Blueprint






Exhibit 10.1







ELEVENTH AMENDMENT TO



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 



(Sky Ranch)


 


THIS ELEVENTH AMENDMENT TO CONTRACT FOR
PURCHASE AND SALE OF REAL ESTATE (this
“Amendment”)
is made as of November 10, 2017 (“Effective
Date”), by and between
PCY HOLDINGS, LLC, a Colorado limited liability company
(“Seller”),
and RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware
corporation (“Purchaser”).
Seller and Purchaser may be referred to collectively as the
“Parties.”

 



R E C I T A L S

 

A. Seller
and Purchaser previously entered into a Contract for Purchase and
Sale of Real Estate effectively dated June 27, 2017 (as amended,
the “Contract”)
for approximately 190 platted single-family detached
residential lots in the Sky Ranch master planned residential
community in the County of Arapahoe, State of
Colorado.

 

B. Purchaser
and Seller now desire to amend the terms and conditions of the
Contract as set forth below. Capitalized terms used but not
otherwise defined in this Amendment will have the same meanings
given to such terms in the Contract.

 



A G R E E M E N T

 


NOW,
THEREFORE, in consideration of the mutual covenants contained in
this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Purchaser
and Seller hereby agree as follows:

 

1. Recitals. The recitals set
forth above are true and correct and are incorporated herein in
their entirety by this reference.

 

2. Continuation Notice. Upon
mutual execution hereof by both Seller and Purchaser, this
Amendment shall constitute Purchaser’s Continuation Notice as
defined in Section 10(a) of the Contract.

 

3. Identification of Lots. The
Takedown 1 Lots and Takedown 2 Lots are identified on Schedule 1,
attached hereto and incorporated herein by reference.


 

4. Building Envelope Depth. The
second sentence in Section 5(a)(ii) of the Contract is hereby
amended to provide that the Final Subdivision Documents shall allow
for a building envelope depth for each Lot that is not less than
seventy (70) feet (after taking into consideration applicable
setbacks).


 

5. Final Approval of
Entitlements.


 

a. The fifth and sixth
sentences in Section 5(a)(ii) of the Contract are hereby deleted in
their entirety and replaced with the following: “In the event
Seller is unable to obtain Final Approval of the Entitlements for
the Takedown 1 Lots on or before nine (9) months after expiration
of the Due Diligence Period (or any extensions thereof) then Seller
or Purchaser, in their discretion, shall have the right to extend
the date for obtaining such Final Approval for a period not to
exceed six (6) months. If Seller or Purchaser extends the time
period for obtaining such Final Approval for the Takedown 1 Lots,
then during such extended time period, Seller shall continue to use
commercially reasonable efforts to obtain Final Approval of such
Entitlements, and failing which, Seller shall not be in default of
its obligations under this Contract, but Purchaser may as it sole
remedy hereunder terminate this Contract as to such Takedown
and any remaining
Takedowns by written notice to Seller, delivered within ten
(10) business days after the end of the time period as extended for
obtaining such Final Approval, in which case each party shall
thereupon be relieved of all further obligations and liabilities
under this Contract, except as otherwise provided herein, and the
Deposit shall be returned to Purchaser.”


 







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b. The eighth sentence
in Section 5(a)(ii) of the Contract is hereby deleted in its
entirety and replaced with the following: “In the event
Seller is unable to obtain Final Approval of the Entitlements for
the Takedown 2 Lots on or before nine (9) months after the First
Closing, then Seller or Purchaser, in their discretion, shall have
the right to extend the date for obtaining such Final Approval for
a period not to exceed six (6) months. If Seller or Purchaser
extends the time period for obtaining such Final Approval for the
Takedown 2 Lots, then during such extended time period, Seller
shall continue to use commercially reasonable efforts to obtain
Final Approval of such Entitlements, and failing which, Seller
shall not be in default of its obligations under this Contract, but
Purchaser may as it sole remedy hereunder terminate this Contract
as to such Takedown by written notice to Seller, delivered within
ten (10) business days after the end of the time period as extended
for obtaining such Final Approval, in which case each party shall
thereupon be relieved of all further obligations and liabilities
under this Contract, except as otherwise provided herein, and the
then-current amount of the Deposit shall be returned to
Purchaser.


