Documents

Purchase and Sale Agreement

PURCHASE AND SALE AGREEMENT
(Vacant Land)

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made as of the ____ day of ___________________, 2013, by and between AARON HARBER, having an address at 2500 North 119th Street, Lafayette, Colorado 80026-9216 (“Seller”), and TOWN OF ERIE, a Colorado municipal corporation, having an address at 645 Holbrook Street, P.O. Box 750, Erie, Colorado, 80516 (“Purchaser”).

RECITALS

A. Seller is the fee owner of that certain parcel of real property located in the County of Boulder, State of Colorado, and which is more particularly described on Exhibit A attached hereto and made a part hereof.

B. As used in this Agreement, the term “Property” includes all of the following: (1) the real property described on Exhibit A together with all reversions, remainders, easements, rights-of-way, appurtenances, agreements, licenses, tenements and hereditaments appertaining to or otherwise benefiting or used in connection with said real property or the Improvements (as defined below), together with all of Seller’s right, title and interest in and to any strips of land, streets and alleys abutting or adjoining such real property, and together with any and all water and water rights, including Five (5) shares of South Boulder Canon Ditch Company, (whether decreed or undecreed, tributary, nontributary or not nontributary, surface or underground, appropriated or unappropriated, permitted or unpermitted), water wells, water well rights, and water well permits, water and sewer taps and any water service agreements which shall be assigned to Purchaser or sanitary or storm sewer capacity appurtenant or appertaining to or otherwise benefiting or used in connection with the real property, but specifically excluding therefrom any mineral interests, (the “Land”); (2) the existing buildings and other improvements, structures, open parking facilities and fixtures placed, constructed, installed or located on the Land, if any, and all plants, trees, sculptures and other appurtenances located upon, over or under the Land, but specifically excluding therefrom the Valley Pivot System and related irrigation equipment, (collectively, the “Improvements;” the Land and Improvements are sometimes hereinafter collectively referred to as the “Real Property”); (3) all right, title and interest of Seller as landlord, under all leases, tenancies or occupancy arrangements affecting any portion of the Real Property (the “Tenant Leases”), all prepaid rents under the Tenant Leases applicable to the period from and after the Closing (as defined below), and security and other deposits under the Tenant Leases; (4) all right, title and interest of Seller in and to all contracts, agreements or commitments, oral or written, other than the Tenant Leases, relating to the Real Property, if any (the “Contracts”), to the extent that they are assignable; (5) all right, title and interest of Seller in and to all unexpired warranties, guaranties and bonds, including, without limitation, contractors’ and manufacturers’ warranties or guaranties, relating to the Real Property to the extent that they are assignable, if any (the “Warranties”); (6) all right, title and interest of Seller in and to all governmental or quasi-governmental permits, agreements, licenses, certificates and authorizations, including, without limitation, certificates of occupancy, relating to the construction, use or operation of the Real Property to the extent that they are assignable, if any (the “Permits”); (7) all right, title and interest of Seller in and to all surveys, soil and substratus studies, architectural drawings and environmental studies or reports if existing and in Seller’s possession or control that relate to the Real Property (the “Plans”); and (8) any and all other rights, privileges, and appurtenances owned by Seller and in any way related to, or used in connection with the operation of the Real Property to the extent that they are assignable (the “Intangible Property”).

C. Seller now desires to sell and Purchaser now desires to purchase all of Seller’s right, title and interest in and to the Property, upon the terms and covenants and subject to the conditions set forth below.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:

Article I

Purchase and Sale of the Property

Article I.1 Purchase. For the consideration hereinafter set forth, but subject to the terms, provisions, covenants and conditions contained herein, Seller hereby agrees to sell, assign and convey to Purchaser, and Purchaser agrees to purchase from Seller, all of the Property.

Article I.2 Purchase Price. The total purchase price (the “Purchase Price”) for the Property shall be Seventy-two Million Five Hundred Thousand Dollars ($72,500,000.00), adjusted as set forth herein, below. The Purchase Price shall be payable as follows:

(a) Deposit. Within five Business Days (as hereinafter defined) after the Effective Date (as hereinafter defined in Section 13.4), Purchaser will deliver an earnest money deposit in the amount of One Hundred Dollars ($100.00) to Stewart Title Company, 1739 Terry Street, Longmont, CO 80501 (the “Title Company”). The Title Company will hold such One Hundred Dollars ($100.00) as an earnest money deposit hereunder pursuant to the terms and provisions hereof (the “Deposit”). The Title Company will deposit such cash amount in an interest-bearing, insured account and continue hold such money as the Deposit hereunder pursuant to the terms and provisions hereof. The Deposit shall earn interest which shall be credited to the Purchaser and the full amount shall be applied to the Purchase Price at Closing. The Deposit shall be fully refundable to the Purchaser during the Inspection Period and after such shall constitute liquidated damages in the event of Purchaser’s default.

(b) Balance. The balance of the Purchase Price, subject to prorations and adjustments in accordance with Article XI hereof, will be paid in good funds in compliance with laws on the Closing Date (as hereinafter defined in Article VIII), in such manner, place and account as Seller may, by prior notice, instruct.

(c) Adjustment of Purchase Price. The Purchase Price shall be adjusted downward in the event the Land is shown by Survey (as hereinafter defined in Section 2.4) to be less than Two Hundred Eighty (280) acres. If the Land is shown by survey to be less than Two Hundred Eighty (280) acres, the Purchase Price shall be reduced by Two Hundred fifty-eight Thousand Nine Hundred Twenty-eight and 57/100 Dollars ($258,928.57) for each acre, or pro-rata for any portion of acre thereof, that the Land is less than Two Hundred Eighty (280) acres.

