Loading...
HomeMy WebLinkAboutresolution.council.047-95 "- \+...... ~< ..' (A \Wl' '~"." \j~ '. .- - RESOLUTION NO. 41-1- Series of 1995 A RESOLUTION OF TIlE CITY COUNCIL OF TIlE CITY OF ASPEN, COLORADO, APPROVING RESIDENTIAL CONTRACTS TO SELL CITY OWNED REAL PROPERTIES TO CITY EMPLOYEES SUBJECT TO CERTAIN OCCUPANCY AND RESALE DEED RESTRICTIONS FOR SAID PROPERTIES, AND AUTHORIZING tHE MAYOR TO EXECUTE SAID AGREEMENTS ON BEHALF OF TIlE CITY OF ASPEN, COLORADO. WHEREAS, the City of Aspen owns certain real properties situate in the Aspen Employee Housing No.1 Subdivision in the City of Aspen, Colorado; and WHEREAS, the City of Aspen, in furtherance of its policy of assisting its employees in securing affordable housing, has indicated its willingness to have the said real properties purchased by existing City employees subject to certain conditions and restrictions; and WHEREAS, Stephen Barwick, John Worcester, and Jack Reid, are employees of the City of Aspen and have indicated a desire to purchase said units from the City; and WHEREAS, the sale and purchase of said units shall be subject to certain occupancy and resale deed restrictions. NOW, TIlEREFORE, BE IT RESOLVED BY TIlE COUNCIL OF TIlE CITY OF ASPEN, COLORADO: Section 1. That the City Council of the City of Aspen hereby approves the sale of the following real property to Stephen H. and Amy Barwick, as joint tenants: Unit 1 McARTHUR CONDOMINIUMS 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 Declaration 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. - ,0_' ~. \ ~". Address: 705 Cemetery Lane Aspen, Colorado 81611 Section 2. That the City Council of the City of Aspen hereby approves the sale of the following real property to John P. and Patricia A. Worcester, as joint tenants: Unit 2 McARTHUR CONDOMINIUMS 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 Declaration 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: 707 Cemetery Lane Aspen, Colorado 81611' _ Section 3. That the City Council of the City of Aspen hereby approves the sale of the following real property to John H. and Deborah J. Reid, as joint tenants: Unit 2 CHAPMAN CONDOMINIUMS appearing in Book 15 at Pages 91-92 of the records of Pitkin County, Colorado, and as described and defmed in that Condominium Declaration for CHAPMAN CONDOMINIUMS appearing in such records at Book 393, Pages 663 through 673 and Plat Book 10 at Pages 33 through 35, being situate on Lot 2, Aspen Employee Housing No. 1 Subdivision, City of Aspen, Pitkin County, Colorado. Address: 717 Cemetery Lane Aspen, Colorado 81611 Section 4. "'e.' ~t i1~" That the City Council of the City of Aspen hereby approves the above sale of real properties upon terms substantially similar to those set forth in the "Residential Contract to Buy and Sell Real Estate" appended hereto as Exhibit "A" and incorporated herein as if fully set forth e Ie:.' ~ '" ~~ ., - -- here. Section 5. That the City Council of the City of Aspen approves the above sale of properties subject to deed restrictions substantially similar to those set forth in the "Occupancy and Resale Restriction, Agreement, and Covenant" appended hereto as Exhibit "B" and incorporated herein as if fully set forth here. the INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on PI day of a.ALI~ , 1995. ~!~- fohn S. 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 on the day hereinabove stated. dm~ 2.,J~ Kathry, . Koch, CIty Clerk cemetery.res ~' , i ~ i~. \'~- ' RESIDENTIAL CONTRACT TO BUY AND SELL REAL ESTATE THIS AGREEMENT, made this 15th day of August, 1995, by and between John P. and Patricia A. Worcester, Purchasers, and the CITY OF ASPEN, COLORADO, a Colorado home rule municipal corpora- tion, Seller. WIT N E SSE T H: WHEREAS, the Seller owns certain real property situate in the city of Aspen, Pitkin County, Colorado; and WHEREAS, John P. Worcester is an employee of the City of Aspen and he and his spouse desire to purchase said real property as joint tenants; and WHEREAS, Seller, in furtherance of its policy in assisting its employees in securing affordable housing, has indicated its willingness to have the said real property purchased by City employees subject to certain conditions and restrictions; ,@It NOW, THEREFORE, in consideration of the terms, conditions, restrictions and covenants cOntained herein and in that certain "Occupancy and Resale Deed Restriction, Agreement and Covenant" appended hereto as Exhibit "A", the parties hereto agree as follows: 1. Subject to the terms and conditions set forth in this Agreement and the deed restrictions set forth at Exhibit "A" appended hereto and incorporated here as if fully set forth, Seller agrees to convey to Purchasers the following described property: Unit 2 McARTHUR CONDOMINIUMS 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 Declaration 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 M~. 1 SUbdivision, city of Aspen, Pitkin County, Colorado. ,\. 'CS,_" together with all improvements thereon and all fixtures of a permanent nature currently on the premises except as hereinafter provided, in their present condition, ordinary wear and tear excepted, hereinafter called the Property. 1,.;. Ie " ,f.... :.-", c."..".' i,:~ \;,,- ! 2. The undersigned person(s) John P. and Patricia A. Worcester, as joint tenants hereby agree to buy the Property upon the terms and conditions stated herein. 3. The purchase price shall be u.s. $190,000.00 4. Price to include any of the following items currently on the Property: lighting, heating, plumbing, ventilating, and central air conditioning fixtures; attached TV antennas and/or water softener (if owned by Seller); all outdoor plants, window and porch shades, venetian blinds, storm windows, storm doors, screens, curtain rods, drapery rods, attached mirrors, linoleum, floor tile, awnings, fireplace screen and grate, built-in kitchen appliances, wall-to-wall carpeting, all in their present condi- tion, conveyed free and clear of all taxes, liens and encumbranc- es except as provided in paragraph 11. Personal property shall be conveyed by bill of sale. 5. If a new loan is to be obtained by Purchaser from a third party, Purchaser agrees to promptly and diligently (a) apply for such loan, (b) execute all documents and furnish all information and documents required by the lender, and (c) pay the customary costs of obtaining such loan. Then if such loan is not approved on or before December 31, 1995, or if so approved but' is not available at time of closing, this contract shall be null and void and all payments and things of value received hereunder shall be returned to Purchaser. 6. Purchaser agrees to apply for a loan and agrees to pay interest rate not to exceed 9% per annum. 7. If a note is to be made payable to Seller as partial or full payment of the purchase price, this contract shall not be assignable by Purchaser without written consent of Seller. 8. Cost of any appraisal for loan purposes to be obtained after this date shall be paid by Purchasers. 9. An abstract of title to the Property, certified to date, or a current commitment for title insurance policy in an amount equal to the purchase price, at Seller's option and expense, shall be furnished to Purchaser on or before October ~, 1995. If Seller elects to furnish said title insurance commit'- ment, Seller will deliver the title insurance policy to Purchaser after closing and pay the premium thereon. 2 ~,.". \ ~. '.! .~ If., 'Z\ 10. The date of closing shall be the date for delivery of deed as provided in Paragraph 11. The hour and place of closing shall be as designated by mutual consent of the parties. 11. At the closing, title to the Property shall be market- able in Seller. Subject to payment of the purchase price as provided in Paragraph 3 and compliance by Purchasers with all of the other terms and conditions to be complied with by Purchasers under this Agreement, Seller shall execute and deliver to Pur- chasers at the closing a good and sufficient General Warranty Deed conveying the Property free and clear of all liens and encumbrances, except recorded and/or apparent easements for telephone, cable, electricity, water, sanitary sewer, and subject to building and zoning regulations. The parties hereto further agree to execute at the time of conveyance and have recorded, at Purchaser's expense, an "Occupancy and Resale Deed, Restriction Agreement, and Covenant" for the property on a form identical to that appended hereto as Exhibit "A" and incorporated herein by this reference. 12. Except as stated in paragraphs 11 and 13, if title is not merchantable 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 effort 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 Seller's option and upon written notice to Purchaser or Purcha- ser's agent on or before date of closing, the date of closing shall be extended thirty days for the purpose of correcting said defect(s). Except as stated in paragraph 13, if title is not rendered merchantable as provided in this paragraph 12, at Pur- chaser's option, this contract shall be void and of no effect and each party hereto shall be released from all obligations hereun- der and all payments and things of value received thereunder shall be returned to Purchaser. 