HomeMy WebLinkAboutbocc.ord.042.2000 AN ORDINANCE OF
THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
APPROVING THE ACQUISITION OF
CERTAIN PROPERTY
ON SMUGGLER MOUNTAIN
BY GIFT AND BY PURCHASE
AND AUTHORIZING BOND SALES
FOR SPECIFIED OPEN SPACE ACQUISITIONS
ORDINANCE # 94Z'
RECITALS
1. The B & M Lode Mining Claim, being a part of U.S. Mineral Survey No.
5304 located in Section 7, T 1 OS, R 84 W of the 6`h P.M. (the `B & M Claim"), and Little
Maud Mining Claim, adjacent to the B& M Claim and also part of U.S. Mineral Survey
No. 5304 located in Section 7, T IOS, R 84 W of the 6`h P.M. (the "Little Maud Claim")
are approximately twenty acres of land traversed by Smuggler Mountain Road, a Pitkin
County Road, and are the location of the observation deck, a popular destination for
hikers, bikers and other recreational users traveling up Smuggler Mountain Road from
the Aspen area. Preservation of the B&M Claim and Little Maud Claim as currently
undeveloped would provide significant public benefit to the citizens of Pitkin County as
well as to countless thousands of visitors to the area and the site.
2. The owner of a substantial portion of the B&M Claim, Harley A. Baldwin,
II ("Baldwin"), has offered to convey to the Board of County Commissioners of Pitkin
County, Colorado (the "County"), on the terms and conditions recited herein and in the
Exhibit A attached hereto, an option to acquire the B&M Claim, an option which the
County desires to accept. The B&M Claim is Parcel No. 2737071000014 in the records
of the Pitkin County Assessor.
3. Baldwin has also offered to convey to the County the Little Maud Mining
Claim under the terms and conditions recited herein and in the Exhibits attached hereto.
The Little Maud Claim is Parcel No. 273707100045 in the records of the Pitkin County
Assessor. Preservation of the Little Maud Claim as currently undeveloped would provide
significant public benefit to the citizens of Pitkin County and to visitors to the area and
the site.
4. Smuggler Mountain LLC, a Colorado limited liability company, will be
established by Baldwin for purposes of facilitating the transactions described herein,
specifically, the conveyance of the B&M Claim.
6. Discussions with the County about the transfers and the substantial gifts
contemplated herein began well before the beginning of 1999.
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7. Because of the high recreation value of these properties to the public, both
in terms of assuring. continued public use of the observation deck and Smuggler
Mountain Road, and in furtherance of the County's efforts to preserve the balance of the
property from future development and to preserve the natural features of Smuggler
Mountain, the Open Space and Trails Board of Trustees on July 20, 2000, by Resolution
00-03, has recommended that the County spend $ 650,000 of Open Space and Trails
funds for the acquisition of a 100 percent interest in the surface of the B & M Claim and
the Little Maud Claim.
8. By acceptance of these conveyances on the terms and conditions recited
herein and in the Exhibits hereto, the County will acquire Baldwin's interest in the Little
Maud Claim and will have the right to acquire all the surface interests in the B & M
Claim.
9. The purchase price of the Little Maud Claim by the County is anticipated
to be for less than its fair market value, and Baldwin intends to make a charitable
contribution to the County of any such foregone value; and
10. The option price for the County to acquire the B&M parcel is anticipated
to be for less than its fair market value, and Smuggler Mountain LLC intends to make a
charitable contribution to the County of any such foregone value.
11. The County finds that the conveyances described herein, on the terms and
conditions recited herein and in the Exhibits attached hereto, are in the public interest and
such conveyances are within the power of the County to permit within the purpose of
C.R.S. §30-28-101, et seq.
12. The County finds that all residential building rights that may be deemed to
exist on Baldwin's portion of the B&M Claim and on the Little Maud Claim shall be
deemed to exist on the Little Maud Claim as of the date of the closing on the Little Maud
Claim.
13. This transaction predates the moratorium imposed by Ordinance 2000-
002B and is exempt from the moratorium of Ordinance 2000-002B.
14. The Open Space and Trails Program was reauthorized last November for
an additional 10 years with an increase in the available bonding authority. In endorsing
the reauthorization, the County's Financial Advisory Board recommended that bonds be
used to maximize the buying power of the program during the initial years of the next 10-
year authorization.
15. The acquisition and lease/option to acquire these mining claims were not
anticipated during the preparation of the year 2000 budget so a supplemental budget
appropriation is required for these transactions.
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16. Upon due and proper notice, published in accordance with the law, said
supplemental budget will be open for inspection by the public at a designated place; a
public hearing was held on August 23, 2000, and interested taxpayers were given an
opportunity to file or register any objections to said supplemental budget.
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 Little Maud Claim from
Baldwin on the terms and conditions substantially as set forth in Exhibit B, attached
hereto.
2. The Board approves the acquisition of a lease and option to acquire the
B&M parcel from Smuggler Mountain LLC. on the terms and conditions substantially as
set forth in Exhibit A, attached hereto.
3. The Chair is authorized to execute the contracts in substantially the form
attached as Exhibit B for the acquisition of the Little Maud Claim, and in substantially
the form attached as Exhibit A, a lease and option to acquire the B&M Claim from
Smuggler Mountain LLC, following approval of the form of those documents by the
County Attorney's office and Open Space Director, and is authorized to execute such
other documents as may be necessary to finalize this transaction.
4. The recommended acquisition is conditioned on the County's ability to
rescind the contracts within 55 days if the OSTB and BOCC are not satisfied that the
surface of the Claims is adequately protected from potential disturbance by mineral
exploration or extraction,
5. The Board hereby declares its official intent and ratifies the official intent
previously declared by the Open Space and Trails Board to reimburse current
expenditures from a future issuance of Pitkin County general obligation bonds. The
current expenditures to be reimbursed include the purchase price, lease, option and other
acquisition costs for the Little Maud Claim and B & M parcel and for the previously
authorized Emma Open Space, Rikker/Walden properties, and D&RGW/RFRHA trail
project. The maximum amount of bonds expected to be issued for these projects is
$4,010,000.
6. Adjustments are made to the year 2000 budget as follows:
OPEN SPACE AND TRAILS FUND
Previous Revised
Budget This Change Proj Budget
B & M and Little Maud Mining Claims
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Acquisition of the Little Maud Claim and a lease and option to acquire the B & M parcel,
both found on Smuggler Mountain, will be reimbursed from a future issuance of county
general obligation bonds:
Bond proceeds (revenue) 0 675,000 675,000
Bond issuance cost expenditures 0 20,000 20,000
Little Maud acquisition and closing costs 0 555,000 555,000
B&M Lease/Option expenditures 0 100,000 100,000
675,000
Further, acquisition costs for the Emma Open Space, Rikker/Walden Properties, and
D&RGW/RFRHA trail project, as previously authorized by this Board, will also be
reimbursed from a future issuance of county general obligation bonds:
Emma Open Space bond proceed revenue 0 1,000,000 1,000,000
Rikker/Walden Parcels bond proceed revenue 0 650,000 650,000
D&RGW/RFRHA trail bond proceed revenue 0 1,600,000 1,600,000
Bond Issuance bond proceed revenue 0 85,000 85,000
Bond Issuance expenditures 0 85,000 85,000
(3,250,000)
OPEN SPACE AND TRAILS FUND TOTAL
NET REVENUE (EXPENDITURES) CHANGE 3,250,000
INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON
THE 9TH DAY OF AUGUST 2000.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE WEEKEND
EDITION OF THE ASPEN TIMES ON THE 2ND DAY OF SEPTEMBER 2000.
APPROVED AT SECOND READING AND PUBLIC HEARING ON THE
13TH DAY OF SEPTEMBER, 2000.
PUBLISHED AFTER ADOPTION IN THE W EKQ!I) EDITION OF THE
ASPEN TIMES ON THE �/ aJ DAY OF 2000.
