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HomeMy WebLinkAbout1989-33 Approving Financing for the Purchase of Berry Creek 5th Filing_ s w ORDINANCE No. 33 Series of 1989 AN EMERGENCY ORDINANCE APPROVING FINANCING FOR THE PURCHASE OF BERRY CREEK 5TH FILING; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town of Vail, Eagle County, Colorado (the "Yawn"), is a municipal corporation, a political subdivision of the state, a body corporate and politic, and a home rule town under the laws of the State of Colorado; and WHEREAS, the Town Council of Vail has determined that there is a public need both within and outside the Town for recreational facilities for residents of the Town and public housing facilities for employees of business within the Town; and WHEREAS, the Town is the assignee of a certain option agreement to purchase real property more particularly described in Exhibit A to said option agreement (the "Property"); and WHEREAS, the estimated costs of issuing a tax anticipation note and acquiring the Property is approximately $2,000,000; and WHEREAS, Section 10.2 of its home rule charter and Section 29-15-101, et sea., C.R.S., as amended, provides that the Town may authorize the issuance of its tax anticipation notes; and WHEREAS, in order to acquire the Property far the public purposes of recreation and law cost housing facilities as well as other public purposes and because the taxes received by the Town r r -F will not be sufficient on January 5, 1989, to acquire the Property, it is necessary to issue a tax anticipation note and execute a Deed of Trust securing said Hate, and WHEREAS, the tax anticipation Hate shall be payable from one percent (1~) of the Town's unpledged two percent (2~) sales tax (the "Tax Receipts"} and investments thereon, which funds shall be paid into a special fund to be known as the 1.990 tax anticipation note principal and interest fund (the "1990 TAN Fund"); and WHEREAS, the Town Council has determined and hereby determines that it is in the best interest of the Town and its inhabitants and taxpayers that the Property be acquired by issuing a tax anticipation note; and WHEREAS, the Town's Tax Anticipation Note, Series 1990, in the principal amount of $2,000,400, dated January 5, 1.990 (the "Note") is to be sold to FirstBank of Vail, Vail, Colorado (the "Purchaser") to the best advantage of the Tawn; and WHEREAS, the 't`own Council of the Town-has determined that it is necessary and advisable to authorize the sale and issuance of the Note; THEREFORE, BE IT ORDAINED BY THE TOWN.COUNC7:L OF THE TOWN OF VAIL, COLORADO: Section 1. That the Town hereby sells to the Purchaser the Note for $2,OOO,Q00. Section 2. That for the purpose of providing funds to acquire the Property and to pay issuance expenses, the Town shall -2- •. issue its registered Tax Anticipation Note, Series 1990, in the aggregate principal amount of $2,000,000, dated January 5, 1990, in the denomination of $2,000,000, numbered R-I, payable in lawful money of the United States of America. The Note bears interest in the amount of $14,166.67 per month payable on February 5, 1990, and on the month thereafter until December 5, 1990, with all outstanding principal and remaining interest in the amount of $12,277.78 due in full December 31, 1990. The Note shall be subject to redemption prior to its maturity, in whole, at the option of the Town ("Optional. Redemption") an any interest payment date, for the principal amount of the Nate and accrued interest to the redemption date. Section 3. That notice of every redemption shall be given by the Tawn by sending a copy of such notice by registered, certified, or first-class, postage prepaid mail, not more than 21 days nor less than 14 days prior to the redemption date to the Purchaser. Failure to give such notice by mailing to the Registered Owner of the Note, or any defect therein, shall. not affect the validity of the proceedings far the redemption of the Note. The Note will cease to bear interest after the specified redemption date. Beginning on January 15, 1990, and on the 15th day of every month thereafter, Tax Receipts or other funds in the amount of $166,667, together with the accrued interest to the next interest payment date, are to be deposited in the 1990 TAN Fund, hereinafter established. After the date fixed for such -3- • redemption, the giving of notice and the deposit of funds for redemption shall cause the discontinuation of accrual of interest on the Note. The principal of the Note shall be payable at the Town or its successor, upon surrender of the Nate. Interest shall be payable to the owners of record as of the Record Date by check drawn on the Town and mailed to the Registered Owner at the address as it appears on the Note registry books maintained by the Town. The Record Date is the fifth day of the calendar month next preceding any interest payment date. The net effective interest rate on the Note is 8.50 percent. Section 4. That the Note shall be executed in the name of and on behalf of the Town by the manual or facsimile signature of the Mayor, shall bear the seal ar a facsimile seal of the Town, and shall be attested with the manual or facsimile signature of the Town Clerk thereof. Should any officer whose signature or facsimile signature appears on the Note cease to be such officer before delivery of the Note to the purchaser, such signature or facsimile signature shall nevertheless be valid and sufficient for all purposes. Section 5. That the Note shall be in substantially the following form: -~- (Form of Registered Note) UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF EAGLE TOWN OF VAIL, COLORADO TAX ANTICIPATION NOTE SERIES 1990 Date of Registered Original Number Rate Maturitv Issue R-1 8.50% December 31, 1990 January 5, 1990 REGISTERED OWNER: FirstBank of Vail PRINCIPAL AMOUNT: Two Million Dollars ($2,OOp,000) The Town of Vail, Colorado, in the County of Eagle (the "Town"), pursuant to Section 29--15-101, et sea., C.R.S., as amended, and Section 10.2 of its home rule charter, for value received, hereby acknowledges itself indebted and promises to pay to the Registered Owner specified above, or registered assigns, an the maturity date specified above, unless this Nate shall have been called for prior redemption, upon surrender hereof, the principal sum specified above, and to pay to the Registered Owner hereof, interest at the rate specified above, payable February 5, 1990, and the fifth day of each month thereafter until maturity, or on the first business day thereafter if the payment date falls on a weekend or holiday. Both principal of and interest on this Note are payable at the Town, in lawful money of the United States of America which, at the time of payment, is legal tender for the payment of public or private debts, provided interest may be paid to the owner of record as of the Record Date by check drawn upon the Town and mailed to the Registered Owner at his or her address as it appears an the Note registry books maintained by the Town. The Record Date is the fifth day of the calendar month next preceding any interest payment date. This Note is issued by the Town Council of the Town of Vail, Colorado, far the purpose of providing funds for acquisition of the real property {the "Property"), by virtue of and in full conformity with the Constitution of the State of Colorado, Section 29-15-101, et seq., Colorado Revised Statutes, as amended, and Section 10.2 of its home rule charter; and all other laws of the. State of Colorado thereunto enabling; and it is hereby certified and recited that all requirements of law have _5_ ~ ~ ~ been fully complied. with by the proper officers in issuing this Note. The Note shall be subject to redemption prior to its maturity, in whole, at the option of the Town ("optional Redemption") on any interest payment date, for the principal amount of the Note and accrued interest to the redemption date. It is hereby further certified, recited, and warranted that the total indebtedness of the Town, including that of this Note, does not exceed any constitutional or statutory limitation of the State of Colorado; that the Tawn has established and will maintain sales taxes sufficient to pay the principal of and interest on this Note; and that this Note was duly and lawfully authorized by an ordinance of the Town Council of the Town duly adopted and approved prior to the issuance hereof. Notice of every redemption shall be given by the Town by sending a copy of such notice by registered, certified, or first- class, postage prepaid mail, not more than 21 days nor less than ~.4 days prior to the redemption date to the Registered Owner of the Note which is called for redemption at his or her address as it last appears on the registration books kept by the Town. Failure to give such notice by mailing to the Registered Owner of the Note, or any defect therein, shall not affect the validity of the proceedings for the redemption of the Note. Notice having been given in the manner hereinbefore provided, the Note shall become due and payable on the redemption date so designated; and upon presentation thereof at the Town, the Town will pay the Note. Prior to the date fixed far redemption, funds sufficient to pay the Note and the accrued interest to the redemption date are to be deposited with the Town. After the date fixed for such redemption, the giving of notice, and the deposit of funds for redemption shall cause the discontinuation of accrual of interest on the Note. The person in whose name the Note shall be registered, on the registration books kept by the Town, shall be deemed and regarded as the absolute owner for the purpose of making payment and for all other purposes; and payment of or on account of either principal or interest on the Note shall be made only to, or upon the written order of the Registered Owner ar his legal representative. All such payments shall be valid and effectual to discharge the liability upon the Note to the extent of the sum or sums sa paid. This Note is secured by a first deed of trust on the Property. -fi- IN WITNESS WHEREOF, the Town of Vail, Colorado, has caused this Note to be executed in its name by the manual signature of its Mayor, the seal. of the Town to be affixed hereto, and attested by the manual signature of the Town Clerk. TOWN DF VAIL, COLORADO (S E A L) By: Mayor ATTEST: Town Clerk -7- Section b. That the Note, when executed as provided by law, shall be delivered to the Purchaser and the proceeds derived therefrom shall be used exclusively for the purposes stated herein. Neither the Purchaser of the Note nor the owner of the Nate shall be in any way responsible for the application of the proceeds of said Note by the Town or any of its officers. Section 7. That for the purpose of paying the interest on the Note as the same shall become due, and providing for the payment of principal of the Nate, there has been levied by the Town, the Tax Receipts which shall be sufficient to pay the principal of and interest on the Note, as the same become due and payable, respectively. Said Tax Receipts in the monthly amount of $166.666.67 plus interest, as set out in Section 2 hereof, when collected, shall be held by the Town in a special fund hereby created by the Town and described as the 1990 TAN Fund, but nothing herein contained shall be so construed as to prevent the Town from applying any other funds that may be in the treasury of the Town and available for .that purpose, to the payment of interest or principal, as the same respectively become due. Moneys in the 1990 TAN Fund shall be pledged to and used solely for the purposes as set out above so long as any payment is due on the Nate. The 1994 TAN Fund moneys may be invested in accordance with the laws of Colorado for home rule cities and towns, and earnings from such investments may be transferred to the general fund of the Town. Nothing herein is intended to require that the monies in the 1.990 --8- - r • TAN Fund must be segregated from other funds for investment purposes. Section 8. That notwithstanding the foregoing sales tax levies, the Town Council of the Town covenants and agrees to maintain and enforce its present rates, tolls, and fees, suffic~.ent to pay the principal of and interest on the Note herein authorized. Moneys in the 1990 TAN Fund shall be pledged to and used solely for the purpose of paying principal of and interest on the Note, so long as any payment is due on the Note. Section 9. That the Town aavenants and agrees that it will, if required by law, rebate to the United States of America excess investment earnings as provided in Section 148 (f) of the Internal Revenue Code of 1986, as amended, and regulations to be issued by the Treasury Department. Section 10. That the Town agrees that it will comply with Section 9.11 of its Home Rule Charter and the extent applicable the Colorado Local Government Audit Law, being Section 23-1--601, et sea., Colorado Revised Statutes, as amended. Section 11. That the Town covenants and agrees that it will make no use of the proceeds of the Note authorized herein or any other funds of Vail which might cause such obligations to be arbitrage bonds within the meaning of the Internal Revenue Code of 1986, as amended (the "Code"), and the Regulations proposed and in effect thereunder and under the Internal Revenue Code of 1964, as amended. -9- • Section 12. That Vail covenants and agrees that it will take all actions that may be requires of it (including, without implied limitation, the timely filing of a federal information return with respect to the Note) so that the interest on the note will be and remain excluded from gross income far federal income purposes, and will not take any actions which would adversely affect such exclusion. Section 13, That the Town hereby designates the Note as a "qualified tax-exempt obligation" for purpose of paragraph (3} of Section 265(b} of the Code and covenants that the Note does not constitute a private activity bond as defamed in Section 141 of the Code and that not more than $1.0,000,000 aggregate principal amount of obligations the interest on which is excludable under Section 103 (a) of the Code from gross income for federal income taxes [excluding, however, private activity bonds, as defined in Section 141 of the Code other than qualified 501(c} (3} bonds as defined in Section 145 of the Code), including the Note, have been or shall be issued by the Town, including all subordinate entities of the Town, during the calendar year 1990. Section 14. That the Mayor of the Town of Vail and the Town Clerk shall, and they are hereby authorized and directed to take all necessary or appropriate action toward the execution and delivery of all the documents and such other agreements as may be necessary or desirable to effectuate the provisions of this Ordinance and comply with the requirements of the law including a -10- first deed of trust in a form approved by Bond Counsel and the town attorney securing the payment of the Note. Section 15. That if any portion of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such portion or provision shall not affect any of the remaining provisions of this Ordinance, the intention being that the same are severable. Section 16. That after the Note authorized herein is issued and sold and is outstanding, this Ordinance shall be and remain irrepealable until the Nate and the interest thereon sha11 be fully paid, satisfied, and discharged. Section 17. That prior to the date of the adoption of this Ordinance, the Town has not adapted any ordinance or resolution containing a provision inconsistent with the provisions of this Ordinance. Section 18. By reason of the fact that it is necessary to acquire the property as soon as possible in order to avoid any cost increases in connection with purchasing the Property through condemnation, and take advantage of low interest rates currently existing in the market, it is hereby declared that this Ordinance is immediately necessary for the preservation of the public peace, health, and safety. Wherefore, this Ordinance shall be in full force and effect upon adoption at the special meeting of the Town Council on December 29, 1989, by an affirmative vote of five members of the Town Council. The Town Council hereby exempts _11_ this emergency ordinance from referendum pursuant to Section 5.1(b} of the Town Charter. FINALLY ADOPTED AND APPROVED AS AN EMERGENCY ORDINANCE THIS 29TH DAY OF DECEMBER, 1989. TOWN OF VAIL, COLORADO (S E A L) By: ~ ~~~ ATTEST: Mayor Town Clerk -12- 4 ~ -- ~ 1 I I ~ ~.f?a _ _ +'r.'