HomeMy WebLinkAboutC12-270 Eage Ranch Village, LLC Purchase and Sale Agreement PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement ") is dated as of the 24th day of
July, 2012 (the "Effective Date "), and is executed by Eagle Ranch Village, LLC, a Delaware limited
liability company ( "Seller "), and Eagle County, Colorado, a Colorado political subdivision ( "Purchaser ").
WITNESSETH:
WHEREAS, Seller is the owner of the real property legally described as Lots 2, 3 and 4, Eagle
Ranch, Filing No. 26, according to the plat thereof, recorded August 28, 2007, at Reception Number
200722921, in the real property records of Eagle County, Colorado (such property hereinafter referred to
as the "Property");
WHEREAS, Seller and Purchaser desire Purchaser to purchase the Property upon and subject to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the terms and conditions contained herein, Seller and
Purchaser hereby agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise expressly provided herein or unless the context otherwise requires, each of the
following terms when used herein shall have the following defined meanings:
Section 1.1 "Closing" means the date on which title to the Property is transferred to
Purchaser, pursuant to the terms of this Agreement.
Section 1.2 "Development" means the Facility and all other improvements anticipated for
development by Purchaser or others upon the Property.
Section 1.3 "Earnest Money Deposit" or "Deposit" means the deposit made by Purchaser
pursuant to the terms of Section 3.2.
Section 1.4 "Facility" shall mean, collectively, the skilled nursing facility and associated
independent living, assisted living /extended care facilities and any and all buildings (including all
fixtures and improvements related thereto) anticipated to be constructed on the Property.
Section 1.5 "Property" means the real property described in the Recitals.
Section 1.6 "Seller's Knowledge" means the present actual knowledge of Willis J. Wright,
without any duty of investigation whatsoever.
Section 1.7 "Title Company" means the company described in Section 4.1.
Section 1.8 "Title Insurance Commitment" means the commitment for title insurance to be
obtained for Purchaser by Seller according to Section 4.1.
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ARTICLE 2
DUE DILIGENCE; CONTINGENCIES
Section 2.1 Due Diligence.
2.1.1 Purchaser shall have until October 5, 2012 (the "Due Diligence Period ") to
make or obtain, at the expense of Purchaser, such investigations or inspections of the Property as
Purchaser deems necessary. During said Due Diligence Period, Purchaser or its designated agents shall,
upon reasonable notice to Seller, have access to the Property for purposes of performing any
investigations or inspections as Purchaser shall desire. If Purchaser determines, for any reason in its sole
discretion, that the Property is not suitable for Purchaser's intended use, Purchaser may, prior to the
expiration of the Due Diligence Period on written notice to Seller, terminate this Agreement, in which
event the Deposit shall be returned to Purchaser. Should Purchaser not terminate this Agreement within
the Due Diligence Period, then Purchaser irrevocably waives any further right to terminate this
Agreement or obtain a refund of the Deposit paid except where such right is expressly provided and
grounds for such termination exist under other sections of this Agreement. Purchaser agrees, to the extent
permitted by law, to indemnify and hold harmless Seller from and against any liability or claims asserted
against Seller or the Property with respect to any investigations or inspections by Purchaser or with
respect to any entry onto the Property prior to closing by Purchaser or any agent, employee or invitee of
Purchaser in accordance with Section 5.3 below. Notwithstanding anything to the contrary herein,
Purchaser shall have all of the protections available to it under Colorado law and Purchaser does not
waive or intend to waive the limitations of liability that are provided to it under the Colorado
Governmental Immunity Act. Should Purchaser desire to terminate this Agreement pursuant to this
Section 2.1.1, then Purchaser shall provide Seller with a written representation that there exists no
outstanding monies due any person the non - payment of which would give rise to a lien right against the
Property. Nothing herein shall be construed as limitation on Seller's remedies contained elsewhere in this
Agreement, including, without limitation, Section 5.3 below.
2.1.2 Upon the mutual execution hereof by Seller and Purchaser and in no event
later than ten (10) business days after mutual execution hereof, Seller agrees to provide Purchaser with
copies of leases, and shall disclose to Purchaser all easements, liens, including without limitation,
governmental improvements not yet installed or other title matters including, without limitation, rights of
first refusal and options, if any, any and all soils reports, surveys, and environmental studies, if any, and
any other materials presently existing that concern the Property which are in Seller's possession or control
or to Seller's Knowledge are not shown by the public records ( "Off Record Matters "). Purchaser
acknowledges and agrees that the majority of such documents and instruments have been prepared by
independent third parties; therefore, Seller makes no representation or warranty of any type whatsoever
regarding the accuracy or completeness of such documents and instruments, and Purchaser shall rely
solely upon its own investigation of the Property. If Purchaser determines, in its sole discretion and for
any reason, that the Off Record Matters are not acceptable, then Purchaser may, prior to the expiration of
the Due Diligence Period on written notice to Seller, terminate this Agreement, in which event the
Deposit shall be returned to Purchaser.
Section 2.2 Seller Contingency. The sale of the Property to Purchaser as provided in this
Agreement will require the consent of Seller's lender(s). If, for any reason, Seller is unable to obtain the
consent of its lender(s) to this transaction, or any such consent is conditioned in any manner that is
unacceptable to Seller for any reason as determined by Seller in its sole and absolute discretion, then
Seller may terminate this Agreement upon notice given to Purchaser no later than August 31, 2012, and
the Deposit shall thereafter be returned to Purchaser.
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Section 2.3 Buyer Contingencies.
