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HomeMy WebLinkAboutresolution.council.084-03RESOLUTION NO. ~ ~/' Series of 2003 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT TO BUY AND SELL REAL ESTATE AND ASSIGNMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND PITKIN COUNTY, AND AUTHORIZING THE CITY MANAGER OR MAYOR TO EXECUTE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Contract to Buy and Sell Real Estate and Assigranent of Interests between the City of Aspen, Colorado and Pitkin County, copies of which are annexed hereto and made a part thereof. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section One That the City Council of the City of Aspen hereby'approves a Contract to Buy and Sell Real Estate and Assignment of Interests between the City of Aspen, Colorado and Pitkin County, copies of which are annexed hereto and made a part thereof, and does hereby authorize the City Manager or Mayor of the City of Aspen'to execute said documents on behalf of the City of Aspen. Dated: Helen Kalin ~rt~rud, 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 ~ ~,~, 2003. Kathryn Si Ko~/City (2I~rk- '~~ ASSIGNMENT OF CONTRACT INTEREST THIS ASSIGNMENT (the "assignment") is made and entered into this day of ., 2003, by the Board of. County Commissioners of Pitkin County, Colorado ("Pitkin Countf' oi' "Assignor") to the City of Aspen, Colorado ("Assignee"). WITNESSETH: FOR AND IN CONSIDERATION OF Assignee's promise and commitment to pay and contribute three hundred and twenty five thousand dollars ($325,000) to the purchase o£the Axtel and Protection Mining Claims ("the Property"), and in recognition of other valuable consideration the receipt and sufficiency of which is hereby acknowledged, Assignor hereby sells, grants, conveys, transfers, and assigns to Assignee, its successors and assigns, an UNDIVIDED ONE-HALF INTEREST in that certain Contract to Buy and Sell Real Estate ("the Contract") dated March 14, 2003 between Pitkin County and the Music Associates of Aspen for purchase of the Axtel and Protection Mining Claims. It is the intention of Assignor and Assignee that after execution of this Assignment both Assignor and Assignee shall assume the status of Buyer under the Contract, and that both Assignor and Assignee shall take title to the Property as Tenants in Common. IN WITNESS WHEREOF, Assignor has executed this Assignment on the day first above written. ASSIGNOR: Dale L. Will Open Space and Trails Program Director ASSIGNEE: Steve Barwick, City Manager 03/14/03 The preprinted portions of this form ..... pt italicized or differeatlated_ additi ..... have been approved by the Colorado Real Estate Commission. (CBS3-9-99) CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND - FARM - RANCH) Date: March 14, 2003 1. AGREEMENT. Buyer agrees to buy and the undersigned Seller agrees to sell the Property defined below on the terms and conditions set forth in tiffs contract. · 2. DEFINED TERMS. a. Buyer. Buyer, Pitkin Counvy will take title to the real property described below as [] Joint Tenauts [] Tenants In Common [] Other b. Property. The Property is file following legally described real estate: Axtel Mining Claim USMS 10050, and Protection Mhfing ~la~m 'IJSM~ 10050 as further described in Exliibit A in the County of Pitkin Colo~'adoi commonly known as No. Smuggler Mountain Road S~reet Address C{iy State together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto, all interest of Seller in vacated streets and alleys adjacent thereto, except as herein excluded. c, Dates and Deadlines. Item Reference Event Date or Deadliue ......... m,atmem-De~.:ne 4 ~ ~isa~~ea6tl~e 9 ~ 7a Title Deadline ' ' May 15, 2003 10 ~ 7a S~ey Deadl~e Ma~ 15, 2003 11 ~ 7b Document Request Deadline May 15~ 2003 12 ~ .8a Title Objection D~adl~e ~ May 30, 2003 13 ~ 8b Off-Record Matters Deadline ' ' May 15,2003 14 ~ 8b Off-Record Matters Objection'Deadline May 30~ 2003 15 ~ 10 Seller's Prope~ Disclosure Deadline ' May 15, 2003 16 ~ i0a Inspection Objection Deadline May 30~ 2003 17 ~ 10b Resolution Deadline June 15, 2003 18 ~ 11 Closing Date August 1, 2003 19 ~ 16 Possession Date Au~.~t 1, 2003 20 ~ 16 Possession Time 21 ~ 28 Acceptance Deadline Date March 21, 2003 22 ~ 28 Aeeeplanee Deadline Time ' d. Attacbments. The following exhibits, attachments and addenda are a part of this contract: e. Applicability of Terms. A'check or similar mark in a box means that such provis~on is applicable. The abbreviation "N/A" m.eaus not applicable - 3. 'INCLUSIONS AND' EXC~,USIO~S. a. The Purchase Price includes thc following items (Inclusions): NONE ' (1) Fixtures. If attached to thc Property on the date of this contract, lighting, heating, plumbh~g, ventilating, and air conditioning fixtures, inside telephone wiring and' connecting blocks/jacks, plants, mirrors, floor coverings, intercom systems, sprinkler systems and controls; and (2) Other Inclusions. If on the Property ~vhether attached or no! on the date of this contract: storm windows, stoma doors, window and porch shades, awnings, blinds, screens, window coverings, curtain rods, drapery No, CBS3-9-99. CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND - FARM- RANCH) Page I of 8 Initial 03/14/03 .; .: rods, storage sheds, and all keys. Check applicable box(es) if included: [] Smoke/Fire Detectors, [] Security Systems; and (3} Trade Fixtures. With respect to trade fixtures, Seller and Buyer agree as follows: NA (4) Water Rights. The following legally described water rights: :.