HomeMy WebLinkAboutresolution.council.082-03 RESOLUTION NO. 82
(SERIES OF 2003)
A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO. APPROVING A
CERTAIN CONTRACT TO BUY AND SELL REAL ESTATE AND AGREEMENT FOR
THE SALE OF A RESTAURANT AND COUNTERPROPOSAL FOR A RESTAURANT
AND PROPERTY COMMONLY tGNOWN AS THE MOTHER LODE RESTALrRAN'T.
WHEREAS, there has been submitted ro the City Council a Contract to Buy and Sell
Real Estate and Agreemem for Sale of a Restaurant and Counterproposal, copies of which are
appended hereto as Exhibits A and B respectively.
NOW'. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO.
Section One
That the City Council of the City of Aspen hereby approves that certain Contract to Buy
and Sell Real Estate and Agreemcmt for Sale of a Restaurant and Coumerproposal, regarding the
purchase of land and a restaurant commonly known as the Mother Lode, copies of which are
annexed hereto and incorporated herein, and does hereby author/ze the City Manager and Mayor
;o execu[e said documents in substantially the form as appended hereto on behalf of the City of
Aspen.
2003.
I, Kathryn Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and
accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, ar a
meeting held September 8, 2003.
Kathryn S. Ko~, ~i~ Clerk
JPW-9/9/2003-G:\john~wordlresos\mothcrlode.doc ~
CONTRACT TO BIfF/kiND SELL REAL ESTATE
AND AGREEMENT FOR SALE OF RESTALrR-ANT
TI-LIS CONTtLACT A_ND AGREEFdENT, made and enr~ed on this
~-~z~.4 ,2003, by and between the City of Aspen, ' ("Purchaser"), a Colorado
horoJ ~ule municipa~ corporation, and Whitmer-Ross, Ltd., a Colorado corporation and Howard
Ross (collectively "Seller").
RECITALS
The parties recite and declare:
A. Seller now owns certain real property in the City of Aspen (the "Parcel") and owns and
operates a restaurant business upon the parcel known or designated as the "Mother Lode"
Restaurant .the "Restaurant"); and
B. Seller desires ro sell and Purchaser desires to buy the Parcel and restaurant for the price
and on the terms and conditions set forth below.
In consideration of the mutual covenants and prormses of the parties, seller and Purchaser
covenant and agree:
1. THE PARCEL. Purchaser agrees ro buy and the Seller a~ees to sell, on the terms
and conditions set forth below, the following described real property situated' in the County of
Pitkin, State of Colorado,
Lots N and O. Block 8I, City and Townsite of Aspen, Pitldn County, Colorado, with a
physica/address of 314 East Ffyman Avenue.
2. 7HE RESTAUtL'kNT.
a. The Restaurant Business. Purchaser agrees To .buy and Seller agees to
sell, on the terms and conditions set forth below, the restaurant business located at 314 EUFIyman
Ave. Aspen. Colorado, 81611, including the goodwii1 of the business, the stock-in-trade,
merchandise, furniture, fixtures, equipmem, and all other asse[s used or relating to the business,
situated on the premises, and specifically set forth in the attached schedule A (the Assets), which
~s incorporated by reference. This agreement also includes the trade name or business name
(specificalty the "Mother Lode" Restaurant), licenses, permits, insurance policies, and all
contracts relating to the business sold. As parr 0fthe conveyance of the Resrauran[, Seller agrees
To assign to Purchaser all of its rig.hr, title, and interest to the tradename/trademark "Mother Lode
Restaurant" and all derivatives, variations, and abbreviations thereof.
b. The LicluorLicense. Seller shali transfer to Purchaser the restaurant
li quor license issued by the City 6f Aspen Liquor Licensing Authority for the Restaurant located
on the Parcel. in accordance with the rules and re~lations of the Colorado State Liquor
Licensing Authofi~. Seller shall execute all necessary papers and documents required to
accomplish the transfer of the restaurant license.
c. A~t Work. Art work cun'¢ntly on the property and referenced m the
a~ached Exhibit "B', shall remain the property of Seller, and be excluded from this Csntract and
Agreement. Seller shall replace with other eomparabI~ art work at the request of Purchaser,
.~. PURCHASE :?R/CB A~ND TBPaMS. The total purchase price for the Parcel and
Restaurant shall be THREE MILLION DOLLARS ($3,2~0,000.90). The purchase price for
the Parcel shall be payable in U.S. dollars in cash or certified funds as follows:
a. Earnest Money. $5,000.00 in the form of a check, as eames¢ money
deposit and part payment of the purchase price, payable to and held by Pitkin County Title in its
n-ust account on behalf of Purchaser and Seller. Ali earnest money shall be placed in an
bearing account with all interest accruing To the Purchaser. Said sum is to be delivered to
closing agent au or before closing. In the event that the contingencies set forth a: Section 4 below
are not satisfied, the earnest money shal] forthwith be returned ¢o Purchaser together with any.
