HomeMy WebLinkAbout2022 Resolution No. 0181/2
RESOLUTION NO. 18
SERIES OF 2022
A RESOLUTION AUTHORIZING THE EXECUTION OF A
CONTRACT AND ACQUISITION IN THE AMOUNT OF $5,507,
893.75 FOR 4390 S. WINDERMERE ST., ENGLEWOOD, FOR THE
CONSTRUCTION OF A DETENTION POND AS PART OF THE
SOUTH ENGLEWOOD FLOOD REDUCTION PROJECT
(STORMWATER MASTER PLAN PROJECTS S1 AND S2).
WHEREAS, in July 2018, the southern portion of the City of Englewood
experienced a significant storm event that caused wide-spread flooding of private
property; and
WHEREAS, in July 2019, the city experienced the fourth of several sinkholes
over an approximate 10-year period when a section of the existing storm sewer outfall
pipe collapsed on Oxford Avenue, west of Santa Fe Drive, resulting in a 2-month street
closure and repair; and
WHEREAS, in response, the City completed a Stormwater Analysis and
Alternatives Feasibility Study for all flood-prone areas, identified and prioritized various
capital infrastructure projects, and ultimately prepared a Stormwater Master Plan; and
WHEREAS, the Plan identified $115,280,000 in needed improvements over a
15-year period, based on available funding; and
WHEREAS, the South Englewood Flood Reduction Project (Stormwater Master
Plan Projects S1 and S2) is an identified necessary improvement to eliminate bottlenecks
in the existing storm sewer system that creates backups and flooding during major rain
events; and
WHEREAS, a final Feasibility Report confirmed that construction of a detention
pond is the most feasible and cost-effective method to resolve this issue; and
WHEREAS, the next step of this project is to acquire the property necessary to
construct the detention pond; and
WHEREAS, the attached agreement authorizes the City to acquire 4390 S.
Windermere, the largest property necessary for detention pond construction and
placement; and
WHEREAS, the owner of the property and occupants with common ownership,
4390 South Windermere, LLC, Richard O’Brien Companies, Inc., and SOB Management
LLC, have agreed to voluntarily transfer ownership and possession under the terms and
conditions of the attached agreement.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1. The Englewood City Council hereby authorizes the acquisition of
4390 South Windermere St., Englewood, at a price not to exceed $5,507,893.75, and the
execution of a Contract to Buy and Sell Real Estate (Commercial) with 4390 South
Windermere, LLC, Richard O’Brien Companies, Inc., and SOB Management LLC. The
contract shall be in substantially the same form as the attached, which is incorporated by
referenced as if fully set forth herein.
Section 2. Approval of Miscellaneous Documents. The Mayor is hereby
authorized and directed to execute the contract and all documents and certificates
necessary or desirable to effectuate the acquisition of the property contemplated by this
Resolution, and the City Clerk is hereby authorized and directed to attest to such
execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro
Tem is hereby authorized to execute the above-referenced contract, documents and
certificates. The execution of any contract, documents and certificates by said officials
shall be conclusive evidence of the approval by the City of such contract, documents and
certificates in accordance with the terms thereof and this Resolution. City staff is further
authorized to take additional actions as may be necessary to implement the provisions of
this Resolution.
ADOPTED AND APPROVED this 18th day of April, 2022.
Othoniel Sierra, Mayor
ATTEST:
__________________________________
Stephanie Carlile, City Clerk
I, Stephanie Carlile, City Clerk for the City of Englewood, Colorado, hereby certify
the above is a true copy of Resolution No. 18, Series of 2022.
Stephanie Carlile
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1
2
3
4 THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR
5 OTHER COUNSEL BEFORE SIGNING.
6
7 CONTRACT TO BUY AND SELL REAL ESTATE
8 (COMMERCIAL)
9 ( Property with No Residences)
10 ( Property with Residences-Residential Addendum Attached)
11
12 Date:
13
14 1. AGREEMENT. Buyer agrees to buy and Seller agrees to sell the Property described below on the terms and conditions set
15 forth in this contract (Contract).
16 2. PARTIES AND PROPERTY.
17 2.1. Buyer. CITY OF ENGLEWOOD, a home rule municipal corporation of the State of Colorado, (Buyer) will take title
18 to the Property described below.
19 2.2. No Assignability. This Contract IS NOT assignable by Buyer unless otherwise specified in Additional Provisions.
20 2.3. Seller. 4390 South Windermere, LLC (
21 Seller) is the current owner of the Property described below.
22 2.4. Property. The Property is the following legally described real estate in the County of Arapahoe, Colorado
23 (insert legal description): 146,145 sq. ft. of Land (described in attached Exhibit “A”); and Improvements: 2,283 sf office building,
24 22,578 sf warehouse and shop structure, 2,484 sf metal wash bay building and diesel fuel island
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26
27
28
29 known as: 4390 S. Windermere, Englewood CO 80110 ,
30 Street Address City State Zip
31 together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto and all interest of
32 Seller in vacated streets and alleys adjacent thereto, except as herein excluded (Property).
33 2.5. Inclusions. The Purchase Price includes the following items (Inclusions):
34 2.5.1. Inclusions – Attached. If attached to the Property on the date of this Contract, the following items are
35 included unless excluded under Exclusions: lighting, heating, plumbing, ventilating and air conditioning units, TV antennas, inside
36 telephone, network and coaxial (cable) wiring and connecting blocks/jacks, plants, mirrors, floor coverings, intercom systems, built-
37 in kitchen appliances, sprinkler systems and controls, built-in vacuum systems (including accessories) and garage door openers
38 (including n/a remote controls). If checked, the following are owned by the Seller and included: Solar Panels Water
39 Softeners Security Systems Satellite Systems (including satellite dishes). Leased items should be listed under § 2.5.7.
40 (Leased Items). If any additional items are attached to the Property after the date of this Contract, such additional items are also
41 included in the Purchase Price.
42 2.5.2. Inclusions – Not Attached. If on the Property, whether attached or not, on the date of this Contract, the
43 following items are included unless excluded under Exclusions: storm windows, storm doors, window and porch shades, awnings,
44 blinds, screens, window coverings and treatments, curtain rods, drapery rods, fireplace inserts, fireplace screens, fireplace grates,
45 heating stoves, storage sheds, carbon monoxide alarms, smoke/fire detectors and all keys.
46 2.5.3. Other Inclusions. The following items, whether fixtures or personal property, are also included in the
47 Purchase Price: N/A, except as described in 2.4 above
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52
AGREEMENT
The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission .
(CBS3-6-21) (Mandatory 1-22)
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53 2.5.4. Encumbered Inclusions. Any Inclusions owned by Seller (e.g., owned solar panels) must be conveyed at
54 Closing by Seller free and clear of all taxes (except personal property and general real estate taxes for the year of Closing), liens and
55 encumbrances, except: N/A
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57
58
59 2.5.5. Personal Property Conveyance. Conveyance of all personal property will be by bill of sale or other
60 applicable legal instrument.
61 2.5.6. Parking and Storage Facilities. The use or ownership of the following parking facilities:
62 N/A ; and the use or ownership of the following storage facilities: N/A .
63 Note to Buyer: If exact rights to the parking and storage facilities is a concern to Buyer, Buyer should investigate.
64 2.5.7. Leased Items. The following personal property is currently leased to Seller which will be transferred to Buyer
65 at Closing (Leased Items): N/A
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67
68
69 2.5.8. Trade Fixtures. With respect to trade fixtures, Seller and Buyer agree as follows: N/A
70
71
72
73 The trade fixtures to be conveyed at Closing will be conveyed by Seller free and clear of all taxes (except personal
74 property taxes for the year of Closing), liens and encumbrances, except N/A . Conveyance
75 will be by bill of sale or other applicable legal instrument.
76 2.6. Exclusions. The following items are excluded (Exclusions): N/A
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78
79
80 2.7. Water Rights/Well Rights.
81 2.7.1. Deeded Water Rights. The following legally described water rights: N/A
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83
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85 Any deeded water rights will be conveyed by a good and sufficient N/A deed at Closing.
86 2.7.2. Other Rights Relating to Water. The following rights relating to water not included in §§ 2.7.1., 2.7.3. and
87 2.7.4., will be transferred to Buyer at Closing: Seller shall convey to Buyer all water rights that accrue to the owner of the
88 Property; Seller is not retaining ownership of water rights regarding the Property, if any
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90
91
92 2.7.3. Well Rights. Seller agrees to supply required information to Buyer about the well. Buyer understands that if
93 the well to be transferred is a “Small Capacity Well” or a “Domestic Exempt Water Well” used for ordinary household purposes,
94 Buyer must, prior to or at Closing, complete a Change in Ownership form for the well. If an existing well has not been registered
95 with the Colorado Division of Water Resources in the Department of Natural Resources (Division), Buyer must complete a
96 registration of existing well form for the well and pay the cost of registration. If no person will be providing a closing service in
97 connection with the transaction, Buyer must file the form with the Division within sixty days after Closing. The Well Permit # is
98 N/A .
99 2.7.4. Water Stock Certificates. The water stock certificates to be transferred at Closing are as follows: N/A
100
101
102
103 2.7.5. Conveyance. If Buyer is to receive any rights to water pursuant to § 2.7.2. (Other Rights Relating to Water),
104 § 2.7.3. (Well Rights), or § 2.7.4. (Water Stock Certificates), Seller agrees to convey such rights to Buyer by executing the applicable
105 legal instrument at Closing.
106 2.7.6. Water Rights Review. Buyer Does Not have a Right to Terminate if examination of the Water
107 Rights is unsatisfactory to Buyer on or before the Water Rights Examination Deadline. N/A
108 3. DATES, DEADLINES AND APPLICABILITY.
109 3.1. Dates and Deadlines.
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Item No. Reference Event Date or Deadline
1 § 3 Time of Day Deadline 5 p.m.
2 § 4 Alternative Earnest Money Deadline N/A
Title
3 § 8 Record Title Deadline (and Tax Certificate) No later than 3 weeks after execution of this
contract
4 § 8 Record Title Objection Deadline 7 days after receipt of title deadline
5 § 8 Off-Record Title Deadline No later than 3 weeks after execution of this
contract
6 § 8 Off-Record Title Objection Deadline 7 days after receipt of off-record title deadline
7 § 8 Title Resolution Deadline May 1 or Closing, whichever occurs first
8 § 8 Third Party Right to Purchase/Approve Deadline N/A
Owners’ Association
9 § 7 Association Documents Deadline N/A
10 § 7 Association Documents Termination Deadline N/A
Seller’s Disclosures
11 § 10 Seller’s Property Disclosure Deadline No later than 7 days after execution of this contract
12 § 10 Lead-Based Paint Disclosure Deadline (if Residential
Addendum attached)
N/A
Loan and Credit
13 § 5 New Loan Application Deadline N/A
14 § 5 New Loan Terms Deadline N/A
15 § 5 New Loan Availability Deadline N/A
16 § 5 Buyer’s Credit Information Deadline N/A
17 § 5 Disapproval of Buyer’s Credit Information Deadline N/A
18 § 5 Existing Loan Deadline N/A
19 § 5 Existing Loan Termination Deadline May 1 or Closing, whichever occurs first
20 § 5 Loan Transfer Approval Deadline N/A
21 § 4 Seller or Private Financing Deadline N/A
Appraisal
22 § 6 Appraisal Deadline N/A
23 § 6 Appraisal Objection Deadline N/A
24 § 6 Appraisal Resolution Deadline N/A
Survey
25 § 9 New ILC or New Survey Deadline N/A
26 § 9 New ILC or New Survey Objection Deadline N/A
27 § 9 New ILC or New Survey Resolution Deadline N/A
Inspection and Due Diligence
28 § 2 Water Rights Examination Deadline N/A
29 § 8 Mineral Rights Examination Deadline N/A
30 § 10 Inspection Termination Deadline 10 DAYS PRIOR TO May 1 or Closing, whichever
occurs first
31 § 10 Inspection Objection Deadline 5 DAYS AFTER INSPECTION TERMINATION
32 § 10 Inspection Resolution Deadline 5 DAYS BEFORE THE EARLIER OF
INSPECTION OBJECTION OR CLOSING
33 § 10 Property Insurance Termination Deadline N/A
34 § 10 Due Diligence Documents Delivery Deadline 10 DAYS PRIOR TO May 1 or Closing, whichever
occurs first
35 § 10 Due Diligence Documents Objection Deadline 5 DAYS AFTER DELIVERY
36 § 10 Due Diligence Documents Resolution Deadline 5 DAYS AFTER OBJECTION
37 § 10 Environmental Inspection Termination Deadline 5 DAYS PRIOR TO CLOSING
38 § 10 ADA Evaluation Termination Deadline N/A
39 § 10 Conditional Sale Deadline N/A
40 § 10 Lead-Based Paint Termination Deadline (if Residential
Addendum attached)
N/A
41 § 11 Estoppel Statements Deadline 10 DAYS PRIOR TO May 1 or Closing, whichever
occurs first
42 § 11 Estoppel Statements Termination Deadline 5 DAYS AFTER ESTOPPEL STATEMENTS
PRODUCED
Closing and Possession
43 § 12 Closing Date May 1, 2022, or earlier if agreed by parties
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44 § 17 Possession Date May 1, 2022, or earlier if agreed by parties
45 § 17 Possession Time 5 p.m.
46 § 27 Acceptance Deadline Date May 1, 2022, or Closing, whichever occurs first
47 § 27 Acceptance Deadline Time 5 P.M.
110 3.2. Applicability of Terms. If any deadline blank in § 3.1. (Dates and Deadlines) is left blank or completed with “N/A”,
111 or the word “Deleted,” such deadline is not applicable and the corresponding provision containing the deadline is deleted. Any box
112 checked in this Contract means the corresponding provision applies. If no box is checked in a provision that contains a selection of
113 “None”, such provision means that “None” applies.
114 The abbreviation “MEC” (mutual execution of this Contract) means the date upon which both parties have signed this Contract. The
115 abbreviation “N/A” as used in this Contract means not applicable.
116 3.3. Day; Computation of Period of Days; Deadlines.
117 3.3.1. Day. As used in this Contract, the term “day” means the entire day ending at 11:59 p.m., United States
118 Mountain Time (Standard or Daylight Savings, as applicable). Except however, if a Time of Day Deadline is specified in § 3.1.
119 (Dates and Deadlines), all Objection Deadlines, Resolution Deadlines, Examination Deadlines and Termination Deadlines will end
120 on the specified deadline date at the time of day specified in the Time of Day Deadline, United States Mountain Time. If Time of
121 Day Deadline is left blank or “N/A” the deadlines will expire at 11:59 p.m., United States Mountain Time.
122 3.3.2. Computation of Period of Days. In computing a period of days (e.g., three days after MEC), when the
123 ending date is not specified, the first day is excluded and the last day is included.
124 3.3.3. Deadlines. If any deadline falls on a Saturday, Sunday or federal or Colorado state holiday (Holiday), such
125 deadline X Will Will Not be extended to the next day that is not a Saturday, Sunday or Holiday. Should neither box be checked,
126 the deadline will not be extended.
127 4. PURCHASE PRICE AND TERMS.
