Resolution No. 48-98 (Word Version)

RESOLUTION NO. 48-98

AUTHORIZING THE EXCHANGE OF REAL ESTATE

WITH DYER, LLC, A COLORADO LIMITED LIABILITY COMPANY

WHEREAS, the City of Grand Junction is the owner of certain real property described as the Southwest 1/4 of the Northeast 1/4 of Section 12, Township 2 South, Range 1 East of the Ute Meridian, County of Mesa, State of Colorado, consisting of approximately 40 acres of vacant land; and

WHEREAS, Dyer, LLC, a Colorado limited liability company, is the owner of certain real property situate in the East 1/2 of Section 12, Township 2 South, Range 1 East of the Ute Meridian, and in the West 1/2 of Section 7, Township 2 South, Range 2 East of the Ute Meridian, all in the County of Mesa, State of Colorado; and

WHEREAS, Dyer, LLC, has received preliminary approvals from the County of Mesa to subdivide the Dyer property into single family residential home sites; and

WHEREAS, the northerly portion of the Dyer property is encumbered by the City’s Kannah Creek raw water flowline, which flowline is the main source of domestic water for the City of Grand Junction; and

WHEREAS, the City is desirous of protecting the Kannah Creek Flowline from uses associated with the subdividing of the Dyer property by obtaining fee simple ownership of approximately 23.94 acres of the Dyer property; and

WHEREAS, Dyer is desirous of obtaining fee simple ownership of the aforedescribed City property; and

WHEREAS, the fair market value of the City property is deemed to be the sum of $25,636.00 greater than the fair market value of the 23.94 acre Dyer property.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GRAND JUNCTION, COLORADO:

1. That the City Council hereby authorizes an exchange of the City’s 40 acre property for the 23.94 acre Dyer property in accordance with the terms and conditions of the attached Contract to Exchange Real Estate.

2. That the City Manager, on behalf of the City and as the act of the City, is hereby authorized and directed to execute the attached Contract to Exchange Real Estate.

3. That the officers, employees and agents of the City are hereby authorized and directed to take all actions necessary and appropriate to effectuate the provisions of this Resolution and the attached Contract, including, without limitation, the performance of environmental audits, boundary surveys, and the execution and delivery of such certificates and documents as may be necessary or desirable to accomplish the exchange of real estate with Dyer, LLC.

PASSED and ADOPTED this 19th day of August, 1998.

Attest:

/s/ Janet L. Terry

/s/ Stephanie Nye President of the City Council

City Clerk

CONTRACT TO EXCHANGE REAL ESTATE

(With Valuations)

THIS CONTRACT TO EXCHANGE REAL ESTATE is entered into by and between the City of Grand Junction, a Colorado home rule municipality, hereinafter referred to as “the City”, and Dyer, LLC, a Colorado Limited Liability Company, hereinafter referred to as “Dyer”.

1. Subject to the provisions herein, Dyer agrees to convey to the City, by Special Warranty Deed, that certain real property consisting of approximately 23.94 acres situate in and being a part of the Northeast 1/4 of the Northeast 1/4 of Section 12, Township 2 South, Range 1 East of the Ute Meridian and part of the Northwest 1/4 of the Northwest 1/4 of Section 7, Township 2 South, Range 2 East of the Ute Meridian, all in the County of Mesa, State of Colorado, hereinafter referred to as “the Dyer Property”. The boundaries of the Dyer Property are described on Exhibit “A” attached hereto and incorporated herein by reference. For the purposes of this Contract, the parties agree that the fair market value of the Dyer Property is $14,364.00.

2. Subject to the provisions herein, the City agrees to convey to Dyer, by Special Warranty Deed, that certain real property consisting of approximately 40 acres and described as the Southwest 1/4 of the Northeast 1/4 of Section 12, Township 2 South, Range 1 East of the Ute Meridian, County of Mesa, State of Colorado, hereinafter referred to as “the City Property”. For the purposes of this Contract, the parties agree that the fair market value of the City Property is $40,000.00

3. For the purposes of this Contract, the fair market value of the City Property shall be deemed to be $25,636.00 greater than the fair market value of the Dyer Property. Dyer agrees to pay to the City the sum of $25,636.00 (“the Valuation Difference”) in good funds at closing.

4. Conveyance of the Dyer Property and the City Property each shall include all improvements thereon and appurtenant thereto, and any and all other rights appurtenant to each said property, free and clear of all taxes, special assessments, liens, mortgages and encumbrances; provided, however, that such conveyances shall not included any water or water rights, ditches or ditch rights, which may have been used on or attributed to the respective properties.

5. (a) Because the Dyer Property is part of and attached to a larger tract of land, this Contract and the exchange of real property hereby contemplated is contingent upon the County of Mesa approving the conveyance of the Dyer Property to the City in accordance with the Mesa County Zoning and Development Code. Dyer shall take all actions and pay all expenses necessary and appropriate to obtain such approval(s).

