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HomeMy WebLinkAbout4.0 Lease• LEASE • THIS INDENTURE is made and entered into as of January 1, 1978 by and between WESTBANK RANCH NO. 1, LTD. a Limited Partnership, Lessor, and WESTBANK RANCH HOMEOWNERS ASSOCIATION, a Colorado corporation not for profit, Lessee, WITNESSETH: In consideration of the payment of the rent and the keeping and performance of the covenants and agreements by the Lessee hereinafter set forth, Lessor hereby leases unto Lessee that certain parcel of real property located in Garfield County, Colorado and generally known as "Westbank Golf Course", which is adjacent to the Westbank Ranch Sub- division as shown in the various filings thereof in the office of the Clerk and Recorder of Garfield County, Colorado. The real property leased hereunder includes all improvements located thereon save and except for all wells, pumps, pipelines, pumphouses, equipment, and appurtenances to or in anywise used in connection with the domestic water distribution facilities for Westbank Ranch Subdivision, together with all changes therein, replacements thereof, and additions thereto which hereafter may occur. Said real property and improvements are hereinafter sometimes referred to as "demised premises". Said property includes certain "greenbelt" or "open space" area, and the demised premises are outlined in green ink on sketch plat attached hereto and made a Part hereof by this reference. Lessor also hereby leases unto Lessee the personal property in its present condition listed on Exhibit A attached hereto and incorporated herein by this reference. The terms and conditions of the within Lease are, and the parties hereby mutually covenant and agree, as follows: 1. ENCUMBRANCES. The lease is subject to: (a) A perpetual easement for the use, maintenance, replacement and addition of all water distribution facilities which are used now or in the future for the domestic water distribution syste:- for Westbank Ranch Subdivision. The right to drill new or replacement wells for such water system. (b) Pedestrian and service and maintenance vehicle easement depicted on the attached plat as MNA1 (c) Deed of Trust to the Public Trustee of Garfield County, Colorado recorded in Book 446 at Page 72 of the records of said county, securing repayment of a certain obligation to The Bank of Glenwood which Lessor agrees to pay. (d) All existing easements and rights of way in anywise affecting the demised premises. (e) Zoning, building, subdivision and other governmental laws, ordinances, rules and regulations; U. S. patent reservations and exceptions; prior reservations or exceptions of oil, cas and other minerals. Exhibit K 1 • • 2. TERM. The term of this lease shall commence on January 1, 1978 and expire on January 1, 1983, provided, however, lessee shall have the option to renew the within lease upon the terms and conditions as herein set forth for an additional period of five (5) years upon written notice thereof being delivered to Lessor no earlier than October 1, 1982 and no later than November 1, 1982. 3. RENTAL. Rental for each year of the primary term and of any extension hereof shall be the sum of $1.00 and on July 15th of each year thereafter. 4. COVENANTS OF LESSEE. In addition to the payment of the rent as above provided, Lessee covenants and agrees as follows: (a) To fully and completely operate the premises as a daily fee golf course open to use by the general public, and in that connection to provide: due on July 15, 1978 i. Golfing facilities seven (7) days per week during that period of the year when golf play is practicable, inclement weather, golf tournaments, and matters beyond the control of Lessee excluded. ii. Golf instruction. iii. Golf club cleaning, repairs and storage. iv. Golf club rental. v. Golf cart rental, including pull carts and at least five mechanized riding carts. vi. Sale of golf clubs, balls, clothes and miscellaneous and related items. vii. Restaurant and bar facilities with minimum food availability as shall be required by the Department of Revenue, Spirituous Liquor Division, State of Colorado. (b) To employ PGA golf professional who shall be the full- time resident professional in charge of the golf course and shop, and who shall undertake and competently perform under direction of Lessee such other supervision, Maintenance and management duties as are prescribed by written employment agreement. In this respect, the parties acknowledge the existence and effect of Employment Contract dated October 30, 1977, as amended by Amendment to Employment Contract dated March 13, 1978 between Lessor as "Owner" and Dan Sommers as "Employee", copies of which are annexed hereto as Exhibit B and made part hereof. Lessor hereby assigns such Contract as amended to Lessee, and Lessee hereby accepts such assignment and assumes and agrees to perform and keep all of the promises, covenants, duties, and obligations therein contained to be kept and performed by the "Owner" and to hold Lessor harmless from and indemnify Lessor against all claims and liabilities made by virtue of such Contract, as amended. (c) To water, mow, maintain, repair, keep clean and orderly, and otherwise care for the demised premises. (d) To keep a improvements upon the de sed premises in good repair and operating order and condition, and at the expiration of this lease to surrender and deliver up said premises in as good order and condition as when entered upon, loss by fire, inevitable accident or ordinary wear and tear excepted. (e) To neither permit nor suffer any disorderly conduct, noise or nuisance about the demised premises having a tendency to annoy or disturb any persons occupying adjacent