 

6. Offsite
Infrastructure. Section 5(b) of
the Contract (and Section 4.5.1 of the form Lot Development
Agreement) are hereby revised to reflect that the definition of the
terms “Substantially Complete” and “Substantial
Completion” shall include the requirement that Seller has
executed all utility extension contracts and paid all necessary
fees so that all dry utilities serving the Property can be
installed within 120 days following Substantial Completion of the
Improvements; provided Seller shall have no liability if such
utilities are not timely installed, so long as it has executed said
contracts and paid such fees.

 

7. Purchaser’s
Conditions.

 

A. The
fourteenth sentence of Section 5(b) of the Contract is hereby
deleted in its entirety and replaced with the
following:

 


As an
addition to Purchaser’s Condition Precedent, Seller, the CAB
(hereinafter defined) and/or Rangeview (as applicable) shall on or
before the First Closing (i) have substantially completed the CDs
for the Offsite Infrastructure Improvements and Joint Improvements;
(ii) have obtained development permits for the Offsite
Infrastructure Improvements; (iii) have let the contracts for
installation of the Offsite Infrastructure Improvements (iv) have
deposited funds into segregated accounts maintained by the CAB and
Rangeview, as applicable, pursuant to one or more agreements equal
to the reasonably contracted cost to Substantially Complete the
Offsite Infrastructure Improvements and the budgeted costs to
Substantially Complete the Joint Improvements (which costs shall
include a reasonable contingency), which Seller, the CAB and/or
Rangeview shall have the right to draw upon to pay for such
Improvements as constructed, and (v) have delivered to Purchaser a
resolution of the CAB Board of Directors and Rangeview Board of
Directors (as applicable) appropriating the funds described in
clause (iv) above, and each such
resolution, as applicable, shall confirm that such appropriation is
for the purpose of paying for such
improvements.


 




 

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b. Section
6(b) of the Contract is hereby amended to add the following
Purchaser’s Conditions Precedent:

 

(vii)   
To the extent such permits, if any, are required for the
development of the Property, Seller shall have obtained any such
required wetland permits and permits required under Section 404 of
the Clean Water Act.


 


(viii)   
As a Purchaser’s Condition Precedent to the Takedown 2
Closing only, the Alternative Service shall be completed in
accordance with the requirements of all applicable Authorities, and
the Alternative Service shall be fully operational.


 

(ix)   
At each Closing, all necessary offsite easements shall have been
properly granted and shall be free of monetary liens, and fee title
to the real property on which the water and sewer plants, and parks
and open space, are located shall have been conveyed to the
applicable authority free of monetary liens, and in accordance with
the terms of the Project Documents.


 

(x)   
At each Closing, Seller shall have applied for a grading permit for
the Lots acquired by Purchaser at such Closing and shall have taken
all actions required to obtain the issuance of such grading permit
from the applicable Authority so that the same may be issued at
each Closing.


 

(xi)   
At the Takedown 1 Closing, a Sky Ranch Community Authority Board
Establishment Agreement, by and between Sky Ranch Metropolitan
District No.1, and Sky Ranch Metropolitan District No. 5,
substantially in the form of version {00578105.DOC v:3}, shall have
been fully executed by the parties thereto, thereby creating the
Sky Ranch Community Authority Board (the “CAB”).


 

(xii)   
At the Takedown 1 Closing, the Property shall be located only
within the boundaries of Sky Ranch Metropolitan District No. 1 and
not within the boundaries of any other Sky Ranch metropolitan
district.

 




8. Seller’s
Conditions. Section 6(a)(i) of
the Contract is hereby amended to read as follows: As of the date
of the First Closing, Seller is under contract to sell at least an
aggregate total of 200 residential lots within the Development to
Purchaser and other homebuilders, and as of the date of the First
Closing either (a) one other homebuilder has previously closed on
its initial purchase of lots under its purchase and sale agreement,
or (b) Purchaser and one other homebuilder simultaneously close
their initial purchases of lots under their purchase and sale
agreements, or (c) there are no material conditions to an initial
closing that remain to be satisfied under another
homebuilder’s purchase and sale
agreement.