Article II

Seller’s Deliveries

It is understood by the parties that Purchaser will be relying on Seller’s Deliveries (as defined herein) in order to conduct Purchaser's inspection and due diligence investigation of the Property. Except as otherwise provided below, Seller will, within Ten (10) days after the Effective Date (as defined below), at Seller’s expense, deliver, or cause to be delivered to Purchaser, the following (collectively, the “Seller’s Deliveries”):

Article II.1 Title Insurance Commitment. A current title insurance commitment issued by the Title Company, including the best available copies of all recorded exceptions to title referred to therein (collectively, the “Title Commitment”), showing marketable title to the Real Property to be vested in Seller and committing to insure such title to the Real Property in Purchaser by the issuance of a 2006 ALTA form of extended coverage policy of owner’s title insurance, with the standard printed exceptions deleted, in the amount of the Purchase Price, subject to the satisfaction of the requirements of the instruments to be delivered at the Closing as contemplated hereby and any affidavits and agreements of Purchaser and Seller which the Title Company requires in connection with deletion of the standard printed exceptions. Purchaser will review the Title Commitment as part of its investigation of the Property during the Inspection Period. Purchaser will have the right to negotiate with Title Company in order to cause Title Company to modify the Title Commitment to reflect only those exceptions to title that are acceptable to Purchaser. Seller hereby agrees to cooperate with any of Purchaser’s negotiations with the Title Company. If Purchaser does not terminate this Agreement pursuant to Section 3.2 hereof, then the exceptions to title disclosed in the Title Commitment and approved by Purchaser in writing, excluding (a) any delinquent taxes or assessments, (b) any monetary liens or encumbrances which are not a result of the action of Purchaser, its representatives, agents or contractors, and (c) any standard printed exceptions, will be the “Permitted Exceptions” hereunder.

Article II.2 Environmental Studies. Without in any way limiting any other duties of Seller hereunder to provide information to Purchaser, copies of all environmental studies, reports and information in Seller’s possession or control, including, without limitation, correspondence from any governmental or quasi-governmental authorities having jurisdiction over the Property (a “Governmental Authority”), concerning the environmental condition of the Property (all of the foregoing being hereinafter referred to as “Seller’s Environmental Information”). In addition, without in any way limiting the preceding sentence, Seller shall provide Purchaser with a current Phase I Environmental Site Assessment Report for the Property and, in the event an environmental hazard or a potential contamination of any sort, in the sole discretion of Purchaser, has been identified on the Property, a current Phase II Environmental Site Assessment Report for the Property, in each case issued by an environmental firm reasonably approved by Purchaser (collectively, the “Environmental Reports”) within Thirty (30) days of the Effective Date. Seller shall pay all costs associated with the Environmental Reports.

Article II.3 Other Information. True, accurate and complete copies of all documents in any way related to the prior development, usage, operation or marketability of the Property which are in the possession or control of Seller, including, without limitation, information related to utilities to the Property and adverse conditions. Such documents shall include, without limitation, surveys, all environmental, soils and engineering tests, appraisals, reports and other studies ordered or performed at the direction of Seller.

2.4 Survey. Seller shall provide to Purchaser a current pinned survey of Property. The survey will be an ALTA/ASCM Land Title Survey complying with the minimum requirements of such a survey and shall also constitute a boundary survey and an improvement survey in accordance with the Colorado Revised Statutes (“Survey”). The Survey shall at a minimum show the dimensions of the property, any and all improvements, fence locations, easements, rights-of-way and adjacent roadways, on and/or to the Property and shall also provide additional information and items typically shown for ALTA/ASCM surveys for commercial real estate in locations in the Denver, Colorado metropolitan area. The Survey shall certify the accuracy of the legal description and the size of the Property and the legal description set forth in the survey shall be identical to that contained in the Title commitment. Seller shall provide to Purchaser the Survey within Thirty (30) days of the Effective Date. Seller shall pay all costs associated with the Survey.

2.5 Disclosure. A written disclosure from Seller to Purchaser of all easements, liens or other title matters not shown by public records of which Seller has current actual knowledge.

Article III

Investigation of the Property

Article III.1 Inspection of Property. Purchaser will have until 5:00 p.m., Mountain Time, on the date that is Ninety (90) days after the Effective Date (as it may be extended, as set forth below, the “Inspection Period”), to investigate and evaluate the Property, the zoning and other governmental limitations applicable to the Property, Seller’s Deliveries and all other documents and/or information provided to Purchaser pursuant to Article II, and any other aspects or characteristics of the Property which may affect its acquisition, ownership, development, usage, operation, marketability or economic viability. Such right of investigation will include, without limitation, the right to enter the Property and have made, at Purchaser’s expense, any studies, inspections or plans of the Property as Purchaser may deem necessary or appropriate, including environmental studies and/or flood plain studies. Seller agrees to cooperate reasonably with any such investigations, inspections or studies made by or at Purchaser’s direction so long as such cooperation is at no expense to Seller. Seller agrees that, during the Inspection Period, Purchaser will have access at all reasonable times upon reasonable prior notice to Seller’s books and records concerning the Property, and will be permitted to make copies of such books and records at Purchaser’s expense. Purchaser will indemnify, defend and hold Seller harmless from any expenses, damages and liabilities, including reasonable attorneys’ fees that Seller may suffer or incur arising out of any claims for property damage, personal injury or claims from materialmen, or laborers which arise from Purchaser’s investigations under this Section 3.1. The provisions of this Section shall survive the Closing or termination of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Inspection Period shall be extended for a period of thirty (30) days in the event Seller fails to deliver to Purchaser the Seller’s Deliveries as and when required by Article II, including, without limitation the Environmental Reports. Such thirty (30) day extension period shall be repeated, as necessary, in the event the Seller fails to deliver to Purchaser the Seller’s Deliveries prior to one week before the termination of said extension period.

