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HomeMy WebLinkAboutRESOLUTION Housing Authority 1-96RESOLUTION 1-96 WHEREAS, by Ordinance No. 18-96 , the Board of Trustees of the Town of Estes Park has agreed to transfer certain real property ("the property"), the legal description of which is set forth on Exhibit "A" attached hereto and incorporated herein by reference to the Estes Park Housing Authority; and WHEREAS, attached hereto as Exhibit "B" and incorporated herein by reference is an Agreement for sale and purchase of the property between the Estes Park Housing Authority as Seller and Lone Tree Village Apartments Limited Partnership, a Colorado Limited Partnership as Purchaser; and WHEREAS, said agreement provides for the design, construction and operation of a 57 unit affordable housing development on the property pursuant to the terms and conditions set forth in the agreement. NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE ESTES PARK HOUSING AUTHORITY: Section 1. The Board of Directors hereby approves the execution of the agreement for sale and purchase of the property set forth on Exhibit "B" for the purpose of providing affordable housing units within the Town of Estes Park. Section 2. The Board of Directors authorizes the appropriate officials of the Estes Park Housing Authority to execute the agreement as set forth on Exhibit "A", execute any necessary deeds transferring the property from the Housing Authority to the Purchaser, executing and delivering all instruments, documents and agreements necessary to fulfill the terms and conditions of the agreement, and the transfer of the property to Purchaser. PASSED AND ADOPTED THIS 10th DAY OF SEPTEMBER, 1996. ESTES PARK HOUSING AUTHORITY G7TAL� Chairman ATTEST: EXHIBIT "A" A tract of land located in the SE1/4 of Section 30, Township 5 North, Range 72 West of the 6th P.M., Larimer County, Colorado being more particularly described as commencing at the C1/4 corner of said Section 30, as monumented by a Town of Estes Park brass cap and with all bearings contained herein being relative to the North line of said SE1/4 considered as bearing South 89 degrees 11 minutes 00 seconds East; thence South 89 degrees 11 minutes 00 seconds East a distance of 1,297.18 feet along said North line to the NE corner of the W1/2 of the.SE1/4 of said Section 30; thence South 00 degrees 00 minutes 21 seconds West a distance of 640.55 feet along the East line of the W1/2 of the SE1/4 of said Section 30 to the True Point of Beginning; thence South 00 degrees 00 minutes 21 seconds West a distance of 411.31 feet along said East line to a point on the North right-of-way line of Graves Avenue; thence West a distance of 404.45 feet to the Southeast corner of De Ville Subdivision; thence North a distance of 619.19 feet alone the East -line of De Ville Subdivision to the Southerly. right-of-way line of Manford Avenue; thence South 62 degrees 48 minutes 00 seconds East a distance of 454.78 feet along said Southerly right-of-way line to the True Point of Beginning. Being a portion of Lot 5, MANFORD ADDITION to the Town of Estes Park, County of Larimer, State of Colorado. County of Larimer, State of Colorado. AGREEMENT FOR SALE AND PURCHASE OF REAL ESTATE Seller: Estes Park Housing Authority, a Colorado body corporate and Lone Tree Village Limited Partnership, a Colorado limited partnership Purchaser: Lone Tree Village Apartments Limited Partnership, a Colorado limited partnership TABLE OF CONTENTS Section Page 1. Sale and Purchase 2 2. The Property 2 3. Purchase Price 3 4. Seller's Representations and Warranties 4 5. Purchaser's Representations and Warranties 8 6. A. Covenants of Seller 9 B. Covenants of Purchaser 10 7. Contingencies 12 8. The Closing 15 9. Default 20 10. Brokers 21 11. Entire Agreement; No Oral Amendments 21 12. Notices 21 13. Survival 22 14. Successors and Assigns 22 15. Computations of Time 23 16. Effective Date 23 17. Further Assurance 23 18. Counterparts 23 19. Governing Law 24 20. Captions; Exhibits 24 21. Assignability 24 22. IRS Reporting Requirements 24 angie\document\estes.p&s (wp51) ii AGREEMENT FOR SALE AND PURCHASE OF REAL ESTATE THIS AGREEMENT FOR SALE AND PURCHASE OF REAL ESTATE (the "Agreement") is dated as of its Effective Date (as defined in Section 16) by and between ESTES PARK HOUSING AUTHORITY, a body corporate, whose address is 170 MacGregor Avenue, Estes Park, Colorado 80517 (the "Housing Authority"), and LONE TREE VILLAGE LIMITED PARTNERSHIP, a Colorado limited partnership, whose address is 170 MacGregor Avenue, Estes Park, Colorado 80517 (the "Partnership") (collectively, the Housing Authority and the Partnership are referred to as "Seller") and LONE TREE VILLAGE APARTMENTS LIMITED PARTNERSHIP, whose address is 3201 South Tamarac Drive, Suite 200, Denver, Colorado ("Purchaser"). RECITALS A. The Partnership is the owner of certain unimproved real property known as "Lone Tree Village" located in the Town of Estes Park, County of Larimer, State of Colorado. The Partnership purchased the property from the Housing Authority. B. The Purchaser desires to purchase and the Seller desires to sell such property, subject to the terms and conditions set forth in this Agreement. C. The Purchaser intends to construct a 57 unit affordable housing development on angie\document\estes.p&s (wp51) 1 such property (the "Project"), with the benefit of certain low income housing tax credits previously obtained by Seller and certain governmental grants being applied for. AGREEMENT NOW, THEREFORE, in consideration of the covenants set forth in this Agreement and the Seller's and the Purchaser's reliance thereon, the Seller and the Purchaser agree as follows: 1. Sale and Purchase. Subject to the terms and conditions of this Agreement, the Seller agrees to sell, and the Purchaser agrees to purchase the Property. 