HomeMy WebLinkAboutresolution.council.104-19 RESOLUTION #104
(Series of 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, AUTHORIZING SUPPLEMENTAL BUDGET AUTHORITY
AND APPROVING A CONTRACT TO PURCHASE PROPERTY LOCATED
AT 105 ASPEN AIRPORT BUSINESS CENTER OTHERWISE KNOWN AS
ASPEN MINI-STORAGE ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a contract to
purchase property located at 105 Aspen Airport Business Center otherwise known
as Aspen Mini-Storage, a true and accurate copy of which is attached hereto as
"Exhibit A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves the 2019
supplemental budget amount of$550,000 from the City's 150 Housing
Development Fund for earnest monies paid and the contract to purchase property
located at 105 Aspen Airport Business Center otherwise known as Aspen Mini-
Storage, a copy of which is annexed hereto and incorporated herein.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 8th day of October, 2019.
73LFff-m__
Torre, Mayor
1, Linda Manning, 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 October 8, 2019.
Linda Mann in , City Clerk
Exhibit A - Contract to purchase property located at 105 Aspen Airport Business Center otherwise
known as Aspen Mini-Storage
' Aspen Snowmass Sotheby's International Realty
3 Aspen $OthebyS415 East Hyman Avenue Aspen, CO 81611
Snowmass .IA,.
4 Andrew Ernemann andrew.ernemann@sothebysrealty.com
5 Ph: 970-379-8125 Fax: 888-550-2881
6
7 he printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate
8 ommission. CBS3-5-19 Mandato 7-19
9
10 THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL
11
12 AND TAX OR OTHER COUNSEL BEFORE SIGNING.
13
14 CONTRACT TO BUY AND SELL REAL ESTATE
15
16 (COMMERCIAL)
17 (❑ Property with No Residences)
1s (®Property with Residences-Residential Addendum Attached)
19
20
21 Date: 9/20/2019
22
23
za AGREEMENT
25
26 1. AGREEMENT. Buyer agrees to buy and Seller agrees to sell the Property described below on the
27
28 terms and conditions set forth in this contract(Contract).
29
30 2. PARTIES AND PROPERTY.
31
32 2.1. Buyer. Buyer, City of Aspen(Buyer)will take title to the Property described below as
33 ❑ Joint Tenants ❑Tenants In Common ®Other TBD.
34
35 2.2. No Assignability.This Contract IS NOT assignable by Buyer unless otherwise specified in
36 Additional Provisions.
37 2.3. Seller. Aspen Mini-Storage, LLC(Seller) is the current owner of the Property described
38
39 below.
40 2.4. Property.The Property is the following legally described real estate in the County of
41 Pitkin, Colorado:
42
43 COMMUNICATION CENTER Lot: 3
44 known as No. 105 Aspen Airport Business Center, Aspen, CO 81611,
45 together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant
46
47 thereto, and all interest of Seller in vacated streets and alleys adjacent thereto except as herein excluded
43 (Property).
49
50
51 2.5. Inclusions. The Purchase Price includes the following items (Inclusions):
52 2.5.1. Inclusions -Attached. If attached to the Property on the date of this Contract, the
53 following items are included unless excluded under Exclusions: lighting, heating, plumbing, ventilating and air
54 conditioning units, TV antennas, inside telephone, network and coaxial (cable)wiring and connecting
55
56 blocks/jacks, plants, mirrors, floor coverings, intercom systems, built-in kitchen appliances, sprinkler systems
57 and controls, built-in vacuum systems (including accessories)and garage door openers (including any remote
58 controls). If checked, the following are owned by the Seller and included (leased items should be listed under
59
60 Due Diligence Documents): ❑ None ❑ Solar Panels ❑Water Softeners ®Security Systems ❑
61 Satellite Systems (including satellite dishes). If any additional items are attached to the Property after the date
62 of this Contract, such additional items are also included in the Purchase Price.
6
64 2.5.2. Inclusions -Not Attached. If on the Property, whether attached or not, on the date of
65 this Contract, the following items are included unless excluded under Exclusions: storm windows, storm
66 doors, window and porch shades, awnings, blinds, screens,window coverings and treatments, curtain rods,
67
68 drapery rods, fireplace inserts, fireplace screens, fireplace grates, heating stoves, storage sheds, carbon
69 monoxide alarms, smoke/fire detectors and all keys.
7(l
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71 2.5.3. Personal Property-Conveyance.Any personal property must be conveyed at Closing by
72 Seller free and clear of all taxes (except personal property taxes for the year of Closing), liens and
73
74 encumbrances, except N/A.
75 Conveyance of all personal property will be by bill of sale or other applicable legal instrument.
76 2.5.4. Other Inclusions. The following items, whether fixtures or personal property, are also
77
78 included in the Purchase Price: Those appurtenant to the Property including all owner/tenant
79 improvements and fixtures.
80 2.5.5. Parking and Storage Facilities.The use or ownership of the following parking facilities:
81
82 those appurtenant to the Property; and the use or ownership of the following storage facilities:
83 those appurtenant to the Property.
84
85 Note to Buyer: If exact rights to the parking and storage facilities is a concern to Buyer, Buyer should
86 investigate.
87 2.5.6. Trade Fixtures.With respect to trade fixtures, Seller and Buyer agree as follows: .
88
89 The trade fixtures to be conveyed at Closing will be conveyed by Seller free and clear of all taxes
90 (except personal property taxes for the year of Closing), liens and encumbrances, except . Conveyance will be
91 by bill of sale or other applicable legal instrument.
92
93 2.6. Exclusions.The following items are excluded (Exclusions): None
94
95 2.7. Water Rights/Well Rights.
96
97 ❑ 2.7.1. Deeded Water Rights.The following legally described water rights:
98 N/A
99
100 Any deeded water rights will be conveyed by a good and sufficient deed at Closing.
lot ❑ 2.7.2. Other Rights Relating to Water.The following rights relating to water not included in
101 §§ 2.7.1, 2.7.3, and 2.7.4,will be transferred to Buyer at Closing: N/A
103
104 ❑ 2.7.3. Well Rights. Seller agrees to supply required information to Buyer about the well.
105 Buyer understands that if the well to be transferred is a"Small Capacity Well"or a"Domestic Exempt Water
106 Well" used for ordinary household purposes, Buyer must, prior to or at Closing, complete a Change in
107
108 Ownership form for the well. If an existing well has not been registered with the Colorado Division of Water
log Resources in the Department of Natural Resources(Division), Buyer must complete a registration of existing
110 well form for the well and pay the cost of registration. If no person will be providing a closing service in
111 connection with the transaction, Buyer must file the form with the Division within sixty days after Closing. The
112
113 Well Permit#is N/A.
114 ❑ 2.7.4.Water Stock Certificates. The water stock certificates to be transferred at Closing are
115
116 as follows: N/A
117 2.7.5. Conveyance. If Buyer is to receive any rights to water pursuant to§2.7.2 (Other
118 Rights Relating to Water), §2.7.3 (Well Rights), or§ 2.7.4 (Water Stock Certificates), Seller agrees to convey
119 such rights to Buyer b executing the applicable legal instrument at Closing.
lzo 9 Y Y 9 PP� 9 9•
121
122 3. DATES, DEADLINES AND APPLICABILITY.
123 3.1 Dates and Deadlines.
124
125 - --- —— ---
126 ;Item No. Reference Event Date or Deadline
127 -- _
128 3 business days
129 1 §4.3 , Alternative Earnest Money Deadline after MEC
— — -- — ------ 1
130 itle
131 --- — -
132 2 §8.1, §8.4 Record Title Deadline 14 days after MEC
133 3 §8.2,§8.4 Record Title Objection Deadline 120 days after MEC
134 - -- -- -
135 4 §8.3 Off-Record Title Deadline 14 days after MEC
136 5 §8.3 Off-Record Title Objection Deadline 120 days after MEC
137 — —— --- ---
138 6 §8.5 Title Resolution Deadline 125 days after MEC
139 7 §8.6 Right of First Refusal Deadline
140
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141 _Owners'Association _
143 8 §7.2 Association Documents Deadline 14 days after MEC
144 9 §7.4 Association Documents Termination Deadline 120 da s after MEC
145
146 Seller's Disclosures _
147 10 §10.1 Seller's Property Disclosure Deadline 30 days after MEC
148
149 11 §10.10 Lead-Based Paint Disclosure Deadline
150 Loan and Credit
151
152 12 §5.1 New Loan Application Deadline
153 13 §5.2 New Loan Termination Deadline
154 14 §5.3 Buyer's Credit Information Deadline
155
156 15 §5.3 Disapproval of Buyer's Credit Information
157 Deadline
158 16 §5.4 _Existing Loan Deadline
159
160 17 §5.4 Existing Loan Termination Deadline
161 18 §5.4 Loan Transfer Approval Deadline
162
163 19 §4.7 Seller or Private Financing Deadline
164 Appraisal
165
166 20 §6.2 Appraisal Deadline 120 days after MEC
167 21 §6.2 Appraisal Objection Deadline 120 days after MEC
169
169 22 §6.2 Appraisal Resolution Deadline 125 days after MEC
170 Survey
171
172 23 §9.1 New ILC or New Survey Deadline 21 days after MEC
173 24 §9.3 New ILC or New Survey Objection Deadline 120 days after MEC
174
175 25 §9.3 New ILC or New Survey Resolution Deadline 125 days after MEC
176 Inspection and Due Diligence
177
178 26 §10.3 Inspection Objection Deadline 120 days after MEC
179 27 §10.3 Inspection Termination Deadline 120 days after MEC
180
181 28 §10.3 Inspection Resolution Deadline 125 days after MEC
182 29 §10.5 Property Insurance Termination Deadline 120 days after MEC
183
184 30 §10.6 Due Diligence Documents Delivery Deadline 30 days after MEC
185 31 §10.6 Due Diligence Documents Objection Deadline 120 days after MEC
186 32 §10.6 Due Diligence Documents Resolution Deadline 125 days after MEC
187
188 33 §10.6 Environmental Inspection Termination Deadline 120 days after MEC
189 34 §10.6 ADA Evaluation Termination Deadline 120 days after MEC
190
191 35 §10.7 Conditional Sale Deadline
192 36 §10.10 Lead-Based Paint Termination Deadline
193
194 37 §11.1, 11.2 Estoppel Statements Deadline 30 days after MEC
195 38 §11.3 Estoppel Statements Termination Deadline 120 day after MEC
196 Closing and Possession
197 g ---
198 39 §12.3 Closing Date 150 days after MEC
200 40 Closing Date
§17 Possession Date 9
201 After Closing and
202 41 §17 Possession Time Fundin
203
204 39 §28 Acceptance Deadline Date 9/23/2019 Monda
205 42 §28 Acceptance Deadline Time 5:00 PM MDT
206 -
207 43
208
209
210 _
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111 3.2. Applicability of Terms.Any box checked in this Contract means the corresponding provision
212 applies. If any deadline blank in § 3.1 (Dates and Deadlines) is left blank or completed with the abbreviation
213
214 "N/A", or the word "Deleted,"such deadline is not applicable and the corresponding provision containing the
215 deadline is deleted. If no box is checked in a provision that contains a selection of"None", such provision
216 means that"None"applies.
