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HomeMy WebLinkAboutC03-342 Berry Creek LLC CDS - ~ 4-2, - I D AGREEMENT CONCERNING MILLER RANCH COMMUNITY CENTER THIS AGREEMENT is made this JltiJday of ~k-2003, by and between, Eagle County, Colorado, a body corporate and p tic ("County") and Berry Creek Limited Liability Co., a Colorado limited liability company ("Berry Creek"). The aforesaid parties to this Agreement are collectively referred to herein from time to time as the "Parties." RECITALS A. The County is the owner of certain real property described in Exhibit "A" attached hereto and incorporated herein by this reference ("Property"). B. The County and Berry Creek have entered into a Development Agreement dated'-- March 12, 2002. 3.nd. a Land Lease and Option Agreement dated August 20, . 2002~1)Ursuant to .- ------Which-Be~i~ekjs-to.deve1opihe-Property.intoJL~ing1e.-andmulti-Jamily housin~=.~~~,,=.~~~= ~__.~_=.---- development project. The project is to consist of 282 units. C. The County desires to construct a Community Center facility on Parcel 1 of Tract D of the Miller Ranch Planned Unit Development. The Parties agree that such facility is desirable and an asset to the community and the development. AGREEMENT NOW THEREFORE, in consideration of the foregoing recitals and mutual promises and covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties do hereby agree as follows: 1. Berry Creek shall provide for the costs of development and construction of the Community Center facility to be spread across the sales price of all 282 units, with a projected gross sales price increase of Two Thousa!ld Dollars ($2,000.00) per unit and for a total of Five Hundred and Sixty Four Thousand Dollars ($564,000.00) to be used by the County for development and anticipated construction of the Community Center on Parcell of Tract D. Due to the substantial completion of Phase I of development of Miller Ranch, the sum of Five Hundred and Sixty Four Thousand Dollars ($564,000.00) shall be allocated by withholding Three Thousand and Forty Nme Dollars ($3,049.00) per unit from the sale of 185 of the units within Phase 2 and Phase 3 of development, such funds to be paid to County from Berry Creek's proceeds at the time of closing of each unit. The allocation of the Five Hundred and Sixty Four Thousand Dollars ($564,000.00) by withholding Three Thousand and Forty NmeDollars ($3,049.00) from the sale of each of the 185 units shall not further mcreasethe' purchase price of these 185 units. , ~ 2. For purposes of the Calculation of Equity Share as set forth in Paragraph 7(c) of the Development Agreement dated March 12, 2002, the Parties agree as follows: a. Berry Creek has increased the gross sales price by Two Thousand Dollars ($2,000.00) per unit, for a total of Five Hundred and Sixty Four Thousand Dollars ($564,000.00) to be used by the County for development and anticipated construction of the Community Center on Parcell of Tract D. b. The aforementioned proceeds to be withheld from the sale of the 185 units within Phase 2 and Phase 3 of development and paid to the County at the time of closing of each unit shall be treated as "closing costs" to be deducted from the Gross Sales Price in calculating the Equity Share pursuant to the Development Agreement. 3. Berry Creek hereby represents and warrants to the County that their Lender, Wells Fargo Bank West, N.A., has approved the withholding of the aforementioned funds at the closing of each unit. This Agreement shall not constitute an assessment against property pursuant to Section 5.4 of the Berry Creek Deed of Trust from Eagle County, Colorado'a~d Berry Creek Limited Liability Co. to the Public Trustee of Eagle County, Colorado for the "-.._ benefit of Wells Fargo Bank West, N.A., dated July 26,2002. 'I. The-P-arti-es-intendto.-enter-int~~mutually.-agreeabl~ent=Management-~.- -.'-- -~--- Agreement for the construction and project management of the Community Center, however, if such an agreement is not reached by the Parties, Berry Creek shall continue to be obligated to contribute to the County the amount set forth in Paragraph 1 hereof. In advance of construction, Berry Creek shall release the Community Center property, Parcell of Tract D of the Miller Ranch Planned Unit Development, from all indebtedness and any obligations under the existing loan agreement with Wells Fargo Bank West, N.A and deeds of trust so the Community Center is not subject to Berry Creek's indebtedness. Parties hereby state that if constructed, the Parties also intend to enter into a lease agreement whereby the County leases the Community Center to the Miller Ranch Property Owners Association for a to be detennined rental. price subject to mutually agreed upon terms and conditions. 