13. Any encumbrance required to be paid may be paid at the time of settlement from the proceeds of this transaction or from any other source. Provided, however, at the option of either party, if the total indebtedness secured by liens on the Property exceeds the purchase price, this contract shall be void and of! no effect and each party hereto shall be released from all obliga- tions hereunder and all payments and things of value received hereunder shall be returned to Purchaser. 14. The parties hereto acknowledge that the property is not subject to general taxes up to the date of closing. Purchasers shall be responsible for the payment of all property taxes and assessments levied following the date of closing. 3 '. .' f! \;, '\', :4. \. I'. \\~. j I 15. In the event the Property shall be damaged by fire or other casualty prior to time of closing, in an amount of not m~re than ten per cent of the total purchase price, Seller shall be obligated to repair the same before the date herein provided for delivery of deed. In the event such damage is not or cannot be repaid within said time or if the damages exceed such sum, this contract may be terminated at the option of Purchaser and all payments and things of value received hereunder shall be returned to Purchaser. Should Purchaser elect to carry out this contract despite such damage, Purchaser shall be entitled to all the credit for the insurance proceeds resulting from such damage, not exceeding, however, the total purchase price. Should any fix- tures or services fail between the date of this contract and the date of possession or the date of delivery of deed; whichever shall be earlier, then Seller shall be liable for the repair or replacement of such fixtures or services with a unit of similar size, age and quality, or an equivalent credit. 16. 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 as herein provided there shall be the following remedies: (a) IF SELLER IS IN DEFAULT, (1) Purchaser. may elect to treat this contract as terminated, in which case all payments and things of value received hereunder shall be returned to Purchaser and Purchaser may recover such damages as may be proper; or (2) Purchaser may elect to treat this contract as being in full force and effect and Purchaser shall have the right to an action for specific performanc~ or damages, or both. (b) IF PURCHASER IS IN DEFAULT, (1) Seller may elect to treat this contract as terminated, in which case all payments and things of value received hereunder shall be forfeited and retained on behalf of Seller and Seller may recover such damages as may be proper, or (2) Seller may elect to treat this contract as being in full force and effect and Seller shall have the right to an action for specific performance or damages, or both. (c) Anything to the contrary herein notwithstanding, in the event of any litigation arising out of this contract, the court may award to the prevailing party all reasonable costs and expense, including attorney's fees. 17. Seller represents and warrants to Purchasers that not a foreign person as defined in Section 1445(f) (3) of the is 4 x..... Il '" 'I f'i ~,; ~, ~.. I~ .,~ '- i" i Internal Revenue Code of 1954, as amended, and agrees to execute and deliver to Purchasers at closing an affidavit of such fact. 18. The terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the heirs, execU- tors, administrators, personal representatives, successors and assigns of the Seller and Purchasers; provided that the Purchas- ers may not assign or modify this Agreement without prior written consent of the Seller as contained herein. IN WITNESS WHEREOF, the parties have set their hands and seals on the date first set forth above. SELLER: CITY OF ASPEN, COLORADO By: ~ l;~ John '. Bennett, Mayor ATTEST: PURCHASERS: U //' , . ." " :;T;t5 / ---/'fA"/ // 1/,/',1, /~ John/P. "Worcester /~2t;~, q a~ 6-777;z Patricia A. Worcester 5 ct. CITY OF ASPEN OCCUPANCY AND RESALE DEED RESTRICTION, AGREEMENT, AND COVENANT THIS OCCUPANCY AND RESALE DEED RESTRICTION, AGREEMENT, AND COVENANT (the "Agreement") is made and imposed this day of , 1995, by John P. and Patricia A. Worcester ("owner"), for the benefit of and enforceable by the CITY OF ASPEN, a Colorado home rule city, for and in consideration of the conveyance of the subject property to Owner. WIT N E SSE T H: WHEREAS, Owner has purchased and owns as a result of that certain warranty deed executed on the date hereof, a 2,110 square foot dwelling ("Dwelling") located on the real property more specifically described in Exhibit "A" attached hereto and incor- porated herein. For purposes of this Agreement, the dwelling, the real property and all appurtenances, improvements and fix- tures associated therewith shall hereinafter be referred to as the "Property"; and t.. WHEREAS, Owner agrees to restrict the acquisition of the I'" Property to Aspen or its designees. In addition, the Owner \ agrees that this Agreement shall constitute a resale agreement setting forth the maximum sale price for which the Property may be sold ("Maximum Sale Price"), the amount of appreciation and the terms and provisions controlling the resale of the Property should Owner desire to sell the Property at any time after the date of this Agreement. NOW, THEREFORE, for value received as described above, the receipt and sufficiency of which is hereby acknowledged, Owner hereby represents, covenants and agrees as follows: 1. One of the parties constituting Owner is a full-time employee of the City of Aspen and in connection with the purchase of this Property, Owner agrees to sell the Property only in accordance with this Agreement. 2. It shall be a breach of this Agreement for Owner to default in payments or other obligations due under a promissory note secured by a first deed of trust. Owner hereby agrees to notify Aspen, in writing, of any notification it receives from a lender, or its assigns, of past due payments or default in payment or other obligations due under a promissory note secured by a first deed of trust within five calendar days of Own- er's notification from lender, or its assigns, of sa~d default or past due payments. ." !t\", \V "\ < I'" ; '.".... \~~ \;: Upon notification from Owner, Aspen may offer loan counseling and distressed loan services to Owner, if any of these services are available, and may require Owner to sell the Property to avoid the commencement of any foreclosure proceeding against the Property. In the event that Aspen determines that sale of the Prop- erty is necessary, Owner shall immediately execute a~d deliver a standard general warranty deed conveying the Property to Aspen, or its designee, in exchange for the payment to, or for the benefit of, Owner a purchase price computed under the formula set forth in this agreement. 3. This agreement shall constitute covenants running with the real property described in Exhibit "A", as a burden thereon for the benefit of, and shall be specificallY enforceable by, the Owner and Aspen, and their respe~- tive successors and assigns, as applicable, by any appropriate legal action including but not limited to injunction, reversion, or eviction of non-complying owners and/or occupants. 4. In the event that the Owner desires to sell the Proper- ty, Owner shall so advise Aspen in writing and Aspen, or its designee, shall purchase the Property from Owner not more than ninety (90) days from the date of receipt of such notice, at the purchase price established by this Agreement. ',.. \' RESALE PRICE 5. In the event that the Property is sold to Aspen or its designee pursuant to this Agreement, the Property shall be sold for an amount equal to the lesser of: a. The Owner's purchase price of $190,000.00 plus an increase of three percent (3%) of the purchase price per year from the date of purchase (prorated at the rate of .25% percent for each whole month for any part of a year); or b. An amount (based upon the Consumer Price Index, All Items, U.S. city Average, Urban Wage Earners and Clerical Workers (Revised), published by the U:S. Department of Labor, Bureau of Labor Statis- tics) calculated as follows: the Owner's purchase price multiplied by the Consumer Price Index last published prior to the date of Owner's notice of desire to sell divided by the Consumer Price Index ...'..!' In 1\< 2 _.-- i '.r..... ~- current at the date of this Agreement, (the par- ties agree that the Consumer Price Index for May 1995, is 152.2.), Plus the cost of Capital Improvements not exceeding ten percent (10%) of Owner's original purchase price as set forth below: Capital Improvements means capital improvements made and paid for by Owner pursuant to the requirements of any governmental body, agency or Homeowner's Association, or approved in writing by the city of Aspen through its city Manager or designee. capital Improvements shall be validated by production of original receipted for costs (actual cost) with no allocation for Owner's "sweat equity"; no capital Improvements shall be added to calculation without proof of receipts affidavit as to validity of receipts, and certifi- cate of Occupancy from the Aspen/Pitkin County Building Department. .'