HomeMy WebLinkAbout20010968 RESOLUTION
RE: APPROVE IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING
COLLATERAL FOR IMPROVEMENTS (PRIVATE ROAD MAINTENANCE) FOR
SOARING EAGLE RANCH PLANNED UNIT DEVELOPMENT, S #549, ACCEPT
FORM OF COLLATERAL AND AUTHORIZE CHAIR TO SIGN - SOARING HOME,
LLC
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, by Resolution dated October 18, 2000, a Site Specific Development Plan
and Planned Unit Development Subdivision, S#549, for Cullison Family Farms, LLC/George A.
Nelson Farm, Inc., do Everitt Companies, on the following described real estate, to-wit:
Part of Sections 28 and 33, Township 7 North,
Range 67 West of the 6th P.M., Weld County,
Colorado
WHEREAS, pursuant to certain Conditions of Approval in said Resolution, the Board
has been presented with an Improvements Agreement According to Policy Regarding Collateral
for Improvements (Private Road Maintenance) between the County of Weld, State of Colorado,
by and through the Board of County Commissioners of Weld County, and Soaring Home, LLC,
with terms and conditions being as stated in said agreement and unexecuted copies of the
Loan Agreement, and
WHEREAS, the Board has been presented with a Sample Letter of Credit from First
National Bank, 155 East Boardwalk, Fort Collins, Colorado 80525, indicating the amount of
$496,960.00 will be available as warranty collateral and that the County may, in addition, draw
upon the construction loan if the applicant defaults on the Improvements Agreement pending
approval of said Improvements Agreement described above, and
WHEREAS, after review, the Board deems it advisable to approve said agreement and
accept the Form of Collateral as stated above, copies of which are attached hereto and
incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Improvements Agreement According to Policy Regarding
Collateral for Improvements (Private Road Maintenance) between the County of Weld, State of
Colorado, by and through the Board of County Commissioners of Weld County, and Soaring
Home, LLC, be, and hereby is, approved.
2001-0968
c'1 (1C ' f 1�' PL1408
IMPROVEMENTS AGREEMENT - SOARING HOME, LLC
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 28th day of March, A.D., 2001.
BOARD OF COUNTY COMMISSIONERS
,o !�` WELD COUNTY, COLORADO
ATTEST: J2 4' / / /t .v . �J � CUSED DATE OF SIGNING (AYE)
//°° isb f/.�.^fre, _ _at l J. Geile, Chair
Weld County Clerk to the :r:r. ( l%
CC� / %r. •
%I"' ( ��.��
BY: G a? .X/ ;'' `.lenn Vaad, Pro-Trent
Deputy Clerk to the Board` ► ' `
William H. Jerke
AP O D AS T F RM: EXCUSED
/
nL?i*-ig
my ttorne ,
Robert D. Masden
2001-0968
PL1408
IMPROVEMENTS AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
(PRIVATE ROAD MAINTENANCE)
THIS AGREEMENT,made and entered into this a' day of 2001 by and
between the County of Weld, State of Colorado, acting through its Bo of County Commissioners,
hereinafter called "County,"and Soaring Home, LLC, a Colorado Limited Liability Company,hereinafter
called "Applicant."
WITNESSETH:
WHEREAS, Applicant is the owner of, or has a controlling interest in the following described
property in the County of Weld, Colorado:
(See Exhibit C—Legal Description)
WHEREAS, a Final Subdivision/Planned Unit Development (PUD) plat of said property, to be
known as Soaring Eagle Ranch has been submitted to the County for approval, and
WHEREAS, relevant Weld County Ordinances provide that no Subdivision Final Plat, Planned
Unit Development Final Plat, or Site Plan shall be approved by the County until the Applicant has
submitted a Subdivision Improvement Agreement guaranteeing the construction of the public
improvements shown on plans, plats and supporting documents of the Subdivision Final Plat, Planned
Unit Development Final Plat, or Site Plan, which improvements, along with a time schedule for
completion, are listed in Exhibits"A"and"B"of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the acceptance and
approval of said Final Plat, the parties hereto promise, covenant and agree as follows:
1.0 Engineering Services: Applicant shall furnish, at its own expense, all engineering
services in connection with the design and construction of the Subdivision or Planned
Unit Development improvements listed on Exhibit "A," which is attached hereto and
incorporated herein by reference.
1.1 The required engineering services shall be performed by a Professional Engineer
and Land Surveyor registered in the State of Colorado, and shall conform to the
standards and criteria established by the County for public improvements.
1.2 The required engineering services shall consist of,but not be limited to, surveys,
designs, plans and profiles, estimates, construction supervision, and the
submission of necessary documents to the County.
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1.3 Applicant shall furnish drawings and cost estimates for roads within the
Subdivision or Planned Unit Development to the County for approval prior to the
letting of any construction contract. Applicant shall furnish one set of
reproducible "as-built" drawings and a final statement of construction cost to the
County.
2.0 Rights-of-Way and Easements: Before commencing the construction of any
improvements herein agreed upon, Applicant shall acquire, at its own expense, good and
sufficient rights-of-way and easements on all lands and facilities traversed by the
proposed improvements.
3.0 Construction: Applicant shall furnish and install, at its own expense, the Subdivision or
Planned Unit Development improvements listed on Exhibit"A,"which is attached hereto
and incorporated herein by reference, according to the construction schedule set out in
Exhibit"B"which is also attached hereto and incorporated herein by reference.
3.1 Said construction shall be in strict conformance to the plans and drawings
approved by the County and the specifications adopted by the County for such
public improvements.
3.2 Applicant shall employ, at its own expense, a qualified testing company
previously approved by the County to perform all testing of materials or
construction that is required by the County; and shall furnish copies of test results
to the County.
3.3 At all times during said construction, the County shall have the right to test and
inspect, or to require testing and inspection of material and work at Applicant's
expense. Any material or work not conforming to the approved plans and
specifications shall be removed and replaced to the satisfaction of the County at
Applicant's expense.
3.4 Applicant shall furnish proof that proper arrangements have been made for the
installation of sanitary sewer or septic systems, water, gas, electric and telephone
services.
3.5 Said Subdivision or Planned Unit Development improvements shall be
completed, according to the terms of this Agreement, within the construction
schedule appearing in Exhibit "B." The Board of County Commissioners, at its
option, may grant an extension of the time of completion shown on Exhibit "B"
upon application by the Applicant subject to the terms of Section 6 herein.
4.0 Release of Liability: Applicant shall indemnify and hold harmless the County from any
and all liability loss and damage County may suffer as a result of all suits, actions or
claims of every nature and description caused by, arising from, or on account of said
design and construction of improvements, and pay any and all judgments rendered
against the County on account of any such suit, action or claim, together with all
reasonable expenses and attorney fees incurred by County in defending such suit, action
or claim whether the liability, loss or damage is caused by, or arises out of the negligence
of the County or its officers, agents,employees, or otherwise except for the liability, loss,
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or damage arising from the intentional torts or the gross negligence of the County or its
employees while acting within the scope of their employment. All contractors and other
employees engaged in construction of the improvements shall maintain adequate worker's
compensation insurance and public liability insurance coverage,and shall operate in strict
accordance with the laws and regulations of the State of Colorado governing occupational
safety and health.
(THERE IS NO SECTION 5)
6.0 Approval of Streets by the County: Upon compliance with the following procedures by
the Applicant, streets within a Subdivision or Planned Unit Development may be
approved by the County as public roads and will be maintained and repaired by a
Homeowners Association or, in its absence, the owners of lots within the Subdivision or
Planned Unit Development.
6.1 If desired by the County, portions of street improvements may be placed in
service when completed according to the schedule shown on Exhibit "B," but
such use and operation shall not constitute an approval of said portions.
6.2 County may, at its option, issue building permits for construction on lots for
which street improvements detailed herein have been started but not completed
as shown on Exhibit "B," and may continue to issue building permits so long as
the progress of work on the Subdivision or Planned Unit Development
improvements in that phase of the development is satisfactory to the County; and
all terms of this Agreement have been faithfully kept by Applicant.
6.3 Upon completion of the construction of streets within a Subdivision or Planned
Unit Development and the filing of a Statement of Substantial Compliance, the
applicant(s) may request in writing that the County Engineer inspect its streets
and recommend that the Board of County Commissioners partially approve them.
Not sooner than nine months after partial approval, the County Engineer shall,
upon request by the applicant, inspect the subject streets, and notify the
applicant(s) of any deficiencies. The County Engineer shall reinspect the streets
after notification from the applicant(s)that any deficiencies have been corrected.
If the County Engineer finds that the streets are constructed according to County
standards, he or she shall recommend full approval. Upon a receipt of a positive
unqualified recommendation from the County Engineer for approval of streets
within the development, the Board of County Commissioners shall fully approve
said streets as public but with private pay.
7.0 General Requirements for Collateral:
7.1 The value of all collateral submitted to Weld County must be equivalent to One-
Hundred percent (100%) of the value of the improvements as shown in this
Agreement. Prior to Final Plat approval,the applicant shall indicate which of the
five types of collateral preferred to be utilized to secure the improvements subject
to final approval by the Board of County Commissioners and the execution of
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this Agreement. Acceptable collateral shall be submitted and the plat recorded
within six (6) months of the Final Plat approval. If acceptable collateral has not
been submitted within six (6) months then the Final Plat approval and all
preliminary approvals shall automatically expire. Applicant may request that the
County extend the Final Plat approval provided the cost estimates are updated
and the development plans are revised to comply with all current County
standards,policies and regulations. The improvements shall be completed within
one (I) year after the Final Plat approval (not one year after acceptable
collateral is submitted) unless the applicant(s) requests that this Agreement be
renewed at least thirty (30) days prior to its expiration and further provides that
cost estimates for the remaining improvements are updated and collateral is
provided in the amount of One-Hundred percent (100%) of the value of the
improvements remaining to be completed. If improvements are not completed
and the agreement not renewed within these time frames, the County, at its
discretion, may make demand on all or a portion of the collateral and take steps
to see that the improvements are made.
