HomeMy WebLinkAbout1.01 Agreement for Vacation of Golf CourseAGREEMENT FOR VACATION OF GOLF
COURSE CORRIDOR EASEMENT
THIS AGREEMENT FOR VACATION OF GOLF COURSE CORRIDOR EASEMENT
(this "Agreement") is entered into as of July J, 2017, between, Gerd Zeller, whose address is
P.O. Box 37, Aspen, Colorado 81612 ("Zeller") and Aspen Glen Golf Club Management
Company, a Colorado corporation, whose address is 3030 LBJ Freeway, Suite 600, Dallas, Texas
75234 ("Golf Club"), wherein Zeller and Golf Club may sometimes be referred to jointly as "the
Parties" hereto.
RECITALS
A. Zeller is the owner of that certain real property in Garfield County, Colorado, as
more particularly described in Exhibit A attached hereto (the "Sages at Aspen Glen Property").
B. Golf Club is the owner of that certain real property in Garfield County, Colorado
adjacent to the Sages at Aspen Glen Property, upon which the 18 -hole golf course and related
facilities known as the "Aspen Glen Club" are located, as more particularly described in Exhibit
B attached hereto (the "Country Club Property"). Collectively, the Sages at Aspen Glen Property
and the Country Club Property will be referred to as the "Parcels."
C. Pursuant to that certain Fifteenth Supplemental Declaration to Master Declaration
of Covenants, Conditions, and Restrictions for Aspen Glen dated December 17, 2004 and recorded
on December 21, 2004 at Reception No. 665692 of the records of the Garfield County Clerk and
Recorder, the Sages at Aspen Glen Property was annexed to and made a part of the Aspen Glen
Golf Community Area.
D. Pursuant to that certain Declaration of Golf Course Corridor Easement dated
December 17, 2004 and recorded on December 21, 2004 at Reception No. 665693 of the records
of the Garfield County Clerk and Recorder (the "Declaration of Golf Course Corridor Easement"),
the Sages at Aspen Glen Property is subject to the terms and conditions of that certain Declaration
of Golf Facilities Development, Construction and Operational Easement dated April 5, 1995 and
recorded on April 6, 1995 in Book 936 at Page 314 as Reception No. 476327 (the "Golf Facilities
Easement").
E. Pursuant to the Declaration of Golf Course Corridor Easement and the Golf
Facilities Easement, certain portions of the Sages at Aspen Glen Property are subject to certain
Golf Course Corridor Easements.
F. Golf Club has agreed that it will vacate the Golf Course Corridor Easements
burdening the Sages at Aspen Glen Property, subject to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of Ten Dollars and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
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1. Vacation of Easement. Subject to the terms and conditions set forth below, upon
completion of construction of the new cart path, removal of the portions of the existing cart path
to be abandoned, and completion of all required restoration, to Golf Club's satisfaction, Golf Club
agrees that the Golf Course Corridor Easements burdening those certain portions of the Sages at
Aspen Glen Property, which are identified in the Declaration of Golf Course Corridor Easement
as Golf Course Corridor Easement 1— Sages, Golf Course Corridor Easement 2 — Sages, and Golf
Course Corridor Easement 3 — Sages (collectively, the "Golf Course Corridor Easements") shall
be released and vacated pursuant to the filing of the Notice of Completion in accordance with
Section 4 hereof.
2. Construction of Improvements. Zeller shall have the obligation at its own sole cost
and expense to construct a new cart path on the Country Club Property adjacent to the Sages at
Aspen Glen Parcel, according the schedule, location, and requirements established by the Golf
Club. Zeller agrees to make all improvements on a schedule specifically approved in writing in
advance by the Golf Club so as to minimize interference with golfing activities and maintain golf
cart access through the construction area at all times. Golf Club agrees to provide the location and
requirements of the relocated path to Zeller within thirty (30) days of written notice by Zeller of
Zeller's intent to commence relocation improvements. Zeller is responsible, at its sole cost and
expense, to have the plans and specifications for the cart path relocation prepared, and to obtain
all applicable approvals. All improvements upon or to the Country Club Property shall be
constructed in accordance with the then -current laws, rules and regulations of the Aspen Glen PUD
and Garfield County. Upon completion of the new cart path by Zeller and acceptance of same by
Golf Club, Zeller shall be required to remove the portions of the old cart path being abandoned
and restore all affected portions of the Country Club Property to the condition existing immediately
prior to the construction activity. Zeller's obligation to restore shall include, but not limited to, the
repair, restoration and/or replacement of grade, roads, rights of way, cart paths, irrigation
equipment, signage, utilities, fences, gates, golf course improvements such as tee boxes, bunkers,
fairways, and greens, ground cover, trees, shrubs and other plantings. Any damage to turf areas
of the golf course shall be repaired using sod of the same type as the grass damaged. If Zeller fails
to make such repairs within five (5) days of written notice from Golf Club, Golf Club may make
repairs without further notice to Zeller and Zeller will be liable for the full cost of such work
performed, such amount to be paid by Zeller within thirty (30) days after invoicing by Golf Club.