interest earned.
b. Cash at Closing. $745,000.00,' plus closing costs, re be pa~d
Purchaser at closing in ~nds that comply with all applicable Colorado laws, which include
e[ectrorfic transfer 5.rods, certified check, and cast:dot's check (Good Funds).
c. Promissory Note. Purchaser shall execute a promissory note in favor(
of Seller in the amount of $2,500,000.00 secured by a first priority/security interest on the Parcel
and restaurant. The promissory note shall be interest only monthly on the basis of 5% per annum
for ten '(10) years. The promissory note may be prepaid m any amount at any time without
penalty. If the capital gain tax rate increases, then Seller shall have the ability to trigger and~
require pre-payment from the Purchaser of the outstanding pnnmpat.
d. Allocati~n of Price. The allocation of the purchase price between the
Restaurant,. the Parcel, the Assets. mhd good will shall be made by'Seller
Bill of Sale. SelIei' shall deliver an executed bill of sale for the business,
trade fixtures, good will. and liquor ii.cerise transfer papers and documents to Pitkin County Title,
refen:ed to as escrow, at Closing with full warrants of title that the same are free and clear ~f al~
iiens and encumbrances.
f. . Restaurant ~ventory. In addition to the Purchase Price, Purchaser shall
pay by check or good funds at Closing, the Restaurant Inventory, that on September I, 2003,
mcluded the following: Food $8,000; Liquor $14,000; and Wine ~;25,000. An Inventory shall be
currem as of the Closing Date and the value of the Restaurant Inventory shall be calculated at
currem invoice price to determine the final payment amount.
4 CONThNGENC~S. The transactions contemplated herein are specifically
contingent upon the following:
a. The formal approval of the Contract and Ageemenr terms set forth herein
by the City of Aspen City CouP-il evidenced by a res~ution authorizing the Contract and
Agreement. Purchaser shall deliver to Seller a resolution of the City of Aspen City Council
authorizing the execution of this Contract within tMrty (30) days following the execution of this
Contract.
b. The ap__pro, val by the voters of the City of Aspen of a ballot question
seeking authorization to use Wheeler Opera House Real Estate Transfer Taxes for the purchase
price of the Parcel and Restaurant. Purchaser shall seek said authorization at the November.2003
Special Election, (The '"Election Date"). If the approval shall not be obtained this Contract and
Ageemen~ shalI be nulI and void and of no further force and effect, Purchaser's eames~ money
returned and each par~y shall thereupon be released fi.om further obligation hereunder. If the
ballot proposal shaII be approved, Closing shal] occur foray-five [45) days after the Election Date.
c. Seller shall deliver to Purchaser at Closing its b~ance sheet amd stazemem
of. operations for its fiscal years ending 2001, 2002, and 2003. Seller shall warrant that such
financial statements are correct and complete, have been prepared m accordance w~th sound and
generally accepted accounting prmciples and practices consistently applied throughout the
periods indicated, and fairly present the performance of the Restaurant for the periods covered
and the results of its operations for such periods.
d. Seller shall have performed and satisfied ali covenants, ageemen~s, and
conditions required herein to be performed and satisfied by it prior to or at the Closing.
e. Each par~y shall cooperate with the other to effectuate an I.R.C. Section
1031 tax deferred exchange, including consemmg :o and acknowledging assignments of this
Contract to a qualified intermediary, so long as cooperation is not detrimental of the interests of
the other party.
f. At Closing, The City of Aspen and Howard Ross shall execute ~-Release
of Lease with Howard Ross and The Mother Load Restaurant releasing the pames fi.om the
existing lease.
5 NO COMPETITION. For a period of five (5) years fi.om the Closing hereof,
Seller agees that it will not engage m ~u~ant btfs22-d-s~directly or indirectly as an
owner or consultant to a corporation or member of a partnership or other entity engaged in such
business) within Pitkin County, State of Colorado. Seller acknowledges that the remedy at law
for any breach of this.covenant will be inadequate and that purchaser shall be entitled to
injunctive relief. It is the agreement of the parties that the maximum protection available under
the taw within the foregoing limits shall be provided to Purchaser in order to afford protection for
the interests being acquired in accordance with this Agreement and Contra~r. If the restrictions
hereby imposed are held by any cour~ ~o be un.reasonably broad in time, territory, or scope, then
this paragraph shaI1 be considered to impose only such restrictions as are nor uuzeasonable as ro
time, rendrory, or scope, as thc case may be.