7.2 The applicant may choose to provide for a phased development by means of
designating filings of a Planned Unit Development Final Plat or Subdivision
Final Plat. The applicant would need only to provide collateral for the
improvements in each filing as approved. The County will place restrictions on
those portions of the property that are not covered by collateral which will
prohibit the conveyance of the property or the issuance of building permits until
collateral is provided or until improvements are in place and approved pursuant
to the requirements for a Request for Release of Collateral.
7.3 The applicant intends to develop in accordance with Exhibits "A"and "B."
8.0 Improvements Guarantee: The collateral listed below is acceptable to Weld County
subject to final approval by the Board of County Commissioners.
8.1.1 A Development Loan consisting of an irrevocable letter or line of credit, or a
combination of the two from a federal or state licensed financial institution on a form
approved by Weld County. The Development Loan shall specify at least the following:
8.1.2 The Development Loan shall be in an amount that is not less than 115% percent
cost of the public improvements as set forth in Exhibit "A" and Exhibit"B".
8.1.3 The Development Loan shall provide for payment on demand to Weld County if
the developer has not performed the obligations specified in the Improvements
Agreement. Demand shall be in the form of a certified copy of a Resolution of the Board
of County Commissioners finding that the developer has not performed the obligations
specified in the Improvements Agreement.
8.1.4 The applicant may draw from the Development Loan in accordance with the
provisions of this Agreement.
8.1.5 The issuer of the Development Loan shall guarantee that at all times the
unreleased portion of the Development Loan shall be equal to 115%of the estimated cost
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of completing uncompleted portions of the required improvements, based on inspections
of the development by the County. In no case shall the disbursement for an improvement
item exceed the cost estimate of this Improvements Agreement.
8.1.6 The development loan shall specify that fifteen percent(15%)of the total cost of
the public improvement amount can not be drawn upon and will be available to the
County until released by the County. The amounts will be considered warranty collateral
and will be proportionally allocated to the public improvements as listed in Exhibit "A"
and Exhibit "B".
8.1.7 The Development Loan shall specify the date of proposed expiration which shall
be either the date of release by Weld County of the final fifteen percent(15%), or one(1)
year from the date of the final plat approval, whichever occurs first. The Development
Loan shall stipulate that, in any event, it shall remain in full force and effect until after
the Board received sixty (60) days written notice from the issuer of the Development
Loan of its pending expiration. Said notice shall be sent by certified mail to the Clerk to
the Board of the County Commissioners.
8.1.8 Draws shall be made under the Development Loan on a form agreeable to the
County which may include certification of the completion improvements by an inspector
approved by the County. Draw requests may be made in monthly intervals.
9.0 Request for Release of Collateral: Prior to release of collateral for the entire project or
for a portion of the project by Weld County, the Applicant must present a Statement of
Substantial Compliance from an Engineer registered in Colorado that the project or a
portion of the project has been completed in substantial compliance with approved plans
and specifications documenting the following:
9.1 The Engineer or his representative has made regular on-site inspections during
the course of construction and the construction plans utilized are the same as
those approved by Weld County.
9.2 Test results must be submitted for all phases of this project as per Colorado
Department of Transportation Schedule for minimum materials sampling,testing
and inspections found in the Colorado Department of Transportation (CDOT)
Materials Manual.
9.3 The Engineer shall certify that the project is in substantial compliance with the
plans and specifications as approved, or that any material deviations have
received prior approval from the County Engineer prior to the release of
collateral. "As-Built"plans shall be submitted to the Weld County Engineer prior
to issuance of any Certificate of Occupancy on any new home in the
development.
9.4 The Statements of Substantial Compliance must be accompanied, if appropriate,
by a letter of acceptance of maintenance and responsibility by the appropriate
utility company, special district or town for any utilities.
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9.5 A letter must be submitted from the appropriate Fire Authority indicating the fire
hydrants are in place in accordance with the approved plans. The letter shall
indicate if the fire hydrants are operational and state the results of fire flow tests.
9.6 The requirements in paragraphs 9.0 through 9.5 shall be noted on the final
construction plans.
9.7 Following the submittal of the Statement of Substantial Compliance and
recommendation of approval of the streets by the County, the applicant(s) may
request release of the collateral for the project or portion of the project by the
Board. This action will be taken at a regularly scheduled public meeting of the
Board.
9.8 The request for release of collateral shall be accompanied by "Warranty
Collateral" in the amount of fifteen percent (15%) of the value of the
improvements as shown in this Agreement excluding improvements fully
accepted for maintenance by the responsible governmental entity, special district
or utility company.
9.9 The warranty collateral shall be released to the applicant upon final approval by
the Board of County Commissioners, which shall occur as soon as possible
following the expiration of the one-year warranty period. Said warranty period
shall be for one year from date of final subdivision improvement acceptance by
the County, as it applies to each phase of improvements.
10.0 Successors and Assigns: This Agreement shall be binding upon the heirs, executors,
personal representatives, successors and assigns of the Applicant, and upon recording by
the County, shall be deemed a covenant running with the land herein described,and shall
be binding upon the successors in ownership of said land.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the
day and year first above written.
APPLICANT: SOARING HOME,LLC,A olorado Limited Liability Company
By: Everitt Enterprise,Inc.,
BY:
Da veritt,President
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Subscribed and sworn to before me this day of � 2001 by David Everitt,President
of Everitt Enterprises, Inc.,Manager of Soaring Home, LL
My Commission expires:
otary blic
fitiz
t.O/ TARY I
E BOARD OF COUNTY COMMISSIONERS
_
�iF WELD CO TY,COLORADO
¢s t' ah.' M.J. eile,C air (03/28/2001)
Glenn Vaad, Pro-Tem
ATTEST: &IN—/ - lam"
1/4 WiliHrjrc eel/
Weld County Clerk to th ,�# �, �] /)
6! � rQ��QY Davi E. Long
Deputy Clerk to the Bo!t ( /N14 Robert . Masden
--APPROA ST FORM:
C �
County Attorney
SECTIONS 3, 6, 7, 8, 9,and 10 RATIFIED
BY ISSUER OF CONSTRUCTION
LOAN LE 11 ER/LINE OF CREDIT
FIRST NATIONAL BANK
BY C JUL
`
Title FK
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EXHIBIT "A"
Improvements Agreement
Name of Subdivision or Planned Unit Development: SOARING EAGLE RANCH. PUD
Filing: n/a
Location: Part of Sections 28 and 33, T7N, R67W of 6th P.M., Weld County, CO
Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout
this Subdivision or Planned Unit Development the following improvements. (Leave spaces blank
where they do not apply.)
CATEGORY
Site Grading. 816,700 140,006 210,009 :-
Potable Water: ----
A) Lines 234,280 103,338 126,270 ".
B) Hydrants 44,875 39,000 32,800
C) Fittings&Service 38,045 29,895 35,665.
Irrigation System' ----
A) Pump Station 180,000--4
B) Lines 63500 67212 82,161
C) Services&Fittings 48,128 54,144 66,176, -.?
•iM r ' r.. ----'
A) Culverts 55041 11,795 11,795"
B) Wiers 3,850 4,950 0 4
C) Erosion Control 34,491 5913 8,869
Streets:
A) Grading 52,179 4,560 6,840 `'4;
B) Base 241,389 153,079 178591•
;
C) Paving 185,073 109,132 127320'
D) Striping&Control 20,100 2,000 2,000
Amenities.
A) Landscaping 186,500 0 0•
B) Open Space Trail 56,914 0 30,646
C) Roadside Trail 11,112 11,112 11,112r
D) Open Space 197,200 42,650 25350
E) Fencing 61,875 0 01
F) Street Signs 2,475 550 825
- . ,rcr I'kflifhiMII 956.429" __. . . .
Utilities By Providers' --_-,
A) Electric 98500 69,372 88,628
B) Telephone 32,000 36,000 44,000'
C) Gas 32,000 36,000 44,000'
TOTAL ESTIMATE r ' T : 2,696,227 920,708 1,133,057,
The above improvements shall be constructed in accordance with all County requirements and specifications,and
conformance with this provision shall be determined solely by Weld County,or its duly authorized agent. Said
improvements shall be completed according to the construction schedule set out in Exhibit"B."
APPLICANT:
EVERIT1'ENTERPRISES, INC.,A Colorado Corporation DATE: 3- ) 2 O
By: Stanley K. Everitt,Vice President c:soaring eagle/cost estimates/impr agt Ex A
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EXHIBIT "A" - NOTES
Improvements Agreement
Soaring Eagle Ranch, PUD
TOTAL PUBLIC IMPROVEMENTS COST
FOR PHASES I &II:
(Includes all costs except Utilities) $3,313,063
x 115%
TOTAL DEVELOPMENT LOAN REQUIRED
FOR PHASES I& II: $3,810,023
(Includes 15%Warranty amount)
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EXHIBIT "B"
Improvements Schedule
Name of Subdivision or Planned Unit Development: SOARING EAGLE RANCH. PUD
Filing: n/a
Location: Part of Sections 28 and 33, T7N, R67W of 6th P.M., Weld County, CO
Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout
this Subdivision or Planned Unit Development the following improvements.
All improvements for phases 1 and 2 shall be completed within one (1)year from the date of approval of
the final plat. The completion date for construction of phase 3 has not been determined.
Construction of the improvements listed in Exhibit"A"shall be completed as follows:
Time in Months Mar.01 Apr.01 May.01 Jun.01 Jul.01 Aug.01 Sep.01 Oct.01 Nov.01 Dec.01 Jan.01 Feb.01I
CATEGORY
Site Grading•
Potable Water: - --
A) Lines
B) Hydrants
C) Fittings&Service
Irrigation System•
A) Pump Station
B) Lines
C) Services&Fittings
Storm Drainaae:
A) Culverts
B) Wiers
C) Erosion Control
Streets.
