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Home My WebLink Aboutbocc.con.091.2007CONTRACT # ~ 11 r 60 ? (~) AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, AUTHORIZING EXECUTION OF THE COI~TTRACT FOR PURCHASE OF VARIOUS PROPERTY INTERESTS FROM THE WILKINSON ESTATE ORDINANCE #(~/~ ,SERIES OF 2007 RECITALS 1. The Voters of Pitkin County and the Pitkin County Commissioners established an Open Space and Trails Fund for the purposes of preserving and developing open space and trails resources in Pitkin County, and established an Open Space and Trails Board of Trustees to guide the expenditure of those funds. 2. The protection of Smuggler Mountain and the Hunter Creek Valley have been long standing goals of Pitkin County and the City of Aspen. Several purchases have been completed, including Baldwin (20 acres), MAA (20 acres), the Last Chance claim (4 acres) and Wilkinson (approx. 200 acres) on Smuggler Mountain, and the Hununingbird Lode (10 acres) and Little Chief Mining Claim (10 acres) in Hunter Creek. 3. The estate of George "Wilk" Wilkinson holds several property interests in the Smuggler/Hunter Creek vicinity, including fractional ownership of surface rights, and either fractional or 100% ownership of subsurface rights for several mining claims on Smuggler Mountain and in the Hunter Creek Valley. These property interests contain significant open space, ecological, scenic, and recreational features. 4. The Wilkinson Estate desires to sell this interest to Pitkin County for $500,000. 5. The County and City Open Space Boards have recommended this acquisition, and have further recommended that each jurisdiction contribute SO% of the $500,000 purchase price. NOW TIIEREFORE BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado, that: 1. The Board approves an expenditure of up to $250,000 for the. purchase of all remaining property interests held by the Wilkinson Estate on Smuggler Mountain, Hunter Creek, or within the general vicinity of either, and further authorizes the Open Space Department to expend up to $5,000 on related transaction costs. 2. Upon approval of the form by the Open Space Director and County Attorney, the Chair is authorized to execute a contract for purchase of the Wilkinson Estate Property interests. Said contract will allow a partial assignment to the City of Aspen to secure their contribution of $250,000 toward this acquisition. The Chair is further authorized to execute such other documents as may be necessary to finalize this transaction. 3. That adjustments be made to the year 2007 budget as follows: OPEN SPACE AND TRAILS FUND Previous Revised Budset This ChanEe Proi BudSet $ $ $ Wilkinson Estatel Acquisition expenditure 0 255,000 255,000 INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON NLY 11th, 2007. NOTICE OF PUBLIC HEARING AND TH FULL ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON ~ ut, / 5 , 2007. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON NLY 25th, 2007. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON ~(/ (9-(~SY' ~~ , 2007. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO G ~ , ~; ichael M. wsle Chair Date: ~ ~ d APPROVED AS TO FORM: c r-- - ~Jo County Attorney ,~~~ ~ Hilary F e her County anager I'he~printed portions ofthis form, except differentiated additions, have been approved by the Colorado Real Estate Commission. (CBS 3-7-04) THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULti~I# 9 AND TAX OR OTHER COUNSEL BEFORE SIGNING. CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND -FARM -RANCH) __.__. _ ___~.---_--... _ - - -. _ Date: July 6, 2007 . _.. Purchase Price: $ 500,000.00 I. AGREEMENT. Buyer agrees to buy, and the undersigned Seller agrecs to se]], the Property defined below on the terms and conditions set forth in this contract. 2. DEFINED TERMS. a. Buyer. Buyer, BOARD OF COUNTY COMMISSIONERS OF PITKIN CO TY COLORADO and the CITY OF ASPEN. will take title to the real property described below. b. Property, All interest in the following legally described real estate being located in the Roaring Fork Mining District Robert Emmett Mining Claim, U.S.M.S. #6D44 an undivided 1/9`h interest in plus any and all other interests Rainstorm and Snowstorm Mining Claim, U.S.M.S. #6270 1D0% of the minerals, mineral rights, tunnel rights, shag and shaft rights. Rainstorm #2 Mining Claim U.S.M.S.