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HomeMy WebLinkAboutbocc.ord.019.2014RECEPTION#: 612100, 07/24/2014 at 03:11:59 PM, 1 OF 9, R $0.00 Doc Code ORDINANCE CONTRACT # a / /_ � VV Janice K. Vos Caudill, Pitkin County, CO ( 4-4,Xt4,e if) AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTHORIZING THE SALE OF STAPLETON BROTHERS DITCH HISTORIC CONSUMPTIVE USE CREDITS TO MAROON CREEK, LLC ORDINANCE NO. 0/� -2014 RECITALS 1. The Board of County Commissioners of Pitkin County, Colorado ("BOCC") owns an interest in the Stapleton Brothers' Ditch water right acquired with the real property occupied by the Pitkin County Airport (the "SBD Water Right"). 2. As a result of previous Airport expansion, particularly runway and taxiway construction, the County no longer needs to apply the full amount of its water right for surface irrigation of the Airport property. Consequently, the County quantified its historic consumptive use in this water right related to the amount of land no longer needing to be irrigated at the airport. 3. By decree entered in Case No. 99CW306, District Court, Water Division No. 5, the BOCC obtained approval of a change of the SBD Water Right, confirming 220 acre-feet per year of consumptive use credits associated with the SBD Water Right (the "SBD Credits"). 4. Maroon Creek, LLC owns water rights associated with and used for the benefit of the Maroon Creek Club golf course and desires to purchase SBD Credits to augment evaporative losses associated with ponds located on the golf course. 5. Previously, the County used a portion of these historic use credits with the CWCB to protect and enhance stream flow in Maroon Creek and the Roaring Fork River, a costly and time consuming arrangement. 6. In addition to putting the County in a positive cash position, the sale of historic consumptive use credits to Maroon Creek, LLC confers the same benefits to stream health created by the CWCB instream flow program. 7. The BOCC desires to sell and Maroon Creek, LLC desires to purchase, 12 acre-feet of annual SBD Credits and the associated pro rata interest (0.436 c.f.s.) in the SBD Water Right for $120,000. 8. The BOCC and Maroon Creek, LLC have agreed to the terms, covenants and conditions of an Agreement for Purchase and Sale of Water Rights and the BOCC Chair or his designee, is hereby authorized and directed to execute the Agreement on behalf of the County and any other documents necessary to complete the transaction subject to approval as to form by the County attorney. 9. The Board 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 his designee is authorized to execute an Agreement for the Sale and Purchase of Water Rights in substantially the form approved by the County Attorney and to execute such further instruments as shall be necessary to convey to Maroon Creek LLC, 12 acre-feet of annual historic consumptive use credits in the Stapleton Brothers Ditch and the associated pro rata interest (0.436 c.f.s.) in the Stapleton Brothers Ditch water right for $120,000. INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON MAY 28, 2014. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON MAY 29, 2014. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE ( www.aspenpitkin.com ) ON MAY 30, 2014. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON JUNE 11, 2014. PUBLISHED BY TITLE ANDS ORT SUMM�RY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE DAY OF dj/ kl_ 2014. POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE POSTED ON THE O FICIAL PITKIN COUNTY WEBSITE (www.aspenpitkin.com) ON THE 1�4 DAY OF 00 K -f 2014. THIS ORDINANCE IS EFFECTIVE ON JUNE 11, 2014. ATTEST: BOARD OF COUNTY COMMISSIONERS r BYC/�( Jones Robert A. Ittner, Jr., Chair County Clerk Date: ' / APPROVED AS TO FORM: John Ely ounty orney MANAGER APPROVAL Ton Peacock, rounty Manager 2;lce bd AGREEMENT FOR THE PURCHASE AND SALE OF WATER RIGHTS This Agreement for the a Purchase Sale of Water Rights ("Agreement") is made and entered into effective the t( day of 1/14 , 2014 by and between the Board of County Commissioners of Pitkin County ("Seller") and the Maroon Creek Limited Liability Company, a Colorado limited liability company ("Buyer"). RECITALS: WHEREAS, Seller owns an interest in the Stapleton Brothers' Ditch water right, originally decreed on October 16, 1933 in Civil Action No. 3000, Pitkin County District Court, State of Colorado, in the amount of 8.0 c.f.s. absolute, with an appropriation date of June 30, 1904 ("SBD Water Right"); WHEREAS, by decree entered in Case No. 99CW306, District Court, Water Division No. 5, Seller obtained approval of a change of the SBD Water Right, confirming, inter alfa, 220 acre-feet per year of consumptive use credits associated with the SBD Water Right (the "SBD Credits"); WHEREAS, pursuant to the decree entered in Case No. 99CW306, of the 220 acre-feet per year of SBD Credits, 18 acre-feet per year was reserved for use by Seller to irrigate landscaped acreage on the Aspen -Pitkin County Airport property; WHEREAS, after entry of the decree in Case No. 99CW306 and prior to execution of this Agreement, Seller has sold or entrusted 190 acre-feet of the SBD Credits, or 6.9 c.f.s. of the SBD Water Right, to third parties; WHEREAS, Buyer owns water.rights associated with and used for the benefit of the Maroon Creek Club golf course; and WHEREAS, Seller desires to sell and Buyer desires to purchase a portion of the SBD Credits and associated interest in the SBD Water Right, as set forth herein. NOW, THEREFORE, for and in consideration of the mutual promises and covenants set forth herein, the parties agree as follows: 1. Incorporation of Recitals. The foregoing Recitals are incorporated herein as if set forth in full. 2. Agreement to Sell and Buy Water Rights. Seller agrees to sell to Buyer and Buyer agrees to buy 12 acre-feet of annual SBD Credits and the associated pro rata interest (0.436 c.f.s.) in the SBD Water Right (the "Subject Water Rights"). The 12 acre-feet of annual SBD Credits shall be available to Buyer, pro -rata, based on physical and legal availability of the SBD Water Right as measured at the Stapleton Brothers' Ditch headgate. Any shortage will be 1020334-4 shared proportionally among the owners of the SBD Water Right based on each party's ownership interest. 3. Conveyance. At closing, Seller shall convey the Subject Water Rights to Buyer by special warranty deed, free and clear of any encumbrances. 4. Purchase Price. Buyer agrees to pay Seller One Hundred Twenty Thousand Dollars ($120,000.00) (equivalent to $10,000 per acre-foot of SBD Credit) for the Subject Water Rights. 5. Earnest Money Deposit. Upon execution of this Agreement, Buyer shall deposit Twelve Thousand Dollars ($12,000.00) into an account for the benefit of Seller ("Earnest Money Deposit"). In the event that Buyer terminates this Agreement pursuant to paragraph 6 below, Seller shall refund the Earnest Money Deposit, plus any accrued interest, to Buyer within ten (10) days of Buyer's written notice of termination. 6. ` Due Diligence Review; Right to Terminate. Buyer, through any employees, agents, or other designees of Buyer's choosing, has the right to review and inspect any information relating to the SBD Credits and the SBD Water Right, including any information Seller or its employees, agents, attorneys, or engineers has pertaining to the SBD Credits and SBD Water Rights, which shall be made available to Buyer at its request. If Buyer determines, in its sole subjective discretion, that the Subject Water Rights are not satisfactory to Buyer due to: (i) Seller's title to or the status of Seller's interest -in the Subject Water Rights; (ii) the historical use of the Subject Water Rights; or (iii) Buyer's determination that the Subject Water Rights are not satisfactory for Buyer's intended uses, then Buyer may provide written notice of unsatisfactory condition ("Notice of Unsatisfactory Condition") to Seller within 60 days of the date of this Agreement. Seller and Buyer shall have 15 days from the date of Buyer's Notice of Unsatisfactory Condition to reach a resolution and, if no resolution is reached, Buyer may terminate the Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be returned to Buyer. 7. Seller's Warranties. Seller hereby makes the following representations and warranties to Buyer, which representations and warranties shall be applicable and effective as of the date of this Agreement and as of the date of closing: A. Seller owns good and marketable title to the Subject Water Rights, free and clear of any and all liens, encumbrances, and adverse claims to the use and enjoyment thereof. B. There is or has been no intent to abandon or other action taken to abandon, in whole or in part, the Subject Water Rights. C. The SBD Credits have been quantified by the water court in the manner required by law. Since the quantification of the SBD Credits in Case No. 99CW306, Seller has not undertaken any other action, change, or requantification affecting the Subject 1020334-4 Water Rights and has complied with all of the terms and conditions of the decree in that case. D. Seller has taken all actions and received all authorizations necessary to enter into this Agreement and make it a valid and binding obligation of Seller. 8. Dry -Un Covenant. Along with Seller's deed for the Subject Water Rights, and as a result of the sale to Buyer, Seller agrees to execute and deliver to Buyer a dry -up covenant for the land irrigated by the Subject Water Rights. .9. Intended Use. The parties understand and agree that Buyer intends to use the Subject Water Rights for augmentation purposes associated with the Maroon Creek Club golf course. if Buyer ever uses the Subject Water Rights for purposes other than augmentation as provided herein, Seller may, at its option, reacquire the Subject Water Rights from Buyer at a price not to exceed one-half of the purchase price hereunder. 10. Water Court Approval. The parties understand and agree that it will be necessary for Buyer to obtain water court approval for Buyer's use of the Subject Water Rights for augmentation purposes. Seller provides no assurances or guarantees as to whether the 12 acre- feet of SBD Credits will be subject to requantification in the water court approval process. Seller shall not file a statement of opposition or otherwise oppose Buyer's water court application involving the Subject Water Rights, and Seller agrees to cooperate with and assist Buyer as needed by providing information necessary or helpful for Buyer to obtain a decree in such action. The parties shall be responsible for their own costs and attorney fees associated with such action or assistance. 11. Closin . The date of closing shall be 90 days following the effective date of this Agreement. At closing, the following shall occur: A. Buyer shall remit payment to Seller in the amount of $108,000.00 (the amount of the purchase price minus the Earnest Money Deposit ($120,000 - $12,000 = $108,000)); B. Seller shall deliver to Buyer a duly executed and acknowledged special warranty deed conveying the Subject Water Rights to Buyer free and clear of any encumbrances; C. Seller shall deliver the dry -up covenant described in paragraph 8 above to Buyer; and D. The parties shall execute and deliver any and all other documents necessary to carry. out the intent of this Agreement and to comply with applicable law. 12. Time of Essence; Remedies. Time is of the essence in the performance of this Agreement. If any obligation hereunder is not performed or waived as herein provided, the parties shall have the following remedies: 1020334-4 A. If Buyer is in default: (i) Seller may elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall belong to Seller; or (ii) Seller may elect to treat this Agreement as being in full force and effect, in which case Seller shall have the right of specific performance or damages or both. B. If Seller is in default: (i) Buyer may elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be immediately returned to Buyer; or (ii) Buyer may elect to treat this Agreement as being in full force and effect, in which case Buyer shall have the right of specific performance or damages or both. 13. Survival. All promises, covenants, representations and warranties contained in this Agreement shall survive closing. 14. No Brokerage. Each of Seller and Buyer represent and warrant that said party has dealt with no brokers or salespersons in connection with this transaction, and each party agrees that, in the event of any claim by any broker or salesperson who may have rendered services in connection with this transaction at the request of a party or with the knowledge or consent of a party, then such party shall defend, hold harmless and indemnify the other party against such claims and all costs and expenses (including reasonable attorney fees and costs), liabilities and judgments resulting therefrom. 