5. All notices, demands and requests shall be in writing, and shall be effectively made if sent by United States Certified Mail, return receipt requested, postage prepaid, by nationally reCognized overnight courier guarantee next day delivery, by telecopy or by personal delivery, properly addressed as follows: . , ~ BERRY CREEK LLC Berry Creek Limited Liability Co. 21820 Burbank Blvd. Suite 120 Woodland Hills, CA 91367 Attention: Andrew Gerber, Manager COUNTY Board of County Commissioners P.O. Box 850 Eagle, CO 81631 2 and Eagle County Attorney P.O. Box 850 Eagle, CO 81631 Unless this Agreement specifically provides otherwise, all notices shall be deemed received: three (3) business days following deposit in the United States Mail with respect to certified letters, one (1) business day following deposit if delivered by an overnight courier guaranteeing next day delivery and on the same day if sent by personal delivery or telecopy (with proof of transmission). Any party may change its address for the service of notice by giving written notice of such change to the other party, in any matter specified above. 6. This Agreement and all matters relating hereto shall be construed in aCCOf.dl~.nce with the laws of the State of Colorado. The Parties agree that venue in any action to enforce--or.. interpret this Agreement shall be in the District Court in the 5th Judicial District for the State of Colorado. -~ 7. The making, execution and delivery of this Agreement by the parties hereto has not been induced by any prior or contemporaneous representation, statement, warranty or agreement as to any matter other than those herein expressed. This agreement embodies the entire understanding and agreement of the parties, and there are no further or other agreements or understandings, written or oral, in effect between them relating to the subject matter hereof 8. Parties. This Agreement is not assignable without the prior written consent of both 9. The terms and conditions of this Agreement shall be binding and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. 10. No waiver of default by either party of any of the terms, covenants,'and conditions hereof to be performed, kept and observed by the other party shall be construed, or shall operate as a waiver of any subseque~t default of any of the terms, covenants, or conditions herein contained, to be performed, kept and observed by the other party. , ~ 11. It is understood and agreed by and between the Parties that if any covenant, condition or provision contained in this Agreement is held to be invalid by any court of competent jurisdiction, or otherwise appears to be invalid, such invalidity shall not affect the validity of any other covenant, condition or provision herein contained; provided however, that the invalidity of any such covenant, condition or provision does not materially prejudice either party in its respective rights and obligations contained in the remaining valid covenants, conditions and provisions of this Agreement. '" - ... .. .._~~-~~.=-,~ ~~~ 12. This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof 3 13. In the event of any legal action concerning the interpretation or enforcement of this Agreement, the prevailing party shall be entitled to recover all of its costs and expenses, including but not limited to, attorney fees and costs. 14. Each Party hereby represents, warrants and covenants to the other that it has the full right, power and authority to enter into this Agreement and make the agreements contained herein on its part to be performed; that the execution, delivery and performance of this Agreement has been duly authorized by such Party; that this Agreement constitutes the valid and binding obligation of such Party, enforceable in accordance with its terms; and, that the making of this Agreement and the performance thereof will not violate any present laws or ordinances or the terms or provisions of any agreement to which such Party is a party or under which such Party is otherwise bound. " IN WITNESS WHEREOF, the Parties have executed this Agreement to beeffective as of . the..day...anc4rear..:fir:sUv.ren.above..-.. ________~____..___~" ____,_~~__ ---. -. ----".. ATTEST: ATTEST: By: COUNTY OF EAGLE, STATE OF COLORADO By and Through its Board of County Commissioners BY:~ Michae L. Galle, Chairman BERRY CREEK LIMI LIABILITY CO. A Colo ado Limited Liab' ity Company , .. 4 EXHIBIT A LEGAL DESCRIPTION TRACT D, BERRY CREEK / MILLER RANCH PLANNED UNIT DEVELOPMENT, ACCORDING TO THE PLAT RECORDED JUNE 25, 2002, AT RECEPTION NO. 799649, COUNTY OF EAGLE, STATE OF COLORADO. GRADING AND DRAINAGE EASEl\.1ENT SITUATED ON TRACT C, FOR THE PURPOSE OF CREATING AND MAINTAINING A DRAINAGE DETENTION POND FOR TRACT D AS SHOWN ON PLAT RECORDED JUNE 25, 2002 ATREC?PTION NO. 79964~: ". " , ~ 5