6. TP,2kN'StTiON Ax,aD MANAGEMENT ASSISTANCE. Dining the period
commencing on the date hereof and endfng on the Closing Date. Seller shall use its best efforts to
continue operating the "Mother Lode" Restaurant in the same manner as it has before the date
hereof. During a Transition Period ro include the period of time commencing on the date hereof
and ending thirty (30) days following Closing hereof, Seller covenants to Purchaser that it will
use irs bests efforts to assist in the orderly transfer of its business from Seller ro Purchaser and to
this end shall:
a. Introduce Purchaser to Seller's existing suppliers in person, by telephone, or letter, .
or in any other appropriate mariner, which shall be within the discretion of Purchaser.
b. Introduce Purchaser ro Seller's axis-ting employees ~n person, by telephone or
letter, or in any other appropriate mariner, which shall be within the discretion of
Purchaser.
c. Consult with Purchaser as reasonably necessary on temhnical issues.
d. Do all other reasonable acts at the request of Purchaser which will effectuate the
intents and purposes of this Contract and A~eemem.
Ali requests for consultation that take place after the Transition Period shall be at an hourly fee
$50/hour.
Nothing in this paragraph shall be cons~ued to relieve Seller ~f any expenses, costa or
obligations which arise with respect to the business during 'the Transition Period; or To entitle
Seller To any income~ earnings, or profits wi~ respect To the business during the Transi~on.
Period.
T' EVIDENCE OF TITLE. Seller shall furnish to Purchaser, at SelI~r's sole cost and
expense, a current ALTA commitment for owner's title insurance on the Parhet m a[~-amounr --
equal to the purchase pr/ce, from a title company acceptable ro Purchaser, with ali standard
exceptions concemmg liens for labor, sermce, or materials not of record, and in'an amount equal
to the purchase price, together with any copies of ail instruments listed in the schedule of
exceptions of said title insurance cormmirmenr on or before rwanrpone (~1) days following the
Election Date The title insurance commitment, together with any copies of insrmmems
rum/shed pursuant to tiffs Para,apb, shall constitute the Title Documenta
8. TITLE.
a. Title Review. Purchaser shall have the fight ro inspect the Title Docmments.
Written notice by Purchaser of unmerchantability of title or o£ any other ansatisfactory title
condition shown by the Title Documents shall be si~maed by or on behalf of the Purchaser and
given to Seller on or within fourteen (14) calendar days after receipt by Purchaser of auy Title
Documents or endorsements adding new exceptions in the title commitment together with a copy
of Title Documents adding new exceptions ro title. If Seller does nor receive Purchaser's notice
by the date(s) specified above, Purchaser accepts the condition of the ritle as disclosed by the
Title Documents as satisfactory
b, Matters Not Shown by the Public Records. Seller shall deliver to Purchaser, on
or before the date set for providing Title Documents, ume copies of ail leases(s) and survey[s) in
Seller's possession pertaining fo the Parcel and shat] disclose to Purchaser all easements, liens
and other title matters nor shown by the.public records of which Seller has actual knowledge.
Purchaser shall have the right to inspect the Parcel to determine if any third party has any rigjat in
the Parcel not shown by the public records (such as un.recorded easements, ur~ecorded Iease. or
boundary line disdrepancy) Written notice of any unsatisfactory condition(s) disclosed by Seller
or revealed by such inspection shall be si~ed by or on behalf of Purchaser and given to Seller on
or w/thin thirty (30) calendar days after receipt by Purchaser of the Title Documents. tf Seller
does not receive Purchaser's notice by said date, Purchaser accepts title subject ro such rights, if
any, of third parties of which Purchaser has actual knowledge.
c. Special Taxin~ Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO
GENERAL OBLIGATION INDEB%EDNESS THAT iS PAID BY REVENUES PRODUCED FROM
ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY
OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND
EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE
CIRCUMSTANCES ~ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE
SUCH INDEBTEDNESS WIYTHJOUT SUCH AN INCREASE IN MILL LEVIES. PURCHASER SHOULD
INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHRORIZED GENERAL
OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS EXISTING M1LL LEVIES OF SUCH DISTRICTS
SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR INCREASE IN SUCH MILL LEV1ES.
tn the event the Parcel is located within a special taxing district and Purchaser desires to
terminate this contract as a result, if written notice is given ro Seller on or before the date set
for-th in subsection 8(b), this contract shall then terminate. If Seller does not receive Purchaser's
notice by the date specified above, Purchaser accepts the affect of the Parcel's inclusion in such
taxing district(s) and waives the right ro so terminate.
d) P,J~ht ro Cure. If Seller receives notice of unmerchantability of title or any other
unsatisfactory title condition(s) as provided in subseCUon (a) or (b) above, Seller shall use
r~asonable effort ro correct the unsatisfactory ride condition(s) prior
Seller fails ro correct said unsatisfactory title condition(s) on or before the date of Closing, this
contract shall then terminate, provided, however, Purchaser may, by written notice received by
Seller, on or before Closing, waive objection ro said unsatisfactory tide condition(s). If Purchaser
waives objecuons to title defects, the sale of the real property shall close as scheduled herein.