2. The Property. The "Property" means the real property containing approxi- mately 4.78 acres, known as "Lone Tree Village", located in Estes Park, Colorado, as more particularly described in Exhibit "A" attached hereto, together with: all rights and rights -of -way, easements, privileges, and appurtenances pertaining thereto; all rights of the Seller lying in the bed of any street, highway, alley or right-of-way, whether open, proposed or vacated; all development rights associated therewith; all studies, plans, test reports, surveys, permits, licenses, and all similar instruments and documents, if any, pertaining thereto; all right, title and interest of the Seller in and to all mineral rights, on, in, under, or appurtenant thereto; and all right, title and interest of the Seller, if any, in and to all water, wells, ditches, stock in any water company or rights thereto associated or used in connection therewith. angie\document\estes.p&s (wp51) 2 The Housing Authority acquired the Property from the Town of Estes Park pursuant to a Quit Claim deed dated November 28, 1995. The Partnership acquired the Property from the Housing Authority pursuant to a Quit Claim Deed dated December 13, 1995. In connection with the acquisition of the Property from the Housing Authority, the Partnership agreed to pay the Partnership $397,000 (the "Land Payment Obligation") and to reimburse the Housing Authority for certain costs set out on Exhibit D. In addition, the Partnership and the Housing Authority executed a Development Services Agreement dated October 30, 1995 (the "Development Agreement) under which the Housing Authority agreed to provide certain development services to the Partnership with respect to the Property and the Partnership agreed to pay certain development fees to the Authority. 3. Purchase Price. The purchase price (the "Purchase Price") to be paid by the Purchaser to the Seller to acquire the Property will be THREE HUNDRED NINETY SEVEN THOUSAND DOLLARS ($397,000), payable by the Purchaser executing and delivering to the Housing Authority at the Closing a promissory note, in the form attached hereto as Exhibit "B" (the "Promissory Note"). The Promissory Note shall be deemed to have been transferred by the Purchaser to the Partnership in payment for the Property, and then to have been transferred by the Partnership to the Housing Authority in satisfaction of the Land Payment Obligation. On receipt of the Promissory Note, and reimbursement of the costs described on Exhibit D, the Housing Authority shall be deemed to have released the Partnership from the Land Payment Obligation and such reimbursement obligation. The Promissory Note will be secured by a deed of trust encumbering the Property in the form attached hereto as Exhibit "C" (the "Deed of angie\document\estes.p&s (wp51) 3 Trust"), which will be executed at the Closing and delivered by the Purchaser to the Public Trustee of Larimer County, Colorado, for the use and benefit of the Seller. The Deed of Trust will be subordinate in all respect to the Purchaser's construction loan and permanent loan, as more particularly set forth therein. In addition, the Purchaser shall assume the Partnership's obligations to reimburse the Housing Authority for the costs described on Exhibit D and the Partnership's obligations under the Development Agreement. 4. Seller's Representations and Warranties. The Seller represents and warrants as of the Effective Date and as of the Closing Date (as defined below) that the following representations and warranties are and will be true and correct: (a) Due Authorization. Each Seller is a body corporate or partnership, respectively, validly organized and in good standing under the laws of the State of Colorado. This Agreement has been, and all documents to be delivered by each Seller to the Purchaser at the Closing will be, duly authorized, executed and delivered by the respective Seller; is, and at the Closing will be, legal, valid and binding obligations of the respective Seller; as of the Closing will be sufficient to convey title to the Property to the Purchaser; are, and at the Closing will be, enforceable in accordance with their respective terms; do not, and at the Closing will not, violate any provisions of any agreement, contract, law, rule or regulation affecting the Property or the Seller or by which the Property or the Seller may be bound or affected. The individual