HomeMy WebLinkAboutresolution.council.019-94
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RESOLUTION NO. /~
(Series of 1994)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AUTHORIZING THE SALE AND CONVEYANCE OF CERTAIN REAL PROPERTY
COMMONLY REFERRED TO AS THE KRAUT PROPERTY TO THE ASPEN/PITKIN
COUNTY HOUSING AUTHORITY FOR THE DEVELOPMENT OF AFFORDABLE HOUS-
ING.
WHEREAS, the City Council did approve Resolution No. 55
(Series of 1990) authorizing the purchase of that certain parcel
of real estate commonly referred to as the Kraut property ("Pro-
perty") to be developed for affordable housing; and
WHEREAS, the city of Aspen did purchase the Property from
Elaine M. Kraut, on January 7, 1991, evidenced by that certain
General Warranty Deed recorded in the Pitkin County Clerk and
Recorder's office, Book 637, Page 192; and
WHEREAS, the city Council desires to transfer title to said
Property to the Aspen/Pitkin County Housing Authority in order to
facilitate the acquisition, development and resale or rental of
the Property for affordable housing.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
section 1
That the real estate property commonly referred to as the
Kraut Property acquired by the city of Aspen for the development
of affordable housing is not in current use for a public purpose.
section 2
That the contract to Buy and Sell Real Estate and Develop-
ment Agreement which is attached hereto and incorporated herein
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by this reference, is hereby approved by the Aspen City Council
and the city Manager is authorized to execute same on.behalf of
the City of Aspen. The City Manager is further authorized to
execute a General Warranty Deed and any other documents necessary
to facilitate the transfer of the Kraut property as contemplated
herein.
RESOLVED, APPROVED AND
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ADOPTED this
~7 day of
, 1994, by the City Council for the city of
Aspen, Colorado.
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8. Bennett, Mayor
John
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
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of Aspen,
Colorado, at a meeting held
, 1994.
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PITKIN COUNTY CLERK & RECORDER
GENERAL WARRANTY DEED
CITY OF ASPEN, a Colorado Municipal Corporation, as Grantor,
for Ten Dollars ($10.00) and other good and valuable consideration,
in hand paid, hereby sells and conveys to ASPEN/PITKIN COUNTY
HOUSING AUTHORITY, a multi-jurisdictional housing authority, as
Grantee, whose address is 530 E. Main Street, Aspen, Colorado
81611, the following real property in the County of Pitkin, State
of Colorado; to wit:
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Lots 1 and 2, KRAUT LOT SPLIT, according to
the Plat thereof filed March 20, 1990, in Plat
Book 24 at Page 5
formerly known as Lots E, F, G, H and I, Block
105, City and Townsite of Aspen
with all its appurtenances and warrants title to the same SUBJECT
TO AND EXCEPTING:
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1. Taxes for the year 1994 due and payable in 1995 and all
subsequent years not yet due or payable.
2. Unpatented mining claims; reservations or exceptions in
patents or in Acts authorizing the issuance thereof; water rights,
claims or title to water.
3. Any mine of gold, silver, cinnabar or copper, or any
valid mining claim or possession held under existing laws, as
reserved by M.G. Miller, County and Probate Judge of Pitkin County,
Colorado, in the Deed to L.M, Bailey recorded December 10, 1887, in
Book 59 at Page 150 and in deed to D.M. Van Haverbough recorded
January 28, 1889, in Book 59 at Page 540.
4. Easement and right of way to excavate for, construct,
install, maintain, inspect, repair, replace, operate and remove
electrical and communication equipment, as granted by District
Court in and for the County of Pitkin to City of Aspen by
instrument recorded February 1, 1977, in Book 324 at Page 165 and
re-recorded October 26, 1976, in Book 318 at Page 510.
5. Curb, Gutter and Sidewalk Improvements Agreement between
Michael Luzich and Elaine Kraut recorded March 20, 1990, in Book
616 at Page 574.
6. Statement of Exemption from Subdivision between Michael
Luzich and Elaine Kraut recorded March 20, 1990, in Book 616 at
Page 576.
7. Ordinance No. 10, Series of 1990 by the City of Aspen
recorded August 21, 1990, in Book 627 at Page 827.
~e.. 8. Electric Transformer Easement
, said Subdivision.
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as shown on the Plat of
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9. Any and all leases and tenancies including but not
limi ted to existing parking leases between Sy Kelly (Double K.
Parking) and Elaine Kraut a/k/a Elaine M. Kraut as evidenced in
Deed to City of Aspen recorded January 7, 1991, in Book 637 at Page
192.