9. COVENANTS. KEPP.~SENTATIONS A.BYD WA.RRANTI[ES OF SELL]~R.
Seller hereby covenants, represents and warrants ro the Purchaser the following, ali of which
shall be true, accurate and complete as of the date hereof and shall survive the Closing:
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Status and Authority. Seller has the fight, legal capacity and authority ro
enter into and perform irs obligations under this Contract and A~eemenr. and the documents ro
be executed and delivered p~suanr thereto. There is no lease burdening the Parcel or R. estaurant
that shall survive closing. Seller is the unconditional owner of ~he restaurant business, frs
eqmpmenr and fixtures, and the above referenced resrauran~ liquor license. The above are nor
subject ro any encumbrance, there are no proceedmgs pending involving the above subject manet
of the Contract and Agreement, and there are presently no pending citations by the Colorado
State Liquor Licensing Authority or the city of Aspen Liquor Licensing Authority against Seller's
liquor license. Seller hereby represents and warrants that k has been using the name "Mother
Lode resraurang' as its corporate name. but has nor otherwise registered such name federal]y,
with the State of Colorado or Pitkin County.
b. No' Liabilities. Prior [o or a~ the nme of closing, Seller shall pay, or
otherwise secure the release of, every debt, account payable, liability or obligations or any narore
whatsoever, corem§our or otherwise, that is, or could become, a.lien :r other encumbrance
against the Parcel, and Salier shall nor engage in any action with respect m the Parcel between
the date of execution of this Contract and the closmg date that could give rise ~o a lien or claim
against the Parcel. Seller has now, and will have ar the closing dale, filed ali United Sates.
Colorado, and other tax returns required by law ro be filed: and has paid or will have paid. or
made provision for the paymen~ of, all rexes which have or may become due pursuam ro such
returns Seller is not aware of any additional assessments of tax pending ofthreatened~ except for
rexes which become due upon the required filing of currenl tax returns.
c. Liti~afi.on No action, suit or proceeding is pending or, ~o the best of
Seller's knowledge, t~eatened against the Parcel or Seller or affecting Seller's interest in.
management of, or other activities with respect to, the Parcel. Seller is not in default of any order
of any court, arbitrator or govermmentaI body respecting the subject Parcel.
d. Environmental Matters. To the best of the Seller's actual kno~vledge,
without duty of enquiry, the Parcel, including related soils, water and ~oundwater, is not
contaminated by, and has never been used for, the generation, transportation, [rearmenr, storage
or disposal of any hazardous substance or envirornnentaI pollutant(s) except those which may
have been used by Seller during its occupancy of the Parcel.
e. No Notice of Violation. Selter has no knowledge of and has received no
notice of any pollution, health, safety, or environmental violation with respect to the Parcel or
any portion thereof which has not been cured.
No Conflict. The execution and delivery of this Contract and the
c~ocumenrs required hereunder, and the consummation of the transactions contemplated herein,
will nor: (1) conflicl with or be in contravention of any provision of any law, order, mle or
regulation applicable ro Seller or the Parcel; (2) result in the breach of any of the terms or
provisions of, or constitute a default under, any a~eemenr or other insnmmenr ro wh/:h.Seller is
a parry, or by which it or any portion of the ParCel may be bound or affected; (3) permit any parry
~o terminate any such a~eement or instrument or to accelerate the maturity of any indebtedness
or other obhgation of the Seller; or rd result in any lien, charge or encumbrance of any nature on
the Parcel other than as permitted by this Contract.
True and Correct lnfonnation ro the best of Seller's knowledge, no
docmm_ent, certificate or written srar~menr furnished ro the Purchaser and/ts attorney by Seller in
connection with tkis transaction contains or will contain any untrue srarmnenr of a material fact
or om~rs or will omit to state any material fact necessary in order [o make the statements
contained therein nor misleading. Additionally, Seller has disclosed ali encumbrances and/or
defects in title nor shown by the public records and al/title documents of which Seller has actual
knowledge.
h. Use of Proper~v Pendin¢ Closin¢. Between the date of this Contract and
the closing date. Seller:
(i) Shall mainta/n the Parcei in its current condition, non-nM wear and
rear excepted;
(ii) Shall not permit the Parcel to be used or operated in any manner
that would be in violation of any local, stare or federal !aw or regalatmn;
and
(iii) Shall maintain the regular course of business until close of escrow,
and shall file ail sraremen*s and accounts required under any feder~I; state,
or local statute or ordinance respecting wages, social securi~, withholding
of income taxes, mnemploymen~ taxes, sales taxes, and all other such
obligations.
i. No Other Contract. There are no other contracts or agreements, oral or
written, whioh affect the Parcel or Restaurant, which wilt survive the closing, except as disclosed
in the title insurance policy as provided the Purchaser pursuant to Paragraph 5 above.
