HomeMy WebLinkAboutR02-051 land lease on Berry Creek 5thCommissioner _ moved adoption
of the following Resolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE, STATE OF COLORADO
RESOLUTION NO.2002-
IN RE THE MATTER OF ADOPTING THE FORM AND TERMS OF A LAND
LEASE AND OPTION AGREEMENT FOR THE HOUSING PARCEL ON THE BERRY
CREEK 5TH PROPERTY AND AUTHORIZING THE CHAIRMAN OF THE BOARD
OF COUNTY COMMISSIONERS TO INTO ENTER INTO SUCH AGREEMENT ON
BEHALF OF THE COUNTY
WHEREAS, the Board of County Commissioners of the County of
Eagle, State of Colorado (hereinafter referred to as the "Board ") ,
desires to enter into a Land Lease and Option Agreement for the
housing parcel on the Berry Creek 5th property more fully described
on Exhibit "A." (hereinafter referred to as the "Property "); and
WHEREAS, the Board desires to adopt the Land Lease and Option
Agreement as set forth on the attached Exhibit "B "; and
WHEREAS, the Property is currently in the development review
process which will not be completed until Final Plat approval; and
WHEREAS, Subsequent to Final Plat approval, it will be
necessary for Eagle County and the Eagle County School District to
exchange parcels of land pursuant to their IGA prior to the
execution of this Land Lease and Option Agreement; and
WHEREAS, pursuant to § 3 0 -11-10 7 (1) (aa) , C.R.S., the Board
desires to delegate its power to enter into the Lease Agreement, as
set forth on the attached Exhibit "B," to Michael L. Gallagher,
Chairman of the Board of County Commissioners.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO:
THAT, the Board hereby adopts and approves the Land Lease and
Option Agreement attached hereto as Exhibit "B" and made a part
hereof by this reference.
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THAT, Michael L. Gallagher, Chairman of the Eagle County
Board of County Commissioner is hereby authorized to enter into the
Land Lease and Option Agreement with Berry Creek Limited Liability
Co.;
THAT, the Board finds, determines and declares that this
Resolution is necessary for the public health, safety and welfare
of the citizens of the County of Eagle, State of Colorado.
MOVED, READ AND ADOPTED by the Board of County Commissioners
o the County of Eagle, State of Colorado, thisG4 day of
P J 2002.
o f O c COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its
ATTEST: _ v�i BOARD OF COUNTY COMMISSIONERS
O CORP� O
l ie By.
�,_ C erk to the Board of
County Commissioners
Arn M. Menconi
Commissioner
Tom\J2. Stone
Commissioner
Commissioner 221.'> seconded adoption of the fore-
going resolution. The roll having been called, the vote was as
follows:
Commissioner Gallagher
Commissioner Menconi Tp
Commissioner Stone
This Resolution passed by GC`1>1�;2c�-1 vote of the Board of
County Commissioners of the County of Eagle, State of Colorado.
jks \resolutions \authorization
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LAND LEASE AND OPTION AGREEMENT
This LAND LEASE AND OPTION AGREEMENT ( " Lease ") is made and
executed effective as of the day of , 2002, by and
between EAGLE COUNTY, COLORADO, a body corporate and politic organized and
existing pursuant to the laws of the State of Colorado ( " Count o ") and BERRY CREEK
LIMITED LIABILITY CO., a Colorado limited liability company ("
RECITALS
A. The County is the owner of that certain real property described in Exhibit
A attached hereto ("Proper ' ).
B. The County and the Lessee have entered into that certain Development
Agreement ( " _Development Agreement ") of even date herewith, pursuant to which the
Lessee is to develop the Property into a single and multi - family housing development
project with purchase prices that are intended to be affordable to certain income levels of
residents within the local community ( " Project ").
C. The County desires to enter into this Lease for the purpose of leasing the
ground to the Lessee so that the Lessee can construct improvements on the property and
sell the residential units as they are constructed.
NOW THEREFORE, in consideration of the foregoing recitals and mutual promises and
covenants contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties do hereby agree as follows:
1. Definitions In addition to the terms defined above, the following terms
will have the meanings specified below unless the context requires otherwise:
Act. (a) "CCIOA" shall mean the Colorado Common Interest Ownership
(b) "Deed Restrictions" shall mean those certain restrictions described
in the Development Agreement which shall restrict the occupancy and/or resale price of
certain Units.
