Exhibit 10.7
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Between
MISSION VIEJO COMPANY,
a California corporation
("Mission")
and
THE ▇▇▇▇ COMPANY,
a Colorado corporation
("Buyer")
Date: ____________, 1995
1
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Table of Contents
(For Convenience Only-Not a Part of Agreement)
Page
1. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Purpose of Agreement . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3. Development Guide. . . . . . . . . . . . . . . . . . . . . . . . 1
1.4. Interstate Land Sales Full Disclosures Act and Colorado
Subdivision Developers Act Exemptions. . . . . . . . . . . . . . 1
1.5. Parcel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. PURCHASE AND SALE PROVISIONS. . . . . . . . . . . . . . . . . . . . . . 2
2.1. Agreement for Purchase and Sale. . . . . . . . . . . . . . . . . 2
2.2. Base Purchase Price. . . . . . . . . . . . . . . . . . . . . . . 2
2.3. Computation of Purchase Escalation Amount. . . . . . . . . . . . 3
2.4. Deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. PRE-CLOSING CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1. Development and Phasing Plan . . . . . . . . . . . . . . . . . . 3
3.2. Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3. Environmental Assessments. . . . . . . . . . . . . . . . . . . . 4
3.4. Investigation Period . . . . . . . . . . . . . . . . . . . . . . 4
3.5. Entry Limitations. . . . . . . . . . . . . . . . . . . . . . . . 6
3.6. Minor Development Plan Approval. . . . . . . . . . . . . . . . . 6
3.7. Buyer's Site Plans . . . . . . . . . . . . . . . . . . . . . . . 7
3.8. Financial Information of Buyer . . . . . . . . . . . . . . . . . 8
3.9. No Recreation Facilities . . . . . . . . . . . . . . . . . . . . 9
3.10. Acceptance of Buyer's Signs. . . . . . . . . . . . . . . . . . . 9
3.11. Fencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.12. Assignment of Plans. . . . . . . . . . . . . . . . . . . . . . . 9
4. TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.1. Title Insurance. . . . . . . . . . . . . . . . . . . . . . . . . 10
4.2. Permitted Exceptions . . . . . . . . . . . . . . . . . . . . . . 10
4.3. Title Defects. . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.4. Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.5. Annexation of Property to Community Association. . . . . . . . . 12
4.6. Special District Disclosure. . . . . . . . . . . . . . . . . . . 12
4.7. Special District Formation . . . . . . . . . . . . . . . . . . . 13
4.8. Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5. CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.1. Closing Dates and Place. . . . . . . . . . . . . . . . . . . . . 16
5.2. Documents at Closing . . . . . . . . . . . . . . . . . . . . . . 17
5.3. Closing Statement Adjustments and Prorations.. . . . . . . . . . 17
5.4. Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.5. Building Permit Moratorium.. . . . . . . . . . . . . . . . . . . 17
6. MISSION'S POST-CLOSING OBLIGATIONS. . . . . . . . . . . . . . . . . . . 19
6.1. Directory Maps . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.2. Directional Signs. . . . . . . . . . . . . . . . . . . . . . . . 19
6.3. Installation of Maps and Signs . . . . . . . . . . . . . . . . . 19
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7. BUYER'S POST-CLOSING OBLIGATIONS. . . . . . . . . . . . . . . . . . . . 20
7.1. Incorporation of Buyer's Obligations in Deed . . . . . . . . . . 20
7.2. Metropolitan District Requirements . . . . . . . . . . . . . . . 20
7.3. Additional Information . . . . . . . . . . . . . . . . . . . . . 20
7.4. Maintenance of Property. . . . . . . . . . . . . . . . . . . . . 20
7.5. Water, Soil, and Energy Conservation Measures. . . . . . . . . . 21
7.6. Compliance with Open Space Requirements. . . . . . . . . . . . . 21
7.7. Density Allocation . . . . . . . . . . . . . . . . . . . . . . . 22
7.8. Installation of Utilities. . . . . . . . . . . . . . . . . . . . 22
7.9. Off-Site Drainage. . . . . . . . . . . . . . . . . . . . . . . . 23
7.10. Willows Water Main . . . . . . . . . . . . . . . . . . . . . . . 24
8. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . 26
8.1. Representations and Warranties of Mission. . . . . . . . . . . . 26
8.2. Representations and Warranties of Buyer. . . . . . . . . . . . . 26
9. DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.1. Defaults by Mission. . . . . . . . . . . . . . . . . . . . . . . 26
9.2. Defaults by Buyer. . . . . . . . . . . . . . . . . . . . . . . . 27
9.3. Rights to Cure . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.4. Defaults After Closing . . . . . . . . . . . . . . . . . . . . . 28
10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.1. Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.2. Taking Prior to Closing. . . . . . . . . . . . . . . . . . . . . 28
10.3. Agreement Not to be Recorded . . . . . . . . . . . . . . . . . . 28
10.4. No Representations . . . . . . . . . . . . . . . . . . . . . . . 29
10.5. Indemnification; No Mechanic's Liens . . . . . . . . . . . . . . 29
10.6. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.7. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 30
10.8. No Oral Amendment or Modifications . . . . . . . . . . . . . . . 30
10.9. Nonseverability. . . . . . . . . . . . . . . . . . . . . . . . . 30
10.10. Assignability. . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.11. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.12. Captions for Convenience . . . . . . . . . . . . . . . . . . . . 31
10.13. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.14. Exhibits Incorporated. . . . . . . . . . . . . . . . . . . . . . 31
10.15. Time of the Essence. . . . . . . . . . . . . . . . . . . . . . . 31
10.16. Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.17. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.18. Costs of Legal Proceedings . . . . . . . . . . . . . . . . . . . 32
10.19. Survival of Provisions . . . . . . . . . . . . . . . . . . . . . 32
10.20. General Cooperation. . . . . . . . . . . . . . . . . . . . . . . 32
10.21. Computation of Time. . . . . . . . . . . . . . . . . . . . . . . 32
10.22. Negotiated Provisions. . . . . . . . . . . . . . . . . . . . . . 32
10.23. The Foreign Investment In Real Property Tax Act and Colorado
Department of Revenue Form 1083. . . . . . . . . . . . . . . . . 33
10.24. No Implied Waiver. . . . . . . . . . . . . . . . . . . . . . . . 33
Table of Exhibits
(For Convenience Only-Not a Part of Agreement)
Exhibit A Development and Phasing Plan
Exhibit B First Parcel Site Plan
Exhibit C Fencing Plan
Exhibit D Permitted Exceptions
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Exhibit E Relinquishment of Surface Rights
Exhibit F First Parcel Deed Form
Exhibit G Subsequent Parcels Deed Form
Exhibit H Supplemental Declaration Form
Exhibit I Easement and Development Agreement
Exhibit J Access Easement Agreement
Exhibit K Contiguous Area Report
Exhibit L Willows Water Agreement
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
This Second Amended and Restated Vacant Land Purchase and Sale Agreement
("Agreement") is made as of this 23rd day of March, 1995 ("Execution Date"),
between MISSION VIEJO COMPANY, a California corporation ("Mission"), whose
address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Residential Land Sales and Acquisitions, and THE ▇▇▇▇ COMPANY, a
Colorado corporation ("Buyer"), whose address is ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. GENERAL.
1.1. Purpose of Agreement. The parties desire to enter into this
Agreement to amend and restate, in its entirety, the terms and conditions by
which Mission agrees to sell and Buyer agrees to buy the Property, as
hereinafter defined. Pursuant to that certain Vacant Land Purchase and Sale
Agreement ("Original Agreement") dated as of July 14, 1993 between Mission and
▇▇ ▇▇▇▇, as amended, Mission and ▇▇ ▇▇▇▇ had contracted for the sale and
purchase of the Property. The Original Agreement was amended and restated in
its entirety by that certain Amended and Restated Vacant Land Purchase and Sale
Agreement ("Restated Agreement") dated as of the 11th day of February, 1994,
between Mission and ▇▇ ▇▇▇▇, as amended. Effective as of November 15, 1994, ▇▇
▇▇▇▇ assigned all of Buyer's right, title and interest in and to the Original
Agreement and the Restated Agreement, including the Deposit held by Mission
thereunder, to Buyer and Buyer assumed all obligations of ▇▇ ▇▇▇▇ thereunder.
This Agreement is intended to and shall amend, restate and supersede, in its
entirety, the terms and provisions of the Restated Agreement.
1.2. Property. The "Property" shall mean the tract of unimproved real
property containing approximately 181.803 acres located in ▇▇▇▇▇▇▇ County,
Colorado, more particularly described as Lots 1-5, Highlands Ranch Filing 126-
A, and which is generally depicted on the Development and Phasing Plan, as
hereinafter defined, attached hereto as Exhibit A.
1.3. Development Guide. The "Development Guide" shall mean the Devel-
opment Guide for the New Town of Highlands Ranch, approved September 17, 1979,
by the Board of County Commissioners of ▇▇▇▇▇▇▇ County, Colorado, recorded
October 25, 1979, in Book 373, beginning at Page 187, in the office of the
Clerk and Recorder of ▇▇▇▇▇▇▇ County, Colorado ("▇▇▇▇▇▇▇ County Records"), as
the same has been and may be amended from time to time.
1.4. Interstate Land Sales Full Disclosures Act and Colorado Subdivision
Developers Act Exemptions. It is acknowledged and agreed by the parties that
4
the sale of the Property will be exempt from the provisions of the federal
Interstate Land Sales Full Disclosures 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 for the purpose of resale of such property to persons
engaged in such business. Buyer hereby represents and warrants to Mission that
Buyer 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
provisions of the Colorado Subdivision Developers Act under the exemption
applicable to transfers between developers. Buyer represents and warrants to
Mission 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
5
Property and portions thereof.
1.5. Parcel. "Parcel," as used herein, shall mean each portion of the
Property to be purchased by Buyer at a Closing, as hereafter provided. The
general location, approximate acreage and allocated density of each Parcel has
been agreed upon pursuant to the provisions of Section 3.1 hereof.
2. PURCHASE AND SALE PROVISIONS.
2.1. Agreement for Purchase and Sale. For good and valuable consider-
ation, Mission hereby agrees to sell, and Buyer hereby agrees to purchase, the
Property upon the terms and conditions set forth in this Agreement.
2.2. Base Purchase Price. The "Base Purchase Price" for the Property
has been computed based upon the assumption that the Property contains 181.803
acres and is being purchased for a Base Purchase Price of $73,500.00 per gross
acre, as increased in accordance with the provisions of Section 2.3 below. The
total Base Purchase Price shall be $13,362,520.50, subject to adjustment based
on the actual number of gross acres contained therein as set forth on the
Survey. The Property will be purchased in Parcels. The Purchase Price
attributable to each Parcel shall be computed based upon the number of gross
acres contained therein as depicted on the boundary certification of each such
Parcel, to be provided by Buyer to Mission as provided in Section 3.2 below, at
the Base Purchase Price per gross acre provided above, plus the Purchase
Escalation Amount, as hereinafter defined, based upon the date of Closing for
the particular Parcel. The Purchase Price for each Parcel, as so computed,
shall be payable at each Closing in the form of wire transfer of federal funds,
subject to prorations and adjustments in accordance with Section 5.3 below.
The Purchase Price attributable to the last Parcel to be purchased by Buyer
(the "Last Parcel") shall be payable in accordance with the following
provisions: (a) a credit against the purchase price payable by Buyer for the
Last Parcel purchased by Buyer for the amount of the Deposit, as hereinafter
provided; and (b) the remaining balance of the Purchase Price in the form of
wire transfer of federal funds at Closing, subject to prorations and
adjustments in accordance with Section 5.3 below.
2.3. Computation of Purchase Escalation Amount. The "Purchase
Escalation Amount" shall be an amount determined by multiplying the Base
Purchase Price for such Parcel being purchased by six percent (6%) and
multiplying the resulting product by a fraction, the numerator of which is the
number of days from and after November 30, 1994 until the date of Closing, as
hereinafter defined, for the Parcel whose purchase price is being determined,
and the denominator of which is 365.
2.4. Deposit. The "Deposit" shall be a total of $300,000.00. Mission
hereby acknowledges having previously received from Buyer the sum of
$50,000.00. The balance of the Deposit in the amount of $250,000.00 shall be
payable simultaneously with the execution of this Agreement. The Deposit shall
not accrue interest and any interest earned on the $50,000.00 previously paid
by Buyer under the Original Agreement or the Restated Agreement shall be deemed
paid by Buyer to Mission in consideration of the execution of this Agreement by
Mission. Buyer shall have no right to the return of the Deposit, except as
specifically set forth herein; provided, however, that $25,000.00 of the
Deposit shall be non-refundable in the event this Agreement is terminated for
any reason (the "Non-refundable Deposit").
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3. PRE-CLOSING CONDITIONS.
3.1. Development and Phasing Plan. Buyer has prepared, at Buyer's sole
cost and expense, a development and phasing plan package for the Property
which includes: (i) a designation of the Property within Planning Areas 67 and
73 to be acquired by Buyer pursuant to this Agreement; (ii) the anticipated
phasing plan for the Parcels to be acquired by Buyer pursuant to this
Agreement, including the order in which they are to be acquired by Buyer and
the approximate number of Dwelling Units (as that term is defined in the Deed,
as hereinafter defined) allocated to each Parcel; and (iii) a general
conceptual development plan for the Property showing general location of
streets, open space, and recreation amenities, to be constructed on the
Property (collectively the "Development and Phasing Plan"). The Development
and Phasing Plan, as approved by Mission, is attached hereto as Exhibit A.
