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HomeMy WebLinkAboutbocc.con.217.2013� RECEPTION#: 601977, 07/30/2013 at Eagie County, CO 201301855 11:23:38 AM, ' ' Teak J Simonton 01/29/2013 t OF 7, R $0.00 Doc Code RGT REFUSAL Pgs: 7 09:1829 AM Janice K. Vos Caudill, Pitkin County, CO REC: $0.00 �7�RROVED`13Y oo�: $o.00 Recording Requested By. ��t��'��E Pitkin County # ��� .���v� L•ON�AL+-��vC'�7• v10� 3 � Upon Recording Return to: � Original executed document to Pitkin County J � RIGHT OF FIRST REFUSAL AGREEMENT , a � This Right of First Refusal Agreement (the "A�reement") is made and entered into on the 18 day of Januar}�, 2013 by and between BOARD OF COLJNTY COMMISSIONERS OF �� PITKIN COCJNTY, COLORADO ("Pitkin Countv'), EAGLE COtJNTY, COLORADO ("Eaele j a- Countv") (collectively the" Counties'), and 1/2 AS RANCH HOLDINGS, LLC, a Colorado 9 � limited liability company ("1/2 AS Ranch"). :1 � .Z � This Agreement is made with reference to and in reliance upon the following facts and , � � circumstances: �� � WHEREAS, 1/2 AS Ranch has sold and conveyed to Pitkin County the lands legally c`2 N described as Parcel 1, according to�e Subdivision Exemption Plat, Red Ridge Subdivision � � Exemption, recorded rru,� L9,as eception No. i30� , Eagle County, Colorado (the "Open � � �ace Parcel"); � � C � � WHEREAS, Eagle County contributed to the acquisition of the Open Space Parcel and � holds a conservation easement encumbering the Open Pace Parcel; WHEREAS, in connection with 1/2 AS Ranch's sale.and conveyance of the Open Space Parcel to Pitkin County, 1/2 AS Ranch has retained ownership of adjacent lands legally described as Parcel 2, according to the Subdivision Exemption Plat, Red Ridge Subdivision Exemption, recorded January�, 2013, as Reception No. �l�o�r , Eagle County, Colorado together with three thousand five hundred (3,500) shares of the stock in the Home Supply Ditch Company (the "Retained ParceP'); and WHEREAS, as provided for herein, the Counties and 1/2 AS Ranch desire to provide for 1/2 AS Ranch's grant to the Counties of a right of first refusal with respect to the Retained Parcel as provided for herein. NOW, THEREFORE, in consideration of the purchase of the Open Space Parcel by Pitkin County, the covenants, conditions and terms hereof, in addition to other valuable consideration, the receipt and sufficiency of�vhich are hereby acknowledged, the parties agree as follows: 1. 1/2 AS Ranch's Receiot of Offer to Sell or Offer to Purchase Retained Parcel. Except as expressly provided for in Section 4 below, if, at any time during the term of this Agreement, 1/2 AS Ranch, or its successor in inYerest, enters into a written contract with a third party providing for 1/2 AS Ranch's agreement to sell the Retained Parcel (the "Third Partv Contract"), uus aeias�z2�a.i -1- 1/2 AS Ranch shall send the Counties two (2) counterparts of a written contract for the sale of the Retained Parcel (the "Purchase and Sale Agreemenf'). Such Purchase and Sale Agreement shall embody the terms and conditions of the Third Party Contract, shall provide for the sale of the Retained Parcel for cash only, and both counterparts of which shall have been duly executed by 1/2 AS Ranch. The Counties, either jointly or one ar the other separately, shall have the right, within sixty (60) days after the receipt of the Purchase and Sale Agreement, to agree to purchase the Retained Parcel on the terms and conditions set forth in the Purchase and Sale Agreement. In the event the Counties or Pitkin County or Eagle County elects to accept the offer embodied in the Purchase and Sale Agreement the party desiring to accept must do so by executing the Purchase and Sale Agreement and returning a fully executed counterpart of the Purchase and Sale Agreement to 1/2 AS Ranch within tbe sixty(60) day period, together with the full amount of any earnest money deposit specified in the Purchase and Sale Agreement. Upon the execution and delivery of the Purchase and Sale Agreement to 1/2 AS Ranch, 1/2 AS Ranch shall provide tor the termination of the Third Party Contract, and the Third Party Contract shall thereafter be of no force or effect. 2. The Counties' Rejection of Offer. If Pitkin County and/or Eagle County do not accept the offer embodied in the Purchase and Sale Agreement within the time period provided in Section I above, then the offer embodied in the Purchase and Sale Agreement shall be deemed withdrawn by 1/2 AS Ranch, and 1/2 AS Ranch shall be free for a period of six (6) months afrer the expiration of such sixty (60) day period to sell the Retained Parcel pursuant to the Third Party Contract, and free and clear of this Agreement, provided that such terms may, but need not, provide for a cash-only sale of the Retained Parcel. In the event the Retained Parcel is not sold to a third party within such six (6) month period, then any further offer to sell or to purchase the Retained Parcel must first be submitted to the Counties in accordance with the provisions of Section 1 above. 