.. %i\_ Less the cost of any repairs or replacements necessary to restore the Property to a reasonably adequate level of repair and habitability. For purposes of this section, repairs and replacement required by ordinary wear and tear shall not be deducted from the sales price otherwise computed hereunder. Less an amount equal to 1.33% of the Owner's original purchase price of the Property multiplied by the number of years, or fractions thereof, from -the Owner's date of purchase of the Property to the date of sale her$un- der in order to fund Capital Replacements made in accordance with the City's Asset Management Plan. 6. All disputes between Owner and administrative staff of Aspen shall be decided by the city Manager of the city of Aspen, and any decision of the City Manager may be appealed to the Aspen City Council within ten (10) days of any decision by the City Manager. 7. Owner shall be responsible for the payment of the Owner's customary closing costs and prorations. 8. In the event that title to the Property vests by de~ scent in any individuals and/or entities other than Owner or Owner's surviving joint tenant who is the Aspen city employee, the surviving tenant-in-common who ,\....'... 0,;< 3 '.' ~ ~. 0.'...... \ *.....,... ~ ~, ,pi o. i is not an Aspen City employee, devisee, heir, or per, sonal representative, shall, within one hundred eighty (l80) days, execute and deliver a general warranty deed conveying the Property to Aspen or its designee, in exchange for the payment to or for the benefit of the grantor of a purchase price computed under the formula set forth in this Agreement. CITY OF ASPEN EMPLOYMENT AND REAL PROPERTY OWNERSHIP RESTRICTION 9. Owner agrees that, in the event Owner ceases to be a full-time employee of the City of Aspen, Owner will within not more than one hundred eighty (l80) days execute a general warranty deed conveying the Property to Aspen, or its designee, in exchange for the payment to, or for the benefit of, the Owner of a purchase price computed under the formula set forth in this Agreement. lO. If at any time the Owner of the Property also owns an interest in any other developed residential property or dwelling unit(s), Owner agrees to immediately list said other property or unit for sale at a sales price compa- rable to like units or properties in the area in which the property or dwelling unites) are located, until sold. In the event said other property or unit has not been sold by Owner within one hundred eighty (l80) days of its listing, then Owner will within not more than one hundred eighty (l80) days execute a general warran- ty deed conveying the Property to Aspen, or its desig- nee, in exchange for the payment to, or for the benefit of, the Owner of a purchase price computed under the formula set forth in this Agreement. BREACH ll. In the event that Aspen has reasonable cause to believe the Owner is violating the provisions of this Agree- ment, Aspen by its authorized representative, may inspect the Property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing the Owner with no less than 24 hours' prior written or oral notice. l2. Aspen, 'in the event a violation is discovered, shall send a notice of violation to the Owner detaili~\g the nature of the violation and allowing the Owner fifteen (l5) days to cure. Said notice shall state that the 4 --- , ", " I '. ''1'., 0\ f(~ \ Owner may request a hearing within fifteen (15) days to determine the merits of the allegations. REMEDIES 13. There is hereby reserved to the parties hereto any a~d all remedies provided by law for breach of this ,Agree- ment or any of its terms. In the event the parties resort to litigation with respect to any or all provi- sions of this Agreement, the prevailing party shall be entitled to recover damages and costs, including rea- sonable attorney's fees. 14. In the event the Property is sold and/or conveyed without compliance herewith, such sale and/or convey~ ance shall be wholly null and void and shall convey no title whatsoever upon the purported buyer. Each and every conveyance of the Property', for all purposes, shall be deemed to include and incorporate by this reference, the covenants herein contained, even without reference herein to this Agreement. '. ~~. 15. In the event that the Owner fails to cure any breach, Aspen may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement or a mandatory injunction requiring sale of the Property by Owner. The costs of such sale shall be taxed against the proceeds of the sale with the balance being paid to the Owner. 16. In the event of a breach of any of the terms or condi- tions contained herein by Owner, his heirs, successors or assigns, the original purchase price of the Property as set forth in Section 6(a) of this Agreement shall, upon the date of such breach, automatically cease to increase as set out in paragraph 6 of this Agreement" and shall remain fixed until the date of cure of said breach. GENERAL PROVISIONS ~. '. 17. Notices. Any notice, consent or approval which is required to be given hereunder shall be given by mail- ing the same, certified mail, return receipt request~d, properly addressed and with postage fully prepaid, to any address provided herein or to any subsequent mail- ing address of the party as long as prior written notice of the change of address has been given to th~ 5 ~ other parties to this Agreement. sents and approvals shall be sent at the following addresses unless writing: said notices, con- to the parties her~to otherwise notified in To Owner: John P. and Patricia A. Worcester 707 Cemetery Lane Aspen, Colorado 81611 To Aspen: city Manager 130 South Galena Street Aspen, Colorado 81611 18. Exhibits. All exhibits attached hereto, if any, are incorporated herein and by this reference made a part hereof. .. w t 19. Severability. Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such manner as to be valid under appli- cable law; but, if any provision of any of the forego- ing shall be invalid or prohibited under said applica- ble law, such provisions shall be ineffective to the extent of such invalidity or prohibition without inval- idating the remaining provisions of such document. 20. Choice of Law. This Agreement and each and every related document is to be governed and construed in accordance with the laws of the state of Colorado. 21. Successors. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and as- signs of the parties. 22. section Headinqs. Any paragraph or section heading within this Agreement is inserted solely for conve- nience of reference, and is not intended to, and shall not, govern, limit or aid in the construction of any terms or provisions contained herein. &.:" ' 0. ~, 23. Waiver. No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any party heretp except on the basis of a written instrument execu~:ed by the parties to this Agreement. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition. 6 (. '-- \~ "., t\ \~, 24. Gender and Number. Whenever the context so requires herein, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. 25. Personal Liabilitv. Owner agrees that he shall be personally liable for any of the transactions contem- plated herein. 26. Further Actions. The parties to this Agreement agree to execute such further documents and take such further actions as may be reasonably required to carry out the provisions and intent of this Agreement or any agree- ment or document relating hereto or entered into in connection herewith. 27. Modifications. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made by writings signed by both parties and recorded with the Clerk and Recorder of Pitkin County, Colorado. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year above first written. OWNER: " ) iif ' , -#;: .. . j-;(;, /7 t/4.c,.v<:. JOhn >P.' orcester ~ -7'--- , / 6..b~ Ipatricia a d1'u4.-ti;' A. Worcester STATE OF COLORADO ss. County of Pitkin The fOr~g instrument / 1-I--1tI , day 0 f fr'lAJ..A/v}luA ) ~ia A. Worcester. - was acknowledged before me this , 1995, by John P. and WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: .?,!d'/1.1Cf,1 ~1MA:/~ (!. {J~ j'lotavubl~c 1':304. &o~ j~~ r/IJ II Addresf:'(/' , 7 ""~-' IS' \:~:< RESIDENTIAL CONTRACT TO BUY AND SELL REAL ESTATE OYI\'~}~ :}~( )d- 6'1 THIS AGREEMENT, made this 15th day of August, 1995, by and between Stephen H. and Amy Barwick, Purchasers, and the CITY OF ASPEN, COLORADO, a Colorado home rule municipal corporation, Seller. WIT N E SSE T H: WHEREAS, the Seller owns certain real property situate in the City of Aspen, Pitkin County, Colorado; and WHEREAS, Stephen H. Barwick is an employee of the City of Aspen and he and his spouse desire to purchase said real property as joint tenants; and WHEREAS, Seller, in furtherance of its policy in assisting its employees in securing affordable housing, has indicated its willingness to have the said real property purchased by city employees subject to certain conditions and restrictions; <,','- w w 'lzt.. NOW, THEREFORE, in consideration of the terms, conditions, restrictions and covenants contained herein and in that certain "Occupancy and Resale Deed Restriction, Agreement and Covenant" appended hereto as Exhibit "A", the parties hereto agree as follows: \ 1. Subject to the terms and conditions set forth in this Agreement and the deed restrictions set forth at Exhibit "A" appended hereto and incorporated here as if fully set forth, Seller agrees to convey to Purchasers the following described property: Unit 1 McARTHUR CONDOMINIUMS 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 Declaration for McARTHUR CONDOMINIUMS appearing in such records at Book 394 Page 569 as Reception No. 226641, as amended by correction recorded September 2, 19B3, in Book 451, at Page 427, as Reception No. 252907, being situate on Lot 1, Aspen Employee Housing No. 1 SUbdivisiorl, City of Aspen, Colorado. I together with all improvements thereon and all fixtures of a permanent nature currently on the premises except as hereinafter ie provided, in their present condition, ordinary wear and tear ~ excepted, hereinafter called the Property. '~< e. &,' \ , #Il'" ~. , 'Il'. 