PCY HOLDINGS, LLC and KB HOME COLORADO INC. CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE (Sky Ranch)
Exhibit 10.21
PCY HOLDINGS, LLC
and
KB HOME COLORADO INC.
(Sky
Ranch)
Table of Contents
|
1
|
Purchase
and Sale
|
2
|
|
2
|
Purchase
Price.
|
2
|
|
3
|
Payment
of Purchase Price
|
3
|
|
4
|
Seller’s
Title
|
3
|
|
5
|
Seller
Obligations
|
7
|
|
6
|
Pre-Closing
Conditions
|
10
|
|
7
|
Closing
|
11
|
|
8
|
Closings;
Closing Procedures
|
12
|
|
9
|
Seller’s
Delivery of Title
|
15
|
|
10
|
Due
Diligence Period; Acceptance of Property; Release and
Disclaimer
|
16
|
|
11
|
Seller’s
Representations
|
22
|
|
12
|
Purchaser’s
Obligations
|
24
|
|
13
|
Force
Majeure.
|
26
|
|
14
|
Cooperation
|
27
|
|
15
|
Fees
|
27
|
|
16
|
Water
and Sewer Taps; Fees; and District Matters.
|
27
|
|
17
|
Reimbursements
and Credits
|
29
|
|
18
|
Name
and Logo
|
29
|
|
19
|
Renderings
|
30
|
|
20
|
Communications
Improvements
|
30
|
|
21
|
Soil
Hauling
|
30
|
|
22
|
Specially
Designated Nationals and Blocked Persons List
|
31
|
|
23
|
Assignment
|
31
|
|
24
|
Survival
|
31
|
|
25
|
Condemnation
|
31
|
|
26
|
Brokers
|
32
|
|
27
|
Default
and Remedies
|
32
|
|
28
|
General
Provisions.
|
33
|
DEFINITIONS
“Alternative
Service” shall have the meaning set forth in Exhibit
C.
“Architectural
Review Committee” shall have the meaning set forth in
Section 12(d).
“Authorities”
and “Authority” shall have the
meaning set forth in the Recitals.
“BMPs”
shall have the meaning set forth in Section 28(x).
“Board”
shall have the meaning set forth in Section 16(b).
“CDs”
shall have the meaning set forth in Section 5(a)(i).
“Closed”
shall have the meaning set forth in Section 7.
“Closing
Date” shall have the meaning set forth in Section
8(b).
“Closing
Purchase Price Payment” shall have the meaning set
forth in Section 2(a).
“Closing”
shall have the meaning set forth in Section 7.
“Communication
Improvements” shall have the meaning set forth in
Section 20.
“Communications”
shall have the meaning set forth in Section 28(j).
“Completion
Notice” shall have the meaning set forth in Section
5(b).
“Confidential
Information” shall have the meaning set forth in
Section 28(bb).
“Continuation
Notice” shall have the meaning set forth in Section
10(a).
“Contract”
shall have the meaning set forth in the Recitals.
“County
Records” shall have the meaning set forth in Section
5(a)(i).
“County”
shall have the meaning set forth in the Recitals.
“Deposit”
shall have the meaning set forth in Section 3(a).
“Design
Guidelines” shall have the meaning set forth in
Section 12(d).
“Development”
shall have the meaning set forth in the Recitals.
“District
Improvements” shall have the meaning set forth in
Section 16(b).
“District”
shall have the meaning set forth in Section 9(d).
“Due
Diligence Period” shall have the meaning set forth in
Section 10(a).
“Easement”
shall have the meaning set forth in Section 20.
“Effective
Date” shall have the meaning set forth in the
Recitals.
“Entitlements”
shall have the meaning set forth in Section 5(a)(i).
“Environmental
Claim” shall have the meaning set forth in Section
10(h).
“Environmental
Laws” shall have the meaning set forth in Section
10(g).
“EPA”
shall have the meaning set forth in Section 10(c).
i.
“Escalator”
shall have the meaning set forth in Section 2(b).
“Feasibility
Review” shall have the meaning set forth in Section
10(a).
“Filing”
and “Filings” shall have the
meaning set forth in the Recitals.
“Final
Approval” shall have the meaning set forth in Section
5(a)(ii).
“Final
Plat” shall have the meaning set forth in Section
5(a)(i).
“Final
Subdivision Documents” shall have the meaning set
forth in Section 5(a)(i).
“Finished
Lot Improvement Deadline” shall have the meaning set
forth in Section 8(b).
“Finished
Lot Improvements” shall have the meaning set forth in
the Recitals.
“First
Closing” shall have the meaning set forth in Section
1.
“Force
Majeure” shall have the meaning set forth in Section
13.
“General
Assignment” shall have the meaning set forth in
Section 8(d)(iii)(9).
“Good
Funds” shall have the meaning set forth in Section
2(a).
“Government
Warranty Period” shall have the meaning set forth in
Exhibit C, Section 6(a).
“Governmental
Warranty” shall have the meaning set forth in Exhibit
C, Section 6(a).
“Hazardous
Materials” shall have the meaning set forth in Section
10(g).
“Homebuyer
Disclosure” shall have the meaning set forth in
Section 12(e).
“House
Plans” shall have the meaning set forth in Section
12(d)(i).
“Infrastructure
Improvements” shall have the meaning set forth in
Section 17.
“Lien
Affidavit” shall have the meaning set forth in Section
4(a).
“Lot”
and “Lots” shall have the
meaning set forth in the Recitals.
“Lotting
Diagram” shall have the meaning set forth in the
Recitals.
“Master
Commitment” shall have the meaning set forth in
Section 4(a).
“Master
Covenants” shall have the meaning set forth in Section
4(d).
“Master
Declaration” shall have the meaning set forth in
Section 4(d).
“Metro
District Payments” shall have the meaning set forth in
Section 16(b).
“New
Exception Objection” shall have the meaning set forth
in Section 4(b).
“New
Exception Review Period” shall have the meaning set
forth in Section 4(b).
“New
Exceptions” shall have the meaning set forth in
Section 4(b).
“NOI”
shall have the meaning set forth in Section 28(x).
“Non-Government
Warranty Period” shall have the meaning set forth in
Exhibit C, Section 6(b).
“Non-Government
Warranty” shall have the meaning set forth in Exhibit
C, Section 6(b).
ii.
“Non-Seller
Caused Exceptions” shall have the meaning set forth in
Section 4(b).
“NORM”
shall have the meaning set forth in Section 10(c).
“OFAC”
shall have the meaning set forth in Section 22.
“Offsite
Infrastructure Escrow Agreement” shall have the
meaning set forth in Exhibit C.
“Other
New Exceptions” shall have the meaning set forth in
Section 4(b).
“Overex”
shall have the meaning set forth in Section 10(e).
“Permissible
New Exceptions” shall have the meaning set forth in
Section 4(b).
“Permitted
Exceptions” shall have the meaning set forth in
Section 9.
“PIF
Percentage” shall have the meaning set forth in
Section 9(e).
“Property”
shall have the meaning set forth in the Recitals.
“Public
Improvement Fee” or “PIF” shall have the
meaning set forth in Section 9(e).
“Public
Improvements” shall have the meaning set forth in
Exhibit C, Section 6(a).
“Punch-List
Items” shall have the meaning set forth in Section
5(b).
“Purchase
Price” shall have the meaning set forth in Section
2.
“Purchaser
Parties” shall have the meaning set forth in Section
10(i).
“Purchaser’s
Geotechnical Reports” shall have the meaning set forth
in Section 10(e).
“Purchaser’s
SWPPP” shall have the meaning set forth in Section
28(x).
“Purchaser”
shall have the meaning set forth in the Recitals.
“Rangeview”
shall have the meaning set forth in Section 16(a).
“Records”
shall have the meaning set forth in Section 3(d)(i).
“Release”
shall have the meaning set forth in Section 3(d)(i).
“Representatives”
shall have the meaning set forth in Section 28(bb).
“SDF”
shall have the meaning set forth in Section
16(c)(iii).
“SDP
Criteria” shall have the meaning set forth in Section
12(d).
“Second
Closing” shall have the meaning set forth in Section
1.
“Seller
Caused Exception” shall have the meaning set forth in
Section 4(b).
“Seller
Cure Period” shall have the meaning set forth in
Section 4(b).
“Seller
Documents” shall have the meaning set forth in Section
10(a).
“Seller
Party” or “Seller Parties” shall
have the meaning set forth in Section 10(h).
“Seller’s
Actual Knowledge” shall have the meaning set forth in
Section 11(h).
“Seller’s
Condition Precedent” shall have the meaning set forth
in Section 6(a).
iii.
“Seller’s
Deed of Trust” shall have the meaning set forth in
Section 3(d)(i).
“Seller’s
Note” shall have the meaning set forth in Section
3(d)(i).
“Seller’s
Representations” shall have the meaning set forth in
Section 11.
“Seller”
shall have the meaning set forth in the Recitals.
“SFD
45’ Lots” shall have the meaning set forth in
the Recitals.
“Sidewalks”
shall have the meaning set forth in Exhibit C, Section
5.
“Sky
Ranch” shall have the meaning set forth in the
Recitals.
“Survey”
shall have the meaning set forth in Section 4(a).
“SWPPP”
shall have the meaning set forth in Section 28(x).
“Takedown
1 Finished Lot Improvement Deadline” shall have the
meaning set forth in Section 8(b).
“Takedown
1 Closing Date” shall have the meaning set forth in
Section 8(b).
“Takedown
1 Lots” shall have the meaning set forth in the
Recitals.
“Takedown
2 Closing Date” shall have the meaning set forth in
Section 8(b).
“Takedown
2 Closing” shall have the meaning set forth in Section
8(b).
“Takedown
2 Lots” shall have the meaning set forth in the
Recitals.
“Takedown
3 Closing Date” shall have the meaning set forth in
Section 8(b).
“Takedown
3 Closing” shall have the meaning set forth in Section
8(b).
“Takedown
3 Lots” shall have the meaning set forth in the
Recitals.
“Takedown
Commitment” shall have the meaning set forth in
Section 4(b).
“Takedown”
shall have the meaning set forth in the Recitals.
“Tap
Purchase Agreement” shall have the meaning set forth
in Section 16(a).
“Third
Closing” shall have the meaning set forth in Section
1.
“Title
Company” shall have the meaning set forth in Section
4(a).
“Title
Objections” shall have the meaning set forth in
Section 4(a).
“Title
Policy” shall have the meaning set forth in Section
4(a).
“Tree
Lawns” shall have the meaning set forth in Exhibit C,
Section 5.
iv.
CONTRACT FOR PURCHASE
AND SALE OF REAL ESTATE
THIS
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE (this "Contract")
is entered into as of the last date of the signatures hereto (the
"Effective
Date"), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company ("Seller"),
and KB HOME COLORADO INC., a Colorado corporation ("Purchaser").
WHEREAS, Seller is
developing a master planned residential community to be known as
"Sky
Ranch" which is located in Arapahoe County, Colorado
(“County”).
The Sky Ranch master planned residential community may also be
referred to herein as the "Development".
The preliminary concept map for Phase A of the Development is
depicted on Exhibit A
attached hereto. The Development is being platted in several
subdivision filings and developed in phases. Each subdivision
filing is hereinafter sometimes respectively referred to as a
“Filing”
and collectively as “Filings”.
WHEREAS, Seller
desires to sell to Purchaser, and Purchaser desires to purchase and
obtain from Seller, approximately 149 platted single family
detached residential lots (individually referred to as a
"Lot" and
collectively as the "Lots") in
the Development which will be finished in accordance with this
Contract and which will be used for the construction of single
family residential dwellings upon the terms and conditions set
forth in this Contract.
WHEREAS, Seller is
selling residential lots within the Development to multiple
homebuilders, including Purchaser. The Lots to be sold by Seller
and acquired by Purchaser that are located within the Development
shall be hereinafter collectively referred to as the "Property."
The Lots will be conveyed at one or more Closings as more
particularly provided herein and each such Closing may be referred
to herein as a “Takedown.”
The Lots which are to be conveyed at the first Closing shall be
sometimes hereinafter collectively referred to as the "Takedown 1
Lots"; the Lots which are to be conveyed at the second
Closing shall be sometimes hereinafter collectively referred to as
the "Takedown 2
Lots"; and the Lots which are to be conveyed at the third
Closing shall be sometimes hereinafter collectively referred to as
the "Takedown 3
Lots"; the Lots which are to be conveyed at the fourth
Closing shall be sometimes hereafter collectively referred to as
the "Takedown 4
Lots"; the Lots which are to be conveyed at the fifth
Closing shall be sometimes hereafter collectively referred to as
the "Takedown 5
Lots"; and the Lots which are to be conveyed at the sixth
Closing shall be sometimes hereafter collectively referred to as
the "Takedown 6
Lots."
WHEREAS, as of the
Effective Date, the Lots have not been subdivided pursuant to a
recorded final subdivision plat. The number and location of the
Lots to be acquired by Purchaser are generally depicted on the
preliminary concept map for Phase A of the Development attached
hereto as Exhibit A (the
"Lotting
Diagram"). The precise number, dimension and location of the
Lots will be established by the Final Plat (hereafter defined) for
such Lots at the time it is approved by the County and/or any other
relevant governmental authority (collectively, the "Authorities"
and each an “Authority”).
As of the Effective Date, the parties anticipate that Purchaser
will acquire approximately 149 Lots, of which approximately 103 are
approximately 45 feet wide by approximately 110 feet deep for the
construction of single family detached homes (“SFD 45’
Lots”) and approximately 46 Lots are approximately 50
feet wide by approximately 110 feet deep for the construction of
single-family detached homes (“SFD 50’
Lots”).
WHEREAS, the Lots
which are acquired at each Closing will be finished lots and Seller
will construct or cause to be constructed certain infrastructure
improvements for the Lots as described on Exhibit C attached hereto (the
"Finished Lot
Improvements").
1. Purchase and
Sale. The Property
shall be purchased at six (6) Closings. Subject to the terms and
conditions of this Contract, Seller agrees to sell to Purchaser,
and Purchaser agrees to purchase from Seller, on or before the
dates set forth in Section 6(b) below, the Lots in each
Takedown, as generally depicted on the Lotting Diagram and as
follows:
At the
Takedown 1 Closing (“First
Closing”), twenty (25) Lots of which 9 are SFD
45’ Lots and 16 are SFD 50’ Lots;
At the
Takedown 2 Closing (“Second
Closing”), twenty-four (25) Lots of which 15 are SDF
45’ Lots and 10 are SFD 50’ Lots;
At the
Takedown 3 Closing (“Third
Closing”), twenty-four (25) Lots of which 25 are SFD
45’ Lots and 0 are SFD 50’ Lots;
At the
Takedown 4 Closing (“Fourth
Closing”), twenty-four (24) Lots of which 24 are SFD
45’ Lots and 0 are SFD 50’ Lots;
At the
Takedown 5 Closing (“Fifth
Closing”), twenty-four (25) Lots of which 25 are SFD
45’ Lots and 0 are SFD 50’ Lots; and
At the
Takedown 6 Closing (“Sixth
Closing”), twenty-four (25) Lots of which 5 are SFD
45’ Lots and 20 are SFD 50’ Lots.
Notwithstanding the
foregoing, however, the parties acknowledge and agree that the
parties shall negotiate during the Due Diligence Period to reach
agreement on a mutually acceptable site plan for the Lots and that
the exact number and location of the Lots within each Takedown are
subject to adjustment based upon the approval by the Authorities of
the Final Plat (as hereinafter defined) that includes the Lots to
be acquired by Purchaser at each Takedown. The precise number,
dimension (subject to the provisions of this Contract), location
and legal description of the Lots will be established at the time
the Final Plat for such Lots is approved by the County and/or any
other Authority, and upon approval of each such Final Plat the
parties shall execute an amendment to this Contract setting forth
the legal description of those Lots included in the approved Final
Plat.
The
purchase price to be paid by Purchaser to Seller for each Lot (the
"Purchase
Price") shall consist of the Closing Purchase Price Payment
(as hereinafter defined). The Purchase Price for each Lot shall be
calculated as provided in the following Section 2(a) and shall be
subject to adjustment as provided in Section 2(b)
below:
(a) Purchase Price Payments. For
each Lot the Purchase Price shall be the “Closing Purchase
Price Payment” of Sixty Seven Thousand Five Hundred
and 00/100 Dollars ($67,500.00) for each SFD 45’ Lot and
Seventy Five Thousand and 00/100 Dollars ($75,000.00) for each SFD
50’ Lot, to be paid by Purchaser to the Title Company as
escrow agent for the benefit of Seller at the applicable Closing by
wire transfer or other immediately available and collectible funds
(“Good
Funds”) (subject to adjustment as hereinafter provided
in Section 2(b) of this Contract);
(b) Purchase Price Escalator. The
Purchase Price of each Lot that is acquired at any Closing after
the First Closing will increase by an amount equal to the amount of
simple interest that would accrue on the Purchase Price for a Lot
for the period elapsing between the date that the First Closing
occurs until the date the applicable Closing occurs, at a per annum
rate equal to two and one-half percent (2.5%) (the
“Escalator”).
By way of example and for clarification purposes only, if the
Purchase Price of a Lot at the Closing of the Takedown 1 Lots is
$67,500, then at a subsequent Closing occurring 12 months (365
days) following the date of the closing of the Takedown 1 Lots, the
Purchase Price for a Lot at such subsequent Closing will be
$69,187.50, which is calculated as follows: $67,500 + ($67,500 x
..025) = $69,187.50.
3. Payment of Purchase
Price. The Purchase
Price for each of the Lots, as determined pursuant to Section 2 above, shall be payable as
follows:
(a) ▇▇▇▇▇▇▇ Money Deposit. Within
three (3) business days following the Effective Date, Purchaser
shall deliver to the Title Company (as defined in Section 4(a) hereof) an ▇▇▇▇▇▇▇ money
deposit in the amount of $100,000.00 (“Initial
Deposit”). Within three (3) business days following
the expiration of the Due Diligence Period, Purchaser shall deliver
to Title Company an additional ▇▇▇▇▇▇▇ money deposit in the amount
$100,000.00 (“Second
Deposit”). Within three (3) business days following
Final Approval (as hereinafter defined) of the FDP (as hereinafter
defined), Purchaser shall deliver to Title Company an additional
▇▇▇▇▇▇▇ money deposit in the amount of $200,000.00
(“Final
Deposit”). The Title Company will act as escrow agent
and invest the ▇▇▇▇▇▇▇ money deposits in a federally insured
institution at the highest money market rate available. The Initial
Deposit, the Second Deposit, the Final Deposit and all interest
earned thereon shall be referred to herein as the "Deposit."
The Deposit shall be paid in Good Funds. The Deposit will be
applied to the Closing Purchase Price Payment for the Takedown 6
Lots. If this Contract is terminated prior to the Deposit being
fully applied to the Purchase Price at the last Closing, the
Deposit shall be paid to Seller, except as provided elsewhere
herein.
(b) Closing Purchase Price Payment.
That portion of the Purchase Price for each Lot that is identified
as the Closing Purchase Price Payment in Section 2 above shall be
paid by Purchaser to Seller at the Closing of the applicable
Lot.
(a) Preliminary Title Commitment.
