HomeMy WebLinkAboutresolution.council.051-91 RESOLUTION NO.
(Series of 1991)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AUTHORIZING AND RATIFYING A CONTRACT TO BUY AND SELL REAL ESTATE
FOR THaT PARCEL OF PROPERTY COMNONLY KI~OWN AS 831 UTE AVENIr2,
ASPEN, COLORADO, AND AUTHORIZING THE MAYOR AND/OR CITY MANAGER TO
EXECUTE SUCH ADDITIONAL DOCUF~ENT$ AS NECESSARY TO CONCLUDE SAID
PURCHASE.
WI~EP~EAS, a contract to buy and sell real estate has been
negotiated between the City staff and the Nelson/DeVore Partner-
ship for the City's purchase of that parcel of real property
situated in ths City of Aspen commonly know~ as 831 Ute Avenue;
and
WHEREAS, the City Council finds and determines that the
subject parcel is desirable and advantageous for the development
of affordable housing; and
WHEREAS, the City Council finds that the terms of the con-
tract to purchase the property are fair and reasonable; and
WHEP~EAS, the City Council finds and determines that the
contract to buy and sell real estate is in the public interest
and will promote the public welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO, that the Contract to Buy and Sell Real
Estate for the purchase by the City of the real property commonly
know~ as 831 Ute Avenue, Aspen, Colorado, dated Nove~Lber 29,
1991, and previously executed on behalf of the City by the Acting
City Manager, a copy of which is appended hereto and incorporated
herein, is hereby approved and ratified in all of its terms and
conditions.
BE IT FURTHER P~ESOLVED that the Mayor and/or the City
Manager are hereby authorized to execute such additional docu-
ments as necessary to conclude the City's purchase of the real
property identified herein.
RESOLVED, APPROVED AND ADOPTED this ~day of
~,~F-~-~4J , 1991, by the City Council for the City of
Aspen, Colorado.
John Bennett, Mayor
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 ~f~-~-z~3 d~ , 1991.
city Clerk
Jci24.~ - ~
tlOV 19 1
CONTRACT TO BUY AND SELL REAL ESTATE
C?/A~'O R N r',.%
Date: Novemb~.~,%, 1981
1. PARTIES A~D PROPERTY. The City of Aspen, a Colorado
municipal corporation (hereinafter "Purchaser") and/or its as-
signs, agrees ~o buy and Nelson/DeVore Partnership, a Colorado
general partnership (hereinafter "Seller") agrees to sell, on the
terms and condltions set forth below, the following described
real estate situated in the County of Pitkin, State of Colorado,
to wit:
Lots 14 and 1SA, Ute Addition to Aspen, except mineral
interests; a tract of land being and part of Lots 33 and 38,
Sec. 18, Township l0 South, Range 84 West of the 6th P.
lying Northeasterly of an existing roadway which roadway
abuts the Southwesterly boundary cf the said tract which
more particularly described as follows: Beginning at the
most southerly corner of Lot 14, Ute Addition to Aspen,
thence S. 45:42~00'' W. 81.71 ft.; thence N. 27:09'00" W.
34.27 ft.; thence N. 13~51'00'' W. 47.51 ft.; thence N.
28:34'00" E. 57.60 ft.; thence Southeasterly along line I-9
of the former boundary of the City of Aspen to the point of
beginning. Also described as the Ute Trail Townhouses and
the Billings Place Subdivision and P.U.D. according to the
plat recorded in Plat Book 26 at Page 32 and subdivision
agreement recorded in Book 646 at Page 16, Pitkin County
records, and also kno%nn as 831 Ute Avenue, Aspen, Colorado;
together with all interests of Seller in vacated streets and
alleys adjacent thereto, all easements and rights-of-way
appurtenant thereto, all physical improvements, buildings
and structures thereon, all attached fixtures, if any, and
including any appurtenant mineral rights owned or possessed
by Seller, and all appurtenant water rights, including any
rights Seller may have to the Durant Mine Water Ditch En-
largement, Priority 734, Structure No. 525, decreed ~n Civil
Action No. 5884 on November 5, 1971, by the D~str~ct Court
in and for Garfield County, Colorado, for 0.83 c.f.s., w~th
e prior~ty date of October 18, 1957, hereinafter referred to
as "the Property".
