HomeMy WebLinkAboutresolution.council.083-98
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RESOLUTION NO. ~3
Series of 1998
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A
CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND THE
SMUGGLER HUNTER TRUST, WITH ELIZABETH ALEY AS SOLE
TRUSTEE, FOR THE PURCHASE OF LAND FOR A PARK TO BE LOCATED
AT 0002 WILLIAMS WAY, ASPEN, COLORADO.
WHEREAS, Council previously authorized staff to enter into a contract with the
Smuggler Hunter Trust, with Elizabeth Aley as sole trustee, for the purchase of land
for a neighborhood park at 0002 Williams Way, a copy of which contract is annexed
hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
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CITY OF ASPEN, COLORADO:
Section One
That the City Council of the City of Aspen hereby approves the contract between the
City of Aspen, Colorado, and the Smuggler Hunter Trust, with Elizabeth Aleyas sole
trustee, a copy of which is annexed hereto and incorporated herein.
Dated this ~ day of November, 1998.
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I, Kathryn S. Koch, duly appointed and acting Cit &-~fY 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 November ~ 1998.
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CONTRACT.TUBVY AND SELL REAL, ESTATE
. VACANT LAND
'I. PARTIES AND PROPERTY:' The City of Aspen, Colorado, hereinafter referred
to as "Buyer," agrees to buy and Smuggler Hunter Trust, with ~lizabeth Aley as sole
trustee, hereinafter referred to as "Seller," agrees \0 sell, contingent on the terms and
conditions set forth in this contract, the following described real estate in the County
of Pitkin, State of Colorado:
See the legal description set forth in Exhibit "A" attached hereto and incorporated
herein by reference.
The real estate is further known as the open space parcel located at 0002 Williams Way,
Aspen, Colorado 81611. The sale includes all interest of the Seller in vacated streets
and alleys adjacent lhereto and all easements and other appurtenances thereto, except
as expressly excluded herein. .
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2. PURCHASE PRICE AND TERMS: The purchase price shall be one hundred -
and seventy"fivethousap.d dollars ($175,000.00), payable in United States dollars by
Buyer as .follows:
Cash at closing: One hundred seventy-five thousand dollars ($175,000.00) to be paid
by Buyer at closing in funds which comply with all applicable Colorado laws.
, 3. CONDITIONS: The contract to buy and sell is subject to the following conditions:
a. . The Buyer is purchasing the property for the purpose of creating a neighborhood city
park which shall be perpetually deed restricted for such purpose by the
conveyance to be made herein, ~ubjectto the "rule against perpetuities,"
and shall be deed restricted for a period of ten (10) years as a passive park which
shall emphasize usage by small children and families and which may be equipped
with picnic tables and playground equipment. During the ten (10) year period,
no volleyball, skateboard, or basketball facility shall. be provided in the park. Any
toilet facility shall be screened from view of the Seller's residence located at
0002 Williams Way, Aspen, Colorado.
b. The Buyer shall provide no more than four (4) additional parking spaces off of
Spruce Street for city park purposes, including one handicapped parking space.
The north end of the city park shall not provide fOf'any motor vehicle
parking off of Williams Way.
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c. The north end of the city park shall be screened from the Seller's house by
landscaping such as trees and shrubs.
d. A condition of closing'shall be the approval of the subdivision of Seller's property
to be conveyed and used for park'purposes hereunder in accordance with all Aspen
City Code provisions. The Seller shall apply for the subdivision. The Buyer shall
waive all city fees in connection with th\l application. A further condition of this
contract shall be that the Seller's remaining property after the closing of the contract
shall be a legal lot (minimum 27,001 sq. ft.) pursuant to the RlMFA zoning district.
