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RESOLUTION NO. 14
(Series of 1993)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
GRANTING CONSENT TO THE ASSIGNMENT OF RIGHTS AND OBLIGATIONS
UNDER THAT CERTAIN GROUND LEASE FOR CITY-OWNED PROPERTY COMMONLY
KNOWN AS THE ZOLINE PARCEL BETWEEN THE CITY OF ASPEN AND THE
MAROON CREEK DEVELOPMENT CORPORATION AND APPROVING AN AMENDED
GROUND LEASE FOR SAME WITH PEARCE EQUITIES GROUP II LIMITED
LIABILITY COMPANY.
WHEREAS, on February 12, 1990, the City of Asper executed a
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ground lease with the Maroon Creek Development Corpotation
("MCDC") for that certain city-owned property commonly known as
the Zoline Parcel; and
WHEREAS, said lease provides that the tenant (MCDC) shall be
permitted to assign its interests in said lease upon: the consent
of the city of Aspen; and
WHEREAS, MCDC has made written application to the city to
assign its interests under the lease to Pearce Equities Group II
Limited Liability company ("Pearce"), a Utah limited company; and
WHEREAS, the City Council has reviewed the assignment
request and has found no reason to object thereto; and
WHEREAS, the city and Pearce have satisfactorily negotiated
an amended ground lease for the Zoline Parcel and have agreed
that it shall supplant the original lease.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO that it does hereby consent to the
assignment of the lease rights and obligations of the Maroon
Creek Development corporation under the Zoline Parcel Ground
Lease entered into between the city and MCDC in February, 1990,
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to Pearce Equities Group II Limited Liability Company, and that
the Mayor and City Manager are hereby authorized and directed to
execute all documents necessary to effectuate the assignment
approval as herein granted.
IT IS FURTHER RESOLVED, that the Amended Ground Lease
attached and incorporated herein as Exhibit "1" be and is hereby
approved and that the Mayor and City Manager are authorized to
execute same.
RESOLVED APPROVED AND ADOPTED this I~
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Aspen, Colorado.
day of
, 1993, by the city Council for the City of
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John d. Bennett, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do
certify that the foregoing is a true and accurate copy of that
resolution adopted by the City
~f the city of Aspen,
p.! , 1993.
Colorado, at a meeting held
<~wk
Kathryn . KoCh, city Clerk
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ASSIGNMENT OP LEASE
MAROON CREEK DEVELOPMENT CORP., a Colorado corporation,
("Assignor") hereby assigns, effective January 25, 1993, all of its
right, title and interest in and to that certain Lease ("Lease")
dated February 12, 1990 between the Assignor, as "Tenant", and The
City of Aspen, as "Landlord"~ to PEARCE EQUITIES GROUP II LIMITED
LIABILITY COMPANY, a Utah limited liability company, ("Assignee").
The Assignee, by its acceptance of the within assignment, agrees to
assume all of the Tenant's obligations contained in the Lease and
to provide all of the indemnities to the Assignor as set forth in
that certain purchase agreement dated January 25, 1993. The real
property, which is the subj ect matter of the Lease, is described on Exhibit "A"
attached hereto and made a part hereof.
MAROON CREEK DEVELOPMENT CORP. ,
a Colorado corporation
B~~~i~
Jac P. DeBoer, President
PEARCE EQUITIES GROUP II LIMITED
LIABILITY COMPANY, a Utah
limited liability company
., Manager
CONSENT TO ASSIGNMENT
The City of Aspen hereby consents to the within assignment.
THE CITY OF ASPEN
By:
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mJh\ls\mcdc-peg.AOI
SEE PAGE 2 FOR ACKNOWLEDGMENTS
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STATE OF COLORADO
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COUNTY OF PITKIN
~he foregoing instrument
~. /7 day of February, 1993
Maroon Creek Development Corp.,
was acknowledged before me this
by Jack P. DeBoer, President of
a Colorado corporation.
witness my hand and official seal.
My commission expires: d>>~/r;y'
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STATE OF COLORADO
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COUNTY OF PITKIN
The foregoing instrument was acknowledged before me this
10 day of February, 1993 by James T. Pearce Jr., Manager of
Pearce Equities Group II Limited Liability Company, a utah limited
liability company.
witness my hand and official seal.
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My commission expires:
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Notary Public
STATE OF COLORADO
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COUNTY OF PITKIN
The fOregoin~ instrument was aCknowled~e
~9~ day of ~ ulH.-y, 1993 by ~ >d
.~ ~. for e City of Aspen.
witness my hand and official seal.
My Commission expires 9JZ7/9S
this
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My commission expires:
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EXHIBIT "A"
A parcel of land situated in section 2 and section 11; Township 10
South, Range 85 West of the sixth Principal Meridian, County of
Pitkin, State of Colorado; said parcel being more" particularly
described as follows:
Commencing at the South Quarter Corner of Section 2, a 1954 Bureau
of Land Management Brass Cap in place; thence N. 40" 31' 02" W.
397.79 feet to the True Point of Beqinninq; thence S 00"58'04" W.
964.49 feet to the northerly right-of-way of Colorado State Highway
No. 82; thence N. 60"51'38" W. along said right-of-way (according
to' the Colorado Department of Highways Project No. 2012-8) 740.77
feet; thence continuing along said right-of-way along the arc of
a curve to the right having a radius of 5680.00 feet and a central
angle of 07"08'07", a distance of 707.35 feet (chord bears N.
57"17'35" W. 706.89 feet) to the westerly line of Lot 21; thence
leaving said right-of-way N. 00"58'04" E. along the westerly line
of said Lot 21 226.41 feet; thence N. 02"28'04" E. along the
westerly line of said Lot 21 and Lot 17, 1308.04 feet to the
existing southerly right-of-way fence of County .Road No. 12-A;
thence leaving said westerly lot line S. 85"42'33" E. along sai~
southerly right-of-way fence 7.72 feet; thence continuing along
said right-of-way fence N. 88"00'39" E. 857.50 feet; thence S.
07"16'09" W. along a north-south fence and fence extended, 763.01
feet; thence s. 36"21'42" E. 725.00 feet to the True Point of
Beqinninq; said parcel containing 45.48 acres more or less.
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~:." ..' RONALD GARFIELD'
~ ANDREW V. HECHT**
ROBERT E. KENDIG
MICHAEL J. HERRON***
iGAlRflilElD & IHlIE CIHlT , f.C.
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ATTORNEYS AT LAW
VICTORIAN SQUARE BUILDING
601 EAST HYMAN A VENUE
ASPEN, COLORADO 81611
JANE ELLEN HAMILTON
PATRICK D. McALLISTER *"'**
en,
Of:F:iCE '-, ,
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New York: Bar
.... also admitted 10
District ofCo]umbia Bar
.u also admitted 10
FloridaBor
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Pennsylvania Bar and
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May 7, 1993
Edward M. Caswall
city Attorney
130 South Galena
Aspen, CO 81611
Re: Zoline open space Lease
Dear Jed:
I have enclosed the Amended Ground Lease executed by Pearce
,"-/Equities Group II, a Utah Limited Liability company.
_ You will find that I changed, the signature block on page
twenty. The attE?station which heretofore appeared has been
removed. Utah only requires the signature of a member to bind the
company.
Thank you for your assistance and should you have anY
questions please call.
Very truly yours,
(,
GARFIELD & HECHT,
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P.C.
