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RESOLUTION NO. <g?
(SERIES OF 2001)
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AN RESOLUTION AUTHORIZING THE SALE BY THE CITY OF ASPEN OF
A PORTION OF THE PROPERTY KNOWN AS TRUSCOTT PLACE;
APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF
CERTAIN DOCUMENTS IN CONNECTION THEREWITH; AND
PROVIDING THE EFFECTIVE DATE HEREOF.
WHEREAS, the City of Aspen (the "City"), in the County of Pitkin and State of
Colorado, is a legally and regularly created, established, organized and existing municipal
corporation under the provisions of Article XX of the Constitution of the State of Colorado and
the home rule charter of the City (the "Charter"); and
WHEREAS, under the Charter, the City is possessed of all powers which are necessary,
requisite or proper for the government and administration of its local and municipal matters, all
powers which are granted to home rule municipalities by the Colorado Constitution, and all
rights and powers that now or hereafter may be granted to municipalities by the laws of the State
of Colorado; and
WHEREAS, pursuant to Section 13.4 of the Charter, the City may not "sell, exchange or
dispose of public building, utilities or real property in use for public purposes . . . without first
obtaining the approval of a majority of the electors voting thereon"; and
WHEREAS, the City desires to sell, a portion of the property known as Truscott Place
(the "Propetty," as further defined in the Sale and Purchase Agreement defined in Section I of
, this Resolution") to Truscott Phase II, LLLP, a Colorado limited liability limited partnership (the
"Partnership"), to be used as affordable housing for residents of the City, and to execute, deliver
and perform the obligations under the documents relating to such sale described in Section I of
this Resolution; and
WHEREAS, at an election held on May 8, 2001, a majority of City electors voting
thereon approved the sale of the Property; and
WHEREAS, the construction and acquisition of the Property was initially financed from
proceeds of the City's General Obligation Housing Bonds, Series 1989A, which bonds were
subsequently defeased and refunded by the application of the proceeds of the City's General
Obligation Housing Refunding Bonds, Series 1993A (the "1993A Bonds"); and
WHEREAS, the City intends that the interest on the 1993A Bonds continue to be
excluded from the gross income of the holders thereoffor federal income tax purposes; and
WHEREAS, in furtherance of such intent, the City intends to deposit an amount equal to
the sale price of the Property into an escrow account established by an Escrow Agreement to be
dated as of August _' 2001 (the "Escrow Agreement") between the City and [ESCROW
AGENT], as escrow agent, which amount shall be withdrawn solely to be applied to Qualifying
Projects (as defined in the Escrow Agreement);
02-94911.01
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS
FOLLOWS:
Section 1. The City Council of the City (the "City Council") hereby approves the
following documents, copies of which have been made available to the City Council, authorizes
the Mayor, the City Clerk and other officers and employees of the City to execute and deliver,
and to affix the seal of the City to, such documents in the form made available to the City
Council, with such changes therein, not inconsistent herewith, as are approved by the persons
executing the same, and authorizes and directs the performance by the City of its obligations
under such documents in the form in which they are executed and delivered:
(a) the Agreement for Sale and Purchase of Real Estate dated August _,
2001 (the "Sale and Purchase Agreement") between the City, as seller, and the
Partnership, as buyer;
(b) the General Warranty Deed dated August _' 2001 from the City, as
grantor, to the Partnership, as grantee;
. (c) the Escrow Agreement dated as of August _,2001 between the City and
[ESCROW AGENT], as escrow agent;
(d) The Lease Termination Agreement dated August _' 2001 between the
City and the Aspen/Pitkin County Housing Authority; and
(e) The Subordination Agreement dated August _, 200 I of the City.
Section 2. The City Council hereby approves and authorizes the identification of the
City as the payee or beneficiary of the following, copies of which has been made available to the
City Council, with changes therein, not inconsistent herewith, as are approved by the City
Attorney:
(a) the Promissory Note made by the Partnership in favor of the City on
August_, 2001; and '
(b) the Deed of Trust dated August -,2001 granted by the Partnership to the
Public Trustee of Pitkin County, Colorado, for the benefit of the City.
Section 3. The City Council hereby authorizes the sale of the Property to the Partnership
pursuant to the General Warranty Deed described in Section I above.
Sectien 4. The City Council hereby adopts, as if set forth in full herein, all the
representations, covenants, agreements, findings, determinations and statements of or by the City
set forth in the documents described in Section 1 above.
Section 5. The officers and employees of the City are authorized and directed to take all
action necessary or appropriate to carry out the provisions of this Resolution and the documents
referred to herein and to carry out the transactions described herein or in such documents,
02-94911.01
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including, without limitation, the execution and delivery of any certifications that may
reasonably be required for the closing of the sale authorized in Section 3 hereof.
Section 6. All action previously taken by the City Council and the officers and
employees of the City Council directed toward the transactions described herein or in the
documents referred to herein and not inconsistent herewith are hereby ratified, approved and
confirmed.
Section 7. All bylaws, orders, resolutions and other instruments, or parts thereof, that are
in conflict with this Resolution are hereby repealed only to the extent of such conflict. This
repealer shall not be construed to revive any bylaw, order, resolution, or other instrument, or part
thereof, heretofore repealed.
Section 8. If any section, paragraph, clause or provision of this Resolution or any of the
documents referred to herein shall for any reason be held to be invalid or unenforceable, the
invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any
of the remaining provisions of this Resolution.
Section 9. This Resolution shall be in full force and effect upon its passage and adoption.
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02-94911.01
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ADOPTED AND APPROVED at its regular meeting on August 13,2001 by the City
Council.
[SEAL]
Attest:
BY~~1ia.c
02-94911.01
4
,
AGREEMENT FOR SALE AND PURCHASE OF REAL ESTATE
BETWEEN
CITY OF ASPEN, COLORADO, AS "SELLER"
AND
TRUSCOTT PHASE n, LLLP, AS "PURCHASER"
TABLE OF CONTENTS
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Purchase and Sale...........................................................................................................1
Purchase Price and Payment...........................................................................................1
Title Status and Insurance...............................................................................................1
Purchaser's Right to Approve....... .......... .............. ........................................ ............ ......2
Inspection....................................................................................................................... 3
Lease Termination..........................................................................................................3
Representations and Warranties of Seller ........................................................................3
Repre~entations and Warranties of Purchaser ...............................................................A
r;- No Other Warranties or Representations.........................................................................4
'Special Taxing District................................................................................................... 5
No Real Estate Broker ........ ........... ..... ........ .................... ... ... ............... .... ...... ....... ..........5
Survival.......................................................................................................................... 5
Binding Effect; Assignment............................................................................................ 5
Seller's Use of the Property Prior to Closing Date ..........................................................5
Notices........................................................................................................................... 6
Closing Date................................................................................................................... 7
Closing........................................................................................................................... 7
Prorations....................................................................................................................... 8
Condemnation................................................................................................................ 8
Remedies........................................................................................................................ 9
Relationship of Parties. ..................................................................................;................ 9
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General.........................................................................................................................:. 9
Exhibit A Legal Description
Exhibit B Lease Termination Agreement
02-92667.03
City of Aspen. ColoradolTruscott Phase II, LLLP
Purchase and Sale Agreement
AGREEMENT FOR SALE AND PURCHASE OF REAL ESTATE
BETWEEN
CITY OF ASPEN, COLORADO, AS "SELLER"
AND
TRUSCOTT PHASE n, LLLP, AS "PURCHASER"
THIS AGREEMENT ("Agreement") is entered into as of the \L.\ ~ day of
~ 2001 ("Effective Date"), by and between the City of Aspen, Colorado, a municipal
corporation ("Seller") and TRUSCOTT PHASE IT, LLLP, a Colorado limited liability limited
partnership ("Purchaser").
The parties hereto agree as follows:
1. Purchase and Sale.
Seller shall sell to Purchaser and Purchaser shall purchase from Seller, subject to the
terms and conditions hereinafter set forth, the real property situated within the County of Pitkin,
State of Colorado, more particularly described on Exhibit A attached hereto and incorporated
herein by reference, together with all structures and improvements thereon, and together with all
easements, rights-of-way, privileges, appurtenances and rights to the same belonging to and
inuring to thelbenefit of the above-described real estate (the "Property"), also known as 22475
State Highway 82, Aspen, Colorado 81611.
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2. Purchase Price and Payment.
The price for which Seller shall sell the Property to Purchaser, and which Purchaser shall
pay to Seller is Two Million Nine Hundred Thousand Dollars ($2,900,000.00) ("Purchase
Price"). At the Closing, subject to the full and timely performance by Seller of its obligations
hereunder, Purchaser shall pay to Seller the total Purchase Price (as adjusted for closing
prorations), in cash or certified funds or other collected funds (U.S. currency) or by wire transfer
of U.S. currency through the U.S. Federal Reserve System to a bank designated by Seller on or
before Closing.
3. Title Status and Insurance.
A. Title Insurance. Within seven (7) days after the Effective Date, Seller
shall deliver to Purchaser a title insurance commitment (the "Title Commitment") with respect to
the Property issued by a title insurance company mutually acceptable to Seller and Purchaser
("Title Insurance Company") committing to insure title to the Property in Purchaser's name
subject only to the Permitted Exceptions, as hereinafter defined, in a face amount equal to the
Purchase Price, together with copies of the recorded documents listed as exceptions t~ title in the
Title Commitment. As soon as possible after Closing, as hereinafter defined, Seller shall cause
to be delivered to Purchaser, at Seller's cost and expense, an owner's title insurance policy
("Title Policy") insuring the title of Purchaser to the Property in accordance with the Title
Commitment. The Title Policy shall provide for deletion of the standard pre-printed title
exceptions, provided that Seller shall have no obligation with respect thereto other than to
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Purchase and Sale Agreement
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execute a lien affidavit in form acceptable to Seller and to provide the Title Insurance Company
with the Survey as hereinafter provided.
B. Survev. Within seven (7) days after the Effective Date, Seller shall deliver
to Purchaser a survey of the property prepared by a surveyor licensed in the State of Colorado,
which shall meet ALTAlACSM survey requirements ("Survey"). The Survey shall be certified
to Purchaser, Seller and the Title Insurance Company. Seller shall bear the expense of
preparation of the Survey.
C. Permitted Exceptions. The "Permitted Exceptions" shall mean:
(i) Those matters of record set forth on the Title Commitment and
those matters set forth on the Surveyor apparent upon an inspection of the Property which are
not objected to by Purchaser or which are cured, insured over or otherwise approved or deemed
approved as provided in paragraph 3.Dhereof;
(ii) Real property taxes or assessments for the year of Closing not yet
due and payable;
(iii) Building, zoning and other applicable ordinances and regulations
of the City of Aspen ("City"), the County of Pitkin, and any other governmental agency having
jurisdiction over the Property;
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(iv) Such other matters as are caused by Purchaser or its agents; and
Exception.
(v) Any other item designated in this Agreement as a Permitted
D. Title Commitment and Survev Review Period. Purchaser shall have until
fifteen (15) days after delivery of the last to be delivered of the Title Commitment and the
Survey ("Review Period") to examine the Title Commitment and the Survey and to object in
writing to any matters reflected thereon. If the Title Commitment or the Survey shows any lien,
encumbrance, exception, defect in or any other Title matter which is unacceptable to Purchaser
("Defect"), Purchaser shall give written notice thereof ("Defect Notice") to Seller prior to
expiration of the Review Period, unless Purchaser is willing to waive the Defect. Purchaser's
failure to object to any title matters in a Defect Notice shall constitute Purchaser's acceptance of
such matters.
Within ten (10) days after Purchaser gives any Defect Notice, Seller and Purchaser shall
mutually agree upon corrective action and the time period within which such corrective action
shall occur, and in the event the Parties are unable to agree upon such corrective ac!ion within
ten (10) days after the date of the Defect Notice, or in the event Seller gives written notice to
Purchaser within such ten (10) day period that Seller does not wish to take corrective action
("Decision"), this Agreement shall be terminated, become null and void and of no further force
or effect as provided in paragraph 4 hereof; unless prior to expiration of such Decision,
Purchaser delivers to Seller a written notice waiving such Defect.
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City of Aspen, Coloradorrruscott Phase II, LLLP
Purchase and Sale Agreement
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4. Purchaser's Right to Approve.
Purchaser's obligation to purchase the Property pursuant to the terms of this Agreement
is specifically conditioned upon Purchaser's approval of the Property, in Purchaser's sole
discretion. At any time prior to the expiration of forty-five (45) days from the Effective Date
(the "Contingency Period"), if Purchaser determines that the Property is unsuitable for its
purposes, for any reason, Purchaser shall give notice to Seller of Purchaser's election to
terminate this Agreement and in such event this Agreement shall be terminated, become null and
void and of no further force and effect whatsoever. In such event, both parties hereunder shall be
released from any further obligation (except Purchaser's agreement to indemnify Seller pursuant
to paragraph 5 hereof). If Purchaser does not deliver such notice to Seller as provided herein,
Purchaser shall be deemed to have waived this condition precedent.
5. Inspection.
Purchaser shall have the right, during the Contingency Period, at Purchaser's sole cost
and expense to inspect the Property, including without limitation, making any and all
investigations and tests Purchaser deems appropriate and evaluating all aspects of the Property;
provided, however, any such inspections shall:
(i) Occur only after verbal notice to Seller; and
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.. (ii) Be conducted in such a manner so as not to interfere with Seller's
use of the Property. All inspections shall occur at reasonable times agreed upon by Seller and
. Purchaser, and shall be subject to reasonable rules, regulations, standards and conditions as
Seller may impose.
Purchaser shall indemnify, hold harmless and defend Seller and the Property from any
liability or damages and from any claim, liability, loss, damage, cost or expense, including
reasonable attorneys fees which Seller may incur or which may be asserted by reason of any
entry on the Property by, through or under Purchaser prior to Closing. Seller will use its
reasonable effortsto transmit to Purchaser a copy of any lien notice. In the event any mechanic's
or materialman's lien is filed against the Property, arising by, through or under Purchaser,
Purchaser shall cause such lien to be removed and released within sixty (60) days of notice from
Seller that a lien has been filed against the Property. In the event Purchaser cannot effect such
removal within said sixty (60) day period, Seller may, at Purchaser's expense, with the assistance
of attorneys of Seller's choosing, enter into, defend, prosecute or pursue any effort or action
(whether or not litigation is involved) which Seller deems necessary to defend itself and the
Property from all claims or liability arising by, through or under Purchaser as set forth above.
6.
Lease Termination.
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The Property is currently subject to that certain Lease Agreement between Seller and the
Aspen/Pitkin County Housing Authority (the "APCHA"), dated August 1, 1989 (the "Lease"). It
shan be a condition precedent to Purchaser's obligation to purchase the Property, that Seller and
APCHA execute a lease termination agreement in substantially the form of the lease termination
agreement attached hereto as Exhibit B and incorporated by this reference herein.
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City of Aspen. ColoradolTruscott Phase II, LLLP
Purchase and Sale Agreement
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7. Representations and Warranties of Seller.
Seller represents and warrants to Purchaser, as of the date of this Agreement and as of the
Closing Date, the following:
A. The execution and delivery by Seller of and Seller's performance under
this Agreement are within Seller's powers and have been duly authorized by all requisite action;
B. To the best of Seller's actual knowledge, there are no actions, suits or
proceedings pending or threatened against the Property or Seller which would affect the Property
or this Agreement;
C. Except as otherwise may be specifically provided for herein or in the
closing documents, Seller has not made any representations, warranties or agreements to or on
behalf of Purchaser as to any matter concerning the Property, the present use thereof or the
suitability of Purchaser' s intended use of the Property;
The foregoing warranties shall survive Closing for six (6) months only. In the event that
any of the foregoing representations or warranties become inaccurate after the date hereof and
prior to Closing, Seller shall promptly notify Purchaser and Purchaser's only remedy shall be to
terminate this Contract.
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8. Representations and Warranties of Purchaser.
Purchaser represents and warrants to Seller as of the date of this Agreement and as of the
Closing, the following:
A. The consummation of the transaction contemplated herein and the
fulfillment of the terms hereof will not result in a breach of any of the terms or provisions of, or
constitute a default under any agreement, document or charter to which Purchaser is a party or by
which it is bound, or any order, rule or regulation of any court or of any regulatory body or any
administrative agency or any other governmental body having jurisdiction over the Purchaser, its
properties or business; and no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transaction contemplated
herein.
B. This Agreement and all agreements, instruments and documents herein
provided to be executed by Purchaser are duly executed by and are binding upon Purchaser.
9. No Other Warranties or Representations.
PURCHASER DOES HEREBY WAIVE AND SELLER DOES HEREBY 'DISCLAIM
ALL WARRANTIES OF ANY KIND OR TYPE WHATSOEVER WITH RESPECT TO THE
PROPERTY, WHETHER EXPRESSED OR ~LIED, INCLUDING, BY WAY OF
DESCRIPTION BUT NOT LIMITATION; THOSE OF MARKETABILITY,
MERCHANTABILITY, HABITABILITY AND USE. The parties acknowledge that the
Purchaser is conducting its own independent investigation as to the condition of the Property.
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city of Aspen, ColoradolTruscott Phase II. LLLP
Purchase and Sale Agreement
4
Purchaser is purchasing the Property "as is" and is not relying upon any representations,
warranties, or guaranties of Seller except as expressly contained in this Agreement.
10. Special Taxing District.
SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION
INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX
LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY
OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL
LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH
DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A
DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN
MILL LEVIES. THE PARTIES HERETO SHOULD INVESTIGATE THE DEBT
FINANCING REQUIREMENTS OF THE AUTHORIZED GENERAL OBLIGATION
INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICT
SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN
SUCH MILL LEVIES.
11. No Real Estate Broker.
Purchaser and Seller represent and warrant to one another that no broker, person or entity
is entitled to a commission, finder's fee or other compensation arising from this transaction, and
each ,party hereby agrees to indemnity, defend and hold the other party harmless from and
. against 'any and all claims, loss or damage relating to or arising out of any claim for commission,
finder's fee or other compensation by any broker, person or entity claiming by or through such
indemnifying party.
12. Survival.
All warranties, representations, covenants, obligations and agreements contained in this
Agreement shall survive the execution and delivery of this Agreement and of any and all
documents or instruments delivered in connection herewith and shall survive the Closing
hereunder and the transfer and conveyance of the Property hereunder and any and all
performances in accordance with this Agreement.
13. Binding Effect; Assignment.
This Agreement shall be binding upon and inure to the benefit of the parties hereto, and
their respective heirs, personal representatives, successors, and assigns; provided, however, that
Purchaser shall not assign. its interest in this Agreement without the prior written consent of
W~ '
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14. SeDer's Use of the Property Prior to Closing Date.
From and after the date hereof, Seller shall not grant or convey any easement, lease,
license, permit or any other legal or beneficial interest in or to the Property without giving prior
written notice to Purchaser. Seller shall do or cause to be done all things reasonably within its
control to preserve unimpaired, any and all rights of way, easements, grants, appurtenances,
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City of Aspen. Coloradofrruscott Phase II, LLLP
Purchase and Sale Agreement
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privileges and licenses in favor of or constituting any portion of the Property. Further, Seller
shall payor cause to be paid, as and when due, all payments on any and all taxes, assessments
and levies in respect of the Property through the Closing and any and all bills incurred by Seller
through the Closing. Seller shall take no affirmative action to create a violation of any laws,
ordinances, rules, regulations and orders (including, but not limited to, those relating to zoning,
building, fire, health and safety and environmental control and protection) of any government or
any agency, body or subdivision thereof, ora!l standards and regulations of appropriate
supervising Board of Fire Underwriters and similar agencies, bearing on construction, operation,
or use of the Property or any part thereof during the pendency of this Agreement.
15. Notices.
Any notice, demand or document which any party is required or any party desires to give
or deliver to or make upon any other party shall, in the case of a notice or demand, be in writing,
and may be personally delivered, delivered by Federal Express or other nationally recognized
courier service guaranteeing overnight delivery, or given or made by United States registered or
certified mail, return receipt requested, with postage prepaid, or transmitted by facsimile,
addressed as follows: .
To Seller:
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l City of Aspen, Colorado
Attn: City Manager
130 South Galena Street
Aspen, Colorado 81611
Fax: <nO .'iZO' 511 "f
Phone: 'l1o..\'Z..o. S'ZOS
With a copy (which shall not constitute notice) to:
Kutak Rock LLP
Attn: Michael R. Johnson, Esq.
717 17th Street, Suite 2900
Denver, Colorado 80202
Fax: (303) 292-7799
Phone: (303) 297-2400
To Purchaser:
TRUSCOTT PHASE II, LLLP
Attn: ~~. ~t~
~50. \-1...6. ~~8.-
-k!.f~~, LlJ fS tin U
Fax: c;\10.q~ .S"S't>O
Phone: 'nO' q"Z..O. sosE>
02-92667.03
City of Aspen. ColoradnlTruscott Phase II. LLLP
Purchase and Sale Agreement
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With a copy (which shall not constitute notice) to:
Faegre & Benson LLP
Attn: William Callison, Esq.
370 17th Street, Suite 2500
Denver, Colorado 80202
Fax: (303) 820-0600
Phone: (303) 592-9000
subject to the right of any party to designate a different address for itself by notice similarly
given. Any such notice, demand or. document so given, delivered or made by registered or
certified mail, or transmitted by facsimile as aforesaid, shall be deemed to be given, delivered or
made (a) upon receipt of the same by the party or parties to whom the same is to be given,
delivered or made, if delivered personally, (b) the next business day if deposited with Federal
Express or other nationally recognized courier service guaranteeing overnight delivery, or (c) 48
hours after being deposited in the U.S. mail, postage prepaid, or (d) upon facsimile transmission
with receipt by the sending party of electronic confirmation of transmission.
16. Closing Date.
The Closing, as defined in paragraph 17 below, shall occur on or before
September 15\ 2001, or such earlier date upon which the parties may mutually agree.
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17. Closing.
The sale and purchase herein provided shall be consummated through a closing
conference (the "Closing") which shall be held on the Closing Date at 10:00 a.m. (Denver,
Colorado time) at the offices of Title Insurance Company or such other time and place upon
which the parties may mutually agree. The procedure followed by the parties in connection with
the Closing shall be as follows:
A. All documents to be recorded and funds to be delivered hereunder shall be
delivered to the Title Insurance Company in escrow, to hold, deliver, record and disburse in
accordance with escrow instructions, the form and content of which shall be agreed to by the
parties prior to Closing.
B. At the Closing or sooner as otherwise stated in the escrow instructions, the
following shall occur:
(i) Seller shall deliver or cause to be delivered in accordance with the
escrow instructions:
"
(a) General Warranty Deed conveying the Property to Purchaser,
duly executed and acknowledged by Seller, in proper form generally in use in Colorado,
subject only to the Permitted Exceptions.
(b) The Lease Termination as provided in paragraph 6, duly
executed by Seller and APCHA.
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Purchase and Sale Agreement
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(c) A Certification of Non-Foreign Status pursuant to Section 1445
of the U.S. Internal Revenue Code of 1986, as amended, and the Regulations thereunder.
(d) All other documents required to be executed by Seller pursuant
to the terms of this Agreement.
(ii)
the escrow instructions:
Purchaser shall deliver or cause to be delivered in accordance with
(a) The Purchase Price as provided in paragraph 2.
(b) All other documents required to be executed by Purchaser
pursuant to the terms of this Agreement.
C. Purchaser and Seller shall each deliver to the other two executed copies of
the Purchaser's and Seller's Statement of Settlement setting forth all prorations, disbursements of
the Purchase Price, and expenses of the Closing.
D. Seller shall, whenever and as often as it shall be reasonably requested so to
do by Purchaser, and Purchaser shall, whenever and as often as it shall be reasonably requested
so to do by Seller, execute, acknowledge, and deliver, or cause to be executed, acknowledged, or
delivered, any and all such further conveyances, assignments, confirmations, satisfactions,
releas$.s, instruments, or other documents as may be necessary, expedient or proper, in order to
. complete any and all conveyances, transfers, sales and assignments herein provided and to do
any and all other acts and to execute, acknowledge and deliver any and all documents as so
requested in order to carry out the intent and purpose of this Agreement.
E. Purchaser and Seller shall share equally any closing or escrow charges of
the Title Insurance Company.
18. Prorations.
The following prorations shall be made between Seller and Purchaser as of the Closing
Date:
A. Real propertv taxes and assessments on the PropertY for the year of
Closing. In the event that as of the Closing Date the actual tax bills for the year or years in
question are not available and the amount of taxes to be prorated cannot be ascertained, then the
most recent known rates, millages and assessed valuations shall be used, and when the actual
amount of taxes and assessments for the year or years in question shall be determinable, then
such taxes and assessments will be adjusted between the parties to reflect the actual amount of
such taxes and assessments. . ,"
B. Other Closing Costs. Other closing costs shall be apportioned between the
parties in accordance with the normal and customary practice of commercial real estate
transactions in the Aspen, Colorado area.
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Purchase and Sale Agreement
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19. Condemnation.
A. In the event that any portion of the Property shall be taken in
condemnation or under the right of eminent domain after the date of Seller's execution hereof
and before the Closing Date, which taking reduces the existing approved density for the Property
or otherwise materially adversely affects the implementation of Purchaser's development plan,
Purchaser may elect either:
(i) To declare this Agreement null and void and any Earnest Money
Deposit paid hereunder shall then immediately be returned to Purchaser; or
(ii) The proceeds received from such condemnation or right of eminent
domain proceeding shall be applied against and dollar for dollar reduce the Purchase Price
hereunder.
B. In the event that any portion of the Property shall be taken in
condemnation or under the right of eminent domain after the date of Seller's execution hereof
and before the Closing Date, which taking does not reduce the existing approved density for the
Property or does not otherwise materially adversely affect the implementation of Purchaser's
development plan, this Agreement shall remain in full force and effect and the proceeds received
from such condemnation or right of eminent domain proceeding shall be applied against and
dollar for dolfar reduce the Purchase Price hereunder.
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.2.0. Remedies.
Time is of the essence hereof If any payment due hereunder is not paid, honored, or
tendered when due, or if any other obligation hereunder is not performed as herein provided,
there shall be the following remedies:
A. If Purchaser is in default, then all things of value received hereunder shall
be forfeited by Purchaser and retained on behalf of Seller and both parties shall thereafter be
released from all obligations hereunder. It is agreed that such payments and things of value are
liquidated damages and are Seller's sole imd only remedy for Purchaser's failure to perform the
obligations of this Agreement. Seller expressly waives the remedies of specific performance and
additional damages.
B. If Seller is in default: (a) Purchaser may elect to treat this Agreement as
terminated, in which case all things of value received hereunder shall be returned to Purchaser
and Purchaser may recover such damages as may be proper; or (b) Purchaser may elect to treat
this Agreement as being in full force and effect and Purchaser shall have the right to an action for
specific performance or damages, or both, and any other remedy which may be avliilable at law
or in equity.
21. Relationship of Parties.
Notwithstanding anything in this Agreement to the contrary, this Agreement shall not be
construed as making Purchaser or Seller the partner, agent or joint venturer of the other and the
02-92667.03
City of Aspen, ColoradolTroscott Phase II, LLLP
Purchase and Sale Agreement
9
parties shall have no relationship to each other, other than as set forth herein as vendor and
vendee of real property.
22. General.
A. Entire Agreement. This Agreement contains the entire agreement between
the parties respecting the matters herein set forth and supersedes all prior agreements, whether
written or oral, between the parties respecting such matters. Any amendments or modifications
hereto in order to be effective shall be in writing and executed by the parties hereto.
B. Time of Essence. Time is of the essence in the performance of each and
every term, condition, and covenant of this Agreement.
C. CountelJ)arts. This Agreement may be executed in any number of
counterparts which together shall constitute the contract of the parties.
D. Paragraph Headings. The paragraph headings herein contained are for
purposes of identification only arid shall not be considered in construing this Agreement.
