Loading...
HomeMy Public PortalAbout5a PS Agreement-frodo PURCHASE AND SALE AGREEMENT THIS AGREEMENT is by and between the TOWN OF FRASER, COLORADO, a Colorado municipal corporation ("Seller", whether one or more), and YOUNGS REAL ESTATE CO., LLC, a Colorado limited liability company, ("Purchaser@). 1.0 - AGREEMENT FOR PURCHASE AND SALE 1.1 Purchaser agrees to purchase, and Seller agrees to sell, on the terms and conditions set forth in this contract, all of the following property, located in Grand County, Colorado, to-wit: 1.1.1 Lots 14, 15, 16, 17, 18, and all that part of Lot 13 lying Northeasterly of the right of way of U.S. Highway No. 40, Block 7, FIRST ADDITION TO THE TOWN OF EASTOM, TOGETHER WITH that portion of vacated Eastom Avenue, as described in Ordinance No. 275 recorded December 11, 2001, at Reception No. 2001-012436 of the records in the office of the Clerk and Recorder of Grand County, Colorado, located adjacent to the northerly boundary of said Lots 14-18 (herein referred to as the "Property"); 1.1.2 Together with the interests, easements, rights, and benefits appurtenant thereto, except as herein excluded. 1.2 The Property is nonresidential vacant land. No fixtures, water rights or personal property are included in the sale. 2.0 - PURCHASE PRICE 2.1 The purchase price of the Property shall be Two Hundred Twenty-Six Thousand Seven Hundred Dollars and No Cents ($226,700.00,) payable in U.S. dollars by Purchaser as follows: 2.1.1 Earnest Money: Twenty Thousand Dollars and No Cents ($20,000.00), in the form of a check from Purchaser, shall be paid concurrently with the execution of this Agreement, to be held by the Title Company and credited to the purchase price at closing. 2.1.2 Cash at Closing: The balance of the purchase price ($206,700.00) shall be paid by Purchaser at closing in funds which comply with all applicable Colorado laws, which include cash, electronic transfer funds, certified check, savings and loan teller's check, and cashier's check (Good Funds). Purchaser & Sale Agreement Page 2 of 78 3.0 - TITLE INSURANCE; INSPECTION 3.1 Title insurance and closing services, as contemplated by this Contract, shall be provided by Title Company of the Rockies, Winter Park office (ATitle Company@), unless otherwise agreed to in writing by Seller and Purchaser. 3.2 Within fifteen (15) days after execution of this Agreement by all parties, Seller shall furnish to Purchaser, at Seller’s expense, a current commitment for owner’s title insurance policy issued by Title Company in the amount of the purchase price, together with a copy of the instruments (or abstract of instruments) listed in the schedule of exceptions (“Exceptions”) in the title insurance commitment, which are of record in the office of the clerk and recorder of Grand County (the “Title Documents”). 3.3 Purchaser shall have the right to inspect the Title Documents. Written notice by Purchaser of unmerchantability of title or of any other unsatisfactory title condition shown by the Title Documents shall be signed by or on behalf of Purchaser and given to Seller or Seller’s Attorney within five (5) calendar days after Purchaser’s receipt of Title Documents, or within five (5) calendar days (or at closing, whichever is earlier) 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 Exceptions(s) to title. If Seller does not receive Purchaser’s written notice by the applicable date specified above, Purchaser shall be deemed to have accepted the condition of title as disclosed by the Title Documents as satisfactory. 3.4 Seller shall be responsible for payment of the normal premium for the owner=s title insurance policy at closing. If Purchaser wishes to obtain an endorsement deleting the survey exceptions (standard exceptions No. 1, 2 and 3) and/or the mechanic's lien exception (standard exception No. 4) from Schedule B of the title insurance policy, then Purchaser shall be responsible for paying any additional premium or other costs and complying with any additional requirements for obtaining the deletion of such exceptions. 3.5 Purchaser shall have the right to inspect the physical condition of the Property, or to obtain a survey of the Property, at Purchaser's expense. Purchaser may give written notice of any unsatisfactory conditions revealed by such inspection or survey not later than five (5) days prior to closing. If no such notice is given, Purchaser shall be conclusively deemed to have accepted the physical condition of Property. 3.6 If notice of unsatisfactory title condition, or unsatisfactory condition revealed by inspection or survey is given by Purchaser as provided in this Article, Seller shall use reasonable efforts to correct said unsatisfactory title or other condition(s) prior to the date Purchaser & Sale Agreement Page 3 of 78 of closing. If Seller fails to correct said unsatisfactory condition(s) or if the parties do not otherwise reach agreement regarding a resolution of such conditions on or before the date set for closing, then this Agreement shall terminate as of the date set for closing and Purchaser's earnest money shall be refunded, without interest. The parties shall thereupon be released of all further obligations hereunder. 4.0 - CLOSING 4.1 Closing shall be held on February 28, 2017, or by mutual agreement at an earlier date, at the office of Title Company located at 78491 U.S. Highway 40, Winter Park, Colorado, at a time designated by Title Company. 4.2 The closing shall be conducted by Title Company, whose closing fee shall be paid 50% by Purchaser and 50% by Seller. Seller and Purchaser shall complete and sign all customary or required documents at or before closing. 