 

9. District
Deficits. Section 16(c) of the
PSA is hereby revised to add the following subsection (v)
thereto:

 




 

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(v)    For the avoidance of doubt, and
notwithstanding anything to the contrary contained in this Section
16: So long as representatives of Seller or its affiliates
hold the majority of the director positions on the board of
directors of any special improvement district or metropolitan
district (including any community authority board) to which the
Property is subject other than Rangeview Metropolitan District
(collectively, the “Metro
Districts”), and Purchaser is the holder of record
title to any of the Lots, but in no event longer than 4 years after
the date of the Substantial Completion of the first phase of Lots
referenced in section 5(c)(ii), above: (1) Seller shall be
obligated to fund all deficits of the Metro Districts; (2) Seller
shall promptly upon receipt of any invoice from Purchaser for an
amount paid by Purchaser for that portion of the mill levy that is
assessed by the District for debt service, as reflected in the
service plan, that exceeds fifty (50) mills (the
“Mill
Levy Cap”). Notwithstanding the foregoing, the Mill
Levy Cap may be increased or decreased as to all taxable property
in the District to reflect any legislation implementing changes in
the ratio of actual valuation to assessed valuation for residential
real property, pursuant to Article X, Section 3(1)(b) of the
Colorado Constitution, so that, to the extent possible, the actual
tax revenues generated by the District imposed mill levy, as
adjusted, are neither diminished nor enhanced as a result of such
changes (“Gallagher
Adjustment”). For purposes of the foregoing, a change
in the ratio of actual valuation shall be deemed to be a change in
the method of calculating assessed valuation; (3) after the
Effective Date, Seller shall not cause, agree to or acquiesce to
any change, modification, alteration, termination or extension to
any of the documents which govern the Metro Districts, if the same
would have a material impact on Purchaser or its Lots without the
prior written consent of Purchaser, which will not be unreasonably
withheld; and (4) if at any time Purchaser is required to pay any
amounts to the Metro Districts other
than the mill levies as set forth above and the system development
fees addressed in Section 16 of the Contract and except for
assessments and/or charges for covenant control and common area and
amenity maintenance, repair and operations, then Seller shall pay such amounts on
behalf of Purchaser or reimburse Purchaser within thirty (30) days
of demand for such amounts if
then paid by Purchaser. This provision shall survive the Closing
and be enforceable by Purchaser by all legal and equitable means,
including without limitation specific
performance.

 


10.           Districts.

 


a.           Section
9(d) of the Contract is hereby deleted in its entirety and replaced
with the following: “(d) The inclusion of the Property into
the Sky Ranch Metropolitan District No. 1 (the
“District”).”


 


b.           The
following provisions of the Contract are hereby deleted in their
entirety: Section 10(b)(v) and Section 12(a). Section 10(b)(i) is
hereby amended in its entirety to read as follows: The ability of
applicable utility companies to provide utility services to the
Property, including the quality, sizing and cost of such services
provided that the development work for the Property is completed in
accordance with this Contract.


 


11.           Marketing
Sales Activities. From and
after the First Closing, Purchaser may construct and maintain upon
portions of the Development owned by Purchaser such facilities,
activities, and things as, in Purchaser’s reasonable opinion,
may be required, convenient, or incidental to the construction or
sale of Lots and single family
homes located thereon. Such permitted facilities, activities, and
things shall include, without limitation, business offices, signs,
flags (whether hung from flag poles or attached to a structure),
model Lots, model homes,
parking lots, sales
offices, sales trailers,
construction offices, construction trailers, holding or sponsoring special events, and exterior
lighting features or displays, subject to compliance with all laws
(collectively “Marketing
Activities”). In
addition, from and after the First Closing, Purchaser shall have
the right to place signage on those portions of the Development
owned by Seller that have been identified by Seller as appropriate
locations for such signage, and subject to reasonable rules and
regulations established by Seller for the homebuilders within the
Development. If, following the Effective Date of this Amendment,
the Seller establishes a signage program for the Development, the
Parties will meet and agree in good faith upon the terms of such
program, and the Parties will enter into an amendment to the
Contract to reflect the terms of such program. This provision shall
survive closing.


 




 

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12.           Designation
of Builder. Section 8(d)(ii)(7)
of the Contract is hereby revised to reflect that notwithstanding
anything to the contrary contained in the Contract, at each
Closing, Seller shall deliver a signed “Designation of
Builder” which designates Purchaser as a
“Builder” in accordance with Section 2.2 of the Master
Covenants, and such Designation of Builder shall be recorded
in the real property records of Arapahoe County,
Colorado.


