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HomeMy WebLinkAboutbocc.ord.006.2005AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO APPROVING THE ACQUISITION OF 129 ACRE COZY POINT SOUTH, AND AUTHORIZING THE CHAIR TO EXECUTE THE NECESSARY DOCUMENTS ORDINANCE # 006-2005 �m too @ m Recitals cfl o m OD " 1. The Open Space and Trails Program was created in 1990 for the purpose © ON to a m of preserving habitat, scenic lands, and historic agriculture. m 2. Aspen Country Day School, LLC ("ACDS LLC"), is the owner of the MMIRM m rc property commonly known as Cozy Point South, comprised of approximately 129 acres on the south west side of the intersection of Brush Creek Road and Highway 82. 3. ACDS LLC has agreed to sell the property for $2,750,000. t 4. Cozy Point South contains important wildlife habitat, provides a scenic s buffer, and has high potential for recreational amenities related to the Brush Creek Trail. x 5. On February 17, 2005, the Open Space and Trails Board formally moved to recommend this purchase, as detailed further below. 6. The Open Space Department intends to seek a grant from Great Outdoors Colorado ("GOCO") for this purchase. a J N NOW THEREFORE, BE IT ORDAINED, by the Board of County Commissioners of Pitkin County, Colorado as follows: 1. The Board approves the acquisition of the 129 acre Cozy Point South, and authorizes a payment from the Open Space Fund of up to $2.75 million toward that purchase, and authorizes a further $20,000 for transaction costs, including costs related to a GOCO grant, such as a mineral assessment and appraisal. 2. The Board authorizes staff to apply for a grant to the Great Outdoors Colorado for a portion of the purchase price. 3. To facilitate the GOCO grant process, and to seek any other financial savings to the County, the Board is willing to accept the property burdened by a conservation easement. 4. The Chair is authorized to execute a contract for the purchase outlined above, in a form approved by the County Attorney and Open Space Director. The Chair is further authorized to execute such other documents as may be necessary to finalize this transaction, including a GOCO grant, in a form approved by the Open Space Director and County Attorney. Ordinance #vim -2005 Page 2 5. Adjustments are made to the year 2005 budget as follows: OPEN SPACE AND TRAILS FUND Previous Revised Budget This Change Proi Budget (.'ozv Point South 0 2,750,000 2 750 000 Transaction Costs 0 20.000 20.000 Total 0) a c{} 4,110,E 3,Ytb Ooo INTRODUCED, FIRST READ AND SET FOR PUBLIC HEARING ON THE 23rd DAY OF February 2005. NOTICE OF PUB�.IC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE A ?"—DAY OF)Cy2005. Tattier APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE DAY OF MARCH 2005. PUBLISHED AFTER ADOPTION IN THE ASPEN TIMES WEEKLY ON THE DAY OF Ij&ee ff 2005. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO e tte Jones, Deputy Patricia K. Clapper Chair County Manager: Hilary Fletcher Smith County Manager i Approved as to Form: JyhrrlGl. El �slu�tp�Itorney 508169 Page: 2 of 18 03/23/2005 Open Space Director I IIIIII VIII IIIIII VIII IIII VIII IIIIIII III VIII IIII IIII 0 10: 34C 0 Z 7-D OWDIAIWAI(:�e The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission. (CBS3-7-04) THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND — FARM — RANCID IIIIII VIII IIIIII VIII IIII VIII IIIIIiI III VIII IIII IIII O Page: 2of 18 69 10:34F 16. 2005 SILVIA DAVIS PITKIN COUNTY CO R 0. 00 PU[C118s Price: $2,750.000.00 1. AGREEMENT. Buyer agrees to buy, and the undersigned Seller agrees to sell, the Property defined below on the terms and conditions set forth in this contract. 2. DEFINED TERMS. a. Buyer. Buyer, Pitkin County Board of County Commissioners will take title to the real property described below as ❑ Joint Tenants ❑ Tenants In Common ❑ Otber b. Property. The Property is the following legally described real estate: Commonly referred to as Cory Point South, situated on the southwest comer of the intersection of Brush Creek Road and Highway 82, approximately 129 acres, as further described in Exhibit A in the County of Pitkin, Colorado, together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto, all interest of Seller in vacated streets and alleys adjacent thereto except as herein excluded. C. Dates and Deadlines. Item No. Reference Event Date or Deadline 1 § 5a Loan Application Deadline N/A 2 § 5b Loan Commitment Deadline N/A 3 § 5c Buyer's Credit Information Deadline N/A 4 § 5c Disapproval of Bu er's Credit Deadline N/A 5 § 5d Existing Loan Documents Deadline N/A 6 § 5d Objection to Existing Loan Documents Deadline N/A 7 § 5d Approval of Loan Transfer Deadline N/A 8 § 6a(4) Appraisal Deadline N/A 9 § 7a Title Deadline March 4, 2005 10 § 7c Survey Deadline March 4, 2005 11 § 8c Survey Objection Deadline March 4, 2005 12 & 7b Document Request Deadline March 11, 2005 13 § 8a Title Objection Deadline March 11, 2005 14 § 8b Off -Record Matters Deadline March 11, 2005 15 § 8b Off -Record Matters Objection Deadline March 4, 2005 16 10 Seller's Property Disclosure Deadline March 11, 2005 17 Wa Inspection Objection Deadline March 11, 2005 18 4 lob Resolution Deadline March 14, 2005 19 lOc Property Insurance Objection Deadline March 11 2005 20 11 Closing Date Aril 12, 20 No. CBS3-7-04. CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND — FARM — RANCH) Page 1 of 9 Initial 3 21 § 16 Possession Date Closing 22 § 16 Possession Time 5:00 p.m. 23 § 27 Acceptance Deadline Date February 21, 2005 24 § 27 Acceptance Deadline Time 5:00 P.M. 25 Add. #6 County Approval Deadline March 31, 2005 26 Add. #5 Environmental Assessment March 11, 2005 d. Attachments. The following are a part of this contract: Exhibits A and B and Addendum No. 1 Note: The following disclosure forms are attached but are not a part of this contract: N/A e. Applicability of Terms. A check or similar mark in a box means that such provision is applicable. The abbreviation "N/A" means not applicable. The abbreviation "MEC" (mutual execution of this contract) means the latest date upon which both parties have signed this contract. 