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HomeMy WebLinkAboutbocc.ord.045.2001 AN ORDINANCE OF THE COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, APPROVING ACQUISITION OF MINERAL RIGHTS AND CONTRACTUAL NONDEVELOPMENT GUARANTEES ON THE INDF. PENDENCE TOWNSITE ORDINANCE # 01-dy5 RECITALS 1. The Pitkin County Open Space and Trails Board of Trustees is charged with the responsibility of acquiring open space properties within Pitkin County, and. 2. The Pitkin County Open Space and Trails Board of Trustees has designated certain types of properties as priority acquisitions, with scenic lands, habitat and recreational lands as priorities. 3. The Independence Town Site parcel is possessed of outstanding scenic, habitat, and recreational and cultural values. 4. The Aspen Valley Land Trust (AVLT) has entered into a $1. 1 million dollar contract to purchase the approximately 150 acre Geld Placer property which includes the Independence Town Site. This contract provides that the Loughran family will retain 4 TDR.s out of 5 potential on the property. 5. On September 25, 2001 the Open Space and Trails Board passed a motion recommending the expenditure of$300,000 for the acquisition of the mineral rights and the conveyance of the TDR to be acquired by AVLT, in the event that the property is not conveyed or in the process of conveyance to the United States of America by December 31, 2004. 6. Open Space and Trails is considering the possibility of jointly acquiring this interest with the City of Aspen, whose participation is not necessary as a condition of the contract. NOW THEREFORE, BE IT ORDAINED, by the Board of County Commissioners of Pitkin County, Colorado as follows: 1. The Board approves an expenditure of$300,000 for the purchase of the mineral rights and the conveyance of the TDR on the Independence Town Site in the event that the property is not subsequently conveyed or in the process of conveyance to the united States of America by December 31, 2004. 2. The Chair is authorized to execute a contract for the purchase of the mineral rights in the fndependence Town Site, and the possible conveyance of the TDR from AVLT, 1 466©55 Page: I of 4 04/08/2002 03:261 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 following approval of the form by the County Attorney's office and Open Space Director. The Chair is authorized to execute such other documents, as may be necessary to finalize this transaction following approval of the form of those documents by the County Attorney's office and Open Space Director. These documents may allow for participation by The City of Aspen in this acquisition. 3. That adjustments be made to the year 2001 budget as follows: OPEN SPACE AND TRAILS FUND Previous Revised _Budget This Change Proi Budget Property Acquisition Independence expenditures 0 300,000 300,000 OPEN SPACE AND TRAILS FUND TOTAL NET REVENUE (EXPENDITURES) CHANGE 300,000 300,000 INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 24th DAY OF OCTOBER, 2001. NOTICE OF PUBLIC HEARING PUBLISHED IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE 3rd DAY OF NOVEMBER, 2001. APPROVED AT SECOND READING AND PUBLIC HEARING ON THE 14th DAY OF `ER, 2001. Aovgob£l2. PUBLISHED AFTER ADO TION IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE DAY OF Ale ve,1„Se 2001 ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO Jeanette Jones Mick Ireland Deputy Clerk 1 Chair Date: 466055 °�- Page: 2 of 4 04/08/2002 03:26F SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 APPROVED AS TO FORM: John Ely Hilary ith �— CounCr y County Manager a Will, Director Open Space and Trails Program 466055 Page: 3 of 4 04/08/2002 03:261 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 3 £XMB1T A patem"Claims The Geld Plo a W it Ms Golden 8a8-A CM Mount RopeS#1881-A filly varden MS#i423 Cron MS#147Z Climax MS#}1754 Legal Tender AO#1307 Mixmic MS 01344 Last Do11er MS 01318 Wepeadmee, AU#1421 Little'Tiliie ,ills 02038 IIspatented Cbdms Golden Champioat Mill Site MS#1882-8 Mount Rope Milt Site MS 018dZ-0 Stanford No_ 1 Recordla8��W 56 Stanford No.2 Records Date br W 5 6 Stanford 140.a Xe o�g Die 6a,06 Stanford N • Sbeba, Rcerlt0g Don 5/29l1881 Choler Recordixg DoN 6,10881 Pacific Friday 7OUM P1ac� �[S 01730 Mammoth Ms#1424 w�F eA 466055 Page: 4 of 4 04/08/2002 03:261 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 J -7 � „ i��bt9CUL6 � 1 . T VV 7 d 6 MMHOL6 "A M ! AY 'Ad 9E :L ]HI ?0-6 -AON AGREEMENT THIS AGREEMENT is made and entered into this day of 2001 by and between ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation ("AVLT") and THE PrrKtN COUNTY BOARD OF COUNTY COMMISSIONERS ("Pitkin County"). WMESSETH: WHEREAS, AVLT has a contract with the Loughran Family and Central Trust dated September 27, 2001 (the "Purchase Contract") to purchase the property described