2.3.1 PUD Amendment and Development Plan Approval.
2.3.1.1 Purchaser intends to submit applications to the Town of Eagle for an
amendment to the Eagle Ranch Planned Unit Development Plan (the "PUD Amendment ") and for
Development Plan Approval, and to submit an application for design review approval to the Eagle Ranch
Design Review Board (collectively, the "Approvals "). Seller and purchaser agree to the following basic
terms of the PUD Amendment: (a) that 75 residential dwelling units shall be assigned to Purchaser for its
use in developing the Property, and that no more than 75 residential dwelling units may be constructed on
the Property unless additional residential dwelling units are assigned to the Property as part of the PUD
Amendment and do not diminish the residential dwelling units otherwise allocated to Seller under the
Eagle Ranch Planned Unit Development Plan; (b) that the Property shall be used for the Facility or for
residential use, and not for any other commercial use; and (c) no existing and currently approved
commercial density shall be allocated to the Property but rather shall be allocated to remaining property
owned by Seller in Eagle Ranch, and the Facility shall be approved as a distinct use that is in addition to
Eagle Ranch commercial density (the "PUD Basic Terms "). Notwithstanding the foregoing, after Closing,
nothing herein shall preclude Purchaser or a subsequent owner from seeking approvals for different or
additional uses (commercial or residential) and density. Purchaser acknowledges that Seller would have
the right to participate in the public process associated with any such future approval and Seller would not
be obligated to support such an application. The PUD Amendment may contain such additional terms as
Purchaser shall desire that are approved by Seller as provided below.
2.3.1.2 Purchaser shall submit Purchaser's proposed application for the PUD
Amendment to Seller, which shall include proposed number and type of units, parking, proposed access
and preliminary schematic design plans and the proposed text for the amended PUD Guide in order to
revise the permitted uses of the Property to accommodate the Facility, which applications shall be subject
to Seller's reasonable approval. Seller shall notify Purchaser of Seller's approval or denial of the
proposed PUD Amendment within three (3) business days of Purchaser submitting the applicationfor the
PUD Amendment to Seller and, upon approval, within the same three (3) business days, Seller shall
further provide an agency letter or shall execute forms or documents required by the Town of Eagle to
allow Purchaser to proceed. In the event Seller does not approve the application for the PUD
Amendment, then Purchaser may (i) elect to terminate this Agreement upon notice given to Seller and the
Deposit shall be returned to Purchaser so long as such termination is effected prior to the expiration or
termination of the Due Diligence Period (it being understood and agreed by Purchaser that if Purchaser's
right to terminate is exercised after the termination or expiration of the Due Diligence Period, Purchaser
shall have no claim to the Deposit); or (ii) the Purchaser and Seller negotiate for mutually acceptable
revisions to the application. Following Seller's approval of the application, if any changes to the PUD
Basic Terms are requested or required by the Town of Eagle in order to obtain approval of the PUD
Amendment, then such changes shall be subject to Seller's approval which shall be granted or denied as
provided in this Section 2.3.1.2.
2.3.1.3 Purchaser agrees ' to use reasonable efforts to provide preliminary
detail and material for the Development Plan Approval and the Design Review Board to Seller for review
and comment. Seller's comments will be incorporated to the extent reasonably practicable as determined
by Purchaser. Upon request by Purchaser, Seller shall within three (3) business days provide an agency
letter or shall execute forms or documents required by the Town of Eagle and Eagle Ranch Design
Review Board to allow Purchaser to proceed.
2.3.1.4 Purchaser shall submit applications for all such Approvals within ten
(10) business days after notice of Seller's approval when required, but in no event later than the following
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dates: (a) To the Town of Eagle for approval of the PUD Amendment on or before October 31, 2012; (b)
to the Town of Eagle for the Development Plan Approval on or before December 3, 2012; and (c) to the
Eagle Ranch Design Review Board for preliminary design review approval on or before December 3,
2012. So long as Seller's approval is required and granted under this Agreement, Seller agrees to actively
support Purchaser's applications for the Approvals through the Town of Eagle and design review
processes. Purchaser shall diligently prosecute such applications, but final and binding adoption of the
Approvals by the Town shall not occur until Purchaser closes upon the purchase of the Property. Seller
shall endeavor to have a representative present at any public hearing at which the Approvals shall be
considered by Eagle Ranch Design Review Board, Town of Eagle planning commission or board of
trustees.
2.3.1.5 Recording of the PUD Amendment shall be a condition of Closing in
favor of Seller. In the event that Purchaser desires to close upon the purchase of the Property prior to
recording of the PUD Amendment, Purchaser may do so if a covenant containing the PUD Basic Terms,
in a form approved by Seller, is recorded for Seller's benefit at Closing. At such time as the PUD
Amendment is recorded, the covenant containing the PUD Basic Terms shall be released.
2.3.1.6 In the event that Purchaser has not received approval of the PUD
Amendment, development plan and design review approval in a form and with conditions satisfactory to
Purchaser in its sole discretion, from the Town and Eagle Ranch Design Review Board on or before
December 20, 2012, (the "PUD Amendment Date "), then Purchaser may terminate this Agreement upon
notice given to Seller within two (2) days following the PUD Amendment Date. If Purchaser exercises its
right to extend the Closing Date as provided in Section 6.1, then the PUD Amendment Date shall be
extended to March 29, 2013.
2.3.2 Funding. Purchaser intends to fund the purchase and proposed development
of the Property through several sources, including funds from the refinance of debt secured by
Purchaser's Lake Creek Village housing project, third party participants, grants, donation, and loan
financing (the "Funding "). In the event that Purchaser has not secured Funding for the purchase and
development of the Property acceptable to Purchaser, in Purchaser's sole discretion, on or before
December 20, 2012 (the "Funding Date ") then Purchaser may terminate this Agreement upon notice
given to Seller within two (2) days following the Funding Date. If Purchaser exercises its right to extend
the Closing Date as provided in Section 6.1, then the Funding Date shall be extended to March 29, 2013.
2.3.3 Appraisal. Purchaser may obtain an appraisal of the Property at its sole cost.
If the purchase price exceeds the Property's valuation as determined by an appraiser engaged by
Purchaser, the Purchaser before the expiration of the Due Diligence Period, shall have the sole option and
right to terminate this Agreement by notifying the Seller at which time the Deposit, together with any
interest thereon, shall be returned to the Purchaser.