217
218
219 The abbreviation "MEC" (mutual execution of this Contract)means the date upon which both parties have
220 signed this Contract.
221
222
223 4. PURCHASE PRICE AND TERMS.
224 4.1. Price and Terms. The Purchase Price set forth below is payable in U.S. Dollars by Buyer as
225 follows:
226
227 -- -- -_—_ -- -
228 Item No. Reference Item Amount - _ Amount
2291
230 _§ 4.1 Purchase Price $11,000,000.00
_ - -- -- - - --
231 2 § 4.3 Eamest Money $5_5_0,000.00
232
233 3 § 4.5 !New Loan
__
234 4 § 4.6 lAssumption Balance
235 ---
236 5 § 4._7---Private Financing
237 6 § 4.7 Seller Financing
238 — +
239 7
240 8 — --
241
242 9 _ _ § 4.4 Cash at Closing _ $10,450,000.00
243 - 10 OTAL $11,000,000.00 $11,000,000.001
244 -- - —
245
246 4.2. Seller Concession. At Closing, Seller will credit to Buyer$ N/A (Seller Concession). The
247
248 Seller Concession may be used for any Buyer fee, cost, charge or expenditure to the extent the amount is
249 allowed by the Buyer's lender and is included in the Closing Statement or Closing Disclosure at Closing.
250 Examples of allowable items to be paid for by the Seller Concession include, but are not limited to: Buyer's
251 closing costs, loan discount points, loan origination fees, prepaid items and any other fee, cost, charge,
252
253 expense or expenditure. Seller Concession is in addition to any sum Seller has agreed to pay or credit Buyer
254 elsewhere in this Contract.
255 4.3. Earnest Money. The Earnest Money set forth in this Section, in the form of a Good
256
257 Funds, will be payable to and held by Pitkin County Title-Aspen(Earnest Money Holder), in its trust
258 account, on behalf of both Seller and Buyer. The Earnest Money deposit must be tendered, by Buyer, with this
259 Contract unless the parties mutually agree to an Alternative Earnest Money Deadline for its payment. The
260
261 parties authorize delivery of the Earnest Money deposit to the company conducting the Closing (Closing
262 Company), if any,at or before Closing. In the event Earnest Money Holder has agreed to have interest on
263 Earnest Money deposits transferred to a fund established for the purpose of providing affordable housing to
264
265 Colorado residents, Seller and Buyer acknowledge and agree that any interest accruing on the Earnest Money
266 deposited with the Earnest Money Holder in this transaction will be transferred to such fund.
267 4.3.1. Alternative Earnest Money Deadline.The deadline for delivering the Earnest
269
269 Money, if other than at the time of tender of this Contract, is as set forth as the Alternative Earnest Money
27o Deadline.
271 4.3.2. Return of Earnest Money. If Buyer has a Right to Terminate and timely
272 terminates, Buyer is entitled to the return of Earnest Money as provided in this Contract. If this Contract is
273
274 terminated as set forth in § 25 and, except as provided in §24 (Earnest Money Dispute), if the Earnest Money
275 has not already been returned following receipt of a Notice to Terminate, Seller agrees to execute and return to
276 Buyer or Broker working with Buyer, written mutual instructions (e.g., Earnest Money Release form),within
277
278 three days of Seller's receipt of such form.
279 4.4. Form of Funds; Time of Payment; Available Funds.
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281 4.4.1. Good Funds.All amounts payable by the parties at Closing, including any loan
282 proceeds, Cash at Closing and closing costs, must be in funds that comply with all applicable Colorado laws,
283
284 including electronic transfer funds, certified check, savings and loan teller's check and cashier's check(Good
285 Funds).
286 4.4.2. Time of Payment; Available Funds.All funds, including the Purchase Price to be
287
288 paid by Buyer, must be paid before or at Closing or as otherwise agreed in writing between the parties to allow
289 disbursement by Closing Company at Closing OR SUCH NONPAYING PARTY WILL BE IN DEFAULT. Buyer
290 represents that Buyer, as of the date of this Contract,®Does ❑ Does Not have funds that are immediately
291 verifiable and available in an amount not less than the amount stated as Cash at Closing in § 4.1.
292
293 4.5. New Loan. (Omitted as inapplicable)
294
295 4.6. Assumption. (Omitted as inapplicable)
296
297
298 4.7. Seller or Private Financing. (Omitted as inapplicable)
299
300
301 TRANSACTION PROVISIONS
302
303
304 S. FINANCING CONDITIONS AND OBLIGATIONS. (Omitted as inapplicable)
305
306
307 5.3. Credit Information and Buyer's New Senior Loan.(Omitted as inapplicable)
308
309 5.4. Existing Loan Review. (Omitted as inapplicable)
310
311
312 6. APPRAISAL PROVISIONS.
313 6.1. Appraisal Definition.An "Appraisal"is an opinion of value prepared by a licensed or certified
314 appraiser, engaged on behalf of Buyer or Buyer's lender,to determine the Property's market value (Appraised
315
316 Value). The Appraisal may also set forth certain lender requirements, replacements, removals or repairs
317 necessary on or to the Property as a condition for the Property to be valued at the Appraised Value.
318 6.2. Appraisal Condition. The applicable appraisal provision set forth below applies to the respective
319
320 loan type set forth in §4.5.3, or if a cash transaction (i.e. no financing), §6.2.1 applies.
321 6.2.1. ConventionallOther. Buyer has the right to obtain an Appraisal. If the Appraised Value
322 is less than the Purchase Price,or if the Appraisal is not received by Buyer on or before Appraisal Deadline
323
324 Buyer may, on or before Appraisal Objection Deadline:
325 6.2.1.1. Notice to Terminate. Notify Seller in writing, pursuant to§25.1, that this
326 Contract is terminated; or
327 6.2.1.2.Appraisal Objection. Deliver to Seller a written objection accompanied by
328
329 either a copy of the Appraisal or written notice from lender that confirms the Appraised Value is less than the
330 Purchase Price (Lender Verification).
331 6.2.1.3.Appraisal Resolution. If an Appraisal Objection is received by Seller, on or
332
333 before Appraisal Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement
334 thereof on or before Appraisal Resolution Deadline,this Contract will terminate on the Appraisal Resolution
335 Deadline, unless Seller receives Buyer's written withdrawal of the Appraisal Objection before such termination,
336 i.e., on or before expiration of Appraisal Resolution Deadline.
337
338 6.3. Lender Property Requirements. If the lender imposes any written requirements, replacements,
339 removals or repairs, including any specified in the Appraisal (Lender Requirements) to be made to the Property
340 (e.g., roof repair, repainting), beyond those matters already agreed to by Seller in this Contract, this Contract
341
342 terminates on the earlier of three days following Seller's receipt of the Lender Requirements, or Closing, unless
343 prior to termination: (1)the parties enter into a written agreement to satisfy the Lender Requirements; (2)the
344 Lender Requirements have been completed; or(3)the satisfaction of the Lender Requirements is waived in
345
346 writing by Buyer.
347 6.4. Cost of Appraisal. Cost of the Appraisal to be obtained after the date of this Contract must be
348 timely paid by®Buyer []Seller. The cost of the Appraisal may include any and all fees paid to the appraiser,
349
�,,,n appraisal management company, lender's agent or all three.
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351
352
353 7. OWNERS'ASSOCIATION. This Section is applicable if the Property is located within a Common
354 Interest Community and subject to the declaration (Association).
35` 7.1. Common Interest Community Disclosure.THE PROPERTY IS LOCATED WITHIN A
35U- COMMON INTEREST COMMUNITY AND IS SUBJECT TO THE DECLARATION FOR THE COMMUNITY.
358 THE OWNER OF THE PROPERTY WILL BE REQUIRED TO BE A MEMBER OF THE OWNERS'
359 ASSOCIATION FOR THE COMMUNITY AND WILL BE SUBJECT TO THE BYLAWS AND RULES AND
360 REGULATIONS OF THE ASSOCIATION.THE DECLARATION, BYLAWS AND RULES AND REGULATIONS
361 WILL IMPOSE FINANCIAL OBLIGATIONS UPON THE OWNER OF THE PROPERTY, INCLUDING AN
362
363 OBLIGATION TO PAY ASSESSMENTS OF THE ASSOCIATION. IF THE OWNER DOES NOT PAY THESE
364 ASSESSMENTS,THE ASSOCIATION COULD PLACE A LIEN ON THE PROPERTY AND POSSIBLY SELL
365 IT TO PAY THE DEBT. THE DECLARATION, BYLAWS AND RULES AND REGULATIONS OF THE
36
367 COMMUNITY MAY PROHIBIT THE OWNER FROM MAKING CHANGES TO THE PROPERTY WITHOUT AN
368 ARCHITECTURAL REVIEW BY THE ASSOCIATION (OR A COMMITTEE OF THE ASSOCIATION)AND
369 THE APPROVAL OF THE ASSOCIATION. PURCHASERS OF PROPERTY WITHIN THE COMMON
371 INTEREST COMMUNITY SHOULD INVESTIGATE THE FINANCIAL OBLIGATIONS OF MEMBERS OF THE
372 ASSOCIATION. PURCHASERS SHOULD CAREFULLY READ THE DECLARATION FOR THE COMMUNITY
373 AND THE BYLAWS AND RULES AND REGULATIONS OF THE ASSOCIATION.
374 7.2. Association Documents to Buyer. Seller is obligated to provide to Buyer the Association
375
376 Documents (defined below), at Seller's expense, on or before Association Documents Deadline. Seller
377 authorizes the Association to provide the Association Documents to Buyer,at Seller's expense. Seller's
378 obligation to provide the Association Documents is fulfilled upon Buyer's receipt of the Association Documents,
379
380 regardless of who provides such documents.
381 7.3. Association Documents.Association documents (Association Documents)consist of the
382 following:
383
384 7.3.1. All Association declarations, articles of incorporation, bylaws, articles of
385 organization, operating agreements, rules and regulations, party wall agreements and the Association's
386 responsible governance policies adopted under§38-33.3-209.5, C.R.S.;
387 7.3.2. Minutes of: (1)the annual owners'or members' meeting and (2)any executive
388
389 boards' or managers' meetings; such minutes include those provided under the most current annual disclosure
390 required under§ 38-33.3-209.4, C.R.S. (Annual Disclosure)and minutes of meetings, if any, subsequent to the
391 minutes disclosed in the Annual Disclosure. If none of the preceding minutes exist, then the most recent
392
393 minutes, if any (§§ 7.3.1 and 7.3.2, collectively, Governing Documents); and
394 7.3.3. List of all Association insurance policies as provided in the Association's last Annual
395 Disclosure, including, but not limited to, property, general liability, association director and officer professional
396
397 liability and fidelity policies.The list must include the company names, policy limits, policy deductibles,
398 additional named insureds and expiration dates of the policies listed (Association Insurance Documents);
399 7.3.4. A list by unit type of the Association's assessments, including both regular and
400 special assessments as disclosed in the Association's last Annual Disclosure;
401 p
402 7.3.5. The Association's most recent financial documents which consist of: (1)the
403 Association's operating budget for the current fiscal year, (2)the Association's most recent annual financial
404 statements, including any amounts held in reserve for the fiscal year immediately preceding the Association's
405
406 last Annual Disclosure, (3)the results of the Association's most recent available financial audit or review, (4)list
407 of the fees and charges (regardless of name of title of such fees or charges)that the Association's community
408 association manager or Association will charge in connection with the Closing including, but not limited to, any
409
410 fee incident to the issuance of the Association's statement of assessments (Status Letter), any rush or update
411 fee charged for the Status Letter, any record change fee or ownership record transfer fees (Record Change
412 Fee), fees to access documents, (5) list of all assessments required to be paid in advance, reserves or working
413 capital due at Closing and (6)reserve study, if any(§§7.3.4 and 7.3.5, collectively, Financial Documents);
414
415 7.3.6. Any written notice from the Association to Seller of a"construction defect action"
416 under§ 38-33.3-303.5, C.R.S.within the past six months and the result of whether the Association approved or
417 disapproved such action (Construction Defect Documents). Nothing in this Section limits the Seller's obligation
418
419 to disclose adverse material facts as required under§ 10.2 (Disclosure of Adverse Material Facts; Subsequent
4?n
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421 Disclosure; Present Condition) including any problems or defects in the common elements or limited common
422 elements of the Association property.