in Exhibit A attached hereto and by this reference incorporated herein, commonly known as the Independence Townsite, consisting of 150 acres, more or less ("Independence Townsite or the Property"); and, WHEREAS, simultaneously with the closing of the Purchase Contract by AVLT, AVLT intends to sell and Pitkin County intends to purchase, for Three Hundred Thousand and no/100 Dollars ($300,000.00), through the use of Pitkin County Open Space and Trails Program Funds, the mineral rights for the Independence Townsite together with a covenant that AVLT will not improve or develop the Independence Townsite pursuant to the terms and conditions contained herein; and, WHEREAS, after AVLT purchases Property and conveys the severed mineral rights to Pitkin County, AVLT intends to either: a) exchange the Independence Townsite to the United States Forest Service ("USFS"); or, b) convey the Property directly to the USFS through any intermediary or mechanism under federal law available to the AVLT to effectuate such a conveyance; and, WHEREAS, in the event AVLT is unable to effectuate either an exchange or a conveyance of the Independence Townsite to the USFS on or before December 31, 2004, Pitkin County and AVLT have agreed that AVLT will conveyance to Pitkin defined by no additional consideration, the Transferable Development Right (TDR), y the Pitkin County Code, appurtenant to the Independence Townsite which will be owned by AVLT after the purchase of the Property, an the I acknowledge such conveyance is necessary In order to that hendependen Townsite will be improved or developed in the future. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in further consideration of the terms, conditions, covenants and mutual promises contained herein, the parties hereto agree as follows: 1. Conveyance of Mineral Rights. Simultaneously with AVLT's purchase of the Independence Townsite from the Loughran Family and Central Trust, pursuant to the deed, all he Purchase Contract, AVLT shall convey to Pitkin County, by quitclaim 467212 Page: 1 of 3 05/09/2002 09:42F' SILVIA DRVIS PITKIN COUNTY CO R 0.00 D 0.00 mineral rights associated with the Independence Townsite acquired by AVLT from the Loughran Family and Central Trust. This conveyance will not include a right of surface entry. Consideration. As consideration for the conveyance of the mineral rights described in Section 1, above, and in further consideration of the covenant granted to Pitkin County hereunder. that AVLT or its successors will not improve or develop the Independence Townsite, Pitkin County shall deliver to AVLT, simultaneously with the delivery of the quit claim deed for the mineral rights at the closing of the Purchase Contract, the sum of Three Hundred Thousand and not 100 Dollars ($300,000.00) in cash or"good" funds, as defined under Colorado law. 3. Covenant Not to Improve or Develop Independence Townsite. Upon consummation of the closing of the transaction contemplated in the Purchase Contract, AVLT will commence proceedings to either exchange or convey the Independence Townsite to the USFS. In the event AVLT is still the owner of the Independence Townsite on December 31, 2004 and no proceeding for the exchange or conveyance of Independence Townsite to the USFS is pending at that time, AVLT shall convey to Pitkin County, by appropriate documentation as reasonably requested or required by Pitkin County, the TDR appurtenant to the Independence Townsite owned by AVLT. 4. Contingent Obligations. AVLT's obligations to convey the mineral rights from the Independence Townsite to Pitkin County and the further obligations set forth in this Agreement are expressly contingent upon the consummation of the closing of the transaction of the purchase by AVLT of the Independence Townsite from the Loughran Family and Central Trust pursuant to the Purchase Contract. 5. Attorney's Fees. In the event that any litigation arising out of this Agreement, including the interpretation or enforcement of any of the terms or provisions hereof, the prevailing party shall also be entitled to recover its reasonable attorneys' fees and costs incurred therein. and the court shall include such attorneys' fees and costs in its j udgment. 6. Entire Agreement. This Agreement constitutes the entire Agreement and understanding between the parties relating to the subject matter hereof. All preceding representations or agreements relating to this subject matter hereof, whether written or oral, are hereby merged into this Agreement. 7. Waiver. Any .waiver by either party hereto of any breach of any kind or character whatsoever by the either party, whether such shall be direct or implied, shall not construed as a continuing waiver of or consent to any subsequent breach of this Agreement on the part of the other party. 8. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Colorado. 