01-12-2005 SUNNYSIDE AT AVON ASSOCIATION 1135 OAK VIEW LANE, PLYMOUTH, MN 55441 CONTRACT TO CONVEY TEMPORARY EASEMENTCONTRACT TO CONVEY TEMPORARY EASEMENT
SUNNYSIDE AT AVON ASSOCIATION, a Colorado unincorporated
association, hereinafter called "Owner," whose address is
agrees to sell to TOWN OF AVON, whose address is P. O. Box 975, Avon, Colorado 81620,
hereinafter called "the Town" and the Town agrees to purchase the following described interest in
real property situate in the County of Eagle, State of Colorado, to-wit:
See Exhibit "A" attached hereto and incorporated
herein by this reference,
together with all improvements thereon and appurtenances thereto currently on the premises, in
their present condition, ordinary wear and tear excepted, for the purchase price of $3,592 and
subject to all terms and conditions hereof as follows:
1. Owner shall convey to the Town a temporary easement over and across the real
property described in Exhibit "A."
2. At a closing to be held on February 11, 2005, (or by mutual agreement at an
earlier date) Owner shall execute and deliver to the Town the following:
a) A good and sufficient temporary easement for the property described in
Exhibit "A."
3. It is agreed by the parties hereto that upon execution of this Contract to Sell by
the Owner and the Town that the Town, its contractors, agents, employees and all others deemed
necessary by the Town, shall have the irrevocable right to possess and use all of the real property
described on Exhibit "A" and attached hereto.
4. Loss or damage to the property from any cause, including, but not limited to,
fire, vandalism, or acts of God, from the date of this contract until the conveyance of said deed
from Owner to the Town, shall be at the risk of the Owner. If, prior to the closing, property is
destroyed or damaged in whole or in part, this contract may be canceled at the option of the
Town. The Town, at its option shall have the right to proceed with specific performance of this
Contract despite such damage, provided that the Town shall be entitled to all the credit for
insurance proceeds resulting from such damage, not exceeding, however, the total purchase price.
5. Time is of the essence hereof, and all terms, conditions and covenants shall be
tendered or performed as specified herein.
6. Owner represents and covenants to the Town that it is the only party who has a
fee interest in the property described in Exhibit "A" and that to the best of the Owner's
knowledge, there are no other interested parties in said property.
7. Owner represents and warrants, as of the date hereof and as of the date of
closing, that the following are true and correct:
7.1 SOILS. That Owner has no knowledge of any patent or latent
defects, soil deficiencies, or subsurface anomalies existing on the
property.
7.2 NO LITIGATION OR INVESTIGATION. That there is no
pending or threatened litigation, proceeding, or investigation by
any governmental authority or any other person known to Owner
against or otherwise affecting the Property, nor does Owner know
of any ground for any such litigation, proceedings or
investigations; and
7.3 NO CONDEMNATION. That Owner has received no written or
official notice of any condemnation proceedings against the whole
or any part of the Property, except that notice received from the
Town; and
7.4 DOCUMENTS. Each and every document schedule, item, or other
information delivered or to be delivered by the Owner to the Town
hereunder, or made available to the Town for inspection hereunder,
shall be true, accurate, and correct; and
7.5 NO SPECIAL ASSESSMENTS. There are no special assessments
which now burden or encumber the Property, and there are no
special assessments currently proposed as to the Property; and
7.6 NO LEASES. There are no leases, tenancies or rental agreements
relating to the Property, or to any part thereof, which cannot be
terminated by Owner on or prior to the date of closing of the
transactions provided in the contract; and
7.7 NO EASEMENTS. Owner has not granted or created, and has no
knowledge of any third parties who may have the right to claim or
assert any easement, right-of-way or claim of possession not shown
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by record, whether by grant, prescription, adverse possession or
otherwise, as to any part of the Property; and
7.8 NO LANDFILL. No part of the Property has ever been used as a
land fill, and no materials have ever been stored or deposited upon
the Property which would under any applicable governmental law
or regulation require that the Property be treated or materials
removed from the Property prior to the use of the Property for any
purpose which would be permitted by law but for the existence of
said materials on the Property; and
7.9 NO POLLUTION. (1) the real estate is not contaminated with any
hazardous substance; (ii) Owner has not caused and will not cause,
and to the best of Owner's knowledge, after diligent investigation
and inquiry, there never has occurred, the release of any hazardous
substance on the real estate; (iii) the real estate is not subject to any
federal, state or local "superfund" lien, proceedings, claim, liability
or action, or the threat or likelihood thereof, for the cleanup,
removal, or remediation of any such hazardous substance from the
real estate or from any other real property owned or controlled by
Owner or in which Owner has any interest, legal or equitable; (iv)
there is no asbestos on the real estate; (v) there is no underground
storage tank on the real estate; (vi) by acquiring the real estate,
Town will not incur or be subject to any "superf ind" Liability for
the cleanup, removal or remediation of any hazardous substance
from the real estate or any liability, cost, or expense for the
removal of any asbestos or underground storage tank from the real
estate. The terms "hazardous substance," "release," and "removal,"
as used herein shall have the same meaning and definition as set
forth in paragraphs (14), (22) and (23), respectively, of Title 42
U.S.C. § 9601; provided, however, that the term "hazardous
substance," as used herein, also shall include "hazardous waste,"
and defined in paragraph (5) 42 U.S.C. § 6903 and "Petroleum," as
defined in paragraph (8) of 42 U.S.C. § 6991. The term
"superfund," as used herein, means the Comprehensive
Environment Response, Compensation and Liability Act, as
amended, Title 42 U.S.C. § 9601, et seq., as amended, and any
similar state statute or local ordinance applicable to the real estate,
and all rules and regulations promulgated, administered and
enforced by any governmental agency or authority pursuant thereto.
