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AMENDED AND RESTATED PLANNED UNIT DEVELOPMENT AGREEMENT
HOTEL JEROME - RENOVATION AND ADDITION
THIS AGREEMENT made and entered into this ?}_— day of
(,;1 , 1986 , by and between THE CITY OF
ASPEN, COLORADO, a municipal corporation and home rule city ( here-
inafter referred to as " City") , and HOTEL JERCME LIMITED PARTNER-
SHIP and MARKETING CORPORATION OF AMERICA ( hereinafter collec-
tively referred to as " Owner") ,
W I T N E S S E T H:
WHEREAS, Owner owns that real property and the building situ-
ated thereon, commonly known as the " Hotel Jerome" , more particu-
larly described as follows:
tots A, B, C, D, E, F, G, H, I, 0, P, Q, R, S
and the East 20 feet of Lot N, Block 79,
together with the East 170 feet of the vacated
alley in said Block 79, City and 4bwnsite of
Aspen , County of Pitkin , State of Colorado ;
WHEREAS, Owner' s predecessor in title, John F. Gilmore sub-
mitted to the City for approval , execution and recording a final
Planned Unit Development (PUD) plat pertaining to the development
of that project known as the " Hotel Jerome - Renovation and Add i-
t ion" ( hereinafter referred to as the " Initial Project" ) ; and
WHEREAS, Owner' s predecessor in title entered into a Planned
Unit Development Agreement with the City for said Initial Project ,
entitled "Planned Unit Development Agreement - Hotel Jerome -
Renovation and Addition" , dated April 20, 1983 , recorded in Book
444, Page 750, Pitkin County Clerk and Recorder' s Office ; and
WHEREAS, pursuant to an application dated November 29, 1985,
which application and all representations set forth therein are
incorporated by reference herein , Owner submitted to the City an
application to revise the Initial Project into two phases as fol-
lows :
- Phase I: Renovation of the existing building , commonly
known as the Hotel Jerome , pursuant to Building Permit Application
and Building Permit No . 7807, which renovation was completed and a
certificate of occupancy issued therefor on or about December 26,
1 985;
- Phase II: An addition to the currently existing and reno-
vated Hotel Jerome , as defined and described on the amended plat,
specifically described as Amended and Restated PUD Plat ( herein-
after " Amended Plat") , a copy of which is attached hereto and
incorporated herein by reference as Exhibit "A" .
Collectively, Phase I and Phase II may be referred to herein
as " the Project" ; and
WHEREAS, City and Owner desire to amend the agreement per-
taining to the Initial Project , dated April 20, 1983, to reflect
Phase I and a redesigned Phase II, as well as various matters set
forth below , into one comprehensive agreement which will amend and
supercede the agreement dated April 20, 1983 (hereinafter this
agreement will be referred to as " Amended Agreement" ) ; and
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WHEREAS, Owner has submitted to the City for approval , execu-
tion and recordation , the anended plat for the Project , and City
is willing to approve , execute and accept for recordation the
anended PUD plat on the agreement of Owner to the matters herein-
after described , subject to all of the requirements , terms and
conditions of Article VIII of the Municipal Code as presently
constituted and such other laws , rules and regulations as are or
may be applicable ; and
WHEREAS, it is the intent of Owner and City that the amended
plat shall anend , supercede and replace the plat recorded April
20, 1983 ; and
WHEREAS, the City has imposed conditions and requirements in
connection with its approval , execution and acceptance of the
amended plat and such matters are necessary to protect , promote
and enhance the publ is health , safety and wel fare ; and
WHEREAS, under authority of Section 20-16 (c) and Section
24 -8. 1 et seg. of the Municipal Code of the City of Aspen , the
City is entitled to assurances that the matters hereinafter set
forth and agreed to will be faithfully performed by Owner and
Owner' s successors and assigns ; and
WHEREAS, Owner is willing to enter into such agreement( s)
with and to provide such assurances to the City.
NOW, THEREFORE, in consideration of the premises , the mutual
covenants herein contained , and the approval , execution , and
acceptance of the amended plat for recordation by the City , it is
agreed as follows :
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1 . Amended Agreement and Phasing. City and Owner agree
that this amended agreement shall amend and supercede that Planned
Unit Agreement Hotel Jerome - Renovation and Addition , dated April
20, 1983, recorded in Book 444, at Page 750, office of the Pitkin
County Clerk and Recorder , and that the amended plat shall super-
cede and replace the plat dated May 10, 1983, and recorded in Book
14 at Page 88, office of the Pitkin County Clerk and Recorder .
2. Sidewalks, Curbs and Gutter. City acknowledges that
Owner has constructed a new sidewalk along the Main Street fron-
tage and has or will repair the existing sidewalks on Mill Street,
and shall maintain the sidewalks along Main Street and Mill Street
in accordance with the sidewalk and improvements site plan , dated
as of this Agreement , and annexed hereto and incorporated herein
as Page 3 of Exhibit " A" to this agreement and the amended plat .
Prior to and as a condition of the issuance of a certi-
ficate of occupancy for Phase II, or within a reasonable time
thereafter as agreed to in writing by the City Engineer , Owner
shall construct new sidewalks along the Project' s road frontages
on Nbnarch and Bleeker Streets (6-foot minimum widths) together
with curb and gutter , in accordance with the landscape plan
annexed hereto and incorporated herein as Page 3 of Exhibit "A" to
this agreement and the amended plat , as reasonably determined by
the City Engineer . Owner shall repair or replace any existing ( or
newly installed) sidewalks , curb or gutter which may be damaged
during construction. The current estimated cost of such sidewalk,
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curb and gutter and improvements is contained in Exhibit "B"
attached hereto and incorporated herein .
3. Additional Improvements. Prior to and as a condition of
the issuance of a certificate of occupancy for Phase II, Owner
shall provide and install such waterlines and fire hydrants , sani-
tary sewer lines , storm drainage improvements and storm sewers,
and such other improvements , as are depicted on the plat and as
may be reasonably required pursuant to Section 20-16 ( a) of the
Municipal Code, the schedule and estimated cost which is set forth
in Exhibit " B" hereto. The current estimated cost of such
improvements does not include sewer and water taps and related
fees , which will be calculated and paid prior to the issuance of a
building permit for Phase II, according to the then- standard prac-
tices and charges of the sewer district and water department.
Owner and City agree as follows with regard to the
installation of such additional improvements :
( a) Owner , at Owner' s expense , shall install a new
8- inch waterline from the 12- inch water main in Monarch Street
east on Bleeker Street to the point where the hotel service
begins , a distance of 240 feet. The waterline shall be looped
into the Mill Street main , and Owner agrees to pay for the excava-
tion , pipe , connections and patching necessary to complete this
loop.
( b) City and Owner agree that Bleeker Street between
Monarch and Mill Streets has a steep grade and that this problem
situated will be exacerbated by the shading of Bleeker Street ,
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resulting from the construction of Phase II and use of Bleeker
Street for the garage entrance and delivery site for the Project .
The City and Owner agree to begin the regrading of this block of
Sleeker Street on or before May 1 5, 1987, in order to mitigate
traffic problems associated with the steepness of the grade and
shading caused by the Project , in accordance with a regrading plan
to be reasonably approved by the City Engineer . Such regrading
shall be accomplished in accordance with applicable requirements
of the Aspen Municipal Code and established City procedures and
state law regarding the construction and installation of public
improvements . City shall pay one- half the cost of necessary
surveys , street plans , regrading , repaving and replacement of
improvements to neighbors on the north side of Bleeker , provided
the following conditions are met :
(1 ) The total cost shall be determined and calcu-
lated prior to the issuance of a building permit for Phase II.
(2 ) If the total cost is in excess of $42, 000. 00,
the additional expenditure on the part of the City shall be
approved by the City Council . The City' s contribution to the cost
of improvements will be made on or before May 15, 1987.
4. Landscapincylmprovements. In accordance with Section
24-8. 16 of the Municipal Code , all required landscaping for the
project shall substantially conform to the landscape plan , annexed
hereto as Page 3 of Exhibit " A" and the amended plat , which plan
shows the extent and location of all plant materials and other
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landscape features , flower and shrub bed definition , proposed plat
material at mature sizes in appropriate relation to scale , species
and size of existing plant material , proposed treatment of all
ground surfaces ( e .g . , paving , turf , gravel , etc .) , location of
water outlets and a plant material schedule with common and
botanical names , sizes and quantities. Landscaping will be com-
pleted in a logical phasing sequence commensurate with the phasing
of the improvements contemplated in the construction schedule , but
in no event later than one year after the date of the certificate
of occupancy for Phase II.
The current estimated cost of the landscaping improve-
ments for Phase II in the public rights-of-way , as determined by
the City Engineer , is Twenty-two Thousand Seven Hundred Thirty-six
Dollars ($22, 736. 00 ) .
If. Owner has not been issued a building permit for Phase
II on or before May 1 , 1987, Owner shall submit a detailed interim
landscaping plan for approval by the City Council , upon the recom-
mendation of the Planning Director and City Engineer , to be com-
pleted by July 1 , 1987. Owner agrees to spend at least Fifty
Thousand Dollars ($ 50, 000. 00 ) for the purpose of landscaping the
site according to the interim plan to be in effect until the com-
mencement of construction of Phase II.
It is the mutual understanding of the parties that a
certificate of occupancy may in fact issue for the project even
though the landscape improvements have not yet been completed , so
long as the portion of the financial guarantee provided for in
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Section 6 hereof which covers the estimated cost of such unfin-
ished landscaping remains available to City pursuant to the terms
of said Paragraph 6 .
