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Home My WebLink AboutLand Use Case.280 Pfister Dr.A004-992.*D ?f:,Ai~ T)( PN: 2735-113-09036 Case A004-99 Maroon Creek Club Lot 36 Insubstantial Amendment f ~Â¥qÂ»=.444 3 7 m 44 . r7 .#01,1 I CASE NUMBER A004-99 PARCEL ID # 2735-113-09036 CASE NAME Maroon Creek Club Lot 36 Insubstantial PUD Amendment PROJECT ADDRESS Maroon Creek Club Lot 36 PLANNER Chris Bendon CASE TYPE Insubstantial Amendment OWNER/APPLICANT Richard Wax REPRESENTATIVE Michael Figenbaum/Holland & Hart DATE OF FINAL ACTION CITY COUNCIL ACTION PZ ACTION ADMIN ACTION Approved BOA ACTION DATE CLOSED 3/6/00 BY Chris Bendon .. PARCEL ID:~2735-113-09036 DATE RCVD: ~1 /13/99 # COPIES:~-- CASE NO~A004-99 1 CASE NAME:~Maroon Creek Club Lot 36 Insubstantial PUD Amendment PLNR:~Chris Bendon PROJ ADDR:~Maroon Creek Club Lot 36 CASE TYP:~Insubstantial Amendment STEPS:~ OWN/APP: Richard Wax ADR~1150 River Drive C/S/Z:~Aspen, CO 81611 PHN:| REP:~Michael Figenbaum/Holland- ADR:~600 E. Main Street ' C/S/Z:~Aspen, CO 81611 PHN]925-3476 FEES DUE:~46~ (d) + 160 (e) FEES RCVD~620 STAT: F- REFERRALS~ REF~ BY~ DUE:~ ~ MTG DATE REV BODY PH NOTICED Mont . , 1 rE --- DATE OF FINAL ACTION:~ CITY COUNCIL: REMARKS~ PZ: BOA: CLOSED 43Â· 6 Â·60 BY: ~ 04â€¢h DRAC: PLAT SUBMITD: ~ PLAT (BK,PG):| ADMIN: 9â€ž4 .. ASPEN/PITKIN COMMUNITY DEVELOPMENT DEPARTMENT December 7, 1999 Richard Wax 1150 River Drive Aspen CO 81611 Re: A004-99 Maroon Creek Club Lot 35 Insubstantial PUD Amendment Amount Previous balance $92.50 Balance due $92.50 130 South Galena Street - Aspen, Colorado 81611 - (970) 920-5090 JUN-10-99 14 = 08 FROM .HOLLAND8.HART ID=S7092593G7 PAGE 2/2 .. HOLLAND & HART LI.P ATTORNEYS AT LAW DENVER.ASPEN 600 EAST UAIN STREET TELEPHONE (970) 926Â·.1476 BOULDER - <XXOAKDO SPRINGS ASPEN, COLORADO 81611-1953 FACSIMILE [970] 925-92$67 DENVER rECH CENTER .,01*EL FeGENBAUM BEWNGS - BOISE mt*.0-aum@4044.digrt.Gorn CHEYENNE - JACKSON HOLE SALT LAKE Cr[Y June 10, 1999 BY FACSIMILE Mr, Chris Bendon Community Development Department 130 South Galena Street Aspen, Coloado 81611 Re: Application for Insubstantial PUD amendment for Lot 36, Maroon Creek Club PUD. City of Aspen. Colorado Dear ChriT In connection with the above referenced Application submitted to you on January 13, 1999, it is my understanding that Aspen Survey Engineers has delivered to you copies of the preliminary Maroon Creek Club Lot 36 P.U.D. Amendment, which should be attached to the Application as Exhibit E. As you know, the original surveyor on the projÂ¢Ct was Carl R. Carmichael, but due to difficulties Mr. Cannichael was recently replaced by John Howerth, who has prepared the P.U.D. Amendment. The P-U.D. Amendment indicates the rear setback encroachments discussed in the Application and certain other encroachments by the roof eaves on tbe front and side setbacks, Please consider the Application modified to include the encroacbments shown on the P.U.D. Amendment. I note that the preliminary P.U.D. Amendment contains several typographical errors which will be corrected when we have received your approval to proceed to a final version. Please let me know if you have any questions or comments, or if there is anything else you will require before approving the Application. On behalf of Richard Wax, I want to express his appreciation for the patience and understanding that you and the Planning Office have shown during this process. Sincerely, 650,4 4*-16-- Michael Feigenbaum for Holland & Hart LLP ec: Jeff Davis ASPEN:0027180.01 MAR-12-99 13:11 FROM=HOLLANDSHART ID=9709259367 PAGE 2/2 .. HOILAND & HART up ATTORNEYS AT LAW To: Carl Carmichael Froin: Michael Feigenbaum Re: Lot 36, Maroon Creek Club Dater March 12, 1999 BY FACSLAm.E Carl Inadditiontothe standard plat notes, surveyor notes, property description, bearings and signature blocks (Owner, Title Company, Community Development director, City Engineer and Cleik and Recorder), please insert the folioing language on the Plat amendment for Lot 36, Maroon Creek Club: The modification ofthe building envelope depicted on this M~oon Creek Club Lot No. 36, PUD Amendment No. 1, shall not be deemed to be a legal noncomforming dimension, but shall be valid only for the life ofthe building existing on the date hereof. Please call me with any questions. ce: Chris Bendon ASFEN:0026333.01 .. HOLLAND & HART LLP ATTORNEYS AT LAW DENVER Â· ASPEN 600 EAST MAIN STREET TELEPHONE (970) 925-3476 BOULDER Â· COLORADO SPRINGS ASPEN, COLORADO 81611-1953 FACSIMILE (970) 925-9367 DENVER TECH CENTER MICHAEL FEIGENBAUM BILLINGS Â· BOISE mfeigenbaum@hollandhart.com CHEYENNE Â· JACKSON HOLE SALT LAKE CITY - January 13, 1999 JdAN1 1 244949 VIA HAND DELIVERY ASPEN / PITKIN 069A#%~NITY DEBAiNF Mr. Chris Bendon Community Development Department 130 South Galena Street Aspen, Colorado 81611 Re: Application for Insubstantial PUD amendment for Lot 36, Maroon Creek Club PUD, City of Aspen, Colorado Dear Chris: This application is for the following: Code Section Insubstantial PUD amendment 26.84.080 For Lot 36, Maroon Creek Club Applicant: Lot 36 Maroon Creek Club, LLC, a Colorado limited liability company BACKGROUND AND SUMMARY OF ISSUE Tiehack Development Corporation is the owner and developer of Lot 36, The Maroon Creek Club PUD, which has a street address of 280 Pfister Drive, Aspen, Colorado 81611. The property is located adjacent to the Buttermilk Ski Area, as shown on the Vicinity Map, attached hereto as Exhibit A. The property is approximately 15,000 square feet and is zoned R-15, and is a legally created lot in the Maroon Creek Club PUD. The existing approvals for the Property and Maroon Creek Club PUD are listed as Exception Nos. 9, 11, 13, 14-17, 20, 26,27,32,33 and 35 in the Title Policy described below. As evidence of ownership, a Policy of Title Insurance issued by First American Title Insurance Company, dated February 7, 1997, is attached hereto as Exhibit B. Pursuant to the Operating Agreement dated June 15, 1998, the applicant, Lot 36 Maroon Creek Club, LLC, is authorized to develop the property with a spec home. The Operating Agreement is attached hereto as Exhibit C. The architect working on the development project is Gibson-Reno Architects. The surveyor working on the project is Carl R. Carmichael PLS. The R-15 zone district requires a 30 foot front setback and 20 foot side and rear setbacks. The building envelope of the property is depicted on the Survey prepared by Carl Carmichael on March 16, 1998, which is attached hereto as Exhibit D. I have also attached a portion of the recorded PUD as Exhibit D-1, which also depicts the building envelope. The Blil/:2/R/J/&. ~ HOLLAND & HART LLP~ ATTORNEYS AT LAW Mr. Chris Bendon January 13, 1999 Page 2 applicant commenced construction on the project in July, 1998, in accordance with generally accepted industry standards, and at all times believed in good faith that the project was being constructed consistent with all applicable approvals. In December, 1997, the applicant was made aware that a portion of structure encroached upon the rear setback at several locations. These encroachments are depicted on the Survey prepared by Carl Carmichael dated January , 1999, which is attached hereto as Exhibit E. An affidavit from Carl Carmichael describing the circumstances which led to the encroachments is attached hereto as Exhibit F. The applicant hereby requests approval of a Insubstantial PUD Amendment for Lot 36, the Maroon Creek Club PUD, to permit the encroachments depicted on Exhibit E for the life of the existing structure. No other approvals or changes are requested. CRITERIA FOR APPROVAL The applicant has satisfied the criteria for the Insubstantial PUD amendment, as described in Section 26.84.080(A)(9) of the Code. In particular, on the direction of the Aspen City Attorney's Office, the Insubstantial PUD Amendment requested herein shall not constitute a further variation of the project's approved dimensional standards because such encroachments are deemed to be temporary and shall only be in effect during the life of the existing structure. SUPPORTING APPLICATION MATERIAL The following supporting information is submitted to the Planning Office separately. 1. Owner's Consent 2. Copy of Pre-Application Summary 3. Agreement to Pay Form Please call me with any questions you have relating to the application. Thank you for your time and assistance in this matter. Sincerely, *dul 4Â£- Michael Feigenbaum for Holland & Hart LLP Enclosures CC: Jeff Davis ASPEN:0025755.01 .. January 12, 1999 Mr. Chris Bendon Community Development Department 130 South Galena Street Aspen, Colorado 81611 Dear Mr. Bendon: The undersigned hereby authorizes Michael Feigenbaum to act on behalf of Lot 3 6 Maroon Creek Club, LLC in connection with matters relating to the application for the Insubstantial PUD Amendment for the property located at Lot 36, Maroon Creek Club PUD, in Aspen, Colorado. LOT 36 MAROON ~REEK CLUB, LLC f- By:_ ri .. CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY PLANNER: Chris Bendon, 920.5072 DATE: 1.11.99 PROJECT: Maroon Creek Club Lot #36 PUD Amendment #1 REPRESENTATIVE: Michael Figenbaum OWNER: -Richard Wax and Assoc. TYPE OF APPLICATION: Insubstantial PUD Amendment DESCRIPTION: Amendment to building envelope Land Use Code Section(s) 26.84.080 Planned Unit Development Amendments Review by: Staff, Referral agencies, Director Public Hearing: No. Referral Agencies: Engineering, Planning Fees: Planning Deposit Minor ($460) Referral Agency Fees: Engineering, Minor ($160); Total Deposit: $620(additional hours are billed at a rate of $185/hour) To apply, submit the following information: 1. Proof of ownership. 2. Signed fee agreement. 3. Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf ofthe applicant. 4. Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners ofthe property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. 5. Total deposit for review of the application 6. 2_ Copies of the complete application packet and maps. HPC = 12; PZ = 10; GMC = PZ+5; CC = 7; Referral Agencies = 1/ea.; Planning Staff= 1 7. An 8 1/2" by 11" vicinity map locating the parcel within the City of Aspen. 8. Affidavit from surveyor of error. 9. Site improvement survey including topography and vegetation showing the current status, including all easements and vacated rights of way, of the parcel certified by a registered land surveyor, licensed in the state of Colorado. (This requirement, or any part thereof, may be waived by the Community Development Department if the project is determined not to warrant a survey document.) Draft plat. 10. Additional materials as required by the specific review. Please refer to the application packet for specific submittal requirements or to the code sections noted above. 11. A written description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. 12. Copies of prior approvals (Copy of approved plat map for Lot 36) Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. Jan 12 99 03:0Op Jeffret, B. Davis (970] 544-5116 P. 1 JAN-11-99 17:13 FROM:HOL~&HART ID:970925 PACE 5/10 ASPEN/PITKIN COMMUNITY DEVELOPMENT DEPARTMENT Apreement for Payment of City of Aspen Devilooment Anubsatien.Eggs CITY OF ASPEN (hereinafter CITY) and Lot 36 Maroon Creek Club LLC (hereinafter APPLICANT) AGREE AS FOLLOWS: 1. APPLICANT has submit[ed to CITY an apprication for a PUD insubstantial amendment (hereinafter. THE PROJECD 2. APPLICANT understands and agrees :har City of Aspen Ordinance No. 49 (Series of 1998) establishes a fee StrOCTUre for Planning applications and the paymenr ofail processing fees is a condition precedent to a determination of application completeness 3. APPLICANT and CIrr agres thar because of thc size, nature or scope of the proposed ProjeCI- It is nor possible at this time to ascertain the full extent of rhe Costs involved iii processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and :0 thereatter permit addirional Costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees he will be benefited by retaining greater cash liquidiry and will make additional payments upon notification by the CITY when they are necessary as cosa are incurred. CITY agrees ir will be benefired through the greater certainty of recoverioz its full costs to process APPLICANT's applicaiion. 4. CITY and APPLICANT further agree thai it ts impracticable for CITY staff zo complete processing or present sufficient mformation to the Planning Commission and/or City Council to enable Ihe Planning Commission and/or City Council zo make legally required findings for project approval, unless current billings am paid In full prior to decision. 5, Therefore, APPUCANT agrees thar in consideration of the CITY' 5 waiver of irs fight to collect r full fees prior ro a determination of applicadon completeness. APPLICANT shall pay an initial deposit in the amount of S 620.00 _which isfor_ hours of Planning staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings To CITY to reimburse the CITY for the processing of the application menhoned above, including post approval review. Such penodic payments shall be. made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued COWS shall be ground, for suspension of proceÂ«ing p CAAE d.f CITY OF ASPEN APPLICANT J' to, 0 G rnA,tow C,Â£e L LOT 3613P@ON i LLC, . CREEK BLUB LLO/ 1 - $/La _a~, /1 4 yl- By: , ~,Â®tlie Ann Woods V' Agent ~# 1 / / ;/Community Development Director Date: ~j 7'LI,9 Mailing Address: 1 ) 5-0 2, ve.. 91 - Ast â‚¬0 cO Â£/411 r-- ~ LAND USE APPLICATION ~ PROJECT: Name: Lot 36, Maroon Creek Club Location: 280 Pfister Drive, Aspen, CO 81611. Lot 36. Maroon Creek Club PUD (Indicate street address, lot & block number, legal description where appropriate) APPLICANT: Name: Lot 36 Maroon Creek Club, LLC Address: 1150 River Dr., Aspen, CO 81611 Phone #: REPRESENTATIVE: Name: Michael Feigenbaum, Holland & Hart LLP Address: 600 E. Main. Suite 104. Aspen. CO 81611 Phone #: 925-3476 TYPE OF APPLICATION: (please check all that apply): U Conditional Use D Conceptual PUD E Conceptual Historic Devt. m Special Review ER Final PUD (& PUD Amendment) El Final Historic Development ~ Design Review Appeal El Conceptual SPA U Minor Historic Devt. ~ GMQS Allotment I) Final SPA (& SPA Amendment) IJ Historic Demolition U GMQS Exemption m Subdivision g Historic Designation ~3 ESA-8040 Greenline, Stream El Subdivision Exemption (includes U Small Lodge Conversion/ Margin, Hallam Lake Bluff, condominiumization) Expansion Mountain View Plane U Lot Split U Temporary Use 2 Other: E Lot Line Adjustment E Text/Map Amendment EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) Existing structure encroaches on 20' rear setback PROPOSAL: (description of proposed buildings, uses, modifications, ete.) Approval for temporary encroachment for life of existing structure Have you attached the following? FEES DuE: $ 620.00 &1 Pre-Application Conference Summary El Attachment #1, Signed Fee Agreement E] Response to Attachment #2, Dimensional Requirements Form m Response to Attachment #3, Minimum Submission Contents E Response to Attachment #4, Specific Submission Contents E] Response to Attachment #5, Review Standards for Your Application .. ATTACHMENT 2 DIMENSIONAL REQUIREMENTS FORM Project: Lot 36, Maroon Creek Club PUD Applicant: Lot 36 Maroon Creek Club LLC Location: 280 Pfister Drive, Aspen, CO 81611 Zone District: R-15 Lot Size: Approx. 