467212 Page: 2 of 3 i R nt A_ 05/09/2002 09: SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 9. Si a e. The parties agree that Pitkin County"s contribution toward the preservation of the Independence Townsite shall be memorialized by a brass plague placed on the Property in a location of high visibility, and further, that AVLT shall make a reasonable effort to require as a condition of any convevance to the USFS or any other party, as contemplated elsewhere in this Agreement, that such brass plaque will remain in place following such transaction(s). 10. Assignment. This Agreement is not assignable by AVLT and Pitkin may only assign its rights and obligations under this Agreement, in whole or in part, to the City of Aspen_ IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals as of the day and year first above written. ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation 1?9 By: 1 Executive erector PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS By: C, - V 66 Chairperson 467212 Page: 3 of 3 i 05/09/2002 09:429 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 AGREEMENT AMENDMENT The Agreement between Aspen Valley Land Trust, a Colorado nonprofit corporation ("AVLT") and the Board of County Commissioners of Pitkin County, Colorado ("Pitkin County") dated November 14, 2001 regarding the purchase of mineral rights and/or a TDR from AVLT by Pitkin County is amended as follows: 1. The parties hereby agree that the Quitclaim Deed for Mineral Rights to be conveyed to Pitkin County will be held in escrow as provided in the terms of the Escrow Agreement attached hereto as Exhibit A. 2. The parties agree that in the event AVLT is not able to obtain all necessary state and federal enviroiunental approval necessary for the United States Forest Service to exchange or purchase the Independence Townsite as contemplated by the Agreement, that AVLT will keep the mineral rights to be conveyed to Pitkin County and will convey the TDR to Pitkin County as required by the Escrow Agreement. 3. 'The parties agree that in the event that Pitkin County does not ultimately obtain title to the mineral rights as contemplated by the Agreement that AVLT will not convey such mineral rights to a third party. 4. The parties agree that in the event that AVLT does obtain all necessary environmental approvals necessary for the USFS to exchange or purchase the Independence Townsite and Pitkin County takes title to the mineral rights under the Escrow Agreement, but the exchange with the USFS still does not go forward, that AVLT will convey the TDR to Pitkin County as required by the Agreement. 5. The parties agree that AVLT will fund any required environmental clean-up of the Independence Townsite that would be required for the property to be considered by the USFS for purchase or exchange. In all other respects, the Agreement shall remain the same. Dated this 30th day of November, 2001. ASPEN VALLEY LAND TRUST, a Colorado PITKIN COUNTY BOARD OF COUNTY non-profit corporation COMMISSIONERS Z By:_ _ By: 1 Reid Haughey, . cutive Director Michael Ireland, Chairperso 467213 i 9- Page: I of 5 05/09/2002 09:489 R 0.00 0 0.00 SILVIA DAVIS PITKIN COUNTY CO T ESCROW AGREEMENT The undersigned,Aspen Valley Land Trust, a Colorado not-profit corporation,as Seller and the Board of County Commissioners of Pitkin County and the City of Aspen, as Buyers, have deposited with Land Title Guarantee Corporation,533 E. Hopkins Ave., Unit 102,Aspen, Colorado 81611 as Escrow Agent, the items described in Schedule A attached hereto. This Escrow Agreement and said Escrow Agent shall be subject to the following terms and conditions: A. The Escrow Agent shall not be liable for any act Escrow Agent may do or omit to do hereunder as such agent, while acting in good faith and in the exercise of Escrow Agent's own best judgment. B. The Escrow Agent is hereby expressly authorized to comply with and obey any and all orders,judgments or decrees of any court relating to this transaction, and in case the said Agent obeys or complies with any such order,judgment or decree of any court, Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding any such order,judgment or decree be subsequently reversed,modified,annulled,set aside or vacated or found to have been entered without jurisdiction. C. If at anytime a dispute shall exist as to the duty of the Escrow Agent under the terms hereof or if the items deposited hereunder are not withdrawn or used on or before December 31,2004,the Escrow Agent may deposit the documents in Escrow Agent's possession with the Clerk of the District Court for Pitkin County, Colorado and may interplead the parties hereto. Upon so depositing such documents and filing Escrow Agent's complaint in interpleader, the Escrow Agent shall be released from all liability, under