(c) "Lender" shall mean any lender who is holding a mortgage, deed of
trust, collateral assignment or security interest in the Lease for the purpose of providing
Project Financing.
(d) "Improvements" shall mean any and all water, sewer and other
utility lines, sidewalks streets, buildings, structures and other improvements hereafter
made to the Property or affixed to the Property by the Lessee.
(e) "Option" shall mean that certain option to purchase any Unit or
Common Area as more particularly provided for in Section 8 hereof.
EXHIBIT
(f) "Project Financing" shall mean any development, construction,
bridge or permanent financing or loan for the purpose of developing the Property and/or
constructing Improvements on the Property.
(g) "Qualified Buyer" shall have the same meaning as set forth in the
Development Agreement.
(h) "Unit" shall mean any portion of the Property or the Improvements
thereon that are subdivided or platted for separate ownership as a residential lot,
condominium unit or townhome unit.
2. Lease Term The County hereby demises and leases to the Lessee the
Property in accordance with the provisions of this Lease.
(a) Term The lease term shall commence as of the date hereof and
shall continue, unless sooner terminated as more fully provided herein,
on , 2012 ( " Lease Term ").
(b) Rent The rent for the entire Lease Term shall be $10.00. County
hereby acknowledges receipt of the rent for the entire Lease Term.
3. Improvements and Development Plan The Lessee shall develop and
improve Property and construct Improvements thereon subject to the following:
(a) Development Agreement The Lessee shall have the right to
develop and improve the Property and to install Improvements thereon in accordance with
and subject to the terms, conditions and provisions of the Development Agreement. All
alterations, additions or Improvements to the Property shall be done at the sole cost and
expense of the Lessee.
(b) Ownership 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 expiration of the Lease Term, Lessee's remaining title
to any Improvements shall automatically vest in the County, subject to the liens, if any,
for Project Financing.
(c) Subdivision County acknowledges that Lessee intends to
subdivide the Property and the Improvements to be constructed 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
and subordinate this Lease to all subdivision plats, declarations of covenants, conditions
and restrictions, subdivision improvement agreements and such other agreements as are
customary in the industry for developing and subdividing such real property located in the
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County.
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(d) Posting Prior to the commencement of any work on the Property,
Lessee shall notify the County of its intention to commence work. The County may, but
shall not be obligated to, avail itself of the provision of C.R.S. § 38 -22 -105. The County
reserves the right to enter the Property to post and keep posted notices described in such
statute. County shall have no obligation to post the Property and shall not be subject to
any liability or defense for failing to do so.
(e) Maintenance of Improvements 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/or repair shall be done at the Lessee's sole cost
and expense. County shall have no obligation to repair, maintain, alter or modify the
Property or any Improvements.
(f) Demolition No structure once constructed shall be demolished,
nor shall the exterior of any structure be altered in any way that materially affects the
exterior appearance of such structure, except in accordance with the terms, provisions and
conditions of the Development Agreement.
(g) Mechanics Liens Lessee shall keep the Property free and clear of
any and all mechanic liens arising out of or in connection with work or labor done,
services performed or materials supplied or furnished in connection with any of the work
performed by the Lessee or any alterations, improvement or repair of the Property done at
the Lessee's request. The Lessee shall promptly and fully pay and discharge any and all
liens that may be recorded against the fee interest of the Property; provided, however that
if the Lessee desires to dispute the validity of the lien or the amount of any such lien, it
may provide the County with notice of its intention to do so within 30 days after Lessee
first discovered that a lien has been recorded in the real property records of Eagle County.
In that case, the Lessee shall diligently and continuously contest the validity and/or
amount of the lien. If a court should enter an order authorizing a sale of the Property
pursuant to the lien, the Lessee shall immediately post a good and sufficient surety bond
with the court sufficient to obtain an order discharging the lien from the Property. Lessee
shall indemnify the County against any loss, expense 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 /Casualty During the Lease Term, Lessee shall maintain the
insurance in accordance with the following:
(a) Liability Insurance Lessee shall at all times carry and maintain
commercial general liability insurance on an on- occurrence basis, with a minimum
combined single limit of $1,000,000 with excess liability coverage limits of not less than
$5,000,000, and automobile liability insurance for all owned, hired and non -owned
automobiles owned or operated by the Lessee providing the minimum combined single
limit of $1,000,000.