10. Terms and conditions of Ordinance No. 65 (Series of 1993)
of the City of Aspen, Colorado.
Signed this 19""-day of ~, 1994.
City of Aspen, Colorado
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Johtl Bennett, Mayor
Attest:
STATE OF COLORADO
ss.
County of Pitkin
T~OregOing ~efal Warranty Deed was acknmdedged before me
this ( day of~, 1994 by John Bennett, Mayor of the City of
Aspen, Colorado and Kathryn Koch, Clerk of the City of Aspen.
Witness my hand and official seal.
My commission expires:
My Commission expires 9/27196
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Approved as to form:
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John Worcester
Aspen City Attorney
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CONTRACT TO BUY AND SELL REAL ESTATE
AND DEVELOPMENT AGREEMENT
March 28, 1994
1. PARTIES AND PROPERTY. The City of Aspen, a municipal
corporation (hereinafter "city" or "Seller"), agrees to sell, and
the Aspen/Pitkin County Housing Authority, a multi-jurisdictional
housing authority pursuant to Colorado law (hereinafter "Authori-
ty" or "purchaser"), agrees to buy, on the terms and conditions
set forth below, the following described real estate in the
County of pitkin, State of Colorado, to wit:
Lots 1 and 2, KRAUT LOT SPLIT, according to the Plat thereof
filed March 20, 1990, in Plat Book 24, Page 5
together with all interest of Seller in vacated streets and
alleys adjacent thereto, all easements and rights of way appur-
tenant thereto, all physical improvements thereon, and all
attached fixtures thereon, if any, hereinafter referred to as
"the Property").
2. PURCHASE PRICE AND TERMS. The purchase price shall be
$10.00, payable in U.S. dollars by Purchaser in cash, certified
funds, or electronic transfer of funds at closing.
3. EVIDENCE OF TITLE. Seller shall furnish to Purchaser,
at Seller's sole cost and expense, a current ALTA commitment for
title insurance on the Property, from a title company acceptable
to Purchase, with all standard exceptions deleted, together with
copies of all instruments listed in the schedule of exceptions of
said title insurance commitment, within seven (7) days following
acceptance of this Contract. The title insurance commitment,
together with any copies of instruments furnished pursuant to
this paragraph 3, shall constitute the title documents.
4. MERCHANTABLE TITLE AND CURE OF DEFECTS. Title shall be
merchantable in Seller. If title is not merchantable, in Pur-
chaser's sole and absolute discretion, and written notice of
defect(s) is given by Purchaser or Purchaser's agent to Seller or
Seller's agent on or before date of closing, Seller shall use
reasonable efforts to correct said defect(s) prior to date of
closing. If Seller is unable to correct said defect(s) on or
before date of closing, at Purchaser's option and upon written
notice to Seller or Seller's agent on or before date of closing,
the date of closing shall be extended thirty (30) days for the
purpose of correcting said defect(s). Except as sated in para-
graph 10 below, if title is not rendered merchantable,Jn Pur-
chaser's sole discretion, then at Purchaser's option, this Con-
tract shall be null and void and of no effect, and each party
hereto shall be released from all obligations hereunder, and all
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payments and things of value received hereunder shall be returned
forthwith to Purchaser.
5. ADDITIONAL DOCUMENTS TO BE DELIVERED BY SELLER TO
PURCHASER PRIOR TO CLOSING.
(A) Within seven (7) days following acceptance of this
Contract, Seller, at its sole cost and expense, shall deliver to
Purchaser the following items relating to the Property.
(1) certificate and Statement of Taxes Due. A
current certificate of taxes due covering the Property and a
statement of personal property taxes due, both prepared by the
Treasurer of the county in which the Property is located.
6. COVENANTS. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby covenants, represents and warrants to Purchaser the
following, all of which shall be true, accurate and complete as
of the date hereof and shall survive the closing:
(A) Status and Authoritv. 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 obliga'tion of any
nature whatsoever, contingent or otherwise, that is, or could
become, a lien or other encumbrance against the Property; and
Seller shall not engage in any action with respect to the Proper-
ty between the date of execution of this Contract and the closing
date that could give rise to a lien or claim against the Proper-
ty.
(C) Litiqation. No action, suit or proceeding is
pending, or, to the best of Seller's knowledge, threatened
against the Property or Seller, or affecting Seller's interests
in, management of, or other activities with respect to, the
Property. Seller is not in default of any order of any court,
arbitrator or governmental body respecting the subject Property.