15. Complete Agreement. This Agreement embodies the entire and complete agreement of the parties on the subject matter herein. All prior and contemporaneous negotiations and understandings of the parties are fully integrated and merged into this Agreement. 16. Modification. This Agreement shall not be modified or amended except by subsequent written agreement signed by the parties. 17. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns. 18. No Third Party Beneficiaries. Neither this Agreement. nor any of the terms, conditions or provisions hereof shall inure to the benefit of any persons or entities that are not a named party or a successor or assign of a party as provided herein. 19. Invalid Provision. If any term, condition, or provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, then such term, condition, or provision shall be severed or modified to the extent necessary to make it enforceable, and the resulting Agreement shall remain in full force and effect. 20. Governing Law. This Agreement shall be governed under, and construed pursuant to, the laws of the State of Colorado. Should either party institute legal suit or action 1020334-4 4 for enforcement of any term, condition or obligation contained herein, it is agreed that the venue of such suit or action shall be in Pitkin County, Colorado. 21. Attorney Fees. Should this Agreement become the subject,of legal action to enforce or construe a term, condition or obligation of the Agreement, the prevailing party to such legal action shall be entitled to reimbursement of its attorney fees and costs, expenses, and court costs in such action. 22. Construction. The terms of this Agreement and all parts thereof shall be construed as a whole according to their plain meaning and not strictly for or against any party. Section or paragraph headings contained within this Agreement are inserted for convenience only and shall not be construed to vary or add to the meaning of the Agreement or of any paragraph. 23. Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed given upon personal delivery, three days after the deposit thereof in the United States mail, postage prepaid, or one day after deposit with a recognized overnight express mail service (i.e., FedEx, USPS, UPS), addressed to the appropriate party at the addresses set forth below. Any party may change its address for notices by giving notice to the other party in accordance with this paragraph. Notice to Seller: Board of County Commissioners of Pitkin County Attn: John Ely, Esq. Pitkin County Attorney 530 E. Main Street, Suite I Aspen, CO 81611-2939 With copy to: Timothy J. Beaton, Esq. Moses, Wittemyer, Harrison & Woodruff, P.C. P.O. Box 1440 Boulder, CO 80301 Notice to Buyer: Maroon Creek Limited Liability Company Attn: Andrew Hecht c/o Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, CO 81611 With -copy to: Nicole Garrimone-Campagna, Esq. Garfield & Hecht, P.C. 420 Seventh Street, Suite 100 Glenwood Springs, CO 81601 24. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. 1020334-4 25. Authorization. By executing this Agreement, the parties acknowledge and represent to one another that all procedures necessary to contract and execute this Agreement have been performed and that the person signing for each party has been duly authorized to do so and to bind said party to the terms and conditions hereof. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date set forth above. STATE OF COLORADO ) ss. COUNTY OF PITKIN ) BOARD OF COUNTY COMMISSIONERS OF�PITKIN COUNTY The foregoing Agreerpent for the Purchase and Sale of Water Rights was subscribed and swomo before me this J bt' day of A (,)o -e. , 2014, by Robert A. Ittner, Jr. as Chair and Q��(- 0 Das Secretary of the Board of County Commissioners of Pitkin County. WITNESS my hand and official seal. 7-/'?— My commission expires: / Np'TARY -e-6-4- pUB C 1020334-4 MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited liability company Andrew V. Hecht, Manager STATE OF COLORADO ) ) ss COUNTY OF PITKIN ) The foregoing Ae ent for the Purchase and Sale of Water Rights was subscribed and sworn to before me this day of�1u(�, 2014, by Andrew V. Hecht as Manager of Maroon Creek Limited Liability Company, a Colorado limited liability company. WITNESS my hand and official seal. My commission expires: +Ilcz�/-w 11, .KASHA=PUBLIC E NOTSTATENOTARY20.ttit n,nmiesi.2016 10203344 Notary— Public RECEPTION#: 612101, 07/24/2014 at 03:12:00 PM, 1 OF 7, R $0.00 Doc Code AGREEMENT Janice K. Vos Caudill, Pitkin County, CO AGREEMENT FOR THE PURCHASE AND SALE OF WATER RIGHTS This Agreement for thg Purchase a Sale of Water Rights ("Agreement") is made and entered into effective the It day of /1,t , 2014 by and between the Board of County Commissioners of Pitkin County ("Seller") and the Maroon Creek Limited Liability Company, a Colorado limited liability company ("Buyer"). RECITALS' WHEREAS, Seller owns an interest in the Stapleton Brothers' Ditch water right, originally decreed on October 16, 1933 in Civil Action No. 3000, Pitkin County District Court, State of Colorado, in the amount of 8.0 c.f.s. absolute, with an appropriation date of June 30, 1904 ("SBD Water Right"); WHEREAS, by decree entered in Case No. 99CW306, District Court, Water Division No. 5, Seller obtained approval of a change of the SBD Water Right, confirming, inter alia, 220 acre-feet per year of consumptive use credits associated with the SBD Water Right (the "SBD Credits"); WHEREAS, pursuant to the decree entered in Case No. 99CW306, of the 220 acre-feet per year of SBD Credits, 18 acre-feet per year was reserved for use by Seller to irrigate landscaped acreage on the Aspen -Pitkin County Airport property; WHEREAS, after entry of the decree in Case No. 99CW306 and prior to execution of this Agreement, Seller has sold or entrusted 190 acre-feet of the SBD Credits, or 6.9 c.f.s. of the SBD Water Right, to third parties; WHEREAS, Buyer owns water rights associated with and used for the benefit of the Maroon Creek Club golf course; and WHEREAS, Seller desires to sell and Buyer desires to purchase a portion of the SBD Credits and associated interest in the SBD Water Right, as set forth herein. NOW, THEREFORE, for and in consideration of the mutual promises and covenants set forth herein, the parties agree as follows: 1. Incorporation of Recitals. The foregoing Recitals are incorporated herein as if set forth in full. 2. Agreement to Sell and Buy Water Rights. Seller agrees to sell to Buyer and Buyer agrees to buy 12 acre-feet of annual SBD Credits and the associated pro rata interest (0.436 c.f.s.) in the SBD Water Right (the "Subject Water Rights"). The 12 acre-feet of annual SBD Credits shall be available to Buyer, pro -rata, based on physical and legal availability of the SBD Water Right as measured at the Stapleton Brothers' Ditch headgate. Any shortage will be 1020334-4 shared proportionally among the owners of the SBD Water Right based on each party's ownership interest. 3. Conveyance. At closing, Seller shall convey the Subject Water Rights to Buyer by special warranty deed, free and clear of any encumbrances. 4. Purchase Price. Buyer agrees to pay Seller One Hundred Twenty Thousand Dollars ($120,000.00) (equivalent to $10,000 per acre-foot of SBD Credit) for the Subject Water Rights. 5. Earnest Money Deposit. Upon execution of this Agreement, Buyer shall deposit Twelve Thousand Dollars ($12,000.00) into an account for the benefit of Seller ("Earnest Money Deposit"). In the event that Buyer terminates this Agreement pursuant to paragraph 6 below, Seller shall refund the Earnest Money Deposit, plus any accrued interest, to Buyer within ten (10) days of Buyer's written notice of termination. 6. Due Diligence Review; Right to Terminate. Buyer, through any employees, agents, or other designees of Buyer's choosing, has the right to review and inspect any information relating to the SBD Credits and the SBD Water Right, including any information Seller or its employees, agents, attorneys, or engineers has'pertaining to the SBD Credits and SBD Water Rights, which shall be made available to Buyer at its request. If Buyer determines, in its sole subjective discretion, that the Subject Water Rights are not satisfactory to Buyer due to: (i) Seller's title to or the status of Seller's interest in the Subject Water Rights; (ii) the historical use of the Subject Water Rights; or (iii) Buyer's determination that the Subject Water Rights are not satisfactory for Buyer's intended uses, then Buyer may provide written notice of unsatisfactory condition (`Notice of Unsatisfactory Condition") to Seller within 60 days of the date of this Agreement. Seller and Buyer shall have 15 days from the date of Buyer's Notice of Unsatisfactory Condition to reach a resolution and, if no resolution is reached, Buyer may terminate the Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be returned to Buyer. 7. Seller's Warranties. Seller hereby makes the following representations and warranties to Buyer, which representations and warranties shall be applicable and effective as of the date of this Agreement and as of the date of closing: A. Seller owns good and marketable title to the Subject Water Rights, free and clear of any and all liens, encumbrances, and adverse claims to the use and enjoyment thereof. B. There is or has been no intent to abandon or other action taken to abandon, in whole or in part, the Subject Water Rights. C. The SBD Credits have been quantified by the water court in the manner required by law. Since the quantification of the SBD Credits in Case No. 99CW306, Seller has not undertaken any other action, change, or requantification affecting the Subject 1020334-4 2 Water Rights and has complied with all of the terns and conditions of the decree in that case. D. Seller has taken all actions and received all authorizations necessary to enter into this Agreement and make it a valid and binding obligation of Seller. 8. Dry -Up Covenant. Along with Seller's deed for the Subject Water Rights, and as a result of the sale to Buyer, Seller agrees to execute and deliver to Buyer a dry -up covenant for the land irrigated by the Subject Water Rights. 9. Intended Use. The parties understand and agree that Buyer intends to use the Subject Water Rights for augmentation purposes associated with the Maroon Creek Club golf course. If Buyer ever uses the Subject Water Rights for purposes other than augmentation as provided herein, Seller may, at its option, reacquire the Subject Water Rights from Buyer at a price not to exceed one-half of the purchase price hereunder. 10. Water Court Approval. The parties understand and agree that it will be necessary for Buyer to obtain water court approval for Buyer's use of the Subject Water Rights for augmentation purposes. Seller provides no assurances or guarantees as to whether the 12 acre- feet of SBD Credits will be subject to requantification in the water court approval process. Seller shall not file a statement of opposition or otherwise oppose Buyer's water court application involving the Subject Water Rights, and Seller agrees to cooperate with and assist Buyer as needed by providing information necessary or helpful for Buyer to obtain a decree in such action. The parties shall be responsible for their own costs and attorney fees associated with such action or assistance. 11. Closing. The date of closing shall be 90 days following the effective date of this Agreement. At closing, the following shall occur: A. Buyer shall remit payment to Seller in the amount of $108,000.00 (the amount of the purchase price minus the Earnest Money Deposit ($120,000 - $12,000 $108,000)); B. Seller shall deliver to Buyer a duly executed and acknowledged special warranty deed conveying the Subject Water Rights to Buyer free and clear of any encumbrances; C. Seller shall deliver the dry -up covenant described in paragraph 8 above to Buyer; and D. The parties shall execute and deliver any and all other documents necessary to carry out the intent of this Agreement and to comply with applicable law. 12. Time of Essence; Remedies. Time is of the essence in the performance of this Agreement. If any obligation hereunder is not performed or waived as herein provided, the parties shall have the following remedies: 1020334-4 J' A. If Buyer is in default: (i) Seller may elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall belong to Seller; or (ii) Seller may elect to treat this Agreement as being in full force and effect, in which case Seller shall have the right of specific performance or damages or both. B. if Seller is in default: (i) Buyer may elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be immediately returned to Buyer; or (ii) Buyer may elect to treat this Agreement as being in full force and effect, in which case Buyer shall have the right of specific performance or damages or both. 13. Survival. All promises, covenants, representations and warranties contained in this Agreement shall survive closing. 