HomeMy WebLinkAboutAGENDA ITEM SUMMARY - 12/16/2019- HUGHES,STEPHENS,TROXELL-ty oi�
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Ethics Review Board Meeting
CIC Conference Room
City Hall (300 Laporte Avenue)
December 16, 2019
3:00 p.m.
City Attorney's Office
300 Laporte AvellUe
PO Box 580
Fort Cdfins, CO 80�522
970.221,6520
9M221-6327
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1. Selection of Presiding Officer for Alternate Ethics Review Board as it. considers
the pending complaints.
2. Review and Approval of the July 29, 2019 Minutes of the Ethics Review Board.
3. Consider in accordance with City Code Section 2-569(d)(l ) whether a complaint
filed on November 14, 2019, by Nicolas Murphy Frey and Mary Satterfield Grant,
alleging that Mayor Wade Troxell has as financial interest and a personal interest
in the FILI-hes Stadium annexation property rezoning decision, warrants
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investigation.
4. Consider in accordance with City Code Section 2-569(d)(1) 'whether a complaint
filed on November 14, 2019, by Nicolas Murphy Frey and Mary Satterfield Grant,
alleging that Mayor Pro Tern Kristin Stephens has as financial interest and a
personal interest in the Hughes Stadium annexation property rezoning decision,
warrants investigation.
5. Consider in accordance with City Code Section2-569(d)(1) whether the
additional complaint filed by Gordon Hadfield, Esq., oil behalf of Amy Satterfield
Grant, alleging that Mayor Wade Troxell has a con] : liet of interestin the HUohCS
Stadiurn annexation property rezoning decision in light of National Association of
Realtors Fund campaign activities in 2017 warrants investigation.
6. Other BLIsiness.
7. Adjournment.
City of
rt Collins
New
City Attorney's Office
300 Laporte Avenue
PO Box 580
IFort CoMins, CO 80522
970.2211,652!0
970.221 M27
fcgov Corn
Notice is hereby given that the City Council Ethics Review Board will meet on Monday,
December 16, 2019, at 3:00 p.m., in the City Hall's CIC Conference Room, located at 300
Laporte Avenue, City Hall West, Fort Collins, Colorado. The purpose of the meeting will be to
diSCUSS and address the following agL�enda items:
1. Selection of Presiding Officer for Alternate Ethic,Review Board as it. considers
the pending complaints.
2. Review and approval of the July 29, 2019, Minutes of the Ethics Review Board.
3. Consider in accordance with City Code Section 2-569(d)�(1) whether a complaint
filed oil November 14, 2019, by Nicolas Murphy Frey and Mary Satterfield Grant,
alleging that Mayor Wade Troxell has a I . inancial interest and a personal interest
in the Hughes Stadium annexation property rezoning decision, warrants,
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investigation.
4. Consider in accordance with City Code Section 2-569(d)(1) whether a complaint
filed on November 14, 2019, by Nicolas Murphy Frey and Mary Satterfield Grant,
alleging that Mayor Pro 'rem Kristin Stephens has a financial interest and as
personal interest in the I-ILIghes Stadium annexation property rezoning decision,
warrants investigation.
5. Consider the Supplemental Information for City of Fort Collins Ethics Review
Board SUbill.itted by Gordon Hadfield, Esq., on behalf of Amy Satterfield Grant.
This supplemental information alleges a possible new complaint against Mayor
Wade Troxell regarding the National Association of Realtors Fund campaign
contributions in 2017 Outlining a potential conflict of interest in tile Hughes
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Stadium property rezoning decision.
6. Other Business.
7. Adjournment.
As the majority of Council may attend this meeting, the meeting is also being regarded as
a meeting of the City Council for the purposes of this notice.
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The City of Fort Collins will make reasonable accommodations for access to City
services, programs, and activities and will make special communication arrangements for
persons with disabilities. Please contact the City Attorney's Office to arrange for such services
at 970-22 1-6520 or ct(:)tidi-iiiii(4)fcgov.cotti. ALIxiliary aids and services are available for persons
with disabilities. VrrDD: Dial 711 for Relay Colorado.
Fort Collins City Attorney
Posted: December 12, 2019
(970) 221-6520
Etltiics Review Board Meeting Minutes
July 29, 2019
6:15 1.). m.
Members in Attendance. Board members Ken Summers, Julie Pignataro and Kristin Stephens.
Staff in Attendance: Carrie Daggett, City Attorney; John DLival, Deputy City Attorney; Jeanne
Sanford, Paralegal; Delynn Coldiron, City Clerk
Public in Attendance: Fort Collins citizens Jim Jantee, Lori BrUnSvVig and 3 other unidentified
citizens.
A meeting of' the City Council Ethics Review Board (-Board-) was held on Monday, July 29,
2019, at 6:15 p.m. in the CIC Room, City I-Iall West.
The meeting beoan at 6:15 p.m. The Board reviewed the Agenda which contained the following
items: AAP
1. Review, and Approval of the April 2 1/0" 1 0/ Lites of the Ethics Review Board.
O19, by Christine Pardee. snaking various
2, ("onsider if a complaint filed on f4l
or allegations regarding the cq,,�,,.l t ade Troxell, sufficiently alleges a
j,,ct
m investigated.
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violation of state: or local should be further
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3, Consideration of propos I ise in time foi Ethics Review Board screening of ethics
complaints.
4. Other Business.
5. Adjournment.
Mayor Pro Tern Stephens announced this was an Ethics Review Board Meeting on July 29, 2019
at 6:15 p.m. and after roll call, declared that a qUOITHY1 oNhe Board was present.
Ms. Stephens asked if any members Of*tllC public wished to speak.
Jim Jantee of Dort Collins spoke that his neighborhood action committee received ail email that
Christine Pardee resigned from the Planning & Zoning Board due to alleged harassment by Gino
Carnpana. Ile then discussed that COUnciliricniber Martinez and Mayor Troxell appeared at the
Board. Mr. Jantee asked if serving on boards and commissions was a VOILInteet, situation. He had
concerns that since the Ethics Board doesn't meet often, maybe this matter could get resolved
between parties without this, hearing.
Mayor Pro Terri Stephens ans%vered that board and commission members are volunteers and this
complaint was Brought to the Ethics Review Board.
f�'Ol't Collins C't'Zell Irlori BrUsnw,ig stated even though Christine Pardee was not able to appeal -
tonight, it was clear after talking to her that she experienced intimidation and threats because She
stood in Mayor'Froxell's way of getting what he wanted. Ms. BrUnswig stated she has experienced
Mayor 'Vi,oxelli-etaliatitic,against liei-aswell. She wits here to say that she believes it is not possible
f'or the members of this Ethics Review Board, its much as site respects the positions and abilities
to be fair, to be fair and impartial since they work so closely with Mayor Troxell.
Mayor Pro Tern Stephens then stated the Board would look at the complaint and diSCUSS the
allegations lodged by Ms. Pardee.
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Deputy City Attorney Duval stated lie Would first explain the process. City Code Section 2-569
governs how the Ethics Review Board considers these kinds of coniplaints. The first task is to
review the complaint and facts; the Board now has to decide if the allegations are true and ii'a
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more formal investigation is necessary. Mr. DUval V@ainecl the Board is not here to decide if - a
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violation lags Occurred, but to just decide if a rnol-p ')1. vestigation is warranted. Mr, I)LIVal
advised that the Board has Ms. Parolee's written c Paint, s well as audio of a P&Z work session
where her allegations are directed.
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Mr. Doval then explained the first 111 1" T-111", iecl to the provisions of City Code and speaks,
about discrimination, but it is a litt L Mayor Troxell was at that July 2 meeting and if'
-ought in her complaint to that effiect,
Ms. Pardee was assertim, that. 'I'll A'0 idence N
COLInCilmernber Pignataro stated she rernernbers Participants trying to discuss other things Outside
the appellant land Use code and such discussions were stopped.
it y Attorney Daggett then provided information about what happened at that hearing, Bill
L Whitley asked to speak and Mayor Troxell decided lie was not a party in interest in the SLUIShille
I louse so lie was not allowed to speak.
Deputy City Attorney, Duval stated the second allegition was based on the denial ofdUC process.
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The third allegation was based on the CleStrUCti011 otgovernment operations — Under State statute
—that the Mayor intentionally obstructed the P& Z Board's Function. Deputy City Attorney Duval
stated the referenced statute in the Complaint is actually as state criminal statute SO this WOLdd have
to be referred to the District Attorney and prosecuted by him. Mr. Duval directed the Board that
ZI COPY Ofthilt Statute was in the provided materials.
Mayor Pro Tern Stephen stated this is not in 01.11- purview to consider and Mr. Duval agreed this is
not in our ethics code.
The fourth allegation was discussed ---- obstruction Ot'government operations. Mr. Duval explained
the reficrenccd Code section is contained in Chapter 13, which deals with discrimination in
employment and 11OLISing, and does not relate to this SUI�rject.
The fifth allegation was that Mayor Troxell violated the l"irst Amendment— freedom of'speech.
Mr. Duval explained these are not provisions in tile City Code or State Code offithics. Ms. Pardee
Would need another venue on these types of claims, i,e., a civil lawsuit would have to be brOLIght
in federal Court. This is not the venue to make these decisions oil First Amendment rights.
Mayor Pro Tern Stephens then stated the Board will start with tile first discrimination complaint.
Ms. Stephens explained that having been at that appeal hearing, Councilmernbers and participants
in the appeal can only bring up matters from the record of P&Z meetings and not new material.
l"articipants were held to discussing what was on tile record and that is normal for an appeal; that
is ]low an appeal is conducted.
COLInCilmernber Pignataro discussed that the appeal process is being looked at b COLInCil in
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October. Council wants to make Sure that it is a I'air process For the appellant, since they are not
experts, Ms. Pignataro explained the whole appeals pt9cess will be looked at towards fairness.
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Councilmernber Summers stated it is important tog 01 merit ,,er an appeals hearing is quasi-judicial
process with stringent guidelines and not dissirni a the Ethics Review Board is bound by,
- City Attorney Daggett spoke that the foctomotyfr I lie appeal ptocess will be on eliminating lochs"
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confusion regarding the Code and li low, better. Ms. Daggett explained that she and
City Clerk Coldiron were talking a,, g at the City Clerk's appeal guidelines and how to
make thern 1110re User-friendly. Th tt l to have a Iair appeal hearing which doesn't help/hurt
either side.
Councilmember Summers explained the Mayor is looked at in his role as Chair Of Council. while
lie does have the authority to make determinations, those decisions are not Without tile right of
appeal. ll'we feel he is not acting along guidelines, etc., then any COUnCili-nernber could appeal the
decision ofthe Chair and can overrule the Chair.
COLUICilmeniber Pignataro stated there is a system of checks and balances. Ms. Pignataro further
stated that as we look at allegations against tile Mayor in that context, it is important to Understand
his responsibilities, but note there is accountability as well.
Deputy City Attorney Duval noted in tile rules of procedure, one can overrule tile Mayor oil new,
evidence.
Mayor Pro Tern Stephens did not Feel that Siftiati011 Was relevant in this setting. There was no
personal benefit or gain from the decision. Ms. Stephens then asked, is there Financial or personal
benefit for a decision made? Nis. Stephens did not see this falling under any of those rules and
stated the Ethics Review Board is not a criminal court so we cannot pass judgment can these
allegations. Ms. Stephens asked if there was a violation of state or local ethic rules? That's what
this Board is here to find out. Ms. Stephens stated that none of these allegations fall Under the
category of as Mayor making a decision at as hearing; the City Code and Charter do not apply to
these allegations.
Mayor Pro Tern Stephens discussed the denial of'due process and stated it is not clear what the
complaint is. The allegation is not really related to the state or City ethics provisions cited.
Ms. Stephens then discussed the third allegation - obstruction of' government operations. ']'his
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refers to as state statute which is not part OfOLIr ethics section and is aWtUally as criminal statute. Ms.
Stephens stated the Board does not need to discuss this as it is not part of our purview.
Ms. Stephens stated, aller listening to the audio of the P&Z work session, the Mayor simply
reminded the participants to follow the Land Use Code. Someone on the audio said it was a
but there were no threats, harsh words. etc. Ray Martinez Nvas actLiallyr very
complimentary to the Board and apologized it' that"s kvhat it Sounded like. The Mayor just
reiterated what Ray Martinez said, Ms. Stephens explained it is ]lot unusual to state a reminder on
what is appropriate at a meeting
COUnCili-nember Pignataro described that part of tl, -tinez came
r a ay Mai and Mayor Troxell cat
and talked at the meeting was because many rtiaard Members were abstaining frorn voting
a xplanied that part cif'VOILInteerism is to
which was starting to affect the Board. Ms .
make those tough decisions and that is NY/ ji'dt ay Martinez and the, Mayor were trying to
T/w
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do, vOlich was try
ing to remind the K Ill rs what their Job was.
COLHICilmember Surnmers explained impollant to note that no private meetings happened,
Mr. SUIllniers explained this case hada lot of dynamics and emotions, etc., and it seemed
appropriate to try to give some reassurance, guidance and coaching oil how to approach this issue.
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Mayor Pro Tern Stephens discussed the fourth allegation which cited City Code Section 13-20 but
stated since this Code section applies to 11OLISing and employment, it doesn't apply here.
Deputy City Attorney Duval discussed the fifth item — violation of First Amendment freedom of
speech. The Complaint alleges what was said was chilling and the P&Z board rilenibers, were not
able to render a decision or speak their Minds.
Mr. Duval explained the P&Z Board's decisions are bound by the City's Land Use Code. 'I"his
allegation does not relate to state or City ethics provisions,
Mayor Pro Tern Stephens stated she did not personally see a violation ofFirst Arnenchilent rights.
COLHICilmember Pignataro agreed and stated after listening to the audio, does not see that either.
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Ms. Pardee was listening by phone at the meeting and there was an open discussion in the room,
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there was no stilling or talk. Ms. Pignataro stated there was no intent to stifle and stated this
allegation cannot be tied to a state or City ethics rule.
Mayor Pro Tern Stephens stated she wanted to thank the members of' the public who CaMC out
toniohL. Ms. Stephens, reiterated she did not hear intinlidation Or threats during file P&Z meeting;.
She specifically listed to the audio tape because she was concerned about the allegations and stated
the Board WOUld hold a councilinernber accountable if' threats were made. Ms. Stephens stated
she does not take those allegations lightly bUt does not see evidence ot'discrimination or threats
here.
Deputy City Attorney Duval asked the Board H'they belt ILirther invcstig"Ition was warranted into
the Cornplaint. The Board stated no Further investigations were warranted becaUSC the allegations
do not violate any city or state ethics rules.
COLincilmember Summers then niade a motion that flurther investigation into this ethics corliplaint
is not warranted, COLInCilmernber Pi,,47�nataro seconded the motion. The Board adopted the motion
UnaninIOUSly (3-0). The Board stated this matter was now to be closed.
Next item LIP Ion- discussion was a consideration I lie timcfrarne in which to schedule an
Ethics Review Board rneetino under City Cody Sc
9(d)( I
City Attorney, Carrie Daggett diSCLISSOd, t l* t i" nt tiuneline to schedule Ethics Review Board
meetings. Ms. Daggett explained, the C`ucic aw - cuii-critly, set. tile Ethics Review Board rneetm i,
must be set within 10 days a fter a 1, cores in. and explained this has proven to be very
tough and Unworkable with everyol"I Liles. In addition to setting the meeting, getting the
background materials out and notices sent to the complainant and subJects is also as consideration.
Ms. Daggett stated having more time to accomplish these tasks NVOL11(l be very helpful,
'File Board Unanil-11OLISly recommended modifying the Code language to, "no more than 30 days
unless extenuating Cii rc Li In stances arise, then an extra 14 days WOLIld be allowed after that."
City Attorney Daggett stated She Would dral"t an ordinance t1or the August 20, 2019 Council
meeting Hand WOUld represent in the recitals that the F,"thics Review Board reconin-lended this action.
No other business was discussed.
The meeting adjourned at 7:44 p.in.
Agenda Iten t 3
STAFF
Carrie Daggett, City Attorney
Ingrid Decker, Sr. Assistant City Attorney
SUBJECT
Consideration in accordance with City Code Section 2-569(d)(1) of whether a complaint filed'! on
November 14, 2019, by Nicolas Murphy Frey and Mary Satterfield Grant, alleging that Mayor Wade
Troxell has a financial interest and a personal interest in the Hughes Stadium annexation property
rezoning decision, warrants investigation.
EXECUTIVE SUMMARY
The purpose of this item is to complete the initial screening by the Ethics Review Board of a complaint
filed with the Board under City Code Section 2-569(d), as described below.
STAFF RECOMMENDATION
Staff recommends that the Board consider the Complaint and determine whether to proceed with an
investigation of the Complaint.
BACKGROUND / DISCUSSION
Under City Code Section 2-569(d), any person who believes a Coun,cilmember or board or commission
member has violated any provision of state law or the City Charter or City Code pertaining to ethical
conduct may file a complaint with the City Clerk, After notice to the complaining party and the subject
of the complaint, the Ethics Review Board then considers the complaint and whether it should be
further investigated. A copy of Section 2-569 is provided as an attachment to this Agenda Item
Summary.
The Complaint:
The Board will consider a complaint lodged with the Board through the City Attorney on November
14, 2019, by Nicolas Murphy Frey and Mary Satterfield Grant (the "`Complainants"), two Fort Collins
residents, against Mayor Wade Troxell (as well as against Mayor Pro Tern Kristin Stephens), The
Complaint,is provided in its entirety as an attachment to this Agenda Item Summary, and it alleges
Mayor Wade Troxell has a conflict of interest in the form of a financial interest and a personal
interest in the Hughes Stadium annexation property rezoning decision in light of his employment at
Colorado State University, which owns the property. The following is an excerpt from the Complaint
summarizing Mr. Frey's and Ms. Grant's concern:
Agenda Item 3
As current employees of Colorado State University, Wade Troxell and Kristin Stephens
should not be participating in the decision making process for the re -zoning of the parcel of
land currently owned by Colorado State University located northwest of Overland Trail and
Dixon Canyon Road (the former site of the Hughes Stadium). Each has both personal
interests and financial interests as defined in Article IV, Section, 9 of the City Charter
(EXHIBIT 1) because a reasonably prudent person wouldjudge that Mr. Troxell and Ms.
Stephens would realize a direct and substantial benefit different in kind from that experienced
by the general public. Based on these personal and financial interests in the re -zoning of this
parcel of land, Mr. Troxell and Ms. Stephens should refrain from voting on, attempting to
influence, or otherwise participating in such decision in any manner as an officer or
employee.