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Andrew V. Hecht
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AMENDED GROUND LEASE
THIS AMENDED GROUND LEASE is made and entered into upon the
date(s) as indicated below by and between THE CITY OF ASPEN, a
municipal corporation ("Landlord"), and PEARCE EQUITIES GROUP II
LIMITED LIABILITY COMPANY, a Utah limited liabili'ty company, 601
East Hyman, Aspen, Colorado (sometimes hereinafter referred to as
"Tenant").
R E C I TAL
WHEREAS, on February 12, 1990, the city of Aspen entered
into a long-term ground lease with the Maroon Creek Development
corporation, a Colorado corporation ("MCDC"), for that certain
parcel of municipal property comprising approximately 45.48 acres
and commonly known as the "Z01ine Open Space Parcel" (the "Origi-
nal Lease"); and
WHEREAS, Paragraph 31 of the original Lease provided that
MCDC shall be permitted in whole or in part to assign said lease
upon the consent of the Landlord, which consent shall not be
unreasonably withheld; and
WHEREAS, MCDC notified Landlord on or about February 11,
1993, of its intent and desire to assign all of its rights,
obligations and interests in the Original Lease to Pearce Equi-
ties Group II Limited Liability Company (sometimes hereinafter
referred to as "Pearce Equities Group II"); and
WHEREAS, Pearce Equities Group II has indicated a willing-
ness and desire to succeed to the interests of MCDC under the
Original Lease and has executed an assignment of lease agreement
with MCDC to effectuate same, which agreement has been presented
to Landlord; and
WHEREAS, Pearce Equities Group II has executed a "waiver" of
that condition as contained in Paragraph 2 of , the Original Lease
requiring final approval by the Pitkin County Board of County
Commissioners of the land use application for the Pfister
Ranch/Golf Course as a prerequisite to the commencement of the
Original Lease; and
WHEREAS, Pearce Equities Group II has tendered to Landlord
certified funds in the sum of $741,250.00 representing that
amount due Landlord under the terms of the Original Lease in
order to secure and commence the lease; and
WHEREAS, Landlord and Tenant have agreed to certain amend-
ments to the Original Lease and desire to incorporate such amend-
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ments into a lease agreement that shall supersede and replace the
original Lease; and
WHEREAS, Landlord has agreed to consent to the assignment of
MCDC's rights and interests in the original Lease to Pearce
Equities Group II in consideration of and so as to accommodate
and obtain the execution of this Amended Ground Lease; and
WHEREAS, it is the intent of the Landlord and Tenant that
this Amended Ground Lease shall supersede and replace the Origi-
nal Lease for the Zoline Open Space Parcel in all respects.
NOW, THEREFORE, in consideration of the terms and conditions
as expressed herein, Landlord and Tenant covenant and agree as
follows:
1. Lease of Premises. In consideration of the rents,
covenants and agreements hereinafter set forth, Landlord hereby
leases to Tenant all of Landlord's right, title and interest in
the following described property, situate in the County of
Pitkin, State of Colorado, to-wit ("Premises"):
As set forth in Exhibit "A" attached hereto and incor-
porated herein by this reference.
2. Term. The Term of this lease (the "Term") shall be for
a period which shall begin on the Commencement Date and shall
continue for a period of ninety-nine (99) years, except that
should Tenant fail to substantially complete construction of the
golf course on the Premises as described in paragraph 4 below by
June 1, 1997, then this lease shall automatically terminate with
all rents paid to Landlord through such date to be retained by
Landlord without rebate or refund to Tenant. Tenant shall also
have the right to terminate this lease at any time upon the
mailing of a written notice to Landlord at least ninety (90) days
in advance of the anticipated termination date.
3. Commencement Date. This lease shall commence upon the
execution of this Amended Ground Lease by the parties hereto. In
the event the parties do not execute the Amended Ground Lease on
the same date, then this lease shall commence upon the date the
last party executed same.
4. Use. Tenant shall be entitled to use the Premises
solely for the design, construction, operation, maintenance,
repair and replacement of a golf course or part of a golf course,
together with all uses ancillary thereto including, but not
limited to, excavation, earthmoving, creation of berms, bunkers,
and other landscaping features and the planting, maintaining or
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removing of any natural or other ground cover of all kinds,
including grass, sod, trees, bushes, sand, ponds and ditches,
installation of sprinklers or other watering systems, signs,
parking, driving range, roads, trails, paths and the like, and
any obstacles, amenities or other features commonly used in the
construction, design or operation of a golf course. Landlord
further agrees that Tenant shall have access to the Premises
prior to the Commencement Date for purposes of planning, includ-
ing the performance of reasonable soil tests. There shall be no
structures permitted to be placed on the Premises except shelters
from the weather and sheds containing maintenance equipment and
materials for the golf course. Only electric golf carts shall be
permitted on the golf course, except that construction and
maintenance equipment shall be permitted as necessary to the
operations of the course. In the event that electric carts shall
prove to be inefficient or incompatible with the design of the
course in Tenant's opinion, other golf carts with pOllution-
mitigating devices shall be permitted. Except for weather and
necessary maintenance or reconstruction purposes, should Tenant
fail to operate or maintain the Premises as a golf course for a
period in excess of, one golf season without the written approval
of Landlord, then such failure shall constitute an abandonment of
the Premises and a material breach of this agreement entitling
Landlord to terminate same and take possession of the Premises.
5. Rent. Tenant has tendered to Landlord certified funds
in the sum of $741,250.00 representing all payments made to date
by Landlord to the Zoline Foundation pursuant to that secured
non-recourse promissory note in the amount of $1,075,000.00,
dated August 10, 1987 (a copy of which is attached hereto as
Exhibit "B" and referred to hereinafter as the "Note"), such note
arising from Landlord's original purchase of the Premises from
the Zoline Foundation. In addition to the payment of the
$741,250.00, which Landlord hereby accepts and acknowledges,
Tenant shall pay to Landlord as rent for the Premises payments
equal to the future payments due from the Landlord to the Zoline
Foundation under the terms of the Note, said payments to continue
and to be made in a timely fashion in accordance with that
schedule of interest and payments attached to said Note, which is
fully incorporated herein by this reference, assuming no prepay-
ments of principal, or until a notice of termination is sent to
Landlord and recorded in the real estate records of Pitkin
county, Colorado. Tenant shall have the right to prepay the rent
at any time in accordance with Landlord's right to prepay the
Note. Upon final and full payment of the Note, Landlord shall
secure a timely release of the corresponding deed of trust
encumbering the Premises as security for the Note.
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6. Taxes and utility Expenses. Tenant shall during the
Term punctually pay and discharge or cause to be paid and dis-
charged, as and when the same shall become due and payable, all
general property taxes affecting the Premises, if any. Tenant
shall have the benefit of all tax and other exemptions available
to Landlord with respect to the Premises to the extent permitted
by law. Tenant shall be deemed to have complied with the cove-
nants hereof if payment of such taxes and assessments have been
made either within any period allowed by law or by the governmen-
tal authority imposing the same during which payment is permitted
without penalty or interest or before the same shall become a
currently payable lien upon the Premises, and Tenant shall
deliver to Landlord satisfactory evidence of payment within
thirty (30) days after the date payment is due. Tenant shall
have the right to contest in good faith any taxes or assessments
by legal proceedings. Tenant shall conduct such proceedings
promptly at its own cost and expense and free of any expense to
Landlord. If necessary, Landlord shall cooperate and shall
execute all documents reasonably necessary to enable Tenant to
proceed with the contest. Notwithstanding the foregoing, howev-
er, Tenant shall promptly pay all taxes or assessments if at any
time the Premises or any part thereof shall be subject to forfei-
ture because of the nonpayment. In the event of any reduction,
cancellation or discharge of taxes, Tenant shall promptly pay the
amount finally levied or assessed against the Premises or adjudi-
cated to be due and payable on any such contested taxes. Tenant
shall during the Term pay all utility expenses including, if
applicable, costs and expenses of providing water, gas and
electric services to the Premises. In no event, however, shall
Tenant be required to pay any franchise, income, inheritance,
estate, succession, transfer or gift taxes that are or may be
imposed upon Landlord, its successors or assigns, except in the
event such tax, expense or cost arises solely from Tenant's use
of the Premises.