15,000 Lot Area: (for the purposes of calculating Floor Area, Lot Area may be reduced for areas within the high water mark, easements, and steep slopes. Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: Proposed: Number of residential units: Existing: Proposed: Number ofbedrooms: Existing: Proposed: Proposed Â°/0 of demolition (Historic properties only): DIMENSIONS: Floor Area: Existing: Allowable: Proposed: Principal bldg. height: Existing: Allowable: Proposed: Access. bldg. height: Existing: Allowable: Proposed: On-Site parking: Existing: Required: Proposed: % Site coverage: Existing: Required: Proposed: % Open Space: Existing: Required: Proposed: Front Setback: Existing: Required: Proposed: * Rear Setback: Existing. Required: Proposed: Combined F/R: Existing: Required: Proposed: Side Setback: Existing: Required: Proposed: Side Setback: Existing: Required: Proposed: Combined Sides: Existing: Required: Proposed: Existing non-conformities or encroachments: * Variations requested: * *see attached plat FROM : CARMICHAEL SURVEYING ~ PHONE NO. : 9709630757 ~ Jan. 12 1999 04:50PM Pl EXHIBIT- F AFFIDAVIT OF CARL R. CARMICHAEL PLS, Ltd. 1 3 L, TO: CITY OF ASPEN PLANNING DEPARTMENT DATE: JANUARY 12, 1999 RE: LOT 36, MAROON CREEK CLUB I was contracted to do start-to-finish survey work for three lots in the Maroon Creek Club (Lots 27,35 and 36). Normal procedures for a surveyor in laying out a house designed by an architecture firm begin with a site plan produced by the architect. On that basis, the surveyor relies on design work by an architect for the structure, and on design work by a structural engineer for the foundation. In the case of Lot 36, if one examines the site plan, it will be apparent that the house barely fits within the building envelope. As shown on the site plan, the roof overhangs also fall within the envelope. Therefore, I used three points to orient the house foundation as drawn on the site plan. The dimensions that I used, as well as the points l used, are shown on the attached map (labeled "As-Built House"). You will note that the three dimensions that I used based on the foundation sketched on the site plan, and the house as constructed, fit those dimensions at those three points. The errors occurred as a result of the site plan being incorrectly scaled within the building envelope. It appeared there would be plenty of room along the westerly side of the lot where the encroachments occurred: therefore, I did not specifically check the westerly site plan foundation scaling or the two house corners and two light wells to assure they were within the building envelope. It is not normally necessary for the surveyor to check every single calculation, detail, and accuracy of work provided by others. I do carry certain responsibilities as a Professional Land Surveyor to accurately and correctly stake the specified foundation to the best of my knowledge and ability. Standard staking procedures involve marking the primary foundation corners, while add-on details such as wing walls, light wells, retaining walls, column supports and interior footings are left to the concrete contractor. In this case, it appears that a combination of design work, scaling errors, and not double checking each and every detail, structural and architectural, for conformity to compliance with the parameters of the building envelope, led to the situation that currently exists. I myself, had no knowledge the house encroached into the set backs until Schmueser, Gordon, Meyer had a survey crew on site for unrelated work and during the course of that work they found the encroachments. At that point, I was not informed by Steve Ehlers, the field survey coordinator for SGM, of the encroachments which, as professional ethics require, l should have been. Instead, the information was relayed to my employer via a third party. At that time I personally checked the information provided by SGM and found substantial agreement with their work. The results of my checking are shown on said map labeled "As-Built House.'0 Armed with the results of my survey checking the encroachments, I contacted Sara Thomas at Community Development, Building, Planning and Zoning to inform her of the situation and to seek the proper course of action to rectify the encroachment problem. At that point, I came to the conclusion that legal advice and assistance was necessary. I informed Richard Wax & Associates of my conclusion and their attorney, Michael Feigenbaum, became involved in reaching a solution amendable to all parties. .. HOLLAND & HART LLP ATTORNEYS AT LAW DENVERÂ·ASPEN 600 EAST MAIN STREET TELEPHONE (970) 925-3476 BOULDER Â· COLORADO SPRINGS ASPEN, COLORADO 81611-1953 FACSIMILE (970) 925-9367 DENVER TECH CENTER MICHAEL FEIGENBAUM BILLINGS Â· BOISE mfeigenbaum@hollandhart.com CHEYENNE Â· JACKSON HOLE SALT LAKE CITY January 12, 1999 VIA HAND DELIVERY Mr. Chris Bendon Community Development Department 130 South Galena Street Aspen, Colorado 81611 Re: Application for Insubstantial PUD amendment for Lot 36, Maroon Creek Club PUD, City of Aspen. Colorado Dear Chris: This application is for the following: Code Section Insubstantial PUD amendment 26.84.080 For Lot 36, Maroon Creek Club Applicant: Lot 36 Maroon Creek Club, LLC, a Colorado limited liability company BACKGROUND AND SUMMARY OF ISSUE Tiehack Development Corporation is the owner and developer of Lot 36, The Maroon Creek Club PUD, which has a street address of 280 Pfister Drive, Aspen, Colorado 81611. The property is located adjacent to the Buttermilk Ski Area, as shown on the Vicinity Map, attached hereto as Exhibit A. The property is approximately 15,000 square feet and is zoned R-15, and is a legally created lot in the Maroon Creek Club PUD. The existing approvals for the Property and Maroon Creek Club PUD are listed as Exception Nos. 9, 11, 13, 14-17, 20, 26,27,32,33 and 35 in the Title Policy described below. As evidence of ownership, a Policy of Title Insurance issued by First American Title Insurance Company, dated February 7, 1997, is attached hereto as Exhibit B. Pursuant to the Operating Agreement dated June 15, 1998, the applicant, Lot 36 Maroon Creek Club, LLC, is authorized to develop the property with a spec home. The Operating Agreement is attached hereto as Exhibit C. The architect working on the development project is Gibson-Reno Architects. The surveyor working on the project is Carl R. Carmichael PLS. The R-15 zone district requires a 30 foot front setback and 20 foot side and rear setbacks. The building envelope of the property is depicted on the Survey prepared by Carl Carmichael on March 16, 1998, which is attached hereto as Exhibit D. I have also attached a portion of the recorded PUD as Exhibit D-1, which also depicts the building envelope. The ~ HOLLAND & HART ap~ ATTORNEYS AT LAW Mr. Chris Bendon January 12, 1999 Page 2 applicant commenced construction on the project in July, 1998, in accordance with generally accepted industry standards. In December, 199~ the applicant was made aware that a portion of structure encroached upon the rear setback at several locations. These encroachments are depicted on the Survey prepared by Carl Carmichael dated January -, 1999, which is attached hereto as Exhibit E. An affidavit from Carl Carmichael describing the circumstances which led to the encroachments is attached hereto as Exhibit F. The applicant hereby requests approval of a Insubstantial PUD Amendment for Lot 36, the Maroon Creek Club PUD, to permit the encroachments depicted on Exhibit E for the life of the existing structure. No other approvals or changes are requested. CRITERIA FOR APPROVAL The applicant has satisfied the criteria for the Insubstantial PUD amendment, as described in Section 26.84.080(A)(9) of the Code. In particular, on the direction ofthe Aspen City Attorney's Office, the Insubstantial PUD Amendment requested herein shall not constitute a further variation of the project's approved dimensional standards because such encroachments are deemed to be temporary and shall only be in effect during the life of the existing structure. SUPPORTING APPLICATION MATERIAL The following supporting information is submitted to the Planning Office separately. 1. Owner's Consent 2. Copy of Pre-Application Summary 3. Agreement to Pay Form Please call me with any questions you have relating to the application. Thank you for your time and assistance in this matter. Sincerely, AA, 1.. i ins Michael Feigenbaum for Holland & Hart LLP Enclosures CC: Jeff Davis ASPEN:0025755.01 .. January 12, 1999 Mr. Chris Bendon Community Development Department 130 South Galena Street Aspen, Colorado 81611 Dear Mr. Bendon: The undersigned hereby authorizes Michael Feigenbaum to act on behalf of Lot 3 6 Maroon Creek Club, LLC in connection with matters relating to the application for the Insubstantial PUD Amendment for the property located at Lot 36, Maroon Creek Club PUD, in Aspen, Colorado. LOT 36 MAROON CREEK CLUB, LLC By- 2/1 f- \J 1 1 i:\ 2,&*1~:~FiE TOPOGRAPHIC MAP . Ii; PLe : 72 '.F 744:\, '. 1,0: 94.- \ r\>946.91 . 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CONdOLIDATED MOLD, 310 034 0077 , 891 - 243;,~ 1 4.54 , Fige 2 0 .4*.--- 4 92 T,w#*Ow,4.Al/Wip/4Â¥114Â¥1~49,10*AVF'/timj~ 41.29~i Fo,m No. 1A02.92 .*CI:Uit (10/17/92) garmrag ~~021' *14Â·.41 ALTA Own*; potâ€¢cy ~=1=,-'90.=,- yj<f tie -,R/ POLICY OF TITLE INSURANCE h#Â·'i.1 144* b -4fbri 4 ; ' Tz M k RIO *W#/ -14 .1 493) EX H 16/T .3 6* (94Â¢4 .,5,1- <Id #~~.r## KI= WflÂ·i ISSUED BY fil First American Title Insurance Company â‚¬** /27: 44 611,1 (41,44 akâ‚¬Â¥ *29 issy SUBJECTTOTHE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE ,Â¢hf B AND THE CONDInONS AND STIPULATIONS, FRST AMERICAN TITLE INSURANCE COMPANY; a California 1,3,91} 444 corporation, herein called the Company, Insures, as 01 Date of Policy shown in Schedule A, against loss or damage, 0.:11 ~kiU not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the Insured by reason of: *10, 14,&.'lit '9' 94 4 1. Tite to the estate or interest described In Schedule A baing vested other than as stated therein; 2. Any defect In or lien or encumbrance on tie title: 4,166/3 *:44?:. ..... *'T,ill 3. Unmaiketability of the title, /-Ir.â‚¬~ l*20 4 Lack o' a n.ght 01 access to and trom the land. Ski}~ The Company witi a!so pay the costs, attorneys' fees and expenses incurred in defense of the lit.e, as insured, but Â©4 /299 orly tc me W.ent provided in tie Conditions and Stipulations. iti*9 .9, *if k#, *lf..) *44,8,...~ 3Ww'-4 2Â«R?,1 014* 4'fr,4* 44$ 4*. &03 Â»1, *ta Â«4 First AmericanTitle Insurance Company ~~Â¢5 4':<44 P' 44 1 (Â¢':.1':,1 AcES,DEN r i., 647274 A77Â£51 rn Ut L &-~1, SEC'RETARY /0 1/.4.9.4 - oe,il By: CONSOLIDATED HOLD; 316 634 0677; Sep 23~8 14.55; Page 3,9 .. . OWNER' S POLICY SCHEDULE A Ouko No. 404743 -0 Insuraroe Amount $ 4,000,000.00 Ftlicy No. J 647274 Premium Amount $ 3,392.50 Date of Folicy: FebÂ£uoty 7, 1997 at 3:22 PM 1. Na~e of Insured: TIEHACK DEVELOEMENr OCE<i*DEATION. a Colon:*10 corporation 2. The estate or inteâ„¢it in the laild which is covered by the policy is: FEE SIMPLE 3. Title to the estate or interest in the land is vested in: TIEXACK DEVELGIâ‚¬NT CCRFORATICN, a Colorado corpeatien 4. The land referred to in this policy ia located in the State of Colorado, County of PITKIN , and is deecribe,1 as follows: Lots 35. 36 and 39, MARDON CREEK CLUB, according to the Plat thereof filed November 15, 1993. in Plat Book 33 at Page 4. 0 ,... 12NLÂ· r.* C ' 1 Ooultersigna tute Authorized Ot ticer ar Agent This Policy is invalid uniess the cover shaet and Sctalula B are attached. ALTA Owner' s Policy (10-17-92) FIRST AMERICAN TITLE INSURANCE COMPANY w.:ril Dy: CONSOLIDATED I IOLD, 3 1 C 604 0677; Dep-23-90 14.5,3:; Page 4/9 .. SO{EXULE B Order No. 404743 -0 mlicy No. J 647274 PARr I Thls policy does not insure against loss or d-age (and tie Ccmvezxy will not pay costs, attorneys' fees or evanses) which arime by re,in of: 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levLes taxes or essessights cr, real property or by the public IBC=rds. 2. Any facts, rights, interests, or' claims which are not shown Ely the ,:blic reoords but which could be ascertained by an inspectioi of said land or by tnaking inquiry - of persons in possession thereof. 3. Easem~ts, or claims of eas,Ements, or ercunbraroes which are ret shown by the public reccrd. 4. Discrepancies, conflicts in boundary lines, shortages in area, encroachments, or any atiar facts which a oorrect survey wculd disclose, and which ace not sho,al by public records. 5. Any lien, or right to a lien, far servioes, labor or material thizretofore or tiereafter furnished. i,nposed by law anl rot shÂ»,n te, the public: record. 