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HomeMy WebLinkAboutbocc.ord.027.2003 Page: I of 6 11/26/2003 10: 30~ StLVI[~ DAVIS PITK~N COUNTY co R 0.00 O 0.00 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO APPROVING THE ACQUISITION OF A CONSERVATION EASEMENT FROM CONSTANCE "CONNIE") HARVEY ON HER 1840-ACRE SNOWMASS CREEK RANCH (HARVEY RANCH) ORDINANCE #~_~- 0 3 RECITALS The Pitkin County Open Space and Trails Program was created in 1990 to preserve lands o~' outstanding scenic, ecological, recreational, and agricultural values. The Open Space Program and many other conservationists in the valley have a long held goal of preserving remaining ranchlands in the Snowmass-Capitol Creek area. Nowhere else in the County is such a large area (approximately 10,000 acres) held by contiguous conservation minded owners. The first step in this dream was realized this year by securing the conservation of the Child Ranch. The Harvey property ("Harvey Ranch") covers 1840 acres above Snowmass Creek and adjacent to the Maroon Bells/Snowmass Wilderness Area. It is also adjacent to the 1480 acre Child ranch conserved by the County this year. The Harvey Ranch is possessed of outstanding scenic, habitat, and agricultural values. The Harvey Ranch currently has ttu'ee residential structures, two of which are in the headquarters compound. Ms. Harvey desires to sell Pitkin County a conservation easement that would limit further development to six additional houses and one rural and remote cabin. The location of the houses will be set forth in the conservation easement and will be the subject of an application to rezone 1316 acres of the ranch into rural and remote, and to grant 1041 approval to the house site locations. The Western Colorado Agricultural Heritage Fund (WCAHF) has agreed to assist Ms Harvey in facilitating this transaction including assistance in seeking land use approvals. WCAF recently merged with the Aspen Valley Land Trust (AVLT). The parties anticipate that the AVLT will cothold the conservation easement. The Open Space and Trails Board of Trustees by motion on October 16, 2003 recommended to the Board of County Commissioners that the County spend up to $3,000,000 of Open Space and Trails funds for the acquisition of the Harvey Conservation Easement. Ordinance Page 2 S~LVZR DI~VZ$ PTTK:N COLNTy CO ~ 0.1~0 D 0.0e Open Space Staff intend to seek funding assistance from Great Outdoors Colorado and other such sources though the amount of such potential assistance is unknown at this time. T1m acquisition of the Harvey Conservation Easement was not anticipated during the preparation of the year 2003 Open Space budget so a supplemental budget appropriation is required for these transactions. The contract will very likely not close until 2004 but our appropr!ation of funds this year is desirable. NOW THEREFORE, BE IT ORDAINED, by the Board of Cunnty Co nmlssioners of Pitkin County Colorado as follows: 1. Conslstent with the Recitals above, the Board approves the acquisition of the Harvey Ranch Conservation Easement tbr $3,000,000 which covers approximately 1840 acres. 2. The Chair is authorized to execute a contract for purchase of the Harvey Conservation Easement consistent with this Ordinance, and is author/zed to execute such other documents as may be necessary to finalize this transaction in a form approved by the Open Space Director and County Attorney. 5. Adjustments are made to the year 2003 budget as follows: OPEN SPACE AND TRAILS FUND Harvey Conservation Easement Transaction Costs Total Previous Revised Budget This Change Proi Budget $ $ $ 0 3,000,000 3,000,000 0 30,000 30,000 0 3,030,000 3,030,000 INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 22nd DAY OF OCTOBER 2003, NOTICE OF PUBLIC HEARING PUBLISHED IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE 25th DAY OF OCTOBER'2003. APPROVED AT SECOND READING AND PUBLIC HEARING ON THE 5TH DAY OF NOVEMBER, 2003. PUBLISHED AFTER ADOPTION IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE 15th DAY OF NOVEMBER, 2003. ATTEST: Jeaaette ,/ones Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF PITI{IN COUNTY, COLORADO Jack H~tfleld c~,.~,./ /~ . Date: ///~ S[-//d ~ APPROVED AS TO FORM: J~ey -~r~ Daie W~r Open Space and Trails Program Hilary S~_~h - '~ County Manager 10/06/03 R 0.06 EXHIBIT "A" - DESCRIPTION OF PROPERTY A conservation easement over and across the following: 49 ~ 7,55 ~ 0,00 n:\wordata\formConu act 13 8/27/03 i'P~tk~n County, Coloradl Zoning with USGS Map Page: 5 o{e 6 11126/2003 10:30fl $ILVIA DAVIS PITKIN COUNTY CO R 0.00 D 0.00 Harvey Ranch · Driveways DLtc.