Buyer may, at Buyer's option ("Early Closing Option"), at any scheduled
Closing, elect to purchase the next Parcel to be acquired by Buyer hereunder as
provided in the Development and Phasing Plan in advance of the time Buyer is
otherwise obligated to purchase such Parcel hereunder. Buyer shall, if at all,
exercise the Early Closing Option by giving written notice of election to
Mission, which notice shall specify which portion of such Parcel Buyer desires
to purchase. Buyer shall be entitled to a credit against the number of
Dwelling Units and acreage of Property which Buyer is otherwise obligated to
purchase hereunder at the subsequent scheduled Closing for the number of
Dwelling Units and acreage of Property which Buyer has theretofore closed the
purchase of from Mission in excess of the cumulative number of Dwelling Units
and acreage of Property which Buyer has at that time been obligated hereunder
to acquire from Mission.
3.2. Survey. A boundary and improvement survey plat of the Property (the
"Survey") dated November 29, 1993 and prepared by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and
Associates has been delivered by Mission to Buyer, at Mission's cost and
expense, and Buyer hereby approves the same. Buyer agrees, not later than
fifteen (15) days prior to any Closing on a Parcel, to provide to Mission a
certification by a licensed land surveyor, setting forth the legal description
of such Parcel and the number of gross acres contained therein for the purposes
of computing the purchase price for such Parcel in accordance with the
provisions of Article 2 above ("Certifications"). Any recertification of the
Survey and any additional surveys of the Parcels shall be at Buyer's sole cost
and expense. For the purposes of this Agreement, the term "Survey" shall mean
and include all Certifications to the Survey made in accordance with the
provisions hereof.
3.3. Environmental Assessments. Buyer, at Buyer's sole cost and expense,
has previously engaged Buyer's own environmental engineer to undertake environ-
mental assessments or investigations of the Property ("Assessment"). Buyer
shall treat all information contained in the Assessment as strictly
confidential. The contract which Buyer and the environmental engineer selected
by Buyer have entered into contains confidentiality provisions consistent with
the confidentiality requirement set forth herein.
3.4. Investigation Period. Buyer has had the right pursuant to the
Original Agreement and the Restated Agreement to perform such Investigations,
Tests and Surveys, as hereinafter defined, as Buyer has deemed necessary. The
"Investigations, Tests and Surveys" which Buyer was permitted to make included,
without limitation, the following: (a) inspecting, making engineering,
environmental and architectural studies, including obtaining the Assessment,
testing the soil and otherwise determining the condition of the Property; (b)
reviewing subdivision, zoning and building code ordinances, rules and
7
regulations of the County of ▇▇▇▇▇▇▇ and the subdivision, zoning and building
code ordinances, rules and regulations of the State of Colorado relating to
construction of any improvements which Buyer intends to construct on the
Property, to determine that such matters do not prevent or unreasonably impair
the ability of Buyer to construct and use other improvements which Buyer
intends to construct; (c) determining that utilities, including, without
limitation, water, sewer, gas, electricity and telephone are adequate to serve
the Property; (d) determining that there is or shall be adequate access to
serve the improvements which Buyer intends to construct on the Property; (e)
determining the nature, magnitude, and times due of all 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--
governmental agency; (f) obtaining and reviewing a Uniform Commercial Code
search or searches pertaining to the Property and Mission's interest therein
(the "UCC Searches"); and (g) determining all other matters regarding the
Property and the development thereof which Buyer deems appropriate. Mission
has previously provided to Buyer access to information and/or materials
requested by Buyer, which Mission may have in its files with respect to the
Property and Buyer hereby acknowledges having received such items. Mission
agrees to continue to cooperate with Buyer in providing additional information
and/or materials specifically requested by Buyer from Mission; provided,
however, that Mission may impose such reasonable limitations and conditions on
Buyer's use of such information and materials as it may deem appropriate.
Mission makes no representation or warranty whatsoever with respect to any
information or material so provided. Except as set forth in Section 7.10
hereof, Buyer acknowledges that Buyer is satisfied with the results of Buyer's
review of the Investigations, Tests and Surveys, or is otherwise satisfied to
the extent necessary to purchase the Property. Buyer hereby accepts the
Property and its condition as of the Execution Date on an "AS IS" basis. For
purposes of this Agreement, the term "AS IS" shall mean (without limitation
thereon, but subject to the warranties and representations set forth in Section
8.1 below) "AS IS" with respect to (a) the physical condition of the Property
(including defects seen and unseen and conditions natural and artificial); (b)
title to the Property as disclosed in the Title Commitment and subject to the
Permitted Exceptions, as hereinafter defined; (c) any other documents, agree-
ments or restrictions encumbering the Property and previously disclosed to
Buyer, including the Survey; and (d) all laws, ordinances, rules and regula-
tions to which the Property is subject under any applicable governmental or
regulatory jurisdiction. Mission's sole obligation with respect to the
physical condition of the Property shall be to deliver possession of the
Property to Buyer in substantially the same condition (excluding normal wear
and tear and casualty damage) as existed on the Execution Date and Buyer has
agreed to accept possession of the Property on the Date of Closing on an "AS
IS" basis. MISSION AND BUYER AGREE THAT THE PROPERTY SHALL BE SOLD "AS IS,
WHERE IS, WITH ALL FAULTS" WITH NO RIGHTS OF SET-OFF OR REDUCTION IN THE
PURCHASE PRICE, AND, EXCEPT AS SET FORTH IN SECTION 8.1 HEREOF, SUCH SALE SHALL
BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED
(INCLUDING, WITHOUT LIMITATION, WARRANTY OF INCOME POTENTIAL, OPERATING
EXPENSES, USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), AND BUYER
DOES HEREBY WAIVE, DISCLAIM AND RENOUNCE ANY SUCH REPRESENTATION OR WARRANTY.
3.5. Entry Limitations. Buyer, and Buyer's authorized agents, employees
and independent contractors, shall have the right, for Buyer's benefit, to
enter upon the Property for the purpose of making further Investigations, Tests
and Surveys, but only in accordance with the terms and provisions of a License
to Enter Upon Real Property to be entered into between Mission and Buyer (the
"License Agreement"). Any entry by or on behalf of Buyer shall be subject to
such reasonable rules, regulations, standards and conditions as are referred to
8
within the License Agreement and otherwise as Mission may impose. All such
Investigations, Tests and Surveys shall be at the sole cost and expense of
Buyer and shall not damage, destroy or harm the Property or any improvements
thereon and Buyer shall promptly repair and restore the Property to its origi-
nal condition at Buyer's sole cost and expense. Notwithstanding any other
provisions of this Agreement, the obligations of Buyer under this Section shall
survive any termination of this Agreement by either Buyer or Mission.
3.6. Minor Development Plan Approval. Buyer, for Buyer's sole benefit,
has applied for approval by the ▇▇▇▇▇▇▇ County Commissioners ("County
Commissioners") of a Minor Development Plan for the entire Property and certain
additional real property located east of the Property. The "Minor Development
Plan" consists of and is contained in the plat of Highlands Ranch Filing ▇▇.
▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ and a Portion of Area 73 A Minor Development of a part
of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 67 West of the 6th P.M., ▇▇▇▇▇▇▇ County
Colorado 200.72 Acres, 6 Residential Lots, prepared by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and
Associates and dated 6/94. Mission and the County Commissioners have
previously accepted the Minor Development Plan prepared by Buyer. Buyer agrees
that no modifications to the Minor Development Plan, as accepted by Mission and
the County Commissioners, which would have a material adverse impact on the
Property or the development and use thereof by Buyer or Mission shall be made
without Mission's prior written acceptance. Any subdivision improvement
agreement(s) to be executed in connection with the Minor Development Plan shall
be subject to the review and acceptance of Mission, and shall be executed by
Buyer, and not by Mission. Buyer shall be required to deliver to ▇▇▇▇▇▇▇
County, at Buyer's cost and expense, any security required by ▇▇▇▇▇▇▇ County to
secure the performance of Buyer under such subdivision improvements agreement,
including, at Buyer's cost, separate security if required by ▇▇▇▇▇▇▇ County to
secure the completion of the off-site drainage system and utility system as
required by this Agreement. Buyer agrees to indemnify, defend, and hold
Mission harmless from and against any and all liability, claims, loss, damage
or expense, including reasonable attorneys' fees, which may be incurred by or
asserted against Mission in connection with any such subdivision improvements
agreement, including those which relate to Buyer's completion of any off-site
improvements, but such indemnity shall apply only to the extent of any
improvements (on or off-site) required to be completed in connection with any
portion of the Property acquired by Buyer. Mission agrees that all consents,
acceptances, or approvals required of it pursuant to this Section 3.6 shall not
be unreasonably withheld.
3.7. Buyer's Site Plans. Buyer acknowledges that the Parcels shall be
conveyed to Buyer pursuant to a Deed, as hereinafter defined, which requires
Buyer, prior to the commencement of construction on a Parcel, to submit, for
acceptance by Mission, a site plan. Buyer has, for Buyer's sole benefit,
elected to submit the Site Plan, as hereinafter defined, to Mission for Lot 1
as shown on the Minor Development Plan ("First Parcel"). In addition, Buyer
desires for Buyer's sole benefit, to apply for and receive approval by ▇▇▇▇▇▇▇
County of the site plan for the First Parcel as accepted by Mission, prior to
the First Parcel Closing, to confirm ▇▇▇▇▇▇▇ County's approval of Buyer's
intended use of the First Parcel.
(a) Mission Site Plan Acceptance. Buyer has prepared, at Buyer's sole
cost and expense, a site plan for the First Parcel consisting of those
materials more specifically described of Exhibit B, attached hereto ("First
Parcel Site Plan"). Mission has accepted the First Parcel Site Plan and Buyer
agrees that it shall not revise the First Parcel Site Plan in any material
respect without the prior written consent of Mission; provided, however, that
Buyer shall provide Mission with copies of all proposed changes to the Site
9
Plan prior to their submittal to ▇▇▇▇▇▇▇ County. In the event that Buyer
desires to revise the First Parcel Site Plan, Buyer shall submit Buyer's
proposed modifications to Mission. Mission shall give Buyer written notice of
its acceptance or rejection of the proposed modifications to the First Parcel
Site Plan on or before the 5th business day following its receipt of the
proposed modifications. If Mission has not given Buyer notice of Mission's
rejection or conditional acceptance of the proposed modifications by the
expiration of said 5 day period, Mission shall be deemed to have rejected the
proposed modifications to the First Parcel Site Plan as submitted by Buyer.
Acceptance or rejection of the proposed modifications to the First Parcel Site
Plan shall be in the reasonable discretion of Mission. If Mission rejects or
conditionally accepts the proposed modifications to the Site Plan, Buyer may
deliver to Mission additional modifications to Mission from time to time for
Mission's review. In any event, if Mission has not accepted the proposed
modifications to the First Parcel Site Plan on or before the date which is 30
days from the date Buyer initially submitted its proposed modifications to
Mission, Buyer may terminate this Agreement by written notice delivered to
Mission in which event the Deposit shall be retained by Mission and each party
shall be relieved from all further obligations under this Agreement except as
otherwise provided herein. Buyer shall, from time to time, prepare, at Buyer's
sole cost and expense, a site plan package for the remaining portions of the
Property which shall include: (i) a plan showing the location of the buildings
and other improvements to be constructed on the Property, including location of
mechanical equipment; (ii) building exterior elevations, including colors and
materials; (iii) a drainage plan; (iv) a landscape plan; and (v) a signage plan
(a "Site Plan", the "First Parcel Site Plan" or collectively as to Parcels
other than the First Parcel the "Future Parcel Site Plans"). The Future Parcel
Site Plans shall be prepared in accordance with the Development and Phasing
Plan. Mission shall give written notice to Buyer of its acceptance or
rejection of the Future Parcel Site Plans on or before 20 days following the
date of its receipt of the Future Parcel Site Plans. If Mission has not given
notice of rejection or conditional acceptance by the expiration of said 20-day
period, Mission shall be deemed to have rejected the Future Parcel Site Plans
as submitted by Buyer. Acceptance or rejection of the Future Parcel Site Plans
shall be in the reasonable discretion of Mission. If Mission expressly rejects
or conditionally accepts the Future Parcel Site Plans, Buyer may deliver to
Mission revised Future Parcel Site Plans, from time to time, for Mission's
review and approval in the manner and time periods provided above for the
review of proposed modifications to the First Parcel Site Plan.
(b) ▇▇▇▇▇▇▇ County Site Plan Approval. Mission shall provide to Buyer a
letter as required by ▇▇▇▇▇▇▇ County Site Plan processing procedures,
authorizing Buyer to submit the First Parcel Site Plan. If Future Parcel Site
Plans are accepted by Mission in accordance with subsection (a) above, Buyer
may submit the Future Parcel Site Plans to the ▇▇▇▇▇▇▇ County, from time to
time, as Buyer may desire. At such time, Mission shall provide to Buyer a
letter as required by ▇▇▇▇▇▇▇ County Site Plan processing procedures,
authorizing Buyer to submit the Future Parcel Site Plans. Buyer acknowledges
that Buyer shall have the sole responsibility to seek and obtain the approval
of ▇▇▇▇▇▇▇ County of the First Parcel Site Plan and all Future Parcel Site
Plans. Buyer agrees that no modifications requested by ▇▇▇▇▇▇▇ County or
desired by Buyer to the First Parcel Site Plan or the Future Parcel Site Plans
shall be made without Mission's prior written acceptance.
