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CONTRACT FOR BARGAIN SALE OF
CONSERVA TION EASEMENT
(Crystal Island Ranch - Pitkin County)
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THIS ~~NTRACT F?R BA~G!!N SALE OF CqpSERVA TION EASEMENT (the
"Agreement) IS entered mto thIS r'JIay of JMuary, 2005, by and between RICHARD
JELINEK, DEBBIE JELINEK, LLC, and CIR Ranch 1-5, LLC, inclusive, Colorado
Limitied Liability Companies (facsimile number: 970- ) (collectively the "Seller")
and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO (facsimile number: 970-920-5198) (the "Purchaser"). The following
exhibits are attached to this Agreement:
Exhibit A -
Exhibit B -
Exhibit C -
Exhibit D -
Exhibit E -
Exhibit F -
Exhibit G -
Description of Property
Map of Property
Description of Exchange Parcel
Map of Exchange Parcel
Certificate of Non-Foreign Status
Map ofTCF Property
Map of A VLT Property
RECITALS:
A. Richard Jelinek is the principal owner of Crystal Island Ranch ("CIR"), manager
and sole member ofCIR Ranches 1-5, LLC and desires to convey a conservation
easement on 535 acres of the CIR, and Debbie Jelinek is the owner of an
additional separate 17 acres ofCIR known as "Duck Meadows," and she desires
to place a conservation easement thereon, with the result being a 552 acre
conservation easement ("Conservation Easement"), which 552 acres are
described on the attached Exhibit "A", and shown on the attached Exhibit "B"
(the "Land");
B. The Aspen Valley Land Trust ("A VL T") holds conservation easements on an
additional separate 434 acres of the CIR ("A VL T property") and both CIR and
A VL T are willing to allow A VL T to convey a part interest therein to Purchaser.
C. The Conservation Fund .("TCF') is the' owner of approximately 90 acres adjacent
CIR which Seller desires to acquire in fee simple subject to a conservation
easement that prohibits all development but allows continued agricultural and
recreational use, including trails and access easements to accomplish such
recreational use; such conservation easement will be jointly held by the Purchaser
and A VLT, and subject to a public trail easement held by the Purchaser that runs
from the northern to the southern boundary along the Crystal River. (The fee title
ofthe 90 acres, as subject to the conservation and trail easements noted herein,
shall henceforth be referred to as the "TCF property.")
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D. Richard and Debbie Jelinek have agreed to exchange the Conservation Easement
for $1,000,000 in cash plus the TCF Property (restricted by the conservation
easement and trail easement, as noted above). The $1,000,000 and TCF property,
taken together, shall be referred to hereinafter as "The Consideration."
E. Purchaser agrees that the Seller may claim a bargain sale charitable contribution
for the amount by which the fair market value of the Conservation Easement
exceeds The Consideration, and Purchaser agrees to cooperate with the Seller in
the processing of related tax forms.
F. The result of all the transactions contemplated under this and other agreements, as
further described in the contingencies below, will be that Purchaser and A VLT
will jointly hold conservation easements on the CIR that encompass
approximately 1076 acres.
AGREEMENT:
1. 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 ofland containing 552 acres more or less, located in Pitkin County
Colorado, as described on Exhibit "A" and shown on Exhibit "B", attached
hereto, including, without limitation, encumbering as well any and all surface and
subsurface water, well, spring, irrigation, subirrigation or ditch rights of any type,
including all shares or certificates of any type in ditch or water delivery companies
or associations, incidents and appurtenances belonging thereto (collectively, with
the "Land", referred to as the "Property"). The final terms of the Conservation
Easement (the "Conservation Easement") shall be agreed upon bv the parties
during the Inspection Period. Seller intends to make a donation to Purchaser and
the Aspen Valley Land Trust, organizations described in Section 50l(c)(3) ofthe
Internal Revenue Code, of the amount, if any, by which the fair market value of
the Conservation Easement exceeds The Consideration received.