# 6318 100% of the minerals, mineral rights, tonne] rights, shaft and shaft rights, beginning a! 500 ft below the surface Snowstorm #2 (pt otthe North ('/:) Mining Claim U.S.M.S. #6318 100%of the minerals, mineral rights, tunnel rights, shaft and shaft rights, beginning at 500 ft below the surface Ute Mining Claim, U.S.M.S. #5847 5/96'n interest of all surface, mineral rights, tunnel rights, shaft and Shaft rights Iron Mining Claim U.S.M.S. # 5847 S/96ih interest of all surface, mineral rights, tunnel rights, shaft and shaft rights Merimac Mining Claim, U.S.M,S. #4327 1/]2'h interest of all surface, mineral rights, tunnel rights, shaft and shaft rights Merimac Consolidate Mining Claim U.S.M.S. #4515 1 /12f6 interest of all surface, mineral rights, tunnel rights, shaft and shaft rights Alma M Mining Claim U.S.M.S.#3944 '/, interest in all of the minerals, mineral rights, tunnel rights, shaft and shaft righLS, beginning at SDO feet below the surface Arkansas (N) Mining Claim U.S.M.S. #8394 %, interest in all of the minerals, mineral rights, tunnel rights, shaft and shaft rights, beginning at 500 feet below the surface Last Chance Mining Claim U.S.M.S. #6926 - ]00% ofthe minerals, mineral rights, tunnel rights, shaft „G. ~ and shaft rights, beginning at 500 ft below the surface 1= ~ r~ Alpine Mining Claim U.S.M.S. #6642 %a interest of the minerals, mineral rights, tunnel rights, shaft ~\ ~° and shaft rights, beginning at 500 ft below the surface Bushwacker Mining Claim U.S.M.S. #6842 Yz interest of the minerals, mineral rights, tunnel rights, shaft and shaft rights, beginning at 500 ft below the surface Della S. U.S.M.S. 3939 ~ interest of the minerals, mineral rights, tunnel rights, shaft and shaft rights, beginning at 500 ft below the surface ~n Ballarat U.S.M.S. 4438 'h interest of the minerals, mineral rights, tunnel rights, shaft ~11 ~ ~ ~ 111 3 and shaft rights, beginning at S00 fr below the surface Chatfield U.S.M_S. 1462 {southern portion) %: interest ofthe minerals, mineral rights, tunnel rights, shaft and shaft rights, beginning at 500 ft below the surface Pt of Chatfield (SOUTHERN PORTION) U.S.M.S. ] 462 '/ interest of the minerals, mineral rights, tunnel rights, shaft and shaft rights, beginning at 500 ft below the surface Fossil Fraction'h U.S.M.S. 6910 % interest ofthe minerals; mineral rights, tunnel rights, shaft and shaft rights, beginning at SDO ft below the surface Fossil 'h U.S.M.S. 6910 '/ interest of the minerals, mineral rights, tunnel rights, shaft and shad rights, beginning at 500 ft below the surface General Jackson U.S.M.S. 3941 '/ interest ofthe minerals, mineral rights, tunnel rights, shaft and shaft rights, beginning at 500 ft below the surface Glendale U.S.M.S. 6859 Y: interest ofthe minerals, mineral rights, tunnel rights, shafr and shaft righu, beginning at SOD ft below the surface in the County of Pitkin. Colorado, 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 heroin excluded. c. Dates and Deadlines Item No. Reference Event Date or §Sa Loan Application Deadline 2 b Loan Commitment Deadline 3 §Se Buyer's Credit Information De 4 ¢Sc ~ val ofB redit Deadline 5 §Sd Exi oan ents Deadline 6 ¢Sd Objection to Existing Loan ents Deadline 7 Approval of Loan Transfer Deadline 8 § 6a{4) Appraisal Deadline 9 § Sa Title Deadline July 13, 2007 10 § Se Survey Deadline n/a I i § be Survey Objection Deadline n/a ]2 § Sb Document Reques[ Deadline July ]3, 2007 i3 § ba Title Objection Deadline July 20, 2007 14 ¢ bb Off-Record Matters Deadline June 13, 2007__._ ]5 ¢ 66 Off-Record Matters Objection Deadline July 20, 2007 16 § 8 Seller's Property Disclosure Deadline July 13, 2DD7 17 ¢ Sa Inspection Objection Deadline July 13, 2007 ] 8 § 8b Resolution Deadline July 20, 2007 19 § 9 Closing Data August 8, 2007 20 ¢ 14 Possession Date At time of closing 21 § ]4 Possession Time At time of closing 22 ¢ 25 Acceptance Deadline Date July 9, 2007 23 § 25 Acceptance Deadline Time 5:00 P.M. MST d. Attachments. The following are a part of this contract: ExhibitA Legs] Description ExhibitdCnduAddenditm ~{2 CBS 3-7-04 CONTRACT TO BI)2' AND SELL REAL ESTATE (VACANT LAND - FART•i -RANCH) ~ ~ ~~ Page 2 of 12 Initials - e. Applicability of Terms. A check or similar mark in a box means that such provision is applicable. The abbreviation "N/A" means not applicable. Thr abbreviation "MEC" (mutual execution of this contract) means the latrst date upon which both parties have signed this contract. 