14. No Brokerage. Each of Seller and Buyer represent and warrant that said party has dealt with no brokers or salespersons in connection with this transaction, and each party agrees that, in the event of any claim by any broker or salesperson who may have rendered services in connection with this transaction at the request of a party or with the knowledge or consent of a party, then such party shall defend, hold harmless and indemnify the other party against such claims and all costs and expenses (including reasonable attorney fees and costs), liabilities and judgments resulting therefrom. 15. Complete Agreement. This Agreement embodies the entire and complete agreement of the parties on the subject matter herein. All prior and contemporaneous negotiations and understandings of the parties are fully integrated and merged into this Agreement. 16. Modification. This Agreement shall not be modified or amended except by subsequent written agreement signed by the parties. 17. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns. 18. No Third Party Beneficiaries. Neither this Agreement, nor any of the terms, conditions or provisions hereof shall inure to the benefit of any persons or entities that are not a named party or a successor or assign of a party as provided herein. 19. Invalid Provision. if any term, condition, or provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, then such term, condition, or provision shall be severed or modified to the extent necessary to make it enforceable, and the resulting Agreement shall remain in full force and effect. 20. Governing Law. This Agreement shall be governed under, and construed pursuant to, the laws of the State of Colorado. Should either party institute legal suit or action 1020334-4 4 for enforcement of any term, condition or obligation contained herein, it is agreed that the venue of such suit or action shall be in Pitkin County, Colorado. 21. Attorney Fees. Should this Agreement become the subject of legal action to enforce or construe a term, condition or obligation of the Agreement, the prevailing party to such legal action shall be entitled to reimbursement of its attorney fees and costs, expenses, and court costs in such action. 22. Construction. The terms of this Agreement and all parts thereof shall be construed as a whole according to their plain meaning and not strictly for or against any party. Section or paragraph headings contained within this Agreement are inserted for convenience only and shall not be construed to vary or add to the meaning of the Agreement or of any paragraph. 23. Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed given upon personal delivery, three days after the deposit thereof in the United States mail, postage prepaid, or one day after deposit with a recognized overnight express mail service (i.e., FedEx, USPS, UPS), addressed to the appropriate party at the addresses set f6rth below. Any party may change its address for notices by giving notice to the other party in accordance with this paragraph. Notice to Seller: Board of County Commissioners of Pitkin County Attn: John Ely, Esq. Pitkin County Attorney 530 E. Main Street, Suite I Aspen, CO 81611-2939 With copy to: Timothy J. Beaton, Esq. Moses, Wittemyer, Harrison & Woodruff, P.C. P.O. Box 1440 Boulder, CO 80301 Notice to Buyer: Maroon Creek Limited Liability Company Attn: Andrew Hecht c/o Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, CO 81611 With copy to: Nicole Garrimone-Campagna, Esq. Garfield & Hecht, P.C. 420 Seventh Street, Suite 100 Glenwood Springs, CO 81601 24. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. 1020334-4 25. Authorization. By executing this Agreement, the parties acknowledge and represent to one another that all procedures necessary to contract and execute this Agreement have been performed and that the person signing for each party has been duly authorized to do so and to bind said party to the terms and conditions hereof. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date set forth above. on STATE OF COLORADO ) ss. COUNTY OF PITKIN ) BOARD OF COUNTY COMMISSIONERS OF�KIPITKIN COUNTY S jGNv�'7 The foregoing Agree ent for the Purchase and Sale of Water Rights was subscribed and sworn (o before me this day of U kj -e-- , 2014, by Robert A. Ittner, Jr. as Chair andy, 1 h EJ, .,t Xr�t eS as Secretary of the Board of County Commissioners of Pitkin County. WITNESS my hand and official seal. r/ /t7 /LI My commission c 1020334-4 MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited liability company By. Andrew V. Hecht, Manager STATE OF COLORADO ) ss. COUNTY OF PITKIN The foregoing Agreqment for the Purchase and Sale of Water Rights was subscribed and sworn to before me this JU2day of�—, 2014, by Andrew V. Hecht as Manager of Maroon Creek Limited Liability Company, a Colorado limited liability company. WITNESS my hand and official seal. My commission expires: SASHA LYN SEMPLE NOTARY PUBLIC STATE AF COLORADO NOTARY ID #19964011120 .%i, .-: nmitsion Expires July 10. 2D116 1020334-4 � flrould h y 6,P,btuNPL' k I /M_�W'y DRY -UP COVENANT RECEPTION#: 614937,10/28/2014 at 03:48:52 PM, 1 OF 6, R $0.00 Doc Code COVENANTS Janice K. Vos Caudill, Pitkin County, CO This Dry -Up Covenant is made and entered into effective the 28th day of October, 2014 by and between the Board of County Commissioners of Pitkin County, Colorado ("Grantor") and the Maroon Creek Limited Liability Company, a Colorado limited liability company ("Grantee"). RECITALS: WHEREAS, as part of its airport project, Grantor acquired certain real property located in Pitkin County, including 136 acres of land historically irrigated by the Stapleton Brothers' Ditch (the "Airport Property"). The Stapleton Brothers' Ditch was originally decreed on October 16, 1933 in Civil Action No. 3000, Pitkin County District Court, State of Colorado, for 8.0 c.f.s., absolute, with an appropriation date of June 30, 1904 (the "Stapleton Brothers' Ditch"); WHEREAS, by decree entered in Case No. 99CW306, District Court, Water Division No. 5, Grantor obtained approval of a change of the Stapleton Brothers' Ditch water right, making available 220 acre-feet per year of consumptive use credits associated with the dry -up of 136 acres of historically irrigated land located on the Airport Property (the "SBD Credits"); and WHEREAS, Grantee purchased from Grantor 12 acre-feet of annual SBD Credits and the associated pro rata interest (0.436 c.f.s.) in the Stapleton Brothers' Ditch water right for augmentation use. NOW, THEREFORE, for and in consideration of ten dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties covenant and agree as follows: The foregoing Recitals are incorporated herein as if set forth in full. 2. Grantor covenants and agrees to dry -up for the benefit of Grantee 7.42 acres of land historically irrigated by the Stapleton Brothers' Ditch water right, which historically irrigated and dried-up acreage is identified on Exhibit A, attached hereto and incorporated herein by reference. 3. Grantor covenants and agrees that Grantee may claim all consumptive use credits associated with the dry -up of the 7.42 acres of historically irrigated land identified on Exhibit A, and no other person or entity is entitled to claim consumptive use credits associated therewith. 4. Grantor covenants and agrees to comply with all of the terms and conditions of the decree in Case No. 99CW306, District Court, Water Division No. 5. Grantor further covenants and agrees to comply with the terms and conditions of any water court decree obtained by Grantee for use of Grantee's interest in the Stapleton Brothers' Ditch. S. This Dry -Up Covenant shall run with and inure to the benefit of Grantee's water rights in the Stapleton Brothers' Ditch and shall bind' and be a burden on the Airport Property. This Dry -Up Covenant shall be recorded in the real property records for Pitkin County. 6. Should this Dry -Up Covenant become the subject of legal action to enforce or construe a term, condition or obligation of the Dry -Up Covenant, the prevailing party to such legal action shall be entitled to reimbursement of its attorney fees and costs, expenses, and court costs in such action. IN WITNESS WHEREOF, the parties have executed this Dry -Up Covenant effective as of the date set forth above. STATE OF COLORADO ss. COUNTY OF PITKIN BOARD OF COUNTY COMMISSIONERS KIN COUNTY, COLORADO The foregoing Dry -Up Covenant was subscribed and sworn to before me this �0� day of October, 2014, by Robert A. Ittner, Jr., as Chair and ke_�tAkt 1OAe.s as SeefetaffC(eclt of the Board of County Commissioners of Pitkin County. WITNESS my hand and official seal. Vly Commission Expires My commission expires: August 4 2046 ` %J1A11111//" `p ane .... O. - t�TARc o�JsLl. oS�ao``oe �"if 611II o" Vry Public MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited liability company By: Andrew T�echt, Manager STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing Dry -Up Covenant was subscribed and sworn to before me this 27"'day of October, 2014, by Andrew V. Hecht, as Manager, on behalf of Maroon Creek Limited Liability Company, a Colorado limited liability company. WITNESS my hand and official seal. My commission expires: STACY STANEK NOTARY PUBLIC STATE OF COLORADO NOTARY ID #20024032730 [-My COMrrj"iOn Expires October 7, 2018 Dry -Up Areal Legal Description Dry -Up Area 1*, a tract of land being part of Lots 12, 19, and 25, Section 27, T9S, R85W, 6th P.M., Pitkin County, Colorado, comprising approximately 3.49 acres described as follows: Beginning at a point being N 760 28' 14" E 1,641.171 ft. from the SW corner of Sec. 27, T9S, R85W, 6th P. M., thence N 41° 28' 25" W 320.6 ft., thence N 50° 27' 15" W 818.623 ft., thence N 27° 56'46" W 653.031 ft., thence N 160 15' 35" E 10.740 ft., thence S 35° 50' 12" E 418.541 ft., thence S 390 39' 10" E 250.296 ft., thence S 530 4' 59" E 485.81 ft., thence S 270 8' 59" E 38.521 ft., thence S V 58'30" W 82.275 ft., thence S 37° 7' 0" E 131.564 ft., thence N 45° 0' 2" E 32.079 ft., thence N 3° 58' 21" W 104.091 ft., thence S 40° 43' 29" E 485.455 ft., thence S 53° 7'48" W 74.994 ft., thence S 37° 11' 6" W 21.347 ft. to the point of beginning. Situate in the County of Pitkin and State of Colorado and containing 3.49 acres more or less. Dry -Up Area 2 Legal Description Dry -Up Area 2*, a tract of land being part of Lot 19, Section 27, and Lot 2, Section 34, T9S, R85W, 6th P.M., Pitkin County, Colorado, comprising approximately 2.74 acres described as follows: Beginning at a point being S 710 29' 29" E 2,293.251 ft. from the SW corner of Sec. 27, T9S, R85W, 6th P. M., thence N 26° 48'32" W 1,082.515 ft., thence N 12° 31' 28" E 6.998 ft., thence N 10° 18' 18" E 31.701 ft., thence N 0° 0'0" W 65.214 ft., thence N 120 5' 40" E 40.597 ft., thence N 440 59' 51" E 1.688 ft., thence S 34° 10' 54" E 150.447 ft., thence S 28° 13'44" E 920.86 ft., thence S 5° 26'32" W 55.203 ft., thence S 220 6' 34" W 97.934 ft., thence S 12° 59'40" W 29.56 ft. to the point of beginning. Situate'in the County of Pitkin and State of Colorado and containing 2.74 acres more or less. *Dry -Up Areas are derived from aerial photography produced by the U.S. Geological Survey for the National Agricultural Imagery Program (NAIP), flown September 25, 2013. The map projection used to digitize and describe legal descriptions forthese areas: North American Datum 1983, State Plane Coordinates, Central Zone, Feet. Dry -Up Area 3 Legal Description Dry -Up Area 3*, a tract of land being part of Lots 2, 13, 15, Section 34, T95, R85W, 6th P.M., Pitkin County, Colorado, comprising approximately 0.85 acre described as follows: Beginning at a point being S 59° 1' 37" E 3,132.675 ft. from the NW corner of Sec. 34, T9S, R85W, 6th P. M., thence N 530 58'24" W 77.132 ft., thence N 40° 54'51" W 56.281 ft., thence N 75° 4'7" W 35.207 ft., thence N 25° 53' 10" W 308.241 ft., thence S 550 29' 46" E 5.021 ft., thence S 43° 1' 30" E 58.177 ft., thence S 73° 36' 37" E 50.244 ft., thence S 56° 18' 36" E 61.339 ft., thence S 74° 28' 33" E 52.97 ft., thence S 41° 59' 11" E 12.636 ft., thence S 26° 30' 49" E 110.816 ft., thence S 18° 26' 7" E 23.058 ft., thence S 14° 37' 15" E 67.397 ft., thence S 90 27' 45" E 51.742 ft., thence S 40° 36' 7" W 26.141 ft. to the point of beginning. Situate in the County of Pitkin and State of Colorado and containing 0.85 acre more or less. Dry -Up Area 4 Legal Description Dry -U p Area 4*, a tract of land being part of Lots 2, 13, 15, Section 34, T9S, R85W, 6th P.M., Pitkin County, Colorado, comprising approximately 0.34 acre described as follows: Beginning at a point being S 53° 32' 48" E 3,425.398 ft. from the NW corner of Sec. 34, T9S, R85W, 6th P. M., thence N 200 0' 5" W 448.793 ft., thence S 540 28' 7" E 2.55 ft., thence S 460 19' 56" E 86.236 ft., thence S 35*54' 35" E 101.522 ft., thence S 80 58' 21" E 54.54 ft., thence S 00 0' 