HomeMy WebLinkAboutresolution.council.024-89
RESOLUTION NO. 02t
(Series of 1989)
A RESOLUTION REGARDING UNIT #1, McARTHUR CONDOMINIUMS
WHEREAS, Unit #1, McArthur Condominiums, located at 705
Cemetery Lane, is currently restricted to the terms and condi-
tions of that purchase and option agreement between the City of
Aspen and Robert S. and Leonarda A. Anderson, joint tenants,
dated February 27, 1987; and
WHEREAS, effective August la, 1989, the passed Resolution
No. 24 (Series of 1988) regarding Unit #2, McArthur Condominiums
with respect to modifying those terms and conditions of the
Purchase and Option Agreement between the City of Aspen and Paul
J. Taddune and Constance E. Taddune; and
WHEREAS, Robert S. and Dina Anderson wish to modify the
Purchase and Option Agreement between themselves and the City of
Aspen, consistent with the manner in which the Purchase and
Option Agreement between Paul J. Taddune and Constance E. Taddune
was amended.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Section 1
Paragraph 7(c) (ii) (a) shall be modified to reflect that the
CPI-U Housing - U.S. City Average shall be substituted for the
Denver-Boulder Consumer Price Index (CPI-U-Housing) and shall be
utilized for the purposes of computing the repurchase price.
Section 2
Upon execution by the Mayor, and by Robert S. and Leonarda
A. Anderson, this resolution shall be deemed to modify the
purchase and option agreement in accordance with the terms
hereof.
Dated:
~
, 1989.
I, Kathryn S. Koch, duly appointed and acting City Clerk do
certify that the foregoing is a true and accurate copy of that
resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held
~~
~!oc1 ~rk
, 1989.
The terms of the foregoing are approved and agreed to by the
undersigned.
~>ljL -
-----
Robert S. Anderson
~!2.iU~
Leo rda A. Anderson
2
MEMORANDUM
93-89
TO:
CITY COUNCIL
CITY MANAGER *
FROM:
ROBERT S. ANDERSON,
DATE:
JULY 19, 1989
RE:
CITY MANAGER HOUSE AGREEMENT AND MORTGAGE POSSIBILITIES
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A combination of exploring my personal financial situation and
exploring Paul Taddune's house contract has led to the following
questions: 1) Shouldn't my inflation index indicator be changed
to the same one used in the Taddune contract, and 2) What "2nd
mortgage" possibilities are allowed me.
Councilman Bill Tuite was delegated the responsibility to
research this issue and respond to Council in Taddune's case, so
I called Bill and discussed this with him. He was instrumental
in recommending that I clear up the second mortgage question at
the same time.
Bill recommends the following: 1) that the "inflation index"
clause in my house contract be changed to mirror that used for
the Taddune house, and 2) that second mortgages be allowed, with
the top limit pegged at no more that the city price of repurchase
as per this index. After speaking to a banker and to Fred
Gannett, I also ask that the Mayor be authorized to sign, on
behalf of Council, any agreement needed to either confirm this
action to a bank or to allow the city's current "Second Mortgage"
of $16,500 to be subordinated to a new second mortgage from
another financial institution so long as the total of all liens
in the property does not exceed the index value as set forth by
contract.
RECOMMENDATION: By approving the concert agenda, you would
approve the above authorization's.
PURCHASE AND OPTION AGREEMENT
This Agreement, made this ',!T~ day of j .t.. _:-1( it,_:/
1987, by and between Robert S. Anderson, Jr. and Leonarda A.
Anderson (hereinafter "Assignees"), and the CITY OF ASPEN, a
Colorado home rule municipal corporation (hereinafter "City").