E. No Merger. The provisions hereof which require performance after
Closing shall survive the Closing and delivery of the deed hereunder and shall not be merged
therein.l
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F. Attorneys' Fees. The prevailing party in any legal proceeding brought to
enforce rights hereunder shall recover from the other party its reasonable attorneys' fees and
costs. As used herein the term "prevailing party" means the party entitled to recover costs in any
suit, whether or not brought to judgment, and whether or not incurred before or after the filing of
suit.
G. Waiver. Except as herein expressly provided, no waiver by a party of any
breach of this Agreement or of any warranty or representation hereunder by another party shall
be deemed to be a waiver of any other breach of any kind or nature (whether preceding or
succeeding and whether or not of the same or similar nature), and no acceptance of payment or
performance by a party after any such breach by another party shall be deemed to be a waiver of
any further breach of this Agreement or of any representation or warranty hereunder by such
other party whether or not the first party knows of such a breach at the time it accepts such
payment or performance. No failure on the part of a party to exercise any right it may have by
the terms hereunder or by law upon the default of another party, and no delay in the exercise
thereof by the first party at any time when such other party may continue to be so in default, shall
operate as a waiver of any default, or as a modification in any respect of the provisions of this
Agreement. .
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H. Gender. Whenever the singular or plural number, masculine or feminine
or neuter gender is used herein, it shall equally include the other.
I. Time Computations. In computing a period of days for performance or
payment as provided hereunder, the first day shall be excluded and the last day shall be included.
If the last day of any such period is a Saturday, Sunday or legal holiday, the period shall extend
02-92667.03
City of Aspen, Co1orado!fltlScott Phase II. LLLP
Purchase and Sale Agreement
10
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to include the next day which is not a Saturday, Sunday, or legal holiday. Any performance or
payment which must be taken or made under this Agreement must be taken or made prior to 5 :00
p.m. (Denver, Colorado time) of the last day of the applicable period provided hereunder for
such action, unless another time is expressly specified. All references to time shall be Denver,
Colorado time. If a date for performance or payment falls on a holiday or weekend, the time for
performance or payment shall be extended to the next business day, and if performance or
payment has occurred on such weekend or holiday, it shall be deemed to have occurred on the
next business day.
J. Exhibits. Any and all exhibits attached or to be attached hereto are hereby
incorporated and made a part ofthis Agreement by reference.
K. Governin~ Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Colorado.
L. No Recording. This Agreement shall not be recorded and any recording
of this instrument shall be void.
[END OF DOCUMENT TEXT]
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02-92667.03
City of Aspen, Coloradotrruscott Phase II. LLLP
Purchase and Sale Agreement
II
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
PURCHASER:
S-A:?h~ 1tJ..~
Date:E!~ I
TRUSCOTT PHASE n, LLLP,
a Colorado limited liability limited partnership
BY~-
Name: e:...~~~~
Tit!, "'-V ' . 3:;;i~e.-~""'-
SELLER:
-~
CITY OF ASPEN, COLORADO,
.~~O"
By: (/I(:."..J
Name: ~7!.. - H. tI_.....r-k
Title: Co 7 ~-~
~ ~~) Z/7t1l
Date Executed
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...
02.92667.03
City of Aspen, ColoradolTruscott Phase II, LLLP
Purchase and Sale Agreement
12
EXHmIT A
LEGAL DESCRIPTION
Lot 3, the Aspen Golf Course Subdivision, as shown on the plat
thereof, recorded in Plat Book 7, at Page 34, Pitkin County
records.
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02-92667.03
City of Aspen. ColoradolTruscott Phase II, LLLP
Purchase and Sale Agreement
A-I
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EXHmIT B
LEASE TERMINATION AGREEMENT
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02-92667.03
City of Aspen, Cnloradorrruscott Phase II, LLLP
Purchase and Sale Agreement
D-l
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AMENDMENT TO LEASE AGREEMENT
DATED AUGUST 1, 1989 BY AND BETWEEN
,
THE CITY OF ASPEN,'COLORADO, LESSOR,
AND
THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY, LESSEE
This AMENDMENT TO LEASE AGREEMENT is made as of the ~ day of
S~lH-A' ,2001, by and among the City of Aspen, Colorado, a municipal corporation
("Lessor"), and the Aspen/Pitkin County Housing Authority of Pitkin County, Colorado
("Lessee").
RECITALS
WHEREAS, . the City of Aspen, Colorado (".Lessor") and the Aspen/Pitkin. County
Housing Authority ("Lessee") entered into a Lease Agreement dated August 1, 1989, for
Truscott Place, Buildings 100, 200 and 300, the legal description of which is Lots 2 and 3, The
Aspen Golf Course Subdivision, as shown on the Third Amended Plat thereof recorded in Plat
Book 56 at Page 74 of the records of Pitkin County, Colorado; and
~
. WHEREAS, Lessor wishes to terminate the lease as to Lot 3, Aspen Golf Course
Subdi\1i~ion (Buildings 200 and 300) so that such property may be sold to Truscott Phase II,
tLLP, for affordable housing purposes; and
300).
WHEREAS, the Lessee agrees to the termination of its lease of Lot 3 (Buildings 200 and
WITNESSETH
NOW,THEREFORE, in consideration for the mutual obligations contained herein,
Lessor and Lessee, each intending to be legally bound, hereby mutually covenant and agree as
follows:
. 1. Effective upon and after the date of the sale of Lot 3 (Buildings 200 and 300) to
Truscott Place IT, LLLP, the Lease shall be amended, and Lessor and Lessee shall be
unequivocally and irrevocably released from all of the terms, conditions and obligations of the
Lease as related to Lot 3, the Aspen Golf Course Subdivision, that accrue from and after the
Effective Time as to Lot 2 (Building 100), the Lease shall remain in full force and effect.
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2. The Lessor and Lessee state that no default exists under the Lease on the part of
any party to the Lease and that all of the obligations under the Lease have been performed.
3, The parties have the full power and authority to execute and deliver this
Agreement and no other approval, consent or acknowledgement of any other party or entity is
required in connection with this Agreement.
F:\Files\APCHA\Truscott Place\Amendment to Lease Agmt 091201
4. Notwithstanding any provision ,contained herein, the event that the transaction
referred to above is not consummated for any reason, this Amendment shall be null and void and
of no further force or effect. "
5. This Amendment may be executed in counterparts, and if executed in
counterparts, this Amendment shall be effective as if simultaneously executed.
6. This Amendment shall be governed by and construed in accordance with the laws
of the State of Colorado, and shall bind and inl,lre to the benefit of the parties hereto and their
respective successors and assigns.
IN WITNESS HEREOF, the parties hereto have executed this instrument on this date and
year above first written;
OWNER(S):
APPROVED AS TO FORM AND CONTENT:
'~.n~
to orce er, City Attorney
"
I ~() ~.tt:A )b~AfA./
, "
Mailing Address:
STATE OF COLORADO
)
)
)
ss.
COUNTY PITKIN
7fili~"~ ,
- . wy Pub',
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F:\Files\APCHA\Truscott Place\Amendment to Lease Agmt 091201
2
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ACCEPTANCE BY THE;'HOUSING AUTHORITY
"
The foregoing agreement and its terms are accepted by the Aspen/Pitkin County Housing
Authority.
THE ASPENIPITKIN COUNTY HOUSING AUTHORITY
By: ~~//~..
~erts, Executive DIrector
Mailing Address:
Aspen/Pitkin County Housing Authority
530 East Main, Lower Level
Aspen, CO 81611
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
~
(;- The foregoing instrument was acknowledged before me this 13th day of September, 2001,
.. by Mary J. Roberts, Executive Director of the Aspen/Pitkin County Housing Authority,
WITNESS MY hand and official seal.
~.
My Cornmission expires:
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F:\Files\APCHA\Truscott Place\Amendment to Lease Agmt 091201
3
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WHEN RECORDED, RETURN TO:
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Michael R. Johnson, Esq.
Kutak Rock LLP
717 17th Street, Suite 2900
Denver, Colorado 80202
~!,:
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b~ dl, ~9o ,OD
GENERAL WARRANTY DEED
THIS DEED is made and entered into this I r.....day of . .r~ ,2001,
by the City of Aspen, Colorado, a municipal corporation, whose 'street address is 130
South Galena Street, Aspen, Colorado 81611 ("Grantor") to Truscott Phase II, LLLP,
a Colorado lirnited liability limited partnership, whose street address is
.')00 1'? MAl '" ~~ Colorado 'iS11t> II ("Grantee"):
WITNESSETH, That the Grantor, for and in consideration of the sum of Two
Mi11ion Nine Hundred Thousand Dollars ($2,900,000,00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
has granted, bargained, sold and conveyed, and by these presents does grant, bargain,
sell, convey, and confirm, unto the Grantee, its successors and assigns forever, all the
real property, together with improvements, if any, situate, lying, and being in the
County of Pitkin, State of Colorado described as ~s:
SEE EXHIBIT "A'o' . f.
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also known by street and number as: 22475 State Highway 82
Aspen, Colorado 81611.
TOGETHER with all and singular the hereditaments and appurtenances
thereto belonging, or in anywise appertaining, and the reversion and reversions,
remainder and remainders, rents, issues and profits thereof, and all the estate, right,
title, interest, claim and demand whatsoever of the Grantor, either in law or equity, of,
in and to the above bargained premises, with the hereditaments and appurtenances
(the ''Premises''). ~
TO HAVE AND TO HOLD the Premises above bargained and described with
the appurtenances, unto the Grantee, its heirs and assigns forever. . And the. Grantor,
for itself, and its successors and assigns, does hereby covenant, grant, bargain, and
agree to and with the Grantee, its successors and assigns, that at the time of the
acknowledgement and delivery of these presents, the Grantor is well seized of the
Premises above conveyed, has good, sure, perfect, absolute and.indefeasible estate of
inheritance, in law, in fee simple, and has good right, full power and authority to
grant, bargain, selland convey the same iJimarmer and form as aforesaid, and that the
same are free and clear from all former and other grants, bargains, sales, liens, taxes,
02-93136.02
City of Aspen, ColoradolTruscott Phase II, LLLP
General Warranty Deed
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assessments, encumbrances, and restrictions of whatever kind or nature whatsoever,
except those matters set forth on Exhibi*, heteto.
. B Y ff:(:J
The Grantor shall and will WARRANT AND FOREVER DEFEND the
,
above-bargained Premises in the quiet and peaceable possession of the Grantee, its
successors and assigns, against all and every person or persons lawfully claiming the
whole or any part thereof, subject to the matters set forth on Exhibit~hereto.
B S r71:7
[END OF DOCUMENT TEXT]
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02-93136.02
City of Aspen. ColoradoffniscottPhase n, LLLP
General Warranty Deed
2
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IN WITNESS WHEREOF, the Grantor has executed this deed on the date set
forth above. I.
"
By:.
Name:
Title:
a.~"-':c.
-,
STATE OF COLORADO )
) ss.
COUNTY OF l' \'f~\ N )
"
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The foregoing uistrument was acknowledged before me on this (o:/-eday of
,2001 by ~,ht,,,,,A'> ~~s C*,A fV\~... a~.r
CITY OF ASPEN, cOLO'RAl'rSo a municipal corporatIOn. v
Witness my hand and official seaL
~;l' ~lA;"
ary Public
My Commission Expires: AtJ =r! O<~
,
02-93136.02
City of Aspen, ColoradolTruseott Phase II, LLLP
General Warranty Deed
3
,
EXHIBIT A
Order Number: 00028632
"
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LEGAL DESr;RIPTION
,,'
Lot 3, THE ASPEN .GOLF COURSE SUBDIVISION, according to the Plats thereof
recorded June 20, 1985 in Plat Book 17 at Page 34 as Reception No. 269092 and
as Amended by Plat ,recorded May 19, 1994 in Plat Book 34 at Page 51 as
Reception No. 370200 and Amended by Plat recorded April .'29, 1998 in Plat Book
44 at Page 84 as Reception No. 416226, and Third Amended Plat of the Aspen Golf
Course Subdivision recorded February 23, 2001 in Plat Sook 56 at Page 72 as
Reception No. 451795.
COUNTY OF PITKIN, STATE OF COLORADO
,
,>
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3. Inclusion of 'the Property within any special taxing district.
4. The benefits and burdens of any declaration and party wall agreements, if any.
".
5. Rights or claims of parties in possess~pn, not shown by the public records.
"
6. Easements, or claims of easements I not ::.'shown by the public records.
~~,
7. Discrepanciesc, conflicts in boundary lines, shortage in area, encroachments,
"-
and any facts which a correct survey and inspection of the premises.would
disclose and which are not shown by the public records.
8. Any lien, or right to'a lien; for services, labor or material heretofore Or
hereafter furnished, imposed by law and not shown by the public records.
9. Unpatented mining claims; reservations or exceptions in patents, or an act
authorizing the issuance thereof; water'" rights, claims: or title to water.
10, Taxes for the year 2001 and subsequent years not yet due and payable.
11. Right of the proprietor of a vein or lode to extract and remove his ore
therefrom, should the same be found to penetrate or intersect the premises
hereby granted, as reser~e~ in United States Patents recorded October 27, 1892
in Book 55 at Page 31 as Reception No. 49766" and recorded October 27, 1892 in
Book 55 at Page 33 as Reception No. 49768.
','"
12. Terms, conditions, obligations, prov~s~ons, easement and other matters as shown
and contained on Open Space Annexation No. 1 Plat recorded April 20, 1971 in
Plat Book 4 at Page 191 as Reception No. 145238.
13. Easements, rights of way and other matters as shown and contained on Plats of
the subject property recorded June 20, 1985 in Plat Book 17 at Page 34 as
Reception No. 269092, and recorded May 19, 1994 in Plat Book 34 at Page 51 as
Reception No. 370200, and recorded April 29, 1998 in Plat Book 44 at Page 84 as
Reception No. 416226, and recorded February 23, 2001 in Plat Book 56 at Page 72
as Reception No. 451795.
14. Terms, conditions, obligations and provisions as set forth in Ordinance No. 34
(Series of 2000) of the City Council of the City of Aspen, approving the Aspen
Golf..and Tennis Club/Truscott Housing final planned unit development,
Subdivi~ion, rezoning and exemptions from the scoring and competition
procedures of growth management quota system, recorded August 24, 2000 as
Reception No. 446258.
15,
Terms, conditions, obligations
Improvement and PUD Agreement,
451796.
. . .
and prov~s~ons as set forth in the Subdivision
recorded February 23, 2001 as Reception No.
i6. Terms, conditions, obligations, provisions and easements of Trench, Conduit,
and Vault Agreement as set forth in instrument recorded May 9, 2001 as
Reception No. 454342.
,
Stewart Title of Aspen. lue..
Exhibit 1 - Deed Exceptions fYDEEDEXCEPIj
Rey.7199
SEP. 24. 20011" 4:24PM~C!TY OF ASPEN
INO, 606S-fP. 2
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ESCROW AGREEMENT
between
THE CITY OF ASPEN, COLOAADO
,
and
--
[ESCROWAGENTJweA1~ ~. 1V'l4-S't ~DYi..~._,I.,
as Escrow Agent .,.,. ___ TO:........v
~vl'<ev, Cp :
Dated as of ~t fJ, 21{ -' 2001
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OHnZ4.02
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SEP. 24, 20011- 4: 24PMA-CITY OF ASPEN
IND. 6069-fP. 3
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT dated as of ~r; f>r. ::J r. 2001 (this "Escrow I
Agreement"), is made and executed by and between THE CITY OF ASPEN, COLORADO
(the "City"), a home. rule munic;illality. and. political subdivision of the State of Colorado (the
"State"), and [ESCROW AC;;ENT) (the "Escrow Agent"), a national bmking association duly
organized and existing under the laws of the United States of America and having fall and
complete tnJst powerSj
WITNESSETH:
WHEREAS, on May 18, 1993, the aty issued its 54,160,000 General Obligation
Housing R.efUnding Bonds, Series 19!13A (the "1993A Bonds") pursuant to its Ordinance No. 15,
Series of 1993 (the "1!l93A Ordinance"); and
WHER.EAS, the 1 !l!l3A Bonds refunded in advance of their respective maturities the
City's then-outstanding GeneraJQbligation Housing Bonds, Series 1989A (the "1!l8!lA Bonds'');
and
~ WHEREAS, the proceeds of the 1989A Bonds were used to renovate and expand an
existing housing facility (as so renovated and expanded, the "Property''); and
WHEREAS, The City has entered inlO a Purchase and Sale Agreement dated as of
s:eyt 11 _,2001 (the "Purchase and Sale Agreement") with Truscott Phase n, LP,a Colorado
limited partnership (the "Partnership") pursuant to which the ParlIlership has agreed to purchase
tram the City a portion of the Property for 52,900,000; and
WHEREAS, the City desires 10 deposit the proceeds of the sale of such portion of the
Property into the Escrow Pund (as defined herein), to be withdrawn therefrom pursuant to the
terms of this Escrow Agreement;
NOW THEREFORE, the parties hereto recite and, in consideration of the mutual
covenants and payments referred to and oontained herein. covenant and agree as follows:
1. The Escrow Agent shall create, pursuant to this Escrow Agreement, a special1i.lnd
and separate trust account designated as the "City of Aspen. Colorado, Truscott 2001 Escrow
Fund" (the "EScrow Fund'). The City shall deposit $2,900,000.00 into the Escrow Fund: The
52,900,000.00 deposited into the Escrow Fund shall be invested as directed from time to time by
the Cit)' in accordance with theTu: CeniBcate of the City attached as Exhibit A hereto In
.~ investments permitted for City funds by the City's Home Rule Charter and Code of Ordinances
(the "Escrow Fl.Il1d Securities"), ':
!
The Escrow Agent agrees to invest all moneys deposited ill the E/;crow Fund pursuant to
the preceding paragraph iD the Escrow Fund Securities in accordance with the preceding ,
paragraph.
02.~'24.02
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SEP, 24. 20011 4: 25PMM
CITY Of ASPEN
NO. 6069-IP. 4
The initial Escrow Fund Securities shall be those set fonh in Exhibit B hereto. The City
may direct sale or reinvestment of Escrow Fund Securities by deliVering sapplemental
investment directions signed by an authorized representative of the City to the Escrow Agent
substantially in the form of Exhibit C hereto.
2. Amounts on deposit in the Escrow Fund, mcluding interest earnings thereon, shall
be held by the Escrow Agent to be disbursed to the City solely to pay costs of Qualifying
Projects (as described in the Tax Certificate of the City attached as Exhibit A hereto) upon
receipt of a requisition signed by an authorized representative of the City in substantially the
form attached hereto as Exhibit D.
3. The Escrow Agent acknowledges the receipt of the amounts initially deposited in
the Escrow Fund, as specified in paragraph 2 above. The Escrow Agent shall hold the Escrow
Fund Securities in the Escrow Fund and shall collect and receive on behalf of the City all
'payments of principal and interest on the Eserow Fund SecUrities.
4. As full consideration for all services to be performed by the Escrow Agent under
this Escrow Agreement, the City agrees to pay the Escrow Agent the sum of $150 ""'''"'' upon
the execution of this Escrow Agreement, receipt ofwhicb amount is hereby acknowledged by the
Escrow Agent The Escrow Agent expressly waives any lien upon or claim against the moneys
and securities in the Escrow Fund for its services under this Escrow Agreement.
S. The Escrow Agent shall hold the Escrow Fund Securities and any other moneys in
the Escrow Fund in a special trust fund md account separate and whOlly sc:gregated from all
other funds and securities of the Escrow Alent, and shan neVer comm~gle !I1ch money or
securities with other money or sec1.lrities. To the extent not insured by the Federal Deposit
Insurance COlporation, all IlJlinvested money held at the time in the Escrow Fund shaIl be
continuously secured by the deposit in a Federal Reserve Bank of direct Obligations of the United
States of America in a principal amount always not less than the total amount of such uninvested
money. It is understood and agreed that the responsibility of the Escrow Agent under this
Escrow Agreement is limited to the safelceepirig and sC:8T'ganon of the money and securities held
in such Escrow F\md, the collection of and accounting for the principal and interest payable with
respect thereto, and the transfer of amounts ~uestec1 by the City pursuant to requisition lI.5 set
forth in Section 2 hereo!.
6. This Escrow Agreement shall be binding upon and shall inure to the benefit of the
City and the Escrow Agent and their respective successors and assigns. In additioIl, this Escrow
Agreement shalI constitute a 1h1rd party beneficiary COIltr&ct for the benefit of the registered
ownen of the 1993A Bonds. . SBidthird pany beoeficiaries shall be entitled to eoIorce
performance and observance by the City and the Escrow Agent of the respective.agreements and
covenants herein contained as fully and completely as if such third party beneficiaries were
partJes hereto. A:J1y bank into which the Escrow Agent may be merged or with which it may be
cOllsolidated or any bank.resulting from any merger or consolidation to which it shall be a pany
or any bank to which it may sc:ll or transfer aU or !I1bstantially all of its corporate wst business
shall, unless the City disapproves in writing, be the successor agent without the execution of any
document or the performance of any further act. In the event the City disapproves of the
successor agent resUlting from any of the events described above, the City shall immediately
02,"7%4,0:
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SEP. 24. 2001! 4:25PM~CITY OF ASPEN
NO. 6069--1P. 5
appoint any state or national bank within the State of Colorado which is a member of the Federal
Deposit Insurance Corporation and which has trust powers to be the SUl;cessor agent, whereUpon
such successor agent shall immediately succeed to the respective agreements and coVenants
hereunder.
7. The City shall have therigbt, at any time, to examine all the records of the Escrow
Agent regarding the status of the funds. or accounts created pursuant to this Escrow Agreement
and the details of all income, investments, reinvestments. redemptions and withdrawals
therefrom with respect to the funds or accounts created pursuant 10 this Escrow Agreement.
8. The Escrow Agent sIlaIJ be under tIC obligation to inquire into or be in llIlY way
responsible for the performance or nonperformance by the City of any of the obligations of the
City. or to protect any of the rights of the City under any bond resolution Ilr any of the other
contracts of the City with or franchises or privileges from any state. county, municipality or other
. govemm~tal agency or with any corporation or individual: and the Escrow Agent shall not be
liable for any act done or step ta1ce:n or omitted by the Escrow Agent or any mistake of faet or
law or for anything which the Escrow Agent may do or refrain from doing. except for its
negligence or its default in the perfonnanee of any obligation imposed upon the Escrow Agent
hereunder, The Escrow Agent shall not be responsible in any manner whatsoever for the recitals
or statements contaiDed in the 1993A Bonds or any proceedings taken in cOlUlel;tion therewith.
9. If anyone or more of the covenants or agreements provided in this Escrow
AgreemCl'lt on the part oftbe City or the Bsl;row AgCl1t to be per{onned should be determined by
a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be
deemed and construed to be severable !tom the remaining covenants and agreements herein
contained and shall in no way affect the validity of the remaining provisions of this Escrow
Agreement.
10, This Escrow Agreement may be executed in several counterparts, all or any of
which shall be regarded for all purposes as one original and shall constitute and be but one and
.~ the same instrument. This Escrow Agreement shall be govc:med by the laws of the State of
Colorado, without regard to conflict oflaws principles.
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11. This Escrow Agreeml!l1t shall tem1i.nate upon the withdrawal of all moneys from
the Escrow Fund.
12. Time shall be of the essl!l1ce in the pert'ormlll1ce. of obliilticns fi'om time to time
imposed upon the Escrow Agent by this Escrow Agreement.
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NO. 6G69-P. 6
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rn 'WITNESS WHEREOF, the parties hereto have caused this instnunent to be duly
executed by their duly aulhorizedofficers as of the date first written above,
[DISTRICT SEAL]
CITY OF ASPEN, COLORADO
Attest:
.y ~r)de.z
City Clerk
~
By
Authorized Signatory
~i:
~~JCt2>
[Z. SH:AWN \fIN1'ON
[Signature Page to Escrow Agreement]
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SEP. 24. 20011 4:26PMM -C!TY OF ASPEN
NO, 6069-P, 7
EXHIBIT A
TAX CERTIFICATE OF CITY
. . ,
1, On May 18, 1993, the City of Aspen. Colotado (the "City''), issued its $4,160 000
General Obligation Housing Refunding.Bonds, Series 1993A (the "1993A Bonds'') pursu~t to
its Ordinance No. IS, S~es of 1993 (the "1993A Ordinance"). The 1993A Bonds refunded in
advance of their respective maturities the City's then-outstanding Genera! Obligation Housing
Bonds, Series 1989A (the "1989A Bonds"). The proceeds of the 1989A Bonds were used to
renovate and expand an existing housing facility (as so renovated and expanded, the "Property")
that has at all times from the dateofissue ofllle 1989A Bonds to the date of this Tax Certificate
been owned by the City and used for its governmental purposes.
2. The City has entered into a Purchase and Sale Agreement dated as of ~ 'i,
-' 2001 (!he "Purchase and Sale Agreement") with Truscott Phase n, LLLP, a Colorado limited
liability limited partnership (the ''Pannership''),pllrsUant to which the Partnership has agreed to
purchase from the City a portion .of the. Property (such purchased portion, the "Sale Property'')
for S2,900,000 in cash (the "Disposition Proceeds") which SWtl repl'llsents the exclusive
consideration paid by the Partnership for the Sale Property.
3. Pursuant to 9 U41-1S(e) oftbe Income Tax Regulations (the "Regulations''), the
City elects to apply ~ 1.141-12 of the Regulations concerning r=nedial actions to the 1993A
Bonds and the 1989A Bonds in order to avoid classification of the 1993A Bonds and the 1989A
Bonds as 'private activity bonds' under Section 141 of the Internal Revenue Code of 1986, as
amended (the "Code").
4. In furtherance of such election to apply fi 1.141.12 of the Regulati01ls to the
1993A Bonds and the 1989A Bonds, the City makes the representations and certifications
contained in this Tax Cenificate.
S. The City expected on the issue date ot'thc 1993A Bonds and the 1989A Bonds
- that each issue, respectively, would meet neither the private business tests nor the private loan
financing tests of Section 141 oE'the Code for the term of the respective issues.
6. The weighted average maturity of the 1993A BondS and the 1989A Bonds did Dot
exceed 120% ot'the reasonably expected economic life oftl'le Property as ot'lbe date ofisslle of
the respective issues.
7. The terms ofpW'Chase and sale of the Sale Property including the purchase price
in tho amount of the Disposition Proceeds anivodat in a bona tide and lIl"lU's-lllllg!h negotiation
between the City and the Partnership [after giving eft'ect to all City-impoaed res'lrictive uses of
the Sale Prop my], and that the amolUlt of the Disposition Proceeds represents the fair market
value of the Sale Propeny.
8. The City will treat the Disposition Proceeds as gtoss proceeds solely allocable to
the 1993A Bonds and 1989A Bonds. and reasonably expects as of the date of this Tax Certificate
. to expend the Disposition ProceWs within 2 years of the date hereof in a manner that satisfies the
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02-94724.02
SEP. 24, 20011 4: 26PMM
CITY OF ASPEN
NO. 6069-P. 8
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1993A Ordinance and that does not cause the 1993A Bonds and the 1989A Bonds to meet either
the private business tests or the private loan financing test of Section 141 of the Code.
9. The City does not reasonably eltpect as of the date of this Tax Certificate to take
any action subsequent to the date hereof to calise either the private business tests or the private
loan financing test oCSection 141 oCthe Code to be met.
10. The City will invest the Disposition Proeeeds until expended at a yield not in
excess oftbe yield on the 1993A Bonds [ %},
11, Should the Cicy not expend all of the Disposition Proceeds for an alternative
qualified governmental use as described in this Tax Certificate and g 1.141-12(e) of the
Regulations within 2 years of the date hereof; the City shall use any remaining unspent
Disposition Proceeds for a remedial action that resUl!$ in the redemption or defeasance of
.,nonqua1ifiedbonds puzsuant to f 1.141-12(d) oithe Regulations.
DATEDTHIS~~AYOF )~f>r: .2001
CITY OF ASPEN, COLORADO
By
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CII/AIl!'~. \\( ~ tr'r6Jl
Title
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LEASE AGREEMENT
Dated as of August l, 1989
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By and Between
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the city of Aspen, colorado,
as lessor
and
the Aspen/pitkin County Housing Authority,
as lessee
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. . ARTICLE I
...