Within ten (10) business days after the Effective Date, Seller
shall furnish to Purchaser, at Seller’s expense, a current
commitment (the "Master
Commitment") for an ALTA Title Policy (“Title
Policy”) for the Property issued by Land Title
Guarantee Company ("Title
Company") and underwritten by First American Title Insurance
Company, together with copies of the instruments listed in the
schedule of exceptions in the Master Commitment. If the Master
Commitment contains any exceptions from coverage which are
unacceptable to Purchaser, then Purchaser shall object to the
condition of the Master Commitment in writing within forty-five
(45) days of Purchaser’s receipt of the Master Commitment
together with copies of all documents constituting exceptions to
title (the "Title
Objections"). Upon receipt of the Title Objections, Seller
may, at its option and at its sole cost and expense, clear the
title to the Property of the Title Objections. In the event Seller
fails, or elects not to clear the title to the Property of the
Title Objections on or before the date that is ten (10) days before
the expiration of the Due Diligence Period, the Purchaser, as its
sole remedy, may elect before the expiration of the Due Diligence
Period either: (i) to terminate this Contract, in which event the
Deposit shall be promptly returned to Purchaser, Purchaser shall
return to Seller all information and materials received by
Purchaser from Seller pertaining to the Property, and thereafter
the parties shall have no further rights or obligations under this
Contract except as otherwise provided in Section 12(c) below; or (ii) to
waive such objections and proceed with the transactions
contemplated by this Contract, in which event Purchaser shall be
deemed to have approved the title matters as to which its Title
Objections have been waived. If Purchaser fails to provide the
Title Objections prior to the expiration of the above-referenced
sixty (60) day period required by this Section 4(a), Purchaser shall be deemed
to have elected to waive its objections as described in the
preceding clause. If Purchaser fails to notify Seller of its
election to terminate this Contract or waive it objections,
Purchaser shall be deemed to have elected to waive its objections
to any title matter that Seller has failed or elected not to cure.
Seller shall release any monetary lien caused or created by Seller
against the Property with respect to that portion of the Property
to be acquired at a particular Closing, other than non-delinquent
real estate taxes and assessments and Permitted Exceptions, and
such monetary liens shall not constitute Permitted Exceptions (as
hereinafter defined). At each Closing, Seller shall execute and
deliver the Title Company's standard form mechanic's lien affidavit
(the “Lien
Affidavit”) in connection with the standard printed
exception for liens arising against the Lots purchased at the
Closing for work or materials ordered or contracted for by Seller,
and to the extent required by the Title Company a commercially
reasonable indemnity agreement (the “Title Company Indemnity”),
provided, however, if Purchaser determines during the Due Diligence
Period that the Title Company refuses or is unwilling to delete the
standard printed exception for liens as part of extended coverage
despite Seller’s offer to execute and deliver the Lien
Affidavit and Title Company Indemnity, then Purchaser will have the
right to terminate this Contract on or before the expiration of the
Due Diligence Period whereupon the Deposit will be returned to
Purchaser, or Purchaser may proceed with the Closing in which event
the Title Policy will contain, and the Lots will be conveyed
subject to, the standard printed exception for liens unless the
Title Company thereafter agrees thereafter to delete such lien
exception, however, the Purchaser shall have no further termination
rights if the Title Company does not agree to do so. Seller shall
request that the Takedown Commitment (as hereinafter defined)
provide for the deletion of the other standard printed exceptions
from the Title Policy as part of extended coverage (provided that
Seller's only obligation with respect thereto shall be to provide a
copy of Seller’s existing survey ("Survey"), if
any, of the land that contains the Lots, obtain and furnish a plat
certification issued by a licensed surveyor, and to execute the
Title Company's Lien Affidavit with respect to Seller's acts, in
form and substance reasonably acceptable to Seller). Seller has no
obligation to provide a new Survey or to update any existing
Survey.
(b) Subsequently Disclosed
Exceptions. Not less than fifteen (15) days prior to the
applicable Closing, in conjunction with Seller’s delivery of
the applicable Completion Notice (hereafter defined), Seller shall
provide the Plat Certification (hereafter defined) and request the
Title Company issue an updated title commitment for that portion of
the Property to be acquired at such Closing (each a "Takedown
Commitment"), together with copies of any additional
instruments listed in the schedule of exceptions which are not
reflected in the Master Commitment furnished pursuant to
Section
4(a) above or in any prior
Takedown Commitment. Additional items disclosed by a Takedown
Commitment that affect title to the subject Property are referred
to as “New
Exceptions”. New Exceptions affecting title to the
subject Property that are approved or deemed approved by the
provisions of this Contract are referred to as “Permissible New
Exceptions” and all other New Exceptions are referred
to as “Other New
Exceptions”. Purchaser has no right to object to any
Permissible New Exception. Purchaser shall have a period of seven
(7) days from the date of its receipt of such Takedown Commitment
and a copy of the New Exceptions (the "New Exception
Review Period") to review and to approve or disapprove any
Other New Exceptions. If the Other New Exception is unacceptable to
Purchaser, Purchaser shall object to the Other New Exception in
writing within seven (7) days from the date of Purchaser’s
receipt of the Takedown Commitment, together with a copy of the New
Exceptions (the "New Exception
Objection"). Upon receipt of the New Exception Objection,
Seller shall cure the New Exception Objection (by deletion or, with
Purchasers approval, insuring over or endorsement) to the extent
that such Other New Exception was caused or created by Seller
("Seller Caused
Exception"). If the New Exception Objection relates to an
Other New Exception that was not caused by Seller
(“Non-Seller Caused
Exception”), Seller may, at its sole discretion, cure
the New Exception Objection, within fifteen (15) days of receipt of
the New Exception Objection (“Seller Cure
Period”) and the applicable Closing Date will be
extended to accommodate the Seller Cure Period. In the event Seller
fails, or elects not to cure a Non-Seller Caused Exception within
such fifteen (15) day period, the Purchaser, as its sole remedy,
may elect within five (5) days after the end of the Seller Cure
Period either: (i) to terminate this Contract as to the Lots
affected by such New Exception, in which event the Deposit shall be
returned to Purchaser and the parties shall have no further rights
or obligations under this Contract as to such Lots not theretofore
purchased; or (ii) to waive such objection and proceed with
the acquisition of the Lots in such Takedown, in which event
Purchaser shall be deemed to have approved the New Exception. If
Purchaser fails to notify Seller of its election to terminate this
Contract as to the applicable Lots in accordance with the foregoing
sentences within five (5) days after the expiration of the Seller
Cure Period (i) Purchaser shall be deemed to have elected to waive
its objections as described in the preceding sentences (ii),
and all such items shall be deemed to be Permitted
Exceptions.
(c) Permitted Exceptions; Additional
Easements. Seller shall convey title to the Lots included in
each Takedown of the Property to Purchaser at the Closing for such
Takedown subject to the Permitted Exceptions described in
Section 9 hereof. Prior to each such
Closing, Seller shall have the right, subject to the limitations
set forth below and in Exhibit
B and provided Seller shall advise and provide copies of
same to Purchaser promptly after Seller becomes aware of same, to
utilize the reservation of rights set forth on Exhibit B hereof, to convey additional
easements as Permissible New Exceptions to utility and cable
service providers, governmental or quasi-governmental Authorities,
metropolitan, water and sanitation districts, homeowners
associations or property owners associations or other entities that
serve the Development or adjacent property for construction of
utilities and other facilities to support the Development or such
adjacent property, including but not limited to sanitary sewer,
water lines, electric, cable, broad-band and telephone
transmission, storm drainage and construction access easements
across the Property not yet acquired by Purchaser, allowing Seller
or its assignees the right to install and maintain sanitary sewer,
water lines, cable television, broad-band, electric, telephone and
other utilities on the Property and on the adjacent property owned
by Seller and/or its affiliates, and further, to accommodate storm
drainage from the adjacent property. Such easements shall require
the restoration of any surface damage or disturbance caused by the
exercise of such easements, shall not be located within the
building envelope of any Lot, shall not materially and adversely
affect the value, use or enjoyment of (i) the Lots affected or
the remaining portion of the Property on which such easements are
to be located, or (ii) any adjoining property of
Purchaser.
(d) Master Covenants. Prior to the
Takedown 1 Closing, Seller shall, subject to the limitations set
forth below, prepare covenants, conditions and restrictions for the
Development or the portion thereof in which the Property is located
(the "Master
Declaration") incorporating architectural and design
standards and guidelines, use limitations and restrictions and
which may establish an owners association or provide that the
District shall administer the Master Declaration, among other
matters, together with such supplemental declarations as may have
been or may be recorded to subject the Property to the provisions
of the Master Declaration (collectively, the "Master
Covenants"). Seller shall provide a draft of the Master
Covenants in substantially the form to be recorded to Purchaser for
Purchaser’s review not less than twenty (20) days prior to
the expiration of the Due Diligence Period. If the Master Covenants
contain any provisions which are unacceptable to Purchaser in
Purchaser’s reasonable discretion, Purchaser shall object to
such provisions with particularity in writing within ten (10) days
of receipt of the draft Master Covenants. Upon receipt of such
objection, Seller may, at its option, modify the objectionable
provisions of the Master Covenants within ten (10) days of receipt
of such objection from Purchaser. In the event Seller fails or
elects in its discretion not to modify the objectionable provisions
of the Master Covenants within such ten (10) day period, Purchaser
shall have the right as its sole remedy to elect either: (i) to
terminate this Contract, in which event the Deposit shall be
promptly returned to Purchaser, Purchaser shall return to Seller
all information and materials received by Purchaser from Seller
pertaining to the Property, and thereafter the parties shall have
no further rights or obligations under this Contract except as
otherwise provided in Section 12(c) below; or (ii) to waive
any objections to the Master Covenants and proceed with the
transactions contemplated by this Contract, in which event
Purchaser shall be deemed to have approved the Master Covenants as
to which its objections have been waived. If Purchaser fails to
provide written notice to Seller of its objection to the Master
Covenants within ten (10) days of receipt of the draft Master
Covenants as required by this Section 4(d), Purchaser shall be deemed
to have elected to waive its objections as described in the
preceding clause and the Master Covenants shall be deemed to be
Permitted Exceptions. Seller shall be permitted to revise the
Master Covenants at any time before the initial Closing under this
Contract without the consent of Purchaser, provided that any such
revisions have no material adverse effect on the Lots acquired or
to be acquired by Purchaser, the Purchaser’s approved product
or the Purchaser’s cost to construct such approved product on
such Lots, and Seller will give Purchaser notice at least five (5)
business days prior to the First Closing of any revisions to the
Master Covenants.
(e) Title Policy. Within a
reasonable time after each Closing, Seller, at its expense, shall
cause the Title Company to deliver a Title Policy, insuring
Purchaser’s title to the Property conveyed at such Closing,
pursuant to the applicable Takedown Commitment and subject only to
the Permitted Exceptions, and shall pay the premium for the basic
policy at such Closing. The Title Policy shall provide insurance in
an amount equal to the Purchase Price for all Lots purchased at
such Closing. Each Title Policy shall include extended coverage
subject to the provisions of Section 4(a) hereof. At each Closing,
Seller shall offer to execute and deliver a Lien Affidavit and
Title Company Indemnity, and shall obtain and furnish a plat
certification issued by a licensed surveyor, as provided in
Section
4(a) above. Purchaser shall pay
any fees charged by the Title Company to delete the standard
pre-printed exceptions. Purchaser shall pay for the premiums for
any endorsements requested by Purchaser, except that Seller shall
pay for any endorsements that Seller agrees to provide in order to
cure a Title Objection.
(a) Entitlements.
(i) Existing
Entitlements. The County previously approved the following
entitlements for the Property (collectively, the
“Existing
Entitlement Documents”): a Preliminary Plat and a
Preliminary Development Plan. Seller shall provide a copy of the
Existing Entitlement Documents to Purchaser as part of the Seller
Documents.
(ii) Platting
and Entitlements. Seller shall be responsible, at Seller's
sole cost and expense, for preparing and processing in a
commercially reasonable manner and timeframe, and diligently
pursuing and obtaining Final Approval (as defined below) from the
County and any other appropriate Authority and recording in the
records of the Clerk and Recorder of the County (the "County
Records"), as may be required, the following for each
respective Takedown: (i) a specific development plan that includes
the Property (“SDP”);
(ii) an administrative site plan (“ASP”)
and final subdivision plat or plats for each Filing within the
Property (each a "Final
Plat"); (iii) the public improvement construction plans
relating to such Final Plat ("CDs"); and
(iv) the development or subdivision improvement agreement
associated with such Final Plat and other similar documentation
required by the Authorities in connection with approval of such
Final Plat (collectively, such documents are referred to, with
respect to each Takedown, as the "Final Subdivision
Documents" and together with the Existing Entitlement
Documents, collectively, the "Entitlements"
for such Takedown). The Final Subdivision Documents shall
substantially comply with the Preliminary Development Plan and the
Lotting Diagram, shall provide that each of the SFD 45’ Lots
are approximately 45 feet wide by approximately 110 feet deep, and
the SFD 50’ Lots are approximately 50 feet wide by
approximately 110 feet deep, with a building envelope on SFD
45’ Lots that is not less than 35’ wide and not less
than 40’ wide on SFD 50’ Lots (after taking into
consideration applicable setbacks), and the Final Subdivision
Documents shall not impose new or additional requirements upon
Buyer the cost of which is expected to exceed $3,000 for any Lot.
Seller shall use commercially reasonable efforts to have the
Entitlements for each Takedown, respectively, approved by the
Authorities and recorded as necessary in the County Records with
applicable governmental or third-party appeal or challenge periods
applicable to an approval decision of the Board of Commissioners or
Planning Commission having expired without any appeal then-pending
(“Final
Approval”). Once Seller obtains Final Approval of an
SPD and other Entitlements for a Takedown, Seller shall maintain
same in full force and effect for the term of this Contract and
provide to all applicable Authorities any subdivision improvement
guarantees or similar financial assurances required with respect to
such Entitlements. If Final Approval of the Entitlements applicable
to the Takedown 1 Lots has not been achieved as aforesaid on or
before nine (9) months after the Effective Date, then Seller, in
its discretion, shall have the right to extend the date for
obtaining such Final Approval for a period not to exceed six (6)
months after the initial nine (9) month period by providing written
notice to Purchaser prior to the expiration of such nine (9) month
period. If Seller shall not secure such Final Approval of the
Takedown 1 Lots by the expiration of the initial nine (9) month
period and shall fail to exercise such extension, each party shall
thereupon be relieved of all further obligations and liabilities
under this Contract, except as otherwise provided herein, and the
Deposit shall be returned to Purchaser. If Seller extends the time
period for obtaining Final Approval of the Takedown 1 Lots, then
during such extended time period Seller shall use commercially
reasonable efforts to obtain Final Approval of such Entitlements,
and failing which, Seller shall not be in default of its
obligations under this Contract (unless Seller failed to use
commercially reasonable efforts to obtain Final Approval of such
Entitlements), but this Contract shall terminate in which case each
party shall thereupon be relieved of all further obligations and
liabilities under this Contract, except as otherwise provided
herein, and the Deposit shall be returned to Purchaser. The timing
for Final Approval of the Entitlements for Takedowns after Takedown
1 is as set forth in Section 6(b)(i) hereof. During the approval
process, Seller shall keep Purchaser reasonably informed of the
process and the anticipated results therefrom and provide Purchaser
with reasonable documentation relating to same. Purchaser, at no
material cost to Purchaser (other than costs incurred to obtain
services that could reasonably be performed or provided in-house),
shall cooperate with Seller in Seller’s efforts to obtain
Final Approval of the Entitlements by the County.
(ii) Lot
Minimums for each Takedown. The Final Plat(s) for the
Property and the Lots are anticipated to be in a form which is
substantially consistent, with respect to the number of Lots, with
the Lotting Diagram, subject to changes made necessary by the
Authorities and/or final engineering decisions which are necessary
to properly engineer, design, and install the improvements in
accordance with the requirements of the County and other applicable
Authorities.
(i) Seller shall cause
to be Substantially Completed (as hereinafter defined) prior to
each applicable Closing the Finished Lot Improvements (as defined
in Exhibit C),
with the exception of Punch-List Items (hereafter defined), for the
Lots being purchased and acquired by Purchaser at each Closing.
Notwithstanding the foregoing and the agreement that Seller only
need to Substantially Complete the Finished Lot Improvements prior
to each applicable Closing, all of the Finished Lot Improvements
remain Seller’s responsibility and same are to be completed
by Seller in accordance with applicable laws, codes, regulations
and governmental requirements for the Property. Seller will notify
Purchaser when the Finished Lot Improvements have been
Substantially Completed. Seller shall give Purchaser ten (10)
business days written notice (“Completion
Notice”) when Seller believes that it has
Substantially Completed the Finished Lot Improvements for the Lots
to be acquired at a Takedown, and the parties shall then conduct a
walk-through inspection of the applicable Lots to confirm whether
or not the Finished Lot Improvements are Substantially Complete and
can be used for their intended purpose, and prepare a punch-list of
any non-material items that have not been Substantially Completed
and the effect of which the County will not withhold building
permits for the Lots to be acquired at such Closing due to failure
of the same to have been completed (the “Punch-List
Items”). Seller shall use good faith efforts to
complete any unfinished Punch-List Items before the scheduled
Closing. Notwithstanding the foregoing or anything to the contrary
set forth herein, Seller may elect to Substantially Complete such
unfinished Punch-List Items within ninety (90) days after the
scheduled Closing. Seller’s obligation to Substantially
Complete any Punch-List Items (as well as Seller’s obligation
to complete all Finished lot Improvements), shall survive the
Closings. After obtaining Final Approval of all necessary
Entitlements for the applicable Lots, Seller agrees to commence and
diligently pursue Substantial Completion of the Finished Lot
Improvements, subject to Force Majeure, and so long as Purchaser
does not otherwise default under this Contract beyond the any
applicable cure periods set forth in this Contract. Notwithstanding
anything to the contrary including any Punch-List Items, if an
Authority grants preliminary approval or construction acceptance to
any of the Finished Lot Improvements, or if the engineer issues a
certification with respect to the grading, fill and compaction in
accordance with item (g) of Exhibit C,
then for the purposes of the walk-through inspection and
preparation of the Punch List Items, the Finished Lot Improvements
for which an Authority grants preliminary approval or construction
acceptance or for which the engineer issues a certification with
respect to the grading, fill and compaction in accordance with item
(g) of Exhibit C
will be presumed to have been Substantially Completed in accordance
with applicable laws, codes, regulations and governmental
requirements for the Property, subject to completion of any punch
list provided by the approving Authority and both the Governmental
Warranty and Non-Government Warranty as described in Section 6 of
Exhibit
C.
(ii) Definition of
Substantial Completion. “Substantial Completion” or
“Substantially
Completed” or “Substantially Complete” with
respect to the Finished Lot Improvements (or applicable component
thereof) shall mean and be deemed to have occurred when all of the
following have occurred with respect to the Finished Lot
Improvements (or applicable component thereof):
(1) Seller has
completed or corrected all punchlist items provided by the
Authorities such that same have been accepted and approved by the
Authorities and the Punch-List Items prepared by the Parties
affecting the Finished Lot Improvements (or applicable component
thereof) to the extent required so that Purchaser is not precluded
from obtaining from the Authorities building permits for houses
constructed, or to be constructed, on any Lots solely as a result
of items (or applicable component thereof) on either punchlist not
being complete;
(iii) The Finished Lot
Improvements (or applicable component thereof) have been installed
pursuant and in accordance with the CDs and the applicable
requirements of the Authorities to the extent required so that
Purchaser is not precluded from obtaining from the Authorities
building permits for houses constructed, or to be constructed, on
any Lots solely as a result of such Improvements (or applicable
component thereof) not being complete;
(iv) Any Finished Lot
Improvements (or applicable component thereof) that are intended to
be dedicated to or accepted by an Approving Authority shall have
been inspected and preliminarily accepted by the applicable
Authority (subject to the Government Warranty Period (as defined
below)); except that those Finished Lot Improvements that are (x)
to be phased, if any, as set forth in the Entitlements, or (y) not
necessary or required by the Authority to occur prior to issuance
of a building permit or certificate of occupancy for Homes on the
Lots, consisting of (i) certain landscape, irrigation and park
improvements (ii) installation of monuments, site signage, street
lighting, common area fencing, mailboxes and other site amenities,
if any; (iii) dry utilities (gas, electric, telephone and cable
television services) as described in Exhibit C; (iv) a final lift
of asphalt on streets; (v) installation of common area improvements
and subsequent dedications of such improvements, for example,
trails, open space improvements and related landscape, which will
be completed when required by the County; (vi) any other
infrastructure improvements required by the Entitlements that are
required for the issuance of certificates of occupancy for
residences, but not building permits, on the Lots (collectively,
the “Additional
Improvements”), will not be required to achieve
Substantial Completion, but Seller shall nevertheless be required
to complete construction and obtain acceptance of such Additional
Improvements by the applicable Authority after Substantial
Completion at such time as is required by the applicable
Authorities and so that Purchaser is not precluded from obtaining
from the Authorities building permits or certificate of occupancy
for houses constructed, or to be constructed, on any Lots solely as
a result of such Additional Improvements (or applicable component
thereof) not being complete.