5. Construction_Schedule and Program. Owner and City mutu-
ally acknowledge that exact construction schedules cannot be sub-
mitted or agreed to at this time. It is anticipated that con-
struction will begin in the summer of 1986, for completion for the
summer of 1987. Prior to the issuance of a building permit for
Phase II and as a condition precedent to the issuance thereof ,
Owner agrees to provide City Engineering Department with a
detailed construction schedule , to the satisfaction of the City
Engineer and Chief Building Official in the exercise of their rea-
sonable discretion , which construction schedule shall particularly
address how construction phasing will best accommodate under the
following circumstances :
( a) Barricading and provision of pedestrian protection,
( b) Maintenance of adequate public vehicular access and
circulation in the development area ,
( c) Excavation access and large truck traffic
circulation and staging areas ,
( d) Construction equirment access and storage .
Owner agrees that all construction material shall be
stored on site and that all workers will be instructed to park in
the Rio Grande parking lot to lessen the impact on the neighbor-
hood.
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The construction schedule shall be verified by the sig-
natures of the City Engineer and the Chief Building Official and
recorded as a suppl em entar y ex hib it hereto . Any amendments to the
construction schedule shall be reviewed by the Planning Director ,
verified by the signatures of the City Fhgineer and Chief Building
Official , and , at the option of City , recorded as supplementary
exhibits hereto .
6. Financial Assurances. In order to secure the per for-
mance of the construction and installation of the landscaping
improvements and site improvements described in Paragraphs 2, 3
and 4 above , and to guarantee 100% of the estimated cost of non-
landscaping improvements and 125% of the landscaping improvements ,
which estimated costs approved by the City Engineer are $40, 316. 00
( non- landscaping improvements) and $22, 736. 00 (landscaping
improvements) . Owner shall guarantee by cash escrow with the
City, or a bank or savings and loan association ; or an irrevocable
site draft or letter of commitment fran a financially responsible
lendor that funds in the amount of such estimated cost are held by
it for the account of Owner for the construction and installation
of the above-described improvements . Said guarantee shall be
delivered to the City prior to the issuance to Owner of a building
permit for Phase II, and shall be in a form acceptable to the City
Attorney and City Manager , and shall give the City the uncondi-
tional right , upon clear and unequivocable default by the owner ,
to withdraw funds as necessary and upon demand to partially or
fully complete and/or pay for any of such improvements or pay any
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outstanding bills for work done thereon by any party, with any
excess guarantee amount to be applied first to additional adminis-
trative or legal costs associated with any such default and the
repair of any deterioration in improvements already constructed
before the unused remainder ( if any) of such guarantee is released
to Owner. As portions of the improvements are completed , the City
Engineer shall inspect them , and upon approval and acceptance , he
shall authorize the release of the agreed estimated cost for that
portion of the improvements , except that ten ( 10 ) percent of the
estimated cost shall be withheld until the proposed improvements
are completed and approved by the City Engineer . Owner shall
guarantee by a maintenance bond or other suitable means , the
repair of any existing improvements damaged during the construc-
tion of new improvements as reasonably determined by the City
Eng ineer . Owner shall in no way be relieved of any obligations to
make the improvements , nor is the City obligated to assure the
responsibility for any improvements , by reason of the acceptance
or approval of any guarantees .
Furthermore , Owner hereby agrees to and does hereby war-
ranty all such improvements to accepted standards of good workman-
ship for a period of one ( 1 ) year from and after acceptance there-
of in writing by City. In addition to this warranty, Owner shall
obtain from its contractors customary warranties of good workman-
ship with the City as beneficiary , with respect to all improve-
ments required by Sections "2 " , "3 " and "4 " hereinabove.
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7. Miscellaneous Issues. Owner agrees to the following
items as a condition of this agreement and the approvals contained
herein :
a) Owner shall remove overhead wires in the middle of
the garden prior to the issuance of a building permit for Phase II
for safety reasons .
h) Owner , at Owner' s sole cost and expense , shall
repair the underground electric line servicing the street lights
on Mill Street which was severed during construction of Phase I.
Such repairs shall meet applicable City specifications .
c) A transformer and emergency generator are located
on the western edge of the garden. Owner is exploring moving
these to a new location on the site . Should this prove to be
impractical , Owner shall work with neighbors to lessen sound
transmissions from the generator .
d ) Owner shall provide guest transportation and air-
port pickup and delivery. Any vehicle owned , possessed or oper-
ated for such purposes by Owner , shall be stored in the under-
ground garage.
e) Owner has received cond itional use approv al from
the Planning and Zoning Commission for the expansion of the hotel
in the CC zone district , special review approval to vary the trash
and utility access area , and special review approval to utilize
the garden area for forty-four (44 ) outdoor dining seats associ-
ated with the restaurants in the Project . Such outdoor dining
seats shall not diminish allowable indoor seating .
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8. Enloyee_Housing. As a further inducement to the City
to approve the Project in two phases as set forth in this amended
agreement , Owner has agreed to and does hereby confirm and acknow-
ledge its obligation to provide housing for employees of the pro-
ject , as required by the Municipal Code and regulations of the
City of Aspen , or its designee , in connection with the Project .
With regard to Phase I, Owner hereby agrees that Booms No . " 1 " ,
"2" , "3" and "4" in the hotel annex , as such rooms are designated
on the amended plat , shall be and hereby are restricted exclu-
sively to use as employee housing under and in accordance with
such City of Aspen employee housing use , occupancy, rental and
sales price guidelines as may be in effect and applicable fran
time to time, sufficient to house four (4 ) employees of the Pro-
ject and restricted to a maximun occupancy of one (1 ) employee per
bedroom . Such rooms shall be used solely by hotel employees , and
verification of an employee' s employment qualifications shall be
accomplished by the City, or its designee , prior to and as a con-
dition of occupancy of any of the above identified rooms . Said
rooms shall not be utilized by any person whose use and occupancy
thereof is not verified as set forth above. The dedication and
covenants contained herein shall be deemed a burden upon and to
run with the title to the Proj ect and shall be binding upon the
Owner and Owners, successors and assigns and upon all other per-
sons or entities having any right , title or interest in or to the
Project ( or bedrooms) or any part thereof, and shall inure to the
benefit of and be specifically enforceable by the City of Aspen or
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its designee by appropriate legal action , including injunction ,
abatement or eviction of non- complying tenancies , all for a period
of fifty (50 ) years from the date of recording of this amended
agreement in the Pitkin County Clerk and Recorder' s office .
Neither this dedication nor any of the covenants contained herein
shall be modified , released or waived in any respect except by
written instrument executed by both Owner or its successor or
assigns in the City of Aspen, Colorado , and duly recorded in the
Pitkin Gounty Clerk and Recorder ' s office . Further , Owner repre-
sents and warrants that any and all per sons , firms or entities
having any lien , encumbrance or interest in the Project have con-
sented to the employee housing dedication and restrictions herein,
and that this amended agreement shall not be recorded in the
office of the Pitkin County Clerk and Recorder , nor shall the
approvals granted herein take effect , without the written consent
(or subordination) of any such person .
With regard to the requirement for employee housing in
connection with Phase II, and as a condition to the issuance of a
certificate of occupancy with respect to Phase II, the City
acknowledges that such employee housing requirements may be satis-
fied by deed restricting seven (7 ) bedrooms , specifically Wits
No. 8, 11, 12, 13, 14, 15 and 16 of the Cortina Lodge, Aspen ,
Colorado . Such units shall be available for fifteen ( 15 )
employees of the Project , and the rent therefor shall be deed
restricted to the low income rental guidelines in effect at the
time of deed restriction , and may be adjusted annually according
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its designee by appropriate legal action , including injunction ,
abatement or eviction of non- complying tenancies , all for a period
of fifty ( 50 ) years from the date of recording of this amended
agreement in the Pitkin County Clerk and Recorder' s office .
Neither this dedication nor any of the covenants contained herein
shall be modified , released or waived in any respect except by
written instrument executed by both Owner or its successor or
assigns in the City of Aspen, Colorado , and duly recorded in the
Pitkin County Clerk and Recorder' s office . Further , Owner repre-
sents and warrants that any and all persons , firms or entities
having any lien , encumbrance or interest in the Project have con-
sented to the employee housing dedication and restrictions herein,
and that this amended agreement shall not be recorded in the
office of the Pitkin County Clerk and Recorder , nor shall the
approvals granted herein take effect , without the written consent
(or subordination) of any such person .
With regard to the requirement for employee housing in
connection with Phase II, and as a condition to the issuance of a
certificate of occupancy with respect to Phase II, the City
acknowledges that such employee housing requirements may be satis-
fied by deed restricting seven (7 ) bedrooms , specifically Wits
No. 8, 11, 12, 13, 14, 15 and 16 of the Cortina Lodge, Aspen ,
Colorado . Such units shall be available for fifteen ( 15 )
employees of the Project , and the rent therefor shall be deed
restricted to the low income rental guidelines in effect at the
time of deed restriction , and may be adjusted annually according
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to the annually adopted City guidelines . Rents shall include all
commonly metered or assessed utilities , management cost and taxes .
Employees employed directly by a. ner shall be given first priority
to occupy the units. No rooms shall be rented for a period of
less than thirty ( 30 ) days without the permission of the City
Council or its housing designee. If vacancies occur, Owner shall
be permitted to rent to other employees and music students in
accordance with the low income price and income guidelines adopted
by the City. The City Council or its housing designee shall have
the right to review rents and confirm employee status prior to and
as a condition of employee' s occupancy for compliance with adopted
City guidelines . The employee housing to be provided with respect
to Phase II shall comply with the housing size , type , income and
occupancy guidelines of the City of Aspen and the provisions of
Section 24-11 . 10 of the Municipal Code. The employee housing com-
mitment , with regard to Phase II, shall be performed in the fol-
lowing manner :
Contemporaneously with the execution of this agreement ,
Owner has signed , acknowledged and delivered into escrow with the
Aspen City Clerk a "Dedication of Real Property to Employee Hous-
ing Restriction and Guideines" covering the Cortina Lodge , which
dedication is to be held by the City Clerk subject to the follow-
ing instructions : At the sane time that the City issues and
delivers to Owner a valid and effective certificate of occupancy
with regard to Phase II of the Project , the City Clerk shall and
is hereby authorized , empowered and instructed to record in the
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office of the Pitkin County Clerk and Recorder , the dedication
covering the aforesaid seven (7 ) bedrooms in the Cortina Lodge .
