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HomeMy WebLinkAboutresolution.council.021-98 (Series of 1998) A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO, AUTHORIZING AN AMENDMENT TO A CONTRACT TO BUY AND SELL REAL ESTATE FOR THE PURCHASE OF PROPERTY COMMONLY KNOWN AS THE YELLOW BRICK SCHOOL BUILDING; APPROVING A CONTRACT TO BUY AND SELL REAL ESTATE FOR THE PURCHASE OF PROPERTY COMMONLY KNOWN AS THE MOORE PLAYING FIELDS; APPROVING THE EXECUTION OF AN INTERGOVERNMENT AGREEMENT BETWEEN THE CITY OF ASPEN AND THE ASPEN SCHOOL DISTRICT RELATING TO THE JOINT USE AND MANAGEMENT OF THE MOORE PLAYING FIELDS AND THE FOOTBALL FIELD; APPROVING THE LANGUAGE OF DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS OF THE MOORE PLAYING FIELDS; APPROVING THE LANGUAGE OF DECLARATION OF COVENANTS, CONDITIONS, AND RESTRCITIONS FOR THE MOORE FAMILY PARCEL "A" SUBDIVISION FOR ESSENTIAL COMMLrNITY FACILITIES EXEMPTION PLAT LOT 1; AND, AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE ALL REQUISITE DOCUMENTS TO CONSUMMATE THE PURCHASE OF THE PROPERTHiS COMMONLY KNOWN AS THE MOORE PLAYING FIELDS AND THE YELLOW BRICK SCHOOL BUILDING. WEREAS, the City Council did authorize the City Manager by Resolution No. 67, Series of 1995, to execute that certain Contract to Buy and Sell Real Estate between the City of Aspen and the Aspen School District for the pumhase of real property commonly referred to as the Yellow Brick School Building in Aspen, Colorado; and WHEREAS the City manager did execute said contract on behalf of the City of Aspen on September 26, 1995, a copy of which is appended hereto as Exhibit "A"; and WHEREAS, pursuant to the authority granted to the City Manager by Resolution No. 67, Series of 1995, the City Manager executed a certain First Amendment to Contract to Buy and Sell Real Estate on August 30, 1997, a copy of which is appended hereto as Exhibit "B", and WHEREAS, a condition of the said contract and subsequent amendment between the City of Aspen and the School District was an agreement between the parties for a mutually satisfactory joint use and management agreement for the use of the Moore playing fields and the School District' s football field; and WHEREAS, the parties have negotiated a mutually satisfactory joint use agreement as contemplated by the said contract and subsequent amendment, a copy of which is appended hereto as Exhibit "C', and WHEREAS, a condition of said contract was the purchase by the City of Aspen from the James E. Moore Family Limited Parmership a portion of the meadow area designated as bail fields in the Moore Family PUD application then pending before the Pitkin County Board of County Commissioners (the "Moore Playing fields"); and WHEREAS, the City and the James E. Moore Family Limited Partnership have negotiated the terms and conditions of a Contract to Buy and Sell Real Estate for the Moore Playing fields, a copy of which is appended hereto as Exhibit "D", and WHEREAS, the James E. Moore Family Limited Partnership has, as a condition of the sale of the Moore Playing fields, requested that the City accept the property burdened with certain deed restrictions (a copy of which are appended hereto as Exhibit "E") relating to the future use of the fields; and WHEREAS, in order to settle a legal dispute known as Pitldn County District Court Case No. 97-CV-134-1 the James E. Moore Family Limited Parmership was required to burden the Moore Playing fields with certain restrictions prior to their conveyance to the City (a copy of which are appended hereto as Exhibit "F"), and WHEREAS, the City Council has determined that those above described deed restrictions are acceptable to the City in order to consummate the contracts to purchase the Yellow Brick School Building and the Moore Playing fields. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1 The City Council does approve and hereby ratifies the execution by the City Manager of that certain First Amendment to Contract to Buy and Sell Real Estate (Exhibit "B"). Section 2 The City Council does hereby approve and hereby ratifies the execution by the City ManAger of that certain Intergovemmental Agreement Between the City of Aspen and the Aspen School District Relating to the Joint Use and Management of the Moore Playing Fields and the Footbail Field (Exhibit "C") . Section 3 The City Council does hereby approve that certain Contract to Buy and Sell Real Estate between the James E. Moore Family Partnership, LLLP as Seller and the City of Aspen as Buyer for the pumhase of the Moore Playing fields (Exhibit "D") and hereby authorizes the City Manager to execute the same on behalf of the City of Aspen. Section 4 The City Council does hereby acknowledge that prior to closing on the purchase of the Moore Playing fields, the James E. Moore Family Partnership, LLLP shall record against the property that certain Declaration of Covenants, Conditions, and Restrictions for the Moore Family Parcel "A" Subdivision for Essential Community Facilities Exemption Plat Lot 1 (Exhibit "E") and that certain Declaration of Covenants, Conditions Restrictions and Easements of the Moore Ball Fields (Exhibit "F"). 3 CONTRACT TO BUX AND SELL REAL ESTATE THIS CONTRACT, made and entered on the date hereinafter set forth lay and between the City of Aspen, a municipal corporation and home role city, hereinafter referred to as the "Purebasel'", and Aspen School District No. 1, previously kn~own as School District No. I and the Pitkin County School Board, hereinafter referred to as the "Seller". WITNESSETH, that whereas the Seller wishes to sell the parcel of land and building commonly referred to as the Yellow Brick School Building in Aspen, Colorado,. hereinafter referred to as the "Property"; and WHEREAS, Purchaser desires to buy said Property and retain it for day care, education, and other community uses. NOW THEREFOR, Seller and Purchaser, for the consideration hereinafter set forth, agree as follows: 1. PARTIES AND PROPERTY. Purchaser agrees to buy and the Seller agrees to sell, on the terms and conditions set forth below, the following described real estate property situated in the County of Pitkin, State of Colorado, to wit: LotsA, B,C,D,E,F,G~H,I,K,L,M,N,Q,R, andS of Block 57 CITY AND TOWNSITE OF ASPEN. County of Pitkin, State of Colorado. 2- INCLUSIONS. The purchase price includes the following items: (a) if attached. to the Property on the date of this contract: lighting, heating, plumbing, ventilating, and air conditioning fixtures, TV antennas, water softeners, smoke/fire/burglar alarms, security devices, inside telephone wiring and connecting blocks/jacks, plants, mirrors, floor coverings, intercom systems, built in kitchen appliances, and sprinkler systems and controls; and (b) if on the Property whether attached or not on the date of this contract: storm doors and windows, window and porch shades, awnings, blinds, screens, curtain rods, drapery rods, heating st6ves, all keys, telephones, fire extinguishers, clocks, basketball backboards, laboratory equipment and fixtures, lockers, and any other similar property,. The above described items (Inclusions) are to be conveyed to Purchaser by Seller by bill of sale at the closing, free and clear of all taxes, liens and encmnbrances, in an "as is" condition. 3. CONSIDERATION. The total purchase price for the property shall be Three Million One Hundred Twenty Three Thousand Seven Hundred Fit~ Doll rs ($3,123,750.00), payable in the following manner: (a) One Million Three Hundrec~g~2o~2and U.S. Dollars ($1,320,000.00) in cash or certified funds at closing; (b) a promissory note in the amount of $200,000.00 in a form substantially similar to the document appended hereto as Exhibit "A"; and (c) the value of the consideration of the conditions set forth in this contract which the parties 1 uo!~do s,~os~ncI '~u~solo ]o ~a~p ~lqeuosgoa osn II~Hs 2oIIoS '~u~soI3 jo ~]~p oq] ~2oj~q ao uo ]u~ s,~iloS ao 2oII~S o] ~s~q32na ~q uOA~g s~ (s)13o~op Jo o~pou lou s~ ~IlP s,~oll~S po~d ~ou~H~a ana ~ll~ ~q] ~lJ~ ~u~s~e ~o Eu{~e~dd~ lsa~ suo~]~puoo It~qs lug~]~oo ~ou~nsu~ o:1 uo~tdo sl~ ~s~o~x~ m s~uH~p ~0 .'poI:~~ a~u~{i~Q ~nQ ~II~ ~ql ~o Xep lseI ~ql 3o "m'd ~ooIo.o 00:~ Xq 12afqo m si{eg 2oseqo2nd 3I '~oseq~2M m ql~q~oJ pou:moa ~q IIeqs 2~pun~2~q poA~oo2 ~nl~A Jo s~u~ pu~ slu~mX~d ll~ pue '2~pun~:~q suo~l~Hqo Ii~ mozj pos~ai~ oq lI~qs X~ed qog~ 'lo~ p~e ~o~o~ 29~ ou Jo pue p{oA .pue IInu ~q II~qs ~oez~uoD s~ 'uo~ldo s,~seqo2~ 1~ uoql '~lqeuo~lo~[qo sm~p :~seqo~~ qo[q~ ]eql ~an3 o2 ~d~ol~ ~o ~inv ol s~u[13~p :oIl~S ~{ pu~ '~I1~1 ~I1~1 ~ql u~ poto~8~a ol ]~a ~ql ~A~q liars 2~seqo~ '(,,po~:od ~au~g~i~Q '~nG ~I~L, ~q~) lu~oo ~u~an~ oI1~1 ~o aoseqD~nd '~ qde~e2~d s~ oi ooue2nsu! aIl~l ~2o]~q ao uo luaml~o3 II~ Jo sa{doD X~odo]~ o~ ~o pue lsoo ads s,a~iD 'oPe2oloD 'uodsv ~o ~l~su~o~ pE h{D ~qa u! 