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HomeMy WebLinkAboutBOCC Packet 06092010 Tariff Mining Claim AGENDA ITEM SUMMARY REGULAR MEETING DATE: June 9, 2010 AGENDA ITEM TITLE : ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTHORIZING THE CHAIR TO EXECUTE AN AGREEMENT FOR THE SALE OF THE COUNTY’S INTEREST IN A TRANSFERABLE DEVELOPMENT RIGHT CERTIFICATE ISSUED FOR THE TARIFF LODE MINING CLAIM STAFF RESPONSIBLE: John Ely ISSUE STATEMENT : This is the first reading of an ordinance authorizing the Chair to execute an agreement for the sale of the County’s interest in a TDR certificate which will be issued for severance of development rights from the Tariff Lode Mining Claim. BACKGROUND: Steven P. Simpson and Georgiana K. Simpson, trustees of the Simpson Family Trust (“Simpson”) are the owners of a 19/32 undivided interest in and to the Tariff Lode Mining Claim (U.S. Mineral Survey No. 5410), located in Pitkin County. Pitkin County (the “County”) is the owner of the remaining 13/32 undivided interest in the Tariff Lode Mining Claim. Simpson and the County desire to sever the development rights relating to the Tariff Lode Mining Claim and in return for the severance of the development rights, the County will issue one certificate of Transferable Development Right which Simpson desires to acquire. The County desires to sell its interest in the Transferable Development Right certificate to Simpson for the sum of $100,000.00. Simpson agrees to pay in full in cash or certified funds at the earlier of one year from the date the TDR is issued, or the closing of the sale of the TDR. The County and Simpson have agreed to the terms, covenants and conditions of an agreement to effect this conveyance in a form substantially approved by the County Attorney. LINK TO STRATEGIC PLAN: Growth. The TDR program is a planning and growth management tool used in implementing the Pitkin County Comprehensive Plan. Safe and Healthy Community. The TDR program protects the pristine, natural setting of certain lands within the County, while providing an additional economically beneficial use of those lands to community members who participate in the program. 1 BUDGETARY IMPACT: The $100,000 received for the sale of the County’s interest will be a General Fund asset. RECOMMENDED BOCC ACTION: Approve Ordinance and set for second reading and public hearing on June 23, 2010. ATTACHMENTS: Ordinance TDR Contract of Purchase and Sale-Partial Interest 2 ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTHORIZING THE CHAIR TO EXECUTE AN AGREEMENT FOR THE SALE OF THE COUNTY’S INTEREST IN A TRANSFERABLE DEVELOPMENT RIGHT CERTIFICATE ISSUED FOR THE TARIFF LODE MINING CLAIM ORDINANCE NO. _______-2010 RECITALS 1. Steven P. Simpson and Georgiana K. Simpson, trustees of the Simpson Family Trust (“Simpson”) are the owners of a 19/32 undivided interest in and to the Tariff Lode Mining Claim, located in Pitkin County, Colorado, more specifically described as: Tariff Lode Mining Claim (U.S. Mineral Survey No. 5410), as patented and described in that certain United States Patent No. 27725 dated December 23, 1896 and recorded May 20, 1949, in Book 175 at Page 188. Assessor’s Parcel Number: 273513400030 2. Pitkin County (the “County”) is the owner of the remaining 13/32 undivided interest in the Tariff Lode Mining Claim. 3. Simpson and the County desire to sever the development rights relating to the Tariff Lode Mining Claim and in return for the severance of the development rights therefrom, the County will issue one (1) certificate of Transferable Development Right; 4. Simpson desires to acquire County’s interest in said Transferable Development Right certificate and the County desires to sell its interest in the Transferable Development Right certificate to Simpson. 5. For and in consideration of the conveyance of the County’s portion of the TDR to Simpson, Simpson shall pay County the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00), paid in full in cash or certified funds at the earlier of one (1) year from the date the TDR is issued, or the closing of the sale of the TDR. 6. The County and Simpson have agreed to the terms, covenants and conditions of an agreement in a form substantially approved by the County Attorney. 7. The County finds that adoption of this ordinance is necessary for the immediate preservation of the public health, safety and welfare of the citizens of Pitkin County. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that: The Chair (or Chair’s designee) shall be authorized to sign an agreement and such further instruments as shall be necessary to convey to Simpson the County’s interest in the Transferable Development Right Certificate which shall be issued for severance of development rights to the Tariff Lode Mining Claim and within a reasonable time thereafter to issue a TDR Certificate in Simpson’s name. ._____-2010 ORDINANCE NO TH INTRODUCED AND APPROVED AT THE REGULAR MEETING ON THE 9 DAY OF JUNE 2010 AND SET FOR SECOND READING AND PUBLIC HEARING ON RD THE 23 DAY OF JUNE 2010. NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES TH WEEKLY ON 13 DAY OF JUNE 2010. RD ADOPTED AFTER SECOND READING AND PUBLIC HEARING ON THE 23 DAY OF JUNE 2010. PUBLISHED AFTER ADOPTION IN THE ASPEN TIMES WEEKLY ON THE _____ DAY OF __________ 2010. THIS ORDINANCE IS EFFECTIVE ON JUNE 23, 2010. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ By: _____________________________ Jeanette Jones George Newman, Chair Deputy County Clerk Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ _________________________________ John Ely, County Attorney Hilary Fletcher, County Manager 2 TRANSFERABLE DEVELOPMENT RIGHT CONTRACT OF PURCHASE AND SALE-PARTIAL INTEREST THIS AGREEMENT is made and entered into effective the ____ day of ___________ 2010, by and between Steven P. Simpson and Georgiana K. Simpson, trustees of the Simpson Family Trust, dated July 14, 2004 ("Simpson"), whose address for purposes of this agreement is 913 E. Navajo Twins Drive, Post Office Box 330, Bluff, Utah 84512-0330, and the Board of County Commissioners of Pitkin County, Colorado a body corporate and politic, with its address for rd purposes of this agreement at Courthouse Plaza, 530 E. Main Street, 3 Floor, Aspen, Colorado 81611("County”). RECITALS WHEREAS, Simpson is the owner of an undivided interest in and to the Tariff Lode Mining Claim, located in Pitkin County, Colorado; WHEREAS, County is the owner of the remaining undivided interest in the Tariff Lode Mining Claim; WHEREAS, Simpson and County desire to sever the development rights relating to said mining claim; WHEREAS, in return for the severance of the development rights therefrom, County will issue one (1) certificate of Transferable Development Right; WHEREAS, Simpson desires to acquire County’s interest in said Transferable Development Right certificate; WHEREAS, County desires to sell its interest in the Transferable Development Right certificate to Simpson; WHEREAS, the parties hereto desire to memorialize their agreement in writing. NOW THEREFORE, in consideration of the mutual terms, covenants and conditions set forth herein, the parties hereto agree as follows: AGREEMENT ARTICLE I DEFINITIONS AND SALE 1.01Definitions. As used in this agreement, the following terms shall have the meanings set forth below: A. "Tariff": Tariff Lode Mining Claim (U.S. Mineral Survey No. 5410), as patented and described in that certain United States Patent No. 27725 dated December 23, 1896 and recorded May 20, 1949, in Book 175 at Page 188. Assessor’s Parcel Number: 273513400030 B. "Simpson Interest": An undivided 19/32 ownership interest in the Tariff. C. "County Interest": An undivided 13/32 ownership interest in the Tariff. D. “TDR”: Transferable Development Right certificate issued by the County relative to the severance of the development rights associated with the Tariff. 1.02Severance of Development Rights. Simpson and County shall surrender the development rights associated with the Simpson Interest and the County Interest. In return for said surrender, County shall issue the TDR. In conjunction with the surrender of the development rights in the Simpson Interest, Simpson shall execute and deliver to County any and all documents and things necessary to acknowledge that the development rights has been severed therefrom. 1.03Purchase and Sale. Simpson shall purchase County’s proportional interest in the TDR, and County shall convey same to Simpson on the terms and conditions set forth herein. 1.04Issuance in Simpson’s Name. Upon execution of this agreement, County shall within a reasonable time issue the TDR in Simpson’s name, and Simpson shall thereafter be authorized to market and sell the TDR in Simpson’s individual name. Simpson shall bear all costs and expenses associated with such sale, including but not limited to real estate commissions and marketing costs. ARTICLE II PURCHASE PRICE AND PAYMENT 2.01Purchase Price. For and in consideration of the conveyance of the County’s portion of the TDR to Simpson, Simpson shall pay County the sum of One Hundred Thousand and 00/100 2 Dollars ($100,000.00). 