3. INCLUSIONS AND EXCLUSIONS. The Purchase Price includes the following items (Inclusions): a. Fixtures. If attached to the Property on the date of this contract, lighting, heating, plumbing, ventilating, and air conditioning fixtures, inside telephone wiring and connecting blocksfacks, plants, mirrors, floor coverings, intercom systems, sprinkler systems and controls; and N/A. b. Exclusions. The following attached fixtures are excluded from this sale: N/A. C. Personal Property. If on the Property whether attached or not on the date of this contract: storm windows, storm doors, window and porch shades, awnings, blinds, screens, window coverings, curtain rods, drapery rods, storage sheds, and all keys. If checked, the following are included: ❑ Smoke/Fire Detectors ❑ Security Systems; and N/A d. Transfer of Personal Property. The Personal Property to be conveyed at Closing shall be conveyed, by Seller, free and clear of all taxes, (except personal property taxes for the year of closing), liens and encumbrances, except N/A Conveyance shall be by bill of sale or other applicable legal instrument. e. Trade Futures. With respect to trade fixtures, Seller and Buyer agree as follows: N/A f. Water Rights. The following legally described water rights: All water rights appurtenant to or historically used upon or in connection with the Property, including without limitation the rights described on Exhibit B attached hereto and made a part hereof by this reference. Any water rights shall be conveyed by bargain and sale deed or other applicable legal instrument. g. Growing Crops. With respect to growing crops, Seller and Buyer agree as follows: N/A It. Instruments of Transfer. The Inclusions are to be conveyed at Closing free and clear of all taxes, liens and encumbrances, except as provided in § 11. Conveyance shall be by bill of sale or other applicable legal instrument(s). any water rights shall be conveyed by Bargain and Sale Deed or other applicable legal instrument(s). 4. PURCHASE PRICE AND TERMS. The Purchase Price set forth below shall be payable in U.S. Dollars by Buyer as follows: Item No. I Reference I Item I Amount I Amount M or Note: If there is an inconsistency between the Purchase Price on the first page and this § 4, the amount in § 4 shall control. No. CBS3-7-04. CONTRACT TO BUY AND SELL REAL ESTATE Page 2 of 9 (VACANT LAND — FARM — RANCH) lnftial IIiIII II II III IIIIII I IIII IIII III III 508169 0of 18 2 10:34f ` SILVIR DAVIS PITKIN COUNTY CO R 0.00 D 0.00 a. Earnest Money. The Earnest Money set forth in this section, in the form of check, is part payment of the Purchase Price and shall be payable to and held by Pitkin County Title, Inc. (Earnest Money Holder), in its trust account, on behalf of both Seller and Buyer. The Earnest Money deposit shall be tendered with this contract unless the parties mutually agree and set forth a different deadline in writing for its payment. The parties authorize delivery of the Earnest Money deposit to the closing company, if any, at or before Closing. b. Cash at Closing. All amounts paid by Buyer at Closing including Cash at Closing, plus Buyer's closing costs, shall be in funds which comply with all applicable Colorado laws, which include cash, electronic transfer funds, certified check, savings and loan teller's check and cashier's check (Good Funds). S. FINANCING CONDITIONS AND OBLIGATIONS. [Omitted—Not Applicable] 6. APPRAISAL PROVISIONS. a. Appraisal Condition. This subsection a. ❑ Shall ® Shall Not apply. Buyer shall have the sole option and election to terminate this contract if the Purchase Price exceeds the Property's valuation determined by an appraiser engaged by N/A The contract shall terminate by Buyer giving Seller written notice of termination and either a copy of such appraisal or written notice from lender that confirms the Property's valuation is less than the Purchase Price, received on or before Appraisal Deadline (§ 2c). If Seller does not receive such written notice of termination on or before Appraisal Deadline (§ 2c), Buyer waives any right to terminate under this subsection. b. Cost of Appraisal. Cost of any appraisal to be obtained after the date of this contract shall be timely paid by ❑ Buyer ❑ Seller. N/A 7. EVIDENCE OF TITLE. a. Evidence of Title. On or before Title Deadline (§ 2c), Seller shall cause to be furnished to Buyer, at Seller's expense, a current commitment for owner's title insurance policy (Title Commitment) in an amount equal to the Purchase Price, or if this box is checked, ❑ An Abstract of title certified to a current date. At Seller's expense, Seller shall cause the title insurance policy to be issued and delivered to Buyer as soon as practicable at or after Closing. If a title insurance commitment is furnished, it ® Shall ❑ Shall Not commit to delete or insure over the standard exceptions which relate to: (1) parties in possession, (2) unrecorded easements, (3) survey matters, (4) any unrecorded mechanic's liens, (5) gap period (effective date of commitment to date deed is recorded), and (6) unpaid taxes, assessments and unredeemed tax sales prior to the year of Closing. Any additional premium expense to obtain this additional coverage shall be paid by ❑ Buyer ® Seller. b. Copies of Exceptions. On or before Title Deadline (§ 2c), Seller, at Seller's expense, shall furnish to Buyer (1) a copy of any plats, declarations, covenants, conditions and restrictions burdening the Property, and (2) if a title insurance commitment is required to be famished, and if this box is checked ® Copies of any Other Documents (or, if illegible, summaries of such documents) listed in the schedule of exceptions (Exceptions). Even if the box is not checked, Seller shall have the obligation to famish these documents pursuant to this subsection if requested by Buyer any time on or before Document Request Deadline (§ 2c). This requirement shall pertain only to documents as shown of record in the offices of the clerk and recorder. The abstract or title insurance commitment, together with any copies or summaries of such documents furnished pursuant to this section, constitute the title documents (Title Documents). c Survey. On or