A) Grading
B) Base
C) Paving
D) Striping&Control
Amenities:
A) Landscaping
B) Open Space Trail
C) Roadside Trail
D) Open Space
E) Fencing
F) Street Signs
Total Public Improvements
Subiect to Warranty-
Utilities By Providers-
A) Electric
B) Telephone
C) Gas
The County,at its option,and upon the request of the Applicant,may grant an extension of time for completion for any
particular improvements shown above,upon a showing by the Applicant that the above schedule cannot be met.
APPLICANT:
SOARING HOME,(LLLC�,a Colorado Limited Liability Company Date: 3—�� - 1O(
By: Stan ey K. Everitt,Vice President of Everitt Enterprises, Inc., Manager
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EXHIBIT "C"
to
Improvements Agreement
LEGAL DESCRIPTION
FOR SOARING EAGLE RANCH
All of Soaring Eagle Ranch PUD, according to the Final Plat recorded January 17, 2001
at Reception No. 2819584 , Weld County, Colorado
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Boardwalk Office
First National WE Department
P.O.Box 272500
For Collins,CO 80527-2500
Fort
Bank 970 282.9680
Date: April 6, 2001
Weld County
915 10th Street
Greeley, Co 80634
Dear Sirs:
We hereby establish, at the request and for the account of Soaring Eagle, LLC, a
Colorado Limited Liability Company in your favor as beneficiary, our Irrevocable Letter
of Credit No. 3196, in the amount of Four Hundred Ninety Six Thousand Nine Hundred
Sixty Dollars and no/100 ($496,960.00) (as more fully described below), effective
immediately and expiring at the close of banking business on April 6, 2003, at our office
at 155 E. Boardwalk, Fort Collins, Co 80525.
This Letter of Credit is intended for the Soaring Home, LLC, A Colorado Limited
Liability Company Development Project ("Development Project") for the assurance of
the completion of the construction and the maintenance and repair of the public
infrastructure in connection with the aforesaid development project and its associated
development agreement and development construction permit. Funds under this Letter of
Credit are available to you for one or more drawings prior to the close of business on
April 6, 2003, against sight drafts in an aggregate cumulative amount not to exceed
$496,960.00 , dated the date of presentment, drawn on our office referred to above,
referring thereon to the number of this Letter of Credit and accompanied by your written
certificate signed by you and acknowledged as therein provided in the form of Exhibit 1
hereto.
Presentation of such draft and certificate shall be made at our office referred to above.
Upon the earlier of(i) our honoring your draft(s)totaling $496,960.00 in the aggregate
presented on or before this Letter of Credit expires pursuant to the terms herein or(ii) the
surrender to us by you of this Letter of Credit for cancellation, this Letter of Credit shall
automatically terminate.
This letter of credit shall be subject to the Uniform Commercial Code as in effect in the
State of Colorado, and ,to the extent not inconsistent with the terms of this Letter of
Credit and the Uniform Commercial code,the Uniform Customs and Practice for
Documentary Credits, 1993 revision, ICC publication number 500.
This Letter of Credit is not transferable.
instrument or agreement referred to herein, except only the certificate and draft(s)
referred to herein; and any such reference shall not be deemed to incorporate herein by
reference any document, instrument or agreement except for such certificate or draft(s).
'ncerely,
a L.
First Natio B
STATE OF COLORADO)
COUNTY OF LARIMER)
•
1
Scribed and sworg to before me this ' day of ,( 0 Jr.,( � , akt(
by l o n na L (.0 to , as Vice President, First Natio l Bank.
Witness my hand and official seal.
_ ''qNN`...` N tary Public
M Ji-- .,)i.-s: U 5- I `n I -03
•
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My Commission Expires 05/19/20C3
EXHIBIT 1
CERTIFICATE
The County of Weld hereby certifies as follows with respect to the certain Irrevocable
Letter of Credit No. 3196 dated April 6, 2001 established in favor of the County of
Weld, Colorado (the "Letter of Credit"):
(a) He(She) is authorized to execute this Certificate of behalf of the County of
Weld;
(b) The applicant/developer is in default under the terms of the development
Agreement and/or the development construction permit.
(c) The sum of$ ,which is the amount of the draft presented with
This Certificate, is the amount currently due to the County of Weld from
(d) The amount of the accompanying draft together with all previous draws
Under the Letter of Credit do not exceed in the aggregate $ ; and
(e) The Letter of Credit has not expired.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of behalf
of the County of Weld, this day of
THE COUNTY OF WELD, COLORADO
By:
Title
STATE OF COLORADO)
COUNTY OF WELD)
Subscribed and sworn to before me this day of , by
, as authorized officer of the County of Weld,
Colorado.
Witness my hand and official seal.
Notary Public
My Commission Expires:
EXHIBIT 2
Amendment to Letter of Credit#
The County of Weld certifies that the person signing below is authorized to execute this
amendment on behalf of the City of Fort Collins, and further certifies with respect to the
provisions contained in the Development Construction Permit dated
and/or the Development Agreement dated , between the County of Weld
(Beneficiary) and (Developer),the following:
(Check applicable boxes.)
The Letter of Credit is to be reduced to $
The maturity date is revised to be
In witness whereof,the undersigned has executed this certificate on behalf of the City of
Fort Collins this day of
COUNTY OF WELD
By:
Attest:
County Clerk
STATE OF COLORADO)
COUNTY OF WELD)
Subscribed and sworn to before me this day of
, by , as
authorized officer of the County of Weld.
Witness my hand and official seal.
Notary Public
My Commission Expires: -
DISBURSEMENT REQUEST AND AUTHORIZATION
pdnc!PalE. Loan tfiate Maturity' 40an' No COI 4,001110001 AD o:Uflt ( 1100' tMsl
$3,$10,023 O3- 1-2001 .,.0 0-2003 a 1100 1 ;a D`C61
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item.
Borrower: SOARING HOME, LLC, A COLORADO LIMITED Lender: First National Bank
LIABILITY COMPANY (TIN: 84-1575248) Real Estate/Construction Department
3030 SOUTH COLLEGE 165 E.Boardwalk
FORT COLLINS,CO 80525 Fort Collins,CO 80525
LOAN TYPE. This Is a Variable Rate (at Prime according to the Wall Street Journal, making an Initial rate of 8.000%), Non-Revolving Line of Credit
Loan to a Limited Liability Company for$3,810,023.00 due on March 30,2003.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is for:
0 Personal,Family,or Household Purposes or Personal Investment
EBusiness(Including Real Estate Investment).
SPECIFIC PURPOSE. The specific purpose of this loan Is: ACQUISITION AND DEVELOPMENT OF PROPERTY.
DISBURSEMENT INSTRUCTIONS. Borrower understands that no loan proceeds will be disbursed until all of Lender's conditions for making the loan
have been satisfied. Please disburse the loan proceeds of$3,810,023.00 as follows:
Amount paid to others on Borrower's behalf: $3,810,023.00
$3,810,023.00 Funds available to be drawn.
Note Principal: $3,810,023.00
CHARGES PAID IN CASH. Borrower has paid or will pay In cash as agreed the following charges:
Prepaid Finance Charges Paid in Cash: $28,575.17
$28,575.17 Loan Fees
Other Charges Paid in Cash: $7,503.00
$50.00 Recording DOT, UCC&Disburser's Notice
$3,703.00 Title Insurance
$3,500.00 Appraisal
$250.00 Appraisal Review
Total Charges Paid in Cash: $38,078.17
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS AND WARRANTS TO LENDER THAT THE
INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN
BORROWER'S FINANCIAL CONDITION AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO LENDER. THIS
AUTHORIZATION IS DATED MARCH 30,2001.
BORROWER:
SOARING HOME,LLC,A COLORADO LIMITED LIABILITY COMPANY
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":•��i ';'I�� iiii�ii !Ill'tliPi61'1i;��tij? iil!yi �liai;!liiilii�lii�illri
EV�TFITI ENTEgpbl$�S, INLl; A COLb4tAbb Ci31RPORATION, MANAGING MEMBER BY STANLEY K. EVERITT AS EXECUTIVE VICE
PRESIDENT
BYDOUBLE E&G;&NCJ''COLORADO'conporiA ioN,MEMBER BY DAVID EVERITT AS PRESIDENT
Variable Rate. Line of Credit. LASER PRO,Reg.U.S.Pat.&T.M.Off.,Ver.3.28c(c)2001 CFI ProServices,Inc. All rights reserved.fCO-120 E3.28 F3.28 SOARING.LN C20.OVLI
a+ r
PROMISSORY NOTE
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53 310,03040 *3 2001 03"+`0403 ,i '4,100 _ ' [ 161
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or hem.
Borrower: SOARING HOME, LLC, A COLORADO LIMITED Lender: First National Bank
LIABILITY COMPANY (TIN: 84-1575248) Real Estate/Construction Department
3030 SOUTH COLLEGE 155 E.Boardwalk
FORT COLLINS,CO 80525 Fort Collins,CO 80525
Principal Amount: $3,810,023.00 Initial Rate: 8.000% Date of Note: March 30, 2001
PROMISE TO PAY. SOARING HOME, at,A COLORADO LIMITED LIABILITY COMPANY("Borrower")promises to pay to First National Bank
("Lender"), or order, In lawful money of the United States of America, the principal amount of Three Million Eight Hundred Ten Thousand
Twenty Three &00/100 Dollars($3,810,023.00)or so much as may be outstanding,together with Interest on the unpaid outstanding principal
balance of each advance. Interest shall be calculated from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal plus all accrued unpaid interest on March 30, 2003. In
addition,Borrower will pay regular monthly payments of accrued unpaid interest beginning May 1,2001,and all subsequent Interest payments
are due on the same day of each month after that The annual interest rate for this Note Is computed on a 365/360 basis; that is, by applying the
ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the
principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in
writing. Unless otherwise agreed or required by applicable law, payments will be applied first to accrued unpaid Interest, then to principal, and any
remaining amount to any unpaid collection costs and late charges.
