HomeMy WebLinkAboutresolution.council.067-02
ND-r ~-:Plt:v-
CooIU.-tL.. 7~
LU~. ~
t2e~ ~) 2oD'Z----'
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AUTHORIZING THE SALE OF THE ASPEN MUNICIPAL GOLF COuRSE PRO SHOp
LAND TO THE ASPEN JUNIOR GOLF FOUNDATION.
RESOLUTION NO. [qf-
Series of 2002
WHEREAS, there has been submitted to the City Council a proposed agreement of
Purchase and Sale of the Aspen Municipal Golf Course Pro Shop between the City of Aspen and
the Aspen Junior Golf Foundation for the sale of certain real property; and
WHEREAS, the electors of the City of Aspen at the November 7, 2000, General Election
did authorize the City Council to sell the Aspen Municipal Golf Pro Shop building and land to
the Aspen Junior Golf Foundation; and
WHEREAS, after due deliberation and consideration the City Council has determined
that it is in the best interest of the City of Aspen to approve said proposed agreement for the sale
of the Aspen Municipal Golf Pro Shop and land.
NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO, that the City manager is hereby authorized to execute on behalf of
the City of Aspen the proposed agreement of Purchase and Sale of the Aspen Municipal Golf
Course Pro Shop between the City of Aspen and the Aspen Junior Golf Foundation appended
hereto as Exhibit A and all other documents required to consununate the proposed transactions.
Dated:
,2002.
Helen Kalin Klanderud, Mayor
'--,.,I
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is
a true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held , 2002.
Kathryn S. Koch, City Clerk
JPW-04/03/2002-G:\john\word\resos\proshop-res.doc
. ,
.
.
(Jr-
.;: ~'
AGREEMENT OF PURCHASE AND SALE
OF THE
ASPEN MUNICIPAL GOLF COURSE PRO SHOP
THIS AGREEMENT, made and entered on this , 2002, by
and between the City of Aspen, a home rule municipal corporation ("Seller"), and the Aspen
Junior Golf Foundation, a not-for-profit organization incorporated in the State of Colorado
("Purchaser").
WHEREAS, the Seller is currently building a new facility on the Aspen Municipal Golf
Course to accommodate a new golf pro shop; and
WHEREAS, the Purchaser desires to purchase the existing pro shop building and land
situated on the Aspen Municipal Golf Course; and
WHEREAS the Seller desires to sell the existing pro shop building and land to the
Purchaser; and
WHEREAS, the voters of the City of Aspen, pursuant to Section 13.4 of the Aspen
Home Rule Charter, at the November, 2000 municipal election, did approve the sale of the
existing pro shop to the Purchaser.
NOW, THEREFORE, the parties hereto, for the consideration hereinafter set
forth, agree as follows:
1. THE PROPERTY. Subject to the terms and conditions set forth in this
agreement and the Resale Deed Restriction set forth at Exhibit A appended hereto and
incorporated herein as if fully set forth, Seller agrees to convey to Purchaser real property
consisting of the Building commonly referred to as the existing pro shop and approximately
4,406 square feet of land situated on the Aspen Municipal Golf Course described and depicted
in greater detail on Exhibit B appended hereto, together with all other improvements thereon.
(Hereinafter referred to as the "Property.")
2. CLOSING. "Closing" shall mean the date on which a Special Warranty Deed
transferring title to the Property is recorded in conformity with the laws of the State of
Colorado with the Clerk and Recorders Office' of Pitkin County. Closing shall occur on or
before , so long as all conditions precedent to closing have been
satisfied or waived by such date.
3. PURCHASE PRICE AND TERMS. The total purchase price for the Property
shall be Two Hundred Thousand Dollars ($200,000.00) payable as follows:
a. Fifty Thousand Dollars ($50,000.00) in cash or certified funds at
Closing subject to closing prorations and adjustments as herein described.
. . r , Aspen Municipal Golf Course Pro Shop
Aspen Jr. Golf Foundation
Page 2
b. Purchaser shall execute a promissory note ("Note") in the amount gf-
$150,000.00, which Note shall be secured by the lien of a first Deed of Trust on the Property
("Deed of Trust"). The Note and Deed of Trust shall be in the foI1IlS. attached hereto as '
Exhibits C and D respectively. The Note shall be for a period of three (3) years and shall'"
provide for annual payments of interest only on the first two anniversary dates and the entire
principal amount and unpaid interest due on the third anniversary date. Interest shall accrue af
the rate of 5% per year. .
c. At closing, Seller shall also execute and deliver to Purchaser a License
Agreement covering the driving range, putting green and sheds historically used by Aspen
junior Golf, in the form attached hereto as Exhibit E.
4. . EVIDENCE OF TITLE. Seller shall furnish to Purchaser, at Seller's sole cost
and expense, a current ALTA commitment for owner's title insurance on the Property in an
amount equal to the purchase price, from a title company acceptable to Purchaser, with all
standard exceptions deleted concerning survey matters and liens for labor, service, or
materials not of record, and in an amount equal to the purchase price, together with any copies
of all instruments listed in the schedule of exceptions of said title insurance commitment on or
before fourteen (14) days following acceptance of this contract by Seller. The title insurance
commitment, together with any copies of instruments furnished pursuant to this Paragraph 4,
shall constitute the Title Documents.