128 4.1. Price and Terms. The Purchase Price set forth below is payable in U.S. Dollars by Buyer as follows:
Item No. Reference Item Amount Amount
1 § 4.1. Purchase Price $5,500,000
2 § 4.3. Earnest Money $0
3 § 4.5. New Loan $0
4 § 4.6. Assumption Balance $0
5 § 4.7. Private Financing $0
6 § 4.7. Seller Financing $0
7
8
9 § 4.4. Cash at Closing $5,500,000
10 TOTAL $5,500,000 $5,500,000
129 4.2. Seller Concession. At Closing, Seller will credit to Buyer $ N/A (Seller Concession). The Seller
130 Concession may be used for any Buyer fee, cost, charge or expenditure to the extent the amount is allowed by the Buyer’s lender
131 and is included in the Closing Statement or Closing Disclosure at Closing. Examples of allowable items to be paid for by the Seller
132 Concession include, but are not limited to: Buyer’s closing costs, loan discount points, loan origination fees, prepaid items and any
133 other fee, cost, charge, expense or expenditure. Seller Concession is in addition to any sum Seller has agreed to pay or credit Buyer
134 elsewhere in this Contract.
135 4.3. Earnest Money. The Earnest Money set forth in this Section, in the form of a N/A , will be
136 payable to and held by N/A (Earnest Money Holder), in its trust account, on behalf of
137 both Seller and Buyer. The Earnest Money deposit must be tendered, by Buyer, with this Contract unless the parties mutually agree
138 to an Alternative Earnest Money Deadline for its payment. The parties authorize delivery of the Earnest Money deposit to the
139 company conducting the Closing (Closing Company), if any, at or before Closing. In the event Earnest Money Holder has agreed to
140 have interest on Earnest Money deposits transferred to a fund established for the purpose of providing affordable housing to Colorado
141 residents, Seller and Buyer acknowledge and agree that any interest accruing on the Earnest Money deposited with the Earnest
142 Money Holder in this transaction will be transferred to such fund.
143 4.3.1. Alternative Earnest Money Deadline. The deadline for delivering the Earnest Money, if other than at the
144 time of tender of this Contract, is as set forth as the Alternative Earnest Money Deadline.
145 4.3.2. Disposition of Earnest Money. If Buyer has a Right to Terminate and timely terminates, Buyer is entitled
146 to the return of Earnest Money as provided in this Contract. If this Contract is terminated as set forth in § 24 and, except as provided
147 in § 23 (Earnest Money Dispute), if the Earnest Money has not already been returned following receipt of a Notice to Terminate,
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148 Seller agrees to execute and return to Buyer or Broker working with Buyer, written mutual instructions (e.g., Earnest Money Release
149 form), within three days of Seller’s receipt of such form. If Seller is entitled to the Earnest Money, and, except as provided in § 23
150 (Earnest Money Dispute), if the Earnest Money has not already been paid to Seller, following receipt of an Earnest Money Release
151 form, Buyer agrees to execute and return to Seller or Broker working with Seller, written mutual instructions (e.g., Earnest Money
152 Release form), within three days of Buyer’s receipt.
153 4.3.2.1. Seller Failure to Timely Return Earnest Money. If Seller fails to timely execute and return the
154 Earnest Money Release Form, or other written mutual instructions, Seller is in default and liable to Buyer as set forth in “If Seller
155 is in Default”, § 20.2. and § 21, unless Seller is entitled to the Earnest Money due to a Buyer default.
156 4.3.2.2. Buyer Failure to Timely Release Earnest Money. If Buyer fails to timely execute and return the
157 Earnest Money Release Form, or other written mutual instructions, Buyer is in default and liable to Seller as set forth in “If Buyer
158 is in Default, § 20.1 and § 21, unless Buyer is entitled to the Earnest Money due to a Seller Default.
159 4.4. Form of Funds; Time of Payment; Available Funds.
160 4.4.1. Good Funds. All amounts payable by the parties at Closing, including any loan proceeds, Cash at Closing
161 and closing costs, must be in funds that comply with all applicable Colorado laws, including electronic transfer funds, certified
162 check, savings and loan teller’s check and cashier’s check (Good Funds).
163 4.4.2. Time of Payment. All funds, including the Purchase Price to be paid by Buyer, must be paid before or at
164 Closing or as otherwise agreed in writing between the parties to allow disbursement by Closing Company at Closing OR SUCH
165 NONPAYING PARTY WILL BE IN DEFAULT.
166 4.4.3. Available Funds. Buyer represents that Buyer, as of the date of this Contract, X Does Does Not have
167 funds that are immediately verifiable and available in an amount not less than the amount stated as Cash at Closing in § 4.1.
168 4.5. New Loan.
169 4.5.1. Buyer to Pay Loan Costs. Buyer, except as otherwise permitted in § 4.2. (Seller Concession), if applicable,
170 must timely pay Buyer’s loan costs, loan discount points, prepaid items and loan origination fees as required by lender.
171 4.5.2. Buyer May Select Financing. Buyer may pay in cash or select financing appropriate and acceptable to
172 Buyer, including a different loan than initially sought, except as restricted in § 4.5.3. (Loan Limitations) or § 29 (Additional
173 Provisions).
174 4.5.3. Loan Limitations. Buyer may purchase the Property using any of the following types of loans:
175 Conventional Other N/A .
176 4.6. Assumption. Buyer agrees to assume and pay an existing loan in the approximate amount of the Assumption Balance
177 set forth in § 4.1. (Price and Terms), presently payable at $ N/A per N/A including principal and interest
178 presently at the rate of N/A % per annum and also including escrow for the following as indicated: Real Estate Taxes
179 Property Insurance Premium and N/A .
180 Buyer agrees to pay a loan transfer fee not to exceed $ N/A . At the time of assumption, the new interest rate will
181 not exceed N/A % per annum and the new payment will not exceed $ N/A per N/A principal and
182 interest, plus escrow, if any. If the actual principal balance of the existing loan at Closing is less than the Assumption Balance, which
183 causes the amount of cash required from Buyer at Closing to be increased by more than $ N/A , or if any other terms or
184 provisions of the loan change, Buyer has the Right to Terminate under § 24.1. on or before Closing Date.
185 Seller Will Will Not be released from liability on said loan. If applicable, compliance with the requirements for release
186 from liability will be evidenced by delivery on or before Loan Transfer Approval Deadline at Closing of an appropriate
187 letter of commitment from lender. Any cost payable for release of liability will be paid by N/A in an amount
188 not to exceed $ N/A .
189 4.7. Seller or Private Financing.
190 WARNING: Unless the transaction is exempt, federal and state laws impose licensing, other requirements and restrictions on sellers
191 and private financiers. Contract provisions on financing and financing documents, unless exempt, should be prepared by a licensed
192 Colorado attorney or licensed mortgage loan originator. Brokers should not prepare or advise the parties on the specifics of financing,
193 including whether or not a party is exempt from the law.
194 4.7.1. Seller Financing. If Buyer is to pay all or any portion of the Purchase Price with Seller financing, Buyer
195 Seller will deliver the proposed Seller financing documents to the other party on or before N/A days before Seller or
196 Private Financing Deadline.
197 4.7.1.1. Seller May Terminate. If Seller is to provide Seller financing, this Contract is conditional upon
198 Seller determining whether such financing is satisfactory to the Seller, including its payments, interest rate, terms, conditions, cost,
199 and compliance with the law. Seller has the Right to Terminate under § 24.1., on or before Seller or Private Financing Deadline,
200 if such Seller financing is not satisfactory to Seller, in Seller’s sole subjective discretion.
201 4.7.2. Buyer May Terminate. If Buyer is to pay all or any portion of the Purchase Price with Seller or private
202 financing, this Contract is conditional upon Buyer determining whether such financing is satisfactory to Buyer, including its
203 availability, payments, interest rate, terms, conditions, and cost. Buyer has the Right to Terminate under § 24.1., on or before Seller
204 or Private Financing Deadline, if such Seller or private financing is not satisfactory to Buyer, in Buyer’s sole subjective discretion.
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206 5. FINANCING CONDITIONS AND OBLIGATIONS.
207 5.1. N/A New Loan Application. If Buyer is to pay all or part of the Purchase Price by obtaining one or more new loans (New
208 Loan), or if an existing loan is not to be released at Closing, Buyer, if required by such lender, must make an application verifiable
209 by such lender, on or before New Loan Application Deadline and exercise reasonable efforts to obtain such loan or approval.
210 5.2. New Loan Terms; New Loan Availability.
211 5.2.1. N/A New Loan Terms. If Buyer is to pay all or part of the Purchase Price with a New Loan, this Contract is
212 conditional upon Buyer determining, in Buyer’s sole subjective discretion, whether the proposed New Loan’s payments, interest
213 rate, conditions and costs or any other loan terms (New Loan Terms) are satisfactory to Buyer. This condition is for the sole benefit
214 of Buyer. Buyer has the Right to Terminate under § 24.1., on or before New Loan Terms Deadline, if the New Loan Terms are not
215 satisfactory to Buyer, in Buyer’s sole subjective discretion.
216 5.2.2. N/A New Loan Availability. If Buyer is to pay all or part of the Purchase Price with a New Loan, this Contract is
217 conditional upon Buyer’s satisfaction with the availability of the New Loan based on the lender’s review and underwriting of Buyer’s
218 New Loan Application (New Loan Availability). Buyer has the Right to Terminate under § 24.1., on or before the New Loan
219 Availability Deadline if the New Loan Availability is not satisfactory to Buyer. Buyer does not have a Right to Terminate based on the
220 New Loan Availability if the termination is based on the New Loan Terms, Appraised Value (defined below), the Lender Property
221 Requirements (defined below), Insurability (§ 10.5. below) or the Conditional Upon Sale of Property (§ 10.7. below). IF SELLER IS
222 NOT IN DEFAULT AND DOES NOT TIMELY RECEIVE BUYER’S WRITTEN NOTICE TO TERMINATE, BUYER’S
223 EARNEST MONEY WILL BE NONREFUNDABLE, except as otherwise provided in this Contract (e.g., Appraisal, Title,
224 Survey).
225 5.3. N/A Credit Information. If an existing loan is not to be released at Closing, this Contract is conditional (for the sole benefit
226 of Seller) upon Seller’s approval of Buyer’s financial ability and creditworthiness, which approval will be in Seller’s sole subjective
227 discretion. Accordingly: (1) Buyer must supply to Seller by Buyer’s Credit Information Deadline, at Buyer’s expense, information
228 and documents (including a current credit report) concerning Buyer’s financial, employment and credit condition; (2) Buyer consents
229 that Seller may verify Buyer’s financial ability and creditworthiness; and (3) any such information and documents received by Seller
230 must be held by Seller in confidence and not released to others except to protect Seller’s interest in this transaction. If the Cash at
231 Closing is less than as set forth in § 4.1. of this Contract, Seller has the Right to Terminate under § 24.1., on or before Closing. If
232 Seller disapproves of Buyer’s financial ability or creditworthiness, in Seller’s sole subjective discretion, Seller has the Right to
233 Terminate under § 24.1., on or before Disapproval of Buyer’s Credit Information Deadline.
234 5.4. N/A Existing Loan Review. If an existing loan is not to be released at Closing, Seller must deliver copies of the loan
235 documents (including note, deed of trust and any modifications) to Buyer by Existing Loan Deadline. For the sole benefit of Buyer,
236 this Contract is conditional upon Buyer’s review and approval of the provisions of such loan documents. Buyer has the Right to
237 Terminate under § 24.1., on or before Existing Loan Termination Deadline, based on any unsatisfactory provision of such loan
238 documents, in Buyer’s sole subjective discretion. If the lender’s approval of a transfer of the Property is required, this Contract is
239 conditional upon Buyer obtaining such approval without change in the terms of such loan, except as set forth in § 4.6. If lender’s
240 approval is not obtained by Loan Transfer Approval Deadline, this Contract will terminate on such deadline. Seller has the Right
241 to Terminate under § 24.1., on or before Closing, in Seller’s sole subjective discretion, if Seller is to be released from liability under
242 such existing loan and Buyer does not obtain such compliance as set forth in § 4.6.
243 6. APPRAISAL PROVISIONS.
244 6.1. Appraisal Definition. An “Appraisal” is an opinion of value prepared by a licensed or certified appraiser, engaged on
245 behalf of Buyer or Buyer’s lender, to determine the Property’s market value (Appraised Value). The Appraisal may also set forth
246 certain lender requirements, replacements, removals or repairs necessary on or to the Property as a condition for the Property to be
247 valued at the Appraised Value.
248 6.2. Appraised Value. The applicable appraisal provision set forth below applies to the respective loan type set forth in
249 § 4.5.3., or if a cash transaction (i.e., no financing), § 6.2.1. applies.
250 6.2.1. Conventional/Other. Buyer has the right to obtain an Appraisal. If the Appraised Value is less than the
251 Purchase Price, or if the Appraisal is not received by Buyer on or before Appraisal Deadline Buyer may, on or before Appraisal
252 Objection Deadline:
253 6.2.1.1. Notice to Terminate. Notify Seller in writing, pursuant to § 24.1., that this Contract is terminated;
254 or
255 6.2.1.2. Appraisal Objection. Deliver to Seller a written objection accompanied by either a copy of the
256 Appraisal or written notice from lender that confirms the Appraised Value is less than the Purchase Price (Lender Verification).
257 6.2.1.3. Appraisal Resolution. If an Appraisal Objection is received by Seller, on or before Appraisal
258 Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Appraisal Resolution
259 Deadline, this Contract will terminate on the Appraisal Resolution Deadline, unless Seller receives Buyer’s written withdrawal of
260 the Appraisal Objection before such termination, (i.e., on or before expiration of Appraisal Resolution Deadline).
TRANSACTION PROVISIONS
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261 6.3. Lender Property Requirements. If the lender imposes any written requirements, replacements, removals or repairs,
262 including any specified in the Appraisal (Lender Property Requirements) to be made to the Property (e.g., roof repair, repainting),
263 beyond those matters already agreed to by Seller in this Contract, this Contract terminates on the earlier of three days following
264 Seller’s receipt of the Lender Property Requirements, or Closing, unless prior to termination: (1) the parties enter into a written
265 agreement to satisfy the Lender Property Requirements; (2) the Lender Property Requirements have been completed; or (3) the
266 satisfaction of the Lender Property Requirements is waived in writing by Buyer.
267 6.4. Cost of Appraisal. Cost of the Appraisal to be obtained after the date of this Contract must be timely paid by Buyer
268 Seller. The cost of the Appraisal may include any and all fees paid to the appraiser, appraisal management company, lender’s
269 agent or all three.
270 7. OWNERS’ ASSOCIATIONS. This Section is applicable if the Property is located within one or more Common Interest
271 Communities and subject to one or more declarations (Association).
272 7.1. Common Interest Community Disclosure. THE PROPERTY IS LOCATED WITHIN A COMMON
273 INTEREST COMMUNITY AND IS SUBJECT TO THE DECLARATION FOR THE COMMUNITY. THE OWNER OF
274 THE PROPERTY WILL BE REQUIRED TO BE A MEMBER OF THE OWNERS’ ASSOCIATION FOR THE
275 COMMUNITY AND WILL BE SUBJECT TO THE BYLAWS AND RULES AND REGULATIONS OF THE
276 ASSOCIATION. THE DECLARATION, BYLAWS AND RULES AND REGULATIONS WILL IMPOSE FINANCIAL
277 OBLIGATIONS UPON THE OWNER OF THE PROPERTY, INCLUDING AN OBLIGATION TO PAY ASSESSMENTS
278 OF THE ASSOCIATION. IF THE OWNER DOES NOT PAY THESE ASSESSMENTS, THE ASSOCIATION COULD
279 PLACE A LIEN ON THE PROPERTY AND POSSIBLY SELL IT TO PAY THE DEBT. THE DECLARATION, BYLAWS
280 AND RULES AND REGULATIONS OF THE COMMUNITY MAY PROHIBIT THE OWNER FROM MAKING
281 CHANGES TO THE PROPERTY WITHOUT AN ARCHITECTURAL REVIEW BY THE ASSOCIATION (OR A
282 COMMITTEE OF THE ASSOCIATION) AND THE APPROVAL OF THE ASSOCIATION. PURCHASERS OF
283 PROPERTY WITHIN THE COMMON INTEREST COMMUNITY SHOULD INVESTIGATE THE FINANCIAL
284 OBLIGATIONS OF MEMBERS OF THE ASSOCIATION. PURCHASERS SHOULD CAREFULLY READ THE
285 DECLARATION FOR THE COMMUNITY AND THE BYLAWS AND RULES AND REGULATIONS OF THE
286 ASSOCIATION.
287 7.2. Association Documents to Buyer. Seller is obligated to provide to Buyer the Association Documents (defined below),
288 at Seller’s expense, on or before Association Documents Deadline. Seller authorizes the Association to provide the Association
289 Documents to Buyer, at Seller’s expense. Seller’s obligation to provide the Association Documents is fulfilled upon Buyer’s receipt
290 of the Association Documents, regardless of who provides such documents.
