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TC Ord. No. 1991-05~ r \ J ~ ~ ~ / 1 i. ORDINANCE NO. 91- AN ORDINANCE CONCERNING THE ACQUISITION OF A FACILITY TO BE USED FOR MUNICIPAL OFFICES AND OTHER PURPOSES OF THE TOWN OF AVON, COLORADO; AUTHORIZING AND APPROVING A LEASE-PURCHASE AGREEMENT, A COMMERCIAL CONTRACT TO BUY AND SELL REAL ESTATE AND RELATED DOCUMENTS AND TRANSACTIONS; RATIFYING ACTION HERETOFORE TAKEN AND RELATING TO SUCH FACILITY AND LEASE-PURCHASE AGREEMENT; PROVIDING OTHER MATTERS RELATING THERETO; AND REPEALING ALL ORDINANCES IN CONFLICT HEREWITH. WHEREAS, the Town of Avon, Eagle County, Colorado (the '"Town") is a municipal corporation duly organized and existing under the laws of the State of Colorado and in particular under the provisions of Article XX of the Constitution of the State of Colorado and the home rule charter of the Town (the "Charter"); and WHEREAS, Section 14.9 of the Charter provides, in pertinent part: "Section 14.9 Long Term Installment Contracts, Rentals and Leaseholds--Town Property. (a) In order to provide necessary land, buildings, equipment and other property for governmental or proprietary purposes, the Town is hereby authorized to enter into long-term installment purchase contracts and rental or leasehold agreements. Such agreements may include an option or options to purchase and acquire title to such property within a period not exceeding the useful life of such property. Each such agreement and the terms thereof shall be concluded by and ordinance duly enacted by the Council. (b) The Council is authorized and empowered to provide for said payments by a tax levy imposed upon property included within the boundaries of the Town, or by rates, tolls or service charges imposed for the use of such property or any part thereof by others, or by any one or more of the above sources. (c) The obligation created hereunder shall not constitute an indebtedness of the Town within the meaning of the legal limitations on contracting indebtedness by cities. ; and WHEREAS, Section 14.7 of the Charter further provides in part: "Section 14.7 Limitation of Indebtedness. The aggregate amount of bonds or other evidences of indebtedness of the Town shall not exceed twenty-five percent (25%) of the assessed valuation of the taxable property within the Town as shown by the last preceding assessment for Town purposes; or the sum of $15,000,000.00, whichever amount shall be greater provided, however, in determining the amount of indebtedness, there shall not be included within the computation: . . . (e) Long term installment contracts other than real property acquisitions, rentals and leaseholds pursuant to Section 14.9. ; and WHEREAS, the Town Council (the "Council") has determined, and does hereby declare: A. it is desirable and to the best advantage of the Town to construct, otherwise acquire, equip, extend, improve, and develop offices for municipal use and other purposes of the Town (the "Project"), including, without limitation, all necessary improvements, land and easements for the Project; B. space suitable for the Project currently exists in the Grand on Avon building (the "Property") and the owners thereof desire to sell and the Town desires to purchase such space for the Project for $1,000,000; C. in order to acquire the Property, it is necessary to enter into a Contract -2- D. in order to finance the acquisition of the Property and the Project it is necessary to enter into a Lease-Purchase Agreement (the "Lease"), a form of which has been presented at this meeting, with Avon Municipal Building Corporation, a Colorado non profit corporation (the "Corporation); and WHEREAS, there has also been presented to this meeting of the Council the form of a certain Mortgage and Indenture of Trust (the "Indenture") to be entered into between the Corporation and Denver National Bank, in Denver, Colorado (the "Trustee"); and WHEREAS, Certificates of Participation (the "1991 Certificates") will be sold pursuant to the Indenture and the Lease; and NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Authority for this Ordinance. This ordinance is adopted by virtue of the Town's powers as a home rule municipality organized and operating pursuant to Article XX of the State Constitution and the Charter adopted thereunder and pursuant to its provisions. Pursuant to Article XX of the State Constitution and the Charter, all statutes of the State which might otherwise apply in connection with the Project, the Property, the Contract, and the Lease are hereby superseded. Section 2. Ratification. All action heretofore taken (not inconsistent with the provisions of this ordinance) by the Council or the officers or agents of the Council or the Town, directed toward acquiring the Property and completing the construction of the Project and toward the sale of the 1991 Certificates, is hereby ratified, approved and confirmed. Section 3. Findings. The Council hereby finds and determines, pursuant to the Charter and the Constitution and laws of the State of Colorado, that (i) acquiring the -3- Section 5. Approval of Indenture. ^ Council hereby approves the execution and delivery by the Corporation and the Trustee of the Indenture, with such changes to the Indenture. Section 6. Certificates. The Council hereby acknowledges and consents to the assignment by the Corporation to the Trustee, pursuant to the Indenture, of all right, title and interest of the Corporation in, to and under the Lease. The Council hereby acknowledges and consents to the issuance and sale of the 1991 Certificates in the amount, bearing interest and upon the terms and conditions set forth in the Indenture. The Council hereby acknowledges and approves the forms, terms and provisions of the 1991 Certificates contained in the