7. Retained Riqhts. Tenant agrees to allow Landlord to
maintain public use of a portion of the Premises for public
recreational trails as does not interfere with the intended use
of the Premises by Tenant. The Landlord understands that the
golf course is not yet designed and it is therefor impossible at
this time to designate the location for such trails. All public
trails as permitted hereunder to the Landlord on the Premises
("Retained Rights") shall be restricted to bicycles, foot traf-
fic, and cross country skiing, specifically excluding all motor-
ized vehicles and animals (except dogs on leash during those
periods when the trails are not in use for cross country skiing.
during which time dogs shall be prohibited entirely). The
number, location and extent of public trails shall be subordinate
to rights of Tenant hereunder and public trails may be relocated
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at Tenant's reasonable discretion from time to time, provided
such trails will be available for public use during all seasons
and at all times, except during construction periods. Tenant
agrees to link such trails to other trails existing at the time
of the execution of this lease in the area over lands within the
control of Tenant or Landlord or pitkin County. In addition,
Tenant shall not unreasonably withhold its consent to linking
such trails to public trails to be constructed in the future;
provided, however, it shall not be unreasonable for Tenant to
withhold its consent where the linking of trails would cause
damage to or adversely affect the golf course. Tenant agrees to
allow full and normal maintenance of trails by Landlord, includ-
ing, but not limited to, use of the Piston Bully, mechanized
broom cleaning devices, weed spraying equipment and other such
equipment.
Subject to the terms, conditions and limitations of the
Colorado Governmental Immunity Act, C.R.S. 24-10-101, et seq.,
Landlord shall at all times remain solely responsible for inju-
ries, demands, damages, losses or judgments arising from its
negligence, or the negligence of its employees, in the mainte-
nance, operation and public use of the public trails traversing
the Premises and Tenant shall not be liable for injuries or
claims resulting from Landlord's negligence, or management of the
trails. Landlord and Tenant understand and agree that Landlord
is a member of the Colorado Intergovernmental Risk Sharing Agency
(CIRSA) and as such participates in the CIRSA property/casualty
pool. Copies of the CIRSA policies and coverages are maintained
at the offices of the city Attorney of the City of Aspen and are
available for inspection during regular business hours. Landlord
makes no representations with respect to specific coverages
provided by CIRSA. Landlord and Tenant further agree and ac-
knowledge that Tenant shall receive all protections and benefits
as afforded a lessee of land used for public recreational purpos-
es as provided under C.R.S. section 33-41-101, et, seq.
8. Public Use of Golf Course. Landlord understands that
the use of the Premises shall be for a private membership club.
However, Tenant further agrees and covenants that it will permit
non-members to play on the golf course subject to the following
terms and conditions and other rules of the golf course adopted
by the Tenant from time to time not in conflict with the terms of
this paragraph:
(a) The golf course will be available to non-members
defined as follows as either:
(1) employees who work in Pitkin County a minimum
of thirty (30) hours per week; or
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(2) full-time residents of Pitkin County who are
sixty (60) years of age and over; or
(3) students who are enrolled full-time in
schools located in pitkin County.
(b) Use of the golf course by eligible persons as set
forth in subparagraph (a) above shall be, at a minimum, as
follows:
(1) Mondays (except Memorial Day, July 4 and
Labor Day weekends): 100% of all available tee times; provided,
however, the course shall be closed to non-members from noon to
closing on all Monday afternoons on which special events have
been scheduled for the course. In the event that eligible
persons do not use all available Monday tee times, members may
use the course; provided, however, that members shall not be
allowed to reserve Monday tee times in advance. The course shall
not be open to non-members on Saturdays.
Sundays
above:
noon.
(2) Tuesday through Friday and Sunday (excluding
of holiday weekends as set forth in subparagraph (1)
Four (4) tee times dispersed between starting time and
(3) Tuesday through Friday and Sunday, from
season opening through June 15 (excluding Sunday of Memorial Day
weekend) and September 15 through season closing: Eight (8) tee
times dispersed between starting time and noon.
(c) Use of the golf course by eligible persons shall
be limited to five (5) times per season, exclusive of tournaments
and Monday afternoon public events. Tenant reserves the right to
combine eligible persons into foursomes so as to maximize avail-
ability of the course to eligible persons.
(d) Golf passes will be issued and renewed annually to
eligible persons for an initial administrative fee of $15.00,
subject to an increase or decrease to the actual costs of admin-
istration.
(e) Green fees for the first five (5) years shall be
no more than thirty-five percent (35%) greater than green fees
charged to tourists at the Aspen Municipal Golf Course; thereaf-
ter, green fees shall be no more than fifty percent (50%) greater
than those charged to tourists at the municipal course. Addi-
tionally, and at all times, persons possessing a current City of
Aspen golf pass shall be entitled to play one (1) round of golf
each season for the cost of the Aspen Municipal Golf Course green
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fee. In the event that at some time in the future the municipal
course reduces or eliminates the green fees charged to tourists,
or is no longer owned and operated by Landlord, green fees
charged by Tenant to non-members shall never be less than those
last charged by Tenant for non-members pursuant to this agree-
ment, plus an annual increase based on the average annual in-
crease over the term of the lease thus far expired.
(f) Golf carts may be required in the event that
Tenant determines that walking the course is not compatible with
the use of the golf course. If used, fees will be the same as
those charged by the municipal course for golf carts.
9. Title Insurance. Landlord has paid for and delivered
to Tenant, and Tenant has accepted, a leasehold title insurance
policy for the Premises, excluding the water rights associated
therewith.
10. Leasehold Mortqaqes; Notice. For purposes of this
lease, the term "Permitted Mortgage" shall mean any mortgage,
deed of trust or other indenture constituting a lien on the lease
or any part thereof, and all of the leasehold estate or any
interest therein, together with the note or obligations which it
secures. Landlord covenants and agrees whenever and as often as
Tenant may require during the Term that Tenant may make, grant or
enter into one or more Permitted Mortgages, including simulta-
neous senior and junior Permitted Mortgages subject to the
following:
(a) Each Permitted Mortgage shall cover no interest in
the Premises other than Tenant's interest in the lease and
leasehold estate;
(b) Tenant shall promptly deliver to Landlord in the
manner herein provided for the giving of notices to Landlord, a
true copy of the Permitted Mortgage; and
(c) So long as any Permitted Mortgage shall remain a
lien on Tenant's leasehold estate hereunder, Landlord agrees
simultaneously with the giving of any notice to Tenant of de-
fault, or of a matter on which a default may be predicated or
claimed, that each holder or beneficiary of a Permitted Mortgage
will have the same period after receipt of notice to remedy the
default.