291 7.3. Association Documents. Association documents (Association Documents) consist of the following:
292 7.3.1. All Association declarations, articles of incorporation, bylaws, articles of organization, operating agreements,
293 rules and regulations, party wall agreements and the Association’s responsible governance policies adopted under § 38-33.3-209.5,
294 C.R.S.;
295 7.3.2. Minutes of: (1) the annual owners’ or members’ meeting and (2) any executive boards’ or managers’ meetings;
296 such minutes include those provided under the most current annual disclosure required under § 38-33.3-209.4, C.R.S. (Annual
297 Disclosure) and minutes of meetings, if any, subsequent to the minutes disclosed in the Annual Disclosure. If none of the preceding
298 minutes exist, then the most recent minutes, if any (§§ 7.3.1. and 7.3.2., collectively, Governing Documents); and
299 7.3.3. List of all Association insurance policies as provided in the Association’s last Annual Disclosure, including,
300 but not limited to, property, general liability, association director and officer professional liability and fidelity policies. The list must
301 include the company names, policy limits, policy deductibles, additional named insureds and expiration dates of the policies listed
302 (Association Insurance Documents);
303 7.3.4. A list by unit type of the Association’s assessments, including both regular and special assessments as
304 disclosed in the Association’s last Annual Disclosure;
305 7.3.5. The Association’s most recent financial documents which consist of: (1) the Association’s operating budget
306 for the current fiscal year, (2) the Association’s most recent annual financial statements, including any amounts held in reserve for
307 the fiscal year immediately preceding the Association’s last Annual Disclosure, (3) the results of the Association’s most recent
308 available financial audit or review, (4) list of the fees and charges (regardless of name or title of such fees or charges) that the
309 Association’s community association manager or Association will charge in connection with the Closing including, but not limited
310 to, any fee incident to the issuance of the Association’s statement of assessments (Status Letter), any rush or update fee charged for
311 the Status Letter, any record change fee or ownership record transfer fees (Record Change Fee), fees to access documents, (5) list of
312 all assessments required to be paid in advance, reserves or working capital due at Closing and (6) reserve study, if any (§§ 7.3.4. and
313 7.3.5., collectively, Financial Documents);
314 7.3.6. Any written notice from the Association to Seller of a “construction defect action” under § 38-33.3-303.5,
315 C.R.S. within the past six months and the result of whether the Association approved or disapproved such action (Construction
316 Defect Documents). Nothing in this Section limits the Seller’s obligation to disclose adverse material facts as required under § 10.2.
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317 (Disclosure of Adverse Material Facts; Subsequent Disclosure; Present Condition) including any problems or defects in the common
318 elements or limited common elements of the Association property.
319 7.4. Conditional on Buyer’s Review. Buyer has the right to review the Association Documents. Buyer has the Right to
320 Terminate under § 24.1., on or before Association Documents Termination Deadline, based on any unsatisfactory provision in
321 any of the Association Documents, in Buyer’s sole subjective discretion. Should Buyer receive the Association Documents after
322 Association Documents Deadline, Buyer, at Buyer’s option, has the Right to Terminate under § 24.1. by Buyer’s Notice to
323 Terminate received by Seller on or before ten days after Buyer’s receipt of the Association Documents. If Buyer does not receive
324 the Association Documents, or if Buyer’s Notice to Terminate would otherwise be required to be received by Seller after Closing
325 Date, Buyer’s Notice to Terminate must be received by Seller on or before Closing. If Seller does not receive Buyer’s Notice to
326 Terminate within such time, Buyer accepts the provisions of the Association Documents as satisfactory and Buyer waives any Right
327 to Terminate under this provision, notwithstanding the provisions of § 8.6. (Third Party Right to Purchase/Approve).
328 8. TITLE INSURANCE, RECORD TITLE AND OFF-RECORD TITLE.
329 8.1. Evidence of Record Title.
8.1.1. Seller Selects Title Insurance Company. If this box is checked, Seller will select the title insurance
330 company to furnish the owner’s title insurance policy at Seller’s expense. On or before Record Title Deadline, Seller must furnish
331 to Buyer, a current commitment for an owner’s title insurance policy (Title Commitment), in an amount equal to the Purchase Price,
332 or if this box is checked, an Abstract of Title certified to a current date. Seller will cause the title insurance policy to be issued
333 and delivered to Buyer as soon as practicable at or after Closing.
xx 8.1.2. Buyer Selects Title Insurance Company. If this box is checked, Buyer will select the title insurance
334 company to furnish the owner’s title insurance policy at Buyer’s expense. On or before Record Title Deadline, Buyer must furnish to
335 Seller, a current commitment for owner’s title insurance policy (Title Commitment), in an amount equal to the Purchase Price.
336 If neither box in § 8.1.1. or § 8.1.2. is checked, § 8.1.1. applies.
337 8.1.3. Owner’s Extended Coverage (OEC). The Title Commitment X Will Will Not contain Owner’s
338 Extended Coverage (OEC), IF BUYER ELECTS AT TIME OF TITLE INSURANCE PURCHASE . If the Title Commitment is to contain
OEC, it will commit to delete or insure over the standard exceptions which relate to: (1) parties in possession, (2) unrecorded easements,
(3) survey matters, (4) unrecorded mechanics’ liens, (5) gap period (period between the effective date and time of commitment to the
date and time the deed is recorded) and (6) unpaid taxes, assessments and unredeemed tax sales prior to the year of Closing. Any
additional premium expense to obtain OEC will be paid by
X Buyer Seller One-Half by Buyer and One-Half by Seller Other .
339 Regardless of whether the Contract requires OEC, the Title Insurance Commitment may not provide OEC or delete or insure over
340 any or all of the standard exceptions for OEC. The Title Insurance Company may require a New Survey or New ILC, defined below,
341 among other requirements for OEC. If the Title Insurance Commitment is not satisfactory to Buyer, Buyer has a right to object under
342 § 8.7. (Right to Object to Title, Resolution).
343 8.1.4. Title Documents. Title Documents consist of the following: (1) copies of any plats, declarations, covenants,
344 conditions and restrictions burdening the Property and (2) copies of any other documents (or, if illegible, summaries of such
345 documents) listed in the schedule of exceptions (Exceptions) in the Title Commitment furnished to Buyer (collectively, Title
346 Documents).
347 8.1.5. Copies of Title Documents. Buyer must receive, on or before Record Title Deadline, copies of all Title
348 Documents. This requirement pertains only to documents as shown of record in the office of the clerk and recorder in the county
349 where the Property is located. The cost of furnishing copies of the documents required in this Section will be at the expense of the
350 party or parties obligated to pay for the owner’s title insurance policy.
351 8.1.6. Existing Abstracts of Title. Seller must deliver to Buyer copies of any abstracts of title covering all or any
352 portion of the Property (Abstract of Title) in Seller’s possession on or before Record Title Deadline.
353 8.2. Record Title. Buyer has the right to review and object to the Abstract of Title or Title Commitment and any of the
354 Title Documents as set forth in § 8.7. (Right to Object to Title, Resolution) on or before Record Title Objection Deadline. Buyer’s
355 objection may be based on any unsatisfactory form or content of Title Commitment or Abstract of Title, notwithstanding § 13, or
356 any other unsatisfactory title condition, in Buyer’s sole subjective discretion. If the Abstract of Title, Title Commitment or Title
357 Documents are not received by Buyer on or before the Record Title Deadline, or if there is an endorsement to the Title Commitment
358 that adds a new Exception to title, a copy of the new Exception to title and the modified Title Commitment will be delivered to
359 Buyer. Buyer has until the earlier of Closing or ten days after receipt of such documents by Buyer to review and object to: (1) any
360 required Title Document not timely received by Buyer, (2) any change to the Abstract of Title, Title Commitment or Title Documents,
361 or (3) any endorsement to the Title Commitment. If Seller receives Buyer’s Notice to Terminate or Notice of Title Objection,
362 pursuant to this § 8.2. (Record Title), any title objection by Buyer is governed by the provisions set forth in § 8.7. (Right to Object
363 to Title, Resolution). If Seller has fulfilled all Seller’s obligations, if any, to deliver to Buyer all documents required by § 8.1.
364 (Evidence of Record Title) and Seller does not receive Buyer’s Notice to Terminate or Notice of Title Objection by the applicable
365 deadline specified above, Buyer accepts the condition of title as disclosed by the Abstract of Title, Title Commitment and Title
366 Documents as satisfactory.
367 8.3. Off-Record Title. Seller must deliver to Buyer, on or before Off-Record Title Deadline, true copies of all existing
368 surveys in Seller’s possession pertaining to the Property and must disclose to Buyer all easements, liens (including, without
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369 limitation, governmental improvements approved, but not yet installed) or other title matters not shown by public records, of which
370 Seller has actual knowledge (Off-Record Matters). This Section excludes any New ILC or New Survey governed under § 9 (New
371 ILC, New Survey). Buyer has the right to inspect the Property to investigate if any third party has any right in the Property not shown
372 by public records (e.g., unrecorded easement, boundary line discrepancy or water rights). Buyer’s Notice to Terminate or Notice of
373 Title Objection of any unsatisfactory condition (whether disclosed by Seller or revealed by such inspection, notwithstanding § 8.2.
374 (Record Title) and § 13 (Transfer of Title), in Buyer’s sole subjective discretion, must be received by Seller on or before Off-Record
375 Title Objection Deadline. If an Off-Record Matter is received by Buyer after the Off-Record Title Deadline, Buyer has until the
376 earlier of Closing or ten days after receipt by Buyer to review and object to such Off-Record Matter. If Seller receives Buyer’s Notice
377 to Terminate or Notice of Title Objection pursuant to this § 8.3. (Off-Record Title), any title objection by Buyer is governed by the
378 provisions set forth in § 8.7. (Right to Object to Title, Resolution). If Seller does not receive Buyer’s Notice to Terminate or Notice
379 of Title Objection by the applicable deadline specified above, Buyer accepts title subject to such Off-Record Matters and rights, if
380 any, of third parties not shown by public records of which Buyer has actual knowledge.
381 8.4. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION
382 INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE
383 PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK
384 FOR INCREASED MILL LEVIES AND TAX TO SUPPORT THE SERVICING OF SUCH DEBT WHERE
385 CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH
386 INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYERS SHOULD INVESTIGATE THE
387 SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS LOCATED BY CONTACTING THE COUNTY
388 TREASURER, BY REVIEWING THE CERTIFICATE OF TAXES DUE FOR THE PROPERTY AND BY OBTAINING
389 FURTHER INFORMATION FROM THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY CLERK AND
390 RECORDER, OR THE COUNTY ASSESSOR.
391 8.5. Tax Certificate. A tax certificate paid for by Seller Buyer, for the Property listing any special taxing districts
392 that affect the Property (Tax Certificate) must be delivered to Buyer on or before Record Title Deadline. If the Property is located
393 within a special taxing district and such inclusion is unsatisfactory to Buyer, in Buyer’s sole subjective discretion, Buyer may
394 terminate, on or before Record Title Objection Deadline. Should Buyer receive the Tax Certificate after Record Title Deadline,
395 Buyer, at Buyer’s option, has the Right to Terminate under § 24.1. by Buyer’s Notice to Terminate received by Seller on or before
396 ten days after Buyer’s receipt of the Tax Certificate. If Buyer does not receive the Tax Certificate, or if Buyer’s Notice to Terminate
397 would otherwise be required to be received by Seller after Closing Date, Buyer’s Notice to Terminate must be received by Seller on
398 or before Closing. If Seller does not receive Buyer’s Notice to Terminate within such time, Buyer accepts the provisions of the Tax
399 Certificate and the inclusion of the Property in a special taxing district, if applicable, as satisfactory and Buyer waives any Right to
400 Terminate under this provision. If Buyer’s loan specified in §4.5.3, (Loan Limitations) prohibits Buyer from paying for the Tax
401 Certificate, the Tax Certificate will be paid for by Seller.
402 8.6. Third Party Right to Purchase/Approve. SELLER WARRANTS THAT NO THIRD PARTY HAS A RIGHT TO
PURCHASE THE PROPERTY OR APPROVE SALE. If any third party has a right to purchase the Property (e.g., right of
firstrefusal on the Property, right to purchase the Property under a lease or an option held by a third party to purchase the Property) or a
403 right of a third party to approve this Contract, Seller must promptly submit this Contract according to the terms and conditions of
404 such right. If the third-party holder of such right exercises its right this Contract will terminate. If the third party’s right to purchase
405 is waived explicitly or expires, or the Contract is approved, this Contract will remain in full force and effect. Seller must promptly
406 notify Buyer in writing of the foregoing. If the third party right to purchase is exercised or approval of this Contract has not occurred
407 on or before Third Party Right to Purchase/Approve Deadline, this Contract will then terminate. Seller will supply to Buyer, in
408 writing, details of any Third Party Right to Purchase the Property on or before the Record Title Deadline.
409 8.7. Right to Object to Title, Resolution. Buyer has a right to object or terminate, in Buyer’s sole subjective discretion,
410 based on any title matters including those matters set forth in § 8.2. (Record Title), § 8.3. (Off-Record Title), § 8.5. (Special Taxing
411 District) and § 13 (Transfer of Title). If Buyer exercises Buyer’s rights to object or terminate based on any such title matter, on or
412 before the applicable deadline, Buyer has the following options:
413 8.7.1. Title Objection, Resolution. If Seller receives Buyer’s written notice objecting to any title matter (Notice of
414 Title Objection) on or before the applicable deadline and if Buyer and Seller have not agreed to a written settlement thereof on or
415 before Title Resolution Deadline, this Contract will terminate on the expiration of Title Resolution Deadline, unless Seller receives
416 Buyer’s written withdrawal of Buyer’s Notice of Title Objection (i.e., Buyer’s written notice to waive objection to such items and
417 waives the Right to Terminate for that reason), on or before expiration of Title Resolution Deadline. If either the Record Title
418 Deadline or the Off-Record Title Deadline, or both, are extended pursuant to § 8.2. (Record Title) or § 8.3. (Off-Record Title) the
419 Title Resolution Deadline also will be automatically extended to the earlier of Closing or fifteen days after Buyer’s receipt of the
420 applicable documents; or
421 8.7.2. Title Objection, Right to Terminate. Buyer may exercise the Right to Terminate under § 24.1., on or before
422 the applicable deadline, based on any title matter unsatisfactory to Buyer, in Buyer’s sole subjective discretion.