6. Right of the Pmprietor of a Vein or Lode to extract and remove his cre therefrom, s}nuld the salle be found to peâ„¢t=ate or intersect the pranises hereby granted, as reserved in United States Patent recorded June 16, 1894, in Book 55 at Page 45, August 16, 1906, in Book 55 at Page 157, August 11, 1909, in Book 55 at Page 173, August 26. 1911, in Beck 55 at Page 189, and August 26, 1911, in Bock 55 at Page 191. 7. Right of way for ditches or canals constructed by the autharity of *e Ulited States, as reaerved in TJnited Stateâ€¢S Patrnt rexirded January 8, 1913, in Book 55 at Page 207, Jax~ary 3, 1921, in Book 55 at Page 563, April 17, 1923, in Book 55 at Page 571, December 22, 1928, in Beck 162 at Page 142, September 13, 1934. in Book 162 at Page 400, April 22, 1944, in Book 167 at Page 557, and May 20, 1953. in Book 180 at Page 155. 8. Easements and rights of way for skiing, 4 , egress, ditches, reservoirs and utilities, and rights to use portirns of subject property all as resen,d by Aspen-post Chupary in the Dead to Art Pfister, a/k/a Arthur O. Pfister reoorded January 6, 1975, in Book 295 at Page 306. 9. Resolution No. 86-81 of the Board of CaAity Ocmnissicners of Pitkin County. Colorado, recorded Septenber 4, 1986, in Book 518 at Page 198. C Contirued) ALTA Standard Policy, Western Region - Fozm No. 1402-C (Rev. 9/87) FIRST AMERICAN TITLE INSURANCE 00â€¢PANY uc,il uy. Â©ONJOLIDAT-CD IIOLO, 010 004 0077 acl)-20-50 14.DO, 7/(je ~19 .. m:E,rICÂ»46 (ccntir-Â¢1) Order No. 404743 -0 Policy No.J 647274 10. Easement and right of way for the purposes of laying, constructing. inaintainirg, operating, repgring, alter'irg, inspecting, replacing. re,naving and/or changing the size of, cre or nore pipelinge far the transIxrtaticri of gas, as granted by Arthur Pfister to Fecky Manrtain Natural Gas Division of K N Energy, Irc., a Kansas ocrpcration, by instrurent recorded August 23, 1990, in Book 627 at Page 963. 11. Resolution No. 90-87, Resclution of the Board of Ciunty OCIrrnissioners of Pitkin Canty, Colorado, Grentirg App~oval of General SulnU.ssicn for Subdivision, 1041 Bwircnrwtal Hazard Heviat Scenic Foreground Overlay Review, Plarned Unit Develcrn,Ent ard FWCnirg for the Pfister Ranch/Golf Application, reoorded September 13, 1990, in axic 629 at Page 471. 12. Easement anl right of way for the purpee of laying, COnstructirg, ZOO~:ft,j~ %722;Lt:~ trar=portation of gas, as granted by niedl Melfer to IU:ky Moultain Natural Gas Division of K N Engrgy, Inc., a Kansas corporation by instament recorded October 3, 1990, in Book 631 at Page 29. 13. Resoluticn No. 91-111, Resolution of the Board of Cou-rty Cattaissioners of Pilkin County, Colorado, Granting Approval of Detailed Subnd-asicn for Subdivisien, 1041 En,ircnmental Hazard Review, Scenic Pbreground Overlay lunriew, Plarred Wit Developrent, Fâ€¢azoniqg, Special Review Apco:oval for Relocation of the ]Â®10 Radio Tower, ht Line Actjus'Urent with the ARJ Property, Gereral and Detailed Subnission to the "Grand Amenckient" Partial of tle Application and Ainencknarrt: to tive Euttermilk Ski Area Master Plan for the Pfister Ral*wâ‚¬olf Application. recorded September 23, 1991, in Book 657 at Page 306. 14. aesolutial No. 91-112 of the Board of County Ca~nissicners of Pitkin Canty, Colorado, Amendment to Resolution No. 91-111, recardecl September 23, 1991, in Book 657 at Page 384. 15. Resolution No. 93-120 of the Board of County Ocmni ssicrers of Pitkin County, Colorado, recorded July 28, 1993, in Book 719 at Page 508. 16. Resoluticn No. 93-104, Resolution of tha Board cf Oounty Ocmnissicners of Pitkin Cointy, Ooloral Grantirg Flnal Plat Approval for Maroon Creek Club IprnnÂ®<1 August 4, 1993, in Book 721 at Page 245. 17. Subdivisicn Inirovgnants Agreetrâ€¢ant for Marocn Creek Club recorded Nocugnber 12, 1993, in Book 730 at Page 606. C Continhed) FIESr AMERICAN TITLE INSURANCE COMPANY Derl tly. CONaOLICIATED HOLD; 3 10 034 0077; jep-2.322 14:07; Page 0/9 .. EloCEFT]]ONS (occtinued) Order No. 404743 -0 Policy No.J 647274 18. Terms, pmvisions ard corditions of Ttail Easemant Agreemant recorded November 12, 1993, in Back 730 at Page 648. 19. Dedication Agreement for Roads recorded Now,nber 12, 1993, in Book 730 at Page 662 and Assigrn,ent and Aseurption of Dedication Ngeement for Ebade rwâ€ž*d FÂ»br'1ary 17, 1994, in Book 742 at Page 135. 20. Subdivision Ilrprovements Agreement: re:Â¤ded November 12, 1993, in Book 730 at Page 606. 21. Terms, provisions and conditions of Avigation Easetent recorded Noverter 12, 1993, in Book 730 at Page 690. 22. Watar Service Agreenant between the City of Aspen, Colorado, a Nulicipal aorporation and a hc:In rule city, Pearce Equities Group II Limited Liability Ocoueny, a Uteh limited liability a,TWIV, Artfur O. Pfister, Elizabeth H. Pfister, SEP 1~esidtnne Trust an] CDP Basiderne Trust, a ColorÂ»] Trust Iâ€¢â€¢n=â€¢*ci November 15, 1993, in Bock 730 at Page 797. 23' Ditch PgreEment for Willow Ditch from Pearce Equities Group II Limited Canparly to tie Walter P. PE,apcke Life Insuratne Trust recorded NovEâ€¢ter 15, 1993, in Book 730 at Page 868. 24. Easement AgreE,Ment for Willow Ditc=h fran Friedl Pfeifer Aspen Real Eatate Irrevocable Tnist NUnber 1 to Wai tar P. Ae,jcle Life Ir~surz11108 T~ist r-rrr-ded Noveâ€¢*Â¥,1 15, 1993. in Book 730 at Page 902. 25. Restrictirns, which do not contain a fcrfeiture or reverter clause, as crntained in instrument recorded Nlverter 15, 1993, in Bock 731 at Pages 105 ard 125 as amended by instrument recorded July 26, 1994, in Book 756 at Page 597. 26. Easemalts, Ilaservations and restrinticns set forth cn Final Subdivision Plat and PUD far Maroon Creek Club recorded Novgnber 15, 1993, in Plat Book 33 at Page 4, and March 31, 1994, in Plat ver* 34 at Page 23. 27. Resolution No. P2-93-20 of the Planning and Zoning Camnission of Pi&in County, Colorado, recordad Novenber 15, 1993, in Book 731 at Page 451. 28. Agreenmt bet,~aerk Pearce Equities Grof II Limited Liability Conpany, a Utah Limited liability cal,pany ard Aspen Skiing Ocgparly, a Ooloado gereral partnership, reaorded NovesÂ®er 16, 1993, in Book 731 at Page 472. C Ceâ€¢itlinued) FIRSr AMERICAN TITLE INSURALCE COMPANY Ge,l Oy: CONOOLIDATED HOLD, 016 604 0677; Gep - 20~@ 14:50; Page 7/9 . EorEFI'IONS (cxxrtixuad) 04&2 No. 404743 -0 Policy No.J 647274 29. fâ€¢est=ictions, which do not cantain a forfeiture aT reverter clause, as contained in instrunent reoar(led Decomber 2, 1993, in Bock 733 at Page 598 as merded by ingtamants recorded February 17, 1994, in Book 742 at Page 83, June 8, 1994, in Book 752 at Page 754, July 26, 1994, in Book 756 at Page 597 and Septentpr 12, 1996, at Rcifi-ition No. 396947. NOrE: AssignmBnt arrl Chasignatirn of Sucoessor IÂ»clararrt for Maroon Creek Club recorded Ity 11, 1994, in Book 750 at Page 242. 30. Aciess Easeguent Agreelmt between Camunity Health R,asaciroes, Iric, a Colorado non-profit corporation and Pearce Equities Group II Limited Liability Company, a Utah limited liability company recorded November 12, 1993. in Book 730 at Page 774. 31. Memorandum of *tion between Gregory N. Thomas, Thomas J. ibl?fmuster, Kenneth D. Bernstein ar*1 Marocn Creek Limited Liability Colviny, a 0010~2*10 11.mited litlbility carpany reoarded November 23, 1994, in Book 767 at Pege 851. 32. Resoluticn NO. P2-95-01 of the Pitldn Oolmty Plarning ard Zoning Camd.ssicn ra-rier**i March 13, 1995, in Book 776 at Page 42 and re-reoorded March 24, 1995, in Book 777 at Bags 69. 33. Resolution No. 95-128 Pitkin Quity Board of County Ca,missioners recorded August 28, 1995, in Book 791 at Page 821. 34. Assignment of Road Maintenencle Agregments recorded September 3, 1996, at Reception No. 396644. 35. P.U.D. Amencknent recorded Decanber 19, 1996, at Reception No. 400129. 36. Any loss or damage resulting fran the failure to provide 13'2 Company or its authxized agent evidenoe that all dues and/or' asseagnInts levied by the HoneoÂ·Jners Assoclaticn have been paid. FIRST Alâ‚¬RICAN TITLE INSURANCE alwIPANY btfill Cly. LUINOULnJAICU MULU; 010 004 UO//; be[J- 2 .3 -20 14. 09; relge 0,9 - EXCLUSIONS FROM COVERAGE The following maaers am expressly excluded from the coverage at thls policy and the Company will not pay loss or darnage, costs, attorneys' lees or expenses Which arise oy reason of: 1. (a) AnY law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, proh,biang or relating to (i) ttle occupancy, use, or enloyment 01 the land: 00 the character, dimensions or location of any improvement now or hereater Br ected on the land; (id) a separadon in ownership or a change In the dimensiens of ana Of the land Of any parcal of which the land is of wa a part or Ov) environmental pfOreabon, or the Act of any violation ot these laws, ordinances or governmental regulations, except to the extent that a notice ot the enforcement thefeal or a notte 01 a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public reccrds at Date (b) Any governmental police power not excluded by (a) above, except m the ement thar a notice of the exercise thereof or a nouce of a defect, hert or ercumbfance resulting .from a violation or alleged violabort attechng the land has been recordBd in the public recolds al Date of Policy. 2. Rights of eminent domain unless nollce of the exercise thereof has been recorded In the public records at Date of Policy, but not excluding from coveiage any taking wnich Mas occurÂ® prior to Date 01 Policy which would be binding on tile nghts ot a purchaser for value without knowledge. 3. Detects. Ilens, encumbrances, adve,se claims or other mathrs. (a) created, suttered, assumed or agreed to by tile insured claimant; (b) not known to the CompanÂ¥, not recomed in the public lecords at Date of Policy. but known to the insured claimant and not disclosed jn wrrting to tile Company by the insured cialmant prlor to The date the Insured claimant became an insured under this policy: (c) resulting in no loss or damage to #le insured dainiant; (d) allaching or created subsequent to Date of Policy: or (4 :Bsulbng in loss or damage which would not have been sustair.ed it the insured claimant had paid value for the estate or interest insured by this poitcy 4. Any claim, which ariseS 0,Jt 01 the hrisacbon vesting in the Insured the estats or intefest Insured by #Ws policy, by reason cl tile operation of federal bankruptcy, itate Insolvency. or similar creditors' rights laws, that is based on: 0 43 transackn crea[Ing the estate or Interest lisured oy this policy being ceemed a traudulent conveyance or hauditent transfer; or fii) the transaction creang the estate or interest insured by this policy being deerned a prefergntial Mnsfer except where the preferertal Mansfor resulls tron me failure: (a) to timely record the Instrument of transfer: or (b) of such recordation to impart nodes to a pufchaser for value or a iudgment or lien creditor. CONDITIONS AND STIPULATIONS 1. DEFINITION Of TERMS. by this policy which constltuti the basis Of 1058 Or damage lor any logs or damage causle tharaby. and shail AN, to the ext* fissible, the hasls 01 calculgting (bi In the event of iny litgaton, tncluoing Imetion The tollowing terms wman used In this policy mean' the amount of Ihe loss or damage. M the Company Is the Comparly or *Im the Company'& coosent, IN Comia (al 'tnsured' the insured named In Schedule A, and, poludiced 9/the filure of the insured claimant to provide the shall hava 10 Itabiltly for loSS M dam&08 until Xere Mas 02 stÂ»ct :0 any lights of detonses the Compan> would have iequired pfoof of low or dallidve, litte Company'& obligations a linal determingon Dy a court of Compotent junso.:tx 1134 against *le rÂ·amed insured, those who succeed to the to ttle Insumt undNr thd policy thall terrnmate, including any and disp05(Con 01 1111 appeall tnerefrom, adverse to me r imers,t of the named insumÂ¢ Dy operarion of law A liability or obilgaton to detend, prosecute, or continue any as insured. Â¢*Ungulshed 11Qm purchase neillcing, but not limited to, littgation, with ragard io the matter or matters requinng such (c) The Company snalÂ· 701 be liable for loss hars, distibutees, devIsees, survivors, personal representa- proct 01 loss or darnage 1rm, next of kln, or corporat, or fiduciary Succes,ors. In addilion, Ine Insur,d claimant may reasonably be damagatoanyinsured tor Ilabiltyvolurrorily assemed bi f reqwred to submit to exammanon linder oam by any insurt In setting any claim or sult wfnout the pflof wfftÂ· W j "105ufed claimanr' an insurec chuming loss or authortzed repr@bentative ot the Company and shall produce Consent Ol Ute Company. da:11,ge lor examination, Inspection and copying. al such reasonable 10. REDUCTION OF INSURANCE, REDUCTION OR (c) *nowledge m NuiownÂ» actual knowledge, not tkne; anc placK as may be desgnated by any authonzed TERMINATION OF LIABIUTY. coristtoÂ¢114 knowleÂ¢ge or nouce whloh may be Impuled to representative d #ie Company, att records, books, ludgers, an *sued by reason 01 the public records as deftned In this checks. correspondence and memoranda whether beating a All payments undsr thts policy.except payment5 na policy of any omer records which impart construc'tlve notice date before or afler Date of Policy which rusonably pertain of mattern atiactng the land. to the loss or damage. Further, if riquested by any @uotonzed 1Of COO, -atturniyl' fees and expenses, Shall (30006 1 (0) 'land': Ule land descnbete of referred to in repasentatlw Of th, Compiny, 1110 41*Ured clmant,hat] *nount of the insurance pro tantc. Schedule DA), and improvements affixed the,eto which by law grant its perrni,sion, in writing, for any adhorued repÂ· 11. LIANIUTY NONCUMULATIVE Constitut, real property The le,rn *pant does not include *17 resentadve of the CornDarly to examine, Inspect and copy ali Fope beyond ma Hnes of the area oescribed or referred records, books, ledgers, checks, correspondence and memÂ· It i; a],pfe,Ny understood that the Amount of to in Scn,Ouju (A). nor any Muht. Otle, Interoit estale or oranda in me custody of control of a third party, which surance unoer this policy shal be reduced by aily amount 1 642*ment r Routing Etlot5. (03{18, eve,kieS, 300Â¥9, lOt,81 reasonably Pertain to the loss of dan,Ue. All