the terms hereof, as to the documents so deposited. The parties Hereto, for themselves, their heirs, successors and assigns, do hereby submit themselves to the jurisdiction of said Court and do hereby appoint the Clerk of said Court as their agent for service of all process in connection with the proceedings referenced in this paragraph. D. In consideration of the acceptance of this Escrow Agreement by the Escrow Agent, the undersigned agree,jointly and severally, for themselves, their heirs, executors, administrators, successors and assigns, to indemnify and hold Escrow Agent harmless as to any liability incurred by Escrow Agent to any other person or corporation by reason of Escrow Agent's having accepted the same,or in connection herewith, and to reimburse Escrow Agent for all expenses, including, among other things, counsel fees and court costs incurred in connection herewith. E. The Escrow Agent is hereby instructed as follows: 1. To release and record the Quitclaim Deed for Minerals Rights referenced on Schedule A upon receiving written authorization to do so by both Buyers and Seller. Once such written authorization is provided to the Escrow Agent,the 467213 Page: 2 of 5 05//09/2002 09:489 SILVIA DAVIS PITKIN COUNTY CO R 0.00 0 0.00 Promissory Note referenced on Schedule A shall be returned to the Seller. The parties hereto agree that no effort to assert any rights on the Promissory Note will be made once the Quitclaim Deed is recorded. 2. In the alternative, to release the Promissory Note referenced on Schedule A to the Buyers, upon receiving a written demand from Buyers that such Promissory Note is to be released. If the Promissory Note is released to Buyers, the Quitclaim Deed for Mineral Rights referenced on Schedule A shall be marked VOID and returned to Seller. The parties hereto expressly agree that the Quitclaim Deed for Mineral Rights once marked VOID and returned to Seller shall not be recorded in the Real Property Records for Pitkin County, Colorado. The Provisions hereof shall be binding upon the undersigned depositors and their respective heirs, personal representatives, successors and assigns. This Escrow Agreement may be amended or extended only by the agreement of all parties hereto. Dated this day of November, 2001. BUYERS: BOARD OF COUNTY COMMISSIONERS OF THE CITY OF ASPEN, COLORADO PITKIN COUNTY, COLORADO WOE i" CV Michael Ireland, Cha4 erson Helen Klande or SELLER: ASPEN VALLEY LAND TRUST, a Colorado non-profit corporation �0' 1 Reid Haughey, Ex utive Director 467213 Page: 3 of 5 DAVIS PITKIN COUNTY CO .00 05909D 0.00002 09:48F R 0 SILVIA / SCHEDULE A The following items have been deposited with Escrow Agent: 1. Copy of the November 14, 2001 Agreement between Aspen Valley Land Trust, a Colorado non-profit corporation and the Pitkin County Board of County Commissioners, as amended on November 30, 2001. 2. A copy of the November 30, 2001 Assignment of Contract between the Pitkin County Board of County Commissioners and the City of Aspen. 3. Original executed Quitclaim Deed for Mineral Rights from Seller conveying such rights to Buyers. 4. Original executed Promissory Note from Seller to Buyers. 467213 Page: 4 of 5 05/09/2002 09:489 It SILVIA DAVIS PITKIN COUNTY CO R 0.00 0 0.00 PROMISSORY NOTE November 30, 2001 FOR VALUE RECEIVED,the undersigned,Aspen Valley Land Trust,a Colorado non-profit corporation, with offices at 117 Airport Business Center, Aspen, Colorado 81611 ("Maker") promises to pay to the order of BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO and THE CITY OF ASPEN, at 530. E. Main Street, Third Floor, Aspen, Colorado 81611 (the "Payees") the sum of$ 300,000.00, in lawful money of the United States, except as provided herein, determined and payable as follows: Maker shall pay to Payees an amount equal to $300,000.00, which sum shall be considered discharged upon the conveyance of the Transferred Development Right Certificate. This amount shall not bear an interest during the term of this Note and shall be due and payable by December 31, 2004. The terms"Maker"and"Payees"shall be construed to include the successors and assigns of the respective parties to this Note. The provisions of this Note shall be binding upon the successors and assigns of Maker and shall inure to the benefit of Payees,their legal representatives, successors ans assigns. No delay or omission on the part of Payees in exercising any rights under this Note shall operate as a waiver of such right or of any other right under this Note. This Note has been executed and delivered in and shall be governed by the laws of Colorado. Maker may prepay all or any part of the principal balance of this Note at anytime without penalty or premium. IN WITNESS WHEREOF, Maker has executed this Note as of the date first written above. ASPEN VALLEY LAND TRUST, a Colorado