ATTEST: BOARD OF COUNTY
COMMISSIONERS
OF PITKIN COUNTY, COLORADO
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Occfnanc y� •�CA�
PFage 1 I
J tinette Jones i Shellie Roy
Deputy Clerk Chair
Date: Id
APPROVED AS TO FORM:
Deborah Quinn Su*ne Konc an
Assistant County ttorney Co ty Manager 17)� -
ftfe Will, irector
Open Space and Trails Program
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EXI�'.�1�'t pts
LEASE
WITH OPTIONS TO PURCHASE
AND TO REQUIRE PURCHASE
Date: 13 September, 2000
This Agreement(herein"Agreement")consists of a Lease of the Premises(herein"Lease"), an
Option to Purchase Premises(herein"Option to Purchase")and an Option to Require Purchase of Premises
(herein"Option to Require Purchase"). The parties to this Agreement are SMUGGLER MOUNTAIN LLC,
a Colorado Limited Liability Company,with business office at 205 South Galena, Aspen, Colorado 81611,
hereinafter called"Lessor", and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO,a governmental body of the State of Colorado with business office at 530 Bast Main Street,
Aspen, Colorado 81611, hereinafter called"Lessee". The property which is the subject of this Agreement
(herein"Premises")consists of the land and improvements thereon known and described as follows: The
B&M Patented Lode Mining Claim, being a part of U. S. Mineral Survey No. 5304 Located in Section 7,
Township 10 South, Range 84 West of the 6"P.M., and all appurtenant water rights, if any.
In consideration of the mutual promises, obligations and agreements set forth in this Agreement, and
other good and valuable consideration as set forth in this Agreement, the parties hereto agree as follows:
LEASE OF THE PREMISES
1.
PARTIES Lessee hereby leases from Lessor,the Premises under the conditions of this
Lease.
2.
TERM The Term of this Lease shall begin on the date that Lessee acquires from Harley
A Baldwin,II,pursuant to the Purchase and Sale Agreement of even date
herewith the Little Maud Mining Claim,being a part of U. S.Mineral Survey
J No. 5304. If for any reason Lessee does not acquire said Little Maud Mining
a� Claim in accordance with said Purchase and Sale Agreement,then this
�w Agreement is null and void and the parties shall be mutually released from any
afurther liability or obligation hereunder. The Tenn of this Lease shall end at
n« midnight, May 31, 2004. The Term of this Lease will extend as necessary to
z F Closing(hereinafter defined)if Lessee exercises its option to Purchase Premises
Z d in accordance with this Agreement
—cm
o 3.
IL N to RENT Lessee agrees to pay and shall pay upon the date on which the Term of this
Lease begins as rent to Lessor the Rental Fee of twenty four thousand dollars
N
is CD (524,000)for the enure Term of this Lease. In addition thereto, during the
m Term of this Lease Lessee shall pay all charges relating to the Premises,
mo including but not limited to real estate taxes;utilities in accordance with
paragraph 10 of this Lease; maintenance and repairs in accordance with
m m paragraph 5 of this Lease; hazard and property damage insurance;and any
=m special assessments assessed by any authorized authority, apportioned for any
�"ao fraction of a calendar year in which the Term of this Lease begins or ends.
S 4 N Lessor and Lessee acknowledge that the Rental Fee may be deemed a bargain
�v o Rental Fee of less than full rental value. All other rent charges set out in this
—v paragraph shall be paid by Lessee within thirty(30)days of delivery by Lessor
to Lessee of demand for payment or reimbursement.
a.
CLEANLINESS Lessee shall keep the Premises in a clean condition. Lessee shall be responsible
for the proper storage and the final collection or ultimate disposal of all garbage
and rubbish. Lessee shall not permit the Premises to be, damaged or defaced,
nor suffer any waste.
5.
MAINTENANCE Lessee shall be responsible for all maintenance, repairs and the upkeep of the
Premises in its current condition. Without limiting the generality of the
foregoing language, Lessee shall maintain and repair trails and paths, shall
keep all currently cleared areas cleared of brush or other invasive vegetation,
and shall maintain all existing improvements.
6.
INSURANCE In addition to the payment of all premiums for hazard and property damage
insurance, Lessee understands and agrees that it shall be its own obligation to
insure any of Lessee's personal property located or used upon the Premises.
7.
COMPLIANCE
WITH LAWS Lessee shall not stake or permit any use of the Premises which will be
unlawful, improper, or contrary to any applicable law or municipal ordinance
(including without limitation all environmental,hazardous waste disposal,
zoning,building or sanitary statutes,codes,rules, regulations,or ordinances)or
the terms and restrictions of this Lease,and shall post the Premises with signs
prohibiting such uses by others.Lessee shall enforce and cooperate with other
authorities in the enforcement of any violations of such laws,rules, regulations
and ordinances, and the terms and conditions of this Lease.
8.
ADDITIONS OR
ALTERATIONS Lessee shall not make or construct any new permanent or temporary
Jc0i improvements, structures or facilities to the Premises. Any new improvements,
> structures or facilities made or permitted by Lessee may be removed by Lessor
wZ during or following the termination of this Lease at the expense of Lessee, and
=a further Lessor may repair any resulting injury to the Premises and restore the
o z Premises to their former condition at the expense of Lessee. Lessee may repair
—OMz F and improve(but not expand)the existing deck located on the Premises and,
�z d with Lessor's prior written approval which approval may not be unreasonably
F+ withheld,Lessor may construct new or relocate existing trails on the Premises.
9.
IL
�C z SUBLETTING,
�N m ASSIGNMENT,
m m OVERNIGHT USE Lessee shall not assign or sublet any part or the whole of the Premises,nor
m e shall Lessee permit the Premises to be used by its agents or licensees or the
N to public for overnight(30 minutes following sunset to 30 minutes preceding
Q m sunrise)use, such public use and occupancy to be limited to daytime(30
IN of minutes preceding sunrise to 30 minutes following sunset)use.
�.+
�40 N 10.
vu UTILITIES Lessee shall promptly pay all bills for water, sewer, fuel, heat, electricity, gas,
d telephone and other utilities furnished to the Premises during the Term of this
Lease. Upon request of Lessor, Lessee shall promptly deliver adequate proof of
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the payment of utility bills to Lessor.
11.
ENTRY Lessee shall permit Lessor to enter the Premises prior to the termination of this
Lease as a member of the public generally,to inspect the same, to make repairs
thereto(although nothing contained in this Paragraph shall be construed to
require Lessor to make any such repairs), to remove improvements constructed
or placed upon the Premises in violation of paragraph 8 of this Lease, or to
show the Premises to prospective lessees, purchasers,or mortgagees. Lessor
shall also be entitled to enter the Premises if they appear to have been
abandoned by Lessee or otherwise, as permitted by Law. Any person entitled to
enter the Premises in accordance with this paragraph may do so through his
duly-authorized representative.
12.
LOSS OR DAMAGE,
LIABILITY Lessee shall indemnify, hold harmless and defend Lessor to the extent
permitted by law against all liabilities, damages and other expenses,including
reasonable attorneys'fees,which may be imposed upon, incurred by,or asserted
against Lessor by reason of(a)any failure on the part of Lessee to perform or
comply with any covenant required to be performed or complied with by Lessee
under this Lease, or(b)any injury to person or loss of or damage to property
sustained or occurring on the Premises.
13.
DEFAULT If Lessee shall fail to comply with any lawful Term,condition,covenant,
obligation,or agreement expressed herein or implied hereunder,and if Lessee
shall not cure such failure to comply within ten(10)days after Lessee's receipt
of Lessor's written notice to Lessee specifying such failure,or if a petition in
bankruptcy has been filed by or against Lessee or if Lessee shall be adjudicated
bankrupt or insolvent according to Iaw or if any assignment of Lessee's property
shall be made for the benefit of creditors,then,and in any of the said cases and
notwithstanding any license or waiver of any prior breach of any of the said
terms,conditions, covenants,obligations,or agreements,the Lessor,without
Jc�i necessity or requirement of making any entry may(subject to the Lessee's rights
a F under applicable law)terminate this Lease and,at Lessor's option,the Option
N Z to Purchase and at Lessor's option the Option to Require Purchase,by written
i�—>0 notice to Lessee to vacate the Premises. If, however,Lessee demonstrates good
= o z faith due diligence in curing such failure to comply with any lawful Term,
z le condition,covenant,obligation or agreement expressed herein or implied
ems,cc d re hereunder, the Lessor shall grant additional reasonable time necessary to cu
_.+ such failure not to exceed thirty(30)days. A notice of termination of the
om Option to Purchase under the terms of this paragraph may be recorded by
d m Lessor or Lessee in the land records for Pitkin County, Colorado.