Indenture. The Mayor and Clerk are hereby authorized and directed to affix his or her signature or a facsimile thereof to authenticate the 1991 Certificates, as provided in the Indenture. Section 7. Qualified Tax-Exempt Obligations. The Council hereby designates the Lease and the Certificates as qualified tax-exempt obligations pursuant to Section 265(b)(3)(B) of the Internal Revenue Code of 1986, as amended. Section 8. Execution. The Clerk is hereby authorized and directed to attest all signatures and acts of any official of the Council in connection with the matters authorized by this ordinance. The Mayor and Clerk, and other appropriate officials or agents -4- of the Town, are hereby authorized to execute and deliver for and on behalf of the Town any and all additional certificates, documents, instruments and other papers, and to perform all other acts that they may deem necessary or appropriate, in order to implement and carry out the transactions and other matters authorized by this ordinance. The appropriate officers of the Council and the Town are authorized to execute on behalf of the Town agreements concerning the sale and/or private placement of 1991 Certificates by Coughlin and the deposit and investment of funds in connection with the transactions contemplated by this ordinance. Section 9. Terms of Bond Sale. ^ Coughlin's offer to privately place the Certificates, on the terms and conditions set forth in the Indenture is hereby accepted, and the Certificates shall be sold and delivered in accordance therewith. Section 10. Payment of Base Rentals. The Base Rentals, as defined in the Lease, shall, pursuant to Section 14.9 of the Charter, be paid from a tax levy imposed upon property included within the boundaries of the Town, or such other monies of the Town which are legally available for such purpose Section 11. Repealer. All bylaws, orders, ordinances and resolutions, or parts thereof, inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any such by-law, order, ordinance or resolution, or part thereof, heretofore repealed. Section 12. Severability. If any section, subsection, paragraph, clause, or other provision of this ordinance for any reason is invalid or unenforceable, the invalidity or unenforceability of such section, subsection, paragraph, clause, or other provision shall not affect any of the remaining provisions of this ordinance. Section 13. Ordinance Irrepealable. After the Certificates are issued, this ordinance shall constitute an irrevocable contract between the Town and the registered owners of the Certificates and this ordinance shall be and shall remain irrepealable until the Certificates shall be fully paid, canceled and discharged. Section 14. Notice of Hearing. The Council will hold a public hearing on the ordinance at a meeting of the Council to be held at the Town Hall in the Town, on ?1A, 1991, being not earlier than seven days after the first publication of the or at the hour of 7:30 p.m. -5- Section 15. Disposition of Ordinance. This ordinance, as adopted by the Council, shall be numbered and recorded by the Town Clerk on the official records of the Town. Section 16. Effective Date. This ordinance shall be in full force and effect seven (7) days after its publication by posting following final passage, adoption and approval. INTRODUCED, PASSED AND APPROVED ON FIRST READING ON April 23, 1991. (SEAL) Attest: Town Clerk Mayor FINALLY PASSED, ADOPTED AND APPROVED ON May ^ 4, 1991. (SEAL) Attest: Town Clerk Mayor -6- STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AT 7:30 P.M. ON THE 14TH DAY OF MAY, 1991, AT THE TOWN HALL FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 91-5,SERIES OF 1991: AN ORDINANCE CONCERNING THE ACQUISITION OF A FACILITY TO BE USED FOR MUNICIPAL OFFICES AND OTHER PURPOSES OF THE TOWN OF AVON, COLORADO; AUTHORIZING AND APPROVING A LEASE-PURCHASE AGREEMENT, A COMMERCIAL CONTRACT TO BUY AND SELL REAL ESTATE AND RELATED DOCUMENTS AND TRANSACTIONS; RATIFYING ACTION HERETOFORE TAKEN AND RELATING TO SUCH FACILITY AND LEASE-PURCHASE AGREEMENT; PROVIDING OTHER MATTERS RELATING THERETO; AND REPEALING ALL ORDINANCES IN CONFLICT HEREWITH. A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing the Council may consider final passage of this Ordinance. This notice is given and published by order of the Town Council of tithe Town of Avon, Colorado. Dated this 24th day of April, 1991. TOW O"VON, BY . (Patricia Doyle, To n Clerk POSTED AT THE FOLLOWING PUBLIC PLACES ITHIN THE TOWN OF AVON ON APRIL 24, 1991: THE AVON POST OFFICE IN THE MAIN LOBBY THE CITY MARKET IN THE MAIN LOBBY THE COASTAL MART, INC.; and THE AVON MUNICIPAL BUILDING IN THE MAIN LOBBY ORDINANCE NO. 91- 5 AN ORDINANCE CONCERNING THE ACQUISITION OF A FACILITY TO BE USED FOR MUNICIPAL OFFICES AND OTHER PURPOSES OF THE TOWN OF AVON, COLORADO; AUTHORIZING AND APPROVING A LEASE- PURCHASE AGREEMENT, A COMMERCIAL CONTRACT TO BUY AND SELL REAL ESTATE AND RELATED DOCUMENTS AND TRANSACTIONS; RATUrYING ACTION HERETOFORE TAKEN AND RELATING TO SUCH FACILITY AND LEASE-PURCHASE AGREEMENT; PROVIDING OTHER MATTERS RELATING THERETO; AND REPEALING ALL ORDINANCES IN CONFLICT HEREWITH. WHEREAS, the Town of Avon, Eagle County, Colorado (the "Town") is a municipal corporation duly organized and existing under the laws of the State of Colorado and in particular under the provisions of Article XX of the Constitution of the State of Colorado and the home rule charter of the Town (the "Charter"); and WHEREAS, Section 14.9 of the Charter provides, in pertinent part: "Section 14.9 Long Term Installment Contracts, Rentals and Leaseholds-- Town Property. (a) In order to provide necessary land, buildings, equipment and other property for governmental or proprietary purposes, the Town is hereby authorized to enter