non-profit corporation By: Reid Haughey, Ex utive Director 467213 Page: 5 of 5 05/09/2002 09:48P SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 �/ :ASSIGNMENT OF CONTRACT RIGHTS This Assignment of Contract Rights (the "Assignment") is entered into this 30th day of November, 2001, between Pitkin County, Colorado, a Home Rule County, by and through its Board of County Commissioners (the "County") and The City of Aspen, Colorado (the "City"). RECITALS 1. On or about November 14, 2001, Pitkin County entered into an agreement with Aspen Valley Land Trust, a Colorado non-profit corporation ("AVLT"), to purchase mineral rights and/or a TDR for property owned by AVLT known as the "Independence Townsite" (the "Agreement"), subject to certain restrictions on the conveyance thereof. A copy of the Agreement and the amendment thereto is provided at Exhibit A. 2. Pursuant Section 10 of the Agreement, as amended, such Agreement is assignable by the County, in whole or in.part, to another party. 3. Piticin County desires to assign an interest in the mineral rights and/or TDR purchased from AVLT to the City and the City desires to obtain the same from Pitkin County. ASSIGNMENT For ten dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Pitkin County hereby assigns to the City, the right to accept joint title to the mineral rights and/or the TDR to be acquired from AVLT pursuant to the terms of the Agreement. The parties hereto, hereby agree that title in the mineral rights and/or TDR will be held jointly, however, if the TDR is subsequently sold by the parties, the proceeds therefrom will be distributed on a pro rata share based upon the County's contribution of$275,000.00 and the City's contribution of the $25,000.00 of the $300,000 purchase price under the Agreement, respectively. Dated this _day of #po , 2001. ASSIGNOR, BOARD OF COUNTY COMMISSIONERS FOR PITKIN COUNTY, COLORADO By: Michael C. Ireland, Chair 467214 Page: 1 of 2 05/09 SILVIA DAVIS PITKIN COUNTY CO R 0.00 D20 9,48E 00 3 ASSIGNEE, THE CITY OF ASP N, COLORADO By: -- H en Ian rud, Ma 467214 Page: 2 of 2 SILVIA DAVIS PITKIN COUNTY CO R 0.00 05/09/D20000 9.48E Iq AGREEMENT THIS AGREEMENT is made and entered into this lql� day of kbVt--v,,13L�s 2001 by and between ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation ("AVLT") and THE PrrKuv COUNTY BOARD of CouNTY CommissIONERS ("Pitkin County"). WITNESSETH: WHEREAS, AVLT has a contract with the Loughran Family and Central Trust dated September 27, 2001 (the "Purchase Contract") to purchase the property described in Exhibit A attached hereto and by this reference incorporated herein, commonly known as the Independence Townsite, consisting of 150 acres, more or less ("Independence Townsite or the Property"); and, WHEREAS, simultaneously with the closing of the Purchase Contract by AVLT, AVLT intends to sell and Pitkin County intends to purchase, for Three Hundred Thousand and no/100 Dollars ($300,000.00), through the use of Pitkin County Open Space and Trails Program Funds, the mineral rights for the Independence Townsite together with a covenant that AVLT will not improve or develop the Independence Townsite pursuant to the terms and conditions contained herein; and, WHEREAS, after AVLT purchases Property and conveys the severed mineral rights to Pitkin County, AVLT intends to either: a) exchange the Independence Townsite to the United States Forest Service ("USFS"); or, b) convey the Property directly to the USFS through any intermediary or mechanism under federal law available to the AVLT to effectuate such a conveyance; and, WHEREAS, in the event AVLT is unable to effectuate either an exchange or a conveyance of the Independence Townsite to the USFS on or before December 31, 2004, Pitkin County and AVLT have agreed that AVLT will conveyance to Pitkin County, for no additional consideration, the Transferable Development Right (TDR), as defined by the Pitkin County Code, appurtenant to the Independence Townsite which will be owned by AVLT after the purchase of the Property, and the parties hereto acknowledge that such conveyance is necessary in order to insure that the Independence Townsite will not be improved or developed in the future. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in further consideration of the terms, conditions, covenants and mutual promises contained herein, the parties hereto agree as follows: 1. Conveyance of Mineral Rights. Simultaneously with AVLT's purchase of the Independence Townsite from the Loughran Family and Central Trust, pursuant to the Purchase Contract, AVLT shall convey to Pitkin County, by quitclaim deed, all the 467212 Page: 1 of 3 rau.nd..aQ�TF1AT�ncTen....n..o i R n 05/09/2002 09:42F' SILVIA DAVIS PITKIN COUNTY CO / R 0.00 D 0.00 mineral rights associated with the Independence Townsite acquired by AVLT from the This conveyance will not include a right of surface Loughran Family and Central Trust. entry. 