• ~44~ ~!t -Qd~ATIQM/ ~tLCA1tpI~1G 'i'eia lIT[~EIrIT PL$ASE CULL ~tsiillilA , N1~,LL~Al1B +1? t 30 3) 94 9 -10 ~ 1 ~:. ~.:x*~ ~~ . - ~.. :_. ..r ~ _. .. '" ~'~- -,r ', 1t '? ~ a. ~ . , w}~ ' t.. ~.; . ~ .I ~ ~~~~~' „',y . y- ' : ~. _'r gad; i;S:::'?. _ z- i~ ~ ~,~ g ~ .~ • i . • ~ ~ . E~dllilt A PROPERTY DESCRIP?103~ CONTINUED ORAER NO.s 1733-VC3 southerly right of way lint o! tM interstate ltfghrray TO access to n.3. Highway No. 6l thence t. 73 degrees 27'31" M. and along said southerly right of way line 74.31 leet~ thence s. 77 degrees 39'01" M. sstid along said Southerly right o! way line 16.50 tact to a point oa the Easterly right of way fins at the Denver and Rio Granda Kestern Railrwd right-of-way= thence 8. IS degrees 23'S9" t. and along said Easterly right o! way fins ?99.69 teat to a point on the Last Sina of said Section S} thence l1. 01 degrees 2S'31" E. and along said Bast line 313.72 feet to the point of beginning. 1,.rgal description will change upon receipt of survey showing land to be conveyed. COUNTY OF W1GLd sx~?c or COLOR110G ~ • i :~ ,~.. Ean1n~T ~ PROAERxY DCSCRIPTIOM ORp£R No,s 4733-vC3 PI~RCtL I That part of the aorthweat 1/1 iHhrl/11 and the ?forth 1!2 of the Southwest I N iNl/?Swl/il and that part of the South 1/T o the Southwert 1!4 isl!?Swl/41 all in section 4, Township S south, Range 82 Kest of the Sixth Principal Mieridian lying South of the Southtrly boundary of Interstate Bighway 110. 70 and lying Easterly of the Easterly boundary of t1,y. llighray 110. 6 access road to said 1lighway No. 70, as said roadwayr are described ire Special warranty Dead to the Departinet~t of RighraYa, Stage of Colorado recorded in the Eagle County, Colorado Clerk and Recorder's office an May 14, 1969 in Hook 21S at Fage 183 and ]ping northerly of the Denver and Rio Grande Mestern Railroad Right-of-ray. EXCEP?It1G frog the shove described parcel of lands A. that portion conveyed to Gerald L. Dillon and Ramona C. Dillon ]eased to Skelly Oil Company, a Delaware Corporation in Deed recorded Junt i, 1988 in Doak 485 •t Fage lil as Reception 11a. 381385. !. that portion conveyed to Cdwards Land investors, a Colorado General Partnership in Detd recorded llove~aber S, 1986 in Hook 4SI at Page ?73. as Rectptioia lia. 318011. C. that portion cpnveytd to 40?0 Land Investors, a partnership, in Deed recorded Hove er 5, 1906 in Hook 4SI at Faye 784, a• Reception 110. 3480??. 1}. that portion conveyed to 3ingletrea Golf Club, a Colorado General Partnership, in Deed recorded May !, 1987 in Book 167 at Page T??, as Reception Ito. 358504. E. that portion conveyed to Ray L. Miller and Ruth Miller in Deed recorded July ??, 1956 in Book 148 at Aage 31, PARCEL ? A part of the >rl/?E1l2 of section S, Township S south. Range 8? hest of the 6th P.!'!.. County of 8agle, State of Colorado, More Particularly described as follows: Caa-iaencing at the Northeast Corner of said Section Si thence S. Q1 degrees ?S'31" tl. and along the L-aat line of said Section S, ?025.88 feet to the paint of beginning, said point being an the Continued on next page ~ ~ ~' .. gQ~ OF TZ'~RNEY RNOW,ALL MEN BY THESE PRESENTS that George N. Gillett, Jr. of the County of Eagle, State of Colorado, reposing special trust and confidence in Michael S. Shannon of the County of Eagle, State of Colorado has made, constituted and appointed, and by these presents hereby makes, constitutes, grants and appoints Michael S. Shannon the true and lawful attorney in fact for him with full power of substitution, to act for him and in his name, place and stead, in all matters arising in connection with the purchase of the following described real property to wit: Berry Creek Ranch, Filing No. 5, as more particularly described on Exhibit A attached hereto and by this reference made a part hereof, (the foregoing real property hereinafter referred to as the "Premises") for the sum of $1, 8'7fr,000.00, aubjeat to the terms and conditions set forth in that certain Vacant Land Contract to By and Se].1 Real Estate dated September 5, 1989 between George N. Gillett, Jr. and June Creek Ranch~Company (the "Contract"); and that Michael S. Shannon is specifically authorized to execute, acknowledge and deliver in the name and on behalf of George Gillett, Jr. all documents as Michael S. Shannon may deem necessary or advisable in connection with the purchase of the Premises, including without limitation (a) any extensions and modifications of the Contract, (b) the settlement sheets and other closing documents required for consummation of the transactions contemplated by the Contract, (c) if deemed appropriate by Michael S. Shannon, an assignment of all rights in the Contract and/or the Premises to the Town of Vail or Eagle County, Colorado, subject to such terms and conditions as shall be deemed appropriate by Michael S. Shannon (the "Assignment"), and all related documents required in connection with the Assignment and (d) all documents required in connection with the acquisition of the "Miller Ranch," including without limitation the acquisition of the lien held by June Creek Ranch Company on certain property located in Silt, Colorado as mare particularly described in Exhibit 8 attached hereto and by this reference made a part hereof. And George N. Gillett, Jr. hereby gives and grants to said attorney in fact full power and authority to do and perform every act necessary, requisite or proper to be done in connection with the purchase of the Premises and/or the Assignment as fully as he might ar could do were he personally present, with full power of substitution and revocation, hereby ratifying and confirming all that said attorney shall lawfully do or cause to be done by virtue hereof. ~ '' .~. ~ - ~ • This Power of Attorney shall not be affected by the disability of George N. Gillette Jr. This Power of Attorney and the duties of the attorney in fact hereunder shall be construed in accordance with Colorado Law. This~Power of Attorney shah. expire January 31, 1990. IN WITNESS REOF, t and seal this ~9~day of unders gned has hereunto set his hand ~ r , 1989. ~_ EORC~ N. C~ZLLETT, JR. STATE OF COLORADO } } SS . COUNTY OF EAGLE } The foregoing Power of Att rney was subscribed, sworn and acknowledged before me this ~~~ day of December, 3989 by George N. Gillett. Witness my hand and official seal. My commission expires:~q.Z . ~~ Nota Public EXH 11 I T A ORDER NO.r 1733wVC3 AROPEATY DBSCRIPTIOM PI~RCEL 1 wrrrww r• That part of the Northwest 1/4 tNwl14! and the North 1/2 of the Southwest 1/4 INi/2Swi/4! and that part of the South 1/~ o the Southwest 1/4 isi!?swi/4! all fn Section 4, Township S South, Rangy 8? West of the Sixth Principal Meridian lying South of the Southerly boundary of Interstate Highway No. 7d and lying Easterly of the ~Sasterly boundary of t1.8. Highway 1Qo. 6 access road to said pighway No. 70, a• said roadways are described in Special Miarranty Deed to the Department of Highways, State of Colorado recorded in the Eagle County. Colorado Clerk and Recorder's Office on May 14, 1969 in Book ?iS at Page 183 and ]ying northerly of the Denver and Rio Grande Western Railroad Right-of-r+ay. ~XC£PTiNG iron the above described garcel of lands A. that portion conveyed to Gerald L. Dillon and Ramona C. Dillon ]eased to Skelly Oil Company, a Delaware Corporation in Deed recorded Juna i, 19$8 in Book 483 at Page idi as Reception No. 383388. B. that portion conveyed to Bdrrards Land Investorn, a Colorado General Partnership in Deed recorded November 3, 1986 in Book iSl at Paga 773, a• Reception loo. 348011. C. that portion conveyed to ~14~Q Land Investors, a partnership, in Deed recorded lvovem er S, 1986 in Book 4S3 at Page 784, a^ Reception po. 3480??. D. that portion conveyed to Sing3etree Golt Club, a Colorado General Partnership, in Deed recorded May a, 1987 in Book 462 at Fags Z77, as Reception No. 358504. E. that portion conveyed to Ray L. Miller and Ruth Miller in Deed recorded July ??, 1956 in Book 348 at Page 33. AARC£L 2 A part of the B1/?B1/x of Section S, Township S South, flange 82 West of the 6th P.M., County of Eagle, State of Colorado, More particularly described as follower Commencing at the Northeast Corner of $aid Section Sj thence 9. 43 degrees 23'31" W. and along the Ea$t line of said section S, 20?5.88 feet to the paint of beginning, said point being on the Continued on next page `' i• ~ ~ • • ~xHiaiY ~ AROA£RTY DESCRIPZI©N CONTINUED ORDER NO.t 1133-VC3 Southerly right of way line of the interstate Highway 70 accers . to U.B. Nighrray No. 6~ thenca B. 73 degrees ?7'31' M. and along raid Saatherly right of Tray lies 74.31 #eeti thence s. 77 degreer 39'01" M. and along slid Sout}~erlY right of way lino 16.50 feet to a point an tl~s Easterly right o! way line of the Denver and Rio Grande Wertern Railroad right-of -way t thence 8'. 15 degreer ??'S9" t. and along. said Earterly right of way line ?99.69 leet to a paint on~the Eart line of raid Sect ior~ S a thence !i. O1 degrees ?5'31" E. and along said Eart line 313.7? #eet to the point of beginning. Legal description will change upon receipt o! survey rhowing land to be conveyed. C4~iNTY OF E1~GLE ST11T6 OP COL4Ra1D0 EXHIBIT B' xowrtiahip b bouth, Range 91 Went of tha 6th P. M. wrrrw rwrrrrrrwrr~rrrr wrw rrarrr rrr•~.w•rrraar ~rrw~wr sect~an 31: Got 4 or the SW~SW~, SE:~NW~ and Lots 2 and 3 Totxnahip 6 South: Range 9Z Weat of the 6th P.M. rr wwwwrrrwwww~rrwra rrrrw wr•wrrrrrrwwwrrwra r..r ~..r Section 35 ~ mss, S~x~c section 36~ SE~NE~, E~SE~, W~SE~t, except that part of the SE~NE~, Section 36, Tocmeh3p 6 South, Range 92 West of the 6th P.M., conveyed out by Doeument No. 30501 raCOrded in Book 64 at Page x.24 s s4~NE9,~, 5~, N3~SW~, S~ST~ and the 9W3~SW~ Township 7 South, Range 91 Weat o! the bth P.M. ~.w.r.rrrrrM7M~.~~.w•+r.ww+~rywr.r .. ..+w r~~+w ~.•~w~wy+~r wr w..r Sartion 6~ tots 4 and 5 Toamahip 7 South, Range 40 West of tha 6tb- P.J~• arrr+.rrrrrrrrrr.r rarrrrrrrrrrrr..rrwrrrrrrrrrwwrrr SeCtiOn 'J1 s lrT~SF.~, $3sNE3~ Section 32 i L~Ei~, SW3~N'W'~, N'~NW~r - NW3,cN~c, I~sw~t 3eetfon 33s $~ Section 34~ 5th Section 29: W~I~, hDf, Ss~ Section 3Qi N~N~c Tor,mship 7 South, Range 92 West of the 6th P.M. rrrrr.rrw•rr rrr..wrrrrrrrwwrrrrrrrrrwrrrrrrr rrrrr~ Section ~.~ $E~3F~ and the N'E*$k~ (collectively compri,ainq th4 SySSk? ~ GoE 1 ~ and that part of the Nt~SE3~ lpinq Ee-st of a line lying live t5) feet easterly of and parallel to the easterZp bank of Fast divide Creek. Section 12 ~ NF~DIEk COUNTY 4F` G~-R~'1~1•D SThTE OF C4LORAD4 • ~ibgelhez with 3 •aoond lsat o! wat~sr alloasd tea floc in• the Ta3.lmadye ~sd Glbeors Aitnh ~ndar fxiority No. 36t ~ ~eeoocsd f4et o! xater allowed to flaw !aa the Gook end Llswsllyn Snlazgr-ment Ditch ttind4r priority No. 7,3d. • C AMENDMENT N0. 1 Td VACANT LAND CONTRACT TO BUY AND SELL REAL ESTATE This Amendment No, 1 to Vacant Land Contract to Buy and Se11 Real Estate, dated as of October 1'3, 1989, is by and between June Greek Ranch Company ("Seller"} and George N. Gillett, Jr. ("Buyer"). RECITALS A. Seller and Buyer are parties to a Vacant Land Contract to Buy and Sell Real Estate, dated September 5, 1989, (the "Contract"} relating to the purchase and sale of certain real property located in Eagle County, Colorado, and related rights and interests, as mare particularly described in the Contract. B. Seller and Buyer desire to amend the Contract in accordance with the terms set forth herein. Unless otherwise indicated, capitalized terms used herein shall have the meanings given those terms in the Contract. NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, Seller and Buyer agree to amend the Contract as follows: AGREEMENT 1. Water Riahts. (a) Exhibit D to the Contract shall be deleted in its entirety and the following substituted therefor: "Exhibit D Water Rights owned by June Creek Ranch Company as of October 13, 1989 and as of the date of Closing 5.27 cfs in the Howard Ditch, priority no. 3$5, with an appropriation date of June 13, 1$99, with an adjudication date of October 3, 1936, out of the Eagle River in Eagle County Colorado." (b) Schedule A to Exhibit C to the Contract shall be amended by deleting the third page of said Schedule A in its entirety and substituting therefor the following: i ~ ~ "Water Rights owned by June Creek Ranch Company as of October 13, 1959 and as of the date of Closing 5.27 cfs in the Howard Ditch, priority no. 385, with an appropriation date of June 13, 1899, with an adjudication date of October 3, 1936, out of the Eagle River in Eagle County Colorado." 2. Effect of Amendment. To the extent that any of the terms or conditions contained in this Amendment No. 1 conflict with any of the terms of the Contract, the terms and provisions of this Amendment No. 1 shall control. Except as set foxth herein the Contract shall remain in full force and effect. This Amendment is governed by and to be construed in accordance with the laws of the State of Colorado. EXECUTED as of the year and date first above written. Seller: JUNE CREE~H COMPANY < i~ By: Buyer: George ~4`. Gillett, Jrl~ JUNCREE~.RCH - 2 - November 16, 1989 7hr printed prrlionr of ibis form apyrased by tht Calonda Rer'I EalattCommlaalonlBC 2ti•2•tlU SII#S -S A lEQlll DISTIII~IENf. g NOT UNDEAS7DOO, LE4Al, TAX OiR O1'IiEi! COIi1iSEL SHOULD !E CONSULTED lEFO11E SIDNINO. VACANT LAND CONTRACT T4 BUY AND SELL REAL ESTATE (Seller's remedy limited to Liquidated Damages) S~tamhar 5 ,ig 39 1. The undersigned agent hereby acknowledges having received from man rn~l . f; i 1 1 at t . J r . the sum of $ri.,,,'~.17~ - ~~ II , in the form of a check to be r~ch~r1 and the I-+rnra~rlc ,to be heldby.gP.llpr lAS ('~P.fIRP.