Loading...
HomeMy WebLinkAbout30_SOLDNER_AGREEMENT30.1City of Aspen/Soldner***/Bar/X Ranch LLC Agreement agreement: City of Aspen/Paul E. and Virginia I. Soldner Family Limited Partnership, LLLP/Bar/X Ranch LLC section 30 30.2 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission This page intentionally left blank 30.3City of Aspen/Soldner***/Bar/X Ranch LLC Agreement 1 AGREEMENT TO BUY AND SELL REAL ESTATE THIS AGREEMENT, made and entered on the date of the last signature of the parties hereto, by and between the City of Aspen, a Colorado home rule municipal corporation (“City”), Paul E. and Virginia I. Soldner Family Limited Partnership, LLLP, (“Soldner”) and Bar/X Ranch LLC, a Colorado limited liability company (“Bar/X”). WHEREAS, the City and Bar/X have entered into that certain Amended and Restated Pre-Annexation Agreement dated January 14, 2004, setting forth a proposed Development Plan for free market and affordable housing development on land owned by Bar/X Ranch and the Burlingame Ranch owned by the City; and WHEREAS, Soldner and Bar/X desire the access road from Highway 82 to the proposed development on the aforementioned land be aligned on the westerly side of the Soldner property; and WHEREAS the City has determined that the best alignment of the access road should be on the westerly side of the Soldner property, in part, to accommodate the wishes of Soldner and Bar/X; and WHEREAS, the parties hereto desire the westerly alignment for the access road to mitigate as much as possible the environmental and aesthetic disturbance that will be caused by the construction of such an access road; and WHEREAS, the parties hereto have determined that the best alignment of such a westerly access road will require that it be constructed on a portion of the Soldner property; and WHEREAS, the parties hereto agree on the alignment that the access road should traverse and desire to exchange certain portions of their property to accommodate this alignment; and WHEREAS, the parties hereto have come to an agreement as to the proper legal boundaries of the Soldner property in relationship to the properties owned by the City and Bar/X and the parties desire to memorialize that agreement by exchanging certain quit claim deeds. NOW, THEREFORE, the parties hereto, for the consideration hereinafter set forth, agree as follows: 1 The Access Road Alignment The parties hereto agree that the access road to serve the Burlingame Affordable Housing Village and certain portions of the Free Market component of the Bar/X Ranch as further described in that certain Amended and Restated Pre-Annexation Agreement dated January 16, 2004, shall be on the westerly side of the Soldner property the alignment of which is generally shown and depicted on the map appended hereto as Exhibit A and by this reference made a part hereof. 30.4 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission 2 2 Parties and Property 2a City shall quit claim deed to Soldner, conditional upon the terms and conditions set forth below, the following described real estate property situated in the County of Pitkin, State of Colorado (the “Property”), to wit: Legal description to be determined and attached as provided in paragraph 21 below. Subject, however, to that certain Conservation Easement recorded in the Pitkin County Clerk’s Office with a Reception No. 484728 Depicted as Parcel A on Exhibit A appended hereto. 2b Soldner shall quit claim deed to City, conditional upon the terms and conditions set forth below, the following described real estate property situated in the County of Pitkin, State of Colorado (the “Property”), to wit: Legal description to be determined and attached as provided in paragraph 21 below. Depicted as Parcel B on Exhibit A appended hereto. 2c Bar/X shall quit claim deed to Soldner, conditional upon the terms and conditions set forth below, the following described water rights for use on the Soldner Property, equivalent to 1 acre foot per acre of historically irrigated land on the Soldner Property. Bar/X may install a measuring device and/or regulating device at an appropriate location along the ditch referred to in paragraph 5.e.iv below, in order to monitor and apportion the water conveyed hereby. These water rights will be delivered to the Soldner Property in the Bar/X irrigation ditch that is currently located along Stage road and the Easterly boundary of the Soldner Property (the “Water Rights”). Soldners may, at their option, elect not to take title to the Water Rights. In the event Soldners elect not to take title to the Water Rights, Bar/X will lease the Water Rights to Soldners for no more than $1.00 per year, for a term of no less than 50 years, with options on the part of Soldners to renew for additional 50 year periods. In the event the Soldners lease the Water Rights, the lease will provide that the Soldners will have the same rights to use the Water Rights as if they had been conveyed to the Soldners. The Water Rights are described as follows: Description to be determined and attached as provided in paragraph 21 below. 