(c) Mission's Consent. Mission agrees that all consents, acceptances,
or approvals required of it pursuant to this Section 3.7 shall not be
unreasonably withheld.
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3.8. Financial Information of Buyer. This Agreement imposes substantial
obligations upon Buyer. In order to evaluate the financial capability of Buyer
to meet Buyer's obligations under this Agreement, Buyer has delivered to
Mission Buyer's most current financial statement, and such other supplemental
information as Mission has requested, certified to be true and correct by
Buyer. Mission hereby acknowledges receipt of the above-referenced financial
information and that it has reviewed and accepted the same.
3.9. No Recreation Facilities. The parties have agreed that none of the
Property shall be a part of the Highlands Ranch Recreation Center, and Section
1.32 of the Deed is consistent with such agreement.
3.10. Acceptance of Buyer's Signs. Buyer agrees that all signs to be
constructed or installed by or on behalf of Buyer (a) upon the Property (the
"Property Signs"), (b) at any other location within Highlands Ranch (the
"Highlands Ranch Signs"), or (c) at any other location if the same relates to
or refers to Mission, the Property, or Highlands Ranch (the "Other Signs"),
shall, in each such case, be subject to the review and acceptance by Mission
prior to the time they are so constructed or installed and, in the case of the
Property Signs and the Highlands Ranch Signs only, shall also be subject to the
standards contained in the Development Guide. Review and acceptance by
Mission, in the case of the Property Signs and Highlands Ranch Signs, shall
include, without limitation, review and consent to the size, design, materials,
color, location, and copy and text of signs, but, in the case of the Other
Signs, shall be limited to review and consent by Mission to the content and
text thereof.
3.11. Fencing. Mission acknowledges and agrees that Buyer, at Buyer's
sole cost and expense, shall be entitled to install fencing within the Property
in accordance with the Fencing Plan attached hereto as Exhibit C upon the
Closing of each respective Parcel hereunder. In accordance with the foregoing,
Buyer, its authorized agents, employees and independent contractors shall have
the right, for Buyer's benefit, to enter upon those portions of the Property
necessary to install, maintain or repair fencing depicted on the Fencing Plan
but only in accordance with the terms and provisions of a License to Enter Upon
Real Property to be executed between Mission and Buyer (the "Fencing License
Agreement"). Any entry by or on behalf of Buyer shall be subject to such
reasonable rules, regulations, standards and conditions as are referred to
within the Fencing License Agreement and otherwise as Mission may impose.
Buyer shall keep in good condition and repair all fencing installed by Buyer on
the Property in accordance with the provisions hereof.
3.12. Assignment of Plans. After the Execution Date, and promptly after
preparation thereof, which shall be at Buyer's sole cost and expense, Buyer
shall submit to Mission a complete set, which may be retained by Mission, of
all plans and specifications prepared by or on behalf of Buyer in connection
with Buyer's development of the Property and the construction of improvements
thereon, including, but not limited to, all architectural plans, site plans,
landscaping plans, utility plans, water and sewer plans, fencing plans, and
street improvement plans ("Development Plans"). The parties hereby acknowledge
that the Development Plans shall be prepared from time to time during the term
of this Agreement, and Buyer hereby assigns to Mission, its successors and
assigns, the non-exclusive right to use the Development Plans in connection
with any development on the Property by Mission or its successors or assigns.
Buyer hereby agrees to execute such documents, from time to time, as Mission
may reasonably require to evidence such assignment. Buyer also agrees to
obtain all necessary consents to such assignments from its engineers, planners,
designers, architects, and similar contractors. Buyer agrees that in the event
11
of any default by Buyer hereunder, whether before or after any Closing, Buyer
shall pay for all such Development Plans, and Mission, its successors and
assigns, shall have the right, without any further cost or charge payable by
Mission, or Mission's successors or assigns, to use the Development Plans in
connection with any development on the Property by Mission, its successors or
assigns. MISSION HEREBY ACKNOWLEDGES AND AGREES THAT THE DEVELOPMENT PLANS SHALL
BE DELIVERED TO MISSION BY BUYER, "AS IS, WITH ALL FAULTS" AND WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, (INCLUDING, WITHOUT
LIMITATION, WARRANTY OF USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE) AND MISSION DOES HEREBY WAIVE, DISCLAIM AND RENOUNCE ANY SUCH
REPRESENTATION OR WARRANTY.
4. TITLE.
4.1. Title Insurance. Mission has previously delivered to Buyer a title
insurance commitment number P1030599-8 and dated February 2, 1995 for Planning
Areas 67 and 73 (the "Title Commitment") with respect to the Property, issued
by Land Title Guarantee Company ("Title Company"), committing to insure title
to the Property in Buyer, subject only to the Permitted Exceptions, as
hereinafter defined, in a face amount equal to the total Base Purchase Price.
The Title Commitment has been amended to reflect the legal description recited
on the Survey. Following the final execution of the Agreement, the Title
Commitment shall be revised to reflect the legal description of the Parcel(s),
as depicted on the Minor Development Plan, and the Purchase Price shall be
allocated between the Parcels based upon the number of gross acres contained
therein. As soon as possible after each Closing, Mission shall cause to be
delivered to Buyer, at Mission's cost and expense, an owner's title insurance
policy insuring the title of Buyer in the Parcel sold at such Closing, in
accordance with the Title Commitment, and the provisions of this Agreement, and
subject only to the Permitted Exceptions, in an amount equal to the Purchase
Price for the Parcel purchased. The Title Commitment shall provide for the
deletion of the standard printed exceptions, at Mission's cost and expense.
4.2. Permitted Exceptions. The "Permitted Exceptions" shall mean (a)
any easements, restrictions and conditions shown on the Survey or any
applicable Minor Development Plan; (b) real property taxes and assessments for
the year of the applicable Closing and subsequent years; (c) building, zoning
and other applicable ordinances and regulations of the County of ▇▇▇▇▇▇▇, State
of Colorado; (d) any reservations, exceptions, easements, rights-of-way,
restrictive covenants, conditions and other matters set forth on Exhibit D
attached hereto, including, but not limited to, the exceptions of mineral and
water rights set forth on such Exhibit D, subject, however, to Mission's
delivery to Buyer at Closing of a Relinquishment of Surface Rights with respect
to the exceptions of mineral and water rights in the form attached hereto as
Exhibit E; (e) taxes, assessments, fees or charges, if any, resulting from the
inclusion of the Property in the Highlands Ranch Metropolitan District No. 2;
(f) the easements, covenants, conditions and restrictions contained in the Deed
attached hereto as Exhibit F; (g) the terms and provisions contained in the
Supplemental Declaration in the form attached hereto as Exhibit H; (h) the
easements, covenants, conditions and restrictions contained in the Easement and
Development Agreement attached hereto as Exhibit I; (i) the easements,
covenants, conditions and restrictions contained in the Access Easement
Agreement attached hereto as Exhibit J; (j) any defects in or objections to
title to the Property caused by Buyer or anyone claiming by, through or under
Buyer; and (k) any other reservations, exceptions, easements, rights-of-way or
other matters which are waived or deemed waived by Buyer pursuant to the
Section of this Agreement entitled "Title Defects."
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4.3. Title Defects. Buyer hereby approves the Title Commitment and the
exceptions to title contained therein, including the Permitted Exceptions. If
Buyer learns of any lien, encumbrance, defect in or objection to title other
than a Permitted Exception listed in subsections (a) through (j) in the Section
above entitled "Permitted Exceptions" ("Defect"), Buyer shall give immediate
written notice thereof ("Notice of Defect") to Mission unless Buyer is willing
to waive the Defect. Buyer's failure to give Mission written Notice of Defect
within the 10 business days after learning of such Defect (whether by notice
from Mission or otherwise) shall constitute Buyer's waiver of such Defect.
Within 10 business days after Buyer's giving any written Notice of Defect,
Mission shall give notice to Buyer advising Buyer whether Mission intends to
cure any such Defect and, if so, shall thereupon promptly proceed to cure such
Defect. If Mission elects to cure any Defect, Mission may, by written notice
to Buyer, extend the date of the Closing in question for a period of up to 90
days in order to attempt a cure of such Defect in which case (a) the deadlines
and periods for the satisfaction of the performance of Mission's and Buyer's
post-closing obligations, as set forth in Articles 6 and 7 of this Agreement,
shall be extended for like periods, and (b) the calculation of the Purchase
Price Escalation Amount for the Parcel being purchased shall not include the
number of days by which Mission has extended the date of Closing to cure such
Defect. Mission shall give written notice to Buyer when the Defect is cured and
the Closing in question shall occur on the earlier to occur of the 10th
business day following the giving of such notice, the date on which the Closing
for the particular Parcel was otherwise scheduled to occur, or such other date
to which the parties may agree. If Mission declines to cure any such Defect,
or Mission fails to cure such defect within 90 days after the giving of the
original Notice of Defect by Buyer to Mission, Buyer may at Buyer's option, (a)
waive in writing such Defect and close as provided in this Agreement, or (b)
terminate any further effect of this Agreement in which case the Deposit shall
be returned to Buyer and each party shall thereupon be relieved of all further
obligations hereunder. Buyer agrees that any Defect shall be deemed cured if
Mission shall cause the Defect to be deleted from the Title Commitment and the
owner's title insurance policy to be delivered to Buyer or shall obtain
affirmative title insurance protection with respect thereto.
4.4. Deed. Mission shall at the Closing for the First Parcel convey the
First Parcel to Buyer by Special Warranty Deed ("Initial Deed") in the form
attached hereto as Exhibit F, free and clear of all liens, encumbrances,
easements and restrictions except the Permitted Exceptions. At each subsequent
Closing Mission shall convey the Parcel being conveyed at such Closing to Buyer
by Special Warranty Deed ("Subsequent Parcel Deed") in the form attached hereto
as Exhibit G, free and clear of all liens, encumbrances, easements and restric-
tions except the Permitted Exceptions. The Initial Deed and the Subsequent
Parcel Deeds are herein individually referred to as a "Deed." Each Deed shall,
however, contain an allocation of the Permitted Density, as hereafter defined,
to the Parcel being conveyed thereby. As provided in Section 1.31 of the
Initial Deed, the Property, and the owner thereof, shall not be entitled to
use, and shall not be subject to Recreation Function Common Assessments for,
any Recreation Cost Center established pursuant to the Community Declaration or
any Supplemental Declaration, including, but not limited to, the Highlands
Ranch Recreation Center.
4.5. Annexation of Property to Community Association. Mission shall at
each Closing cause the Parcel being purchased thereat to be subjected to the
Highlands Ranch Community Association in accordance with the terms and
provisions of the Supplemental Declaration, a copy of which is attached hereto
as Exhibit H.
13
4.6. Special District Disclosure. As required by Section 38-35.7-101,
C.R.S., the following disclosure statement is required to be made in every
contract for the purchase and sale of residential real property:
"Special Taxing Districts may be subject to general obligations
and indebtedness that is paid by revenues produced from annual tax
levies on the taxable property within the district. Property owners
in such districts may be placed at risk for increased mill levies and
excessive tax burdens 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 levies.
Buyers should investigate the debt financing requirements of the
authorized general obligation indebtedness of such districts,
existing mill taxes of such district servicing such indebtedness, and
the potential for an increase in such mill levies."
Buyer agrees to comply with such requirement in all contracts executed by
Buyer, which obligation shall survive Closing.
4.7. Special District Formation.
(a) Description of Special District. Mission acknowledges that Buyer
desires to form a special taxing district to finance some or all of those
infrastructure improvements which Buyer intends to construct upon the Property
including, but not limited to, streets, storm drainage systems, parks and
recreational facilities, and water and sewer facilities (the "Infrastructure
Improvements"). In accordance with the foregoing, Buyer intends to form a
limited purpose C.R.S. Title 32 Special District (the "Development District")
and a companion non-profit corporation (the "Development Corporation"). Buyer
intends that the Development District shall be formed for the limited purpose
of owning, operating and maintaining the Infrastructure Improvements and the
generation of revenue for such purposes. Buyer intends that the Development
Corporation shall be formed for the limited purpose of issuing bonds for the
purpose of funding the installation of the Infrastructure Improvements. In
accordance with the foregoing, Mission agrees to cooperate with Buyer in the
formation of the Development District and the Development Corporation subject
to the following terms and conditions and provided that the formation of such
entities does not adversely affect the Parcels remaining to be acquired by
Buyer under this Agreement, the development of Highlands Ranch generally or
the financial stability of any other special district located within Highlands
Ranch.
(b) Formation of Development District and Development Corporation.