5. TITLE.
a. Title Review. Purchaser shall have the right to inspect the Title Documents.
Written notice by Purchaser of unmerchantability of title or of any other unsatisfactory title
condition shown by the Title Documents shall be signed by or on behalf of the Purchaser and
given to Seller on or within fourteen (14) calendar days after receipt by Purchaser of any
Title Documents or endorsements adding new exceptions in the title commitment together with
a copy of Title Documents adding new exceptions to title. If Seller does not receive
Purchaser's notice by the date(s) specified above, Purchaser accepts the condition of the title
as disclosed by the Title Documents as satisfactory.
b. Matters Not Shown bv the Public Records. Seller. .shall deliver to Purchaser,
on or before the date set for providing Title Documents, true copies of all leases(s) and
survey(s) in Seller's possession pertaining to the Property and shall disclose to Purchaser all
easements, liens and other title matters not shown by the public records of which Seller has
actual knowledge. Purchaser shall have the right to inspect the Property to determine if any
third party has any right in the Property not shown by the public records (such as unrecorded
easements, unrecorded lease, or boundary line discrepancy). Written notice of any
unsatisfactory cOndition(s) disclosed by Seller or revealed by such inspection shall be signed
by or on behalf of Purchaser and given to Seller on or within thirty (30) calendar days after
receipt by Purchaser of the Title Documents. If Seller does not receive Purchaser's notice by
.'
<..,
Aspen Municipal Golf Course Pro Shop
. Aspen Jr. Golf Foundation
Page 3
said date, Purchaser accepts title subject to such rights, if any, of third parties of which
Purchaser has actual knowledge.
c. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO
GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM
ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. J>ROPERTY
OWNERS IN SUCH DISTRICTS MAYBE PLACED AT RISK FOR INCREASED MILL LEVIES AND
EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE
CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE
SUCH INDEBTEDNESS WIYTHJOUT SUCH AN INCREASE IN MILL LEVIES. PURCHASER SHOULD
INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHRORIZED GENERAL
OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICTS
SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR INCREASE IN SUCH MILL LEVIES.
In the event the Property is located within a special taxing district and Purchaser
desires to terminate this contract as a result, if written notice is given to Seller on or before the
date set forth in subsection 5(b), this contract shall then terminate. If Seller does not receive
Purchaser's notice by the date specified above, Purchaser accepts the affect of the Property's
inclusion in such taxing district(s) and waives the right to so terminate.
d) Right to Cure. If Seller receives notice of unmerchantability of title or any
other unsatisfactory title condition(s) as provided in subsection (a) or (b) above, Seller shall
use reasonable effort to correct the unsatisfactory title condition(s) prior to the date of closing.
If Seller fails to correct said unsatisfactory title condition( s) on or before the date of closing,
this contract shall then terminate, provided, however, Purchaser may, by written notice
received by Seller, on or before closing, waive objection to. said unsatisfactory title
condition(s). If Purchaser waives objections to title defects, the sale of the real property shall
close as scheduled herein.
6. COVENANTS. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby covenants, represents and warrants to the Purchaser the following, all of which
shall be true, accurate and complete as of the date hereof and shall survive the closing:
a. Status and Authority. Seller has the right, legal capacity and authority to
enter into and perform its obligations under this Agreement, and the documents to be executed
and delivered pursuant thereto.
b. No Liabilities. Prior to or at the time of closing, Seller shall pay, or
otherwise secure the release of, every debt, account payable, liability or obligations or any
nature whatsoever, contingent or otherwise, that is, or could become, a lien or other
encumbrance against the Property, and Seller shall not engage in any action with respect to the
Property between the date of execution of this Agreement and the closing date that could give
rise to a lien or claim against the Property.
. ' Aspen Municipal Golf Course Pro Shop
Aspen Jr. Golf Foundation
Page 4
c. Litigation. No action, suit or proceeding is pending or, to the best of
Seller's knowledge, threatened against the Property or Seller or affecting Seller's interest in,
management of, or other activities with respect to, the Property. Seller is not in default of any
order of any court, arbitrator or governmental body respecting the subject Property.
d. No Notice of Violation. Seller has no knowledge of and has received no
notice of any pollution, health, safety, or environmental violation with respect to the Property
or any portion thereof which has not been cured.
e. No Conflict. The execution and delivery of this Agreement and the
documents required hereunder, and the consummation of the transactions contemplated herein,
will not: (1) conflict with or be in contravention of any provision of any law, order, rule or
regulation applicable to Seller or the Property; (2) result in the breach of any of the terms or
provisions of, or constitute a default under, any agreement or other instrument to which Seller
is a party, or by which it or any portion of the Property may' be bound or affected; (3) permit
any party to terminate any such agreement or instrument or to accelerate the maturity of any
indebtedness or other obligation of the Seller; or (4) result in any lien, charge or encumbrance
of any nature on the Property other than as permitted by this Agreement.