All work, including restoration, must be performed by Zeller in an expeditious and diligent manner
once the same is initiated, and must be completed within thirty (30) days of commencement.
3. General Re -alignment Path. The cart path shall be realigned after the green of the
second hole of the golf course. The cart path crossing of Golden Bear Drive may be relocated,
subject to safety considerations and all applicable laws. The cart path shall remain on the same
side of the third hole of the golf course as currently located, but those segments of the cart path
currently located within the Golf Course Corridor Easements shall be moved to the Country Club
Property. After relocation, no portions of the cart path shall be located on the Sages at Aspen Glen
Parcel. The re -located path shall not cross between or in front of any tee boxes. The precise
location of the re -located path shall be subject to the direction and approval of the Golf Club. The
final location shall be flagged and agreed to by the Parties after the Sages at Aspen Glen Parcel
boundary is surveyed and staked. Even after the location has been agreed to, up until construction
of the new cart commences, the actual location may be adjusted by the Golf Club.
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4. Notice of Completion. Schmueser, Gordon and Meyer, Engineers shall have the
responsibility to submit for recording a written Notice of Completion, certifying that Zeller has
completed all of the work necessary for the relocation of the golf cart path along the third hole of
play, including removal of the portions of the existing cart path to be abandoned and all restoration
work, all in accordance with the direction and approval of the Golf Club. At the time of the
recording of said Notice of Completion, the Golf Course Corridor Easements granted pursuant to
the Declaration of Golf Course Corridor Easement shall be released and vacated. As a condition
precedent to recording the Notice of Completion, Gordon and Meyer, Engineers shall obtain the
acknowledgment of Golf Club, as evidenced by signature of a corporate officer of Golf Club, that
all work related to the cart path relocation including restoration has been completed to Golf Club's
satisfaction.
5. Insurance. Zeller agrees that it and any of its agents and contractors performing
construction and restoration work under this Agreement shall be responsible for their acts and
omissions and will be required to maintain at all times during which work is performed, and upon
request to provide evidence of, insurance coverage which meets or exceeds the following insurance
requirements (unless higher limits are required by law, in which case the higher limit shall be
required):
a. Commercial general liability insurance with a minimum policy limit of
$1,000,000 per occurrence and $2,000,000 in the aggregate for bodily injury and property
damage; and
b. Commercial automobile liability insurance covering liability arising from
the use or operation of any vehicle owned, hired or otherwise operated or used by or on
behalf of Zeller with a minimum policy limit of $1,000,000 combined bodily injury and
property damage liability per accident; and
c. Worker's compensation as required by Colorado law, and employers' lia-
bility insurance with a minimum policy limit of $500,000 per accident for bodily injury by
accident or disease.
d. Excess/umbrella liability coverage of at least $2,000,000 each occurrence
and annual aggregate.
Golf Club shall be named as an additional insured on all liability policies save and except workers'
compensation.
6. Indemnification. Zeller hereby agrees that it shall indemnify, defend and hold
harmless Golf Club and Golf Club's officers, directors, members, managers, partners, sharehold-
ers, employees, agents, tenants, contractors and any affiliates or subsidiaries of the foregoing (each
individually a "Golf Club Party" and collectively referred to as, "Golf Club Parties") from and
against any and all expenses, suits, actions, judgments or claims brought or made on account of
any injuries or damages received or sustained by any person or persons or property, arising out of,
occasioned by or in connection with the realignment and/or construction of the relocated portions
of the cart path. In addition to and not in limitation of the immediately preceding sentence, Zeller,
for and on behalf of Zeller and Zeller's successors and assigns, does hereby irrevocably release,
acquit, and forever discharge Golf Club and the Golf Club Parties of and from any and all liabili-
ties, claims, demands, damages, causes of action, expenses, costs, attorneys' fees and compensa-
tions of whatsoever kind resulting from the flight of golf balls.