Please note,: attached are documents intended to assist the Board in, working through the
various elements of these questions, referred to as "Workbook" and "Flowchart for
Complaint Review".
The Complaint provides argument and description about a number of events and concerns, which,
are identified in the attached Workbook document.
City Ethics Provisions:
Generally, the ethics provisions established by the City include City Charter Article IV, Section 9, and
City Code Section 2-568, These are each attached to this Agenda Item Summary for reference by
the Board.
State Ethics Provisions:
In addition, various state laws are commonly considered ethics laws. These include Sections 24-18
101 through 105, Colorado Revised Statutes, Sections 24-18-201 through 206, Colorado Revised
Statutes, Sections 18-8-302 through 308, Colorado Revised Statutes, and Sections 18-8-402 through
409, Colorado Revised Statutes, all provided as attachments to this Agenda Item Summary.
(The language of Article XXIX of the Colorado constitution — also referred to as "Amendment 41,"
provides that home rule municipalities that have adopted local ethics provisions addressing the
topics in that provision are exempt from its application.)
The Board Determination:
The Board is required under the Code to evaluate the Complaint and determine by majority vote
whether to formally investigate the Complaint. In doing so, the Board should consider:
1. Whether the allegations in the Complaint, if true, would constitute a violation of state or local
ethical rules;
2. The reliabilliy and sufficiency of an facts asserted in support of the allegations; and
3. AnV other facts or circumstances the Board may consider relevant.
If the Board determines that the Complaint does not warrant investigation, the Board then directs
staff to send written notice to the complainant of that determination and the reasoning behind it. A
copy of that notice is also sent to, the subject of the Complaint and the City Council.
IN
Agenda Item 3
Also attached for your reference is Resolution 2014-107, accepting advisory opinion and
recommendation no. 2014-01 of the Ethics Review Board. At that time, then Councilmember Troxell
had requested and advisory opinion regarding whether he would have a conflict of interest in
continuing to participate in Council discussions and, ultimately, Council's vote, regarding the
proposed new Colorado State University football stadium then under discussion. The conclusion at
that time was that: 1) there was no indication that then Councilmember Troxell would receive any
"foreseeable, measurable" financial benefit, so no financial interest was presented; and 2) there was
no indication that his position of employment or the amount of his compensation would be affected
by his vote or Council's decision or actions with regard to the proposed football stadium, so there
was no "direct and substantial gain or detriment to him and no personal interest was presented.
Summary
1. If the Board determines that there is no potential violation of state or local ethics laws
under the facts alleged, the Board should make a motion to that effect that explains
the Board's reasoning, and then vote to make that determination. If the Board makes
this determination, no further action is needed on the Complaint (other than the
provision of notice as required in the Code).
2. If the Board determines that the Complaint states a potential a conflict of interest, then
the Board will need to evaluate whether the facts asserted are reliable and sufficient
enough to support the allegation in the Complaint that a violation occurred, making an
investigation of the Complaint appropriate. The Board may have knowledge of
information that contradicts the asserted facts, or there may be a lack of information
needed to form a.reasonable suspicion that the violation alleged in the Complaint
occurred.
3. If there is additional information available or presented to the Board that leads the
Board to conclude that the Complaint does not merit further investigation, the Board
should identify that information and explain how it affects the Board's decision as to
whether further investigation is warranted.
After the completion of its review of all factors, if it has not already made a determination, the Board
will need to make a motion and vote on whether it has determined that further investigation is
warranted, explaining the reasoning for its decision.
Next Steps:
As noted above, if the Board makes this determination, no further action is needed on the Complaint
(other than the provision of notice as required in the Code).
Alternatively, if the Board determines that further investigation is warranted, staff will suggest a
schedule for next steps for the Board to proceed to that phase of the process. At the end of the
Board's review and investigation, if any, the Board will issue an Ethics Opinion stating the outcome
of its action. The Board's Ethics Opinion is then presented to the City Council for consideration and
possible adoption by resolution.
3
Agenda Iterro 3
ATTACHMENTS
1 . Email (Complaint) from Nicolas Murphy Frey and Mary Satterfield Grant to Delynn Coldiron, City
Clerk, dated November 14, 2019 with Exhibits 1 - 8.
2. City Code Section 2-569
3. City Charter Article IV, Section 9
4. City Code Section 2-568
5. Sections 24-18-101 through 105, Colorado Revised Statutes
6. Sections 24-18-201 through 206, Colorado Revised Statutes,
7. Sections 18-8-302-308, Colorado Revised Statutes
8. Sections 18-8-402-409, Colorado Revised Statutes
9. Workbook for Review of Complaint
10. Flowchart for Complaint Review
11, Resolution 2014-107, Accepting Advisory Opinion and Recommendation No. 2014-01 of the Ethics
Review Board
giq; q1l11!11llll1F1l: I 1 11 q'iri 1p1111!ll�!!!l1111 I
Mary Safterflfield Grant
Phone: (703) 969-9555
COMPLAINEES
Wade O.Troxell
Mayor, City of Fort Collins
Associate Protessoir, Mqchanleal Engineering, Colorado1 f iUniversity
Director, Center for Networked Distflbuted Energy, Colorado State Universtty
Director, RamLab, Colorado State University
812 Rochelle Circle
Fort Collins, CO 80526
Phone: (970) 219-8940
Kiistin Stephens
Council Member, City of Fort Collins
Graduate Coordinator, Diepartm,ent of Statistics, Colorado State University
Program Assistant 11, Department of, Statistics, Colorado State University
1911 Enfield Court
Fort Wins, CO 805216
Phone: (970) 581-7580
RECEIVED
Ot/ Ck�rk"s Office
ALLEGATIONS
As current employees of Colorado State University, Wade Troxell and Kristin Stephens should
not be participating in the decision making process for the re -zoning of the parcel of land
currently owned by Colorado State University located northwest of Overland Trail and Dixon
Canyon Road (the former site of the Hughes Stadium). Each has both personal interests and
financial interests as defined in Article IV, Section 9 of the City Charter (EXHIBIT 1) because a
reasonably prudent person would judge that Mr. Troxell and Ms. Stephens would realize a
direct and substantial benefit different In kind from that experienced by the general public.
Based on these personal and financial Interests In the re -zoning of this parcel of land, Mr.
Troxell and Ms. Stephens should refrain from voting on, attempting to influence, or
otherwise participating in such decision In any manner as an officer or employee.
(1) Wade Troxell and Kristin Stephens are currently and gainfully employed by Colorado State
University. Mr. Troxell is an Associate Professor in the Mechanical Engineering department as
well as the director of the Center for Networked Distributed Energy and RamLab (EXHIBIT 2).
Ms. Stephens is the Graduate Coordinator of the Department of Statistics and Program
Assistant II in the Department of Statistics (EXHIBIT 3).
(2) Colorado State University is the owner of a parcel of land located northwest of the
intersection of South Overland Trail and Dixon Canyon Road, the former site of the Hughes
Stadium.
(3) The University is attempting to sell this land to a developer (Mannar Homes) via a Purchase
Agreement (EXHIBIT 4).
(4) The Purchase Agreement in place specifically states an "Additional Purchase Price" for
every housing unit sold on the parcel of land, thus incentivizing CSU to achieve the highest
zoning density possible for the developer to gain the highest sale price for said land parcel
(EXHIBIT 4 won 15a))
(5) The Purchase Agreement in place specifically enumerates a "Preliminary Entitlement
Confirmation" that allows the buyer, Lennar Homes, to walk away from the Purchase
Agreement as well as be reimbursed for all cart -of -pocket expenses incurred during its effort to
achieve the minimum number of 600 lots zoned for development on the parcel (EXHIBIT 4
[Section 4d])
(6) The gainful employment of Mr. Troxell and Ms. Stephens at Colorado State University is
based in part on the University's financial health, which causes them to have a personal
interest In the University's ability to profit from decisions they make while in office.
(7) Specifically Mr. Troxell possess a financial interest in the re -zoning decision being made
concerning the former Hughes Stadium site —the ability to attract top students In mechanical
engineering, develop technologies in the two labs of which he is the director, and potentially
bring these technologies to market hinges on the University's ability to fund these labs and
capital -intensive projects which they undertake.
(8) Mr. Troxell has specifically enumerated his desire to bring University technologies to market
while he is both Mayor of Fort Collins and Associate Professor in the Mechanical Engineering
Department: "I focus on expanding the research enterprise in the College of Engineering and
linking these efforts to technology transfer, startup companies, strategic industry partnerships,
government relationships and technology -based economic consortia." (EXHIBIT 5)
GOVERNING LAW
The financial success of any business is a key concern of its employees. A financially healthy
business provides job stability, improved benefits, increased financial compensation, and
generally has a greater ability to ensure a positive work environment.
Wade Troxell and Kristin Stephens have a direct personal interest in the financial health of CSU
as their primary employer. There Is no plausible argument to the contrary.
Whether or not this personal Interest In the financial health of CSU constitutes a conflict
of lnteres4 as enumerated In Article IV, Section 9 of the City Charter, Is determined by the
judgement of a reasonably prudent person that an officer of the government would
realize a direct (1) and substantial (2) benefit different In kind from that experienced by
the general public (3). 1 will break this litmus test down into its components and show that
each is satisfied by the current situation in which we find Mr. Troxell and Ms. Stephens.
(1) DIRECT - we see that employees of businesses which have significant financial resources,
especially those in the non-profit sector (which CSU is), generally distribute those funds in
the form of investments in capital and labor. The former may be in the form of improved
facilities, upgraded laboratories, new technology, Improved office spaces, entirely new
buildings for residential and commercial purposes, and the like. The latter may be in the
form of employee benefits, increased compensation, recruitment of high-level employees,
Increased numbers of assistants, additional support staff and grounds keepers, and the
like. All of these potential investments in capital and labor improve the quality of fife of
employees, in a very direct manner.
(2) SUBSTANTIAL - According to the Office of Budgets of CSU, the University spent
$36,093,716 on all line Items within "Education and General Research" in 2017-18 and
estimates it will spend just $24,904,798 in the following 2018-19 year (EXHIBIT 6 (page 3v.
This is a drop of 31.0% from one year to the next, and directly impacts all research
activities at the University --an area of the University in which Mr. Troxell is deeply involved.
The successful sale of the Hughes Stadium parcel would almost completely erase that
deficit, just based on the "base price" of $10M that can be read in the portion of the
purchase agreement which has not been redacted.
(3) GENERAL PUBLIC - as described above, the general public, not being employees of
Colorado State University, would not share In, depend upon, nor benefit from the revenue
Increase CSU would realize with a successful sale of the Hughes Stadium parcel to Lennar
Homes based on its Purchase Agreement.
ANALYSIS
To further elucidate the situation and possible outcomes, I will describe two mutually
exclusive scenarios and show the substantial economic difference between them for CSU,
and then connect this difference with possible difference in financial outcomes for areas of
CSU In which Mc Troxel and Ms. Stephens are involved.
SCENARIO 1 - Purchase Agreement Executed
Hughes Stadium parcel is successfully sold to Lennar Homes with at least 650 units of density
(this would be described by the 1/2 RF and 1/2 LMN re -zoning which Mr. Troxel and Ms.
Stephens voted In favor of at the City Council meeting on 11/11/19).
1/2 RF zoning allows for 81 acres of the 161 total to be developed at a maximum density of
one unit per acre, meaning 81 lots total. 1/2 LMN zoning allows for a maximum density of 9
units per acre, or 720 units, erring on the more conservative approach of granting the "odd
acre" In the 161 acres to the less -dense zoning classification. That is a total of 801 units of
housing possible with 1/2 RF clustered and 1/2 LMN.
In this hypothetical scenario, the Purchase Agreement In place for the land would result in
Lennar Homes paying $10M to CSU as a "base rate", another $16,000 per additional lot above
625 up to a total additional of $400,000, and an "Additional Purchase Price" (APP) for every
single Home which is sold to a Homebuyer. That equates to $10,400,000 + APP as a total sale
price.
The APP has been redacted, but with some rudimentary calculations, one may estimate it
conservatively as follows: with a parcel containing 650 lots at a total value of $10,400,000,
each lot is priced at an average of $16,000. This is the exact additional price to be conveyed
for each home above 625, or to be subtracted for each home under 625—so we have a
logically established "base lot rate" of $16,000. With 161 acres, and assuming clustering and
increased demands for open space and drainage —estimating with a worst -case scenario of
smallest lot size for lowest assumed price —we have a likely 100 acres of land within Hughes
which is devoted specifically to private home plots. That means an average of 0.15 acres per
home, or more likely many homes with 0.25-0.3 acre plots and many mufti -family homes with
similar acreage but two to four units on each.
Luxury lots (0.5 acres and up, with comparable neighboring homes valued at over $800,000)
are few and far between in Fort Collins. With research done on ZUlow and using their
"Zestimate" calculation, one can determine that most buildable lots of this variety are around
$250,000 each. Because the tots In the Hughes site w411 be much smaller, but in a pristine and
highly desirable area, one may heavily discount the lot size but assume it generally scales with
that type of $/acre. While real estate professionals will agree that a lot half the size is never half
the cost —it is generally 2/3 of the cost —we will again be conservative in our estimation and
say that the price scales directly with the acreage.
That means that luxury -located land In Fort Collins, similar to that of Hughes —with high -end
neighborhoods The Ponds and Bella Vra located directly to the north —generally sells for about
$400,000 per acre. If we look at an average of 0.15 acre per lot, that equates to $60,000
per lot —much greater than the $16,000 per lot "base rate" which is visible within the
Purchase Agreement, and makes a reasonable person believe that the APP is at least as
much as the base rate, and possibly significantly more.
As a real estate professional, I would estimate the average sale price per lot at $30,000 to
$50,000, since the developer would be required to place improvements, roads, etc. The
calculations above speak to a very significant APP, and the critical reason this matters is
that the DENSITY of the land —the potential total number of lots that may be developed —
very directly and substantially affects the net revenue CSU will realize In its Purchase
Agreement. CSU's total revenue from Lennar for 650 built and sold homes would be over
$20,000,000 and possibly over $30,000,000 based on its Purchase Agreement.
SCENARIO? 2 - Purchase Agreement Withdrawn
Hughes Stadium parcel is zoned entirely RF, which allows for a maximum of 161 units of
density based on Fort Collins Land Use Code 4.3 (E) (2) (b) assuming maximum density based
on a "clustered" development stvle and no more than one unit oer cross acre of land.
In this scenario, assuming the Purchase Agreement would remain in force, CSU would earn
$10,000,000 bass rate MINUS $400,000 for the lower total number of plots (25 lots less than
625 multiplied by $16,000 each), and then an APP of 161 lots multiplied by an APP that we
have estimated above at $14,000 to $34,000.
Assuming the best possible scenario for CSU in this case, and also assuming that Lennar
would not back out of the Purchase Agreement as It Is specifically entitled to if the zoning
density allowed is less than 600 total units, we calculate a MAXIMUM possible estimated
revenue of just over $15,000,000. This aggregate revenue number is at least 25% less, and
more likely closer to half, of the total revenue CSU would achieve with the higher density partial
LMN zoning that was voted for by Mr. Troxell and Ms. Stephens on 11/11/19.
To be sure, however —the actual revenue number achieved would be $0.
This Is because Lennar Homes, officially the second largest home construction company In the
United States (according to trade publication b it ercm's 2019 ranking "Builder 100 List"), is
not in the business of creating luxury homes. Based on a $15,000,000 sale price to CSU,
Lennar would be looking at a price of almost $100,000 per plot of land --a very high price for
unimproved land with no roadways or utilities. This kind of per -plot land price for a builder
means that every home constructed would be well over $500,000 to break even, and more
likely closer to $1,000,000 per home.
In the current market, and looking at the high -end average home prices in the 80526 zip code
of Fort Collins, achieving success at scale with that many homes and those prices would be
very unlikely. It's also an endeavor which has no precedent for Lennar Homes in Colorado. Its
numerous developments can be found up and down the Front Range, and generally look as
most peopie imagine dense new -home developments do: tightly packed large homes on small
land parcels, all facing each other, with little desire to capture the unique aspects of land next
to mountains, topography that creates expansive views, or other "luxury features" that are
more likely found in custom homes.
These home developments are the bread and butter of developers like Lennar, and its
contract with CSU Is not subtle in its desire for maximum density. The listed 'hurdle
rate", or the rate at which the contract may be voided without penaffty, Is 600 homes —
this number is almost four times greater than the maximum density allowed by 100% RF
zoning, and would surely cause the Purchase Agreement to fall through ... a disastrous
outcome for the financial health of CSU.
As these two scenarios show, CSU stands to profit greatly from the sale of the property to
Lennar with density allocations of over 650 homes, or lose greatly after the failure of a
Purchase Agreement in which much time and energy has been invested. This is not to mention
the fact that a failure of the Purchase Agreement would likely make the land more difficult to
sell to another large developer for the same price premium ... and increase the likelihood that
CSU is left looking for a buyer for an extended period of time and at a reduced price.
FINANCIAL RELATIONSHIP
Mr. Troxell is the head of both the RamLab and the Center for Networked Distributed Energy at
Colorado State University. As such, he has a financial interest in the money CSU spends on in-
house research, as well as the staff it can devote to supporting grant writing and administrative
activities which all labs must perform.
Mr. Troxell has a history of using CSU as an incubator to help identify and support new
technologies. At the Manufacturing Excellence Center, Mr. Troxell helped bring these
technologies to market. In Mr. Troxell's own words: "He co-founded and directed the
Manufacturing Excellence Center (MEC) at Colorado State University for 10 years. MEC was a
consortium of 41 laboratories and centers focused on improving the competitiveness and
profitability of small to medium-sized manufacturers in Colorado." (EXHIBIT 2)
Ms. Stephens acts as the Graduate Coordinator of CSU's Department of Statistics in its
Graduate School (EXHIBIT 3) and deals with "administration of National Science Foundation
Grant funding" (EXHIBIT 7). In her role as Academic Contact and Admissions Contact within
the CSU Graduate School's Statistics Department (EXHIBIT 8), her goal is to attract the
highest quality students seeking advanced math degrees. The pursuit of that goal is strongly
facilitated by offering the most compelling benefits packages to highly qualified applicants who
may otherwise be looking at more elite universities.
This logical extension of incentives strikes at the heart of her conflict of interest: Ms. Stephens'
job performance and, logically, security and compensation, is strongly tied to CSU's financial
ability to attract and retain the highest level of graduate students.