1,',", ~ 2. The undersigned person(s) stephen H. and Amy BarwiCk, as joint tenants hereby agree to buy the property upon the terms and conditions stated herein. 3. The purchase price shall be U.S. $210,500.00. 4. Price to include any of the following items currently on the property: lighting, heating, plumbing, ventilating, and central air conditioning fixtures; attached TV antennas and/or water softener (if owned by Seller); all outdoor plants, window and porch shades, venetian blinds, storm windows, storm doors, screens, curtain rods, drapery rods, attached mirrors, linoleum, floor tile, awnings, fireplace screen and grate, built-in kitchen appliances, wall-to-wall carpeting, hot tub, all in their prese~t condition, conveyed free and clear of all taxes, liens and encumbrances except as provided in paragraph 11. personal property. shall be conveyed by bill of sale. 5. If a new loan is to be obtained by purchaser from a third party, purchaser agrees to promptlY and diligently (a) apply for such loan, (b) execute all documents and furnish all information and documents required by the lender, and (c) pay the customary costs of obtaining such loan. Then if such loan is not approved on or before December 31, 1995, or if so approved but is not available at time of closing, this contract shall be null and void and all payments and things of value received hereunder shall be returned to purchaser. 6. Purchaser agrees to apply for a loan and agrees to pay interest rate not to exceed 9% per annum. 7. If a note is to be made payable to Seller as partial or full payment of the purchase price, this contract shall not be assignable by purchaser without written consent of Seller. 8. Cost of any appraisal for loan purposes to be obtained after this date shall be paid by purchasers. 9. An abstract of title to the property, certified to date, or a current commitment for title insurance policy in an amount equal to the purchase price, at Seller's option and expense, shall be furnished to purchaser on or before October 1, 1995. If Seller elects to furnish said title insurance commit- ment, Seller will deliver the title insurance policy to purchaser after closing and pay the premium thereon. 2 -' ~', \<.. '- \t .'<.. -" ,I"',. 1~ "\'''' 10. The date of closing shall be the date for delivery of deed as provided in Paragraph 11. The hour and place of closing shall be as designated by mutual consent of the parties. ' 11. At the closing, title to the Property shall be market- able in Seller. Subject to payment of the purchase price as provided in Paragraph 3 and compliance by Purchasers with all of the other terms and conditions to be complied with by Purchasers under this Agreement, Seller shall execute and deliver to Pur- chasers at the closing a good and sufficient General warranty Deed conveying the Property free and clear of all liens and encumbrances, except recorded and/or apparent easements for telephone, cable, electricity, water, sanitary sewer, and subject to building and zoning regulations. The parties hereto further agree to execute at the time of conveyance and have recorded, at Purchaser's expense, an "Occupancy and Resale Deed, Restriction Agreement, and Covenant" for the property on a form identical to that appended hereto as Exhibit "A" and incorporated herein by this reference. 12. Except as stated in paragraphs 11 and 13, if title is not merchantable 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 effort 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 Seller's option and upon written notice to Purchaser or Purcha- ser's agent on or before date of closing, the date of closing shall be extended thirty days for the purpose of correcting said defect(s). Except as stated in paragraph 13, if title is not rendered merchantable as provided in this paragraph 12, at Pur- chaser's option, this contract shall be void and of no effect a~d each party hereto shall be released from all obligations hereun~ der and all payments and things of value received thereunder shall be returned to Purchaser. 13. Any encumbrance required to be paid may be paid at the time of settlement from the proceeds of this transaction or from any other source. Provided, however, at the option of either party, if the total indebtedness secured by liens on the Property exceeds the purchase price, this contract shall be void and of no effect and each party hereto shall be released from all obliga- tions hereunder and all payments and things of value received hereunder shall be returned to Purchaser. 14. The parties hereto acknowledge that the property is not subject to general taxes up to the date of closing. Purchasers shall be responsible for the payment of all property taxes and assessments levied following the date of closing. 3 ,:"",-"" 1ft \\ ''C.._ $1). ;%", \'0<< Il' "'~""." , I~" \;i\_ 15. In the event the Property shall be damaged by fire or other casualty prior to time of closing, in an amount of not more than ten per cent of the total purchase price, Seller shall be obligated to repair the same before the date herein provided for delivery of deed. In the event such damage is not or cannot be repaid within said time or if the damages exceed such sum, this contract may be terminated at the option of Purchaser and all payments and things of value received hereunder shall be returned to Purchaser. Should Purchaser elect to carry out this contract despite such damage, Purchaser shall be entitled to all the credit for the insurance proceeds resulting from such damage, not exceeding, however, the total purchase price. Should any fix- tures or services fail between the date of this contract and the date of possession or the date of delivery of deed, whichever shall be earlier, then Seller shall be liable for the repair or replacement of such fixtures or services with a unit of similar size, age and quality, or an equivalent cre~it. 16. 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 as herein provided, there shall be the following remedies: (a) IF SELLER IS IN DEFAULT, (1) Purchaser may elect to treat this contract as terminated, in which case all payments and things of value received hereunder shall be returned to Purchaser and Purchaser may recover such damages as may be proper; or (2) Purchaser may elect to treat this contract as being in full force and effect and Purchaser shall have the right to an action for specific performance or damages, ,or both. (b) IF PURCHASER IS IN DEFAULT, (1) Seller may elect to treat this contract as terminated, in which case all payments and things of value received hereunder shall be forfeited and retained on behalf of Seller and Seller may recover such damages as may be proper, or (2) Seller may elect to treat this contract as being in full force and effect and Seller shall have the right to an action for specific performance or damages, or both. (c) Anything to the contrary herein notwithstanding, in the event of any litigation arising out of this contract, the court may award to the prevailing party all reasonable costs and expense, including attorney's fees. 17. Seller represents and warrants to/Purchasers that it is not a foreign person as defined in Section 1445(f) (3) of the 4 ,'.a.. !{~. "~-'. \~\" , , 1111).... 1\\ '. , Internal Revenue Code of 1954, as amended, and agrees to execute and deliver to Purchasers at closing an affidavit of such fact. 18. The terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the heirs, execu- tors, administrators, personal representatives, successors and assigns of the Seller and Purchasers; provided that the Purchas- ers may not assign or modify this Agreement without prior written consent of the Seller as contained herein. IN WITNESS WHEREOF, the parties have set their hands and seals on the date first set forth above. SELLER: CITY OF ASPEN, COLORADO By: ~.~ i--g~~ John S Bennett, Mayor ATTEST: Kathryn S. Koch, city Clerk PURCHASERS: Stephen H. Barwick Amy Barwick 5 "'It. 0'.\,".'. ':\" 111_..... \1. \; 0_... \~- ..