HomeMy WebLinkAboutbocc.con.239.2010 CONTRACT ## ;V/&
COVENANT AGREEMENT
FOR THE OCCUPANCY AND RESALE
OF 1555 NETTLE CREEK ROAD
(Relating to Employee Housing Mitigation Fees)
THIS COVENANT AGREEMENT FOR THE OCCUPANCY AND RES E OF
1555 NETTLE CREEK ROAD (the "Agreement ") is made and entered into this 2 day of
August 2010, by GSS PROPERTIES, LLC, a North Carolina limited liability company ( "GSSP "),
A. Garry Snook ( "Garry "); and Sharon M. Snook ( "Sharon "), for the benefit of the parties and
enforceable by the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO (the "County ").
WITNESSETH:
WHEREAS, GSSP owns the real property described in Exhibit "A" attached hereto. For
purposes of this Agreement, the real property described on Exhibit "A" and all dwellings,
appurtenances, improvements and fixtures associated therewith shall hereinafter be referred to as
the "Property"; and
WHEREAS, GSSP obtained a building permit (the "Permit") from the County to
construct a Caretaker Dwelling Unit ( "CDU ") on the Property; and
WHEREAS, in connection with the Permit and pursuant to Ordinance No. 023 -2005
( "Ordinance 23 ") and Section 8 -30 -20 of the Pitkin County Land Use Code (the "Code "), GSSP
paid the County an Employee Housing Mitigation Fee ( "EHMF ") in the amount of $5,326.00 (the
"Current EHMF Payment "); and
WHEREAS, Garry and Sharon (i) own 100% of the membership interests in GSSP and (ii)
use and occupy the Property as their primary residence; and
WHEREAS, pursuant to Ordinance 23 and the Code, the EHMF due in connection with
residential development depends on, among other factors, whether the development occurs in
connection with a `locally occupied unit" or a second home; and
WHEREAS, Ordinance 23 and the Code provide that EHMF "collected for residential
construction shall reflect mitigation for second -home use unless a covenant is recorded on the
property restricting it to Pitkin County resident occupancy"; and
WHEREAS, the Current EHMF Payment by GSSP in connection with the Permit for the
CDU was calculated and determined for the Property as a locally occupied unit; and
WHEREAS, because Garry and Sharon use and occupy the Property as their primary
residence, GSSP has agreed to record this Agreement restricting the Property to Pitkin County
resident occupancy in accordance with Ordinance 23 and the Code.
NOW, THEREFORE, for value received, the receipt and sufficiency of which is hereby
acknowledged, GSSP, Garry and Sharon hereby represent, covenant and agree as follows:
RECEPTION #: 575705, 12/08/2010 at
10:26:27 AM,
1 OF 6, R $0.00 Doc Code AGREEMENT
Janice K. Vos Caudill, Pitkin County, CO
1. For so long as this Agreement shall remain in effect, the Property shall be used exclusively
for housing for natural persons who reside on the Property for at least nine (9) months per
calendar year and use the Property as his, her or their primary residence (each, a "Qualified
Resident "); provided, however, that this restriction shall not apply to tenants or occupants
of the CDU. Any person residing on the Property shall be deemed to have changed his or
her domicile by becoming a resident elsewhere, or residing on the Property for fewer than
nine (9) months per calendar year without the express written approval of the County.
2. In the event that (a) title to the Property vests by descent in, or is otherwise acquired by,
any individual and/or entity who is not a Qualified Resident; or (b) Garry and Sharon fail to
be a Qualified Residents while GSSP (or any affiliate of Garry and Sharon) owns the
Property; or (c) Garry and Sharon cease to be members of GSSP and the new member or
members are not Qualified Residents, then Garry, Sharon and GSSP, jointly and severally,
shall be obligated to pay the County an amount equal to (i) the then - current EHMF
reflecting mitigation for second home use less (ii) the Current EHMF Payment (the
"EMT Balance "). For example, if at the time title to the Property vests in a individual
who is not a Qualified Resident the then - current EHMF reflecting mitigation for second
home use is $25,000.00, the EHMF Balance owed to the County would be $19,674.00 (i.e.,
$25,000.00 less the Current EHMF Payment of $5,326.00.) Upon payment of the EHMF
Balance to the County, this Agreement shall terminate and the County shall execute and
deliver to Garry, Sharon and GSSP such documents in recordable form as Garry, Sharon
and GSSP may require to evidence the termination of this Agreement and the release of the
Property from the provisions hereof.
3. Gamy and Sharon shall provide written notice to the County if they sell, assign or otherwise
convey a controlling interest in GSSP. Such notice shall identify the purchaser or assignee
and specify whether or not the purchaser or assignee is a Qualified Resident. If the
purchaser or assignee is not a Qualified Resident, Garry, Sharon and GSSP shall be
required to pay the County the EHMF Balance. If the purchaser or assignee is a Qualified
Resident, the purchaser or assignee shall provide such documentation as the County may
reasonably require for the purchaser or assignee to demonstrate his, her or their status as a
Qualified Resident. If the purchaser or assignee demonstrates his, her or their status as a
Qualified Resident, the purchaser or assignee shall automatically be deemed to have
assumed Garry and Sharon's obligations under this Agreement, and Garry and Sharon shall
be released from, and thereafter shall have no liability in connection with, this Agreement.
In such case, upon request of any of the County, Garry, Sharon, GSSP or the purchaser or
assignee, the parties shall execute and deliver such amendments, replacements or other
documents as may be reasonably required by any party to evidence the purchaser or
assignee's assumption of Garry and Sharon's obligations under this Agreement and Garry
and Sharon's release from this Agreement.