(v) No mechanics’
or materialmen’s liens shall have then been filed against any
of the Lots with respect to the Finished Lot Improvements and lien
waivers have been obtained from the contractors that constructed
the Finished Lot Improvements (or applicable portion thereof), or
the Seller has obtained a bond to insure over any such
mechanics’ or materialmen’s liens.
(vi) With respect to any
Improvements that are required by the CD’s or other
Entitlements and the applicable requirements of the Authorities or
that are required by the subdivision improvement agreement
applicable to the Lots but which are not addressed as part of or
included in the definition of the Finished Lot Improvements, and
any other improvements which are not required for the issuance of
building permits but which are required by the Authorities so that
homes and other improvements constructed by Purchaser on the Lots
are eligible for the issuance of certificates of occupancy for
homes, the Seller shall complete or cause the completion of such
other improvements, to the extent required by the Authorities, so
as not to delay the issuance of certificates of occupancy for homes
constructed by Purchaser on the Lots.
(vii) The Alternative
Service (as defined in Exhibit C) has been completed as necessary
to service the Lots being purchased subject to the provisions of
Exhibit C.
(a) Seller’s Conditions.
Seller’s obligations to close the First Closing is contingent
upon satisfaction of the following condition ("Seller's Condition
Precedent"), which shall be in accordance with
Seller’s requirements to be pursued by Seller in good faith
using commercially reasonable efforts:
(i) That Purchaser and
other homebuilders are under contract to purchase at least 200 of
the residential lots in the Development. If for any
reason, other than
Seller’s fault or exercise of its discretion, this Seller's
Condition Precedent is not satisfied on or before the date required
for Final Approval of the Entitlements under Section 5(a), Seller
may terminate this Contract (in which event the Deposit shall be
returned to Purchaser), or elect, by written notice to Purchaser at
least ten (10) days after the date required for Final Approval of
the Entitlements under Section 5(a), to waive the condition and
proceed to the First Closing, or elect to extend the applicable
deadline for a period of time not to exceed 90 days by giving
written notice to Purchaser on or before the respective deadline
set forth above, during which ▇▇▇▇ ▇▇▇▇▇▇ shall use commercially
reasonably efforts to cause such condition to be
satisfied.
(b) Purchaser’s Conditions.
It shall be a condition precedent to Purchaser’s obligation
to close each Takedown, that the following conditions have been
satisfied:
(i) Final
Approval of the Entitlements for each respective Takedown by the
County and all other applicable Authorities and recordation of such
Entitlements in the County Records as may be required by the County
on or before a date which is sufficient to allow Seller to satisfy
Purchaser’s condition precedent in Section 6(b)(ii) below,
and such Entitlements remain in force and effect on the applicable
Closing Date;
(ii) Substantial
Completion of the Finished Lot Improvements for the applicable
Takedown on or before the applicable Finished Lot Improvement
Deadline (as hereinafter defined);
(iii) Seller’s
representations and warranties set forth herein shall be materially
true and correct as of each Closing;
(iv) The
Title Company shall be committed to issue to Purchaser, as soon as
reasonably possible following each Closing Date, the applicable
Title Policy, subject only to the Permitted Exceptions accepted by
Purchaser in accordance with the provisions of this
Contract.
(v) There
shall have been no material adverse change to the
Property.
(vi)
Seller has obtained and delivered to Purchaser and Title Company a
Plat Certification for the Final Plat.
(vii)
If Purchaser delivered its proposed House Plans (hereafter defined)
to Seller, receipt of written approval of same from Seller as
provided in Section 12(d)(i) of this Contract.
(viii)
The parties shall have agreed upon the form of Homebuyer
Disclosure.
If the
foregoing Purchaser’s conditions precedent are not satisfied
on or before each respective Closing Date, Purchaser may as its
sole remedy hereunder terminate this Contract as to such Takedown
and any remaining Takedowns by written notice to Seller, delivered
on or before the applicable Closing Date, in which case each party
shall thereupon be relieved of all further obligations and
liabilities under this Contract, except as otherwise provided
herein, and the Deposit shall be returned to Purchaser, but if the
failure of Purchaser’s conditions precedent are as a result
of Seller’s default hereunder, Purchaser also shall have the
rights and remedies of Section 27(b). Failure to give notice as
described above shall be an irrevocable waiver of Purchaser’s
right to terminate this Contract as to the affected Takedown
pursuant to this Section 6(b). A Seller notice to extend
given to Purchaser pursuant to Section 6(a) above has precedence
and controls over any termination notice given by Purchaser to
Seller pursuant to this Section 6(b).
7. Closing. "Closing"
shall mean the delivery to the Title Company of all applicable
documents and funds required to be delivered pursuant to
Section
8 hereof,
unconditional authorization of the Title Company to disburse,
deliver and record the same, and recording of the deed conveying
the Lots to Purchaser. The purchase of Lots at the closing of a
Takedown shall be deemed to be "Closed" when
the documents and funds required to be delivered pursuant to
Section
8 hereinafter have
been delivered to the Title Company, and the Title Company agrees
to unconditionally to disburse, deliver and record the same, and
the deed has been recorded.
(a) On each respective
Closing Date, Purchaser shall purchase the number of Lots that
Purchaser is obligated to acquire hereunder in the applicable
Takedown.
(b) Closing Dates. The date of the
First Closing of the purchase and sale of the Takedown 1 Lots shall
be the date that is five (5) business days after the parties have
completed the list identifying the Punch-List Items have been
determined pursuant to Section 5(B), all of which is to occur after
Seller provided Purchaser with the Completion Notice, Plat
Certification and Takedown Commitment for the Takedown 1 Lots. If
substantial completion of the Finished Lot Improvements with
issuance of the Completion Notice for the Takedown 1 Lots has not
been achieved by the date that is twelve (12) months after the date
that the Continuation Notice is delivered to Seller for the
Takedown 1 Lots (the “Takedown 1 Finished
Lot Improvement Deadline”), then the Closing Date of
the First Closing may be extended by Seller up to four (4) months
after the Takedown 1 Finished Lot Improvement Deadline by written
notice from Seller to Purchaser issued prior to the initial
Takedown 1 Finished Lot Improvement Deadline. Such date of Closing
is herein referred to as the "Takedown 1 Closing
Date." The date of the Second Closing of the purchase and
sale of the Takedown 2 Lots (the "Takedown 2
Closing") shall be the date that is nine (9) months after
the date that the First Closing occurs or such other date as Seller
and Purchaser may mutually agree. Such date of Closing is herein
referred to as the "Takedown 2 Closing
Date." The date of the Third Closing of the purchase and
sale of the Takedown 3 Lots (the "Takedown 3
Closing") shall be the date that is six (6) months after the
date that the Second Closing occurs or such other date as Seller
and Purchaser may mutually agree. Such date of Closing is herein
referred to as the "Takedown 3 Closing
Date." The date of the Fourth Closing of the purchase and
sale of the Takedown 4 Lots (the "Takedown 4
Closing") shall be the date that is six (6) months after the
date that the Third Closing occurs or such other date as Seller and
Purchaser may mutually agree. Such date of Closing is herein
referred to the "Takedown 4 Closing
Date." The date of the Fifth Closing of the purchase and
sale of the Takedown 5 Lots (the "Takedown 5
Closing") shall be the date that is six (6) months after the
date that the Fourth Closing occurs or such other date as Seller
and Purchaser may mutually agree. Such date of Closing is herein
referred to the "Takedown 5 Closing
Date." The date of the Sixth Closing of the purchase and
sale of the Takedown 6 Lots (the "Takedown 6
Closing") shall be the date that is six (6) months after the
date that the Fifth Closing occurs or such other date as Seller and
Purchaser may mutually agree. Such date of Closing is herein
referred to the "Takedown 6 Closing
Date." The term "Closing
Date" may be used to refer to each of the Takedown 1 Closing
Date, the Takedown 2 Closing Date, the Takedown 3 Closing Date, the
Takedown 4 Closing Date, the Takedown 5 Closing Date and the
Takedown 6 Closing Date. If Purchaser desires to accelerate any of
the Closing Dates, Purchaser may request that a Closing Date be
accelerated, and if Seller is willing to do so in its sole and
absolute discretion, the parties will work together to prepare a
mutually acceptable amendment to this Contract to accommodate such
request. The Finished Lot Improvements for the Takedown 2 Lots, the
Takedown 3 Lots, the Takedown 4 Lots, the Takedown 5 Lots and the
Takedown 6 Lots shall be Substantially Complete on or before ten
(10) business days prior to the applicable Closing (such dates with
the Takedown 1 Finished Lot Improvements Deadline are referred to
as a “Finished Lot
Improvement Deadline”). The Takedown 2 Closing Date,
the Takedown 3 Closing Date, the Takedown 4 Closing Date, the
Takedown 5 Closing Date and the Takedown 6 Closing Date are each
subject to extension by Seller, inclusive of Force Majeure
extensions, of up to four (4) months in the same manner as provided
above for the Takedown 1 Closing Date. If requested by Purchaser
during the Due Diligence Period, Seller will consider adjusting the
foregoing schedule to align same with Purchaser’s proposed
phasing schedule, but any such adjustment shall be in
Seller’s and Purchaser’s sole discretion and, if made,
shall be made in writing by amendment to this
Contract.
(c) Closing Place and Time. Each
Closing shall be held at 11:00 a.m. on the applicable Closing Date
at the offices of the Title Company or at such other time and place
as Seller and Purchaser may mutually agree.
(d) Closing Procedures. Each
purchase and sale transaction shall be consummated in accordance
with the following procedures:
(i) All
documents to be recorded and funds to be delivered hereunder shall
be delivered to the Title Company to hold, deliver, record and
disburse in accordance with closing instructions approved by
Purchaser and Seller;
(ii) At
each Closing, Seller shall deliver or cause to be delivered in
accordance with the closing instructions the
following:
(1) A
special warranty deed conveying the applicable portion of the
Property to be acquired at such Closing to Purchaser. The special
warranty deed shall contain a reservation of easements, minerals,
mineral rights and water and water rights as set forth on
Exhibit B. The special
warranty deed shall also be subject to non-delinquent general real
property taxes for the year of such Closing and subsequent years,
District assessments and the Permitted Exceptions.
(2)
Payment (from the proceeds of such Closing or otherwise) sufficient
to satisfy any encumbrance relating to the portion of the Property
being acquired at such Closing, required to be paid by Seller at or
before the time of Closing.
(3) A
tax certificate or other evidence sufficient to enable the Title
Company to ensure the payment of all general real property taxes
and installments of District assessments then due and payable for
the portion of the Property being acquired at such
Closing.
(4) An
affidavit, in a form sufficient to comply with applicable laws,
stating that Seller is not a foreign person or a foreign
corporation subject to the Foreign Investment in Real Property Tax
Act, and therefore not subject to its withholding
requirements.
(5) A
certification or affidavit to comply with the reporting and
withholding requirements for sales of Colorado properties by
non-residents (Colorado Department of Revenue Form
DR-1083).
(6) A
Lien Affidavit and Title Company Indemnity.
(7) A
partial assignment of declarant rights or builder rights under the
Master Covenants, assigning declarant and/or builder rights, if
any, from Seller to Purchaser as necessary to enable Purchaser to
maintain sales offices, construction offices, management offices,
model homes and signs advertising the Development and/or Lots and
take other action as is customary for the construction, advertising
and sales of homes, and such other rights to which the parties may
mutually agree.
(8) The
Tap Purchase Agreement (as defined herein).
(9) A
general assignment to Purchaser in the form attached hereto as
Exhibit D ("General
Assignment") with respect to the applicable
Lots.
(10)
The Offsite Infrastructure Escrow Agreement (as defined in Exhibit
C) if not theretofore entered.
(11)
Such other documents as may be required to be executed by Seller
pursuant to this Contract or the closing instructions.
(iii) At
each Closing, Purchaser shall deliver or cause to be delivered in
accordance with the closing instructions the
following:
(1) The
Purchase Price payable at such Closing, computed in accordance with
Section
2 above, for the
Lots being acquired at such Closing, such payment to be made in
Good Funds.
(3) The
Tap Purchase Agreement.
(4) All
other documents required to be executed by Purchaser pursuant to
the terms of this Contract or the closing
instructions.
(5)
Payment of any amounts due pursuant to Section 16 hereof.
(6) The
Offsite Infrastructure Escrow Agreement (if Buyer desires to join
same via joinder).
(iv) At
each Closing, Purchaser and Seller shall each deliver an executed
settlement statement, which shall set forth all prorations,
disbursements of the Purchase Price and expenses applicable to such
Closing;
(vi) The
following adjustments and prorations shall be made between
Purchaser and Seller as of each Closing:
(1)
Real property taxes and installments of District assessments, if
any, for the applicable portion of the Property for the year in
which the Closing occurs shall be prorated based upon the most
recent known rates, mill levy and assessed valuations; and such
proration shall be final.
(2)
Seller shall pay real property taxes for years prior to the year in
which the Closing occurs.
(3)
Purchaser shall pay any and all recording costs and documentary
fees required for the recording of the deed.
(4)
Seller shall pay the base premium for the Title Policy and for any
endorsement Seller agrees to provide to cure a Title Objection, and
Purchaser shall pay the premium for any other endorsements
requested by Purchaser in accordance with Section 4 above, including an extended
coverage endorsement.
(5)
Each party shall pay one-half (1/2) of any closing or escrow
charges of the Title Company.
(6) All
other costs and expenses not specifically provided for in this
Contract shall be allocated between Purchaser and Seller in
accordance with the customary practice of commercial real estate
transactions in Arapahoe County, Colorado.
(vii) Possession
of the applicable portion of the Property being acquired at each
Closing shall be delivered to Purchaser at such Closing, subject to
the Permitted Exceptions.
9. Seller’s Delivery of
Title. At each Closing,
Seller shall convey title to the applicable portion of the
Property, subject to the following items, to the extent that they
have been approved, or are deemed to have been approved by
Purchaser pursuant to the terms of this Contract (collectively, the
"Permitted
Exceptions"):
(a) all easements,
agreements, covenants, restrictions, rights-of-way and other
matters of record approved or deemed approved by Purchaser in
accordance with Section 4 above (unless
otherwise identified herein as an obligation, fee or encumbrance to
be assumed by Purchaser or which otherwise survives such Closing,
the foregoing items, however, shall not include any mortgages,
deeds of trust, mechanic’s liens or judgment liens arising
by, through or under Seller, which monetary liens Seller shall
cause to be released (or with Buyer’s approval fully insured
over by the Title Company), to the extent they affect any portion
of the Property, on or prior to the date that such portion of the
Property is conveyed to Purchaser);
(b) the Entitlements,
including without limitation, the Final Plat applicable to the
Property being acquired at such Closing;
(c) the Master
Covenants;
(d) the inclusion of
the Property into the Sky Ranch Metropolitan District (the
"District")
and such other special districts as may be disclosed by the Master
Commitment;
(e) A Public
Improvement Fee Covenant substantially in the form provided by
Seller to Buyer by email on May 20, 2017 or as otherwise approved
by the parties prior to the expiration of the Due Diligence Period
with respect to construction and installation of eligible public
improvements on the Property, which imposes a public improvement
fee equal to a percentage (the “PIF
Percentage”) of all sales that occur on the Property
that is one percentage point less than the total sales tax imposed
on taxable sales occurring in that portion of the City of Aurora,
Colorado located within the boundaries of the County and the PIF
Percentage of the cost of building materials (the "Public Improvement
Fee" or "PIF"). The
PIF will be collected by (i) all sellers or providers of goods or
services who engage in any PIF sales transactions within those
portions of the Property subject to the PIF Covenant from the
purchaser or recipient of such goods or services and (ii) all
homebuilders and then will be paid over to the PIF collection
agent. The PIF collection agent will receive and remit the Public
Improvement Fee to the Seller or District. PIF sales shall not
include the sale of residential improvements or any goods incident
to the sale of residential improvements. It is expected the Public
Improvement Fee Covenant will provide and allow for Buyer to make a
single payment at the issuance of a building permit for each home
based on the construction valuation of the home.
(f) A reservation of
water and mineral rights as set forth on Exhibit B hereof;
(g) applicable zoning
and governmental regulations and ordinances;
(h) title exceptions,
encumbrances, or other matters created by, through or under
Purchaser or otherwise approved by Purchaser in
writing;
(i) items apparent upon
an inspection of the Property or shown or that would be shown on an
accurate and current survey of the Property as of the end of the
Due Diligence Period; and
(j) any Permissible New
Exception, any Other New Exception approved or deemed approved by
Purchaser, and any other document required or permitted to be
recorded against the Property in the County Records pursuant to the
terms of this Contract..
(a) Feasibility Review. Within five
(5) business days following the Effective Date, Seller shall
deliver or make available (at Seller’s office, via electronic
file share or other means) to Purchaser the following listed items
to the extent in Seller’s actual possession; if an item
listed below is not in Seller’s possession and not delivered
or made available to Purchaser but is otherwise readily available
to Seller, then Purchaser may make written request to Seller to
provide such item and Seller will use its reasonable efforts to
obtain and deliver or make such item available to Purchaser, but
Seller will have no obligation otherwise to obtain any item not in
Seller’s possession: (i) any environmental reports, soil
reports and certifications pertaining to the Lots, (ii) a copy of
any subdivision plat for the Property and the current version of
all Entitlements, (iii) engineering and construction plans
pertaining to the Lots, (iv) biological, grading, drainage,
hydrology and other engineering reports and plans and engineering
and constructions plans for offsite improvements that are required
to obtain building permits/certificates of occupancies for
single-family detached homes constructed on the Lots; (v) any PUD,
Development Agreement, Site Development Plans and other approvals
or pending Entitlement applications pertaining to the Lots
particularly and the Development generally; (vi) any Special
District Service Plans; (vii) any existing ALTA or other boundary
Survey of the Property; and (viii) copies of any subdivision bonds
or guarantees applicable to the Lots (collectively, the
"Seller
Documents"). In the event Seller received any update to the
Seller Documents, Seller shall deliver same promptly to Purchaser.
Purchaser shall have a period expiring sixty (60) calendar days
following the Effective Date of this Contract within which to
review the same (the "Due Diligence
Period"). During the Due Diligence Period, Purchaser shall
have an opportunity to review and inspect the Property, all Seller
Documents provided or made available to Purchaser and any and all
factors deemed relevant by Purchaser to its proposed development
and the feasibility of Purchaser’s intended uses of the
Property in Purchaser’s sole and absolute discretion (the
"Feasibility
Review"). The Feasibility Review shall be deemed to have
been completed to Purchaser’s satisfaction if Purchaser gives
written notice to Seller of its election to continue this Contract
("Continuation
Notice") prior to the expiration of the Due Diligence
Period. If Purchaser fails to timely give a Continuation Notice or
if Purchaser gives a notice of its election to terminate (which may
be given at any time prior to the end of the Due Diligence Period,
for any reason or no reason), the Deposit shall be promptly
returned to Purchaser, Purchaser shall deliver to Seller all
information and materials received by Purchaser from Seller
pertaining to the Property and any non-proprietary and
non-confidential information otherwise obtained by Purchaser and
thereafter the parties shall have no further rights or obligations
under this Contract except as otherwise provided in Section 24 below.
(b) Approval of Property. If
Purchaser gives a Continuation Notice on or before the expiration
of the Due Diligence Period, except as otherwise provided in this
Section 10, Purchaser shall be deemed
to have waived Feasibility Review and elected to continue this
Contract and proceed as provided hereunder.