WIT N E SSE T H:
WHEREAS, the City of Aspen, Colorado, owns certain real
property situate in the City of Aspen, Pitkin County, Colorado
(the below-described condominium unit); and
WHEREAS, Robert S. Anderson, Jr. is the City Manager of the
City of Aspen and he and his wife Leonarda A. Anderson desire to
purchase the said real property as joint tenants; and
WHEREAS, the City of Aspen, in furtherance of its policy in
assisting its employees in securing affordable housing, has
indicated its willingness to have the said real property pur-
chased by its City Manager subject to certain conditions and
restrictions;
NOW, THEREFORE, in consideration of the terms, conditions,
restrictions and covenants contained herein, the parties hereto
agree as follows:
1. Parties. This Purchase and Option Agreement (the
"Agreement") is made by and between:
a. City of Aspen, Colorado, a mu~icipal corporation
and horne-rule city organized under the laws of the State of
Colorado ("City"); and
b. Robert S. Anderson, Jr., City Manager, of the City
of Aspen, and his wife, LEonarda A. Anderson, as joint tenants
(collectively "Assignees").
2 .
the terms
to convey
following
Aqreement to Convey; Property Descriotion.
and conditions set forth in this Agreement,
to Assignees (reserving the below-described
described property:
Subject to
City agrees
option) the
Unit 1
McARTHUR CONDOMINIUMS (a condominium)
appearing in Book 15 at Pages 30-32 as RecEption No.
252899 of the records of Pitkin County, Colorado, and
as described and defined in that Condominium Declara-
tion for McARTHUR CONDOMINIUMS appearing in such
records at Book 394 Page 569 as Reception No. 226641,
as amended by correction recorded September 2, 1983,
in Book 451, at Page 427, as Reception No. 252907,
being situate on Lot 1, Aspen Employee Housing No. 1
SUbdivision, City of Aspen, Pitkin County, Colorado.
Address: 705 Cemetery Lane
Aspen, Colorado
Such condominium unit, including all appurtenances, shall be
referred to in this Agreement as the "Unit".
3. Purchase Price. The purchase price, subject to
adjustments and prorations as agreed-upon by City and Assignees,
to be paid for the Unit shall be $186,500.00 and shall be paid by
Assignees to City at the Closing (as defined in Paragraph 6 of
this Agreement) as follows:
$167,850.00 in cash or by certified or cashiers check;
and
$18,650.00 in the form of an adjustable rate
promissory note to be signed by Assignees at
closing, interest and principal to be fully
paid in 12 1/2 years, substantially in the
form of that note attached hereto and made a
part hereof as Exhibit "C".
The Deed(s) of Trust given by Assignees as security for any
purchase funds shall be approved by the City.
4. Conveyance. At the Closing, title to the Unit shall be
marketable in City. Subject to payment of the purchase price as
provided in Paragraph 3 and compliance by Assignees with all of
the other terms and conditions to be complied with by Assignees
under this Agreement, City shall execute and deliver to Assignees
at the Closing a good and sufficient General Warranty Deed
conveying the Unit free and clear of all liens and encumbrances,
except for those items shown on the annexed Exhibit "A". The
parties hereto further agree to execute at the time of conveyance
and have recorded, at Assignees' expense, an amended Declaration
of Restrictive Covenants for the property on a form identical to
that attached hereto as Exhibit "B" and incorporated herein by
this reference.
The following items of property are included ln this
sale at no extra cost and shall be conveyed at Closing by Bill of
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Sale: Any of the following items currently on the Property:
lighting, heating, plumbing and ventilating fixtures, except for
one hanging Tiffany lamp in kitchen which is owned by Assignees;
all outdoor plants, window and porch shades, venetian blinds
(excluding the "mini blinds" located in each of the two smaller
upstairs bedrooms), storm windows, storm doors, screens, curtain
rods, drapery roads, attached mirrors, linoleum, floor tile,
awnings, woodburning appliances, built-in appliances, wall-to-
wall carpeting, and, including without limitation, the items
listed on the annexed Exhibit "D". The aforesaid items shall
also be subject to and made apart of City's option to repurchase
the Unit and shall be reconveyed to City,by Bill of Sale at the
time of City's repurchase of the Unit pursuant to Paragraph 7,
the cost for which shall be encompassed within the purchase
price.
