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HomeMy WebLinkAboutresolution.council.082-01 RESOLUTION NO. ~.~, Series of 2001 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT TO BUY AND SELL REAL ESTATE FOR THE JOY SM/TH PROPERTY, APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ASPEN AND THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY REGARDING THE PURCHASE OF THE JOY SMITH PROPERTY, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENTS ON BEHALF OF THE CITY OF ASPEN, COLORADO. Vv-HEREAS, there has been submitted to the City Council a Contract to Buy and Sell Real Estate and an Intergovernmental Agreement between the City of Aspen and the board of County Commissioners of Pitldn County regarding the acquisition of the Joy Smith Property, copies of which are appended hereto as Exh/bits A and B and made a part thereof. NOW, WttEREFORE, BE 1T RESOLVED BY THE' CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section One That the City Council of the City of Aspen hereby approves a Contract to Buy and Sell Rea] Estate for the acquisition of the Joy Smith property appended hereto as Exhibit A. Section Two That the City Council of the City of Aspen approves the Intergovernmental Agreement between the City of Aspen and the Board of County Commissioners of Pitkin County regarding the acquisition of the Joy Smith Property appended hereto as Exhibit B. Section Three That the City Manager is hereby authorized to execute said documents on behalf of the City of Aspen. I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a tree and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held (/~,4~6 ].~ ,2001. Smith Property Acquisition INTERGOVERNMENTAL AGREEMENT JOY SMITH ACQUISITION FUNDING THIS INTERGOVERNMENTAL AGREEMENT (the "Agreement") is made this day of , 2001 by and between the Board of County Commissioners of Pitkin County, Colorado, whose address is 530 East Main Street, Aspen, Colorado 81611 ("the County") and the City of Aspen ("City"), whose ad&ess is 130 South Galena Street, Aspen, Colorado 81611. The County and City are sometimes collectively referred to as the "Governments." RECITALS I. This Agreement is entered into pursuant to, inter alia., C.R.S. §29-1-201, et seq. and Article XIV, Section 18 of the Colorado Constitution. 2. The Governments are duly constituted governmental entities, governed by Boards or Councils elected by qualified electors of the County and City mentioned above, both of which are located in Colorado. 3. Joy Smith (the "Seller") desires to sell approximately 70 acres she owns adjacent to the North Star Nature Preserve to the County for $6,745,000 to be paid as $2,495,000 at closing and a 20-year note for the balance of $4,250,000 (the "Note"), and other such terms and conditions as set forth in the Contract attached as Exhibit A to this Agreement (the "Contract"), such property (the "Property") being more fully described in the Contract. 4. The purpose of this Agreement is to set forth the respective responsibilities and obligations of the Governments relating to the funding of the acquisition of the Property. 5. The County Open Space and Trails Board of Trustees, by Resolution 01- 03, recommended to the County that it fund one-half (50%) of the price of the Property and associated costs from its Open Space and Trails fund for the acquisition of the Property, and the County, by Ordinance 24-2001, has authorized the acquisition of the Property and the participation of the County in this Agreement with the City. 6. The City, by Resolution # , Series of 2001, has agreed to fund the remaining one-half (50%)of the costs of the acquisition of the Property and the participation in this Agreement with the County. 7. This open space acquisition will be governed by Article XIII of the Pitkin County Home Rule Charter and Section 13:4 of the City of Aspen Home Rule Charter, respectively. 8. The City has taken all actions necessary to authorize the transfer of its agreed funding for use for the purchase of the Property by the County at the scheduled closing (the "Closing") pursuant to the Contract. 9. The Governments are authorized to enter into this Agreement, and have determined it is in the best interests of the citizens of Pitkin County and the City of Aspen to enter into this Agreement. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual promises and agreements of the parties and other good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. The County shall make the earnest money deposits and issue to the Seller at the Closing the Promissory Note as required by the Contract. The County shall also pay any out-of-pocket costs associated with the acquisition prior to closing and the future cost for bond counsel's opinion upon the conversion of the note to a general obligation bond. 2. At the time of the Closing the City shall pay one-half (50%) of the calculated present value of the purchase price (earnest money, cash at closing, note principal and interest payments), the County's closing costs, and any out-of-pocket costs associated with the acquisition prior to closing and the future cost for bond counsel's opinion. The City's payment shall be made by wiring to the tire company handling the Closing the amount required under the Contract from County to close and by wiring to the County the remainder of City's one-half (50%) share of the purchase price and costs at the County's bank account, the number of which will be provided to the City three (3) days prior to Closing. The present value of the purchase price and costs shall be calculated as demonstrated in Exhibit B by discounting the actual cash flow to the Closing using an annual interest rate which is the lesser of 5.3% (the yield on the County's 20-year term general obligation bonds issued in December 2000) or the yield on the City's 20-year term general obligation bonds to be issued in the summer of 2001. 3. The County will direct the Seller to deed the Property to the City and the County as tenants in common, upon receipt of the City's share of the purchase price and costs at Closing as referenced I paragraph 2 above. 4. The Governments agree to work cooperatively on a management plan for the Property, as provided in the Addendum to the Contract and agree that such plan should attempt to address the preservation of the natural features of the Property, the 2 protection of wildlife habitat on the Property, and development of any trails or other recreational features, if any, on the Property. 5. The Governments agree that, following the Closing, the development of any trails or other recreational features on the Property shall require the written consent of both parties. The Government's further agree to share equally the ongoing costs of maintaining the Property. 6. The Governments agree that the Property shall never be subdivided by legal or other means and that no partition of the Property will be sought by either Government. 7. This Agreement and the Contract may be changed or modified only in writing by an agreement approved by the respective Board or Council of the Governments and signed by authorized officers of each party. 8. Should any one or more sections or provisions of this Agreement be judicially adjudged invalid or unenforceable, such judgment shall not affect, impair or invalidate the remaining provisions of this Agreement, the intention being that the various sections and provisions hereof are severable. 9. Any notice required or permitted under this Agreement shall be in writing and shall be hand delivered or sent by registered or certified regular mail, postage pre- paid to the addresses of the parties as follows. Either party by notice sent under this paragraph may change the address to which future notices should be sent by informing the other party of such change in writing by certified U.S. Mail at the following addresses: Notice to the City of Aspen: City of Aspen c/o 130 South Galena Street Aspen, Colorado 81611 Notice to Pitkin County: Pitkin County Board of County Commissioners c/o Pitkin County Open Space and Trails Director 530 East Main Street, Third Floor Aspen, Colorado 81611 10. This Agreement may be ~xecuted in counterparts, the sum of which shall constitute the whole of this Agreement. OCT, 1.2001 12:48PM PITKIN COUNTY CLERK RECORDER N0,624 P. 2 BOARD OF COUNTY COMMISSIONERS, ATTEST: Michael Ireland,aChair ~ ~ . ~ ' ;I~ - - - D~ ty Cl~rk CITY OF ASPEN ATTEST: By: City Clerk 4 BOARD OF COUNTY COMMISSIONERS, ATTEST: PITKIN COUNTY, COLORADO By:_ Michael Ireland, Chair Jeanette Jones, Deputy Clerk CITY OF ASPEN ATTEST: By: .. ~ 4 JAMES H. SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN DRAFT- CONFIDENTIAL JAMES H. SMITH NORTH STAR OPEN SPACE INTERIM MANAGEMENT PLAN AUGUST 1, 2001 1.0 INTRODUCTION The acquisition of the 70+ acre James FI. Smith North Star Open Space ("the Property") is a highly significant conservation achievement for the upper valley. The Propert7 [inks Pitldn County's 174 acre North Stat Nature Preserve with the 65 acre Aspen Center for Environmental Studies (ACES) parcel. Together, these conserved propemes comprise a 309 acre expanse of preserved open space containing sxgnificant wetland and riparian ecological communities and xvildlife habitat, only minutes from downtown'~s~en. The North Star Nature Preserve and the Property offer oppommities for limited public recreational use, managed to minimize ~mpacts to the ecological values of the properties. This preliminary management plan reflects the significant ecological commun~ities within the Property. The regulations and management guidelines put forth in this document are based on sanple ecological assessments of the Property conducted by Stephen EllCp~an, Jonathan Lowsky, and Lisa Tasker in June 2001 as well as a familiatiry with the ecological systems that occur in the area surrounding the property. This Plan highlights those areas that are ecoi0gically important and consequently warrant conservauon emphasis and identifies some potential threats to the-l>erslstence of the hiolo~tcalv resources of the E~perty This Management Plan ts conststent wtth the management plan for the netghb0~rmg North Star Nature~Preserve and written to complement that plan. A fully developed resource management plan w~:he developed by City of Aspen and Pitkm County staff once the Property ts transferred and bmlog~cal mventortes. . are completed according to the 2000 Pttkin County Open Space Biological Inventory and Momtormg Protocols. This interim plan will serve for the first three yeats or less of public ownership, until a full Resource Management Plan is developed. 2.0 RESOURCE MANAGEMENT OBJECTIVES AND PRIORITIES · Perpetuate and restore the mosaic of high quality native plant communities. · Maintain viable populations of al1 native fauna currently liv/ng on the property. Special emphasis will be focused on great blue herons, mountain toads, sofas and other wading birds, and riparian obligate songbirds. · Maintain and restore the hydrological regime of the property that supports its ecological communities. · Promote environmental and ecological interpretive opportuuides. Provide recreational oppormmties that complement the ecological values of the open space. · Control non-native and noxious weeds via a long-range integrated pest management approach and restoration of native plant communities. · Create a seamless connection to the neighboring protected areas; Augment preservation achievements of neighboring North Star Nature Preserve and ACES property. 