3. INCLUSIONS AND EXCLUSIONS. The Purchase Price includes the following items (Inclusions): a, Fixtures. If attached to the Property on the date ofthis contract, lighting, heating, plumbing, ventilating, and air conditioning fixtures, inside telephone wiring and connecting blocks/jacks, plants, mirrors, floor coverings, intercom systems, sprinkler systems and controls; and _ N/A _ -' b, - ' -Exclusions. The following attached fixtures are excluded from this sale: N/A C Transfer of Real Property. The inclusions are to be conveyed at Closing shall be conveyed, by 5e11er, free and clear of all taxes, liens and encumbrances, except as provided in § 12. Conveyance shall be by bill of sale or other applicable legal instmment(s}. Any wafer rights shall be conveyed by Quit Claim deed or other applicable legal instrument(s). d. Trade Fixtures. With respect to trade fixtures, Seller and Buyer agree as follows: N/A e. Water Rights. The following legally described wafer rights: All appurtenant water rights associated with the subject property. g. Growing Crops. With respect to growing crops, Seller and Buyer agree as follows; N/A 4. PURCHASE PRICE AND TERMS, The Purchase Price set forth below shall be payable in U. S. Dollazs by Buyer as follows: Item No. ~ Reference) Item ~ Amount ~ Amount 2 16 4a Purchase Price New First Loan Balance 9 ¢ 4b Cash at Closin $450,000.00 10 TOTAL $ 500,00.00 $500.000.00 Note: If there is an inconsistency between the Purchase Price on the first page and this § 4, the amount in § 4 shall control a. Earnest Money. The Earnest Money set forth in this section, in the form of is part payment of the Purchase Price and shall be- payable to and held by Stewart Title, in its trust account, on behalf of both Seller and Buyer. The Eamest Money deposit shall be tendered with this contract unless the parties mutually agree and set forth a different deadline in writing for its payment The ptirties authorize delivery of the Earnest Money deposit to the closing company, if any, at or before Closing. In the event Earnest Money Holder has agreed to have interest on earnest money deposits transferred to a fund established for the purpose of providing affordable housing to Colorado residents, Seiler and Buyer acknowledge and agree that any interest accruing on the Earnest Money deposited with the Eamest Money Holder in this transaction shall be transferred to such fund. b. Cash at Closing. All amounts paid by Buyer at Closing including Cash at Closing, plus Buyer's closing costs, shall be in funds which comply with all applicable Colorado laws, which include cash, electronic transfers funds, certified check, savings and loan teller's check and cashiers' check {Good Funds). 5. EVIDENCE OF TITLE. a. Evidence of Title. On or before Title Deadline (§ 2c), Seller shall cause to be furnished to Buyer, at Seller's expense, a current commitment for owner's title insuranct policy (Title Commitment) in an amount equal to the Purchase Price, or if this box is checked, ^ An Abstract oftitle certified to a current date. At Seller's expense, Seller shall cause the title insurance policy to be issued and delivered to Buyer as soon as practicable at or after Closing. If a title insurance commitment is furnished, it Shall O 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 mechanic's liens, CBS 3-7-04 CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND -FARM -RANCH) i~ Page 3 of l2 Initials 5 (5) gap period (effective date of commitment to date deed is recorded), and (6) unpaid taxes, asscssmenu and unredeemed tax sales prior to the yeaz of Closing. Any additional premium expense to obtain this additional coverage shall be paid by O Buyer ^ Seller. b. Copies of Exceptions. On or bcfore 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 fumishcd, and 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, Seiler shall have the obligation to famish these documents pursuant to.this subsection if requested by Buyer any time on or before Document Request Deadline (§ 2c). This requirement shall pertain only to documents as shown of record in the offices of the clerk and recorder. The abstract or title insurance commitment, together with any copies or summaries of such documents famished pursuant to this section, constitute the title documents (Title Documents). c. Survey. On or before Survey Deadline (§ 2c) ®Seller ^Buyer shall cause Buyer acid the issuer of the Title commitment or the provider of the opinion of title if an abstract, to receive a current ®Improvement Survey Plat ^ Improvement Location Certificate ^ N!A . (the description checked is known as Survey). Survey shall be paid by ^Buyer BSetler. 