~ Private Land ! usFs 491755 Page: 5 of 6 12/03/03 CONTRACT FOR SALE OF CONSERVATION EASEMENT (Harvey Ranch-Pitkin County) THIS CONTRACT FOR SALE OF CONSER VA TION EASEMENT (the "Agreement") is entered into this'~r~ day of ~ece~.,.a¢~, 2003, by and between Canstance Harvey, 1100 Stage Road, Aspen, CO 81611 (facsimile number: 970 920- 3306) (the "Seller") and the Board of Pitkin County Commissioners of Pitkin County, 530 E: Main St., Aspen CO 81611. (facsimile number: 970 920 5198) (the "Purchaser"). The following exhibits are attached to this Agreement: Exhibit A Exhibit B - Exhibit C - DescriPtion of Property Map of Property Water Rights RECITALS: A. Seller is the owner of 1840 acres of land, more or less, located in Pitkin County Colorado, which is described on the attached Exhibit A, and shown on the attached Exhibit B (the "Land"); The Purchaser wishes to acquire a Conservation Easement, encumbering the Property for the purpose of maintaining the wildlife habitat, scenic, and agricultural values of the Property and preventing development of the Property beyond that prescribed in the Conservation Easement. The Seller wishes to sell a Conservation Easement so encumbering the Property, subject to the conditions provided below and providing that the eight (8) residential development envelopes as further described below are reserved thereunder and are also approved by Pitkin County in its regulatory capacity in accordance with a land use application to be submitted by Seller, and all applicable laws. AGREEMENT: PROPERTY. Seller agrees to sell, and Purchaser agrees to buy, on the terms and conditions set forth in this Agreement, a Conservation Easement encumbering that parcel of land containing 1840 acres more or less, located in Pitkin County Colorado, as described on Exhibit "A" and shown on Exhibit "B", attached hereto, including, without limitation, any and all surface and subsurface water, well, spring, irrigation, subirrigation or ditch rights of any type, incidents and appurtenances belonging thereto as further described in Exhibit "C"icollectively, with the "Land", referred to as the "Property"). Buyer aclcnowledge~ that Seller n :\word at akformContract 8/27/03 12/03/03 does not own the mineral rights to the property. The specific language of the Conservation Easement Deed will be agreed on by the parties pursuant to Paragraph 20 below. The parties anticipate that no public access will' be granted by the Conservation Easement. The Conservation Easement will further reserve to the Seller uses including, but not limited to, the following; A. Eight (8) residential building envelopes, including one building envelope surrounding the current ranch headquarters that has two existing separate residential structures. B. The ability to maintain existing roads. C. Continued agricultural operations and such improvements are attendant thereto. DI A commercial children's camp. E. One backcountry cabin not ts exceed 1000 square feet in floor area and consistent with other requirements for the Rural and Remote Zone District. F. Such other additional terms of the Conservation Easement Deed as may be further agreed upon by the parties pursuant to Paragraph 20. 1.1 Transferable Development Rights The land use application anticipated under this contract includes the rezoning of 1316 acres of the Property to the Rural/Remote Zone District for the purpose of allowing Transferable Development Rights (TDRs). Following this rezoning, the 1316 acres will be eligible for up to 37 TDRs. 8 TDRs will be reserved for the building envelopes to be reserved under the Conservation Easement. If, for any reason, the Seller elects not to utilize these TDRs on the Property, the Seller, may, at their sole discretion, sell or otherwise dispose of these TDRs. The Seller also desires to retain 1 TDR for potential use on other property owned by the Seller, and 2 TDRs for use on this Property. to facilitate a commercial children's camp should TDRs become eligible for that purpose. These three TDRs may be retained by the Seller for these uses, but if not so used may not be sold to a third party. The remaiuing 26 TDRs will be extinguished in the event that the Conservation Easement is conveyed pursuant to this Agreement. (Note that it is also anticipated that the site of the backcountry cabin as noted in paragraph 1 will remain eligible for such, notwithstanding the ext'mguishing of TDRs as provided in this Paragraph. EARNEST MONEY DEPOSIT. Concurrent with the full execution hereof as further