Owner agrees to confirm to City the status of title to the
Cortina Lodge property as follows :
At the time that Caner applies for a certificate of
occupancy for Phase II of the Project, Owner shall deliver to the
City Attorney a current Owner' s and Encumbrances Report issued by
a local title insurance company covering the property , together
with either a release or a subordination of any monetary liens
disclosed by such reports as those liens may affect the subject
dedications. Additionally, Caner covenants that from and after
the date hereof any entities lending funds secured by such
employee housing property shall be given actual notice of the
dedication requirements contained in this agreement .
Caner shall have the right to substitute the required off-
site employee housing for an aggregate of fifteen (15) employees,
provided ( i) the location, size and configuration of such substi-
tute housing is acceptable to the City of Aspen , as reflected by
resolution of the City Council , ( ii) the minimum number of accep-
table employee housing units required to house fifteen (15 )
employees remains available at all times , and ( iii) deed restric-
tions , of sane legal effect as those described above with respect
to the Cortina Lodge, are imposed upon the substitute units prior
to release of the Cortina Lodge units and occupancy of the substi-
tuted units . Contemporaneously with the filing of deed restric-
tions in accordance with the above conditions , the City shall
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release the deed restrictions upon the off- site units which have
been replaced . Further , should Owner secure more units than are
necessary to house fifteen ( 15 ) employees off site , Owner' s
on-site employee bedroom requirement for Phase I ( i .e . the annex
Rooms No . 1 , 2, 3 and 4 ) shall be reduced and deed restrictions
released by the exact mount of housing as may be acceptable to
City as reflected by resolution of the City Council .
Further , should Owner at the time of application for
certificate of occupancy for Phase II of the Project , not have
provided sufficient units to house fifteen (15) employees as here-
inabove described , Owner shall , prior to the issuance of the cer-
tificate of occupancy for Phase II , and as a condition precedent
thereto , covenant and restrict a sufficient number of bedrooms
within Phase II of the Project necessary to cover any shortfall
in the off- site housing requirements , which deed restrictions
shall be the sane in legal effect as Owner' s off- site housing
requirements would have been required to meet under the terms
hereof , such restricted bedrooms shall thereafter be released from
said covenants when Owner does provide the required number of
off- site employee bedrooms in the manner above required .
Further , Owner warrants that , at the time of the issu-
ance of a certificate of occupancy for Phase II , all persons , or
entities having any lien , encumbrance or interest in any of the
employee housing , deed restricted , properties will have consented
( or subordinated) to such deed restrictions ; and that no occupancy
of Phase II will be permitted without the written consent (or
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subordination) of any such person , unless otherwise agreed to in
writing by City .
The deed restriction and covenants restriction and
release form shall be approved as to form by the City Attorney
prior to recordation.
9. Parking. As a condition to the approvals granted herein
and herewith, Owner shall provide parking in connection with the
Project in the manner hereinafter described :
- Phase I. In the event a building permit has not been
granted for Phase II by October 1 , 1986, Owner shall provide no
less than twenty- seven (27) on-site parking spaces , said spaces to
be ready for use by Isbvember 1 , 1986 , and to remain in use until
the beginning of construction of Phase II .
- Phase II. As a condition of the approvals granted
herein, Owner agrees to provide fifty-one (51 ) parking spaces
on- site , enclosed in a parking garage according to representations
made during the approval process and noted on the amended plat .
these fifty-one (51 ) parking spaces shall include , and shall not
be in addition to , the twenty- seven (27 ) spaces to be provided by
Owner in connection with Phase I.
10. Encroachments . Owner shall obtain such licenses as may
be necessary with respect to encroachments in City rights-of-way .
Application for such encroachments shall be pursued by Owner inde-
pendently of the approvals contained herein.
11. Periodic Reviews . Owner agrees that every six months
following the date of this agreement until construction is com-
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14. Use and Maintenance of Open Space. Owner shall occupy
those portions of the amended plat designated as "open space" con-
sistent with such uses and occupancy as permitted by applicable
provisions in the Aspen Municipal Code pertaining to open space ,
existing and as in effect as of the date of the execution of this
agreement .
Further , Owner agrees to maintain in a clean and attrac-
tive condition and good state of repair all such open space con-
tained within the Project.
15. Non_Compliance and Request for Amendments or Extensions
by Owner. In the event that the City Council determines that the
Owner is not acting in substantial compliance with the terms of
this agreement , the City Council may issue and serve upon Owner a
written order specifying the alleged non- compliance and requiring
the Owner to cease and desist from such non- compliance and rectify
the same within such reasonable time as the City Council may
determine . Within twenty (20 ) days of the receipt of such order ,
the Owner may file with the City Council either a notice advising
the City Council that it is in compliance or a written petition
requesting a hearing to determine any one or both of the following
matters :
( a) Whether the alleged non- compliance exists or did
exist ; or
( b) Whether a variance , extension of time or amendment
to this agreement should be granted with respect to any such non-
compliance which is determined to exist .
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plete , Owner will meet with the City Planning Director for the
purpose of informing the Planning Director as to Owner' s progress
in developing the project pursuant to the terms and provisions of
this agreement and the approvals encompassed hereby. The Planning
Director shall report to the City Planning and Zoning Commission
and the City Council on the outcane of these meetings. Owner and
City recognize that these meetings are not opportunities for Owner
to avoid complying with the requirements of this amended agree-
ment , but are for the purpose of providing progress reports and
developing mutually acceptable solutions to any problems which may
be encountered during the construction.
12. Incorporation of Representations and Written Submittals.
Owner hereby ratifies and confirms each and every representation
made and set forth by Owner in its application dated November 29 ,
1985 , and all written submittals and representations made in con-
nection therewith to the Planning and Zoning Commission and City
Council , which application and representations shall be deemed to
be a part of this agreement and to be incorporated herein by this
reference.
13. Permanent Care and Maintenance of Landscaping. Owner
agrees that it shall be the perpetual responsibility of the Owner
or Owners from time to time of the Project to design, maintain ,
care for , and replace when necessary , trees , shrubs , plants , and
other landscaping features which may be planted or otherwise
incorporated in the Project pursuant to the landscape plan annexed
hereto .
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Upon the receipt of such petition . the City Council
shall promptly schedule a hearing to consider the matters set
forth in the cease and desist order and in the petition . The
hearing shall be convened and conducted pursuant to the procedures
normally established by the City Council for other hearings. If
the City Council determines by a preponderance of the evidence
that a non- compliance exists which has not been remedies , it may
issue such orders as may be appropriate ; provided , however , no
order terminating any approval granted herein shall be issued
without a finding of the City Council that substantial evidence
warrants such action in affording the Owner a reasonable time to
remedy such non- compl iance. A final determination of non- compl i-
ance which has not been remedied or for which no variance has been
granted may , at the option of the City Council , and upon written
notice to the Owner , terminate any of the approvals contained
herein which are reasoanbly related to the requirements with which
Owner has failed to comply. Alternatively, the City Council may
grant such variances , extensions of time or amendments to this
agreement as it may deed appropriate under the circumstances . In
addition to the foregoing , the Owner or its successors or assigns
may, on its own initiative, petition the City Council for a vari-
ance , an amendment to this attended agreement or an extension of
one or more of the time periods required for performance under the
construction schedules or otherwise. The City Council may grant
such variances , amendments to this agreement , or extensions of
time as it may deer appropriate under the circumstances. The par-
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. i ;'
ties expressly acknowledge and agree that the City Council shall
not unreasonably refuse to extend the time periods for performance
indicated in the construction schedules if Owner demonstrates by a
preponderance of the evidence that the reasons for the delay( s)
which necessitate said extension( s) are beyond the control of the
Owner , despite good faith efforts on its part to perform in a
timely manner . With respect to the construction schedule , the
Owner has made various assumptions , including the following :
(1 ) Negotiation , arrangement and completion of the pre-
existing activity by Owner , including construction borrowing , bid-
ding , contractor selection and contractor mobilization prior to
the projected starting date of no later than May 1, 1987 ;
(2 ) Ratification of the estimated construction and
development schedule by the selected lender and contractor ;
(3 ) Prompt availability of the required labor forces
and construction materials at all necessary phases throughout the
construction ;
(4 ) No interruption in constr uction operations through
the winter months during the actual construction period by acts of
God , or other matters beyond the control of Owner .
16. Notice. Notice is to be given to the parties to this
agreement shall be deemed given if personally delivered or
deposited in the United States Mail to the parties by registered
or certified mail at the addresses indicated below, or at such
other addresses as may be substituted by written notice by the
parties or their successors or assigns :
21
g �K .....�J
City of Aspen : Owner :
City Manager Hotel Jerome Limited Partner-
130 South Galena Street ship
Aspen, Colorado 81611 c/o Marketing Corp . of America
285 Riverside Avenue
Westport, Connecticut 06880
Copies to:
Levitt , Rockwood & Sanders
Attorneys at Law
33 Riverside Avenue
Westoort , Connecticut 06880
1 7. B inding_C lause. The provisions hereof shall run with
and constitute a burden upon the title to the subject property , it
shall be binding upon and shall inure to the benefit of the Owner
and the City and their respective heirs , personal representatives ,
successors and assigns.
18. Applicable_Law. This agreement shall be subject to and
construed in accordance with the laws of the State of Colorado and
the Municipal Code of the City of Aspen .
19. Severbility. If any of the provisions of this agreement
or any paragraph , sentence , clause , phrase , word or section or the
application thereof in any circumstances is invalidated , such
invalidity shall not affect the validity of any such provision ,
paragraph , sentence , clause , phrase , word or section under any
other circunstances shall not be affected thereby.
20. Incorporation of Recitals and Written Submittals. The
City and Owner stipulate and agree that the "recitals" preceding
this agreement , and all of the written submittals ( as amended and
presently effective) made by Owner to City throughout the course
22
518 ,
of the approval process , shall be deemed to be a part of this
agreement and to be incorporated herein by this reference .
