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HomeMy WebLinkAboutresolution.council.060-08RESOLUTION # ~ ~ (Series of 2008) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND MORRIS & FYRWALD REAL ESTATE SETTING FORTH THE TERMS AND CONDITIONS REGARDING REAL ESTATE BROKER SERVICES AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Morris & Fyrwald Real Estate, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Morris & Fyrwald Real Estate regarding real estate broker services a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: ~- ~©~ ~/~~ Michael C. Ireland Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk 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 June 23, 2008. K S. Koch, City Clerk Morris & Fyrwald Real Estate 415 East Hyman Avenue Aspen, CO 81611 Phone:970-925-6060, Fax:970-925-3138 1 2 3 4 5 6 7 8 9 10 11 12 The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission. (BC 60-04-OS) THIS IS A BINDING CONTRACT. THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. Compensation charged by real estate brokerage firms is no[ set by law. Such charges are established by each real estate brokerage firm. DIFFERENT BROKERAGE RELATIONSHIPS ARE AVAILABLE WHICH INCLUDE BUYER AGENCY, SELLER AGENCY ORTRANSACTION-BROKERAGE. EXCLUSIVE RIGHT-TO-BUY CONTRACT (ALL TYPES OF PROPERTIES) ® BUYER AGENCY ~ TRANSACTION-BROKERAGE Dale: T"^~ ~~, Anna I. AGREEMENT. Buyer and Brokerage Firm enter into this exclusive, irrevocable contract as of the date set forth above. 2. BROKER AND BROKERAGE FIRM. ® a. Multiple-Person Firm. If [his box is checked, the individual designated by Brokerage Firm [o serve as the broker of Buyer and to perform [he services for Buyer required by [his contract is called Broker. If more than one individual is so designated, then references in [his contract [o Broker shall include all persons so designated, including substitute or additional brokers. The brokerage relationship exists only with Broker and does not extend to the employing broker, Brokerage Firm or to any other brokers employed or engaged by Brokerage Firm who aze not so designated. ~ b. One-Person Firm. If this box is checked, Broker is a real estate brokerage firm with only one licensed natural person. References in this contract to Broker or Brokerage Firm mean both the licensed natural person and brokerage firm, who serve as the broker of Buyer and perform [he services for Buyer required by this contract. 35 3. DEFINED TERMS. 36 37 a. Buyer: City of Aspen 38 39 40 41 42 43 44 45 46 and any other person or entity on whose behalf the named party acts, directly or indirectly, [o Purchase the Property. b. Brokerage Firm: c. Broker: d. Property. Property means real estate that substantially meets the following requirements or similar real estate acceptable to Buyer: Suitable employee housing locations as is determined by the City. 47 48 e. Purchase. Purchase means the acquisition of any interest in the Property or the creation of the right to acquire 49 any interest in the Property (including a contract or lease). It also includes an agreement to acquire any ownership 50 interest in an entity that owns the Property. 51 PREPARED BY: Greg Hunter, Broker No. BC60-04-06 EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission ReaIFA$TQD Software, ®2008, Version 6.16. Software Registeretl to: Craig Morris, Morris 8 Fynvaltl Real Estate Buyer(s) 06/16/08 13:07:16 Page 1 of 6 52 E Term. The Term of this contract shall begin on T^^° 's ~ '""" ,and shall continue through [he 53 earlier of (1) completion of [he Purchase of [he Property or (2) .,^^° ~s ~""Q .Broker shall continue [o 54 assist in [he completion of any transaction for which compensation is payable [o Brokerage Firm under § 8 of [his 55 contract. 56 57 g. Applicability of Terms. A check or similar mark in a box means that such provision is applicable. The 58 abbreviation "N/A" means not applicable. The abbreviation "MEC" (mutual execution of this contract) means the latest 59 date upon which [he parties have signed this contract. 