423 8.8. Title Advisory. The Title Documents affect the title, ownership and use of the Property and should be reviewed
424 carefully. Additionally, other matters not reflected in the Title Documents may affect the title, ownership and use of the Property,
425 including, without limitation, boundary lines and encroachments, set-back requirements, area, zoning, building code violations,
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426 unrecorded easements and claims of easements, leases and other unrecorded agreements, water on or under the Property and various
427 laws and governmental regulations concerning land use, development and environmental matters.
428 8.8.1. OIL, GAS, WATER AND MINERAL DISCLOSURE. THE SURFACE ESTATE OF THE
429 PROPERTY MAY BE OWNED SEPARATELY FROM THE UNDERLYING MINERAL ESTATE AND TRANSFER OF
430 THE SURFACE ESTATE MAY NOT NECESSARILY INCLUDE TRANSFER OF THE MINERAL ESTATE OR WATER
431 RIGHTS. THIRD PARTIES MAY OWN OR LEASE INTERESTS IN OIL, GAS, OTHER MINERALS, GEOTHERMAL
432 ENERGY OR WATER ON OR UNDER THE SURFACE OF THE PROPERTY, WHICH INTERESTS MAY GIVE THEM
433 RIGHTS TO ENTER AND USE THE SURFACE OF THE PROPERTY TO ACCESS THE MINERAL ESTATE, OIL,
434 GAS OR WATER.
435 8.8.2. SURFACE USE AGREEMENT. THE USE OF THE SURFACE ESTATE OF THE PROPERTY TO
436 ACCESS THE OIL, GAS OR MINERALS MAY BE GOVERNED BY A SURFACE USE AGREEMENT, A
437 MEMORANDUM OR OTHER NOTICE OF WHICH MAY BE RECORDED WITH THE COUNTY CLERK AND
438 RECORDER.
439 8.8.3. OIL AND GAS ACTIVITY. OIL AND GAS ACTIVITY THAT MAY OCCUR ON OR ADJACENT
440 TO THE PROPERTY MAY INCLUDE, BUT IS NOT LIMITED TO, SURVEYING, DRILLING, WELL COMPLETION
441 OPERATIONS, STORAGE, OIL AND GAS, OR PRODUCTION FACILITIES, PRODUCING WELLS, REWORKING
442 OF CURRENT WELLS AND GAS GATHERING AND PROCESSING FACILITIES.
443 8.8.4. ADDITIONAL INFORMATION. BUYER IS ENCOURAGED TO SEEK ADDITIONAL
444 INFORMATION REGARDING OIL AND GAS ACTIVITY ON OR ADJACENT TO THE PROPERTY, INCLUDING
445 DRILLING PERMIT APPLICATIONS. THIS INFORMATION MAY BE AVAILABLE FROM THE COLORADO OIL
446 AND GAS CONSERVATION COMMISSION.
447 8.8.5. Title Insurance Exclusions. Matters set forth in this Section and others, may be excepted, excluded from, or
448 not covered by the owner’s title insurance policy.
449 8.9. Mineral Rights Review. Buyer Does X Does Not have a Right to Terminate if examination of the Mineral
450 Rights is unsatisfactory to Buyer on or before the Mineral Rights Examination Deadline.
451 9. NEW ILC, NEW SURVEY.
452 9.1. New ILC or New Survey. If the box is checked, (1) New Improvement Location Certificate (New ILC); or, (2)
453 New Survey in the form of ; is required and the following will apply:
454 9.1.1. Ordering of New ILC or New Survey. Seller Buyer will order the New ILC or New Survey. The
455 New ILC or New Survey may also be a previous ILC or survey that is in the above-required form, certified and updated as of a date
456 after the date of this Contract.
457 9.1.2. Payment for New ILC or New Survey. The cost of the New ILC or New Survey will be paid, on or before
458 Closing, by: Seller Buyer or:
459
460
461 9.1.3. Delivery of New ILC or New Survey. Buyer, Seller, the issuer of the Title Commitment (or the provider of
462 the opinion of title if an Abstract of Title) and will receive a New ILC or New Survey on or before New
463 ILC or New Survey Deadline.
464 9.1.4. Certification of New ILC or New Survey. The New ILC or New Survey will be certified by the surveyor to
465 all those who are to receive the New ILC or New Survey.
466 9.2. Buyer’s Right to Waive or Change New ILC or New Survey Selection. Buyer may select a New ILC or New
467 Survey different than initially specified in this Contract if there is no additional cost to Seller or change to the New ILC or New
468 Survey Objection Deadline. Buyer may, in Buyer’s sole subjective discretion, waive a New ILC or New Survey if done prior to
469 Seller incurring any cost for the same.
470 9.3. New ILC or New Survey Objection. Buyer has the right to review and object based on the New ILC or New Survey.
471 If the New ILC or New Survey is not timely received by Buyer or is unsatisfactory to Buyer, in Buyer’s sole subjective discretion,
472 Buyer may, on or before New ILC or New Survey Objection Deadline, notwithstanding § 8.3. or § 13:
473 9.3.1. Notice to Terminate. Notify Seller in writing, pursuant to § 24.1, that this Contract is terminated; or
474 9.3.2. New ILC or New Survey Objection. Deliver to Seller a written description of any matter that was to be
475 shown or is shown in the New ILC or New Survey that is unsatisfactory and that Buyer requires Seller to correct.
476 9.3.3. New ILC or New Survey Resolution. If a New ILC or New Survey Objection is received by Seller, on or
477 before New ILC or New Survey Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on
478 or before New ILC or New Survey Resolution Deadline, this Contract will terminate on expiration of the New ILC or New Survey
479 Resolution Deadline, unless Seller receives Buyer’s written withdrawal of the New ILC or New Survey Objection before such
480 termination (i.e., on or before expiration of New ILC or New Survey Resolution Deadline).
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481
482 10. PROPERTY DISCLOSURE, INSPECTION, INDEMNITY, INSURABILITY AND DUE DILIGENCE.
483 10.1. Seller’s Property Disclosure. On or before Seller’s Property Disclosure Deadline, Seller agrees to deliver to Buyer
484 the most current version of the applicable Colorado Real Estate Commission’s Seller’s Property Disclosure form completed by Seller
485 to Seller’s actual knowledge and current as of the date of this Contract.
486 10.2. Disclosure of Adverse Material Facts; Subsequent Disclosure; Present Condition. Seller must disclose to Buyer
487 any adverse material facts actually known by Seller as of the date of this Contract. Seller agrees that disclosure of adverse material
488 facts will be in writing. In the event Seller discovers an adverse material fact after the date of this Contract, Seller must timely
489 disclose such adverse fact to Buyer. Buyer has the Right to Terminate based on the Seller’s new disclosure on the earlier of Closing
490 or five days after Buyer’s receipt of the new disclosure. Except as otherwise provided in this Contract, Buyer acknowledges that
491 Seller is conveying the Property to Buyer in an “As Is” condition, “Where Is” and “With All Faults.”
492 10.3. Inspection. Unless otherwise provided in this Contract, Buyer, acting in good faith, has the right to have inspections
493 (by one or more third parties, personally or both) of the Property, Leased Items, and Inclusions (Inspection), at Buyer’s expense. If
494 (1) the physical condition of the Property, including, but not limited to, the roof, walls, structural integrity of the Property, the
495 electrical, plumbing, HVAC and other mechanical systems of the Property, (2) the physical condition of the Inclusions and Leased
496 Items, (3) service to the Property (including utilities and communication services), systems and components of the Property (e.g.,
497 heating and plumbing), (4) any proposed or existing transportation project, road, street or highway, or (5) any other activity, odor or
498 noise (whether on or off the Property) and its effect or expected effect on the Property or its occupants is unsatisfactory, in Buyer’s
499 sole subjective discretion, Buyer may:
500 10.3.1. Inspection Termination. On or before the Inspection Termination Deadline, notify Seller in writing,
501 pursuant to § 24.1., that this Contract is terminated due to any unsatisfactory condition, provided the Buyer did not previously deliver
502 an Inspection Objection. Buyer’s Right to Terminate under this provision expires upon delivery of an Inspection Objection to Seller
503 pursuant to § 10.3.2.; or
504 10.3.2. Inspection Objection. On or before the Inspection Objection Deadline, deliver to Seller a written
505 description of any unsatisfactory condition that Buyer requires Seller to correct.
506 10.3.3. Inspection Resolution. If an Inspection Objection is received by Seller, on or before Inspection Objection
507 Deadline and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Inspection Resolution Deadline,
508 this Contract will terminate on Inspection Resolution Deadline unless Seller receives Buyer’s written withdrawal of the Inspection
509 Objection before such termination (i.e., on or before expiration of Inspection Resolution Deadline). Nothing in this provision
510 prohibits the Buyer and the Seller from mutually terminating this Contract before the Inspection Resolution Deadline passes by
511 executing an Earnest Money Release.
512 10.4. Damage, Liens and Indemnity. Buyer, except as otherwise provided in this Contract or other written agreement
513 between the parties, is responsible for payment for all inspections, tests, surveys, engineering reports, or other reports performed at
514 Buyer’s request (Work) and must pay for any damage that occurs to the Property and Inclusions as a result of such Work. Buyer
515 must not permit claims or liens of any kind against the Property for Work performed on the Property. Buyer agrees to indemnify,
516 protect and hold Seller harmless from and against any liability, damage, cost or expense incurred by Seller and caused by any such
517 Work, claim, or lien. This indemnity includes Seller’s right to recover all costs and expenses incurred by Seller to defend against
518 any such liability, damage, cost or expense, or to enforce this Section, including Seller’s reasonable attorney fees, legal fees and
519 expenses. The provisions of this Section survive the termination of this Contract. This § 10.4. does not apply to items performed
520 pursuant to an Inspection Resolution.
521 10.5. Insurability. Buyer has the Right to Terminate under § 24.1., on or before Property Insurance Termination
522 Deadline, based on any unsatisfactory provision of the availability, terms and conditions and premium for property insurance
523 (Property Insurance) on the Property, in Buyer’s sole subjective discretion.
524 10.6. Due Diligence.
525 10.6.1. Due Diligence Documents. Seller agrees to deliver copies of the following documents and information
526 pertaining to the Property and Leased Items (Due Diligence Documents) to Buyer on or before Due Diligence Documents Delivery
527 Deadline:
528 10.6.1.1. Occupancy Agreements. All current leases, including any amendments or other occupancy
529 agreements, pertaining to the Property. Those leases or other occupancy agreements pertaining to the Property that survive Closing
530 are as follows (Leases): NONE SURVIVE CLOSING. AT THE TIME OF EXECUTION OF THIS AGREEMENT, THE
FOLLOWING HAVE RIGHTS TO OCCCCUPANY: RICHARD O’BRIEN COMPANIES, INC., SOB MANAGEMENT, LLC,
BRUNDAGE-BONE CONCRETE PUMPING, INC. AND NAMASTE ROOFING. SELLER SHALL PROPERLY
TERMINATE ALL LEASES, AMENDMENTS, OR OTHER OCCCUPANCY AGREEMENTS EFFECTIVE AT OR PRIOR
TO CLOSING. SHOULD ANY TENANT, OTHER THAN O’BRIEN OR SOB, FAIL TO VACATE UPON EFFECTIVE
DATE OF LEASE TERMINATION, BUYER SHALL, AT ITS OWN COST AND EXPENSE, TAKE ALL ACTIONS
NECESSARY TO REMOVE THEM FROM THE PROPERTY. BUYER FURTHER SHALL NEGOTIATE DIRECTLY
WITH AND PAY SAID TENANTS ALL DAMAGES, COMPENSATION, EXPENSESAND OTHER MONIES THAT MAY
DISCLOSURE, INSPECTION AND DUE DILIGENCE
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BE DUE UNDER ALL APPLICABLE LAW, INCLUDING FEDERAL UNIFORM RELOCATION ASSISTANCE AND REAL
PROPERTY ACQUISITION POLICIES ACT, AND DEFEND AND INDEMNIFY SELLER IN ANY LITIGATION ARISING
FROM OR OTHERWISE RELATING TO ANY CLAIM FROM BRUNDAGE-BONE CONCRETE PUMPING, INC. AND
NAMASTE ROOFING ALLEGING THAT THEY DID NOT RECEIVE APPROPRIATE COMPENSATION UNDER THE
UNIFORM RELOCATION ACT OR OTHER LAW PROVIDING RIGHTS AND/OR COMPENSATION TO SAID
TENANTS REGARDING CONDEMNATION, EMINENT DOMAIN, OR ACQUISITION BY A GOVERNMENT ENTITY
SUCH AS BUYER. BUYER SHALL NOT DEFEND OR INDEMNIFY SELLER FOR ANY BREACH OF A LEASE
UNRELATED TO BUYER’S ACQUISITION OF THE PROPERTY.
531
532
533 10.6.1.2. Leased Items Documents. If any lease of personal property (§ 2.5.7., Leased Items) will be
534 transferred to Buyer at Closing, Seller agrees to deliver copies of the leases and information pertaining to the personal property to
535 Buyer on or before Due Diligence Documents Delivery Deadline. Buyer Will Will Not assume the Seller’s obligations
536 under such leases for the Leased Items (§ 2.5.7., Leased Items).
537
538 10.6.1.3. Encumbered Inclusions Documents. If any Inclusions owned by Seller are encumbered
539 pursuant to § 2.5.4. (Encumbered Inclusions) above, Seller agrees to deliver copies of the evidence of debt, security and any other
540 documents creating the encumbrance to Buyer on or before Due Diligence Documents Delivery Deadline. Buyer Will Will
541 Not assume the debt on the Encumbered Inclusions (§ 2.5.4., Encumbered Inclusions).
542
543 10.6.1.4. Other Documents. If the respective box is checked, Seller agrees to additionally deliver copies
551 of the following:
552 10.6.1.4.1. All contracts relating to the operation, maintenance and management of the
553 Property;
554 10.6.1.4.2. Property tax bills for the last years;
555 10.6.1.4.3. As-built construction plans to the Property and the tenant improvements, including
556 architectural, electrical, mechanical and structural systems; engineering reports; and permanent Certificates of Occupancy, to the
557 extent now available;
558 10.6.1.4.4. A list of all Inclusions to be conveyed to Buyer;
559 10.6.1.4.5. Operating statements for the past years;
560 10.6.1.4.6. A rent roll accurate and correct to the date of this Contract;
561 10.6.1.4.7. A schedule of any tenant improvement work Seller is obligated to complete but
562 has not yet completed and capital improvement work either scheduled or in process on the date of this Contract;
563 10.6.1.4.8. All insurance policies pertaining to the Property and copies of any claims which
564 have been made for the past years;
XXX 10.6.1.4.9. Soils reports, surveys and engineering reports or data pertaining to the Property (if
565 not delivered earlier under § 8.3.);
566 XXX 10.6.1.4.10. Any and all existing documentation and reports regarding Phase I and II
567 environmental reports, letters, test results, advisories and similar documents respective to the existence or nonexistence of asbestos,
568 PCB transformers, or other toxic, hazardous or contaminated substances and/or underground storage tanks and/or radon gas. If no
569 reports are in Seller’s possession or known to Seller, Seller warrants that no such reports are in Seller’s possession or known to
570 Seller;
571 10.6.1.4.11. Any Americans with Disabilities Act reports, studies or surveys concerning the
572 compliance of the Property with said Act;
573 10.6.1.4.12. All permits, licenses and other building or use authorizations issued by any
574 governmental authority with jurisdiction over the Property and written notice of any violation of any such permits, licenses or use
575 authorizations, if any; and
577 XXX 10.6.1.4.13. Other: SELLER’S PROPERTY DISCLOSURE (COMMERCIAL)
PREPARED BY COLORADO REAL ESTATE COMMISSION.
