HomeMy WebLinkAboutC02-223 Berry Creek LLCS•a
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LAND LEASE .A►NI3 OPTION MYREEMII T
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This LAND LEASE AND OPTION AGREAWN ' (`� ") is Made and
executed effective as of the day o 2002; by and
between EAGLE COUNTY COLORADO, a body co ate* and, politic organized: and
existing pursuant -to the .laws of the State of Colorado and BMRY CREED
�' WBLTTY CO., a Colorado Umited liability company-(`�►e____ssee'�.
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A. The County is the owner of that ce ahi deal property desc -bed ka P
A attached hereto a *).*
B. The County and the Lessee have entered Ito that . certain Development
Agreement (``Deyelooment Agreement') of even date herewith; pursuant to which the
i Lessee is to develop the Pxopexty into a single axed multi -family housing development
project with purchase paces that are iuntended to be affordable to curtain income levels of
residents within the local community
C. The County desixes to euter Jnto "th10 ]'✓ease for the purpose of leasing the
and to #he. Lessee so diat the lessee an' constct im ove ground =... � . ;. pr naents on, the properly and
sell the residential units as -they M consft..can'
NOW ��EREFORE, in consideration of the foregoing recitals and mutual promises
and covenants contained here n, and for other good.'�and valuable cousideradoz6 the
receipt and sufficiency of which is b�ereby acknow ed ed, the parties do hereby a e *as
_..follows: � ....._ .:r.. �_:.•.:. � Y �
1. Definitions. tin addition to the terms. defuied above, the following terms
j will have the meanings specified below unless the context r0uires otherwise:
(a) " C=k shall' mean the Colorado Common Iintemst Ownership
Act..
(b) "Deed -Restrictions" shall meant those certain restrictions described
in the Development Agreement *hi.ch sh,aia and/or resale price of
certain Units.
(c) "Lender" shall mean any lenderNho is holding a moxItgage, deed
of trust, collateral assignment *or security. interest m the Lease for the purpose of
providing Project Financing.
(d) "Improvemants" shall mean any and all water, sewer and other
utility lines, sidewalks streets, buildings, s'tiuctures and other improvements hereafter
made to the property or affixed to, the Property by the Lessee,
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Id � (e) "option" shall. mean that cextam option to purchase any Unit or
Common Area as more particularly p gvided"for iiu Sicelion 8-hereof.
(f j "Project financing" shall mean any development, cons1 ruction,
bridge or permanent financing or loan for .the purpose. of developing. the Property and/or
constructing -Improvements on the Property- `
(g) "Qualif ed 1juyer" -shall have•.fhe same MeanW.M set. forth in the
Developx�aerrt Agreement. .. '
(h) " Lhui" shall mean any-portion`of the Property or the Improvements
-� thereon that are subdivided or platted for separat ownership as a residential lot,
condominium unit or towrnhome unit.
2. Lease The County hereby demises and leases to the Lessee the
Property in accordance with the provisions of Us Lease.
(a) Term. Tbie- lease term shall coimmence as of the date hereof and
,_shall continue, unless sooner, to mabriated as; '.snore fully provided herein,
':fln.'f�irtu�l��yl 31 , 20-X2* ("Lease Term').
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(b) ent. The rent for the entire Lease Term- shall be $10.00. County
hereby acknowledges receipt of: the rmt f6 r the entire. Lease .Terns.
- 3. Improvements. and Development Nab.` • The Lessee shall develop- and
improve Property and construct Improvements thereon subject to the following:
(a) Development Ame- meet. • The- Lessee shall have the right to
develop and improve the Property and to install Improvements thereon in accoirdance
with and subject to the terms, conditions and provisions of the Development ,A►greement.
All altemtlotns, additions or Improvements to the Property shall 'be donne at the sole cost
and expense of the Lessee.
(b) ownershi.- •' . As - between the. Lessee and the County, all of the
Improvements installed on the Property shall .remain the sole property of the Lessee
provided that, upon termination or expiiration of the Lease Term, Lessee's remainig title
to any Improvements shall automatically vest in the County, subject to the liens, if any,
for Project Financing.
(c) Subdivision. Cot%ty acknowledges that Lessee intends to
subdivide the Property- and the Improvdnients to* be•'construeted by the Lessee on the
Property. Lessee may do so by forming leasehold condominium regimes as described in
CCIOA. In addition, the Lessee may propose to subdivide the fee interest owned by the
County into separate, single family lots. County agrees to cooperate 'and assist the Lessee
in connection with such requests, provided that the request complies with all terms,
conditions and provisions of the Development Agreement. County agrees it will execute
cMuerbach SouthwestSerry Creek\LAND LEASE2-7,01•doc: 2
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and .subordinate this Le&oo to all subdivision plats;. dec_ larations of covenants, condition
and -restrictions, subdivision improvement agreements -and such other agreements- as aye
customary in the industr�r for developing and ;subdividing such real properly Located in
the County.
(d) po 'n .• Nor to the comm encemi nt of any work on the Property..
Lessee shall. notify the County oo. its intention to commence work. The County miy, but.
#all.'not be obliga ed to--Ovail itself of the provision of C.R.S.. § 3$ 2•Z-105.. The CountX;.
.reserves the right to entellhe Property to post and keepposted notices• described in such-�-
statute. County shall have no obligation to- post the Property and shall not be subject to
any liability or defense four failing to do so. _
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(e) Maintenance of hW ovements. Once any Improvements have been
constructed on the Property, Lessee shall. maintain or cause a homeowners association to
maintain, the Improvements in reasonably good condition, except -for usual and ordinary
wear and tear. All such maintenance and/ox;�repair shall be done atAhe Lessee's sole cost
and expense. County shall have no obfiia;Ooia to :repair, 'maintain, alter or modify the
Property or any Improvements.