 

13. Project
Documents. The term
“Project
Documents” shall
collectively refer to the following:

 




A.

the
Lot Development Agreement;





 




B.

the
Joint Improvement Memorandum;





 




C.

the
Offsite Infrastructure Agreement;





 




D.

the
Tap Purchase Agreement;





 




E.

the escrow agreement referenced in Section 6.1(h)
of the Lot Development Agreement (the “LOC
Escrow Agreement”);





 




F.

the
Master Covenants;





 




G.

the Declaration of Covenants Imposing and
Implementing the Sky Ranch Public Improvement Fee (the
“PIF
Covenant”);





 




H.

a development agreement for the financing and
construction of the Community Park referenced in section 5(b) of
the Agreement (the “Community
Park Development Agreement”); and





 




I.

Service Agreements for Project Management Services
between (1) Seller and that certain Community Authority Board
created by virtue of the Sky Ranch Community Authority Board
Establishment Agreement between Sky Ranch Metropolitan District No.
1 and Sky Ranch Metropolitan District No. 5; and (2) Seller and
Rangeview Metropolitan District. 





 


The
Contract is hereby amended to provide that Purchaser approves the
form of the Project Documents listed on Schedule 2, attached
hereto. The Purchaser and Seller will not unreasonably withhold
their consent to further amendments to the Project Documents that
do not materially adversely affect such consenting
Party.

 

14. Construction. Each of the
Parties acknowledges that they, and their respective counsel,
substantially participated in the negotiation, drafting and editing
of this Amendment. Accordingly, the Parties agree that the
provisions of this Amendment shall not be construed or interpreted
for or against any Party hereto based on authorship.


 




 

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15. Authority. Each Party
represents and warrants that is has the power and authority to
execute this Amendment and that there are no third party approvals
required to execute this Amendment or to comply with the terms or
provisions contained herein.

 

16. Headings. The section headings
used herein shall have absolutely no legal significance and are
used solely for convenience of reference.

 

17. Ratified and Confirmed. The
Contract, except as modified by this Amendment, is hereby ratified
and confirmed and shall remain in full force and effect in
accordance with its original terms and provisions. In the case of any conflict between the terms of
this Amendment and the provisions of the Contract, the provisions
of this Amendment shall control

 

18. Counterparts. This Amendment
may be executed in counterparts, each of which shall be deemed to
be an original, and both of which together shall be deemed to
constitute one and the same instrument. Each of the Parties shall
be entitled to rely upon a counterpart of this Amendment executed
by the other Party and sent via facsimile or e-mail
transmission.


 

 



 [SIGNATURE PAGE FOLLOWS]

 




 

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IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the Effective Date.

 



SELLER:

 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


By:
PURE CYCLE CORPORATION, its Sole Member


 



By: /s/ Mark
Harding






Name:
Mark Harding


Title:
President


 


 


PURCHASER:


 


RICHMOND
AMERICAN HOMES OF COLORADO, INC., a Delaware
corporation


 


 



By: /s/ Linda M.
Purdy






Name:
Linda M. Purdy


Title:
Vice President


 




 

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SCHEDULE 1

 



Identification of Richmond American Lots

 



First Closing = the Richmond Lots shown below as “Takedown
1a” and “Takedown 1b” lots

 



Second Closing = the Richmond Lots shown below as “Takedown
2a” and “Takedown 2b” lots

 


 






 


 




 

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SCHEDULE 2

 



Project Documents

 

A. the
Lot Development Agreement – version 44935622.21;

 

B. the
Joint Improvement Memorandum version 50288616.11;

 

C. the
Offsite Infrastructure Agreement version 45683874.18;

 

D. the
Tap Purchase Agreement version 50801541.3;

 

E. the
escrow agreement referenced in Section 6.1(h) of the Lot
Development Agreement (the “LOC
Escrow Agreement”)
version 51485398.3;

 

F. the
Master Covenants version 49897386.6;

 

G. the
Declaration of Covenants Imposing and Implementing the Sky Ranch
Public Improvement Fee (the “PIF Covenant”) version 43418032.7;

 

H. a
development agreement for the financing and construction of the
Community Park referenced in section 5(b) of the Agreement (the
“Community
Park Development Agreement”) version 50868788.9;
and

 

I. Service
Agreements for Project Management Services between (1) Seller and
that certain Community Authority Board created by virtue of the Sky
Ranch Community Authority Board Establishment Agreement between Sky
Ranch Metropolitan District No. 1 and Sky Ranch Metropolitan
District No. 5, version 51523234.6; and (2) Seller and Rangeview
Metropolitan District, version 51633229.4. 



 




 

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