described in Paragraph 18, Purchaser shall deliver the sum of Thirty Thousand and no/100s Dollars ($30,000.00) (the "Deposit") in escrow with Name, address, telephone and fax number of title company here (the "Title Company") as escrow agent to be held in an interest bearing account. The Deposit shall become non-refundable in the event the conditions described in paragraph 5 and the contingencies described in paragraph 18 and 19 are satisfied n :\wot dat akfownContraet 2 8/27/03 12/03/03 or are waived. If and when Closing occurs, the Deposit shall be applied to the Purchase Price of the Conservation Easement. PURCHASE PRICE. The purchase price for the Conservation Easement, including the Deposit, shall be Three Million and no/100s Dollars ($3,000,000.00) (the "Purchase Price"). The Purchase Price shall be paid by Purchaser to Seller as follows: Closing funds. At closing, the balance of the Purchase Price in cash, certified funds, or by wire transfer of federal or other immediately available funds. CLOSING DATE. The closing of the transaction contemplated hereunder (the "Closing") shall be held at the office of the Title Company on or before May 1, 2004, or th'n'ty (30) days following the Seller and Buyer's agreement regarding all terms of the Conservation Easement whichever is later, and in no even later than June 1, 2004 unless extended by the mutual consent of the parties hereto. (the "Closing Date"). SATISFACTORY INSPECTION AND REVIEW. The Seller and 'Purchaser expressly covenant and agree that Purchaser's satisfaction, in its sole discretion, upon the review and inspection provided for herein is a specific condition precedent to the obligation of Purchaser to purchase the Conservation Easement. Purchaser shall have a period in wkich to review the documents, receive the funding commitments and to make the inspections described below. The period of inspection (the "Inspection Period"), unless extended by mutual written agreement, shall tenminate on the earlier of: (i) Receipt by Seller of n0tice from Purchaser that the Property is suitable for purchase; or (ii) ninety (90)days after the Effective Date of this Contract, as defined herein. 6.1. Documents. Seller has provided to Purchaser a copy of the Title Company's Commitment No. (the "Commitment"). Seller shall provide, at Seller's expense, to Purchaser: (a) an update of the Commitment issued by the Title Company, together with legible copies of the deed or deeds by which the Seller holds title to the Property, legible copies of any instruments listed in the legal description for th~ Property, and legible copies of all exceptions to title, pursuant to which the Title Company shall issue to Purchaser a standard coverage owner's policy of title insurance, including "gap" and mechanic's lien coverage, insuring title and access to the Conservation Easement as of the date of Closing in the amount of the Purchase Price; (b) a Certificate of Taxes Due evidencing that all taxes owing on the Property have be~n paid in full; (c) a copy of the cmrent and previous year's Notice of Assessment, or other satisfactory evidence of the current and previous year's assessed value and assessment category for the Property; (d) to the extent in Seller's n :\word at a~formContract 8/27/03 12/03/03 possession, copies of any surveys or maps of the Land, plans relating to the building improvements, and studies and reports regai-d'mg the soils or water on or under the Land, and a Mineral Assessment that is adequate to determine the likelihood of mineral exploration or development. 6.2. Due Diligence: Inspection; Right of Entry. Purchaser shall have the right to enter upon the Property at reasonable t'nmes for surveying, inspection, and other reasonable purposes related to the transaction contemplated hereunder. Purchaser hereby indemnifies and holds harmless Seller from and against any and ail claims, liens, damages, losses, and causes of action which may be asserted by Purchaser or Purchaser's employees, agents, or any third party who enters upon the Property or conducts tests related to the Property at the request of or on behalf of Purchaser or its agents, provided that such indemnification and hold harmless shall not apply to claims arising out of the willful or wanton conduct of Seller. 