'L~ ~oola '~ pue O slpq 's~Hod 2~le~ ~ s,:os~qaznd ql{~ ~3ueHdmoo' Jo uo~]eu~mzol~p s,HounoD uo~leoHdde sa~ Pz~oa XlunoD u~ oql u~ pomos~ad~2 s~ sndmeo ~m o1 pue 'd~qs~aulzed ~ pu~ 2~1ioS u~l~q p~l~{log~u ~q ol suo~/~uo~ pug s~l uodn a~lloSol ~e~p~o3 ss~ pu~ eo~e ~d o23~ Z e ~aAUOD 01 'z~II~S .:o~ a~un ~u!snoq ~oIdm~ ~p~Ao2d o~ $u'~aeloa d!qs~uaa~d p~l!mlq ~i!m~d ~aoo~ 'H s~m~f ~ql pue 2glI~S u~g~agq 'a~lloS o1 ~olDejs!]~s '/u~moa~e uo]~!~ ~ u!~qo ileqs ~ilaS ,~u!sol3 o] ao!~d (q 'opeaolo3 %unoD ul]~ld 'uadsV ~o s,aaIt~S aaseqa2nd '~oqe '(P)E qd~2ge~ed ql!~ a~uep2o33e u! sa!lJed ~ql Xq and upon written notice to Seller or Seller's agent on or before the date o~[ closing,: ire date of closing shall be extended thirty (30) days for the purpose of correcting said defect(' ~rf title is not rendered merchantable by the extended date of closing, in Purchaser's sole discretion, then at Purchasers' option, this Contract shall be null, void and of no further force and ~'.~%ct, each party hereto shall be released from all obligations hereunder, and all payments a!nc things of value received hereunder shall be returned forthwith to Purchaser. 6. CONDITION OF AND DAIVlAGE TO PROPERTY. The Property anO ,r. nclusions shall be conveyed in their present "as is" condition, ordinary wear and tear excepfed. In the event the Property shall be damaged by fire or other casualty before the date of closing, Purchaser shall be entitled to a credit for all the insurance proceeds paid to Seller resulting from such damage to the Property and Inclusions. not exceeding, however, the total purci:lrtse price. Should any Inclusions fail or be damaged between the date of this contract and the date of closing, then Seller shall be liable for the repair or replacement of such Inclusions wi. th units of similar size, age and quality, or an equivalent credit, less any insurance proceeds received by Purchaser covering such repair or replacement. 7. COVENANTS. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby covenants, represents and warrants to Purchaser the following, all of which slqall be true, accurate and complete as of the date hereof and shall survive the closing: (a) Status and Authority. Seller has the fight, legal capacity and authority to enter into and perform its obligations' under this Contract, and the documents to be executed and delivered pursuant thereto. (b) No Liabilities. Excepting that certain lease agreement between Seller and the Early Learning Center, Inc, dated March 20, 1995, prior to or at the time Of closing, Seller shall pay, or otherwise secure the release of, every debt, account payable, liability or obligation of 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 Contract 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 in.rerests in, management of, or other activities with respect to, the Property. Seller is not in d'ef~ault of any order of any court, arbitrator or governmental body respecting the subject Property (d) Environmental Matters. To the best of the Seller's knowledge, the Properl:y, including related soils, water and groundwater, is not contaminated by, and has never been used for, the generation, transportation, treatment, storage or disposal of any hazardous sut~stance or environmental pollutant(s). Seller hereby discloses that asbestos or asbestos products ~re present in the building as described in that'certain report entitled "Inspection Report and Management Plan" written by Asbestos Consulting Service and which Purchaser has had an oppc~rtunity to review. (e) No Notice of Violation. Seller has no knowledge of and has received no notice of any pollution, health, safety; fire, environmental, sewerage or material building code violation 'with respect to the Property or any portion thereof which has not been cured. (f) No Conflict. To the best of Seller's knowledge, the execution and delivery of this Contract 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 ether 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 Contract. (g) True and Correct Information. To the best of Seller's knowledge, no document, certificate or written statement furnished to Pumhaser and its agents by or on behalf of 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. (h) Use of ProperW Pending Closing. Between the d_ate of this Contract and the Qlosing date. Seller: (i) Shall maintain the Property in its current condition, normal wear and tear excepted; (ii) Shall conduct all operations affecting the Property in the ordinary course of business, and in the manner that the operation(s) have been conducted to date; (iii) 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; and (iv) Shall continue to fulfill its obligations under that certain Lease Agreement between Seller and the Early Learning Center, Inc. , dated Mamh 20, 1995. (i) No Other Contract. There are no other contracts or agreements, oral or written, which affect the Property which will survive closing, except as disclosed in the title insurance policy as provided Purchaser pursuant to paragraph 4 above, and that certain Lease Agreement between Seller and the Early Learning Center, Inc., dated March 20, 1995. 8. INSPECTION. Seller hereby extends to Purchaser and/or its agents or representatives the right to full and free access to the Property upon reasonable ~:otice to Seller during reasonable hours io make investigation and inspection of the premises. Purchaser's completion of any such inspection or investigation shall not constitute a waiver by Purchaser of any of Seller's representations or warranties contained in this Contract. Purchaser agrees to indemnify, 'defend and hold Seller harmless against any mechanic's lien or other claims or 5 9 'aoans~oa& XmnoD u!>tl!d ~ql ,(q poaed~ad qloq 'onp soxm Alaodoad leuOsaod Jo lu~mm~ls e pue X1jodoad ~qa ~UpOAOO onp S~Xm 'aoIl~S pue aos~qv2n8 Xq $u~soIa le ~l[~nb~ po~eqs ~q Ileqs pue 00'00~$ poovxo lou IIeqs s~D~s ]U~tU~IllOS pU~ ~ulsoIv ~1~2S~ IE~] JoJ s~d po2~nb~2 2o ~emolsn3 tie oloIdmo3 pue u$}s IIeqs aoIIoS pue a~seqDand (q) 'u!~a~q p~plAo2d ~s}~a~qlo s~ 'S~3IA~S GNV S~N~flDOG 'SZSO3 9NISO~D sox~a ~oJ~ o~mso Ie~ Ile pue Au~ Jo auomAed oql ~oj olq~suods~a ~I~Ios ~q Ile~s · ~u~sop jo o~p ol pole~oad oq [t~qs 'Xue j~ 's~oueaqmnouo uo ls~]u~ pu~ 'sonp uo~le}3osse p~s~q '~u~sopJo 2eoX ~q] JoJ sox~] Xn~doJd I~Jou~9 'S~XVZ dO NOI~VDO~]V 'ZI '~32nos Joq]o ~HE mo~J ~o Knodo2d ~ uodn o3uE2qmn3u~ ~uV 'SHDN~a~DNH ~O LN~XVa 'II ,~, · 13~21uoD s~ jo ~A~ qdE]~E~Ed jo suo~l~puo3 pile ~3u~2nsu~ ~II~] p~lnD~x~ XII~ e 'a~s~qo~nd ol 2~AH~p pu~ 'loJ smn~a2d pue slsoD I1~ Xed ol s~ ~olioS 's~ep (06) X2~u~u pao~x~ ol lou ~ Jo pop~d ~Iq~os~ e uNI}~ 'olqmueq32a~n ~I1~1 29puoj 'uo~l~lDs~p olq~uos~oz s,iaseq3lna u~ 'lou op qD~q~ lu~l}~o3 ~ iq p~sol3s~p ~soq~ld~ax~ s~3ue~qmnau~ pu~ ~I lie Jo 2s~ID pue ~2J pue :lou ao possosse 2oql~ '~u~sola Jo o]~p o~l Jose P~llm~ sauomo~o2dm~ lep~ds aoj such 1I~ Jo 2~olD pue otdm s ~ ~u~K~Auoo 5u~solo 1~ poop Xlu~ [~2ouoZ lu~o~Jns pu~ pooE E I~A~IOp pUE olnoox~ p~}nbo:~ s~ ~u~solo uo ~uomX~d ~o lopuol o] lDofqnS '~ili ~O X~]AI33G '0I 'oAOqe '[ qde2~2ed ]~ qlaoJ los SUO~l}pCfr.~'~ O~ II~ Jo UO~IO~JS~IES ~ ZU~O[IOJ SXEp (0I) uO] UE~ I~IEI lUQAQ OU U~ ]nq '~9eld pu~ qa~oJ 1~ Klsno~o~d s~ suo~l~puoD oql o] ]ooCqnS '9NISO~D ~O ~iVG '6 'IDE/lUOD S~HI gO O]~p QA~lOgJj~ ~ JO SXEp (0[) ~q] U~q]~ 2oseqD~nd Kq poS}Dl~x~ oq II~qS U~QIQq L!~.]O~ los uo~lDodsu~ go lq~J Qqi 'uo~lD~dgu~ S,J~SEqDjnd ~q poSnED Klole~xo]d XlJodo~d oql o3 o~m~p ~o ~n[u~ Jo luo~o oql u~ 2~II~S ~mopu~ ol s~o2Z~ ~oseqo~nd pue 'Xl.