0" E 62.379 ft., thence S 80 44' 46" W 37.294 ft., thence S 120 0' 41" E 128.166 ft. to the point of beginning. Situate in the County of Pitkin and State of Colorado and containing 0.34 acre more or less. *Dry -Up Areas are derived from aerial photography produced by the U.S. Geological Survey for the National Agricultural Imagery Program (NAIP), flown September 25, 2013. The map projection used to digitize and describe legal descriptions for these areas: North American Datum 1983, State Plane Coordinates, Central Zone, feet. RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: Garfield & Hecht, P.C. 601 East Hyman Avenue Aspen, CO 81611 RECEPTION#: 614936,10128/2014 at 03:48:51 PM, 1 OF 24, R $0.00 DF $0.00 Doc Code SPEC WD Janice K. Vos Caudill, Pitkin County, CO SPECIAL WARRANTY DEED The Board of County Commissioners of Pitkin County, Colorado ("Grantor"), for and in consideration of the sum of ten dollars ($10.00) and other good and valuable consideration, in hand paid, hereby sells and conveys to Maroon Creek Limited Liability Company, a Colorado limited liability company whose address is 10 Club Circle, Aspen, Colorado 81611 ("Grantee"), the following described water rights located in the County of Pitkin, State of Colorado, to wit: 12 acre-feet per year of fully consumable consumptive use water credits in the Stapleton Brothers' Ditch, quantified and decreed in Case No. 99CW306, District Court, Water Division No. 5, entered on January 31, 2005; together with a 0.436 c.fs. pro rata interest in the Stapleton Brothers' Ditch, decreed on October 16, 1933 in Civil Action No. 3000, Pitkin County District Court, with an appropriation date of June 30, 1904, as changed by decree in Case No. 99CW306 TOGETHER WITH all associated structures for the diversion, conveyance, measurement, storage, or use of said water and water rights; and together with all easements, rights-of-way; licenses, permits, contract rights, and governmental approvals therefor or pertaining thereto.. Grantor shall and will WARRANT AND FOREVER DEFEND the above -bargained premises in the quiet and peaceable possession of the Grantee and its successors and assigns against all and every person claiming under Grantor. Signed the 28th day of October, 2014. STATE OF COLORADO COUNTY OF PITKIN Grantor BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO n r...,<. T;" rwa:.l,.4 ss. The foregoing Special Warranty Deed was subscribed and sworn to before me this( day of October, 2014 by Robert A. Itmer, Jr., as Chair and Jeanette Jones as Seeretay of the - Board of County Commissioners of Pitkin County, Colorado. • C= �Ck�mesa my hand and official seal. �. ae h s My Commission Expires Sa; 7 f c mission expires: August 4 9015 __ S�TA2p Uu.C' Cf • �ilC�l��c Rel O Z N Public ' AGREEMENT FOR THE PURCHASE AND SALE OF WATER RIGHTS This Agreement forthe Purchase Sale of Water Rights ("Agreement") is made and entered into effective the day of f 2014 by and between the Board of County Commissioners of Pitkin County ("Seller'.D and the Maroon Creek Limited Liability Company, a Colorado limited liability company ("Buyer"). RECrrAM: WHEREAS, Seller owns an interest in the Stapleton Brothers' Ditch water right, originally decreed on October 16, 1933 in Civil Action No. 3000, Pitkin County District Court, State of Colorado, in the amount of 8.0 c.fs. absolute, with an appropriation date of June 30, 1904 ("SBD Water Right D; WHEREAS, by decree entered in Case No. 99CW306, District Court, Water Division No. 5, Seller obtained approval of a change of the SBD Water Right, confirming, inter alfa, 220 acre-feet per year of consumptive use credits associated with the SBD Water Right (the "SBD Credits'); WHEREAS, pursuant to the decree entered in Case No. 99CW306, of the 220 acre-feet per year of SBD Credits, 18, acre-feet per year was reserved for use by Seller to irrigate landscaped acreage on the Aspen -Pitkin County Airport property; WHEREAS, after entry of the decree in Case No. 99CW306 and prior to execution of this Agreement, Seller has sold or entrusted 190 acre-feet of the SBD Credits, or 6.9 c.£s. of the SBD Water Right, to third parties; WHEREAS, Buyer owns waterrights associated with and used for the benefit of the Maroon Creek Club golf course; and WHEREAS, Seller desires to sell and Buyer desires to purchase a portion of the SBD Credits and associated interest in the SBD Water Right, as set forth herein. NOW, THEREFORE, for and in consideration of the mutual promises and covenants set forth herein, the parties agree as follows: 1. Incorporation of Recitals. The foregoing Recitals are incorporated herein as if set forth in full. 7 2.. Agreement to Sell and Buy Water Rights.. Seller agrees to sell to Buyer and Buyer agrees to buy 12 acre-feet of annual SBD Credits and the associated pro rata interest (0.436 c.fs.) in the SBD Water Right (the "Subject Water Rights"). The 12 acre-feet of annual SBD Credits shall be available to Buyer, pro -rata; based on physical and legal availability of the SBD Water Right as measured at the Stapleton Brothers' Ditch beadgate. Any shortage will be 1020334-4 shared proportionally among the owners of the SBD Water Right based on each party's ownership interest 3. Conveyance. At closing, Seller shall convey the Subject Water Rights to Buyer by special warranty deed, free and clear of any encumbrances. 4. Purchase Price. Buyer agrees to pay Seller One Hundred Twenty Thousand Dollars ($120,000.00) (equivalent to $10,000 per acre-foot of SBD Credit) for the Subject Water Rights. 5. Earnest Money Deposit. Upon execution of this Agreement, Buyer shall deposit Twelve Thousand Dollars ($12,000.00) into an account for the benefit of Seller ("Eamest Money Deposit"). fn the event that Buyer terminates this Agreement pursuant to paragraph 6 below, Seller shall refund the Earnest Money Deposit, plus any accrued interest, to Buyer within ten (10) days of Buyer's written notice of termination. . 6. Due Diligence Review: Right to Terminate. Buyer, through any employees, agents, or other designees of Buyer's choosing, has the right to review and inspect any information relating to the SBD Credits and the SBD Water Right, including any information Seller or its employees, agents, attorneys, or engineers has'pertaining to the SBD Credits and SBD Water Rights, which shall be made available to Buyer at its request. If Buyer determines, in its sole subjective discretion, that the Subject Water Rights are not satisfactory to Buyer due to: (i) Seller's title to or the status of Seller's interest -in the Subject Water Rights; (ii) the historical use of the Subject Water Rights; or (iii) Buyer's determination that the Subject Water Rights are not satisfactory for Buyer's intended uses, then Buyer may provide written notice of unsatisfactory condition C Notice of Unsatisfactory Condition's to Seller within 60 days of the date of this Agreement. Seller and Buyer shall have 15 days from the date of Buyer's Notice of Unsatisfactory Condition to reach a resolution and, if no resolution is reached, Buyer may terminate the Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be returned to Buyer. 7. Seller's Warranties. Seller hereby makes the following representations and warranties to Buyer, which representations and warranties shall. be applicable and effective as of the date of this Agreement and as of the date of closing: A. Seller owns good and marketable title to the Subject Water Rights, free and clear of any and all liens, encumbrances, and adverse claims to the use and enjoyment thereof. B. There is or has been no intent to abandon or other action taken to abandon, in whole or in part, the Subject Water Rights. C. The SBD Credits have been quantified by the water court in the manner required by law. Since the quantification of the SBD Credits in Case No. 99CW306, Seller has not undertaken any other action, change, or requantification affecting the Subject 1020334-4 2 Water_Rights and has complied with all of the terms and conditions of the decree in that case. - D. Seller has taken all actions and received all authorizations necessary to enter into this Agreement and make it a. valid and binding obligation of Seller. 8. Dry -Up Covenant Along with Seller's deed for the Subject Water Rights, and as a result of the sale to Buyer, Seller agrees to execute and deliver to Buyer a dry -up covenant for the land irrigated by the Subject Water Rights. .9. Intended Use. The parties understand and agree that Buyer intends to use the Subject Water Rights for augmentation purposes associated with the Maroon Creek Club golf course. If Buyer ever uses the Subject Water Rights for purposes other than augmentation as provided herein, Seller may, at its option, reacquire the Subject Water Rights from Buyer at a price not to exceed one-half of the purchase price hereunder. 10. Water Court Approval. The parties understand and agree that it will be necessary for Buyer to obtain water court approval for Buyer's. use of the Subject. Water_ Rights for augmentation purposes. Seller provides no assurances or guarantees as to whether the 12 acre- feet of SBD Credits will be subject to requantification in the water court approval process. Seller shall not file a statement of opposition or otherwise oppose Buyer's water court application involving, the Subject Water Rights, and Seller agrees to cooperate with and assist Buyer as needed by providing information necessary or helpful for Buyer to obtain a decree in such action. The parties shall be responsible for their own costs and attorney fees associated with such action or assistance. 11. Closine. The date of closing shall be 90 days following the effective date of this Agreement. At closing, the following shall occur: A. Buyer shall remit payment to Seller in the amount of $108,000.00 (the amount of the purchase price minus the Earnest Money Deposit ($120,000 - $12,000 = $108,000)); B. Seller shall deliver to Buyer a duly executed and acknowledged special warranty deed conveying the Subject Water Rights ,to Buyer free and clear of any encumbrances; C. Seller shall deliver the dry -up covenant described in paragraph 8 above to Buyer; and D. The parties shall execute and deliver any and all other documents necessary to carry, out the intent of this Agreement and to comply with applicable law. .12. Time of Essence: Remedies. Time is of the essence in the performance of this Agreement.. If any obligation hereunder is not performed or waived as herein provided, the parties shall have the following remedies: 1020334-4 A. If Buyer is in default: (i) Seller may elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall belong to Seller; or (ii) Seller may elect to treat this Agreement as being in full force and effect, in which case Seller shall have the right of specific perfortnance or damages or both. B. If Seller is in default: (i) Buyer may elect to terminate this Agreement, in which case the Eamest Money Deposit, plus any accrued interest, shall be immediately returned to Buyer; or (ii) Buyer may elect to treat this Agreement as being in full force and effect, in which case Buyer shall have the right of specific performance or damages or both. 13. Survival. All promises, covenants, representations and warranties contained in this Agreement shall survive closing. 14. No Brokerage. Each of Seller and Buyer represent and warrant that said party hag dealt with no brokers or salespersons in connection with this transaction, and each party agrees that, in the event of any claim by any broker or salesperson who may have rendered services in connection with this transaction at the request of a party or with the knowledge or consent of a party, then such party shall, defend, hold harmless and indemnify the other party against such claims and all costs and expenses (including reasonable attorney fees and costs), liabilities and judgments resulting therefrom. 15. Complete Agreement: This Agreement embodies the entire and complete agreement of the parties on the subject matter herein. All prior and contemporaneous negotiations and understandings of the parties are 'fully integrated and merged into' this Agreement. 16. Modification. . This Agreement shall not be modified or amended except by subsequent written agreement signed by the parties. 17. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns. 18. No Third Party Beneficiaries. Neither this Agreement. nor any of the terms, conditions or provisions hereof shall inure to the benefit of any persons or entities that are not a named party or a successor or assign of a party as provided herein. 19. ' Invalid Provision. If any term, condition, or provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, then such term, condition, or provision shall be severed or modified to the extent necessary to make it enforceable, and the resulting Agreement shall remain in flill force and effect. 