�Nz
N m Any termination under this section shall be without prejudice to any remedies
�_m m which might otherwise be used for breach of any of the said terms,conditions,
�
m e covenants,obligations or agreements.
-N m
mNotwithstanding the foregoing, any dispute not cured in accordance with this
re paragraph or otherwise cured,and which either party in writing has notified the
., other party may or shall result in termination of this Lease, the Option to
�CO N Purchase or the Option to Require Purchase, then either party may provide
r-c notice of mediation to the other party in accordance with paragraph 7 of the
V CO General Provisions.
3 -
14.
COVENANTS IN
EVENT OF
TERMINATION Lessee indemnifies Lessor from and against any loss and damage sustained by
reason of any termination caused by the default of,or the breach by, Lessee.
Lessor's damages hereunder shall include, but shall not be limited to, any loss
of rents, accrued but unpaid prior to termination; reasonable broker's
commission for the re-letting of the Premises; advertising costs; the reasonable
cost incurred in cleaning the Premises in order to re-let or re-possess the same
and moving and storage charges incurred by Lessor in moving Lessee's
belongings pursuant to eviction proceedings.
Lessor shall also be entitled to any and all of the remedies provided by law. All
rights and remedies are to be cumulative and not exclusive.
15.
SURRENDER Unless Lessee has closed on its purchase of the Premises in accordance with the
terms of the Option to Purchase hereinafter described,upon the termination of
this Lease, Lessee shall deliver up the Premises in as good order and condition
as the same were in at the commencement of the Term,reasonable and ordinary
wear and tear and damage by fire and other unavoidable casualty only excepted.
The vacating of the Premises by Lessee shall not be deemed a surrender or an
acceptance of surrender of the Premises,unless so stipulated in writing by
Lessor.
16.
J$ NOTICES Notice from one party to the other shall be deemed to have been properly given
a F if mailed by registered or certified mail,postage prepaid, return receipt
y z requested,to the other party(a)in the camof Lessor,at the address set forth in
the first paragraph of this Agreement or any other address of which Lessee has
c z been notified, and(b) in the case of Lessee, at the address set forth in the first
Y paragraph of this Agreement or any other address of which Lessor has been
�
cc" notified.
=za.
M
�Ge m 17.
d m WAIVER The waiver of one breach of any term, condition, covenant, obligation, or
z agreement of this Lease shall not be considered to be a waiver of that or any
N m other Term, condition, covenant,obligation,or agreement or any subsequent
m m breach thereof.
Imo
BNB
�a m OPTION TO PURCHASE PREMISES
rr In consideration of the Lease covenants, teens and payments,and the covenants, terms and
�m N agreements under this Option to Purchase Premises("Option to Purchase"), the adequacy of which is hereby
40
o acknowledged, Lessor hereby offers and Lessee hereby accepts this Option to Purchase for the Premises
W hereinabove described.
1.
OPTION PERIOD This Option to Purchase shall run from the date on which the Term of the Lease of
the Premises begins until midnight,May 31, 2004 which period of time is
hereinafter called the"Option Period", but Lessee may not deliver to Lessor its
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notice of intent to purchase the Premises("Notice of Purchase")in accordance with
paragraphs 3 and 5 of this Option to Purchase prior to January 1,2004.
2.
PURCHASE PRICE The agreed purchase price to be paid by the Lessee to Lessor for the Premises is One
Hundred Thousand Dollars($100,000) (the"Purchase Price"). All lease payments
under the Lease shall be credited to such Purchase Price.
3.
NOTICE OF
INTENT TO
PURCHASE
(EXERCISE OF
PURCHASE OPTION) If Lessee wishes to purchase the Premises under this Option to Purchase, Lessee
shall deliver in writing its Notice of Purchase to Lessor between January 1, 2004,
and May 31, 2004, in accordance with paragraph 5 of this Option to Purchase
("NOTICES AND PAYMENTS"). Delivery of the Notice of Purchase, signed by
Lessee,constitutes a full and binding obligation of Lessee to purchase and of Lessor
to sell the Premises under the terms and conditions of this Option to Purchase and
the Agreement.
4.
CLOSING The Closing on Lessee's purchase and payment of the balance of the Purchase Price
by Lessee to Lessor shall take place on or before the thirtieth(301s)day following
Lessee's delivery to Lessor of Lessee's Notice of Purchase in accordance with
paragraphs 3 and 5 of this Option to Purchase, unless extended.
5.
NOTICES AND
0
PAYMENTS Notice from one party to the other shall be deemed to have been properly given
0 if mailed by registered or certified mail,postage prepaid,return receipt
21-
w I— requested, to the other parry(a)in the case of Lessor,at the address set forth in
—'^Zthe first paragraph in this agreement or any other address of which Lessee has
w been notified, and(b) in the case of Lessee, at the address set forth in the first
a z paragraph in this agreement or any other address of which Lessor has been
Y notified.
f-
M
IL
Z 6.
to TITLE TO PREMISES Said Premises are to be conveyed under this Option to Purchase by a good a
sufficient Special Warranty deed running to the Lessee,and said deed shall
N Z convey a good and clear record and marketable title thereto,free from
encumbrances,except
—=w
m e (a) Provisions of existing building, zoning, and use control laws;
�Nm
m (b) Such tares for the then current year as are not due and
payable on the date of the delivery of such deed;
dD
m a (c) Any liens for public betterments assessed after the date of this
`o Agreement;
v.+
(d) 50%undivided interest in mineral rights retained by Edwin J.
Smart,his successors and assigns described in the Pitkin County Land Records
at Book 248, Page 19 subject to the terms of paragraph 9 ("Lessee's Right of
Rescission")of the"General Provisions of this Agreement" hereof, and
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(e) The following exceptions and reservations: those exceptions
set out at Schedules A and B of the Commitment for Title Insurance, Case No.
PCT 15316, issued by Pitkin County Title, Inc., effective June 16, 2000 (except
Schedule B exceptions numbered 9 and 11, and except the exception in
Schedule A for the portion of land approximately 123 feet by 240 feet deeded
by instrument recorded at Book 585, Page 322 of the real estate records of
Pitkin County, all of which must be removed), and(subject to Lessee's election
in accordance with the second unnumbered paragraph following)matters that
an accurate survey and inspection of the Premises tray disclose.
In this regard, Lessee shall obtain prior to delivery to Lessor of its Notice of
Purchase such title commitment, instruments and documents relating to the
Property as it deems necessary. The title commitment and those title
instruments and documents relating to the Premises which are shown of record
in the office of the clerk and recorder of Pitkin County(except those documents
listed in Schedules A and B of the Commitment for Title Insurance, Case No.
PCT 15316, issued by Pitkin County Title, Inc., effective June 16,2000)
constitute the title documents(Title Documents). At such time as,and included
with its delivery of the Notice of Purchase in accordance with paragraphs 3 and
5 of this Option to Purchase, Lessee shall furnish Lessor with: (i)copies of
instruments listed in the schedule of exceptions to the title commitment not
previously listed in Schedules A and B of the Commitment for Title Insurance,
Case No. PCT 15316, issued by Pitkin County Title, Inc.,effective June 16,
2000, (H)all other Title Documents,and(iii)any notice of unmerchantibility of
title or any other unsatisfactory title condition shown by the Title Documents.