executing this Agreement has full power and authority to bind the Seller as set forth in this Agreement. angie\document\estes.p&s (wp51) 4 (b) Foreign Person. The Seller is not a "foreign person" within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code") . (c) Subdivision. The Property (i) appears in the public records as a separate lot, alienable without any further requirement of any law, rule or regulation affecting the subdivision of real property, and (ii) comprises a separate tax lot for the levy of real property taxes in the jurisdiction where the Property is located. (d) Governmental Obligations. All payments, land dedications and public improvements required to be made by, to or on behalf of all governmental or quasi - governmental entities having jurisdiction over the Property, except those set forth on the development plan, have been made or will be made by the Seller prior to the Closing Date. (e) Access. The Property fronts on, and has direct and unobstructed full -turn access to, one or more public highways or streets. All curb cuts for such access as set forth in the approved development plan have been approved by the appropriate governmental entity, and the Seller has received no notice of, nor has any knowledge of, any restrictions with respect to any such curb cuts or any action or proceeding to alter, restrict, eliminate or relocate any such curb cuts. (f) Zoning. The Property is subject to the zoning regulations of the angie\document\estes.p&s (wp51) 5 Town of Estes Park and is zoned for multifamily housing with the development rights for the construction of an affordable housing multi -family project containing at least 57 apartment units, as more fully set forth in the approved development plan. No condition or use on the Property violates the current zoning regulations. (g) Litigation and Proceedings. There is no pending litigation, proceeding or investigation by any governmental authority or any other person against or otherwise affecting any of the Property, nor does the Seller know of any grounds for any such litigation, proceeding or investigation. (h) Tax Protest. There is no pending application or proceeding for the reduction of the assessed valuation of any of the Property for any tax year. (i) Hazardous Waste. To the best of Seller's knowledge, there are no hazardous wastes, hazardous substances, toxic chemicals, pollutants or contaminants (as those terms are defined pursuant to any federal, state or local statute, ordinance, code or regulation) located on, in or adjacent to the Property or in the soils or groundwater of the Property. The Seller has neither received nor has knowledge of any claims, notices or directives from any governmental entity with respect to any of the foregoing. There are and have been no underground storage tanks on the Property. The Seller has caused to be performed a "Phase I" environmental assessment of the Property, prepared by Rocky Mountain Consultants, Inc., dated October 3, 1995 (the "Phase I"), a copy of which has been delivered to Purchaser, and Seller angie\document\estes.p&s (wp51) 6 believes such assessment to be accurate. (j) Other Rights. Other than the Purchaser pursuant to this Agreement, no person or entity has any right or option to purchase or otherwise acquire the Property or any portion thereof or interest therein. (k) Utilities. Public water, sewer, natural gas, telephone and electric lines, conduits or facilities are located at the boundaries of the Property and are of sufficient capacity to service the Project. There are in effect no moratoriums or other restrictions affecting such utilities or their availability to the Property. (1) Assessments. No portion of the Property is subject to or affected by any assessments for improvements, whether or not a lien thereon. The Seller has no knowledge of any assessments proposed on account of any such improvements or any work proposed, commenced or completed which would give rise to any such assessment. (m) Condemnation. No condemnation proceedings have been commenced and the Seller has no knowledge or notice of any contemplated condemnation proceeding against the whole or any part of the Property. (n) Not Misleading. No representation or warranty made by the Seller in this Agreement or in anystatement or certificate already furnished or to be furnished by the angie\document\estes.p&s (wp51) 7 Seller in connection with the transaction contemplated herein contains or will contain any untrue statement or omits or will omit to state a material fact necessary to make the statements contained therein not misleading. (o) Documents. The documents delivered to the Purchaser by the Seller will be all of the instruments, documents and agreements binding upon the Seller or the Property pertaining to the title, condition, use or operation of the Property and the expenses to which it is subject, will be true and correct copies, and, unless otherwise indicated, will be in full force and effect in accordance with the terms thereof. (p) Tax Credits. The Partnership had received from the Colorado Housing and Finance Authority ("CHFA") a Carryover Allocation for $490,356 per annum of 1995 low income housing tax credits allowing development of 57 multi -family units on the Property (the "Tax Credits"). 