~ . .,. :': Any and all water rights appurtunant to the Property ~i (5) Growing Crops. With respect to the growing crops, Seller and Buyer a~ree as follows: " NA %1- b. Instruments of Transfer. The Inclusions are to be conveyed at Closing free and clear of all taxes, liens' and encumbrances, excepl as provided in § 12.' Conveyance shall be by bill of sale or other applicable !egal ':": "":~ ::>}:' instrument(s). Any water rights shall be conveyed by Quit Claim :,:; /i:, ('ii:~:::i:: :} }! deed or off, er applicable legal instrument(s). :',:':':::.: ':::- c. Exclusions. The following attached fixtures are excluded from this sale: NONE :/.;: :.'- 4. PURCHASE PRICE AND TERMS. The Purchase Price set forth below shall be payable in U. S. Dollars By '2i. :' ' '" Item No. Reference Item Amouut Amount ..... -:.: 1 § 4 Purchase Price $ (see addendum) " : : :. ~.:.:i.:- :' : 4 4c Assumption Balance .' : : - - ~ :... 7 TOTAL $ (see addendum) $ (see ' ' :: ....... addendum) :--':' "..i - a. Earnest Money. The Earnest Money set forth in this Section, in the form of Check :;. '.: ~ i/: i :ii: ~ is part payment of the Purchase Price and shall be payable to and held by Pit!tin Couuty Title in its trust accomat, on behalf ofbofl~ Seller and Buyer. The parties authorize delivery of the Earnest Money deposit to the Closing Company, if any, at or before Closing. ............... :e ...... ~ ...... -~o,~- ..... as Gon-,mntiona - ox ......... ~"" :~' .....:-~ by Buyer's lender, a 0cposit-of ,r tl~e amman ..... ~ .............~ ,he-le~ ................ , *~'~ first ............................ :l.: ~::{ ........ S ...................... O= .ce no, .c exceed ~, Assumption, ~uyer agrees lo assume and pay an existing loan ~ the approxtmate amount of the '; ' Assumptiou Balance set forth in ths Section, presently payable ar $ . per ~clud~g principal, interest presently at % per a~u~ snd also ~chid~g escrow for the following as indicated:~ Real Estate Taxes, ~ Property Insurance Premium, and Buyer agrees to pay a loau ~aus¢er fee not to exceed $ . At the time of assumption, the new interest - -' -- -- rate shall not exceed % per a~mum and tbe new pa~ent shall not exceed $ principal and Assumption Balance, which causes the amount of cash requked from Buyer at Closing to be ~creased by more ~an . :,.~ .. $ ., ~en ~ Buyer May Ter~ffinate fids con~act effective upon receipt by Seller of Buyer's wri~en notice of termnation or ~ :' :~'~ .';: ~ Seller ~ Shall ~ Shall Not be released from liability on said loan. If applicable, compliance with the ;., requirements for release ~om liability shall be evidenced by delivery at Closing of appropriate letter of comfitment ~om lender. Cost payable for release of liabiliW s~ll be paid by in an '::~ amount not to exceed $ No; CBS3-9-99. CONTACT TO BUY ~D SELL REAL ESTATE ~ACANT LAND - FA~ - ~CH) Page 2 o f 8 . ~"..... Initial 03/14/03 ~pe~', usin~he form as indicate~trl=t~..n'.* On S~e (TD ~*,~ ~, ..¢n~ u ~ Cred~o~:y (~ 72 7 9~ ~-n ...... ~ ............ e~,, ~ Sl:atl~e~te and deliver, ~ C!oskng, a Secu~- Agreement ~-~ ~,~o~ .' F~nanc~ng ~t~,~ ....... ~ ................ r.~s~e~, r~. ~_~ ~*~ ~ "~- cn the persona! prcpe~' commence "-an~imll be due ~n t[~ .... 'day'cfe~ suc~eM~g . If not sooner pai~e balance of pr~ncipal'and accrued interes~hall be d~nd pa)able af/~ ~l' ~ Sh~! Not be in:teased by cf estLmatcd armm! properD, insurance prcmJum. ~ ~ .... [.. also canta~m ~~z: if any p~ent is not received w!t~hn calendar days a~er its d~ ~*~ ~*~ z!:argc ~ oz of such montbly pa)~ent shall be d~e. *"* .... * ~ '~- ~:~ ........ * ....~- ~e ~ ~c~+.~.,, ~ o/-~ ....... ~ c~.a+:.+ .... +.~+~ sh~. az per a~mum. ~)'er ~ ~pay without = Fcna!ty except Buyer ~ Shall ~ Shall Not provide a mo~gagee's title ius~ance policy, at Buyer's expense. e. Cash at Closing. All amounts'paid by Buyer at Closing ~cluding Cash at Clos~g, plus Buyer's closing costs, shall be A fimds which comply win all applicable Colorado laws, Which include cash, elcc~onic ~ansfe~ hnds, certified check, savings and loan teller's check and casper's check (Good F~). 5. ~ *~NCE~.C CONDIT-tONS ~-NIM~BLICATIONS. a. ~van-App~n ..... j ~. is ,v r~., ~-- cr pa~C~the-tAtrchase Price by-ebtaknk".g ........... , ~r if an ~e req~ment: c~n~nd shall not w~Mraw the loan or ass~ption application, ncr intentior~ lean. r, ...... :~.,:x. ~c amp!cymeS2) ~"~' approval ~c Buyer's crefii~a'o~ness, ¢~ Icnd~ said loan: ~;Js condition shall~e 'deemed waived ~ess Seller receives from B~e~nc later ~han L~an ~.~m ........... ~ ~w, ~wi~n "~*:'~ cf B~h~to cbta~an co~2~znt. !f Bu3re~ · ~w~e THIS ~Ofies S~er, this con.act s~a!! te~2natc. ~ ..... ~m~.~ n~w n~*e NOT CLOSE, BL~A~L BE I~~ fa.gar of Seller er if an existing loan ismot tc Bc re!enid at C!esing, this c:n~act is canal[ts, cna! u~vn gc!!er's ~! af Buyer's 5nancia! ...... ~d~ ........ , whi~pp~Mt! ~= ~' ge!ler'z ::!c and ~crctign.' In such case: (I) Buyer a~upply tc Se!!cr ~y guyer': Credit Inflation Dea~g 2c), Buyer's~,-v ....... ..... , irffcrma~ocumants conceding Buyer's..,.." .... ...... :-', -..,v,~.,,~,~---' .... ..... ~ ;.xa:+~., condition; n ............... u~, Seller may v~rify Buyer's n .... ~, .umW ~.a ..~a: ...... ,h~.~ (;..,,,~;.g obt~mg a cuxent ~m ...... v--v,~' ~-~r~ any..~.~ knfo~atisn and do--ants recci'~d by Seller shall be held by S~r ..: .... ~.~..~ ..... ....... , a Ex!sting Loa~iew, !fan exi:ti~an is ..... be releaser Closing, e=ll~. ~M, ' ' ' ' .................... prc',':dc cop:es of ~ ......... TO..