20. Govemine Law. This Agreement shall be governed under, and construed pursuant to, the laws of the State of Colorado. Should either party institute legal suit or action 1020334-4 for enforcement of any term, condition or obligation contained herein, it is agreed that the venue of such suit or action shall be in Pitkin County, Colorado. 21. Attorney Fees. Should this.Agreement become the subject.of legal action to enforce or construe a tern, condition or obligation of the Agreement, the prevailing parry to such legal action shall be entitled to reimbursement of its attorney fees and costs, expenses, and court costs in such action. 22. Construction. The terms of this Agreement and all parts thereof shall be construed as a whole according to their plain meaning and not strictly for or against any party. Section or paragraph headings contained within this Agreement are inserted for convenience only and shall not be construed to vary or add to the meaning of the Agreement or of any paragraph. 23. Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed given upon personal delivery, three days after the deposit thereof in the United States mail, postage prepaid, or one day after deposit with a recognized overnight express mail service (i.e., FedEx, USPS, UPS), addressed to the appropriate party at the addresses set forth below. Any party may change its address for notices by giving notice to the other parry in accordance with this paragraph. Notice to Seller: Board of County Commissioners. ofPitkin County Attn: John Ely, Esq. Pitkin County Attorney 530 E. Main Street, Suite I Aspen, CO 81611-2939 With copy to: Timothy J. Beaton, Esq. Moses, Wittemyer, Harrison & Woodruff, P.C. P.O. Box 1440 Boulder, CO 80301 Noticeto Buyer: Maroon Creek Limited Liability Company Attn: Andrew Hecht c/o Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, CO 81611 With copy to:.. .. Nicole Garrimone-Campagna, Esq. _-.. Garfield & Hecht, P.C. 420 Seventh Street, Suite 100 Glenwood Springs, CO 81601 24. Counterparts. Thus Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. 1020334-4 25. Authorization. By executing this Agreement, the parties acknowlMge and represent to one another that all procedures necessary to contract and execute this Agreement have been performed and that the person signing for each party has been duly authorized to do so and to bind said parry to the terms and conditions hereof. IN WITNESS WHEREOF, the parties have executed this Agreement effective as. of the date set forth above. BOARD OF COUNTY COMMISSIONERS OFFPPITKIN COUNTY By: STATE OF COLORADO ) " ) ss. COUNTY OF PITKIN ) The foregoing Agreeipent for the Purchase and Sale of Water Rights was subscribed and sworn �o before me this /• I bL day of A u V1 -e. , 2014, by Robert A. Ittner, Jr. as Chair and 13 4 h eas Secretary of the Board of County Commissioners of Pitldn County. WITNESS my hand and official seat. � My commission expires: 7-8-6( t O'TARY ¢4.a - RIO 10203344 6 MAROON CRESR LIMITED LIABILITY COMPANY, a Colorado limited liability company Ey----"" Andrew V. Becht, Manager STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing Agreqment £or the Purchase and Sale of Water Rights was subscribed and sworn to before me this day of \(AIS 2014, by Andrew V. Hecht as Manager of Maroon Creek Limited'Liability Company, 9 Colorado limited liability company. WITNESS my hand and official seal My wmmission expires: + ,KASHA LYN SEMPLE NOTARY PUBLIC STATE.OF COLORADO NOTARY ID 111996401120 %it Expires Judy 14, 2016 10203344 7 NotaryPublic RECEPTION#: 612101, 07/24/2014 at 03:12:00 PM, 1 OF 7, R $0.00 Doc Code AGREEMENT Janice K. Vos Caudill, Pitkin County, CO AGREEMENT FOR THE PURCHASE AND SALE OF WATER RIGHTS This Agreement for the Purchase aro Sale of Water Rights ("Agreement") is made and entered into effective the. f ( tL day of & /1,( 2014 by and between the Board of County Commissioners of Pitkin County (`'Seller") and the Maroon Creek Limited Liability Company, a Colorado Limited liability company (`Buyer"). RECITALS' WHEREAS, Seller owns. an interest in. the Stapleton Brothers'- Ditch water right, originally decreed on October 16, 1933 in Civil Action No. 3000, Pitkin County District Court, State of Colorado, in the amount of 8.0 c.f.s. absolute, with an appropriation date of June 30, 1904 ("SBD Water Right"); WHEREAS, by decree entered in Case No. 99CW306, District Court, Water Division No. 5, Seller obtained approval of a change of the SBD Water Right, confirming, inter alfa, 220 acre-feet per year of consumptive use credits associated with the SBD Water Right (the "SBD Credits"); WHEREAS,. pursuant to the decree entered in Case No. 99CW306, of the 220 acre-feet per year of SBD Credits, 18 acre-feet per year was reserved for use by Seller to irrigate landscaped acreage on the Aspen -Pitkin County Airport property; WHEREAS, after entry of the decree in Case No. 99CW306 and prior to execution of. this Agreement, Seller has sold or entrusted 190 acre-feet of the SBD Credits, or 6.9 c.fs. of the SBD Water Right, to thud parties; WHEREAS, Buyer owns water rights associated with and used for the benefit of the Maroon Creek Club golf course; and WHEREAS, Seller desires to sell and Buyer desires to purchase a portion of the SBD Credits and associated interest in the SBD Water Right, as set forth herein. NOW, THEREFORE, for and in consideration of the mutual promises and covenants set forth herein, the parties agree as follows; 1. lncomoration of Recitals. The foregoing Recitals are incorporated herein as if set forth in full. 2. Agreement to Sell and Buy Water Rights. Seller agrees to sell to Buyer and Buyer agrees to buy 12 acre-feet of annual SBD Credits and the associated pro rata interest (0.436 c.f.s.) in the SBD Water Right (the "Subject Water Rights"). The 12 acre-feet of annual SBD Credits shall be available to Buyer, pro -rata, based on physical and legal availability of the SBD Water Right as measured at the Stapleton Brothers' Ditch headgate. Any shortage will be ]020334-4 shared proportionally among the owners of the SBD Water Right based on each parry's ownership interest. 3. Conveyance. At closing, Seller shall convey the Subject Water Rights to Buyer by special warranty deed, free and clear of any encumbrances. 4. Purchase Price. Buyer agrees to pay Seller One Hundred Twenty Thousand Dollars ($120,000.00) (equivalent to $10,000 per acre-foot of SBD Credit) for the Subject Water Rights. 5.. Earnest Money Deposit. Upon execution of this Agreement, Buyer_shall deposit Twelve Thousand Dollars ($12,000.00) into an account for the benefit of Seller ("Eamest Money Deposit"). In the event that Buyer terminates this Agreement pursuant to paragraph 6 below, Seller shall refund the Earnest Money Deposit, plus any accrued interest, to Buyer within ten (10) days of Buyer's written notice of termination. 6. Due Dilieence Review; Right to Terminate. Buyer, through any employees, agents, or other designees of Buyer's choosing, has the right to review and inspect any information relating to the SBD Credits and the SBD Water Right, including any information Seller or its employees, agents, attorneys, or engineers has pertaining to the SBD Credits and SBD Water Rights, which shall be made available to Buyer at its request. If Buyer determines, in its sole subjective discretion, that the Subject Water Rights are not satisfactory to Buyer due to: (i) Seller's title to or the status of Seller's interest in the Subject Water Rights; (ii) the historical use of the Subject Water Rights; or (iii) Buyer's determination that the Subject Water Rights are not satisfactory for Buyer's intended uses, then Buyer may provide written notice of unsatisfactory condition ("Notice of Unsatisfactory Condition") to Seller within 60 days of the date of this Agreement. Seller and Buyer shall have 15 days from the date of Buyer's Notice of Unsatisfactory Condition to reach a resolution and, if no resolution is reached,. Buyer may terminate the Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be returned to Buyer. 7. Seller's Warranties. Seller hereby makes the following representations and warranties to Buyer, which representations and warranties shall be applicable and effective as of the date of this Agreement and as of the date of closing: A. Seller owns good and marketable title to the Subject Water Rights, free and clear of any and all liens, encumbrances, and adverse claims to the use and enjoyment thereof. B. There is or has been no intent to abandon or other action taken to abandon, in whole or in part, the Subject Water Rights. C. The SBD Credits have been quantified by the water court in the manner required by law. Since the quantification of the SBD Credits in Case No. 99CW306, Seller has not undertaken any other action, change, or requantification affecting the Subject 1020334-4 Water, Rights and has complied with all of the terms and conditions of the decree in that case. D. Seller has taken all actions and received all authorizations necessary to enter into this Agreement and make it a. valid and binding obligation of Seller. 8. Dry -Un Covenant Along with Seller's deed for the Subject Water Rights, and as A result of the sale to Buyer, Seller agrees to execute and deliver to Buyer a dry -up covenant for the land irrigated by the Subject Water Rights. 9. Intended Use. The parties understand and agree that Buyer intends to use the Subject Water Rights for augmentation purposes associated with the Maroon Creek Club golf course. If Buyer ever uses the Subject Water Rights for purposes other than augmentation as provided herein, Seller may, at its option, reacquire the Subject Water Rights from Buyer at a price not to exceed one-half of the purchase price hereunder. 10. Water Court Annroval. The parties understand and agree that it will be necessary for Buyer to obtain water court approval for Buyer's use of the Subject Water Rights for augmentation purposes. Seller provides no assurances or guarantees as to whether the 12 acre- feet of SBD Credits will be subject to requantification in the water court approval process. Seller shall not file a statement of opposition or otherwise oppose Buyer's water court application involving the Subject Water Rights, and Seller agrees to cooperate with and assist Buyer as needed by providing information necessary or helpful for Buyer to obtain a decree in such action. The parties shall be responsible for their own costs and attorney fees associated with such action or assistance. 11. Closine. The date of closing shall be 90 days following the effective date of this Agreement. At closing, the following shall occur; A. Buyer shall remit payment to Seller in the amount of $108,000.00 (the amount of the purchase price minus the Earnest Money Deposit ($120,000 - $12,000 = $108,000)); B. Seller shall deliver to Buyer a duly executed and acknowledged special warranty deed conveying the Subject Water Rights to. Buyer free and clear of any encumbrances; C. Seller shall deliver the dry -up covenant described in paragraph 8 above to Buyer; and D. The parties shall execute and deliver any and all other documents necessary to carry. out the intent of this Agreement and to comply with applicable law. 12. Time of Essence: Remedies. Time is of the essence in the performance of this Agreement. If any obligation hereunder is not performed or waived as herein provided, the parties shall have the following remedies: 1020334-a A. If Buyer is in default: (i) Sellermay elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall belong to Seller; or (ii) Seller may elect to treat this Agreement as being in full force and effect, in which case Seller shall have the right of specific performance or damages or both. B. If Seller is in default: (i) Buyer may elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be immediately returned to Buyer; or (ii) Buyer may elect to treat this Agreement as being in full force and effect, in which case Buyer shall have the right of specific performance or damages or both. 13. Survival. All promises, covenants, representations and warranties contained in this Agreement shall survive closing. 14. No Brokerage. Each of Seller and Buyer represent and warrant that said party has dealt with no brokers or salespersons in connection with this transaction, and each party agrees that, in the event of any claim by any broker or salesperson who may have rendered services in connection with this transaction at the request of a party or with the knowledge or consent of a party, then. such party shall defend, hold harmless and indemnify the other parry against such claims and all costs and expenses (including reasonable attorney fees and costs), liabilities and judgments resulting therefrom. 15. Complete Agreement. This Agreement embodies the entire and complete agreement of the parties on the subject matter herein. All prior and contemporaneous negotiations and understandings of the parties are fully integrated and merged into this Agreement. 