2. PURCHASE PRICE AND TERMS. The total purchase price for
the Property shall be One Mlll~on Three Hundred Thousand Dollars
and No Cents ($1,300,000.00), payable ~n U.S. dollars by Purchas-
er as follows:
(a) Seven Thousand Three Hundred Thirty-three Dollars
and Thirty-th_rea Cents ($7,333.33) in the form of cash or certi-
fied funds to be paid to Seller on or before November 29,
as non-refundable earnest money. Purchaser shall receive credit
for the $7,333.33 toward the purchase price at closing.
(b) Five Hundred Forty-two Thousand Six Hundred Sixty-
Six Dollars and Sixty-seven Cents ($542,666.67) in cash or certi-
fied funds =o be paid by Purchaser at closing.
(c) The balance of the purchase price shall be paid
by:
(i) Purchaser's assumption at or before closing
of Seller's rights and obligations under a
promissory note in favor of Deane Billings
(hereinafter "Lender") with a principal re-
maining balance owing at time of closing in
the sum of Seven Hundred Fifty Thousand Dol-
lars and No Cents ($750,000.00)and an inter-
est rate at no greater than eight and one-
half percent (8.5%) per annu~ with no prepay-
ment penalty. Monthly interest only payments
shall not exceed Five Thousand Three Hundred
Twelve Dollars and Fifty Cents ($5,312.50).
Said promissory note is secured by a deed of
trust recorded in the records of the Pitkln
County Clerk and Recorder at Book 606 at Page
365; or
(ii) Purchaser's execution at or before closing of
a new promissory note and deed of trust in
favor of Lender in the amount of Seven Hun-
dred Fifty Thousand Dollars and No Cents
($750,000.000), which note shall supplant and
act as a novation of the promissory note
executed by Seller in favor of Lender es
identified in section (i) i~u~ediately above.
3. ~ViDENCE OF TITLE. Seller shall furnish to Purchaser,
at Seller's sole cost and expense, a current ALTA co~itment for
title insurance on the Property, from a title company acceptable
to Purchaser, with all standard exceptions concerning liens for
labor, service, or materiels not of record and concerning detalls
reflected by sul-vey and inspection of the Property to be deleted
at closing, and all instznlments listed in the schedule of excep-
tions of said title insurance commitment on or before December 6,
1991. The title insurance commitment, together with any copies
of instruments furnished pursuant to this paragraph 3, shall
constitute the title documents.
4. TITLE DUE DILIGENCE, MERCHANTABLE TITLE AND CURE OF
DEFECTS. For the five (5) business day period next succeeding
delivery to Purchaser of the title insurance commitment (the
"T~tle Due Diligence Period"), Purchaser shall have the right to
object, on grounds of merchantability, to the condition of
Seller's title as reflected in the title insurance commitment.
If Purchaser so objects to the condition of Seller's title, and
if Seller declines to cure or attempt to cure that which Purchas-
er deems objectionable by time of closing, then, at Purchaser's
option, this contract shall be null and void and of no further
force and effect, each party shall be released from all obliga-
tions hereunder, and all payments and things of value received
hereunder shall be returned forthwith to Purchaser, except that
earnest money paid pursuant to paragraph 2(a) above. If Purchas-
er fails to object by 5:00 o'clock p.m. of the last day of the
Title Due Dlligence Period, or declines to exercise its option to
terminmte, then the condition of Seller's title as reflected on
the title insurance commitment shall be deemed acceptable for all
purposes under this contract. If, however, by reason of title
conditions first appearing or arising after the Title Due Dili-
gence Period, Seller's title is not merchantable in Purchaser's
sole and absolute discretion, and w~itten notice of defect(s) is
given by Purchaser to Seller or Seller's agent on or before the
date of closing, Seller shall use reasonable efforts to correct
such subsequently appearing or arising conditions prior to the
date of closing. If Seller is unable to correct such defect(s)
on or before the date of closing, at Purchaser's option and upon
written notice to Seller or Seller's agent on or before the date
of closing, the date of closing shall be extended thirty (30)
days for the purpose of correcting said defect(s). Except as
stated ~n paragraph l0 below, if title is not rendered merchant-
able by the extended date of closing, in Purchaser's sole discre-
tion, then at Purchaser's option this contract shall be null,
void and of no further force and effect, each par~y hereto shall
be released from all obligations hereunder, and all payments and
things of value received hereunder shall be returned forthwith to
Purchaser, except that earnest money pa~d pursuant to paragraph
2(a) ~bove.