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7. No Liens. If any lien is filed or otherwise imposed on any part of the Country Club
Property in connection with or arising out of Zeller's work pursuant to this Agreement, Zeller shall
(i) use its best efforts to cause such lien to be released, discharged or otherwise settled so as not to
encumber any portion of the Country Club Property within ten (10) days after filing; (ii) cooperate
with Golf Club in any action to remove such lien; and (iii) indemnify, defend and hold Golf Club
harmless from any such lien.
8. Notice. Any notices or other communications required or permitted hereunder shall
be sufficiently given if in writing and (i) hand delivered, or (ii) sent by nationally recognized over-
night delivery service, or (iii) sent by certified mail, return receipt requested, postage prepaid,
addressed as shown below, or to such other address as the party concerned may substitute by writ-
ten notice to the other. All notices hand delivered shall be deemed received on the date of delivery.
All notices forwarded by overnight delivery service or certified mail shall be deemed received on
a date three days (excluding Sundays and holidays) immediately following the date of deposit with
such overnight delivery service or in the U.S. mail; provided, however, the delivery receipt indi-
cating the date upon which a notice was received shall be prima facie evidence that such notice
was received on the date indicated on the delivery receipt.
If to Golf Club:
Aspen Glen Golf Club
0545 Bald Eagle Way
Carbondale, Colorado 81623
Attention: General Manager
With a copy to:
Aspen Glen Golf Club Management Company
3030 LBJ Freeway, Suite 600
Dallas, Texas 75234
Attention: General Counsel
If to Zeller:
Gerd Zeller
P.O. Box 37
Aspen, Colorado 81612
The addresses and addressees may be changed by giving notice of such change in the manner
provided herein for giving notice. Unless and until such written notice is received, the last address
and addressee given shall be deemed to continue in effect for all purposes. No notice to either
party hereto shall be deemed given or received unless the entity noted "With a copy to" is simul-
taneously delivered notice in the same manner as any notice given to either party hereto.
9. Enforcement. This Agreement may be enforced by any proceedings at law or in
equity against any person or entity violating or attempting to violate any part of the Agreement
either to restrain or enjoin violations or to recover damages. Damages shall not be deemed ade-
quate compensation for any breach or violation of any provision hereof, and the enforcing party
shall be entitled to relief by way of injunction as well as any other remedy either at law or in equity.
The rights, powers and remedies provided herein shall be cumulative and not restrictive of other
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remedies at law or in equity, and the exercise of any particular right, power or remedy shall not be
deemed an election of remedies or to preclude resort to other rights, powers or remedies. No delay
or failure to invoke any available right, power or remedy in respect to a breach of this Agreement
shall be held to be a waiver of (or estop a party from asserting) any right, power or remedy available
upon the recurrence or continuance of said breach or the occurrence of a different breach. The
obligations of Zeller set forth herein shall survive any termination of this Agreement and/or the
Golf Course Corridor Easements.
10. Attorney's Fees. In the event that any action or proceeding is commenced between
the parties upon a claim arising out of or relating to the terms of this Agreement, or where any
provision of this Agreement is validly asserted as a defense, the prevailing party in such action or
proceeding shall be entitled to an award against the non -prevailing party of its reasonable
attorney's fees, costs and disbursements incurred therein, including, without limitation, the fees,
costs and disbursements associated with any appeal of such action or proceeding, in addition to
any other available remedy. Such amounts shall be awarded as costs of the action or proceeding,
without the necessity of any party making a claim or counterclaim therefor.