{f) Dexn_olitioi�. No. structure- once constructed shall be demolished,
_ ,.
nor shall the exterior. of �ay strachme �� altered= in an�r way that materially affects the
extex�or. appeal otca o f such structure, except i n accoX' gtce With the terms, pxov�s>lous and
conditions of the Developir�tout A'reMe4 ,
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(g)echaxucs Liens. Lessea stall: keep the Property free and clear of
any and all mechanic liens a#sing . out 'of or in . connection with work or labor done,
semcesuperformed or materials supplied or furnished'Mi eonnecdoiot with any of the *work
perforw6d by the Lessee or any alterations,, no nprovement or repair of the Property done at
the'Lessee's request.. The Lessee.shall p�rvxirptly sniff' fu y.pay'andAischarge any and all
liens that maybe recoxded against the fee iiittetest o>F #bie Piro rovided, however that
the Lessee desires to dispute the validity .of the lien. or. the amount of. any such hen, it
inalprovide the County With notice of ita iniention;'i ra�o'so with 3a days ayfter lessee
first discovered that a lien has been recorded the teak property records of Bagle. County.
In .that case, the Lessee shall diligently.'and continuously contest the validity: and/or
amount of the Uen. If . a court . should. entez an order authorizing a sale of the Prroperty
pursuant'to the lien, the Lessee -shall i1nme"diately post a:gvvd and sufficient• surety bond
with the court sufficient'to obtaijm--an 6rd6k dischargin 'the lien froin the Property. Lessee
shall indemnify the County against any' Ioss, e�pense 'or damage resulting from any
mechanics liens recorded against the Property as a result of any work performed by or at
the request of the Lessee.
4. Insurance/Cas� During the Lease Term, Lessee shall maintain the
insurance in accordance with the following:
(a) Liability Insr ante. Lessee shall .at all times carry and maintain
commercial general liability insurance Du an on-:occuirrenee basis, with a xx�nauxn
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combined single limit of.S1,000,000'�dth.excess liability coverage limits of not less than
$59000,000; -and automobile - liability insurance fox all orvmed, hired and non -owned
automobiles owned. or operated • by the ,,lessee providing the minimum combined single
:.dlimit of $ t,000,000.
(b) Worker's Co npensation Insurance. During any period ix:. wbuich
construction work is. being -performed, Lessee- or. its general contractor shall carry or
cause- to be maintained worker's compensation insurance as required by the state 'oaf •�:. l
•�' Colorado in an amount that may be required by applicable. statutes.
(c) Provorty hisurance. -Lessee, sh4loarty=and maintain, or cause to be
maintained, all-risk property insurance for the full replacement value of all Improvements
to the fullest extent such.insurance is available; provided that during any period in which
any construction is being performed, the property insurance may be provided by the
general contractor's builder's risk insurance.
(d) General surance Pivvaisxocis: for to' comuootexncamnent of any .work
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on the Property,- Lessee shall prAYide to the Counti'iiritten evidence of such insurance.
Any insurer writing any of the Lessee's insurance shiall'have an A.M. Best rating of not
less than an ,A,-VQ. All policies shall' contain -endorsements Ahat the in=' -ear shall give the
County at least 30 days advance written notice. of any change, cancellation, .termination
or lapse of insurance. All of the Lessee's iunsu =ce policies, : endorsements and
certificates will be on forms and with deductibles' hnd self -insured. retention,- if any,
onably acceptable to the County. Notwaihstanding anytbuing contained in this Lease to
the ?bntxary,. the County and Lessee waive any and -all rights of recovery, claim, action or
causes of action against the other and their respectiye W` aiptagmi . principals., partners,
officers,, directors, agents and employees for any lost` ,or ci`aaiage that may occur to either
the County or the Lessee. ox any party. claimit by, tburoug i or under- either one of them,
as the case may be, with respect to the Property, or "airy Ix aprovenients, oar . any contents
thereof, - including any and all nights of recovery, claim, actions or- -causes of action
arising out of or based upon. negligence "of*either of the-paorties to this Lease, wbich loss or
damage is (or would have been insured had the insuxax ice. required under this Lease been
carried) covered by ikasurance:
(e) Damage. If all or* any part of the Improvements are'
damaged by fire or other casualty, Lessee shall iaoauaaegdiately notify County In writing:
Lessee shall, to the extent insurance proceeds are made available, restore, rebuild or
repair any Improvements damaged by such casualty. Lessee shall have the sole night to
adjust and settle -any claims for insurance. - Lessee -shall- not be liable for any loss or
damage to any of the Improvements that are not covered by insurance.
5. Representations and Wnx7rauties,
(a) County Warranties. County hereby warrants and represents to the
Lessee as follows: -
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(i) The County id the owner of the fea simple estate of the
Property free and clear of all lielas, :encumbrances, covenants, conditions, - restrictio' ns,
reservations and agreements, except those .: specifically described in Exhibit R attached
hereto.
(ii) The County' -is authorized* by the laws. of the State of
Colorado to enter into the transaction contemplated by this Lease and to canny out its
obligations hereunder and has duly - autho&ad the, execution and delivery of this .Lease
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and other documents related to this transaction. 11.s lease, and the County s execution
and per 'onnance of this Lease, have been approved'by a final resolution of -the Board of
County Commissioners.
(iii) Neither the ekecutiori; ieliveryor-.perfoxxnanee of the teams
and conditions of this Lease, uor the coi nummatiam of the transactions contemplated
hereby, conflicts with or results in the breach of airy teams, conditions or provisions of
reMriction or agreement or instrurneat to which the County is now a party, to which
`t& ounty is bound, or to which the Property is bound.