(1 herelnl , broker, in broker's escrow or trustee account, as earnest money and part payment for the following described real estate in the County of ~~~ 1 ~' Colorado, to wit: Berry Creek Ranch, Filing No. ~, as more specifically set forth on Exhibit A attached hereto and made a part hereof together with all easements and rights of way appurtenant thereto, all improvements thereon and all fixtures of a permanent nature currently on the premises except as hereinafter provided, in their present condition, ordinary wear and tear excepted, and hereinafter called the Property, 2. Subject to the provisions of paragraph 17, the undersigned person(s) Geo rae N . G i 1 1 ett . J r . Va~~~r~t~t~e~~~t~s~t+~e~i~r~tr~s~r~a<a~rl~rEii~~), hereinaftercalled Purchaser, hereby agrees to buy the Property, and the undersigned owner(s), hereinafter called Seller, hereby agrees to sell the Property upon the terms and conditions stated herein. 8. The purchase price shall be U.S. $~7~ • a0D • ©0 ,payable as follows: $ ~ • OOU . Ob hereby receipted for; a. $I15,000.00 in immediately available funds to be paid to Seller on or before 5:00 p.m. (P1.D.T.) on September 29, 1939; b. $550,000.00 in immediately available funds at closing of title; c. $1,27b,000.00 by Purchaser's execution and delivery of a promissory note in such amount in substantially the form of Exhibit Q attached hereto and made a part hereof, which promissory note shall be secured by a deed of trust on the Property in substantially the form of Exhibit C attached hereto and made a part hereof. 4. Price to include: Right of First Refusal on the t1i l ler Property evidenced by document recorded Igarch 15, 1979, in Book 282 at Page 9~0, and the following water rights: all water, water rights, ditches and ditch rights owned by Seller and allocated to the Property under the applicable plan o.f augmentation and described in Exhibit D, which shall be conveyed by quit claim deed. •~r-~!" „ .... I . b-- -:• '-e'~ ~ _~ F.:.....' ~ ,, 1'-- -1_~.,_: S:. „ _.. ;. }.?.:_ ? r... k.,,, '_'t_...:...~~_ we. t~.~ :.., r......t.:,:y u...l .1~::6~..' ~..i apply Par such loan, (b) execute all documents and furnish all information and documents required b ender, and (c}pay the customary costa of obtaining such loan. Then if such ]aan is not approved on or e , 19-, or if so approved but is not available at time of closing, this contract sh null and void and all payments and things of value received hereunder shall be returned to Purchaser B. If a note and trust deed ar mortgage is to be sa a ,Purchaser agrees to apply for a loan assumption if required and agrees to pay (1) a loan.transf tt not to exceed $ and (2) an interest rate not to exceed ~_%-pe annum, If the loan to be assumed has provisions for a shared equity or variable interest rates or vaxiabi~payments, this contract is conditioned upon Purchaser reviewing and consenting to such provisio r~he llender's consent to a loan assumption is required, this contract is conditioned upon obtaining such ~~a LB',` ,.1, ., „,.z t_ aL~ a ~~. 1. ~... ~.. 1. ~...i... N. _ ~ .~. ?. If a note Fla to be made payable to Seller as partial or full payment of the purchase price, this contract shall not be assignable by Purchaser without written consent of Seller. 8. Cost of any appraisal for loan purposes to be obtained after khis date shall be paid by Pu release r . ---- _.. , No. $C 26-2-81. ConlraH to Ru~• and Sell Real Estate [~'aeant Landf B rudfor~lf'u1,IlsilinF('n„SH"5\1',+ilh At',~..1.ukeu•~auL('nlurndo R6'!1{-I:14:S1 a:1:;.4H00- I.82 ("Title Commitment") ti. A~~br~,r~~t~ft;,t~e~t~tr~~jeryy/~rfi/ye~~t~~~~e/~~reurrent commitment for title inautance policy in an amswnt equal to the purchase pries, yt~l~tr'~~0~~1r~~tfl~~lrt~tyt~t/~1~1~(~tahed to Purchuer glFll{q~]f4+tjpfgl /~f~/~l~~l~/~!'~~lfll~l~~~lt~//i~l~~~~ Setter mill deliver the title insurance policy to Purchaser after closing and pay the premium thereon. 10. The date of cloning shall be the date for delivery of deed as provided in paragraph ll, The hour and place of closing shall be as designated by mutua 1 ag reemen t 11, 't'itle shall be merchantable in Seller, except as stated in this paragraph and in paragraphs l2 and 13. Subject to payment or tender as above provided and compliance by Purchaser with the other terms and provisions hereof, Seller shall execute and deliver a goad :nd sufficient general warranty deed to Purchaser on January S lp 9~ , or, by mutual agreement, at an earlier date, conveying the Property free and clear of ail taxes, except the general taxes for the year of closing fit4ydk~E~~L tree and clear of all liens for special improvements installed as dthe date of Purchaser's signature hereon, whether assessed or not; free and clear ofall liens and encumbrances except a5 set forth i n the Tit 1 e Commitment subject to a deed of trust in favor of Eagle Associates referred to in Paragraph S of Schedule B-i of the Title Commitment except the following restrictive covenants which do not contain a right of reverter. 85 Set forth i n the Title Commitment and except the following specific recorded andlor apparent easetseats: a5 Set fOr th i n the Tit 1 e Commitment and subject to building and Boning regulation#. 12. Except as stated in paragraph: l2 and 13, if title is not tncrchantable and written notice of defect(al is given by Purchaser or Purchaser's agent to Seller or Seller's agent on or before date of closing, Seller shall u:e reaaanable effort to Correct said defect(s) prior to date of closing. If Seller is enable to correct acid defect(s) on yr before date pf closing, at Seller's Optiun and upon written notice to Purchaser or Purchaser's agent on or before date of closing, the date of closing shall be extended thirty days for the purpose of correcting acid defect(s). Except as stated in paragraph 19, if title is not rendered merchantable as provided in this paragraph 12, at Purchaser's option, this tontract shall be void and of no effect and each party hereto shall be released from ail obligations hereunder and alt payments and things otvalue received hereunder shall 6e returned to Purchaser !~. Any encumbrance required to be paid may be paid at the time of settlement from the proceeds of thin transaction or from any other source. Provided, however, at the option of either party, if the tats! indebtedness secured by liens on the Property exceeds the purchase price, thiseontract shelf be void and ciao effect and each party hereto shall be released from all obligations Hereunder and ail payments and things of value received hereunder shalt be returned to Purchaser. ld. General taxer for the year of closing, based on the most recent levy and the most recent saaeasment, prepaid rents, wafer rents, sewer rents, FHA mortgage insurance premiums and interest on encumbrsncea, if any, and rrp(*a.lSl~tf ah 1 ~ rPn~~ ~ i f env Thal] be apportioned to date of delivery of deed. 15, Possession of the Property shall be delivered to Purchaser on C 1 p5 i ng of tit 1 e subject to the following leases ar tenancies: the stab 1 e 1 ease ~ a copy of which has been furnished to Purchaser, 18. In the event the Property is substantially damaged by fire, flood or ocher casualty between the date of this contract and the date of delivery of deed, Purchaser may elect to terminate this contract; in which case all payments and things of value received hereunder shalt be returned to Purchaser. 17, Time is ottee essence hereof. If any note or check received as earnest money hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed as herein provided, there shall be the following remedies; (a) 1F PURCt;ASER IS IN DEFAULT', then all payments and things of value received hereunder shat) be forfeited by Purchaser and retained on behalf of Seller and both parties shall thereafter be released from ail obligations hereunder. 1t is agreed that such payments and things of value are LIQUIDATED DAMAGES and (except as provided in subparagraph (c)) are the 5ELLIER'S SOLE AND ONLY R1rMEDY for the Purchaser's failure to perform the abligationa at this contract. Seller expressly waives the remedies of specific performance and additional damages. (b) 1F SELLER IS IN DEFAULT,;1) Purchaser may elect to treat Lhis contract as terminated, in which case all payments and things of value received hereunder shall be returned to Purchaser and Purchaser may recover such damages as may be proper. or {2) Purchaser may elect Lo treat this contract as being in full force and effect and Purchaser shalt have the right to an action for specific performance or damages, or both. (c) Anything to the contrary herein notwithstanding, is the evens of any litigation arising out of this contract, the court may award to the prevailing party all reasonable costs and expense, including attorneys' fees. 18, Purchaser and Seller agree that, in the avant of any controversy regarding the earnest money held by broker, unless mutual written instruction is received by broker, broker shsA not be required to take any action but may await any proceeding, ar at broker's option and discretion, may interplead any moneys or things of value into court and may recover court costa and reasonable attorneys' fees. ', /;~_/ t9, Additional provisions: A. At any time prior to closing, if this Contract shall not have first been terminated, Purchaser, his agents, contractors and engineers shalt have the right to enter the Property for the purposes of making surveys, loll tests, obtaining topographical information and for ether similar preliminary work, provided that such o~serations are conducted in such a manner as not to damage the Property or affect the operations of the Property. Purchaser shall indemnify and hold harmless Seller against all fees, charges or liens as a result of the foregoing activities, Seller shat] make available to Purchaser and his agents, all contracts, documents, leases, agreements or plats affecting the Premises as provided in Addendum. B. Seller shall quitclaim all rights to that certain access easement across the Hiller Property connecting the Property to Berry Creek Ranch, Filing i~o. 2. C. Each party represents to the other that no real estate broker has any claim far compensation or expenses as a result of this transaction and each party hereby indemnifies the other against any such claim. D, This Contract is subject to the modifications and agreements set forth in the attached Addendum, To the extent that any of the terms and conditions of this Contract conflict with or are inconsistent with the terms and conditions of the Addendum, the Addendum shall control. 28, lt~his proposal is secs ted by Seller in writing and Purchaser receives notice of such acceptance an ar before September S t8 ~9 ,ibis instrument shall become a contract between Seller and Purchaser and shall inure t she benefit of the h ~ira, successors and assigns of such parties, except as stated in paragraph 7. ~: done Purchases Ge0 rge N. G i 11 e t t, J r. nu. Broker Purrharrr Da,• By: Purchaser's Address ('n+e fotlo.visrY section to be earnpleted bf Seller and listing Agent) 21. Seller accepts the above proposal thin day of Se~t~tnh? r , 19_...,Q,,.. _- to pay a commission of 96 of the purchase price for services in r.~! js_tra.ae_.:,,,rr, and agrees that, in the event of forfeiture of payments and things of valu;.~ecei ,,: hereunder, such payments and !hinge of value shall be divided between listi,~.6s~1,~, ,.,,fir, pne•half thereof to said broker, bet not to exceed the commission, and the ire-t~f,.11... JUNE CREEK AN MPANY By : Sellrr ~~ Sellrr Seiler'sAddress ~ ~ Rev t(!~._ t1aT I = f'Qloradn $1F,5$ 1~1~11~~l~`ili!f 1~I~~JI-~~Ii~d~~~s' ', EXHIBIT A PROPERTY DESCRIPTIaN ORDER NO.: 4733-VC3 PARCEL 1 That part of the Northwest 1/4 (NW1/4} and the North 1!2 of the Southwest 1/4 RN1/25W1/4} and that part of the South 1/2 o the Southwest 1/4 IS1/28W1/4} all in Section 4, Township 5 South, Range 82 West of the Sixth Principal Meridian lying South of the Southerly boundary of Interstate Highway No. 70 and lying Easterly of the Easterly boundary of U.S. Highway No. 6 access road to said Highway No, 70, a$ said roadways are described in Special Warranty Deed to the Department of Highways, State of Colorado recorded in the Eagle County, Colorado Clerk and Recorder`s Office on May 14, 1959 in Book 215 at Page 183 and lying northerly of the Denver and Rio Grande Western Railroad Right-of-way. EXCEPTING from the above described parcel of land: A. that portion conveyed to Gerald L. Dillon and Ramona C. Dillon leased to Skelly ail Company. a Delaware Corporation in Deed recorded June b, 19$B in Baok 485 at Page 181 as Reception Na. 381385. B. that portion conveyed to Edwards Land Investors, a Colorado General Partnership in Deed recorded November 5, 19$6 in Book 451 at Page 773, as Reception No. 348011. C. that portion conveyed to 4020 Land Investors, a Partnership. in Deed recorded November 5, 1986 in Book 451 at Page 784, as Reception No. 348022. D. that portion conveyed to Singletree Golf Club, a Colorado General Partnership, in Deed recorded May 8, 1987 in Book 462 at Page 277, as Reception No. 358504. E. that portion conveyed to Ray L. Miller and Ruth Miller in Deed recorded July 22, 1956 in Book 148 at Page 31. PARCEL 2 A part of the E1/2E1/2 of Section 5, Township 5 South, Range 82 west of the bth P.M., County of Eagle, State of Colorado, More Particularly described as follows: Commencing at the Northeast Corner of said Section 5; thence S. O1 degrees 25'31" W. and along the East line of said Section 5, 2025.88 feet to the point of beginning, said point being on the Continued on next page ~~ • ~ i Ex~iBi~r A PROPERTY DESCRIPTION CONTINUED ORDER NO.. 4733-VC3 Southerly right of way Line of the Interstate Highway 70 access to t1.S. Highway No. 5; thence S. 73 degrees 27'31" W. and along said Southerly right of way line 74.34 feet; thence S. 77 degree$ 39'41" W. and along said Southerly right of way line Ib.50 feet to a point on the Easterly right of way Iine of the Denver and Rio Grande Western Railroad right-of-way; thence S. 15 degrees 23'59" E. and along said Easterly right of way line 299.69 feet to a point on the East line of said Section 5; thence N. O1 degrees 25'31" E. and alang said East line 313.72 feet to the point of beginning. Legal description will change upon receipt of survey showing land to be conveyed. COUNTY OF EAGLE STATE 0~' COLORADO EXHIB~B !!se prrWed ft ~ tW foem aOPe~ h ~ ~ .~_ C~ioraetr R:al £awe Cernmisde~ (NTD tl•u-tl! ~ THLS FORM IS USED ITV A CONSIfMER C'REAIT'IIANSA4.TION. CONSULT L~CA[. COUNSEL. 1145 tS A LEGAL INSTRUMENT, (F NOT lR(I)QS'iOOD, LEW4 TAX OR OT]IJES CWI~l5q, SHOULD SE CONSULTED bEFO1tE,s ,.. °,. ~. PROMISSORY NOTE u.s. s ' 276' p00' 00 Eagle County ~~ January 5 s90 t, IaDR VALUE RECEIVED, usr ur-denigrxd (&...,. .rl ptanise(sl to pay JUNE CREEK RANCH COMPANY, a Colorado joint venture er orde4;Note Holden the principal wm o(pNE MI LI,ION TWO H[7NDRED SEVENTY-SIX THOUSAND AND NO/140 ________________----»----_---_-----__-_-_ __ _ ___ ~ 3S. Dolton, wins inkn:st on t1x unpaid prvscipal balance fi~ota Ja11ua ~~ 19 4Q.. , wHi~}ai/s ae the nMe p( ' Q percent per mourn. latincipat arKt interest shall be payable al ~.p - ~..a......~Qx 154Q. V$ i 1 _ CO 81658 or such at3su place ss tlse iJate ° a~~ in quarterly * py,~or Seventy-Nine 'E'x1~us~ad....aS.PYe.~ # ~uns~r~d ~~>~t~- and No~100 -_-.._-__--___-..__..________..--------- o~n.~ tu.s.ti 79, 750.04L~aethe5th daydach January, A,8ri1, July ** .~g;~ January 5 , 1x94 . suci p , .