--: ..... C~ of objection to s~h !can documents, si~ed by Buyer, is ....... :.,.~ ~.. o~,,~, by the from liability ~d~u~s~an .n~o~ ..... m.: .... carapace as s~o~h in ~ 4c, th~ ~y 5e term:~ated at Seller's opt!om 6. ~P~S~ PROVISIONS. · a. Apprdisal Condition. ~s subsection a. ~ Shall X Silalt Not apply. Buyer shall have the sole option and election to legate ~s con.act if the Pmchase Price exceeds the Prope~'s valuation detemmd by an appraiser engaged by The con.act shall termaate by Buyer giving Seller ~iflen notice of taxation and either a copy of such appraisal or ~itten notice from lendek whch confm the Prope~'s valuation is less tMn ~e Purchase Price, received on or before the Appraisal Deadline (~ 2c). If Seller does not receive such wriaen notice of ter~ffinatioff on or before the Appraisal Deadline (~ 2c), Buyer waives any right to termate under ~s subsection. b. Cost of Appraisal, Cost of any appraisal to be obtah~ed after the date of t~s con~act shall be timely'paid by ~Buyer ~Seller. 7. E~DENCE OF ~TLE. a. Evidence of Title; Survey. On or before Title Deadline (~ 2c), Seller shall cause to be ~nished to Buyer, at Seller's expense, a cu~ent co~tment for omar's title ms.anco policy ~ an amount equal to the initial 03/14/03 ' Purchase Price or if this box is checked, [] An Abstract of title certified to a current date. If a title insurance commitment is furnished, it [] Shall [] Shall Not commit to delete or insure over the standard exceptions Which relate to: (1) parties in possession, (2) unrecorded easements, (3) survey matters, (4) any unrecorded mechanics' liens, (5) gap period (effective date ofconunitment to date deed is recorded), and (6) unpaid taxes, assessments and unredeemed tax sales prior to the year of Closing. . Any additional premium expense to Obtain tlfis additional coverage shall be paid by [] Buyer [] Seller. An amount not to exceed $ for the cost of any hhprovement location certificate or survey shall be paid by [] Buyer [] Seller. If the cost exceeds tiffs anaount, __ shall pay the excess on or before Closing. The improvement location certificate or sm'vey shall be received by Buyer on or before Survey Deadline (§ 2c). Seller shall cause the title insurance policy to be delivered to Buyer as soon as practicable at or after Closing. b. Copies of Exceptions. On or before Title Deadline (§ 2c), Seller, at Seller's expense, shall furnish to Buyer, (1) a copy of any plats, declarations, covenants, conditions and restrictions burdening the Property, and (2) if a title insurance commitment is required to be furnished, an'd if this box is checked [] Copies of any Other Documents (or, if illegible, summaries of such documents) listed in the schedule of exceptions (Exceptions). Even if the box is not checked, Seller shall have the obligation to funfish these documents pursuant to this subsection if requested by Buyer any time on or before the Document Request Deadline (§ 2c). This requirement shall pertaut only to documents as shown of record in the office of the clerk and recurder(s) The abstract or title insurance commitmeut, together with any copies or sunmaaries of such documents furnished pursuant to tiffs Section, constitute the title documents (Title Dgcuments). 8. TITLE. a. Title Review.' Buyer shall have the right to inspect the Title Documents. Writteu notice by Buyer of unmerchantability of title or of any other unsatisfactory title condition shown by the Title Documents shall be signed by or on behalf of Buyer and given to Seller on or before Title Objection Deadline (§ 2c), or within five (5) calendar days after receipt by Buyer of any Title Document(s) or endorsement(s) adding new Exception(s) to the title commitment together with' a copy of the Title Document adding new Exception(s) to title. If Seller does not receive Buyer's notice by the date(s) specified above, Buyer accepts the condition of title as disclosed by the Title Documents as satisfactory. b. Matters not Shown by the Public Records. Seller shall deliver to Buyer,' on or before Off-Record Matters Deadline (§ 2c) m~e copies of all lease(s) and survey(s) in Seller's possession pertaining to the Property and shall disclose tO Buyer all easements, liens or other title matters not shown by the public records of wtfich Seller has actual knowledge. Buyer Shall have the right to inspect the Property to determine if any third party(ies) has any right in the Property not shoxvn by the public records (such as an unrecorded easement, unrecorded lease, or boundary line discrepancy). Written notice of any unsatisfactory condition(s) disclosed by Seller or revealed .by such inspection shall be signed by or on behalf of Buyer and given to Seller on or before Off-Record Matters Objection Deadline (§ 2c). If Seller does not receive Buyer's notice by said date, Buyer accepts title subject to such rights, if any, of third parties of which Buyer ha~ actual !m0wledge. c. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS TIIAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WlTIIlN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERViCING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCIt INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYER SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH INDEBTEDNESS, AND TIlE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES. In the event the Property is located within a special taxing distr]ct and Buyer desires to terminate tiffs contract as a result, if written notice is received by Seller on or before Off-Record Matters Objection Deadline (§ 2c), this contract shall then terminate. If Seller does not receive Buyer's notice by such date, Buyer accepts the effect of the Property's inclusion in such special taxing district(s) and waives the right to so terminate. d. Right to Cure. If Seller receives notice of uumerchantability of title or any other unsatisfactory title condition(s) or commitment terms as provided in § 8 a or b above, Seller shall use reasonable effort to correct said items and bear any nominal expense to correct the same prior to Closing. If such unsatisfactory title condition(s) are not corrected on or before Closing, this con~'act shall then terminate; provided, however, Buyer may, by written notice received by Seller; on or before Closing, waive objection to ~;uch items. e. Title Advisory. The Title Documents affect the title, ownership and use of the Property and should be reviewed carefully. Additionally, other matters not reflected/at the Title Documents may affect the title, ownership and use of the Property, including without limitation bbundar0, lines and encroachments,' area, zoning, unrecorded easements and claims of easemen~ts, leases and other unrecorded agreements, and various laws and governmental regulatious concerning land use, development and envh'oumental matters. THE SURFACE ESTATE MAY BE OWNED SEPARATELY FROM TIlE UNDERLYING MINERAL ESTATE, AND TRANSFER OF THE SURFACE ESTATE DOES NOT NECESSARILY INCLUDE TRANSFER OF THE MINERAL RIGHTS. THIRD PARTIES MAY HOLD INTERESTS IN OIL, GAS, OTHER MINERALS, GEOTHERMAL ENERGY OR WATER ON OR~ UNDER THE PROPERTY, WHiCFi INTERESTS MAY 'GIVE' THEM RIGHTS TO ENTER AND USE TIIE PROPERTY. Such matters may be excluded from the title insurance poli.cy. Buyer is advised to timely consult legal counsel with respect to all such matters as there are strict time limits provided in this contract (e.g., Title Objection Deadline [§ 2c] and Off-Record-Matters Objection Deadline [§ 2c]). No. CBS3-9-99. CONTRACT TO BUY AND SELL REAL ESTATE 03/14/03 9. LEAD-BASED PAINT. Unless exempt, if the improvements on the Property include cue or more residential dwelling(s) for which a building permit was issued prior to January 1, 1978, this contract shall be void unless a completed Lead-Based Paint Disclosure (Sales) form is signed by Seller and the required real estate licensee(s), which must occur prior to the parties signing this contract. 10. PROPERTY DISCLOSURE AND INSPECTION. On or before Seller's Property Disclosure Deadline (§ 2c), Seller agrees to provide Buyer with a written disclosure of adverse matters regarding the Property completed by Seller to the best of Seller's current actual knowledge. a. Inspection Objection Deadline. Buyer shall have the right to have inspection(s) of the physical condition of the Property and Inclusions, at Buyer's expense. If the physical condition of the Property or Inclusions is unsatisfactory in Buyer's subjective discretion, Buyer shall, on or before Inspection Objection Deadline (§ 2c): (1) notify Seller in writing that tlfis contract is terminated, or (2) provide Seller With a written description of any unsatisfactory physical condition which Buyer requires Seller to 6orrect (Notice to Correct). . .:: If written notice is not received by Seller on or before Inspection Objection Deadline (§ 2c), the physical condition of the Property and Inclusions shall be deemed to be satisfactory to Buyer. b. Resolution Deadline. If a Notice to Correct is received by Seller and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Resolution Deadline (§ 2c), this contract shall terminate one calendar day following the Resolution Deadline (§ 2c), unless before such termination Seller receives Buyer's written withdrawal of the Notice to Correct. e. Damage; Liens; Indemnity. Buyer ~s responsible for pay~nent for all inspections, surveys, ~ngineerlng reports or for any other work performed' at Buyer's request and shall pay for any damage whicb occurs to the Property and Inclusions as a result of such activities. Buyer shall not pemfit claims or liens of any kind against the Property for inspections, surveys, engineering reports and for any other work performed on the Property at Buyer's request. Buyer agrees to indemnify, protect and hold Seller harmless from and against any liability, damage, cost or expense incurred by Seller in connection with any such inspection, claim, or lien. This indemnity includes Seller's right to recover all costs and expenses incurred by Seller to enforce tlfis subsection, including Seller's reasonable ' attorney fees. The provisions of this subsection shall survive the termination of this contract. 11. CLOSING. Delivery of deed(s) from Seller to Buyer shall be at Closing (Closing). Closing shall be on the date specified as the Closing Date (§ 2c) or by mutual agreement at an earlier date. The hour and place of Closing shall be as designated by Pitkin County Title Company 12. TRANSFER OF TITLE. Subject to tender or payment at Closing as required herein and compliance b~ Buyer with the other terms and provisions hereof, Seller shall execute and deliver a good and sufficient Special Warantee deed to Buyer, at Closing, conveying the Property free and clear of all taxes except the general taxes for the year of Closing· Except' as provided herein, title shall be conveyed free and clear' of all' liens, including any governmental liens for special improvements installed as of the date of Buyer's signature hereon, whether assessed or not. Title shall be conveyed subject to: a. those specific Exceptions described by reference to recorded documents as r~flected in the Title Docmnents" accepted by Buyer in accordance with § 8a [Title Review], b. distribution utility easements, c. those specifically described rights of tlfird parties not shown by the public records of which Buyer has actual knowledge and which were accepted by Buyer in accordance with § 8b [Matters Not Shown by the Public Records], and d. inclusion of the Property witlfin ady'special taxing dlstfictl and e. the benefits and burdens of any declaration and party wall agreemenis, if any, and [. other 13. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall be paid at or before Closing from the proceeds of this transaction or from any other source. 14. CLOSING COSTS; DOCUMENTS AND SERVICES. Buyer and Seller shall pay, in Good Funds, their respective Closing costs and all other items required to be paid at Closing, except as otherwise provided herein. Buyer and Seller shall sign and complete all customary or reasonably required documents at or'before Closing. Fees for real estate Closing services shall be paid at Closing by X One-Half by Buyer and One-Half by Seller [] Buyer [] Seller [] Oth~r The local transfer tax of % of the Purchase Price shall be paid at Closing by [] Buyer [] Seller, Any sales and use tax that may accrue because of this transaction shall be paid when due by [] Buyer [] Seller. 15. PRORATIONS. The following shall be prorated to Closing Date, except as otherwise provided: a. Taxes. Personal property taxes, it' any, and general real estate taxes for the year of Closing, based on [] The Taxes for the Calendar Year Immediately Preceding Closing X The Most Recent Mill Levy and Most Recent Assessment [] Other b. Rents. Rents based on [] Rents Actually Received [] Accrued. Security deposits held by Seller shall be credited to Buyer. Seller shall assign all leases to Buyer and Buyer shall assume such leases. e. Other Prorations Water, sewer charges; and interest on continuing loan(s), if any; and d. Final Settlement. Unless otherwise agreed in writing, these pro~atlons shall be final· 16. POSSESSION. Possession of the Property shall be delivered to Buyer on Possession Date and Possession Time (§ 2~e), subject to the following lease(s) or ~enancy(s): If Seller, after Closing, fails to deliver possession as specified, Seller shall be subject to eviction and shall be additionally liable to Buyer for payment of $ per day from the Possession Date (§ 2c) until possession is delivered. 17. NOrg ASSIGNABLE. This contract, may be assigned in whole or parr to the City of Aspen. shall nc.t ~e 18. CONDITION OF, AND DAMAGE TO PROPERTY AND INCLUSIONS.' Except as otherwise provided in this contract, the Property, Inclusions or both shall be delivered in the condition existing as of the date of this contract, ordinary wear and tear excepted. Initial No. CBS3-9-99. CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND - FARM - RANCH) Page S of 8 03/14/03 a. Casualty; Insurance. In the event the Property or Inclusions shall be damaged by fire or other casualty prior to Closing, in an amount of not more than ten percent of the total Purchase Price, Seller shall be obligated to repair the same before the Closing Date (§ 2c). In the event such damage is not repaired within said time or if the damages exceed such sum. this contract may be tcm~inated at the option of Buyer by delivering to Seller written notice of termination. Should Buyer elect to carry out this contract despite such damage, Buyer shall be entitled to a credit, at Closing, for all the insurauce proceeds resulting from such damage to the Properly and Inclusions payable to Seller but not the owners' association, if any, plus the amount of any deductible provided for in such insurance policy, such credit not to exceed the total'Purchase Price. b. Damage; Inelusinnsl ServiCes. Should any Inclusion(s) or service(s) (including systems and c~mponents of the Property, e.g. heating, plumbing, etC.) fail or be datriaged between the date of this contract aud Closing or possession, whichever shall be earlier, then Sell6r shall be liable for the ¢6pair or replacement of such Inclusion(s) or service(s) with a unil of similar size, age and quality, or an equivalent credit, but only to the extent that the maintenance or replacement of such Inclusion(s), service(s) or fixture(s) is not the responsibility of the owners' association, if any, less 'any insurance proceeds received by Buyer covering such repair or replacement. The risk of loss for any damage to growing crops, by fee or other casualty, shall be borne by the party entitled to the growing crops, if any, as provided in § 3 and such paay shall be antitlcd to such insurance proceeds or benefits for the growing crops, if any. c. Walk-Through; Verifieatinu of Condition. Buyer, upon reasonable notice, shall have the right'to wall~ through the Propelty prior to Closing to verify that the physical condition of the Property and Inclusions complies with this contract. 19. RECOMMENDATION OF LEGAL AND TAX coUNSEL. By signing this document, Buyer and Seller acknowledge that the Selling Company or the Listing Company has advised that this document has important legal consequences and has recommended the examination of title and consultation with legal and tax or other counsel before signing this contract. 