5. SURVEY TO BE DELIVERED BY SELLER TO PURCHASER PRIOR TO
CLOSINg. On or before Dece~ber 6, 1991, Seller, at its sole cost
and e~ense, shall deliver to Purchaser a current survey of the
Property to be prmpared by a duly licensed Colorado land survey-
or. Such surwey shall show, at a minimum: all boundaries,
natural and artificial monuments and corners; courses and dis-
tances and angles of all boundary lines; t_he location, courses
and size and dimensions of all easements, rights-of-way, roads,
ditche~, water courses, and similar conditions of record or
visible from a physical inspection of t_he Property; and all
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buildings, fences, walls or other improvements located wholly or
in part on the Property. Such survey shall include the sur-
veyor's certificate to Purchaser, and to the title insurance
company providing title insurance pursuant to this agreement,
setting forth and verifying the accuracy of the legal descrip-
tion, shall certify that all of the foregoing requirements are
truly and accurately shown on the plat of such survey, and shall
certify the total number of acres contained in the Property.
6. COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELL~R.
Seller hereby covenants, represents and warrants to Purchaser the
following, all of which shall be true, accurate and complete as
cf the date hereof and shall survive the closing:
(a) Status and Authority. Seller has the right, legal
capacity and authority to enter into and perform its obligations
under this contract, and the documents to be executed and deliv-
ered pursuant hereto.
(b) No Liabilities. Prior to or at the time of
closing, Seller 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 Property, except
for that deed of trust identified in paragraph (2) (c) (i) in the
event Purchaser agrees to assu~e same, and Seller shall not
engage in any action with respect to the Property between the
date of execution of this contract and the closing that could
give rise to a lien or claim against the Property.
(c) Litigation. No action, suit or proceeding is
pending or, to t_he best of Seller's knowledge, threatened agalnst
the Property or Seller or affecting Seller's interest in, manage-
ment of, or other activities with respect to, the Property,
except that litigation titled Abrahams, et al. v. The City of
Aspen, et al., Civil Action No. 90 CV 121, currently pending in
the District Court in and for Pitkin County, Colorado. Purchaser
acknowledges that it is also a par~y to said litigation, that it
is fully aware of all issues involved therein, and that it will
accept and take title to the Property subject to such litigation.
(d) Envlrorkmental Mat~ers. To the best of the Sel-
ler's knowledge, the Property, including related soils, water and
groundwater, is not contaminated by and has never been used for
the generation, treatment, storage or disposal of any hazardous
substance or enviroru~ental pollutant(s).
(e) No Notice of Violation. Seller has no knowledge
of and has received no notice, other than oral notice from the
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City of Aspen, of any pollution, health, safety, fire, environ-
mental, sewerage or material building code violation with respect
to the Property or any portion thereof which has not been cured,
and has furnished to Purchaser copies of any such notices and
evidences of any such cure.
(f) ~o Conflict. The execution and delivery cf this
contract and the documents required hereunder, and the consu~una-
tion 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 Seller or the Property;
(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 Seller is a party, or by which it is or any portion of the
Property may be bound or affected; (3) permit any party to
terminate any such agreement or instrument or to accelerate the
maturity of any indebtedness or other obligation of Seller,
excepting that deed of trust identified in paragraph 2(c) (i)
above; or (4) result in any lien, charge or encumbrance of any
nature on the Property other than as permitted by this contract.
(g) True and Correct Information. To the best of
Seller's knowledge, no document, certificate or written statement
furnished to Purchaser and its agents by or on behalf of Seller
in connection with this transaction contains or will contain any
untrue statement of a material fact or omits or will omit to
state any material fact necessary in order to make the statements
contained therein not misleading. Additionally, Seller has dis-
closed all encumbrances and/or defects in title not shown by the
public record and all title documents of which Seller has actual
k~owledge.