Article III.2 Termination. If on or before the expiration of the Inspection Period, Purchaser gives Seller written notice of Purchaser’s decision to terminate the Agreement, in Purchaser’s sole discretion, for any reason whatsoever, then this Agreement shall terminate, the Deposit shall be returned to Purchaser and both parties shall be relieved from any further liability hereunder, except for any liabilities and obligations which by their terms survive any termination of this Agreement. If Purchaser does not terminate this Agreement as described in the preceding sentence, then this Agreement shall remain in full force and effect in accordance with its terms.

Article IV

Condition Precedent to Closing

4.1 Subdivision. In the event the Property is already annexed to the Town of Erie, Colorado in conjunction with the adjacent 40 acre parcel containing Seller’s home at the Effective Date, then, in that event, within Thirty (30) days of the Effective Date, Seller shall subdivide the Property in accordance with the Municipal Code of the Town of Erie, Colorado, the Unified Development Code of the Town of Erie, Colorado, and all applicable laws, ordinances and requirements so as to create a legal, merchantable, subdivided parcel consisting of the Property. Notwithstanding anything contained herein to the contrary, Purchaser’s obligation to proceed to Closing hereunder is expressly conditioned upon the subdivision of the Property as required herein. In the event the Property is not subdivided as required herein, this Agreement shall, at the sole discretion and decision of Purchaser, terminate, the Deposit shall be returned to Purchaser and both parties shall be relieved from any further liability hereunder, except for any liabilities and obligations which by their terms survive any termination of this Agreement.

4.2 Compliance with Laws. In the event the Property is not annexed to the Town of Erie, Colorado, but remains in Boulder County at the Effective Date, the Seller shall comply with all Boulder County and State of Colorado laws regarding division of property so as to ensure that the Property is a legal parcel capable of being transferred to Purchaser as provided for herein. Purchaser’s obligation to proceed to Closing hereunder is expressly conditioned upon the Property complying with all Boulder County and State of Colorado laws regarding division of property, and the Property being a legal parcel capable of being transferred to Purchaser. In the event the Property is not a legal parcel in compliance with all Boulder County and State of Colorado laws as required herein, this Agreement shall, at the sole discretion and decision of Purchaser, terminate, the Deposit shall be returned to Purchaser and both parties shall be relieved from any further liability hereunder, except for any liabilities and obligations which by their terms survive any termination of this Agreement.

4.3 Termination of Purchaser’s Right to Purchase. In the event Purchaser has not tendered a signed Agreement to the Seller on or prior to September 1, 2013, then, in that event, this Agreement shall be null and void and Purchaser shall no longer have the right to purchase the Property pursuant to the Option to Purchase the Property set forth and granted to the Purchaser in the Golden Run Pre-Annexation Agreement entered into by and between the Purchaser and Aaron Harber and Golden Run Estates, LLC, dated April 9, 2013.

Article V

Title

At Closing hereunder, Seller will convey to Purchaser by General Warranty Deed good, marketable and insurable fee simple title to the Property, free and clear of all liens and encumbrances and subject only to the Permitted Exceptions. Seller will not, after the date hereof, sell, convey, option or contract to do any of the foregoing or otherwise convey, abandon, relinquish, cloud or encumber title to the Property or any part thereof or contract to do any of the foregoing in a manner which would survive Closing except as may be expressly provided for herein. At Closing, Seller will cause the Title Company to issue to Purchaser, or unconditionally commit to issue to Purchaser after Closing, a 2006 ALTA form of extended coverage owner’s policy of title insurance insuring marketable, insurable title to the Property in Purchaser in the amount of the Purchase Price for such Property, subject only to the Permitted Exceptions (the “Title Policy”). At Closing, Seller will pay for the title insurance policy insuring the Purchaser's purchase. If any update of the Title Commitment issued after expiration of the Inspection Period shall show any exceptions which are not Permitted Exceptions or shall contain any additional requirements, which exceptions or additional requirements are caused by Seller (or anyone acting by, through or under Seller or its affiliates) without Purchaser’s prior written consent (which may be withheld in Purchaser’s sole discretion), Seller will, at its sole cost and expense, within the earlier of Thirty (30) days or the Closing Date, cure such exceptions and satisfy such requirements. Seller’s obligation to cure such exceptions will, if such method is acceptable to Purchaser as to any specific exception, include the obligation to obtain title insurance protection for Purchaser against such exception and to pay additional premiums or costs which the Title Company charges for such protection. If each of such exceptions has not been cured by Seller or waived by Purchaser within the earlier of Thirty (30) days or the Closing Date, and Purchaser does not elect to waive such exception or requirements, Purchaser will be entitled to all rights and remedies therefor, including, without limitation, specific performance with abatement and/or damages on account of the existence of any such exceptions which are not Permitted Exceptions or for any requirements which are not satisfied by Seller, or termination of this Agreement and the return of the Deposit. If a third party (not related to Seller or anyone acting by, through or under Seller or its affiliates) causes such new title exception or additional requirements, Seller will, at its sole cost and expense, within the earlier of Thirty (30) days or the Closing Date, cure such exceptions and satisfy such requirements; provided, however, that if Seller is unable cure such exceptions and satisfy such requirements using its best efforts, Purchaser’s only right will be to either waive its objection thereto or to terminate this Agreement. In the event of any such termination, the Deposit will be returned to Purchaser and the parties will thereupon be relieved of all further liabilities and obligations hereunder, except for any liabilities and obligations which by their terms survive any termination of this Agreement.