20. TIME OF ESSENCE AND REMEDIES. Time is ot' the essence hereof. If any note or check re~ei~d as Earnest Money hereunder or any other palanent due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed or waived as herein provided, there shall be the following remedies: a. If Buyer is in Default: [] ~,~ ~pe ............ aane,~. ~ql ..... ay c.a~, ,o treat-thee ccntract as-eon~s~,~, :- whi~~- ~se-.aTM ~;,-'n ms- ........... ~ ........ ~ ~ r, op ...... e ......ma7 ...... o treat-th ............... ~ ,n futl-fe._e and e~cat ang-Setle~ sh ............. o ...................... ar damages, [] (2) Liquidated Damages. All payments and things of value received hereunder shall be forfeited by Buyer and retained on behalf of Seller and both parties shall thereafter be released from all obligations hereunder. It is agreed that such payments and things of value are LIQUIDATED DAMAGES and (except as provided in subsection c) are SELLER'S SOLE AND ONLY REMEDY for Buyer's failure to perform the obligattons of this contract. Seller expressly waives the remedies of specific performance and additional damages. b. If Seller is in Default: Buyer may elect to treat 'this contract as canceled, itl which case all payments and things of value received hereunder shall be returned and Bu,)er may recover such damages as may be proper, or Buyer may elect to treat this contract as being in full force and effect and Buyer shall have the right to specific performance or damages, o!: both. c. Costs and Expenses. In the event of any arbitration or litigation relating to this contract, the arbitrator or court shall award to the prevailing party all reasunable costs and expenses, including attorney fees. 21. MEDIATION. If a dispme arises relating to tlfis contract, prior to or after Closing, and is not resolved, the parties shall frrst proceed in good faith to submit the matter to mediation. Mediation is a process in which the parties meet with an impartial person who helps to resolve the disp[~te informally and confidentially. Mediators cannot impose binding decisions. The parties to the dispute must agree before any settlement is binding. The parties will jointly appoiot an acceptable mediator and will share equally in the cost of such mediation. The mediation, unless otherwise agreed, shall terminate in the event the entire dispute is not resolved 30 calendar days from the date written notice requesting mediation is sent by one party to the other(s). This Section ~hall not alter any date in this contract, unless othersvise agreed. 22. EARNEST MONEY DISPUTE. Notwithstanding any termination of this contract, Buyer and Seller agree that, in the event of any controvel~y regarding the Earnest Money and things of value held by broker or Closing Company (unless mutual written instructions are received by the holder of the Earnest Muney and things of value), broker or Closing Company shall not be required to take any action but may await any proceeding, or at broker's or Closing Company's option and sole discretion, may interplead all partiek and deposit any moneys or things of value into a court of competent jurisdiction and shall recover court costs and reasonable attorney fees. 23. TERMINATION. In the event this contract is terminated, all payments and things of value' received hereunder shall be returned and the parties shall be relieved of all obligations hereunder, subject to §§ 10c, 21 and 22. 24. ADDITIONAL PROVisIONS.` '[The language of these additional provisioos has not been approved by the Colorado Real Estate Conmfission.) No. CBS3-9-99. CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND - FARM- RANCH) Phge 6 of 8 Initial ~ "" ::' 03/14/03 -.,. . entre con~act between ~e parties relating m the subject hereof, find any prior agreements pc~in~g thereto, .. whether oral or ~i~en, have been merged and integrated into t~s con~acL No subsequent modification of any of ' ';')' ~ .: tho te~ of t~s con~act shall be valid, b~d~g upon ~c panics, or enforceable u~ess made in writing and signed '.:~ ' ' by ~c paaics. Any obligation ~ this contract wlfich, by its te~, is intended to be perfo~ed a~e~ ter~nation or :~:~'~:' :..../' 26. FACSIMILE. Signa~res X May ~ ~ ~t be evidenced by facsi~le. Documents wi~ ~riginal -'" ' -:" :, ' ' -~.: .... - , ,-, : signatures s~]I bc provided to the other pa~ at Closing, or earlier upon request of any pa[~. ..: 27. NOTICE. Except for thc notice rcqacs~ng mediation described in fi 21, any notice to Buyer shall be effective .. ,,.. ~: .... -:? :, when received by Buyer or by Selling Company and any notice to Seller shall bc effective when received by ~eller ': .:: , . or Listing Company. ': .... -':. :]- L ~'}.:.": ':~ 28. NOTICE OF ACCEPT~CE; CO~TE~TS. TbS pr6posal shall expile u~ess accepted i~ -; .... by Buyer m~d Seller, as evidenced by their signa~es below, and the offer~g'pa~ receives notice of acceptance aL_. L.: ' - e Accept eptane Time (~ 2 accep ............ :7 .. pursuant to ~ 27 on or befor anee Deadline Date and Acc e Deadline c). if ted, ~is : ~ -? .:. -::, ~: .:.. . ...(~..,. document shall become a con,act between Seller and Buyci. A copy of t~s document ~y be executed by each :;:. ~/ .