2. PURCHASE PRICE. The Consideration for the Conservation Easement shall be
(a) One Million and no/lOOs Dollars ($1,000,000.00) in cash, and (b) the
conveyance ofthe TCF Property to Seller, subject to the conservation and trail
easements (the "Purchase Price"). Purchaser acknowledges that it is Seller's
intention to effectuate a "bargain sale" ofthe Conservation Easement, i.e., a sale
to a charitable organization at a price below fair market value wherein the
difference is considered a charitable contribution under applicable sections of the
Internal Revenue Code. Seller acknowledges that the substantiation of a
charitable contribution deduction rests exclusively with Seller except for
Purchaser's execution of Internal Revenue Service Form 8283. The $1,000,000
cash portion of the Consideration shall be paid by Purchaser to Seller as follows:
2.1. Closing funds. At closing, the Purchase Price in cash, certified funds, or
by wire transfer of federal or other immediately available funds.
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3. CLOSING DATE. The closing of the transaction contemplated hereunder (the
"Closing") shall be held at the office of Pitkin County Title Company, Inc., on or
before fifteen (15) days after expiration of the Inspection Period, as defined in
paragraph 5, herein (the "Closing Date").
4. 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 which to review the documents, and to make the
inspections described below. The period of inspection (the "Inspection Period"),
unless extended as provided in paragraph 5.1, shall terminate on the earlier of: (i)
Receipt by Seller of notice from Purchaser that the Property is suitable for
purchase; or (ii) sixty (60) days after the Effective Date of this Contract, as
defined herein.
4.1. Documents. Not later than fifteen (15) days after the Effective Date,
Seller shall provide, at Seller's expense, to Purchaser: a Title Commitment
issued by Pitkin County Title, Inc., together with legible copies ofthe deed
or deeds by which the Seller holds title to the Property, legible copies of
any instruments listed in the legal description for the 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 oftitle insurance,
including "gap" and mechanic's lien coverage, insuring title and access to
the Conservation Easement as ofthe date of Closing in the amount ofthe
Purchase Price; (b) a Certificate of Taxes Due evidencing that all taxes
owing on the Property have been paid in full; (c) a copy ofthe current 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; and (d) to the extent in Seller's possession, copies of any surveys
or maps of the Land, plans relating to the building improvements, and
studies and reports regarding the soils or water on or under the Land.
4.2. Due Diligence: Inspection; Right of Entrv. Purchaser shall have the right
to enter upon the Property at reasonable times 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 all 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.
4.3. Conditions Precedent to Buver's Obligations. Prior to the expiration ofthe
Inspection Period the Purchaser shall be satisfied, in its sole discretion, as
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to the condition of title, the condition of the Property, the suitability ofthe
Property for encumbrance by the Conservation Easement.
5. 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 Conservation Easement for purchase.
Should, for any reason, either party not be satisfied that the Conservation
Easement is acceptable, such party shall notify the other party in writing on or
before the expiration ofthe Inspection Period of its dissatisfaction, at which time
this Agreement shall be terminated and of no further force and effect (except that
the indemnification described in paragraph 5.2 shall not be terminated) 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 ofthe Inspection Period and if Purchaser
elects to waive the conditions precedent to its performance and to terminate the
Inspection Period, this Agreement will remain 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 ofthe 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.
6. 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, free 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.
7. CONDITION OF THE PROPERTY, REPRESENTATIONS. As of the date
of this Agreement and the date of Closing, Seller warrants and represents the
following:
7.1.
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.
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7.2. 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.
7.3. 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.
7.4. 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.
There are no rights of possession to the Property or options or rights of
first refusal in third parties, nor rights of access across the Property by
third parties.
7.5. The Property, to the best of Seller's knowledge, is not in violation of any
federal, state or local law, ordinance or regulation relating to
environmental conditions on, under or about the Property, including, but
not limited to, soil and groundwater conditions. 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, transferring, processing or transporting Hazardous Materials.