4. In the event the Property is sold and/or conveyed without compliance herewith, such sale
and/or conveyance shall be wholly null and void and shall confer no title whatsoever upon
the purported purchaser. Each and every conveyance of the Property, for all purposes, shall
be deemed to include and incorporate by this reference, the covenants herein contained,
even without reference therein to this Agreement.
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(a) Notices. Any notice, consent or approval which is required to be given hereunder
shall be given by mailing the same, certified mail, return receipt requested, properly
addressed and with postage fully prepaid, to any address provided herein or to any
subsequent mailing address of the party as long as prior written notice of the change of
address has been given to the other parties to this Agreement.
Said notices, consents and approvals shall be sent to the parties hereto at the following
addresses unless otherwise notified in writing:
To County: Pitkin County Manager
530 East Main, 3rd Floor
Aspen, Colorado 81611
To Garry, Sharon or GSSP: GSS Properties, LLC
P.O. Box 3377
Basalt, CO 81621
Attn: Garry Snook
With a Copy to: Chris LaCroix
Garfield & Hecht, P.C.
601 E. Hyman Ave.
Aspen, CO 81611
(b) Exhibits. Any exhibits attached hereto are incorporated herein and by this
reference and made a part hereof.
(c) Severability. Whenever possible, each provision of this Agreement and any other
related document shall be interpreted in such a manner as to be valid under applicable law;
but if any provision of any of the foregoing shall be invalid or prohibited under said
applicable law, such provisions shall be ineffective to the extent of such invalidity or
prohibition without invalidating the remaining provisions of such document.
(d) Choice of Law. This Agreement and each and every related document are to be
governed and construed in accordance with the laws of the State of Colorado.
(e) Runs with Land/Successors. The provisions of this Agreement shall constitute
covenants running with the Property, as a burden thereon, for the benefit of, and shall be
specifically enforceable by the parties, and their respective successors and assigns, as
applicable, by any appropriate legal action including but not limited to specific
performance or injunction.
(f) Waiver. No claim of waiver, consent or acquiescence with respect to any
provision of this Agreement shall be valid against any party hereto except on the basis of a
written instrument executed by the parties to this Agreement. However, the party for
whose benefit a condition is inserted herein shall have the unilateral right to waive such
condition, provided that such waiver is in writing.
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whose benefit a condition is inserted herein shall have the unilateral right to waive such
condition, provided that such waiver is in writing.
(g) Gender and Number. Whenever the context so requires herein, the neuter gender
shall include any or all genders and vice versa and the use of the singular shall include the
plural and vice versa.
(h) Further Actions. The parties to this Agreement agree to execute such further
documents and take such further actions as may be reasonably required to carry out the
provisions and intent of this Agreement or any agreement or document relating hereto or
entered into in connection herewith.
(i) Modifications. The parties to this Agreement agree that any modifications of this
Agreement shall be effective only when made by writings signed by both parties and
recorded with the Clerk and Recorder ofPitkin County, Colorado.
(j) Attorney Fees. In the event of any litigation arising hereunder, the prevailing
parties shall be entitled to the award of the costs thereof, together with reasonable attorney
fees.
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year above first written.
GSSP:
GSS Prope ies, LLC, a North Caro ' a limited liability company
By: e>17f BY / 4 4,1.
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A. Garry Snook, Manager Sharon M. Snook, anager
GARRY: SHARON:
A. Garry Sno h� M. Snook
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 2 of 2010
by A. Garry Snook and Sharon M. Snook, individually and as Managers of GSS Prope es, ,L LLC, a
North Carolina limited liability company.
Witness my hand and official seal.
•mmission expires:0 IV.S no it
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My Commission Expires 0111812012 i/
ACCEPTANCE BY THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
The foregoing Covenant Agreement for the Occupancy and Resale of 1555 Nettle Creek
Road is hereby adopted, accepted and approved by the Board of County Commissioners of Pitkin
County, Colorado.
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
o di /
By: / $ ,A,t.r- -
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Chair (or designee
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing instrument was r a - c - knowledged befyre me this i day of
______ , 2010, by. U' 1 D P4C D bomii-i , as Chair of the Board of
County Commissioners of Pitkin County, Colorado.
Witness my hand and official seal.
_..`.: T4'.. expires: 7 1/ / / 9
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EXHIBIT "A"
[Legal Description of Property]
H.E. SURVEY NO. 90, EMBRACING A PORTION OF SECTION 10, TOWNSHIP 9 SOUTH,
RANGE 88 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COLORADO, MORE
PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT CORNER NO. I, FROM WHICH THE CORNER OF SECTIONS 2, 3, 10 AND
11, SAID TOWNSHIP AND RANGE, BEARS NORTH 8 DEGREES 03' EAST 29.57 CHAINS
DISTANT;
THENCE SOUTH 13 DEGREES 11' EAST 11.01 CHAINS TO CORNER NO. 2;
THENCE SOUTH 56 DEGREES 27' WEST 25.65 CHAINS TO CORNER NO. 3;
THENCE NORTH 35 DEGREES 03' WEST 24.42 CHAINS TO CORNER NO. 4;
THENCE NORTH 74 DEGREES 50' EAST 3.48 CITAINS TO CORNER NO. 5;
THENCE NORTH 0 DEGREES 19' EAST 3.6 CHAINS TO CORNER NO. 6;
THENCE NORTH 89 DEGREES 13' EAST 29.58 CHAINS TO CORNER NO. 1, THE PLACE
OF BEGINNING.
COUNTY OF PITKIN, STATE OF COLORADO
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