~. is shall continue until tht eusite itsdebtedrsess evidenced by ttUS Note is hsgy paid; provided I , if oat ~...,.~ paid, the entire principal amourst outsundinj and accrued insenest thereon, shUl be due and payable as October 5 .197 Accrued interest shall be due and payable on principal payment due dates. Interest shall be compounded annually and the first interest payment due on January 5, 1944, representing ~ years accrued interest is anticipated to be approximately $854,369.96, The interest rate shall be adjusted as set forth in Exhibit A attached hereto and made a part hereof * principal ** and October Z. Batvwer shall pay to the Note liotda a late tharge of~ - ~ rk of any , , , ..., na neeeived by tlse Note Holder within 3 a drys after the payment is due. 3. pwyments recriYed for application us this Note steal! be applied first w use payment of late charges, if any, sccorsd to the payment of accused irwerest al the rare specified below, if any, dlird, to xcrued interest first spocifsed aba+e, and the balance applied in seduction of the principal amount hereof 4. If any payment required by this Note is rsot psid when due, of if any defauh under any Deed of Trust securing this Note occurs, the eotirc principal amount outstanding and accrued interest thereon shall at once L ....,,, due and payable at the option of she Note Holder (Accekratioral; and the indebtedrsess shall beu interest as the tau of 1 g . Q pcrcaM per annum from the dale of default. The Noe l~iolda shall be entitlod to collar all resuonabk costs and expense of collection anNor suit, irscludnag, but not limited to seisanabk attoeneys' tees. S. 8...,.. .r may prepay the pincipal amount outstanding under This Note, in whole or in pan, at any time without pen:Itxe*wrt. IJAny partial principal prepayments shall be applied to principal ,payments due in inverse order of maturity. !j °w~ 'y.. ,r . Ne.NIUbI-ll~t3. 1'lloIK1S501tYMORE SndtadhbfisAl~a.li23~r.MkAre..l,akerood.Cpsfltl/-1>~3-!)Ii100 ~~ ii J , Fa ~~~; b. 13a. ~.+er and alt other rnaitea, sureties, juarantars, aasd ... ~ .., a.. _.ry waive preserttmerrt. nave d dishonor read psalest, rand n. , ttgroe b any easemians d time of r , , „ ~ ~ and partial payments befase, at. of al4er nnsttarity. This Note sha11 be the joint and several ob1'a=sass d Bontrwet and all otlaer makers. sumies, guarantors nrrd Indorsers, and their naooessors and assigras. T. Any ndice to Borrower provided kx in dais Nde shall be is writing and shall be;ivrn and bce~l'ective upon (q delivt:ry to 6otrvMrr or (13 mailin6 strclr notice by first~class U .S. mail, addressed to B . . r at the Borrower's address stated below. or to such atha address as Sorno+ser may designaae by notice to the Note Hnlde:r. Any notice to the Nok Holder shall be in writing and shall be given and be ef~~..: ~ .upon (1) delivrry m Note HoWeror (2) by mailing such mice by first-class U.S. suit, to the Note Holder at the address stated in the first paragraph d this Note, or io such other address as Note Holder may designate by notice to BormvMer. g. The indebtedness evidenced by this Note is secutrd by a Dad d Trust dated Jdl'll>iarV 5 , Iq 9 D ,and until mteased said ~aadof Trust contains additional rights d the Note Holder. Sud rights may cause Acceleration d the indebtedness evidenced by this Nae. Rekrence is made to said Deed d Trust for such additional terms. Such Decd d Trust grants rights in the property identified as follows: As set forth on Exhibit 8 attached hereto and made a Bart hereof Colarada (CAUTTON: SLGN ORIGINAL Nt7fE ONLY/RETAIN COPY) IF BORROWER 1S NATURAL PFRSON(5): 1ai.rViSVr+ iV. ~ilLLC.'1"1'~ ~JK. doing business as IF BORROWER IS CORPORATION: ATTEST: Nurc d c. , .... . by senetary r ..... (SEAL) [F BORROWER IS PARTNERSHIP: Name d Partnership by Gt~eral Panrrv Bomawer's address: P • O • Box 7 r Va i 1 , CO 8165 $ ~GiafP THIS NOTE 1N A SAFE PLACE. THE ORIGINAL OFTHIS NOTE MUST BE EXHIBITED 7'O THE PUBLIC TRUSTEE IN ORDER TO RELEASE A DEED OF TRUST SECURING THIS NOI'8. ~ ~ ~ EXHIBIT ]~l (Attached to and incorporated into Promissory Note dated January 5, 1990, between George N. Gillett, Jr., as Borrower, and June Creek Ranch Company, as Note Holder} On and after January 5, 1994, interest shall be calculated at an annual rate equal to the announced "Base Rate" established by the FiretBank of Vail ("Interest Rate"}. Commencing January 5, 1,994, interest shall accrue and be paid for each year at the Interest Rate published on January 5 of each year or the first business day thereafter (the "Adjustment Date"). Should the FirstBank of Vafl discontinue, for any reason, publication of the Base Rate, then the Interest Rate for purposes herein, shall be the announced "prima rate" by a regional commercial bank selected by Note Holder. If this Note is in default, Note Holder shall have the option, on the Adjustment Date, so long as the Note has not been accelerated, of either (i} retaining the Interest Rate then in effect on this Note, ar (fi} adjusting the Interest Rate as set forth above. Notwithstanding anything herein to the contrary, the annual Interest Rate established above shall not be less than 1p.0~ nor exceed 15.0. s >JX>{~i c +~ ter r.ure ~r«~ o< uv. t~ wt -r rite CNorbo Real F.~aM Cws,elWw 17p Tllt•pl IF THIS FORM tS USED iN A CONSUMER CREDIT TRANSACTION, CONSULT LEGAL COUN5EL. TNti td A LEOAL INSTRUAtENL tF 1tOT UNOER8T000, iEOAi, TAX OR OTHER COUN$FL aHOUID 0E COMEUREO IEFDRE 510NIN0. DEED OF TRUST (Due on Transfer --- Creditworthy Restriction) TH[S DBED OF TRUST is made this . 5th -day of JdI31d~~V , l9 .~ ,between GEORGE N~~~ T,T,Fm~r , ~'R - {Bortnwer), whose address is P - n _ Sox 7' Va i 1 ~ CQ ~,} ;~,.6 ~ 8 ; turd the Public Trustee of the County in which the Property (see paragraph l) is situated (Trustee); for the benefit of JUNE CREEK RANCH COMPANY, a Colorado joint venture (Lender), whose address is p. O, Box 1640, Vail, CO 81658 Borrower and Lender covenant and agree as faliows: 1. Property in Trust. Borrower, in consideration of the indebtedness herein recited and the trust herein created, hereby grants and conveys to Trustee in trust, with power of sale, the following described property located in the County of ~''•at; ~ o ,State of Colorado; As set forth in Exhibit A attached hereto and made a part hereof ~ 1.:.:r{+as~-the-fires= ar fcnr~ -IZ~P c~i {property Address), together with all its appurtenances (Property). 2. Note; Ocher Obligations Secured. 'This Deed of Trust is given to secure to Lender: A. the repaymenE of the indebtedness evidenced by Borrower's note (Note) dated January 5 19 90 i the principal sum of One Million Two Hundred Seventy-Six Thousand and No/1~?~ U.S. Dollars, with interest on the unpaid principal balance from January 5 , Iq ~ 0 , at the rate of ~ percent per annum, with principal and interest payable at P • O. BO}C 1b4 ~? r Vail, CO 81658 or such otherplace as the Lender may des_i$~ate, in t~uarterly principal payments of Seventy Nine Thousand Seven Hundred Fifty and No/loo -------__..__..__^____ Dollars (U,S. S 79.750.00 )due on the 5th day of each January, April ** beginning January 5 , 19 94 ;such payments to continue until the entire indebtedness evidenced by said Note is fully paid; however, if not soonerpald, the entire principal amount outstanding and accrued interestthereon, shall be dun and payable an October 5 ~ 1g9~ • ~f 7, * Interest shall be calculated and paid as set forth in the Note. ** July and October and Borrower is to pay to Lender a late charge of 5 ,.~ g6 of any payment not received by the Lender within days after payment is due; and Borrower has the right to prepay the principal amount outstanding under said Note, in whale or in part, at any time without penalty except B. the payment of all other sums, with interest thereon at ~ R - ~ ~ per annum, disbursed by Lender in accordance with this Deed of Trust to protect the security of this Deed of Trust; and C. the performance of the covenants and agreements of Borrower herein contained, 3. Title. Borrower covenants that Borrower awns and has the right to grant and convey the Property, and warrants titre to the same, subject to general real estate taxes for the current year, easements of record or in existence, and recorded declarations, restrictions, reservations and covenants, if any, as of this date and except 4, payment of Principal and Interest. Borrower shall promptly pay when due the principal of and interest on Ehe indebtedness evidenced by the Note, and late charges as provided in the Nole and shall perform all of BoROwer'sothercovenants contained in the Note, 5. Application of Payments. All payments received by Lender under the terms hereof shall be applied by Lender first in payment of amounts due pursuant to paragraph Z3 (Erscrow Funds for Taxes and Insurance), then to amounts disbursed by Lender pursuant to paragraph 9 (Protection of Lender's sccuriry), and the balance in accordance with the terms and conditions of the'Note. NO. TO 73•tl•83, UEF:n QF TRU57 IDue on 7Y~nsrer - Cndiiworrhy ttesrricdonl dndfard PubU~hln1, fli! W. sth Avi., L~Irw~~od, CC110It1..t~f1 Sil.woa rsu~u 1 ~- '~~'/ /~ 9•ts G. Prior Mortgages and Deeds of Trust; Charges; liens. B ..~.. ~ shall perform all of Borrower's obligations under any prior decd of trust and any other prior liens. So:rower shall pay all taxes, assessrneats and outer charges, fines and impositions attributable to the Pt+openy which may have or attain a Drily over Chia Deed of Trust, wad leasehold payments or gt+ound nenu, tf any, in the matuter set alit in paragraph 23 (Escrow Funds for Taxes and Insurance) or, if not rcquirod to be pu'd in such manner, by Bamower making payment when due, directly to the payee thereof. Despite the foregoing, Borrower shall not be required to make paymems otherwise required by this paragraph if Bon+ower, after notice to Lender, shall in Rood faith contest such obligation by, or dsfend enforcement of such obligation in, legal proceedings which operate to prevent the enforcement of the obligation or forfeiture of the Property or any pan thereof, only upon Bornovver making all such contested payments and other payrtxnts as ordered by the coon to the rcgtstry of the coup in which such proceedings are filed. 7. Property Insurance. Borro+er shah keep the improvements now existing or hereafter erected on the Property insured against loss by fire or hazards included within the urm "extended coverage" in an amount at least equal to the lesser of (1 }the insurable value of the Property or (2) an amount sufficient to pay the sums secured by this Decd of Trust as well as any prior encumbrances on the Property. A11 of the foregoing shall be known as "Properly Insurance". The insurance carrier providing the insurance shall be qualified to write Property insurance in Colorado and shall bt chosen by Botz+Ota~tr subject to Lender s right to reject the chosen carrier for reasonable cause. Atl insurance policies and renewals thereof shall isiclude a standard mortgage clause in favor of Lender, and shall pt+ovide that the insurance carrier shall notify Lender at least ten (!0) days before cancellation, termination or any material change of coverage. Insurance policies shall be furnished to Lender at or btforc closing. Lerider shall have the right to hold the licies and renewals thereof. 1n the event of loss, Borrower shahgive prompt notice to the insurance carrier and Lender. Lender may make proof of loss if rat mstde promptly by Borrower. Insurance proceeds shall be applied to restoration or repair of. the Property damaged, provided such rcs[oration or repair is etottomically feasible and the security of this Deed of Trust is not thereby impaired. if such restoration ar repair is not economically feasible or if the security of this Decd of'I~ust would be impaired, the insurance procBeds shat! be applied to the sums secured by this Deed of Trust, with the excess, if any, paid to 13orrtiwer. !f the Properly is abandoned by Borrower, or tf Borrower fails to respond to Lender within 3t? days from the daft notice is given in accordance with paragraph lFi (Notice) by Lender to Borrower that the insurance terrier offers to settle a claim for insurance benefits, i.ender is authorized to collect and apply the insurance proceeds, at Lender's option, wither to restoration or repair of the Property or to the sums secured by this Deed of Trust. Any such application of proceeds to rinciepal shall not extend or postpone the due date of the installments referred to inparaggrraphs 4 {Payment of Principal and Interest) and 23 EEscinw Funds for 'Taxes and Insurance} or change the amount of such rnstalIments. Notwithstanding anything herein to the contrary rt under Paragraph l8 (Acceleration; Foreclosure; Qther Remedies} the Property is acquitrd by Lender, all right, title and interest of BotTOwer rn and to any insurance policies and in and to ttsr proceeds thereof tssulting from damage to the Properly prior to the sale or acquisition shall pass to Lender to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition. All of the rights of Botmwer and Lender hereunder with respect to insirance carriers, insurance policies and insurance proceeds arc subject to the rights of an holder of a prior deed of trust with respect to said insurance carriers, policies and proceeds. $. Preservation and Maintenance of Property. Borrower shall keep the Properly in good repair and shall not commit waste or ~t impairment or deterioration of the Property and shall comply with the provisions of any lease if this bred of Trust is on a ~easehold. Borrower shall perform all of Borrower's obligations under any declarations, covenants, by-laws, rules, or other documents gavetning the use, ownership or occupancy of the Property. 