2. Consideration. As consideration for the conveyance of the mineral rights described in Section 1, above, and in further consideration o� the covenant granted to Pitkin County hereunder, that AVLT or its successors to A1l no improve or develop the VLTt simultaneously with the Independence Townsite, Pitkin County shall deliver delivery of the quit claim deed for the minerandn�t100 Dollars ($300,000.00) is at the closing of the Purchase n cash Contract, the sum of Three Hundred Thousand or"good" funds, as defined under Colorado law. 3. Covenant Not to Im rove or DevelopInde ndence Townsite. Upon consummation of the closing of the transaction contemplated in the Purchase C Independence AVLT will commence proceedings to either exchange or convey the Townsite to the USFS. In the event AVLT is t still the he owner of the or conveyance of nce Townsite on December 31, 2004 and no proceeding Independence Townsite to the USFS is pending at that time AVLTor all coneequired to Pitkin Pitkin County, by appropriate documentation as reasonab yrequested County,the TDR appurtenant to the Independence Townsite owned by AVLT. 4. Contingent Obligations. AVLT's obligations to convey the mineral rights from the Independence Townsite to Pitkin County and he further obligations closing o�he in this Agreement are expressly contingent upon theconsummation transaction of the purchase by AVLT of the independence Townsite from the Loughran Family and Central Trust pursuant to the Purchase f this 5. Attornev's Fees. In the event that any litigation of the termsorising rprout �isions Agreement, including the interpretation or enforcementY hereof, the prevailing party shall also be entitled to recover its reasonable fees and costs judgment. is and costs incurred therein, and the court shall include such attorneys judgment. 6. Entire Agreement. This Agreement constitutestmatter e entire.AgreemAll ent and understanding between the parties relating to the subs ing representations or agreements relating to this subject matter hereof, whether written or oral, are hereby merged into this Agreement. 7. aiver. Any waiver by either party hereto of any breach of any kind or W character whatsoever by the either party, whether such shall be direct or implied, shall not construed as a continuing waiver of or consent to any subsequent breach of this Agreement on the part of the other party. eement shall be governed and construed in g. Governing Law. This Agr accordance with the laws of the State of Colorado. / 467212 Page: 2 of 3 ._+ nnlinwc"T'FA,fP�(1CTArtrnn.nnnt >> Q�� �^" 05/09 SILVIA DAVIS PITKIN COUNTY CO R 0.00D2 9.4 0.00 9. Signage. The parties agree that Pitkin County's contribution toward the preservation of the Independence Townsite shall be memorialized by a brass plaque placed on the Property in a location of high visibility, and further, that AVLT shall make a reasonable effort to require as a condition of any conveyance to the USFS or any other party, as contemplated elsewhere in this Agreement, that such brass plaque will remain in place following such transaction(s). 10. Assignment. This Agreement is not assignable by AVLT and Pitkin may only assign its rights and obligations under this Agreement, in whole or in part, to the City of Aspen. IN WTINESS WHEREOF, the parties hereto have hereunto set their hands and seals as of the day and year first above written. ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation By: ZI - Executive erector PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS By: - V C6 Chairperson I 467212 Page: 3 of 3 1 05/09/2002 09:42; SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 \vnvinuall'FAAPKCTA�rrmrnt 11 R ni A— AGREEMENT AMENDMENT The Agreement between Aspen Valley Land Trust, a Colorado nonprofit corporation ("AVLT") and the Board of County Commissioners of Pitkin County,Colorado ("Pitkin County") dated November 14, 2001 regarding the purchase of mineral rights and/or a TDR from AVLT by Pitkin County is amended as follows: 1. The parties hereby agree that the Quitclaim Deed for Mineral Rights to be conveyed to Pitkin County will be held in escrow as provided in the terms of the Escrow Agreement attached hereto as Exhibit A. 2. The parties agree that in the event AVLT is not able to obtain all necessary state and federal environmental approval necessary for the United States Forest Service to exchange or purchase the Independence Townsite as contemplated by the Agreement, that AVLT will keep the mineral rights to be conveyed to Pitkin County and will convey the TDR to Pitkin County as required by the Escrow Agreement. 3. The parties agree that in the event that Pitkin County does not ultimately obtain title to the mineral rights as contemplated by the Agreement that AVLT will not convey such mineral rights to a third party. 