(h) Use of Property Pendin= Closin=. Between the date
of this contract and the closing date, Seller:
(i) Shall maintain the property in its current
condition, normal wear and tear excepted;
(ii) Shall conduct all operations affecting the
Proper~y in the ordinary course of business, and in the manner
that the operation(s) have been conducted to date; and
(iii) Shall not permit the Property to be used or
operated in any manner that would be in violation cf any local,
s~ate or federal law or regulation.
(i) No Other Contracts. There are no other contracts
or agreements, oral or written, which affect the Property which
5
will survive closing except as disclosed in the title insurance
policy as provided Purchaser pursuant to paragraph 3 above.
7. INSPECTION. Seller hereby extends to Purchaser and/or
its agents or representatives the right to full and free access
to the Property upon reasonable notice to Seller during reason-
able hours to make investigation and inspection of the premises.
Purchaser's completion of any such investigation or inspection
shall not constitute a waiver by Purchaser of any of Seller's
representations or warranties contained in this contract. Pur-
chaser agrees to inde~mnify, defend and hold Seller harnless
against any mechanic's liens or other claims or demands that may
be asserted by Purchaser's agents as a result of Purchaser's
inspection of the Property, and Purchaser agrees to indemnify
Seller in the event of injury or damage to the Property proxi-
mately caused by Purchaser's inspection. If written notice of
any unsatisfactory condition, signed by Purchaser, is not re-
ceived by Seller on or before December 13, 1991, the physical
condition of the Property, improvements, structures and fixtures
shall be deemed satisfactory to Purchaser. If written notice of
an unsatisfactory condition is given to Seller as provided
herein, and if the parties have not reached a written agreement
in settlement thereof on or before closing, then this contract
shall terminate. Seller makes no warranty of the habitability of
the existing premises. As used herein, "unsatIsfactory condi-
tion'' shall mean and be limited to a public nuisance.
8. DATE OF CLOSING. The date of closing shall be December
13, 1991, at a mutually agreeable hour and place, or at such
later date as agreed to by the parties.
9. DELIV=~Y OF TITLE. Subject to tender or payment on
closing as required herein and complmance by Purchaser with the
other terms and provisions hereof, Seller shall execute and
deliver a good and sufficient general warranty deed at closing
conveying fee simple title to t_he Property to Purchaser and
conveying the Property free and clear of all taxes except general
proper~:y taxes for the year of closing; and free and clear of all
liens for special improvements installed as of the date of
Purchaser's signature hereon, whether assessed or not; and free
and clear of all liens and encumbrances except those disclosed by
the title comnitment end accepted by Purchaser pursuant to
paragraph 4. above. At closing, Seller agrees to pay all costs
and premiums for, and deliver to Purchaser, a fully-executed
title insurance policy consistent with the title insurance
commitment referenced in paragraph 3 and the terms and conditions
of paragraph 4 of t_he contract. Mineral and water rights as
purchased pursuant to this contract shall be conveyed by separate
quit clai~ deed at closing.
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10. PAYMENT OF ~NCUMBRANCES. Any encumbrance upon the
Property required to be paid shall be p~id at the time of settle-
ment from the proceeds of this transaction or from any other
source.
11. ALLOCATION OF TAXES. General property taxes for the
year of closing, based on the most recent levy and the most
recant assessment, rents, water and sewer charges, owner's
association dues, and interest on encumbrances, if any, shall be
prorated to date of closing. Any sales, use and transfer taxes
that may accrue as a result of this transaction shall be paid by
Seller, except that Purchaser shall be solely responsible for the
payment of any and all real estate transfer taxes payable to the
City of Aspen arislng from this transaction.
CLOSING COSTS, DOCUMENTS AND SERVICES.
(a) Purchaser and Seller shall pay their respective
closing costs at closing, except as otherwise provided herein.
(b) Purchaser and Seller shall sign and complete all
customary or required documents at or before closing.
(c) Fees for real estate closing and settlement
services shall not exceed $500.00 and shall be shared equally at
closing by Purchaser and Seller.
(d) Seller, at its sole expense, shall deliver to
Purchaser a current certificate of taxes due covering the Proper-
ty and a statement of personal proper~:y taxes due, both prepared
by the Pitkin County Treasurer.
13. OTHER DOCUMENTS. Seller shall deliver to Purchaser the
following other documents five (5) days prior to closing.