(c) Radon. Purchaser acknowledges
that radon gas and naturally occurring radioactive materials
(“NORM”)
each naturally occurs in many locations in Colorado. The Colorado
Department of Public Health and Environment and the United States
Environmental Protection Agency (the "EPA") have
detected elevated levels of naturally occurring radon gas in
residential structures in many areas of Colorado, including the
County and all of the other counties along the front range of
Colorado. The EPA has raised concerns with respect to adverse
effects on human health from long-term exposure to high levels of
radon and recommends that radon levels be tested in all Residences.
Purchaser acknowledges that Seller neither claims nor possesses any
special expertise in the measurement or reduction of radon or NORM.
Purchaser further acknowledges that Seller has not undertaken any
evaluation of the presence or risks of radon or NORM with respect
to the Property nor has it made any representation or given any
other advice to Purchaser as to acceptable levels or possible
health hazards of radon and NORM. SELLER HAS MADE NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE
PRESENCE OR ABSENCE OF RADON, NORM OR OTHER ENVIRONMENTAL
POLLUTANTS WITHIN THE PROPERTY OR THE RESIDENCES TO BE CONSTRUCTED
ON THE LOTS OR THE SOILS BENEATH OR ADJACENT TO THE PROPERTY OR THE
RESIDENCES TO BE CONSTRUCTED ON THE LOTS PRIOR TO, ON OR AFTER THE
CLOSING DATE. Purchaser, on behalf of itself and its successors and
assigns, hereby releases the Seller from any and all liability and
claims with respect to radon gas. Every home sales contract entered
in to by Purchaser with respect to subsequent sales of Lots shall
include any disclosures with respect to radon as required by
applicable Colorado law.
(d) Soils. Purchaser acknowledges
that soils within the State of Colorado consist of both expansive
soils and low-density soils, and certain areas contain potential
heaving bedrock associated with expansive, steeply dipping bedrock,
which will adversely affect the integrity of a dwelling unit
constructed on a Lot if the dwelling unit and the Lot on which it
is constructed are not properly maintained. Expansive soils
contain clay mineral, which have the characteristic of changing
volume with the addition or subtraction of moisture, thereby
resulting in swelling and/or shrinking soils. The addition of
moisture to low-density soils causes a realignment of soil grains,
thereby resulting in consolidation and/or collapse of the soils.
Purchaser agrees that it shall obtain a current geotechnical
report for the Property and an individual lot soils report for each
Lot containing design recommendations from a licensed geotechnical
engineer for all structures to be placed upon the Lot. Purchaser
shall require all homes to have engineered footing and foundations
consistent with results of the individual lot soils report for each
Lot and shall take reasonable action as shall be necessary to
ensure that the homes to be constructed upon the Lots shall be done
in accordance with proper design and construction techniques.
Purchaser shall also provide a copy of the geotechnical report for
the Property and the individual lot soils report for each Lot to
Seller within seven (7) days after Seller’s request for the
same, and agrees in the event that this Contract terminates for any
reason Purchaser shall use reasonable efforts to assign, without
liability or recourse to Purchaser, at Seller’s request, the
geotechnical report for the Property and the individual lot soils
report for each Lot to any subsequent homebuilder who enters into a
purchase and sale agreement with Seller to purchase all of a
portion of the Lots. SELLER HAS MADE NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRESENCE OR ABSENCE
OF EXPANSIVE SOILS, LOW-DENSITY SOILS OR DIPPING BEDROCK UPON THE
PROPERTY AND PURCHASER SHALL UNDERTAKE SUCH INVESTIGATION AS SHALL
BE REASONABLE AND PRUDENT TO DETERMINE THE EXISTENCE OF THE SAME.
Purchaser shall provide all disclosures required by C.R.S. Section
6-6.5-101 in every home sales contract entered in to by Purchaser
with respect to subsequent sales of a Lot to a homebuyer.
Purchaser, on behalf of itself and its successors and assigns,
hereby releases the Seller from any and all liability and claims
with respect to expansive and low-density soils and dipping bedrock
located within the Property. Purchaser shall also indemnify, defend
and hold all Seller Parties harmless from and against any claims
asserted by all subsequent owners of the Lots relating to
geotechnical or soils conditions on the Lots; provided that
Purchaser is not required to indemnify consultants, contractors and
subcontractors who contract with Seller and who perform services or
supply labor, materials, equipment, and other work relating to
geotechnical or soils conditions on the Lots that is necessary for
the Lots to satisfy the requirements set forth herein.
(e) Over Excavation. The Finished
Lot Improvements required for each Lot do not include any
“over excavation” or comparable preparation or
mitigation of the soil (the “Overex”)
on the Property and Purchaser shall have sole responsibility at
Purchaser’s sole expense with respect to the Overex and shall
have the right (pursuant to a license agreement to be provided by
Seller) to enter such Lots for the purposes of performing the
Overex; provided, however, that such entry shall be performed in a
manner that does not materially interfere with or result in a
material delay or an increase in the costs or any expenses in the
construction of the Finish Lot Improvements, and provided further
that Purchaser shall promptly repair any portion of the Lots and
adjacent property that is materially damaged by Purchaser or its
agents, designees, employees, contractors, or subcontractors in
performing the Overex. Purchaser shall obtain, at its cost, a
current geotechnical report for the Property and an individual lot
soils report for each Lot containing design recommendations from a
licensed geotechnical engineer for all structures to be placed upon
the Lot (“Purchaser’s
Geotechnical Reports”) shall not rely upon any
geotechnical or soils report furnished by Seller, and Seller shall
have no responsibility or liability with respect to the Overex,
Purchaser’s Geotechnical Reports or any matters related
thereto. The parties shall reasonably cooperate in coordinating
Purchaser’s completion of the Overex so that the Overex can
be properly sequenced with Seller’s completion of the
Finished Lot Improvements. In no event shall the Seller be liable
to Purchaser for any delay or costs or damages incurred by
Purchaser with respect to such Overex, even if caused by any delay
in installation of Finished Lot Improvements sequenced ahead of the
Overex. THE PARTIES ACKNOWLEDGE AND AGREE THAT SELLER IS NOT
PERFORMING ANY OVER-EXCAVATION OF THE LOTS AND THAT SELLER SHALL
HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO OR ARISING OUT OF ANY
OVER-EXCAVATION OF THE LOTS OR EXPANSIVE SOILS PRESENT ON THE LOTS
AND SELLER EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT TO ANY
OVER-EXCAVATION OF THE LOTS AND EXPANSIVE SOILS PRESENT ON THE
LOTS.
(f) No Reliance on Documents.
Except for and subject to the representations, warranties,
covenants and agreements of Seller expressly stated in this
Contract and/or expressly set forth in the documents executed by
Seller at Closing (collectively, the “Seller’s
Express Representations”), Seller makes no
representation or warranty as to the truth, accuracy or
completeness of any materials, data or information (including,
without limitation, the Seller Documents) delivered by Seller or
its brokers or agents to Purchaser in connection with the
transaction contemplated hereby. Except for and subject to
Seller’s Express Representations, all materials, data and
information delivered by Seller to Purchaser in connection with the
transaction contemplated hereby are provided to Purchaser as a
convenience only and any reliance on or use of such materials, data
or information by Purchaser shall be at the sole risk of Purchaser,
except as otherwise expressly stated herein. Except for and subject
to Seller’s Express Representations, the Seller Parties shall
not be liable to Purchaser for any inaccuracy in or omission from
any such reports. Purchaser hereby represents to Seller that, to
the extent Purchaser deems the same to be necessary or advisable
for its purposes, and without waiving the right to rely upon the
Seller’s Express Representations: (i) Purchaser has performed
or will perform an independent inspection and investigation of the
Lots and has also investigated or will investigate the operative or
proposed governmental laws, ordinances and regulations to which the
Lots may be subject, and (ii) Purchaser shall acquire the Lots
solely upon the basis of its own or its experts' independent
inspection and investigation, including, without limitation, (a)
the quality, nature, habitability, merchantability, use, operation,
value, fitness for a particular purpose, marketability, adequacy or
physical condition of the Lots or any aspect or portion thereof,
including, without limitation, appurtenances, access, landscaping,
parking facilities, electrical, plumbing, sewage, and utility
systems, facilities and appliances, soils, geology and groundwater,
(b) the dimensions or sizes of the Lots, (c) the development or
income potential, or rights of or relating to, the Lots, (d) the
zoning or other legal status of the Lots or any other public or
private restrictions on the use of the Lots, (e) the compliance of
the Lots with any and all applicable codes, laws, regulations,
statutes, ordinances, covenants, conditions and restrictions, (f)
the ability of Purchaser to obtain any necessary governmental
permits for Purchaser's intended use or development of the Lots,
(g) the presence or absence of Hazardous Materials on, in, under,
above or about the Lots or any adjoining or neighboring property,
(h) the condition of title to the Lots, or (i) the economics of, or
the income and expenses, revenue or expense projections or other
financial matters, relating to the Lots, except as provided in any
express representations/warranties and/or covenants contained in
this Contract.
(g) As Is. Except for and subject
to Seller’s Express Representations, Purchaser acknowledges
and agrees that it is purchasing the Property based on its own
inspection and examination thereof, and Seller shall sell and
convey to Purchaser and Purchaser shall accept the property on an
“AS IS, WHERE IS, WITH ALL FAULTS, LIABILITIES, AND DEFECTS,
LATENT OR OTHERWISE, KNOWN OR UNKNOWN” basis in an "AS IS"
physical condition and in an "AS IS" state of repair (subject in
all events to Seller’s Express Representations including but
not limited to the Finished Lot Improvements obligation set forth
in Section
5(b) hereof).
Except for and subject to Seller’s Express Representations,
to the extent not prohibited by law the Purchaser hereby waives,
and Seller disclaims all warranties of any type or kind whatsoever
with respect to the Property, whether express or implied, direct or
indirect, oral or written, including, by way of description, but
not limitation, those of habitability, fitness for a particular
purpose, and use. Without limiting the generality of the foregoing,
Purchaser expressly acknowledges that, except for and subject to
Seller’s Express Representations, Seller makes no other or
additional representations or warranties concerning, and hereby
expressly disclaims any representations or warranties concerning
the following: (i) The value, nature, quality or condition of the
Property; (ii) Any restrictions related to development of the
Property; (iii) The applicability of any governmental requirements;
(iv) The suitability of the Property for any purpose whatsoever;
(v) The presence in, on, under or about the Property of any
Hazardous Material or any other condition of the Property which is
actionable under any Environmental Law (as such terms are defined
in this Section 10); (vi) Compliance of the
Property or any operation thereon with the laws, rules, regulations
or ordinances of any applicable governmental body; or (vii) The
presence or absence of, or the potential adverse health, economic
or other effects arising from, any magnetic, electrical or
electromagnetic fields or other conditions caused by or emanating
from any power lines, telephone lines, cables or other facilities,
or any related devices or appurtenances, upon or in the vicinity of
the Property.
As used
herein, "Hazardous
Materials" shall mean, collectively, any chemical, material,
substance or waste which is or hereafter becomes defined or
included in the definitions of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic
pollutants," "pollutant" or "contaminant," or words of similar
import, under any Environmental Law, and any other chemical,
material, substance, or waste, exposure to, disposal of, or the
release of which is now or hereafter prohibited, limited or
regulated by any governmental or regulatory authority or otherwise
poses an unacceptable risk to human health or the
environment.
As used
herein, "Environmental
Laws" shall mean all applicable local, state and federal
environmental rules, regulations, statutes, laws and orders, as
amended from time to time, including, but not limited to, all such
rules, regulations, statutes, laws and orders regarding the
storage, use and disposal of Hazardous Materials and regarding
releases or threatened releases of Hazardous Materials to the
environment.
(h) Release. Purchaser agrees that,
except for and subject to Seller’s Express Representations,
Seller shall not be responsible or liable to Purchaser for any
defects, errors or omissions, or on account of geotechnical or
soils conditions or on account of any other conditions affecting
the Property, because Purchaser otherwise is purchasing the
Property AS IS, WHERE-IS, and WITH ALL FAULTS as set forth above in
subsection (g). Purchaser, or anyone claiming by, through or under
Purchaser, hereby fully releases Seller, Seller’s affiliates,
divisions and subsidiaries and their respective managers, members,
partners, officers, directors, shareholders, affiliates,
representatives, employees, consultants and agents (the
“Seller
Parties” and each as a “Seller
Party”) from, and irrevocably waives its right to
maintain, any and all claims and causes of action that it or they
may now have or hereafter acquire against the Seller Parties for
any cost, loss, liability, damage, expense, demand, action or cause
of action arising from or related to any defects, errors,
omissions, soils conditions or other conditions affecting the
Property of the suitability or fitness of the Property, except to
the extent that such loss or other liability derives or results
from a breach or default of any of Seller’s Express
Representations. Purchaser waives any Environmental Claim (as
defined in this Section) which it now has or in the future may have
against Seller, provided however, such waiver shall not apply to
activities to be performed by the Seller hereunder to construct the
Finished Lot Improvements. The foregoing release and waiver shall
be given full force and effect according to each of its express
terms and provisions, including, but not limited to, those relating
to unknown and suspected claims, damages and causes of action. As
used herein, "Environmental
Claim" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives,
claims, liens, investigations, proceedings or notices of
noncompliance or violation, whether written or oral, by any person,
organization or agency alleging potential liability, including
without limitation, potential liability for enforcement,
investigatory costs, cleanup costs, governmental response costs,
removal costs, remedial costs, natural resources damages, property
damages, including diminution of the market value of the Property
or any part thereof, personal injuries or penalties arising out of,
based on or resulting from the presence or release into the
environment of any Hazardous Materials or resulting from
circumstances forming the basis of any violation or alleged
violation of any Environmental Laws based Hazardous Materials, and
any and all claims by any person, organization or agency seeking
damages, contribution, indemnification, costs, recovery,
compensation or injunctive relief relating to same.
(i) Indemnification. Purchaser
shall indemnify, defend (with counsel reasonably selected by
Purchaser with Seller approval) and hold harmless the Seller
Parties of, from and against any and all claims, demands,
liabilities, losses, expenses, damages, costs and reasonable
attorneys’ fees that any of the Seller Parties may at any
time incur by reason of or arising out of: (i) any work performed
in connection with or arising out of Purchaser’s activities,
or Purchaser’s acts or omissions with respect to any Overex
work, (ii) Purchaser’s failure to perform its work on the
Property in accordance with applicable laws, and (iii) either
personal injuries or property damage occurring after the Closing by
reason of or arising out of the geologic, soils or groundwater
conditions on the Property acquired by Purchaser, (iv)
Purchaser’s or its successor’s development,
construction, use, ownership, management, marketing or sale
activities associated with the Lots (including, without limitation,
land development, grading, excavation, trenching, soils compaction
and construction on the Lots performed by or on behalf of Purchaser
(including, but not limited to, by all subcontractors and
consultants engaged by Purchaser); (v) the soils, subsurface
geologic, groundwater conditions or the movement of any home
constructed on the Lots after a Closing; (vi) the design,
engineering, structural integrity or construction of any homes
constructed by Purchaser on the Lots after a Closing; or (vii) any
claim asserted by Purchaser’s homebuyers or their successors
in interest alleging construction defects related to any Overex
work performed by Purchaser, or any soils, subsurface geologic or
groundwater conditions affecting the Lots. The foregoing indemnity
obligation of Purchaser includes acts and omissions of Purchaser
and all agents, consultants and other parties acting for or on
behalf of Purchaser (“Purchaser
Parties”). Notwithstanding the foregoing, Purchaser is
not required by this indemnification provision to indemnify the
Seller against (i) Seller's failure to perform its obligations
under this Contract or under any of the Closing documents, (ii)
Seller's breach of Seller’s Express Representation, or (iii)
claims arising directly from the decisions of Seller acting in its
capacity as declarant under the Declaration; and further provided
that Purchaser is not required to indemnify consultants,
contractors and subcontractors who contract with Seller and who
perform services or supply labor, materials, equipment, and other
work relating to geotechnical or soils conditions on the Lots that
is necessary for the Lots to satisfy the requirements set forth
herein.
(j) The
provisions of this Section 10 shall survive each Closing
and the delivery of each respective deed to the
Purchaser.
11. Seller’s
Representations. Seller hereby
represents and warrants to Purchaser as follows (the following
Subsections collectively referred to herein as "Seller’s
Representations"):
(a) Litigation. To Seller’s
Actual Knowledge (as defined in this Section 11), there is no
threatened or pending litigation affecting or pertaining to the
Property or the Development.
(b) Non-Foreign Person. Seller is
not a "foreign person" as that term is defined in Section 1445
of the Internal Revenue Code of 1986, as amended, and applicable
regulations.
(c) Condemnation. Seller has
received no written notice of any pending or threatened
condemnation or eminent domain proceedings which may affect the
Property or the Development or any part thereof.
(d) Execution and Delivery. The
execution, delivery and performance of this Contract by Seller does
not and will not result in a breach of, or constitute a default
under, any indenture, loan or credit agreement, mortgage, deed of
trust or other agreement to which Seller is a party.
(e) Default. To Seller’s
Actual Knowledge, Seller has not defaulted under any covenant,
restriction or contract affecting the Property or the Development,
nor has Seller caused by its act or omission an event to occur
which would with the passage of time constitute a breach or default
under such covenant, restriction or contract.
(f) Violation of Law. Seller has
not received any written notice of non-compliance, and to
Seller’s Actual Knowledge there is no non-compliance, of the
Property or the Development with respect to any federal, state or
local laws, codes, ordinances or regulations relating to the
Property or the Development.
(g) Rights. Seller has not granted
to any party, other than Purchaser hereunder, any option, contract,
right of refusal or other agreement with respect to a purchase or
sale of the Property.
(h) Environmental. Neither Seller
nor, to Seller's Actual Knowledge, any third party, has used,
generated, transported, discharged, released, manufactured, stored
or disposed of any Hazardous Materials from, into, at, on, under or
about the Property in any manner which violates federal, state, or
local laws, ordinances, rules, regulations, or policies governing
the use, storage, treatment, transportation, manufacture,
refinement, handling, production, or disposal of Hazardous
Material. To Seller's Actual Knowledge: (a) the Property is not
now, nor was it previously, in violation, and is not currently
under investigation for violation of any Environmental Law; (b)
there has been no migration of any Hazardous Materials from, into,
at, on, under or about the Property; and (c) there is not now, nor
was there previously, on or in the Property underground storage
tanks or surface below-grade impoundments used to store, treat or
handle Hazardous Materials or debris or refuse buried in, on or
under the Property.
(i) Debt. As of the Effective Date,
Seller owns the Property free and clear of any mortgages or deeds
of trust. If Seller encumbers the Property, or portion thereof,
with a mortgage or deed of trust before a Closing, the Lots to be
acquired at such Closing will be released from such encumbrance at
such Closing. Seller will use commercially reasonably efforts to
obtain a recognition agreement from the lender holding any such
mortgage or deed of trust, but makes no representation or other
covenant that such lender will agree to the terms of or execute a
recognition agreement.
(j) Development
Ownership. To Seller’s Actual Knowledge, as of the
Effective Date Seller owns, has or will acquire rights in all real
property as necessary or as will be necessary to be able comply
with the Entitlements.
(k) Seller Documents. To
Seller’s Actual Knowledge, the Seller Documents provided and
to be provided by Seller to Purchaser are and will be true, correct
and complete copies of same.
(l) FASB. The fair market value of
the Property does not exceed fifty percent (50%) of the fair market
value of the total assets of Seller.
For
purposes of the foregoing, the phrase "Seller’s
Actual Knowledge" shall mean the current, actual, personal
knowledge of ▇▇▇▇ ▇▇▇▇▇▇▇ as President of Seller, without any duty
of investigation or inquiry and without imputation of any other
person’s knowledge. The fact that reference is made to the
personal knowledge of the above identified individual shall not
render such individual personally liable for any breach of any of
the foregoing representations and warranties; rather,
Purchaser’s sole recourse in the event of any such breach
shall be against Seller, and Purchaser hereby waives any claim or
cause of action against the above identified individuals arising
from Seller’s Representations. In the event that any
information contained in the Seller Documents conflicts with
Seller’s Representations set forth in this Section, the
Seller Documents shall govern and control and such inconsistency
shall not constitute a breach by Seller of its Seller’s
Representations herein. Seller and Purchaser shall notify the other
in writing immediately if any Seller’s Representation become
untrue or misleading in light of information obtained by Seller or
Purchaser after the Effective Date. In the event that Purchaser has
actual knowledge that any of Seller’s Representations are
untrue or misleading, or of a breach of any of Seller’
Representations prior to the Closing, without the duty of further
inquiry, and Purchaser elects to close, Purchaser shall be deemed
to have waived any right of recovery, and Seller shall not have any
liability in connection therewith.