CSU's research budget is anticipated to drop very significantly in both percentage terms and
gross dollar terms, in an amount that Is roughly equivalent to the value of CSU's Purchase
Agreement with Lennar Homes. While this is just one fiscal year, the value to CSU of the
former Hughes Stadium site should not be underestimated. The majority (79.6%) of CSU's
revenue comes in the form of tuition (EXHIBIT 6 [page 13D and therefore can only increase at
general market rates. The other 20.4% of its revenue equates to a total of $83,689,592
(2017-18 ACTUAL) and is projected to drop to $63,890,847 (2018-19 ESTIMATE). That means
a Hughes land sale would increase non -tuition revenue by possibly 30% to 50%, and would —
by my estimates —entirely make up for the projected decreases in revenue for the University.
The fall in CSU's revenue is almost exactly the some amount as the projected decrease in
overall research funding —a direct correlation and causal relationship which cannot be
Ignored. Research funding is the first to get cut when revenue drops, as the majority of
CSU's function is tuition instruction.
CONCLUSION
It Is impossible for any employee of CSU, also In a governmental position of authority, to
decide impartially and without bias upon a re -zoning which might cause their employer
to lose upwards of $20,000,000. The personal and financial conflicts of Mr. Troxell and
Ms. Stephens, as employees of CSU, are too great to Ignore.
Based upon the aforementioned facts and analysis presented to the Ethics Review Board, I
respectfully request that my claims of financial and personal conflicts of Interest regarding Mr.
Troxell and Ms. Stephens, in relation to the re -zoning of the former site of the Hughes Stadium,
be investigated fully.
I have asserted that a reasonably prudent person would judge that both Complainees would
receive some direct and substantial benefit or detriment different in kind from that experienced
by the general public depending upon their decision in this re -zoning matter. If the Board
agrees with my assertions and finds sufficient evidence that a (number of) conflict(s) of Interest
exist(s), I respectfully request that they issue an Ethics Opinion to the City Council stating this
and allow time for consideration.
While these allegations are being investigated, I respectfully request a delay In the
Council's second reading of the re -zoning matter relating to the former Hughes Stadium
site. Without proper guidance from the Ethics Review Board, a final vote from the City Council
and Mayor could have a shadow of suspicion and doubt cast over it by the general public's
belief that allegations of conflicts of interest were not addressed in the proper manner.
As Wade Troxell stated in the press release from February 10th, 2015 announcing his intent to
run for Mayor, "Narrow ideology without facing real issues won't help us move forward toward
a vibrant future for all In our community." I believe that Fort Collins' elected officials are able to
face the very real issues I have enumerated.
Respectfully submitted to the Ethics Review Board this fourteenth day of November, 2019.
Nicolas Murphy Frey
A" X
Mary Satterfield Grant
Fort Collins, CO Municipal Code Exhibit I
11A31`19,10:06 PM
Section 9. - Conflicts of Interest.
(a) Definitions. For purposes of construction of this Section 9, the following words and
phrases shall have the following meanings:
Business means a corporation, partnership, sole proprietorship, firm, enterprise, franchise,
association, organization, self-employed individual, holding company, joint stock company,
receivership, trust, activity or entity.
Financial interest means any Interest equated with money or its equivalent. Financial
interestshall not include:
(1) the interest that an officer, employee or relative has as an employee of a business, or
as a holder of an ownership interest in such business, in a decision of any public
body, when the decision financially benefits or otherwise affects such business but
entails no foreseeable, measurable financial benefit to the officer, employee or
relative;
(2) the interest that an officer, employee or relative has as a nonsalaried officer or
member of a nonprofit corporation or association or of an educational, religious,
charitable, fraternal or civic organization in the holdings of such corporation,
association or organization;
(3) the interest that an officer, employee or relative has as a recipient of public services
when such services are generally provided by the city on the same terms and
conditions to all similarly situated citizens, regardless of whether such recipient is an
officer, employee or relative;
(4) the interest that an officer, employee or relative has as a recipient of a commercially
reasonable loan made in the ordinary course of business by a lending institution, in
such lending institution;
(5) the interest that an officer, employee or relative has as a shareholder In a mutual or
common investment fund in the holdings of such fund unless the shareholder
actively participates in the management of such fund;
(6) the interest that an officer, employee or relative has as a policyholder in an
insurance company, a depositor in a duly established savings association or bank, or
a similar interest -holder, unless the discretionary act of such person, as an officer or
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Fort Collins, CO Municipal Code 11/13119, 10:06 PM
employee, could immediately, definitely and measurably affect the value of such
policy, deposit or similar interest,
(7) the interest that an officer, employee or relative has as an owner of government -
issued securities unless the discretionary act of such owner, as an officer or
employee, could immediately, definitely and measurably affect the value of such
securities, or
(8) the interest that an officer or employee has in the compensation received from the
city for personal services provided to the city as an officer or employee.
officer or employee means any person holding a position by election, appointment or
employment in the service of the city, whether part-time or full-time, including a member of
any authority, board, committee or commission of the city, other than an authority that is:
(1) established under the provisions of the Colorado Revised Statutes;
(2) governed by state statutory rules of ethical conduct; and
(3) expressly exempted from the provisions of this Article by ordinance of the Council,
Personal Interest means any interest (other than a financial interest) by reason of which an
officer or employee, or a relative of such officer or employee, would, in the judgment of a
reasonably prudent person, realize or experience some direct and substantial benefit or
detriment different In kind from that experienced by the general public. Personal interest
shall not Include%
(1) the interest that an officer, employee or relative has as a member of a board,
commission, committee, or authority of another governmental entity or of a
nonprofit corporation or association or of an educational, religious, charitable,
fraternal, or civic organization;
(2) the interest that an officer, employee or relative has in the receipt of public services
when such services are generally provided by the city on the same terms and
conditions to all similarly situated citizens; or
(3) the interest that an officer or employee has in the compensation, benefits, or terms
and conditions of his or her employment with the city.
Public body means the Council or any authority, board, committee, commission, service
area, department or office of the city.
about:biank Page 2 of 4
Fort Collins, CO Municipal Code
11/13/19, 10:06 PM
Relative means the spouse or minor child of the officer or employee, any person claimed by
the officer or employee as a dependent for income tax purposes, or any person residing in
and sharing with the officer or employee the expenses of the household.
(b) Rules of conduct concerning conflicts of interest.
(1) Sales to the city. No officer or employee, or relative of such officer or employee,
shall have a financial interest in the sale to the city of any real or personal property,
equipment, material, supplies or services, except personal services provided to the
city as an officer or employee, if:
a. such officer or employee is a member of the Council;
b. such officer or employee exercises, directly or indirectly, any decision -making
authority on behalf of the city concerning such sale; or
c. in the case of services, such officer or employee exercises any supervisory
authority in his or her role as a city officer or employee over the services to be
rendered to the city.
(2) Purchases from the city. No officer, employee or relative shall, directly or indirectly,
purchase any real or personal property from the city, except such property as is
offered for sale at an established price, and not by bid or auction, on the same terms
and conditions as to all members of the general public.
(3) Interests in other decisions. Any officer or employee who has, or whose relative has,
a financial or personal interest in any decision of any public body of which he or she
is a member or to which he or she makes recommendations, shall, upon discovery
thereof, disclose such interest in the official records of the city in the manner
prescribed in subsection (4) hereof, and shall refrain from voting on, attempting to
Influence, or otherwise participating in such decision in any manner as an officer or
employee.
(4) Disclosure procedure. If any officer or employee has any financial or personal
Interest requiring disclosure under subsection (3) of this section, such person shall
immediately upon discovery thereof declare such interest by delivering a written
statement to the City Clerk, with copies to the City Manager and, If applicable, to the
chairperson of the public body of which such person is a member, which statement
shall contain the name of the officer or employee, the office or position held with the
city by such person, and the nature of the interest. If said officer or employee shall
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Fort Collins, CO Municipal Code 11113119,10:06 PM
discover such financial or personal interest during the course of a meeting or in such
other circumstance as to render it practically impossible to deliver such written
statement prior to action upon the matter in question, said officer or employee shall
Immediately declare such interest by giving oral notice to all present, including a
description of the nature of the interest.
(5) Violations. Any contract made in violation of this Section shall be voidable by the
city. If voided within one (1) year of the date of execution thereof, the party obtaining
payment by reason of such contract shall, if required by the city, forthwith return to
the city all or any designated portion of the monies received by such individual from
the city by reason of said contract, together with interest at the lawful maximum rate
for interest on judgments.
(Res. No. 71-12, 2-11-71, approved, election 4-6-71; Ord. No. 155,1988,12-20-88, approved, election 3-7-
89, Ord. No.10, 1997, § 1, 2-4-97, approved, election 4-8-97; Ord. No. 22, 2001, § 2, 2-20-01, approved,
election 4-3-01; Ord. No. 003, 2017 . § 2,1-17-17, approved, election 4-4-17)
ebout:biank Page 4 of 4
Wade Troxell
Mayor, City of Fort Collins, Colorado
Dr. Troxell is on the faculty in the Department of Mechanical
Engineering. He is the past Associate Dean for Research and
Economic Devellopment for the College of Engineering at Colorado
State University. Fie is a Fellow of the Auteri Society of
Mechanical Engineers (ASME) and currently serves as the mayor of
the City of Fort Collins,
Dr. Troxeli is an internationally recognized expert in the areas of
intelligent robotics and intelligent control of distributed systerns, For
his current research, he is Director of the Robotics and Autonomous
Machines Laboratory (Ramt-ab) and the Center for Networked
Distributed Energy ( let Energy),
Dr. Troxell has been involved in start-up enterprises and Colorado -
based small to medium-sized manufacturing companies. He
co-founded and directed the Manufacturing Excellence Center
(MEC) at Colorado State University for 10 years. MEC was a
consortium of 41 laboratories and center's focused on improving
the (competitiveness and profitabiliby of small to medium-sized
manufacturers in Colorado., He C040Unded Sixth Dimension, ]nc., a
provider of network communications and real-time control technology
for the electric power industry, As President/COO, he led this eady-
stagied company through three rounds of venture financing totaling
over $18 rnillion involving some of the top U.S. venture capital firms.
He left Sixth Dimension when it was acquired by Co,niverge, Inc in
2002 Cornveirge went public in 2007
Dr, rroxell received his BS degree in Engineering Science in
1980 ' and his MS and Ph,[), degrees in Mechanical Engineering at
Colorado State University in 1982 and 1987 respectively, After he
completed his doctorate, he was a NATO Postdoctoral Fellow in the
Department of Artificial intelligence (Al') at Edinburgh University for
1987 to 1988,
Page 1 of 3
Experience
City of Fort Collins
Mayor
2015 - Present
Fort Colllins, Colorado
Served as City Council member, District 4, from April 2007 to April 2015.
Colorado State University
Associate Department Head for Development and Engagement,
Mechanical Engineering
1985 - Present
Fort Collins, Colorado Area
Colorado State University
Associate Dean for Research and Economic Development, College of
Engineering
2004 - December 2014 (10 years)
Fort Collins, Colorado Area
American Society of Mechanical Engineers
Past Senior VP - Knowledge and Community
2004 - 2007 (3 years)
Sixth Dimension
President/COO
1997 - December 2001 (4 years)
Fort Collins. Colorado Area
Education
HBx I Harvard Business School
Bloomberg Harvard City Leadershp Initiative - (2017 - 2018)
Colorado State University
BS, Engineering Science - (1975 - 1980)
Colorado State University
Page 2 of 3
Master's Degree, Mechanical Engineering
Colorado State University
Doctor of Philosophy (Ph.D.), Mechanical Engineering
The University of Edinburgh
NATO Postdoctoral Fellowship, Artificial Intelligence
Page 3 of 3
Kristin Stephens
Mayor Fero ""ern` ity Councilmernber at City of Fort Collins
Experience
City of Fort Collins
Mayor Pro Tem/City COUncilrn ember
April 2019 - Present
- Set the City Council Agenda as a member of the Leadership Planning Team
- Preside over meetings when the mayor is absent.
- Serve as Chair of the Poudre Fire Authority, and Chair of the EthJGS Revlew
Board, Member of the Ad Floc Total Compensation Committee, and liaison to
the CDBG,, Retirement Committee, Transportafion Board and Youth Board.
Serve on the National League of Cities Human Development Committee.
- Appointed to serve as the Ciby's representative to the North Front Range
Metropolitan Planning Organization, and the North 1-25 Coalition. Work on
pGanniing and funding of regional transportation projects,
Colorado State University
Graduate Coordinator- Dept of Statistics
September 2011 - Present
Poudre Fire Authority
Chair
August 2019 - Present
City of Fort Collins
City Councilmemb�er
April 2015 - AprH 2019 (4 years I month)
Elected on April 7, 2015.
Vice Chair of Poudre Fire Authority, Futures Committee, Ethics Committee,
Liaison to CDBG, Women's Comm�issuon, Art in Public Places, Parking
Advisory Board. Chair of Election Code Committee
Colorado State University- Department of Statisics and Department
of Mathematics
Statistics Assistant/Grant Coordinator
92�
September 2006 - September 2011 (5 years 1 month)
Youth Orchestra of the Rockies
Executive Director
2005 - 2006 (1 year)
Planned and coordinated all auditions, rehearsals, and performances for
Youth Orchestra and Junior Strings. Created public relations materials
including fliers, posters, mailings and advertisements. Responsible for
fundraising including silent auction, direct mail and grant writing.
Colorado State University
Manager-CSU Bookstore
1998 - 2000 (2 years)
Barnes & Noble
Assistant Manager
1995 -1998 (3 years)
Stone Lion Bookstore
Manager
1990 -1995 (5 years)
Hunter's Books
Manager
1989 -1990 (1 year)
Pasadena, CA
Education
Colorado State University
BA, History - (1995)
Page 2 of 2
Exhibit 4
PURCHASE ANQ,,�ALE 8QEE.ENIf.,'.N-r
(Hughes Stadium Redevelopment)
Tf IIS PURCHASE AND SALE AGREEMENT (this "Agreement"), the Effective Date of which is
January_3 1 2019, is entered into by the STATE BOARD OF AGRICUINURE OF Col...ORADO,
now known ap, the BOARD OF GOVERNORS OF THE GOLORADO STATE UNIVERSITY
SYSTEM, acting by and through COL.ORAF)O STATE UNIVERSITY ("Seller") and LENNAR
COLORADO, LLC, as Colorado limited liability company ("Buyer"). Buyer and Seller will
sometimes be referred to herein individually as a "Paity" or together as "Parties").
Lt r�.Q=A —,';
.. Seller is the ovarer of that certain real property located at 2011 1 South Overland
Trail, Fort Collins, Colorado, which was formerly ffie location of Hughes Stadium (the
"Property").
B. Seller swishes to sell to Buyer die Property and Buyer wishes to purchase: from
Seller the Property, upon the terms and conditions hcriuinafter set forth,
NOW THEREFORL3, in cotisideration of the foregoing recitals, which forma as substantive
part of this Agreement, and Of the premises and the mutual covenants and agreentent ofthe Parties
set forth in this Agreement, the receipt said sufficiency of which are hereby acknowledged. Buyer
arid Seller do hereby agree as follows:
1. JLI�,&nj UiA..5, Capitalized terms that are not defined when first Used in this
Agreernerit have the rneanings set forth below.
(b) Addjjjg=Ljjdg_MaLtU: As defined in Section 6(g).
(c) AffiliaW As defined in Section 18(d).
(d) &,.LhgjrjLu,: All federal, state and local governmental and
quasigovernmental agencies, bodies, entities, boards and
authorities that have jurisdiction over the Property, the
furnishing of utilities or other services to the Property, or
the subdivision, improvement, development, occupancy,
sale or use of the Property.
(e) None
(D F Luyges k t LIO ent Costs: As defined in Section 3(d).
jkL 3-2-
(g) Burver's !ntttlement Work Product: As defined in Section 4(d).
f &'City of Fon Collins.
1857N5.2
(i) Closing: The act of settlement of the purchase and sale of the Lots at which Seller conveys title
to Buyer by delivery of a deed and Buyer delivers the Purchase Price to Seller. The Parties
contemplate that there will be one Closing. , r
O) Closing Date:As defined in Section 5(a).
(k) Commitment: As defined in Section 6(a).
(I)Confidentipl Information: As defined in Section 17(a).
(tn) CORA: As defined in Section 17(c).
(n) Deposit: Two Hundred and Fifty Thousand Dollars ($250,000.00), as more particularly
specified in Section 3(a).
(o) Disclosing Party: As defined in Section 7(a).
(p) Pistrict•. As defined in Section 4(g).
(9) Documents; As defined in Section 4(c).
(r) Effective Date: The date on which both Parties have delivered to the other a fully executed
original of this Agreement. The Effective Date shall be� filled in above upon establishment
of the Effective Date.
(s) Escrow AUM or Title Comnanv: Fidelity National Title Company, 3500 John F. Kennedy
Pkwy., Ste. 100, Fort Collins, co 80525.
(t)Existing Survev: As defined in Section 6(e).
(u) Period: The period beginning on the Effective Date and expiring on 5:00 p.m. MDT, on the
ninetieth (90th).day after the Effective Date.
(v) Fipgncial Records: As defined in Section 15(d).
(w) Fjnat PI : As defined in Section 4(e).
(x) • Home: The home types that Buyer intends to build on the Lots.
(y) indemnifi Party: As defined in Section 4(c).
(z) Initial Concept Plan: Buyer's initial concept plan for development of the Hughes
Subdivision as set forth in the Response to Hughes Stadium Master Developer RFP dated
June 8, 2018.
(aa) Initial Title Materi*.e As defined in Section 6(a).
(bb) Lgga1 Requirements: The rules, regulations, laws, ordinances, standards, approved plans
and other requirements of the Authorities'
(cc) Noe er or QMdit: As defined in Section 3(a).
2
(dd) WE: A proposed number Of six hundred twenty-five (625) lots, which may be increased or
decreased pursuant to the Final Plat as described herein, to be developed as townhomes,
paired homes and detached single family residences.
(ee) Material Event Termination Notice: As defined in Section 7.
00 Mqxi=m Seller Liability: As defined in Section 14(b)
(gg) N91 E 4. As defined in Section 15(b).
(hh)Outside Closine pate: 5:00 p.m. MDT, October 30, 2020, at which time
this Agreement shall automatically terminate if Closing has not been
consummated before such time. Upon such termination, the Parties
shall have such rights and responsibilities as are otherwise set forth
in this Agreement.
(ii) Permitted Exceptions: As defined in Section 6(h).
(bPrelirninary Entitlement Confirmation: As defined in Section
(kk) Preliminary Entitlement Confirmation Deadline: As defined in
Section 4(d):
(1 l) PrelimjaM Entitlement Reimbursarneni: As defined in Section
4(d).
(mm) ProiectApprovals: As defined in Section 4(e).
(nn) EssLAppaegLE.&.iQd: As,defined in Section 40.
(00) Wiect Documents: As defined in Section 4(e).