f. True and Correct Information. To the best of Seller's knowledge, no
document, certificate or written statement furnished to the Purchaser and its attorney by Seller
in connection with this transaction contains or will contain any untrue statement of a material
fact or omits or will omit to state any material fact necessary in order to make the statements
contained therein not misleading. Additionally, Seller has disclosed all encumbrances and/or
defects in title not shown by the public records and all title documents of which Seller has
actual knowledge.
g. Use of Property Pending Closing. Between the date of this Agreement
and the closing date, Seller:
(i) Shall maintain the Property in its current condition, normal wear
and tear excepted;
(ii) Shall not permit the Property to be used or operated in any
manner that would be in violation of any local, state or federal law or
regulation.
h. No Other Agreement. There are no other agreements, oral or written,
which affect the Property, which will survive the closing, except as disclosed by Seller
provided to the Purchaser pursuant to this Agreement.
i. Environmental Matters. The Seller has not placed any ha2ardous
materials on the Property and to the best of the Seller's knowledge, the Property has never
Aspen Municipal Golf Course Pro Shop
Aspen Jr. Golf Foundation
. Page 5
been used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer,
produce, process, or in any manner deal with hazardous materials. The Seller hereby
represents that the Property has been closely associated with the operation of a golf course,
agricultural and ranching operations and such operations may have required the use of certain
herbicides, pesticides, insecticides, arid other chemical agents. To the extent that the use of
such chemicals constituted the placement of hazardous materials on the property, the
representation made in the fIrst sentence of this paragraph is conditioned accordingly. For
purposes of this Contract, the term "hazardous materials" shall mean any gasoline, petroleum
products, explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous
or toxic substances, polychlorinated biphenyls or related or similar materials, asbestos, or any
other substance or material as may be defmed as a hazardous or toxic substance by any
environmental law, ordinance, rule or regulation of any governmental authority, including,
without limitation, the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. Sections, 9601, et seq.) the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Sections 1801, et seq.), the Federal Water
Pollution Control Act (33 U.S.C. Sections 1251, et seq.), the Clean Air Act (42 U.S.C.
Sections 7401, et seq.,) C.R.S. 1973 Section 25-17-101 et seq., as amended, and C.R.S.
Section 25-15-101, et seq.
j. Title. Seller has good and merchantable title to the Property free and
clear of all monetary liens and encumbrances (except those to be discharged or released at or
before Closing), and there exists no restrictions on the right of Seller to transfer and assign the
Property and convey good title thereto to Purchaser. This representation is subject to all
matters that will be disclosed by the title Commitment and the Purchaser's physical inspection
of the Property.
k. Defects. Seller has no knowledge of any patent or latent defects,
soil deficiencies, or SUbsurface anomalies existing on the Property, or any structural or
mechanical defects in the Building.
1. Permitted Uses. Seller represents that prior to closing, the Property will
be rezoned "Public," which allows private non-profit uses that provide a community service as
Permitted Uses.
m. Legallv Separate Parcel. As of the date of closing hereunder, the
Property shall be a legally separate parcel of land for which a valid subdivision exemption has
been obtained.
7. COSTS. Seller shall pay the costs of Seller's counsel, accountants and other
professional services and all sales, use, transfer and similar taxes, if any, payable in
connection with the transactions contemplated by this Agreement. Purchaser shall pay all the
costs of Purchaser's counsel, accountants and other similar services and all recording fees and
documentary transfer taxes.
"
.'
Aspen Municipal Golf Course Pro Shop
Aspen Jr. Golf Foundation
Page 6
8. DOCUMENTS AND SERVICES. The parties hereto shaH sign and complete
all customary or required documents at or before closing.
9. POSSESSION. Possession of the Property shaH be delivered to the Purchaser
at a mutually convenient date and time, but no later than on the date of Closing. If SeHer after
closing, fails to deliver possession on the date herein specified, Seller shall be subject to
eviction and shaH be additionaHy liable for payment of $500.00 per day as liquidated damages
from the date of agreed possession until possession is delivered.
10. TIME OF ESSENCE/DEFAULT/REMEDIES. Time is of the essence hereof.
If any note or check received or any of the payments due hereunder is not paid, honored or
tendered when due, or if any other obligation hereunder is not performed within the time
frames specified herein, there shall be the following remedies:
a. IF THE PuRCHASER IS IN DEFAULT, then Seller may elect to treat
this Agreement as canceled, in which case all payments and things of value paid hereunder
shall be forfeited and retained on behalf of Seller, and Seller may recover such damages as
may be proper, or Seller may elect to treat this Agreement as being in full force and effect,
whereupon Seller shall have the right to an action for specific performance or damages, or
both.
b. IF SELLER IS IN DEFAULT, the Purchaser may elect to treat this
Agreement as terminated, in which case all money payments and things of value paid
hereunder shall be returned forthwith to the Purchaser and Purchaser may recover such
damages as may be proper, or may elect to treat this Agreement as being in full force and
effect, whereupon the Purchaser shall have the right to an action for specific performance or
damages.
c. Anything to the contrary herein notwithstanding, in the event of any
litigation arising out of this Agreement, the court may award to the prevailing party its
reasonable costs and expenses, including attorneys and expert witness fees.