08/07/2001 JAMES H. SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN 3 DRAFT- CONFIDENTIAL 3.0 GENERAL DESCRIPTION OF PROPERTY 3.1 Acquisition TheJames H. Smith North Star Open Space was acquired and is managed jointly by Pitkin County Open Space and Trails and the City of Aspen. The 70-acre Property abuts the 174-acre County-owned North Star Nature Preserve. 3.1.1 Pre-Existing Encumbrances Right of Way Deed granted to Roaring Fork Water, Light and Power; December 4, 1933. Agreement between James H. Smith and Robert Lewis water rights for the purpose of irrigating land bought from Smith, and associated costs; October 7, 1976 Agreement for Use of Water Rights between James H. Smith and The Nature Conservancy; Novermber 30th, 1977 Trails and Trails Facilities Easement Agreement for the East of Aspen Trail on the eastern portion of the property; September 26, 1996. 3.1.2 Water Rights Two-thirds of a one-third interest in the U.S. Green Ditch No. 1, having a p~iority date of June i, 1948, designated as Ditch No. 405 in Water d/strict No. 38 as priori~ No. 579, adjudicated for a total of three cubic feet t)er second, subject to the Agreement for ~gation onthe adjoining 2!i acre property as recorded in Book 33~9 at Page 543. 3.2 Physical Characteristics The Property was.~storically par~ 0t~ the Larger agricultural parcel North Star Ranch which included North Star Nature Preserve and much of what ~s now the~reserve subdims~on. Much of the property still possesses signs of an agricultural past (e g, Th~ hay fields, co~als, and gravel excavation areas). With the decline of agricultural use, d/stmct willow communities have developed on the property. The Roaring Fork River meanders north and east across the property m a serpentme pattern that has deposited numerous "beaches" lming the inside of these bends in the river. The w~esrem part of the property mcludes slopes that form the toe of the Richmond Ridge. 3.2.1 Location The property is approximately 2.5 miles south east of downtown Aspen on Colorado State Highway 82 (Township 10S Range 84W Section 20). The 70 acre property hnks the 174 acre North Star Nature Preserve with a 65-acre parcel held by the Aspen Center for Environmental Stud/es. These properues once comprised North Star Ranch, establ/shed ay the Smith family in 1949. 3.2 Irrigation All water rights will be maintained for wetlands and vegetation restoration purposes. 3.3 Land Use Considerations 3.3.1 Context of Properties As stated above, the acquisition of the James H. Smith North Star Open Space is the missing element in efforts by Pitkin County and ACES to connect the North Star Nature Preserve and the ACES parcel. While the properties 08/07/2001 JAMES H. SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN 4 DRAFT- CONFIDENTIAL are owned and managed separately, together they protect over 300 acres of ~vildlife habitat and scenic open space along the Highway 82 corridor only minutes from downtown Aspen. Efforts to protect the parcels that once comprised historic North Star Ranch date back to the 1970s when James H. Smith sold 174 acres of his agricultural operation to The Nature Conservancy. TNC subsequently conveyed the Nature Preserve to Pittdn County. In 1999, Pitkm County pursued a lengthy and in-depth public process to create the North Star Resource Management Plan. Management decisions for the Property were made in the context of the permitted uses and regulations on this neighboring Nature Preserve. 3.3.2 Adjacent Land Use and Ownership The North Star Nature Preserve borders the Property to the north. The White River National Forest (WRNF) lies to the west. Most of the southern border is shared with a 65 acre parcel owned by ACES. The southeast corner abuts the Robert Lewis residence (Figure 1). The Property is bordered by Pitkin County's East of Aspen Trail to the east, with Colorado State Highway 82 running parallel to the trail. Across the highway is a strip of residential parcels that border WRNF to the east. 3.3.3 Cuxtent Leases Currently, there are no leases of any part of the property. 4.0 VEGETATIONAL RESOURCES Some general comments can be made ~bout the vegetation ~nd the vegetation communities currently occurring on the east/southeast side of the property from "walk-throughs~ and 2 willow canopy transects conducted in June 2001. One transect was sgbjectively placed in the ~o~ band along th~ Roaring Fork on the eastern-most bend of the river to get a r~resentarive sample 0£ ~h¢ 0¥erstory composition Another transect was subjectively placed m the willow/wetland area on.the east/southeast side of the property and north of the river and across from the heron rookeries~ Five species of willows have been documented on the property to date. They include Sa/ix drgmmondiana (Drummond's willow), Sa/ix monticoda (yelloxv or mountain willow2, ~ca/ix/axiandra var. ca,data (whiplash willow), ~a/ixge_yeriana (Geyer'$ ~ow), and ~Ca/ix bebbiana (Bebb willow). Two more species are near by, ~a/ix exigaa (coyote or sandbar willow) and 5a~ix bootbii (Booth's willoxv) and may be found on the property with further assessments. Finding 5-7 species of willow represents a extraordinarily diverse assemblage o£ willow species for one riparian/wetland site of this szze in Colorado. The two sites sampled were chosen due to their potential ecological significance. It appears that Drummond's willow may be the dominant willow along the Roaring Fork River banks where willows are recolonizing after a history of grazing. Continuous grazing would have eliminated much of the wi/low stands, as did management practices of that era. However Whiplash willow cover was also very high along the river site transect and may prove to be a significant part of the existing willow bands riverside. Within the willow/wetland site along the east side of the property, east of the river, Drummond's xvillow agam had the highest percent-cover on the single, sampled transect. Further investigation, however, and more transects w/Il need to be done to confirm this. Mountain willow was almost as prevalent as Drummond's along the sampled transect and may prove to be more dominant. The principal understory species appear to be Cancer or sedges, indicative of a relatively consistent high water table. Extensive fieldwork has been done in riparian and wetland plant communities in Colorado in conjunction with work in other western states that provides a wealth of insights into these plant assemblages. Subsequently these plant communities have been defined and ranked by the Colorado Natural Heritage Program (CNHP). The willow- 08/07/2001 JAMES iq. SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN 5 DRAFT- CONFIDENTIAL dominated communities cannot be placed into CNHP's riparian plant community classifications with certainty yet, but the present data indicates they will most 1/kely be placed into one of the following communities: Willow/Wetland site, southeast side of property: Sa/ix drummondiana/Carex utri~/ata Shmbland Global/State Rank: GU/S3* Drummond Willow/Beaked Sedge Sa/ix montico/a/ Camm utffcu/ata Shxubland Mountain Willow/Beaked Sedge Global/State Rank: G3/S3 ~ Willow band, east side of property, eastern most section of the Roaring Fork Privet: Salim drummondiana-Salim montico/a/ Mesic Forb Shmhland Drummond Wlllow/Mesic Forb Global/State Rank: G4/S4~ It is Lrnportant to note, however, that the Drunmaond Willow/Mesic Forb cgmmumty appears to occur only along this section of the Roaring Fork within the North Star Nature Preserve and~ Property and perhaps a relatively short distance upstream until you Ret out of the flat, ot~en, flood-~ a~as ~here other species will domimte Therefore this commumty as sagmficant wathin the Roaring FO~k~Watershed. ne willow/sedge communities on the S/SE section of the Property are exemplary, ecologically significant areas. Being considered both rare and thxeatened in Colorado, these occurrences are in excellent shape and worthy of the utmost protection and stewardship. Further inspection west of the river may yield ~eclual discoveries from a plant community perspective. Other Comments regarding vegetation: The claim can be made ~:~e tWo most ~por~nt ~orces driving plant species to ratty and extinction and then their animal-dependent co~erp~ts are .(P. Ste~ah-Edward~, 1997): 1. 1. The conversion of land for human purposes; and 2. The accidental or intentional introductions of alien, non-indigenous or non-native, and invasive species. With this in mind, the:property has elements of both of these land changes, but for the most parr the wetland and riparian plant communities are highly significant, xvith excellent examples of both state and globally ranked plant assocmnons that are in exemplary shape. The willow/wetland site, described above, as an especiaLiy exemplary example of whichever plant community ar represents, either Drummond Willow Beaked Sedge or Yellow W/llow Beaked Sedge. SPECIES OF NOTE ON THE EAST OF THE PROPERTY AND ROARING FORK RIVER: Northern Green Bog Orchid, L~nnorchis hyporoorea: Found in the willow 'wetland site -ust south of the driveway and south southeast along the river Orchids are not common on the western landscape as wetland and riparian areas are only a small portion of the arid mountain west 'around 2%~. Therefore finding orchids is always interesting and indicative ora site typica]/y in good to excellent condition. The Northern Green Bog Orchid is fairly chrcumboreal in its range, but within the Roaring Fork Valley it is found only in wet[md sites that are not degraded or altered and only then is ir occasionally seen. * Global rank is based on the range-wide status of the species and state rank is based on the status within Colorado. Globally, a G3 means the assocmraon ~s very rare or local throughout its range or found locally in a restricted range (21 to 100 occurrences). Overall. G3 means the assoc/ation is threatened throughout its range. GU indicates the inability to assign a global rank due to a lack of available information S3 indicates the assoc~anon ~s rare in the state with few occurrences documented. It also knplies the association is threatened by recreational use. inappropriate stream fi >w alterafions~ and/or maproper livestock grazing. G4 means the assocxaraon is apparently secure globally, though it may be qmre rare in parts of its range, especially at the periphery S4 indicates the association is "...apparently secure m the state with more than ~ )0 occurrences"rCNHP 1999 08/07/2001 JAMES N. SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN 6 DRAFT- CONFIDENTIAL Bog or Swamp Wintergreen, P, yro/a rotund~fo/ia L. subsp, asarifo/ia This has escaped extirpation on the property during grazing because individuals growing clirecfly underneath just a fexv willows acquired refuge. This is not a common find and a few scattered plants also occur within the willow/wetland described above and were probably more extensive on the property before grazing, as