60 61 4. BROKERAGE SERVICES AND DUTIES. Brokerage Firm, acting through Broker, shall provide brokerage 62 services [o Buyer. Broker, acting as either aTransaction-Broker or a Buyer's Agent, shall perform the following 63 Uniform Duties when working with Buyer: a. Broker shall exercise reasonable skill and care for Buyer, including but no[ limited to [he following: (1) Performing [he terms of any written or oral agreement with Buyer; (2) Presenting all offers to and from Buyer in a timely manner regardless of whether Buyer is already a party to a contract [o Purchase [he Property; (3) Disclosing [o Buyer adverse material facts actually known by Broker; (4) Advising Buyer regarding the transaction and to obtain expert advice as to material matters about which Broker knows but the specifics of which are beyond [he expertise of Broker; (5) Accounting in a timely manner for all money and property received; and (6) Keeping Buyer fully informed regarding [he transaction. 75 b. Broker shall no[ disclose the following information without the informed consent of Buyer: 76 (1) That Buyer is willing to pay more than the purchase price offered for the Property; 77 (2) What Buyer's motivating factors are; 78 (3) That Buyer will agree to financing terms other than those offered; 79 (4) Any material information about Buyer unless disclosure is required by law or failure to disclose such 80 information would constitute fraud or dishonest dealing; or 81 (5) Any facts or suspicions regarding circumstances that could psychologically impact or stigmatize [he 82 Property. c. Buyer consents [o Broker's disclosure of Buyer's confidential information to the supervising broker or designee for [he purpose of proper supervision, provided such supervising broker or designee shall no[ further disclose such information without consent of Buyer, or use such information [o [he detriment of Buyer. d. Broker may show properties in which the Buyer is interested [o other prospective buyers without breaching any duty or obligation [o such Buyer. Broker shall not be prohibited from showing competing buyers the same property and from assisting competing buyers in attempting [o purchase a particular property. e. Broker shall no[ be obligated to seek other properties while Buyer is already a parry to a contract to purchase property. 95 f. Broker has no duty [o conduct an independent inspection of [he Property for the benefit of Buyer and has no 96 duty to independently verify [he accuracy or completeness of statements made by a seller or independent inspectors. 97 Broker has no duty to conduct an independent investigation of Buyer's financial condition or to verify the accuracy or 98 completeness of any statement made by Buyer. 99 100 g. Broker shall disclose [o any prospective seller all adverse material facts actually known by Broker, including but 101 not limited to adverse material facts concerning Buyer's financial ability to perform the terms of the transaction and 102 whether Buyer intends [o occupy [he Property as a principal residence. 103 104 h. Buyer shall not be liable for [he acts of Broker unless such acts are approved, directed or ratified by [he Buyer. 105 106 5. ADDITIONAL DUTIES OF BUYER'S AGENT. If the Buyer Agency box at the top of page 1 is checked, 107 Broker is a limited agent of Buyer, with [hc following additional duties: 108 109 a. Promoting the interests of Buyer with the utmost good faith, loyalty and fidelity. 110 PREPARED BY: Greg Hunter, Broker No. BC60-04-05 EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission Rea1FA$T® Software, ©2008, Version 6.16. Software Registered to: Craig Morris, Morris & Fyrwald Real Estate Buyer(s) 06/16/06 13:07:16 Page 2 of 6 111 b. Seeking a price and terms that are acceptable to Buyer. 112 113 c. Counseling Buyer as [o any material benefits or risks of a transaction that are actually known by Broker. 114 115 6. BROKERAGE RELATIONSHIP. 116 117 a. If the Buyer Agency box at [he top of page 1 is checked, Broker shall represent Buyer as a Buyer's Agent. If the 118 Transaction-Brokerage box at the top of page 1 is checked, Broker shall ac[ as aTransaction-Broker. 