Pursuant to Buyer's request, Mission has entered into that certain Installment
Land Contract dated February 23, 1995 (the "Installment Land Contract") by and
among Mission and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇.▇. English,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (collectively, the "First Parcel
Electors") for the acquisition of the real property more particularly described
therein (the "Directors Parcel"). Subject to the terms and provisions of the
Installment Land Contract and this Agreement, Mission agrees that it shall
cooperate with Buyer in keeping the Installment Land Contract in effect for a
period of one year from the date of this Agreement. Buyer agrees that it shall
reimburse Mission for all costs and expenses incurred by Mission in connection
with such Installment Land Contract including, but not limited to, premiums
paid for a title insurance policy for the Directors Parcel. Buyer acknowledges
that the "Directors Parcel" is not located within the First Parcel and that
Mission agreed to enter into and obligate itself to convey the Directors Parcel
to the First Parcel Electors (as opposed to Buyer) as an accommodation to Buyer
14
in connection with the formation of the Development District and the
Development Corporation. In accordance with the foregoing and subject to the
terms and provisions hereof, Mission acknowledges and agrees that Buyer, by and
through the First Parcel Electors, shall be entitled to commence the formation
of the Development District and the Development Corporation.
(c) Development District and Development Corporation Documentation.
Mission and Buyer acknowledge that Buyer has (i) initiated preparation of
documentation associated with the formation of the Development District (the
"District Documentation") and documentation related to the formation of the
Development Corporation and the financing of the construction and maintenance
of the Infrastructure Improvements (collectively, the "Corporation
Documentation"); and (ii) submitted portions of the District Documentation and
the Corporation Documentation to various governmental and quasi-governmental
entities for review and comment. Notwithstanding the foregoing, Buyer
acknowledges that Mission has not approved the form of any District
Documentation or Corporation Documentation and Buyer agrees hereafter to submit
to Mission for its review and acceptance: (i) all District Documentation and
Corporation Documentation prior to the time that any such documentation is
submitted to any governmental or quasi-governmental entity for review, comment
or approval; (ii) such supplemental documentation as Mission may reasonably
request which is related to the formation of the Development District and/or
the Development Corporation in accordance with the provisions hereof. In
accordance with the foregoing, Buyer may submit District Documentation and
Corporation Documentation to Mission for its review at anytime and from time to
time subject to the following: Mission shall give written notice to Buyer of
its acceptance or rejection of any District Documentation or Corporation
Documentation submitted to it on or before the date which is 10 business days
following the date of Mission's receipt thereof. If Mission has not given
notice of rejection or conditional acceptance of such documentation by the
expiration of said 10 day period, Mission shall be deemed to have rejected such
documentation as submitted by Buyer. Acceptance or rejection of any District
Documentation or Corporation Documentation, including, but not limited to, the
Service Plan, as hereinafter defined, and the Petition, as hereinafter defined,
shall be in the reasonable discretion of Mission. If Mission rejects or
conditionally accepts the District Documentation or the Corporation
Documentation, Buyer may deliver to Mission revised documentation, from time to
time, for Mission's review. Buyer agrees that it shall not modify any District
Documentation or Corporation Documentation as submitted to and approved by
Mission without the prior written consent of Mission as provided above.
In connection with the formation of the Development District and the
Development Corporation, Buyer agrees that the name of the Development District
or the Development Corporation shall not include the name "Highlands Ranch" or
the "Park at Highlands Ranch." Buyer further acknowledges and agrees that the
District Documentation and the Corporation Documentation shall: (a) apply only
to the First Parcel and the Directors Parcel; provided that such documentation
may contemplate the annexation of the remaining Parcels within the Property to
the Development District subsequent to the time that Buyer has closed the
purchase of such Parcels; (b) that no bonds shall be issued by the Development
District and/or the Development Corporation prior to the date of Closing for
the First Parcel; and (c) provide that no liens or obligations shall be
incurred by the District or attach to any portion of the Property until such
time as Buyer has acquired such Property. Mission and Buyer acknowledge that
the formation of the Development District will require: (a) the submission of a
Service Plan for the Development District (the "Service Plan") to the County
Commissioners of ▇▇▇▇▇▇▇ County for review and approval; (b) assuming approval
of the Service Plan by the County Commissioners, the filing of a petition
15
("Petition") to organize the Development District with the District Court of
▇▇▇▇▇▇▇ County; (c) the appearance before the District Court of ▇▇▇▇▇▇▇ County
regarding the formation of the Development District; and (d) an election
authorizing the formation of the Development District and the election of the
Board of Directors of the Development District. In accordance with the
foregoing and without limiting the generality of the review provisions
contained above, Buyer expressly acknowledges and agrees that Mission shall be
entitled to review and approve the form and content of the Service Plan, the
Petition, and the Order of the District Court forming the Development District
(the "Order"). Buyer agrees that Mission may require that the Order include
specific provisions of the Service Plan designated by Mission, including, but
not limited, provisions which prohibit the Development District from exercising
powers which impact properties outside of the Development District boundaries
(e.g. condemnation of property outside of the Development District or the
construction of improvements on property located outside of the Development
District boundaries).
(d) Termination of Agreement/Special District. In the event that this
Agreement is terminated by either party prior to the recording of the Order,
Buyer shall cooperate with Mission in terminating the Development District and
the Development Corporation. In furtherance of the foregoing, such cooperation
shall include, but shall not be limited to, the termination of the Installment
Land Contract upon demand by Mission. Buyer and all other parties reasonably
required by Mission, including but not limited to counsel for the Development
District, shall execute all documentation reasonably requested by Mission to
facilitate the transfer of control and termination of the Development District
and the Development Corporation (collectively, the "District Termination
Documents"). In addition to the foregoing, Buyer acknowledges and agrees that
it shall have one year from the date of this Agreement to (i) remove the
Directors Parcel from the boundaries of the Development District free and clear
of any Development District liens, obligations or encumbrances; and (ii)
resubdivide the First Parcel to provide for a substitute directors parcel
therein. Buyer agrees to indemnify, hold harmless and defend Mission from any
claim, liability, loss, damage, cost or expense, including attorneys' fees,
which Mission may incur or which may be asserted by reason of the formation
and/or termination of the Development District and the Development Corporation
or the failure of Buyer to remove the Directors Parcel from the Development
District in accordance with the provisions hereof.
4.8. Easements. Mission and Buyer agree that the following documents
pertaining to easements associated with the Property and other real property
shall be executed at the Initial Closing:
(a) Easement and Development Agreement. The Easement and Development
Agreement attached to this Agreement as Exhibit I shall be executed by Mission
and Buyer at the Closing of the First Parcel.
(b) Access Easement Agreement. The Access Easement Agreement attached
to this Agreement as Exhibit J shall be executed by Mission and Buyer at the
Closing of the First Parcel.
5. CLOSING.
5.1. Closing Dates and Place. It is acknowledged that there will be a
series of Closings, one for each Parcel. All references in this Agreement to
"Closing" shall mean and refer to the Closing for a particular Parcel.
"Closing" for each Parcel shall mean payment of the Purchase Price attributable
16
to the Parcel in question and delivery of the Deed, and other documents to be
delivered at Closing as hereinafter provided for such Parcel. Unless otherwise
agreed in writing by the parties, the Closing for the First Parcel shall take
place at 10:00 a.m. on May 1, 1995, or such later date to which such Closing
may be extended as provided in the Section of this Agreement entitled "Title
Defects." "Closing Date" or "Date of Closing" shall mean the day on which
Closing is accomplished. The Closing shall take place at the offices of Mis-
sion, or at such other place as the parties may mutually agree. Each
subsequent Closing shall occur not later than 12 months following the Closing
on the First Parcel as to the second Parcel and annually thereafter as to each
subsequent Closing, with the final Closing to occur not later than four (4)
years following the initial Closing. Except as otherwise provided in Section
4.3, each Closing shall occur on a date designated, in writing, by Mission to
Buyer not less than 30 days prior to the scheduled date therefor.
5.2. Documents at Closing. At each Closing, the following documents and
materials shall be delivered by the parties: (a) a Closing Statement, as
hereinafter provided; (b) a duly executed and acknowledged Deed by Mission in
the form attached as Exhibits F or G, as the case may be; (c) a Supplemental
Declaration executed by Mission in the form attached hereto as Exhibit H; (d)
the Purchase Price for the Parcel; (e) a duly executed and acknowledged Relin-
quishment of Surface Rights in the form attached hereto as Exhibit E; (f) a
duly executed and acknowledged Easement and Development Agreement in the form
attached hereto as Exhibit I, at the Initial Closing ; (g) a duly executed and
acknowledged Access Easement Agreement in the form attached hereto as Exhibit
J, at the Initial Closing ; (h) the affidavit referred to in the Section of
this Agreement entitled "The Foreign Investment in Real Property Tax Act"; and
(i) all other instruments and documents contemplated pursuant to this
Agreement.
5.3. Closing Statement Adjustments and Prorations. Each Closing State-
ment to be delivered by the parties at a Closing shall reflect the Purchase
Price for the Parcel, a credit against the Purchase Price for the Deposit for
the Last Parcel purchased only, and, except as provided in Section 4.7 hereof,
adjustment for proration as of the Closing Date of real property taxes and
assessments. The Closing Statement shall reflect the fact that Mission shall
be obligated to pay the premium for the owner's title insurance for the Parcel
pursuant to the Title Commitment; that Buyer shall be responsible for payment
of fees for recording or filing of the Deed, the Supplemental Declaration, any
Easement Agreement and the Relinquishment of Surface Rights, and any docu-
mentary or other fees payable in connection with such recording; and that the
parties shall equally split any closing fee payable to the Title Company.
Proration for real property taxes and assessments shall be based upon the then
most recently available amount of real property taxes and assessments with
respect to the Property, and said proration shall be final. In the event that
the Parcel is assessed or taxed as a part of a larger parcel, the tax for the
Parcel shall be determined by multiplying the assessment and tax for said
larger parcel by a fraction, the numerator of which shall be the land area
contained in the Parcel and the denominator of which shall be the land area
contained in said larger parcel.
5.4. Possession. Possession of a Parcel shall be delivered to Buyer as
of the Closing for such Parcel.
5.5. Building Permit Moratorium. In the event that any governmental or
quasi-governmental authority puts into effect, adopts, imposes or abides by a
moratorium or other similar restriction (a "Moratorium") with respect to
approval of electric, gas, sanitary sewer, water hook-ups or the issuance of a
17
building permit and the obtaining of a certificate of occupancy thereto, and
such Moratorium is in effect during the scheduled occurrence of the Closing or
a subsequent Closing or both, then Buyer shall not be required to purchase a
Parcel at such Closing or Closings. The Closing, if any, which has been
delayed due to such Moratorium, shall occur on the 10th business day after the
lifting of the Moratorium upon notice from Mission to Buyer. In the event a
Moratorium affects the dates for acceptance and approval of the Site Plan or
any Future Site Plan by ▇▇▇▇▇▇▇ County, the date of Closing for the Parcel
affected by such Moratorium shall be extended for a period of time equal to the
number of days during which such Moratorium is in effect. In accordance with
the foregoing, in the event that the Closing for any Parcel hereunder is
delayed due to a Moratorium, the date of Closing for all remaining Parcels to
be purchased by Buyer hereunder shall be extended by the period of any and all
such Moratoriums. In the event of the imposition of any Moratorium prior to
the occurrence of the Closing, or any subsequent Closing, the Purchase
Escalation Amount for any Parcel shall ▇▇▇▇▇ during the period of such
Moratorium. In addition, should any Moratorium or Moratoriums remain in effect
for more than any consecutive, noncollective, one year period during the term
of this Agreement, either Mission or Buyer shall have the option, in their sole
and absolute discretion, upon prior written notice to the other party, to
terminate this Agreement with respect to all portions of the Property not
previously purchased by Buyer hereunder, in which case one half of the Deposit
previously paid pursuant to this Agreement shall be returned to Buyer, one-half
of the Deposit previously paid pursuant to this Agreement shall be retained by
Mission and each party shall thereupon be relieved of all further obligations
with respect to, but only with respect to, the portions of the Property not
previously purchased under this Agreement.
Notwithstanding the foregoing, in the event that Mission elects to
terminate this Agreement pursuant to the provisions of this Section 5.5, Buyer
shall have the right to purchase any or all of the remaining Parcels not
previously purchased by Buyer hereunder in phase order, in accordance with the
terms and provisions of this Agreement, by delivering written notice to Mission
within thirty (30) days of Buyer's receipt of Mission's termination notice (the
"Option Notice"). In the event that Buyer elects to purchase all such portions
of the Property pursuant to the provisions hereof, the Closing for such
purchase shall occur on the date which is sixty (60) days after Mission's
receipt of the Option Notice, or such other date as the parties may mutually
agree.
6. MISSION'S POST-CLOSING OBLIGATIONS.
6.1. Directory Maps. Certain directory maps (the "Directory Maps") have
been installed by Mission, at its cost and expense, at various entry points
into Highlands Ranch, which are of a size, type, design, number, content and at
such locations as Mission has determined in its sole discretion may determine.
The Directory Maps show the locations of various projects in Highlands Ranch.
Directory Maps showing the location of projects shall include, at Mission's
cost and expense, either the name of Buyer or the name of Buyer's project to be
developed on the Property, whichever Buyer, at Buyer's option to be exercised
by written notice given to Mission prior to Closing (failing which exercise
Mission may make such selection in Buyer's discretion), shall elect.