premises. (f) To collect all fees for the sole use, credit and benefit of Lessee from persons utilizing the demised premises, including membership fees, season passes and daily green fees. Lessee warrants that all such fees shall be applied toward the employment of necessary personnel, and for maintenance, operation, or repair of, or construction of improvements to, the demised premises. Lessee shall collect no such fees from Mr. and Mrs. John Huebinger, Jr., for life, and their children (until such children reach the age of 21 years); or from any other two husband -wife couples whom Lessor has the right to designate in writing to Lessee at any time during the existence of this LEASE, all of such persons except as noted otherwise being entitled to lifetime exemptions from such fees; and Lessee expressly accepts this LEASE subject to such exemptions. These two husband -wife couples are limited to Mr. and Mrs. John Powers and Mr. and Mrs. Harold Gambrel. (g) To establish annually all membership fees, season pass rates and daily fee rates, and other appropriate or necessary charges for the use of the demised premises. (h) To allow the use of privately owned mechanized riding carts at such fees as the Lessee may establish. (i) To pay all costs and expenses required in the performance of the duties imposed upon and the covenants to be kept by Lessee as provided in this LEASE, including but not necessarily limited to maintenance, labor, new equipment, replacement equipment, equipment and machinery repairs, supplies, and utility costs. Lessee shall purchase and maintain fire, lightning and extended coverage insurance on the improvements in the minimum sum of $100,000.00, and public liability and property damage insurance in the following amounts: $500,000.00 bodily injury per occurrence and aggregate, and $100,000.00 property damage per occurrence and aggregate. Lessor, its general managing partner, and all of its limited partners shall be named as insured parties in such policies, and copies thereof shall be furnished to Lessor. 5. REAL PROPERTY TAXES; TAX EXEMPTION; LESSOR'S CONTRIBUTION; PERSONAL PROPERTY TAXES: The parties acknowledge that the demised premises are presently subject to the payment of general ad valorem real property taxes to the Treasurer of Garfield County, Colorado. The parties covenant and agree that it is desirable and economically beneficial to them both that the demised premises be accorded exempt status from the levy and assessment of ad valorem general real property taxes; and it is a material part of each party's consideration for entering into this LEASE that every effort be made by the Lessee, with Lessor's full cooperation, to obtain such tax exempt status effective as of January 1, 1978 and to maintain such tax exempt status throughout the term, and any extensions, of this LEASE. Lessor agrees to pay the general ad valorem real property taxes for 1977, due and payable January 1, 1978, on the demised premises and on any personal property located thereon, and covenants that all tax liabilities on such property for any prior years have been paid in full. -3- 411 110 With respect to general ad valorem real property taxes for 1978 on demised premises, due and payable January 1, 1979, Lessee agrees to apply before the proper governmental authorities for the exemption of the demised premises from the levy, assessment and collection of such taxes. Lessee shall promptly make such application upon the signing of this LEASE and the gathering and preparation of all necessary supporting information. In the event Lessee has not obtained from the proper governmental authorities by May 1, 1978 written evidence that such exemption has been granted, and if by said date Lessee has not furnished Lessor a copy of such written evidence, then Lessee may cancel and terminate this LEASE, without further liability, by giving Lessor written notice of such cancellation and termination which, to be effective, Lessor must receive by no later than midnight of May 1, 1978. Failure to give Lessor by said date and time such written notice of cancellation shall be deemed a waiver and forfeiture of Lessee's right to so cancel; and Lessee shall be liable and responsible for, and shall pay before they become delinquent, any and all general ad valorem real property taxes for 1978, or for any portion of 1978, on the demised premises. In the event such exemption application for 1978 taxes is denied in whole or in part but this LEASE is not cancelled as provided in this paragraph, Lessee shall make every effort to obtain tax exempt status as soon as possible for the demised premises. Unless this LEASE is cancelled by Lessee as provided in the immediately preceding paragraph, Lessor shall contribute to Lessee an amount of $5,000.00 to be applied toward the operation of the demised premises, payable without interest in equal monthly installments of $1,000.00 each commencing June 1, 1978 and on the first day of each month thereafter until paid in full. If this LEASE is cancelled by Lessee as provided in the immediately preceding paragraph, then Lessor shall con- tribute nothing to Lessee as required by this paragraph, such obligation being deemed cancelled along with all other provisions of this LEASE. If the tax exemption from general ad valorem real property taxes is obtained for 1978, Lessee agrees to exercise its best efforts to maintain such exemption status for demised premises for all years after 1978 for which this LEASE is in effect. Whether or not such tax exemption is obtained for 1973 taxes, as between Lessor and Lessee it shall be presumed that such exemption status is in effect for future tax years after 1978 unless Lessee shall have notified