The term "underground storage tank," as used herein, shall have
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the same meaning and definitions as set forth in paragraph (1) of
42 U.S.C. § 6991. Owner agrees to cooperate with the County of
Eagle in completing an environmental audit. Should the above
referenced environmental audit reveal any hazardous materials,
then the Town has the express option of terminating this Contract.
8. The parties hereto agree that, except for such of the terms, conditions,
covenants and agreements hereof which are, by their very nature, fully and completely performed
upon the closing of the purchase-sale transaction herein provided for, all of the terms, conditions,
representations, warranties, covenants and agreements herein set forth and contained shall
survive the closing of any purchase-sale transaction herein provided for and shall continue after
said closing to be binding upon and inure to the benefit of the parties hereto, their successors and
assigns.
9. When duly executed by all the parties, this agreement shall be specifically
enforceable by any court of competent jurisdiction, and the non-defaulting party shall be entitled
to costs and reasonable attorney's fees against the defaulting party for its failure to perform
hereunder. In the event that Owner should default in this agreement, the Town, at its option,
may: (1) terminate this agreement and proceed with a condemnation action, and the Town may
utilize this agreement as an admission of the value of the property being acquired, or (2) bring an
action against Owner for specific performance, or damages, or both.
10. This Contract is an integration and expresses the entire agreement between all
the parties, and the parties hereto agree that neither has made or authorized any agreement with
respect to the subject matter of this instrument other than expressly set forth herein, and no oral
representation, promise, or consideration different from the terms herein contained shall be
binding on either party, or its agents or employees, hereto.
11. If this agreement is executed by the Owner on or before the 14th day of
January, 2005, and by the Town on or before the 25th day of January, 2005, this instrument shall
become a contract between said parties and shall be binding upon and shall inure to the benefit of
the parties, their successors and assigns.
12. Whenever used herein, the singular number shall include the plural, the plural
the singular; and the use of any gender shall be applicable to all genders. All of the covenants
herein contained shall be binding upon and inure to the benefit of the parties hereto, their
successors and assigns.
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DATED this day of '2005.
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SUNNYSIDE AT AVON ASSOCIATION
By:
ATT ST:
Tow ei e
STATE OF COLORADO
COUNTY OF EAGLE
ss.
TOWN OF AVON
By
ayor
The foregoing document was subscribed and sworn to before me, the undersigned
Notary Public, on the ra ~a day of , 2005, by
yl ~t- as C w r L" ~l e'(k; t 6 of Sunnyside at Avon
Association, a Colorado unincorporated association.
My commission expires:
Witness my hand and official seal.
'_iNGSON
OT A Notary
Public
31, 2005
a BRAD A GSON
. NOTARY PUBLIC - MINNESOTA
MY Comm. Exp. Jan. 31,
2005
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing document was acknowledged before me this day of
I aaD5
`J , by Ronald C. Wolfe as Mayor and by Patty McKenny as Town
Clerk of e wn of Avon.
My commission expires:
Witness my hand and official seal
f RLE.M
! - c
BLS .
~O•..C.O.•Q/Q ,
My Commission E ^ir g
No ary P blic
My Commission Expires 04,'0812006
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