into long-term installment purchase contracts and rental or leasehold agreements. Such agreements may include an option or options to purchase and acquire title to such property within a period not exceeding the useful life of such property. Each such agreement and the terms thereof shall be concluded by and ordinance duly enacted by the Council. (b) The Council is authorized and empowered to provide for said payments by a tax levy imposed upon property included within the boundaries of the Town, or by rates, tolls or service charges imposed for the use of such property or any part thereof by others, or by any one or more of the above sources. (c) The obligation created hereunder shall not constitute an indebtedness of the Town within the meaning of the legal limitations on contracting indebtedness by cities. ; and WHEREAS, Section 14.7 of the Charter further provides in part: "Section 14.7 Limitation of Indebtedness. The aggregate amount of bonds or other evidences of indebtedness of the Town shall not exceed twenty-Eve percent (259o') of the assessed valuation of the taxable property within the Town as shown by the last preceding assessment for Town purposes; or the sum of $15,000,000.00, whichever amount shall be greater provided, however, in determining the amount of indebtedness, there shall not be included within the computation:. (c) Long term installment contracts other than real property acquisitions, rentals and leaseholds pursuant to Section 14.9. ; and WHEREAS, the Town Council (the "Council") has determined, and does hereby declare: A. it is desirable and to the best advantage of the Town to construct, otherwise acquire, equip, extend, improve, and develop offices for municipal use and other purposes of the Town (the "Project"), including, without limitation, all necessary improvements, land and easements for the Project; B. space suitable for the Project currently exists in the Grand on Avon building (the "Property") and the owners thereof desire to sell and the Town desires to purchase such space for the Project for $1,000,000; C. in order to acquire the Property, it is necessary to enter into a Contract to Buy and Sell Rcal Estate (the "Contract"), a form of which has been presented at this meeting, with Grand On Avon, a Minnesota general partnership (the "Owner"); D. in order to finance the acquisition of the Property and the Project it is necessary to enter into a Lease-Purchase Agreement (the "Lease"), a form of which has been presented at this meeting, with Avon Municipal Building Corporation, a Colorado non profit corporation (the "Corporation); and -2- WHEREAS, there has also been presented to this meeting of the Council the form of a certain Mortgage and Indenture of Trust (the "Indenture") to be entered into between the Corporation and Denver National Bank, in Denver, Colorado (the "Trustee"); and WHEREAS, Certificates of Participation (the "1991 Certificates") will be sold pursuant to the Indenture and the Lease; and WHEREAS, the Town has retained Coughlin and Company, Inc. {"Coughlin") to privately place the 1991 Certificates; and NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Authority for this Ordnance. This ordinance is adopted by virtue of the Town's powers as a home rule municipality organized and operating pursuant to Article XX of the State Constitution and the Charter adopted thereunder and pursuant to its provisions. Pursuant to Article XX of the State Constitution and the Charter, all statutes of the State which might otherwise apply in connection with the Project, the Property, the Contract, and the Lease are hereby superseded. Section 2. Ratification. All action heretofore taken (not inconsistent with the provisions of this ordinance) by the Council or the officers or agents of the Council or the Town, directed toward acquiring the Property and completing the construction of the Project and toward the sale of the 1991 Certificates, is hereby ratified, approved and confirmed. Section 3. Finding. The Council hereby finds and determines, pursuant to the Charter and the Constitution and laws of the State of Colorado, that (i) acquiring the Property and completing the construction of the Project; and (ii) leasing the Project from the Corporation under the terms and provisions set forth in the Lease; are both necessary, convenient, and in furtherance of the Town's purposes and are in the best interests of the inhabitants of the Town; and the Council hereby authorizes and approves such acquisition of the Property, construction of the Project, and such leasing of the Project, all under the terms and provisions of the Lease. -3- Section 4. &Rroyal of Lease and Contract, The Lease and Contract are in all respects approved, authorized and confirmed, and the Mayor and Clerk are authorized and directed to affix his or her signature to the Lease and the Contract, for and on behalf of the Town. Section 5. Approval of Indenture. The Council hereby approves the execution and delivery by the Corporation and the Trustee of the Indenture, with such changes to the Indenture. Section 6. Certificates. The Council hereby acknowledges and consents to the assignment by the Corporation to the Trustee, pursuant to the Indenture, of all right, title and interest of the Corporation in, to and under the Lease. The Council hereby acknowledges and consents to the issuance and sale of the 1991 Certificates in the amount, bearing interest and upon the terms and conditions set forth in the Indenture. The Council hereby acknowledges and approves the forms, terms and provisions of the 1991 Certificates contained in the Indenture. The Mayor and Clerk are hereby authorized and directed to affix his or her signature or a facsimile thereof to authenticate the 1991 Certificates, as provided in the