Blueprint





  Exhibit 10.20







 


 



PCY HOLDINGS, LLC


 



and


 



TAYLOR MORRISON OF COLORADO, INC.


 


 


 



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 


(Sky
Ranch)


 


 


 


 






 





 




Table of Contents


 


	

1

	

Purchase
and Sale

	

2


	

2

	

Purchase
Price. Purchase Price Calculation

	

2


	

3

	

Payment
of Purchase Price

	

3


	

4

	

Seller’s
Title

	

3


	

5

	

Seller
Obligations

	

7


	

6

	

Pre-Closing
Conditions

	

12


	

7

	

Closing

	

13


	

8

	

Closings;
Closing Procedures

	

14


	

9

	

Seller’s
Delivery of Title

	

17


	

10

	

Due
Diligence Period; Acceptance of Property; Release and
Disclaimer

	

18


	

11

	

Seller’s
Representations

	

25


	

12

	

Purchaser’s
Obligations

	

26


	

13

	

Excusable
Delay

	

29


	

14

	

Cooperation

	

29


	

15

	

Fees

	

29


	

16

	

Water
and Sewer Taps; Fees

	

29


	

17

	

Reimbursements
and Credits

	

31


	

18

	

Name
and Logo

	

32


	

19

	

Renderings

	

32


	

20

	

District

	

32


	

21

	

Soil
Hauling

	

33


	

22

	

Specially
Designated Nationals and Blocked Persons List

	

33


	
 

	
 

	
 






 



 

i







 





 


	

23

	

Assignment

	

33


	

24

	

Survival

	

34


	

25

	

Condemnation

	

34


	

26

	

Brokers

	

34


	

27

	

Default
and Remedies

	

34


	

28

	

General
Provisions

	

36






 

 

 


 

 


 




 

ii








 







DEFINITIONS


“Architectural
Review Committee” shall have the meaning set forth in
Section 12(d).


“Authorities”
and “Authority” shall have the
meaning set forth in the Recitals.


“BMPs”
shall have the meaning set forth in Section 28(x).


“Board”
shall have the meaning set forth in Section 16(b).


“CDs”
shall have the meaning set forth in Section 5(a)(i).


“Closed”
shall have the meaning set forth in Section 7.


“Closing
Date” shall have the meaning set forth in Section
8(b).


“Closing”
shall have the meaning set forth in Section 7.


“Communication
Improvements” shall have the meaning set forth in
Section 20.


“Communications”
shall have the meaning set forth in Section 28(j).


“Completion
Notice” shall have the meaning set forth in Section
5(b).


“Confidential
Information” shall have the meaning set forth in
Section 28(bb).


“Continuation
Notice” shall have the meaning set forth in Section
10(a).


“Contract”
shall have the meaning set forth in the Recitals.


“County
Records” shall have the meaning set forth in Section
5(a)(i).


“County”
shall have the meaning set forth in the Recitals.


“Dedications”
shall have the meaning set forth in Section 17.


“Deferred
Purchase Price” shall have the meaning set forth in
Section 2(a).


“Deposit”
shall have the meaning set forth in Section 3(a).


“Design
Guidelines” shall have the meaning set forth in
Section 12(d).


“Development”
shall have the meaning set forth in the Recitals.


“District
Improvements” shall have the meaning set forth in
Section 16(b).


“District”
shall have the meaning set forth in Section 9(d).


“Due
Diligence Period” shall have the meaning set forth in
Section 10(a).


“Easement”
shall have the meaning set forth in Section 20.


“Effective
Date” shall have the meaning set forth in the
Recitals.


“Entitlements”
shall have the meaning set forth in Section 5(a)(i).


“Environmental
Claim” shall have the meaning set forth in Section
10(h).


“Environmental
Laws” shall have the meaning set forth in Section
10(g).


“EPA”
shall have the meaning set forth in Section 10(c).



 

iii







 






“Escalator”
shall have the meaning set forth in Section 2(b).


“Existing
Entitlement Documents” shall have the meaning set
forth in Section 5(a)(i).


“FDP
Criteria” shall have the meaning set forth in Section
12(d).


“Feasibility
Review” shall have the meaning set forth in Section
10(a).


“Filing”
and “Filings” shall have the
meaning set forth in the Recitals.


“Final
Approval” shall have the meaning set forth in Section
5(a)(i).


“Final
Lotting Diagram” shall have the meaning set forth in
Section 1.


“Final
Plat” shall have the meaning set forth in Section
5(a)(i).


“Final
Subdivision Documents” shall have the meaning set
forth in Section 5(a)(i).


“Finished
Lot Improvements” shall have the meaning set forth in
the Recitals.


“First
Closing” shall have the meaning set forth in Section
1.


“Force
Majeure” shall have the meaning set forth in Section
13.


“General
Assignment” shall have the meaning set forth in
Section 8(d)(iii)(9).


“Good
Funds” shall have the meaning set forth in Section
2(a).


“Government
Warranty Period” shall have the meaning set forth in
Exhibit C.


“Governmental
Fees” shall have the meaning set forth in Section
17.


“Governmental
Warranty” shall have the meaning set forth in Exhibit
C.


“Hazardous
Materials” shall have the meaning set forth in Section
10(g).


“Homebuyer
Disclosure” shall have the meaning set forth in
Section 12(e).


“House
Plans” shall have the meaning set forth in Section
12(d)(i).


“Infrastructure
Improvements” shall have the meaning set forth in
Section 17.


“Initial
Purchase Price” shall have the meaning set forth in
Section 2(a).


“Lien
Affidavit” shall have the meaning set forth in Section
4(a).


“Lot”
and “Lots” shall have the
meaning set forth in the Recitals.


“Lot
Development Agreement” shall have the meaning set
forth in the Recitals.


“Lotting
Diagram” shall have the meaning set forth in the
Recitals.


“Master
Commitment” shall have the meaning set forth in
Section 4(a).


“Master
Covenants” shall have the meaning set forth in Section
4(d).


“Master
Declaration” shall have the meaning set forth in
Section 4(d).


“Metro
District Payments” shall have the meaning set forth in
Section 16(b).


“New
Exception Objection” shall have the meaning set forth
in Section 4(b).


“New
Exception Review Period” shall have the meaning set
forth in Section 4(b).


“New
Exceptions” shall have the meaning set forth in
Section 4(b).


“NOI”
shall have the meaning set forth in Section 28(x).


“Non-Government
Warranty Period” shall have the meaning set forth in
Exhibit C, Section 3(b).


“Non-Government
Warranty” shall have the meaning set forth in Exhibit
C, Section 3(b).


“Non-Seller
Caused Exceptions” shall have the meaning set forth in
Section 4(b).


“NORM”
shall have the meaning set forth in Section 10(c).


“OFAC”
shall have the meaning set forth in Section 22.


"Offsite
Infrastructure Improvements" shall have the meaning set
forth in Section 5(b).


“Other
New Exceptions” shall have the meaning set forth in
Section 4(b).


“Overex”
shall have the meaning set forth in Section 10(e).


“Permissible
New Exceptions” shall have the meaning set forth in
Section 4(b).


“Permitted
Exceptions” shall have the meaning set forth in
Section 9.


“PIF
Percentage” shall have the meaning set forth in
Section 9(e).


“Property”
shall have the meaning set forth in the Recitals.


“Public
Improvement Fee” or “PIF” shall have the
meaning set forth in Section 9(e).


“Public
Improvements” shall have the meaning set forth in
Exhibit C, Section 3(a).


“Punch-List
Items” shall have the meaning set forth in Section
5(b).


“Purchase
Price” shall have the meaning set forth in Section
2.


“Purchaser
Parties” shall have the meaning set forth in Section
10(i).


“Purchaser’s
Geotechnical Reports” shall have the meaning set forth
in Section 10(e).


“Purchaser’s
SWPPP” shall have the meaning set forth in Section
28(x).


“Purchaser”
shall have the meaning set forth in the Recitals.


“Rangeview”
shall have the meaning set forth in Section 16(a).


“Representatives”
shall have the meaning set forth in Section 28(bb).


“SDF”
shall have the meaning set forth in Section
16(c)(iii).


“Second
Closing” shall have the meaning set forth in Section
1.


“Seller
Caused Exception” shall have the meaning set forth in
Section 4(b).


“Seller
Cure Period” shall have the meaning set forth in
Section 4(b).


“Seller
Documents” shall have the meaning set forth in Section
10(a).


“Seller
Party” or “Seller Parties” shall
have the meaning set forth in Section 10(h).



 

iv







 






“Seller’s
Actual Knowledge” shall have the meaning set forth in
Section 11(h).


“Seller’s
Condition Precedent” shall have the meaning set forth
in Section 6(a).


“Seller’s
Representations” shall have the meaning set forth in
Section 11.


“Seller”
shall have the meaning set forth in the Recitals.


“SFD
45’ Lots” shall have the meaning set forth in
the Recitals.


“Sidewalks”
shall have the meaning set forth in Exhibit C, Section
2.


“Sky
Ranch” shall have the meaning set forth in the
Recitals.


"Substantially
Complete" or "Substantial Completion" shall
have the meaning set forth in Section 5(b).


“Survey”
shall have the meaning set forth in Section 4(a).


“SWPPP”
shall have the meaning set forth in Section 28(x).


 “Takedown
1 Closing Date” shall have the meaning set forth in
Section 8(b).


“Takedown
1 Lots” shall have the meaning set forth in the
Recitals.


“Takedown
2 Closing Date” shall have the meaning set forth in
Section 8(b).


“Takedown
2 Closing” shall have the meaning set forth in Section
8(b).


“Takedown
2 Lots” shall have the meaning set forth in the
Recitals.


“Takedown
Commitment” shall have the meaning set forth in
Section 4(b).


“Takedown”
shall have the meaning set forth in the Recitals.


“Tap
Purchase Agreement” shall have the meaning set forth
in Section 16(a).


“Title
Company” shall have the meaning set forth in Section
4(a).


“Title
Objections” shall have the meaning set forth in
Section 4(a).


“Tree
Lawns” shall have the meaning set forth in Exhibit C,
Section 2.


 


 




 

v








 







CONTRACT FOR PURCHASE



AND SALE OF REAL ESTATE


 


THIS
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE (this "Contract")
is entered into as of the last date of the signatures hereto (the
"Effective
Date"), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company ("Seller"),
and TAYLOR MORRISON OF COLORADO, INC., a Colorado corporation
("Purchaser").


 


WHEREAS, Seller is
developing a master planned residential community to be known as
"Sky
Ranch" which is located in Arapahoe County, Colorado
(“County”).
The Sky Ranch master planned residential community may also be
referred to herein as the "Development".
The preliminary concept map for Phase A of the Development is
depicted on Exhibit A
attached hereto. The Development is being platted in several
subdivision filings and developed in phases. Each subdivision
filing is hereinafter sometimes respectively referred to as a
“Filing”
and collectively as “Filings”.


 


WHEREAS, Seller
desires to sell to Purchaser, and Purchaser desires to purchase and
obtain from Seller, approximately 161 platted single family
detached residential lots (individually referred to as a
"Lot" and
collectively as the "Lots") in
the Development which will be finished in accordance with this
Contract and which will be used for the construction of single
family residential dwellings upon the terms and conditions set
forth in this Contract.


 


WHEREAS, Seller is
selling platted residential lots within the Development to multiple
homebuilders, including Purchaser. The Lots to be sold by Seller
and acquired by Purchaser that are located within the Development
shall be hereinafter collectively referred to as the "Property."
The Lots will be conveyed at one or more Closings as more
particularly provided herein and each such Closing may be referred
to herein as a “Takedown.”
The Lots which are to be conveyed at the first Closing shall be
sometimes hereinafter collectively referred to as the "Takedown 1
Lots"; the Lots which are to be conveyed at the second
Closing shall be sometimes hereinafter collectively referred to as
the "Takedown 2
Lots"; and the Lots which are to be conveyed at the third
Closing shall be sometimes hereinafter collectively referred to as
the "Takedown 3
Lots".


 


WHEREAS, as of the
Effective Date, the Lots have not been subdivided pursuant to a
recorded final subdivision plat. The number and location of the
Lots to be acquired by Purchaser are generally depicted on the
preliminary concept map for Phase A of the Development attached
hereto as Exhibit A (the
"Lotting
Diagram"). The precise number, dimension and location of the
Lots will be established at the time the subdivision plat for such
Lots is approved by the County and/or any other relevant
governmental authority (collectively, the "Authorities"
and each an “Authority”).
As of the Effective Date, the parties anticipate that Purchaser
will acquire approximately 161 Lots that are approximately 45 feet
wide by approximately 110 feet deep for the construction of single
family detached homes (“SFD 45’
Lots”).


 


WHEREAS, following
Purchaser’s acquisition of Lots, Seller will construct
certain infrastructure improvements for the Lots as described on
Exhibit C attached hereto
(the "Finished Lot
Improvements") pursuant to a lot development agreement
executed by Seller and Purchaser in the form set forth on
Exhibit F ("Lot Development
Agreement").

 

 



 

1







 





1. Purchase and Sale

 


. The
Property shall be purchased at three (3) Closings. Subject to the
terms and conditions of this Contract, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, on or
before the dates set forth in Section 6(b) below, the Lots in each
Takedown, as generally depicted on the Lotting Diagram and as
follows:


 


At the
Takedown 1 Closing (“First
Closing”), fifty (50) SFD 45’ Lots;

 


At the
Takedown 2 Closing (“Second
Closing”), fifty (50) SFD 45’ Lots;

 


At the
Takedown 3 Closing (“Third
Closing”), sixty-one (61) SFD 45’
Lots.

 


Notwithstanding the
foregoing, however, the parties acknowledge and agree that the
Parties shall negotiate during the Due Diligence Period to reach
agreement on a mutually acceptable site plan for the Lots
(“Final Lotting
Diagram”) and that the exact number and location of
the Lots within each Takedown are subject to adjustment based upon
the approval by the Authorities of the Final Plat (as hereinafter
defined) that includes the Lots to be acquired by Purchaser at each
Takedown. The precise number, dimension (subject to the provisions
of this Contract), location and legal description of the Lots will
be established at the time the Final Plat for such Lots is approved
by the County and/or any other Authority, and upon approval of each
such Final Plat the parties shall execute an amendment to this
Contract setting forth the legal description of those Lots included
in the approved Final Plat.

 

2. Purchase Price.
The
purchase price to be paid by Purchaser to Seller for each Lot (the
"Purchase
Price") shall consist of the Initial Purchase Price (as
hereinafter defined) and the Deferred Purchase Price (as
hereinafter defined). The Purchase Price for each Lot shall be
calculated as provided in the following Section 2(a) and shall be
subject to adjustment as provided in Section 2(b)
below:


 

(a) Purchase Price Payments. For
each Lot the Purchase Price shall be the sum of the
“Initial Purchase
Price” of Twenty Thousand and 00/100 Dollars
($20,000.00) paid by Purchaser to Seller by wire transfer or other
immediately available and collectible funds ("Good
Funds"), and the “Deferred Purchase
Price” of Forty Seven Thousand Five Hundred and 00/100
Dollars ($47,500.00) paid by Purchaser to Seller in Good Funds, for
a total of Sixty Seven Thousand Five Hundred and 00/100 Dollars
($67,500.00) per Lot (subject to adjustment as hereinafter provided
in Section 2(b) of this Agreement). The Deferred Purchase Price for
the Lots acquired by Purchaser at the First Closing shall be
secured by a letter of credit delivered by Purchaser into escrow at
the First Closing, the Deferred Purchase Price for the Lots
acquired by Purchaser at the Second Closing shall be secured by a
letter of credit delivered by Purchaser into escrow at the Second
Closing, and the Deferred Purchase Price for the Lots acquired by
Purchaser at the Third Closing shall be secured by a letter of
credit delivered by Purchaser into escrow at the Third Closing, as
more particularly described in Section 5(c) below.

 

(b) Purchase Price Escalator. The
Purchase Price of each Lot that is acquired at the Second Closing
of the Takedown 2 Lots and the Third Closing of the Takedown 3 Lots
will increase by an amount equal to the amount of simple interest
that would accrue thereon for the period elapsing between the date
that the First Closing occurs until the date the applicable Closing
occurs, at a per annum rate equal to two and one-half percent
(2.5%) (the “Escalator”).
By way of example and for clarification purposes only, if the
Purchase Price of a Lot at the Closing of the Takedown 1 Lots is
$67,500, then at a subsequent Closing occurring 12 months (365
days) following the date of the closing of the Takedown 1 Lots, the
Purchase Price for a Lot at such subsequent Closing will be
$69,187.50, which is calculated as follows: $67,500 + ($67,500 x
..025) = $69,187.50, $20,500 shall be payable as the Initial
Purchase Price for the Lots acquired at that subsequent
Closing.



 

2







 





 

3. Payment of Purchase
Price. The Purchase
Price for each of the Lots, as determined pursuant to Section 2 above, shall be payable as
follows:


 

(a) Earnest Money Deposit. Within
three (3) business days following the Effective Date, Purchaser
shall deliver to the Title Company (as defined in Section 4(a) hereof) an earnest money
deposit in the amount of $250,000.00. The Title Company will act as
escrow agent and invest the earnest money deposit in a federally
insured institution at the highest money market rate available. The
earnest money deposit and all interest earned thereon shall be
referred to herein as the "Deposit."
The Deposit shall be paid in Good Funds. The Deposit will be
applied to the Initial Purchase Price for the Takedown 3 Lots. If
this Contract is terminated prior to the expiration of the Due
Diligence Period for any reason, the Deposit shall be refunded to
Purchaser. If this Contract is terminated after the Due Diligence
Period and prior to the Deposit being fully applied to the Purchase
Price at the last Closing, the Deposit shall be paid to Seller,
except in the case of a termination of this Contract pursuant to a
provision that expressly entitles Purchaser to a refund of the
Deposit as provided elsewhere herein.

 

(b) Initial Purchase Price. That
portion of the Purchase Price for each Lot that is identified as
the Initial Purchase Price and calculated as provided in Section 2
above shall be paid by Purchaser to Seller in Good Funds at the
Closing that is applicable to the Lot.

 

(c) Deferred Purchase Price. That
portion of the Purchase Price for each Lot that is identified as
the Deferred Purchase Price in Section 2 above is due and payable
by Purchaser to Seller, as provided in and pursuant to the terms of
the Lot Development Agreement.

 

4. Seller’s
Title.


 

(a) Preliminary Title Commitment.
Within ten (10) business days after the Effective Date, Seller
shall furnish to Purchaser, at Seller’s expense, a current
commitment for a Title Policy (as defined below) for the Property
(the "Master
Commitment") issued by Land Title Guarantee Company
("Title
Company") as agent for First American Title Insurance
Company, together with copies of the instruments listed in the
schedule of exceptions in the Master Commitment. If the Master
Commitment contains any exceptions from coverage which are
unacceptable to Purchaser, then Purchaser shall object to the
condition of the Master Commitment in writing within forty-five
(45) days of Purchaser’s receipt of the Master Commitment
together with copies of all documents constituting exceptions to
title (the "Title
Objections"). Upon receipt of the Title Objections, Seller
may, at its option and at its sole cost and expense, clear the
title to the Property of the Title Objections within twenty (20)
days of receipt of the Title Objections. In the event Seller fails,
or elects not to clear the title to the Property of the Title
Objections on or before the date that is ten (10) days before the
expiration of the Due Diligence Period, the Purchaser, as its sole
remedy, may elect before the expiration of the Due Diligence Period
either: (i) to terminate this Contract, in which event the Deposit
shall be promptly returned to Purchaser, Purchaser shall deliver to
Seller all information and materials received by Purchaser from
Seller pertaining to the Property and any non-confidential and
non-proprietary information otherwise obtained by Purchaser
pertaining to the Property, and thereafter the parties shall have
no further rights or obligations under this Contract except as
otherwise provided in Section 12(c) below; or (ii) to
waive such objections and proceed with the transactions
contemplated by this Contract, in which event Purchaser shall be
deemed to have approved the title matters as to which its Title
Objections have been waived. If Purchaser fails to provide the
Title Objections prior to the expiration of the sixty (60) day
period required by this Section 4(a), Purchaser shall be deemed
to have elected to waive its objections as described in the
preceding clause. If Purchaser fails to notify Seller of its
election to terminate this Contract or waive it objections,
Purchaser shall be deemed to have elected to waive its objections
to any title matter that Seller has failed or elected not to cure.
Seller shall release at or prior to the applicable Closing any
monetary lien that Seller caused or created against the Property
with respect to that portion of the Property to be acquired at a
particular Closing other than non-delinquent real estate taxes and
assessments and Permitted Exceptions, and such monetary liens shall
not constitute Permitted Exceptions (as hereinafter defined). At
each Closing, without the need for Purchaser to object to the same
in Purchaser’s Title Objections, Seller shall execute and
deliver the Title Company's standard form mechanic's lien affidavit
(the “Lien
Affidavit”) in connection with the standard printed
exception for liens arising against the Lots purchased at the
Closing for work or materials ordered or contracted for by Seller,
and to the extent required by the Title Company a commercially
reasonable indemnity agreement (the “Title Company
Indemnity”), provided, however, if Purchaser
determines during the Due Diligence Period that the Title Company
refuses or is unwilling to delete the standard printed exception
for liens as part of extended coverage despite Seller’s offer
to execute and deliver the Lien Affidavit and Title Company
Indemnity, then Purchaser will have the right to terminate this
Contract on or before the expiration of the Due Diligence Period
whereupon the Deposit will be returned to Purchaser, or Purchaser
may proceed with the Closing in which event the Title Policy will
contain, and the Lots will be conveyed subject to, the standard
printed exception for liens unless the Title Company thereafter
agrees thereafter to delete such lien exception, however, the
Purchaser shall have no further termination rights if the Title
Company does not agree to do so. If the Title Company agrees during
the Due Diligence Period to delete the standard printed exception
for liens as part of extended coverage and thereafter the Title
Company refuses to delete the exception for liens based on
Seller’s offer to execute and deliver the Lien Affidavit and
Title Company Indemnity, then such exception shall be deemed a
Non-Seller Caused Exception (as hereinafter defined) to which
Purchaser shall have the right to object pursuant to Section 4(b). Seller shall
request that the Takedown Commitment (as hereinafter defined)
provide for the deletion of the other standard printed exceptions
from the Title Policy (provided that Seller's only obligation with
respect thereto shall be to provide a copy of Seller’s
existing survey ("Survey"), if
any, of the land that contains the Lots, obtain and furnish a plat
certification issued by a licensed surveyor, to execute the Title
Company’s standard form seller-owner final affidavit and
agreement as reasonably modified by Seller and as to Seller’s
acts only if such affidavit is required by the Title Company for
the purpose of deleting any exception for parties in possession
(“Owner’s
Affidavit”), and to execute the Title Company's Lien
Affidavit with respect to Seller's acts, in form and substance
reasonably acceptable to Seller). Seller has no obligation to
provide a new Survey or to update any existing Survey.



 

3







 





 

(b) Subsequently Disclosed
Exceptions. Not less than fifteen (15) days prior to the
applicable Closing, Purchaser may request that the Title Company
issue an updated title commitment for that portion of the Property
to be acquired at such Closing (each a "Takedown
Commitment"), together with copies of any additional
instruments listed in the schedule of exceptions which are not
reflected in the Master Commitment furnished pursuant to
Section
4(a) above or in any prior
Takedown Commitment. Additional items disclosed by a Takedown
Commitment or by an amendment to the Master Commitment that affect
title to the subject Property are referred to as
“New
Exceptions”. New Exceptions affecting title to the
subject Property that are allowed by the provisions of this
Contract are referred to as “Permissible New
Exceptions” and all other New Exceptions are referred
to as “Other New
Exceptions”. Purchaser has no right to object to any
Permissible New Exception. Other New Exceptions which do not
materially adversely affect title or use of a Lot shall also be
Permissible New Exceptions. Purchaser shall have a period of seven
(7) days from the date of its receipt of such Takedown Commitment
or amendment to the Master Commitment and a copy of the New
Exceptions (the "New Exception
Review Period") to review and to approve or disapprove any
Other New Exceptions. If the Other New Exception is unacceptable to
Purchaser, Purchaser shall object to the Other New Exception in
writing within seven (7) days from the date of Purchaser’s
receipt of the Takedown Commitment, together with a copy of the New
Exceptions (the "New Exception
Objection"). Upon receipt of the New Exception Objection,
Seller shall cure the New Exception Objection (by deletion,
insuring over or endorsement) to the extent that such Other New
Exception was caused or created by Seller and is not otherwise
permitted by this Contract ("Seller Caused
Exception"). If the New Exception Objection relates to an
Other New Exception that was not caused by Seller
(“Non-Seller Caused
Exception”), Seller may, at its sole discretion, cure
the New Exception Objection, within fifteen (15) days of receipt of
the New Exception Objection (“Seller Cure
Period”) and the applicable Closing Date will be
extended to accommodate the Seller Cure Period. In the event Seller
fails, or elects not to cure a Non-Seller Caused Exception within
such fifteen (15) day period, the Purchaser, as its sole remedy,
may elect within five (5) days after the end of the Seller Cure
Period either: (i) to terminate this Contract as to the Lots
affected by such New Exception, in which event the prorata portion
of the Deposit for such Lots shall be refunded to Purchaser and the
parties shall have no further rights or obligations under this
Contract as to such Lots; or (ii) to waive such objection and
proceed with the acquisition of the Lots in such Takedown, in which
event Purchaser shall be deemed to have approved the New Exception.
If Purchaser fails to notify Seller of its election to terminate
this Contract as to the applicable Lots in accordance with the
foregoing sentences within five (5) days after the expiration of
the Seller Cure Period (i) Purchaser shall be deemed to have
elected to waive its objections as described in the preceding
sentences (ii), and all such items shall be deemed to be
Permitted Exceptions.

 

(c) Permitted Exceptions; Additional
Easements. Seller shall convey title to the Lots included in
each Takedown of the Property to Purchaser at the Closing for such
Takedown subject to the Permitted Exceptions described in
Section 9 hereof. Prior to each such
Closing, Seller shall have the right, subject to the limitations
set forth below and in Exhibit
B and provided Seller shall advise and provide copies of
same to Purchaser promptly after Seller becomes aware of same, to
convey additional easements as Permissible New Exceptions to
utility and cable service providers, governmental or
quasi-governmental Authorities, metropolitan, water and sanitation
districts, homeowners associations or property owners associations
or other entities that serve the Development or adjacent property
for construction of utilities and other facilities to support the
Development or such adjacent property, including but not limited to
sanitary sewer, water lines, electric, cable, broad-band and
telephone transmission, storm drainage and construction access
easements across the Property not yet acquired by Purchaser,
allowing Seller or its assignees the right to install and maintain
sanitary sewer, water lines, cable television, broad-band,
electric, telephone and other utilities on the Property and on the
adjacent property owned by Seller and/or its affiliates, and
further, to accommodate storm drainage from the adjacent property.
Such easements shall require the restoration of any surface damage
or disturbance caused by the exercise of such easements, shall not
be located within the building envelope of any Lot, shall not
materially detract from the value, use or enjoyment of (i) the
Lots affected or the remaining portion of the Property on which
such easements are to be located, or (ii) any adjoining
property of Purchaser.



 

4







 





 

(d) Master Covenants. Prior to the
Takedown 1 Closing, Seller shall, subject to the limitations set
forth below, prepare covenants, conditions and restrictions for the
Development or the portion thereof in which the Property is located
(the "Master
Declaration") incorporating architectural and design
standards and guidelines, use limitations and restrictions and
which may establish an owners association or provide that the
District shall administer the Master Declaration, among other
matters, together with such supplemental declarations as may have
been or may be recorded to subject the Property to the provisions
of the Master Declaration (collectively, the "Master
Covenants"). Seller shall provide a draft of the Master
Covenants in substantially the form to be recorded to Purchaser for
Purchaser’s review within thirty (30) days after the
Effective Date. If the Master Covenants contain any provisions
which are unacceptable to Purchaser in Purchaser’s reasonable
discretion, Purchaser shall object to such provisions with
particularity in writing within ten (10) days of receipt of the
draft Master Covenants. Upon receipt of such objection, Seller may,
at its option, modify the objectionable provisions of the Master
Covenants within ten (10) days of receipt of such objection from
Purchaser. In the event Seller fails or elects in its discretion
not to modify the objectionable provisions of the Master Covenants
within such ten (10) day period, Purchaser shall have the right as
its sole remedy to elect either: (i) to terminate this Contract, in
which event the Deposit shall be promptly returned to Purchaser,
Purchaser shall deliver to Seller all information and materials
received by Purchaser from Seller pertaining to the Property and
any non-confidential and non-proprietary information otherwise
obtained by Purchaser pertaining to the Property, and thereafter
the parties shall have no further rights or obligations under this
Contract except as otherwise provided in Section 12(c) below; or (ii) to waive
any objections to the Master Covenants and proceed with the
transactions contemplated by this Contract, in which event
Purchaser shall be deemed to have approved the Master Covenants as
to which its objections have been waived. If Purchaser fails to
provide written notice to Seller of its objection to the Master
Covenants within ten (10) days of receipt of the draft Master
Covenants as required by this Section 4(d), Purchaser shall be deemed
to have elected to waive its objections as described in the
preceding clause and the Master Covenants shall be deemed to be
Permitted Exceptions. Seller shall be permitted to revise the
Master Covenants at any time before the First initial Closing under
this Contract without the consent of Purchaser, provided that any
such revision has no material adverse effect on the Lots acquired
or to be acquired by Purchaser.



 

5







 





 

(e) Title Policy. Within a
reasonable time after each Closing, Seller, at its expense, shall
cause the Title Company to deliver a Form 2006 ALTA extended
coverage owner’s policy of title insurance
(“Title
Policy”), insuring Purchaser’s title to the
Property conveyed at such Closing, pursuant to the applicable
Takedown Commitment and subject only to the Permitted Exceptions,
together with such endorsements as Purchaser may request and which
the Title Company agrees to issue during the Due Diligence Period,
and shall pay the premium for the basic policy at such Closing. The
Title Policy shall provide insurance in an amount equal to the
Purchase Price for all Lots purchased at such Closing. At each
Closing, Seller shall offer to execute and deliver a Lien Affidavit
and an Owner’s Affidavit, and shall obtain and furnish a plat
certification issued by a licensed surveyor, both as provided in
Section 4(a) above.
Purchaser shall pay any fees charged by the Title Company to delete
the standard pre-printed exceptions. Purchaser shall pay for the
premiums for any endorsements requested by Purchaser, except that
Seller shall pay for any endorsements that Seller agrees to provide
in order to cure a Title Objection.

 

5. Seller
Obligations. Seller shall have
the following obligations:


  

(a) Entitlements.

 

(i) Existing Entitlements. The
County previously approved the following entitlements for the
Property (collectively, the “Existing
Entitlement Documents”): a Preliminary Plat and a
Preliminary Development Plan. Seller shall provide a copy of the
Existing Entitlement Documents to Purchaser as part of the Seller.
Documents.