6.3. Conditions Precedent to Buyer's Obligations. Prior to the expiration of the Inspection Period the Purchaser shall be satisfied, in its sole discretion, as to the condition of title, the condition of the Property, the suitability of the Property for encumbrance by the Conservation Easement. ELECTION AT THE END OF THE INSPECTION PERIOD. During the Inspection Period, Purchaser may make the above-described inspections, applications, reviews, studies, evaluations or surveys required to satisfy itself as to the acceptability and suitability of the Property to be subject to the Conservation Easement for purchase and the availability of funding for the purchase. Should, for any reason, the Purchaser not be satisfied that Property to be subject to the Conservation Easement is acceptable, the Purchaser shall notify the Seller in writing on or before the expiration of the Inspection Period of its dissatisfaction, at which time this Agreement shall be terminated and of no further force and effect and the Deposit shall be promptly returned to Purchaser (or anY portion thereof held by escrow agent); provided, however, if the objections of Purchaser are to title or other defects which Seller can reasonably cure within a twenty (20) day period following the receipt of notice from Purchaser, Seller shall have such period to cure such defects to the reasonable satisfaction of Purchaser, Purchaser shall, at any time, have the right to waive the conditions precedent to its performance under this Agreement before the end of the Inspection Period and if Purchaser elects to waive the conditions precedent to its performance and to terminate the Inspection Period, this Agreement will rem~m in full force and effect and the Deposit shall become non-refundable except as otherwise provided herein. Failure of Purchaser to notify Seller of its dissatisfaction prior to the expiration of the Inspection Period (or an extended Inspection Period) shall be deemed a waiver of this condition precedent and acceptance of the Property as suitable for purchase, as required above. Upon termination of the Agreement, Purchaser agrees to return to Seller all data previously delivered to Purchaser under the terms of this Agreement. n:\wor d atakformC ontract 4 8/27/03 12/03/03 CLOSING DOCUMENTS. At Closing, Seller shall execute and deliver to Purchaser or its assigns the Conservation Easement conveying a conservation easement interest in the Property, including access for the purposes described in the conservation easement, flee and clear of all liens, encumbrances and other exceptions, except such easements, restrictions and other exceptions as are of record and are approved by Purchaser during the Inspection Period. CONDITION OF THE PROPERTY, REPRESENTATIONS. As of the date of th/s Agreement and the date of Closing, Seller warrants and represents the following: 9.1. Seller is the record owner of the Property to be encumbered by the Conservation Easement hereunder. Upon the Closing Date, Purchaser will have good and marketable title to the Conservation Easement. This subparagraph shall not be deemed to prevent Canstance Harvey from transferring the Property to a Limited Liability Corporation or other similar entity used for estate planning purposes. The parties anticipate that such other entity may assume the role of the Seller, provided that the Purchaser is satisfied that tins change in the identity of the Seller does not jeopardize the conservation purposes of this contract as further provided in the assignment provisions in Paragraph 16.3. 9.2. There are no actions, suits, proceedings or investigations pending or, to Seller's knowledge threatened, against or affecting the Property, or arising out of Seller's conduct on the Property, other than Harvey v. Dryer which is the subject of a Settlement to terms of winch will be provided to the Purchaser during the Inspection Period. 9.3. To Seller's best knowledge, Seller is in substantial compliance with the laws, orders, and regulations of each governmental department, commission, board, or agency having jurisdiction over the Property in those cases where noncompliance would have a material'adverse effect on the Property. 9.4. Other than this Agreement, Seller is not party to nor subject to or bound by any agreement, contract or lease of any kind relating to the Property, except for a ditch abandonment agreement and a residential leaSe, the terms of which will be provided to the Purchaser during the Inspection Period. With the exception of said residential lease, there are no rights of possession to the Property or options or rights of first refusal in third parties, nor fights of access across the Property by third parties. 