ARTICLE 3
PURCHASE PRICE AND METHOD OF PAYMENT
Section 3.1 Purchase Price. As consideration for conveyance of the Property by Seller to
Purchaser, Purchaser will pay a purchase price of ONE MILLION SIX HUNDRED THOUSAND AND
NO /100 DOLLARS ($1,600,000.00) (the "Purchase Price "). The Purchase Price shall be payable in
immediately available funds at Closing and shall be adjusted after Closing as set forth in Section 3.3.
Section 3.2 Earnest Money Deposit. Upon execution of this Agreement, Purchaser shall
deliver to Title Company, in cash or other immediately available funds, Thirty Thousand and 00 /100
Dollars ($30,000.00) as the initial "Earnest Money Deposit ", or "Deposit ". If the Closing has not
occurred on or before the conclusion of the Due Diligence Period, then on October 5, 2012, Purchaser
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shall deliver to Title Company, in cash or other immediately available funds, an additional Thirty
Thousand and 00 /100 Dollars ($30,000.00) which shall be an addition to the Deposit, and the full
amount of the Deposit shall at that time be disbursed to Seller and not held in escrow with the Title
Company. If the Closing has not occurred on or before December 31, 2012, then on December 31, 2012,
Purchaser shall deliver to Title Company, in cash or other immediately available funds, an additional
Thirty Thousand and 00 /100 Dollars ($30,000.00) which shall be an addition to the Deposit, and which
shall be immediately disbursed to Seller and not held in escrow with the Title Company. The Deposit,
together with accrued interest, if any, shall be credited to Purchaser at Closing against the Purchase Price
in the maximum amount of $45,000, with any amount of the Deposit in excess of $45,000 being retained
by Seller to offset certain costs of Seller related to the ownership of the Property. Following
disbursement of funds to Seller as provided herein, the Deposit shall be fully non - refundable to
Purchaser except only in the event of a termination of this Agreement due to the sole default of Seller.
Section 3.3 In accordance with applicable public finance law and notwithstanding anything
to the contrary contained in this Agreement, Purchaser shall have no obligations under this Agreement
nor shall any payment be made to Seller without an appropriation thereof in accordance with a budget
adopted by the Board of County Commissioners. All obligations payable beyond the current fiscal year
are subject to funds being available and appropriated prior to Closing.
ARTICLE 4
TITLE AND CONVEYANCE
Section 4.1 Title Commitment. Within five (5) days after execution of this Agreement,
Seller shall provide a title insurance commitment for the Property from Land Title Guarantee Company
(the "Title Company "), which commits to insure title to the Property for the amount of the Purchase
Price (the "Title Insurance Commitment "), together with copies of all title exceptions listed in Schedule
B -2 of the Title Insurance Commitment. At the Closing, Seller shall pay the premium for the title
insurance policy to be issued pursuant to the relevant Title Insurance Commitment. The standard printed
exceptions shall be deleted from such policy, provided Purchaser and Seller each execute documents, if
and to the extent required by the Title Company, to delete the standard printed exceptions and Purchaser
provides any necessary survey of the Property required for such purpose at Purchaser's expense. Seller
agrees to pay the premium for the title insurance endorsement deleting the standard printed exceptions.
Section 4.2 Exceptions to Title. Title to the Property shall be subject to only those
exceptions shown on Schedule B -2 of the Title Insurance Commitment that are accepted by Purchaser in
its sole discretion pursuant to Section 4.4 below. Seller shall comply with all requirements of Schedule
B -1 and shall release all existing deeds of trust, liens and monetary encumbrances in connection with the
Closing.
Section 4.3 Utility, Drainage, Sewer and Public Pedestrian Easements. Portions of the
Property may be subject to certain utility, drainage, sewer, water line and public pedestrian easements
on, over, across and through the Property, which are of record. Purchaser shall have an opportunity to
review and object to these items as set forth in Section 4.4 hereof.
Section 4.4 Title Review. Purchaser shall have the right to inspect the Title Commitment
and copies of the exceptions as well as utility, drainage, sewer and public pedestrian easements identified
in Section 4.3. Written notice by Purchaser of merchantability of title, or content of the Title
Commitment, or of any other unsatisfactory title condition as determined by Purchaser in its sole
discretion, shall be signed by or on behalf of Purchaser and delivered to Seller on or before thirty (30)
days after the Effective Date or within five calendar days after receipt by Purchaser of any change to the
Title Commitment or endorsement to the Title Commitment together with a copy of the document
adding any new exception to title. If Seller does not receive notice by the date above, Purchaser accepts
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the condition of title as disclosed by the Title Commitment as satisfactory. Seller shall have thirty (30)
days after notice of such defects to attempt to cure the defects and render title to the Property marketable,
or to make them satisfactory to Purchaser and the date of the Closing shall be postponed for this purpose
if requested by Seller by no more than 30 days. If Seller fails to render title marketable or satisfactory to
Purchaser, then Purchaser may terminate this Agreement and have returned to it the Deposit or proceed
to Closing and accept title to the Property subject to the defects previously noted by Purchaser without
reduction in the Purchase Price.
Section 4.5 Conveyance of Title. Seller shall convey title to the Property to Purchaser by
special warranty deed, subject to the exceptions and reservations accepted by Purchaser pursuant to
Section 4.4 above (the "Deed ").
Section 4.6 Special Taxing District Disclosure. 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 EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING
OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH
A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN
MILL LEVIES. PURCHASERS SHOULD INVESTIGATE THE DEBT FINANCING
REQUIREMENTS OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH
DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH
INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES.
Section 4.7 Common Interest Community Disclosure. THE PROPERTY IS LOCATED
WITHIN A COMMON INTEREST COMMUNITY AND IS 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 UNIT 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.