 

(ii) Platting and Entitlements.
Seller shall be responsible, at Seller's sole cost and expense, for
preparing and processing in a commercially reasonable manner and
timeframe, and diligently pursuing and obtaining Final Approval (as
defined below) from the County and any other appropriate Authority
and recording in the records of the Clerk and Recorder of the
County (the "County
Records"), as may be required, the following: (i) a specific
development plan that includes the Property (“SDP”);
(ii) an administrative site plan (“ASP”)
and final subdivision plat or plats for each Filing within the
Property (each a "Final
Plat"); (iii) the public improvement construction plans for
all onsite and offsite public improvements relating to such Final
Plat ("CDs"); and
(iv) the development or subdivision improvement agreement
associated with such Final Plat and other similar documentation
required by the Authorities in connection with approval of such
Final Plat and CDs (collectively, such documents are referred to,
with respect to each Takedown, as the "Final Subdivision
Documents" and together with the Existing Entitlement
Documents, collectively, the "Entitlements"
for such Takedown). The Final Subdivision Documents shall
substantially comply with the Final Lotting Diagram, and shall
provide that the Property contains approximately 161 Lots with each
of the Lots being approximately 45 feet wide by approximately 110
feet deep with a building envelope that is not less than 35’
wide (after taking into consideration applicable setbacks), and the
Final Subdivision Documents shall not impose new or additional
requirements upon Buyer the cost of which is expected to exceed
$3,000 for any Lot or limit or materially adversely affect the use
of any Lot for the construction of a residence thereon. Seller
shall use commercially reasonable efforts to have the Entitlements
for each Takedown, respectively, approved by the Authorities and
recorded as necessary in the County Records with applicable
governmental or third-party appeal or challenge periods applicable
to an approval decision of the Board of Commissioners or Planning
Commission having expired without any appeal then-pending
(“Final
Approval”). Seller shall use commercially reasonably
efforts to obtain Final Approval of the Entitlements on or before
nine (9) months after the expiration of the Diligence Period (or
any extensions thereof). If Final Approval of the Entitlements
applicable to the Takedown 1 Lots has not been achieved as
aforesaid on or before nine (9) months after the Effective Date,
then Seller, in its discretion, shall have the right to extend the
date for obtaining such Final Approval for a period not to exceed
six (6) months after the initial nine (9) month period by providing
written notice to Purchaser prior to the expiration of such nine
(9) month period. If Seller shall not secure such Final Approval of
the Takedown 1 Lots by the expiration of the initial nine (9) month
period and shall fail to exercise such extension, 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. If Seller extends the time
period for obtaining Final Approval of the Takedown 1 Lots, then
during such extended time period Seller shall 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 (unless Seller failed to use
commercially reasonable efforts to obtain Final Approval of such
Entitlements), but this Contract shall terminate 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. The timing
for Final Approval of the Entitlements for Takedowns after Takedown
1 is as set forth in Section 6(b)(i) hereof. During the approval
process, Seller shall keep Purchaser reasonably informed of the
process and the anticipated results therefrom and provide Purchaser
with copies of the Final Subdivision Documents as submitted to the
County and other reasonable documentation relating to same.
Purchaser, at no material cost to Purchaser (other than costs
incurred to obtain services that could reasonably be performed or
provided in-house), shall cooperate with Seller in Seller’s
efforts to obtain Final Approval of the Entitlements by the
County.



 

6







 





 

(iii) Lot Minimums for each Takedown.
The Final Plat(s) for the Property and the Lots are anticipated to
be in a form which is substantially consistent, with the Final
Lotting Diagram, subject to changes made necessary by the
Authorities and/or final engineering decisions which are necessary
to properly engineer, design, and install the improvements in
accordance with the requirements of the County and other applicable
Authorities.

 

(iv) Recordation of Final Plat. At
or before each Closing, Seller shall have caused to be recorded the
Final Plat that includes the Lots that are to be purchased at that
Closing. Seller shall be responsible for providing to the County
the bond or other financial assurance that is required by the
County to record each Final Plat. 



 

7







 





 

(b) Offsite Infrastructure. Seller
shall cause Rangeview and/or the District to install and construct
in a commercially reasonable manner, and diligently pursue to
substantial completion the offsite infrastructure improvements that
are identified and described on Exhibit D
attached hereto and incorporated herein by this reference
(collectively, the "Offsite
Infrastructure Improvements"). The Offsite Infrastructure
Improvements will be completed in a good, workmanlike and lien-free
manner, in accordance with the CDs, applicable laws, codes,
regulations and governmental requirements for the Development and
the requirements of this Agreement. Seller shall or shall cause
Rangeview and/or the District to use commercially reasonable
efforts to have the Offsite Infrastructure Improvements
Substantially Complete in accordance with the Schedule set forth on
Exhibit
D, subject to Force Majeure, which schedule will
substantially conform to the timing set forth in clause (10) of
Section 5(c)(ii) below. Rangeview will be constructing a new
wastewater reclamation facility (“WWRF”)
for the Development. As an addition to Purchaser’s Conditions
Precedent, Seller shall provide evidence to Purchaser that
Rangeview has received the necessary authorizations from the Water
Quality Control Division of the Colorado Department of Public
Health and Environment and from the County to construct the WWRF,
and has awarded a contract for the construction of the WWRF (such
authorizations and contract collectively, the “WWRF
Authorizations”). Without limiting the generality of
the foregoing, Purchaser specifically acknowledges and agrees that
the wastewater treatment plant currently planned as an Offsite
Infrastructure Improvement will not be Substantially Complete on or
before the date that Purchaser obtains its first building permit
for a Lot. Therefore, Seller shall provide as part of the Offsite
Infrastructure Improvements, at Seller’s sole cost, a
temporary alternative service for the processing of wastewater
sufficient for the issuance of building permits and certificates of
occupancy consisting of two sequential batch reactor basins with a
combined volume of 500,0000 gallons, along with appurtenant
facilities to mitigate the development of odors, that
Rangeview’s engineer will certify as having been constructed
in accordance with approved plans and specifications (the
“Alternative
Service”). The Alternative Service shall be
Substantially Complete and operational on or before the date
required for Substantial Completion of the other Offsite
Infrastructure Improvements set forth on Exhibit D so
that Purchaser can obtain building permits for the Lots, and shall
continue in operation until such time as the wastewater treatment
plant is Substantially Complete. Seller shall deposit into escrow
the costs to construct and operate the Alternative Service pursuant
to an Offsite Infrastructure Escrow Agreement. Seller will give
Purchaser written notice (“Completion
Notice”) when each Offsite Infrastructure Improvement
is Substantially Complete. During the construction process, Seller
shall keep Purchaser reasonably informed of the progress of the
construction of the Offsite Infrastructure. The term "Substantially
Complete" or "Substantial
Completion" means that the improvements have been completed
in accordance with the CD’s therefor and all other
requirements of this Agreement, Seller has requested or applied for
construction acceptance by the County or any other applicable
Authority having jurisdiction, Seller shall have posted all
financial assurances required by the County or any other applicable
Authority having jurisdiction to commence the warranty period, the
improvements may be used for their intended purpose, and Purchaser
will not be precluded from obtaining building permits for homes on
each of the Lots (thereafter Seller shall complete the improvements
so that Purchaser will not be precluded from obtaining the issuance
of certificates of occupancy following completion of homes as a
result of the degree of completion of the improvements). Seller
and/or Rangeview shall be responsible for obtaining final
acceptance by the County and any other applicable Authority having
jurisdiction in accordance with the requirements of the County or
other Authority. As an addition to Purchaser’s Conditions
Precedent, Seller shall on or before the First Closing (i) have
obtained Final Approval of the applicable Authorities of the CDs
for the Offsite Infrastructure Improvements; (ii) have obtained
development permits for the Offsite Infrastructure Improvements;
(iii) have executed the contracts for installation of the Offsite
Infrastructure Improvements providing for a guaranteed maximum
price, and (iv) have deposited funds into a controlled disbursement
account pursuant to one or more agreements (each an
“Offsite
Infrastructure Escrow Agreement” and in the plural
“Offsite
Infrastructure Escrow Agreements”) equal to the
contracted cost to Substantially Complete the Offsite
Infrastructure Improvements, which Seller and/or Rangeview shall
have the right to draw upon to pay for such Offsite Infrastructure
Improvements as constructed. The form of the Offsite Infrastructure
Escrow Agreement shall be subject to Purchaser’s review and
approval during the Due Diligence Period and if Purchaser is not
satisfied with such agreement for any reason, then
Purchaser’s sole remedy shall be to terminate this Agreement
under Section 10(a) and if Purchaser does not so terminate the
Agreement then the Offsite Infrastructure Escrow Agreement shall be
deemed approved. At Closing the Purchaser may become a party by
joinder to the Offsite Infrastructure Escrow Agreement solely with
respect to remedies for a Seller default in timely completing the
Offsite Infrastructure Improvements, including a step right if
Seller does not timely complete such improvements. Seller and
Purchaser agree that the Offsite Infrastructure Escrow Agreement
will provide that Richmond American Homes of Colorado (to the
extent that it has joined such Offsite Infrastructure Escrow
Agreement) shall have the first right to step-in and complete the
Offsite Infrastructure Improvements. In the event that Seller does
not complete any Offsite Infrastructure Improvements by the
required date (subject to Force Majeure), the Purchaser and all
other purchasers of Lots in the Development shall have the right as
their remedy to withdraw the necessary funds out of such escrow to
cause completion of the applicable Offsite Infrastructure
Improvements. Seller shall deliver the form of the Offsite
Infrastructure Escrow Agreement to Purchaser within 15 days
following the Effective Date. Seller is not obligated to install
any amenities related to the Community Park as part of the Offsite
Infrastructure or the Finished Lot Improvements, but Seller and
Purchaser agree to use good faith efforts during the Due Diligence
Period to establish the timing, financing and other relevant
details pertaining to the installation of amenities on the
Community Park.



 

8







 





 

(c) Finished Lot Improvements/Lot
Development Agreement.


 

(i) At the First
Closing, Purchaser and Seller shall enter into an agreement the
Lot Development
Agreement in the form attached as Exhibit F of
this Contract obligating Seller to construct and install the 
Finished Lot Improvements as described on Exhibit C
attached hereto. 


 

(ii) The Lot Development
Agreement includes, without limitation, provisions that provide for
the following: (1) phased completion of the Offsite Infrastructure
Improvements and the Finished Lot Improvements consisting of two
phases with respect to the Takedown 1 Lots and two subsequent
phases with respect to the Takedown 2 Lots for a total of four
phases; (2) the payment of the Deferred Purchase Price by Purchaser
as follows: For each phase, one-half of the Deferred Purchase Price
for the Lots in that phase shall be paid to Seller upon substantial
completion and construction acceptance by Rangeview of that portion
of the Finished Lot Improvements consisting of the water, sanitary
sewer and storm sewer infrastructure that is necessary to serve the
Lots in that phase, and the remaining one-half of the Deferred
Purchase Price for the Lots in that phase shall be paid to Seller
upon substantial completion of the balance of Finished Lot
Improvements that serve that phase to the extent necessary to
obtain building permits; (3) Seller’s and/or the
District’s obligation to post surety as required by the
County in connection with such phases; (4) provisions regarding
Seller’s and/or the District’s agreements with the
contractors who will construct the Finished Lot Improvements; (5)
Seller’s and/or the District’s warranty obligations, as
provided on Exhibit C;
(6) Seller’s obligation to obtain lien waivers and to
discharge mechanics liens related to construction of the Finished
Lot Improvements; (7) Purchaser step-in rights in the event of a
Seller and/or District default (as defined in the Lot Development
Agreement); (8) a license from Purchaser to permit construction of
the Finished Lot Improvements and performance of other related
activities on the Lots; (9) Seller’s obligation to pay
construction costs in excess of the Deferred Purchase Price; and
(10) a schedule providing for the first phase to be Substantially
Completed ten (10) months after the First Closing, with the second
phase to be Substantially Completed nine (9) months after
substantial completion of the first phase, with the third phase to
be Substantially Completed nine (9) months after the Second Closing
and the fourth phase to be Substantially Completed nine (9) months
after Substantial Completion of the third phase, all subject to
Force Majeure, and all subject to the terms and conditions of Lot
Development Agreement. The Seller, Purchaser, other builder(s)
affected by any improvements to be constructed under the Lot
Development Agreement that serve or benefit the Lots and other
property that is to be acquired by such other builder(s)
(“Joint
Improvements”) and the Title Company will at Closing
execute a “Joint Improvements
Memorandum” that describes the rights and obligations
of Seller, Purchaser, such other builder(s) and Title Company and
such document will supplement the Lot Development Agreement
regarding the installation and construction of any Joint
Improvements, including step-in rights consistent with the Offsite
Infrastructure Escrow Agreement. The form of the Joint Improvements
Memorandum shall be agreed upon during the Due Diligence Period and
attached to the Lot Development Agreement as Exhibit J thereto. If
such Joint Improvements Memorandum is not agreed upon during the
Due Diligence Period, then the Purchaser shall as its sole remedy,
has the right to terminate the Contract.



 

9







 






 

(iii) After obtaining
Final Approval of all necessary Entitlements for the applicable
Lots, Seller acting as the constructing party under the Lot
Development Agreement shall commence and diligently pursue
completion or cause to be completed for the Lots being purchased
and acquired by Purchaser at each Closing, subject to Force
Majeure, the Finished Lot Improvements in accordance with the
phasing, provisions and schedules of the Lot Development Agreement
and all applicable laws, codes, regulations and governmental
requirements for the Lots.  Seller will notify Purchaser when
each phase of the Finished Lot Improvements have been Substantially
Completed. Seller’s failure to comply with the foregoing
covenant shall not constitute a default hereunder unless and until
such failure shall constitute an event of default (as defined in
the Lot Development Agreement) under the Lot Development
Agreement.


 

(iv) In order to secure
Purchaser’s obligation following each Closing to pay the
Deferred Purchase Price in accordance with the terms of this
Contract and the payment schedule set forth in the Lot Development
Agreement as described in Section 5(c) of this Contract, at each
Closing, Purchaser shall deliver to Title Company, acting as escrow
agent, a letter of credit issued by ____________________________ in
the form attached hereto as Exhibit G
(the “Letter of
Credit”) and in an amount equal to the sum of the
Deferred Purchase Price for all of the Lots acquired by Purchaser
at such Closing plus, for the Takedown 2 Lots and the Takedown 3
Lots, the Escalator thereon calculated pursuant to Section 2(b).
Title Company shall hold and maintain the Letter of Credit pursuant
to the Lot Development Agreement in an escrow account established
by Title Company for the benefit of Seller and Purchaser. The
Letter of Credit for each Closing shall remain in place until the
final payment of the Deferred Purchase Price applicable to such
Closing has been made to the Seller following Substantial
Completion of the Finished Lot Improvements which serve the Lots
acquired by Purchaser at such Closing. If the Letter of Credit is
scheduled to expire prior to the Substantial Completion of all of
such Lots, and Purchaser has not renewed the Letter of Credit at
least fifteen (15) days prior to the expiration date thereof, Title
Company is authorized and directed to draw down the full amount of
the Letter of Credit and deposit such funds in escrow to be used
solely for the payment of any unpaid Deferred Purchase Price. The
Letter of Credit may provide that it may be reduced from time to
time to the extent of payments of the Deferred Purchase Price made
by Purchaser for Finished Lot Improvements in accordance with the
terms, including the payment schedule, set forth in the Lot
Development Agreement and Section 5(c) of this Agreement. The
Letter of Credit for each Closing shall be returned to Purchaser,
together with an executed reduction certificate reducing the face
amount thereof to $0.00, upon payment in full of the Deferred
Purchaser Price for all of the Lots in such Closing. Failure by
Purchaser to pay any portion of the Deferred Purchase Price when
the same shall become due and payable, provided that at such
failure continues for a period of ten (10) days after the delivery
of written notice thereof from Seller to Purchaser, shall entitle
Seller to enforce the collection of the delinquent Deferred
Purchase Price by drawing upon the Letter of Credit or having the
Title Company draw upon the Letter of Credit, and in either event
the funds so drawn shall be paid to Seller as payment of any unpaid
Deferred Purchase Price and such failure to pay shall be deemed
cured. If Seller or Title Company is unable to draw upon the Letter
of Credit, Seller may protect and enforce its rights under this
Agreement pertaining to payment of the Deferred Purchase Price by
(i) such suit, action, or special proceedings as Seller shall deem
appropriate, including, without limitation, any proceedings for the
specific performance of any covenant or agreement contained in this
Agreement and the Lot Development Agreement or the enforcement of
any other appropriate legal or equitable remedy, or for the
recovery of actual damages (excluding consequential, punitive
damages or similar damages) caused by Purchaser’s failure to
pay the Deferred Purchase Price, including reasonable attorneys'
fees, and (ii) enforcing Seller’s lien rights under the Lot
Development Agreement. Seller’s remedies are non-exclusive.
The foregoing provisions regarding the Letter of Credit as security
for payment of the Deferred Purchase Price shall be included in the
Lot Development Agreement in the form of escrow
instructions.



 

10







 





 

6. Pre-Closing
Conditions

 


.

(a) Seller’s Conditions.
Seller’s obligations to close hereunder are contingent upon
satisfaction of the following condition ("Seller's Condition
Precedent"): (i) that Purchaser and other homebuilders are
under contract to purchase at least 200 of the residential lots in
the Development, and close the initial purchase of lots under some
or all of such purchase and sale agreements as determined by Seller
simultaneously. Seller agrees to use commercially reasonable, good
faith efforts to timely satisfy the Seller’s Condition
Precedent. If for any reason other than Seller’s fault or
exercise of its discretion, Seller’s Condition Precedent is
not satisfied on or before the date of the First Closing, Seller
may terminate this Contract (in which event the Deposit shall be
returned to Purchaser), or elect, by written notice to Purchaser at
least ten (10) days before the First Closing, to waive the
condition and proceed to Closing for the applicable Lots for the
applicable Takedown, or elect to extend the date of the applicable
deadline and the Closing for the applicable Lots for a period of
time not to exceed 60 days by giving written notice to Purchaser on
or before the Takedown 1 Closing Date, during which time Seller
shall use commercially reasonable efforts to cause such condition
to be satisfied. If Seller elects to extend the Takedown 1 Closing
Date and the Seller’s Condition Precedent is not satisfied as
of the last day of the 60-day extension period for any reason other
than Seller’s fault or exercise of its discretion, then
Seller shall elect within five (5) business days after the end of
such extension period to either terminate this Contract (in which
event the Deposit shall be returned to Purchaser), or elect to
waive the condition and proceed to Closing for the applicable Lots.
Failure to give notice as described above shall be an irrevocable
waiver of Seller’s right to terminate this Contract as to the
affected Takedown pursuant to this Section 6(a).

 

(b) Purchaser’s Conditions.
It shall be a condition precedent to Purchaser’s obligation
to close each Takedown, that the following conditions
(“Purchaser’s
Conditions Precedent”) have been
satisfied:



 

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(i) Final Approval of
the Entitlements for each respective Takedown by the County and all
other applicable Authorities and recordation of the Final Plat
thereof and such other Entitlements in the County Records as may be
required by the County on or before the applicable Closing Date, as
the same may be extended.

 

(ii) Seller’s
representations and warranties set forth herein shall be materially
true and correct as of each Closing.

 

(iii) The Title Company
shall be irrevocably and unconditionally committed (subject only to
Purchaser’s obligation to pay the portion of the Title Policy
premium for which Purchaser is responsible under this Contract and
satisfaction of any Title Company requirements applicable to
Purchaser) to issue to Purchaser the applicable Title Policy with
the endorsements as Purchaser may request and the Title Company
agrees in writing to issue prior to the expiration of the Due
Diligence Period, subject only to the Permitted Exceptions accepted
by Purchaser in accordance with the provisions of this
Contract.

 

(iv) The
Purchaser’s Condition Precedent in Section 5(b) regarding Offsite
Infrastructure Improvements has been satisfied.

 

(v) The
Purchaser’s Condition Precedent in Section 5(b) regarding the WWRF
Authorizations has been satisfied.

 

(vi) The Joint
Improvements Memorandum shall have been fully executed by all
required parties.

 


If the
Purchaser’s Conditions Precedent are not satisfied on or
before each respective Closing Date, Purchaser may: (1) waive the
unfulfilled Purchaser’s closing condition, (2) extend the
applicable Closing Date for up to thirty (30) days to allow more
time for Seller to satisfy the unfulfilled Purchaser’s
Condition Precedent, or (3) as its sole remedy hereunder terminate
this Contract as to such Takedown and any remaining Takedowns by
written notice to Seller, delivered on or before two (2) business
days after the applicable Closing Date, 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 made by Purchaser that has not been applied
to the Purchase Price for Lots already acquired by Purchaser shall
be returned to Purchaser. If Purchaser elects to extend the Closing
Date under (2) and the unsatisfied Purchaser’s Condition
Precedent is not satisfied as of the last day of the thirty (30)
day extension period, then Purchaser shall, as its sole remedy,
elect to waive or terminate under (1) or (3). Failure to give
notice as described above shall be an irrevocable waiver of
Purchaser’s right to terminate this Contract as to the
affected Takedown pursuant to this Section 6(b). If Purchaser
terminates or is deemed to terminate the Contract pursuant to this
paragraph, Seller may negate such termination by giving notice to
Purchaser that Seller has elected to extend the applicable Closing
Date by thirty (30) days for the purpose of continuing its efforts
to satisfy the unfulfilled Purchaser’s Condition Precedent,
so long a such notice is given within one (1) business day after
Purchaser’s termination, and Purchaser shall again have a
termination right pursuant to this Section if such condition is not
satisfied during the extended period.

 

7. Closing. "Closing"
shall mean the delivery to the Title Company of all applicable
documents and funds required to be delivered pursuant to
Section 8 hereof
and unconditional authorization of the Title Company to disburse,
deliver and record the same. The purchase of Lots at the closing of
a Takedown shall be deemed to be "Closed" when
the documents and funds required to be delivered pursuant to
Section 8
hereinafter have been delivered to the Title Company, and the Title
Company agrees to unconditionally to disburse, deliver and record
the same.



 

12







 





 

8. Closings; Closing
Procedures.


 

(a) On each respective
Closing Date, Purchaser shall purchase the number of Lots that
Purchaser is obligated to acquire hereunder in the applicable
Takedown.

 

(b) Closing Dates. The date of the
First Closing of the purchase and sale of the Takedown 1 Lots shall
be the date that is the later of ten (10) days after the date that
Final Approval of the Entitlements is obtained. Such date of
Closing is herein referred to as the "Takedown 1 Closing
Date." The date of the Second Closing of the purchase and
sale of the Takedown 2 Lots shall be the date that is twelve (12)
months after the date that the First Closing occurs or such other
date to which Seller and Purchaser may mutually agree. Such date of
Closing is herein referred to as the "Takedown 2 Closing
Date." The date of the Third Closing of the purchase and
sale of the Takedown 3 Lots shall be the date that is twelve (12)
months after the date that the Second Closing occurs or such other
date as Seller and Purchaser may mutually agree. Such date of
Closing is herein referred to as the "Takedown 3 Closing
Date." The term "Closing
Date" may be used to refer to each of the Takedown 1 Closing
Date, the Takedown 2 Closing Date and the Takedown 3 Closing Date.
If Purchaser desires to accelerate any of the Closing Dates,
Purchaser may request that a Closing Date be accelerated, and if
Seller is willing to do so in its sole and absolute discretion, the
parties will work together to prepare a mutually acceptable
amendment to this Contract to accommodate such request. Seller
shall have the right to extend the Takedown 1 Closing Date for up
to 60 days in order to satisfy Seller’s Condition Precedent
as provided in Section 6(a) of this Contract.

 

(c) Closing Place and Time. Each
Closing shall be held at 11:00 a.m. on the applicable Closing Date
at the offices of the Title Company or at such other time and place
as Seller and Purchaser may mutually agree.

 

(d) Closing Procedures. Each
purchase and sale transaction shall be consummated in accordance
with the following procedures:

 

(i) All documents to be
recorded and funds to be delivered hereunder shall be delivered to
the Title Company to hold, deliver, record and disburse in
accordance with closing instructions approved by Purchaser and
Seller;

 

(ii) At each Closing,
Seller shall deliver or cause to be delivered in accordance with
the closing instructions the following:  

 

(1) A special warranty
deed conveying the applicable portion of the Property to be
acquired at such Closing to Purchaser. The special warranty deed
shall contain a reservation of easements, minerals, mineral rights
and water and water rights, as well as other rights, as set forth
on Exhibit B. The special
warranty deed shall also be subject to non-delinquent general real
property taxes for the year of such Closing and subsequent years,
District assessments and the Permitted Exceptions.



 

13







 





 

(2) Payment (from the
proceeds of such Closing or otherwise) sufficient to satisfy any
encumbrance relating to the portion of the Property being acquired
at such Closing, required to be paid by Seller at or before the
time of Closing.

 

(3) A tax certificate
or other evidence sufficient to enable the Title Company to ensure
the payment of all general real property taxes and installments of
District assessments then due and payable for the portion of the
Property being acquired at such Closing.

 

(4) An affidavit, in a
form sufficient to comply with applicable laws, stating that Seller
is not a foreign person or a foreign corporation subject to the
Foreign Investment in Real Property Tax Act, and therefore not
subject to its withholding requirements.

 

(5) A certification or
affidavit to comply with the reporting and withholding requirements
for sales of Colorado properties by non-residents (Colorado
Department of Revenue Form DR-1083).

 

(6) A Lien
affidavit.

 

(7) A partial
assignment of declarant rights or builder rights under the Master
Covenants, assigning only the following declarant rights (to the
extent such rights are not automatically granted to Purchaser as a
“builder” by the terms of the Master Covenants) from
Seller to Purchaser: to maintain sales offices, construction
offices, management offices, model homes and signs advertising the
Development and/or Lots, and such other rights to which the parties
may mutually agree.

 

(8) The Tap Purchase
Agreement (as defined herein).

 

(9) A general
assignment to Purchaser in the form attached hereto as Exhibit E ("General
Assignment") with respect to the applicable
Lots.

 

(10) An Owner’s
Affidavit.

 

(11) The Lot Development
Agreement and the Joint Improvements Memorandum executed by
Seller.

 

(12) The Offsite
Infrastructure Escrow Agreement executed by Seller.

 

(13) Such other
documents as may be required to be executed by Seller pursuant to
this Contract or the closing instructions.

 

(iii) At each Closing,
Purchaser shall deliver or cause to be delivered in accordance with
the closing instructions the following:



 

14







 





 

(1) The Purchase Price
payable at such Closing, computed in accordance with Section 2 above, for the Lots being
acquired at such Closing, such payment to be made in Good
Funds.

 

(2) The Tap Purchase
Agreement.

 

(3) The Lot Development
Agreement and the Joint Improvements Memorandum executed by
Purchaser.

 

(4) The Offsite
Infrastructure Escrow Agreement executed by Purchaser.

 

(5) All other documents
required to be executed by Purchaser pursuant to the terms of this
Contract or the closing instructions.

 

(6) Payment of any
amounts due pursuant to Section 16 hereof.

 

(iv) At each Closing,
Purchaser and Seller shall each deliver an executed settlement
statement, which shall set forth all prorations, disbursements of
the Purchase Price and expenses applicable to such
Closing;

 

(v) The following
adjustments and prorations shall be made between Purchaser and
Seller as of each Closing:

 

(1) Real property taxes
and installments of District assessments, if any, for the
applicable portion of the Property for the year in which the
Closing occurs shall be prorated based upon the most recent known
rates, mill levy and assessed valuations; and such proration shall
be final.

 

(2) Seller shall pay
real property taxes and District assessments for years prior to the
year in which the Closing occurs.

 

(3) Purchaser shall pay
any and all recording costs and documentary fees required for the
recording of the deed.

 

(4) Seller shall pay
the base premium for the Title Policy and for any endorsement
Seller agrees to provide to cure a Title Objection, and Purchaser
shall pay the premium for any other endorsements requested by
Purchaser in accordance with Section 4 above, including an extended
coverage endorsement.

 

(5) Each party shall
pay one-half (1/2) of any closing or escrow charges of the Title
Company.

 

(6) All other costs and
expenses not specifically provided for in this Contract shall be
allocated between Purchaser and Seller in accordance with the
customary practice of commercial real estate transactions in
Arapahoe County, Colorado.



 

15







 





 

(vi) Possession of the
applicable portion of the Property being acquired at each Closing
shall be delivered to Purchaser at such Closing, subject to the
Permitted Exceptions.

 

9. Seller’s Delivery of
Title. At each Closing,
Seller shall convey title to the applicable portion of the
Property, together with the following items, to the extent that
they have been approved, or are deemed to have been approved by
Purchaser pursuant to the terms of this Contract (collectively, the
"Permitted
Exceptions"):


 

(a) all easements,
agreements, covenants, restrictions, rights-of-way and other
matters of record that affect title to the Property as disclosed by
the Master Commitment or any Takedown Commitment, or otherwise, to
the extent that such matters are approved or deemed approved by
Purchaser in accordance with Section 4 above or otherwise approved
by Purchaser (unless otherwise identified herein as an obligation,
fee or encumbrance to be assumed by Purchaser or which is otherwise
identified herein as a Purchaser obligation which survives such
Closing, the foregoing items, however, shall not include any
mortgages, deeds of trust, mechanic’s liens or judgment liens
arising by, through or under Seller, which monetary liens Seller
shall cause to be released or fully insured over by the Title
Company, to the extent they affect any portion of the Property, on
or prior to the date that such portion of the Property is conveyed
to Purchaser);

 

(b) the Entitlements,
including without limitation, the Final Plat applicable to the
Property being acquired at such Closing and all easements and other
terms, agreements, provisions, conditions and obligations as shown
thereon;

 

(c) the Master
Covenants;

 

(d) the inclusion of
the Property into the Sky Ranch Metropolitan District No. 5 (the
"District")
and such other special improvement districts or metropolitan
districts as may be disclosed by the Master Commitment or any
Takedown Commitment delivered to Purchaser pursuant to this
Contract;

 

(e) A Public
Improvement Fee Covenant with respect to construction and
installation of eligible public improvements on the Property, which
imposes a public improvement fee equal to a percentage (the
“PIF
Percentage”) of all sales that occur on the Property
that is one percentage point less than the total sales tax imposed
on taxable sales occurring in that portion of the City of Aurora,
Colorado located within the boundaries of the County and the PIF
Percentage of the cost of building materials (the "Public Improvement
Fee" or "PIF"). The
PIF will be collected by (i) all sellers or providers of goods or
services who engage in any PIF sales transactions within those
portions of the Development subject to the PIF Covenant from the
purchaser or recipient of such goods or services and (ii) by all
homebuilders, and then will be paid over to the PIF collection
agent. The PIF collection agent will receive and remit the Public
Improvement Fee to the Seller or District. PIF sales shall not
include the sale of residential improvements or any goods incident
to the sale of residential improvements.

 

(f) A reservation of
water and mineral rights as set forth on Exhibit B hereof;

 

(g) applicable zoning
and governmental regulations and ordinances;



 

16







 





 

(h) title exceptions,
encumbrances, or other matters arising by, through or under
Purchaser;

 

(i) items apparent upon
an inspection of the Property or shown or that would be shown on an
accurate and current survey of the Property; and

 

(j) any Permissible New
Exception and any other document required or permitted to be
recorded against the Property in the County Records pursuant to the
terms of this Contract.