423
424 7.4. Conditional on Buyer's Review. Buyer has the right to review the Association Documents.
425 Buyer has the Right to Terminate under§ 25.1, on or before Association Documents Termination Deadline,
426 based on any unsatisfactory provision in any of the Association Documents, in Buyer's sole subjective
427 discretion. Should Buyer receive the Association Documents after Association Documents Deadline, Buyer,
428 Y Y
429 at Buyer's option, has the Right to Terminate under§25.1 by Buyer's Notice to Terminate received by Seller on
430 or before ten days after Buyer's receipt of the Association Documents. If Buyer does not receive the
431 Association Documents, or if Buyer's Notice to Terminate would otherwise be required to be received by Seller
432
433 after Closing Date, Buyer's Notice to Terminate must be received by Seller on or before Closing. If Seller does
434 not receive Buyer's Notice to Terminate within such time, Buyer accepts the provisions of the Association
435 Documents as satisfactory and Buyer waives any Right to Terminate under this provision, notwithstanding the
436
437 provisions of§8.6(Right of First Refusal or Contract Approval).
438
439 8. TITLE INSURANCE, RECORD TITLE AND OFF-RECORD TITLE.
440
441 8,1. Evidence of Record Title.
442 ® 8.1.1. Seller Selects Title Insurance Company. If this box is checked, Seller will select the
443 title insurance company to furnish the owner's title insurance policy at Seller's expense. On or before Record
444 Title Deadline, Seller must furnish to Buyer, a current commitment for an owner's title insurance policy (Title
445
446 Commitment), in an amount equal to the Purchase Price, or if this box is checked, ❑an Abstract of Title
447 certified to a current date. Seller will cause the title insurance policy to be issued and delivered to Buyer as
448 soon as practicable at or after Closing.
449
450 ❑ 8.1.2. Buyer Selects Title Insurance Company. If this box is checked, Buyer will select the
451 title insurance company to furnish the owner's title insurance policy at Buyer's expense. On or before Record
452 Title Deadline, Buyer must furnish to Seller, a current commitment for owner's title insurance policy(Title
453
454 Commitment), in an amount equal to the Purchase Price.
455 If neither box in §8.1.1 or§8.1.2 is checked, § 8.1.1 applies.
456 8.1.3. Owner's Extended Coverage(OEC). The Title Commitment®Will ❑Will Not
457 contain Owner's Extended Coverage(OEC). If the Title Commitment is to contain OEC, it will commit to delete
458
459 or insure over the standard exceptions which relate to: (1)parties in possession, (2)unrecorded easements,
460 (3)survey matters, (4) unrecorded mechanics' liens, (5)gap period (period between the effective date and time
461 of commitment to the date and time the deed is recorded)and (6) unpaid taxes, assessments and unredeemed
462
463 tax sales prior to the year of Closing. Any additional premium expense to obtain OEC will be paid by ❑Buyer
464 ®Seller ❑ One-Half by Buyer and One-Half by Seller❑ Other.
465 Regardless of whether the Contract requires OEC, the Title Insurance Commitment may not provide OEC or
466
467 delete or insure over any or all of the standard exceptions for OEC. The Title Insurance Company may require
468 a New Survey or New ILC, defined below, among other requirements for OEC. If the Title Insurance
469 Commitment is not satisfactory to Buyer, Buyer has a right to object under§8.5 (Right to Object to Title,
470 Resolution).
a71 )
472 8.1.4. Title Documents. Title Documents consist of the following: (1) copies of any plats,
473 declarations, covenants, conditions and restrictions burdening the Property and (2)copies of any other
474 documents (or, if illegible, summaries of such documents) listed in the schedule of exceptions (Exceptions) in
475
476 the Title Commitment furnished to Buyer(collectively, Title Documents).
477 8.1.5. Copies of Title Documents. Buyer must receive, on or before Record Title Deadline,
478 copies of all Title Documents. This requirement pertains only to documents as shown of record in the office of
479
480 the clerk and recorder in the county where the Property is located. The cost of furnishing copies of the
481 documents required in this Section will be at the expense of the party or parties obligated to pay for the
482 owner's title insurance policy.
484 8.1.6. Existing Abstracts of Title. Seller must deliver to Buyer copies of any abstracts of title
485 covering all or any portion of the Property(Abstract of Title)in Seller's possession on or before Record Title
486 Deadline.
487 8.2. Record Title. Buyer has the right to review and object to the Abstract of Title or Title
488
489 Commitment and any of the Title Documents as set forth in §8.5 (Right to Object to Title, Resolution) on or
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491 before Record Title Objection Deadline. Buyer's objection may be based on any unsatisfactory form or
49` content of Title Commitment or Abstract of Title, notwithstanding § 13, or any other unsatisfactory title
493
494 condition, in Buyer's sole subjective discretion. If the Abstract of Title, Title Commitment or Title Documents are
49` not received by Buyer on or before the Record Title Deadline, or if there is an endorsement to the Title
496 Commitment that adds a new Exception to title, a copy of the new Exception to title and the modified Title
497
498 Commitment will be delivered to Buyer. Buyer has until the earlier of Closing or ten days after receipt of such
499 documents by Buyer to review and object to: (1)any required Title Document not timely received by Buyer, (2)
500 any change to the Abstract of Title,Title Commitment or Title Documents, or(3)any endorsement to the Title
501 Commitment. If Seller receives Buyer's Notice to Terminate or Notice of Title Objection, pursuant to this§ 8.2
502
5o3 (Record Title), any title objection by Buyer is governed by the provisions set forth in § 8.5(Right to Object to
504 Title, Resolution). If Seller has fulfilled all Seller's obligations, if any, to deliver to Buyer all documents required
505 by§8.1 (Evidence of Record Title)and Seller does not receive Buyer's Notice to Terminate or Notice of Title
506
507 Objection by the applicable deadline specified above, Buyer accepts the condition of title as disclosed by the
508 Abstract of Title, Title Commitment and Title Documents as satisfactory.
509 8.3. Off-Record Title. Seller must deliver to Buyer, on or before Off-Record Title Deadline, true
511
511 copies of all existing surveys in Seller's possession pertaining to the Property Yand must disclose to Buyer all
512 easements, liens (including, without limitation, governmental improvements approved, but not yet installed)or
513 other title matters(including,without limitation, rights of first refusal and options) not shown by public records,
514 of which Seller has actual knowledge (Off-Record Matters). This Section excludes any New ILC or New
515
516 Survey governed under§ 9 (New ILC, New Survey). Buyer has the right to inspect the Property to investigate
517 if any third party has any right in the Property not shown by public records (e.g., unrecorded easement,
518 boundary line discrepancy or water rights). Buyer's Notice to Terminate or Notice of Title Objection of any
519
520 unsatisfactory condition (whether disclosed by Seller or revealed by such inspection, notwithstanding§ 8.2
521 (Record Title)and§ 13(Transfer of Title)), in Buyer's sole subjective discretion, must be received by Seller on
522 or before Off-Record Title Objection Deadline. If an Off-Record Matter is received by Buyer after the
523
524 Off-Record Title Deadline, Buyer has until the earlier of Closing or ten days after receipt by Buyer to review
525 and object to such Off-Record Matter. If Seller receives Buyer's Notice to Terminate or Notice of Title Objection
526 pursuant to this §8.3 (Off-Record Title), any title objection by Buyer is governed by the provisions set forth in §
527 8.5 (Right to Object to Title, Resolution). If Seller does not receive Buyer's Notice to Terminate or Notice of Title
528
529 Objection by the applicable deadline specified above, Buyer accepts title subject to such Off-Record Matters
530 and rights, if any, of third parties not shown by public records of which Buyer has actual knowledge.
531 8.4. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL
532
533 OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES
534 ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS
535 MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND TAX TO SUPPORT THE SERVICING OF
536
537 SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO
538 DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYERS
539 SHOULD INVESTIGATE THE SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS LOCATED BY
540 CONTACTING THE COUNTY TREASURER, BY REVIEWING THE CERTIFICATE OF TAXES DUE FOR THE
541
542 PROPERTY AND BY OBTAINING FURTHER INFORMATION FROM THE BOARD OF COUNTY
543 COMMISSIONERS, THE COUNTY CLERK AND RECORDER, OR THE COUNTY ASSESSOR.
544 A tax certificate from the respective county treasurer listing any special taxing districts that effect the
545
546 Property(Tax Certificate)must be delivered to Buyer on or before Record Title Deadline. If the Property is
547 located within a special taxing district and such inclusion is unsatisfactory to Buyer, in Buyer's sole subjective
548 discretion, Buyer may object, on or before Record Title Objection Deadline. If the Tax Certificate shows that
549 the Property 1s included in a special taxing district and is received b Buyer after the Record Title Deadline,
sso P rtY � P 9 Y Y
551 Buyer has until the earlier of Closing or ten days after receipt by Buyer to review and object to the Property's
552 inclusion in a special taxing district as unsatisfactory to Buyer.
553 8.5. Right to Object to Title, Resolution. Buyers right to object, in Buyer's sole subjective
554
555 discretion, to any title matters includes those matters set forth in §8.2(Record Title), §8.3 (Off-Record Title), §
556 8.4 (Special Taxing District) and § 13 (Transfer of Title). If Buyer objects to any title matter, on or before the
557 applicable deadline, Buyer has the following options:
558
559 8.5.1. Title Objection, Resolution. If Seller receives Buyer's written notice objecting to any
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561 title matter(Notice of Title Objection)on or before the applicable deadline and if Buyer and Seller have not
562
563 agreed to a written settlement thereof on or before Title Resolution Deadline, this Contract will terminate on
564 the expiration of Title Resolution Deadline, unless Seller receives Buyer's written withdrawal of Buyer's
565 Notice of Title Objection (i.e., Buyer's written notice to waive objection to such items and waives the Right to
S66 56Terminate for that reason), on or before expiration of Title Resolution Deadline. If either the Record Title
568 Deadline or the Off-Record Title Deadline, or both,are extended pursuant to§8.2 (Record Title), §8.3
569 (Off-Record Title)or§8.4 (Special Taxing Districts), the Title Resolution Deadline also will be automatically
570 extended to the earlier of Closing or fifteen days after Buyer's receipt of the applicable documents; or
571 8.5.2. Title Objection, Right to Terminate. Buyer may exercise the Right to Terminate under
572
573 §25.1,on or before the applicable deadline, based on any title matter unsatisfactory to Buyer, in Buyer's sole
574 subjective discretion.
