HomeMy WebLinkAboutresolution.council.066-99
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RESOLUTION NO. b L
Series of 1999
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT TO
BUY AND SELL REAL ESTATE BETWEEN THE CITY OF ASPEN, COLORADO, AND
BURLINGAME SEASONAL HOUSING, INC., AND AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID DOCUMENT(S) 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 between the City of Aspen, Colorado and Burlingame Seasonal Housing, Inc., a copy of
which contract is annexed hereto and made a part thereof; and
WHEREAS, the electors ofthe City of Aspen at the May 4, 1999,election approved a ballot
measure authorizing the City Council to sell the property which is the subject of the Contract to Buy
and Sell Real Estate for construction of an affordable housing project.
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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 that Contract to Buy and Sell
Real Estate between the City of Aspen, Colorado, and Burlingame Seasonal Housing, Inc. a copy of
which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of
the City of Aspen to execute said contract and all other related documents necessary to consummate
the contemplated transaction on behalf of the City of Aspen.
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I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
solution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held
JPW-OB/04/99-G:\john\word\resos\MAA-reso-K.doc
,1999.
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CONTRACT TO BUY AND SELL REAL ESTATE
DATE:
,1999
I. Parties and Property. BURLINGAME SEASONAL HOUSING, INC., a Colorado
non-profit corporation, (the "Purchaser"), agrees to buy, and THE CITY OF ASPEN, a Colorado
municipal corporation (the "Seller") agrees to sell, on the terms and conditions set forth below, the
following-described tract of real estate located in Pitkin County, Colorado, to-wit:
See Exhibit A, attached hereto and incorporated
herein by reference.
The real estate shall be conveyed together with all of Seller's interest in all easements and
rights of way appurtenant thereto, and all mineral rights owned by the Seller appurtenant thereto,
collectively referred to herein as the "Property".
2. Purchase Price and Terms. The purchase price for the Property shall be
$615,000.00, payable through the Title Company (as hereinafter defined) as follows:
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(A) Earnest Money Deposit. Not later than five (5) business days after
acceptance of this Contract by Seller, Purchaser shall deposit with Pitkin County Title, Inc.
("Title Company") the amount of$l ,000.00 via wire transfer to the Title Company's escrow
account. The earnest money deposit will be held in trust by the Title Company, as escrow
agent. The eamest money shall be deposited in an interest-bearing account, and all interest
shall accrue to the Purchaser. If closing occurs, the eamest money shall be applied as part
payment of the purchase price.
(B) Pavment of Purchase Price. The Purchase Price, less any amount paid as
earnest money, shall be payable on the Date of Closing in the form of a promissory note in
a form and substance reasonably acceptable to Seller. The promissory note shall be due and
payable, without interest, within thirty (30) days following the issuance of a Certificate of
Occupancy upon completion of the Burlingame Project (as hereinafter defined).
3. Evidence ofTitIe. Seller shall furnish to Purchaser, at Seller's sole cost and expense,
a current AL T A commitment for title insurance on the Property from the Title Company, with all
standard exceptions deleted, and in an amount equal to the purchase price, together with copies of
all instruments listed in the schedule of exceptions of said title insurance commitment, including all
declarations and covenants, within twenty (20) days following the effective date of this Contract.
The title insurance commitment, together with any copies of all instruments furnished pursuant to
this Paragraph, shall constitute the title documents.
4. Survev. At its expense, Purchaser may undertake to survey the Property, a copy of
which will be delivered by Seller to Purchaser.
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5. Merchantable Title and Cure of Defects. Title shall be merchantable in Seller. If
title is not merchantable, in Purchaser's sole and absolute discretion, and written notice of defect(s)
is given by Purchaser or Purchaser's agent to Seller or Seller's agent on or before the thirtieth (30th)
day following delivery of the title documents referred to in Paragraph 3, above, Seller shall undertake
reasonable efforts to correct said defect(s). If title is not rendered merchantable to Purchaser's
satisfaction, in Purchaser's sole discretion, on or before the end of the due diligence and inspection
period as described in Paragraph 8 (A), below, then at Purchaser's option, Purchaser may accept the
title as Seller is able to deliver or the Purchaser may declare this Contract to be null and void and of
no effect, whereupon each party hereto shall be released from all obligations hereunder, and the
earnest money and all payments and things of value received hereunder shall be returned forthwith
to Purchaser. In the event that no notice is given to the Seller within the time frame set forth herein,
title to the Property shall be deemed to be merchantable.
