Eleventh Amendment to Contract for Purchase and Sale of Real Estate, dated November10, 2017, by and between PCY Holdings, LLC, and Richmond American Homes of Colorado, Inc

 

 

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

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:

 

 

 

 

 

 

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

 

 

 

(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.

 

 

 

 

 

 

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

10.           Districts.

 

 

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

 

 

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

 

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

 

 

 

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