575 8.6. Right of First Refusal or Contract Approval. If there is a right of first refusal on the Property
576
577 or a right to approve this Contract, Seller must promptly submit this Contract according to the terms and
578 conditions of such right. If the holder of the right of first refusal exercises such right or the holder of a right to
579 approve disapproves this Contract, this Contract will terminate. If the right of first refusal is waived explicitly or
580
581 expires, or the Contract is approved, this Contract will remain in full force and effect. Seller must promptly
582 notify Buyer in writing of the foregoing. If expiration or waiver of the right of first refusal or approval of this
583 Contract has not occurred on or before Right of First Refusal Deadline, this Contract will then terminate.
584 8.7. Title Advisory.The Title Documents affect the title, ownership and use of the Property and
585
586 should be reviewed carefully. Additionally, other matters not reflected in the Title Documents may affect the
587 title,ownership and use of the Property, including,without limitation, boundary lines and encroachments,
588 set-back requirements, area, zoning, building code violations, unrecorded easements and claims of
589
590 easements, leases and other unrecorded agreements,water on or under the Property, and various laws and
591 governmental regulations concerning land use, development and environmental matters.
592 8.7.1. OIL, GAS, WATER AND MINERAL DISCLOSURE. THE SURFACE ESTATE OF THE
593
594 PROPERTY MAY BE OWNED SEPARATELY FROM THE UNDERLYING MINERAL ESTATE AND
595 TRANSFER OF THE SURFACE ESTATE MAY NOT NECESSARILY INCLUDE TRANSFER OF THE
596 MINERAL ESTATE OR WATER RIGHTS.THIRD PARTIES MAY OWN OR LEASE INTERESTS IN OIL, GAS,
597 OTHER MINERALS, GEOTHERMAL ENERGY OR WATER ON OR UNDER THE SURFACE OF THE
598
599 PROPERTY,WHICH INTERESTS MAY GIVE THEM RIGHTS TO ENTER AND USE THE SURFACE OF THE
600 PROPERTY TO ACCESS THE MINERAL ESTATE, OIL, GAS OR WATER.
601 8.7.2. SURFACE USE AGREEMENT. THE USE OF THE SURFACE ESTATE OF THE
602
603 PROPERTY TO ACCESS THE OIL, GAS OR MINERALS MAY BE GOVERNED BY A SURFACE USE
604 AGREEMENT,A MEMORANDUM OR OTHER NOTICE OF WHICH MAY BE RECORDED WITH THE
605 COUNTY CLERK AND RECORDER.
606
607 8,7,3. OIL AND GAS ACTIVITY. OIL AND GAS ACTIVITY THAT MAY OCCUR ON OR
608 ADJACENT TO THE PROPERTY MAY INCLUDE, BUT IS NOT LIMITED TO, SURVEYING, DRILLING,
609 WELL COMPLETION OPERATIONS, STORAGE, OIL AND GAS, OR PRODUCTION FACILITIES,
610 PRODUCING WELLS, REWORKING OF CURRENT WELLS AND GAS GATHERING AND PROCESSING
611
612 FACILITIES.
613 8.7.4. ADDITIONAL INFORMATION. BUYER IS ENCOURAGED TO SEEK ADDITIONAL
614 INFORMATION REGARDING OIL AND GAS ACTIVITY ON OR ADJACENT TO THE PROPERTY,
615
616 INCLUDING DRILLING PERMIT APPLICATIONS.THIS INFORMATION MAY BE AVAILABLE FROM THE
617 COLORADO OIL AND GAS CONSERVATION COMMISSION.
618 8.7.5. Title Insurance Exclusions. Matters set forth in this Section and others, may be
619 p
62 excepted, excluded from, or not covered by the owner's title insurance policy.
621 8.8. Consult an Attorney. Buyer is advised to timely consult legal counsel with respect to all such
622 matters as there are strict time limits provided in this Contract(e.g., Record Title Objection Deadline and
623 Off-Record Title Objection Deadline).
624
625
626 9. NEW ILC, NEW SURVEY.
627 9.1. New ILC or New Survey. If the box is checked, a: 1) ❑ New Improvement Location Certificate
628
629 (New ILC); or, 2)®New Survey in the form of an ALTA Survey; is required and the following will apply:
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631 9.1.1. Ordering of New ILC or New Survey.®Seller ❑Buyer will order the New ILC or New
632 Survey, The New ILC or New Survey may also be a previous ILC or survey that is in the above-required form,
633
634 certified and updated as of a date after the date of this Contract.
635 9.1.2. Payment for New ILC or New Survey. The cost of the New ILC or New Survey will be
636 paid, on or before Closing, by:®Seller ❑Buyer or:
637
638 9.1.3. Delivery of New ILC or New Survey. Buyer, Seller, the issuer of the Title Commitment (or
639 the provider of the opinion of title if an Abstract of Title)and Buyers attorney will receive a New ILC or New
640 Survey on or before New ILC or New Survey Deadline.
641
642 9.1.4. Certification of New ILC or New Survey.The New ILC or New Survey will be certified by
643 the surveyor to all those who are to receive the New ILC or New Survey.
644
645 9.2. Buyer's Right to Waive or Change New ILC or New Survey Selection. Buyer may select a
646 New ILC or New Survey different than initially specified in this Contract if there is no additional cost to Seller or
647 change to the New ILC or New Survey Objection Deadline. Buyer may, in Buyer's sole subjective discretion,
648 waive a New ILC or New Survey if done prior to Seller incurring any cost for the same.
649 9.3. New ILC or New Survey Objection. Buyer has the right to review and object to the New ILC or
650
651 New Survey. If the New ILC or New Survey is not timely received by Buyer or is unsatisfactory to Buyer, in
652 Buyer's sole subjective discretion, Buyer may, on or before New ILC or New Survey Objection Deadline,
653 notwithstanding §8.3 or§ 13:
654
655 9.3.1. Notice to Terminate. Notify Seller in writing, pursuant to§25.1, that this Contract is
656 terminated; or
657 9.3.2. New ILC or New Survey Objection. Deliver to Seller a written description of any matter that
658
659 was to be shown or is shown in the New ILC or New Survey that is unsatisfactory and that Buyer requires
660 Seller to correct.
661 9.3.3. New ILC or New Survey Resolution. If a New ILC or New Survey Objection is received
662 by Seller, on or before New ILC or New Survey Objection Deadline and if Buyer and Seller have not agreed
663
664 in writing to a settlement thereof on or before New ILC or New Survey Resolution Deadline, this Contract will
665 terminate on expiration of the New ILC or New Survey Resolution Deadline, unless Seller receives Buyer's
666 written withdrawal of the New ILC or New Survey Objection before such termination, i.e., on or before
667
668 expiration of New ILC or New Survey Resolution Deadline.
669
670 DISCLOSURE, INSPECTION AND DUE DILIGENCE
671
672
673 10. PROPERTY DISCLOSURE, INSPECTION, INDEMNITY, INSURABILITY, DUE DILIGENCE,AND
674 SOURCE OF WATER.
675
676 10.1. Seller's Property Disclosure. On or before Seller's Property Disclosure Deadline , Seller
677 agrees to deliver to Buyer the most current version of the applicable Colorado Real Estate Commission's
678 Seller's Property Disclosure form completed by Seller to Seller's actual knowledge and current as of the date of
679 this Contract.
680
681 10.2. Disclosure of Adverse Material Facts; Subsequent Disclosure; Present Condition. Seller
682 must disclose to Buyer any adverse material facts actually known by Seller as of the date of this Contract.
683 Seller agrees that disclosure of adverse material facts will be in writing. In the event Seller discovers an
684
685 adverse material fact after the date of this Contract, Seller must timely disclose such adverse fact to Buyer.
686 Buyer has the Right to Terminate based on the Seller's new disclosure on the earlier of Closing or five days
687 after Buyer's receipt of the new disclosure. Except as otherwise provided in this Contract, Buyer acknowledges
688 that Seller is conveying the Property to Buyer in an "As Is"condition, "Where Is"and"With All Faults."
689 Y 9 P Y Y
690 10.3. Inspection. Unless otherwise provided in this Contract, Buyer, acting in good faith, has the right
691 to have inspections (by one or more third parties, personally or both)of the Property and Inclusions
692 at Buyer's expense. If 1 the physical condition of the Property, including, but not limited to, the
693 (Inspection), Y P ( ) P Y P rtY,
694 roof, walls, structural integrity of the Property, the electrical, plumbing, HVAC and other mechanical systems of
695 the Property, (2)the physical condition of the Inclusions, (3)service to the Property (including utilities and
696 communication services), systems and components of the Property (e.g., heating and plumbing), (4)any
697
698 proposed or existing transportation project, road, street or highway, or(5)any other activity, odor or noise
699 (whether on or off the Property)and its effect or expected effect on the Property or its occupants is
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70, unsatisfactory, in Buyer's sole subjective discretion, Buyer may:
702 10.3.1. Inspection Objection. On or before the Inspection Objection Deadline, deliver to
703
704 Seller a written description of any unsatisfactory condition that Buyer requires Seller to correct; or
70' 10.3.2. Terminate. On or before the Inspection Termination Deadline, notify Seller in writing,
706 pursuant to§25.1, that this Contract is terminated due to any unsatisfactory condition. Inspection
707 Termination Deadline will be on the earlier of Inspection Resolution Deadline or the dates specified in
Toa p p §
7o9 3.1 for Inspection Termination Deadline.
710 10.3.3. Inspection Resolution. If an Inspection Objection is received by Seller, on or before
711
712 Inspection Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on
713 or before Inspection Resolution Deadline, this Contract will terminate on Inspection Resolution Deadline
714 unless Seller receives Buyer's written withdrawal of the Inspection Objection before such termination, i.e., on or
715 before expiration of Inspection Resolution Deadline.
716
717 10.4. Damage, Liens and Indemnity. Buyer, except as otherwise provided in this Contract or other
718 written agreement between the parties, is responsible for payment for all inspections, tests, surveys,
719 engineering reports,or other reports performed at Buyer's request(Work)and must pay for any damage that
721 occurs to the Property and Inclusions as a result of such Work. Buyer must not permit claims or liens of any
722 kind against the Property for Work performed on the Property. Buyer agrees to indemnify, protect and hold
723 Seller harmless from and against any liability, damage, cost or expense incurred by Seller and caused by any
724 such Work, claim, or lien. This indemnity includes Seller's right to recover all costs and expenses incurred by
725
726 Seller to defend against any such liability, damage, cost or expense, or to enforce this Section, including
727 Seller's reasonable attomey fees, legal fees and expenses. The provisions of this Section survive the
728 termination of this Contract.This§ 10.4 does not apply to items performed pursuant to an Inspection
729
730 Resolution.
731 10.5. Insurability. Buyer has the right to review and object to the availability, terms and conditions of
732 and premium for property insurance (Property Insurance). Buyer has the Right to Terminate under§ 25.1, on or
733
734 before Property Insurance Termination Deadline, based on any unsatisfactory provision of the Property
735 Insurance, in Buyer's sole subjective discretion.
736 10.6. Due Diligence.