before Survey Deadline (§ 2c) ® Seller ❑ Buyer shall cause Buyer and the issuer of the Title Commitment or the provider of the opinion of title if an abstract, to receive a current ® Improvement Survey Plat ❑ Improvement Location Certificate ❑ (the description checked is known as Survey). An amount not to exceed $ N/A for Survey shall be paid by ❑ Buyer ® Seller. S. TITLE AND SURVEY REVIEW. a. Title Review. Buyer shall have the right to inspect the Title Documents. Written notice by Buyer of unmerchantability of title, form or content of Title Commitment or of any other unsatisfactory title condition shown by the Title Documents, notwithstanding § 12, shall be signed by or on behalf of Buyer and giv n Ito Seller on or No. CBS3-7-04. CONTRACT TO BUY AND SELL REAL ESTATE Page 3 of 9 (VACANT LAND – FARM – RANCH) Initial 508169 SIII I IIIA II II TKIIIIo I I VIII I II I I II00 0Page: 5 of 18 3/23/200 10 34r 00 s before Title Objection Deadline (§ 2c), or within five (5) calendar days after receipt by Buyer of any change to the Title Documents or endorsement to the Title Commitment together with a copy of the document adding any new Exception to title. If Seller does not receive Buyer's notice by the date specified above, Buyer accepts the condition of title as disclosed by the Title Documents as satisfactory. b. Matters not Shown by the Public Records. Seller shall deliver to Buyer, on or before Off -Record Matters Deadline (§ 2c) true copies of all leases and surveys in Seller's possession pertaining to the Property and shall disclose to Buyer all easements, liens (including, without limitation, governmental improvements approved, but not yet installed) or other title matters (including, without limitation, rights of first refusal, and options) not shown by the public records of which Seller has actual knowledge. Buyer shall have the right to inspect the Property to determine if any third party has any right in the Property not shown by the public records (such as an unrecorded easement, unrecorded lease, or boundary line discrepancy). Written notice of any unsatisfactory condition disclosed by Seller or revealed by such inspection, notwithstanding § 12, shall be signed by or on behalf of Buyer and given to Seller on or before Off -Record Matters Objection Deadline (§ 2c). If Seller does not receive Buyer's notice by said date, Buyer accepts title subject to such rights, if any, of third parties of which Buyer has actual knowledge. C. Survey Review. Buyer shall have the right to inspect Survey. If written notice by or on behalf of Buyer of any unsatisfactory condition shown by Survey, notwithstanding § 8b or § 12, is received by Seller on or before Survey Objection Deadline (§ 2c) then such objection shall be deemed an unsatisfactory title condition. If Seller does not receive Buyer's notice by Survey Objection Deadline (§ 2c), Buyer accepts Survey as satisfactory. d. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR_ INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYER SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES. In the event the Property is located within a special taxing district and Buyer desires to terminate this contract as a result, if written notice is received by Seller on or before Off -Record Matters Objection Deadline (§ 2c), this contract shall then terminate. If Seller does not receive Buyer's notice by such date, Buyer accepts the effect of the Property's inclusion in such special taxing district and waives the right to terminate. e. Right to Object, Cure. Buyer's right to object shall include, but not be limited to those matters listed in § 12. If Seller receives notice of unmerchantability of title or any other unsatisfactory title condition or commitment terms as provided in subsections 8 a, b, c and d above, Seller shall use reasonable efforts to correct said items and bear any nominal expense to correct the same prior to Closing. If such unsatisfactory title condition is not corrected to Buyer's satisfaction on or before Closing, this contract shall then terminate; provided, however, Buyer may, by written notice received by Seller on or before Closing, waive objection to such items. E Title Advisory. The Title Documents affect the title, ownership and use of the Property and should be reviewed carefully. Additionally, other matters not reflected in the Title Documents may affect the title, ownership and use of the Property, including without limitation boundary lines and encroachments, area, zoning, unrecorded easements and claims of easements, leases and other unrecorded agreements, and various laws and governmental regulations concerning land use, development and environmental matters. The surface estate may be owned separately from the underlying mineral estate, and transfer of the surface estate does not necessarily include transfer of the mineral rights. Third parties may hold interests in oil, gas, other minerals, geothermal energy or water on or under the Property, which interests may give them rights to enter and use the Property. Such matters may be excluded from the title insurance policy. Buyer is advised to timely consult legal counsel with respect to all such matters as there are strict time limits provided in this contract (e.g., Title Objection Deadline [§ 2c] and Off -Record Matters Objection Deadline [§ 2c]). 