11. Environmental Issues. The parties acknowledge that the
golf course is intended to be maintained in an environmentally
sensitive manner. It is also understood that compliance with the
requirements contained in the Pfister Ranch/Golf Course land use
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application filed with and approved by Pitkin County, Colorado,
shall be deemed adequate to comply with this provision. A
violation of this covenant shall not be a default under the
provisions of this lease and the only enforcement of such provi-
sions shall be pursuant to the land use approvals and conditions
as issued by Pitkin County; provided, however, that Landlord
shall also have the right to enforce such approvals or conditions
against Tenant by an action for specific performance.
12. Reclamation Bond. Prior to construction of the golf
course, Tenant agrees to provide reclamation bonding satisfactory
to Landlord and sufficient to reclaim and restore the Premises if
necessary to its original pre-construction condition due to
Tenant's failure to substantially complete the golf course by
June 1, 1997.
13. Water Riqhts. This lease includes as part of the
leasehold estate for the use by Tenant, without payment of any
additional rent, any and all water rights, ditch or ditch rights
and shares of stock in any ditch company appurtenant to the
Premises as set forth in Exhibit "C" hereto. with respect to the
lease of the water rights, the parties agree as follows:
(a) If it is necessary for the Tenant to change the
water right(s), as a change of water right is defined in C.R.S.
section 37-92-103(5), in order for the Tenant to use the water on
the leased property for the Tenant's reasonable purposes, includ-
ing but not limited to the irrigation of a golf course and
maintenance of ponds thereon, then the Landlord will not unrea-
sonably withhold its consent to such a change. In such event,
the Landlord shall have the option at its sole discretion and at
Tenant's expense to prepare and file the application for change
of water right and to prosecute the change of water right through
the Water Court. Tenant shall be entitled to consult with the
Landlord and materially participate in the preparation of the
application for change of water right and in the prosecution of
the change of water right proceeding. Alternatively, should
Landlord decline to prosecute the change, Tenant may undertake to
do so at its expense, in which event Landlord shall be entitled
to consult with Tenant and materially participate in such action.
(b) The Tenant shall beneficially use water diverted
under the leased water rights, consistent with the reasonable
requirements of the Tenant, for the operation of the Premises as
a golf course. Tenant shall not waste, or cause to be wasted, or
abandon any water or water right.
(c) If the Tenant is fully utilizing the leased water
rights on the Premises, and requires new or additional water
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rights to meet its reasonable needs for the operation of the
Premises as a golf course, then the Tenant shall be entitled to
obtain new or additional water rights for use on the Premises, as
long as the Tenant continues to fully utilize the leased water
rights.
(d) The Tenant shall irrigate the Premises and use the
water diverted under the leased water rights consistent with
historic use of the water rights. The parties agree that the
sprinkler irrigation of a golf course and the storage of water in
golf course ponds is not inconsistent with the historic use of
the leased water rights.
(e) If the Landlord files an application for change of
water right pursuant to C.R.S. section 37-92-103(5) with the
Water Court, for one or more of the water rights which are
subject to this lease, the Tenant may, at its option, join with
the Landlord in the application and support the application if
the granting of the application would not harm the Tenant in its
use of water diverted under the subject water rights, or in its
use ,of water diverted under other water rights owned or leased by
the Tenant.
(f) The Tenant agrees that it will not oppose an
application filed by the Landlord for a water right or change of
water right relating to the water rights which are subject to
this lease, or to any other water right which Landlord may own,
as long as said application will not damage water rights owned or
leased by the Tenant, or otherwise jeopardize the Tenant's plans
for the development of its property located in pitkin County,
Colorado. The Landlord agrees that it will not oppose any water
right application filed by the Tenant for a new water right or
change of water right as long as said application does not
threaten to damage Landlord's water rights, or jeopardize Land-
lord's provision of water services to customers of water and use
of water by the City of Aspen, Colorado.
(g) The Tenant agrees that the Landlord shall be
allowed to cross the Premises with and/or install thereon water
systems facilities, including, but without limitation, water
storage and treatment tanks and water storage ponds, as long as
the same do not interfere with the Tenant's use of the Premises
as a golf course, subject to the consent of the Tenant, which
consent shall not be unreasonably withheld. Any water system
facilities shall be designed and constructed in such a manner
that they shall be aesthetically consistent with the use and
operation of the Premises as a golf course. The Landlord shall
restore the contours and appearance of the premises to the
condition which existed prior to the construction of said water
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systems facilities within 30 days of any installation, construc-
tion or repair of such facilities which changes the contours or
appearance of the Premises.
(h) The Tenant agrees that in the event there is a
water emergency, which is declared by the Aspen city Council, and
if the Tenant is requested by the Landlord to curtail diversions
under the leased water rights so as to make water available for
domestic use by persons served by the Aspen Water Department, or
so as to maintain a minimum stream flow on Maroon Creek, in an
amount not to exceed 14 cfs at its confluence with the Roaring
Fork River, the Tenant will not divert water under the water
rights which are subject to this lease during the period of said
emergency. Notwithstanding the above, the Landlord agrees that
in no event shall the Tenant be obligated to cease to divert
water under the subject water rights as long as the Aspen Munici-
pal Golf Course or similar municipal recreational areas continue
to be irrigated in whole or in part.
(i) The Tenant agrees that pesticides or fertilizers
used on the Premises will be limited to those reasonably and
normally necessary to maintain the golf course in its regular
operation. The Tenant agrees to apply said pesticides in a
prudent manner, using only those quantities of pesticides reason-
ably necessary for the operation of the golf course. 'The Tenant
agrees not to store said pesticides on the Premises. The Tenant
agrees to indemnify and hold the Landlord harmless for any and
all damages, costs and attorneys' fees incurred by Landlord as a
result of the Tenant's use of pesticides on the Premises.
(j) The Tenant agrees that toxic wastes used or
generated on the Premises will be limited to those reasonably
necessary to construct the golf course and then maintain the golf
course In its normal operation. The Tenant agrees any toxic
wastes generated by it on the Premises shall be limited to those
which are normal by-products of the construction and operation of
a golf course. The Tenant agrees to handle and dispose of said
toxic wastes in a prudent manner. The Tenant agrees not to store
said toxic wastes on the Premises, and further agrees not to
dispose of said toxic wastes on the Premises. The Tenant agrees
to indemnify and hold the Landlord harmless for any and all
damages, costs, and attorneys' fees incurred by the Landlord as a
result of the Tenant's use of toxic wastes on the Premises.
(k) To the extent that it is reasonably necessary for
the Landlord to repair or clean the ditches through which the
water diverted under the subject water rights is delivered, the
Landlord shall give reasonable prior written notice to the Tenant
of its plans to do so. The Landlord further agrees that in
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undertaking these operations, it will make all reasonable efforts
to minimize to the greatest extent possible its interference with
the Tenant's use of the Premises.
(1) Notwithstanding the provisions of subparagraph
(k), the Tenant shall have the right to operate the ditches,
ponds and sprinklers on the Premises, through which the water
diverted under the subject water rights is delivered, and shall
have the sole, exclusive and paramount control over all diver-
sion, transmission and storage facilities and structures upon the
Premises. As between the Tenant and the Landlord, the Tenant
shall be responsible for, and bear all costs of, con~tructing,
maintaining, replacing, operating and cleaning the ditches, ponds
and sprinkler systems through which the water is delivered,
insofar as they are located on the Premises, together with any
laterals or drains, sumps, water pumps, transmission and storage
structures and other facilities necessary for the use of this
water on the Premises for the operation of a golf course.
(m) The Landlord will cooperate with the Tenant in
securing any easement necessary for the use on the P~emises of
water diverted under the subject water rights, but the Landlord
shall not bear any costs of any work necessary to secure any
easement not within the rights-of-way currently held by the
Landlord.
