HomeMy WebLinkAboutbocc.ord.059.2001 AN ORDINANCE OF THE COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO,
APPROVING SALE OF THE HOT SPRINGS RANCH HOUSE PARCEL UNDER THE
TERMS OF ORDINANCE 01-18 OF 2001 AND MAY 31, 2001 PROJECT OWNERSHIP
AND SALE AGREEMENT
ORDINANCE# 01-�051
RECITALS
1. Under Ordinance 01-18 the Board of County Commissioners authorized the Open
Space Purchase of the 145 acre Hot Springs Ranch with a proviso that the
approximately 8.5 acre "house parcel" lying between the Crystal River and
Highway 133 would be held by the Conservation Fund and resold and the net
proceeds returned to the Open Space Fund.
2. Under Paragraph 5 of the "Project Ownership and Sales Agreement" between the
County and the Conservation Fund, dated May 31, 2001, County permission is
required prior to the sale of any interest by the Fund.
2. The Conservation Fund has been offered $950,000 for the house parcel.
NOW THEREFORE, BE IT ORDAINED, by the Board of County Commissioners of Pitkin
County, Colorado as follows:
1. The Board approves the sale of the house parcel for $950,000 pursuant to Paragraph 5
of the "Project Ownership and Sales Agreement" between the County and the
Conservation Fund, dated May 31, 2001.
2. The Chair is authorized to execute a release of Deed of Trust of the property
following approval of the form by the County Attorney's office and Open Space
Director, and is authorized to execute such other documents, as may be necessary to
finalize this transaction following approval of the form of those documents by the
County Attorney's office and Open Space Director.
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INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 5th
DAY OF DECEMBER, 2001.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE WEEKEND EDITION
OF THE ASPEN TIMES ON THEDAY OF DECEMBER, 2001.
APPROVED AT SECOND READING AND PUBLIC HEARING ON THE ath
DAY OF DECEMBER, 2001.
PUBLISHED AFTER ADOPTION IN THE WEEKEND EDITION OF THE
ASPEN TIMES ON THE jAjk— DAY OF , 2001
ATTEST: BOARD OF COUNTY
COMMISSIONERS
OF PITKIN COUNTY, COLORADO
"�&.gg-a,
Jea tte Jones Mick Irela I
Deqfity Clerk Chair
Date:
APPROVED AS TO FORM:
John Ely Hilary S th (t-2 .vl
Co ty Attorney County anager
Da a Will,Directo
Open Space and Trails Program
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LEGAL DESCRIPTION
SALE PARCEL
A TRACT OF LAND SITUATED IN THE EI/2SV1/4 OF SECTION 33, TOWNSHIP 9
SOUTH, RANGE 88 VEST OF THE 6TH P.M. LYING EASTERLY OF COLORADO STATE
HIGHWAY NO. 133 AND LOT 3 IN SECTION 4, TOWNSHIP 10 SOUTH, RANGE Be
WEST OF THE 6TH P.M. AND BEING A PORTION OF THAT CERTAIN SUBDIVISION
PLAT AS FILED FOR RECORD UNDER RECEPTION NO. 214317 IN PLAT BOOK 7 AT
PAGE 89 AND AS AMENDED BY THAT SURVEY AS FILED FOR RECORD IN PLAT BOOK
16 AT PAGE 8Z BEING DESCRIBED BY J METE TY OF PAND(BOUNDS MORE CPARTICULARLY D TRACT OF D AS FOLLOWS
COMMENCING AT THE NORTH 1/4 CORNER OF SAID SECTION 4, A GENERAL LAND
OFFICE BRASS CAP MONUMENT FOUND IN PLACEITHENCE N.89.59'59'W. ALONG
THE SOUTH LINE OF SAID E112SWI14 ID67.40 FEET TO A POINT ON THE
EASTERLY BEGINNING'IITHENCE ALONG SAIDD STATE HIGHWAY EASTERLY RIGHT OF WAYTHEEFOLRUE POINT OF
LOWING
COURSES; THENCE N.05.5121'W. 98.24 FEEL THENCE 974.40'00'E.