5. Purchaser's Representations and Warranties. The Purchaser represents and warrants as of the Effective Date and as of the Closing Date that the following representations and warranties are and will be true and correct: (a) Due Authorization. This Agreement has been duly authorized, executed and delivered by the Purchaser. angie\document\estes.p&s (wp51) 8 (b) Foreign Person. The Purchaser is not a "foreign person" within the meaning of Sections 1445 and 7701 of the Internal Revenue Code. 6. A. Covenants of Seller. The Seller will perform each of the following: (a) Tests and Inspections. From the Effective Date to and including the Closing Date, the Seller will permit the Purchaser to make such surveys, soil tests and borings and other inspections related to the Property which the Purchaser deems necessary or desirable. The Seller agrees to cooperate fully with any such tests or inspections made by the Purchaser or at the Purchaser's direction. The Purchaser will indemnify and hold the Seller harmless from any loss, cost, claim or expense, including, without limitation, attorneys' fees, arising out of the Purchaser's tests and inspections of the Property pursuant to this Section. (b) Delivery of Documents. The Seller will deliver or make available to the Purchaser, at or promptly after execution of this Agreement, copies of any relevant studies, plans, test reports, surveys, permits, licenses and similar instruments and documents with respect to the Property in the possession of the Seller or under the Seller's control for the Purchaser's information and review. (c) Title Commitment and Tax Certificate. The Seller, at the Seller's expense, has delivered to the Purchaser and the Purchaser's attorney, with respect to the Property, a current real property tax certificate (the "Tax Certificate") and a current commitment ("Title angle \document\estes.p&s (wp5 1) 9 Commitment") from the Title Company for the issuance of an ALTA form B-1970 (Rev. 1-17-70 and 1-17-84) Owner's Policy of Title Insurance (the "Owner's Policy") to the Purchaser in an amount equal to the Purchase Price together with good and legible copies of all instruments constituting exceptions or conditions to the Seller's title as reflected in the Title Commitment and any instruments referred to in such instruments. The Title Commitment sets forth the requirements of the Title Company for deleting all of the standard pre-printed exceptions from the Owner's Policy, except real property taxes which are not yet due and payable. (d) New Agreements. The Seller will not (unless the Purchaser will have previously given its prior consent in writing) enter into any agreement affecting the Seller or the Property which will interfere with the Seller's ability to close the transaction contemplated in this Agreement or bind the Purchaser or the Property after the Closing. (e) Seller's Cooperation. The Seller agrees to execute and deliver, promptly upon request, such applications and other documents and information as may be reasonably required to accomplish any provisions of this Agreement, and to cooperate fully with the Purchaser in fulfilling all of the covenants and satisfying all of the contingencies set forth in this Agreement. B. Covenants of Purchaser. (a) Purchaser shall diligently pursue all necessary financing sources for angie\document\estes.p&s (wp5 1) 10 the contemplated development of the Property, including the tax credit equity, construction financing and permanent financing. (b) Following the Closing, Purchaser shall diligently prosecute the construction, completion and operation of the Project as an affordable housing project in accordance with such designs, budgets, plans and specifications previously delivered to Seller or the Town of Estes Park, and the federal Low Income Housing Tax Credit Program. The design of the Project as submitted for utility approvals, variances and other required state and local permits and approvals for the development of the Project shall be substantially in accordance with the design previously approved by Seller. Any material deviations therefrom shall be subject to Seller's approval, which approval will not be unreasonably withheld or delayed. Seller will cooperate with Purchaser in all respects in its efforts to obtain the Approvals. During the construction of the Project, Purchaser shall keep Seller informed of all material issues concerning the progress of construction. In furtherance of the preceding sentence, Purchaser and Seller shall meet monthly to review the progress of construction. This covenant shall survive the Closing. (c) In the event that Purchaser fails to commence construction within ninety days after the date hereof or if, following Purchaser's commencement of construction and prior to occupancy of the Project by tenants, Purchaser shall abandon construction for a period of ninety days or more (unless such abandonment is due to weather conditions or other acts of God or events beyond