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[EXHIBIT 10.13]
AGREEMENT
THIS AGREEMENT is made and entered into this ____ day of September,
1997, by and between X. X. XXXXX & CO., a Utah corporation, hereinafter referred
to as "XXXXX", and SUN RIVER ST. XXXXXX DEVELOPMENT, L.C., a Utah limited
liability company, hereinafter referred to as "SRSG":
WHEREAS SRSG is developing a residential project in St. Xxxxxx, Utah
known as the Atkinville Property for which it has obtained preliminary master
plan approval form the City of St. Xxxxxx and XXXXX has agreed to perform the
construction of required public improvements for Plats 1a and 1b of the project
including the access road and required utilities to serve the project;
NOW, THEREFORE, in consideration of the mutual covenants herein, it is
hereby agreed between the parties hereto as follows:
1. SRSG shall proceed to obtain final approval of Plats 1a and 1b
of the project, as shown on the proposed plat attached hereto as Exhibit "a",
and to record such plats as soon as possible.
2. XXXXX agrees to perform the construction and installation of all
of the improvements for Plats 1a and 1b and the access road thereto including
all required utilities, on the terms and conditions and for the prices and on
the time schedule set forth in the Construction Agreement, a copy of which is
attached hereto as Exhibit "B: and hereby incorporated herein as a part of this
agreement. Such work shall be performed in accordance with all requirements,
standards and specifications and subject to the approval of the City of St.
Xxxxxx and any and all other governmental units having jurisdiction over the
project. XXXXX shall diligently commence, pursue and complete such work in order
to meet SRSG's construction and sales requirements.
3. XXXXX agrees to extend credit to SRSG for the work performed
hereunder up to a maximum amount of $2,000,000.00, unless otherwise approved in
writing by XXXXX, but shall submit monthly xxxxxxxx to SRSG by the 15th of each
month for all work performed in the prior month, such xxxxxxxx to be consistent
with the unit prices attached to Exhibit "B", and to show the total amount due
XXXXX for all work performed to the end of the prior month. SRSG agrees to
execute a promissory note to XXXXX for the amount of each monthly billing, plus
interest thereon at the rate of ten (10%) percent per annum from the date each
billing statement is due (the 15th of each month for all work performed in the
prior month) payable as set forth hereinafter. Such monthly promissory notes may
be consolidated into one master promissory note upon the redelivery, marked
"paid in full" of each prior monthly note.
4. In order to secure the amounts due from SRSG to XXXXX, SRSG
shall execute and deliver to XXXXX a first trust deed on the property included
within Plats 1a and 1b described as Parcels 1 and 2 on Exhibit "C" attached
hereto. XXXXX, as the beneficiary of such trust deed, agrees to execute the
subdivision plats to be recorded in order to dedicate all roadways and other
public areas shown on such plats.
5. SRSG shall pay to XXXXX the amounts due under the promissory
note or notes by payment of $23,000.00 from the closing of the sale of each lot
in Plats 1a and 1b upon reconveyance of each such lot from the effect of the
trust deed to XXXXX. Such reconveyances are to be given in the order in which
lots are sold and closed and such lots need not be contiguous to previously sold
lots. In
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order to facilitate closings, both parties agree to deliver blanket instructions
to Southern Utah Title Company to pay such amounts directly form the closing of
each lot and to reconvey each lot from the effect of the trust deed as closings
take place so that separate instructions are not required for each closing.
6. In the event the amounts due XXXXX under the promissory note or
notes have not been paid in full prior thereto, SRSG shall pay the remaining
balance due on or before two years from the date hereof.
7. If SRSG desires that XXXXX provide performance bonds covering
the work to be performed hereunder, SRSG shall reimburse XXXXX for the premiums
required to obtain such bonds.
8. Upon the consent of both parties and assuming successful sale of
the lots in Plats 1a and 1b, this agreement may be extended to cover subsequent
plats in the project and both agree to act in good faith to accomplish that
extension. SRSG agrees to use its best efforts to obtain for XXXXX the contract
to perform the improvements for the golf course associated with the project.
9. It is understood that some of the work contemplated by this
agreement is already being performed by Bear River Contractors under preliminary
agreements which are subject to termination. This agreement is subject to the
successful termination of those agreements so as to avoid conflict in the
performance of the work. SRSG agrees to move expeditiously to terminate those
agreements and XXXXX agrees to move expeditiously to commence and complete the
work on the project upon receiving notice from SRSG that the termination has
been accomplished.
10. This agreement is binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns, shall be
interpreted in accordance with the laws of the State of Utah and, in the event
of any default in the performance hereof, the defaulting party shall pay all
costs, including reasonable attorney's fees, incurred in the enforcement hereof
or in pursuing any remedy available under the law.
IN WITNESS WHEREOF, the parties hereto have caused the names of their
duly authorized officers, managers or agents to be signed hereunder.
X. X. XXXXX & CO. SUN RIVER ST. XXXXXX, X.X.
a Utah Corporation a Utah limited liability company
Xxxxxxx X. Xxxxx, President Xxxxx X. Xxxxxxx, Manager