9. Protection of Lender's Security. Fatcept when Bonvver has exercised Bortovver's rights under paragraph 6 about, if the Bot'rorver fails to perform the Covenants and agreements contained in this Deed of Trust, or if a default occurs ,n a pnor lien, or if an action or pmreedtng is commenced which materially affects Lender's interest in the Property, then Linder, at Lender's option, with satire to Borrower rf rer~uired by law, may make such appearances, disburse such sums and take such action as is necessary to protect Lender's interest, including, but not limited ta, disbursement of reasonable attomry's Peas and entry upon the Proppeerty to make repairs. Borrower hereby assigns to Lender any ri$ltt Borrower may have by reason of any prior encumbranec on the F...,,...y ar by law or otherwise tv cure and default under said pnar encumbrance. Any amounts disbursed by Lender pursuant to this paragraph 9, with interest thereon, shall became additional indebtedness of Bartovver secured by this 17eed of Tivst.Sash amounts shall be payable upon notice from Lender to Borrower requesting paXmcnt thereof, and Linder may bring suit to collect any amounts so disbursed plus interest specified in paragraph 26 (Neu; Other Obligations Secured). Nt~ting contained in this paragraph 9 shall inquire Linder to incur any expense or take any action hereunder. IA. Inspection. Lender may make or cause to be made reasonable entries upon and inspection of the Property, provided that Lender shall give Borrower notice prior to any such inspection specifying reasonable reuse therefor related to Lender's interest in the I`~ .r ..y. 11. Condemnation. The proceeds of any award or claim For damages, direct or consequential, in connection with an con- dernnation orother taking of the Properly, yr part thereof, or far conveyance m lieu of condemnation, are hereby assigned and shall be paid to Leader as herein provided. Ho-rever, all of the rights of Borrower and !.ender hereunder with respect to such proceeds arc subject to the ttights of an holder of a prior died of uvst. In the event of a total taking of the Ptopeny, the proceeds shall be applied to the sums secured by this Deed of Trust, with the excess, if arty, paid to. Barrrnver. !n the event of a partial taking of the Properly, the proceeds remaining after taking nut any part of the award due any prior lien- holder (net award) shall be divided between Lender and Borro~+er, in the same ratio as the amount of the sums secured by this Died of'l~ust immediately prior to the date of taking bears to Borrower's equity rn the Progeny immediately prior to the date of taking. Borrower's equity in the Properly means the fair market value of the property less the amount of sums stcurrd by both this Decd of Trust and all prior liens (except texts) that arc to receive any of the award, all at the value iiiunediately prior to the date of taking. If the Properly is abandoned by Borrower, or if, sfttr notice by Lrnd~r to Bon~ower that the condem>sor offers to males an award or settle a claim for damages, Bornower fails to respond to Lender within 34 days after the date such notice is given, Lender is authorized tv collect and apply the proceeds, at Lender's option, either to restoration or repair of the Properly or to the sums secured by this l3eed of 7hist. Any such application of proceeds to principal shall nut extend or postpone the due date of the installments referred to in paragraphs 4 (Payment of Principal and lnlerest) and 3 (Escrow Funds for Taxes and Insurance) oar change the amount of such installments. 12. Borivwer Not Released, Extension of the time for payment or modification of amortization of the sums secured by this Deed of Trust granted by Lender to any successor in interest of Borrower shall not operate to release, in any manner, the liability of the original Borrower, nor Borrower's successors in interest, from the original terms of this Deed of Trust. Lender shall not be required to commence pt~nceedings against such successor or refuse to extend tune for payment or otherwise modify amortization of the sums secured by this Deed of Trust by reason of any demarid made by the ongtrial Borrower nor Borrower's successors in interest. I3. Forbearance by Lender Not a Waiver. Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by law, shelf not be a waiver or preclude the exercise of any such right yr remedy. l4. Remedies Cumulative. Each nernedy provided in the Note and this Deed of Trust is distinct from and cumulative to all other rights or remedies under the Note and this Deed of Trust or afforded by law or equity, and maybe exercised concurrently, independently or successively. 13. Successors and Assigns Bound; Joint and Several Liability; Captions. The covenants and agreements herein contained shall bind, and the righis hereunder shalt inure ta, the respective successors and assigns of Linder and Borrower, subject to the previsions of pairagraph 2Q ('Transfer of the Property; Assum lion). All covenants and agreements of Borrower shall be joint and several. The captions and headings of the paragraphs in this Deed of~rust are for canvtnitnct only and are not to be used to interpret or define the provisions hereof. !6. Notice. Except for any notice required bylaw to be given in another manner, (a} any notice to Borrower provided for in this Died of Trust shall be in writing and shall be given and be effecvve upon (q delivery to Borrower ar (2) mailing such notice by first-class U.S. mail. addressed to l3onower at Borrower's address stated herein or at such other address as Borrower may designate by notice to Lender as ravided herein, and (b) any notice to Lender shall be in writing and shall be given and be effective upon (f) delivery to Linder or (2) mailing such notice by first-class U.S. mail, to Lender's address stated herein or to such other address as Lender may designate by noi'ici to Borrower as provided herein. Any notice provided for in this Deal of Trust shall be deemed to have been given to Borrower or Lender when given in any manner designated herein. 17. Governing 1.aw; Severability. The Notc and this Deed of Tnist shall be governed by the law of Colorado. In the event that any provision or clause of this Detd of Trust or rite Note conflicts with the law, such conflict shall not affect other previsions of this Deed of Trust or the Note which can be given effect without the conflicting provision, end to this end the provisions of the Deed of Trust and Note are declared to be severable. ~-~ 18. Accxleration; Foreclosure; Other Remedies. Except as provided in pate raph 2A (Transfer of the property; Assumption), opal Borrower's breach of any covenant oragreement of Borrower in this Decd of rust, or upon any default in a prior lien upon the Ptropert , (unlcsa Bortowr:r has exerelsed 8orro+vcr's rights under graph ti above), at !.ender s option, all of the sums accursed by this Deal of Trust shall be irttrrrediattly due and payable (Acceleration . Ta exercise this option, Lender may in+roke the pwrer of sale and any other remedies permitted bylaw. nder shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this Decd of Trust, including, but not limited to, reasortabk attorney's fees. if !..ender invakts the power of sale, !.ender shat! give written Holies to Trustee of such election. Trustee shall give such notice to Borrower of Borrower's rights as is pt+avided bylaw. Trustee shall record a copy of such notice as required bylaw, Trustee shall advertise the time and ~1ace of the sale of the Property, for not less than four weeks in a ttcwcpaperof gcnaral ctrculatian in each county in which the Ptopeny is suuated, and shall mail copies of such notice of sale to f3omvwer and other parsons as.prescribed by law. After the lapse of su~hh time as may be required by Iaw, Trustee, without demand on Borrower, shall sell the Property at public auruon to the hi hest bidder for cash at the time and place (which may be on the Propenyor an fart thereof as permitted by law) In one or more parcels as Trustee may think best and in such order as Trustee may determine. Lender or Lender's designee may purchase the Property at any sale. It shall not be obligatory upon the purchaser at any such sale to see to the application of ehe purchase money. Trustee shall apply the proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the sale, including, but not limited to, reasonable Trustee's and attorney's fees and costs of title evidence; (b) to all sums secured by th is laced of Trust; and (c) the cocoas, if any, to the person or persons legally entitled thereto. l4. Bortower's Right to Curt Default. Whenever foreclosure is commenced for nonpayment of any sums due hereunder, the owners df the Property or parties liable hereon shall be entitled to cure said defaults by paying all delinquent principal and interest payments due as of the date of cure, costs, expenses, late charges, attorney's fees and other fees all fn the manner provided by law. Upon such payment, this Deed of Trust and the obligations secured hereby shall remain in foil force and effect as though no Acceltration had occurred, and the foreclosure proceedings shall be discontinued. 20, Assignment of Rents; Appointment of Rcctiver; Lender in Possession. As additional security herturidtr, Borrower hereby assigns to Lender the rents of the property; however, Bortawtr shall, prior to Acceleration under paragraph !8 (Acceleration; Foreclosure; Other Remedies) or ebandanment of the Property, have the right to collect and retain such trots as they became due and payable. !,ender ar the holder of the Trustee's certificate of purchase shall be entitltd to a recover far the Property after Acceleration under paragrapph l8 (Acceleration; foreclosure; Other Remedies), and shall also be so entitltd during the time covered by foreclosure ~raceedings and the period of redemption, if any; and shall be entitled thereto as s matter of right without regard to the solvency or insolvency of Borrower or of the thou owner of the Property, and without regard to the value thereof. Such receiver maybe appointed by any Court of. competent jurisdiction upon ex pane application and without notice -notice being hereby ex rcssiy waived, Upon Acceleration under paragraph l8 {Acceleratron; Foreclosure; Other Remedies) or abandonment o~the Property, Lender, in person, by agent or by judicially-appointed receiver, shall be entitltd to enter upon, take possession of and manage the Prapeny and to collect the rents of the pert including those past due. Ali rants collected by !..ender ar the receiver shall be applied. first, to payment of the costs of preservation and management of the Property, second. to payments due upon prior liens, and then to the sums secured by this Deed of Trust. Lender and the receiver shall be liable to account only for those rents actually received. 2!. Release, Upon p men[ of ail sums stcund b this Deed of Trust. Lender shall reuse Trustee to inleasc this Deed of Trust sod she!! produce far Trustee rht Nate. Borrower shall pay all costs of rtecordation and shall pay the statutory Trustee`s fees. if Lender shall not product the Nate as aforesaid, then Lender, upon notice in accordance with paragraph Ib (Nutlet) from Borrower to Lender, shall obtain, at Lender's expense, and file any lost instrumen[ bond inquired by Trustee or pay the cost thcreaf ro effect the release of this Deed of Trost. 22. Waiver of >rxemptions. Barrowtr hereby waives all right of homestead and any othtrtxemptian in the l~opcrty under state or federal Iaw presently exi~stingg or hereafter enacted. ih:: E..:. l ;....., Fermi,, ,., .. }~Maurane: to a prior encumbrance. Subject to applicable law, Bompwer shall pay to Lttider,on each day installments of principal and i art payab(e under the Note, until the Note is paid in full, a sum (herein rcfertted to as "Funds") equal to of the _~;: ~, ~.. I~ ~~ ~: ~earfy taxes and assessments which may attain priority over this Deed of Trust, plus Yr'~of yearly premium installments for PropenX Insurance, all as reasonably estimated initially and from time to tune by n the basis of assessments and bills and reasonable esttmates thereof, taking into account any excess F'tirids not used ar s es. The Qrincipal of the Funds shat! be held in a separate account by the [.ender in t ~r the benefit of the Borrower and deposited in aq~istitunon the deposits or accounts of which are insured or guaranteed b a or start agency. Linder shall apply the Funds to pay surd taxes, assessments and insurance premiums, Linder may Hatch so holding and applying the Funds, analyzing said account or verifying and campfling said assessments and bills. Lender of required to pay Burrower any in(trrst ar earnings on the Funds. Lender shall give to Borrower, without charge, an annu tinting of the Funds showing credits and debits to the Funds and the purpose for which each debit to the Funds was made. T s arc pledged as additional security far thr sums secured by this laced of Trust. if the amount of the Funds held by shall not be sufficient to pay taxes, assessments and insurance premiums as thry fall dot, Borrower shall pa to Lender an nt necessary to make up the deficiency within 30 days from the dart notice is given in accordance with paragraph i6 (Notic nder to Borrower requesting payment thereof. Upon payme of all sums secured by this Deed of Trust, Lender shall simultaneously refund to Borrower any !;ands held by Lender. If u aragraph 18 (Acceleration; Foreclosure; Other Rertiedies) the propcrt~ is sold or the Property is otherwise acquirer! by Len nder s all appty,no later than immediately prior to the sale of the Properly or its acquisition by (,.ender, whichever occurs first, °g .. ~ed-ef Ti,.~r 24. Transfer of the Property; Ass~mpp~ion, Thc following events shall be rcferned to herein as a "Transfer': (i) a transfer or conveyance of utte {or any portion thereof, Icgsl or equitable) of the Property (or any pan thcreaf or interest therein), (ii) the execution of a contract or agreement cinattng a right to title (or any portion thereof, legal ar equitable) in the Property (or any part thereof or interest [heroin). (iii I yr an agreement granting a possessory right in the Property (or any portion thereof), in excess of three (3) years. (iv) a salt or transfer of, or the execution of a contract ar agreement creating a right to ac9uire or receive, more than fifty percent {SO°k) of the controlling interest or more than fifty percent (SO~k} of the beneficial interest rn the Harrower, (v) the reorganizanon, !r uidation or discalutian of the Harrower. Not to be included as a Transfer err ti) the creation of a lien or encumbrance subordinate to this Deed of Trust. I ii l the creation of a purchase money security interest for household appliances, or (iii) a transfer by devise, descent or by operation of the law upon the death of a joint tenant. At the election of Lender, in tilt went of each and every Transfer: {a) Borrower shall, upon Lender's request, submit information required to enable Lender to evaluate the creditworthiness of the person ("Transferee") who is, or is to be, the recipient of a Transfer, as if a new loan were bring made to Transferee. if Transferee is reasonably dctermintd by the Lender to be financially incapable otretirin~ the indebtedness according to its turns, based upon standards normally used by persons rn the; business of making loans an real estate in the same or similar circumstances, than all sums secured by this Died of Trust, at Lender's option, may become immediately due and payable ("Acceleration"), {b) If Lender exercises such option to Accelerate, Lender shall give Borrower notice of Acceleration in accordance with paragraph l6 (Notice}. The notice shall inform Botrawtr of the right to asses in the foreclosure proceeding the nonexistt:nce of a default ar any other defense of Harrower to Acceleration and sale. Such notice shall also provide a period of not less than l0 days from the date the notice is iven within which B .... .r may pay the sums delcarcd due. if Borrower fails to pay such sums prior to the expiration of such ptrind, nder may, without further notice ar demand on Borrower, invoke any remedies permitted by paragraph 18 (Acceleration; Foreclosure; Other Remedies!. Lender shall glue notice of such Acceleration, within thirty (30) days after notice of any Transfer is given to Lender by Borraweror Transferee in accordance with paragraph 16 (Notice). if Lender shall not give notice of such Acceleration within such thirty (30) days. then Lender will have no further right to such Acceltration. (c) If a Transfer occurs and should Lender not exercise Lender's option pursuant to this paragraph 24 to Accelerate, Transferee shall be deemed to have assumed all of the obligations of Borrower under this Dt3ed of Trust including all sums secured hereby whether or cwt the instrument tvidcncing such conveyance, contract or grant expressly so provides. This covenant shall run with tfie Property and remain in full force and effect until said sums arc paid in full. The Ltndcr may without notice to the Borrower deal with Transferee n the same manner as with the Borrower with reference to said sums including the payment orcrcdit toTransferee of undisburscd reserve Funds on payment in full of said sums. without in anyway altering or discharging the Botmwt:r's liability hereunder for the obligations hereby secured. (d}Should lender not elect to Accelerate upon the occurrence of such Transfer then, subject to (b) above, the inert fact of a !a se of time or the acceptance of pa men[ subsequent to any of such events, whether or not Linder had actual or constructive notice at such Transfer, shall Hat be deemed a waiver 4f Lender's right to make such election nor shall Lender fie ~~tapped therefrom by virtue thereof. The issuance an behalf of the Leader of a routine statement showing the status of the loan, whether or not Lender had actual or constructive notice of such Transfer, shah not be a waiver or estoppel of [.ender's said rights. ZS, Borrower's Capy. Sarrowcr acknowledges receipt of a copy of the Note and of this Deed of Trust. Continued on reverse side. EXECUTED 8Y BORROWER. lF BORROWER 1S NATURAL PERSON(S): ' GEORGE N. GTLLETT, JR. doing business as IF BORROWER IS CORPORATION: ATTEST: (SEAL) IF BORROWER IS PARTNERSHIP: None d Carporuion PRSideM Name d Partnership ~~~ Pwrcr day of • Y P d Ntxary Pub3ic MlJrc~~ 'If ~ n4ursl pawn a perwn+. imm~ the namefsl d wch petwu ~ i IT ~ e~rporai ian, imen. fa e-ampk. °kltn [kr n Pa<+ident and lane Dix a• Secrri~ry crf D~k k Co . ~ CMundo cort+otariun " If a pannnhip inters. fat eumplc. "yam Smith u jeneral partner in arW for Smith i Smith, a ~aneni ptwn+eMip" by STATE OF COlARA00 f5. fal}PlTY aF FA ~/~ The foregoing instrument was acknowlcdgcd befarc me this 19 ,fig, ~ by ~:e-n.,~, r~Ai I~ i 1 1 n~* ~ Tr Witness my hand and official seal. M commission ez ircs• ~ ~ T H O A W A P w ~ ~ ~ ! ~ ~$ ~ ~ ~ ~ ~ ~ .