21 . Entire Agreement; Amendment. This agreement contains
the entire understanding and agreement between the parties herein
with respect to the transactions contemplated hereunder and may he
altered or amended from time to time only by written instrument
executed by each of the parties hereto .
22. Acceptance_of Plat. Upon execution of this amended
agreement by all parties hereto , the City agrees to approve and
execute the amended plat , and to accept the same for recordation
in the office of the Pit kin County Clerk and Recorder , upon pay-
ment of the recordation fee and cost to the City by Owner.
IN WITNESS WHEREOF , the parties hereunto set their hands and
seals the day and year first above written .
CITY OF ASPEN, COLORADO
A Muni ciip/ Corporation
By 07Zr
William L. Stirli • , Mayor
ATTEST:
Kathryn S. Koch; City Clerk
APPROVED AS TO FORM :
Paul J. Taddune , City Attorney
23
0-it 51q
OWNERS:
HOTEL JEROME LIM i
I ED PARTNE • : HIP,
A Connecticut Lim • Party/ ship
if
,z-
Byi. ' V/ / /
c- ),-,
r / ,
MARKETING CORPORATIX • i! ERI /
By A Alt
_ ‘? _.e.- _--)1
Ger ald A. Sm ith
STATE OF COLORADO )
) ss .
County of Pitkin )
The foregoing instrument was acknowledged before me this 31__
day of __ ,_,„ .,,,L__ __ , 1986, by William L. Stirling as
Mayor and Kathryn S. Koch as City Clerk of the City of Aspen ,
Col9r ado .
#WITNESS MY HAND AND OFFICIAL SEAL.
Oti
' -
-lit.my commission expires: , ,c • ,,,,,,,
',\). •• Notary Public
,
4 -- Address
S TATE OF CONNECTICUT
)
) ss .
County of )
74--
The foregoing instrument was acknowledged before me this —
day of 77C1c/i / ? 1986 , by C ..-/2,112,--- 29 _Cilo,„7:552:
as Ce,_,4/&?..i z. _/7/72/.2_72kopf Ho tel Jerome Lim ited Par tneship.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires : _Ity_cammissinnixims main, loaf -
..........
..... ■ .7_te sc,SILL_ 2-,)
A ,
........ ..9, No ary Public
ES
Ss. vAOTA R y. c), Address
• r ,
r
, .. 24
0
4,*F rre
cA 4, qAc
STATE OF C ONNEC TIC UT )
ss .
County of Po //it-i:L-0 )
The foregoing instrument was acknowledged before me this
it/- r4
day of � ? C��c / 1986 , by _��zt��-lam J���ir�_i
as S_e_a_ _L__ LLC y-'n -ya o* Marketing Corporation of America .
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires : My Commission Expires Mar. 31, 1991
No to ynPublic
o g b ii i<.:' 'iLCCQ 1;1 t__Z: 2,:_511'i'-<1 (1`_1 _
Address i
3C
gSO
1:-:,.
r q� U .•tom
^�� B 1.r ',.1 47:
9.�
25
cJ� tfl
EXHIBIT " B"
The following is a breakdown of estimated costs for construction
of improvements on the City right- of-way around the Hotel Jerome.
The figures are 1986 dollars .
1. S idewalksl_C urb_and_G utter
New walks
Bleeker Street 6 ' x 300 ' @ 3 . 75/s .f . _ $ 6, 750
Monarch Street 6 ' x 120 ' @ 3. 75/s .f_ . = 2, 700
Damaged sidewalk
Say 20 ' x 8 ' @ 3 . 75 = 600
New curbs
Bl eeker Street 30 l .f . @ 11 . 00/l .f_ . = 330
Damaged curb
Say 40 l .f . @ 1 1 . 00/l .f . _ 440
Total sidewalk , curb and gutter = $ 1 0, 820
(Exhibit " B" - Page 1 of 3 )
COST ESTIMATE
WATER MAIN EXTENSION TO SERVE
JEROME HOTEL EXPANSION
1. Tie-in at Monarch and Bleeker Streets,
12"x8" tapping sleeve, valve & box $ 2,000.00
2. 350 L.F. Cl . 52 8" DIP @ $28.00 L.F 9,800.00
3. 40 L.F CL 52 6" DIP @ $24 L.F. 960.00
4. 2 - 8"x6" MJ x Flg tees with
kickblock @ $325 650.00
5. 2 - 6" MJ x Flg gate valves & box @ $425 850.00
6. 20 L.F 3/4" high strength tie-rods @ $6.00 L.F. 120.00
7. 1 - 6" fire hydrant, with kickblock 1 ,200.00
8. 1 - 8" MJ x 6" PE reducer 200.00
9. Tie-in at Mill and Bleeker Streets
6"x6" tapping sleeve, valve & box 1,800.00
10. 700 tons Class 6 base course @ $10.00 Ton 7,000.00
Sub-Total $24 ,580.00
11. Contingency fees 20% 4,916.00
TOTAL ESTIMATE COST $29,496.00
(Exhibit "B" - Page 2 of 3 )
pi„i{ 3 'S r iuF�i%48
• 0
design workshop, Inc.
710 e. durant
THE HOTEL JEROME aspen, Colorado 81611
303/9254354
SITE DEVELOPMENT AND BUDGET ESTIMATE
July 3 , 1986
Design Workshop, Inc.
ITEM UNIT QUANTITY COST/UNIT TOTAL
This cost estimate is for
the R.O.W. areas only
Landscaping
import & spread topsoil cy 109 $ 18.00 $ 1, 962.00
fine grading sf 3,930 0.12 472.00
sod sf 4,713 0.30 1,414 . 00
mulch cy 12 30.00 360.00
Sub-total $ 4, 208.00
Plant Materials
ash ea 13 $ 750.00 $ 9 ,750. 00
ground covers ea 600 6.00 3, 600 . 00
shrubs ea 48 30.00 1, 440 .00
Sub-total $14,790.00
Irrigation
planting beds sf 1, 083 $ 2.00 $ 2, 166 . 00
general sf 3 ,930 0.40 1, 572 .00
Sub-total $ 3 ,738. 00
GRAND TOTAL $22,736 . 00
(Exhibit " B" - Page 3 of 3 )
community development land planning landscape architecture
Mr0YY444 Dig. 0 7 5 0
250033
•
PLANNED UNIT DEVELOPMENT AGREEMENT LC .ETTABANNER
PITiKIFI CTY. RECORDER
HOTEL JEROME - RENOVATION AND ADDITION
HAY f!) 2 03 Pii `83
THIS AGREEMENT, made and entered into this v U day of
April, 1983, by and between the CITY OF ASPEN, COLORADO, a munici-
pal corporation and home-rule city (hereinafter referred to as
"City" ) , and JOHN F. GILMORE (hereinafter referred to as "Owner" ) ,
W I T N E S S E T H:
WHEREAS, Owner has submitted to the City for approval, execu-
tion and recording a Final Planned Unit Development (P.U.D. ) Plat
(hereinafter referred to as the "Plat" ) pertaining to the develop-
ment of a project known as the "Hotel Jerome - Renovation and
Addition" (hereinafter referred to as the "Project" ) on a parcel
of real property more particularly described as follows :
Lots A, B, C, D, E, F, G, H, I, 0, P,
Q, R, S and the East 20 feet of Lot N ,
Block 79, together with the East 170. 78
feet of the vacated alley in said Block 79,
City and Townsite of Aspen, County of Pitkin ,
State of Colorado; and
WHEREAS , the P.U.D. application was filed in conjunction with
an application for rezoning of a portion of the above-described
real property and applications for Growth Management Quota System
( "GMP" ) exemptions ; and
uupc444 PAGE 0 751
WHEREAS, the subject property is located within an area of
the City zoned CC-Commercial Core (by virtue of the above-refer-
enced rezoning ) ; and
WHEREAS, the City has fully considered said Plat , the pro-
posed development and improvement of the land therein, and the
burdens to be imposed upon other adjoining or neighboring proper-
ties and the downtown area in general by reason of the proposed
development and improvement of land included in the Plat ; and
• WHEREAS, the City, in considering the proposed development
site and proposed improvements , has found and hereby does find the
following : the area of the proposed P.U.D. is substantially
covered by a deteriorated and deteriorating building of historic
significance; the development area has a faulty lot layout in
relation to adequacy, accessibility and usefulness ; the develop-
ment area contains potentially unsafe conditions ; the development
aret has a site and improvements subject to further deterioration
unless the planned development is carried out ; and the development
area contains conditions that potentially endanger life and pro-
perty by fire and other causes ; and
WHEREAS , the City also has found and hereby does find that
the present condition of the P.U.D. area substantially impairs the
sound growth and future potential economic health of the munici-
pality and is a potential menace to the public health, safety and
welfare unless the planned development is carried out ; and
2
V vK444 PACE 0 752
WHEREAS, the City, in considering the proposed development
site and proposed improvements, has found and hereby does find the
following : that the area of the proposed P.U.D. has -a predomi-
nance of buildings and improvements that are dilapidated, deteri-
orated and deteriorating, aging and obsolescent ; the area has con-
ditions that potentially endanger life or property by fire and
other causes and is presently, on the whole, potentially detri-
mental to public health, safety and welfare unless the planned
development is carried out; and
WHEREAS , the proposed development will eliminate approxi-
mately thirty (30 ) parking spaces from the parking lot behind the
Hotel Jerome and from parking spaces along Sleeker and Main
Streets and the development of approximately 75 ,000 square feet of
new commercial space and renovation of existing under-utilized
commercial space will generate the need for additional parking and
other municipal improvements in the location and vicinity of the
development and elsewhere in the downtown area; and
WHEREAS, the downtown Aspen area is presently in need of
parking and other physical improvements and the proposed develop-
ment will add significantly and impermissibly to these needs if
the development does not support such municipal improvements ; and
WHEREAS, the development ( including the development of a
contemplated 400-vehicle municipal parking structure and related
necessary public improvements) is necessary to prevent the urban
blight, potential slum conditions and associated public health,
3
13Uur444 PAGE 0 ")
welfare and safety problems as above-described, and , therefore ,
the City finds that it is in the public interest to approve the•
proposed development and its associated municipal improvements ;
and
WHEREAS , the Owner stipulates and agrees to the foregoing
findings of the City and acknowledges that the proposed develop-
ment, the related municipal improvements and the potential blight
and slum conditions are inextricably interrelated ; and
WHEREAS , the City is willing to approve, execute and accept
for recordation said Plat upon the agreement of Owner to the mat-
ters hereinafter described, and subject to all the requirements ,
terms and conditions of the City of Aspen Subdivision and P.U.D.