16. Modification. This Agreement shall not be modified or amended except by subsequent written agreement signed by the parties. 17.. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors 'or assigns. 18. No Third Party Beneficiaries. Neither this Agreement, nor any of the terms, th conditions or provisions hereof shall inure to e benefit of any persons or entities that are not a named party or a successor or assign of a parry as provided herein. 19. Invalid Provision. If any tern, condition, or provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, then such term, condition, or provision shall be severed or modified to the extent necessary to make it enforceable, and the resulting Agreement shall remain in full force and effect. 20. Governing Law. This Agreement shall be governed under, and construed pursuant to, the laws of the State of Colorado. Should either party institute legal suit or action 10203344 4 for enforcement of any term, condition or obligation contained herein, it is agreed that the venue of such suit or action shall be in Pitkin County, Colorado. 21. Attorney Fees. Should this Agreement become the subject of legal action to enforce or construe a term, condition or obligation of the Agreement, the prevailing party to such legal action shall be entitled to reimbursement of its attorney fees and costs, expenses, and court costs in such action. 22. Construction. The terms of this Agreement and all parts thereof shall be construed as a whole according to their plain meaning and not strictly for or against any party. Section or paragraph headings contained within this Agreement are inserted for convenience only and shall not be construed to vary or add to the meaning of the Agreement or of any paragraph. 23. Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed given upon personal delivery, three days after the deposit thereof in the United States mail, postage prepaid, or one day after deposit with a recognized overnight express mail service (i.e., FedEx, USPS, UPS), addressed to the appropriate party at the addresses set forth below. Any party may change its address for notices by giving notice to the other party in accordance with this paragraph. Notice to Seller: Board of County Commissioners of Pitkin County Attn: John Ely, Esq. Pitkin County Attorney 530 E. Main Street, Suite I Aspen, CO 81611-2939 With copy to: Timothy J. Beaton, Esq. Moses, Wittemyer, Harrison & Woodruff, P.C. P.O. Box 1440 Boulder, CO 80301 Notice to Buyer: Maroon Creek Limited Liability Company Attn: Andrew Hecht c/o Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, CO 81611 With copy to: Nicole Garrimone-Campagna, Esq. Garfield & Hecht, P.C. 420 Seventh Street, Suite 100 Glenwood Springs, CO 81601 24. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. 1020334-4 25. Authorization. By executing this Agreement, the parties acknowledge and represent to one another that all procedures necessary to contract and execute this Agreement have been performed and that the person signing for each party has been duly authorized to do so and to bind said party to the terms and conditions hereof. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date set forth above. BOARD OF COUNTY COMMISSIONERS OF�PITKIN COUNTY By: STATE OF COLORADO. . ) ss. COUNTY OF PITKIN ) The foregoing Agree. ent for the Purchase and Sale of Water Rights was subscribed and %I F sworn o before me this day of � ll 41 -Z. , 2014, by Robert A. Ittner, Jr. as Chair and 4 Ny J Ir. Yu—,Q,, as Secretary of the Board of County Commissioners of Pitkin County. WITNESS my hand and official sheat. My commission expires: NpTARY Ar - 1020334 -4 6 MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited fiabUitycompany Andrew V. Hecht, Manager STATE OF COLORADO COUNTY OF PITKIN ) The foregoing A ent for the Purchase and Sale of Water Rights was subscribed and sworn to before n this day of .iu(T 2014, by Andrew V. Hecht as Manager of Maroon Creek Limited Liability Company, a Colorado limited liability company. WITNESS my hand and official seal My commission expires; .KASHA LYN SEMPLE NOTARY PusuQ 5TATEjOF COLORADO Notsry Public NOTARY ID 019964011120 .%it ' "n*10M Expires MY 14.2016 _ . 10203344 7 AMENDMENT TO AGREEMENT FOR THE PURCHASE AND SALE OF WATER RIGHTS This Amendment to Agreement for the Purchase and Sale of Water Rights ("Amendment') is made and entered into effective the 8u' day of October, 2014 by and between the Board of County Commissioners of Pitkin County ("Seller") and the Maroon Creek Limited Liability Company, a Colorado limited liability company ("Buyer"). RECITALS: WHEREAS, Seller and Buyer entered into that certain Agreement for the Purchase and Sale of Water Rights dated July 10, 2014 (the "Agreement'); WHEREAS, under the Agreement, the date of closing is 90 days following the effective date of the Agreement, or October 8, 2014; and WHEREAS, the parties desire to extend the date of closing as set forth herein. NOW, THEREFORE, for and in consideration of ten dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Incorporation of Recitals. The foregoing Recitals are incorporated herein as if set forth in full. 2. Amendment to Date of Closine. The date of closing under the Agreement shall be extended to October 14, 2014. 3. Effect. Except as expressly modified hereby, all of the terms, conditions, and provisions of the Agreement remain in full force and effect. 4. Counterparts. This Amendment may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the date set forth above. BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY By: rt 771 Fo z Robert tmer Jr -Chair STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing Amendment to Agreement for the Purchase and Sale of.Water Rights was subscribed and sworn to before me this R*1 day of October 2014, by John M. Ely as attorney to the Board of County Commissioners of Pitkin County. WITNESS my hand and official seal. My commission expires: My Commission Expires STATE OF COLORADO ) ss. COUNTY OF PITKIN ) N t y Public MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited liability company Andrew V. Hecht, Manager The foregoing Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this 8`h day of October, 2014, by Andrew V. Hecht as Manager of Maroon Creek Limited Liability Company, a Colorado limited liability company. WITNESS my hand and official seal. My commission expires: Notary Public ATTEST: Secretary STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this day of October, 2014, by Robert A. Ittner, Jr., as Chair and as Secretary of the Board of County Commissioners of Pitkin County. WITNESS my hand and official seal. My commission expires: Notary Public MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited liability company By: — Andrew V. Hecht, Manager STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this 8t' day of October, 2014, by Andrew V.. Hecht as Manager of Maroon Creek Limited Liability Company, a Colorado limited liability company. . WITNESS my hand and official seal. ►.1 SECOND AMENDMENT TO AGREEMENT . FOR THE PURCHASE AND SALE OF WATER RIGHTS This Second Amendment to Agreement for the Purchase and Sale of Water Rights ("Second Amendment") is made and entered into effective the 14th day of October, 2014 by and between the Board of County Commissioners of Pitkin County ("Seller") and the Maroon Creek Limited Liability Company, a Colorado limited liability company ("Buyer"). RECITALS: . WHEREAS, Seller and Buyer entered into that certain Agreement for the Purchase and Sale of Water Rights dated July 10, 2014 (the "Agreement') and Amendment to Agreement for the Purchase and Sale of Water Rights dated October 8, 2014 (the "Amendment'); WHEREAS, under the Agreement, the date of closing is 90 days following the effective date of the Agreement, or October 8, 2014. Under the Amendment, the date of closing was extended to October 14,2014; and WHEREAS, the parties desire to extend further the date of closing as set forth herein. NOW, THEREFORE, for and in consideration of ten dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: I . Incorporation of Recitals. The foregoing Recitals are incorporated herein as if set forth in full. 2. Amendment to Date of Closing. The date of closing under the Agreement is hereby extended to October 23, 2014. 3. Effect. Except as expressly modified hereby, all of the terms, conditions, and provisions of the Agreement remain in full force and effect. 4. Counterparts. This Second Amendment may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Second Amendment effective as of the date set forth above. I� BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY John M. Robert A. Ittner, Jr., Chair STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this _&L%L day of October, 2014, by John M. Ely, as attorney for the Board of County Commissioners of Pitkin County. WITNESS -my hand and official seal. My coWissic%yxpires: My Commission Expires As Ach °i°° aAugust 4,201-& vp ....• ey eI S •S�'IARL w I/� . Ivary Public f ca �• of 11llo" \,`` MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited liability company Andrew V. Hecht, Manager STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this 14a' day of October, 2014, by Andrew V. Hecht as Manager of Maroon Creek Limited Liability Company, a Colorado limited liability company. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF COLORADO . ) ss. COUNTY OF PITKIN ) The foregoing Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this day of October, 2014, by John M. Ely, as attorney for the Board of County Commissioners of Pitkin County. WITNESS my hand and official seal. My commission expires: Notary Public MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited liability company BY. Andrew V. Hecht, Manager STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this 14th day of October, 2014, by Andrew V. Hecht as Manager of Maroon Creek -Limited Liability Company, a Colorado limited liability company. WITNESS my hand and official seal. r�r//v�cP �it�a THIRD AMENDMENT TO AGREEMENT FOR THE PURCHASE AND SALE OF WATER RIGHTS This Third Amendment to Agreement for the Purchase and Sale of Water Rights ("Third Amendment') is made and entered into effective the 23`d day of October, 2014 by and between the Board of County Commissioners of Pitkin County ("Seller") and the Maroon Creek Limited Liability Company, a Colorado limited liability company ("Buyer"). RECITALS' WHEREAS, Seller and Buyer entered into that certain Agreement for the Purchase and Sale of Water Rights dated July 10, 2014 (the "Agreement"), Amendment to Agreement for the Purchase and Sale of Water Rights dated October 8, 2014 (the "Amendment'), and Second Amendment to Agreement for the Purchase and Sale of Water Rights dated October 14, 2014 (the "Second Amendment'); WHEREAS, under the Agreement, the date of closing is 90 days following the effective date of the Agreement, or October 8, 2014. Under the Amendment, the date of closing was extended to October 14, 2014, and under the Second Amendment the date of closing was extended to October 23, 2014; and WHEREAS, the parties desire to extend further the date of closing as set forth herein. NOW, THEREFORE, for and in consideration of ten dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Incorporation of Recitals. The foregoing Recitals are incorporated herein as if set forth in full. 2. Amendment to Date of Closine. The date of closing under the Agreement is hereby extended to October 28, 2014. 3. Effect. Except as expressly modified hereby, all of the terns, conditions, and provisions of the Agreement remain in full force and effect. 4. Counterparts. This Third Amendment may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Third Amendment effective as of the date set forth above. BOARD OF COUNTY COMMISSIONERS OF PITKIN COUN By: G._7 9777 1--o.2 Robert ne r., Chair STATE OF COLORADO ) �� ) ss. COUNTY OF PITKIN ) The foregoing Third Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this a5 - day of October, 2014, by John M. Ely, as attorney for the Board of County Commissioners of Pitkin County. Commission Expires W�Y�? ���ltM,J�and and official seal. My commission expires: My Awgust 4 201e Nc(ty Public e. .