Lessee shall further provide written notice to Lessor of unmerchantibility of
title or of any other unsatisfactory title condition within five(5)calendar days
after Lessee's receipt of any subsequent endorsement(s)adding new
exception(s)to the title commitment together with a copy of the Title Document
adding new exception(s)to title. If Lessor does not receive Lessee's notice of
a z rtrerchantibility by midnight fth of the fi (5'b)calendar day after Lessor's receipt
of such endorsements,Lessee accepts the condition of title as disclosed by the
Title Documents as satisfactory(those exceptions listed in Schedules A and B
�cr= of the Commitment for Title Insurance, Case No.PCT 15316,issued by Pitkin
x County Title, Inc., effective June 16, 2000 -except exceptions numbered 4,5,6,
.~. 9 and 11 and except the exception in Schedule A for the portion of land
W IL
wapproximately 125 feet by 240 feet deeded by instrument recorded at Book 585,
m Page 322 of the real estate records of Pitkin County, -being deemed
MW C m satisfactory, subject to Lessee's right of rescission in accordance with paragraph
N= 9 of the"General Provisions of this Agreement" hereof). Any premium for title
am insurance shall be paid at or following Closing by Lessee.
m
G Prior to its delivery of the Notice of Purchase in accordance with paragraphs 3
m a9 and 5 of this Option to Purchase, Lessee may conduct or have conducted a
a @ survey and inspection of the Premises for the purpose of determining the
490
existence of matters that are described and excepted in exceptions numbered 1,
�--m 2 and 3 in Schedule B of the Commitment for Title Insurance, Case No. PCT
to N 15316 more fully described above or similar exceptions as may appear in the
rmo o Title Documents. If such inspections and survey disclose the existence of
a—MME v. matters that are described and excepted in such exceptions 1,2 and 3 (except as
---'r" these may relate to Lessee's possession of the Premises),Lessee may upon
written notice delivered to Lessor with its delivery of the Notice of Purchase
condition its obligation to close under the Option to Purchase on Lessor's
correction of such matters or the title company's insuring over such exceptions.
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Lessee's failure to condition its obligation to close on Lessor's correction of or
the title company's insuring over such exceptions at such time as it delivers to
Lessor its Notice of Purchase shall be deemed a waiver of such condition.
7.
BARGAIN SALE The Parties hereto acknowledge that(i)the current fair market value of the
Premises exceeds Lessee's purchase price and the Premises' fair market value at the
time of Closing is expected to exceed Lessee's purchase price and therefore(ii)
Lessor wishes to effectuate the transaction contemplated by this Option to Purchase
(and this Agreement's Option to Require Purchase, if applicable)as a bargain sale,
so-called(part sale, part charitable donation) as defined at Internal Revenue Code
Section 1011(b),as amended,and the regulations thereunder. In this regard,after
Closing at Lessor's request and at no cost to Lessee, Lessee agrees to take all actions
reasonably requested by Lessor to acknowledge the charitable donation, including
acknowledgment of the donation on Lessor's federal Form 8283 and issuance to
Lessor of a gift acknowledgment letter.
8.
POSSESSION OF
PREMISES Full possession of said Premises,free of all tenants and occupants(except
Lessee)given access to the Premises by Lessor, is to be delivered at the time of
the delivery of the deed,said Premises to be then in compliance with the
provisions of any instrument referred to in paragraph 6 of this Option to
Purchase. The Lessee shall be entitled to an inspection of said Premises prior
to the delivery of the deed in order to determine whether possession of the
Premises may be delivered by Lessor in accordance with the terms of this
paragraph.
0 9•
EXTENSION TO
_.�. PERFECT TITLE
If at the time of the delivery of the deed the Lessor shall be unable to give title
0 as herein stipulated,then Lessee shall give written notice thereof to the Lessor
ao,an z at or before the time of the delivery of the deed under this Option to Purchase
Z
be and Lessor shall use reasonable efforts to remove such defects(those set out in
d paragraph 6 of this Option to Purchase not being deemed"defects"), whereupon
=w 0 the time for delivery of the deed shall be extended for a period of forty(40)
to days. Reasonable efforts shall not require the Lessor to expend more than two
0 to thousand dollars($2,000).
�o.z
N
�wm
N m 10.
m a FAILURE TO PERFECT
m c TITLE
N m If at the expiration of the extended time for the delivery of the deed the Lessor
m a; shall have failed so to remove such defects in title,or deliver possession, as the
z case may be, all as herein agreed, then,at the Lessee's option, all obligations of
i N all parties hereto shall cease and this Option to Purchase shall be void without
W recourse to the parties hereto.
�r o
�aN it.
ELECTION TO
ACCEPT TITLE The Lessee shall have the election, at either the original or any extended time
for delivery of the deed,to accept such title as can be delivered to the said
Premises in its then condition and to pay therefor the purchase price without
deduction, in which case such Premises shall be conveyed.
_7 _
12.
ACCEPTANCE OF
DEED The acceptance of a deed by the Lessee shall be deemed to be a full
performance and discharge of every agreement and obligation herein contained
or expressed except such as are,by the terms hereof, to be performed after the
delivery of said deed.
13.
USE OF PURCHASE
MONEY TO CLEAR
TITLE To enable the Lessor to make conveyance as herein provided, the Lessor may,
at the time of delivery of the deed, use the purchase money or any portion
thereof to clear the title of any or all encumbrances or interests,provided that
all instruments so procured are recorded simultaneously with the delivery of
said deed, or within a reasonable time thereafter,or the title company is willing
to insure over the instruments.
14.
ADJUSTMENTS Taxes on the Premises for the then current year shall be apportioned as of the
day of delivery of the deed under this Option to Purchase;and the net amount
thereof shall be added to or deducted from,as the case may be,the purchase
price payable at the time of delivery of the deed
15.
ADJUSTMENT OF
�.. UNASSESSED AND
ABATED TAXES If the amount of said taxes is not mown at the time of the delivery of the deed,
a they shall be apportioned on the basis of the taxes assessed for the preceding
�w year,Lessor shall pay Lessee any unpaid, prorated apportioned share of taxes to
�> the time of the delivery of the deed, and there shall be a reapportionment as
um o Y soon as the new tax rate and valuation can be ascertained. If the taxes which
c�f- are to be apportioned shall thereafter be reduced by abatement,the amount of
�z d such abatement,less the reasonable cost of obtaining the same,shall be
c m apportioned between the parties, provided that neither party shall be obligated
c m to institute or prosecute proceedings for an abatement unless herein otherwise
Z agreed This paragraph shall survive delivery of the deed.
�44
Vq B
N m 16.
am
n INSPECTION Lessee has inspected the Premises and is thoroughly acquainted with its
F to condition. Lessee agrees to purchase the Premises"AS IS"without warranty of
a m any kind except as provided in the special warranty deed and in this
m Agreement, and in its then current condition,subject to reasonable use,wear,
m tear and natural deterioration between the execution of this Agreement and
Closing under this Option to Purchase. Lessee shall have the right,in
m.. accordance with paragraph 8 of this Option to Purchase,to inspect the Premises
° prior to Closing.
17.
LESSOR'S
CONTINGENCY Notwithstanding any other provision to the contrary,Lessor's obligation to
close under the terms of this Option to Purchase, even upon Lessee's delivery to
8
Lessor of its Notice to Purchase in accordance with paragraph 3 of this Option
to Purchase, is contingent upon the following: (i) Lessee's purchase under a
purchase and sale agreement with Harley A. Baldwin, II, of even date herewith
of contiguous property known as the Little Maud Mining Claim,being a part of
U. S,Mineral Survey No. 5304 located in Section 7, T. 10 S,R. 84 W of the 6 h
P. M.,as more fully described in said purchase and sale agreement,and(li)
issuance of a ruling by the Internal Revenue Service in connection with this
transaction and the purchase and sale transaction between Lessee and Harley A.
Baldwin, 11,described immediately above which, in the sole opinion of Lessor,
is favorable. The request for such Wiling is to be submitted by Lessor to the
Internal Revenue Service as soon as administratively possible following
execution of this Agreement by both parties. Lessor, at his option, may waive
this contingency by delivery of written notice to Lessee.
OPTION TO REQUIRE PURCHASE
In consideration of the covenants,terms and payments of the Lease and the Option to Purchase, and
of the covenants, terms and agreements under this Option to Require Purchase(herein "Option to Require
Purchase"),the adequacy of which is hereby acknowledged, Lessee hereby offers and Lessor hereby accepts
this Option to Require Purchase for the Premises hereinabove described.
1.