 

10. Due Diligence Period; Acceptance of
Property; Release and Disclaimer.


 

(a) Feasibility Review. Within five
(5) business days following the Effective Date, Seller shall
deliver or make available (via electronic file share if available
in electronic form, otherwise at Seller’s office) to
Purchaser the following listed items to the extent in
Seller’s actual possession; if an item listed below is not in
Seller’s possession and not delivered or made available to
Purchaser, but is otherwise readily available to Seller, then
Purchaser may make written request to Seller to provide such item,
and Seller will use its reasonable efforts to obtain and deliver or
make such item available to Purchaser, but Seller will have no
obligation otherwise to obtain any item not in Seller’s
possession: (i) any environmental reports, soil reports and
certifications pertaining to the Lots, (ii) a copy of any
subdivision plat for the Property, (iii) engineering and
construction plans pertaining to the Lots, (iv) biological,
grading, drainage, hydrology and other engineering reports and
plans and engineering and constructions plans for offsite
improvements that are required to obtain building
permits/certificates of occupancies for single-family detached
residences constructed on the Lots; (v) any PUD, Development
Agreement, Site Development Plans and other approvals pertaining to
the Lots particularly and the Development generally; (vi) any
Special District Service Plans; (vii) any existing ALTA or other
boundary Survey of the Property; and (viii) copies of any
subdivision bonds or guarantees applicable to the Lots
(collectively, the "Seller
Documents"). Purchaser shall have a period expiring sixty
(60) calendar days following the Effective Date of this Contract
within which to review the same (the "Due Diligence
Period"). During the Due Diligence Period, Purchaser shall
have an opportunity to review and inspect the Property, all Seller
Documents and any and all factors deemed relevant by Purchaser to
its proposed development and the feasibility of Purchaser’s
intended uses of the Property in Purchaser’s sole and
absolute discretion (the "Feasibility
Review"). The Feasibility Review shall be deemed to have
been completed to Purchaser’s satisfaction only if Purchaser
gives written notice to Seller of its election to continue this
Contract ("Continuation
Notice") prior to the expiration of the Due Diligence
Period. If Purchaser fails to timely give a Continuation Notice or
if Purchaser gives a notice of its election to terminate, this
Contract shall automatically terminate, the Deposit shall be
promptly returned to Purchaser, Purchaser shall deliver to Seller
all information and materials received by Purchaser from Seller
pertaining to the Property and any non-confidential and
non-proprietary information otherwise obtained by Purchaser
pertaining to the Property and any information otherwise obtained
by Purchaser, and thereafter the parties shall have no further
rights or obligations under this Contract except as otherwise
provided in Section
24 below. Seller
will reasonably cooperate with Purchaser, at Purchaser’s cost
and at no cost and with no liability to Seller, (i) to assist
Purchaser in obtaining an updated or recertification of any of the
Seller Documents, (ii) to assist Purchaser in obtaining
reliance letters from any of the preparers of the Documents, and
(iii) to assist Purchaser in obtaining any consents that may
be required so that Purchaser may receive the benefits after
Closing of any agreements comprising the Seller Documents that
confer a benefit and are reasonably necessary for the
Purchaser’s proper and efficient development of the Property
for residential use, to the extent such are obtainable by
Purchaser.



 

17







 





 

(b) Approval of Property. If
Purchaser gives a Continuation Notice on or before the expiration
of the Due Diligence Period, except as otherwise provided in this
Section 10, Purchaser shall be deemed
to have approved the Property, the Development and the feasibility
of Purchaser’s intended uses of the Lots (subject to the
terms and conditions of Section 5 and Section 6 hereof). Such
approval shall be deemed to include, but shall not be limited to,
Purchaser’s approval of the following as to the
Property:

 

(i) The ability of
applicable utility companies to provide utility services to the
Property, including the quality, sizing and cost of such
services;

 

(ii) The soil and
environmental conditions of the Property;

 

(iii) All Seller
Documents delivered to Purchaser pursuant to this
Contract;

 

(iv) All of the
Permitted Exceptions;

 

(v) The financial
condition and other factors relevant to the operation of the
District;

 

(vi) Any property
owners’ association to be established pursuant to the terms
of the Master Covenants; and

 

(vii) Fitness for
Purchaser’s intended use, accessibility of roads, and the
condition and suitability for improvement and sale of the Lots,
subject to Seller’s obligations under this
Contract.

 

(c) Radon. Purchaser acknowledges
that radon gas and naturally occurring radioactive materials
(“NORM”)
each naturally occurs in many locations in Colorado. The Colorado
Department of Public Health and Environment and the United States
Environmental Protection Agency (the "EPA") have
detected elevated levels of naturally occurring radon gas in
residential structures in many areas of Colorado, including the
County and all of the other counties along the front range of
Colorado. The EPA has raised concerns with respect to adverse
effects on human health from long-term exposure to high levels of
radon and recommends that radon levels be tested in all Residences.
Purchaser acknowledges that Seller neither claims nor possesses any
special expertise in the measurement or reduction of radon or NORM.
Purchaser further acknowledges that Seller has not undertaken any
evaluation of the presence or risks of radon or NORM with respect
to the Property nor has it made any representation or given any
other advice to Purchaser as to acceptable levels or possible
health hazards of radon and NORM. SELLER HAS MADE NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE
PRESENCE OR ABSENCE OF RADON, NORM OR OTHER ENVIRONMENTAL
POLLUTANTS WITHIN THE PROPERTY OR THE RESIDENCES TO BE CONSTRUCTED
ON THE LOTS OR THE SOILS BENEATH OR ADJACENT TO THE PROPERTY OR THE
RESIDENCES TO BE CONSTRUCTED ON THE LOTS PRIOR TO, ON OR AFTER THE
CLOSING DATE. Purchaser, on behalf of itself and its successors and
assigns, hereby releases the Seller from any and all liability and
claims with respect to radon gas. Every home sales contract entered
in to by Purchaser with respect to subsequent sales of Lots shall
include any disclosures with respect to radon as required by
applicable Colorado law.



 

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(d) Soils. Purchaser acknowledges
that soils within the State of Colorado consist of both expansive
soils and low-density soils, and certain areas contain potential
heaving bedrock associated with expansive, steeply dipping bedrock,
which will adversely affect the integrity of a dwelling unit
constructed on a Lot if the dwelling unit and the Lot on which it
is constructed are not properly maintained.  Expansive soils
contain clay mineral, which have the characteristic of changing
volume with the addition or subtraction of moisture, thereby
resulting in swelling and/or shrinking soils.  The addition of
moisture to low-density soils causes a realignment of soil grains,
thereby resulting in consolidation and/or collapse of the soils.
 Purchaser agrees that it shall obtain a current geotechnical
report for the Property and an individual lot soils report for each
Lot containing design recommendations from a licensed geotechnical
engineer for all structures to be placed upon the Lot. Purchaser
shall require all homes to have engineered footing and foundations
consistent with results of the individual lot soils report for each
Lot and shall take reasonable action as shall be necessary to
ensure that the homes to be constructed upon the Lots shall be done
in accordance with proper design and construction techniques.
Purchaser shall also provide a copy of the geotechnical report for
the Property and the individual lot soils report for each Lot to
Seller within seven (7) days after Seller’s request for the
same, and agrees in the event that this Contract terminates for any
reason Purchaser shall use reasonable efforts to assign, without
liability or recourse to Purchaser, at Seller’s request, the
geotechnical report for the Property and the individual lot soils
report for each Lot to any subsequent homebuilder who enters into a
purchase and sale agreement with Seller to purchase all of a
portion of the Lots. SELLER HAS MADE NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRESENCE OR ABSENCE
OF EXPANSIVE SOILS, LOW-DENSITY SOILS OR DIPPING BEDROCK UPON THE
PROPERTY AND PURCHASER SHALL UNDERTAKE SUCH INVESTIGATION AS SHALL
BE REASONABLE AND PRUDENT TO DETERMINE THE EXISTENCE OF THE SAME.
Purchaser shall provide all disclosures required by C.R.S. Section
6-6.5-101 in every home sales contract entered in to by Purchaser
with respect to subsequent sales of a Lot to a homebuyer.
Purchaser, on behalf of itself and its successors and assigns,
hereby releases the Seller from any and all liability and claims
with respect to expansive and low-density soils and dipping bedrock
located within the Property.

 

(e)  Over Excavation. The Finished
Lot Improvements required for each Lot do not include any
“over excavation” or comparable preparation or
mitigation of the soil (the “Overex”)
on the Property and Purchaser shall have sole responsibility at
Purchaser’s sole expense with respect to the Overex and shall
have the right (pursuant to a license agreement to be provided by
Seller) to enter such Lots for the purposes of performing the
Overex; provided, however, that such entry shall be performed in a
manner that does not materially interfere with or result in a
material delay or an increase in the costs or any expenses in the
construction of the Finish Lot Improvements, and provided further
that Purchaser shall promptly repair any portion of the Lots and
adjacent property that is materially damaged by Purchaser or its
agents, designees, employees, contractors, or subcontractors in
performing the Overex. Purchaser shall obtain, at its cost, a
current geotechnical report for the Property and an individual lot
soils report for each Lot containing design recommendations from a
licensed geotechnical engineer for all structures to be placed upon
the Lot (“Purchaser’s
Geotechnical Reports”) shall not rely upon any
geotechnical or soils report furnished by Seller, and Seller shall
have no responsibility or liability with respect to the Overex,
Purchaser’s Geotechnical Reports or any matters related
thereto. The parties shall reasonably cooperate in coordinating
Purchaser’s completion of the Overex so that the Overex can
be properly sequenced with Seller’s completion of the
Finished Lot Improvements. In no event shall the Seller be liable
to Purchaser for any delay or costs or damages incurred by
Purchaser with respect to such Overex, even if caused by any delay
in installation of Finished Lot Improvements sequenced ahead of the
Overex. THE PARTIES ACKNOWLEDGE AND AGREE THAT SELLER IS NOT
PERFORMING ANY OVER-EXCAVATION OF THE LOTS AND THAT SELLER SHALL
HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO OR ARISING OUT OF ANY
OVER-EXCAVATION OF THE LOTS OR EXPANSIVE SOILS PRESENT ON THE LOTS
AND SELLER EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT TO ANY
OVER-EXCAVATION OF THE LOTS AND EXPANSIVE SOILS PRESENT ON THE
LOTS. PURCHASER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER
AND ITS SHAREHOLDERS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS,
AFFILIATES, SUCCESSORS AND ASSIGNS FOR, FROM AND AGAINST ALL
CLAIMS, DEMANDS, LIABILITIES, LOSSES, DAMAGES (EXCLUSIVE OF
SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR LOST PROFITS
DAMAGES), COSTS AND EXPENSES, INCLUDING BUT NOT LIMITED TO COURT
COSTS AND REASONABLE ATTORNEYS’ FEES, ARISING OUT OF ANY
EXPANSIVE SOILS, OVER-EXCAVATION OR OTHER SOIL MITIGATION OR
PURCHASER’S ELECTION NOT TO PERFORM SOILS MITIGATION, ON OR
PERTAINING TO PURCHASER’S LOTS. THE PROVISIONS OF THIS
SECTION SHALL EXPRESSLY SURVIVE THE EXPIRATION OR TERMINATION OF
THIS CONTRACT.



 

19







 





 

(f) No Reliance on Documents.
Except as expressly stated in this Contract and/or expressly set
forth in the documents executed by Seller at Closing, Seller makes
no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information (including,
without limitation, the Seller Documents) delivered by Seller or
its brokers or agents to Purchaser in connection with the
transaction contemplated hereby. Except as otherwise provided in
this Contract and/or expressly set forth in the documents executed
by Seller at Closing, all materials, data and information delivered
by Seller to Purchaser in connection with the transaction
contemplated hereby are provided to Purchaser as a convenience only
and any reliance on or use of such materials, data or information
by Purchaser shall be at the sole risk of Purchaser, except as
otherwise expressly stated herein. The Seller Parties shall not be
liable to Purchaser for any inaccuracy in or omission from any such
reports. Purchaser hereby represents to Seller that, to the extent
Purchaser deems the same to be necessary or advisable for its
purposes, and without waiving the right to rely upon the covenants,
agreements, representations and warranties expressly contained in
this Agreement and/or expressly set forth in the documents executed
by Seller at Closing: (i) Purchaser has performed or will perform
an independent inspection and investigation of the Lots and has
also investigated or will investigate the operative or proposed
governmental laws, ordinances and regulations to which the Lots may
be subject, and (ii) Purchaser shall acquire the Lots solely upon
the basis of its own or its experts' independent inspection and
investigation, including, without limitation, (a) the quality,
nature, habitability, merchantability, use, operation, value,
fitness for a particular purpose, marketability, adequacy or
physical condition of the Lots or any aspect or portion thereof,
including, without limitation, appurtenances, access, landscaping,
parking facilities, electrical, plumbing, sewage, and utility
systems, facilities and appliances, soils, geology and groundwater,
(b) the dimensions or sizes of the Lots, (c) the development or
income potential, or rights of or relating to, the Lots, (d) the
zoning or other legal status of the Lots or any other public or
private restrictions on the use of the Lots, (e) the compliance of
the Lots with any and all applicable codes, laws, regulations,
statutes, ordinances, covenants, conditions and restrictions, (f)
the ability of Purchaser to obtain any necessary governmental
permits for Purchaser's intended use or development of the Lots,
(g) the presence or absence of Hazardous Materials on, in, under,
above or about the Lots or any adjoining or neighboring property,
(h) the condition of title to the Lots, or (i) the economics of, or
the income and expenses, revenue or expense projections or other
financial matters, relating to the Lots, except as provided in any
express representations/warranties and/or covenants contained in
this Contract.



 

20







 





 

(g) As Is. Except for
Seller’s Representations (as defined in Section 11 hereof) and
Seller’s performance of its obligations under this Contract,
Purchaser acknowledges and agrees that it is purchasing the
Property based on its own inspection and examination thereof, and
Seller shall sell and convey to Purchaser and Purchaser shall
accept the property on an “AS IS, WHERE IS, WITH ALL FAULTS,
LIABILITIES, AND DEFECTS, LATENT OR OTHERWISE, KNOWN OR
UNKNOWN” basis in an "AS IS" physical condition and in an "AS
IS" state of repair (subject to the Finished Lot Improvements
obligation set forth in Section (iv) hereof). Except as
expressly contained in this Contract, the special warranty deed to
be delivered at each Closing and Seller’s Representations, to
the extent not prohibited by law the Purchaser hereby waives, and
Seller disclaims all warranties of any type or kind whatsoever with
respect to the Property, whether express or implied, direct or
indirect, oral or written, including, by way of description, but
not limitation, those of habitability, fitness for a particular
purpose, and use. Without limiting the generality of the foregoing,
Purchaser expressly acknowledges that, except as otherwise provided
in this Contract, the Seller’s Representations, the special
warranty deed to be delivered at each Closing, Seller makes no
representations or warranties concerning, and hereby expressly
disclaims any representations or warranties concerning the
following: (i) The value, nature, quality or condition of the
Property; (ii) Any restrictions related to development of the
Property; (iii) The applicability of any governmental requirements;
(iv) The suitability of the Property for any purpose whatsoever;
(v) The presence in, on, under or about the Property of any
Hazardous Material or any other condition of the Property which is
actionable under any Environmental Law (as such terms are defined
in this Section 10; (vi) Compliance of the
Property or any operation thereon with the laws, rules, regulations
or ordinances of any applicable governmental body; or (vii) The
presence or absence of, or the potential adverse health, economic
or other effects arising from, any magnetic, electrical or
electromagnetic fields or other conditions caused by or emanating
from any power lines, telephone lines, cables or other facilities,
or any related devices or appurtenances, upon or in the vicinity of
the Property.

 


EXCEPT
FOR REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE
EXPRESSLY SET FORTH IN THIS CONTRACT OR OTHERWISE PROVIDED IN THIS
CONTRACT AND/OR EXPRESSLY SET FORTH IN THE CLOSING DOCUMENTS,
SELLER SHALL NOT BE LIABLE TO PURCHASER FOR ANY CONSTRUCTION
DEFECT, ERRORS, OMISSIONS, OR ON ACCOUNT OF SOILS CONDITIONS OR ANY
OTHER CONDITION AFFECTING THE PROPERTY, INCLUDING, BUT NOT LIMITED
TO, THOSE MATTERS DESCRIBED ABOVE AND PURCHASER AND ANYONE CLAIMING
BY, THROUGH OR UNDER PURCHASER, HEREBY FULLY RELEASES SELLER, ITS
PARTNERS, EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES,
ATTORNEYS AND AGENTS (BUT NOT INCLUDING ANY THIRD PARTY
PROFESSIONAL SERVICE PROVIDERS [E.G., ENGINEERS, ETC.], CONTRACTORS
OR SIMILAR FIRMS OR PERSONS) FROM ANY AND ALL CLAIMS AGAINST ANY OF
THEM FOR ANY COST, LOSS, LIABILITY, DAMAGE, EXPENSE, DEMAND, ACTION
OR CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION, ANY RIGHTS OF
CONTRIBUTION) ARISING FROM OR RELATED TO ANY CONSTRUCTION DEFECTS,
ERRORS, OMISSIONS, OR OTHER CONDITIONS AFFECTING THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, THOSE MATTERS DESCRIBED ABOVE AND
INCLUDING ANY ALLEGED NEGLIGENCE OF SELLER.



 

21







 





 


As used
herein, "Hazardous
Materials" shall mean, collectively, any chemical, material,
substance or waste which is or hereafter becomes defined or
included in the definitions of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic
pollutants," "pollutant" or "contaminant," or words of similar
import, under any Environmental Law, and any other chemical,
material, substance, or waste, exposure to, disposal of, or the
release of which is now or hereafter prohibited, limited or
regulated by any governmental or regulatory authority or otherwise
poses an unacceptable risk to human health or the
environment.


 


As used
herein, "Environmental
Laws" shall mean all applicable local, state and federal
environmental rules, regulations, statutes, laws and orders, as
amended from time to time, including, but not limited to, all such
rules, regulations, statutes, laws and orders regarding the
storage, use and disposal of Hazardous Materials and regarding
releases or threatened releases of Hazardous Materials to the
environment.

 

(h) Release. Purchaser agrees that,
subject to the Seller’s Representations, Seller shall not be
responsible or liable to Purchaser for any defects, errors or
omissions, or on account of geotechnical or soils conditions or on
account of any other conditions affecting the Property, because
Purchaser is purchasing the Property AS IS, WHERE-IS, and WITH ALL
FAULTS. Purchaser, or anyone claiming by, through or under
Purchaser, hereby fully releases Seller, Seller’s affiliates,
divisions and subsidiaries and their respective managers, members,
partners, officers, directors, shareholders, affiliates,
representatives and employees (the “Seller
Parties” and each as a “Seller
Party”) from, and irrevocably waives its right to
maintain, any and all claims and causes of action that it or they
may now have or hereafter acquire against the Seller Parties for
any cost, loss, liability, damage, expense, demand, action or cause
of action arising from or related to any defects, errors, omissions
or other conditions affecting the Property, except to the extent
that such loss or other liability results from a breach of the
Seller’s Representations. Purchaser hereby waives any
Environmental Claim (as defined in this Section) which it now has
or in the future may have against Seller, provided however, such
waiver shall not apply to activities to be performed by the Seller
in accordance with the applicable Lot Development Agreement. The
foregoing release and waiver shall be given full force and effect
according to each of its express terms and provisions, including,
but not limited to, those relating to unknown and suspected claims,
damages and causes of action. The foregoing release and waiver
shall not apply to any cost, loss, liability, damage, expense,
demand, action or cause of action arising from or related to (i)
fraud or other intentional misconduct of any Seller Party, or (ii)
any claims against contractors or subcontractors for construction
defects in the Finished Lot Improvements.



 

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As used
herein, "Environmental
Claim" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives,
claims, liens, investigations, proceedings or notices of
noncompliance or violation, whether written or oral, by any person,
organization or agency alleging potential liability, including
without limitation, potential liability for enforcement,
investigatory costs, cleanup costs, governmental response costs,
removal costs, remedial costs, natural resources damages, property
damages, including diminution of the market value of the Property
or any part thereof, personal injuries or penalties arising out of,
based on or resulting from the presence or release into the
environment of any Hazardous Materials at any location, or
resulting from circumstances forming the basis of any violation or
alleged violation of any Environmental Laws, and any and all claims
by any person, organization or agency seeking damages,
contribution, indemnification, costs, recovery, compensation or
injunctive relief resulting from the presence or release of any
Hazardous Materials.

 

(i) Indemnification. Purchaser
shall indemnify, defend (with counsel reasonably selected by
Purchaser with Seller approval) and hold harmless the Seller
Parties of, from and against any and all claims, demands,
liabilities, losses, expenses, damages, costs and reasonable
attorneys’ fees that any of the Seller Parties may at any
time incur by reason of or arising out of: (i) any work performed
in connection with or arising out of Purchaser’s activities,
or Purchaser’s acts or omissions with respect to any Overex
work, (ii) Purchaser’s failure to perform its work on the
Property in accordance with applicable laws, and (iii) either
personal injuries or property damage occurring after the Closing by
reason of or arising out of the geologic, soils or groundwater
conditions on the Property acquired by Purchaser, (iv)
Purchaser’s or its successor’s development,
construction, use, ownership, management, marketing or sale
activities associated with the Lots (including, without limitation,
land development, grading, excavation, trenching, soils compaction
and construction on the Lots performed by or on behalf of Purchaser
(including, but not limited to, by all subcontractors and
consultants engaged by Purchaser); (v) the soils, subsurface
geologic, groundwater conditions or the movement of any home
constructed on the Lots after a Closing; (vi) the design,
engineering, structural integrity or construction of any homes
constructed on the Lots after a Closing; or (vii) any claim
asserted by Purchaser’s homebuyers or their successors in
interest. The foregoing indemnity obligation of Purchaser includes
acts and omissions of Purchaser and all agents, consultants and
other parties acting for or on behalf of Purchaser
(“Purchaser
Parties”). Notwithstanding the foregoing, Purchaser is
not required by this indemnification provision to indemnify the
Seller against (i) Seller's failure to perform its obligations
under this Contract or under any of the Closing documents, (ii)
Seller's breach of an express warranty or representation set forth
in this Contract or in any of the Closing Documents, or (iii)
claims arising directly from the decisions of Seller acting in its
capacity as declarant under the Declaration; and further provided
that Purchaser is not required to indemnify consultants,
contractors and subcontractors who contract with Seller and who
perform services or supply labor, materials, equipment, and other
work relating to geotechnical or soils conditions on the Lots that
is necessary for the Lots to satisfy the requirements set forth
herein.

 

(j)   The
provisions of this Section 10 shall survive each Closing
and the delivery of each respective deed to the
Purchaser.

 

11. Seller’s
Representations. Seller hereby
represents and warrants to Purchaser as follows (the following
Subsections (a) through (j) collectively referred to herein as
"Seller’s
Representations"):



 

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(a) Organization. Seller is a
corporation duly organized and validly existing under the laws of
the State of Colorado.

 

(b) Litigation. To Seller’s
Actual Knowledge (as defined in this Section 11), there is no
pending or threatened litigation which could materially adversely
affect the Property.

 

(c) Bankruptcy. There are no
attachments, levies, executions, assignments for the benefit of
creditors, receiverships, conservatorships, or voluntary or
involuntary proceedings in bankruptcy, or any other debtor relief
actions contemplated by Seller or filed by Seller, or to
Seller’s knowledge, pending in any current judicial or
administrative proceeding against Seller.

 

(d) Non-Foreign Person. Seller is
not a "foreign person" as that term is defined in Section 1445
of the Internal Revenue Code of 1986, as amended, and applicable
regulations.

 

(e) Condemnation. Seller has
received no written notice of any pending or threatened
condemnation or eminent domain proceedings which may affect the
Property or any part thereof.

 

(f) Execution and Delivery. The
execution, delivery and performance of this Contract by Seller does
not and will not result in a breach of, or constitute a default
under, any indenture, loan or credit agreement, mortgage, deed of
trust or other agreement to which Seller is a party. The
individual(s) executing this Agreement and the instruments
referenced herein on behalf of Seller have the legal power, right
and actual authority to bind Seller to the terms hereof and
thereof.

 

(g) Default. To Seller’s
Actual Knowledge, Seller has not defaulted under any covenant,
restriction or contract affecting the Property, nor has Seller
caused by its act or omission an event to occur which would with
the passage of time constitute a breach or default under such
covenant, restriction or contract.

 

(h) Violation of Law. To
Seller’s Actual Knowledge, Seller has not received any
written notice of non-compliance, addressed to Seller, from a
regulatory agency that has jurisdiction over the Property with
respect to any federal, state or local laws, codes, ordinances or
regulations relating to the Property.

 

(i) Rights. Seller has not granted
to any party, other than Purchaser hereunder, any option, contract,
right of refusal or other agreement with respect to a purchase or
sale of the Property. To Seller’s actual knowledge, there are
no leases, occupancy agreements, easements, licenses or other
agreements which grant third-parties any possessory or usage rights
to all or any part of the Property, except as disclosed in the
Master Commitment, and Takedown Commitment or the Seller
Documents.

 

(j) Environmental. To
Seller’s Actual Knowledge, neither Seller nor any third party
has used Hazardous Materials on, from, or affecting the Property in
any manner which violates federal, state, or local laws,
ordinances, rules, regulations, or policies governing the use,
storage, treatment, transportation, manufacture, refinement,
handling, production, or disposal of Hazardous Material, except as
may be disclosed in the Seller Documents.



 

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For
purposes of the foregoing, the phrase "Seller’s
Actual Knowledge" shall mean the current, actual, personal
knowledge of Mark Harding as President of Seller, without any duty
of investigation or inquiry and without imputation of any other
person’s knowledge. The fact that reference is made to the
personal knowledge of the above identified individual shall not
render such individual personally liable for any breach of any of
the foregoing representations and warranties; rather,
Purchaser’s sole recourse in the event of any such breach
shall be against Seller, and Purchaser hereby waives any claim or
cause of action against the above identified individual arising
from Seller’s Representations. Seller and Purchaser shall
notify the other in writing immediately if any Seller’s
Representation becomes untrue or misleading in light of information
obtained by Seller or Purchaser after the Effective Date. In the
event that Purchaser elects to close and Purchaser has actual
knowledge (meaning the current, actual, personal knowledge of Tom
Hennessy, without any duty of investigation or inquiry and without
imputation of any other person’s knowledge) that any of
Seller’s Representations are untrue or misleading, or of a
breach of any of Seller’ Representations prior to the
Closing, without the duty of further inquiry, Purchaser shall be
deemed to have waived any right of recovery with respect to the
matter actually known by Purchaser, and Seller shall not have any
liability in connection therewith.


 


Seller’s
Representations shall survive each respective Closing for a period
of six (6) months, except that any claim for which legal action is
filed within such time period shall survive until resolution of
such action, and except to the extent of any matter that is waived
by Purchaser pursuant to the previous paragraph (and any such
matter waived pursuant to the previous paragraph shall not survive
Closing).


 


Seller
makes no promises, representations or warranties regarding the
construction, installation or operation of any amenities within the
Development, including without limitation, club houses, swimming
pools and sports courts. To the extent that any development plans,
site plans, rendering, drawings, marketing information or other
materials related to the Development include, depict or imply the
inclusion of any amenities in the Development, they are included
only to illustrate possible amenities for the Development that may
or may not be built and Purchaser shall not rely upon any such
materials regarding the construction, installation or operation of
any amenities within the Development.


 

12. Purchaser’s
Obligations. Purchaser shall
have the following obligations, each of which shall survive each
respective Closing and, where noted, termination of this Contract.
Notwithstanding any contrary provision set forth in this Contract,
Seller shall have the right to enforce said obligations by means of
any legal or equitable proceedings including, but not limited to,
suit for actual damages and equitable relief:


 

(a) Master Covenants. Purchaser
shall comply with all obligations applicable to Purchaser under the
Master Covenants.

 

(b) Compliance with Laws. With
respect to Purchaser’s entry onto the Property and following
each Closing, Purchaser shall comply with and abide by all laws,
ordinances, statutes, covenants, rules and regulations, building
codes, permits, association documents and other recorded
instruments (as they are from time to time amended, supplemented or
changed) which regulate any activities relating to
Purchaser’s use, ownership, construction, sale or
investigation of any Lot or any improvements thereon.



 

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(c) Entry Prior to Closing. From
and after the Effective Date of this Contract until the Closing
Date or earlier termination of this Contract, and so long as no
default by Purchaser exists under this Contract, Purchaser and its
agents, employees and representatives shall be entitled to enter
upon the Property for purposes of conducting soil and other
engineering tests and to inspect and survey any of the Property. If
the Property is altered or disturbed in any manner in connection
with any of Purchaser’s activities, Purchaser shall
immediately return the Property to substantially the condition
existing prior to such activities. Purchaser shall promptly refill
holes dug and otherwise to repair any damage to the Property as a
result of its activities. Purchaser and its agents shall not have
the right to conduct any invasive testing (e.g., borings, drilling,
soil/water sampling, etc.), except standard geotech preliminary
investigation, on the Lots, including, without limitation, any
so-called "Phase II" environmental testing, without first obtaining
Seller's written consent (and providing Seller at least seventy-two
(72) hours' prior written notice), which consent may be withheld by
Seller in its reasonable discretion and shall be subject to any
terms and conditions imposed by Seller in its reasonable
discretion. In the event that Purchaser fails to obtain Seller's
written consent prior to any invasive testing, in addition to and
without limiting any other obligations Purchaser may have under
this Section, Purchaser shall be fully responsible and liable for
all costs of remediation with respect to any materials disturbed in
any manner that requires remediation or that are removed in
connection with such invasive testing and including, but not
limited to, costs for disposal of materials removed during any
invasive testing. Purchaser shall not permit any lien to attach to
the Property or any portion of the Property as a result of the
activities. Purchaser shall indemnify, defend and hold Seller, its
officers, directors, shareholders, employees, agents and
representatives harmless from and against any and all
mechanics’ and materialmen’s liens, claims (including,
without limitation, personal injury, death and property damage
claims), damages, losses, obligations, liabilities, costs and
expenses including, without limitation, reasonable attorneys’
fees incurred by Seller, its officers, directors, shareholders,
employees, agents and representatives or their property arising out
of any breach of the provisions of this Section 12(c) by Purchaser,
its agents, employees or representatives. The foregoing indemnity
obligation of Purchaser includes acts and omissions of Purchaser
and all agents, consultants and other parties acting for or on
behalf of Purchaser. Purchaser shall maintain in effect during its
inspection of the Property commercial general liability coverage
for bodily injury and property damage in the amount of at least
$2,000,000.00 combined single limit, and automobile liability
coverage for bodily injury and property damage in the amount of at
least $2,000,000.00 combined single limit, and the policy or
policies of insurance shall be issued by a reputable insurance
company or companies which are qualified to do business in the
State of Colorado and shall name Seller as an additional insured.
In addition, before entering upon the Property, Purchaser shall
provide Seller with valid certificates indicating such insurance is
in effect. The foregoing indemnity shall not apply to claims due to
(i) Hazardous Materials or conditions that are not placed on the
Property or caused by Purchaser or its agents, (ii) pre-existing
matters, (iii) or Seller’s actions or inactions. The
indemnity and agreement set forth in this Section 12(c) shall
survive the expiration or termination of this Contract for any
reason.

 

(d) Architectural Approval. In
order to assure that homes constructed by Purchaser are compatible
with the other residential construction in the Development and the
architectural, design, and landscaping criteria and guidelines
included in the approved Final Development Plan applicable to the
Property (the “FDP
Criteria”) and are otherwise acceptable to Seller, all
construction and landscaping on the Lots shall be subject to the
prior review and approval of Seller. The Master Covenants will
provide for the formation of an architectural review committee
(“Architectural
Review Committee”) and for the promulgation and
adoption of design guidelines (“Design
Guidelines”) to be applied by the Architectural Review
Committee. The Master Covenants and/or the Design Guidelines will
provide for an exemption from obtaining Architectural Review
Committee approval for the Seller and any other person whose House
Plans (as hereinafter defined) has been reviewed and approved by
the Seller.