If the subdivision process is not completed by December 3 I, 199'8, this contract may,
be deemed null and void without penalty at the option of the Seller or the Buyer.
e. A further condition of this contract that the Seller obtain the removal by
Pitkin County, Colorado, of the open space deed restriction described in the
Improvement ilnd Development Deed Restriction dated November II, 1993, and
recorded in Book 731 at Page 218 in the office of the Clerk and Recorder of Pitkin
County, a cqpy of which is attached hereto as Exhibit "B." Unless such restriction
is removed Mfore December 31. 1998, this contract may be deemed null and void
without penalty at the option of the Seller or the Buyer.
f. The Seller shall execute and deliver at closing a perpetual easement for the city'
park in the fortn.attached hereto as Exhibii"C'; covering that portion of the Seller's
remaining property lying on the south side of Williams Way. '
. g.. Prior to closing and delivery of the deed and easement her\lunger, Buyer. shall obtain,
at its sole cost and expense, survey descriptions for the property and the easement,
which shall be substituted for the descriptions used in Exhibit "A" and Schedule
"I" of Exhibit "c" of this contract. '
h. This contract shall be governed by and construed in accordance with the laws of the
State of Colorado. .
i. The Aspen City Council must approve this contract before the authorized officials,
of the City can acc((pt the same.
j. All covenants of this contract required to be performed by the Buyer shall survive
the dosing and be specifically enforceable thereafter.
k. Unless otherwise provided herein, all notices and information required herein shall
be deemed to have been properly given or transmitted if and when deposited, certified'
and postage prepaid, in the United States mail or transmitted by facsimile, addressed
to the, parties at the addresses and to the attention of the representatives indicated
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below:
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Buyer: City Attorney
City of Aspen
130 South Galena
Aspen, CO 81611
(970) 920-50S5 (telephone)
(970)920-S119 (fax)
Seller: Maxwell Aley
Attorneyat Law
No.2 Williams Way
Aspen, CO 81611
(97D) 925-5376 (teleph(:me and fax)
Either party may'change its address for purpoSes of this agreement by giving written
notice to the other party in accordance with the provisions of this paragraph.
1. If an action is brought to enforce any obligation herein, or if an action is brought
as a res\llt of any breach of a representation or warranty set forth herein, the
prevailing party shall be entitled to recover'such costs and expenses as may have
been properly incurred by the party in enforcing his or her'rigl\ts herein, including
but not limited to reasonable attorneys fees, costs of suit, and costs of any appeal.
The term action shall be deemed to include any alternative dispute resolution. '
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m. In any event, if this contract is not closed by December 31, 1998, Seller may
terminate this contract by giving notice to Buyer.
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4. NOT ASSIGNABLE:' This contract shall not be assignable by Buyer without Seller's
written consent . Except as so restricted, this contract shall inure to the benefit
of and be binding upon the heirs, personal representativ~s, successors and assigns of
the parties. '
'5. EVIDENCE OF TITLE: Seller shall furnish to Buyer, at Seller's expense, either
a current commitment for owner's title insurance policy in an amount equal to the
purchase price or at Seller's choice an abstract of title certified to a current date, on or
before five days after City Council approval of the contract ("title deadline"). If a title
insurance commitment is furnished, Buyer may require of Seller that copies of
instruments (or abstracts of instruments) listed in the schedule of exceptions in the title
insurance commitment ,also be furnished to Buyer atSeller's expense. This requirement
shall pertain only to instruments shown of record in the Office of the Clerk and Recorder
of Pitkin County"Colorado. The title insurance commitment, together wIth any copies or
abstracts of instrumellts furnished pursuant to this section constitute the "title
documents." Buyer must require Seller in writing to furnish copies of abstracts of
instruments listed in the schedule of exceptions no later than ten (10) calendar days after,
the title deadline. If ,Selhir furnishes a title insurance commitment, Seller will pay the
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r' premium at closing and have the title insurance policy delivered to Buyer as soon as
practicable after closing.
6. TITLE:
a. Title Review: Buyer shall have tJ:1e fight t6 inspect the title documents or abstract.'
