Blueprint





  Exhibit 10.19







 


 



PCY HOLDINGS, LLC


 



and


 



RICHMOND AMERICAN HOMES 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

	


13


	


9

	


Seller’s Delivery of Title

	


16


	


10

	


Due Diligence Period; Acceptance of Property; Release and
Disclaimer

	


17


	


11

	


Seller’s Representations

	


24


	


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


	
 

	
 

	
 






 



 

ii







 





 


	


23

	


Assignment

	


34


	


24

	


Survival

	


34


	


25

	


Condemnation

	


34


	


26

	


Brokers

	


35


	


27

	


Default and Remedies

	


35


	


28

	


General Provisions

	


36






 


 

 


 


 
iii








 










 



DEFINITIONS


“Alternative
Service” shall have the meaning set forth in Section
5(b).


“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).



 

iv







 






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


“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).


“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)(ii).


“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).



 

v







 






“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 5(b).


“Non-Government
Warranty” shall have the meaning set forth in Exhibit
C, Section 5(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 5(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).


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


“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).



 

vi







 






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


“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.


“Sidewalks”
shall have the meaning set forth in Exhibit C, Section
4.


“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 Building Permit Required Improvement Deadline” shall
have the meaning set forth in Section 8(b).


“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 4.


 



 

vii







 






 



CONTRACT FOR PURCHASE



AND SALE OF REAL ESTATE


 


THIS
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE (this "Contract" or
“Agreement”) 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 RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware
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 190 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"; and, the Lots which are to be conveyed at the second
Closing shall be sometimes hereinafter collectively referred to as
the "Takedown 2
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 190 Lots that are approximately 50 feet
wide by approximately 110 feet deep for the construction of single
family detached homes.


 


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 two (2) 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”), one-hundred (100) Lots;

 


At the
Takedown 2 Closing (“Second
Closing”), ninety (90) 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 Fifteen Thousand and 00/100 Dollars
($15,000.00) paid by Purchaser to Seller by wire transfer or other
immediately available and collectible funds ("Good
Funds"), and the “Deferred Purchase
Price” of Fifty Four Thousand and 00/100 Dollars
($54,000.00) paid by Purchaser to Seller for a total of Sixty Nine
Thousand and 00/100 Dollars ($69,000.00) 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, and
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, as more
particularly described in Section 5(c) below.

 

(b) Purchase Price Escalator. The
portion of the Purchase Price of each Lot not paid at the First
Closing 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 such amount
is paid, 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
Initial Purchase Price of a Lot at the Closing of the Takedown 1
Lots is $15,000, 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 $15,375, which is calculated as follows: $15,000 + ($15,000 x
..025) = $15,375.

 



 

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 $100,000.00 (the “Initial
Deposit”. At the end of the Due Diligence Period and
within three (3) business days following the delivery of the
Continuation Notice (as hereinafter defined), Purchaser shall
deliver to the Title Company an additional $110,000 (the
“Additional
Deposit”). The Initial Deposit and the Additional
Deposit and all interest earned thereon shall be referred to herein
as the "Deposit."
The Title Company will act as escrow agent and invest the Deposit
in a federally insured institution at the highest money market rate
available. The Deposit shall be paid in Good Funds. One-half of the
Deposit will be applied to the Closing Purchase Price Payment for
the Takedown 1 Lots and one-half of the Deposit will be applied to
the Closing Purchase Price Payment for the Takedown 2 Lots. If this
Contract is terminated prior to the expiration of the Due Diligence
Period for any reason, the Initial Deposit shall be refunded to
Purchaser. If this Contract is terminated prior to the Deposit
being fully applied to the Purchase Price at the last Closing, the
unapplied portion of 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 (as hereinafter
defined).

 

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") and underwritten by 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 Initial
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”), and to the extent required by the Title
Company a commercially reasonable indemnity agreement (the
“Title Company
Indemnity”), 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 any information regarding such work reasonably requested by
Title Company, provided, however, if the 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 to delete such
lien exception, however, the Purchaser has no further termination
right if the Title Company does not agree to do so. Seller shall
request that the Takedown Commitment (as hereinafter defined)
provide for the deletion of the other standard printed exceptions
from the Title Policy as part of extended coverage (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 and Title Company Indemnity 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, as reasonably determined by
Purchaser, 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 unapplied 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.



 

4







 





 

(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, to utilize the reservation of rights set forth on
Exhibit B hereof, 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.



 

5







 





 

(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 sole
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 Initial 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 revisions have no material adverse effect on the Lots acquired
or to be acquired by Purchaser.

 

(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.
Such Title Policy shall include extended coverage subject to the
provisions of Section 4(a) hereof. Seller shall pay the premium for
the basic policy at such Closing and Purchaser shall pay any
additional premium for extended coverage if available. 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.



 

6







 





 

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, of the following for each
respective Takedown: (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
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 (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 each of the Lots are approximately 50 feet wide by
approximately 110 feet deep, with a building envelope on not less
than 40’ 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. Seller shall use commercially
reasonable efforts to have the Entitlements for each Takedown,
respectively, to be 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 reasonable
efforts to obtain Final Approval of the Entitlements for the
Takedown 1 Lots on or before nine (9) months after the expiration
of the Diligence Period (or any extensions thereof). If Final
Approval of the Entitlements for the Takedown 1 Lots has not been
achieved as aforesaid on or before nine (9) months after the
expiration of the Diligence Period (or any extensions thereof),
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. If Seller
extends the time period for obtaining such Final Approval for the
Takedown 1 Lots, then during such extended time period Seller shall
continue to use commercially reasonable efforts to obtain Final
Approval of such Entitlements, and failing which, Seller shall not
be in default of its obligations under this Contract, but the
Purchaser may as its sole remedy hereunder terminate this Contract
as to such Takedown and any remaining Takedowns by written notice
to Seller, delivered within ten (10) business days after the end of
the time period as extended for obtaining such Final Approval, in
which case each party shall thereupon be relieved of all further
obligations and liabilities under this Contract, except as
otherwise provided herein, and the Deposit shall be returned to
Purchaser. Failure to give notice as described above shall be an
irrevocable waiver of Purchaser’s right to terminate this
Contract due to Seller’s failure to obtain Final Approval of
the Entitlements for the Takedown 1 Lots. 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. Purchaser, at no material cost
to Purchaser (other than costs incurred to obtain services that
could reasonably be performed or provided in-house), shall
reasonably cooperate with Seller in Seller’s efforts to
obtain Final Approval of the Entitlements by the
County.



 

7







 





 

(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.