51.25 FEET; THENCE N.13'21'00'W. 306.45 FEET; THENCE N.05'51'21'V.
61040 FEET, THENCE DEPARTING SAID EASTERLY RIGHT OF WAY
5.90'00'00'E. 43.23 FEEL TO THE CENTER THREAD OF THE CRYSTAL RIVER
AS O IVER HE FOLLOWING COURSE& THENCE SE14.410'09'E.H4393NTER FEETTHREAD OF
SAID
THENCE 5.04'DB'31'E. 294.70 FEET; THENCE 5.24.59'S9'E. 627.29 FEET;
THENCE 5.28'46'24'E. IBM FEET1 THENCE S08.32'11E. 117.32 FEET;
NCE S.08*43'
THENCE 5.03'22'07'W. 16THENCE S.05*22'49'V. 4.65 FEEL THENCE S.18'26'48 V. 89.58 FEET;
THENCE 5.13.00'1 E. 103.2 TI THENCE E 0 FEET;
0 FEET THENCE S,23.25'OB'E. 28.50FEET
TO A POINT ON THE SOUTH LINE OF PARCEL 'B' AS SHOWN IBd SAID MAP
REC13RDED IN PLAT BOOK 16 AT PAGE 921 THENCE ALONG SAID SOUTH LINE
N.89'58'22"W. 57.62 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY OF
SAID
Y T E133- THENCE ALONG SAID 39-45 FEET;
RIGHT OF WAY THE
FOLLOWING COURSES) THENCE N.05'S2'17
THENCE 917.10'47'V. 102.0D FEEL THENCE N.05.51'47'V. 788.94 FEET
TO THE 'TRUE POINT OF BEGINNING".
SAID TRACT OF LAND CONTAINS 373,791 SO.FT. OR 8.581 ACRES, MORE OR
LESS.
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A
PROJECT OWNERSHIP AND SALES AGREEMENT
THIS AGREEMENT made and entered into this day of May, 2001, by and
between the Board of County Commissioners of Pitkin County, Colorado ("County")
and The Conservation Fund, a Maryland non-profit corporation (the "Fund");
Recitals:
A. The County has entered into a purchase agreement to purchase
approximately 148 acres known as the Hot Springs Ranch (the "Contract") as shown on
the site plan attached hereto as Exhibit A (the "Property").
B. The County wishes to protect the environmental value of the Property by
acquiring all the lands east of the Crystal River for permanent open space while causing
the existing residence and lands siteiated west of the Crystal River (the "House Parcel")
to be conveyed directly to the Fund by the seller, as provided herein, and retaining the
Fund to re-market the House Parcel to a third party.
C. The Fund has extensive experience and expertise in the acquisition of
property threatened by development and in the re-marketing of part or all of such
property subject to conservation easements or as dedicated open space.
D. The County desires tr etain the Fund as an independent contractor and not
as the County's agent, to provide consulting, administrative, sales and other services
related to the ownership, strategic planning and sale of all or part of the Project and the
Fund agrees to be retained on such basis.
E. The parties intend by this agreement to set forth the duties of and
compensation to the Fund in connection with the performance of such services.
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10:55 LAW OFFICES NO.332 P03
Agreement
NOW, THEREFORE, in consideration of the premises and of the covenants
herein made, the parties hereto agree as follows:
1 . Appointment of the Fund. The County hereby retains and appoints the
Fund, as an independent contractor and not as an agent, to administer, implement and
supervise the sale of the House Parcel, and the Fund hereby accepts such appointment.
2. Due Diligence. Conveyance to the Fund. During the County's period of
inspection for purchase of the House Parcel under the Contract the County shall provide
copies of all due diligence materials pertaining to the House Parcel, including, but not
limited to, title commitments, exceptions to title, a deed by which the current owner of
the House Parcel holds title, environmental hazards reports, appraisals, surveys,
building inspection reports, permits and approvals (the "House Parcel Due Diligence").