Written notice by Buyer of unmerchantability of title or of any other unsatisfactory
title condition shown by the title documents or abstract shall be signed by or on
behal(of Buyer and given to Seller on or before ten calendar, days after the title
deadline, or within ten (10) calendar days after receipt by Buyer of any title document
. or endorsement adding new exceptions to the title commitment together with a copy
of the title document adding newexceptions to title. If ~eller does not receive Buyer's
notice by the date specified above, Buyer accepts the condition of title as
disclosed by the fitle documents as satisfactory. .
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b. Matters Not Shown by the Public Records: Seller shall deliver to Buyer on or
before the title deadline true copies of all leases and surveys in Seller's possession
pertaining to the property and' shall di~close to Buyer all easements, liens, or other
title matters not shown by the public records of which Seller has knowledge. Buyer
shall have the right to inspect the property to determine if any third party has any right'
in the property not shown by public records. ,Written notice of any unsatisfactory
condition disclosed by Seller or revealed by such inspection shall be signed by or '
on behalf of Buyer and given to SeHer on or before ten calendar days after receipt by
Buyer gf any title matter not shown by the public records. 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 has actual knowledge.
c. . Special Taxing Districts: Special' taxing'districts may be subject to general
obligation indebtedness that is paid by revenues produced from annual tax levies
on the taxable prop~rty within such districts. Property owners in such distriCts ~ay
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 such indebtedness without such an increase in mill
levies. Buyer shouldinvestigate the debt firtancing requirements of the authorized
general obligation indebtedness of such districts, existing mill levies of such district
servicing such indebtedness, and the potential fOr an increase in such mill levies,
. .
In the event the property is located within a special taxing district and Buyer desires
to terminate this contract as a result, if written notice is givento Se11er on or before
the date set forth in subsection 6, this contract shall then terminate.
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d. Right to Cure: If Seller receives notice of unmerchantability of title or any other
unsatisfactory title condition as provided in subsections a and b above, Seller
shall use reasonable effort to correct said unsatisfaCtory title condition prior to the
date of clo,sing. If Seller fails to coirect unsatisfactory title conditions on or before
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the date of closing, this contract shall then terminate, provided, however, that Buyer
may by written notice received by Seller, on or before closing, waive any objection
to said unsatisfactory title condition.
7. DATE OF CLOSING: The date of closing shall be by rimtual agreement but not
later than December 31, 1998.
8. TRANSFER OF TITLE: Subject to tender of payment at closing as required herein
and compliance by Buyer with the other terms and provisions hereof, Seller shall execute
and' deliver a good and sufficient special warranty deed to Buyer on closing, conveying
the property free and clear of all taxes except the general taxes for the year of closing. '
Title shall be conveyed free and clear of all liens for special improvements installed as of
the date of buyer's signatures hereon, whether assessed or not.
9. PAYMENT OF ENCUMBRANCES: Any encumbrance required to be paid shaH be
paid at or before closing from the proceeds of this transaction or from any other source.
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10. 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 c011;1plete all
customary or required documents at or before closing. Fees for real, estate closing
services shall not exceed three hundred dollars ($300.00) and shall be paid at closing one
half by Buyer and one half by Seller. Any local transfer tax shall be paid by Seller. Any
, . sales and use tax that may accrue because of this transaction shall be paid when due by
Seller.
11. PRORATIONS: General taxes for the year of closing, based on the taxes for the
calendar year immediately preceding closing, if any shall be prorated to date of closing:
12. POSSESSION: Possession ofthe property shall be delivered to Buyer on delivery of
,deed. If seller after closing fails to deliver possession on the date herein specified
the Seller shall be subject to eviction and shall be additionally liable tg the Buyer for
payment of$2S0 per day from the date of agreed possession until possession is
delivered.
'13. CONDITION AND DAMAGE TO PROPERTY: Except as otherwise provided in
,this contract, the property and inclusions shall be delivered the condition existing as of
the date of the contract,. hI the event the property shall be damaged by fire or other
casualty prior to time of closing, Seller shall be obligated to repair tlie same before the
date of closing. If thep'roperty cannot be returned to its original state, the BUY'ir may elect
to cancel this contract.