10. ]INSPECTION. Purchaser shall have the right to have inspecti>n(s) of the
physical conditions of the Proper~y and the Assets of the P,.estaurant at Purchaser's expose. If the
physical condition of the Property or Restaurant Assets is unsatisfactory in purchaser's subj ective
discretion, Purchaser shall, on or before I5 days before Closing (Inspection Objection
Deadline):
a. notify Seller in writing that this Contract and Agreement is terminated; or
b provide Seller with a written description of any unsatisfactory physical
condition which Purchaser requires Seller to correct (Notice to Correct).
If written notice is nor received by Setler on or before Inspection Objection Deadline,
the physical condition of the Property and Restaurant Assets shall be deemed to be
satisfactory ro Purchaser.
If a Notice to Con:ecI is received by Seller and if Purchaser and Seller have not a=o-reed in
writing to a settlement thereof on or before five (5) flays before Closing (Resolution
Deadline), tlns Contract and A~eement shall termmam one calendar day following the -
Resolution Deadline, unless before such deadline Seller receives Purchaser's written
withdrawaI of the Notice to Correct.
l 1. CLOSh~WG. The date of closing shall be the date for delivery of deed as provided
herein. The part/es hereto agee that closing shall be scheduled no later than forty-five (45) days
following Election Date, provided the result of the election is favorable. The actual location,
date, and time of Closing shall be established by the parries as soon after the Election Date as
reasonably possible. The parties may a~ee in writing ro postpone or advance the date o£
consummation of this Contract and Ageemenr and such postponed or advanced date she/1 be
Jesignated the Closing.
12. DELIVBR¥ OF TITLE AND EASEMENT. Subject to tender or payment on
closing as required herein and compliance with the other terms and provisions hereof, geller shall
execute and deliver a good and sufficient general warranty deed at closing convey/ng fee
simple title to the Parcel to the Purchaser gnd conveying the Parcel free and clear of all taxes
except for pro-rata share of taxes for the year of closing; and free and clear of all liens for special
xmprovements installed as of the date of closing, whether assessed or not; and free and cleaJ' of
all liens and encumbrances except those disclosed by the title corrmmrxnent which do not, in the
Purchaser's reasonable discretion, render title unmerchantabte. Within a reasonable period of
time not to exceed ninety (90) days, Seller a~ees to pay full costs and premiums for, and deliver
ro the Purchaser, fully executed title insurance policies consistent with the title insurance
commiumem referenced in Para~aph 4.
13. ALLOCATION OF TAXES. Seller a~ees [o pay alt sales and use taxes arising
our of a transfer of Assets pursuant to this Contract and Agreement, and Seller a~ees to pay its
portion of all personal ad valorem personal prqperry taxes with respect to the Assets. which shall
be prorated as of Closing. General Real Estate taxes for the !fear of Closing shall be prorated to
Closing Date based on the most recent mill levy and most recent assessment. No real estate
transfer rexes shall be due as the Purchaser is exempt pursuant ro Section 23.48.040(a) of the
Aspen Municipal Code.
t4. CLOS/NG COSTS, DOCUMENTS A~ND SERVICES.
a. The parties hereto.shall pay their respective closing costs at closing, except
as otherwise provided herein.
b. The parties hereto shall sign and complete ail customary or required
documents ar or before closing.
c. ]Fees for rea] esra[e closing and settlement services shall nor exceed
$500.00 and shall be shared equally at closing by the parties hereto.
d. Seller, ar its solo expense, shall deliver re the Purchaser a currem
certificate of taxes due covering the Parcel and a statement of personal property taxes due, both
prepared by the Pitldn County Treasurer.
e. The Earnest Money and Cash at Closing, less closing costs, shall be paid
over re the Seller at closing,
t 5. POSSESSION. Possession of the Parcel shall be delivered to the Purchaser on the
date of closing and the closing of escrow. If Seller, after closing, fails to deliver possession on
the dare herein specified, Seller shall be subject re eviction and shall be additionally liable for
pay'men! of ~500.00 per day as liquidated damages from the date of agreed possession until
possession is delivered.