~:.: pa~, separately, and when each par~ has executed a copy thereo[ such copies taken together shall be deemed to be a ~11 and complete con,act between the panics. : Buyer Buy~ ~:~: ' D~t~B~r's S~r~ r~ / Date of Buyer's Signature: Dale L. Will, Director, Pikth~ Co~ Open Space & Trm{s : :.: Reco~ended for Approval (See Addenduml pp4) ..... Buyer's Address: ~' Buyer's Telephone No: Buyer's Fax No: ;:.:.: :~ ~TE: If this offer is beiug countered or rejeeied}'d0 not sign this document. Refer to } 29] '":' Date of Seller s Signa~re: /~ -o Date of Seller's Signa~e: Seller's Ad&ess: Seller's Telephone No: Seller's Fax No: ;; ~ 29. CO~TER; ~CTION. This offer is ~ Countered ~ RQeeted. Initials only of party ~uyer or Seller) who CouDtered or rQeeted offer END OF CONTACT J:J~ I Note: Closing Instructions should be signed ou or before Title Deadline. ............ .., agreca to coeperate ....... ~ ..,-~ ~-. ~saction aa ~ ~.~.. ~ ....... ~....* .... * ~ Seller Agen~b~:t ~ Dual A~t ~ Transaction ':~(.:: ~;'.~..~ '~ ~g Com~ny's compeller canxwAss!on ia t~e paig by: ~ ~uyer ~ SSler ~ ~Company 8e!!~ng C=mpany: . '. ' No. CBS3-9-99. CONT~ TO BUY ~D SELL ~AL E~ATE ~AC~T LAND - F~I- ~NCH) Page 7 of 8 ~ ' 8ellk:g Company's Te!eph:nz SM!Lng Company's Fax . ... · Li~tk~g Company: Nam: =f Company t~y: , ' t=bt-ie, g ..... t--,-: ..... t, hone No: Date Listkng Ccmpan:,,'s Fax Hz: No. CBS3-9-99. CONTRACT TO BUY AND SELL REAL ESTATE [VACANT LAND - FARM- RANCH) Page 8 0[8 Initial EXHIBIT "B" ADDENDUM 1 This Addendum is made a part of that certain Contract to Buy adb sell Real Estate (Va~:ant: La~'8) dated March_14, 2003 ("Contract") between Pitkin County Board of County Commissioners as buyer ("Buyer") and Music Associates of Aspen as seller ("Seller"), with respect to property known See Exhibit A, in the County of Pitkin ("Properly"). In the event of any conflict or inconsistency between the provisions of this Addendum and the Contract, the provisions of this Addendum shall govern and control. 1. Sale of TDR by Seller The Transferable Develooment Right (TDR) that is associated with the Property prior to the closing. The. Parties further agree that the Seller is to realize a total of $650,000 from the combined sales of the TDR and of the Property. Should the Seller desire to sell the TDR for less than $200,000,.written permission from the Buyer is required prior to the sale. If such permission is granted, the Buyer will credit the difference between the TDR sale price and $200,000 to the Seller at closing. Any amount over $200,000 realized by the Seller for the TDR will be credited against the purchase price at closing. If the Seller is unable to sell the TDR by the closing date, the Buyer will add $200,000 to the purchase price and the TDR will be placed in escrow at closing withthe proceeds of any subsequent sale accruing to the Buyer. 2. Improvement Survey. On or before the Off-Record Matters Deadline, Seller shall deliver to Buyer, , a current Improvement Survey of the Property certified by a licensed Colorado surveyor for the express benefit of Seller, Buyer and the Title Company, depicting all property corners, improvements, easements and rights of way, driveways, parking areas, walls, fences, encroachments on or off the Property, utility lines and utility installations, and restrictions of record. The Survey shall be provide~l at Seller's expense unless the cost of said survey exceeds $2000, in which case the Buyer shall pay for any amount in excess of $2000. The mprovement Survey shall be in fbrm and content sufficient to cause the title company to issue an endorsement to its title commitment agreeing to delete from Schedule B (Section 2) of its to-be-issued title policy standard printed exception Nos. 1,2, and 3 at not cost to Buyer. 3. Standard Schedule B-2 Exceptions. Seiler'~hall furnish to the Buyer at Seller's expense (not to exceed $50.00), an endorsement to delete standard exceptions 1-6 on Schedule B-2 of lhe Title Insurance Commitment; provided, however, that the owners policy of title insurance shall be subject to and shall list as an exception to title the road litigation described in paragraph 11 below.. 4. County Approval. Notwithstanding the signature hereto by the County Manager on behalf of Buyer, the obligation of Buyer to perform hereunder is expressly conditioned upon the adoption by Buyer of an ordinance authorizing the sale of the Property to Buyer pursuant to this Contract. In the event such ordinance is not duly adopted by Buyer within Sixty (60) days following the date of this Contract or any extension thereof as the parties may, in Writihg, agree, either Seller or Buyer may, upon written notice to the other, terminate this Contract whereupon Buyer shall be entitled to a prompt return of all Earnest Money paid. In the event such ordinance is timely adopted. Buyer shall, at the request Of Seller, re- execute this Contract by the signature of the Chairman or Vice-Chairman of the Pitkin County Board of County Commissioners. Reference ~s made to certain of the Dates and Deadlines appearing in Paragraph 2c. of the C'onf~ract as Item (a) The Date or Deadlines for Item Nos. 9, 11 and 13 shall be the later'0f the ~late i~icated in paragraph 2c or twenty (20) days following the effective date of the ordinance. (b) The Date or Deadlines for Item Nos. 12 and 14 sliall be the later of the date'in'dicated in paragraph 2c or thirty (30') days following the effective date of the ordinance. ' .... 6. Additional Documents. At Ci0sing, Seller shall execute arid deliver such documents as shall be necessary to transfer and convey the Property to Buyer, free and dear of all liens and encumbrances; all right, title and interest of Seller. 