VARIABLE INTEREST RATE. The Interest rate on this Note is subject to change from time to time based on changes in an Independent index which
is the Prime according to the Wall Street Journal(the"Index"). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index
becomes unavailable during the term of this loan, Lender may designate a substitute index after notice to Borrower. Lender will tell Borrower the
current Index rate upon Borrower's request. Borrower understands that Lender may make loans based on other rates as well. The interest rate change
will not occur more often than each day. The index currently is 8.000% per annum. The Interest rate to be applied to the unpaid principal
balance of this Note will be at a rate equal to the index,resulting in an initial rate of 8.000%per annum. NOTICE: Under no circumstances will
the interest rate on this Note be more than the maximum rate allowed by applicable law.
PREPAYMENT; MINIMUM INTEREST CHARGE. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date
of the loan and will not be subject to refund upon early payment(whether voluntary or as a result of default),except as otherwise required by law. In
any event,even upon full prepayment of this Note,Borrower understands that Lender Is entitled to a minimum interest charge of$100.00. Other than
Borrower's obligation to pay any minimum interest charge, Borrower may pay without penalty all or a portion of the amount owed earlier than it is due.
Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments of accrued
unpaid interest. Rather,they will reduce the principal balance due.
DEFAULT. Borrower will be in default if any of the following happens: (a) Borrower fails to make any payment when due. (b) Borrower breaks any
promise Borrower has made to Lender, or Borrower falls to comply with or to perform when due any other term, obligation, covenant, or condition
contained in this Note or any agreement related to this Note,or in any other agreement or loan Borrower has with Lender. (c) Borrower defaults under
any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that
may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the
Related Documents. (d)Any representation or statement made or furnished to Lender by Borrower or on Borrower's behalf is false or misleading in any
material respect either now or at the time made or furnished. (e)Borrower dissolves(regardless of whether election to continue is made), any member
withdraws from Borrower, any member dies,or any of the members or Borrower becomes insolvent, a receiver Is appointed for any part of Borrower's
property, Borrower makes an assignment for the benefit of creditors,or any proceeding is commenced either by Borrower or against Borrower under
any bankruptcy or insolvency laws. (f)Any creditor tries to take any of Borrower's property on or in which Lender has a lien or security interest. This
includes a garnishment of any of Borrower's accounts with Lender. (g)Any guarantor dies or any of the other events described in this default section
occurs with respect to any guarantor of this Note. (h) A material adverse change occurs in Borrower's financial condition, or Lender believes the
prospect of payment or performance of the Indebtedness is Impaired. (I)Lender in good faith deems itself insecure.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal balance on this Note and all accrued unpaid Interest Immediately
due,without notice,and then Borrower will pay that amount. Upon default, Including failure to pay upon final maturity,Lender, at its option,may also,if
permitted under applicable law, increase the variable Interest rate on this Note to 4.000 percentage points over the Index. The interest rate will not
exceed the maximum rate permitted by applicable law. Lender may hire or pay someone else to help collect this Note if Borrower does not pay.
Borrower also will pay Lender that amount. This includes,subject to any limits under applicable law, Lender's legal expenses whether or not there is a
lawsuit and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or Injunction), appeals, and any
anticipated post-judgment collection services. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums
provided by law. This Note has been delivered to Lender and accepted by Lender in the State of Colorado. If there is a lawsuit, Borrower
agrees upon Lender's request to submit to the Jurisdiction of the courts of Larimer County, the State of Colorado. Lender and Borrower
hereby waive the right to any Jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other.
This Note shall be governed by and construed in accordance with the laws of the State of Colorado.
CONFESSION OF JUDGMENT. Borrower hereby irrevocably authorizes and empowers any attorney-at-law to appear In any court of record and to
confess judgment against Borrower for the unpaid amount of this Note as evidenced by an affidavit signed by an officer of Lender setting forth the
amount then due, plus costs of suit, and to release all errors, and waive all rights of appeal. If a copy of this Note, verified by an affidavit, shall have
been filed in the proceeding, it will not be necessary to file the original as a warrant of attorney. Borrower waives the right to any stay of execution and
the benefit of all exemption laws now or hereafter in effect. No single exercise of the foregoing warrant and power to confess judgment will be deemed
to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable, or void; but the power will continue
undiminished and may be exercised from time to time as Lender may elect until all amounts owing on this Note have been paid in full.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right,title and interest in and to, Borrower's accounts with Lender(whether checking, savings,or some other account), including
without limitation all accounts held jointly with someone else and all accounts Borrower may open In the future, excluding however all IRA and Keogh
accounts, and all trust accounts for which the grant of a security Interest would be prohibited by law. Borrower authorizes Lender, to the extent
permitted by applicable law,to charge or setoff all sums owing on this Note against any and all such accounts.
COLLATERAL This Note is secured by A DEED OF TRUST DATED MARCH 30,2001 IN THE AMOUNT OF$3,810,023.00 FOR LOTS 1-69,SOARING
EAGLE RANCH P.U.D. FINAL PLAT,A SUBDIVISION OF THE COUNTY OF WELD,STATE OF COLORADO.
LINE OF CREDIT. This Note evidences a straight line of credit. Once the total amount of principal has been advanced, Borrower is not entitled to
further loan advances. Advances under this Note may be requested orally by Borrower or by an authorized person. All oral requests shall be
confirmed in writing on the day of the request. All communications,instructions,or directions by telephone or otherwise to Lender are to be directed to
Lender's office shown above. The following party or parties are authorized to request advances under the line of credit until Lender receives from
Borrower at Lender's address shown above written notice of revocation of their authority: EVERITT ENTERPRISES, INC., A COLORADO
CORPORATION, MEMBER BY STANLEY K. EVERITT AS EXEUTIVE VICE PRESIDENT; and DOUBLE E &DOUBLE E & G, INC., A COLORADO
CORPORATION, MEMBER BY DAVID EVERITT AS PRESIDENT. Borrower agrees to be liable for all sums either: (a) advanced In accordance with
the instructions of an authorized person or (b)credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this Note
at any time may be evidenced by endorsements on this Note or by Lender's Internal records,including daily computer print-outs. Lender will have no
obligation to advance funds under this Note If: (a) Borrower or any guarantor Is In default under the terms of this Note or any agreement that Borrower
or any guarantor has with Lender, including any agreement made in connection with the signing of this Note; (b) Borrower or any guarantor ceases
doing business or is insolvent; (c)any guarantor seeks,claims or otherwise attempts to limit,modify or revoke such guarantor's guarantee of this Note
or any other loan with Lender; (d) Borrower has applied funds provided pursuant to this Note for purposes other than those authorized by Lender; or
(e)Lender in good faith deems itself insecure under this Note or any other agreement between Lender and Borrower.
APPRAISAL AT ANY TIME AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT, OR UPON THE BANK'S REASONABLE BELIEF THAT THE
MARKET VALUE OF THE PROPERTY HAS DECLINED OR THAT THE PROSPECT OF REPAYMENT OF THE LOAN ON A TIMELY BASIS IS
IMPAIRED, LENDER MAY OBTAIN, AT BORROWER'S EXPENSE, AN APPRAISAL AND APPRAISAL OF THE PROPERTY TO BE PREPARED BY
INDEPENDENT APPRAISERS, AND IN FORM AND SUBSTANCE, SATISFACTORY TO LENDER. AT LENDER'S OPTION THE COST OF SAID
APPRAISAL AND APPRAISAL REVIEWS MAY BE DEEMED TO BE AN ADVANCE OF LOAN PROCEEDS TO BE ADDED TO THE PRINCIPAL
BALANCE OF THE NOTE. BORROWER FURTHER AGREES TO PROVIDE THE LENDER, OR ANY INDEPENDENT APPRAISERS APPOINTED BY
THE LENDER,ANY AND ALL INFORMATION REQUIRED TO PREPARE SAID APPRAISAL AND APPRAISAL REVIEW.
FINANCIAL REPORTING. FINANCIAL REPORTING WILL BE REQUIRED ON THE BORROWER AND ON THE GUARANTORS ANNUALLY. THE
FINANCIAL INFORMATION MUST INCLUDE A BALANCE SHEET, INCOME STATEMENT AND TAX RETURN INFORMATION. IN ADDITION, THE
03-30-2001 PROMISSORY NOTE Page 2
Loan No (Continued)
BORROWER AGREES TO PROVIDE TO THE BANK FINANCIAL INFORMATION ON THE BORROWER AND GUARANTORS AT OTHER TIMES
DURING THE TERM OF THE LOAN WHEN THE BANK REQUESTS THAT INFORMATION.
RELEASE PROVISIONS. LOTS WILL BE RELEASED AT A PRO-RATA BASIS AT 120% OF $3,810,023.00 WHICH IS EQUAL TO $66,260.00 PER
LOT.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any
other person who signs,guarantees or endorses this Note,to the extent allowed by law,waive presentment,demand for payment, protest and notice of
dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note,whether as maker,
guarantor, accommodation maker or endorser,shall be released from liability. All such parties agree that Lender may renew or extend(repeatedly and
for any length of time)this loan,or release any party or guarantor or collateral;or impair,fail to realize upon or perfect Lender's security interest in the
collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender
may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE
INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED
COPY OF THE NOTE.