~odo,M ~q] Jo Bo~.loQdsu~ s,lQsEqa2nd Jo llnso~ e se sluo~E s,2oseqD~M Kq poUoss~ oq K~m ]Eq] spuEmop g 26. RECEIPT OF'ACCEPTANCE/BXNDING CONTRACT. If this offer is accepted by Seller in writing, and Purchaser receives ar~ executed counterpart hereof on or before 5:00 p.m. on September 28, 1995, this instrument shall become and be deemed a binding Contract between Purchaser and Seller, subject to the conditions set forth herein. PURCHASER: CITY OF ASPEN C r Date ATTESTED By: ~ ff~ SELLER: ASPEN SCHOOL DISTRICT NO. 1: ATTESTED yel[owbk con / 9 FIRST AMENDMENT TO CONTRACT TO BUY AND SELL REAL ESTATE This FIRST AMENDMENT is entered into as of August ,3c~, 1997, between the CITY OF ASPEN ("Purchaser") and ASPEN SCHOOL DISTRICT NO. 1 ("Seller"). Recitals A. Purchaser and Seller are parties to the Contract to Buy and Sell Real Estate dated September 26, 1995, (the "Contract"). B. Purchaser and Seller now desire to amend the Contract as set forth herein. Amendment NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Purchaser and Seller agree as follows: i. Consideration: Paragraph 3(b) is hereby amended in its entirety to read as follows: Purchaser agrees to construct on the property described at paragraph 3(a), above, subject to the approval by the Pilltin County Board of County CommissiOners, two (2) softball/baseball diamonds as soon as practical, but no later than two (2) years from the date of closing. The parties understand that construction of the athletic fields will be most practical when the Moore property is under construction following development approval by Pitkin County. 2. Consideration: Paragraph 3(d) is hereby amended in its entirety to read as follows: Prior to closing Purchaser and Seller shall enter into a mutually satisfactory joint use and numagement agreement for the perpetual use by Seller and Purchaser of the athletic fields described in paragraph 3(a), above, and an agreement for the joint use by Seller and Purchaser of Seller's football field adjacent to the Seller's Middle School building complex. Purchaser and Seller shall mutually agree on the design of the two (2) sofball/baseball diamonds and appropriate supporting facilities prior to the design and construction. Seller hereby acknowledges receipt of a document entitled "Restrictions on Use of Moore/City Baseball Fields" which lists certain deed restrictions that will be placed by Purchaser upon closing on the use of the athletic fields described in paragraph 3(a), above. Seller further agrees that the use and management agreement contemplated by this paragraph shall incorporate, where appropriate, the above referenced deed restrictions. PURCHASER: CITY OF ASPEN ~: ~...~+,-~-~ q/q/~'? M M, Date Title: ~5,7 ~ ATTESTED By: ~/fl~ SELLER: ASPEN SCHOOL DISTRICT NO. i: Pr Date ATTESTED yebk-amd.con INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ASPEN AND THE ASPEN SCHOOL DISTRICT RELATING TO THE JOINT USE AND MANAGEMENT OF THE MOORE PLAYING FIELDS AND THE FOOTBALL FIELD THIS JOINT USE AND MANAGEMENT AGREEMENT ("Agreement"), is made and entered into as of this t]72~ day of 5L~'~/'~:'/'-~/~:~2. , 1997, by and be- tween the CITY OF ASPEN, COLORADO, a home rule municipal corporation ("City"), and the ASPEN SCHOOL DISTRICT, a political subdivision of the State of Colorado organized under and existing by virtue of the laws of the State of Colorado · ("School District"). This Intergovernmental Agreement is designed and intended to facilitate the continuation of cooperative efforts between the parties in the use of the City owned Moore Playing Fields and the School District owned football field adjacent to the School District's School facilities on Maroon Creek Road (hereinafter referred collec- tively as the "playing fields"). The City and the School District entered into a Contract to Buy and Sell Real Estate, dated September 26, 1995, and thereafter amended by a First Amendment dated , 1997, for the sale of the Yellow Brick School Building. Essential considerations of that contract were commitments by the parties to enter into this Agreement prior to the closing date for the transfer 6f the Yellow BriCk School property. This agreement amends and replaces in its entirety any previous written or oral agreements made by the parties concerning the matters set forth herein. The term of this agreement relating to the Moore Playing Fields shall be for a perpetual period of time. The term of this Agreement relating to the football field shall be for a perpetual period of time or until such time as the School District determines that it needs the football field to construct one or more buildings on the football field to expand its school facilities. MEMORANDUM OF UNDERSTANDING By separate Intergovernmental Agreement (Appended hereto as Exhibit "A") the parties have agreed to annually meet and execute a Memorandum of Understanding which describes the parks, athletic fields, buildings, Or portions of buildings that the parties agree to cooperatively allow each other to use for the forthcoming year. The annual Memorandum of Understanding is intended to assist the parties in the schedul- ing of events in or on publicly-owned facilities and to formally agree on programs to be operated, location, time, dates, user fees (if any), and specific rules of operation. Notwithstanding any conflicting terms and conditions contained in said prior Intergov- ernmental Agreement or any annual Memorandum of Understanding executed by the parties to date, this Agreement shall be binding upon the parties with respect to the use and management of the Moore Playing Fields and the football field. It is the intent of the parties to use the procedure established by the above-referenced Intergovernmental Agreement to annually meet and schedule special events, and agree upon use and man- agement issues not addressed by this Agreement. CONSTRUCTION OF PLAYING FIELDS The City agrees to construct on the property described in the Contract to Buy and Sell Real Estate referenced above, subject to approval by the Pitkin County Board of County Commissioners, two (2) baseball/softball fields as soon as practical but no later than two (2) years of the date of closing of the Contract to Buy and Sell Real Es- tate. The parties understand that construction of the athletic fields may be most practi- cal when the Moore property is under construction following development approval by design and construction. The City agrees to pay for all initial capital costs and fees associated with providing water irrigation services to the property. MAINTENANCE The City agrees to maintain to the City of Aspen standards the Moore Play!rig Fields described above for a period of twenty (20) years. Following the initial twenty- year period, the parties agree to proportionately share in the costs of maintenance ac- cording to use in the costs of maintaining the Moore Playing Fields including the costs of providing water for irrigation. The parties agree to proportionately share in the cost of maintenance according to use in the cost of maintaining the football field including the cost of providing water for irrigation. USE AND MANAGEMENT 1. The School District shall have priority for the use of the playing fields during each annual School Year. The School Year shall be defined for purpose of this Agreement to run from the third Monday of August to the last day of classes at any of the School District's facilities on Maroon Creek Road. 2. The City shall have priority for the use of the playing fields during the remain- der of the year. 3. Other user groups interested in the use of the playing fields shall be required to obtain the permission of the party who has priority use during the period of time other user groups propose to use the facilities. It is contemplated that the parties shall notify each other of known proposed uses by other user groups as part of the annual meeting to review and agree upon an annual Memorandum of Understanding of the sharing of facilities. 