(n) The Tenant acquires hereunder the right to use the
leased water rights as provided herein, and all interest and
claims of the Tenant in and to said leased water rights shall
terminate after the use of said water as set forth herein, such
that no right or benefit under the leased water rights shall
remain by virtue of this agreement, or the use of water under the
leased water rights, by Tenant, any successors-in-interest, or
any individual.
(0) The Tenant may divert and use water under the
subject water rights only at such times and to the extent water
is permitted to be taken from the above-described sources by the
Division Engineer, Water Division No.5, state of Colorado, under
the priorities established by law. The parties also recognize
that the supply of water under the above-described water rights
is dependent on sources which are variable in quantity and/or
quality and which are beyond the control of the Landlord. No
liability shall attach to the Landlord hereunder on account of
any failure to accurately anticipate the availability of water
supply or because of an actual failure of water supply due to
inadequate runoff, poor quality or other occurrence beyond the
reasonable control of the Landlord. The Landlord has no obliga~
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tion in any way to treat the water supplied hereunder, and makes
no warranties whatsoever as to the quality of the water supply.
(p) The Landlord reserves the right to reuse, to the
extent permitted by law, the water which is diverted by the
Tenant hereunder. Except as is reasonably necessary upon the
Premises, the Tenant shall have no right whatsoever to reuse the
water diverted under the leased water rights.
(q) The Landlord shall have the right to temporarily
suspend the raw water delivered hereunder in order tp reconstruct
or maintain any of the Landlord's facilities appurtenant to or
used in connection with, any of the Landlord's water rights. In
the event the Landlord wishes to exercise the power granted in
this paragraph, the Landlord shall inform the Tenant in writing,
at least 30 days in advance of the time the Landlord will suspend
the rights pursuant to this paragraph. The Landlord agrees to
attempt to make such suspension at a time mutually convenient and
least burdensome to both parties.
(r) Neither party shall be held liable for a failure
to perform due to wars, strikes, acts of God, natural disasters,
drought or other similar occurrences outside the control of
either party.
(s) The Landlord may not declare a default under this
lease due to the Tenant's alleged violation of any provision of
this Paragraph 13, unless the Landlord has given prior written
notice to the Tenant, specifying the grounds upon which the
Landlord believes a default has occurred. The Tenant shall then
have 30 days from the receipt of said written notice to cure the
default, or in the alternative, if the default by itp nature
cannot be cured within said 30 days, the Tenant shall initiate
action to cure said default within said 30 days, and shall act
with due diligence to complete the cure of said default within a
reasonable period of time thereafter. If the default alleged is
the Tenant's failure to beneficially use water under the leased
water rights, in lieu of curing the default, the Tenant may elect
to release the unused water rights or portions thereof to the
Landlord for its use, which election shall be made by the Tenant.
Notwithstanding the above portions of this subparagraph, if
written notice of any default relating to an alleged failure to
beneficially use water is received by the Tenant between Septem-
ber 1 and April 15, the Tenant shall have until the rollowing May
15 to make its election to either cure the default or release the
water rights or portions thereof which it is not using. In no
event shall any failure of the Tenant to comply with the provi-
sions of Paragraph 13 of this lease result in a termination of
this lease. The Landlord's sole remedy, should the Tenant
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violate Paragraph 13 of this lease and fail to timely cure said
default, shall be specific performance.
14. Landlord's Warranties and Representations. Landlord
warrants and represents to the best of its information and belief
that (i) there are no easements or other restrictions or agree-
ments encumbering or affecting the Premises that would prevent or
interfere with Tenant's intended use thereof; (ii) Landlord has
the right and lawful authority to enter into this lease for the
term hereof and that Landlord is the owner in fee simple of the
Premises free and clear of any liens and encumbrances, except for
that deed of trust recorded in the records of the Pitkin County
Clerk and Recorder at Book 543 and Page 411 on August 10, 1987;
(iii) Landlord's interest in the Premises or this lease shall not
be further encumbered subsequent to the execution of this lease;
(iv) Landlord will do nothing to impair or change the condition
of title to the Premises between the execution of this lease and
its termination; and (v) the Landlord has not conveyed or encum-
bered any of the water rights which are subject to this lease,
subsequent to receiving title to the same, except for that Pledge
Agreement executed between Landlord and the Zoline Foundation
dated August 10, 1987.
15. Indemnification and Insurance. Tenant agrees to
indemnify and save Landlord harmless from and against any and all
claims and damages arising from Tenant's use of the Premises,
including any and all claims arising from the construction or
operation of the golf course. Tenant shall obtain and maintain
in full force and effect at all times liability insurance from a
company or surety licensed to do business in Colorado, with
minimum liability limits no less than those judgment limits as
set forth in C.R.S. section 24-10-114(1), as may be amended from
time to time, naming Landlord as an additional or co-insured.
Any such policy shall provide that no cancellation or change of
such policy shall be permitted without prior 30-day written
notice to Landlord, and waiver of all rights of subrogation which
the insurer may have.
16. Eminent Domain.
(a) In the event the whole of the Premises shall be
taken by the exercise of the power of eminent domain or under
threat thereof, this lease shall terminate as of the date posses-
sion thereof shall be so taken by or under the condemnor.
(b) In the event less than the whole of the Premiss
shall be taken by exercise of the power of eminent domain or
under threat thereof and, as a consequence thereof, Tenant's
rights in or use of the Premises are substantially and materially
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impeded, Tenant shall have the right, upon notice to Landlord
within ten (10) days after the earlier of the entry of final
judgment in the condemnation action or the delivery of possession
of the Premises, to terminate this lease, effective as of the
date possession is taken by or under the condemnor. Tenant's
right to terminate this lease under this subsection (b) is
subject to the prior approval of any leasehold mortgagee.
(c) In the event this lease shall be terminated in
whole or in part pursuant to subsection (a) or (b) of this Para-
graph 16, each party shall thereupon be released from every
obligation hereunder to the other, except:
(1) with respect to any covenants hereof breached
prior to the date of termination; and
(2) the obligation of Landlord to refund to
Tenant any rent paid to Landlord which pertains to any period
subsequent to the date of termination.
(d) Any condemnation award, whether the same shall
result from agreement or from judicial or administrative deci-
sion, by reason of a taking or damaging by condemnation of the
Premises or any portion or portions thereof or any rights or
interests therein or resulting in a requisitioning thereof by
military or other public authority for any process arising out of
a temporary emergency or other temporary circumstances, shall be
distributed in accordance with any such agreement or as may be
provided by law.
17. Ouiet Enlovment. Landlord covenants and agrees that
Tenant may peaceably and quietly have, hold and enjoy the leased
Premises and the appurtenances thereto and enjoy the right to
landscape the leased Premises in any manner required to construct
a golf course designed by Tenant and redesigned from time to time
during the term of this lease and any extension thereof.
18. Default. If Tenant defaults in the performance of any
obligation under this lease, Landlord shall give notice to Tenant
specifying the nature of the default together with a twenty-five
(25) day period within which to cure said default. If the
default is other than the payment of rent and is of such nature
that it cannot reasonably be cured within the time provided, then
such time period shall be extended from time to time up to a
maximum of sixty (60) days so long as Tenant is proceeding with
reasonable diligence to cure such default. Where any default is
not cured within the time provided or any extension, Landlord
shall have the right to exercise any remedies available at law or
equity, including, but not limited to, specific performance and
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damages. In the event Landlord shall be in default pf any
warranties, representations, or obligations it has under this
lease, Tenant, upon thirty (30) days notice to Landlprd, may
exercise any remedies available at law or equity including, but
not limited to, specific performance and damages.
