HomeMy WebLinkAboutresolution.council.005-03 RESOLUTION NO. ~
Series of 2003
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING AN AGREEMENT
OF PURCHASE AND SALE OF THE ASPEN MUNICIPAL GOLF COURSE; A RESALE
DEED RESTRICTION, AGREEMENT, AND COVENANT; AND, A JUNIOR GOLF
FACILITIES LICENSE AGREEMENT, AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID DOCUMENTS ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council an Agreement of Purchase and
Sale of the Aspen Municipal Golf Course; a Resale Deed restriction, Agreement, and Covenant;
and, a Junior Golf Facilities License Agreement, all relating to the sale of the City owned property
commonly referred to as the "Old Pro-Shop" to the Junior Golf Foundation; 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 then existing
pro shop to the Aspen Junior Golf Foundation; and
WHEREAS, the City Council has determined that it is in the City's best interest to sell the
"old golf pro-shop" to the Aspen Junior Golf Foundation on terms and conditions as set forth in the
above referenced documents.
NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
That the City Council of the City of Aspen hereby approves that certain Agreement of
Purchase and Sale of the Aspen Municipal Golf Course; that certain Resale Deed Restriction,
Agreement, and Covenant; and, that certain Junior Golf Facilities License Agreement, in
substantially the forms as appended hereto as exhibits, and directs the City Manager to execute on
behalf of the City of Aspen all requisite documents to sell the above referenced property..
Dated:
HeldX~in~la~~--
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
tree and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado. at a meeting held ~ ('O , 2003.
~ 'rathryn S. Koq~,, ~i~y Clerk
JPW-O1 17 2003-G: john\word resos jr~olfsale.doc
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AGREEMENT OF PURCHASE AND SALE
OF THE
ASPEN MUNICIPAL GOLF COURSE PRO SHOP
AGREEMENT, made and entered on this ~'"~=~/~,t~..,9r /t~) ,2003, by and
THIS
bet;veen the City of Aspen. a home role municipal corporation ("Seller"), and the Aspen Junior
Golf Foundation, a not-for-profit organization incorporated in the State of Colorado
("Purchaser").
WHEREAS, the Seller has built 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 ro the terms and conditions set forth in this agreement
and the Resale Deed Restriction. Agreement and Covenant 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 wit?_ 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 in cash or certified funds at
Closing subject to closing prorations and adjustments as herein described. At closing, Seller
shall also execute and deliver to Pumhaser a License Agreement covering the driving range,
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putting green and sheds historically used by Aspen junior Golf, in the form attached hereto as
Exhibit C.
4. EVIDENCE OF TITLE. Seller shall furnish to Purchaser, ar Seller's sole cost and
expense, a current ALTA comm~tmem for owner's title insurance on the Property in an amoum
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 mount 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 by the Public Records. Seller shall deliver to Purchaser, on
or before the date set for providing Title Documents, n-ue copies of ali 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 sho~vn 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 Pumhaser's notice by 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. PROPERTY
OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND
EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE
CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE
SUCH INDEBTEDNESS WIYTHJOUT SUCH AN INCREASE IN MILL LEVIES. PURCHASER SHOULD
INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHRORIZED GENERAL
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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 d/strict and Purchaser desires
to terminate this contract as a result, if written notice is g~ven 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 hereto.
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 m, 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.
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
- anyportion 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 prowsion of any law, order, rule or
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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 parry, or by which it or any portion of the Proper~y 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 anv 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 sratemem furnished ro 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 A~reement. There are no other agreements, oral or written,
which affect the Property, which will survive the :losing, except as disclosed by Seller provided
to the Purchaser pursuant to this Agreement.
i. Environmental Matters. The Seller has not placed any hazardous materials
on the Property and to the best of the Seller's knowledge, the Property has never 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 represems 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, and 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
defined 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 19813, as amended (42 U.S.C. Sections, 9601, et
seq.) the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et
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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, er seq.,) C.R.S. 1973 Section 25-17-101 er seq., as amended, and
C.R.S. Section 25-15-101, etseq.
j. Title. Seller has good and merchantable title ro the Property free and
clear of all monetary liens and encumbrances (except those ro 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 pr/or to closing, the Property will be
rezoned "Public," which allows private non-profit uses that provide a community service as
Permitted Uses.
m. Legally 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, accoumants and other
professional services and all sales, use, transfer and similar taxes, if any, payable in connecti(~n
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.
8. DOCUMENTS AND SERVICES. The parties hereto shall stgn and complete
all customary or required documents at or before closing.