Indenture. Section 7. Qualified Tax-ExemRt Qbjiggtions. The Council hereby designates the Lease and the Certificates as qualified tax-exempt obligations pursuant to Section 265(b)(3)(B) of the Internal Revenue Code of 1986, as amended. Section 8. Execution, The Clerk is hereby authorized and directed to attest All signatures and acts of any official of the Council in connection with the matters authorized by this ordinance. The Mayor and Clerk, and other appropriate officials or agents of the Town, are hereby authorized to execute and deliver for and on behalf of the Town any and all additional certificates, documents, instruments and other papers, and to perform all other acts that they may deem necessary or appropriate, in order to implement and carry out the transactions and other matters authorized by this ordinance. The appropriate officers of the Council and the Town are authorized to execute on behalf of the Town agreements concerning the We and/or private placement of 1991 Certificates by Coughlin and the deposit and investment of funds in connection with the transactions contemplated by this ordinance. -4- Section 9. Terms of Bond Sale. The Coughlin's offer to privately place the Certificates, on the terms and conditions set forth in the Indenture is hereby accepted, and the Certificates shall be sold and delivered in accordance therewith. Section 10. Payment of Base Rentals. The Base Rentals, as defined in the Lease, shall, pursuant to Section 14.9 of the Charter, be paid from a tax levy imposed upon property included within the boundaries of the Town, or such other monies of the Town which are legally available for such purpose Section 11. Renealer. All bylaws, orders, ordinances and resolutions, or parts thereof, inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any such by-law, order, ordinance or resolution, or part thereof, heretofore repealed.. Section 12. ver bi i . If any section, subsection, paragraph, clause, or other provision of this ordinance for any reason is invalid or unenforceable, the invalidity or unenforceability of such section, subsection, paragraph, clause, or other provision shall not affect any of the remaining provisions of this ordinance. Section 13. Ordinance Irrepealable. After the Certificates are issued, this ordinance shall constitute an irrevocable contract between the Town and the registered owners of the Certificates and this ordinance shall be and shall remain irrepealable until the Certificates shall be fully paid, canceled and discharged. Section 14. Notieg o He_- a~. The Council will hold a public heating on the ordinance at a meeting of the Council to be held at the Town Hall in the Town, on 1991, being not earlier than seven days after the first publication of the ordinance, at the hour of 7;30 p.m. Section 15. Disposition of Ordinance. This ordinance, as adopted by the Council, shall be numbered and recorded by the Town Clerk on the official records of the Town. Section 16. Effective Date. This ordinance shall be in full force and effect seven (7) days after its publication by posting following final passage, adoption and approval. -S- INTRODUCED, PASSED AND APPROVED ON FIRST READING ON April 23, 1991. n w, - ~f - or FINALLY PASSED, ADOPTED AND APPROVED ON May 1991. (SEAL) Attest: Town Clerk Mayor -6- anCt)•111A m a nuvvMP'Rai The printed portions of this form appproved the Colorado Real Estate Commission CBS58• 789) I A - THIS IS A LEGAL INSTRUMENT. IF NOT UNDERSTOOD, LEGAL, TAX OR OTHER COUNSEL SHOULD SE CONSULTED BEFORE SIGNING. COMMERCIAL CONTRACT TO BUY AND SELL REAL ESTATE Seller's remedy Liquidated Damages or Specific Performance (Section 16) (FINANCING SECTIONS OMITTED) ,19CZL 1. PARTIES AND PROPERTY. The t1nwn of Axmn., a Chlnr 'AQ, llMmi n,.i 1 onnY9rA t j M purchaser(s) [Purchaser], (as joint tenants/tenants in common) agrees to buy, and the undersigned seller(s) [Seller], agrees to sell, on the terms and conditions set forth in this contract, the following described real estate in the County of Eagl-A , Colorado, to wit: A =Wlercial conAM=itml (located generally as outlined in red on the floor plan attached hereto as Exhibit A-1) comprising approximately 10,000 square feet located on the first floor of the Grand On Awn :(formerly }mown as The Peregrine) Building located in Avon, Colorado, a part of the property more particularly described on Exhibit A hereto and incorporated herein by this reference (the "Building land"). The Grand on Awn Building is referred to herein as the "Building" Ii known as No. (Stmt Addran. City, State. Zip) together with all interest of Seller in vacated streets and alleys adjacent thereto, all easements and other appurtenances thereto, all improvements thereon and all attached fixtures thereon, except as herein excluded, and called the Property. 1 INCLUSIONS. The purchase price includes the following items lighting, heating, plumbing, ventilating, and air conditioning fixtures, smoke/fire/burglar alarms, security devices, inside telephone wiring and connecting blocks/jacks, plants, floor coverings, intercom systems, built-in kitchen appliances, and sprinkler systems and controls; and (b) if on the Property whether attached or j 1 not on the date of this contract: See paragraph of the Addend= attached hereto in oonneetion'y with the improvements and personal property to be included in the purchase i and sale. j i ~j The above-described included Items (Inclusions) arc to be conveyed to Purchaserby Seller by bill of sale at the closing, free and clear of all taxes, liens and encumbrances, except as provided in section 10. The following attached fixtures are excluded from this sale: Nmin 3. PURCHASE PRICE AND TERMS. The purchase price shall be $ 1r 0QQ, 000.00 payable in U.S. dollars by Purchaser as follows (complete the applicable terms below): (a) Earreast Morley, g -0- price, payable to and held b , broker, in broker's trust (b) Crib at Closing. $ M101, [10d - 0(L to be paid by Purchaser at closing in cash, electronic transfer funds, certified check, savings and loan taller's check, or cashier's check, Such ftmds shall h . nvahl,t- nilt of an antnn m -*;%+-ab] i abed by IblrrhaaPr Anti .4e1 l Pr aq f3A__F,r_rihPr7 i n t~ra~aj~h of the I ~ A&9 mdW attached hereto. i. FINANCING CONDITIONS AND OBLIGATIONS. See paragraph of the Addendum attached hereto. I~ ,I E3NOW been ' ! S. GOOD FUNDS. All payments required at closing shall be made in funds which comply with all applicable Colorado laws. 6. NOT ASSIGNABLE. This contract shall not he assignable by Purchaser without Scllors prior written consent. Except as so restricted, this contract shall inure to the benefit of and be binding upon the heirs, personal representatives, successors and assigns of the parties, 7. EVIDENCE OF TITLE. Seller shall furnish to Purchaser, at Sellers expense, @Mar a current commitment forowner's tide insurance policy in an amount equal to the purchase price , on or before A=J 1 _ 19 Gypies of instruments (or abstracts of instruments) listed in the schedule of exceptions (Exceptions) in the title Insurance eommiunent urnished to Purchaser at Seller's expanse, This requirement shall pertain only to instruments shown of record in the office of the clerk and recorder of the designated county or counties. The title insurance commitment, together with any copies or abstracts of instruments furnished pursuant to this section 7, constitute the title documents (Title Documents). Seller will have the title insurance policy delivered to Purchaser as soon as practicable after closing and pay the premium at closing. i'. NO-421385B449. COMMERCIAL CONTRACT TO BUY AND SELL REAL ESTATE (FINANCING SECTIONS OMITTED) Bradford Publishing, 1741 Wazes St., Denver, CO 90202 - (303) 292-2500-6.89 *In addition, 8. TITLE. (a) Title Review. /Purchaser shall have the right to inspect the Title Documents tst>~ob was , Written notice by Purchaser of unmerchantability of title or of any other unsatisfactory title condition shown by the Title Documents sp.absislasl shall be signed by or on behalf of Purchaser and given to Seller or Listing Company on or before 30 T calendar days after Purchaser's receipt of Title Documents si obeitW, or within five (S) calendar days after receipt by Purchaser 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. If Seller or Listing Company does not receive Purchaser's notice by the date(s) specified above. Purchaser shall be deemed to have accepted the condition of title as disclosed by the Title Documents as satisfactory. (b) Matters Not Shown by the Public Records. Seller shall deliver to Purchaser, on or before the date set forth in section 7, true copies of all lease(s) and survey(s) in Sellerls possession pertaining to the Property and shall disclose to Purchaser all assements, liens or other title matters not shown by the public records of which Seller has actual knowledge. Purchaser shall have the right to inspect the Property to determine if any third party(&) has any right in the Property not shown by the public records (such as an unrecorded easement, unrecorded lease, or boundary line discrepancy). Written notice of any unsatisfactory condition(s) disclosed by Seller or revealed by such inspection shall be signed by or on behalf of Purchaser and given to Seller or Listing Company on or before ,19 If Seller or Listing Company does not receive Purchasert notice by said date, Purchaser shall be deemed to have accepted title subject to such rights, if any, of third parties of which Purchaser has actual knowledge. (e) Right to Cure. If Seller or Listing Company receives notice of unmerchantability of title or any other unsatisfactory title condition(s) as provided in subsection (a) or (b) above, Seller shall use reasonable effort to correct said unsatisfactory title condition(s) prior to the date of closing. If Seller fails to correct said unsatisfactory title condition(s) on or before the date of closing, this contract shall then terminate, subject to section 17; provided, however, Purchaser may, by written notice received by Seller or Listing Company on or before closing, waive objection to said unsatisfactory title condition(s). 9. DATE OF CLOSING. The date of closing shall be ,19 or by rittttual agreement at an earlier date. The hour and place of closing shall be as designated by ..t 'rn1°'A Apr 10. TRANSFER OF TITLE. Subject to tender or payment on closing as required herein and compliance by Purchaser with the other terms and provisions hereof, Seller shall execute and deliver a good and sufficient . MMPI 1 WAZZAriU deed to Purchaser, on closing, conveying the Property free and clear of all taxes except the general taxes for the year of closing, and except free and clear of all liens for special improvements installed as of the date of Purchasers signature hereon, whether assessed or not, except distribution utility easements, Including cable TV; except those matters reflected by the Title Documents accepted by Purchaser in accordance with subsection 8(a); except those rights, if any, of third parties in the Property not shown by the public records in accordance with subsection B(b); and subject to building and zoning regulations. 11. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall be paid at or before.the time of settlement from the proceeds of this transaction or from any other source. 