11. SURVIVAL OF COVENANTS. REPRESENTATIONS AND WARRANTIES.
The covenants, representations, warranties and indemnities made by the parties to this
Agreement, and the obligations and agreements to be performed or complied with by the
respective parties hereunder on or before the closing date, shall survive the closing, but shall
terminate and be of no further force and effect on the third anniversary of the date of Closing.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto, and supersedes all prior and contemporaneous agreements,
representations and understandings of the parties regarding the subject matter of this
. .
'.
Aspen MunicipafGolfCourse Pro Shop
Aspen Jr.. Golf Foundation
Page 7
Agreement. No supplement, modification or amendment of the Agreement shall be binding
unless executed in writing by the parties hereto.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
14. BINDING EFFECT. This Agreement shall be binding upon and shall inure to
the benefit or the parties hereto and their respective heirs, successor and assigns. The
Purchaser may in its sole discretion, and without the prior consent of Seller, assign all of the
Purchaser's right hereunder to, or cause title to the Building to be taken in the name of non-
profit nominee( s) selected by the Purchaser.
15. RECOMMENDATION OF LEGAL COUNSEL. By signing this document,
the parties hereto acknowledge the advisability of obtaining the advice of independent legal
regarding examination of title documents and the terms of this Agreement.
16. GOVERNING LAW. This Agreement shall be governed by and be construed
in accordance with the laws of the State of Colorado and the parties hereto hereby consent to
the exclusive jurisdiction of the Colorado state courts in the event of any controversy or suit
arising hereunder.
17. SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of .
this Agreement shall remain in full force and effect and shall in no 'way be affected, impaired
or invalidated.
18. TERMINATION. In the event this Agreement is terminated for any reason,
pursuant to the terms hereof, all money payments, with any accrued interest, and things of
value paid hereunder shall be returned forthwith to the Purchaser.
19. NOTICES. All notices and other communications tendered in connection with
this Agreement shall be in writing, and shall be deemed to have been duly given when
delivered in person or by telefax, or on the fourth day after mailing, if mailed registered or
certified mail, postage prepaid and properly addressed as follows:
To Purchaser:
Office of the City Manager
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
^'
Aspen Municipal Golf Course Pro Shop
Aspen Jr. GolfFoundalion
Page 8
With a copy to the City Attorney at the same address.
To Seller:
Aspen Junior Golf Foundation
Attn: Ernie Fyrwald, President
308 S. Hunter
Aspen, CO 81611
With a copy to:
Arthur C. Daily, Esq.
Holland & Hart, LLP
600 E. Main St.
Aspen, CO 81611
20. FACSIMILE TRANSMISSIONS. It is mutually agreed upon by all the parties
to this Agreement that, if necessary, facsimile communication shall be an acceptable and
binding form of communication.
CITY OF ASPEN:
By:
City Manager
Date
THE ASPEN JUNIOR GOLF FOUNDATION
By j~J.- C7Q
Title: /1$ I'rouJle-J'"
7^~~ /,L-
, .
Date
.~...
.-.
.-....
. -~ ...-. ....
...... '.~.
. ......
... .
.....
- .
. . .......
.,
~.
I
IL
~ M~ CRuK li:t>.
r
\ .
. ,.
.. .
,
"
:. \.~ , ~ ~ ..
. .;!'.<;
Aspen Municipal Golf Course Pro Shop
Aspen Jr. Golf Foundation
Page 9
EXHIBIT LIST TO AGREEMENT YO BUY AND SEI..LREAL PROPERTY
Exhibit "A" - Resale Deed Restrictions
Exhibit "B" - Legal Description of Property
Exhibit "c" - Promissory Note
Exhibit "D" - Deed of Trust
Exhibit "E" - License Agreement
JPW -D2/08120?2-G:\johnlwordlagr\juniorgolf.doc
if
,
RESALE DEED RESTRICTION,
AGREEMENT, AND COVENANT
THIS RESALE DEED RESTRICTION. AGREEMENT, AND COVENANT (the
"Agreement") is made and imposed this day of , 2002, by the
Aspen Junior Golf Foundation ("Owner"), for the benefit of and enforceable by the CITY OF
ASPEN, a Colorado home rule city, for and in consideration of the conveyance of the subject
property to Owner.
WITNESSETH:
WHEREAS, Owner has purchased and owns as a result of that certain warranty deed
executed on the date hereof, real property more specifically described in Exhibit A attached
hereto and incorporated herein. For purposes of this Agreement, the building, the real
property and all appurtenances, improvements and fixtures associated therewith shall
hereinafter be referred to as the "Property"; and
WHEREAS, Owner agrees to restrict the acquisition of the Property to the City of
Aspen or its designees. In addition, the Owner agrees that this Agreement shall constitute a
resale agreement setting forth the maximum sale price for which the Property may be sold
("Maximum Sale Price"), the amount of appreciation and the terms and provisions controlling
the resale of the Property should Owner desire to sell the Property at any time after the date of
this Agreement.