( C.
(b) Worker's Compensation Insurance During any period in which
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 of Colorado in
an amount that may be required by applicable statutes.
(c) Property Insurance Lessee shall carry 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 properly insurance may be provided by the
general contractor's builder's risk insurance.
(d) General Insurance Provisions Prior to commencement of any work
on the Property, Lessee shall provide to the County written evidence of such insurance.
Any insurer writing any of the Lessee's insurance shall have an A.M. Best rating of not
less than an A -VIII. All policies shall contain endorsements that the insurer 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 insurance policies, endorsements and certificates
will be on forms and with deductibles and self - insured retention, if any, reasonably
acceptable to the County. Notwithstanding anything contained in this Lease to the
contrary, the County and Lessee waive any and all rights of recovery, claim, action or
causes of action against the other and their respective managers, principals, partners,
officers, directors, agents and employees for any loss or damage that may occur to either
the County or the Lessee or any party claiming by, through or under either one of them, as
the case may be, with respect to the Property, or any Improvements, or any contents
thereof, including any and all rights of recovery, claims, actions or causes of action
arising out of or based upon negligence of either of the parties to this Lease, which loss or
damage is (or would have been insured had the insurance required under this Lease been
carried) covered by insurance.
(e) Casualty Damage If all or any part of the Improvements are
damaged by fire or other casualty, Lessee shall immediately 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 right 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 Warranties
(a) County Warranties County hereby warrants and represents to the
Lessee as follows:
(i) The County is the owner of the fee simple estate of the
Property free and clear of all liens, encumbrances, covenants, conditions, restrictions,
reservations and agreements, except those specifically described in Exhibit B attached
hereto.
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(ii) The County is authorized by the laws of the State of
Colorado to enter into the transaction contemplated by this Lease and to carry out its
obligations hereunder and has duly authorized the execution and delivery of this Lease
and other documents related to this transaction. This Lease, and the County's execution
and performance of this Lease, have been approved by a final resolution of the Board of
County Commissioners.
(iii) Neither the execution, delivery or performance of the terms
and conditions of this Lease, nor the consummation of the transactions contemplated
hereby, conflicts with or results in the breach of any terms, conditions or provisions of
any restriction or agreement or instrument to which the County is now a party, to which
the County is bound, or to which the Property is bound.
(iv) There is no litigation or proceeding pending, or to the
knowledge of the County, threatened against the County or against the Property affecting
the right of the County to execute this Lease or the ability of the County to fully comply
with its obligations contained herein.
(v) This Lease constitutes a legal, valid and binding obligation
of the County in force and is enforceable in accordance with its terms.
(b) Lessee Representations The Lessee warrants and represents to the
County the following:
(i) The Lessee is a Colorado limited 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
authorized the execution and delivery of this Lease.
(iii) Neither the execution, delivery or performance of the terms
and conditions of this Lease, nor the consummation of the transactions contemplated
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.
6. Condemnation In the event that all or any part of the Property is
condemned for any public, quasi - public or private use by any eminent domain
proceedings, then the Lessee shall have the right, but not the obligation, to terminate this
Lease as to the balance of the Property. Lessee shall have the right to enter an appearance
and contest the validity and amount of any such eminent domain proceeding. All
compensation awarded for the fee title and any Improvements or for the use of the
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Property shall be allocated as follows:
(a) the value of fee interest in the Property, in its unimproved
condition at the commencement of this Lease, as subject to this Lease to the County and;
(b) the value of the leasehold estate and the Improvements, to the
Lessee.
7. Covenant of Quiet Enioyment Subject to the terms of this Lease, the
Lessee shall, and may peacefully, hold and enjoy the Property without hindrance from the
County or any person claiming by, through, or under the County.
8. Purchase Option County hereby grants to the Lessee the option to
purchase all or any portion of the Property subject to the terms and provisions of this
section:
(a) Conditions to Exercise The option may be exercised by the
Lessee at any time in any number of times during the term of this Lease subject to the
Lessee's fulfillment of the following conditions preceding:
(i) Lessee shall provide to the County written notice of its
desire to exercise the option describing that portion of the Property to which it desires to
exercise the option, together with a legal description of the same.
(ii) The Lessee may only exercise the option with respect to (i)
a Unit or Units in their entirety and not less than any Unit and (ii) any parcel that is
platted as a common area in any common interest community ( " Common Area ").