(D) Compliance with Zoninq and Land Use Requlations.
The Property is currently being operated in compliance with all
zoning and land use regulations pertaining thereto.
(E) Environmental Matters. 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,
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the generation, transportation, treatment, storage or disposal
of, any hazardous substance or environmental pollutant(s).
(F) No Notice of violation. Seller has no knowledge
of and has received no notice of any pollution, health, safety,
fire, environmental, 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.
(G) No Conflict. The execution and delivery of this
Contract, and the documents required hereunder, and the consumma-
tion of the transactions contemplated herein will not (1) con-
flict 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 or any instrument to
which Seller is a party, or by which it or any portion of the
Property may be bound or affected; (3) permit any party to termi-
nate any such agreement or instrument or to accelerate the
maturity of any indebtedness or other obligation of Seller; or
(4) result in any lien, charge or encumbrance of any nature on
the Property other than as permitted by this Contract.
(H) True and Correct Information. No document,
certificate or written statement furnished to Purchaser and its
agents by or on behalf of Seller in connection with the transac-
tions contemplated herein 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 sta'tements contained
therein not misleading.
(I) Use of Propertv Pendinq Closinq. Between the date
of this Contract and the closing date, Seller:
(1) Shall not dispose of any interest in the
Property, and shall not mortgage, pledge or subject to lien or
other encumbrance any interest in the Property.
(2) Shall keep the Property adequately insured
against all hazards;
(3) Shall maintain the Property in its current
condition, wear and tear excepted;
(4) Shall conduct all operations affecting the
Property in the ordinary course of business, and in th~ manner
that the operation(s) have been conducted to date; and'
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(5) Shall not permit the Property to be used or
operated in any manner that would be in violation of any local,
state, or federal law or regulation.
(J) No other Contracts. There are no other contract
or agreements, oral or written, which affect the Property which
will survive closing.
7. CONDITIONS PRECEDENT TO PURCHASER'S PERFORMANCE.
purchaser's obligation to purchase the property pursuant to the
terms of this Contract is expressly made contingent upon and
subject to the following conditions precedent:
(A) Ratification by Aspen city Council. In order to
be binding on the city, this Contract must be ratified by the
Aspen city Council. Ratification shall be in the form of reso-
lution approving and accepting the Contract which passes by a
majority vote. If ratification has not occurred on or before
July 30,1994, this Contract shall be null and void.
(B) Riqht to Inspect/Due Diliqence Period/Continqency
Period. Purchaser's performance hereunder shall be expressly
contingent upon and subject to Purchaser's right to make a
thorough inspection of the Property, as well as of all matters
raised and documents tendered in connection with this Contract,
during a due diligence and contingency period of fifteen (15)
days fOllowing the date on which the Aspen City Council ratifies
this Contract as provided in 7(A), above. Therefore, in order to
permit purchas'er to make such inspection, and otherwise perform
its due diligence, Seller hereby extends to Purchaser and/or its
agents or representatives the right to full and free access to
the property during reasonable hours throughout said fifteen (15)
day due diligence and contingency period. Purchaser's completion
of any such inspection shall not constitute a waiver by Purchaser
of any of Seller's representations or warranties contained
herein. Purchaser agrees to indemnify, defend, and hold Seller
harmless against any mechanics' liens or other claims or demands
that may be asserted as a result of its physical inspection(s) of
the Property.
(C) No Material Adverse Chanqe. Between the date of
this Contract and the closing date, there shall have been no
material adverse change in the Property.
(D) Absolute Riqht to Terminate. At any time within
the above-described fifteen (15) day due diligence and contingen-
cy period, Purchaser may elect, in its sole and absolute discre-
tion, to terminate this Contract for any reason, by nQtjfying
Seller or Seller's agent in writing of its decision to,so termi-
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nate. In the event that Purchaser elects to terminate this
Contract pursuant to the terms of this paragraph" then all
earnest money payments and things of value paid hereunder shall
be returned forthwith to Purchaser.
8. DATE OF CLOSING. The date of closing shall be fifteen
(15) days following the expiration of the diligence period
described in 7(B), above, or by mutual agreement at an earlier
date. The hour and place of closing shall be as designated by
Purchaser.
9. DELIVERY OF TITLE. Subject to payment at closing as
required herein and compliance with the other terms and provi-
sions hereof, Seller shall execute and deliver a good and suffi-
cient general warranty deed conveying fee simple title to the
property to Purchaser at closing, conveying the Property free and
clear of all taxes except general property taxes for the year of
closing; 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 commitment which do not, in
Purchaser's sole discretion, render title unmerchantable.