 

(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, using 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. 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.
Without limiting the generality of the foregoing, Purchaser
specifically acknowledges and agrees that the WWRF 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, 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
operational on the date that Purchaser obtains its first building
permit for a Lot, and shall continue in operation until such time
as the WWRF is Substantially Complete. Funding for the Alternative
Service shall be included in 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 subject to certain limitations
and other provisions set forth in Section 4.5.1 of the Lot
Development Agreement. 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 Condition Precedent, Seller or Rangeview shall on
or before the First Closing (i) have substantially completed the
CDs for the Offsite Infrastructure Improvements; (ii) have obtained
development permits for the Offsite Infrastructure Improvements;
(iii) have let the contracts for installation of the Offsite
Infrastructure Improvements 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 Contract
under Section 10(a) and if Purchaser does not so terminate this
Contract then the Offsite Infrastructure Escrow Agreement(s) shall
be deemed approved. At Closing the Purchaser shall become a party
by joinder to the Offsite Infrastructure Escrow Agreements solely
with respect to remedies for a Seller default in timely completing
the Offsite Infrastructure Improvements (Seller and Purchaser agree
that the Offsite Infrastructure Escrow Agreement will provide
Purchaser the first right to step-in and complete the Off-site
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 such Offsite Infrastructure Escrow Agreements
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 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 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. The form of the Joint Improvements Memorandum shall
be agreed upon during the Inspection 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 prior to the expiration of the Due
Diligence Period, in which event the Initial Deposit shall be
returned to Purchaser as provided in Section 10(a)
hereof.



 

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 HomeAmerican Mortgage
Corporation 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 the estimated Escalator thereon in an amount
equal to $1,350.00 per Lot acquired at the Second Closing with
respect to the Letter of Credit delivered at the Second Closing.
Title Company shall hold and maintain the Letter of Credit pursuant
to this 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 shall be reduced from time to time to the extent of
payments of the Deferred Purchase Price in Good Funds are 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 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 the First Closing 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. 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 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 respective deadlines set forth above for the applicable
Takedown, during which time Seller shall use commercially
reasonably efforts to cause such conditions to be
satisfied.

 

(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:

 

(i) Final Approval of
the Entitlements (which Entitlements shall be as required by
Section 5(a) of this Agreement) 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 committed 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) Purchaser obtaining
AMC Approval on or before the expiration of the Due Diligence
Period. The delivery of a Continuation Notice to Seller shall be
deemed to include AMC Approval;

 

(v) Seller’s
delivery to Purchaser of satisfactory approval, in writing, of
Purchaser’s House Plans as provided in Section 12(d)(i) of
this Contract; and

 

(vi) Purchaser shall
have received letters from the appropriate Authorities that the
Lots have water and sewer tap commitments sufficient for
Purchaser’s intended build-out of the Lots, subject to the
payment of tap fees and contingent upon completion of the necessary
water and sewer infrastructure.



 

11







 





 


If the
Purchaser’s Conditions Precedent are not satisfied on or
before each respective Closing Date of other applicable date
specified above, 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(a).

 

(c) Moratorium. After the Effective
Date and prior to each Closing, if any state, county, city, public
school district, or other Authority declares or effects any
moratorium or other limitation (“Moratorium”) on: (a) the issuance
permits for the construction of infrastructure to serve the Lots,
building permits for the construction of houses or Certificates of
Occupancy for those houses; (b) the purchase of sewer and/or water
taps; or (c) the processing of any engineering, architecture or
other plans or documents necessary for the construction of
residential units or infrastructure improvements to serve such
residential units, which Moratorium is applicable to the Lots,
then, in such event, Purchaser shall have the right to terminate
this Contract by delivery of written notice of termination to the
Seller. In the event of such termination by Purchaser, that portion
of the Deposit then on deposit shall be refunded to
Purchaser.

 

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.

 

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.

 



 

12







 





 

(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 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 (the "Takedown 2
Closing") shall be the date that eighteen (18) months after
the Takedown 1 Closing Date 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 term "Closing
Date" may be used to refer to each of the Takedown 1 Closing
Date and the Takedown 2 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 and the
Lot Development Agreement 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.

 

(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.



 

13







 





 

(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
and Title Company Indemnity.

 

(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(s) 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:

 

(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(s) 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.



 

14







 





 

(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.

 

(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);



 

15







 





 

(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;

 

(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.



 

16







 






 

(a) Feasibility Review. Within five
(5) business days following the Effective Date, Seller shall
deliver or make available (at Seller’s office or via
electronic file share) 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) 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, including without limitation
architectural approvals, 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 Initial 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.

 

(i) Asset Management Committee
Approval. On or before the expiration of the Due Diligence
Period, Purchaser shall have obtained the written approval of the
Board of Directors of M.D.C. Holdings, Inc. ("MDC") or MDC’s Asset Management
Committee (“AMC
Approval”), to issue a Continuation Notice for the
transaction contemplated hereunder, and if Purchaser delivers a
Continuation Notice or otherwise elects not to terminate this
Agreement on or before the expiration of the Due Diligence Period,
then Purchaser will be deemed to have obtained such approval and
satisfied this condition to Builder’s obligation to
Close;

 

(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(b) and Section 5(c) 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;



 

17







 





 

(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.

 



 

18







 





 

(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.



 

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.

 

(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 5(b) 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.



 

20







 





 


EXCEPT
FOR REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE
EXPRESSLY SET FORTH IN THIS CONTRACT OR OTHERWISE PROVIDED IN THIS
CONTRACT, INCLUDING, WITHOUT LIMITATION, THE OBLIGATIONS OF SELLER
UNDER THE LOT DEVELOPMENT AGREEMENT AND THE OFFSITE INFRASTRUCTURE
AGREEMENT, AND 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 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.

 


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.


 



 

21







 






 


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 hereby fully releases Seller, Seller’s
affiliates, divisions and subsidiaries and their respective
managers, members, partners, officers, directors, shareholders,
affiliates, representatives, employees, consultants and agents (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 this
Contract, including 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 (excluding Seller and its affiliates)
for construction defects in the Finished Lot
Improvements.

 


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.