119 120 b. In-Company Transaction-Different Brokers. When the seller and Buyer in a transaction are working with 121 different brokers, those brokers continue to conduct themselves consistent with the brokerage relationships they have 122 established. Buyer acknowledges that Brokerage Firm is allowed to offer and pay compensation [o brokers within 123 Brokerage Firm working with a seller. 124 125 c. In-Company Transaction -One Broker. If the seller and Buyer are both working with the same broker, 126 Broker shall function as: 127 128 (1) BUYER'S AGENT. If the Buyer Agency box a[ [he [op of page 1 is checked, [he parties agree the 129 following applies: 130 131 Check One Box Only 132 133 ^ (a) Buyer Agency. If this box is checked, Broker shall represent Buyer as Buyer's Agent and shall treat 134 the seller as a customer. A customer is a party to a transaction with whom Broker has no brokerage relationship. Broker 135 shall disclose to such customer Broker's relationship with Buyer. 136 137 ^ (b) Buyer Agency Unless Brokerage Relationship with Both. If [his box is checked, Broker shall 138 represent Buyer as Buyer's Agent and shall treat the seller as a customer, unless Broker currently has or enters into an 139 agency or Transaction-Brokerage relationship with [he seller, in which case Broker shall ac[ as a Transaction-Broker, 140 performing [he duties described in § 4 and facilitating purchase transactions without being an advocate or agent for 141 either party. 142 143 (2) TRANSACTION-BROKER. If the Transaction-Brokerage box at the top of page 1 is checked, or in 144 the event neither box is checked, Broker shall work with Buyer as aTransaction-Broker. If the seller and Buyer are 145 working with [he same broker, Broker shall continue ro function as aTransaction-Broker. 146 147 7. BUYER'S OBLIGATIONS TO BROKER. Buyer agrees to conduct all negotiations for the Property only through 148 Broker, and to refer [o Broker all communications received in any form from real estate brokers, prospective sellers, 149 or any other source during [he Term of [his contract. Buyer represents that Buyer ^ Is ®Is Not currently a party to 150 any agreement with any other broker to represent or assist Buyer in the location or purchase of property. 151 152 8. COMPENSATION TO BROKERAGE FIRM. In consideration of [he services to be performed by Broker, 153 Brokerage Firm shall be paid as set forth in [his section, with no discount or allowance for any efforts made by Buyer 154 or any other person. Brokerage Firm shall be entitled to receive additional compensation, bonuses, and incentives paid 155 by listing brokerage firm or seller. Broker shall inform Buyer of [he fee [o be paid to Brokerage Firm and, if there is a 156 written agreement, Broker shall supply a copy to Buyer, upon written request of Buyer. 157 158 a. Check Compensation Arrangement: 159 160 ^ (1) Success Fee. Brokerage Firm shall be paid as follows: 161 162 (a) Amount. A fee equal to ~__ ~ t ~ % of the purchase price, but not less than $ n./= , 163 except as provided in subsection 8a(1)(b). 164 165 (b) Adjusted Amount. ^ See Section 17. Additional Provisions or 166 ^ Other. 167 r/= 168 169 (c) Earned. The Success Fee is earned by [he Brokerage Firm upon the Purchase of the Property and is PREPARED BY: Greg Hunter, Broker No. BC60-04-06 EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission ReaIFA$TOO Software, ©2008, Version 6.16. Software Registered to: Craig Morris, Morris & Fyrwald Real Estate Buyer(s) 06/16/08 13:07:16 Page 3 of 6 170 payable upon closing of [he transaction. If any transaction fails to close as a result of [he seller's default, with no fault on 171 the par[ of Buyer, the Success Fee shall be waived. If any transaction fails to close as a result of Buyer's default, in 1"/2 whole or in part, [he Success Fee shall no[ be waived; such fee shall be payable upon Buyer's default, but in any event 173 not later than the date that the closing of the transaction was to have owurred. 