HomeMy WebLinkAboutBriar Patch Association Conveyance to the Town (2)
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Briar Patch Association Conveyance to the Town
George Ruther
St. Charles, Wendy R.
George Ruther
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wstcharles@shermanhoward.com
Briar Patch Association Conveyance to the Town
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Subject: Briar Patch Association Conveyance to the Town
Date: Tue, 26 Apr 2011 16:55:37 -0600
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St. Charles, Wendy R.
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Matt Mire
George Ruther
Briar Patch Association Conveyance to the Town
George - Attached is the draft purchase contract. I want to run through it with you before sending it on to the client for final approval. Please call me to discuss at your convenience.
Regards,
Wendy
Wendy R. St. Charles
*********************
Wendy R. St. Charles, Esq.; Sherman & Howard L.L.C.; 1000 S. Frontage Rd. W., Suite 200; Vail, CO 81657
Direct Dial: 970-790-1612; Fax: 970-476-7118; wstcharles@shermanhoward.com
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George Ruther
George Ruther
wstcharles@shermanhoward.com
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George Ruther
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George Ruther
Matt Mire
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MMire@vailgov.com
Matt Mire
Purchase Contract (2).DOC.DOCPURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (“Agreement”) is made as of April __, 2011 (the “Effective Date”), by and between Briar Patch Association, a Colorado nonprofit association (the “Association”),
and the town of Vail, Colorado, a municipality existing under the Colorado Municipal Home Rule Act (the “Town”).
W I T N E S S E T H:
The Association is the governing homeowners association for “The Residences at Briar Patch Association,” a subdivision situated in Vail, Colorado (the “Briar Patch Subdivision”), and
as such owns the common area designated as “Parcel F” within the Briar Patch Subdivision. Parcel F and the Briar Patch Subdivision are depicted on the plat known as the “Fourth Amendment
to Residences of Briar Patch,” plat a copy of which is attached hereto as Exhibit A (the “Existing Plat”). The Briar Patch Subdivision is governed by the “The Restated Declaration of
Protective Covenants for The Residences at Briar Patch” dated September 16, 1994, and recorded October 6, 1994, at Book 651, Page 821, under Reception No. 547859 in Eagle County, Colorado
(the "Existing Declaration").
The Town has determined that a portion of Parcel F in the Briar Patch Subdivision contains potential rockfall hazards that require mitigation to preserve and protect the community below.
The potential rockfall hazard area consists of approximately 3.291 acres and is depicted as “Parcel G” on the proposed replat of the Briar Patch Subdivision, referenced as the “Fifth
Amendment to the Residences at Briar Patch,” plat attached hereto as Exhibit B. The area depicted as “Parcel H” on Exhibit B consists of approximately .32 acres and provides access
to Parcel G from Buffehr Creek Road above.
The Association desires to convey Parcel G and Parcel H to the Town, consisting collectively of approximately 3.611 acres (collectively, the “Town Parcel”), so to enable the Town to
manage the potential rockfall hazard area into the future and the Town desires to acquire the Town Parcel for such purpose, on the terms set forth herein.
A G R E E M E N T
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein set forth, and of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Association and the Town agree as follows:
Sale and Purchase. The Purchase Price for the Town Parcel shall be Two Hundred Eighty Thousand Dollars and 00/100 (US) ($280,000.00) (the “Purchase Price”). The Purchase Price shall
be allocated to Parcel G, with Parcel H being donated to the Town by the Association and its Owners at no additional cost.
Payment of Purchase Price. The Purchase Price shall be payable by the Town to the Association in good funds at Closing.
Due Diligence Period. The Town has previously undertaken studies to determine the risk posed by the rockfall hazard area and the need to manage mitigation through engineering studies.
Thus, the Town has concluded its interest in and the suitability of the Town Parcel and the Town desires to proceed to closing on the term of this Agreement.
Contingencies to the Conveyance. The Association’s and the Town’s obligations at Closing are conditioned upon the following:
Title Matters. The Association shall convey title to the Town Parcel to the Town by “general warranty deed” delivered at Closing, with the Town’s title in the property being subject
only to the Schedule B-2 exceptions shown in the “Title Commitment,” attached hereto as Exhibit C (the “Permitted Exceptions”). The Title Commitment is an extended coverage form of
commitment for an owner’s policy of title insurance in the amount of the Purchase Price, committing the “Title Company” to insure the Town as fee simple owner of the Town Parcel, with
the standard exceptions be deleted at Closing.