3. Modification of Financial Terms of Offer. In the event 1/2 AS Ranch shall, during the aforesaid six (6) month period (or during a subsequent six (6) month period as provided in this Section 3), decide to revise the financial terms of any sale of the Retained Parcel as provided for in the Third Party Contract upon terms less favorable to I/2 AS Ranch than those contained in any Purchase and Sale Agreement previously submitted to Pitkin County, (such less favorable financial terms being hereinafter referred to as a "Contract Amendment"), then 1/2 AS Ranch shall, with respect to each such Contract Amendment, before agreeing to sell the Retained Parcel to a third party on the terms embodied in any Contract Amendment, offer to sell the Retained Parcel to the Counties on the terms contained in the Contract Amendment. The terms of the Contract Amendment shall be embodied in a new Purchase and Sale Agreement for the sale of the Retained Parcel, which shall be submitted to the Counties in accordance with the requirements of Section 1 above. If Pitkin County and/or Eagle County do not accept the new Purchase and Sale Agreement within sixty (60) days after the receipt of the new Purchase and Sale Agreement and the written notice referred to in Section 1 above, then 1/2 AS Ranch shall be Pree for a period of six (6) months from the expiration of the sixty(60) day period to sell the Retained Parcel to third parties pursuant to the Contract Amendment free and clear of this Agreement. F3US RE/4�72278.1 -2 . 4. Certain Convevances of Retained Parcel Exempt from Right of First Refusal. Notwithstanding any other term or provision of this Agreement, the following con��eyances of the Retained Parcel shall not be subject to the terms and conditions of this Agreement: a. Any conveyance of the Retained Parcel from 1/2 AS Ranch to Alex R ("Alec") Parker; and b. Any subsequent conveyance of the Retained Parcel from Alex R. ("Alec") Parker by devise, descent, order or decree. In the event that either of these two conveyances occurs, Pitkin County shall receive notice ofthe conveyance and the obligations of 1/2 AS Ranch herein shall pass to the successor in interest of the Retained Parcel. 5. Prioritv. This Agreement shall be senior and superior to the legal operation and effect of any present mortgage or deed of trust that is now or hereafter a lien on the Retained Pazcel,'if any. 1/2 AS Ranch shall fumish all necessary waivers and subrogation statements at time of execution. 6. Term. The term of this Agreement shall be twenty (20) years from the date hereo£ If the Right of First Refusal is not exercised on or before sale of the Retained Parcel within such 20-year period, and there has been no mutual written agreement by the Parties to extend the term of this Agreement, the right of first refusal herein shall automatically cease and terminate, neither Party shall have any further rights hereunder, at law or in equity, and this Agreement shall be null and void, all without further action or documentation by either Party. 7. Riehts and Obligations of the Parties if the Right of First Refusal is Exercised. In the event that the Pitkin County and/or Eagle County exercises its rights to purchase within the time and in the manner herein provided, then thereafter the rights and obligations of Pitkin County and/or Eagle Countyand 1/2 AS Ranch with respect to the Retained Parcel shall be governed by the terms and conditions contained in the Purchase and Sale Agreemen[ referenced in Section 1 above or the New Offer referenced in Section 3 above, as the case may be. Pitkin County and/or Eagle County shall have the right of specifie performance. 8. Assienment. Pitkin County may only assign its rights hereunder to Eagle County or Town of Basalt, Colorado by providing notice of said assignment to 1/2 AS Ranch. 9. Notices. Any notice, demand, or document which any party is required or may desire to give, deliver or make to the other party shall be in writing and may be personally delivered or given by United States certified mail, return receipC requested, addressed as follows: To 1/2 AS Ranch, LLC: 1087 Hook Spur Road Basalt, Colorado 81621 I3US RE/4572278.1 _3 . � ' To Pitkin County: c/o Open Space and Trails Director 530 East Main Street Aspen, Colorado 81611 To Eagle County: c/o Eagle County Attomey's Office ' PO Box 850 500 Broadway Eagle, Colarado 81631 With a copy to: c/o Eagle County Open Space Director PO Box 850 500 Broadway Eagle, Colorado 81631 Any notice, demand or document so given, delivered or made by United States mail shall be deemed to have been received on the earlier of the date actually received or the third business day afrer the same is deposited in the United States mail as certified matter, addressed as above provided, with postage prepaid, or addressed, at the address of record for real property tax assessment notices with respect to the Open Space Parcel and the Retained Parcel, as � appropriate. Any party may change its address for the purpose of this Section by giving written notice of such change to all other parties in the manner provided for in this Section. Should either party's interest pass to another individual or entity, notice of such assignment, devise, descent; order or decree shall be given to the other parry within ten (10) days of the transfer. 