174 175 (d) Holdover. This fee shall apply [o Property contracted for during the Term of [his contract or any 176 extensions and shall also apply to Property contracted for within ~ ~^ calendar days afterthis contractexpires or is 177 terminated (Holdover Period) if the Property is one on which Broker negotiated and if Broker submitted its address or 178 other description in writing [o Buyer during [he Term. However, if a commission is earned by another real estate 179 brokerage firm acting pursuant [o an exclusive agreement with Buyer entered into during [he Holdover Period, Buyer 180 shall owe no commission to Broker under subsection 8a(1). 181 18z ~,\(~j\~a~l~~~~k~>9a[l~~y~rb~~~\~r~a,\~~v~,\\\\\\\\\\\\\~~~~,ea~~a,\t~ar~~6~~~,ae~~rbkaa~ai'6~,~aa 183 \tb\t'hl~aaaPr'eat~ti~\tb\a\?nhklr11tik3~trk~rfe~\aA$~aJ~\\\\\\\\\\\\\\\\\\\~^r),~\1Wt1vX}\l~e\s\13ay1`6~~v~r1i\tb\$)dldcl~~a 18a \~r~r~.a~aak~l~t~asaa.~b~aa~rb>~.Braltia~~a~~,~\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ lss \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ 186 \G7t \ ~\ li'e`t~1n~e~\1~e1 \>3a}~e`r~s`nhN~3ay\>g?dlte~'e~•p?vb?'elbkkbt~~tN30f~\rbt~ti?ta>\i~eb~dt~$ ~yb\ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ 187 \21a~'a11~j~N~6~dlAlebb`sl~rli},~~thls\Zdriti~c`t~'X't,i`s~ablaadt\~`$hlaYD~~A~afl`Ndt\\Da\k?e`ditbkl\~a~hi~?s`t\b~11e`r\`faas~ 188 ~ayhbl~e\tb\~#dl2e~~~akkkdhi~ila>\tV,Ss\?,~c't?o~n1 189 190 ~ (4) Other Compensation. 191 none. 192 193 b. Check Who Will Pay Compensation: 194 19s \Q\~~)\8,~6~\~t~v~~,\>§a~~~h~n>~bbri~a~a~a~ay\t~t~\>3i'n~~~e\~r~rh~~~faa~~a~r~l~~aaaae\an\~~anaa~~ 196 197 ® (2) Listing Brokerage Firm or Seller May Pay. Buyer IS Obligated to Pay. Broker is authorized and instructed 198 to request payment of the Brokerage Firm's fee from the listing brokerage firm or seller. Buyer shall be obligated [o pay 199 any portion of Brokerage Firm's fee as described above in subsection 8a which is not paid by the listing brokerage firm 200 or seller. 201 202 \D,\~)\Ll~t~rlg`l3~'ok1e~~A'15r~,~r\dr\SahAr\l~l~yyp'ay~~lr~~tiJkkYY\bb'ligb`t~rlltaT~a}~~\Btb`kbkl~haN#o`r~`ekl\tb\a6t~~r~ 203 \1'ny~rhDl~t\aT`ttta\>31b`k~k~e\'~r}t1''s\~ek\fir~krt.`tAbY)s`tili~\D?~dk\e~~.~e\'fib?n\bk~s~ll~#~~l~yD>\~A~h\t~ai~'b~~dbYlg`atcd~t~d,~~y\ 204 \131b`k~k~ge\1~r4)¢1~~~Ac, 205 206 9. LIMITATION ON THIRD-PARTY COMPENSATION. Neither Broker nor Brokerage Firm, except as set forth 207 in §8, shall accept compensation from any other person or entity in connection with the Property without [he written 208 consent of Buyer. Additionally, neither Broker nor Brokerage Firm shall be permitted to assess and receive mazk-ups 209 or other compensation for services performed by any third party or affiliated business entity unless Buyer signs a 210 separate written consent for such services. 211 212 10. COST OF SERVICES OR PRODUCTS OBTAINED FROM OUTSIDE SOURCES. Broker will no[ obtain or 213 order products or services from outside sources unless Buyer has agreed to pay for them promptly when due (examples: 214 surveys, radon tests, soil tests, title reports, engineering studies, property inspections). Neither Broker nor Brokerage 215 Firm shall be obligated to advance funds for Buyer. Buyer shall reimburse Brokerage Firm for payments made by 216 Brokerage Firm for such products or services authorized by Buyer. 217 218 11. SHOWING PROPERTIES. Buyer acknowledges that Broker has explained the possible methods used by listing 219 brokers and sellers to show properties, and the limitations (if any) on Buyer and Broker being able to access properties 220 due to such methods. Broker's limitations on accessing properties aze as follows: n^ 1 ;m; rar; ~.,a , 221 Broker, through Brokerage Firm, has access [o [he following multiple listing services and property information services: 222 Aspen bII,S, or any other source that Broker can find to locate suitable property. 223 224 12. DISCLOSURE OF BUYER'S IDENTITY. Broker ~ Does ®Dces Not have Buyer's permission [o disclose 225 Buyer's identity [o third pazties without prior written consent of Buyer. PREPARED BY: Greg Hunter, Broker No. BC60-04-05 EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission ReaIFA$T®Software, ©2006, Version 6.16. Software Registered to: Craig Morris, Morris & Fyrwald Real Estate Buyer(s) 06/16/08 13:07:16 Page 4 of 6 zz6 227 13. NONDISCRIMINATION. The parties agree not to discriminate unlawfully against any prospective seller 228 because of the race, creed, color, sex, marital status, national origin, familial status, physical or mental handicap, 229 religion or ancestry of such person. 