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14. TIME OF ESSENCE/REMEDIES: Time is of the essence hereof. . If any note or
check received as eamest money then:mnder or any other payment due hereunder is not
paid, honored or tendered when due, or if any other obligation hereunder is not performed
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f""'\.. or waived as herein provided, there shall be the following remedies:
a. If Buyer is in default: Specific performance. Seller may elect to treat this contract
as canceled, in which case all payments and things of value received hereunder sl:)all be
forfeited and retained on behalf of Seller, and Seller may recQver such damages as may
be'.proper, or Seller may elect to treat this contract a~ being in full force and effect and
Seller shall have' the right to specific performance or damages or both.
b. If Seller is in default: ,Buyer may elect to treat this contract as canceled in which.
case all payments and things of value received hereunder shall be returned and Buyer
may recover such damages as may be proper, or Buyer may elect 10 treat this contract
as being in full force and effect and buyer shall have the right to specific performance
or damages or both. .
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c. Costs and expenses: Anything to the contrary herein notwithstanding, in the event' .
of any arbitration or litigation arising out of this contract, the arbitrator or court shall
award,to the prevailing party all reasonable costs and expenses, including attorney fees.
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15. RECOMMENDATION OF LJj;GAL'COPNSEL: By signing this document buyer
and seller acknowledge that this document has important legal consequences apd has
recommended the examination of title and consultation with legal counsel before signing
the contract.
16. MODIFICATION,OFTHIS CONTRACT: No subseqUent modifications of any
of the terms of this contract shall be valid, binding upon the parties, or enforceable unless
made in writing and signed by the parties.
17. ENTIRE AGREEMENT: This contract constitutes the entire contract between the
parties relating to the subject matter hereof, and any prior agreements pertaining thereto'
whether oral or written have been merged and integrated into this contract.
~ ~CITYO
ATTEST:' .) . ' . BY: "
. Kat"ryn Ko .... . .~my
City Clerk . City,
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SMUGGLER HUNTER TRUST
BY:~O'~v~-f\Q1---~ -~~- q p
Eliza e Aley .
Sole Trustee. .' .
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EXHIBIT "A"
Attached to and made a part of
that certain Vacant Land Farm and
Ranch Contract to Buy and Sell Real
Estate dated September 4, 1997 between
The City of Aspen, as Buyer, and
Smuggler Hunter Trust, as Seller
PROPERTY DESCRIPTION
That portion of the following described property lying South
of an I!:ast-West line delineating the northerly portion thereof
comprising a 27,001 sq. ft. legal minimum lot per the City of Aspen
R/MFA Zoning District, to wit:
A parcel of land situated in the Southeast 1/4 of Section 7,
Township 10 South, Range 84 West of the 6th P.M., Pitkin
county, Colorado. being more fully described as follows:
Beginning at a point whence a 1954 brass cap set for the
Center 1/4 Corner of said Section 7 bears N. 19.16'09" W.
250.79 feet,
thence S. 88.48'36" E. 139 feet;
thence S. 01.02'42" W. 316.~i feet,
thence N. 88.48'36" W. 135.99 feet;
thence N. 00.30'00" E. 316.83 feet to the point of beginning;
Also known as 0002 Williams Way, Aspen CO 81611
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IMPROVEMENT AND DEVELOPMENT DEED'RE$'I'RICTION
1Ylr... This Improvement and Development Deed Restricti~n:is made a~d entered into this
, J..c.:. day of V\oJe.w.. ~ 1993 between the PItkin County Board of County
, Commissioners ("Grantor") and the Smuggler Hunter 'i'rust, a trust registered in Pitkin
County District Court as Case No. 88 PR 16 ("Grantee").
RECITAT .'\
Whereas, the Grantor is the owner of certain real property j~Cated in Pitkin County,
more' fully described in the Special Warranty Deed to which this, Deed Restriction is
attached as ~ibit C ("Property"); and ' , , ' .