 



 

22







 





 

(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) personal
injuries or property damages occurring after a Closing by reason of
or arising out of the geologic, soils or groundwater conditions on
the Lots (such conditions being collectively referred to herein as
“On-Lot Soil
Conditions”, (iv) Purchaser’s development,
construction, use, ownership, management, marketing or sale
activities associated with the initial home construction on 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) Intentionally
Deleted (vi) the design, engineering, structural integrity
or construction of any homes constructed by Purchaser on the Lots
after a Closing, or (vii) any claim asserted by Purchaser’s
homebuyers or their successors in interest alleging construction
defects related to any Overex work performed by Purchaser. 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”). Purchaser is not required by this
indemnification provision to indemnify the Seller against (A) any
claims arising out of or relating to Off-Lot Soil Conditions
(defined below) (B) Seller's failure to perform its obligations
under this Contract or under any of the Closing documents, (C)
Seller's breach of an express warranty or representation set forth
in this Contract or in any of the Closing Documents, or (D) claims
arising directly from the decisions of Seller acting in its
capacity as declarant under the Declaration. Seller shall
indemnify, defend (with counsel reasonably selected by Seller with
Purchaser approval) and hold harmless the Purchaser Parties of,
from and against any and all claims, demands, liabilities, losses,
expenses, damages, costs and reasonable attorneys’ fees that
any of the Purchaser Parties may at any time incur by reason of or
arising out of either personal injuries or property damages
occurring after a Closing by reason of or arising out of the
geologic, soils or groundwater conditions on the Development other
than the On-Lot Soil Conditions (such conditions being collectively
referred to herein as “Off-Lot Soil
Conditions”). Seller covenants with Purchaser that
Seller has and will include geologic, soils and groundwater
provisions in the indemnities Seller obtains from other builders
within the Development at least as protective of Seller as provided
in this Section.

 

(j) The provisions of
this Section
10 shall survive
each Closing and the delivery of each respective deed to the
Purchaser. Notwithstanding anything to the contrary contained in
the foregoing provisions of this Section 10, the provisions of
Sections 10(d) through 10(i), inclusive, will not, under any
circumstances, be construed or interpreted as releasing Seller
from, and Purchaser hereby reserves, any claim arising out of (a)
the express representations of Seller contained in any Closing
document or in this Agreement, including, without limitation, the
Seller’s Representations, (b) Seller’s breach of its
obligations under the Lot Development Agreement and the Offsite
Infrastructure Escrow Agreements.

 

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


 

(a) 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.



 

23







 





 

(b) 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.

 

(c) 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.

 

(d) 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.

 

(e) 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.

 

(f) 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.

 

(g) 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.

 

(h) 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.

 

(i) 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,.

 



 

24







 






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. In the event that any
information contained in the Seller Documents conflicts with
Seller’s Representations set forth in this Section, the
Seller Documents shall govern and control and such inconsistency
shall not constitute a breach by Seller of its Seller’s
Representations herein. Seller and Purchaser shall notify the other
in writing immediately if any Seller’s Representation become
untrue or misleading in light of information obtained by Seller or
Purchaser after the Effective Date. In the event that Purchaser has
actual 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, 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 to the extent if any representation that
is known by Purchaser or is contained in materials made available
to Purchaser that makes Seller’s Representations untrue as of
such Closing Date and in any such instance Seller’s
Representations 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.



 

25







 





 

(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 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 meet
certain architectural, design, and landscaping criteria and
guidelines included in the approved SDP applicable to the Property
(the “SDP
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. However, 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.



 

26







 





 

(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 the Effective Date of
this Contract. Seller will review the House Plans and Seller shall
deliver notice to Purchaser of the Seller’s preliminary
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. If Seller fails to
so notify Purchaser of preliminary 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 three (3) business days of its approval of disapproval. If
Seller fails to approve or disapprove within such 3-business day
period, the House Plans shall be deemed preliminarily approved. 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. Seller will use reasonable efforts to confirm that
Purchaser’s House Plans, as approved by Seller, are
compatible with the SDP Criteria. Upon County approval of the SDP,
Seller will conduct a second review of the House Plans for
compliance and compatibility with the SDP Criteria. If the House
Plans do not materially comply with the County-approved SDP
Criteria applicable to the Property, Seller will notify Purchaser.
If Purchaser and Seller are unable to agree upon mutually
acceptable revisions to the House Plans so that they comply with
the SDP Criteria, then Purchaser may 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 those that expressly survive termination of this
Contract. 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 SDP Criteria and the Master Covenants 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 Master Covenants and SDP 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 SDP 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 SDP Criteria and does not constitute a
representation or warranty that Purchaser’s House Plans
comply with SDP Criteria and Purchaser shall be responsible for
confirming such compliance.



 

27







 





 

(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.

 

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, in
Purchaser’s reasonable judgment, 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 in Purchaser’s reasonable judgment, 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.



 

28







 






 

(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 Initial 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.


 

(b) Sky Ranch Metropolitan District No.
1. The Property is included within the boundaries of the Sky
Ranch Metropolitan District No. 1 (“District”).
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; and (iii)
fees for payment-in-lieu of school land dedications.



 

29







 





 

(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 the District, Rangeview or 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) any infrastructure (facility) fee,
including, without limitation, any transportation/road fee, which
may be imposed either by the County, the District or other
Authority; (ii) 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 (iii) any excise fees.

 

(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. If
representatives of Seller constitute a majority of the board of the
District and the Seller controlled board adopts and levies any new
SDF after a Closing, Seller shall pay such SDF levied against any
Lot that has been acquired by Purchaser for so long as Purchaser
owns such Lot.

 

(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 open space fees, school impact
fees, capital expansion fees, transportation/road fees, traffic
impact 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), excluding in all events the fees to be paid by Seller
pursuant to Section 16(c)(i) above. 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.



 

30







 





 

18. Name and Logo
;
Sales
Activity.


 

(a) 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 that Seller promulgates with respect to such
usage.

 

(b) Following Closing,
Purchaser may conduct sales activities (a) from a sales trailer
placed on the Development by Purchaser in a reasonable location
approved by Seller, subject to relocation at Purchaser’s cost
if necessary to accommodate ongoing development and sales
activities, or (b) from any other site owned or leased by
Purchaser.

 

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 a 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.



 

32







 






 

23. Assignment.


 

(a) Seller's Assignment. Seller may
assign its rights and obligations under this Contract with respect
to the Lots not yet Closed without the consent of, but with prior
notice to, Purchaser: (i) to any entity that acquires all or
substantially all of the Seller’ interests in such Lots which
Seller reasonably believes has the financial ability and experience
to perform Seller’s obligations under this Contract; or (ii)
to an entity that controls, is controlled by, or under common
control with, Seller.

 

(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.

 

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.

 



 

33







 





 

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 this Contract, 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.

 

(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 unapplied 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).



 

34







 





 

(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.

 

(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.

 



 

35







 





 

(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, subject to Purchaser
obtaining AMC Approval, 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.