NOW, THEREFORE, for value received as described above, the receipt and
sufficiency of which is hereby acknowledged, Owner hereby represents, covenants and agrees
as follows:
L In connection with the purchase of this Property, Owner agrees to re-sell the
Property only in accordance with this Agreement.
2. It shall be a breach of this Agreement for Owner to default in payments or other
obligations due under a promissory note secured by a first deed of trust. Owner
hereby agrees to notify City of Aspen, in writing, of any notification it receives
from a lender, or its assigns, of past due payments or default in payment or
other obligations due under a promissory note secured by a first deed of trust
within five calendar days of Owner's notification from lender, or its assigns, of
said default or past due payments.
3. This agreement shall constitute covenants running with the real property
described in Exhibit A, as a burden thereon for the benefit of, and shall be
specifically enforceable by, the Owner and City of Aspen, and their respective
successors and assigns, as applicable, by any appropriate legal action including
but not limited to injunction, reversion, or eviction of non-complying owners
and/or occupants.
4. . In the event that the Owner desires to sell the Property or is required to do so
pursuant to the terms hereof, Owner shall so advise City of Aspen in writing
and City of Aspen, or its designee, shall purchase the Property from Owner not
more than ninety (90) days from the date of receipt of such notice, at the
purchase price established by this Agreement.
RESALE PRICE
5. In the event that the Property is sold to City of Aspen or its designee pursuant to
this Agreement, the Property shall be sold for an amount equal to:
The Owner's purchase price of $200,000.00, plus an increase of an
amount (based upon the Consumer Price Index, CPI-W, Urban Wage
Earners and Clerical Workers, U.S. City Average, All Items
(1967= 100), published by the U.S. Department of Labor, Bureau of
Labor Statistics) calculated as follows: the Owner's purchase price
multiplied by the monthly Consumer Price Index last published prior to
the date of Owner's notice of desire to sell divided by the Consumer
Price Index current at the date of this Agreement,
Plus the cost of Capital Improvements.
Capital Improvements means capital improvements made and paid for by
Owner pursuant to the requirements of any governmental body or
agency, or approved in writing by the City of Aspen through its City
Manager or designee. Capital Improvements shall be validated by
production of original receipts for costs (actual cost) with no allocation
for Owner's "sweat equity"; no Capital Improvements shall be added to
calculation without proof of receipts affidavit as to validity of receipts,
and Certificate of Occupancy (where applicable) from the Aspen/Pitkin
County Building Department,
Less the cost of any repairs or replacements necessary to restore the
Property to a reasonably adequate level of repair and habitability as
determined by an independent professional property inspector jointly
selected by Owner and the City of Aspen whose decision shall be final.
For purposes of this section, repairs and replacement required by
ordinary wear and tear shall not be deducted from the sales price
otherwise computed hereunder. In the City's sole discretion, $5,000.00
may be withheld at the time of resale pending a determination of all
repair and replacement costs. This amount shall not be withheld for a
period exceeding 30 days. Upon determining the amount of repair and
replacement costs, the City shall pay to the Owner the difference
between the amount withheld and the actual costs for repairs and
replacement.
USE RESTRICTION
6. Owner shall use the Property in furtherance of .its mission and for no other
purpose. Owner may lease not more than 50% of the building to entities that meet
the City of Aspen Land Use Code definition of Non-Profit organizations and that
provide a community service, as determined by the Community Development
Director of the City. The Community Development Director shall not
unreasonably withhold his or her consent, provided that Owner shall not charge
more than $16.00 per square foot as rent to any prospective. lessee. The maximum
rental rate may be increased by any increase in the CPI as calculated in Paragraph
5 above.
7. All disputes between Owner and administrative staff of City of Aspen shall be
decided by the City Manager of the City of Aspen, and any decision of the City
Manager may be appealed to the Aspen City Council within ten (10) days of any
decision by the City Manager.
8. Each party shall be responsible for the payment of that party's respective
customary closing costs and prorations.
9. There is hereby reserved to the parties hereto any and all remedies provided by
law for breach of this Agreement or any of its terms. In the event the parties
resort to litigation with respect to any or all provisions of this Agreement, the
prevailing party shall be entitled to recover damages and costs, including
reasonable attorney's fees.
10. In the event the Property is sold and/or conveyed without compliance herewith,
such sale and/or conveyance shall be wholly null and void and shall convey no
title whatsoever upon the purported buyer. Each and every conveyance of the
Property, for all purposes, shall be deemed to include and incorporate by this
reference, the covenants herein contained, even without reference herein to this
Agreement.
11. In the event that the Owner fails to cure any breach, City of Aspen may resort
to any and all available legal action, including, but not limited to, specific
performance of this Agreement or a mandatory injunction requiring sale of the
Property by Owner. The costs of such sale shall be taxed against the proceeds
of the sale with the balance being paid to the Owner.
12. In the event of a breach of any of the terms or conditions contained herein by
Owner, his heirs, successors or assigns, that is not cured within 10 days
following written notice of violation from the City of Aspen to Owner, the
original purchase price of the Property as set forth in section 5 of this
Agreement shall, upon the date of such breach, automatically cease to increase
as set out in paragraph 5 of this Agreement, and shall remain fixed until the date
of cure of said breach.