Lessor by a writing received -4- • by Lessor no earlier than January 2 of 1979 and no later than March 1 of 1979, and between January 2 and March 1 on each successive year thereafter during the term hereof, that Lessee desires to terminate this LEASE because such tax exempt status is not in effect. If Lessor timely receives such written notification, the Lessee is released from this LEASE without further liability except for payment of any such taxes which shall have already become due and payable, which continue to be Lessee's responsibility regardless of any termination. Failure to give Lessor between said dates such written notice of cancellation shall be deemed a waiver and forfeiture of Lessee's right to so cancel this LEASE for the year in question; and Lessee shall be liable and responsible for any and all general ad valorem real property taxes for the year in question and Lessee shall pay such taxes before they become delinquent. Lessee's covenants in this paragraph shall survive any termination or cancellation of this LEASE, regardless of how effected. With respect to any personal property taxes which may be levied and assessed against the personal property described on EXHIBIT A for 1978, due and payable January 1,1979,and for subsequent years, Lessee shall EITHER pay said taxes and upon payment furnish Lessor with written evidence thereof OR obtain the exemption of such property from payment of such taxes and furnish Lessor with written evidence of such exemption. In no event shall the levy and assessment of such taxes, or the payment thereof by Lessee, entitle Lessee to any right to terminate or cancel this LEASE, or entitle Lessee to any reimbursement claims as against Lessor based on Lessee's payment thereof. Lessee shall save and hold Lessor harmless from, and indemnify Lessor against, any claims and liabilities arising from such personal property taxes. 6. CAPITAL IMPROVEMENTS. Except with respect to ditch and water right improvements which are covered in section 7. below, either party shall have the right to make such capital improvements to the demised premises in addition to those already upon and part of the demised premises, as shall be mutually agreed upon, it being understood that keeping the demised premises at a high standard of quality is imperative. Lessee shall maintain any such additional improvements agreed upon, as required by paragraph 4(d) above. • • 7. WATER RIGHTS. (a) Lessor owns water and ditch rights in the Robertson Ditch, ditch no. 47, which furnishes water necessary to irrigate the golf course and to supply the ponds located on the demised premises. As part of the consideration for this LEASE, Lessor is leasing and does hereby lease such ditch and water rights to Lessee except for such as are reserved in paragraph 7(d) below. Lessee agrees to use such ditch and water rights consistent with the uses employed by Lessor for the past few years in connection with and upon the demised premises, and as permitted and required by Court decrees and Colorado law governing such water and water rights including but not necessarily limited to the Ruling of Referee made the Judgment and Decree of the Water Court on April 26, 1976 in Water Division No. 5, Case No. W-2516, a copy of which is annexed hereto as Exhibit C and made a part hereof by reference. Lessee further agrees to inspect, clean, maintain, repair, and keep in good operational order such ditch, the headgate and diversion works, and all other appurtenant structures thereon, or a part thereof, as any of the same are now or may hereafter be constructed or installed, to the same extent as if Lessor were the owner of such water and ditch rights PROVIDED THAT all obligations and agreements of Lessor for the 1978 irrigation season as set forth in paragraphs 1., 2., 3., 4., 5., 6 and 7. of the copy of letter agreement dated January 20, 1978 and annexed hereto as Exhibit D, shall be kept, fulfilled and performed by Lessor and at Lessor's expense except that Lessee shall contribute to Lessor up to the sum of $1,000.00 to help defray the expense, as such expense is incurred, of Lessor complying with all the terms and conditions of Lessor as set forth in said Exhibit D. Before Lessee is bound by the terms and conditions of any written agree- ments Lessor may hereafter enter into with other ditch owners concerning maintenance and cleaning of the Robertson Ditch for any years after 1978, Lessee must expressly approve in writing and become a signature party to such agreement. (b) In connection with Exhibit D, the parties acknowledge that the U.S.D.A. Soil Conservation Service has undertaken and is pre- paring a feasibility study and cost estimate of constructing certain permanent improvements to the Robertson Ditch, in behalf of Lessor and the other owners of ditch and water rights in said ditch. The parties hereto agree that in the event Lessor and such other ditch owners subsequently agree to implement a plan for permanent improve- ments then Lessor shall be responsible for carrying out Lessor's agreements thereunder with respect to such permanent improvements and Lessor shall pay 2/3 of Lessor's total share of the cost thereof and Lessee shall pay 1/3 of Lessor's total share of the cost thereof. Lessee consents and agrees that Lessor may enter into any such agreement with the other ditch owners concerning permanent capital improvements, but only with Lessee's express written consent. (c) Lessee has the right and duty to make whatever additional or other capital improvements are necessary or advisable to the ditch, headgate and all appurtenances, during the term of this LEASE, at Lessee's sole cost and expense, but only after receiving Lessor's express