9. POSSESSION. Possession of the Property shall be delivered to the Purchaser at a
mutually convenient date and time, but no later than on the date of Closing. If Seller after
closing, fails to deliver possession on the date herein specified, Seller shall be subject to eviction
and shall be additionally liable for payment of $500.00 per day as liquidated damages from the
date of agreed possession until possession is delivered.
t0. TIME OF ESSENCE/DEFAULT/REMEDIES Time ~s 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:
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a. IF THE PURCHASER IS IN DEFAULT. then Seller may elect to treat this
Agreement as canceled, in which case ail payments and things of value paid hereunder shalI 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 rome 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 ali 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 parry its reasonable
costs and expenses, including attorneys and expert witness fees.
11. SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES.
The covenants, representations, warranties and indemnifies 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 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 of 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 signmg 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 shaI1 be governed by and be construed in
accordance with the laws of the State of Colorado and the parties hereto hereby consent to the
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exclusive jurisdiction of the Colorado state courts in the event of any controversy or suit arising
hereunder.
17. SEVERABILITY. If any provision of this Ageement is held by a court of
compe~em jurisdiction to be invalid, void or unenforceable, the remmnder of the provisions of
this A~eemem shall remain m 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 paymems, 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
With a copy to the City Attorney at the same address.
To Seller: Aspen Junior GolfFoundation
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.
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CITY OF ASPEN:
By: ~rl?a ~~1~ Date 7"'t/~P ~ g~ 3
THE ASPEN JUNIOR GOLF FOUNDATION
By: ~
~ ~?/~J Er,;& ~?,~t,4 Date
Title: ,~o - ~ ~,. ~ q ~
RESALE DEED RESTRICTION,
AGREEMENT, AND COVENANT
THIS RESALE DEED RESTRICTION, AGREEMENT, AND COVENANT (the
"Agreement") is made and imposed this day of , 2003. 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, and for the further benefit of Emie Fyrwald "(Lender").
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 fixtnres associated therewith shall hereinafter be
referred to as the "Property"; and
W-14EREAS, 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 mount 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; and
Vv-I-IEREAS. Lender is the holder of a Promissory Note executed by Owner m the
original principal mount of $125,000 (the "Note"), the proceeds of which loan were used by
Owner to purchase the Property from the City of Aspe!a; and
WHEREAS, the City of Aspen is willing to agree to repurchase the Property from Owner
in the event Lender notifies the City of Aspen that the Owner is in default in the repayment of
the Note, and Owner is willing to reconvey the Property to the City of Aspen in such event, upon
the terms hereinafter set forth.
NOW, THEREFORE, for value received as described above, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1 In connection with the pumhase of this Property, Owner agrees ro 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 Lender, 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. Ln the event that the Property is sold to City of Aspen or tis designee pursuant to
this Agreement, the Property shall be sold for an amount equal to:
The Owner's purclsase price of $225,000.00, 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 made after the date of closing.
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 applicable3 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 rear shall not be deducted from the sales price othervase
computed hereunder. In the City's sole discretion, $5,000.00 may be
withheld m the time of resale pending a determir~ation of all repair and
replacemem 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.
CITY REPURCHASE UPON OWNER DEFAULT ON LOAN
6. In the event Lender provides written notice to the City of Aspen that the Owner is
in default in the repayment of the Note. the City of Aspen agrees to repurchase the
Property from Owner, not more than 90 days from the date of receipt of such
notice, at the purchase price established by this Agreement and pursuant ro the
other provisions set forth in Paragraph 5 above. The repurchase proceeds shall be
applied first to the repayment in full of the Note and all interest accrued thereon,
and the remaining proceeds shall be delivered to Owner. In the event of Owner's
default under the Note, Owner agrees [o reconvey the Property to the City of
Aspen at the price and on the terms set forth above.
USE RESTRICTION
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
un_reasonably 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.
8. 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.
9. Each party shall be responsible for the payment of that party's respective
customary closing costs and prorations.
10. There is hereby reserved to the parties hereto any and ali 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 ali provisions of this Agreement. the
prevailing party shall be entitled to recover damages and costs, including
reasonable attorney's fees.
11. 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 ail purposes, shall be deemed to include and incorporate by this
reference, the covenants herein contained, even without reference herein to this
Agreement.
12. 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 Agreemem or a mandatory injunction requiting sale of the
Property by Owner. The costs of suck sale shall be taxed against the proceeds of
the sale with the balance being paid to the Owner.