(pp) Pro e : The parcel of real prt.operty currently containing
approximately one hundred sixty-one (161) acres located at 201 1
South Overland Trail, City of Fort Collins, Larimer County,
Colorado, as more particularly described and depicted on Exhibit A
attached hereto, including Seller's interest, if any, in all mineral, oil,
gas, gravel, geothermal, and ground water rights appurtenant
i 957w63.4 ,
thereto; together with all contracts and contract rights, studies,
materials and plans, including architectural, landscaping, grading,
and other plans, specifications_ and reports applicable to the Lots; all
easements, rights ° of `way, permits. approvals, privileges and
entitlement's appurtenant thereto and all right, title and interest, in
and to' all sreets'and water courses adjacent to, abutting or serving
the real property.
(gc0 The proposed development of the Property into a desired number Of
six hundred twenty-five (625) Lots; to be developed into 'single
family detached, paired, and townhome'Homes, with plans for low
maintenance Homes and "Next Gen" Hornes, together, with planned
significant trail systems, parks and open space tracts, with a central
civic park to memorialize the former Hughes Stadium, and
associated retail uses, to be lkdiown as the "Hughes Subdivision".
(rr) RmqJzaP__PnLP-. The amount to be paid to Seller as provided in
Section 3(b).
(SS) E&p=s=1a1LYjL*_As defined in Section 17(a).
(tt) Be )ieng: As defined in Section 17(a).
S,�fL_
(uu) RclAiL-Cluing; The closing between Buyer or its successor and a
third -party hornebuyer of a Lot with a completed Home thereon.
(vv) $AkLyr �ju (0: The purchase price for a florne(s) paid by a third
party hornebuyer at a Retail Closing, based upon the closing
settlement statement (formerly known as a "HUD-1 '1.(ww)
As defined in Section 4(b).
(xx) lde,��ictd. As defined in Section 6(c)l,
(yy) JjgdatQd_5a=; As defined in Section 6(e):.
(ZZ) _Wzrm1J1aPim1i9n_D_=,,: As defined in Section 14(b).
2T_uqW=md_5.pk Subject to the ten-ns and conditions of this Agreement,
Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the Property in fee
Simple.
3
Within five (5) business days taller the Effective
Date, Buyer shall deliver to Escrow Agent the Deposit by wire transfer, or at Buyer's election,
shall deliver to Escrow Agent the Deposit in the form of a letter ref credit issued by
or the benefit of Seller in the forrn, at`tached hereto as X It (t e tier re It t uyer fails to deliver the
Suitability Notice as provided in Section 4(b), prior to the end of the Feasibility Period, then this
Agreement shall automatically terminate as of the end of the Feasibility Period and Escrow Agent
shall immediately return the Deposit to Buyer at such time. After delivery of the Suitability Notice,
the Deposit shall be nonrefundable to Buyer except as expressly provided in Sections 6(g)(ii), 7, 8,
9, 1 I(b) and I l(d) of this Agreement. The Deposit shall be held by Escrow Agent in escrow, with
arty cash portion held in a separate, Werally-insured interest hearing account(s), and the interest
shall be considered pan of the Depos1 The Deposit shall not be credited a8ainst the Purchase
Price, unless during the term Of this Agreement the Letter Of Credit is substituted or replaced with
a cash deposit, and then only in the arnount held by the Escrow Agent and applied at Closing. If
this Agreement is termu . ' terminated by Buyer prsuant to Sections 4(b), 4(d), 4(e), 6(g)(ii), 7, 8, 9, ) J(b)
and I I(d), the Deposit then held by Escrow Agent shall be returned to Buyer by Escrow Agent,
and, except as otherwise provided herein, thereafter, all ffirther rights and obligations of the Parties
under this Agreement shall terminate,
(b)Eurcbim Price. The Purchase Price for the Property payable at Closing
shall be Ten Million Dollars ($10,000,000.00) ("Purchase Price"). and shall be adjusted prior to
Closing as follows:
Wbased upon the number of Lots contained in the Final
Plat, if fewer than sixty hundred twenty-five (625) Lots are approved in the Final Plat, then
the Purchase Price would be reduced on a pro rata-basis in the amount of Sixteen
Thousand Dollars (S 16,000.00) per Lot less than sixty hundred twenty-five (625) Lots, up
to a maximum reduction equivalent to Four Hundred Thousand Dollars ($400,000.00); (ii)
if more than sixty hundred twenty-five (625) Lots are approved in the Final Piet then the
Purchase Price would be increased-° by the amount of . Sixteen Thousand Dollars
($16,000.00) per Lot more than sixty hundred twenty-five (625).Lots; and (iii) if the City
allows a reduction of the amount of drainage areas in the Project from those currently
shown on Buyer's Initial Concept Plan, then the Purchase Price would be increased by
Eight Thousand Dollars ($8,000.00) for'each such additional Lot more than sixty hundred
twenty-five (625) Lots caused as a result of the reduction of the drainage areas in the
Project; and
(li)Buyer's Entitlement Costs up to a maximum of Four
Hundred Thousand Dollars ($400,000.00) shall be applied as a credit against the Purchase
Price, provided that Buyer shall deliver to Seller paid invoices with reasonable backup
documentation.
(c)AddAignd Urchase bio.'In addition to the Purchase Price, from'and
after Closing, Buyer shall pay Seller the Additional Purchase Price specified in Section 15 below.
(d)Entitlement and matting Costs. The Parties acknowledge and agree that
the Purchase Price is based upon the Final Plat pursuant to the Project Documents receiving final,
unappealable approval by the applicable Authorities, together with recordation thereof, on or
before Closing for a minimum of six hundred twenty five (625) Lots, subject to adjustment
pursuant to Section 3(b) (or if appeal is taken, such appeal has been resolved to the commercially
reasonable satisfaction of Buyer). Buyer shall be responsible for all costs of
1857.5.2
preparation and submittal of the Final Plat and Project Documents, and to pay any fees imposed by
the Authorities as a condition to final approval of Final Plat and Project Documents and the costs
charged by the County Clerk and Recorder for recordation of the Final Plat, and any park and
school dedication fees imposed by the Authorities at or before recordation Of the Final Plat to the
extent not satisfied by open space and school dedications in the Final Plat, and any traffic impact
fees or other fees or charges imposed by the Authorities at recordation of the Final Plat, expressly
including any raw water requirements and City -required water resource or water capital fees. Buyer
agrees to be solely responsible for such costs of rezoning, platting and engineering costs Of
preparation and submittal Of the Final Plat and Project Documents incurred by Buyer (collectively,
"Buyer's Entitlement Costs"). During the Feasibility Period, Buyer will present Buyer's Initial
Concept Plan to the City for preliminary review and feedback.
(a)Feasibiiity Sh*. Buyer shall have the right during the Feasibility Period,
to investigate title and to make such investigations, studies and tests with respect to the Property
as Buyer deems necessary or appropriate to determine the feasibility of purchasing the Property.
Buyer acknowledges and Seller hereby agrees that Buyer will, during the Feasibility Period and
prior to Closing, have the opportunity to make "Investigations, Tests and Surveys", as hereinafter
defined, on the Property, to satisfy itself that the Property is satisfactory for Buyer's intended use.
"Investigations, Tests and:Surveys" means,*, without limitation, the following: (i). inspecting,
surveying, making engineering, environmental and architectural studies, testing the soil and
otherwise determining the condition of the Property; (ii) reviewing all Documents received from
Seller • under Section 4(c), all subdivision. • zoning, and ; building code ordinances, rules and
regulations of the City and applicable Authorities and the State of Colorado; (iii) determining that
utilities; including, but without limitation, water; gas, electricity, telephone and cable television
services, can be made available to adequately serve the improvementswhich are intended to be
constructed on the Property; (iv) determining that there is or shall be adequate access to serve the
Homes and retail spaces that Buyer intends to construct on °.the Property; (v) � determining the
nature, magnitude, and times due Of atl taxes, fees, charges, system development fees; tap fees,
and Other costs which are or may be imposed upon the Property or Buyer by any utility.company
or government or quasi -government agency; (vi) determining the adequacy of water, and sewer
taps for the Property and service of same; (vii) determining the number, size and location of the
Lots and retail spaces by submittal of a land plan to the City; and (viii) determining all other
matters regarding the Property,and the development thereof which Buyer deems appropriate.
However, Buyer shall not engage in any physically invasive testing or inspections without Seller's
prior written consent not to be unreasonably withheld or delayed. Seller wilt permit Buyer's
consultants to contact the applicable Authorities in order to investigate the Property. Buyer will
be fully responsible for payment of Buyer's consultant fees, costs and charges with respect to any
such investigation. Buyer's obligation to purchase the. Property, is specifically contingent and
conditional upon Buyer being satisfied in its sole and subjective discretion that the Property can
be developed for the Project and that there are no impediments to the development of the
Property for the Project, which would make it unprofitable, impracticable or infeasible to
purchase and develop the Property for Buyer's intended use..,
1857w65.2
(b)J-'Qg . Buyer shall have until expiration of the Feasibility
Period to satisfy itself, in its sole and subjective: discretion, with respect to the conditions set forth
in this Section 4. It shall be conclusively presurned that Buyer is dissatisfied with the conditions
set forth in this Section 4, and tiie Agreement shall automatically terminate and Buyer's Deposit
shall be returned by Escrow Agent unless Buyer gives written notice to Seller Of its waiver ofthe
conditions set forth in this Section 4 (the'Suitabifity Notice") prior to expiration of the Feasibility
Period. In addition, at any thrre prior to expiration of the Feasibility Period, Buyer may, in its sole
discretion, for any reason or for no reason. terminate this Agreement by written notice to Seller.
Upon any such tennination of this Agreement, Buyer's Deposit shall be irrunedistely returned to
Buyer, and thereafter no Party hereto shall have any further obligation or liability to the other with
respect to the transactions contemplated by this Agreement except for Buyc:es obligations pursuant
to Sections 4(c) and 12 hereof, which shall survive termination of this Agmement. Except as
otherwise provided herein, no examination of the Property will be deented to constitute a waiver or
relinquishment on Buyer's part of its rights to rely on the express c6venants:, representations,
warranties and agreements of Seller in this. gre ment.
(c)i r rJ_uf Eras, 'easibility Period and thereafter until this
*, During tire F
Agreement is terminated, Seller shall permit Buyer, its employees, agents, contractors and
subcontractors (after giving, Seller reasonable prior notice identifying the purpose of Buyer's entry)
to enter upon the Property and while thereon make surveys, take measurements, perform soil test
borings or other tests of surface and subsurface conditions, make engineering, environmental and
other studies and inspect the Property. However, Buyer shall not engage in any physically invasive
testing or inspections without Seller's prior written consent. Seller has made available to Buyer all
material reports, surveys, tests, studies, assessments and other inforniation regarding the Property,
that are in Seller's possession or control to facilitate buyer's due diligence review of the Property
(the "Documents"). Buyer shall (i) keep the property free of any liens or third party clairns
resulting therefrom; (ii) defend, indemnify arid hold harmless Seller and each of Seller's employees
and agent,;, and Selices affiliates' employees and agents (each an "Indemnified Parly") from and
against any and all, claims, causes of action, costs (including reasonable attorneys' fees), losses,
liability,, or awards of any kind or nature incurred by Seller and/or an Indemnified Party caused by
Buyer's enby into the Property, excluding negligent acts of Seller and pre-existing conditions in
the Property not otherwise exaurbated by Buyer's entry, (iii) restore as nearly as practicable: such
portion of the Property darnaged by Buyer's entry to substantially its condition immediately before
such exercise, and (iv) maintain general liability insurance from the date hereof naming Seller as
an additional insured, covering Buyer's activities on the Property in the minimurn amount of
$2,000,000 combined single limit for death, bodily injury and property damage, with companies
and in a form reasonably stuisfactmy to Seller. The lernis, of subjections 4(c)(i) to 4(cXiii) for the
benefit of Seller shall survive the Closing or earlier termination of this Agreement,
During the Feasibility Period,
Buyer shall use commercially reasonable, diligent and, good faith efforts to satisfy itself, in Buyer's
reasonable detennination, that the City will approve the final Project Approvals (as defined below)
for a minimurn of six hundred (600) Lots (the "Preliminary Entitlement Confirmation").
Preliminary Entitlement Confvniation shall include preliminary approval at a public hearing, and
support by City Council or the Planning said Zoning Board at a preapplication hearing. Buyer shall
use commercially reasonable, good faith eflbrts to notify Seller in advance of any meetings or
telephone conferences with City representatives that in any way pertain to its, pursuit of the
Preliminary Entitlement Confirmation, and shall afford Seller the opportunity to have a
representative present. If, despite commerciallly reasonable, diligent and good faith efforts, Buyer
is unable to obtain a Preliminary Entitlement Confirmation or before ninety (90) days after
expiration of the Feasibility Period (the "Preliminary Entitlement Confin nation Deadline"), and
195701%5.2
elects to tenninate this Agreement by written notice to Seller on or before the Preliminary
Entitlement Confirmation Deadline, as a result thereof, Buyer's Deposit shall he immediately
returned to Buyer and Seller shall reimburse Buyer for Buyer's, actual out-of'.pocket costs mid
expenses incurred in connection with its efforts to obtain the Preliminary Entitlement Confirmation
(and not for other Feasibility Period matters) in an arnount not to exceed Four Hundred Thousand
Dollars ($400,000.00), as evidenced by paid invoices with reasonable backup documentation (the
"Prelim inw-y Entitlement Reimbursement"). Within ten (10) business days after payment by Seller
of the Preliminary Entitlement Reimbursement to Buyer,, Buyer shall deliver or cause to be
delivered, copies Of all of Buyer's Entitlement Work
roduci (as hereinafter derined). For purposes of this Section 4(d), "°buyer's Entitlement Work
roduct" means all site planning, development, platting and public improvement plans prepared by
uyer related to the Project, including any application materials related to the Preliminary
ntitlement ConFinnation or the Project Approvals, but not including Buyees proprietary, privileged,
r confidential information or Home plains. Buyer shall (a) take such actions and pay any legitimate
outstanding sums as may be necessary to preclude any claim against Seller or the Property for any
urns owing for the preparation of Buyer's Work Product, and (b) use reasonable efforts to obtain
Ithin ten (10) business days after Seller gives Buyer its written request, such consents is may he
Asonably necessary to enable Seiler to utilize Buyer's Work Product; provided, that Buyer shall not
e responsible for any party or consultant's, refusal to provide any '5rich consent. Buyer's Work,
roduct shall otherwise be assigned "as is," without any representation or warranty by Buyer with
aspect to the accuracy or completeness of its contents. To the extent Buyer's Work Product can be
;signed, Buyer's Work Product shall be deemed assigned to Seller upon tile termination of this
greement tinder this Section without the execution of any additional documents. The foregoing
�rrns for the benefit of Seller shall SUrViVC the tClTnination of this Agreement.
(e)PrQLect A after the EffoDa ctive te, Buyer, at its sole
pRM_q_v Is. From and
cost and expense, shall use commercially reasonable, diligent and good faith efforts to obtain all
necessary approvals from the City and all other applicable Authorities on or before that date which
is twelve (12) months after the Effective Date (the "Project Approval Period") for the following: (i)
a PUD, with applicable 7A)ning overlay: (H) a Subdivision Improvement Agreement for the Project;
(iii) a Final Development Plan for the Property; (iv) a final plat or plats for the Property in
connection with Buyer"s development of the Project to be recorded in the Clerk and Recordees
Office of the County of Larinter; and (v) engineering and constniction drawings and plans related
thereto (collectively, the "Final Plat") (all of which will be referred to oollectively as the "Project
Documents"), The approval by applicable Authorities of the Project Documents, shall be referTed
to herein as the ' 'Project Approvals," If required by the City, the Project Documents will be
submitted to the Authorities tinder SdIer's narne as owner of the Property. The Parties
acknowledge that Ray Baker will 'represent Seller on behalf of the Project and shall support,
cooperate and assist Buyer in obtaining the Project Approvals, at no out-of-pocket cost to Seller;
provided, however, that Buyer will be the "front" spokesperson for the Project with the City and
will liaison with the City on behalf Of tire Project Buyer agrees to use commercially reasonable
efforLs to keep Seller reasonably informed of the status of its efforts to obtain the Project
Approvals. The Parties acknowledge and agree that the Closing shall be conditioned on Buyer's
ability to obtain the Project Approvals on or before die expiration of the Project Approval Period,
In the event Buyer is unable to obtain approval of the Pruject Docurnents, despite using diligent
efforts, prior to the expiration of the Project Approval Period for reasons beyond Buyer's
reasonable control, Buyer may elect to either (i) terminate this Agreement upon written notice to
Seller prior to the expiration of the Project Approval Period and thereafter the Parties shall have no
further rights or obligations hereunder, except for those which expressly survive termination, or (ii)
waive its contingency in writing prior to the expiration Of the Project Approval Period to obtain
the Project Approvals and proceed to Closing, and this Agreement remains in 11,111 force and effect,
or (iii) request in writing within twenty (20) days before the expiration of the Project Approval
Period a one-time extension of the Project Approval Period and the Closing Date for a period of
time not to exceed ninety (9,0) days, Notwithstanding the foregoing, Buyer will not be obligated to
fund or continue with the entitlement and platting process if, in Buyer's sole but reasonable
discretion, Buyer determines during the Project Approvals Period that the City will not approve the
Final Plat in conformance with Buyer's initial Concept Plan.
(f)Seller Review. A draft of the Project Documents shall be submitted by
Buyer to Ray Baker, at rbaker9217(@ei6ail com on behalf of Seller; for Sellers approval, not to be
`unreasonably withheld before submitting the same to "the -City. � A' courtesy ' copy of the Project
Documents` shall be sent concurrently to general.counsel(,colorados te.odu. Seiler shall have'ten
(10) Business days after each such submittal to provide written notice Of any objections to same,
and if Seller does not provide a written objection within such -10 buslness'day period, then it shall
be deemed that Seller has approved such submittal. After such approval or deemed approval' by
Seller, Buyer shall not revise the form of the Project Documents in a material way without
obtaining Sellers prior approval, noi'to'be unreasonably withheld or delayed. Upon approval by
Seller; Buyer shall §ubmit the drsift Project Documentito the City. Notwithstanding anything to'the
contrary contained in this Agreement, Buyer shall be solely'responsible for the timely payment of
all fees assessed by the City relating to the Project Documents and any'oiW development of the
Project as required pursuant to the Project Documents,' including, without limitation, 'all
application' and permit fees, site plarming, engineering costs,'and rrecording costs and any and all
school fees assessed 4 Final Plat;` land dedication fees; disiAcf fees, cash4n-Berl 'pa*ents, City
financial 'assurances�aiid'any other fee related thereto; it being Wiessly'agreed to by the Parties
that Seller'shall not be responsible for the payment of any such fees'or for any penalties resulting
from Buyers failure to timely pay any such fees.