GENERAL PROVISIONS
13. Notices. Any notice, consent or approval which is required to be given
hereunder shall be given by mailing the same, certified mail, return receipt
requested, properly addressed and with postage fully prepaid, to any address of
the party as long as prior written notice of the change of address has been given
to the other parties to this Agreement. Said notices, consents and approvals
shall be sent to the parties hereto at the following addresses unless otherwise
notified in writing:
To Owner: Aspen Junior Golf Foundation
Attn: Ernie Fyrwald, President
308 S. Hunter
Aspen, CO 81611
To Aspen: City Manager
130 South Galena Street
Aspen, Colorado 81611
14. Exhibits. All exhibits attached hereto, if any, are incorporated herein and by
this reference made a part hereof.
15. Severability. Whenever possible, each provision of this Agreement and any
other related document shall be interpreted in such manner as to be valid under
applicable law; but, if any provision of any of the foregoing shall be invalid or
prohibited under said applicable law, such provisions shall be ineffective to the
extent of such invalidity or prohibition without invalidating the remaining
provisions of such document.
16. Choice of Law. This Agreement and each and every related document is to be
governed and construed in accordance with the laws of the State of Colorado.
17. Successors. Except as otherwise provided herein, the provisions and covenants
contained herein shall inure to and be binding upon the heirs, successors and
assigns of the parties.
18. Waiver. No claim of waiver, consent or acquiescence with respect to any
. provision of this Agreement shall be valid against any party hereto except on the
basis of a written instrument executed by the parties to this Agreement.
However, the party for whose benefit a condition is inserted herein shall have
the unilateral right to waive such condition.
19. Further Actions. The parties to this Agreement agree to execute such further
documents and take such further actions as may be reasonably required to carry
out the provisions and intent of this Agreement or any agreement or document
relating hereto or entered into in connection herewith.
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year above first written.
OWNER:
,
1J:5;'#7I. ~. c" IF ~",c:I?./-?"""'-
IZn" 'c- t:.;v",,~?J
"s /"',.... Y,;/-a--.....r
STATE OF COLORADO )
) ss.
County of Pitkin )
The foregoing instrument was acknowledged before me this
,2001, by
WITNESS MY HAND AND OFFICIAL SEAL.
day of
My commission expires:
Notary Public
Address
ACCEPTANCE BY THE CITY OF ASPEN
The foregoing grant and its terms are accepted by the City of Aspen.
CITY OF ASPEN, COLORADO
By:
Helen Kalin Klanderud, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
STATE OF COLORADO )
) ss.
County of Pitkin )
The foregoing instrument was acknowledged before me this day of
,2001, by Helen Kalin Klanderud as Mayor and Kathryn
S. Koch as City Clerk of the City of Aspen, Colorado.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
Notary Public
JPW -o7115f2002-G:\john\word\agr\juniorgolf~deedrest.doc
.
JUNIOR GOLF FACILITIES LICENSE AGREEMENT
THIS JUNIOR GOLF FACILITIES LICENSE AGREEMENT (the "License
Agreement"), made and entered into this _ day of , 2002, by and between
The City of Aspen, Colorado, a home rule municipal corporation (hereinafter "City"),
and the Aspen Junior Golf Foundation, a Colorado nonprofit corporation (hereinafter
"Junior Golf'),
WITNESSETH:
WHEREAS, Junior Golf is the owner of Lot 6, Aspen Golf Course Subdivision,
according to the Fourth Amended Plat thereof recorded , 2002 in Plat Book
__ at Page ___ in the Office of the Clerk and Recorder of Pitkin County, Colorado;
and
WHEREAS, Junior Golf's headquarters for its programs at the Aspen Municipal
Golf Course are located in the old pro shop situated on Lot 6; and
WHEREAS, City is the owner of Lot 1, Aspen Golf Course Subdivision,
according to said Fourth Amended Plat, on the northerly end of which are located the
Junior Golf driving range, tee box, putting green, and storage sheds (collectively the
"Junior Golf Facilities"), all of which were constructed by and have historically been
used by Junior Golf as a critical component of its operations at the Aspen Municipal
Golf Course; and
WHEREAS, the general layout of the Junior Golf Facilities is depicted on the
drawing attached hereto as Exhibit A and made a part hereof by this reference; and
WHEREAS, in order to protect the future of its programs at the Aspen
Municipal Golf Course, Junior Golf desires to obtain from City a license for the
continued use of the Junior Golf Facilities, and City desires to grant such license to
Junior Golf, all upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises and for other
good and valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
I. Grant of License; Reserved City Use. City hereby grants to Junior Golf
a license to use the Junior Golf Facilities on Lot I of the Aspen Golf Course
Subdivision in furtherance of Junior Golf's programs at the Aspen Municipal Golf
Course, which programs include without limitation lessons, clinics, fund raising, and
practice for golfers less than 18 years of age excluding volunteers of the Aspen Jr. Golf
Program. City reserves the right to use the Junior Golf Facilities for a maximum of 6
golf camps per season, each camp to run for no more than 3 consecutive days, for a
total of 18 days per season. The City's golf camps shall use the Junior Golf Facilities
1
,
either before or after the regularly scheduled Aspen Jr. Golf Program. Aspen Jr. Golf
agrees not to compete with the interests of the City or its Lease Holder for normal
income producing golf course operations such as teaching, cart rental, holding clinics,
providing range balls or selling new golf equipment to anyone over the age of 18 and
Junior golf volunteers. On or before March 1 of each year, the Aspen Jr. Golf DireCtor
shall provide the City with a schedule that sets forth Aspen Jr. Golf's planned days and
hours of the program and camp operations for the coming season. During the times
when the City is conducting golf camps on the Junior Golf Facilities, 5 practice tee
stalls (as shown on attached map) shall always be available to Junior Golf and Junior
Golf shall have the non-exclusive use of the putting green. During the times that Junior
Golfis using the Junior Golf Facilities, 5 practice tee stalls (as shown on attached map)
shall always be available to City and City. shall have the non-exclusive use of the
putting green. With the exception stated hereinabove, Junior Golf shall have exclusive
use of the Junior Golf Facilities during the term of this License Agreement for Junior
Golf sponsored activities for junior golfers during the term of this License Agreement.