BORROWER:
SOARING HOME,LLC,A COLORADO LIMITED LIABILITY COMPANY
Nino til i iii iii
E`VERITT ENTERPRISE
S, AiCOLOtADd ai9R}eORATION, MANAGING MEMBER BY STANLEY K. EVERITT AS EXECUTIVE VICE
PRESIDENT
n.CO P
DY:DOUBLE E&G,INC.,A'COLORADO CORPOAATIolt AEMBER BY DAVID EVERITT AS PRESIDENT
LENDER:
First National Bank
BY:
Authorized Officer
Variable Rate. Line of Credit. LASER PRO,Reg.U.S.Pat.&T.M.Off.,Ver.3.28c(c)2001 CFI PraServices,Inc. All rights reserved.[CO-O20 E3.28 SOARING.LN C20.OVL]
RECORDATION REQUESTED BY:
First National Bank
155 E.Boardwalk
Fort Collins,CO 80525
WHEN RECORDED MAIL TO:
First National Bank
Attn:Loan Administration
205 West Oak
Fort Collins,CO 80521
SEND TAX NOTICES TO:
SOARING HOME, LLC, A COLORADO LIMITED
LIABILITY COMPANY
3030 SOUTH COLLEGE
FORT COLLINS,CO 80525
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY
DEED OF TRUST
THIS DEED OF TRUST IS DATED MARCH 30, 2001, among SOARING HOME, LLC, A COLORADO LIMITED
LIABILITY COMPANY, whose address is 3030 SOUTH COLLEGE, FORT COLLINS, CO 80525 (referred to
below as "Grantor"); First National Bank, whose address is 155 E. Boardwalk, Fort Collins, CO 80525
(referred to below sometimes as "Lender" and sometimes as "Beneficiary"); and the Public Trustee of Weld
County, Colorado (referred to below as "Trustee").
CONVEYANCE AND GRANT. For valuable consideration, Grantor hereby irrevocably grants, transfers and assigns to Trustee for the
benefit of Lender as Beneficiary all of Grantor's right,title, and interest In and to the following described real property,together with all existing
or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water,water rights
and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property,
including without limitation all minerals, oil, gas, geothermal and similar matters, located in Weld County, State of Colorado (the
"Real Property"):
LOTS 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29,
30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57,
58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68 AND 69, Soaring Eagle Ranch P.U.D. Final Plat, a subdivision
of the County of Weld, State of Colorado.
The Real Property or its address is commonly known as Vacant Lots.
Grantor presently assigns to Lender(also known as Beneficiary In this Deed of Trust)all of Grantor's right,title, and interest in and to all present
and future leases of the Property and all Rents from the Property. In addition,Grantor grants Lender a Uniform Commercial Code security interest
in the Rents and the Personal Property defined below.
DEFINITIONS. The following words shall have the following meanings when used in this Deed of Trust. Terms not otherwise defined in this
Deed of Trust shall have the meanings attributed to such terms In the Uniform Commercial Code. All references to dollar amounts shall mean
amounts in lawful money of the United States of America.
Guarantor. The word "Guarantor" means and includes without limitation any and all guarantors, sureties, and accommodation parties in
connection with the Indebtedness.
Improvements. The word"Improvements"means and includes without limitation all existing and future Improvements, buildings,structures,
mobile homes affixed on the Real Property,facilities,additions,replacements and other construction on the Real Property.
Indebtedness. The word"Indebtedness"means all principal and interest payable under the Note and any amounts expended or advanced
by Lender to discharge obligations of Grantor or expenses incurred by Trustee or Lender to enforce obligations of Grantor under this Deed
of Trust,together with interest on such amounts as provided In this Deed of Trust. This Deed of Trust secures, in addition to the amounts
specified in the Note,future advances in an unlimited amount,together with all interest thereon,which future advances Lender is obligated
to make so long as Grantor complies with all the terms and conditions of the Note or other loan agreement.
Note. The word "Note" means the Note dated March 30, 2001, in the principal amount of $3,810,023.00 from Grantor to
Lender, together with all renewals, extensions, modifications, refinancings, and substitutions for the Note. NOTICE TO GRANTOR: THE
NOTE CONTAINS A VARIABLE INTEREST RATE.
Personal Property. The words"Personal Property" mean all equipment,fixtures, and other articles of personal property now or hereafter
owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all
replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance
proceeds and refunds of premiums)from any sale or other disposition of the Property.
Property. The word"Property"means collectively the Real Property and the Personal Properly.
Real Property. The words"Real Property"mean the property,interests and rights described above in the"Conveyance and Grant"section.
Related Documents. The words"Related Documents" mean and include without limitation all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements
and documents,whether now or hereafter existing,executed in connection with the Indebtedness.
Rents. The word"Rents"means all present and future rents,revenues, income,issues,royalties,profits, and other benefits derived from the
Property.
THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL
PROPERTY, IS GIVEN TO SECURE (1)PAYMENT OF THE INDEBTEDNESS AND (2)PERFORMANCE OF ANY AND ALL OBLIGATIONS OF
GRANTOR UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF TRUST. THIS DEED OF TRUST, INCLUDING THE
ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY,IS ALSO GIVEN TO SECURE ANY
AND ALL OBLIGATIONS OF GRANTOR UNDER THAT CERTAIN CONSTRUCTION LOAN AGREEMENT BETWEEN GRANTOR AND LENDER
OF EVEN DATE HEREWITH. ANY EVENT OF DEFAULT UNDER THE CONSTRUCTION LOAN AGREEMENT, OR ANY OF THE RELATED
DOCUMENTS REFERRED TO THEREIN,SHALL ALSO BE AN EVENT OF DEFAULT UNDER THIS DEED OF TRUST. THE NOTE AND THIS
DEED OF TRUST ARE GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Deed of Trust, Grantor shall pay to Lender all amounts secured by this
Deed of Trust as they become due,and shall strictly and in a timely manner perform all of Grantor's obligations under the Note,this Deed of Trust,
03-30-2001 DEED OF TRUST Page 2
Loan No (Continued)
and the Related Documents.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's possession and use of the Property shall be governed
by the following provisions:
Possession and Use. Until the occurrence of an Event of Default, Grantor may (a)remain in possession and control of the Property, (b)
use,operate or manage the Property,and (c)collect any Rents from the Properly.
Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and
maintenance necessary to preserve its value.
Hazardous Substances. Grantor represents and warrants that the Property never has been,and never will be so long as this Deed of Trust
remains a lien on the Property, used for the generation, manufacture, storage, treatment, disposal, release or threatened release of any
hazardous waste or substance, as those terms are defined in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act ("SARA"),
applicable state or Federal laws,or regulations adopted pursuant to any of the foregoing. Grantor authorizes Lender and its agents to enter
upon the Property to make such inspections and tests as Lender may deem appropriate to determine compliance of the Property with this
section of the Deed of Trust. Grantor hereby (a) releases and waives any future claims against Lender for indemnity or contribution in the
event Grantor becomes liable for cleanup or other costs under any such laws, and (b) agrees to indemnify and hold harmless Lender
against any and all claims and losses resulting from a breach of this paragraph of the Deed of Trust. This obligation to indemnify shall
survive the payment of the Indebtedness and the satisfaction of this Deed of Trust.
Nuisance,Waste. Grantor shall not cause,conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to
the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other
party the right to remove, any timber, minerals (including oil and gas), soil, gravel or rock products without the prior written consent of
Lender.
DUE ON SALE -CONSENT BY LENDER. Lender may, at its option, declare immediately due and payable all sums secured by this Deed of
Trust upon the sale or transfer, without the Lender's prior written consent, of all or any part of the Real Property, or any interest in the Real
Properly. A"sale or transfer means the conveyance of Real Property or any right,title or Interest therein; whether legal, beneficial or equitable;
whether voluntary or involuntary;whether by outright sale,deed, installment sale contract,land contract,contract for deed, leasehold interest with
a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust
holding title to the Real Property,or by any other method of conveyance of Real Property interest. If any Grantor is a corporation, partnership or
limited liability company,transfer also includes any change in ownership of more than twenty-five percent(25%) of the voting stock, partnership
interests or limited liability company Interests, as the case may be, of Grantor. However, this option shall not be exercised by Lender if such
exercise is prohibited by federal law or by Colorado law.
TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are a part of this Deed of Trust.
Payment. Grantor shall pay when due(and In all events prior to delinquency)all taxes,special taxes,assessments,charges(including water
and sewer),fines and impositions levied against or on account of the Property, and shall pay when due all claims for work done on or for
services rendered or material furnished to the Property. Grantor shall maintain the Property free of all liens having priority over or equal to
the interest of Lender under this Deed of Trust, except for the lien of taxes and assessments not due and except as otherwise provided in
this Deed of Trust.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Deed of Trust.
Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements
on a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid
application of any coinsurance clause, and with a standard mortgagee clause In favor of Lender. Grantor shall also procure and maintain
comprehensive general liability Insurance in such coverage amounts as Lender may request with trustee and Lender being named as
additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, Including but not limited to
hazard, business interruption,and boiler insurance,as Lender may reasonably require. Policies shall be written in form,amounts,coverages
and basis reasonably acceptable to Lender and issued by a company or companies reasonably acceptable to Lender. Grantor, upon
request of Lender, will deliver to Lender from time to time the policies or certificates of insurance In form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at least ten(10)days'prior written notice to Lender. Each insurance
policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired In any way by any act,omission or
default of Grantor or any other person. Should the Real Property at any time become located In an area designated by the Director of the
Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance for
the full unpaid principal balance of the loan and any prior liens on the property securing the loan,up to the maximum policy limits set under
the National Flood Insurance Program,or as otherwise required by Lender,and to maintain such insurance for the term of the loan.