Article VI

Representations and Warranties

Article VI.1 Seller’s Representations and Warranties. To Seller's current actual

knowledge, without inquiry and without duty to inquire, Seller represents, warrants and covenants to Purchaser that the following are true and correct:

(a)No Possessory Rights; No Third Party Interests. Except for any parties in possession pursuant to, and any rights of possession granted under, the Permitted Exceptions, there are no parties in possession of any part of the Property, and there are no other rights of possession which have been granted to any third party or parties. Seller has not granted to any party any option, contract or other agreement with respect to a purchase or sale of the Property or any portion thereof or any interest therein.

(b)No Liens. There are no mechanics’ or materialmen’s liens of record against the Property, nor are there any unsatisfied charges, debts, liabilities, claims or obligations arising from the construction, ownership, maintenance or operation of or otherwise relating to the Property, which could give rise to any mechanics’ or materialmen’s or constitutional, statutory or common law lien against the Property, or any part thereof.

(c)Contracts and Tenant Leases. Seller is not in default of any of its obligations under the Permitted Exceptions, the Contracts or the Tenant Leases. There are no Tenant Leases other than those set forth on the list of Tenant Leases delivered by Seller to Purchaser hereunder. Seller shall terminate all Tenant Leases prior to Closing and deliver the Property to Purchaser free and clear of all Tenant Leases. There are no Contracts other than those set forth on the list of Contracts delivered by Seller to Purchaser hereunder.

(d)Compliance with Law. Except as otherwise disclosed to Purchaser as part of Seller’s Deliveries, Seller has not received notice of any violation of any applicable statutes, ordinances, codes (including, but not limited to, zoning, building, subdivision, pollution, environmental protection, water disposal, health, fire and safety, and engineering codes), and the rules and regulations of, any Governmental Authority. With respect to the Property, there are no violations of any applicable statutes, ordinances, codes (including, but not limited to, zoning, building, subdivision, pollution, environmental protection, water disposal, health, fire and safety, and engineering codes), and the rules and regulations of, any Governmental Authority.

(e)No Actions. There are no actions, suits, proceedings or claims pending, or to Seller’s knowledge, contemplated or threatened, with respect to or in any manner affecting the Property or the ability of the Seller to consummate the transaction contemplated by this Agreement. There are no pending condemnation or similar proceedings or special assessments affecting the Property, or any part thereof, and to the best of Seller’s knowledge, no such proceeding or assessment is contemplated or threatened by any Governmental Authority. No filing or petition under the United States Bankruptcy Law or any insolvency laws, or any laws for composition of indebtedness or for the reorganization of debtors has been filed with regard to Seller.

(f)Assumption of Obligations. Purchaser, by virtue of the purchase of the Property will not be required to satisfy any obligation of Seller other than those expressly assumed by Purchaser pursuant to this Agreement, any obligations imposed under the Permitted Exceptions or any obligations which may be incurred under any expressly assumed Permits or Contracts.

(g)Hazardous Material. To Seller’s knowledge, except as disclosed in any environmental or engineering reports or studies delivered by Seller to Purchaser as part of the Seller’s Environmental Information: (i) the Property has not at any time been used for the purpose of storing, manufacturing, releasing or dumping Hazardous Materials (as hereinafter defined), and there are no Hazardous Materials located at, on or under the Property, except for normal quantities of Hazardous Materials utilized in connection with the maintenance and operation of the Property in compliance with all Environmental Laws (as hereinafter defined), and (ii) no underground storage tanks, pipelines or clarifiers have been or are located on the Property. As used in this Agreement, “Hazardous Materials” shall mean any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including, without limitation, asbestos, gasoline and any other petroleum products, polychlorinated biphenyls and urea formaldehyde insulation. As used in this Agreement, “Environmental Law” shall mean any and all federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of any Governmental Authority or requirements of law (including common law) relating to or imposing liability or standards of conduct concerning the protection of human health, the environment or natural resources, or the release or threatened release of Hazardous Materials into the environment.

(h)Seller’s Deliveries. The copies of any documents furnished to Purchaser pursuant to this Agreement are true, accurate and complete copies of the documents they purport to be. Seller has no knowledge of any misrepresentations or any material inaccuracy in any of Seller’s Deliveries that have been provided to Purchaser pursuant to this Agreement.

(i)Authority. Seller has the full right and authority to enter into this Agreement and consummate the transaction contemplated by this Agreement. Seller has taken all requisite action in connection with the entering into of this Agreement, the instruments referenced herein, and the consummation of the transaction contemplated hereby. Each of the persons signing this Agreement on behalf of Seller is authorized to do so. Seller will furnish to Purchaser any and all documents to evidence such authority as Purchaser shall reasonably request.