2. Term. The license granted herein shall have an initial term of twenty (20)
years from the date of this License Agreement. City shall have the right to terminate the
License Agreement on October 31, 2009, October 31, 2014 or October 31, 2019, by
giving Junior Golf at least five (5) years prior written notice of such termination. A
majority of the full membership of the Aspen City Council must authorize and approve
such termination in a public meeting noticed for such purpose. Prior to the expiration of
the initial term hereof, City and Junior Golf agree to negotiate in good faith the terms of
a mutually acceptable extension of the term of this License Agreement.
3. Maintenance; Alteration. City agrees to continue to maintain the Junior
Golf Facilities in accordance with the same maintenance standards that it applies to the
Aspen Municipal Golf Course, at an expense to Jr. Golf of $2,500.00 per season.
(Beginning in October 31, 2009, and every year thereafter, the $2,500.00 per season
payment shall be adjusted upward, based upon increases, if any, in the cost of living
during the preceding year using the Consumer Price Index - All Urban Consumers
(CPI-U) - U.S. City Average, or a successor or substitute index published or authorized
by the United States Department of Labor, Bureau of labor Statistics.) City further
agrees not to make any material alterations to the Junior Golf Facilities during the term
of this License Agreement without the prior written consent of Junior Golf.
4.. Liability Insurance. Junior Golf agrees to maintain in effect at all times
during the term hereof a policy of general liability insurance in the minimum amount of
$1,000,000.00, which policy shall name City as an additional insured. Similarly, City
agrees to add Junior Golf as a named insured on the City's general liability insurance
policy.
5. Indemnification of City. Junior Golf agrees to indemnify, defend and
hold harmless City from and against any and all claims, demands, causes of action,
liabilities, damages, losses, costs or expenses of any kind or nature (including without
limitation those involving death, personal injury or property damage) arising out of or
incurred in any way in connection with the use of the Junior Golf Facilities by
2
participants in Junior Golf programs. This indemnification shall not cover liabilities,
losses or damages arising from use of the Junior Golf Facilities by City and/or
participants in City programs, or by unauthorized persons not associated with Junior
Golf or City.
6. Counterparts; Facsimile Sie;natures. This License Agreement may be
executed in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Facsimile signatures
shall be considered original signatures hereon.
7. Enforcement; Attorney's Fees. Either party shall have the right to
enforce this License Agreement by an action at law or in equity, including an action for
injunctive relief or damages or both. In the event of litigation between the parties hereto
involving the interpretation or enforcement of this License Agreement, the prevailing
party in such litigation shall be entitled to an award of its reasonable attorneys fees and
costs incurred in connection therewith.
8. Bindine; Effect, Etc. This License Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns.
This License Agreement shall be construed in accordance with and governed by the
laws of the State of Colorado; contains the entire agreement between the parties
pertaining to the subject matter hereof and supersedes all prior agreements, writings,
representations and negotiations relating hereto; and may not be amended or modified
except by an instrument in writing signed by both of the parties.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day and year first above written.
CITY:
The City of Aspen, Colorado
By:
Helen Klanderud, Mayor
JUNIOR GOLF:
Aspen Junior Golf Foundation
By:
3
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this day of
, 2002, by Helen Klanderud as Mayor of The City of Aspen,
Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this ___ day of
,2002, by Ernie Fyrwald as President of the Aspen Junior Golf
Foundation.
Witness my hand and official seal.
My commission expires:
Notary Public
J PW -0 7116/2 002-0: \j 0 hn \ word\agr\j r-go If-Ii cen seagmt3 .doc
4
JUL-12-02 14,21 PROM,HOLLANDHART
lD,S70S25S415
PAGE
2/5
.....
'file priutod pIll1io..oflbis form,.m,.t ilt1IJcke4.... dllf.....lia1l!d additioDs, llave...... approved by tbc Colorado ReaI_ CommboioD.