'.'.', ARTICLE II
....
section 2.01
section 2.02
.. ARTICLE III
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~":' Section
0"';' Section
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".~." .Sect on
.'. :t'<'fL: ,Section
:. r ~,:" .Section
'.; ,Section
3.01
3.02.
IV
4.01
4.02
4.03
4.04
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~iARTICLE 'V
6.02
6.03
VII
7.01
i 7.02
"T.y:
I . ARTICLE VUI
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. Section 8.01
:. Section 8.02
, .
. ..: Section
; 8.03
, Section 8.04
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" Section 9.01
Section 9.02
LEASE AGREEMENT
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Table .,f Contents
DEFINITIONS. .. . .. .. .. '. .. .. .. .. '. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
Paqe
3
COVENANTS OF AUTHORITY AND CITy...........
Representations, Covenants and Warranties
of the Authority............................................. .. ..
Representations, Covenants and Warranties
of the city............'.'.... ".........................................
4
4
6
DEPOSIT OF MONEYS; RENOVATION AND
EXPANSION OF EXISTING FACILITy............
Deposit of Moneys.................................................
Renovation and Expansion of Existing
Facil-ity. .0....................................................... ~......
7
7
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LEASE '!'ERM................................. .'. .. .. .. .. .. .. .. -. .. .. .. .. ..
Lease of Project. .. .. .. .. .. .. .. .. .. .... .. ~ .. .. .. .. .. .. .. .. .. .. .. ..
Lease Term............................... .'....................... ~....
Termination of Lease Term.................
Surrender or Possession.................:.
8
8
8
8
8
ENJOYMENT OF PROJECT......................
9
PAYMENTS BY THE AUTHORITy................. 9
Payment of Base Rentals and Additional
Rentals.. . . . . . . . . . . .. .. . . . . .. . . . . . . . . . . . . . . . . . 9
Base Rentals and Additional Rentals
to beUriconditional....................... 9
Authority Project Accounts................ 10
'rJ:TLE TO PROJECT........................... 11
Title to Project. . . .. ... . .... . . . ..... . . .. . . 11
Liens and Encumbrances to Title........... 11
MJ.\INTENANCE; MODIFICATION; TAXES;
INSURANCE AND OTHER CHARGES............... 12-
Maintenance of Project by Authority....... 12
Taxes, Other Governmental Charges
and utility Charges........................ 12
Provisions Regarding Insurance............ 13
Advances. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
DAMAGE, DESTRUCTION AND CONDEMNATION;
USE OFNE,T PROCEEDS.................... ~-.... . 14
Damage, Destruction and Condemnation...... 14
Insufficiency of Net Proceeds............. 14
XI
11. 01
11.02
XII
12.01
12.02
12.03
XIII
13.01
13.02
13.03
13.04
13.05
13.06
13.07
13.08
13.09
13.10
13 . 11
DISCLAIMER; USE OF PROJECT............... 14
Discla.irner .............................................................. 14
Use of proj ect.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. .. .. 15
ASSIGN'l!:ENTAND SUBLEASING.................
Assignment by city........................
Limitations on Assignment or Subleasing
by Authority............................. "."..........................
EVENTS OF DEFAULT AND REMEDIES............
Events of Default Deferred................
Remedies on Default.......................
No Remedy Exclusive.............................................
MISCELLANEOUS....................................................... ..
Notice.s.. .. .. .. .. .. .. .. .. .. .. .. .. .. ;. "." .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
Binding Effect.......................................................
Severability......................................................... ..
Alnendrnents.. .. .. .. .. .. .. .. ..... '. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
Execution in Counterparts...........~.....
Applicable Law..............................
captio.ns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Entire Agreement..... . . . . . . . . . . . . . . . . . . . . . .
Further As'surances.. . . . . . . . . . . . . . . . . . : . . . .
No Third Party Beneficiaries..............
Agreement to Establish Tenant Process.....
15
15
15
16
16
17
18
18
18
18
18
19
19
19
19
19
19
19
19
. . . . . . . .. . . . . . . .. .. .. ... ... . .. . .. ,;. . . .. . . . .. .'. 20
B
c
BASE RENTAL SCHEDULE......................
DESCRIPTION OF PROJECT.................... A-l
BOND ~ROCEEDS FUND REQUISITION FORM.......
B-1
C-l
FIVE YEAR OPERATING PLAN FOR PROJECT...... D-1
E MONTHLY BASE RENTAL SCKEDULE..........~...-....:E.-l
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LEASE AGREEMENT
This Lease Agreement (as the same may be supplemented or
amended in accordance wi t;~ the terms hE;!reof, this "Lease") dated
as of August 1, 1989, entered into between the city of Aspen,
Colorado (the "city"), as lessor and the Aspen/Pitkin County
Housing Authority (the "Authority"), as lessee;
!'!!!~!!!!!!
WHEREAS, pursuant to Ordinance No. 31 (Series of 1989)
finally adopted, passed and approved on June 26, 1989 (the "Bond
Ordinance"), and the approval provided by the electors of the
city at its general election on May 2, 1989, the City is issuing
$4,600,000 in aggregate principal amount of its General
Obligation Housing Bonds, Series 1989A (the "Bonds") in order to
provide the funds necessary for the renovation and expansion of
that property formerly known as the "Red Roof Inn" located at
22475 State Highway 82 in the city and described as Lot 2, The
Aspen Golf Course Subdivisionr as shown on the plat thereof
recorded in Plat Book 17 at Page 34;10 Pitkin County records (the
"Existing Facility") (the "Existing Facility" including the land,
and all existing buildings thereon, as so renovated and expanded,
and all ac;iditions and amenities thereto the "Project"), all as
more partlcularly described on Exhibit A hereto, and for
reimbursement of capital eXpenditures previously incurred by the
city with respect thereto, together with all necessary incidental
and appurtenant costs and expenses incurred in connection
therewith; and
WHEREAS, pursuant' to the Bond Ordinance and the approval
provided by the electors of the City at said May 2, 1989 general
election the city determined to deposit $1,000,000 of the
proceeds of the Bonds to the city I sLand Fund to be used as
permittiad by law and to lease the Project to the Authority for.
the purpose of the Authority acting as the City's agent for the
renovation and expansion of the Existing Facility and for the
operation and maintenance of the Project for a period from the
date hereof through December 31, 2019, with rentals due hereunder
through January 1, 2009; and
WHEREAS, the Authority, pursuant to -an Intergovernmental
Agreement, as amended (the "Intergovernmental Agreement") between
the City, Pitkin County, Colorado, the Board of Commissioners of
the Housing Authority of Aspen, Colorado and the ~oard of
Commissioners of the Pitkin County Housing Authority.~ dated
January 9, 1984, Section 29-1-204.5, Colorado Revised Statutes,
as amended, and title 29, article 4, parts 2 and 5, Colorado
Revised Statutes, as amended, is authorized to construct,
reconstruct or repair, maintain, manage and operate housing
projects to provide dwelling accommodations at rental prices
within the means of families of low or moderate income, to
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~ire or lease any real or
~. ntracts with any person,
~ aqement and operations of
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~;WHEREAS, the city desires to lease the Project to the
thority, and the Authorit-.y desires to lease the Project from
tn.. Lessor, subj ect to the. terms and conditions of and for the
>L P!JrPoses set forth in this Lease; and
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;~~~: WHEREAS, pursuant to the Bond Ordinance, the city will
}~~'d8posit 'certain proceeds of the Bonds into a Bond Proceeds Fund
:U;;~'ilaintained by the' City for disbursement upon the terms and
.~~oonditions c~n~ained in the this Lease to renovate and expand the
'. isting Fac~l~ty; and
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i -'WHEREAS, both the city and the Authority are authorized to
ter into this Lease for the purposes set forth herein;
personal property, and to enter into
firm or corporation regarding the
housing projects; and
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for and in consideration of the mutual
hereinafter contained, the parties hereby
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ARTICLE I
DEFINITIONS
following terms shall have the meanings set forth in the
and recitals hereto:
Authority
Bond Ordinance
Bonds
city
Existing Facility
Intergovernmental
Agreement
Lease
Project
"..
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(.'In addition, the following terms will have
dicatp.d below unless the context clearly requires
the meanings
otherwise:
.',.
'~' "Additional Rentals" means the cost of all (a) the cost, if
vyf;: incurred by the city for the preparation of rebate
calculations as required by the Bond Ordinance, (b) tax7s,
,.. urance premiums, utility charges, maintenance, upkeep, repa~r,
';rovement and replacement, and (c) all other charges and costs
~together with all interest and penalties that may accrue thereon
In''.. the event that the Authority shall fail to pay the, same, as
specifically set forth herein) which the Authority assumes or
agrees tQ'pay or cause to be paid as Additional Rentals hereunder
ith respect to the Project. Additional Rentals do not include
the- Base Rentals.
'~ "
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r "Base Rentals" means the payments payable by the Authority
. tiring the Lease Term pursuant to section 6.01 of this Lease and
Exhibit B hereto, which constitute the payments payable by the
Authority for and in consideration of the right to occupy,
possess and use the Project during the Lease.Term.
;;-,. "Bond Proceeds Fund" means the "city of Aspen, Colorado,
;~eneral Obligation Housing Bonds, Series 1989A Bond Proceeds
;Fund", to be maintained by the City pursuant to the terms. and
'conditions of the Bond Ordinance. . '.
.1.-- .
fe' "Event of Default" means one or more events of default as
defined in section 12.01 of this Lease.
"Fiscal Year" means the twelve-month period ending each
Dece1llber 31.
Term" means the Term provided for in this Lease under
,-
Remedy" or "Lease Remedies" means any or all remedial
may be taken by the city as provided in section 12.02
an Event of Default hereunder has happened
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"Net proceeds" means when used with respect to any
"'!orlllance or payment bond proceeds, or proceeds of insurance,
~~lUding self-insl7rance, required by this Lease, or proceeds
any condemnat~on award, or proceeds from any Lease Remedy
.. after deducting from such proceeds
eXJ:lenses (incl.uding , wi thout limi tat ion I
"ttorneys I fees and costs) incurred in the collection of such
~toceeds or award; and (ii) all other fees, expenses and payments
. to the Authority or the City.
,:.',.' "Perlllitted Encumbrances" means as of any particular time:
('ir liens for taxes and assessments not then delinquent, or liens
which may remain unpaid pending contest pursuant to the
provisions of Article VII and Article IX of this Lease; and (ii)
this Lease.
Investments" means and are limited to the
(a) any security issued by, guaranteed by, or for
which the credit of any of the following is pledged for
payment: The United states of America, a federal form
credit bank, the federal land bank, a federal home loan
bank, the federal home loan mortgage corporation, the
~ederal national mortgage association, the export-import
bank, or the government national mortgage association;
or
(b) certificates of deposit issued by, and time
deposits in, state banks, national banks, or state or
federal savings and loan associations in Colorado which
is, at the time the deposit is made, a melllber of the
Federal Deposit Insurance Corporation ("FDIC") or the
Federal Savings and Loan Insurance Corporation ("FSLIC")
to. the extent that the deposit is "insured by the FDIC or
the FSLIC.
. . "Project' Costs" means. 'any'. costs ..'and' .expenses incurred in
'connection with the renovation. and expansion of the' Existing
:Facili ty.
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ART:ICLE :II
COVENANTS OF AUTHORITY AND C:ITY
Section 2.01. Reoresentations, Covenants and Warranties of
Authority. The Authority represents, covenants and warrants,
the benefit of the city, as follows: .
(a) The Authority is authorized to enter into this
Lease and the transactions contemplated hereby, and to
perform all of its obligations hereunder.
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(b) The Authority has been duly authorized to
. execute and deliver this Lease under the terms and
provisions of a resolution of its Board of Directors,
and all requirements have been met, and all procedures
have occurred in or1er to ensUre the enforceability of
this Lease.
(c) Neither the execution and delivery of this
Lease, nor the fulfillment of or compliance with the
terms and conditions of this Lease, nor the consummation
of the transactions contemplated by this Lease conflicts
with or results in a breach of the terms, conditions and
provisions of any restriction or any agreement or
instrument to which the Authority is a party or by which
the Authority is bound, or constitutes a default under
any of the foregoing.
(d) The Authority will not assign this Lease nor
its duties and obligations hereunder to any other
person, firm or corporation, except that the Authority
may enter into a management contract with Aspen-Pitkin
Employee Housing, Inc. a Colorado non-profit
corporation, as approved in writing by. the City for the
management and operation of the Project and except as
may~pe provided in Article XI hereof.
,;i.' r;- (e) During the Lease Term, the Project will be
}'\l. 'used by the Authority solely for the purpose of
providing dwelling accommodations at rental prices
within the means of families of low or moderate income
in accordance with its guidelines which may be in effect
at any time and from time to time and will not be used
in a trade or business of any person or entity other
than the Authority, except as may be provided in Article
XI hereof. The Authority will only lease individual
dwelling units directly to. the persons and families
which are to be the occupants of such units and will not
lease dwelling units' to any other person, partnership,
corporation or other entity, except as may be provided
in Article XI hereof.
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(f) The Authority will take no action that would
cause the interest on the Bonds to become includible in
gross income for federal income tax purposes, and will
take or cause its officers, employees and agents to
'take, all actions lawfully within its powers necessary
to cause the interest on the Bonds to remain excludible
from gross income for federal income tax purposes. ,-
(g) The Authority agrees to observe and comply
with all rules, regulations and laws applicable to the
Authority with respect to renovating and expanding the
Existing Facility and operating and maintaining the
proj ect. The cost, if any, of such observance and
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compliance shall be borne by the
'. shall not be liable therefor
~~. provision of this Lease.
..
Authority, and the City
as a result of any
: (h) To the knowledge of the Authority, there is no
litigation or proceecing pending or' threatened against
the Authority or any other person a~fecting the right of
the Authority to execute and deliver this Lease and
related documents or certificates, or affecting the
ability of the Authority to make payments required under
the Lease or to otherwise comply with the obligations
contained herein.
(i) The Authority has provided its five-year
operating plan for the Project which is attached hereto
as Exhibit D. On or before the end of each Fiscal Year
of the Authority the Authority shall provide to the City
;" a revision of and an additional year to such five-year
'.,. operating plan and each revision and additional year
.i--,.shl!-ll become a part of Exhibit D 'hereto. The Authority
o~'will also annually provide the city with such current
"C financial statements, budgets, Project audits and such
,ovother financial information relating to the ability of
,;" j the Authority to continue this Lease as may, be
s::reasonablyrequested by the City.
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:'. '.. Section 2.02. Representations. Covenants and Warranties of
he eit. The city represents, covenants and warrants, for the
enef't of the Authority, as follows:
CL
,;..;::" (a) The City is authorized to 'enter into this'
'. c"Lease and the transactions contemplated hereby and to
,t'perform all of its obligations hereunder.
(b) The City has been duly authorized tq execute
and deliver this Lease under the provisions of the Bond
Ordinance, and all requirements have been met, and all
procedures have occurred in order to. ensure the
enforceability of this Lease.
(c) Neither the execution and delivery of this
Lease, nor the fulfillment of or compliance with the
terms and conditions of this Lease; nor the consummation
of the transactions contemplated by thi~ Lease conflicts
with, or results in a breach of the terms, conditions and
provisio~s of any restriction or any' agreement or
instrument to which the City is now a party or by which
the city is bound, or constitutes a default under any of
the foregoing. ,~
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.,. (d) The City will not
.f.; rights to payments from the
/,. and obligations hereunder to
';~' corporation unless agreed
Authority.
(e) To the knowledge of the City, there is no
litigation or proceeding pending or threatened against
the City or any other person affecting the right of the
city to execute or deliver this Lease or to comply with
its obligations hereunder..
assign this Lease, its
Authority, nor its duties
any other person, firm or
to in writing by the
ARTICLE III
DEPOSIT OF MONEYS; RENOVATION AND
EXPANSION OF EXISTING FACILITY
,) section 3. O~ Deposit of Moneys. Upon the execution and
lilivery of this Lease, the Ci.ty shall. cause $3,600,000 to be
deposited into the Bond Proceeds Fund. Moneys deposited in the
Bond Proceeds Fund shall be disbursed by the City for the
renovation and expansion of the Existing Facility and the costs
.of issuing the Bonds, including interest on the Bonds during
construction as set forth in this Article. All moneys held in
'the.Bond~ Proceeds Fund shall be invested under the direction of
the. city.
. ,';: Section 3.02. Renovation and Expansion of Existinq
Facility. The Authority agrees to cause the Existing Facility to
be renovated and expanded as described in Exhibit A hereto and in
~c.cordance with the plans and specifications therefor delivered
'~othe City prior to the date hereof and to enter into contracts,
,and to provide for, or cause to be provided for, the renovation
'and expansion of the Existing Facility. The Authority agrees
~that it will cause the renovation and expansion of the Existing
t;Filcility to' be diligently performed 'after the ,deposit of funds
'intei, ;theBc:ind '-proceeds 'Fund and will use, its_best efforts to
. "cause the renovation and expansion of the Existing Facility to be
,completed by, January 1, 1990, or as soon thereafter as
. practicable. If for any reason the renovation and expansion of
. @the Existing Facility is not completed by said date, there shall
~: 'be no resulting liability on the part of the Authority or an
'~Event of Default hereunder, provided that there shall not be, on
':;!;i,?account of such failure to timely complete the renovation and
.I....nsion of the Ex<-ting Facility, any diminution or
~ ~postponement of the Base Rentals and Additional Rentals required
: ~to be paid by the Authority during the Lease Term. ,~
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~~ The execution and delivery by the Authority of a Bond
~rProceeds Fund Requisition Form, in form as provided in Exhibit C
~~hereto shall be required to authorize any payments made from the
'I~.~ Bond Proceeds Fun~ by the City, except for,the costs of,issua~ce
~. /~ of the Bonds or l.nterest on the Bonds durl.ng construct loon whl.ch
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'''y be paid directly by the City from the Bond Proceeds Fund. In
'c!dition there shal.l be attac~ed to, the ~ond Proceeds Fund
';'quisition Form eVl.dence of ll.en wal.vers wl.th respect to all
york done on the Project to the date of such requisition.
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~'f:, AnY substantial changes, ,alteration, modification,
iili'stitution or replacement of the plans and specifications for
t11e"renovation and expansion of the Existing Facility after the
&te hereo f shall be approved in writing by the City. Any
\., ; .ranc::rease in the proj ect Costs whet~er or not res;:ul ting from such
'i""~\'..i c::hange shall, to the extent the l.ncreased Pro) ect Costs exceed
:' ,the total balance in the Bon,\ Proceeds Fund, be payable solely
lrom other funds of the Authorl.ty.
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it;::: All moneys resulting from the investm,ent of mOl'!eys in the
ond Proceeds Fund except for moneys whl.ch the Cl.ty may be
required to deposit to the Rebate Fund as defined under the Bond
Ordinance shall be retained by the city in the Bond Proceeds Fund
and applied to Project costs. '
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'it. i' LEASE TERM
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\ hi:. section 4.01. Lea.seof Project. The city hereby demises
~nd leases to the Authority, and the Authority leases from the
C!t;y, the Project, in accordance with the provisions of this
Lease, to have and to hold for the Lease Term.
t:'
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J., Section 4.02. LeaSe Term. The Term of this Lease shall
cOlllIllence as of the date of execution and delivery of this Lease
:and shall terminate December 31, 2019.
tn",
Termination of Lease Term. The Lease Term
terminate upon the earliest of any of the following events:
(a) December 31, 2019; or
by the Authority and the
this Lease under Article
(b) an Event of Default
city I s el ect ion to terminate
XII hereof.
Ill"
~f;: Section 4.04. Surrender or Possession. The Authority shall
'i!f:;.. sUrrender possession of the Project to the city upon termination
Ii of the Lease Term.
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ARTICLE V
ENJOYMENT OF PROJECT
The city hereby covenants to provide the Authority during
8 Lease Term with qu:.et use and enjoyment of the Project, and
. 8 Authority shall during. the Lease Term peaceably and quietly
hold and enjoy the project.
The city shall have the right at all reasonable times during
business hours to enter into and upon the property of the
Authority for the purpose of inspecting the Project. The
Authority shall ~se its best efforts to provide to the city
access to the proJect.
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ARTICLE VI
PAYMENTS BY THE AUTHORITY
";. section 6 . 01. payment of Base Rentals and Additional
entals. The Authority shall pay Base Rentals, in lawful money
of the united states of America, directly to the City at: Office
of City Finance Director,.Aspen; Colorado. The city understands
that Base Rentals are payable exclusively from moneys received by
the Authority from the operation of the project and any other
legally available funds of the Authority, if any. Base Rentals
shall be paid in the amounts and on the dates set forth in
Exhibit B hereto.
The Authority shall pay Additional Rentals during the Lease
as herein provided.
Section 6.02. Base Rentals and Additional Rentals to be
Unconditional. The obligation of the Authority to make payment
of the Base Rentals and Additional Rentals required under this
'~icle VI and othe~ sections hereof, and to perform and observe
,.the-covenants and agreements contained .here),n, shall. bE! absolute,
and unconditional in all events, except as expressly provided
Lunder this Lease. Notwithstanding any dispute between the
:.Authority and any other person, the Authority shall make all
:payments of Base Rentals and Additional Rentals when due and
,'shall not withhold any Base Rentals and Additional Rentals
~pending final resolution of such dispute (except as provided in
\ Section 8.02 hereof), nor shall the AUthority assert any right ~
~. Set-off or counterclaim against its obligation to make such
:."payments 'required under this Lease. Any installment of Base
~_Rentals or Additional Rentals accruing hereunder whi~h shall not
,::be paid when due shall bear interest at the rate of ten percent
'~(10%) per annum, or such le.sser rate of interest as may be
:';,: required. by law, from the date when the same is due hereunder
'" until the same shall be paid.
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78. .
t, section 6.03. Auth?r~ty :Pro'j ect Acco,un',. The Authority
.. ....."'e8 to create and adm~n~ster the follow~ng accounts for the
.. · at into which all revenues or other moneys held by the
"th~rity relating to the Project shall be deposited:
~..."
(a) proje~t Operating.. Account from which
Authority shall pay the expenses of operating
maintaining the Project;
the
and
(b) Project Base Rentals Account into which the
Authority shall deposit monthly the portion of Base
Rentals next due to the city hereunder in amounts at
least equal to the monthly Base Rentals set forth on
Exhibit E hereto;
(c) Project B~3e Rentals Reserve Account into
which the Authority shall deposit the sum of $350,000
not later than September 1, 1989, which amount shall be
maintained therein until January' 2, 2009, and which may
o~ly be used by the Authority ,to provide for any
deficiency in the payment of Base Rentals to the city
pursuant to Section 6.01 hereof; and
(d) Project~epair and Replacement Account to
which the Authority shall deposit Project moneys from
ttime to time and from which the Authority shall pay the
"cost of unusual or extraordinary maintenance or repairs
..of the Project, renewals and replacements for the
:"Q~~ 'Project, and the renovating or replacement of fixtures
~tJ.... and equipment in respect of the Project not paid as part
of the ordinary and normal expense of the Project
operations.
. Through January 1, 2009, and unless the city shall otherwise
gree in writing:
\1'::'.
(a) the Authority shall not use or deposit moneys
'orrevenues of the Project for.. any purpose or to any
account other than for the purposes or to the accounts
described herein;
(b)
deposited
Permitted
the Authority shall invest all
to the Authority I s proj ect Accounts
Investments; and ..
moneys
only in
(c) the Authority shall engage an
certified public accounting firm to provide
on a monthly basis the following:
independent
to.. the City
,~
(1) a monthly statement of accounts for the
Project;
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.;i~~~":;: (d) in the event of any deficiency in any month in
::~f:ll';:<" the amounts to be accumulated in the proj ect Base
,::. Rentals Account, the Authority shall immediately
..:;::, transfer , first, from the proj ect Base Rentals Reserve
.~ ,Account, and second, to the extent necessary, from the
!~,.; Project Repair and Replacement Account, to the Project
'~":':. Base Rentals Account, the amount necessary to provide
f 1-,,; for such -def iciency.
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(2) a statement that the Project Base Rentals
Account of the Authority contains the amount
required by the city to be accumulated therein for
the subject month in accordance with paragraph (b)
of this secti~n and Exhibit E hereto; and
(3) a statement that all moneys
the Authority 's proj ect accounts are
Permitted Investments.
deposited to
invested in
ARTICLE VII
TITLE TO PROJECT
section 7.01. Title to the Project. During the Lease Term
and at the end of the Lease Term, title to the Project shall at
d~ ': times remain and vest in the city, subj ect to the rights of
th$.Authority hereunder. In the event of the occurrence of an
,Event of Default as set forth in Article XII hereof, the
'Ailthority will reasonably surrender possession of the Project.
,.
e....
. ',.;:., section 7.02. Liens and Encumbrances to Title. The
Authority shall not permit any mechanic I s or other lien to be
established or re~ain against the project; provided that if the
Authority shall first notify the city of the intention of the
~Ai1thority so to do, the Authority may in good faith contest any
mechanic 's' lien or other lien filed or asserted against the
'Project, arid in such event may permit the items so contested ,to
.remain undischarged and unsatisfied during the period of such
'contest and any appeal therefrom unless the city shall notify the
:Authority that, in the opinion of the city Attorney, by
~onpayment of any such items the city's title to the project will
" ;be materially endangered, or the proj ect or any part thereof will
-'. ,.~: be subject to loss or forfeiture, in which event the Authority
.:;;!'i\';,\shall promptly pay and cause to be satisfied and discharged al:l
~uch unpaid items (provided, however, that such payment shall not
,constitute a waiver of the right to continue to contest such
=,: items) . The city will cooperate fully with the Auth19rity in any
," ~. such contest, upon the request and at the expense of the
~;Authority. Neither the city nor, except as provided above, the
:~~Authority, shall directly or indirectly create, incur, assume or
:"~:. suffer to exist any mortgage, pledge, lien, charge, encumbrance
11<. or claim on or with respect to the Proj ect, except Permitted
~\; Encumbrances. The Authority or the city, as the case may be,
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:.;, 11 promptlY, at.i ts own expense, take such action as may be
'cassary to duly d~scharg~ any such mortgage, pledge, lien,
~e, encu:mbra~ce ordcla~m not excepted above which it shall
)aV8created or ~ncurre .
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5::t;~($i;':~J{AINTENANCE; MODIFICATION; TAXES; INSURAllCE AND OTHER CHARGES
....~..':",.......
;iij~~\:, Section 8.01. Maintenance of proiect by Authority. The
.:~~1tuthority agrees that at all ti~es during the Lease Term the
. Authority will, at the Author~ty.'s o~n cost an~ expen:;;e,
pintain, preserve and keep the Pro) ect ~n goodrepa~r, work~ng
'order and condition, and that the Authority will from time to
ttme make or cause to be made all necessary and proper repairs,
~eplacements and renewals. The city shall have no responsibility
in' any of these matters, or for the making of improvements or
'dditions to the Project. .
ARTICLE VIII
.;:' section 8.02. Taxes, other Governmental Charges and utility
Charges. The city and the Authority contemplate that the project
will be used for a governmental or proprietary purpose of the
city and the Authority and, therefore, that the Project will be
exempt!, from all taxes presently assessed and levied with respect
:Co' real property. In the event that the use, possession,
~enovation or expansion of the Project is found to be subject to
.taxation in any form, the Authority will pay as Additional
Rentals during the Lease Term, as the same respectively come due,
'11' taxes and governmental charges of any kind whatsoever that
may at any time be lawfully assessed or levied against or with
'respect to the proj ect and any equipment or other property
;acquired by the Authority in substitution' for, as a renewal or
replacement of, or a modification, improvement or addition to the
Project, as well as all power, telephone, utility and other
~arges incurred in the operation, ~aintenance, use, and upkeep
;,Clf.,:theProject; Provided .t,hat, _ with respect to any ,governmental
,:charges that may lawfully be paid iri installments' over a period
"of, years, the Authority shall be Obligated to pay only such
installments as have accrued during the Lease Term.