Purchaser's control and Purchaser is using its diligent efforts to re- commence construction and complete the Project), then Seller shall have the right to cause the angie\document\estes.p&s (wp5 1) 11 reconveyance of the Property to Seller, by written notice to Purchaser. Within twenty (20) days after the giving of such notice, Purchaser shall deliver to Seller a deed for the Property in recordable form, together with any other instruments as may be necessary to reconvey to Seller the Property, any improvements made thereon by Purchaser, all plans, specifications, construction drawings, surveys, contracts, warranties, governmental approvals, assignment of the tax credits and any other document or asset related to the project. Within ninety days after such reconveyance by Purchaser to Seller, Seller shall reimburse Purchaser for all verifiable reasonable out-of-pocket costs and expenses which Purchaser has incurred to the date of reconveyance in connection with the development of the Property, which are: (i) Labor and/or materials which a third party would be entitled to claim a mechanic's lien pursuant to the provisions of Section 38-22-101 et seq., C.R.S.; and (ii) Said labor and/or materials are not subject to a lien of any third party which lien is secured by the property; and (iii) Said expenses are not set forth on Exhibit "D" attached to this Agreement. 7. Contingencies. The Purchaser's obligation to purchase the Property is made expressly conditional upon the timely satisfaction of all of the contingencies set forth below: angie\document\estes.p&s (wp5 1) 12 (a) Tax Credit Equity. The Purchaser will use its diligent efforts prior to Closing to obtain a commitment from a tax credit investor to contribute equity capital for acquiring and developing the Property on terms satisfactory to the Purchaser. If the Purchaser does not obtain such equity contribution commitment prior to Closing, this contingency will be deemed unsatisfied. (b) Approval of Title and Tax Certificate. On or before Closing, the Purchaser will notify the Seller's attorney in writing as to any objections to matters contained in the Title Commitment. The Seller will use diligent efforts to cure any such objection, at the Seller's expense. If any such objections remain uncured and the Purchaser does not waive such objections in writing, this contingency will be deemed unsatisfied. The exceptions to title accepted by the Purchaser pursuant to this Section are referred to in this Agreement as the "Permitted Exceptions." Notwithstanding the foregoing, Seller shall not be obligated to cure any objections where the cure requires the payment of money in excess of $5,000, other than objections for taxes, deeds of trust and other liens created by Seller's acts or failures to act, although any such objections which are not cured shall not constitute Permitted Exceptions. (c) Bankruptcy. At all times between the Effective Date and the Closing Date, the Seller will not be in receivership; will not have made an assignment for the benefit of creditors; will not have admitted in writing its inability to pay its debts as they mature; will not have been adjudicated a bankrupt or have filed a petition in voluntary bankruptcy or a petition or answer seeking reorganization or an arrangement with creditors under the federal angie\document\estes.p&s (wp51) 13 bankruptcy law or any other similar law or statute of the United States or any State; and no such petition will have been filed against any of the Seller; otherwise, this contingency will be deemed unsatisfied. (d) Casualty and Condemnation. Prior to the Closing Date, the Property will not have suffered any damage or casualty, and there will not have been commenced or threatened any proceeding for the taking by any governmental or quasi -governmental entity of any part of the Property; otherwise this contingency will be deemed unsatisfied. If the Purchaser waives this contingency in writing, the Purchaser will accept the Property in the condition in which it is left following such damage, casualty or taking, with an abatement of the Purchase Price equal to the proceeds of any insurance or condemnation award allowed, or, if such proceeds have not been collected by the Seller at the time of the Closing, with an assignment by the Seller to the Purchaser of all rights to the collection of such proceeds. (e) Representations and Warranties. All of the representations and warranties of the Seller contained in Section 5 and elsewhere in this Agreement are true and correct on the Closing Date, as if made as of the Closing Date; otherwise, this contingency will be deemed unsatisfied. (f) Tax Credits. Purchaser and Seller will use their diligent efforts prior to Closing to cause CHFA to transfer the Tax Credits to Purchaser. IF CHFA fails or refuses to transfer the Tax Credits to Purchaser prior to Closing, this contingency will be deemed angie\document\estes.p&s (wp51) 14 unsatisfied. (g) Environmental Inspection. Seller has delivered to Purchaser a copy of the Phase I and shall cause the Phase I to be certified to Purchaser prior to the Closing. Purchaser shall, during