were many species. It is interesting to note that Bog Wintergreen is typically considered to be a subalpine species and very vulnerable to disturbance (unless its hiding under a willmv!). Purple Averts, Geum rivale: Found between the Narrowleaf Cottonwood/Common Chokecherry community, on the southeast corner of the property and in the willow/wedand site described above. This forb will be a new herbarium record for Pitkin County at the largest herbarium in the Rocky Mountain west, the University of Colorado Herbarium in Boulder. The property supports a very large population of these beautiful and botanically interesting species also more typically found at subalpine sites when such an unusual fred is cliscovered. Management Action Steps: VEGETATION The grading principal of all management actions should be to mimmize any impacts that may reduce the ab/I/ties of the riparian, wetland and upland areas to support existing native plants and nati~ plant associations. Activities on the eastern portion of the property should be exercised in a manne~: compatible with this overall guiding principal. Overall management actions should attempt to maintain or enhafic~ exisfing.v3ative plant communities and imt~rove the quality of wildlife habitat on the property. Management Action Obiectives for Vegetation on the Pdpar/a~n, Wetland and Upland sites: · Maintain or increase the number o,f native plant species. · Maintain or ~creas~ the existing nmnber of u~comm0n native plant species. · Maintain or increase the ~xisting :number of occurrenges of uncommon plant species. · Reduce the abundanee ot?invasive and ~oxious noon-native species present. · Prevent the establls~en~ of and spread of invasive and noxious non-native species that have not been prevmusly encount~d. · Maintain Or increase:the ~kisting number and types of plant associations dominated by native plants · Maintain or increase the ~egetation quality for each plant association or for any associations identified in the future. · Maintain or increase the aerial extent of the exxsting native shrublands. · Maintain or increase the aerial extent of the exxsting riparian areas. · Maintain or increase the aerial extent of the exastmg wetland areas. 5.0 SIGNIFICANT WILDLIFE RESOURCES Ecological studies and inventories conducted at North Star Ranch over the years have revealed that the existing ecological complex supports a high level of biological diversity: 14 species of small mammals (e.g., m/ce, voles, shrews, squirrels); at least 107 species of birds, more than 43 of which are likely to breed on or around the property (including at least 4 U.S. Forest Service Region 2 Designated "Sensitive" species); I3 medium to large mammals (e.g., elk, coyote, black bear, bobcat); 3 species of amphibian (including the mountain [or boreal] toad which is a "warranted but precluded" Candidate species under the U.S. Endangered Species Act); and one reptile species (western terrestrial garter snake). There is some history of elk calving in the aspen of the alluvial fans (approximately May 15th to June 15th) on the Property. Historically, as many as 50 elk cows calved in the aspen on the alluvial fans of the greater North Star Ranch. Currently, only a handful is doing so. Although it is difficult to determine the cause of this decline, it is likely that human and dog activity has contributed. In addition, elk use the Property as a staging area during 08/07/2001 JAMES H. SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN 7 DRAFT- CONFIDENTIAL migration (spring and fall) as they move between summer and winter ranges. Of particular conservation interest is the Great Blue Heron colony on the Property. It is estimated that there are approximately 63 Great Blue Heron colonies in the entire state of Colorado and the Smith colony is thought to be the only one occurring over 8500 feet in elevation and in blue spruce trees [most occur in cottonwoods). In other words this Great Blue Heron colony is quite unique and ecologically significant. The presence of this colony has important management implications. Researchers over the last 10 years have found that a 200 meter buffer zone from the periphery of colonies in which no human acuvity takes place during the courtship and nesting seasons is necessary to avoid neganve effects on recruitment. Currently, there are seven acuve nests with as many as three nestlings. This buffer zone xvill be honored in the management of the Property. On two occasions, an adult mountain 'or boreal) toad was seen in the area in June - once on North Star Nature Preserve 0999'~ and once on the Property itself (2001). If, and it appears likely, mountain toads are federally listed as Endangered or Threatened, then we will be bound by law to increase the protective stams of the Property. Surveys will be conducted in 2001 and 2002 for breeding toads, non-breeding toads, tadpoles, and egg masses. 5.1 Recreation and Wildlife Open space land use by recreauonists has increased throughout the.United States. As open space use rises and penetrates natural areas, encounters between humans and wildlife increases. There is concern among scientists and the public that recreationlsts may have a negative ~mpact on wildlife. Recrea~omsts can affect wild_life through unintentional disturbance, the primary way recteaffonists affect xvildlife, or intentional disturbance (Kuight and Cole 1995). Due to the escalating use of open space unintentiona~ di~bance ha~become particularly impactive. Understandine .... the imvacts and =esvonses of wil~fe to recreadonists can vro~vide open space managers with the information to develop ~t~gatiom measures such as co!des of conduct. The behavior of recreationlsts affects wildlife responses; :Predictability ~f a behavior paffly determines wildlife response. If the disturbance is predictable and non-threate~g there is ~ttl6 0ve3tt response, but if the disturbance is predictable and threatening there is a strong response (Knight and IGxight 1984)~ Practical considerations such as trail placement, user education and regulations, and informational materials at Crafts could be effective mitigation strategies. 5.2 Management/kction Steps,: Wildlife 1. The management of approved recreational activities will depend on the results of the biological inventory and momroring of the property as well as yearly assessments of the =npacts of recreational activities on the ecological resources identified by the inventories and monitoring activiues. 2. The habitat management of the property will focus on maintaining and enhancing the habitats of sensmve specaes, habitat interior species, species of special or cultural concern, and declining or rare species. These species include, but are not limited to, the following: elk, great blue heron, sofa, and Virg4.nia rail. 3. A 200 meter buffer area around the heron colony will be established from March 1 through July 31 (Vos et al. 1985). During this period observation of the herons ~vill be provided at a viewing stand ~vith a fi.xed spotung scope. ~nterpreuve signage will explain the conservanon s~gnlflcance of the heron colony and about their natural history. 4. Monitor birds and small mammals via the Pitldn County Open Space Wildlife Inventory and Monitoring protocol. 5. Monitor effects of human and wildlife impacts and effects of management actions on the wildlife of the Property accoiding to the Pitkin County Ope~ Space Wildlife Inventory and Monitoring protocol. 6. Identify and map critical wildlife habitats. 7. Maintain and enhance the flood and subsurface hydrologic regnne that supports the natural communities found on the property. 8. Evaluate the fluvial geomorphology of the Roaring Fork Privet for restoration potential. 08/07/20( 1 JAMES H. SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN 8 DRAFT- CONFIDENTIAL 9. Adapt management methods and objectives based upon the results of morfitoring. 10. Maintain the connectedness of Property with adjacent, undeveloped lands. 6.0 VISITOR SERVICES 6.1 Recreation Potential The primary purpose for the acquisition of the Property is to protect the land and the ecological communities that depend on it for their continued existence. Consequendy, it is the intent of the City of Aspen and Pitkin County Open Space to allow access only to those areas where the risk of interrupting ecological processes will be mimmal. Access to the property will be from the East of Aspen Trail through the main gate where interpretive signage will enlighten the visitor to the history and significance of the Property. While preservation of important wildlife habitat, including the great blue heron rookery, and protection of scenic open space is the primary objective of this project, the acquisition of the The Property provides opporttmifes for managed public use of the Property. Recreational uses that are compatible with !2/e ecological goals of the preservation effort include hiking on designated trails, b/rd and wildlife watehing;'boating along the Roaring Fork, and non-maintained nordic and snowshoe use in the winterttme. ~ese uses, within the parameters outlined in this Plan, and the restrictions to uses set forth in this Plan, are also consistent with the North Star Nature Preserve Resource Management Plan. 6.1.1 Trail System Considerations At the time of acquisition, the P~0perty h~ts a t~.o-track road leadmg from ne highway to the barn (which shall be removed wathin one Year :6f the ~¢qmsition); spur~ tra~lg to the north and south of this main road, leading to the river, and; remnants bra ~t~;tha,~ !sm decline toth~ West of the river. This Plan will restrict use of these tra/ls in a manner which prot~ects the ~i:ol0~l v~ues of the Property, Specifically, any recreational use of the western portion of the property is prohibited. Similarly; the sour-hem spur trail will be eliminated from its current junction with the main trail ro creare~a but~fer zone for the heron nests. The mam trail will be modified to a four foot single tread and reroured to allow for abuffer zone for the herons. The fire par near the barn site will be removed and the facilities in that:area will be minmaized. This Plan proposes creating an mrerpredve loop trail offthe main mail, as an added public:amemty. (Please see Figure 1.) Access for nordic use of the property will only be permitted through the designated entrance from Highway 82, and prohibited from the North Star Nature Preserve, in order to protect wetlands areas. Winter use of the property will be along a designated traii only and will be non-maintained. No motorized eqmpment can be used to set nordic tracks. 6.1.2 Aquatic Uses This Property offers a stretch of river well suited for begmning boaters. Currently, kayakers and canoers enjoy the Property from the raver as they pass through on their way from the put-in at Wildwood Lane (near the Wildwood SchooI) to one of the take-outs at North Star. The main entrance to the Property lies within 0.56 miles of the canoe/kayak/raft pur-m on USFS property off of Wildwood Lane and 0.34 miles from the south put-m/take-out at North Star. There are two gravel beaches where boaters can beach and access a designated trail to experience the Property (Figure 1). The other gravel beaches are in close proximity to the heron colony or are on the west bank of the river are not open to access by boats. 