permission therefor in advance. (d) Lessor reserves from this Lease the minimum amount of ditch, water, and ditch and water rights adjudicated to the Robert- son Ditch as becomes necessary to Lessor to the maintenance of domestic water service, including home lawns and gardens, in the Westbank Ranch Subdivision, as the same is now subdivided and platted, or for any of the real property now owned by Westbank Ranch No. 1, Ltd. in Garfield County, Colorado, or for both of such properties or for any portions of such properties or any combination of such properties; PROVIDED THAT this reservation shall never be interpreted or construed to deny Lessee the minimum amount of water absolutely necessary to irrigate the golf course and to supply the ponds located on the demised premises. Commencing with calendar year 1979, upon presentation of an itemized statement from Lessee, Lessor agrees to pay a share of the Lessee's annual costs of inspection, maintenance, cleaning, repairing, and keeping in good operational order such ditch, the headgate and diversion works, and all appurtenances thereto, equal to the proportional amount of water so reserved from time to time by Lessor. -6- • • 8. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS. In the event any improvements become damaged or untenantable by reason of fire or other act of God, all insurance proceeds collected upon such loss shall be forthwith applied toward reconstruction or repair of such improvements, and reconstruction or repairs shall be completed no later than one year from date of damage. This LEASE shall remain in full force and effect during the period of such reconstruction or repair. 9. VACATING PREMISES. In case the demised premises or any part thereof is left vacant, or if any part of the rent herein reserved be unpaid, then the Lessor may, without in anywise being obliged so to do and without terminating this lease, retake possession of said premises and rent the same for such rent and upon such conditions as the Lessor may think best. Lessee shall be liable for the balance of the rent herein reserved until the expiration of the term of this lease, and for any damages sustained by the demised premises or by the Lessor as a result of Lessee's vacating such premises. 10. DEFAULT. If the rent above reserved, or any part thereof, shall be in arrears, or if default shall be made in any of the covenants or agreements herein contained to be kept or performed by Lessee, it shall be lawful for Lessor to declare the term hereof ended and to again repossess the premises. If the term shall be ended as aforesaid, or in any other way, Lessee covenants and agrees to surrender and deliver up said premises peaceably to Lessor immediately upon the termination of the term and if the Lessee shall remain in possession after the termination thereof, said Lessee shall be deemed guilty of forcible detainer of the premises and shall besubject to eviction. 11. NOTICES. All notices given or required hereunder shall be delivered personally or mailed, postage prepaid, addressed to the respective parties at the addresses as follows: LESSOR: P. O. Drawer 987 Glenwood Springs, CO. 81601 LESSEE: P. O. Box 95 Glenwood Springs, CO. 81601 12. ASSIGNMENT. This lease shall not be assignable by Lessee. Lessee may, however, sublease all or any portions of the demised premises to The City of Glenwood Springs, Colorado, a municipal corporation,. but Lessee may not sublease any portion of the demised premises to any other person or party without Lessor's prior express written consent. 13. BINDING EFFECT. The within indenture shall extend to and be binding upon the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF the parties have hereunto set their hands and seals to triplicate originals, effective the day and year first above written. WESTBANK RANCH NO. 1, LTI). By: WESTBANK DEVELOPMENT CO., INC. General Managing Partner B ATTEST: retary President WESTBANK RANCH HOMEOWNERS ASSOCIATION By: ATTEST: Secreta APPROVED: THE BANK OF GLENWOOD By: , y STATE 'OF COLORADO ) COUNTY OF GARFIELD ) ss. Tbove and fo of Lease was acknowledged before me this day of , 1978, by John Huebinger, Jr. as President and Dolores Huebinger as Secretary of WESTBANK DEVELOPMENT CO., INC. General Managing Partner of WESTBANK RANCH NO. 1, LTD. a Colorado limited partnership. My commission expires: Fly Commissicn Expires Flay 29, 1919 WITNESS my hand and official seal. STATE OF COLORADO ) COUNTY OF GARFIELD ) ss. Notary Public A/6 Elft and nreioing Lease was ack.owledged be pre this Z -day of ,l �j , 1 78, by���._� .► _Jr / as President and V or _],BP7 /4"1"- as Secret RANCH HOMEOWNERS ASSOCIATION, a Co orado corporation not 0 of WESTBANK, My commission expires: Ily Commission Ezr:res Flay 29i 1974 • WITNESS my hand and official seal. i» VC" c - Notary Public for profit. 1. a "•4 a 4 1. aLIL8-4111" ruipg ,IFTT1' %1 '3 16 L▪ .1 •-▪ ) I(. 11 uwwauunowwwultui 917117h/ ;,,/ fo / rirrirriprn.irr7 t • 34 z 2 p F 4 / L.11..cy/ 2 4, 17 ..;" • • , '• 77rr.7 • c• 14 '2 5 I I :4 `,.r`. 0-- --- c7.41- t•J o EASE - WESTBANK GOLF.COURSE - ..tt•mir-r -nrs'Ir""`"Irr.: -7' s • .1.,!Zio • .'"