11. Full Force and Effect. The Golf Course Corridor Easements granted pursuant to the
Declaration of Golf Course Corridor Easement shall be released and vacated upon the recording
of the Notice of Completion in accordance with Section 4 hereof; however, the Parties
acknowledge and agree that the Declaration of Golf Course Corridor Easement, and all other
easements, restrictions and obligations contained therein, shall remain in full force and effect even
after the recording of the Notice of Completion. In addition, the Sages at Aspen Glen Property
remains subject to all other easements, restrictions and encumbrances created by the Golf Facilities
Easement, including, but not limited to, the Golf Course Play Easement burdening the Sages at
Aspen Glen Parcel for the benefit of the Country Club Property and the Club Users pursuant to
Section 8 thereof and the release set forth in Section 9 thereof.
12. Execution 13y Zeller. Zeller joins in the execution of this Agreement to evidence
its agreement to the exceptions, reservations, restrictions, conditions and provisions hereinabove
set out, or that shall be binding upon Zeller, its successor and assigns.
13. Recording. This Agreement shall be recorded in the records of the Garfield County
Clerk and Recorder.
14. Entire Agreement. This Agreement, including the exhibits attached hereto, contains
the entire agreement relating to the subject matter hereof between the Parties hereto. Oral
representations or modifications concerning the subject matter of this Agreement shall be of no
force and effect. This Agreement may be amended only by a written instrument signed by the
Parties.
15. Counterparts. This Agreement may be executed in counterparts, each of which
shall constitute an original, and which together shall constitute one and the same agreement.
(Remainder of the Page Intentionally Ler Blank)
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IN WITNESS WHEREOF, the Parties have e -cut-d t • greement as of the date first
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set forth above.
Gerd Zel
Aspen Glen Golf Club Management CrW
Colorado corporation
By:
Printed Name:
Title:
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
set forth above.
Gerd Zeller
Aspen Glen Golf Club Management Company, a
Colorado corporation
By:
Printed N
Title:
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ACKNOWLEDGMENTS
STATE OF COLORADO
COUNTY OF Gr i e t d
BEFORE ME, the undersigned authority, on this day personally appeared Gerd Zeller,
known to me to be the person whose name is subscribed to the foregoing instillment and
acknowledged to me that he executed the same for the purposes and consideration therein ex-
pressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this
JEANNE HAVES
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID U 20104044492
MY COMMISSION PIR • S OCTOBER 19 2018
STATE OF TEXAS §
COUNTY OF DALLAS §
day of July, 2017.
Notar - Public, State of Colorado
My Conunission Expires: 0' ! ' LO1g
BEFORE ME, the undersigned authority, on this day personally appeared
of Aspen Glen Golf Club Management Company, a
Colorado corporation, known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that (s)he executed the same for the purposes and
consideration therein expressed, as the act and deed of said limited liability company, and in the •
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of July, 2017.
Notary Public, State of Texas
My Commission Expires:
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STATE OF COLORADO
COUNTY OF
ACKNOWLEDGMENTS
BEFORE ME, the undersigned authority, on this day personally appeared Gerd Zeller,
known to me to be the person whose name is subscribed to the foregoing instrument and acknowl-
edged to me that he executed the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of July, 2017.
Notary Public, State of Colorado
My Commission Expires:
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, on this day personally appeared Ingrid Keiser,
Secretary of Aspen Glen Golf Club Management Company, a Colorado corporation, known to me
to be the person and officer whose name is subscribed to the foregoing instrument and acknowl-
edged to me that she executed the same for the purposes and consideration therein expressed, as
the act and deed of said limited liability company, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL 0F 9E -ECCE this the /'r day of July, 2017.