info,mabon Company may pay under any poky insuring a mortgage way, of wmerways, but nothing harln uhall modity of limit designated as roni'identjal by the insurk claimant provided whion excep000 18 taken m Schedule B or to wt,ict: 1 the extertt to which a right of acorn to and from the land is to the Company pursuant b t,i; Secoon Shal not be in sured has agreed, auumed, of taken subted, or water Imured by th,s polloy, dhclosedro others unless, In #,0 masonablo judgment 01 tile hereatter exBculed by an insured ind wnlch Is a cturgi Ce) "mertgage". mortgage, dead of trust, trust died, Company. it m necs:sary in the adminishtion 01 the claim. Or omer security *Ament ' Failure of the Insured clamant lo submit 101 examloaticin lien on the estate w interest <18scril>d ur retwed --0 m "publl~ reccrds'I: records establuhed under state under oath, producH olher reasonably requested ;mormation Schedule A, arld Vie amount so paid shad De deernec st@tutes at Date of Pdic, for the purpose of Impartlng of grant permission to secure reasonably necessary info,ma- payment under this policy to N bored owner. constructive notce 01 Inattors relatr, tO real property to tion from mim partes as requ,red in mis paragraon. unless 12. PAYMENT OF LOSS. purchasers tor vatua and without knowledge. With respect to prohibltoc by law or oovernmentat rogulavon, stiall Wrminute Sectk31 Ha)(iv) of 18,e EXCIUSIOnS From Coverage, "public any liabllity 01 810 Company underttlis poky a to that claim. (a) No payment 511211 De made Wl(!1OCt Moducing Â£ recorch shal| ajao incude environmental protection Ilona tlled policy lor ondorserrent of the paymem unlass the policy r h the records of the clerk of the United States district court 6. OFRONS TO PAY OR OTHERWISE SETTLE CLAIMS; been lost or destroy,d. in *Th cae proof of IC5s TERMINATION OF LIABIUTY. jof tle oistnd in which Ute land is located. destruction shatl be furnished to #e salislachon of i (91 unmafketioiltly of be tbet an alleged or in oase of a :aim under this oolloy, me Comoany shall 1301'Â©Brty. appan,nl malter affecong the Ule to 'De land, oot acluoed or have the tollowing aditoflal options; (b) When Ilabl#XY andlho extent of loss of damage t excepted from cov,rage, whlch woulc en(Itte a purchaser of been dellnitely fi*ed in accordance â€¢fi titase Con<1100215 9 the estate or Imefest deschbed in Schadute A to be raleased (a) 10 Pay or Tender Payment 01 the Amount of Stlpuladorts, the loss cr damage snall be payable within tfom Ihe obigabon to purchase by vtrtue of a contractual Insurance. 001*Don requÂ«tr:g the delivery of marketable tie. To Day or tendof paymon, r.f Ule amount of insurance days hereafter. undif #lis Policy th<Â»er wflh an,Â· costs, *Qorneys' lea *rld 13. SUBNOGATION UPON PAyMENT expenses IncurTE Gy th, Insund claimant. whlch wi, OR SETTUNENT 2. COMT:NUATION OF INSURANCE AFTER CONVEYANCE OF TITLE. authofized by Ine Company, up o the time of payment or tendor of paymer' and which,. uompany o obligded to Re covgrage N Ult: poky 511811 cortlnue in force as pAy, (a) Th. COâ€¢,41-y: Right â€¢1 Swogadon. Whwiever #le Comwy Shall have settÂ·ed and pal Upon b .icis4 by #% .,vafny 01 Oils 001(wi, *Il claim ur.dgr 0,4 policy. 311 right ot gubrogation shah' ves UT 0212 of Po~:Cy in 12Â¥0, of in ingumd only so long a the inuaed mt,uns an estatâ‚¬ Or interest in the land, or holds in liability 1'100041, Ons To hoWnsured unoer this policy der th, Company un@fixted by any act of th0 insurld ctiÂ·ma indaotecness secured:BVWWÂ¢~Dka* moneyin*1~*given IliNAWI#Ali~1~i30 ,niked. shall temÂ·Nnate, Including The Company shall te s:brocated lo and be ariented M Z661./LI./90 meg IIIIHH~'IMI'll'ill'11'Ell~Ill'll lilli 1 Â·De,il Oy. CONOOLIDATED MOLE), 310 034 0077, jep-23-98 10.00, Mage 9/9 bp 914 Injure j irâ€¢ arly trunRIA, Ar f,novawn= 01 â€¢ha ~-1,1~ 9-M '~Gy nor Deen Issux. Ir raque:10 Dy ne compary, I or interW. Thts 901]Cy shall not coMinue in force m tb~ To Pay tl OtheÂ·My Settle With Parbes Othar than ~Ed C]aima,11 shal trarisief to * Cornpany an fvlts Of any purCrIASef from the insur80 01 819'Mer {11 an estate nsured or With me Inded Claimant. an Â«lies agaan*t any parson or p,operly necessani in etest h the land of (Ii) an indeliednuss secur,J by a (i) to pay or 00101,4160 648 with other parties tof 0101# 10 /flÂ®t this light M sublogabort. The mured 'a5e money mortgaUE given 10 ttle inSUAO. or In me nam, 01 an Insured cllimant any claim Insured clar,* shail permll the Company to Sue, CM*Otise M against under hs policy. together with aM :O5tj, *torneys' 5,11* In the name ot Ule insured claimant and 10 UW me furne Noti * OF CLAIM TO BE GIVEN BY fwi and Â®,purts,6 incurid by 013 wisured claim** which of tho trauroc ctaimant i,1 an, transecoon or lk,Gabon INSURED CLAIMANT. weiv authofuted by *0 Compan, up to the limi of payment invoK,no Mis, nontâ€¢ or remedle. and which thi Company a obligated lo pay: or Na pay,nent on aÂ©cuur,loÂ¢ a cl@trn does not tulty cov.r Tha 196uf 84 Shal nouty trle Company promptly in (11} to pay or GthenÂ¥*Se seme wittl tr~e insured 918 105% of ine |I,Sured claimant. th, 00042* tral be 19 (i) In case of any Itigaoon as seÂ¢ lof m In Sâ€¢don 4 la) c,almant the loss or damage pro~dao Nor under ING pellÂ¢* subruged to tnese *t: and remedieS 0 Ute proporbon i (Ii) in caw knowledge shall come to an icsured togemer with any costs. attomer tees and expenses which thi Compallys pAYment bears b tile wrloka amount Indu o# any clen of tme or interest which li adverse to Ing,red by the Insu,ed claimant which were dtloliwd by the 01 the loss. be to the miate or inte,est, 35 Insured, and which might Company up to thu Â®le of paymunt pid which the Company H loss snould resuM tom any act of 710 Insur,4 8 10% or damage for *mich the Company may be liable ts obiluatad to pay. claimant, as 51*100 above. Mat act ,hall net void thu policy, rtue ct this policy, of (.Ii) 21 09& to the estate or irterest. Upon the Â®wrÂ¢150 by N Company of either of the but 010 Compaly, in #lat evont. sholl be requ,red to Ny only juretl ic ralcted as unfrarkgtab*. It prompt norkeshall options provided fof ir paragnolls (b)(1) Or (11), N ComÂ· thal gait of any losws Insured againGt by Dlls poicy wrich 0 :even to Ole Company, th:n as !0 the insurtd all tiabllity parrts obil#or)s to #le insured under this pollcy for the shall exceed 812 amount, if any lut to the Company Dy a Company shal tprminate with regsd to th, matt*r or clatmed loss or camage. omer man N payinerits required to reason of the impament by the InsurE clatrnar* 01 the 01 lor which prompt notice iS required; Provide(j, bo made, shidl terrninate, including any liability or obligallon CompanyÂ· s nght of suÂ©fogation :ver, mat failure to notlt, the Company *hall in no case to detenc, prosecute or ccnlnue any Ittigatlon (b) Thi Compann R)01,2, Againg: non#niwed dice the MontE d ary insured under tris policy unless 061... ;ompany snal be pretudiced by the tailure and then only 7. DETERMINRION, EXTENT OF LIABILITY 3 extent of me Preludice, AND COINSOMANCE- Tht Com,ny's floht of whogation aohinsr no# Insured obÂ»gors shall exal and shall inc'ude, winot,A It:nitabon, Ine Monm 01 me Insureo to inoemnt:165. guaantl08, DEFENSE AND PROSECUTION OF ACTIONS; This pohcy is @ contract of indemnity agamst actual other polldes of Insurance or bonds. noiwltristanchu any DUTY OF INSURED CUIIAANT TO COOPERATE. monewy loss cf damage sustainal w incurred Dy me insured Glalmant - has St#end loss Or dam@go Dy ru,on wrms or conditions contained k hose instruments which (3, Upon wiltton req Jo st by th, imured alÂ¢ Subtect to ot maaerÂ·5 inwred ag,Inwt byttos policy andonly Â©the *tEnt Drovide lor subrogamon *ts by reason 4 0,1.t poky bati,vij contained in Section 6 of these ConÂ¢Nlons and hw,In duscribod. 14. ARBITRATIOM. ilabOMS, tho Company at RE Own Cost and welout (a} The hably of th, Company under thapoicy shal aignaole delify. snail prov'de for tha Defense of an not exceed the least of. UNes* pohibited by Â®plicabe law, elther thu Co,â„¢ ed h Ittlgatlen * wttlch any thild party asserts a claim 0) th# Amount of Insurance slated In Schedule A; pacy or *2 insured r,w derrulnd 2*Ca501 oursuatd Do (he ne to the ttle or Interast 86 *sur,d, but only As to 010Â¥0 0Â¢ T-,08 Insurance Arbitrabon Rules 01 old Amencan Arte,foon d Â¢ aut.ci d acoon alleg,ng a defect lien or en- 00 the diffefence between be vabe of h Insured Ansoctabon. Altivabl, matters may include. but A not b,ance of other mattr insured against Dy thi& polky. The estate or Intest as Insured and the valw 01 rhi *,sured estate :mit,0 to, iny contoversy or claim bet-n the Carn~an, pay shall have th) ligtt 11) select Counsel of Its cholce or Ittlest subjact to the delect, Uen of encumbrance insurad and the insured a,16ing out of or rataeng to *IS p*/, iny iect to tile right M the insumd :o ooj@ct Icr reasonablo against by Mis policy. urvic, ot the Company tri connection wim its i,lutca or id) {0 repleS,nt UIC ifISJ,0,1 @S to *1090 Statad Call686 of (t) h the event me Amount of Insurance stated in the breach 01 a policy provision of other obilgagon. Aa n and Ynall not be liaoge tor a.ld wl~I not PM the lies of Sch,Cul, A at the Date of Poky 4 less thaR 80 percent of arbltrallÂ¢ maliers wharl the Amo,nt Ot kwilnce iS Dmer counsa. The Company wil not ga, any fees, costs the value of M insured estato cr Int,rest or th, lull $1 000 000 or lass st}all N arbitated al N t:]don 9% uitur wefises incur* by the Insurei: In :hij (letense of #low considenlion pald for th, Und, whichoe, 13 less, or if me Company or me insured. Al arbitrable materS when N ,es 01 acton whioh allege mimers not insured against by sibsoquer:1 20 the 0818 01 POtiCY W! Imp,Ovement IS efeCt,0 Amount 01 insurance B in exceis of 11,000,000 614 N Polry on tne land which ingeas# the value of the Insured estate *trated omy when egrad to h Dom 70 Company and 8,9 (b) IN Company shall liaÂ¥8 918 lignt * U OWn Cost or interest by ot least 20 percent over tle Amount ot insured. Arbitralon purguarl to Ous polity and undef the 5ttute and pfotecute any action or procemding or to do Insurance suted In Schedulâ€¢ A, then his Policy is subject to Rules In Act on Ule clate the damand tor artaratto,16 maae 001*t *Ct wtHur In fts opinion may be necessarÂ¥ Of the following or, al the option ot lh, insut. the Rues In Act at D,ts of ratle Zo establish the mt, to the eitate 0,- interest, as 0) whum no subsequecit improvement has been Policy snail be binding Upoo the parbes. The award may red, of t!] prtient 1; reduce loss or damago to tile made, as to arry pal tial loss, the Company shall xly pay the induds attomsy:' fees only ff #te laws of me Glaw In wh,Ch red. The Company may take any appropeiate aaon under *55 pro rata Irt N propor'bon thal the Amoun: of Insurance #le land 1, locateÂ£ pemvt a courl to award attorneys' 11*ls to termf of this pokey, whemer or not it Shall be liable at Date 01 Policy boars to Te total valut, 01 the (nsured estate a prevalljng parly. Judgment Won ne award r.rid.red by the Unde. and shall not mereby concede liability or walve or Intorest al Date 01 Pacy Of (11) where a subs,quent Albltr*r(s) may be ette<00 1,1 any court having ~u,Isdkclon Prowsion 01 MIS pOlioy It the Company shal| 0*fC,SO its improvement has bien made, aa to any C*ftial loss, ihe mered. h uncer 011; paragraph, n shall do so diligently. Compe shall only pay the less prorats in the propafoon that The tar, el the sgus of ma lay,d shad apply to all (C) WI,840,8( trle Company :hall have bmught kn 120 percent of tho Amounr or Insuranre :tated in Schedute arbltraÂ¢Jon und,r th. 7,92 Insurance Afbftra*041 RuÂ·*8 7 or irterposed N ceferlle as faquired of permitted by me A bear; to 0,0 sum of the Amount of Insurance stated In A copy of :118 Aulus may be ootained kom the 45Ions 01 MIS POUCy, fle Company may pursue ark Schedule A and thu imcunt expended for the imorovement Cor,ny upon rewest *008 to tind oetermination by a court of competent The provolorts 01 this patagiaph shall not â€¢004 to dotion and dxpfeusly resorves the right in ils sole costs, anomoys' fees and expenses tor wtwen the Company 15. LIMILITY LIMITED TO THIS POLICY; retion, to oppeal #DÂ·Â·n any adverse judgm~nt or ordor. is hatle under this policy. and Shall only apply to that portion POUCY ENTIRE CONTRACT. (d) In ail cals wtjam Mis policy pemlks or requires 01 am 1.058 which exseds, m ttle agoregate, 10 percent 01 Comian, to orosecuts or provide for trw Omense of any me Amount of Insurancs stated In Sch.dule A. (a) This Dollcy togelhtÂ¥ with al endO(Sam,116. 112,4,0 :n or procteding, me Insufed sh@t secint to the (c) 'The Company wil pay only those costs, attorneys' attacheo hereto by the Company Is the Are policy and Tany me r.gMt to 30 pfosewto or prcvide oeter,se in the fees and exper,ses Incutral tr, accordance with Section 4 of contract between the insur,c 3nd the Company h Imefpfel )n or procceding, and gil 8008&15 therein. and permll the these Condmons and Sjoulations. Ing any provision 01 th,3 policy, INs policy :halt be con:gued a a whole. ipw'y F.} use, at its opllon. thu name 01 the insured tor Mis ose. Whenever requated by the Compaty. the nsurod, 8. APPORMONMENT. (b) Any claim of loss or damage, Wrlather Of AM he Company's Â®pang, shall give the CompanÂ¥ ail Oased on negjigence. and which anses oul of the statjs ot :orkit>le did 4) wi ariy action 04 proOFÂ«14 5ecunng 11 the land desortbld in Schedule Â£A)(C) consists of t.o the title to the GUe or Int@(ast covered hereby of by anÂ¥ ence. obtatning i.imasses, prosecuting of defending the of more parca whichare r,of used as a SIng!8 stte. and a loss action assertng Such cialm, shaN De mitr:cmd Ic Mis policy. )0 or 0:Keeding. or efteng wttement, and (14 in any Is established afleonng one or more d lhe parcels but notall, (c) No amendment of or encorsuTIerit :o mis policy 1 laâ€¢Ait act which in Ute optnion d #,0 Company IlurÂ¢ W the 1033 shall be computed &11(1 8011100 0,1 a pro fata basis :s can M made acept by awr,Uno enckorsed Mafeon OGE[oched $33â€¢17 01 cesimole to establish be ttle Q the estate or tf the Amount of Insurance unaor #119 policy was divided pro 11,reto skgned by eltr>m he Prli~ideli a VIce PfaiNg, N Â·Â·est b Insuied. It the Company is prejudlced by #18 ta lure rata as to me v:Alus on Date of Polky of each separate parcd Secrewy, an Aaistant Secretary. or valldilitag oftcer or 118 insured m furnish the required coopecation, the to the whol, 8%<lusive 01 any imwovemerits made sub authofuge sionatory 01 the Company. 