ARTICLE 5
CONDITION AND DEVELOPMENT OF PROPERTY
Section 5.1 Master Association. Purchaser acknowledges that as owner of the Property,
Purchaser shall be subject to the provisions and restrictions contained in the Declaration for Eagle Ranch
dated May 26, 1999, and recorded June 23, 1999, under Reception No. 700815 in the Office of the Clerk
and Recorder of Eagle County, Colorado (the "Master Declaration "), shall automatically become a
member of the owners' association created pursuant to the Master Declaration (the "Master
it
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Association "), and shall be governed by the Master Association's articles of incorporation, bylaws, and
rules and regulations from time to time in effect. Purchaser shall review and may object to the Master
Declaration, articles of incorporation, bylaws and rules and regulations as part of its Title Review
identified in Section 4.4 hereof.
Section 5.2 Not Part of Eagle Ranch Commercial Center Association. Purchaser
acknowledges that the Property is not, and will not be, included within the Eagle Ranch Commercial
Center Association ("ERCCA"). Purchaser's development plan will include all parking required for its
proposed Development on the Property.
Section 5.3 Entry Limitations. Prior to taking title to the Property, Purchaser, its authorized
agents, employees and independent contractors, shall have the right to enter the site for the purpose of
investigation, inspection, tests and surveys. Such entry by or on behalf of Purchaser shall be subject to
reasonable rules, regulations, standards and conditions as may be imposed by Seller. All such
investigations, tests and surveys shall be at the sole cost and expense of Purchaser and shall not damage,
destroy or harm the Property or any improvements thereon, and Purchaser shall promptly repair and
restore the Property to its original condition at Purchaser's sole cost and expense.
Section 5.4 Mechanic's Lien Indemnification. In all cases, and to the extent permitted by
law, Purchaser shall defend, indemnify and hold harmless Seller from and against all costs, expenses,
liabilities and damages (including reasonable attorneys' fees and expenses of litigation) incurred by
Seller as a result of Purchaser's activities, including without limitation the filing or assertion of a
mechanic's or materialmen's lien against the Property or any part thereof, as a result of (a) Purchaser's
entry upon the Property, (b) Purchaser's investigation, inspection, tests or surveys, (c) work performed
through or under Purchaser, or (d) the preparation of any Development plans.
Purchaser agrees not to permit or suffer and, to the extent so permitted or suffered, shall cause,
within forty-five (45) days following the date of filing, to be removed and released, any such lien on
account of supplies, machinery, tools, equipment, labor or materials furnished or used in connection with
the planning, design, inspection, or surveying of the Property, or preparation of plans with respect thereto
through or under Purchaser. This obligation shall survive termination of this Agreement. In the event
Purchaser's activities result in any lien statement being filed against the Property or any portion thereof,
then, upon written notice from Seller to Purchaser, Purchaser shall within forty-five (45) days thereafter
cause such lien to be released or "bonded over" by the Title Company or by court order. Purchaser's
obligations to release or bond over a lien statement shall be performed regardless of the validity of the
actual claims made that gave rise to the lien statement. Further, in the event the Property is not timely
released and discharged from the lien as provided in this Section above, Seller may, at its option and at
Purchaser's cost and expense, with the assistance of attorneys of Seller's choosing, enter into, defend,
prosecute or pursue any effort or action (whether or not litigation is involved) which Seller deems
reasonably necessary to defend itself and the Property owned by Seller from and against all claims or
liability arising by, through or under Purchaser as set forth herein.
Section 5.5 Covenants, Representations and Warranties of Purchaser.
5.5.1 No Representation Made. Purchaser acknowledges that neither Seller nor
anyone acting for or on behalf of Seller has made any warranty or promise to Purchaser, except as
expressly provided in this Agreement, concerning the following: the physical aspects and condition of
the Property; the feasibility, desirability or convertibility of the Property into any particular use, or the
projected market for, income from or expenses of the Development. Purchaser acknowledges that, in
entering into this Agreement, Purchaser has not relied on any representation, statement or warranty of
Seller, or anyone acting for or on behalf of Seller, other than as expressly contained in this Agreement,
and that all matters concerning the Property and the Development are to be independently verified by
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Purchaser. Purchaser acknowledges that it is purchasing the Property in an AS IS physical condition and
in an AS IS state of repair subject to Purchaser's rights under this Agreement to conduct title review and
due diligence inspections. Purchaser hereby waives, and Seller hereby disclaims, all warranties of any
type or kind whatsoever with respect to the Property (except as contained in this Agreement or the Deed
conveying the Property), express or implied, including, by way of description, but not limitation, those of
fitness for a particular purpose, tenantability, habitability and use.
5.5.2 Interest in Amenities. Purchaser acknowledges that the Property is part of
the master community known as Eagle Ranch, and ownership of the Property will provide the benefits of
ownership within Eagle Ranch. Except as provided by ownership of property in Eagle Ranch or as
specifically set forth in this Agreement, Purchaser further acknowledges that no interest in any amenity
located near the proposed Development, such as swimming pools, spas, golf facilities, or the like, shall be
conveyed to Purchaser pursuant to this Agreement. The owners of those facilities shall have the right, in
their sole discretion, to remove, relocate, discontinue operation of, restrict access to, charge fees for the
use of, sell interests in or otherwise deal with such assets in their sole discretion without regard to any
prior use of or benefit to Purchaser.
5.5.3 Other Developments. Purchaser acknowledges that other properties owned
by Seller that are subject to the Planned Unit Development Guidelines for Eagle Ranch (such properties
collectively, "Eagle Ranch "), recorded April 12, 1999, at Reception No. 692230, in the records of the
Clerk and Recorder of Eagle County as amended and supplemented from time to time (the "Eagle Ranch
PUD ") may be developed pursuant to the land uses and restrictions set forth in applicable regulations,
including the Eagle Ranch PUD, as is applicable. Seller, and its employees, agents, officers, directors and
affiliates make no representations as to the planned uses of Eagle Ranch other than as stated in the Eagle
Ranch PUD. Further, Purchaser acknowledges that the zoning for Eagle Ranch is established and
governed by the Eagle Ranch PUD. Purchaser agrees to not object to or oppose any development in
Eagle Ranch Village so long as same shall comply with the Eagle Ranch PUD and not contain any use
that unreasonably conflicts with Purchaser's use of the Property for the Facility.