- - CITY OF ASPEN OCCUPANCY AND RESALE DEED RESTRICTION, AGREEMENT, AND COVENANT THIS OCCUPANCY AND RESALE DEED RESTRICTION, AGREEMENT, AND COVENANT (the "Agreement") is made and imposed this day of , 1995, by Stephen H. and Amy Barwick ("Owner"):, for the benefit of and enforceable by the CITY OF ASPEN, a Colorado home rule city, for and in consideration of the convey- ance of the subject property to Owner. WIT N ESE T H: WHEREAS, Owner has purchased and owns as a result of that certain warranty deed executed on the date hereof, a 2,800 squ~re foot dwelling ("Dwelling") located on the real property more specifically described in Exhibit "A" attached hereto and incor- porated herein. For purposes of this Agreement, the dwelling, the real property and all appurtenances, improvements and fix- tures associated therewith shall hereinafter be referred to as the "Property"; and WHEREAS, Owner agrees to restrict the acquisition of the Property to Aspen or its designees. In addition, the Owner agrees that this Agreement shall constitute a resale agreement setting forth the maximum sale price for which the Property may be sold ("Maximum Sale Price"), the amount of appreciation and the terms and provisions controlling the resale of the Property should Owner desire to sell the Property at any time after the date of this Agreement. NOW, THEREFORE, for value received as described above, the receipt and sufficiency of which is hereby acknowledged, Owner hereby represents, covenants and agrees as follows: 1. One of the parties constituting Owner is a full-time employee of the City of Aspen and in connection with the purchase of this Property, Owner agrees to sell the Property only in accordance with this Agreement. 2 . It shall be a breach of this Agreement for Owner to default in payments or other obligations due under a promissory note secured by a first deed of trust. Owner hereby agrees to notify Aspen, in writing, of any notification it receives from a lender, or its assigns, of past due payments or default in payment or other obligations due under a promissory note secured by a first deed of trust within five calendar days of OWn- er's notification from lender, or its assigns, of s~id default or past due payments. -" II"'" ,.(;' It 't,,,-,_ Upon notification from Owner, Aspen may offer loan counseling and distressed loan services to Owner, if any of these services are available, and may require Owner to sell the Property to avoid the commencement of any foreclosure proceeding against the Property. In the event that Aspen determines that sale of the Prop, erty is necessary, Owner shall immediately execute and deliver a standard general warranty deed conveying the Property to Aspen, or its designee, in exchange for the payment to, or for the benefit of, Owner a purchase price computed under the formula set forth in this agreement. 3 . This agreement shall constitute covenants running with the real property described in Exhibit "A", as a burdr=n thereon for the benefit of, and shall be specifically enforceable by, the Owner and Aspen, and their respec- tive successors and assigns, as applicable, by any appropriate legal action including but not limited to injunction, reversion, or eviction of non-complying owners and/or occupants. 4. In the event that the Owner desires to sell the Proper- ty, Owner shall so advise Aspen in writing and Aspen, or its designee, shall purchase the Property from Owner not more than ninety (90) days from the date of receipt of such notice, at the purchase price established by this Agreement. .-. , (~" ' \~'..,,~ RESALE PRICE 5. In the event that the Property is sold to Aspen or it$ designee pursuant to this Agreement, the Property shall be sold for an amount equal to the lesser of: a. The Owner's purchase price of $210,500.00, plus an increase of three percent (3%) of the purchase price per year from the date of purchase (proratr=d at the rate of .25% percent for each whole month for any part of a year); or b. An amount (based upon the Consumer Price Index, All Items, U.S. City Average, Urban Wage Earners and Clerical Workers (Revised), published by the U.S. Department of Labor, Bureau of Labor statis- tics) calculated as follows: the Owner's purchase price multiplied by the Consumer Price Index last published prior to the date of Owner's notice of desire to sell divided by the Consumer Price Index ',.",' << " ".;:~ 2 "_..... I" (~\, current at the date of this Agreement, (the par- ties agree that the Consumer Price Index for May!, 1995, is 152.2), Plus the cost of capital Improvements not exceeding ten percent (10%) of Owner's original purchase price as set forth below: capital Improvements means capital improvements made and paid for by Owner pursuant to the requirements of any governmental body, agency or Homeowner's Association, or approved in writing by the city of Aspen through its city Manager or designee. Capital Improvements shall be validated by production of original receipted for costs (actual cost) with no allocation for Owner's "sweat equity"; no Capital Improvements shall be added to calculation without proof of receipts affidavit as to validity of receipts, and certifi- cate of occupancy from the Aspen/Pitkin County Building Department. "_ ir'..... 1'.'- ''<\, Less the cost of any repairs or replacements necessary to restore the property to a reasonably adequate level of repair and habitability. For purposes of this section, repairs and replacement required by ordinary wear and tear shall not be deducted from the sales price otherwise computed hereunder. Less an amount equal to 1.33% of the Owner's original purchase price of the property multiplied by the number of years, or fractions thereof, from the Owner's date of purchase of the Property to the date of sale hereun- der in order to fund capital Replacements made in accordance with the city's Asset Management Plan. 6. All disputes between Owner and administrative staff of Aspen shall be decided by the city Manager of the city of Aspen, and any decision of the city Manager may be appealed to the Aspen city council within ten (10) days of any decision by the city Manager. 7. Owner shall be responsible for the payment of the Owner's customary closing costs and prorations. 8 . In the event that title to the Property vests by de- scent in any individuals and/or entities other than Owner or Owner's surviving joint tenant who is the Aspen city employee, the surviving tenant-in-common who ~e{' tt' 1\ '<. 3 ....'.1)'."." ,~ \\~ ..r........ ~! 1\,. It._. 't" ''\< is not an Aspen city employee, devisee, heir, or per- sonal representative, shall, within one hundred eighty (180) days, execute and deliver a general warranty deed conveying the Property to Aspen or its designee, in exchange for the payment to or for the benefit of the grantor of a purchase price computed under the formula set forth in this Agreement. CITY OF ASPEN EMPLOYMENT AND REAL PROPERTY OWNERSHIP RESTRICTION 9. Owner agrees that, in the event Owner ceases to be a full-time employee of the city of Aspen, Owner will within not more than one hundred eighty (180) days execute a general warranty deed conveying the Property to Aspen, or its designee, in exchange for the payment to, or for the benefit of, the Owner of a purchase price computed under the formula set forth in this Agreement. 10. If at any time the Owner of the Property also owns an interest in any other developed residential property or dwelling unit(s), Owner agrees to immediately list said other property or unit for sale at a sales price compa'- rable to like units or properties in the area in which the property or dwelling unit(s) are located, until sold. In the event said other property or unit has not been sold by Owner within one hundred eighty (180) days of its listing, then Owner will within not more than one hundred eighty (180) days execute a general warran- ty deed conveying the property to Aspen, or its desig- nee, in exchange for the payment to, or for the benefit of, the Owner of a purchase price computed under the formula set forth in this Agreement. BREACH 11. In the event that Aspen has reasonable cause to believe the Owner is violating the provisions of this Agree- ment, Aspen by its authorized representative, may inspect the property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing the Owner with no less than 24 hours' prior written or oral notice. 12. Aspen, in the event a violation is discovered, shall send a notice of violation to the Owner detailing the nature of the violation and allowing the Owner fifteen (15) days to cure. Said notice shall state that the 4 "Il'" "'''', \j \'. '~, Owner may request a hearing within fifteen (15) days ~o determine the merits of the allegations. REMEDIES 13. There is hereby reserved to the parties hereto any and all remedies provided by law for breach of this Agree,- ment or any of its terms. In the event the parties resort to litigation with respect to any or all provi- sions of this Agreement, the prevailing party shall be entitled to recover damages and costs, including rea- sonable attorney's fees. 14. In the event the Property is sold and/or conveyed without compliance herewith, such sale and/or convey- ance shall be wholly null and void and shall convey no title whatsoever upon the purported buyer. Each and every conveyance of the Property, for all purposes, shall be deemed to include and incorporate by this reference, the covenants herein contained, even without reference herein to this Agreement. ""e 1M '" \\ 15. In the event that the Owner fails to cure any breach, Aspen may resort to any and all available legal action, including, but not limited to, specific performance qf this Agreement or a mandatory injunction requiring sale of the Property by Owner. The costs of such sale shall be taxed against the proceeds of the sale with the balance being paid to the Owner. 