OPTION PERIOD This Option to Require Payment shall run from the date on which the Term of the
Lease of the Premises begins until midnight,August 31,2004,but Lessor may not
deliver to Lessee its notice to compel Lessee's purchase of the Premises("Notice to
Compel Purchase")in accordance with paragraph 3 of this Option to Require
o Purchase prior to midnight,June 30, 2004. The period between midnight,June 30,
2004 and midnight, August 31,2004 is hereinafter called the"Put Period".
Although the Lease under the terms of this Agreement may termite prior to the
r_6A 0 Put Period,this Option to Require Purchase shall survive any termination of such
ic0i Lease.
Paz
c Y 2.
CC PURCHASE PRICE The agreed purchase price to be paid by the Lessee to Lessor for the Premises is One
N m Hundred Thousand Dollars(S 100,000) (the"Purchase Price"). All lease payments
IM ea under the Lease shall be credited to such Purchase Price.
mom 3.
i N z NOTICE TO
�'.'m COMPEL PURCHASE
m m (EXERCISE OF
a n PUT OPTION) If Lessor wishes to compel Lessee to purchase the Premises,Lessor shall deliver its
N m Notice to Compel Purchase" to Lessee in accordance with paragraph 5 of the
m m foregoing Option to Purchase("NOTICES AND PAYMENTS") during the Put
a Period. Delivery of the Notice to Compel Purchase, signed by Lessor,constitutes a
a m full and binding obligation of Lessee to purchase and of Lessor to sell the Premises
«r m a under the terms and conditions of this Option to Require Purchase and the
T-o Agreement.
`v v
4
CLOSING The Closing and payment of the balance of the Purchase Price by Lessee to Lessor
shall take place within ninety(90)days of Lessor's delivery of its Notice to Compel
Purchase.
-9 -
5.
INCORPORATION
BY REFERENCE OF
PARAGRAPHS 3-
16 OF OPTION TO
PURCHASE in the event Lessor delivers its Notice to Compel Purchase under the terms and
conditions of paragraphs 1 -3 of this Option to Require Purchase, then the
terms and conditions of Closing are governed by paragraph 4 of this Option to
Require Purchase and paragraphs 3 - 16 of the Option to Purchase, which
paragraphs are incorporated in this Option to Require Purchase by reference.
GENERAL PROVISIONS OF THIS AGREEMENT
1.
DEFINITIONS The words"Lessor"and"Lessee" as used in this Agreement shall include their
respective heirs, legatees,devisees, executors,administrators, successors,
personal representatives and assigns; and the words"he," "his,"and him,"
where applicable shall apply to Lessor or Lessee regardless of sex, number,
corporate entity, trust or other body. If more than one party signs as Lessor or
Lessee hereunder,the conditions and agreements herein of Lessor or Lessee
shall be joint and several obligations of each such party.
2.
LIABILITY OF TRUSTEE,
SHAREHOLDER,
BENEFICIARY,ETC. If either party executes this Agreement in a representative or fiduciary capacity,
only the principal of the estate represented shall be bound, and neither the patty
C so executing nor any shareholder or beneficiary of any trust,shall be personally
Gable for any obligation,express or implied,hereunder.
M F
3.
N c�i WARRANTIES AND
�o z REPRESENTATIONS Both parties acknowledge that they have not been influenced to enter into this
F transaction nor relied upon any warranties or representations not set forth or
a d incorporated in this Agreement or previously made in writing.
=z
M
4.
CONSTRUCTION OF
N= AGREEMENT This Agreement, which may be executed in multiple counterparts,each
i -4a counterpart to be deemed an original, is to be construed as a Colorado contract,
m to sets forth the entire contract between the parties, is binding upon and inures to
m 0 the benefit of the parties hereto and their respective heirs,devisees,executors,
�N m administrators, successors and assigns, and may be cancelled, modified or
m m amended only by a written instrument executed by both parties. The captions
�� rr are used only as a matter of convenience and are to be considered a part of this
m Agreement or to be used in determining the intent of the parties to it.
�4 N
r-0 5.
�qr In SEPARABILITY
CLAUSE If any provision of this Agreement or portion of such provision or the
application thereof to any person or circumstance is held invalid. the remainder
10-
of the Agreement(or the remainder of such provision)and the application
thereof to other persons or circumstances shall not be affected thereby.
6.
ASSIGNMENT Lessee shall not assign or sublet or License the whole or any part of the
Premises without the Lessor's prior written consent, which may be withheld by
Lessor in the discretion of Lessor. In the event of such assignment, sublease or
license, Lessee shall remain liable to Lessor for the full and punctual
performance of all obligations of the Lessee hereunder. Notwithstanding the
foregoing prohibition against assignment or other transfer,Lessee may assign
with the Lessor's prior written consent,which may be withheld by Lessor in the
discretion of Lessor, either(i)solely the Lessee interests in the Lease, (ii) solely
the Lessee interests in the Option to Purchase,or(iii)solely the Lessee interests
in both the Lease and Option to Purchase,separately from the other Lessee
interests in this Agreement,but in any such case only to an organization that is
(i)described in clause(v)or(vi)of subsection 170(b)(1)(A)of the Code or(ii)
is described in Section 501(c)(3)of the Code and meets the requirements of
Sections 509(a)(2)or 509(a)(3)thereof. The whole or any part of the
Premises,and the Lessor interests in the entire Agreement, or individually or
together the Lease, Option to Purchase and Option to Require Purchase may be
assigned by Lessor in its sole discretion.
7.
REMEDIES In addition to any other remedies specifically set forth in this Agreement,
Lessor and Lessee have the right to enforce the provisions of this Agreement
through actions for specific performance,injunctive relief~damages,
contribution or any other available proceedings in law or equity. The election
of any one remedy shall not constitute a waiver of other remedies.
Notwithstanding the foregoing, if a dispute arises between the parties
concerning any duties, obligations or requirements of this Agreement which
either party in writing has notified the other party may or shall result in
termination of this Lease,the Option to Purchase or the Option to Require
a z Purchase,then either party may refer the dispute to mediation by notice made
_>0 in writing to the other. Within ten(10)days of such notice,the parties shall
ri a z select a single trained and impartial mediator. If the parties are unable to agree
=o Y on the selection of a single mediator,then the parties shall,within fifteen(15)
z w days of receipt of the initial request,jointly apply to a proper court for the
CrIL
appointment of a trained and impartial mediator. Mediation shall then proceed
0 m in accordance with the following guidelines:
N z a) Purpose. The purpose of the mediation is to: (i)promote discussion
between the parties; (d)assist the parties to develop and exchange pertinent
=m m information concerning the issues in dispute;and(iii)assist the parties to
e develop proposals which will enable them to arrive at a mutually acceptable
m m resolution of the controversy. The mediation is not intended to result in any
a m express or de facto modification or amendment of the terms, conditions,or
m restrictions of this Agreement.
=m
(4 b) Participation. The mediator may meet with the parties and their
w counsel jointly or ex pane. The parties agree that they will participate in the
mediation process in good faith and expeditiously, attending all sessions
d •+ scheduled by the mediator. Representatives of the parties with settlement
authority will attend mediation sessions as requested by the mediator.
- 11 -
c) Confidentiality. All information presented to the mediator shall be
deemed confidential and shall be disclosed by the mediator only with the
consent of the parties or their respective counsel. The mediator shall not be
subject to subpoena by any party. No statements made or documents prepared
for mediation sessions shall be disclosed in any subsequent proceeding or
construed as an admission of a party.
d) Time Period. Neither party shall be obligated to continue the
mediation process beyond a period of sixty(60)days from the date of receipt of
the initial request or if the mediator concludes that there is no reasonable
likelihood that continuing mediation will result in a mutually agreeable
resolution of the dispute. Any notice of termination of the Lease,Option to
Purchase or Option to Require Purchase delivered to either party in accordance
with the provisions of this Agreement shall be stayed during the pendency of
mediation proceedings.
e) Costs. The costs of the mediator shall be borne equally by Lessor and
Lessee;the parties shall bear their own expenses, including attorney's fees,
individually.
8.