578
579
580
581
582
583 10.6.2. Due Diligence Documents Review and Objection. Buyer has the right to review and object based on the Due
584 Diligence Documents. If the Due Diligence Documents are not supplied to Buyer or are unsatisfactory, in Buyer’s sole subjective
585 discretion, Buyer may, on or before Due Diligence Documents Objection Deadline:
586 10.6.2.1. Notice to Terminate. Notify Seller in writing, pursuant to § 24.1., that this Contract is terminated;
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587 or
588 10.6.2.2. Due Diligence Documents Objection. Deliver to Seller a written description of any
589 unsatisfactory Due Diligence Documents that Buyer requires Seller to correct.
590 10.6.2.3. Due Diligence Documents Resolution. If a Due Diligence Documents Objection is received by
591 Seller, on or before Due Diligence Documents Objection Deadline and if Buyer and Seller have not agreed in writing to a settlement
592 thereof on or before Due Diligence Documents Resolution Deadline, this Contract will terminate on Due Diligence Documents
593 Resolution Deadline unless Seller receives Buyer’s written withdrawal of the Due Diligence Documents Objection before such
594 termination (i.e., on or before expiration of Due Diligence Documents Resolution Deadline.
595 10.6.3. Zoning. Buyer has the Right to Terminate under § 24.1., on or before Due Diligence Documents Objection
596 Deadline, based on any unsatisfactory zoning and any use restrictions imposed by any governmental agency with jurisdiction over
597 the Property, in Buyer’s sole subjective discretion.
598 10.6.4. Due Diligence – Environmental, ADA. Buyer has the right to obtain environmental inspections of the
599 Property including Phase I and Phase II Environmental Site Assessments, as applicable. Seller X Buyer will MAY order or
600 provide Phase I Environmental Site Assessment, Phase II Environmental Site Assessment (compliant with most current version
601 of the applicable ASTM E1527 standard practices for Environmental Site Assessments) and/or ,
602 at the expense of Seller X Buyer (Environmental Inspection). In addition, Buyer, at Buyer’s expense, may also conduct an
603 evaluation whether the Property complies with the Americans with Disabilities Act (ADA Evaluation). All such inspections and
604 evaluations must be conducted at such times as are mutually agreeable to minimize the interruption of Seller’s and any Seller’s
605 tenants’ business uses of the Property, if any.
606 If Buyer’s Phase I Environmental Site Assessment recommends a Phase II Environmental Site Assessment, the Environmental
607 Inspection Termination Deadline will be extended by –14-- days (Extended Environmental Inspection
608 Objection Deadline) and if such Extended Environmental Inspection Objection Deadline extends beyond the Closing Date, the
609 Closing Date will be extended a like period of time. In such event, Seller X Buyer must pay the cost for such Phase II
610 Environmental Site Assessment.
611 Notwithstanding Buyer’s right to obtain additional environmental inspections of the Property in this § 10.6.4.,SELLER HAS NO
KNOWLEDGE OF ANY POLLUTANTS, CONTAMINANTS, HAZARDOUS MATERIALS, OR OTHER POLLUTION OR
CONTAMINATION OF THE PROPERTY SUBJECT TO OR REQUIRING REMEDIATION BY THE COMPRENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, CLEAN WATER ACT, OR OTHER FEDERAL,
STATE, OR LOCAL LAWS (COLLECTIVELY “ENVIRONMENTAL CONTAMINATION”).
612 Right to Terminate under § 24.1., on or before Environmental Inspection Termination Deadline, or i f applicable, the Extended
613 Environmental Inspection Objection Deadline, based on any unsatisfactory results of Environmental Inspection, in Buyer’s sole
614 subjective discretion.
615 Buyer has the Right to Terminate under § 24.1., on or before ADA Evaluation Termination Deadline, based on any
616 unsatisfactory ADA Evaluation, in Buyer’s sole subjective discretion.
617 10.7. Conditional Upon Sale of Property. This Contract is conditional upon the sale and closing of that certain property
618 owned by Buyer and commonly known as . Buyer has
619 the Right to Terminate under § 24.1. effective upon Seller’s receipt of Buyer’s Notice to Terminate on or before Conditional Sale 620
Deadline if such property is not sold and closed by such deadline. This Section is for the sole benefit of Buyer. If Seller does not 621
receive Buyer’s Notice to Terminate on or before Conditional Sale Deadline, Buyer waives any Right to Terminate under this 622
provision.
623 10.8. Source of Potable Water (Residential Land and Residential Improvements Only). [Intentionally Deleted - See
624 Residential Addendum if applicable]
625 10.9. Existing Leases; Modification of Existing Leases; New Leases. Seller states that none of the Leases to be assigned
626 to the Buyer at the time of Closing contain any rent concessions, rent reductions or rent abatements except as disclosed in t he Lease
627 or other writing received by Buyer. Seller will not amend, alter, modify, extend or cancel any of the Leases nor will Seller enter into
628 any new leases affecting the Property without the prior written consent of Buyer, which consent will not be unreasonably with held
629 or delayed.
630 10.10. Lead-Based Paint. [Intentionally Deleted - See Residential Addendum if applicable]
631 10.11. Carbon Monoxide Alarms. [Intentionally Deleted - See Residential Addendum if applicable]
632 10.12. Methamphetamine Disclosure. [Intentionally Deleted - See Residential Addendum if applicable]
633 11. TENANT ESTOPPEL STATEMENTS.
634 11.1. Estoppel Statements Conditions. Buyer has the right to review and object to any Estoppel Statements. Seller must
635 request from all tenants of the Property and if received by Seller, deliver to Buyer on or before Estoppel Statements
Deadline,
636 statements in THE FORM CREATED BY THE COLORADO REAL ESTATE COMMISSION a form and substance
reasonably acceptable to Buyer , from each occupant or tenant at the Property (Estoppel Statement)
637 attached to a copy of the Lease stating:
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638 11.1.1. The commencement date of the Lease and scheduled termination date of the Lease;
639 11.1.2. That said Lease is in full force and effect and that there have been no subsequent modifications or
640 amendments;
641 11.1.3. The amount of any advance rentals paid, rent concessions given and deposits paid to Seller;
642 11.1.4. The amount of monthly (or other applicable period) rental paid to Seller;
643 11.1.5. That there is no default under the terms of said Lease by landlord or occupant; and
644 11.1.6. That the Lease to which the Estoppel Statement is attached is a true, correct and complete copy of the Lease
645 demising the premises it describes.
646 11.2. Seller Estoppel Statement. In the event Seller does not receive from all tenants of the Property a completed signed
647 Estoppel Statement, Seller agrees to complete and execute an Estoppel Statement setting forth the information and
documents
648 Required by §11.1. above and deliver the same to Buyer on or before Estoppel Statements Deadline.
649 11.3. Estoppel Statements Termination. Buyer has the Right to Terminate under § 24.1., on or before Estoppel
650 Statements Termination Deadline, based on any unsatisfactory Estoppel Statement, in Buyer’s sole subjective discretion,
or if Seller fails to deliver the Estoppel Statements on or before Estoppel Statements Deadline. Buyer also has the
unilateral right to waive any unsatisfactory Estoppel Statement.
653
655 12. CLOSING DOCUMENTS, INSTRUCTIONS AND CLOSING.
655 12.1. Closing Documents and Closing Information. Seller and Buyer will cooperate with the Closing Company to enable
the Closing Company to prepare and deliver documents required for Closing to Buyer and Seller and their designees. If Buyer is
657 obtaining a loan to purchase the Property, Buyer acknowledges Buyer’s lender is required to provide the Closing Company, in a 658
timely manner, all required loan documents and financial information concerning Buyer’s loan. Buyer and Seller will furnish any additional
information and documents required by Closing Company that will be necessary to complete this transaction. Buyer and
659 Seller will sign and complete all customary or reasonably required documents at or before Closing.
660 12.2. Closing Instructions. Colorado Real Estate Commission’s Closing Instructions Are X Are Not executed with
661 this Contract.
662 12.3. Closing. Delivery of deed from Seller to Buyer will be at closing (Closing). Closing will be on the date specified as
663 the Closing Date or by mutual agreement at an earlier date. At Closing, Seller agrees to deliver a set of keys for the Property
to Buyer. The hour and place of Closing will be as designated by MUTUAL AGREEMENT OF THE PARTIES .
666 12.4. Disclosure of Settlement Costs. Buyer and Seller acknowledge that costs, quality and extent of service vary between
667 different settlement service providers (e.g., attorneys, lenders, inspectors and title companies).
668 12.5. Assignment of Leases. Seller WARRANTS THAT NO LEASES SHALL CONTINUE AFTER CLOSING. must
assign to Buyer all Leases at Closing that will continue after Closing and Buyer 669 must assume Seller’s obligations under such Leases.
Further, Seller must transfer to Buyer all Leased Items and assign to Buyer such 670 leases for the Leased Items accepted by Buyer pursuant
to § 2.5.7. (Leased Items).
671 13. TRANSFER OF TITLE. Subject to Buyer’s compliance with the terms and provisions of this Contract, including the tender
672 of any payment due at Closing, Seller must execute and deliver the following good and sufficient deed to Buyer, at Closing:
673 XX special warranty deed general warranty deed bargain and sale deed quit claim deed personal representative’s deed
674 deed. Seller, provided another deed is not selected, must execute and deliver a good and
675 sufficient special warranty deed to Buyer, at Closing.
676 Unless otherwise specified in § 29 (Additional Provisions), if title will be conveyed using a special warranty deed or a general
677 warranty deed, title will be conveyed “subject to statutory exceptions” as defined in §38-30-113(5)(a), C.R.S.
678 14. PAYMENT OF LIENS AND ENCUMBRANCES. Unless agreed to by Buyer in writing, any amounts owed on any liens
679 or encumbrances securing a monetary sum against the Property and Inclusions, including any governmental liens for special
680 improvements installed as of the date of Buyer’s signature hereon, whether assessed or not, and previous years’ taxes, will b e paid
681 at or before Closing by Seller from the proceeds of this transaction or from any other source.
682 15. CLOSING COSTS, FEES, ASSOCIATION STATUS LETTER AND DISBURSEMENTS, TAXES AND
683 WITHHOLDING.
684 15.1. Closing Costs. Buyer and Seller must pay, in Good Funds, their respective closing costs and all other items required
685 to be paid at Closing, except as otherwise provided herein.
686 15.2. Closing Services Fee. The fee for real estate closing services must be paid at Closing by XXXBuyer Seller
687 One-Half by Buyer and One-Half by Seller Other .
CLOSING PROVISIONS
X
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688 15.3. Association Fees and Required Disbursements. At least fourteen days prior to Closing Date, Seller agrees to
689 promptly request that the Closing Company or the Association deliver to Buyer a current Status Letter, if applicable. Any fees
687 690 associated with or specified in the Status Letter will be paid as follows:
691 15.3.1. Status Letter Fee. Any fee incident to the issuance of Association’s Status Letter must be paid by Buyer
692 Seller One-Half by Buyer and One-Half by Seller N/A.
693 15.3.2. Record Change Fee. Any Record Change Fee must be paid by XXX Buyer Seller One-Half by Buyer
694 and One-Half by Seller N/A.
695 15.3.3. Assessments, Reserves or Working Capital. All assessments APPLICABLE TO THE PROPERTY
AND ACCRUING PRIOR TO THE DATE OF CLOSING must be paid by
by Buyer X Seller One-Half by Buyer and One-Half by Seller N/A.
698 15.3.4. Other Fees. Any other fee listed in the Status Letter as required to be paid at Closing will be paid by
699 Buyer Seller One-Half by Buyer and One-Half by Seller X N/A.
700 15.4. Local Transfer Tax. Any Local Transfer Tax must be paid at Closing by X Buyer Seller One-Half by
701 Buyer and One-Half by Seller N/A.
702 15.5. Sales and Use Tax. Any sales and use tax that may accrue because of this transaction must be paid when due by
X Buyer Seller One-Half by Buyer and One-Half by Seller N/A.
703 15.6. Private Transfer Fee. Any private transfer fees and other fees due to a transfer of the Property, payable at Closing,
such as community association fees, developer fees and foundation fees, must be paid at Closing by X Buyer Seller
706 One-Half by Buyer and One-Half by Seller N/A.
707 15.7. Water Transfer Fees. Water Transfer Fees can change. The fees, as of the date of this Contract, do not exceed
708 $N/A for:
709 Water Stock/Certificates Water District
710 Augmentation Membership Small Domestic Water Company
711 and must be paid at Closing by XXBuyer Seller One-Half by Buyer and One-Half by Seller N/A.
712 15.8. Utility Transfer Fees. Utility transfer fees can change. Any fees to transfer utilities from Seller to Buyer must be
713 paid by XXBuyer Seller One-Half by Buyer and One-Half by Seller N/A.
714 15.9. FIRPTA and Colorado Withholding.
715 15.9.1. FIRPTA. The Internal Revenue Service (IRS) may require a substantial portion of the Seller’s proceeds be withheld
after Closing when Seller is a foreign person. If required withholding does not occur, the Buyer could be held liable for the amount of the
Seller’s tax, interest and penalties. If the box in this Section is checked, Seller represents that Seller IS a foreign
person for purposes of U.S. income taxation. If the box in this Section is no t checked, Seller represents that Seller is not a foreign person
for purposes of U.S. income taxation. Seller agrees to cooperate with Buyer and Closing Company to provide any reasonably requested
documents to verify Seller’s foreign person status. If withholding is required, Seller authorizes Closing Company to withhold such
amount from Seller’s proceeds. Seller should inquire with Seller’s tax advisor to determine if withholding applies or if an exemption exists.
716
723 15.9.2. Colorado Withholding. The Colorado Department of Revenue may require a portion of the Seller’s proceeds
724 be withheld after Closing when Seller will not be a Colorado resident after Closing, if not otherwise exempt. Seller agrees to
cooperate with Buyer and Closing Company to provide any reasonably requested documents to verify Seller’s status. If withholding is
required, Seller authorizes Closing Company to withhold such amount from Seller’s proceeds. Seller should inquire with Seller ’s tax advisor
to determine if withholding applies or if an exemption exists.
728 16. PRORATIONS AND ASSOCIATION ASSESSMENTS.
729 16.1. Prorations. The following will be prorated to the Closing Date, except as otherwise provided:
730 16.1.1. Taxes. Personal property taxes, if any, special taxing district assessments, if any, and general real estate taxes
731 for the year of Closing, based on Taxes for the Calendar Year Immediately Preceding Closing X Most Recent Mill Levy
732 and Most Recent Assessed Valuation, adjusted by any applicable qualifying seniors property tax exemption, qualifying disabled
veteran exemption or Other .
734 16.1.2. Rents. Rents based on Rents Actually Received Accrued. At Closing, Seller will transfer or credit
735 to Buyer the security deposits for all Leases assigned to Buyer, or any remainder after lawful deductions, and notify all tenants in 736
writing of such transfer and of the transferee’s name and address.
737 16.1.3. Other Prorations. Water and sewer charges, propane, interest on continuing loan and ANY OTHER FEE, COST,
UTILITIES, OR OTHER TAXES OR ASSESSMENTS INCURRED BY SELLER AND/OR ACCRUING TO THE PROPERTY PRIOR
TO THE DATE OF CLOSING.
738 16.1.4. Final Settlement. Unless otherwise specified in Additional Provisions, these prorations are final.