Prior to Closing the County shall determine that the House Parcel is in compliance with
all applicable County regulations concerning safety and habitability of the structure. and
that the water and septic systems are in compliance with all applicable State, County and
County Health Department Regulations (the "Habitability Compliance"). The Fund
shall have the right to review and approve the House Parcel Due Diligence prior to
accepting title to the House Parcel. However, if the Fund decides that it will not take
title to the House Parcel based upon matters disclosed during the House Parcel Due
Diligence, the Fund must exercise its right to do so by giving Notice to the County prior
to the County's Title and Inspection Objection deadline, as established by the Contract.
In the event the Fund accepts the House Parcel Due Diligence, the Fund will take title to
the House Parcel upon confirmat'on of the Habitability Compliance, and the County
G As(3 1
e5 23/2on1 10:5 LAID OFFICES NO.332 PO4
shall cause the House Parcel to be conveyed by the Seller to the Fund by special
warranty deed in a form acceptable to the Fund, and shall cause a title insurance policy
to be issued to the Fund in the amount of the purchase price of the House Parcel- The
Seller and the County shall be responsible for ensuring the conveyance of the House
Parcel to the Fund complies with applicable land use regulations, including subdivision
laws and regulations, such that the House Parcel is a lawfully created parcel which may
be separately owned and conveyed.
3. Purchase Price, Loan, The Purchase Price for the House Parcel shall be
$450,000.00. The County agrees to loan to the Fund the amount of the Purchase Price,
together with all closing costs and expenses of the Fund in acquiring the House Parcel,
including without limitation, the cost of the owner's title insurance policy issued to the
Fund, any transfer or sales tax or fee, and all other closing costs and fees (the "Loan").
The County will fund the Loan at the closing date. The Loan shall be non-recourse to
the Fund and shall not bear interest or require installment payments and shall have a
maturity date two (2) years after the date of funding. At the closing, the Fund shall
execute a promissory note in the attached form (the "Note") and deed of trust (the
"Deed of Trust") encumbering the House Parcel and securing repayment of the Note in
a form acceptable to each of the parties. The intent of the parties is that the County
shall be paid an amount equal to the net proceeds of the sale of the House Parcel by the
Fund after payment of Sales Closings Costs (described in paragraph 6, below), and after
payment of the Reimbursable Costs and Ownership Costs to the Fund (the "Balance,
described below in paragraph 6) in full satisfaction of the Note and for Release of the
Deed of Trust. Thus, if the Balance is more than the purchase price for the Ilouse
C.'werdau\tel\grcenwnldlCoonty Agt 3 3
LHW OFFICES NG.332 905
Parcel, the County will receive the excess amount, and if the Balance is less than the
purchase price for the House Parcel, the Balance shall be paid to the County as full
payment of the Note and Deed of Trust.
4. Dealing with Site. The Fund has provided, and will continue to provide,
on behalf of the County, such advice and assistance as may be requested by the County
in negotiating and consummating the parties' joint purchase of the Property.
5. Dealinas with the County. The Fund will confer, consult with, and assist
the County in all decisions with respect to physical and functional designs, relationships
and uses, selection of building sites, land use applications, sales of any interest, and
similar and related matters at the .House Parcel. Pursuant to such consultation, the Fund
may seek any land use approvals which the parties mutually agree are advantageous to
the marketing of the House Parcel.
6. Marketing: Sale of House Parcel. The Fund shall prepare a marketing plan
for the House Parcel which will include the listing price and terms of sale (the
`Marketing Plan"). The Marketing Plan shall be approved in writing by the County.
After approval of the Marketing Plan the Fund shall market a fee simple interest in the
House Parcel to a third party purchaser. Such conveyance may be subject to a
conservation easement, the terms of which shall be agreed upon by the County. Prior to
accepting any offer for purchase of the House Parcel, the Fund shall obtain the written
approval of the County, which approval shall not be withheld if the sale complies with
the Marketing Plan, and which approval otherwise shall not be unreasonably withheld
(the `Approved Sale"). The net proceeds of the Approved Sale to a third party, after
payment of all taxes and assessments, closing costs, title insurance premiums, recording
C.\wor(laia\{ci)greenwoW\Coumy Agi 3 4
65i=''Si=661 16:56' LAW OFFICES N0.332 906
fees, transfer taxes and assessments, real estate sales commission, and ail other closing
costs and fees (the "Sale Closing Costs"), shall first be applied to pay to the Fund any
of the Reimbursable Costs and Ownership Costs, described below, that have not been
previously reimbursed to the Fund by the County. The balance of such net proceeds (the
"Balance") shall be paid to the County in full repayment and satisfaction of the Loan.