Div) There is no litigation -or - proceeding pending, or to the
�. la►owledge of the County, threatened against the County. or against the Property affecting
the might his Jlease or* ability of the County to (ally comply the County to execute t
with its obligations contained herein. a
(v) This Lease constitutes a legal, valid and binding obligation
of the County in force and is enforceable in accordance with its tenants:
(b) .,Lessee &paresentations. The Lessee warrants and represents to the .
IN
County the following'
(i) Lessee
'is a Cv�lvjado• liimited liability company duly
authorized and validly existing under the laws.of the State of Colorado.
(ii) The Lessee is authorized by its Articles of Organization, its
operating Agreement and the laws of the State of Colorado to enter into the transactions.
- :•contemplated by this. agreement and to carry out its_ obligations hereunder and has duly
prized the execution and delivery of dais Lease. ^
(iii) Mither the execution, -delivery or performance of the terrors
and conditions -of this Lease, nor the consummation- of the transactions contemplated
•�"9 hereby, constitutes or results in a breach of any term;. condition or provision of any
restriction or agreement or instrument to which the Lessee is now a party or to which the
-Lessee is bound.
(iv) This Lease constitutes the legal,valid, binding obligation of
the Lessee in force and is enforceable in accordance with its terms.
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6. Condemnation. Jnthe event that -all or any part of the Pwpeity is
condemned for any -public, quasi -public or private use by : any eminent domain-
.
-proceedings, then the Lessee shall have: the right, -but riot -the obligation, to terminate this
Lease as to the balance of tbie prroperty. Lessee shall have the right to enter an appearance
and contest the validity and amount of any such'enera�i�nent . domain proceeding. ,A11-
compensation awarded for the -fee title and any unprovemehfs or for the use of the
T operty shall be allocated as follows:
-�. i(a) the value of fee ;interest � ri :tJr
bi Prroperty, in its unimproved
cony ition at the co encemertt-of this Lease, as subject'to this Lease to the County and;
(b) the value of the leasehold estate and ' the improvements, to the -
.6». Lessee.
7. Covenant of Quiet Enioy_m, t: Subject to the teams of this Lease, the
Lessee shall,. and may peaeefuUy, hold and enjoy the 1 amperty without hindrance from the
County or anyperson clans ring by, tbrrough, or under the County.
8. Purchase Oytiori:" Couottjr hereby; g�ants: to .the Lessee the option. to
purchase -all or any portion of the Prop.eirty subj eci t� .tie tens and provisions of this
section:
(a) Conditionsto. Exercise. The..option may be exercised by. the
Lessee. at, -any time in any Aumber of times during- the.term of this Lease subject to the
Lessee's fulfillment of the following comditions pr�eced ag:
(i) Lessee shall provide ' to the County written notice of its
` :;ies�ire to exercise the option describing that portion of the Property to which it desires to .
x fcise the option, together with a legal description of the same.
(ii) The Lessee may only exe incise the option with respect to (i)
a Unit or Units in their entirety and not, less thax any Unit and _ (H) any parcel that is
platted as a common area in any common interest cotnmuruity ("Common Area'.
(W) There shall not exist at tie `ome of exercise, or at the time
of closing, any Event of Default.
(iv) The Unit(s) for which the option is being exercised shall be
subject to a bonafide contract for the sale of the Unit(s) to a Qualified Buyer(s), with
closing(s) scheduled within -90 days of .the date of thy- exercise of the option and any
Common ,Area for which the option is being exercised shall be conveyed to a
homeowners associad-on t'ormedafor the purpose of maintaining the Common Area for the
benefit of the Qualified Buyers.
(b) County's Obligations Upon Receipt Of ,A, Notice Of Exercise, The
County shall use reasonable efforts to review each notice of exercise and to respond to
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- • ,the notice within` 5 • business • days.. A closing for the purchase and sale of ea6h Unit
erect to. a notice of exercise shall be scheduled at . a- date mutually agreed upoii by the
Lessee and the Counity manager, but .i n. no event mote, than 10 business days after the
notice of exercise.
(c) Deliveries at Closing. At the -closing of the sale of each UWt; the
Colwty shall execute and deliver to -the Lessee (i) a .general warranty deed wamntiag title
to be Uuit/Cornzon - Area, excluding - any Improvements installed- by Lessee, l e and
clear of all liens;: encumbrances.,easements, restrictions and- agreements adsM` g by,
through or under the County, except those consented to or created at the request: of the
Lessee (ii)-a partial release of the Un it/Common Area from. the provisions- of this Lease,
and (iii) any other documents customarily executed by a Seller. The Lessee shall • deliver
to the County the Lessee's purchase price. of each Unit/Parcel of Conunon Area, which
shall be equal to tern dollars for every Unit/parcel of Common Area so purchased. The
Lessee shall pay costs of aff— itle insurance prmuuiu=s, -recording fees, and-. other
customary costs and charges of the closing. In the event that any real properly taxes are
assessed agauist any Unit, the 'Lessee shall take •tlse 'propexty subject to such taxes or
proration thereof and the County shall bear no rmpons bilitj for the payment of any such
tax. The County shall obtain an exemptiotf for any .txamgear *tax or shall otherwise pay any
,transfer tax attributable to recording of .the deed.- The elosing shall be held and delivery of
':al .items shall be made at each closing. accordi ng to ;.tiie.tern�s of this agreement at such
To"'caXon as the parties may niutitally. agree'.'