~ F ~ ~ ~ ~. ~ ,~ ~ ~U~, ~ ,, a~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~ ~ ~ x .~ H ~i 8 'i ~ ~ ~ , SCHEDULE A PROPERTY DESCRIPTION ORDER NO.: 4733-VCS PARCEL 1 That part of the Northwest 1/4 {NWl/41 and the North 1/2 of the Southwest 1/4 {N1/2SW1/4) and that part of the South 1/2 o the Southwest 1/4 {S1/25W1/4) all in Section 4, Township 5 South, Range 82 West of the Sixth Principal Meridian lying South of the Southerly boundary, of Ynteretate Highway No, 70 and lying Easterly of the Easterly boundary of U.S. Highway No. 6 access road to said Highway No. 70, as said roadways are described in Special Warranty Deed to the Department of Highways, State of Colorado recorded in the Eagle County, Colorado Clerk and Recorder's Office on May 14, 1969 in Book 215 at Page 183 and lying northerly of the~Denver and Rio Grande Western Railroad Right-of-way. EXCEPTING from the above described parcel of land: A. that portion conveyed to Gerald L. Dillon and Ramona C. Dillon leased to Skelly Oil Company, a Delaware Corporation in Deed recorded June 5, 1988 in Book 485 at Page 181 as Reception No. 381385. B. that portion conveyed to Edwards Land Investors, a Colorado General Partnership in Deed recorded November 5, 1986 in Book 451 at Page 773, as Reception No. 348011. C. that portion conveyed to 4020 Land Investors, a Partnership, in Deed recorded November 5, 198b in Book 451 at Page 784, as Reception No. 348022. D. that portion conveyed to Singletree Golf Club, a Colorado Genera! Partnership, in Deed recorded May B, 1987 in Book 462 at Page 277, as Reception No. 358504. E. that portion conveyed to Ray L. Miller and Ruth Miller in Deed recorded ,Tuly 22, 1956 in Book 14$ at Page 31. PARCEL 2 A part of the El/2E1/2 of Section 5, Township 5 South, Range 82 West of the 6th P.M., County of Eagle, State of Colorado, More Particularly described a$ follows; Commencing at the Northeast Corner of said section 5; thence 5. O1 degrees 25'31" W. and along the East line of said Section 5, 2025.88 feet to the point of beginning, said point being on the Continued on next page T"r~". ~ -,'~ .. ,_ BCHEOUi+E 1+ PROPERTY DESCRYPTION CONTINUED ORDER NO.s 4733-VC3 Southerly right of way line of the Interstate Highway 70 access to U.S. Highway No. 6; thence S. 73 degrees 27'31" W. and along said Southerly right of way line 74.34 feat; thence S. 77 degrees 39'41" W. and along said Southerly right of way line 16,5 feet to a point on the Easterly right of way line of the Denver and Rio Grande Western Railroad right-of -way; thence 3. 1S degrees. 23'59" E, and along said Easterly right of way line 299.59 feet to a point on the East line of said Section 5~ thence N. 41 degrees 25'31" E. and along said East line 313.72 feet to the point of beginning. Legal descriptiar- will change upon receipt of survey showing land to be Conveyed. COUNTY OF EAGLE STATE OF COLORADO _Z_ • • S CHE~U~.E A {centinued~ WATER RIGHTS t~WNE7 gY JUNE CREEK RANCH CO~SPANY 4S OF MAY 8, 1987 • _ __ An undivided 19.58 interest represented by fl.74 cfs absolute, out of a total of 3.08 cfs frown the Howard Ditch, Priority No. 280, with an appropriation date of June 79, 1894, adjudication date of . • March 5, 1901, Ervin the Eagle River in the County of Eagle, Colorado. Y, An undivided 86.Ui$ interest represented by 3.10 cfs, absolute, out of a total of 3.6 cfs from the Howard-Winslow Oitch, Priority No. 26, with an appropriation date of July 26, 1884, adjudication date of December 27, 1889, out of the Berry Creek in the County of Eagle, Colorado. An undivided 13.30 $ interest represented by 0.52 cfs, absolute, out of a total of 4.50 cfs Pram the June Creek Ditch, Priority No. 282, with an appropriation date of July 15. 1889, adjudication date of October 2, 1909, out of June Creek in the County of Eagle, Calarado. `` /~,~ ~~ -3- EXHIBIT D WATER RIGHTS OWNED ~3Y JU'JE CREEK RANCH CO~~IP~.[~TI' ~S OP SAY 3, 1987 Art undivided 19.58 interest represented by 0.74 cfs absolute, out of a total of 3.08 cfs from the Howard Ditch, priority No. 280, with an appropriation date of June 29, 1894, adjudication date of March 5, 1401, from the Eagle River in the County of Eagle, + Colorado. I An undivided 86.t]i$ interest represented by 3.10 cfs, absolute, out oz a total of 3.6 cfs from the Howard-Winslow Ditch, Priority X30. 26, with an appropriation date of July 26, 1884, adjudicatioc~ date of December 27, 3.889, out of the serry Creek in the County of Eagle, Colorado. An undivided 13.30 interest represented by 0.52 cfs, absolute, out of a total of 4.50 cfs from the June Creek Ditch, Priority No. 282, with an appropriation date of July 15, 1889, adjudication date of October 2, 1909, out of .7une Creek in the County of Eagle, Colorado. • • s ADDENDUM TO VACANT LAND CONTRACT TO BUY AND SELL REAL ESTATE This Addendum supplements and modifies that certain Vacant Land Contract To Buy And Sell Real Estate (the "Contract"} by and between George N. Gillett, Jr. ("Purchaser") and June Creek Ranch Company ("Seller"). All capitalized terms used in this Addendum shall have the meanings given such terms in the Contract, unless otherwise defined herein. The Contract is supplemented and modified as follows: 1. Cond.i;,.t7_c~ns Px-~rae~ent to Purchaser's Obligations. {a) Assignment of Right of First Refusal. Seller shall have obtained a consent to assignment of the Right of First Refusal, ar, in the alternative, Purchaser and Seller shall have executed documents, reasonably acceptable to Purchaser, evidencing Seller's obligation to exercise the Right of First Refusal by purchasing the land and improvements that are the subject of the Right of First Refusal, with funds to be provided by Purchaser (the "Miller Property") and sell to Purchaser the Miller Property at the purchase price that Seller paid to exercise the right of First Refusal. Between the .date of this Contract and closing of title, Seller shall be entitled to acquire the Miller Property pursuant to the Right of First Refusal. If acquired, and conditioned upon Purchaser's exercise of his option to acquire the Property, Seller shall be obligated to convey the Miller Property subject to the same terms and conditions as it was acquired. Seller shall promptly notify Purchaser of its acquisition of the Miller Property and shall provide Purchaser with copies of all closing documents associated therewith, (b) Representations and Warranties. The representations and warranties of Seller set forth under Paragraph 2 of this Addendum will be true as of the date of the closing and the Seller will have performed, observed and complied with all of its agreements prior to or on the date of the closing in accordance with the terms of the Contract and this Addendum. {c) Water Rights. Purchaser shall have approved, in its sole discretion, the Water Rights. Seller shall have not received notice of any pending or threatened suspension, modification, cancellation or litigation of the Water Rights. (d} Performance of Covenants. Seller shall have performed and observed all of its covenants, agreements and obligations contained in the Contract and this Addendum. (e) U.C.C. Search. Search shall have obtained a Certificate of Search of the U.C.C. Financing Statement records of Eagle County, Colorado, and the Colorado Secretary of State indicating that there are na security interest of record against the Property as of the date of closing, or which cannot be released as of the date of closing. {f) Estoppel Certificates. Seller shall have delivered to Purchaser an estoppel certificate dated as of the date of closing from the Stable Lease tenant. (g) No Material Chance. There shall be na material adverse change in the physical condition of the Property between the date hereof and the closing except as may be covered by insurance, and in the event such coverage is applicable, this condition is waived. (h) Title Commitment. Seller shall have delivered to Purchaser a title commitment issued by Stewart Title Guaranty Company No. 47733-VC3 (the "Title Commitment") for an owner's policy of title insurance, listing Purchaser as the prospective insured and showing an amount equal to the Purchase Price as the policy amount, and committing to insure good and marketable fee simple title to the Property in Purchaser upon closing. The Title Commitment shall expressly provide for the deletion of the standard printed exceptions from the title policy (except with respect to the portions of the Property located south of the railroad tracks) and shall be subject only to those title exceptions listed on Schedule B-2 of the Title Commitment which are acceptable to Purchaser. The title policy required to be obtained by Seller hereunder shall insure title in Purchaser consistent with the provisions of the Title commitment. (,~) Purchaser Aaaroval. Purchaser shall have reviewed and found acceptable, in its sole discretion, the zoning, land use designation and platting of the Property and the Miller Property, access to the Property and the Miller Property, the physical condition of the Property and the Miller Property, including without limitation, the soils, topography, hazardous waste and other environmental matters, asbestos issues and flood plain restrictions, and any other factor deemed significant to Purchaser, as each of the foregoing relates to the contemplated uses of the Property and the Miller Property by Purchaser. (j) Effect of Non-Fulfillment of Conditions Precedent. In the event any of the conditions precedent described in this Paragraph are not fulfilled in accordance with the Contract or if for any other reason Purchaser elects not to close on the purchase of the Property, Purchaser shall have the right (but not the obligation) to terminate this Contract on notice to Seller an or before the date of closing. Tn the event of termination by Purchaser under this provision on or prior to September 29, 1989, Seller shall retain only $5,000.00 of the earnest money deposit made pursuant to Paragraph 1 of the Contract. Tn the event of termination by Purchaser of this Agreement after September 29, 1989, Seller shall be entitled to retain the full $50,000.00 earnest money deposit. Thereafter, all rights and obligations of the parties under the Contract shall be terminated. 2. Seller's Rebresentations and Warranties,. Seller represents and warrants as of the date hereof and as of the date of the closing that the following are true and correct: (a) Deliverv of Documents. To the best of Seller's knowledge and belief, Seller has delivered true and correct copies of the originals of all documents, agreements, instruments, studies, plans, surveys, leases, permits and other materials of any nature whatsoever relating to the Property (the "Property Documents") including but not limited to the following; (~.) the stable lease dated March b, 1989 between Seller and Hillis Akin (the "Stable Lease"); Title Guaranty for an owner's the prospective Purchase Price (ii) the title commitment issued by Stewart Company No. 47733-VC3 (the "Title Commitment") policy of title insurance, listing Purchaser as insured and showing an amount equal to the as the policy amount, and committing to insure JCR-ADD2.CON - 2 - 9-1-$9 • • i good and marketable fee simple title to the Property in Purchaser upon closing. The Title Commitment shall provide for the deletion of the standard printed exceptions from the title policy and shall be sub~eet only to those title exceptions listed on Schedule B-2 of the Title Commitment which are acceptable to Purchaser; (iii) all documents evidencing exceptions to title contained in the Title Commitment; {iv) the Right of First Refusal, referenced in Paragraph 4 of the Contract. ('~) subdivision plats, all to the Property; (vi) rights owned by Seller described in Exhibit B The Master Plan, PUD as amended from time the water rights, dii and allocated to the to the Contract (the (~-i-~) ~ des== i= =' x= ditches and .ditch rights owned by the property to which the Right allocated to such operty under augme r otherwise {the "Right Guide and to time, relating tches and ditch Property as "Water Rights"}; c.. ~'~ ~~•~/ ,; weer of the real ~ ' ,efusal relates and ~ the applicable plan of of First Refusal Water (viii) all plans and specifications in Seller's possession relating to the Property; and (ix) an Improvement Location Certificate certified by a licensed land surveyor defining the boundaries of, and locating easements on, the Property. (x) all other leases, licenses, permits, contracts, documents and instruments of any nature whatsoever relating to or affecting the Property. (b) No Breach. Neither the execution of the Contract or this Addendum, nor the consummation of the transactions provided for herein constitutes, or will result in, any breach of the terms, conditions or provisions of, or constitute a default under, any governing document, indenture, mortgage,, deed of trust, loan agreement, lien, lease, license judgment, decree, order, instrument, or other verbal ar written