Regulations now in effect and such other laws , rules and regula-
tions as are or may become applicable ; and
WHEREAS, the City has imposed conditions and requirements in
connection with its approval , execution and acceptance for record-
ation of the Plat, and such matters are necessary to protect , pro-
mote and enhance the public health, safety and welfare ; and
WHEREAS , under the authority of Section 20-16 (c) and Section
24-8. 1 et seq. of the Aspen Municipal Code, the City is entitled
to assurance that the matters hereinafter agreed to will be faith-
fully performed by Owner ; and
WHEREAS, Owner is willing to enter into such agreement (S)
with, and to provide such assurance(s) to, the City.
4
btiCc444 earE 0 754
NOW, THEREFORE, in consideration of the premises , the mutual
covenants herein contained, and the approval, execution and accep-
tance of the Plat for recordation by the City, it is agreed as
follows:
1 . Sidewalks, Curb and Gutter. Prior to the issuance of a
Certificate of Occupancy for the Project, Owner shall construct
new sidewalks along the entire Project frontages on Main, Monarch
and Bleeker Streets ( 8-foot minimum width on Main Street , 6-foot
minimum width on Monarch and Sleeker Streets ) , together with curb
and gutter, all as reasonably determined by the City Engineer, in
accordance with the Landscape Plan submitted herewith , the appli-
cable provisions of Chapters 19 and 20 of the Aspen Municipal
Code, as amended, and accepted engineering standards and prac-
tices . Pursuant to those obligations, Owner shall repair or
replace any existing (or newly installed) sidewalks , curb or gut-
ter Ehat may be damaged during construction. The current esti-
mated schedule and cost of such improvements is contained in Exhi-
bit "A" , attached hereto and incorporated herein by this refer-
ence. Such cost estimate shall be updated by the City Engineer
when Owner actually applies for a Building Permit for the Project
and Exhibit "A" shall be amended accordingly at that time.
2. Other Physical Improvements. Prior to the issuance of a
Certificate of Occupancy for the Project , Owner shall provide and
install such water lines and fire hydrants, sanitary sewer lines,
storm drainage improvements and storm sewers , and such other phy-
5
Mil tin 444 PAEF. 0
755
sical improvements , as may be reasonably required pursuant to Sec-
tion 20-16 (a) of the Municipal Code, in connection with the Pro-
ject and according to normal City specifications , the schedule and
cost of which include, without limitation, those contained in
Exhibit "A" . Such cost estimate shall be updated by the City
Engineer when Owner actually applies for a Building Permit for the
Project and Exhibit "A" shall be •amended accordingly at that time.
The current estimated cost of such improvements does not
include sewer and water taps, plant investment fees and related
fees , which will be calculated and paid prior to issuance of a
Building Permit according to the then-standard practices and
charges of the sewer district and water department.
3. Landscaping Improvements. In accordance with Section
24-8. 16 of the Municipal Code, all required landscaping shall sub-
stantially conform to the "Landscape Plan" annexed to the Plat and
incorporated herein by reference, which shows the extent and loca-
tion of all plant materials and other landscape features , flower
and shrub bed definition, proposed plant material at mature sizes
in appropriate relation to scale, species and size of existing
plant material , proposed treatment of all ground surfaces (e.g. ,
paving, turf, gravel , etc. ) , location of water outlets , and a
plant material schedule with common and botanical names, sizes and
quantities . Landscaping will be completed in a logical phasing
sequence commensurate with the phasing of the improvements contem-
plated in the Construction Schedule, but in no event later than
6
20ux444 PAGE 0 756
one ( 1 ) year after the date of the Certificate of Occupancy for
the Project. The current estimated cost of such landscaping
improvements is agreed by the City Engineer to be $ 10,000. 00.
Such cost estimate shall be updated by the City Engineer when
Owner actually applies for a Building Permit for the Project and
Exhibit "A" shall be amended accordingly at that time. It is the
mutual understanding of the parties that a Certificate of Occu-
pancy may issue for the Project even though the landscaping
improvements have not yet been completed, so long as the portion
of the guaranty provided for in Paragraph 5 hereof which covers
the estimated cost of such unfinished landscaping remains avail-
able pursuant to the terms of said Paragraph 5.
4. Construction Schedule. Owner represents to City that an
accurate construction schedule cannot be submitted at this time.
Owner anticipates that construction of the Project will commence
no later than August of 1985 and be completed no later than Decem-
ber of 1986. Prior to the issuance of a Building Permit for the
Project and as a condition precedent thereto, Owner agrees to pro-
vide the City Engineering Department with a detailed construction
schedule, to the satisfaction of the City Engineer and Chief
Building Official , which shall particularly address how construc-
tion phasing and other techniques will best accommodate under the
circumstances (a) barricading and provision of pedestrian protec-
tion, (b) excavation access and large truck traffic and staging
areas, (c) delivery and storage of major materials , (d) construc-
7
im444 PRE a 757
tion equipment access and storage, and (e) contractor vehicle
parking. Such construction schedule shall be verified by the
signatures of the City Engineer and the Chief Building Official
and recorded as a supplementary exhibit hereto. Amendments to the
construction schedule, if any, shall be processed in the Project
Review process established in Paragraph 10 hereof, verified by
signatures of the City Engineer and Chief Building Official , and
recorded as supplementary exhibits hereto.
5. Financial Assurances . In order to secure the perfor-
mance of the construction and installation of the improvements
described in Paragraph 1 , 2 and 3 above, and to guarantee one hun-
dred percent ( 100%) of the current estimated cost of such improve-
ments agreed by the City Engineer to be $45,058 . 00 (as such amount
may be updated from time to time as herein provided) , Owner shall
guarantee, by sight draft or letter of commitment or credit from a
financially responsible lender (either or both to be irrevocable
until such construction is completed) , that funds in the amount of
such estimated cost are held by it for the account of Owner for
the construction and installation of the above-described improve-
ments. Said guaranty shall be delivered to the City prior to the
issuance to Owner of a building permit for the Project , shall be
in a form acceptable to the City Attorney and the City Manager,
and shall give the City the unconditional right, upon default by
the Owner, to withdraw funds upon demand to partially or fully
complete and/or pay for any of such improvements or pay any out-
8
toam444 fru 758
standing bills for work done thereon by any party, with any excess
guaranty funds applicable to additional administrative or legal
costs associated with any such default and the repair of' any
deterioration in improvements already constructed. As portions of
the required improvements are completed, the City Engineer shall
inspect them, and upon approval and written acceptance, he shall
authorize the release from the guaranty delivered by Owner of the
agreed estimated cost for that portion of the improvements except
that ten percent ( 10% ) of the estimated cost shall be withheld
until all proposed improvements are completed and approved by the
City Engineer. Provided, that the withheld ten percent ( 10% )
which relates to the improvements described in Paragraphs 1 and 2
above shall be released by City upon completion and approval by
the City Engineer of all such Paragraph 1 and 2 improvements and
regardless of the stage of completion of landscape improvements
described in Paragraph 3. above.
The Owner also agrees to deliver to the City, upon demand
therefor by the City Engineer, a maintenance bond or other suit-
able guarantee for the repair or replacement of any existing muni-
cipal improvements damaged during construction of new improve-
ments.
Furthermore, Owner hereby agrees to and does hereby warranty
all such improvements to accepted standards of good workmanship
for a period of one ( 1 ) year from and after acceptance thereof in
writing by the City. In addition to this warranty, the Owner
9
14111011,41 PACE 0 759
shall obtain from his contractors customary warranties of good
workmanship with the City as beneficiary, with respect to all
improvements required by Paragraphs 1 , 2 and 3.
It is the express understanding of the parties that the pro-
cedure set forth in Paragraph 13 of this Agreement regarding non-
compliance shall not be required with respect to the enforcement
and implementation of the financial assurances set forth herein
and required by Section 20-16 ( c) of the Municipal Code.
6. Employee Housing. As an inducement to the City to
approve the P.U.D. , Owner has agreed to and does hereby acknow-
ledge his obligation to provide nineteen ( 19) "employee housing"
bedrooms as described herein and defined by the Code and regula-
tions of the City of Aspen or its designee, in connection with the
Hotel Project. Prior to the issuance of a Certificate of Occu-
pancy for the Project , and as a condition precedent thereto, Owner
agrees to and shall provide for use by Hotel employees a minimum
of fifteen ( 15) off-site employee bedrooms ,. deed restricted to
City employee-housing rental and sale price, qualifications and
occupancy guidelines in effect at the time such bedrooms are so
provided, which bedrooms shall be in income categories , sizes ,
configurations ( including facilities and amenities ) and loca-
tion( s) as may be acceptable to the City (or its designee, which
may be the Aspen/Pitkin Housing Authority) , by constructing new
deed restricted units or by purchasing existing free market units
and converting them to deed restricted "employee housing" status .
10
1300%444 PAGE 0 7 6 0
Provided, that the Owner shall have the right in future to substi-
tute other off-site employee bedrooms for some or all of the fif-
teen ( 15) off-site bedrooms initially provided as above required ,
so long as ( i) the location, size and configuration of such sub-
stitute bedrooms is acceptable to the City or its designee , ( ii ) ,
the minimum number of acceptable employee bedrooms required by
this Paragraph 6 remains available at all times , and (iii ) the
same deed restrictions are imposed upon the substitute units prior
to occupancy of the substitute units . Upon the completion of such
substitution as above required, the City shall release the deed
restrictions upon those off-site bedrooms which have been replaced
with substitute bedrooms .