10. PAYMENT OF ENCUMBRANCES. Any encumbrance upon the
Property required to be paid may be paid at the time of settle-
ment from the proceeds of this transaction or from any other
source. Provided, however, at the option of either party, that
if the total indebtedness secured by liens on the Property
exceeds the purchase price, this Contract shall be null and void
and of no effect and each party thereto shall be released from
all obligations hereunder and all payments and things of value
received hereunder shall be returned forthwith to Purchaser.
11. ALLOCATION OF TAXES. General property taxes for the
year of closing, based on the most recent levy and the most
recent 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.
12. CLOSING COSTS. DOCUMENTS AND SERVICES. Purchaser and
Seller shall pay their respective closing costs at closing,
except as otherwise provided herein. Purchaser and Seller shall
sign and complete all customary or required documents at or
before closing.
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13. POSSESSION. Possession of the property shall be deliv-
ered to Purchaser on the date of closing subject to the following
lease(s) or tenancy(s): NONE.
14. DEVELOPMENT AGREEMENT. The parties hereto acknowledge
that the sale of the Property from the City to the Authority is
for the express purpose of facilitating the development and
possible resale or rental of the property for affordable housing.
In accordance with this purpose, the Authority agrees to commence
and diligently pursue the development of the Property consistent
with the direction and requisite approval process of the City
council of the city. The City reserves the right to require the
phased construction of the Kraut Affordable Housing Project to
accommodate a temporary city Market facility on the Property at
its sole discretion. The Authority shall keep the City Council
abreast of all construction timing and phasing issues relating to
the project so that the City Council can best decide how it
wishes to proceed with the construction phasing of the Kraut
project.
15. OPTION TO REPURCHASE. If the parties decide that the
Authority shall sell units within the project consistent with the
Authority's Housing Guidelines, the City shall have the irrevoca-
ble option to acquire so many of the units as the City may desire
at such time as the city shall determine, for a nominal sum, and
upon such other terms as may be required by the city.
If the parties decide that the Authority will retain
title to the property and enter into leases with tenants, the
Authority shall grant and convey to the City an unconditional and
irrevocable option to acquire or lease the Property at such time
as the city shall determine, for a nominal sum, and upon such
other terms as may be required by the city.
In acquiring the Property pursuant to this option, the
city shall take title subject to the terms of any land leases
which are in effect at the time the option is exercised and
subject to any mortgages or deeds of trust which have been
granted in connection with the financing of the cost of improve-
ments constructed thereon, and shall release and indemnify the
Authority from and against any and all further liability there-
for.
16. EVENT OF DEFAULT AND REMEDIES.
(A) Event of Default.
Time is of the essence hereof. The fo~lowing
shall be considered events of default:
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(1) Failure to provide any document or failure to
perform any other obligation hereunder within the time frames
specified herein.
(2) Failure of the City and Authority to agree
upon a "development program" for the Property, as contemplated
and described in section 15 above, within a reasonable time
following the date of this Agreement.
(3) Failure of the Authority to undertake or
diligently pursue the agreed-upon development program approved by
the City.
(4) If, after commencement of the development
program, there is any cessation of activity-ther~under for a
period in excess of thirty (30) days.
(5) Any material deviation from the development
program or marketing plan approved by the city.
(6) Any pledge, hypothecation, or grant of a
mortgage, deed of trust, or security interest in the Property
except to secure a loan for Project costs, without the advance
written consent of the city.
(7) If the City determines that the cost to
complete the development program will be in excess of the amount
budgeted for the project.
(B) Notice, Riqht to Cure. In the event that the city
believes that the Authority is in default with respect to the
performance of this Agreement, as defined above, the City shall
provide written notice of such default to the Authority. The
Authority shall have a period of fifteen (15) days to provide
evidence to the satisfaction of the city that the default has
been cured or will be cured within a reasonable amount of time.
If the city is satisfied that the default has been cured or will
be cured, this Agreement shall remain in full force and effect.
otherwise, the City shall have the remedies set forth below.