_ _.~!('.,. The Authority may, at its expense, in good faith contest any
'" isuch taxes, assessments, utility and other charges and, in the
levent of anJ.' such contest, may permit the taxes, assessments,
i ~utility or other charges so contested to remain unpaid during tne
:".period of such contest and any appeal therefrom unless the city
, ',shall notify the Authority that, in the opinion 'of the City
:, ~.Attorney, by nonpayment of any such items the title will be
.:.materially endangered or the Project or any portion thereof will
,be subject to loss or forfeiture, or the City will be subject to
': liability, ,in which event such taxes, assessments, utility or
of. other charges shall be paid forthwith (provided, however, that
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payment shall not constitute a waiver of the right to
.....ntinue to contest such taxes, ,'sessments, utility or other
Charges) .
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. ~~:. section 8.03 p~'ovisions Reqardinq Insurance. At its own
aXPense the Au~ho~ity shall cause the following insurance to be
Carrie~ and ma~nta~ned:
.......to
~~~. (a) casualty and property damage insurance
;;L" sufficient to protect the full replacement value of the
-'t,;. proj ect; and
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. VIS' (b) comprehensive general public liability
(' insurance against all direct or contingent loss or
<~~,liability for property damage, personal injury or death
~,., occasioned by reasons of the operation, control or
::aI :;. construct,io,n uP:ln ,th;e proj ect premises , with a maximum
".'" single l~mJ.t l~abJ.l~ty of not less than $500,000 for
";fX: pe.rsonal injury or death arising from a single accident
~~:6r event and $500,000 for a single occurrence of
";;:. . property damage; and
;~~.
(c) workmen's compensation
statutory benefits under the
.;';. ~olorado.
1" insurance proceeds from casualty losses shall be payable as
hereinafter provided in this Lease. The Authority shall furnish
,t:o~,the city certificates evidencing all such insurance coverage
.throughout the Lease Term.
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'~..::., Any insurance policy pursuant to this Section 8.03 shall be
so."written or endorsed as to make losses, if any, payable to the
Authority and the City as their respective interests may appear.
.'rhe Net Proceeds of the insurance required in this section 8.03
shiitll be applied as provided in Article IX hereof. Each
.insurance policy provided. for in this Section 8.03 shall contdn
;iit provision to the effect thiitt the insurance company shall not
'cancel the policy or modify it materially and adversely to the
'interest of the city without first giving written notice thereof
~to the City at least thirty (30) days in advance of such
j~ancellation or modification.
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::"LC:'. Section 8.04. Advances. In the event the full insurance
.-., Coverage required by this Lease is not maintained as provided in
Section S. 03 hereof ,or the Project is not kept in good repair,
. and operating condition, or the Authority fails to p~y Additional
,,:.Rentals as they become due, the city may (but shall be under no
'.~ obligation to) purchase the required policies of insurance and
~pay the premiums necessary and provide for payment thereof or pay
: such Additional Rentals; iitnd all iitmounts so advanced therefor by
.::-: the city, if any, shall become Additional Rentals for the then
t:current Lease Term, which amounts, together with interest thereon
.w.~ at the rate of ten (10%) per annum, the Authority agrees to pay.
insurance affording the
laws of the State of
ARTICLE IX
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~; section 9.01. Damaqe, Destruction and Condemnation. If
rior to the termination of the Lease Term (a) the.Project or any
portion thereof is destroyed (in whole or in part) or is damaged
~y fire or other casualty or (b) title to, or the temporary use
of the Project or any part thereof or the' estate of the
Authority or the city in the Project or any part thereof shall be
en under the exercise, of the power of eminent domain by any
. vernmental body or by any person, firm or corporation acting
. der governmental authority, the Authority and the city will
'use the Net Proceeds of any insurance claim or condemnation
ward 'to be applied to the prompt repair, restoration,
~Cldification, replacement or improvement of the Project. Any
"alance of the Net Proceeds remaining after such work has been
cOmpleted shall be paid to the Authority. Notwithstanding the
toregoing, the city and the. Authority may agree to other
application of such Net Proceeds, including the application of
ch Net Proceeds to the prepayment of Base Rentals.
~~ ,
~J.i..: Section 9.02. InSUfficiency of Net Proceeds. If the Net
.' 'ceeds\are insufficient to pay in full the cost of any repair,
'estoration, modification or improvement, referred to in Section
"}0'1 hereof, the Authority shall complete the work and pay any
cst., in excess of the amount of the Net Proceeds, in which case
the Authority shall not be entitled to any reimbursement therefor
trom the city nor shall the Authority be entitled to any
iminution of the Base Ren'::als and Additional Rentals payable
~der Article VI hereof. Notwithstanding the foregoing, the city
and the Authority may agree to other application of such Net
.:Proceeds, including the application of such Net Proceeds to the
prepayment of Base Rentals.
'1,',
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DAMAGE, DESTRUCTION AND CONDEMNATION,
USE OF NET PROCEEDS
ARTICLE X
DISCLAIMER; USE OF THE PROJECT
Section 10.01. Disclaimer. THE CITY MAKES NO WARRANTY OR
.' REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE,
. DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR,
(PURPOSE OR FITNESS FOR INTENDED USE OF THE PROJECT, OR ANY OTHER
~REPRESENTATION OR WARRANTY WITH RESPECT THERETO. THE AUTHORITY
':HEREBY ACKNOWLEDGES AND DECLARES THAT THE CITY DOES NOT HAVE ANY
.RESPONSIBILITY FOR THE VALUE, DESIGN, CONDITION, MERCHANTABILITY
,'OR FITNESS FOR PARTICULAR PURPOSE OR FITN3SS FOR INTENDED USE OF
THE PROJECT OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT
: TO THE PROJECT. In no event shall the City be liable for any
...., incidental, indirect, special or consequential damage in
:; connection with or arising out of this Lease or the existence,
'furniShing, functioning or the Authority'S use of the project.
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" section 10.02. Use of the Pro-j ect. The Authority shall not
..~ or maintain the proj ~ct ?r ca~se the proj ect . to be operated,
~properlY, carelessly, ~n v~olat~on of any appl~cable law or in
a~"lIIanneT contrary to that contemplated by this Lease. The
. '~thorit:y shall provide a~l permits. an~ licenses, if any,
~cessary for the renovat~on and expans~on of the Existing
i.cility.
,\."
ARTICLE ,XI
'. ASSIGNMENT AND SUBLEASING
i~ section 11.01. Assignment by City. The city's rights under
"'is Lease, including its rights to receive Base Rentals, may be
signed by the City, subsequent to the execution of this Lease,
rovided that in connection with such assignment, the City shall
~ve obtained the prior written consent of the Authority thereto.
., Section 11. 02. Limitations On Assignment or S',bleasing by
uthorit. This Lease and the Authority's duties and obligations
ereunder may not be assigned by the Authority for any reason
except as provided in Section 2.01 (d) hereof unless tn,e city
shall have provided written agreement to such assignment.
However, the Project and any part thereof may be subleased by the
authority, as a whole or in part, without the necessity of
obtaf"n,ing the consent of the City, subj ect to the following
onditions:
'~,::"
(a) The residential units or dwelling
accommodations within the Project shall be leased by the
Authority as provided in Section 2.01(e) hereof.
(b)
subleases
hereof:
In the case of any sublease other than
of the Project described in paragraph (a)
(1). The Project may be' subleased by the
Authority in whole or in part, only to an agency or
department or political SUbdivision of the State of
Colorado, or to another entity or entities if, in
the opinion of nationally recognized bond counsel
acceptable to the City, such sublease will not
impair the exclusion from gross income of the
interest portion of Base Rentals for the purposes
of federal income taxation;
(2) This Lease, and the obligations of'~ the
Authority hereunder, shall, at all times during the
Lease Term, remain obligations of the Authority,
and the Authority shall maintain its direct
relationship with the city notwithstanding any
sublease;
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(3) The Authority shall furnish a copy of
such sublease to the city; and
(4) No sublease by the Authori ty shall be
made which would adversely affect the exclusion
from gross income of the interest portion of the
Base Rentals for purposes of federal income
taxation.
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
. "T:: section 12.01. Events of Default Defined. The following
. shall be "Events of Default" under this Lease and the terms
'!event of default" and "default" shall mean, whenever they are
~ ed in this Lease, anyone or more of the following events:
(a) Failure by the .Authority to pay any Base
Rentals or Additional Rentals or other payment required
to be paid hereunder at the time specified herein; and
(b) Failure by the Authority to observe 'and
perfqrm any covenant, condition or agreement on its part
to be observed or performed, other than the payment
.1(. ""covenant as referred to in Section 12.01 (a), for a
.:.: period of thirty (30) days after written notice,
specifying such failure and requesting that it be
remedied as given to the Authority by the city, unless
the city shall agree in writing to an extension of such
time prior to its expiration; provided, however, if the
failure stated in the notice cannot be corrected within
the applicable periOd, the City will not unreasonably
withhold its consent to an extension of such time if
corrective action is instituted by the Authority within
. the applicable period and diligently pursued until the
default is corrected; and
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(c) If (i) the Authority's interest in this Lease
or any part thereof be assigned or transferred without
the written consent of the city, except as provided
herein, either voluntarily or by operation of law or
otherwise, or (ii) any proceeding under the United
states Bankruptcy Code or any federal or state
bankruptcy, insolvency, or similar law or any law
providing for the appointment of a receiver, liquidator,
trustee or similar official of the Authority or of all
or substantially all of its assets, is instituted by or
with the consent of the Authority, or is instituted
without its consent and is not permanently stayed or
dismissed wi thin sixty (60) days I or if the Authority
offers to the Authority's creditors to effect a
composition or extension of time to pay the Authority's
-16-
',/ debts or asks, seeks or prays for a reorganization or to
';:~ effect a plan of reorganization, or for a readjustment
L of the Authority's debts, or if the Authority shall make
,L a general or any assignment, .~or the benefi.t of the
;'; . Authority , s cred~tc.r.s, or (~~~) the Author~ty shall
.:: abandon or vac;ate any part ot the proj ect (except
~~'pursuant to Art~cle IX hereof).
~:--
~t~:section i2.02. Remedies on Default. Whenever any Event of
'~~ault shall have happened and be continuing, the City shall
'::."8.the right, at its sole option without. any further demand or
notice to take one or any combination of the following remedial
teps ~ith or without termination of this Lease:
t\ ,1'.
..~;." . (a) without terminating this Lease, the City may
';':: ~collect each installment of Base Rentals and Additional
:.:.;: Rentals as they become due and enforce any other term or
~~',. "provision hereof to be kept or performed by the
~". Authority and/or may exercise any and all rights of the
"'n~' city to take possession of. and relet the Project or any
~V : part thereof;
.~,.. .. (b) by written notice to the Authority, request
the Authority to promptly surrender possession of the
prdj~ct to the city, and permit the city or any party
designated by the city quiet enjoY1llent and use of the
Project;
(c) take immediate possession of the Project;
(d) sell, lease or sublease the project; and
(e) Exercise any other right, remedy or privilege
which may be available to it under applicable laws of
the state of Colorado or any other applicable law, or
proceed by appropriate court action to enforce the terms
. of this. Lease, or. to recover damages. !=Qrthe breach .of
this Lease or to rescind this Lease as to any portion.. of
or all of the Project.
All moneys received by the city as a result of the exercise
its remedies hereunder shall be applied as follows:
FIRST: to the paY1llent of the legal costs and
expenses incurred I:>y the city in pursuing any and all
remedies of the City hereunder; and
SECOND: to the paY1llent of the costs and eXpenses
attributable to the sale, leasing or other disposition
of the Project or any part thereof; and
THIRD:
Rentals.
to the paY1llent of any then due Base
-17-
FOURTH: to the payment of any then due Additional
. Rentals.
.0..',....
.~~.: In addition, the Authority will remain liable for all
...'enants under this Leas<3 and for e~penses, including court
, "'osts when and if deemed appropriate and awarded by a court of
~~mpetent jurisdiction, incurred ~y th~ city with respect to the
';f;)''l,:~''.nforcement of any of tl;e, remed~e.s ~~st7d above. or, any other
!:~.'1t\i toedY available to the C~ ty, when ~t ~s hnally ad] ud~cated by a
;~~j~court of competent jurisdiction that the Authority is in default
:'\f);;tbereunder.
;7f~, . 'i'::;.o~.~.
5 ta7.Section 12.03. No Remedy Exclusive. No remedy herein
. conferred upon or reserved to the City is intended to be
ixclusive and every such remedy shall be cumulative and shall be
.' !n""a:ddition to every other remedy given under this Lease or now
. or~hereafter existing at law or in equity. No delay or omission
':ril;....:eo..,:;.exercise any right or power accruing upon any default
.:J:'l '.hereunder shall impair any such right or power or shall be
..'.\.- '.,. . ... .
~'.\' 'construed to be a wa~ ver thereof, but any such r~ght and power
~ ~y'~be exercised from time to time and as often as may be deemed
It expedient.
.~ ;;,.J....
.:,'
"r:,:;' Section 13.01. Notices. All notices, certificates or other
, ~mmunications hereunder shall be sufficiently given and shall be
:deemed given when delivered or mailed by registered mail, postage
:p~epaid, addressed as follows:
. ".;J.uc.
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. ~\. ~ ~
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.l1.I!!':~ - .. Section 13.02. Binding Effect. This Lease shall inure to
'_I{the benefit of and shall be' binding upon the City :~and the
'~.1Ii~~~thority and their respective successors and assigns.
".l:." Section 13.03. Severability. In the event any provision of
':lthis Lease shall be held invalid or unenforceable by any court of
;:;;i::;fColUpetent jurisdiction, such holding shall not invalidate or
ti;~t:ender unenforceable any other provis ion hereof.
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ARTICLE XIII
MISCELLANEOUS
If to the Authority:
Aspen/Pitkin County Housing Authority
130 South Galena
'Aspen, Colorado 81611 .
Attention: Executive Director
If to the city:
City of Aspen, Colorado
130 South Galena
Aspen, Colorado
Attention: city
81611
Manager
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;)'~'.~',.i'l.~:,.. section 13.04. Amendments. The terms of this Lease shall
'. ,~~t be waived, altered, modified, supplemented or amended in any
:~~nner whatsoe~er except by written instrument signed by the City
: i? and the Author~ty.
'.'
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.~. . Section 13.05. Execution in Counterparts. This Lease may
:~;;;:~i;'e,~ executed in several. counterparts, .each of which shall be an
:!.':~~'original and all of wh~ch shall const~tute but one and the same
. V;:::: instrument
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'>';:;1:" . SectJ.on 13.06. Applicable Law. This Lease shall be
'c"'c}~'qoverned by and construed in accordance with the laws of the
':i:;ftWstate of colorado.
,:.' ,
::iY:. ,(:'. section 13.07. captions. The captions or headings in this
C1. ~tease are for c~nvenience of refere~ce only and in no w~y ,define,
'::::\i1:l1.1illlit or descrJ.be the scope or J.ntent of any provJ.sJ.ons or
:"'~~I. (:'f;.~~ions of this Lease.
,~I ...i1t~"I"
.::}'l:~:: sec,tion 13.08. Entire Aqreeme~t. This Lease co~stitutes
'h:.il~the entJ.re agreement between the CJ. ty and the AuthorJ. ty. No
:':lh~waiver, consent, modification or change of terms of this Lease
.:~~Bhall bind either,party unless. in wr~t~ng ~igned by both Rarties,
.,,'i<;;.,;:and then such waJ.ver, consent, modJ.fJ.catJ.on or change shall be
':., 'effective ionly in the specific instance and for the specific
,c,. purpo.se given. . There are no understandings, agreements,
'repre~entations or warranties, express or implied, not specified
nerein' regarding this Lease or the Project leased hereunder. Any
'!:erms and conditions of any purchase order or other document
:(with the elCception of amendments or supplements as provided in
Section lj.04 hereof) submitted by the Authority or the city in
"it..;';"connec~ion wi::h this Lease whic~ are in ,addition ,to or
"~~inconsJ.stent wJ.th the terms and condJ.tions of thJ.s Lease wJ.ll not
*,~~;~.~:binding on the city in the case of an Authority submission or
'f~;' the\lthority in the case of a city submission and will not . apply
.t\t/to thJ.s .Lease. .
eM ~....~~~,., .
; !Ii"''''' ,
'i, ~l,t',.. SectJ.on 13.09. Further Assurances. The Authority and' the'
'L.",:'city further agree to execute and deliver such additional
" ",::'Sidocwnents and agreements as necessary to carry out the intent of
~:; thi S Lease.
'~f~
~:S;:".... section 13.10. No Third Party Beneficiaries. This Lease is
~:.~ not intended to create any right in or for the public, or any
:1iii;}(, Ineltlber of the public, including any owner of the Bonds any
~I!:subcontractor, supplier or any other third party, or to authorize
~~anyone n,ot a party to, this Lease to maintai~ a suit ~o enforce or
,"" );.take advantage of J.ts terms. The dutJ.es, oblJ.gatlons and
# responsibilities of the parties to this Lease with respect to
~~third parties shall remain as imposed by law.
.~~ section 13.11. Aqreement to Establish Tenant Process. The
}iY City and the Authority agree to work together to establish a
j~~: process or procedure pursuant to which the tenants of the Project
. ,::~t -19-
....," "~.
:;\~l;'i<'~ '
.11'1 have an opportunity to comment upon, express concerns or
" ievances in regard to, and request the formation of a tenants I
~uncil respecting, the operation and maintenance of the Project.
.." IN WITNESS WHEREOF, the city has executed this Lease in its
n:':;e with its seal hereunder affixed' and attested by its duly
authorized officers, and the Authority has caused this Lease to
})e executed in its name with its seal hereunto affixed and
attested by, its duly aU,thorize.d offic,ers. All of the above
occurred as of the date f~rst wr~tten above.
':n.
(SEAL)
CITY OF ASPEN, COLORADO,
as Lessor
'-,
By:
Titl
. ASPEN/PITKIN COUNTY HOUSING
AUTHORITY, as Lessee
By:
Titl
L.~
Boar of
a"h'
~Y\::"U~T0'~'~~
.Utle: Seer ary'
-
,-
-20-
EXHIBIT A
(DESCRIPTION OF PROJECT)
tS The Project inclu~ss and is located on the following parcel
..t pitkin county, Colorado:
.' . Lot 2, The Aspen Golf Course Subdivision, as shown
on the plat thereof recorded in Plat Book 7 at Page 34,
pitkin County records.
'.:
~:"~
....)
'}'.' Truscott Place is a combined permanent and seasonal employee
'housing complex administered by the Aspen/Pitkin County Housing
,"Uthority.
f~) Seasonal employees and music students will be housed in the
. istinq~ structure. This existing facility contains 50 studio
type rooms. Rehabilitation of the seasonal housing facility will
~olude complete re-roofing, replacement of heating and hot water
:system, redesign and installation of laundry facilities, painting
exterior siding and upgrading unit interiors as needed.
"t'. .
,.~ '. The new permanent employee housing will consist of two near
or image buildings, each with 23 one or two-bedroom units
(see list below). The total of 46 units and 34,271 livable
square feet are modular construction. The modular units will be
.double 2x4 walls with 1-1/2" spacing, 2xl0 @ 16" O.C. floors, 2x6
,@ 1.6'.' O.C. ceilings and 1/2" exterior wood siding. The modular
"construction~ will include. all interior finishes, fixtures and
'appliances. The new complex will incorporate 2016 square feet of
.~echanical and storage space into the basement of the structures.
,. TPe Project is designed to be energy and cost efficient.
The .site plan provides for berming and planting along the 9th
;tairway to help screen the proj ect from the golf course. In
,>,:" addition to the existing tennis courts, open areas incl~din9"
~ ':'.PlaygroUnd and basketball and volleyball courts are provJ.ded.
~'. Covered bike storage will be provided in the exist;,ing tennis.
-barn. As an auto-disincentive, a RFTA mini-bus will be provided
and scheduled specifically for the employees.
TRUSTCOTT PLACE DESCRIPTION
A-l
One
:f.;'". One
, Two
:.~,,~, .: Two
'~'lf> ",rtif:~t, ",
"J"-"l;b~ "f-"!.ITwo
?;~t~~;.~,. Two
-;:'''''iM:.l ...
r~:~"lr:..f.:'~~>.yf ,~
\.~j~lit~~:., Mechanical/Storage
'~,gn~~H.. TAL
<i:: ,,'.. .T 0
\ ~". }~."
Bedroom
Bedroom
Bedroom
Bedroom
Bedroom
Bedroom
l
Flats
(Loft)
"L"
Long
"L" (Loft)
Long (Loft)
No. of Total
Units S.F. S.F.
8 502 4016
4 556 2224
13 698 9074
2 694 1388
17 931 15827
2 871 1742
34271
2016
36287
A-2
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EXHIBIT B
(SCHEDULE OF BASE RENTALS)
Base Rental Payment Date Base Rental
Amount (7 days prior to) Amount
1, 1990 $133,542.19* January 1, 2000 $338,392.50
1990 161,245.00 July 1, 2000 105,630.50
1, 1991 281,245.00 January 1, 2001 345,630.50
1991 157,405.00 July 1, 2001 97,230.00
1, 1992 287,405.00 January 2, 2002 352,230.00
1992 153,212.50 July 1, 2002 88,050.00
1, 1993 288,212.50 January 1, 2003 363,050.00
1993 148,825.00 July 1, 2003 78,150.00
1, 1994 293,825.00 January 1, 2004 373,150.00
1994 144,076.25. July 1, 2004 67,530.00
1, 1995 304,076.25 Janua.ry 1, 2005 387,530.00
1995 138,796.25 JUly 1, 2005 56,010.00
1, 1996 308,796.25 January 1, 2006 401,010.00
1996 133,143.75 July 1, 2006 43,590.00
1, 1997 313 ;n3, 75 January 1, 2007 413,590.00
1997 127,113.75 July 1, 2007 30,270.00
1, 1998 322,113.75 January 1, 2008 430,272.00
1998 120,532.50 July 1, 2008 15,870.00
1, 1999 330,532.50 January 1, 2009 445,870.00
1999 113,392.50
Base Rentals shall cease to be paid on January 1, 2009,
although the Lease Team shall continue through
December 31, 2019.
First Base Rentals to be paid from City's Bond Proceeds
Fund.
,~
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EXHIBIT C
CITY OF ASPEN
BOND PROCEEDS FUND REQUISITION
SHIP TO:
DEPT DATE
FIN. DATE
SHIP DATE:
REQ. #
REQUESTED BY:
SERVICE - YES
DESCRIPTION
FA UNIT
PRICE
TOTAL
,j: ~.
TOTAL PRICE
INVOICE/PO
DESCRIPTION
BUDGET AVAIL.
AMOUNT
TOTAL AMOUNT
DATE
COMMENTS
,-
MANAGER:
(Three signatures required)
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SUBORDINATION AGREEMENT
THE CITY OF ASPEN, COLORADO, a municipal corporation, whose address is 130
South Galena Street, Aspen, Colorado 81611, Attn: City Manager, beneficiary of that certain
Deed of Trust ("Subordinated Deed of Trust") from TRUSCOTT PHASE II, LLLP, a Colorado
limited liability limited partnership, as Grantor dated September --' 2001 recorded at
in the real property record of Pitkin County, encumbering the real property and
improvements thereon located at 22475 State Highway 82, Aspen, Colorado 81611, more
particularly described on Exhibit A attached hereto and incorporated herein by reference, hereby
agrees that the Subordinated Deed of Trust and the obligations secured thereby shall be and
hereby are subordinated and junior in right to a deed of trust given by TRUSCOTT PHASE IT,
LLLP to [LENDER], to be recorded herewith, securing a promissory note in the principal
amount of $f 1 and to future advances thereunder, to the same extent as if the latter
deed of trust had been executed and recorded and all advances made thereunder prior in time to
the execution and recording of the Subordinated Deed of Trust.
IN WITNESS WHEREOF, the CITY OF ASPEN, COLORADO,
corporation, has caused this subordination Agreement to be executed this
,20_,
a municipal
day of
~
CITY OF ASPEN, COLORADO, a
municipal corporation
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By:
Printed Name:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of ,20-,
by . as of the City of Aspen, Colorado, a municipal
corporation.
Notary
My commission expires:
.-
02-95880.01
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02-95880.01
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EXHIBIT A
LEGAL DESCRIPTION
Lot 3, the Aspen Golf Course Subdivision, as shown on the plat
thereof, recorded in Plat Book 7, at Page 34, Pitkin County
records.
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PROMISSORY NOTE
$2,900,000.00 As of &rt {J7 ,2001
THIS PROMISSORY NOTE (this "Note") is executed as of the <-f -t"'- day of
~, 2001, by Truscott Phase II, LLLP, a Colorado limited liability limited partnership,
("Maker"), whose address is
soo e.\l-.~~ ~"'\.., ~"1-\.,'-l) '5\Ill\..\
1. Promise to Pay. For value received, Maker hereby promises to pay to the order of
the City of Aspen, Colorado, a municipal corporation ("Holder") the principal sum of Two
Million Nine Hundred Thousand Dollars ($2,900,000.00) ("Loan Amount"), together with
interest thereon as specified below.
2. Payment Schedule and Interest Rate,
(a) From and after the date hereof until the date on which the City of Aspen
issues certificates of occupancy (the "C/O Date") for those certain buildings to be known
as Truscott Phase II, comprising the multi-unit housing facility to be constructed on the
. real property more particularly described on Exhibit A (the "Property"), attached hereto
and inCorporated by this reference herein, Maker shall pay to Holder, as interest and not as
fi"a reduction of principal, an amount equal to one hundred percent (100%) of the Net
Operating Revenues, as defined below. Payments of such interest shall be made on an
annual basis, commencing on March 15, 2002 and continuing through March 15 of the
year of the C/O Date.
(b) From and after the C/O Date until the Due Date (defined below), the
outstanding principal balance shall bear interest ("Interest") at a fixed rate per annum
equal at all times to 5.72% per annum. Payments of principal and Interest shall be
payable as follows: (a) commencing on March 15 of the year after the C/O Date and
continuing on March 15 of each successive year until the Due Date, Maker shall pay to
Holder annual payments equal to GO % of the Net Operating Revenues for the preceding
calendar year; and (b) the entire outstanding principal balance, together with all accrued
and unpaid Interest thereon, if not previously paid, shall be finally due and payable in full
on the date that is forty-five (45) years after the C/O Date (the "Due Date"). Interest shall
be computed on a thirty (30) day month and a three hundred sixty (360) day year.
(c) "Net Operating Revenues" means all of the amounts receiv<<<l by Maker
from its operation, use or occupancy of the buildings located on the Property commonly
known as Truscott 200 and 300 Buildings ("Truscott 200 and 300 Buildings") as more
particularly described on Exhibit B attached hereto and incorporated by this reference
herein, including without limitation, rents, interest, fees, reimbursements and charges, less
all actual cash expenditures for operations including, without limitation, expenditures for
02-93153.03
City of Aspen, Colorado/I'roscott Phase n, LLLP
Promissory Note
-
"
principal and interest on Maker's indebtedness (other than this Note), taxes, insurance,
management fees, commissions, operating expenditures, reasonable reserves, repairs,
maintenance, and landscaping, Maker shall keep accurate and complete books of account,
which books shall be kept on a commercially and reasonably acceptable basis of
accounting. The books of account shall be open at all times to the inspection and
examination of Holder. Maker shall cause an audit of its books of account to be made as
of the closing of each fiscal year of the Maker by an independent accountant. Such
accountant shall certify the amount of the Net Operating Revenues to Maker and Holder on
or before March I of each year. Holder acknowledges and agrees that the sole source of
repayment of this Note, including interest and other charges hereunder, is the Net
Operating Revenues.
3. Prepayment Privilege. Maker shall have the right, at any time to prepay the
principal of this Note in whole or in part; provided, that concurrently with the prepayment of such
principal, Maker shall pay to Holder all accrued and unpaid interest on such portion of the
principal being prepaid.
