),
Owner has the right, following their demolition, to recon-
struct within the Aspen Mountain PUD a total of 275 hotel
units and a total of 42 residential units. The original
location (source) of these reconstruction units is identi-
fied on the Schedule 9 update attached hereto and made apart
hereof by this reference. Furthermore, the City hereby
agrees and confirms that for the 18 previously demolished
residential units as identified on the Schedule 9 update
attached hereto, Owner shall have one (1) year from the date
of issuance of the demolition permit for the Grand Aspen
Hotel to reconstruct same."
(The Schedule 9 update is attached hereto and incorporated
herein as part of this Amendment.)
3. The amended construction schedule deadlines as provided
for in'paragraph 1 above shall be and remain in force and effect
only insofar as Savanah'complies with all of those terms and
conditions as set forth in that written decision of the City.
2
0
Council of the City of Aspen attached hereto as Exhibit 111" and
incorporated herein, that was issued upon and in response to
Savanah's petition of March 15, 1991, seeking a Section M amend-
ment.
4. All other terms and conditions of the PUD Agreement and
the previous Section M amendment dated June 11, 1990, not incon-
sistent or superseded by this amendment, shall remain in full
force and effect.
5. This amendment document shall be promptly recorded in
the records of the Pitkin County Clerk and Recorder's office.
IN WITNESS WHEREOF, the parties have hereunto set their
signatures on the day and year as first written above.
THE CITY OF ASPEN
ay
Mayor
ATTEST:
Kathryn,//t. Koch, City Cler
APPROV AS TO FORM:
City Attorney
STATE OF COLORADO )
) ss.
County of Pitkin )
The foregoing instrument was ackno ledged .efore me this
day ofr LJ , 1991, by �.
as Mayor and/ athryn S. Koch, City Clerk, of the City of 'Aspen,
Colorado.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
Notary ub is
Address /.
3
[A
APPROVED AS TO FORM:
Attorney of Savanah Limited
Partnership
C7
SAVANAH LIMITED PARTNERSHIP
By: ASPEN ENTERPRISES INTERNATION-
AL, INC., General Partner
By:
STATE OF )
ss.
County of )
The foregoing instrument was acknowledged before me this
day of , 1991, by
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
Notary Public
Address
4
Revised 5/24/91
SCHEDULE 9 UPDATE
Residential and Lodge Unit Verification
ASPEN MTN
NUMBER
OF UNITS
SUBDIVISN
DEMOL-
DATE REMAIN-
UNITS
TO BE
EXPIRATION
OF
PROJECT
LOT N0.
LEGAL / ADDRESS
OT TAL
Si HED
DEMO'd ING
RECONSTRUCTED
RECONSTRUCTION
Residential Units:
A.
Blue Spruce Lodge, North
1
Lots A -D, Block 84, Townsite
2
2
07/03/85
0
lot
3
& 5
See
Note
3
Wing
(303 East Durant Avenue)
® B.
North Aspen Inn Apartments
1
Lots 7 & 8, Stock 3, Connors
6
6
07/03/85
0
Lot
3
& 5
See
Note
3
Addition (711 South Mill Street)
1
Lots 11 & 12, Block.3, Connors--*,
1
1
04/15/85
0
Lot
3
& 5
See
Note
3
Addition (300 East Juanita St.)
(320 East Juanita Street)
1
1
04/15/85
0
Lot
3
& 5
See
Note
3
C.
Hillside Lodge
61
Lots A & B. Block 91, Townsite
14
14
10/15/90
0
Lot
3
& 5
See
Note
2
(403 East Durant Avenue)
D.
Townplace
61
Lot C, Block 91, Townsite
4
4
10/15/90
0
lot
3
& 5
See
Note
2
(409 East Durant Avenue)
E.
Chase
61
Lots D through I, Block 91,
2
2
10/15/90
0
lot
3
& 5
See
Note
2
Townsite (415 East Durant Avenue)
F.
Paas
5
Lot K, Block 91, Townsite
2
2
04/15/85
0
Lot
3
& 5
See
Note
3
(602 South Milt Street)
G.
Melville #2
5
Lots 17 & 18, Block 2, Dean's
1
1
04/15/85
0
lot
3
& 5
See
Note
3
Addition (680 S. Mill Street)
H.
Black
3
Lots 3, 4 & 5, Capitol Hill
2
-
--
2
Lot
3
& 5
See
Note
2
Addition (918 S. Mill Street) .
I.