6. TITLE AND SURVEY REVIEW. a. Title Review. Buyer shall have the right to inspect the Title Documents. Written notice by Buyer of unmerchantability of title, form or content of Title Commitment or of any other unsatisfactory title condition shown by the Title Documents, notwithstanding ¢ 10, shall be signed by or on behalf of Buyer and given to Seller on or before Title Objection Deadline (§ 2c),pr within five (5) calendaz days after receipt by Buyer of any change to the Title Documents or endorsement to the Title Commitment together with a copy of the document adding any new Exception to title. Tf Seller does not receive Buyer's notice by the date 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) tme copies of all leases and surveys in Seller's possession pertaining to the Property and shall disclose to Buyer all easements, liens (including, without Limitation, govemmental improvements approved, but not yet installed) or other title matters (including, without limitation, rights of first refusal, and options) not shown by the public records of which Seller has actual 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 the public records (such as an unrecorded easement, unrecorded lease, or boundary line discrepancy). Written notice of, any unsatisfactory condition disclosed by Seller or revealed by such inspection, notwithstanding ¢ ] 0, 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 has actual knowledge. c. Survey Review. Buyer shall have the right to inspect Survey. If written notice by or on behalf of Buyer of any unsatisfactory condition shown by Survey, notwithstanding § 6b or § 10, is received by Seller on or before Survey Objection Deadline (¢ 2c) then such objection shall be deemed an unsatisfactory title condition. if Seller does not receive Buyer's notice by Survey Objection Deadline (¢ 2c), Buyer accepts Survey as satisfactory. d. 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 PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS W 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 SUCH WDEBTEDNESS 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 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 received by Seller on or before Off-Record Matters Objection Deadline (¢ 2c), this conVact 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 and waives the right to terminate. e. Right to Object, Cure. Buyer's right to object shall include, but not be limited to those matters listed in § 10. If Seller receives notice of unmerchantability of title or any other unsatisfactory title condition or commitment terms as provided in subsections 6 a, b, c and d above. Seller shall use reasonable efforts to correct said items and bear any nominal expense to correct the same prior to Closing. If such unsatisfactory title condition is not corrected to Buyer's satisfaction on or before Closing, this contact shall then terminate; provided, however, Buyer may, by written notice received by Seller on or before Closing, waive objection to such items. f. Title Advisory. The Title Documents affect the title, ownership and use of the Property and should be reviewed carefully. Additionally, other matters not reflected in the Title Documents may affect the title, ownership and use of the Property, including without limitation boundary lines and encroachments, area, zoning, unrecorded easements and claims of easements, leases and other unrecorded agreements, and various laws and govemmental regulations concerning land use, development and environmental matters. The surface estate may be owned separately from the 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, CBS 3-7-04 CONTRACT TO BUl' AND SELL REAL ESTATE (VACANT LAND -FARM-RANCH) ,D ^ ~ ~~ Page 4 of 12 Initials which interests may give them rights fo enter and use the Property. Such matters may be excluded from the title insurance policy. Buyer is advised to timely consult legal counsel with respect to all such matters as there are strict time limits provided in this contract (c.g.. Title Objection Deadline [§ 2c] and Oft Record Matters Objection Deadline [¢ 2cj). 7. LEAD-BASED PAINT. Unless exempt, if the improvements on the Property include one or more residential dwellings for which a building permit was issued prior to January 1, ] 978, this contract shall be void unless a completed Lead-Based Paint Disclosure (Sales} form is signed by Seater and the required real estate licensees, which must occur prior to the parties signing this contract S. PROPERTY DISCLOSURE, INSPECTION AND INSURABILITY; BUYER DISCLOSURE. On or before Seller's Property Disclosure Deadline (§ 2c), Seller agrees to provide Buyer with a Seller's Property Disclosure (Vacant Land) form completed by Seller to the best of Seller's current actual knowledge. a. Inspection Objection Deadline. Buyer shall have the right to have inspections 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): (I) notify Seller in writing that this contract is terminated, or (2) provide Seller with a written description of any unsatisfactory physical condition which Buyer requires Seller to correct (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 fo 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 c. Insurability. This contract is conditioned upon Buyer's satisfaction, in Buyer's subjective discretion, with the availability, terms, conditions and premium for property insurance. This contract