(iii) There shall not exist at the time 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 the exercise of the option and any
Common Area for which the option is being exercised shall be conveyed to a
homeowners association formed for 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 the
notice within 5 business days. A closing for the purchase and sale of each Unit subject to
a notice of exercise shall be scheduled at a date mutually agreed upon by the Lessee and
the County manager, but in no event more than 10 business days after the notice of
exercise.
(c) Deliveries at Closing At the closing of the sale of each Unit, the
County shall execute and deliver to the Lessee (i) a general warranty deed warranting title
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to the Unit/Common Area, excluding any improvements installed by Lessee, free and
clear of all liens, encumbrances, easements, restrictions and agreements arising by,
through or under the County, except those consented to or created at the request of the
Lessee (ii) a partial release of the Unit/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 Common Area, which
shall be equal to ten dollars for every Unit/Parcel of Common Area so purchased. The
Lessee shall pay costs of all title insurance premiums, recording fees, and other customary
costs and charges of the closing. In the event that any real property taxes are assessed
against any Unit, the Lessee shall take the property subject to such taxes or proration
thereof and the County shall bear no responsibility for the payment of any such tax. The
County shall obtain an exemption for any transfer tax or shall otherwise pay any transfer
tax attributable to recording of the deed. The closing shall be held and delivery of all
items shall be made at each closing according to the terms of this agreement at such
location as the parties may mutually agree.
(d) Condition of Property County makes no representation or warranty
of any kind or character, whether express or implied, oral or written, with respect to (i)
the value, nature, quality or condition of any Unit/Common Area, (ii) the suitability of
any Unit/Common Area for any use contemplated thereby, (iii) the compliance of any
Unit/Common Area with any laws, rules, regulations or ordinances of any applicable
government body, or (iv) the Unit's /Common Area's habitability, merchantability,
marketability, profitability or fitness for a particular purpose. The Units /Common Areas
shall be sold in their AS IS condition existing on the date of closing.
9. Assignment and Subletting No portion of this Lease or Lessee's right of
possession shall be assigned or sublet by the Lessee without the prior written consent of
the County, provided, however, that nothing in this section shall limit or restrict the
Lessee's ability to (i) encumber or assign its interest in this Lease as provided in Section
10 and any such encumbrance or any subsequent 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
consent of the County, or (ii) assign this Lease to any entity that is a permissible assignee
of the 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.
10. Project Financing The Lessee shall be entitled to obtain Project
Financing and to assign its interest in this Lease, without the prior consent of the County,
subject to the following terms and provisions:
(a) Grant of Lien Immediately upon granting any deed of trust,
collateral assignment or other security interest in this Lease, Lessee shall provide to the
County a copy of any deed of trust, assignment, or other security documents evidencing
such lien or security interest.
(b) Copy of Notices of Default The County shall deliver to each
Lender any demand or notice, including, without limitation any notice of an Event of
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Default, required to be sent by the County to the Lessee under this Lease. The County
shall transmit a copy of such demand or notice to each Lender at the last address of such
Lender, shown in the records of the County. All such notices shall be given in accordance
with the provisions and in the time provided in the manner specified in Section 13(a)
hereof.
(c) Lender's Option to Cure Defaults After any Event of Default
under this Lease, the Lender shall have the right, at its option (but not the obligation), to
cure or remedy or to commence to cure or remedy any such default or Event of Default
within 90 days following the cure period permitted for the Lessee as provided elsewhere
in this Lease. In doing so, the Lender, or a receiver appointed by Lender, may 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 Improvements and the collateral given
to secure the Project Financing. The County agrees that so long as the Lender is
exercising diligent and continuous efforts to foreclose and obtain possession of the
Property or to cure any default capable of being cured, that the County will not exercise
its remedy to terminate this Lease (although it may exercise other remedies). Nothing
contained in this provision shall be deemed to permit or authorize a Lender to undertake
and continue the construction of the Project beyond the extent necessary to conserve or
protect the Project or the Improvements in any manner inconsistent with the Development
Agreement, unless the Lender has first obtained the consent of the County.
(d) Lender Not Obligated to Construct Notwithstanding any other
provision of this Lease, a Lender (including a Lender or other person or entity who
obtains title to any part of the Property or Improvements as a result of foreclosure
proceedings, or deed in lieu thereof, and including any other parry who thereafter obtains
title to the Property or such part or through such Lender for such person or entity) shall
not be obligated to construct or complete the Improvements, the Project or any part of
them, 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 pursuant to the Development Agreement.