9.5. The Property, to the best of Seller's knowledge, is not in violation of any federal, state or local law, ordinance or regt~.lation relating to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions. The parties acknowledge n :\word atakformContract 8/27/03 5 12/03/03 that there are certain potential geological hazards affecting the property and all documents and other information regarding the same shall be provided to the Purchaser during the Inspection Period._ Neither Seller, nor to the best of Seller's knowledge any third party, has used, generated, manufactured, refined, produced, processed, stored or disposed of on, or under the Property or transported to or from the Property any Hazardous Materials nor does Seller intend to use the Property prior to closing date for the purpose of generating manufacturing, refining, producing, storing, handling, transfenSng, processing or transporting Hazardous Mater/als. For the purposes hereof, "Hazardous Materials" does not mean any typical agriculmral chemicals such as herbicides and pesticides utilized on properties of this type in Pitldn County, or any fuels kept on the property for use in vehicles or home heating, provided that all such chemicals are used in accordance with applicable laws and manufacturer's specifications; but shall mean any flammable explosives, radioactive materials, asbestos, organic compounds known as polychlorinated biphenyls, chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic substances or related materials, including, without limitation, any substances defined as or included in the definition of"hazardons substances", "hazardous material" or "toxi6 substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq., or any other federal, state or local statute, law, ordinance, code, rule, regulation, order, decree or other requirement of governmental authority regulating, relating to or imposing hability or standard of conduct concerning any hazardous, toxic or dangerous substance or material, as now or at any time hereafter in effect, and in the regulations adopted, published and/or promulgated pursuant to said laws. To the best of Seller's knowledge there are no underground storage tanks situated in the Property nor to the best of Seller's knowledge have such tanks been previously situated thereon. 9.6. No representation, warranty, or statement made herein by Seller contains any untrue statement of any material fact or omits to state any material fact necessary in order to make such representation, warranty, or statement not misleading. 9.7. Seller is duly authorized and has taken all necessary actions to execute and perform this Agreement and this Agreement is enforceable against Seller in accordance with its terms. 10. CONDITION OF PROPERTY, LIABILITY. Seller has made certain representations and warranties concem/ng the Property and its condition. During the Inspection Period the Purchaser has the right to inspect the condition of the n:\wordatakformContract 6 8127/03 12/03/03 11: 12. 13. Property. However, without regard to any inspections made by the Purchaser, noihing in this contract Shall relieve either party of liability for misrepresentation, breach of warranty or failure to reasonably inspect the condition of the Property. TAXES. Seller shall pay all general taxes and assessments and all sale, excise, transfer and deferred and recapture taxes of any type, for the Property for the current year and all years prior to Closing. Seller shall remain responsible for payment of taxes for the Property, including any taxes or assessments imposed upon or incurred as a result of the Conservation Easement. PRESERVATION OF PROPERTY; RISK OF LOSS. Except as otherwise set forth herein, Seller agrees that the Property shall remain as it now is until Closing, and that Seller agrees that it shall neither use nor consent to any use 0fthe Property for any purpose or in any manner which would adversely affect Purchaser's intended acquisition of the Conservation Easement as a conservation area or similar use. This covenant expressly precludes any mining of any type on the Property where the Seller's consent is required for such activity. In the event that Seller shall use or consent to such use of the Property, Purchaser may, without liability, refuse to accept the conveyance of the Conservation Easement, in which event the Deposit plus all accrued interest shall be refunded; or. alternatively it may elect to accept the conveyance of title to the Conservation Easement. COSTS AND FEES. Closing fees shall be paid by Seller and the Purchaser equally. The premium for the title insurance policy described above shall be paid by Seller. Per page recording costs for the Conservation