(b) In the event the County of Mesa fails or refuses, for whatever reason, to approve the conveyance of the Dyer Property to the City prior to closing, then this Contract shall terminate and both parties shall be released from all obligations hereunder.

6. (a) On or before June 4, 1999, but no sooner than May 21, 1999, each party shall, at each party’s own expense, furnish to the other party a current commitment for title insurance policy covering the property to be conveyed by such party, together with legible copies of instruments listed in the schedule of exceptions in the title insurance commitment (hereafter “the Title Documents”). Each party agrees to deliver the title insurance policy, in the amount of the fair market set forth above is paragraphs 1 and 2 above, to the other party at closing and pay the premium thereon.

(b) Title to the Dyer Property and the City Property each shall be merchantable. Written notice by either party to the other party of unmerchantability of title or of any other unsatisfactory title condition shown by the Title Documents shall be signed by or on behalf the party providing such written notice and delivered to the other party on or before ten (10) days after such party’s receipt of the Title Documents or endorsements adding new exceptions to the title commitment. If either party fails to mail such notice to the other party within said ten (10) day period, then the party failing to mail such notice shall be deemed to have accepted the condition of title as disclosed by the Title Documents.

(c) If title is not merchantable and written notice of defects is delivered by either party within the ten (10) day period specified in paragraph 6(b), the party receiving such notice of defects shall use reasonable efforts to correct said defects prior to closing. If the party receiving notice of defects is unable to correct said defects on or before the date of closing, the party giving such notice shall have the option of extending the date of closing for a period not to exceed thirty (30) days for the purpose of correcting said defects. If title is not rendered merchantable, this Contract shall be void and of no effect and each party hereto shall be released from all obligations hereunder.

7. The date of closing shall be the date for delivery of deed as provided in paragraph 8. The hour and place of closing shall be designated by mutual agreement between the parties hereto. Changes in time, place and date may be made with the consent of both parties. Each party shall pay its respective closing costs at closing, except as otherwise provided herein. Each party shall sign and complete all customary or required documents at or before closing. Fees for real estate closing and settlement services shall be paid at closing by the parties equally. The parties designate Abstract & Title Company of Mesa County, Inc., as Closing Agent for the purposes of providing Title Insurance and Closing this transaction.

8. Subject to payment or tender of the Valuation Difference by Dyer to the City, and compliance by both parties with the other terms and provisions hereof, Closing and possession shall occur on August 19, 1999, or, by mutual agreement, at an earlier date. At Closing each party shall execute and deliver a Special Warranty Deed to the other party and each party shall deliver possession of such party’s property to the other party, free and clear of: all taxes; all liens for special improvements installed as of the date first above written, whether assessed or not; all liens, mortgages and encumbrances; all fees and charges for utilities, association dues, water rents and water assessments; any covenants, restrictions or reversionary provisions not accepted by the receiving party listed as exceptions in the Title Documents; and all tenancies and/or leasehold estates.

9. (a) Each party shall have the right to access the other party’s property and to make inspections of the other party’s property. Such inspections shall include, but not be limited to, boundary surveys, geological surveys and studies, and environmental surveys and studies. Said permitted access shall be for a period commencing on the April 1, 1999, and ending on May 28, 1999. The party making a physical inspection of the other party’s property is responsible and shall pay for any damage which occurs to the other party’s property as a result of such inspections.

(b) If written notice by either party of any unsatisfactory physical condition is given to the other party during the term of the Inspection Period, and if the parties have not reached a written agreement in settlement thereof on or before the expiration of the Inspection Period, this contract shall then terminate. If either party fails to give notice of any unsatisfactory physical condition during the term of the Inspection Period, then the party failing to give such notice shall be deemed to have accepted the physical condition of the other party’s property, as is, in its present condition.

(c) Each party acknowledges that the other party makes no representation or warranty that its property (including land, surface water, ground water and improvements) is now or will in the future be free of contamination which is unknown to it, including (i) any “hazardous waste”, “medical waste”, “solid waste”, “underground storage tanks”, “petroleum”, “regulated substances”, or “used oil” as defined by the Solid Waste Disposal Act (42 U.S.C. § 6901, et seq.), as amended, and the Resource Conservation and Recovery Act (42 U.S.C. § 6991, et seq.), as amended, or by any regulations promulgated thereunder; (ii) any “hazardous substance” or “pollutant or contaminant” as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601, et seq.), as amended, or by any regulations promulgated thereunder; (iii) any “regulated substance”, as defined by the Underground Storage Tank Act, C.R.S., § 25-18-101, et seq., as amended, or by any regulations promulgated thereunder; (iv) any “hazardous waste” as defined by C.R.S., § 25-15-101, et seq., as amended, or by any regulations promulgated thereunder; (v) any substance the presence of which on, in, under or about the property, is prohibited by any law similar to those set forth above, and; (vi) any other substance which by law, regulation or ordinance requires special handling in its collection, storage, treatment or disposal. Each party accepts the property of the other subject to such disclaimer, it being understood and agreed that each will disclose to the other, within the period allowed for inspection, any such condition of which a party has knowledge as of the date it executed this Agreement.