(e) Lender's Option to Extend Term If a Lender should foreclose on
Lessee's interest in the lease, the Lender shall have an option to extend the term of this
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 herein, within 190 days of the dates
that Lender receives a public trustees deed, or an assignment of the Lease in lieu of
foreclosure. Upon the exercise of such option, County agrees to execute an amendment to
this Lease, in recordable form, acknowledging the extended term of the Lease.
(f) No Modification County agrees and covenants to each Lender that,
once it has received notice of any deed of trust or encumbrance to secure Project
Financing, that no amendment, modification, termination or cancellation, or surrender of
the Property shall be valid or enforceable without the prior written consent of Lender.
(g) Non - Merger 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) County's Option to Cure Mortgage Default The County may, at its
option, and without any obligation, cure any defaults under any mortgage securing Project
Financing. Each Lender agrees to provide 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 after notice of default is given to the County.
(i) Count lOption to Pay Mortgage . If, after an Event of
Default by the Lessee under this Lease, a Lender elects to exercise its remedies to
foreclose upon the Property under the loan documents evidencing the Project Financing,
the Lender shall give County notice of such intention. The County shall have, for a
period of ninety (90) days following such notice, the option of_paying the Lender all
amounts evidenced or secured by its loan documents and taking an assignment of the
promissory notes(s) and mortgage(s) securing Project Financing, without recourse or
warranty, upon payment to the Lender of all principal and interest (at the non - 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 County does not exercise the above
option, then the Lender shall take title to the Property for that portion of the Property
encumbered by its mortgage free and clear of the Development Agreement and the
Lessee's obligation to sell Units only to Qualified Buyers subject to Deed Restrictions. In
such event, the term "Qualified Buyer" shall mean any purchaser qualified by Lender or
its successors and the Units may be sold without Deed Restrictions.
11. Events of Default/Remedies Lessee shall be considered to be in default
of this Lease by the occurrence of any one of the following events ( " Event of Default "):
(a) Lessee's failure to pay when due all or any portion of the rent or
any other monetary sum due hereunder if not paid within ten days after written notice to
Lessee.
(b) Lessee's failure to (other than any monetary default) comply with
any term, provision or covenant of this Lease, if the failure is not cured within 60 days
after written notice to Lessee and each Lender, if any, however, if Lessee's failure cannot
reasonably be cured within 60 days, Lessee shall be allowed additional time as is
reasonably necessary to cure the failure so long as Lessee commences the cure and Lessee
diligently and continuously pursues a course of action that will cure the failure and bring
the Lessee back into compliance.
(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
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petition for protection under the United States Bankruptcy Code, is dissolved, or is
liquidated.
Upon the occurrence of any Event of Default, County shall have the right, without notice
or demand, to pursue any remedy at law or in equity, including a right of specific
performance and/or damages; provided, however, the County shall not have the right to
terminate this Lease based upon any Event of Default identified in subparagraph (c)
above if, at the time of Event of Default, Lessee has granted a deed of trust, mortgage,
lien, collateral assignment or security interest in this Lease to secure Project Financing. In
no event shall Lessee be liable for consequential or punitive damages.
12. County's Default and Lessee's Remedies County shall be considered in
default of this Lease upon County's failure to comply with any terms, provisions or
covenants of this Lease if such failure is not cured within 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 allowed additional time as is reasonably necessary to cure
such defaults so long as County commences the cure within such 30 days and is diligently
and continuously pursuing a course of action that will cure such failure and bring the
County back into compliance with this Lease. Upon any default, Lessee shall have all the
rights and remedies at law and equity, including a right of specific performance and/or
damages and/or the right to terminate this Lease, all of which remedies shall be
cumulative. In addition, Lessee may elect to terminate this Lease if the County terminates
the Development Agreement, provided that Lessee may 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 government,
State of Colorado, or United States government, including any and all materials or
substances that are defined as `hazardous waste' or `hazardous substance' pursuant to
state, federal or local governmental laws.