2d City shall quit claim deed to Soldner, conditional upon the terms and conditions set forth below, the following described real estate property situated in the County of Pitkin, State of Colorado (the “Property”), to wit: Legal description to be determined and attached as provided in paragraph 21 below. Depicted as Parcel D on Exhibit A appended hereto. 2e City shall quit claim deed to Soldner, conditional upon the terms and conditions set forth below, the following described real estate property situated in the County of Pitkin, State of Colorado (the “Property”), to wit: 30.5City of Aspen/Soldner***/Bar/X Ranch LLC Agreement 3 Legal description to be determined and attached as provided in paragraph 21 below. Depicted as Parcel E on Exhibit A appended hereto. 2f Soldners will quit claim to Bar/X, conditional upon the terms and conditions set forth below, the Property located to the East of the historic fence line that has existed between the Soldner Property and the Bar/X Property prior to the recent reconstruction of that fence. 3 Purchase Price The total consideration for the conveyances of the properties described herein shall be the terms and conditions of this agreement. 4 Dates and Deadlines Item No.Reference Event Date/Deadline A 5f City Council Approving Resolution Deadline March 23, 2004 B 7 Closing Date April 23, 2004 C 9 Possession Deadline Date April 23, 2004 5 Conditions The transactions contemplated herein are specifically contingent upon the following: 5a Bar/X shall convey to City a permanent thirty-seven (37) foot wide utility easement the “Utility Easement”) upon which the City shall locate underground utilities. The easement shall be immediately adjacent to and to the East of the finally adjusted boundary between the Soldner property and the Bar/X Ranch property. The general location of this easement is depicted as parcel F on the appended Exhibit A. 5b Bar/X shall grant to City a temporary mobilization, construction, staging and storage license (the “Licensed Area”) for a period of twenty four months commencing on the date that the contractor for utility work commences construction. The Licensed Area shall consist of a 60 foot wide area which includes the Utility Easement referenced at subsection 5.a. above and extending to the east an additional 23 feet; and, a separate area (the “Additional Licensed Area”) of no greater than 15,000 square feet the general location of which is shown and depicted on Exhibit B appended hereto; provided, however, that the area is accessible from the Licensed Area. Upon completion of the utility work and the construction of the westerly road, City shall re-vegetate and re-plant the Utility Easement, the Licensed Area and the Additional Licensed Area to its original condition, to the reasonable satisfaction of the Soldners and the Zolines. The general location of the Licensed Area shall be depicted as parcel G on the appended revised Exhibit A. 5c City shall take reasonable steps to mitigate the environmental and aesthetic disturbance caused by the construction of the aforementioned westerly access road and to mitigate the impacts of the use of the road to the Soldner Property. Said mitigation shall include replanting sage and other landscaping, berms where reasonable and other reasonable vision obstructing and sound dampening methods in the design and construction of the access road, and installation of irrigation systems adequate to insure the viability of all plantings installed by the City pursuant to this Agreement. All mitigation 30.6 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission 4 shall be designed and installed to the reasonable satisfaction of the Soldners. All disputes and differences regarding the replanting of sage, other landscaping mitigation measures, vision obstructing and sound dampening methods referenced above shall be settled by arbitration. At the time a dispute or difference between the parties is identified, the parties to the dispute may agree upon a method to submit the dispute or difference to arbitration. If the parties to the dispute or difference are unable to agree upon a method to arbitrate the dispute or difference, the parties shall proceed in accordance with the Colorado Uniform Arbitration Act, §13-22-201, C.R.S. et seq. 5d City shall cause to be prepared and filed a corrected Annexation Map for the Burlingame Ranch which may be in error due to the changes in property ownership described herein. 5e Bar/X and City shall enter into a Fourth Amended and Restated Pre-Annexation Agreement that incorporates the changes agreed to by this Agreement. Said amendments shall include the realignment of the access road, the temporary and permanent utility easements and licenses described herein, and the following commitments made by Bar/X to accommodate the westerly alignment of the access road: 5e.1 To compensate for the additional engineering and staff costs associated with the redesign of the access road, Bar/X shall make, from the closing on the initial sale of each of the 12 free market lots on the Bar/X Ranch, a payment of $25,000.00 to the City; a total of $300,000.00. 