6. Matters Not Shown bv the Public Records. Seller shall deliver to Purchaser, within
twenty (20) days following the effective date of this Contract, true copies of alllease(s) and survey( s)
in Seller's possession pertaining to the Property, and shall disclose to Purchaser all easements, liens
or other title matters not shown by the public records or the title documents of which Seller had, or
in the exercise of reasonable care should have had, actual knowledge. All such matters shall be
subject to Purchaser's approval and right to object as provided in Paragraph 5, above. Purchaser shall
have the right to inspect the Property to determine if any third party has any right in the Property not
shown by the public records (such as an unrecorded easement, unrecorded lease, or boundary line
discrepancy); but such inspection shall not alleviate Seller's obligations hereunder to deliver the
Property free and clear of all parties in possession. Seller assumes full responsibility hereunder for
remedying and/or indemnifying Purchaser for any costs, losses, or damages suffered as a result of
Seller's failure to disclose any encumbrance or defect oftitle not shown by the public records or the
title documents of which Seller has, or in the exercise of reasonable care should have had, actual
knowledge.
7. Covenants. Representations and Warranties of Seller. Seller hereby covenants,
represents and warrants to Purchaser the following, all of which shall be true, accurate and complete
as of the date hereof and shall survive the closing:
(A) Status and Authority. The Seller has the right, legal capacity and authority
to enter into and perform its obligations under this Contract, and the documents to be
executed and delivered pursuant hereto.
(B) No Liabilities. Prior to or at the time of closing, Seller shall pay, make
adequate provision for payment of, or otherwise secure the release of, every debt, account
payable, liability or obligation of any nature whatsoever, contingent or otherwise, that is, or
could become, a lien or other encumbrance against the Property.
(C) Use ofProDertv Pendin~ Closin~. Between the date of this Contract and the
closing date, Seller:
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(1) shall not dispose of any interest in the Property, and shall not
mortgage, pledge or subject to lien or other encumbrance any interest in the Property;
(2) shall conduct all operations affecting the Property in the ordinary
course of business, and in the manner that the operation(s) have been conducted to
date; and
(3) shall not knowingly permit the Property to be used or operated in any
manner that would be in violation of any local, state, or federal law or regulation.
(D) No Other Contracts. There are no other contracts or agreements, oral or
written, except as described in the title commitment, which affect the Property which will
survive closing.
8. Conditions Precedent to Purchaser's Performance. Purchaser's obligation to
purchase the Property pursuant to the terms of this Contract is expressly made contingent upon and
subject to the following conditions precedent:
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(A) Execution of Development and ODerating A~reement. It is Purchaser's
intent to acquire the Property and to construct thereon a seasonal affordable housing project
known and referred to herein as the "Burlingame Project", consisting of one hundred (100)
dwelling units containing 200 bedrooms together with accessory uses including a manager's
apartment. It is contemplated that the parties, along with Music Associates of Aspen, Inc.,
("MAA"), shall enter into a development and operating agreement addressing the acquisition,
annexation, zoning, development, operation and ownership of the Burlingame Project, with
MAA as the Project Manager (hereinafter "Development and Operating Agreement"). The
use and operation of the Burlingame Project shall further be governed by restrictive
covenants limiting the use and operation of the Burlingame Project as affordable housing.
This Contract shall be contingent upon the parties entering into and executing the Operating
and Development Agreement prior to the date set forth herein for Closing.
(B) Land Use ADDrovals. Pursuant to the Development and Operating
Agreement, Purchaser, through its Project Manager, MAA, shall be responsible for continued
processing of an application for planned unit development and subdivision approval for the
Burlingame Project. Purchaser's obligations hereunder shall be contingent upon (i)final
approval of the planned unit development and subdivision application in a form and
substance, and subject to terms and conditions acceptable to Purchaser, and (ii) issuance of
a building permit for the Burlingame Project.
(C) No Material Adverse Chanl!:e. Between the date of this Contract and the
closing date, there shall have been no material adverse change in the Property.
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(D) Absolute Ri~ht to Terminate. At any time prior to the date of closing,
Purchaser may elect, in its sole discretion, to terminate this Contract by notifYing Seller or
Seller's agent in writing of its decision to so terminate if the contingencies set forth in
paragraphs (A), (B) or (C) above, have not been satisfied. In the event that Purchaser elects
to terminate this Contract pursuant to this Paragraph, then all eamest money payments and
things of value paid hereunder shall be returned forthwith to Purchaser, and neither party
shall have any further rights or obligations hereunder.
9. Date of Closinll. The date of closing shall occur within ten (10) days after the
recording of the final plat for the Burlingame Ranch Subdivision and Burlingame Ranch Seasonal
Housing Project PUD in the Pitkin County public records.