739 16.2. Association Assessments. Current regular Association assessments and dues (Association Assessments) paid in 740
advance will be credited to Seller at Closing. Cash reserves held out of the regular Association Assessments for deferred maintenance 741 by
the Association will not be credited to Seller except as may be otherwise provided by the Governing Documents. Buyer 742
acknowledges that Buyer may be obligated to pay the Association, at Closing, an amount for reserves or working capital. Any special 743
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assessment assessed prior to Closing Date by the Association will be the obligation of Buyer Seller. Except however, any 744 special
assessment by the Association for improvements that have been installed as of the date of Buyer’s signature hereon, whether 745 assessed
prior to or after Closing, will be the obligation of Seller unless otherwise specified in Additional Provisions. Seller repre sents 746 there are no
unpaid regular or special assessments against the Property except the current regular assessments and
747 . Association Assessments are subject to change as provided in the Governing Documents.
748 17. POSSESSION. Possession of the Property and Inclusions will be delivered to Buyer on Possession Date at Possession Time,
749 subject to the Leases as set forth in § 10.6.1.1.
750 If Seller, after Closing occurs, fails to deliver possession as specified, Seller will be subject to eviction and will be additionally
751 liable to Buyer, notwithstanding § 20.2. (If Seller is in Default), for payment of $500 per day (or any part of a day
752 notwithstanding § 3.3., Day) from Possession Date and Possession Time until possession is delivered. WHILE SELLER WILL
PROPERLY TERMINATE LEASES OF TENANTS AND OTHERS IN POSSESSION EFFECTIVE ON OR BEFORE THE
CLOSING DATE, SELLER MAKES NO REPRESENTATION OR WARRANTY THAT SUCH TENANTS WILL VACATE THE
PROPERTY ON OR BEFORE THE CLOSING DATE, EXCEPT FOR TENANTS RICHARD O’BRIEN CONCRETE AND SOB
MANAGEMENT. THE PARTIES AGREE AND ACKNOWLEDGE THAT BUYER WILL BE RESPONSIBLE FOR
REMOVING ANY HOLDOVER TENANTS EXCEPT FOR TENANTS RICHARD O’BRIEN CONCRETE AND SOB
MANAGEMENT IN ACCORDANCE WITH SECTION 10.6.1.1 HEREOF.
753
754 18. CAUSES OF LOSS, INSURANCE; DAMAGE TO INCLUSIONS AND SERVICES; CONDEMNATION; AND
755 WALK-THROUGH. Except as otherwise provided in this Contract, the Property, Inclusions or both will be delivered in the
756 condition existing as of the date of this Contract, ordinary wear and tear excepted.
757 18.1. Causes of Loss, Insurance. In the event the Property or Inclusions are damaged by fire, other perils or causes of loss
758 prior to Closing (Property Damage) in an amount of not more than ten percent of the total Purchase Price and if the repair of the
759 damage will be paid by insurance (other than the deductible to be paid by Seller), then Seller, upon receipt of the insurance proceeds,
760 will use Seller’s reasonable efforts to repair the Property before Closing Date. Buyer has the Right to Terminate under § 24.1., on
761 or before Closing Date, if the Property is not repaired before Closing Date, or if the damage exceeds such sum. Should Buyer elect
762 to carry out this Contract despite such Property Damage, Buyer is entitled to a credit at Closing for all insurance proceeds that were
763 received by Seller (but not the Association, if any) resulting from damage to the Property and Inclusions, plus the amount of any
764 deductible provided for in the insurance policy. This credit may not exceed the Purchase Price. In the event Seller has not r eceived
765 the insurance proceeds prior to Closing, the parties may agree to extend the Closing Date to have the Property repaired prior to
766 Closing or, at the option of Buyer, (1) Seller must assign to Buyer the right to the proceeds at Closing, if acceptable to Seller’s
767 insurance company and Buyer’s lender; or (2) the parties may enter into a written agreement prepared by the parties or their attorney
768 requiring the Seller to escrow at Closing from Seller’s sale proceeds the amount Seller has received and will receive due to such
769 damage, not exceeding the total Purchase Price, plus the amount of any deductible that applies to the insurance claim.
770 18.2. Damage, Inclusions and Services. Should any Inclusion or service (including utilities and communication services),
771 system, component or fixture of the Property (collectively Service) (e.g., heating or plumbing), fail or be damaged between the date
772 of this Contract and Closing or possession, whichever is earlier, then Seller is liable for the repair or replacement of such Inclusion
773 or Service with a unit of similar size, age and quality, or an equivalent credit, but only to the extent that the maintenance or
774 replacement of such Inclusion or Service is not the responsibility of the Association, if any, less any insurance proceeds received by
775 Buyer covering such repair or replacement. If the failed or damaged Inclusion or Service is not repaired or replaced on or be fore
776 Closing or possession, whichever is earlier, Buyer has the Right to Terminate under § 24.1., on or before Closing Date, or, at the
777 option of Buyer, Buyer is entitled to a credit at Closing for the repair or replacement of such Inclusion or Service. Such credit must
778 not exceed the Purchase Price. If Buyer receives such a credit, Seller’s right for any claim against the Association, if any, will survive
779 Closing.
780 18.3. Condemnation. In the event Seller receives actual notice prior to Closing that a pending condemnation action may 781
result in a taking of all or part of the Property or Inclusions, Seller must promptly notify Buyer, in writing, of such conde mnation 782 action.
Buyer has the Right to Terminate under § 24.1., on or before Closing Date, based on such condemnation action, in Buyer’s 783 sole
subjective discretion. Should Buyer elect to consummate this Contract despite such diminution of value to the Pr operty and 784 Inclusions,
Buyer is entitled to a credit at Closing for all condemnation proceeds awarded to Seller for the diminution in the value 785 of the Property
or Inclusions, but such credit will not include relocation benefits or expenses or exceed the Purchase Price.
786 18.4. Walk-Through and Verification of Condition. Buyer, upon reasonable notice, has the right to walk through the
787 Property prior to Closing to verify that the physical condition of the Property and Inclusions complies with this Contract.
788 19. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this Contract, Buyer and Seller acknowledge that 789
their respective broker has advised that this Contract has important legal consequences and has recommended: (1) legal examination 790 of
title; (2) consultation with legal and tax or other counsel before signing this Contract as this Contract may have important legal 791 and tax
GENERAL PROVISIONS
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implications; (3) to consult with their own attorney if Water Rights, Mineral Rights or Leased Items are included or excluded 792 in the sale;
and (4) to consult with legal counsel if there are other matters in this transaction for which legal counsel should be 793 engaged and
consulted. Such consultations must be done timely as this Contract has strict time limits, including deadlines, that must 794 be complied with.
795
796 20. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence for all dates and deadlines in this Contract.
797 This means that all dates and deadlines are strict and absolute. If any payment due, including Earnest Money, is not paid, ho nored
798 or tendered when due, or if any obligation is not performed timely as provided in this Contract or waived, the non-defaulting party
799 has the following remedies:
800 20.1. If Buyer is in Default AND FAILS TO CURE SAID DEFAULT WITHIN 20 DAYS OF NOTICE BY SELLER:
801 XXX 20.1.1. Specific Performance. Seller may elect to cancel this Contract and all Earnest Money (whether or not paid
802 by Buyer) will be paid to Seller and retained by Seller. It is agreed that the Earnest Money is not a penalty, and the partie s agree the
803 amount is fair and reasonable. Seller may recover such additional damages as may be proper. Alternatively, Seller may elect to treat
804 this Contract as being in full force and effect and Seller has the right to specific performance or damages, or both.
805 20.1.2. Liquidated Damages, Applicable. This § 20.1.2. applies unless the box in § 20.1.1. is checked. Seller may 806
cancel this Contract. All Earnest Money (whether or not paid by Buyer) will be paid to Seller and retained by Seller. It is agreed that 807 the
Earnest Money amount specified in § 4.1. is LIQUIDATED DAMAGES and not a penalty, which amount the parties agree is 808 fair and
reasonable and (except as provided in §§ 10.4. and 21), such amount is SELLER’S ONLY REMEDY for Buyer’s failure to 809 perform the
obligations of this Contract. Seller expressly waives the remedies of specific performance and additional damages.
810 20.2. If Seller is in Default:
811 20.2.1. Specific Performance, Damages or Both. Buyer may elect to treat this Contract as canceled, in which case
812 all Earnest Money received hereunder will be returned to Buyer and Buyer may recover such damages as may be proper.
813 Alternatively, in addition to the per diem in § 17 (Possession) for failure of Seller to timely deliver pos session of the Property after
814 Closing occurs, Buyer may elect to treat this Contract as being in full force and effect and Buyer has the right to specific performance
815 or damages, or both.
816 20.2.2. Seller’s Failure to Perform. In the event Seller fails to perform Seller’s obligations under this Contract, to
817 include, but not limited to, failure to timely disclose Association violations known by Seller, failure to perform any replac ements or
818 repairs required under this Contract or failure to timely disclose any known adverse material facts, Seller remains liable for any such
819 failures to perform under this Contract after Closing. Buyer’s rights to pursue the Seller for Seller’s failure to perform un der this
820 Contract are reserved and survive Closing.
821 21. LEGAL FEES, COST AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of any arbitration
822 or litigation relating to this Contract, prior to or after Closing Date, the arbitrator or court must award to the prevailing party all
823 reasonable costs and expenses, including attorney fees, legal fees and expenses.
824 22. MEDIATION. If a dispute arises relating to this Contract (whether prior to or after Closing) and is not resolved, the parties
825 must first proceed, in good faith, to mediation. Mediation is a process in which the parties meet with an impartial person wh o helps
826 to resolve the dispute informally and confidentially. Mediators c annot impose binding decisions. Before any mediated settlement is
827 binding, the parties to the dispute must agree to the settlement, in writing. The parties will jointly appoint an acceptable mediator
828 and will share equally in the cost of such mediation. The obligation to mediate, unless otherwise agreed, will terminate if the entire
829 dispute is not resolved within thirty days of the date written notice requesting mediation is delivered by one party to the other at that
830 party’s last known address (physical or electronic as provided in § 26). Nothing in this Section prohibits either party from filing a
831 lawsuit and recording a lis pendens affecting the Property, before or after the date of written notice requesting mediation. This
832 Section will not alter any date in this Contract, unless otherwise agreed.
833 23. EARNEST MONEY DISPUTE. Except as otherwise provided herein, Earnest Money Holder must release the Earnest
834 Money following receipt of written mutual instructions, signed by both Buyer and Seller. In the event of any controversy regarding
835 the Earnest Money, Earnest Money Holder is not required to release the Earnest Money. Earnest Money Holder, in its sole subjective 836
discretion, has several options: (1) wait for any proceeding between Buyer and Seller; (2) interplead all parties and deposit Earnest 837
Money into a court of competent jurisdiction (Earnest Money Holder is entitled to recover court costs and reasonable attorney and 838 legal
fees incurred with such action); or (3) provide notice to Buyer and Seller that unless Earnest Money Holder receives a copy o f 839 the
Summons and Complaint or Claim (between Buyer and Seller) containing the case number of the law suit (Lawsuit) within one 840 hundred
twenty days of Earnest Money Holder’s notice to the parties, Earnest Money Holder is authorized to return the Earnest 841 Money to
Buyer. In the event Earnest Money Holder does receive a copy of the Lawsuit and has not interpled the monies at the time 842 of any Order,
Earnest Money Holder must disburse the Earnest Money pursuant to the Order of the Court. The parties reaffirm the 843 obligation of § 22
(Mediation). This Section will survive cancellation or termination of this Contract.
844 24. TERMINATION.
845 24.1. Right to Terminate. If a party has a right to terminate, as provided in this Contract (Right to Terminate), the
846 termination is effective upon the other party’s receipt of a written notice to terminate (Notice to Terminate), provided such written
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847 notice was received on or before the applicable deadline specified in this Contract. If the Notice to Terminate is not receiv ed on or
848 before the specified deadline, the party with the Right to Terminate accepts the specified matter, document or condition as satisfactory
849 and waives the Right to Terminate under such provision.
850 24.2. Effect of Termination. In the event this Contract is terminated, and all Earnest Money received hereunder is timely
851 returned to Buyer, the parties are relieved of all obligations hereunder, subject to §§ 10.4. and 21.
852 25. ENTIRE AGREEMENT, MODIFICATION, SURVIVAL; SUCCESSORS. This Contract, its exhibits and specified
853 addenda, constitute the entire agreement between the parties relating to the subject hereof and any prior agreements pertaining
854 thereto, whether oral or written, have been merged and integrated into this Contract. No subsequent modification of any of the terms
855 of this Contract is valid, binding upon the parties, or enforceable unless made in writing and signed by the parties. Any right or
856 obligation in this Contract that, by its terms, exists or is intended to be performed after termination or Closing survives the same.
857 Any successor to a party receives the predecessor’s benefits and obligations of this Contract.
858 26. NOTICE, DELIVERY AND CHOICE OF LAW.
859 26.1. Physical Delivery and Notice. Any document or notice to Buyer or Seller must be in writing, except as provided in
860 § 26.2. and is effective when physically received by such party, any individual named in this Contract to receive documents or
861 notices for such party, ATTORNEY, Broker, or Brokerage Firm of Broker working with such party (except any notice or delivery
after Closing 862 must be received by the party, not , ATTORNEY, Broker or Brokerage Firm).
863 26.2. Electronic Notice. As an alternative to physical delivery, any notice may be delivered in electronic form to Buyer or
864 Seller, any individual named in this Contract to receive documents or notices for such party, Broker or Brokerage Firm of Broker
865 working with such party (except any notice or delivery after Closing, cancellation or Termination must be received by the party, not 866
Broker or Brokerage Firm) at the electronic address of the recipient by facsimile, email or .
867 26.3. Electronic Delivery. Electronic Delivery of documents and notice may be delivered by: (1) email at the email address
868 of the recipient, (2) a link or access to a website or server provided the recipient receives the information necessary to access the
869 documents, or (3) facsimile at the facsimile number (Fax No.) of the recipient.
870 26.4. Choice of Law. This Contract and all disputes arising hereunder are governed by and construed in accordance with
871 the laws of the State of Colorado that would be applicable to Colorado residents who sign a contract in Colorado for real property
872 located in Colorado.
873 27. NOTICE OF ACCEPTANCE, COUNTERPARTS. This proposal will expire unless accepted in writing, by Buyer and
874 Seller, as evidenced by their signatures below and the offering party receives notice of such acceptance pursuant to § 26 on or before 875
Acceptance Deadline Date and Acceptance Deadline Time. If accepted, this document will become a contract between Seller and
876 Buyer. A copy of this Contract may be executed by each party, separately and when each party has executed a copy thereof, suc h
877 copies taken together are deemed to be a full and complete contract between the parties.
878 28. GOOD FAITH. Buyer and Seller acknowledge that each party has an obligation to act in good faith including, but not limited
879 to, exercising the rights and obligations set forth in the provisions of Financing Conditions and Obligations; Title Insurance,
880 Record Title and Off-Record Title; New ILC, New Survey; and Property Disclosure, Inspection, Indemnity, Insurability and
881 Due Diligence.
882
883 29. ADDITIONAL PROVISIONS.
PLEASE SEE ADDENDUM A, ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE.
30. OTHER DOCUMENTS.
30.1. Documents Part of Contract. The following documents are a part of this Contract AND THE PROVISIONS OF THE
EXHIBITS ARE INCORPORATED BY REFERENCE AS IF FULLY SET FORTH HEREIN: ALL DOCUMENTS AND EXHIBITS
REFERENCED HEREIN; ALL DOCUMENTS REQUIRED TO BE COMPLETED AND/OR PRODUCED BY EITHER PARTY;
EXHIBIT A, LEGAL DESCRIPTION; EXHIBIT B, SEPTEMBER 9, 2021 MEMORANDUM OF UNDERSTANDING REGARDING
PROPERTY ACQUISITION; AND ADDENDUM A TO THIS CONTRACT.