Replat. The Association, through the “Owners” (as defined in the Existing Declaration), apart from the conveyance of the Town Parcel to the Town, has elected to amend the Existing Plat
to provide for, among other matters, the creation of legal single-family lots for the single-family parcel owners in the Briar Patch Subdivision by the Fifth Amendment to the Residence
at Briar Patch, plat attached as Exhibit B (the “Amended Plat”). The Association’s obligation to close on the conveyance to the Town is contingent upon final approval and recording
of the Amended Plat, a draft of which is attached hereto as Exhibit B, pursuant to which the Town Parcel will be created as a separate legal parcel for conveyance to the Town. The Association
and the Town agree to cooperate in submitting a joint application for review of the Amended Plat, it being the understanding and agreement between the Town and the Association that the
Amended Plat must be submitted for review and approval and that no approval of the Amended Plat is assured by the Town. It is intended by the parties that the Amended Plat will create
a separate legal parcel (or parcels) for the land to be conveyed to the Town as the Town Parcel and that the Amended Plat will create legal lots (as opposed to the existing building
envelopes parcels) for the five single-family residences in the Briar Patch Subdivision.
No Rezoning of the Subdivision. The Association and the Town agree that there will be no change in zoning to the Briar Patch Subdivision that will remain after the Town Parcel is created.
The Town Parcel shall be conveyed free and clear of the covenants and restrictions pertaining to the Briar Patch Subdivision under the Existing Declaration and the Amended Declaration,
when recorded, but will remain subject to the covenants contained in this Agreement, which shall be recited in the deed delivered at Closing.
Buffehr Creek Road Right-of Way. At the request of the Association The Town has reviewed a request to vacate the right-of-way along Buffehr Creek Road but as a matter of current policy
will not do so at this time. However, the Town will review with the Association the potential to limit the existing revocable easement benefitting Parcel A to specify those instances
in which the driveway easement may be revoked, and in all events to provide for alternative reasonable access to Parcel A from Buffehr Creek Road.
Town Parcel Covenants. The Town Parcel will be rezoned to a “Natural Area Preservation” classification. No public or recreation access will be allowed, given the potentially hazardous
nature of the area, and no improvements of any nature will be allowed to be constructed in the future with the exception of horizontal or in ground, such that the only activity to occur
on the land installations for mitigation of the rockfall hazard. No vertical improvements will be installed at any time, including with respect to the rockfall hazard mitigation to
preserve the natural state of the Town Parcel, provided that the Town shall not be precluded from installing vertical improvements below the lower ridge line (the location of which shall
be marked on the Amended Plat) if the stability of the hillside should become compromised by a significant natural event and other available forms of mitigating the risk associated with
falling rocks (such as mesh application and nailing of rocks) cannot be reasonably implemented.
Sharing of Expenses. Given the shared benefit of the Amended Plat to the Association and the Town, by creating the Town Parcel for the conveyance to the Town and the single-family
lots for the Briar Patch Subdivision single-family parcel owners, the Association and the Town agree to share equally in the expenses associated with the Amended Plat and the conveyance
(including without limitation, surveying, legal and title), provided that in no event shall the Town’s portion of such expenses exceed $10,000.00, collectively.
Amendment to Declaration. The Association is in the process of amending the Existing Declaration by recording the “Second Amended and Restated Declaration of Covenants, Conditions,
Restrictions and Easements for The Residences at Briar Patch” (the “Amended Declaration”), which shall occur as a condition of Closing. The Amended Declaration shall confirm the approval
and authority granted by the members of the Association for the Association to convey the Town Parcel (or a substantially similar area of Parcel F as may be finally identified on the
Amended Plat) to the Town, and that such conveyance shall be free from the covenants, rights and obligations under the Existing Declaration and Amended Declaration, when recorded.
Amended Plat Application. Upon execution of this Agreement by the Town and the Association, the Town will proceed with assisting in the preparation of the application for the Amended
Replat.
Closing. Closing shall occur within ten (10) days of final approval and recording of the Amended Plat. If Closing has not occurred by July 15, 2011, either party may at any time thereafter
by written notice of not less than ten (10) business days to the other party, terminate this Agreement, whereupon the Town and the Association shall have no further obligation to each
other, provided that each party shall be obligated to proceed to Closing, subject to satisfaction of the contingencies set forth in Section 4 above.
At Closing, the following actions shall occur, all being considered as taking place simultaneously:
The Association will execute, acknowledge and deliver to the Town a good and sufficient general warranty deed conveying the Town Parcel to the Town, free and clear of all encumbrances,
other than the Permitted Exceptions.
Land Title Guarantee Company (the “Title Company”) shall conduct the Closing and shall be prepared to issue the owner’s title policy insuring the Town’s title in the Town Parcel as provided
in the Title Commitment, subject only to the Permitted Exceptions (the “Owner’s Title Policy”).
The Town shall deliver the Purchase Price in good funds to the Title Company for disbursement to the Association, which may be by wire transfer, pursuant to instructions provided by
the Association.
Each party shall execute and deliver to the other any and all other documents required to consummate the transaction contemplated by this Agreement.