9. LEAD-BASED PAINT. Unless exempt, if the improvements on the Property include one or more residential dwellings for which a building permit was issued prior to January 1, 1978, this contract shall be void unless a completed Lead -Based Paint Disclosure (Sales) form is signed by Seller and the required real estate licensees, which must occur prior to the parties signing this contract. No. CBS3-7-04. CONTRACT TO BUY AND SELL REAL ESTATE Page 4 of 9 (VACANT LAND — FARM — RANCH) 7n11I II I II II II II IIII I I II II I II I I II 50816 o f 18 03/23/2005 10.34E SILVIP DAVIS PITKIN COUNTY CO R 0.00 0 0.00 10. PROPERTY DISCLOSURE, INSPECTION AND INSURABILITY; BUYER DISCLOSURE. On or before Seller's Property Disclosure Deadline (§ 2c), Seller agrees to provide Buyer with a Seller's Property Disclosure (Vacant Land) form completed by Seller to the best of Seller's current actual knowledge. a. Inspection Objection Deadline. Buyer shall have the right to have inspections of the physical condition of the Property and Inclusions, at Buyer's expense. If the physical condition of the Property or Inclusions is unsatisfactory in Buyer's subjective discretion, Buyer shall, on or before Inspection Objection Deadline (§ 2c): (1) notify Seller in writing that this contract is terminated, or (2) provide Seller with a written description of any unsatisfactory physical condition which Buyer requires Seller to correct (Notice to Correct). If written notice is not received by Seller on or before Inspection Objection Deadline (§ 2c), the physical condition of the Property and Inclusions shall be deemed to be satisfactory to Buyer. b. Resolution Deadline. If a Notice to Correct is received by Seller and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Resolution Deadline (§ 2c), this contract shall terminate one calendar day following the Resolution Deadline (§ 2c), unless before such termination Seller receives Buyer's written withdrawal of the Notice to Correct. C. Insurability. This contract is conditioned upon Buyer's satisfaction, in Buyer's subjective discretion, with the availability, terms, conditions and premium for property insurance. This contract shall terminate upon Seller's receipt, on or before Property Insurance Objection Deadline (§ 2c) of Buyer's written notice that such insurance was not satisfactory to Buyer. If said notice is not timely received, Buyer shall have waived any right to terminate under this provision. d. Damage, Liens and Indemnity. Buyer is responsible for payment for all inspections, surveys, engineering reports or for any other work performed at Buyer's request and shall pay for any damage which occurs to the Property and Inclusions as a result of such activities. Buyer shall not permit claims or liens of any kind against the Property for inspections, surveys, engineering reports and for any other work performed on the Property at Buyer's request. Buyer agrees to indemnify, protect and hold Seller harmless from and against any liability, damage, cost or expense incurred by Seller in connection with any such inspection, claim, or lien. This indemnity includes Seller's right to recover all costs and expenses incurred by Seller to enforce this subsection, including Seller's reasonable attorney and legal fees. The provisions of this subsection shall survive the termination of this contract. 11. CLOSING. Delivery of deed from Seller to Buyer shall be at closing (Closing). Closing shall be on the date specified as Closing Date (§ 2c) or by mutual agreement at an earlier date. The hour and place of Closing shall be as designated by Pitkin County Title, Inc. 12. TRANSFER OF TITLE. Subject to tender or payment at Closing as required herein and compliance by Buyer with the other terms and provisions hereof, Seller shall execute and deliver a good and sufficient special warranty deed to Buyer, at Closing, conveying the Property free and clear of all taxes except the general taxes for the year of Closing. Except as provided herein, title shall be conveyed free and clear of all liens, including any governmental liens for special improvements installed as of the date of Buyer's signature hereon, whether assessed or not. Title shall be conveyed subject to: a. those specific Exceptions described by reference to recorded documents as reflected in the Title Documents accepted by Buyer in accordance with § 8a (Title Review), b. distribution utility easements, C. those specifically described rights of third parties not shown by the public records of which Buyer has actual knowledge and which were accepted by Buyer in accordance with § 8b (Matters not Shown by the Public Records) and § 8c (Survey Review), d. inclusion of the Property within any special taxing district, e. the benefits and burdens of any declaration and party wall agreements, if any, and L other matters shown on the Improvement Survey 13. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall be paid at or before Closing from the proceeds of this transaction or from any other source. 14. CLOSING COSTS, DOCUMENTS AND SERVICES. Buyer and Seller shall pay, in Good Funds, their respective Closing costs and all other items required to be paid at Closing, except as otherwise provided herein. Buyer and Seller shall sign and complete all customary or reasonably required documents at or bef e I g. Fees No. CBS3-0-04. CONTRACT TO BUY AND SELL REAL ESTATE Page 5 of 9 (VACANT LAND — FARM — RANCH) Initial VIII VIII IIIIII VIII IIII II I IIIIII III II II 508 of 69 2 38 ^/ 03/23/2005 10.34f / SILVIR DAVIS PITKIN COUNTY CO R 0.00 D 0.00 for real estate Closing services shall be paid at Closing by ® One-half by Buyer and One-half by Seller ❑ Buyer ❑ Seller ❑ Other The local transfer tax of N/A % of the Purchase Price shall be paid at Closing by ❑ One-half by Buyer and One-half by Seller ❑ Buyer ❑ Seller ❑ Other Any sales and use tax that may accrue because of this transaction shall be paid when due by ❑ Buyer ❑ Seller. 15. PRORATIONS. The following shall be prorated to Closing Date (§ 2c), except as otherwise provided: a. Taxes. Personal property taxes, if any, and general real estate taxes for the year of Closing, based on ® Taxes for the Calendar Year Immediately Preceding Closing ❑ Most Recent Mill Levy and Most Recent Assessment ❑ Other b. Rents. Rents based on ❑ Rents Actually Received ❑ Accrued. C. Other Prorations. Water and sewer charges; interest on any continuing loan, and d. Final Settlement. Unless otherwise agreed in writing, these prorations shall be final. 16. POSSESSION. Possession of the Property shall be delivered to Buyer on Possession Date and Possession Time (§ 2c), subject to the following leases or tenancies: None If Seller, after Closing, fails to deliver possession as specified, Seller shall be subject to eviction and shall be additionally liable to Buyer for payment of $ -0- per day from the Possession Date (§ 2c) until possession is delivered. 