5e.2 To compensate for the loss of the sage brush to accommodate the westerly alignment of the access road, and to compensate for the impacts to the Soldner Property, Bar/X shall make from the closing on the initial sale of each of the 12 free market lots on the Bar/X Ranch a payment of $16,666.67 to the City to be used by the City, in its sole discretion, for open space or sage brush preservation and shall make from the closing on the initial sale of each of the 12 free market lots on the Bar/X Ranch a payment of $8,333.33 to a non-profit entity of Soldner’s choice charged with the maintenance and operation of the Soldner Property as a cultural center, toward an endowment for the maintenance and operation of the Soldner Property as such cultural center. In addition, Bar/X shall require that its successors in interest in each free market lot, for a period of 50 years, make from any subsequent sale of a free market lot in the Bar/X Ranch a payment of $6,666.67 to the City to be used by the City, in its sole discretion, for open space or sage brush preservation, and a payment of $3,333.33 to the non-profit entity of Soldner’s choice charged with the maintenance and operation of the Soldner Property described above, toward the referenced endowment. 5e.3 The payments required under subparagraphs 5e.1 and 5e.2 above shall not be payable upon any bulk sale of the 12 free market lots. Bulk sale as used herein shall mean the sale of all of the 12 free market lots in one transaction. Bar/X shall incorporate the commitments set forth at subsections i and ii, above, in covenants burdening the titles of successors in interest of any free market lots sold in the free market component of the Bar/X Ranch. 5e.4 Bar/X shall construct at its cost a temporary ditch to the east of the existing ditch along the Soldner boundary in order that the area in which utilities and temporary access road are to be installed is not irrigated prior to their construction. After the City has re-vegetated and replanted the Utility Easement, the Licensed Area and the Additional Licensed Area, Bar/X shall relocate its irrigation ditch to its current and historic location, on and adjacent to the Soldner Property for purposes of transporting the Water Rights and otherwise irrigating the Bar/X Ranch. In addition, in the event the Soldner wells stop producing water of a quantity and quality necessary for the Soldners’ domestic and irrigation water needs during the period of construction; the City will fill the Soldners water cistern on an as needed basis, at no cost to the Soldners. 30.7City of Aspen/Soldner***/Bar/X Ranch LLC Agreement 5 5f This Agreement is specifically conditioned upon the approval of the Aspen City Council evidenced by a duly approved Resolution of the Aspen City Council. 5g Bar/X and the City will insure that the Conservation Easement for the irrigated pasture immediately to the East of the Soldner Property will require that the irrigated pasture, for at least 125 yards to the East of the Soldner Property, shall remain undeveloped, in agricultural use, and specifically prohibiting the development of any trails, roads, (other than ranch type roads used to serve agricultural uses) buildings, barns stalls, arenas or the like. Nothing herein shall restrict the construction, maintenance, or repair of fences necessary for agricultural uses. 5h Neither the City nor Bar/X shall take any action or cause Stage Road to change its current configuration or size, including an increase in width of the driving surface in excess of 22 feet or relocation without Soldners’ reasonable consent, and that Stage Road will not be used by the City or Bar/X for any additional traffic, except those free market parcels of the Bar/X development that are currently anticipated to be accessed by Stage Road in the Agreement with the City or by any other third party with rights to the use of Stage Road. If, without cost to Bar/X, Bar/X is provided with all necessary easements or other rights to do so, the portion of Stage Road between the common boundary line of the Soldner Property and Bar/X and its intersection with the portion of said road that crosses onto the Maroon Creek Club near its driving range, will be maintained by Bar/X, or its assignee or designee, at their expense, pursuant to similar standards as applied to the free market component of the Bar/X. Bar/X recognizes that the Soldners domestic water supply comes from wells on the Soldner Property and will do nothing with respect to the maintenance of Stage Road that will in any way affect the quality of their domestic water supply. 