(signatures begin next page)
ADDITIONAL PROVISIONS AND ATTACHMENTS
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905
Buyer’s Name: City of Englewood
__________________________________________________
Buyer’s Name:
_________________________________________________
Buyer’s Signature Date Buyer’s Signature Date
Address: 1000 Englewood Parkway
Englewood, CO 80110
Address:
Phone No.: (303) 762-2320 Phone No.:
Fax No.: Fax No.:
Email Address: Email Address:
906 [NOTE: If this offer is being countered or rejected, do not sign this document.]
Seller’s Signature Date Seller’s Signature Date
Address: 4388 S. Windermere Street
Englewood, CO 80110
Address:
Phone No.:
(303) 778 -8771
Phone No.:
Fax No.: Fax No.:
Email Address: Email Address:
907
908
SIGNATURES
Seller’s Name: 4390 South Windermere, LLC Seller’s Name:
END OF CONTRACT TO BUY AND SELL REAL ESTATE
3/24/2022
steve@shamrockplastering.net
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4/19/2022
osierra@englewoodco.gov
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EXHIBIT A
All that tract of land described in the Warranty Deed recorded on October 4, 2010, at
Reception Number D0099569, in the Arapahoe County Clerk and Recorder’s Office, as
described within said deed below:
Legal Description of 4390 South Windermere Street, Englewood, CO 80110
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EXHIBIT B
SEPTEMBER 9, 2021 MEMORANDUM OF UNDERSTANDING REGARDING PROPERTY ACQUISITION
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Page 1—Addendum A
ADDENDUM A TO
CONTRACT TO BUY AND SELL REAL ESTATE (COMMERCIAL)
BETWEEN 4390 SOUTH WINDERMERE, LLC (“SELLER”) AND
CITY OF ENGLEWOOD (“BUYER”).
29. ADDITIONAL PROVISIONS. (The following additional provisions have not been
approved by the Colorado Real Estate Commission.)
A. In the event of any conflict between the terms and provisions which are set forth in
this Section 29 of this Contract and the preprinted portions of this Contract approved by the
Colorado Real Estate Commission, as amended herein, the terms and provisions of this Section 29
as set forth in this Addendum shall govern.
B. THIS CONTRACT IS ENTERED INTO BETWEEN BUYER AND SELLER IN
LIEU OF CONDEMNATION/EMINENT DOMAIN PROCEEDINGS. SELLER
ACKNOWLEDGES AND AGREES THAT BY SIGNING THIS AGREEMENT, IT MAY BE
WAIVING RIGHTS, INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO CONTEST
BUYER’S TAKING OF POSSESSION OR TITLE TO THE PROPERTY BY EMINENT
DOMAIN.
C. SELLER CONTEMPLATES A 1031 OR 1033 EXCHANGE, FOR THE
PROPERTY SUBJECT TO THIS CONTRACT. ANY COSTS RELATED TO SUCH AN
EXCHANGE SHALL BE AT THE SOLE COST AND EXPENSE OF SELLER, BUT BUYER
SHALL REASONABLY COOPERATE WITH ANY REQUIREMENTS OF
ACCCOMPLISHING AN EXCHANGE, SUCH AS EXECUTION OF ANY DOCUMENTS
REQUIRED OF THE BUYER.
D. IN ADDITION TO THE PURCHASE PRICE, BUYER AGREES TO PAY
SELLER FOR ONE-HALF OF $15,787.50 APPRAISAL FEE PAID TO CLAYTON AND
COMPANY, INC. REGARDING THE PROPERTY, FOR AN ADDITIONAL $7,893.75 PLUS
THE PURCHASE PRICE ABOVE.
E. THE PARTIES TO THE CONTRACT, AND PROPERTY TENANTS RICHARD
O’BRIEN COMPANIES, INC. AND SOB MANAGEMENT, LLC (COLLECTIVELY
“TENANTS”), RECOGNIZE THAT COMPENSATION PAID HEREUNDER IS THE AGREED
AMOUNT OF JUST COMPENSATION DETERMINED BY AN APPROPRIATE
VALUATION PROCEDURE, AS NEGOTIATED BY THE PARTIES. THE AMOUNT OF
MONEY AND/OR COMPENSATION LISTED ABOVE CONSTITUTES ALL AMOUNTS
DUE TO SELLER AND TENANTS FROM BUYER FOR THE PROPERTY, EASEMENTS,
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IMPROVEMENTS, RELOCATION BENEFITS, AND ALL OTHER DAMAGES, BENEFITS,
COSTS, AND EXPENSES OF ANY KIND DUE AND PAYABLE TO SELLERS UNDER THE
FEDERAL UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY
ACQUISITION POLICIES ACT OR OTHER APPLICABLE LAW. THE PARTIES AND
TENANTS AGREE THEY WILL NOT SEEK, NOR ARE THEY ENTITLED TO RECEIVE,
PROPERTY VALUE, RELOCATION BENEFITS, OR ANY OTHER COMPENSATION OR
REIMBURSEMENTS ARISING OUT OF OR RELATED TO BUYER’S ACQUISITION OF
THE PROPERTY. TENANTS’ SIGNATURE BELOW ESTABLISHES THEIR AGREEMENT
TO AND THE BINDING NATURE OF THE PROVISIONS OF THIS PARAGRAPH TO
TENANTS.
F. SELLER AND ANY LICENSEE OR INVITEE OF SELLER OR OTHER
PERSON CLAIMING POSSESSORY RIGHTS THROUGH AGREEMENT WITH SELLER
(SUCH AS A TENANT) MAY MAINTAIN POSSESSION OF THE PROPERTY UNTIL THE
LATER OF CLOSING OR MAY 1, 2022. SELLER SHALL NOT TAKE OR ALLOW ANY
ACTION TO CHANGE THE CONDITION OF THE PROPERTY FROM THE DATE OF
CLOSING UNTIL BUYER TAKES POSSESSION. SELLER’S POSSESSION OF THE
PROPERTY FROM AND AFTER CLOSING IS AT SELLER’S OWN RISK, COST AND
EXPENSE, AND BUYER MAKES NO WARRANTIES AS TO THE CONDITION OF THE
PROPERTY DURING SELLER’S POSSESSION AFTER CLOSING. DURING ANY PERIOD
BETWEEN CLOSING AND MAY 1, 2022, SELLER SPECIFICALLY AND KNOWINGLY
WAIVES ANY POTENTIAL CLAIMS AGAINST BUYER ARISING OUT OF PREMISES
LIABILITY. IF THIS WAIVER IS DEEMED UNENFORCEABLE, THE PARTIES AGREE
BUYER ONLY OWES DUTIES TO SELLER THAT IT WOULD OWE TO A TRESPASSER,
AND BUYER OWES NO DUTIES TO A LICENSEE OR INVITEE. SELLER AGREES TO
DEFEND AND INDEMNIFY BUYER FROM ANY PREMISES LIABILITY CLAIMS
REGARDING THE PROPERTY FROM THE DATE OF CLOSING UNTIL SELLER GIVES
POSSESSION TO BUYER, INCLUDING CLAIMS BROUGHT BY ANY TENANT, INVITEE,
OR LICENSEE OF SELLER. TO ENSURE COMPLIANCE WITH THIS PROVISION, SELLER
SHALL MAINTAIN LIABILITY INSURANCE FOR PREMISES LIABILITY ARISING OUT
OF THE PROPERTY UNTIL IT GIVES POSSESSION OF THE PROPERTY TO BUYER.
G. WHILE BUYER MAKES NO ASSERTIONS UNDER APPLICABLE TAX
LAWS, IF THE TOTAL AMOUNT OF COMPENSATION PAID HEREUNDER IS LESS
THAN FAIR MARKET VALUE, SELLER MAY BE ABLE TO ESTABLISH THIS IS A
DONATION FROM SELLER TO BUYER, A GOVERNMENT ENTITY, THAT MAY BE TAX
DEDUCTIBLE OR PROVIDE OTHER TAX BENEFITS.
H. SELLER SHALL BE RESPONSIBLE FOR OBTAINING AND EXECUTING
ALL NECESSARY CLOSING DOCUMENTS TO CONVEY CLEAR TITLE TO BUYER,
INCLUDING ALL DOCUMENTS REQUIRED ABOVE, A STATEMENT OF AUTHORITY,
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WARRANTY DEED, W-9, RELEASES OF LIENS AND FINANCIAL ENCUMBRANCES,
ANY CONSERVATION EASEMENTS OR OTHER OWNERSHIP RIGHTS THAT MAY BE
IMPACTED BY THE ACQUISITION. SELLER SHALL DO THIS PRIOR TO TRANSFER OF
TITLE TO BUYER AND PRIOR TO DISBURSEMENT OF FUNDS TO SELLER.
I. ON SEPTEMBER 9, 2021, BUYER, SELLER, RICHARD O’BRIEN
COMPANIES, INC. AND SOB MANAGEMENT, LLC EXECUTED A MEMORANDUM OF
UNDERSTANDING REGARDING PROPERTY ACQUISITION (HEREINAFTER “MOU”). A
COPY OF THE MOU IS ATTACHED TO THE CONTRACT AS EXHIBIT B AND
INCORPORATED HEREIN. PARAGRAPH 2.A. OF THE MOU STATES, IN PERTINENT
PART AS FOLLOWS: MAXIMUM ACQUISITION PRICE. O’BRIEN, SOB, WINDERMERE,
AND ALL OTHER PARTIES WITH COMMON OWNERSHIP AND A POSSESSORY
AND/OR OWNERSHIP INTEREST IN THE PROPERTY (BUT SPECIFICALLY
EXCLUDING ANY THIRD PARTY TENANTS WITH AN EXISTING TENANCY AT THE
PROPERTY), AGREE THAT, EXCEPT AS OTHERWISE PROVIDED BY THIS CONTRACT,
THEY WILL NOT SEEK, NOR ARE THEY ENTITLED TO RECEIVE, PROPERTY VALUE,
RELOCATION BENEFITS, OR ANY OTHER COMPENSATION ARISING OUT OF OR
RELATED TO THE CITY’S ACQUISITION OF THE PROPERTY IN EXCESS OF A TOTAL,
COLLECTIVE, INCLUSIVE COMPENSATION AMOUNT (INCLUDING VALUATION,
COSTS, FEES, OR OTHER BENEFITS) OF $5.5 MILLION ($5,500,000), AS MAY BE
ADJUSTED TO REFLECT ANY DAMAGES AWARDED TO ANY THIRD PARTY TENANT
AND AGAINST SELLERS ARISING FROM OR RELATING TO THE TERMINATION O F
ANY LEASES BY THE THIRD PARTY TENANT(S) IN THE EVENT THE CITY IS UNABLE
TO REACH A SEPARATE AGREEMENT WITH ANY PARTY CURRENTLY RELEASING
ANY PORTION OF THE PROPERTY. THIS MEMORANDUM OF AGREEMENT FOR
BUYER’S PURCHASE OF THE PROPERTY FROM SELLER (4390 SOUTH WINDERMERE,
LLC) FOR $5.5M IS THE MAXIMUM ACQUISITION PRICE OF THE PROPERTY
PURSUANT TO THE MOU AND SELLER (4390 SOUTH WINDERMERE, LLC), RICHARD
O’BRIEN COMPANIES, AND SOB MANAGEMENT’S RIGHTS TO AND ARISING FROM
THE PROPERTY.
J. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, EACH PARTY SHALL
PAY ITS OWN COSTS AND EXPENSES RESULTING FROM BUYER’S ACQUISITION OF
THE PROPERTY, INCLUDING ITS OWN ATTORNEYS’ FEES, REALTOR/BROKER
EXPENSES (IF ANY), AND OTHER EXPENSES RELATED TO THIS NEGOTIATION AND
TRANSACTION.
K. Representations and Warranties of Buyer. Buyer hereby makes the following
representations and warranties, each of which is deemed to be material and each of which is stated
by Buyer as being true and correct on the Effective Date, and each of which sha ll be true on the
Closing Date and survive the Closing:
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(i) Buyer has obtained all consents required for Buyer to entered into this
Contract. Buyer has full legal power and authority to enter into and perform this Contract in
accordance with its terms, and this Contract constitutes the valid and binding obligation of Buyer,
enforceable in accordance with its terms, except as such enforcement may be affected by
bankruptcy, insolvency and other laws affecting the rights of creditors generally. The execution,
delivery and performance of this Contract and all documents in connection therewith are not in
contravention of or in conflict with any agreement or undertaking to which Buyer is a party or by
which Buyer may be bound or affected;
(ii) The execution and delivery of this Contract and the payment and
performance by Buyer of its payments and obligations hereunder require no further action or
approval in order to constitute this Contract as a binding and enforceable obligation of Buyer and
all such actions have been duly taken by Buyer;
(iii) Buyer is not, nor will be, required to give any notice or obtain any additional
consents from any person, entity or authority in connection with the execution and delivery of this
Contract or the consummation of the purchase of the Property; and
(iv) In determining to proceed with the purchase of the Property in accordance
with the terms and conditions of this Contract, Buyer has solely relied upon its due diligence
investigation of the Property and Buyer hereby affirms that Seller, its agents, employees and/or
attorneys have not made, nor has Buyer relied upon, any representation, warranty, or promise with
respect to the Property or any other subject matter of this Contract except as expressly set forth in
this Contract.
L. Representations and Warranties of Seller. Seller hereby makes the following
representations, warranties and covenants, each of which is deemed to be material and each of
which is stated by Seller as being true and correct on the Effective Date, and each of which shall
be true on the Closing Date and survive the Closing:
(i) Seller is a Colorado limited liability company in good standing.
(ii) Seller has full legal power and authority to enter into and perform this
Contract in accordance with its terms, and this Contract constitutes the valid and binding obligation
of Seller, enforceable in accordance with its terms, except as such enforcement m ay be affected
by bankruptcy, insolvency and other laws affecting the rights of creditors generally. The
execution, delivery and performance of this Contract and all documents in connection therewith
are not in contravention of or in conflict with any deed of trust, agreement or undertaking to which
Seller is a party or by which Seller or any of its property, including the Property, may be bound or
affected. The execution and delivery of this Contract and the performance by Seller of its
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obligations hereunder require no further action or approval in order to constitute this Contract as a
binding and enforceable obligation of Seller, and all such actions have been duly taken by Seller;
(iii) Seller is not a “foreign person” as defined in Section 1445 of the Internal
Revenue Code;
(iv) Seller has no actual knowledge of any Hazardous Materials (as defined
below) located on the Property that requires remediation or clean-up under applicable
Environmental Laws (as defined below); and
(v) Seller and its tenants, Richard O’Brien Companies, SOB Management LLC,
Brundage-Bone Concrete Pumping, Inc. and Namaste Roofing, are in sole possession of the
Property and no other party has any right in or to possession of the Property.
M. Special Warranty Deed. The parties agree that Seller’s obligation to defend the
Property under the Special Warranty Deed shall be subject to those permitted exceptions set forth
in Schedule B, Part II of the Title Commitment.