(j)Consents; Binding Obligations. No third party approval or consent is required to enter into this Agreement or to consummate the transaction contemplated hereby. This Agreement and all documents required hereby to be executed by Seller are and shall be valid, legally binding obligations of and enforceable against Seller in accordance with their terms.

(k)No Representations; “As Is” Purchase.

Except as expressly set forth herein or called for herein or any conveyance documents delivered at Closing, SELLER MAKES NO WARRANTIES OR REPRESENTATIONS of any kind or character, express or implied, with respect to the Property, its physical condition, income to be derived therefrom or expenses to be incurred with respect thereto, or with respect to information or documents previously furnished to Purchaser or furnished to Purchaser pursuant to this Agreement, or with respect to Seller’s obligations or any other matter or thing relating to or affecting the same, and there are no oral agreements, warranties or representations collateral to or affecting the Property except as may otherwise be expressly set forth herein. Notwithstanding anything contained herein to the contrary, this Section shall survive the Closing or any termination of this Agreement.

(l)Materiality. Each of the representations and warranties contained in this Article are acknowledged by Seller to be material and to be relied upon by Purchaser in proceeding with this transaction, shall be deemed to have been remade by Seller as of the date of Closing, shall not be deemed merged into any instrument of conveyance delivered at Closing and shall survive the Closing.

Article VI.2 Purchaser’s Representations and Warranties. Purchaser represents, warrants and

covenants to Seller that the following are true and correct:

(a)Authority. Purchaser has the full right and authority to enter into this Agreement and consummate the transaction contemplated by this Agreement. Purchaser has taken all requisite action in connection with the entering into of this Agreement, the instruments referenced herein, and the consummation of the transaction contemplated hereby. Each of the persons signing this Agreement on behalf of Purchaser is authorized to do so. Purchaser will furnish to Seller any and all documents to evidence such authority as Seller shall reasonably request.

(b)Consents; Binding Obligations. No third party approval or consent is required to enter into this Agreement or to consummate the transaction contemplated hereby. This Agreement and all documents required hereby to be executed by Purchaser are and shall be valid, legally binding obligations of and enforceable against Purchaser in accordance with their terms.

Article VII

Seller’s Undertakings Pending Closing

Seller agrees to terminate by written notice to the other party thereto, effective as of Closing, any of the Contracts that Purchaser, pursuant to written notice to Seller, requests Seller to terminate. Seller shall deliver copies of all notices of Contract termination given by Seller hereunder to Purchaser. Seller agrees to terminate by written notice to the other party thereto, effective prior to Closing, all of the Tenant Leases. Seller shall deliver copies of all notices of Tenant Lease termination given by Seller hereunder to Purchaser.

Article VIII

Purchaser’s Obligation to Close

Purchaser shall not be obligated to close hereunder unless each of the following conditions shall exist on the date of Closing (the “Closing Date”): (1) the Title Company shall be prepared to issue (or shall unconditionally commit to issue) the Title Policy as described in Article V; (2) the representations and warranties made by Seller in Article VI shall be true and correct on and as of the Closing Date with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, and Seller will so certify; (3) Seller will have, in all material respects, (a) performed all covenants and obligations, and (b) complied with all conditions required by this Agreement to be performed or complied with by Seller on or before the Closing Date or each such covenant, obligation and condition shall be waived by Purchaser in writing prior to the Closing; and (4) no part of the Property shall be about to be acquired, or shall previously have been acquired, by authority of any governmental agency in the exercise of its power of eminent domain or by private purchase in lieu thereof. If any condition specified in this Article VIII is not satisfied on or before the Closing Date, Purchaser may, at its option, (a) extend the date for Closing to allow Seller a sufficient time (but not to exceed Thirty (30) days) within which to cure or satisfy such condition, and Seller will immediately commence prosecution of such cure or satisfaction and diligently pursue the same to completion, at which time a new Closing Date shall be scheduled within Ten (10) days from Purchaser’s acceptance of such cure or satisfaction, (b) waive such condition either at the time originally established for Closing or at any time thereafter and proceed to Closing, (c) terminate this Agreement by written notice thereof to Seller, in which case the Deposit shall be returned to Purchaser, or (d) if the failure of the condition is due to a breach by Seller hereunder, pursue any of its remedies under Section 12.1 hereof. Notwithstanding the foregoing, if eminent domain proceedings are commenced against any portion of the Property, Seller shall immediately give notice thereof to Purchaser, and Purchaser at its option may either (i) exercise any of the remedies available to Purchaser in this Article VIII, or (ii) proceed to Closing and receive at Closing either a credit against the Purchase Price in the amount of the award, in the case of a completed eminent domain proceeding, or an assignment of all rights in eminent domain, in the case of a pending eminent domain proceeding. Prior to Closing, Seller shall not designate counsel, appear in, or otherwise act with respect to any eminent domain proceedings, or commence any repair or restoration resulting therefrom, without the consent of Purchaser.

Article IX

Seller’s Obligation to Close

Seller shall not be obligated to close hereunder unless Purchaser has delivered to the Title Company the Purchase Price as described in Article I hereof.