6.2 Education Potential 08/07/2001 JAMES H. SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN DRAFT- CONFIDENTIAL The Property offers an excellent opportunity to provide the public with ecological educational resources. Opportunities to explore for this property include interpretive signage along the loop trail and observation of the gmat blue heron rookery. 08/07/2001 JAMES H, SMiTH NORTH STAR OPEN SPACE MANAGEMENT PLAN 10 DRAFT- CONFIDENTIAL 6.3 Fencing Fencing along the East Aspen Trail and between the North Star Nature Preserve and the Property will remain, but be modified as necessary to be wildlife compatible. All other fencing shall be removed. There will be signage prohibiting access from the Preserve to the Property. 6.4 Trails and Management Action Steps: 1. A small, primitive loop trail in the oxbow east of the one containing the barn will be constructed for interpretive opportunities and to allow access to the riverbank when the heron buffer is in effect (Figure 1). 2. No other trails V/~I1 be constructed on the Property unless there is a specific ecological justification, and are approved by the Management ComXmttee as described in subsection 8. 3. The only trails that will be maintained on the Property are the main 2-track trail from the entrance gate to the barn and the loop trail (Figure 1). a. The main 2-track trail v/il be reduced in width to a 4 foot wide dLrt trail and v/ill be shifted to the north where it approaches the barn to accommodate the heron buffer (Figure 2). 4. Any portion of the trail may be shifted with approval of the Mar~ag~m~t Cormmttee, as described in subsection 8, for management purposes. 5. Nordic access from North Star Nature Preserve is pe~tted along the East of Aspen Trail to a loop on the east side of the Property. a. No motorized maintenance of nordic access is allowed. 6. All fences v/il be taken down between the North Star Nature Preserve ~2qSNP) and the Property. Posts will be left on the east side o£ ~s:bomidary with s from the NSNP side. 7. Water rights will be m~ed purposes. This ~s a beneficial use 8. ' ordinance. This plan will be reviewed within 3 years. a. Aqy shall be approved by a Management Cormmttee which meets County Open Space Director, the Chaiz of the Pitkin City Parks Director, a member of the Aspen City Council or their designee, and Joy Smith, or her designee. Decisions of the Management Committee shall be made by a simple malority. 7.0 REGULATIONS The regulations governing the management, maintenance, and utilization of Pirkin County Open Space and Trails properties are set forth in Title IX of The Pitkm County Code (Ord. 01- 04), and apply to the James H. Smith North Star Open Space. The follov/mg additional regulations and management actions v/ill assure that visitors to the Property can enloy an unsullied appreciation of natural communities without interfering xvith the processes that maintain them: 1. There shall be no vxsitor access to the west side of the river. 2. Motorized use is allowed for management, maintenance, and research purposes only. 3. There shall be no equestrian use. 4. Dogs are allowed on the East of Aspen Trail only. 5. There shall be no commercial use of the Property. 6. Time and location of public access will be limited to protect the heron colony, elk calving, and other sensitive wildlife activities. 7. A 200 meter buffer around the permaeter of the existing and any future heron colonies v/il be established from March 1 through July 30~h. 08/07/2001 JAMES H. SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN 11 DRAFT- CONFIDENTIAL a. Where it intersects trails the buffer v/~ll be demarcated with a simple loop post and rope hamer and interpretive signage explaining the ecological purpose of the buffer. 8. Putting-in and taking out canoes, kayaks, or rafts w'fll be prohibited on the Property. Beaching canoes and kayaks ~fll be allowed on 2 designated beaches east of the river on the Property (Figure 1) 08/07/2001 JAMES H. SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN 12 DRAFT- CONFIDENTIAL Literature Cited Knight, R. L., and D. N. Cole. 1995. Wildlife Responses to recreationists. Pages xvii, 372 ia R. L. Knight and K.J. Gutzwiller, editors. Wildlife and recreationists: coexistence through management and research. Island Press; Washington, D.C. Kmght, R. L, and S. K. I~ight. 1984. Responses of wintering bald eagles to boating activity. Journal of Wildli£e Management 48:999-1004. Colorado Natural Heritage Program (CNHP). 1999. Biological and Conservation Data (BCD) System. Data from field survey. Colorado Natural Heritage Program, Colorado State University, Fort Collins, CO. Stedman-Edwards, P. 1997. The Root Causes of Biodiversit~y Loss: An Anal. y~ica/~proach. (Washington, DC: World Wtldlife Fund). 08/07/2001 JAMES H, SMITH NORTH STAR OPEN SPACE MANAGEMENT PLAN 14 THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING CONTRACT TO BUY AND SELL REAL ESTATE , VACANT LAND -- FARM - RANCH') May 4~ 2001 t. AGREEMENT. Buyer agrees to ouy anu me unoers~gned Seller agrees to seiI the Pro~er~v. defined beIow on me terms sad conditions set tbrth tn tn~s contract. DEFINED TERMS a. Buyer Buyer. THE BOARD OF COUNTY COMMISSIONERS OF PITK12q COLrNTY and/or Assigns. wIi ra~<e tree to the real estate Property described below. b. ProperW The Property is the following iegat~y described real estate: See Exhibit A attached aerero ann '~corporates herein by this reference, in the County of ?itkin. Colorado. commontv known as The Joy Smith North Star Parcel. togemer w~th all the interests, easements, rights, benei~ts, improvements and attached t~xtures appurtenant ~hereto. all interest of Seller m vacated streets and alleys adjacent mereto, excee[ as herein excmaea. c. Dates and Deadlines. Item No. Refer0nce Event Date or Deadline I I § 5a Loan Applicauon Deadline N/A 2 § 5b Loan Commitmem Deadline N/A 3 § 5c Buyer's Credit Information Deadline N/A 4 { 5c Disapproval of Buyer's Credit Deadline N/A 5 § 5d Existing Loan Documents Deadline N/A 6 § 5d ' Objection to Existing Loan Deadline N/A 7 § Sd Approval of Loan Transfer Deadline N/A 8 ~ 6a Appraisal Deadlihe N/A 9 § 7a Title Deadline - 10 days after * I0 § 7a 'Survey Deadline 15 days after '" I 1 ~ 7b Document Request Deadtine 15 days after '~ i i2 § 8a Title Oblectton Deadline 30 days after ' I [3 § 8b [ Off-Record Matters Deadline ' '- tO days after * 14 § 8b Off-Record Matters Objection Deadline 30 days after * 15 § 10 Seller's Pror>erw Disclosure Deadline 15 days after * 16 § 10a inspection Objection Deadline 60 days at,er ' ]7 § 10b Resolution Deadline 75 days after * I 18 § ! I Closing Date 90 days ar~er ~ i i9 § 16 Possession Date upon ciosing ] 20 § 16 Possession Time 12:00 o.m.. M.S.T. 21 ~ 28 Acceptanc~ Deadline Date 7 days arSer *' [ 22 § 28 I Acceptance Deadline Time 5:00 ~.rn.. M.S.T. Subsection 61 al or'the Addendum a~:ached neretoI ?Jtkin County .-~orney, Coun~ Manager and Onen Soace and Trails Director. Zorn~utenzed Legal Forms. [nc. P.O. Box .~70424 Denver CO 80237{,..~S 3-9-99 © [999 cl. Attachments. The following exhlbtts, atracnmems ann acmenaa are a cart of mis contract: See Aonencurn attached hereto and incorporated herein by this reference. e. Applicability of Terms. A check or similar mark in a cox means tnar such prowston ts appiicame. The abbreviation "N/A" means not applicable. 3, INCLUSIONS EXCLUSIONS a. The Purchase Price inciudes the following water rights: The following legally described water rtghts: See Exhibit B attached hereto and incorporated herein by this reference, b. Instruments of Transfer. The Inclusions are rooe conveyed at Closing free anct ctear of all taxes. liens and encumbrances, except as prowded in § I2. Convevanee shatl be by bv bill of sale or ;ffther'~.ppiicahle legal msrrument(s). Any water rights shaiI be conveyed by special &arranry aeea d tch company stock cart ficate well permit assignment or other applicable legal instrument(s/, c. Exclusions. The following attached fixtures are excluded from this sale: None. 4. PURCHASE PRICE AND TERMS, The Purchase Price set forth below shall be payable in U.S. Dollars by Buyer as tbilows: Item No. Reference Item [ Amount Amount l §4 Purchase Price S6.745.000.00 2 §4a Earnest Money 3 §4b New Loan ,~ §4c Assumpnon Balance 5 §4d Seller or Private Financing 6 §4e Cash at Closing $2.245.000,00 Total $6.745.000.00 $6.745 300.00 a. Earnest Money. The Earnest Money in me sum of One Hundred Thousand Dollars ($100.300.003 set forth in this Section. in the form ora check, is part payment of the Purchase Price anc~ shall be payable to ann hetCt ny Pitkm County, Title, Inc.. in .rs trust account, on behalf of both Seller and Buyer. The Earnest Money shall be deposited w~thin five 5' days of the fuI[ execution hereof. An additional earnest mone5 deposit of One Hundred Fifty Tb. ousand Dollars. St50.000,00 m the tbrm of Buver's cnect< sha~l be ueposited within three 13 business days of the expiratton of the Resolution Deadline. provided tb.-~t-'i~e-'C~htract has not been terminated by the Buyer on or b~tbre the Resoiution Deadline. b. New Loan. INAPPLICABLE - SECTION OMITTED. c. ~.ssum~tion. INAPPLICABLE - SECTION OMITTED. d. Seller or Private Financing. SEE ADDENDUM. e. Cash at Closing. All amounts to be said by Bu', er at Closin~ includin~ Cash au Closing, [ .us Buyer s :~os~ng costs shall be in funds which comply witk all appbcabie Colorado laws which include cash, electrontc transfer t'unds, certified check, savings and loan teller's check, FINANCING CONDITIONS AND OBLIGATIONS INAPPLICABLE - SECTION OMITTED. 6. APPRAISAL PROVISION INAPPLICABLE - SECTION OMITTED, EVIDENCE OF TITLE. a. Evidence of Title: Survey On or before Title Deadline } 2c' Seller siena cause to ~e furnisneo to Buyer. at Seller's expense, a current commitment for owner s title insurance policy in an amount equa~ tc the Purchase Price The title insurance commitment shall commtt to delete or insure over the standard excecnons wl¢ relate to: Contract to Buy and Sell Real Estatel Vac~t Land - Farm - Ranch Page 2 of 7 ~ m~tial Com=uter~zed L:gat Forms. inc. ?.O Box .;70424 Denver CO 80237 - CB~3-9-c)9 C2 1999 (1) patcte$ tn oossesslon, (2) unrecoruec~ easements. (3) survey manors. (4) any unrecorded mechanic's Iiens. ($) gap period (effective date of commitment to date deed is recorded), anct (6) unpatu taxes, assessments and unredeemed tax sales prior to the year of Closing. Any additional premmm expense to obtain this act. ditional coverage Shall be paid by Seller. Seller ~hatl cause me title insurance policy to be delivered to Buyer as soon as practicable at or after Closing. b. Copies of Except~gn.s On or before Title Deadline (§ 2c), Seller. at Seller's expense, shall furnish to Buyer. (1) a copy of any plats, declarations, covenants, conditions and restrictions burdening the Property. ace (2) if a titie insurance commitment is required to be furnished, copies of an3 other documents (or. if illegib[e, summaries of such ctocuments'~ listed in the schedule of excepnons (Excepuons). This requirement shall pertain oniyto arrcuments as shown of record in the office of the clerk and recorder(s). The title insurance commitment, together with any copies or summaries of such documanm fi~rnished pursuant this Section. constitute the title documents ~T[t[e Documents1. 