737 10.6.1. Due Diligence Documents. If the respective box is checked, Seller agrees to deliver
738
739 copies of the following documents and information pertaining to the Property (Due Diligence Documents)to
740 Buyer on or before Due Diligence Documents Delivery Deadline:
741 ® 10.6.1.1. All contracts relating to the operation, maintenance and management of the
742
743 Property;
744 ® 10.6.1.2. Property tax bills for the last 3 years;
745 ® 10.6.1.3. As-built construction plans to the Property and the tenant improvements,
746
747 including architectural, electrical, mechanical, and structural systems, engineering reports, and permanent
748 Certificates of Occupancy, to the extent now available;
749 ® 10.6.1.4. A list of all Inclusions to be conveyed to Buyer;
750
751 ® 10.6.1.5. Operating statements for the past 3 years;
752 ® 10.6.1.6. A rent roll accurate and correct to the date of this Contract;
753 ® 10.6.1.7. All current leases, including any amendments or other occupancy
754 agreements, pertaining to the Property. Those leases or other occupancy agreements pertaining to the
755 9 P 9 P Y• P Y 9 P 9
756 Property that survive Closing are as follows (Leases): To be provided by Seller
757 ® 10.6.1.8. A schedule of any tenant improvement work Seller is obligated to complete
7S9but has not yet been completed and capital improvement work either scheduled or in process on the date of
760 this Contract;
761 ® 10.6.1.9. All insurance policies pertaining to the Property and copies of any claims
762 which have been made for the past 5 years;
763 —
764 ® 10.6.1.10. Soils reports, surveys and engineering reports or data pertaining to the
765 Property(if not delivered earlier under§8.3);
766 ® 10.6.1.11. Any and all existing documentation and reports regarding Phase I and II
767
768 environmental reports, letters, test results, advisories and similar documents respective to the existence or
769 nonexistence of asbestos, PCB transformers, or other toxic, hazardous or contaminated substances, and/or
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771 underground storage tanks and/or radon gas. If no reports are in Seller's possession or known to Seller, Seller
772 warrants that no such reports are in Seller's possession or known to Seller;
773
774 ® 10.6.1.12. Any Americans with Disabilities Act reports, studies or surveys concerning
77` the compliance of the Property with said Act;
77b ® 10.6.1.13. All permits, licenses and other building or use authorizations issued by any
777
778 governmental authority with jurisdiction over the Property and written notice of any violation of any such
779 permits, licenses or use authorizations, if any; and
780 ® 10.6.1.14. Other documents and information:
781 Seller shall provide any additional documents reasonably requested by Buyer in their
782
783 possession.
734
785
786 10.6.2. Due Diligence Documents Review and Objection. Buyer has the right to review and
787 object to Due Diligence Documents. If the Due Diligence Documents are not supplied to Buyer or are
788 unsatisfactory, in Buyer's sole subjective discretion, Buyer may, on or before Due Diligence Documents
789 Objection Deadline:
790
791 10.6.2.1. Notice to Terminate. Notify Seller in writing, pursuant to§25.1, that this
792 Contract is terminated; or
793 10.6.2.2. Due Diligence Documents Objection. Deliver to Seller a written description
794
795 of any unsatisfactory Due Diligence Documents that Buyer requires Seller to correct.
796 10.6.2.3. Due Diligence Documents Resolution. If a Due Diligence Documents
797 Objection is received by Seller, on or before Due Diligence Documents Objection Deadline and if Buyer and
79
799 9 9
Seller have nota reed in writingto a settlement thereof on or before Due Diligence Documents Resolution
Boo Deadline,this Contract will terminate on Due Diligence Documents Resolution Deadline unless Seller
801 receives Buyer's written withdrawal of the Due Diligence Documents Objection before such termination, i.e., on
802 or before expiration of Due Diligence Documents Resolution Deadline.
803
804 10.6.3. Zoning. Buyer has the Right to Terminate under§ 25.1, on or before Due Diligence
805 Documents Objection Deadline, based on any unsatisfactory zoning and any use restrictions imposed by any
806 governmental agency with jurisdiction over the Property, in Buyer's sole subjective discretion.
807
808 10.6.4. Due Diligence—Environmental,ADA. Buyer has the right to obtain environmental
809 inspections of the Property including Phase I and Phase II Environmental Site Assessments, as applicable. ❑
810 Seller®Buyer will order or provide ElPhase I Environmental Site Assessment, 1:1Phase II
812 Environmental Site Assessment(compliant with most current version of the applicable ASTM E1527
813 standard practices for Environmental Site Assessments) and/or❑ , at the expense of❑Seller®Buyer
814 (Environmental Inspection). In addition, Buyer,at Buyer's expense, may also conduct an evaluation whether
815
816 the Property complies with the Americans with Disabilities Act(ADA Evaluation).All such inspections and
817 evaluations must be conducted at such times as are mutually agreeable to minimize the interruption of Seller's
818 and any Seller's tenants' business uses of the Property, if any.
819 If Buyer's Phase I Environmental Site Assessment recommends a Phase II Environmental Site
820
821 Assessment, the Environmental Inspection Termination Deadline will be extended by days (Extended
822 Environmental Inspection Objection Deadline)and if such Extended Environmental Inspection Objection
823 Deadline extends beyond the Closing Date, the Closing Date will be extended a like period of time. In such
824
325 event, ❑Seller®Buyer must pay the cost for such Phase II Environmental Site Assessment.
826 Notwithstanding Buyer's right to obtain additional environmental inspections of the Property in this §
827 10.6.4, Buyer has the Right to Terminate under§25.1, on or before Environmental Inspection Termination
828
829 Deadline, or if applicable, the Extended Environmental Inspection Objection Deadline, based on any
830 unsatisfactory results of Environmental Inspection, in Buyer's sole subjective discretion.
831 Buyer has the Right to Terminate under§25.1, on or before ADA Evaluation Termination Deadline,
832
833 based on any unsatisfactory ADA Evaluation, in Buyer's sole subjective discretion.
834 10.7. Conditional Upon Sale of Property.This Contract is conditional upon the sale and closing of
835 that certain property owned by Buyer and commonly known as N/A. Buyer has the Right to Terminate under§
836
337 25.1 effective upon Seller's receipt of Buyer's Notice to Terminate on or before Conditional Sale Deadline if
838 such property is not sold and closed by such deadline. This Section is for the sole benefit of Buyer. If Seller
839 does not receive Buyer's Notice to Terminate on or before Conditional Sale Deadline, Buyer waives any Right
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841 to Terminate under this provision.
8`1` 10.8. Source of Potable Water(Residential Land and Residential Improvements Only).
843
844 [intentionally Deleted]
84', 10.9. Existing Leases; Modification of Existing Leases; New Leases. Seller states that none of
846 the Leases to be assigned to the Buyer at the time of Closing contain any rent concessions, rent reductions or
847
848 rent abatements except as disclosed in the Lease or other writing received by Buyer.
849
850 WffithgWt 11;@ p0Q;;_AXit1@p Gop6@p%9f 061y@r, Ash6ch GnAsaRt;A0611 pot.be 1_,pFaa6QAably withheld Q;delay
851
852
853 11.1. Estoppel Statements Conditions. Buyer has the right to review and object to any Estoppel
854 Statements.
855
856
857
858 64atiag;
859 11.1.1. The commencement date of the Lease and scheduled termination date of the Lease;
860
861 11,1,2, That said Lease is in full force and effect and that there have been no subsequent
862 modifications or amendments;
863 11.1.3. The amount of any advance rentals paid, rent concessions given, and deposits paid to
864 Seller;
865
866 11.1.4. The amount of monthly (or other applicable period) rental paid to Seller;
867 11.1.5. That there is no default under the terms of said Lease by landlord or occupant; and
868 11.1.6. That the Lease to which the Estoppel Statement is attached is a true, correct and
869
870 complete copy of the Lease demising the premises it describes.
871 11.2. Seller Estoppel Statements.
872 12goperty a Gomplailed sigped Esloppal StatOMOA1, Seller agrees to complete and execute an Estoppel
873
874 Statement setting forth the information and documents required §11.1 above and deliver the same to Buyer on
875 or before Estoppel Statements Deadline.
876 11.3. Estoppel Statements Termination. Buyer has the Right to Terminate under§ 25.1, on or
877 before Estoppel Statements Termination Deadline, based on any unsatisfactory Estoppel Statement, in
878
879 Buyer's sole subjective discretion, or if Seller fails to deliver the Estoppel Statements on or before Estoppel
880 Statements Deadline. Buyer also has the unilateral right to waive any unsatisfactory Estoppel Statement.
881
882
883 CLOSING PROVISIONS
884
886 12. CLOSING DOCUMENTS, INSTRUCTIONS AND CLOSING.
887 12.1. Closing Documents and Closing Information. Seller and Buyer will cooperate with the Closing
888 Company to enable the Closing Company to prepare and deliver documents required for Closing to Buyer and
889
890 Seller and their designees. If Buyer is obtaining a loan to purchase the Property, Buyer acknowledges Buyer's
891 lender is required to provide the Closing Company, in a timely manner, all required loan documents and
892 financial information concerning Buyer's loan. Buyer and Seller will furnish any additional information and
893 documents required by Closing Company that will be necessary to complete this transaction. Buyer and Seller
894
895 will sign and complete all customary or reasonably-required documents at or before Closing.
896 12.2. Closing Instructions. Colorado Real Estate Commission's Closing Instructions ❑Are ®Are
898 Not executed with this Contract.
B99 12.3. Closing. Delivery of deed from Seller to Buyer will be at closing (Closing). Closing will be on the
900 date specified as the Closing Date or by mutual agreement at an earlier date. The hour and place of Closing
901 will be as designated by Title Company.
902
903 12.4. Disclosure of Settlement Costs. Buyer and Seller acknowledge that costs, quality and extent of
904 service vary between different settlement service providers (e.g., attorneys, lenders, inspectors and title
905 companies).
906
907
908
909
"IIn
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911 13. TRANSFER OF TITLE. Subject to Buyer's compliance with the terms and provisions of this Contract,
91, including the tender of any payment due at Closing, Seller must execute and deliver the following good and
913
914 sufficient deed to Buyer, at Closing:
915
916 ®special warranty deed ❑ general warranty deed ❑ bargain and sale deed ❑ quit claim deed ❑ personal
917
918 representative's deed ❑ deed. Seller, provided another deed is not selected, must execute and deliver a good
919 and sufficient special warranty deed to Buyer, at Closing.
920 Unless otherwise specified in §30 (Additional Provisions), if title will be conveyed using a special
921 warranty deed or general warranty deed, title will be conveyed"subject to statutory exceptions" as defined in
922 ty 9 ty Y 1 ry P
923 §38-30-113(5)(a), C.R.S.
