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R85-79 authorizing Jim Fritze attorney in fact for Delatte closingCommissioner i/Sy a moved adoption of the following Resolution: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 85- C RESOLUTION AUTHORIZING JAMES R. FRITZE TO ACT AS ATTORNEY -IN -FACT FOR THE BOARD OF COUNTY COMMISS OF THE COUNTY OF EAGLE, STATE OF COLORADO WHEREAS, pursuant to §§41 -4 -104, 30- 11- 101(c), and 30 -11 -107, C.R.S., the Board of County Commissioners of the County of Eagle, State of Colorado (hereinafter referred to as the "Board "), has executed a contract for the exchange of land between the County of Eagle and I.H. DeLatte, a copy of which is attached hereto and made a part hereof by reference thereto; and WHEREAS, by entering into such contract, the Board of would obtain the property described in Exhibit A of said contract which is required to allow construction of the planned new runway at the Eagle County Airport; and WHEREAS, Parcel B described in said contract is not required at the present time for any County purpose; and NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO, that the Board of County Commissioners shall execute a deed of that property described in Exhibit B of said contract, for the purposes described in said contract, and James R. Fritze, Assistant County Attorney, is authorized to deliver said deed to I.H. DeLatte or his agent should the conditions of the contract be complied with and should he receive a deed from I.H. DeLatte to the County for the property described in Exhibit A to said contract in the form and manner as provided in said contract; and BE IT FURTHER RESOLVED that James R. Fritze, Assistant County Attorney, is granted power of attorney to act as attorney -in -fact on behalf of the County of Eagle, State of Colorado, and its Board of County Commissioners, with regard to any and all other actions that may be necessary to accomplish the requirements of said contract, including any actions that may be required at the closing of said con- tract, including any actions that may be required at the closing of said contract and the execution of any documents that are reasonably contemplated or necessary to accomplish the purposes of the Contract to Exchange Land between the County of Eagle and I.H. DeLatte. The County of Eagle does hereby ratify and confirm all that the said attorney shall lawfully do or cause to be done by virtue hereof. MOVED, READ AND ADOPTED by the Board of County Commis- sioners of the County of Eagle, State of Colorado, at its regular meeting held theme =� day of f- , 1985. COUNTY OF EAGLE, STATE OF COLORADO By and Throuc j,h its ATTEST: BOARD OF C NTYCO %MMISSjI�ONERS By ��LG"rLt titu�ap�By: Dav j E- ..,Mott, Chairman L. Gkfsta}fson 1 V.. Donald Welch, C mmissioner Commissioner o_e' 4 seconded adop- tion of the foregoing resolution. The roll having been called, the vote was as follows: Commissioner David E. Mott i-0-Q Commissioner Richard L. Gustafson Commissioner Donald H. Welchy�' This Resolution passed by q101-A/W-0415 vote of the Board of County Commissioners of the County of Eagle, State of Colorado. CONTRACT TO EXCHANGE REAL ESTATE THIS AGREEMENT made and entered into this lSi day of November, 1985, by and between I.H. DeLATTE whose address is 143 Ridgeway Drive, Lafayette, Louisiana, 70503, hereinafter referred to as "DeLatte", and the COUNTY OF EAGLE, STATE OF COLORADO, acting by and through its BOARD OF COUNTY COMMISSIONERS, whose address is 550 Broadway, Eagle, Colorado, 81631, hereinafter referred to as the "County ". W I T N E S S E T H: 1. DeLatte agrees to following described real estate, State of Colorado, to wit: convey to the County the situate in the County of Eagle, See Exhibit "A" attached hereto and made a part hereof by this reference with all easements and rights of way appurtenant thereto, all improvements thereon and all fixtures of a permanent nature, by good and sufficient general warranty deed. Said property will be conveyed free and clear of all encumbrances. 2. The County agrees to convey to DeLatte the following described real estate, situate in the County of Eagle, State of Colorado, to wit: See Exhibit "B" attached hereto and made a part hereof by this reference by good and sufficient general warranty deed. Said real property will be conveyed free and clear of all encumbrances. 3. The difference between the values of the property described in Exhibit "A" and the property described in Exhibit "B ", shall be deemed to be $0.00. 