1Z. CLOSING COSTS, DOCUMENTS AND SERVICES, Purchaser and Seller shall pay their respective closing costs at closing, except as otherwise provided herein. Purchaser and Seller shall sign and complete all customary or required documents at or before closing. Fees for real estate closing and settlement services shall be paid at closing by 13. PRORATiONS. General taxes for the year of closing, based on the most recent levy and the most recent assessment, rents, water and sewer charges, owner's association duos, and interest on continuing loan(s), if any, and shall be prorated io date of closing. Any sales, use and transfer tax that may accrue because of this transaction shall be paid by seller--- 14. POSSESSION. Possession of the Property shall be delivered to Purchaser as follows: i subject to the following lease(s) or tenaney(s): i If Seller, after closing, fails to deliver possession on the date herein specified, Seller shall be subject to eviction and shall be additionally liable to Purchaser for payment of S per day from the date of agreed possession until possession is delivered. IS. CONDITION OF AND DAMAGE TO PROPERTY. The Property and Inclusions shall be conveyed in their present condition, ordinary wear and tear excepted. In the event the Property shall be damaged by fire or other casualty prior to time of closing, in an amount of not more than ten percent of the total purchase price, Seller shall be obligated to repair the same before the date of closing. In the event such damage is not repaired within said time or if the damages exceed such sum, this contract may be terminated at the option of Purchaser. Should Purchaser elect to carry out this contract despite such damage, Purchaser shall be entitled to credit for all the insurance proceeds resulting from such damage to the Property and Inclusions, not oxeeeding, however, the total purchase price. Should any inclusion(s) or service(s) fail or be damaged between the date of this contract and the date of closing or the date of possession, whichever shall be earlier, then Seller shall be liable for the repair or replacement of such Inclusion(s) or service(s) with a unit of similar size, age and quality, or an equivalent credit, less any insurance proceeds received by Purchaser covering such repair or replacement. 16. TIME OF ESSENCEIREMEDIES. Time is of the essence hereof. If any note or check received as earnest money hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed or waived as herein provided, them shall be the following remedies: (a) IF PURCHASER IS IN DEFAULT; IF THE BOX IN SUBSECTION (1) IS CHECKED, SELLER'S REMEDIES SHALL BE AS SET FORTH IN SUBSECTION (1) (SPECIFIC PERFORMANCE]. IF SAID BOX IS NOT CHECKED, SELLER'S REMEDIES SHALL BE AS SET FORTH IN SUBSECTION (2) (LIQUIDATED DAMAGES]. ❑ (1) Specific Performance. Seller may elect to treat this contract as cancelled, in which case all payments and things of value received hereunder shall be forfeited and retained on hehal f of Seller, and Seller may recover such damages as may be proper, or Seiler may elect to treat this contract as being in full force and effect and Seller shall have the right to specific performance or damages, or both. (2) Liquidated Damages. All payments and things of value received hereunder shall be forfeited by Purchaser and retained on behalf of Seller and both parties shall thereafter be released from all obligations hereunder, It is agreed that such payments and things of value are LIQUIDATED DAMAGES and (except as provided in subsection (c)) are SELLER'S SOLE AND ONLY REMEDY for Purchaser's failure to perform the obligations of this contract. Seller expressly waives the remedies of specific performance and additional damages. (b) IF SELLER IS IN DEFAULT: Purchaser may elect to treat this contract as cancelled, in which case all payments and things of value received hereunder shall be returned and Purchaser may recover such damages as may be proper, or Purchaser may elect to treat this contract as being in full force and effect and Purchaser shall have the right to specific performance or damages, or both, (C) COSTS AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of any litigation or arbltratlon arising out of this contract, the court shall award to the prevailing party all reasonable costs and expense, including attorney fees. controversy regarding the earnest money and things of value held by broker or closing agent, unle are received by the holder of the earnest money and things of value, broker or closin c any action but may await any proceeding, or at brokers or closing agent s o do erp cad all parties and deposit any moneys or things of value into a court of competent jurisdiction and 18. INSPECTION. Purchaser or any designee, shall have the right to have inspection(s) of the physical condition of the Property and Inclusions, at Purchaser's expense. If written notice of any unsatisfactory condition, signed by Purchaser, is not received by Seller or Listing Company on or before ,19 - , the physical condition of the Property and Inclusions shall be deemed to be satisfactory to Purchaser. If written notice of any unsatisfactory condition, signed by Purchaser, Is given to Seller or Listing Company as set forth above in this section, and if Purchaser and Seller have not reached a written agreement in settlement thereof on or before ,19 , this contract shall then terminate, subject to section 17. Purchaser is responsible and shall pay for any damage which occurs to the Property and Inclusions as a result of such inspection. and its sales agents (Listing Company) represent Seller. The Listing Company owes duties of trust, loyalty and confidence to Seller on a the Listing Company has a duty to treat Purchaser honestly, the Listing Company is Seller's agent and is acting on behalf of Sel not Purchaser. BY SIGNING BELOW, PURCHASER ACKNOWLEDGES PRIOR TIMELY NOTICE BY LISTING OR S&LLIN ANY THAT LISTING COMPANY IS SELLER'S AGENT. The selling broker, and its sales agents (Selling Company) represent: [IF THE BOX IN SUASEMON (b) IS CHECKED, SELLING COMPANY REPRESENTS PURCHASER ONLY, AS SET FORTH IN SU eTi N (b). IF THE BOX IN SUBSECTION (b) IS NOT CHECKED, SELLING COMPANY REPRESENTS SEL Y, AS SET FORTH IN SUBSECTION (a).] (a) Seller. The Selling Company owes d rust, loyalty and confidence to Seller only, While the Selling Company has a duty to treat Purchaser honestly, the Selling Compan er's agent and is acting on behalf of Seller and not Purchaser. BY SIGNING BELOW, PURCHASER ACKNOWLEDGES PRIOR T OTICE BY SELLING COMPANY THAT SELLING COMPANY IS SELLER'S AGENT. ❑ (b) Pur f the box is checked: The Selling Company owes duties of trust, loyalty and confidence to Purchaser only While the Selling Com a duty to treat Seller honestly, the Selling Company is acting on behalf of Purchaser and not Seiler, SELLER AND LISTING COMPANY 20. ADDITIONAL PROVISIONS; See Addendwt to Contract attached hereto and incorporated herein by this reference. 21. RECOMMENDATION OF LEGAL COUNSEL, By signing this document, Purchaser and Seller acknowledge that the Selling Company or the Listing Company has recommended that Purchaser and Seller obtain the advice of their own legal counsel regarding examination of title and this contract, 22. TERMINATION, In the event this contract is terminated, all payments and things of value received hereunder shall be returned and the parties shall be relieved of all obligations hereunder, subject to section 17. 23. NOTICE OF ACCEPTANCE/COUNTERPARTS. If this proposal is accepted by Seller in writing and Purchaser receives notice of such acceptance on or before , 19 , this document shall become a contract between Seller and Purchaser. A copy of this document may be executed by each party, separately, and when each arty has executed a copy thereof, such copies taken together hall be deemed to be a full and complete contract between the parties. 0A r a Colorado IR inidlpal Purchaser Dace purchaser Date Purchaser's Address [TO BE COMPLETED BY SELLER AND LISTING COMPANY] 24. ACCEPTANCE/COMMISSION. Seller accepts the above proposal this day of , 19 . Seller shall pay to the Listing Company a commission of of the gross purchase price or as agreed upon between Seller and Listing Company for services in this transaction. In the event of forfoiture of payments and things of value received hereunder, such payments and things of value shall be divided between Listing ovmpagy and S ler, one-half ib;re~of~to L(st~'ni Company y~y not to exceed the commission, and the balance to Seller. l Ocl on Avon, a 1"1inne80C~ gETlts.1'al partnership l .u.r Date Seller Gerald N. Butler, ainera Partal& Seller's Address The undersigned Selling Company acknowledges receipt of the earnest money deposit specified in section 3 and both Selling Company and Listing Company confirm the respective agency disclosure set forth in section 19. Selling Company Address By: ISignatural bate Listing Company By: (slrnerurei Address Dart 7 T. -i - - _ - ri - r - - - - ADDENDUM TO COMMERCIAL CONTRACT TO BUY AND SELL REAL ESTATE DATED APRIL 1991, BY AND BETWEEN THE TOWN OF AVON, A COLORADO MUNICIPAL CORPORATION, PURCHASER, AND GRAND ON AVON, A MINNESOTA GENERAL PARTNERSHIP, SELLER This Addendum to Commercial Contract to Buy and Sell Real Estate ("Addendum") supplements and amends that certain form Commercial Contract to Buy and Sell Real Estate (the "form Contract"). In the event of a conflict between this Addendum and the form Contract the provisions of this Addendum shall prevail. Together, this Addendum and the form Contract are sometimes referred to as "this Contract". 1. Payment of Purchaser's Costs. Purchaser hereby acknowledges receipt from Seller of the sum of $5,000.00 to be used for Seller's costs in connection with preparing this Contract, and with obtaining related legal and financial advice. Seller agrees that when the Purchaser has drafted an ordinance authorizing this transaction and the financing thereof and such ordinance has been passed at first reading, Seller shall immediately thereafter pay to Purchaser an additional $5,000.00 to be used by Seller for the same purposes. In the event that for any reason Purchaser and Seller are unable to enter into this Contract or the Contract is terminated, Purchaser shall refund to Seller any unused portion of such funds, and shall provide to Seller a written accounting of its use of the remainder of such funds. 2. Depa5it_of Purchase Price into Escrow. When the ordinance authorizing this transaction and the financing thereof has been finally adopted, Purchaser shall diligently work to complete its financing and upon closing of such financing shall deposit into escrow the amount of $1,000,000, to be used for the purchase price, in accordance with the terms and conditions of an escrow agreement agreed to by the parties (the "Escrow Agreement"). Among other terms and conditions, the Escrow Agreement shall include the following provisions: a. The escrow funds shall be deposited in an interest-bearing account or accounts acceptable to Purchaser, with all interest or other income thereon for the benefit of Purchaser. b. Concurrently with the deposit of the escrow funds, Seller shall (i) pay to Purchaser an amount equal to its costs and expenses to date related to the Purchaser's proposed financing, including the costs of legal and financial advice, and Purchaser's carrying costs in connection with such money, and (ii) agree to pay any additional costs and expenses in connection therewith as and when incurred, provided Seller's obligations under this subparagraph shall not exceed $60,000. Seller's payment obligations shall be adequately secured to Purchaser's satisfaction. C. The escrow funds shall be used at the closing of this transaction provided all of the conditions of this Contract are fulfilled and Seller is ready, willing and able to perform its obligations at closing; otherwise, the escrow funds shall be released to Purchaser. d. If at anytime after the escrow is established and prior to the closing, Seller is in breach of this Contract or the Escrow Agreement, or if Purchaser reasonably concludes that the closing conditions set forth in paragraph 3 hereof will not or cannot within a reasonable time be fulfilled, Purchaser may at Purchaser's sole discretion terminate the escrow and the escrow funds, together with any interest thereon, shall be promptly returned to Purchaser. 