2.02Payment of Purchase Price. The purchase price for the County’s Interest shall be paid in full in cash or certified funds at the earlier of: A. One (1) year from the date the TDR is issued, or B. The closing of the sale of the TDR. 2.03Payment through Escrow. Should Simpson enter into a contract to sell the TDR prior to the expiration of the date set forth in subparagraph 2.02(A) above, Simpson shall ensure that County is receives the purchase price at the time any such sale closes. ARTICLE III GENERAL PROVISIONS 3.01Notices. Any and all notices, designations, consents, offers, acceptances or other communications provided for herein shall be effected either by personal service in writing, by confirmable electronic service or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices are to be addressed to the parties at their addresses set forth in the introductory paragraph of this agreement or to such other addresses as may be designated pursuant to this Section 3.01. Notices delivered personally or by confirmable electronic service shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of the date of mailing. 3.02Attorneys' Fees. In any action brought to enforce the provisions of this agreement, or for the breach of or to restrain the breach of any term of this agreement, the prevailing party shall be entitled to receive from the other parties named in such action a reasonable attorneys' fee, whether incurred before, during or after trial or before, during or after appeal, or in collection, as determined by the court or hearing officer in such action or in a separate proceeding to recover same. 3.03Invalid Provisions. The invalidity or unenforceability of any provision of this agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted and shall not affect the validity or enforceability of any other provision. 3.04Modifications. No modification of this agreement and no waiver of any right created hereunder shall be valid unless the same is in writing and signed by the party to be charged. 3 3.05Agreement Binding on Successors. Subject to the restrictions on transfer contained herein, this agreement shall be binding on the executors, administrators, heirs, personal representatives, successors, donees and assigns of all parties hereto. 3.06Entire Agreement. The parties hereto agree that this document contains all of the terms and conditions agreed to by them relative to the matters set forth herein, and that no promise, agreement or representation not contained herein shall be binding on any party. 3.07Execution of Documents. The parties hereto agree to execute any and all further relevant documents or agreements which may be necessary to effectuate the purpose or terms of this agreement. 3.08Governing Law. This agreement shall be governed by and construed in accordance with the laws of the state of Colorado. Further, in the event of litigation or arbitration, the exclusive venue and place of jurisdiction shall be Pitkin County, Colorado. 3.09Recitals. The recitals set forth above are incorporated herein by this reference. 3.10Time of the Essence. Time is of the essence of this contract. 3.11Gender. As used in this agreement, the masculine, feminine or neuter gender, and the singular or plural number, shall be deemed to include the others whenever the context so requires. 3.12Counterparts; Effectiveness. This agreement may be signed in any number of counterparts, and the signatures delivered by telecopy, each of which shall be deemed an original, with the same effect as if the signatures were upon the same instrument and delivered in person. This agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other parties hereto. 3.13Counsel Review. The parties hereto acknowledge and agree that: A. Each party and his, her or its counsel has reviewed and negotiated the terms and provisions of this agreement, and have contributed to its revision; B. The rule of construction that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this agreement; and 4 C. The terms and provisions of this agreement shall be construed fairly as to all parties hereto and not in favor of or against any party, regardless of which party was generally responsible for the preparation of this agreement. Executed at Bluff, San Juan County, Utah, effective as of the day and year first set forth above. SELLER: Board of County Commissioners of Pitkin County, Colorado By: _________________________ Its: _________________ BUYER: The Simpson Family Trust, dated July 14, 2004 By: _________________________ Steven P. Simpson, Trustee By: _________________________ Georgiana K. Simpson, Trustee 5