5. Closinq. The consummation of the sale of the Unit by
City to Assignees by simultaneous exchange of the purchase price
and the Deed is referred to in this Agreement as the "Closing".
The Closing shall take place at II'. uJ , ~D -=--- I , at a place
(or at such other time, date and place) as may be agreed upon by
the parties. The City and Assignees shall be liable for their
customary closing costs.
6. Riqhts Survivinq Closinq. Assignees and City expressly
stipulate and agree, for themselves, their heirs, representa-
tives, successors and assigns, that the City's rights under this
Agreement including without limitation, the rights described in
Paragraphs 2, 3, 4, 6, 7, 8 and. 9 herein, survive the Closing
between City and Assignees and are the basis of the bargain
between the City and the Assignees in the conveyance of the Unit
and are not merged with the Deed given by the City hereunder.
7. Riqhts of Assiqnees to Purchase Unit; Post-Closinq
Ootion Riqhts in City.
a. Assignees acknowledge that Robert S. Anderson, Jr.
is presently the City Manager of the City of Aspen, a munic~pal .
corporation.
i. Assignees hereby grant to the City the option
to purchase the Unit, such option to be exercisable at any ti~e
during the 60-day period following the date on which Assignees'
employment by the City of Aspen, Colorado, is terminated (the
"Termination Date") for any reason, including death, disability,
or voluntary or involuntary termination(with or without cause),
at the purchase price calculated in accordance with subparagraph
(c) of this paragraph. The City's exercise of its option shall
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be evidenced by delivery to Assignees of a written notice to that
effect. If the City does not exercise its option under this
subparagraph (a), Assignees may sell the Unit to a third party.
Upon sale to a third party, the City shall have the rights
provided by subparagraph 7(h). The City retains the right to
waive the exercise of this option, by Resolution of the City
Council, and permit the Assignees to maintain ownership of the
Unit; provided, however, that such a waiver shall not be deemed
to be a waiver of the City's option rights at any subsequent time
unless expressly so stated.
11. Assignees hereby grant to the City the option
to purchase the Unit if the Assignees default under the terms of
this Agreement or be declared in default under any financing or
security instrument affecting the Unit. With respect to default
under this Agreement, such option shall be exercisable only after
a written notice to cure a specific default (or defaults) is sent
to Assignees and said default (or all of the defaults) is not
cured within ten (10) days after receipt of such notice, and said
option shall then be exercised, within sixty (60) days of the
uncured default, by delivery to Assignees of written notice of
intent to exercise the option. If the default is of such a
nature that it cannot reason~bly be cured within 10 days after
receipt of Notice by the City, Assignees shall be deemed to be
curing noticed default(s) if they make good faith, reasonable and
continuous efforts to cure such defaults beginning during the 10-
day period. With respect to default under any financi~g or
security instrument affecting the unit, said option shall be
exercisable within sixty (60) days after a declaration of default
by the holder of such instruments and the expiration of the
relevant curative period, if any, and shall be exercisable by
delivery to Assignees of written notice of intent to exercise the
option. Under this subparagraph, the date of delivery of any
notice of intent to exercise the option shall be deemed to be the
Notice Date ("Notice Date").
In addition to the City's right to declare a
default under this Agreement or to exercise its option hereunder
in the event of such a default or Assignees' default under
financing or security instruments, the City is hereby granted the
right by Assignees to pay any amounts due by them (i.e. insur-
ance, taxes, note payments) or to perform any of their o~liga-
tions to preserve the Unit while the City is exercising its
option. The City shall be entitled to collect eighteen percent
(18%) interest per annum from Assignees on any such payment(s)
made hereunder.