A Conditioin of hmp- V. County - makes no representation or
warranty of any ldnd or character,,. whether express or implied, oral or written" with -
respect to (i) the value, nature, quality or condition of any Unit/Common Area, MY the
suitability of any Unit/Common Area for any use contemplated thereby, (iu) the
compliance of any Unit/Common Area with any laws; rules, regulations or ordinances of
any applicable government body, or (iv) the Unit's/Commom Area's habitability,
merchantability, marketability," profitability or RitR s . for a particular purpose:. The
Units/Common Areas shall - be sold in their. AS. IS : condition - existing on the date of
closing.
9. Asssii ment and SublNo portion of this Lease or Lessee's right of
possession shall be assigned of sublet by the Lessee Ny tbout the prior written consent of
the County, provided, howeveir, that nothing in this' 'sectiont shall limit or restrict the
Lessee's ability to (i) encumber of as*90 its intereif ini -this Lease as provided in Section
10 and any such encumbrance or'ansubsequent transfer of the Lessee's interest in this
Lease as a result -of an exercise of the remedies available to a Lender shall not require the
.jonsent of the County, or (ii) assign this Lease to any entity that is a permissible assignee
Mine Development Agreement if assigned in conjunction with an assignment of the •
Development Agreement. Lessee, and its permitted successors, shall only be liable under
the Lease for the period of its ownership of the leasehold estate.
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10. Profect Fiva- T,.4:; Lessee •.shall be entitled to obtain ' Project
Finaoivag and to' assign its. iiatetest in� thin. Lease, Withoutthe prior consent of the County,:
subject to the following terms and provisibnx
(a) C-grant o f Iaiem.' Immediately upon granting* ant deed of trust
collateral assignment or. other security interest in this tease, Lessee shall'piovide to the
Coumtra copy of any deed of trust, assignment, or other security documents evidencing
such -lien at seau dty interest
(b) Co -by of Notices .of Default: one County shall deliver to each
Lender any demand or notice, including, without: limitation any notice of an Event of
Default, required to be sent by the County to the, Lessee under this Lease. The County
` sha11Iransmit copy of such demand or notice to' each Lender at the last address 'of such
e ver, shown iri the records of the County. -All such notices sb►all be given in accordance
v tbt the provisions and in the time provided in the manner specified in section •13(a)
hereof r: .S- •..i
(c) to : Cure Dei'aiift After any Event of Default
under this Lease, the Lender shall have tlie'rigbtt, at its option (but not the obligation), to
cure or. remedy or to coDolrptence to cure or remedy al! such default or Event of Default
.% itban 90 days following the cure period pmm itted'for the Lessee as provided elsewhere
in this Lease. In doing so, the Lender, or a receiver 'appointed by Lender, belay enter the
property and perform any duty, obligation or action required to be taken under this Lease
or as may be necessary to preserve and protect the hnprovements and the collateral given
to secure the Project Financing. The County agreed that so long as the Lender is .
exercising diligent and . eobttanuous efforts to foreplbse and obtain possession of the
Property or to cure any default -evable of being ctir'e'd;::thd the County will not exercise
its remedy to terwinate this Lease (although, it may'"exercige -other remedies). Nothing
contained in this provision dha11 be deemed to permiti_ oX authorize a Lender to undertake
and continue the construction of the Project beyond th6 aitent necessary to conserve or
protect the Project or the . Improv=ents ' in. any manner. inconsistent with the .
- : Development Agreement, unless the Lender has first: obtained the consent of the County..
(d) Lender Not Oblima-ted to Construct. Notwithstanding any other
provision of this Lease, a Lender (inch dbag a Lender or other person or entity who
obtains tittle to any part of the Property or Improvements as a result of foreclosure
proceedings, or deed in lieu thereof, and including any other party who thereafter obtains
title to the Property or such part or through such Lender for such person or entity) sha11
not be obligated -to construct or complete the Improvements, the Project or any part of
theme, or to guarantee such construction or completion. A .Lender and such persons
specified above and their respective successors in interests may, at their option, construct
the Improvements and finish the Project. Lenders "and their successors shall not be
obligated to pay, perform or observe any of the ..'.obligations of Lessee under the
Development Agreement.
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(e) Lendox's Option to Extend Tearna. If a Lender should foreclose on
Lessee's interest in the lease, the Lender shall have- sia option to extend -the tex-m of this
j Lease for an additional ten (10) years. Lender. may elect to do so by tendering written
notice of its election to do so, in- the manner provided hereju, within 190 days of the date
that Leader receives a public trustees deed, or an. assignment of the Lease in lieu of
_- =;f�oxeclosure. Upon the exercise of swch option, to
County agrees to execute an amendment
thxs'�.ease, to recordable fvxx�-, acknowledging the. extended term of the Lease.
W No Modification. County aweand covenants to each Lender
that, once it has received notice of any deed of trudst or emcumbraace to secure Project
Financing, that no amendment, modification; termination or cancellataion, or surrender of
the Property shall be valid or enforceable without the'prior wtten consent of Lender.
(g) No�gear. This Lease shall.not merge into the fee estate, in the
event that the fee and leasehold estates become combined in one person, during the term
of any Project Financing.
(h,) CoumM 's Qption to Cure ortgaLet Default. The County may, at its
option, and without any obligation, cure any defaults under any mortgage securing
.project Financing. Each Lender agrees to provider to the County written notice of any
default under any such mortgage and to permit the County to cure, any such default within
30 days aftek notice of default is given to the:County.
County 'a Option to Pay MdjJ aae Debt. If, alter an Event of
- . Default by the Lessee under this Lease, a Lender `:elects to iexercise sits remedies to-.