4. Related Documents. "Related Documents" shall mean (a) the Deed of Trust,
Assignment of Leases and Rents and Security Agreement dated as of the date hereof granted by
Maker for the'benefit of Holder securing this Note ("Deed of Trust") which encumbers Truscott
Phase)l (the "Property"), and related UCC-I financing statements; (b) all other documents
.executed or delivered by Maker in connection with the indebtedness evidenced by this Note; and
(c) any and all amendments of any of the foregoing documents which may be executed from time
to time.
5. Application of Payments. All payments hereunder shall be applied first to the
repayment of sums, if any, advanced by Holder under the provisions of the Related Documents,
including sums advanced for the payment of taxes, assessments, insurance premiums, or
maintenance with respect to any of the Property encumbered by the Deed of Trust, together with
Interest on the sums advanced at theDefault Rate, as hereinafter defined, such interest to accrue
from the date of any advance until the advance is repaid; second, to late charges on defaulted
payments as hereinafter provided; third, to the payment of accrued and unpaid interest on the
principal of this Note, including interest accrued at the Default Rate as hereinafter provided; and
fourth, to the reduction of principal of this Note.
6. Late Charge on Late Payments - Default Interest. In the event that any payment
to be made hereunder is not made within forty-five (45) days of the date that such payment is due
hereunder, a late charge of .pi~ percent ~%) of such payment will be due:~the "Late
Charge"). In addition, any payment that is not made within ten (10) days of the date that such
payment is due hereunder, including sums, if any, advanced under the provisions of the Deed of
Trust, and including the entire balance of principal, interest, and other sums due upon the maturity
02-93153.03
City of Aspen, ColoradolTruscott Phase II, LLLP
Promissory Note
2
..
hereof, by acceleration or otherwise, shall bear interest at a rate of ~ percent ~ %)
per annum ("Default Rate"), such interest to accrue from the date due until paid.
Note:
7. Default. Each of the following shall constitute an "Event of Default" under this
(a) The failure of Maker to pay in full any amount due hereunder or under the
Deed of Trust by the date which is forty-five (45) days after the same is due as provided
herein or in the Deed of Trust (a "Late Payment"); provided, however if Maker pays a
Late Payment, and the Late Charge and interest computed at the Default Rate associated
therewith, on or before the date which is thirty (30) days after such payment was otherwise
due then Holder agrees to treat the Event of Default as having been cured;
(b) The failure of Maker to perform, satisfy, and observe in full, when due, any
of the obligations, covenants, conditions, and restrictions under this Note, or under the
Related Documents, not involving the payment of money, and such failure shall continue
for thirty (30) days after written notice from Holder to Maker of such failure, or if said
failure cannot reasonably be cured within said thirty (30) day period, if Maker shall not in
good faith commence to cure such failure within such thirty (30) day period or shall not
diligent! y proceed therewith to completion,
tii"
8., Right to Accelerate on Event of Default. Upon the OCCurrence of any Event of
Default hereunder, which has not been cured within applicable cure periods the entire balance of
principal, accrued interest, any other sums owing hereunder or under the Deed of Trust shall, at
the option of Holder, become at once due and payable without prior notice or demand.
9. Waivers of Demand, Etc. Maker and all parties now or hereafter liable for the
payment hereof, primarily or secondarily, directly or indirectly, and whether as endorser,
guarantor, surety, or otherwise, severally waive demand, presentment, notice of dishonor or
nonpayment, protest and notice of protest, and diligence in collecting, and consent to substitution,
release, Or impairment of collateral, the taking of additional collateral, extensions of time for
payment, renewals of this Note and acceptance of partial payments, whether before, at, or after
maturity, all or any of which may be made without notice to any of said parties and without
affecting their liability to Holder.
10, Costs of Collection. Maker and all parties now or hereafter liable for the payment
hereof agree to pay all costs and expenses, including reasonable attorneys' fees, incurred in
collecting this Note or any part thereof or in preserving, securing possession of, aJ!P realizing
upon any security for this Note whether or not legal proceedings are commenced.
11. Non-Recourse.
02-93153.03
City of Aspen, ColoradofI'roscott Phase n, LLLP
Promissory Note
3
(a) Except as otherwise provided herein, Holder shall not enforce the liability
and obligation of Maker to perform and observe the obligations contained in this Note or
the Deed of Trust by any action or proceeding wherein a money judgment shall be sought
against Maker or any partner of Maker, except that Holder may bring a foreclosure action,
action for specific performance or other appropriate action or proceeding to enable Holder
to enforce and realize upon the Deed of Trust; provided, however, that any judgment in
any action or proceeding shall be enforceable against Maker only to the extent of Maker's
interest in the Property. Holder, by accepting this Note and the Deed of Trust agrees that
it shall not, except as otherwise provided in the Deed of Trust, sue for, seek or demand
any deficiency judgment against Maker in any action or proceeding, under or by reason of
or under or in connection with this Note or the Deed of Trust.
(b) The provisions of subsection (a) above shall not (i) constitute a waiver,
release or impairment of any obligation evidenced or secured by this Note or the Deed of
Trust; (Ii) impair the right of Holder to name Maker as a party defendant in any action or
suit for judicial foreclosure and sale under the Deed of Trust; (iii) impair the right of
Holder to obtain the appointment of a receiver; or (iv) impair the right of Holder to obtain
a deficiency judgment or judgment on this Note against Maker if necessary to obtain any
insurance proceeds or condemnation awards to which Holder would be otherwise entitled
,
underlhe Deed of Trust; provided, however, that Holder shall only enforce such judgment
Iii- against the insurance proceeds and/or condemnation awards.
"
12. No Usury Payable. The provisions of this Note and of all agreements between
Maker and Holder are hereby expressly limited so that in no contingency or event whatsoever shall
the amount paid, or agreed to be paid, including Interest, to Holder for the use, forbearance, or
retention of the Loan Amount exceed the maximum amount permissible under applicable law. If,
from any circumstance whatsoever, the performance or fulfillment of any provision hereof or of
any other agreement between Maker and Holder shall, at the time performance or fulfillment of
such provision shall be due, exceed that limit for Interest prescribed by law, then, ipso facto, the
obligation to be performed or fulfilled shall be reduced to such limit, and if, from any
circumstance whatsoever, Holder should ever receive an amount which would exceed the highest
lawful rate, the amount which would be excessive Interest shall be applied to the reduction of the
principal balance owing hereunder (or, at Holder's option, be paid over to Maker) and not to the
payment of Interest.
13. Severability of Provisions. If any provision hereof or of the Deed of Trust shall,
for any reason and to any extent, be invalid or unenforceable, then the remainder of 1:\1e instrument in which such provision is contained, the application of the provision to other persons-, entities, or
circumstances, and any other instrument referred to herein shall not be affected thereby but instead
shall be enforceable to the maximum extent permitted by law.
02-93153.03
City of Aspen, ColoradolTroscott Phase ll, LLLP
Promissory Note
4
14. Successors to Maker or Holder. The term "Maker" as used herein shall include
the original maker of this Note and any party who may subsequently become primarily liable for
the payment hereof. The term "Holder" as used herein shall mean the original payee of this Note
or, if this Note is transferred, the then holder of this Note.
15, Notices. All notices, consents, or other instruments or communications provided for
under this Note shall be in writing, signed by the party giving the same, and shall be deemed
properly given and received on the earlier to occur of delivery to the stated address, or if mailed,
three (3) business days after posting at a United States Post Office, if sent by registered or
certified mail, postage prepaid, to the addresses set forth in the first paragraph of this Note, or to
such other address as a party may designate by written notice to the other party,
16. Governing Law. Regardless of the place of its execution, this Note shall be
construed and enforced in accordance with the laws of the State of Colorado.
17. Joint and Several Liability. The liability of each Maker for all obligations of
Maker under this Note shall be joint and several,
18. WAIVER OF JURY TRIAL. MAKER AND HOLDER KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER
MA YHA VE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR
. COUNTERCLAIM BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER OR IN
. CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY HERETO, THIS PROVISION IS A MATERIAL INDUCEMENT FOR MAKER AND
HOLDER TO ENTER INTO THE LOAN TRANSACTION EVIDENCED BY THE NOTE.
"MAKER":
TRUSCOTT PHASE II, LLLP,
a Colorado limited liability limited partnership
BY~
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Title: 6.8 ~~~
"
02-93153.03
City of Aspen, ColoradotTruscott Phase n, LLLP
Promissory Note
5
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DEED OF TRUST,
ASSIGNMENT OF LEASES AND RENTS,
AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, AND
SECURITY AGREEMENT (this "Deed of Trust") is given as of Sri. 1, ,2001, by the
Grantor named below to the Trustee named below, for the use and benefit of the Beneficiary
named below.
ARTICLE I
PARTIES,PROPERTY AND DEFINITIONS
The following terms and references shall have the meanings indicated:
Section 1.01. Grantor. Truscott Phase II, LLLP, a Colorado limited liability limited
partnership, whose notice address is .sw e . ~ s.~. 11.n.M...m..[g,I~ together with any
future owner of the Premises or any part thereof or interest tlierein.
Section 1.02. Beneficiary. City of Aspen, Colorado, a municipal corporation whose
notice address is Attn: City Manager, 130 South Galena Street, Aspen, Colorado 81611, together
with any future Holder of the Note.
Section 1.03. Trustee. The Public Trustee of Pitkin County, State of Colorado.
Section 1.04. Note. Grantor's promissory note dated as of even date herewith, payable
to the order of Beneficiary in the principal amount of Two Million Nine Hundred Thousand
Dollars ($2,900,000.00) the maturity date which is set forth in the Note, unless such due date is
accelerated. All terms and provisions of the Note are incorporated by this reference in this Deed
of Trust. Defined terms used herein shall have the same meaning as set forth in the Note unless
expressly provided to the contrary herein.
Section 1.05. Premises. The Premises shall mean all of Grantor's right, title and interest
in and to real property located in Pitkin County, State of Colorado more particularly described on
Exhibit A attached hereto and incorporated herein by this reference, (the "Real Property")
together with the following:
(a) All buildings, structures, and improvements now or hereafter located
thereon, as well as all rights-of-way, easements, and other appurtenances thereto;
(b) All machinery, apparatus, equipment, fittings, and fixtures (whether
actually or constructively attached, and including all trade, domestic, and ornamental
fixtures) now or hereafter located in, upon, or under the Real Property or improvements
on the Real Property and used or usable in connection with any present or future
operation thereof, including, but not limited to, all heating, air-conditioning, freezing,
lighting, laundry, incinerating and power equipment, engines, pipes, pumps, tanks,
02-93159.02
City of Aspen, ColoradolTruscott Phase II, LLLP
Deed of Trust
\ 1"111 "III "1111 III 11111111 \111\ 11"\ III "Ill I~\ ~)\.3~~~:~~~0~i :29P.
SILVIA DAVIS PITKIN COUNTY CO d____n____________
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rnotors, conduits, switchboards, plumbing, lifting, cleaning, fire prevention, fire
extinguishing, refrigerating, ventilating, and communications apparatus, boilers, water
heaters, ranges, furnaces and burners, appliances, vacuum cleaning systems, elevators,
escalators, shades, awnings, screens, storm doors and windows, stoves, refrigerators,
attached cabinets, partitions, ducts and compressors, rugs and carpets, draperies, and all
additions thereto and replacements therefor and excluding any personal property or
fixtures owned by any tenant leasing the Real Property;
(c) All of Grantor's right, title, and interest in any award or payment,
including interest thereon, resulting from the exercise of any right of eminent domain or
any other public or private taking of, injury to, or decrease in the value of, any of such
property; and
(d) All other or greater rights and interests of every nature in the Real
Property and in the possession or use thereof and income therefrom, whether now owned
or subsequently acquired by Grantor.
Section 1.06. Chattels. All goods, fixtures, building and other materials, supplies, and
other tangible personal property of every nature now owned or hereafter acquired by Grantor and
used, intended for use, or usable in the construction, development, or operation of the Premises,
together with all accessions thereto, replacements and substitutions therefor, and proceeds
thereof,
Section 1.07. Intangible Personalty. All accounts and all plans, specifications,
licenses, permits, and other general intangibles (whether now owned or hereafter acquired, and
including proceeds thereof) relating to or arising from Grantor's ownership, use, operation,
leasing, or sale of all or any part of the Premises.
Section 1.08. Loan Documents. The Note, this Deed of Trust, any financing statements
executed in connection herewith, and each other document executed or delivered by Grantor as
security for the Note or in connection with the transaction pursuant to which the Note has been
executed and delivered. The term "Loan Documents" also includes all modifications, extensions,
renewals, and replacements of each document referred to above.
Section 1.09. Secured Obligations. All present and future obligations of Grantor to
Beneficiary evidenced by or contained in the Loan Documents, whether stated in the form of
promises, covenants, representations, warranties, conditions, or prohibitions or in any other form.
If this Deed of Trust is foreclosed, either through Trustee or through the courts, the Secured
Obligations shall include an amount equal to any prepayment fee or premium which would be
payable under the terms of the Note if the Note were prepaid in full on the date of the foreclosure
sale.
ARTICLE II
GRANTING CLAUSE
Grant to Trustee. As security for the Secured Obligations, Grantor hereby grants,
bargains, sells, and conveys to Trustee, with power of sale, all of its estate, right, title and interest
02-93159.02
City of Aspen, ColoradolTruscott Phase II, LLLP
Deed of Trust
2
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in, to and under the Premises in trust for the use and benefit of Beneficiary, and subject to all
provisions of this Deed of Trust.
ARTICLE III
GRANTOR'S TITLE AND AUTHORITY
Section 3.01. Warranty of Title. Grantor represents and warrants to Beneficiary that
(a) it is the owner of title to the Premises, (b) that the Premises are subject only to the matters of
record; and (c) that no interest in the Premises, Chattels and Intangible Personalty has been
leased, conveyed, or transferred except in the ordinary course of the operation of the Premises.
The warranties contained in this Section shall survive foreclosure of this Deed of Trust, and shall
inure to the benefit of and be enforceable by any person who may acquire title to the Premises
pursuant to any such foreclosure.
Section 3.02. Waiver of Homestead and Other Exemptions. Grantor hereby waives
all rights to any homestead or other exemption to which Grantor would otherwise be entitled
under any present or future constitutional, statutory, or other provision of State of Colorado or
other state or federal law.
Section 3.03. Due Authorization, Each individual who executes this document on
behalf of Grantor represents and warrants to Beneficiary that such execution has been duly
authorized by all necessary corporate action on the part of Grantor.
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ARTICLE IV
GRANTOR'S AFFIRMATIVE COVENANTS
Section 4.01. Payment of Note. Grantor will pay all principal, interest, and other sums
payable under the Note, on the date when each such payment is due, without notice or demand.
Section 4.02. Performance of Other Obligations. Grantor will promptly and strictly
perform and comply with all other covenants, conditions, and prohibitions required of Grantor by
the terms of the Loan Documents.
Section 4.03. Other Encumbrances. Grantor will promptly and strictly perform and
comply with all covenants, conditions, and prohibitions required of Grantor in connection with
any other encumbrance affecting the Premises, the Chattels, or the Intangible Personality, or any
part thereof, regardless of whether such other encumbrance is superior or subordinate to the lien
hereof. Grantor covenants and agrees to provide Beneficiary with written notice of any default
or breach, whether or not such matters are timely cured, of any covenants, conditions or
prohibitions required in any of the foregoing encumbrances including copies of any notices of
such defaults or breaches received by Grantor in connection therewith,
Section 4.04. Payment of Taxes.
(a) Property Taxes. Grantor will payor cause to be paid, before delinquency,
all taxes and assessments, general or special, which may be levied or imposed at any time
against the Premises. Within thirty (30) days after each payment of any such tax or
02-93159.02
City of Aspen, Colorado/Truscott Phase II, LLLP
Deed of Trust
3
assessment, Grantor will deliver to Beneficiary, without notice or demand, an official
receipt for such payment.
(b) Intangible Taxes. If by reason of any statutory or constitutional
amendment or judicial decision adopted or rendered after the date hereof, any tax,
assessment, or similar charge is imposed against the Note, against Beneficiary, or against
any interest of Beneficiary in any real or personal property encumbered hereby, Grantor
will pay such tax, assessment, or other charge before delinquency and will indemnify
Beneficiary against all loss, expense, or diminution of income in connection therewith. In
the event Grantor is unable to do so, either for economic reasons or because the legal
provision or decision creating such tax, assessment, or charge forbids Grantor from doing
so, then the Note will, at Beneficiary's option, become due and payable in full upon thirty
(30) days' notice to Grantor.
Section 4.05. Maintenance of Insurance.
(a) Coverages Required, Grantor will keep or will cause to keep the Premises
insured with all risk replacement cost insurance with an agreed amount endorsement, rent
insurance, flood risk insurance and war risk insurance (if available at commercially
reasonable rates), and such other kinds of insurance as Beneficiary may from time to time
require, in amounts and forms and with insurers satisfactory to Beneficiary. In addition,
Grantor will maintain or will cause to maintain public liability insurance with respect to
all activities on or relating to the Premises, also in amounts and forms and with insurers
satisfactory to Beneficiary. Each hazard insurance policy will provide that all losses are
payable solely to Beneficiary pursuant to a mortgagee endorsement satisfactory to
Beneficiary, and each liability insurance policy will, without condition or restriction,
name Beneficiary as an additional insured. All required policies will provide for thirty
(30) days' written notice to Beneficiary prior to the effective date of any cancellation.
The original or a certified copy of each insurance policy will be delivered to Beneficiary,
and such delivery will constitute an assignment to Beneficiary, as further security for the
Secured Obligations, of all unearned premiums returnable upon cancellation of each such
policy,
(b) Renewal Policies. Upon the request of Beneficiary, not less than thirty
(30) days prior to the expiration date of each insurance policy required pursuant to
Section 4.05. (a) above, Grantor will deliver to Beneficiary an appropriate renewal policy
(or a certified copy thereof), together with evidence satisfactory to Beneficiary that the
applicable premium has been prepaid.
(c) Application of Hazard Insurance Proceeds, Any insurance proceeds
received by Beneficiary with respect to an insured casualty may, in Beneficiary's sole
discretion, either (i) be retained and applied by Beneficiary toward payment of the
Secured Obligations, or (ii) be paid over, in whole or in part and subject to such
conditions as Beneficiary may impose, to Grantor to pay for repairs or replacements
necessitated by the casualty; provided, that if all of the Secured Obligations have been
performed or are discharged by the application of less than all of such insurance
proceeds, then any remaining proceeds will be paid over to Grantor. Grantor hereby
02-93159.02
City nf Aspen, Cnloradnrrruscntt Phase 11. LLLP
Deed of Trust
4
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authorizes and directs any affected insurance company to make payment of the insurance
proceeds directly to Beneficiary upon Beneficiary's request. Beneficiary will have no
obligation to see to the proper application of any insurance proceeds paid over to Grantor,
nor will any such proceeds received by Beneficiary bear interest or be subject to any
other charge for the benefit of Grantor.
(d) Successor's Rights, Any person who acquires title to the Premises or the
Chattels upon foreclosure hereunder will succeed to all of Grantor's rights under all
policies of insurance maintained pursuant to this Section.
Section 4.06. Maintenance and Repair of Premises and Chattels. Grantor will cause
the Premises and the Chattels to be maintained in good condition and repair.
Section 4.07. Eminent Domain; Private Damage. If all or any part of any property
encumbered hereby is taken or damaged by eminent domain or any other public or private action,
Grantor will notify' Beneficiary promptly of the time and place of all meetings, hearings, trials,
and other proceedings relating to such action. Beneficiary may participate in all negotiations and
appear and participate in all judicial or arbitration proceedings concerning any award or payment
which may be due as a result of such taking or damaging, and may, in Beneficiary's reasonable
discretion, compromise or settle, in the names of both Grantor and Beneficiary, any claim for any
such award or payment. Any such award or payment is to be paid to Beneficiary and will be
applied first to reimburse Beneficiary for all costs and expenses, including attorneys' fees,
incurred by Beneficiary in connection with the ascertainment and collection of such award or
payment. The balance, if any, of such award or payment may, in Beneficiary's sole discretion,
either (a) be retained by Beneficiary and applied toward the Secured Obligations, or (b) be paid
over, in whole or in part and subject to such conditions as Beneficiary may impose, to Grantor
for the purpose of restoring, repairing, or rebuilding any part of the encumbered property
affected by the taking or damaging. Beneficiary will have no duty to see to the application of any
part of any award or payment released to Grantor, Grantor's duty to pay the Note in accordance
with its terms and to perform the other Secured Obligations will not be suspended by the
pendency or discharged by the conclusion of any proceedings for the collection of any such
award or payment, and any reduction in the Secured Obligations resulting from Beneficiary's
application for any such award or payment will take effect only when Beneficiary receives such
award or payment. If this Deed of Trust has been foreclosed prior to the Beneficiary's receipt of
such award or payment, Beneficiary may nonetheless retain such award or payment to the extent
required to reimburse Beneficiary for all costs and expenses, including attorneys' fees, incurred
in connection therewith, and to discharge any deficiency remaining with respect to the Secured
Obligations.
Section 4.08. Mechanics' Liens. Grantor will keep the Premises free and clear of all
liens and claims of liens by contractors, subcontractors, mechanics, laborers, materialmen, and
other such persons directed to do services or provide materials by Grantor, and will cause any
recorded statement of any such lien arising by or through Grantor to be released of record within
thirty (30) days after the recording thereof. Notwithstanding the preceding sentence, however,
Grantor will not be deemed to be in default under this Section if and so long as Grantor (a)
contests in good faith the validity or amount of any asserted lien and diligently prosecutes or
defends an action appropriate to obtain a binding determination of the disputed matter, and (b)
02-93159.02
City of Aspen. Colorado/Truscott Phase II, LLLP
Deed of Trust
5
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provides Beneficiary with such security as Beneficiary may require to protect Beneficiary against
all loss, damage, and expense, including attorneys' fees, which Beneficiary might incur if the
asserted lien is determined to be valid.
Section 4.09. Defense of Actions. Grantor will defend, at Grantor's expense, any
action, proceeding or claim which affects any property encumbered hereby or any interest of
Beneficiary in such property or in the Secured Obligations, and will indemnify and hold
Beneficiary harmless from all loss, damage, cost, or expense, including reasonable attorneys'
fees, which Beneficiary may incur in connection therewith.
Section 4.10. Expenses of Enforcement. Grantor will pay all costs and expenses,
including reasonable attorneys' fees, which Beneficiary may incur in connection with any effort
or action (whether or not litigation or foreclosure is involved) to enforce or defend Beneficiary's
rights and remedies under any of the Loan Documents including, but not limited to, all attorneys'
fees and other expenses incurred by Beneficiary in securing title to or possession of, and
realizing upon, any security for the Secured Obligations.
Section 4.11. Assembly of Chattels. Upon the occurrence of any Event of Default
hereunder, Grantor will, at Beneficiary's request, assemble the Chattels and make them available
to Beneficiary at any place designated by Beneficiary which is reasonably convenient to both
parties.
Section 4.12. Further Assurances; Estoppel Certificates. Grantor will, at its sole cost
and expense, do, execute, acknowledge and deliver to Beneficiary upon demand, all and every
such further acts, documents and assurances which Beneficiary may reasonably request to
confirm or perfect the liens and security interests created or intended to be created hereby, or to
confirm or perfect any evidence of the Secured Obligations, including, without limitation,
financing statements and other security instruments. Grantor will also, within ten (10) days afte!
any request by Beneficiary, deliver to Beneficiary a signed and acknowledged statemen1
certifying to Beneficiary, or to any proposed transferee of the Secured Obligations, (a) the
balance of principal, interest, and other sums then outstanding under the Note, and (b) whetheJ
Grantor claims to have any offsets or defenses with respect to the Secured Obligations and, if so,
the nature of such offsets or defenses. Grantor's failure to provide such a statement within such
ten (10) day period will result in Grantor's being conclusively bound by any representation
which Beneficiary may make as to those matters so long as that representation is consistent with
Beneficiary's records of this transaction,
ARTICLE V
GRANTOR'S NEGATIVE COVENANTS
Section 5.01. Waste and Alterations, Grantor will not commit or permit any waste
with respect to the Premises or the Chattels, nor will Grantor, except as provided in Section 5.08,
cause or permit any improvements that may be constructed upon the Premises including, but not
limited to, any building, structure, parking lot, driveway, landscape scheme, or other ground
improvement, to be removed, demolished, or materially altered without the prior written consent
of Beneficiary,
02-93159.02
City of Aspen, Colorado/Truscott Phase II, LLLP
Deed of Trust
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Section 5.02. Zoning and Private Covenants. Except as provided in Section 5.08,
Grantor will not initiate, join in, or consent to any change in any zoning ordinance or
classification, any change in the "zone lot" or "zone lots" (or similar zoning unit or units)
presently comprising the Real Property, any transfer of development rights, any change in any
private restrictive covenant, or any change in any other public or private restriction limiting or
defining the uses which may be made of the Real Property or any part thereof without the
express written consent of Beneficiary. If under applicable zoning provisions the use of all or any
part of the Real Property is or becomes a nonconforming use, Grantor will not cause or permit
such use to be discontinued or abandoned without the express written consent of Beneficiary.
Section 5.03. Interference with Leases. Except as provided in Section 5.08, in the
event that Grantor leases all or any portion of the Premises, Grantor will not, without the prior
written consent of Beneficiary (a) collect rent from all or any part of the Premises for more than
six months. in advance, (b) assign the rents from the Premises or any part thereof, ( c) consent to
the cancellation or surrender of all or any part of any such lease, except that Grantor may in good
faith terminate any such lease for nonpayment of rent or other material breach by the tenant, or
(d) in any other manner impair the value of the Premises or the security of this Deed of Trust.
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Section 5.04. Transfer of Premises. Grantor will not transfer, either voluntarily or
involuntarily, the Premises or any part thereof or interest therein, without the prior written
consent of Beneficiary, which consent may be granted or denied in Beneficiary's sole discretion.
If Beneficiary consents, any such transfer shall be subject to this Deed of Trust and any other
documents which evidence or secure the loan secured hereby, and any such transferee shall
assume all of Grantor's obligations hereunder and thereunder and agree to be bound by all
provisions and perform all obligations contained herein and therein, Consent to one such transfer
shall not be deemed to be a waiver of the right to require consent to future or successive
transfers. As used herein, ''transfer'' shall include, without limitation, any sale, assignment
(including, without limitation, any collateral or security assignment or transfer), ground lease or
conveyance except leases entered into after the date hereof for occupancy subordinate to this
Deed of Trust or the sale, conveyance, transfer or other disposition (including, without limita-
tion, any collateral or security assignment or transfer) of more than ten percent (10%) of the
company interest of any shareholder, partner, member, manager or managing member. Anything
contained in this Section to the contrary notwithstanding, Grantor may transfer the Premises to
either the Aspen/Pitkin County Housing Authority ("APCHA") or to a corporation, partnership,
limited liability company or other entity which is 100% owned and controlled by Grantor or
APCHA (a ''Permitted Transferee") provided on or before the effectiveness of such transfer to
such Permitted Transferee Grantor shall (i) notify Beneficiary in writing of such transfer and
provide Beneficiary a copy of the formation documents for such Permitted Transferee together
with evidence that such Permitted Transferee is duly organized and in good standing in the State
of Colorado, (ii) deliver to Beneficiary evidence and documentation reasonably acceptable to
Beneficiary that such Permitted Transferee has assumed all of Grantor's obligations under and in
respect of the Note, this Deed of Trust, any other Loan Document and the Obligations and (iii)
deliver to Beneficiary an unconditional guaranty (in form and substance acceptable to
Beneficiary in Beneficiary's sole and absolute discretion) of the payment and performance of the
Obligations executed by each Grantor in favor of Beneficiary. Any permitted transfer by the
Grantor shall also comply with any private covenants and restrictions of record or binding upon
the Grantor or the Premises.