6.2. Directional Signs. Mission agrees to install, at its cost and
expense, at least three directional signs (the "Directional Signs") at various
locations within Highlands Ranch, which shall be of a size, type, design,
number, content and at such locations as Mission in its sole discretion may
18
determine, which shall contain either the name of Buyer or the name of the
project of Buyer to be developed on the Property, whichever Buyer, at Buyer's
option to be exercised by written notice given to Mission prior to Closing
(failing which exercise Mission may make such selection in its discretion),
shall elect and may contain the name of any other project located within
Highlands Ranch and the developer thereof (including, if applicable, Mission).
6.3. Installation of Maps and Signs. Buyer agrees to give Mission
written notice advising Mission of the date anticipated by Buyer upon which
Buyer's leasing office or trailer shall be open for business with the public.
Mission agrees to cause the Directory Maps and Directional Signs (collectively
the "Maps and Signs") to be installed no later than the later of (a) 14 days
after the date upon which Mission receives such written notice, or (b) the date
anticipated by Buyer in such written notice as the date upon which such leasing
office or trailer shall so open, or (c) the actual date upon which such leasing
office or leasing trailer shall so open. The Maps and Signs shall be
maintained and repaired by Mission, at Mission's cost and expense, to a level
of quality as determined by Mission in its sole discretion, until two years
after the last Closing Date, at which time, or at any time thereafter, the Maps
and Signs may be removed. If after Mission initially installs the Maps and
Signs, Buyer desires to make any change with respect to the name of Buyer or
the name of Buyer's project, as the case may be, thereon, the cost of so doing
shall be at Buyer's expense.
7. BUYER'S POST-CLOSING OBLIGATIONS.
7.1. Incorporation of Buyer's Obligations in Deed. The Deeds attached
hereto as Exhibits F and G contain terms and provisions of certain obligations
of Buyer after the Closing. Buyer hereby agrees that Buyer shall be obligated
to comply with terms and provisions set forth in the Deeds.
7.2. Metropolitan District Requirements. The Property is located within
the boundaries of Highlands Ranch ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇ ("▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇"). Buyer will satisfy himself with regard to the services performed
by, the rules and regulations of, and the systems development fees, tap fees
and other fees charged by the Metropolitan District, all of which shall be paid
by Buyer.
7.3. Additional Information. Buyer acknowledges that Buyer has
received, read and understands the provisions of (a) a Contiguous Area Report
for the Property (the "CAR") in the form attached hereto as Exhibit K, or in
such other form as may be designated by Mission in writing to Buyer from time
to time; (b) the Community Declaration for Highlands Ranch Community
Association, Inc. (the "Community Declaration"), dated September 1, 1981 and
recorded September 17, 1981 in Book 421 beginning at Page 924 of the ▇▇▇▇▇▇▇
County Records, as it has been, or may be in the future, duly amended, and the
Articles of Incorporation and Bylaws of the Highlands Ranch Community
Association, Inc. ("Community Association"), attached as Exhibits thereto; (c)
the brochure entitled "Some Questions and Answers About the Highlands Ranch
Community Association"; and (d) a form of Supplemental Declaration, which has
been or will be used by Mission to annex the Property to the Community Asso-
ciation Area (the "Supplemental Declaration"). As more fully set forth in the
Initial Deed, Buyer agrees to be bound by and comply with the requirements and
restrictions contained in the Community Declaration, and the CAR in construct-
ing improvements on the Property.
7.4. Maintenance of Property. As is more particularly provided in the
19
Initial Deed, after the date of said Deed Buyer shall maintain, or cause to be
maintained, the portion of Property conveyed thereby in good, healthful and
sightly order, condition and repair. Additionally, and without limiting the
generality of the foregoing, Buyer agrees to obtain and maintain any and all
required permits, licenses and approvals from any governmental authority having
jurisdiction concerning stormwater runoff, sediment or erosion control, storm
drainage, or any other water or sediment discharge ("Stormwater Permit") which
relate to that portion of the Property, the Closing hereunder for which has
previously occurred (the "Transferred Portions"), and, with respect to the
Transferred Portions, to comply with any and all requirements, conditions,
restrictions or other terms contained in any such Stormwater Permit, whether it
has been obtained by Buyer or Mission, including, but not limited to, treatment
requirements and discharge limitations. Moreover, for any Stormwater Permit
obtained by Mission which covers all or a portion of the Property, Mission
shall have the option, at any time on or subsequent to the date upon which all
of the Property covered by such Stormwater Permit has been transferred to
Buyer, to require Buyer to accept a transfer of such Stormwater Permit. Buyer
further agrees to indemnify, hold harmless and defend Mission from any claim,
liability, loss, damage, cost or expense, including attorneys' fees, which
Mission may incur or which may be asserted by reason of any failure of Buyer to
comply with, or fulfill Buyer's obligations under, any such Stormwater Permit
required hereunder. Notwithstanding any other provision of this Agreement, the
obligations of Buyer under this Section shall survive each Closing, and any
termination of this Agreement by either Mission or Buyer.
7.5. Water, Soil, and Energy Conservation Measures. The "Development
Guide Preamble Obligations" shall mean the obligations of Mission, its succes-
sors and assigns, as set forth in Subsection C of the Preamble to the Develop-
ment Guide, entitled "Implementation of Water and Soil Conservation Measures,"
and in Subsection D of the Preamble to the Development Guide, entitled "Imple-
mentation of Energy Conservation Programs." Buyer agrees that in developing
the Property and in designing and constructing Dwelling Units and other
improvements thereon, Buyer shall comply with and perform the Development Guide
Preamble Obligations insofar as the same apply to the Property. Buyer agrees
from time to time and within 10 days after Mission shall deliver a written
notice to Buyer requesting Buyer to complete the same, to complete and deliver
to Mission a report on such a form as shall be designated by Mission from time
to time, setting forth what Buyer has done and in the future plans to do to
comply with the Development Guide Preamble Obligations.
7.6. Compliance with Open Space Requirements. Buyer covenants and
agrees that each portion of the Property, if any, which does not constitute a
lot upon which a Dwelling Unit is intended to be constructed shall be desig-
nated on the Minor Development Plan (or other appropriate document) as Open
Space pursuant to the Open Space Agreement, provided that such portion of the
Property otherwise qualifies as Open Space pursuant to the Open Space Agree-
ment. Any portion of the Property so designated on the Minor Development Plan
(or other appropriate document) as Open Space shall be subject to the Open
Space Agreement and Buyer agrees not to change the designation of such property
as Open Space without the prior written consent of Mission which shall be in
Mission's sole and absolute discretion. Buyer covenants and agrees to convey
or dedicate, as such terms are defined in Section 3.6 of the Open Space
Agreement, such Open Space to the Development District contemplated by Section
4.7 hereof, or, in the event that such Development District is not formed by
Buyer, a subassociation formed by Buyer pursuant to the terms and provisions of
the Supplemental Declaration, when and as directed by Mission and approved by
▇▇▇▇▇▇▇ County; provided that Mission shall be entitled to direct the
conveyance of such Open Space as provided hereunder only if: (a) there is no
20
Excess Open Space available for conveyance within Highlands Ranch; and (b) such
conveyance is demanded by ▇▇▇▇▇▇▇ County pursuant to the terms and provisions
of the Open Space Agreement. Such conveyance shall be subject only to such
reservations and exceptions of easements for access, utilities and drainage
purposes as Buyer may deem necessary and desirable and as are accepted in
writing by Mission and ▇▇▇▇▇▇▇ County. Until such time as the Open Space is
conveyed or dedicated to the Development District or subassociation as provided
hereunder, Buyer shall be obligated to care for and maintain the same. Buyer
agrees and acknowledges that Mission shall have the sole right to deal with
▇▇▇▇▇▇▇ County with respect to such Open Space. Buyer shall co-operate with
Mission in connection with all matters relating to the Open Space contained
within the Property.
7.7. Density Allocation. The parties hereby agree that a maximum of
1884 Dwelling Units shall be allocated to the Property and that each Parcel
shall be allocated the number of Dwelling Units as set forth on the Development
and Phasing Plan. Mission and Buyer acknowledge that Mission is selling the
Property to Buyer in accordance with Mission's overall plan for the development
of Highlands Ranch. In accordance with the foregoing, Mission covenants and
agrees that Mission shall not develop, sell, lease, transfer or otherwise
encumber other real property in Planning Areas 5, 54, 67 and 73 of the
Highlands Ranch or any other areas within Highlands Ranch in such a manner
which would prevent Buyer from obtaining ▇▇▇▇▇▇▇ County's approval of the
construction of the maximum number of Dwelling Units allocated to a Parcel
pursuant to the Minor Development Plan. Notwithstanding the foregoing, in no
event shall the terms and provisions of this paragraph be deemed to create any
rights of approval, or any other rights in Buyer, for the development of any
Parcel, the Property, Highlands Ranch or the development sale, leasing,
transfer or encumbrance of any property located therein except as specifically
set forth herein.
7.8. Installation of Utilities. Water, sanitary sewer, storm sewer,
electric, gas, telephone and cable television lines are currently located
within streets, public rights of way or easements in a location on or adjacent
to the Property. Except as set forth in Sections 7.9(b), with respect to
certain drainage improvements, and Section 7.10, with respect to the Willows
Water Main, as hereinafter defined, Buyer acknowledges that Mission shall have
no obligation whatsoever to install or extend any utility or service lines from
their present location to or within the Property. Subject to the provision of
Sections 7.9 and 7.10, Buyer acknowledges that it shall be Buyer's respon-
sibility, at Buyer's sole cost and expense, to arrange for the installation and
extension of all water, sanitary sewer, storm sewer, gas, electricity, cable
television and telephone facilities from their current locations to the
Property and thereafter within the Property. Buyer shall also be solely
responsible for the payment of the cost of any meters, tap fees, service fees
and other charges of any entities supplying water, sanitary sewer, storm sewer,
gas, electricity, cable television and telephone services. If as a result of
any such installation of utility main lines, Buyer is entitled to reimbursement
from third parties when such third parties connect to or commence using such
lines (in accordance with agreements provided by any utility companies relating
to such entitlement) Buyer shall have the right to such reimbursements.
7.9. Off-Site Drainage.
(a) Big Dry Creek Basin. Mission is the Declarant under that certain
Declaration of Covenants, Conditions and Restrictions for the Links at
Highlands Ranch dated September 29, 1992 recorded September 30, 1992 in Book
1089 at Page 628 in the records of the Clerk and Recorder of ▇▇▇▇▇▇▇ County,
21
Colorado (the "Golf Course Declaration"). The Golf Course Declaration
encumbers the property more particularly described therein, which property may
hereinafter be referred to as the Golf Course Property. Portions of the Golf
Course Property are adjacent to the Property. Pursuant to Section 4.2 of the
Golf Course Declaration, Mission, in its capacity as Declarant under the Golf
Course Declaration, has reserved the right to grant governmental authorities or
districts certain easements, licenses, rights and rights-of-way over and across
portions of the Golf Course Property which pertain to drainage and flood
control facilities. In accordance with the foregoing, Mission agrees to obtain
and/or convey such drainage and flood control easements, licenses, rights and
rights-of-way over and across the Golf Course Property which may be reasonably
necessary for Buyer to develop the Property in accordance with the Minor
Development Plan. Buyer acknowledges and agrees that any such easements,
licenses, rights and rights-of-way which relate to Mission's capacity as
Declarant under the Golf Course Declaration shall only be made or conveyed by
Mission in accordance with the terms and provisions of the Golf Course
Declaration. Buyer agrees to indemnify and hold Mission harmless from and
against any and all claims, liabilities, losses, damages, costs or expenses,
including attorneys' fees which Mission may incur as a result of Buyer's
violation of the Golf Course Declaration.
(b) Spring Creek Drainage Basin. Mission and Buyer acknowledge that
the Metropolitan District's currently existing master drainage plan (the
"Drainage Plan") anticipates the construction by the Metropolitan District of
certain drainage and flood control improvements for the Spring Creek Drainage
Basin (the "Drainage Improvements"). Buyer and Mission shall be responsible
for contacting the Metropolitan District to coordinate the construction of the
Drainage Improvements pursuant to the Drainage Plan. Buyer and Mission agree
to use good faith and due diligence in seeking the construction of the Drainage
Improvements by the Metropolitan District. In accordance with the foregoing:
(i) Mission shall cause the Metropolitan District to commence the construction
of the Drainage Improvements within 3 months from date of the Closing of the
First Parcel and complete the construction of the Drainage Improvements within
12 months from date of the Closing of the First Parcel, or (ii) if Mission is
unable to cause the Metropolitan District to commence the construction of the
Drainage Improvements within 3 months from date of the Closing of the First
Parcel and complete the construction of the Drainage Improvements within 12
months from date of the Closing of the First Parcel, Mission shall be obligated
to construct the Drainage Improvements itself, subject to delays resulting from
Force Majeure Causes, as hereinafter defined. Buyer acknowledges that Mission
has made no representation or warranty that Mission will be able to cause the
Metropolitan District to construct such Drainage Improvements. "Force Majeure
Causes" shall mean and refer to delays from causes beyond the reasonable
control of Mission, such as, but not limited to, acts of God, governmental
moratoriums, strikes, work stoppages, unavailability of or delay in receiving
labor or materials, defaults by contractors or subcontractors, weather
conditions, or fire or other casualty. For purposes of this Section 7.9 (b),
the term Drainage Improvements shall mean either temporary drainage
improvements located either on or off-site of the Property or permanent
drainage improvements located off-site of the Property; provided, however, if
temporary on-site drainage improvements are constructed on the Property such
improvements shall not unreasonably interfere with the development of the
Parcels acquired by Buyer hereunder. Buyer hereby acknowledges that Buyer has
received the Drainage Plan. Buyer agrees that the storm drainage discharge
associated with the construction of Dwelling Units on the Property will not
exceed the storm drainage discharge capacity of the Drainage Improvements as
contemplated by the Drainage Plan.