Article X

Closing

Article X.1 Time of Closing. The closing (“Closing”) shall take place in the offices of the Title Company at the time specified by Purchaser in written notice to Seller. The Closing Date shall be the Tenth (10th) day after the expiration of the Inspection Period (as it may be extended) or such earlier date as may be mutually acceptable to the parties. If Closing does not occur, the Deposit shall be returned to Purchaser, paid to Seller or otherwise dealt with, all as provided elsewhere in this Agreement.

Article X.2 Deliveries. At Closing the following shall occur:

(a)Seller will deliver to Purchaser a duly executed and acknowledged General Warranty Deed, in form satisfactory to Purchaser, conveying good and marketable fee simple title to the Property (including the water and water rights) to Purchaser, free of all liens and encumbrances and subject only to the Permitted Exceptions.

(b)Purchaser will pay to Seller the Purchase Price as provided in Article I hereof, subject to the adjustments described in Article XI.

(c)Possession of the Property will be delivered to Purchaser and Seller shall deliver to Purchaser all keys to all locks on such Property within Seller’s possession or control, if any.

(d)Seller will execute and deliver to Purchaser and the Title Company an affidavit that evidences that Seller is exempt from the withholding requirements of Section 1445 of the Internal Revenue Code.

(e)Seller will execute and deliver to Purchaser an assignment, in form and substance satisfactory to Purchaser, of all of Seller’s right, title and interest in and to the Contracts, if any are approved by Purchaser, and will deliver to Purchaser, the originals of all of the Contracts, if any, including all amendments and modifications thereto.

(f)Seller will execute and deliver to Purchaser a bill of sale and assignment, in form satisfactory to Purchaser, of all of Seller’s right, title and interest in and to the Warranties, Permits and Intangible Property, to the extent the same are assignable and will deliver to Purchaser the originals of any Warranties or Permits in Seller’s possession or control.

(g)Seller will execute and deliver to Purchaser a bill of sale and assignment, or deed, as may be applicable, in form satisfactory to Purchaser, of all of Seller’s right, title and interest in and to the Five (5) shares of South Boulder Canon Ditch Company and to water and sewer taps, if any.

(h)Public utility services shall be transferred or terminated as of the date of the Closing. The provisions of this Section shall survive Closing.

(i)Seller and Purchaser will each execute and deliver to the Title Company such agreements or statements concerning claims for mechanic’s liens and any other documents as may be required by the Title Company in order to issue the applicable Title Policy.

(j)Immediately after the Closing, the originals of all Plans in Seller’s possession or control and all other materials of whatever kind owned by Seller relating to the design, construction, development, ownership, maintenance and operation of the Property, if any, will be delivered to and become the property of Purchaser.

(k)Seller will, whenever and as often as it shall be reasonably requested to do so by Purchaser, and Purchaser will, whenever and as often as it shall be reasonably requested to do so by Seller, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, any and all conveyances, assignments and all other instruments and documents as may be reasonably necessary in order to complete the transaction herein provided and to carry out the intent and purposes of this Agreement.

(l) In the event the sale contemplated herein does not close by January 1, 2014, for any reason not caused by or related to Seller or Seller’s actions, Purchaser shall reimburse Seller for all its costs of the Phase I Environmental Site Assessment Report for the Property required by Paragraph 2.2, Phase II Environmental Site Assessment Report for the Property required by Paragraph 2.2 (if obtained in accordance with the terms of this Agreement) and the ALTA/ASCM Land Title Survey required by Paragraph 2.4.

Article XI

Prorations and Closing Expenses

Article XI.1 Closing Adjustments. The cash due at Closing pursuant to Article I hereof shall

be subject to adjustment as of the Closing Date in accordance with the following provisions:

(a)Taxes. Real and personal property taxes on the Property shall be prorated to the Closing Date based on the most recent assessed valuations and mill levy available, which proration shall be deemed a final settlement between the parties.

(b)Liens and Encumbrances. The amount of any lien, deed of trust or other monetary encumbrance (including all prepayment penalties) then affecting the Property other than as a result of the actions of the Purchaser, its representatives, agents or contractors shall be paid from the funds to which Seller shall otherwise be entitled. If such funds are insufficient to pay all such encumbrances, Seller shall pay the deficiency.

(c)Closing Costs. Seller shall pay for any transfer taxes, the cost of recording any instruments required to discharge any liens or encumbrances against the Property, the premium for the Title Policy as required by Article V, the cost of the Survey (if not earlier paid), the cost of subdivision of the Property (if necessary and if not earlier paid), Seller’s attorneys’ fees and one-half of the customary closing costs of the Title Company. Purchaser shall pay for recording Seller’s deed, the state documentary fee, Purchaser’s attorneys’ fees and one-half of the customary closing costs of the Title Company.

Article XI.2 Settlement Sheet. At the Closing, Seller and Purchaser shall execute a closing

settlement sheet to reflect the credits, prorations and adjustments contemplated by or specifically provided for in this Agreement.

Article XI.3 Post Closing Adjustments. In general, without limiting any of the foregoing,

Seller shall be entitled to all income, and shall pay all expenses, relating to the operation of the Property for the period prior to the Closing Date and Purchaser shall be entitled to all income, and shall pay all expenses, relating to the operation of the Property for the period commencing on the Closing Date and thereafter. Purchaser and Seller shall undertake, following Closing, to adjust between themselves, as of the Closing Date, any income or expenses of the Property that are not adjusted on the settlement statement. Seller shall pay promptly upon receipt any bills relating to the operation of the Property for periods prior to the Closing. Seller shall also pay promptly upon receipt any so called “rollback taxes” imposed on the Property for periods from and after Closing. The terms, covenants and conditions of this Article XI will survive the Closing or termination of this Agreement without limitation as to time.