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b. Except as permitted by this Agreement, Assignees
may not sell, exchange, dispose of or otherwise transfer the Unit
without first offering to sell the Unit to the City. Except in
the event of termination of employment (see Paragraph 7(a)), if
the Assignees propose to sell, transfer or dispose of the Unit or
any interest therein or to discontinue the use of the unit as
their primary dwelling, Assignees shall give to the City a
written notice to that effect, which notice shall be deemed an
offer to sell the Unit to the City at the purchase price calcu-
lated pursuant to subparagraph (c) of this paragraph. The City
shall have sixty (60) days from the date of its receipt of that
notice from Assignees (the "0ffer Date") within which to accept
Assignees' offer, such acceptance to be made by the delivery of a
written notice of acceptance to Assignees. If the City does not
accept Assignees' offer within that GO-day period, Assignees may
sell the Unit to a third party; provided, however, that the sale
to a third party must be consummated not more than 120 days after
the Offer Date. Any sale not consummated within that period
shall require a further notice and offering to the City in the
same manner provided above for the initial notice and offering;
except that in such a further notice and offering, the City shall
have only ten (10) days to deliver its notice of intent to
exercise its option and thirty (30) days to close on such notice
and, if the City fails to exercise its option in this instance,
the Assignees shall be free to sell the Unit to a third party
without time limit, subject to the deed-restrictions on the Unit
and Paragraph 7(h) herein; except that once, pursuant to this
section, the Assignees are free to sell the Unit to third parties
without time limit, they may reduce the minimum permitted sales
price pursuant to Paragraph 7(h) (2) by ten percent (10%) for each
thirty (30) days after the City's second failure to exercise its
option under this section. Upon sale to a third party, the City
shall have the rights provided by subparagraph 7(h).
c. The purchase price payable by the City upon its
purchase of the Unit pursuant to either subparagraph (a) or
subparagraph (b) shall be in an amount which equals the sum of
the following:
i. The purchase price paid by Assignees for the
Unit, as set forth in Paragraph 3 of this Agreement; plus
ii. Appreciation on the purchase price calculated
as the lesser of:
(1) 7% of the purchase price per year
(giving effect to any fractional years) from the date of Closing
to the date of resale; or
5
percentage increase
Price Index (CPI-U)
Closing to the date
(2) The purchase price multiplied by the
(if any) in the "Denver-Boulder Consumer
Housing", for the period from the date of
of resale; plus
iii. The costs of all labor and materials used in
making improvements or additions of a permanent nature to the
Unit, except that only those improvements or additions that shall
have been approved, both for construction and for addition to the
cost of the Unit pursuant to this subparagraph prior to construc-
tion thereof, by the City Council, such approval to be evidenced
by a duly adopted Resolution, shall be added to the cost of the
Unit. The City Council may, however, approve the construction of
an improvement or addition to the Unit and disapprove of the
inclusion of the cost of the improvement or addition, or any part
of the cost, to the cost of the Unit under this 7(c). The City
has paid or will pay for construction and has included within the
cost of the Unit to Assignees, the labor and materials costs for
those items set forth in Exhibit "E"; and by execution of this
Agreement, City approves the following for construction and for
addition to the repurchase price:
1. The expense of restaining the exterior of the unit
prior to October 1, 1987, incurred by Assignees, in
excess of $800.00 (i.e. the contribution to be paid by
the City in accordance with Exhibit liE") up to the sum
of $1,800.00; that is, not more than $1,000.00 will be
added to the repurchase price if the cost of staining
is in excess of $1,800.00.
2. $250.00 for the following: front storm and screen
door, several wooden or brass clothes hooks, towel
holders, and bath accessories, including wooden shower
rod brace, three smoke detectors; seven inch and eight
inch stove pipe and elbows; two light fixtures;
basement wash tub and facilities; two water heater
jackets; one wooden interior ski rack; three "Levelor-
type" mini-window blinds (custom made) and three
curtain rods.
iv. The parties agree that if the purchase price
computed under this section shall be higher than that allowed by
the then-existing employee housing price guidelines, the City
shall waive such guidelines to the extent such guidelines are
exceeded by the said purchase price.