22
7.10. Willows Water Main. Buyer and Mission acknowledge that a portion
of the Property is affected by that certain thirty (30) foot wide easement
granted to the Willows Water District ("Willows District") by Easement Deed
dated April 22, 1975 and recorded April 24, 1975 in Book 275 and Page 538 of
the ▇▇▇▇▇▇▇ County Clerk and Recorders records ("▇▇▇▇▇▇▇ County Records") as
amended by that certain Relinquishment of Easement and Grant of Easement dated
January 15, 1987 and recorded January 19, 1987 in Book 694 at Page 914 of the
▇▇▇▇▇▇▇ County Records (collectively "Willows Water Easement"). Located within
the Willows Water Easement is a thirty (30) inch pressurized water main owned
and used by the Willows Water District (the "Willows Water Main"). In addition
to the terms and provisions of the Willows Water Easement, the Willows Water
Easement is affected by that certain Agreement dated April 3, 1981 between
Mission, Highlands Ranch Development Corporation, a Colorado Corporation and
the Willows District, a copy of which is attached hereto as Exhibit L (the
"Willows Water Agreement"). Missions acknowledges that in several areas along
the Willows Water Easement the earthen cover over the Willows Water Main is in
excess of the maximum cover limitations set forth in the Willows Water Easement
and that the correction of this problem must be remedied ("Water Main Cover
Correction"). In accordance with the foregoing, Mission and Buyer agree that
they shall jointly cooperate in obtaining from the Willows Water District the
specific documentation set forth below which provides for the relocation of the
Willows Water Main so as to permit Buyer to develop the Property in accordance
with the Development and Phasing Plan, the First Parcel Site Plan and the
Future Site Plans (collectively, the "Willows District Documentation"). The
Willows District Documentation shall be limited to: (a) approval of the plans
and specifications for the relocation of the Willows Water Main by the Willows
District engineer; (b) a document which terminates the existing Willows Water
Easement with respect to the Property; (c) a document which provides the
Willows District with an easement for the relocation of the existing Willows
Water Easement to a location jointly determined by Mission and the Willows
District; and (d) the approval of the Board of Directors of the Willows Water
District of (a), (b) and (c) above. The form and content of the Willows
District Documentation shall be subject to the prior written approval of both
Mission and Buyer prior to execution. In the event that the Willows District
Document is not approved by Mission and Buyer, and executed by the appropriate
parties, on or before the date which is fifteen (15) days prior to the Closing
for the First Parcel, then either party shall be entitled to terminate this
Agreement by delivery of written notice to the other party on or before such
date. In the event that the Agreement is terminated by either party in
accordance with the provisions hereof, the Deposit, other than the Non-
refundable Deposit, shall be returned to Buyer by Mission and each party shall
be relieved of all further obligations hereunder except as otherwise provided
herein. In the event that the Willows District Documentation is obtained from
the Willows District and Buyer closes the purchase of the First Parcel as
provided herein, Buyer shall be responsible for performing the relocation of
the Willows Water Line in accordance with the terms and provisions of the
Willows District Documentation. Mission agrees to provide Buyer with such
licenses and other documentation as is reasonably necessary for Buyer to
complete the Relocation of the Willows Water Line in accordance with the
Willows District Documentation. Mission agrees to reimburse Buyer for a
portion of the actual costs and expenses incurred by Buyer for the relocation
of the Willows Water Line in accordance with the provisions hereof, exclusive
of administrative costs and legal fees (the "Water Main Reimbursement Amount");
provided, however, that in no event shall Mission's reimbursement obligation
hereunder exceed $220,995.00. After completion of the relocation of the Willows
Water Main by Buyer in accordance with the provisions hereof, Mission shall pay
to Buyer the Water Main Reimbursement Amount within 30 days after Mission's
receipt of Buyer's invoice for such work, which invoice shall include such
23
backup documentation as Mission may reasonably require.
8. REPRESENTATIONS AND WARRANTIES.
8.1. Representations and Warranties of Mission. As an inducement to
Buyer to enter into this Agreement, Mission represents and warrants to, and
covenants with, Buyer as follows:
(a) This Agreement constitutes a legal, valid, and binding obligation of
Mission and (together with all documents contemplated hereby when executed and
delivered) is enforceable against Mission in accordance with its terms.
(b) Mission Viejo Company is a California corporation duly organized,
validly existing, and in good standing under the laws of the State of
California and qualified to transact business in the State of Colorado, and
individuals executing this Agreement and the documents contemplated by this
Agreement on its behalf are duly elected or appointed and validly authorized to
execute and deliver the same.
Should Mission learn of any fact, condition, development, or proposal
which is contrary to or inconsistent with the above, it will immediately so
advise Buyer in writing.
8.2. Representations and Warranties of Buyer. As an inducement to Mis-
sion to enter into this Agreement, Buyer represents and warrants to, and cove-
nants with, Mission as follows:
(a) That this Agreement constitutes a legal, valid, and binding obli-
gation of Buyer and (together with all documents contemplated hereby when
executed and delivered) is enforceable against Buyer in accordance with its
terms.
(b) Buyer is a Colorado corporation duly organized, validly existing and
in good standing under the laws of the State of Colorado and the individuals
executing this Agreement and the documents contemplated by this Agreement are
or will be duly authorized to do so.
Should Buyer learn of any fact, condition, development, or proposal which
is contrary to or inconsistent with the above, he will immediately so advise
Mission in writing.
9. DEFAULTS.
9.1. Defaults by Mission. If there is any default by Mission under this
Agreement prior to the Last Closing, Buyer may at Buyer's option, (a) declare
this Agreement terminated in which case the Deposit shall be returned to Buyer
and each party shall thereupon be relieved of all further obligations
hereunder, (b) bring an action against Mission for damages, or (c) if the
default arises after the Closing for the First Parcel, elect to treat this
Agreement as being in full force and effect and Buyer shall have the right to
seek specific performance of this Agreement. These shall be the sole remedies
of Buyer and Buyer shall not be entitled to, and hereby waives all other rights
to seek, specific performance of this Agreement, to file any notice of lis
pendens, attachment, lien or encumbrance or to take any other action which
could impair the ability of Mission to sell, transfer and freely deal with any
portion of the Property not theretofore transferred to Buyer, except as
24
otherwise provided in the first sentence of this Section 9.1.
9.2. Defaults by Buyer. If there is any default by Buyer under this
Agreement prior to the last Closing or if Buyer fails to timely construct the
Access Improvements contemplated by the Access Easement Agreement in accordance
with the provisions of Section 4 thereof, then Mission may, at Mission's
option, (a) since damages may be difficult to ascertain, retain the Deposit as
liquidated damages, and declare this Agreement terminated in which case each
party shall be relieved of all further obligations hereunder, or (b) if such
default is the failure of Buyer to comply with any obligations of Buyer
hereunder (other than the obligation of Buyer to close hereunder, or the
obligations set forth in Section 3.6 with respect to submittal of documents or
obtaining approvals by set deadlines), including, without limitation, Buyer's
failure to comply with any of its obligations which survive the termination of
this Agreement, bring an action against Buyer for damages. In addition to any
default by Buyer hereunder resulting from any failure by Buyer to comply with
any of Buyer's obligations hereunder, Buyer shall be in default hereunder if
Buyer shall file a petition in bankruptcy or insolvency or for reorganization
or arrangement under the bankruptcy laws of the United States or under any
similar act of any state, or shall voluntarily take advantage of any such law
or act by answer or otherwise, or shall be dissolved or shall make an assign-
ment for the benefit of creditors or if involuntary proceedings under any such
bankruptcy or insolvency law or for the dissolution of Buyer shall be
instituted against Buyer or a receiver or trustee shall be appointed for the
interest of Buyer under this Agreement or for all or substantially all of the
property of Buyer, and such proceedings shall not be dismissed or such
receivership or trusteeship vacated within 60 days after such institution or
appointment. The foregoing shall be the sole remedies of Mission, and Mission
shall not be entitled to, and hereby waives all rights to seek, specific
performance of this Agreement.
9.3. Rights to Cure. Notwithstanding anything to the contrary hereunder
and prior to the commencement of any action on any default, the nondefaulting
party shall provide to the defaulting party written notice of such default.
The defaulting party shall have 5 business days after receipt of such notice to
cure the alleged default, or if said default cannot reasonably be cured within
said 5-day period, the defaulting party shall in good faith commence to cure
such failure within such 5-day period and shall diligently proceed therewith to
completion.
9.4. Defaults After Closing. Each of Mission and Buyer shall be enti-
tled to pursue any and all legal and equitable remedies available to it in the
event of a default by the other party after any Closing under this Agreement as
to the Parcel(s) theretofore acquired.
10. MISCELLANEOUS.
10.1. Press Releases. Buyer and Mission agree that neither party shall
make any statement or release to the media regarding this Agreement or the
terms and provisions hereof unless the content and timing of said statement or
release shall have been approved by the other party in writing, which approval
shall not be unreasonably withheld.
10.2. Taking Prior to Closing. Other than with respect to an "Immaterial
Taking," as hereinafter defined, if any of the Property is taken by the right
of, or is included in any pending action to exercise the right of, eminent
domain, prior to the date of the applicable Closing hereunder, at Buyer's
25
option: (a) this Agreement shall remain in effect, such Closing shall never-
theless occur and Buyer shall thereupon become entitled to the entire award or
proceeds received or receivable for the portion of the Property taken and Mis-
sion shall be entitled to any award or proceeds for severance or other damages
relating to other property owned by Mission; or (b) Buyer may terminate this
Agreement by written notice to Mission, in which case the Deposit shall be
returned to Buyer and each party shall be relieved of all further obligations
hereunder. If an Immaterial Taking occurs, Mission shall be relieved of its
duty to convey title to the portion of the Property so taken or condemned, and
Mission will be entitled to receive all proceeds of any such taking or
condemnation. Any taking or condemnation for any public or quasi-public
purpose or use which does not affect access, reduce the permitted number of
Dwelling Units, reduce the value of the Property, in Buyer's reasonable
opinion, shall be deemed an "Immaterial Taking."
10.3. Agreement Not to be Recorded. Each party agrees that it shall not
cause or permit this Agreement to be recorded; provided, however, that at the
Closing of the First Parcel, the parties agree to cause a memorandum of this
Agreement to be recorded in the land records of the Clerk and Recorder of the
County of ▇▇▇▇▇▇▇, State of Colorado, which memorandum shall be in form and
substance mutually acceptable to the parties. Concurrently with the
recordation of such memorandum, Buyer shall deliver to Mission, a quitclaim
deed for each of Lots 2 through 5, Highlands Ranch Filing No. 126-A, ▇▇▇▇▇▇▇
County, Colorado which deeds shall be held by Mission pursuant to mutually
agreeable instructions. Said instructions shall provide, among other
provisions, that (i) upon Buyer's purchase of each of Lots 2 through 5,
Highlands Ranch Filing No. 126-A, ▇▇▇▇▇▇▇ County, Colorado, the quitclaim deed
with respect to the applicable Lot being held by Mission shall be returned to
the Buyer at the Closing at which the applicable Lot is purchased; and (ii)
upon Mission delivering to Buyer written notice stating that (x) Buyer is in
default under this Agreement, and (y) Buyer has failed to cure such default
within the time period provided by Section 9.3 of this Agreement, Mission may
record the quitclaim deeds then being held by it pursuant to the terms of the
instructions.
10.4. No Representations. Mission and Buyer acknowledge and agree that,
except as provided in the Sections of this Agreement entitled "Interstate Land
Sales Act and Colorado Subdivision Developers Act Exemptions" and Article 8 and
as otherwise expressly provided for elsewhere in this Agreement, neither party
has made any representations, warranties, or agreements to or on behalf of the
other party as to any matter concerning the Property, the present use thereof
or the suitability for Buyer's intended use of the Property, including, without
limitation, any representations, warranties or agreements relating to
topography, climate, air, water, water rights, utilities, present and future
zoning, soil, subsoil, environmental conditions, the purposes to which the
Property is suited, the use of adjoining or nearby properties, drainage, access
to public roads, or proposed routes of roads, or extensions thereof, or the
effect of any state or federal environmental protection laws or regulations.
Buyer represents and warrants to Mission that Buyer has made or will make
Buyer's own independent inspection and investigation of the Property and, in
entering into this Agreement, Buyer intends to rely solely on such inspection
and investigation of the Property. No patent or latent physical condition of
the Property, whether or not now known or discovered, shall affect the rights
of either party hereto. No agreement, warranty or representation, unless
expressly contained or provided for herein, shall bind Mission. Buyer expressly
waives any right of rescission and all claims for damages by reason of any
statement, representation, warranty, promise, or agreement, if any, unless
contained in this Agreement.