8. TITLE. a, Title Review Bus er shall have the right to mspect the Title Documents. Written notice by Buyer of unmerchantabilit~ of title or of any diner unsatisfactory title condition shown b.~ the Title Documents shall be signed by or onbehalfofBuyer andgtvento Selleron or before Title Objection Deadline (~ 2c),orwithinfive (5) calendar days after receipt by Buyer of any Title Document(s) or eneorsement[s) adding new Exception(s) to the title commitment together with a copy of the Title Document adding new Exeeptmn[s) to title. If Seller does not receive Buyer's notice by the date(s) specified above. Buyer accepts me condition of title as disclosed by the Title Documents as satisfactory.. b. Matters Not Shown by the Public Records. Seller shall deliver to Buyer. on or before Off-Record Matters Deadline (§ 2c), true copies of all loosers) ace survey(s) in Seller's possession pertaining to the Property and snail disclose to Buyer ail easements, liens or other title matters not shown by the public records of which Seller has actual knowledge. Buyer shall Rave the right to inspect the Property to determine if may third part3,(ies) has any right in the Property not shown by the punic records (such as an unrecorded easement, unrecorded, lease, or boundary line discrepancy). Written notice of any unsatisfactory, condition(s) disclosed by Seller or revealed by such inspection shall de signed by or on behalf of Buyer and given to Seller on or before Off-Record Matters Objections Deadline (§ 2c). If Seller does not receive Buyer's notice b~ said date. Buyer accepts title subject to such rights, if any, of third parties of which Buyer nas actual knowledge. c. Special Taxing Districts. SPECIAL T,LXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PI~kCED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICTTO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE iN MILL LEVIES. BUYER S}IO I.'LD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHORIZED G ENER.4.L OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS. EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LE~.IES. [n the event the Propers.' is located within a special taxing cistrict and Buyer desires to terminate mis contract c~,a-~e~alt, if written notice ts given to Seller an or before Off-Record Matters Objection Deadline § 2c~ rms cr~rrac~ shall men terminate. [f Seller noes not receive Buyer's notice by such date. Buyer accepts me effect of the ?roeerty s .ncluston in such special taxing district(s) and waives me right to so terminate. d. Right to Cure. If Seller receives notice of unmerchantabiliw of title or any oth. er unsatisfactory title condition(s) as provided tn §8 al or (b) above. Seller may use reasonable effort to correct sate items and bear any nominal expense to correct me same prior to Closing. [f such unsatisfactory title condition(s are not correctee on or before Closing, mis contract snail then terminate: nrovided, however. Bus er may, t3y wnnen nonce received by Seiler. on or before Cinsing, waive ob3ecnon to such items. e. Title Advisory. The Title Documents affem me tree. ownersmp and use of the ?roperzy and snouta be reviewed carefully. Additinna[ly. other matters not reflected in the Title Documents may affect the title, ownership and use of the Property, including without limitation bounda~ lines and encroachments, area. zoning, unrecorded easements and cinim of easements. ~eases and other unrecomed agreements, and various ~r[ws aha governmental regulations concerning tenet use. aevetopx/tent and envtrorunenta[ matters. The surface estate may be ownee separately from the underlying mineral estate, and transfer of the surface estate does not necessarily include transfer of the mmerat r~gms. Third pomes may hold rights interests in oil. gas. other minerals, geothermal energy or water on or under the ?roperr) wn~tch interest may give them rights to enter and use the ?roner~. Such matters may be excluded from the tutu Contract m Buy and Sell Real Estate Vac~t Land - Farm - Rancl~ Page 3 of 7 _~ ~tua~ Comoutenze~l Legal Forms. inc. P,O. Box 370424 Denver CO 80237 CBS0-9-99 ¢ I999. asuranceponcy Buyer is advised to time[y consalt legai counsei with respec: to an sucn matters ss mere are strict nme limits r~rovlded in this contract e.g., Title Objecrmn Deadline [§ 2c] and Off-Record Matters Objection Deadline [§ 2c]). 9. LEAD BASED PAINT. INAPPLICABLE-SECTION OMITTED. I0. PROPERTY DISCLOSURE AND INSPECTION, On or before Seller's Property Disclosure Deadline § 2c), Se~ler agrees to provide Buyer with a written aisclosure of adverse matters regarding the Propers,' completed by Seller to the best of Seller's current actual knowledge. a. Inspection Obiection Deadline. Buyer shaiI the right to have inspection(s) of. [he PM s~cal condition of the Property and Inclusions. at Buyer's expense. If the physical condition of the Property or [nclusions is unsatisfactory in Buyer's subjective discretion. Buyer shall, on or before Inspection Objection Deadline t§ 2c): (1) notify. Seller in writing that this contract is terminated, or (2) provide Seller with a written description of any unsansfactory physical condition which Buyer reqmres Seller to correct (Notice to Correct ,. If written notice ts not received by Se[ler on or before Inspection Objection Deadline § 2c), the physmat condition of the Property and Inclusions shall be deemeci to be satisfactory ro Buyer. b. Resolution Deadline, If a Notice to Correct is received by Seller and if Buyer and Seller have not agreed tn writing to a settlement thereof on or before Resolution Deadline (§ 2c), this contract shall terminate one calendar day following the Resolution Deadline. untess before such terrninauon Seller receives Buyer's written witIxdrawa~ of the Notice to Correct. e. Dama~ie; Liens: Indemnity. Suyerisres~onsible forpayment forallinspecnons, surveys, engmeermg repons or any other work performed at Buyer's request ann shall pay for any damage which occurs to the Property and Inclusions as a result of such activities. Buyer shall not permu claims or liens of any kind against the Property for ~nspecuons surveys, engineering reports and for any other work performed on the Property ar Buyer's request. Buyer agrees to indemni~, protect and hold Seller harmless from and against any liability,, damage, cost or expense incurred ay Seller in connection with any such inspecnon, claim, or lien. This indemnity, includes Seller's fight to recover all costs and expenses incurred by Seller to enforce this subsection, including Seller's reasonable attorney fees. The provisions of this subsection shall survive the termiuation of this contract. 1 I. CLOSING. Delivery. of deedls~ from Seller to Buyer shall be at Closing (Closing). Closing shall be on the date specified as the Closing Date (§ 2c) or by mutual agreement at an earlier date. The hour and place of Closing shall be as designated by special warranty during normal business hours. 12. TRANSFER OF TITLE. Subject to tender or payment at Closing~as required herein and compliance by Buyer wtm rne other terms and provisions hereofi Seller shall execute and deliver a good and sufficient special warranW deed to Bayer, at Closing, conveying the Proper free and clear of ali taxes except the general taxes for the year 2001 aha thereafter. Except as prowded herein, title shall be conveyeu free and clear of all liens, including any government liens for sceciaI improvements installed as of the date nf Buyer's signature hereon, whether assessed or not. Title shall be conveyeo suoject to: a. mose specific Exceptions described by reference to recorde~i,doc;umems as ret2ectea tn roe Title Documents accepted by Buyer in accordance with ] 8a [Title Review] b. distribution utility, easements, c. those specifically aescribed rights of third parties not shown by me public records of which Buyer has actual knowledge and which were accepted l~y Buyer tn accordance wtm ] 8b [Matters Not Shown ay the Public Recordsl. anc~ d. inclusion of the Property, within any specm[ taxing district, and e. the benefits and burdens of any declaration and party wall agreements, if any 13. PAYMENT OF ENCUMBRANCES. Any encumOrance reouired to ee paid shall r~e paid at or before Closing from the proceeas of this transaction or from any omer source. t4. CLOSING COSTS. DOCUMENTS AND SERVICES Buyer and Seller shaii pay. tn Good Funds. their respective Closing costs and ail other items required to be paid at Closing, except as omemwse provided hereto. Buyer ann Seller shall sign one complete ail customary, or reasonably required documents at or >efore Closing. Fees for real estate Closing services shall be paid at Closing · One-Half by Buyer aha One-Half by Seller 'Z Buyer C Seller _- Other: 15. PRORATIONS. The following shall oe prorated to Closing Date. except as otherwtse provmed: a. Taxes. The Seller shall be responsible for the payment of real property, taxes on the Propen7. prior to closing. b. Rents. None. c. Other Prorations None. d. Final Settlement. Unless omerwtse agrees in writing; mese prorations shai[ be finai. 16. POSSESSION. Possession of the Property shall be delivered to Buyer on Possession Date and Possession Time (§ 2c), subject to the following lease(s) or tenancyts): None. 17. ASSIGNABLE Thiscomractshallbeassignabieby BuyerwithoutSetler'spriorwrirranconsent. Thiscontract shall inure to the benefit of and be binding upon the heirs, personal representatives, successors and assigns of the pomes. 18. CONDITION OF. AND DAMAGE TO PROPERTY AND INCLUSIONS. Except as omerwtse provided in this contract, the Property, inclusions m both shall be delivered in the condition existing as of the date of this contract. ordinar~ wear and tear exceptea. a. Casualty: Insurance. In the event the Property, or Inclusions shall be materially damaged by fire or other casualty, prior to time of Closing, this contract ma5 be terminated at the option of Buyer oy delivering to Seller written notice oftertnination Should Buyer elect to carry out this contract despite such damage, Buyer shall be entitled to a credit, at Closing, for all the insurance proceeds, if any, resulting fi.om such damage to the Proper,:y and Inclusions payable to Seller but not the owners' association, if any. plus the amount of any deductible provided for in such insurance poncy, such credit not tO exceed the total Purchase Price. b. Damage; Inclusions: Services. iNAPPLICABLE - SECTION OMITTED. c. Walk Through; Verification of Condition. Buyer, upon reasonable notice, shall have the right to walk through the Property prior to Closing to verit~ that the physical condition of th.e Property and Inclusions complies with this contract. 19, RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document. Buyer and Seller acknowledge that the Selling Company or the Listing Company has advised that this document has important legal consequences and has recommended the examination of title and consultation with legal and tax or other counsel before signing this contract. 