5i If Bar/X develops a Cultural Use Area as contemplated on its Property, Bar/X and the City agree that all vehicular access to the Cultural Use Area shall be along the Western access road; there shall be no vehicular access along Stage Road to the Cultural Use Area. Notwithstanding any language to the contrary, this section shall not be interpreted or construed to require the City to approve the Cultural Use Area, require the City to pay for the cost of any access road to the Cultural Use Area from the westerly access road, or prevent the City from conditioning any approval of the Cultural Use Area upon appropriate mitigation measures, if any. 5j City will allow the Soldner Property two water hookups at any time, up to a maximum of 8 ECU’s, 4 ECU’s per hookup, and the City will waive any utility investment charges associated with such hookups at the time of such hookups. Soldner will be responsible to pay all costs associated with hooking up to and connecting water service to the Soldner Property, except for such waived utility investment charges. In the event the Soldner Property hooks up to City water, it shall be allowed to retain its wells and associated water rights, including the Water Rights, for irrigation purposes, through a standard City of Aspen perpetual Raw Water Use Agreement with the City, which shall not cost the Soldner Property more than $1.00 per year and which shall not be unilaterally terminable by the City. The standard City of Aspen Raw Water Use Agreement shall include a provision that the Soldners shall be subject to all City of Aspen water use regulations of general applicability. 30.8 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission 6 5k The access to the Soldner Property currently is through the Maroon Creek Club. Notwithstanding the development of the new “Harmony Lane” and Stage Roads, neither the City nor Bar/X will do anything to impair the Soldners’ right of access through the Maroon Creek Property. 6 Covenants, Representations and Warranties of the Parties The parties hereto hereby covenant, represent and warrant to each other the following, all of which shall be true, accurate and complete as of the date hereof and shall survive the closing: 6a Status and Authority Each party warrants that is has the right, legal capacity and authority to enter into and perform its obligations under this Agreement, and the documents to be executed and delivered by such party pursuant thereto. 6b No Liabilities Prior to or at the time of Closing each party hereto shall pay, or otherwise secure the release of, every debt, account payable, liability or obligation of any nature whatsoever, contingent or otherwise, that is, or could become, a lien or other encumbrance against the properties to be conveyed by such party, and none of the parties hereto shall engage in any action with respect to the properties to be conveyed between the date of execution of this Agreement and the closing date that could give rise to a lien or claim against the properties to be conveyed. 6c Litigation To the best of each party’s knowledge, no action, suit or proceeding is pending or, threatened against the properties to be conveyed by such party or affecting such party’s interest in, management of, or other activities with respect to, the properties to be conveyed by such party. Each party hereto represents to the other parties that it is not in default of any order of any court, arbitrator or governmental body respecting such party’s properties. 6d No Conflict Each party represents that its execution and delivery of this Agreement and the documents required hereunder, and the consummation of the transactions contemplated herein, will not: (1) conflict with or be in contravention of any provision of any law, order, rule or regulation applicable to the representing party or the properties to be conveyed by such party; (2) result in the breach of any of the terms or provisions of, or constitute a default under, any agreement or other instrument to which such party is a party, or by which it or any portion of the properties to be conveyed by it may be bound or affected; (3) permit it to terminate any such agreement or instrument or to accelerate the maturity of any indebtedness or other obligation of such party; or (4) result in any lien, charge or encumbrance of any nature on the properties to be conveyed by such party other than as permitted by this Agreement. 6e Use of Properties to be Conveyed Pending Closing Between the date of this Agreement and the closing date, each party hereto: (i) Shall maintain its respective properties to be conveyed in their current condition, normal wear and tear excepted; 30.9City of Aspen/Soldner***/Bar/X Ranch LLC Agreement 7 (ii) Shall not permit its respective properties to be conveyed to be used or operated in any manner that would be in violation of any local, state or federal law or regulation. 6f No Other Contract Other than agreements referred to herein, each party represents that it is not a party to any other contract or agreements, oral or written, which affect the properties to be conveyed by such party, which will survive the closing. 7 Closing The parties hereto agree that closing shall be scheduled no later than Closing Date (§4B), provided, however, that prior to the Closing Date the parties may mutually agree to an earlier date. The hour and location of Closing shall be mutually agreed to by the parties. 8 Delivery of Title and Easement Subject to compliance with the other terms and provisions hereof, the parties hereto shall execute and deliver quit claim deeds at Closing conveying title to the properties as contemplated herein to the appropriate parties and free and clear of all liens and encumbrances except those disclosed. 