 

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(i) Purchaser shall
submit to Seller the Purchaser’s elevations, floor plans,
typical landscape plans, exterior color palettes for homes and
other buildings, structures and improvements to be located on the
Lots (“House
Plans”) within 20 days following delivery of the Final
Development Plan to Purchaser. Seller will review the House Plans
and Seller shall deliver notice to Purchaser of the Seller’s
approval or disapproval of the House Plans within ten (10) business
days after receipt of the House Plans, with such approval not to be
unreasonably withheld, conditioned or delayed, so long as such
plans substantially comply and are generally consistent and
compatible with the FDP Criteria. If Seller fails to so notify
Purchaser of approval or disapproval within such 10-business day
period, the Purchaser shall provide Seller with written notice of
the same and Seller shall notify Purchaser within five (5) business
days of its approval or disapproval. If Seller fails to approve or
disapprove within such 5-business day period, the House Plans shall
be deemed approved and/or an appropriate exemption shall be given
to Purchaser. In the event of disapproval, Purchaser shall revise
and resubmit the House Plans to the Seller for reconsideration,
addressing the matters disapproved by the Seller, and the procedure
set forth above shall be repeated until the House Plans are
approved by the Seller. After Seller approves the Purchaser’s
House Plans, and before Purchaser commences construction of Homes
on the Lots, Purchaser shall submit to Seller any material changes
in the approved House Plans. Seller shall review the material
changes for general consistency and compatibility with the
standards and criteria set forth in the FDP Criteria and if Seller
approves such changes, Seller shall notify Purchaser within ten
(10) business days of its approval, not to be unreasonably
withheld, conditioned or delayed.

 

(ii) Purchaser shall
obtain Seller approval of House Plans before commencing
construction on a Lot. Purchaser shall perform all construction,
development and landscaping in accordance with the approved House
Plans and in conformity with the FDP Criteria and all other
requirements, rules, regulations of any local jurisdictional
authority. Purchaser and Seller acknowledge that the County will
not conduct architectural review nor issue approval of
Purchaser’s house plans, but rather requires the building
permit applicant to comply with the FDP Criteria. Seller’s
approval of Purchaser’s House Plans is only intended as a
review for compatibility with other residential construction in the
Development and the FDP Criteria and does not constitute a
representation or warranty that Purchaser’s House Plans
comply with FDP Criteria and Purchaser shall be responsible for
confirming such compliance.

 

(e) Disclosures to Homebuyers.
Purchaser shall include in each contract for the sale of any Home
constructed by Purchaser in the Development all disclosures
required by applicable laws, including, but not limited to the
Special District Disclosure, Common Interest Community Disclosure,
Mineral Disclosure and Source of Potable Water Disclosure, and any
other disclosure that applicable laws require to be made to each
homebuyer regarding expansive/low-density soils, radon and other
matters (“Homebuyer
Disclosures”). Purchaser shall furnish to Seller upon
request a copy of Purchaser’s disclosures to homebuyers which
includes the Homebuyer Disclosures.



 

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13. Force
Majeure.
A delay in or failure to perform any obligations required of Seller
or Purchaser under this Contract shall not constitute a default to
the extent such delay or failure is caused by Force Majeure and all
times for performance shall be extended by the number of days of
Force Majeure. "Force
Majeure" shall be limited to acts of God, war, terrorism,
fire, flood, earthquake, hurricane, weather conditions, strike,
delay or unavailability of labor or materials, delay or
unavailability of utilities, delays in obtaining governmental
approvals to the extent not caused by the party seeking approval,
moratoria, injunctions, orders or directives of any court or
governmental body, or other actions of third parties (but not
including financial inability) which, despite the exercise of
reasonable diligence, the party required to perform is unable to
prevent, avoid or remove. Force Majeure does not apply to the
failure of a party to make a payment when due and payable under the
terms of this Contract.

 

14. Cooperation. Purchaser shall
reasonably cooperate with and require its agents, employees,
subcontractors and other representatives to cooperate with all
other parties involved in construction within the Development,
including, where applicable, the granting of a nonexclusive license
to enter upon the Property conveyed to Purchaser. Purchaser shall
execute any and all documentation reasonably required by Seller or
the Authorities to effectuate any desired modification or change in
connection with Seller’s activities in the Development
including, without limitation, amendments or restatements of the
Master Covenants, or any Final Plat; provided, however, Purchaser
shall not be obligated to execute any such documentation if it will
materially adversely affect the fair market value of the Property
or Purchaser’s ability to construct or to sell its proposed
homes within the Property, or if it will materially increase the
cost of such construction, interfere with or delay such
construction.


  

15. Fees. Subject to the
provisions of Sections 16 and 17 below:


 

(a) FHA/VA. Seller shall not be
required to obtain any approvals pursuant to FHA, VA or other
governmental programs relating to the Lots or the financing of
improvements thereon.

 

(b) Utility Company Refunds. Any
refunds from utility providers relating to construction deposits
for the Property shall be the exclusive property of Seller.
Purchaser shall cooperate with Seller in turning over any such
funds and directing those funds to Seller.

 

16. Water and Sewer Taps; Fees; and
District Matters.


 

(a) Rangeview Metropolitan
District. The water and sewer service provider for the Lots
is the Rangeview Metropolitan District (“Rangeview”)
and Purchaser shall be required to purchase water and sewer taps
for the Lots from Rangeview. During the Due Diligence Period,
Purchaser shall negotiate in good faith to reach agreement with
Rangeview on terms and provisions of a Tap Purchase Agreement (the
"Tap
Purchase Agreement") in which Rangeview agrees to sell to
Purchaser, and Purchaser agrees to purchase from Rangeview, a water
and sewer tap for each Lot in accordance with an agreed-upon
purchase schedule, but in no event later than the issuance of a
building permit for a Lot. If Rangeview and Purchaser agree upon a
Tap Purchase Agreement before the expiration of the Due Diligence
Period, they shall prepare and execute an amendment to this
Contract to set forth and attach to this Contract the agreed-upon
Tap Purchase Agreement and execute the Tap Purchase Agreement on or
before the date of the First Closing. If Rangeview and Purchaser
are unable to agree on a Tap Purchase Agreement before the
expiration of the Due Diligence Period, the Deposit shall be
promptly returned to Purchaser, Purchaser shall deliver to Seller
all information and materials received by Purchaser from Seller
pertaining to the Property and any non-confidential and
non-proprietary information otherwise obtained by Purchaser
pertaining to the Property, and thereafter the parties shall have
no further rights or obligations under this Contract except as
otherwise provided in Section 24 below. The combined
cost to purchase a water tap and sewer will be dependent on Lot
size, house square footage, number of floors, driveway lanes,
outdoor irrigated square footage, and xeriscape square footage. For
example, based on Rangeview’s rates and charges as of the
Effective Date, a 5,500 square foot lot with a 2,400 square foot
house 2 story 2 car garage with 1,500 square feet of grass would
have a computed water/sewer tap fee of $25,500.



 

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(b) Sky Ranch Metropolitan District No.
1. The Property is included within the boundaries of the Sky
Ranch Metropolitan District No. 1 (“District”).
The Property is included within the boundaries of the District and
the service area of Rangeview. Persons affiliated with Seller have
been elected or appointed to the board of directors
(“Board”)
of the District and Rangeview and serve in that capacity. Purchaser
shall not qualify any persons affiliated with Purchaser as its
representative to serve on the Board of the District or Rangeview
and this prohibition shall survive the Closing and delivery of
deeds hereunder until no person affiliated with Seller serves on
the Board. The District has been formed for purposes that include,
but are not limited to financing, owning, maintaining and/or
managing certain tracts and infrastructure improvements
(“District
Improvements”) to serve the Development, including the
Lots. Purchaser acknowledges that: (i) the construction of District
Improvements shall be without compensation or reimbursement to
Purchaser; and (ii) any reimbursements, credits, payments, or other
amounts payable by the District or Rangeview on account of the
construction of District Improvements or any other matters related
thereto (“Metro District
Payments”) shall remain the property of the Seller and
shall not be conveyed to or otherwise be claimed by Purchaser. Upon
request of Seller, the District or Rangeview, Purchaser will
execute any and all documents that may be reasonably required to
confirm Purchaser’s waiver of any right to Metro District
Payments. The provisions of this Section are material in
determining the Purchase Price, and the Purchase Price would have
been higher but for the provisions of this Section. This Section
shall survive Closing.

 

(c) Fees.

 

(i) Seller shall pay
any and all of the following to the extent imposed by any Authority
in connection with the Property conveyed to Purchaser: (i) any
parks and recreation fees (including park dedication requirements
and/or cash-in-lieu payments related to the Property as part of the
platting thereof); (ii) drainage fees; (iii) fees for
payment-in-lieu of school land dedications

 

(ii) Following Closing,
Purchaser shall pay all costs and expenses for all water meter
fees, sewer fees, connection fees, facility fees or assessments,
PIF fees, building and other permit costs, and any other costs or
fees that may be imposed by any Authority relating to the
construction, use or occupancy of the homes to be constructed on
the Lots. Without limiting the foregoing, and except for the fees
to be paid by Seller pursuant to Section 16(c)(i) above, Purchaser
shall pay any and all of the following to the extent imposed in
connection with the Property conveyed to Purchaser: (i) system
development fees; (iii) any infrastructure (facility) fee,
including, without limitation, any transportation/road fee, which
may be imposed either by the County, the District or other
Authority; (iv) any impact fees and payment-in-lieu of land
dedication fees imposed for roads or other facilities that are
payable at issuance of a building permit for a home constructed on
a Lot; and (v) any excise fees.



 

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(iii) As of the Effective
Date, the District does not levy a system development fee
(“SDF”)
against property within the District. If the District at any time
before a Closing adopts a SDF, then at the Closing the Purchaser
shall pay the District’s SDF applicable to the Lots acquired
at such Closing. In order to offset Purchaser’s payment of
the District’s SDF for a Lot at a Closing, Purchaser shall
receive a credit against the Purchase Price paid by Purchaser for
such Lot at such Closing equal to the amount of the
District’s SDF paid by Purchaser for the Lot. [RANGEVIEW’S TAP FEES
ARE CALLED SYSTEM DEVELOPMENT FEES]

 

(iv) The covenants set
forth in this Section 16 shall survive each
respective Closing and shall represent a continuing obligation
until the complete satisfaction or payment thereof.

 

17. Reimbursements and
Credits. Purchaser shall
have no right to any reimbursements and/or cost-sharing agreements
pursuant to any agreements entered into between Seller or any of
Seller’s affiliates and third parties which may or may not
affect the Property. In addition, Purchaser acknowledges that
Seller, its affiliates or one (1) or more metropolitan district(s)
have installed or may install certain infrastructure improvements
("Infrastructure
Improvements") and/or donate, dedicate and/or convey certain
rights, improvements and/or real property ("Dedications")
to the County or other Authority which benefit all or any part of
the Property, together with adjacent properties, and which entitle
Seller or its affiliates and/or the Property or any part thereof to
certain reimbursements by the County or other Authority or credits
by the County or other Authority for park fees, open space fees,
school impact fees, capital expansion fees and other governmental
fees which would otherwise be required to be paid to the County or
other governmental or quasi-governmental entity by the owner of the
Property or any part thereof from time to time ("Governmental
Fees"). In the event Purchaser is entitled to a credit or
waiver of Governmental Fees by the County and/or other governmental
or quasi-governmental entity as a result of the Infrastructure
Improvements and/or Dedications, then, in such event, Purchaser
shall pay to or reimburse Seller and/or its designated affiliates
in an amount equal to such credited or waived Governmental Fees at
the same time that the Governmental Fees would otherwise be payable
by Purchaser or its assignees to the County or other Authority but
for the construction of the Infrastructure Improvements and/or the
Dedications by Seller, its affiliates and/or metropolitan
district(s). In addition, Purchaser acknowledges that Seller or its
affiliate(s) may have negotiated or may negotiate with the County
or other Authority for reimbursements to Seller or its affiliates.
Purchaser acknowledges that certain Governmental Fees which may be
paid by Purchaser to the County or other Authority may be
reimbursed to Seller and/or its affiliates pursuant to the terms of
said agreement. The obligations and covenants set forth in this
Section 17 shall survive the Closing of
the purchase and sale of the Property and shall represent a
continuing obligation of Purchaser until complete satisfaction
thereof. Purchaser shall be released from the obligations in this
Section 17 to the
extent such obligations are assumed in writing by a subsequent
owner of all or a portion of the Property and a copy of such
written assumption is furnished to Seller. Each special warranty
deed conveying the applicable portion of the Property at each
Closing shall contain the foregoing reimbursement covenant, which
reimbursement covenant shall expressly state that it automatically
terminates as to any Lot upon issuance of a certificate of
occupancy for a home constructed on the Lot and conveyance of the
Lot to a homebuyer.



 

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18. Name and
Logo.
The name and logo of "Sky Ranch" are wholly owned by Seller.
Purchaser agrees that it shall not use or allow the use of the name
"Sky Ranch" or any logo, symbol or other words or phrases which are
names or trademarks used or registered by Seller or any of its
affiliates in any manner to name, designate, advertise, sell or
develop the Property or in connection with the operation or
business located or to be located upon the Property without the
prior written consent of Seller, which consent may be withheld for
any reason. Any consent to the use of such names or logos may be
conditioned upon Purchaser entering into a license agreement with
Seller, as applicable, at no additional cost to Purchaser.
Notwithstanding the foregoing, however, Purchaser shall have a
non-exclusive, royalty-free license for so long as Purchaser is
building and selling homes in the Development, without the need for
any further consent or approval by Seller, to use the name and logo
of "Sky Ranch" in connection with the use, marketing, sales,
development and operation of the Property, provided that Purchaser
shall comply with any requirements uniformly applicable to all
homebuilders in Sky Ranch that Seller promulgates with respect to
such usage.


 

19. Renderings. All renderings,
plans or drawings of the Property or the Development locating
landscaping, trees and any improvements are artists’
conceptions only and may not accurately reflect their actual
location. Purchaser waives any claims based upon any inaccuracy in
the location of such items as depicted on the renderings, plans or
drawings.


 

20. Communications
Improvements. Seller may, but
is not obligated to, enter into an agreement with a service
provider for the development and installation of Communication
Improvements in all or any portion of the Development.
“Communications
Improvements” means any equipment, property and
facilities, if used or useful in connection with the delivery,
deployment, provision or modification of (a) broadband Internet
access service; (b) monitoring service, for the benefit of
governmental entities, quasi-governmental entities, or utilities,
regarding the usage of electricity, gas, water and other resources;
(c) video programming or content, including Internet protocol
television (a/k/a “IPTV”) service; (d) voice over
Internet protocol (a/k/a “VoIP”) service; (e)
telecommunications services, including voice; (f) any other service
or services delivered by means of the Internet or otherwise
delivered by means of digital signals; and (g) any other service or
services based on technology that is similar to or is a
technological extension of any of the foregoing
(“Service”). Communications Improvements do not include
any equipment, facilities or property located or in the home of a
person who receives services from the service provider, such as,
but not limited to routers, wireless access points, in-house
wiring, set-top boxes, game consoles, gateways and other equipment
under the control of the owner or occupant of the home. Seller may
grant to such service provider one or more permanent,
non-exclusive, perpetual, assignable and recordable easements
(collectively referred to as the “Easement”)
to access and use the Property and other property within the
Development, as necessary, appropriate or desirable, to lay,
install, construct, reconstruct, modify, operate, maintain, repair,
enhance, upgrade, regulate, remove, replace and otherwise use the
Communications Improvements. So long as any such Easement does not
materially interfere with Purchaser’s ability to construct
its intended single family homes on the Lots, Purchaser shall not
object to and shall cooperate with Seller in connection with the
installation and operation of the Communications
Improvements.



 

31







 






 

21. Soil Hauling. Purchaser shall
be responsible for relocating from the Property all surplus soil
generated during Purchaser's construction of structures on the
Property. At the option of Seller in its sole discretion, the
surplus soil shall be transported at Purchaser’s expense to a
site designated by Seller within the Development, provided that
Seller has designated and made such a site available to Purchaser
at the time Purchaser is ready to transport surplus soils. If and
to the extent that Seller establishes stock pile site within the
Development, Seller may modify any such stock pile locations from
time to time in Seller’s discretion (but Purchaser shall not
have any obligation to relocate any soil Purchaser previously
delivered to the prior designated stock pile site). At
Seller’s request, Purchaser shall supply copies of any
reports or field assessments identifying the material
characteristics of the excess soil prior to accepting such soil for
fill purposes. Notwithstanding the foregoing, in the event that
Seller does not establish a stock pile site or elects not to accept
any surplus soils from Purchaser, then Purchaser shall, at its sole
expense, find a purchaser or taker or otherwise transport and
dispose of such surplus soil upon such terms as it shall desire,
but such surplus soil must still be removed from the Property and
may not be stockpiled on the Property or within the Development
after construction has been completed.


 

22. Specially Designated Nationals and
Blocked Persons List. Purchaser
represents and warrants to Seller that Purchaser and all persons
and entities owning (directly or indirectly) an ownership interest
in Purchaser are currently in compliance with and shall at all
times prior to the Closing of this transaction remain in compliance
with the regulations of the Office of Foreign Assets Control
("OFAC") of
the United States Department of the Treasury (including those named
on OFAC’s Specially Designated and Blocked Persons List) and
any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit or Support Terrorism), or
other governmental action relating thereto. Seller represents and
warrants to Purchaser that Seller and all persons and entities
owning (directly or indirectly) an ownership interest in Seller are
currently in compliance with and shall at all times prior to the
Closing of this transaction remain in compliance with the
regulations of the OFAC (including those named on OFAC’s
Specially Designated and Blocked Persons List) and any statute,
executive order (including the September 24, 2001, Executive Order
Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit or Support Terrorism), or other
governmental action relating thereto.


 

23. Assignment.


 

(a) Seller's Assignment. Seller may
assign its rights and obligations in whole or in part under this
Contract without the consent of Purchaser.

 

(b) Purchaser's Assignment. The
obligations of the Purchaser under this Contract are personal in
nature, and neither this Contract nor any rights, interests, or
obligations of Purchaser under this Contract may be transferred or
assigned without the prior written consent of Seller, except that
Purchaser may assign its rights or obligations under this
Agreement, without the prior written consent of Seller, to (i) any
affiliate of Purchaser, or (ii) any third-party from which
Purchaser has a contractual right to acquire the Lots pursuant to
an option agreement or similar arrangement with such third-party,
but Purchaser shall not be released from any obligations
hereunder.



 

32







 





 

24. Survival. All covenants and
agreements of either party which are intended to be performed in
whole or in part after any Closing or termination of this Contract,
and all representations, warranties and indemnities by either party
to the other under this Contract shall survive such Closing or
termination of this Contract and shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and permitted assigns; provided, however, that Seller’s
Representations pursuant to this Contract shall survive each
respective Closing for a period of nine (9) months, and any action
by Purchaser based on a breach of any of such Seller’s
Representations must be brought within such nine (9) month
period.


 

25. Condemnation. If a condemnation
action is filed or either party receives written notice from any
competent condemning authority of intent to condemn which directly
affects any Lot or Lots which Purchaser has a right to purchase,
either party may at its sole discretion by written notice to the
other party within ten (10) days following receipt of such
condemnation notice terminate this Contract as to the Lots subject
to the condemnation action and receive a refund of a prorata
portion of the Deposit with respect to those Lots only, and the
parties shall have no further rights or obligations with respect to
those Lots. If the right to terminate is not exercised by either
party, this Contract shall remain in full force and effect with
respect to the Lot in question and upon exercise of the right to
purchase the Lot, the Closing shall proceed in accordance with the
terms of this Contract. Any condemnation award shall be paid to the
party who is the owner of the affected Lot at the time the award is
determined by the condemning authority.


 

26. Brokers. Each Party does
hereby represent that it has not engaged any broker, finder, or
real estate agent in connection with the transactions contemplated
by this Contract. Each party agrees to and does hereby indemnify
and hold the other harmless from any and all fees, brokerage and
other commissions or costs (including reasonable attorneys’
fees), liabilities, losses, damages or claims which may result from
any broker, agent or finder, licensed or otherwise, claiming
through, under or by reason of the conduct of either of them
respectively in connection with the purchase of the Lots by
Purchaser.


 

27. Default and
Remedies. Time is of the
essence hereof. If any amount received as a Deposit hereunder or
any other payment due hereunder is not paid by Purchaser, honored
or tendered when due and payable, or if each Closing is not
consummated as required in accordance with Section 8 above, or if any
other covenant, agreement, obligation or condition hereunder is not
performed or waived as herein provided within five (5) days (or
such longer period as required under this Contract) after the party
failing to perform the same has received written notice of such
failure, there shall be the following remedies:


 

(a) Purchaser’s Default. If
Purchaser is in default under this Contract, Seller may terminate
this Contract, in which event the Deposit shall be forfeited and
retained on behalf of Seller, and both parties shall, except as
otherwise provided herein, thereafter be released from all
obligations hereunder. It is agreed that, except as otherwise
provided in this subpart (a) and in subparts (c) and (d) below
and except with respect to the indemnification by Purchaser in
Sections 10,
12 and 26
above, such payments and things of value are LIQUIDATED DAMAGES and
are SELLER’S SOLE AND ONLY REMEDY for Purchaser’s
failure to perform the obligations of this Contract prior to the
Closing. Except as otherwise provided in this Contract, Seller
expressly waives the remedies of specific performance and
additional damages with respect to a default by Purchaser.
Notwithstanding the foregoing or any other contrary provision of
this Contract, any and all provisions of this Contract pursuant to
which Purchaser agrees to indemnify, hold harmless and defend
Seller from and against any losses, costs, claims, causes of action
or liabilities of any kind or nature, or pursuant to which
Purchaser waives any rights or claims that it may have against
Seller, shall survive any termination of this Contract, and shall
be and remain fully enforceable against Purchaser in accordance
with the terms of this Contract and applicable laws.



 

33







 





 

(b) Seller’s Default. If
Seller is in default under this Contract, Purchaser may elect AS
ITS SOLE AND EXCLUSIVE REMEDY either: (i) to treat this
Contract as canceled, in which case the Deposit shall be returned
to Purchaser, and Purchaser shall have the right to recover, as
damages, all out-of-pocket expenses incurred by it in negotiating
this Contract and in inspecting, analyzing or otherwise performing
its rights and obligations pursuant to this Contract, but in no
event will the amount of such damages exceed Fifty Thousand Dollars
($50,000.00); or (ii) Purchaser may elect to treat this Contract as
being in full force and effect and Purchaser shall have a right to
specific performance, provided that any such action for specific
performance must be commenced within sixty (60) days after the
expiration of the applicable notice and cure period provided
herein, and, in the event specific performance is not available,
than Purchaser may pursue the remedy set forth in clause (i) above.
Seller shall not be liable for and Purchaser shall not be entitled
to recover exemplary, punitive, special, indirect, consequential,
lost profits or any other damages (except for recovery of
out-of-pocket expenses as set forth in clause (i)
above).

 

(c) Indemnity. Notwithstanding any
contrary provision of this Contract, any and all provisions of this
Contract pursuant to which a party agrees to indemnify, hold
harmless and defend the other party from and against any losses,
costs, claims, causes of action or liabilities of any kind or
nature, or pursuant to which a party waives any rights or claims
that it may have against the other party, shall survive any
termination of this Contract, and shall be and remain fully
enforceable against a party in accordance with the terms of this
Contract and applicable laws.

 

(d) Award of Costs and Fees.
Anything to the contrary herein notwithstanding, in the event of
any litigation arising out of this Contract related to an action
for specific performance brought by either party as permitted in
accordance with the terms of this Contract, the court shall award
the substantially prevailing party all reasonable costs and
expenses, including attorneys’ fees, incurred by the
substantially prevailing party in the litigation or other
proceedings.

 

(e) Post-Closing Defaults. With
respect to post-closing defaults, the parties agree that the
non-defaulting party shall be entitled to exercise all remedies
available at law or in equity, except that damages shall be limited
to actual out-of-pocket costs and expenses incurred. The foregoing
does not limit or control the remedies as are to be separately
provided in the Lot Development Agreement.

 

28. General
Provisions. The parties
hereto further agree as follows:


 

(a) Time of the Essence. Time is of
the essence under this Contract. In computing any period of time
under this Contract, the date of the act or event from which the
designated period of time begins to run shall not be included. The
last day of the period so computed shall be included unless it is a
Saturday, Sunday, or federal legal holiday, in which event the
period shall run until the end of the next day which is not a
Saturday, Sunday, or federal legal holiday.



 

34







 





 

(b) Governing Law. This Contract
shall be governed by and construed in accordance with the laws of
the State of Colorado.

 

(c) Severability. Should any
provisions of this Contract or the application thereof, to any
extent, be held invalid or unenforceable, the remainder of this
Contract and the application thereof, other than those provisions
which shall have been held invalid or unenforceable, shall not be
affected thereby and shall continue in full force and effect and
shall be enforceable to the fullest extent permitted at law or in
equity.

 

(d) Entire Contract. This Contract
embodies the entire agreement between the parties hereto concerning
the subject matter hereof and supersedes all prior conversations,
proposals, negotiations, understandings and agreements, whether
written or oral.

 

(e) Exhibits. All schedules,
exhibits and addenda attached to this Contract and referred to
herein shall for all purposes be deemed to be incorporated in this
Contract by this reference and made a part hereof.

 

(f) Further Acts. Each of the
parties hereto covenants and agrees with the other, upon reasonable
request from the other, from time to time, to execute and deliver
such additional documents and instruments and to take such other
actions as may be reasonably necessary to give effect to the
provisions of this Contract.

 

(g) Compliance. The performance by
the parties of their respective obligations provided for in this
Contract shall comply with all applicable laws and the rules and
regulations of all governmental agencies, municipal, county, state
and federal, having jurisdiction in the premises.

 

(h) Amendment. This Contract shall
not be amended, altered, changed, modified, supplemented or
rescinded in any manner except by a written agreement executed by
both parties.

 

(i) Authority. Each of the parties
hereto represents to the other that each such party has full power
and authority to execute, deliver and perform this Contract, that
the individuals executing this Contract on behalf of said party are
fully empowered and authorized to do so, that this Contract
constitutes a valid and legally binding obligation of such party
enforceable against such party in accordance with its terms, that
such execution, delivery and performance will not contravene any
legal or contractual restriction binding upon such party or any of
its assets and that there is no legal action, proceeding or
investigation of any kind now pending or to the knowledge of each
such party threatened against or affecting such party or affecting
the execution, delivery or performance of this Contract. Each of
the parties hereto represents to the other that each such party is
a duly organized, legal entity and is validly existing in good
standing under the laws of the jurisdiction of its
formation.



 

35







 





 

(j) Notices. All notices,
statements, demands, requirements, or other communications and
documents (collectively, "Communications")
required or permitted to be given, served, or delivered by or to
either party or any intended recipient under this Contract shall be
in writing and shall be deemed to have been duly given (i) on
the date and at the time of delivery if delivered personally to the
party to whom notice is given at the address specified below; or
(ii) on the date and at the time of delivery or refusal of
acceptance of delivery if delivered or attempted to be delivered by
an overnight courier service to the party to whom notice is given
at the address specified below; or (iii) on the date of
delivery or attempted delivery shown on the return receipt if
mailed to the party to whom notice is to be given by first-class
mail, sent by registered or certified mail, return receipt
requested, postage prepaid and properly addressed as specified
below; or (iv) on the date and at the time shown on the
facsimile or electronic mail message if telecopied or sent
electronically to the number or address specified
below:

 


To
Seller:             
PCY Holdings, LLC


Attention: Mark
Harding


34501
E. Quincy Ave.


Bldg.
34, Box 10


Watkins, Colorado
80137


Telephone: (303)
292-3456


Facsimile: (303)
292-3475


E-mail:
mharding@purecyclewater.com


 


with a
copy to:


Fox
Rothschild LLP


1225
17th
Street, Suite 2200


Denver,
CO 80202


Attention: Rick
Rubin, Esq.


Telephone: (303)
292-1200


Email:
rrubin@foxrothschild.com


 


To
Purchaser:       Taylor Morrison of
Colorado, Inc.


1420
West Canal Court, Suite 170


Littleton, Colorado
80120


Attention: Tom
Hennessy, Division President


Telephone: (303)
325-2426


E-mail:
thennessy@taylormorrison.com


 


With
copy to Phillip Cross at same address


E-mail:
pcross@taylormorrison.com


 


with a
copy to:      Brier, Irish, Hubbard &
Erhart P.L.C.


2400
East Arizona Biltmore Circle, Suite 1300


Phoenix, AZ
85016


Attn:
Jeff Hubbard


Telephone: (602)
522-0160


Facsimile: (602)
522-3945


E-mail:
jhubbard@bihlaw.com


 


With
copy to Tony Meier at same address


E-mail:
tmeier@bihlaw.com


 



 

36







 






If to
Title Company:


 


Land
Title Guarantee Company


Attn:
Tom Blake


3033 E.
1st Ave.
#600


Denver,
Colorado 80206


Fax#: (303)
393-4959


Direct: (303)
331-6237


Email:
tblake@ltgc.com


 

(k) Place of Business. This
Contract arises out of the transaction of business in the State of
Colorado by the parties hereto.

 

(l) Counterparts; Facsimile
Signature. This Contract may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one (1) and the same
instrument, and either of the parties hereto may execute this
Contract by signing any such counterpart.  This Contract may
be executed and delivered by facsimile or by electronic mail in
portable document format (.pdf) or similar means and delivery of
the signature page by such method will be deemed to have the same
effect as if the original signature had been delivered to the other
party.

 

(m) Captions; Interpretation. The
section captions and headings used in this Contract are inserted
herein for convenience of reference only and shall not be deemed to
define, limit or construe the provisions hereof. Purchaser and
Seller acknowledge that each is a sophisticated builder or
developer, as applicable, and that each has had an opportunity to
review, comment upon and negotiate the provisions of this Contract,
and thus the provisions of this Contract shall not be construed
more favorably or strictly for or against either party. Purchaser
and Seller each acknowledges having been advised, and having had
the opportunity, to consult legal counsel in connection with this
Contract and the transactions contemplated by this
Contract.

 

(n) Number and Gender. When
necessary for proper construction hereof, the singular of any word
used herein shall include the plural, the plural shall include the
singular and the use of any gender shall be applicable to all
genders.

 

(o) Waiver. Any one (1) or more
waivers of any covenant or condition by a party hereto shall not be
construed as a waiver of a subsequent breach of the same covenant
or condition nor a consent to or approval of any act requiring
consent to or approval of any subsequent similar act.

 

(p) Binding Effect. Subject to the
restrictions on assignment contained herein, this Contract shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.



 

37







 





 

(q) Recordation. Purchaser shall
not cause or allow this Contract or any memorandum or other
evidence thereof to be recorded in the County Records or become a
public record without Seller’s prior written consent, which
consent may be withheld at Seller’s sole discretion. If
Purchaser records this Contract, then Purchaser shall be in default
of its obligations under this Contract.

 

(r) No Beneficiaries. No third
parties are intended to benefit by the covenants, agreements,
representations, warranties or any other terms or conditions of
this Contract.

 

(s) Relationship of Parties.
Purchaser and Seller acknowledge and agree that the relationship
established between the parties pursuant to this Contract is only
that of a seller and a purchaser of single-family lots. Neither
Purchaser nor Seller is, nor shall either hold itself out to be,
the agent, employee, joint venturer or partner of the other
party.

 

(t) Interstate Land Sales Full Disclosure
Act and Colorado Subdivision Developers Act Exemptions. It
is acknowledged and agreed by the parties that the sale of the
Property will be exempt from the provisions of the federal
Interstate Land Sales Full Disclosure Act under the exemption
applicable to sale or lease of property to any person who acquires
such property for the purpose of engaging in the business of
constructing residential, commercial or industrial buildings or for
the purpose of resale of such property to persons engaged in such
business. Purchaser hereby represents and warrants to Seller that
it is acquiring the Property for such purposes. It is further
acknowledged by the parties that the sale of the Property will be
exempt under the provisions of the Colorado Subdivision Developers
Act under the exemption applicable to transfers between developers.
Purchaser represents and warrants to Seller that Purchaser is
acquiring the Property for the purpose of participating as the
owner of the Property in the development, promotion and sale of the
Property and portions thereof.