Seller’s
Representations shall be deemed to be made again as and at the date
of each Closing, and shall survive each respective Closing for a
period of twelve (12) months, except to the extent of any matter
that is known by Purchaser, or is contained in materials provided
to or made available to Purchaser that makes Seller’s
Representations untrue as of such Closing Date and in any such
instance Seller’s Representations shall not survive
Closing.
Seller
makes no promises, representations or warranties regarding the
construction, installation or operation of any amenities within the
Development, including without limitation, club houses, swimming
pools and sports courts. To the extent that any development plans,
site plans, rendering, drawings, marketing information or other
materials related to the Development include, depict or imply the
inclusion of any amenities in the Development, they are included
only to illustrate possible amenities for the Development that may
or may not be built and Purchaser shall not rely upon any such
materials regarding the construction, installation or operation of
any amenities within the Development. Nothing herein shall relieve
Seller of the obligation to construct such amenities that are
ultimately required by the Entitlements.
12. Purchaser’s
Obligations. Purchaser shall
have the following obligations, each of which shall survive each
respective Closing and, where noted, termination of this Contract.
Notwithstanding any contrary provision set forth in this Contract,
Seller shall have the right to enforce said obligations by means of
any legal or equitable proceedings including, but not limited to,
suit for actual damages and equitable relief:
(a) Master Covenants. Purchaser
shall comply with all obligations applicable to Purchaser under the
Master Covenants.
(b) Compliance with Laws. Purchaser
shall comply with and abide by all laws, ordinances, statutes,
covenants, rules and regulations, building codes, permits,
association documents and other recorded instruments (as they are
from time to time amended, supplemented or changed) which regulate
any activities relating to the use, ownership, construction or sale
of any Lot or any improvements thereon.
(c) Entry Prior to Closing. From
and after the Effective Date of this Contract until the Closing
Date or earlier termination of this Contract, and so long as no
default by Purchaser exists under this Contract, Purchaser and its
agents, employees and representatives shall be entitled to enter
upon the Property for purposes of conducting soil and other
engineering tests and to inspect and survey any of the Property. If
the Property is altered or disturbed in any manner in connection
with any of Purchaser’s activities, Purchaser shall
immediately return the Property to substantially the condition
existing prior to such activities. Purchaser shall promptly refill
holes dug and otherwise to repair any damage to the Property as a
result of its activities. Purchaser and its agents shall not have
the right to conduct any invasive testing (e.g., borings, drilling,
soil/water sampling, etc.), except standard geotech preliminary
investigation, on the Lots (which may include borings, drilling,
and sampling), including, without limitation, any so-called "Phase
II" environmental testing, without first obtaining Seller's written
consent (and providing Seller at least seventy-two (72) hours'
prior written notice), which consent may be withheld by Seller in
its reasonable discretion and shall be subject to any terms and
conditions imposed by Seller in its reasonable discretion. In the
event that Purchaser fails to obtain Seller's written consent prior
to any invasive testing, in addition to and without limiting any
other obligations Purchaser may have under this Section, Purchaser
shall be fully responsible and liable for all costs of remediation
with respect to any materials disturbed in any manner that requires
remediation or that are removed in connection with such invasive
testing and including, but not limited to, costs for disposal of
materials removed during any invasive testing. Purchaser shall not
permit any lien to attach to the Property or any portion of the
Property as a result of the activities. Purchaser shall indemnify,
defend and hold Seller, its officers, directors, shareholders,
employees, agents and representatives harmless from and against any
and all mechanics’ and materialmen’s liens, claims
(including, without limitation, personal injury, death and property
damage claims), damages, losses, obligations, liabilities, costs
and expenses including, without limitation, reasonable
attorneys’ fees incurred by Seller, its officers, directors,
shareholders, employees, agents and representatives or their
property arising out of any breach of the provisions of this
Section 12(c) by Purchaser, its agents, employees or
representatives. The foregoing indemnity obligation of Purchaser
includes acts and omissions of Purchaser and all agents,
consultants and other parties acting for or on behalf of Purchaser.
Purchaser shall maintain in effect during its inspection of the
Property commercial general liability coverage for bodily injury
and property damage in the amount of at least $2,000,000.00
combined single limit, and automobile liability coverage for bodily
injury and property damage in the amount of at least $2,000,000.00
combined single limit, and the policy or policies of insurance
shall be issued by a reputable insurance company or companies which
are qualified to do business in the State of Colorado and shall
name Seller as an additional insured. In addition, before entering
upon the Property, Purchaser shall provide Seller with valid
certificates indicating such insurance is in effect. The foregoing
indemnity shall not apply to claims due to (i) Hazardous Materials
or conditions that are not placed on the Property or caused by
Purchaser or its agents, (ii) pre-existing matters, (iii) or
Seller’s actions or inactions. The indemnity and agreement
set forth in this Section 12(c) shall
survive the expiration or termination of this Contract for any
reason.
(d) Architectural Approval. In
order to assure that homes constructed by Purchaser are compatible
with the other residential construction in the Development and meet
certain architectural, design, and landscaping criteria and
guidelines included in the approved SDP applicable to the Property
(the “SDP
Criteria”) and are otherwise acceptable to Seller, all
construction and landscaping on the Lots shall be subject to the
prior review and approval of Seller. The Master Covenants will
provide for the formation of an architectural review committee
(“Architectural
Review Committee”) and for the Declarant’s
promulgation and adoption of design guidelines (“Design
Guidelines”) to be applied by the Architectural Review
Committee. The Master Covenants and/or the Design Guidelines will
provide for an exemption from obtaining Architectural Review
Committee approval for the Seller and any other person whose House
Plans (as hereinafter defined) has been reviewed and approved by
the Seller.
(i) The Existing
Entitlement Documents contain the Preliminary Development Plan
which include the preliminary architectural, design, and
landscaping criteria and guidelines for the Property which will be
the basis for the SDP Criteria to be incorporated into the SDP.
Purchaser shall submit to Seller the Purchaser’s elevations,
floor plans, typical landscape plans, exterior color palettes for
homes and other buildings, structures and improvements to be
located on the Lots (“House
Plans”) within 20 days following the Effective Date of
this Contract. Seller will review the House Plans and Seller shall
deliver notice to Purchaser of the Seller’s preliminary
approval or disapproval of the House Plans within ten (10) business
days after receipt of the House Plans, with such approval not to be
unreasonably withheld, conditioned or delayed. If Seller fails to
so notify Purchaser of preliminary approval or disapproval within
such 10-business day period, the Purchaser shall provide Seller
with written notice of the same and Seller shall notify Purchaser
within three (3) business days of its approval of disapproval. If
Seller fails to approve or disapprove within such 3-business day
period, the House Plans shall be deemed preliminarily approved. In
the event of disapproval, Purchaser shall revise and resubmit the
House Plans to the Seller for reconsideration, addressing the
matters disapproved by the Seller, and the procedure set forth
above shall be repeated until the House Plans are approved by the
Seller. Seller will use reasonable efforts to confirm that
Purchaser’s House Plans, as approved by Seller, are
compatible with the SDP Criteria. Upon County approval of the SDP,
Seller will conduct a second review of the House Plans for
compliance and compatibility with the SDP Criteria. If the House
Plans do not materially comply with the County-approved SDP
Criteria applicable to the Property, Seller will notify Purchaser.
If Purchaser and Seller are unable to agree upon mutually
acceptable revisions to the House Plans so that they comply with
the SDP Criteria, then Purchaser may terminate this Contract, in
which event the Deposit shall be promptly returned to Purchaser,
Purchaser shall deliver to Seller all information and materials
received by Purchaser from Seller pertaining to the Property and
any non-confidential and non-proprietary information otherwise
obtained by Purchaser pertaining to the Property, and thereafter
the parties shall have no further rights or obligations under this
Contract except those that expressly survive termination of this
Contract. After Seller approves the Purchaser’s House Plans,
and before Purchaser commences construction of homes on the Lots,
Purchaser shall submit to Seller any material changes in the
approved House Plans. Seller shall review the material changes for
general consistency and compatibility with the standards and
criteria set forth in the SDP Criteria and the Master Covenants and
if Seller approves such changes, Seller shall notify Purchaser
within ten (10) business days of its approval, not to be
unreasonably withheld, conditioned or delayed.
(ii) Purchaser shall
obtain Seller approval of House Plans before commencing
construction on a Lot. Purchaser shall perform all construction,
development and landscaping in accordance with the approved House
Plans and in conformity with the Master Covenants and the SDP
Criteria and all other requirements, rules, regulations of any
local jurisdictional authority. Purchaser and Seller acknowledge
that the County will not conduct architectural review nor issue
approval of Purchaser’s house plans, but rather requires the
building permit applicant to comply with the SDP Criteria.
Seller’s approval of Purchaser’s House Plans is only
intended as a review for compatibility with other residential
construction in the Development and the SDP Criteria and does not
constitute a representation or warranty that Purchaser’s
House Plans comply with SDP Criteria and Purchaser shall be
responsible for confirming such compliance.
(e) Disclosures to Homebuyers.
Purchaser shall include in each contract for the sale of any Home
constructed by Purchaser in the Development all disclosures
required by applicable laws, including, but not limited to, if
required by applicable law at the time of sale, a Special District
Disclosure, a Common Interest Community Disclosure, a Mineral
Disclosure, and Source of Potable Water Disclosure, along with
additional disclosures regarding expansive/low-density soils and
radon (“Homebuyer
Disclosure”). The Homebuyer Disclosure shall be in a
form to be agreed upon by Seller and Purchaser before the end of
the Due Diligence Period and a copy of each such signed (or
receipted) Homebuyer Disclosure shall be furnished to Seller upon
request.
13. Force Majeure.
A delay
in or failure to perform any obligations required of Seller under
this Contract shall not constitute a default to the extent such
delay or failure is caused by Force Majeure and all times for
performance shall be extended by the number of days of Force
Majeure. "Force
Majeure" shall be limited to acts of God, war, terrorism,
fire, flood, earthquake, hurricane, weather conditions, strike,
delay or unavailability of labor or materials, delay or
unavailability of utilities, delays in obtaining governmental
approvals to the extent not caused by the party seeking approval,
moratoria, injunctions, orders or directives of any court or
governmental body, or other actions of third parties (but not
including financial inability) which, despite the exercise of
reasonable diligence, the party required to perform is unable to
prevent, avoid or remove. If the performance of an obligation
hereunder, other than the payment of money, is expressly subject to
the effect of Force Majeure, then, unless otherwise provided
herein, the effect of a Force Majeure shall be to extend the time
for performance of such obligation for the reasonable period of
such Force Majeure. Each party shall promptly provide the other
with written notice of any event giving rise to a claim for Force
Majeure within fifteen (15) business days of the occurrence of such
event.
14. Cooperation. Purchaser shall
reasonably cooperate with and require its agents, employees,
subcontractors and other representatives to cooperate with all
other parties involved in construction within the Development,
including, where applicable, the granting of a nonexclusive license
to enter upon the Property conveyed to Purchaser. Purchaser shall
execute any and all documentation reasonably required by Seller or
the Authorities to effectuate any desired modification or change in
connection with Seller’s activities in the Development
including, without limitation, amendments or restatements of the
Master Covenants, or any Final Plat; provided, however, Purchaser
shall not be obligated to execute any such documentation if it will
materially adversely affect the fair market value or use of the
Property or Purchaser’s ability to construct or to sell its
proposed homes within the Property, or if it will materially
increase the cost of ownership or construction or interfere with
ownership or construction.
(a) FHA/VA. Seller shall not be
required to obtain any specific approvals to cause the Property to
qualify for FHA or VA homebuyer financing programs.
(b) Utility Company Refunds. Any
refunds from utility providers relating to construction deposits
made by Seller for the Finished Lot Improvements relating to the
Property shall be the exclusive property of Seller. Purchaser shall
cooperate with Seller in turning over any such funds and directing
those funds to Seller.
(a) Rangeview Metropolitan
District. The water and sewer service provider for the Lots
is the Rangeview Metropolitan District (“Rangeview”)
and Purchaser shall be required to purchase water and sewer taps
for the Lots from Rangeview. During the Due Diligence Period,
Purchaser shall negotiate in good faith to reach agreement with
Rangeview on terms and provisions of a Tap Purchase Agreement (the
"Tap
Purchase Agreement") in which Rangeview agrees to sell to
Purchaser, and Purchaser agrees to purchase from Rangeview, a water
and sewer tap for each Lot in accordance with an agreed-upon
purchase schedule, but in no event later than the issuance of a
building permit for a Lot. If Rangeview and Purchaser agree upon a
Tap Purchase Agreement before the expiration of the Due Diligence
Period, they shall prepare and execute an amendment to this
Contract to set forth the agreed-upon Tap Purchase Agreement and
execute the Tap Purchase Agreement on or before the date of the
First Closing. If Rangeview and Purchaser are unable to agree on a
Tap Purchase Agreement before the expiration of the Due Diligence
Period, this Contract shall terminate and the Deposit shall be
promptly returned to Purchaser, Purchaser shall deliver to Seller
(or destroy) all information and materials pertaining to the
Property provided by Seller and thereafter the parties shall have
no further rights or obligations under this Contract except as
otherwise provided in Section 24 below. It is
expected the combined cost to purchase a water tap and sewer will
be dependent on Lot size, home square footage, number of floors,
driveway lanes, outdoor irrigated square footage, and xeriscape
square footage and may be subject to increase from time to time as
Rangeview revises its fee schedule.
(b) Sky Ranch Metropolitan District No.
1. The Property is included within the boundaries of the Sky
Ranch Metropolitan District No. 1 (“District”).
Persons affiliated with Seller have been elected or appointed to
the board of directors (“Board”)
of the District and Rangeview and serve in that capacity. Purchaser
shall not qualify any persons affiliated with Purchaser as its
representative to serve on the Board of the District or Rangeview
and this prohibition shall survive the Closing and delivery of
deeds hereunder until no person affiliated with Seller serves on
the Board. The District has been formed for purposes that include,
but are not limited to financing, owning, maintaining and/or
managing certain tracts and infrastructure improvements
(“District
Improvements”) to serve the Development, including the
Lots. Purchaser acknowledges that: (i) the construction of District
Improvements shall be without compensation or reimbursement to
Purchaser; and (ii) any reimbursements, credits, payments, or other
amounts payable by the District or Rangeview on account of the
construction of District Improvements or any other matters related
thereto (“Metro District
Payments”) shall remain the property of the Seller and
shall not be conveyed to or otherwise be claimed by Purchaser. Upon
request of Seller, the District or Rangeview, Purchaser will
execute any and all documents that may be reasonably required to
confirm Purchaser’s waiver of any right to Metro District
Payments. The provisions of this Section are material in
determining the Purchase Price, and the Purchase Price would have
been higher but for the provisions of this Section. Seller shall
provide to Purchaser as part of the Seller Documents information
available relating to the District including the service plan and
schedule of current fees and charges. This Section shall survive
Closing.
(c) Fees.
(i) Seller shall pay
any and all of the following to the extent imposed by any Authority
in connection with the Property conveyed to Purchaser: (i) any
parks and recreation fees (including park dedication requirements
and/or cash-in-lieu payments related to the Property as part of the
platting thereof); (ii) drainage fees; (iii) fees for
payment-in-lieu of school land dedications, and (iv) fees and
charges that are due and payable at, before or as a condition
precedent to the approval or recordation of the
Entitlements.
(ii) Following Closing,
Purchaser shall pay all costs and expenses for all water fees,
sewer fees, tap fees, connection fees, facility fees or
assessments, PIF fees, building and other permit costs specific to
obtaining a building permit for construction by Purchaser of homes
on the Lots, and any other costs or fees that may be imposed by the
District, Rangeview or any Authority relating to the construction,
use or occupancy of the homes to be constructed on the Lots,
excluding in all events the fees to be paid by Seller pursuant to
Section 16(c)(i) above. Without limiting the foregoing, and except
for the fees to be paid by Seller pursuant to Section 16(c)(i)
above, Purchaser shall pay any and all of the following to the
extent imposed in connection with the Property conveyed to
Purchaser: (i) system development fees; (iii) any infrastructure
(facility) fee, including, without limitation, any
transportation/road fee, which may be imposed either by the County,
the District or other Authority; (iv) any impact fees and
payment-in-lieu of land dedication fees imposed for roads or other
facilities that are payable at issuance of a building permit; and
(v) any excise fees. The covenants set forth in this Section 16 shall survive each
respective Closing and shall represent a continuing obligation
until the complete satisfaction or payment thereof.
(iii) As of the Effective
Date, the District does not levy a system development fee
(“SDF”)
against property within the District. If the District at any time
before a Closing adopts a SDF, then at the Closing the Purchaser
shall pay the District’s SDF applicable to the Lots acquired
at such Closing. In order to offset Purchaser’s payment of
the District’s SDF for a Lot at a Closing, Purchaser shall
receive a credit against the Purchase Price paid by Purchaser for
such Lot at such Closing equal to the amount of the
District’s SDF paid by Purchaser for the Lot.
17. Reimbursements and
Credits. Purchaser shall
have no right to any reimbursements and/or cost-sharing agreements
pursuant to any agreements entered into between Seller or any of
Seller’s affiliates and third parties which may or may not
affect the Property. In addition, Purchaser acknowledges that
Seller, its affiliates or one (1) or more metropolitan district(s)
have installed or may dedicate land for and install certain roadway
infrastructure improvements ("Infrastructure
Improvements") which benefit all or any part of the
Property, together with adjacent properties, and which may entitle
Seller or its affiliates and/or the Property or any part thereof to
certain reimbursements or credits by the County or other Authority
relating to transportation/road fees or traffic impact fees paid to
the County or other Authority ("Transportation
Fees"). To the extent that Purchaser pays or is required by
the County to pay any such Transportation Fees to the County or
other Authority pertaining to the Infrastructure Improvements which
are in turn reimbursable to Seller by the County or other
Authority, Purchaser shall cooperate with Seller as reasonable
necessary to enable Seller to obtain the reimbursement of such
Transportation Fees paid by Purchaser to the County or other
Authority. Also, in the event that Purchaser receives any credit or
waiver in Transportation Fees as a result of any Infrastructure
Improvements, the Purchaser shall pay to or reimburse Seller and/or
its designated affiliates in an amount equal to such credited or
waived Transportation Fees at the same time that the Transportation
Fees would otherwise be payable by Purchaser. In addition,
Purchaser acknowledges that Seller or its affiliate(s) may have
negotiated or may negotiate with the County or other Authority for
reimbursements to Seller or its affiliates. Purchaser acknowledges
that certain other governmental fees which may be paid by Purchaser
to the County or other Authority may be reimbursed to Seller and/or
its affiliates pursuant to the terms of said agreement. With
respect to any particular governmental fee actually paid by
Purchaser to the County, Purchaser shall not be obligated to pay or
reimburse Seller or its affiliates for such governmental fee. The
obligations and covenants set forth in this Section 17 shall survive the Closing of
the purchase and sale of the Property, shall represent a continuing
obligation of Purchaser, its successors and assigns, until complete
satisfaction thereof.
18. Name and
Logo.
The name and logo of "Sky Ranch" are wholly owned by Seller.
Purchaser agrees that it shall not use or allow the use of the name
"Sky Ranch" or any logo, symbol or other words or phrases which are
names or trademarks used or registered by Seller or any of its
affiliates in any manner to name, designate, advertise, sell or
develop the Property or in connection with the operation or
business located or to be located upon the Property without the
prior written consent of Seller, which consent may be withheld for
any reason. Any consent to the use of such names or logos may be
conditioned upon Purchaser entering into a license agreement with
Seller, as applicable, at no additional cost to Purchaser.