ENVIRONMENTAL
REPRESENTATIONS Lessor warrants and represents to Lessee that to the best of Lessoes actual
knowledge(a) the Premises have never been used as a landfill or waste dump;
(b)there has been no installation in, or production,disposal or storage on,the
Premises of any hazardous waste or materials or other toxic substances,
including without limitation,asbestos,by any tenant or any previous owner or
previous tenant or any other activity which could have toxic results; and(c)
there is no proceeding or inquiry by any governmental authority with respect to
any violations of any environmental regulations or laws or any hazardous waste
concerns on the Premises. This representation is also made as of the Closing
�.. date of either of the Options hereunder and the remedies for breach thereof
Nz shall survive such Closing.
�M0 9.
a= LESSEE'S RIGHT
Y OF RESCISSION Lessee shall apply its best diligent efforts to obtain a release from the current
,~. owner of those mineral rights reserved by Edwin L Smart at Book 248,Page
z 19 Pitkin County Land Records within fifly-five(55)days following the date
—o m first written above. If Lessee is unable to obtain such release to its satisfaction,
�o ra or otherwise elects not to take title to the Premises subject to such reserved
�n Z mineral rights,Lessee may,upon written notice delivered within said fifty-five
�f"m (55 days) to Lessor in accordance with paragraph 16 of the Lease herein,
=m m rescind this Agreement. Upon such rescission this Agreement shall be null and
a—m m o void, the parties shall be mutually released from any further liability or
m
� m obligation, and Lessee shall be entitled to return of all deposits and payments
a m made to Lessee or Lessee's agent in accordance with this Agreement.
cc
�mm
�.+
m 10.
mN RECORDATION The parties agree that this Agreement shall be recorded in the Pitkin County
Land Records on or following the date on which the Term of the Lease of the
�v Premises begins. In the event this Lease, Option to Purchase and Option to
--4W Require Purchase all are terminated,Lessee shall deliver to Lessor a quit claim
release of this Agreement in recordable form upon request of Lessor.
- 12 -
EXECUTED as an instrument under seal on the day and date first written above.
Lessor
Smuggler Mountain LLC
Witness By:
Its: Duly Authorized
Agreed to and Accepted by Lessee,
Attest:
Board of County Commissioners of Pitkin
Couaty,Colorado
By:
Its:
Duly Authorized
(Notary acknowledgments follow,on next page)
I I"�II 'IIII "III' I'I'II "I I'I"II II"I III "II'I '�I I'II
447766 10/10/2000 02:12P ORDINANC DAVIS SILVI
18 of 28 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO
- 13 -
STATE OF COLORADO )
)ss.
County of Pitkin )
The foregoing instrument was acknowledged before me this`day of 2000, by
as of a
WITNESS my hand and official seal.
My commission expires:
(Seal) Notary Public
STATE OF COLORADO )
)ss.
County of Pitkin )
The foregoing instrument was acknowledged before me this_day of 2000,by
as of a
WITNESS my hand and official seal.
My commission expires:
(Seal) Notary Public
F:\S-NAGEL%AGREEMEN,LEASEMALDWINLEASEOPr.DOC
111111111111111111111111111111111111111 I11111111111
447766 10/10/2000 02:12P ORDINANC DAVIS SILVI
19 of 26 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO
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Sap-1 3-GO 10:41 From-BROWNSTEIN HYATT &FARBER. . . . . . . . . . . . . 1-01 r UJ/U4 r-044
FIRST ADDENDUM TO LEASE
WITH OPTIONS TO PURCHASE AND TO REQUIRE PURCHASE
This First Addendum to Lease with Options to Purchase and to Require Purchase
("AddendUM"), is made and entered into to be effective as of September 13,2000 by and between
Smuggler Mountain LLC ("Lessor"), and the Board of County Commissioners of Pitkin County,
Colorado ("Lessee").
WHEREAS, Lessor and Lessee have entered into that certain Lease Agreement("Sjj&jI]aj
A eem H") dated as of September 13, 2000 (capitalized terms not otherwise defined herein shall
have the meaning set forth in the Original Agreement); and
WHEREAS, Lessor and Lessee now desire to etiter into this Addendum to clarify certain of
the provisions of the Original Agreement.
NOW, THEREFORE, in consideration of the foregoing, of mutual promises of the parties
hereto and for other good and valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereby amend the Original Agreement as follows:
I. The following permitted exception to title is added as a new Section 6(f)to theOption
to Purchase portion of the Original Agreement:
(f) Notice of Lis Pendens recorded July 26, 2000 as Reception No. 445483
regarding Civil Action No. 00-M-1296 in the District Court of Pitkin County. '
This Addendum may be executed in counterparts, each of which shall be deemed to be an
original and all of which together shall constitute one agreement binding on all parties hereto, not
withstanding that all the parties shall not have signed the same counterpart. In all other respects,the
terms and conditions of the Original Agreement shall remain in full force and effect between the
parties.
IN WTI'NESS WHEREOF, the parties hereto have executed this Addendum to be effective
as of September 13, 2000.
Smuggler Mountain LLC
— By:
Harley A. Baldwin, LI,Manager/Member
The Board of County Commissioners of Pitkin
County, Colorado
By:
Its Chairman, duly authorized
6591%4\605688.1
I11III "III 11III111111111I 111111111111 III 111111111 IN
4147766 10/10/2000 02:12P ORDINANC DAVIS SILVI
20 of 28 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO
PURCHASE AND SALE AGREEMENT
1. PARTIES. This Agreement is dated the 13th day of September,
2000, and is by and between Harley A. Baldwin, II having an address of 205 South
Galena, Aspen, Colorado 81611 (hereinafter"Seller"), and the Board of County
Commissioners of Pitkin County, Colorado, a governmental body of the State of
Colorado having an address of 530 East Main Street, Aspen, Colorado 8161.1 (hereinafter
"Buyer").
2. BASIC AGREEMENT. Seller agrees to sell and Buyer agrees to buy,
pursuant to the terms hereof, the unimproved property known as the Little Maud Mining
Claim, being apart of U. S. Mineral Survey No. 5304 located in Section 7, T 1 OS, R 84
W of the 6' P. M., and is also Schedule No. 16068 in the records of the Pitkin County
Assessor, and all appurtenant water rights, if any.
3. TITLE TO PREMISES. Said Premises are to be conveyed by a good and
sufficient Special Warranty deed running to the Buyer, and said deed shall convey a good
and clear record and marketable title thereto, free from encumbrances, except
(a) Provisions of existing building, zoning, and use control laws;
(b) Such taxes for the then current year as are not due and payable on
the date of the delivery of such deed;
(c) Any liens for public betterments assessed after the date of this
Agreement;
M (d) 50% undivided interest in mineral rights retained by Edwin J.
y c
� Smart, his successors and assigns described in the Pitkin County Land
�a= Records at Book 248, Page 19, subject to the terms of paragraph 23
=o x hereof; and
cr r
==Z (e) The following exceptions and reservations: those exceptions set
�c out at Schedules A and B of the Commitment for Title Insurance, Case
d= No. PCT 15316, issued by Pitkin County Title, Inc., effective June 16,
m 2000 (except exception numbered 11. which must be removed) and
�m m (subject to Buyer's election in accordance with the second unnumbered
R—Mm G paragraph following) matters that an accurate survey and inspection of the
�N m Premises may disclose.
�00
In this regard, Seller shall furnish to Buyer, at Seller's expense, a current
�,o a commitment for owner's title insurance policy in an amount equal to the purchase price,
_sr-o on or before October 31, 2000 (Title Deadline). Copies of instruments listed in the
a N schedule of exceptions in the title insurance commitment not previously listed in
Schedules A and B of the Commitment for Title Insurance, Case No. PCT 15316, issued
1
by Pitkin County Title, Inc., effective June 16, 2000, shall also be furnished to Buyer at
Seller's expense. This requirement shall pertain only to instruments shown of record in
the office of the clerk and recorder of Pitkin County. The title insurance commitment,
together with any copies of instruments furnished pursuant to this paragraph, constitute
the title documents (Title Documents). Seller shall furnish copies of instruments listed in
the schedule of exceptions (as limited above) in the title commitment no later than the
date of Title Deadline. Buyer shall have the right to inspect the Title Documents.