17. NOT ASSIGNABLE. Except as provided in Paragraph 10(h) of the Contract, this Contract shall not be assignable by Buyer without Seller's prior written consent. Except as so restricted, this Contract shall inure to the benefit of and be binding upon the heirs, personal representatives, successors and assigns of the parties. 18. INSURANCE; CONDITION OF, DAMAGE TO PROPERTY AND INCLUSIONS. Except as otherwise provided in this contract, the Property, Inclusions or both shall be delivered in the condition existing as of the date of this contract, ordinary wear and tear excepted. a. Casualty Insurance. In the event the Property or Inclusions shall be damaged by fire or other casualty prior to Closing, in an amount of not more than ten percent of the total Purchase Price, Seller shall be obligated to repair the same before the Closing Date (§ 2c). In the event such damage is not repaired within said time or if the damages exceed such sum, this contract may be terminated at the option of Buyer by delivering to Seller written notice of termination. Should Buyer elect to carry out this contract despite such damage, Buyer shall be entitled to a credit, at Closing, for all the insurance proceeds resulting from such damage to the Property and Inclusions payable to Seller but not the owners' association, if any, plus the amount of any deductible provided for in such insurance policy, such credit not to exceed the total Purchase Price. b. Damage, Inclusions and Services. Should any Inclusion or service (including systems and components of the Property, e.g. heating, plumbing, etc.) fail or be damaged between the date of this contract and Closing or possession, whichever shall be earlier, then Seller shall be liable for the repair or replacement of such Inclusion or service with a unit of similar size, age and quality, or an equivalent credit, but only to the extent that the maintenance or replacement of such Inclusion, service or fixture is not the responsibility of the owners' association, if any, less any insurance proceeds received by Buyer covering such repair or replacement The risk of loss for any damage to growing crops, by fire or other casualty, shall be borne by the party entitled to the growing crops, if any, as provided in § 3 and such party shall be entitled to such insurance proceeds or benefits for the growing crops, if any. C. Walk -Through and Verification of Condition. Buyer, upon reasonable notice, shall have the right to walk through the Property prior to Closing to verify that the physical condition of the Property and Inclusions complies with this contract. 19. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document, Buyer and Seller acknowledge that the respective broker has advised that this document has important legal consequences and has recommended the examination of title and consultation with legal and tax or other counsel before signing this contract. No. CBS3-7-04. CONTRACT TO BUY AND SELL REAL ESTATE (VACANT LAND — FARM — RANCH) Page 6 of 9 III IIIIIIIIIII IIIIIIIIIIIIIIIII IIIIIIiIII III 03/23/2005 D89 Cl x6ia:a4c SILVIP DAVIS PITKIN COUNTY CO R 0.00 D 0.00 20. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence hereof. If any note or check received as Earnest Money hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed or waived as herein provided, there shall be the following remedies: a. If Buyer is in Default: ❑ (1) Specific Performance. Seller may elect to treat this contract as canceled, in which case all payments and things of value received hereunder shall be forfeited and retained on behalf of Seller, and Seller may recover such damages as may be proper, or Seller may elect to treat this contract as being in full force and effect and Seller shall have the right to specific performance or damages, or both ® (2) Liquidated Damages. All payments and things of value received hereunder shall be forfeited by Buyer and retained on behalf of Seller and both parties shall thereafter be released from all obligations hereunder. It is agreed that such payments and things of value are LIQUIDATED DAMAGES and (except as provided in subsection c) are SELLER'S SOLE AND ONLY REMEDY for Buyer's failure to perform the obligations of this contract. Seller expressly waives the remedies of specific performance and additional damages. b. If Seller is in Default: Buyer may elect to treat this contract as canceled, in which case all payments and things of value received hereunder shall be returned and Buyer may recover such damages as may be proper, or Buyer may elect to treat this contract as being in full force and effect and Buyer shall have the right to specific performance or damages, or both. C. Costs and Expenses. In the event of any arbitration or litigation relating to this contract, the arbitrator or court shall award to the prevailing party all reasonable costs and expenses, including attorney and legal fees. 21. EARNEST MONEY DISPUTE. In the event of any controversy regarding the Earnest Money and things of value (notwithstanding any termination of this contract or mutual written instructions), Earnest Money Holder shall not be required to take any action. Earnest Money Holder may await any proceeding, or at its option and sole discretion, interplead all parties and deposit any money or things of value into a court of competent jurisdiction and shall recover court costs and reasonable attorney and legal fees. 22. TERMINATION. In the event this contract is terminated, all payments and things of value received hereunder shall be returned and the parties shall be relieved of all obligations hereunder, subject to §§ 10d, 21 and 22. 23. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado Real Estate Commission.) See attached Addendum No. 1 and attached Exhibits A and B. 24. ENTIRE AGREEMENT, MODIFICATION, SURVIVAL. This agreement constitutes the entire contract between the parties relating to the subject hereof, and any prior agreements pertaining thereto, whether oral or written, have been merged and integrated into this contract. No subsequent modification of any of the terms of this contract shall be valid, binding upon the parties, or enforceable unless made in writing and signed by the parties. Any obligation in this contract that, by its terms, is intended to be performed after termination or Closing shall survive the same. 25. NOTICE OF ACCEPTANCE, COUNTERPARTS. This proposal shall expire unless accepted in writing, by Buyer and Seller, as evidenced by their signatures below, and the offering party receives notice of acceptance pursuant to § 26 on or before Acceptance Deadline Date (§ 2c) and Acceptance Deadline Time (§ 2c). If accepted, this document shall become a contract between Seller and Buyer. A copy of this document may be executed by each party, separately, and when each party has executed a copy thereof, such copies taken together shall be deemed to be a full and complete contract between the parties. Buyer: Board of County ComLOppenSpacee' ' Pitkin County, Color III VIII II II Ilill llll lull IIIIII VIII I III 03/23/2005 das aaa ByDale I Dvector, Department SILVIR DAVIS PITKIN COUNTY CO R 0.00 D 0.00 Date: February 2005 No. CBS3-7-04. CONTRACT TO BUY AND SELL REAL ESTATE Page 7 of 9 (VACANT LAND — FARM — RANCH) Initial 0 Address: Phone No.: Fax No.: [NOTE: If this offer is being countered or rejected, do not sign t%his t Refer to § 28] Seller: ACD olgA�p limited liability company I IIIIIII 11111111111111111111111 Ill 111111111111111 SILVIA DAVIS PITKIN COUNTY CO R 0.00 508169 Date: Page: 10 of 18 Address: 03/23/2005 10:349 D 0.00 Phone No.: Fax No.: 28. COUNTER; REJECTION. This offer is ❑ Countered ❑ Rejected. Initials only of party (Buyer or Seller) who countered or rejected offer END OF CONTRACT Note: Closing Instructions and Earnest Money Receipt should be signed on or before Title Deadline (§ 2c). BROKER ACKNOWLEDGMENTS. The undersigned Brokers acknowledge receipt of the Earnest Money deposit specified in § 4. The Selling Broker is a ❑ Buyer's Agent ® Transaction -Broker in this transaction. The Listing Broker is a ® Seller's Agent ❑ Transaction -Broker in this transaction. BROKERS' COMPENSATION DISCLOSURE. Selling Brokerage Firm's compensation or commission is to be paid by ® Listing Brokerage Firm ❑ Buyer ❑ Other (To be completed by Listing Broker) Listing Brokerage Firm's compensation or commission is to be paid by: ® Seller ❑ Buyer ❑ Other Selling Brokerage Firm's Name: Coldwell Banker The Asnen Brokers, Ltd. Date: February .2005 Broker Carrie Wells Address: 720 East Durant Aspen CO 81611 Phone No.: 925-6750 Fax No.: 920-4378 Listing Brokerage Firm's Name: Coldwell Banker The Aspen Brokers, Ltd. Date: lebruary .2005 Broker Carrie Wells No. CBS3-7-04. CONTRACT TO BUY AND SELL REAL ESTATE Page 8 of 9 (VACANT LAND — FARM — RANCH) Natelal Address: 720 East Durant Asnen, CO 81611 Phone No.: 925-6750 Fax No.: 920-4378 3340312_2.DOC 508169 I IIIIII VIII IIIIII VIII IIII VIII (IIIIII III IIIIII III IIII 9 03/23/200010:34f 0 / 0 No. CBS3-7-04. CONTRACT TO BUY AND SELL REAL ESTATE Page 9 of 9 (VACANT LAND — FARM — RANCED Initial ADDENDUM NO. 1 TO VACANT LAND/FARM AND RANCH CONTRACT TO BUY AND SELL REAL ESTATE BETWEEN BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AS BUYER AND ACDS, LLC AS SELLER, DATED FEBRUARY 16, 2005 This Addendum is made a part of that certain Contract to Buy and Sell Real Estate (Vacant Land) dated February 16, 2005 ("Contract") between Pitkin County Board of County Commissioners as buyer ("Buyer") and ACDS, LLC as seller ("Seller"), with respect to property known as the Cozy Point South, 129 acres, more or less, in the County of Pitkin, State of Colorado ("Property"). In the event of any conflict or inconsistency between the provisions of this Addendum and the Contract, the provisions of this Addendum shall govern and control. 1. Improvement Survey. On or before the Survey Deadline, Seller shall deliver to Buyer, at Seller's expense, a current Improvement Survey of the Property certified by a licensed Colorado surveyor for the express benefit of Seller, Buyer and the title company, depicting all property corners, surface improvements, easements and rights of way, driveways, parking areas, walls, fences, encroachments on or off the Property, above -ground utility lines and utility installations, and restrictions of record. The Improvement Survey shall be in form and content sufficient to cause the title company to issue an endorsement to its title commitment agreeing to delete from Schedule B (Section 2) of its to -be -issued title policy standard printed exception Nos. 1, 2, and 3 at no cost to Buyer. In the event the Improvement Survey discloses matters which in the Buyer's opinion constitute defects in the merchantability of Seller's title, Buyer must give Seller written notice of such unsatisfactory title condition(s) no later than the Title Objection Deadline. If Buyer in fact gives such notice to Seller in a timely manner, the provisions of Paragraph 7d) of the Contract shall apply thereto. If no such notice is timely given, Buyer shall be deemed to have waived any objections to matters shown on the Improvement Survey. 2. Standard Schedule B-2 Exceptions. Seller shall furnish to the Buyer at Seller's expense an endorsement to delete standard exceptions 1-6 on Schedule B-2 of the Title Insurance Commitment. 3. Bareain Sale; Charitable Contribution. Buyer and Seller acknowledge that the current fair market value of the Property being conveyed to Buyer under this Contract may exceed Buyer's purchase price and therefore Seller wishes to effectuate the transaction contemplated by this Contract as a bargain sale, so called (part sale, part charitable contribution) as defined at Internal Revenue Code Section 1011(b), as amended, and the regulations thereunder. In this regard, after closing at Seller's request and at no cost to Buyer, Buyer agrees to process Seller's federal Form 8283. 