shall terminate upon Seller's receipt, on or before Property Insurance Objection Deadline (§ 2c) of Buyer's written notice that such insurance was not satisfactory to Buyer. If said notice is not timely received, Buyer shall have waived any right to terminate under this provision. d. Damage, Liens and Indemnity. Buyer is responsible for payment for all inspections, surveys, engineering reports or for any other work performed at Buyer's request and shall pay for any damage which occurs to the Property and Inclusions as a result of such activities. Buyer shall not permit 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 this subsection, including Seller's reasonable attorney and legal fees. The provisions of this subsection shall survive the termination of this contract 9. CLOSING. Delivery of deed from Seiler to Buyer shall be at closing (Closing). Closing shall be on the date specified as Closing Date (§ 2c) or by mutual agreement at an earlier date. The hour and place of Closing shall be as designated by Equally by the parties. 10. TRANSFER OF TITLE. Subject to tender or 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, 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 reflected in the Title Documents accepted by Buyer in accordance with ¢ 6a (Title Review), b. distribution utility easements, c. those specifically described rights of third parties not shown by the public records of which Buyer has actual knowledge and which were accepted by Buyer in accordance with § 66 (Matters not Shown by the Public Records) and § 6c (Survey Review), d. inclusion of the Property within any special taxing district, e, the benefits and burdens of any declaration and party wall agreements, if any, and f. other 11. 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. 12. CLOSING COSTS, DOCUMENTS AND SERVICES. Buyer and Seller shalt 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 ~ One-half by Buyer and One-half by Seller ^ Buyer ^ Seller ^ Other CBS 3-7-04 CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND -FARM -RANCH) ~^ ~~~ ~~ Page 5 of 12 Initials The local transfer tax of %ofthc Purchase Price shall be paid at Closing by ^ One-half by Buyer and One- hatf by Setter ^ Buyer D Seller ^ Other _N/A .Any sales and use tax that may accrue because ofthis transaction shall be paid when due by ^Buyer DSeller. ]3. PROBATIONS. The following shall be prorated to Closing Date (§ 2c), except as otherwise provided: a. Taxes. Personal property taxes, if any, and general real estate taxes for the year of Closing, based on ^ _ _...Taxes for the Calendar Year Immediately Preceding Closing ^ Most Recent Mill Levy and Mosf 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. G Other Prorations. Water and sewer chazges; interest on any continuing loan, and N/A d. Final Settlement. Unless otherwise agreed in writing, these prorations shall be final. 14. POSSESSION. Possession of the Property shall be delivered to Buyer on Possession Date and Possession Time (§ 2c), subject to the following leases or tenancies: _N!A 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 $_N/A per day from the Possession Date (§ 2c) until possession is delivered. 15. NOT ASSIGNABLE. This contract shalt not be assignable by Buyer without Seller's prior written consent. Except as so restricted, this contract shall inure to the benefit of and be binding upon the heirs, personal representatives, successors and assigns of the parties. 16, INSURANCE; CONDITION OF, 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 ofthis conVact, ordinary weaz and tear excepted. 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). Tn the event such damage is not repaired within said time or if the damages exceed such sum, this contract may be terminated 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 insurance proceeds resulting from such damage to the Property 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, Inclusions and Services. Should any Inclusion or service (including systems and components of the Property, e.g. heating, plumbing, etc.) fail or be damaged between the date of this contract and Closing or possession, whichever shall be earlier, then Seller shall be liable for the repair or replacement of such Inclusion or service with a unit of similar size, age and quality, or an equivalent credit, but only to the extent that the maintenance or replacement of such Inclusion, service or fixture 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 fire or other casualty, shall be borne by the party entitled to the growing crops, if any, as provided in ¢ 3 and such party shall be entitled to such insurance proceeds or benefits for the growing crops, if any. G Walk-Through and Verification of Condition. Buyer, upon reasonable notice, shall have the right to walk through the Property prior to Closing to verify that the physical condition of the Property and Inclusions complies with this contract 17. RECOM114ENDATION OF LEGAL AND TAX COUNSEL. By signing this document. Buyer and Seller acknowledge that the respective broker 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 IS. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence hereof. If any note or check received as Earnest Money hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed or waived as herein provided, there shall be the following remedies: a. If Buyer is in Default: ^ (1) Specific Performance. Seller may elect to treat this contract as canceled, in which case all payments and things of value received hereunder shall be forfeited and retained on behalf of Seller, and Seller may recover such damages as may be proper, or Seller may elect to treat this contract as being in full force and effect and Seller shall have the right to specific performance or damages, or both. ^ (Z) Liquidated Damages. A]l payments and things of value received hereunder shall b'e forfeited by Buyer and retained on behalf of Seller and both parties shall thereafter be released from al] obligations hereunder. It is agreed that such CBS 3-7-04 CONTRACT TO i3t1Y AND SELL REAL ESTATE (VACANT LAND -FARM -RANCH) ' ~ '' "' Page 6 of 12 niteals payments and things of value are LIQUIDATED DAMAGES and (except az provided in subsection c) are SELLER'S SOLE AND ONLY REMEDY for Buyer's failure to perform the obligations 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 az canceled, in which case all pa}ments and things of value received hereunder shall be returned and Buyer may recover such damages az may be proper, or Buyer may eleM to treat this contract as being in full force and effect and Buyer shall have the right to specific performance or damages, or both. c. Costs and Expenses. ]n the event of any arbitration or litigation relating to this contract, the arbitrator or court shall award to the prevailing party all reasonable costs and expenses, including attorney and legal fees. 19. ' 'MEDIATION. If a dispute arises relating to this contract, prior to or after closing, and is not resolved, the parties shall first 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 dispute informally and confidentially. Mediators cannot impose binding decisions. The parties to the dispute must agree before any settlement is binding. The parties will jointly appoint 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 within 30 calendar days of the date written notice requesting mediation is sent by one party to the other at the party's last known address. This section shall not alter any date in this contract, unless otherwise agreed. 20. EARNEST MONEY DISPUTE. In the event of any controversy regarding the Earnest Money and things of value (notwithstanding any termination of this contract or mutual written instructions). Earnest Money Bolder shall not be required to take any action. Earnest Money Holder may await any proceeding, or at its option and sole discretion, intetplead all parties and deposit any money or things of value into a court of competentjurisdiction and shall recover court costs and reasonable attorney and legal fees. 21. 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 §§ Sd, 19 and 20, 22. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado Real Estate Commission.) 23. ENTIRE AGREEMENT, MODIFICATION, SURVIVAL. This agreement constitutes the entire contract between the parties relating to the subject hereof, and any prior agreements pertaining thereto, whether oral or written, have been merged and integrated into this contract. No subsequent modification of any of [he terms of this contract shall be valid, binding upon the parties, or enforceable unless made in writing and signed by the parties. Any obligation in this contract that, by its terms, is intended to be performed after termination or Closing shall survive the same. 24. NOTICE, DELIVERY AND CHOICE OF LAW. a. Physical Delivery. Except for the notice requesting mediation described in § 19, and except as provided in § 24b below, all notices must be in writing. Any notice to Buyer shall be effective when received by Buyer or by Selling Brokerage Firm, and any notice to Seller shall be effective when received by Seller or Listing Brokerage Firm. b. Electronic Delivery. As an alternative to physical delivery, any signed document and written notice may be delivered in electronic form by the following indicated methods only: ^Facsimile s E-mail ^ None. Documents with original signatures shall be provided upon request of any party. G Choice of Law. This contract and all disputes arising hereunder shall be governed by and construed in accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a contract in this state for property located in Colorado. 