EXPENDITURES BY LENDER. If Grantor falls to comply with any provision of this Deed of Trust,or if any action or proceeding is commenced
that would materially affect Lender's interests in the Property, Lender on Grantor's behalf may, but shall not be required to,take any action that
Lender deems appropriate. Any amount that Lender expends in so doing will bear Interest at the rate provided for In the Note from the date
Incurred or paid by Lender to the date of repayment by Grantor. All such expenses, at Lender's option,will (a) be payable on demand, (b) be
added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (i)the
term of any applicable Insurance policy or (Ii) the remaining term of the Note, or (c) be treated as a balloon payment which will be due and
payable at the Note's maturity. This Deed of Trust also will secure payment of these amounts. The rights provided for in this paragraph shall be
in addition to any other rights or any remedies to which Lender may be entitled on account of the default. Any such action by Lender shall not be
construed as curing the default so as to bar Lender from any remedy that it otherwise would have had.
WARRANTY;DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Deed of Trust.
Title. Grantor warrants that: (a)Grantor holds good and marketable title of record to the Property in fee simple, free and clear of all liens
and encumbrances other than those set forth In the Real Property description or in any title insurance policy,title report,or final title opinion
Issued in favor of, and accepted by, Lender in connection with this Deed of Trust,and (b)Grantor has the full right,power, and authority to
execute and deliver this Deed of Trust to Lender.
Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against
the lawful claims of all persons.
DEFAULT. Each of the following,at the option of Lender,shall constitute an event of default("Event of Default")under this Deed of Trust:
Default on indebtedness. Failure of Grantor to make any payment when due on the Indebtedness.
Default on Other Payments. Failure of Grantor within the time required by this Deed of Trust to make any payment for taxes or insurance,
or any other payment necessary to prevent filing of or to effect discharge of any lien.
Default in Favor of Third Parties. Should Borrower default under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, In favor of any other creditor or person that may materially affect any of Borrower's property or
Borrower's ability to repay the Loans or perform Borrower's obligations under this Deed of Trust or any related document.
Compliance Default. Failure of Grantor to comply with any other term,obligation,covenant or condition contained In this Deed of Trust,the
Note or in any of the Related Documents.
Defective Collaterallzation. This Deed of Trust or any of the Related Documents ceases to be in full force and effect(including failure of
any collateral documents to create a valid and perfected security interest or lien)at any time and for any reason.
Death or Insolvency. The dissolution(regardless of whether election to continue is made), any member withdraws from the limited liability
company, or any other termination of Grantor's existence as a going business or the death of any member, the insolvency of Grantor, the
appointment of a receiver for any part of Grantor's property, any assignment for the benefit of creditors, any type of creditor workout,or the
commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor.
03-30-2001 DEED OF TRUST Page 3
Loan No (Continued)
Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any
Guarantor dies or becomes incompetent,or revokes or disputes the validity of,or liability under,any Guaranty of the Indebtedness.
Adverse Change. A material adverse change occurs in Grantor's financial condition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
Insecurity. Lender in good faith has reasonable cause to believe it is insecure or that Its collateral is impaired.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of Default and at any time thereafter, Trustee or Lender, at its
option,may exercise any one or more of the following rights and remedies,in addition to any other rights or remedies provided by law:
Accelerate Indebtedness. Lender shall have the right at its option without notice to Grantor to declare the entire Indebtedness immediately
due and payable,including any prepayment penalty which Grantor would be required to pay.
Foreclosure. Lender shall have the right to cause all or any part of the Real Property, and Personal Property, if Lender decides to proceed
against it as if it were real property,to be sold by the Trustee according to the laws of the State of Colorado as respects foreclosures against
real property. The Trustee shall give notice in accordance with the laws of Colorado. The Trustee shall apply the proceeds of the sale in the
following order: (a)to all costs and expenses of the sale, including but not limited to Trustee's fees, attorneys' fees, and the cost of title
evidence; (b)to all sums secured by this Deed of Trust;and (c)the excess,if any,to the person or persons legally entitled to the excess.
Other Remedies. Trustee or Lender shall have any other right or remedy provided in this Deed of Trust or the Note or by law.
Sale of the Property. In exercising its rights and remedies, Lender shall be free to designate on or before it files a notice of election and
demand with the Trustee,that the Trustee sell all or any part of the Property together or separately, in one sale or by separate sales. Lender
shall be entitled to bid at any public sale on all or any portion of the Property. Upon any sale of the Property,whether made under a power
of sale granted in this Deed of Trust or pursuant to judicial proceedings, If the holder of the Note is a purchaser at such sale, it shall be
entitled to use and apply all,or any portion of,the Indebtedness for or in settlement or payment of all,or any portion of,the purchase price
of the Property purchased, and, in such case, this Deed of Trust, the Note, and any documents evidencing expenditures secured by this
Deed of Trust shall be presented to the person conducting the sale in order that the amount of Indebtedness so used or applied may be
credited thereon as having been paid.
Expenses. If Lender forecloses or institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to
recover such sum as the court may adjudge reasonable. Whether or not any court action is involved, all reasonable expenses incurred by
Lender which in Lender's opinion are necessary at any lime for the protection of its interest or the enforcement of its rights shall become a
part of the Indebtedness payable on demand and shall bear Interest at the Note rate from the date of expenditure until repaid. Expenses
covered by this paragraph include, without limitation, however subject to any limits under applicable law, any anticipated post-judgment
collection services,the cost of searching records,obtaining title reports(Including foreclosure reports),surveyors'reports,appraisal fees,title
insurance, and fees for the Trustee,to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other
sums provided by law.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Deed of Trust:
Applicable Law. This Deed of Trust has been delivered to Lender and accepted by Lender in the State of Colorado. This Deed of
Trust shall be governed by and construed in accordance with the laws of the State of Colorado.
Time Is of the Essence. Time is of the essence In the performance of this Deed of Trust.
Waivers and Consents. Lender shall not be deemed to have waived any rights under this Deed of Trust(or under the Related Documents)
unless such waiver is in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a
waiver of such right or any other right. A waiver by any party of a provision of this Deed of Trust shall not constitute a waiver of or prejudice
the party's right otherwise to demand strict compliance with that provision or any other provision. No prior waiver by Lender,nor any course
of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or any of Grantor's obligations as to any future
transactions. Whenever consent by Lender is required in this Deed of Trust,the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such consent is required.
Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption laws of the
State of Colorado as to all Indebtedness secured by this Deed of Trust.
EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST,AND EACH GRANTOR AGREES TO
ITS TERMS.
GRANTOR:
SOARING HOME,LLC,A COLORADO LIMITED LIABILITY COMPANY
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EVERITT'ENTERPRISES-, INC.,)A COLORADO CORPORATION,MANAGING MEMBER BY STANLEY K.EVERITT AS EXECUTIVE VICE
PRESIDENT
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By: !: !i;��i'!:,'RIO!i!!!: 'il' :.:;,!v,��v�el!:e„':! ��!!::: !�!!!;! I!e�li,lllll!,�I'v'I!lll��ii;�ly
DOUBLE E L 6;find.,A COLORADO CORPORATION,M'EMBER BY DAVID EVERITT AS PRESIDENT
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
STATE OF
)SS
COUNTY OF
On this day of , 20 , before me, the undersigned Notary Public, personally appeared EVERITT
ENTERPRISES, INC.,A COLORADO CORPORATION, MANAGING MEMBER BY STANLEY K.EVERITT AS EXECUTIVE VICE PRESIDENT;
and DOUBLE E:6 G, INC.,A COLORADO CORPORATION,MEMBER BY DAVID EVERITT AS PRESIDENT, and known to me to be members
or designated agents of the limited liability company that executed the Deed of Trust and acknowledged the Deed of Trust to be the free and
voluntary act and deed of the limited liability company, by authority of statute, its articles of organization or its operating agreement,for the uses
and purposes therein mentioned,and on oath stated that they are authorized to execute this Deed of Trust and in fact executed the Deed of Trust
on behalf of the limited liability company.
By Residing at
Notary Public in and for the State of My commission expires
LASER PRO,Reg.U.S.Pat.&T.M.Oft.,Ver.3.28c(c)2001 CFI ProServices,Inc. All rights reserved.[CO-G01 E3.28 F3.28 SOARING.LN C20.OVL]
ACQUISITION AND DEVELOPMENT
LOAN AND SECURITY AGREEMENT
DATE: MARCH 30, 2001
BORROWER: SOARING EAGLE, LLC, A COLORADO LIMITED LIABILITY
COMPANY
LEGAL DESCRIPTION: Lots
1,2,3,4, 5, 6,7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,
20,21,22,23,24,25,26,27, 28,29, 30, 31, 32,33,34,35,
36,37,38,39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51,
52, 53,54,55,56,57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67,
68 and 69, SOARING EAGLE RANCH P.U.D. FINAL
PLAT, A SUBDIVISION OF THE COUNTY OF WELD, STATE
OF COLORADO.
PROPERTY ADDRESS: VACANT LOTS
MAILING ADDRESS: 3030 S. COLLEGE AVENUE
FORT COLLINS, CO 80525
LOAN AMOUNT: $3,810, 023.00
INTEREST RATE: WALL STREET JOURNAL PRIME, FLOATING.
TERM OF LOAN: TWENTY FOUR (24)
SCHEDULED COMPLETION DATE: MARCH 30, 2003
LOAN FEE: $28, 575.17
BY THIS AGREEMENT, the above named borrower and FIRST NATIONAL BANK, ("Bank")
confirm and agree as follows:
SECTION 1. RECITALS
1.1 Borrower has applied to Bank for a loan for the purpose (as indicated in
Section 3 below) of (a) acquiring or completing acquisition of the real
property described above (the "Real Property") and / or, (b) constructing
thereon certain onsite and offsite improvements. Onsite and offsite
improvements may consist of paving, curbs, sidewalks, water, sewer, electric
and other utilities.
1.2 Borrower has tendered to Bank a promissory note in the above Loan Amount
(the"Note") and a deed of trust or realty mortgage (the "Deed of Trust")
covering the Real Property and all improvements now or hereafter located
thereon. The advances contemplated hereby shall be charged against the Note,
the total amount of all advances shall not exceed the principal sum thereof.