•-ser.,11; • FT \-5;7;71 7\) 2: f • ., Pedestrian and Service and Maintenance Vehicle Easement ileSTBANK RANCH NO. 1 411kD P.O. BOX 987 GLENWOOD SPRINGS, COLORADO 81601 PHONE 945 M2 6619 December 5, 1977 Golf -Course EguiPment List 1 - Massey Backhoe Serial # Unknown 1 - Freezer 1 -- Ice Machine 1 - Refrigerator 1 - Stove, GE TP 112346G 1 - Refrigerator, GE At 632273 1- 5 Gang Mower, #5-1106, #5-1105, #5-1090, 45-1116 & #4-00144 1- Toro Power Mower (hand) "Whirlwind HD25", Model #V50, 60052G, SN#3072R 1 - Scotts Model R7 Fertilizer Spreader 1 - Scotts Model 100-4 Drop Fertilizer 1 - Ryan Mataway and Attachments, Engine No. 243432, Type 066-01 Code 7301311, Model #544283, SN #41801 1 - Ryan Spreadrite Model #544250, SN #40184 1 -- Cyclone Seeder 1- Massey -Ferguson Tractor, Model #Mf 135, 8151Z145, SN #SGW 641012301 1 -- Hanson Sprayer, Model #101856, 173067 1 - Jacobsen Greensmower with Grasscatci:er, #62207-2628 1 -- Toro Greensmaster #3, SN #04401, #04401-42954, #004042661 and 04401-43053 1 - Rough Mower 1 - White Chevrolet 1967 Pickup Truck SN#CF147S 163665 EXHIBIT A • EXHIBIT B . EMPLOYMENT CONTRACT THIS AGREEMENT made and entered into as of this 30th day of October, 1977, by and between WESTBANK RANCH NO. 1, a Colorado Limited Partnership, whose address is P. O. Box 987, Glenwood Springs, Colorado, hereinafter referred to as Owner, and DAN SOMMERS, whose address is 3011 Market Way, Grand Junction, Colorado, hereinafter referred to as Employee, WITNESSETH: The parties, in consideration of the covenants and agreements as hereinafter contained, covenant and agree as follows: 1. Owner does hereby employ employee as golf professional, golf course supervisor, and golf club manager at the golf course operated by Owner located South of Glenwood Springs, Colorado, for the period commencing April 1, 1978, through November 1, 1978, and for the same period for each calendar year thereafter through 1982, at a total salary for all of such years of $21,000.00 payable on the 1st days of May, June, July, August, September, October and November of each such year in installments of $600.00 each. 2. Employee agrees to become employed by Owner in the foregoing capacity at and for the consideration above stated and such other consideration as is set forth hereinafter. 3. Employee shall be under the supervision of and be directly responsible to the Board of Directors of Westbank Development Co., Inc., the general partner of Owner. 4. The general functions and responsibilities of Employee shall be as follows: (a) Conduct and supervise all golf lessons and instructions. (b) Maintain a pro shop and make available for sale to to members and guests golf equipment and clothing. (c) Operate and coordinate club storage for members of Owner. (d) Arrange and coordinate golf tournaments and activities. Employee shall generate as much revenue as possible from these tournaments in the interest of the Owner. EXHIBIT B • • (e) Supervise and coordinate, all repairs, maintenance, and upkeep of golf course and other athletic facilities located at Westbank Ranch. Hire and fire as necessary all employees of golf course. Purchase all supplies, equipment and utilities as necessary to fulfill his responsibilities hereunder. All expenses incurred by Employee in fulfilling his responspbilities under this paragraph 4. (e) shall be the responsibility of Owner. (f) Operate and maintain bar and restaurant including paying all bar and restaurant costs, salaries, license fees, and related charges. As a convenience, the liquor license will be under a name other than Employee's. Employee agrees that he will protect the priviledge of this license in accordance with the liquor laws of the County of Garfield and the State of Colorado. 5. In performing the duties required of him in connection with the employment referred to in the foregoing paragraph, Employee shall be required to operate the following concessions on the premises of Owner and the division of the proceeds there- from shall be as follows: (a) Sale of golf merchandise. Total income to Employee. (b) Golf instruction. Total income to Employee. (c) Golf club cleaning, renting, repairs and storage. Total income to Employee. (d) Golf carts. Employee shall purchase and maintain all golf carts. Total income to the parties as follows: i. Mechanized 90% to Employee; 10% to Owner. ii. Pull - Total income to Employee. iii. Any annual mechanized golf cart income - 50% to Employee; 50% to Owner. (e) Bar and restaurant - Total income to Employee. (f) Golf tournaments - Income to be divided between Owner and Employee according to formula to be agreed upon prior to each tournament. (g) Golf Course - Total income, including greens fees and fees from other athletic facilities, to Owner. The losses, if any, from such concessions shall be borne by the respective parties in the same ratio as profits are distributed. 6. In the operation of the concessions enumerated in paragraph 5., Employee shall be responsible for providing adequate personnel and equipment to properly carry out the operation and functions of each such concession, at Employee's sole expense. He shall also purchase and pay for all materials and merchandise used or sold in the operation of such concessions in his own name and on his own responsibility. This paragraph 6. shall not apply to the operation, upkeep, maintenance and repair of the golf course, which shall be as set forth in paragraph 4. (e). -2- i • 7. In the operation of the concessions aforesaid, Employee shall be deemed an independent contractor. He, shall keep adequate books and records, make all tax returns, and pay all taxes, including income and social security taxes and unemployment compensation, required in connection therewith in his own name. Such books and records shall be his own private property. 8. Owner shall provide all necessary fire, casualty and liability insurance for entire golf course operation with the exception of golf carts. Liability insurance for golf carts shall be provided by Employee, naming Owner as additional insured. Such liability insurance coverage shall be in the amount of at least $500,000.00. Employee shall also provide casualty insurance on merchandise sold through the pro shop, and such insurance as Employee deems advisable for golf club storage. 9. Employee shall collect and remit to Owner on a weekly basis all green fees and Owner's share of cart rentals collected by Employee. He shall keep separate books and records of all said fees and rentals, which shall be subject to Owner's inspection on Owner's request, and make such reports concerning the same to Owner as shall from time to time be required by Owner. 10. Owner shall furnish Employee with adequate quarters on the premises of Owner for the performance of the duties and functions enumerated in this Agreement. 11. Employee understands and agrees that budget of Owner for complete operation and maintenance of golf course is limited. In this respect there is a $40,000.00 budget for the year 1978. Employee will cooperate in every respect to generate sufficient revenue to fund this budget and budgets for ensuing years, or possibly reduce such budget. It is also agreed that the golf course needs improvements to generate additional revenues. Employee will exercise his best efforts to generate these revenues and make these improvements. 12. The concessions operated by Employee shall be open seven days per week during golfing hours and the personal presence of the Employee in the operation thereof shall be required six • • days per week, provided, however, that Employee shall be granted the right to participate in four golfing tournaments per year, the dates of such tournaments to be determined by Employee. Employee shall also, in the company of members of Owner, participate in such Pro -Am tournaments as are required by the Colorado Section of the Professional Golfers Association to qualify the golf course facilities of Owner for PGA/CGA sanctioned Pro -Am events and tournament events. In all such events, Employee shall be the representative of Owner. 13. The within agreement is not assignable by Employee. 14. The within indenture shall extend to and be binding upon the successors and assigns of Owner, but is personal to Employee and shall not be binding upon or inure to the benefit of his heirs, devisees or personal representatives. IN WITNESS WHEREOF the parties have hereunto set their hands and seals the day and year first above written. OWNER: WESTBANK RANCH NO. 1 By: WESTBANK DEVELOPMENT CO., INC. General Partner By:� 1 EMPLOYEE:` 7 0 DAN SOMMERS EXHIBIT B AILMENT TO EMPLOYMENT CONIOCT THIS AMENDMENT is made and entered into on this 13th day of March, 1978 between WESTBANK RANCH NO. 1, LTD., a Colorado Limited Partnership, whose address is P. O. Box 987, Glenwood Springs, Colorado, hereinafter referred to as "Owner", and DAN SOMi4ERS, whose address is 3011 Market Way, Grand Junction, Colorado, hereinafter referred to as "Employee". WHEREAS, the undersigned are the parties to that certain EMPLOYMENT CONTRACT entered into as of October 30, 1977 governing the employment of Employee by Owner as golf professional, golf course supervisor, and golf club manager at Westbank Golf Course located South of Glenwood Springs, Colorado; and WHEREAS, the parties desire to amend certain provisions and terms of said EMPLOYMENT CONTRACT; such parties have agreed to the wording of such amendments; and such parties do desire to now memorialize their understandings with respect to such amendments. NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and in said EMPLOYMENT CONTRACT contained, to be kept and performed by the undersigned, Owner and Employee do hereby covenant and agree as follows: 1. Paragraph 4.(f) on page 2 of said EMPLOYMENT CONTRACT is hereby amended to read as follows: Operate and maintain bar and restaurant including paving all -bar and restaurant costs, salaries, license fees, and related charges. The liquor license shall be under E-ployee's name. Employee agrees that he will protect the privilege of this license in accordance wits the liquor leas of t e County of Garfield and State of Colorado, and will timely a-:zT periodically apply for such license and all necessary renewals, at Employee's expense. 2. Except with respect to said paragraph 4.(f), all ot;.e tor::s, provisions, and agreements contained in said EMPLOYMENT CONTRACT shall be and remain in full force and effect, and are hereby ratified and confirmed. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year first above written. WESTBANK RANCH NO. 1, LTD. By: Westbank Development Co., Inc. --general managing partner /' By . _ Presideyt / Dan So-_ .ers OWNER EMPLOYEE EXHIBIT B EXHIBIT C • IN THE DISTRICT COURT IN AND FOR WATER DIVISION NO. 5 STATE OF COLORADO Application No. W-2516 IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF WESTBANK RANCH NO. 1, LTD. IN THE ROARING FORK RIVER IN GARFIELD COUNTY FILED iN'Ar TER Div sioI No. _ S TE OF. LORWO �Zfiflllrf-� i -----.. ----- DY RULING OF REFEREE The above entitled application was filed on December 17, 1974, and was referred to the undersigned as Water Referee for Water Divi- sion No. 5, State of Colorado, by the \Dater Judge of said Court on the 3rd day of January, 1975, and again, after stipulation, on August 7, 1975, in accordance with Article 92 of Chapter 37, Colorado Revised Statutes 1973, known as The Water Rights Determination and Administration Act of 1969. And the undersigned Referee having made such investigations as are necessary to determine whether or not the statements in the appli- cation and statement of opposition are true and having become fully advised with respect to the subject matter of the application and state- ment of opposition does hereby make the following determination and ruling as the Referee in this matter, to -wit: 1. The statements in the application are true. 2. The name of the structure is Robertson Ditch. 3. The name of the claimant and address is Westbank Ranch No. 1, Ltd.; c/o Mincer, Larson and Hartert; P.O. Box 850; Glenwood Springs, Colorado. 4. The source of the water is the Roaring Fork River. 5. The headgate of the Robertson Ditch is located on the Westerly bank of the Roaring Fork River at a point whence the SQuthe st Corner of Section 12, T.7S., R.89W. of the 6th P.M. bears N. 27 2,788.14 feet. 6. The Robertson Ditch has been awarded the following in pre- vious Civil Actions: Priority No. 52 for 4.0 cubic feet of water per second of time by virtue of original construction relating back to February 11, 1883; Priority No. 112 for3.5 curelating back water per second of time by virtue of First Enlargement g to April 1, 1885; Priority No. 595 for 9.0 cubic feet of water per second of time by virtue of Second Enlargement relating back to April 2, 1950. The applicant is the owner of an undivided .two-fifths interest in Priorities No. 52 and No. 112; and is the owner of an undivided seven -ninths interest is10.0 cubicfeetofwater persecond oftime. es1�5�The al nt aQted by this appl1 EXIHBIT C • • 7. On December 17, 1974, the applicant filed, in Water Court for Water Division No. 5, an application for change in water right in which it is requested that the applicant be permitted to change the method of use of the water owned by him in the Robertson Ditch, so that the applicant may divert, at times, all of the water from the main irrigation ditch to five storage ponds. At other times the ap- plicant will leave the water in the ditch for purposes of irrigation as has been done in the past. The water in the ponds is used for recreational, piscatorial and irrigation purposes for a golf course. Applicant will not enlarge the historic consumptive use of the water, nor will the change result in any diminution of return flow to the stream. No other appropriations will be damaged by the change. All construction encompassed by the requested change has been completed, and the system has been in full operation since August of 1972. • Applicant intends no change in time, place, or type of use, nor in the means or point of diversion of the water owned by applicant. Rather, applicant seeks a change from immediate, direct application of the adjudicated, absolute water rights, to storage and subsequent application of the water. 8. On February 27, 1975, the Ranch at Roaring Fork Home- owners Association, Inc., filed a statement of opposition, and the Water Referee re-referred the application to the Water Judge for Water Division No. 5. 9. On August 7, 1975, the applicant and the objectors filed the following stipulation: A..Objector hereby withdraws its Statement of Opposition filed herein, on the condition that any decree entered in this matter per- mitting a change of water rights from direct application to storage and subsequent application, in the manner requested in the Application herein, contain the provisions set forth in this Stipulation. B. Applicant hereby agrees and covenants that the storage and subsequent application of water decreed to the Robertson Ditch, in the manner requested in the Application herein, shall be so limited as to result in no enlargement of historic consumptive use of the water rights for which the change is sought, as to result in no change in the time, place or type of use thereof historically made, and as to result in no diminution or other change in historic return flow patterns from the use of such water rights to the detriment of Objector. C. Applicant hereby agrees and covenants that in order to protect the interests of Objector it is necessary that the Division Engineer and his subordinate water officials administer the storage and subsequent application of water decreed to the Robertson Ditch in such a way as to enforce the provisions of this Stipulation as incor- porated into any decree entered herein. Applicant further agrees and lV .t.la_J L s that Ldt 11order .r L o p r V . Lc L L L c ln 4 Ll LJy J 3f v b, Cz.+._Ci 1L 1J necessary that, in the event that Objector believes that the requirements of any decree entered herein are not being fully satisfied, Objector may petition either the Division Engineer or the Water Judge of Water Division No. 5 for legal or equitable relief, as permitted by law. D. The rights and obligations described herein shall be binding on and inure to the benefit of the parties hereto, their respective successors and assigns. The Referee does therefore conclude that the above entitled ap- plication should be granted and that the change in method of use of the applicant's Robertson Ditch water as described in paragraph 7 above should be allowed; subject, however to the terms and conditions as set forth in the stipulation in paragraph 9 above. It is accordingly ORDERED that this ruling shall be filed with • yr 111 • the Water Clerk and shall become effective upon such filing, subject to Judicial review pursuant to Section 37-92-304 C.R.S. 1973. It is further ORDERED that a copy of this ruling shall be filed with the appropriate Division Engineer and the State Engineer. Done at the City of Glenwood Springs, Colorado, this L7 day o f G'T� : rL , 19 7 IC- • BY THE REFEREE: 44_ Water (J a eree Water Division No. 5 State of Colorado • No protest was filed in this matter, and accordingly the fore- going ruling is confirmed and approved, and is made the Judgment and Decree of this court; provided however, that the approval of this change of water right shall be subject to reconsideration by the Water Judge on the question of injury to the vested rights of others during any hearing coumencing in the two calendar years succeeding the year in which this decision is rendered. T•o protest Was filed i-+ The foregoing ruling it ---'ir-� and approved, and is nae! the Judgment and Decree of this court. Pated: Water Judge Dated /%-l..i 7A i Water Judge .t • !AP 11 /4) EXHIBIT D • • John Huebinger, Jr., President WESTBANK DEVELOPMENT CO., INCORPORATED General Managing Partner of WESTBANK RANCH NO. 1, LTD. January 20, 1978 Mr. James L. Rose 0180 County Road 109 Glenwood Springs, CO. 81601 RE: Robertson Ditch Dear Mr. Rose: You and I met on January 13, 1978 with. our attorneys and representatives of the United States Department of Agriculture Soil Conservation Service to review the preliminary report prepared by the SCS, with accompanying drawings and survey information, pertaining to ditch improvements on Robertson Ditch No. 47, in which we both own certain water rights. The purpose of the meeting was to study the feasibility of implementing suggestions made by the SCS and exploring alternatives to the pending litigation in which we are involved concerning the Robertson Ditch and the respective rights and duties each of us has with regard to this ditch and the water adjudicated thereto. This was the first meeting we have had with the SCS since we entered into a cooperative agreement with them last year enabling the SCS to undertake its study and to make its propos:als for improvements to the ditch. As a result of this meeting, the SCS will undertake and give us cost estimates to implement the project upon as to particulars and scope. In the meantime, certain matters which need to be undertaken as soon benefit the parties to the ditch. The agreements we have reached are as follows: further work in our behalf we eventually hope to agree we have reached agreements on as possible and which mutually 1. By March 1, 1978 I will contribute $2,000.00 and you will contribute $1,000.00 into a joint bank account to be established at a commercial bank in Glenwood Springs, Colorado. In order to draw on this account it will be necessary for both of us to sign checks. The purpose of the account is to establish a fund in order to defray expenses of the items enumerated in paragraphs 2. through 6. below. 2. We will cause, hopefully with the assistance of Garfield County, the culvert which is in the Robertson Ditch underlying County Road 109, to be lowered to such a depth as is necessary to set the culvert to proper grade and alignment with the ditch itself. T will contr4hute a 36" diameter culvert, 20 feet long, for installation in place of the culvert underlying the Rose lane. 3. From your last take-out point to County Road 109, we will jointly cause the ditch to be graded and cleaned by Wilmer Kindall or such other heavy equipment operator as we mutually agree upon. I will undertake to contact Mr. Kindall and will attempt to arrange a meeting between him and us, where we can discuss the expected amount of his charges before we authorize him to perform the necessary ditch work. EXHIBIT D A Mr. James Rose January 20, 1978 Page 2 • • 4. There are three major leaks along the Robertson Ditch, the locations of which we have agreed upon, which need to be repaired before water is diverted out of the Roaring Fork River into the ditch this spring. We jointly agree to cause these leaks to be plugged and the ditch to be repaired, again working with Mr. Kindall or such other person as we agree upon. 5. Mr. Kindall, or such other person as we mutually agree upon, will clean the Robertson Ditch from your second take-out point to your barn. 6. Commencing immediately and throughout the y e.a r , we agree to implement a program of beaver control in an attempt to eradicate beavers from the ditch and to minimize the damage caused by beavers daming the ditch. * 7. We have agreed to undertake and complete as soon as possible the items outlined in paragraphs 2. through 6. above, as weather and ground conditions permit, hoping to have all of these items completed by no later than April 15, 1978, having due regard for the needs of each other concerning the running of our respective water rights through the Robertson Ditch and the application of such water to the beneficial uses to which we are entitled to put such water. A Court'hearing is set on the above referenced litigation to commence at 9:30 A.M. on February 3, 1978, Civil Action No. W-2516. By your acceptance of the terms of this letter and our signatures appearing below, we hereby authorize our respective attorneys to vacate such Court hearing, and to leave the pending litigation open until such time as it appears we are unable to amicably resolve our disputes short of Court proceedings. Neither of us, by entering into this agreement, waives any rights, remedies or claims he may have against the other party to the litigation, and reserves the right to make whatever assertions, claims or arguments he is best so advised, in the event it becomes necessary to re -set said Court hearing or conduct further proceedings with respect to such litigation. We understand that upon receipt of additional information from the SCS which they have undertaken to provide us, we will attempt to reduce to more formal agreement the foregoing terms and provisions together with such other terms, provisions and conditions as we feel are necessary or appropriate concerning the Robertson Ditch and the rights and duties we have with respect thereto. *We agree to undertake and continue Yours very truly, throughout the irrigation season, a regular program of ditch cleaning WESTBANK RANCH NO. 1, LTD. and inspection the length of the By: Westbank Development Co., Inc. ditch from the headgate to County Road 109. BY: President READ AND ACCEPTED:,— James L." Rose READ AND APPROVED: JH/ef /" Charles M. Stoddad, Attorney for James L. Rose James M. Lar on, Attorney for Westbank Ranch No. 1, Ltd.