508169 I IIIIII VIII IIIIII VIII IIII VIII (IIIIII III IIIIII III IIII Page: 03/232000108349 0 / 0 1 \v 4. Conservation Easement. The Seller and Buyer acknowledge that Colorado law provides for a Transferable Tax Credit as an inducement for private owners to place conservation easements on important open space, and that if the Buyer is willing to accept the Property burdened by a qualifying conservation easement, that the Buyer may be able to realize some of the purchase price through that mechanism. Buyer and Seller agree to review this possibility in good faith. If Buyer and Seller mutually agree on the terms of a proposed conservation easement and on the value of the tax credit associated therewith, then at Seller's sole election, the property may be burdened with a conservation easement before closing, for the benefit of Aspen Valley Land Trust, in which event the purchase price will be reduced by the amount of the related tax credit. If for any reason this transferable tax credit concept is not used in the transaction, it shall have no effect on the validity of this Contract or on the obligations of Buyer and Seller hereunder. 5. Environmental Assessment. Seller acknowledges that Buyer requires that an environmental assessment be completed, at Buyer's expense, prior to the close of the Inspection Objection Deadline provided in Paragraph 2c. Buyer will use best faith efforts to secure the environmental assessment by this date. If Buyer has not terminated the Contract by the Inspection Objection Deadline, Buyer shall be deemed to have accepted the environmental condition of the Property. 6. County Approval. Notwithstanding the signature hereto by the 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 by March 31, 2005, Seller or Buyer may, upon written notice to the other, terminate this Contract by written notice given on or before April 3, 2005, whereupon Buyer shall be entitled to a prompt return of all Earnest Money paid. If such termination notice is not timely given, this County approval condition shall be deemed waived. 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. 7. Real Estate Brokerage. Except as set forth in the Broker's Compensation disclosure, 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 such party or with the knowledge or consent of such party, then such party shall defend, hold harmless and indemnify the other party against such claims and all costs and expenses; (including reasonable attorneys' fees and court costs), liabilities and judgments resulting therefrom. 8. Interest on Earnest Money. Any and all monies paid by Buyer prior to closing shall be placed in an insured, interest bearing money market -type account with a local commercial bank, with all interest thereon to accrue for the benefit of Buyer. Whether or not Buyer shall ever be in default under this Contract resulting in a 2 \3 forfeiture of its earnest money, Buyer shall nevertheless be entitled to retain, as its sole and separate property, all interest earned on said earnest money. 9. Notices. Any notice, demand or document which either party is required or may desire to give, deliver or make to the other party shall be in writing and shall be personally delivered or given by facsimile transmission or given by United States certified mail, return receipt requested, addressed as follows: Any notice, demand or document so given, delivered or made by United States mail shall be deemed to have been given three (3) days after the same is deposited in the United States mail as certified matter, addressed as above provided, with postage thereon fully prepaid. Notice by facsimile transmission shall be deemed given upon receipt of a confirmation by sender and notice by personal delivery shall be deemed given when received. 10. Miscellaneous. a. Saturday, Sunday or Holiday. If any time period referred to in this Contract shall end on a Saturday, Sunday or legal holiday, such time period shall automatically be extended to the first regular business day thereafter. \a To Buyer: Pitkin County, Colorado m Attn: Dale Will, Open Space Director m 530 East Main Street, Third Floor 0) o m m Aspen, CO 81611 * m m Facsimile No. (970) 920-5198 T N O CO 0�N in a m With copy to: John Ely, County Attorney m Pitkin County, Colorado m 530 East Main Street Aspen, CO 81611 Facsimile No. (970) 920-5198 �o Seller: ACDS, LLC .�c/o Carrie Wells ie�o Coldwell Banker The Aspen Brokers, Ltd. �V z 720 East Durant Aspen, CO 81611 �N Facsimile No. (970) 920-4378 a �a With copy to: Arthur C. Daily, Esq. O Holland & Hart LLP " 600 East Main Street, Suite 104 Aspen, CO 81611 Facsimile No. (970) 925-9378 Any notice, demand or document so given, delivered or made by United States mail shall be deemed to have been given three (3) days after the same is deposited in the United States mail as certified matter, addressed as above provided, with postage thereon fully prepaid. Notice by facsimile transmission shall be deemed given upon receipt of a confirmation by sender and notice by personal delivery shall be deemed given when received. 10. Miscellaneous. a. Saturday, Sunday or Holiday. If any time period referred to in this Contract shall end on a Saturday, Sunday or legal holiday, such time period shall automatically be extended to the first regular business day thereafter. \a b. Controlling Law. This Contract shall be construed in accordance with and governed by the laws of the State of Colorado. The parties hereto agree and intend that the proper and exclusive forum for any litigation of any disputes or controversies arising out of or related to this Contract shall be the District Court for Pitkin County, Colorado. For purposes of any litigation, the parties consent to the chosen forum for purposes of jurisdiction and venue. C. Counterparts. This Contract (or any amendments, modifications or extension hereof) may be executed in several counterparts and, after execution and as executed, shall constitute an agreement binding on all of the parties, notwithstanding that all of the parties are not signatories to the original or the same counterpart. d. Further Assurances. Each of the parties agrees to execute, acknowledge, deliver, file and record, or cause to be executed, acknowledged, delivered, filed and recorded such further instruments and documents and such certificates, and to do all things and acts as the other party may reasonably require in order to carry out the intentions of this Contract and the transaction contemplated hereby. e. Survival. All of the warranties and representations contained in this