15. TrME OF ESSENCE/DEFAULT/KEMEDIES. Time Is of the essence hereof. If
any note or check received or any of the payments due hereunder is nor paid. honored or tendered
when due, or if any other obligation hereunder is not performed within the time frames specified
herein, there shall be the following remedies:
a. ~ THE PUP, CHASER IS IN DEFAULT, then Selleg may elect to treat this
Contract as canceled, in which case all paymems and things of value paid hereunder shall be
forfeited and retained ~n behalf of Seller_ and Seller may recover such damages as may be
proper, or Seller may elect re treat this Contract as being in full force and ef£ecr, whereupon
Seller shall have the right to an action for specific performance or damages, or both.
h. [F SELLER IS IN DEFAULT, the Purchaser may elect ;o treat this
Comracr as terminated, in which case all money paymems and th/ngs of value paid hereunder
shall be returned forthwith to the Purchaser and the Purchaser may recover such damages as may
be proper, or may elect to [rear this Contract as being in full force and effect, whereupon the
Purchaser shall have the ri?gh[ re an action for specific peg'formance or damages.
c. Anything re the contrary herein notwithstanding, in the evem of any
[itiganon arising our of this Contract. the court may award to the prevailing parry its reasonable
costs and expenses, including attorneys and expert witness fees.
17. SURVIVAL OF COVENANTS. REPRESENTATIONS AND WAP, RANTEES.
The covenants, representations, warranties and indemnities made by the parties re this Contract,
and the obligations and a~eements to be performed or complied with by the respective parties
hereunder on or before the closing date, shall survive the closing, but shall terminate and be of no
further force and effect on the third anniversary of the date of closing.
18. ENTIRE AGREEMENT. This Contract constitutes the entire agreement between
the part/es hereto, and supersedes ali prior and comemporaneous agreements, representations and
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understandings of the parties regarding the subjec: manet of this Contract. No supplement,
modification or amendment of the Contract shall be bind/rog unless execmed in writing by the
p~ies hereto.
19. CO~TE~TS. This Con,act may be ex~cuted in ~ne or more
each ofw~ch shall be deemed ~ onginaI, but ail ofw~ch together shall consz~mte one and the
s~e instmmem.
20. B~G EFFECT. 2is Contract shall be binding upon and shah mute to
benefit of the p~ies hereto ~d their respective hints, successor ~d assi~s. ~¢ P~chaser may
m 2s sole discretion, and without the prior consenz of S~ller, ass~ all of ~¢ Purchaser's fight
here~der to. or cause title to ~ Parcel to be t~n ~ ~¢ n~¢ of non-profit no,heels) setect~d
by the Purchaser.
21. ~COM~b~AT!ON OF LEGA& CO~SEL, By si~ng ~s document, the
p~es hereto ac~owledg¢ thc advisabiliV of obtain~g thc advice of independent I~g~
r~g~d[~g examination :f title documents ~d th~ t~s of ~is Contracz.
22. GOVE~'G LAW This Contract shah be governed by and be construed
accord~c¢ with ~ laws of the State of Colorado and the pa~ies hereto hereby cons¢n~ to the
exclusive jurisdiction of the Colorado state co.~s in the ¢wn~ of ~y con=oversy or suk
hczeund~r.
23. SEVE~tTY. If any provision of t~s Con=act is h~ld by a cou~ of
competent jurisdiction ~o be invalid, void or une~orceabl~, th~ remainder of the provisions of
this Contract shalI r~main in ~11 force ~d ~ff¢0~ and shall m no way be affected, impaired
~validat~d.
24 TB~ATION. ~ ~¢ event t~s Con,act is ~inated for any reason,
p~au~t to the ~¢~s hereof, ali money pa~¢n~s, with any accrued ~ercs~, ~d ~ings of value
p~d hereunder shall be returned fo~hwith to the Purchaser.
25. NOTICES. All notices ~d other communications tendered in ~o~ec~on w~
· is Contract shall be in writing, ~d shall be d~emed to have been duty ~ven when delivered
person ~r by telefax, or on ~h¢ rough day after mailing, if marled r~gist~rcd or certified mail,
posmg~ pr~p~d ~d properly addressed as follows:
To Purchaser: Office of the City Manager
City o f Asp en
130 South Galena Street
Aspen, Colorado 81611
With a copy to the City Attorney at the same address.
i0
To Seller: c/o Howard Koss
314 East Flyman Avenue
Aspen. CO 816611
'frith a copy to Oates, K.nezevich & Oardenswartz. P.C.
533~ E. Hopkins Ave.
Aspen, CO 816611
At'tn: Leonard M. Oates, Esq.
266. EAI~_N'EST MONEY DISPUTE. Notwithstanding any termination of this
contract, Purchaser and Seller agree that in the event of any comroversy regarding the earnest
money and things of value held by broker or closing agent, unless mutual closing instructions are
received by ~e holder of the earnest money and things ofvalue, broker or closing agent shall not
be required to take any action but may await any proceeding, or at broker's or closing agent's
option and sole discretion, may interplead ail oarties and deposit any ruoney or things of value
into a court of competent jurisdiction and shall recover court costs and reasonable attorney fees.