5.5.4 No Investment Representations. Purchaser acknowledges that neither Seller
nor any of its agents or employees has made any warranties or representations upon which Purchaser has
relied concerning the investment value, the possibility or probability of profit or loss, or the tax
consequences which may result from the purchase of the Property.
5.5.5 Incomplete Development. Purchaser acknowledges and recognizes that,
because Purchaser will be purchasing the Property during a period in which substantial construction is or
will be occurring in the vicinity of the Property and that improvements to the Property may be completed
prior to the completion of those for other adjacent properties, there may be certain inconveniences until
construction is completed such as noise, dust, traffic delays and other attendant inconveniences.
Purchaser waives all claims it may have in connection with the foregoing. Purchaser agrees that if
Purchaser, Purchaser's employees, contractors, agents, or invitees enter onto any area of construction,
they do so at their own risk, and neither Seller, nor Seller's contractors, agents or employees shall be
liable for any resulting damage, loss or injury to such persons.
5.5.6 Subdivision Improvements. Purchaser shall be solely responsible, at its sole
cost and expense, for any off -site or subdivision improvements required to obtain approval of the PUD
Amendment or the Development plan approval from the Town of Eagle with all conditions of approval
being acceptable to Purchaser in its sole discretion. Upon commencement by Purchaser of construction of
improvements on the Property, Purchaser agrees to use Purchaser's best efforts to avoid altering or
causing damage to any subdivision improvements, which include, but are not limited to, paved streets,
sidewalks, curbs and drainage, water distribution system, utilities, landscaping and entry features, if any,
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during any construction by Purchaser on the Property. Purchaser shall repair any damage to subdivision
or off -site improvements caused solely by its construction activities on the Property.
5.5.7 Binding Obligations; Violations. This Agreement and all documents
required hereby to be executed by Purchaser are and will be valid, legally binding obligations of and
enforceable against Purchaser in accordance with their terms. To Purchaser's knowledge, neither the
execution of this Agreement nor the consummation of the transaction contemplated hereby will be in
violation of any judgment, order, permit, writ, injunction or decree of any court, commission, bureau or
agency to which Purchaser is subject or by which Purchaser is bound, or constitute a breach or default
under any agreement or other obligation to which Purchaser is a party or is otherwise bound.
5.5.8 Compliance With Laws. Purchaser hereby represents and warrants to Seller
that Purchaser shall comply with all state, federal and local laws and regulations in connection with the
purchase.
5.5.9 Effective Date; Survival. The foregoing representations and warranties of
Purchaser will be continuing and will be deemed remade by Purchaser as of the date of Closing with the
same force and effect as if made at and as of that time. All of the foregoing representations and
warranties of Purchaser will survive Closing and will not be deemed merged into any instrument of
conveyance delivered at Closing.
Section 5.6 Covenants, Representations and Warranties of Seller. Seller hereby covenants,
represents and warrants to Purchaser as follows, which covenants, representations and warranties shall
be deemed made by Seller to Purchaser also as of the Closing:
5.6.1 Authority. This Agreement and all other documents delivered by Seller to
Purchaser have been or will be duly authorized and executed and delivered by Seller, and, to Seller's
Knowledge, are legal, valid and binding obligations of Seller and, with respect to those documents that
are instruments of conveyance, are sufficient to convey title, and are enforceable in accordance with their
respective terms and do not violate any provisions of any agreement to which Seller is a party. To
Seller's Knowledge, Seller is the sole owner of the Property and no other person has any ownership rights
therein, and the joinder of no other persons (or the execution by any person other than the person
executing this Agreement) is required to make the terms hereof fully binding on and enforceable against
Seller.
5.6.2 Litigation. To Seller's Knowledge, there is no order, notice, charge, claim,
litigation (civil or criminal), proceeding (including bankruptcy) or investigation, pending or threatened,
against the Seller that affects the Property. To Seller's Knowledge, neither the execution of this
Agreement nor the consummation of the transaction contemplated hereby will be in violation of any
judgment, order, permit, writ, injunction or decree of any court, commission, bureau or agency to which
Seller is subject or by which Seller is bound, or constitute a breach or default under any agreement or
other obligation to which Seller is a party or is otherwise bound.
5.6.3 Flood Plain. To Seller's Knowledge, the Property is not located in any
designated one hundred year flood plain.
5.6.4 Environmental. To Seller's Knowledge, no hazardous substance or toxic
waste exists nor has been generated, treated, stored, used, disposed of, deposited, or transported, in, on, or
across the Property, and that there are no underground storage tanks located on the Property.
5.6.5 Compliance with Laws. Seller and the Property are in compliance with all
federal, state and local laws, regulations and requirements applicable to the Property.
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5.6.6 Effective Date and Changes. All of the foregoing representations and
warranties made by Seller are made as of the Effective Date of this Agreement. Between the Effective
Date of this Agreement and Closing, Seller will have the right to deliver to Purchaser supplemental
statements indicating any changes to the foregoing representations and warranties that Seller has
discovered. Purchaser will have a period of five (5) business days from and after receipt of any such
supplemental statement (or, if the date of Closing is less than five (5) business days from the day on
which Purchaser receives any such supplemental statement, the period from Purchaser's receipt until
Closing) to notify Seller in writing of Purchaser's election to terminate this Agreement whereupon the
Deposit will be returned to Purchaser and both parties will be relieved of any further obligations
hereunder, except for those obligations which expressly survive any termination hereof.
5.6.7 Survival. All of the foregoing representations and warranties of Seller will
survive Closing and will not be deemed merged into any instrument of conveyance delivered at Closing.
ARTICLE 6
CLOSING; CONDITIONS PRECEDENT
Section 6.1 Closing. The Closing shall occur on December 31, 2012; provided, however,
that Purchaser shall have the right to extend the Closing to April 15, 2013, upon written notice to Seller
at least delivered no later than December 20, 2012, and conditioned upon payment of the third
installment of the Deposit as required by Section 3.2 above; and provided, further, however, that
Purchaser may elect to close upon the purchase and sale at an earlier date upon written notice to Seller
given not less than ten (10) days prior to such earlier Closing date, and upon the giving of such notice the
Closing date shall be the date elected by Purchaser in such notice.