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d. An owner's title insurance commitment in the
amount of the purchase price determined pursuant to subparagraph
(c) shall be furnished to the City, at Assignees' expense, within
30 days after giving by the City of the notice of exercise of
option pursuant to subparagraph 7(a) or the notice of acceptance
pursuant to subparagraph 7(b). When conveyed to the City, the
Unit shall be free of all liens and encumbrances, except (i)
general property taxes not yet due and payable, (ii) liens for
special improvements (whether assessed or not), (iii) easements
for telephone, electricity, water, and sanitary service,s (iv)
restrictive covenants of record, and (v) encumbrances listed on
the annexed Exhibit "A" and on the Deed delivered by the City to
Assignees, and title shall be otherwise marketable in Assignees.
Marketability shall be a matter for the good faith judgment of
the city. In the event title is not marketable, written notice
of any defect shall be given to Assignees within seven (7) days
after the City has received the title insurance commit~ent. If
title shall not be rendered marketable, or security or indemnifi-
cation satisfactory to the City against any defect shall not be
provided to Assignees within thirty (30) days after such written
notice of defect, then, at the City's election, the contract
formed upon the exercise of the City'S right to purchase the Unit
pursuant to this Agreement shall be voidable by the City. In the
event that the City does not elect to void the contract, the
purchase price shall be appropriately reduced to take into
account the defect. If the defect is a lien or encumbrance which
is liquidated in amount and not contested by Assignees, then the
purchase price shall be reduced by such amount and the underlying
liability shall be paid or otherwise satisfied by the City. In
all other cases, the parties shall attempt in good faith to agree
upon an appropriate reduction in the purchase price or, if it is
not reasonably possible to quantify the defect, to agree upon an
escrow of the portion of the purchase price or other arrangement
which provides reasonable safeguards for both parties. Failing
such an agreement, the matter shall be submitted to arbitration
under Paragraph 8.
e. If at or after the time the City's right to
purchase under either subparagraph 7(a) or 7(b) is exercised, any
portion of the Unit is taken by condemnation or any portion of
the Unit has been damaged and not fully reconstructed or
repaired, the purchase price shall be appropriately reduced to
reflect the loss or damage to the Unit; provided, however, that
if the damage is covered by insurance, the Assignees shall assign
the insurance proceeds to the City and the purchase price shall
be reduced only to the extent that the cost of reconstructing or
repairing the damaged portion of the Unit exceeds the insurance
proceeds. If the parties are unable to agree on an appropriate
7
reduction in the price, the mater shall be submitted to arbitra-
tion under Paragraph 8. If submitted to arbitration, the duty of
the arbitrator(s) shall be to determine the percentage decrease
in the value of the Unit as a result of the taking or the cost of
repairing or rebuilding the damage or destroyed portion of the
Unit. The arbitrator(s) shall not consider the then current
market value of the Unit in determining the amount by which the
purchase price should be reduced.
f. Upon the City'S exercise of its right to purchase
the Unit pursuant to subparagraph (a) or subparagraph (b), unless
the City elects to void the contract as provided by subparagraph
(d), and subject to simultaneous tender of payment of the
purchase price by the City at Closing, Assignees shall execute
and deliver a good and sufficient general warranty deed to the
City conveying a good and sufficient general warranty deed to the
City conveying the Unit (and items set forth on Exhibit "D") free
and clear of all liens and encumbrances except those permitted
under subparagraph (d) on the date identified as follows: (i)
120 days after the Termination Date or Notice Date (if Seller is
purchasing pursuant to subparagraph (a); (ii) 120 days after the
offer Date (if Seller is purchasing pursuant to subparagraph
(b)); (iii) if a notice of defect has been sent pursuant to
subparagraph (d), on the date sixty (60) days after Assignees'
receipt of such notice of defect or on the last day for Closing
pursuant to Paragraph 7(f) (i) or (ii), whichever is later.