In addition to the fifteen ( 15) off-site employee bedrooms ,
Owner shall provide, prior to the issuance of a Certificate of
Occupancy for the Project and as a condition precedent hereto,
four (4 ) covenant restricted on-site employee bedrooms within the
•
Project itself, each of which bedrooms shall be at least 180
square feet in size and shall be used solely by Hotel employees,
and shall deliver to the City an appropriate written covenant
covering such bedrooms in a form approved by the City Attorney and
acceptable for recording. Should the Owner secure more than fif-
teen ( 15) off-site employee bedrooms, Owner 's on-site employee
bedroom requirement shall be reduced exactly by the number of off-
site units in excess of fifteen ( 15 ) .
•
11
sauc 444 FACE 0
761
Should the Owner, at the time of the Certificate of Occupancy
for the Project, not have provided all of the required 15 off-site
employee housing bedrooms , he shall , prior to the issuance of the
Certificate of Occupancy and as a condition precedent thereto,
covenant-restrict that number of bedrooms within the Project
necessary to cover any shortfall in the off-site housing require-
ments , which temporary restricted bedrooms must meet the same City
employee housing guidelines as Owner's off-site housing would have
been required to meet under the terms hereof, and which temporary
restricted bedrooms shall thereafter be released from said cove-
nants when Owner does provide the required number of off-site
employee bedrooms in the manner above required.
The deed restriction and covenant restriction and release
forms shall be approved as to form by the City Attorney prior to
recordation.
7. Off-site Parking. A condition of the approvals granted
herein and herewith is the requirement that the Owner provide 60
off-site parking spaces in connection with the Project. Thus , as
a condition of the approvals granted herein and herewith, Owner
agrees to provide 60 off-site parking spaces in connection with
the Project in the manner hereinafter described. Owner agrees to
participate with the City in the financing , design, construction,
operation and maintenance ( including necessary capital expendi-
tures) of a 400-vehicle parking structure on the Rio Grande pro-
perty, to the extent of 60 spaces for Hotel guests and employees.
•
12
a Dux 444 PACE 0 7 62
At such time as the City undertakes the construction of this
structure, Owner shall and hereby agrees to participate propor-
tionately (based on the need for 60 spaces ) in the financing,
design, construction, operation and maintenance ( including neces-
sary capital expenditures) of the parking garage aspect thereof ,
such financial participation to be in the form described below.
(A) Owner' s proportionate share of the cost of constructing
the parking structure shall be determined by multiplying a frac-
tion, the numerator of which is 60 and the denominator of which is
the total number of parking spaces to be constructed, times the
portion of the total construction cost ( ( including financing costs
(including capitalized interest on bonds , reserve funds and bond
issuance costs) , design, pre-construction and construction costs ) )
which is directly related to the parking garage aspect of such
structure. Owner shall and hereby agrees to finance and pay for
such share of the construction cost and to evidence and secure
such obligation in the following manner:
(a) No later than sixty ( 60) days following the issu-
ance of a Building Permit for construction of the Hotel Pro-
ject which is the subject of this Agreement, Owner shall
deliver to the City in the form of cash or certified funds
the sum of One Hundred Thousand Dollars ($ 100 ,000.00 ) as a
down payment on such share. If no Building Permit for a
parking garage has been issued prior to the date of this
downpayment , the City shall promptly escrow such funds in an
interest bearing account with all interest earned thereon to .
accrue to the credit of owner and be applied to "the balance
of Owner's share" in calculating the xxxxxxxxxxxxxxxxxxxxxxxxxxxx
13
nuurc444 PACE p 76 9
original principal amount of the below-described Promissory
Note until the date of issuance of a Building Permit for the
parking structure, on which date this escrow shall be termi-
nated and all funds remaining therein shall be delivered to
the City.
Further in consideration of Owner' s agreement here-
in to participate (and Owner's actual participation) in the
cost of the financing, design, construction , operation and
maintenance (including necessary capital expenditures) of a
municipal parking structure, City agrees that if a Certifi-
cate of Occupancy is issued for the Hotel Project before a
Certificate of Occupancy is issued for the parking structure,
the City shall provide interim parking in the following man-
ner:
(i) The City shall in the interim, if any,
between the occupancy of the hotel and the occupancy of
the parking garage provide for Owner' s use and operation
fifteen ( 15) designated parking spaces at the existing
Rio Grande lot and forty-five (45 ) unassigned spaces
at the existing Golf Course lot. The right to any such
spaces shall expire upon the issuance of a Certificate
of Occupancy for the above-referenced parking garage.
The right to any spaces in the Rio Grande lot after the
issuance of a building permit for the parking garage
shall be subject to availability, which may be limited
•
14
000K444 PAGE 0 7 6 4
by construction of the parking garage, and City shall
make up at the Golf Course lot any such spaces which are
lost from the Rio Grande lot . During such interim
period, Owner shall be responsible for maintaining ade-
quate liability insurance covering all such spaces and
for the operation of all such spaces and for the storage
and retrieval of the Golf Course lot vehicles and/or
passengers and hotel guests and for the supervision of
Hotel vehicles in the Rio Grande lot by whatever admin-
istrative means (e.g. shuttle buses, etc. ) Owner deems
appropriate. City shall , however, be responsible for
keeping the necessary portions of both lots clear of
snow. Owner shall and hereby does indemnify City from
and against any and all claims or liabilities for per-
sonal injury or property damage arising out of Owner 's
use of such parking spaces except those claims caused by
City's negligence or intentional acts.
( ii) The rental market value of the sixty (60 )
spaces is stipulated to be $2,812.50 per month (such
value based on present monthly cost for parking space
rental within the City of Aspen at $75. 00 for downtown
spaces and $37. 50 for non downtown spaces) .
(iii ) During any period prior to the issuance of a
Building Permit for the parking structure that the Owner
is using the City-provided parking spaces , the City
15
euux444 pAGE
0 765
shall draw from the escrow account the amount of
$2,812.50 per month in compensation for the allowed use
of the sixty ( 60) spaces.
( iv) From and after the date of issuance of a
Building Permit for the parking structure (and if such
Permit is issued within 2 years of the issuance of a
Certificate of Occupancy for the Hotel as provided in
Paragraph 7 (A) ( e) hereof) , the delivery to the City of
the escrowed downpayment funds and Promissory Note shall
be deemed compensation in full for any further use by
' Owner of the 60 interim parking spaces, and all amounts
previously withdrawn from the escrow shall be credited
back to Owner in determining the "balance of Owner's
share" for purposes of calculating the principal amount
of the Promissory Note described in paragraph 7(A) (b)
below.
(b) The "balance of Owner ' s share" shall be represented
by Owner' s Promissory Note to the City as holder which Note
shall be dated, executed and deposited into escrow with the
City as of the date of execution of this Agreement by all
parties hereto. The Note shall be delivered out of escrow to
the City and become a debt ( i . e. its "effective date" shall
be) on the date of the issuance of a building permit for the
construction of the parking garage or 60 days following the
date of issuance of a Building Permit for the Hotel Project,
whichever date occurs later. The Note shall be in a form
identical to that attached hereto as xxxxxxxxxxxxxxxxxxxxxxxxxxxx
16
aouX 444. raGF o 766
Exhibit "B" and bearing simple interest (which interest rate
may be variable) at the same interest rate(s ) as the City ' s
(or other issuing authority 's) bond issue rate(s) under
Paragraph 8 hereof and reciting an 18% default interest rate ,
and payable in consecutive monthly installments of principal
and interest in such amounts as are necessary to cover
principal of, redemption premiums , if any, and interest on
the City' s (or other issuing authority 's) bond (s) ( including
refunding bond( s ) ,if any) , and other obligations of the
issuer pursuant to the bond ordinance, resolution, or
indenture and over the same period of time as the City ' s (or
other issuing authority's) bond( s) ( including refunding
bond(s ) ) under Paragraph 8 hereof, commencing on the first
day of the calendar month following the month in which the
Note is delivered with all remaining principal and accrued
interest being due and payable with the final monthly
payment . To the extent permitted by the bond issuing
authority and subject to such limitations and requirements as
may be imposed by such authority at the time of the issuance
of the bond(s) ,said Note shall be prepayable in any amount at
any time and from time to time without penalty or notice and
shall be assignable by City to any bond issuing authority.
(c) As security for said Note, Owner hereby covenants
and agrees that from and after the date of delivery to the
City of said Note, and continuing for so long as any portion
of said Note remains unpaid, Owner shall collect as part of
the daily room rental rate for all rental rooms at the Hotel
not deed-restricted to employee housing a "transportation
17
Doup444 FACE 0 7 6 7
charge" in the minimum amount of $5.00 per day on every room
rental, and shall maintain a separate and accurate accounting
of the revenues generated thereby. Owner shall and hereby
assigns and pledges to City such transportation charge
revenues as collateral for Owner' s performance of his Promis-
sory Note obligations and agrees to remit to the City each
month the portion of such transportation charge revenues
necessary to retire that month 's Note installment obligation.
So long as any portion of said Note remains unpaid , Owner
shall maintain a "transportation revenues reserve account" in
a responsible banking institution containing sufficient funds
to pay one ( 1 ) monthly Note installment obligation in
advance , but shall otherwise be free to utilize such other
transportation charge revenues for his own purposes unless
and until such time as City finds it necessary to exercise
its collateral pledge rights in the event of Owner's default
in the performance of his Promissory Note obligations . In
the event Owner shall ever be late in paying a monthly Note
installment obligation to the City, the City shall have the
right to demand that Owner increase the amount held in such
reserve account to cover three (3 ) monthly Note installment
obligations in advance. Owner agrees to comply with such
demand and thereafter to maintain the reserve account at the
three ( 3) month level. City shall have the right to examine
all records necessary to audit the transportation charge
18
BOVK444 PACE 0 7 6 8
accounting and the related reserve account at any reasonable
time or times. The foregoing pledge shall be assignable by
City to any bond issuing authority.