4. Title shall be merchantable to the respective parties hereto. Each party agrees to furnish to the other party on or before December,4, 1985, a current commitment for title insurance policy. Both parties will deliver the appropriate title insurance policy to the other party after closing and the County shall pay the premiums thereon. Except as stated in paragraphs 1, 2 and 6, if title is not merchantable and written notice of defect is given by either party to the other party within the time herein provided for delivery of deed and shall not be rendered merchantable within 30 days after written notice, then this Contract, at the option of the party giving such notice, shall be void and of no effect and each party hereto shall be released from all obligations hereunder; provided, however, that in lieu of correcting said defects, the party receiving such notice may, within the said thirty (30) days, obtain a commitment for owner's title insurance policy in the amount of the purchase price reflecting title insurance protection in regard to such defect(s), and the party giving such notice shall have the option of accepting the then existing insured title in lieu of such merchantable title. DeLatte shall furnish to the County a copy of the title insurance policy he obtained when he purchased the land, of which the parcel described in Exhibit A is a part. 5. General taxes for the year of closing shall be the responsibility of the party acquiring the property. 6. Each party agrees to execute and deliver his deed to the other party on December 12, 1985, or, by mutual agreement, at an earlier date, conveying his property free and clear of all taxes (including special improvements now installed, whether assessed or not, unless specifically hereinafter excepted), except general taxes for the year of closing. The property of each party shall be subject to building and zoning regulations pertaining thereto and shall be subject to any tenancies hereinafter set forth and shall be free and clear of all liens and encumbrances except those hereinabove described, and except: As to the property described in Exhibit "A": Reservations of record and recorded and /or apparent easements for electric power, telephone, and water as well as an undivided one -half interest in and to all oil, gas and other minerals without limitation, as reserved to Grace Olesen in Book 166 at Page 33. As c the property described in Exhibit "B" Reservations of record and recorded and /or apparent easements for electric power, telephone, and water as well as an undivided one -half interest in and to all oil, gas and other minerals without limitation, as reserved to Grace Olesen in Book 166 at Page 33. -2- l£ 3 � 7. The exchange of deeds for the real property described in paragraphs 1 and 2 shall take place at 11:30 A.M. on December 12, 1985, or such other time as may be agreed to by the parties in writing. The closing shall be held at the office of the Eagle County Attorney, 550 Broadway, Eagle, Colorado, or at such other place as the parties may mutually agree. 8. Possession of the premises shall be delivered to each purchaser upon execution of this agreement. The property described in Exhibit A shall be subject to the following leases or tenancies: None and the property described in Exhibit B shall be subject to the following leases and tenancies: None 9. Both parties have examined the properties and accept the same in the present condition. Neither party is relying on representations of the other party or real estate broker or agent, as to zoning other than as specifically set forth herein. 10. Time is of the essence herein, and if any payment or other condition hereof is not made, tendered or performed by either of the parties hereto as herein provided, then this Contract, at the option of the party who is not in default, may be terminated. In the event of such termination, any payments made by the non - defaulting party shall be returned to said party, and the non - defaulting party may recover such additional damages as may be proper. In the event, however, the non - defaulting party elects to treat this Contract as being in full force and effect, the non - defaulting party shall have the right to an action for specific performance and damages. 11. This Contract shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, successors and assigns. 