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1 O. Deliverv of Title. Subject to payment at closing as required herein and compliance
with the other terms and provisions hereof, Seller shall execute and deliver a good and sufficient
general warranty deed, in form and substance acceptable to Purchaser, conveying fee simple title to
the Property, except water rights, to Purchaser at closing free and clear of all taxes except general
property taxes for the year of closing; free and clear of all liens for special improvements installed
as of the date of Purchaser's signature hereon, whether assessed or not; free and clear of all other
liens, and free and clear of all other encumbrances except those disclosed by the title commitment
and accepted by Purchaser pursuant to Paragraph 5; and free and clear of any leases and contract
rights not agreed to in writing by Purchaser. At closing, Seller agrees to pay all costs and premiums
for a title insurance policy consistent with the title insurance commitment referenced in Paragraph
3 and the terms and conditions of Paragraph 5 of this Contract. The title insurance policy shall be
delivered to purchaser within a reasonable time after closing.
11. Payment of Encumbrances. Any encumbrance upon the Property not permitted
under the terms of this Contract shall be paid at the time of settlement from the proceeds of this
transaction, prior to delivery to Seller of any purchase price proceeds. Provided, however, that if the
total indebtedness secured by liens on the Property exceeds the purchase price, Seller shall deliver
sufficient funds to payoff and fully extinguish such liens, or, at Purchaser's sole option, this Contract
may be terminated by Purchaser and be of no effect and each party hereto shall be released from all
obligations hereunder and the eamest money and all payments and things of value received hereunder
shall be returned forthwith to Purchaser.
12. Prorations. General property taxes and any assessments for special improvements
for the year of closing shall be prorated to the date of closing based upon the most recent tax bill.
Such taxes and assessments shall be re-adjusted between Purchaser and Seller when the actual taxes
or notice of assessment for the current year are received.
13. Closinl! Costs. Documents and Services. Purchaser and Seller shall pay their
respective closing costs at closing, except as otherwise provided herein. Purchaser and Seller shall
sign and complete all customary or reasonably required documents by the Title Company at or before
closing.
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14. Condition of and Damae:e to Pronertv. The Property shall be conveyed at closing
in its present condition, ordinary wear and tear excepted. In the event that the Property or any
inclusion(s) shall be damaged by fire or other casualty prior to time of closing, such that the value
is reduced by more than ten percent (10%), this Contract may be terminated at the option of
Purchaser. Should Purchaser elect to carry out this Contract despite such damage, Purchaser shall
be entitled to credit for all the insurance proceeds resulting from such damage to the Property, not
exceeding, however, the total purchase price. Should any inclusion(s) or service(s) fail or be
damaged between the date of this Contract and the date of closing, then Seller shall be fully liable
for the repair or replacement of such inclusion(s) or service(s) with a Unit of similar size, age and
quality, or an equivalent credit, less any insurance proceeds received by Purchaser covering such
repair or replacement.
15. Condemnation. If, prior to closing, any proceeding for the condemnation of all or
any portion of the Property is commenced by any govemmental entity, Purchaser may elect, in it's
sole discretion, to either terminate this Contract or to purchase the Property and collect the
condemnation award.
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16. Possession. Possession of the Property shall be delivered to Purchaser on the date
of closing, free and clear of all parties in possession. If Seller, at closing, fails to deliver possession,
Seller shall be subject to eviction, and shall be additionally liable to Purchaser for payment of
$250.00 per day as liquidated damages from the date of agreed possession until possession is
delivered.
17. Time of Essence. Time is of the essence hereof.
18. Remedies.
(A) IF PURCHASER FAILS TO PERFORM its obligations at the closing and
acquire the Property, for any reason other than an express right of termination contained
herein, Seller may elect (i) to retain all eamest money payments and things of value received
hereunder, it being agreed that such payments and things of value are liquidated damages.
Except as provided in subparagraph (C), below, the foregoing is Seller's sole and exclusive
remedy for Purchaser's failure to perform the obligation to acquire the Property pursuant to
this Contract. If Purchaser fails to perform its obligations pursuant to Paragraph 18, above,
Seller shall have the right to an action for specific performance.
(B) IF SELLER IS IN DEF AUL T, hereunder, Purchaser may elect any or all of
the following remedies: (i) treat this Contract as terminated, in which case all eamest money
payments and things of value paid hereunder shall be returned forthwith to Purchaser, (ii)
Purchaser may recover such damages as may be proper, and (iii) Purchaser may elect to treat
this Contract as being in full force and effect, whereupon Purchaser shall have the right to
an action for specific performance or damages, or both.
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(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 its reasonable costs
and expenses, including attorneys' fees.
19. Re-Purchase Option. As additional consideration for its agreement to sell the
Property to Purchaser, Seller shall have the right and option to repurchase the Property at any time
prior to its ultimate reversion to the City as set forth in the Development and Operating Agreement
for a purchase price equal to the outstanding balance on the Series A and Series B Bonds to be issued
by Purchaser to finance construction of the Burlingame Project, together with an amount sufficient
to pay in full any and all debts and obligations of the Purchaser, less amounts held by Purchaser in
reserve accounts. In exercising its repurchase option, the Seller shall take title to the Property subject
to the MAA Master Lease and any other Master Leases, as those terms are defined in the
Development and Operating Agreement, which may be granted by the Seller. Consistent with the
foregoing, the terms and conditions of the Seller's repurchase option, including the manner of its
exercise, shall be set forth in an option agreement, in a form and substance reasonably acceptable to
Purchaser and Seller to be executed at Closing.