Easement, shall be paid by Purchaser. Any other recording costs shall be paid by the Seller. Any sales or property transfer tax or fee shall be paid by Seller. The documentary fee shall be paid by the Purchaser. The cost of Surveying any boundary of the Property, which abuts adjacent private land that has heretofore not been surveyed, shall be bom by the Seller, provided however that if the Conservation Easement is conveyed to Purchaser pursuant to this contact, these expenses will be reimbursed to the Seller. The expense ofobtaihing any land use approvals as provided in Paragraph 18 shall be borne by the Seller. The cost of the mineral assessment shall be borne by the Purchaser. 14. LIQUIDATED DAMAGES; DEFAULT. 14.1. Seller's Remedies. In the event that (a) all of the conditions to this Agreement for the benefit of Purchaser shall have been satisfied, or waived by Purchaser, Co) Seller shall have fully performed or tendered performance of its obhgations under this Agreement, and (c) Purchaser shall be unable or shall fail to perform its obligations under this Agreement, then the entire amount of the Deposit shall be retained by Seller as liquidated damages under this Agreement, and Purchaser shall have no further liability to Seller. Purchaser and Seller hereby n :\word at akformC ontract 8/27/03 7 12/03/03 15. acknowledge and agree that Seller's damages would be difficult or impossible to determine and that the amount of the Deposit is the parties' best and most accurate est/mate of the damages Seller would suffer in the event the transaction provided for in this Agreement fails to close, and is reasonable under the circumstances existing as of the date of this Agreement. Purchaser and Seller agree that Seller's right to retain the Deposit shall be the sole remedy of Seller in the event of a breach of this Agreement by Purchaser. 14.2. Purchaser's Remedies. If Seller shall fail to consummate the transaction contemplated hereunder for any reason, or if such transaction shall fail to close for ~any reason other than default by Purchaser, Purchaser may elect, at Purchaser's sole option: (i) To terminate this Agreement and be released from its obligations hereunder, in which event the Deposit shall be returned to Purchaser. NOTICES. All notices required or permitted hereunder will be deemed to have been delivered only upon actual delivery thereof. All notices required or permitted hereunder shall be given by hand delivery, or sent by telecopier, or sent by Federal Express or other courier for delivery at the soonest po~sible time offered by such courier, directed as follows: If to Seller: at the address shown above If to Purchaser: Pitlcin County Attorney Pitkin County Open Space Director At the address or fax number shown above 16. MISCELLANEOUS. 16.1. Broker's Commission. Seller and Purchaser each represents to the other that they have not contracted with any broker or finder with regard to this transaction. Each party agrees to indemnify, defend and hold harmless the other 15om and against any and all liability, claims, demands, damages and costs of any kind arising out of or in connection with any broker's or finder,s fee, commission or charges claimed to be due any person in connection with such person's conduct respecting this transaction except as set forth herein. 16.2. .Certificate. At or prior to Closing, Seller shall furnish to Purchaser a duly executed Certificate of Non-Foreign Status in the form attached to this n:\wordata~formContract 8/27/03 8 12/03/03 Agreement as Exhibit "C". Seller hereby declares and represents to Purchaser that it is not a "foreign person" for purposes of withholding of federal tax as described in such Certificate. 16.3. Assigns. With the prior written approval of the Seller, which shall not be unreasonably withheld, Purchaser may assign this contract and :its rights as Purchaser hereunder, in whole or in part, including the Deposit by written assignment wherein the assignee assumes the obligations of Purchaser hereunder. Purchaser may require that the Conservation Easement be directly deeded by the Seller to an entity qualified to hold a conservation easement under the Internal Revenue Code and Colorado law. With the prior written approval of the Purchaser, which shall not be u~easonably withheld, Seller may assign this contract and its rights as Seller hereunder tO facilitate the transfer of the Property to another entity for estate planning purposes, provided that this assignment does not, in the sole discretion of the Purchaser, diminish the conservation benefits to be gained by the purchase of the Conservation Easement. 