25. NOTICE OF ACCEPTANCE, COUNTERPARTS. This proposal shall expire unless accepted in writing, by Buyer and Seller, as evidenced by their signatures below, and the offering party receives notice of acceptance pursuant to § 24 on or before Acceptance Deadline Date (§ 2c) and Acceptance Deadline Time (§ 2c). If accepted, this document shall become a contract between Seller and Buyer. A copy of this document may be executed by each party, separately, and when each party has executed acopy -" thereof, such copies taken together shall be deemed to be a full and complete contract between the parties. Date: July 6, 2007 Date: July 6, 2007 Board o Count ommissione .ofEitkin Count Ci of As err ~ Buyer ~ Buyer ;~ j~'`~lc~~ Address: 530 .Main tre 3` ' oor Address: 130 So. Galena Street Aspen, CO 8161 ] Aspen, CO 81611 Phone No.: (970) 920-5 ] 90 Phone No.: (970) 920-5055 CBS 3-7-04 CONTRACT TO BiJY AND SELL REAL ESTATE (VACANT LAND -FARM - RANCI-1) ~• ~ ~~ Page 7 of ]2 Initials 9 Fax No.: (970) 920-5198 Fax No.: (970) 920-5 ] 19 (NOTE: If this offer is being countered or rejected, do not sign this document. Refer to § 26] Date: July 6, 2007 New Consolidated Minin¢ et al.. Se]1er• Shazon Wynters, Trustee - -A re~~J / i/ Phone No.: Fax No.: Date: Mvoho Enterorises Seller Address: P.O Box 573130 T anal, -CA 91357 hone No.: ( 8) 344-868~~ Fax No.: Datc: July 6, 2007 Fideliri Trust Building inc• Seller: Sharon Wynters, Trustee Address: ~.y ~ l~ hone No.: Fax No.: Date: `~2~cro~~ 1'~'1~4-ra-l-. ~ ~-')ltv~cna(._ ~-1N~~2S Seller C~ Address: "YO ~bt( 5~'.3 f 3y I ra-- Z ai-u ,-~ ` r~ ~~.- -i' one o.: Fax No.: 26. COUNTER; REJECTION. This offer is ^ Countered ^ Rejected. /~~ Initial only of party (Buyer of Seller) who countered or rejected offer f/ ~ Initials END OF CONTRACT Note: Closing Instructions and Ernest Money Receipt should be signed on or before Title Deadline (§2c). i BROKER ACKNOWLEDGMENTS. The undersigned Brokers acknowledge receipt of the Earnest Money deposit specified in § 4 and, while not parties to the contract, agree to cooperate upon request with any mediation conducted under § 19. The Selling Broker is a ^ Buyer's Agent ^Transaction-Broker in this transaction. The Listing Broker is a ^ Seller's Agent ^Traasaction-Broker in this transaction. BROKERS' COMPENSATION DISCLOSURE Selling Brokerage Firm's compensation or commission is to be paid by r Listing Brokerage Firm ^ Buyer ^ Other (To be completed by Listing Broker) Listing Brokerage Firm's compensation or commission is to be paid . by: sSeller ^ Buyer ^ Other Selling Brokerage Firm's Name: Frias Properties of Aspen Date: July 6, 2007 Broker: Debra Goldstein Address: 730 E. Durant Street, Aspen, CO 8161 I Phone No.(970) 920-2000 Fax No. (970) 920-9399 CBS 3-7-04 CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND -FARM -RANCH) Page 8 of 1Z Initials S~ L wt fa , Listing Brokerage Firm's Name: Friar Properties of Aspen Date: July 6, 2007 Broker. Debra Goldstein Address:_7~0 E. Durant Street Aspen CO 81611 Phone No. (970) 920-2000. Fax No. (9701920-9399 EXHIBIT "B" ADDENDUM This Addendum is made a part of that certain Contract to Buy and Sel] Real Estate (Vacant Land) dated July 6, 20D7 ("Contract") between Board of County Commissioners of Pitkin County and the City of Aspen, as buyer ("Buyer") and New Consolidated Mining, Fidelity Tnui Building Inc., Myoho Enterprises, as seller ("Seller"), with respect to property laown Roaring Fork Mining District, (see attached), ("Property"). In the event of any conflict or inconsistency between the provisions of this Addendum and the Contract, the provisions of this Addendum shail govern and control. ]. County Approval. Notwithstanding the signature hereto by the County Manager on behalf of Seller, the obligation of Seller to perform hereunder is expressly conditioned upon the adoption by Seller CHS 3-7-04 CONTRACT TO BW AND SELL REAL ESTATE (VACANT LAND - FARM- RANCH) ~ ' D~ f(~ Page 9 of IZ Initials /~ 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 Seller within sixty (60) days following the date of this Contract or any extension thereof as the parties may, in writing, agree, either Sel]er or Buyer may, upon written notice to the other, terminate this Contract whereupon Buyer shall be entitled to a prompt return of all Eamest Money paid. In the event such ordinance is timely adopted. Seller shall, at the request of Buyer, re-execute this Contract by the signature of the Chairman or Vice-Chairman of the Pitkin County Board of County Commissioners. Reference is made to certain of the Dates and Deadlines appearing in Paragraph 2c. of the Contract as Item Nos. 9, 1 ], 12, 13 and 14, which Dates and Deadlines shall commence to run from the effective date of the ordinance as follows: (a) The Date or Deadlines for Item Nos. 9, 11 and l3 shall be twenty (20) days following the effective date of the ordinance. (b) The Date or Deadlines for Item Nos. 12 and 14 shall be thirty (30) days following the effective date of the ordinance. 