I'or ose upon the Property under the loan- documents evidencing the Project Fitancing,
the Lender .sham give County notice of such inteiat O46. The County- shall have,. for a
period of ninety (90) days following- such notice, fib'e* Option of paying the Lender all
amounts evidenced or secu red by its loan documtents and tddaag an. assignment. of the
' promissory notes(s) and mortgage(s) s'eduring Projedt Financing, without recourse or
warranty, upon payment to the Leaderof all principal and interest (at the mom default
rate), reasonable foreclosure expenses actually incurred, and the costs incurred by the
Lender in preserving and protecting the Improvements: The County may exercise such
option by tendering written notice of its intent to exercise the option to the Lender within
such.ninety (90) days. The closing of the assignment shall occur at a date (not more than
twenty (20) days after the County's notice of exercise), time and place (in Eagle County)
as specified by the County in such notice. if the Coignty does not exercise the above
option, then the Lender shall take title to the Prope* for that portion of the Property
encumbered by its mortgage fry and - clear- -of the Development Agreement* and the
Lessee's obligation to sell Units only to Qualified Buyeag subject to Deed Restrictions. In
such event, the term "Qualified Buye ' shall mean any purchaser qualified by Lender or
its successors and the Units may be sold*without Deed Restrictions.
L+ vents of Default/Remedies. Lessee shall be considered to be in default
'athir Lease by the occurrence of any one of the following events ("Event of Default"):
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(a) Lessee's failure to pay- When due all or atty., portion of the gentor
any other monetary sum due hereunder if not paid witban ten days after wxtten notice 'to
•°'`"' Lessee. `
(b) Lessee's failure to (other thaw any monetwy default) comply with
any tem, provision or covenant of this -Lease, if the failure is not t'cured within 60 -days
s after written notice to Lessee and each Linder, if any, however, if Lessee's failure eamot
• reasonably bd cured within 60 days, -Lessee shall be allowed Jidditional time *as is
ressonably necessary to coke the. failwxe so long as Lessee commences the cure and -
Lessee diligently and continnuously pursues a course of action that will cure the failure
and bring the Lessee back into c=pHance. :..:...:°
SE..
(c) The - occurrence of a major Material Event of Default under the
Development, Agreement.
(d) If Lessee becomes insolvent, or files or has filed against it a
__.petition for protection under the United States : B.... cy Code, is dissolved, or is
Upon the occurrence of any Event of Default,. County shalt have the right, without.notiee
or demand, to pursue any remedy at law. or. in ' egiiiy, iacluditng a aright of specific
•�-, performance and/or damages; provided, however, the County shall not have, the right to
terminate Ws Lease based upon any lveitt of Default ientif ed in subparagraph {e) .
above if, at the fte .of Event of Default' Lessee has granted. a deed of txust,. mortgage,
Hem, collateral assignment or securWiri#eiest in-flAs Lease=to secure Project Financing. In
no event sb�all Lessee be liable for-coh equdntial or punitive damages:
12. Countv's Default and Lessee's Remoilies..County shall be considered in
default of this Lease upon County's failure to comply with any tennns, provisions or
covenants of this Lease if such failure is not cured wi kn .30- days - after written. notice of
the County, however, if 'County's failure to comply cannot reasonably be cured within
such 30 days, County shall be awed additional time as is reasonably necessary to cm
such defaults so long as County commences the • cure * within such 30 days, and is
diligently and continuously pur'sui g a course of action that will cure such failure and
bring the. County back into compliance with this Lease. Upon any default, Les$ee shad
have all the rights and remedies at law and equity;. ncluding' a right of - specific
.Performance and/or damages and/or the right to ' terminate this Lease, all of which
re-m— �daies shall be cumulative. in addition, Lessee may eieet-to terminate this Lease if the
County terminates the Development Agreement, provided *that Lessee aanay not elect to
terminate this Lease without the prior consent of any. Lender.
13. .Hazardous Substances.
(a) As used herein, the term "Hazardous Substance?' means any
substance toxic, ignitable, reactive, corrosive that is regulated by any local gover=ent,
State of Colorado, or United States government, including any and all materials or
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substances that. are defined as `hazardous waste' - or' "hazardous substance' p4rmmt to
state, federal or local governmental laws.
(b) ,Lessee shall not cause Qr -peim it any Hazardou's Substance to be
used, stored, generated or disposed of on or in the Property by the Lessee or. Lessee's
contractors, =Vloyees, or invitees M` violation of any ordinances, rules and regulations
or other legal =•requirements govenmg Razardous Substances (`L�) Without llrst
obtaining Landlord's written consent, except�:l'vr any.IIaza7&x - Substances that are
ordinarily and � co�ggmonly used i n the eonstrttctiion and development industry in the
; •ponstruction. and improvemaent of real'property: ff " azardotis Substa�aces are use stored
�eriexated or disposed of by Lessee or Lessee's agents, employees,. contractors - or
invitees oa or an the Property, except as permitted above, Lessee -shall ink, defend
and hold County hartuless from any and all claims, damages) fines, judgments, penalties,
costs, liabilities or losses (including, withoutImitation) any and all sums paid for goo_ d
•� faith settlement of claiM., attorneys fees, consultant sad expert fees (arising during or
after the -Lease term and arising as a result of such- ess
'eontamir�ation-- by Lee. This
indem Afiication includes, without limitation, any aic(d all ' costs incurred because of any
investigation of the site, any cleanup, removal or restoration mandated by a federal, state
or local. agency or political, subdivision. without Diimuitations of the foregoing; if Lessee
causes- or permits the presence of any Hazardou$. Substances at * the Property and.. such
action results is contamination, Lessee .shall prosrlptly.at its sole expe�o�se; take any and
all necessary actions to retwn the Property to the coaadX%'ton existing prior to the presence
of asuch. hazardous. substance on the- Properly. Lessee shall bust obtain County's
any
approval for any such remedial action, which shall:not be unreasonably withhold, delayed
or conditioned_
(c) County hereby warrants tbAt, to the best of its knowledge, there
does not exist any hazardous substance. in, at or, under the property. County shall not
,cause or permit any hazardous substance to be used, stored or generated or disposed.ofo t
. a the Property by the County, its agents, expplQyees, contractors, or invitees, with u
nor written notification, of Lessee. County, at .its, sole cost and expense, shall be
he P
responsible for the removal, abatement and/or remediation of ax�y Pazzardous Substances
now or hereafter located * on or under the Property which were not introduced by
Lessee or Lessee's employees, contractors., or their respective agents or
employees. Tf hazardous Substances are stored, generated or. disposed of on or at the
Property or if the Property becomes contaminated as a result of any actions of County, its
agents, employees, contractors or invitees; Landloid shall indemnify, defend and hold
Lessee harmless from any and all claims, damages, des, judgments,. penalties, costs and
liabilities or. losses (including without limitafiica, any :said Z sums paid forgood firth
settlement of claims, attomeys' fees, consultant and expert fees) axisiug during or after
the Lease Team as a result of such contamination.