27. FACS12VL~LE TRANSMISSIONS. It is mutually a~eed upon by ali the parties to
this Contract that. if necessary, facsimile communication shall be an acceptable and binding form
of communication. An on~nal shall be provided to the other party(ies) ar closing with on~na.1
sig-aamres.
28. ADDITIONAL PROVISIONS.
a) Purchaser and Seller agree and acknowledge that Colorado Revised Statute
Section 39~22-<504.5 provides that in the case of any conveyance of a Colorado real property
interest, the person or parry providing closing and settlement servmes shall be required to'
withhold an amount equal ro 2% of the sales price or the net proceeds resulting from such
conveyance, whichever is less, when the transferor is a non-resident of the State of Colorado.
Seller shall be obligated to either comply with the withholding requirements of CRS 39-22-6604.5
or provide an affidavit in form and content satisfactory to the person or parry closing and
setttemem services certifies that Seller is n~t subject to. the withholding reqmremenrs. _
b) Seller hereby warrants that it is nor subject to withholding as defined under
Internal Revenue Code Section,897 (Foreign Person Transferor) and will execute an affidavit ro
that effect prior To closing.
29. TIME LIMITFORACCEPTANCE. Purchaser's offer as set forth in thhs
insa~uruent is time limited as set forth below. If this proposaI is accepted by Seller in writing and
Purchaser receives notice of such acceptance on or before Monday, September 8, at 4:00 p.m. in
Aspen, this instrument shall become a contract between Seller and Purchaser, subject only to the
terms and conditions set forth herein (including the contingencies listed ar Section 3), and shall
inure to the benefit of the heirs, successors and assigns of such parties.
I1
CITY OF ASPBN:
City N~anager Date
(This section to be completed by Seller)
30 Seller accepts the above proposal this __ day of
2003.
(Seller)
By:
Date
Title:
IPW-09/05/2003 -G:\j ohn\word~agr~'notl~er!oad-9-5-03.doc
12
Counterproposal
Page 2
9. Schedule "A" and Exhibit "B" are attached hereto Exhibit "B" states the
artwork which is to be in the restaurant at Closing. Seller and Purchaser
understand that Seller Ross will remove eight (8) prints currently in the
restaurant and replace them With replacemeht~ before closing, geller Ross
agrees to have the pieces to be removed and the replacements available to be
photographed together with the items on Schedule "A" on September 9.
2003, or thereafter, as requested by Purchaser.
10. A copy of all notices shall be provided to:
Gordon L. Whitmer
PO Box 6621
Snowmass Village, CO 81615
N.B. When this counterproposal form is used. the proposed contract is not to be signed
by the party initiating this counterproposal. This counterproposal must be securely
attached to the proposed contract
SELLERS
GORDON L. WItlTMER AND
HOWARD ROSS PARTNERS
By:
Howartl Ross.
By:._
Howard Ross,
TI-lYE CITY Oil' ASPEN
Stepf:ten I-I~larwick, City Manager
THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES
SHOLrLD CONSULT LEGAL AND TAX OR OTHER COLrNSEL BEFORE SIGNING.
COUNTERPROPOSAL
, September 8 2003
Re: Proposed contract to buy and sell the following described real estate in the
County of Pitkin, Colorado, to wit:
Lots N and O, Block 81, Cie and Townsite of Aspen,
Ifa~own as: 314 East Hyman Avenue Aspen CO 81611
Street Address City State Zig
Da~ed: September 5, 2003, between Whitmer-Ross, Ltd and Howard Ross ("Sellers") and
The City of Aspen ("Buyer").
The undersigned accepts the proposed Contract ~"Contract"), snbject to the fblli)wing
amendments:
1. The Sellers' names are Gordon L. Whitmer and Howard Ross. Partners
("Whitmer-ROss"), a Colorado partnership, as to the Pamel and Ross-Ross,
Ltd. ("Ross-Ross"), a Colorado coq)oration, as to the Restaurant/Assets.
2. The words "deed of trust" are inserted immediately after the words first
priority in the second line of paragraph 3c. of the Contract
· 3. The financial data reqmred for the fiscal year 2003 and paragraph 4c. shall be
delivered by Seller to Buyer as soon as practically p6saible following Closing,
if not available at Closing.
4. Paragraph 4f. is restated in its entirety as follows:
At closing, tbe Pt~rchase and Seller Whitmer-Ross shall execnte ~
mutual Release of Lease between Ross-Ross and the Mother Lo~le
Restaurant releasing the parties fi'om the existing lease or' the
restaurant.
5. In paragraph 3d., the purchase price is allocated
Parcel: $2,975,000
- Restanrant/Assets: $ 275,000
TOTAL $3,250,000
The allocation of the purchase price of the Assets shall be made by Seller
Ross-Ross
6. Paragraph 5 shall no[ be construed ~to prohibit Howard Ross fi-om being
employed in the restaurant indnstry in Aspen, Colorado.