16.4. Binding Effect. The terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the parties' heirs, executors,' administrators, successors and assigns. 16.5. Exhibits. The exhibits hereto constitute an integral part of this Agreement and are hereby incorporated herein. 16.6. Counterparts; Facsimile Signatures. This Agreement may be eXecuted in counterparts, all ofwh/ch shall constitute one agreement which shall be binding on all of the parties, notwithstanding that all of the parties are not signatories to the original ~)r the same counterpart. Signatures may be evidenced by facsimile transmission and at the request of any party documents with original signatures shall be provided to the other party. 16.7. Severability. If any provision ofthis Agreement shall be held invalid, the other provisions hereof shall not be affected thereby and shall remain in full force and effect. 16.8. Entire Agreement. TI'tis Agreement represents the entire agreement of the parties and may not be amended except by a writing signed by each party thereto. 16.9. Authority. Each party to this Agreement warrants to the other that the respective signatories have full right and authority to enter into and consummate this Agreement and ail related documents. 16.10. Merger. The obligations, covenants, representations, warranties and remedies set forth in this Agreement shall not merge with transfer of title but shall remain in effect after the Date of Closing. 16.11. Further Actions. Each party shall execute and deliver or cause to be executed and delivered any and all instruments reasonably required to convey the Property to Purchaser and to vest in each party all rights, n:\wordatakformC ontract 8/27/03 9 12/03/03 17. 18. 19. interests and benefits intended to be conferred by this Agreement. After Closing Seller may deliver to Purchaser a properly completed Internal Revenue Service Form 8283. Purchaser agrees to execute such Form 8283 and promptly to return it to the Seller. 16.12. Governing Law. This Agreement shall be governed by and construed ~n accordance with the laws of the State of Colorado. 16.13. Offer. When signed and dehvdred to the Seller by Purchaser, this Agreement will constitute an offer to the Seller that can be accepted only by the Seller signing and delivering to Purchaser an executed original of this Agreement. Purchaser may withdraw such offer in writing at any time prior to its acceptance. 16.14. Labor and Material. Seller shall deliver to Purchaser at settlement an affidavit, on a form acceptable to Purchaser's lender, if apphcable, signed by Seller that no labor or materials have been furnished to the Property within the statutory period for the filing of mechanics' or materialmen's liens against the Property. If labor or materials have been furnished during the statutory period, Seller shall deliver to Purchaser an affidavit signed by Seller and the person or persons furnishing the labor or materials that the costs thereof have been paid. SATURDAYS, SUNDAYS, HOLIDAYS. If the final date of any time period of limitation set out in any provision of this agreement falls on a Saturday, Sunday or a legal holiday under the laws of the State of Colorado, then the time of such period shall be extended to the next day which is not a Saturday, Sunday or legal holiday. BUYER'S CONTINGENCY Notwithstanding the signature hereto by the County Open Space Director on behalf of Buyer, the obligation of Buyer to perform hereunder is expressly conditioned upon the adoption by Buyer of an ordinance authorizing the sale of the Property to Buyer pursuant to this Contract. In the event such ordinance is not duly adopted by Buyer within sixty (60) days following the date of th/s Contract or any extension thereof as the parties may, in writing, agree, either Seller or Buyer may, upon written notice to the other, terminate th_is Contract whereupon Buyer shall be entitled to a prompt return of all Earnest Money paid. In the event such ordinance is timely adopted. Buyer shall, at the request of Seller, re-execute this Contract by the signature of the Chairman or Vice-Chairman of the Pitkin County Board of County Commissioners. SELLER'S CONTINGENCY. The obligations of the Seller hereunder are specifically contingent upon Seller receiving Pitkin County's approval of a land use plan which sites 8 building envelopes in the area depicted on Exhibit B as not to be rezoned to Rural and Remote, at any time prior to Closing. Seller acknowledges that it is solely responsible for submitting a land use application toward this end, and that this application will be reviewed by Pitkin County in accordance with all applicable laws and regulations. If the Seller's contingency is not met or waived by Seller, then this, Agreement shall be terminated and each n:\wordatakformCon~'act 1 0 8/27/03 12/03/03 party shall be released from all obligations hereunder, and the Deposit shall be returned to Purchaser. 