l4. Bankruptcy. Behr Creek Limited Liability Co.. was formed specifically
for the Project and hereby covenants to the County and each Lender that it shall not
engage in any business other than the development and sale of the Project. As such, berry
Creek Limited Liability CO.. is a special purpose entity and that it unconditionally and
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Sara J Fisher EaS1e, CO
�._
i
irrevocably waives the right provided wilder the U.S:'Banimiptcy Code-: to reject this
Lease. k the. event that this provision, is unolbrceable, and Berry -Creek Limited
` �;Lxability Co. or a trustee rejects this Lease, the County agrees* to enter into a new lease
w16 the Lender on turns avid provisions �idEnti to`those contained herein.
156 Miscellaneous. '
,. (a) No�1 All notices, - covvnunicatiens, consents, demands and .
other writings in this Leaseprovidedto be given, made or sent, • or which.:may be given, -
made or sent, by either party to the other, shall be deemed to have been• fury given or
made when made in writing (i) if given by hand . d pgvery, *upon delivery, (H) if sent by
Federal Express or some nationally recognized overnight carrier,. upon delivery, or. (iii). if
given by certified' then three business day qfter being deposited in the U.S. Mail,
certified maid, return receipt requested, postage pre.944,* to the address specified below, or
to such other aftess as either party may provide bj wi rktm notice to the other:
' • Baird of Coi�ritjr'�oin�uissioaers
P.O. Box 85Q
__ •o .. ' 500 Broad 7
" Eagle, CO! 81.631
ATTN:
With acop
Y to:
EgAq Coilnty; Attoi0ey '
P.O. 'Box $50 .
500 Broadwa�r `
Eagle,. C0:81.¢54
LESSEE: .
Berry -Creek -Limited Liability ity Co. c/o ASW Realty
-- 21820 Burbank Boulevard, Suite 120
Woodland Hills, CA 91367
Attention: Mark Koss
With a copy to:
A.lah M. Keefe;: Esq.
Bendelow Law Firm; P.C.
1120 S . Linc6k Ave., Suite 203
PO Box 773630.
Steamboat Springs, CO 80477
807106
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s�v -
!V�
.6"
.P,
(b) Construction. The language used in this Lease and all pads hereof
shall be construed as a whole according to the and inary and fair rneanwag of the words
contained herein and shall be liberally construed to accomplish the objectives of the
parties hereto..This Lease shall not be construed strictly for nor apt* any party. All
parties. have participated in. the preparatio& of this Lease- Whenever requiredd-by context,
the singular shag include the plural, the plural the sinilar, and one gender shall include
all genders. ThisLease shaill be governed by and construed in accordance with the -iaws
of the State of Colorado. "OMW
(c) Required Consenk In all cases where the consent or approval of
the . other party is required in this Lease, such consent or approval shall not be
unreasonably withheld, delayed or conditioned.
(d) Relatsonahip of the Parties. Nothing contained in this Lease shall
be deemed or construed as creating a relationship .with the principal and agent or of -a
partne rip or joint venture between the. parties hereto, it being understood and agreed
that neither the method- of computing rent hO r any other-lirovis ors contained herein nor
any of the acts of the parties hereto shall -be deemed to create any relationship between
the parties other than that of landlord and tenant.
(e) ers: County and Lessee each represent to one soother that .
each has not dealt with air broker or ' any other person- who could make a claim fox a
co scion or fee on acco�gp�t -of any alleged broker services or employment M. a broker.
Egch party agrees to indenin* and hold the other ess from any such claiuoo�:
fl P OID1301 Certl .Cate3. County shall, - from time to time, upon not
less thau five (5) business days -prior, written regltest by Lessee,. execute, acknowledge
and deliver to Lessee or to any Lender a. stat ent acknowledging that thus Lease is
unmodified and is in full force and effect -(or if ere have been modifications, that the
same is in full force and effect as modified, stat ig- the -modification), and the date to
wb�ich the rental and other charges have been pa�i3 ik advance, if any, that no Event of
Default has occurred (or if it has specifying the nature of the defau�It) and contaiuou�ag any
•, stateix�e�ats of fact reasonably requested. by �.essee and/or Lender and a certificate
that uoh statements are true, accurate and comp)et : It shall be xewonable for. a Lender to -
request that insurance and condemnation proceeds be applied to. repay Project Financing,
notwitbstanding anything contained in this lease to the contrary. It is intended that any
such statement delivered pursuant to this sectioni ipay be relied upon by any prospective'
assignee or Lender, if requested by the prospective assignee or Lender, the certificate
shall include a non -disturbance agreement. .