26
10.5. Indemnification; No Mechanic's Liens. Buyer hereby acknowledges
that the making of Investigations, Tests and Surveys prior to Closing
hereunder, are for the benefit of and at the instance of Buyer. Buyer
expressly acknowledges that nothing in this Agreement shall authorize Buyer, or
any person dealing with, through or under Buyer to subject Mission's interest
in any portion of the Property to mechanic's liens prior to Closing for the
Property. Buyer agrees to indemnify, hold harmless and defend Mission from any
claim, liability, loss, damage, cost or expense, including attorneys' fees,
which Mission may incur or which may be asserted by reason of (a) any entry on
the Property through or under Buyer prior to Closing; (b) the making of
Investigations, Tests and Surveys ordered or conducted by Buyer; or (c) any
fencing installed on the Property by Buyer pursuant to the provisions of
Section 3.11 thereof. Buyer agrees not to permit or suffer and, to the extent
so permitted or suffered, to cause to be removed and released, any mechanic's,
materialman's or other lien on account of supplies, machinery, tools,
equipment, labor or materials furnished or used in connection with the
planning, design, inspection, construction, alteration, repair or surveying of
the Property as aforesaid through or under Buyer prior to Closing hereunder.
Mission may at its option, at Buyer's cost and expense, with the assistance of
attorneys of Mission's choosing, enter into, defend, prosecute or pursue any
effort or action (whether or not litigation is involved) which Mission deems
reasonably necessary to defend itself and the Property from and against all
claims or liability arising by, through or under Buyer as set forth herein.
Buyer acknowledges and agrees that Mission may, but shall not be required to,
post or serve a notice that Mission's interest in the Property shall not be
subject to any mechanics' liens pursuant to the provisions of C.R.S. Section
▇▇-▇▇-▇▇▇, and to take such other actions as Mission deems necessary to comply
with the provisions of said statute. Notwithstanding any other provisions of
this Agreement, the obligations of Buyer under this Section shall survive any
termination of this Agreement by either Buyer or Mission.
10.6. Notices. All notices, consents or other instruments or communica-
tions provided for under this Agreement shall be in writing, signed by the
party giving the same, and shall be deemed properly given and received when
actually delivered and received or three business days after mailed, if sent by
registered or certified mail, postage prepaid, to the address for a party set
forth at the beginning of this Agreement, or as such party may designate by
written notice to the other party, with a copy, in the case of notices to
Mission, to Legal Department, Colorado Division, Mission Viejo Company, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
10.7. Entire Agreement. This Agreement constitutes the entire under-
standing between the parties with respect to the subject matter hereof, and all
prior agreements or understandings shall be deemed merged in this Agreement and
therein.
10.8. No Oral Amendment or Modifications. No amendments, waivers or
modifications hereof shall be made or deemed to have been made unless in writ-
ing executed by the party to be bound thereby.
10.9. Nonseverability. If any provision of this Agreement shall be
invalid, illegal or unenforceable, and any such provision is significant and
material, either party may, at any time prior to a Closing hereunder, at its
option, declare this Agreement null and void and of no effect, in which case
the Deposit shall be returned to Buyer and each party shall be relieved of all
further obligations hereunder. If any other provision of this Agreement shall
be invalid, illegal or unenforceable, it shall not affect or impair the valid-
27
ity, legality or enforceability of any other provision of this Agreement, and
there shall be substituted for the affected provision a valid and enforceable
provision as similar as possible to the affected provision.
10.10. Assignability. Buyer may not assign Buyer's rights or obligations
under this Agreement without the prior written consent of Mission, except to
Wellsford Residential Property Trust ("Wellsford"), an entity jointly owned by
▇▇ ▇▇▇▇ and/or The ▇▇▇▇ Company with Wellsford (the ▇▇▇▇-Wellsford Entity") or
an entity owned by Wellsford (the "Wellsford Entity") and any such attempted
assignment shall be null and void. Prior to considering consent to any
assignment, except as specifically authorized above Mission shall be entitled
to receive and review financial and other information pertaining to the
prospective assignee's real property development capabilities, as reasonably
requested by Mission. Notwithstanding the foregoing, Mission hereby agrees
that Buyer shall have the right to assign Buyer's rights hereunder with respect
to the Property or any Parcel of the property, with the consent of Mission,
which consent shall not be unreasonably withheld or delayed to any corporation,
joint venture, general partnership, limited partnership, limited liability
company, trust or other legal entity in which (i) Buyer, Wellsford, the ▇▇▇▇-
Wellsford Entity or the Wellsford Entity has an ownership equity, beneficial or
financial interest, and/or (ii) Buyer, Wellsford, the ▇▇▇▇-Wellsford Entity or
the Wellsford Entity or an entity controlled by one of them acts as manager,
contractor or developer.
10.11. Binding Effect. Subject to the Section of this Agreement entitled
"Assignability," this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
10.12. Captions for Convenience. All headings and captions used herein
are for convenience only and are of no meaning in the interpretation or effect
of this Agreement.
10.13. Applicable Law. This Agreement shall be interpreted and enforced
according to the laws of the State of Colorado.
10.14. Exhibits Incorporated. All exhibits to this Agreement are
incorporated herein and made a part hereof as if fully set forth herein.
10.15. Time of the Essence. Time is of the essence with respect to
performance required under this Agreement.
28
10.16. Brokers. Except as may be provided by separate written agreement,
each party warrants and certifies to the other party that such party has not
engaged or utilized the services of any broker in connection with this
transaction who shall be entitled to any com-mission as a result of this Agree-
ment or the transaction contemplated hereby. Each party agrees to defend,
indemnify and hold harmless the other from and against any claims for broker's
or finder's fees or commissions made by any party claiming to have dealt with
it. Not-withstanding any other provision of this Agreement, the obligations of
Buyer under this Section shall survive any termination of this Agreement by
either Mission or Buyer.
10.17. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one agreement.
10.18. Costs of Legal Proceedings. In the event that either party
institutes legal proceedings with respect to this Agreement or the transaction
contemplated hereby, including, but not limited to, appearing and participating
in any action initiated by or against the other party under the bankruptcy laws
of the United States, or similar laws of any state, the prevailing party shall
(or in the case of such a bankruptcy action by a party, the other party shall)
be entitled to recover, in addition to any other relief to which it is
entitled, its costs and expenses incurred in connection with such legal pro-
ceedings, including, without limitation, reasonable attorneys' fees. The
obligations of Buyer under this Section shall survive any termination of this
Agreement by either Mission or Buyer.
10.19. Survival of Provisions. Any provisions of this Agree-ment which
require observance or performance subsequent to the date of Closing shall con-
tinue in force and effect following the date of Closing.
10.20. General Cooperation. Notwithstanding any other provi-sion of this
Agreement to the contrary, and notwithstanding the Closing of the sale of the
Property to Buyer, Buyer and Mission agree in good faith before and after
Closing to execute such further or additional documents, and to take such other
actions, as may be reasonably necessary or appropriate to fully carry out the
intent and purposes of the parties as set forth in this Agreement.
10.21. Computation of Time. In computing any period of time under this
Agreement, the date of the act or event from which the designated period of
time begins to run shall not be included. The last day of the period so com-
puted shall be included unless it is a Saturday, Sunday, or federal legal hol-
iday, in which event the period shall run until the end of the next day which
is not a Saturday, Sunday, or federal legal holiday.
10.22. Negotiated Provisions. This Agreement shall not be construed more
strictly against one party than against the other merely by virtue of the fact
that it may have been prepared by counsel for one of the parties, it being
recognized that both Mission and Buyer have contributed substantially and
materially to the preparation of this Agreement.
10.23. The Foreign Investment In Real Property Tax Act and Colorado
Department of Revenue Form 1083. Mission shall deliver or cause to be
delivered to Buyer at Closing an affidavit executed by Mission under penalty of
perjury stating Mission's United States taxpayer identification number and that
Mission is not a foreign person in accordance with Internal Revenue Code
Section 1445(b)(2). Mission shall also deliver or cause to be delivered to
29
Buyer at Closing an affidavit executed by Mission under penalty of perjury
stating that Mission is a corporation qualified to do business in the State of
Colorado and that it maintains a permanent place of business in the State of
Colorado
10.24. No Implied Waiver. No failure by Mission to insist upon the
strict performance of any term, covenant, or provision contained in this
Agreement, no failure by Mission to exercise any right or remedy under this
Agreement, and no acceptance of full or partial payment owed to Mission during
the continuance of any default by Buyer, shall constitute a waiver of any such
term, covenant, or provision, or a waiver of any such right or remedy, or a
waiver of any such default unless such waiver is made in writing by Mission.
Any waiver of a breach of a term or a condition of this Agreement shall not
prevent a subsequent act, which would have originally constituted a default
under this Agreement, from having all the force and effect of a default.
IN WITNESS WHEREOF, the parties hereto have executed this Vacant Land
Purchase and Sale Agreement as of the day and year first above written.
MISSION:
MISSION VIEJO COMPANY, a
Attest: California corporation
By:______________________ By: /s/ F. ▇▇▇▇ ▇▇▇▇▇▇
Assistant Secretary ___________________________
Name: F. ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President,
Colorado Division
ATTEST: BUYER:
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ THE ▇▇▇▇ COMPANY, a Colorado
____________________ corporation
__________ Secretary
By: /s/ ▇▇ ▇▇▇▇
______________________________
Name: ▇▇ ▇▇▇▇
Title: President
30
EXHIBIT A
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Development and Phasing Plan
[Depiction of Property Phases]
31
EXHIBIT B
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
First Parcel Site Plan
Site Improvement Plan as prepared by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Associates for The
▇▇▇▇ Company, Highlands Ranch Filing ▇▇▇-▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ and a Portion of
Planning Area 73, dated June 14, 1994, consisting of the following eleven
sheets:
SHEET 1: Legal Description with Vicinity Map and Subdivision Map
SHEET 2: Key Map
SHEETS 3 - 10
inclusive: Site Plan
SHEET 11: Details
Site Improvement Plan as prepared by ▇▇▇▇ Design, Inc. for Highlands Ranch
Filing ▇▇▇-▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ and a Portion of Planning Area 73, dated June
14, 1994, as amended July 18, 1994, consisting of the following eighteen
sheets:
SHEET L1: Key Plan, General Notes, Plan List, Index
SHEET L2: Irrigation Master Tap Plan
SHEET L3 - L10
inclusive: Landscape Plan
SHEET L11 and
L12: Fencing/Landscape Detail
SHEET L13 and
L14: Signage/Landscape Detail
SHEET L15: Landscape Details
SHEET L16: Parcel One Lighting Plan
SHEET L17: Park and Loop Drive Lighting Plan
SHEET L18: Architectural Elevations
32
EXHIBIT C
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Fencing Plan
[Depictions of Fencing]
33
EXHIBIT D
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Permitted Exceptions
1. Exception of water rights and ground water granted to Highlands Ranch De-
velopment Corporation by Mission Viejo Company in Quit Claim Deed and As-
signment dated September 26, 1980, recorded October 20, 1980, in Book 396
at Page 520, in Quit Claim Deed, Assignment and ▇▇▇▇ of Sale dated Decem-
ber 27, 1988, recorded December 27, 1988, in Book 834 at Page 63, in Quit
Claim Deed and Assignment dated February 17, 1989, and recorded March 14,
1989, in Book 844 at Page 1139, and in Quit Claim Deed and Assignment
dated April 11, 1990, recorded April 25, 1990, in Book 908 at Page 1205, a
portion of which water rights and ground water were granted to Centennial
Water and Sanitation District by Highlands Ranch Development Corporation
in Special Warranty Deed, Assignment and ▇▇▇▇ of Sale dated December 27,
1988, recorded December 27, 1988, in Book 834 at Page 84, Special Warranty
Deed and Assignment dated February 17, 1989, and recorded March 14, 1989,
in Book 844 at Page 1142, and Special Warranty Deed and Assignment dated
April 11, 1990, recorded May 18, 1990, in Book 912 at Page 613, and
subject to Relinquishment of Surface Rights dated December 27, 1988, by
Centennial Water and Sanitation District, recorded December 27, 1988, in
Book 834 at Page 119.
2. Minerals and mineral rights granted to Highlands Ranch Development Cor-
poration by Mission Viejo Company in Mineral Deed dated September 26,
1980, and recorded October 20, 1980, in Book 396 at Page 514 and mineral
substances in the "full mineral rights land" and coal in the "coal lands"
as granted to Highlands Ranch Development Corporation by Union Pacific
Land Resources Corporation in Mineral Deed dated May 1, 1981, recorded May
20, 1981, in Book 412 at Page 465, reserving to Union Pacific Land
Resources Corporation a 25 percent non- executory interest in and to such
mineral substances and coal.
3. The Planned Community District Development Guide for the New Town of
Highlands Ranch, as adopted by the Board of County Commissioners of
▇▇▇▇▇▇▇ County, Colorado, on September 17, 1979, recorded October 25,
1979, in Book 373 at Page 187 as the same has been or may be amended from
time to time.
4. Community Declaration for Highlands Ranch Community Association, Inc.,
dated September 1, 1981, and recorded September 17, 1981, in Book 421 at
Page 924.
5. Supplemental Declaration for Annexed Property No. ________ dated
__________________, to be recorded immediately prior to the recording of
the Deed.
6. Right of Way Agreement as recorded March 12, 1985 in Book 565 at Page 119.
7. Grant of Easement(s) as recorded June 18, 1985 in Book 647 at page 181;
recorded January 4, 1988 in Book 769 at Page 272; recorded January 4, 1988
in Book 769 at Page 296; and recorded December 30, 1988 in Book 834 at
34
Page 765.