Delivery of the Deed shall occur at the city's offices or at such
different place as may be establiShed-by mutual agreement.
Taxes, utilities, insurance, and similar items shall be prorated
to the date of delivery of the Deed to the City and closing costs
shall be borne by Assignees. As soon as reasonably possible
after delivery of the Deed, Assignees shall furnish to the City
an owner's title insurance policy issued pursuant to the title
commitment delivered to the City pursuant to subparagraph (d).
The premium for that title policy shall be paid by Assignees.
g. Assignees agree that from and after the date of
this Agreement through the date on which the City'S rights to
purchase the Unit under this Agreement expire or the Unit is
transferred to the City, Assignees shall occupy the Unit as
Assignees' principal residence, and Assignees shall not mortgage
or encumber the Unit, except for a mortgage or Deed of Trust
securing a loan assumed to purchase the Unit, or permit the Unit
to be otherwise encumbered or interest herein conveyed, trans-
ferred, exchanged or disposed of without the prior written
consent of the City or to sell or lease the Unit or any interest
in the Unit except pursuant to terms of this Ag~eement. In the
event Assignees wish to refinance the purchase ~oney Deed(s) of
8
Trust, the consent of the City shall not be unreasonably with-
held. If Assignees wish to contest in good faith, any lien or
encumbrance asserted against the Unit, they may bond over or
otherwise secure payment of such encumbrances without being in
default hereunder.
h. If the City does not exercise its right to
purchase the Unit pursuant to either subparagraph (a) and
subparagraph (b), or, if having exercised such right, the City
elects to void the purchase contract pursuant to subparagraph
(d), then Assignees shall be free to sell the Unit to a third
party as follows:
i. The Unit shall first be given an appraised
value. Such appraised value shall be set by a single MIA
appraiser, if one can be agreed upon by Assignees and the City,
with costs thereof to be split by the parties or, if the parties
cannot agree on a single appraiser, the parties shall each
retain, and pay for, their own MIA appraisers, and the appraised
value shall be the average of the two appraisals. Such appraised
must specify separate values for the land and the improvements
thereon. The appraisal shall reflect the fact that the Unit is,
by deed restriction, subject to certain employee-housing guide-
lines and restrictions.
ii. Once the appraised value is set, the
Assignees will use their best efforts to market and sell the Unit
to the highest third party offeror (subject to the deed restric-
tions burdening the Unit) within the relevant time period herein
provided for, but in no event may Assignees sell the Unit for
less than ninety percent (90%) of the appraised value of the
Unit, as determined in subparagraph (i) above, except as provided
otherwise herein.
iii. If the Unit is sold to a third party under
this paragraph, the gross purchase price (which shall not be less
than 90% of the appraised value of the Unit, except as provided
herein) s~all be paid out as follows:
(1) First, the Assignees shall receive funds
or debt instruments, in a manner and proportion to be determined
by Assignees and the third-party purchaser, in an amount equal to
the price calculated under Paragraph 7(c) herein. Next, the City
shall receive, in cash or certified funds at Closing, the
remainder of the gross purchase price, representing the recapture
of the appraised value of the land of the Unit and surplus
profit, if any. If the amount the City receives is less than the
appraised value for the land (as adjusted for any sale at less
9
than 100% of the appraised value hereunder), the Assignees and
the City shall share the Assignees' realtor's commissions, if
any, in amounts pro rata to the percentage of the gross purchase
price attributed as providec above to Assignees and the City. If
the amount the City receives is more than the appraised value of
the land (as adjusted for any sale at less than 100% of the
appraised value hereunder), the amount in excess of the appraised
value of the land (representing surplus profit to the City) shall
first be applied to pay the Assignees' realtor's commissions, if
any. If there is a remainder in the surplus profit after payment
of the commissions, it shall be paid to the City at Closing in
cash or certified funds. If the amount of surplus profit is not
sufficient to pay the commissions, if any, the deficiency shall
be shared by Assignees and the City in amounts pro rata to the
percentage of the gross purch~3e price attributed as provided
above to Assignees and the City.