4. Other user groups shall not be charged for the use of the daying fields other than reasonable fees to cover any expenses specifically related to the use of the facili- ties. 5. The parties understand that approvai of the development of the Moore Playing Fields and the Moore Family PUD may be approved by the Pitkin County Board of County Commissioners with certain.conditions and restrictions relating to the construc- tion, use, and management of the fields. The parties further understand that certain restrictions set forth as an Exhibit to the Amendment of the Purchase and Sale Contract for the purchase of the Yellow Brick School Building will be placed of record upon the purchase of the Moore Playing Fields. The parties hereby agree to comply with said restrictions. _ INDEMNIFICATION To the extent permitted by law, the School District and the City shall each deumify, defend, and hold the other, and their respective officers, employees, and agents, harmless from claims related to the use of the facilities subject to the provlsions of this agreement. INSURANCE The parties hereto agree to procure and maintain, at their Own expense, a policy or policies of insurance sufficient to ensure against all liability,. claims, demands, and other obligafi, ons assumed by the parties by entering into this agreement. Such insur- ance shall be in addition to any other insurance requirements imposed by law. Neither party shall be relieved of its obligation to indemnify and hold harmless the other party by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. Failure on the part of either party to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of this agreement upon which the other party may immediately terminate this agreement. The parties hereto agree to procure and maintain general liability insurance to the limits of the Colorado Governmental Immunity Act, Section 24-10-101, et seq., C.R.S. The parties understand and agree that neither party waives.or intends to waive by any provision of this agreement or subsequently executed Memorandums of Understanding, the mone- ,~---,, tary limitations, or any other rights, immunities, and protections by the Colorado Gov- ernmental Immunity Act. GENERAL CONDITIONS Neither party may assign any rights or duties imposed by this agreement with- out the prior written consent of the other party. AMENDMENTS This agreement constitutes the whole and complete agreement of the parties and no amendments hereto shall be effective absent the written consent of both parties. RF. SOLUTION OF DISPUTES In the event that a dispute arises concerning any provision of this Agreement that the City Manager and the School Superintendent are not able to resolve to their mutual satisfaction, the parties agree that the dispute shall be resolved by a joint meet- ing of members of the Aspen City Council and the School District's Board, or their respective representatives duly appointed for the purpose of resolving said dispute. CITY OF ASPEN, COLORADO ~ ~ ASPEN SCHOOL DISTRICT ATTEST: MOORE.AGR 4 CONTRACT TO BUY AND SELL REAL ESTATE THIS CONTRACT, made and entered on this day of t99, by and between the City of Aspen, a home role municipal corporation, and the James E. Moore Family Partnership, LLLP ("Seller"). W1TNESSETH, that the Seller wishes to sell the real property commonly referenced as the meadow area designated as ball fields and in the Planned Unit Development application previously pending before the Pitkin County. Board of County Commissioners (hereinafter referred to as Parcel A); and WHEREAS, the City of Aspen desires to purchase Parcel A from Seller;and NOW, THEREFORE, the parties hereto, for the consideration hereinafter set forth, agree as follows: 1. PARTIES AND PROPERTY. The City of Aspen agrees to buy and the Seller agrees to sell, on the terms and conditions set forth below, the following described real estate property situated in the County of Pitkin, State of Colorado, to wit: The outparcel consisting of approximately 16 acres and depicted on Exhibit "A" attached hereto. 2. PURCHASE PRICE AND TER~MS. The total purchase price for,Parcel A shall be Nine Hundred Thousand Dollars ($900,000.00). The purchase price for Parcel A shall be payable in U.S. dollars in cash or certified funds at closing. Purchaser shall pay within 48 hours of the time of the final execution of this agreement Seller the sum of $1,000.00 paid by Purchaser as earnest money deposit and part payment of the purchase price, payable to and held by , in escrow on behalf of both City and-S.,eller Said sum is to be delivered to the closing agent at Or before closing. 3. CONTINGENCIES. The transactions contemplated herein are specifically contingent upon the following: a. The Pitkin County Board of County Commissioners approves an essential community subdivision exemption for the creation of Parcel "A". b. The City of Aspen provides water service to the subject property upon the terms and conditions set forth in Resolution No. 60, Series of 1995. c. The Pitkin County Board of County Commissioners approves the expenditure of $400,000.00 by the Pitkin County Open Space and Trails Board for a conservation easement on Parcel B (attached hereto as Exhibit "C") and approves the specific language Of the easement. (The parties understand that consideration of the purchase of a conservation easement by the BOCC will require two public meetings. the second of which must be a public heating.) d. The City of Aspen and the Aspen School District are able to consummate the Sale of the Yellow Brick Building as contemplated by the Contract to Buy and Sell Real Estate dated September 26, 1995 as amended by a First A~enc~ment dated August 30, 1997, on or before April 30, I998. The closing for the transfer of the conservation easement referenced in subsection c, above, shall occur at the same time as the closing contemplated by this contract. e. The parties hereby acknowledge that certain restrictions on the use of Parcel A have been negotiated by the City of Aspen and certain residents of the Meadowood Subdivision to settle Pitkin County Case No. 97 CV 134-1. The restrictions on use of Parcet A are appended hemto as Exhibit "B". Prior to closing, Seller shall record a document that complies with its obligations as set forth in Section 20 of said restrictions. In addition, the parties hereby acknowledge that certain additional restrictions on the use of Parcel A, appended hemto as Exhibit "D", shall be recorded by Seller prior to, or immediately following, closing. f. Seller shall provide to City prior to closing a survey of Parcel "A" that conforms in all respects to the Pitkin Coun~ Board of County Commissioner's approval of an · essential community subdivision exemption in accordance with paragraph 3(a), above. g. The parties agree_that the following provisions are conditions of this Contract and shall survive the closing: (1) Commencement of construction on the fields shall be coordinated with the development of the Moore Family PUD school improvements. A minimum of ninety (90) days prior to the initiation of construction, the City shall provide a construction phasing plan. The construction phasing plan shall provide the following information: (a) Start date of construction. (b) A construction Iogistics plan, which shall include areas for storage of equipment, materials, fuel, and sta~ng, as well as construction parking. (c) Proposed access through the Moore PUD. (d) Any proposed storage on property currently owned by the Moore Family. This shall require the written approval of the Moore Family, the Homeowners' Association, and i~s successors in interest. (e) Detailed construction sequencing to include major items such as areas of excavation, fill, revegetation, dust control, traffic control, irrigation and planting. .~,-"-. (2) Any Contractor engaged by the City to perform any construction work on the fields shall be required to indemnify the Moore Family and their successors and 2 /,...,. assigns, as well as the Homeowners' Association, from any damages caused by the negligent performance of the Contractor arising out of the construction of the City' s playing fields. The Contractor shall be required to list Seller as additional insured in any insurance policy required by the City pursuant to .the contract documents for the work to be performed by the Contractor. ; (3) Seller shall have the right to review the construction plans as they relate to grading and the integration of those ~ades into adjoini.ng property held by Seller. The City of Aspen shall consider any reasonable comments or suggestions for changing the construction plans and shall make changes to the construction plans that the City, in its sole discretion determines to be reasonable. (4) The City of Aspen. while constructing the fields, shall adhere to any requirements of the Seller's PUD approval related to construction impacts. (5) The City shalI obtain an earthmoving permit and shall. obtain all requisite approvals from Pitkin County prior to the commencement of construction. 