4. The parties agree that in the event that AVLT does obtain all necessary environmental approvals necessary for the USFS to exchange or purchase the Independence Townsite and Pitkin County takes title to the mineral rights under the Escrow Agreement, but the exchange with the USFS still does not go forward, that AVLT will convey the TDR to Pitkin County as required by the Agreement. 5. The parties agree that AVLT will fund any required environmental clean-up of the Independence Townsite that would be required for the property to be considered by the USFS for purchase or exchange. In all other respects, the Agreement shall remain the same. Dated this 30th day of November, 2001. ASPEN VALLEY LAND TRUST, a Colorado PITKIN COUNTY BOARD OF COUNTY non-profit corporation COMMISSIONERS By: By: f Reid Haughey, 134Acutive Director Michael Ireland, Chairperso 'J 467213 Page:05/09/2 0 00 9.48E / SILVIA DAVIS PITKIN COUNTY CO R 0.00 G' f4 l`3 t ESCROW AGREEMENT The undersigned,Aspen Valley Land Trust,a Colorado not-profit corporation,as Seller and the Board of County Commissioners of Pitkin County and the City of Aspen, as Buyers, have deposited with Land Title Guarantee Corporation,533 E.Hopkins Ave.,Unit 102,Aspen,Colorado 81611 as Escrow Agent, the items described in Schedule A attached hereto. This Escrow Agreement and said Escrow Agent shall be subject to the following terms and conditions: A. The Escrow Agent shall not be liable for any act Escrow Agent may do or omit to do hereunder as such agent, while acting in good faith and in the exercise of Escrow Agent's own best judgment. B. The Escrow Agent is hereby expressly authorized to comply with and obey any and all orders,judgments or decrees of any court relating to this transaction, and in case the said Agent obeys or complies with any such order,judgment or decree of any court, Escrow Agent shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance,notwithstanding any such order,judgment or decree be subsequently reversed,modified,annulled,set aside or vacated or found to have been entered without jurisdiction. C. If at anytime a dispute shall exist as to the duty of the Escrow Agent under the terms hereof or if the items deposited hereunder are not withdrawn or used on or before December 31,2004,the Escrow Agent may deposit the documents in Escrow Agent's possession with the Clerk of the District Court for Pitkin County,Colorado and may interplead the parties hereto. Upon so depositing such documents and filing Escrow Agent's complaint in interpleader, the Escrow Agent shall be released from all liability, under the terms hereof, as to the documents so deposited. The parties hereto, for themselves, their heirs, successors and assigns, do hereby submit themselves to the jurisdiction of said Court and do hereby appoint the Clerk of said Court as their agent for service of all process in connection with the proceedings referenced in this paragraph. D. In consideration of the acceptance of this Escrow Agreement by the Escrow Agent, the undersigned agree,jointly and severally, for themselves, their heirs, executors, administrators, successors and assigns, to indemnify and hold Escrow Agent harmless as to any liability incurred by Escrow Agent to any other person or corporation by reason of Escrow Agent's having accepted the same,or in connection herewith, and to reimburse Escrow Agent for all expenses, including, among other things, counsel fees and court costs incurred in connection herewith. E. The Escrow Agent is hereby instructed as follows: 1. To release and record the Quitclaim Deed for Minerals Rights referenced on Schedule A upon receiving written authorization to do so by both Buyers and Seller. Once such written authorization is provided to the Escrow Agent,the 467213 Page: 2 of 5 l 05/09/2002 09:489 / SILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 Promissory Note referenced on Schedule A shall be returned to the Seller. The parties hereto agree that no effort to assert any rights on the Promissory Note will be made once the Quitclaim Deed is recorded. 