Summit Place
2
2
-
--
2
Lot
2
See
Note
2
J.
Previously Demolished:
700 Galena
4
lots 16 & 17, Anthony Acres
3
3
Reconstructed
0
Lot
3
& 5
See
Note
3
(700 South Galena Street)
as 4 -plex with
4 GMGS units
Snowchase
3
Lots 16 & 17, Capital Hill Addn.
1
1
06/81
0
Lot
3
or 5
See
Note
3
3
Lot 21, Capitol Hill Addition
1
1
Pre 1981
0
lot
3
or 5
See
Note
3
.
42
38
4 .
D. Previously Demolished:
Blue Spruce Lodge, South 1 Lots 1 -5, Block 2, Connors Addn. 17 17 07/03/85? 0 Lot 1 See Note 2
Wing (300 East Lawn Street) 275 116 159
1 NOTES• `
1 Lot 6 is the proposed lot for the park to be subdivided from Lot 5.
2 Pursuant to Municipal Code Section 24- 11.2(x), the owner has the right following their demolition, to reconstruct within the Aspen Mountain PUD,
the verified total within five (5) years of the date of demolition.
3 The owner shall have a one -year period for reconstruction of the 18 previously demolished residential units, commencing on the date of demolition
permit for demolition of Grand Aspen Hotel on Lot 5.
ctc /dm.sched9
ASPEN MTN
NUMBER
OF UNITS
SUBDIVISN
DEMOL-
DATE
REMAIN-
UNITS TO BE
EXPIRATION OF
PROJECT
LOT NO,
LEGAL / ADDRESS
TOTAL
Si HED
DEMO'd
ING
RECONSTRUCTED
RECONSTRUCTION
Lodge
Units:
A.
Blue Spruce Lodge, North
1
Lots A through D, Block 84,
15
15
07/03/85
0.
Lot 1
See Note 2
Wing
Townsite (303 East Durant Ave.)
B.
Aspen Inn
1
Lot 6, Block 1, Connors Addition
65
65
04/10/85
0
Lot 1
See Note 2
Lots 1 -3, Dean's Addn & lots 1-6,
Block 3, Connors Addition.
07/03/85
(611 South Mill Street)
C.
Contential
5
Lots L -S, Block 91, Townsite &
178
19
--
159
Lot 1 & 5
See Note 2
Lots 1-3, Block 1, Anthony Acres
Addn (515 East Dean Street)
D. Previously Demolished:
Blue Spruce Lodge, South 1 Lots 1 -5, Block 2, Connors Addn. 17 17 07/03/85? 0 Lot 1 See Note 2
Wing (300 East Lawn Street) 275 116 159
1 NOTES• `
1 Lot 6 is the proposed lot for the park to be subdivided from Lot 5.
2 Pursuant to Municipal Code Section 24- 11.2(x), the owner has the right following their demolition, to reconstruct within the Aspen Mountain PUD,
the verified total within five (5) years of the date of demolition.
3 The owner shall have a one -year period for reconstruction of the 18 previously demolished residential units, commencing on the date of demolition
permit for demolition of Grand Aspen Hotel on Lot 5.
ctc /dm.sched9
REVOCABLE LICENSE TO USE PROPERTY�,�
THIS LICENSE is granted by James E. Pavisha, Receiv-
er, doing business as Aspen Hospitality Services ( "Receiver "),
to the City of Aspen ( "City "), with reference to the following:
RECTTAT,S
1. Pursuant to the Order of the Pitkin County.
District Court entered in proceedings styled In the Matter of
the Application of Commerce Savings Association for an Order
Authorizing the Public Trustee of the County of Pitkin, State
of Colorado, to Sell Certain Real Estate Under a Power of Sale
Contained in a Deed of Trust, Civil Action No. 86CV42 ( "Fore-
closure Proceedings "), Receiver is the court appointed receiver
of, among other properties, the real property described on
Exhibit "A" heretp annexed ( "Property ") with the authority in
respect thereof to " * * * do anything necessary to preserve,
maintain,.lease, manage and operate * * * the same.
2. - -The Property forms a part of the Aspen Mountain
Subdivision and Planned Unit Development as shown on the plat
thereof recorded in Plat Book 17 at Page 99, et sect., and
according to the Planned Unit Development and Subdivision
Agreement therefor recorded in Book 500 at Pages 656, et seq.,
and as such is to be utilized in connection with the develop-
ment of a multi -room hotel upon the completion of the Foreclo-
sure Proceedings.