4. EVIDENCE OF TITLE. Seller shall furnish to the City of Aspen, at Seller's sole cost and expense, a current ALTA commitment for title insurance on Parcel A, from a title company acceptable to the City of Aspen, with all standard exceptions concerning liens for labor, service, or materials not of record, and in an amount equal to the purebase price, together with any copies of all instruments listed in the schedule of exceptions of said title insurance commitment on or before ten (10) days prior to the date set for closing at Paragraph 8 herein. The title insurance commitment, together with any copies of instruments furnished pursuant to this Paragraph 4, shall constitute the title documents. 5. TITLE DUE DILIGENCE..MERCHANTABLE TITLE AND CURE OF DEFECTS. For the five (5) business day period next succeeding delivery to the City of Aspen of. title insurance commitment (the "Title Due Diligence Period"), the City of Aspen shall have the right to object, on grounds of merchantability, to the condition of Seller' s title as reflected in the title insurance commitment. Buyer shall not object to merchantability on account of the lawsuit or deed rest'fictions referenced above at paragraph, 3(e) or the BOCC approvals referenced abovE at paragraph 3(f). If the City of Aspen objects to the condition of Seller' s title, and if Seller declines to cure or attempt to cure the City of Aspen' s objections, then at the City of Aspen option, this Contract shall be null and void and of no further force and effect, each party shall be released from all obligations hereunder, and all payments and things of value received hereunder shall be returned forthwith to the City of Aspen. If the City of Aspen fails to object by 5:00 o'clock p.m. on the last day of the Title Due Diligence Period, or declines to exercise its option to terminate, then the condition of Seller's title as reflected on the title insurance commitment shall be deemed acceptable for all purposes unde[ this Contract. If, however, by reason of title conditions first appearing or arising after the Title Due Diligence Period Seller's title is not merchantable in the City of Aspen' s sole and absolute discretion, provided, however, that neither the deed restrictions attached as Exhibit 'fiB" nor the conditions of approval of the Pitkin County Board Of County Commissioner's of the essential community subdivision exemption shall be the basis for objection, and written notice of defect(s) is given by the City of Aspen to Seller or 3 'regulation applicable to Seller or the Properties; (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 Properties may be bound or affected: (3) permit any party to terminate any such agreement or instrument or ~o 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 Properties other than as permitted by this Contract. g. True and Correct Information. To the best of Seller's knowledge, no document, certificate or written statement furnished to the City of Aspen 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. h. Use of Property Pendin~ Closin.~. BetWeen the date of this Contract and the closing date, Seller: (i) Shall maintain the Properties in their current condition, normal wear and tear excepted; (ii) Shall not permit the Properties to be used or operated in any manner that would be in violation of any local, siate or federal law or regulation. i. No Other Contract. There are no other contract or agreements, oral or written, which affect the Properties, which will survive the closing, except as disclosed in the title insurance policy as provided the City of Aspen pursuant to Paragraph 4 above. 7. INSPECTION. Seller hereby extends tO the City of Aspen and/or its agents of representatives the fight to full and free access to the properties upon reasonable notice to Seller during reasonable hours to make investigation and inspection of the premises. The City of ' Aspen's completion of any such inspection or investigation shall not constitute a waiver by the City of Aspen of any of Setler's representations or warranties contained in this Contract. The City of Aspen agrees, to the extent permitted by law, to indemnify, defend and hold Seller harmless against any mechanics lien or other claims or demands that may be asserted by the City of Aspen' s agents as a result of the City of Aspen' s inspection of the Properties, and the City of Aspen agrees, to the extent permitted by law, to indemnify Seller in the event of injury Or damage to the Properties proximately caused by the City of Aspen' s inspection. The right of inspection as set forth herein shall not extend to the fight to remove any trees or vegetation, or the disturbance of any soils without the express written consent of Seller. 8. CLOSING. The parties hereto agree that Closing shall be scheduled no later than ?-.-, thirty (30) days following satisfaction of all of the conditions precedent set forth in Paragraph 3. 9. DELIVERY OF TITLE AND EASEMENT. Subject to tender or payment on closing as required herein and compliance with the other terms and provisions hereof, Seller shall execute and deliver a good and sufficient general warranty deed at closing conveying fee simple title to Parcel A to the City of Aspen and conveying Parcel A free and clear of all taxes except for pro-rata share of taxes for the year of closing; and free and clear of all liens for special improvements installed as of the date of closing, whether assessed or not; and free and clear of all liens and encumbrances except those ~tisclosed by the title commitment which do not, in the City of Aspen's reasonable discretion, render title unmerchantable, and excepting the deed restrictions referenced herein above at paragaph 3(e). Within a reasonable period of time not to exceed ninety (90) days. Seller agees to pay full costs and premiums for, and deliver to the City of Aspen, fully executed title insurance policies consistent with the title insurance commitment referenced in Paragraph 4. 10. ALLOCATION OF TAXES. General property taxes for the year of closing, based on the most recent levy and the most recent assessment, rents, water and sewer charges, owner' s association dues, and interest on encumbrances, if any, shall be prorated to dire of closing. 11. CLOSING COSTS. DOCU~'NIENTS AND SERVICES. a. The parties hereto shall pay their respective closing costs at closing, except as otherwise provided herein. b. The parties hereto shall sig-n and complete all customary or required documents at or before closing. c. Fees for real estate closing and settlement services shall not exceed $500.00 and shall be shared equally at closing by the parties hereto. d. Seller, at its sole expense, shall deliver to the City of Aspen a current certificate of taxes due covering the Properties and a statement of personal property taxes due, both prepared by the Pitkin County Treasurer. 12. POSSESSION. Possession of the Property shall be delivered to the City of Aspen on the date of closing. If Seller, after closing, fails to deliver possession on the date heroin 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. ' 13. 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 notpaid, honored or tendered when due, or if any other obligation hereunder is not performed within the time frames specified heroin; there shall be the following remedies: a. IF THE CITY OF ASPEN IS IN DEFAULT, then Seller may elect to treat this Contract as canceled, in which case all payments and things of value paid hereunder shall be 6 forfeited and retained on behalf of Seller, and Seller may recover such damages as may be proper, or Seller may elect to treat this Contract 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 City of Aspen may elect to treat this Cor~tract as terminated, in which case all money payments and things of value paid hereunder shall be returned forthwith to the City of Aspen and the City of Aspen may recover such damages as may be proper, or may elect to treat this Contract as being in full force and effect, whereupon the City of Aspen 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 Contract, the court may award to the prevailing party its masonable costs and expenses, including attorneys and expert witness fees. 14. SURVIVAL OF COVENANTS. REPRESENTATIONS aND WARRANTIES. The covenants, representations, warranties and indemnities made by the parties to this Contract, 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. 15. ENTIRE AGREEMENT. This Contract 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 Contract. No supplement, modification or amendment of the Contract shall be binding unless executed in writing by the parties hereto. 