 

(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 (provided,
however, any notice of default to Purchaser may not be sent by
electronic mail and must be sent by one of the other methods of
delivery set forth above):

 


 




 

36








 






 


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:        Linda
Purdy


Richmond American
Homes of Colorado, Inc.


4350
South Monaco Street


Denver,
Colorado 80237


Telephone:
(720)-977-3847


Facsimile.: (720)
977-4707


Email:
linda.purdy@mdch.com


 


with a
copy
to:                                


M.D.C.
Holdings, Inc.


4350
South Monaco Street


Denver,
Colorado 80237


Attn:
Drew Rippey


Telephone: (720)
977-3213


Telecopier No.
(720) 482-8558


Email:
Drew.Rippey@mdch.com


 


M.D.C.
Holdings, Inc.


4350 S.
Monaco Street


Denver,
CO  80237


Attn:
Linda Zimmerman Skultety


Senior
Paralegal – Real Estate


Telephone: 
720-977-3254


Fax: 
303-488-4954


Email:
Linda.Skultety@mdch.com


 



 

37







 






 


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.

 

(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.

 



 

38







 





 

(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.

 

(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.

 



 

39







 





 

(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.

 



 

40







 





 

(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.

 

(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.



 

41







 





 

(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.

 



 

42







 





 

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

 


 



[Remainder of page intentionally left blank]


 


 


 


 


 


 


 


 




 

43








 






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


 


 


	

SELLER:


 


	

PCY
HOLDINGS, LLC,


a
Colorado limited liability company


	
 

	
 


	
 


	
 


	

By:
/s/ Mark
Harding 


Name:
Mark Harding


Title:
President


Date:
June 23, 2017







 


 


 


 


	

PURCHASER:


 


	

RICHMOND
AMERICAN HOMES OF COLORADO, INC. a Delaware
corporation


 


 


 


	

By:

	

/s/
Linda M. Purdy 


	

Name:
Linda M. Purdy


	

Title:
Vice President


	

Date:
June 27, 2017







 


 


 




 

44








 






 



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


 


 


 


 


 




 

45








 







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 open space fees,
school impact fees, capital expansion fees, transportation/road
fees, traffic impact 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), but
excluding (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; and
(iii) fees for payment-in-lieu of school land dedications. 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.


 


 


 


 



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) and any retaining walls required by
CDs;


 

(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, provided that Seller shall timely complete such final
lift of asphalt so as not to delay issuance of certificates of
occupancy for homes constructed by Purchaser;


 

(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 easements), 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 easements), 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.



 

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; and (iii) Seller will seek
to coordinate the activities of the utility service provider with
development of the Property for the timely installation of such
utilities. 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.


 

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-3







 






 

(c) EXCEPT AS EXPRESSLY
PROVIDED IN THIS SECTION 5, 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 OR AS OTHERWISE PROVIDED BY LAW.

 

 

 

 

 



c-4








 







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
_______________, 201__ (the "Agreement"), pursuant to which PCY
Holdings, LLC, a Colorado limited liability company ("Seller"), has
agreed to sell to Richmond American Homes of Colorado, Inc., a
Delaware 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 construction
plans and specifications; (iii) all construction warranties; and
(iv) all development rights benefiting the Property.


 


SELLER:


 


PCY
HOLDINGS, LLC,


a
Colorado limited liability company


 


 



By:                                                                 






Name:
____________________________


Title:
_____________________________



Date:                                                                 






 


 




E-1








 







EXHIBIT F


 



LOT DEVELOPMENT AGREEMENT



Sky Ranch



(Richmond)


 


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 Richmond American Homes of Colorado, Inc., a Delaware
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 100 single family residential building
lots, and will be acquiring an additional 90 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 by Seller
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.





 



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.







 

F-1







 





 



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.

 

3.1 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).

 

3.2 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.

 

3.3 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







 





 

3.4 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.

 

3.5 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.

 

3.6 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 (a) Off-Lot Soils
Conditions, or (b) material damage caused by Developer’s
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. 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 (a) On-Lot
Soils Conditions, (b) Builder’s development, construction,
use, ownership, management, marketing or sale activities associated
with the initial home construction on the Lots (including, without
limitation, land development, grading, excavation, trenching, soils
compaction and construction on the Lots performed by or on behalf
of Builder); (c) Intentionally
Deleted; (d) 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 out of
Developer’s negligence or willful misconduct in the
performance of Developer’s obligations under this LDA; or (e)
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. Notwithstanding the foregoing,
Builder shall not, as to any Builder Lot, be obligated under this
LDA to indemnify, defend or hold harmless Developer Indemnitees
from claims arising out of development, construction, use,
ownership, management, marketing or sales activities associated
with the initial construction of homes on Builder Lots which occurs
after Builder conveys such Builder Lot if such successor is
reasonably 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. Developer covenants
with Builder that Developer has and will include geologic, soils
and groundwater provisions in the indemnities Developer obtains
from other builders within the Development that are at least as
protective of Developer as those provided in Sections 3.6 and 4.7
of this Agreement.  Obligations under this Section shall
survive the termination or expiration of this LDA.



 

F-3







 





 

3.7 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.

 

3.8 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.

 

4.1 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 4.1, 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







 





 

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

 

4.1.2 With respect to
those certain Lots identified in Exhibit H
attached hereto and incorporated herein by this reference, material
adverse impact on the ability to serve basements with nine (9) foot
foundation wall heights with gravity flow sanitary sewer service on
the Builder Lots.

 

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

 

4.2 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).

 

4.3 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







 





 

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

 

4.4.1 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.

 

4.4.2 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







 





 

4.5 Substantial
Completion.

 

4.5.1 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):

 

(a) Subject to
Section
4.5.1(c) below, 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
4.5.2 below so that
Builder is not precluded from obtaining from the Approving
Authorities building permits for houses constructed, or to be
constructed (or certificates of occupancy therefor), 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;

 

(b) Subject to
Section
4.5.1(c) below, 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 (or certificates of occupancy therefor), on any Builder
Lots solely as a result of such Improvements (or applicable
component thereof) not being complete;

 

(c) 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, (collectively, 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.

 

(d) 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.



 

F-7







 





 

(e) 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.

 

4.5.2 Inspection.

 

(a) 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.



 

F-8







 





 

(b) 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.

 

(c) 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.

 

4.6 Self-Help Remedy.

 

4.6.1 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







 





 

4.6.2 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 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, and the Substitute Constructing Party
shall be entitled to recover the Constructing Party Cost Overruns
incurred by the Substitute Constructing Party from the Developer.
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







 





 

4.6.3 Appointment of Substitute Constructing
Party. For purposes of exercising the self-help remedies set
forth in this Section 4.6 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 4.6 (“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 the Builder shall, at
Builder’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”). Builder 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 Builder 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 J.