I; Slw]l-3S
IFTUlSFOR!\f IS USED IN A CONS1JMER ClmDrrTRANSAcnoN, CONS1Jl.'fLEGAL COm~SEL.
TIllS ISA LEGAL 1NSI'RVMlll'<T. IF KOT VKDERSTOOD,t!:GM, TAX Oil: 0'IlIER COllNSELSllOli\.O BE CONSVL'lED BEFORESlGNING.
PROMISSORY NOTE
U.S. $ 150.000.00
Aspen
. Colorado
.2002
Date:
1. FOR VALUE RECEIVED, the Wldetsigi1ed (Borrower) promise(s) to pay to The City of Aspen, Colorado or
orela', (Note Holder) the principal $llIII of~Hundred Fifty Thousand U.S. Dollars, with interest on the Wlpaid
principal balance from the date of this Note, until paid. at the rate of 5 percent per aIJnllIll. Principal :md interest
sball be payable at 130 South Galena Street, AspeJl, Colorado 81611, or such other place is the Note Holder may
desigDate, in two (2) payments of accrued interest only due on the first and second amUversary dates of this Note,
with the lllllire principal sum:md all UDpaid accrned interest being due on the third amrivet'S"l'Y date of this Note.
2. Payments received for application to this Note shall be applii1d first to the payment of late cbarges, if any, second to
the payment of accrued interest at the rate specified below, if any, third, to accmed interest first specified above, and the .
balance applied in reduction of the principal amount hereof.
3. If any paymeJll: required by this Note is not paid when due, or if any dcfindc under any Deed of Trust sccuriIJg this
Note 0CCU1S, and 10 days written notice of such late payment or other default h3s been given to Borrower and the late
payment or other default remalns uncured follo~ said 10 day period, Ibm the entire principal amount outstanding and
accru<:d interest thereon shall at once become due and payable at the option of the Note Holder (Acceleration); and the
delinquent amount sball bear intc:rest at the rate of 10 percent per annum from the date 9f default until the default is cured
or the Note is paid in full. The Note Holder shal1 be entitled to collect all reasonable costs and expenses of collection
and/or suit, including, but not limited to reasonable attmneys' fees.
4. BOII'OweJ: may pn:pay the principal amount oulsbnding under this Note, in whole or in pan, at any time without
pe.nalty or notice.
5. BOlIOwer and all other makers, sureties, guarantors, and eIJdcmers hereby waive PfCsentme!ll, notice of dishonor and
protest, and they hereby agree to any extensions of time of payment and partial payments before, at, or after maturity.
This Note sball be the jl)in, and several obligation ofBolIllwer and all oilier makers, sureties, guatantors and endorsers,
and their successcm and assigxls.
6. A:1J.y notice to BOII'Ower provided for in this Note sball be in writing and sball be given and be effective upon (1)
delively to BolIOwer or (2) mailing such notice by first-class U.S. mail, addressed to Borrower at the Boxrowets address
stated below, or to such other add:t'ess as Borrower may desisnate by notice to the Note Holder. AJJy notice to the Note
Holder sha1l be in writing and. shall be given and be effective upon (1) delivery to Note Holder or (2) by mailing such
notice by first-<:lass U.S. mail, to the Note Holder at the address stated in the first paragraph of this Note, or to such other
address as Note Holder may designate by notice to Borrower.
7. The indebtedness evidenced by this Note is secured by a Deed ofTxust dated the date of this Note, and until released
said Deed ofTnlst contains additional righls of the Note Holder. Such rights may cause Acceletation of thc indebtedness
evidenced by this Note. Reference is made to said Deed ofTrusl for such additional tcims. Said Deed of Trust grants
rights in the propertY identified as follows:
No, NTl>81.11-33.l'ROMlSSORY NOTE.
POll. ton
Initial
JUL-12-02 14,21 FROM,HOLLANOHART
10,8708258415
PAGE
3/5
Lot 6, The Aspen Golf Course Subdivision, ~ to the Fourth P."....,,ipd Plat thereofre<x>rded in Plat Book_
at Page _ in the =onls qfPitkin County, Colondo
(CAUTION: SIGN ORIGINAL NOTE ONLYIRETAlN COpy)
IF BORROWER IS NATtiRAL PEMON(S):
doing business as
IF BORROWER IS CORPORATION:
A TIEST:
Aspen Junior GolfFoundatioll, a ColOIlldo
1lOIlpI'Ofit COl:pOIllUOll
s-..y
by
-
(SEAL)
IF BORROWER IS PA.RTNERSlllP:
~~"
by
G"""[Pal1Dc1
BorroWeI's address: 308 Souli1 HU1ller, Amen. CO 8161 J
KEEP TInS NOTE IN A SAFE PLACE. nmORIGINAL OF THIS NOTE MuST BE EXHIB1T.ED TO THE
PUBLIC TRtJSTEB IN ORDER TO RELEASE A OBlID OFTRtJST~G THIS NOTE.
2963SGIU .J:XX
No-l\'1.'I)81-U-33.l'\lQMJSSORY NOTF_
PagcZof%
w1ial