16. COUNTERPARTS. This Contract may be executed in. one or morn counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 17. BINDING EFFECT. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successor and assigns. The City of Aspen may in its sole discretion, and without the prior consent of Seller, assign all of the City of Aspen' s right hereunder to, or cause title to the Properties to be taken in the name of non-profit nominee(s). selected by the City of Aspen. 18. RECOMMENDATION OF LEGAL COUNSEL. By signing this document, the parties hemto acknowledge the advisability of obtaining the advice of independent legal regarding examination of title documents and the terms of this Contract. 19. GOVERNING LAW. This Contract 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. 7 20. SEVERABILITY. If any provision of this Contract is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated: 2 I. TERMINATION. In the event this Contract 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 City of Aspen. 22. NOTICES. All notices and other communications tendered in connection with this Contract 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 City of Aspen: 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: 'James E. Moore Family Partnership, LLLP. c/o Gideon I. Kaufman 315 East Hyman Avenue Aspen, Colorado 81611 23. CONSTRUCTION OF BALL FIELDS. When the City constructs the balifields on Parcel A, the constrUction techniques shall comply with the dust mitigation and traffic requirements set forth in the Moore Family Subdivision A~eement with Pitkin County as well as the Moore Family Detailed Submission Approvals. The requirements of this paragraph shall survive closing. CITY OF ASPEN: /2 ' ager Date 8 JAMES E. MOORE FAMILY PARTNERSHIP, LLLP Date Title: C_,~C~C~--~u JPW-03/23/98-G:\john\wordXagrXmoo~efld.c[oc 9 DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR THE MOORE FAMILY PARCEL 'A" SUBDIVISION FOR ESSENTIAL COMMUNITY FACILITIES EXEMPTION PLAT LOT I THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE MOORE FAMILY PARCEL "A" SUBDIVISION FOR ESSENTIAL COMMUNITY FACILITIES EXEMPTION PLAT LOT 1 ("Declaration") is made this __ day of , 1998, by the JAMES E. MOORE FAMILY PARTNERSHIP LLLP, a Colorado limited liability limited partnership (the "Declarant" ) . WITNESSETH: WHEREAS, Declarant is the owner of certain real property in Pitkin County, Colorado, known as The Moore Family Parcel "A" Subdivision For Essential Community Facilities Exemption Plat Lot 1, recorded on , 1998, in Plat Book __ at Page __ in the office of the Clerk and Recorder of Pitkin County, Colorado (hereinafter referred to as the "Property" or the "Ballfields" Or the "Fields"); and WHEREAS, as a condition of sale of the Property to the City of Aspen, Colorado (the "City"), for the construction of two baseball fields on the Property to be used by the City of Aspen in conjunction with the Aspen School District. The City will accept the restrictions on the use of the Property as set forth below. NOW, THEREFORE, Declarant does hereby declare that the following terms, covenants, restrictions, easements, uses, limitations, and obligations shall be deemed to run with and be a burden on the Property, and any person or entity acquiring or owning an interest in the Property, and any improvements thereon, and their grantees, successors, heirs, personal representatives, devisees, and assigns. 1. Use of the Property shall be limited to recreational fields located within the area marked as "Athletic Fields Development Zone" on the map, a photo-reduced copy of which is attached hereto as Exhibit "A" and made a part hereof (the "Map"). No other construction or development on the Property shall be permitted 2. The use of drugs and alcohol shall be prohibited, and signs regarding such prohibition shall be posted at each Field. 3. Use of the fields shall be restricted to the hours of 9:00 a.m. to 8:30 p.m., or dusk, whichever is earlier. 4. No bleachers shall be permitted on the south, east, and north sides of the east Field. -1- 5. Snow removal (except for Nordic track maintenance) shall be prohibited on all Fields, except in the spring. 6. The use or operation of a loudspeaker or amplified sound systems on the Fields shall be prohibited. 7. No lighting of any kind will be permitted for any of the Fields. e. Invalidity or unenforceability of any provision of this Declaration, in whole or in part, shall not affect the validity or enforceability of any other provision, or any valid and enforceable part of a provision of.this Declaration. 9. Any notice permitted or required under this Declaration shall be in writing, and delivered either personally or by mail. If delivery is made by mail, it shall be deemed to have been delivered forty-eight (48) hours after a copy has been deposited in the United States mail, postage prepaid, certified mail, and addressed to the party at their last known address. 10. Each provision of this Declaration shall be specifically enforceable by the Declarant by a proceeding for any legal or equitable relief, including a prohibitive or mandatory injunction or action to recover damages. In the event of any litigation between the parties involving the interpretation and/or enforcement of this Declaration, or any provision hereof, the prevailing party shall be entitled to an award of its costs and expenses (including reasonable costs and attorneys' fees) incurred therein as a part of the judgment or stipulated settlement entered in such litigation. ll. This Declaration shall be effective for a period of sixty (60) years from the date hereof, and thereafter shall automatically terminate and be of no force or effect. 12. A successor and assign of the Declarant, as used herein, shall be deemed a successors and assign of the Declarant for the purposes hereof only if specifically designated by the Declarant by an instrument recorded in the records of Pitkin County, Colorado, and only to the particular rights and interests specifically designated therein. IN WITNESS WHEREOF, the Declarant has executed this Declaration as the day and date first above written. DECLARANT: THE JAMES E. MOORE FAMILY PARTNERSHIP, LLLP, a Colorado limited liability limited partnership By Thomas Moore, General Partner -2- ACCEPTED AND APPROVED: ATTEST: THE CITY OF ASPEN ~ By ~ ~~ ~? John tt, Mayor K City Clerk STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 1998, by Thomas Moore, as a General Partner of THE JAMES E. MOORE FAMILY PARTNERSHIP, LLLP, a Colorado limited liability limited partnership. Witness my hand and official seal. My commission expires: Notary Public C:\clients\Moore\ba!lfield declaration -3-- DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS OF THE MOORE BALL FIELDS The James E. Moore Family Partnership, a Colorado parmership CDeclarant"), makes this DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS OF THE MOORE BALL FIELDS effective · 1997. Declarant is the owner of certain real property in Pitkin County, Colorado, more particularly described in Exhibit A attached hereto and incorporated heroin by this reference (the "Property" or "Ball Fields" or ~fields'). Certain individuals ("Plaintiffs") owning property adjacent or near the Property filed a lawsuit against Declarant and the Pitkin County Board of County Commissioners, asserting violations of Plaintiffs' fights associated with the land use approvals granted by the Pitkin County Board of County Commissioners for the proposed development of the Property and other property owned by Declarant as a residential subdivision. Such litigation was known as Pitkin County District Court Case No. 97 CV 134-1. The Plaintiffs dismissed that lawsuit with prejudice in consideration of the recording of these covenants, conditions, restrictions, and easements against the Property. Declarant contemplates the sale of the Property to the City of Aspen, Coloradq ("City"), for the construction of two baseball fields on the Property to be used by the City of Aspen in conjunction with the Aspen School District. The City has reviewed and approved this Declaration and, if the City takes title to the Property, it shall be subject to the covenants, conditions, restrictions and easements contained heroin. NOW, THEREFORE, Declarant does hereby declare that the following terms, covenants, conditions, restfictions, easements, uses, limitations and obligations shall be deemed to run with and be a burden on the Property and any person or entity acquiring or owning an interest in the Property and any improvements thereon, and their grantees, successors, heirs, personal representatives, devisees and assigns. 