the Inspection Period, review the Phase I, and conduct any additional environmental studies of the Property as Purchaser deems necessary. If Purchaser in its sole discretion becomes dissatisfied prior to Closing with the environmental condition of the Property, this contingency will be deemed unsatisfied. Each of the contingencies set forth above is for the sole benefit of the Purchaser and may be waived by the Purchaser by written notice to the Seller. Should one or more of the contingencies set forth above not be satisfied or waived by the Purchaser on or before the date required, then upon notice from Purchaser to Seller given not more than ten days after the expiration of the applicable date, this Agreement will be deemed terminated and each party will be relieved of all further obligations under this Agreement. 8. The Closing. (a) The Closing Date and Place. The "Closing" will mean the payment of the Purchase Price and the execution and delivery of the documents described below. Unless otherwise agreed to in writing by the parties, the Closing will occur on the Effective Date of this Agreement. The Closing will take place by the delivery of all required documents and payments angie\document\estes.p&s (wp51) 15 to the Title Company, together with appropriate escrow instructions from the Purchaser and the Seller to the Title Company. The actual date of the Closing is referred to in this Agreement as the "Closing Date." (b) Documents at the Closing. At the Closing, the following documents and materials, each duly executed and acknowledged as appropriate, will be delivered by the parties: (i) A Statutory General Warranty Deed conveying the Property, subject only to the Permitted Exceptions, from the Seller to the Purchaser. (ii) An Assignment of Licenses, Permits and Other Intangibles, from the Seller to the Purchaser. (iii) Any affidavits or indemnities required from the Seller by the Title Company in order to omit from the Owner's Policy all exceptions for unfiled or unrecorded mechanics', materialmen's or other liens with respect to the Property, for unrecorded easements and for parties in possession. (iv) A Certification as to Non -Foreign Status from the Seller pursuant to Section 1445 of the Internal Revenue Code. angie\document\estes.p&s (wp51) 16 (v) A Certificate of the Seller stating that all of the representations and warranties of the Seller made in Section 4 and elsewhere in this Agreement are true and correct on the Closing Date as if made as of the Closing Date. Authority. (vi) The Promissory Note from the Purchaser to the Housing (vii) The Deed of Trust from the Purchaser for the benefit of the Housing Authority. (viii) Certified copy of Resolutions of the Estes Park Housing Authority and the general partner of the Partnership authorizing the sale of the Property to Purchaser for the Purchase Price pursuant to the terms of this Agreement. (ix) The Closing Statement (as defined below). (x) An agreement with the Title Company setting forth the closing documents to be recorded, the form of the Owner's Policy, and instructions to record and deliver documents and disburse payments in accordance with the Closing Statement when all conditions precedent to the disbursement of the balance of the Purchase Price due to the Seller, the recording of any closing documents and the issuance of the Owner's Policy to the Purchaser have been met. angie\document\estes.p&s (wp51) 17 (xi) Such documents evidencing the Seller's partnership or corporate existence, good standing, qualification to do business, or authority to complete this transaction as may be required by the Title Company or reasonably required by the Purchaser. (xii) An assumption by the Purchaser in form acceptable to Purchaser of the Partnership's obligations to the Housing Authority under the Development Agreement. (xiii) Any other agreement, document or instrument required by this Agreement to be delivered by either party or reasonably necessary to carry out the provisions of this Agreement. (c) Closing Statement. The "Closing Statement" to be delivered by the parties at the Closing will reflect the Purchase Price and a proration as of 11:59 p.m. on the date preceding the Closing Date of real property taxes and any other prepaid or accrued expenses affecting the Property. The Closing Statement will reflect the fact that the Seller is obligated to pay the premium for the Owner's Policy; the Purchaser will be responsible for payment of fees for recording the deed, the Deed of Trust and any other conveyance documents and any documentary or other fees payable in connection with such recording; the Seller will be responsible for paying all excise and similar taxes imposed on the conveyance of the Property; each party will pay the fees of all attorneys representing such party; and the Seller and the angle\document\estes.p&s (wp5 1) 18 Purchaser will each be responsible for payment of one-half of any closing or escrow fees charged by the Title Company. At Closing, Purchaser shall reimburse Seller for the costs set forth on Exhibit D, which costs Seller represents have been fully paid. (d) Adjustments