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20. Earnest Monev Disnute. Purchaser and Seller agree that, in the event of any
controversy regarding the eamest money held by the Title Company unless mutual written
instructions are tendered to it by the parties hereto, they shall not be required to take any action, but
rather may await any proceeding or, at its option and discretion, may interplead all parties and
deposit such eamest money into a court of competent jurisdiction, and shall be entitled to recover
its reasonable costs and attorneys' fees. In any litigation regarding the earnest money deposit, the
prevailing party shall be entitled to payment of costs and reasonable attorneys' fees by the losing
party .
21. Survival of Covenants. Renresentations and Warranties. The covenants,
representations, warranties and indemnities made by the parties to this Contract, and the obligations
and agreements to be performed or complied with by the respective parties hereunder on or before
the closing date shall survive the closing.
22. Entire A~reement. This Contract constitutes the entire agreement between the
parties hereto, and supersedes all prior and contemporaneous agreements, representations and
understandings of the parties regarding the subject matter of this Contract. No supplement,
modification or amendment of the Contract shall be binding unless executed in writing by the parties
hereto.
23. Assil!:nment. Purchaser may not assign this Contract without Seller's consent.
24. CounterpartslFacsimile. This Contract may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. A facsimile signature shall have the same effect as an original
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signature. Nevertheless, the executed document with the original signature shall be delivered to the
non-signing party within three (3) days after execution.
25. Bindim! Effect. This Contract shall be binding upon and shall inure to the benefit
of the parties hereto, and their respective heirs, successors and assigns.
26. Recommendation ofLel!al Counsel. By signing this document, Purchaser and Seller
acknowledge the advisability of obtaining the advice of independent legal counsel regarding
examination oftitle documents and the terms of this Contract.
27. Governinl! Law. This Contract shall be governed by and construed in accordance
with the laws of the State of Colorado, and the parties hereby consent to the exclusive jurisdiction
of the Colorado state courts in the event of any controversy or suit arising hereunder. Venue shall
be in Pitkin County, Colorado.
28. Severabilitv. If any provision of this Contract is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Contract
shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
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29. Notices. All notices and other communications tendered in connection with this
Contract shall be in writing, and shall be deemed to have been duly given when delivered in person
or by telefax, or on the third day after mailing, if mailed registered or certified mail, postage prepaid
and properly addressed as follows:
To Purchaser at:
Burlingame Seasonal Housing, Inc.
With Copy to:
David J. Myler, Esq.
Freilich, Myler, Leitner & Carlisle
106 South Mill Street, Suite 202
Aspen, CO 81611
Phone: (970) 920-1018
Fax: (970) 920-4259
To Seller at:
City of Aspen
c/o City Manager
130 S. Galena Street
Aspen, CO 81611
30. SDecial Taxinl! Districts. Special taxing districts may be subject to general
obligation indebtedness that is paid by revenues produced from annual tax levies on the taxable
property within 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
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resulting in the inability of such a district to discharge such indebtedness without such an increase
in mill levies. Purchaser shall investigate the debt financing requirements of the authorized
obligation indebtedness of such districts, existing mill levies of such districts servicing such
indebtedness, and the potential for an increase in such mill levies; provided, however, Seller
represents and warrants to Purchaser that, to the best of Seller's knowledge, the current mill levies,
based on the current assessed values of properties within such special districts, are adequate to retire
all bonds issued by such special districts.
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records.
Recordin~. The parties agree that this Contract shall not be recorded in the public
32. Al!encv Disclosure. The parties acknowledge that the Property is not listed for sale
with any real estate brokerage, and that neither Purchaser nor Seller shall be obligated to pay any real
estate commission in connection with the sale of the Property contemplated herein. Purchaser and
Seller shall each indemnifY and defend the other from and against any and all claims or liability for
the payment of any real estate commission in connection herewith, except as stated above.
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33. Bindinl! Contract. Upon execution of this Contract by Purchaser and all persons
listed as Seller, below, this insttument shall become and be deemed a binding contract between
Purchaser and Seller. The effective date of the Contract shall be the latest date of execution by
Purchaser and any Seller. In no event shall any time periods under this Contract begin to run until
this Contract has been fully executed by both Seller and Purchaser and Seller has delivered to
Purchaser a fully executed original counterpart of the same.
PURCHASER:
BURLINGAME SEASONAL HOUSING, INC.,
a Colorado non-profit corporation
BY:
Date of Buyer's Signature
SELLER:
THE CITY OF ASPEN,
a Colorado municipal corporation
By:
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Date of Seller's' Signature
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