4.3 Possession of the Property shall be delivered to Purchaser at closing, free of leases and tenancies. If Seller fails to deliver possession at that time, Seller shall be subject to eviction and shall be additionally liable to Purchaser for payment of Fifty Dollars and No Cents ($50.00) per day as liquidated damages, until possession is delivered. 4.4 Subject to payment or tender of the purchase price, and compliance with the other terms and conditions herein by Purchaser, Seller shall convey merchantable title to the Property to Purchaser by executing and delivering to Purchaser, at closing, a general warranty deed conveying title to the Property free and clear of all taxes, except real property taxes for the year of closing, free and clear of all liens and encumbrances, and subject only to apparent easements and the Schedule B, Section 2 exceptions in the title insurance commitments issued pursuant to Article 3, and subject to the covenants, conditions and restrictions provided in Section 6.2 hereof. 5.0 - DEFAULT/REMEDIES 5.1 Time is of the essence hereof. If any payment due on or before closing is not paid, honored or tendered when due, or if any other obligation hereunder is not performed as herein provided, there shall be the following remedies: 5.1.1 IF PURCHASER IS IN DEFAULT, then Seller may declare this Agreement terminated and retain the earnest money paid by Purchaser as liquidated damages. Except as otherwise provided in Section 5.2 and Article 6.0, retention of such liquidated damages is Seller=S SOLE AND ONLY REMEDY against Purchaser for Purchaser & Sale Agreement Page 4 of 78 Purchaser=s failure to perform the obligations of this Agreement arising prior to or as of closing. 5.1.2 IF SELLER IS IN DEFAULT, (a) Purchaser may elect to treat this Agreement as terminated, in which case Purchaser's earnest money shall be returned to Purchaser; or (b) Purchaser may elect to treat this Agreement as being in full force and effect, and Purchaser shall have the right to an action for specific performance or damages, or both. 5.2 In the event of any litigation arising out of this Agreement, the court shall award to the prevailing party all reasonable costs and expenses, including attorney fees. 6.0 - PURCHASER'S COVENANTS; USE AND DEVELOPMENT OF PROPERTY 6.1 As partial consideration for the purchase of the Property, Purchaser covenants and agrees to proceed with commercial development of the property as a distillery and tasting facility, which may also include a restaurant/bar and related facilities, encompassing approximately 3,300 square feet of finished commercial space, in accordance with the conceptual plans previously submitted to Seller. 6.1.1 Purchaser understands and agrees that development of the property will require obtaining a development permit in accordance with the requirements of the Fraser Municipal Code and compliance with all other applicable regulations. Purchaser agrees to promptly submit and pursue to completion an application to obtain such development permit and to comply with all applicable requirements for the issuance of such permit. Purchaser further agrees that the conditions for the issuance of such development permit shall include a requirement that Purchaser execute a Construction Guarantee Agreement, with appropriate security, in a form and content specified by Fraser and to be completed and executed by the parties in good faith, to guarantee construction of the distillery and related facilities and necessary infrastructure, and to secure restoration of the property in the event such construction is not completed. Such Construction Guarantee Agreement will require that Purchaser commence construction of the facilities and infrastructure within two (2) years after the date of the closing hereunder and to substantially complete such construction within four (4) years after the date of such closing. 6.1.2 Anything contained herein to the contrary notwithstanding, Seller makes no representations or promises with regard to the issuance of such development permit or any additional conditions that may be attached thereto. Such matters are within the exclusive jurisdiction of the planning and zoning authorities of the Town of Fraser. 6.1.3 If the final development plans for the Property reasonably require an access Purchaser & Sale Agreement Page 5 of 78 right-of-way along the easterly boundary of the Property, Seller agrees that it will grant a non-exclusive easement for such access over and across the adjacent Lot 19, Block 7, First Addition to the Town of Eastom, which is now owned by Seller, subject to such terms as Seller deems appropriate. Purchaser shall be responsible for any infrastructure improvements that may be needed with respect to such access right-of-way. 6.2 As additional consideration for the purchase of the Property, Purchaser agrees that the Property shall be subject to a use restriction for a period of fifteen (15ten (10) years after the date of closing, which restriction shall be in addition to any zoning or other restrictions affecting the Property. Specifically, the warranty deed conveying the Property to Purchaser shall include a covenant, condition and restriction in substantially the following form: "Said Property is conveyed to Grantee subject to the following covenants, conditions and restrictions: 1. Use of Property. The Property shall be used solely for the construction and operation of a distillery and tasting facilityroom, which may also include a brewery, brewpub, restaurant/, bar, retail space, medical and/or professional offices, and related facilities, for commercial purposes. No other uses shall be permitted except upon the written approval of the Board of Trustees of the Town of Fraser, Colorado. 