16. In the event of a breach of any of the terms or condi- tions contained herein by Owner, his heirs, successors or assigns, the original purchase price of the Property as set forth in section 6(a) of this Agreement shall, upon the date of such breach, automatically cease to increase as set out in paragraph 6 of this Agreement, and shall remain fixed until the date of cure of said breach. GENERAL PROVISIONS 17. Notices. Any notice, consent or approval which is required to be given hereunder shall be given by mail- ing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to any address provided herein or to any subsequent mail- ing address of the party as long as prior written notice of the change of address has been given to the '-' ~{ ~t\ '."" 5 I)" I~~,! \)\ ~ It, '". "<Co ". ~. other parties to this Agreement. sents and approvals shall be sent at the following addresses unless writing: Said notices, con- to the parties hereto otherwise notified in To Owner: Stephen H. and Amy Barwick 705 Cemetery Lane Aspen, Colorado 81611 To Aspen: City Manager 130 South Galena Street Aspen, Colorado 81611 18. Exhibits. All exhibits attached hereto, if any, are incorporated herein and by this reference made a part hereof. 19. Severabilitv. Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such manner as to be valid under appli- cable law; but, if any provision of any of the forego- ing shall be invalid or prohibited under said applica- ble law, such provisions shall be ineffective to the extent of such invalidity or prohibition without inval- idating the remaining provisions of such document. 20. Choice of Law. This Agreement and each and every related document is to be governed and construed in accordance with the laws of the State of Colorado. 21. 22. 23. o~,l Successors. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and as- signs of the parties. section Headinos. Any paragraph or section heading within this Agreement is inserted solely for conve- nience of reference, and is not intended to, and shall not, govern, limit or aid in the construction of any terms or provisions contained herein. Waiver. No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any party hereto except on the basis of a written instrument executed by the parties to this Agreement. However, the party for whose benefit al condition is inserted herein shall have the unilateral right to waive such condition. 6 I""il)', ,,' \\,,- , i I 24. Gender and Number. Whenever the context so requires herein, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. 25. Personal Liabilitv. Owner agrees that he shall be personally liable for any of the transactions contem- plated herein. 26. Further Actions. The parties to this Agreement agree to execute such further documents and take such further actions as may be reasonably required to carry out the provisions and intent of this Agreement or any agree- ment or document relating hereto or entered into in connection herewith. 27. Modifications. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made by writings signed by both parties and recorded with the Clerk and Recorder of Pitkin County, Colorado. IN WITNESS WHEREOF, the parties .,instrument on the day and year above il1~ " ERS. \0;, . hereto have executed this first written. Stephen H. Barwick Amy Barwick STATE OF COLORADO ss. County of Pitkin The foregoing instrument was acknowledged before me this day of , 1995, by Stephen H. Barwick and Amy Barwick. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: ~otary Public ;; '\ O'C-~e '" -~". Address e' Ii> '&' W "<:: 7 'I) .q", ~, "',< ACCEPTANCE BY THE CITY OF ASPEN The foregoing grant and its terms are accepted by the City of Aspen. CITY OF ASPEN, COLORADO ATTEST: By: ~~ (5~- JOhM H. Bennett, Mayor STATE OF COLORADO ) ) ss. ) Kathryn S. Koch, City Clerk County of Pitkin The foregoing instrument day of '"Iff., as Mayor and II olorado. Z\( WITNESS MY HAND AND OFFICIAL SEAL. was acknowledged before me this , 1995, by John H. Bennett Kathryn S. Koch as City Clerk of the City of Aspen, My commission expires: Notary Public Address db213.1 e1: o.l(..~"..e' l'lt, i% 'S< 8 ~-'" (,!\ '. 'It. i~,.,'. 1''-'' i;; \\'- "-. ,itJ, l~ ," RESIDENTIAL CONTRACT TO BUY AND SELL REAL ESTATE ~ ~ ---u-. 57J--. THIS AGREEMENT, made this 15th day of August, 1995, by and between John H. and Deborah J. Reid, Purchasers, and the CITY OF ASPEN, COLORADO, a Colorado home rule municipal corporation, Seller. WIT N E SSE T H: WHEREAS, the Seller owns certain real property situate in the city of Aspen, pitkin county, Colorado; and WHEREAS, John H. Reid is an employee of the city of Aspen and he and his spouse desire to purchase said real property as joint tenants; and WHEREAS, Seller, in furtherance of its policy in assisting its employees in securing affordable housing, has indicated its willingness to have the said real property purchased by city employees subject to certain conditions and restrictions; NOW, THEREFORE, in consideration of the terms, conditions, restrictions and covenants contained herein and in that certain "occupancy and Resale Deed Restriction, Agreement and Covenant" appended hereto as Exhibit "A", the parties hereto agree as follows: 1. subject to the terms and conditions set forth in this Agreement and the deed restrictions set forth at Exhibit "A" appended hereto and incorporated here as if fully set forth, Seller agrees to convey to Purchasers the following described property: unit 2 CHAPMAN CONDOMINIUMS appearing in Book 15 at Pages 91-92 of the records of Pitkin county, colorado, and as described and defined in that Condominium Declaration for CHAPMAN CONDOMINIUMS appearing in such records at Book 393, Pages 663 through 673 and Plat Book 10 at Pages 33 through 35, being situate on Lot 2, Aspen Employee Housing No. 1 SUbdivision, City of Aspen, pitkin County, Colorado. together with all improvements thereon and all fixtures of a J permanent nature currently on the premises except as hereinafter provided, in their present condition, ordinary wear and tear excepted, hereinafter called the property. .. _.._.._.____._._._,__.__.,__...,.~,_,~._._._,.-.--.--.__'^,..c_..___ - T '-" ~'" \0>... It ".f", :l \,< ',. '(;- 2. The undersigned person(s) John H. and Deborah J. Reid" as joint tenants hereby agree to buy the Property upon the terms and conditions stated herein. 3. The purchase price shall be U.S. $93,100.00. 4. Price to include any of the following items currently on the Property: lighting, heating, plumbing, ventilating, and central air conditioning fixtures; attached TV antennas and/or water softener (if owned by Seller); all outdoor plants, window and porch shades, venetian blinds, storm windows, storm doors, screens, curtain rods, drapery rods, attached mirrors, linoleum, floor tile, awnings, fireplace screen and grate, built-in kitchen appliances, wall-to-wall carpeting, all in their present condi- tion, conveyed free and clear of all taxes, liens and encumbranc- es except as provided in paragraph 11. Personal property shall be conveyed by bill of sale. 5. If a new loan is to be obtained by Purchaser from a third party, Purchaser agrees to promptly and diligently (a) apply for such loan, (b) execute all documents and furnish all information and documents required by the lender, and (c) pay the customary costs of obtaining such loan. Then if such loan is not approved on or before December 31, 1995, or if so approved but 'is not available at time of closing, this contract shall be null a!nd void and all payments and things of value received hereunder shall be returned to Purchaser. 6. Purchaser agrees to apply for a loan and agrees to pay interest rate not to exceed 9% per annum. 7. If a note is to be made payable to Seller as partial or full payment of the purchase price, this contract shall not be assignable by Purchaser without written consent of Seller. 8. Cost of any appraisal for loan purposes to be obtained after this date shall be paid by Purchasers. 9. An abstract of title to the Property, certified to date, or a current commitment for title insurance policy in an amount equal to the purchase price, at Seller's option and expense, shall be furnished to Purchaser on or before October 1, 1995. If Seller elects to furnish said title insurance commit- ment, Seller will deliver the title insurance policy to Purchaser after closing and pay the premium thereon. I 2 ".T'P, aia...... 'W iilti. I~ 1\\, l1a '~. 10. The date of closing shall be the date for delivery of deed as provided in Paragraph 11. The hour and place of closing shall be as designated by mutual consent of the parties. 11. At the closing, title to the Property shall be market- able in Seller. Subject to payment of. the purchase price as provided in Paragraph 3 and compliance by Purchasers with all of the other terms and conditions to be complied with by Purchasers under this Agreement, Seller shall execute and deliver to Pur- chasers at the closing a good and sufficient General Warranty Deed conveying the Property free and clear of all liens and encumbrances, except recorded and/or apparent easements for telephone, cable, electricity, water, sanitary sewer, and subject to building and zoning regulations. The parties hereto further agree to execute at the time of conveyance and have recorded, at Purchaser's expense, an "Occupancy and Resale Deed, Restriction Agreement, and Covenant" for the property on a form identical to that appended hereto as Exhibit "A" and incorporated herein by this reference. 