02-93159.02
City of Aspen, ColoradolTruscott Phase II, LLLP
Deed of Trust
7
Section 5.05. Further Encumbrance of Premises. Grantor will neither create nor
permit any encumbrance, either voluntarily or involuntarily, against the Premises or any part
thereof or interest therein, without the prior written consent of Beneficiary, which consent may
be granted or denied in Beneficiary's sole discretion. If Beneficiary consents, any such
encumbrance shall be subject to this Deed of Trust and any other documents which evidence or
secure the loan secured hereby. Consent to one such encumbrance shall not be deemed to be a
waiver of the right to require consent to future or successive encumbrances. As used herein,
"encumber" shall include, without limitation, the placing or permitting the placing of any
mortgage, deed of trust, assignment of rents or other security device. Notwithstanding the
foregoing, Beneficiary acknowledges and consents to Grantor further encumbering the Property
for purposes of securing a construction loan and a permanent loan to be used by Grantor in
developing a multi-unit housing facility known as Truscott Phase II. Beneficiary shall execute
such subordination agreements as Grantor may reasonably request in connection with such
construction and permanent fmancing of the Property.
Section 5.06. Transfer or Removal of Chattels. Except as provided in Section 5.08,
Grantor will not sell, transfer or remove from the Premises all or any part of the Chattels, unless
the items sold, transferred, or removed are simultaneously replaced with similar items of equal or
greater value.
Section 5.07. Improper Use of Premises or Chattels. Grantor will not use the
Premises or the Chattels for any purpose or in any marmer which violates any applicable law,
ordinance, or other governmental requirement, the requirernents or conditions of any insurance
policy, or any private covenant.
Section 5.08. Exceptions to Negative Covenants. Beneficiary acknowledges that
Grantor intends to rehabilitate certain improvements on the Property and construct new
improvements on the Property, which improvements together constitute a multi-unit affordable
housing facility consisting of approximately 87 units (the "Project"), Accordingly,
notwithstanding the negative covenants contained in Sections 5.01, 5.02, 5.03 and 5.06, Grantor
shall be entitled, without the prior written consent of Beneficiary, to take all actions which are
necessary or desirable for the completion of the Project.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. Each of the following events will constitute an Event
of Default under this Deed of Trust and under each of the other Loan Documents:
(a) Failure to Pay Note. Grantor's failure to make any payment within fifteen
(15) days of the date when such payment is due under the terms of the Note;
(b) Violation of Other Covenants. Grantor's failure to perform or observe any
other covenant, condition, or prohibition contained in any of the Loan Documents;
(c) Misrepresentation or Breach of Warranty. Beneficiary's determination that
any statement or warranty contained in any of the Loan Documents is untrue or
misleading in any material respect;
02-93159.02
City of Aspen, ColoradolTruscott Phase II, LLLP
Deed of Trust
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(d) Unpermitted Transfer or Encumbrance. Grantor's transfer or further
encumbrance of the Premises in violation of Section 5.04. and Section 5.05. ;
(e) Assertion of Priority. The assertion (except by the owner of an encum-
brance expressly allowed pursuant to Section 5.05 or excepted from Grantor's warranty
of title herein) of any claim of priority over this Deed of Trust, by title, lien, or otherwise,
unless Grantor within thirty (30) days after such assertion either causes the assertion to be
withdrawn or provides Beneficiary with such security as Beneficiary may require to
protect Beneficiary against all loss, damage, or expense, including attorneys' fees, which
Beneficiary may incur in the event such assertion is upheld;
(f) Dissolution, Insolvency, or Bankruptcy. The dissolution, termination, or
liquidation of Grantor or of any other person or entity directly or indirectly liable for the
Secured Obligations, or the making by any such person of any assignment for the benefit
of creditors, or the appointment of a receiver, liquidation, or trustee of the property of any
such person, or the filing of any petition for the bankruptcy, reorganization, or
arrangement of any such person pursuant to the federal Bankruptcy Code or any similar
state or federal statute, or the adjudication of any such person as bankrupt or insolvent; or
(g) Default Under Any Other Encumbrance or Obligation. Grantor's breach
or default under any other covenant, condition, restriction, obligation or encumbrance
affecting the Property, including, without limitation any default or breach under the
Agreement of Tenancy in Common affecting the Premises,
Section 6.02. Grace Periods for Certain Defaults. Notwithstanding any other
provision of this Article 6 or any contrary provision of any other Loan Document, in the event of
any default which involves only failure to pay a sum of money when due under the Note prior to
the scheduled maturity of the Note, Beneficiary will not accelerate the maturity of the Note or
exercise any other remedy under the Loan Documents unless such failure constitutes an Event of
Default under the Note. In the event of any default which does not involve failure to pay a sum
of money when due, failure to maintain any required insurance, or any prohibited transfer or
further encumbrance of the Premises, Beneficiary will not accelerate the maturity of the Note or
exercise any other remedy under the Loan Documents unless such default continues for thirty
(30) days after Beneficiary has given Grantor notice of such default. Beneficiary's refusal to
grant any consent or do any other affirmative act which would otherwise be required of
Beneficiary will not constitute the exercise of a remedy for purposes of this Section, and aU such
obligations of Beneficiary wiU be suspended so long as any default exists on the part of Grantor.
ARTICLE VII
BENEFICIARY'S REMEDIES
Subject to the cure rights set forth herein, upon the occurrence of any Event of Default
hereunder, Beneficiary may exercise any remedy available at law or in equity including, but not
limited to, those listed below and those listed in the other Loan Documents, in such sequence or
combination as Beneficiary may determine in Beneficiary's sole discretion:
02-93159.02
City of Aspen, Colorado/Truscott Phase II, LLLP
Deed of Trust
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Section 7.01. Performance of Defaulted Obligations. If Grantor fails to perform any
of its covenants and agreements herein or in the Note or any Loan Documents, and such failure is
not remedied prior to the expiration. of any grace and cure period provided in the document at
issue, Beneficiary may, but shall not be obligated to, make any payment or perform any other
obligation required by Grantor in any form and marmer deemed expedient. Grantor hereby
irrevocably appoints Beneficiary as the true and lawful attorney-in-fact for Grantor to make any
such payment and perform any such obligation in the name of Grantor. All payments made and
expenses (including reasonable attorneys' fees) incurred by Beneficiary in this connection,
together with interest thereon at the "Default Rate" (as defined in the Note), from the date paid or
incurred until repaid, will be part of the Secured Obligations and will be immediately due and
payable by Grantor to Beneficiary. In lieu of advancing Beneficiary's own funds for such
purposes, Beneficiary may use any funds of Grantor which may be in Beneficiary's possession
including, but not limited to, insurance or condemnation proceeds and amounts deposited for
taxes, insurance premiums or other purposes.
Section 7.02. Specific Performance and Injunctive Relief. Notwithstanding the
availability of legal remedies, Beneficiary will be entitled to obtain specific performance,
mandatory or prohibitory injunctive relief, or other equitable relief requiring Grantor to cure or
refrain from repeating any default.
Section 7.03. Suit for Monetary Relief. With or without accelerating the maturity of
the Secured Obligations, Beneficiary may sue from time to time for any payment due under any
ofthe Loan Documents, or for money damages resulting from Grantor's default under any of the
Loan Documents.
Section 7.04. Possession of Premises. Beneficiary may enter and take possession of the
Premises without seeking or obtaining the appointment of a receiver, may employ a managing
agent for the Premises, and may lease or rent all or any part of the Premises, either in
Beneficiary's name or in the name of Grantor, and may collect the rents, issues, and profits of the
Premises. Any revenues collected by Beneficiary under this Section will be applied first toward
payment of all expenses (including attorneys' fees) incurred by Beneficiary, together with
interest thereon at the Default Rate from the date incurred until repaid, and the balance, if any,
will be applied against the Secured Obligations.
Section 7.05. Enforcement of Security Interests. Beneficiary may exercise all rights
of a secured party under the State of Colorado Uniform Commercial Code with respect to the
Chattels and the Intangible Personalty including, but not limited to, taking possession of,
holding, and selling the Chattels and enforcing or otherwise realizing upon any accounts and
general intangibles. Any requirement for reasonable notice of the time and place of any public
sale, or of the time after which any private sale or other disposition is to be made, will be
satisfied by Beneficiary's giving of such notice to Grantor at least five (5) days prior to the time
of any public sale or the time after which any private sale or other intended disposition is to be
made.
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g.Jthe sums secured by this Deed of Trust shall be immediately due and payable ("Acceleration").
Section 7.06. Foreclosure Against Premises. Subject to the cure rights contained in the
02-93159.02
City of Aspen, Colorado/Truscott Phase II. LLLP
Deed of Trust
10
To exercise this option, Beneficiary may invoke the power of sale and any other remedies
permitted by law. Beneficiary shall be entitled to collect all reasonable costs and expenses
incurred in pursuing the remedies provided in this Deed of Trust, including, but not limited to,
reasonable attorney's fees. If Beneficiary invokes the power of sale, Beneficiary shall give
written notice to Trustee of such election, Trustee shall give such notice to Grantor of Grantor's
rights as is provided by law. Trustee shall record a copy of such notice as required by law.
Trustee shall advertise the time and place of the sale of the Premises for not less than four (4)
weeks in a newspaper of general circulation in each county in which the Premises is situated, and
shall mail copies of such notice of sale to Grantor and other persons as prescribed by law. After
the lapse of such time as may be required by law, Trustee, without demand on Grantor, shall sell
the Premises at public auction to the highest bidder for cash at the time and at the place (which
may be on the Premises or any part thereof as permitted by law) then authorized by law as may
be specified in the notice of sale, in one or more parcels as Trustee may think best and in such
order as Trustee may determine. Trustee shall apply the proceeds of the sale in the following
order: (a) to all reasonable costs and expenses of the sale, including, but not limited to,
reasonable Trustee's and attorney's fees and costs of title evidence; (b) to reduce or discharge the
Secured Obligations in such order as Beneficiary may elect; and (c) the excess, if any, to the
person or persons legally entitled thereto. Beneficiary or the holder of the Trustee's certificate of
purchase shall be entitled to a receiver for the Premises after Acceleration, and shall also be so
entitled during the time covered by foreclosure proceedings and the period of redemption, if any,
and shall be entitled thereto as a matter of right without regard to the solvency or insolvency of
Grantor or of the then owner of the Premises, and without regard to the value thereof. Upon
Acceleration or abandonment of the Premises, Beneficiary, in person, by agent or by
judicially-appointed receiver, shall be entitled to enter upon, take possession of and manage the
Premises and to collect the rents of the Premises including those past due. All rents collected by
Beneficiary or the receiver shall be applied, frrst, to payment of the costs of preservation and
management of the Premises; second, to payments due upon prior liens; and then to the Secured
Obligations. Beneficiary and the receiver shall be liable to account only for those rents actually
received. Nothing in this Section dealing with foreclosure procedures or specifying particular
actions to be taken by Beneficiary or by Trustee or any similar officer shall be deemed to
contradict or add to the requirements and procedures now or hereafter specified by State of
Colorado law, and any such inconsistency shall be resolved in favor of State of Colorado law
applicable at the time of foreclosure.
Section 7.07. Appointment of Receiver. Beneficiary shall be entitled, as a matter of
absolute right and without regard to the value of any security for the Secured Obligations or the
solvency of any person liable therefor, to the appointment of a receiver for the Premises upon
application to any court of competent jurisdiction. Grantor shall have the right to a hearing or
notice of hearing prior to the appointment of a receiver. Such receiver and his agents shall be
empowered (a) to take possession of the Premises and any businesses conducted by Grantor or
any other person thereon and any business assets used in connection therewith, (b) to exclude
Grantor and Grantor's agents, servants and employees from the Premises, or, at the option of the
receiver, in lieu of such exclusion, to collect a fair market rental from any such persons
occupying any part of the Premises, ( c) to collect the rents, issues, profits and income therefrom,
(d) to complete any construction which may be in progress, (e) to do such maintenance and make
such repairs and alterations as the receiver deems necessary, (f) to use all stores of materials,
supplies and maintenance equipment on the Premises and replace such items at the expense of
02-93159.02
City of Aspen, ColoradolTruscott Phase II, LLLP
Deed of Trust
11
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the receivership estate, (g) to pay all taxes and assessments against the Real Property and the
Chattels, all premiums for insurance thereon, all utility and other operating expenses, and all
sums due under any prior or subsequent encumbrance, (h) to borrow from Beneficiary such
funds as may reasonably be necessary to the effective exercise of the receiver's powers, on such
terms as may be agreed upon by the receiver and Beneficiary, and (i) generally to do anything
which Grantor could legally do if Grantor were in possession of the Premises. All expenses
incurred by the receiver or his agents, including obligations to repay funds borrowed by the
receiver, shall constitute a part of the Secured Obligations. Any revenues collected by the
receiver shall be applied first to the expenses of the receivership, including attorneys' fees
incurred by the receiver and by Beneficiary, together with interest thereon at the Default Rate
from the date incurred until repaid, and the balance shall be applied toward the Secured
Obligations or in such other manner as the court may direct. Unless sooner terminated with the
express consent of Beneficiary, any such receivership will continue until the Secured Obligations
have been discharged in full, or untiltitle to the Premises has passed after foreclosure sale and all
applicable periods of redemption have expired, or until a court of competent jurisdiction orders
the receiver discharged,
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Assignment of Rents. This Deed of Trust is intended to constitute a
present, absolute and irrevocable assignment of any rents now or hereafter accruing, and Grantor,
without limiting the generality of the Granting Clause hereof, specifically hereby presently,
absolutely and irrevocably assigns all of the rents now or hereafter accruing to Beneficiary. The
aforesaid assignment shall be effective immediately upon the execution of this Deed of Trust and
is not conditioned upon the occurrence of any Event of Default hereunder or any other
contingency or event, provided, however, that Beneficiary hereby grants to Grantor the right and
license to collect and receive the rents as they become due, and, except as otherwise provided
herein, not in advance, so long as no Event of Default exists hereunder. Immediately upon the
occurrence of any such Event of Default, the foregoing right and license shall be automatically
terminated and of no further force or effect. Nothing contained in this Section or elsewhere in
this Deed of Trust shall be construed to make Beneficiary a mortgagee in possession unless and
until Beneficiary actually takes possession of the Premises, nor to obligate Beneficiary to take
any action or incur any expense or discharge any duty or liability under or in respect of any
leases or other agreements relating to the Premises or any part thereof.
Section 8.02. Security Agreement. This Deed of Trust constitutes a security agreement
under the applicable Uniform Commercial Code with respect to the Chattels, the Intangible
Personalty and such other of the Premises which is personal property. In addition to the right and
remedies granted to Beneficiary by other applicable law or by this Deed of Trust, Beneficiary
shall have all of the rights and remedies with respect to the Chattels, the Intangible Personalty,
and such other personal property as are granted to a secured party under the applicable Uniform
Commercial Code, including, without limitation, taking possession of, holding and selling the
Chattels, the Intangible Personalty and such other personal property. After an Event of Default
and upon Beneficiary's request, Grantor shall promptly and at its expense assemble the Chattels,
the Intangible Personalty and such other personal property and make the same available to
Beneficiary at a convenient place acceptable to Beneficiary. Grantor shall pay to Beneficiary on
02-93159.02
City of Aspen, Colorado/Truscott Phase II. LLLP
Deed of Trust
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demand, with interest at the Default Rate, any and all expenses, including attorneys' fees,
incurred by Beneficiary in protecting its interest in the Chattels, the Intangible Personalty and
such other personal property and in enforcing its rights with respect thereto. Any notice of sale,
disposition or other intended action by Beneficiary with respect to the Chattels, the Intangible
Personalty, and such other personal property sent to Grantor in accordance with the provisions
hereof at least ten (10) days prior to such action shall constitute reasonable notice to Grantor.
The proceeds of any such or disposition, or any part thereof, may be applied by Beneficiary to
the Secured Obligations in such order and proportions as Beneficiary in its discretion shall deem
appropriate.
Section 8.03. Time of the Essence. Time is of the essence with respect to all provisions
of the Loan Documents.
Section 8.04. Joint and Several Obligations. If Grantor is more than one person or
entity, then all persons or entities comprising Grantor are jointly and severally liable for all of the
Secured Obligations.
Section 8.05. Rights and Remedies Cumulative. Beneficiary's rights and remedies
under each of the Loan Documents are cumulative of the rights and remedies available to
Beneficiary under each of the other Loan Documents and those otherwise available to
Beneficiary at law or in equity. No act of Beneficiary shall be construed as an election to proceed
under any particular provision of any Loan Document to the exclusion of any other provision in
the same or any other Loan Document, or as an election of remedies to the exclusion of any other
remedy which may then or thereafter be available to Beneficiary.
Section 8.06. No Implied Waivers. Beneficiary shall not be deemed to have waived
any provision of any Loan Document unless such waiver is in writing and is signed by
Beneficiary. Without limiting the generality of the preceding sentence, neither Beneficiary's
acceptance of any payment with knowledge of a default by Grantor, nor any failure by
Beneficiary to exercise any remedy following a default by Grantor, shall be deemed a waiver of
such default, and no waiver by Beneficiary of any particular default on the part of Grantor shall
be deemed a waiver of any other default or of any similar default in the future.
Section 8.07. Dealings with Successor Owners. If the Premises or any interest in the
Premises are transferred to any person other than Grantor, whether voluntarily or involuntarily
and whether or not Beneficiary has consented to such transfer, then Beneficiary may deal with
such successor owner in all matters relating to the Secured Obligations, and no such dealings,
including, but not limited to, any change in the terms of the Secured Obligations, will be deemed
to discharge or impair the obligations of Grantor to Beneficiary under the Loan Documents.
Section 8.08. No Third Party Rights. No person shall be a third party beneficiary of
any provision of any of the Loan Documents. All provisions of the Loan Documents favoring
Beneficiary are intended solely for the benefit of Beneficiary, and no third party shall be entitled
to assume or expect that Beneficiary will not waive or consent to modification of any such
provision in Beneficiary's sole discretion.
02-93159.02
City of Aspen, Colorado/Truscott Phase II. LLLP
Deed of Trust
13
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Section 8.09. Preservation of Liability and Priority. Without affecting the liability of
Grantor or of any other person (except a person expressly released in writing) for payment and
performance of all of the Secured Obligations, and without affecting the rights of Beneficiary
with respect to any security not expressly released in writing, and without impairing in any way
the priority of this Deed of Trust over the interests of any person acquired or first evidenced by
recording subsequent to the recording hereof, Beneficiary may, either before or after the maturity
of the Note, and without notice or consent: (a) release any person liable for payment or
performance of all or any part of the Secured Obligations; (b) make any agreement altering the
terms of payment or performance of all or any of the Secured Obligations; (c) exercise or refrain
from exercising, or waive, any right or remedy which Beneficiary may have under any of the
Loan Documents; (d) accept additional security of any kind for any of the Secured Obligations;
or ( e) release or otherwise deal with any real or personal property securing the Secured
Obligations, Any person acquiring or recording evidence of any interest of any nature in the
Premises, the Chattels, or the Intangible Personalty shall be deemed, by acquiring such interest
or recording any evidence thereof, to have agreed and consented to any or all such actions by
Beneficiary.
Section 8.10. Waiver of Jury Trial. GRANTOR AND BENEFICIARY
KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING OR COUNTERCLAIM BASED ON THIS AGREEMENT, OR ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR GRANTOR AND BENEFICIARY TO ENTER INTO THE LOAN
TRANSACTION EVIDENCED BY THE NOTE.
Section 8.11. Notices and Agency. Any notice required or permitted to be given by
Grantor or Beneficiary under any of the Loan Documents must be in writing and will be deemed
given upon personal delivery or on the second business day after the mailing thereof,by
registered or certified United States mail, postage prepaid, to the appropriate part at its address
shown on the first page of this Deed of Trust. Either party may change such party's address for
notices by giving notice to the other party in accordance with this Section, but no such change of
address will be effective as against any person without actual knowledge thereof.
Section 8.12. No Merger of Estates. Unless expressly provided otherwise, in the event
that ownership of this Deed of Trust and title to the fee estate in the Premises encumbered hereby
shall becorne vested in the same person or entity, this Deed of Trust shall not merge in said title
but shall continue to be and remain a valid and subsisting lien and/or trust deed on said estates in
the Premises for the amount secured hereby.
Section 8.13. Defeasance. Upon payment and performance in full of all of the Secured
Obligations, Beneficiary will execute and deliver to Grantor such documents as may be required
to release this Deed of Trust of record.
Section 8.14. Severability. Wherever possible, each provision of the Loan Documents
shall be interpreted so as to be effective and valid under State of Colorado law. If any provision
02-93159,02
City of Aspen, Colorado/Truscott Phase II, LLLP
Deed of Trust
14
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of any Loan Document is, for any reason and to any extent, invalid or unenforceable, then
neither the remainder of the Loan Document in which such provision appears, nor any other
Loan Document, nor the application of the provision to other persons or in other circumstances,
shall be affected by such invalidity or unenforceability.
Section 8.15. Entire Agreement. The Loan Documents set forth all the covenants,
promises, agreements, representations, conditions, statements and understandings between
Grantor and Beneficiary, and there are no representations, either oral or written between the
parties other than those in this Deed of Trust without limiting the foregoing, Grantor, hereby
specifically waives any claims, rights, or defenses based on any warranties, representations or
guarantees, whatever their form, made at any time, by any party, negligently made or otherwise,
except those warranties, representations or guarantees contained in the Loan Documents. This
Deed of Trust shall not be amended or modified except in a writing signed by both parties.
Failure to exercise any right in one or more instance shall not be construed as a waiver of the
right to strict performance or as an amendment to or modification of this Deed of Trust.
[END OF DOCUMENT TEXT]
1111111111111111111111 :~7~~~0~f 0:729P
SILVIA DAVIS PITKIN COUNTY CO R 85.00 0 0.00 ~
,,---- -- - - - ---- . ,~" ---------------.- - _._--~_._.. ~- - -
02-93159.02
City of Aspen, ColoradolTruscott Phase II. LLLP
Deed of Trust
15
Signed and delivered as of the date first mentioned above.
GRANTOR:
TRUSCOTT PHASE II, LLLP,
a Colorado limited liability limited partnership
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STATE OF COLORADO )
D )ss.
COUNTY OF -If i -1--1(..,,,", )
<'.A?he foregoing instrument was acknowledged .before me as of the ~ day of
~i.. ,2001, by Mo....@ 0.l2<l be..-k. as G.el\e.rr.Q ~..h\.u ofTruscott Phase II,
LLLP, a Colorado limited liabl ity limited partnership.
WITNESS my hand and official seal.
~('~k~_
Notary Pub .
My commission expires: l' 'J.~-OLj.
1111111111111111 111111 ~~~~~:0~f 0:: 29P
SILVIA DAVIS -"ITK~CDlJi'ITYCD ..........R~5~~~__1l_0.1l"--_j
02-93159.02
City of Aspen, Coloradorrruscott Phase II, LLLP
Deed of Trust
16
EXHIBIT A
Order Number: 00028632
LEGAL DESCRIPTION
Lot 3, THE ASPEN GOLF COURSE SUBDIVISION, according to the Plats thereof
recorded June 20, 1985 in Plat Book 17 at Page 34 as Reception No. 269092 and
as Amended by Plat recorded May 19, 1994 in Plat Book 34 at Page 51 as
Reception No. 370200 and Amended by Plat recorded April 29, 1998 in Plat Book
44 at Page 84 as Reception No. 416226, and Third Amended Plat of !:he Aspen Golf
Course Subdivision recorded February 23, 2001 in Plat Book 56 at Page 72 as
Reception No. 451795.
COUNTY OF PITKIN, STATE OF COLORADO
458648
Page: 17 of 17
o 0.00
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LEASE TERMINAtION AGREEMENT
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02-92667.02
City of Aspen. Colorado/Truscott Phase II, LLLP
Purchase and Sale Agreement
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AMENDMENT TO L)]:ASE AGREEMENT
DATED AUGUST 1, 1989 BY AND BETWEEN
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THE CITY OF ASPEN,:COLORADO, LESSOR,
AND
THE ASPENIPITKIN COUNTY HOUSING AUTHORITY, LESSEE
This AMENDMENT TO LEASE AGREEMENT is made as of the J:3./1. day of
S~~./Y' ,2001, by and among the City of Aspen, Colorado, a municipal corporation
("Lessor"), and the Aspen/Pitkin County Housing Authority of Pitkin County, Colorado
("Lessee").
RECITALS
WHEREAS, the City of Aspen, Colorado (",Lessor") and the Aspen/Pitkin County
Housing Authority ("Lessee") entered' into a Lease Agreement dated August 1, 1989, for
Truscott Place, Buildings 100,200 and 300, the legal description C)fwhich is Lots 2 and 3, The
Aspen Golf Course Subdivision, as shown on the Third Amended Plat thereof recorded in Plat
Book 56 at Page 74 of the records of Pitkin County, Colorado; and
. .
WHEREAS, Lessor wishes to terminate the lease as to Lot 3, Aspen Golf Course
Subdi{lj$ion (Buildings 200 and 300) so that such property may be sold to Truscott Phase II,
LLLP, for affordable housing purposes; and
300).
WHEREAS, the Lessee agrees to the termination of its lease of Lot 3 (Buildings 200 and
WITNESSETH
J . NOW, THEREFORE, in consideration for the mutual obligations contained herein,
Lessor and Lessee, each intending to be legally bound, hereby mutually covenant and agree as
follows:
, 1. Effective upon and after the date of the sale of Lot 3 (Buildings 200 and 300) to
Truscott Place II, LLLP, the Lease shall be amended, and Lessor and Lessee shall be
unequivocally and irrevocably released from all of the terms, conditions and obligations of the
j
Lease as related to Lot 3, the Aspen Golf Course Subdivision, that accrue from and after the
Effective Time as to Lot 2 (Building 100), the Lease shall remain in full force andef~ect.
.-
2. The Lessor and, Lessee state that no default exists under the Lease on the part of
any party to the Lease and that all of the obligations under the Lease have been performed.
3. The parties have the full power and authority to execute and deliver this
Agreement and no other approval, consent or acknowledgement of any other party or entity is
required in connection with this Agreement.
F:\FlIes\APCHA\Truscott Place\Amendment to Lease Agmt 091201
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4. Notwithstanding any provision ~ontained herein, the event that the transaction
referred to above is not consummated for any rdason, this Amendment shall be null and void and
i,
of no further force or effect. ,"
5. This Amendment may be executed in counterparts, and if executed in
counterparts, this Amendment shall be effective as if simultaneously executed.
6. This Amendment shall be govemed by and construed in accordance with the laws
of the State of Colorado, and shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
IN WITNESS HEREOF, the parties hereto have executed this instmment on this date and
year above first written: .
OWNER(S):
APPROVED AS TO FORM AND CONTENT:
~.n~
o orce er, City Attorney
Mailing Address: j.':J)() ~rf-.1t >& it /If A ./
STATE OF COLORADO
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COUNTY PITKIN
7fjMd~~~ ,
tary Public
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The foregoing agreement and its terms are accepted by the Aspen/Pitkin COlmty Housing
Authority.
,
, ,
ACCEPTANCE BY THEiHOUSING AUTHORITY
"
THE ASPEN/PITKIN COUNTY HOUSING AUTHORlTY
BY:~~'
~erts, Executive Director
Mailing Address:
Aspen/Pitkin County Housing Authority
530 East Main, Lower Level
Aspen, CO 81611
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
.
, ,The fo~egoing instmment was acknowledged before me this Bib day of September, 2001,
,by Mary J. Roberts, Executive Director of the Aspen!Pitkin County Housing Authority.
WITNESS MY hand and official seal.
