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HomeMy WebLinkAboutC09-063 MOU Berry CreekMEMORANDUM OF AGREEMENT BY THIS MEMORANDUM OF AGREEMENT (this "Memorandum"), entered into this day of February, 2009, by and between Eagle County, a Colorado corporation (the "County"), and Berry Creek, LLC, a Colorado limited liability company ("Berry Creek")., RECITALS A. County and Berry Creek entered into a Subdivision and On Site Improvements Agreemern For Miller Ranch Phase II and Phase III dated October 23, 2003 and recorded on October 23, 2003 at Reception No, 854786 in the real property records of the Clerk and Recorder of Eagle County, Colorado (the "SIA"), wherein the parties agreed to assume certain obligations as more particularly described in the SIA. B. During the construction of Miller Ranch Subdivision, Berry Creek posted more than Two Hundred Fifty Eight Thousand Dollars ($258,000.00) in refundable construction deposits with Holy Cross Energy Association, Inc., a Colorado nonprofit corporation (the "Construction Deposits"). Holy Cross Energy Association, Inc. ("Holy Cross") must refund the Construction Deposits to Berry Creek over a ten year period, which began in year 2004. C. 'The amount of the Construction Deposits to be refunded in any given year is based on the total revenue Holy Cross receives for the yeaz from energy used by property owners in the Miller Ranch Subdivision. Calculation of the refund amount due Berry Creek for a given year is completed by Holy Cross in the beginning of the next yeaz and refund checks are issued in May or June. By way of example, refund checks for revenue received in 2006 will be issued in late May or Tune of 2007. D. Berry Creek assigned its rights to receive annual refunds of the Construction Deposits to the County for the purposes of providing security during the warranty period under the SIA. E. The warranty period and all obligations of the SIA have now been completed and the Parties desire to account for the balance of the Construction Deposit. The parties have agreed to an amount to be paid by County to Berry Creek that represents the net present value of half the balance of the current Construction Deposit. AGREEMENT Now therefore, for good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the County and Berry Creek hereby agree as follows: 1. County shall pay to Berry Creek an amount equal to sixty-thousand dollars ($60,000) which amount equals the net present value of half of the remaining balance of the Construction Deposit. Such payment shall be made within thirty (30} days of the execution of this Memorandum. 2. Berry Creek shall and hereby does assign to the County all of its right to recei refunds from Holy Cross of the Construction Deposits. This Memorandum shall serve notice of this assignment to Holy Cross. Berry Creek agrees to perform whatever otl steps may be required from Haly Cross to effectuate this assignment. 3. The County and Berry Creek agree that by this assignment Berry Creek satisfied Berry Creek's obligations pursuant to the SIA. 4. Miscellaneous. (a) This Agreement may be executed in counterparts. Facsimile si shall be binding. (b) The parties agree that this contract was made in accordance with the 1~ of the State of Colorado and shall be so construed. Venue is agreed to exclusively in the courts of Eagle County, Colorado. (c) Any written notice required by this contract shall be deemed deliver through any of the following: (1) hand delivery to the person at the address belo~ (2) delivery by facsimile with confirmation of receipt to the fax number below; (3) within three (3) days of being sent certified first class mail, postage prepa return receipt requested addressed as follows: i. To County Bryan Treu County Attorney's Office PO Box 4708 500 Broadway Eagle, Colorado 81631 ii. To Berry Creek Ross Graves, Manager Berry Creek, LLC PO Box 1959 Gypsum, CO 81637 .~ IN V'VITNESS WHEREOF, the parties hereto have executed this Memorandum of Agreement as o£the day and year first above written. COUNTY: ATTEST: o~ ~""''E Y OF EAGLE, STATE OF COLORADO d Through Its Board of County Commissioners Clerk to the B~Sard o£ --''~*w"~:~'' Sara J. Fis County Commissioners ~y:~ - __-_ --_---' ~v BERRY CREEK: iP ~ BERRY CREED, LLC, a Col redo limited liability company By: oss Graves, its Manager STATE OF COLORADO ) I ) ss. COUNTY OF ~'~ `~/~ ) The foregoing instrument was acknowledged before n ~~, 200 by ~(~_ ~jt.~~.,,,~..o.,.- Creek, LLC. this ~ ~~`'"day of as Manager of Berry Witness my hand and official seal. Zy.~~l~ ~~uJlr•--~ C.v~- otary Public My commission expires: GAR~~ v • C~ J. ~~ q. r~„ s~,~.,,oUB~~G:Pa rF of coy°~ My Commiss'ron Expires 1012A/~11