Section 6.2 Place of Closing. The Closing shall be held in the office of the Title Company
or at such other location and at such time as the parties may mutually designate.
Section 6.3 Purchaser's Closing Costs. Purchaser shall pay the following at the Closing:
6.3.1 All recording and documentary fees applicable to the Closing and transfer of
title, except those related to the release of any deeds of trust or mortgages given by Seller.
6.3.2 The working capital reserve required by the Master Declaration (if any),
which working capital reserve shall be payable for the Property at Closing.
6.3.3 One -half of the Closing fees, if any, charged by the Title Company.
6.3.4 If it is necessary to deliver any Closing documents to or on behalf of
Purchaser outside of Eagle County, Colorado, all costs incurred by Seller or Seller's agent in delivering
said items, including, without limitation, the costs of any courier service or postage.
6.3.5 One -half of the transfer assessment imposed by the Eagle Ranch Declaration
upon the transfer of the Property, which is equal to one percent (1 %) of the Purchase Price.
6.3.6 Such other charges customarily paid by the purchaser in a real estate
transaction in Eagle County, Colorado.
Section 6.4 Seller's Closing Costs. Seller shall pay the following at the Closing:
6.4.1 The premium for the owner's title policy issued pursuant to the Title
Insurance Commitment.
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6.4.2 One -half of the Closing fees, if any, charged by the Title Company.
6.4.3 One -half of the transfer assessment imposed by the Eagle Ranch Declaration
upon the transfer of the Property, which is equal to one percent (1 %) of the Purchase Price.
6.4.4 Such other charges customarily paid by the seller in a real estate transaction
in Eagle County, Colorado.
Section 6.5 Prorations. Real property taxes and assessments for the Property, based upon
the most current assessments and levy, all assessments imposed on the Property by any governmental,
quasi - governmental or other entity, and association assessments, if any, shall be apportioned to the
Closing. All prorations shall be in accordance with this Section and shall be considered final at Closing.
Section 6.6 Delivery of Possession. Seller shall deliver possession of the Property to
Purchaser at the Closing. Possession of the Property shall remain exclusively with Seller until the
Closing, and Purchaser shall not have the right to take possession or occupancy of any of the Property or
to perform or cause to be performed any custom or other work on the Property prior to the Closing
except as expressly provided by this Agreement.
Section 6.7 Delivery of Closing Documents by Seller. At the Closing, Seller shall deliver
the following documents to the Title Company:
6.7.1 A Special Warranty Deed conveying the Property to Purchaser;
6.7.2 A certificate that Seller is not a nonresident alien, as defined in the Internal
Revenue Code and Treasury Regulations promulgated thereunder, in accordance with Section 1445 of the
Treasury Regulations, or such other certificate or document necessary to comply with Section 1445 of the
Internal Revenue Code and such documents as are required to comply with Colorado law with respect to
withholding from a nonresident seller; and
6.7.3 Such additional instruments and documents as may be reasonably required
by Purchaser or the Title Company in connection with the consummation of the transaction contemplated
hereby.
Section 6.8 Delivery of Closing Documents and Funds by Purchaser. At the Closing,
Purchaser shall deliver the following to the Title Company:
6.8.1 The Purchase Price in immediately available funds;
6.8.2 All of Purchaser's closing costs as set forth in Section 6.5 above;
6.8.3 Such additional instruments and documents as may be reasonably required
by Seller or the Title Company in connection with the consummation of the transaction contemplated
hereby.
Section 6.9 Reporting of Transaction. The Title Company shall prepare and file, promptly
after the Closing contemplated by this Agreement, the required forms with the Internal Revenue Service
pursuant to Section 6045(e)(2) of the Internal Revenue Code, as amended.
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ARTICLE 7
POST - CLOSING OBLIGATIONS
Section 7.1 Freestone Road and Sidewalk. The Property is subject to that certain Cost
Sharing Agreement dated July 24, 2008, by and among Sylvan Square, LLC, Eagle Ranch Village, LLC
and the Eagle Ranch Commercial Center Association ( "ERCCA "), which was recorded in the real
property records of Eagle County, Colorado on July 25, 2008 at Reception No. 200815672 (the "Cost
Sharing Agreement "). Capitalized terms used in this Section 7.1 that are not defined in this Agreement
have the meanings given those terms in the Cost Sharing Agreement. Purchaser agrees that if, and at
such time as, it proceeds with the Development on the Property, Purchaser will plat the remainder of
Freestone Road and the Sidewalk and construct same as required by the Town. If and when Purchaser
constructs Freestone Road, Purchaser shall convey the platted tract within which it is constructed to
ERCCA, which agreement may be enforced by Seller through an action in specific performance.
Further, Purchaser acknowledges that it shall be subject to the terms and conditions of the Cost Sharing
Agreement. Notwithstanding the foregoing, Purchaser shall have an opportunity to review the Cost
Sharing Agreement during the Due Diligence Period as set forth in Section 2.1.1. Purchaser
acknowledges that any portion of the Development on the Property that is not a separate residential unit
will need to be characterized under the Cost Sharing Agreement. Allocation as either residential or
commercial space will impact the cost sharing ratios under the Cost Sharing Agreement.
Section 7.2 Other than as expressly set forth in this Agreement, Seller shall have no rights of
approval concerning the use, operation or development of the Property or of other or different plans that
may be prepared post- closing. Purchaser shall be under no obligation to construct the Facility or the
Development on the Property.
Section 7.3 In addition to the re -plat identified in Section 7.1 hereof, Purchaser shall have
the right, but not the obligation, to re -plat the Property after Closing as may be determined necessary by
Purchaser in its sole discretion for phasing or other purposes.