924
925 14. PAYMENT OF LIENS AND ENCUMBRANCES. Unless agreed to by Buyer in writing, any amounts
926
927 owed on any liens or encumbrances securing a monetary sum, including, but not limited to, any governmental
928 liens for special improvements installed as of the date of Buyer's signature hereon,whether assessed or not
929 and previous years'taxes,will be paid at or before Closing by Seller from the proceeds of this transaction or
930
931 from any other source.
932
934 15. CLOSING COSTS, CLOSING FEE,ASSOCIATION FEES AND TAXES.
935 15.1. Closing Costs. Buyer and Seller must pay, in Good Funds, their respective closing costs
936 and all other items required to be paid at Closing, except as otherwise provided herein.
937 15.2. Closin Services Fee. The fee for real estate closing services must be paid at Closing by
938 ❑ Buyer ❑ Seller One-Half by Buyer and One-Half by Seller
939
940 ❑Other
941 15.3. Status Letter and Record Change Fees. At least fourteen days prior to Closing Date,
942 Seller agrees to promptly request the Association to deliver to Buyer a current Status Letter. Any fees incident
943
944 to the issuance of Association's Status Letter must be paid by ❑None ❑Buyer®Seller❑One-Half by
945 Buyer and One-Half by Seller. Any Record Change Fee must be paid by ❑ None ❑ Buyer ®Seller
946 ❑ One-Half by Buyer and One-Half by Seller .
947
948 15.4. Local Transfer Tax. ❑ The Local Transfer Tax of % of the Purchase Price must
949 be paid at Closing by®None ❑ Buyer ❑ Seller ❑ One-Half by Buyer and One-Half by Seller.
950 15.5. Private Transfer Fee. Private transfer fees and other fees due to a transfer of the Property,
951
952 payable at Closing, such as community association fees, developer fees and foundation fees, must be paid at
953 Closing by®None ❑Buyer❑Seller ❑One-Half by Buyer and One-Half by Seller.The Private Transfer
954 fee, whether one or more, is for the following association(s): in the total amount of% of the Purchase Price or
955
956 $
957 15.6. Watertransfer Fees. The Water Transfer Fees can change. The fees, as of the date of
958 this Contract, do not exceed $for:
959
960 ❑Water Stock/Certificates ❑Water District
961 ❑Augmentation Membership ❑ Small Domestic Water Company❑ and must be paid at Closing by
962 None ❑Buyer ❑Seller ❑One-Half by Buyer and One-Half by Seller
963
964 15.7. Sales and Use Tax. Any sales and use tax that may accrue because of this transaction
965 must be paid when due by®None ❑Buyer❑Seller❑ One-Half by Buyer and One-Half by Seller.
966 15.8. FIRPTA and Colorado Withholding.
967
968 15.8.1. FIRPTA. The Internal Revenue Service (IRS) may require a substantial portion of
969 the Seller's proceeds be withheld after Closing when Seller is a foreign person. If required withholding does not
970 occur,the Buyer could be held liable for the amount of the Seller's tax, interest and penalties. If the box in this
971
972 Section is checked, Seller represents that Seller ❑IS a foreign person for purposes of U.S. income taxation. If
973 the box in this Section is not checked, Seller represents that Seller is not a foreign person for purposes of U.S.
974 income taxation. Seller agrees to cooperate with Buyer and Closing Company to provide any reasonably
975 requested documents to verity Seller's foreign person status. If withholding is required, Seller authorizes
976
977 Closing Company to withhold such amount from Seller's proceeds. Seller should inquire with Seller's tax
978 advisor to determine if withholding applies or if an exemption exists.
979
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981 15.8.2. Colorado Withholding. The Colorado Department of Revenue may require a
9821portion of the Seller's proceeds be withheld after Closing when Seller will not be a Colorado resident after
983
984 Closing, if not otherwise exempt. Seller agrees to cooperate with Buyer and Closing Company to provide any
98- reasonably requested documents to verify Seller's status. If withholding is required, Seller authorizes Closing
986 Company to withhold such amount from Seller's proceeds. Seller should inquire with Seller's tax advisor to
987
988 determine if withholding applies or if an exemption exists.
989
990 16. PRORATIONS AND ASSOCIATION ASSESSMENT. The following will be prorated to the Closing
991 Date, except as otherwise provided:
992
993 16.1. Taxes. Personal property taxes, if any, special taxing district assessments, if any and
994 general real estate taxes for the year of Closing, based on ❑Taxes for the Calendar Year Immediately
995 Preceding Closing ®Most Recent Mill Levy and Most Recent Assessed Valuation, adjusted by any
996
997 applicable qualifying seniors property tax exemption, qualifying disabled veteran exemption or ❑Other .
998 16.2. Rents. Rents based on ®Rents Actually Received ❑Accrued.At Closing, Seller will
999 transfer or credit to Buyer the security deposits for all Leases assigned, or any remainder after lawful
1000
1001 deductions and notify all tenants in writing of such transfer and of the transferee's name and address. Seller
1002 must assign to Buyer all Leases in effect at Closing and Buyer must assume Seller's obligations under such
1003 Leases.
1004
1005 16.3. Association Assessments. Current regular Association assessments and dues
1006 (Association Assessments) paid in advance will be credited to Seller at Closing. Cash reserves held out of the
1007 regular Association Assessments for deferred maintenance by the Association will not be credited to Seller
1008 except as may be otherwise provided by the Governing Documents. Buyer acknowledges that Buyer may be
1009
1010 obligated to pay the Association, at Closing, an amount for reserves or working capital.Any special
1011 assessment assessed prior to Closing Date by the Association will be the obligation of❑Buyer ®Seller.
1012 Except however, any special assessment by the Association for improvements that have been installed as of
1013
1014 the date of Buyer's signature hereon, whether assessed prior to or after Closing,will be the obligation of Seller.
1015 Seller represents there are no unpaid regular or special assessments against the Property except the current
1016 regular assessments and . Association Assessments are subject to change as provided in the Governing
1017
1018 Documents.
1019 16.4. Other Prorations.Water and sewer charges, propane, interest on continuing loan and any
1020 ongoing services or utilities.
1021
1021 16.5. Final Settlement. Unless otherwise agreed in writing, these prorations are final.
1023
1024 17 POSSESSION. Possession of the Property will be delivered to Buyer on Possession Date at
1025
1026 Possession Time, subject to the Leases as set forth in § 10.6.1.7.
1027
1028 If Seller, after Closing, fails to deliver possession as specified, Seller will be subject to eviction and
1029 will be additional) liable to Buyer for payment of$ 1,000.00 per da or an
1030 y Y P Y P Y ( y part of a day notwithstanding §
1031 18.1)from Possession Date and Possession Time until possession is delivered.
1032
1033 GENERAL PROVISIONS
1034
1035
1036 18. DAY; COMPUTATION OF PERIOD OF DAYS, DEADLINE.
1037 18,1. Day.As used in this Contract,the term"day" means the entire day ending at 11:59 p.m., United
1038
1039 States Mountain Time (Standard or Daylight Savings, as applicable).
1040 18.2. Computation of Period of Days, Deadline. In computing a period of days (e.g., three days after
1041 MEC), when the ending date is not specified, the first day is excluded and the last day is included. If any
1042
1043 deadline falls on a Saturday, Sunday or federal or Colorado state holiday(Holiday), such deadline Owin ❑
1044 Will Not be extended to the next day that is not a Saturday, Sunday or Holiday. Should neither box be
1045 checked, the deadline will not be extended.
1046
1047
1048 19. CAUSES OF LOSS, INSURANCE; DAMAGE TO INCLUSIONS AND SERVICES; CONDEMNATION;
1049 AND WALK-THROUGH. Except as otherwise provided in this Contract, the Property, Inclusions or both will be
1 n';(;
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1051 delivered in the condition existing as of the date of this Contract, ordinary wear and tear excepted.
1052 19.1. Causes of Loss, Insurance. In the event the Property or Inclusions are damaged by fire, other
1053
1054 Perils or causes of loss prior to Closing (Property Damage)in an amount of not more than ten percent of the
1055 total Purchase Price and if the repair of the damage will be paid by insurance (other than the deductible to be
1056 paid by Seller),then Seller, upon receipt of the insurance proceeds,will use Seller's reasonable efforts to
1057 repair the Property before Closing Date. Buyer has the Right to Terminate under 25.1, on or before Closing
1058 p P Y 9 Y 9 § 9
1059 Date, if the Property is not repaired before Closing Date, or if the damage exceeds such sum. Should Buyer
1060 elect to carry out this Contract despite such Property Damage, Buyer is entitled to a credit at Closing for all
1061 insurance proceeds that were received by Seller(but not the Association, if any) resulting from damage to the
1062
1063 Property and Inclusions, plus the amount of any deductible provided for in the insurance policy. This credit may
1064 not exceed the Purchase Price. In the event Seller has not received the insurance proceeds prior to Closing,
1065 the parties may agree to extend the Closing Date to have the Property repaired prior to Closing or, at the
1066
1067 option of Buyer, (1)Seller must assign to Buyer the right to the proceeds at Closing, if acceptable to Seller's
1068 insurance company and Buyer's lender; or(2)the parties may enter into a written agreement prepared by the
1069 parties or their attorney requiring the Seller to escrow at Closing from Seller's sale proceeds the amount Seller
1071
1071 has received and will receive due to such damage, not exceeding the total Purchase Price, plus the amount of
1072 any deductible that applies to the insurance claim.
1073 19.2. Damage, Inclusions and Services. Should any Inclusion or service (including utilities and
1074 communication services), system, component or fixture of the Property collective) Service e. heating or
1075 ) Y P P Y( Y ) ( 9 . 9
1076 plumbing), fail or be damaged between the date of this Contract and Closing or possession, whichever is
1077 earlier, then Seller is liable for the repair or replacement of such Inclusion or Service with a unit of similar size,
1078 age and quality, or an equivalent credit, but only to the extent that the maintenance or replacement of such
1079
1081 Inclusion or Service is not the responsibility of the Association, if any, less any insurance proceeds received by
1081 Buyer covering such repair or replacement. If the failed or damaged Inclusion or Service is not repaired or
1082 replaced on or before Closing or possession,whichever is earlier, Buyer has the Right to Terminate under§
1083
1084 25.1, on or before Closing Date, or, at the option of Buyer, Buyer is entitled to a credit at Closing for the repair
1085 or replacement of such Inclusion or Service. Such credit must not exceed the Purchase Price. If Buyer receives
1086 such a credit, Seller's right for any claim against the Association, if any,will survive Closing.
1087 19.3. Condemnation. In the event Seller receives actual notice prior to Closing that a pending
1088
1089 condemnation action may result in a taking of all or part of the Property or Inclusions, Seller must promptly
1090 notify Buyer, in writing, of such condemnation action. Buyer has the Right to Terminate under§ 25.1, on or
1091 before Closing Date, based on such condemnation action, in Buyer's sole subjective discretion. Should Buyer
1092
1093 elect to consummate this Contract despite such diminution of value to the Property and Inclusions, Buyer is
1094 entitled to a credit at Closing for all condemnation proceeds awarded to Seller for the diminution in the value of
1095 the Property or Inclusions but such credit will not include relocation benefits or expenses, or exceed the
1096
1097 purchase Price.