Written notice by Buyer of unmerchantibility of title or of any other unsatisfactory title
condition shown by the Title Documents shall be signed by or on behalf of Buyer and
given to Seller within five (5) calendar days after Buyer's receipt of any Title
Document(s) or endorsement(s) adding new exception(s) to the title commitment together
with a copy of the Title Document adding new exception(s) to title (those exceptions
listed in Schedules A and B of the Commitment for Title Insurance, Case No. PCT
15316, issued by Pitkin County Title, Inc., effective June 16, 2000, being deemed
satisfactory except for exceptions numbered 4, 5, 6 and 11, subject to Buyer's right of
rescission in accordance with paragraph 23 hereof). If Seller does not receive Buyer's
notice by midnight of the fifth (5�) calendar day after Buyer's receipt, Buyer accepts the
condition of title as disclosed by the Title Documents as satisfactory. Any premium for
title insurance shall be paid at or following closing by Buyer.
During the fifty-five (55) day rescission period set out at paragraph 23 hereof,
Buyer and its agents, at Buyer's option and expense, may enter the Premises to prepare a
survey of and to inspect the Premises for the purpose, at Buyer's option, of deleting
exceptions numbered 1, 2 and 3 in Schedule B of the Commitment for Title Insurance,
= 0Case No. PCT 15316 more fully described above or similar exceptions as may appear in
=M)I- the Title Documents. If such inspections and survey disclose the existence of matters that
—W Z are described and excepted in such exceptions 1, 2 and 3, Buyer may upon written notice
�(n delivered to Seller within said fifty-five (55) days condition its obligation to close under
c w this Agreement on Seller's correction of such matters or the title company's insuring over
—0 1- such exceptions.
�=d
��a 4. PURCHASE PRICE AND PAYMENTS. The agreed purchase price for
�c m the Premises to be conveyed under this Agreement is Five Hundred and Fifty Thousand
��m Dollars ($550,000). With its signature hereto, the Buyer herewith pays Fifty Thousand
=� Dollars ($50,000) as its deposit, to be held in escrow by Pitkin County Title Company,
n 601 East Hopkins, Aspen, Colorado 81611, (Escrow Agent), receipt of which is hereby
N m acknowledged by said Escrow Agent. The remaining balance of Five Hundred Thousand
�a m Dollars ($500,000) will be paid by Buyer at the time for delivery of deed in accordance
m with the terms of this Agreement. All charges imposed by the Escrow Agent for the
mN closing and escrow services herein specified shall be borne by the Buyer, and all
�A o recording fees and state and local transfer charges and taxes shall be borne by the Buyer.
�qr N
—v N 5. BARGAIN SALE. The Parties hereto acknowledge that(i) the current fair
market value of the Premises exceeds Buyer's purchase price and therefore (ii) Seller
wishes to effectuate the transaction contemplated by this Purchase and Sale Agreement as
a bargain sale, so-called(part sale, part charitable donation) as defined at Internal
2
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 take all
actions reasonably requested by Seller to acknowledge the charitable donation, including
acknowledgment of the donation on Seller's federal Form 8283 and issuance to Seller of
a gift acknowledgment letter.
6.1 MUTUAL CONTINGENCIES: Closing under this Agreement is
contingent upon:
a. the Buyer's approval in accordance with the all legal and regulatory
requirements of an ordinance substantially in the form attached hereto as Exhibit A,
which approval Buyer agrees to pursue as diligently as'administratively and legally
possible; and
b. the acquisition by Smuggler Mountain LLC, at or prior to closing under
this Agreement, of the B & M Patented Lode Mining Claim, being a part of U. S.
Mineral Survey No. 5304 located in Section 7, Township 10 South, Range 84 West of the
6"P. M., including that portion of the B & M Patented Lode Mining Claim
approximately 125 feet by 240 feet, previously deeded by instrument recorded at Book
585, Page 322 of the real estate records of Pitkin County, Colorado.
6.2 SELLER'S CONTINGENCIES. Seller's obligation to close under the
terms of this Agreement is contingent upon:
a. issuance of a ruling by the Internal Revenue Service in connection with
this transaction and the associated lease-option transaction under agreement of even date
=�c0i herewith for contiguous land known as the B&M Patented Lode Mining Claim, being a
part of U. S. Mineral Survey No. 5304 Located in Section 7, Township 10 South, Range
a z 84 West of the 6" Prime Meridian by and between Smuggler Mountain, LLC, and Buyer
herein which ruling, in the sole opinion of Seller, is favorable, the request for such ruling
�o z to be submitted by Seller to the Internal Revenue Service as soon as administratively
�z« possible following the execution of this Agreement by both parties and the escrow agent.
�Z d Seller agrees to deliver written notice to Buyer by facsimile of Seller's receipt of a
=0 do favorable ruling satisfying this contingency, Seller's notice to be delivered to the
�c m Director, Pitkin County Open Space and Trails Program (fax 970-920-5198) and Deborah
G m Quinn, Assistant County Attorney (fax 970-920-5198). Seller, at his option, may waive
N m this contingency by delivery of written notice to Buyer; and
�mm
Imo
Nb. Buyer's payment of and delivery to Smuggler Mountain LLC of the rental
�m m fee of twenty four thousand dollars ($24,000) under that Lease with Option to Purchase
and to Require Purchase of even date herewith by and between said Smuggler Mountain
ter'N LLC and Buyer, which payment and delivery Buyer agrees to make on or before the
=m•. closing under this Purchase and Sale Agreement subject, however, to the terms and
�a 0n conditions of this Purchase and Sale Agreement.
_aw
3
7. TIME FOR PERFORMANCE, DELIVERY OF DEED. The deed to the
Premises is to be delivered (closing) on or before midnight of the date corresponding
with the last to occur of the following:
a. December 29, 2000;
b. the thirtieth (30") day following Seller's receipt of a ruling from the
Internal Revenue Service rends d in connection with this transaction
and the associated lease with option transaction for contiguous land
known as the B&M Patented Lode Mining Claim, being a part of U. S.
Mineral Survey No. 5304 Located in Section 7, Township 10 South,
Range 84 West of the 6" Prime Meridian by and between Smuggler
Mountain, LLC, and Buyer herein which ruling, in the sole opinion of
Seller, is favorable, the request for such ruling to be submitted by
Seller to the Internal Revenue Service as soon as administratively
possible following the execution of this Agreement by both parties and
the escrow agent, unless otherwise agreed upon; and
c. the thirtieth (30') day following Seller's delivery to Buyer of Seller's
waiver of contingency set out at paragraph 6.2(a) hereof.
8. POSSESSION AND CONDITION OF PREMISES. Full possession of
said Premises, free of all tenants and occupants, is to be delivered at the time of the
delivery of the deed, said Premises to be then (a) in the same condition as they now are,
reasonable use and wear thereof excepted, and (b) in compliance with the provisions of
any instrument referred to in paragraph 3 of this Agreement. The Buyer shall be entitled
o to an inspection of said Premises prior to the delivery of the deed in order to determine
Jwhether the condition thereof complies with the terms of this clause.
=N 0
�M 9. EXTENSION TO PERFECT TITLE OR MAKE PREMISES
�o w CONFORM. If the Seller shall be unable to provide a current commitment for owner's
_0 F title insurance policy in an amount equal to the purchase price on or before the Title
�=d Deadline or, at closing give title or make conveyance, or at closing deliver possession of
. "m the Premises, or if at closing the Premises do not conform with the provisions hereof,
�0 m then the Seiler shall use reasonable efforts to remove any defects in title (those set out in
=,rq paragraph 3 of this Agreement not being deemed"defects"), or to deliver possession as
N m provided herein, or to make the said Premises conform to the provisions hereof, as the
�m® case may be, then in any of such events Seller shall give written notice thereof to the
�m Buyer at or before the time for the performance thereof as stipulated in this paragraph,
and thereupon the time for performance thereof shall be extended for a period of thirty
days, and all other times for performance shall also be extended for a period of thirty
�~N days. Reasonable efforts shall not require the Seller to expend more than two thousand
—m dollars ($2,000).
�vv
—Rr O1 10. FAILURE TO PERFECT TITLE OR MAKE PREMISES CONFORM,
ETC. If at the expiration of the extended time the Seller shall have failed so to remove
such defects in title, deliver possession or make the Premises conform, as the case may
be, all as herein agreed, then, at the Buyer's option, any payments made under this
4
Agreement shall be forthwith refunded and all other obligations of all parties hereto shall
cease and this Agreement shall be void without recourse to the parties hereto.