1palÂ·is Obdgauons k} the insur,0 undir the policy shall *equeâ€¢vt to Dats ot Poicy. Unless a liablilly or valui has 'unata, Incluglag any EaNky of obilga)on to dot,04, ctnerwije been agreed upon an b each parcel by [hu 16. SEVEIVWUrr. Fecutc, 01 conlillviany lit,gatkn, *181 cegart to lh, ma(14:f Company and the Unsured at the tjme of 018 issuance 01 fl,8 FlatterS t*Qutfittl~ SuCh COOpe'*tion, pohcy and shown by an unxes; Statwnent or by an int mi ev,t~ any provision et th, 001:cy is had invalid endorsemont attached to tlils polky. M unentcrcuble under applicaule law, th, policy shall be PROOF OF LOSS OR DANAGE. deemed noi m Incluou Out provision and all ootul provistons 9. LIMCTATKIN Of LIABILint shall remain n full torce and aftect 1,1 udddion to and Itter 010 noocA reqjired unctor 902 3 01 Olest Cor,aljorts and Slipulabons had, b,ln (a) If the Company estabitshes the tiOe, or removes the 17 NOnCES, WHERE SENT. /&090 Me Com#any, a prool of loss or damage signed and djleged detect, lien or encurnbrance, or curss N lack of a irn X: Oy the ilibufud GlitinurIt illall De furnished to tile right of access to or from the land or cuies h claim ol All rlotices roqulrod to be given tte Cos,4,any and *ny apany within 90 days at* th, in,wred ctaimant shall unmarketability of Me. d as insured. in a reasonably dulgent statem,nt in writne required to be fumished the Comp,fly wtaln tio facts 91Â¥Ing 11&0 to the loss or damage The manner by any mÂ¢etod, including litigation and the comÂ®Â· shall Include the numyr of thâ€¢$ DollÂ¢y and shall b, aldrussad 31 of loss of damage stialt Cescribe me defoe! h or lien tion of any appeal# Uter,trom, R Shall hm tully pÂ¢rtormid 5 ic the Company at 114 East Flt#l Street Santa Ana, Catornia in: u,nbrance OIl tne litle, 0, 0810, mattor in,wed awlst obligatlons with respect 40 nat matter and shall not W tiabls 92701, or b the office whtn issued mis poitcy .. EXHIBIT D-1 2 SINGL: - CAA.41'VR~-42Â· - I rl â€¢ 4 Â·0 -; vv. L-~ ~/F \ Â£ i \ \ \ 11 \ I /--h J ./ /1 \ 1 ./ N \ 1 I /// \ 1 / i , i 1 1 1 1/, t 1 1 11 r 1 1 /\\ 1 lif \ 4*\\ \-J L(21)~ \ \ 9,0/ \ / </'Ch . <CAAÂ» 1 1 1\6+ A /4 \1 f =b 4 19) 5 1 \ r\ \25/ 1 Â· \ 1 ly).. 9 2 :\ \ 'l ./ 1 / I--h \ 1 1- 45/ Nk \C:25/,3 ,\ V . j ~~A ~ V i 1/, Sj 9--47 2 C C {LU G J i ./- r ~ Â· L-- 7 ---n a * / f / n \\ 44 f E t*5<7 % i * k J ) ~(293 JI Vii 1. C lf\> \0///0-7 4% j--1 \ \ -1 V A \ \ L.-- -- - 90 , \---1 1\/ ,\ 1 1 1 \ TMCAL DEVELOrMENT- ENVELCFE 1 1/ / TrrICAL DUILDiNG ENVELOPE- 1 -TYP]CAL 1Â£37 UNE 1 \\ ...... I \ 1 \ 1 Â« 11 1 1 /' 1 \ 1/ I *. 1 1 1 --- ~1\\ 3 1/ 1 -// -\ 1 - 0-CE ....:IC-,Inâ„¢ I.*râ€¢,iltommICM'.It//:cn.* AO#ne Surveys, k. **myre Â·lin'I--,-Â·-" ,â€¢y~ â€ž-0â€žU' f,â€¢Cl~~4~f #.'% , 0 --' -Â»Â¥ z"f ':'el Â»:~â‚¬ UP~ rm, eor-cl . Â·â€¢i â€¢,i,y b, ceâ€¢-,eced Fâ€¢ + â€¢ Â·â€¢- r=,1 Â·Â·e Â·9 0- c. creÂ·Â·nie SPÂ»- ,~1.0- Po,t Mfice Sm 17:30 Aspen, Co:ctodo 81511 303 97523418 Ff,OJ Jan 12 99 03:0Op JAilfret, B. Davis (i~ 544-5116 P.2 13%1,\ i B IT G OPERATING AGREEMENT OF LOT 36 MAROON CREEK CLUB, LLC A COLORADO LIMITED LIABILITY COMPANY THIS AGREEMENT is made and entered into effective this 6 /~Th 9, 1998 by and between LOT 36 MAROON CREEK CLUB, LLC, a Colorado limited lidbility company (the Company) and RICHARD A. WAX (Wax) and Jack DEBOER (DeBoer) ), hereinafter referred to as Members. WITNESSETH: IT IS AGREED, in consideration of the promises, covenants, performance, and mutual consideration herein as follows: I FORMATION OF COMPANY 1.1 Articles of Organization. This Company is organized pursuant to the provisions of the Limited Liability Company Laws of the State of Colorado and pursuant to Articles of Organization filed with the Secretary of State on The rights and obligations of the Company and the Members shall be as provided in the Articles of Organization and this Operating Agreement. The Company is formed for the single purpose of development for profit of Lot 36, Maroon Creek Club, City of Aspen, County of Pitkin, State of Colorado (the Property). The Property is presently owned by Tiehack Development Corporation and is the subject of an option for the benefit of the Company. 1.2 Conflict between Articles of Organization and this Agreement. If there is any conflict between the provisions of the Articles of Organization and this Operating Agreement, the terms of this Operating Agreement shall control. II CAPITAL CONTRIBUTIONS 2.1 Cantributiens. The capital contributions to be made by the Members and with which the Company shall begin business are as follows: Jan 12 99 03:OOP 3~ret, B. Davis (<~ 544-5116 P.3 Member Name Contribution Richard A. Wax $37,500.00USD Jack DeBoer $37,500.00USD 2.2 Additional Capital Contributions. In the event that the cash funds of the Company are insufficient to meet its operating expenses or to finance new investments deemed appropriate to the scope and purpose of the Company as determined by the Managers, the Members shall make additional capital contributions, in the proportion of their capital contribution. The amount of the additional capital required by the Company and the period during which such additional capital shall be retained by the Company shall be determined by the Managers. Any funds for the development of the Property that are needed prior to closing of a construction loan shall be advanced by the Members in the proportion of their capital contributions. It is agreed that Wax and DeBoer shall obtain a construction loan in an amount sufficient to cover development of the entire project and that Wax and DeBoer personally shall be the obligors of said construction loan. All costs associated with the construction of the residence at Lot 36, Maroon Creek Club will be paid by the construction loan including but not limited to; payroll taxes, general liability insurance, workers compensation insurance, payroll expenses, homeowners association dues, design review fees, permit fees, and marketing costs. Provided, however, and notwithstanding the foregoing, that once both Managers have unanimously adopted a budget (the amended final budget is attached hereto and incorporated herein as Exhibit A) for the development of the Propeny, if the Managing Manager exceeds such budget by more than ten (10%) percent without the prior written consent of the Vice-Managing Manager, the Managing Manager shall pay all excess costs personally and shall not be reimbursed for such payments until after the house has been sold and the escrow on the house has been closed. DeBoer and Wax each agree, and notwithstanding other provisions in this paragraph 2.2, that in the event that, with the consent of both parties, the expenses exceed the funds obtained from the $1,850,000.00 development and construction loan, DeBoer and Wax shall fund one-half (1/2) of the difference in cash unless the parties are able to otherwise borrow the money needed to pay the additional expenses. 2.3 Loans. In lieu of voting an additional assessment of capital to meet operating expenses or to finance new investments, the Company may, as determined by the Managers, borrow money from one or any of the Managers, Members, or third persons. In the event thal a loan agreement is negotiated with a Manager or Member, he or she shall be entitled to receive interest at a rate and upon such terms to be determined by the Managers, excluding the Manager making said loan, if applicable, and said loan shall be repaid to the Manager or Member, with unpaid interest, if any, as soon as the affairs of the Company will permit. The loan shall be evidenced by a promissory note obligating the assets of the Company. Such interest and repayment of the amounts so loaned are to be entitled to priority of payment over the division and distribution of capital contributions and profit among Members. 2 Jan 12 99 03:0Op .1~~rey B. Davis { FlaN 544-5116 P.4 . 2.4 Start Up Expenses. As outlined in paragraph 2.1, both Wax and DeBoer shall contribute such funds to start up the business. These funds are to cover the costs of starting the construction of the house on Lot 36 and shall include but not limited to soils reports, surveys, insurance, payroll taxes, Maroon Creek SARC Design Review fees, architectural and structural design fees and deposits. These Costs shall be borne equally by Wax and DeBoer from their own funds until such time as a construction loan can be obtained. Upon the establishment of the constructionÂ·loan all of the costs borne equally by Wax and DeBoer shall be reimbursed without interest. 2.5 Soils Conditions lf in the event that the property at Lot 36, Maroon Creek Club has adverse or inappropriate soils conditions for the efficient or reasonable construction of a residence of the merits Richard Wax is accustomed to building, than Wax or DeBoer shall have the right to cancel this contract or renegotiate the price of which the land is being brought to the Lot 36 Maroon Creek Club, LLC. As such, if the agreement becomes canceled all monies paid to date by Richard Wax as start up money for the business, will be rcimbursed to Richard Wax by THIS SPACE LEFT BLANK 3 Jan 12 99 03:Olp .1~reg B. Davis (alial 544-5116 p.5 .. DeBoer. All reports and plans generated by the start up capital of the Lot 36 Maroon Creek Club, LLC will become the sole property of DeBoer. 2.6 Merchantibility If in the event that the Lot 36 project is completed to the point where there is merchantibility of a house, that is completed and approved plans, surveys, soils reports, structural engineering and DeBoer makes a decision to not build said house, Richard Wax is entitled to be paid a fee for the services rendered to establish such merchantibility in the amount of $50,000.00USD. This fee for services rendered of $50,000.00USD is due and payable to Wax by DeBoer within 90 (ninety) days of submittal of completed work to DeBoer. If DeBoer makes the decision to not begin construction of said house after work has begun on the above items of paragraph 2.6, than DeBoer shall pay to Wax a pro rated percentage of work completed based on a final completed work value of $50,000.00USD. 2.7 Implementation Upon the implementation of this agreement, DeBoer must make a decision to begin construction of the house at Lot 36, Maroon Creek Club. If the decision is made to not begin construction of the house on Lot 36, Maroon Creek Club, than DeBoer will have to pay for the start up costs of the business personally and solely and the portions of the provisions of paragraph 2.2 will not be valid. If the decision is made to start construction, than the start up costs of the business will be borne equally by Wax and DeBoer per the provisions of paragraph 2.2 of this agreement. If the decision is made to begin construction, construction will begin as soon as possible. Decision to begin construction as soon as possible DeBoer Decision to not begin construction DeBoer 4 Jan 12 99 03:Olp JAilrreg B. Davis (9.1. 544-5116 p.6 m MEMBERS' ACCOUNTS; ALLOCATION OF PROFIT AND LOSS; DISTRIBUTIONS 3.1 Capital-Accounts. A separate capital account shall be maintained for each Member. The capital accounts of each Member shall initially reflect the amounts specified in Section 2.1, and, if a Member has merely promised to contribute the amount specified in Section 2.1, the Company shall maintain a corresponding subscription receivable on behalf of that Member. No Member shall withdraw any part of h is or her capital account, except upon the approval of the Managers. If the capital account of a Member becomes impaired, or if he or she withdraws said capital account with approval of the Managers, his or her share of subsequent Company profits shall be credited first to his or her capital account until that account has been restored, before such profits are credited To his or her income account. If, during the period when a Member's capital account is impaired or he or she has withdrawn funds therefrom as hereinbefore provided, an additional contribution is required of the Members for the purposes specified in Section 2.2, then the Member with such withdrawn or impaired capital account shall be required to contribute his or her proportionate share of the additional capital contribution and the deficiency then existing in his or her gpital account, so as to return the capital account to the same proportion existing as of the date of the additional contribution. No interest shall be paid on any capital contributions to the Company. 3.2 Income Account. A separate income account shall be maintained for each Member. Company profits, losses, gains, deductions, and credits shall be charged or credited to the separate income accounts annually unless a Member has no credit balance in his or her income account, in which event losses shall be charged to his or her capital account, except as provided in Section 3.1. The profits, losses, gains, deductions, and credits of the Company shall be distributed or charged to the Members as provided in Section 3.3. No interest shall be paid on any credit balance in an income account. 3.3 Allocations among Members. The profits and gains of the Company from development of the Property or from any other sources shall be divided and the losses, deductions, and credits of the Company shall be borne in the following proportions provided that no profits are to be distributed (though they will be allocated for book and tax purposes) until the land is purchased and paid; and the amount payable under 3.3B is only payable after the land and building are sold, and all other obligations are paid. Profit is understood to be net of all planning, construction, operating and selling costs: A. Wax and DeBoer shall divide the profits 50% to Wax and 50% to DeBoer ~ ( in equal shares) 5 Jan 12 99 03:02p -1-2frew B. Davis (9/li) 544-5116 p.7 .. B. If there is a cost overrun greater than 10% of the budget per paragraph 2.2 than this amount will first be reimbursed to Wax before the profits are divided. All parties hereto hereby agree that the Property will not be sold for less than a total $1,000,000.00 profit without the prior written coment of DeBoer and Wax for one year after the Certificate of Occupancy has been issued. 