1098 19.4. Walk-Through and Verification of Condition. Buyer, upon reasonable notice, has the right to
1099 Walk through the Property prior to Closing to verify that the physical condition of the Property and Inclusions
1110 complies with this Contract.
1101 P
1102
1103 20. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this Contract, Buyer and Seller
1104 acknowledge that the respective broker has advised that this Contract has important legal consequences and
1105
1106 has recommended the examination of title and consultation with legal and tax or other counsel before signing
1107 this Contract.
1108
1109
1110 21 TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence for all dates and deadlines
1111 in this Contract. This means that all dates and deadlines are strict and absolute. If any payment due, including
1112 Earnest Money, is not paid, honored or tendered when due, or if any obligation is not performed timely as
1113
1114 provided in this Contract or waived,the non-defaulting party has the following remedies:
1115 21.1. If Buyer is in Default:
1116 ❑ 21.1.1. Specific Performance. Seller may elect to cancel this Contract and all Earnest
1117 Money(whether or not paid by Buyer)will be paid to Seller and retained by Seller. It is agreed that the Earnest
1118
1119 Money is not a penalty and the Parties agree the amount is fair and reasonable. Seller may recover such
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1121 additional damages as may be proper.Alternatively, Seller may elect to treat this Contract as being in full force
1122 and effect and Seller has the right to specific performance or damages, or both.
1123
1124 21.1.2. Liquidated Damages, Applicable. This § 21.1.2 applies unless the box in §21.1.1.
1125 is checked. Seller may cancel this Contract. All Earnest Money(whether or not paid by Buyer)will be paid to
1126 Seller and retained by Seller. It is agreed that the Earnest Money specified in §4.1 is LIQUIDATED DAMAGES
1127
1128 and not a penalty,which amount the parties agree is fair and reasonable and (except as provided in §§ 10.4,
1129 22, 23 and 24), said payment of Earnest Money is SELLER'S ONLY REMEDY for Buyer's failure to perform
1130 the obligations of this Contract. Seller expressly waives the remedies of specific performance and additional
1131 damages.
1132
1133 21.2. If Seller is in Default: Buyer may elect to treat this Contract as canceled, in which case all
1134 Earnest Money received hereunder will be returned to Buyer and Buyer may recover such damages as may be
1135 proper. Alternatively, Buyer may elect to treat this Contract as being in full force and effect and Buyer has the
1136
1137 right to specific performance or damages, or both.
1138
1139 22. LEGAL FEES, COST AND EXPENSES. Anything to the contrary herein notwithstanding, in the event
1140 of an arbitration or litigation relating to this Contract, prior to or after Closing Date,the arbitrator or court must
1141 Y 9 9 P 9
1142 award to the prevailing party all reasonable costs and expenses, including attorney fees, legal fees and
1143 expenses.
1144
1145
1146
1147
1148
1149
1150
1151
1152
1153
1154
1155
1156
1157
1158
1159 Q#40'16929F000I�
1160
1161 24. EARNEST MONEY DISPUTE. Except as otherwise provided herein, Earnest Money Holder must
1162
1163 release the Earnest Money following receipt of written mutual instructions, signed by both Buyer and Seller. In
1164 the event of any controversy regarding the Earnest Money, Earnest Money Holder is not required to release the
1165 Earnest Money. Earnest Money Holder, in its sole subjective discretion, has several options: (1)wait for any
1166 proceeding between Buyer and Seller; 2 interplead all parties and deposit Earnest Mone into a court of
1167 P 9 Y ( )� P P P Y
1168 competent jurisdiction (Earnest Money Holder is entitled to recover court costs and reasonable attorney and
1169 legal fees incurred with such action); or(3)provide notice to Buyer and Seller that unless Earnest Money
1170 Holder receives a copy of the Summons and Complaint or Claim (between Buyer and Seller)containing the
1171
1172 case number of the lawsuit(Lawsuit)within one hundred twenty days of Earnest Money Holder's notice to the
1173 parties, Earnest Money Holder is authorized to return the Earnest Money to Buyer. In the event Earnest Money
1174 Holder does receive a copy of the Lawsuit and has not interpled the monies at the time of any Order, Earnest
1175
1176 Money Holder must disburse the Earnest Money pursuant to the Order of the Court.
1177 This Section will survive cancellation or termination of this Contract.
1178
1179
1180 25 TERMINATION.
1181 25.1. Right to Terminate. If a party has a right to terminate, as provided in this Contract (Right to
1182 Terminate), the termination is effective upon the other party's receipt of a written notice to terminate (Notice to
1183 Terminate), provided such written notice was received on or before the applicable deadline specified in this
1184
1185 Contract. If the Notice to Terminate is not received on or before the specified deadline, the party with the Right
1186 to Terminate accepts the specified matter, document or condition as satisfactory and waives the Right to
1187 Terminate under such provision.
1188
1189 25.2.'Effect of Termination. In the event this Contract is terminated, all Earnest Money received
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hereunder will be returned to Buyer and the parties are relieved of all obligations hereunder, subject to§§ 10.4,
22, 23 and 24.
26. ENTIRE AGREEMENT, MODIFICATION,SURVIVAL; SUCCESSORS. This Contract, its exhibits and
specified addenda, constitute the entire agreement between the parties relating to the subject hereof and any
prior agreements pertaining thereto,whether oral or written, have been merged and integrated into this
Contract. No subsequent modification of any of the terms of this Contract is valid, binding upon the parties, or
enforceable unless made in writing and signed by the parties. Any right or obligation in this Contract that, by its
terms, exists or is intended to be performed after termination or Closing survives the same. Any successor to a
party receives the predecessor's benefits and obligations of this Contract.
27. NOTICE, DELIVERY AND CHOICE OF LAW.
27.1. Physical Delivery and Notice. Any document, or notice to Buyer or Seller must be in writing,
except as provided in § 27.2 and is effective when physically received by such party, any individual named in
this Contract to receive documents or notices for such party, Broker, or Brokerage Firm of Broker working with
such party(except any notice or delivery after Closing must be received by the party, not Broker or Brokerage
Firm).
27.2. Electronic Notice. As an alternative to physical delivery, any notice, may be delivered in
electronic form to Buyer or Seller, any individual named in this Contract to receive documents or notices for
such party, Broker or Brokerage Firm of Broker working with such party (except any notice or delivery after
Closing must be received by the party, not Broker or Brokerage Firm)at the electronic address of the recipient
by facsimile, email or .
27.3. Electronic Delivery. Electronic Delivery of documents and notice may be delivered by: (1) email
at the email address of the recipient,
resiFiept•
27.4. Choice of Law. This Contract and all disputes arising hereunder are governed by and construed
in accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a
contract in Colorado for real property located in Colorado.
28. NOTICE OF ACCEPTANCE, COUNTERPARTS.This proposal will expire unless accepted in writing,
by Buyer and Seller, as evidenced by their signatures below and the offering party receives notice of such
acceptance pursuant to§27 on or before Acceptance Deadline Date and Acceptance Deadline Time. If
accepted,this document will become a contract between Seller and Buyer. A copy of this Contract may be
executed by each party, separately and when each party has executed a copy thereof, such copies taken
together are deemed to be a full and complete contract between the parties.
29. GOOD FAITH. Buyer and Seller acknowledge that each party has an obligation to act in good faith
including, but not limited to, exercising the rights and obligations set forth in the provisions of Financing
Conditions and Obligations; Title Insurance, Record Title and Off-Record Title; New ILC, New Survey;
and Property Disclosure, Inspection, Indemnity, Insurability, Due Diligence and Source of Water.
ADDITIONAL PROVISIONS AND ATTACHMENTS
30. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the
Colorado Real Estate Commission.)
A. The language contained in this section has not been approved by the Colorado Real Estate
Commission. It was prepared by Aspen Snowmass Sotheby's International Realty.
B. Regarding Paragraph 2.2, No Assignability: This paragraph is hereby deleted. This Contract
shall be assignable by Buyer without prior agreement of Seller.
C. Regarding Paragraph 9.1, NEW SURVEY.• On or before the New Survey Deadline, Seller shall
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provide to Buyer, at Seller's expense, four(4) copies of a current ALTA Survey prepared by a
licensed surveyor(the "New Survey) within six (6) months of the date of this Contract. The
New Survey shall be certified to Seller, Buyer, the Title Company, and any lender designated
by Buyer as reasonably requested by Buyer. The corners of the Property shall be staked and
flagged on the day the New Survey is undertaken. Seller shall notify Buyer when the staking
has been completed. Buyer shall have until the New Survey Objection Deadline to review and
approve the matters revealed by the New Survey. If, on or before the New Survey Objection
Deadline, Buyer notifies Seller or Broker in writing of their dissatisfaction regarding the New
Survey, and the parties cannot come to an acceptable resolution by the New Survey
Resolution Deadline, then this Contract shall be terminated and considered null and void, and
any earnest monies paid hereunder and all interest earned thereon shall be immediately
returned to the Buyer.
D. Seller shall provide Buyer with a current rent roll prior to the Due Diligence Documents
Delivery Deadline.
E. The Seller shall provide the Buyer a template of the lease that each new tenant enters into
upon the rental of a unit("Lease Template") within three(3) days of MEC. Buyer shall have
three (3) days to approve the Lease Template which shall be used for all rentals until the
Closing Date. Seller shall have the right to enter into new leases using the approved Lease
Template until the Closing Date. Buyer shall approve any deviations from the Lease Template
within three (3) days of any written request for a deviation by the Seller. Seller shall provide a
monthly report to Seller on any change in status of the tenants.
F. The Buyer shall have until thirty(30) days after MEC to obtain Aspen City Council approval
of the Contract. In the event the Contract is approved by the Aspen City Council then Buyer
shall provide written notice to Seller on or before thirty(31) days after MEC. If the Contract is
not approved by Aspen City Council or Buyer does not provide Seller written notice of the
approval on or before thirty(31) days after MEC then the Contract shall be considered
terminated and all earnest money shall be returned to the Buyer.
G. Seller shall assign all of the existing leases for the storage units and shall make
representations and warranties as to the status of each of the leases on the units including
providing the information under Section 11.1.1 through 11.1.6.
H. Buyer shall receive a credit for all pre-paid accounts prorated to Closing; Buyer shall credit
the Seller 100% for all accounts that are in arrears thirty(30) days or less, and there shall be
no credit to the Seller for accounts in arrears greater than thirty(30) days.
1. Any Notice provided by Buyer to Seller under this Contract shall also be required to be
provided to Seller's attorneys, Richard A. Knezevich and Sarah M. Oates at the following
addresses:
Oates, Knezevich, Gardenswartz, Kelly& Morrow, P.C. 533 East Hopkins Avenue, Third Floor
Aspen, CO 81611
Phone:970-920-1700
Fax:970-920-1121
rak@okglaw.com
smo@okglaw.com
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31. ATTACHMENTS.