Notwithstanding the foregoing, however, Purchaser shall have the
right, without the need for any further consent or approval by
Seller, to use the name and logo of "Sky Ranch" for the purpose of
providing information in advertisements and marketing materials as
to the general location of the Property and Purchaser’s
construction of homes at such location.
19. Renderings. All renderings,
plans or drawings of the Property or the Development showing
landscaping, trees, amenities and any other improvements are
artists’ conceptions only and may not accurately reflect the
existence of any such items or their actual location. Purchaser
waives any claims based upon any inaccuracy in any such items as
depicted on the renderings, plans or drawings (except no waiver is
made for any such items ultimately required by the
Entitlements).
20. Communications
Improvements. Seller may, but
is not obligated to, enter into an agreement with a service
provider for the development and installation of Communication
Improvements in all or any portion of the Development.
“Communications
Improvements” means any equipment, property and
facilities, if used or useful in connection with the delivery,
deployment, provision or modification of facilities and equipment
to provide monitoring and meter reading services for the benefit of
governmental entities, quasi-governmental entities, or utilities,
regarding the usage of electricity, gas, water and other resources
and any other service or services based on technology that is
similar to or is a technological extension of the foregoing
(“Service”). Communications Improvements do not include
any equipment, facilities or property located on or in the home of
a person who receives services from the service provider, such as,
but not limited to routers, wireless access points, in-house
wiring, set-top boxes, game consoles, gateways and other equipment
under the control of the owner or occupant of the home. Seller may
grant to such service provider one or more permanent,
non-exclusive, perpetual, assignable and recordable easements
(collectively referred to as the “Easement”)
to access and use the Property and other property within the
Development, as necessary, appropriate or desirable, to lay,
install, construct, reconstruct, modify, operate, maintain, repair,
enhance, upgrade, regulate, remove, replace and otherwise use the
Communications Improvements, but Seller shall not create any
covenant or requirement that Seller or a Lot owner use or market
such Communications Improvements. Seller also shall not create any
covenant or requirement that Seller or a Lot owner not use or
market any competing Communications Improvements. Subject to the
foregoing, and so long as any such Easement does not materially
interfere with Purchaser’s ability to construct its intended
single family homes on the Lots or otherwise materially detract
from the value, use or enjoyment of any Lots, Purchaser shall not
object to and shall cooperate with Seller in connection with the
installation and operation of the Communications
Improvements.
21. Soil Hauling. Purchaser shall
be responsible for relocating from the Property all surplus soil
generated during Purchaser's construction of structures on the
Property, which shall be transported at Purchaser’s expense
to a site designated by Seller within the Development, provided
that Seller has designated and made such a site available to
Purchaser at the time Purchaser is ready to transport surplus
soils. If and to the extent that Seller establishes stock pile site
within the Development, Seller may modify any such stock pile
locations from time to time in Seller’s discretion with at
least three (3) business days’ written notice to Purchaser.
At Seller’s request, Purchaser shall supply copies of any
reports or field assessments identifying the material
characteristics of the excess soil prior to accepting such soil for
fill purposes. Notwithstanding the foregoing, in the event that
Seller does not establish a stock pile site or elects not to accept
any surplus soils from Purchaser, then Purchaser shall, at its sole
expense, find a purchaser or taker or otherwise transport and
dispose of such surplus soil upon such terms as it shall desire,
but such surplus soil must still be removed from the Property and
may not be stockpiled on the Property or within the Development
after construction has been completed.
22. Specially Designated Nationals and
Blocked Persons List. Purchaser
represents and warrants to Seller that Purchaser and all persons
and entities owning (directly or indirectly) an ownership interest
in Purchaser are currently in compliance with and shall at all
times prior to the Closing of this transaction remain in compliance
with the regulations of the Office of Foreign Assets Control
("OFAC") of
the United States Department of the Treasury (including those named
on OFAC’s Specially Designated and Blocked Persons List) and
any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit or Support Terrorism), or
other governmental action relating thereto.
(a) Seller's Assignment. Seller may
assign its rights and obligations under this Contract with respect
to the Lots not yet Closed without the consent of Purchaser: (i) to
any entity that acquires all or substantially all of the
Seller’ interests in such Lots which Seller reasonably
believes has the financial ability and experience to perform
Seller’s obligations under this Contract; or (ii) to an
entity that controls, is controlled by, or under common control
with, Seller.
(b) Purchaser's Assignment. The
obligations of the Purchaser under this Contract are personal in
nature, and neither this Contract nor any rights, interests, or
obligations of Purchaser under this Contract may be transferred or
assigned without the prior written consent of Seller, except that
Purchaser may assign its rights or obligations under this Contract,
without the prior written consent of Seller, to (i) any affiliate
of Purchaser, or (ii) any third-party from which Purchaser has a
contractual right to acquire the Lots pursuant to an option
agreement or similar arrangement with such third-party, but
Purchaser shall not be released from any obligations
hereunder.
24. Survival. All covenants and
agreements of either party which are intended to be performed in
whole or in part after any Closing or termination of this Contract,
and all representations, warranties and indemnities by either party
to the other under this Contract shall survive such Closing or
termination of this Contract and shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and permitted assigns; provided, however, that Seller’s
Representations pursuant to this Contract shall survive each
respective Closing for a period of twelve (12) months, and any
action by Purchaser based on a breach of any of such Seller’s
Representations must be brought within such twelve (12) month
period.
25. Condemnation. If a condemnation
action is filed or either party receives written notice from any
competent condemning authority of intent to condemn which directly
affects any Lot or Lots which Purchaser has a right to purchase,
either party may at its sole discretion by written notice to the
other party within ten (10) days following receipt of such
condemnation notice terminate this Contract as to the Lots subject
to the condemnation action and receive a refund of the Deposit with
respect to those Lots only (the Deposit being applied pro rata
equally among all Lots for this purpose), and the parties shall
have no further rights or obligations with respect to those Lots.
If the right to terminate is not exercised by either party, this
Contract shall remain in full force and effect with respect to the
Lot in question and upon exercise of the right to purchase the Lot,
the Closing shall proceed in accordance with the terms of this
Contract, and any condemnation award relating to such Lot shall be
paid to Purchaser at Closing (if received by Seller prior to
Closing) and otherwise shall be assigned to Purchaser at
Closing.
26. Brokers. Each Party does
hereby represent that it has not engaged any broker, finder, or
real estate agent in connection with the transactions contemplated
by this Contract. Each party agrees to and does hereby indemnify
and hold the other harmless from any and all fees, brokerage and
other commissions or costs (including reasonable attorneys’
fees), liabilities, losses, damages or claims which may result from
any broker, agent or finder, licensed or otherwise, claiming
through, under or by reason of the conduct of either of them
respectively in connection with the purchase of the Lots by
Purchaser.
27. Default and
Remedies. Time is of the
essence hereof. If any amount received as a Deposit hereunder or
any other payment due hereunder is not paid by Purchaser, honored
or tendered when due and payable, or if each Closing is not
consummated as required in accordance with Section 8 above, or if any other
covenant, agreement, obligation or condition hereunder is not
performed or waived as herein provided within five (5) business
days (or such longer period as required under this Contract) after
the party failing to perform the same has received written notice
of such failure, there shall be the following
remedies:
(a) Purchaser’s Default. If
Purchaser is in default under this Contract, Seller may terminate
this Contract, in which event the Deposit shall be forfeited and
retained on behalf of Seller, and both parties shall, except as
otherwise provided herein including specifically Section 27(d) ,
thereafter be released from all obligations hereunder. It is agreed
that, except as otherwise provided in this subpart (a) and in
subparts (c) and (d) below and except with respect to the
indemnification by Purchaser in Sections 10, 12 and
26 above, such
payments and things of value are LIQUIDATED DAMAGES and are
SELLER’S SOLE AND ONLY REMEDY for Purchaser’s failure
to perform the obligations of this Contract prior to the Closing.
Except as otherwise provided in this Contract, Seller expressly
waives the remedies of specific performance and additional damages
with respect to a default by Purchaser. Notwithstanding the
foregoing or any other contrary provision of this Contract, any and
all provisions of this Contract pursuant to which Purchaser agrees
to indemnify, hold harmless and defend Seller from and against any
losses, costs, claims, causes of action or liabilities of any kind
or nature, or pursuant to which Purchaser waives any rights or
claims that it may have against Seller, shall survive any
termination of this Contract, and shall be and remain fully
enforceable against Purchaser in accordance with the terms of this
Contract and applicable laws.
(b) Seller’s Default. If
Seller is in default under this Contract, Purchaser may elect AS
ITS SOLE AND EXCLUSIVE REMEDY either: (i) to treat this
Contract as canceled, in which case the Deposit shall be returned
to Purchaser, and Purchaser shall have the right to recover, as
damages, all out-of-pocket expenses incurred by it in negotiating
this Contract and in inspecting, analyzing or otherwise performing
its rights and obligations pursuant to this Contract, but in no
event will the amount of such damages exceed Fifty Thousand Dollars
($50,000.00); or (ii) Purchaser may elect to treat this Contract as
being in full force and effect and Purchaser shall have a right to
specific performance, provided that any such action for specific
performance must be commenced within sixty (60) days after the
expiration of the applicable notice and cure period provided
herein, and, in the event specific performance is not available,
than Purchaser may pursue the remedy set forth in clause (i) above.
Seller shall not be liable for and Purchaser shall not be entitled
to recover exemplary, punitive, special, indirect, consequential,
lost profits or any other damages.
(c) Award of Costs and Fees.
Anything to the contrary herein notwithstanding, in the event of
any litigation arising out of this Contract related to an action
for specific performance brought by either party as permitted in
accordance with the terms of this Contract, the court shall award
the substantially prevailing party all reasonable costs and
expenses, including attorneys’ fees, incurred by the
substantially prevailing party in the litigation or other
proceedings.
(d) Post-Closing Defaults. With
respect to post-Closing defaults, the parties agree that the
non-defaulting party shall be entitled to exercise all rights and
remedies available at law or in equity, except that damages shall
be limited to actual out-of-pocket costs and expenses incurred
(along with reasonable costs and expenses, including
attorneys’ fees, pursuant to Section 27(c)).
(a) Time of the Essence. Time is of
the essence under this Contract. In computing any period of time
under this Contract, 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 computed shall be included unless it is a
Saturday, Sunday, or federal legal holiday, in which event the
period shall run until the end of the next day which is not a
Saturday, Sunday, or federal legal holiday.
(b) Governing Law. This Contract
shall be governed by and construed in accordance with the laws of
the State of Colorado.
(c) Severability. Should any
provisions of this Contract or the application thereof, to any
extent, be held invalid or unenforceable, the remainder of this
Contract and the application thereof, other than those provisions
which shall have been held invalid or unenforceable, shall not be
affected thereby and shall continue in full force and effect and
shall be enforceable to the fullest extent permitted at law or in
equity.
(d) Entire Contract. This Contract
embodies the entire agreement between the parties hereto concerning
the subject matter hereof and supersedes all prior conversations,
proposals, negotiations, understandings and agreements, whether
written or oral.
(e) Exhibits. All schedules,
exhibits and addenda attached to this Contract and referred to
herein shall for all purposes be deemed to be incorporated in this
Contract by this reference and made a part hereof.
(f) Further Acts. Each of the
parties hereto covenants and agrees with the other, upon reasonable
request from the other, from time to time, to execute and deliver
such additional documents and instruments and to take such other
actions as may be reasonably necessary to give effect to the
provisions of this Contract.
(g) Compliance. The performance by
the parties of their respective obligations provided for in this
Contract shall comply with all applicable laws and the rules and
regulations of all governmental agencies, municipal, county, state
and federal, having jurisdiction in the premises.
(h) Amendment. This Contract shall
not be amended, altered, changed, modified, supplemented or
rescinded in any manner except by a written agreement executed by
both parties.
(i) Authority. Each of the parties
hereto represents to the other that each such party has full power
and authority to execute, deliver and perform this Contract, that
the individuals executing this Contract on behalf of said party are
fully empowered and authorized to do so, that this Contract
constitutes a valid and legally binding obligation of such party
enforceable against such party in accordance with its terms, that
such execution, delivery and performance will not contravene any
legal or contractual restriction binding upon such party or any of
its assets and that there is no legal action, proceeding or
investigation of any kind now pending or to the knowledge of each
such party threatened against or affecting such party or affecting
the execution, delivery or performance of this Contract. Each of
the parties hereto represents to the other that each such party is
a duly organized, legal entity and is validly existing in good
standing under the laws of the jurisdiction of its
formation.
(j) Notices. All notices,
statements, demands, requirements, or other communications and
documents (collectively, "Communications")
required or permitted to be given, served, or delivered by or to
either party or any intended recipient under this Contract shall be
in writing and shall be deemed to have been duly given (i) on
the date and at the time of delivery if delivered personally to the
party to whom notice is given at the address specified below; or
(ii) on the date and at the time of delivery or refusal of
acceptance of delivery if delivered or attempted to be delivered by
an overnight courier service to the party to whom notice is given
at the address specified below; or (iii) on the date of
delivery or attempted delivery shown on the return receipt if
mailed to the party to whom notice is to be given by first-class
mail, sent by registered or certified mail, return receipt
requested, postage prepaid and properly addressed as specified
below; or (iv) on the date and at the time shown on the
facsimile or electronic mail message if telecopied or sent
electronically to the number or address specified below and receipt
of such telecopy or electronic mail message is
acknowledged:
To
Seller:
PCY Holdings, LLC
Attention: ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇.
▇▇, ▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a
copy to:
Fox
Rothschild LLP
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇, Esq.
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
To
Purchaser: KB Home
Colorado Inc.
▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
with a
copy to:
KB
Home
▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇., ▇▇▇. ▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
(k) Place of Business. This
Contract arises out of the transaction of business in the State of
Colorado by the parties hereto.
(l) Counterparts; Facsimile
Signature. This Contract may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one (1) and the same
instrument, and either of the parties hereto may execute this
Contract by signing any such counterpart. This Contract may
be executed and delivered by facsimile or by electronic mail in
portable document format (.pdf) or similar means and delivery of
the signature page by such method will be deemed to have the same
effect as if the original signature had been delivered to the other
party.
(m) Captions; Interpretation. The
section captions and headings used in this Contract are inserted
herein for convenience of reference only and shall not be deemed to
define, limit or construe the provisions hereof. Purchaser and
Seller acknowledge that each is a sophisticated builder or
developer, as applicable, and that each has had an opportunity to
review, comment upon and negotiate the provisions of this Contract,
and thus the provisions of this Contract shall not be construed
more favorably or strictly for or against either party. Purchaser
and Seller each acknowledges having been advised, and having had
the opportunity, to consult legal counsel in connection with this
Contract and the transactions contemplated by this
Contract.
(n) Number and Gender. When
necessary for proper construction hereof, the singular of any word
used herein shall include the plural, the plural shall include the
singular and the use of any gender shall be applicable to all
genders.
(o) Waiver. Any one (1) or more
waivers of any covenant or condition by a party hereto shall not be
construed as a waiver of a subsequent breach of the same covenant
or condition nor a consent to or approval of any act requiring
consent to or approval of any subsequent similar act.
(p) Binding Effect. Subject to the
restrictions on assignment contained herein, this Contract shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
(q) Recordation. Purchaser shall
not cause or allow this Contract or any memorandum or other
evidence thereof to be recorded in the County Records or become a
public record without Seller’s prior written consent, which
consent may be withheld at Seller’s sole discretion. If
Purchaser records this Contract, then Purchaser shall be in default
of its obligations under this Contract.
(r) No Beneficiaries. No third
parties are intended to benefit by the covenants, agreements,
representations, warranties or any other terms or conditions of
this Contract.
(s) Relationship of Parties.
Purchaser and Seller acknowledge and agree that the relationship
established between the parties pursuant to this Contract is only
that of a seller and a purchaser of single-family lots. Neither
Purchaser nor Seller is, nor shall either hold itself out to be,
the agent, employee, joint venturer or partner of the other
party.
(t) Interstate Land Sales Full Disclosure
Act and Colorado Subdivision Developers Act Exemptions. It
is acknowledged and agreed by the parties that the sale of the
Property will be exempt from the provisions of the federal
Interstate Land Sales Full Disclosure Act under the exemption
applicable to sale or lease of property to any person who acquires
such property for the purpose of engaging in the business of
constructing residential, commercial or industrial buildings or for
the purpose of resale of such property to persons engaged in such
business. Purchaser hereby represents and warrants to Seller that
it is acquiring the Property for such purposes. It is further
acknowledged by the parties that the sale of the Property will be
exempt under the provisions of the Colorado Subdivision Developers
Act under the exemption applicable to transfers between developers.
Purchaser represents and warrants to Seller that Purchaser is
acquiring the Property for the purpose of participating as the
owner of the Property in the development, promotion and sale of the
Property and portions thereof.
(u) Special Taxing District
Disclosure. In accordance with the provisions of
C.R.S. §38-35.7-101(1), Seller provides the following
disclosure to Purchaser: SPECIAL TAXING
DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS
PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE
PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS
MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND TAX TO SUPPORT
THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN
THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS
WITHOUT SUCH AN INCREASE IN MILL LEVIES. PURCHASERS SHOULD
INVESTIGATE THE SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS
LOCATED BY CONTACTING THE COUNTY TREASURER, BY REVIEWING THE
CERTIFICATE OF TAXES DUE FOR THE PROPERTY, AND BY OBTAINING FURTHER
INFORMATION FROM THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY
CLERK AND RECORDER, OR THE COUNTY ASSESSOR.
(v) Common Interest Community
Disclosure. In accordance with the provisions of
C.R.S. §38-35.7-102(1), Seller provides the following
disclosure to Purchaser: IF SELLER ELECTS TO
FORM A HOMEOWNERS ASSOCIATION UNDER THE MASTER COVENANTS FOR THE
DEVELOPMENT, THEN THE PROPERTY IS,
OR WILL BE PRIOR TO EACH RESPECTIVE CLOSING, LOCATED WITHIN A
COMMON INTEREST COMMUNITY AND IS, OR WILL BE PRIOR TO SUCH CLOSING,
SUBJECT TO THE DECLARATION FOR SUCH COMMUNITY. THE OWNER OF THE
PROPERTY WILL BE REQUIRED TO BE A MEMBER OF THE OWNER’S
ASSOCIATION FOR THE COMMUNITY AND WILL BE SUBJECT TO THE BYLAWS AND
RULES AND REGULATIONS OF THE ASSOCIATION. THE DECLARATION, BYLAWS,
AND RULES AND REGULATIONS WILL IMPOSE FINANCIAL OBLIGATIONS UPON
THE OWNER OF THE PROPERTY, INCLUDING AN OBLIGATION TO PAY
ASSESSMENTS OF THE ASSOCIATION. IF THE OWNER DOES NOT PAY THESE
ASSESSMENTS, THE ASSOCIATION COULD PLACE A LIEN ON THE PROPERTY AND
POSSIBLY SELL IT TO PAY THE DEBT. THE DECLARATION, BYLAWS, AND
RULES AND REGULATIONS OF THE COMMUNITY MAY PROHIBIT THE OWNER FROM
MAKING CHANGES TO THE PROPERTY WITHOUT AN ARCHITECTURAL REVIEW BY
THE ASSOCIATION (OR A COMMITTEE OF THE ASSOCIATION) AND THE
APPROVAL OF THE ASSOCIATION. PURCHASERS OF PROPERTY WITHIN THE
COMMON INTEREST COMMUNITY SHOULD INVESTIGATE THE FINANCIAL
OBLIGATIONS OF MEMBERS OF THE ASSOCIATION. PURCHASERS SHOULD
CAREFULLY READ THE DECLARATION FOR THE COMMUNITY AND THE BYLAWS AND
RULES AND REGULATIONS OF THE ASSOCIATION.