Article XII

Remedies

Article XII.1 Breach by Seller. Time is of the essence of Seller’s obligations hereunder. If

Seller fails to comply with any of its obligations hereunder which are required to be performed at or prior to Closing, Purchaser, at Purchaser’s option, shall be entitled to terminate this Agreement, whereupon the Deposit shall be returned to Purchaser and both parties shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement. In the alternative, Purchaser shall be entitled to specific performance, or damages or both.

Article XII.2 Breach by Purchaser. Time is of the essence of Purchaser’s obligations

hereunder. In the event that Purchaser is in default of any provision hereof, which shall include the failure to provide any notice required by this Agreement, Seller, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Purchaser written notice of the same. Purchaser shall have Ten (10) Business Days (as defined below) (or such longer period of time as is reasonably required so long as Purchaser is diligently pursuing said cure) from the receipt of such notice to cure the default or failure to provide notice. If Purchaser timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If Purchaser fails to timely cure such default, Seller, as its sole and exclusive remedy, shall be entitled to terminate this Agreement and have the Deposit paid to Seller as liquidated damages. The parties hereby agree that the amount of the Deposit is a fair and reasonable estimate of the total detriment that Seller would suffer in the event of Purchaser’s default and failure to duly complete the acquisition hereunder.

Article XII.3 Failure to Deliver Possession. If Seller, following Closing, fails to deliver

possession of the Property to Purchaser at the time and date of Closing, Seller shall be subject to eviction and shall be additionally liable to Purchaser for payment of Twenty-five Thousand Dollars ($25,000.00) per day (or any part of a day) from time and date of Closing until possession is delivered to Purchaser.

Article XII.4 Attorneys’ Fees. If any legal proceeding is commenced to enforce or interpret

any provision of this Agreement, the prevailing party in such suit shall be awarded, in addition to all other remedies or damages, its reasonable attorneys’ fees and expenses.

Article XIII

Miscellaneous

Article XIII.1 Brokers. Seller and Purchaser each hereby represent and warrant to the other

that their sole contact with the other or with the Property has been made without the assistance of any broker or other third party. Seller represents and warrants to Purchaser, and Purchaser represents and warrants to Seller, that no brokers or finders have been engaged by it, respectively, in connection with the transactions contemplated by this Agreement, or to its knowledge is in any way connected with any such transactions. Seller and Purchaser agree to save and hold each other free, clear and harmless from any claim, cost or expense, including reasonable attorneys’ fees, for or in connection with any claims for commissions or compensation claimed or asserted by or through each respective party in connection with the transaction contemplated herein.

Article XIII.2 Interpleader. Seller and Purchaser mutually agree that, in the event of any

controversy regarding the Deposit held by the Title Company, unless mutual written instructions for disposition of the Deposit are received by the Title Company, the Title Company shall not take any action, but instead shall wait any proceeding, or else shall interplead all parties and deposit the Deposit into a court of competent jurisdiction, in which case the Title Company may recover all court costs and reasonable attorney’s fees incurred in connection therewith. Seller or Purchaser, whichever loses in any such interpleader action, shall be solely obligated to pay such costs and fees of the Title Company, as well as the attorney’s fees of the prevailing party. By its execution of this Agreement, the Title Company hereby agrees to treat the Deposit in accordance with the foregoing provisions, which supersede any standard form or other escrow instructions of the Title Company.

Article XIII.3 1031 Exchange. Seller and Purchaser acknowledge and agree that the

purchase and sale of the Property may be part of a tax-free exchange under Section 1031 of the Internal Revenue Code for either Purchaser or Seller. Each party hereby agrees to take all reasonable steps on or before the Closing Date to facilitate such exchange if requested by the other party, provided that no party making such accommodation shall be required to acquire any substitute property or incur any cost or expense in connection with such exchange.

Article XIII.4 General. No change or modification of this Agreement shall be valid unless the

same is in writing and signed by the party or parties to be bound. No waiver of any of the provisions of this Agreement shall be valid unless in writing and signed by the party against whom it is sought to be enforced. This Agreement contains the entire agreement between the parties relating to the purchase and sale of the Property. All prior negotiations between the parties are merged in this Agreement, and there are no promises, agreements, conditions, undertakings, warranties or representations, oral or written, express or implied, between the parties other than as expressly herein set forth. Each of the parties hereto undertakes and agrees to execute and deliver such documents, writings and further assurances as may be requisite to carry out the intent and purpose of this Agreement. This Agreement may be executed in one or more counterparts, each of which will constitute an original, and all of which together shall constitute one and the same agreement. Executed copies hereof may be delivered by facsimile or electronic delivery and, upon receipt, shall be deemed originals and binding upon the parties hereto. Without limiting or otherwise affecting the validity of executed copies hereof that have been delivered by facsimile, the parties will use their best efforts to deliver originals as promptly as possible after execution. If any date set forth in this Agreement for the delivery of any document or the happening of any event (such as, for example, the expiration of the Inspection Period or the Closing Date) should, under the terms hereof, fall on a day other than a Business Day, then such date shall be automatically extended to the next succeeding Business Day. For purposes of this Agreement, “Business Day” means each day of the year other than Saturdays, Sundays, holidays and days on which banking institutions are generally authorized or obligated by law or executive order to close in the State of Colorado. For purposes of this Agreement, “Effective Date” means the date that this Agreement has been executed by both Seller and Purchaser, as evidenced by later of the dates on the signature blocks below. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. The paragraph headings that appear in this Agreement are for purposes of convenience of reference only and are not in any sense to be construed as modifying the substance of the paragraphs in which they appear. Purchaser may assign this Agreement, provided that Purchaser provides Seller with prompt notice of the assignment, subject to the prior written approval of the Owner, which may be withheld at Owner’s sole discretion. Any such assignee shall assume all obligations imposed on Purchaser as if the assignee were the original Purchaser under this Agreement. Any assignment of this Agreement by Purchaser shall relieve Purchaser of its obligations and liabilities hereunder. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, personal representatives, successors and permitted assigns.