12. Except as stated in paragraphs 11 and 13, if title is not merchantable 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 effort 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 Seller's option and upon written notice to Purchaser or Purcha- ser's agent on or before date of closing, the date of closing shall be extended thirty days for the purpose of correcting said defect(s). Except as stated in paragraph 13, if title is not rendered merchantable as provided in this paragraph 12, at Pur- chaser's option, this contract shall be void and of no effectanr each party hereto shall be released from all obligations hereun- der and all payments and things of value received thereunder shall be returned to Purchaser. 13. Any encumbrance required to be paid may be paid at the time of settlement from the proceeds of this transaction or from any other source. Provided, however, at the option of either party, if the total indebtedness secured by liens on the Property exceeds the purchase price, this contract shall be void and of no effect and each party hereto shall be released from all obliga- tions hereunder and all payments and things of value received hereunder shall be returned to Purchaser. 14. The parties hereto acknowledge that the property is not subject to general taxes up to the date of closing. Purchasers shall be responsible for the payment of all property taxes and assessments levied following the date of closing. 3 .. --;:':-mr ~.'.a.<.. ~ .'-..... ~ c ~ ~.. ~ ,~ 15. In the event the Property shall be damaged by fire or other casualty prior to time of closing, in an amount of not more than ten per cent of the total purchase price, Seller shall be obligated to repair the same before the date herein provided for delivery of deed. In the event such damage is not or cannot be repaid within said time or if the damages exceed such sum, this contract may be terminated at the option of Purchaser and all payments and things of value received hereunder shall be returned to purchaser. Should Purchaser elect to carry out this contract despite such damage, Purchaser shall be entitled to all the credit for the insurance proceeds resulting from such damage, not exceeding, however, the total purchase price. Should any fix- tures or services fail between the date of this contract and the date of possession or the date of delivery of deed, whichever shall be earlier, then Seller shall be liabl.e for the repair or replacement of such fixtures or services with a unit of similar size, age and quality, or an equivalent credit. 16. 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 as herein provided, there shall be the following remedies: (a) IF SELLER IS IN DEFAULT, (1) Purchaser may elect to treat this contract as terminated, in which case all payments and things of value received hereunder shall be returned to Purchaser and Purchaser may recover such damages as may be proper; or (2) Purchaser may elect to treat this contract as being in full force and effect and Purchaser shall have the right to an action for specific performance or damages, or both. (b) IF PURCHASER IS IN DEFAULT, (1) Seller may elect to treat this contract as terminated, in which case all payments and things of value received hereunder shall be forfeited and retained on behalf of Seller and Seller may recover such damages as may be proper, or (2) Seller may elect to treat this contract as being in full force and effect and Seller shall have the right to an action for specific performance or damages, or both. (c) Anything to the contrary herein notwithstanding, in the event of any litigation arising out of this contract, the court may award to the prevailing party all reasonable costs and expense, including attorney's fees. 17. Seller represents and warrants to Purchasers that it is not a foreign person as defined in section 1445(f) (3) of the 4 ~/ 6....,.._....... U' Ie. "". .wlt'.. N. -\\ '", (e Internal Revenue Code of 1954, as amended, and agrees to execute and deliver to Purchasers at closing an affidavit of such fact. 18. The terms and provisions of this Agreement shall be binding upon and shall inure to the benerit of the heirs, execU- tors, administrators, personal representatives, successors and assigns of the Seller and Purchasers; provided that the Purchas- ers may not assign or modify this Agreement without prior written consent of the Seller as contained herein. IN WITNESS WHEREOF, the parties have set their hands and seals on the date first set forth above. SELLER: CITY OF ASPEN, COLORADO By: -fJL. {3~~';it-' John S. nnett, Mayor ATTEST: Kathryn S. Koch, city Clerk PURCHASERS: John H. Reid Deborah J. Reid 5 /'- ('fr'", ~, '- kT '1:\",-, ,. - CITY OF ASPEN OCCUPANCY AND RESALE DEED RESTRICTION, AGREEMENT, AND COVENANT THIS OCCUPANCY AND RESALE DEED RESTRICTION, AGREEMENT, AND COVENANT (the "Agreement") is made and imposed this day of , 1995, by John H. and Deborah J. Reid ("Owner"), for the benefit of and enforceable by the CITY OF ASPEN, a Colorado home rule city, for and in consideration of the convey- ance of the subject property to Owner, WIT N E SSE T H: WHEREAS, Owner has purchased and owns as a result of that certain warranty deed executed on the date hereof, a 1,223 square foot dwelling ("Dwelling") located on the real property more specifically described in Exhibit "A" attached hereto and incor- porated herein. For purposes of this Agreement, the dwelling, the real property and all appurtenances, improvements and fix- tures associated therewith shall hereinafter be referred to as the "Property"; and WHEREAS, Owner agrees to restrict the acquisition of the Property to Aspen or its designees. In addition, the Owner agrees that this Agreement shall constitute a resale agreement setting forth the maximum sale price for which the Property may be sold ("Maximum Sale price"), the amount of appreciation and the terms and provisions controlling the resale of the Property should Owner desire to sell the Property at any time after the date of this Agreement. NOW, THEREFORE, for value received as described above, the receipt and sufficiency of which is hereby acknowledged, Owner hereby represents, covenants and agrees as follows: 1. One of the parties constituting Owner is a full-time employee of the city of Aspen and in connection with the purchase of ,this Property, Owner agrees to sell the Property only in accordance with this Agreement. 2. It shall be a breach of this Agreement for Owner to default in payments or other obligations due under a promissory note secured by a first deed of trust. Owner hereby agrees to notify Aspen, in writing, of ~ny notification it receives from a lender, or its assigns, of past due payments or default in payment or other obligations due under a promissory note secured by a first deed of trust within five calendar days of Own- er's notification from lender, or its assigns, of said default or past due payments. "-'...... k~ "~\ "<'-- Upon notification from Owner, Aspen may offer loan counseling and distressed loan services to Owner, if any of these services are available, and may require Owner to sell the Property to avoid the commencement of any foreclosure proceeding against the Property. In the event that Aspen determines that sale of the Prop- erty is necessary, Owner shall immediately execute and deliver a standard general warranty deed conveying the Property to Aspen, or its designee, in exchange for the payment to, or for the benefit of, Owner a purchase price computed under the formula set forth in this agreement. 3 . This agreement shall constitute covenants running with the real property described in Exhibit "A", as a burden thereon for the benefit of, and shall be specifically enforceable by, the Owner and Aspen, and their respec- tive successors and assigns, as applicable, by any appropriate legal action including but not limited to injunction, reversion, or eviction of non-complying owners and/or occupants. 4. In the event that the Owner desires to sell the Proper- ty, Owner shall so advise Aspen in writing and Aspen, or its designee, shall purchase the Property from Owner not more than ninety (90) days from the date of receipt of such notice, at the purchase price established by this Agreement. ,-....... l~:1. RESALE PRICE 5. In the event that the Property is sold to Aspen or its designee pursuant to this Agreement, the Property shall be sold for an amount equal to the lesser of: a. The Owner's purchase price of $210,500.00, plus an increase of three percent (3%) of the purchase price per year from the date of purchase (prorated at the rate of .25% percent for each whole month for any part of a year); or b. An amount (based upon the Consumer Price Index, All Items, U.S. city Average, Urban Wage Earners and Clerical Workers (Revised), published by the U.S. Department of Labor, Bureau of Labor statis- tics) calculated as follows: the Owner's purchase price multiplied by the Consumer Price Index last published prior to the date of Owner's notice or desire to sell divided by the Consumer Price Index ,...It. {0 &i '0 '.z\ 2 "".'