31.1. The following documents are a part of this Contract:
A. Residential Addendum to Contract to Buy and Sell Real Estate
31.2. The following documents have been provided but are not a part of this Contract:
SIGNATURES
- Date: Z q
Buyer: Clty ofAspen
By: Sara Ott, City Manager
[NOTE: If th' offer is being countered or rejected, do not sign this do/current.
v Date:
Seller: Aspen Mini-Storage, LLC
By: Susan V. Clark, Manager
END OF CONTRACT TO BUY AND SELL REAL ESTATE
32. BROKER'S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE.
(To be completed by Broker working with Buyer)
Broker ❑ Does ® Does Not acknowledge receipt of Earnest Money deposit. Broker agrees that if
Brokerage Firm is the Earnest Money Holder and, except as provided in § 24, if the Earnest Money has not
already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest
Money Holder will release the Earnest Money as directed by the written mutual instructions. Such release of
Earnest Money will be made within five days of Earnest Money Holder's receipt of the executed written mutual
instructions, provided the Earnest Money check has cleared.
Although Broker is not a party to the Contract, Broker agrees to cooperate, upon request, with any mediation
requested under§23.
Broker is working with Buyer as a ❑ Buyer's Agent ® Transaction-Broker in this transaction. ❑This is a
Change of Status
❑Customer. Broker has no brokerage relationship with Buyer. See§33 for Broker's brokerage relationship
with Seller.
Brokerage Firm's compensation or commission is to be paid by ❑ Listing Brokerage®Buyer ❑Other .
Brokerage Firm's Name: Aspen Snowmass Sotheby's International Realty
Brokerage Firm's License#:
�Il
Date: 9/20/2019
Broker's Name: Andrew Ernemann
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Broker's License* 100028587
Address: 415 East Hyman Avenue Aspen, CO 81611
Ph: 970-379-8125 Fax: 888-550-2881 Email Address: andrew.ernemann@sothebysrealty.com
33. BROKER'S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE.
(To be completed by Broker working with Seller)
Broker ❑ Does ®Does Not acknowledge receipt of Earnest Money deposit. Broker agrees that if Brokerage
Firm is the Earnest Money Holder and, except as provided in §24, if the Earnest Money has not already been
returned following receipt of a Notice to Terminate or other written notice of termination, Earnest Money Holder
will release the Earnest Money as directed by the written mutual instructions. Such release of Earnest Money
will be made within five days of Earnest Money Holder's receipt of the executed written mutual instructions,
provided the Earnest Money check has cleared.
Although Broker is not a party to the Contract, Broker agrees to cooperate, upon request,with any mediation
requested under§23.
Broker is working with Seller as a ❑ Seller's Agent ® Transaction-Broker in this transaction. ❑This is a
Change of Status.
❑ Customer. Broker has no brokerage relationship with Seller. See§32 for Broker's brokerage relationship
with Buyer.
Brokerage Firm's compensation or commission is to be paid by ❑ Seller®Buyer❑ Other .
Brokerage Firm's Name: Aspen Snowmass Sothebys International Realty
Brokerage Firm's License#: EC 100038598
Broker's
Name: Date: 9/20/2019
Broker's License#: 100028587
Address: 415 East Hyman Avenue Aspen, CO 81611
Ph: 970-925-6060 Fax: 888-550-2881 Email Address: andrew.ernemann@sothebysrealty.com
CBS3-5-19. CONTRACT TO BUY AND SELL REAL ESTATE (COMMERCIAL)
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CBS3-5-19. CONTRACT TO BUY AND SELL REAL ESTATE- Commercial Page 21 of 21
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I Aspen Snowmass Sotheby's International Realty
2 Aspen Sothebys 415 East Hyman Avenue Aspen, CO 81611
3 Snowmass *1— ... •F- Andrew Ernemann andrew.ernemann@sotheb srealt com
4 Y Y�
5 Ph: 970-379-8125 Fax: 888-550-2881
6 The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate
7 Commission. RA33-10-18 Mandato 1-19
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9 THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT
10 LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING.
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12 RESIDENTIAL ADDENDUM
13 TO CONTRACT TO BUY AND SELL REAL ESTATE
14
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16 Date: 9/20/2019
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19 1. ADDENDUM TO CONTRACT TO BUY AND SELL REAL ESTATE. This Residential Addendum
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21 (Addendum) is made a part of the following contract that is checked:
2' ❑Contract to Buy and Sell Real Estate(Land)between Seller and Buyer(Contract)
23 dated relating to the sale of the Property, or;
24 ®Contract to Buy and Sell Real Estate(Commercial) between Seller and Buyer(Contract)dated
25 9/20/2019 relating to the sale of the Property
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28 known as 105 Aspen Airport Business Center, Aspen, CO 81611(Property).
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30 This Addendum shall control in the event of any conflict with the Contract. Except as modified, all other
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32 terms and provisions of the Contract shall remain the same.Terms used herein shall have the same
33 meaning as in the Contract.
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35 2. PURPOSE.
36 The Property contains, in part, one or more residences but the Contract does not contain required
37 provisions that are set forth in this Addendum. The Contract provisions are added or amended as follows:
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39 4.5.3. Loan Limitations. Bu er may purchase the Property using any of the following types of
40 loan: ®Conventional®FHA®VA Bond Other TBD.
41 4.5.4. Loan Estimate—Monthly Payment and Loan Costs. Buyer is advised to review the
42 terms,conditions and costs of Buyer's New Loan carefully. If Buyer is applying for a residential loan, the
43 lender generally must provide Buyer with a Loan Estimate within three days after Buyer completes a loan
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45 application. Buyer also should obtain an estimate of the amount of Buyer's monthly mortgage payment.
46 6.2.2. FHA. It is expressly agreed that, notwithstanding any other provisions of this Contract,
47 the purchaser(Buyer)shall not be obligated to complete the purchase of the Property described herein or
48 to incur any penalty by forfeiture of Earnest Money deposits or otherwise unless the purchaser(Buyer)has
49 been given, in accordance with HUD/FHA or VA requirements, a written statement issued by the Federal
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51 Housing Commissioner, Department of Veterans Affairs, or a Direct Endorsement lender, setting forth the
52 appraised value of the Property of not less than $ . The Purchaser(Buyer)shall have the privilege and
53 option of proceeding with the consummation of this Contract without regard to the amount of the appraised
54 valuation. The appraised valuation is arrived at to determine the maximum mortgage the Department of
55 Housing and Urban Development will insure. HUD does not warrant the value nor the condition of the
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57 Property. The purchaser(Buyer)should satisfy himself/herself that the price and condition of the Property
58 are acceptable.
59 6.2.3. VA. It is expressly agreed that, notwithstanding any other provisions of this Contract,
60 the purchaser(Buyer)shall not incur any penalty by forfeiture of Earnest Money or otherwise or be
61 obligated to complete the purchase of the Property described herein, if the Contract Purchase Price or cost
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63 exceeds the reasonable value of the Property established by the Department of Veterans Affairs, The
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64 purchaser(Buyer)shall, however, have the privilege and option of proceeding with the consummation of
65 this Contract without regard to the amount of the reasonable value established by the Department of
66 Veterans Affairs.
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68 10.8. Source of Potable Water(Residential Land and Residential Improvements Only).
69 Buyer❑ Does® Does Not acknowledge receipt of a copy of Seller's Property Disclosure or Source of
70 Water Addendum disclosing the source of potable water for the Property. Buyer ❑ Does❑ Does Not
71 acknowledge receipt of a copy of the current well permit. ®There is No Well.
72 Note to Buyer: SOME WATER PROVIDERS RELY, TO VARYING DEGREES, ON NONRENEWABLE
73 GROUND WATER. YOU MAY WISH TO CONTACT YOUR PROVIDER(OR INVESTIGATE THE
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75 DESCRIBED SOURCE)TO DETERMINE THE LONG-TERM SUFFICIENCY OF THE PROVIDER'S
76 WATER SUPPLIES.
77 10.10. Lead-Based Paint.
78 10.10.1. Lead-Based Paint Disclosure Unless exempt, if the Property includes one
79 or more residential dwellings constructed or a building permit was issued prior to January 1, 1978, for the
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81 benefit of Buyer, Seller and all required real estate licensees must sign and deliver to Buyer a completed
82 Lead-Based Paint Disclosure (Sales)form on or before the Lead-Based Paint Disclosure Deadline. If
83 Buyer does not timely receive the Lead-Based Paint Disclosure, Buyer may waive the failure to timely
84 receive the Lead-Based Paint Disclosure, or Buyer may exercise Buyer's Right to Terminate under§ 25.1
85 by Seller's receipt of Buyer's Notice to Terminate on or before the expiration of the Lead-Based Paint
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87 Termination Deadline.
88 10.10.2. Lead-Based Paint Assessment If Buyer elects to conduct or obtain a risk
89 assessment or inspection of the Property for the presence of Lead-Based Paint or Lead-Based Paint
90 hazards, Buyer has a Right to Terminate under§25.1 by Seller's receipt of Buyer's Notice to Terminate on
91 or before the expiration of the Lead-Based Paint Termination Deadline. If Buyer's Notice to Terminate
92 would otherwise be required to be received by Seller after Closing Date, Buyer's Notice to Terminate must
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94 be received by Seller on or before Closing. Buyer may elect to waive Buyer's right to conduct or obtain a
95 risk assessment or inspection of the Property for the presence of Lead-Based Paint or Lead-Based Paint
96 hazards. If Seller does not receive Buyer's Notice to Terminate within such time, Buyer accepts the
97 condition of the Property relative to any Lead-Based Paint as satisfactory, and Buyer waives any Right to
98 Terminate under this provision.
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100 10.11. Carbon Monoxide Alarms. Note: If the improvements on the Property have a
101 fuel-fired heater or appliance, a fireplace, or an attached garage and include one or more rooms lawfully
102 used for sleeping purposes (Bedroom), the parties acknowledge that Colorado law requires that Seller
103 assure the Property has an operational carbon monoxide alarm installed within fifteen feet of the entrance
104 to each Bedroom or in a location as required by the applicable building code.
105 10.12. Methamphetamine Disclosure. If Seller knows that methamphetamine was ever
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manufactured, processed, cooked, disposed of, used or stored at the Property, Seller is required to
disclose such fact. No disclosure is required if the Property was remediated in accordance with state
standards and other requirements are fulfilled pursuant to§25-18.5-102, C.R.S. Buyer further
acknowledges that Buyer has the right to engage a certified hygienist or industrial hygienist to test whether
the Property has ever been used as a methamphetamine laboratory. Buyer has the Right to Terminate
under§25.1, upon Seller's receipt of Buyer's written Notice to Terminate, notwithstanding any other
provision of this Contract, based on Buyer's tgst results that indicate the Property has been contaminated
with methamphetamine, but has not been remediated to meet the standards established by rules of the
State Board of Health promulgated pursuant to§25-18.5-102, C.R.S. Buyer must promptly give written
notice to Seller of the results of the test.
19.5 Home Warranty. Seller and Buyer are aware of the existence of pre-owned home
warranty programs that may be purchased and may cover the repair or replacement of such Inclusions.
Date: 2—f 9
Buyer: City of Aspen
By: Sara Ott, City Manager
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Buyer: Date:
,ij, / �-� Date:
Seller:Aspen Mini-Storage, LLC
By: Susan V. Clark, Manager
Seller: Date:
(RA33-8-18) (Mandatory 1-19) RESIDENTIAL ADDENDUM TO CONTRACT TO BUY AND SELL
REAL ESTATE
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