(w) Source of Water Disclosure. In
accordance with the provisions of C.R.S. §38-35.7-104,
Seller provides the following disclosure to Purchaser:
THE
SOURCE OF POTABLE WATER FOR THIS REAL ESTATE IS:
A
WATER PROVIDER, WHICH CAN BE CONTACTED AS FOLLOWS:
NAME:
Rangeview
Metropolitan District
ADDRESS:
c/o
Special District Management Services, Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
WEB
SITE:
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
TELEPHONE:
303-987-0835
SOME
WATER PROVIDERS RELY, TO VARYING DEGREES, ON NONRENEWABLE GROUND
WATER. YOU MAY WISH TO CONTACT YOUR PROVIDER TO DETERMINE THE
LONG-TERM SUFFICIENCY OF THE PROVIDER’S WATER
SUPPLIES.
(x) STORM WATER POLLUTION PREVENTION
PLAN. Seller has
previously filed a Notice of Intent ("NOI") and/or
prepared a Stormwater Pollution Prevention Plan ("SWPPP") to
satisfy its stormwater obligations arising from its work on the
Property. Seller covenants that prior to each Closing Date and
until Closing of the Lots, Seller and/or its contractor shall
comply with the SWPPP with respect to all of the Lots owned by
Seller, and shall comply with all local, state and federal
environmental obligations (including stormwater) associated with
the development of the Lots. Seller shall indemnify and hold
Purchaser harmless from all claims and causes of action arising
from breach of the foregoing covenants of Seller to the extent
there is an uncured notice of violation issued with respect to any
Lot prior to conveyance of the Lot to Purchaser. From and after
conveyance of Lots, and until such time as such Lots are subject to
Purchaser’s SWPPP (as hereafter defined), Purchaser shall be
solely responsible for complying with the SWPPP, maintaining all
required best management practices (“BMPs”), and conducting and
documenting all required inspections. Purchaser shall also comply
with all local state and federal environmental obligations
(including stormwater) associated with its ownership or development
of the Lots conveyed to Purchaser by Seller. Such obligations
include, without limitation, (i) complying with the SWPPP or the
Purchaser’s SWPPP, as applicable, (ii) maintaining all
required BMPs, and (iii) conducting and documenting all required
inspections. Purchaser covenants and Seller acknowledges that, with
respect to Lots acquired by Purchaser, Purchaser shall, within ten
(10) days after conveyance of such Lots, at its sole cost and
expense (subject to Seller’s prior written approval) submit
its own notice of intent for a new stormwater pollution prevention
plan (the “Purchaser’s
SWPPP”). Subsequent to the applicable Closing Date,
Purchaser shall comply with the Purchaser’s SWPPP with
respect to all of the Lots then owned by Purchaser, and shall
comply with all local, state and federal environmental obligations
(including stormwater) associated with its ownership or development
of all such Lots. Purchaser shall indemnify and hold Seller
harmless from all third party claims and causes of action solely
arising from breach of the foregoing covenants of
Purchaser.
(y) Oil, Gas, Water and Mineral
Disclosure. THE SURFACE ESTATE OF THE PROPERTY MAY BE OWNED
SEPARATELY FROM THE UNDERLYING MINERAL ESTATE, AND TRANSFER OF THE
SURFACE ESTATE MAY NOT NECESSARILY INCLUDE TRANSFER OF THE MINERAL
ESTATE OR WATER RIGHTS.
THIRD
PARTIES MAY OWN OR LEASE INTERESTS IN OIL, GAS, OTHER MINERALS,
GEOTHERMAL ENERGY OR WATER ON OR UNDER THE SURFACE OF THE PROPERTY,
WHICH INTERESTS MAY GIVE THEM RIGHTS TO ENTER AND USE THE SURFACE
OF THE PROPERTY TO ACCESS THE MINERAL ESTATE, OIL, GAS OR
WATER.
SURFACE
USE AGREEMENT. THE USE OF THE SURFACE ESTATE OF THE PROPERTY TO
ACCESS THE OIL, GAS OR MINERALS MAY BE GOVERNED BY A SURFACE USE
AGREEMENT, A MEMORANDUM OR OTHER NOTICE OF WHICH MAY BE RECORDED
WITH THE COUNTY CLERK AND RECORDER.
OIL AND
GAS ACTIVITY. OIL AND GAS ACTIVITY THAT MAY OCCUR ON OR ADJACENT TO
THE PROPERTY MAY INCLUDE, BUT IS NOT LIMITED TO, SURVEYING,
DRILLING, WELL COMPLETION OPERATIONS, STORAGE, OIL AND GAS, OR
PRODUCTION FACILITIES, PRODUCING ▇▇▇▇▇, REWORKING OF CURRENT ▇▇▇▇▇,
AND GAS GATHERING AND PROCESSING FACILITIES.
ADDITIONAL
INFORMATION. PURCHASER IS ENCOURAGED TO SEEK ADDITIONAL INFORMATION
REGARDING OIL AND GAS ACTIVITY ON OR ADJACENT TO THE PROPERTY,
INCLUDING DRILLING PERMIT APPLICATIONS. THIS INFORMATION MAY BE
AVAILABLE FROM THE COLORADO OIL AND GAS CONSERVATION
COMMISSION.
(z) Property Tax Disclosure
Summary. PURCHASER SHOULD NOT RELY ON SELLER’S CURRENT
PROPERTY TAXES AS THE AMOUNT OF PROPERTY TAXES THAT PURCHASER MAY
BE OBLIGATED TO PAY IN THE YEAR SUBSEQUENT TO PURCHASE. A CHANGE IN
OWNERSHIP OR PROPERTY IMPROVEMENTS TRIGGERS REASSESSMENTS OF THE
PROPERTY THAT COULD RESULT IN HIGHER PROPERTY TAXES. IF PURCHASER
HAS ANY QUESTIONS CONCERNING VALUATION, CONTACT THE COUNTY PROPERTY
APPRAISER’S OFFICE FOR INFORMATION.
(aa) Waiver of Jury Trial. TO THE
EXTENT PERMITTED BY LAW, THE PARTIES HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT TO
A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT
OF, OR IN ANY WAY RELATING TO THE PROVISIONS OF THIS
CONTRACT.
(bb) Confidentiality. Purchaser and Seller agree that,
prior to each respective Closing, and thereafter if such Closing
does not occur, all information relating to the Property that is
the subject of such Closing, any reports, studies, data and
summaries developed by Purchaser, and any information relating to
the business of either party (together, the "Confidential
Information") shall be kept confidential as provided in this
section. Without the prior written consent of the other party,
prior to the applicable Closing, the Confidential Information shall
not be disclosed by Purchaser, Seller or their Representatives (as
hereinafter defined) in any manner whatsoever, in whole or in part,
except (1) to their Representatives who need to know the
Confidential Information for the purpose of evaluating the Property
and who are informed by Seller or Purchaser as applicable of the
confidential nature thereof; (2) as may be necessary for
Seller, Purchaser or their Representatives to comply with
applicable laws, including, without limitation, governmental
regulatory, disclosure, tax and reporting requirements (including,
without limitation, any applicable reporting requirements for
publicly traded companies); to comply with other requirements and
requests of regulatory and supervisory authorities and
self-regulatory organizations having jurisdiction over Seller,
Purchaser or their Representatives; to comply with regulatory or
judicial processes; or to satisfy reporting procedures and
inquiries of credit rating agencies in accordance with customary
practices of Seller, Purchaser or their affiliates; and (3) to
lenders and investors for the transaction. As used herein,
"Representatives"
shall mean: Seller’s and Purchaser’s managers, members,
directors, officers, employees, affiliates, investors, brokers,
agents or other representatives, including, without limitation,
attorneys, accountants, contractors, consultants, engineers,
lenders, investors and financial advisors. Seller, at its election,
may issue an oral or written press release or public disclosure of
the existence or the terms of this Contract without the consent of
the Purchaser. "Confidential
Information" shall not be deemed to include any information
or document which (I) is or becomes generally available to the
public other than as a result of a disclosure by Seller, Purchaser
or their Representatives in violation of this Contract,
(II) becomes available from a source other than Seller,
Purchaser or any affiliates of Seller or Purchaser or their agents
or Representatives, or (III) is developed by Seller or
Purchaser or their Representatives without reliance upon and
independently of otherwise Confidential Information. In addition to
any other remedies available to a party for breach of this Section,
the non-breaching party shall have the right to seek equitable
relief, including, without limitation, injunctive relief or
specific performance, against the breaching party or its
Representatives, in order to enforce the provisions of this
section. The provisions of this section shall survive the
termination of this Contract, or the applicable Closing, for one
(1) year.
(cc) Survival. Obligations to be
performed subsequent to a Closing shall survive each
Closing.
[SIGNATURE PAGE FOLLOWS]
IN
WITNESS WHEREOF, Seller and Purchaser have executed this Contract
effective as of the day and year first above written.
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SELLER:
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PCY
HOLDINGS, LLC
a
Colorado limited liability company
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By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
June 29, 2017
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PURCHASER:
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KB HOME
COLORADO INC., a Colorado corporation
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By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title:
President
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Date:
May 31, 2017
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LIST OF EXHIBITS
EXHIBIT
A:
CONCEPTUAL
DEVELOPMENT PLAN AND LOTTING DIAGRAM
EXHIBIT
B:
RESERVATIONS AND COVENANTS
EXHIBIT
C:
FINISHED LOT IMPROVEMENTS
EXHIBIT
D:
FORM OF GENERAL
ASSIGNMENT
EXHIBIT A
CONCEPTUAL DEVELOPMENT PLAN AND LOTTING DIAGRAM
A-1
EXHIBIT B
RESERVATIONS AND COVENANTS
Reservation of Easements.
Seller (referred to this paragraph as “Grantor”)
expressly reserves unto itself, its successors and assigns, the
right to grant easements for construction of utilities and other
facilities to support the development of the properties commonly
known as "Sky Ranch," including but not limited to sanitary sewer,
water lines, electric, cable, broad-band and telephone
transmission, storm drainage and construction access easements
across the Property allowing Grantor or its assignees the right to
install and maintain sanitary sewer, water lines, cable television,
broad-band, electric, and telephone utilities on the Property and
on its adjacent property, and further, to accommodate storm
drainage from its adjacent property. Such easements shall not allow
above-grade surface installation of facilities and shall require
the restoration of any surface damage or disturbance caused by the
exercise of such easements, shall not be located within the
building envelope of any Lot or otherwise interfere with the use of
a Lot for construction of Grantee’s homes, shall not
materially detract from the value, use or enjoyment of (i) the
remaining portion of the Property on which such easements are to be
located, or (ii) any adjoining property of Grantee, and shall
not require any reduction in allowed density for the Property or
reconfiguration of planned lots or the building envelope on a lot.
If possible, such easements shall be located within the boundaries
of existing easement areas. Grantor, at its sole expense, shall
immediately restore the land and improvements thereon to their
prior condition to the extent of any damage incurred due to
Grantor’s utilization of the easements herein
reserved.
Reservation of Minerals and Mineral
Rights. To the extent owned by Grantor, Grantor herein
expressly excepts and reserves unto itself, its successors and
assigns, all right, title and interest in and to all minerals and
mineral rights, including bonuses, rents, royalties, royalty
interests and other benefits that may be payable as a result of any
oil, gas, gravel, minerals or mineral rights on, in, under or that
may be produced from the Property, including, but not limited to,
all gravel, sand, oil, gas and other liquid hydrocarbon substances,
casinghead gas, coal, carbon dioxide, helium, geothermal resources,
and all other naturally occurring elements, compounds and
substances, whether similar or dissimilar, organic or inorganic,
metallic or non-metallic, in whatever form and whether occurring,
found, extracted or removed in solid, liquid or gaseous state, or
in combination, association or solution with other mineral or
non-mineral substances, provided that Grantor expressly waives all
rights to use or damage the surface of the Property to exercise the
rights reserved in this paragraph and, without limiting such
waiver, Grantor’s activities in extracting or otherwise
dealing with the minerals and mineral rights shall not cause
disturbance or subsidence of the surface of the Property or any
improvements on the Property.
B-1
Reservation of Water and Water
Rights. To the extent owned by Grantor, Grantor herein
expressly excepts and reserves unto itself, its successors and
assigns, all water and water rights, ditches and ditch rights,
reservoirs and reservoir rights, streams and stream rights, water
▇▇▇▇▇ and well rights, whether tributary, non-tributary or not
non-tributary, including, but not limited to, all right, title and
interest under C.R.S. ▇▇-▇▇-▇▇▇ on, underlying, appurtenant to or
now or historically used on or in connection with the Property,
whether appropriated, conditionally appropriated or unappropriated,
and whether adjudicated or unadjudicated, including, without
limitation, all State Engineer filings, well registration
statements, well permits, decrees and pending water court
applications, if any, and all water well equipment or other
personalty or fixtures currently used for the supply, diversion,
storage, treatment or distribution of water on or in connection
with the Property, and all water and ditch stock relating thereto;
provided that Grantor expressly waives all rights to use or damage
the surface of the Property to exercise the rights reserved in this
paragraph and, without limiting such waiver, Grantor’s
activities in dealing with the water and water rights herein
reserved shall not cause disturbance or subsidence of the surface
of the Property or any improvements on the Property.
The
obligations and covenants set forth herein shall be binding on
Grantee, its successors and assigns, and any subsequent owners of
the Property.
B-2
EXHIBIT C
FINISHED LOT IMPROVEMENTS
1. "Finished Lot
Improvements" means the following improvements on, to or
with respect to the Lots or in public streets or tracts in the
locations as required by all approving Authorities, and
substantially in accordance with the CDs:
(a) overlot grading
together with corner pins for each Lot installed in place, graded
to match the specified Lot drainage template within the CDs (but
not any Overex);
(b) water and sanitary
sewer mains and other required installations in connection
therewith identified in the CDs, valve boxes and meter pits,
substantially in accordance with the CDs approved by the approving
Authorities, together with appropriate markers;
(c) storm sewer mains,
inlets and other associated storm drainage improvements pertaining
to the Lots in the public streets as shown on the CDs;
(d) curb, gutter,
asphalt, sidewalks, street striping, street signage, traffic signs,
traffic signals (if any are required by the approving Authorities),
and other street improvements, in the private and/or public streets
as shown on the CDs; for purposes of “Substantial
Completion”, Seller will either have applied a final lift of
asphalt or in Seller’s discretion posted sufficient financial
guarantees as required by the County for the Lots to qualify for
issuance of building permits in lieu of such final lift of
asphalt;
(e) sanitary sewer
service stubs if required by the Authorities, connected to the
foregoing sanitary sewer mains, installed into each respective Lot
(to a point beyond any utility easements), together with
appropriate markers of the ends of such stubs, as shown on the
CDs;
(f) water service
stubs connected to the foregoing water mains installed into each
Lot (to a point beyond any utility easements), together with
appropriate markers of the ends of such stubs, as shown on the
CDs;
(g) Lot fill in
compliance with the geotechnical engineer’s recommendation,
and with respect to any filled area or compacted area, provide from
a Colorado licensed professional soils engineer a HUD Data Sheet
79G Certification (or equivalent) and a certification that the
compaction and moisture content recommendations of the soils
engineer were followed and that the grading of the respective Lots
complies with the approved grading plans, with overlot grading
completed in conformance with the approving Authorities approved
grading plans within a +/- 0.2’ tolerance of the approved
grading plans; however, the Finished Lot Improvements do not
include any Overex as provided in Section 10(e) of the
Contract;
(h) all storm water
management facilities as shown in the CDs; and
C-1
2. Dry Utilities. Electricity,
natural gas, and telephone service will be installed by local
utility companies. The installations may not be completed at the
time of a Closing, and are not part of the Finish Lot Improvements;
provided, however, that: (i) with respect to electric distribution
lines and street lights, Seller will have signed an agreement with
the electric utility service provider and paid all costs and fees
for the installation of electric distribution lines and facilities
to serve the Lots, and all sleeves necessary for electric, gas,
telephone and/or cable television service to the Lots will be
installed; (ii) with respect to gas distribution lines, Seller will
have signed an agreement with the gas utility service provider, and
paid all costs and fees for the installation of gas distribution
lines and facilities to serve the Lots. Seller will take
commercially reasonable efforts to assist Purchaser in coordinating
with these utility companies to provide final electric, gas,
telephone and cable television service to the residences on the
Lots, however, Purchaser must activate such services through an end
user contract. Purchaser acknowledges that in some cases the
telephone and cable companies may not have pulled the main line
through the conduit if no closings of residences have occurred.
Notwithstanding the foregoing, if dry utilities have not been
installed upon Substantial Completion of the Finished Lot
Improvements, Seller shall be obligated to have contracted for same
and paid all costs and fees payable for such installation. Unless
Seller has contracted for such installation and paid such costs
before the Effective Date, Seller will give Purchaser notice when
such contracts have been entered and such costs paid. With respect
to any other improvements that are required by the subdivision
improvement agreement applicable to the Lots but which are not
addressed as part of the Finished Lot Improvements, Seller shall
complete such other improvements, to the extent required by the
County, so as not to delay the issuance of building permits or
certificates of occupancy for residences constructed on the
Lots.
3. CO Required Improvements. The
improvements which are not required for the issuance of building
permits, but which are required by the Authorities so that
dwellings and other home improvements constructed or to be
constructed by Purchaser on the Lots are eligible for the issuance
of certificates of occupancy for homes will be completed by Seller
as required by the Authorities so that Purchaser is not delayed or
prevented from obtaining certificates of occupancy for homes
constructed by Purchaser on the Lots.
C-2
4. Wastewater Treatment
Facilities. Rangeview will be constructing a new wastewater
reclamation facility (“WWRF”) for the Development.
Prior to closing, Seller shall provide evidence to Purchaser that
Rangeview has received the necessary authorizations from the Water
Quality Control Division of the Colorado Department of Public
Health and Environment and from the County to construct the WWRF,
and has awarded a contract for the construction of the WWRF.
Purchaser acknowledges that the currently planned WWRF for the
Development may not be Substantially Complete on or before the
dates that Purchaser obtains building permits and certificates of
occupancy for Lots. Therefore, Seller shall provide, at
Seller’s sole cost, a temporary alternative service for the
processing of wastewater sufficient for the issuance of building
permits and certificates of occupancy consisting of two sequential
batch reactor basins with a combined volume of 500,0000 gallons,
along with appurtenant facilities to mitigate the development of
odors, that Rangeview’s engineer will certify as having been
constructed in accordance with approved plans and specifications
(the “Alternative
Service”). The Alternative Service shall be
operational on the date that Purchaser closes on such Lot, as part
of Substantial Completion of the Finished Lot Improvements, and
shall continue in operation until such time as the wastewater
treatment plant is substantially complete and placed into
operation. In the event the County withholds such building permits
and/or certificates of occupancy pending final completion of the
WWRF, Purchaser may, at its election, upon notice to Seller, defer
any applicable closing until such a time that the County deems the
Lots are eligible for permit issuance. On or before the First
Closing, Seller have deposited funds into an escrow with the Title
Company pursuant to an “Offsite
Infrastructure Escrow Agreement” equal to the
contracted cost to substantially complete the WWRF for the
Development which Seller and/or Rangeview shall have the right to
draw upon to pay for water and sewer infrastructure improvements as
constructed. The form of the Offsite Infrastructure Escrow
Agreement shall be provided to Purchaser for Purchaser’s
review not less than twenty (20) days prior to the expiration of
the Due Diligence Period and shall be subject to Purchaser’s
review and approval during the Due Diligence Period and if
Purchaser is not satisfied with such agreement for any reason, then
Purchaser’s sole remedy shall be to terminate this Agreement
under Section 10(a) and if Purchaser does not so terminate the
Agreement then the Offsite Infrastructure Escrow Agreement shall be
deemed approved. At Closing the Purchaser may become a party by
joinder to the Offsite Infrastructure Escrow Agreement solely with
respect to remedies for a Seller default in timely completing the
Offsite Infrastructure Improvements, including a step right if
Seller does not timely complete the WWRF.