(b) Lessee shall not cause or permit any Hazardous Substance to be
used, stored, generated or disposed of on or in the Property by the Lessee or Lessee's
contractors, employees, or invitees in violation of any ordinances, rules and regulations or
other legal requirements governing Hazardous Substances ( " Laws ") without first
obtaining Landlord's written consent, except for any Hazardous Substances that are
ordinarily and commonly used in the construction and development industry in the
construction and improvement of real property. If Hazardous Substances are used, stored
or generated or disposed of by Lessee or Lessee's agents, employees, contractors or
invitees on or in the Property, except as permitted above, Lessee shall indemnify, defend
and hold County harmless from any and all claims, damages, fines, judgments, penalties,
costs, liabilities or losses (including, without limitation) any and all sums paid for good
faith settlement of claims, attorneys fees, consultant and expert fees arising during or after
the Lease term and arising as a result of such contamination by Lessee. This
indemnification includes, without limitation, any and all costs incurred because of any
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investigation of the site, any cleanup, removal or restoration mandated by a federal, state
or local agency or political subdivision. Without limitations of the foregoing, if Lessee
causes or permits the presence of any Hazardous Substances at the Property and such
action results in contamination, Lessee shall promptly, at its sole expense, take any and
all necessary actions to return the Property to the condition existing prior to the presence
of any such hazardous substance on the Property. Lessee shall first obtain County's
approval for any such remedial action, which shall not be unreasonably withheld, delayed
or conditioned.
(c) County hereby warrants that, 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 of on
or in the Property by the County, its agents, employees, contractors, or invitees, without
the prior written notification of Lessee. County, at its sole cost and expense, shall be
responsible for the removal, abatement and/or remediation of any Hazardous Substances
now or hereafter located in, on or under the Property which were not introduced by
Lessee or Lessee's employees, contractors, invitees or their respective agents or
employees. If 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, Landlord shall indemnify, defend and hold
Lessee harmless from any and all claims, damages, fines, judgments, penalties, costs and
liabilities or losses (including without limitation, any and all sums paid for good faith
settlement of claims, attorneys' fees, consultant and expert fees) arising during or after
the Lease Term as a result of such contamination.
14. Bankruptcy Berry 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
irrevocably waives the right provided under the U.S. Bankruptcy Code to reject this
Lease. In the event that this provision is unenforceable, and Berry Creek Limited Liability
Co. or a trustee rejects this Lease, the County agrees to enter into a new lease with the
Lender on terms and provisions identical to those contained herein.
15. Miscellaneous
(a) Notices All notices, communications, consents, demands and other
writings in this Lease provided to 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 fully given or made when
made in writing (i) if given by hand delivery, upon delivery, (ii) if sent by Federal
Express or some nationally recognized overnight carrier, upon delivery, or (iii) if given by
certified mail, then three business day after being deposited in the U.S. Mail, certified
mail, return receipt requested, postage prepaid, to the address specified below, or to such
other address as either party may provide by written notice to the other:
COUNTY:
0 G
Board of County Commissioners
P.O. Box 850
500 Broadway
Eagle, CO 81631
ATTN:
With a copy to:
Eagle County Attorney
P.O. Box 850
500 Broadway
Eagle, CO 81631
LESSEE:
Berry Creek Limited Liability Co. c/o ASW Realty
21820 Burbank Boulevard, Suite 120
Woodland Hills, CA 91367
Attention: Mark Ross
With a copy to:
Alan M. Keefe, Esq.
Bendelow Law Firm, P.C.
1120 S. Lincoln Ave., Suite 203
PO Box 773630
Steamboat Springs, CO 80477
(b) Construction The language used in this Lease and all parts hereof
shall be construed as a whole according to the ordinary and fair meaning 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 against any party. All
parties have participated in the preparation of this Lease. Whenever required by context,
the singular shall include the plural, the plural the singular, and one gender shall include
all genders. This Lease shall be governed by and construed in accordance with the laws of
the State of Colorado.
(c) Required Consents 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) Relationship 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
partnership or joint venture between the parties hereto, it being understood and agreed
that neither the method of computing rent nor any other provisions contained herein nor
any of the acts of the parties hereto shall be deemed to create any relationship between the
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parties other than that of landlord and tenant.
(e) Brokers County and Lessee each represent to one another that each
has not dealt with any broker or any other person who could make a claim for a
commission or fee on account of any alleged broker services or employment as a broker.
Each party agrees to indemnify and hold the other harmless from any such claim.