Upon payment of the Balance to the County, the County shall execute a release of the
Deed of Trust and shall cancel the Promissory Note and mark it "paid in full" and return
the original Promissory Note to the Fund.
7. Sale Services. In performing services hereunder, the Fund shall use its
best reasonable efforts to do and carry out the following;
a. Find prospective buyers;
b. Show the House Parcel to prospective buyers;
C. Keep the County advised of the status of all of the Fund's activities
and negotiations with respect to the sale of the House Parcel;
d. Obtain such advertising of the House Parcel as the County shall
direct;
C. Apply for any land use approvals necessary to implement the
marketing plan for sale of the House Parcel.
S. Outside Brokers and Land Use Planners. If any outside brokers are
involved in obtaining a new purchaser of the House Parcel on behalf of or in
conjunction with the Fund, the fee for such service shall be agreed upon in advance in
writing between the Fund and the outside broker (the "Outside Broker"), which fee
shall not exceed the usual and customary broker commission generally paid on similar
transactions in Pitkin County, Colorado (the "Broker's Fee") The amount of the
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0`i25. _001 10:SS LAW OFFICES NU.--32 D07
Broker's Fee and the selection of the broker shall be subject to the approval of the
County prior to the execution of a listing contract with a broker, Any Broker's Fee shall
be deducted from the gross sales proceeds as set forth above. The amount of the
broker's Fee is not part of the Reimbursable Costs or Ownership Costs, described
below. The Fund may consult with architects, engineers, or land use planners
(collectively, the "Planners") for the House Parcel and will keep the County informed
in all matters pertaining to the services to be rendered by the Planners.
9. Reimbursement and ^avment of Certain Expenses and Ownership Costs.
The Fund may incur direct costs, including, but not limited to, legal fees, environmental
reports, engineering, architectural, appraisal and/or Planners' fees, surveying costs,
marketing fees and costs, travel expenses, copying, telephone and other costs, during the
term hereof (the "Reimbursable Costs"). In no event shall the Reimbursable Costs
exceed $30,000 without express written approval by the County. In addition, the Fund
may incur direct costs, without l:mitation, for payment of taxes, assessments, fees,
insurance, maintenance and other costs of ownership ("Ownership Costs"). The Fund
shall provide the County a quarterly accounting of the Reimbursable Costs and
Ownership Costs and the County shall pay such Reimbursable Costs and Ownership
Costs to the Fund within thirty (30) days of receipt of the quarterly accounting. Any
Reimbursable Costs or Ownership Costs not paid within thirty days after receipt of the
quarterly accounting shall bear interest at the rate of 8% per annum thereafter. Any
Reimbursable Costs and Ownership Costs not previously paid to the Fund shall be paid
from the net proceeds of the sal:: of the House Parcel as described in Paragraph 6,
above.
C:�wordoto\+cl\grccnwald\Couory Agt a
a5i75/2001 10:52 LAW OFFICES NO.332 Poe
10. Termination. At the closing of the sale of the House Parcel to the third-
party purchaser or purchasers, and after the application of the Balance as provided in
this Agreement, the County shall cancel the Promissory Note and mark it "paid in full",
and release the Deed of Trust encumbcring the House Parcel without payment of
additional funds. in the event that the House Parcel remains unsold at the end of the 2-
year term of the loan, both parties may mutually agree to extend this Agreement or, in
the event that the parties do not agree to the extension, then the portion of the House
Parcel remaining unsold shall be transferred to the County by the Fund by special
warranty deed upon the payment by the County of the Reimbursable Costs and
Ownership Costs to the Fund; in such event the County shall release the Deed of Trust
and cancel the Promissory Note and mark it "paid in full".