 

4.7 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 BUILDER’S 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.



 

F-11







 





 

4.8 Warranty Periods.

 

4.8.1 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 pursuant to the Expedited Dispute procedure in
Section 7, below.

 

4.8.2 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.



 

F-12







 





 

4.9 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.

 

4.10 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 forty-five (45)
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
forty-five (45) calendar days of such request (which 45-day period
may be extended by Developer to 60 days provided that Developer has
proceeded in good faith and with diligence and not achieved the
filing or recording of an appropriate release or bond by the end of
the 45-day period), 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.

 

4.11 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.



 

F-13







 





 

4.12 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.

 

5. Costs of
Improvements.

 

5.1 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.

 

5.2 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. The costs identified on the Budget are referred
to herein as (“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
Fifty Four Thousand Dollars ($54,000.00) per Builder Lot plus the Escalator
(which based on a total of 190 Builder Lots is equal to
$10,260,000.00 plus the Escalator), and (ii) the Builder Cost
Overruns, as defined below (collectively, the “Maximum Builder
Costs”).

 

5.3 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, (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, and
(iii) all other costs and charges that cause the Costs to exceed
the Budged Costs (with the exception of Builder Cost Overruns)
(collectively, the “Constructing Party
Cost Overruns”). The Builder shall immediately 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.



 

F-14







 





 

5.4 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.

 

5.5 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”).

 

6. Payment of Costs.

 

6.1 Payment.

 

6.1.1 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:

 

(a) Takedown 1 Lots – Phase
1. Phase 1 consists of approximately 50 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 $1,350,000.00
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 $1,350,000.00 plus the
Escalator.



 

F-15







 





 

(b)  Takedown 1 Lots – Phase
2. Phase 2 consists of approximately 50 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 $1,350,000.00
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 $1,350,000.00 plus the
Escalator.

 

(c) Takedown 2 Lots – Phase
3. Phase 3 consists of approximately 45 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 $1,215,000.00
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 $1,215,000.00 plus the
Escalator.

 

(d)  Takedown 2 Lots – Phase
4. Phase 4 consists of approximately 45 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 $1,215,000.00
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 $1,215,000.00 plus the
Escalator.

 

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

 

(f) 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.

 

(g) 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.

 

(h) Security for Payment of Deferred
Purchase Price - Letter of Credit. In order to secure
Builder’s obligation following 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
HomeAmerican Mortgage Corporation in the form attached to the
Contract as Exhibit
G and to this LDA as Exhibit I
(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 $1,350.00 per Lot acquired at the Second Closing with
respect to the Letter of Credit delivered at the Second 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 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 shall be reduced from time to time to
the extent of payments of the Deferred Purchase Price in Good Funds
made by Purchaser for 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-16







 





 

7. Expedited Dispute
Resolution.

 

7.1 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.



 

F-17







 





 

7.2 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.

 

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:



 

F-18







 





 

9.1.1 Such valid Colorado
Construction Stormwater Discharge Permit for the Builder
Lots;

 

9.1.2 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

 

9.1.3 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.


 

9.2
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 (provided,
however, any notice of default from Developer to Builder may not be
delivered by electronic mail message and must be delivered by
facsimile or other delivery method set forth above). The Notice
Addresses for the Developer and Builder are as
follows:



 

F-19







 





 


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


 


To
Builder:


Linda
Purdy


Richmond American
Homes of Colorado, Inc.


4350
South Monaco Street


Denver,
Colorado 80237


Telephone:
(720)-977-3847


Facsimile.: (720)
977-4707


Email:
linda.purdy@mdch.com


 


with a
copy to:


M.D.C.
Holdings, Inc.


4350
South Monaco Street


Denver,
Colorado 80237


Attn:
Drew Rippey


Telephone: (720)
977-3213


Telecopier No.
(720) 482-8558


Email:
Drew.Rippey@mdch.com


 


M.D.C.
Holdings, Inc.


4350 S.
Monaco Street


Denver,
CO  80237


Attn:                      Linda
Zimmerman Skultety


Senior
Paralegal – Real Estate


Telephone: 
720-977-3254


Fax: 
303-488-4954


Email:
Linda.Skultety@mdch.com



 

F-20







 






 


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


 

11. Attorneys’ Fees. Except
as provided in Section 7.1, 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.

 

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.



 

F-21







 





 

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:

 

17.1 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

 

17.2 Developer may
assign, without consent (but with prior notice to Builder), 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 which Seller
reasonably believes has the financial ability and experience to
perform Seller’s obligations under this LDA.

 

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.

 

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.



 

F-22







 





 

21.1 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.

 

21.2 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:

 


 

 


Richmond American
Homes of Colorado, Inc.,

 


a
Delaware 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


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 







 




(Sky
Ranch Lot Development Agreement)

F-26








 






Exhibit
A


to


Lot
Development Agreement


 


(Description
of Property for Each Applicable Phase)


 




 


 




(Sky
Ranch Lot Development Agreement)


 








 






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]


 


 




 


 




(Sky
Ranch Lot Development Agreement)


 








 






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.






 




(Sky
Ranch Lot Development Agreement)


 








 






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:


 

(a) 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) and any retaining walls required by
the Plans;


 

(b) 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;


 

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


 

(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 Plans;


 

(e) 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;


 

(f) 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;


 

(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 Standard does not include
any Overex;


 

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



 







 






 


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
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.







 


 




(Sky
Ranch Lot Development Agreement)


 








 






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]


 


 


 


 


 


 


 


 


 


 






 






Exhibit
G


to


Lot
Development Agreement


 


Wet
Utilities


 




 




(Sky
Ranch Lot Development Agreement)








 






 


Exhibit
H


to


Lot
Development Agreement

 


Lots
Having Basements

 



 


 


 




(Sky
Ranch Lot Development Agreement)








 






Exhibit
I


to


Lot
Development Agreement

 


Form of
Letter of Credit


 


 





(Sky Ranch Lot
Development Agreement)








 






 





(Sky
Ranch Lot Development Agreement)







 






 





(Sky Ranch Lot
Development Agreement)








 






 





(Sky Ranch Lot
Development Agreement)








 






 




 




(Sky
Ranch Lot Development Agreement)








 






Exhibit
J


 

 


Joint
Improvements Agreement

 


 


[To be
determined]


 


 


 


 




(Sky
Ranch Lot Development Agreement)








 







EXHIBIT G


 



FORM OF LETTER OF CREDIT


 





(Sky Ranch Lot
Development Agreement)


G-1







 






 


 





(Sky
Ranch Lot Development Agreement)

G-2







 









(Sky Ranch Lot
Development Agreement)


G-3







 






 





(Sky Ranch Lot
Development Agreement)

G-4







 






 




 





(Sky Ranch Lot Development
Agreement)


G-5








 







FIRST AMENDMENT TO



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 


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

 



R E C I T A L S


 


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

 


B.           Purchaser
and Seller now desire to amend the terms and conditions of the
Contract as set forth below.

 



A G R E E M E N T


 


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

 


1.           Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to August 30, 2017.