(g) Suboiduaation. County hereby agrees that this Lease shall be
subject to a.d subordinate to any mortgage or dee4 of trust now or hereafter placed upon
this Lease or Lessee's interest in this Lease fbo the purpose of securing the Project
Financing and shall agree with any Lender that ? tie . Lender's rights to possession of
Property under this Lease shall not.be disturbed 4s a result .of any Event of Default by
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Sara J Fisher Eagle, CO
V"
I
Lessee so long las the Lender sha11 conl:inue to i bsexve and perform,,,to the best of its
ability,all of the obligations contained in this Le � e. Furthermore, coup aggress to join
� county gSx• J
in and execute any deed of trust or mortgage givFm to secure the Project Financing; and .
the Co*aty's fee interest shall be encumbered by T essee's mortgage.
.o
(h) Arbitration. � If a . dispute ` arises out of or Mates to this Lease
�!{ qudin&-without limitation, any disputes regarding -any consents or approvals required
to be given by any party hereinpr disputes over the m4istence of an Event of Default) or
the breach thereof and if the dispute ea o't be settle through negotiations, the parties
agree ;burst to try it good- faith. to 'settle the dispute by n6n binding mediation ad�oai�auistered
by the mediator mutually selected by the parties prior -.to resorting to binding arbitmdon.
in the event that the parties cannot agree upon a mediator, • the mediation shall be
administered by the American Arbitration', o •iation. If any such dispute cnnot be
d b the aforesaid Mentioned mediatoo � ' e di ute . shall - be settled b binding
resolve y p � Y
arbitration administered by the ,American Arb' 'on Association wader its coraucm=ial
arbitration rules and judgment on the award rMd"d- by the arbiter(s) may be entered in
any court having jurisdiction thereof
t
(i) Force Ma'eme: Time Of rt'h Essence: Whenever a period of time
or specified date is herein parescaed for action to a taken. by elther:PartX there sbtall• be
excluded from the computation of -any. such ei "od of time. or an extension of such
specif ed date, any delay' due to strikes, riots, ac of terroa7isaoat, acts of God (e�ccludi�ag
weather delays reasonably and historically know. t ..,occur, as deed by'a tea (10) year
average of the U.S. Meteorological -Survey data, oar. •similarly and mutually acceptable
data, in the geographical area of the • Property), shQxtages of lab * * or Piaterials. outside of
he: parameters typically fbxmd in. the ge gap 'cal area of the Property, war,' or
. ' P
gove�ntiaental laws, regulations, restrictions r amtv�Catox�ums (except to tba extent waived -
or otherwise not applied to the Project or a Pro city) and unforeseeable delays -caused
the Project lender; Provided; however, th-bothpaxties shall use tbei r best and diligent -
by J ; Pro
efforts to mitigate the effects of such occ>;rences with respect to. the required action;
provided, that reasonable casts relating to sul await gation effoxts shall. be includable as an
to a projects Costs. Subject to f xe going, time is of the essence with
addition the J i 9 g g�
respect to each and every provision of this A eexngnt.
G) AttoxrieYs Fees. In e' evept of 'any legal action concerning the
interpretation or enforcement of this Tease, the party that substantially prevails iu such
litigation or arbitration shall recover all of its costs and expenses, including, without
.limitation, reasonable attorneys fees, from the party that -does not substantially prevail.
(lc) Successors. This Lease is intended to be a perpetual burden and
benefit on the parties hereto and to title to the- Property. The rights and obligations of the
parties shall nut with the laud, shall be binding .upq' n •and inure to the benefit of each and
every successor in in'temt * to the Property: and apy portion thereof: - By acceptance of any
interest in the Property, the parties and their successors' agree to be bound by fts Lease.
807106
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L.aet Onted 3/11102 8:55 AM -
IN WT' SS VIEMnOF, the paWes have executed this Lease to be effective as of the
day and year first written above: i
t
SAG
�.
A�Sfi: cotoaA90 .
neck to the Boafd of
County Commissioners
COUNTY OAEAGLE„ STATE —OF COLORADO
By- and Tbiou$h its
BgAAD OF COUNTY COMWSSIONERS
By:
Michael Gallagher,
`Lessee"
Berry Creek Lftaited Liability Co.
a Colorado 11MIted liability company .
..a By;
Manager
STATE OF COLORADO )
)Ss.
COUNTY OF EA4 3LE )
The foregoing instrument was ack nowled d beforeme this. Z a-E4 day of
20 by 1Vfthael Gallagher, of and on behalf of Eagle County
Board County Commissioners.
Witness my hand and official seal.
My commission expires: �(t Z 1 Zd 0
.0
'I.
t-�N
G:I,A,aerbaeh 3authwest\Beay CrecUAND LEASE24-02.doe $
Last Onted 3/1 t/02 8:55 AM
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• i+
i
sTA1'E.OF C"�� )
COUNTY OF n 16?3 )
a fore instrument was aclmowled ed before vote tWs ✓�� dof
l day
ZO��by =�� 1s5 as Manager of and on. behalf of
�y Perry Cr LimitedUabl ty Co., a Colorado limited Pability cvm*py.
Witaess my had and official seal.
My canzWmion expires:
i Notaxyy Pub 'c...
-
caffaffm
10 Angelo COW*
i
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I •
G-Muerbacb Southwest\a=' y CreeMLAND 1.EASE2.7-02.dec 16
Lastpdnced 3/11/02 8:55 AM
9-,
.k
MIMIT
Legal Description Of Property
Ca
807106
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G-Wierbach southwest\,Betry CTeekV AM. LBASE2.7.02.doc 17
Last printed 3/11/02 8:55 .AM
Sep=12-02 01:27pm From -LAND TITLE PAIL_ 9704764732
T-349 F.04/05 F-595
EXHIBIT "A"
LEGAL D ESCRIPTI O N
Our Order No. VC276437-6
TRACT D, BERRY CREAK / MTLLM RANCH PLANNED UNrr DEVELOP EM' BC STATE TM
PLAT RECORU� 1UNB 250 2002, AT RECEPTION NO: 799649, COUNTY
OF COLROADO.