agreement to which seller is a party or is subject to or to which the Property is subject, except as provided herein. (c) Title. Except as permitted as an exception to title as set forth in Subparagraph 2(h) hereof, Seller has good and marketable title to the Property to be sold hereunder free and clear of (i) all monetary liens, claims and encumbrances of any nature whatsoever, and (ii) all other liens, claims and encumbrances of any nature. There exists no restriction on the right of Seller to transfer and assign the Property and assets to be sold hereunder and convey good title thereto to Purchaser as herein contemplated. Notwithstanding the foregoing, Seller makes no warranties with respect to the Water Rights, except as expressly provided herein. (d) Litiaation. Except for Eagle County, Colorado zoning matters, a full oral. explanation of which shall be provided to Purchaser within ten (l0) days of the date of the Contract. there are no actions, suits or proceedings pending or threatened against Seller or the Property or which might adversely affect Seller or the Property. JCR-ADD2.CDN - 3 " 4.5-89 . ~ ~ • (e) Compliance with Law. Except for Eagle County, Colorado zoning matters, a full oral explanation of which shall be provided to Purchaser within ten (~.0) days of the date of the Contract, Seller has not received any notice of and has no knowledge of the assertion of any violation of any law, rule, regulation or order with respect to the Property. Seller has all licenses, permits, certificates, orders, approvals and authority from all governmental agencies which are necessary to conduct the business of the Property as presently conducted. (f) No Chanrse. Between the date of the Contract and the closing, Seller (i) shall not dispose of any interest in the Property or the Water Rights and shall not, without Purchaser's consent, mortgage, pledge or subject to lien or other encumbrance any interest in the Property, (ii) shall not, without the consent of Purchaser, agree to or consent to any restrictions, covenants, conditions, easements, encroachments or any similar matters, affecting the Property or any part thereof, (iii) shall not without the consent of Purchaser, enter into any contracts, leases to Seller or leases by Seller, (iv) shall keep the Property insured at the current level of insurance maintained thereof, and (v) shall make available to Purchaser, at reasonable times, access to the Property. (g) Notice of Assessments: Proceedings. Except for Eagle County, Colorado zoning matters, a full oral explanation of which shall be provided to Purchaser within ten (10) days of the date of the Contract, Seller is not aware of and has not received notice of any existing or contemplated special assessments or special district taxes, or condemnation, eminent domain or zoning proceedings which would affect the Property. (h} Material Misrepresentations. Seller has provide Purchaser with copies of all documents in its possession for Seller's review and approval and the copies of all such documents are true and complete. No document, certificate or written statements furnished to Purchaser by or on behalf of Seller in conjunction with the transactions contemplated hereby contains or will contain any untrue statement of material fact, or omits or will omit to state any material fact necessary in order to make the statements contained herein and therein not misleading. Except fora dispute with the Board of County Commissioners for Eagle County, Colorado regarding the zoning and allowable density on the Property, the circumstances of which have been fully disclosed to Purchaser, there is no fact known to Seller which materially adversely affects or in the future may (so far as Seller can now foresee) materially adversely affect the Froperty which has not been set forth in the Contract. (i) Modification of Seller's Representations and Warranties by Supplemental Schedules. (i) All the representations and warranties of Seller contained in the Contract and this Addendum shall be true and correct an and as of the Closing as if then made or given, except far changes between the date hereof and the Closing, which are not material. (ii) Seller may amend any representations, warranty or statement of fact made by Seller in the Contract or this Addendum or in any contract, lease, agreement or document delivered to Purchaser in connection herewith so as to take into account facts ascertained by Seller hereafter, by delivery to Purchaser, at or prior to closing, such supplemental JCR-MD2.CON -4 - 9-1-89 schedule or schedules as may be appropriate. If such amendment, in Purchaser's reasonable judgment, is a material amendment, Purchaser shall have the right to terminate the Contract upon notice to seller, in which case Purchaser shall be entitled to a refund of the earnest money deposit made hereunder. 3. Environmental Survev. The parties hereto acknowledge that Purchaser will perform or cause to be performed, at Purchaser's own cost, an environmental survey and analysis, which may, at Purchaser's option, include an analysis of asbestos, PCB in various forms, or other hazardous substances as Purchaser, in his sole discretion, deems necessary. Purchaser shall bear the cost of any such survey and analysis and if the results of such survey and analysis reveal unacceptable levels of such hazardous substances such as to preclude the use of the Property for its intended purposes, Purchaser shall determine, in his sole discretion, whether to close on the transactions contemplated by this Contract. If Purchaser elects not to close on the transactions contemplated by this Contract, the earnest money deposit made by Purchaser pursuant to Paragraphs 1 and 3 of the Contract shall be refunded to Purchaser and thereafter neither party will have any obligation to the other under this Contract. 4. MiSCpl.7_anPOUS. (a) Notices. Any notice under the contract shall be in writing, signed by the party giving the same and shall be deemed properly given and received when actually given and received or two (2) business days after mailed, if sent by registered or certified United States mail, postage prepaid, addressed to the party to receive the notice at the address set forth below of such other address as any party may specify by notice to the other party. If to Purchaser: George N. Gillett, Jr. The Gillett Group 1290 Westhaven Drive Vail, CO 81657 With a copy to: Nola S. Dyal, Esq. Vail Associates, Inc. P.O. Box 7 Vail, CO 81558 If to Se1lEr: With a copy to: June Creek Ranch Company P.O. Box 1640 Vail, CO 81658 Attn: Frederick D. Green Frederick S. Otto, Esq. Otto, Peterson & Post P.O. Box 3149 Vail, C4 81658 (b) Brokerage Commission,. Purchaser and Seller hereby represent and warrant to each other that each has respectively not engaged or utilized the services of any broker or finder in connection with this transaction. Each party hereby agrees to indemnify and hold the other party harmless from and against any liability from any claims of any brokers or finders arising out of breach of this provision. (c) Successors and Assigns. The Contract shall be binding and inure to the benefit of the parties hereto and JCR-ADD2.CpN - 5 - 9-1-$9 their respective successors and assigns. Purchaser may assign its rights under the Contract to any person or entity, without restriction and without the prior written consent o! seller, provided, however, that Purchaser shall guarantee the obligations of any such assignee, including without limiting the generality of the foregoing, all obligations on the promissory note referred to in Paragraph 3 of the Contract. (d} entire Aareemetlt. This Addendum and the Contract and the Exhibits thereto, when taken together in accordance with their terms, represent the entire agreement between the parties hereto with respect to the subject matter hereof and alI prior agreement, understandings or negotiations shall be deemed merged herein. No representations, warranties, promises or agreements, express or implied, shall exist between the parties except as stated herein. (e} Ho Oral Modifications. No amendments or modifications to the Contract or this Addendum shall be made or deemed to have been made unless in writing executed and delivered by the party to be bound thereby. (f} Counterparts. The Contract may be executed in two or more counterparts, each of which shall. be deemed an original,, all of which together shall constitute one and the same instrument. (g} Survival. The representations and warranties set forth herein shall survive the closing and delivery of the deed, and shall be enforceable at law or in equity. In addition, Purchaser may rely on the representations and warranties of Seller and shall not be prevented or estopped from pursuing any remedy available to ft for the breach or violation of any such representation or warranty by reason of any documents or other instruments furnished to Purchaser or any inspection made by or for the benefit of Purchaser. (h} Effect of Addendum. To the extent that any provisions of this Addendum are inconsistent or conflict with any of the terms of the Contract, the terms of this Addendum shall control. Except as provided herein, the provisions of the Contract remain in full force and effect. IN WITNESS WHEREOF, the parties hereta have executed this Addendum as of the day and year first written above. PURCHASER: .• ~ ~~r i'. ; ~ . ,~ , ,~ U~eorge~ N. Gillett, Jr. SELLER: JUNE CREEK RANCH COMPANY, a Co1~~ad ._j nt venture r gy. ~~ . JCR-ADd2.CON -b-- 4-1-89 t~ ~1~ O 3 ~~ 0 W ~~ .~~ ~r~ ~~ ~S C'_ ~, ~. o o ~ a ~- O N i o Y~ ~. 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Both prlnclpal of and Interest on this Note ors payable at the Town, In lawluf money of the Unhad 9tatee of America which, a< the rime of payment, Is legal tender for the payment of public or private debts, provided interest may be paid to the owner of record as of the Record [Jars by chock drawn upon the Town and mailed to lire Registered Owner at his or her address as it appaare on the Nofe registry lwoka malnlafnad by the Town, The Record Data la the flhh day o1 the calendar month next preoeding arty interest payment data. This Note le issued by iha Town Council 01 the Town of Vell, Cotnrado, fnr the purpose of providing lunde far acquleltlon o1 the real property qha 'property"i, by virtue of an In full conformhy with the Cnnetltutlan of the State of Colorado, 8eglon 29.15.1ot, et. seq., Cobrado Revised Statutes, ae amended, ahd Secllon 10.2 of ha home rule chaser; and all other laws of the ' Slats of Colorado Ihoreunto enabling; and h le hereby cenllled and recited that all requirements of law have been Tully complied with try the proper ofllcere in issuing this Nole. Tha Nota ahaM be subject to rednmption prior to hs maturity, In whole, at the optbn of 1he'Town ('Optbnal Rederrrpllon'i on any Interval payment date, far ttts princpal amount of the Nee and aoawd finereel to the rademptlon date, ~~ k k hereby lusher certified, recited and MlartanMd that the total fndeMednees o! the ~Mlctuding that o! tMs Nde, does not any gorrgkiabnal or etarutnry Umltallon >l>ftttr! d Cobrado; that rho Town has e~ trill maintain. sales lazes M ItM ,, d .~ .,.J of and lntarest on _ i~~a Ihat this Nate was duly ahd 1 by an ordinance of rho Town a Mrs Town duly adapted and approved !y Mla 1MUarlOa hsre0l. d every rademptlon shall he gluon by ,_ Town by sending s cagy of such nolbe by ,f~kMred, csrtHbd or first•clasa, ppstage mall, naT more than 21 days nor less f4 days prior ro the redernpticn dale tv the R Catered Owner or the Nola wh bh is called for rademptlon at hie or her.addrese ao It last appears on the reglstratfon hooka kept by the Town, Fagure to glue such notice by mailing to the Registered gwner of the Note, or any dated therein, shall not affect the validity pf rho proceedings for the rodempHon of the Note, Notice having been given In the manner hereinbaforo provided, the Note shall become due and payable on the redernptlon dale so deafgnated; and upnn prespntatlon thereof at the Town,lha Tawn will pay the Noto. Prior to the dais fixed for redernpllon, funds sufllclent to pay the Notp and the accrued Inleraet to Iho rademptlon dale are ro be deposited with the Town. After the date,flxpd for such rademptlon, the giving of notice, and the deppsh or funds for redemption shall cause the dlsconllnuatlon of accrual pf interest on the Nola, The parson In whose same lire Note shall be registered, on the raglstratlon hooka kept by the . Town, shall ba deemed artd.regarded as the absnluis owner for the purpose al nakin^u payment and for nil other purposes; and' payment of or an account of abhor principal or Interest on rho Noto shall be made only to, or upon the written prder q1 Iho Reglelsred Owrter sh III egvalld and efleclualAtosdfsciargeha IIahlHly upon the Note to the extant of the sum or some so paid, Thfa Note le secured by a first davd pf trust on the prpperry, IN WITNESS WHEREOF, the Tawn of Vail, ~`. Colorado, has caused this Nofe to be executed in its name by the manual algnaturo of ifs Mayor, life Beal of the Tgwn to 6a afllxad hereto, and tasted t>y rhs manual afgnatura oT the Town lark. ' ' TOWN OF VAIL, COLORADO SECTION 8. That the Note, when executed ae provided 6t' law, shall ba delivered to the Purchaser and. the proceeds derived therelram shaft be u$$ed exclusively for the purposes afefad hareln.,Nellhef the Purchaser a1 the Note nor the ,owner o1 the Noto shall ba In any way reepons6fe for the appllCdticn of the proceeds of said Nola by the Town ar any of be Dithers, S2CTtON 7. That for the purpose of paying , the lntarest on the Note as the same shall become due, and providing !or the payment of prlnclpal 01 the Nate, there-has been levied by . the Town, the Tax Receipts-which shall be eufrldent to pay the principal of and Interest on the fgote, as the same become duo and payable, , respeglvaly,' Sak lax Receipts In the monthly amount of !<185,888.87 plus interest, as set out In Segion a hereof, when collected, shall ba hold by the Town In a special fund hereby created by !ha Town and described as the 1990 TAN Fund, but riplhing haraln cpntalned shall be 'so construed as to prevent the Town from applying any other `,' fundd shat may be In the treasury of the Town ;, and available for that purpose, to the payment of ,~ Interoet or prlnclpal, as the same respemively become due, Moneys In the 1960 TAN Fund ;~ shall be pledged tc and usetl solely }or the ~ purposes as set out above aq tang as any 5 payment Is duo on the Note, The 1690 TAN Fund j moneys may ba Invested in accordance with the laws p1 Cobrado far home ruts ckfes and towns, ~ and earnings from such Investments may ba ~ transferred to the general fund of the Tawn. Nothing haraln' Is Intended to require that the rnonles In the 1990 TAN Fund be segregated troth other funds for Investment purposes. SECTION 8, That nbtwhhstandfng the 1 1o6egoing sales tax luvlea, the Town Council 01 the Town covenants and egress to maintain and enforce ks present rates, lolls and tees, sufficlant to pay the prlnclpal p1 an interest on the Nato r herein authorized. Moneys In the 1990 TAX Fund shall be pledged to and used solely for the purpose of paying principal n1 and Interest on Iho Nate, sa long as any payment Is due an the Note. SECTION 9. Thal the Town covenants and agrees that It will, If required pt' taw, rebate to the Untied States o1 America excasa tnvealmant earnings as provided In Secllon 14B{I; 01 the Internal Revenue Coda of 1990, as amended, and regulatlone to be issued by [he Treasury Department, SECTION 10. Thal the Town agrees that It will comply with Sectbn 6.11 of Ile Home Rule Chaser end the extent applicable the Colorado Local Qovernmanl Audit Law, begin Secllon 29~ 1801, a< seq„ Colorado Revised 8tatutea, ae amended. 