1. Use of the Property shall be limited to two permanent baseball and/or softball fields located within the area marked as "Athletic Fields Development Zone" on the map, a photo-reduced copy of which is attached as Exhibit B hereto and incorporated heroin by this reference (the "Map"). ' Further, the home plate for each ball field shall be located within the area designated as "posSible locations for home plate" on the Map. The softball and/or baseball fields on the Property may be configured so that the outfields of the two ball fields are combined into one large grass field. The combined outfields may be used for youth-only soccer fields, 1 which fields may not be used for high school football games. Signage shall be installed prohibiting the use of such third field by adults. 2. The use of drags and alcohol shall be prohibited, and signs regarding such prohibition shall be posted at each field. Adult league tea shall be advised at the time of league sign-up that teams or players abusing this condition may be barreed from further play for the season or teams may forfeit games and entry fees. 3. No adult activities shall be scheduled for the fields on Friday, Saturday or Sunday (with the exception of limited special events on Sunday and in the season during which Iselin Park is being repaired, as described in paragraphs 15 and 17), and no youth activities shall be scheduled on Sunday. 4. Adult use of the fields shall be restricted to the hours of 5:00 PM to 8:30 PM or dusk, whichever is earlier. Youth activities scheduled for Saturday shall be limited to the hours of 10:00 AM to 5:00 PM. Youth activities scheduled for Monday through Friday shall be limited to the hours of 9:00 AM to 5:00 PM. 5. To the extent reasonably possible, the sprinkling of the fields shall be timed so as to minimize the unauthorized use of the fields. 6. No bleachers shall be permitted' On the fields. 7. Snow removal (except for Nordic track maintenance) shall be prohibited on all fields, except in the spring. 8. The use or operation of a loudspeaker or amplified sound systems o/i the fields shall be prohibited. 9. The City shall/~/hlta~l the fields consistent with the m~intenance of other playing fields owned by the City. To the greatest extent possible, environmentally sensitive methods of fertilization and pesticides shall be used on the fields. Except for watering the fields, maintenance shall be performed between the hours of 9:00 AM and 5:00 PM on Monday through Friday. 10. Prior to the use of any field, the City shall install a berm which averages six feet. in height beginning at the north end of Gerald Ailen's property and ending at the south end of the property where Thierry Burkhart lives. To the extent there are existing land forms into which such berm may be merged, such existing land forms may be used. The berm will be located on the Property next to the property line for the Meadowood Subdivision. In addition, a second berm with an average height of six feet from finished grade will be installed around the north and easterly edge of the Development Zone as shown on the Map. The berms will be s~eded and landscaped pursuant tO the requirements of paragraph 11 below. The City shall meet and consult with the owners of property along the Meadowood Subdivision property line prior 2 to installation of the berms and required landscaping so that such owners may provide input in the actual location and design of the landscaping and herruing. Moreover, the owners of property along the Meadowood Subdivision property line may, at their own expense, supplement the berm along the property line and the landscaping immediately adjacent their property. 11. Pursuant to'the landscaping plan described above and as approved and recorded with the Final Plat, berms and vegetative screening shall be required and installed prior to the use of the fields, including the planting by the City of at least 200 trees (consisting of a reasonable mix of evergreen, aspen and maple trees) at a minimum diameter of 11/2 inches on the Property in the open space area between the Athletic Fields Development Zone as shown on the Map and the Meadowood Subdivision boundary ("Open Space"). Subject to the site specific approval of the Aspen Parks Deparunent~ Meadowood homeowners shall be permitted to pay for and install additional vegetation in the Open Space. All vegetation planted in the Open Space shall be irrigated and/or maintained by the City. 12. No lighting of any kind will be permitted for any of the fields. Parking lot lighting shall be restricted to the minimum level which is necessary for safety or legal standards. 13. Adult use of the fields shall be limited to the intended purposes. Specifically, the adult use Of the ball fields shall be limited to softball and/or baseball for scheduled games. There shall be no adult usage of any youth soccer field which may be placed in the combined outfields. Signs reflecting this restriction on the uses of the fields shall be posted. The limitations of this paragraph shall not preclude youth recreational activities on the fields provided no structures are added to the fields for such activities except those structures which are removed at the end of each usage of the field. Specifically, youth soccer games may be held on the fields, provided any goals which are added to the fields for this purpose shall be remo. ved at the end of each usage of the field. All extra goals or nets for any youth activities on the combined outfields shall be of a temporary nature and shall be removed at the end of each usage of the field. Any youth soccer field placed in the combined outfields may be lined with paint or chalk to delineate the field. 14. Restroom facilities shall be limited to portable and removable facilities which shall be located on the far western edge of the Property. These facilities shall be removed during the winter season. Concession or food service facilities shall be temporary in nature, and must be removed from the fields at the end of each day or special event. Also, the City or its designee shall be responsible for cleaning up any trash or food scraps after any event for which concessions or food service facilities are provided. Commercial concessions, if any, shall be removed at the end of each day. 15. Beginning four years after the fields have been purchased, the City may schedule two one-day special events each summer on Sundays. The special events shall be limited to the hours of 9:00 AM through 5:00 PM. Beginning six years after the fields have been purchased, the City may schedule four one-day special events each summer on Sundays, which shall be 3 limited to the hours of 9:00 AM through 5:00 PM. While Iselin Park is under construction, no special events shall be scheduled on the Moore fields. 16. The use of the Open Space, specifically that portion of the Property between the Athletic Field Development Zone and the Meadowood Subdivision, shall be restricted to open space (no swing sets, barbecue pits, or picnic tables shall be permitted) and Nordic skiing uses, which shall be designated on the Plat. The intent is that the Open Space remain in as natural of a state as possible and remain a buffer between the residences in Meadowood and the baseball fields. 17. The City anticipates spending part of one playing season making improvements to the Iselin Park playing fields. After construction begins on the Iselin Park playing fields and for only part of that one summer season, paragraph 3 shall not apply. The City shall make all reasonable efforts to minimize the effects of unrestricted use of the fields (provided, however, the scheduled use of the fields on Sundays will be limited to the hours of 10:00 AM through 5:00 PM) during the construction season, including (a) not beginning construction of improvements to the Iselin Park playing fields until after August 1st of the summer that construction takes place; (b) using its best reasonable efforts to schedule organized activities at other available playing fields owned or operated by the City prior to scheduling on the Moore ball fields; and (c) prohibiting special events on the fields during that construction season. 