2. In the alternative, to release the Promissory Note referenced on Schedule A to the Buyers, upon receiving a written demand from Buyers that such Promissory Note is to be released. If the Promissory Note is released to Buyers, the Quitclaim Deed for Mineral Rights referenced on Schedule A shall be marked VOID and returned to Seller. The parties hereto expressly agree that the Quitclaim Deed for Mineral Rights once marked VOID and returned to Seller shall not be recorded in the Real Property Records for Pitkin County, Colorado. The Provisions hereof shall be binding upon the undersigned depositors and their respective heirs,personal representatives, successors and assigns. This Escrow Agreement may be amended or extended only by the agreement of all parties hereto. Dated this _10MIAP —day of November, 2001. BUYERS: BOARD OF COUNTY COMMISSIONERS OF THE CITY OF ASPEN, COLORADO PITKIN COUNTY, COLORADO '-.090 Za 00e 40 Michael Ireland, Chai erson Helen Klande or SELLER: ASPEN VALLEY LAND TRUST, a Colorado non-profit corporation F0l Reid Haughey, Ex utive Director 467213 SILVIA DAVIS PITKI N COUNTY CO R 0.00 Page:0509D0 9.48� 000 SCHEDULE A The following items have been deposited with Escrow Agent: l. Copy of the November 14, 2001 Agreement between Aspen Valley Land Trust, a Colorado non-profit corporation and the Pitkin County Board of County Commissioners, as amended on November 30, 2001. 2. A copy of the November 30, 2001 Assignment of Contract between the Pitkin County Board of County Commissioners and the City of Aspen. 3. Original executed Quitclaim Deed for Mineral Rights from Seller conveying such rights to Buyers. 4. Original executed Promissory Note from Seller to Buyers. _e4ej/,4 /r 467213 Page: 4 of 5 05/09/2002 09:48; SILVIA DAVIS PITKIN COUNTY CO R 0.00 0 0.00 PROMISSORY NOTE November 30, 2001 FOR VALUE RECEIVED,the undersigned,Aspen Valley Land Trust,a Colorado non-profit corporation, with offices at 117 Airport Business Center, Aspen, Colorado 81611 ("Maker") promises to pay to the order of BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO and THE CITY OF ASPEN, at 530. E. Main Street, Third Floor, Aspen, Colorado 81611 (the "Payees") the sum of$ 300,000.00, in lawfiil money of the United States, except as provided herein, determined and payable as follows: Maker shall pay to Payees an amount equal to $300,000.00, which sum shall be considered discharged upon the conveyance of the Transferred Development Right Certificate. This amount shall not bear an interest during the term of this Note and shall be due and payable by December 31, 2004. The terms"Maker"and"Payees"shall be construed to include the successors and assigns of the respective parties to this Note. The provisions of this Note shall be binding upon the successors and assigns of Maker and shall inure to the benefit of Payees,their legal representatives,successors ans assigns. No delay or omission on the part of Payees in exercising any rights under this Note shall operate as a waiver of such right or of any other right under this Note. This Note has been executed and delivered in and shall be governed by the laws of Colorado. Maker may prepay all or any part of the principal balance of this Note at anytime without penalty or premium. IN WITNESS WHEREOF, Maker has executed this Note as of the date first written above. ASPEN VALLEY LAND TRUST, a Colorado non-profit corporation By: Reid Haughey, Ex utive Director 467213 Page: 5 of 5 05//09/2002 09:48P SILV IR DAVIS PITKIN COUNTY CO R 0.00 D 0.00 it ASSIGNMENT OF CONTRACT RIGHTS This Assignment of Contract Rights (the "Assignment") is entered into this 30th day of November, 2001, between Pitkin County, Colorado, a Home Rule County, by and through its Board of County Commissioners (the "County") and The City of Aspen, Colorado (the "City"). RECITALS 1. On or about November 14, 2001, Pitkin County entered into an agreement with Aspen Valley Land Trust, a Colorado non-profit corporation ("AVLT"), to purchase mineral rights and/or a TDR for property owned by AVLT known as the "Independence Townsite" (the "Agreement"), subject to certain restrictions on the conveyance thereof. A copy of the Agreement and the amendment thereto is provided at Exhibit A. 2. Pursuant Section 10 of the Agreement, as amended, such Agreement is assignable by the County, in whole or in part, to another party. 3. Pitkin County desires to assign an interest in the mineral rights and/or TDR purchased from AVLT to the City and the City desires to obtain the same from Pitkin County. ASSIGNMENT For ten dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Pitkin County hereby assigns to the City, the right to accept joint title to the mineral rights and/or the TDR to be acquired from AVLT pursuant to the terms of the Agreement. The parties hereto, hereby agree that title in the mineral rights and/or TDR will be held jointly, however, if the TDR is subsequently sold by the parties, the proceeds therefrom will be distributed on a pro rata share based upon the County's contribution of$275,000.00 and the City's contribution of the $25,000.00 of the $300,000 purchase price under the Agreement, respectively. Dated this S_day of &JOW , 2001. ASSIGNOR, BOARD OF COUNTY COMMISSIONERS FOR PITKIN COUNTY, COLORADO By: w PAS O/W Michael C. Ireland, Chair 467214 Page: 1 of 2 05/09 0 09:489 D SILVIA DAVIS PITKIN COUNTY CO R 0.00 0.00 ASSIGNEE, THE CITY OF AS�N, OLORADO By: H en lan rud, Ma 467214 Page: 2 of 2 SILVIR DRVIS PITKIN COUNTY CO R 0.00 05/09/0200000 9,48