Article XIII.5 Notices. Any notice required or permitted to be sent pursuant to this Agreement

shall be in writing and shall be deemed received (a) within the same Business Day when personally delivered; (b) within the same Business Day when sent by confirmed facsimile transmission or electronic delivery; (c) three (3) days after having been deposited in a U.S. Postal Service depository and sent by registered or certified mail, return receipt requested, with all required postage prepaid, and addressed; or (d) the next Business Day after deposit with Federal Express or a similar overnight courier service, with delivery charges for morning delivery on the next Business Day prepaid. Either party may change its address for notices by written notice to the other party in accordance with this Section 13.5:

If to Seller:
Aaron Harber
2500 North 119th Street
Lafayette, Colorado 80026-9216
Telephone: (303) 666-6161
Email: aharber@msn.com
with a copy (which shall not constitute notice) to:
Carl Oldham, General Manager
GOLDEN RUN ESTATES, LLC
2338 Walnut Street
Boulder, CO 80302
Email: carl@goldenrun.com
If to Purchaser:
Town of Erie
P.O. Box 8
Erie, Colorado 80516
Attn: Town Administrator
Telephone: (303) 926-2700
Email: ajkrieger@erieco.gov
with a copy (which shall not constitute notice) to:
Mark R. Shapiro
Mark R. Shapiro, P.C.
1650 38th Street, Suite 103
Boulder, Colorado 80301
Telephone: (303) 443-3234
Email: mark@mshapirolaw.com

Any address fixed pursuant to the foregoing may be changed by the addressee by notice given pursuant to this Section 13.5.

Article XIV

Post-Closing Obligations

In the event the Environmental Reports disclose the existence of Hazardous Materials on the Property, Seller hereby agrees to indemnify, defend, protect and hold Purchaser harmless, and each of Purchaser’s successors, from and against any and all claims, liabilities, penalties, fines, judgments, forfeitures, losses (including, without limitation, diminution in the value of the Property and damages for the loss of or restriction on the use of the Property), costs or expenses (including attorneys’ fees, consultants’ fees and experts’ fees) caused in whole or in part, directly or indirectly, by (i) the presence in, on, under or about the Property or any discharge or release by Seller on or from the Property of any Hazardous Materials, (ii) the use, analysis, storage, transportation, disposal, release, threatened release, discharge or generation by Seller or Hazardous Materials in, on, under, about or from the Property, and (iii) Seller’s failure to comply with any Environmental Law. Seller’s obligation under this indemnification shall include, without limitation, whether foreseeable or unforeseeable, any and all costs incurred in connection with any investigation of any such condition, and any and all costs incurred in connection with any investigation of any such conditions, and any and all costs of any repair, cleanup, detoxification or decontamination of the Property (including, without limitation, the soil and ground water on, under or about the Property), and the preparation and implementation of any closure, remedial action, or other plans in connection therewith. This Article XIV shall survive the Closing and delivery of the deed.

Article XV V

ACCEPTANCE DEADLINE

This offer to purchase shall expire at 5:00 p.m. the Tenth (10th) day after the Date of Execution of the Agreement by Purchaser, as set forth below, unless accepted in writing by Seller, as evidenced by his signature, below, and this Agreement, fully executed, returned to Purchaser.

[Signatures on following page]

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first set forth above.

SELLER:
_______________________________________
Aaron Harber
Date of Execution: ______________________
PURCHASER:
TOWN OF ERIE, a Colorado municipal corporation
By:____________________________________
Joseph A. Wilson, Mayor
Date of Execution: ______________________
ATTEST:
By: ______________________________________
Nancy Parker, Town Clerk

4/8/13

RECEIPT AND ACKNOWLEDGEMENT BY
TITLE COMPANY

The undersigned Title Company, named in the foregoing Agreement, hereby acknowledges receipt of the Deposit and a fully executed copy of this Agreement as of the date set forth below. In addition, the Title Company agrees to hold and disburse the Deposit in accordance with the terms of the Agreement. While the Title Company holds in escrow any Deposit in the form of cash, it agrees to invest it in interest-bearing accounts as provided in the Agreement.

RECEIVED, ACKNOWLEDGED and AGREED TO by the Title Company on this the ___________ day of ______________________, 2013.

By:______________________

Print Name:______________________

Title: ______________________

EXHIBIT A

LEGAL DESCRIPTION

The Northern Half of Section 25, Township 1 North, Range 69 West, at the 6th Prime Meridian, Boulder County, Colorado, USA minus the Southwest Quarter of the Northwest Quarter of Section 25, Township 1 North, Range 69 West, at the 6th Prime Meridian, Boulder County, Colorado, USA (totaling 280 acres)