7. In paragraph 6, the Transition Period shall commence on the day following the
Election Date, consultation by Seller shall be limited to Howard Ross ("Ross"),
the principal of Ross-Ross, the Transition Period Ross shall end on Closing
and Seller, not Buyer, shhll be entitled to all income duhng file Transition
Petfod.
8 In paragraph 13, Buyer, not Seller, shall pay all nsc and sales taxes accruing
by virtue of the transaction comemplated under the Contract.
ENTRY:
Beveled Mirror with rose
Menu Iigtxtboard
ARTWORK:
Various or/gSnal & print pieces
STAINED GLASS WINDOWS:
2 Entry Area
1 The Famous original width of The Main Dinir~g Area "The Mother Lode"
BAR AREA:
2 T.V.s
1 Stereo System : "
t2 Bar Stools
3 Bar Tables
3 Chandeliers
8 T~ow pillows
i Stained glass bar light
Antique wood backbar
1 POS Panasonic computer with printer terminal
1 Credit card terminal with printer
1 Soda gun/Sink rack setup
1 Bar beer cooler
1 Free standing fi.replace
DINING ROOMS:
20 tables
130 Bent wood caf~ chairs -
5 overhead fans
4 A~atique light fixtures
1 Free stand/ag "Wait to be seated" .s~gn
10 Brass coat racks
2 wall motmted coat racks
130 Place settings-fall china sets, wine & water glasses, silverware, linens (with backup)
2 POS Panasonic computers with printers
4 Cash drawers
1 red wine rack for 150 bottles
Swamp cooler back room
Middle room ak cooled
Multi thermostat forced air bar & dining area
PATIO:
14 Patio Tables (stored in attic m wrater)
65 Chairs ( stored in attic m winter)
2 Overhead gas heaters
4 Portable Propane heaters
1 Original artwork wrouf&t Iron Fence
10r/g4mal "Mother Lode" sign
7 Umbrellas
1 Wrought iron/wood bench
1 Iron service rack
BACK PREP/EMPLOYEE CHANGE ROOM/CHEF'S OFFICE/STORAGE:
Dry food storage racks/shelves
2 Stainless steel prep tables
1 salad spirmer
2 Bay sink
Employee lockers
1 Payroll Computer/Time Clock
Employee bathroom with shower
1 500lb. Ice machine
UPSTAIRS STORAGE:
1 10001b water cooled ice machine.
3 file cabinets
Dry storage shelves for china/glass/paper products
1 Locked liquor cage
1 Soda gxm bar system ro bar area
KITCHEN:
1 10 burner Vulcan stove with oven 12/10/02
2 six burner stoves with ovens
1 Pantry line cooler
2 Salad coolers
1 French fryer
1 Dishwasher - 3 years old
1 rr/ple divider sink
3 Prep tables
Floor mats entire kitchen
Double drawer bread warmer
POS remote printer
Espresso machine - 3 years old
1 coffee machine/maker
1 coffee warmer
1 patio entry sink
1 20 gallon mixer with meat grinder
1 Hobart small mfixer
1 Stock Pot burner/warmer
2 Walkin coolers w/th water cooled compressors
1 Walk/n freezer
1 three door Reachin/Walkin cooler
1 Conveyor belt toaster
1 Line shelf with warmer
1 Walkin cooler for white wine/beer
1 Boiler & pre-heat water/snow melt for patio roof
2 Water heaters 50 gallon
1 Soft water system
25 Sautee pans
Varoins stock pots
Kitchen utensils
1 two compartment sink
Various trays for sernce & stands
Ice buckets
OFFICE:
3 Desks
2 File Cabinets
1 Safe - -
1 Stereo System for dining area
1 IBM Computer A/P Daily?Payroll & printer
2 Office Chairs
Fax machine
4 phone line/w/th roll over answering system
air conditioning unit
ENTRY:
Beveled Mirror with rose
Menu lightboard
Menu Fr ~ m e d
2 h~g pI~ts
No smo~g & Res~oom
2 H~g memu boxes
B~:
Ofi~ by Rob~ Malls
Lady of Shallot
Fireplace:
Fhe L~e
Maya N~ed
Ma~ Room:
Socrates
Red ~bbon hcing ~t
Rose ~ hair
Red cap facing le~
Red bow facing right
D~k lady
Table 6 lady
Table 15 lady
Table 15 couple
Table t4 lady
Table 13 lady
~ddle Room:
Table 5
Wall leR
Table 4
Table 17
W~t right
Table 16
Back Room:
2 l~ge loun~ng la~es
Ba~er
D~ae
Renok pr~r
C~!y haked lady
EXHIBIT "B