(C) Remedies. If any event of default shall occur and
shall not be cured, the City, at its sole option, may:
(1) In addition to any other remedies which the
city may have under this Agreement or by statute or by rule of
law, enter upon the Property and construct, equip and complete
any and all of the improvements contemplated in the development
program or such amendments thereto as the city may from_time to
time, and in its sole discretion, deem appropriate. The city
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shall have the right at any and all times to discontinue any work
commenced by it in respect to such improvements or to change any
course of action undertaken by it and shall not be bound by any
limitations or requirements of time whether set forth herein or
otherwise. The city shall have the right and power at its option
to assume any contract made by or on behalf of the Authority in
any way relating to the construction of said improvements and to
take over and sue all or any part or parts of the labor, materi-
als, supplies and equipment contracted for by or on behalf of the
Authority, including such equipment and supplies as have thereto-
fore been delivered to the Property or stored in any facility for
incorporation into the Property or said improvements, all in the
sole and absolute discretion of the city.
(2) In connection with the completion of the
development program, the City may: (a) engage builders, contrac-
tors, architects, engineers and others for the purpose of fur-
nishing labor, materials and equipment in connection with the
completion of the improvements contemplated in the development
program; (b) pay, settle or compromise all bills or claims which
may become liens against the Property or the improvements, or
both, or which have been or may be incurred in any manner in
connection with completion of the improvements or for the dis-
charge of liens, encumbrances, or defects in the title of the
Property and/or the improvements; (c) take such action as it may
determine to protect the Property or improvements and/or supplies
delivered for incorporation into the Property or improvements.
(D) Attorney-in-Fact. For the purpose in facilitating
enforcement of the remedies provided above, the Authority hereby
irrevocably constitutes and appoints the city its true and lawful
attorney-in-fact to execute, acknowledge and deliver any instru-
ments and to do and perform any acts relating to completion of
the development program for an on behalf of the Authority and in
its name and place. This power of attorney shall be deemed to be
a power coupled with an interest and is irrevocable. The city,
as such attorney-in-fact, shall also have the power to prosecute
and defend all actions or proceedings in connection with or
affecting the Property or the development of improvements there-
on.
(E) Remedies Cumulative. All powers and remedies
given by this section shall be cumulative and not exclusive of
one another or of any other right, remedy or of any other powers
available to the City by applicable law to enforce the perfor-
mance or observance of the covenants and agreements of the
Authority contained in this Agreement. No delay or omission of
the city to exercise any right, remedy or power arisin~ upon any
default shall impair any such right, remedy or power with respect
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to any other subsequent default. Every power, right and remedy
given to the City may be exercised from time to time as often as
may be deemed necessary by the city.
17. SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES.
The covenants, representations, warranties and indemnities made
by the parties to this Contract, and the obligations and agree-
ment 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.
18. ENTIRE AGREEMENT. This Contract constitutes the entire
agreement between the parties hereto, and supersedes all prior
and contemporaneous agreements, representations and understand-
ings of the parties regarding the subject matter of this Con-
tract. No supplement, modification or amendment of the Contract
shall be binding unless executed in writing by the parties
hereto.
19. COUNTERPARTS. This Contact may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instru-
ment.
20. BINDING EFFECT/ASSIGNMENT. This Contract shall be
binding upon and shall inure to the benefit of the parties
hereto, and their respective heirs, successors and assigns.
Purchaser may, in its sole discretion, and without the prior
consent of Seller, assign all of Purchaser's rights hereunder to,
or cause title to the Property to be taken in the name of a
nominee selected by Purchaser, inclUding, but not limited to, a
partnership or other entity formed for the purpose of owning the
Property of the Aspen/Pitkin County Housing Authority.
21. RECOMMENDATION OF LEGAL COUNSEL. By signing this docu-
ment, Purchaser and Seller acknowledge the advisability of
obtaining the advice of independent legal counsel regarding
examination of title documents and the terms of this Contract.
22. GOVERNING LAW. This Contract shall be governed by and
construed in accordance with the laws of the State of colorado,
and Purchaser hereby consents to the exclusive jurisdiction of
the Colorado state courts in the event of any controversy or suit
arising hereunder.
23. SEVERABILITY. 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 thi~~ontract
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shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
24. TERMINATION. In the event this Contract is terminated
for any reason, pursuant to the terms hereof,. all earnest money
payments and things of value paid hereunder shall be returned
forthwith to Purchaser. '
25. NOTICES. All notices and other communications tendered
in connection with this contract shall be in writing, and shall
be deemed to have been duly given when delivered in person or by
telefax, or on the third day after mailing, if mailed registered
or certified mail, postage prepaid and properly addressed as
follows:
To Purchaser:
Amy Margerum, City Manager
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Phone: (303) 920-5212
Fax: (303) 920-5119
To Seller:
Tom Baker, Director
Aspen/Pitkin County Housing Authority
530 East Main Street
Aspen, Colorado 81611
PURCHASER:
SELLER:
CITY OF ASPEN
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