 

(u) Special Taxing District
Disclosure. In accordance with the provisions of
C.R.S. §38-35.7-101(1), Seller provides the following
disclosure to Purchaser: SPECIAL TAXING
DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS
PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE
PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS
MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND TAX TO SUPPORT
THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN
THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS
WITHOUT SUCH AN INCREASE IN MILL LEVIES. PURCHASERS SHOULD
INVESTIGATE THE SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS
LOCATED BY CONTACTING THE COUNTY TREASURER, BY REVIEWING THE
CERTIFICATE OF TAXES DUE FOR THE PROPERTY, AND BY OBTAINING FURTHER
INFORMATION FROM THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY
CLERK AND RECORDER, OR THE COUNTY ASSESSOR.



 

38







 





 

(v) Common Interest Community
Disclosure. In accordance with the provisions of
C.R.S. §38-35.7-102(1), Seller provides the following
disclosure to Purchaser: IF SELLER ELECTS TO
FORM A HOMEOWNERS ASSOCIATION UNDER THE MASTER COVENANTS FOR THE
DEVELOPMENT, THEN THE PROPERTY IS,
OR WILL BE PRIOR TO EACH RESPECTIVE CLOSING, LOCATED WITHIN A
COMMON INTEREST COMMUNITY AND IS, OR WILL BE PRIOR TO SUCH CLOSING,
SUBJECT TO THE DECLARATION FOR SUCH COMMUNITY. THE OWNER OF THE
PROPERTY WILL BE REQUIRED TO BE A MEMBER OF THE OWNER’S
ASSOCIATION FOR THE COMMUNITY AND WILL BE SUBJECT TO THE BYLAWS AND
RULES AND REGULATIONS OF THE ASSOCIATION. THE DECLARATION, BYLAWS,
AND RULES AND REGULATIONS WILL IMPOSE FINANCIAL OBLIGATIONS UPON
THE OWNER OF THE PROPERTY, INCLUDING AN OBLIGATION TO PAY
ASSESSMENTS OF THE ASSOCIATION. IF THE OWNER DOES NOT PAY THESE
ASSESSMENTS, THE ASSOCIATION COULD PLACE A LIEN ON THE PROPERTY AND
POSSIBLY SELL IT TO PAY THE DEBT. THE DECLARATION, BYLAWS, AND
RULES AND REGULATIONS OF THE COMMUNITY MAY PROHIBIT THE OWNER FROM
MAKING CHANGES TO THE PROPERTY WITHOUT AN ARCHITECTURAL REVIEW BY
THE ASSOCIATION (OR A COMMITTEE OF THE ASSOCIATION) AND THE
APPROVAL OF THE ASSOCIATION. PURCHASERS OF PROPERTY WITHIN THE
COMMON INTEREST COMMUNITY SHOULD INVESTIGATE THE FINANCIAL
OBLIGATIONS OF MEMBERS OF THE ASSOCIATION. PURCHASERS SHOULD
CAREFULLY READ THE DECLARATION FOR THE COMMUNITY AND THE BYLAWS AND
RULES AND REGULATIONS OF THE ASSOCIATION.

 

(w) Source of Water Disclosure. In
accordance with the provisions of C.R.S. §38-35.7-104,
Seller provides the following disclosure to Purchaser:

 


THE
SOURCE OF POTABLE WATER FOR THIS REAL ESTATE IS:

 


A
WATER PROVIDER, WHICH CAN BE CONTACTED AS FOLLOWS:

 



NAME:             



Rangeview
Metropolitan District







ADDRESS:                   



c/o
Special District Management Services, Inc.







 


141
Union Blvd., Suite 150







 


Lakewood,
Colorado 80228







WEB
SITE:              



www.rangviewmetro.org







TELEPHONE:                         



303-987-0835





 


SOME
WATER PROVIDERS RELY, TO VARYING DEGREES, ON NONRENEWABLE GROUND
WATER. YOU MAY WISH TO CONTACT YOUR PROVIDER TO DETERMINE THE
LONG-TERM SUFFICIENCY OF THE PROVIDER’S WATER
SUPPLIES.


 

(x) STORM WATER POLLUTION PREVENTION
PLAN. Seller has
previously filed a Notice of Intent ("NOI") and/or
prepared a Stormwater Pollution Prevention Plan ("SWPPP") to
satisfy its stormwater obligations arising from its work on the
Property. Seller covenants that prior to each Closing Date and
until Closing of the Lots, Seller and/or its contractor shall
comply with the SWPPP with respect to all of the Lots owned by
Seller, and shall comply with all local, state and federal
environmental obligations (including stormwater) associated with
the development of the Lots. Seller shall indemnify and hold
Purchaser harmless from all claims and causes of action arising
from breach of the foregoing covenants of Seller to the extent
there is an uncured notice of violation issued with respect to any
Lot prior to conveyance of the Lot to Purchaser. From and after
conveyance of Lots, and until such time as such Lots are subject to
Purchaser’s SWPPP (as hereafter defined), Purchaser shall be
solely responsible for complying with the SWPPP, maintaining all
required best management practices (“BMPs”), and conducting and
documenting all required inspections. Purchaser shall also comply
with all local state and federal environmental obligations
(including stormwater) associated with its ownership or development
of the Lots conveyed to Purchaser by Seller. Such obligations
include, without limitation, (i) complying with the SWPPP or the
Purchaser’s SWPPP, as applicable, (ii) maintaining all
required BMPs, and (iii) conducting and documenting all required
inspections. Purchaser covenants and Seller acknowledges that, with
respect to Lots acquired by Purchaser, Purchaser shall, within ten
(10) days after conveyance of such Lots, at its sole cost and
expense (subject to Seller’s prior written approval) submit
its own notice of intent for a new stormwater pollution prevention
plan (the “Purchaser’s
SWPPP”). Subsequent to the applicable Closing Date,
Purchaser shall comply with the Purchaser’s SWPPP with
respect to all of the Lots then owned by Purchaser, and shall
comply with all local, state and federal environmental obligations
(including stormwater) associated with its ownership or development
of all such Lots. Purchaser shall indemnify and hold Seller
harmless from all third party claims and causes of action solely
arising from breach of the foregoing covenants of
Purchaser.



 

39







 





 

(y) Oil, Gas, Water and Mineral
Disclosure. THE SURFACE ESTATE OF THE PROPERTY MAY BE OWNED
SEPARATELY FROM THE UNDERLYING MINERAL ESTATE, AND TRANSFER OF THE
SURFACE ESTATE MAY NOT NECESSARILY INCLUDE TRANSFER OF THE MINERAL
ESTATE OR WATER RIGHTS.

 


THIRD
PARTIES MAY OWN OR LEASE INTERESTS IN OIL, GAS, OTHER MINERALS,
GEOTHERMAL ENERGY OR WATER ON OR UNDER THE SURFACE OF THE PROPERTY,
WHICH INTERESTS MAY GIVE THEM RIGHTS TO ENTER AND USE THE SURFACE
OF THE PROPERTY TO ACCESS THE MINERAL ESTATE, OIL, GAS OR
WATER.

 


SURFACE
USE AGREEMENT. THE USE OF THE SURFACE ESTATE OF THE PROPERTY TO
ACCESS THE OIL, GAS OR MINERALS MAY BE GOVERNED BY A SURFACE USE
AGREEMENT, A MEMORANDUM OR OTHER NOTICE OF WHICH MAY BE RECORDED
WITH THE COUNTY CLERK AND RECORDER.

 


OIL AND
GAS ACTIVITY. OIL AND GAS ACTIVITY THAT MAY OCCUR ON OR ADJACENT TO
THE PROPERTY MAY INCLUDE, BUT IS NOT LIMITED TO, SURVEYING,
DRILLING, WELL COMPLETION OPERATIONS, STORAGE, OIL AND GAS, OR
PRODUCTION FACILITIES, PRODUCING WELLS, REWORKING OF CURRENT WELLS,
AND GAS GATHERING AND PROCESSING FACILITIES.

 


ADDITIONAL
INFORMATION. PURCHASER IS ENCOURAGED TO SEEK ADDITIONAL INFORMATION
REGARDING OIL AND GAS ACTIVITY ON OR ADJACENT TO THE PROPERTY,
INCLUDING DRILLING PERMIT APPLICATIONS. THIS INFORMATION MAY BE
AVAILABLE FROM THE COLORADO OIL AND GAS CONSERVATION
COMMISSION.



 

40







 





 

(z) Property Tax Disclosure
Summary. PURCHASER SHOULD NOT RELY ON SELLER’S CURRENT
PROPERTY TAXES AS THE AMOUNT OF PROPERTY TAXES THAT PURCHASER MAY
BE OBLIGATED TO PAY IN THE YEAR SUBSEQUENT TO PURCHASE. A CHANGE IN
OWNERSHIP OR PROPERTY IMPROVEMENTS TRIGGERS REASSESSMENTS OF THE
PROPERTY THAT COULD RESULT IN HIGHER PROPERTY TAXES. IF PURCHASER
HAS ANY QUESTIONS CONCERNING VALUATION, CONTACT THE COUNTY PROPERTY
APPRAISER’S OFFICE FOR INFORMATION.

 

(aa) Waiver of Jury Trial. TO THE
EXTENT PERMITTED BY LAW, THE PARTIES HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT TO
A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT
OF, OR IN ANY WAY RELATING TO THE PROVISIONS OF THIS
CONTRACT.

 

(bb) Confidentiality.  Purchaser and Seller agree that,
prior to each respective Closing, and thereafter if such Closing
does not occur, all information relating to the Property that is
the subject of such Closing, any reports, studies, data and
summaries developed by Purchaser, and any information relating to
the business of either party (together, the "Confidential
Information") shall be kept confidential as provided in this
section. Without the prior written consent of the other party,
prior to the applicable Closing, the Confidential Information shall
not be disclosed by Purchaser, Seller or their Representatives (as
hereinafter defined) in any manner whatsoever, in whole or in part,
except (1) to their Representatives who need to know the
Confidential Information for the purpose of evaluating the Property
and who are informed by Seller or Purchaser as applicable of the
confidential nature thereof; (2) as may be necessary for
Seller, Purchaser or their Representatives to comply with
applicable laws, including, without limitation, governmental
regulatory, disclosure, tax and reporting requirements (including,
without limitation, any applicable reporting requirements for
publically traded companies); to comply with other requirements and
requests of regulatory and supervisory authorities and
self-regulatory organizations having jurisdiction over Seller,
Purchaser or their Representatives; to comply with regulatory or
judicial processes; or to satisfy reporting procedures and
inquiries of credit rating agencies in accordance with customary
practices of Seller, Purchaser or their affiliates; and (3) to
lenders and investors for the transaction. As used herein,
"Representatives"
shall mean: Seller’s and Purchaser’s managers, members,
directors, officers, employees, affiliates, investors, brokers,
agents or other representatives, including, without limitation,
attorneys, accountants, contractors, consultants, engineers,
lenders, investors and financial advisors. Seller, at its election,
may issue an oral or written press release or public disclosure of
the existence or the terms of this Contract without the consent of
the Purchaser. "Confidential
Information" shall not be deemed to include any information
or document which (I) is or becomes generally available to the
public other than as a result of a disclosure by Seller, Purchaser
or their Representatives in violation of this Contract,
(II) becomes available from a source other than Seller,
Purchaser or any affiliates of Seller or Purchaser or their agents
or Representatives, or (III) is developed by Seller or
Purchaser or their Representatives without reliance upon and
independently of otherwise Confidential Information. In addition to
any other remedies available to a party for breach of this Section,
the non-breaching party shall have the right to seek equitable
relief, including, without limitation, injunctive relief or
specific performance, against the breaching party or its
Representatives, in order to enforce the provisions of this
section. The provisions of this section shall survive the
termination of this Contract, or the applicable Closing, for one
(1) year.



 

41







 





 

(cc) Survival. Obligations to be
performed subsequent to a Closing shall survive each
Closing.

 


[SIGNATURE PAGE
FOLLOWS]

 


 

 




 

42








 






IN
WITNESS WHEREOF, Seller and Purchaser have executed this Contract
effective as of the day and year first above written.


 


 


	

SELLER:


 


	

PYC
HOLDINGS, LLC


a
Colorado limited liability company


	
 

	
 


	
 


	
 


	

By: /s/
Mark Harding 


Name:
Mark Harding


Title:
President


Date:
June 23, 2017







 


 


 


 


	

PURCHASER:


 


	

TAYLOR
MORRISON OF COLORADO, INC. a Colorado corporation


 


 


 


	

By:

	

  /s/
Phillip R. Cross 


	

Name:
Phillip R. Cross


	

Title:
Vice President


	

Date:
June 27, 2017







 


 


 


 


	

By:

	

  /s/
G. Thomas Hennessy 


	

Name:
G. Thomas Hennessy


	

Title:
President


	

Date:
June 27, 2017







 


 


 




 








 






 



LIST OF EXHIBITS


 


 



EXHIBIT
A:       


CONCEPTUAL
DEVELOPMENT PLAN AND LOTTING DIAGRAM






 


EXHIBIT
B:                              
RESERVATIONS AND COVENANTS


 


EXHIBIT
C:                              
FINISHED LOT IMPROVEMENTS


 


EXHIBIT
D:                              
OFFSITE INFRASTRUCTURE IMPROVEMENTS


 



EXHIBIT
E:          



FORM OF GENERAL
ASSIGNMENT






 


EXHIBIT
F:                              
LOT DEVELOPMENT AGREEMENT


 


EXHIBIT
G:                              
FORM OF LETTER OF CREDIT


 


 


 


 


 


 


 


 


 


 


 




 








 







EXHIBIT A


 



CONCEPTUAL DEVELOPMENT PLAN AND LOTTING DIAGRAM


 






 

A-1








 







EXHIBIT B


 



RESERVATIONS AND COVENANTS


 


Reservation of Easements. For a
period of twenty-five (25) years following the date hereof, Grantor
expressly reserves unto itself, its successors and assigns,
easements for construction of utilities and other facilities to
support the development of the properties commonly known as "Sky
Ranch," including but not limited to sanitary sewer, water lines,
electric, cable, broad-band and telephone transmission, storm
drainage and construction access easements across the Property
allowing Grantor or its assignees the right to install and maintain
sanitary sewer, water lines, cable television, broad-band,
electric, and telephone utilities on the Property and on its
adjacent property, and further, to accommodate storm drainage from
its adjacent property. Such easements shall not allow above-grade
surface installation of facilities and shall require the
restoration of any surface damage or disturbance caused by the
exercise of such easements, shall not be located within the
building envelope of any Lot or otherwise interfere with the use of
a Lot for construction of Grantee’s homes, shall not
materially detract from the value, use or enjoyment of (i) the
remaining portion of the Property on which such easements are to be
located, or (ii) any adjoining property of Grantee, and shall
not require any reduction in allowed density for the Property or
reconfiguration of planned lots or the building envelope on a lot.
If possible, such easements shall be located within the boundaries
of existing easement areas. Grantor, at its sole expense, shall
immediately restore the land and improvements thereon to their
prior condition to the extent of any damage incurred due to
Grantor’s utilization of the easements herein
reserved.


 


Reservation of Minerals and Mineral
Rights. To the extent owned by Grantor, Grantor herein
expressly excepts and reserves unto itself, its successors and
assigns, all right, title and interest in and to all minerals and
mineral rights, including bonuses, rents, royalties, royalty
interests and other benefits that may be payable as a result of any
oil, gas, gravel, minerals or mineral rights on, in, under or that
may be produced from the Property, including, but not limited to,
all gravel, sand, oil, gas and other liquid hydrocarbon substances,
casinghead gas, coal, carbon dioxide, helium, geothermal resources,
and all other naturally occurring elements, compounds and
substances, whether similar or dissimilar, organic or inorganic,
metallic or non-metallic, in whatever form and whether occurring,
found, extracted or removed in solid, liquid or gaseous state, or
in combination, association or solution with other mineral or
non-mineral substances, provided that Grantor expressly waives all
rights to use or damage the surface of the Property to exercise the
rights reserved in this paragraph and, without limiting such
waiver, Grantor’s activities in extracting or otherwise
dealing with the minerals and mineral rights shall not cause
disturbance or subsidence of the surface of the Property or any
improvements on the Property.


 


Reservation of Water and Water
Rights. To the extent owned by Grantor, Grantor herein
expressly excepts and reserves unto itself, its successors and
assigns, all water and water rights, ditches and ditch rights,
reservoirs and reservoir rights, streams and stream rights, water
wells and well rights, whether tributary, non-tributary or not
non-tributary, including, but not limited to, all right, title and
interest under C.R.S. 37-90-137 on, underlying, appurtenant to or
now or historically used on or in connection with the Property,
whether appropriated, conditionally appropriated or unappropriated,
and whether adjudicated or unadjudicated, including, without
limitation, all State Engineer filings, well registration
statements, well permits, decrees and pending water court
applications, if any, and all water well equipment or other
personalty or fixtures currently used for the supply, diversion,
storage, treatment or distribution of water on or in connection
with the Property, and all water and ditch stock relating thereto;
provided that Grantor expressly waives all rights to use or damage
the surface of the Property to exercise the rights reserved in this
paragraph and, without limiting such waiver, Grantor’s
activities in dealing with the water and water rights herein
reserved shall not cause disturbance or subsidence of the surface
of the Property or any improvements on the Property.



 

B-1







 






 


Reimbursements and Credits.
Grantee shall have no right to any reimbursements and/or
cost-sharing agreements pursuant to any agreements entered into
between Grantor or any of Grantor’s affiliates and third
parties which may or may not affect the Property. In addition,
Grantee acknowledges that Grantor, its affiliates or one (1) or
more metropolitan district(s) have installed or may install certain
infrastructure improvements ("Infrastructure Improvements") and/or
donate, dedicate and/or convey certain rights, improvements and/or
real property ("Dedications") to Arapahoe County
(“County”) or other governmental authority
(“Authority”) which benefit all or any part of the
Property, together with adjacent properties, and which entitle
Grantor or its affiliates and/or the Property or any part thereof
to certain reimbursements by the County or other Authority or
credits by the County or other Authority for park fees, open space
fees, school impact fees, capital expansion fees and other
governmental fees which would otherwise be required to be paid to
the County or other Authority by the owner of the Property or any
part thereof from time to time ("Governmental Fees"). In the event
Grantee is entitled to a credit or waiver of Governmental Fees by
the County and/or other Authority as a result of the Infrastructure
Improvements and/or Dedications, then, in such event, Grantee shall
pay to or reimburse Grantor and/or its designated affiliates in an
amount equal to such credited or waived Governmental Fees at the
same time that the Governmental Fees would otherwise be payable by
Grantee or its assignees to the County or other Authority but for
the construction of the Infrastructure Improvements and/or the
Dedications by Grantor, its affiliates and/or metropolitan
district(s). In addition, Grantee acknowledges that Grantee or its
affiliate(s) may have negotiated or may negotiate with the County
or other Authority for reimbursements to Grantor or its affiliates.
Grantee acknowledges that certain Governmental Fees which may be
paid by Grantee to the County or other Authority may be reimbursed
to Grantor and/or its affiliates pursuant to the terms of said
agreement.


 


The
obligations and covenants set forth herein shall be binding on
Grantee, its successors and assigns, and any subsequent owners of
the Property, except that homeowners shall have no obligation for
any reimbursements provided herein. The obligation for
reimbursements described herein shall automatically terminate
(without the necessity of recording any document) with respect to
any residential lot as of the date of conveyance of such
residential lot, together with a residence constructed thereon, to
a homebuyer. Any title insurance company may rely on the automatic
termination language set forth above for the purpose of insuring
title to a home.


 


 




 

B-2








 







EXHIBIT C


 



FINISHED LOT IMPROVEMENTS


 

1. "Finished Lot Improvements"
means the following improvements on, to or with respect to the Lots
or in public streets or tracts in the locations as required by all
approving Authorities to obtain building permits for home
improvements for the Lots, and substantially in accordance with the
CDs:


 

(a) overlot grading
together with corner pins for each Lot installed in place, graded
to match the specified Lot drainage template within the CDs (but
not any Overex);


 

(b) water and sanitary
sewer mains and other required installations in connection
therewith identified in the CDs, valve boxes and meter pits,
substantially in accordance with the CDs approved by the approving
Authorities, together with appropriate markers;


 

(c) storm sewer mains,
inlets and other associated storm drainage improvements pertaining
to the Lots in the public streets as shown on the CDs;


 

(d) curb, gutter,
asphalt, sidewalks, street striping, street signage, traffic signs,
traffic signals (if any are required by the approving Authorities),
and other street improvements, in the private and/or public streets
as shown on the CDs; Seller will either have applied a final lift
of asphalt or in Seller’s discretion posted sufficient
financial guarantees as required by the County for the Lots to
qualify for issuance of building permits in lieu of such final lift
of asphalt;


 

(e) sanitary sewer
service stubs if required by the Authorities, connected to the
foregoing sanitary sewer mains, installed into each respective Lot
(to a point beyond any utility easement), together with appropriate
markers of the ends of such stubs, as shown on the
CDs;


 

(f) water service
stubs connected to the foregoing water mains installed into each
Lot (to a point beyond any utility easement), together with
appropriate markers of the ends of such stubs, as shown on the
CDs;


 

(g) Lot fill in
compliance with the geotechnical engineer’s recommendation,
and with respect to any filled area or compacted area, provide from
a Colorado licensed professional soils engineer a HUD Data Sheet
79G Certification (or equivalent) and a certification that the
compaction and moisture content recommendations of the soils
engineer were followed and that the grading of the respective Lots
complies with the approved grading plans, with overlot grading
completed in conformance with the approving Authorities approved
grading plans within a +/- 0.2’ tolerance of the approved
grading plans; however, the Finished Lot Improvements do not
include any Overex as provided in Section 10(e) of this
Contract;


 

(h) all storm water
management facilities as shown in the CDs; and



 

C-1







 






 

2. Dry Utilities. Electricity,
natural gas, and telephone service will be installed by local
utility companies. The installations may not be completed at the
time of a Closing, and are not part of the Finish Lot Improvements;
provided, however, that: (i) with respect to electric distribution
lines and street lights, Seller will have signed an agreement with
the electric utility service provider and paid all costs and fees
for the installation of electric distribution lines and facilities
to serve the Lots, and all sleeves necessary for electric, gas,
telephone and/or cable television service to the Lots will be
installed; (ii) with respect to gas distribution lines, Seller will
have signed an agreement with the gas utility service provider and
paid all costs and fees for the installation of gas distribution
lines and facilities to serve the Lots. Seller will take
commercially reasonable efforts to assist Purchaser in coordinating
with these utility companies to provide final electric, gas,
telephone and cable television service to the residences on the
Lots, however, Purchaser must activate such services through an end
user contract. Purchaser acknowledges that in some cases the
telephone and cable companies may not have pulled the main line
through the conduit if no closings of residences have occurred.
Notwithstanding the foregoing, if dry utilities have not been
installed upon substantial completion of the Finished Lot
Improvements, Seller shall be obligated to have contracted for same
and paid all costs and fees payable for such installation. Unless
Seller has contracted for such installation and paid such costs
before the Effective Date, Seller will give Purchaser notice when
such contracts have been entered and such costs paid. With respect
to any Finished Lot Improvements that are required by the
subdivision improvement agreement applicable to the Lots but which
are not addressed as part of the Finished Lot Improvements, and any
other improvements which are not required for the issuance of
building permits but which are required by the Authorities so that
dwellings and other improvements constructed by Purchaser on the
Lots are eligible for the issuance of certificates of occupancy for
homes, Seller shall complete such other improvements, to the extent
required by the County, so as not to delay the issuance of
certificates of occupancy for residences constructed by Purchaser
on the Lots.


 

3. Offsite Infrastructure. The
Finished Lot Improvements do not include (a) the Offsite
Infrastructure, which is addressed separately in Section 5 of the
Agreement, but it does include such other offsite improvements as
are necessary to obtain certificates of occupancy for homes
constructed on the Lots, provided that as aforesaid Seller shall
only be obligated to complete such improvements within a timeframe
so as not to delay issuance of such certificates of occupancy, or
(b) common area landscaping which will be installed when required
by the County or other applicable Authority so as not to delay the
issuance of building permits or certificates of occupancy for
residences constructed by Purchaser on the Lots, but (subject to
the foregoing requirements of this section 3(b)) such landscaping
will be installed with respect to each Takedown not later than 6
months after the issuance of the first certificate of occupancy in
such Takedown. [THIS SECTION PROVIDES A
DEADLINE OF SIX (6) MONTHS AFTER THE FIRST
C.O.]


 

4. Tree Lawns/Sidewalks.
Notwithstanding anything in this Contract to the contrary, Seller
shall have no obligation to construct, install, maintain or pay for
the maintenance, construction and installation of (i) any
landscaping or irrigation for such landscaping behind the curb on
any Lot that is to be maintained by the owner of such lot
(collectively, “Tree
Lawns”), but Seller shall be responsible for
constructing and installing the detached sidewalks and ramps
(collectively, “Sidewalks”)
that are located immediately adjacent to any Lot or on a tract as
required by the approved CDs, County, or any other Authority and/or
applicable laws as provided in this Contract. Purchaser shall be
responsible for installing any other lead walks, pathways, and
driveways and any other flatwork on the Lots. Purchaser shall
install all Tree Lawns on or adjacent to the Lots in accordance
with all applicable CDs, requirements, regulations, laws,
development codes and building codes of all
Authorities.



 

C-2







 






 

5. Warranty.


 

(a) Government Warranty
Period. The Authorities
require warranty periods (each a “Government Warranty
Period”) after the final completion that is applicable
to those Finished Lots Improvements that are dedicated to or owned,
and accepted for maintenance by the Authorities (the
“Public
Improvements”). In the event defects in the Public
Improvements to which a governmental warranty (each a
“Governmental
Warranty”) applies become apparent during the
applicable Government Warranty Period, then Seller shall coordinate
the repairs with the applicable Authorities and cause the service
provider(s) who performed the work or supplied the materials in
which the defect(s) appear to complete such repairs or, if such
service providers fail to correct such defects, otherwise cause
such defects to be repaired to the satisfaction of the Authorities.
Any costs and expenses incurred pursuant to a Government Warranty
in connection with any repairs or warranty work performed during
the Government Warranty Period (including, but not limited to, any
costs or expenses incurred to enforce any warranties against any
service providers) shall be borne by Seller, unless such defect was
caused by Purchaser or its contractors, subcontractors, employees,
or agents, in which event Purchaser shall pay all such costs and
expenses to the extent such defect was caused by Purchaser or its
contractors, subcontractors, employees, or agents.


 

(b) Non-Government Warranty
Period. Seller
warrants (“Non-Government
Warranty”) to Purchaser that each Finished Lot
Improvement, other than the Public Improvements, shall have been
constructed in accordance with the CDs for one (1) year from the
date of Final Completion of the Improvement (the
“Non-Government
Warranty Period”). If Purchaser delivers written
notice to Seller of breach of the Non-Government Warranty during
the Non-Government Warranty Period, then Seller shall coordinate
the corrections with Purchaser and cause the service provider(s)
who performed the work or supplied the materials in which the
breach of Non-Government Warranty appears to complete such
corrections or, if such service providers fail to make such
corrections, otherwise cause such corrections to be made to the
reasonable satisfaction of Purchaser. Any costs and expenses
incurred in connection with a breach of the Non-Government Warranty
shall be borne by Seller (including, but not limited to, any costs
or expenses incurred to enforce any warranties against service
providers), unless such breach was caused by Purchaser or its
contractors, subcontractors, employees, or agents, in which event
Purchaser shall pay all such costs and expenses to the extent the
breach was caused by Purchaser or its contractors, subcontractors,
employees, or agents.


 

(c) EXCEPT AS EXPRESSLY
PROVIDED IN THIS SECTION 3, SELLER MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND TO PURCHASER IN RELATION TO THE FINISHED LOT
IMPROVEMENTS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF HABITABILITY, MERCHANTABILITY, OR FITNESS FOR
ANY PARTICULAR PURPOSE, AND EXPRESSLY DISCLAIMS ALL OF THE SAME AND
SHALL HAVE NO OBLIGATION TO REPAIR OR CORRECT AND SHALL HAVE NO
LIABILITY OR RESPONSIBILITY WITH RESPECT TO ANY DEFECT IN
IMPROVEMENTS FOR WHICH NO CLAIM IS ASSERTED DURING THE APPLICABLE
WARRANTY PERIOD.




 

C-3








 







EXHIBIT D


 



OFFSITE INFRASTRUCTURE IMPROVEMENTS


 


 


 






 

D-1








 







EXHIBIT E


 



FORM OF GENERAL ASSIGNMENT


 


GENERAL
ASSIGNMENT


 


Reference is hereby
made to that certain Purchase and Sale Agreement dated as of
_______________, 2017 (the "Agreement"), pursuant to which Pure
Cycle Corporation, a Colorado corporation ("Seller"), has agreed to
sell to Taylor Morrison of Colorado, Inc., a Colorado corporation
("Purchaser"), the Property as described in the
Agreement.


 


For
good and valuable consideration, the receipt of which is hereby
acknowledged, Seller hereby assigns and transfers to Purchaser on a
non-exclusive basis, Seller's right, title and interest in the
following as the same relate solely to the Property, and to the
extent the same are assignable: (i) all subdivision agreements,
development agreements, and entitlements; (ii) all plats,
construction plans and specifications; (iii) all construction
warranties; and (iv) all development rights benefiting the
Property.


 


SELLER:


 


Pure
Cycle Corporation,


a
Colorado corporation


 


 



By:                                                                 






Name:
____________________________


Title:
_____________________________



Date:                                                                 






 


 




 

E-1








 







EXHIBIT F


 



LOT DEVELOPMENT AGREEMENT



Sky Ranch



(Taylor Morrison)


 


THIS
LOT DEVELOPMENT AGREEMENT (this “LDA”)
is made as of the ___ day of _________, 20____ (the
“Effective
Date”), by and between PCY HOLDINGS, LLC, a Colorado
limited liability company (“Developer”),
and TAYLOR MORRISON OF COLORADO, INC., a Colorado corporation
(“Builder,”).
Developer and Builder are sometimes individually referred to as a
“Party”
and collectively referred to as the “Parties.”


 



RECITALS

 



A.           

Developer, owns
certain real property located in Arapahoe County (the
“County”),
Colorado which Developer is developing as part of the Sky Ranch
master planned residential community (“Development”).
The preliminary concept map for Phase A of the Development
(“Concept
Plan”) is depicted on Exhibit A
attached hereto (the “Property”).
The Development is being subdivided in several subdivision filings
and developed in phases. The Builder Lots in each phase are
generally depicted on the Concept Plan.





 



B.           

Concurrently with
the execution of this LDA, pursuant to the terms of a separate
Contract for Purchase and Sale of Real Estate by and between
Developer, as seller, and Builder, as purchaser, as amended (the
“Contract”),
Builder is acquiring from Developer a portion of the Property
consisting of approximately 81 single family residential building
lots, and will be acquiring an additional 80 lots within the
Property (collectively, the “Builder
Lots”) pursuant to the Contract at a closing that will
occur subsequent to the execution of this LDA. The number and
location of the Builder Lots to be acquired by Builder under the
terms of the Contract, the number and location of the Takedown 1
Lots and the Takedown 2 Lots and the development phasing for the
Builder Lots consisting of four phases are generally depicted on
the Concept Plan attached as Exhibit
A.





 



C.           