20. TIME OF ESSENCE / REMEDIES. Time is of the essence hereof. If any note or check received as Earnest Money hereunder or any diner payment sue hereunuer is not paid. honored or tendered when uue. or if any diner obligation hereunder is not performed or watveu as herein provided, there shall be the following remedies: a. If Buyer Is in Default: _- (1) Specific Performance. Seller may elect rd treat this contract as canceled, in which case ali payments and things of value received hereunder shall be forfeited and retainan on behalf of Seller. and Seller may recover such damages as may t:e proper, or Seller may elect to treat this contract as oemg in full force and effect and Seller shall have the right to specific performance or homages, or born. · (2) Liquidated Damages. All payments and things ofvatue received hereunder shall be forfeited by Buyer and retained on behalf of Selter and both parties shall thereafter be released from ail obligations hereunder, it is agreed that such payments and things of value are LIQUIDATED DAMAGES anct (except ~ [ rovided in subsection c~ are SELLER'S SOLE AND ONLY REMEDY for Buyer's failure rd perform the obligations of this contract. Seller expressly waives the remedies of specific performance and additionm damages. b. If Seller [s in Default: Buyer may elect to treat this contract as canceled, tn which case alt payments and m~ngs of value received hereunder shall be remmect anti Buyer may recover such-damages as may oe proper, or Buyer may eiect to treat this contract as being in full force and effect and Buyer shall have tne rtght rd specific performance or damages, or both. c. Costs and Expenses. [n the event of any arbitration or Iitigatton relating to this contract, the arbitrator or court shall sworn to me prevailing party, all reasonable costs and exoenses, intruding attorney ~'ees. 21. MEDIATION. INAPPLICABLE - SECTION OMITTED. 22. EARNEST MONEY DISPUTE. Notwithstanding any termtnanon of this contract. Buyer and Seller agree mat. tn the event of any controversy regarding the Earnest Mono5 and things of value held b5 broker br Closing Company unless mutual written nsrmctions are received by the holder of the Earnest Money and things of value~, broker or e~9~ Closing Closing Company shall not be required to take any acuon but may await any ~roceenm~. or at brok Contract to t3uy and Sell Real E~tatel Vacant Land - Farm -Rancn/ Page $ of 7 /13 initial Comr~utenzed Lezal Forms. inc. P.O. Box 370424 Denver CO 80237 ~ [ [999 Company s oprinn aad sole discretion, may interplead alt pames and deposn any moneys or things of value mrc a court of competent jurisdiction and shall recover court costs and reasonable attorney tees, 23, TERMINATION. in the event this contract is terminated, ail payments and things of value received hereunder shall be returned and the pames shall be relieved of all obligations aereunder, subject to §§ I0c and 22. 24, ADDITIONAL PROVISIONS. (The language of these additional provisions has not been approved by the Colorado Real Estate Corn missmn. ~ See Additional Provisions Addendum attached hereto and into morated herein by this i'eference, 25. ENTIRE AGREEMENT: SUBSEQUENT MODIFICATION: SURVIVAL. This cofitrac~'consntutes me entire contract between the parties relating to me su[~ect hereof, and any prior agreements pertaining mereto, wnemer oral or written, have been merged and integrated into this contract. No subsequent modification of any of the terms of this contract shall be valid, binding upon the parties, or enforceable unles~ made in writing and signed ny rne parties. Any obligation in this contract, which by its terms, is intended to be performed after termination or C k sing shall surwve 26. FACSIMILE. Sisnatures mav be evmenced by facsimile. Documents with original signatures shall be provided to the other party at Closing, or earlier upon request of any parry. 27. NOTICE. See Addendum 28, NOTICE OF ACCEPTANCE: COUNTERPARTS. This proposal shall exmre unless accepted in writing, by Buyer and Seller, as evidenced by their signatures below, an(= the offering party receives notice of such acceptance pursuant to § 27 on or before Acceptance Deadline Date aha Acceptance Deadline Time (§ 2c). If accepted, this document shall become a contract between Seller and Buyer. A copy of this document may be executea by each party, separately, and when each party, has executea a copy thereof, such copies taken together shall be deemed to be a full and complete contract between the parties. SELLER: BUYER: JOY SMITH THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY and/or Assigns Date of Sel e~ nature:~/ fl' 2001 Date of Buyer's Signature:[P(~,~'[g'~ . 200I Seller's A~ress: c/o Brooke A. Peterson, Esq., Kaufman & Peterkin, P.C., 315 E. Hyman Avenue, ~?30b, Aspen. CO 81611 ~/./~ APPROVED AS TO FORM: ' lohn~~,~/~, 7~GEly,, Pitkin~Bim'??~rnev Dale Will. Pitkin County, Open Space and Frans Director biilarv Smitg/../Pitkin Count,/Mana~7 U Contract to Buy and Sell Real Estate Vacant Land - Farm - Ranch Page ~ of 7 mma] Com~u~enze~ begin Forms. lnc P.C Box 370424 Denver CO 80237 1999 JOY SMITH Seller Date of Se~ler's signature: 200 l Sdler's Address: c/o Brooke A, Peterson. Esq., Kaufman & Peterson. ?.C.. ~ 15 East Hyman Avenue. Saite 305. Aspen, Colora6o 8161 [: telephone: {970) 925-8166: facsimile: (970~ 925-1090. Contract to Buy and Sell Real EstatctVacant Land · Farm - Ranch ?age 7 oi"7 ~ nmm Combutenzed Legal Forms. inc. P.O Box 370424 Denver CO 80237 2BS 3~-99 ~ I999 ADDENDUM ADDITIONAL PROVISIONS Addendum to that certain Vacant Land Contract to Buy and Sell Real Estate dated May 4. 2001. bet~veen the Board of County. Commissioners of' Pitkin County. and/or Assigns. Buyer. and Joy Smith. Seller, fbr the property 'known as The Joy Smith North Star Parcel. I. ADDENDUM TO CONTROL: TO the extent the provisions contained in the Addendum conflict with provisions contained in the Contract to which the Addendum is attached, the provisions in the Addendum shall control. 2. AMENDMENT TO CONTRACT SECTION 8: Subsection (d) of Section 8 of the Contract shall be amended to read: "If Seller receives notice ofunmerchantability of title or any other unsatisfactory, title conditiom s) as provided in Subsections (a) or (b) above. Seller shall use reasonable efforts, but shall not be required to expend any monies unless said unsatisfactory, title condition was caused by Seller. to correct said unsatisfactory, title condition(s) within seven (7) days of said notice. If Seller fails to correct said unsatisfactory. title condition(s) on or before seven (7) days from the date of notice, this Contract shall then terminate; provided, however. Buyer may, by written notice received by the Seller, on or before the expiration of seven (7) days from the date of notice, waive objection to said unsatisfactory, title condition(s)." 3. BARGAIN AND SALE CHARITABLE CONTRIBUTION: Buyer and Seller acknowledge that the current fair market yalue of the P.roperty being conveyed to Buyer under this Contract exceeds Buyer's purchase price and therefore Seller wishes to effectuate the transaction contemplated by this Contract as a bargain and sale. so-called (part sale. part charitable contfibutiom as defined in the internal Revenue Code Section t011(b), as amended, and the regniations thereunder. In this regard, after Closing, at Seller's request and at no cost to Buyer. Buyer agrees to take ail actions reasonably requested by Seller to acknowledge the charitable contribution, including acknowledgment of the donation on Seller's federal Form 8283. issuance to Seller ora gift acknowledgment letter. Furthermore. the ordinance referred to in Subsection 6(a) hereafter shall be in such form as agreed to by Buyer and Seller to appropriately recognize the bargain and sale nature of this transaction. 4. BUYER'S ASSUMPTION OF RISK: Except as specifically set forth in this Contract and the Special Warranty. Deed. Seller makes no representations or warranties and shall not in any way be liable for any representations or warranties: including, without [imitation: representations and warranties with respect to: (i) the condition of the Properc?' or any. buildings, structures or improvements thereon or the suitabili~' of the Property. tbr Buyer's intended use or for an5' use ;vhatsoever: (ii) any applicable building, zoning or fire laws or regulations, or xvith respect to compliance therewith or with respect to the existence of or compliance with an5.' required permits, if any. of any governmental agency: (ii) the availability or existence of any water, sewer or other utilities/public or private >: (iv) the existence, accuracy or validity or any documems with respect to me ?ropeR' including. without limitation, permits issued by govermmental enuties b. aving jurisdicuon over the property or soil repons }. Buyer acknowledges to Seller that Buyer has fully inspected the Property or will do so prior m the expiration of the Inspection Objection Deadline to [ts full satisfaction, and Buyer assumes, as of closing, the responsibility, and risk of all defects and conditions, including, such defects and conditions, if any. that cannot be observed by casual inspection. CONDEMNATION: In the event of condemnation or receipt of notice of condemnation or taking of the Property or any portion thereof by governmental authority prior to the date of closing, the Buyer, at its option, shall have the right to terminate this Contract. and the earnest money deposit and interest thereon shall thereupon be refunded to the Buyer, at which time all parties shall thereupon be relieved of all rights and responsibilities in this Contract. at law and in equity. Jif the Buyer does not elect to terminate this Contract. then closing hereunder shall be consutmnated as herein provided without reduction of the purchase pr/ce but all conderrmation awards or payments shall be paid or assigned to the Buyer at closing, tn no event shall Seller be under any duty. to Buyer ro restore the Property. following a condemnation. 6. CONTRACTUAL CONTINGENCIES: Buyer's and Seller's performance hereunder shall be conditioned upon the following conditions precedent, each of which must either be satisfied prior to the date specified or performance of which is waived by the date specified: (a) Full Execution/Approval bv County Action. 'Full Execution" of this Contract shall not be deemed to occur until the adoption of an ordinance authorizing this transaction by the Buyer (Pitkin County Board of Cotmty Commissioners) at regularly scheduled meetings which occur after the date upon which this Contract is accepted by the Seller on or before the Acceptance Deadline Date. The parties understand and agree that the Full Execution requires consideration of the Contract at two (2~ readings at regular and official meeungs of the Buyer. with a properly noticed Public Hearing as one of those meetings, and shall be subject to applicable provisions of the Pitkin County Home Rule Cl~arter and the Colorado Revised Statutes. Should this Contract not be approved for Full Execution by the Buyer ~br any reason, this Contract shall become null and void upon the dare the Buyer refuses or fails to approve the Contract at Buyer's option. A~,reemenr as to Mana~,emenr Plan. Written agreement as ro an appropriate post closing management plan for the Property.. including, but not limited to. the conditions for access to the Property., use of the Property and Seller's participation in the post closing management of the Propem.'