13. 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
wnrten nouce 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
14. Notices. Any nor:ce, consent or approval which is required to be given hereunder
shall be given by mailing the same, certified mail, remm 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
part/es to this Agreement. Said notices, consents and approvals shall be sero to
the parties hereto at the following addresses unless otherwise notified in writing:
To Owner: Aspen Junior Golf Foundation
308 S. Hunter
Aspen, CO 81611
To Aspen: City Manager
130 South Galena Street
Aspen, Colorado 81611
To Lender: Ernie Fyrwald
308 S. Hunter
Aspen, CO 81611
15. Exhibits. All exhibits attachg-d hereto, if any, are incorporated herein and by this
reference made a parr hereof.
16. Severabilit¥. 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 provismn of any of the foregmng 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.
17. 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.
18. 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.
19 Waiver. No claim of waiver, consent or acquiescence with respect to any
provision of this Agreement shall be valid against any parry hereto except on the
basis of a written instrument executed by the parties to this Agreement. However,
the parry for whose benefit a condition is inserted herein shall have the unilateral
right to waive such condition.
20 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 prowsions 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: Aspen Junior Golf Foundation, a Colorado
nonprofit corporation
By:
Jack Brendlinger, Co-Chairman of the
Board of Directors
STATE OF COLORADO )
County of Pitkin )
The foregoing instrument was acknowledged before me this day of
., 2003, by Jack Brendlinger as Co-Chairman of the Board of
Directors of'Aspen Junior Golf Foundation, a Colorado nonprofit corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
My commissmn expires:
Notary Public
LENDER:
Emie Fyrwald
STATE OF COLORADO )ss
COUNTY OF PITKIN)
The foregoing instrument was acknowledged before me this day of
., 2003, by Emie Fyrwald as Lender.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
Notary Public
ACCEPTANCE BY THE CITY OF ASPEN
The foregoing grant and its terms are accepted by the City of Aspen.
CITY OF ASPEN, COLORADO
By: ~
14ele~n t(al~ K/[~r~, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
STATE OF COLORADO )
) SS.
County of Pitkin )
The foregoing instrument was acknowledged before me this ,'C~ ~ day of
, 2003, 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.
JPW-03/10/2003 -G:\john\word/a~\j uniorgolf-deedrest-2-10-03 .doc
EXHIBIT A
LEGAL DESCRIPTION
Lot lB of the Aspen Golf Course Subdivision, according to the Fourth Amended Plat
thereof recorded in Plat Book (~3 at Page /,~ ~ in the Office of the Clerk and
Recorder of Pitkin County, Colorado, being in the City of Aspen, Pitkin County,
Colorado
EXHIBIT B
LEGAL DESCRIPTION
Lot lB of the Aspen Gc If Course Subdivision, according to the Fourth Amended Plat
thereof recorded in Plat Book _(~ at Page ~ ~ in the Office of the Clerk and
Recorder of Pitkin County, Colorado, being in the City of Aspen, Pitkin County,
Colorado
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 Gol/~ Course Subdivision,
according to the Fourth Amended Plat thereof recorded /~1~ ,2002 in Plat Book
1~'5 ar Page ~f¢' in the Office of the Clerk and Recorder o'f Pitkin County, Colorado;
and
WItEREAS, 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 consideratmns, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Grant of License; Reserved City Use. City hereby grants to Junior Golf
a license to use the Junior Golf Facilities on Lot 1 of the Aspen Golf Course
Subdivision ~n 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 and 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
either before or after the regularly scheduled Aspen Jr. Golf Program. Aspen Ir. 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 J'unior Golf and Junior
Golf shall have the non-exclusive use of the putting green During the times that Junior
Golf is 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 h~rein shall have an initial term of twenty (20)
years from the date of this License Agreemem 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 Ir. Golf of $2,800.00 per season.
(Beginning in October 31, 2009, and every year thereafter, the $2,8000.00 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 ro 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 lunior 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
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 Iunior
Golf or City.
6. Counterparts; Facsimile Signatures. 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
cQsts incurred in.connection therewith.
8. Binding 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 g6verned 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 Ay,~ado
JUNIOR GOLF: Aspen Junior If Foundation
By:_ Ernie Fy~d/, President
3
STATE OF COLORADO )
) SS.
County of Pitkin )
The foregoing instrument was acknowledged before me this r(bkk day of
[~04:'¢,~ ,2003, by Helen Kalin Klanderud as Mayor of the City of
Aspen, Colorado.
WITNESS MY HAND AND OFFICIAL SEAL.
O res: 1'-7, 2DOd,
lq. ota~ Public,~' ~ ~
STATE OF COLORADO )
) ss.
County of Pitkin )
The foregoing instrument was acknowledged before me this day of
_, 2003, by Emie Fyrwald as President of the Aspen Junior Golf Foundation.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
Notary Public