, Whereas;' Grantor wishes to convey and Grantee wishes to accept the Property
pursuant to a Real Property Exchange Contract between the parties which provides that
improvements and development will be prohibited on that portion of the property lying
, South ofy,'illiams Way. .
NOW TIffiREFORE, in consideration of Ten Dollars and the further consideration
, supporting' the attached Special Warranty Deed, the sufficiency of which is hereby
acknowledged, Grantor and Grantee represent, covenant and' agree as follows:
1. Grantee, itS succ'essors and 'assigns is prohibited, enjoined and forever barred
. from' constructing or allowing 10 be constructed, any stiuclures,buiJdings, improven+ents,
or faciliti~s of any k;ind or nature, or any development, as development is defined In We
Pitidn County Land Use' Code, including but not limited to fencing, on the Souwerly 185
,feet' of ,we Property. Grantee is' allowed, however, to landscape wiw vegetation and to
construct 'and 'maintain gardens on the Southerly 185 feet of the Property.
2.. ,The parties hereto may supplement the above description, of tJ:te Property
with a" certified survey prepared at a later date exhibiting. and detailing' that aU
. construction, buildings, improvements or facilities" of any kind or nature, or development,
, as deveiopment is defined in the Pitkin County Land Use Code; is prohibited from the
portion o.f the Property' located South of Williams Way.
, 3. .:' '!'his Deed Restriction shall constitute covenants running with the real
property as i. burden thereo'n, for the benefit of, and shall be specifically enforceable by,
the Pitkln County Board of County Commissioners, and its successors and assigns, as
applicable, by any appropriate legal action, including but not limited td) injunction)
abatement, reversion) specific performarice, or eviction;
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4. ' There is hereby rcsetvcQ to the Partics hereto any SIld all remedieS providcQ
by law. for breac;h of this Agreement and Deed Restriction or any of its terms. In the
event the Parties resort to litigation with respect to any or all provisions of this Agreement
and Deed Restriction, the prevailing party shall be entitled to recover damages and costs,
including reasonable attorney's fees.
S. . The provisions and covenants conlained herein shall inure to and be binding '.
'upQn thehe/rs. successors and assigns of the Grantor and Grantee. .
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, 6. No clai~ of waiver, consent ~r acquiescence with respect to any provision
of this, Agreement and Deed Restriction shall be valid against llny party hereto except on
the basis of a written instrument executed by the parties to this Agreement and Deed
Restriction. " " ,
7. ,Grantee' agrees that it shall be personally liable for' any of violation of the
. provisions herein. The term "Grantee" shall mean the person or persons who shall acquire
,an' ownership interest in the Property in compliance with the terms and' provisions of this
Agreement and Deed Restriction; it being understood that such person or persons shall
. be deemed the "Grantee" hereunder only during the period of his or her ownership
interest in the Property and. shall' be obligated hereunder for the full. and complete
performance and observance of .all covenants, conditions and restrictions coDtained herein
during such period. ' '.. \ ,
r-. In witness hereof. the Parties hereto have executed this instrument on the day and
, year Erst written.
Gnultor
Pitkin County Board of unty Commissioners
By:
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STATE OF COLORADO )
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COUNTY OF PITXIN ) ,
. . The foregoing was a~knowledged before me this ~ day of ~wcw... ~
~ '1993, byp.;ll1L;ite Q;5 a..v..rr.~ of-fu 'PDCC-,
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Attached to and made a part of that
certain Vacant Land Farm and Ranch
Contract to Buy and SelI Real Estate
dated September 4, 1997 between The City
of Asp~n, as Buyer, and Smuggler Hunter'
Trust, as SeHer.
EASEMENT AGREEMENT
THIS AGREEMENT made this day of , 1997, between THE
CITY OF ASPEN. COLORADO, a municipal corporation (hereinafter "City"), and
SMUGGLER HUNTER TRUST, a revocable trust, acting through its sole trustee,
Elizabeth Aley (hereinafter "Trust").