3,4 Disproportionate Capital Accounts. No interest or additional allocation profits, losses, gains, deductions, and credits shall inure to any Member by reason of his or her capital account being proportionately in excess of the capital accounts of the other Members. 3.5 Distribution of Assets. 3.5.1 All distributions of assets of the Company, including cash, shall be made in the same allocations among Members as described in Section 3.3 providing that no distributions will be made until the land is paid for and the property is sold. 3.5.2 The Managers shall determine, in their discretion, whether distributions of assets of the Company should be made to the Members; provided, however, that no distribution of assets may be made to a Member i f, after giving effect to the distribution, alltiabilities of the Company, other than liabilities to Members on account of their capital and income accounts, would exceed the fair value of the Company assets. 3,5.3 A Member has no right to demand and receive any distribution from the Company in any form other than cash. IN RULES RELATING TO THE MEMBERS 4.1 Admission of New Members. Additional Members may be admitted upon the unanimous written consent of all Members. 4.2 Voting of Members. Each Member's vote shall be proportionate to his or her capital account ("Member's Voting Interest"). A member may vote in person or by proxy at any meeting of Members. All decisions of the Members shall be made by a majority of the Members Voting Interests at a properly called meeting of the Members at which a quorum is present, or by unanimous written consent of the Members. 6 Jan 12 99 03:02p Jillfrew B. Davis (9~] 544-5116 p.8 I. I. 4.3 Meetings of Members. 4.3.1 Meetings of Members may be held at such time and place, either within or without the State of Colorado, as may be determined by the Managers or the person or persons calling the meeting. 4.3.2 An annual meeting of the Members shall be held on the first Tuesday of April in each year. 4.3.3 Special meeting of the Members may be called by the Managers or by at least twenty-five percent (25 %) of all of the Members entitled to vote at the meeting. 4.3.4 Written notice stating the place, day, and hour of the meeting and, in the case of a special meeting, the purpose for which the meeting is called, shall be delivered not less than ten (10) days nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the Managers or any other person calling the meeting, to each Member of record entitled to vote at such meeting. A waiver of notice in writing, signed by the Member before, at, or after the time of the meeting stated in the notice shall be equivalent to the giving of such notice. 4.3.5 By attending a meeting, a Member waives objection to the lack of notice or defective notice unless the Member, at the beginning of the meeting, objects to the holding of the meeting or the transacting of business at the meeting. A Member who attends a meeting also waives objection to consideration at such meeting of a particular matter not within the purpose described in the notice unless the Member objects to considering the matter when it is presented. 4.4 Quorum and Adjournment. Seventy-five percent of the Members' Interests entitled to vote shall constitute a quorum at the meeting of Members. If a quorum is not represented at any meeting of the Members, such meeting may be adjourned for a period not to exceed sixty (60) days at any one adjournment; provided, however, that if the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each Member entitled to vote at the meeting. If a quorum is not so attained at any meeting, then the Managers shall act on behalf of the Members at any such meeting. 4.5 Member Voting. Members shall vote annually to elect the Manager and Vice Manager as provided in section 5.3.2 and shall vote on such other matters as are reserved for decision by the members. 7 Jan 12 99 03:03p -rlmf rew B. Davis (lk] 544-5116 P.9 V RULES RELATING TO MANAGERS 5.1 General Powers. Management and the conduct of the business of the Company shall be vested in the Managers. The Managers may adopt resolutions to govern their activities and the manner in which they shall perform their duties to the Company. 5.2 Qualifications of Managers. Managers shall be natural persons eighteen (18) years of age or older. 5.3 Number, Election. and Term. 5.3.1 The number of Managers shall be two and such initial Managers shall be Wax and DeBoer. 5.3.2 Each Manager shall hold office for one year or until his or her death, incapacity or resignation, whichever first occurs. 5.4 Meetings and Voting. 5.4.1 Meetings of the Managers may be held at such time and place as the Managers by resolution shall determine. 5.4.2 Written notice of meetings of the Managers shall be delivered at least twenty- four (24) hours before the meeting personally, by telecopier, or by mail actually delivered to the Manager within the twenty-four (24) hour period. A waiver of notice in writing, signed by the Manager before, at, or after the time of the meeting stated in the notice, shall be equivalent to the giving of such notice. 5.4.3 By attending a meeting, a Manager waives objection to the lack of notice or defective notice unless, at the beginning of the meeting, the Manager objects to the holding of the meeting or the transacting of business at the meeting. 5.4.4 A majority of the Managers entitled to vote shall constitute a quorum at the meeting of Managers. Each Manager and Vice Manager shall have only one vote. In the case of a stalemate between Managers, the Members shall decide the disputed matter. 5.4.5 All decisions of the Managers shall be made by a majority vote of the Managers at a properly called meeting of the Managers at which a quorum is present, or by unanimous written consent of the Managers. 5.5 Duties of Managers. 8 Jan 12 99 03:04p J,tfretj B. Davis (~~] 544-5116 P. 10 5.5.1 The Managers shall have the duties and responsibilities as described in the Colorado Limited Liability Company Act, as amended from time to time. 5.5,2 The Managers, or any one of the Managers as designated by resolution of the Managers, shall execute any instruments or documents providing for the acquisition, mortgage, or disposition of the property of the Company. 5.5.3 Any debt contracted or liability incurred by the Company shall be authorized only by a resolution of the Managers, and any instruments or documents required to be executed by the Company shall be signed by the Managers or any one of the Managers as - designated by resolution of the Managers. 5.5.4 The Managers may designate any one of the Managers or delegate an employee or agent to be responsible for the daily and continuing operations of the business affairs of the Company. All decisions affecting the policy and management of the Company, including the control, employment, compensation, and discharge of employees; the employment of contractors and subcontractors; and the control and operation of the premises and property, including the improvement, rental, lease, maintenance, and all other matters pertaining to the operation of the property of the business shall be made by the Managers. 5.5.5 Any Manager may, by appropriate resolution duly adopted by the Managers, draw checks upon the bank accounts of the Company and may make, deliver, accept, or endorse any commercial paper in connection with the business affairs of the Company. 5.5.6 Wax shall be the Managing Manager and Jack DeBoer shall be the Vice- Managing Manager. The Managers, together, shall make all policy decisions and all decisions as to the sale or encumbrance of Company property and the borrowing of money by the Company; and the Managing Manager shall have the day-to-day responsibility for the conduct of the Company's business. Once the Managers have agreed to the conceptual design of the residence to be built on the Property and the budget therefore, the Managing Manager shall be responsible for making the day-to-day decisions in carrying out the development of the Property. The Managing Manager shall be required to submit to the Vice-Managing Manager on a monthly basis, full financial reporting as well as reporting as to status of the development, which reporting shall also compare expenses incurred versus budget. 5.5.7 All expenses of the development will be paid by submission of a draw request by the Managing Manager to the bank making the construction loan. All payment requests will be faxed to DeBoer or his designee for approval prior to payment. All checks must be signed by either the Managing Manager or his assistant, Jeff Davis. All payments by Managing Manager to contractor, subcontractors, laborers, suppliers and materialmen, shall require the obtaining by Managing Manager of lien waivers and Managing Manager 9 Jan 12 99 03:05p Jgarrew B. Davis (9~-1 544-5116 p.11 .. shall certify monthly to Vice-Managing Manager that lien waivers are current with regard to all sums paid to that date. 5.5.8 Managing Manager acknowledges that the DeBoer is participating in this development with the Managing Manager based upon Managing Manager's reputation and based upon the representation that Managing Manager shall personally be involved at all times in this development project. In the event that Managing Manager is unable to personally continue with this development project at any time, e.g., death, disability, disappearance, etc., then Vice-Managing Manager shall have the right to assume all authority and to take whatever steps Vice-Managing Manager deems necessary in order to complete the development project. Upon such completion by Vice-Managing Manager, he shall deduct from Managing Manager's share of any distributions, all costs incurred in Vice-Managing Manager's judgment in order to complete the development project prior to Wax or his estate being entitled to any distributions. In the event of Managing Manager' s such death, disability, disappearance, etc., Vice-Managing Manager shall consider continuing the project utilizing Managing Manager's assistant, Jeff Davis, but the decision as to how to complete the project shall be in Vice-Managing Manager's sole discretion. 5.5.9 It is agreed that the plan for marketing the project (unless the Managers otherwise agree) would be that the Property would be listed with Advanced Property Services at a 6% commission (3% to the listing office and 3% to the selling office). Of any real estate commissions earned by Advanced Property Services, 25 % of that commission would be payable to Advanced Property Services broker, Benton Smith, and 75 % of that commission would be split as follows: 50% thereof to Managing Manager's assistant, Jeff Davis, and 50% thereof to Wax. Marketing expenses shall be advanced by the Company and reimbursed to the Company before the 3 % listing commission is distributed. 5.5.10 The cost of the salary of the Managing Manager's assistant, Jeff Davis, shall be an expense of the development project at the rate of $75,000 per annum. Richard Wax & Associates may deem at their own will the need for an assistant superintendent. If such a superintendent is hired, that person will be an expense to the project at a rate of $50,000.00 per annum. The cost of the salary of Jeff Davis and or a assistant superintendent will be paid directly to Richard Wax & Associates via a check drawn on the construction loan account on a monthly basis. Richard Wax & Associates will not bill an assistant to the project until the second house project is begun. Neither Managing Manager nor Vice-Managing Manager shall be compensated for their duties. 5.6 Devotion to Duty. At all times during the term of a Manager, the Manager shall give reasonable time, attention, and attendance to, and use reasonable efforts in the business of the Company; and shall, with reasonable skill and power, exert himself or herself for the joint interest, benefit, and advantage of said Company; and shall truly and diligently pursue the Company objectives. Provided, however, that all Members acknowledge that acting as Manager is not a full 10 Jan 12 99 03:06p J-Â§â€¢Prew B. Davis (92.] 544-5116 p.12 .. time job and that the Managers (as well as the Members) as entitled to pursue other endeavors, including endeavors which might be in competition or conflict with the Company. 5.7 Indemnification. Managers, employees, and agents of the Company shall be entitled to be indemnified by the Company to the extent provided in the Colorado Limited I,iability Company Act, as amended from time to time, and shall be entitled to the advance of expenses, including attorneys' fees, in the defense or prosecution of a claim against him or her in the capacity of Manager, employee, or agent. 5.8 Day to Day Interactions As has been described in paragraph 5.6, the Managing Manager shall give reasonable time, attention and attendance to the project and use reasonable efforts in the business of the Company. Deboer shall have reasonable concern about the business of the company but shall not have regular day to day interactions with regards to the construction of the home. VI BOOKS 6.1 Location of Records. Tile books of the Company shall be maintained at the principal office of the Company or at such other place as the Managers by vote or consent shall designate. 