(a) Any appraisals of value undertaken within eighteen
(18) months of the date of this contract for the Property whlch
Seller may have;
(b) A copy of any current lease for any ground space
or existing building or structUre situated on the Proper~y.
14. POSSESSION. Except as provided for below, possession
of the Property shall be delivered to Purchaser on the date of
closing. If Seller, after closing, fails to deliver possession
on the date herein specified, Seller shall be subject to eviction
and shall be additionally liable to Purchaser for payment of
$100.00 per day as liquidated damages from the date of agreed
possession until possession is delivered.
7
Purchaser acknowledges that three (3) units of one
multi-family structure on the Property are currently occupied as
residential premises and may remain so after closing. Seller
hereby represents that such occupants are currently tenants at-
will and occupy the Property absent a lease of any kind. Pur-
chaser agrees to accept possession of the Property subject to the
at-will tenancies as described in this paragraph. However,
nothing contained herein vests or is intended to vest rights in
any party not a signator to this contract to continued occupancy
of the Property after closing absent a properly executed written
agreement between Purchaser and such party. Seller agrees to
provide Purchaser at closing notarized waivers from all occupants
of the Property acknowledging that they are tenants at-will.
15. CONDITIONS OF A~D DAMAGE TO PROPERTY. The Property,
improvements, structures and fixtures thereon shall be conveyed
in their present condition, ordinary wear and tear excepted. In
the event the Property shall be damaged by fire or other casualty
prior to time of closing, Purchaser shall be entitled to credit
for all insurance proceeds resulting from such damage to the
Property, its improvements, structures and fixtures, not exceed-
ing, however, the total purchase price.
16. TIME OF ESSENCE/DEFAULT/REMEDIES. Time is of the
essence hereof. If any note or check received as earnest money
hereunder or any other payment due hereunder is not 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) IF PURCKASER IS IN DEFAULT, then all payments and
th~ngs of value required hereunder, including earnest money
payments, shall be forfeited by Purchaser and retained by Seller
and both parties shall thereafter be released from all obllga-
tions under this contract. It is agreed that such payments and
things of value are LIQUIDATED DAMAGES and are SELLER'S SOLE A_ND
ONLY REd,nY for Purchaser's failure to perform hereunder. Seller
specifically waives the remedies of specific performance and
additional damages.
(b) IF SELLER IS IN DEFAULT, t-hen Purchaser may elect
to treat this contract as canceled in which case all payments and
things of value received by Seller hereunder, excepting the
earnest money payment specified in paragraph 2(a) above, shall be
returned to Purchaser and Purchaser may recover such damages as
may be proper, or Purchaser may elect to treat this contract as
being in full force and effect and Purchaser shall have the rlght
to SPECIFIC PEP3ORMANCE OR DAMAGES, or both.
(c) Anything to the contrary herein notwithstandlng,
in the event of any litigation arising out of this contract, the
court may award to the prevailing party its reasonable costs and
expenses, including attorney's fees.
17. INDFMI~IFICATION. Seller hereby agrees to indemnify,
defend, and hold harmless Purchaser against any and all claims,
demands, losses, expenses, obligations, liabilities, damages and
deficiencies, including without limitation interest, penalties
and reasonable attorney's fees, that Purchaser shall incur or
suffer arising, resulting from, or relating to any material
breach of, or material failure by Seller to perform any of its
representations, warranties and covenants under this contract.
18. DESIGN AND CONSTRUCTION PLANS. Seller agrees to convey
to Purchaser at or before time of closing, and as additional
consideration for the promises and agreements contained here~n,
all design and construction plans in its possession and which it
owns for the development of the Property. Such design and
construction plans shall be free of any and all liens or encum-
brances and shall become the sole property of Purchaser.
Purchaser acknowledges that Seller has provided it a
copy of the Subsoil Study for Foundation Design for the Property
dated September 25, 1989, prepared by Chen-Northern, Inc.
19. AGENCY DISCLOSURE. The listing broker, stifling Homes,
Inc. and its sales agents ("Listlng Company") represent Seller.