10. Miscellaneous. a. Notice of Default, Rieht to Cure. In the event oY any default under the provisions of this Agreement, the non-defaulting paRy shall, prior to the exercise of any right or remedy, give the party alleged to be in default written notice of such default together with the right for a period of ten (10) days afrer receipt of such notice to cure said default. If an alleged default by its nature is not capable of being cured within the time provided, the party alleged to be in default shall, provided such party is proceeding with all due diligence, have up to an additional twenty(20) days to cure said default. If a default is noC cured within the time provided or any exiension thereoP(which right to cure period shall not under any circumstances exceed in the aggregate thirty (30) days), the non-defaulting party shall then and thereafrer be free to pursue any right or remedy allowed by this Agreement or otherwise by law or equity. b. Remedies. Each party shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Agreement. If any sale, transfer, or ofher distribution or conveyance occurs in violation of this Rus aeianzz�a.i -4- Right of First Refusal, the Counties shall have the right to require that such saie, transfer, or other distribution or conveyance be ordered void by a court of competent jurisdiction. If any court proceedings are instihited in connection with the rights of enforcement and remedies provided in this Agreement, the substantially prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. c. No Waiver. The failure of either party to insist upon the strict performance of any provisions of this Agreement or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the future of any such provision. d. Amendments in Writing. This Agreement may not be amended, nor may any rights hereunder be waived, except by an instrument in writing executed by the parties hereto and duly rewrded in the real estate records of Eagle County, Colorado. e. Colorado Law. The interpretation, enforcement or any other matters relative to this Agreement shall be construed and determined in accordance with the laws of the State of Colorado. f. Run With the Land. All the provisions of this Agreement, including the benefits and burdens created thereby, shall run with the land and shall be binding upon successive owners of the Retained Parcel from time to time. This Agreement is made subject to any existing easements, reservations, restrictions or rights of way of record. g. Correction Documents. In the event any clerical or other errors aze found in this Agreement the parties agree to promptly execute, acknowledge, initial and/or deliver as necessary any documentation in order to correct the erroneous document, or description. h. Bindinr Effect. All provisions of this Agreement inure to the benefit of and are binding upon the parties hereto, their successors, assigns and personal representatives, and any other owner(s) of the Open Space Parcel and the Retained Parcel from time to time. i. Counterparts and Facsimile Si�nature. This Agreement may be executed in multiple counterparts each of which shall constitute an original but all of which when taken together shall constitute one and the same document. The parties hereby agree that this 5 Agreement may be offered and/or accepted by facsimile communication and that delivery of facsimile signatures shall be deemed the same as delivery of original signatures. j. Severabilitv. If any provisions of this Agreement shall be invalid, illegal or unenforceable, it shall not affect or impair tbe validity, legality or enforceability of this Agreement itself or of any other provision hereof, and there shall be substituted for Yhe affected , provision, a valid and enforceable provision as similar as possible to the affected provision. aus arias�zva.i -5- k. Entire Aereement. This Agreement and any other documents made or given in connection herewith or therewith constitute the entire understanding and agreement between the parties with respect to the matters provided for herein.and supersedes all prior written or oral understandings and agreements between the parties with respect thereto. IN WITNESS WHEREOF, the parties have executed this Right of First Refusal Agreement to be effective as of the date set forth above. 1/2 AS RANCH HOLDINGS, LLC, a Colorado limited liability company By: Andrew C. Saltons all', an er Date: � / BOARD OF COUNTY COMMISSIONERS PIT CIN COUNTY, C ORADO By: ,2.p,�r George Newm n, Chair an Date: d�� � EAGLE COUNTY, COLORADO, BY AND THROUGH THE RD OF CO TY COMMISSIONERS By: Jon St v ey, Chairman Date: � � Z4 �i3 BUS RF,/4572278.1 _6 STA7'E OF COLORADO ) ) ss. � � � COUNTY OF PITKIN ) Subscribed, sworn to and acknowledged before me this�8 day of January, 2013, by Andrew C. Saltonstall as Manager of 1/2 AS Ranch Holdings, LLC, a Colorado limited liability company. Witness my hand and official seaL i�p��t My commission expires: 7•//•iS \d�a JI-�/ Gd� �NO��Y� �a _!v1 Notary Public � PUBLIC :' ��'•.......� STATE OF COLORADO ) OF�O� ) ss. �,����pn.omtrtms COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this���ay of January, 2013 by George Newman as Chairman of the Board of County Commissioners of Pitkin County, Colorado. ````��e��!�i�c���� ���•`�a"... •hey���. WITNESS my hand and seal. � My Commission Expires = ��`�'P�- _ My com ission expire • August 4,2015 _ �� _ Not ry Public 'd�e''�'G'��aa�.��` /�����fl 1 1►?���� STATE OF COLORADO ) � ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this J"i" day of January, 2013 by Jon Stavney as Chairman of the Board of County Commissioners of Eagle County, Colorado. WITNESS my hand and seal. My cqmmission expires: �' 2�-f �� �� �_c���� �,��,� DEBORAH LYNN CHURCHILL NOTARY PUBLIC Notary Public STATE OF COLORADO MY CAMMISSION EXPIRES 3I2M2015 UUS RE/4572278.1 � '7' .