(d) Owner further agrees that the subject Promissory
Note shall contain a provision to the effect that in the
event that controlling interest in the Hotel Project is
transferred from John F. Gilmore to a third person or persons
(by sale, foreclosure, operation of law, or otherwise) , while
said Note remains unpaid, the City shall have the right (but
not the obligation) to declare the entire remaining balance
of said Note immediately due and payable as of the effective
date of such transfer.
(e) Should the City fail to obtain a Building Permit
for the construction of a parking structure within two years
of the issuance of a certificate of occupancy for the Hotel
Project, Owner shall have the right and option to implement
an alternative plan for the provision of the required 60
parking spaces , or to demand that the City negotiate, in good
faith , a long term lease (no less than 15 years) for the 60
parking spots on the Rio Grande and Golf Course Parking Lots .
In this event, any balance in the funds escrowed pursuant to
Paragraph 7 (A) (a) ( iii) (being principal plus accrued inter-
est minus monthly rental payments made) shall be credited to
Owner in any new lease arrangement or refunded to him if an
alternative parking plan is adopted, and in either case the
19
bOVK444 PACE 0 769
escrowed Promissory Note shall be redelivered to and can-
celled by Owner.
(B) In addition, Owner shall be responsible for his propor-
tionate share of the annual costs, expenses, and necessary capital
expenditures of operating, maintaining and repairing the parking
garage aspect of the parking garage structure following its com-
pletion. Owner hereby further assigns and pledges unto City the
"transportation charge" revenues collected from time to time by
Owner pursuant to Paragraph 7 (A) (c ) above as collateral for
Owner' s performance of his obligation to pay a proportionate share
of such annual operational, maintenance and repair costs , expenses
and necessary capital expenditures . The foregoing pledge shall be
assignable by the City to any garage operating authority.
(C) In consideration of the above-described financial parti-
cipation and subsequent operational cost sharing , Owner shall be
entitled to the perpetual use and enjoyment of a defined block of
sixty ( 60) parking spaces in the structure, free of parking fees.
Should the City deem it appropriate to condominiumize the parking
spaces in the parking structure , City shall deed to Owner his 60
spaces together with his proportionate undivided interest in
appurtenant general common elements .
8. Tax Increment Financing and/or Industrial Development
Bond Financing. Owner shall and hereby consents to the City' s (or
20
MIA 444 PAGE 0 770
other governmental or quasi-governmental entity or non-profit
corporation) issuance, if possible, of a "tax increment bond (s) " ,
or other type of bond, in at least the amount of the balance of
Owner's share of the parking structure construction cost
( including design, pre-construction and construction costs and
financing costs such as capitalized interest costs , if any,
reserve funds, and bond issuance costs ) , the proceeds of which
bond(s) may be applied by the City to the construction of the
subject parking structure and for any other lawful improvement
project. Such bond (s) shall bear simple interest at a rate( s) to
be determined by the issuer, shall be retirable over a period of
not more than 25 years (or other lawful term) , and shall be
secured by a pledge by the City (or other issuing authority) of
the increase in real property taxes and/or sales tax assessed to
the Hotel Jerome property which will occur as a normal consequence
of the renovation and expansion thereof contemplated by this
Agreement (or by other lawful security available to the City or
other issuing authority) . However, the bonding itself will cause
no additional taxes or other charges to be imposed upon Owner
other than the above-referenced "balance of Owner's share" , and
the consent of Owner provided for herein shall not be interpreted
as a consent to any form of special assessment district that would
result in an increase in the real property taxes being levied upon
the hotel property. City will , of course, be reimbursed on a
continuing basis for its bond retirement obligations relating to
the Hotel share of the parking structure by the monthly
installment payments being made by Owner under the above-described
Promissory Note.
21
euuK444 PACE o 771
The Owner further agrees that if Owner has in fact decided to
proceed with the development of the Project approved hereunder ,
Owner shall use his best efforts to cooperate with the City (or
other governmental or quasi-governmental entity) in the issuance
and sale of any Industrial Development Bonds in connection with
the financing of the parking structure, so long as Owner 's parti-
cipation, if necessary, in any such industrial development bonding
effort complies with all applicable laws and restrictions .
9. Planter Encroachments . Owner agrees to obtain such
approvals and/or licenses as may be necessary with respect to
planters which encroach into public sidewalks , prior to the issu-
ance of a building permit for such planters .
10. Periodic Project Reviews . Owner agrees that every six
(6) months following the date of final City approval of this Pro-
ject until the construction thereof is complete, he will meet with
the City Planning Office for the purpose of informing the Planning
Office as to his progress in developing the Project pursuant to
the terms and provisions of this Agreement. If the Planning
Office deems it necessary, the Planning Office will report to the
City Planning and Zoning Commission on the outcome of one or more
of these meetings. The Owner and the City recognize that these
meetings are not opportunities for the Owner to avoid complying
with the requirements of this Agreement but are for purposes of
providing progress reports and developing mutually acceptable
22
•
buty444 PACE 0 7 72
solutions to any problems that may be encountered during the con-
struction period.
11 . Permanent Care and Maintenance of Landscaping. Owner
agrees that it shall be the perpetual responsibility of the owner
or owners from time to time of the Hotel Jerome property to main-
tain, care for, and replace when necessary, all trees, shrubs,
plants, and other landscaping features which may be planted in
connection with or which are otherwise incorporated in the Hotel
Jerome Project pursuant to the Landscape Plan submitted to the
City as a part of the Final Plat.
12. Use and Maintenance of Open Space. Owner shall occupy
the Project Open Space (i .e. the exterior patio and pool areas
shown on the Landscape Plan) for such uses as may from time to
time be deemed appropriate by Owner, provided that such occupancy
and uses shall at all times be in compliance with the then-appli-
cable provisions of the Aspen Municipal Code. Owner agrees that
it shall be the perpetual responsibility of the owner or owners
from time to time of the Hotel Jerome property to maintain in a
clean and attractive condition and in a good state of repair all
such Open Space contained within the Project.
13. Non-Compliance and Request for Amendments or Extensions
by Owner. In the event that the City Council determines that the
Owner is not acting in substantial compliance with the terms of
this Agreement, the City Council may issue and serve upon the
Owner a written order specifying the alleged non-compliance and
23
WtK444 PAGE 07 7 3
requiring the Owner to cease and desist from such non-compliance
and rectify the same within such reasonable time as the City Coun-
cil may determine. Within twenty (20 ) days of the receipt of such
order, the Owner may file with the City Council either a notice
advising the City Council that it is in compliance or a written
petition requesting a hearing to determine any one or both of the
following matters:
( a) Whether the alleged non-compliance exists or did
exist, or
(b) Whether a variance, extension of time or amendment
to. this Agreement should be granted with respect to any such
non-compliance which is determined to exist .
Upon the receipt of such petition, the City Council shall
promptly schedule a hearing to consider the matters set forth in
the cease and desist order and in the petition. The hearing shall
be convened and conducted pursuant to the procedures normally
established by the City Council for other hearings. If the City
Council determines by a preponderance of the evidence that a non-
compliance exists which has not been remedied , it may issue such
orders as may be appropriate; provided, however , no order termi-
nating any approval granted herein shall be granted without a
finding of the City Council that substantial evidence warrants
such action and affording the Owner a reasonable time to remedy
such non-compliance. A final determination of non-compliance
which has not been remedied or for which no variance has been
24
bQU 444 PACE 0
granted shall , at the option of the City Council , and upon written
notice to the Owner, terminate any of the approvals contained
herein.
In addition to the foregoing , the Owner or its successors or
assigns may, on its own initiative, petition the City Council for
an amendment to this Agreement or the Plat or to extend any of the
time periods required for performance. With respect to the Con-
struction Schedule, the Owner has made various assumptions , in-
cluding the following :
( 1 ) Final approval of the Plat and related documentation
prior to May 1 , 1983;
(2 ) Negotiation, arrangement and completion of pre-construc-
tion activity by Owner, including construction borrowing , bidding ,
contractor selection and contractor mobilization prior to the pro-
jected starting date of no later than August 31 , 1985;
(3) Ratification of the estimated construction and develop-
ment schedule by the selected lender and contractors .
(4 ) Prompt availability of the required labor forces and
construction materials at all necessary phases throughout the
construction period.
( 5) No interruption in construction operations through the
winter months during the actual construction period by acts of God
or other matters beyond the control of the Owner.
The City Council shall not unreasonably refuse to extend the
time periods for performance indicated in the Construction Sche-
25
130up(444 PAGE a7 75
dule if Owner demonstrates by a preponderance of the evidence that
the reasons for said extension are beyond the control of the
Owner, despite good faith efforts on his part to accomplish the
same.
14. Notice. Notices to be given to the parties to this
Agreement shall be deemed given if personally delivered or if
deposited in the United States Mail to the parties by registered
or certified mail at the addresses indicated below, or at such
other addresses as may be substituted upon written notice by the
parties or their successors or assigns:
City of Aspen: City Manager
130 South Galena Street
Aspen, Colorado 81611
Owner: John F. Gilmore
Hotel Jerome
330 East Main Street
Aspen, Colorado 81611
with a copy to: Holland & Hart
600 East Main Street
Aspen, Colorado 81611
15. Binding Clause. The provisions hereof shall run with
and constitute a burden upon the title to the subject property,
and shall be binding upon and shall inure to the benefit of the
Owner and the City and their respective heirs , personal repre-
sentatives, successors and assigns.
16. Applicable Law. This Agreement shall be subject to and
construed in accordance with the laws of the State of Colorado and
the Municipal Code of the City of Aspen.
26
6Ouh444 PALE 0 776
17. Severability. If any of the provisions of this Agree-
ment or any paragraph, sentence, clause, phrase, word or section
or the application thereof in any circumstances is invalidated ,
such invalidity shall not affect the validity of the remainder of
the Agreement and the validity of any such provision, paragraph ,
sentence, clause, phrase, word or section under any other circum-
stances shall not be affected thereby.