230 231 14. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document, Buyer acknowledges 232 [hat Broker has advised that this document has important legal consequences and has recommended consultation with 233 legal and [ax or other counsel before signing [his contract. 234 235 15. MEDIATION. If a dispute arises relating to this contract, prior to or afrer closing, and is no[ resolved, the 236 parties shall firs[ proceed in good faith to submit the matter [o mediation. Mediation is a process in which [he parties 237 meet with an impartial person who helps to resolve the dispute informally and confidentially. Mediators cannot impose 238 binding decisions. The parties to the dispute must agree before any settlement is binding. The parties will jointly 239 appoint an acceptable mediator and will share equally in [hc cost of such mediation. The mediation, unless otherwise 240 agreed, shall terminate in [he event [he entire dispute is not resolved within 30 calendaz days of the date written notice 241 requesting mediation is sent by one party to [he other at the party's last known address. 242 243 16. ATTORNEY FEES. In the event of any arbitration or litigation relating to this contract, the arbitrator or court shall 244 award [o the prevailing party all reasonable costs and expenses, including attorney and legal fees. 245 246 17. ADDITIONAL PROVISIONS. (The following additional provisions have no[ been approved by the Colorado 247 Real Estate Commission.) 24$ 1) RE Section 8 (1)(a) SUCCESS FEE: Broker's commission shall be calculated on the following sliding scale: For property up to a salsa price of $5,000,000, Broker's commission shall be 2.08 of the grosa sales price; For property between $5,000,000-$10,000,000, Broker's commission shall be 1.50$ of the gross sales price; For property over $10,000,000, Broker's commission shall be 1.08 of the gross sales price. Broker agrees that any commission amount offered by the Seller ox the Listing Broker that exceeds the above guidelines shall be credited to the City, on the Closing Statement. 2) Broker and the City of Aspen shall have the option to renew this agreement for two additional 1-year terms upon the expiration of the Listing Period by mutual written agreement by both parties. Broker shall initiate the discussion for the renewal of thia agreement within 60 days of this contract's expiration date. 249 250 18. ATTACHMENTS. The following are a par[ of [his contract: 251 Buyer Addendum.. 252 253 19. NOTICE, DELIVERY AND CHOICE OF LAW. 254 a. Physical Delivery. Except for [he notice requesting mediation described in § 15, and except as provided in 255 § 19b below, any notice to the other party [o [his contract must be in writing and is effective upon receipt. 256 257 b. Electronic Delivery. As an alternative to physical delivery, any signed document and written notice may be 258 delivered in electronic form by the following indicated methods only: 259 ®Facsimile ^ E-Mail ^ None. Documents with original signatures shall be provided upon request of any party. 260 261 c. Choice of Law. This contract and all disputes arising hereunder shall be governed by and construed in 262 accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a contract in 263 this state for property located in Colorado. 264 265 20. MODIFICATION OF THIS CONTRACT. No subsequent modification of any of the terms of this contract shall 266 be valid, binding upon the parties, or enforceable unless made in writing and signed by.[he parties. 267 268 21. COUNTERPARTS. If more than one person is named as a Buyer herein, this contract may be executed by each 269 Buyer, separately, and when so executed, such copies taken together with one executed by Broker on behalf of PREPARED BY: Greg Hunter, Broker No. BC60-04-OS EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission ReaIFA$TOO Software, ©2006, Version 6.16. Software Registered to: Craig Morris, Morris 8 Fyrwaltl Real Estate Buyer(s) 06/16/0613:07:16 Page 6 of 6 270 Brokerage Firm shall be deemed to be a full and complete contract between [he paztics. 