ARTICLE 8
RISK OF LOSS; INSURANCE; CONDEMNATION
Section 8.1 Allocation of Risk. Except as otherwise provided herein, Seller shall bear all
risk of destruction of the Property until Closing. Thereafter, Purchaser shall bear the risk of any
destruction.
Section 8.2 Taking Prior to Closing. If any portion of the Property is taken by the right of,
or is included in any pending action to exercise the right of, eminent domain, prior to Closing, at
Purchaser's option:
8.2.1 This Agreement shall remain in effect, the Closing shall nevertheless occur,
and Purchaser shall thereupon become entitled to the entire award or proceeds received or receivable for
the portion of the Property taken and Seller shall be entitled to any award or proceeds for severance or
other damages relating to other property owned by Seller; or
8.2.2 Purchaser may terminate this Agreement by written notice to Seller, in which
case the Deposit shall be returned to Purchaser and each party shall be relieved of all further obligations
hereunder.
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ARTICLE 9
DEFAULT AND REMEDIES
Section 9.1 Seller's Default.
9.1.1 Failure to Perform Under Agreement. If, due to circumstances other than
Purchaser's failure to perform any term or condition of this Agreement binding on Purchaser, Seller fails
to timely perform any of its obligations under this Agreement, Purchaser shall deliver to Seller written
notice detailing Seller's failure of performance. With respect to monetary defaults, Seller shall have ten
(10) days from receipt of such notice from Purchaser within which to remedy the failure of performance.
With respect to nonmonetary defaults, Seller shall have thirty (30) days from receipt of such notice from
Purchaser within which to remedy the failure of performance, or if such failure of performance cannot be
cured within such thirty (30) days, then Seller shall have a reasonable amount of time under the
circumstances to cure such failure of performance provided Seller commences to cure such failure of
performance within thirty (30) days and diligently prosecutes such cure thereafter.
9.1.2 Purchaser's Remedies. If at the expiration of the curative period Seller has
not cured such failure of payment or performance, Purchaser may elect to (a) declare this Agreement
terminated in which case the Deposit shall be returned to Purchaser, and Seller and Purchaser shall be
released from any further liability under this Agreement, or (b) bring an action against Seller for damages
caused by Seller's default, for specific performance, or both.
Section 9.2 Purchaser's Default.
9.2.1 Failure to Perform Under Agreement. If, due to circumstances other than
Seller's failure to perform any term or condition of this Agreement binding on Seller, Purchaser fails to
timely perform any of its obligations under this Agreement when required by this Agreement, Seller shall
deliver to Purchaser written notice detailing Purchaser's failure of performance. With respect to
monetary defaults (including Purchaser's failure to close), Purchaser shall have ten (10) days from receipt
of such notice from Seller within which to remedy the failure of performance. With respect to
nonmonetary defaults, Purchaser shall have thirty (30) days from receipt of such notice from Seller within
which to remedy the failure of performance, or if such failure of performance cannot be cured within such
thirty (30) days, then Purchaser shall have a reasonable amount of time under the circumstances to cure
such failure of performance, provided Purchaser commences to cure such failure of performance within
thirty (30) days and diligently prosecutes such cure thereafter.
9.2.2 Seller's Remedies. If, at the expiration of such cure periods as set forth
above, Purchaser has not cured any such default, and the Closing has not yet occurred, Seller may elect to
terminate this Agreement and retain the entire Deposit paid by Purchaser pursuant to Section 3.2 above,
all as liquidated damages and not as a penalty, in consideration for administering this Agreement and
taking the Property off the market, it being acknowledged that the actual damages of Seller would be
extremely difficult and impractical to ascertain, and which shall be Seller's sole and exclusive remedy.
Seller expressly waives any and all other remedies in the event of an uncured default by Purchaser before
Closing, including for specific performance and additional damages. Notwithstanding the foregoing, in
the event of any lien being placed against the Property, Seller may, in addition to the foregoing liquidated
damages remedy, pursue all remedies described in Section 5.3 above.
Section 9.3 Effect of Termination. If either party terminates this Agreement as authorized
above, Purchaser shall have no further right, title or interest in or to the Property.
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ARTICLE 10
NOTICES
Section 10.1 Manner of Notice. All notices or demands under this Agreement shall be in
writing and shall be deemed given and received according to the following criteria:
10.1.1 Personal Delivery. In the case of personal delivery, notice shall be deemed
to have been given and received on the day of the actual receipt by the receiving party.
10.1.2 Overnight Courier. In the case of nationally recognized overnight courier
service, notice shall be deemed to have been given and received on the second (2nd) business day
following its deposit with such courier service. No signature affirming receipt by the receiving party is
required. The internal records of the courier service are to be accepted as sufficient evidence of receipt.
10.1.3 Postal Service. In the case of the U.S. Postal Service, notice shall be deemed
to have been given and received on the third (3rd) business day after the deposit of a postage prepaid,
certified return receipt requested, envelope, containing the notice, addressed to the receiving party, with
the U.S. Postal Service.
10.1.4 Facsimile Transmission. In the case of facsimile transmission, notice shall
be deemed to have been given and received on the day of such transmission. Such facsimile transmission,
to be considered effective, shall be corroborated by a copy of the facsimile printout showing the telephone
number from which transmitted, the telephone number to which transmitted, the date and the time of such
transmission.
Section 10.2 Addresses for Notice. All notices shall be given to the respective parties at the
following addresses, until further written notice. Notice must be given to Seller or Purchaser (as the case
may be) to be effective. Parties to whom a copy of such notices are to be given are made a part of this
provision for courtesy purposes only.
If to Seller: Eagle Ranch Village, LLC
126 Riverfront Lane, 6 Floor
Post Office Box 7270
Avon, Colorado 81620
Attention: W.J. Wright
Telephone: (970) 748 -5540
Facsimile: (970) 845 -7205
with a copy to: Gregory Perkins LLC
710 West Lionshead Circle
Suite B
Vail, Colorado 81657
Attention: Greg Perkins, Esq.