For the purposes hereof, "Hazardous Materials" does not mean any typical
agricultural chemicals such as herbicides and pesticides utilized on
properties of this type in Pitkin County, 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, petroleum, 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 "hazardous
substances", "hazardous material" or "toxic 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 sea., 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 liability 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
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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.
7.6. 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.
7.7. 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.
8. CONDITION OF PROPERTY, LIABILITY. Seller has made certain
representations and warranties concerning the Property and its condition. During
the Inspection Period the Purchaser has the right to inspect the condition ofthe
Property. However, without regard to any inspections made by the Purchaser,
nothing in this contract shall relieve either party of liability for misrepresentation,
breach of warranty or failure to reasonably inspect the condition of the Property.
9. 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 ofthe Conservation Easement.
10. 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 ofthe
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. In the event that Seller shall use or consent to such use ofthe
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 with a price adjustment for the change in circumstances.
11. 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.
12. DEFAULT.
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12.1. 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, (b) Seller shall have fully performed or tendered
performance of its obligations under this Agreement, and (c) Purchaser
shall be unable or shall fail to perform its obligations by the Closing Date,
this contract shall become null and void and Seller shall be released from
all obligations hereunder as their sole remedy.
12.2. 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
terminate this Agreement and be released from its obligations hereunder,
as its sole remedy.
13. 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 possible time offered by such
courier, directed as follows:
Ifto Seller:
at the address shown above
with a copy to:
Leonard M. Oates, Esq.
Oates, Knezevich & Gardenswartz, P.C.
533 E. Hopkins Ave.
Aspen, CO 81611
If to Purchaser:
At the address or fax number shown above
14. MISCELLANEOUS.
14.1. 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 from 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.
14.2. Certificate. At or prior to Closing, Seller shall furnish to Purchaser a duly
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executed Certificate of Non-Foreign Status in the form attached to this
Agreement as Exhibit "E". 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.
14.3. 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.
(?)
14.4. Binding Effect. The terms and conditions ofthis Agreement shall be
binding upon and shall inure to the benefit ofthe parties' heirs, executors,
administrators, successors and assigns.
14.5. Exhibits. The exhibits hereto constitute an integral part of this Agreement
and are hereby incorporated herein.
14.6. Counterparts; Facsimile Signatures. This Agreement may be executed in
counterparts, all of which 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 or 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.
14.7. Severability. If any provision of this Agreement shall be held invalid, the
other provisions hereof shall not be affected thereby and shall remain in
full force and effect.
14.8. Entire Agreement. This Agreement represents the entire agreement of the
parties and may not be amended except by a writing signed by each party
thereto.
14.9. 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 all related documents.
14.10. 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.
14.11. 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,
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.
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14.12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
14.13. Offer. When signed and delivered 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.
14.14. Labor and Material. Seller shall deliver to Purchaser at settlement an
affidavit, on a form acceptable to Purchaser's lender, if applicable, 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.
15. SATURDAYS, SUNDAYS, HOLIDAYS. Ifthe 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.
16. CONTINGENCY REGARDING TCF. It is contemplated that both the Seller
and the Purchaser will enter into an agreement or separate agreements with TCF
to effectuate, respectively, the Seller's acquisition of the TCF property and the
Purchaser's acquisition of conservation and trail easements which burden this
same land, which is further depicted in Exhibit "F". (Purchaser plans on
establishing two trails connecting CIR to the river trail). If either party is unable
to reach an acceptable agreement with TCF during the Inspection Period, this
Agreement will be rendered null and void, unless the Inspection Period is
extended by mutual consent of the parties hereto. Furthermore, the Seller's
obligation to transfer the Conservation Easement to Purchaser, and the
Purchaser's obligation to make any cash payment, are specifically contingent upon
the simultaneous acquisition of respective interests from TCF as noted herein.