18. Incorporation of Recitals. The City and Owner hereby
stipulate and agree that the Recitals preceding this Agreement are
part of the Agreement and are to be deemed incorporated herein as
though fully set forth.
19. Entire Agreement; Amendment. This Agreement contains
the entire understanding and agreement between the parties herein
with respect to the transactions contemplated hereunder and may be
altered or amended from time to time only by written instrument
executed by each of the parties hereto.
20. Acceptance of Plat. Upon execution of this Agreement by
all parties hereto, the City agrees to approve and execute the
Final Planned Unit Development Plat for the Hotel Jerome-Renova-
tion and Addition, and to accept the same for recordation in the
Recording Office of Pitkin County, Colorado, upon payment of the
recordation fee and costs to the City by Owner.
IN WITNESS WHEREOF, the parties here hereunto set their hands
and seals the day and year first above written.
THE CITY OF ASPEN, COLORADO,
27
•
8JU4c444 Nu X777
A Municipal Corporation
//
By �� rt "` r
H- man Ede , Mayor ".
.J -
ATTEST: `
.• • xti 1:sr •
Kathryn S. och, ty Clerk
APPROVED AS TO FORM: •
Paul J. Tad• une , City Attorney
OWNER: ,......
' C
1a
John Gilmo e
•
STATE OF COLORADO )
ss .
County of Pitkin
The foregoing was acknowledged before me this 02.041L. day of
, 1983, by Herman Edel , as Mayor,
and K thryn S. Koch, as City Clerk, of the City of Aspen , State of
Colorado.
Witness my hand and official seal .
My commission expires:
,voi 3 a�
�Q(��_ C Yom•
Notary Public � '
•S* ' ' r at? 6
Address a./ ,y 1/6Sr
9 +•
28
vo4 tut 1:3 778
44
STATE OF COLORADO )
) ss.
County of Pitkin )
The foregoing was acknowledged before me this 0,26!.4 day of
(51;45ACY , 1983, by John F. Gilmore.
Witness my hand and official seal .
My commission expires: cr12 —. oC- / /fir
40 ,4A02P
totary Public • •
/BO
Address ;••."
29
EXHIBIT "A" 6 @L'f 444 PAGE 0 779
The following is a breakdown of estimated costs for construc-
tion of improvements on the City rights-of-way around the Hotel
Jerome. The figures are 1983 dollars and are generally based on
1982 bids for City work.
1 . Sidewalks, Curb and Gutter
New walks
Main Street 8 ' it 180 ' @ 3. 50/s .f. = $ 5,040
Sleeker Street 6 ' x 300 ' @ 3. 50/s.f. = 6,300
Monarch Street 6 ' x 120 ' @ 3. 50/s .f. = 2,520
Damaged sidewalk
20 ' it 8 ' @ 3. 50/s. f. = 560
New curbs
Main Street 200 1. f. @ 10.25/1. f. = 2,050
Sleeker Street 30 l.f . @ 10. 25/1. f. = 308
Damaged curb
40 l . f. @ 10 . 25/1 . f. = 410
Total sidewalk, curb and gutter = $17, 188
2. Other Physical Improvements
Water System
Compensation to tie in to Monarch St . 12" = $ 2,750
Furnish and install 8" GV & VB 2 ea.
@ 600 = 1 ,200
Furnish and install 8" cl 52 D. I.
pipe 240 l .f . @ 28/1.f . 6,720
8" it 6" tee 1 ea. 325
6" cl 52 D. I . pipe 20 ' @ 24/l. f. = 480
6" GV & VB 1 ea. = 425
6" fire hydrant 1 ea. = 1 ,200
8" plug and kickblock 1 ea. = 125
13,225
Contingency. fees @ 20% 2,645
Total water lines $15,870
Reset property pins 2,000
Total other physical improvements $17, 870
3. Landscaping
The estimated cost of landscaping in the right-of-way is
$10, 000.
CITY OF ASPEN
ENGINEERING DEPARTMENT
By91AA G• — CM /i3
Daniel A. McArthur%
. pp.
EXHIBIT "B" 181)1M444 fAGt (7 0 0
(Page 1 of 5)
PROMISSORY NOTE
$ , 198_
(Principal Amount) (Effective Date)
FOR VALUE RECEIVED, JOHN GILMORE (hereinafter "Maker" )
promises to pay to the order of the CITY OF ASPEN , COLORADO, a
municipal corporation and home-rule city (hereinafter "Payee" ) , at
130 South Galena, Aspen, Colorado 81611 , the principal sum deter-
mined in accordance with the provisions of Paragraph 1 below,
together with simple interest thereon from the effective date
hereof until fully paid at the rate( s) determined in accordance
with the provisions of Paragraph 2 below, such principal and inter-
est to be payable in the manner described in Paragraph 3 below.
1 . This Note evidences Maker ' s obligation to reimburse Payee
for Maker ' s proportionate share of the total construction cost of
the vehicular parking structure being built by Payee on the Rio
Grande property in the City of Aspen, Pitkin County, Colorado. The
principal amount hereof shall be determined by multiplying a
fraction, the numerator of which is 60 and the denominator of which
is the total number of parking spaces being constructed, times the
portion of the total construction cost ( including design, pre-
construction and construction costs , and financing costs including
capitalized interest on bonds, reserve funds, and bond issuance
costs) which is directly related to the parking garage aspect of
such structure, and then subtracting the sum of $100 , 000 . 00 as
•iiQUa444 PAGE 0 781
previously deposited by Maker in escrow with Payee plus all
interest earned on such escrowed amount from the date of its
• deposit with Payee to the effective date of this Note . The said
principal amount hereof shall be calculated by Payee in accordance
with the foregoing definition, and shall be entered by Payee in the
blank provided for such purpose at the top of this Note , at the
time and on the date this Note is delivered out of escrow to Payee
( ie. on the "effective date" of this Note ) .
2. Payee (or an alternate issuing authority) has issued a
tax increment bond( s) or some other type of bond( s) in at least the
principal amount of this Note for purposes of funding Maker ' s pro-
portionate share of the total
p parking structure construction cost
as above defined. The principal amount hereof shall bear simple
interest (which interest may be variable) from the effective date
hereof until fully paid at the same interest rate ( s) as Payee ' s
(or other issuing authority' s) bond issue rate( s) under the above-
mentioned bond( s) .
3. . Principal and interest shall be due and payable in con-
secutive monthly installments in such amounts as are necessary to
cover principal of, redemption premiums, if any, and interest on
the Payee' s (or other issuing authority ' s) bond ( s) ( including
refunding bond( s) , if any) , and other obligations of the issuer
pursuant to the bond ordinance, resolution or indenture, and over
the same period of time as Payee ' s. ( or other issuing authority ' s)
-2-
•
•
•
toc 444 rAcf 0 782
bond(s) (including refunding bond ( s) ) obligation under the
above-mentioned bond( s) . Such monthly installments shall commence
on_ the first day of the calendar month following the effective date
of this Note, with all remaining principal and unpaid accrued
interest being due and payable with the final monthly payment.
4. To the extent permitted by the bond issuing authority and
subject to such limitations and requirements as may be imposed by
such authority at the time of the issuance of the related bonds( s ) ,
Maker shall have the right to make advance, additional or prepay-
ments in any amount at any time and from time to time without
notice or penalty. Such payments shall be applied first to accrued
interest and then to the outstanding principal balance.
5. At the option of Payee, the entire outstanding principal
and interest balance of this Note shall become immediately due and
payable, without notice or demand, upon the transfer by Maker to a
third person or persons (by sale , foreclosure, operation of law, or
otherwise) of a controlling interest in the Hotel Jerome property
situated in the City of Aspen, Pitkin County, Colorado.
6 . In the event Maker defaults in the performance of any of
his obligations hereunder , accrued interest and principal shall ,
from and after the date of such default, bear interest at the rate
of eighteen percent (18% ) per annum until such default is cured by
Maker . In the event that any unpaid balance due under this Note
should be collected by an attorney, whether by court action or
otherwise, Maker hereby agrees to pay reasonable attorneys ' fees
and all other costs of any such collection action.
-3-
. y
•.
Bour;444 rut 0 783
•
7. This Note shall be governed as to validity, interpreta-
tion, construction, effect, and in all other respects by the laws
and decisions of the State of Colorado. Maker understands and
agrees that the courts of the State of Colorado shall have subject
matter jurisdiction to entertain any action brought to enforce or
collect upon this Note, and by execution hereof, Maker voluntarily
submits to personal jurisdiction of the courts of the State of
Colorado, notwithstanding the place of execution hereof , Maker ' s
residence or principal place of business, or the nature or scope of
any activities or events which may have occurred in other states.
Provided, however , such jurisdiction shall not be exclusive and, at
its option, Payee or its assignee may commence such action in any
other state exercising concurrent jurisdiction.
8. This Note shall be assignable by Payee to any bond
issuing authority.
9. The Maker , endorsers , sureties and guarantors of this
note jointly and severally waive presentment for payment, notice of
non-payment, protest and notice of protest.
10 . This Note is secured by that certain collateral assign-
. ment and pledge of "transportation charge revenues" being collected
by Maker from the operation of the Hotel Jerome as set forth in
Paragraph 7 (c) of that certain Planned Unit Development Agreement -
Hotel Jerome - Renovation and Addition dated M�1to1 , 1983 and
recorded in Booktii T at page 150 of the Pitkin County, Colorado
-4-
•
r
•
•
DOWC444 PAU 0 784
real property records, all pertinent provisions of which P .U .D .
Agreement are hereby incorporated herein and made a part hereof by
this reference. Said Book and page refere - -hall be filled in
by Payee at the time this Note is delivefed out o'; °sag, to Payee.
Executed this? day of ' 1 , 19: 3 . 4 II
,
MAKER:
"F. Gilmore
2
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