271 272 22. ENTIRE AGREEMENT. This ageement constitutes the entire contract between the parties and any prior 273 agreements, whether oral or written, have been merged and integrated into this contract. 274 275 23. COPY OF CONTRACT. Buyer acknowledges receipt of a copy of [his contract signed by Broker, including all 276 attachments. 277 278 24. MEGAN'S LAW. If the presence of a registered sex offender is a matter of concern to Buyer, Buyer understands 279 [hat Buyer must contact local law enforcement officials regazding obtaining such information. 280 281 Brokerage Firm authorizes Broker to execute [his contract on behalf of Brokerage Firm. 282 283 City of Aspen 1(///7 ) / BUYER ~~~~~~~~j-'"~' L ~ ~/J°~ DATE T ~~ 0 By: Steve Barwick, City Manager 284 Email Address: r_req~r_re,.u,,.,rerc..i err; es .. 285 286 Morris S Fyrwald Real Estate 915 East Hystan Avenue Aspen, CO 81611 Phone: 970-925-6060, Fax 9 0-925-3138 By: ~ ~ 6 a~ $lgnatUTO Greg Hunter Dale 287 Email Address: PREPARED BY: Greg Hunter, Broker No. BC60-04-05 EXCLUSIVE RIGHT-TO-BUY CONTRACT (All Types of Properties). Colorado Real Estate Commission ReaIFA$T®Software, ©2006, Version 6.16. Software Registered to: Craig Morris, Morris & Fyrwald Real Estate O6/i6/OB 13:07:16 Page 6 of 6 Morris &Fyrwald Real Estate 415 East Hyman Avenue Aspen, CO 81611 Phone:970-925-6060, Fax:970-925-3138 BUYER ADDENDUM TO EXCLUSIVE RIGHT-TO-BUY CONTRACT OR BROKERAGE DISCLOSURE TO BUYER/TENANT This "Addendum" is hereby made a part of either [he Exclusive Right-to-Buy Contract or Brokerage Disclosure to Buyer/I'enant form. In the even[ of a conflict between this Addendum and the indicated CREC approved form, this Addendum shall prevail. 1. BUYER DUE DILIGENCE. Neither Broker nor Brokerage Firm has a duty [o conduct an independent inspection of the Property, the Inclusions, the Seller's Property Disclosure form, the Listing Brokerage Firm's Well Checklist or the Title Documents for the benefit of the Buyer. Neither Broker nor Brokerage Firm has a duty to independently verify the accuracy or completeness of statements made by seller, seller's broker, independent inspectors, or other third parties, regarding: the actual lot size, location and square footage of improvements, building, caning and allowed use regulations, well (flow rate, capacity, depth, recovery rate, suitability for Buyer's needs, exempt status such as household, domestic, etc., water quahty, potability, location on property, etc.), septic (useful life of the system, capacity and suitability for size of house, pumping needs, location on property, etc.), leach field (adequacy, location on property, permla[ion, etc.), environmental (such as presence on the property of mold, radon gas, asbestos, petroleum products, methamphetamineond/or bypmducfs from the production of methamphetamine or other hazardous substances or materials) or soils matters, radian[ heating systems (e. g. Enlran II), electromagnetic fields (proximity [o power lines), termites or other infestations, exterior insulation and Snish systems (e.g. artificial stucco), polybutylene plumbing materials, roo5ng materials (e.g. Woodruf shingles), proxunily [o a flood plain or hazardous waste Bile, the availability and quality of schools, the impact of air traf5c, the dues, fees, taxes or similar charges that are or may be assessed or levied by any applicable association or taxing authority, crime statistics (such as "Megan's Law" which provides that information concerning the location of known sex offenders be available from local law enforcement), and other similar matters. 2. USE OFPROFESSIONALS. Buyer should seek the advice of professionals, such as (but no[ limited to): attorneys, accountants, mortgage lenders, exchange accommoda[ors, appraisers, surveyors, contractors, engineers, septic inspectors, well testers, water engineers, property inspectors, and environmental hazard and radon gas experts. Broker and Brokerage Firm recommend that Buyer obtain a written inspection report covering [he Property and Inclusions, and an improvement location certificate or survey to determine lot size, location of improvements, and any encroachments. Buyer should verify all informafion using experts of Buyer's own choosing. Most professions require state licensing or registration and Buyer should work with licensed or registered professionals when applicable. 