-'.".. ~' \\ ", current at the date of this Agreement, (the par~ ties agree that the Consumer Price Index for May, 1995, is 152.2), Plus the cost of Capital Improvements not exceeding ten percent (10%) of Owner's original purchase price as set forth below: Capital Improvements means capital improvements made and paid for by Owner pursuant to the requirements of any governmental body, agency or Homeowner's Association, or approved in writing by the city of Aspen through its city Manager or designee. Capital Improvements shall be validated by production of original receipted for costs (actual cost) with no allocation for Owner's "sweat equity"; no Capital Improvements shall be added to calculation without proof of receipts affidavit as to validity of receipts, and certifi- cate of occupancy from the Aspen/Pitkin County Building Department. "It .'.!..'."....... ('" \~' Less the cost of any repairs or replacements necessary to restore the Property to a reasonably adequate level of repair and habitability. For purposes of this ' section, repairs and replacement required by ordinary wear and tear shall not be deducted from the sales price otherwise computed hereunder. Less an amount equal to 1..33% of the Owner's original purchase price of the Property multiplied by the nu~ber of years, or fractions thereof, from the Owner's da~e of purchase of the Property to the date of sale hereun- der in order to fund Capital Replacements made in accordance with the City's Asset Management Plan. 6. All disputes between Owner and administrative staff of Aspen shall be decided by the city Manager of the c~ty of Aspen, and any decision of the city Manager may be appealed to the Aspen city Council within ten (10) days of any decision by the City Manager. 7. Owner shall be responsible for the payment of the Owner's customary closing costs and prorations. 8. In the event that title to the Property vests by de- scent in any individuals and/or entities other than Owner or Owner's surviving joint tenant who is the Aspen City employee, the surviving tenant-in-common who ~.-.'.'. 'it_ 3 '-" fir @:i \i\. '-" ~. -, ~. is not an Aspen city employee, devisee, heir, or per- sonal representative, shall, within one hundred eighty (180) days, execute and deliver a general warranty deed conveying the Property to Aspen or its designee, in exchange for the payment to or for the benefit of the grantor of a purchase price computed under the formula set forth in this Agreement. CITY OF ASPEN EMPLOYMENT AND REAL PROPERTY OWNERSHIP RESTRICTION 9. Owner agrees that, in the event Owner ceases to be a full-time employee of the City of Aspen, Owner will within not more than one hundred eighty (180) days execute a general warranty deed conveying the Property to Aspen, or its designee, in exchange for the payment to, or for the benefit of, the Owner of a purchase price computed under the formula set forth in this Agreement. 10. If at any time the Owner of the Property also owns an interest in any other developed residential property or dwelling unit(s), Owner agrees to immediately list said other property or unit for sale at a sales price compa- rable to like units or properties in the area in which the property or dwelling unit(s) are located, until sold. In the event said other property or unit has not been sold by Owner within one hundred eighty (180) days of its listing, then Owner will within not more than one hundred eighty (180) days execute a general warran- ty deed conveying the Property to Aspen, or its desig- nee, in exchange for the payment to, or for the benefit of, the Owner of a purchase price computed under the formula set forth in this Agreement. BREACH 11. In the event that Aspen has reasonable cause to believe the Owner is violating the provisions of this Agree- ment, Aspen by its authorized representative, may inspect the Property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing the Owner with no less than 24 hours' prior written or oral notice. 12. Aspen, in the event a violation is discovered, shall send a notice of violation to the Owner detailing the nature of the violation and allowing the Owner fifte~n (15) days to cure. Said notice shall state that the 4 A.._,".' ~ o Owner may request a hearing within fifteen (15) days to determine the merits of the allegations. REMEDIES 13. There is hereby reserved to the parties hereto any and all remedies provided by law for breach of this Agree- ment or any of its terms. In the event the parties resort to litigation with respect to any or all provi- sions of this Agreement, the prevailing party shall be entitled to recover damages and costs, including rea- sonable attorney's fees. 14. In the event the Property is sold and/or conveyed without compliance herewith, such sale and/or convey- ance shall be wholly null and void and shall convey no title whatsoever upon the purported buyer. Each and every conveyance of the Property, for all purposes, shall be deemed to include and incorporate by this reference, the covenants herein contained, even without reference herein to this Agreement. '.. @..... ~ ~ 15. In the event that the Owner fails to cure any breach, Aspen may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement or a mandatory injunction requiring sale of the Property by Owner. The costs of such sale shall be taxed against the proceeds of the sale with the balance being paid to the Owner. 16. In the event of a breach of any of the terms or condi- tions contained herein by Owner, his heirs, successors or assigns, the original purchase price of the Property as set forth in section 6(a) of this Agreement shall, upon the date of such breach, automatically cease to increase as setout in paragraph 6 of this Agreement, and shall remain fixed until the date of cure of said breach. GENERAL PROVISIONS 17. Notices. Any notice, consent or approval which is required to be given hereunder shall be given by mail- ing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to any address provided herein or to any subsequent mail- ing address of the party as long as prior written notice of the change of address has been given to the @e ? ~.. ~ o ~. 5 .- @....1..'....... ~..... other parties to this Agreement. sents and approvals shall be sent at the following addresses unless writing: said notices, con- to the parties her~to otherwise notified in To Owner: John H. and Deborah J. Reid 717 Cemetery Lane Aspen, Colorado 81611 To Aspen: city Manager 130 South Galena Street Aspen, Colorado 81611 18. Exhibits. All exhibits attached hereto, if any, are incorporated herein and by this reference made a part hereof. 19. Severabilitv. Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such manner as to be valid under appli- cable law; but, if any provision of any of the forego- ing shall be invalid or prohibited under said applica- ble law, such provisions shall be ineffective to the extent of such invalidity or prohibition without inval- idating the remaining provisions of such document. - Q ~. , 20. 21. 22. 23. It' 4 ~.,. ~~. Choice of Law. This Agreement and each and every related document is to be governed and construed in accordance with the laws of ,the State of Colorado. Successors. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and as- signs of the parties. section Headinqs. Any paragraph or section heading within this Agreement is inserted solely for conve- nience of reference, and is not intended to, and shall not, govern, limit or aid in the construction of any terms or provisions contained herein. Waiver. No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any party hereto except on the basis of a written instrument executed by the parties to this Agreement. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition. 6 -" ....';'" [if \,;,\ '\\ '\2. CD.' 8.'... I;l\ " ".It. ~'. "~ 24. Gender and Number. Whenever the context so requires herein, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. 25. Personal Liabilitv. Owner agrees that he shall be personally liable for any of the transactions contem- plated herein. 26. Further Actions. The parties to this Agreement agree to execute such further documents and take such further actions as may be reasonably required to carry out the provisions and intent of this Agreement or any agree- ment or document rel~ting hereto or entered into in connection herewith. 27. Modifications. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made by writings signed by both parties and recorded with the Clerk and Recorder of Pitkin County, Colorado. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year above first written. OWNER: John H. Reid Deborah J. Reid STATE OF COLORADO ) ) ss. ) County of Pitkin The foregoing day of Deborah J. Reid. instrument was acknowledged before me this , 1995, by John H. and WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Notary Public Address 7 'e...'..'..... 1'i( \y~" . it It..... \\ . "\ 'It. [" \\\ ACCEPTANCE BY THE CITY OF ASPEN The foregoing grant and its terms are accepted by the City of Aspen. ATTEST: CITY OF ASPEN, COLORADO By: b 5', (~~- John 'jit. Bennett, Mayor Kathryn S. Koch, City Clerk STATE OF COLORADO ss. County of Pitkin The foregoing day of as Mayor and Colorado. instrument was acknowledged before me this , 1995, by John S. Bennett Kathryn S. Koch as City Clerk of the City of Aspen, WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: db213 .1 Notary Public Address 8