(g)Dist q. Seller hereby acknowledges and agrees that Buyer may elect, and
hereby retains the tight, at its sole and'absolute discretion any time after Suyer'has delivered its
Suitability Notice to create a new metropolitan district controlled initially by Buyer or its
Affiliates, to which the Project will not be subject until after Closing for the PUQOse of finding
public improvements and/or provide covenant enforcement and maintenance services for the
Project as approved by the City (the "District")., Upon ;the inclusion of the Property within the
boundaries of.such District after, Closing, the Project shall be subject, to: any;and all levies and
facilities fees assessed against the Project from, such District. Any agreements or, documents
9
1as"%sz
carrying out the intent of this Section may be recorded against the Project at Closing,, but not prior to
Closing. Subject to the terms Of this Section,, Seller will n`ot Object or otherwise challenge inclusion
of the Property now. or in the future.into the District. However, Seller wilt not actively. participate in
Buyer's efforts to obtain approval of the District by,,the City. The,Parties further acknowledge and
agree that the Closing shall not be conditioned on puyees ability to obtain approval of the District by
the City'
{41 ime Sales I aiier: Storage of EQuipment..After the end of the Feasibility
Period. for so longasBuyer has not terrninated this Agreement, Buyer ahalfhave the right tolplace
signs and a sales trailer on the . Property and to conduct marketing activities thitvbn solely in
relation -to development Of the Project, all in accordance with,the applicable Legal Reguire"n, s,
and approved by,Seller, such approval not to be unreasonably withheld or delayed. Seller shall also
provide, at no cost to Buyer, adequate space on the Property far. storage of construction equipment
and materials that Buyer and its contractors and their. subcontractors may from time to time require
solely in relation to development of the Project.,Such space shall be located in an area mutually
acceptable to Buyer.and Seller In connection with Buyer's -exercise of its rights hereunder, Buyer
Shall comply with all requirementsis'sei forth in'Section 4(cXi)to (iv):
(i)Attainable Houal". During the Feasibility Period, Buyer and Seller shall
use commercially reasonable, good faith effo'ns to reach agreement regarding an allocation of a
portion of the Property for the development of attauiable housing.
S.
(a)Closing'shall take place within ten ( 10) business days, after the final,
unappealable approvalby the applicable Authorities of the Project Documents (or if appeal is
taken, such appeal has been resolved to the commercially reasonable satisfaction of the Buyer) and
recordation of the Final Plat, but in no event later than the Outside Closing Date (the "Closing
Date"). Closing shall occur through an escrow with Escrow Agent, whereby Seller. Buyer and their
attorneys need not be physically present at the Closing and may deliver documents by overnight air
courier or other means. The Parties acknowledge that Buyer requires five (5) business days to wire
the Purchase Price after approval of the Closing settlement statement.
(b)Subject to the adjustments provided for herein, any credit of the cash
portion of the Deposit at Closing as provided in Section 3(a) and a credit at Closing of Buyer's
Entitlement Costs in accordance with Section 3(b)(ii), Buyer shall pay at Closing the Purchase
Price by cashier's or title company check or wired funds.
(c)Upon delivery of the Purchase Price, the Parties shall execute,
acknowledge, and deliver the Closing documents set forth on Exhibit D•
(d)Each Party shall execute, acknowledge, enseal and deliver, after the
Effective Date, including at or after Closing, such further reasonable and customary assurances,
instruments and documents as the Escrow Agent may reasonably request in order to fulfill the
intent of this Agreement and the transactions contemplated hereby.
(e)AII real estate taxes, and all other public or governmental charges and
public or private assessments against the Property which are or may be payable on an annual basis
(including metropolitan district, sanitary commission, benefit charges, liens or encumbrances for
sewer, water, drainage or other public improvements whether completed or commenced on or prior
to the Effective Date or subsequent thereto), shall be adjusted and prorated between the Parties as
of the day prior to Closing and paid by Seller at Closing (as a credit to Buyer) and shall from and
10
1E510%52
after Closing be assumed and paid by Buyer, whether or not assessments have been levied as of the
date of Closing. Any tax proration based on an estimate shall be final. The obligation to adjust shall
survive Closing. I
(f)The cost of documentary stamps, transfer taxes and recording fees shall be
paid by Buyer. Notwithstanding the foregoing, Seller shall pay at Closing, without any contribution
from 'Buyer, (i) any agricultural land, recapture, or roll -back tax due in connection with the
conveyance or deed under any Authority's law, regulation or ordinance (or any similar tax or
assessment), ,and (ii) the cost of preparing release documents, if any, and the recording thereof for
any lien releases required to be obtained by Seller •in order to convey title to the Property in
accordance with Section 6.
,
7. T'itle'and Survey.
•(a)Commitment. Within, ten (10) days following the Effective Date, Escrow
Agent shall, at Seller's cost, deliver to Buyer, with a copy to Buyer's counsel, a title insurance
commitment, with best available copies of all, exceptions evidencing title to the Property
(collectively,- the "Commitment") by the Title Company. The original Commitment and any
Existing Survey (as defined below), are refef ed to as the "Initial Title Materials°. The list of
Permitted Exceptions shall be attached hereto as Exhibit E prior to expiration of the Feasibility
Period as provided in -Section 6(h). ,
(b)Form of Commitment. The Commitment shall be in the amount of the
Purchase Price and shall be updated as.provided in Section 6(d), and,shall be for an ALTA Form
2006 extended coverage owner's title, policy:,with all, standard pre-printed exceptions deleted,
provided,that Buyer shall be responsible,for any updates to, the Existing Survey required by the
Title Company to delete the so-called "standard.tide exceptions."
(c)Title Review Buyer shall have until the date that is thirty (30) days after
receipt by Buyer of the Initial Title_ Materials to review the Commitment and any Survey (the 'Tide
Review Period"). ! if Buyer determines that there are title exceptions or, matters shown on, the
Survey other than those,deemedto,be acceptable to Buyer, Buyer shall notify, Seller, in writing, of
such title defects during the Title Review Period (the "Buyer's Title Objection Notice") and Seller
shall have the right, within ten (10) days after receiving such notice, to.elect: (i) to cure the title
defect. at Seller's cost and expense, or. (ii) not to cure such defect (the "Seller's 'Title Response
Notice").. Seller's failure to notify Buyer in writing within the stated time frame shall be deemed
Seller's election not to;cure. If Seller elects to cure, Seller, shall use its commercially reasonable
efforts -to' do so prior to Closing, and provide: Buyer with an .update, to .the --Commitment
demonstrating that the title defects have been cured. if Seller fails to. timely cure or elects not to
cure,, then Buyer shall be entitled to elect to terminate this Agreement or waive such defect by
delivery of written notice to Seller on or before the date that is ten (10) days after the date on which
Seller's Title Response Notice was due, and if Buyer elects to terminate, Buyer shall be entitled to
the return of the Deposit. If Buyer fails to ,timely; deliver its written waiver, pursuant to the
preceding sentence, this Agreement shall be. deemed terminated and Buyer, shall be entitled to the
prompt return Of its Deposit. Buyer shall not be required to object to mechanics liens, mortgages,
or deeds of trust caused by Seller, and the Parties agree that such items will be released at Seller's
expense as of Closing.
(d) Apggd Commitment. The Commitment shall be updated, together with
legible copies of any additional matters identified therein, and shall be delivered to Buyer no less
than ten (10) days before the Closing Date, unless there are no additional matters listed as Schedule
B-2 excerptions in which case the update may be delivered at the Closing. Unless caused by Buyer
or its employees, agents, contractors or subcontractors, if any updated Commitment discloses any
new requirement; defect, encumbrances or other adverse matter that is not a Permitted Exception,
1aszo%sx
then Buyer shall notify Seller - in -writing of the new title defects on or: before Closing. The
procedures. set forth ` in . Section 6(c) shall be, applicable to any such new title defect, and if
necessary, the Closing Date shall be extended accordingly.
, , (e)5wiM. Within five (5) days following the Effective Date, Seller shall
deliver the most recent ALTANSPS survey of, the Property (:-'Existing . Survey") to Buyer. Buyer
shall have the right, but not the obligation, at Buyer's sole cost and expense, to obtain an update to
the Existing Survey ("Updated Survey" and together with the Existing Survey, the'Survey"), which
such update, -if obtained, shall be certified to Buyer, Seller, and the Title Company, and otherwise in
form sufficient to insure -deletion of the standard preprinted,exceptions on the title policy.
(t),&= Review. In the event the Survey reflects easements, encroachments,
rights -of -way, roads, lack of access, deficiencies, overlaps, gaps or gores between any parcels
included within the Property or between the Property and any adjoining streets or roads, or other
defects not contained in the Permitted Exceptions to title or other matters which preclude the use of
the Property,for the purposes set forth in this Agreement, then Buyer shall notify Seller, in writing,
of such survey defects . during the Title -Review Period (the '.'Survey Objections"):' Survey
Objections shall be considered as defects in title and Seller shall -have the same rights and duties
relating to the remedy of such survey defects as are provided in Section 6(c) pertaining to the
remedy of title defects. The procedures relating to the raising and curing of Survey Objections shall
be the same procedures as are provided in Section 6(c) pertaining to title defects.
{g}Additional Title Matters. For the purposes of this Agreement, an
"Additional Title Mattei-"'is any -encumbrance'on. or defect in, title to'the Property that is not a
Permitted Exception and that' was -not disclosed in the Initial Title Materials (including, without
limitation, matters shown on any Surveyl which was not'caused by Buyer or its employees, agents,
contractors or subcontractors; and the "Interim Period" refers'to' the period of time that is between:
(A) the expiration of the Feasibility Period, and (B) Closing Date. If at any time during the interim
Period,'Buyer obtains knowledge (through an update to the Commitiment or the Survey, the closing
Commitment'or otherwise) of any'Additional -Title Matter which' is objectionable to Buyer, Buyer
shall give Seller written notice (an 'Objection Notice") of its objection to the Additional Title Matter
no later than five (5)'husiness'days after the date on'which Buyer receives written notice of such
Additional Title Matter Any such Additional Title Matter for which Buyer does not deliver a timely
Objection Notice, shall be deemed 'to have been accepted by Buyer ,and shall be a Permitted
Exception. Seller shall use cornmeicially reasonable efforts to; within five (5) business days after
receipt of an Objection Notice for an Additional Title Matter caused by Seller; its employees, agents
or contractors (the "Title Cure Period' % to take reasonable actions to remove or cure or, with
Buyer's consent, to obtain title insurance over the Additional Title Matter subject to such Objection
Notice. In the event that Closing is scheduled to occur during the Title Cure Period, the date of
Closing shall, at Seller's option, be extended to a date that is not more than thirty (30) days after the
delivery of the Objection Notice to enable Seller to take any such -cure actions. If Seller is unable to
remove or cure using commercially reasonable efforts or, with •Buyer's consent, -to obtain title
insurance over all such Additional Title Matters prior to the end of the Title Cure Period;' Buyer
may, by written notice (the "Election Notice") given to Seller within five (5) business days after the
end of the Title Cure Period, elect only one of the following options:
(i)accept the Property with such defects, and waive any
uncured Additional Title Matters for which Buyer has delivered an Objection Notice; or
(H)o terminate this Agreement, and upon such termination
the Deposit shall be returned by Escrow Agent to Buyer, and the Parties will have no further
rights, obligations and liabilities hereunder, except those rights, obligations and liabilities
that expressly survive termination; provided :however, if: such Additional Title, Matter is
caused by an act of Seller aver the date hereof and is not otherwise contemplated by this
12
18570 .2
Agreement, or is a matter which Seller agreed in writing, or was obligated, to cure, then
Seller shall be in default hereunder and Buyer shall have Buyer's rights and remedies under
Section I I (b) hereof.
If Seller does not receive an Election Notice within such 5-busincss day
period, Buyer shall be deemed to have elected option'(i) above, in this Section
(h)Permitted Exceptions. If this Agreement is not terminated pursuant to
Section 4(b), the term "Permitted Exceptions" shall mean (i) taxes and assessments for the year of
Closing and subsequent years, a lien'not due aad'payable, (iI) any matter that is disclosed in the
Initial Title Materials , or any < Additional Title Matter which is disclosed in any updates or
supplements tdthe Initial Title Materials and ib"which Buyer' does not object'm accordance with
Sections C(c)' or (g) or to ;which Buyer so objects but 'subsequently waives (or is deemed to have
waived) its objection, or consents to title insurance over such matter, (iii) the Final Plat and the
Project Documents, (iv) .any easements to any special or metropolitan districts, utility:providers,
and governmental and'Quasi-governmental entities required in connection with the Final Plat or the
Project Documents, (v) any, title exceptions or encumbrances which are created by, through or
under Buyer, or which are otherwise created, approved or waived by Buyer, (vi) that certain Option
and Site Lease Agreement dated May I, 2002, by and. between The ;Colorado State Board of
Agriculture acting by and through' Colorado State University, a 'state institution of higher education,
and Qwest Wireless, L.L:C., a Delaware I;united liability'company,'arid (vii) that certain Lease
Agreement dated July 29, �201 1, by and between Colorado State University and the City.
Notwithstanding the foregoing terms' of this Section G(h), the following items shall be excluded
from the definition' of "Permitted Exceptions": (1), {airy delinquent* taxes or assessments, (2)
mechanics liens, mortgages, or deeds of trust caused by
M70M.z
Seller,'(3)'the standard printed exception relating to mechanics liens caused by Seller, (4) any. Other
standard printed exceptions which the'tiW Company has agreed to'delete"or will delete' pursuant to
an issued endorsement, which Seller expressly agrees to pay. r
If, afier.the Effective Date'and prior to Closing, a portion of
the Property -is "' en (or{threatened to be';takenj under the power'or'tliieat'of eminent
domain that (i) la" 'the effect' of reducing the agggregate,value Of fire Property by more than
f r: i
ten percent (10"/0) Of the Purchase Price, or (ii) impedes proposed or current access to the
Property; then, in any such event, Buyer may elect to terminate'tliis Agreement by giving
written notice to Seller of its oleation'to terminate this 'Agreeineni'(a' "Material "Event
Tennuiation igotice") �nthin-ten (I6} days after notice of such condemnation or similar
proceeding, m which case the. Deposit shall be returned to Buyer, aed botli� Seller and Buyer
shall bereleased liorii'fiuther responsibility hereunder If Buyer'does'not'give (or has no
right to give) a lvlaterW Event Termination Notice within such' ll 0.day period; then Seller
shall assign to Buyer all _of Seller's ri1.ght to. receive conderiu ation proceeds after'Closing
payable as i result of such' proceeding, and Buyer shalltbe entitled town abatement Of the
Purchase Price in an amount equal to any coridemniiion proceeds received by Seller prior to
Closing, Notwithstanding any provision to the'contrary, in no eveni'shall any dedication of
setbacks for rights of `way and other public areas as required by the City and disclosed in
`the Documents be considered a'taking under'the power or threat of eminent domain as
intended by this Section. "
9. Seller's Conditions Precedent to Closing. Seller's obligation to complete
Closing shall be conditioned upon the satisfaction (or Seller's written waiver thereof) of the
condition precedent set forth in this Section 8. Seller shall be entitled to waive. in writing,
the condition precedent set forth herein. In the event that the condition precedent to Closing
has not occurred on or before the Outside Closing Date, Seller may, at Seller's option
exercised by written notice to Buyer, (i) extend the Closing for an amount of time. equal to
the time it takes the responsible Party, utilizing good faith, best efforts, to satisfy the
condition precedent for Closing, but no later than as specified in Section 1(ii), or (ii)
terminate this Agreement, in which event the Deposit shall be returned by Escrow Agent to
Buyer, and, unless the failure of the subject condition precedent to Closing is due to the
default of Buyer, which will be subject to the provisions Of Section I [(a), neither Party
shah thereafter have any liability to the other hereunder, other than those liabilities and
obligations which by the express terms of this Agreement are intended to survive such
termination. The condition precedent is as follows:
(a)Rggmmtat =. Each of Buyer's representations and warranties as set forth
in Section Error! Reference source not found. shall be materially true as of the date of Closing and
Buyer shall so certify in writing at Closing.
10. )fees Conditions Precedent to Closing. Buyer`s obligation to complete
Closing shall be conditioned upon the satisfaction (or Buyers written waiver thereof) of
each of the conditions precedent set forth in this Section 9. Buyer shall be entitled to waive,
in writing, each or any of the conditions precedent set forth herein. In the event that all
conditions precedent to Closing have not occurred on or before the Outside Closing Date,
the Parties agree that Buyer may, at Buyer's option exercised by written notice to Seller,
terminate this Agreement, in which event the Deposit shall be returned by Escrow Agent to
Buyer, and, unless the failure of the subject condition precedent to Closing is due to the
default of Seller,
1857ors-2
which will be subject to the provisions of Section I I(b), neither Party shall,thereafter have any
,liability to the other hereunder, other than those liabilities and obligations which by.the express
terms of this Agreement are intended to survive -such termination. The conditions.precedent are as
follows:
(a)Title Company shall deliver to Buyer or shall be unconditionally committed
to issue to Buyer after Closing an extended coverage title policy (ALTA Form 2006) insuring title
to the Property, without preprinted exceptions to title as set forth in Section 6(a), subject only to the
Permitted Exceptions, and subject to Buyer providing any update Of the Existing. Survey as
required by the Title Company.
(b)MgMIQa . There; shall exist no general .moratorium imposed or
announced by any Authority or utility supplier that would result in any Authority denying permits
necessary for the development, . construction, use or occupancy, of the Property as a residential
development or any utility supplier delaying or denying'sanitary sewer, water, natural gas,
electricity or telephone connections with respect to the Property.
(ORaresentations Each Of Sellees representations and warranties as set
forth in Section 14(s) shall be'materially true as of the date of Closing and Seller shall so certify in
writing at Closing:
(d)FivAl Plat and Project Documents. The City and any other applicable
Authorities shall have granted final, unappealable approval of the Final Plat and Project Documents
(or if appeal is taken, such' appeal has been resolved to the commercially reasonable satisfaction of
Buyer), and the executed Final Plat has' been recorded in ' the Cleric 'and, Recorder's Office of
Lar net•County. Bayer shill use diligent acid good faith efforts to record the Final Plat promptly
upon approval and execution of the same." '
11. Possessionr. At Closing,'Seller shall deliver exclusive possession : and
occupancy of the Property to'Buyer free and clear of any claims of any third parties to
possession thereof; except as set forth in the Permitted Exceptions.,
12.1 Default•
(a)Bmyer Default. If Buyer is the defaulting Party, because of the difficulty in
calculating damages; the Parties 'agree that Seller's sole and exclusive remedy at law or in equity
shall be limited to the right to terminate this Agreement, to draw completely down the Letter of
Credit held by Escrow Agent, and to retain the Deposit as provided in Section 3(a) as liquidated
damages, and the Deposit;shall be forfeited. Other than the specific remedy expressly set forth in
this Section'I 1(a) and except for the'indemnities contained in Section 4(c), Seller hereby waives
any and all right and remedy, at law or inequity, to which Seller may otherwise have been entitled
by reason of Buyer's default, including any right in equity to seek specific performance of this
Agreement by Buyer and any right at law to seek damages from Buyer.