Contract of an ongoing nature or intended to survive shall survive the actual closing of the transaction contemplated thereby. f. Construction. No provision of this contract shall be construed against or interpreted to the disadvantage of any party by reason of such party having or being deemed to have requested, drafted, required or structured such provision. It is the intention of the parties that the party who employed the scrivener to prepare this Contract not be prejudiced by virtue of such act, nor shall this Contract be construed against such party by virtue of its actions in retaining the scrivener. g. Attorneys' Fees. In the event of any action for breach of, to enforce the provisions of, or otherwise involving this Contract, the court in such action shall award a reasonable sum as attorneys' fees to the party who, in light of the issues litigated and the court's decision on those issues, was the prevailing party in the action. If a party voluntarily dismisses an action, a reasonable sum as attorneys' fees shall be awarded to the other party. h. Assignment to the City of Aspen. Notwithstanding the provisions of Contract Paragraph 17, Buyer may assign this Contract, in whole or part, to the City II II III III IIII I I I II II II II Page: 15 of 18 508169 03/23/2005 10:34P SILVIR DAVIS PITKIN COUNTY CO R 0.00 D 0.00 0 J� of Aspen, provided the City assumes Buyer's rights and obligations hereunder (or a proportionate share thereof). Buyer: Board of County Com ' sinners of PitkinI , C r By: Dae Wr, , Director Open Space Department Date: February , Seller: ACDS, LLC, a liability comps 3340419_2.DOC By: i Manager Date: February 4-1 2005 508169 IEI VIII 1111VIII 11VIIIIIIIIII III IIIIII IIIIIII003923 S D00001034f SILVIA DAVIS R r EXHIBIT "A" LEGAL DESCRIPTION 9 Southerly of Brush Creek Road Township 9 South, Range 85 Wast of the 6th P. A parcel of toric situated in Sections 21 and Z8, TownsM. being that portion o Cozy Point Ranch as described in Book 680 at Pae 5 of the Pitkin County Records lying as described as follows: Beginning at the in reaction of the Southerly fine of Brush Creek County Road and the Westerly line of Colorado State Highway No 82, fine of Brush Creek Road as described in Bock 564 at Page 684 and Book 589 thence 567 of the tkin Co � Southerly at Page 657 Of the N 76°160" W 114. 30feet S 73032'00" W 144.63 feet 299.98 along a curve to the Left whose radius is 925.70 feet (chord bears S 64'14'59" W 298. 67) S 35'02'01" E 15.00 i"t; 68.61 along a curve to the leRwhose radius is 910.70 feet (chord bears S 49002'W 188.27) 1 1, a.76 along a curve to the right whose radius is 692.50 feet (chord bears S 51059M 213.91 feet; 358.98 along a curve to the left whose radius is 595.32 feet (chord bears S 43°35'30" W 353.57 feet); S 26"16' W 240.59 feet 5 31 '24'W 350.90 feet; S 22'44' W 244.30 feet S 34142'W 165.76 fag S 40'56' W 315.83 feet the Northdescribedilne of that parcel of land described in Book 374 at Page 536 of the Pitkin County 5 360DO' W 428.06 feet to Records; abn9 said parcel described in Book 374 at Page 536: thence Easterly and Southerly N a1°14'52" E 998.29 feet; S 07°06'07" W 955.49 feet of Section 28: S 16°06'00' E 1,802. 969e72 feet to the Southeast Cot to the South line of the mer i the14 4NWY.SEV. f Section 28; thence N 8704807" E 114 SE114 ofi Sect on 26 also being the Southeast thence N 00'5505' W 1.346.48 feet to the Northeast corner of the NW corner of Govenment Lot 10, Section 28; of thence N thence 5 88°95'25" W 146 40 eel m the S ut tolthe ortheast thweSt corner. of Government Lot 8 or of Government Lot ff Section Section 28 28 Secton 28; thence North 712.45 feet to the Northwest t-0mer Colorado State Highway No. 82 as describovernment Lot 8 of ed In Book 157 at Page thence East 44.47 feet to tine Westerly Ngb e5 of 537 of the Pitirin County Records; thence Northerly along the Westerly ri9rn"of way fine of Colorado State Highway No. 82: non tangential curve to the right whose radius is 570.90 Feet (chord bears N 15052'33' W 259.09 feet); 2feat along o N 02'45'37" W 257.50 feel; 802.60 feet along a curve o ft f lnbeginning. IS 2815.00 feet (chord bears N 07052'30" W 501.93 feet); N 14°53'18' W 22233 feet to theleft EXCEPTING THEREFROM that property as set forth in Order recorded August 26, 1999 as Reception No. A34900. I 508169 IIIIIII VIIIIIIIIIIIIIIIIIIVIIIIIIIIIIIIIIIIIIIIIIIIII 9 0 03/23//200 4f 0010:3 SILVIR DAVIS PITKIN COUNTY CO R i nett �2.tit Wi�t�tis�a ILVI co 2 of 3 R 15.05 0 230,50 N ih.OR �ITKZN cam 02-07-05 17:44 TO:COLDWELL BANKER ASPEN FROM: P15 11 Exhibit B Aspen Country Day School Water Rights Charts February 16, 2005 ASPEN COUNTRY DAY SCHOOL PENDING WATER RIGHTS CLAIMS Case Ditch Priority Case Amount Amount ACD Pond No. 1 Storage Right 3.45 af, Pending Decreed Owned Jote Smith 29 C.A. 132 2.0 cfs 0.72 2.05 af, Jote Smith 96 C.A. 132 0.70 cfs 0.25 r° a Cozy Point 47 C.A. 132 1.5 cfs 0.19 a Cozy Point 443 C.A. 3723 1.5 cfs 0.24 Cozy Point Ditch, Upper 251 C.A. 2689 0.46 cfs 0.20 �o A U Weise Pending o d 462 C.A. 3723 1.3 cfs 0.62 U Underground 0.22 cfs, Pending jWeise 92CW07 48% ACDS Well Field No. Point 88CW479 2.0 of 2.0 of Appropriative 193CW03 Ponds Nos. 1-3; Jote- Right of Exchange, ASPEN COUNTRY DAY SCHOOL PENDING WATER RIGHTS CLAIMS Case Structure Claim Amount Status O1CW299 ACD Pond No. 1 Storage Right 3.45 af, Pending conditional O1CW299 ACD Pond No. 2 Storage Right 2.05 af, Pending conditional 01CW299 ACD Pond No. 3 Storage Right 5.9 af, Pending conditional OICW299 Cozy Point Ditch, Direct Flow Water` ACD Enlargement Right 2.0 cfs, Pending conditional 01CW300 ACD Well Field No. 1 Underground 0.22 cfs, Pending conditional O1CW301 ACDS Well Field No. Change, Pending 1 (3 wells); ACDS Appropriative Ponds Nos. 1-3; Jote- Right of Exchange, Smith Ditch, Cozy Plan of Point Ditch, Upper Augmentation Weise Ditch, Ruedi Reservoir, Green Mountain Reservoir, Troy and Edith Ditch, Favre Domestic Pipeline -Spring No. 1, Favre Domestic Pipeline Spring No. 2 Basalt Water Conservancy District Allotment Contract No. 406 (2.3 acre feet per year of storage or other augmented water controlled by District), dated 10/8/02.