19. Relocation of utility Lines and Easements. Tenant, at
its sole expense, shall have the right to construct, relocate or
underground existing utility lines and easements if such con-
struction, relocation or undergrounding does not interfere with
the service of such utilities and is acceptable to the impacted
utility. All above-ground utilities, excepting irrigation
systems, shall only be relocated underground and existing
underground utilities shall remain underground.
20. No Hazardous or Toxic waste. To the best bf Landlord's
knowledge, (i) the Premises does not contain, no activity upon
the Premises has produced, and the Premises has not been used in
any manner for the storage of. any hazardous or toxic waste,
materials, discharge, deposit, dumping, or contamination (with
the exception of radon), whether of soil, ground water or other-
wise, which violates any applicable federal, state, local or
other law, regulation, order, ordinance, rule, regulation or
statute, including, without limitation, those relating to envi-
ronmental protection, or requires reporting to any governmental
authority; (ii) the Premises does not contain underg~ound tanks
of any type (with the exception of septic), or any m",terials
containing or producing any poly-chlorinated biphenyls; and (iii)
there are no surface or subsurface conditions which constitute,
or with the passage of time may constitute, a public or private
nuisance.
21. Rule Aqainst Perpetuities. If any of the ,terms,
covenants, conditions, easements, restrictions, uses, limitations
or obligations created by this lease shall be unlawful or void
for violation of: (a) the rule against perpetuities or some
analogous statutory provision, (b) any rule, restriction or re-
straint on alienation, or (c) any other statutory or common law
rules imposing like or similar time limits, then such provision
shall continue only for the period of the life of James T.
Pearce, Jr., his now living descendants, and the survivor of
them, plus twenty-one (21) years.
22. Interpretation of Lease. In the event that any ques-
tion arises with respect to the interpretation of provisions of
this lease, the Aspen City Manager shall have the authority to
reach an agreement with Tenant on behalf of Landlord. If in any
instance the City Manager is unable to reach an agreement with
Tenant, city Council shall have the authority to act for the
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Landlord with respect to interpretation of any provision of this
lease.
23. Applicable Law. This lease, and the rights and Obliga-
tion of the parties hereto, shall be interpreted and oonstrued in
accordance with the laws of the state of Colorado. Venue for all
actions arising under the lease shall be in Pitkin County. The
court shall award the prevailing party reasonable attorneys' fees
and costs incurred by such party in any action enforcing the
terms of this lease.
24. Severabilitv. If any provision of this lease shall be
invalid or unenforceable, the remainder of the provisions shall
not be affected thereby and each and every provision shall be
enforceable to the fullest extent permitted by law.
25. Compliance with Laws. Tenant agrees to occupy and
maintain the Premises in compliance with all state, federal and
local laws and regulations that apply thereto. Tenant also
agrees that in performing under this lease and in using the
leased premises, it shall not discriminate against any worker,
employee or job applicant, or any member of the public, because
of race, color, creed, religion, ancestry, national origin, sex,
age, marital status, physical handicap, affectional or sexual
orientation, family responsibility or political affiliation, nor
otherwise commit an unfair employment practice.
26. Bindinq Effect. This lease shall be binding on and
inure to the benefit of the successors and assigns of the par-
ties.
27. Surrender at Expiration or Termination. Tenant shall,
at the expiration of this lease, surrender the Premises to Land-
lord. At the expiration of the Term, or earlier termination,
Tenant shall have the right to remove any improvements to the
Premises made by Tenant, and Tenant shall, at Landlords' option,
either (i) restore the Premises ,to its original condition, or
(ii) leave the Premises in its existing condition.
28. Notices. Notices sent pursuant to provisions in this
Lease shall be deemed given when received by certified mail,
return receipt requested, to either party hereto, at the address
set forth below:
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To the Tenant:
Pearce Equities Group II Limited Liability Co.
c/o Garfield & Hecht
601 East Hyman Avenue
Aspen, Colorado 81611
with a copy to:
Andrew V. Hecht, Esq.
Garfield & Hecht
601 East Hyman Avenue
Aspen, Colorado 81611
To the Landlord:
City of Aspen
c/o city Manager
130 South Galena Street
Aspen, Colorado 81611
with copy to:
Office of the City Attorney
130 South Galena Street
Aspen, Colorado 81611
Either party may change the address to which notice is to be
sent by providing notice of the same to the other party.
29. Miscellaneous.
(a) This is an absolutely net lease and Landlord shall
not be required to provide any services or do any act or thing
with respect to the Premises or the appurtenances thereto, except
as may be specifically provided herein.
(b) Tenant covenants and agrees with Landlord that
Tenant will diligently care for and maintain the Premises.
(c) Tenant shall be permitted to assign or sublet this
lease. Landlord shall have the right to approve any assignment,
which approval shall not be unreasonably withheld.
(d) If any consent is required hereunder from Land-
lord, and the Landlord fails to notify Tenant within thirty (30)
days after the mailing of a written request therefor, it shall be
deemed that such consent or approval has been given. Further, no
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consent that may be required of Landlord shall be unreasonably
withheld.
(e) Tenant agrees that it will operate the Premises so
that no mechanics' or other liens shall attach against the same.
In the event a lien should attach against the Premises, Tenant
may provide a bond or other financial security satisfactory to
Landlord guaranteeing the removal of the lien. Failure to
provide security or remove the lien may be treated by Landlord as
a material breach of this agreement. In all events, Tenant shall
post a notice of non-liability for mechanic's liens as specified
at C.R.S. section 38-22-105 on behalf of Landlord prior to under-
taking any construction or improvements on the Premises from
which a mechanic's lien could arise.
(f)
parts, each of
constitute one
This lease may be executed in several counter-
which shall be an original, but all of which shall
and the same original instrument.
(g) No provision of this lease may be construed
against the interest of any party merely because such party
drafted the lease provision or provided language or changes to be
included in the lease.
(h) This lease and any provision contained therein may
not be amended or altered absent written agreement executed by
both Landlord and Tenant.
(i) In the event compliance with any act, forbearance,
duty, obligation, or performance, except for the payment of rent,
as provided for in this agreement is prevented, delayed or
interrupted by acts of God, natural disaster, strikes, fire or
civil disturbance, or by law or government order or regulation,
then such compliance shall be suspended without penalty until
compliance may be reasonably achieved.
30. Estoppel certificate. Landlord and Tenant shall at any
time without charge execute and deliver to each other within
thirty (30) days after written request of the other, a certifi-
cate evidencing whether or not:
(a) the lease is in full force and effect;
(b) the lease has been modified or amended in any
respect and describing such modifications or amendment if any;
and
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(c) there are any existing defaults thereunder to the
knowledge of the party executing the certificate and specifying
the nature of such default, if any.
If either party shall fail to deliver such certificate within
thirty (30) days after such request the lease shall be deemed in
full force and effect, unmodified and without default.
31. Riqht of First Refusal. In the event Landlord desires
to sell the Premises and a bona fide offer to purchase the
Premises during the Term is received, and such offer is satisfac-
tory to Landlord, Tenant shall have the privilege of purchasing
the Premises at the price and on the terms of the offer so made.
This privilege shall be given by notice sent to Tenant by certi-
fied mail, requiring Tenant to accept the offer in writing and
sign a suitable contract to purchase the Premises within the
period of thirty (30) days after the mailing of the notice.