In the event the House Parcel is transferred to the County due to foreclosure of
the County's loan on the House Parcel or a transfer in lieu thereof, this Agreement shall
terminate and the County shall release the Deed of Trust and cancel the Promissory Note
and mark it 'paid in full", and the County shall be obligated upon such transfer and
termination to pay the Reimbursable Costs and Ownership Costs incurred by the Fund
prior to such termination. Except as herein provided, no party shall have any claim
against the other resulting from said termination and each does hereby waive any right
to the same. It is the intention of the parties that the Fund shall have no financial
obligation to the County, other than to cause the Balance of any sales proceeds to be
paid to the County or to convey the House Parcel to the County, after payment by the
County to the Fund of the Reimbursable Costs and Ownership Costs, and release of the
Deed of Trust and cancellation of the Note by the County.
C:\wor�pta\Il ftgfCrnWuldtCJUnly Agt 3 7
+525i--0'1 10;5S LAW OFFICES NO.332 909
1 l . Indemnity. To the extent permitted by law, each party shall indemnify and
save harmless the other, its affiliates and its employees and agents, to the extent not
resulting from any act, omission or failure to act of such other party, from and against
all claims, liabilities, losses, costs, damages, and expenses resulting from affirmative
acts or failures to act of the indemnifying party, its employees and. agents.
12. Assignment, Other than such transfer by operation of law which may
result from foreclosure, or transfer in lieu thereof of the County's loan on the House
Parcel, this Agreement shall not be assigned by either party without the written consent
of the other and shall otherwise inure to the benefit of and be binding on the parties
hereto and their respective heirs, administrators, executors, successors, and assigns.
13. Giving of Notices. Each notice shall be in writing and shall be deemed to
have been properly given or served by the deposit of such with the United States Postal
r
Service designated as registered certified mail, return receipt requested, bearing
adequate postage and addressed hereinafter provided, or sent by Federal Express or
similar courier for next-day delivery or by facsimile.
Each notice to the County shall be addressed a follows:
Mr. Dale Will
Director, Open Space and Trails
Pitkin County
530 E. Main St.
Aspen, CO 81611
Each notice to the Fund shall be in duplicate and addressed as follows.
Mr. Tom T. Macy
The Conservation Fund
1942 Broadway, Suite 323
Boulder, CO 80302
Fax: 303-938-3763
C 1word3ta\,ef\8reenwe1d\County Ap 3 8
05i25i2001 10:5E LRW OFFICES NO.332 910
with a copy to:
Mr. Richard Erdmann, Esq.
The Conservation Fund
1800 North Kent Street, Suite 1120
Arlington, VA 22209
Fax: 703-525-4610
or to such other address as either party hereto may, by written notice to the other, direct.
14, Force Maieure. The County and the Fund shall be relieved of the
consequences of any breach, default, penalty or deficiency hereunder which results from
a cause or causes beyond its control. Cause or causes which result from a substantial
fault or negligence of either party shall not be deemed beyond its control. Excused
causes include, without limiting the generality of the foregoing, war, insurrection,
strikes or other labor disputes, riot, interruption of transportation facilities, rationing,
civil disobedience, fire, flood, epidemic, hurricane, severe weather, explosion, action of
the elements, earthquake, acts, actions, proceedings or regulations of any governmental
authority (whether legislative, executive, administrative or judicial), and any act of God.
The existence of such causes of delay or failure shall extend the time for performance to
such extent as may be necessary to enable complete performance in the exercise of
reasonable diligence after the causes of delay or failure have been removed.
15. Effective Date. This Agreement shall be and become effective upon the
date of execution hereof, and shall continue in effect, as provided in Section 10 above,
until the sale of all or part of the Mouse Parcel and the payment of the Reimbursable
Costs to the Fund.