6. Brokerage. Each of Seller and Buyer represent and warrant that said party has dealt with no other brokers or salespersons in connection with this transaction and each party agrees that in the event of any claim by any broker or salesperson who may have rendered services in connection with this transaction at the request of such party or with the knowledge or consent of such party, then such party shall defend, hold harmless and indemnify the other party 'against such claims and all costs and expenses (Including reasonable attorneys' fees and court costs), liabilities and judgments resulting therefrom. 7. Interest on Earnest Money. Any and all monies paid by Buyer prior to closing shall be placeB ir~'an insured, interest bearing money market-type .account with a local commercial bank with all interest thereon to accrue for the' benefit of Buyer. Whether or not Buyer shall ever be in defaul! under "this Contract resulting in a forfeiture of its earnest money, Buyer shall nevertheless be entitled to retain, as its sole and separate property, all interest earned on said earnest money. 8. Notices. Any notice, demand or document Which either party is required or may desire tO givel - deliver or make to the other party shall be in'writing and shall be personally delivered or given by facsimile transmission or given by United States certified mail, return receipt requested, addressed as follows: To Buyer: With copy to: To Seller: With copy to: Pitkin County, ColOrado 530 East Main Street, 3rd Floor ,,Aspen, CO 81611 .Facsimile NO.: (970) 920-5198 John Ely, county Att0mey Pitkin County, Colorado 530 East Main Street Aspen, CO 81611 Facsimile No.: (970) 920-5198 Music Associates of Aspen 2 Musi~ School Road Aspen, Colorado 81612 Al Dietsch · PO Box 128 W Woody Creek, CO 81656 . Any notice, demand or document 'Sd given, delivered or made by United Stales mail shall be deemed to have been given three [3) days after the same ~s deposited in the United States mail as certified matter, addressed as above provided, with postage thereon fully prepaid. Notice by facsimile transmission shall be deemed given upon receipt of a confirmation by sender and notice.by personal delivery shall be deemed given when received. 03~14/03 Miscellaneous. ' (a) Saturday. Sunday or H~lid~y, If ar~y ti~e in this Contract shall end 'on a Saturday, Sunday or legal holiday, Such time period shall automatically be extended to the first regular business day thereafter. (b) Controlling Law. This Contract shall be construed in accordance With and governed by the laws of the State of Colorado The part es hereto agree and n/end that the proper and exclusive forum for ar~y iitiga{i0n Of any disputes or controversies arising out of or related to this Contract Shall I~e the District Court for Pitkin County, Colorado.' For purposes of any litigation, the parties consent to the chosen forum for purposes of jurisdiction and venue. (c) Counterparts. This Contract [or any amendments, m°difi~atio~s Or extensions her;'o~) n~ay be executed in several counterparts and, after execution and as executed, shall constitute an agreement binding on all of the parties, notwithstanding that ali of the parties are not signatories to the original or the same counterpart. (d) Further Assurances. Each of the parties agree to execute, acknowledge, deli~ei, file and record, or cause to be executed, acknowledged, delivered, filed and recorded such further instruments and documents and such certificates, and to do all things and acts as the other party may reasonably require in order to carry out'the intentions of this Contract and the transaction contemplated hereby. !::' ?i:;.~i'ii::. :. · .: (e) Survval A of the Warranties and ~'eprese~tatonS Contained n th s COntract Of a~'~ng0ing . :... ..... na~'intended to sur~K,e siiall ~urvive the actual closing of the transaction contemplated .:' . thereby. ; (f) Construct on. No provision'of this Contract si~all be construed against or interpreted to the '. .- disadvantage of any party by reason of such party having or being deemed to have requested, .; ..:: ' ' drafted, required or structured such provision. It is the intention of the parties that the party who .... employed the scrivener to prepar~ this Contract not be prejudiced by virtue of such act, nor shall ' ;' tilts Contract be construed' against such party by virtue of its actions In retaining the scrivener. (g) Attorneys' Fees. In the event of any action for breach of, to enforce the provisions of, or ~ otherWise involving this Contract, the coud in such action shall award a reasonable sum as attorneys' fees to the party who, in light of the issues litigated and the court's decision on those ........ issues, was the prevailing party in the action. If a party voluntarily dismisses an action, a reasonable sum as attorneys' fees shall be awarded to the other party. 10. Assignment Notwithstanding Paragraph 17, Buyer and Seller agree tJ~at [~ii$'Agreen~ent may 'be assigned to the City of Aspen, in whole or part, to allow the City to acquire a joint or other interest in the Property. 11. Buyer to Take Title Subject to Existing Road Litigation.. At closin.q, Buyer shall tak~ title to the Property subiect to lhe existing liti.qation brouqht by the Pitkin County Board of County Commissioners a.qainst landowners on Smu.qgler Mountain re.qardin.q the ownership and legal Ctatus of the Smugqler Mountain Road and the land underlying it. In this regard, at closin.q, Seller and Buyer shall enter into appropriate ioint stipulations and motions to provide for Buyer's dismissal from the case with preiudice.