3. MLS. Broker and Brokerage Firm shall only be obligated to search for Property in Multiple Listing Services ("MLS") of which Brokerage Firm is a member. 4. PROPERTY REPAIRS/IMPROVEMENTS. Buyer should obtain written cost quotations (bids) for all work Buyer intends t4 have done to [he Property [o be fully aware of the costs of such work Neither Broker nor Brokerage Firm is responsible for any recommendations as to professionals. Each professional should be able to provide Buyer with a list of pas[ customers to assist Buyer in making Buyer's own decision and selection. Buyer is advised that all work done on the Property as part of any contract should be done by licensed contractors when possible and inspected by the appropriate governmental authority. 5. HOMEOWNER'S WARRANTY. Pre-owned homewarran[yprogramsexislwhichmaybepurchasedandmaycover[herepairorreplacement of some Inclusions. Neither Broker nor Brokemge Firm is liable for [he financial integrity of such companies. Buyer is encouraged to evaluate the terms of coverage and financial strength of any company offering to issue such a warranty. 6. POSSESSION, LEASE AND INSURANCE. L: [he Possession Date and Time are other than Closing Date, Buyer should considerobtaining casualty and liability insurance and a lease for the period between Possession Date and Time, and the Closing Date. 7. BROKER PURCHASES. Broker or other agents of Brokerage Fum may, for their own account, purchase property that is available for sale, including property that may or may not have been shown to Buyer. 8. LOAN CONDITIONS. The loan contingency in the current CREC approved Contract [o Buy and Sell Real Estate (§ 5.2), conditions the Contract only upon Buyer being satisfied with the availability, terms, conditions and cos[ of any new loan to be used by Buyer to pay all or part of the Purchase Price - not on obtaining a written loan commitment and not on Buyer's new loan actually closing and/or funding. If, far example, Buyer obtains a loan commitment or decides it is satisfied without a written commitment, but the lender in either event does not fund the loan, Buyer maybe in default. 9. LOAN FRAUD. Buyer shall not engage in any conduct that could constitute loan fraud (including, but no[ limited to, material misstatements regarding Buyer's employment status, receipt of money or other value from seller without [he knowledge of Buyer's lender, or the use of an incorrect Social Security number), and Buyer shall notify Broker if Buyer teams that any other party to a transaction may be engaging in such conduct. if Broker or Brokerage Firm becomes aware that Buyer has been a part of a loan fraud, before the tmnsac[ion has closed, [he fraud shall be considered a breach of Buyer's duties to Broker and Brokerage Firm, and Broker and Brokerage Firm may immediately terminate their relationship with Buyer, so that neither Broker nor Brokerage Finn shall have any continuing duty to Buyer, and notify appropriate authorities. This addendum has not been approved by the Colorado Real Es[a[e Commission ("GREG"). I[ was prepared and ©2008 by Frascona, Joiner, Goodman and Greenstein, P.C. (303-494-3000) legal counsel, for the exclusive use of Moms &Fyrwald Real Estate. Atltlentlum to Exclusive Right to Buy Contract (BC60-04A6)/ Brokerage Disclosure to Buyer/Tenant (BD 24-111-06). PREPARED BV: Greg Hunter, Broker All rights reserved. Rea1FA$T® Software, 82008, Version 6.16. Software Registered to: Craig Morris, Morris 8 Fyrwald Real Estate Buyer(s) 06/16/08 13:07:33 Page 1 01 2 10. SELLER CONCESSIONS. Buyer acknowledges that if a contract for Buyer's purchase of the Property contains a credit or credits to be given by [he Seller or other incentives or provisions for the return of value to the Buyer, Buyer's lender may treat some or all of any such credit, incentive or return of value as a price concession, and to the extent so treated, Buyer's lender may disallow the credit, incentive or return of value, or may reduce the amount of the available loan to reflect the effective price for the Property (after deducting for such credit, incentive or return of value). Such a reduction in the loan amount would require Buyer to pay more of [he purchase price from Buyer's own funds at closing. Buyer also acknowledges [hat any and all Seller concessions must be shown on the settlement statements at closing. 