(b)ScIler Default. If Seller fails to consummate Closing in breach of this
Agreement, the Parties agree that Buyer shall have the right to elect, as its sole and exclusive
remedy at law or in equity, to (i) waive such default or breach and proceed with the purchase of the
Property pursuant to the remaining terms and conditions of this Agreement without any reduction
of or credit against the Purchase Price; (ii) terminate this Agreement and receive a prompt return of
the Deposit and reimbursement from Seller of Buyer's out-of-pocket expenses incurred in
connection with this Agreement, including, without limitation, Buyer's Entitlement Costs, not to
exceed $250,000.00; or (iii) pursue specific perfomance under this Agreement provided that such
action must be commenced within ninety (90) days following Buyer's discovery of Seller's material
15
ls"M51
default under this Agreement. In the event of any default by Seller, or in the event Buyer shall be
entitled to terminate this Agreement. or this Agreement shall otherwise terminate in accordance
WiW the provisions hereof., the, Deposit steal l ' be - immediately returned to Buyer as provided in
-Section 3(a),' but such payment shall not limit Buyer's rights and remedies set forth. above., Other
than the specific remedies expressly set forth in I I(b) and I I(d), Buyer hereby waives any and all
right and remedy, at law or in equity, to which Buyer may otherwise have been entitled by reason
Of Seller's default, including any right at law to seek damages from Seller, except as specified
herein:
IN NO EVENT SHALL SELLER BE LIABLE ,TO BUYER FOR ANY
PUNITIVE, SPECULATNE OR CONSEQUENTIAL DAMAGES EXCEIyI' AS
r
PROVIDED IN SECTION I8(t), IN NO EVENT SHALL BUYER BE ENTITLED TO
RECORD THIS AGREEMENT OR ANY OTHER DOCUMENT OR (EXCEPT IN THE
EVENT OF A DISPUTE ARISING OUT OF THIS AGREEMENT AS NEEDED • TO
ENFORCE ITS RIGHTS UNDER THIS AGREEMENT) AS A U.S PENDENS AGAINST
THE PROPERTY
(c)Cure Period. Notwithstanding the provisions of Sections I (a) and (b)
above, no default by either Party hereto shall result in a termination or limitation Of any rights of
such Party hereunder unless and until the other Party shall have notified the defaulting Party in
writing of said default, and the defaulting Party shall have failed to cure said default within ten (10)
days after the receipt of said written notice.
(d) As provided in Section I 1.(b), it is agreed that in the
event Buyer is not in default under this Agreement and Seller -is the defaulting party, hereunder, and
Buyer desires to seek specific performance of this Agreement, but that due to,Selier's intentional,
affirmative conveyance of all or a portion of the Propertyy o a third party, such specific performance
is no longer a remedy available to Buyer, then this Agreement shall terminate, the Deposit shall
immediately be returned. to Buyer as. provided in Section 3(a), and Buyer. shall receive a payment
from Seller of $250,000.00 as liquidated damages, which the Parties acknowledge is a reasonable
estimate of Buyer's damages for lost profits and lost business opportunity or consequential damages
that would be extremely difficult or impractical to determine. If this Agreement terminates as a
result of the foregoing, it is agreed that the provisions of this Section shall survive any such
termination.
13. Any notice to be. given pursuant to this, Agreement shall begiven in
accordance with Exhibit 0.
14. MWmW Rep=ntations, To induce each other to enter into this Agreement,
each Party hereby represents and warrants to the other that (i) it has been duly authorized
and empowered to enter into this Agreement and to perform fully its obligations
16
hereunder, (ii) such obligations constitute the valid and binding obligations of such Party,
enforceable in accordance with their terms, (iii) that, except as expressly provided in this
Agreement, no further consents of any otherperson, entity, public body or court are required in
connection with this Agreement and the performance of all obligations hereunder, and (iv) it has
not used the services of any real estate agent; broker or finder with respect to the transactions
contemplated hereby.
15. Warrenties and Representations.
(a)Sellees Warranties and To induce Buyer to enter into this Agreement,
Seller represents and wan -ants to Buyer:
(i)Condemnation. Rezoning or. Reclassification. There is
not pending, or to Sellers Actual Knowledge, threatened, any (A) condemnation
proceeding or Other litigation relating to or otherwise affecting,any or all Of the Property,
or (B) except as contemplated by this Agreement, reclassification of any or all of the
Property for local zoning purposes.
(H)VI01al (A) There is not pending, or to Seller's
Actual Knowledge, threatened, from any federal, 'state, county or local Authority any
notice,- suit or judgient relating to any violation `at the Property, and (B) Seller has not
received written notice from any governmental authority that there' is any condition
existing with respect to the Property that violates any statute. ordinance, law or code
regarding zoning, building, fire; air 'pollution, or health law, or requiring any
Smprovement, alteration, addition: correction or other work on or about the Property,
whether related to the Property or to the activities of any owner oroccupant thereof.
(111)Finy'ronmental -Conditions. To Seller's Actual
Knowledge, and except as disclosed, in` any" environmental assessment or other
environmental report or documentation included as part of the Documents, within the last
twenty-four (24) months, Seller has received no written notice alleging the presence of any
"Hazardous Wastes". "Hazardous Material" and/or "Hazardous Substances" as those terms
are defined under any federal, state or local law in, at, about or under the Property
(collectively, "Hazardous Materials") Qin violation of any applicable federal, state or local
enviroininental laws'("Environmental Laws"). For purposes of this Agreement, the tern
"Environmental Laws" shall include, without limitation,, the Comprehensive
Environmental Response, Compensation and Liability Act ('CERCLA"), 42 U.S.C. 9601 et
seq. and the Resource Conservation and, Recovery Act ("RCRA"), 42 U.S.C. 6901 et seq.,
as amended from time to time; and any similar federal, state and local laws and ordinances
and the regulations and rules implementing such statutes, laws and ordinances.
(iV)Li ii. There is no foreclosure action or litigation,
arbitration or proceeding pending, or to Seller's Actual Knowledge, threatened before any
court or administrative agency or any other condition that relates to or affects the Property,
Seller's interest therein, Sellers performance hereunder,'or Buyers intended use of the
Property, or which will result in a lien, charge, encumbrance or judgment against any part
of or any interest in the Property.
d7
(V Omnization. Seller is validly existing under the
laws of the State Of Colorado and has full power and authority to sell the Property.
(Vi)Lft. Excepk as provided in,the Permitted Exceptions,
to Seller's Actual Knowledge, the title to the Property is subject to no tenancy or other right
Of use or occupancy which will remain in effect at or after Closing.
(Vii--Except as disclosed in the Documents
delivered to Buyer hereunder, including, without limitation, the Option and,Site Lease
Agreement and the City Lease, to Seller's Actual Knowledge, Seller has not entered into
any unrecorded restrictions relating to the development of the Property as contemplated
hereunder that would have a material, adverse impact on Buyer's intended use of the
Property. .
(Viii)Nopreach. The execution and delivery of this
Agreement by Seller, the execution and delivery of every other document and instrument
delivered pursuant hereto , by or on behalf of Seller, and . the consummation of the
transactions contemplated hereby do not and will not (A) constitute or result in the breach
of or default under any oral or written agreement to'which Seiler is a party or which affects
the Property; (B) constitute or result in a violation of any order, decree, or injunction with
respect to which Seller and/or the Property is bound; (C) cause or entitle any Party to have
a right to accelerate or declare a default under any oral or written agreement to which
,Seller is a party or. which affects the Property; and/or (D),violate.any. provision of any
municipal, state or federal law, statutory or otherwise, to which Seller or the Property is or
may be subject
(1X)N0 Assessments, There are no special, general, or
other assessments pending or, to . Seller's . Actual, Knowledge, ,threatened against the
Property. All installments of any pending assessments due and payable on or before the
Closing We will be paid by Seller on or before Closing.
WID, Contracts. Seller has not entered into any other
contracts, agreements, or, understandings, verbal or written, for the sale,or transfer of any
portion of the Property which are inexistence as ofthe Effective Date. Between the date of
this Agreement and Closing, t no part of the Property* will be alienated, encumbered or
transferred by Seller.
(Xl�No Commitments. Except as disclosed in the
Documents delivered to Buyer hereunder, Seller has not made commitments to any
Authority, school board; church or other religious body, or to any other organization, group
or individual relating to the Property which would impose any obligations upon Buyer to
make any contributions 'of money or land or to install or maintain any improvements or
which would interfere with Buyer's ability'to use, develop'or improve the Property as
herein contemplated.
(Xii)D mm='The copies of the Documents furnished to
Buyer pursuant to this Agreement are true and complete copies of the documents they
purport to be. To the extent any of the Documents were not prepared by Seller, Seller is
making no warranty as to the accuracy or quality of work included therein.
185709650
18
For the purposes of this Section 14(a); the phrase "Seller's Actual Knowledge and words of similar
import shall mean the present, actual knowledge, without additional inquiry - or investigation being
taken, of Lynn Johnson (the "Representative"). The -foregoing reference to the Repteseintative'is
solely for the .purpose of,istiblishi '' the contractual 'standard for Sellees knowledge'., The
establishing
R4tesentative-is not und6itakffij,'ind does not havi, any personal obligation or liability to Buyer
,
in connection with this Agreement.
(ftmiyd.,The reoiesentations and warranties 4 Seller set forth herein
,shall be true as of the Effe6tiv'e*'Date 'and the date of Closing 'and shall survive Closing'for, a
penod of o'n'e'(1) year' (the "Waftanty'Exptratio.i Date"). 'Seller -shall notify Buyer in Writing
immediately if io repr
esentation beci6mes'untrue or misleading in light of intormation obtaihei
y Seller. after
*16 Effective ective Date. Notwithstanding anything in this Agreement to the contrary,
after Closing ihi.suoject to the Warranty Expiration Dateiboveand the terms of Section 18(e)
below, except for claims based upon fraud, the: maximuim agg'r'eilgate liability of Seller aind'the
,maximum, aggregate amount which may be awarded to the collected' by Buyer tmder'th'is
Agreement ofany'docu . rn I ents executed pursuant hereto or.inthe'6onnection herewith, will under
no circumstances whatsoev'e'ri exceed two percent (2%) Of the I Pur6ise Prii6 (nMiiximum'Seller
Liability")'., �This indimnificatioin'is in addition'io anyierniedies set korth in Section I I.
Buyer's Warranties and Remumte
To induce Seller to enter into this Agreement, to Buyer's knowledge represents, and wan -ants to
Seller:
manization. Buyer is a limited liability company, duly
organzed..,valjd1y4xish '-andtm,iood-standng;inck�-."laws of the State of �
Colorado,
W,a-.adil_ purchase a Property'
ad shall`as Of Clos�ng+,thave full power and
N
and delivery of this
a 0 .
' ' ' ' I
6
of or default under -any oralorwmen agreement which ft�iis a 060�; (B)9n
ton Qf 6j�tion with respect to which Bu
yer is
to which Seller is or May be
VX4 J t4 P.V; -W
(lIl)aatton. There is no pending or threatened litigation;
which would affect Bpyees abflity to,p!wf 9nn vnder this A gr p—em- eft,
(c)As-is Provision. THE PARTIES HEREBY ACKNOWLEDGE AND
AGAtt ",OOL"tOWS-S(A)'BUYER-,ii,AlSOPHISTICATED '--..'c*,BU- _Y_E_'R_4'J W"' 1�41§11F_A
Wr-M,THIS:IYPE;iDF,iiiOPMft'(B),tiCEPT-Ag�t;fAY�',IIE SOECEFIC,6L'l�Y4§E-TiF"0--RT—H-
lNS7RUMENTzDELIVERED .---0 -.0N,jkl�H4FLOF, SELLER AT CLOSING (THE
f BY, _ R.,
FITNESS FOR ANY PARTICULAR PURPOSE, COMPLIANCE WITH ANY LAW, RULE,
REGULATION -MERCHANTABILITY, MARKETABILITY,
-",-ORDM�.ORkREQUMEMM4T -,A
PROFITABILITY, OR SUITABILITY OF THE PROPERTY, AND SELLER DISCLAIMS ALL
19
185MM.2
(d)Except for the repres entat ions made by Seller as expressly provided
Section 14 above and in the deed delivered at Closing, effective on the Closing Date, Buyer and
Buyer's successors and assigns, hereby release Seller from, and waive any and all claims against
Seller resulting from the physical, environmental, economic or legal condition of the Property,
whether arising or accruing before, on or after the date hereof and whether attributable to events
or circurristances which have heretofore or may hereafter occur, including, without limitation, the
following (i) any and all liabilities, with respect to the structural, physical, or environmental
condition of the Property; (ii) any and all liabilities relating to the release of or the presence,
discovery or removal of any Hazardous Materials, or for, connected with or arising out ofany and
all claims or causes of action based upon any Envirownental La,ws, or any related claims or
causes of action or any other federal, state or municipal based statutory or regulatory causes of
action for environmental contamination at' in, about or under the Property; mid (iii) any implied
or statutory warranties or guan, mies of fitness, merchantability or any other stawtory or implied
%varranty or guaranty of any kind or nature regarding or relating to any portion of the Property.
IS.Addilknnl-Ewslmbs-,�" g, As provided in Section 3(b), from and after Closing,
Buyer agrees to pay to Seller in the manner specified below the amount of the Additional Purchase
Price, as follows:
nil
1,m,mMdMM=
77
Notwithstanding anything in the foregoing to the contrary„ the Total Costs shall not include any
the foregoing expenses to the extent funded by or otherwise reimbursed by the District or ar
other public financing districts including or related to the Property.
W Ra=iuLAs1di&naU.uvJzn-Ed&&-
rnei nllh- The Additional Purchase Price for cacti Ir
due
Seller shall be Paid at the Retail Closing with respect to each Home conveyed in the project b
Buyer to a hornebuyer. Along with inch payment, Buyer shall deliver to Seller an accounting in, th
Price dtie Seller with respect to each Home conveyed in the Project by Buyer during the prior year.
(H)LiLial Sale and Recoqq:iLiaflog, Within ninety (90) days
after the close of escrow for the sale of the last Horne in the Project (the "'Final Sale:"),
Buyer shall complete and submit to Seller an accounting consistent with the details of the
calculation Of Additional Purchase Price in this Agreement together with a check made
payable, to Seller in the arriount of the balance of any Additional Purchase Price remaining
payable for the Project. If the final accounting or any Audit (as defined below) shows any
deficiency in arnounts duce to Seller, or any overpayment by Buyer, such deficiency shall be
4nniediately paid by Buyer or overpayment reinibursed by Seller, as'the c&w. may be.
Notwithstanding anything to the cont M� herein, the parties acknowledge and agree that
the Additional Purchase price is a material consideration in Sellers agreement to sell the
Property to Buyer, and Buyer agrees that it shall proceed with development of the Project
and the sale of Hornes with good Faith and commercially reasonable efforts.
I (d)Financial Records and Stat-ment-s of Buyer, Buyer shall keep and
maintain, or cause to be kept and maintained, accurate financial books mid records for the: Pr►aject
in accordance witli Buyer's normal accounting principles (collectively, the "Financial Records"),
21
1957096.5.2
Notwithstanding anything in the foregoing to the contrary„ the Total Costs shall not include any
the foregoing expenses to the extent funded by or otherwise reimbursed by the District or ar
other public financing districts including or related to the Property.
W Ra=iuLAs1di&naU.uvJzn-Ed&&-
rnei nllh- The Additional Purchase Price for cacti Ir
due
Seller shall be Paid at the Retail Closing with respect to each Home conveyed in the project b
Buyer to a hornebuyer. Along with inch payment, Buyer shall deliver to Seller an accounting in, th
Price dtie Seller with respect to each Home conveyed in the Project by Buyer during the prior year.
(H)LiLial Sale and Recoqq:iLiaflog, Within ninety (90) days
after the close of escrow for the sale of the last Horne in the Project (the "'Final Sale:"),
Buyer shall complete and submit to Seller an accounting consistent with the details of the
calculation Of Additional Purchase Price in this Agreement together with a check made
payable, to Seller in the arriount of the balance of any Additional Purchase Price remaining
payable for the Project. If the final accounting or any Audit (as defined below) shows any
deficiency in arnounts duce to Seller, or any overpayment by Buyer, such deficiency shall be
4nniediately paid by Buyer or overpayment reinibursed by Seller, as'the c&w. may be.
Notwithstanding anything to the cont M� herein, the parties acknowledge and agree that
the Additional Purchase price is a material consideration in Sellers agreement to sell the
Property to Buyer, and Buyer agrees that it shall proceed with development of the Project
and the sale of Hornes with good Faith and commercially reasonable efforts.
I (d)Financial Records and Stat-ment-s of Buyer, Buyer shall keep and
maintain, or cause to be kept and maintained, accurate financial books mid records for the: Pr►aject
in accordance witli Buyer's normal accounting principles (collectively, the "Financial Records"),
21
1957096.5.2
provided that such Financial Records-mustPe'!ceship1tqnaonireawnably-ne_spry to
calculate Net Profits 9;o -wW. 866ton15(h). e16'Fifigc all w6lu eiall
supporting leand
d cosiLqf sale and shall be maintained by Buyer for
g documentation reho
dire-e (3) years after We final Sale. WitWithm ten '(lb)bZ'smcss days after the written request of
Final Sale, Buyer's books and records for the Project shall be audited by an independent certified
p.uNic; accountant_
W11licensed in,the!State*of C616"rad6-nukueeable to Seller and Buyer for the
d.- A Psl_�,—1 to . - l -akrYA!:%,
Seller for the Project (df46 "AWV).The XbidiOiball Ribifidirig uponA6�patiis-. BW& "FiEW6
available to the auditor at Buyer's business office, within ten (10) business days after notice of
Audit, all Of the books and records of Buyer for the Project which such auditor deems necessary
or desirable for the purpose ofp!
ntming�Lhe.-Audit.,O��y
a #eficiencyNin amounts due-twSellerqr
any overpayment by Buyer, as aM�1y'W612"M�2i" NQMi1Mbi`edWii i�06yii4iror
J`- ;A
klilorlrreelamo
957yaa2 " - I I U , TM 0*.-:
exchange britrans&ubf kll,9Frqgy
'k.co�veyAi��, 6 be an "Early
portion Of the Property by Buye*rpT_ior_to_ a Ri"I diiiug'Aill' be deemed to "
Transfer"; provided, however, an Early Transfer shall not be deemed to have occurred by reason
of the fact that such portion of the Property (the "Early Transfer Property") is encumbered, by a
first mortgage on the Property that was funded by a1ender not affiliated with Buyer to provide
acquisition. development and construction financing for, the Property.. Buyer shall not make an
Early Transfer of a portion of the Property to any patty except in accordance with the terms
hereof, At least-30 days prior to the contemplated date of an Early Transfer, Buyer shall give
written notice to Seller ("Buyer's Early Transfer Notice!') of the proposed Early Transfer and
deliver to Seller any information reasonably requested by Sellermith respect to the terms of the
proposed Early Transfer and the proposed transferee. Prior to the closing Of any Early Transfer.