Failure of Tenant to accept the offer to purchase or sign a
contract within the period provided shall nullify and void the
privilege to Tenant, and Landlord shall be free to s~ll the
Premises to any other person, firm or corporation. Notwithstand-
ing the above and foregoing, the right of first refusal as
provided for herein shall not be triggered or come into effect
should the City wish to transfer, conveyor sell the Premises to
a non-profit organization, land trust, or similar entity.
IN WITNESS WHEREOF, this Lease has been executed by the
parties on the date(s) as specified below.
CITY OF ASPEN
()/ 5. ($~
By: ~
John S. Bennett, Mayor
Date: A'Pi2-IL eg Ic;q~
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ATTEST:
(SEAL)
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PEARCE EQUITIES GROUP II
LIMITED LIABILITY COMPANY
Title: Member
Date: 7/7/77 /7'?'..7
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EXHIBIT "A"
TO
AMENDED GROUND LEASE
A parcel of land situated in section 2 and section 11, Township 10
South, Range 85 West of the sixth Principal Meridian, County of
Pitkin, State of Colorado; said parcel being more particularly
described as follows:
Commencing at the South Quarter Corner of section 2, a 1954 Bureau
of Land Management Brass Cap in place; thence N. 40031'02" W.
397.79 feet to the True Point of Beqinninq; thence S 00'58'04" W.
964.49 feet to the northerly right-Of-way of Colorado state Highway
No. 82; thence N. 60'51'38" W. along said right-Of-way (according
to the Colorado Department of Highways Project No. 2012-B) 740.77
feet; thence continuing along said right-Of-way along the arc of
a curve to the right having a radius of 5680.00 feet and a central
angle of 07008' 07", a distance of 707.35 feet (chord bears N.
57"17'35" Wo 706.89 feet) to the westerly line of Lot 21; thence
leaving said right-of-way ,N. 00'58'04" E. along the westerly line
of said Lot 21 226.41 feet;, thence N. 02028'04" E. along the
westerly line of said Lot 21 and Lot 17,1308.04 feet to the
existing southerly right-Of-way fence of County Road No. 12-A;
thence leaving said westerly lot line S. 85"42'33" E. along said
southerly right-of-way fence 7.72 feet; thence continuing along
said right-Of-way fence N. 88'00'39" E. 857.50 fee,t; thence S.
07"16'09" W. along a north-south fence an~ fence extended, 76i.Ol
feet; thence S. 36"21'42" E. 725.00 feet to the True Point of
Beqinninq; said parcel containing, 45.48 acres more or less.
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EXHIBIT "B" TO AMENDED
GROUND LEASE
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8ECURED "YON-RBCOURSE "PROM:q:;SQPY-,. NOTE
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$1,075,000".00
Aspen, Colorado
August 10, 1987
Th~s Note is '~xecuted this loth day"of August; 1987, by the
city of Aspen, a municipal corporation organized under the laws
of the State of colorado ("Maker"), in'favor of the,Zoline
Foundation, a not-for-profit corporation organized under the la~s
of the State of, Illinois ("Holder").
1. Promise to Pay. For value received, Maker hereby
promises to pay to the order of Holder the principal sum of
$1,075,000.00, without notice or grace, together with interest at
the rate of 10% per annum from the date hereof on the unpaid
balance of principal outstanding from time to time as hereinafter
provided, all in lawful money of the united States of America
(e which constitutes l~gal tender for payment of dehts, public and
private, at the time of payment, such principal and interest to
be paid as provided herein.
2. Payment Provisions.
(a) Installments of accrued interest in the amount of
$26,875.00 each shall be due and payable on November 10, 1987,
and on the lOth day of each February, May, August and November
thereafter to and including August 10, 1993.
(b) Installments of principal in the amount of
$107,500.00 each shall be due and payable on August 10, 1993, and
on August 10 of each year thereafter to and including August 10,
2002.
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(c) , On November 10, 1993, and on 'the loth da:~i"6f each .'
February, May, August and November thereafter to ~nd including
August 10, 2002, installments of accrued interest on the
principal balance of the Note then outstanding shall ~e due:and
payable.
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(d)
The entire unpaid principal balance and accrued
interest thereon snall be due and payable August 10, 2002. A
schedule of interest and principal payments, assuming no pre-
payments of principal, is attached to this Note and incorporated
herein by this reference.
3. Place of Payment. Payment shall be made by Maker to ~
Holder at c/o Joseph T. Zoline, GZ4 North ca~on Drive, Beverly
Hills, california 90210 or at such other address as may be
designated from time to time by Holder by written notice to
Maker.
.-:
4. Prepayment Privileqe. Maker shall have the right to
prepay any or all of the principal balance of the Note at any
time, provided that any such payment shall first be applied to
pay accrued interest on the Note to the date of such payment and
the balance thereof shall be applied against the principal
installments provided for herein in the inverse order of their
maturity.
5. Default.
(a) The failure of Maker to pay any installment of
interest or principal when due hereunder shall constitute a
default.
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,(bf' The' 'takin<J.' of 'any action' b;(,Maker, 'or ,omission. to
take any action, which shall result in the'impo'si'tion of a lien
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superior to that imposed by the First Deed ,of Trust or Pledge
Agr~eiuent referred to in paragraph 7 hereof shall also constitute
a default..,
(c) Upon the occurrence of any default under this Note
which is not remedied within thirty days after written notice to
Maker the maturity of this Note may be accelerated and the, entire
balance of principal and accrued interest shall become at once
due and payable.
6. Costs of collection. Make and all parties now or
hereafter liable for the payment of this Note, primarily or
secondarily, directly or indirectly, and whether as endorser,
guarantor, surety, or otherwise, agree to pay all costs and
~ expenses, including~reasonable attorneys' fees, incurred in
collecting this Note or any part thereof or in preserving,
securing possession of, or realizing upon any security for this
Note, whether or not legal proceedings are commenced.
7. Security for Note. The prompt payment when due of all
installments of interest upon and principal of this Note is
secured by a Deed of Trust upon certain property in Pitkin
County, Colorado, and by a Pledge Agreement, both of even date
herewith.
8.
Non-Recourse.
In the event of default hereunder,
Holder shall not be entitled to enforce payment out of any assets
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subject of the
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Deed
of Maker other than the property which is the
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of Trust and the property "hich is the subject of the ,pl"edge' ::,~J:'
, '.%... 'Agreement referred to in Paragraph 7 above.
-,< of a default as defined in 1"aragraph 5 hereof, and its
Upon the occurrence
'continuance for thirty days after written notice thereof to'.
Haker, Haker shall, upon Holder's written request reconvey to
Holder all of the property covered by the Deed of Trust and
Pledge Agreement r'eferred to in Paragraph 7 free and clear of any
liens or encumbrances, except that imposed by the Deed of Trust.
and the Pledge Agreement. Nothing herein shall deprive Holder of
its right to foreclose upon the property which..is the subject of
said Deed of Trust and the property which is the subject of said
Pledge Agreement, but Maker shall not be liable for any
deficiency judgment in any foreclosure proceeding.
9. Waiver of Demand, etc. Maker and all parties now or
~ hereafter liable f~~ the payment of this Note, primarily or
secondarily, directly or indirectly, and whether as endorser,
guarantor, surety, or otherwise, severally waive presentment,
demand, notice of dishonor and of nonpayment, protest and notice
of protest, and diligence in collection, and each consents to
substitution, release, or impairment of collateral, the taking of
additional collateral,' extensions of time for payment, renewals
of this Note, and acceptance of partial payments, whether before,
at, or after maturity, all or any of which may be done or made
without notice to Maker or any of said parties and without
affecting its and their joint and several liabilities to Holder.