SECTION 2. CONDITIONS PRECEDENT
Bank agrees to lend to or for the benefit of Borrower, in the manner and upon
the terms and conditions herein provided, amounts not to exceed the Loan Amount
set forth above, subject to the prior satisfaction of the following conditions
precedent.
2. 1 Lots will be released at a pro-rata basis at 120% of $3, 810, 023.00 which
is equal to $66, 260.00 per lot.
2.2 Borrower shall have executed and delivered to Bank the following
documents, all in form satisfactory to the Bank:
(a) The Note;
(b) The Deed of Trust;
2.3 Borrower, at its expense, shall have delivered to Bank the following
items, all in form satisfactory to Bank:
(a) Plans and specifications for the proposed improvements (the
"Plans and Specifications") .
(b) A Final Plat Map.
(c) If required by Bank, an appraisal of the Real Property and the
improvements, of a type and in a form satisfactory to the Bank and indicating a
value satisfactory to the Bank.
(d) If the Project includes improvements customarily insured for
fire and hazard, evidence that Borrower is fully insured, in an amount not less
than the full insurable value, under extended coverage fire and hazard
insurance with a company approved by Bank. Such insurance shall have standard,
without contribution, mortgagee's loss payment endorsements in favor of Bank.
The original policy or policies shall be delivered to the Bank prior to any
disbursement and shall be retained by the Bank.
(e) A loan title insurance policy in favor of Bank insuring Bank's
Deed of Trust lien to be a first and prior lien upon the Real Property, subject
only to such exceptions as Bank may approve in writing, and issued by a title
company approved by Bank and doing business in the county where the Real
Property is located.
(f) Policies or certificates of insurance evidencing personal
liability and property damage liability in amounts not less than: $500, 000.00
each accident, $500, 000.00 each person, and $500, 000.00 property damage
liability; together with workmen's compensation insurance in amounts and form
satisfactory to Bank.
(g) Evidence that all taxes and assessments levied against or
affecting the Real Property have been paid current.
(h) Evidence that:
(1) No part of the Real Property lies within a "special
flood hazard area" as designated on maps prepared by the Department of Housing
and Urban Development; or
(2) A National Flood Insurance Association Standard Flood
Insurance Policy, or certificate thereof, in an amount no less than the Loan
Amount, or in the maximum amount available for the Real property, provided at
Borrower's expense and effective during the term of this loan.
If such coverage is not available, Borrower shall provide
Bank with a statement to that effect from a reputable insurance agent.
(i) Evidence that adequate gas, electric, water and sewer
utilities will be provided to the Real Property by
appropriate public utilities and/or government agencies.
(j ) A detailed cost breakdown with the estimated costs to
complete the project, and certified to be correct to the best knowledge and
belief of the Borrower.
(k) Firm and binding contracts for the construction of the
improvements.
2.4 The financial stability of the contractors for the construction of the
improvements shall be satisfactory to the Bank.
2.5 All representations and warranties by the Borrower shall remain true and
correct and all agreements which the Borrower is to have performed or complied
with by the date of such advance have been performed or complied with.
2. 6 There exists no condition or event constituting a default of this
Agreement or which would constitute such a default after notice or lapse of
time or both.
SECTION 3. DISBURSEMENTS
3.1 Bank, at its election, may make disbursements of the loan proceeds,
subject to the terms and conditions provided herein, in the following manner:
(a) For improvements: the balance of the loan proceeds in
the amount not to exceed THREE MILLION EIGHT HUNDRED
TWN THOUSAND TWENTY THREE DOLLARS AND NO/100THS
($3, 810, 023.00) fully disbursed, in amounts equal to
one hundred percent (100%) of expenditures for labor
performed and material supplied, or development fees
due the County of WELD, or upon completion of the
various stages of construction as may be otherwise
agreed upon in writing between Bank and Borrower, in
accordance with Plans and Specifications, as certified
by Borrower and subject to inspection by an engineer,
architect, or inspector acceptable to Bank and subject
to Bank's inspection.
(b) Fifteen percent ($496, 960.00) of the total cost of the
public improvements for Filing I and Filing 2 of
Soaring Eagle Ranch P.U.D. , County of Weld, State of
Colorado, cannot be drawn upon and will be made
Available to Weld County by a First National Bank
Letter of Credit # for the assurance of
the $3,313, 063.00 in total improvements described in
Exhibit A.
3.2 Disbursements shall be requested in writing, as presented in Exhibit B,
may be requested monthly and shall be only approved costs in connection with
the completion of the Project. Each request for disbursement shall constitute
a warranty by Borrower that no liens of any kind have been filed or served
against Borrower or the premises and that construction conforms substantially
to the Plans and Specifications. Disbursements will be advanced after an
inspection of work performed, and verification of costs by invoices, paid
statements and lien waivers.
3.3 At Bank's option, construction inspections shall be made by an inspector
acceptable to Bank and Borrower. The inspector and Borrower will attest
to each and every draw and shall state that all work performed is in full
and complete agreement with the Plans and Specifications. Any change in
work of $75, 000.00 or greater to be performed or materials to be used
shall be approved in writing by the Bank.
3.4 Any disbursements by Bank of the loan proceeds may be disbursed to
Borrower or its order, or at Bank's election directly to the persons furnishing
labor and / or materials, or to both. Bank shall have no obligation to see
that the disbursements made by it to Borrower or any designee of Borrower are
actually used by that party to pay for labor and materials furnished for
construction of the improvements. Borrower acknowledges that this is its
responsibility and Borrower assumes all risks in connection with any
disbursement to any such designee.
3.5 Each application shall be stated on a form approved by Lender, executed
by Borrower, and supported by such evidence as Lender shall reasonably require.
Borrower shall apply only for disbursement with respect to work actually done
by the General Contractor and for materials and equipment actually incorporated
into the Project. Each application for an Advance shall be deemed a
certification of Borrower that as of the date of such application, all
representations and warranties contained in the Agreement are true and correct,
and that Borrower is in compliance with all plans, specifications and building
codes.
SECTION 4 . BORROWER'S COVENANTS AND WARRANTIES
4 .1 Borrower will pay for all labor, materials, equipment and fixtures
relating to construction of the improvements if such are not paid from
loan funds.
4 .2 Borrower will cause the work to commence forthwith, proceed without
interruption and the improvements to be promptly completed on or before the
completion date according to the Plans and Specifications, free from all liens
and encumbrances, and in accordance with all applicable ordinances and
statutes, including zoning laws, all covenants and restrictions running with
the land, and all regulations and building codes of any governmental or
municipal agency having jurisdiction over the Real Property.
4 .3 Upon completion of each type of offsite improvement, Borrower will
furnish Bank evidence of the final certification and / or acceptance of that
offsite improvement by any municipality, utility, county or other governmental
entity whose certification or acceptance thereof is required.
4 .4 Borrower warrants that no labor or material has yet been nor will be
furnished until the Deed of Trust has been recorded and the title company has
committed to issue the title insurance policy required by paragraph 2.3 (e)
hereof, or, if construction has commenced, Borrower shall assure that all
necessary indemnification or other agreements are made, in form satisfactory to
the title company, in order to obtain the required mortgagee's title insurance
policy without exception for mechanics' or materialmen's liens.
4.5 Borrower will cause insurance coverage as outlined in Paragraph 2.3 (d) ,
(f) , and (h) , if applicable, to remain in force at all times while this
Agreement is in effect.
4.6 Borrower will deliver to the Bank true copies of all sales contracts,
option contracts, or other agreements executed by buyers on any of the lots
included in the project. Not applicable.
4.7 Borrower will cause the following present indebtedness of Borrower to be
subordinated to the loan contemplated herein by a subordination agreement
satisfactory to Bank: Not Applicable.
4 .8 Borrower warrants that all financial statements, profit and loss
statements, statements as to ownership, and other statements given to Bank are
true and correct and that Borrower has full and complete title to any and all
property which may be pledged or mortgaged to Bank or otherwise hypothecated as
security for the loan.
4 .9 Borrower will pay all bills when due, keep books and records in
accordance with sound accounting practice, and will deliver to Bank such
financial and profit and loss statements (in form satisfactory to Bank) as Bank
may request from time to time and will permit a representative on behalf of
Bank to examine and audit the books of its business. Borrower will inform Bank
of any litigation involving Borrower, the adverse determination of which might
substantially prejudice repayment of the loan.
4 .10 Borrower will execute and deliver to Bank such other instruments and
documents as Bank may reasonably require in connection with this loan.
4 .11 Borrower will pay all normal expenses of closing and administering this
loan.
4 .12 In the event, for any reason, payment of said Note is extended, which
extension and length of extension shall be at the option and discretion of the
Bank, interest after the original due date of the Note may be computed at the
defaulting rate of the Note until the Note is paid in full.
SECTION 5. SECURITY INTEREST IN BUILDING MATERIALS
Borrower hereby grants to Bank, as further security for this loan, a security
interest in all building supplies, materials, goods, supplies, fixtures,
furniture, furnishings and equipment to be incorporated into the improvements,
together with all interest of Borrower in all goods, supplies, fixtures,
furniture, furnishings and equipment which are now or may hereafter be
appropriated for use on (whether such items are stored on the Real Property or
elsewhere) or located on, The Real Property, all rents, issues and profits due
or to become due the Borrower from or pertaining to the Real Property; together
will all rights of Borrower under any policies of insurance covering such
property, and all proceeds, loss payments and premium refunds which may become
payable with respect thereto.
SECTION 6. DEFAULT
6.1 The occurance of any of the following events shall constitute a default
of this Agreement:
(a) Breach of any term, condition or covenant contained herein or
in the Note, the Deed of
Trust, or any other security document given in connection herewith, and
failure to cure the default within any applicable cure or grace period.