and Prorations. Proration for real property taxes will be based upon the most recent assessed valuation and mill levy then available with respect to the Property and will be final as made at the Closing. If, on the Closing Date, the Property will be or will have been affected by any special assessment or assessments which are or may become payable in annual installments, then, whether or not any such assessment or installment is then a charge or lien or was or is payable on or prior to the Closing Date, for the purposes of this Agreement, all the unpaid installments of any such assessment (including those which are to become due and payable after the Closing) will be deemed due and payable and to be liens upon the Property prior to the Closing Date and will not be apportioned between the Seller and the Purchaser, but will be paid and discharged in full by the Seller at or prior to the Closing. (e) Payment of Encumbrances. Any liens and encumbrances on the Property may be paid by the Seller at the Closing with proceeds from this transaction or from any other source. (f) Possession. Possession of the Property will be delivered to the Purchaser on the Closing Date, subject to no leases or tenancies except those included in the Permitted Exceptions. angie\document\estes.p&s (wp51) 19 (g) Title Insurance Policy. At the Closing, the Seller will cause the Title Company to furnish or unconditionally agree to furnish the Owner's Policy to the Purchaser, insuring merchantable title to the Property in the Purchaser, in the amount of the Purchase Price. The Owner's Policy will be subject only to the Permitted Exceptions. 9. Default. If any obligation hereunder is not performed as provided in this Agreement, the following remedies will apply: (a) The Purchaser's Default. If the Purchaser is in default, any money paid by Purchaser toward the purchase of the Property will be forfeited by the Purchaser to the Seller, and both parties will thereafter be released from all obligations hereunder. It is agreed that the amount of damages which may be suffered by the Seller in the event of default by Purchaser is difficult or impossible to measure and that, accordingly, the forfeiture of such sums constitutes liquidated damages and will be the Seller's sole remedy for the Purchaser's failure to perform the obligations of this Agreement. The Seller expressly waive the remedies of specific performance and additional damages. (b) The Seller's Default. If Seller is in default, the Purchaser will have the right either (i) to treat this Agreement as terminated, in which case any sums paid by the Purchaser hereunder will be returned to the Purchaser, or (ii) to treat this Agreement as being in full force and effect and obtain specific performance or recover such damages as may be proper, or both. angie\document\estes.p&s (wp51) 20 (c) Costs and Attorney Fees. If any litigation arises out of this Agreement, the court may award to the prevailing party all reasonable costs and expenses, including, without limitation, attorney fees. 10. Brokers. Each party represents that it has not engaged the services of any real estate agent, broker or finder in connection with this transaction. The Purchaser and the Seller each agree to indemnify, defend and hold the other harmless from and against any and all liability, loss, cost, damage and expense, including, without limitation, attorneys' fees and costs of litigation, which either will ever suffer or incur because of any claim by any agent, broker or finder, whether or not meritorious, for any fee, commission or other compensation with respect to this Agreement or the sale and purchase of the Property contemplated hereby and resulting from the acts of the indemnifying party. 11. Entire Agreement; No Oral Amendments. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, and all prior agreements or understandings will be deemed merged in this Agreement. No amendments, waivers or modifications of or to this Agreement will be made or deemed to have been made unless in writing, executed by the party or parties to be bound thereby. 12. Notices. All notices, consents or other instruments or communications provided for under this Agreement will be in writing, signed by the party giving the same, and will be deemed properly given and received when delivered personally, by confirmed facsimile angie\document\estes.p&s (wp51) 21 transmission or by Federal Express or other similar overnight delivery service and when actually received, if sent by certified mail, return receipt requested, postage prepaid, to the address of a party set forth at the beginning of this Agreement or to such other address as such party may designate by written notice to the other party given in accordance with this Section. All notices to the Purchaser will be delivered faxed or mailed, contemporaneously and in the same manner, to the attention of Charles D. Rubenstein fax number (303) 745-1585. Copies of any notices to the Seller will also be delivered or mailed, contemporaneously and in the same manner, to the Seller's attorney: Gregory A. White Hammond, Clark & White Bank One Building, Suite 418 200 East Seventh Street Loveland, Colorado 80527 Fax number: (970) 669-9380 13. Survival. All obligations, warranties and representations of each of the parties hereunder which are not performed or fully discharged by or through the Closing will remain enforceable and in full force and effect after the Closing. 14. Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, representatives, successors and assigns. The Purchaser may not assign this Agreement without the consent of the Seller. angie\document\estes.p&s (wp51) 22 15. Computations of Time. In computing any period of time under this Agreement, the date of the act, event or default from which the designated period of time begins to run will not be included. The last day of the period so computed will be included unless it is a Saturday, Sunday, or legal holiday, in which event the period will run until the end of the next day which is not a Saturday, Sunday, or legal holiday. 16. Effective Date. This Agreement shall be effective upon its signing by Purchaser and Seller. The Effective Date shall be the date of its signing by the last to sign of Purchaser and Seller, provided notice of such signing is given in accordance with this Agreement. If this Agreement is signed by Seller or Purchaser and not signed by the other within 7 days thereafter, at the option of the signing party exercised at any time before the non -signing party signs this Agreement, this Agreement shall be null and void. The effective date of any other instrument will be the date of delivery in accordance with Section 11 to the party to which it is addressed. The effective date of any other instrument will be the date of delivery in accordance with Section 12 to the party to which it is addressed. 17. Further Assurances. The parties agree to execute such instructions to the Title Company and such other documents and instruments as may be reasonably necessary to carry out the provisions of this Agreement. 18. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute a single instrument. angie\document\estes.p&s (wp51) 23 19. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado. 20. Captions; Exhibits. The captions in this Agreement are inserted for convenience of reference only, do not constitute a part of this Agreement, and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions hereof. The Exhibits referred to as being attached to this Agreement are intended to be incorporated in this Agreement by such reference. 21. Assignability. Purchaser, with the consent of Seller which may be withheld in Seller's sole discretion, may assign its rights and obligations hereunder. In the event of such an assignment, Purchaser shall be released from all obligations under this Agreement if the assignee assumes and agrees to perform this Agreement. 22. IRS Reporting Requirements. For the purpose of complying with any information reporting requirements or other rules and regulations of the Internal Revenue Service ("IRS") that are or may become applicable as a result of or in connection with the transaction contemplated by this Agreement, (collectively, the "IRS Reporting Requirements"), Seller and Purchaser hereby designate and appoint the Title Company to act as the "Reporting Person" (as that term is defined in the IRS Reporting Requirements) to be responsible for complying with any IRS Reporting Requirements. The Title Company hereby acknowledges and accepts such designation and appointment and agrees to fully comply with any IRS Reporting Requirements angie\document\estes.p&s (wp5 1) 24 that are or may become applicable as a result of or in connection with the transaction contemplated by this Agreement. Without limiting the responsibility and obligations of the Title Company as the Reporting Person, Seller and Purchaser hereby agree to comply with any provisions of the IRS Reporting Requirements that are not identified therein as the responsibility of the Reporting Person, including, but not limited to, the requirement that Seller and Purchaser each retain an original counterpart of this Agreement for at least four (4) years following the calendar year of the Closing. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated above. Dated: ao , 1996 angie\document\estes.p&s (wp5 1) 25 Seller: ESTES PARK HOUSING AUTHORITY By) Partnership: LONE TREE VILLAGE LIMITED PARTNERSHIP By: Lone Tree Village Development, Inc. general partner .5-e-e- • trit-f-'5 • Dated: , 1996 angie\document\estes.p&s (wp5 1) 26 Purchaser: LONE TREE VILLAGE APARTMENTS LIMITED PARTNERSHIP By: Simpson Housing Limited Partnership, Managing General Partner By: Paloma LLC, General Partner By. ,,_��� General Manager EXHIBIT D Amounts To Be Reimbursed by Purchaser to Seller at Closing 1. CHFA application fee $ 1,000.00 2. CHFA reservation fee 9,807.30 3. CHFA carryover fee 12,260.00 4. Fishkin & Assoc. Architect's fees 5,781.76 5. Van Horn Engineering - site survey 1,405.00 6. Rocky Mountain Consultants (Phase I) 2,500.00 7. Bonnie Roerig (Rent Study) 3,000.00 8. Lehman, Butterwick 900.00 9. Holme, Roberts & Owen 1,588.13 $38,242.19 angie\document\estes.p&s (wp5 1) 27