The City agrees that at such time as its
right to purchase the Unit under either subparagraph (a) or
subparagraph (b) shall have expired, the City shall, at
Assignees' request, execute a certificate confirming that fact,
in form sufficient for recordation, provided that the City first
receives assurances satisfactory to it that it shall receive the
amount to which it is entitled pursuant to this subparagraph (h)
upon the sale of the Unit to a third party.
i. Notwithstanding anything to the contrary contained
in this Agreement, all rights of the City under this Paragraph 7
with respect to the Unit or any interest in the Unit shall be
effect~ve only during the lifetime of the survivor of the now-
living children of the members of the City Council of the City of
Aspen, Colorado, as of the date of this Agreement, plus twenty-
one (21) years.
j. From the date of Closing and during the period of
the option rights of the City hereunder, or while the City has
any interest in the subject property herein, Assignees shall keep
upon said property fire insurance and general liability insurance
adequate to protect the City'S rights therein, evidence of which
coverage shall be delivered to the City at Closing. In such
insurance, the City shall be named as co-insured and shall be
entitled to ten(10) days' written notice prior to any cancella-
__ion, termi~ation or expiration of said insurance.
k. During the pendency of any option or waiting
period hereunder, Assignees may rent the Unit to a person in the
following priority: (1) to a City employee; (2) to a person
qualified under the relevant employee housing deed restriction
10
occupancy guidelines; (3) to an employee who is a resident of the
City of Aspen; (4) to a person on the free market. Such rental
shall be expressly subordinate to a conveyance under this
Agreement.
8. Arbitration. If the City and Assignees shall be unable
to agree as to the amount by which the purchase price to be paid
by the City upon exercise of its right to purchase a Unit should
be reduced because of a lien or encumbrance as provided in
subparagraph 7(e), or upon any similar matter under this Agree-
ment (including whether any particular matter is subject to
arbitration), such question or questions sh:'ll be submitted to
arbitration upon written notice of demand by either party. Such
arbitration shall be by one arbitrator mutually selected, if
possible. If the parties are unable to agree upon one such
arbitrator within fifteen (15) days after demand for arbitration
is made, then arbitration shall be by three arbitrators to be
selected in the following manner. One arbitrator shall promptly
be selected by each party. The two arbitrators so appointed
shall, within fifteen (15) days after the last appointment,
appoint a third arbitrator, who shall serve as chairman of the
board of arbitration. An arbitration hearing shall be held on
the questions and controversies to be arbitrated as soon as
possible after the arbitrator or arbitrators shall have been
selected, upon written notice of the hearing given by the
arbitrator or the chairman of the board of arbitration to both
parties, and, at such hearing, both parties shall have the right
to be present and to be heard. After'such hearing, the arbitra-
tor or the board shall render its written decision on the
arbitrated questions and controversies. The arbitration shall be
governed by the rules of the American Arbitration Association.
The decision of the arbitrator, or the decision of the
majority of the three arbitrators, as the case may be, shall be
binding and conclusive upon the parties. All fees and expenses
of arbitration (exclusive of attorneys' fees) shall be shared
equally by the parties, unless the arbitrator or a majority of
the three arbitrators shall decide that the position of either
party was without appreciable merit or was taken in bad faith, in
which case such party shall bear the entire cost of arbitration.