Pursuant to the
Contract, Developer has agreed to construct or cause to be
constructed the Improvements, as hereinafter defined. The
“Improvements”
are those infrastructure improvements described in the plans and
specifications identified in Exhibit B
attached hereto as Developer causes such plans to be finalized and
approved by the applicable Approving Authorities
(“Plans”).
At such time as the Plan have been so approved, Exhibit B
will be replaced by a new list of the final approved Plans by
amendment to this Agreement (“Revised Exhibit
B”). The Improvements do not include any Offsite
Infrastructure Improvements that are being funded pursuant to the
Offsite Infrastructure Escrow Agreement, as defined in the
Contract.





 



D.           

As required by the
terms of the Contract, Builder has agreed (i) to pay the Initial
Purchase Price (as defined in the Contracts) for the Builder Lots
that the Builder acquires at a Closing; and (ii) pay that
portion of the Purchase Price for the Builder Lots defined as the
Deferred Purchase Price (as defined in the Contract) in accordance
with the terms and provisions of this LDA as the Improvements are
completed and as more particularly set forth herein.







 

F-1







 





 



E.           

The Parties now
desire to enter into this LDA in order to set forth the terms and
conditions under which the Improvements will be constructed by
Developer and provide for the payment of the Improvements, together
with such other matters as are set forth hereinafter.





 



AGREEMENT


 


NOW
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Developer and Builder
agree as follows:


 

1. Incorporation of Recitals;
Definitions. The Parties hereby acknowledge and agree to the
Recitals set forth above, which are incorporated herein by this
reference. Unless otherwise defined herein, all capitalized terms
used in this LDA and not defined in this LDA shall have the same
meaning as set forth in the Contract.

 

2. Definitions. Unless otherwise
defined herein, all capitalized terms used in this LDA and not
defined in this LDA shall have the same meaning as set forth in the
Contract.

 

3. Responsibilities of Developer and
Builder.

 

(a) Generally. Developer shall
construct, or cause to be constructed, the Improvements in the
manner set forth hereinafter. Developer shall coordinate,
administer and oversee (a) the preparation and filing of all
applications, filings, submittals, plans and specifications,
budgets, timetables and other documents pertaining to construction
and installation of the Improvements and (b) the construction and
installation of the Improvements. Developer will engage or cause to
be engaged consultants, contractors and subcontractors who will be
responsible for the construction of the Improvements and suppliers
who will be responsible for supplying labor, materials, equipment,
services and other work in connection with the construction of the
Improvements (“Service
Provider(s)”), pursuant to the Construction Contracts
(as hereinafter defined).

 

(b) Comply with Legal Requirements.
Developer will comply with all terms and conditions of applicable
law in performing their obligations under this LDA. Developer will
provide to each Builder copies of all notices filed by the
Developer with the County, and all other applicable governmental or
quasi-governmental entities or agencies (the “Approving
Authorities”) related to the Improvements and shall,
within five (5) business days of receipt thereof, provide notice to
each Builder (together with copies of all notices received by
Developer) of any notice received by Developer alleging any failure
to comply with any applicable laws, ordinances, rules, regulations,
or lawful orders of public authorities bearing on the construction
of the Improvements.

 

(c) Bonds and Assurances.
Developer, as part of the Costs, shall provide to all applicable
Approving Authorities any bonds, assurance agreements, or other
financial assurances required with respect to the construction of
the Improvements. Developer shall, as part of the Costs, provide to
all Approving Authorities all warranties, bonds and other financial
assurances required to obtain permits for, and the preliminary and
final acceptance and approval of, the Improvements. Builder shall
take all commercially reasonable actions and execute all documents
reasonably requested by Developer in its efforts to obtain releases
of all such warranties, bonds, and other financial assurances upon
final acceptance of the Improvements by the Approving
Authorities.



 

F-2







 





 

(d) Taxes, Fees and Permits.
Developer or the Service Providers shall pay all applicable sales,
use, and other similar taxes pertaining to the construction of the
Improvements, and shall secure and pay for all approvals,
easements, assessments, charges, permits and governmental fees,
licenses and inspections necessary for proper construction and
completion of the Improvements, subject to the terms of the
Contract and except as provided otherwise in this LDA. Developer
and the Service Providers shall not defer the payment of any use
taxes pertaining to the Improvements except as may be authorized
under law or agreement with the applicable taxing
authorities.

 

(e) Dedications. Developer and each
Builder upon whose property the Improvements are located shall
timely make all conveyances and dedications of the Improvements as
to any Improvements owned by such Party if and as required by the
Approving Authorities, free and clear of all liens and
encumbrances.

 

(f) Indemnity. Developer shall
indemnify, defend and hold harmless the Builder and its owners,
employees, members, managers, directors, officers, agents,
affiliates, successors and assigns (each a “Builder
Indemnitee” and collectively, the “Builder
Indemnitees”) for, from and against all claims,
demands, liabilities, losses, damages (exclusive of special,
consequential, punitive, consequential and lost profits damages),
costs and expenses, including but not limited to court costs and
reasonable attorneys’ fees, arising out of material damage
caused by Developer’s gross negligence or willful misconduct
in the performance of the construction of the Improvements.
Notwithstanding the foregoing, Developer shall not be obligated
under this LDA to indemnify the Builder Indemnitees to the extent
such liabilities result from the negligence or willful misconduct
of any Builder Indemnitee, or for any claims arising out of
geologic, soils, ground water or other physical conditions
affecting the Lots, or underdrains systems installed according to
Plans reviewed and approved by a Builder. Builder shall indemnify,
defend and hold harmless Developer and its respective owners,
affiliates, employees, members, managers, directors, officers,
agents, successors and assigns (each an “Developer
Indemnitee” and collectively, the “Developer
Indemnitees”) for, from and against all claims,
demands, liabilities, losses, damages, costs and expenses,
including but not limited to court costs and reasonable
attorneys’ fees, arising out of or relating to (i)
Builder’s or its successor’s development, construction,
use, ownership, management, marketing or sales activities
associated with the Lots and the Property (including, without
limitation, land development, grading, excavation, trenching, and
soils compaction, and construction on the Builder Lots performed by
or on behalf of a Builder); (ii) the soils, subsurface geologic,
groundwater or other physical conditions present on or affecting
the Builder Lots; (iii) any change subsequent to the Effective Date
in the Entitlements to the extent that the change was caused,
requested or made by Builder or the design of any residences
(“Homes”)
constructed on the Builder Lots other than claims arising solely
out of Developer’s gross negligence or willful misconduct in
the performance of Developer’s obligations under this LDA;
(iv) homeowner claims asserting or relating to any implied warranty
of habitability, merchantability, or fitness for any particular
purpose in connection with Builder’s construction of one or
more Homes on the Builder Lots; or (v) Improvements and other work
completed or deemed completed in accordance with the Construction
Standard except for warranty claims properly and timely asserted
pursuant to Section 4.8 of this LDA. Notwithstanding the foregoing,
Builders shall not be obligated under this LDA to indemnify, defend
or hold harmless Developer from claims arising solely out of a
successor’s development, construction, use, ownership,
management, marketing or sales activities associated with the
Builder Lots and the Property if such successor is approved by
Developer and gives Developer a substitute indemnity that is
equivalent to the indemnity provided by the Builder under this
Section 3.6 and such successor is financially sound as reasonably
determined by Developer. Obligations under this Section shall
survive the termination or expiration of this LDA.



 

F-3







 





 

(g) Insurance. Developer shall
procure and maintain, and shall cause the Service Providers to
procure and maintain, the insurance described in Exhibit C
attached hereto during the construction of the Improvements and any
warranty work performed on the Improvements.

 

(h) Independent Contractor.
Developer is an independent contractor and neither Developer nor
its employees are entitled to worker’s compensation benefits
or unemployment insurance benefits through any Builder as a result
of performing under the LDA. The Developer is responsible for and
obligated to pay all assessable federal and state income tax on
amounts earned or paid under this LDA.

 

4. Construction of
Improvements.

 

(a) Plans and Specifications.
Developer shall (i) diligently finalize, process and obtain
approval of the Plans for the Improvements from the applicable
Approving Authorities to the extent required by such entities, and
(ii) apply to the utility service provider for the preparation of
dry utility plans (“Utility
Plans”). Upon receipt of the approved Plans for the
Improvements and the Utility Plans for the dry utilities from the
utility service provider, Developer will furnish a copy of such
Utility Plans to the Builder. After replacement of Exhibit B by
the Revised Exhibit B, if Developer elects to amend the Plans in a
manner that will result in a Material Change (defined below), then
Developer shall provide written notice of the Material Change (a
“Notice of Material
Change”) to Builder if the Builder Lots are affected
by the change. The Notice of Material Change shall describe the
modification to the Plans requested by Developer. Builder shall
have five (5) business days after receipt of the Notice of Material
Change to provide written notice to the Developer if it objects to
the proposed Material Change (a “Notice of Material
Change Objection”), which shall describe revisions to
the Material Change that would render it acceptable to Builder. If
Builder fails to give a timely Notice of Material Change Objection
to Developer, the Material Change shall be deemed approved by
Builder. If Developer performs any Material Change without first
providing Builder with a Notice of Material Change, or after
Receiving a Notice of Material Change Objection, which objection
has not been resolved in accordance with the following provisions,
then Developer shall assume responsibility for the cost of
correcting any such change, as well as the time impacts for making
such correction. Within five (5) business days after delivery to
Developer of a Notice of Material Change Objection, said Developer
and the Builder shall meet to approve or reject the Material
Change. If Developer and Builder cannot reach an acceptable
resolution regarding the Notice of Material Change Objection, the
dispute shall be resolved pursuant to the arbitration provision set
forth in Section 7 below. For
purposes of this Section (a), a “Material
Change” shall consist only of the following changes to
the approved Plans for the Improvements to be installed for the
benefit of the Property which have previously been approved by the
applicable Approving Authorities:



 

F-4







 





 

(i) Reduction of the
total number of Builder Lots available for the construction of
residences by more than 10%.

 

(ii) Material adverse
impact on the ability to serve basements with eight (8) foot
foundation wall heights with gravity flow sanitary sewer service on
the Builder Lots.

 

(iii) Changes greater
than one half (1/2) of one (1) foot to the proposed finish grade
elevation for any of the Builder Lots.

 

(b) Construction Standard.
Developer shall cause the applicable Improvements to be constructed
in accordance with the Construction Standard and shall obtain
preliminary and final acceptance thereof by all Approving
Authorities. As used herein, the term “Construction
Standard” means construction and installation of the
Improvements in a good, workmanlike and lien-free manner and in
substantial conformity with the Plans (as may be modified pursuant
to the terms hereof), the applicable requirements of the Approving
Authorities, and the “Finished Lot Standard” set forth
on Exhibit D
attached hereto. The Construction Standard does not include any
so-called “over excavation” or comparable preparation
or mitigation of the soil (hereinafter defined as the
“Overex”)
on the Builder Lots and Builder has sole responsibility with
respect to any Overex that the Builder determines to undertake on
the Builder Lots. The terms and provision of Section 10(e) (Over
Excavation) of the Contract are hereby incorporated herein by this
reference. The Parties shall reasonably cooperate in coordinating
the Builder’s completion of the Overex so that the Overex can
be properly sequenced with Developer’s completion of the
Improvements. In no event shall Developer be liable to Builder for
any delay, costs or damages incurred with respect to such Overex,
even if caused by any delay in installation of Improvements
sequenced ahead of the Overex, and all timeframes shall be deemed
extended appropriately in the event of any delay in completing such
Overex in accordance with the Construction Schedule (as hereinafter
defined).

 

(c) Construction Contracts for
Work. Developer and contractors of Developer shall contract
for all of the work and materials comprising the applicable
Improvements. Developer shall have the right to bid, pursue,
negotiate, agree to and execute contracts and agreements with
Service Providers for the work and materials comprising the
Improvements (each a “Construction
Contract” and collectively, the “Construction
Contracts”), based upon forms that Developer deems
necessary or appropriate in its commercially reasonable discretion;
provided, however, that Developer shall deliver written notice to
Builder after it shall enter into any Construction Contract, which
notice shall identify the Service Provider(s). Developer shall
attempt to cause each Construction Contract, in addition to other
matters, to (i) allow for the automatic assignment, without need
for further action, of all of Developer’s rights (including,
without limitation, the warranty and indemnity provisions thereof)
to Builder on a non-exclusive basis in the event of replacement of
Developer pursuant to the terms of this LDA, and identify Builder
as an intended third-party beneficiaries of the Construction
Contract, (ii) require the Service Provider to name the Builder as
additional insureds on all required insurance maintained by the
Service Provider for a period expiring not sooner than final
acceptance of the Improvements by the applicable Approving
Authority for which such Service Provider furnished materials or
work, (iii) require the Service Providers to provide a
warranty on materials and labor supplied by such Service Provider
for a period coterminous with the warranty period required by the
applicable Approving Authorities for Improvements to be dedicated
to an Approving Authority, but in no event less than one (1) year
for any Improvement, (iv) require the Service Provider to perform
its work in accordance with the Construction Standard, (v) require
the Service Provider to indemnify, defend, and hold harmless
Developer from all claims and causes of action arising from the
negligent acts or omissions or intentional misconduct of the
Service Provider or its employees or agents, (vi) permit retainage
in an amount of at least five percent (5%) of the amounts payable
to the Service Provider, until the work to be completed pursuant to
such contract has been substantially completed and, if applicable,
granted initial acceptance by the applicable Approving Authority;
(vii) provide the Developer the right, but not the obligation, to
pay subcontractors and suppliers of the Service Provider directly
or by joint check, and (viii) provide for no limitation on remedies
against the Service Provider for a default except the prohibition
of recovery of punitive damages. Upon receipt of written request
from Builder, Developer shall deliver a copy of each Construction
Contract to such Builder.



 

F-5







 





 

(d) Commencement and Completion
Dates. Developer shall cause construction of the
Improvements to be commenced and completed as follows:

 

(i) Commencement; Construction Schedule;
Completion. The Improvements will be completed in phases
consisting of two phases with respect to the Takedown 1 Lots and
two subsequent phases with respect to the Takedown 2 Lots for a
total of four phases (each a “Phase”). Developer shall commence
and complete each component of the Improvements in each Phase in
accordance with the construction schedule set forth on Exhibit E
attached hereto (the “Construction
Schedule”), and cause Substantial Completion of the
Improvements in each Phase to occur on or before the applicable
deadline therefor as set forth in the Construction Schedule (the
“Substantial
Completion Deadline”); provided, however, subject to
Section 4.4.2
below. The Construction Schedule will provide for the first Phase
(“Phase
1”) to be substantially completed ten (10) months
after the First Closing, with the second Phase (“Phase
2”) to be substantially completed nine (9) months
after substantial completion of Phase 1, with the third Phase
(“Phase
3”) to be substantially completed nine (9) months
after the Second Closing and the fourth Phase (“Phase
4”) to be substantially completed nine (9) months
after substantial completion of Phase 3, all subject to
Section 4.4.2
below. Developer may cause Improvements to be constructed and
installed as Developer deems necessary, in the Developer’s
commercially reasonable discretion, to coordinate such Improvements
with the development of portions of the Development other than the
Property; or cause Improvements to be constructed and installed in
accordance with scheduling requirements of the County and other
Approving Authorities. Notwithstanding anything to the contrary,
the Developer shall have no obligation to install landscaping
during the months of October through April.

 

(ii) Force Majeure. Notwithstanding
any contrary provision of this LDA, the completion dates and all
interim milestones (if any) set forth on the Construction Schedule,
the Substantial Completion Deadline, and the time for performance
of Developer’s other obligations under the Construction
Schedule or this LDA shall be extended by a period of time equal to
any period that such performance or progress in construction of the
Improvements is delayed due to any Dispute, as defined below, acts
or failure to act of any Approving Authority, strike, riot, act of
war, act of terrorism, act of violence, weather, act of God, or any
other act, occurrence or non-occurrence beyond Developer’s
reasonable control (each, an “Uncontrollable
Event”).



 

F-6







 





 

(e) Substantial
Completion.

 

(i) Definition of Substantial
Completion. “Substantial
Completion” of the Improvements (or applicable
component thereof) shall be deemed to have occurred when all of the
following have occurred with respect to the Improvements (or
applicable component thereof):

 

(1) Developer has
substantially completed or corrected all punchlist items provided
by the Approving Authorities and the Builders affecting the
Improvements (or applicable component thereof) in accordance with
Section
(ii) below so that
Builder is not precluded from obtaining from the Approving
Authorities building permits for houses constructed, or to be
constructed, on any Builder Lots solely as a result of such
punchlist items (or applicable component thereof) not being
complete, and Developer has obtained lien releases reasonably
acceptable to Builder from all contractors performing work related
to the Improvements;

 

(2) The Improvements
(or applicable component thereof) have been installed pursuant to
the Construction Standard and shall be substantially complete so
that Builder is not precluded from obtaining from the Approving
Authorities building permits for houses constructed, or to be
constructed, on any Builder Lots solely as a result of such
Improvements (or applicable component thereof) not being
complete;

 

(3) Any Improvements
(or applicable component thereof) that are intended to be dedicated
to or accepted by an Approving Authority shall have been inspected
and preliminarily accepted by the applicable Approving Authority
(subject to the Government Warranty Period (as defined below));
except that those Improvements that are (x) to be phased, if any,
as set forth in the Entitlements, or (y) not necessary or required
by the Approving Authority to occur prior to issuance of a building
permit or certificate of occupancy for Homes on the Lots, including
but not limited to certain landscape and park improvements (the
“Additional
Improvements”) will not be required to achieve
Substantial Completion, but Developer shall nevertheless be
required to complete construction and obtain acceptance of such
Additional Improvements by the applicable Approving Authority after
Substantial Completion at such time as is required by the
applicable Approving Authorities and so that Builder is not
precluded from obtaining from the Approving Authorities building
permits or certificate of occupancy for houses constructed, or to
be constructed, on any Builder Lots solely as a result of such
Additional Improvements (or applicable component thereof) not being
complete.

 

(4) No mechanics’
or materialmen’s liens shall have then been filed against any
of the Builder Lots with respect to the Improvements and lien
waivers have been obtained from the Service Providers that
constructed the Improvements (or applicable portion thereof), or
the Developer has obtained a bond to insure over any such
mechanics’ or materialmen’s liens.

 

(5) With respect to any
Improvements that are required by the Construction Standard or that
are required by the subdivision improvement agreement applicable to
the Builder Lots but which are not addressed as part of the
Construction Standard or the Finished Lot Standard, and any other
Improvements which are not required for the issuance of building
permits but which are required by the Approving Authorities so that
Homes and other improvements constructed by Builder on the Builder
Lots are eligible for the issuance of certificates of occupancy for
homes, the Developer shall complete or cause the completion of such
other Improvements, to the extent required by the Approving
Authorities, so as not to delay the issuance of certificates of
occupancy for Homes constructed by Builder on the Builder
Lots.



 

F-7







 





 

(ii) Inspection.

 

(1) Notice to Builder. Developer
shall notify Builder in writing when Substantial Completion of the
Improvements (or applicable component thereof) on the Builder Lots
has been achieved, except for minor punch-list work which does not
affect the ability to obtain building permits or certificates of
occupancy, as applicable, for Homes on the Lots, and the date(s)
and time(s) the Approving Authorities will inspect such
Improvements (or applicable component thereof). Within ten (10)
days after receipt by Builder of such notice from the Developer,
Developer and Builder shall jointly inspect the Improvements (or
applicable component thereof) on the Builder Lots and produce a
punchlist (“Builder
Punchlist”). The Builder Punchlist may not contain any
items other than incomplete Improvements or components thereof,
deficient or defective construction of the Improvements or
components thereof, or failure to construct the Improvements or
components thereof in accordance with the Construction Standard.
Builder shall not be able to object or provide Builder Punchlist
items for any portion of the Improvements previously inspected by
the Builder. If the Parties are unable to agree upon a Builder
Punchlist within five (5) days after the joint inspection described
above, then any dispute related to such punchlist shall be
submitted to the expedited dispute resolution procedures in
accordance with Section
7 below. Developer will give Builder notice of the date and
time of inspections of the Improvements by the Approving
Authorities and Builder may attend such inspections. Developer will
attempt to provide Builder with copies of any inspection reports or
punchlists received from the Approving Authorities in connection
with the inspection of the Improvements, and Developer shall be
responsible to correct punchlist items from the Approving Authority
and items set forth on the Builder Punchlist. Notwithstanding
anything to the contrary including any Builder Punchlist, if an
Approving Authority grants preliminary approval or construction
acceptance to any of the Improvements, or if the engineer issues a
certification with respect to the grading, fill and compaction in
accordance with item (g) of Exhibit D,
then it shall conclusively be presumed that such Improvement or
work was completed in accordance with the Construction Standard,
subject to completion of the punchlist items provided by the
Approving Authority. If an item is not identified as incomplete on
the Builder Punchlist, then it shall conclusively be presumed that
such Improvement was completed in accordance with the Construction
Standard, and thereafter the Builder and not Developer shall be
responsible for repairing damage to such Improvement occurring
after completion of the Builder Punchlist work unless such damage
is determined either by agreement of the parties or pursuant to
Section 7 of this
LDA to be the result of a design or construction defect. Disputes
regarding Builder Punchlist items and matters will be resolved
pursuant to the expedited dispute resolution procedures set forth
in Section 7 of
this LDA.

 

(2) Correction of Punchlist Items.
Developer shall cause any punchlist items to be corrected within
the time required by the County or other applicable Approving
Authorities, or such shorter time as may be required pursuant to
the Construction Schedule.



 

F-8







 





 

(3) Interim Inspections. Upon
reasonable prior notice, each Builder may inspect the construction
of the Improvements on the Builder Lots; provided, however, such
inspection shall be (i) at the sole risk of Builder, (ii) such
inspection shall be non-invasive and shall be performed in a manner
that does not interfere with or result in a delay in the
construction of the Improvements, and (iii) Builder shall indemnify
Developer for any damage resulting from such
inspection.

 

(f) Self-Help Remedy.

 

(i) Notice of Default. If
Developer: (a) breaches its obligation under this LDA to complete
or cause the completion of any Improvement in accordance with the
Plans or Construction Schedule (as extended by any Uncontrollable
Event); (b) otherwise breaches any material obligation under this
LDA; (c) fails to comply with any material provision of its
Construction Contracts with Service Providers beyond any applicable
express notice or cure periods; or (d) files a petition for relief
in bankruptcy or makes an assignment for the benefit of its
creditors, or admits in writing its inability to pay its debts
generally as they become due (each a “Bankruptcy
Event”), then the Builder may deliver written notice
of the breach to Developer (a “Notice of
Default”). Each of the events set forth in Subsections
(a) through (d) inclusive of the preceding sentence shall be herein
referred to as a “Constructing Party
Default.” For any Constructing Party Default other
than a Bankruptcy Event, the Developer shall have thirty (30) days
after Developer’s receipt of the Notice of Default from the
Builder to cure the Constructing Party Default (the
“Cure
Period”); provided, however, if the nature of the
Constructing Party Default is such that it cannot reasonably be
cured within thirty (30) days, the Cure Period shall be deemed
extended for a reasonable period of time (not to exceed an
additional sixty (60) days) so long as Developer commenced in good
faith and with due diligence to cause such Constructing Party
Default to be remedied. If Developer does not cause the cure of the
Constructing Party Default within the Cure Period (as may be
extended pursuant to the preceding sentence, and subject to
Uncontrollable Events), or if a Bankruptcy Event occurs (either, an
“Event of
Default”), then the Builder may elect to appoint
either itself or another qualified third party (which may include
another builder under contract with Developer to purchase lots
within the Development, provided that such builder agrees to, and
accepts, such appointment) (“Substitute
Constructing Party”) to assume and take over the
construction of the Improvements by providing written notice to
Developer of its election (the “Assumption
Notice”). Substitute Constructing Party’s
assumption of the construction of the Improvements shall not
include the assumption of any liability for acts or omissions
occurring prior to the Assumption Notice, or payment of any
“Constructing Party Cost Overruns” (as defined below)
incurred prior to the Assumption Notice, which Constructing Party
Cost Overruns shall remain the sole responsibility of the
Developer, or receipt of any cost savings prior to the Assumption
Notice; provided, however, that the Substitute Constructing Party
shall be entitled to an administrative fee in an amount equal to
two percent (2%) of the remaining Costs (as defined below) actually
paid, which administrative fee shall be included in the
Constructing Party Cost Overruns. The Builder’s election to
appoint a Substitute Constructing Party to assume and take over the
construction of the Improvements and to exercise and enforce the
rights and obligations set forth in Section 4.6.2 below shall
thereafter be the Builder’s sole and exclusive
remedy.



 

F-9







 





 

(ii) Assumption Right. If Builder
delivers an Assumption Notice, then: (i) Developer shall cooperate
to allow the Substitute Constructing Party to take over and
complete the incomplete Improvements, including the execution and
delivery to the Substitute Constructing Party of such agreements,
documents or instruments as may be reasonably necessary to assign
to the Substitute Constructing Party all Construction Contracts
with third parties pertaining to the Improvements; (ii) Developer
shall remain responsible for all Constructing Party Cost Overruns
(as hereinafter defined), but Developer shall be relieved of all
further obligations under this LDA with respect to the completion
of the incomplete Improvements subsequent to such assumption;
(iii) Developer shall remain liable for its gross negligence
or willful misconduct, and any indemnification obligations
specified herein incurred prior to the date of such assumption; and
(v) Substitute Constructing Party shall assume and perform all
obligations under all Contracts for Improvements which Substitute
Constructing Party will complete to the extent such obligations are
to be performed after the date of delivery of the Assumption
Notice. Upon delivery of an Assumption Notice, Substitute
Constructing Party shall be obligated to complete the Improvements
and pay the Costs incurred thereafter by Substitute Constructing
Party to complete the Improvements. If a Substitute Constructing
Party assumes the obligation to construct the Improvements, the
Builder’s obligation for the payment of costs under Section
6.1 which are due and payable after the date of the Assumption
Notice shall be suspended and thereafter terminated if the
Substitute Constructing Party achieves Substantial Completion of
any unfinished Improvements. In the event of an Assumption Notice,
the Substitute Constructing Party shall indemnify, defend and hold
harmless the Developer and its members, managers, shareholders,
employees, directors, officers, agents, affiliates, successors and
assigns for, from and against all claims, demands, liabilities,
losses, damages (exclusive of special, consequential, punitive,
speculative or lost profits damages), costs and expenses, including
but not limited to court costs and reasonable attorneys’
fees, that accrue after the date of the Assumption Notice and arise
out of the Substitute Constructing Party’s completion of the
Improvements, and this indemnity shall not apply to any claims,
demands, liabilities, losses, damages, costs, expenses, acts or
omissions arising or accruing before the date of the Assumption
Notice. The obligations under this Section shall survive the
termination or expiration of this LDA.



 

F-10







 





 

(iii) Appointment of Substitute Constructing
Party. For purposes of exercising the self-help remedies set
forth in this Section (f) with respect to an Event of
Default, Builder may elect to appoint either itself or another
Substitute Constructing Party (which may include another builder
under contract with Developer to purchase lots within the
Development, provided that such builder agrees to, and accepts,
such appointment) who shall then have the right and authority to
act pursuant to the self-help provisions of this Section (f) (“Designated
Builder”). If the cure of an Event of Default requires
the construction or completion of Improvements that serve both the
Builder Lots and other lots that are owned by another homebuilder
that is under contract with Developer for the completion of such
Improvements (the “Joint
Improvements”), then Richmond American Homes of
Colorado (“Richmond”)(to
the extent that it has purchased lots in the Development from
Developer) shall, at it’s election, have the first right and
option (ahead of all other builders within the Development) to step
in and act on behalf of all such builders pursuant to the self-help
provisions of this Section
4.6 with respect to the Joint Improvements
(“Builder’s
Step-In Option”). Richmond may exercise the Builder
Step-In Option by giving notice to Developer and the other builders
within fifteen (15) days following the Event of Default
(“Builder’s
Step-In Deadline”). If Richmond does not exercise
Builder’s Step-in Option prior to the Builder Step-In
Deadline, then the other builders shall have the right to exercise
an option to step-in and select a Substitute Contracting Party to
act on behalf of all such builders pursuant to the self-help
provisions of this Section
4.6 with respect to the Joint Improvements by giving notice
to Developer and the other builders within fifteen (15) days
following the expiration of Builder’s Step-In Deadline. The
Developer, Builder, the other builders(s) affected by any joint
improvements and the Title Company will at Closing execute a
“Joint Improvements
Memorandum” that describes the rights and obligations
of Developer, Builder, such other builder(s) and Title Company and
such document will supplement this Lot Development Agreement
regarding the installation and construction of any Joint
Improvements. The form of the Joint Improvements Memorandum shall
be agreed upon during the Inspection Period under the Contract and
attached to this Lot Development Agreement as Exhibit
I.



 

F-11







 





 

(g) Over-Excavation of Lots. The
Parties acknowledge that the Improvements shall not include Overex
of the Lots. Builder, with respect to its Builder Lots shall, at
its sole cost, cause the Overex to be performed, and shall have the
right to enter such Builder Lots for the purposes of performing the
Overex; provided, however, that such entry shall be performed in a
manner that does not materially interfere with or result in a
material delay or an increase in the Costs or any expenses in the
construction of the Improvements, and provided further that Builder
shall promptly repair any portion of the Builder Lots and adjacent
property that is materially damaged by Builder or its agents,
designees, employees, contractors, or subcontractors in performing
the Overex. THE PARTIES ACKNOWLEDGE AND AGREE THAT DEVELOPER IS NOT
PERFORMING ANY OVER-EXCAVATION OF THE BUILDER LOTS AND THAT THE
DEVELOPER SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO OR
ARISING OUT OF ANY OVER-EXCAVATION OF THE BUILDER LOTS OR EXPANSIVE
SOILS PRESENT ON THE BUILDER LOTS AND DEVELOPER EXPRESSLY DISCLAIMS
ANY LIABILITY WITH RESPECT TO ANY OVER-EXCAVATION OF THE LOTS AND
EXPANSIVE SOILS PRESENT ON THE BUILDER LOTS. BUILDER SHALL
INDEMNIFY, DEFEND AND HOLD HARMLESS DEVELOPER AND ITS SHAREHOLDERS,
EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, AFFILIATES, SUCCESSORS AND
ASSIGNS FOR, FROM AND AGAINST ALL CLAIMS, DEMANDS, LIABILITIES,
LOSSES, DAMAGES (EXCLUSIVE OF SPECIAL, CONSEQUENTIAL, PUNITIVE,
SPECULATIVE OR LOST PROFITS DAMAGES), COSTS AND EXPENSES, INCLUDING
BUT NOT LIMITED TO COURT COSTS AND REASONABLE ATTORNEYS’
FEES, ARISING OUT OF ANY EXPANSIVE SOILS, OVER-EXCAVATION OR OTHER
SOIL MITIGATION OR BUILDER’S ELECTION NOT TO PERFORM SOILS
MITIGATION, ON OR PERTAINING TO THE BUILDER LOTS. THE PROVISIONS OF
THIS SECTION 4.7 SHALL EXPRESSLY SURVIVE THE EXPIRATION OR
TERMINATION OF THIS LDA.

 

(h) Warranty Periods.