2. Standard Schedule B-2 Exertions. Seller shall furnish to Buyer at his sole expense, an endorsement to delete standard exceptions 1-6 on Schedule B-2 of the Title Insurance Commitment. ONLY IF NOT IN CONTRACT 6(a) 3. Additional Documents. At Closing, Se]ler shall execute and deliver such documents as shall be necessary to transfer and convey to Buyer, free and dear of all liens and encumbrances, all right, title and interest of Seller in and to the following: 4. Interest on Eamest Money. Any and al] monies paid by Buyer prior to closing shall be placed in an insured, interest bearing money market-type account with a local commercial bank with ail interest thereon to accrue for the benefit of Buyer. Whether or not Buyer shall ever be in default 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. 5. Notices. Any notice, demand or document which either party is required or may desire to give, deliver or make to the other party shall be in writing and shall be personal]y delivered or given by facsimile transmission or given by United States certified mail, return receipt requested, addressed as follows: To Buyer: Pitkin County, Colorado 530 East Main Street, 3`d Floor Aspen, CO 8161 I Facsimile No.: (970) 920-5198 With copy to: John Ely, County Attorney Pitkin County, Colorado 530 East Main Street, Suite 302 Aspen, CO 81611 Facsimile No.: {970) 92D-5198 City of Aspen 130 South Galena Street Aspen, CO 81611 Facsimile No.:(970) 920-5119 With copy to: John Worcester, City Attorney CBS 3-7-04 CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND -FARTS -RANCH) ~ ~~~~ Page 10 of 12 Initials 1~,.. City of Aspen ] 30 South Galena Street Aspen, CO 81611 Facsimile No.:(970) 920-5 ] 19 -To Seller. Sharyn Wynters PO Box 573130 Tarzana, CA 91357 With copy to: Debra Goldstein, Broker Frias Properties of Aspen 730 E. Durant Street Aspen, CO 8]611 Any notice, demand or document so given, delivered or made by United States mail shall be deemed to have been given three (3) days after the same is 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. 6. Miscellaneous. (a) Saturday. Sunda,~or Holiday. If any time period referred to 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 parties hereto agree and intend that the proper and exclusive forum for any litigation of any disputes or controversies arising out of or related to this Contract shall be 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, modifications or extensions hereof) may be executed in several counterparts and, after execution and as executed, shall constitute an agreement binding on al] of the parties, notwithstanding that ail of the parties are not signatories to the original or the same counterpart. (d) Further Assurances. Each of the parties agree to execute, acknowledge, deliver, 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. {e) Survival. All of the warranties and representations contained in this Contract of an ongoing nature or intended to survive shall survive the actual etosing of the transaction contemplated thereby. (f) Construction. No provision of this Contract shall be construed against or interpreted to the disadvantage of any party by reason of such party having ar being deemed to have requested, CBS 3-7-04 CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND -FARM -RANCH) ~^ ~//'-' Page 11 of 12 Iaitisls j3 drafted, required or structured such provision. It is the intention of the parties that the party who employed the scrivener to prepare [his Contract not be prejudiced by virtue of such act, nor shall tilts Contract be construed against such parry 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 court 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. C85 3-7-04 CONTRACT TO BUY AND SELL REAL ESTATE (1'ACANT LAND -FARM - RANCR) ~/V 1 ' 1 / J~~ Page 12 of 12 Initials ~~l m m ®®~ , ~~®~® ~X~~ ~E$ A[~f~BHE(~6![~1 r~Z As part of this contract all interests of any mineral interests the Seller owns on any of the properties in the vicinity of Smuggler Mountain situated in Sections 7 & 8 Township 10 South, Range 84 West of the Sixth principal meridian, Pitkin County, Colorado, shall be conveyed and Quit Claimed unto the Grantee(s), r^ ~9 (~ , l-;~, NJ~ (l S ~