C RAbZNG AND DRAYNA xt'T EME MT SITUATRD ON 'TRACT C, FOR THE PI7RPOSfi OF CREAT
T RF..CORbI?D
AND MS G-A DRA.TNAGE DETENTION POND ]FOR TRACT D AS SHOWN ONPLA
j-UNS 25, 2002 AT RECEPTION NO.799649.
8071m
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Permitted Exceptions
1
m"
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�., Gc\luerbach Southwestl9ezry Creek\LAND LEASE2-7-02.doc 1$
Last printed- 3/11/02 8,55 AM
Sep-12-02 01:27pm Fram-LAND TITLE VAIN
4.d
8704764T3Z
T-34V f.UZfUU t-UOU
�.d
EXHIBIT "B"
�7�11l�I.1'
Our Order No. VC276437-6
RIGHT OF PROPRIETOR .OF A VEIN OR LODE TO OXTItACT AND REMOVE IBIS ORE
TI3ER8FROM SHOULD TIME SAME BE POUND TO PENETRATE OR INTERSECT THE
mMISES AS RESERVED IN UNITED STATES PATENT RECORDED , IN BOOK 175
AT PAGE 221.
THE EXISTENCE OP THE EASEMENT SHOWN AS ITEM NO.9. SCHEDULE 13-2, WILL
NOT AFFECT OUR ARYL IT'Y' TO ATTACK COLORADO ENDORSE NO. 103.1 TO
OUR MORTGAGEES POLICY WHEN ISSUED.
{ITEM INTENTIONALLY DELETED)
TERMS, CONDITIONS AND PROVISIONS OF PLANNED UNIT DEVELOPMENT RECORDED
M&Wb 220 2002 RECEPTION NO.799801.
(ITEM INTENTIONALLY DELETED)
RIGHT OP WAY EASEMENT AS GRANTED TO K N.ENPAGY, INC. IN INSTRUMENT
RECORDED ApYR 30, 1999, UNDER RECEPTION NO. 694363 AND AS DESCRIBED
ON THE DOCUMENT RECORDED DECEMBER 27, 1999 RECEPTION NO. 718785..
TERMS, CONDITIONS AND -PROVISIONS OF M]LLER RANCH -FERRY CREEK
YNTEAGO�BNTAL ACrREEMENT RECORDED June 03, 1999 AT RECEPTION NO.
698492.
(ITEM INTENTIONALLY DELETED).
TERMS, CONDITIONS AND PROVISIONS OF STIPULATION AS TO OW'NMHIP OF THE
1I0WARD DITCH AND HOWARD DITCH PIRST ENLARGEMENT RECORDED October 11,
1996 IN BOOK 708 AT PAGE 213.
RIGHT Op WAY BASEMENT AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION,
INC. IN INSTRUMENT RECORDED May 19, 1995, IN BOOK 667 AT PAGE 636.
RIGHT Op WAY EASEMENT AS GR.ANT13D TO UPPER EAGLE REGIONAL WATER
807206
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-Sep-12-02 01:27pm From -LAND TITLE VAIL
V(U410414c I_QSfa r•wvrwu r.-YYV
EXHIBIT "B"
�7 T .Our Order No. VC276437-6
AUTjiORffy 1N INSTRUMENT RECORDED May 31, 2000, UNDER RECEPTION NO.
731114.
RIGHT OF WAY BASEMENT AS GRANTED TO BAOLB RIVER WATER AND SANITATION
DYSTRYC'T IN INSTRUMENT RECORDED May 31, 2000, UNDER RECEPTION NO.
731115.
RIGHT OF WAY 1ASEMENT AS GRANTED TO K N FNBRGY, INC., A ICANSAS
CORPORATION IN INSTRUMENT RECORDED July Q51 2001, UNDER RECEPTIQN
NO.761419.
fiASENIP.NTS, CONDITIONS, .COVENANTS, RESTRICTIONS, RESBRVATIONS AND NOTES
PLAT OF BERRY.CREEK-I NMIZR RANCK PLANNED UNITDL'�TBLOPIVIENT
Olq THE
RECORDED JUNE 25, 20M AT RECEPTION N09 799649:
TERMS, CONDITIONS AND PROVISIONS OP HOWARD DITCH P.A.SEMBNT AGREEMENT
RECORDED June 20, 2002 AT RECEPTION NO.799277.
GRAVEL ROAD TRAVERSING SUBJECT PROPERTY AS SHOWN ON THE SURVEY
pgEPARBp -BY PEAK LAND SURVEYING, -iNC., DATED 8114102, JOB NO. 1158:
(I'TEM rNTENTIONALLY DELETED)
BME PATH NOT WnIMG BIKE PATH BASEMENT AS SHOWN ON SURVEY PREPARED
BY pBAK LAND SURVEYING, INC., DATED 8114/02, JOB NO, 1158.
FLOW LINE OP IRRIGATION DITCH TRAVERSING SUBJECT PROPERTY AS SHOW14 ON
SURVEY PREPARED BY PEAK LAND SURVEYING, INC., DATED. 8/14/02, JOB NO.
n58.
DRAINAGE DITCIJ AS SHOWN ON SURVEY PREPARED BY PEAK LAND SURVBMrj,
INC., DATED 8/14/02, JOB NO. 1158.
.................. _......
807106 I,
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