5. Tree Lawns/Sidewalks.
Notwithstanding anything in this Contract to the contrary, Seller
shall have no obligation to construct, install, maintain or pay for
the maintenance, construction and installation of (i) any
landscaping or irrigation for such landscaping behind the curb on
any Lot that is to be maintained by the owner of such lot
(collectively, “Tree
Lawns”), but Seller shall be responsible for
constructing and installing the detached sidewalks and ramps
(collectively, “Sidewalks”)
that are located immediately adjacent to any Lot or on a tract as
required by the approved CDs, County, or any other Authority and/or
applicable laws as provided in this Contract. Purchaser shall be
responsible for installing any other lead walks, pathways, and
driveways and any other flatwork on the Lots. Purchaser shall
install all Tree Lawns on or adjacent to the Lots in accordance
with all applicable CDs, requirements, regulations, laws,
development codes and building codes of all
Authorities.
6. Warranty.
(a) Government Warranty
Period. The Authorities
require warranties (each a “Governmental
Warranty”) for periods of time after the final
completion (each a “Government Warranty
Period”) that is applicable to certain Finished Lots
Improvements that are dedicated to or owned, and accepted for
maintenance by the Authorities (the “Public
Improvements”). In the event a claim is made under a
Governmental Warranty or defects in the Public Improvements are
discovered or become apparent during the applicable Government
Warranty Period, then Seller shall coordinate the repairs with the
applicable Authorities and cause the contractors and service
provider(s) who performed the work or supplied the materials in
which the defect(s) appear to complete such repairs or, if such
service providers fail to correct such defects, otherwise cause
such defects to be repaired to the satisfaction of the Authorities.
Any costs and expenses incurred pursuant to a Government Warranty
in connection with any repairs or warranty work performed during
the Government Warranty Period (including, but not limited to, any
costs or expenses incurred to enforce any warranties against any
service providers) shall be borne by Seller, unless such defect was
caused by Purchaser or its contractors, subcontractors, employees,
or agents, in which event Purchaser shall pay all such costs and
expenses to the extent such defect was caused by Purchaser or its
contractors, subcontractors, employees, or agents.
C-3
(b) Non-Government Warranty
Period. Seller
warrants (“Non-Government
Warranty”) to Purchaser that each Finished Lot
Improvement, other than the Public Improvements, shall have been
constructed in accordance with the CDs and other applicable
Entitlements for one (1) year from the date of Final Completion of
the Improvement (the “Non-Government
Warranty Period”). If Purchaser delivers written
notice to Seller of breach of the Non-Government Warranty during
the Non-Government Warranty Period, then Seller shall coordinate
the corrections with Purchaser and cause the contractors and
service provider(s) who performed the work or supplied the
materials in which the breach of Non-Government Warranty appears to
complete such corrections or, if such contractors and service
providers fail to make such corrections, otherwise cause such
corrections to be made to the reasonable satisfaction of Purchaser.
Any costs and expenses incurred in connection with a breach of the
Non-Government Warranty shall be borne by Seller (including, but
not limited to, any costs or expenses incurred to enforce any
warranties against contractors and service providers), unless such
breach was caused by Purchaser or its contractors, subcontractors,
employees, or agents, in which event Purchaser shall pay all such
costs and expenses to the extent the breach was caused by Purchaser
or its contractors, subcontractors, employees, or
agents.
(c) EXCEPT AS EXPRESSLY
PROVIDED IN THIS SECTION 6 OF THIS EXHIBIT C AND ELSEWHERE IN THE
CONTRACT OR OTHER CLOSING DOCUMENTS ENTERED BY SELLER AT OR PRIOR
TO CLOSING, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY
KIND TO PURCHASER IN RELATION TO THE FINISHED LOT IMPROVEMENTS,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF HABITABILITY, MERCHANTABILITY, OR FITNESS FOR ANY
PARTICULAR PURPOSE, AND EXPRESSLY DISCLAIMS ALL OF THE SAME AND
SHALL HAVE NO OBLIGATION TO REPAIR OR CORRECT AND SHALL HAVE NO
LIABILITY OR RESPONSIBILITY WITH RESPECT TO ANY DEFECT IN
IMPROVEMENTS FOR WHICH NO CLAIM IS ASSERTED DURING THE APPLICABLE
WARRANTY PERIOD OR AS OTHERWISE PROVIDED BY LAW.
C-4
EXHIBIT D
FORM OF GENERAL ASSIGNMENT
GENERAL
ASSIGNMENT
Reference is hereby
made to that certain Purchase and Sale Agreement dated as of
_______________, 2017 (the "Agreement"), pursuant to which PCY
Holdings, LLC, a Colorado limited liability company ("Seller"), has
agreed to sell to KB Home Colorado Inc., a Colorado corporation
("Purchaser"), the Property as described in the
Agreement.
For
good and valuable consideration, the receipt of which is hereby
acknowledged, Seller hereby assigns and transfers to Purchaser on a
non-exclusive basis, Seller's right, title and interest (but not
any obligations, all of same remaining with seller) in the
following as the same relate solely to the Property, and to the
extent the same are assignable: (i) all subdivision agreements,
development agreements, and entitlements; (ii) all construction
plans and specifications; (iii) all construction and other
warranties and indemnities including any and all warranties from
all contractors and service provider(s) who performed work or
supplied materials for the Property and the Development; and (iv)
all development rights benefiting the Property.
SELLER:
PCY
Holdings, LLC,
a
Colorado corporation
By:
Name:
Title:
Date:
D-1
FIRST AMENDMENT TO
(Sky Ranch)
THIS
FIRST AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this “Amendment”)
is made as of the date the last of the Parties executes and dates
this Amendment (the “Effective
Date”), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company (“Seller”),
and KB HOME COLORADO INC., a
Colorado corporation (“Purchaser”).
Seller and Purchaser may be referred to collectively as the
“Parties.”
RECITALS
A. Seller
and Purchaser previously entered into a Contract For Purchase And
Sale of Real Estate effectively dated June 29, 2017 (the
“Contract”)
for approximately 149 platted single-family detached residential
lots in the Sky Ranch master planned residential community in the
County of Arapahoe, State of Colorado.
B. Purchaser
and Seller now desire to amend the terms and conditions of the
Contract as set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants contained in
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Purchaser and Seller hereby agree as follows:
1. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to September 15, 2017.
2. Miscellaneous.
In the case of any conflict between the terms of this Amendment and
the provisions of the Contract, the provisions of this Amendment
shall control. Except as the Contract is specifically modified by
this Amendment, the Parties hereby ratify, reaffirm, and restate
the terms of the Contract. This Amendment may be executed in
counterparts, each of which shall be deemed an original and may be
signed and delivered by facsimile transmission or electronic mail,
and all of which, when taken together, shall constitute one and the
same Amendment.
[SIGNATURE
PAGE FOLLOWS]
1
IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the last day and year written below.
|
SELLER:
PCY
HOLDINGS, LLC, a Colorado limited liability company
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
August 28, 2017
PURCHASER:
KB HOME
COLORADO INC.,
a
Colorado corporation
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
Date:
August 28, 2017
|
SIGNATURE
PAGE TO FIRST AMENDMENT
2
SECOND AMENDMENT TO
(Sky Ranch)
THIS
SECOND AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this “Amendment”)
is made as of the date the last of the Parties executes and dates
this Amendment (the “Effective
Date”), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company (“Seller”),
and KB HOME COLORADO INC., a
Colorado corporation (“Purchaser”).
Seller and Purchaser may be referred to collectively as the
“Parties.”
RECITALS
A. Seller
and Purchaser previously entered into a Contract For Purchase And
Sale of Real Estate effectively dated June 29, 2017 (the
“Contract”)
for approximately 149 platted single-family detached residential
lots in the Sky Ranch master planned residential community in the
County of Arapahoe, State of Colorado.
B. Purchaser
and Seller now desire to amend the terms and conditions of the
Contract as set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants contained in
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Purchaser and Seller hereby agree as follows:
1. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to September 29, 2017.
2. Miscellaneous.
In the case of any conflict between the terms of this Amendment and
the provisions of the Contract, the provisions of this Amendment
shall control. Except as the Contract is specifically modified by
this Amendment, the Parties hereby ratify, reaffirm, and restate
the terms of the Contract. This Amendment may be executed in
counterparts, each of which shall be deemed an original and may be
signed and delivered by facsimile transmission or electronic mail,
and all of which, when taken together, shall constitute one and the
same Amendment.
[SIGNATURE
PAGE FOLLOWS]
1
IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the last day and year written below.
|
SELLER:
PCY
HOLDINGS, LLC, a Colorado limited liability company
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
September 15, 2017
PURCHASER:
KB HOME
COLORADO INC.,
a
Colorado corporation
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
Date:
September 15, 2017
|
2
THIRD AMENDMENT TO
(Sky Ranch)
THIS
THIRD AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this “Amendment”)
is made as of the date the last of the Parties executes and dates
this Amendment (the “Effective
Date”), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company (“Seller”),
and KB HOME COLORADO INC., a
Colorado corporation (“Purchaser”).
Seller and Purchaser may be referred to collectively as the
“Parties.”
RECITALS
A. Seller
and Purchaser previously entered into a Contract For Purchase And
Sale of Real Estate effectively dated June 29, 2017 (the
“Contract”)
for approximately 149 platted single-family detached residential
lots in the Sky Ranch master planned residential community in the
County of Arapahoe, State of Colorado.
B. Purchaser
and Seller now desire to amend the terms and conditions of the
Contract as set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants contained in
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Purchaser and Seller hereby agree as follows:
1. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to October 6, 2017.
2. Miscellaneous.
In the case of any conflict between the terms of this Amendment and
the provisions of the Contract, the provisions of this Amendment
shall control. Except as the Contract is specifically modified by
this Amendment, the Parties hereby ratify, reaffirm, and restate
the terms of the Contract. This Amendment may be executed in
counterparts, each of which shall be deemed an original and may be
signed and delivered by facsimile transmission or electronic mail,
and all of which, when taken together, shall constitute one and the
same Amendment.
[SIGNATURE
PAGE FOLLOWS]
1
IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the last day and year written below.
|
SELLER:
PCY
HOLDINGS, LLC, a Colorado limited liability company
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
September 28, 2017
PURCHASER:
KB HOME
COLORADO INC.,
a
Colorado corporation
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
Title:
Date:
|
2
FOURTH AMENDMENT TO
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(Sky Ranch)
THIS
FOURTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this “Amendment”)
is made as of the date the last of the Parties executes and dates
this Amendment (the “Effective
Date”), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company (“Seller”),
and KB HOME COLORADO INC., a
Colorado corporation (“Purchaser”).
Seller and Purchaser may be referred to collectively as the
“Parties.”
RECITALS
A. Seller
and Purchaser previously entered into a Contract For Purchase And
Sale of Real Estate effectively dated June 29, 2017 (the
“Contract”)
for approximately 149 platted single-family detached residential
lots in the Sky Ranch master planned residential community in the
County of Arapahoe, State of Colorado.
B. Purchaser
and Seller now desire to amend the terms and conditions of the
Contract as set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants contained in
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Purchaser and Seller hereby agree as follows:
1. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to October 13, 2017.
2. Miscellaneous.
In the case of any conflict between the terms of this Amendment and
the provisions of the Contract, the provisions of this Amendment
shall control. Except as the Contract is specifically modified by
this Amendment, the Parties hereby ratify, reaffirm, and restate
the terms of the Contract. This Amendment may be executed in
counterparts, each of which shall be deemed an original and may be
signed and delivered by facsimile transmission or electronic mail,
and all of which, when taken together, shall constitute one and the
same Amendment.
[SIGNATURE
PAGE FOLLOWS]
1
2
IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the last day and year written below.
|
SELLER:
PCY
HOLDINGS, LLC, a Colorado limited liability company
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
PURCHASER:
KB HOME
COLORADO INC.,
a
Colorado corporation
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
Date:
October 9, 2017
|
2
FIFTH AMENDMENT TO
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(Sky Ranch)
THIS
FIFTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this “Amendment”)
is made as of the date the last of the Parties executes and dates
this Amendment (the “Effective
Date”), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company (“Seller”),
and KB HOME COLORADO INC., a
Colorado corporation (“Purchaser”).
Seller and Purchaser may be referred to collectively as the
“Parties.”
RECITALS
A. Seller
and Purchaser previously entered into a Contract For Purchase And
Sale of Real Estate effectively dated June 29, 2017 (the
“Contract”)
for approximately 149 platted single-family detached residential
lots in the Sky Ranch master planned residential community in the
County of Arapahoe, State of Colorado.
B. Purchaser
and Seller now desire to amend the terms and conditions of the
Contract as set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants contained in
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Purchaser and Seller hereby agree as follows:
1. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to October 20, 2017.
2. Miscellaneous.
In the case of any conflict between the terms of this Amendment and
the provisions of the Contract, the provisions of this Amendment
shall control. Except as the Contract is specifically modified by
this Amendment, the Parties hereby ratify, reaffirm, and restate
the terms of the Contract. This Amendment may be executed in
counterparts, each of which shall be deemed an original and may be
signed and delivered by facsimile transmission or electronic mail,
and all of which, when taken together, shall constitute one and the
same Amendment.
[SIGNATURE
PAGE FOLLOWS]
1
IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the last day and year written below.
|
SELLER:
PCY
HOLDINGS, LLC, a Colorado limited liability company
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
October 18, 2017
PURCHASER:
KB HOME
COLORADO INC.,
a
Colorado corporation
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
Date:
October 18, 2017
|
2
SIXTH AMENDMENT TO
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(Sky Ranch)
THIS
SIXTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this “Amendment”)
is made as of the date the last of the Parties executes and dates
this Amendment (the “Effective
Date”), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company (“Seller”),
and KB HOME COLORADO INC., a
Colorado corporation (“Purchaser”).
Seller and Purchaser may be referred to collectively as the
“Parties.”
RECITALS
A. Seller
and Purchaser previously entered into a Contract For Purchase And
Sale of Real Estate effectively dated June 29, 2017 (the
“Contract”)
for approximately 149 platted single-family detached residential
lots in the Sky Ranch master planned residential community in the
County of Arapahoe, State of Colorado.
B. Purchaser
and Seller now desire to amend the terms and conditions of the
Contract as set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants contained in
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Purchaser and Seller hereby agree as follows:
1. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to October 31, 2017.
2. Miscellaneous.
In the case of any conflict between the terms of this Amendment and
the provisions of the Contract, the provisions of this Amendment
shall control. Except as the Contract is specifically modified by
this Amendment, the Parties hereby ratify, reaffirm, and restate
the terms of the Contract. This Amendment may be executed in
counterparts, each of which shall be deemed an original and may be
signed and delivered by facsimile transmission or electronic mail,
and all of which, when taken together, shall constitute one and the
same Amendment.
[SIGNATURE
PAGE FOLLOWS]
1
IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the last day and year written below.
|
SELLER:
PCY
HOLDINGS, LLC, a Colorado limited liability company
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
October 20, 2017
PURCHASER:
KB HOME
COLORADO INC.,
a
Colorado corporation
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
Date:
October 20, 2017
|
2
SEVENTH AMENDMENT TO
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(Sky Ranch)
THIS
SEVENTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this “Amendment”)
is made as of the date the last of the Parties executes and dates
this Amendment (the “Effective
Date”), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company (“Seller”),
and KB HOME COLORADO INC., a
Colorado corporation (“Purchaser”).
Seller and Purchaser may be referred to collectively as the
“Parties.”
RECITALS
A. Seller
and Purchaser previously entered into a Contract For Purchase And
Sale of Real Estate effectively dated June 29, 2017 (the
“Contract”)
for approximately 149 platted single-family detached residential
lots in the Sky Ranch master planned residential community in the
County of Arapahoe, State of Colorado.
B. Purchaser
and Seller now desire to amend the terms and conditions of the
Contract as set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants contained in
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Purchaser and Seller hereby agree as follows:
1. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to November 3, 2017.
2. Miscellaneous.
In the case of any conflict between the terms of this Amendment and
the provisions of the Contract, the provisions of this Amendment
shall control. Except as the Contract is specifically modified by
this Amendment, the Parties hereby ratify, reaffirm, and restate
the terms of the Contract. This Amendment may be executed in
counterparts, each of which shall be deemed an original and may be
signed and delivered by facsimile transmission or electronic mail,
and all of which, when taken together, shall constitute one and the
same Amendment.
[SIGNATURE
PAGE FOLLOWS]
1
IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the last day and year written below.
|
SELLER:
PCY
HOLDINGS, LLC, a Colorado limited liability company
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
October 31, 2017
PURCHASER:
KB HOME
COLORADO INC.,
a
Colorado corporation
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Division President
Date:
October 31, 2017
|
2
EIGHTH AMENDMENT TO
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(Sky Ranch)
THIS
EIGHTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this “Amendment”)
is made as of the date the last of the Parties executes and dates
this Amendment (the “Effective
Date”), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company (“Seller”),
and KB HOME COLORADO INC., a
Colorado corporation (“Purchaser”).
Seller and Purchaser may be referred to collectively as the
“Parties.”
RECITALS
A. Seller and
Purchaser previously entered into a Contract For Purchase And Sale
of Real Estate effectively dated June 29, 2017 (the
“Contract”)
for approximately 149 platted single-family detached residential
lots in the Sky Ranch master planned residential community in the
County of Arapahoe, State of Colorado.
B. Purchaser and
Seller now desire to amend the terms and conditions of the Contract
as set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants contained in
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Purchaser and Seller hereby agree as follows:
1. Due Diligence
Period. The expiration of the Due Diligence Period, as
defined in Section 10(a) of the Contract, is hereby extended to
November 7, 2017.
2. Miscellaneous.
In the case of any conflict between the terms of this Amendment and
the provisions of the Contract, the provisions of this Amendment
shall control. Except as the Contract is specifically modified by
this Amendment, the Parties hereby ratify, reaffirm, and restate
the terms of the Contract. This Amendment may be executed in
counterparts, each of which shall be deemed an original and may be
signed and delivered by facsimile transmission or electronic mail,
and all of which, when taken together, shall constitute one and the
same Amendment.
[SIGNATURE
PAGE FOLLOWS]
1
IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the last day and year written below.
|
SELLER:
PCY
HOLDINGS, LLC, a Colorado limited liability company
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
PURCHASER:
KB HOME
COLORADO INC.,
a
Colorado corporation
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
Date:
November 3, 2017
|
2
NINTH AMENDMENT TO
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(Sky Ranch)
THIS
NINTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this “Amendment”)
is made as of the date the last of the Parties executes and dates
this Amendment (the “Effective
Date”), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company (“Seller”),
and KB HOME COLORADO INC., a
Colorado corporation (“Purchaser”).
Seller and Purchaser may be referred to collectively as the
“Parties.”
RECITALS
C. Seller and
Purchaser previously entered into a Contract For Purchase And Sale
of Real Estate effectively dated June 29, 2017 (the
“Contract”)
for approximately 149 platted single-family detached residential
lots in the Sky Ranch master planned residential community in the
County of Arapahoe, State of Colorado.
D. Purchaser and
Seller now desire to amend the terms and conditions of the Contract
as set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants contained in
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Purchaser and Seller hereby agree as follows:
3. Due Diligence
Period. The expiration of the Due Diligence Period, as
defined in Section 10(a) of the Contract, is hereby extended to
November 10, 2017.
4. Miscellaneous.
In the case of any conflict between the terms of this Amendment and
the provisions of the Contract, the provisions of this Amendment
shall control. Except as the Contract is specifically modified by
this Amendment, the Parties hereby ratify, reaffirm, and restate
the terms of the Contract. This Amendment may be executed in
counterparts, each of which shall be deemed an original and may be
signed and delivered by facsimile transmission or electronic mail,
and all of which, when taken together, shall constitute one and the
same Amendment.
[SIGNATURE
PAGE FOLLOWS]
1
IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the last day and year written below.
|
SELLER:
PCY
HOLDINGS, LLC, a Colorado limited liability company
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
November 7, 2017
PURCHASER:
KB HOME
COLORADO INC.,
a
Colorado corporation
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
Date:
November 7, 2017
|
2