20. CONTINGENCY FOR AGREEMENT ON CONSERVATION EASEMENT TERMS. The obligations of the Sellef and Buyer hereunder are specffically contingent upon a mutual agreement as to the specific terms of the Conservation Easement. If this contingency is not met or waived by Seller and Buyer, then this Agreement shall be terminated and each party shall be released from all obligations hereunder, and the Deposit shall be returned to Purchaser. 21. EFFECTIVE DATE. The Effective Date of this Agreement shall be'the last date signed by either party. IN WITNESS WHEREOF, the parties hereto have executed tkis Agreement as of the date first above written. SELLER Print Name here PURCHASER: Date: Approved as to Form: . Re 'ie4/ff!~ ~proval by~,~ D~e ~¢~I1, ©peWSpace D~rector Final Approval: Title: Chair; Board of County Commissioners of Pitkin C0unty Date: n :\word atakformC ontr act 11 8/27/03 // EXI:IIBIT "A" - DESCRIPTION OF PROPERTY A conservation easement over ~ad across the following: 097- ~Pitldn County, i Zomng with USGS Map :~ Pzcpar~'d 9/~8/o3 b.~' The I.and Studio, ~orth /3 EXHIBIT C Together with all water, water rights, ditches and ditch rights, reservoirs and reservoir rights appurtenant to or used in connection with the Property, and it is the intent of the Grantor of the conservation easement to burden all such appurtenant rights or rights used in connection with the Property even if such rights are not specifically listed below: All of the Grantor's interest in the Hunter Ditch, 2 cfs, with an appropriation date of August 1, 1887, as adjudicated by the Garfield County DistriCt Court in Civil Action No. 125~ by Decree dated November 20, 1911. '2. All of the Grantor's interest in the Elk Creek Ditch, 19.29 cfs absolute, with an appropriation date of May 1, 1920, as adjudicated by the Garfield County District Court in Civil Action No. 1650 by Decree dated June 28, 1913; Elk Creek Reservoir No. 2, 100 acre-feet, with an appropriation date of May 1, 1920, as adjudicated by the Garfield County District Court in Civil Action No. 1650 by Decree dated June 28, 1913 All of the Grantor's interest in the Elk Creek No. 2 Ditch, 5 cfs absolute, with an appropriation date of August 10, 1918, as adjudicated by the Garfield County District Court in Civil Action No. 2294 by Decree dated November 27, 1922. o All of the Grantor's interest in the Elk Creek No. 2 Ditch First Enlargement, 3.46 cfs, with an appropriation date of August 1, 1955, as adjudicated by the Garfield County District Court in Civil Action No. 4613 by Decree dated May 12, 1958. Together with all wells, pumps, diversion structures and devices, and measuring devices on the Property or used in connection with the Property; Together with all easements, rights of way, access rights, special use permits, and any other permits pertaining to the Water Rights or the Property. The printed portions of this fonu, except (italicized) (differentiated) additions have be~n approved by the Colorado Real Estate Commisslon.(AF..41-I-94) THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. AGREEMENT TO AMEND/EXTEND CONTRACT RE: Con~ract dated Oa~--be-~, 2003 between Board of County Commissioners of Pitkin County (Purchaser) and Constance Harvey (Seller), relating to the sale and purchase of a conservation easement encumbering the follow/ng described real estate in the Count of, Colorado. known as Harvey Ranch Snovanass Road, Snowmass Colorado Street Address City State Buyer and Seller hereby agree to amend the aforesaid contract as follows: I. The date for closing and delivery of conservation easement deed is changed to Zip (Property) October I, 2004 The date for furnishing commitment for title insurance policy, and other documents to be provided by Seller pursuant to section 6.1is changed to "~'~lkJ~" [ I Other dates set forth in said contract shall be changed as follows: Thedateforprovidingaboundarysurveyischangedto ~'~J~.2 \ ! ~ 7. Additional amendments: All other terms and conditions of said contract shall remain the same. Seller Date of Seller's Signature 2-/I~//,'2004 Date of Seller's Signature ,2004 Purchaser Date of Buyer's Signature:? ~f/, 2004