The Listing Company owes duties of trust, loyalty and confidence
to Seller only. While the Listing Company has a duty to treat
Purchaser honestly, the Listing Company is the Seller's agent and
is acting on behalf of Seller and not Purchaser. BY SIGNING
BELOW, PURCHASER ACF~NOWLEDGES PRIOR TIMELY NOTICE BY LISTING OR
SELLING COMmA_NY THAT LISTING COMPANY IS SELLER'S AGENT.
20. REAL ESTATE COM1ZISSION. Seller represents the Property
is currently listed for sale with a real estate broker. Seller
warrants Seller shall be solely responsible for any real estate
sales commission due and owing as result of the closing of the
contract. Further, Seller indemnifies and holds harmless Pur-
chaser from payment of any real estate sales commission.
21. FOREIGN PERSON TRANSFEROR. Seller warrants it is not
subject to wit_b_holding pursuant to I.R.C. Section 1445 and will
execute an affidavit to that effect at or before closing.
22. SPECIA?. DISTRICTS. The Property is located in the
following special districts with their present mill levies for
each district:
9
(i) Aspen Fire Protection District 1.207
(ii) Aspen Consolidated Sanitation
District .967
(iii) Colorado Mountain College 4.808
(iv) Aspen Hospital District .596
(v) A/~bulance District .396
(vi) colorado River Water Conservancy .429
(vii) Housing G.O. Bonds .306
(viii) Aspen School District 12.367
(ix) Aspen School Bonds 2.949
Purchaser acknowledges it is informed that a Colorado special
district may impose future property taxes without limit to retire
its general obligation debts regardless of the current level of
taxation and that Colorado Senate Bill 91-159 may give Purchaser
a right to rescind this contact in the absence of this acknowl-
edgment. Further, Purchaser acknowledges it is informed that the
property is located within the Ute Avenue Improvement District
created by the City of Aspen in City of Aspen Resolution No. 39,
Series of 1991, and the City of Aspen is currently considering
enacting Ordinance No. 42, Series of 1991, creating such district
and ordering construction and installation ~herein of certain
local improvements. The City of Aspen may impose assessments on
the property for +_he purposes set forth in such Resolution and
such Ordinance.
23. SURVIVAL OF COVENANTS, REPRESENTATIONS AND WAP~RA~TIBS.
The covenants, representations, warranties and indemnities made
by the parties %o this contract, and t. he obligations and agree-
ments to be performed or complied with by the respective parties
hereunder on or before the closing date, shall be deemed to be
perpetual in nature and shall survive the closing.
24. ENTIRE AGRE~2(ENT. This contract constitutes the entire
agreement between the parties hereto and supersedes all prior and
contemporaneous agreements, representations and understandings of
t_he parties regarding the subject matter of this contract. No
supplement, modification or amendnent of the contract shall be
binding unlesm executed in writing by the par~ies hereto.
25. COUNTERPARTS. This contract may be executed in one or
more counterparts, each of which shall be dee~ed an original, but
ell of which together shall constitute one and the same instru-
ment.
26. BINDING EFFECT/ASSIGNMENT. This contract shall be
binding upon and shall inure to the benefit of the parties hereto
and t_helr respective heirs, successors and assigns. Purchaser
may, in its sole discretion, and without the prior consent of
10
Seller, assign all of Purchaser's rights hereunder to, or cause
title to the Property to be taken in the name of a non-profit
nominee selected by Purchaser, provided, however, that Purchaser
shall guarantee to Seller all obligations under this contract of
such non-profit nominee.
27. RECOM~INDATION OF L~GAL COUnSeL. By signing this
document, Purchaser and Seller acknowledge the advisability of
obtaining the advice of independent legal counsel regarding
examination of title documents and the te~-ms of this contract.
28. GOVERNING LAW. This contract shall be governed by and
be construed in accordance with the laws of the State of colorado
and the parties hereby consent to the exclusive Jurisdiction of
the Colorado state courts in the event of any controversy or suit
arising hereunder.