11. ELECTION TO ACCEPT TITLE. The Buyer shall have the election, at
either the original or any extended time for performance, to accept such title as can be
delivered to the said Premises in its then condition and to pay therefor the purchase price
without deduction, in which case such Premises shall be conveyed.
12. ACCEPTANCE OF DEED. The acceptance of a deed by the Buyer shall
be deemed to be a full performance and discharge of every agreement and obligation
herein contained or expressed, except such as are, by the terms hereof, to be performed
after the delivery of said deed.
13. USE OF PURCHASE MONEY TO CLEAR TITLE. To enable the Seller
to make conveyance as herein provided, the Seller may, at the time of delivery of the
deed, use the purchase money or any portion thereof to clear the title of any or all
encumbrances or interests, provided that all instruments so procured are recorded
simultaneously with the delivery of said deed, or within a reasonable time thereafter, or
the title company is willing to insure over the instruments..
14. ADJUSTMENTS. Taxes on the Premises for the then current year shall
be apportioned as of the day of performance of this Agreement; and the net amount
thereof shall be added to or deducted from, as the case may be, the purchase price payable
at the time of delivery of the deed.
15. ADJUSTMENT OF UNASSESSED AND ABATED TAXES. If the
a z amount of said taxes is not known at the time of the delivery of the deed, they shall be
a c apportioned on the basis of the taxes assessed for the preceding year, Seller shall pay
�>z Buyer any unpaid, prorated apportioned share of taxes to the time of the delivery of the
deed, and there shall be a reapportionment as soon as the new tax rate and valuation can
Cr.d be ascertained. If the taxes which are to be apportioned shall thereafter be reduced by
-o m abatement, the amount of such abatement, less the reasonable cost of obtaining the same,
�c shall be apportioned between the parties, provided that neither party shall be obligated to
.�a.N z institute or prosecute proceedings for an abatement unless herein otherwise agreed. This
fir! paragraph shall survive delivery of the deed.
�mm
.gym 16. LIABILITY OF TRUSTEE, SHAREHOLDER, BENEFICIARY, ETC. If
Nm either party executes this Agreement in a representative or fiduciary capacity, only the
�a m principal of the estate represented shall be bound, and neither the party so executing nor
�a N any shareholder or beneficiary of any trust, shall be personally liable for any obligation,
express or implied, hereunder.
Win
N 17. WARRANTIES AND REPRESENTATIONS. Both parties acknowledge
that they have not been influenced to enter into this transaction nor relied upon any
warranties or representations not set forth or incorporated in this Agreement or previously
made in writing.
5
18. CONSTRUCTION OF AGREEMENT. This Agreement, which may be
executed in multiple counterparts, each counterpart to be deemed an original, is to be
construed as a Colorado contract, sets forth the entire contract between the parties, is
binding upon and inures to the benefit of the parties hereto and their respective heirs,
devisees, executors, administrators, successors and assigns, and may be cancelled,
modified or amended only by a written instrument executed by both parties. The captions
are used only as a matter of convenience and are to be considered a part of this
Agreement or to be used in determining the intent of the parties to it.
19. INSPECTION. Buyer has inspected the Premises and is thoroughly
acquainted with their condition. Buyer agrees to purcliase the Premises "AS IS" without
warranty of any kind except as provided in the special warranty deed and in this
agreement, in their current condition, subject to reasonable use, wear, tear and natural
deterioration between the execution of this Agreement and closing. Buyer shall have the
right, after reasonable notice to Seller, to inspect the Premises prior to closing.
20. ASSIGNMENT. This Agreement may not be assigned by Seller or Buyer
without the approval of both parties, which approval may be withheld at the sole
discretion of either party hereto.
21. REMEDIES. In addition to any other remedies specifically set forth in
this Agreement, Seller has the right to enforce the provisions of this Agreement through
actions for specific performance, injunctive relief, damages, contribution or any other
available proceedings in law or equity. The election of any one remedy shall not
�M F constitute a waiver of other remedies.
�Wz
22. ENVIRONMENTAL REPRESENTATIONS. Seller warrants and
o x represents to Buyer that to the best of Seller's actual knowledge (a) the Premises have
z w never been used as a landfill or waste dump; (b) there has been no installation in, or
$m production, disposal or storage on, the Premises of any hazardous waste or materials or
oother toxic substances, including without limitation, asbestos, by any tenant or any
d= previous owner or previous tenant or any other activity which could have toxic results;
a and (c) there is no proceeding or inquiry by any governmental authority with respect to
�m m any violations of any environmental regulations or laws or any hazardous waste concerns
a—m m c on the Premises. This representation is also made as of the closing date and the remedies
�0 m for breach thereof shall survive closing.
�mm
—m W 23. BUYER'S RIGHT OF RESCISSION. Buyer shall apply its best diligent
�m N efforts to obtain a release from the current owner of those mineral rights reserved by
�r-u Edwin J. Smart at Book 248, Page 19 of Pitkin County Land Records within fifty-five
�4 N (55) days following the date first written above. If Buyer is unable to obtain such release
to its satisfaction, or otherwise elects not to take title to the Premises subject to such
reserved mineral rights, Buyer may, upon written notice delivered to Seller within said
fifty-five (55) days by registered or certified mail, postage prepaid, return receipt
requested, at the address set forth in the first paragraph of this Agreement or any other
6
address of which Buyer has been notified, rescind this Agreement. Upon such rescission
this Agreement shall be null and void, the parties shall be mutually released from any
further liability or obligation, and Buyer shall be entitled to return of all deposits and
payments made to Seller, Seller's agent or Escrow Agent in accordance with this
Agreement. Notwithstanding the foregoing, Buyer's notice to Seller shall be deemed
adequate if given in any other manner provided or recognized by law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal on the day and date first written above.
Seller: Harley A. Baldwin, II
Buyer: Board of County Commissioners
of Pitkin County, Colorado
«coi
a- By:
�y Z Its Chairman, Duly Authorized
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�Z d Acknowledgment of receipt of deposit and acceptance of escrow:
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Pitkin County Title Company
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N By: (date)
m m 601 East Hopkins
Aspen, CO 81611
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7
Sep-i--GO 10:41 From-OROWNSTEM HYATT 006ER. . .. . . . . . . . .. -nai U4�U4 F_Q%Q
FIRST ADDENDUM TO PURCHASE AND SALE AGREEMENT
This First Addendum to Purchase and Sale Agreement ("Addendum '), is made and entered
into to be effective as of September 13, 2000 by and between Harley A. Baldwin, II ("Seller"), and
the Board of County Commissioners of Pitkin County, Colorado
WHEREAS, Seller and Buyer have entered into that certain Purchase and Sale Agreement
(`Original Agreement") dated as of September 13, 2000 (capitalized terms not otherwise defined
herein shall have the meaning set forth in the Original Agreement); and
WHEREAS, Buyer and Seller now desire to enter into this Addendum to clarify certain of
the provisions of the Original Agreement_
NOW, THEREFORE, in consideration of the foregoing, of mutual promises of the parties
hereto and for other good and valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereby amend the Original Agreement as follows:
1. The following permitted exception to title is added as a new Section 3(f) to the
Original Agreement:
(f) Notice of Lis Pendens recorded July 26, 2000 as Reception No. 445493
regarding Civil Action No. 00-M-1296 in the District Court of Pitkin County.
This Addendum may be executed in counterparts, each of which shall be deemed to be an
�>a original and all of which together shall constitute one agreement binding on aU parties hereto, not
�"
)I-
withstanding that all the parties shaU not have signed the same counterpart. In all other respects,the
am te s terms and conditions of the Original Agreement shall remain in full force and effect between the
�as= parties.
!0"
a IN WITNESS WHEREOF, the patties hereto have executed this Addendum to be effective
M m as of September 13,2000.
son
mom
rdz
�-m
N m Harley A.Baldwin, lI
dam
ME N m — The Board of County Commissioners of Pitkin
�,m m County, Colorado
N By:
=r-o Its Chairman, duly authorized
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6591W6056871