Prorations and Costs of Closing. All taxes and assessments applicable to the Town Parcel shall be paid to date by the Association as of the date of Closing. The Closing fee that may
be charged by the Title Company shall be paid one-half by the Association and one-half by the Town. The cost of the Owner’s Title Policy shall be paid by the Association. The Association
and the Town shall bear their own legal fees associated with the Closing.
The Association’s Representations and Warranties. The Association represents and warrants to the Town currently and as of Closing that:
Authority. As of the recording of the Amended Declaration, the Association has full authority to act on behalf of the Owners to enter into and consummate the transaction contemplated
by this Agreement.
Title to the Property. The Association has good and marketable title to Parcel F, free and clear of all liens.
The Town’s Representations and Warranties. the Town represents and warrants to the Association currently and as of Closing that Stan Zemler is authorized to execute this agreement on
behalf of the Town. No other action by the Town is necessary to authorize the execution and delivery of this Agreement by the Town, the performance by the Town of its obligations set
forth in this Agreement or the consummation by the Town of the transaction contemplated by this Agreement.
As Is Purchase. The Town acknowledges and agrees that it is purchasing the Town Parcel “as is, where is and with all faults” based upon its own inspections that, the Association is
making no representations or warranties of any kind, either expressed or implied, to the Town including, without limitation, as to the physical condition of the property, and that as
of Closing the Town releases, disclaims and waives any and all claims that it has or may have in the future against the Association and the Association’s agents as to the property being
conveyed, excepting claims arising by virtue of the warranty of title under the general warranty deed delivered at Closing.
Risk of Loss, Possession and Delivery. Possession of the Town Parcel shall be transferred to the Town at Closing, and the risk of loss shall shift to the Town at that time.
Default. If either party defaults in its obligations under this Agreement, the non-breaching party shall also have the right to seek specific performance and recover from the breaching
party reasonable attorneys’ fees and costs of enforcement or terminate the Agreement by written notice. Notwithstanding the above, prior to exercising any remedy hereunder, notice and
a thirty (30) day period to cure shall be given to the defaulting party.
Commissions. There no broker commissions or other commissions of any nature due with respect to the transaction contemplated under this Agreement.
Notices. All notices and any other communications required or permitted hereunder will be in writing and shall be delivered personally or by overnight courier or sent postage prepaid
by United States certified mail, return receipt requested, addressed to the parties at their respective addresses below:
If to the Town: Stan Zemler, Town Manager
Town of Vail
75 South Frontage Road
Vail, CO 81657
With a copy to: George Ruther, AICP, Director
Town of Vail
Community Development Department
75 South Frontage Road
Vail, CO 81657
With a copy to: Matt Mire, Town Attorney
Town of Vail
Community Development Department
75 South Frontage Road
Vail, CO 81657
If to The Association: Briar Patch Association c/o Thomas Bogard 920 Shady Oak Lane Castle Rock, CO 80108
With a copy to: Wendy R. St. Charles, Esq. Sherman & Howard L.L.C. 1000 S. Frontage Rd. W. Suite 200 Vail, CO 81657 Direct Dial: 970-790-1612 Fax: 970-476-711 wstcharles@shermanhoward.com
In the event such notice is delivered personally or by overnight courier, the date of actual delivery will fix the time thereof. In the event notice is given or delivered by certified
mail, such notice will be deemed given or delivered three (3) business days after the date on which the notice is deposited in the United States mail.
Survival of Representations. All representations and warranties contained in this Agreement shall survive Closing.
Counterpart and Facsimile. This Agreement may be signed in counterparts. A facsimile transmission of a signature or signatures on this Agreement will be deemed original.
Miscellaneous Provisions. This Agreement (a) constitutes the entire agreement between the Association and the Town respecting the sale and purchase of the Town Parcel, and supersedes
and replaces any and all prior and contemporaneous written and oral agreements, promises, representations, or conditions with respect thereto; (b) shall be construed and enforced in
accordance with the laws of the State of Colorado; (c) may be modified only by a writing duly executed by the parties; (d) may not be assigned or delegated by either party without the
consent of the other party. Any purported assignment without such consent shall be void and shall entitle the other party to the remedies allowed herein for a default in the performance
of this Agreement.
[Signature Page Follows]
The parties have executed this Agreement as of the day and year first above written.
THE TOWN:
VAIL, Colorado,
a municipality of the State of Colorado
By:
Name: Stan Zemler
Office Held: Town Manager
THE ASSOCIATION:
BRIAR PATCH ASSOCIATION, a Colorado nonprofit association
By:
Name: Thomas Bogard
Its: President
List of Exhibits:
Exhibit A – Fourth Amendment to The Residences at Briar Patch Plat
Exhibit B – Fifth Amendment to The Residences at Briar Patch Plat
Exhibit C – Title Commitment – Town Parcel Conveyance
BUS_RE\3921973.1
.DOC
Purcha~1.DOC
Purchase Contract (2).DOC.DOC
application/msword
24991B401E70B54ABAC54EA3710DD574@vailgov.local