18. This Declaration shall be effective for an initial period of 25 years. The intent of thig Declaration is to lessen or minimize impacts on the owners of homes in the MeMowood Subdivision of the ball fields to be located on the Property adjacent to homes along Heather Lane in the Meadowood Subdivision, while allowing the City reasonable use of the fields for public recreational purposes. Within Six months before the 251h anniversary of the recor.d!ng of this Declaration, the City (or the then-owner of the Property) shall contact the Board of Directors of the Meadowood Home Owners Association concerning the continued benefit of and any proposed modification of this Declaration. The parties shall then discuss any proposed modification of this Declaration. Beginning on the 25th anniversary of the recording of this Declaration, the Board of Directors of the Meadowood Home Owners Association shall have the authority to approve or disapprove any proposed modifications on behalf of the owners of property in Meadowood. If no modifications are proposed or necessary, this Declaration shall remain in full force and effect. If the parties are able to agree on any necessary modifications, such amended restrictions shall be recorded as a supplement to this Declaration. If the parties believe at that time that these restrictions are of no benefit, the parties shall record an instrument terminating and vacating these restrictions. If the parties are unable to reach an agreement concerning the continuation, discontinuation or modification of any of the restrictions, the parties shall submit any unresolved issues to an arbitrator for binding arbitration without the necessity of providing the City Attorney the notice provided in paragraph 23. The purposes of reconsideration of this Declaration shall be to (1) retain the current restrictions or add any new restrictions necessary to protect the home owners in the Meadowood Subdivision and particularly those home owners along Heather Lane adjacent the fields from the impacts of operating public ball fields adjacent this residential neighborhood; and (2) clarify or remove any restrictions 4 which become overly burdensome to the City in operation. In the event of arbitration where the arbitrator believes that the above-stated purposes are in conflict, the presumption shall be that the existing restrictions shall remain in full rome and effect. 19. Not more frequently than once per year, ff the City desires to change the intended adult use of one or both baseball fields (but not the youth soccer fields in the combined outfields), it may do so by recording in ~e Pitkin County rec6rds (and mailing a copy thereof to the Meadowood Home Owners Association) an amendment to this Declaration, which shall set forth the new allowed use and specify. the field to which the new usage shall apply. There shall not be more than one allowed use per field at any time. except for the use of the combined outfields as youth soccer fields. As an example, if the demand for. fields on which to play field hockey is greater than the demand for baseball, one or both of the baseball fields could be designated for field hockey. No substitute adult use for the fields shall have a significantly greater impact on the property owners in the Meadowood Subdivision; substitute uses shall not include rugby, soccer, or football. In the event of any dispute between the City and the owners of property in the Meadowood Subdivision concerning the impact of the proposed new use of the field, the dispute shall be submitted to binding arbitration. 20. All property owners in the Meadowood Subdivision shall have the same fights of access to the ski lift as residents in the Moore Subdivision and any users of the ski lift shall be subject to the same fees and restrictions as residents of the Moore Subdivision who use the ski lift. This restriction is between the neiglaboring property owners and the Declarant and is not enfomeable by the City. The owners within Meadowood shall be provided an access easement on the Final Plat as necessary for crossing the Moore Open Space property to access the ski lift and to ski into the Meadowood Subdivision from the Highlands Ski Area. 21. 'Invalidity or unenfomeability of any provision of this Declaration in ~hole or in part shall not affect the validity or enforceability of any other provision or any valid and enforceable part of a provision of this Declaration. 22. Any notice permitted or required under this Declaration shall be in writing and delivered either personally or by mail. If delivery is made by mail, it shall be deemed to have been delivered forty-eight hours after a copy has been deposited in the United States mail, postage prepaid, certified mall and addressed to the party at their last known address. 23. Each provision of this Declaration shall be specifically enforceable by the Declarant, the City, the Meadowood Home Owners Association or any individual or entity owning property along Heather Lane in the Meadowood Subdivision by a proceeding for any legal or equitable relief, including a prohibitive or mandatory injunction or action to recover damages. Provided, however, reasonable enforcement of this Declaration shall be an obligation of the City. Enforcement of this Declaration by anyone other than the City (except as expressly otherwise provided in this Declaration) shall be subject to the following prerequisite: within 30 days of an alleged violation of this Declaration, the complaining party may provide the City Attorney with written notice detailing the time, place, and nature of the alleged violation. The 5 City Attorney shall have seven days from receipt of the notice to review the allegations and determine that the City will not comme~ce an enforcement action, at which time the complaining party may commence an enforcement action. Arbitration shall be required in regard to disputes associated with paragraphs 18 and 19 above. Otherwise, either arbitration or litigation in an appropriate court shall be allowed to resolve disputes hereunder. The prevailing party in any arbitration or legal proceeding shall be entitled to reimbursement for the costs and legal fees associated therewith. Any Arbitration shall be administered by the American Arbitration Association in accordance with the Commercial Arbitration Rules unless the parties agree otherwise. The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. An arbitrator shall be designated within 30 days of receipt of a list of potential arbitrators. In the event the parties cannot agre on the designation of an arbitrator within said 30-day period, they shall promptly request the then-President of the Pitkin County Bar Association to designate a qualified arbitrator for them. In any event, an arbitrator wi/1 be selected within 14 days of the request to the President of the Pitkin County Bar Association to select an arbitrator. The City agrees to instruct the City Police Department to enforce this Declaration in a prompt manner and as reasonably necessary~ subject to the priorities of the Police Department, with respect to any violation of this DeclaratiOn that is of a temporary nature and for which enforcement is more appropriate for the City Police Depa, tment than for the City Attorney. For example, if there is an adult soccer game in progress on the youth-only soccer field in the combined outfields, the Police Depaxtment will respond to telephone calls from neighboring home owners to remove such adults from that field and terminate the soccer game. IN WITNESS WHEREOF, the Declarant, Iames E. Moore Family Pa/'taership, a Colorado parmership, has executed this Declaration , 1997. DECLARANT: Thomas Moore, General Parmer STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 1997, by Thomas Moore, General Partner of the James E. Moore Family Partnership. Witness my hand and official seal. My commission expires: Notary Public ACCEPTED AND APPROVED: THE CITY OF ASPEN Attest: K~ty)Clerk MEADOWOOD HOME OWNERS ASSOCIATION, INC. John Keleher, President PLAINTIFFS INDIVIDUALLY: Gerald Allen Walter Hampel Robert Francis meadow\2covcnau.04 7 Proposed natural lookbig landfi~nn meanders across site, and is integralcd with --, ~ -, / , ~/'~ ' ~J, ',".' Uiddle SChool ~-~