12. Additional Provisions. (a) As additional consideration for DeLatte entering into this agreement, the County hereby warrants and represents, -3- with the understanding that DeLatte is relying upon these warranties and representations in entering into this Contract, as follows: (i) The County agrees to cooperate with DeLatte in modification of the existing special use permit for his gravel pit so as to remove that area inadvertently included but located on the County property due to a surveyor's error. (ii) The County agrees to take no action to unfairly restrict operation of DeLatte's gravel permit by unfair or unjust application of County regulations. This paragraph is not to be construed so as to prevent the County from just, fair application of its land use regulations or other regulatory powers, for the County has no power to contract away its proper regulatory powers. (b) Each party shall deliver with the commitment described in paragraph 4 (the "Commitment "), copies of all exceptions and other matters of record which are referenced in said Commitment. The Commitments shall agree to delete all standard exceptions and to provide such endorsements as are reasonably requested by the other party. It is acknowledged and understood that any title insurance required by the County on the Property described in Exhibit A shall be furnished at the County's sole cost and expense. The title policy delivered to each party for the property described in Exhibit B shall be in the amount of $3,000.00 on an ALTA owner's policy, Form B, 1970 Edition. (c) It is acknowledged and agreed by the County that the properties described in Exhibits A and B have not been subdivided and have never been conveyed as a separate parcel prior to this transaction. The County agrees to make application for recognition by duly adopted resolution that the division of land contemplated by this Contract for parcels described in Exhibit A, and Exhibit B, and the parcels shall not be treated as "subdivision" or "subdivided land" as that term is defined in {30 -28 -101, C.R.S. or the Eagle County Land Use Regulations. The closing of this Contract shall be subject to the County having obtained such a resolution. By this Contract, the County is authorized to apply for exemption for the subject real parcels owned by DeLatte. The County agrees to indemnify and hold DeLatte harmless from any and all damages, loss, claim or expense arising out of any claim of improper subdivision or violation of (30 -28 -101, et sea., C.R.S. (d) Each party hereto warrants and represents that neither party has incurred any liability for the payment of any brokerage fee or commission in connection with the transaction contemplated herein. If either of the parties shall breach the foregoing warranty and representation, it shall indemnify the other party and hold the other party harmless from and against any damage, liability, loss, claim, or expense suffered by the other party as a result of such breach. (e) At the closing, the following shall occur: (i) DeLatte shall execute a general warranty deed to the County for the property described in Exhibit A. (ii) The County shall execute a general warranty deed for the property described in Exhibit B. (f) If any term, covenant, condition, or provision of this Contract or application thereof to any person or circumstance shall at any time or to any extent be invalid or unenforceable, the remainder of this Contract, or the application of such term or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Contract shall be valid and shall be enforced to the fullest extent permitted by law. (g) Whenever any notice, demand, or request is required or permitted under this Contract, such notice, demand, or request shall be in writing, shall be deemed to have been properly given or served upon the earlier to occur of actual receipt or within five (5) days of when deposited in the United States mails, with adequate postage prepaid, and sent by registered or certified mail, with return receipt requested, to the addresses set forth below or at such other addresses as are specified by written notice given in accordance with the terms hereof: If to DeLatte I.H. DeLatte 143 Ridgeway Drive Lafayette, Louisiana 70503 -5- If to the Coun County of Eagle P.O. Box 850 Eagle, Colorado 81631 ATTN: Office of the Eagle County Attorney (h) It is the primary intent of DeLatte to enter into a tax - deferred, like -kind exchange involving the properties described in Exhibits A and B pursuant to {1031 of the Internal Revenue Code, as amended. In order to effectuate this purpose, the County agrees to execute such further and additional documents as are, in DeLatte's opinion, reasonably necessary, so long as the County is not held responsible for any obligations or costs beyond or in excess of those set forth in this Contract. The parties further recognize this exchange was negotiated in lieu of condemnation of the property described in Exhibit A by the County. (i) Miscellaneous. (i) This Contract contains the entire understanding and agreement between the parties, and all prior