My Commission expires:
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LEASE AGREEMENT
Dated as of August 1, 1989
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By and Between
the city of Aspen, Colorado,
as lessor
and
the Aspen/pitkin County Rousing Authority,
as lessee
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section 2.01
section 2.02
ARTICLE III
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'~t\'" 'ARTICLE
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~~'l;' .Section 4.02
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'\if" !ART:I:-cLE VI
,:. ;.~;. Section 6.01
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?J;I." ARTICLE VII
~~:sectio!1 7.01
~I . i~"': 'section 7.02
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, Section 8.01
Section 8.02
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I 8.04
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9.01
9.02
LEASE AGREEMENT
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Table ut Contents
'I,
DEFINITIONS. . . . .... . . . . ... . . . . . . . . . . , . . , . . . . .
COVENANTS OF AUTHORITY AND CITy...........
Representations, Covenants and Warranties
of the Authority...................,...,..
Representations, Covenants and Warranties
of -the city................................
DEPOSIT OF MONEYS; RENOVATION AND
EXPANSION OF EXISTING FACILITy............
Deposit of Moneys.............., ......... .
Renovation and Expansion of Existing
Facili ty:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ . . .
"LEASE TERM...... .'.......................... .
Lease of' Project.. . ."......"..................
Lease Term.......... . . . . . . .. .. .. .. .. . . . . . . .. . . . . .
Termination of Lease Term.................
Surre.nder or' Possession. . . . . . . . . . . . . . . . . : .
ENJOYMENT OF PROJECT.............................. 9
PAYMENTS BY THE AUTKORITY.................
Payment of Base Rentals and Additional
R.entals.. .. .. .. .. . .. .. ,; .. .. .. . .. .. .. .... . .. .. . . . .. . . . . . . . . . .
Base Rentals and Additional Rentals
to be Unconditional........................
Authority Project Accounts................
TITLE TO PROJECT............ ....................
Title to Project................................
Liens and Encumbrances to Title...........
MAINTENANCE; MODIFICATION; TAXES;
INSURANCE AND OTHER CHARGES...............
Maintenance of Project by Authority.......
Taxes, other Governmental Charges
and utility Charges.......~.................
Provisions Regarding Insurance............
Advanc.es. . . . . . . . . . . . . .. . . . . . . . . . .. . . . . . .. .. . . .
DAMAGE, DESTRUCTION AND CONDEMNATION;
USE. OF NET PROCEEDS........................ .'';;'.
Damage, Destruction and Condemnation......
InSUfficiency of Net Proceeds.............
~
Paqe
3
4
4
6
7
7
7
8
8
8
8
8
9
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10
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12
12
13
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14
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10.01
10.02
Xl
11. 01
11.02
XII
12.01
12.02
12.03
XIII
13.01
13.02
13.03
13.04
13.05
13.06
13.07
A
B
DISCLAIMER; USE OF PROJECT.....,..... ....
,
Disclaimer .. .... . . . , . . . . . . . . . . . . . . , . . . . . . . .
Use of proj ect" . . . . . . . . . . . . . . . . . . . . , . . . . . .
.,.1
II
ASSIGmiENT ANJd' SUBLEASING. . . . . . . . . . . . . . . . .
. t b " .
Ass~gnmen y"c~ty.,................,.....
Limitations on Assignment or Subleasing
by Authority... , . . . . . . . . . . . . . . . . . , . . . '. . . . .
EVENTS OF DEFAULT AND REMEDIES............
Events of Default Deferred................
Remedies on Default.......................
No Remedy Exclusive..................~....
MISCELLANEOUS. . . 10 . 10 10 10 10 10 10 10 10 .. 10 . . . 10 10 10 . 10 . 10 10 10 . 10
Notices. 10 10 '" 10 10 10 10 . 10 10 . . 10 10 10 . 10 . 10 10 10 10 .. . 10 . 10 . 10 . 10 10 10 10
Binding Ef"fect.. 10 .. 10 . 10 10 10 10 . .. 10 10 10 10 10 10 . 10 .. 10 . 10 10 10 10 .
Severability. 10 10 10....10.. 10 10 10. e.a 10. _.......10 10.10....
Alnendments. 10 . .. 10 . . . . . 10 10 10 . 10 . . 10 10 10 . . . 10 10 10 10 10 . 10 10 .
Execution in counterparts.................
Applicable Law 10 . . . . . . 10 10 10 . 10 10 . 10 . . . .. . 10 10 . 10 10 . . .
captions. . 10 10 . 10 10 10 .. . . 10 10 10 10 . 10 10 . . . . . 10 10 . 10 10 . . . 10 . 10
Entire Agr:eement.. 10 10 . . . .. 10 10 10 10 10 10 . . 10 10 10 10 10 10 10 . 10 .
, Further Assurances. 10 .. . . 10 . . . . . . 10 10 . . 10 10 . ." 10 10 10 ..
No Third Party Beneficiaries..............
Agreement to Establish Tenant Process.....
10 10 10 .. 10 .. 10 . 10 10 . . . 10 . . 10 10 . 10 10 . . . 10 . . . 10 10 10 . . . . . . . . . . . . . . .
DESCRIPTION OF PROJECT....................
BASE RENTAL SCHEDULE......................
14
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15
15
15
15
16
16
17
18
18
18
18
18
19
19
19
19
19
19
19
19
20
A-1
B-1
C BOND ?ROCEEDS FUND REQUISITION FORM....... C-1
D FIVE YEAR OPERATING PLAN FOR pROJECT...... 0-1
E MONTHLY BASE RENTAL SCHEDULE...........'.:...-.'... .:'E-1
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LEASE AGIiEEMENT
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This Lease Agreement (as tJii:e same may be supplemented or
amended in accordance wit;~ the tei!nns hE;!reof, this "Lease") dated
as of August I, 1989, entered into between the City of Aspen,
Colorado (the "city"), as lessor and the Aspen/Pitkin County
Housing Authority (the "Authority"), as lessee;
!.!!~!~~ETH
WHEREAS, pursuant to Ordinance No. 31 (Series of 1989)
finally adopted, passed and approved on June 26, 1989 (the "Bond
Ordinance"), and the approval provided by the electors of the
City at its general election on May 2, 1989, the City is issuing
$4,600,000 in aggregate principal amount of its General
Obligation Housing Bonds, Series 1989A (the "Bonds") in order to
provide the funds necessary for the renovation and expansion of
that property formerly known as the "Red Roof Inn" located at
22475 State Highway 82 in the city and described as Lot 2, The
Aspen Golf Course Subdivision,. as shown on the plat thereof
recorded in Plat Book /7 at Page 34jQo Pitkin County records (the
"Existing Facility") (the "Existing Facility" including the land,
and all existing buildings thereon, as so renovated and expanded,
and all adfiitions and amenities thereto the "Project"), all as
more particularly described on Exhibit A hereto, and for
reimb~rsement of 'capital expenditures previously incurred by the
city with respect thereto, together with all necessary incidental
and appurtenant costs and expenses incurred in connection
therewith; and
WHEREAS, pursuant to the Bond Ordinance and the approval
provided by the electors of the City at said May 2, 1989 general
election the city determined to deposit $1,000,000 of the
proceeds of the Bonds to the city's Land Fund to be used as
pe:r:;mittedby law and to lease the Project to the Authority for.
the purpose of the Authority acting as the city's agent for the
renovation and expansion of the Existing Facility and for the
operation and maintenance of the Project for a period from the
date hereof through December 31, 2019, with rentals due hereunder
through January 1, 2009; ana
WHEREAS, the, Authority, pursuant to .an Intergovernmental
Agreement,' as amended (the "Intergovernmental Agreement") between"
the City, Pitkin County, COlorado, the Board of Commissioners of
the Housing Authority of Aspen, Colorado and the Board of
Commissioners of the' Pitkin County Housing Authority;~ dated
January 9, 1984, Section 29-1-204.5, Colorado Revised statutes,
as amended, and title 29, article 4, parts 2 and 5, Colorado
Revised statutes, as amended, is authorized to construct,
reconstruct or repair, maintain" manage and operate housing
projects to provide dwelling accommodations at rental prices
within the means of families of low or moderate income, to
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~';;;dre or lease any real or personal property, and to enter into
......- ts w'th any person firm o,','r corporation regarding the
.~ntrac .:.. d t' f'
inagement an opera ~ons 0 housing projects; and
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'.';': 'WHEREAS, the ci ty desires 'tiP
uthority, and the Authoril-.y desi1;'~s
, tlis". Lessor, subj ect to the terms .and
,:",.. ~,i-tloses set forth in this Lease; and
l'J~r WHEREAS, pursuant to the Bond Ordinance, the City will
'}.~~~d';posit 'certain proqe?ds of the.. Bonds into a Bond prooeeds Fund
;::.\J-;:;'pintained by the' c~ty for d~sbursement upon the terms and
.\t~gcondi~ions o9n~ained in the this Lease to renovate and expand the
~<, ist~ng Fac~l~ty; and
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'j WHEREAS, both the city. and the Authority are authorized to
ter into this Lease for the purposes set forth herein;
lease the Project to the
to lease the Project from
conditions of and for the
for and in consideration of the mutual
contained, the parties hereby
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ARTICLE I
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DEFINITIONS
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following terms shall h~ve the meanings set forth in the
and recitals hereto: "
Authority
Bond Ordinance
Bonds
City
Existing Facility
Intergovernmental
Agreement
Lease
Project
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'ifl"'In addition, the following terms will have the meanings
dicated below unless the context clearly requires otherwise:
~,;,
'i' "Additional Rentals" means the cost of all (a) the cost, if
~y!;: incurred by the city for the preparation of rebate
calculations as required by the Bond Ordinance, (b) taxes,
rnsurance premiums, utility charges, maintenance, upkeep, repair,
Improvement and replacement, and (c) all other charges and costs
~ogether with all interest and penalties that may accrue thereon
"'!.the event that the Authority s;hall fail to pay the. same, as
'pacifically set forth herein) which the Authority assumes or
'qrees t~tpayor cause to be paid as Additional Rentals hereunder
ith respect to the Project. Additional Rentals do not include
. e''Base Rentals.
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.' "Base Rentals" means the payments; payable by the Authority
~~ing the Lease ~erm pursUant to Section 6.01 of this Lease and
ibit B hereto, which constitute the payments payable by the
uthority for and in consideration of the right to occupy,
'ossess and use the Project during the Lease ,Term.
;'" "Bond Proceeds, FUnd" means the "city of Aspen, Colorado,
~eneral Obligation Housing Bonds, Series 1989A Bond Proceeds
?utid" .to be 'maintained by the City pursuant to the term.s '.and.
conditions of the Bond Ordinance.
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"Event of Default" means one or more events of default as
.~efined in section 12.01 of this Lease.
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,
December 31.
means the twelve-month period ending each
"
Term" means the Term provided for in this Lease under
.'
"Lease Remedy" or "Lease Remedies" means any or all remedial..'
~steps which may be taken by the City as provided in section 12.02
,.of this Lease whenever an Event .of Default hereunder has happened
jIj'~and is continuing.
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.",,! rmance or payment bond p,roceeds, or proceeds of insurance,
thr l~ding self-insurance I recwired by this Lease, or proceeds
6m any condemnation award, ;'pr proceeds from any Lease Remedy
}!ans the amount remaining aJ~ter deducting from such proceeds
:ereof (i) all ex;)enses ,".' (incl,uding, without limitation,
ttorneys' fees and costs) incurred in the collection of such
~roceeds or award; and (ii) all other fees, expenses and payments
dUB. to the Authority or the city.
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lii/i", "Permitted Encumbrances" means as of any particular time:
('1) liens for taxes and assessments not then delinquent, or liens
,wltich may remain unpaid pending contest pursuant to the
'provisions of Article VII and Article IX of this Leasei and (ii)
this Lease.
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i~/" "Permitted Investments" means and are limited to the
!~llowing:
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, "': connection with' the
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(a) any security issued by, guaranteed by, or for
which the credit of any of the following is pledged for
payment: The United states of America, a federal form
credit bank, the federal land bank, a federal home loan
bank, the federal home loan mortgage corporation, the
faPeral national mortgage association, the export-import
b~nk, or the government national mortgage association;
or
(b) certificates of deposit issued by, and time
deposits in, state banks, national banks, or state or
federal savings and loan associations in Colorado which
is, at the time the deposit' is made, a member of the
Federal Deposit Insurance Corporation ("FDIC") or the
Federal savings and Loan Insurance Corporation ("FSLIC")
to the extent that the deposit is insured by the FDIC or
the FSLIC.
means' 'any ,," costs ...ci..nd.,eA-penses incurred in
renovation' and expansion of the Existing
H
ARTICLE II
COVENANTS OF AUTHORITY AND CITY
llj"
Section 2.01. Renresentations , ,Covenants and
Authority. The Authority represents, covenants
the benefit of the city, as follows: .
Warranties of
aIj.d warrants,
(a) The Authority is authorized to enter into this
Lease and the transactions contemplated hereby, and to
perform all of its obligations hereunder.
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(b) The Authority ha~ been duly authorized to
/':'" execute and deliver this 'Lease under the terms and
,,. provisions of a resolution..::of its Board of Directors,
and all requirements have l;;1een met, and all procedures
have occurred in or1er to :l';nsure the enforceability of
this Lease.
(c) Neither the execution and delivery of this
Lease, nor the fulfillment of or compliance with the
terms and conditions of this Lease, nor the consummation
of the transactions contemplated by this Lease conflicts
with or results in a breach of the terms, conditions and
provisions of any restriction or any agreement or
instrument to which the Authority is a party or by which
the Authority is bound, or constitutes a default under
any of the foregoing.
(d) The Authority will not assign this Lease nor
its" duties and obligations hereunder to any other'
person, firm or corporation, except that the Authority
may enter into a management contract with Aspen-Pitkin
Employee Housing, Inc. a Colorado non-profit
corporation, as approved in writing by the city fo~ the
management and operation of the proj ect and except as
may ~ provided in Article XI hereof.
~ (e) During the Lease Term, the Project will be
used by the Authority solely for the purpose of
providing dwelling accommodations at rental prices
within the means 'of families of low or moderate income
in accordance with its guidelines which may be in effect
at any time and from time to time and will not be used
in a trade or business of any person or entity other
than the Authority, except as may be provided in Article
XI hereof. The Authority will only lease individual
dwelling units directly to the persons and families
wp;ich are to be the occupants of such units and will not
lease dwelling units' to any other person, partnership,
corpora tion or other entity, except as may be provided
in Article XI hereof.
..
(f) The Authority will take no action that would
cause the interest on the Bonds to become includible in
gross income for federal income tax purposes, and will
take or cause its officers, employees and agents to
'take, all actions lawfully within its powers necessary
to cause the interest on the Bonds to remain excludible
from gross income for federal income tax purposes. .'.
(g) The 1'.uthority agrees to observe and comply
with all rules, regulations and laws applicable to the
Authority with, respect to 'renovating and expanding the
Existing Facility and operating and maintaining the
proj ect. The cost, if any, of such observance and
.
1l:J
-5-
compliance shall be borne by the
. shall not be liable therefor
;;., provision of this Lease. ::
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Authority, and the City
as a result of .any
. (h) To the knowledge OD,'. the Authority, there is no
litigation or proceeCing peniiing or' threatened against
the Authority or any other person arfecting the right of
the Authority to execute and deliver this Lease and.
related documents or certificates, or affecting the
ability of the Authority to make payments required under
the Lease or to otherwise comply with the obligations
contained herein.
(i) The Authority has provided its five-year
operating plan for the Project which is attached hereto
as Exhibit D. On or before the end of each Fiscal Year
of the Authority the Authority shall provide to the city
J' a revision of and an additional year to such five-year
!:" operating., plan and each revision and additional Y,ear
!.\1,iY"shall become a part of ExhibitD hereto. The Authority
,...O!'will also annually provide the city with such current
. "e= financial statements, budgets, Project audits and such
'. i:lVother financial information relating to the ability of
;". ~ the Authority ,to continue this Lease as may be
~sl:reasonably requested by t:he City. '
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:~ ~Section 2.02. Representations, Covenants and Warranties of
he oat. The city represents, covenants and warrants, for the
enef~t of the Authority, as follows:
c..\, ~
(,r'E (a) The City is authorized to 'enter into this'
." o"Lease and the transactions contemplated hereby and to
::~t~perform all of its obligations hereunder.
(b) The City has been duly authorized tq execute
and deliver this Lease under the provisions of the Bond
Ordinance, and all requirements have been met, and all
procedures have occurred in order to. ensure the
enforceability of this Lease.
(0) Neither the execution and delivery of this
Lease, nor the fulfillment of or compliance with the
terms and conditions of this Lease; nor the consummation
of the transactions contemplated by thip Lease conflicts
with or results in a breach of the terms, conditions and
provisions of any restriction or any' agreement or "
instrument to which the city is now a party or by which
the City is bound, or constitutes a default under any of
the foregoing. ,-
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;..' (d) ,The city will ,', not assign this Lease, its
-:,;; rights to payments from the Authority, nor its duties
,,;';.: and obligations hereunder" to any other person, firm or
t:;~' corporation unless agrEi'ed to in writing by the
,:J:' Authority. I'
. . . ~I
(e) To theknowled'ge of the City, there is no
litigation or proceeding pending or threatened against
the City or any other person affecting the right of the
city to execute or deliver this Lease or to comply with
its obligations hereunder.,'
ARTI'CLE III
DEPOSIT OF MONEYS; RENOVATION AND
EXPANSION OF EXISTING FACILITY
.f.,
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Ii;" section 3.01 Deposit of Moneys. Upon the execution and
elivery of this Lease, the City shall cause $3,600,000 to be
deposited into the Bond Proceeds Fund. Moneys deposited in the
Bond Proceeds Fund shall be disbursed by the City for the
renovation and expansion of the Existing F~cility and the costs
,at, issuing the Bonds, including interest on the Bonds during
construction as set forth in this Article. All moneys held in
. eBon~ Proceeds Fund shall be invested under the direction of
. e city.
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Facility. The Authority agrees to cause the Existing Facility to
be renovated and expanded as described in Exhibit A hereto and in
.!ic.cordance with the plans and specifications therefor delivered
~othe City prior to the date hereof and to enter into contracts,
and to provide for, or cause to be provided for, the renovation
'and expansion of the Existing Facili~y. The Authority agrees
,that it will cause the renovation and expansion of the Existing
:Facility to: be diligently perfol:llled 'after the deposit of funds
"into.. ,the'Bond'- Proceeds' Fund and will use.. its '_best efforts to
cause the renovation and expansion of the Existing Facility to be
t'completed by January 1, 1990, or as soon thereafter as
',-,practicable. If for any reason the renovation and expansion of
: J'the Existing Facility iff not completed by said date, there shall
~:. ",be no resulting liability on the part of the Authority or an
'~;Event of Default hereunder, provided that there shall not be, on
~iiaccount of such failure to timely complete the renovation aj)d
,~rexpansion of the Existing Facility, any diminution or
I' '~postponement of the Base Rentals and Additional R,e nta+s required
:. ,"; to be paid by the Authority during the Lease Term..~ '
;~ ~.:
~r The execution and delivery by the Authority of a Bon'd
~~>Proceeds Fund Requisition Form, in form as provided in Exhibit C
T~;'hereto shall be required to authorize any payments made from the
'I.~~ Bond Proceeds FU~d by the City, except for,the costs of.issua~ce
T J:' of the Bonds or l.nterest on the Bonds durl.ng constructl.on whl.ch
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3.02.
Renovation
and
Expansion
of
Existinq
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:,;C, be paid directly by the ci t;r from the Bond Proceeds Fund. In
daition there sha~l be attac~ed t~ the ~ond Proceeds Fund
]te.quisition Form ev~dence of ~~en wa~vers w~th respect to all
vork done on the Project to thei;: date of such requisition,
ffj',:. Any substantial, chan<i\:s, ,al teration, modification,
jili,stitution or replacement of the plans and specifications for
th'e"'renovation and expansion of the Existing Facility after the
, dAte hereof shall be approved in writing by the city. Any
';;''''~'increase in the project Costs whether or not resulting from such
_!i~E]if'a" change shall, to ,the extent the increased proj ect Costs exceed
'.l\fr.~j).t1ie total balance ~n the Bond Proceeds Fund, be payable solely
.,.. .. ~'trom other funds of the Authority.
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ti';, All moneys resulting from the investment of moneys in the
a-;)'nd Proceeds Fund except for moneys which the City may be
required to deposit to the Rebate Fund as defined under the Bond
'Ordinance shall be retained by the City in the Bond Proceeds Fund
'and" applied to proj ectCosts. '
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ARTICLE IV
LEASE TERM
Seq..Hon 4.01. Lease ,of Proj ect. The city hereby demises
Authority, and the Authority leases from the
the Project, in accordance with the provisions of this
to have and to hold for the Lease Term.
t, Section 4.02. LeaSe Term. The Term of this Lease shall
commence as of the date of execution and delivery of this Lease
;and shall terminate December 31, 2019.
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,~~~": Section 4.03. Termination of Lease Term. The Lease Term
shall terminate upon the earliest of any of the following events:
.It. t.~~
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';:7.' (a) December 31, 2019; or
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'~S~: Section 4.04. Surrender or Possession. The Authority shall
~;;surrender possession of the Project to the city upon termination
fJl~:of the Lease Term.
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(1:>) an Event of Default
city's election to terminate
XII hereof. ~
by the Authority and the
this Lease under Article
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ART,ICLE V
ENJOYMENT OF PROJECT
,,' The city hereby covenant$ to provide the Authority during
"'e Lease Term with qu.',et use'l,and enjoyment of the Project, and
, e Authority shall during the Lease Term peaceably and quietly
.. va and hold and enj oy the proj ect.
have the right at all reasonable times during
enter into and upon the property of the
for the purpose of inspecting the Project. The
shall use its best efforts to provide to the City
the Project.
ARTICLE VI
PAYMENTS BY THE AUTHORITY
ifi, section 6.01. Payment of Base Rentals and Additional
'Rentals. The Authority shall pay Base Rentals, in lawful money
'of the United states of America, directly to the City at: Office
'of city Finance Director, ,Aspen; Colorado. The city understands
that Base Rentals are payable exclusively from moneys received by
the Autliority from the operation of the Project and any other
tag-ally' available funds of the Authority, if any. Base Rentals
sl1'all be paid in the amounts and on the dates set forth in
~ibit B hereto.
~> The Authority shall pay Additional Rentals during the Lease
~arm as herein provided.
~'.
.." Section 6.02. Base Rentals and Additional Rentals to be
Unconditional. The obligation of the Authority to make payment
of the Base Rentals and Additional Rentals required under this
'Article VI and othe~ sections hereof, and to perform and observe
,the ,covenants and agreements contained ,here~n, shall,be absolute
t,: and unconditional in all 'events, except as expressly provided
[under this Lease. Notwithstanding any dispute between the
:'Authority and any other person, the Authority shall make all
,payments of Base Rentals and Additional Rentals when due and
.shall not withhold any Base Rentals and Additional Rentals
W:pending final resolution of such dispute (except as provided in
~,~Section 8.02 hereof), nor shall the Authority assert any right,~
~ set-off 'or counterclaim against its obligation to make sti'/::h
;I~::,payments required under this Lease. Any installment of Base
~ ~;,Rentals or Additional Rentals accruing hereunder which shall not
t ~;be paid when due shall bear interest at the ;rate of ten percer;t
;; ~ (10%) per annum, or such lesser rate of ~nterest as may De
~ rec;[';1ired by law, from the, date when the same is due hereunder
-~unt~l the same shall be pa~d. ..
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, section 6.03. Authority proi ect Accoun'_. The Authority
~''"es to create and admin.l,$ter the following accounts for the
· ct into which all re:-;enues or other moneys held by the
6rity relating to the P~~ject shall be deposited:
(a) Proje~t opet~ting, Account from which
Authority shall pay 'the expenses of operating
maintaining the Project;
the
and
(b) Project Base Rentals Account into which the
Authority shall deposit monthly the portion of Base
Rentals next due to the city hereunder in amounts at
least equal to the monthly Base Rentals set forth on
Exhibit E hereto; ,
(c) Project BG3e Rentals Reserve Account into
which the Authority shall deposit the sum of $350,000
not later than September I, 1989, which amount shall,be
maintained therein until January 2, 2009, and which may
only be used by' the Authority to provide for any
deficiency in the payment of Base Rentals to the City
pursuant to Section 6.01 hereof; and
(d) Project Repair and Replacement Account to
it:' which the Authority shall deposit Project moneys froIn
,Pd '"time to time and from which the Authority shall pay the
' , "cost of unusual or extraordinary maintenance or repairs
'"of the Project, renewals and replacements for the
'Q~ 'Project, and the renovating or replacement of fixtures
'tl:. and equipment in respect of the proj ect not paid as part
':~ of the ordinary and normal expense of the proj ect
.. operations.
I, 2009, and unless the City shall otherwise
(a) the'Authority shall not use or deposit moneys
'or revenues of the proj ect for, any purpose or to any,
account other than for the purposes or to the accounts
described herein;
(b)
deposited
Permitted
the Authority shall invest all moneys
to the Authority J s proj ect Accounts only in
Investments; and ..
(c) the Authority shall engage an
certified pUblic accounting firm to provide
on a monthly bas.is the following:
.
jj
independent
to :l;he City,
.~
(1) a monthly statement of accounts for the"
Project;
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(2) a statement :that the project Base R~ntals
Account of the Authority contains the amount
required by the city };o be accumulated therein for
the subject month in i ,accordance with paragraph (b)
of this secti~n and Exhibit E hereto; and
"
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'"i~i'" (d) in the event of any deficiency in any month in
~!.:, > the amount!? to be accumulated in the proj ect Base
1li;,~\::". Rentals Account, the Authority shall i:mmediately
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'ii~L ,transfer, f~rst, from the proj ect Base Rentals Reserve
..~ 'Account, and second, to the extent necessary, from the
,l;~;; project Repair and Replacement Account, to the Project
":-:. Base Rentals Account, the amount necessary to provide
'-" for such deficiency.
(3) a statement that all moneys
the 1>.uthori ty' s proj ect accounts are
Permitted Investments.
deposited to
invested in
ARTICLE V:I:I
TITLE TO PROJECT
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. 'tit,~ SeCl:'tion 7.01. Title to the proiect. During the Lease Term
and at the end of the Lease Term, title to the Project shall at
'11:.:times remain and vest in the city, subject to the rights of
e':Authority hereunder. In the event of the occurrence of an
Event of Default as set forth in Article XII hereof, the
Authority will reasonably surrender possession of the Project.
,"
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," ,;:., Section 7.02. Liens and Encumbrances to Ti tle. The
'Authority shall not permit any mechanic's or other lien to be
'established or remain against the Project; provided that if the
Authority shall first notify the city of the intention of the
,Authority so to do, the Authority may in good faith contest any
'mechanic I s ,'lien or other lien filed or asserted against the
,Project, and in such event may permit the items so contested to
~x:emain undischarged and unsatisfied during the period of such
':contest and any appeal therefrom unless the city shall notify the
:Authority that, in the opinion of the City Attorney, by
'~onpayment of any such items the city's title to the Project will
,be materially endangered, or the Project or any part thereof will
, ,be subject 'to loss or forfeiture, in which event the Authority
tlll,Shall promptly pay and cause to be satisfied and discharged ~fl
~'~UCh ~npaid item~ (provided, ho~ever, that ~uch payment shall not
f.~;:,const~tute a wa~ver of the r~ght to cont~nue to contest such
'~:'items). The city will cooperate fully with the Autho~ity in any
~ ::such contest, upon the request and at the expense of the
~~Authority. ~either the City nor, except as provided above, the
,E~;Authority, shall directly or indirectly create, incur, assume or
:~~:, suffer to exist any mortgage;' pledge, lien; charge, encumbrance
.' or claim on or with respect to the Project, except Permitted
~:'EnCUmbrances. The Authority or the city, as the case may be,
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expense, take such action as may be
ahy such mortgage, pledge, lien,
not excepted above which it shall
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:;'>6 "lHAINTENAllCE ; MODIFICATION; TAXES; INSURANCE AllD OTHER CHARGES
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)i~~t~,~~r section 8.01. Maintenance of Pro; ect by 'Authority. The
':~~~;Authority agrees that at all tiI?es during the Lease Term the
';," 'Authority will, at the Author~ty.Js o,:",n cost an~ expen:e,
/ lPintain, preserve and keep the Pro) ect ~n goodrepa~r, workJ.ng
order and condition, and that the Authority will from time to
t~e make or cause to be made all necessary and proper repairs,
replacements and renewals. The city shall have n9 responsibility
in' any of these matters, or for the making of improvements or
dditions to the project. ,
"
ARTICLE VIII
section 8.02. Taxes, Other Governmental Charqes and utility
Charqes. The city and the Authority contemplate that the Project
will be used' for a governmental or proprietary purpose of the
city and the Authority and, therefore, that the Project will be
'exempt;trom all taxes presently assessed and levied with respect
:Co' real property. In the event that the use, possession,
.. "novation or expansion of the proj ect is found to be subject to
axation in any form, the Authority will pay as Additional
Rentals during the Lease Term, as the same respectively come due,
lill' taxes and governmental charges of any kind whatsoever that
may at any time be lawfully assessed or levied against or with
respect to the project and any equipment or other property
acquired by the Authority in substitution' for, 'as a renewal or
replacement of, or a modification, improvement or addition to the
Project, as well as all power, telephone, utility and other
c,Aarges incurred in the operation, lI)aintenance, use, and, upkeep
:Of"t.heProject; pJ:'ovided, .t,hat, ,with respect to any 'governmental
'charges that may ,lawfully be, paid iri installments' over a period
; of. years, the Authority shall be obligated to pay only such
,in~tallments as have accrued during the Lease Term.