. This agreement must be reduced to writing prior to the Inspection Objection Deadline. in the event such a_oreemenr has not been reached bv that date. and the date for approval has not peen extended by mutual agreement of this party, this Contract shall terminate. c) Participauon of City of Aspen. Buyer's obligation to c[ose under this agreement ts conungent m~on the contribution of one-half f~,/,_h of the purchase price for the Properk¥, from the City. of Aspen. Buyer shall provide Seller written notice of satis- faction of this contingency upon receipt of a binding and enforceable commitmem from the City. of Aspen to contribute that amount. In the event that the Seller does nor receive notice of the termination of this Agreement due to the failure of this specific contingency on or before the expiration of the [nsp_ecti_on Objection Deadline, this contingency shall be deemed to have been satisfied. Buyer and Seller agree that this agreement may be assigned to the City of Aspen, in parr. m allow the City to acqmre a joint or other interest in the Property with the County. as consideration for the City. contribution. 7. ESCROW AGENT: This Agreement shall constitute escrow instructions to the Escrow Agem or such other reputable escrow agent located in Colorado as Seller may elect. Any other provisions of this Ageement to the contrau' notwithstanding: a) all money, documents and other items required hereunder to be paid or delivered by any party to another party shatl be deposited on or prior to Closing Date with Escrow Agent for payment or delivery to such other pa~.; (b) when the Escrow Agem ascertains to its reasonable satisfaction that it is ready and able upon closing to issue the title insurance policy as provided in the Contract and ~vhen the Escrow Agent holds all funds, documents and other items necessary for closing, the Escrow Agent shall effect the closing by causing the deed to be recorded in the office of the Clerk and Recorder of Pitldn County, Colorado, and shall instruct said Clerk and Recorder to mail the deed after recordation to Buyer at its address set forth below: and fo) upon the closing, the Escrow Agent shall disburse or deliver all funds, documents and other items deposited an4 then remaini[tg in escrow to the party, entitled thereto pursuant to this Agreement. Buyer and Seller agree that the Escrow Agent shall be responsible only for the safekeeping of the funds, documents and other items deposited in the escrow and for the disposition of same in accordance with this Agreement. together with the performance of any other written mstrucnons executed by Buyer and Seller and accepted by Escrow Agent. 8. FACSIMILE: The parties hereby agree that tiffs Contract may be offered and or accepted by facsimile communication and that communication o f facsimile signatures shall be deemed the same as deliveu, of original signatures, so long as the evidence can be presemed by the sending parry, of receipt by the other party, of any cornmun~canon sent by facsimile. FINANCING: Four Million Two Hundred Fifty Thousand Dollars $4.250.000.00) of the purchase price shall be paid by the delivery, to Seller of the Buyer's Promissory. Note fur said amount bearing imerest at Five and 3/10 Percent (5.3%~ per annum. ,.n such form as is approved by Buyer's counsel prior to the expiration of the inspection Objecnon Deadline. Phis Promissory Note shall be payable as follows: Interest only payments in the amount of One Hundred Twelve Thousand Six Hundred Twenty.-Five and 00/100 Doilars I $ I 12.625.00~ shalI be due and payable commencing on the day that is six 16~ months from the date of closing and connnuing each six ~6~ months thereafter until the date which is twenty 20~ years from the date of closing at which time all unpaid principal and interest shall be due and payable in full. Ninety. (90~ days after notice from the holder of the Promissory. Note to the Buyer, the Promissory. Note shall be convertible to a general obligation bond tthe "Bond") of the Buyer in the same principal amount, maturity, and interest rate as the Promissory. Note and supported by an opinion of nationally recognized bond counsel as to valid issuance and federal and Colorado income tax exemption as of the date of issuance of th, Promissory Note; provided, however, that such nonce may be given no earlier than ninety. (90) days prior to the twelfth (12th) anniversary date of the execuuon of the Promissory Note. The Promissory Note shall further provide that if any payment due under the Promissory Note is not paid when due. such payment shall bear default interest at the rate of Ten Percent Il 0%) per annum. The Promissory Note. and upon conversion thereof as described in this Section. the Bond. shall be subject to redemption by the Buyer prior to the maturity, thereof, at the sole option of the Buyer. on and after a date which is fifteen (15) years from the date of the Promissory. Note. The Promissory. Note will not be issued: (a) with ~nterest coupons attached: (b) ~ registered tbrm: or ~ c~ m any other form designed ro render the Promissory. Note readily tradable in an established securities market. Said Promissory Note is not intended to be ora type offered to the public within the meaning of Internal Revenue Code (IRC) Section 149(a)(2)(A). With respect to the Promissory Note. the Buyer agrees to satisfy the information reporting reqmrements of IRC Section 149(e). Buyer will not direct or permit any acnon or inaction or use or permit any use of the Property that would cause its Promissory. Note to be or become arbitrage bonds within the meaning of IRC Section 148. private activity bonds that are not qualified bonds ~vithin the meaning of IRC Section 141. or federally guaranteed bonds within the meaning of IRC Section 149(b). i 0, HAZARDOUS MATERIALS WARRANTIES AND INDEMNIFICATION: By signing this Contract. Seller warrants and. ar the closing, Seller shall again warrant to Buyer as follows: a No asbestos. PCBs or Other hazardous materials have been stored on the Proper,3' by the Seller or were or are used by the Seller in connecnon with the operauo m a manner :hat would give rise to liability, under any environmental la~v. except ;uch materials as were or are used in agricultural operations. No pan of the Property has been used as a landfill by the Seller and no hazardous materials have ever been stored or deposited upon the Property. by the Seller which would unaer any applicable [aw or regulation: (i) prevem development of the Proper~y.: or (ii/require that the Property. be treated or materials removed from the Property.. prior to the use of the Property. for any developmem which xvould be permitted by laxv but for the existence of said materials on the Property.. other than materials used by the Seller in the agricultural ooerauons on the Property. "Hazardous materials" :.s used herein shall mean and mcmde any pollutants, contaminates or hazardous or toxic materials, wasms or materials as deilned, listed or regulated by any federal, state or local law. regulation, order or decree '~Environmemal matters" shall mean and include any condition, claim, cost. order, demand, requiremem or liability, either (i) regulated or arising under any federal, state or local laws or regulations govenfing or relating to the environment, including without limitation RCRA. 42 U.S.C. Section 6901. et seq., and CERCLA, 42 U.S.C. Section 9601. er seq., as amended: or [ii) caused by or relating to the presence or release of any hazardous materials in or to the a/r. soil. surface waters or groundwater. In the eves that it is discovered, at any time. that any portion of the Property contains hazardous materials which were placed upon the Property. by the Seller for other than agricultural operations. Seller shall indemnify,, defend and hold harmless Buyer, ~m employees, agents, successors and assigns from and against any and all direct and proximate losses, costs, expenses and claims incurred by, imposed on, or asserted against Buyer which are caused by or arise from hazardous materials. Such costs shall include, but not be limked to. the cost of remediation, engineering fees. legal fees. and costs associated with responding to any order or request from a governmental agency. 1 I. INSPECTION: Buyer's right of inspection pursuant to Section 10 of the printed form of the Contract, shall include the right of access to the Properzy for the purpose of conducting tests, studies and surveys thereon, including, without liraitation, soil and subsoil tests. Buyer may have performed at its option and/or expense the following inspections: (a) soil and percolation tests: (b) inspections for asbestos, PCBs. underground tanks or other ha?~rdous materials: [c/ any other tests and/or studies deemed necessary by Buyer which do not materially damage the Property.. The Buyer shall promptly provide to Seller copies of the results of all such tests, inspections and studies following the receipt of same by Buyer. The Buyer shall furthermore restore the Property to its original condition after any such test or inspection. The Buyer shall not drive or place any vehicles or drilling rigs on the Property other than on existing road~vays. · _. IRC SECTION 1445: Seller xvarrants that it is not subiect to withholdin~ as defined under internal Revenue Code Section [445 and will execute an affidavit prior ro c~os~ng to this effect. In the event that Seller fails to deliver the affidavit at closing or that Seller delivers such affidavit but the Buyer has actual knowledge that such affidavit is false, or receives notice that the affidavit is false from any agent of Seller. the Buyer shall be entitled to ~vithhold from the purchase price a sum equal to ten percent I t 0°/~, of the tots amount which otherwise should have ~een realized by the Seller from such sale. which sum will be paid by the Buyer to the United States Treasury. pursuant to the reqmremems of Section 1445 of the Internal Revenue Code and the regulations promulgated thereunder. MISCELLANEOUS: a. Time Periods. [f any time period referred to in this Contract shall end on a Saturday, Sunday or tegal holiday, such time period shall automatically be extended to . 5:00 p.m.. M.S.T. on the first reguiar business day thereafter. b. Further Assurances. Each of the par~ies agrees to execute, acknowledge and deliver. or cause to be executed, acknowledged and delivered, such further [nsarumems and documents and to do all things and acts as the other parry may reasonably require in order ro carry out the intentions of this Contract and the transactions contemplated hereby. c. Entire A~reemem. This Contract comains the entire agreement between the parties and supersedes all prior understandings, negotiations and representations, written or oral, not contained herein. It may not be amended or modified except by an agreement in writing signed by both parties hereto. d. Interpretation. No provision of this Contract shall be construed against or interpreted to the disadvantage of any party by reason of such party having, or being deemed to have requested, drafted, required or structured such provision. e. Controllin~ Laws. This Contract shall be construed in accordance with and governed by the laws of the State of Colorado f. N/A. The abbreviation "N/A" where used herein shall mean "not applicable" or"not a part of this document". g. Notice. Any notice required under the Contract shall be deemed delivered by facsimile transmission ~vnen me transmission is complete, when delivered by hand delivery., or when delivered by overnight courier to the following addresses: If to Seller: Joy Smith c/o Brooke A. Peterson. Esq. Kaufman & Peterson. P.C. 315 East Hyman Avenue Aspen. Colorado 8161 Facsimile: (970) 925-1090 If to Buyer: Board of County. Commissioners of Pitkin County. 