Telephone: (970) 306 -7554
Facsimile: (866) 393 -9835
If to Purchaser: Jill Klosterman
Eagle County Housing Director Post Office Box 850
Eagle, CO 81631
Telephone: (970)328 -8773
Facsimile: (970) 328 -8787
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With a copy to: Bryan Treu
County Attorney
Post Office Box 850
Eagle, CO 81631
Telephone: (970) 328 -8695
Facsimile: (970) 328 -8699
ARTICLE 11
MISCELLANEOUS
Section 11.1 Time is of the Essence. Time is of the essence with regard to the performance
of the obligations of Seller and Purchaser under this Agreement. If the date for any such performance
falls on a Saturday, Sunday or banking holiday, the date of performance shall be extended to the next
regular business day.
Section 11.2 Assignment. Purchaser may assign its interest in this Agreement upon advance
written notice to and without requirement of consent of Seller to a governmental, quasi - governmental or
other type of entity formed for the purpose of owning and /or operating the Facility, but assignment to
any other party shall require the prior written consent of Seller. Seller's consent to any other assignment
shall not be unreasonably withheld so long as the assignee entity will own and operate the Facility, but
otherwise may be granted or denied in Seller's sole and absolute discretion. Seller may assign its rights
and obligations to an entity that is an affiliate of Seller. Upon any such assignment by Purchaser or
Seller, the assignee shall be substituted in all respects instead of, and to the exclusion of, Purchaser or
Seller, as applicable, under this Agreement and such party shall be released of any further obligations
hereunder.
Section 11.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit
of Seller and Purchaser and their heirs, personal representatives, successors and permitted assigns.
Section 11.4 Governing Law and Venue. This Agreement has been executed in the State of
Colorado and shall be governed by the laws of the State of Colorado. Venue for any dispute shall be in
the District Court of Eagle County, Colorado.
Section 11.5 No Recording. Purchaser shall not record this Agreement nor any memorandum
of this Agreement. If Purchaser records this Agreement, then, at the option of Seller, this Agreement
shall become null and void, or Purchaser shall be deemed in default of this Agreement.
Section 11.6 Gender and Number. Any term of gender used in this Agreement shall include
all genders and legal entities, and the plural shall include the singular, and the singular shall include the
plural, all as the context may require.
Section 11.7 Severability. The invalidity of any provision of this Agreement shall not affect
the validity or enforceability of any other provision set forth in this Agreement.
Section 11.8 Section Headings. The section headings contained in this Agreement are for the
purposes of identification only and shall not be considered in construing this Agreement.
Section 11.9 Attorneys' Fees and Costs. In the event of any litigation between the parties
concerning this Agreement and the enforcement of this Agreement, the prevailing party shall be awarded
all its costs and expenses relating to such action, including, but not limited to, court costs and reasonable
attorney's fees incurred by the prevailing party at trial and upon appeal. The parties agree that before
commencing any legal action relating to a dispute regarding this Agreement or the Property against the
15
other party, the dispute shall be submitted in good faith to mediation in Eagle County. The parties to the
mediation shall share equally the cost of the mediation and bear their own respective attorney fees. If the
parties cannot agree on a mediator, the mediator shall be selected from the mediators of Judicial Arbiter
Group.
Section 11.10 Brokerage. Each party represents to the other that no brokers have been
involved in this transaction. It is agreed that if any claims for brokerage commissions or fees are made
against Purchaser or Seller, all such claims shall be handled and paid by the party whose actions or
alleged commitments form the basis of such claim.
Section 11.11 Entire Agreement; Modification of Agreement. This Agreement supersedes any
and all prior understandings and agreements between Seller and Purchaser. This Agreement may only
be modified by an agreement in writing and signed by Seller and Purchaser.
Section 11.12 Representation and Evidence of Authority. Purchaser and Seller each represent
to the other that the person executing this Agreement on behalf of such party is duly authorized to
execute this Agreement on behalf of such party. Purchaser and Seller shall provide appropriate
acceptable evidence to the other party at the Closing to verify that such party is authorized to enter into
this Agreement and consummate the transactions contemplated hereby and that the individuals signing
on behalf of such party are authorized to do so. Purchaser shall also provide such other documents
required by the Title Company or required or appropriate to enable Purchaser to hold title to the Property
and to conduct business in the State of Colorado.
Section 11.13 Survival of Provisions. Any provisions of this Agreement which require
observance or performance after the date of Closing shall continue in force and effect following the
Closing Date.
Section 11.14 General Cooperation. Notwithstanding any other provision of this Agreement to
the contrary, and notwithstanding the Closing of the sale of the Property to Purchaser, Purchaser and
Seller agree in good faith before and after such Closing to execute such further or additional documents,
and to take such other actions, as may be reasonably necessary or appropriate to fully carry out the intent
and purpose of the parties as set forth in this Agreement.
Section 11.15 Negotiated Agreement. This Agreement shall not be construed more strictly
against one party than against the other merely by virtue that it may have been prepared by counsel for
one of the parties, it being recognized that both Seller and Purchaser have contributed substantially and
materially to the terms and preparation of this Agreement.
Section 11.16 Counterparts. This Agreement may be executed in counterparts, which, taken
together, shall constitute the agreement of Seller and Purchaser.
Section 11.17 Fax Transmittal. This Agreement, plus any modifications, may be transmitted
by telefax copier or by email attachment. All parties agree that their signatures which are copied on the
transmitted documents shall be binding as if they were original signatures. Each party agrees to fully
execute with original signatures on all original documents following execution of facsimiles transmitted.
[remainder of page intentionally blank; signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
SELLER:
EAGLE RANCH VILLAGE, LLC,
a Delaware limited liability company
By: Mataura Corp., a Delaware corporation
Its: Manager
By:
Willis J. Wright
President
PURCHASER:
EAGLE COUNTY, COLORADO
By and through its Board of County Commissioners
B
Peter Runyon, Chairman --
11)
Attest: 1 � 1 *
Teak Simonton, lerk to the Bo.. `, mod
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