negotiations, agreements, and understandings, oral or written, are fully merged herein and superseded hereby. This Contract may not be modified in any manner except by an instrument in writing signed by both parties. (ii) Covenants, agreements, warranties, and representations contained herein shall not merge into the various documents executed and delivered at the closing, but shall instead survive the closing and the conveyance of the properties described in Exhibits A and B. (iii) This Contract is made in and shall be governed by the law of Colorado. (iv) This Contract may not be assigned by either DeLatte or the County without the prior written approval of the other party having first been obtained. (v) All real estate recording and documentary fees payable in connection with the exchange contemplated hereby shall be paid by the County. (vi) In the event of any litigation arising out of this agreement, the Court may award to the prevailing party Jet all reasonable costs and expense connection with the litigation, limitation, all attorneys' fees. of such party in including, without IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year first above written. DeLATTE: DeLatte COUNTY: COUNTY OF EAGLE, STATE OF COLORADO By and Through its ATTE/S{T/1:/ ,n / BOARD OF COUNTY COMMISSIONERS BYkCY/f -% J�6�y: Clerk of t'.e Board'of J David E. Mott, Chairman County Corimissioners -7- 1 STATE OF,,�� ) )ss: COUNTY OF� ) l SUBSCRIBED AND SWORN TO before me this day of November, 1985, by I.H. DeLatte. WITNESS my hand and official seal. My Commission Expires: MY COMMISSION IS FOR LIFE Not Public Address: d � 7 �� STATE OF,,�� ) )ss: COUNTY OF� ) l SUBSCRIBED AND SWORN TO before me this day of November, 1985, by I.H. DeLatte. WITNESS my hand and official seal. My Commission Expires: MY COMMISSION IS FOR LIFE Not Public Address: d � 7 �� rmountuin engineering & land fur a in Y 9 co. � 406 s. hyland square, suite a -1 glenwood springs, Colorado 81601 945 -2045 p.o. box 14 gypsum, Colorado 81637 524.9414 Legal Description Delatte to Eagle County September 5, 1985 A parcel of land located in Tract 59 and Section 3 all in Township 5 South, Range 85 West of the 6th Principal Meridian according to the Independent Resurvey of said township and range as accepted by the U.S. Surveyor General`s Office in Denver, Colorado on June 20, 1922. All bearings contained herein being relative to a bearing of North 00 °21'00" East on a line from the witness corner for angle point 3 of Tract to angle point 2 of Tract 57. 57 Said parcel of land being more particularly described as follows: Beginning at a point on the boundary of a parcel of land described by Reception Number 256102 of the Eagle County, Colorado records whence a brass cap set for angle point 4 of Tract 59, angle point 1 of Tract 60, angle point 2 of Tract 57 and angle point 3 of Tract 56 bears South 43 °48'23" East, 755.76 feet; thence on the boundary of said parcel as described by Reception Number 256102 the following three (3) courses: I. South 75 °08'06" East, 107.24 feet; 2. North 84 °40'55" East, 309.89 feet; 3. North 39 004'03" West, 44.50 feet; thence departing said boundary South 84 040'55" West, 385.82 feet to the point of beginning and containing 0.295 acres, more or less. r EXHIBIT I1 c EXHIBIT mount�n er�c�eneering & land lur y g co, B, 406 S. hyland square, suite a.1 glenwood springs, Colorado 81601 945 -2045 P.O. box 14 gypsum, Colorado 81637 524 -9414 Legal Description Eagle County to Delatte September 5, 1985 A parcel of land located in Tract 59 and Section 3 all in Township 5 South, Range 85 West of the 6th Principal Meridian according to the Independent Resurvey of said township and range as accepted by the U.S. Surveyor General's Office in Denver, Colorado on June 20, 1922. All bearings contained herein being relative to a bearing of North 00 °21'00" East on a line from the witness corner for angle point 3 of Tract 57 to angle point 2 of Tract 57. Said parcel of land being more particularly described as follows: Beginning at a point on the boundary of a parcel of land described by Reception Number 256102 of the Eagle County, Colorado records whence a brass cap set for angle point 4 of Tract 59, angle point 1 of Tract 60, angle point 2 of Tract 57 and angle point 3 of Tract 56 bears South 43 °48'23" East, 755.76 feet; thence North 75 008'06" West, 395.00 feet on the boundary of a parcel of land described by Reception Number 256102 of the Eagle County, Colorado records; thence departing said boundary South 57 °21'33" East, 222.39 feet; thence North 84 °40'55" East, 195.00 feet to the point of beginning and containing 0.305 acres, more or less. 4