WHEREAS, Trust is the owner in fee simple title of the real property described
in Schedule "1" attached hereto and incorporated herein by reference (hereinafter calIed
the "Property"); and
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WHEREAS, the City wishes to acquire the subject easement for the purposes of
creating and utilizing the same as part of a neighborhood park in connection with other
real estate conveyed simultaneously by Trust to City.
NOW, THEREFORE, for and in consideration of the sum ofTen ($10.00) DolIars
and other good and valuable considerations, receipt whereof is hereby acknowledged by
Trust, the Trust hereby does grant, bargain, selI, convey and assign to City a perpetual
and exclusive easement in, to, upon and over the Property, subject, however, to that
certain Permanent Access and Utility Easement from Pitkin County to Pitkin County
recorded February 14, 1993 in Book 669 at Page 420.
This easement is perpetually restricted to use as a neighborhood park and, in
addition, restricted for a period of ten (10) years as part of a passive park with emphasis
on smaIl child and family usage equipped only with picnic tables and playground
equipment without any provision made to create a volIeyball, skateboard or baseball
facility, and any toilet facility shall be screened from view from Trust's residence
property across the street.
No motor vehicle parking shall be permitted on the Property and landscape
screening shalI beinstalIed and maintained on the North side of the Property but not to
exceed a height of ten (10) feet.
The City covenants with the Trust, its successors, assigns, and legal
r, representatives; that it shalI bear fulI responsibility for the use and enjoyment of this
easement and shall save and hold Trust, its successors, assigns, and legal representatives,
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harmless from any claim of damages to person or premises resulting from the use,
,~ occupancy and possession of the same by the City and the public.
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All covenants and conditions of this agreement shall be specifically enforceable,
as applicable, by any appropriate legal action, including but not limited to injunction,
abatement, specific enforcement, reversion, or eviction after thirty (30) day written
notice. In the event that the parties resort to litigation or alternative dispute resolution,
the prevailing party shall be entitled to recover damages and costs, including reasonable
attorneys' fees
No claim of waiver, consent or acquiescence with respect to any provision of this
agreement shall be valid against Trust, except on the basis of a written instrument,
executed and accepted by Trust.
TO HA VE AND TO HOLD the said easement unto City, its successors and assigns
forever.
The provisions and covenants h~reof shall inure to and be binding upon the parties,
their successors, assigns, heirs, and legal representatives.
IN WITNESS WHEREOF, the parties have executed this instrument the day and
year first above written.
SMUGGLER HUNTER TRUST
THE CITY OF ASPEN, COLORADO
By ~ 15~.
John Bean , Mayor
By
Elizabeth Aley,
Sole Trustee
ATTEST:
By
Kathryn Koch
Aspen City Clerk
ale\easement.k
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SCHEDULJ "1 "
Attached to and made a part of
that certain ~acant Land Farm and
Ranch Contract to Buy and Sell Real
Estate dated September 4, 1997 between
The City of Aspen, as Buyer, and
Smuggler Hunter Trust, as Seller
EASEMENT DESCRIPTION
That portion of the following described property lying between
the South line of the City of Aspen street called "Williams Way"
and North of an East-West line delineating the northerly portion of
the following described property comprising a 27,001 sq. ft. legal
minimum lot per the City of Aspen RfMFA Zoning District, to wit:
A parcel of land situated in the Southeast 1/4 of Section 7,
Township 10 South,. Range 84. West of the 6th P.M., pitkin
County, Colorado. being more fully described as follows:
Beginning at a point whence a 1954 brass
Center 1/4 Corner of said Section 7 bears
.250.79 feet;
thence S. 88.48'36" E.
thence S. 01.02'42" W.
thence N. 88.48'36" W.
thence N. 00.30'00" E.
cap set for the
N. 19.16'09" W.
139 feet;
316.81 feet;
135.99 feet;
316.83 feet to
the point of begi~ning;
Also known as 0002 williams Way, Aspen CO 81611
aley\1lati:sale\schedule.l