 

(i) Government Warranty Period. The
Approving Authorities may require a warranty period after the
Substantial Completion of the Improvements (a “Government Warranty
Period”). In the event defects in the Improvements to
which a governmental warranty applies become apparent during the
Government Warranty Period, then Developer shall coordinate the
repairs with the applicable Approving Authorities and cause the
Service Provider(s) who performed the work or supplied the
materials in which the defect(s) appear to complete such repairs
or, if such Service Providers fail to correct such defects,
otherwise cause such defects to be repaired to the satisfaction of
the Approving Authorities. Any costs and expenses incurred in
connection with any repairs or warranty work performed during the
Government Warranty Period (including, but not limited to, any
costs or expenses incurred to enforce any warranties against any
Service Providers) shall be borne by Developer and shall be
included in the Constructing Party Cost Overruns, unless such
defect or damage was caused by Builder or its contractors,
subcontractors, employees, or agents, in which event Builder shall
pay all such costs and expenses to the extent caused by Builder or
its contractors, subcontractors, employees, or agents. Any damage
to an Improvement that was not listed on the Builder Punchlist
shall be presumed to have been caused by Builder or its
contractors, subcontractors, employees, or agents, unless the
Builder conclusively proves that the damage was caused as the
result of a design or construction defect in the original
construction by Developer as determined by agreement of the parties
or as determined in a legal proceeding pursuant to the Expedited
Dispute procedure in Section 7, below.



 

F-12







 





 

(ii) Non-Government Warranty Period.
Developer warrants (“Non-Government
Warranty”) to Builder that each Improvement to which a
Governmental Warranty Period does not apply shall have been
constructed in accordance with the Plans for one (1) year from the
date of Substantial Completion of the Improvement (the
“Non-Government
Warranty Period”). If Builder delivers written notice
to Developer of breach of the Non-Government Warranty during the
Non-Government Warranty Period, then Developer shall coordinate the
corrections with the Builder and cause the Service Provider(s) who
performed the applicable work or supplied the applicable materials
to complete such corrections or, if such Service Providers fail to
make such corrections, otherwise cause such corrections to be made.
Any costs and expenses incurred in connection with a breach of the
Non-Government Warranty shall be borne by Developer (including, but
not limited to, any costs or expenses incurred to enforce any
warranties against Service Providers), and shall be included in the
Constructing Party Cost Overruns, unless such breach was caused by
Builder or its contractors, subcontractors, employees, or agents,
in which event the Builder shall pay all such costs and expenses to
the extent caused by Builder or its contractors, subcontractors,
employees, or agents. Any damage to an Improvement that was not
listed on the Builder Punchlist shall be presumed to have been
caused by Builder or its contractors, subcontractors, employees, or
agents, unless Builder conclusively proves that the damage was
caused as the result of a design or construction defect in the
original construction by Developer. EXCEPT AS EXPRESSLY PROVIDED IN
SECTION 4.8.1 OR
4.8.2, THE DEVELOPER PARTIES MAKE NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND TO BUILDER IN RELATION TO THE IMPROVEMENTS,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF HABITABILITY, MERCHANTABILITY, OR FITNESS FOR ANY
PARTICULAR PURPOSE, AND EXPRESSLY DISCLAIMS ALL OF THE SAME AND
SHALL HAVE NO OBLIGATION TO REPAIR OR CORRECT ANY DEFECT IN
IMPROVEMENTS FOR WHICH NO CLAIM IS ASSERTED DURING THE APPLICABLE
WARRANTY PERIOD. The preceding sentence does not affect, alter or
modify any Service Provider’s obligations to repair or
correct any defects in Improvements and shall not be construed as a
limitation on the Builder’s statutory rights or remedies
which may not be modified by contract.

 

(i) License for Construction. Each
Party hereby grants to Developer or the Substitute Constructing
Party (as applicable) and the Service Providers a temporary,
non-exclusive license to enter upon the parcel within the Property
owned by such Party as reasonably necessary for the installation of
the Improvements, rough grading of the Builder Lots, stubbing of
utilities and/or the performance of Developer’s (or
Substitute Constructing Party’s, as applicable)
responsibilities under this LDA. Each Party further agrees to grant
such separate written rights of entry and/or licenses in or upon
the parcel owned by such Party as may be reasonably necessary for
installation of the Improvements, rough grading of the Builder Lots
and stubbing of utilities. No rights of entry and/or licenses over
any portion of the Property may be exercised or used by a Party in
any fashion that would unreasonably interfere with or adversely
impact any other Party’s development of its parcel. The
rights under this Section or any instruments delivered hereunder
shall terminate upon the expiration of all Government Warranty
Periods.



 

F-13







 





 

(j) Liens. Developer shall pay, or
cause to be paid, when due, all liens and claims for labor and/or
materials furnished to the Builder Lots pursuant to this LDA to
prevent the filing or recording by any third party of any
mechanics’, materialmen’s or other lien, stop notice or
bond claim or any attachments, levies or garnishments (collectively
“Liens”)
involving the Improvements. Developer will, within sixty (60)
calendar days after written notice from Builder or after Developer
otherwise become aware of such Liens, terminate the effect of any
Liens by filing or recording an appropriate release or bond if so
requested by Builder. If a Builder requests a Developer to file and
obtain any such release or bond and Developer fails to do so within
sixty (60) calendar days of such request, Builder may obtain such
bond or secure such release on behalf of Developer, and Developer
shall reimburse Builder for all costs and fees related thereto
within thirty (30) days after receipt of written request
therefor.

 

(k) Tree Lawns/Sidewalks.
Notwithstanding anything in this LDA to the contrary, Developer
shall have no obligation to construct, install, maintain or pay for
the maintenance, construction and installation of (i) any
landscaping or irrigation for such landscaping behind the curb on
any Builder Lot that is to be maintained by the owner of such lot
(collectively, “Tree
Lawns”), but Developer shall be responsible for
constructing and installing the detached sidewalks and ramps
(collectively, “Sidewalks”)
that are located immediately adjacent to any Builder Lot or on a
tract as required by the approved Plans, County, or any other
Approving Authority and/or applicable laws as provided in this LDA.
Builders shall be responsible for installing any other lead walks,
pathways, and driveways and any other flatwork on the Builder Lots.
Builder shall install all Tree Lawns on or adjacent to its Builder
Lots in accordance with all applicable Plans, requirements,
regulations, laws, development codes and building codes of all
Approving Authorities and such Tree Lawns shall not be considered
part of the Improvements.

 

(l) Soil Hauling. Builder shall be
responsible for relocating from the Builder Lots all surplus soil
generated during Builder’s construction of structures on the
Builder Lots. At the option of the Seller under the Contract, in
its sole discretion, the surplus soil shall be transported at
Builder’s expense to a site designated by Seller within the
Development. If and to the extent that Seller establishes stock
pile site within the Property, Seller may modify any such stock
pile locations from time to time in Seller’s discretion. At
Seller’s request, Builder shall supply copies of any reports
or field assessments identifying the material characteristics of
the excess soil prior to accepting such soil for fill purposes.
Notwithstanding the foregoing, in the event that Seller does not
establish a stock pile site or elects not to accept any surplus
soils from Builder, then Builder shall, at its sole expense, find a
purchaser or taker or otherwise transport and dispose of such
surplus soil upon such terms as it shall desire, but such surplus
soil must still be removed from the Property and may not be
stockpiled on the Property or within the Development after
construction has been completed.



 

F-14







 





 

5. Costs of
Improvements.

 

(a) Definition of Costs. As used
herein, the term “Costs”
shall mean all hard and soft costs incurred in connection with the
design (including all engineering expenses), construction and
installation of the Improvements, including, but not limited to,
costs of labor, materials and suppliers, engineering, design and
consultant fees and costs, blue printing services, construction
staking, demolition, soil amendments or compaction, any processing,
plan check or permit fees for the Improvements, engineering
services required to obtain a permit for and complete the
Improvements, costs of compliance with all applicable laws, costs
of insurance required by this LDA, costs of any financial
assurances, any corrections, changes or additions to work required
by the Approving Authorities or necessitated by site conditions,
municipal, state and county taxes imposed in connection with
construction of the Improvements, any warranty work, and any other
costs incurred in connection with the performance of the
obligations of Developer or the Substitute Constructing Party (as
applicable) hereunder to complete the Improvements.

 

(b) Budget. Attached hereto as
Exhibit
F is an estimate of the Costs to construct the Improvements
(the “Budget”).
The Costs identified on the Budget are referred to herein as
“Budgeted
Costs.” Builders shall pay or cause to be paid
pursuant to Article 6 below a share of
the Budgeted Costs. As consideration for the Developer’s
performance under this LDA and the construction of the
Improvements, Builder shall pay the Deferred Purchase Price which
is equal to (i) a share of the Budgeted Costs in the amount of
Forty Seven Thousand Five Hundred Dollars ($47,500.00) per Builder Lot plus the Escalator
(which based on a total of 161 Builder Lots is equal to
$7,674,500.00 plus the Escalator), and (ii) the Builder Cost
Overruns, as defined below (collectively, the “Maximum Builder
Costs”).

 

(c) Cost Overruns. Notwithstanding
anything in this LDA to the contrary, the Developer shall pay (i)
all costs for changes to the Plans or Improvements required by any
Approving Authority or to correct any error or defect in the Plans
that cause the Costs to exceed the Budgeted Costs, and (ii) the
costs of all other changes to the Plans or Improvements requested
by the Developer that cause the Costs to exceed the Budgeted Costs
(collectively, the “Constructing Party
Cost Overruns”). The Builder shall pay all costs of
changes to the Plans or Improvements requested by Builder that
causes the Costs to exceed the Budgeted Costs (“Builder Cost
Overruns”) and Builder shall not have any
responsibility for Constructing Party Cost Overruns unless such
Constructing Party Cost Overruns occur as a result of
Builder’s breach of its obligations under this
LDA.

 

(d) Accounting. Developer shall
keep good and accurate books and records in sufficient detail to
allow the Costs to be calculated, which books and records shall be
made available for review (upon reasonable prior written notice) by
the Parties. Within thirty (30) days after Substantial Completion
of the Improvements, the Developer shall deliver to Builder a
reasonably detailed final accounting of the Costs.

 

(e) Progress Reports. Developer
shall, no less frequently than once per month, provide Builder with
a progress report setting forth the amount of Costs expended to
date, a list of Improvements completed, to date, and an estimate by
a project manager of Developer of the status of overall completion
of the Improvements, in such form as Developer deems reasonably
appropriate (“Progress
Report”).



 

F-15







 





 

6. Payment of Costs.

 

(a) Payment.

 

(i) Payment. Pursuant to the terms
of the Contract, Builder shall pay to Developer, as Seller, part of
the Purchase Price in cash at each closing (the “Initial Purchase
Price”), and pay in accordance with the terms of this
LDA a deferred portion of the Purchase Price (“Deferred Purchase
Price”) equal to the Maximum Builder Costs (including
Builder Cost Overruns, if any) which represents Builder’s
share of the Budgeted Costs of the Improvements. After Builder pays
the Initial Purchase Price, Builder has no responsibility for
payment of any funds in excess of the Maximum Builder Costs. The
Deferred Purchase Price is payable to Developer in installments
based upon completion of the Improvements that serve each phase of
the Builder Lots as follows:

 

(1) Takedown 1 Lots – Phase
1. Phase 1 consists of approximately 41 Lots that are a part
of the Takedown 1 Lots as identified on the Concept Plan (the
“Phase 1
Lots”). Upon Substantial Completion of the Wet
Utilities that serve the Phase 1 Lots in accordance with Section
4.5 above, Builder shall pay the Developer a portion of the
Deferred Purchase Price for Phase 1 in the amount of $1,900,000.00
plus the Escalator. Upon Substantial Completion of the Improvements
that serve the Phase 1 Lots in accordance with Section 4.5 above,
Builder shall pay the Developer the balance of the Deferred
Purchase Price in the amount of $1,900,000.00 plus the
Escalator.

 

(2)  Takedown 1 Lots – Phase
2. Phase 2 consists of approximately 41 Lots that are a part
of the Takedown 1 Lots as identified on the Concept Plan (the
“Phase 2
Lots”). Upon Substantial Completion of the Wet
Utilities that serve the Phase 2 Lots in accordance with Section
4.5 above, Builder shall pay the Developer a portion of the
Deferred Purchase Price for Phase 2 in the amount of $1,900,000.00
plus the Escalator. Upon Substantial Completion of the Improvements
that serve the Phase 2 Lots in accordance with Section 4.5 above,
Builder shall pay the Developer the balance of the Deferred
Purchase Price in the amount of $1,900,000.00 plus the
Escalator.

 

(3) Takedown 2 Lots – Phase
3. Phase 3 consists of approximately 41 Lots that are a part
of the Takedown 2 Lots as identified on the Concept Plan (the
“Phase 3
Lots”). Upon Substantial Completion of the Wet
Utilities that serve the Phase 3 Lots in accordance with Section
4.5 above, Builder shall pay the Developer a portion of the
Deferred Purchase Price for Phase 3 in the amount of $1,900,000.00
plus the Escalator. Upon Substantial Completion of the Improvements
that serve the Phase 3 Lots in accordance with Section 4.5 above,
Builder shall pay the Developer the balance of the Deferred
Purchase Price in the amount of $1,900,000.00 plus the
Escalator.

 

(4)  Takedown 2 Lots – Phase
4. Phase 4 consists of approximately 42 Lots that are a part
of the Takedown 2 Lots as identified on the Concept Plan (the
“Phase 4
Lots”). Upon Substantial Completion of the Wet
Utilities that serve the Phase 4 Lots in accordance with Section
4.5 above, Builder shall pay the Developer a portion of the
Deferred Purchase Price for Phase 4 in the amount of $1,900,000.00
plus the Escalator. Upon Substantial Completion of the Improvements
that serve the Phase 4 Lots in accordance with Section 4.5 above,
Builder shall pay the Developer the balance of the Deferred
Purchase Price in the amount of $1,900,000.00 plus the
Escalator.



 

F-16







 





 

(5) Escalator. All payments of the
Deferred Purchase Price shall be subject to the Escalator as
provided in Section 2(b) of the Contract.

 

(6) Invoice. After Substantial
Completion is achieved as described above, Builder shall pay the
applicable portion of the Deferred Purchase within five (5)
business days after an invoice for payment is delivered to Builder
by Developer.

 

(7) Definition of Wet Utilities.
The Wet Utilities that serve each Phase of the Builder Lots that
will trigger the Builder’s payment obligation upon
Substantial Completion thereof are identified on Exhibit
G.

 

(8) Security for Payment of Deferred
Purchase Price - Letter of Credit. In order to secure
Builder’s obligation following the each Closing to pay the
Deferred Purchase Price in accordance with the terms of the
Contract and the payment obligations set forth above in this
Section 6.1, at each Closing, Builder shall deliver to Title
Company, acting as escrow agent, a letter of credit issued by
_____________________ in the form attached to the Contract as
Exhibit
H (the “Letter of
Credit”) and in an amount equal to the sum of the
Deferred Purchase Price for all of the Lots acquired by Builder at
such Closing plus the estimated Escalator thereon in an amount
equal to $_________.00 with respect to the Letter of Credit
delivered at the First Closing and $_________.00 with respect to
the Letter of Credit delivered at the Second Closing, and
$_________.00 with respect to the Letter of Credit delivered at the
Third Closing. Title Company shall hold and maintain the Letter of
Credit pursuant to this LDA and the Contract in an escrow account
established by Title Company for the benefit of Developer and
Builder(pursuant to the terms of an escrow agreement to be agreed
upon by Developer, Builder and Title Company during the Due
Diligence Period). The Letter of Credit for each Closing shall
remain in place until the final payment of the Deferred Purchase
Price applicable to such Closing has been made to the Developer
following Substantial Completion of the Finished Lot Improvements
which serve the Lots acquired by Builder at such Closing. If the
Letter of Credit is scheduled to expire prior to the Substantial
Completion of all of such Lots, and Builder has not renewed the
Letter of Credit at least fifteen (15) days prior to the expiration
date thereof, Title Company is authorized and directed to draw down
the full amount of the Letter of Credit and deposit such funds in
escrow to be used solely for the payment of any unpaid Deferred
Purchase Price. The Letter of Credit may provide that it may be
reduced from time to time to the extent of payments of the Deferred
Purchase Price in Good Funds made by Purchaser for Finished Lot
Improvements in accordance with the terms, including the payment
schedule, set forth in this LDA and the Contract. The Letter of
Credit for each Closing shall be returned to Builder, together with
an executed reduction certificate reducing the face amount thereof
to $0.00, upon payment in full of the Deferred Purchaser Price in
Good Funds for all of the Lots in such Closing. Failure by Builder
to pay any portion of the Deferred Purchase Price when the same
shall become due and payable, provided that at such failure
continues for a period of ten days after the delivery of written
notice thereof from Developer to Builder, shall entitle Developer
to enforce the collection of the delinquent Deferred Purchase Price
by drawing upon the Letter of Credit or having the Title Company
draw upon the Letter of Credit, and in either event the funds so
drawn shall be paid to Developer as payment of any unpaid Deferred
Purchase Price and such failure to pay shall be deemed cured. If
Developer or Title Company is unable to draw upon the Letter of
Credit, Developer may protect and enforce its rights under this LDA
pertaining to payment of the Deferred Purchase Price by (i) such
suit, action, or special proceedings as Developer shall deem
appropriate, including, without limitation, any proceedings for the
specific performance of any covenant or agreement contained in this
LDA or the Contract or the enforcement of any other appropriate
legal or equitable remedy, or for the recovery of actual damages
(excluding consequential, punitive damages or similar damages)
caused by Builder’s failure to pay the Deferred Purchase
Price, including reasonable attorneys' fees, and (ii) enforcing
Developer’s lien rights set forth in this LDA.
Developer’s remedies are non-exclusive.



 

F-17







 





 

7. Expedited Dispute
Resolution.

 

(a) Disputes Related to Material Changes,
Draw Requests and Punchlist Items. Notwithstanding anything
to the contrary herein, disputes related to Material Changes, any
Builder Punchlist item or matter, objections to Construction
Contracts, determination of Substantial Completion or the amount of
or responsibility for Constructing Party Cost Overruns or Builder
Cost Overruns (“Expedited
Disputes”) shall all be resolved by an independent,
impartial third party qualified to resolve such disputes as
determined by the Parties involved in the Expedited Dispute
(“Informal
Arbitrator”). If such Parties cannot agree on an
Informal Arbitrator, then the Parties involved shall select one (1)
registered engineer and the Builder shall select one (1) registered
engineer and the engineers so selected by such Parties shall
promptly select an independent, impartial third party qualified to
act as the Informal Arbitrator and resolve the Expedited Dispute.
Within five (5) business days after a Party delivers a Dispute
Notice, the Developer and the Builder shall deliver to the Informal
Arbitrator a written statement of how such Party believes the
Expedited Dispute should be resolved, together with reasonable
supporting documentation of such position (“Resolution
Notice”). Within ten (10) business days after receipt
of Resolution Notices from both such Parties, the Informal
Arbitrator shall approve one (1) of the Parties’ Resolution
Notice and shall deliver written notice of such approval to each
Party. The decision of the Informal Arbitrator shall be binding on
all Parties with respect to the applicable Expedited Dispute. All
Parties shall timely cooperate with the Informal Arbitrator in
rendering his or her decision. The party that is not the prevailing
party in the resolution of any Expedited Dispute shall promptly pay
the Informal Arbitrator’s fee, and the prevailing
party’s other fees and costs of any such expedited dispute
resolution process and reasonable attorney’s fees. The term
“prevailing party” means the party who successfully
obtains substantially all of the relief sought by such party or is
successful in denying substantially all of the relief sought by the
other party. The Parties acknowledge that there is a benefit to the
Parties in having work done as expeditiously as possible and that
there is a need for a streamlined method of making decisions
described in this Section so that work is not delayed. A Party and
shall not be entitled to recover from any other Party exemplary,
punitive, special, indirect, consequential or any other damages
other than actual damages (unless the Informal Arbitrator finds
intentional abuse or frustration of the arbitration process) in
connection with an Expedited Dispute.

 

(b) Standards of Conduct. The
Parties agree that with respect to all aspects of the expedited
dispute resolution process contained herein they will conduct
themselves in a manner intended to assure the integrity and
fairness of that process. To that end, if an Expedited Dispute is
submitted to expedited dispute resolution process, the Parties
agree that they will not contact or communicate with the Informal
Arbitrator who was appointed with respect to any Expedited Dispute
either ex parte or outside
of the contacts and communications contemplated by this
Article
7, and the Parties
further agree that they will cooperate in good faith in the
production of evidence in a prompt and efficient manner to permit
the review and evaluation thereof by the other
Parties.



 

F-18







 





 

8. Progress Meetings. From and
after the date of this LDA and until Substantial Completion of the
Improvements, the Parties shall cause their designated
representatives to meet within five (5) business days following a
request from a Party regarding the status of construction of the
Improvements, scheduling and coordination issues, engineering and
design issues, and other similar issues. Any Party may change its
designated representative under this LDA at any time by written
notice to the other parties. The initial designated representative
for each Party for the purpose of this Section shall be the
individual listed on each Party’s respective signature page
attached hereto. All inquiries, requests, instructions,
authorizations, and other communications with respect to the
matters covered by this LDA shall be made to such representatives.
Any Party may without further or independent inquiry, assume and
rely at all times that the representatives of the other parties
designated hereunder have the power and authority to make decisions
on behalf of such other parties, to communicate such decisions to
the other Party and to bind such Party by his acts and deeds,
unless otherwise notified in writing by the Party designating the
representative. Any Party may change its representative under this
LDA at any time by written notice to the other
Parties.

 

9. Builder’s Stormwater Permit
Responsibilities. During any Overex construction activities
performed on the Builder Lots by Builder and following Substantial
Completion of the Improvements and prior to Builder engaging in any
construction activities upon the Builder Lots, Builder shall obtain
from the Colorado Department of Public Health, Water Quality
Control Division, a Colorado Construction Stormwater Discharge
Permit issued to Builder with respect to the Builder Lots. No fewer
than five (5) business days prior to the initiation of Overex or
construction activities on any Builder Lot, Builder shall deliver a
copy of at least one (1) of the following documents to
Developer:

 

(i) Such valid Colorado
Construction Stormwater Discharge Permit for the Builder
Lots;

 

(ii) A signed notice of
reassignment of permit coverage (State of Colorado
Form COR030000 or current equivalent), that transfers any
pre-existing permit coverage for the Builder Lots; or

 

(iii) A signed State of
Colorado modification form to add the Builder Lots if Builder has
an existing site permit with the State of Colorado within the
Property.

 


To the
extent required by the County, Builder shall also obtain a
Stormwater Quality Permit issued to Builder by the County for the
Builder Lots. Builder shall be responsible to obtain and maintain
any State of Colorado dewatering permits if required for
Builder’s further construction within the Builder Lots. If
requested by Developer, Builder shall execute a Notice of Property
Conveyance and Change in Responsibility for the Colorado Discharge
Permit held by Developer or an affiliated entity with respect to
the Property. In all cases, Builder shall obtain from the Colorado
Department of Public Health & Environment Water Quality Control
Division, a Notice of Property Conveyance and Change in
Responsibility on a form acceptable to the Colorado Department of
Public Health & Environment Water Quality Control Division
executed by Builder, for the Colorado Stormwater Discharge Permit
held by Developer with respect to the Builder Lots prior to any
construction by Builder on the Builder Lots.



 

F-19







 






 

(b)  Developer’s Stormwater
Permit responsibilities. Developer shall obtain and comply
with all necessary permits related to stormwater and erosion
control from all Approving Authorities, in relation to the
construction, repair, and maintenance of the
Improvements.

 

10. Notices and Communications. All
notices, statements, demands, requirements, approvals or other
communications and documents (“Communications”)
required or permitted to be given, served, or delivered by or to
any Party or any intended recipient under this LDA shall be in
writing and shall be given to the addresses set forth in this
Section
10
(“Notice
Address”). Communications to a Party shall be deemed
to have been duly given (i) on the date and at the time of
delivery if delivered personally to the Party to whom notice is
given at such Party’s Notice Address; or (ii) on the date and
at the time of delivery or refusal of acceptance of delivery if
delivered or attempted to be delivered by an overnight courier
service to the Party to whom notice is given at such Party’s
Notice Address; or (iii) on the date of delivery or attempted
delivery shown on the return receipt if mailed to the Party to whom
notice is to be given by first-class mail, sent by registered or
certified mail, return receipt requested, postage prepaid and
properly addressed to such Party at such Party’s Notice
Address; or (iv) on the date and at the time shown on the
facsimile or electronic mail message if telecopied or sent
electronically to the number or address designated in such
Party’s Notice Address and receipt of such telecopy or
electronic mail message is electronically confirmed. The Notice
Addresses for the Developer is as follows:

 


To
Developer:


 PCY Holdings,
LLC


 Attention:
Mark Harding


 34501 E.
Quincy Ave.


 Bldg. 34,
Box 10


 Watkins,
Colorado 80137


 Telephone:
(303) 292-3456


 Facsimile:
(303) 292-3475


 E-mail:
mharding@purecyclewater.com


 


with a
copy to:


 Fox
Rothschild LLP


 1225
17th
Street, Suite 2200


 Denver, CO
80202


 Attention:
Rick Rubin, Esq.


 Telephone:
(303) 292-1200


 Email:
rrubin@foxrothschild.com


 



 

F-20







 






 


To
Builder:


 Taylor
Morrison of Colorado, Inc.


 1420 West
Canal Court, Suite 170


 Littleton,
Colorado 80120


 Attention:
Tom Hennessy, Division President


 Telephone:
(303) 325-2426


 E-mail:
thennessy@taylormorrison.com


 


with a
copy
to:                                


Brier,
Irish, Hubbard & Erhart P.L.C.


 2400 East
Arizona Biltmore Circle, Suite 1300


 Phoenix, AZ
85016


 Attn: Jeff
Hubbard


 Telephone:
(602) 522-0160


 Facsimile:
(602) 522-3945


 E-mail:
jhubbard@bihlaw.com


 


 

11. Attorneys’ Fees. Except
as provided in Section 7(a), should any action be
brought in connection with this LDA, including, without limitation,
actions based on contract, tort or statute, the prevailing Party in
such action shall be awarded all costs and expenses incurred in
connection with such action, including reasonable attorneys’
fees. The provisions of this Section shall survive the expiration
or termination of this LDA.

 

12. Further Acts. Each of the
Parties hereto shall execute and deliver all such documents and
perform all such acts as reasonably necessary, from time to time,
to carry out the matters contemplated by this LDA.

 

13. No Partnership; Third Parties.
It is not intended by this LDA to, and nothing contained in this
LDA shall, create any partnership, joint venture or other
arrangement among the Parties hereto. No term or provision of this
LDA is intended to, or shall, be for the benefit of any person,
firm, organization or corporation not a Party hereto, and no such
other person, firm, organization or corporation shall have any
right or cause of action hereunder.

 

14. Entire Agreement; Headings for
Convenience Only; Not to be Construed Against Drafter; No Implied
Waiver. This LDA and all other written agreements among the
Parties constitute the entire agreement among the Parties hereto
pertaining to the subject matter hereof. No change or addition is
to be made to this LDA except by written amendment executed by the
Parties. The headings, captions and titles contained in this LDA
are intended for convenience of reference only and are of no
meaning in the interpretation or effect of this LDA. This LDA shall
not be construed more strictly against one (1) Party than another
merely by virtue of the fact that it may have been initially
drafted by one (1) of the Parties or its counsel, since all Parties
have contributed substantially and materially to the preparation
hereof. No failure by a Party to insist upon the strict performance
of any term, covenant or provision contained in this LDA, no
failure by a Party to exercise any right or remedy under this LDA,
and no acceptance of full or partial payment owed to a Party during
the continuance of any default by the other Party(ies), shall
constitute a waiver of any such term, covenant or provision, or a
waiver of any such right or remedy, or a waiver of any such default
unless such waiver is made in writing by the Party to be bound
thereby. Any waiver of a breach of a term or a condition of this
LDA shall not prevent a subsequent act, which would have originally
constituted a default under this LDA, from having all the force and
effect of a default.



 

F-21







 





 

15. Governing Law. This LDA is
entered into in Colorado and shall be construed and interpreted
under the law of the State of Colorado without giving effect to
principles of conflicts of law which would result in the
application of any law other than the law of the State of
Colorado.

 

16. Severability. If any provision
of this LDA is declared void or unenforceable, such provision shall
be severed from this LDA and shall not affect the enforceability of
the remaining provisions of this LDA.

 

17. Assignment; Binding Effect.
This LDA shall be binding upon and inure to the benefit of the
Parties hereto and their respective successors and permitted
assigns. Neither Builder or Developer may assign any of its rights
or obligations under this LDA without the prior written consent of
the other Party(ies), which consent may be withheld in each
Party’s sole and absolute discretion; provided, however,
that:

 

(a) Builder may assign,
without consent, its rights under this LDA in full, but not in
part: (i) to a third party which acquires all of Builder’s
Builder Lots, or (ii) to an entity that controls, is controlled by,
or under common control with, Builder; provided further, however
that Developer approves the form of assignment, which approval
shall be in Developer’s reasonable discretion;
and

 

(b) Developer may
assign, without consent, its rights under this LDA: (i) to an
entity that controls, is controlled by, or under common control
with, Developer; (ii) to any entity that acquires all or
substantially all of the Developer’s interests in the Builder
Lots.

 

18. Counterparts; Copies of
Signatures. This LDA may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one (1) and the same instrument.
The signature pages from one (1) or more counterparts may be
removed from such counterparts and such signature pages all
attached to a single instrument so that the signatures of all
Parties may be physically attached to a single document. This LDA
may be executed and delivered by facsimile or by electronic mail in
portable document format (.pdf) or similar means and delivery of
the signature page by such method will be deemed to have the same
effect as if the original signature had been delivered to the other
party. Upon execution of this LDA by Developer and Builder,
Developer shall provide a fully executed copy of this LDA to
Builder for its records.

 

19. Time of the Essence. Time is of
the essence for performance or satisfaction of all requirements,
conditions, or other provisions of this LDA, subject to any
specific time extensions set forth herein.



 

F-22







 





 

20. Computation of Time Periods.
All time periods referred to in this LDA shall include all
Saturdays, Sundays and holidays, unless the period of time
specifies business days. If the date to perform any act or give a
notice with respect to this LDA shall fall on a Saturday, Sunday or
national or state holiday, the act or notice may be timely
performed on the next succeeding day which is not a Saturday,
Sunday or a national or state holiday.

 

21. Remedies.

 

(a) Except as
hereinafter provided with regard to Expedited Disputes and the
self-help remedy under Section 4.6, if any Party is in default of
any of its obligations under this LDA beyond any applicable notice
or cure periods, the other Party(ies) may avail itself to any
rights and remedies available at law and equity, but may only
recover its actual, out-of-pocket damages (excluding any
incidental, consequential, speculative, punitive or lost profits
damages) incurred as a result of such default. For Expedited
Disputes, the sole and exclusive remedy of the Parties is set forth
in Section 7 of this LDA, and for Developer Defaults, the sole and
exclusive remedy of the Parties is set forth in Section 4.6 of this
LDA.

 

(b) In addition to the
remedies permitted under Section 21.1, any claim by
Developer against Builder for breach of Builder’s obligation
hereunder to pay of any portion of the Deferred Purchase Price,
together with simple interest at the rate of 12% per annum from the
date such payment is due and payable, and all costs and expenses
including reasonable attorneys' fees awarded to Developer in
enforcing any payment in any suit or proceeding under this LDA,
shall constitute a lien ("Lien")
against the applicable Phase of Builder Lots to which the payment
pertains until paid, effective upon the recording of a notice of
lien with respect thereto in the Office of the Clerk and Recorder
of the County; provided, however, that any such Lien shall be
subject and subordinate to (i) liens for taxes and other public
charges which by applicable law are expressly made superior, and
(ii) all liens recorded in the Office of the Clerk and Recorder of
the County prior to the date of recordation of said notice of lien.
All liens recorded subsequent to the recordation of the notice of
lien described herein shall be junior and subordinate to the Lien.
The notice of lien will be signed and acknowledged by Developer and
will contain the following: (a) a statement of all amounts due and
payable; (b) a description sufficient for identification of the
applicable Phase of Builder Lots to which the notice relates; (c)
the name of the Builder as owner of such Builder Lots; and (d) the
name and address of the Developer causing the notice to be
recorded. Developer has the right to enforce the Lien by
foreclosing the Lien against the applicable Phase of Builder Lots
under the prevailing Colorado law relating to the foreclosure of
realty mortgages. Upon the timely curing by the defaulting Builder
of any default for which a notice of lien was recorded, the
Developer shall record an appropriate release of such notice of
lien and Lien. The sale or transfer of a Builder Lot by Builder
does not affect the Lien.