3. Conditions of Closin¢. a. Approval of Condominium Map and Documents. The parties acknowledge that the Property to be acquired by Purchaser shall be a commercial condominium unit in a to-be-formed condominium regime. All aspects of such condominium regime, including the map, the exact location and dimensions of the Property, the articles of incorporation, the by-laws and any rules and regulations, shall be subject to Purchaser's written approval, which approval may be granted or denied in Purchaser's sole discretion. Such right of approval shall include, without limitation, the use of common areas within and around the Building and the allocations of common area costs and expenses. At, the closing, the condominium association must be operating, with adequate reserves established for taxes, insurance, replacements and maintenance, The hazard and fire insurance for the Building shall be in effect and the policies therefor shall be subject to Purchaser's approval. b. Environmental Matters. Seller shall deliver to Purchaser any and all reports, surveys or information available to Seller related to the environmental condition of the Building and the Building Land and the existence of any environmental waste or hazardous materials located on or in any way affecting the Building or Building Land, In this connection, and as an inducement to Purchaser to enter into this Contract, Seller hereby warrants that the Building and Building band are free and clear of any hazardous waste or material, that no asbestos has been used in connection with the construction of any of the improvements on the Building Land, and no use of such property is in violation of any environmental or land use laws, rules or regulations has occurred, is occurring or will be permitted. In Purchaser's sole discretion, it may obtain an environmental audit of the Building and Building Land, and if for any reason Purchaser is dissatisfied with the environmental condition thereof, Purchaser may terminate this Contract. e. Tp-free Financing. The parties acknowledge that Purchaser intends to finance its purchase of the Property with tax-free financing. Purchaser's obligations hereunder are specifically conditioned upon its obtaining such financing in a timely manner at such rates and upon terms and conditions as are acceptablc to Purchaser in its sole discretion, d. Completion of Building. In the event the Building is not yet completed when escrow opens, Purchaser shall have the right to approve the plans and specifications and budget for the completion of the Building, and shall be satisfied in its sole discretion that Seller has the ability and adequate financing to assure the timely completion of the Building in accordance with the approved plans and specifications. Prior to closing, Seller shall provide such evidence as may be reasonably required that there is no violation at the Property or the Building of zoning, building, fire, air pollution or health laws or regulations, and that there are no suits pending or threatened which could affect the Building or the Property. e. Buildout of Property. Prior to closing Seller shall have completed at Seller's expense the improvements of 5,000 square feet of the Property in accordance with plans and specifications approved by Purchaser in its sole discretion. Purchaser shall have inspected and be satisfied with the completed construction and an unconditional certificate of occupancy shall have been issued for the Property, and Purchaser shall be able to fully utilize the Property for its intended purpose without any conditions or delay whatsoever. Lien waivers shall have been obtained for all labor and material used in connection with such improvements. f. Further Agreements of Seller. Seller shall deliver into escrow, to be delivered to Purchaser at closing, written agreements in form and substance satisfactory to Purchaser, whereby Seller is obligated to pay to Purchaser after closing (i) for each year from 1991 through 1995, inclusive, an amount equal to the lesser of (a) $75,000 or (b) one-half of the purchaser's annual debt-service obligations in connection with the financing described in subparagraph 3.c. hereof, and (ii) during each year until such time as the Building is completed, assessed for property taxes purposes and taxed at full value, the amount, if any, by which $100,000 exceeds the amount of property taxes payable to the Town of Avon on account of the Building and the Building Land. Such obligations of Seller shall be adequately secured to Purchaser's satisfaction. 4. Seller's Warranties and Representations. Effective as of the date hereof, Seller warrants and represents as follows: Authority: Seller is the sole owner of the Property and possesses all right, authority and power to execute and perform this Agreement. Leases: There are no Leases, recorded or unrecorded, affecting the Property. 5. Binding Effect. This Contract shall be binding on Purchaser only when it has been authorized by all necessary action of the government of the Town of Avon. This Contract shall inure to the benefit of and be binding upon all permitted assigns and successors of the parties.