REBECCA L WIWAMSON
Notary Public State of Texas
My Commission # 8280415
My Comm. Exp. June 23, 2428
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Notary Public, State of Texas /
My Commission Expires: ,./.234-6
EXHIBIT A
Sages at Aspen Glen Property Descriptio`
A tract of hand situate In Section 13, Township 7 South, Range 89 West of the 6th Principal Meridian, County of Gar
particularly described as follows:
Beginning at a point on the easterly right of way Ilene of County Road 109 and the westerly line of 2nd Amended Piot
Fling No, 1, County of Garfield. State of Colorado whence the W1/4 Cotner of Section 20, Township 7 South, Range 8
bears 55723'01'£ o distonce of 5194.26 feet; thence along the west line of said Golf Course Parcel 9 the following sr
of 87.38 feet; thence 529'23'03'E a distance of 308.37 feet; thence 57111'52'£ a distance of 10.61 feet; thence, S2
thence 553'16'43"E a distance of 36.29 feet; thence, 51414'35"E o distance of 84.79 feet to the north right of woy kr ✓ a`Jove as show, on
the Plot of Aspen Glen, Piing No. 6 as recorded at Reception No. 531004, County of Garfield, State of Colorado; thencr; arig sold north right of woy line
the following six (6) courser. 45,51 feet along the arc of a 814.50 feet radius non—tangent curve to the left, huving a centre' angle of 312'05" and
subtending a chord hearing S7512'33"W distonce of 45.50 feet thence 29.03 feet along the ire of a 199.75 feet radius curve to the right, honing a
central angle of 8'19'39" and subtending a chord bearing 578"06'20"W o diskette of 29.01 feet; thence, 93216'09.41 o astance of 45.30 feel; thence 61.73
tent (Jong the arc of a 200.25 teat radius curve to the left, having a central angle of 1739'47" and subtending a chord hearing S73'26'16'W u distance of
61.49 feet; thence 55.09 feet along the arc of 833.67 feet radius curve to the left, having a central angle of 3'47'11' and subtending a chord bearing
56242'47"W a distance of 55.08 feet; thence 38.40 feet (Ilona the arc of a 47.50 feet radius Canna to the tight, having a central endue of 4819'11 and
subtending a chord bearing S83'58'50"W a distance of 37.36 feet to the east right of woy line of county rood 109; thence along said east right of way line
the following four (4) courses: 1129'0215"W a distance of 166.98 feet; thence 82011'20'W u distance of 11.95 feet; thence 545.79 teat along the arc of a
1635.67 feet radius non—tangent curve to the right, having o central angle al 19'07'06" and subtending a chord bearing N16'06'57'W a distance of 543.26
feet; thence, NO6'33'24'W u distance of 135.34 feet to the point of beginning, said tract contains 184,848 sq.ft. or 4,244 acres mote or less.
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EXHIBIT B
Legal Description of Golf Club Property
Parcel 1:
Golf Course Parcels 1 and 2
Amended Plat Golf Course Parcels 1 and 2,
Aspen Glen Filing 1,
According to the plat recorded April 23, 1997 as Reception No. 507378.
Parcel 2:
Golf Course Parcel 3
Amended Plat of Golf Course Parcel 3,
Aspen Glen, Filing 1,
According to the plat recorded April 23, 1997 as Reception No. 507372.
Parcel 3:
Golf Course Parcel 4
Amended Plat of Golf Course Parcel 4 and Open Space,
Aspen Glen, Filing No. 1,
According to the plat recorded April 23, 1997 as Reception No. 507373.
Parcel 4:
Golf Course Parcel 5
2nd Amended Plat Golf Course Parcel 5,
Aspen Glen Filing 1,
According to the plat recorded November 26, 1997 as Reception No. 516971.
Parcel 5:
Golf Course Parcels 6 and 7,
Amended Plat Golf Course Parcels 6 and 7,
Aspen Glen, Filing No. 1,
According to the plat recorded April 23, 1997 as Reception No. 507376.
Parcel 6:
Golf Course Parcel 8,
Amended Plat Golf Course Parcel 8,
Aspen Glen Filing 1,
According to the plat recorded April 23, 1997 as Reception No. 507374.
Parcel 7:
Golf Course Parcel 9
2nd Amended Plat of Golf Course Parcel 9,
Aspen Glen, Filing No. 1,
According to the plat recorded December 7, 2004 as Reception No. 664580.
Parcel 8:
Golf Course Parcel 10
Amended Plat Golf Course Parcel 10 and Open Space,
Aspen Glen Filing 1,
According to the plat recorded April 23, 1997 as Reception No. 507377.
Parcel 9:
Golf Clubhouse Parcel
Final Plat, Aspen Glen Golf Clubhouse and Clublodge,
According to the plat recorded November 19, 1999 as Reception No. 555595.
Less and Except from any of the above parcels, that certain parcel of land conveyed from Aspen Glen
Golf Club Management Company, a Colorado corporation to Aspen Glen Golf Company, a Colorado limited
partnership, as more fully set forth in Quitclaims Deed recorded December 21, 2004 in Book 1649 at Page
882 as Reception No. 665687.
County of Garfield
State of Colorado
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