(b) If work shall cease on improvements for sixty (60) consecutive
days, or if liens or encumbrances not approved by Bank shall exist against the
Real Property or improvements, provided if Borrower bonds against said lien or
encumbrance within thirty (30) days after notice from Bank, such lien or
encumbrance shall not constitute a default.
(c) The insolvency of or commencement of any bankruptcy,
arrangement or reorganization proceedings, whether voluntary or involuntary,
respecting the Borrower or any guarantor of the Loan.
(d) If Borrower shall become in default with respect to any other
indebtedness or obligation of Borrower to Bank.
6.2 In the event of any such default, Bank may, at its option, declare the
whole of the indebtedness secured by the Deed of Trust immediately due and
payable, without notice or demand, and Bank may cease disbursements hereunder
and shall be entitled to commence proceedings for Trustee's Sale or for
immediate foreclosure of said Deed of Trust as a mortgage and may, additionally
or alternatively, avail itself of any other relief to which Bank may be legally
or
equitably entitled, including, without limitation and at Bank's option.
(1) The right to enter into possession of the premises and all
personal property thereon owned by Borrower or used in connection with the
operation of said premises; and
(2) The right to take over and complete, or cause to be completed,
the construction of the improvements, charging the cost thereof, including a
reasonable allowance for supervision, against Borrower, the repayment of which,
in addition to all other sums paid out or advance by Bank, shall be secured by
the Deed of Trust.
Provided, however, that no such action shall be taken until Bank shall have
given Borrower written notice of such default (but only if it is of a nature
which can reasonably be corrected by Borrower within the grace period
provided) , and shall have allowed Borrower 15 days thereafter in which to
correct such default.
6.3 Should Bank employ legal counsel or begin an action at law or proceeding
to enforce the terms hereof, Borrower shall pay all reasonable attorney's fees
so incurred and such fees shall be included in any judgement obtained by Bank.
SECTION 7. RELEASE PROVISIONS
At any time Borrower is not in default under this Agreement, or under the Note,
Deed of Trust, or any other document or instrument given in connection
herewith, shall be entitled to a partial release from the lien of the Deed of
Trust of any lot comprising part of the Real Property, upon receipt by Bank of
a release price per attached release schedule. Release payment shall be
applied to the principal balance outstanding under the Note. Lots shall be
released in an order acceptable to the Bank.
SECTION 8.
8.1 Bank shall have the right at all times during construction to inspect
progress thereof, and if such work is not in accordance with approved Plans and
Specifications or is otherwise unsatisfactory to Bank, it shall have the right
to require compliance with said Plans and Specifications and remedying of all
defects. In consequence thereof, Bank assumes no responsibility for defective
materials or workmanship, nor shall any inspection by Bank constitute approval
of any certification given to Bank.
8.2 If work is not in conformance with approved Plans and Specifications, or
is not otherwise satisfactory to Bank, it shall have the right to stop said
work and order its replacement, whether or not said work has been incorporated
in said improvements, and to withhold all disbursements until said work is
satisfactory to Bank. If said work is not made satisfactory to Bank within
thirty (30) days from the date of stoppage by Bank, such failure shall
constitute a default by Borrower under the terms of this Agreement.
SECTION 9. WAIVERS
9.1 All requirements in this Agreement are for the protection and benefit of
Bank only, and are not for the purpose of imposing upon Bank any obligation to
protect Borrower. All approvals are for the benefit and protection of the Bank
and shall not obligate the Bank in any way. Bank may waive any requirement
herein and, notwithstanding such waiver, may thereafter insist on strict
performance by giving Borrower written notice and a reasonable opportunity
thereafter to satisfy any such previously waived requirement.
9.2 Failure or delay by Bank in exercising or enforcing any right, power,
privilege, lien, option or remedy hereunder shall not operate as a waiver
thereof, all of which shall continue in full force and effect until all
indebtedness of Borrower to Bank has been fully paid and satisfied; and the
waiver by Bank of any breach of this Agreement or any warranty, representation,
covenant or condition contained herein shall not be construed or act as a
waiver of any subsequent breach or of any continuing breach after demand for
strict performance, nor shall affect or impair any right or power resulting
from any breach.
SECTION 10. GENERAL
10. 1 This Agreement shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties hereto. Time and the
exactitude of each of the terms, conditions and provisions herein are expressly
made of the essence of this Agreement.
10.2 All notices hereunder shall be in writing, effective forty-eight (48)
hours after deposit in the U.S. Mail, postage prepaid, addressed, in the case
of Borrower to the address shown on page one hereof, in the case of the
Guarantors address listed on the Guaranty and in the case of Bank to FIRST
NATIONAL BANK, 155 East Boardwalk, Fort Collins, Colorado 80525, or to such
other address as either party may designate in writing.
10.3 Borrower shall pay such attorney fees as are incurred by the Bank in
connection with this loan.
10.4 Borrower agrees to the following additional provisions:
a. Current financial statements for the Borrower and Guarantor are to
be provided annually. Tax returns for the Borrower and Guarantors
are to be provided annually. The Borrowers and Guarantors agree
to provide additional financial information to the Bank quarterly
or when requested. The financial information provided is to be
certified by the Borrowers as being a true and correct
representation of the financial condition as of the date of the
financial statement.
b. At any time that the Bank is required to get an updated appraisal
due to regulatory requirements, Lender may, at Borrower's expense,
obtain an appraisal and an appraisal review of the property to be
prepared by independent appraisers and in form and substance
satisfactory to the Lender. At Lender's option the cost of said
appraisal and appraisal review may be deemed to be an advance of
loan proceeds to be added to the principal balance of the Note.
Borrower further agrees to provide the Lender, or any independent
appraiser appointed by the Lender, any and all information required
to prepare said appraisal and appraisal review.
BORROWER(S) : SOARING HOME, LLC, A COLORADO LIMITED LIABILITY COMPANY
EVERITT ENTERPRISES, INC. , A COLORADO CORPORATION, MANAGING
MEMBER BY STANLEY K. EVERITT AS EXECUTIVE VICE PRESIDENT
DOUBLE E & G, INC. , A COLORADO CORPORATION, MEMBER BY DAVID
EVERITT AS PRESIDENT
FIRST NATIONAL BANK
BY:
DONNA L. TAUB, VICE PRESIDENT
•
EXHIBIT "A" _
Soaring Eagle Ranch, PUD
TOTAL PUBLIC IMPROVEMENTS COST
FOR PHASES I&II:
$3,313,063
x 115%
TOTAL DEVELOPMENT LOAN REQUIRED
FOR PHASES I& II: $3,810,023
(Includes 15% Warranty amount)
TOTAL
CATEGORY PHASEI PHASE II PHASE I&II
Site Gradina' 816,700 140,006 956,706
Potable Water
A) Lines 234,280 103,338 337,618
B) Hydrants 44,875 39,000 83,875
C) Fittings&Service 38,045 29,895 67,940
Irrigation System*
A) Pump Station 180,000 180,000
B) Lines 63,500 67,212 130,712
C) Services&Fittings 48,128 54,144 102,272
Storm Drainage.
A) Culverts 55,041 11,795 66,836
B) Wiers 3,850 4,950 8,800
C) Erosion Control 34,491 5,913 40,404
Streets.
A) Grading 52,179 4,560 56,739
B) Base 241,389 153,079 394,468
C) Paving 185,073 109,132 294,205
O) Striping&Control 20,100 2,000 22,100
Amenities.
A) Landscaping 186,500 0 186,500
B) Open Space Trail 56,914 0 56,914
C) Roadside Trail 11,112 11,112 22,224
D) Open Space 197,200 42,650 239,850
E) Fencing 61,875 0 61,875
F) Street Signs 2,475 550 3,025
_
TOTAL PUBLIC IMPROVEMENTS 2,533,727 779,336 3,313,063
REQUEST FOR DRAW
SCHEDULE OF IMPROVEMENTS COMPLETED
Name of Subdivision or Planned Unit Development; SOARING EAGLE RANCH.PUD REQUEST NO.
Location: Part of Sections 28 and 33,17N.R671/4 of 6th P.M.,Weld County,CO
COMPLETED COMPLETED
_
TOTAL COMPLETED PER PREVIOUS THIS
_ l
',CATEGORY _ PHASE 1 _ PHASEII _ PHASE IA 11 CATEGORIES REQUEST PERIOD
Site Gra4lln� 816,700 140,008 956,706_
Potable Wafer: _
A) Lines 234,280 103,338_ 37,618 _
B) Hydrants 44,675 39,000 83,875—
C) Fittings BSefv(oa _ 38,045 29,895 67,940
^ Irriaation System' _
A) Pump Stalks 180,006 180,000
9) Lines 63,500 67,212 130,712
C) Services 8 Rungs 48,128 54,144 102,272
H Storm Draineat:111 1 _
A) Coverts 55,041 11.795 66,836
ry B) Vhers 3,850 4,950 8,806
xy C) Erosion Control 34A91 5,913 40,404
LT-1 A) Gracing 52,179 4,560 56,739
B) Base 241.389 153,079 394,468
C) Paving 185,073 109,132 294,205
D) Striping 8 Control 20,100 2,000 22,100 1
&MOR =
A) landscaping 1866.500 0 186,500 1
B) Open Space Trail 1 56,914 0 56,914v I
C) Roadside Trail 11,112 11,112 22.224
D) Open Space 197,200 42,650 239,850
_E) Fenung 61,875 0 61,875
F) Street SOS 2.475 550 3.025
TOTAL PUBLIC IMPROVEMENTS 1 2533,727 779,336 3,313,063 1
The Undersigned certify that the categories shown have beeneanpleted as required under the Improvements Agreement
APPLICANT: COUNTY OF WELD:
SOARING HOME,LLC
Dak: I Date:
By.. By:
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