17. PURCHASER'S CONTINGENCY; FORMAL COUNTY APPROVAL. The
obligations ofthe Purchaser hereunder are specifically contingent upon the valid
final adoption by of an Ordinance authorizing the purchase of the Property by the
Board of County Commissioners of under terms substantially the same as set forth
in this Contract.
18. PURCHASER'S ADDITIONAL CONTINGENCY; A VLT TRANSFER OF
JOINT INTEREST. It is contemplated that the Purchaser will enter into a
separate agreement with A VL T to obtain a joint interest in the pre-existing
conservation easements that burden approximately 434 acres of the CIR, as further
depicted in Exhibit "G", which agreement shall also provide that the
conservation easements obtained by Purchaser from Seller and TCF will also be
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jointly held by Purchaser and A VLT. Purchaser's obligation to consummate the
transaction described by this Agreement is specifically contingent upon the
simultaneous acquisition of joint interests in the A VL T property as noted herein.
19. APPRAISAL CONTINGENCY. Purchaser shall have the sole option and
election to terminate this Agreement ifthe value of The Consideration exceeds the
appraised value ofthe Conservation Easement as determined by an appraisal
prepared by Hunsperger & Weston, Ltd. and approved by the Purchaser.
Purchaser agrees to pay 25% of the appraisal fee, up to a maximum of$6,250.
The Seller will pay the balance of the appraisal fee. The Agreement may be
terminated by Purchaser giving Seller written notice of termination and a copy of
the appraisal, on or before the Inspection Deadline. If Seller does not receive such
written notice of termination on or before the Inspection Deadline, Purchaser
waives any right to terminate under this subsection.
20. 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 this Agreement as ofthe
date first above written.
SELLER
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Richard C. Jelinek i/
Date:
3/3/0':,'--
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Crystal Island Ranch, 1-5, LLC.
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Richard Jelinek, Manag. d Sole Member
Date:
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By
Debbie F. Jelinek, LLC
Date:
PURCHASER:
PITKIN COUNTY, COLORADO, acting by and through its Board of County
Commts~ioners
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By: ; 'll:1:L . /); ,- vv1i~.u I
Patricia K Clapper, ,hair, Boartl 'of County Commissioners
Date: tiy-(I- nc;-
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EXHIBIT "A" - DESCRIPTION OF PROPERTY
A conservation easement over and across the following:
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EXHIBIT "B" - MAP OF PROPERTY
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EXHIBIT "E"
AFFIDAVIT OF NON-FOREIGN STATUS
Section 1445 and Section 6045 of the Internal Revenue Code provide that the Transferee ofa real
property interest must withhold tax if the Transferor is a foreign person and must provide certain
sales related information to the Intemal Revenue Service. To inform Name of Purchaser here
(the "Transferee") that withholding of tax is not required upon its disposition of a U.S. real
property interest, more particularly described in the Contract for Sale of Real Estate annexed
hereto Name of Seller here (the "Transferor"), hereby certifies that:
1. Transferor is not a non-resident alien for purposes of U.S. income taxation.
2. Transferor's tax identification number is:
3. Transferor's principal business address is:
/
4. The gross sales price of this transfer is: $
5. Transferor understands that this affidavit and information contained herein will be disclosed
to the Internal Revenue Service by the Transferee and that any false statement made herein
by Transferor could be punished by fine, imprisonment, or both.
Under penalties of perjury, Transferor declares that Transferor has examined this certification
and, to the best of Transferor's knowledge and belief, it is true, correct and complete.
TRANSFEROR:
Print Name here
Date:
STATE OF
COUNTY OF
)
) ss:
)
SUBSCRIBED, sworn to and acknowledged before me by
who acknowledged the foregoing AFFIDAVIT OF NON-FOREIGN STATUS on this
day of ,2005.
Notary Public
My commission expires:
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