 


2.           Miscellaneous.
In the case of any conflict between the terms of this Amendment and
the provisions of the Contract, the provisions of this Amendment
shall control. Except as the Contract is specifically modified by
this Amendment, the Parties hereby ratify, reaffirm, and restate
the terms of the Contract. This Amendment may be executed in
counterparts, each of which shall be deemed an original and may be
signed and delivered by facsimile transmission or electronic mail,
and all of which, when taken together, shall constitute one and the
same Amendment.

 


[SIGNATURE
PAGE FOLLOWS]


 




 








 






 


IN
WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the last day and year written below.

 


 


SELLER:


 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


 



By: /s/ Mark
Harding                                     








Name:
Mark Harding


Title:
President


Date:
August 28, 2017


 


 


 


PURCHASER:


 


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


 


 



By: /s/ Linda M.
Purdy                             








Name:
Linda M. Purdy


Title:
Vice President


Date:
August 28, 2017


 




SIGNATURE
PAGE TO FIRST AMENDMENT








 







SECOND AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL
ESTATE



(Sky Ranch)


 


THIS
SECOND AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this “Amendment”) dated August 29, 2017 by and between
RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware corporation
(“Purchaser’’) and PCY HOLDINGS, LLC, a Colorado
limited liability company (the “Seller”).

 



EXPLANATORY STATEMENT


 


A.           Seller
and Purchaser entered into a Contract for Purchase and Sale of Real
Estate with an effective date of June 27, 2017, as amended (the
“Purchase Agreement”), for the purchase and sale of
real property located in Arapahoe County, Colorado, as more
particularly described in the Purchase Agreement.

 


B.           Seller
and Purchaser desire to amend certain terms and conditions of the
Purchase Agreement, all as more fully set forth in this
Amendment.

 


NOW,
THEREFORE, in consideration of the foregoing Explanatory Statement,
the covenants and agreements set forth below and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:

 


1.           Explanatory
Statement. The Explanatory Statement of this Amendment forms
an integral part of this Amendment and is hereby incorporated by
reference. Initially capitalized terms used in this Amendment shall
have the meaning ascribed to them in the Purchase Agreement, unless
the context clearly requires otherwise.

 


2.           Amendments.

 


2.1           Section
10.(a) Due Diligence Period. Section 10.(a) of the Purchase
Agreement is hereby amended to reflect that the Due Diligence
Period shall expire on September 8, 2017.

 


3.           Miscellaneous.

 


3.1           Binding
Effect. This Amendment shall be binding on and inure to the
benefit of the parties hereto, and their respective successors and
assigns.

 


3.2           Governing
Law. This Amendment shall be construed, interpreted and
enforced in accordance with Colorado law, without regard to
principles of conflict of laws.

 


3.3           Time
of the Essence. Time shall be of the essence with respect to
this Amendment.

 


3.4           Counterparts.
This Amendment may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which shall
constitute one and the same agreement.



 

1







 





 


3.5           Severability.
If any provision of this Amendment, or the application thereof to
any person or circumstances, shall, for any reason and to any
extent, be or become invalid or unenforceable, the remainder of
this Amendment and the application of such provision to other
persons or circumstances shall not be affected thereby, but rather
shall be enforced to the greatest extent possible.

 


3.6           Ratification.
The provisions of the Purchase Agreement are hereby affirmed and
ratified, and remain in full force and effect, as herein
amended.

 


IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above

 


SELLER:


 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


 



By: /s/ Mark
Harding                          








Name:
Mark Harding


Title:
President


 


 


PURCHASER:


 


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


 


 



By: /s/ Linda M.
Purdy                      








Vice
President




 

2








 







THIRD AMENDMENT TO



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 



(Sky Ranch)


 


THIS
THIRD AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this "Amendment")
is made as of October 20, 2017 ("Effective
Date"), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company ("Seller"),
and RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware
corporation ("Purchaser").
Seller and Purchaser may be referred to collectively as the
"Parties."

 



R E C I T A L S

 


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

 


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

 



A G R E E M E N T

 


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

 


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

 


2.           Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to September 20,
2017.

 


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

 


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

 


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

 


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



 







 





 


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


 

 


 [SIGNATURE
PAGE FOLLOWS]

 




 

2








 






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

 



SELLER:

 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


 



By: /s/ Mark
Harding                      








Name:
Mark Harding


Title:
President


 


 


PURCHASER:


 


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


 


 



By: /s/ Linda M.
Purdy                       








Name:
Linda M. Purdy


Title:
Vice President


 


 


 




SIGNATURE
PAGE TO THIRD AMENDMENT








 







FOURTH AMENDMENT TO



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 



(Sky Ranch)


 


THIS
FOURTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this "Amendment")
is made as of September 20, 2017 ("Effective
Date"), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company ("Seller"),
and RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware
corporation ("Purchaser").
Seller and Purchaser may be referred to collectively as the
"Parties."

 



R E C I T A L S

 


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

 


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

 



A G R E E M E N T

 


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

 


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

 


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

 


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


 


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


 


5.           Final
Approval of Entitlements.


 



 







 






 



a. 

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






 



b. 

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






 


6.           Offsite
Infrastructure.

 



a. 

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





 



 

2







 





 



b. 

With respect to
the Alternative Service and the WWRF under Section 5(m) of the
Contract, Seller will meet and confer with Purchaser’s third
party consultants and reasonably necessary regarding their review
of and evaluation of such wastewater facilities.





 


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

 

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


 


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


 


(ix)           
At each Closing, the Seller shall certify to Purchaser that all
necessary offsite easements have been properly
granted.