11. PROPERTY USED AS METHAMPHETAMINE LABORATORY. The current CREC approved Contract to Buy and Sell Rea] Estate (§ 11) indicates that a buyer of residential real property has the right to test [he property to deteanine whether it has been used as a methamphetamine laboratory, and [he right, if the test results indicate that the property has been used as a methamphe[amine laboratory but has not been remediated to meet certain standards established by roles of the State Board of Health, to terminate [he contract (as well as the obligation with such [es[ results to promptly give written notice to the seller of the test results). If an illegal drug laboratory is deemed to have been discovered under the applicable statute regarding such me[hamphetamine laboratories, a buyer may still purchase the property, but in that even[, among other things, the buyer assumes certain obGga[ions with respect [o [he illegal dmg laboratory, [he buyer must notify the Department of Public Health and Environment of such purchase on the date of closing, and the buyer must complete required remediation of the property within 90 days after closing. Buyer should obtain [he advice of appropriate professionals, including a certified industrial hygienis[or industrial hygienist and an attorney, regarding such matters. 12. BREACH OR NONPERFORMANCE BYBUYER-SUCCESS FEE DUE. In the event of any breach or nonperformance of Buyer's obligations under this Exclusive Right-to-Buy Contract, [hen, notwithstanding any provision of this Contract to the contrary, Buyer shall be obligated to pay [he Success Fee to Brokerage Finn. The amount of [he Success Fee has been agreed upon by Buyer and Brokerage Firm as a reasonable estimate of Brokerage Firm's actual damages in the event of a breach or nonperformance of Buyer's obligations hereunder The actual amount of damages upon the occurrence of such a breach or nonperformance by Buyer is extremely dffScul[ b de[ertnine. I[ is agreed that [he recovery of such Success Fee shall be LIQUIDATED DAMAGES and, except for recovery of fees, expenses or sums paid or incurred by Brokerage Firm and owed by Buyer under §10 or §16 or some other specific provision of [his Contract, shall be Brokerage Firm's SOLE AND ONLY REMEDY for Buyer's failure to perform the obligations of this Contract. Brokerage Firm: Morris S Fyrwald Real Estate 415 East Hyman Avenue Aspen, CO 61611 Phone: 970-925-6060, Fax: 970-925-313 // By: I (O U Signature Greg Hunter Date City of Aspen i~i~ L I /~k%~w~r 7ry~ BUYER DATE ~ ~ ~J ey: Steve Barwick, City Manager This addendum has not been approved by the Colorado Real Estate Commission ("CREC"). Il was prepared and ©2008 by Frascona, Joiner, Goodman and Greenstein, P.C. (303-494-3000) legal counsel, for [he exclusive use of Moms & Fyrwald Real Estate. Addendum to Exclusive Right to Buy Contract (BC60-0405)/ Brokerage Disclosure to Buyer/Tenant (BD 2410-06). PREPARED BY: Greg Hunter, Broker All rights reserved. ReaIFA$TO Software, ©2008, Version 6.16. Software Registered to: Craig Morris, Morris & Fynvald Real Estate 06/16/08 13:07:33 Page 2 of 2 Mr. Greg Hunter 415 E. Hymen Ave. Aspen, CO. 81611 Deaz Greg, June 22, 2009 THE CITY OF ASPEN OFFICE OP THE CITY MANAGER Reference is made to that certain brokerage agreement dated June 23, 2008, between the City of Aspen and yourself. Pursuant to Pazagraph 17.2 of that agreement, the City wishes to inform you that it desires to extend the agreement for an additional one year period (June 23, 2010.) If you agree with this proposed extension, please countersign this letter and return to me. ]3O SOUTH GALPNA STREET ~ ASPEN, COLORADO R]6I1-]JZS ~ PHONE 970.92O.SZ]2 ~ PAX 970.92O.S]]9 Primed nn Rerytled Paper