•.'", MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited liability company Andrew V. Hecht, Manager STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing Third Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this 23`d day of October, 2014, by Andrew V. Hecht as Manager of Maroon Creek Limited Liability Company, a Colorado limited liability company. WITNESS my hand and official seal. My commission expires: Notary Public 4 \� IN WITNESS WHEREOF, the parties have executed this Third Amendment effective as of the date set forth above. BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY M Robert A. Ittner, Jr., Chair STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing Third Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this day of October, 2014, by John M. Ely, as attorney for the Board of County Commissioners of Pitkin County. WITNESS my hand and official seal. My commission expires: Notary Public MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited liability company By: Andrew V. Hecht, Manager STATE OF COLORADO ) )ss' COUNTY OF PITKIN ) The foregoing Third Amendment to Agreement for the Purchase and Sale of Water Rights was subscribed and sworn to before me this 23`d day of October, 2014, by Andrew V. Hecht as Manager of Maroon Creek Limited Liability Company, a Colorado limited liability company. WITNESS my hand and official seal. My STACY STAN€K NOTARY PUBLIC STATE OF COLORADO NOTARY 113#20024032730 MyComtssbnEVIrnOctober7,gild �$ 2 expires: 6 7 shared proportionally among the owners of the SBD Water Right based on each party's ownership interest. 3. Conveyance. At closing, Seller shall convey the Subject Water Rights to Buyer by special warranty deed, free and clear of any encumbrances. 4. Purchase Price. Buyer agrees to pay Seller One Hundred Twenty Thousand Dollars ($120,000.00) (equivalent to $10,000 per acre-foot of SBD Credit) for the Subject Water Rights. 5. Earnest Money Deposit. Upon execution of this Agreement, Buyer shall deposit Twelve Thousand Dollars ($12,000.00) into an account for the benefit of Seller ("Eamest Money Deposit"). In the event that Buyer terminates this Agreement pursuant to paragraph 6 below, Seller shall refund the Earnest Money Deposit, plus any accrued interest, to Buyer within ten (10) days of Buyer's written notice of termination. 6. Due Diligence Review- Right to Terminate. Buyer, through any employees, agents, or other designees of Buyer's choosing, has the right to review and inspect any information relating to the SBD Credits and the SBD Water Right, including any information Seller or its employees, agents, allomeys, or engineers has pertaining to the SBD Credits and SBD Water Rights, which shall be made available to Buyer at its request. If Buyer determines, in its sole subjective. discretion, that the Subject Water Rights are not satisfactory to Buyer due to: (i) Seller's title to or the status of Seller's interest -in the Subject Water Rights; (ii) the historical use of the Subject Water Rights; or (iii) Buyer's determination that the Subject Water Rights are not satisfactory for Buyer's intended uses, then Buyer may provide written notice of unsatisfactory condition .0 Notice of Unsatisfactory Condition") to Seller within 60 days of the date of this Agreement. Seller and Buyer shall have IS days from the date of Buyer's Notice of Unsatisfactory Condition to reach a resolution and, if no resolution is reached, Buyer may terminate the Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be returned to Buyer. 7. Seller's Warranties. Seller hereby makes the following representations and warranties to Buyer, which representations and warranties shall.be applicable and effective as of the date of this Agreement and as of the date of closing: A. Seller owns good and marketable title to the Subject Water Rights, free and clear of any and all liens, encumbrances, and adverse claims to the use and enjoyment thereof. B. There is or has been no intent to abandon or other action taken to abandon, in whole or.in part, the Subject Water Rights. C. The SBD Credits have been quantified by the water court in the manner required by law. Since the quantification of the SBD Credits in Case No. 99CW306, Seller has not undertaken any other action, change, or requantification affecting the Subject 1020334-4 Water_Rights and has complied with all of the terms and conditions of the decree in that case. D. Seller has taken all actions and received all authorizations necessary to enter into this Agreement and make it a, valid and binding obligation of Seller. 8. Dry -Un Covenant. Along with Seller's deed for the Subject Water Rights, and as a result of the sale to Buyer, Seller agrees to execute and deliver to Buyer a dry -up covenant for the land irrigated by the Subject Water Rights. .9. Intended Use. The parties understand and agree that Buyer intends to use the Subject Water Rights for augmentation purposes associated with the Maroon Creek Club golf course. If Buyer ever uses the Subject Water Rights for purposes other than augmentation as provided herein, Seller may, at its option, reacquire the Subject Water Rights from Buyer at a price not to exceed one-half of the purchase price hereunder. 10. Water Court Approval. The parties understand and agree that it will be necessary for Buyer to obtain water court approval for Buyer's use of the Subject Water Rights for augmentation purposes. Seller provides no assurances or guarantees as to whether the 12 acre- feet of SBD Credits will be subject to requantification in the water court approval process. Seller shall not file a statement of opposition or otherwise oppose Buyer's water court application involving the Subject Water Rights, and Seller agrees to cooperate with and assist Buyer as needed by providing information necessary or helpful for Buyer to obtain a decree in such action. The parties shall be responsible for their own costs and attorney fees associated with such action or assistance. I I . Closine. The date of closing shall be 90 days following the effective date of this Agreement. At closing, the following shall occur: A. Buyer shall remit payment to Seller in the amount of $108,000.00 (the amount of the purchase price minus the Earnest Money Deposit ($120,000 - $12,000 = $108,000)); B. Seller shall deliver to Buyer a duly executed and acknowledged special warranty deed conveying the Subject Water Rights . to Buyer free and clear of any encumbrances; C. Seller shall deliver the dry -up covenant described in paragraph 8 above to Buyer; and ° D. The parties shall execute and deliver any and all other documents necessary to carry. out the intent of this Agreement and to comply with applicable law. 12. Time of Essence: Remedies. Time is of the essence in the performance of this Agreement. If any obligation hereunder is not performed or waived as herein provided, the parties shall have the following remedies: )020334.4 A. If Buyer is in default: (i) Seller may elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall belong to Seller; or (ii) Seller may elect to treat this Agreement as being in full force and effect, in which case Seller shall have the right of specific performance or damages or both. B. If Seller is in default: (i) Buyer may elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be immediately returned to Buyer; or (ii) Buyer may elect to treat this Agreement as being in full force and effect, in which case Buyer shall have the right of specific performance or damages or both. 13.• Survival. All promises, covenants, representations and warranties contained in this Agreement shall survive closing; 14. No Brokerage. Each of Seller and Buyer represent and warrant that said party has dealt with no brokers or salespersons in connection with this transaction, and each party agrees that, in the event of any claim by any broker or salesperson who may have rendered services in connection with this transaction at the request of a party or with the knowledge or consent of a party, then such party shall defend, hold harmless and indemnify the other party against such claims and all costs and expenses (including reasonable attorney fees and costs), liabilities and judgments resulting therefrom. 15. Complete Agreement: This Agreement embodies the entire and complete agreement of the parties on the subject matter herein. All prior and contemporaneous negotiations and understandings of the parties are fully integrated and merged into- this Agreement. 16. Modification. . This Agreement shall not be modified or amended except by subsequent written agreement signed by the parties. 17. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors 'or assigns. 18. No Third Party Beneficiaries. Neither this Agreement. nor any of the terms, conditions or provisions hereof shall inure to the benefit of any persons or entities that are not a named party or a successor or assign of a party as provided herein. 19. Invalid Provision. If any term, condition, or provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, then such term, condition, or provision shall be severed or modified to the extent necessary to make it enforceable, and the resulting Agreement shall remain in full force and effect. 20. Governing Law. This Agreement shall be governed under, and construed pursuant to, the laws of the State of Colorado. Should either party institute legal suit or action 10203344 4 for enforcement of any term, condition or obligation contained herein, it is agreed that the venue of such suit or action shall be in Pitkin County, Colorado. 21, Attorney Fees. Should this Agreement become the subject.of legal action to enforce or construe a term, condition or obligation of the Agreement, the prevailing party to such legal action shall be entitled to reimbursement of its attorney fees and costs, expenses, and court costs in such action. 22. Construction. The terms of this Agreement and all parts thereof shall be construed as a whole according to their plain meaning and not strictly for or against any party. Section or paragraph headings contained within this Agreement are inserted for convenience only and shall not be construed to vary or add to the meaning of the Agreement or of any paragraph. 23. Notices. Any notice required or permitted to be given under this Agreement must be. in writing and will be deemed given upon personal delivery, three days after the deposit thereof in the United States mail, postage prepaid, or one day after deposit with a recognized overnight express mail service (i.e., FedEx, USPS, UPS), addressed to the appropriate party at the addresses set forth below. Any party may change its address for notices by giving notice to the other party in accordance with this paragraph. Notice to Seller: Board of County Commissioners of Pitkin County Attn: John Ely, Esq. Pitkin County Attorney 530 E. Main Street, Suite I Aspen, CO 81611-2939 With copy to: Timothy J. Beaton, Esq. Moses, Wittemyer, Harrison & Woodruff, P.C. P.O. Box 1440 Boulder, CO 80301 Notice to Buyer: Maroon Creek Limited Liability Company Attn: Andrew Hecht c/o Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, CO 81611 With•copy to: Nicole Garrimone-Campagna, Esq. Garfield & Hecht, P.C. 420 Seventh Street, Suite 100 Glenwood Springs, CO 81601 24. Countemarts. This Agreement may be executed in counterparts, each of which shall be deemed an original,'and all of which, when taken together, shall be deemed one and the same instrument. 10203344 25. Authorization. By executing this Agreement, the parties acknowledge and represent to one another that all procedures necessary to contract and execute this Agreement have been performed and that the person signing for each party has been duly authorized to do so and to bind said party to the terms and conditions hereof. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date set forth above. LE STATE OF COLORADO ) ss. COUNTY OF P1TKIN ) BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY The foregoing Agreerpent for the Purchase and Sale of Water Rights was subscribed and swomko before me this 1QS Lbt- day of d J N -e, , 2014, by Robert A. Inner, Jr. as Chair and , 4 4,ol},t Nm -, v, Secretary of the Board of County Commissioners of Pitkin County. WITNESS my hand and official seal. n ii-, i/ / My commission e 1020334.4 MAROON CREEK LUMM LIABILITY COMPANY, a Colorado limited liability company 1„r By. - Andrew V. Hecht, Manager STATE.OF COLORADO ) ) ss. COUNTY OF PIT KUN ) The foregoing Ae ent for the Purchase and Sale of Water Rights was subscribed and sworn to before me this day of� 2014, by Andrew V. Hecht as Manager of Maroon Creek Limited Liability Company, a Colorado limited liability company. WITNESS my hand and official seal. My commission expires: i SASHA LYN SEMPLE NOTARY PUBLIQ STATE OF d0LORAD0 Notary Public NOTARY ID )319964071120 %iY_;r n�.�(•sion Expires July 10. 