 


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

 


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

 



(v) 

For the avoidance
of doubt, and notwithstanding anything to the contrary contained in
this Section 16: So long as representatives of Seller or its
affiliates hold the majority of the director positions on the
District board of directors and Purchaser is the holder of record
title to any of the Lots but in no event longer than 4 years after
the date of the First Closing: (1) Seller shall be obligated to
fund all operating deficits of the District; and (2) Seller shall
promptly upon receipt of any invoice from Purchaser for an amount
paid by Purchaser for that portion of the mill levy that is
assessed by the District for debt service, as reflected in the
service plan, that exceeds fifty (50) mills (the
“Mill
Levy Cap”). Notwithstanding the foregoing, the Mill
Levy Cap may be increased or decreased as to all taxable property
in the District to reflect any legislation implementing changes in
the ratio of actual valuation to assessed valuation for residential
real property, pursuant to Article X, Section 3(1)(b) of the
Colorado Constitution, so that, to the extent possible, the actual
tax revenues generated by the District imposed mill levy, as
adjusted, are neither diminished nor enhanced as a result of such
changes (“Gallagher
Adjustment”). For purposes of the foregoing, a change
in the ratio of actual valuation shall be deemed to be a change in
the method of calculating assessed valuation. This provision shall
survive the Closing and be enforceable by Purchaser by all legal
and equitable means, including without limitation specific
performance.





 



 

3







 





 


10.           Marketing
Sales Activities. From and after the First Closing,
Purchaser may construct and maintain upon portions of the
Development owned by Purchaser such facilities, activities, and
things as, in Purchaser’s reasonable opinion, may be
required, convenient, or incidental to the construction or sale of
Lots and single family homes located thereon. Such permitted
facilities, activities, and things shall include, without
limitation, business offices, signs, flags (whether hung from flag
poles or attached to a structure), model Lots, 
model homes, parking lots, sales offices, 
sales trailers, construction offices, construction trailers,
holding or sponsoring special events, and exterior lighting
features or displays, subject to compliance with all laws. This
provision shall survive closing.

 


11.           Transaction
Documents. The term “Transaction
Documents” shall collectively refer to the
following:

 



a. 

the Lot
Development Agreement;





 



b. 

the Joint
Improvement Memorandum;





 



c. 

the Construction
Disbursement Agreement;





 



d. 

the Tap Purchase
Agreement;





 



e. 

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





 



f. 

the Master
Covenants;





 



g. 

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





 



h. 

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





 


The
Contract is hereby amended to provide that Purchaser shall have up
to and including the date that is twenty-one (21) days following
the Effective Date of this Amendment (the “Transaction
Documents Negotiation Period”), to continue negotiating in
good faith with Seller in an effort to finalize and agree upon the
form of the Transaction Documents. If Purchaser and Seller are
unable to finalize and agree-upon the form of the Transaction
Documents prior to expiration of the Transaction Documents
Negotiation Period, Purchaser may terminate this Contract upon
written notice delivered to Seller within three (3) business days
following expiration of the Transaction Documents Negotiation
Period, in which event the Deposit shall be returned to Purchaser
and the Parties shall thereafter be relieved of all obligations
under the Contract (except those that expressly survive
termination). If Purchaser does not so terminate the Contract prior
to the deadline set forth above, Purchaser shall be deemed to have
waived such right to terminate, and the Parties shall proceed to
Closing subject to all other terms and conditions of the
Contract.



 

4







 





 


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

 


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

 


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

 


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

 


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


 

 


 [SIGNATURE
PAGE FOLLOWS]

 


 
5








 






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

 



SELLER:

 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


 



By: /s/ Mark
Harding          








Name:
Mark Harding


Title:
President


 


 


PURCHASER:


 


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


 


 



By: /s/ Linda M.
Purdy                 








Name:
Linda M. Purdy


Title:
Vice President


 


 






 






 



SCHEDULE 1

 



Legal Description of Takedown 1 Lots and Takedown 2
Lots

 


 

 


Takedown 1
Lots:

 


 

 


 

 


Takedown 2
Lots

 




 








 







FIFTH AMENDMENT TO



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 



(Sky Ranch)


 


THIS
FIFTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this "Amendment")
is made as of October 6, 2017 ("Effective
Date"), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company ("Seller"),
and RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware
corporation ("Purchaser").
Seller and Purchaser may be referred to collectively as the
"Parties."

 



R E C I T A L S

 


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

 


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

 



A G R E E M E N T

 


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

 


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

 


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

 


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


 


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


 


5.           Final
Approval of Entitlements.



 







 






 



a. 

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






 



b. 

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






 


6.           Offsite
Infrastructure.

 



a. 

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







 

2







 





 



b. 

With respect to the
Alternative Service and the WWRF under Section 5(b) of the
Contract, and the Water System Improvements, Wholesale Water, Sewer
and Irrigation Lines, and Drainage System Improvements referenced
in Exhibit A of the Construction Disbursement Agreement (together
with the Alternative Service and WWRF, collectively, the
“Water and Wastewater
Facilities,” Seller will meet and confer with
Purchaser’s third party consultants (the “Water Consultants”) as reasonably
necessary regarding their review of and evaluation of such Water
and Wastewater Facilities. If Purchaser determines, in its
reasonable discretion, based upon the professional opinion of the
Water Consultants, that the plans for the Water and Wastewater
Facilities are unacceptable, Purchaser, as its sole remedy, may
terminate this Contract upon written notice delivered to Seller
within fourteen (14) days after the Effective Date of this
Amendment, in which event the Deposit shall be returned to
Purchaser and the Parties shall thereafter be relieved of all
obligations under the Contract (except those that expressly survive
termination). If Purchaser does not so terminate the Contract prior
to the deadline set forth above, Purchaser shall be deemed to have
waived such right to terminate, and the Parties shall proceed to
Closing subject to all other terms and conditions of the
Contract.





 


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

 



(vii)           

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






 


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


 



(ix)           

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






 



(x)           

At each Closing,
Seller shall have applied for a grading permit for the Lots
acquired by Purchaser at such Closing and shall have taken all
actions required to obtain the issuance of such grading permit from
the applicable Authority.






 


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



 

3







 





 


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

 



(v) 

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





 



 

4







 





 


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

 


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

 



a. 

the Lot
Development Agreement;





 



b. 

the Joint
Improvement Memorandum;





 



c. 

the Construction
Disbursement Agreement;





 



d. 

the Tap Purchase
Agreement;





 



e. 

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





 



f. 

the Master
Covenants;





 



g. 

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





 



h. 