29. S~VERABILITY. If any provision of this contract is
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions of this contract
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
30. ~OTICE$. Ail notices and other co~mun~cations tendered
in connection with this contact shall be in w~iting and shall be
deemed to have been duly given when delivered in person or by
telefex, or on the third day after mailing, if mailed registered
or certified mail, postage prepaid and properly addressed as
follows:
To Purchaser at: Office of the City Manager
130 South Galena Street
A~pen, Colorado @1211
Phone: (303) 920-5199
Fax: (303) 920-5197
Copy to City Attorney: City Attorney's office
130 South Galena Street
Aspen, Colorado 81611
Phone: (303) 920-5055
Fa~: (303) 920-5197
To Seller at: Nelson/Devore Partnership Drawer 5400
Avon, Colorado 81620
Copy to: Krabacher, Kill & Edwards
201 North Mill Street
Aspen, Colorado ~16~1
31. RECEIPT OF ACCEPTANCe/BINDING CONTRACT. If this offer
is accepted by Seller in writing, and Purchaser receives an
executed counterpart hereof on or before 5:00 p.m. on November
29th, 1991, this instrunent shall become and be deemed a binding
contract between Purchaser and Seller, subject to the conditions
set forth herein.
PURCHASER:
CITY O/E-~SPEN
City Manager C w+~r~k ,J~9/~,) Date
[TO BE COMPLETED BY SELLER]
32. ACC~PTANC~/COFIMI$$ION. Seller hereby accepts this
contract this /9 ~ day of /J~=~ , 1991. Seller agrees
to pay any and all real estate broker/brokerage firm fees,
commissions or costs, of any kind whatsoever, arising from the
execution of this contract.
NELSON/DEVORE PARTNERSHIP
A Colorado general partnership
Karfnjc De. re Da
Title: G~neral Partner
jcll21.1
12
'eet
DATE: December 4, 1991
TO: Mayor and City Council
FROM: Jed Caswall, City AttorneyT~
P~E: Nelson/DeVote Land Purchase
On your agenda for December 9, 1991, are two items pertinent to
the Nelson/DeVore land purchase. First is a proposed resolution
(on the consent agenda) ratifying the Contract To Buy and Sell
Real Estate dated November 29, 1991, and executed on behalf of
the City by Dallas Everhart on that day in his capacity as Acting
City Manager. The contract has also been executed on behalf of
the seller, Nelson/DeVore Partnership, and the earnest money
check has been delivered in accordance with the contract's terms.
(A copy of the executed contract is attached to the proposed
resolution.)
The second item on your agenda is a proposed ordinance (actually,
two alternative ordinances) for first reading authorizing the
execution of a promissory note for the purchase. As discussed
with you earlier, Section 10.8 of the City Charter allows the
City to enter into long-term installment contracts for the
purchase of necessary land, buildings, etc., for goverru~ent or
proprietary purposes. However, any such installment contract
shall be approved by ordinance duly enacted by the Council.
I have prepared two alternative ordinances so as to allow you the
option of passing the ordinance ss an emergency measure that
would accommodate final passage prior to the proposed closing
date for the land purchase. However, you will need to call a
special meeting to be held prior to the 13th if you wish to
proceed along this route (see Alterntaive ~l). The alternative
ordinance (see Alternative #2) is also an emergency ordinance,
but it provides for final passage at your next regular meeting on
the 16th (three days after the proposed closing).
Section 4.11 of the City Charter authorizes the adoption of an
ordinance as an emergency measure for the preservation of public
property, health, peace or safety. E~ergency ordinances may only
Memorandum to Mayor and City Council
December 4, 1991
Page 2
be approved by the unanimous vote of those council members
present and voting, or a vote of four council members, whichever
is less. The facts showing the need for an emergency ordinance
are to be stated in the ordinance itself. An emergency ordinance
requires passage at two meetings of Council, however, neither a
public hearing nor prior publication is required. Emergency
ordinances take effect immediately upon final passage.
As of the date of this memo, the proposed promissory note pro-
vides as follows:
1. Principal amount $750,000.00.
2. Interest rate of 8.5% per annum.
3. Interest only payments of $5,312.50 commencing January
13, 1992.
4. Due date of December 13, 1994.
5. No prepayment penalty.
6. Default interest rate of 15% per annuun.
The City will also be executing a deed of trust that will secure
the payment of the note to Mr. Billings.
REOU~STED ACTION: Approve on introduction and first reading
Ordinance No. (Series of 1991) authorizing the City's
execution of the B--~llings promissory note.
EMC/mc
Attackment
cc: City Manager
Finance Director