6.2 Access to Records and Accounting. Each Member shall at all times have access to the books and records of the Company for inspection and copying. Each member shall also be entitled: 6.2.1 To obtain from the Managers upon reasonable demand for any purpose such information reasonably related to the Member's Membership Interest in the Company; 6,2.2 To have true and full information regarding the state of the business and financial condition and any other information regarding the affairs of the Company; 6.2.3 To have a copy of the Company's federal, state, and local income tax returns for each year promptly after they are available to the Company; and 6.2.4 To have a formal accounting of the Company affairs whenever circumstances render an accounting just and reasonable. 6.3 Accounting Rules. The books shall be maintained on a cash basis. The fiscal year of the Company shall be the calendar year. Allocations to income accounts shall be made annually. The books shall be closed and balanced at the end of each calendar year and, if an audit is determined to be necessary by vote or consent of the Managers, it shall be made as of the closing 11 Jan 12 99 03:07p .1-~frew B. Davis (~ 544-5116 p. 13 date. The Managers may authorize the preparation of year-end profit-and-loss statements, balance sheet, and tax returns by a public accountant. VII DISSOLUTION 7.1 Causes of Dissolution. The Company shall be dissolved upon the occurrence of any of the following events: 7.1.1 At any time by unanimous agreement of the Members; 7.1.2 Upon the expiration of the period fixed for the duration of the Company in its Articles of Organization and if not set forth therein, thiny (30) years from the date hereof; 7.1.3 Upon the death, retirement, resignation, expulsion, bankruptcy, Â·or dissolution of a member. 7.1.4 Upon the sale ofthe Property. i 7.2 Continuation of Business. Notwithstanding a dissolution of the Company under Section 7.1.3., the Members may elect to continue the business of the Company, so long as the remaining Members unanimously consent to do so, by purchasing the deceased, retired, resigned, expelled, or bankrupt Member's ("Withdrawn Member") Membership Interest. , 7.3 Purchase of Withdrawn Member's Membership Interest. 7.3.1 If the Members elect to continue the business under Section 7.2, the purchase price of the Withdrawn Member' s Membership Interest shall be fair market value. The fair market value of a Member's Interest to be purchased pursuant to this Section shall be determined by agreement between the Withdrawn Member (or of his successor or personal representative, as the case may be) and the Company. For this purpose, the fair market value of the Withdrawn Member's Membership Interest shall be computed as the greater of: (i) the Company's book value as reflected on its most recently completed annual financial statement, multiplied by the Withdrawn Member's proportionate Membership Interest as of the date of the occurrence of the Withdrawing Event; or (ii) the amount which could reasonably be expected to be realized by such Member upon the sale of the Company Property in the ordinary course of business at the date of the occurrence of the Withdrawing Event. If the Withdrawn Member (or his successor or personal representative, as the case may be) and the Company cannot agree upon the fair market value of such Membership Interest within sixty (60) days, the fair market value thereof shall be determined by appraisal, the Company and the Withdrawn Member (or his successor or personal 12 Jan 12 99 03:07p Jadifretj B. Davis (92~1 544-5116 p.14 . representative) each to choose one appraiser and the two appraisers so chosen to choose a third appraiser. The decision of a majority of the appraisers as to the fair market value of such Membership Interest shall be final and binding and may be enforced by legal proceedings. The Withdrawn Member (or his successor or personal representative) and the Company shall each compensate the appraiser appointed by it and the compensation of the third appraiser shall be borne equally by such parties. If the Company or the Withdrawn Member (or his successor or personal representative) fails to choose an appraiser, or if either party's chosen appraiser fails to perform in the manner and within the time frames provided in this paragraph, then the decision as to the fair market value of such Membership Interest shall be determined solely by the arbitrator chosen by the other party. - The purchase price is subject to setoff for any damages incurred as the result of the Withdrawn Member's actions, and nothing in this paragraph is intended to impair the Company's right to recover damages for the Withdrawn Member's wrongful dissolution of the Company by reason of the Withdrawn Member's expulsion, retirement, resignation, or bankruptcy. 7.3.2 The purchase price determined under Section 7.3.1 shall be paid to the Withdrawn Member in cash. 7.3.3 The Effective Date shall be the date of death of adeceased Member; the date personal notice is received, or the date the certified mail is postmarked, in the case of a retired, resigned, or expelled Member; or the date the notice is delivered to the Withdrawn Member or to the place of business of the Company, in case of bankruptcy of a Member. 7.3.4 Notwithstanding the foregoing, If the withdrawn member is Jack P. DeBoer, and the withdrawal arises as a result of his death, than the executor of the estate of Jack P. DeBoer, his personal representative, or trustee, as the case may be, may elect to remain as a Member as provided in Section 11.2 hereof and the interest shall not be purchased but transferred to the Estate, personal representative or trustee as the case may be. 7.4 Â· Distribution of Assets If Business Is Not Continued. In the event of dissolution of the Company and if the Members do not elect to or are unable to continue the business of the Company under Section 7.3, the Managers shall proceed with reasonable prompmess to sell the real and personal property owned by the Company and to liquidate the business of the Company. Upon dissolution, the assets of the Company business shall be used and distributed in the following order: 7.4.1 Any liabilities and liquidating expenses of the Company will first be paid; (including the Option Contract on the land.) 7.4.2 The reasonable compensation and expenses of the Managers in liquidation shall be paid; 13 Jan 12 99 03:08p JgÂ£freg B. Davis (9~~ 544-5116 p. 15 .. 7.4.3 The amount remaining shall be paid to and divided among the Members in accordance with their capital accounts. vm EXPULSION OF A MEMBER 8.1 Causes of Expulsion. A Member shall be expelled from the Company upon the occurrence of any of the following events: 8.1.1 If a Member shall violate any of the provisions of this Agreement; or 8.1.2 If a Member's Membership Interest shall be subject to a charging order or tax lien, which is not dismissed or resolved to the satisfaction of the Managers of the Company within thirty (30) days after assessment or attachment. 8.2 Notice of Expulsion. Upon the occurrence of an event described in Section 8.1, written notice of expulsion shall be given to the violating Member either by serving the same by personal delivery or by mailing the same by certified mail to his or her last known place of residence, as shown on the books of said Company. Upon the receipt of personal notice, or the date of the postmark for certified mail, the violating Member shall be considered expelled, and shall have no further rights as a Member of the Company, except to receive the amounts to which he or she is entitled under Sections 7.3 and 7.4. IX BANKRUPTCY OF A MEMBER 9.1 Bankruptcy Defined. A Member shall be considered bankrupt if the Member files a petition for bankruptcy [or an involuntary petition in bankruptcy is filed against the Member and the petition is not dismissed within sixty (60) days] or makes an assignment for the benefit of creditors or otherwise takes any proceeding or enters into any agreement for compromising his or her debts other than by the payment of them in the full amount thereof, or is otherwise regarded as insolvent under any Colorado insolvency act. 9.2 Effective Date for Bankruptcy. The Effective Date of a Member's bankruptcy shall be the date that the Managers, having learned of the Member's bankruptcy, give notice in writing stating that the Member is regarded as bankrupt under this Agreement, such notice to be served personally or by leaving the same at the place of business of the Company. As of the Effective Date, the bankrupt Member shall have no further rights as a Member of the Company, except to receive the amounts to which he or she is entitled under Sections 7.3 or 7.4. 14 Jan 12 99 03:09p .Jaffre %3 B. Davis (~~] 544-5116 P. 16 .. X RETIREMENT OR RESIGNATION OF A MEMBER 10.1 Right to Retire or Resign. A Member shall have the right, at any time, to retire or resign as a Member of the Company by giving three (3) months' notice to the Company at the Company's place of business. 10.2 . Consequences of Retirement or Resignation If the Business Is Continued. Upon giving notice of an intention to retire or resign, the Withdrawn Member shall be entitled to have his or her Membership Interest purchased as provided in Section 7.3 if the remaining Members elect to continue the business of the Company under Section 7.2. Upon the receipt of notice of the remaining Member's election to continue the business, the Membership Interest of the Withdrawn Member in the Company shall cease and terminate, and the Withdrawn Member shall only be entitled to the payments provided in Section 7.3. 10.3 Consequences of Retirement or Resignation If the Business Is Not Continued. If the remaining Members elect not to continue the business upon retirement or resignation of a Member, or are unable to do so by law, the Withdrawn Member shall only be entitled to his or her interest in liquidation, as stated in Section 7.4, subject to any setoff for damages caused by the Member' s retirement or resignation. XI DEATH OF A MEMBER 11.1 Death of a Member. Upon the death of a Member, the deceased Member's rights as Member of the Company shall cease and terminate except as provided in this Article XI. 11.2 Consequences of Death If Business Is Continued. If the surviving Members elect to continue the business as provided in Section 7.2, the Managers shall serve notice in writing of such election, within three (3) months after the death of the decedent, upon the executor or administrator of the decedent, or, if at the time of such election no legal representative has been appointed, upon any one of the known legal heirs of the decedent at the last known address of such heir. The Company shall purchase the Membership Interest of the deceased Member as provided in Section 7.3, and the closing of such purchase shall be within thirty (30) days of the notice of such election, except in the event the Company has life insurance on the dec:edent, in which event the amount and method of payment for the Membership Interest of the deceased Member will be as provided in Section 11.3. Provided however, that if the deceased member is Jack P. DeBoer, the executor of his estate, personal representative, or trustee, as the case may be, may elect, in it's sole discretion, to remain a Member and shall succeed to the Membership Interest of Jack P. DeBoer and the company shall continue. 15 Jan 12 99 03:09p -laffrew B. Davis (Elap] 544-5116 p.17 .. 11.3 Insurance. Jack DeBoer or Richard Wax may contract for life insurance on the lives of each of the Members at the purchasers personal expense, in any amount not disproportionate to the value of each Member's Membership Interest. In the event of the death of a Member, insurance proceeds paid to the Company will be used to purchase the Membership Interest of the deceased Member. The purchase price shall be the greater of the amount determined under Section 7.3 or the amount of insurance proceeds received by the Company. The payment of the purchase price to the decedent's representatives or heirs shall be made within thirty (30) days following receipt of the insurance proceeds by the Company. If the surviving Members do not elect to continue the business of the Company, or are unable to do so by law, the proceeds of any life insurance shall be treated as an asset of the Company for liquidation. 11.4 Consequences of Death If the Business Is Not Continued. If the surviving Members do not elect to continue the business, or are unable to do so by law, the deceased Member shall only be entitled to his or her interest in liquidation as stated in Section 7.4. XII SALE OF A MEMBER'S INTEREST 12.1 Provisions Restricting Sale of Membership Interests. The membership interest owned by Richard Wax may not be sold or transferred prior to completion and sale of the property at Lot 35 Maroon Creek Club. In the event that a Member desires to sell, assign, or otherwise transfer his or her Membership Interest in the Company and has obtained a bona fide offer for the sale thereof made by some person not a member of the Company, he or she shall first offer to sell, assign, or otherwise transfer the Membership Interest to the other Members at the price and on the same terms as previously offered him or her, and each of the other Members shall have the right to purchase his or her proportionate share of the selling Member's Membership Interest. If any Member does not desire to purchase the Membership Interest on such terms or at such price and the entire Membership Interest is not purchased by the other Members, no other Member may purchase any part of the Membership Interest, and the selling Member may then sell, assign, or otherwise transfer his or her entire Membership Interest in the Company to the person making the said offer at the price offered. The intent of this provision is to require that the entire Membership Interest of a Member be sold intact, without fractionalization. A purchaser of a Membership Interest of the Company shall not become a Member without the unanimous consent of the non- selling Members, but shall be entitled to receive the share of profits, gains, losses, deductions, credits, and. distributions to which the selling Member would be entitled. Provided, however, and notwithstanding any other provision contained in this Operating Agreement, a Member is permitted to transfer his/her interest free of the restrictions contained in this Article to (1) spouse; (2) children; 0) grandchildren; (4) parent; (5) trust in which the beneficiaries are the Member and/or his/her spouse, children or grandchildren; (6) an entity owned entirely by the Member and/or his/her spouse, children or grandchildren. 