9ECT]ON 11. That the Town covenants and egreaa that It w111 make na use vi the prooaede M the Note authorized herein ar any other funds of Vail which might cause such obllgaticns to be arbitrage bonds within the moaning of the Internal Revenue Code of 1998, ae amended phe "Cade"E, and the flegulaNona proposed and In effect thereunder end under the Internal Revenue Code of 1654, ae amended. SECTION 12. That Vafi covename and agrees that h will take all aglone that may. be .;, required of h (Including, without Implied Ihrlltatbn, the Ilmely tiling of n federal Informatbn return with reaped to the Note) so that the , Inlsrosl on the note will be and remain excluded iwm gross income for federal Incarne purposes, , and will sat take any actions which would advoreefy affect ouch exclusbn. SGOTION 13, That the Town hereby designates the Note as a "qualMlad tax-exempt obligation' for purpose o1 paragraph ;3) of Barites 285(hf of the Codp and covenants that. Iho Note dose not oonstltutn a private adlvlty. bond as defined fn Secllon 141 or the Code and that not more Ihan ¢it),gg0,gtl0 aggregate prlnclpal amount o1 obllgadone the Imereel on which b axdudable under Sectbn 103(aJ of the Code from gross income for federal Incpma taxes (exeluding, however, private activity bonds, as defined In Secllon 1 41 01 the Coda other than qualified ti01{o) {S) bonds as dellnad In Secllon 146 of the Coder, including the Note, have been or shall be lesued by the Town, i including all subardlnate entltlea of the Tawn, ; during the calendar year 1890, SECTION 14, Trial the Mayor of the Town a1 Vail and the Tawn Clerk shall, and that' are hereby authorlxed and directed 1o take all necessary or appropriate action toward the execution and delWary of all the documents and such other agroarnents as may be necaeeary or deslroble to eNectuale the prgvlelona of this Ordinance and comply with the requlremente of the law Including a Ilret dead oT trust In a form approved by Bond Counsel and the town attorney securing the payment at.the Note. SECTION 16. Thar It any portion of ifils Ordinance shall for any reason be held to bo Invalid or unentoreeable, the Invelldity or unenlorcaahilhy cf arch portion or provision shed not attep any of the remaining provialons of thla Ordinance. the lnlentbn being that the same aro savarabk. SECTION 18, That oiler the Nate authorized haraln k lesued and sold and Is pulstanding, thla Ordinance shall be and remain frrepealable until the Note-and the Interest thereon shell be Tully paid, eatlelled and discharged. SRCTION 17. That prior to the dale a} the ~ adaptbn of this Ordinance, !hs Town has not adopted any ordlnanee or reaolutbn oonteinkne a provision Inoonalaten! with the provlalons of Ibis Ordinance. SECTION 18. By reason of the Tact that M k ~, necessary tc acquire the property as seen as possible in order to avotd any cost Increases In oonnecllon with purchasing the Properly through 'condemnation and take advantage o1 law Inleraet fares currently ex1611ng Iri the market, h Ia s hereby declared that this ordinance le '' Immediately necessary for the presarvatton of i, the publb peace, health and safely. Wherefore, Eitls Ordinance shall be in lull lorca and effect upon adoption et the spoclal rtreeting of the . "lawn Council on December 29, 1999, by an aRlrmallvo vote o1 five members oT the Town Gouncll. Tha Town Council hereby exempts this emergenuY ordinance ham roferandum pursuant 1sS Secllon 5.1(bl of the Town Charter. FINALLY ADOPTED ANA j1PPROVED AS AN EMERGENCY ORDINANCE this 29th day of December, 1999. TOWN OF VAfL Kant R. Rose Mayor ATTEST: Pamela A. Brandmeyer Tpwn Clerk Published In The VaIE Troll on January 12, 1990 ATTEST: Mayor ~ i ! Public No~c~' _~ , . pImINANCE No.29 : ' Aelifle a t~ . AN ORD;NAHCE AMENDING CE RTAFN '. BEGTEONB pF CHAPTER 16.22.90 THAT ' CHAPTER 1622 REQULATE9 BK1N3 rN THE -ARTERIAL. SUSINES9 Dl97RICT ZONE , DISTRICT OF THE TOWN OF VA1L (ABO) AS ' WELL A9 FHE COIYIMERCIAL GDRE Ili 7ANE PROOF OF PUBLICAnQN °' w ~ ` 9~',m.rolY~counn~latm.Tdwnar . Val1 wNhw Po provide alpn , ~,. ~. ': t for th/': STATE OF COLORADO) Ana+lal BueNaes zone aetrid. )) ~ NOW, 7HEREFORE, EE R ORDAINED EY THE TOWN COIfNCIL OFTHE TOWN OF YAIL, COUNTY OF EAGLE GaLDPACO: ~• - .: ~ ;' ; , .: 8ECT1ON1.~~~? ' I ALLEN KN4X do solemnly swear that t am Gad a fns T ~ eii ~ IRe~ u>And fro' read Slpn Grtegabe la CC3 Zale DNtrlq end '~ PU~~t.eheX ABF]ZanebWricb.'.:.; ; the __..-_~~.__~__. _ of THE VAIL TRAIL: that the same is a weekly Tfewspaper sECTioN2. printed, its whole ar In part and pubflshod In the County of Eagle, Stat© Of Colorado, aedbn 1e.n.dto d.elgRated N herWy and has a genorat clrcuiation therein; Thal said newspaper has been published amended la read as falowe: cnntlnuously and unintettuptadly !n sold County of Eagle for a period of more than 1622.otd fifty-two consecutive weeks next prior to the first pubilcation of ilia annexed Iee~~al A. Thte chaplar concerns !boas lypee pf notice ar advnrtisement; that said newspaper has bosh admNfed to the United permanent and tenparary signs requklnp a sign States malls as second class mailer under fhe provlslons of rho Act of March 3.1879, in all ~a~rrr»r;Y weni~in his and aeo zone ar any amendments thereof, and that said newspaper is a weekly newspaper duly dletrlde. This chaplar further Includes the goal€fied for publishing legal notices and advertlsamants within the mearnng of the Purpaaa d each sign type, eixe, fwlgn,, numbers laws Of the State Of Colorado, locdlon, design one landaceplnq regUlrerroms ,.and epecbl provlalorn for each type d elpn. That fhe onnoxod legal halite or advertisement was published In fhe regular and permll~$61-°~Ibwir~p N a Netlnp pr lye tafegmlpa u.~ 3 and ABD under the . provlelDlk d this fibs, . - enure issue of every number of said weakly newspaper for the period of .L11.E. 1. Bufldinq Idemnlmuwriip,,,,.,,;, ~_ ~ 3. ~ aey boxes; consecutive insettlolts; and that the first pubfientlon of sold notice was in the issuaof e, ~ ~~ ~ ~ban~nen~and I>tldky; , said newspaper dated ~~~ P-/n~~E~ ~ A.p. 19 ~. and that the last e, pfoJectina ennsd~ hanplnp alone, arcades;' 7. PrOJ9elfnp end hanplnp alone, IndWldual publicotlon/of sold notice was nIn the Issue of sold newspaper doted ~measeawilhrnam„rlr•tsnamhunding; ~r~C-U.~'_tC-~ 1.1 ~ /~D. 19 ~-7 e. YroJealnp and hanging ^Ipns, Jplat dlradpry signs 1m a muhHenant bultllnp; - 9. Blpn aoBreme; In wit ass whereof I have hereunto set my hand this /C ~ day of iz:rre~mbe~fra:q~n`~f°ro,p"`d,sra~pp~;o,tY; f 3. Wail alpha, Breads; - /Llc.eth c.f'. flD. 19 ~ n 1<. WNl alpm, IndWbuel btnlrl«ga wRIHn a U muhldenem bu1M1q; ~ -.. 16. Wall algna, igkgJtllrtetary alpm,fa a muhl-!sham building; - 18. WaN alone, akgN busYtese ua; ' ,~, •'.:::}. ~. 17. Window alone, ~. ,. .. _ C, A butfnaes w organFeadon wllhln CC3 arid/a ABD N l»mdnad the ftrllolMrg number d Subscribed and swam to faefore me, a rwtory bfic I nd tar f he- aunty of Eagle, +renrn~~ `~ paNi10fe a sash calegery 7, An Indivldud bualrraae wrfh a muflrmyd State of Colorado. #his i0 ~~ day of :, ,[_t.fh.[~ A.D, 19 G,~d bulklrnpmaraalraln.fdkavelp.grts: ,, , a. A dkplay hoer; - ~A ~ ~ ~{ ~ l~` ~ A ..,~ l/ b. A proJedlnp and hanplnp sign a s wa6• r~-f'r-Gt- JJ `~'07V Uy '" :~~raBbaordrd elptr .. ~.t,',}sea r ~ ;, ~' e~C 6 d.lMrdowalprr, ' , e. OIMr lerr'PMary arprw n . 1 fn dw ~. prwlabrls d drh Code; Nly commission expires ~l ~.~~ =~ '" ca3 ~~rnspp~^pf wnnm ^, Jornl elracrory eqn kr the -^ ^a:~ fL, rndMduq +ru.in.. ~:Atet~ l: ffi'lss1~I~ -; ~. Larxlion shall ire delermined by design' peCUpaht -Whhht t`LW1¢Inp~meY ;haul: Shs.~ review board, w11h a loner d epprrnal Irem the TOINwInp slptte: ~. ' term engineer far any sign daoad adladestt to a a A drspisy beta public etre6laway; :-':b.AWaN alpn aalnl slardfrg alpn; ,~;,:.., F. Design, eubjeci to the approvaF of the ~ .-',0.7ra6b 0ordro163QlNri }>t. rf ,;; ., , dealpn review board; t ~~<..O,.Wrndow elprM >~'`:_ O. Llghgnq, Indirect, at [he diaarelbn d the "a: a1Nf tertperary elplralr:W~fn1dN ; de~lggn review hoard: pnwYklrr d thNOoder`::.' ct.. ~.,~ H. Landscaping al the dlecrellon of the D. Fdbrrkq k1 Sed10d .16,22.020 >AraUOh~~ { design review !ward;:10.22.160 b.^ INtfnp by sign firPw d the 1.9 el provlelone shall be a+fohoxro: .NquksmanN Undarplb Seelkn,-'~ sew ~'~tr;t{ 1. MaY ba ellher free-atandIRg or well- .'~ ' gadbri 18,22.616"SuIWk£p idamlfidellpii' mounted, with earns else raquirementa: b tlrrrllnded ~ fMd 2. NO ind{ddual sign wiA be eprrroved unbar ~ ~ S ~~parapraph G,...x~~`,;.t.,:li~.u.~c.~-.:. ~-~~; k canfarrw 1o an overall sign program for 1ha ; ' 16,22AI6 ~uldlfg~kMltllf0lgbn 81-M. ' " • entire building, auti+rdned by the app£Irent; I b ' - 3. No sign ehNl oonlaln any adveRlefnq, but '- C: Hslphl; ova 1=mounted ;• ~ ulldlnp may 1deRlMytha owner by hones; _Idehtlhcati0nalpm: ~ !blot,:;.:., ,.,_•.:•Y:.> r a. H a'no parking' alpn tae rumlehod by the o» ' Ho peel d dN alert abet aalrrrd obese twBdy-'~ town! b used, there may be no ether elan for the ~• },.Rr9 t26} feat liven ntedOp Or+d! a dM. plW ilm name purpeea. ~ -,.olahuiWlrg. whbhaYMNk)a;. ~-.: ,. .' ' 9ECTIONq. t~~.tFrae1rta11dhgMllldlapMerd6kal}011arp111:~"+,~ 9sdbn 16.22.1 A0, paragraph E, shall bs J` Na pa0 d the sign ~ *~der t above elphrl ' amended as fpllowa: (6}test tram a>tN)SnB 6nit•r"~~~, ,~8~3"^;us~'". nfs* 16.22.£40 ~ ~. SECTpNa, ': .-,:. :.. .~ ~ ~ E. Lvcatlon, pararel to the erledar wag d lye e:' - Sadbn 16.22.100 91gn Program, pafe~prpil~; IndWidual bualnese or OrpaNkatNn. adJaCent to ~ ~'kit.khereby tlmettded tarede6 ldialra ~;:.t'1i ' the NoAh or South Frontage Ronde, subled m ,,16.22,100 Sign Prtgrsm': `-~ `'- , s ' the approval of the Design Rwbw Soard; ~ '~ ~ L 1: M tiro tlrr» drat any sign bn ^ bUlldlno } SEGTroN 16. ,. Iocslad whhln C.. Y Gde 1R a Anerla[: Secllon t6.22.1A0, paragraph HS3}: b hereby Suelnesa DNtrld N Talirpved, rdtanped a Iher/A amended to read ore folbws: b .,,y way. a aipn program 1/r that particular'. 16.22.140 bUlldlrtp N ~ttrwvraped M Nl submfdad to', H. 3. An IndWldual buslneea with no I~.TQa Ravltw B0af0 tle~aradl0ildarry ~~ calwlabfe lromape along the Nonh pr Sou[h ; i°. ~.r,.ir•,,,.~," :.,~:, Frenlage Roads. a whh a basemad u PoCpad noes ~pN~": - . -.' _ .. ,': !loci ednnce, may hays One ft} sign wah a ~ , ~~ t6.~.t00 ~~ `~~,' ~, b_ maalmUm area d flue (5} square teal Ina --1- localise approved by the Oeelgn Revbw BOare i. reed ore fa6oae::i',~i;.i,i~~~'1_~::~'1 -.'' . a deslpnatad In a rgwdllc sign program for iha r 7622.100 :. ~ " •~ ~ ~ "'^" -~! Wlldhep fn which doe hueNeas a aganlralkrn b ' whhlh C 'W a ABC Ma s bw Ulnasa ilaat~ip ', Wcalad. t which b nd IdJe06rIE to the'Nra1h or'SOU1h SECTION ti. f Franaq• Rtuds, but hen rabuN6la NdMage .. ~ - 9ectlan 18.22.160. patepreph E, h hereby ! which h bcatad ebnp arledesUlafl way e! the emended to read ea lolbws: - ~ /tM dl a txdkllnp ditrxstd q 6» Ildarkr d C(.N ~. 16.22.1x0 ' a ABO and hoe dhad aaoaa a dNpray area ''. E. LpcalNn, paralNl to iha salxla watt ~ ~ agnp that pdsetdan'way.:'tM ptdvl•Ians ' adJaceM 10tH North a South froMape Reacts '~ appllcaBla rhap be 1M nets ea hx 6 bwtlra', s to iha approves d Ms Design Review Nan>bp m n arcade eutrJad to 11Js approval d : B SECTION 12 n any Part sacllon. suheanbn, 'r tM Dalgn RWNw Baerd ~. M y~{:r: y,:., :,~ '.SECTION e.. ' eemenoe, clause m phrase d this Ordlna~we N I: -"S/GYfaP 162s2.1i10 i(IJ(tl) }~f1M.eby . ~, ~ . ' l-# for any reason held 1c Iro Ntvand, such decNWn ;.;p toed ee fd101Yar u 3 3 ', -r .:-5 shall not a9wi Iha valldny OI the remalnlRg .,: i16,xG,fpO .;. ,: ~'. ,'. dpi-;"..:.' '• "''r panronedlh4 Ordinance; and iha Town Ceuncll ~~"~ L4: b. Tl1N: NMt~ -..:,ti~s hereby declares h Weald have passed this ' `bualnegpa whh f e~aeertl b eetarbr v,r Ordinance, end each pan, section, subeectlort, r;'r}sg ~ ~ypa0~ glen 1M Noitli.; _, ' aeraenoa, daUSe a phresethered, repardlesa d I ~ ' the loci That any ono or mare parts, serdlOna, ~_ _ ~ ' ~'~ i~'r`~,~ ' erkaecelens, aantencae, dauaee or pkraaea be F~ `, T' ~~ declared InvalN. k BaC1~ m7~~1a I,~ A' (~~{kNx 9ECTIpN 73, Tha Town Gauncll hereby 5,,:;~, 18.22.110'f' 5 linda, determlaee and declares Ihat this .- --ti pprpose;' l0 Indlaau w ldenlNy • . Ordinance la necessary and proper for the i',`"r- d lay prepMty 1Rldaf edrwbilctia0 . heanh, safety errd wa6are d IM Tawn of Vwl k., k1 tTC3«A$0.yr' i,~: ; r and iha fnhabhanla lherdd. ~ ~ BEGTIbN 6::• ~•: ':^ y - ~d ' SEGTIpN 1A. The repeal w the repeal and ~ 9aclbn Id22,120 k.,~le[oby,: mlandsd 10,.r raenadneent of any prOVlelgl d the Munklpal ~ :.~ -.m: ,. ,~ - Code dthe T011e1 d Van ore provided In Ihls ~~ read es Jaflovrs, ~ ~. sr Ordinance ehdl not ailed any rlghl which has ~ ! 10.22.120 7rtl6o Cpdrdr $Ipm tot PIWab'' accrued, any duly Imposed, any viola;Ion Iha1 .~ P ~ ppnpq ebna}ar CCO aABD oboes b/ coursed prlcr fo iha etleclNe dale hereof, any ropulde6 0 ~~. 1, proaecuuon cb _... ', her any other antlan Or A. Purpdse. 't0 relfeva,: vahbular Ind prooaedlnpe ore commenced under or by virtue psdaeb;aa 1re6b cdnpNtbn and pratrote rho d the provfelnn repealed or wpeated and ' reenacted. The repeal d any Provlelon hereby safe end .. ,. :' . ~ flow and patkkp d haflb on shall nd revWe any prpvbfon a any ordlnanos ~ ~ ~'i1a p'otty' previously repealed or superseded unlen S. S1y0. as vahknllar !raffle Odnlyd aqa shell.i e><preealy staled herein. ~ nd exceed ono oquare tact aacspt muk4 r INTROpUCED, REA4 AND PA96ED ON '~. purpose done, whlah shNr nd saceed four ~; FIRST READING AND ORDERED PUBLi9HEO square fast. All pedeeirk0r baffb cadre! eight'' ONCE 1N fULL thk 7th day d November, 1679 any ~ aaoeed one equaro Idol. eacaq mu111- : aM a publk: haaHng ahdl be held do ibis ', '; purpose slgm, whkh shall nd saaead tour: drdlnance On the 7th day d November. 1989 d square real. stArtxd>o Mrs rpprmsr d the desbh 7:30 p.m fn the Council Chanters d the Yall ~ rwlew hood' Munlclpsl sanding, Vdl, Cokxado. C. FNrphL no per! d the alert ahaN ..tend'e ' tOIAM OF YAa ab04V eta NM iroPr e>1M1In0 grads; ' Kern R. p~ D. Number, lubisat b IIN ,approval 61 ihi' ~daalggn rwbw hood; PetrobTA. Bra MayOi 6. Lddellell shdr W ~dgNmined M' deslpn'~ Town Chrk ~ ~ ~~ rwbw board, whh a !octet d epprwd lrom Iha INTRObUCE4, READ 1Wb APPROVED ON J roam /nplneer 1df any ern pbwtl adiaosnt to a stECOHD READING ANO ORbEREO ptfigcatreefaway; PUBLISHEb ONCE IN FULL Ihh 6th day d ~ F. Dealgn, subject l0 1M epprovai d the C .. ~~, ,7p6p. ~ ~ deign review board; puhiehad In Tiro Vex Tres ~ O. Lfphtlnp, ladlrea, at the dhGdlOn q 11+a on '~ 6, ig66 ~ des n rwbw bt>ard; .. ' Landepaplnp a; thr dlaeratfdn d the dealpn mrlew boerg; f 9per3sl Orrwlelane shall ire as lnlrvva: