HomeMy WebLinkAboutresolution.council.111-18 RESOLUTION # 111
(Series of 2018)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING THE ENTRY INTO A PROPOSED
CONTRACT BETWEEN THE CITY OF ASPEN AND 517 EAST
HOPKINS, LLC, ("517 Seller") AND 204 SOUTH GALENA STREET,
LLC, ("204 Seller"), AUTHORIZING THE CITY MANAGER TO
EXECUTE A FINAL CONTRACT ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a Contract
for an Amended and Restated Contract To Buy And Sell Real Estate
(Commercial) between the City of Aspen and 517 Seller and 204 Seller, a draft
of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves the entry into
that Contract for an Amended and Restated Contract To Buy And Sell Real Estate
(Commercial) between the City of Aspen and 517 Seller and 204 Seller, in the
form substantially the same as annexed hereto and incorporated herein, and does
hereby authorize the City Manager to execute the final contract on behalf of the
City of Aspen, subject to final approval of the City Manager and City Attorney.
INTRODUCED, READ AND ADOPTED by t e City Council of the City of
Aspen on the 30`h day of July 2018. l
St en Sk ron, Mayor
I, Linda Manning, duly appointed and acting City lerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held July 30, 2018.
Linda Manning, City Cle k
I The printed portions of this form,except differentiated additions,have been approved by the Colorado Real Estate Commission.
2 (CBS3-6-1 5)(Mandatory 1-16)
3
4 THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR
5 OTHER COUNSEL BEFORE SIGNING.-
6
7 AMENDED AND RESTATED CONTRACT TO BUY AND SELL REAL ESTATE
8 (COMMERCIAL)
9 (® Property with No Residences)
10 (E] Property with Residences-Residential Addendum Attached)
n
12 Date: 7/12/2018
13 AGREEMENT
14 THIS AMENDED AND RESTATED CONTRACT TO BUY AND SELL REAL ESTATE (COMMERCIAL) (the
15 "Contract") is made and entered by and among THE CITY OF ASPEN, COLORADO ("Bovey'), 517 EAST HOPKINS ASPEN,
16 LLC, a Colorado limited liability company ("517 Seller"), 204 SOUTH GALENA STREET, LLC, a Colorado limited liability
17 company("204 Seller"),and M Development Aspen, LLC, a Colorado limited liability company("MDA'). For purposes of this
18 Contract, the term "Seller" shall mean and include both the 517 Seller and the 204 Seller, provided however, that the rights and
19 obligations of each such respective Seller shall solely relate to the real property and appurtenances owned by such Seller. Further,
20 the term"Seller"shall expressly exclude MDA,which is a party to this Contract solely with respect to the provisions of Section 30.T
21 hereof.
22 WHEREAS, the City and the 517 Seller previously entered into that certain Contract to Buy and Sell Real Estate dated June
23 14,2018,as amended by that certain Agreement to Amend/Extend Contract dated June 18,2018(collectively,the"Prior Contract")
24 providing for,among other things,the City's purchase,and the 517 Seller's sale,of the 517 Property(as defined below);
25 . WHEREAS, the 204 Seller is the owner of certain improved real property legally described as Lots A, B, and C, Block 94,
26 City and Townsite of Aspen, County of Pitkin, State of Colorado, and also known by street address as 204 South Galena Street,
27 Aspen,Colorado 81611;
28 WHEREAS,by[Itis Contract,the City, the 517 Seller,and the 204 Seller desire to amend and restate the Prior Contract in its
29 entirety to additionally provide for the City's purchase,and the 204 Seller's sale,of the 204 Property(as hereinafter defined)to the
30 City simultaneous with the City's purchase and the 517 Seller's sale of the 517 Property;and
31' WHEREAS, in furtherance of the objectives of this Contract, pursuant to a"Joint Development Agreement"to be negotiated
32 between the City and MDA as more fully provided for in Section 30.T hereof,the City desires to engage MDA to provide for the
33 redevelopment of the City's existing offices and facilities located at 130 South Galena Street,Aspen,Colorado 81611,and familiarly
34 known as the "Armory Building", with such redevelopment project referred to herein as the "Armory Building Redevelopment
35 Proiect".
36 NOW, THEREFORE, in consideration of. the covenants, conditions and terms hereof, in addition to other valuable
37 consideration,the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows:
38 1. AGREEMENT. Buyer agrees to buy and Seller agrees to sell,the Property described below on the terms and conditions set
39 forth in this contract(Contract).
40 2. PARTIES AND PROPERTY.
41 2.1. Buyer. Buyer, City of Aspen, will take title to the Property described below as D jeint Tenants El Tenanis In
42 CommonE] Other-. .
43 2.2. No Assignability. This Contract Is Not assignable by Buyer unless otherwise specified in Additional Provisions.
44 2.3. Seller. Seller, 517 East Hopkins Aspen, LLC (i.e., the 517 Seller) and 204 South Galena Street, LLC (i.e., the 204
45 Seller ,are each the current owner of the respective Property described below.
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46 2.4. Property. The Property is the following legally described real estate in the County of Pitkin,Colorado:
47
48 As to the 517 Seller,a to-be-condominiumized portion of Lots D,E and F,Block 94;City and Townsite of Aspen,County of
49 Pitkin,State of Colorado,as more fully described in Section 30 hereof(the"517 Property");and
50 As to the 204 Seller,a to-be-condominiumized portion of Lots A,B,and C,Block 94,City and Townsite of Aspen,County
51 of Pitkin, State of Colorado,as more fully described in Section 30 hereof(the"204 Property")
52
53 known as No. 517 East Hopkins Avenue and 204 South Galena Street,Aspen-'CO 81611 ,
54 Street Address City State Zip
55 together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto, and all interest of
56 Seller in vacated streets and alleys adjacent thereto, except as herein excluded (Property). For purposes of this Contract, the term
57 "Property"shall include both the 517.Property and the 204 Property,as applicable to the respective Seller of each of the 517 Property
58 and the 204 Property.
59
60 2.5. Inclusions. The Purchase Price includes the following items(Inclusions):
61 2.5.1. Inclusions — Attached. If attached to the Property on the date of this Contract, the following items are
62 included unless excluded under Exclusions: lighting,heating,plumbing,ventilating and air conditioning units,TV antennas, inside
'63 telephone,network and coaxial(cable)wiring and connecting blocks/jacks,plants,mirrors,floor coverings,intercom systems,built-
64 in kitchen appliances, sprinkler systems and controls, built-in vacuum systems (including accessories), garage door openers
65 (including any remote controls). If checked,the following are owned by the Seller and included(leased items should be listed under
66 Due Diligence Documents): ❑ None ❑ Solar Panels ❑ Water Softeners ❑ Security Systems ❑ Satellite Systems
67 (including satellite dishes). If any additional items are attached to the Property after the date of this Contract,such additional items
68 are also included in the Purchase Price.
69 2.5.2. Inclusions — Not Attached. If on the Property, whether attached or not, on the date of this Contract, the
70 following items are included unless excluded under Exclusions: storm windows, storm doors, window and porch shades, awnings,
71 blinds, screens, window coverings and treatments, curtain rods, drapery rods, fireplace inserts, fireplace screens, fireplace grates,
72 heating stoves,storage sheds,carbon monoxide alarms;smokelfire detectors and all keys.
73 2.5.3. Personal Property—Conveyance. Any personal property must be conveyed at Closing by Seller free and
74 clear of all taxes(except personal property taxes for the year of Closing), liens and encumbrances, except N/A. Conveyance of all
75 personal property will be by bill of sale or other applicable legal instrument.
76 2.5.4. Other Inclusions. The following items, whether fixtures or personal property, are also included in the
77 Purchase Price: Those appurtenant to the Property including all owner/tenant improvements and fixtures.
78
79 2.5.5. Parking and Storage Facilities. ❑ Use Only ®Ownership of the following parking facilities:
.80 those appurtenant to the Property and ❑ Use Only ®Ownership of the following storage facilities: those appurtenant to the
81 Prove
82 2.6. Exclusions. The following items are excluded(Exclusions): None
183
i 84 2.7. Water Rights,Well Rights,Water and Sewer Taps.
85 ❑ 2.7.1. Deeded Water Rights. The following legally described water rights:N/A
86
87 Any deeded water rights will be conveyed by a good and sufficient deed at Closing.
88 ❑ 2.7.2. Other Rights Relating to Water. The following rights relating to water not included in§§ 2.7.1,2.7.3,2.7.4
89 and 2.7.5,will be transferred to Buyer at Closing:N/A
90
91 ❑ 2.7.3. Well Rights. Seller agrees to supply required information to Buyer about the well. Buyer understands that if
92 the well to be transferred is a"Small Capacity Well"or a"Domestic Exempt Water Well,"used for ordinary household purposes,
93 Buyer must,prior to or at Closing,complete a Change in Ownership form for the well. If an existing well has not been registered
94 with the Colorado Division of Water Resources in the Department of Natural Resources (Division), Buyer must complete a
95 registration of existing well forin for the well and pay the cost of registration. If no person will be providing a closing service in
96 connection with the transaction, Buyer must file the form with the Division within sixty days after Closing. The Well Permit# is
97 N/A.
98 ❑ 2.7.4. Water Stock Certificates. The water stock certificates to be transferred at Closing are as follows:N/A
99
100 2.7.5. Conveyance. If Buyer is to receive any rights to water pursuant to §2.7.2 (Other Rights Relating to Water),
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101 § 2.7.3(Well Rights),or§2.7.4(Water Stock Certificates),Seller agrees to convey such rights to Buyer by executing the applicable
102 legal instrument at Closing.
103 3. DATES AND DEADLINES.
Item Reference Event Date or Deadline
No.
1 ' 4.3 Alternative Earnest Money Deadline 3 business days after MEC*
Title
2 ' 8.1 Record Title Deadline 7 days after MEC**
3 ' 8.2 Record Title Objection Deadline 21 days after MEC
4 ' 8.3 Off-Record Title Deadline 7 days after MEC**
5 ' 8.3 Off-Record Title Objection Deadline 21 days after MEC
6 ' 8.4 Title Resolution Deadline 25 days after MEC
7 ' 8.6 Right of First Refusal Deadline N/A
Owners'Association
8 ' 7.3 Association Documents Deadline
9 ' 7.4 Association Documents Objection Deadline
Seller's Property Disclosure
10 § 10.1 1 Seller's Property Disclosure Deadline 7 days after MEC**
Loan and Credit
I 1 § 5.1 Loan Application Deadline N/A
12 ' 5.2 Loan Objection Deadline N/A
13 ' 5.3 Buyer's Credit Information Deadline N/A
14 ' 5.3 Disapproval of Buyer's Credit Information Deadline N/A
15 ' 5.4 Existing Loan Documents Deadline N/A
16 ' 5.4 Existing Loan Documents Objection Deadline N/A
17 ' 5.4 1 Loan Transfer Approval Deadline N/A
18 '4.7 Seller or Private Financing Deadline N/A
Appraisal
19 6.2 Appraisal Deadline N/A
20 6.2 Appraisal Objection Deadline N/A
21 ' 6.2 Appraisal Resolution Deadline N/A
Survey
22 ' 9.1 New ILC or New Surve Deadline 14 days after MEC**
23 ' 9.3 1 New ILC or New Survey Objection Deadline 21 days after MEC
24 §9.4 New ILC or New Survey Resolution Deadline 25 days after MEC
Ins ection and Due Diligence
25 ' 10.3 Inspection Objection Deadline 30 days after MEC
26 ' 10.3 Inspection Resolution Deadline 35 days after MEC
27 ' 10.5 Property Insurance Objection Deadline 30 days after MEC
28 ' 10.6 Due Diligence Documents Delivery Deadline 7 days after MEC**
29 ' 10.6 Due Diligence Documents Objection Deadline 30 days after MEC
30 ' 10.6 1 Due Diligence Documents Resolution Deadline 35 days after MEC
31 $ 10.6 Environmental Inspection Objection Deadline N/A
32 10.6 ADA Evaluation Objection Deadline N/A
33 10.7 Conditional Sale Deadline N/A
34 11.1 Tenant Estoppel Statements Deadline N/A
35 11.2 Tenant Estoppel Statements Objection Deadline N/A
Closing and Possession
36 ' 12.3 Closing Date See Section 30
37 17 Possession Date Closing Date
38 17 Possession Time Upon delivery of deed
39 28 Acceptance Deadline Date
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Item Reference Event Date or Deadline
No.
40 • 28 Acceptance Deadline Time 5:00 PM MDT
104 *The Buyer previously delivered the Earnest Money to the Earnest Money Holder pursuant to the Prior Contract. Such prior delivery
105 of Earnest Money shall be credited by the Earnest Money Holder to this Contract.
106 **Pursuant to the Prior Contract, the 517 Seller has previously provided for the delivery of applicable items. Therefore, the
107 obligation to provide information and/or documentation pursuant to§ 8.1,§ 8.3,§ 10.1,§9.1,and§ 10.6 shall only apply to the 204
108 Seller and the 204 Property.
109 3.1. Applicabilityof Terms. Any box checked in this Contract means the corresponding provision applies.Any box,blank
110 or line in this Contract left blank or completed with the abbreviation"N/A",or the word"Deleted"means such provision,including
1 I 1 any deadline; is not applicable and the corresponding provision of this Contract to which reference is made is deleted. If no box is
112 checked in a provision that contains a selection of"None",such provision means that"None"applies.
113 The abbreviation"MEC"(mutual execution of this Contract)means the date upon which both parties have signed this Contract.
114 4. PURCHASE PRICE AND TERMS.
115 4.1. Price and Terms. The Purchase Price set forth below is payable in U.S.Dollars by Buyer as follows:
Item. Reference Item Amount Amount
No.
1 §4.1 Purchase Price**** $ 32,500,000.00**
2 §4.3 Earnest Mone * $ 3,500,000.00
3 §4.5 New Loan $
4 • 4.6 Assumption Balance $
5 • 4.7 Private Financing $
6 §4.7 Seller Financing $
7
8
9 ' 4.4 Cash at Closing $ 29,000 000.00
10 TOTAL $ 32,500,000.00** $ 32,500,000.00***
*
116 ***$23,000,000.00 of the total Purchase Price shall be allocated to the Buyer's purchase of the 517 Property, and $9,500,000.00
117 shall be allocated to the Buyer's purchase of the 204 Property. In addition,Buyer shall pay to MDA the sum of$12,500,000.00 in
118 connection with the Armory Building Redevelopment Project as provided for in Section 30.T hereof.
119 4.2. Seller Concession. At Closing,Seller will credit to Buyer$N/A rc.,n„_C-ene.._..:.._ The c..n.._G......e....:,....na y b.....ed c_
120
121
122 not hFaited i9i BuyeF's closing costs, loan diseount points, loan 9Fi&afi6fl fees, pFepaid 40ERS Bad afl5' OtheF fee, Best, 611ftei
123 OMPeRSO OF 0XPeREIit1.1+P_ SAIRF GBRAegsien is in additien ;a any sum Seller has agfeed !a pay or efedi! Buyer elsewhere in this
124 C-entsast. -
125 4.3. Earnest Money. The Earnest Money set forth in this section,in the form of a Good Funds,will be payable to and held
126 by the Title Insurance Company in Section 8.1.1 (Earnest Money Holder), in its trust account, on behalf of both Seller and Buyer.
127 One-half of the Earnest Money shall be paid by Buyer on the Alternative Earnest Money Deadline,and the other one-half shall be
128 paid by Buyer within two business days after the expiration of the Inspection Resolution Deadline. The Earnest Money deposit must
129 be tendered, by Buyer, with this Contract unless the parties mutually agree to an Alternative Earnest Money Deadline for its
130 payment. The parties authorize delivery of the Earnest Money deposit to the company conducting the Closing(Closing Company),
131 if any,at or before Closing. In the event Earnest Money Holder has agreed to have interest on Earnest Money deposits transferred
132 to a fund established for the purpose of providing affordable housing to Colorado residents,Seller and Buyer acknowledge and agree
133 that any interest accruing on the Earnest Money deposited with the Earnest Money Holder in this transaction will be transferred to
134 such fund.
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135 43.1. Alternative Earnest Money Deadline. The deadline for delivering the Earnest Money, if other than at the
136 time of tender of this Contract,is as set forth as the Alternative Earnest Money Deadline. See Section 4.3 above.
137 43.2. Return of Earnest Money. If Buyer has a Right to Terminate and timely terminates,Buyer is entitled to the
138 return of Earnest Money as provided in this Contract. If this Contract is terminated as set forth in §25 and, except as provided in
139 § 24, if the Earnest Money has not already been returned following receipt of a Notice to Terminate, Seller agrees to execute and
140 return to Buyer or Broker working with Buyer,written mutual instructions(e.g.,Earnest,Money Release form),within three days of
141 Seller's receipt of such form.
142 4.4. Form of Funds; Time of Payment; Available Funds.
143 4.4.1. Good Funds. All amounts payable by the parties at Closing, including any loan proceeds,Cash at Closing
144 and closing costs, must be in funds that comply.with all applicable Colorado laws, including electronic transfer funds, certified
145check,savings and loan teller's check and cashier's check(Good Funds).
146 4.4.2. Time of Payment;•Available Funds. All funds,including the Purchase Price to be paid by Buyer,except in
147 connection with the Armory Building Redevelopment Project as provided for in Section 30.T hereof, must be paid before or at
148 Closing or as otherwise agreed in writing between the parties to allow disbursement by Closing Company at Closing OR SUCH
149 NONPAYING PARTY WILL BE IN DEFAULT. Buyer represents that Buyer,as of the date of this Contract, ® Does ❑ Does
150 Not have funds that are immediately verifiable and available in an amount not less than the amount stated as Cash at Closing in
151 §4.1.
152 4.5. New Loan.(Omitted as inapplicable)
153
154 4.6. Assumption. (Omitted as inapplicable)
155
156 4.7. Seller or Private Financing. (Omitted as inapplicable)
157
158 TRANSACTION PROVISIONS
159 5. FINANCING CONDITIONS AND OBLIGATIONS.(Omitted as inapplicable)
160 5.3. Credit Information. (Omitted as inapplicable)
161 5.4. Existing Loan Review. (Omitted as inapplicable)
162 6. APPRAISAL PROVISIONS. (Omitted as inapplicable)
163 71 OWNERS' .4 990QAXIONThis Seetion is appileable if the Property is loesied ivith-in a Common InteFest Gomm
164
165 7.3. CAFRINAH IHtPFPqt GAm_muinity Diselosur-e. THE PROPERTY 18 LOCATED IALIT14IN A COMMON
166
167 THE PROP-ER44 WILL BE REQ14-R-E-D TO 8_9 -4 MEMBER OF THE OWNERS' 4 THE
168 COMMUNITY .4-ND- I.Aq-1 I- BE RIM-MECT TO THE WA-AINS .4-ND Rig-ES .4ND REGI-11 ATIONS OF T-14C
169 ASSOCIATION. T14E DECLARATION, BYLAWS, AND RULES AND REGUI 4TIONS AA411 IMPOSE FIN4NQ_4kJ6
170
081-11G.4TIONS IWON T-14-E OWNER OFT-HE PROPERTY,INCLIM ING.4-"-_LIc;Aq_PIo_Wi"- -
171 OF THE .49SOCLATION. IF THE OWNER -DOES NOT PAY THESE ASSESSAIENT�, THE ASSOCIATION COULD
172 ,
173 A-ND_ R14349 A_ND R-EG-14-.4TIONS OF THE G0A4MIJN1!PV MAY PROHIBIT THE OWNER FROM MAIQNG
174 !`LUNGES TO THE RRIIRERTV WITHOUT AN AR!•14TECTIN-41 REVIEW RV THE 4990 IATION (OR A
175 !`/IA044TTEE OF TLC 4PNOCiATION) AND THE APPROVAL -OF TIIC ASSIIl4AT-10N RTrRC-HASCDS OF
176 PROPERTY 1ATFRIN TLC COAS140N INTEREST COMMUNITY SHOULD INVESTIGATE TLC CINANI`lAi
177 OBLIGATIONS OF MEMBERS OF THE ASSOCIATION. FURGHASERS SHOW-D G.4-RAF119-16V READ THE
178
179 49SACIATION: .
180
181 . . . , qpefatiR
182
183 7.2 Minutes o fm peppfit Annual .,
184 723
185 . . . . ,
186
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187 7,&C The faest reeent fiamAiAl desuments v.-high e9asist ofi (1) annual and most Feeent balanee sheet, (2) annual
188 Affid Most FROARt iflABIN enient, (3) annual budge!, (4) FeSeR'O study,and (5) notiee efunpaid assessments, i
189 any(eelleetively,Financial Deruments).
190 73. As,eeintien Deettments toRayer-- '
191 7:3I. ower t^o Pro 4110 AN-RAPiAtiAN o^" oen ts. Seller is obligated taro: Buyer o"gide Bu the ." ooiatier.
obligated
192
193
194
195 7 4 Conditional on Buyer-'s Review. Buyer has the Fight tA FA140'0'the AggAsiatien Deeuments. Buyer has the Right to
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199
200
201
202
203 „
204 8. TITLE INSURANCE,RECORD TITLE AND OFF-RECORD TITLE.
205 8.1. Evidence of Record Title.
206 ® 8.1.1. Seller Selects Title Insurance Company. If this box is checked, Seller will select the title insurance
207 company to furnish the owner's title insurance policy at Seller's expense.On or before Record Title Deadline, Seller must famish
208 to Buyer,a current commitment for an owner's title insurance policy(Title Commitment), in an amount equal to the portion of the
209 Purchase Price allocated to the 517 Property and the 204 Property,as appropriate,or if this box is checked,❑an Abstract of Title
210 certified to a current date. Seller will cause the title insurance policy to be issued and delivered to Buyer as soon as practicable at or
211 after Closing.
212 ❑ 8.1.2. Buyer Selects Title Insurance Company. If this box is checked, Buyer will select the title insurance
213 company to furnish the owner's title insurance policy at Buyer's expense.On or before Record Title Deadline,Buyer must furnish to
214 Seller,a current commitment for owner's title insurance policy(Title Commitment),in an amount equal to the Purchase Price.
215 If neither box in§ 8.1.1 or§ 8.1.2 is checked,§ 8.1.1 applies.
216 8.1.3. Owner's Extended Coverage (OEC). The Title Commitment ® Will ❑ Will Not contain Owner's
217 Extended Coverage(OEC).If the Title Commitment is to contain OEC,it will commit to delete or insure over the standard exceptions
218 which relate to: (1) parties in possession, (2) unrecorded easements, (3) survey matters, (4) unrecorded mechanics' liens, (5) gap
219 period(period between the effective date and time of commitment to the date and time the deed is recorded),and(6)unpaid taxes,
220 assessments and unredeemed tax sales prior to the year of Closing.Any additional premium expense to obtain OEC will be paid by ❑
221 Buyer ® Seller❑One-Half by Buyer and One-Half by Seller ❑Other
222 Regardless of whether the Contract requires OEC, the Title Insurance Commitment may not provide OEC or delete or insure over
223 any or all of the standard exceptions for OEC.The Title Insurance Company may require a New Survey or New ILC,defined below,
224 among other requirements for OEC.If the Title Insurance Commitment is not satisfactory to Buyer,Buyer has a right to object under
225 § 8.4(Right to Object to Title,Resolution).
226 8.1.4. Title Documents.Title Documents consist of the following: (1)copies of any plats,declarations,covenants,
227 conditions and restrictions burdening the Property, and (2) copies of any other documents (or, if illegible, summaries of such
228 documents) listed in the schedule of exceptions (Exceptions) in the Title Commitment furnished to Buyer (collectively, Title
229 Documents).
230 8.1.5. Copies of Title Documents. Buyer must receive, on or before Record Title Deadline, copies of all Title
231 Documents. This requirement pertains only to documents as shown of record in the office of the clerk and recorder in the county
232 where the Property is located. The cost of furnishing copies of the documents required in this Section will be at the expense of the
233 party or parties obligated to pay for the owner's title insurance policy.
234 8-1-6- E*isfing 4hqtFeetii Af Title gelleF M1.161 dAiVRIF 1A Rtiyer eepies of any abstFaGts of title aevering all OF any
235 .
236 8.2. Record Title. Buyer has the right to review and object to the Abstract of Title or Title Commitment and any of the
237 Title Documents as set forth in§ 8.4(Right to Object to Title,Resolution)on or before Record Title Objection Deadline.Buyer's
238 objection may be based on any unsatisfactory form or content of Title Commitment or Abstract of Title,notwithstanding § 13, Or
239 any other unsatisfactory title condition, in Buyer's sole subjective discretion. If the Abstract of Title, Title Commitment.or Title
240 Documents are not received by Buyer,on or before the Record Title Deadline,or if there is an endorsement to the Title Commitment
241 that adds a new Exception to title, a copy of the new Exception to title and the modified Title Commitment will be delivered to
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242 Buyer. Buyer has until the earlier of Closing or ten days after receipt of such documents by Buyer to review and object to:-(I)any
243 required Title Document not timely received by Buyer,(2)any change to the Abstract of Title,Title Commitment or Title Documents,
244 or (3) any endorsement to the Title Commitment. If Seller receives Buyer's Notice to Terminate or Notice of Title Objection,
245 pursuant to this§ 8.2 (Record Title),any title objection by Buyer is governed by the provisions set forth in§ 8.4(Right to Object to
246 Title,Resolution).If Seller has fulfilled all Seller's obligations,if any,to deliver to Buyer all documents required by§ 8.1 (Evidence
247 of Record Title) and Seller does not receive Buyer's Notice to Terminate or Notice of Title Objection by the applicable deadline
248 specified above, Buyer accepts the condition of title as disclosed by the Abstract of Title,Title Commitment and Title Documents
249 as satisfactory.
250 8.3. Off-Record Title. Seller must deliver to Buyer, on or before Off-Record Title Deadline, true copies of all existing
251 surveys in Seller's possession pertaining to the Property and must disclose to Buyer all easements,liens(including,without limitation,
252 governmental improvements approved,but not yet installed)or other title matters(including,without limitation,rights of fust refusal
253 and options)not shown by public records,of which Seller has actual knowledge(Off-Record Matters). Buyer has the right to inspect
254 the Property to investigate if any third party has any right in the Property not shown by public records(e.g., unrecorded easement,
255 boundary line discrepancy or water rights).Buyer's Notice to Terminate or Notice of Title Objection of any unsatisfactory condition
256 (whether disclosed by Seller or revealed by such inspection, notwithstanding § 8.2 and§ 13), in Buyer's sole subjective discretion,
257 must be received by Seller on or before Off-Record Title Objection Deadline.If an Off-Record Matter is received by Buyer after the
258 Off-Record Title Deadline, Buyer has until the earlier of Closing or ten days after receipt by Buyer to review and object to such
259 Off Record Matter. If Seller receives Buyer's Notice to Terminate or Notice of Title Objection pursuant to this § 8.3 (Off-Record
260 Title), any title objection by Buyer and this Contract are governed by the provisions set forth in § 8.4 (Right to Object to Title,
261 Resolution). If Seller does not receive Buyer's Notice to Terminate or Notice of Title Objection by the applicable deadline specified
262 above,Buyer accepts title subject to such rights,if any,of third parties of which Buyer has actual knowledge.
263 8.4. Right to Object to Title, Resolution. Buyer's right to object to any title matters includes,but is not limited to those
264 matters set forth in§§ 8.2(Record Title), 8.3 (Off-Record Title)and 13 (Transfer of Title), in Buyer's sole subjective discretion. If
265 Buyer objects to any title matter,on or before the applicable deadline,Buyer has the following options:
266 8.4.1. Title Objection,Resolution. If Seller receives Buyer's written notice objecting to any title matter(Notice of
267 Title Objection)on Or before the applicable deadline,and if Buyer and Seller have not agreed to a written settlement thereof on or
268 before Title Resolution Deadline,this Contract will terminate on the expiration of Title Resolution Deadline,unless Seller receives
269 Buyer's written withdrawal of Buyer's Notice of Title Objection(i.e., Buyer's written notice to waive objection to such items and
270 waives the Right to Terminate for that reason), on or before expiration of Title Resolution Deadline. If either the Record Title
271 Deadline or the Off-Record Title Deadline,or both,are extended to the earlier of Closing or ten days after receipt of the applicable
272 documents by Buyer, pursuant to § 8.2 (Record Title) or § 8.3 (Off-Record Title), the Title Resolution Deadline also will be
273 automatically extended to the earlier of Closing or fifteen days after Buyer's receipt of the applicable documents;or
274 8.4.2. Title Objection,Right to Terminate. Buyer may exercise the Right to Terminate under§ 25.1,on or before
275 the applicable deadline,based on any unsatisfactory title matter,in Buyer's sole subjective discretion.
276 8.5. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION
277 INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE
278 PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK
279 FOR INCREASED MILL LEVIES AND TAX TO SUPPORT THE SERVICING OF SUCH DEBT WHERE
280 CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH
281 INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYERS SHOULD INVESTIGATE THE
282 SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS LOCATED BY CONTACTING THE COUNTY
283 TREASURER, BY REVIEWING THE CERTIFICATE OF TAXES DUE FOR THE PROPERTY, AND BY OBTAINING
284 FURTHER INFORMATION FROM THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY CLERK AND
285 RECORDER,OR THE COUNTY ASSESSOR
286 Buyer has the Right to Terminate under §25.1; on or before Off-Record Title Objection Deadline, based on any.
287 unsatisfactory effect of the Property being located within a special taxing district,in Buyer's sole subjective discretion.
288 8.6. Right of First Refusal or Contract Approval. (Omitted as inapplicable)
289 8.7. Title Advisory. The Title Documents affect the title, ownership and use of the Property and should be reviewed
290 carefully. Additionally, other matters not reflected in the Title Documents may affect the title, ownership and use of the Property,
291 including, without limitation, boundary lines and encroachments, set-back requirements, area, zoning, building code violations,
292 unrecorded easements and claims of easements,leases and other unrecorded agreements,water on or under the Property,and various
293 laws and governmental regulations concerning land use,development and environmental matters.
294 8.7.1. OIL, GAS, WATER AND MINERAL DISCLOSURE. THE SURFACE ESTATE OF THE
295 PROPERTY MAY BE OWNED SEPARATELY FROM THE UNDERLYING MINERAL ESTATE,AND TRANSFER OF
296 THE SURFACE ESTATE MAY NOT NECESSARILY INCLUDE TRANSFER OF THE MINERAL ESTATE OR WATER
297 RIGHTS.THIRD PARTIES MAY OWN OR LEASE INTERESTS IN OIL,GAS,OTHER MINERALS,GEOTHERMAL
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298 ENERGY OR WATER ON OR UNDER THE SURFACE OF THE PROPERTY,WHICH INTERESTS MAY GIVE THEM
299 RIGHTS TO ENTER AND USE THE SURFACE OF THE PROPERTY TO ACCESS THE MINERAL ESTATE, OIL,
300 GAS OR WATER.
301 8.7.2. SURFACE USE AGREEMENT. THE USE OF THE SURFACE ESTATE OF THE PROPERTY
302 TO ACCESS THE OIL, GAS OR MINERALS MAY BE GOVERNED BY A SURFACE USE AGREEMENT, A
303 MEMORANDUM OR OTHER NOTICE OF WHICH MAY BE RECORDED WITH THE COUNTY CLERK AND.
304 RECORDER. .
305 8.7.3. OIL AND GAS ACTIVITY. OIL AND GAS ACTIVITY THAT MAY OCCUR ON OR ADJACENT
306 TO THE PROPERTY MAY INCLUDE,BUT IS NOT LIMITED TO,SURVEYING,DRILLING,WELL COMPLETION
307 OPERATIONS, STORAGE, OIL AND GAS, OR PRODUCTION FACILITIES, PRODUCING WELLS, REWORKING
308 OF CURRENT WELLS,AND GAS GATHERING AND PROCESSING FACILITIES.
309 8.7.4. ADDITIONAL INFORMATION. BUYER IS . ENCOURAGED TO SEEK ADDITIONAL
310 INFORMATION REGARDING OIL AND GAS ACTIVITY ON OR ADJACENT TO THE PROPERTY, INCLUDING
311 DRILLING PERMIT APPLICATIONS. THIS INFORMATION MAY BE AVAILABLE FROM THE COLORADO OIL
312 AND GAS CONSERVATION COMMISSION.
313 8.7.5. Title Insurance Exclusions. Matters set forth in this Section, and others, may be excepted, excluded from,
314 or not covered by the owner's title insurance policy.
315 S.S. Consult an Attorney. Buyer is advised to timely consult legal counsel with respect to all such matters as there are
316 strict time limits provided in this Contract(e.g.,Record Title Objection Deadline and Off-Record Title Objection Deadline).
317 9. NEW ILC,NEW SURVEY.
318 9.1. New HC or New Survey. If the box is checked, a ❑ New Improvement Location Certificate (New ILC)
319 ®New Survey in the form of an Improvement Survey Plat is required and the following will apply:
320 9.1.1. Ordering of New ILC or New Survey. ® Seller ❑ Buyer will order the New ILC or New Survey. The
321 New ILC or New Survey may also be a previous ILC or survey that is in the above-required form,certified and updated as of a date
322 after the date of this Contract.
323 9.1.2. Payment for New H.0 or New Survey. The cost of the New ILC or New Survey will be paid,on or before
324 Closing,by: ®Seller ❑ Buyer or:
325
326
327 9.1.3. Delivery of New ILC or New Survey. Buyer,Seller,the issuer of the Title Commitment(or the provider of
328 the opinion of title if an Abstract of Title),and Buyer's attorney will receive a New ILC or New Survey on or before New ILC or
329 New Survey Deadline.
330 9.1.4. Certification of New ILC or New Survey. The New ILC or New Survey will be certified by the surveyor
331 to all those who are to receive the New ILC or New Survey.
332 9.2. Buyer's Right to Waive or Change New ILC or New Survey Selection. Buyer may select a New ILC or New
333 Survey different than initially specified in this Contract if there is no additional cost to Seller or change to the New H.0 or New
334 Survey Objection Deadline. Buyer may, in Buyer's sole subjective discretion, waive a New ILC or New Survey if done prior to
335 Seller incurring any cost for the same.
336 9.3. New ILC or New Survey Objection. Buyer has the right to review and object to the New ILC or New Survey. If the
337 New ILC or New Survey is not timely received by Buyer or is unsatisfactory to Buyer, in Buyer's sole subjective discretion,Buyer
338 may,on or before New ILC or New Survey Objection Deadline,notwithstanding§ 8.3 or§ 13:
339 9.3.1. Notice to Terminate. Notify Seller in writing that this Contract is terminated;or
340 93.2. New ILC or New Survey Objection. Deliver to Seller a written description of any matter that was to be
341 shown or is shown in the New ILC or New Survey that is unsatisfactory and that Buyer requires Seller to correct.
342 9.3.3. New ILC or New Survey Resolution. If a New ILC or New Survey Objection is received by Seller,on or
343 before New ILC or New Survey Objection Deadline,and if Buyer and Seller have not agreed in writing to a settlement thereof on
344 or before New ILC or New Survey Resolution Deadline,this Contract will terminate on expiration of the New-ILC or New Survey
345 Resolution Deadline, unless.Seller receives Buyer's written withdrawal of the New ILC or New Survey Objection before such
346 termination, i.e.,on or before expiration of New ILC or New Survey Resolution Deadline.
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347 DISCLOSURE,INSPECTION AND DUE DILIGENCE
348 10. PROPERTY DISCLOSURE,INSPECTION,INDEMNITY,INSURABILITY AND DUE DILIGENCE.
349 10.1. Seller's Property Disclosure. On or before Seller's Property Disclosure Deadline,Seller agrees to deliver to Buyer
350 the most current version of the applicable Colorado Real Estate Commission's Seller's Property Disclosure forth completed by Seller
351 to Seller's actual knowledge,current as of the date of this Contract.
352 10.2. Disclosure of Latent Defects; Present Condition. Seller must disclose to Buyer any latent defects actually known
353 by Seller. Seller agrees that disclosure of latent defects will be in writing. Except as otherwise provided in this Contract, Buyer
354 acknowledges that Seller is conveying the Property to Buyer in an"As Is"condition,"Where Is"and"With All Faults."
355 10.3. Inspection. Unless otherwise provided in this Contract,Buyer,acting in good faith,has the right to have inspections
356 (by one or more third parties,personally or both)of the Property and Inclusions(Inspection),at Buyer's expense. If(1)the physical
357 condition of the Property,including,but not limited to,the roof,walls,structural integrity of the Property,the electrical,plumbing,
358 HVAC and other mechanical systems of the Property, (2) the physical condition of the Inclusions, (3) service to the Property
359 (including utilities and communication services), systems and components of the Property (e.g., heating and plumbing), (4) any
360 proposed or existing transportation project, road, street or highway, or(5) any other activity, odor or noise (whether on or off the
361 Property) and its effect or expected effect on the Property or its occupants is unsatisfactory, in Buyer's sole subjective discretion,
362 Buyer may,on or before Inspection Objection Deadline:
363 10.3.1. Notice to Terminate. Notify Seller in writing that this Contract is terminated;or
364 10.3.2. Inspection Objection. Deliver to Seller a written description of any unsatisfactory physical condition that
365 Buyer requires Seller to correct.
366 10.33. Inspection Resolution. If an Inspection Objection is received by Seller,on or before Inspection Objection
367 Deadline,and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Inspection Resolution Deadline,
368 this Contract will terminate on Inspection Resolution Deadline unless Seller receives Buyer's written withdrawal of the Inspection
369 Objection before such termination,i.e.,on or before expiration of Inspection Resolution Deadline.
370 10.4. Damage, Liens and Indemnity. Buyer, except as otherwise provided in this Contract or other written agreement
371 between the parties,is responsible for payment for all inspections, tests,surveys,engineering reports,or other reports performed at
372 Buyer's request (Work) and must pay for any damage that occurs to the Property and Inclusions as a result of such Work. Buyer
373 must not permit claims or liens of any kind against the Property for Work performed on the Property. Buyer agrees to indemnify,
374 protect and hold Seller harmless from and against any liability,damage,cost or expense incurred by Seller and caused by any such
375 Work, claim, or lien. This indemnity includes Seller's right to recover all costs and expenses incurred by Seller to defend against
376 any such liability, damage, cost or expense, or to enforce this section, including Seller's reasonable attorney fees, legal fees and
377 expenses. The provisions of this section suryive the termination of this Contract. This § 10.4 does not apply to items performed
378 pursuant to an Inspection Resolution.
379 10.5. Insurability. Buyer has the right to review and object to the availability, terms and conditions of and premium for
380 property insurance(Property Insurance).Buyer has the Right to Terminate under§25.1,on or before Property Insurance Objection
381 Deadline,based on any unsatisfactory provision of the Property Insurance,in Buyer's sole subjective discretion.
382 10.6. Due Diligence.
383 10.6.1. Due Diligence Documents. If the respective box is checked,Seller agrees to deliver copies of the following
384 documents and information pertaining to the Property(Due Diligence Documents)to Buyer on or before Due Diligence Documents
385 Delivery Deadline:
386. ❑ 10.6.1.1. All contracts relating to the operation,maintenance and management of the Property;
387 ❑ 10.6.1.2. Property tax bills for the last n/a years;
388 ❑ 10.6.13. As-built construction plans to the Property and the tenant improvements, including architectural,
389 electrical, mechanical, and structural systems; engineering reports; and permanent Certificates of Occupancy, to the extent now
390 available;
391 ® 10.6.1.4. A list of all Inclusions to be conveyed to Buyer;
392 ❑ 10.6.1.5. Operating statements for the past years;
393 ❑ 10.6.1.6. A rent roll accurate and correct to the date of this Contract;
394 ❑ 10.6.1.7. All current leases, including any amendments or other occupancy agreements, pertaining to the
395 Property. Those leases or other occupancy agreements pertaining to the Property that survive Closing are as follows(Leases): The
396 Property will be delivered to Buyer at Closine free and clear of any tenants or occupants.
397 ® 10.6.1.8. A schedule of any tenant improvement work Seller is obligated to complete but has not yet
398 completed and capital improvement work either scheduled or in process on the date of this Contract;
399 ® 10.6.1.9. All insurance policies pertaining to the Property and copies of any claims which have been made
400 for the past 5 years;
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401 ® 10.6.1.10. Soils reports, surveys and engineering reports of data pertaining to the Property(if not delivered
402 earlier under§ 8.3);
403 ® 10.6.1.11. Any and all existing documentation and reports regarding Phase I and II environmental reports,
404 letters,test results,advisories,and similar documents respective to the existence or nonexistence of asbestos,PCB transformers,or
405 other toxic, hazardous or contaminated substances,and/or underground storage tanks and/or radon gas. If no reports are in Seller's
406 possession or known to Seller, Seller warrants that no such reports are in Seller's possession or known to Seller;
407 ❑ 10.6.1.12. Any Americans with Disabilities Act reports,studies or surveys concerning the compliance of the `
408 Property with said Act;
409 ® 10.6.1.13. All permits,licenses and other building or use authorizations issued by any governmental authority
410 with jurisdiction over the Property and written notice of any violation of any such permits,licenses or use authorizations,if any;and
41 I ❑ 10.6.1.14. Other documents and information:
412
413 Seller's obligation to deliver the Due Diligence Documents set forth above shall be limited to those documents in existence as of the
414 MEC Date hereof,and which are in the possession of Seller.
415
416 10.6.2. Due Diligence Documents Review and Objection. Buyer has the right to review and object to Due Diligence
417 Documents. If the Due Diligence Documents are not supplied to Buyer or are unsatisfactory in Buyer's sole subjective discretion,
418 Buyer may,on or before Due Diligence Documents Objection Deadline:
419 10.6.2.1. Notice to Terminate. Notify Seller in writing that this Contract is terminated;or
420 10.6.2.2. Due Diligence Document Objection. Deliver to Seller a written description of any unsatisfactory
421 Due Diligence Documents that Buyer requires Seller to correct.
422 10.6.2.3. Due Diligence Document Resolution. If a Due Diligence Document Objection is received by
423 Seller,on or before Due Diligence Document Objection Deadline,and if Buyer and Seller have not agreed in writing to a settlement
424 thereof on or before Due Diligence Document Resolution Deadline, this Contract will terminate on Due Diligence Document
425 Resolution Deadline unless Seller receives Buyer's written withdrawal of the Due Diligence Document Objection before such
426 termination,i.e.,on or before expiration of Due Diligence Document Resolution Deadline.
427 10.6.3. Zoning. Buyer has the Right to Terminate under§25.1,on or before Due Diligence Documents Objection
428 Deadline,based on any unsatisfactory zoning and any use restrictions imposed by any governmental agency with jurisdiction over
429 the Property, in Buyer's sole subjective discretion.
430 10.6.4. Due Diligence - Environmental, ADA. Buyer has the right to obtain environmental inspections of the
431 Property including Phase I and Phase II Environmental Site Assessments,as applicable. ❑Seller ® Buyer will order or provide
432 ❑ Phase I Environmental Site Assessment,.❑ Phase Ii Environmental Site Assessment(compliant with most current version
433 of the applicable ASTM E1527 standard practices for Environmental Site Assessments)and/or❑
434 at the expense of ❑ Seller ® Buyer (Environmental Inspection). In addition, Buyer, at Buyer's expense, may also conduct an
435 evaluation whether the Property complies with-the Americans with Disabilities Act (ADA Evaluation). All such inspections and
436 evaluations must be conducted at such times as are mutually agreeable to minimize the interruption of Seller's and any Seller's
437 tenants' business uses of the Property,if any.
438 1913ti5W'S Phase 1 EAYiFAF1FHLHtAI SkP A9qP9qFHPfltFAAA,rAFAends A.Phase!!gavifeRmental Site Assessment,the Enicironmental
439 run —1 : Deadline A.al L,...xtR -d L., dv s (E
,pccivn�oyoc.,vre-vc �-� tc3EEflnded €n>,fremnenEO:l InspesEien
440 Objeetion Deadline) A-Ird ifsueh Fxtended EfiviFeninental ifispeation Objeation Deadline extends beyead the Closing Date, the
441 Closing Date YAII be extended a lilEe peried of finte. in sueh event, E] Seller E] Buyer- must pay the eest feF such Ph-asp 11
442 .
443 Notwithstanding Buyer's right to obtain additional environmental inspections of the Property in this § 10.6.5,Buyer has the
444 Right to Terminate under § 25.1, on or before Environmental Inspection Objection Deadline, eF if appli--"- the F_•^-a_a
445 , based on.any unsatisfactory results of Environmental Inspection, in Buyer's sole
446 subjective discretion.
447 Buyer has the Right to Terminate under§25.1,on or before ADA Evaluation Objection Deadline,based on any unsatisfactory
448 ADA Evaluation,in Buyer's sole subjective discretion.
449 10.7.' Conditional Upon Sale of Property.(Omitted as inapplicable)
450 10.8. Existing Leases; Modification of Existing Leases; New Leases. (Omitted as inapplicable)8elleF States that ReHO-of
451 the Leases to be assigned te the BuyeF at the time of Closing eentain any FeRt GORGOSSiOlIS,FOW r0dV66ORS OF FORt 1113atOffi0fitS eikeept
452 &9 diNGIANP61 41 the Lease OF 8theF iWiting Feeeived by BuyeF.SelleF YAII not amend,aliff,fnrrdif�,,extend OF GanGel",of the Leases
453 HOF VAII Seller will not enter into any new leases affecting the Property which shall be in effect as of the Closing Date.
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454 lb TEN.414TENT-OPPRI-STATEMEN
455 114. Tenant Estoppel Statements Conditions. 911YOF 1185 the Fight 10 F@ViOm,and abjeet ie any Esioppel statements SAIJA
456 must obtain and deliver te BUYeF On or before Tenant Estoppel Statements Deadfine,statements in a faFm and substanse Feasignabi
457 aeseptable to
458 141.1. The sommeneement date f h bease a seheduled teiminatiendate f the Lease;
459 11 11 That ...:a I..e.... is .. lull f6FA. and ..{iC..r And that there he..e L...... ., subsequent .....A:C...er:...... ,.�
460 amendments '
461 ii.iu. The amount of e...,va.an80 Fe..WS paid fe consessiens given,and ilLpesits_aid is Seller.
462 11 1 A Theamount of mefuhly(or ether applie.Lle ..
period)Fental__:a to OellF. �
463 11 1 G That e_e:s uA aese.dr....a...the r..�q Af....:a Lease by laadlord.._........pant..pant. and
464 ILL& That the Legge to vhich the Estoppel is anaelied is a true, eeffeet and Gamplete eepy ef the hease de
465 ,he PFORliSeS itaessFibes -
466 111-& Tenant Estoppel Statements Objeetion. B115'ff has the Right t8 TeFfainaite undef § 25.1, on AF hefeFe T-PRAN
467 Estoppel Statements Objeetio a Deadline,based oB aRy unsatisfacteFy Estoppel Statement, in BUYeF'S 6910 subjietik,e diseizetion,
468 or ifgelleF fails tO d8liVeF the ESteppel Statements on erbefefe Tenant Estoppel Siatemenis Deadline.Buyer Aigg has the--ailatefal
469 Fight to waive any unsatisfeeiefy listeppel Staiement.
470 CLOSING PROVISIONS
471 12. CLOSING DOCUMENTS,INSTRUCTIONS AND CLOSING.
472 12.1. Closing Documents and Closing Information. Seller and Buyer will cooperate with the Closing Company to enable
473 the Closing Company to prepare and deliver documents required for Closing to Buyer and Seller and their designees. If Buyer is
474 obtaining a new loan to purchase the Property,Buyer acknowledges Buyer's lender is required to provide the Closing Company, in
475 a timely manner,all required loan documents and financial information concerning Buyer's new loan.Buyer and Seller will furnish
476 any additional information and documents required by Closing Company that will be necessary to complete this transaction. Buyer
477 and Seller will sign and complete all customary or reasonably required documents at or before Closing.
478 12.2. Closing Instructions. Colorado Real Estate Commission's Closing Instructions ❑ Are ® Are Not executed with
479 this Contract.
480 . 12.3. Closing. Delivery of deed from Seller to Buyer will be at closing(Closing). Closing will be on the date specified as
481 the Closing Date or by mutual agreement at an earlier date. The hour and place of Closing will be as designated by
482 First American Title Company(herein.the"Title Company").
483 12.4. Disclosure of Settlement Costs. Buyer and Seller acknowledge that costs,quality,and extent of service vary between
484 different settlement service providers(e.g.,attorneys,lenders,inspectors and title companies).
485 13. TRANSFER OF TITLE. Subject to tender of payment at Closing as required herein and compliance by Buyer with the other
486 terms and provisions hereof, Seller must execute and deliver a good and sufficient Special Wartanty deed to Buyer, at Closing,
487 conveying the Property free and clear of all taxes except the general taxes for the year of Closing. Except as provided herein, title
488 will be conveyed free and clear of all liens, including any governmental liens for special improvements installed as of the date of
489 Buyer's signature hereon,whether assessed or not.Tiile will be conveyed subject to:
490 13.1. Those specific Exceptions described by reference to recorded documents as reflected in the Title Documents accepted
491 by Buyer in accordance with Record Title,
492 13.2. Distribution utility easements(including cable TV),
493 13.3. Those specifically described rights of third parties not shown by the public records of which Buyer has actual
494 knowledge and which were accepted by Buyer in accordance with Off-Record Title and New ILC or New Survey,
495 13.4. Inclusion of the Property within any special taxing district,and
496 13.5. Any special assessment if the improvements were not installed as of the date of Buyer's signature hereon, whether
497 assessed prior to or after Closing,and
498 13.6. Other
499 14. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid will be paid at or before Closing from the
500 proceeds of this transaction or from any other source.
501 15. CLOSING COSTS,CLOSING FEE,ASSOCIATION FEES AND TAXES.
502 15.1. Closing Costs. Buyer and Seller must pay, in Good Funds,their respective closing costs and all other items required
503 to be paid at Closing,except as otherwise provided herein.
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504 15.2. Closing Services Fee. The fee for real estate closing services must be paid at Closing by ❑ Buyer ❑ Seller
505 ® One-Half by Buyer and One-Half by Seller ❑Other
506 15.3. Status Letter and Record Change Fees. Any fees incident to the issuance of Association's statement of assessments
507 (Status Letter)must be paid by ®None ❑Buyer ❑Seller ❑One-Half by Buyer and One-Half by Seller.Any record change
508 fee assessed by the Association including,but not limited to,ownership record transfer fees regardless of name or title of such fee
509 (Association's Record Change Fee) must be paid by ® None ❑ Buyer ❑ Seller ❑ One-Half by Buyer and One-Half by
510 Seller.
511 15.4. Local Transfer Tax. ® The Local Transfer Tax of See Section 30.A, Additional Provisions% of the Purchase
512 Price must be paid at Closing by ❑ None ®Buyer ❑Seller ❑One-Half by Buyer and One-Half by Seller.
513 15.5. Private Transfer Fee. Private transfer fees and other fees due to a transfer of the Property,payable at Closing,such
514 as community association fees, developer fees and foundation fees, must be paid at Closing by ® None ❑ Buyer ❑ Seller
515 ❑One-Half by Buyer and One-Half by Seller.The Private Transfer fee,whether one or more,is for the following association(s):
516 in the total amount of %of the Purchase Price or$_
517 15.6. Water Transfer Fees. The Water Transfer Fees can change. The fees, as of the date of this Contract, do not exceed,
518 $ for:
519 ❑ Water Stock/Certificates ❑ Water District
520 ❑Augmentation Membership ❑ Small Domestic Water Company ❑
521 and must be paid at Closing by ®None ❑Buyer ❑ Seller ❑One-Half by Buyer and One-Half by Seller.
522 15.7. Sales and Use Tax. Any sales and use tax that may accrue because of this transaction must be paid when due by
523 ® None ❑Buyer ❑Seller ❑ One-Half by Buyer and One-Half by Seller.
524 16. PRORATIONS. The following will be prorated to the Closing Date,except as otherwise provided:
525 16.1. Taxes. Personal property taxes,if any,special taxing district assessments,if any,and general real estate taxes for the .
526 year of Closing,based on ❑ Taxes for the Calendar Year Immediately Preceding Closing ® Most Recent Mill Levy and
527 Most Recent Assessed Valuation,adjusted by any applicable qualifying seniors property tax exemption,qualifying disabled veteran
528 exemption or ❑Other
529 16.2. Rents. (Omitted as inapplicable)
530 16.3. Association Assessments. Current regular Association assessments and dues (Association Assessments) paid in
531 advance will be credited to Seller at Closing.Cash reserves held out of the regular Association Assessments for deferred maintenance
532 by the Association will not be credited to Seller except as may be otherwise provided by the Governing Documents. Buyer
533 acknowledges that Buyer may be obligated to pay the Association,at Closing,an amount for reserves or working capital.Any special
534 assessment assessed prior to Closing Date by the Association will be the obligation of ❑Buyer ® Seller. Except however,any
535 special assessment by the Association for improvements that have been installed as of the date of Buyer's signature hereon,whether
536 assessed prior to or after Closing, will be the obligation of Seller. Seller represents that
537 there are no unpaid regular or special assessments against the Property
538 a„e me sand Such assessments are subject to change as provided in the Governing Documents. Seller agrees to promptly
539 request the Association to deliver to Buyer before Closing Date a current Status Letter.
540 16.4. Other Prorations. Water and sewer charges,propane,interest on continuing loan,and any oneoine services or
541 utilities.
542 16.5. Final Settlement. Unless otherwise agreed in writing,these proration are final.
543 17. POSSESSION. Possession of the Property will be delivered to Buyer on Possession Date at Possession Time,subject to the
544 Leases as set forth in§ 10.6.1.7.
545 If Seller,after Closing,fails to deliver possession as specified,Seller will be subject to eviction and will be additionally liable
546 to Buyer for payment of$ 1.000.00 per day (or any part of a day notwithstanding § 18.1) from Possession Date and Possession
547 Time until possession is delivered. Seller's performance of punch-list work after Closing shall not constitute Seller's failure to
548 deliver possession.
549 GENERAL PROVISIONS
550 18. DAY; COMPUTATION OF PERIOD OF DAYS,DEADLINE.
551 18.1. Day. As used in this Contract,the term"day"means the entire day ending at 11:59 p.m.,United States Mountain Time
552 (Standard or Daylight Savings as applicable).
553 18.2. Computation of Period of Days,Deadline. In computing a period of days,when the ending date is not specified,the
554 first day is excluded and the last day is included(e.g.,three days after MEC). If any deadline falls on a Saturday, Sunday or federal
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555 or Colorado state holiday(Holiday),such deadline ®Will ❑Will Not be extended to the next day that is not a Saturday,Sunday
556 or Holiday. Should neither box be checked,the deadline will not be extended.
557 19. CAUSES OF LOSS, INSURANCE; DAMAGE TO INCLUSIONS AND SERVICES; CONDEMNATION; AND
558 WALK-THROUGH. Except as otherwise provided in this Contract, the Property, Inclusions or both will be delivered in the
559 condition existing as of the date of this Contract,ordinary wear and tear excepted.
560 19.1. Causes of Loss, Insurance. In the event the Property or Inclusions are damaged by fire, other perils or causes of loss
561 prior to Closing in an amount of not more than ten percent of portion of the total Purchase Price which is allocated to the purchase of
562 the 517 Property or the 204 Property,or both,as appropriate(Property Damage),and if the repair of the damage will be paid by insurance
563 (other than the deductible to be paid by Seller),then Seller, upon receipt of the insurance proceeds, will use Seller's reasonable efforts
564 to repair the Property before Closing Date. Buyer has the Right to Terminate under§25.1,on or before Closing Date if the Property
565 is not repaired before Closing.Date or if the damage exceeds such sum. Should Buyer elect to carry out this Contract despite such
566 Property Damage, Buyer is entitled to a credit at Closing for all insurance proceeds that were received by Seller (but not the
567 Association, if any) resulting from damage to the Property and Inclusions, plus the amount of any deductible provided for in the
568 insurance policy.This credit may not exceed the portion of the Purchase Price which is allocated to the purchase of the 517 Property
569 or the 204 Property,or both,as appropriate. In the event Seller has not received the insurance proceeds prior to Closing, the parties
570 may agree to extend the Closing Date to have the Property repaired prior to Closing or,at the option of Buyer,(1)Seller must assign
571 to Buyer the right to the proceeds at Closing,,if acceptable to Seller's'insurance company and Buyer's lender;or(2)the parties may
572 enter into a written agreement prepared by the parties or their attorney requiring the Seller to escrow at Closing from Seller's sale
573 proceeds the amount Seller has received and will receive due to such damage,not exceeding the total of the portion of the Purchase
574 Price which is allocated to the purchase of the 517 Property or the 204 Property, or both, as appropriate, plus the amount of any
575 deductible that applies to the insurance claim.
576 19.2.. Damage,Inclusions and Services. Should any Inclusion or service(including utilities and communication services),
577 system,component or fixture of the Property(collectively Service)(e.g.,heating or.plumbing),fail or be damaged between the date
578 of this Contract and Closing or possession,whichever is earlier,then Seller is liable for the repair or replacement of such Inclusion
579 or Service with a unit of similar size, age and quality, or an equivalent credit, but only to the extent that the maintenance or
580 replacement of such Inclusion or Service is not the responsibility of the Association,if any,less any insurance proceeds received by
581 Buyer covering such repair or replacement. If the failed or damaged Inclusion or Service is not repaired or replaced on or before
582 Closing or possession, whichever is earlier, Buyer has the Right to Terminate under § 25.1, on or before Closing Date, or, at the
583 option of Buyer,Buyer is entitled to a credit at Closing for the repair or replacement of such Inclusion or Service. Such credit must
584 not exceed the portion of the Purchase Price which is allocated to the purchase of the 517 Property or the 204 Property,or both,as
585 appropriate. If Buyer receives such a credit, Seller's right for any claim against the Association, if any, will survive Closing. Seller
586 and Buyer are aware of the existence of pre-owned home warranty programs that may be purchased and may cover the repair or
587 replacement of such Inclusions.
588 19.3. Condemnation- Is thp. evont SPI.Iff prier to Closing that a pending eendenanatie
589
590 seiien. Buyer has the Right to T-efminate undef § 25.1, on of befeFe Closing Date,based an q--Ah sAndemnation aetiel)3 in BuyeF's
591
592
593 .
594 19.4. Walk-Through and Verification of Condition. Buyer, upon reasonable notice, has the right to walk through the
595 Property prior to Closing to verify that the physical condition of the Property and Inclusions complies with this Contract.
596 20. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this Contract,Buyer and Seller acknowledge that
597 the respective broker has advised that this Contract has important legal consequences and has recommended the examination of title
598 and consultation with legal and tax or other counsel before signing this Contract.
599 21. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence for all dates and deadlines in this Contract.
600 This means that all dates and deadlines are strict and absolute. If any payment due, including Earnest Money, is not paid, honored
601 or tendered when due, or if any obligation is not performed timely as provided in this Contract or waived, the non-defaulting party
602 has the following remedies:
603 21.1. If Buyer is in Default:
604 ❑ 21.14. Speeifie Pe4ar-monee. Seller may elect to eaneel this CAntm-gt And A-11 Pamest Meney(Whethff OF 1181 Pai
605 by Buy@F)mill be paid to SelleF ftfld FetaiRed by Seller.it is agFeed that the EaFnest Meney is net a penalty,and the Pafties agFea the
606
607 .
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608 21.1.2. Liquidated Damages,Applicable. This§21.1.2 applies unless the box in§21.1.1 is checked. Seller may
609 cancel this Contract. All Earnest Money(whether or not paid by Buyer) will be paid to Seller, and retained by Seller. It is agreed
610 that the Earnest Money specified in§4.1 is LIQUIDATED DAMAGES,and not a penalty,which amount the parties agree is fair
611 and reasonable and(except as provided'in§§ 10.4',22,23 and 24),said payment of Earnest Money is SELLER'S ONLY REMEDY
612 for Buyer's failure to perform the obligations of this Contract. Seller expressly waives the remedies of specific performance and
613 additionaldamages. In addition to the foregoing and notwithstanding anything herein to the contrary,upon such a default by Buyer,
614 all amounts paid by Buyer hereunder(including, without limitation, all Buyer Costs (as hereinafter defined) and other sums paid
615 pursuant to Section 30.0 hereof)shall be forfeited by Buyer.
616 21.2. If Seller is in Default: Buyer may elect to treat this Contract as canceled, in which case all Earnest Money received
617 hereunder will be returned and Buyer may recover such damages as may be proper. Alternatively, Buyer may elect to treat this
618 Contract as being in full force and effect and Buyer has the right to specific performance or damages,or both.
619 22. LEGAL FEES,COST AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of any arbitration
620 or litigation relating to this Contract, prior to or after Closing Date, the arbitrator or court must award to the prevailing party all
621 reasonable costs and expenses,including attorney fees,legal fees and expenses.
622 23. MEDIATION. (Omitted as.inapplicable)
623 24. EARNEST MONEY DISPUTE. Except as otherwise provided herein, Earnest Money Holder must release the Earnest
624 Money following.receipt of written mutual instructions,signed by both Buyer and Seller.In the event of any controversy regarding
625 the Earnest Money,Earnest Money Holder is not required to release the Earnest Money.Earnest,Money Holder,in its sole subjective
626 discretion,has several options: (1)wait for any proceeding between Buyer and Seller;(2)interplead all parties and deposit Earnest
627 Money into a court of competent jurisdiction,(Earnest Money Holder is entitled to recover court costs and reasonable attomey,and
628 legal fees incurred with such action);or(3)provide notice to Buyer and Seller that unless Earnest Money Holder receives a copy of
629 the Summons and Complaint or Claim(between Buyer and Seller) containing the case number of the lawsuit(Lawsuit) within one
630 hundred twenty days of Earnest Money Holder's notice to the parties, Earnest Money Holder is authorized to return the Earnest
631 Money to Buyer.In the event Earnest Money Holder does receive a copy of the Lawsuit,and has not interpled the monies at the time
632 of any Order, Earnest Money Holder must disburse the Earnest Money pursuant to the Order of the Court.
633 obligation of Mediation.This Section will survive cancellation or termination of this Contract.
634 25. TERMINATION.
635 25.1. Right. to Terminate. If a party has a right to terminate, as provided in this Contract (Right to Terminate), the
636 termination is effective upon the other party's receipt of a written notice to terminate(Notice to Terminate),provided such written
637 notice was received on or before the applicable deadline specified'in this Contract. If the Notice to Terminate is not received on or
638 before the specified deadline,the party with the Right to Terminate accepts the specified matter,document or condition as satisfactory
639 and waives the Right to Terminate under such provision.
640 25.2. Effect of Termination. In the event this Contract is terminated,all Earnest Money received hereunder will be returned
641 and the parties are relieved of all obligations hereunder,subject to §§ 10.4;22,3-3 and 24.
642 26. ENTIRE AGREEMENT, MODIFICATION, SURVIVAL; SUCCESSORS. This Contract, its exhibits and specified
643 addenda, constitute the entire agreement between the parties relating to the subject hereof, and any prior agreements pertaining
644 thereto,whether oral or written,have been merged and integrated into this Contract.No subsequent modification of any of the terms
645 of this Contract is valid, binding upon the parties, or enforceable unless made in writing and signed by the parties. Any right or
646 obligation in this Contract that, by its terms, exists or is intended to be performed after termination or Closing survives the same.
647 Any successor to a Party receives the predecessor's benefits,and obligations of this Contract.
648 27. NOTICE,DELIVERY,AND CHOICE OF LAW.
649 27.1. Physical Delivery and Notice. Any document,or notice to Buyer or Seller must be in writing, except as provided in
650 § 27.2, and is effective when physically received by such party, any individual named in this Contract to receive documents or
651 notices for such party,the Broker,or Brokerage Firm of Broker working with such party(except any notice or delivery after Closing
652 must be received by the party,not Broker or Brokerage Firm).
653 27.2. Electronic Notice. As an alternative to physical'delivery,any notice,may be delivered in electronic form to Buyer or
654 Seller,any individual named in this Contract to receive documents or notices for such party,the Broker or Brokerage Firm of Broker
655 working with such party(except any notice or delivery after Closing must be received by the party;not Broker or Brokerage Firm)
656 at the electronic address of the recipient by facsimile,email OF tarttreessaee.
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657 27.3. Electronic Delivery. Electronic Delivery of documents and notice may be delivered by:(1)email at the email address
658 of the recipient, (2) a link or access to a website or server provided the recipient receives the information necessary to access the
659 documents,or(3)facsimile at the Fax No.of the recipient.
660 27.4. Choice of Law. This Contract and all disputes arising hereunder are governed by and construed in accordance with
661 the laws of the State of Colorado that would be applicable to Colorado residents who sign a contract in Colorado f6r real property
662 located in Colorado.
663 28. NOTICE OF ACCEPTANCE, COUNTERPARTS. This proposal will expire unless accepted in writing, by Buyer and
664 Seller,as evidenced by their signatures below,and the offering party receives notice of such acceptance pursuant to§ 27 on or before
665 Acceptance Deadline Date and Acceptance Deadline Time. If accepted,this document will become a contract between Seller and
666 Buyer. A copy of this Contract may be executed by each party,separately, and when each party has executed a copy thereof,such
667 copies taken together are deemed to be a full and complete contract between the parties.
668 29. GOOD FAITH. Buyer and Seller acknowledge that each party has an obligation to act in good faith including,but not limited
669 to, exercising the rights and obligations set forth in the provisions of Financing Conditions and Obligations, Title Insurance,
670 Record Tide and Off-Record Title,New ILC,New Survey and Property Disclosure,Inspection, Indemnity,Insurability and
671 Due Diligence.
672 1 ADDITIONAL PROVISIONS AND ATTACHMENTS .
673 30. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado Real Estate
674 Commission.)
675
676 A. Buyer's purchase of the Property may be subject to the provisions of: (1) Ordinance No. 13,Series 1990 of
677 the City of Aspen, providing for a Housing Real Estate Transfer Tax (HRETT) in the amount of 1%of the portion of the
678 Purchase Price which is allocated to the purchase of the 517 Property or the 204 Property, or both,as appropriate
679 exceeding$100,000; and (2) Ordinance No. 20,Series 1979 of the City of Aspen, providing for a Real Estate Transfer
680' Tax(WRETT) in the amount of one-half of one percent(.5%) of the portion of the Purchase Price which is allocated to
681 the purchase of the 517 Property or the 204 Property,or both, as appropriate shall be payable by Buyer at Closing.
682 To the extent that either or both of such taxes shall be applicable to Buyer's purchase of the 517 Property and/or the
683 204 Property pursuant to this Contract, Buyer shall be solely responsible for the payment of such taxes.
684
685 B. Regarding Paragraph 2.2, No Assignability:This Contract shall be assignable by Buyer to an entity controlled
686 by the City of Aspen, Colorado without prior agreement of Seller; provided, however,that no such assignment shall
687 release Buyer from its obligations or liabilities hereunder,and Buyer shall deliver written notice of such assignment
688 to Seller not later than seven (7) days prior to the Closing Date.
689
690 C. Regarding Paragraph 9.1, NEW SURVEY:On or before the New Survey Deadline,the 204 Seller shall provide
691 to Buyer,at the 204 Seller's expense,four(4)copies of a current Boundary and Improvement Survey prepared by a
692 licensed surveyor(the "New Survey)within six(6) months of the date of this Contract.The New Survey shall be
693 certified to the 204 Seller, Buyer,the Title Company,and any lender designated by Buyer as reasonably requested by
694 Buyer.The corners of the Property shall be staked and flagged on the day the New Survey is undertaken. Buyer shall
695 have until the New Survey Objection Deadline to review and approve the matters revealed by the New Survey
696 pursuant to the terms and conditions of Section 9.3 hereof.
697
698 D. § 10. PROPERTY DISCLOSURE, INSPECTION, INDEMNITY, INSURABILITY, DUE DILIGENCE, BUYER DISCLOSURE AND
699 SOURCE OF WATER. Buyer's right to object and/or terminate under§ 10.3 and/or§ 10.6.2 is not limited to Buyer's
700 satisfaction with the physical condition of the Property and Inclusions or the Due Diligence Documents, or any other
701 matters specified in clauses(1)through (5)of§10.3; rather, Buyer's right to object and/or terminate under each of§
702 10.3 and 10.6.2 includes Buyer investigating, reviewing and becoming satisfied with ANY feature of or matter relating
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703 to the Property,the Inclusions or the Due Diligence Documents and ANY other factor deemed by Buyer to be relevant
704 to Buyer's acquisition of the Property and Inclusions, including,without limitation,the actual lot size, location and
705 square footage of improvements, building, zoning and allowed use regulations, septic,environmental (such as
706 presence on the Property of mold, radon gas, asbestos, petroleum products, methamphetamine and/or byproducts
707 from the production of methamphetamine-and the Buyer's right to object and terminate under this Contract
708 provision applies, inter alia, even if methamphetamine contamination has been remediated to meet the standards
709 established by rules of the State Board of Health promulgated pursuant to§ 25-18.5-102,C.R.S. -or other hazardous
710 substances or materials)or soils matters,the presence or absence on or about the Property of radiant heating
711 systems(e.g. Entran ll),electromagnetic fields{proximity to power lines),termites or other infestations,exterior
712 insulation and finish systems(e.g. artificial stucco), polybutylene plumbing materials, roofing materials(e.g. Woodruf
713 shingles), proximity to a flood plain or hazardous waste site,the presence and location on the Property of carbon
714 monoxide alarms, the availability and quality of schools,the impact of air traffic,the dues,fees,taxes or similar
715 charges that are or may be assessed or levied by any applicable association or taxing authority,crime statistics(such
716 as"Megan's Law"which provides that information concerning the location of known sex offenders be available from
717 local law enforcement),and other similar matters.The phrase, "in Buyer's sole subjective discretion" is hereby
718 amended in each place it exists in %10.3, 10.5 and 10.6 to instead read, "in Buyer's subjective and absolute sole
719 discretion,"and such amended standard (Buyer's subjective and absolute sole discretion)will apply not only with
720 respect to the physical condition of the Property and Inclusions or the Due Diligence Documents,or other matters
721 specified in clauses(1)through (5)of§10.3, but also,as indicated above, with respect to ANY feature of or matter
722 relating to the Property,the Inclusions or the Due Diligence Documents and ANY other factor deemed by Buyer to be
723 relevant to Buyer's acquisition of the Property and Inclusions. Seller must promptly disclose,as they occur,any
724 material, latent changes in the condition of the Property or Inclusions,or any material, latent changes relating to the
725 Property, Inclusions, Due Diligence Documents or other items listed or described above of which Seller has actual
726 knowledge, but without duty of inquiry.
727
728 E. Seller shall be responsible for the change in use of the Property to eliminate any affordable housing on the
729 517 Property and residential use of the 517 Property and Buyer shall cooperate with the 517 Seller in connection
730 ' therewith.The Property shall be delivered to the Buyer at Closing with all entitlements in place for commercial use
731 only and Buyer shall cooperate with Seller in connection therewith. Buyer shall be responsible for any fees related to
732 affordable housing mitigation for the entire Project(as hereinafter defined) and the same shall be paid by Buyer
733 when due to the City of Aspen per City ordinance (i.e. upon issuance of the building permit). Buyer shall also pay
734 when due all permit and impact fees and costs for the entire Project.
735
736 F. For purposes of this Contract,the lands currently owned by the 517 Seller,consisting of Lots D, E and F, Block
737 94,City and Townsite of Aspen, County of Pitkin, State of Colorado, shall be referred to as the "517 Lands" and the
738 lands currently owned by the 204 Seller, consisting of Lots A, B, and C, Block 94,City and Townsite of Aspen, County
739 of Pitkin,State of Colorado,shall be referred to as the"204 Lands". The Contract and a portion of the Purchase Price
740 are for Buyer's purchase of a condominiumized portion of the existing building on the 204 Lands, and a
741 condominiumized portion of a building to be constructed on the 517 Lands, which shall include all of such newly-
742 constructed building, but excluding three condominiumized ground level retail spaces to be retained by Seller. The
743 condominiumized portion of the existing building on the 204 Lands shall consist of an existing, approximately 5,292
744 square foot,enclosed portion of the second-floor of such building together with the approximately 3,468 square foot
745 rooftop deck adjacent to the second floor enclosed space,and approximately 122 square feet on the ground floor of
746 such building(which areas are shown on Exhibit A attached hereto), which as of Closing, shall be in a broom-clean
747 condition,with all existing fixtures,furniture, and appliances removed, and which second floor space shall be open
748 to, and contiguous with the second floor of the 517 Property. For purposes of this Contract, the to be constructed
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749 building on the 517 Lands,and related improvements, including both the 517 Property and the portion of the newly-
750 constructed building on the 517 Lands to be retained by the 517 Seller,and any related improvements to be made to
751 the existing building located on the 204 Lands in order to provide for the second floor of the 204 Property to be open
752 to,and contiguous with,the second floor of the 517 Property(including all of Buyer's tenant improvement work to
753 be performed by Seller hereunder) shall be collectively referred herein as the "Project".
754
755 G. Pursuant to the Prior Contract,the 517 Seller has previously provided Buyer with copies of all printed
756 information in Seller's possession relating to the 517 Lands and the portion of the Project to be located thereon,
757 including: existing government and development approvals for the 517 Lands and the portion of the Project to be
758 constructed on the 517 Lands,any current development application materials with respect to the portion of the
759 Project to be constructed on the 517 Lands,and the construction schedule for the portion of the Project to be
760 constructed on the 517 Lands. Buyer and the Seller shall attempt to agree upon and execute a "Design and
761 Construction Operating Agreement", prior to the Due Diligence Documents Resolution Deadline,that will address but
762 is not limited to, development of final architectural and construction plans and specifications,Change Order, billing,
763 cost transparency,and collaboration between the Seller and Buyer during the entire development process. If the
764 parties do not execute such Design and Construction Operating Agreement prior to the Due Diligence Documents
765 Resolution Deadline,the Buyer or Seller may terminate this Contract by delivering written notice of such termination
766 to the other party not later than ten (10) days after the Due Diligence Documents Resolution Deadline; provided
767 however,that not later than three (3)days after the Due Diligence Documents Resolution Deadline, such terminating
768 party has first delivered to the non-terminating party a written description,setting forth in reasonable detail, the
769 reason(s)for such terminating party's dissatisfaction with the form,or terms and conditions of,or any other matter
770 relating to,the Design and Construction Operating Agreement. During the period of time between the terminating
771 party's delivery of the reason(s)for such terminating party's dissatisfaction with the form,or terms and conditions of,
772 or any other matter relating to,the Design and Construction Operating Agreement and the expiration of the
773 previously-described ten-day period,the terminating party shall engage in commercially reasonable,good faith
774 negotiations with the other party to attempt to resolve such dissatisfaction.
775 H. Buyer and the Seller contemplate that the Buyer's desired tenant improvements for the build-out of the 517
776 Property(beyond the base building work to be performed by Seller,which base building work shall be reflected in the
777 Design and Construction Operating Agreement to be agreed upon by the parties as provided for herein)shall cost
778 between $100 and $150 psf. Prior to the expiration of the Due Diligence Documents Resolution Deadline, Buyer and
779 Seller shall determine (i)the scope and budget for Buyer's desired tenant improvements to the 517 Property, which
780 will be constructed by the Seller at Buyer's cost,and (ii)the scope of the tenant improvements to the 204 Property,
781 which will be constructed by the Seller at Seller's cost. Notwithstanding the foregoing,the Seller shall provide to
782 Buyer a build-out allowance of$100 per gross square foot(based on the square footage of the 517 Property,
783 excluding any balcony space)of construction costs for Buyer's tenant improvements on the 517 Property, and any
784 amount in excess of this amount(including without limitation all architectural and engineering costs and other soft
785 and hard costs relating to the tenant improvements)shall be at Buyer's expense.
786 I. Closing Date: On or before May 31, 2020,the Seller shall use diligent efforts to achieve Substantial
787 Completion of the Project. Closing shall occur 30 days from the date when the Seller provides Buyer with written
788 notification of the Seller's achieving Substantial Completion of the Project. Buyer shall cooperate with the Seller in
789 connection with the Seller's achieving Substantial Completion of the Project. For purposes of this Contract,
790 "Substantial Completion" of the Property shall mean when the Seller's architect has provided a written certification
791 that, subject to the Punchlist work provided for in Section 30J immediately below,the 517 Property and the 204
792 Property are sufficiently complete in accordance with the with the plans and specifications for the Project described
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1793 in Section 30.G hereof(as the same may be revised pursuant to Section 30.N hereof)such that the Buyer can
794 commence beneficial use and occupancy of the Property as intended.
795 J. PUNCH LIST. After Substantial Completion of the Project, and not later than ten (10) business days prior to Closing,
796 Buyer and Seller shall make an inspection of the Property to determine the extent to which the Property has been
797 completed in accordance with the plans and specifications for the Project described in Section 30.G hereof(as the
798 same may be revised pursuant to Section 30.N hereof),and based on such inspection,shall prepare a "punch list" as
799 to any construction not so completed or as to any defects in workmanship or materials and provide copies thereof to
800 the Seller. Buyer shall have the opportunity thereafter to make subsequent site visits to confirm the status of Seller's
80l progress in addressing the matters identified on the punch list.With respect to any"punch list"work not completed
802 five (5) business days prior to Closing, Buyer(or an architect or contractor selected by Buyer licensed in Colorado
803 having offices in Aspen, Colorado)shall identify such items and establish an amount of money to be escrowed with
804 Closing Company(acting as"Escrow Agent")at Closing for completion of the"punch list"work,which amount shall
805 be one hundred fifty percent (150%) of the estimated cost thereof and shall give the Seller a copy thereof not later
806 than three (3) business days prior to Closing. In the event the Seller shall disagree with the amount of money to be
807 escrowed,then prior to Closing,the Seller shall give Buyer written notice of such disagreement,together with a
808 determination of the amount of money necessary to complete the work prepared by the Seller's architect, in which
809 case the amount to be escrowed at Closing shall then be 150%of the average of the amounts determined by Buyer's
810 architect and the Seller's architect.The Seller shall,as promptly as possible after Closing but in no event later than 60
811 days after Closing(unless due to strike, unavailability of materials or other force majeure event),complete all work
812 identified on the "punch list". Should the Seller desire to utilize any of the escrow funds to pay for completed "punch
813 list" work,the Seller shall submit invoices for such work to Escrow Agent with copies to Buyer and unless Buyer shall
814 object within three(3) days after receipt of such copies, Escrow Agent shall pay the invoices directly to the contractor
815 named thereon or the Project Contractor. Any objection to payment by Buyer shall be in writing specifying the
816 reasons for such objection and shall be provided to Seller and Escrow Agent. Upon timely completion of all"punch
817 list"work,the Seller shall give notice thereof to Buyer,and the 517 Seller shall be entitled to the payment of the
818 remaining escrow funds within three (3) business days after the notice of completion has been given to Buyer unless
819 .Buyer sooner objects. In the event Buyer so objects to the completion of any specific item or items on the "punch
820 list,"all escrow funds shall be paid to the Seller except for an amount equal to one hundred fifty percent (150%)of
821 the amount associated with the objected to "punch list" item or items. Buyer shall have all remedies under this
822 Contract and at law if the Seller fails to timely complete the "punch list"work. At Closing,the Seller and the Buyer
823 shall enter into mutually acceptable escrow instructions to Escrow Agent to carry out the provisions hereof; provided
824 however,that any failure to agree as to such instructions shall not be grounds for termination of the Contract and
825 instead,the provisions hereof shall be deemed to be such instructions and shall be interpreted in a commercially
826 reasonable manner to carry out the intent hereof. The parties also agree, if requested by Escrow Agent,to execute
827 at Closing any standard form escrow agreement customarily used by Escrow Agent to carry out the provisions of this
828 paragraph.
829 K. Pursuant to the Prior Contract,the 517 Seller has previously provided Buyer with the form of construction
830 warranty that will be provided to Buyer at Closing. The construction warranty shall cover a period of two years after
831 the date of Substantial Completion of the Property.
832 L. The Seller agrees to follow all local and other applicable building codes, rules and regulations with respect to
833 the Project. Buyer shall assist the Seller with facilitating any possible acceleration of the building permit process and
834 any change orders, including, without limitation,any permits or variances necessary to attach the second floor of the
835 204 Property to the second floor of the 517 Property.
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836 M. The 517 Seller shall have the New Survey of the 517 Lands updated as an as-built survey once the
837 construction of the Project is complete. The 517 Seller shall deliver the as-built survey to Buyer on or before the date
838 the Certificate of Occupancy is delivered to Buyer. The 517 Seller shall cause to be corrected any encroachments or
839 easements not shown on the Survey delivered to Buyer under the"Current Survey Deadline"or which were
840 otherwise approved by Buyer.
841 N. The Seller shall keep Buyer reasonably apprised of the status of development of the Project and shall
842 promptly notify Buyer of any material changes to the construction plans or schedule. Buyer shall have access to the
843 site on the 517 Lands and the 204 Property for construction observation upon reasonable prior notice to the Seller.
844 The Seller is responsible for design coordination and any design omissions to deliver a complete project that meets
845 all applicable laws and ordinances. Buyer will be responsible for the cost of any changes to the plans requested by
846 Buyer as such costs are incurred, including the costs and damages due to any delays in the schedule caused by such
847 requested changes. In no event shall the Seller be required to implement any Buyer requested changes to the plans
848 which adversely impact the portion of the property to be retained by the 517 Seller or the 204 Seller or which
849 materially delays the Project schedule.
850 O. Notwithstanding anything herein to the contrary, in addition to the costs of all items specifically set forth
85.1 herein to be Buyer's cost, such as tenant improvements in excess of$100 per square foot for the 517 Property and
852 the 204 Property, permit fees, impact fees and affordable housing mitigation costs("Buyer Costs"), Buyer shall also
853 pay, as and when incurred (in accordance with the mechanism set forth below),the costs of developing the Project
854 (including, without limitation, all architectural fees, engineering fees, development management fees and other soft
855 costs, and hard costs of construction) up to the sum of$10,000,000. All such costs in excess of$10,000,000 shall be
856 paid by the 517 Seller(and by 204 Seller as to the 204 Property) after Buyer has fully funded the initial$10,000,000
857 of such costs. At Closing, all development costs paid by Buyer pursuant to this paragraph (excluding Buyer Costs)
858 shall be credited against the portion of the Purchase Price allocated to Buyer's purchase of the 517 Property. Buyer
859 shall fund the foregoing development costs in installments(not more than monthly)within 20 days after the Seller
860 delivers to Buyer(i)a sworn owner's statement setting forth the development costs incurred by the Seller during
861 such period (together with invoices or other materials verifying such costs),and (ii) if such draw includes construction
862 costs, a sworn statement from Seller's general contractor setting for the construction costs incurred during such
863 period, and a certificate of payment issued by the Seller's architect certifying as to such work performed by such
864 general contractor. Without limiting the foregoing, in the event Buyer terminates the Contract prior to the expiration .
865 of the Due Diligence Documents Resolution Deadline, Buyer's obligation to pay for development costs incurred by
866 the Seller under this paragraph shall include all development costs incurred by the Seller between MEC and such
867 termination of this Contract by Buyer,which obligation shall survive the termination of this Contract. Buyer shall be
868 responsible only for the costs incurred that are approved by Buyer prior to the work being done. The Seller shall
869 provide Buyer with a schedule of costs to be incurred prior to the work being performed. In the event of any
870 termination of the Contract under this Contract pursuant to which Buyer is entitled to the return of the Earnest
871 Money, Seller shall be entitled to be paid from the Earnest Money any amounts due to Seller under this Section 30(0)
872 which have not theretofore been reimbursed by Buyer.
873 P. Not later than twenty-one(21)days after the MEC Date,Seller shall deliver to Buyer: (a)copies of proposed
874 declarations of protective covenants for the completed Project and the 517 Property and the 204 Property(the
875 "Declarations"); (b) proposed articles of incorporation and by-laws for Colorado nonprofit corporations which shall
876 act as condominium associations with respect to the completed Project and the 517 Property and the 204 Property;
877 and (c) and any other condominium documents pertaining to the 517 Property,the 204 Property,and the Project
878 (collectively,the "Governance Documents"). The final Governance Documents shall be subject to Buyer's right to
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879 object to such Governance Documents prior to the expiration of the Due Diligence Documents Resolution Deadline.
880 Not later than forty-five (45)days prior to Closing,Seller shall also provide for the preparation and delivery to Buyer
881 of proposed forms of"Condominium Map" providing"as-built" depictions of the Project in a three-dimensional
882 format and depicting the boundaries of the Project's legally separate units on the 517 Land and the 204 Land,
883 including the location and boundaries of the 517 Property and the 204 Property.
884 Prior to Closing,Seller will record the Declarations and the Condominium Maps in the real property records of
885 Pitkin County, Colorado. The recorded Declarations shall be in a form substantially identical to version of the
886 Declarations reviewed and approved by Buyer,and the Condominium Maps shall correctly depict the 517 Property and
887 the 204 Property, and Buyer agrees that Seller's recording of the Declarations and Condominium Maps shall not give
888 rise to a Record Title Objection under Section 8.2 hereof._
889
890 Ct. In the event of any inconsistency between a provision of this Section 30 and other portions of this Contract,
891 the terms and conditions of this Section 30 shall govern and control.
892
893 R. Future payments due under this Contract are subject to and conditioned upon the appropriation of funds by
894 Aspen City Council for the year in which the payment is due. If Aspen City Council fails to appropriate such funds in
895 any year prior to Closing, Buyer shall immediately notify Seller of the same. In such event,either Buyer or Seller may
896 elect to terminate this Contract by delivering written notice of such termination to the other party not later than ten
897 (10)days after Buyer delivers notice to Seller of Buyer's failure to obtain Aspen City Council's appropriation of funds
898 in which event the Earnest Money shall be released to Seller and all other amounts paid by Buyer pursuant to this
899 Contract(including, without limitation, Buyer's Costs and all development costs paid by Buyer pursuant to Section
900 30.0 above)shall be forfeited. Notwithstanding the foregoing, if such failure to appropriate funds by Aspen City
901 Council occurs after Closing, Buyer shall be liable for all damages owed to MDA under the JDA(as defined below),
902 which are due to a breach by Buyer under the JDA.
903 S. Upon the parties' mutual execution of this Contract,the Prior Contract shall be deemed terminated, and of
904 no further force or effect(excluding Buyer's obligation to reimburse Seller for development costs pursuant to Section
905 30(0)of the Prior Contract).
906 T. Joint Development Agreement:Armory Building Redevelopment Project. From and after the MEC Date
907 hereof and for a period of time ending on the Due Diligence Documents Resolution Deadline, Buyer and MDA shall
908 negotiate in good faith for: (1)the preparation of the terms and conditions of a Joint Development Agreement(the
909 "JDA")setting forth the terms and conditions of MDA's performance of,and the City's payment for,the Armory
910 Building Redevelopment Project for a total stipulated sum price of$12,500,000; and (2) an agreed-upon scope of
911 work which shall constitute the Armory Building Redevelopment Project. The Buyer's and MDA's mutual approval of
912 the JDA and the scope of work which shall constitute the Armory Building Redevelopment Project shall be solely
913 evidenced by the Buyer's and MDA's mutual execution of the JDA which sets forth such scope of work, not later than
914 the end of the Due Diligence Documents Resolution Deadline. Buyer shall pay to MDA a$2,500,000 non-refundable
915 payment under the JDA at the Closing, which payment shall be an express condition precedent to Seller's obligation
916 to proceed to Closing. If Buyer defaults under the JDA prior to Closing (note—Buyer shall have no right to terminate
917 the JDA for convenience), Buyer shall pay to MDA all amounts owed under the JDA for work performed plus the sum
918 of$2,500,000 as liquidated damages, which payment shall be a condition to Seller's obligation to proceed to Closing.
919 If the parties do not execute the JDA prior to the end of the Due Diligence Documents Resolution Deadline,then
920 either the Buyer or Seller may terminate this Contract by delivering written notice of such termination to the other
921 party not later than ten (10)days after the end of the Due Diligence Documents Resolution Deadline; provided
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922 however,that not later than three (3)days after the end of the Due Diligence Documents Resolution Deadline,such
923 terminating party has first delivered to the non-terminating party a written description, setting forth in reasonable
924 detail,the reason(s)for such terminating party's dissatisfaction with the form,or terms and conditions of, or any
925 other matter relating to,the JDA and/or the scope of the Armory Building Redevelopment Project. During the period
926 of time between the terminating party's delivery of the reason(s)for such terminating party's dissatisfaction with the
927 form,or terms and conditions of, or any other matter relating to,the JDA and/or the scope of the Armory Building
928 Redevelopment Project and the expiration of the previously-described ten-day period,the terminating party shall
929 engage in commercially reasonable,good faith negotiations with the other party to attempt to resolve such
930 dissatisfaction. If such dissatisfaction is not resolved,which satisfaction shall be evidenced solely by the Buyer's and
931 MDA's mutual execution of the JDA,this Contract shall thereupon terminate, and Buyer shall receive the refund of
932 Buyer's Earnest Money hereunder.
933 U. At Closing, Buyer shall grant to(i)517.Seller(and its successors and assigns) a right of first refusal to purchase the
934 517 Property and (ii) 204 Seller(and its successors and assigns)a right of first refusal to purchase the 204 Property, in
935 the event Buyer ever desires to sell the same. The terms and provisions of such rights of first refusal shall be set
936 forth in Rights of First Refusal Agreements("ROFO Agreements")to be negotiated by the parties(and the form of
937 which shall be agreed upon) prior to the end of the Due Diligence Documents Resolution Deadline. The ROFO
938 Agreements(in the form agreed upon prior to the end of the Due Diligence Documents Resolution Deadline)shall be
939 executed by Buyer and Seller at and as a condition to Closing.
940 31. ATTACHMENTS.
941 31.1. The following attachments area part of this Contract:N/A.
942
943 Exhibit A-Depiction of existing,approximately 5,302 square foot,enclosed portion of the second-floor of existing building
944 located on 204 Lands,and depiction of approximately 233 square feet enclosed portion on the ground floor of such building.
945
946 31.2. The following disclosure forms are attached but are not a part of this Contract:N/A.
947
948 SIGNATURES
949
Buyer's Name: City of Aspen Buyer's Name:
r� By: Steve Barwick,City Manager
Buy 's Signature Date Buyer's Signature Date
Address: Address:
Phone No.: Phone No.:
Fax No.: Fax No.:
Email Address: Email Address:
950 [NOTE: If this offer is being countered or rejected,do not sign this document.Refer to§321
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951
952 Solely as to the visions of Section 30.T he f.
953 M Developmefit Aspen, LLC,a Colota tmited liability company
954
955 By:
956
957
Seller's N me: 517 East Ho en,LLC Seller'sNam 2Galenat,LLC
Z-/8 Z /c3
Seller's Signature--- Date eller's S1 ture Date
Address: Address:
Phone No.: Phone No.:
Fax No.: Fax No.:
Email Address: Email Address:
958
959 32. COUNTER;REJECTION. This offer is ❑Countered ❑ Rejected.
960 Initials only of party(Buyer or Seller)who countered or rejected offer
961 END OF CONTRACT TO BUY AND SELL REAL ESTATE
33. BROKER'S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE.
(To be completed by Broker working with Buyer)
Broker ❑ Does ® Does Not acknowledge receipt of Earnest Money deposit.and, while not ap",.tethe!`...."et
. Broker agrees that if Brokerage Firm is the Earnest Money
Holder and, except as provided in § 24, if the Earnest Money has not already been returned following receipt of a Notice to
Terminate or other written notice of termination,Earnest Money Holder will release the Earnest Money as directed by the written
mutual instructions. Such release of Earnest Money will be made within five days of Earnest Money Holder's receipt of the
executed written mutual instructions;provided the Earnest Money check has cleared.
Broker is working with Buyer as a ® Buyer's Agent ❑ Seller's Agent ❑Transaction-Broker in this transaction.
❑This is a Change of Status.
Brokerage Firm's compensation or commission is to be paid by ❑Listing Brokerage Firm ®Buyer ❑Other
Brokerage Firm's Name: Aspen Snowmass Sotheby's International Realty
Broker's Name: Andrew Ememann
6/4/2018
Broker's Signature Date
Address: 415 East Hyman Avenue
Aspen,CO 81611
Phone No.: 970-379-8125
Fax No.: 888-550-2881
Email Address: Andrew.emcmannna,sothebysrealty.com
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34. BROKER'S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE.
(To be completed by Broker working with Seller)
Broker ❑ Does ❑ Does Not acknowledge receipt of Earnest Money deposit and, while not a parry to the Contract,agrees to
cooperate upon request with any mediation concluded under § 23. Broker agrees that if Brokerage Firm is the Earnest Money
Holder and, except as provided in § 24, if the Earnest Money has not already been returned following receipt of a Notice to
Terminate or other written notice of termination,Earnest Money Holder will release the Earnest Money as directed by the written
mutual instructions.Such release of Earnest Money will be made within five days of Earnest Money Holder's receipt of the
executed written mutual instructions,provided the Earnest Money check has cleared.
Broker is working with Seller as a ❑ Seller's Agent ❑Buyer's Agent ❑Transaction_Broker in this transaction.
❑This is a Change of Status.
Brokerage Firm's compensation or commission is to be paid by ❑ Seller ❑Buyer ❑Other
Brokerage Firm's Name:
Broker's Name:
Broker's Signature Date
Address:
Phone No.:
Fax No.:
Email Address:
962
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