Buyer shall record in the real property records for the Early Transfer Property in Larimer County,
Colorado a covenant in form'reasonably acceptable to ScIiiiproyidirig, for the payment, of the
Additional Purchase Price to Seller in accordance with this Section 15 upon the occurrence of a
Retail Closing with respect to -all or any portion of the Early Transfer Property.
16. Ancillm Co"Pwis. ,
(a)5aqg1al: Taxing Pistrict Disclosuce. NOTICE: In accordance with the
provisions of C.R.S. 98-35.7-101(1), Seller provides the following disclosure to Buyer:
SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION
INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX
LEVIES ON THE TAXABLE PROPERTY' WITHIN SUCH DISTRICTS. PROPERTY
OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL
LEVIES AND TAX TO SUPPORT THE SERVICING OF SUCH DEBT WHERE
CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT
TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL
K03
LEVIES: BUYERS SHOULD INVESTIGATE THE SPECIAL TAXING DISTRICTS IN
WHICH THE„PROPERTY LOCATED BY CONTACTING THE couNTY TREASURER,
BY,,REVIEWING THE CERTIFICATi. E OF'TAXES DUE'1?OR THE PROPERTY, AND
BOBTAIMNG FURTHER,INFORMATION FROM ;THE BOARD OF COUNTY
COMMISSIONERS, THE COUNTY CLERK AND RECORDER, OR THE COUNTY
ASSESSOR.
(Rater Disclosure. In accordance with the provisions Of C.R.S.
98-35.7-104, Seller provides the following disclosure to Buyer.:
THE SOURCE OF POTABLE WATER FOR THIS REAL ESTATE IS A WATER
PROVIDER, WHICH CAN BE CONTACTED AS FOLLOWS:
NAME: City of Fort Collins
ADDRESS: Utilities Customer
Service 222 Laporte
Ave.
Fort Collins, CO 80524
WEBSITE• https://www.fcgov.com
TELEPHONE: 970-212-2900
SOME WATER PROVIDERS RELY, TO VARYING DEGREES, ON NON RENEWABLE
GROUND WATER. YOU MAY, ,WISH, TO CONTACT +YOUR PROVIDER TO DETERMINE THE
LONG-TERM SUFFICIENCY OF PROVIDER'S WATER SUPPLIES.,
(c)Disci sure e? Oil and Gas Mtivity, The following disclosure is included in
accordance with C.R.S. 38-35.7-108:
THE SURFACE ESTATE OF THE PROPERTY MAY BE OWNED SEPARATELY FROM THE
UNDERLYING MINERAL ESTATE, AND TRANSFER OF THE SURFACE ESTATE'MAY NOT
INCLUDE TRANSFER OF THE MINERAL' ESTATE. THIRD' PARTIES ' MAY , OWN' OR LEASE
INTERESTS IN OIL,-.GAS,,OR OTHER MINERALS UNDER -THE SURFACE, AND THEY„MAY
ENTER AND USE THE SURFACE ESTATE TO ACCESS THE MINERAL ESTATE. THE USE OF THE
SURFACE ESTATE TO ACCESS THE MINERALS MAY BE GOVERNED BY A SURFACE USE
AGREEMENT, A MEMORANDUM OR OTHER NOTICE OF WHICH MAY. BE RECORDED WITH
THE COUNTY CLERK AND RECORDER.
THE OIL AND GAS ACTIVITY THAT MAY OCCUR ON OR ADJACENT TO THIS PROPERTY MAY
INCLUDE, BUT IS' NOT LIMITED TO, SURVEYING, DRILLING, WELL. COMPLETION
OPERATIONS, STORAGE, OIL AND GAS, OR PRODUCTION FACILITIES; PRODUCING WELLS,
REWORKING OF CURRENT.WELLS, AND GAS AND PROCESSING FACILITIES.'
THE BUYER IS ENCOURAGED TO SEEK ADDITIONAL INFORMATION
REGARDING OIL AND GAS ACTIVITY ON OR ADJACENT TO THIS PROPERTY, INCLUDING
DRILLING PERMIT APPLICATIONS. THIS INFORMATION MAY BE AVAILABLE FROM THE
COLORADO OIL AND GAS CONSERVATION COMMISSION.
23
19570965.2
(d) :Interstat and Sates Full -Dic -los urA Act, and Colorado Subdivision
Develo2m Act Exemptions. It is acknowledged and agreed,.by, the Parties. that the sale of, the
Property,will be exempt, from the provisions of the Fe1.deral interstate Land Sales Full Disclosure Act
under the exemption applicable to sale or lease of property 'to any person who acquires such
property for the purpose of engaging in the business of constructing° residential,° commercial or
Industrial buildings or fay the'purpose'of`resale of'such property to persons'erigaged `in'such
business. Buyer hereby represents and warrants to Seller that it is acquiring the Property for such
purposes. It is further acknowledged by the Parties that the sale of the Property will be exempt
under the provislori's'of the'Cotorado Subdivision Oevelopers Act under"the exemption applicable
to transfers between developers. Buyer' represents and Warrants to Seller that Buyer Is acquiring
the Property for the purpose of participating as the owner of the Property in the development,
promotion and/or sale of the Property and ponions thereof.
RVAW-77Mt7.
(a)Confidential Information. Each Party shall, and shall cause its employees,
agents and representatives ("Representatives") to,I keep confidential and refrain
from using, except in connection with this Agreement. all "Confidential Information" of the other
Party. For purposes of this Agreement, "Confidential Information" means, with respect to a Party
("Disclosing Party") any and all such information of a confidential or proprietary nature furnished
(whether; in. written or oral form', electronically stored 'or atherwise)' to' .the other Party (the
"Recipient") or the -'Recipient's Representatives,' whether before; on or 'after tite date' hereof,
including without limitation, any analyses, notes; data, compilations, sumniaries,1orecasts, studies
or other documents and materials prepared in connection with their review of, or interest in,
entering into this Agreement;- or their.:.performance .of . any :Of the' services or obligations
contemplated hereunder, that is identified as confidential at the time of disclosure, or the Recipient
knows it is intended to remain confidential, due to its nature or the circumstance under which it is
disclosed. The term. "Confidential ; Information" will not however, include information of a
Disclosing Party, that (i)was. or becomes,publicly available other than as a result of a disclosure
directly or indirectly by, or on behalf of the Recipient or its Representative; (ii), was or becomes
available to the Recipient on a non -confidential basis? (iii} was rightfully in the possession of the
Recipient prior to disclosure by & Disclosing Party; or (iv) was developed independently without
access to the Confidential. Information:
_(b)Hon:Djsclosura. Each recipient will only disclose the Confidential
Information Of the Other` Party• to those Representatives 'of such recipient who have 'a need to
know such information in connection with the execution `and performance of the Parties'
respective rights and obligations under this Agreement. Anyone to whom any Confidential
Information is'disclosed shall be (a) advised of the existence of this Section 17 of this Agreement
and of such recipient's obligations hereunder, and shall agree to be bound by the terms hereof to
the same extent as if they were parties hereto, or (b) bound under a written agreement (including
a pre-existing written agreement) or other legal,.contracwal or fiduciary,obligatian to protect the
Confidential Information from unauthorized use and disclosure..Iri any event, each Patty shall, at
its sole expense, take all commercially reasonable measures to restrain its Representatives from
prohibited or unauthorized disclosure, distribution or'use of the Confidential Information:
(e)I,egejbc.Reauured Mwla ure.: The Seller's obligations under this.Section
17 are to the extent permitted by the Colorado Open Records ,Act ("CORA"). In the event a
Recipient or any of its Representatives is required by law, regulation or court order to'diselose
any of the corresponding Disclosing Party's Confidential Infornation, such Recipient shall
24
promptly notify the Disclosing Party in writing prior to any party making any such disclosure so
that the Disclosing Party, at its sole expense, might seek a protective order or.other appropriate
remedy, from the proper authority. Each Recipient agrees to cooperate with the corresponding
Disclosing Party in seeking any such order or other remedy. Each Recipient further. agrees that if
the corresponding Disclosing Party is not successful in precluding the requesting legal body or
authority from requiring the disclosure of any Confidential Information. such Recipient or its
Representatives will furnish only that portion of the Confidential Information that it is legally
required to be disclosed and will exercise its reasonable best efforts to obtain reliable assurances
that confidential treatment will be accorded the Confidential Information in such proceeding.
(d)Colorado Qmn Records Act It is acknowledged. that the Seller is subject
to the requirements of CORA and Buyer shall assist and cooperate with the Seller, (on request and
at each Party's own expense) tui enable the Seller to comply with
the aiformation disclosure
requirements imposed by CORA.. Where a Party receives a request for Confidential Information it
shall notify the other Party in writing within three (3) business days Of receipt of such request for
information.
(i)The Parties agree and acknowledge that Seller shall be responsible
ning for determiin its absolute and sole �discretio'n liether'the Confidential Information held by
it is exempt' from disclosure under CORA or ' is'to be disclosed in 'response ` to a' request for
infomiatian. . ,
(ii)If Seller determines it is obligated to disclose information in
response to such request for information, it: shall notify Buyer of that decision as soon as
reasonably possible, and in any event, at least two (2) business days before disclosure and give
due consideration to any objections, without prejudice to the Seller's rights,
(iii)Notwithstanding other notification provisions in this Agreement,
the notifications required by this Section may be made, by any method reasonably calculated to
ensure receipt, -including electronic mail.
(e)press Release. Notwithstanding anything in the foregoing to the contrary,
Seller and Buyer shall reasonably cooperate to draft and issue a mutually agreeable press release
announcing the proposed; sale of the Property following the execution of this Agreement. Seller
agrees to coordinate with and afford Buyer the opportunity to participate in 'the press release.
18. Gengml
(a)Entire r8. This Agreement constitutes the final and entire
Agreement between the Parties and they shall not be bound by any terms, covenants, conditions,
representations or warranties not expressly. contained herein. ibis, Agreement may not be
amended except by written instrument executed by both Parties.' :.
(b)par*ial Joy, idity. If any one or more of the provisions contained in this
Agreement shall for -any reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforcesbility shall; not affect any other provision hereof, and this
Agreement shall be construed as if such invalid,. illegal or. unenforceable, provision had never
been contained herein..
(c)Tirna a of the Essence. Tune is of the essence of thiiAgreeinent and the
performance ofthe, terms and conditions hereof.
(d)Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective legal representatives, successors and
assigns. Buyer shall not have the right to assign the Agreement without Seller's prior written
consent, which consent may be given or withheld in Seller's reasonable discretion; provided that
25
18370965.2
Buyer shall in no event be released from any of its obligations or liabilities hereunder as -a result
of any ; such . approved assignment. Notwithstanding - the foregoing to_ the contrary,, Buyer is
permitted to assign this Agreement, in whole or,in part, without Seller's consent to an Affiliate of
Buyer, provided that, (i) assignee assumes Buyer's obligations under
ISS71Y652
this Agreement pursuant to a written agreement in, form and substance reasonably' acceptable to
Seller; (ii) Seller receives a copy of such assignment and assumption agreement on or before three
(3) business days prior to Closing and reaffirms all of the representations and warranties Of Buyer
herein and (iii) Buyer shall remain liable for,land shall not be released from the performance of,
Buyer's obligations' under this Agreem`ent'after such assignment. Whenever reference is made in
this Agreement to Seller or Buyer, such reference shall include the successors and assigns Of such
party under this Agreement.' For pumposes Of this Section, "Affiliate" shall mean an -entity that
directly or indirectly through one or more intermediaries' controls, or is controlled by, of is under
the common control with, the Buyer.
(e)_G.MMMMW4_1_Im_rnp_iZ No term or condition Of this Agreement shall
be construed or interpreted •asIa waiver, rexpress or implied, of any Of the immunities; rights,
benefits, protections, or other provisions, of the Colorado Goverhmental Immunity Act, C.R.S.
24-10-101, et seq., or the Federal Tort Claims Act, 28 U.S.C. 1346(b) and 2671 , et seq., as
applicable now or, hereafter amended.
(D Choice or L.aw. Colorado law, and rules and regulations issued pursuant
thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any
provision included or incorporated herein by reference which conflicts with said laws, rules, and
regulations shall be null and void. Any provision incorporated herein by reference which purports
to negate this Section 18(f) in whole or in part shall not be valid or enforceable or available in any
action at law whether byway of complaint, defense, or otherwise. Any provision rendered null and
void by the operation of this provision shall not invalidate the remainder of this Agreement, to the
extent capable of execution.
(g}ndi g Arbitration Prohibited. The State of Colorado does not agree to
binding arbitration, by' any extra judicial body or person. ;Any provision to the contrary in this
Agreemenfor incorporated herein by reference shall be null and void. , • ' .
(h}Emolovee Financ,ipej lnterest. C.R.S. 24718-201 and 24-50507. The
signatories aver that to their knowledge, no employee of the State has any personal or beneficial
interest whatsoever in the service or property described in this Agreement.
(i)No VioWon'of Law, The signatories aver that they are familiar with
C.R.S. 18-8-301, et seq. (Bribery and Corrupt Influences) and C.R.S. 184- 01, et seq. (Abuse of
Public Office) and that no violation of such provisions is present in this Agreement.
G) Use of "Colorado State niyc6ily'",, " .SU1': or "Hug ea S i gym"
Buyer may only state that the Property is located at the former Hughes Stadium site for the
pmlrpose of providing information as' to the general location of the Property in advertisements
concerning the Property or to refer to the Property as the "Hughes Subdivisibn". Except as
hereinabove permitted, Buyer agrees that it shall not use or. allow the use of the name "Colorado
State University",'CSV' or "Hughes Stadium"" in any manner to name, designate, advertise, sell or
develop the Property or in any manner or connection with the operadons'or businesses located or
to be located on the Property. The.restriction in this Section ISO) shall survive Closing.
26
(k)Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one and the same
instrument.
(l)JW3dkIWThe headings of the Sections, subsections,, paragraphs and
subparagraphs hereof are, provided for convenience of reference only, and shall not tvconsidered
in construing their contents.
(m)Each writing or plat or plan referred to herein as being attached hereto as
an exhibit or otherwise designated herein as an exhibit is incorporated herein by reference and
made a part hereof. The following exhibits are attached hereto:
Exhibit A
Legal Description of Property
Exhibit
Escrow Agent's Standard Escrow
B
Provisions
Exhibit
Form Deed
C
Exhibit
Closing Documents
D
Exhibit
Permitted Exceptions
E
Exhibit
Additional Obligations of Seller
F
Exhibit
Notice Addresses
G
Exhibit H
Additional Purchase Price Schedule
(n)Tune Periods. Any and all references in this Agreement to time periods
which are specified by reference to a certain number of days refer to calendar days, unless
"business days" is otherwise expressly provided. Therefore, if (a) the last date by which Closing is
permitted to occur hereunder, or (b) any date by which a Party is required to provide the other
Party with notice hereunder, occurs on a Saturday or a Sunday or a banking holiday in the
jurisdiction where the Property is located, then and in any of such events, such applicable dates
shall be deemed to occur, for all purposes of this Agreement, on that calendarday which is the
next, succeeding day, which is not a Saturday, Sunday or banking holiday.
(o)No Partnership. Nothing in this Agreement shall be deemed in any way to
create between the Parties any relationship of partnership, joint venture or association, and the
Parties disclaim the existence thereof.
(p)Escrow Provisions. The Escrow Agent's actions and the Parties'
obligations in regard to any escrow shall be governed by Escrow Agent's standard escrow
provisions attached as Exhibit B to the extent that they are not inconsistent with this Agreement.
(q)M aivers. No Party shall be deemed to have waived the exercise of any
right which it holds hereunder unless such waiver is made expressly and in writing (and no delay
or omission by any Party hereto in exercising any such right shall be deemed a waiver of its
27
W70M.s
future exercise). No such waiver made as to any. instance involving the exercise of any such right
shall be deemed a waiver as to any other such instance, or any other such right..
(r)WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT
PERMITTED BY LAW,, SELLER AND BUYER EACH HEREBY WAIVES RIGHT TO
TRIAL BY JURY m ANY ACTION OR PROCEEDING ARISING OUT OF THIS `
1857W65.2 .' .
29
AGREEMENT AND THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO.
(s)Farsimile and PDF Copies. Facsimile copies or PDF copies sent by email
of the Agreement and any amendments hereto and any signatures thereon shall be considered for
all purposes as originals..
(t}Memorandum Ol AgLeement. Upon delivery of the Suitability
Notice by Buyer, Seller shall be obligated to record a Memorandum Of Purchase and Sale
Agreement (the "Memorandum`) in the real property records of Lwimer County, Colorado,
evidencing. (i) Buyer's interest in the Property, and (ii) Buyer's and/or its successor's obligation to
pay the Additional Purchase Price to Seller pursuant to Section 15 above, in a form to be negotiated
and reasonably and mutually acceptable to the Parties prior to expiration of the Feasibility Period;
provided that, prior tovecording the Memorandum, Buyer will deliver a duly executed Release of
the Memorandum to the Title Company to be held in escrow, and recorded by the Title Company in
the event Of termination of this Agreement or default by Buyer under this Agreement. After
Closing. Seller shall be obligated to release the Memorandum Of record by delivery of a quit claim
deed or other evidence of termination satisfactory to the title company for any Lot subject to a
Retail Closing immediately upon payment -by, Buyer to Seller of the Additional Purchase Price
applicable to such Lot pursuant to Section 5 above.
[Signatures on following page.]
29
IN WITNESS WHEREOF, the Paities hereto have executed under seal this Purchase and Sale
Agreement as of the Effecdve Date.