(f) Estoppel Certificates County shall, from time to time, upon not
less than five (5) business days prior written request by Lessee, execute, acknowledge and
deliver to Lessee or to any Lender a statement acknowledging that this Lease is
unmodified and is in full force and effect (or if there have been modifications, that the
same is in full force and effect as modified, stating the modification), and the date to
which the rental and other charges have been paid in advance, if any, that no Event of
Default has occurred (or if it has specifying the nature of the default) and containing any
other statements of fact reasonably requested by Lessee and/or Lender and a certificate
that such statements are true, accurate and complete. It shall be reasonable for a Lender to
request that insurance and condemnation proceeds be applied to repay Project Financing,
notwithstanding anything contained in this lease to the contrary. It is intended that any
such statement delivered pursuant to this section may 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) Subordination County hereby agrees that this Lease shall be
subject to and subordinate to any mortgage or deed of trust now or hereafter placed upon
this Lease or Lessee's interest in this Lease for the purpose of securing the Project
Financing and shall agree with any Lender that the Lender's rights to possession of
Property under this Lease shall not be disturbed as a result of any Event of Default by
Lessee so long as the Lender shall continue to observe and perform, to the best of its
ability, all of the obligations contained in this Lease. Furthermore, county aggress to join
in and execute any deed of trust or mortgage given to secure the Project Financing, and
the County's fee interest shall be encumbered by Lessee's mortgage.
(h) Arbitration If a dispute arises out of or relates to this Lease
(including, without limitation, any disputes regarding any consents or approvals required
to be given by any party herein or disputes over the existence of an Event of Default) or
the breach thereof, and if the dispute cannot be settled through negotiations, the parties
agree first to try in good faith to settle the dispute by non - binding mediation administered
by the mediator mutually selected by the parties prior to resorting to binding arbitration.
In the event that the parties cannot agree upon a mediator, the mediation shall be
administered by the American Arbitration Association. If any such dispute cannot be
resolved by the aforesaid mentioned mediation, the dispute shall be settled by binding
arbitration administered by the American Arbitration Association under its commercial
arbitration rules and judgment on the award rendered by the arbiter(s) may be entered in
any court having jurisdiction thereof.
(i) Force Majeure: Time Of The Essence: Whenever a period of time
or specified date is herein prescribed for action to be taken by either Party, there shall be
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excluded from the computation of any such period of time or an extension of such
specified date, any delays due to strikes, riots, acts of terrorism, acts of God (excluding
weather delays reasonably and historically known to occur, as defined by a ten (10) year
average of the U.S. Meteorological Survey data, or similarly and mutually acceptable
data, in the geographical area of the Property), shortages of labor or materials outside of
the parameters typically found in the geographical area of the Property, war, or
governmental laws, regulations, restrictions or moratoriums (except to the extent waived
or otherwise not applied to the Project or the Property) and unforeseeable delays caused
by the Project lender; provided, however, that both parties shall use their best and diligent
efforts to mitigate the effects of such occurrences with respect to the required action;
provided, that reasonable costs relating to such mitigation efforts shall be includable as an
addition to the Projects Costs. Subject to the foregoing, time is of the essence with respect
to each and every provision of this Agreement.
0) Attorneys Flees_ In the event of any legal action concerning the
interpretation or enforcement of this Lease, the party that substantially prevails in 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.
(k) 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 run with the land, shall be binding upon and inure to the benefit of each and
every successor in interest to the Property and any portion thereof. By acceptance of any
interest in the Property, the parties and their successors agree to be bound by this Lease.
IN WITNESS WHEREOF, the parties have executed this Lease to be effective as of the
day and year first written above.
" County "
ATTEST:
COUNTY OF EAGLE, STATE OF COLORADO
By and Through Its
BOARD OF COUNTY COMMISSIONERS
an
Michael Gallagher, Chairman
Clerk to the Board of
County Commissioners
"Lessee"
Berry Creek Limited Liability Co.
a Colorado limited liability company
By:
Manager
f
STATE OF COLORADO )
)ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
3 20 , by Michael Gallagher, Chairman of and on behalf of Eagle County
Board of County Commissioners.
Witness my hand and official seal.
My commission expires:
STATE OF
COUNTY OF
Notary Public
)ss.
The foregoing instrument was acknowledged before me this day of
, 20 , by , as Manager of and on behalf of
Berry Creek Limited Liability Co., a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
, tl
EXHIBIT A
Legal Description Of Property
IWC IC
C-1 G
Permitted Exceptions