~ .t~. (:-~
_ - ~i;l?," The Authority may, at its expense, in good faith contest any
~",.',~:;such ,taxes, as!;essments, utility and other charges and, in the
.. event of any such contest, may permit the taxes, assessments,
utility or other charges so contested to remain unpaid during ~ne
period of such contest and any appeal therefrom unless the city
,:shall notify the Authority that, in the opinion of the City
:.Attorney, by nonpayment of any such items the tiv,le will be
;:materially endangered or the Project or any portion thereof will
}be subject to loss or forfeiture, or the City will be subject to
~'liabili ty, ,in which event such taxes, assesSments, utili ty or
~; other charges shall be paid 'forthwith (provided, however, that
-12-
"
not constitute
such ta*es, "
,
"
a waiver
'sessments,
of the
utili ty
right to
or other
I,
,
section 8.03 p~'ovision'S Reqardinq Insurance. At its oym
, ense the Authority shall 'cause the following insurance to be
arrien and maintained:
;.....~'t'
.."," :;' (a) casual ty and property damage insurance
,:,rc:&;" su~~icient to protect the full replacement valu,e of the
'i).iit.;, Pro] ect; and
"ii')(t.. I .
:'~I'/tS'" (b) comprehens~ve. general pUb,lic liability
'~i1(: insurance aga~nst all d~rect or cont~ngent loss or
l~';,t' liability for property damage, personal, injury or death
~~,occasioned by reasons of the operat~on, control or
(d.i.~'construct,io.n up~m .th;e Project premises, with a maximum
.1,.',,; single l~m~t l~ab~l~ty of not less than $500,000 for
";,1'. personal injury or death arising from a single accident
:~17:" ..or event and $500,000 for, a single occurrence of
"f.,;, . property damage; and
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(c) workmen's compensation
statutory benefits under the
',:~.. qolorado.
lnst..~~
~l'insurance proceeds from casualty losses shall be payable as
Iiareinafter provided in this Lease. The Authority shall furnish
t'o~,the City certificates evidencing all such insurance coverage
throughout the Lease Term.
,be.:.
.:i'l;:':,' Any insurance policy pursuant to this Section 8.03 shall be
:so'written or endorsed as to make losses, if any, payable to the
;Authority and the City as their respective interests may appear.
~~e Net Proceeds of the insurance required in this Section 8.03
. shall be applied,' as provided in Article IX hereof. Each
',insUrance policy provided, for in this Section 8.03 shall contain
,a' provision to the effect that the insurance company shall not
'cancel the policy or modify it materially and adversely to the
,:'interest of the city without first giving written notice thereof
,to the City at least thirty (30) days in advance of such
,:c~ncellation or modification.
.~"
i.:i:;', Section 8.04. Advances. In the event the full insura,,nce
,', coverage required by this Lease is not maintained as provided" in
Section 8.03 hereof, or the Project is not kept in good repair,
"and operating condition, or the Authority fails to pay Additional
:,Rentals as they become due, the City may (but shall....be under no
i obligation to) purchase the required policies of insurance and
:, pay the premiums necessary and provide for payment thereof or pay
., such Additional Rentals; and ,all amounts so advanced therefor by
'.r the city, if any, sha~l become Addi tional R~nta~s for the then
::current Lease Term, wh~ch amounts, together w~th ~nterest thereon
C at the rate of ten (10%) per annum, the Authority agrees to pay.
insurance affording the
laws of the State of
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ARTIctE IX
'.1;.:. .
b.. ~
~~section 9.01. Damage, Destruction and Condemnation. If
. rior to the termination of the Lease Term (a) the.Project or any
~rtion thereof is destroyed (in whole or in part) or is damaged
~y fire or other casualty or (b) title to, or the temporary use
'ot., t1;-e project ,or :"ny part. thereof or the' estate of the
Author~ty or the c~ty ~n the ProJect or any p~rt thereo~ shall be
taken under the exerc~se of the power of em~nent doma~n by any
governmental body or by any person, firm or corporation acting
'under governmental authority, the Authority and the city will
'Ause the Net Proceeds of any insurance claim or condemnation
ward 'to be ,applied to the prompt repair, restoration,
modification, replacement or improvement of the proj ect. Any
S'alance of the Net Proceeds remaining' after such work has been
completed shall be paid to the Authority. Notwithstanding the
foregoing, the cIty and the. Authority may agree to other
a :plication of such Net proceeds, including the application of
such Net Proceeds to the prepayment of Base Rentals. '
'\Z,:::(i. .
"ha,: section 9.02. Insufficiency of Net Proceeds. If the Net
,-6ceeds ~re insufficient to pay in full the cost of any repair,
restoration, modification or improvement, referred to in section
~!:0J:'" hereof, the Authority shall complete the work and pay any
cost ~n excess of the amount of the Net Proceeds, in which case
, e Authority shall not be entitled to any reimbursement therefor
from the city nor shall the Authority be entitled to any
illlinution of the Base Rentals and, Additional Rentals payable
~der Article, VI hereof. Notwithstanding the foregoing, the City
and the Authority may agree to other application of such Net
'"Proceeds, including the application of such Net Proceeds to the
prepayment of Base Rentals. '
~'II
DAMAGE, DESTRUCTION: ~~D CONDEMNATION;
USE OF NEi PROCEEDS
ARTICLE X
DISCLAIMER; USE OF THE PROJECT
,'.
Section 10.01, Disclaimer. THE CITY MAKES NO WARRANTY OR
''!'W; ,"i'.REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE,
'~ (;J~ DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR.
',~ ~'PORPOSE OR FITNESS FOR INTENDED USE OF THE PROJECT, OR ANY OTHER'
'REPRESENTATION OR WARRANTY WITH RESPECT THERETO. THE AUTHORITY
:HEREBY ACKNOWLEDGES AND DECLARES THAT THE CITY DOES NOT HAVE ANY'
.RESPONSIBILITY FOR THE VALUE, DESIGN, CONDITION, MERCHJ(NTABILITY'
'<'OR FITNESS FOR PARTICULAR PURPOSE OR FITN;::SS FOR INTENDED USE OF,,'
,THE PROJECT OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT
: TO THE PROJECT. In no event shall the city be liable for any
,', incidental, indirect, special or consequential damage in
,; connection with or arising out of this Lease or the existence,
:,' furnishing, functioning or the Authority J s use of the proj ect.
-14-
)~y: section 10.02. Use of the Pr'oi ect. The Authority shall not
,"W~' or maintain the Project or cause the Project to be operated,
li;roperlY, carelessly, in violation of any applicable law or in
"~.lllanner contrary to that contemplated by this Lease, The
a.'~thorit:y shall provide all pe,rmits, and licenses, if any,
nicessary for the renovation a~d expansion of the Existing
aoili ty.
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~~' section 11.01. Assiqnment by City. The city's rights under
,this Lease, including its rights to receive Base Rentals, may be
'assigned by the city, subsequent to the execution of this Lease, '
;provided that in connection with such assignment, the City shall
have obtained the prior written consent of the Authority thereto.
5' section 11. 02., Limitations On Assiqnment or S',bleasinq by
iuthority. This Lease and the Authority's d~ties and obligations
hereunder may not be assigned by the Authority for any reason
except as provided in Section 2.01 (d) hereof unless tl:).e city
:hall have provided written agreement to such assignment.
'owever, tpe Project and any part thereof may be subleased by the
'uthority, as a whole or in part, without the necessity of
btahling the consent of the ci ty, subj ect to the following
'ondi tlons:
ARTICLE ,XI
ASSIGNMENT AND SUBLEASING
(a) The residential units or dwelling
accommodations within the Project'shall be leased by the
Authority as provided in section 2.01(e) hereof.
(b)
. subleases
-;.:" ,,'hereof:
,In
of
the case of any sublease other than
the proj ect described in paragraph (a)
~ . ......
," . ", ..
(1), The Project may be' subleased by the
Authority in whole or in part, only to an agency or
department or political subdivision of the State of
Colorado" or to "another entity or entities if, in
the opinion of nationally recognized bond counsel
acceptable to the ci ty, such sublease will not
impair the exclusion from gross income of the
interest portion of Base Rentals for the purposes
of federal income taxation;
~
(2) This Lease, and the obligations of" the
Authority hereunder, shall, at all times during the
Leas e Term I rema in obl iga tions of, the Authority,
and the Authority Shall maintain its direct
relationship with the city notwithstanding any
sublease;
-15-
Section' 12.01. Events of Default Defined. The following'
. ,shall be "Events of Default" under this Lease and the terms
"event of default" and "default" shall mean, whenever they are
used in ,this Lease, any one or more of the following events:
(a) Failure by the .Authority to pay any Base
Rentals or Additional Rentals or other payment required
to be paid hereunder at the time specified herein; and
(b) Failure by the Authority to observe 'and
perfotm any covenant, condition or agreement on its part
to be observed or performed, other than the payment
"'covenant as referred to in Section 12.01 (a), for a
period of thirty (30) days after written notice,
specifying such failure and requesting that it be
remedied as given to the Authority by the city, unless
the city shall agree in writing ,to an extension of such
time prior to its expiration; provided, however, if the
failure stated in the notice cannot be corrected within
the applicable period, the city will not unreasonably
withhold its consent to an extension of such tilDe if
corrective action is instituted by the Authority within
, . the applicable period and diligently pursued until the
default is corrected; and
(c) If (i) the Authority's interest in this Lease
or any part thereof ~e assigned or transferred without
the written consent of the city, except as provided
herein, either voluntarily or by operation of law or
otherwise, or (ii) any proceeding under the United
States Bankruptcy Code or any federal or state
bankruptcy, insolvency, or similar law or any law
providing for the appointment of a receiver, liquid,ator I
trustee or. similar official of the Authority or of;. all
or substantially all of its assets, is instituted by or
with the consent of khe Authority, or, is instituted
without its' consent and is not permanently stayed or
dismissed 'within sixty (60') days,' or if the Authority
offers to the Authority's creditors to effect a
con~osition or extension of time to pay the Authority's
~~fj}.:'. .
,;~~i~~'; ,',
,,\~till1l~'"
,.',;:~,,'C.~'':~;.t.~ .'
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:~~::.
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",
(3) The Authority" shall furnish a copy of
such sublease to the city; and
"
:,10
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
'"
-16-
'j,
debts or asks, seeks or prays for a reorganization or to
effect a plan of reorganization, or for a readjustment
of the Authority's debts, ot if the Authority shall make
..:', a general or any assignme:nt for the benefit of the
.7':.Authority's creditc.r.s, or;, (iii) the Authority shall
'~;abandon or vacate any part of the Project (except
.'" pursuant to Article IX hereof) .
9";-
J.. . .
,:' ,.P_,c.. section 12.02. Remedies on Default. Whenever any Event of
:i:I~~'!'~'~i~;"'lt shall have ,happened an~ be, continuing, the city shall
'Jf!i"l'(i':n::.ve..the right, at~ts sole opt~on ;oathout any furth'7r demand, or
".(i''''~!''otice, to take one or any comb~nat~on of the follow~ng remed~al
'.' ~eps with or without termination of this Lease:
,', ." '(a) without terminating this Lease, the city may
"!,:~collect each installment of Base Rentals and Additional
.i;,;::J<entals as thay become due and enforce any other term or
";',, ': provision hereof to be kept or performed by the
~~'" Authority and/or may. exercise any and all ri~hts of the
i;)n![,city to ,take possess~on of, and relet the ProJect or any
~v : part thereof;
1'-
lCP" "
!\ ' (b) by written notice to the Authority, request
~'" the Authority to promptly surrender possession of' the
):F', Proj~ct to the city, and permit the city or any party
" designated by the city quiet enjoyment and use of the
':' '~ proj ect ;
." "
,.~. '
(c) take immediate possession of the Project;
(d) sell, lease or sublease the Project; and
(e) Exercise any other right, ~emedy or privilege
which may be available to it under applicable laws of
the state' of colorado or any other applicable law, or
'proceed ,by appropriate court action to enforce the terms
of this Lease, or, ,to recover damages for the breach 'of
this Lease or to rescind this Lease as"to any portion'o'f
or all of the Projact. '
All moneys received-by the city as a result of the exercise
its remedies hereunder shall be applied as follows:
FIRST: to the payment of the legal costs and
expenses incurred by the city in pursuing any and all ~
remedies of the city hereunder; and
SECOND: 'to the payment of the costs and expenses
attributable to the sale, leasing or other disposition
of the project or any part thereof; and
THIRD:
Rentals.
to the paYment of ,any then due Base
-17-
I
k~'.':
~:;(... .
lith
'Wi' FOURTH: to thepaymenti;Jf any then due Additional
~t ' Rentals. ,
~~. ;1
0........
~n~ In addition, ,the Authority I, will remain ~iable, for all
,;." ,~enants under, th~s Leas~ and }or e~penses, ~nclud~ng court
,';., ""o'sts when and ~f deemedappropr~ate and awarded by a court of
~~\~~mpetent jurisdiction, incurred ~y th~ city with respect to the
::;f~i~,,~".hforcement of any of t1;e remed~e,s ~~st,:,d above, or, any other
.~:~~,r'emedy available, to ,the; c~ty" when ~t ~s hnally, adJ~d~,?atedby a
'~~~'court of competent Jur~sd~ct~on that the Author~ty ~s ~n default
::~'~f,'I>hareunder. '
;t~ffi~{;:;.()>~ .." .
~;~:,:~~":,e.~, Sect~on '~2.03. No Remedy 'Exclusive. No remedy herein
,,~n~i~onferred upon or reserved to the City is ,intended to be
r;,,' ').'exclusive and every such remedy shall be cumulat~ve and shall be
In''\'''/iddition to every other remedy given under this Lease or now
o'r"hereafter existing at law or in equity. No delay or omission
't:o"':::'exercise any right or power accruing upon any default
'ereunder shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power
~iibe exercised from time to time and as often as may be deemed
expedient. '
.:;,..!...
lii:,C:
~"ut~..
lUl._,~'" .
.'cn:;:' .
, .
'6']);:' .7"
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\/',~'., section ~3. 01. Notices.
communications hereunder sha~l
'deemed given when delivered or
p~epaid, addressed as follows:
'~~U4..
!i
ARTICLE XIII
MISCELLANEOUS
All notices, certificates or other
be sufficiently given and sha~l be
mailed by registered mail, postage
'" ....
.,~~~~~.I l .
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~ ~.I.~.",:.
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~... - .. Section 13.02. Bindinq Effect. This Lease shall inure to
,1ii{ii:'the benefit of and shall be binding upon the city 'and the
,,~~~thority and their respective successors and assigns. ."
'~~\'t:.., ,Section 13.03. Severability. In the event any provision of
~~'{this Lease shall be held invalid or unenforceable by any court of
~..,.:" . . ", I
:...I~,COlnpetent Jurlsd~ct~on, such holding shall not invalidate or
:ij,;~~ender unenforceable any other provision hereof.
~~~;~. . .
..-,
h '..
If to the Authority:
Aspen/Pitkin County Housing Authority
"130 Sputh' Galena
'. 'Aspen, Colorado 8~611
Attention: Executive Director
,
If to the city:
city of Aspen, Co1orado
130 South Galena
Aspen, Colorado
Attention: city
81611
Manager
. '
-18-
)1.... ~;-.;;.~
...~..;'~...:l,.l..
},i~;!, ' "
,;f(I"l",t:,., sectlon 13.04, Amendments. The terms of this Lease shall
',~'~I~t:be waived, altered, modifi~d, ~upplemented ~r amended in ~ny
::!f.\'~t;:~nner whatsoe,;er except by wrltterl lnstrument slgned by the Clty
:,~r.~and the Authonty. !,'
::~i!f~: " section 13 ,05. Execution in ;" count'erparts. This Lease may
:*::;jiP;;;:' ~xecuted in several counterparts, each of which shall be an
r~~original and all of which shall constitute but one and the same
,p:; instrument
..~. :;\~. .
.:.," ~~~{.~~::,:'j.{.. .' .
.. ',~i:!tii', Sectlon 13.06. Applicable Law, This Lease shall be
"":~,}~'q:'overned by and construed in accordance with the laws of the
~~..j.;((~
l;t~Xtstate of Colorado.
;'t)~j!~iC~'...
~t'll,r;!.'f,i,,;',: section 13.07. ,captions. The captions or ,headings in ~his
'{:~:'j:Lease are for cO,nvenlence o~ referer;ce only and 1n no wa,y ,def1ne,
::;~llli]D.it or descrlbe the scope or lntent of any prov1slons or
:'!'0~~:f sctions of this Lease.
"\\l'Al',,,,,,,,,,, ,
. Rl~~~Y,I,,"" .
,\;':ii~t:: Sec,tion 13.08. Entire Aqreeme~t. This Lease co~stitutes
t~;i'4(~{the ent1re agreement between the C1ty and the Author1ty. No
.';il~tl1waiver, consent, modification or change of terms of this Lease
,~~~'shall bind either party unless, in writing signed by both P?rties,
':;.1'iif~~rand then such waiver, consent, modification or change shall be
':'i''*:effective only in the specific instance and for the specific
:'~tli)iilrpO!le given. There, are no unders~and~ngs, agreeln~m~s,
'(:;~lr(l'l,r.,epre'S\1mtations or warrant1es, express or 1mpl1ed, not speclfled
'i~~pereinregarding this Lease or the Project leased hereunder. Any
:''1' ,,\}terIlls and conditions of any purchase order or other document
: :il~~:(With the exception of amendments or supplements as provided in
'''~(l;~~section 13.04 hereof) submitted by the Authority or the city in
",;i,l,~:'connection with this Lease which are in addition to or
'1~~?incon~istent with the terms and conditions of this Lease will not
;*ifb~:binding on the city in the case of an Authority submission or
,i~~1t;j., the 'litho, rity in the case of a city su,bmission and will not "apply
, w' t "th' L
':;: d;i, 0 ,lS ,: ease. , '
...~.' {~'x~~,. . . -
:;,'~j:.;",;' section 13.09. Further Assurances. The Authority and' the'
''i@'.$'City further agree to execute and deliver such additional
'~~!documents and agreements as necessary to carry out the intent of
,~!;;;!~this Lease. .
,~~c>:'
~~S;;:" section 13.10. No Third Party Beneficiaries. This Lease is
i~F not intended to create any right in or for the public, or any
:;5ik mewer of the public, including any owner of the Bonds any ~ '
~~Y:subcontractor, supplier or any other third party, :or to authorize
~~S'anyone not a party to this Lease to maintain a suit to enforce or
''mftake advantage of its terms. The duties, obligatrons and
~$: re~ponsibilitiesof the, parti:as to this Lease with respect to
~1f'\f. thud parties shall rema1n as 1mposed by law.
.;.;\~~.
~h~ ~
'~~~ section 13.11. Aqreement to Establish Tenant Process. The
li':" City and the Authority agree to ':lork together to establis? a
J~E"process or procedure pursuant to Wh1Ch the tenants of the ProJect
,;~r;}..;.',
:;;"<"
:;~T,
~',: -19-
,,,~,,,
~O\l'(~' .
.'.:~~J;:':
. ',~i;<'O<."'" .
"
llJ{ii have an opportunity to corti1rteht upon, express concerns or
i" ievances in regard to, and reqUest the formation of a tenants I
~uncil respecting, the operation and maintenance of the Project,
" l
1~, IN WITNESS WHEREOF, the Ciby has executed this Lease in its
''''8 with its seal hereunder a'ffixed' and attested by its duly
Authorized officers, and the Authority has caused this Lease to
.'be executed in its name with its seal hereunto affixed and
attested by, its duly au.thorize,d officers. All of the above
occurred as of the date f~rst wr~tten above.
'I"
{SEAL}
CITY OF ASPEN, COLORADO,
as Lessor
By:
Titl
TTEST:
,., I' I
W, .' '
,1~~~4~
H't!'O!,:\ City erk ,'~
.~.~. .
'I" ... , ,i
;Kil'~, ",
SEAL}
n-.~: (,,;.
iiC\..: >'
ASPEN/PITKIN COUNTY HOUSING
AUTHORITY, as Lessee
", .,-r~
i9'~,..
:A~EST:
0'...,
.... ~
'B-.A:..R~ I 0'~"~
,~itle: Seer ary'
By:
Titl
l.&
Boar of
-
.
~
.~
-20-
EXHIBIT A
(DESCRIPTI6N OF PROJECT)
,
"
~~, The project inclu~~s and
~'Pitkin county, Colorado:
~-.
....
,I"
j:
.!'
lis
loc~ted on the following parcel
I~.. "~..~..,.,,::::
.. . .... ,,~":"''','I- ',",'
,',;~;;"'l
'~.ir:J~\It'".~.:.,.
';;ii;"'~ ~'.f!,;;",
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i
I
,
,
Lot 2, The Aspen Golf Course Subdivision,
on the plat thereof recorded in Plat Book 7 at
pitkin County records.
as shown
Page 34,
TRUSTCOTT PLACE DESCRIPTION
:..f.. Truscott Place is a combined permanent and seasonal employee
l10using complex administered by the Aspen/Pitkin County Housing
':Authori ty.
...,;,.'
'i'3;! Seasonal employees and ,music students wIll be housed in the
existingt structure. This existing facility contains 50 studio
"type rooms. Rehabilitation of the seasonal housing facility'will
inelude complete re-roofing, replacement of heating and hot water
Byscero, redesign and installation of laundry facilities, painting
exterior siding and upgrading unit interiors as needed.
The new permanent employee housing will consist of two near
lllirror image buildings, each with 23 one or two-bedroom units
,(see list below). The total of 46 units and 34,271 livable
square feet are modular construction. The modular units will be
double 2x4 walls with 1-1/2" spacing,2x10 @ 16" O.C. floors, 2x6
t@ '16".. a.c. ceilings and 1/2" exterior woOd siding. The modular'
:construction_ will include, all interior finishes, fixtures and
:appliances. The new complex will incorporate 2016 square feet of
<mechanical and storage space into the basement of the structures.
::j;. ,,;'{'
.j' '.r:~::Tl'>e Project is desd.gned' to be energy and cost efficient.
. The site plan provides for berming and planting along the 9th
:fairway to help screen the Project from the golf course. In,
addition to the existing tennis courts, open areas includil}}1
',playground and basketball and volleyball'courts are provided.
':,Covered bike storage will be provided in the existing tennis,
,barn. As an autO-disincentive, a lITTA mini-"bus will J:?,e provided
',and scheduled specifically for the employees.
A-I
one
One
, Two
~ti,\:'L!~' .~ Two
. "'ri>1:~l,",
~~:" ,;.~'.jj':._~U Two
.ll~~~':'.i':'''' Two
',....,')1.., J
g~~i~~~f:~,~.~,:~, .
F),jlj~i::;:~;,. Mechan~cal/Storage
~~h.'"ip'..., TOT A L
'~..".'.."~~~~~:
'~a.':";~.. .
-"II"""~~"
''1':: ..' ,,';~"'!'~''''
I, .~, 'i:.~.. ;_ " .
~. . ""::;. ~r' .
:C ,~~/t...,~-'.
';'-~$:t6:1)':,
;-::'~~~7 :
""~"""'~"':"I"
::~;~n7.!;
.... ..'.
,., .
Bedroom
Bedroom
Bedroom
Bedroom
Bedroom
Bedroom
1.t
Flats
(Loft)
ilL"
Long
"L" (Loft)
Long (Loft)
No. Of Total
Units S, F. S.F,
,
:'
8 !' 502 4016
4 J1 !i56 2224
13' 698 9074
2 694 1388
17 931 15827
2 871 1742
34271
2016
36287
,
A-2
j
.~
;i
1, 1990
1990
1, 1991
1991
1, 1992
1992
1, 1993
1993
1, 1994
1994
1,1995
1995
1, 1996
1996
1, 1997
1997 '
1, 1998
1998
1, 1999
1999
E~HIBIT B
(SCHEDULE;:' OF BASE RENTALS)
~! <
'II
Base Rental
Mount
$133,542.19*
161,245.00
281,245.00
157,405.00
287,405.00
153,212.50
288,212.50
148,825.00
293,825.00
144,076.25
304,076.25
i38,796.25
308,796.25
133,143.75
313,1'43,75
127,113.75
322,113.75
120,532.50
330,532.50
113,392.50
Payment Date
(7 days prior to)
January 1, 2000
July 1, 2000
January 1, 2001
July 1, 2001
January 2, 2002
July 1, 2002
January 1, 2003
July 1, 2003
January 1, 2004
July 1, 2004
January 1, 2005
July 1, 2005
January 1, 2006
July 1, 2006
January 1, 2007
July 1, 2007
January 1, 2008
July 1, 2008
January 1, ;2009
Base Rental
Mount
$338,392.50
105,630,50
345,630.50
97,230.00
352,230,00
88,050.00
363,050.00
78,150.00
373,150.00
67,530.00
387,530.00
56,010.00
401,010.00
43,590.00
413,590.00
,30,270.00,
430,272.00
15,870.00
445,870.00
shall cease to be paid on January 1, 2009,
Lease Team shall continue through
2019;
First Base Rentals to be paid from city's Bond Proceeds
Fund.
.~i '
~l.
,.,;;. pavment Date
,6'lday.; prior to)
t,' '
, ~"January
,:" ;;' July 1,
, 'li~7:;;;"i:~January
..'h~1~tj. 1 1
' ,..-;r...."JU y ,
l January
,', July 1,
'January
July 1,
January
July 1,
January
July 1,
, 'January
; July 1,
',' January
j:' July 1,
\Janua~
'July 1,
)i1anuary
'i JUly 1
'\' I
NOTE: Base Rentals
'!',L:(:.. although the
DeceInber 31,
-
......
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""""'VENDOR #
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'''';~~!'PHONE
. (Cl;;,..... , .
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':.~;~; ,~,:t ~ ID.!.~:,:.;
".{,
';.
EXHJJ13IT C
"j.
CITY dtF ASPEN
BOND PROCEEDS rUND REQUISITION
Iii
"
SHIP TO:
SHIP DATE:
REQUESTED BY:
SERVICE - YES
~~
.
.
WAIVERS
DESCRIPTION
FA UNIT
PRICE
TOTAL PRICE
INVOICE/PO
DESCRIPTION
BUDGET AVAIL.
TOTAL AMOUNT
~
DATE
COMMENTS
(Three signatures required)
C-l
DEPT DATE
FIN. DATE
REQ. #
TOTAL
AMOUNT
'"
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EXHIBIT D
FIVE YEAR OPERATING piAN FOR PROJECT
"
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Aspen/Pitkin County Housing Authority
530 E, Main Street"" Lower Level
Aspen, CO 8161 I