530 East Main Third Floor Aspen. Colorado 81611 Facsimile: (970) In the event the Buyer or Seller tails to include their facsimiie number or in the event such number is included but such party's facsimile equipment is not operaung at the time the other party desires to send notice, this notice shall be deemed effective upon 6 k'~csimiie transmission to such party's real estate broker cr :~romey If either of the same are listed above. t 4. PARTICIPATION IN TAX DEFERRED EXCHANGE: The Buyer agrees to cooperate ~vith the Seller in accomplishing a tax deferred exchange "1031 Exchange for the Property.. If necessary., and not by way of limitation, the Buyer agrees that if requested by the Seller. it shall execute a substitute purchase contract for the Property. or an exchange agreement with another designated party.. Each parry, agrees ro execute any other documents m cormecnon there~vith. The Buyer shall not be obligated to incur any liability, or expanse-due to Seller's tax deferred exchange. The Buyer shall furthermore be held harmless for any cost or expense incurred on account of the determination that the exchange was improper, including but not limited to. attorneys' fees, This provision shall survive the closing. Under no circumstances shall the Buyer be required ro accept less than full warrannes of title from the Seller to the Property and Seller shall in the event of said exchange be fully bound by all of the warranties~ represemations and covenants contained herein. 15. REAL ESTATE BROKERS: 7he parnes a~_ree that no brokers have oeen revolved with this transaction and that each shall indemmfy and hold the other harmless from any claim made as against that parry for any commissmns on accoum of this transaction. 16. SELLER'S REPRESENTATIONS AND WARRANTIES: By sighing this Contract. Seller warrants, and at the closing, Seller shall agmn warrant to Buyer as follows: (a) This Contract and the documents required to be delivered by Seller hereunder ¢'Seller's Documents") do not and will not contravene any provision of any presem judgment, order, decree, wrin or injunction, or any provision of any currently applicable law or regulation. This c6nveyance of the Property. and the delivery, of this Contract and Seller's Documents will not result in a breach of. constitute a default under, or require consent pursuant to. any credit agreement, lease, indenture. mortgage, deed of trust, purchase agreement, guarantee or other instmmem to which Seller is presently a party or bv ~vhich Seller or its assets is presently bound or affectea. (b] Except as hereinafter set tbrth, there are no actual or. to the best of Seller's actual 'knowledge. without any duc5., or inquiu, threatened or contemolated suits, action or proceedings with respec~ to all or parr of the Property. i3 ~br condemnation: (ii) alleging any violation o~ 2ny currently applicable law or regulation: or [iii) which could result in a lien or tis 3zndens affecting all or any part of the Property. Seller has full power and authoriw, to execute and deliver this Contract and Seller's Documents and to per~b~ .Il obligations an~.:ng under this Contract and under Seller's Documents. 4/ During Seller's ownership of the Property. no serson has claimed an>' right to any part of the Property. adverse to the Seller. Except as specifically set rbrth above. S oiler makes no re~resentauons or xvarranues and shall not in any way be liable for any representations or warranties with respect to: (i) the condition of any buildings, structures or improvements thereon or their suitability for Buyer's intended use or for any use whatsoever: (ii) any applicable building, zoning or fire laws or regulations, or with respect to compliance therewith or with respect to the existence of or compliance with any required perrnks, if any, of any governmental agency; (iii) the availability or existence of any water, sewer or other utilities tpublic or private); or (iv) the existence, accuracy or validity of any permits issued by governmental entities having jurisdiction over tfi& PrOperty or soil repons. 17. SELLER'S WITHHOLDING TAX FOR STATE OF COLORADO: Seller and Buyer agree and acknowledge that Colorado Revised Statute Section 39-22-604.5 provides that in the case of any conveyance ora Colorado real property, interest, the person or party, providing closing and settlement services shall be required to withhold an amount equal to two percent ~2%) of the sales price or the net proceeds resulting from such conveyance, xvhichever is less. when the transferor ~s a non-resident of the State o£Colorado. Seller shall be obligated to either comply with the with_holding requirements of C.R.S. Section 39-22-604.5 or provide an affidavit in form and content satisfactory, to the person or party, providing closing and settlement services which certifies that Seller is not subject to the ~vithholding requirements. 18. SUCCESSORS AND ASSIGNS: The agreements herein contained shall bind and inure to the benefit of the respective heirs, successors and assigns of the parties hereto. 19. SURVEY: On or before fifteen (I 5) days from the Full Execution hereof, Seller. at her own expense, shall obtain an improvements survey plat of the Property, prepared and monumented in compliance with C.R.S.. Section 38-50r-t01, er seq., prepared from an on-the-~ound inspection by a surveyor registered in the State of Colorado. Such survey shall be dated as a date of no earlier than the date of the Full Execunon of this Contract and shall contain and confirm: ia) The correct legal description of the Property and the access thereto {as contmned in the title insurance commitment) by platted lot descfipnon if the Property is platted. other~vise by metes and bounds description: All property dimensions of the Propers.. total acreage and the location of the boundary, comers of the Property.; tc) The location of any and ali easemems and rights-of-way which are revealed bv a physical inspecnon of the Proper:y or the title insurance commnmem and showing the recording in£ormanon for any easement or right-or:way created by a recorded instrument: { d! The location of any and all improvements located on. under or encroaching onto the Property,. including, but not limited to. any and ali buildings, sidewalks, cinveways. paved parking areas, roads, poles, overhead power lines and fences: 8 It shall be considered a defect in title hereunder if any improvement located on the Proper~y encroaches upon adjacent lands or ii'any imnrovements on ad!acorn lands encroach upon the Properw.. In all events, the Survey shall contain sufficient information and. if necessary, shall be updated prior to Closing, so as to enable the title insurance company to delete the' called survey exceptions to coverage from the title insurance policy. Two {2~ copies of the Survey shall be delivered by the Seller to the Buyg_r on_or before the Survey Deadline. Buyer shall have for the fifteen I 153 day pefiod (the "Survey Review Period'q next following its receipt of the Survey within winch to disapprove the Survey in its discretion by giving notice thereof to Seller by 5:00 p.m. of such fifteemh (15~n) day, in winch even the provisions of Subsection 8(d) of the Contract shall apply as if the survey defect was an "unsatisfactory title condition" reqmring the Seller to use reasonable efforts to correct the same prior to the date of Closing and giving the Buyer the options contained in Subsection 8(d), if the survey defect is not correcte& If Buyer failsto give such notice, then this condition to closing shall be deemed fully satisfied. In the event the transaction contemplated by this agreement closes, the Bfiyer will pay to the Seller the cost of the survey [n excess of Two Thousand Dollars ~ $2.000.00~. In the event this transaction does not close through no fault of the Seller or is terminated by the Buyer on or before the end of the Survey Review Period. or on or before the Inspection Resolution Deadline, the cost of the survey in excess of Two Thousand Dollars ($2,000.0% shall be deducted from the earnest money deposit prior to its return to the Buyer. 20. SURVIVAL OF REPRESENTATIONS AND WARRANTIES: All representations and warranties of Seller. other than warranties of title, shall survive for a period of t~vo (2) years from the date of closing. 21 WATER RIGHTS: The Seller shall also convey to the Buyer at closing any and all water rights, both tributary, and non-tributary, whether adjudicated or unadjudicated, and all ditch and ditch rights, water wells aha well rights. State Engineer filings, well registration statements and well permits, ad)udicated and unadjudicated springs, reservoirs and reservoir rights, ponds and pona rights, historically used upon or appurtenant to the Property. The conveyance of the water fights shall be by bargain and sale deed. 22. N NO POST CO~ TRACT ENCUMBRANCES. From and after the date o fexecution of this Contract bv Seller. SeIIer wiIl not grant any interest tn the Property ro any third parry, including, but not limited to easements, licenses, profits or leases of any kind~ or create or establish any restrictive covenants or other matters affecting title to the Property. which shall not mrmmate at or prior to closmg wlthout the consent of the Buyer. which consent, except m the case of any water monitonng agreement with the City o f Aspen. may be w~rkheld at Buyer's sole discretion. With respect to the water monitonng a~eemenr with the City of Aspen. the Buyer's consent shall not be unreasonably withheld. BUYER: SELLER: THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY andYor Assigns .. _ ,kPPROVED AS TO FORM: SM~{T~4/ D~ale~l~ Pl~t~ll~l'~%'/u~ ry Open Space and Tra~il~/Director . ~ Hilary ~(n)th. P[tkin County. Manager 10 EXHIBIT A That portion of Govennnent Lot 15 lying Southwesterly of High~vay-82:-and Government Lots t 8.19.20 and 28. Section 20. T1 OS. R84W of the 6~'' P.M.. except for those portions of said Lots conveyed ro The Nature Conservancy bv Deed recorded in Book 339 at Page 540. and except rbr that portion of said Lot 20 conveyed to Lewis by Deed recorded in Book 295 at Page 371. All documents are recorded in the records of Pitkin Coun .ry. Colorado. EXHIBIT B WATER RIGHTS - JOY SMITH Name Priority ?anounr A.di. Dare Approp. Decreed Use No. Date _ Ownership Percentage U.S. Green 579 3.00 10/24/1952 06/01/1948 Domesnc undivided 66.7% .[.H. Smith 601 1.50 10/24/t952 06/17/1950 Irrigation & Warren Domestic Creek Ditch 100%