185709652
SELLER:
THE BOARD OF GOVERNORS OF THE
COLORADO STATE UNIVERSITY
SYSTEM, acting by andli through
COLORADO STATE UNIVERSITY
By 64-17
. . . ...........
ralt,
Dam
318 Administration Building
Colorado S,tate Univers ty
Fort Collins, CO 800
LEGAL REVIEW:
Office of the General Counsel
Colorado State University System
01 Administration Building
Fort Collins, CO 80523-0006
RE
I
18570965.2
LENNAR COLORADO, LLC, a Colorado limited
liabil•ty pmpany
Name: me. J. t S5
Title: Vice President
31
. 'The -Undersigned joins in the execution of the foregoing Agreement for the sole
purpose of agreeing to hold 'and,apply,the Deposit subject to and in accordance with the
terms of the foregoing Agreement.
sas7was.s
32
ESCROW AGENT:
e: �. _
e:
gy
Nam
e:
Title:
Date:
AGREEBENT OF SALE
by and between
THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY
SYSTEM, acting by and through COLORADO STATE UNIVERSITY, as Seller and
LENNAR COLORADO, LLC, as Buyer
EXHIBIT
Beginning at the East quarter comer (E 114) of Section 20, Township 7 North, Range 69 West of the
Sixth Principal Meridian; thence South 00014' West, 1390.9 feet; thence South 87059' West,1473.5
feet; thence South 78025' West, 1214.3 feet, thence North 00 028' East, 245 1.0 feet; thence North
57044' East 66.1 feet, thence on a regular curve to the left with a radius of 336A8 feet, 149.4 feet;
thence North 32017' East, 0.2 feet, thence on a regular curve to the left with a radius of 240.99 feet,
133.2 feet; thence North 00027' East, I I 1.2 feet; thence on a regular curve to the right with a radius
Of 236.48 feet, 99.5 feet; thence North 86023' East,_2437A feet; thence South 00014' West, 1391.7
feet to the Point of Beginning, subject to existing public road rightof--way running through the
Southeast comer.
EXCEPT that portion conveyed to the City of Fort Collins in Deed recorded November -19, i 998 at
Reception No. 99101735, described as follows: Considering the East line of the Southeast Quarter of
said Section 20 as bearing SO00,14' 18" W from a aluminum cap in monument box at the East
Quarter comer. of said Section 20 to a aluminum cap in a monument box at the Southeast comer of
said Section 20 and with all bearings contained herein relative thereto; Coinmencpig at the East
Quarter comer of said Section 20; thence along said East line, S 00014' 1,8" E, I, 153.43 feet to the
Point of Beginning; thence continuing alorig'said East line, S 00014' i 8" W, 237.64 feet to a point on
the South line of the North half of said Southeast Quarter; thence along said South line, S 88000*04"
W, 1,473.03 feet; thence N 7805333" E,1,501.23 feet to the Point of Beginning, County of Larimer,
State of Colorado.
ia57w65.z
33
M
by and between
THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY
SYSTEM, acting by and through COLORADO STATE UNIVERSITY, as Seller and
LENNAR COLORADO, •LLC, as Buyer
EXHIBIT
F;scraw Provisions!,
18uyer and Seller, jointly and severallk'heieby_agree to indemnify the Escrow Agent and
hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in
equity, or any other expense, fees or charges of any character. or nature, which it may incur or with
which it may be threatened by reason Of its acting as Escrow Agent under this Agreement,
including, without limitation, attorneys' fees and the, cost oft defending any actions, suit or
proceeding or resisting any claim:
"; .
2. ' - ' In'the event of a dispute between the Parties as to the disposition of the Deposit or
any other escrow monies held by the Escrow Agent or actions taken by or contemplated by
the Escrow Agent, Buyer and Seller agree to settlement of such dispute by the methods
more specifically contained in! the Agreement of Sale. Immediately upon receipt of written
notification to 1 the Escrow Agent of an escrow funds dispute, which cannot i be resolved
bctween the Parties, including any contract default having occurred due to failure to close,
Escrow Agent agrees to notify the Parties that unless the Parties mutually select an
arbitrator within five (5) business days of notification, Escrow Agent will submit the matter
to AAA to settle the dispute as quickly as possible: The decision and awarding of any funds
by the Arbitrator shall :W final and binding upon the Parties hereto. Within three (3)
business days after the Arbitrator has`resolved the dispute and rendered written directions,
the Escrow Agent shall'Pain 'o'ver any ;escrow' monies together with any interest eirned
thereon to the' appropriate party' due' all or part' Of the ' funds ' set � forth in the writt"en
Alternatively, in the event of any controversy involving the Deposit or,any other
escrow funds, the Escrow Holder may, upon agreement by Buyer and Seller, charge one-half of its
fees and costs to Seller and one-half of its fees and costs to Buyer, and then place all or portions of
the Deposit or any other escrow funds in the registry of any court of competent jurisdiction, and
upon payment of such funds in to the court registry, Escrow Holder shall be released from all further
liability in connection with the funds delivered.
3. The Escrow Agent shall not be bound by any other agreement whether or not it has
knowledge of the existence thereof or of its terms and conditions, and is required only to
hold the Deposit as herein set forth and to make payment or other disposition thereof as
hereinbefore stated.
4. Escrow Agent shall not be liable for any mistakes of fact, or errors of judgment, or
for any acts or omission of any kind unless caused by the willful misconduct or gross
negligence of Escrow Agent.
5. Escrow Agent may resign upon ten (10) days written notice to the Parties to their
addresses set forth herein. If a successor escrow agent is not appointed within a fourteen
(14) day period following such resignation, the Escrow Agent may petition a court of
competent jurisdiction to name a successor. The costs of such action shall be paid by Seller
and Buyer on an equal basis, and shall be subject to the provisions of Section I hereof.
34
AGREEMENT QF SALE
by and between
THE BOARD OF GOVERNORS OF, THE COLORADO STATE UNIVERSITY
SYSTEM, acting by and through COLORADO STATE UNIVERSITY, as Seller and
LENNAR COLORADO, LLC, as Buyer
EXHIBIT C
UPON RECORDING RETURN TO:
Rebecca W. Dow, Esq.
Holland & Hart LLP
P.O. Box 8749
Denver, CO 80201
SPECIAL WARRANTY DEED
THIS DEED. dated . 20 . between THE BOARD OF GOVERNORS OF THE
COLORADO STATE UNIVERSITY SYSTEM, acting by and through COLORADO
STATE UNIVERSITY ("Grantor"), whose address is c/o Colorado State University Research Foundation,
2537 Research Blvd, suite 200, Ft. Collins, CO 80525; and LENNAR COLORADO, LLC. a Colorado limited
liability company ("Grantee"), whose address is 9193 S. Jamaica Street, 4th Fl., Englewood. CO 80112.
WITNESS, that Grantor, for and in consideration of the sum OfDollars
(s ), the receipt and sufficiency of which is hereby
acknowledged, does hereby GRANT, SELL and CONVEY unto Grantee all of the real property
described on El Ik' , attached hereto and incorporated herein by this reference, located in the
County of Larimer, State Of Colorado, together with improvements and appurtenances, belonging or
in any way appertaining and the reversion and reversions, remainder and remainders, rents, issues,
and profits thereof; and all the estate, right, title, interest. claim, and demand whatsoever of the
Grantor, either in law or equity, Of; in, and to the above real property (the "Property").
Grantor does hereby covenant and agree that it shall WARRANT AND FOREVER DEFEND
the title to the Property for the benefit of Grantee against all persons claiming by, through or under
Grantor, subject to the matters described on Ebbibil A attached hereto, and incorporated herein by
this reference.
M?M-u
IN WITNESS WHEREOF, Grantor has executed this deed to be effective on the date set
forth above.
GRANTOR:
35
THE BOARD OF GOVERNORS OF THE
COLORADO STATE UNIVERSITY
SYSTEM, acting by and through
'COLORADO STATE UNIVERSITY'
Name:
Its:
c-2
STATE OF COLORADO
) SS.
COUNTY OF
The foregoing instrument was acknowledged before me this day of
36
20—, by as the Board of Governors of the
Colorado State University System, acting by
and through Colorado State Uni versity.
WITNESS my hand and official seal.
My Commission Expires:
1 SEALI
1857%5.2
Notary Public
c-3
Exhibit A
to
Special Warranty Deed Legal Description of Property
(To be inserted prior to Closing]
37
77,71117M
Exhibit B to
Special Warranty Deed
Permitted Exceptions
JAXES FOR THE YEAR 20 -AND SUBSEQUENT YEARS. " :
_._._ _a. �T4 be inserted prior to Closing]
38
., . C.5
by. and between
THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY
SYSTEM, acting by and through COLORADO STATE UNIVERSITY, as Seller and
LENNAR COLORADO, LLC, as Buyer
(a) If required by Title Company, a certified copy of the resolution Of Seller's Board of
Directors authorizing and approving this Agreement and the transactions
contemplated herein and the execution of the Agreement and the Closing documents;
(b) A special warranty deed in form attached as Exh bi,..C, which conveys fee simple
title to the Property;
(c) An assignment, without warranty, of Se11er's rights, title and interest, if any, in all
permits, plans, licenses, approvals, certificates, entitlements, development
agreements and related items included within the Documents and, in each case, to
the extent assignable;
(c) A Foreign Investment in Real Property Tax Act ("FIRVTA") certification in conformance
with the requirements of FIRWA;
(e) All consents which may be required from any third person or entity in connection
with the sale of the Property;
(f) The Seller's Affidavit in the form required by the Title Company and reasonably
acceptable to the Seller; and
(g} Such other documents or instruments as may be required by other provisions of this
Agreement or reasonably required by Buyer to effectuate Closing.
All of the documents and instruments to be delivered by Seller pursuant to this Exhibit shall
be in form and substance reasonably satisfactory to counsel for Buyer.
Closing Documents to be Delivered to Seller
(a) The Purchase Price;
(b) If required by Title Company; satisfactory evidence that the person or persons
executing' the Closing" documents'on behalf of Buyer have full -right, -power and
authority to do so;
i asrwss.x
(c) the Real Property Transfer Declaration required by applicable Colorado law;
(d) All consents which may be required from any third person or entity in connection
with the purchase of the Property;
(e) The Buyer's Affidavit in the form required by the Title Company and as
reasonably acceptable to Buyer;
M Such other documents or instruments as may be required by other provisions of this
Agreement or reasonably required by Seller to effectuate Closing.
All of the documents and instruments to be delivered by Buyer Ipursuant to this Exhibit shall
be in form and substance reasonably satisfactory to counsel for Seller.
by and between
THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY
SYSTEM, acting by and through COLORADO STATE UNIVERSITY, as Seller and
LENNAR COLORADO, LLC, as Buyer
ISSM96ss
EXHIBIT E
Permitted Exceodans
[to be inserted during Feasibility Period]
LTAXES FOR THE YEAR 20_ AND SUBSEQUENT YEARS.
Buyer's Initials
1es7tB6s.2
Date Agreed:
Seller's Initials, AGREEMENT QF SALE
by and between
THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY
SYSTEM, acting by and through COLORADO STATE UNIVERSITY, as Seller
y
and .
LENNAR. COLORADO,.LLC, as Buyer
Additional Obligations of Seller
(Insert, if any during the Feasibility Period.]
by and between
THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY
SYSTEM, acting by and through COLORADO STATE UNIVERSITY, as Seller and
LENNAR COLORADO, LLC, as Buyer
F,XHIF3IT G
Notiga
Any notice to be given to, any Patty hereto in connection with this Agreement shall be in writing
and shall be deemed received (a) on the date delivered if hand delivered by receipted hand
delivery or by electronic transmission, and (b) two (2} days after postmark.if sent postage prepaid
by certified or registered mail, return receipt requested.. Notices to the Parties shall be sent to their
addresses set forth below. Either Party, by written notice to the other, may change its address to
which notices are to be sent. The Parties shall copy Escrow Agent on all notices sent hereunder,
but failure to notify Escrow Agent shall not be deemed a failure of notice to a Party to whom
notice has been given. Any default notice under this Agreement sent by electronic transmission
must be followed by the delivery of a hard copy.
+yuyees Address: Lerner Colorado, LLC
9193 S. Jamaica Street, 4th Fl.
Englewood, CO 801 12
Attn: Daniel J. Nickless, Land President
Telephone: 303-486-5063
Email: daniel.rtickless@lennar.com
With copy to: Rebecca W. Dow, Esq.
Holland & Had LLP
555 17th Street, suite 3200
Denver, Colorado 80202
Telephone: 303-295-8413
Email: rdow@hollandhart.com
's Address Fidelity National Title Company
3500 John F. Kennedy Pkwy., Ste. 100
Fort Collins, CO 80525
Attention-. Julie Norris
Telephone: (970) 212-7750
Email: inorrisf fnLgom
Seller's Address: Colorado State University c/o Colorado State Uni versity
Research Foundation 2537 Research Blvd., Suite
200
Fort Collins, CO 80526
G-1
19"0 ss.s
With a CODV
Telephone' Entail• r1 '" _
Marc C. Diar iant, E 4.
Brownstein Hyatt Farbei Schieck, LLP
41017th A., 22nd Floor _
Denver, CO 802024b *
Telephone: 303-223-1 132
Email: mdiamant@bhfs.com
ISSM65.2
AQR,U,, MEN 'ILMAU
by and between
T[IE BOARD OF GOVERNORS Off" TI IE COLORAD0 STAIT UNIVERSI"IY
CALCULNUON OF ADDITIONAL PURCITASE PI IC
Est No. . . .... . ..........
Closing Date:
. 7 .........
by and between
THE BOARD OF GOVERNORS OHE COLORADO STAITI UNIVERSITY
SYSTEM, acting by and through COLORADO STATE LJNIVERSITYas Seller
and
A-QRUMEXLD1, -5'�'
fi 'k,jq,.2r.L,egqr ear s.
(See attached.]
M
ME'VOCABLE STANDBY LETTER OF CP.Ef)rr NO. FGAC=0(X
BENMOARY,
APPUCAP*
LC AMOUNn LJSLR SXX)O(,,XX (AMOMfTIN WORDS U'S DOLLARS)
EXPIRATION DATE: (LAC AT OUR MUNTP6
RE:
GENTLEMM
VIE HEREBY ESEABUSH OUR IRREM-ABLE STANDBY LETTER Or
CREDrT NO, FGAC.xxxxx IN YCAJR FAVOR P THF REQUEs,r AND FOR litlkktTr'N1iT70E'XCFFI)�MiE(X.'AMOUhrr
THL ACCCUMr Or [APPUCANT) M AN AGGREGATE AMOUNT NOT TO ),jjjjjjjjjjjjjjT
EXCEEDTHE
THIS LETTER OF CREDIT IS AVAILABLE BY YOUR DRAFr(S) DRAWN AT SI DULY
AND MANUALINSIGNED AND MARKED: "DRAWN UNDER
LETTER 0FCREDtT NO, FOAC,.XXXM DAI"ED MOMMI XXu z0XX** WHEN A
OF' CREDIT AND .ALL ORIGINALAMENDMENT5, IF ANY. ANDTHE FOLLOWING Dr,)CUMENT(S);
BF.NFFiCIARYas CERTIFICAM DULY AND MANUALLY SIGNED AND DATED BY AN AUTHORIZED OPPICER SIGNING A5
SUCH ON rrS LETTERHEAD READING EXACTLY AS FOLLOWS-
'MTHE AMOUNT REPRESENTED BY THE DRAFT ACCOMPANYING THIS STATEMENT IS THE AMOUNT REQUMED TO
BE PAID TO T)-IE BENEI'PICIARY ON ACCOUNT OF THE DEFAULT OF (APPLICANTI UNDER TIME [AGREEMEgr NAME)
DATED ON OR AROUND ( DATE), (THE "AGREEMENT) BYAND BETWEEN IBENFF'ICIARYL AS AND (APPUCANT). AS
1.1; THAT (APPLICANT) I-LA5 BEEN GIVEN WRITTEN NOTICE BY (BENEFICIARY) DESCRIBING -mF EVENT OR
CONDITION OF SUCH DEFAULT IN REASWLABLE DETAIL BY CERTIFIED MAIL. RETURN RECEBPT REQUESTEDVHE
DEFAULT HAS N,Ior BEEN CURED WITHIN THE CURE PERIOD PROVIDED THEREIN, IF ANY. ANDTi-IAT
(BENEFICIARY) IS NOT IN DEFAULT UNDER THE TERMS AND CONDITIONS OF 11 IE AGREEMENT AND Air SUCH 15
EN'Tfn.ED TO BE PAID TIME PROCEEDS OF TEAS LETTER OF CREDIT UNDER THE *TERMS OF THE AGREEMENT'
THIS LETTER OF CREDrr SETS FORTIA IN FULL THE TERMS OF OUR UNDERTAKING AND SUCH UNDERTAKING SHALL NOT
IN ANY WAY SE MODIFIED, AMENDED. AMPLIFIED OR LIMITED BY REFERENCE TO ANY DOCUMENT. INSTRUMENT OR
AGREEMENT REARRED TO HEREIN OR IN YA-IICH THIS, LETTER OF CREDIT IS RFFERRED TO OR WHICH 11,15 LETTER OF
CREDIT RELATES, AND ANY SUCH REFERENCE SHALL HOT BE DEVAFD TO INCORR)RATE HEREIN ANY SUCH DOCUMENT.
INSTRUMENT OR AGREEMENT.
WE HEREBY ENGAGE WITH BENEFICIARY THAT ALL SIGHT DRAFTS DRAWN UNDER AND IN CONFORIVHTY WITH TNti
TER M I
III III
A N D
k loo00, N
CONDITIONS OF THIS LETTER OF CREDIT WILL BE DULY HONORED
IF DRAWN AN
IRED HEREIN
IF PRFSENTrO B
E TERFD OR CFRT(FtFD MAIL, RETURN RFCEIPT REQUESTED OR BY
FEDERAL WRESS OR A04Y OTHER NATIONALLY RECOGNIZED COURIER COMPANY
TM5 LETTER OF CREW( IS SUBJECT To AND GOVERNED BY THE tAWSOF THE STATE OF FIORIDA WITHOUT REGARD 10
PRINCIPLES OF CONFLICT OF LAW), AND EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN. Is SUBJECT To THE
INTERNATIONAL STANDBY PRACTCES 1998, IMERNATIONAL CHAMBER OF COMMERCE * PUBLICATION NO, S90
CISP9811 AND IN THE EVEtcr OF AW CONFLICT, THE LAWS OF THE5FAJF OF FLORIDA WILL CONTROL
VERY TRULY YOURS.
41THORIZED SIGNER. TITLE
I 13 5 3 U10- 12
1-2
18$7W65.2
E'xhibit 5
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