16 Jan 12 99 03:llp J,~frew B. Davis (9/Q] 544-5116 p. 18 .. 12.2 Buy/Sell Agreement. At any time that a Member is in good standing and is not in default of any of his obligations to the Company, he shall have the right to make an offer to purchase all of the Membership Interest in the Company owned by any other Member, by giving notice to such other Member and setting forth the purchase price per percentage of Membership Interest, terms and conditions under which he is willing to acquire such interest. For a period of thirty (30) days after the receipt of such notice, the Member receiving such offer shall have the right to purchase all of the Membership Interest of the offering Member at a price per percentage of Membership Interest equal to the purchase price per percentage of Membership Interest specified in said notice and on the same terms and conditions. If said right is not exercised within said thirty (30) day period, the Member receiving such notice shall be deemed to have accepted the offer ~ contained therein and, upon receipt of the purchase price specified in said notice, shall sell, assign and transfer all of his Membership Interest in the Company to the offering Member. In the event there is a transfer of a Membership Interest pursuant to the terms of this section 12.2 and it results in a termination of DeBoer's interest in the Company, then all amounts due for the purchase of the land shall be immediately due and payable and shall be paid simultaneously with the termination of DeBoer's interest. XIII MEMBERS' COVENANTS 13.1 Member's Personal Debts. In order to protect the propeny and assets of the Company from any claim against any Member for personal debts owed by such Member, each Member shall promptly pay all debts owed by such Member, each Member shall promptly pay all debts owing by him or her and shall indemnify the Company from any claim that might be made to the detriment of the Company by any personal creditor of such Member. 13.2 Alienation of Membership Interest. No Member shall, except as provided in Article XII, sell, assign, mortgage, or otherwise encumber his or her Membership Interest in the Company or in its capital assets or property; or enter into any agreement of any kind that will result in any person, firm, or other organization becoming interested with him or her in the Company; or do any act detrimental to the best interests of the Company. 13.3 Cross-Indemnification. In the event that the Members unanimously agree that loans or obligations of the Company should be personally guaranteed by the Members, then the Members shall and hereby agree to indemnify, hold harmless and defend each other such that the liability and obligation of each Member (whether all or less than all actually sign the guaranty documentation) shall be limited to the prorata interest that that Member has in the profits and losses of the Company as designated in paragraph 3.3. 17 Jan 12 99 03:llp Â·lacfrew B. Davis (~~} 544-5116 P.19 .. XIV TAX MATTERS 14.1 Definitions. Â£'Adjusted Capital Account Deficit" means, with respect to any Member for any Fiscal Year, the deficit balance, if any, in such Member's Capital Account as ofthe end of such Fiscal Year, after giving effect to the following adjustments: A. credit to such Capital Account any amounts that such Member is obligated to restore or is deemed obligated to restore as described in the penultimate sentences of Treasury Regulation Â§ 1.704-2(g)(2) and Treasury Regulation Â§ 1.704-2(i)(5); and B. debit to such Capital Account the items described in Treasury Regulation Â§ Â§ 1.704-10)(2)(ii)(d)(4),(5) and (6) "Book Basis" means, with respect to any asset, the asset' s Tax Basis; provided, however, 0 ifan asset is contributed to the Company, the initial Book Basis of such asset shall equal its agreed fair market value on the date of contribution; and (ii) if the Capital Accounts of the Members are adjusted pursuant to Treasury Regulation Â§ 1.704-1(b) to refiect the fair market value of any asset of the Company, the Book Basis of such asset shall be adjusted to equal its respective fair market value as ofthe time of such adjustment in accordance with such Treasury Regulation. The Book Basis of all such assets of the Company shall thereafter be adjusted by Depreciation as provided in Treasury Regulation Â§ 1.704-1(b)(2)(iv)(g) and any other adjustment to the basis of assets other than depreciation or amortization. "Partner Minimum Gain" means Ccpartner nonrecourse debt minimum gain" as defined in Treasury Regulation Â§ 1.704-2(i)(2) "Partner Nonrecourse Debt" means "partner nonrecourse debt" as defined in Treasury Regulation Â§ 1.704-20))(4). "Partner Nonrecourse Deductions" means "partner nonrecourse deductions" as defined in Treasury Regulation Â§ 1.704-20). "Partner Minimum Gain" means partnership minimum gain determined pursuant to Treasury Regulation Â§ 1.704-2(d). "Section 704(b) Regulations" means the final Treasury Regulations under Section 704(b) of the Code relating to the determination ofaMember's distributive share of the Company income, gain, loss, deduction or credit (or items thereof), 18 Jan 12 99 03:12p Jeffres B. Davis (9,12) 544-5116 p.20 .. 14.2 Section 704. Compliance with Section 704(bl. The following special allocations shall, except as otherwise provided, be made in the following order A. Minimum Gain Charge-back. Notwithstanding any other provision of this Article VI, if there is a net decrease in Partnership Minimum Gain or in any Partner Minimum Gain during any Fiscal Year or other period, prior to any other allocation pursuant hereto, each Member shall be specially allocated items of the Company's Profits for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount and manner required by Treasury Regulation Â§Â§ 1.704-20 or 1.704-2(i)(4). The items to be so allocated shall be determined in accordance with Treasury Regulation Â§ 1.704-2. B. Qualified Income Offset. Any Member who unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulation Â§ 1.704-1(b)(2)(Â«d)(4), (5) or (6) which causes or increases a negative balance in his Capital Account shall be allocated items of Profits sufficient to eliminate such increase or negative balance caused thereby, as quickly as possible, to the extent required by such Treasury Regulation. C. Special Income Allocaion. In the event any Member has an Adjusted Capital Account Deficit, each such Member shall be specially allocated items of the Company' s Profits in the amount of such excess as quickly as possible. provided, however, that an allocation pursuant to this Section 3 shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Agreement have been tentatively made as ifthis Section 3 was not in this Agreement. D. Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year or other period ofthe Company shall be allocated (as nearly as possible) among the Members gro ata in proportion to their respective Sharing Interests E. Partner Nonrecourse Deductions. Any Partner Nonrecourse Deductions for any Fiscal Year or other period shall be allocated to the Member that made, guaranteed or is otherwise liable with respect to the loan to which such Partner Nonrecourse Deductions are attributable in accordance with principles under Treasury Regulation Â§ 1.704-20. F. Section 704(b) Limitation. No allocation of Losses or Net Loss, or items thereof, shall be made to any Member if as a result of such allocation, such Member would have an Adjusted Capital Account Deficit. Any such disallowed allocation shall be made to the Members entitled to receive such 19 Jan 12 99 03:13p Jeffrew B. Davis (970] 544-5116 p.21 .. allocation under the Section 704(b) Regulations in proportion to their respective Sharing Interests. XV MISCELLANEOUS PROVISIONS 15.1 Inurement. This Agreement shall be binding upon the parties hereto and their respective heirs, executors, administrators, successors, and assigns, and each person entering into this Agreement acknowledges that this Agreement constitutes the sole and complete representation made to him or her regarding the Company, its purpose and business, and that no oral or written representations or warranties of any kind or nature have been made regarding the proposed investments, nor any promises, guarantees, or representations regarding income or profit to be derived from any future investment. 15.2 Modification. This Agreement may be modified from time to time as necessary only by the written agreement of the Company, acting through the vote or consent of its Managers, and the Members. 15.3 Seve[abilitx. The provisions of this Agreement are severable and separate, and if one or more is voidable or void by statute or rule of law, the remaining provisions shall be severed therefrom and shall remain in full force and effect. 15.4 Governing Law. This Agreement and its term are to be construed according to the laws of the State of Colorado. 15.5 Counterparts. This Agreement has been executed in counterparts and each such counterpart shall be deemed an original of the Agreement for all purposes. 15.6 Attorney's Fees. In the event of dispute, the prevailing party shall be awarded reasonable attorney's fees and costs incurred. Legal fees incurred in the negotiation and entering . into of the option for the Property and this Operating Agreement shall be an expense of the Company. 15.7 Changes to -emiccl. In the event that a purchaser of the residence being developed by the Company requires any changes, such changes shall not be done if it affects the cost or profit margins unless both Managing Manager and Vice-Managing Manager agree and once both parties agree, Managing Manager (but not the Company) shall be entitled to charge the purchaser a reasonable contractor' s fee for such changes. Managing Manager agrees that changes requested by a purchaser shall be done without any contractor's fee if such is reasonably necessary to consummate the sale. 20 Jan 12 99 03:13p J e~-fretj B. Davis (9~] 544-5116 p.22 .. IN WITNESS WHEREOF, we have hereunto set our hands and seals on the day first written above, in Aspen, Colorado. <MEMBERS~ 9t-~--4\ 2 j>C- LJ Jack DeBoer Additional Signature Lines to Follow on Page 22 21 Jan 12 99 03:14p Jalfrew B. Davis C 1-9 . * 544-5116 COMPANY: yEr 36 MAI~)ON CREEK CLUB, LLC \ By: - RichardA~aL MKRager 1 Jack DeBoer, Vice Managing Marker 22 Ef Ki@(T- 3 LOT 37 1 E 136.67' 2 // N.81Â°00'00" . m / / 0 1 / * 1 1 R / 1 --1 0 / Â¥-1 rr~ 1 30 0 5 10 20 30 40 50 FEET 0- l 1 1 -id' 1 1 1- 1 1 * 1 1 1 JO O 0 DENOTES SET NO. 4 REBAR AND RED PLASTIC CAP PLS 24303 - LEGEND. o DENOTES RECORD PLAT CORNER NOT FOUND OR SET 11 1 -<1, ~ DENOTES WATER VALVE DENOTES ELECTRIC TRANSFORMER PEDESTAL 30' / (Cl) =294.00 1 8 =46.18' =223.00' R =120.00' / L f i / 1 1 i C fi l/1 /// /11 CH =S.04'30'00"E. 46.13 1 8 =31Â°34'27" 6 =29Â°49'50" 0 R l C 3 10 R 1 CH =S.15Â°47'14"E. 121.34' CH =S.01Â°35'05"E. 61.77 L =122.88' L =62.48' t < 1 t l \1 7/ 1< 1 1 - 20' 1 NOTES: $ . THE BUILDING ENVELOPE ALED FROM THE SET-BACK MAP R DED IN BOOK 33 AT PAGE 14. . CONTOUR INTERVALS ARE 2 FEET. 3. THERE WAS FOUR (4) FEET OF SNCW ON THE GROUND AT THE TIME OF SURVEY. 4. THIS MAP IS INVALID AS A LE2L DOCUMENT AND POSSESSION OR USIOF THIS MAP IS UNAUTHORIZED ~~ ~~~~~~~~ - - -~ BY THIS SURVEYOR UNL~IT BEARS THE ORIGINAL SIGNATU~AND WET STAMP OF CARL R. ~ Â¢ 1 .. 2 CARMICHAEL, P.L.S. 24303. ~4RODUCTIONS OF A PLAT OR MAP Pl~PARED BY THIS SURVEYOR AND WITHOUT AN ORIGINAL SIGNATURE AND WET STAMP MAY CONTAIN FRAUDULENT, ERRONEOUS OR ~ MISLEADING INFORMATION. DOCUMENTS PREPARED BY THE SURVEYOR AND WITHOUT A SIGNATURE 4 .. AND WET STAMP ARE TO BE VIEWED AS PRELIMINARY AND ALL INFORMATION SHOWN THEREON C 2 ~ < / 20,/ - 8.73030.00"E. 40.0 ~ ~ BASIS OF BEARINGS: A CORD BEARING OF S.48Â°44'27"E. BETWEEN A FOUND NO. 5 REBAR AND YELLOW SUBJECT TO CHANGE. PLASTIC CAP LS20151 AT THE WESTERLY CORNER OF LOT 39, AND A FOUND SPIKE AT THE SOURTHERLY CORNER OF LOT 39 WERE USED AS A BASIS OF BEARING FOR THIS SURVEY.. f /-/ 1\/ff /fli/ll 0 rb ~ U ~ m LOT 35 O. 0 0 9% LEGAL DESCRIPTION LOT 3S y ~ 15,186.33 Sq.Ft. BOOK 33 AT PAGE 4 OF THE PITKIN COUNTY RECORDS, COUNTY OF PITK1N, STATE OF COLORADO LOT 36, MAROON CREEK CLUB SUBDIVISION AND P.U.D., ACCORDING TO THE PLAT THEREOF RECORDED IN ,i SURVEYOR'S CERTIFICATE 1 HEREBY CERTIFY THAT THIS IMPROVEMENT SURVEY PlAT AND TOPOGRAPHIC MAP ACCURATELY DEPICT THE RESULTS OF A SURVEY PERFORMED UNDER MY SUPERVISION AND DIRECTION ON MARCH 6 1998 OF THE HEREON DESCRIBED PARCEL OF LAND THE LOCATION AND DIMENSIONS OF ALL BUILDINGS, IMPROVEMENTS, EASEMENTS, RIGHTS-OF-WAY IN EVIDENCE OR KNOWN TO ME AND ENCROACHMENTS BY OR ON THESE PREMISES ARE ACCURATELY SHOWN. l ~~~~~~~~~~ CARL R. CARMICHAEL, PLS 24303 DATE: MARCH 16. 1998 BY: -4- - - I. NOTICE. Accordint CoÂ»*00 Law you mul commenc, an,.egal act,on b.â€¢ed Surveyed 3-6-98 Revisions Title IMPROVEMENT SURVEY PLAT WITH TOPOGRAPHY Job No 980221- upon any defect in ' survey w Â·hin Ihi,â€¢e y,im Ill,r you first discov,f such deleâ‚¬' 1n no event may 8 , acllon basâ€¢â€¢d upon Iny def,ct in this â€¢,irvey be cornmenci CARL R. CARMICHP D L.S. Drafted 3-16-98 (11'nt WAX mor, than ten yi .,Â· ' - â€¢hâ€¢ 1 4- ./ the certificat,or, sh;wri harion RO. BOX 13â‚¬7 CARBONE'ALE COLL - . 923 (303-963-0. 57) 1.3 -M UU'AlllENT OF MIGHWAYS | ;~ DIVitION OF HIGHWAYS STATE OF COLORADO REV JAN 1971 J 1 FEDERAL ROAD SHEET TOTAL AS CONSTRUCTED DIVISION PAOJ NO REGION NO NO SHEETS , NO REVISIONS REVISED VOID lIli COLORADO REVISIONS < 7 > <> LOT 34 n 61 -/ 9 I 1- 7 J' \ r-~4 40 30 39Â« r-0,0 79 04 1 49 5-49ft (30 \ 1 2Â»1 J / 0 20' LE# 0 4 --f -I--t #---illl. cÂ»'f -7 0 4 4 ~ 4 *5 - mulcr Houtg- --34 /1Ci 1/- 04/ 4 ad -3 404 j 1 r- 1 )Â»1 \ v r 1 0 . 0 0 / - 1 0 - e . . e . . .1/ ~-Â¥ k h A 2 23) 1 i ?V a / / 1 AL--'~ k -1 -J -- 0-0 Â»Â« f f / 1 / \ 4 1. . 1