C'.\word3txUct\greenwald%County Agt 3 9 I�
-371t 1�:52 LRbJ OFF ICES N0. 2 911
9383763
MAY-25-2001 FRI 10�03 AM I, CONSERVATION FUND FAX NO. iv39383763 P, 01
95,,2.i/;�001 08: 15 LAW OFFICES N0.324 DII
IN WITNESS WHEREOF, the parties have executed this instrument as of the day
and year first above written,
THE CONSERVATION FUND, a THE HOARD OF COMMISSIONERS OF
Maryland neon-profit corporation PITKIN COUNTY,/C,O'LOORRADO
Its: <✓,�,��s�, �is .c,�� _ Its,_ C YI/cI
169J987.S.DDC
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_.twn.A�mh�Ayl-.nv41000M-0 AOt 1 10
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PROMISSORY VOTE
July 2. 2001
FOR VALUE RECEIVED, the undersigned THE CONSERVATION FUND, a
Maryland non-profit corporation, with offices at 1800 North Kent Street, Suite 1120, Arlington.
VA 22209 Attention: General Counsel ("Maker"), promises to pay to the order of
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,COLORADO, 530 E.
Main St. 3'a Floor, Aspen, CO 81611 ("Payee'), or at such other place as the holder of this Note
may from time to time designate in writing, the estimated sum of not less than FOUR
HUNDRED FIFTY THOUSAND AND NO/100s DOLLARS($450,000.00), in lawful money of
the United States, except as provided herein, determined and payable as follows:
Maker shall pay to Payee an amount equal to the net proceeds of sale of the property(the
"House Parcel") which is described in the Project Ownership and Sales Agreement between
the parties dated May 31, 2001 (the "Coatract"), after payment of Sales Closing Costs, and
payment of Reimbursable Costs and Ownership Costs to Maker, referred to as the "Balance',
ail as described in the Contract, which the parties estimate will be no less than $450,000.00.
Payment is due upon sale of the House Parcel by the Maker.
Maker may prepay all or any part of the principal balance of this Note at any time
without penalty or premium.
IT IS AGREED that if this note is not paid when due or declared due hereunder,the entire
principal and accrued interest thereon shall draw interest at the rate of 0%per annum, and that failure to
make any payment of principal or interest when due or any default under any encumbrance or agreement
securing this note shall cause the whole note to become due at once. or the interest to be counted as
principal. at the option of the holder of the note. The makers and endorsers hereof severally waive
presentment for payment. protest. notice of non-payment and of protest. and agree to any extension or time
of payment and partial payments before, at or after maturity. and if this note or interest thereon is not paid
when due,or suit is brought, agree to pay all reasonable costs of collection, including a reasonable amount
for attorney's fees.
The terms":Maker" and"Pavee" shall be construed to include the successors and assigns of the
respective parties to this Note. The provisions of this Note shall be binding upon the successors and assigns
of Maker and shall inure to the benefit of Payee, its legal representatives,successors and assigns. No delay
or omission on the part of Payee in exercising any of its rights under this Note shall operate as a waiver of
such right or of any other right under this Note. This Note has been executed and delivered in and shall be
governed by the laws of the State of Colorado.
C. wordataucAGreemeatd House Parcel note la I
0 27/01
The Conservation Fund— Pitkin County—Greenwald— House Parcei
Promissory Note
Page
Repayment of this Note is secured by a Deed of Trust encumbering the House Parcel located in
Pitkin County,Colorado(the"Deed of Trust'). Maker shall be liable for the payment of the indebtedness
evidenced by this Note to the full extent(but only to the extent)of the Deed of Trust that secures repayment
of this Note. In the event of default by the Maker,any proceedings brought by the Holder against the
Maker shall be limited to the preservation,enforcement and foreclosure of the Deed of Trust. No
attachment,execution or other writ of process shall be sought, issued or levied upon the assets,properties or
funds of the Maker,other than the property described in the Deed of Trust. If there is a foreclosure of the
Deed of Trust,by power of sale,assent to a decree,or otherwise,no judgment for any deficiency upon the
indebtedness shall be sought or obtained by the Holder against the Maker.
N WITNESS WHEREOF, Maker has executed this Note as of the date first written
above.
The Conservation Fund, a Maryland non-profit corporation (�
By: ` �= Title: I L5 �f Yll yl
Due: July 2, 2003 (two years after date of Note)
C',woraatattct\Greenwald House ParceMote la 2
627/01