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





 


The
Contract is hereby amended to provide that Purchaser shall have up
to and including the date that is twenty-one (21) days following
the Effective Date of this Amendment (the “Project Documents
Negotiation Period”), to continue negotiating in
good faith with Seller in an effort to finalize and agree upon the
form of the Project Documents. If Purchaser and Seller are unable
to finalize and agree-upon the form of the Project Documents prior
to expiration of the Project Documents Negotiation Period,
Purchaser may terminate this Contract upon written notice delivered
to Seller within three (3) business days following expiration of
the Project Documents Negotiation Period, in which event the
Deposit shall be returned to Purchaser and the Parties shall
thereafter be relieved of all obligations under the Contract
(except those that expressly survive termination). If Purchaser
does not so terminate the Contract prior to the deadline set forth
above, Purchaser shall be deemed to have waived such right to
terminate, and the Parties shall proceed to Closing subject to all
other terms and conditions of the Contract.

 



 

5







 





 


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

 


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

 


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

 


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

 


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


 

 


 [SIGNATURE
PAGE FOLLOWS]

 




 

6








 






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

 



SELLER:

 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


 


By:
/s/ Mark
Harding


Name:
Mark Harding


Title:
President


 


 


PURCHASER:


 


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


 


 


By:
/s/ Linda M.
Purdy


Name:
Linda M. Purdy


Title:
Vice President


 




 








 






 



SCHEDULE 1

 



Legal Description of Takedown 1 Lots and Takedown 2
Lots

 


 

 


Takedown 1
Lots:

 


 

 


 

 


Takedown 2
Lots

 




 








 







SIXTH AMENDMENT TO



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 



(Sky Ranch)


 


THIS
SIXTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this "Amendment")
is made as of October 20, 2017 ("Effective
Date"), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company ("Seller"),
and RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware
corporation ("Purchaser").
Seller and Purchaser may be referred to collectively as the
"Parties."

 



R E C I T A L S

 


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

 


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

 



A G R E E M E N T

 


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

 


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

 


2. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to October 18,
2017.

 


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

 


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

 


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

 


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

 



 







 





 


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


 

 


 [SIGNATURE
PAGE FOLLOWS]

 

 

 

 

 

 

 

 

 

 

 

 




 

2








 






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

 



SELLER:

 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


 


By:
/s/ Mark
Harding


Name:
Mark Harding


Title:
President


 


 


PURCHASER:


 


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


 


 


By:
/s/ Linda M.
Purdy


Name:
Linda M. Purdy


Title:
Vice President


 


 


 


 


 




SIGNATURE
PAGE TO SIXTH AMENDMENT








 







SEVENTH AMENDMENT TO



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 



(Sky Ranch)


 


THIS
SEVENTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this "Amendment")
is made as of October 20, 2017 ("Effective
Date"), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company ("Seller"),
and RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware
corporation ("Purchaser").
Seller and Purchaser may be referred to collectively as the
"Parties."

 



R E C I T A L S

 


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

 


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

 



A G R E E M E N T

 


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

 


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

 


2. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to October 20,
2017.

 


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

 


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

 


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

 


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



 







 





 


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


 

 


 [SIGNATURE
PAGE FOLLOWS]


 


 


 


 


 


 

 




 

2








 






 


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

 



SELLER:

 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


 


By:
/s/ Mark
Harding


Name:
Mark Harding


Title:
President


 


 


PURCHASER:


 


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


 


 


By:
/s/ Linda M.
Purdy


Name:
Linda M. Purdy


Title:
Vice President


 


 


 


 


 




SIGNATURE
PAGE TO SEVENTH AMENDMENT








 







EIGHTH AMENDMENT TO



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 



(Sky Ranch)


 


THIS
EIGHTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this "Amendment")
is made as of October 20, 2017 ("Effective
Date"), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company ("Seller"),
and RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware
corporation ("Purchaser").
Seller and Purchaser may be referred to collectively as the
"Parties."

 



R E C I T A L S

 


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

 


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

 



A G R E E M E N T

 


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

 


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

 


2. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to October 31,
2017.

 


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

 


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

 


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

 


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



 







 





 


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


 

 


 [SIGNATURE
PAGE FOLLOWS]


 


 


 

 




 

2








 






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

 



SELLER:

 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


 


By:
/s/ Mark
Harding


Name:
Mark Harding


Title:
President


 


 


PURCHASER:


 


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


 


 


By:
/s/ Linda M.
Purdy


Name:
Linda M. Purdy


Title:
Vice President


 


 


 


 




SIGNATURE
PAGE TO EIGHTH AMENDMENT








 







NINETH AMENDMENT TO



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 



(Sky Ranch)


 


THIS
NINETH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this "Amendment")
is made as of October 20, 2017 ("Effective
Date"), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company ("Seller"),
and RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware
corporation ("Purchaser").
Seller and Purchaser may be referred to collectively as the
"Parties."

 



R E C I T A L S

 


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

 


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

 



A G R E E M E N T

 


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

 


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

 


2. Due
Diligence Period. The expiration of the Due Diligence
Period, as defined in Section 10(a) of the Contract, is hereby
extended to November 3,
2017.

 


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

 


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

 


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

 


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

 



 







 





 


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


 

 


 [SIGNATURE
PAGE FOLLOWS]

 

 

 

 

 

 

 

 




 

2








 






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

 



SELLER:

 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


 


By:
/s/ Mark
Harding


Name:
Mark Harding


Title:
President


 


 


PURCHASER:


 


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


 


 


By:
/s/ Linda M.
Purdy


Name:
Linda M. Purdy


Title:
Vice President


 




SIGNATURE
PAGE TO NINETH AMENDMENT








 







TENTH AMENDMENT TO



CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE


 



(Sky Ranch)


 


THIS
TENTH AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
(this "Amendment")
is made as of November 3, 2017 ("Effective
Date"), by and between PCY HOLDINGS, LLC, a Colorado limited
liability company ("Seller"),
and RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware
corporation ("Purchaser").
Seller and Purchaser may be referred to collectively as the
"Parties."

 



R E C I T A L S

 

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

 

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

 



A G R E E M E N T

 


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

 

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

 

2. Due Diligence Period. The
expiration of the Due Diligence Period, as defined in Section 10(a)
of the Contract, is hereby extended to November 10, 2017.

 

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

 

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

 

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

 

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

 



 







 





 

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


 

 


 [SIGNATURE
PAGE FOLLOWS]


 


 


 


 


 


 


 

 




 

2








 






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

 



SELLER:

 


PCY
HOLDINGS, LLC, a Colorado limited liability company


 


 


By:
/s/ Mark
Harding


Name:
Mark
Harding


Title:
President


 


 


PURCHASER:


 


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


 


 


By:
/s/ Linda M.
Purdy


Name:
Linda M.
Purdy


Title:
Vice
President


 




SIGNATURE
PAGE TO TENTH AMENDMENT