In the event either party shall fail or refuse promptly
to appoint an arbitrator as required above, such appointment
shall be made for the defaulting party, on the application of the
other party, by a jUdge or the court in Pitkin County, Colorado,
having jurisdiction in civil cases involving amounts in contro-
versy in excess of $10,000.00. Likewise, if the first two
arbitrators as selected and appointed shall fail to appoint a
11
third arbitrator within fift~en (15) days after the second
arbitrator shall have been appointed by a party to this Agree-
ment, or by a judge, the third arbitrator shall be appointed by a
judge of that court on application of either party; provided,
however, that if the second arbitrator be appointed by a judge,
the appointment of the third arbitrator shall not be made by the
same judge.
All arbitrators shall be free of any interest in the
questions in controversy and shall not be employed by or related
to Assignees or the City, or have any interest in the Unit.
9. Miscellaneous Provisions.
a. All notices required or permitted by this Agree-
ment be delivered in person to Assignees or to the City Manager
of t~e City of Aspen or by the United states Mail, registered or
certified, postage prepaid and addressed as follows:
If to City:
City Manager of the City of
Aspen
130 South Galena Street
Aspen, Colorado 81611
If to Assignees:
Robert S. Anderson, Jr. and
Leonarda A. Anderson, Husband
and Wife, as joint tenants,
705 Cemetery Lane
Aspen, Colorado 81611
or to such other address as a party may specify in writing by
notice delivered to the other party in the manner provided above.
All notices shall be deemed effective upon receipt.
b. In the event the last day permitted for the
performance of any act required or permitted under this Agreement
falls on a Saturday, Sunday, or holiday, the time for such
performance shall be extended to the end of the next succeeding
business day.
c. This Agreement shall be recorded in the office of
the Pitkin County Clerk and Recorder promptly after execution of
this Agreement with costs thereof to be paid by Assignees. The
purchase and option transaction hereunder is expressly understood
by the parties hereto to involve the City of Aspen as a seller
with respect to the City's Real Estate Transfer Tax and State
Document Fee and the City represents that the within-contemplated
transactions are exempt from the city's Real Estate Transfer Tax.
12
d. City represents and warrants to Assignees that it
is not a foreign person as defined in Section 1445(f) (3) of the
Internal Revenue Code of 1954, as amended, and agrees to execute
and deliver to Assignees at closing an affidavit of such fact.
e. The terms and provisions of this Agreement shall
be binding upon and shall inure to the benefit of the heirs,
executors, administrators, personal representat1ves, successors
and assigns of the City and Assignees; provided that the
Assignees may not assign or modify this Agreement without written
prior consent of the City as contained herein.
f. Captions used in this Agreement are for conven-
ience only, and shall have no effect upon the construction or
interpretation of any part of this Agreement.
g. Any reference used in this Agreement to the
masculine gender shall include the feminine and the neuter and
any use of the singular shall include the plural, if the context
so requires.
IN WITEESS\ WHEREOF,
seals this Ll tH day of
the parties nave
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/
I
SELLER:
set their hands and
, 1987.
CITY OF ASPEN, COLORADO
~ '
By ~.
William L. Stirling,
13
ATTEST:
( I' /,/,
/ /,--;- / . \ /i'll'
.. / / ' /: '(.I / "L I,' !-c. U'",--
Kathryn S;f~o~h, city Clerk
BUYER:
~ // /,7
" -~LC7:(i' '~'c'?:c G{ . O/f:>;f~' /~4 r)~
~L onarda A. Anderson
ASSIGNEES: I
, /.. - II
, ,t} (- I /i; . i
Yr~, /, ~J./)/l/Y.~' h
Robert S. Anderson, fro
STATE OF COLORADO
SSe
County of Pitkin
The foregoi~g instrument was acknowledged before me this
///'-? . d ',,--r- -' 7
~-?<../T~I ayof "-,./C.....:./,././/..-<'-..(y/ , 198~, by Robert S.
Anderson, Jr. and Leonarda A. Anderson.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
c:4/2~P~
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./Notary Public /
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Address
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14