 

22. Jury Waiver. TO THE EXTENT
PERMITTED BY LAW, THE PARTIES HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVE,
RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO THE PROVISIONS OF THIS LDA.

 


[SIGNATURE PAGE
FOLLOWS]

 


 




(Sky
Ranch Lot Development Agreement)

F-23








 






IN
WITNESS WHEREOF, the Parties have executed this LDA as of the
Effective Date first set forth above.


 


DEVELOPER:

 


PCY
HOLDINGS, LLC

 


a
Colorado limited liability company

 


 

 


 

 



By:            

___________________________________





 



Name:      



___________________________________





 



Title:       



___________________________________





 


 

 


 

 


 

 


 

 


Designated
Representative: ____________________


 

 


 

 


 


 


 



 


(Sky
Ranch Lot Development Agreement)

F-24








 






 

 


BUILDER:

 


 

 


TAYLOR
MORRISON, INC.,

 


a
Colorado Corporation

 


 

 



By:            

___________________________________





 



Name:          



___________________________________





 



Title:   



___________________________________





 


 

 


 

 



Builder’s Builder
Lots:           



______________________________________________________





 


______________________________________________________

 


______________________________________________________

 


 

 







Designated
Representative: ____________________

 


 



 


(Sky
Ranch Lot Development Agreement)

F-25








 







List of Exhibits


 


	

Exhibit
A:

	

Concept
Plan, Takedowns, Phases - Description of Property


	

Exhibit
B:

	

List of
Plans


	

Exhibit
C:

	

Required
Insurance


	

Exhibit
D:

	

Finished
Lot Standard


	

Exhibit
E:

	

Construction
Schedule


	

Exhibit
F:

	

Initial
Budget


	

Exhibit
G:

	

Wet
Utilities – Phased


	

Exhibit
H:

	

Letter
of Credit


	

Exhibit
I:

	

Joint
Improvements Memorandum


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 







 



 


(Sky
Ranch Lot Development Agreement)

F-26








 






Exhibit
A


to


Lot
Development Agreement


 


(Description
of Property for Each Applicable Phase)


 




 




 








 






Exhibit
B


to


Lot
Development Agreement


 


(List
of Plans for Each Applicable Phase)


 



Improvements to be Constructed by



Developer


 


[List
specific work to be performed]


 




 




 








 






Exhibit
C


to


Lot
Development Agreement


 


(Required
Insurance)


 


Developer
or the Substitute Constructing Party (as applicable) shall maintain
the amounts and types of insurance described below and shall cause
the Service Providers to maintain such coverages from insurance
companies licensed to do business in the State of Colorado having a
Best’s Insurance Report Rating of A/VI or better covering the
risks described below:


 



A.            

Commercial General
Liability Insurance (including premises, operations, products,
completed operations, and contractual liability coverages) in an
amount not less than One Million Dollars ($1,000,000.00) per
occurrence, One Million Dollars ($1,000,000.00) personal injury and
advertising injury, and Two Million Dollars ($2,000,000.00) General
Aggregate.






 



B.            

Automobile
Liability Insurance for all motor vehicles operated by or for
Developer or Substitute Constructing Party, including owned, hired,
and non-owned autos, with minimum Combined Single Limit for Bodily
Injury and Property Damage of One Million Dollars ($1,000,000.00)
for each occurrence.






 



C.            

Workers
Compensation Insurance for all employees of Developer or Substitute
Constructing Party as required by law, to cover the applicable
statutory limits in the State of Colorado and employer’s
liability insurance with limits of liability of not less than One
Million Dollars ($1,000,000.00) for bodily injury by accident (each
accident) and One Million Dollars ($1,000,000.00) for bodily injury
by disease (each employee).






 



D.            

With respect to
Service Providers that provide professional services (e.g.,
engineers), professional liability insurance, including prior acts
coverage sufficient to cover any and all claims arising out of the
services, or a retroactive date no later than the date of
commencement of the services, with limits of not less than One
Million Dollars ($1,000,000.00) per claim and Two Million Dollars
($2,000,000.00) annual aggregate. The professional liability
insurance shall be maintained continuously during the term of the
LDA and so long as the insurance is commercially reasonably
available, for a period not less than the Government Warranty
Period. The professional liability insurance required by this
paragraph shall not contain any exclusions or limitations
applicable to residential projects.






 


The
following general requirements shall apply to all insurance
policies described in this Exhibit.


 



1.            

All liability
insurance policies, except workers compensation insurance, shall be
written on an occurrence basis.






 



2.            

All insurance
policies required hereunder except Workers Compensation and
Employers Liability shall: (i) name the Parties as
“additional insureds” utilizing an ACORD form or
equivalent acceptable to Developer or Substitute Constructing Party
(as applicable), excluding, however, insurance policies of Service
Providers who provide professional services whose insurance
policies do not permit the designation of additional insureds;
(ii) be issued by an insurer authorized in the State of
Colorado; and (iii) provide that such policies shall not be
canceled or not renewed, nor shall any material change be made to
the policy without at least thirty (30) days’ prior
written notice to the Parties. Each additional insured endorsement
(or each policy, by reasonably acceptable endorsement) shall
contain a primary insurance clause providing that the coverage
afforded to the additional insureds is primary and that any other
insurance or self-insurance available to any of the additional
insureds is non-contributing. A waiver of subrogation endorsement
for the workers’ compensation coverage shall be provided in
favor of the Parties.






 



 







 






 



3.            

The liability
insurance policies shall provide that such insurance shall be
primary on a non-contributory basis.






 



4.            

Service Providers
shall provide Developer or Substitute Constructing Party (as
applicable) with certificates, or copies of insurance policies if
request by the Developer, evidencing the insurance coverages
required by this Exhibit in the certificate form described in
Item 2 of this
Exhibit, prior to the commencement of any activity or operation
which could give rise to a loss to be covered by such insurance.
Replacement certificates shall be sent to Developer or Substitute
Constructing Party (as applicable), as policies are renewed,
replaced, or modified.






 



5.            

The foregoing
insurance coverage must be maintained in force at all times during
the construction of the Improvements.






 


 


 


 


 


 


 


 


 


 


 




 

2








 






Exhibit
D


to


Lot
Development Agreement


 


(Finished
Lot Standard)


 


“Finished
Lot Standard” means the following improvements on, to
or with respect to the Builder Lots or in public streets or tracts
in the locations as required by all Approving Authorities, and
substantially in accordance with the Plans:


 

(i) overlot grading
together with corner pins for each Builder Lot installed in place,
graded to match the specified Builder Lot drainage template within
the Plans (but not any Overex);


 

(j) water and sanitary
sewer mains and other required installations in connection
therewith identified in the Plans, valve boxes and meter pits,
substantially in accordance with the Plans approved by the
Approving Authorities, together with appropriate
markers;


 

(k) storm sewer mains,
inlets and other associated storm drainage improvements pertaining
to the Builder Lots in the public streets as shown on the
Plans;


 

(l) curb, gutter,
asphalt, sidewalks, street striping, street signage, traffic signs,
traffic signals (if any are required by the Approving Authorities),
and other street improvements, in the private and/or public streets
as shown on the Plans;


 

(m) sanitary sewer
service stubs if required by the Approving Authorities, connected
to the foregoing sanitary sewer mains, installed into each
respective Builder Lot (to a point beyond any utility easements),
together with appropriate markers of the ends of such stubs, as
shown on the Plans;


 

(n) water service
stubs connected to the foregoing water mains installed into each
Builder Lot (to a point beyond any utility easements), together
with appropriate markers of the ends of such stubs, as shown on the
Plans;


 

(o) Lot fill in
compliance with the geotechnical engineer’s recommendation,
and with respect to any filled area or compacted area, provide from
a Colorado licensed professional soils engineer a HUD Data Sheet
79G Certification (or equivalent) and a certification that the
compaction and moisture content recommendations of the soils
engineer were followed and that the grading of the respective Lots
complies with the approved grading plans, with overlot grading
completed in conformance with the approving Authorities approved
grading plans within a +/- 0.2’ tolerance of the approved
grading plans; however, the Finished Lot Standard does not include
any Overex;


 

(p) all storm water
management facilities as shown in the Plans; and



 







 






 

(q) Electricity,
natural gas, and telephone service will be installed by local
utility companies. The installations may not be completed at the
time of a Closing, and are not part of the Finish Lot Standard;
provided, however, that: (i) with respect to electric distribution
lines and street lights, Developer will have signed an agreement
with the electric utility service provider and paid all costs and
fees for the installation of electric distribution lines and
facilities to serve the Builder Lots, and all sleeves necessary for
electric, gas, telephone and/or cable television service to the
Builder Lots will be installed; (ii) with respect to gas
distribution lines, Developer will have signed an agreement with
the gas utility service provider and paid all costs and fees for
the installation of gas distribution lines and facilities to serve
the Builder Lots. Developer will take commercially reasonable
efforts to assist Builder in coordinating with these utility
companies to provide final electric, gas, telephone and cable
television service to the residences on the Builder Lots, however,
Builder must activate such services through an end user contract.
Builder acknowledges that in some cases the telephone and cable
companies may not have pulled the main line through the conduit if
no closings of residences have occurred. Notwithstanding the
foregoing, if dry utilities have not been installed upon
substantial completion of the Improvements required by the Finished
Lot Standard, Developer shall be obligated to have contracted for
same and paid all costs and fees payable for such installation.
Unless Developer has contracted for such installation and paid such
costs before the Effective Date, Developer will give Builder notice
when such contracts have been entered and such costs
paid.


 


The
Finished Lot Improvements do not include (a) the Offsite
Infrastructure, which is addressed separately in Section 5 of the
Agreement, but it does include such other offsite improvements as
are necessary to obtain certificates of occupancy for homes
constructed on the Lots, provided that as aforesaid Seller shall
only be obligated to complete such improvements within a timeframe
so as not to delay issuance of such certificates of occupancy, or
(b) common area landscaping which will be installed when required
by the County or other applicable Authority so as not to delay the
issuance of building permits or certificates of occupancy for
residences constructed by Purchaser on the Lots.


 


The
Finished Lot Standard does not include Tree Lawns, which is
addressed separately in Section 4.11 of this LDA.


 


 


 


 


 


 


 




 

2








 






Exhibit
E


to


Lot
Development Agreement


 


Construction
Schedule


 


 


[To be
determined]


 


 


 


 


 


 


 


 


 



 


 


(Sky
Ranch Lot Development Agreement)








 






Exhibit
F


to


Lot
Development Agreement


 


Budget


 


 


[To be
determined]


 


 


 


 


 


 


 


 


 


 



 


 


(Sky
Ranch Lot Development Agreement)








 






Exhibit
G


to


Lot
Development Agreement


 


Wet
Utilities


 





 


 


(Sky
Ranch Lot Development Agreement)








 






Exhibit
H


to


Lot
Development Agreement


 


Letter
of Credit


 





 

1







 






 




 



 

2







 






 


 






 

3








 








 



 


 


(Sky
Ranch Lot Development Agreement)





4








 






Exhibit
I


to


Lot
Development Agreement

 


Joint
Improvements Memorandum

 


 


[To be
determined]


 


 


 


 


 




1









 







EXHIBIT G


 



FORM OF LETTER OF CREDIT


 

 



[INSERT BANK NAME]



[INSERT LETTER OF CREDIT DOCUMENT NAME]

 


 

 



                               

_,
20  






 

 


 

 



Letter of Credit
No.
                                        







 

 



[Insert name/address of Escrow Agent]

 


 


 

 


Gentlemen/Ladies:

 


 




1.

At the request and for the account of our
customer, [Insert Owner name]
("Owner"), [Insert Bank name]
("Bank"), hereby establishes in your favor this
[Insert Letter of
Credit Document Name] ("Letter of
Credit"). This Letter of
Credit is issued to you pursuant to the terms of that certain Joint
Development Agreement, wherein Owner is an "Owner," [Insert Contract
Administrator name] is the
"Contract
Administrator," and you are
the "Escrow
Agent" (the
"Joint
Development Agreement"). This
Letter of Credit authorizes you to draw on us in amounts which in
the aggregate shall not exceed the "Stated
Amount" of _____________
and No/100 Dollars ($_).





 




2.

You or your duly
authorized successor or transferee (including any replacement
escrow agent and any court holding this Letter of Credit pursuant
to an action) may obtain the funds available under this Letter of
Credit by presentment to us, of your sight draft or drafts drawn on
us in the form set forth as Attachment
#1 hereto, accompanied by your executed statement certifying
that the amount set forth in the draft is immediately due and
payable pursuant to the Joint Development Agreement and accompanied
by the original of this Letter of Credit and Amendment(s) thereto,
if any.





 




3.

This letter of
credit may be reduced upon our receipt of a reduction certificate
signed by you and by Owner, in the form of Attachment
#2 hereto.





 




4.

We hereby engage
with the beneficiary of this Letter of Credit hereof that draft(s)
drawn and required documents presented in compliance with the terms
contained in this Letter of Credit will be duly honored upon
presentation and delivery toon or before the expiration date
hereof.






 




5.

Your sight draft
will be honored by payment to you of the draft amount in
immediately available funds within seven (7) days following
presentation. Each draft presented for payment under this Letter of
Credit must be dated as of the date of its presentation to us and
must be marked conspicuously, "Drawn under [Insert Bank name] [Insert Letter of Credit
Document Name] No. , accompanied by your certification(s) to
us stating the following:







 

G-1







 






 


"I am a duly authorized representative of the
beneficiary of [Insert Bank name] [Insert
Letter of Credit Document Name] No. and
hereby certify that the amount drawn hereunder represents
funds due under the terms of the Joint Development
Agreement.


 




6.

You may draw the
full amount of this Letter of Credit or only part of it, in your
discretion, provided that drafts honored by us under this Letter of
Credit shall not exceed the Stated Amount available to you under
this Letter of Credit.






 




7.

This Letter of
Credit shall expire not earlier than one (1) year after the date
set forth above (“Initial
Expiration Date”). If Owner does not deliver to you a
renewal Letter of Credit at least thirty (30) days prior to the
expiration of this Letter of Credit, then, in addition to other
rights available to you under the Joint Development Agreement, you
shall have the right to draw on this Letter of Credit.
[IF EVERGREEN LOC: This
Letter of Credit is deemed to be automatically extended without
amendment for 12 months from the Initial Expiration Date stated
above or any future expiration date hereof, as the case may be
(each, a “Scheduled
Expiration Date”), unless at least sixty (60) days
prior to the Initial Expiration Date or the then-current Scheduled
Expiration Date, the Bank notifies the beneficiary by registered
mail or courier service that this Letter of Credit will not be
renewed for any such additional period. Any notice of non-renewal
hereunder shall be sent to the beneficiary at the address shown
above or at such other address as the beneficiary may provide to
the Bank in writing, provided that the Bank receives such change of
address not later than ten (10) business days before the deadline
for the non-renewal notice.






 




8.

We consider this
Letter of Credit to be irrevocable and unconditional (except as
expressly stated herein) under the terms above
mentioned.






 




9.

Unless otherwise
expressly stated herein, this irrevocable Standby Letter of Credit
is subject to the International Standby Practices 1998,
International Chamber of Commerce Publication No. 590.





 


 


Very
truly yours,

 


 



[Insert Bank name]


 

 


 

By:
                                                 

Name:

Its:

 



G-2








 







	


ATTACHMENT #1



to



Letter of Credit









 


 

 


 


	

Drawn
Under [Insert Bank
name]

	
 


	


[Insert Letter of Credit Document Name]

	
 


	

No.
                                          

 


 


$                                                       U.S.

	

 

 




 

,
200              






 


 



To:            


[Insert Bank name]






 


Drawn
under [Insert Bank name] [Insert
Letter of Credit Document Name] No.  

 


 

 


I am a
duly authorized representative of the beneficiary of [Insert Bank name] [Insert Letter of Credit
Document Name] No. and hereby certify that the amount
drawn hereunder represents funds due under the terms of the Joint
Development Agreement.


 



Accordingly, please
pay to the order of the
undersigned,                                                                                                                                         

Dollars
($_________).





 


 



[Insert Escrow Agent name]


 

 


 


By:
  Name:    Its:  

 



G-3








 







	


ATTACHMENT #2



to



Letter of Credit









 

 


 

 



Date:                                    

,
20       






 

 


 

 



[Insert name/address of
Bank]                                   



and                  


[Insert name/address of Owner]





 


 







 

 


Ref:
Letter of Credit No. _________________

 


 

 


As
parties to the above referenced Letter of Credit, we request that
the following action(s) be taken as evidenced by our signatures
below:

 

 


 



Reduce the amount
from U.S. $                                                                 



to
U.S.





 

 



$                                         

.





 

 


 


Authorization:

 

 


 


 



[Insert Escrow Agent name]


 

 


 



By:                                                         

Name:
Title:





 


 

 



[Insert Owner name]


 

 


 


By: 
Name:  Title: 

 



 


 


 



DATE OF ISSUE:



                            

, 20__





 


 

 


 



APPLICANT:


____________,

 


  ______________

 


 



	

BENEFICIARY:


____________________


____________________


____________________








 



DATE OF EXPIRY:



                          

,
20       


AT





 



        

:00 PM EASTERN
TIME





 

 


 



AMOUNT:



USD
$                                      

_.00
(            







 



                           

AND 00/100 U.S.
DOLLARS)





 





G-4








 







FIRST AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL
ESTATE



(Sky Ranch)


 


This
First Amendment to Contract for the Purchase and Sale of Real
Estate (‘First Amendment”) is entered into effective as
of August 24, 2017, by and between Taylor Morrison of Colorado,
Inc. a Colorado corporation (“Purchaser”), and PCY
Holdings LLC, a Colorado limited liability company
(”Seller”), and amends that certain Contract for
Purchase and Sale of Real Estate between Purchaser and Seller dated
effective June 27, 2017 (the “Agreement”), as
follows:


 




1.

Due Diligence
Period. The Due Diligence Period is hereby extended and shall
expire on September 20, 2017.






 




2.

Miscellaneous.
Except as stated herein, the Agreement shall remain in full force
and effect and is hereby ratified and approved. This First
Amendment may be signed in counterpart. Fax copies and
electronically scanned copies of the executed signature pages of
this First Amendment shall be effective and binding upon the
parties as if such signatures were original signatures. Any
capitalized term used herein without definition shall have the
meaning state in the Agreement.






 


 


[Balance of Page
Intentionally left Blank; Signature Page Follows]


 




 

1








 






 


In
witness whereof, Purchaser and Seller have executed this First
Amendment.


 


 


 


Seller:


PCY
Holdings LLC, a Colorado limited liability company


 


 


 



By:                  

/s/ Mark
Harding                  








 


Its:
President


 


 


 


Purchaser:


Taylor
Morrison of Colorado, Inc., a Colorado corporation


 


 


 



By:                  

/s/ Phillip R.
Cross                           








 


Its:
Vice President


 




 

2








 







SECOND AMENDMENT



TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE



(Sky Ranch)


 


This
Second Amendment to Contract for the Purchase and Sale of Real
Estate (‘Second Amendment”) is entered into effective
as of September 19, 2017, by and between Taylor Morrison of
Colorado, Inc. a Colorado corporation (“Purchaser”),
and PCY Holdings LLC, a Colorado limited liability company
)”Seller”), and amends that certain Contract for
Purchase and Sale of Real Estate between Purchaser and Seller dated
effective June 27, 2017 (the “Agreement”), as
follows:


 




1.

Due Diligence
Period. The Due Diligence Period is hereby extended and shall
expire on October 6, 2017.






 




2.

Miscellaneous.
Except as stated herein, the Agreement shall remain in full force
and effect and is hereby ratified and approved. This Second
Amendment may be signed in counterpart. Fax copies and
electronically scanned copies of the executed signature pages of
this Second Amendment shall be effective and binding upon the
parties as if such signatures were original signatures. Any
capitalized term used herein without definition shall have the
meaning state in the Agreement.






 


 


[Balance of Page
Intentionally left Blank; Signature Page Follows]


 




 

1








 






 


In
witness whereof, Purchaser and Seller have executed this Second
Amendment.


 


 


 


Seller:


PCY
Holdings LLC, a Colorado limited liability company


 


 


 



By:                  

/s/ Mark
Harding              








 


Its:
President


 


 


 


Purchaser:


Taylor
Morrison of Colorado, Inc., a Colorado corporation


 


 


 



By: /s/ Phillip R.
Cross                           








 


Its:
Vice President




 

2








 







THIRD AMENDMENT



TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE



(Sky Ranch)


 


This
Third Amendment to Contract for the Purchase and Sale of Real
Estate (‘Third Amendment”) is entered into effective as
of October 6, 2017, by and between Taylor Morrison of Colorado,
Inc. a Colorado corporation (“Purchaser”), and PCY
Holdings LLC, a Colorado limited liability company
)”Seller”), and amends that certain Contract for
Purchase and Sale of Real Estate between Purchaser and Seller dated
effective June 27, 2017 (the “Agreement”), as
follows:


 




1.

Due Diligence
Period. The Due Diligence Period is hereby extended and shall
expire on October 13, 2017.






 




2.

Miscellaneous.
Except as stated herein, the Agreement shall remain in full force
and effect and is hereby ratified and approved. This Third
Amendment may be signed in counterpart. Fax copies and
electronically scanned copies of the executed signature pages of
this Third Amendment shall be effective and binding upon the
parties as if such signatures were original signatures. Any
capitalized term used herein without definition shall have the
meaning state in the Agreement.






 


 


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1








 






 


In
witness whereof, Purchaser and Seller have executed this Third
Amendment.


 


 


 


Seller:


PCY
Holdings LLC, a Colorado limited liability company


 


 


 



By: /s/ Mark
Harding                  








 


Its:
President


 


 


 


Purchaser:


Taylor
Morrison of Colorado, Inc., a Colorado corporation


 


 


 



By: /s/ Phillip R.
Cross                                  








 


Its:
Vice President


 




 

2








 







FOURTH AMENDMENT



TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE



(Sky Ranch)


 


This
Fourth Amendment to Contract for the Purchase and Sale of Real
Estate (‘Fourth Amendment”) is entered into effective
as of October 13, 2017, by and between Taylor Morrison of Colorado,
Inc. a Colorado corporation (“Purchaser”), and PCY
Holdings LLC, a Colorado limited liability company
)”Seller”), and amends that certain Contract for
Purchase and Sale of Real Estate between Purchaser and Seller dated
effective June 27, 2017 (the “Agreement”), as
follows:


 




1.

Due Diligence
Period. The Due Diligence Period is hereby extended and shall
expire on October 18, 2017.






 




2.

Miscellaneous.
Except as stated herein, the Agreement shall remain in full force
and effect and is hereby ratified and approved. This Fourth
Amendment may be signed in counterpart. Fax copies and
electronically scanned copies of the executed signature pages of
this Fourth Amendment shall be effective and binding upon the
parties as if such signatures were original signatures. Any
capitalized term used herein without definition shall have the
meaning state in the Agreement.






 


 


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1








 






 


In
witness whereof, Purchaser and Seller have executed this Fourth
Amendment.


 


 


 


Seller:


PCY
Holdings LLC, a Colorado limited liability company


 


 


 



By:                  

/s/ Mark
Harding                       








 


Its:
President


 


 


 


Purchaser:


Taylor
Morrison of Colorado, Inc., a Colorado corporation


 


 


 



By: /s/ Phillip R.
Cross                                  








 


Its:
Vice President


 




 

2








 







FIFTH AMENDMENT



TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE



(Sky Ranch)


 


This
Fifth Amendment to Contract for the Purchase and Sale of Real
Estate (‘Fifth Amendment”) is entered into effective as
of October 18, 2017, by and between Taylor Morrison of Colorado,
Inc. a Colorado corporation (“Purchaser”), and PCY
Holdings LLC, a Colorado limited liability company
)”Seller”), and amends that certain Contract for
Purchase and Sale of Real Estate between Purchaser and Seller dated
effective June 27, 2017 (the “Agreement”), as
follows:


 




1.

Due Diligence
Period. The Due Diligence Period is hereby extended and shall
expire on October 20, 2017.






 




2.

Miscellaneous.
Except as stated herein, the Agreement shall remain in full force
and effect and is hereby ratified and approved. This Fifth
Amendment may be signed in counterpart. Fax copies and
electronically scanned copies of the executed signature pages of
this Fifth Amendment shall be effective and binding upon the
parties as if such signatures were original signatures. Any
capitalized term used herein without definition shall have the
meaning state in the Agreement.






 


 


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1








 






 


In
witness whereof, Purchaser and Seller have executed this Fifth
Amendment.


 


 


 


Seller:


PCY
Holdings LLC, a Colorado limited liability company


 


 


 



By:                  

/s/ Mark
Harding                  








 


Its:
President


 


 


 


Purchaser:


Taylor
Morrison of Colorado, Inc., a Colorado corporation


 


 


 



By: /s/ Phillip R.
Cross                         








 


Its:
Vice President


 




 

2








 







SIXTH AMENDMENT



TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE



(Sky Ranch)


 


This
Sixth Amendment to Contract for the Purchase and Sale of Real
Estate (‘Sixth Amendment”) is entered into effective as
of October 20, 2017, by and between Taylor Morrison of Colorado,
Inc. a Colorado corporation (“Purchaser”), and PCY
Holdings LLC, a Colorado limited liability company
)”Seller”), and amends that certain Contract for
Purchase and Sale of Real Estate between Purchaser and Seller dated
effective June 27, 2017 (the “Agreement”), as
follows:


 




1.

Due Diligence
Period. The Due Diligence Period is hereby extended and shall
expire on October 31, 2017.






 




2.

Miscellaneous.
Except as stated herein, the Agreement shall remain in full force
and effect and is hereby ratified and approved. This Sixth
Amendment may be signed in counterpart. Fax copies and
electronically scanned copies of the executed signature pages of
this Sixth Amendment shall be effective and binding upon the
parties as if such signatures were original signatures. Any
capitalized term used herein without definition shall have the
meaning state in the Agreement.






 


 


[Balance of Page
Intentionally left Blank; Signature Page Follows]


 




 

1








 






 


In
witness whereof, Purchaser and Seller have executed this Sixth
Amendment.


 


 


 


Seller:


PCY
Holdings LLC, a Colorado limited liability company


 


 


 



By:                  

/s/ Mark
Harding    







 


Its:
President


 


 


 


Purchaser:


Taylor
Morrison of Colorado, Inc., a Colorado corporation


 


 


 



By:                  

/s/ Phillip R.
Cross          








 


Its:
Vice President


 




 

2








 







SEVENTH AMENDMENT



TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE



(Sky Ranch)


 


This
Seventh Amendment to Contract for the Purchase and Sale of Real
Estate (‘Seventh Amendment”) is entered into effective
as of October 20, 2017, by and between Taylor Morrison of Colorado,
Inc. a Colorado corporation (“Purchaser”), and PCY
Holdings LLC, a Colorado limited liability company
)”Seller”), and amends that certain Contract for
Purchase and Sale of Real Estate between Purchaser and Seller dated
effective June 27, 2017 (the “Agreement”), as
follows:


 




1.

Due Diligence
Period. The Due Diligence Period is hereby extended and shall
expire on November 3, 2017.






 




2.

Miscellaneous.
Except as stated herein, the Agreement shall remain in full force
and effect and is hereby ratified and approved. This Seventh
Amendment may be signed in counterpart. Fax copies and
electronically scanned copies of the executed signature pages of
this Seventh Amendment shall be effective and binding upon the
parties as if such signatures were original signatures. Any
capitalized term used herein without definition shall have the
meaning state in the Agreement.






 


 


[Balance of Page
Intentionally left Blank; Signature Page Follows]


 




 

1








 






 


In
witness whereof, Purchaser and Seller have executed this Seventh
Amendment.


 


 


 


Seller:


PCY
Holdings LLC, a Colorado limited liability company


 


 


 



By:                  

/s/ Mark
Harding              








 


Its:
President


 


 


 


Purchaser:


Taylor
Morrison of Colorado, Inc., a Colorado corporation


 


 


 



By:                  

/s/ Phillip R.
Cross               








 


Its:
Vice President


 




 

2








 





 



EIGHTH AMENDMENT

 



TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE



(Sky Ranch)

 


This
Eighth Amendment to Contract for the Purchase and Sale of Real
Estate (`Eighth Amendment") is entered into effective as of
November 3, 2017, by and between Taylor Morrison of Colorado, Inc.
a Colorado corporation ("Purchaser"), and PCY Holdings LLC, a
Colorado limited liability company ("Seller"), and amends that
certain Contract for Purchase and Sale of Real Estate between
Purchaser and Seller dated effective June 27, 2017 (the
"Agreement"), as follows:

 




1.

Due Diligence
Period. The Due Diligence Period is hereby extended and shall
expire on November 7, 2017.





 




2.

Miscellaneous.
Except as stated herein, the Agreement shall remain in full force
and effect and is hereby ratified and approved. This Eighth
Amendment may be signed in counterpart. Fax copies and
electronically scanned copies of the executed signature pages of
this Eighth Amendment shall be effective and binding upon the
parties as if such signatures were original signatures. Any
capitalized term used herein without definition shall have the
meaning state in the Agreement.





 

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1








 





 


In
witness whereof, Purchaser and Seller have executed this Eighth
Amendment.

 


Seller:

 


PCY
Holdings LLC, a Colorado limited liability company

 

 


 

 

 



By: /s/ Mark
Harding                                   







 

 


Name:
Mark Harding

 

 


 

 

 


Taylor
Morrison of Colorado, Inc., a Colorado corporation

 


 

 


 



By: /s/ Phillip R.
Cross                           








 


Name:
Phillip R. Cross


 


 








 

2








 





 



NINTH AMENDMENT

 



TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE



(Sky Ranch)

 


This
Ninth Amendment to Contract for the Purchase and Sale of Real
Estate (“Ninth Amendment”) is entered into effective as
of November 7, 2017, by and between Taylor Morrison of Colorado,
Inc. a Colorado corporation (“Purchaser”), and PCY
Holdings LLC, a Colorado limited liability company
(“Seller”), and amends that certain Contract for
Purchase and Sale of Real Estate between Purchaser and Seller dated
effective June 27, 2017 (the “Agreement”), as
follows:

 




3.

Due Diligence
Period. The Due Diligence Period is hereby extended and shall
expire on November 10, 2017.





 




4.

Miscellaneous.
Except as stated herein, the Agreement shall remain in full force
and effect and is hereby ratified and approved. This Ninth
Amendment may be signed in counterpart. Fax copies and
electronically scanned copies of the executed signature pages of
this Ninth Amendment shall be effective and binding upon the
parties as if such signatures were original signatures. Any
capitalized term used herein without definition shall have the
meaning state in the Agreement.





 

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Intentionally left Blank; Signature Page Follows]

 

 

 







1








 





 

In witness
whereof, Purchaser and Seller have executed this Ninth
Amendment.

 


Seller:

 


PCY
Holdings LLC, a Colorado limited liability company

 

 


 

 

 



By: /s/ Mark
Harding              







 

 


Name:
Mark Harding

 


Taylor
Morrison of Colorado, Inc., a Colorado corporation

 


 

 


 

 



By: /s/ Phillip R.
Cross                                    







 


 

 


Name:
Phillip R. Cross


 








 

2