10. Possession of the respective properties shall be delivered without exceptions, leases or tenancies, on the date of closing. If either party fails to deliver possession on the date herein specified, then said party shall be subject to eviction and shall be liable for a daily rental of $50.00 until possession is delivered.

11. Time is of the essence hereof. If any obligation hereunder is not performed as herein provided, there shall be the following remedies:

(a) If either party is in default, the other party is limited to the following remedies: (1) to treat this contract as terminated, but no damages may be recoverable, or (2) to treat this contract as being in full force and effect together with the right to an action for specific performance; provided, however, that no damages nor fees, costs, or attorney’s fees shall be recoverable;

(b) In the event of any litigation arising out of this contract, the parties agree that each shall pay its own costs and expenses, including attorney’s fees.

12. The parties hereto represent to each other that the exchange of Properties hereby contemplated was brought about without the efforts of any brokers or agents and that neither party has dealt with any brokers or agents in connection with the exchange of the Properties. Each party agrees to defend, indemnify and hold the other harmless from any claim for real estate brokerage commissions or finder’s fees asserted by any other party as a result of dealings claimed to have been conducted with the respective parties.

13. All notices and communications required herein shall be in writing delivered to the parties by United States Certified Mail return receipt requested, and shall be deemed served upon the receiving party as of the date of mailing indicated on the postal receipt, addressed as follows:

To the City: Mr. Tim Woodmansee, City Property Agent

250 North 5th Street

Grand Junction, CO 81501-2668

To Dyer: Mr. James K. Dyer

134 North 6th Street

Grand Junction, CO 81501

The parties may, by notice as provided above, designate a different address to which notice shall be given.

14. This entire Contract and the obligation of the parties to proceed under its terms and conditions is expressly contingent upon:

(a) The consent and approval by the City Council of the City of Grand Junction. In the event such approval is not obtained on or before August 19, 1998, this Contract shall be automatically void and of no effect; and

(b) The consent and approval by the County of Mesa County as set forth in paragraph 5.

15. Dyer and the City each represent and warrant the following:

(a) The parties each have the full power and authority to enter into this Contract and the persons signing this Contract have the full power and authority to sign and to bind such party to this Contract and to exchange, sell, transfer and convey all right, title and interest in and to such party’s property in accordance with this Contract; and

(b) The exchange, sale, transfer and conveyance of the properties in accordance with this Contract will not violate any provision of federal, state or local law; and

(c) As of Closing and the delivery of possession, the respective properties each have or will have legal, insurable access to a public road; and

(d) As of Closing and the delivery of possession, there will be no tenants or occupants in possession of any portion of the respective properties at the time of closing; and

(e) As of Closing and the delivery of possession, there will be no encumbrances or liens against the respective properties including, but not limited to, mortgages or deeds of trust.

16. This Contract embodies the complete agreement between the parties hereto and cannot be changed or modified except by a written instrument subsequently executed by the parties hereto. This Contract and the terms and conditions hereof apply to and are binding upon the heirs, successors and assigns of both parties.

17. A copy of this document may be executed by each party, separately, and when each party has executed a copy thereof, such copies taken together shall be deemed to be a full and complete contract between the parties.

18. This Agreement shall be governed and construed by the laws of the State of Colorado. Venue shall be in Mesa County, Colorado.

19. Each party has obtained the advise of its own legal and tax counsel.

IN WITNESS of the foregoing, the parties hereto have executed this Contract as of the day and year first above written.

For the City of Grand Junction, a

Colorado home rule municipality Attest:

___________________________________ _____________________________________

Mark K. Achen, City Manager Stephanie Nye, City Clerk

Dyer, LLC, a Colorado Limited Liability Company:

_____________________________________

James K. Dyer, Managing Partner

Exhibit “A”

(“Dyer Property”)

Beginning at the Northeast Corner of Section 12, Township 2 South, Range 1 East of the Ute Meridian, County of Mesa, State of Colorado;

thence S 89°44’52” W along the North boundary line of the NE1/4 NE1/4 of said Section 12 a distance of 1328.76 feet to the Northwest Corner of the NE1/4 NE1/4 of said Section 12;

thence S 00°20’31” E along the West boundary line of the NE1/4 NE1/4 of said Section 12 a distance of 164.68 feet;

thence S 87°14’45” E a distance of 3913.86 feet to a point on the East boundary line of the NE1/4 NW1/4 of Section 7, Township 2 South, Range 2 East of the Ute Meridian;

thence N 00°11’45” W along the East boundary line of the NE1/4 NW1/4 of said Section 7 a distance of 368.46 feet to the Northeast Corner of the NE1/4 NW1/4 of said Section 7;

thence S 89°46’51” W along the North boundary line of the NE1/4 NW1/4 of said Section 7 a distance of 2580.33 feet to the Point of Beginning.