9 Possession Possession of the properties to be conveyed shall be delivered to the appropriate parties the closing date. 10 Not Assignable This Agreement shall not be assignable by any of the parties hereto without the other parties’ prior written consent. 11 Survival of Covenants, Representations and Warranties The covenants, representations, warranties and indemnities made by the parties to this Agreement, and the obligations and agreements to be performed or complied with by the respective parties hereunder on or before the closing date, shall survive the closing. 12 Entire Agreement Except for other agreements referred to herein, this Agreement constitutes the entire agreement between the parties hereto, and supersedes all prior and contemporaneous agreements, representations and understandings of the parties regarding the subject matter of this Agreement. No supplement, modification or amendment of the Agreement shall be binding unless executed in writing by the parties hereto. 13 Counterparts This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 14 Binding Effect This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successor and assigns. 15 Recommendation of Legal Counsel 30.10 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission 8 By signing this document, the parties hereto acknowledge the advisability of obtaining the advice of independent legal regarding examination of title documents and the terms of this Agreement. 16 Governing Law This Agreement shall be governed by and be construed in accordance with the laws of the State of Colorado and the parties hereto hereby consent to the exclusive jurisdiction of the Colorado state courts in the event of any controversy or suit arising hereunder. 17 Severability If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 18 Termination In the event this Agreement is terminated for any reason, pursuant to the terms hereof, all money payments, with any accrued interest, and things of value paid hereunder shall be returned forthwith to the appropriate party. 19 Notices All notices and other communications tendered in connection with this Contract shall be in writing, and shall be deemed to have been duly given when delivered in person or by telefax, or on the fourth day after mailing, if mailed registered or certified mail, postage prepaid and properly addressed as follows: To City: City Attorney 130 South Galena Street Aspen, Colorado 81611 To Soldner: Frederick F. Peirce, Esq. 600 East Hopkins Aspen, Colorado 81611 To Bar/X: Herb Klein, Esq. 201 North Mill St., Suite 203 Aspen, Colorado 81611 20 Facsimile Transmissions It is mutually agreed upon by all the parties to this Agreement that, if necessary, facsimile communication shall be an acceptable and binding form of communication. An original shall be provided to the other party(ies) at closing with original signatures. 21 Legal and Water Rights Descriptions and Exhibit A The parties hereto acknowledge that upon initial execution of this Agreement, the legal descriptions of the parcels referenced in Section 2, above and the description of water rights also referred to therein, were not available. The parties hereto further acknowledge that upon initial execution of this Agreement, Exhibit A, referenced throughout this Agreement, was not a final document, but reasonably depict the location 30.11City of Aspen/Soldner***/Bar/X Ranch LLC Agreement 9 and size of the various parcels shown on the exhibit. The parties hereto agree to engage Dean Gordon of Schmeuser, Gordon, Meyer, to prepare final legal descriptions of the various parcels shown on Exhibit A, and to prepare a final version of Exhibit A that accurately reflects the parties agreement as set forth herein. Said legal descriptions and Exhibit A shall be prepared and inserted into this Agreement prior to the Closing Date and the parties shall re-execute this Agreement evidencing their approval of said legal descriptions and revised Exhibit A. City of Aspen: By: _______________________________ _______________________ City Manager Date Paul E. and Virginia I. Soldner Family Limited Partnership, LLLP: By: ____________________________________ Title: ____________________________________ Bar/X Ranch LLC: By: ___________________________________ ________________________ Date Title: ___________________________________ 30.12 Bar Slash X Ranch LLC - Annexation and Stage Road PUD/Subdivision: Final Submission 10 The undersigned parties to this Agreement have reviewed the legal descriptions and revised exhibit as prepared by Dean Gordon and agree that the legal descriptions shall be inserted in Section 2, above, and that the revised Exhibit A shall replace the draft exhibit appended to the Agreement upon initial execution. City of Aspen: By: _______________________________ _______________________ City Manager Date Paul E. and Virginia I. Soldner Family Limited Partnership, LLLP: By: ____________________________________ Title: ____________________________________ Bar/X Ranch LLC: By: ___________________________________ ________________________ Date Title: ___________________________________ JPW- saved: 3/30/2004-3975-G:\john\word\agr\soldner-bar-x-3-30-04.doc SOLDNE-threeptyagmt-hk2r(4-07-04).wpd