2016 10203344 7 RECEPTION#: 612101, 07/24/2014 at 03:12:00 PM, 1 OF 7. R $0.00 Doc Code AGREEMENT Janice K. Vos Caudill, Pitkin County, CO AGREEMENT FOR THE PURCHASE AND SALE OF WATER RIGHTS This Agreement for Purchase and Sale of Water Rights ("Agreement") is made and entered into effective the fit day of /11t , 2014 by and between the Board of County Commissioners of Pitkin County ("Seller") and the Maroon Creek Limited Liability Company, a Colorado limited liability company ("Buyer"). RECITALS' WHEREAS, Seller owns an interest in the Stapleton Brothers' Ditch water right, originally decreed on October 16, 1933 in Civil Action No. 3000, Pitkin County District Court, State of Colorado, in the amount of 8.0 c.f.s. absolute, with an appropriation date of June 30, 1904 C'SBD Water Right"); WHEREAS, by decree entered in Case No. 99CW306, District Court, Water Division No. 5, Seller obtained approval of a change of the SBD Water Right, confirming, inter alia, 220 acre-feet per year of consumptive use credits associated with the SBD Water Right (the "SBD Credits"); WHEREAS, pursuant to the decree entered in Case No. 99CW306, of the 220 acre-fcet per year of SBD Credits, 18 acre-feet per year was reserved for use by Seller to irrigate landscaped acreage on the Aspen -Pitkin County Airport property; WHEREAS, after entry of the decree in Case No. 99CW306 and prior to execution of this Agreement, Seller has sold or entrusted 190 acre-feet of the SBD Credits, or 6.9 c.fs. of the SBD Water Right, to third parties; WHEREAS, Buyer owns water rights associated with and used for the benefit of the Maroon Creek Club golf course; and WHEREAS, Seller desires to sell and Buyer desires to purchase a portion of the SBD Credits and associated interest in the SBD Water Right, as set forth herein. NOW, THEREFORE, for and in consideration of the mutual promises and covenants set forth herein, the parties agree as follows: 1. Incorporation of Recitals. The foregoing Recitals are incorporated herein as if set forth in full. 2. Agreement to Sell and Buy Water Rights. Seller agrees to sell to Buyer and Buyer agrees to buy 12 acre-feet of annual SBD Credits and the associated pro rata interest (0.436 c.f.s.) in the SBD Water Right (the "Subject Water Rights"). The 12 acre-feet of annual SBD Credits shall be available to Buyer, pro -rata, based on physical and legal availability of the SBD Water Right as measured at the Stapleton Brothers' Ditch headgate. Any shortage will be 10203344 1 shared proportionally among the owners of the SBD Water Right based on each party's ownership interest. 3. Conveyance. At closing, Seller shall convey the Subject Water Rights to Buyer by special warranty deed, free and clear of any encumbrances. 4. Purchase Price. Buyer agrees to pay Seller One Hundred Twenty Thousand Dollars ($120,000.00) (equivalent to $10,000 per acre-foot of SBD Credit) for the Subject Water Rights. 5. Earnest Money DeV9sit. Upon execution of this Agreement, Buyer shall deposit Twelve Thousand Dollars ($12,000.00) into an account for the benefit of Seller ("Earnest Money Deposit"). In the event that Buyer terminates this Agreement pursuant to paragraph 6 below, Seller shall refund the Earnest Money Deposit, plus any accrued interest, to Buyer within ten (10) days of Buyer's written notice of termination. 6. Due Diligence Review; Right to Terminate. Buyer, through any employees, agents, or other designees of Buyer's choosing, has the right to review and inspect any information relating to the SBD Credits and the SBD Water Right, including any information Seller or its employees, agents, attorneys, or engineers has'pertaining to the SBD Credits and SBD Water Rights, which shall be made available to Buyer at its request. If Buyer determines, in its sole subjective discretion, that the Subject Water Rights are not satisfactory to Buyer due to: (i) Seller's title to or the status of Seller's interest in the Subject Water Rights; (ii) the historical use of the Subject Water Rights; or (iii) Buyer's determination that the Subject Water Rights are not satisfactory for Buyer's intended uses, then Buyer may provide written notice of unsatisfactory condition ("Notice of Unsatisfactory Condition") to Seller within 60 days of the date of this Agreement. Seller and Buyer shall have 15 days from the date of Buyer's Notice of Unsatisfactory Condition to reach a resolution and, if no resolution is reached, Buyer may terminate the Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be returned to Buyer. 7. Seller's Warranties. Seller hereby makes the following representations and warranties to Buyer, which representations and warranties shall be applicable and effective as of the date of this Agreement and as of the date of closing; A. Seller owns good and marketable title to the Subject Water Rights, free and clear of any and all liens, encumbrances, and adverse claims to the use and enjoyment thereof. B. There is or has been no intent to abandon or other action taken to abandon, in whole or in part, the Subject Water Rights. C. The SBD Credits have been quantified by the water court in the manner required by law. Since the quantification of the SBD Credits in Case No. 99CW306, Seller has not undertaken any other action, change, or requantification affecting the Subject 1020334.4 Water Rights and has complied with all of the terms and conditions of the decree. in that case. D. Seller has taken all actions and received all authorizations necessary to enter into this Agreement and make it a valid and binding obligation of Seller. 8. Dry -Up Covenant. Along with Seller's deed for the Subject Water Rights, and as a result of the sale to Buyer, Seller agrees to execute and deliver to Buyer a dry -up covenant for the land irrigated by the Subject Water Rights. 9. Intended Use. The parties understand and agree that Buyer intends to use the Subject Water Rights for augmentation purposes associated with the Maroon Creek Club golf course. If Buyer ever uses the Subject Water Rights for purposes other than augmentation as provided herein, Seller may, at its option, reacquire the Subject Water Rights from Buyer at a price not to exceed one-half of the purchase price hereunder: 10. Water Court Approval. The parties understand and agree that it will be necessary for Buyer to obtain water court approval for Buyer's use of the Subject Water Rights for augmentation purposes. Seller provides no assurances or guarantees as to whether the 12 acre- feet of SBD Credits will be subject to requantification in the water court approval process. Seller shall not file a statement of opposition or otherwise oppose Buyer's water court application involving the Subject Water Rights, and Seller agrees to cooperate with and assist Buyer as needed by providing information necessary or helpful for Buyer to obtain a decree in such action. The parties shall be responsible for their own costs and attorney fees associated with such action or assistance. 11. Closing. The date of closing shall be 90 days following the effective date of this Agreement. At closing, the following shall occur: A. Buyer shall remit payment to Seller in the amount of $108,000.00 (the amount of the purchase price minus the Earnest Money Deposit ($120,000 - $12,000 = $108,000)); B. Seller shall deliver to Buyer a duly executed and acknowledged special warranty deed conveying the Subject Water Rights to Buyer free and clear of any encumbrances; C. Seller shall deliver the dry -up covenant described in paragraph 8 above to Buyer; and D. The parties shall execute and deliver any and all other documents necessary to carry. out the intent of this Agreement and to comply with applicable law. 12. Time of Essence: Remedies. Time is of the essence in the performance of this Agreement. If any obligation hereunder is not performed or waived as herein provided, the parties shall have the following remedies: 1020334-4 3 A. If Buyer is in default: (i) Seller may elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall belong to Seller; or (ii) Seller may elect to treat this Agreement as being in full force and effect, in which case Seller shall have the right of specific performance or damages or both. B_ If Seller is in default: (i) Buyer may elect to terminate this Agreement, in which case the Earnest Money Deposit, plus any accrued interest, shall be immediately returned to Buyer; or (ii) Buyer may elect to treat this Agreement as being in full force and effect, in which case Buyer shall have the right of specific performance or damages or both. 13. Survival. All promises, covenants, representations and warranties contained in this Agreement shall survive closing. 14. No Brokerage. Each of Seller and Buyer represent and warrant that said party has dealt with no brokers or salespersons in connection with this transaction, and each party agrees that, in the event of any claim by any broker or salesperson who may have rendered services in connection with this transaction at the request of a party or with the knowledge or consent of a party, then such party shall defend, hold harmless and indemnify the other party against such claims and all costs and expenses (including reasonable attorney fees and costs), liabilities and judgments resulting therefrom. 15. Complete Agreement. This Agreement embodies the entire and complete agreement of the parties on the subject matter herein. All prior and contemporaneous negotiations and understandings of the parties are fully integrated and merged into this Agreement. 16. Modification. This Agreement shall not be modified or amended except by subsequent written agreement signed by the parties. 17. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns. 18. No Third Party Beneficiaries. Neither this Agreement, nor any of the terms, conditions or provisions hereof shall inure to the benefit of any persons or entities that are not a named party or a successor or assign of a party as provided herein. 19. Invalid Provision. if any term, condition, or provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, then such term, condition, or provision shall be severed or modified to the extent necessary to make it enforceable, and the resulting Agreement shall remain in full force and effect. 20. Govemine Law. This Agreement shall be governed under, and construed pursuant to, the laws of the State of Colorado. Should either party institute legal suit or action 10203344 4 for enforcement of any term, condition or obligation contained herein, it is agreed that the venue of such suit or action shall be in Pitkin County, Colorado. 21. Attorney Fees. Should this Agreement become the subject of legal action to enforce or construe a term, condition or obligation of the Agreement, the prevailing party to such legal action shall be entitled to reimbursement of its attorney fees and costs, expenses, and court costs in such action. 22. Construction. The terms of this Agreement and all parts thereof shall be construed as a whole according to their plain meaning and not strictly for or against any party. Section or paragraph headings contained within this Agreement are inserted for convenience only and shall not be construed to vary or add to the meaning of the Agreement or of any paragraph. 23. Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed given upon personal delivery, three days after the deposit thereof in the United States mail, postage prepaid, or one day after deposit with a recognized overnight express mail service (i.e., FedEx, USPS, UPS), addressed to the appropriate party at the addresses set forth below. Any party may change its address for notices by giving notice to the other party in accordance with this paragraph. Notice to Seller: Board of County Commissioners of Pitkin County Attn: John Ely, Esq. Pitkin County Attorney 530 E. Main Street, Suite 1 Aspen, CO 81611-2939 With copy to: Timothy J. Beaton, Esq. Moses, Wittemyer, Hanson & Woodruff, P.C. P.O. Box 1440 Boulder, CO 80301 Notice to Buyer: Maroon Creek Limited Liability Company Attn: Andrew Hecht c/o Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, CO 81611 With copy to: Nicole Garrimone-Campagna, Esq. Garfield & Hecht, P.C. 420 Seventh Street, Suite 100 Glenwood Springs, CO 81601 24. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original., and all of which, when taken together, shall be deemed one and the same instrument. 1020)744 25. Authorization. By executing this Agreement, the parties acknowledge and represent to one another that all procedures necessary to contract and execute this Agreement have been performed and that the person signing for each party has been duly authorized to do so and to bind said party to the terms and conditions hereof. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date set forth above. STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY The foregoing Agree_rpent for the P1urchase and Sale of Water Rights was subscribed and sworn `o before me this 1� day of _s2.I/_to..e, 2014, by Robert A. Ittner, Jr. as Chair and Q,4 4 jt j 1, ,e 1 es as Secretary of the Board of County Commissioners of Pitkin County. WITNESS my hand and official seal. r7 1/7 1 L My commission t 1020334-4 MAROON CREEK LIMITED LIABILITY COMPANY, a Colorado limited liability company By.. Andrew V. Hecht, Manager STATE OF COLORADO ) ) as. COUNTY OF PITKIN ) The foregoing Agreqment for the Purchase and Sale of Water Rights was subscribed and sworn to before me this day of� 2014, by Andrew V. Hecht as Manager of Maroon Creek Limited'Liability Company, a Colorado limited liability company. WITNESS my hand and official seal. My commission expires: +Acg%2 if, ,KASH=SEMPLE ENSTATO Notary Public NOTAR120hh>:�nml8, 3016 . 1020334-t