3. The Property has in the past been utilized on an
informal basis and without the formal approval thereof or
consent thereto having ever been given by Receiver, or his
predecessors, as a parking area for the public at large.
4. Receiver had recently determined and had so
advised City that it was, in his estimation, advisable to
secure the Property and to prevent members of the public at
large from utilizing it for parking.
5. City has expressed an interest in maintaining
and has requested that the Property be maintained for public
parking purposes on an interim short -term basis in order to
help alleviate the ever - present problem of offstreet parking in
the City and, upon -the terms and conditions herein set forth,
Receiver is willing to accommodate City's request.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the mutual
covenants and upon the terms and conditions herein contained,
Receiver hereby grants unto City the revocable right and
license to use the Property for the purposes of public off -
street parking; provided that:
A. City will at its cost and expense do and under-
take all that in the circumstances may be necessary (i) to
render the Property suitable for safe, convenient public
parking, including without limitation grading, snow plowing,
the installation of necessary snow fencing, securing any unsafe
areas on the Property from public (including vehicular and
pedestrian) access, and the like; and (ii) to administer the
Property and the orderly use thereof by the public at large ill
a manner consistent, at a minimum, with the administration of
the City owned public parking facilities on the Rio Grande
property, including without limitation the posting of signage,
the towing of vehicles, the. promulgation and enforcement of
customary rules and regulations governing the public's use of
the Property and the adoption and implementation of incidental
security measures against vandalism and personal injury;
B. The Property will be accessed by the public only
from Mill and Monarch Streets and at such access points thereon
to be agreed upon between City and Receiver;
C. City shall, up to the limit of its general
public liability insurance coverage presently in force (which
has been represented to Receiver as being *IA21 42=22) , save,
defend, indemnify and hold Receiver, the fee owner of the
Property and Commerce Savings Association absolutely harmless
and blameless from and against any and all claims, demands,
liabilities or obligations of any kind or nature, regardless of
how well- founded and by whomsoever asserted occasioned by or
resulting or emanating in any manner from the negligence of the
City in operating the Property for public parking, including
claims for personal injury, property damage, or otherwise, or
for any other claims for damages to person or property to which
Receiver, Commerce Savings Association or the fee owner of the
Property may be held to account by reason of any imputed
responsibility or vicarious liability not involving their own
active wrongdoing. Additionally, City shall include Receiver,
the fee owner of the Property and Commerce Savings Association
as additional insureds under its general public liability
insurance policy presently in force and shall during the term
of this License to Use maintain in full force and effect a
general liability insurance policy(ies) with coverages equal to
those ineffect under its current general.. public liability
insurance, as represented above.
D. This License to Use may, by Receiver, be revoked
at any time construction on the Property or site preparation
work for the Property is about to commence, and if not sooner
revoked will be deemed automatically revoked upon the sooner to
occur of the termination of Receiver's appointment as receiver
and the performance of his duties as such, the sale of the
*$150,000.00 per person, $400,000.00 per occurrence pursuant to
24 -10 -114, C.R.S.q,�e -2-
Property to any third party or the resumption of control of the
Property by its fee owner.
IN WITNESS WHEREOF, this License to Use has been
granted by Receiver and, by its signature below, the terms and
conditio4s hereof have been accepted by the City of Aspen as of
the /7t day of,-/� , 1986.
JAMES E. PAVISHA, RECEIVER,
d /b /a ASPEN HOSPITALITY
SE ES //
By RV 1515- &7 Zr
Ames E. Pavisha, Receiver
THE CITY OF ASPEN
ATTEST:
City ClerV Mayor
t
IS OF COLORADO )
ss.
COUNTY OF PITKIN )
The forego' g instrument was acknowledged before me
this J%4-� day of , 1986, by JAMES E. PAVISHA,
RECE1,VER, d /b /a ASPENV HOSPITALITY SERVICES, by James E.
) Fa'visha, Receiver.
(SEAL)
WITNESS my hand and official seal.
My commission expires: 9�a�i�BY
Notar Public,
STATE OF COLORADO )
COUNTY OF PITKIN )
The forego: g instrument was acknowledcred e ore me
this day of '�` 1986, by� (� 7 i4,l v
as Mayor and by - as City Clerk of t
City of Aspen, r
WITNESS my hand and offi ial seal.
My commission expires : ,,,j�,'` wq /
(SEAL)'
ji
ota'
ff
Public
rwh22.64
=I!