8. Easement Deed as recorded April 24, 1975 in Book 275 at Page 538 and
Modification recorded January 19, 1987 in Book 694 at Page 914.
9. Easement Deed as recorded May 23, 1975 in Book 276 at Page 453.
10. Easement Deed as recorded November 18, 1975 in Book 282 at Page 589 and
Page 594.
11. Easement Deed as granted to the Mountain States Telephone and Telegraph
Company as recorded October 1, 1975 in Book 280 at Page 829.
12. Barbed wire fence traversing throughout subject property; buried electric
and telephone and CATV lines and gas easements; water line with valve and
fire hydrants; and encroachment of improvements onto subject property all
as shown on survey plat by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Associates, Job No.
M930805.
13. Notes as shown on survey by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Associates, Job No.
M930805.
35
EXHIBIT E
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Relinquishment of Surface Rights
(Note-See separate document attached)
36
RELINQUISHMENT OF SURFACE RIGHTS
THIS RELINQUISHMENT OF SURFACE RIGHTS ("Relinquishment") is made this
_____ day of _______________, 19__, by HIGHLANDS RANCH DEVELOPMENT CORPORATION,
a Colorado corporation ("Development Corp.") whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇-
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to THE ▇▇▇▇ COMPANY, a
Colorado corporation ("Surface Owner") ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. Purpose. The purpose of this Relinquishment is to relinquish rights
of Development Corp. to enter upon and use the surface of the Property, as
hereinafter defined, in connection with the development of mineral or water
resources.
2. Property. The "Property" shall mean that certain real property
located in Highlands Ranch more particularly described on Exhibit A [INSERT
LEGAL DESCRIPTION OF PARCEL BEING CONVEYED] hereto.
3. Highlands Ranch. "Highlands Ranch" shall mean the real property
located in ▇▇▇▇▇▇▇ County, Colorado, described on Exhibit A attached to the
Mineral Deed, as hereinafter defined, and also described in Exhibit A to the
Initial Water Deed, as hereinafter defined.
4. Mineral Deed. "Mineral Deed" shall mean the Mineral Deed dated
September 26, 1980, from Mission Viejo Company, a California corporation
("Mission") to Development Corp. recorded October 20, 1980, in Book 396 begin-
ning at Page 514 of the records in the office of the Clerk and Recorder of
▇▇▇▇▇▇▇ County, Colorado ("▇▇▇▇▇▇▇ County Records").
5. Initial Water Deed. "Initial Water Deed" shall mean the Quit Claim
Deed and Assignment dated September 26, 1980, from Mission to Development Corp.
recorded October 20, 1980, in Book 396 at Page 520 of the ▇▇▇▇▇▇▇ County
Records.
6. UP Mineral Deed. "UP Mineral Deed" shall mean the Mineral Deed
dated May 1, 1981, from Union Pacific Land Resources Corporation ("Union
Pacific") to Development Corp. recorded May 20, 1981, in Book 412 at Page 465
of the ▇▇▇▇▇▇▇ County Records.
7. Subsequent Water Deeds. "Subsequent Water Deeds" shall mean the
Quit Claim Deed, Assignment and ▇▇▇▇ of Sale dated December 27, 1988, from
Mission to Development Corp. recorded December 27, 1988, in Book 834 at Page 63
of the ▇▇▇▇▇▇▇ County Records, the Quit Claim Deed and Assignment, dated
February 17, 1989, recorded March 14, 1989, in Book 844 at Page 1139 of the
▇▇▇▇▇▇▇ County Records, and the Quit Claim Deed and Assignment, dated April 11,
1990, recorded April 25, 1990, in Book 908 at Page 1205.
8. Centennial Water Deeds. "Centennial Water Deeds" shall mean that
Special Warranty Deed, Assignment and ▇▇▇▇ of Sale dated December 27, 1988,
from Development Corp. to Centennial Water and Sanitation District, a Colorado
quasi-municipal corporation ("Centennial"), recorded December 27, 1988, in Book
834 at Page 84 of the ▇▇▇▇▇▇▇ County Records, the Special Warranty Deed and
Assignment, dated February 17, 1989, and recorded March 14, 1989, in Book 844
at Page 1142 in the ▇▇▇▇▇▇▇ County Records, and the Special Warranty Deed and
Assignment, dated April 11, 1990, and recorded May 18, 1990, in Book 912 at
Page 613 in the ▇▇▇▇▇▇▇ County Records, and subject to Relinquishment of
37
Surface Rights dated December 27, 1988, by Centennial Water and Sanitation
District, recorded December 27, 1988, in Book 834 at Page 119.
9. Water Rights and Ground Water. "Water Rights and Ground Water"
shall mean all of the water rights and ground water acquired by Development
Corp. under the Initial Water Deed and Subsequent Water Deeds but excluding
those portions of such water rights and ground water which were granted to
Centennial by Development Corp. in the Centennial Water Deeds.
10. Relinquishment of Surface Rights. Development Corp., for itself,
its successors and assigns, hereby relinquishes and quit claims to Surface
Owner, its successors and assigns, for the period of time as hereinafter spec-
ified, all rights of Development Corp. to enter upon the surface of all or any
portion of the Property for any purpose in connection with the development or
utilization of any minerals or mineral rights or mineral substances or coal
acquired by Development Corp. under the Mineral Deed or the UP Mineral Deed or
for any purpose in connection with the development or utilization of any of the
Water Rights and Ground Water. Nothing herein contained shall limit the right
of Surface Owner or any subsequent owner of the Property, to at any time in the
future, authorize Development Corp., its successors and assigns, to utilize all
or any portion of the Property for the development and utilization of minerals
or mineral rights, mineral substances or coal, or Water Rights or Ground Water.
11. Continued Title to Minerals and Water. Development Corp.'s under-
lying title to minerals and mineral rights, mineral substances and coal and
Water Rights and Ground Water in connection with the Property shall in no way
be affected by this instrument. In addition, the Development Corp., for
itself, its successors and assigns, excepts and reserves and shall retain the
right to develop and remove any such minerals or mineral rights, mineral sub-
stances or coal, and Water Rights or Ground Water by slant drilling, subterra-
nean entry or other means or operations conducted on the surface of any parcel
as to which Development Corp. may then have rights of surface use or by any
other suitable means or methods, provided, however, that any such slant drill-
ing, subterranean entry or other operations conducted on the surface of any
such parcel or such other suitable means or methods can be employed without
entering upon or using the surface of all or any portion of the Property and
without impairing structures, improvements or appurtenances, or the use or
support thereof, located or to be located on the Property.
12. Term of Relinquishment. The relinquishment and quit claim of sur-
face rights by Development Corp. as contained in Section 10 hereof shall be
permanent.
IN WITNESS WHEREOF, Highlands Ranch Development Corporation has executed
this Relinquishment of Surface Rights as of the day and year first above
written.
HIGHLANDS RANCH DEVELOPMENT
CORPORATION, a Colorado corporation
By:________________________________
Vice President
STATE OF COLORADO )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
38
The foregoing instrument was acknowledged before me this _____ day of
_________________, 19__, by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Vice President of Highlands
Ranch Development Corporation, a Colorado corporation.
WITNESS my hand and official seal.
My commission expires: _____________________.
___________________________________
(SEAL) Notary Public
39
EXHIBIT F
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
First Parcel Deed Form
40
EXHIBIT G
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Subsequent Parcels Deed Form
41
EXHIBIT H
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Supplemental Declaration Form
42
EXHIBIT I
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Easement and Development Agreement
43
EXHIBIT J
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Access Easement Agreement
44
EXHIBIT K
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Contiguous Area Report
45
EXHIBIT L
TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(The ▇▇▇▇ Company - PA 67 and PA 73)
Willows Water Agreement
46
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED VACANT LAND
PURCHASE AND SALE AGREEMENT
(▇▇▇▇/Wellsford - Lots 1-5, Filing No. 126-A)
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED VACANT LAND PURCHASE
AND SALE AGREEMENT (this "Amendment") is made as of the 1st day of May, 1996,
between MISSION VIEJO COMPANY, a California corporation ("Mission"), whose
address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attn: Land Sales Department, and WELLSFORD PARK HIGHLANDS CORP., a Colorado
corporation, whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ("Buyer").
1. GENERAL.
1.1 Purchase Agreement. The "Purchase Agreement" shall mean that
certain Second Amended and Restated Vacant Land Purchase and Sale Agreement
dated March 23, 1995, whereby Mission agreed to sell, and The ▇▇▇▇ Company, a
Colorado corporation ("The ▇▇▇▇ Company") agreed to buy, certain property
located in ▇▇▇▇▇▇▇ County, Colorado more particularly described therein, on the
terms and conditions more particularly set forth therein. The ▇▇▇▇ Company
assigned its interest as "Buyer" under the Purchase Agreement to Buyer pursuant
to the terms and provisions of that Assignment and Assumption of Amended and
Restated Vacant Land Purchase and Sale Agreement dated May 2, 1995. Terms
defined in the Purchase Agreement shall have the same meaning in this Amendment
unless otherwise provided herein, or the context otherwise requires.
1.2 Purpose of Amendment. The parties desire to amend certain
provisions of the Purchase Agreement in conjunction with Buyer's or its
assignee's acquisition of ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ Ranch Filing 126-A, as described in
the Lot Line Adjustment Certificate recorded April 29, 1996 at Reception No.
9622585, in Book 1337 on Pages 324-326 in the records of the Clerk and Recorder
of ▇▇▇▇▇▇▇ County, Colorado ("Lot 2A"). The parties enter into this Amendment
to reflect their agreement with regard to the matters set forth herein.
1.3 Consideration. The parties enter into this Amendment in
consideration of the mutual covenants contained herein and of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged.
1.4 Incorporation. The terms and provisions of this Amendment are
hereby incorporated into the Agreement, and, except for the amendments herein
contained, all of the terms and provisions of the Agreement shall remain in
full force and effect, unaltered and unchanged by this Amendment. To the
extent that the terms and provisions of this Amendment conflict with the terms
and provisions of the Purchase Agreement, the terms and provisions of this
Amendment shall control.
2. AMENDMENTS TO AGREEMENT.
2.1 Density Allocation. The Development and Phasing Plan attached to
the Purchase Agreement provides for the allocation of ▇▇▇ ▇▇▇▇▇▇▇▇ Units to Lot
2A. Mission and Buyer hereby amend the Development and Phasing Plan to provide
for the allocation of ▇▇▇ ▇▇▇▇▇▇▇▇ Units to Lot 2A. The remaining 12 Dwelling
Units previously allocated to Lot 2A pursuant to the Purchase Agreement may be
allocated by Buyer to the remaining three Parcels in the Property in any manner
47
Buyer deems fit in Buyer's reasonable discretion subject to Mission's right to
review the Site Plan for a particular Parcel under the Purchase Agreement and
the Deed applicable to such Parcel.
2.2 Amendments to Development Guide. Mission acknowledges and
agrees that Mission will provide Buyer with written notice of any proposed
amendment ("Amendment") to the Development Guide affecting the Property which
is initiated by Mission. Such notice shall be delivered to ▇▇▇▇▇▇ ▇. English,
▇▇▇▇ Design Group, Inc, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, or
to such other person or address as Buyer may direct. Buyer shall have the
right to comment upon, and object to, the proposed Amendment provided that such
comments and objections are received by Mission within fifteen (15) business
days of Buyer's receipt of the proposed Amendment. If Buyer reasonably
believes that the proposed Amendment will adversely affect the Property,
Mission shall use its best efforts to exclude the Property from the effect of
the proposed Amendment. Buyer acknowledges that Mission shall be entitled to
submit the proposed Amendment to ▇▇▇▇▇▇▇ County for its review during Buyer's
fifteen (15) day review period. Notwithstanding anything to the contrary
contained herein, in no event shall the terms and provisions of this paragraph
be deemed to: (a) create any rights of approval, or any other rights in Buyer,
for the development of any other property within Highlands Ranch other than the
Property, or the development, sale, leasing, transfer or encumbrance of any
property located therein except as specifically set forth herein; or (b)
prevent Mission from finalizing the proposed Amendment with respect to property
within Highlands Ranch other than the Property.
2.3 Boundary - Access Easement. Mission and Buyer have amended the
configuration of Lot 2A in accordance with the Subdivision Boundary (Lot Line)
Adjustment Map (the "Boundary Adjustment Map"), recorded April 29, 1996 at
Reception No. 9622585 in Book 1337, on Pages 324-326. In accordance with the
foregoing, the Base Purchase Price for Lot 2A shall be adjusted to reflect the
increased acreage of Lot 2A. In consideration of the foregoing, Buyer agrees
to grant to Mission an access easement over and across a portion of Lot 2A (the
"Access Easement"). The Access Easement granted to Mission hereunder shall be
in the form of the Access Easement Agreement attached hereto as Exhibit A (the
"Access Easement Agreement") and the location of the Access Easement shall be
as described on Exhibit A to the Access Easement Agreement.
IN WITNESS WHEREOF, this Amendment has been executed by the parties as of
the day and year first above written.
MISSION VIEJO COMPANY, a California corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President,
Sales and Marketing
WELLSFORD PARK HIGHLANDS CORP., a Colorado
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
48
___________________________________
Vice President
49
Exhibit A
Form of Access Easement Agreement