N. Disclaimer of Representations and Warranties of Seller and
Acknowledgement by Buyer. AS A CONDITION PRECEDENT TO SELLER’S
UNDERTAKINGS AND AGREEMENTS HEREUNDER, SELLER EXPRESSLY DISCLAIMS
AND BUYER ACKNOWLEDGES AND ACCEPTS THAT SELLER HAS DISCLAIMED
MAKING ANY REPRESENTATIONS, WARRANTIES, OR ASSURANCES WITH RESPECT
TO THE PROPERTY OTHER THAN AS SPECIFICALLY SET OUT HEREIN,
SPECIFICALLY INCLUDING, BUT NOT LIMITED TO, NO REPRESENTATIONS OR
WARRANTIES AS TO MATTERS OF TITLE (EXCEPT THE SPECIAL WARRANTY OF
TITLE SUBJECT TO PERMITTED EXCEPTIONS IN THE SPECIAL WARRANTY DEED TO
BE DELIVERED AT CLOSING), ZONING, TAX CONSEQUENCES, PHYSICAL
CONDITION, ENVIRONMENTAL CONDITIONS, GEOLOGICAL CONDITIONS, SOIL OR
SUBSOIL CONDITION, OPERATING HISTORY OR PROJECTIONS, VALUATIONS,
GOVERNMENTAL APPROVALS OR GOVERNMENTAL REGULATIONS. EXCEPT AS
SPECIFICALLY SET FORTH IN THIS CONTRACT, SELLER SPECIFICALLY DISCLAIMS
ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR
PRESENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTY OR REPRESENTATION AS TO THE CONDITION, QUALITY, SAFETY,
FREEDOM FROM DEFECTS (WHETHER OR NOT DETECTABLE BY INSPECTION),
MERCHANTABILITY, FITNESS FOR BUYER’S INTENDED USE OR ANY OTHER
PARTICULAR PURPOSES, FREEDOM FROM CONTAMINATION BY HAZARDOUS
MATERIALS, OR COMPLIANCE WITH ZONING OR OTHER LEGAL REQUIREMENTS,
OF ALL OR ANY PART OF THE PROPERTY, OR AS TO THE AVAILABILITY OR
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EXISTENCE OF ANY UTILITY OR OTHER GOVERNMENTAL OR PRIVATE SERVICES,
OR AS TO THE AMOUNT OF TAXES ASSESSED TO THE PROPERTY. BUYER
ACKNOWLEDGES THAT ALTHOUGH BUYER HAS HAD OR WILL HAVE AN
OPPORTUNITY TO EXAMINE CERTAIN LEGAL DOCUMENTS, RECORDS, FILES AND
ANY AND ALL OTHER INFORMATION RELATING TO THE PROPERTY, BUYER
ACKNOWLEDGES AND REPRESENTS THAT IT IS PURCHASING THE PROPERTY
BASED SOLELY ON ITS OWN INDEPENDENT INVESTIGATIONS AND FINDINGS AND
NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY SELLER, OR ANY OF
SELLER’S EMPLOYEES, REPRESENTATIVES OR AGENTS, WHETHER PROVIDED
PRIOR TO ENTERING INTO THIS CONTRACT, DURING THE TIME BETWEEN THE
EFFECTIVE DATE HEREOF AND THE CLOSING, OR AFTER THE CLOSING, AND
BUYER ACKNOWLEDGES THAT SELLER HAS EXPRESSLY DISCLAIMED MAKING
ANY ASSURANCES, REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, AS
TO ANY SUCH INFORMATION, EXCEPT AS SPECIFICALLY SET OUT HEREIN. BUYER
ACKNOWLEDGES AND AGREES BUYER IS RELYING SOLELY ON ITS
INVESTIGATION IN MAKING ITS DECISION TO ACQUIRE THE PROPERTY. BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT EXCEPT AS OTHERWISE
SPECIFICALLY STATED IN THIS CONTRACT, SELLER IS NOT MAKING, AND HEREBY
SPECIFICALLY DISCLAIMS MAKING ANY WARRANTY, GUARANTY OR
REPRESENTATION, OF ANY KIND OR CHARACTER, WHETHER EXPRESS, IMPLIED,
STATUTORY OR ARISING BY OPERATION OF LAW, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, OF, AS TO, OR CONCERNING THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, (I) THE PHYSICAL AND ENVIRONMENTAL NATURE AND
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR
ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY ELECT TO CONDUCT
THEREON, AND THE EXISTENCE OF ANY ENVIRONMENTAL HAZARDS OR
CONDITIONS THEREON (INCLUDING THE PRESENCE OF ASBESTOS OR OTHER
HAZARDOUS MATERIALS) OR THE COMPLIANCE OF THE PROPERTY WITH ANY
AND ALL APPLICABLE ENVIRONMENTAL LAWS (AS HEREINAFTER DEFINED),
RULES OR REGULATIONS; (II) EXCEPT FOR ANY WARRANTIES CONTAINED IN THE
DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING, THE NATURE AND
EXTENT OF ANY RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE,
LICENSE, RESERVATION, CONDITION OR OTHER MATTER AFFECTING TITLE;
(III) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY LAWS,
STATUTES, ORDINANCES, RULES, REQUIREMENTS OR REGULATIONS OF ANY
GOVERNMENT OR OTHER BODY; (IV) THE ECONOMIC VIABILITY OR
MARKETABILITY OF THE PROPERTY; (V) TAX MATTERS PERTAINING TO THE
TRANSACTION CONTEMPLATED HEREBY; (VI) THE ACCURACY OR
COMPLETENESS OF ANY REPORTS OR OTHER INFORMATION FURNISHED BY
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Page 7—Addendum A
SELLER TO BUYER WITH RESPECT TO THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, ENGINEERING, ENVIRONMENTAL OR OTHER REPORTS, STUDIES OR
INVESTIGATIONS, IF ANY, EXCEPT THAT SELLER WARRANTS THAT IT DOES NOT
KNOW THAT A STATEMENT MADE IN ANY DOCUMENT PREPARED OR SUBMITTED
BY SELLER, INCLUDING SELLER’S PROPERTY DISCLOSURE, CONTAINS FALSE OR
OTHERWISE INACCURATE INFORMATION; (VII) ZONING; (VIII) VALUATION;
(IX) HABITABILITY; (X) MERCHANTABILITY; OR (XI) SUITABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
THE CLOSING SHALL CONSTITUTE A REAFFIRMATION OF EACH OF THE
PROVISIONS OF SECTION 29(N) AND EACH OF THEM SHALL BE CONTINUING IN
NATURE AND SHALL SURVIVE THE CLOSING.
O. Property Sold “As Is.” BUYER HEREBY EXPRESSLY ACKNOWLEDGES
AND AGREES THAT BUYER IS PURCHASING, AND AT CLOSING WILL ACCEPT, THE
PROPERTY ON AN “AS IS,” “WHERE IS” AND “WITH ALL FAULTS” BASIS, WITHOUT
REPRESENTATIONS (OTHER THAN AS SET FORTH HEREIN), WARRANTIES AND
COVENANTS, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE; PROVIDED,
HOWEVER, NOTHING CONTAINED IN THIS SECTION SHALL LIMIT THE
WARRANTIES OF TITLE SET FORTH IN THE DEED TO BE DELIVERED FROM SELLER
TO BUYER AT THE CLOSING. THE EXPRESS INTENTION OF BUYER AND SELLER IS
THAT BUYER SHALL PURCHASE THE PROPERTY FROM SELLER WITHOUT ANY
REPRESENTATIONS (OTHER THAN THE LIMITED REPRESENTATIONS SET FORTH
HEREIN), WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, FROM OR OF
SELLER. BUYER HEREBY WAIVES AND RELINQUISHES ALL RIGHTS AND
PRIVILEGES ARISING OUT OF, OR WITH RESPECT OR IN RELATION TO, ANY
REPRESENTATIONS (OTHER THAN THE LIMITED REPRESENTATIONS SET FORTH
HEREIN), WARRANTIES, AND COVENANTS, WHETHER EXPRESS OR IMPLIED,
WHICH MAY HAVE BEEN MADE OR GIVEN, OR WHICH MAY BE DEEMED TO HAVE
BEEN MADE OR GIVEN, BY SELLER.
P. Environmental Indemnity and Release. Buyer expressly assumes the risk that
any Hazardous Material is or hereafter may be located on the Property except for any other
Hazardous Material placed on or in the property by Seller and but for the gas pump and tank
located on the Property, which the parties acknowledge the pump and tank will remain on the
Property after Closing. WITH RESPECT TO THOSE MATTERS ASSUMED BY BUYER
HEREUNDER, BUYER AGREES FROM AND AFTER THE CLOSING, TO INDEMNIFY,
DEFEND AND HOLD HARMLESS, AND HEREBY FOREVER RELEASES AND
DISCHARGES SELLER AND ANY SUBSIDIARY OR AFFILIATE OF SELLER, THEIR
DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS, FROM AND
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Page 8—Addendum A
AGAINST ANY AND ALL JUDGMENTS, CLAIMS, EXPENSES (INCLUDING
ATTORNEYS’ AND OTHER CONSULTANTS’ REASONABLE FEES AND COSTS),
CAUSES OF ACTION, DAMAGES, LIABILITIES, INCLUDING WITHOUT LIMITATION,
(I) ALL FORESEEABLE AND ALL UNFORESEEABLE CONSEQUENTIAL DAMAGES,
DIRECTLY OR INDIRECTLY ARISING OUT OF THE USE, GENERATION, STORAGE,
DISPOSAL, RELEASE OR THREATENED RELEASE OF HAZARDOUS MATERIALS ON
THE PROPERTY AND (II) THE COST OF ANY REASONABLY NECESSARY
INVESTIGATION, REPAIR, CLEANUP, REMEDIATION OR DETOXIFICATION OF THE
PROPERTY AND OTHER AFFECTED PROPERTY AND THE PREPARATION OF ANY
CORRECTIVE ACTION, CLOSURE OR OTHER REQUIRED PLANS OR REPORTS TO THE
FULL EXTENT THAT SUCH ACTIONS ARE ALLEGED TO BE ATTRIBUTABLE,
DIRECTLY OR INDIRECTLY, TO THE PRESENCE OR USE, GENERATION, STORAGE,
RELEASE, THREATENED RELEASE, OR DISPOSAL OF HAZARDOUS MATERIALS BY
ANY PERSON INCLUDING SELLER AND RELATE TO OR INVOLVE THE PROPERTY.
Q. Definition of “Hazardous Materials.” The term “Hazardous Materials” means
any chemicals, pollutants, contaminants, medical waste or specimens, toxic substances, petroleum
or petroleum products, whether or not discarded, that are regulated by Environmental Laws or the
release or disposal of which creates or could create responsibility under Environmental Laws,
including hazardous wastes under the Resource, Conservation and Recovery Act, 42 U.S.C. §6903
et seq., hazardous substances under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. §9601 et seq.; pollutants under the Clean Water Act, 33
U.S.C. § 1251 et seq., and any rules or regulations promulgated thereunder.
R. Definition of “Environmental Laws.” The term “Environmental Laws” means
any and all legal requirements relating to pollution or protection of human health or the
environment (including the air, surface water, ground water, wetlands, land surface or subsurface
strata), including legal requirements relating to air and water emissions or discharges, releases or
threatened releases of Hazardous Materials, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, recycling, reporting or handling of
Hazardous Material.
S. No Recordation. Except as set forth herein, without the prior written consent of
Seller, there shall be no recordation of either this Contract or any memorandum hereof, and any
such recordation of this Contract or any memorandum hereof by Buyer without the prior written
consent of Seller shall constitute a default hereunder by Buyer, whereupon, at Seller’s sole option,
this Contract shall automatically terminate and be of no further force and effect, where upon the
parties shall have no further duties or obligations one to the other, except for indemnities and other
provisions contained herein that specifically survive Closing. Should any dispute arise regarding
this Contract, there shall be no recording of any document, motion, order, notice, or any other
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Page 9—Addendum A
instrument whatsoever relating to such dispute which would affect or cloud the title to the Property.
If any such item is recorded against the Property in violation of this section, Buyer and/or the party
attempting to record a document against the Property (collectively, the “Recording Party”), hereby
grant(s) Seller a limited power of attorney, coupled with an interest, for the sole purposes of
removing any recordation against the title to the Property and removing any cloud to the title
created by the Recording Party. This limited power of attorney specifically grants Seller the ability
and authority to sign any necessary documents on behalf of the Recording Party in order to remove
the cloud to title. The provisions of this section shall specifically survive the term ination or
effective termination of this Contract by either party.
T. Miscellaneous.
(i) Subject to the provisions hereof, the terms and provisions hereof shall be
binding upon and inure to the benefit of the successors and assigns of the parties hereto.
(ii) When necessary herein, all terms used in the singular shall apply to the
plural, and vice versa; and all terms used in the masculine shall apply to the neuter and feminine
genders.
(iii) This Contract, which consists of Colorado Real Estate Commission Form
CBS3-6-21, Contract to Buy and Seller Real Estate (Commercial), this Addendum A and all
schedules and exhibits attached hereto, is the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements between the parties hereto
with respect thereto. No claim of waiver, modification, consent or acquiescence with respect to
any of the provisions of this Contract shall be made against either party, except on the basis of a
written instrument executed by or on behalf of such party.
(iv) Nothing in this Contract shall be construed as giving any person, firm,
corporation or other entity, other than the parties hereto, their successors and permitted assigns,
any right, remedy or claim under or in respect of this Contract or any provision hereof.
(v) This Contract is to be governed by and construed in accordance with the
laws of the State of Colorado.
(vi) Waivers, amendments or modifications of any term or condition of this
Contract must be in writing signed by the party against whom such waiver is sought to be enforced.
No waiver by any party of any breach hereunder shall be deemed a waiver of any other or
subsequent breach.
(vii) This Contract shall be construed without regard to the party or parties
responsible for the preparation of the same, and shall be deemed to be prepared jointly by the
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Page 10—Addendum A
parties hereto or thereto. Any ambiguity or uncertainty existing herein or therein shall not be
interpreted against either party, but shall be interpreted according to the application of all other
rules of contract interpretation. The inclusion in this Contract of provisions not included in, or
deletion of provisions previously included in, prior drafts of this Contract shall not be considered
in interpreting the provisions of the final executed version of this Contract.
(viii) If any provision of this Contract or the application thereof to any person or
circumstance shall be invalid or unenforceable to any extent, the remainder of this Contract and
the application of such provisions to other persons or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by law.
(ix) The respective indemnities, representations, warranties and agreements of
Buyer and Seller contained in this Contract or made by or on behalf of them, respectively, pursuant
to this Contract, shall survive Closing and shall remain in full force and effect for the maximum
extent permitted by applicable law.
(x) This Contract may be executed in any number of counterparts, each of
which so executed shall be deemed an original; such counterparts shall together constitute but one
agreement. This Contract may also be executed and delivered by way of facsimile signatures and
confirmed facsimile transmission, respectively.
(xi) The headings of the several paragraphs of this Contract are inserted solely
for convenience of reference and are not a part of and are not intended to govern, limit or aid in
the construction of any term or provision hereof.
(xii) Seller and Buyer shall, prior to Closing, execute any and all documents and
perform any and all acts reasonably necessary, incidental or appropriate, to effectuate the purchase
and sale and the transactions contemplated in this Contract.
(xiii) Time shall be of the essence with respect to the obligations of the parties
hereunder.
(signatures begin next page)
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age 11—Addendum A
IN WITNESS WHEREOF, the Parties hereto have executed this Addendum effective as
of the MEC.
SELLER: BUYER:
4390 South Windermere, LLC, City of Englewood,
a Colorado limited liability company a home rule municipal corporation of
the State of Colorado
By: By:
Name: Name:
Title: Title:
TENANT: TENANT:
RICHARD O’BRIEN COMPANIES, INC., SOB MANAGEMENT, LLC,
a Colorado corporation a Colorado limited liability company
By: By:
Name: Name:
Title: Title:
Steve O'Brien
President
Steve O'Brien
Manager
Manager
Steve O'Brien
DocuSign Envelope ID: CE354492-67F1-4076-BD27-03D4580FDBFC
Mayor - City of Englewood
Othoniel Sierra