10.
Successors to Maker or Holder.
The term "Maker" as
(a
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us",d,berein' shall, 'include the city.?f:Aspen a,nd any party Hho may
subsequently become primarily liabie for the payment of this
Note. , The term "Holder" as used h~rein shall include the
originai'payee of this Note, or" if this Note is transferred, the
then transferee of this Note, provided that, until Hritten notice
is given to Maker designating another party as Holder, Maker may
consider the Holder to be the original payee or the party last
designated as Holder in a Hritten notice to Maker.
11. Notices. Whenever any notice, demand, or request is
required or permitted under this Note, such notice, demand or
request shall be in writing and shall be deemed to have been
properly given or served when delivered in person to the proper
party or when deposited in the united states mails, with adequate
postage prepaid and sent by registered or certified mail with
return receipt requested, to the addresses set forth below or at
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such other addresses as are specified by written notice given in
accordance with the terms hereof:
To Maker:
,city of Aspen
c/o city Manager
130 South Galena Street
'Aspen, Colorado 81611
To Holder:
The Zoline Foundation
c/o Joseph T. Zoline
624 North Canon Drive
Beverly HillS, California 90210
12. captions for Convenience. The captions to the
paragraphs are for convenience only and shall not be considered
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in interpl.-eting the 'provi~'ions',1iereof.:
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13. Governinq Law.'
Regardless of the place of its
this Note shall be construed and
execution or enforcement,
enforced in accordance with ,t:he la\~s of the S'tate of Colorado.
ATTEST:
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;( tc:T7t /'" -' J.-', .L&<.':.-1;"'---
Kathryn S."iKoch,'City Clerk
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CITY 9F ASPEN, COLORADO
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By ~_.?/
illiam L. stir:l~
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pote
Purchase pc i ce
7/20 Oo~n PiJ'ylncnt
~.~10 o~~n P'~ncnt
II '
;'k 8
11/l0/B8
2/10/89
5/l0/89
8/,10/89
11/l0/89
2/10/90
5/10/90
8/l 0/90
11/10/90
2/l0/91
5/10/91
8/10/91
11/10/91
2/10/92
5/10/92
8/l 0/92
11/l0/92
2/l 0/93
5/10/93
8/10/93
11/10/93
2/l 0/94
5/10/94
8/l0/94
11/l0/94
2/l 0/95
5/10/95
8/l 0/95
11/10/95
2/l0/96
5/l 0/96
.,,8, 0/,9 q
/96
\i 97
\\~ ,97.
8/l0/97
11/10/97
2/10/98
5/l0/98
8/l0/98
11/10/98
2/10/99
5/l0/99
8/10/99
11/10/99
2/16/00
5/l0/00
8/10/00
11/10/00
2/10/01
5/10/oi
8/10/01
11/10/01
2/10/02
5/10/02
8/10/02
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PaYment., .
Pr:incip'lIl interest
Totol
;,50, UO'O, DO
. S~25'0 ~ uOO. (j"0
$107,500,00
107,500.00
107,500.00
107,500,00
107,500.00
107,500.00
107,500.00
107,500.00
107,500.00
107,500.00
':,O,uOo.OO
. .50,000.00
f.26,87S~OO ~.26,87S.00
<26,875,00 ;26,875.00
'26,8/5,00 '26,8/5.00
',26,875.00 ',26,875.00
'26,875.00 '26,875.00
'26,875,00 '26,875.00
'7.6,875,00 '26,875.00
126,875.00 '26,875,00
$26,875.00 '26,8/5.00
'26,8/5.00 S26,875.00
$26,8/5,00 ;26,8/5.00
$26,875.00 S26,875.00
$7.6,875.00 526,875.00
$('6,875.00 ~26, 875 .-00
$26,8.75_00 ~26,875'.OO
$26,875.00 526.875.00
'26,875.00 $26,8/5.00
'26,875.00 526,875.00
<26,875.00 526,8/5,00
'26,875.00 ;26,875,00
$26,875,00 526,875.00
526,875.00 526,8/5,00
$26,875,00 526,875.00
$26,875,00 5134,375.00
524,187.50 524,187.50
$24,187.50 $24,187.50
$24,187.50 524,187.50
$24,187,505131,687.50
$21,500.00 521,500.00
$21,500.00 521,500.00
$21,500.00 $21,500,00
$21,500.00 $129,000.00
$18,812.50 $18,812.50
$18,812,50 518,812.50
$18,812.50 518,812.50
$18,812,50 5126,312.50
$16,125.00 S16,125.00
$16,125,~0 516,125,00
516,125.00 516,125.00
$16,125.005123,625.00
$13,437.50 513,437,50
$13,437.50 513,437,50
$13,437.50 513,437,50
$13,437.50 $120,937.50
$10,750,00 $10,750,00
510,750.00 510,750.00
510,750.00 510,750.00
$10,750.00 5118,250.00
58,062.50 58,062,50
$8,062.50 $8,062,50
$8,062.50 58,062,50
$8,062,50 5115,562,50
$5,375.00 55,375.00
$5,375.00 $5,375.00
$5,375.00 $5,375.00
$5,375.00 $112,875.00
$2,687.50 $2,687.50
$2,687.50 $2,687.50
$2,687.50 $2,687.50
$2,687.50 $110,187.50
Biltoncc
>1,375,000,00
5-1,325,000.00
",075,000.00
>1,075,000:00
51,075,000.00
~.1,07S,000.OO
$1,075,000,00
$1,075,000.00
$1,075,000.00
n, 075,000,00
",075,000.00
5.1.075,000.0,0
$1,075,000,00
",075,000.00
5.1,075,000.00
$1,075,000.00
$1,075,000.00
$1.075,000.00
Sl,075,000.00
>1 ,075,000,00
$1,075,000.00
$1,075,000,00
$\,075',000.00
",075,000.00
>1,075,000.00
S1,075,000.00
5967,500,00
'967,500.00
$967,500,00
$967,500.00
$860,000.00
S860,OOO.00
S860,OOO.00
5860,000.00
$752,500.00
$752,500.00
$752,500,00
$752,500.00
'645,000.00
5645,000.00
5645,000.00
5645,000.00
5537,500.00
$537,500.00
5537,500.00
$537,500.00
5430,000.00
'"30,000.00
$430,000.00
$430,000.00
$322,500.00
$322,500.00
$322,500.00
5322,500,00
$215,000.00
$215,000,00
$215,000.00
$215,000.00
$107,500.00
$107,500.00
$107,500.00
$107,500.00
$0.00
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EXHIBIT "c" TO
AMENDED GROUND LEASE
.
WATER RIGHTS DESCRIPTION
In the Herrick Ditch No. 296 the right to divert and appropriate
1.28 c.f.s. of water under Priority No. 683 with appropriation date
of August 1, 1951, as awarded to the Herrick Ditch by the District
Court of Pitkin County, Colorado, on June 20, 1958.
In willow Creek Ditch No. 93 the right to divert and appropriate
a total of 1.5 c. f. s. of water under three decrees, namely,
Priority No. 129 with appropriat'ion, date of July 1, 1885, as
awarded to the willow Creek Ditch by the District Court of pitkin
county on May 11, 1889; Priority No. 174 with appropriation date'
of May 1, 1887, as decreed on May 11, 1889; and Priority No. 209
with appropriation date of April 15, 1891, as decreed on June 23,
1892.
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