2. Remedies. Grantee acknowledges, by its acceptance of this Deed and taking possession of the Property, that a breach of, or failure to comply with the covenants, conditions and restrictions applicable to the Property which are in this Deed will result in irreparable harm to Grantor not compensable by money damages. Accordingly, if there is a breach of or failure to comply with any such covenants, conditions and restrictions, then Grantor shall be entitled to an injunction ordering specific performance of such covenants, conditions and restrictions, and prohibiting any breach thereof. If court proceedings are required to enforce any of the rights under this Deed, the prevailing party shall be entitled to recover its costs and expenses in connection therewith including without limitation, reasonable attorneys' fees. 3. Covenants to Run with Land. The covenants, conditions and restrictions contained in this Deed touch and concern the Property, and the burden of such covenants, conditions and restrictions shall run with the Property and bind all successors and assigns of Grantee and all subsequent owners of any portion of the Property. The benefit of such covenants, conditions and restrictions shall run to, and such covenants, conditions and restrictions may be enforced by Grantor and successor to Grantor by consolidation or merger, and any other successor or assign of Grantor to Purchaser & Sale Agreement Page 6 of 78 the extent that the rights of Grantor hereunder are specifically assigned by a written instrument. The forgoing covenants, conditions and restrictions relating to the use of the Property shall terminate upon the expiration of fifteen (15ten (10) years after the date of this Deed." 7.0 - DISCLOSURES; REPRESENTATIONS 7.1 Purchaser agrees that the Property is not residential real property, and that Seller is not obligated to furnish to Purchaser the residential property disclosures provided in Article 35.7, Title 38 of the Colorado Revised Statutes. 7.2 Seller makes no representation or warranty, express or implied, with respect to the condition or use that may be made of the Property, including without limitation, the status of water and sewer infrastructure necessary to serve the Property. It is the sole responsibility of Purchaser to investigate and determine the suitability of the Property for Purchaser's intended purposes. 8.0 - NOTICE 8.1 Any notice hereunder shall be given in writing to the party for whom it is intended, either in person or by U. S. Mail, certified mail, return receipt requested (or if not available, its equivalent), at the following addresses, or such future addresses as may be designated in writing by notice given as provided in this Article: To Seller: Town of Fraser, Colorado Attn: Town Manager P.O. Box 370 Fraser, CO 80442 To Purchaser: Youngs Real Estate Co., LLC P.O. Box 186 Fraser, CO 80442 Notice shall be deemed to have been received when delivered, if notice is given by personal delivery; or if mailed, three (3) days after the same is deposited in the U. S. Mail, properly addressed, postage prepaid. 9.0 - ADDITIONAL PROVISIONS Purchaser & Sale Agreement Page 7 of 78 9.1 Purchaser may not assign Purchaser's interests under this Agreement, in whole or in part, without Seller's prior written consent. 9.2 Purchaser may not record this Agreement in the office of the Grand County Clerk and Recorder prior to the date of closing. In the event Purchaser does record it prior to that date, it shall become null and void upon the moment of recording and Purchaser’s earnest money shall be promptly forfeited to Seller. 9.3 This Agreement and all documents executed at closing or otherwise in connection herewith shall be construed under and shall be governed by the laws of the State of Colorado. The state courts of Grand County, Colorado shall have exclusive venue and jurisdiction over any court action arising hereunder. 9.4 This Agreement embodies the entire agreement and understanding between the parties relating to the purchase and sale of the Property and may not be altered or amended except by a writing signed by all parties and specifically referring hereto. 9.5 Any provisions of this Agreement and the closing documents, including the covenants and conditions referred to in Article 6.0, which contemplate performance subsequent to closing shall not merge in the closing documents, but shall survive the closing and continue to be binding upon the party from whom the performance is due until fully performed. 9.6 Each party represents to the other that they have not dealt with any real estate broker with respect to this transaction and that no commission or finder's fee is payable to anyone as a result of this transaction. 9.7 This Agreement may be executed in counterparts, and upon execution of such counterparts by all parties, this Agreement shall be binding upon the parties as if each had executed a single original. Facsimiles of original signatures and of executed counterparts shall be treated as originals. This Agreement must be approved and executed by all parties on or before 12 o'clock midnight on January 20, 2017; otherwise it shall be null and void. IN WITNESS WHEREOF, the parties have hereunder subscribed their signatures on the dates indicated below their signatures. Purchaser & Sale Agreement Page 8 of 78 SELLER The Town of Fraser, Colorado, a Colorado municipal corporation BY:__________________________________ Jeff Durbin, Town Manager DATE: _____________________________ PURCHASER Youngs Real Estate Co., LLC, a Colorado limited liability company BY: ________________________________ Barry Young, Member-Manager BY: ________________________________ Debra Young, Member-Manager DATE: ____________________________