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HomeMy WebLinkAboutbocc.con.166.2015coNTRaeTxZL_0/S COVENANTAGREEMENT FOR THE OCCUPANCYAND RESALE OFLOT 1, FILING S, WIJ RANCH (Relating to Employee Housing Mitigation Fees) THIS COVENANT AGREEMENT FOR THE OCCUPANCY AND RESALE OF 125 Byers Court, Aspen, CO 81611 (the "Agreement") is made and entered into this /� day of June 2015, by Taylor Capital Ventures, LP (hereinafter referred to as "Owner"), for the benefit of the parties and enforceable by the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO (hereinafter referred to as "County"). WITNESSETH: / I WHEREAS, Owner owns the real property described as Lot 1, Filing 5, W/J Ranch. For purposes of this Agreement, the real property and all dwellings, appurtenances, improvements and fixtures associated therewith shall hereinafter be referred to as the "Property"; and WHEREAS, Owner, in order to pay an Employee Housing Mitigation Fee ("BHMF") pursuant to Ordinance No. 023-2005, agrees to restrict the acquisition or transfer of the Property to "Qualified Buyers," as that term is defined in this Agreement or to pay the EHMF which would otherwise be applicable to the Property if the Owner did not qualify as a Qualified Buyer calculated at the rate applied to Non -Qualified, Transferee(s) as that term is defined by this Agreement at the time of transfer. By this Agreement, Owner agrees to continue to meet the requirements of a "Qualified Buyer" and restrict the Property against use and occupancy inconsistent with this Agreement. WHEREAS, "Qualified Buyers" are natural persons meeting the residency qualifications set forth in the Aspen/Pitkin County Housing Authority Employee Housing Guidelines (hereinafter the "Employee Housing Guidelines"), or its substitute, as adopted by the Aspen/Pitkin County Housing Authority ("APCHA"), or its successor, and in effect at the time of the closing of the sale to the Qualified Buyer, and who must represent and agree pursuant to this Agreement to occupy the Property as their principal place of residence, not to engage in any business activity on the Property, other than that permitted in that zone district or by applicable ordinance, not to sell or otherwise transfer the Property for use in a trade or business; and to continue meeting the residency requirements as stated in this Agreement. WFIEREAS, an "Owner" is a person or persons who is/are a Qualified Buyer who acquires an ownership interest in the Property in compliance with the terms and provisions of this Agreement, it being understood that such person or persons shall be deemed an "Owner" hereunder only during the period of his, her or their ownership interest in the Property and shall be obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein during such period. I WHEREAS, this document supercedes any previous covenant agreement for occupancy and resale associated with this Property. NOW, THEREFORE, for value received, the receipt and sufficiency of which are hereby acknowledged, Owner hereby represents, covenants and agrees as follows: RECEPTION#: 620982, 06126/2015 at 09:21:12 AM, 1 OF 6, R $36.00 Doc Code COVENANTS Janice K. Vos Caudill, Pitkin County, CO The use and occupancy of the Property shall for so long as this Agreement shall remain if effect, henceforth be limited exclusively to housing for natural persons who meet the definition of Qualified Buyers and their families. 2. An Owner, in connection with the purchase of this Property must: a) occupy this Property as his or her principal place of residence during the time that such Property is owned; b) not engage in any business activity on such Property, other than permitted in that zone district or by applicable ordinance; c) sell or otherwise transfer such Property only in accordance with this Agreement and the Employee Housing Guidelines; d) not sell or otherwise transfer such Property for use in a trade or business; e) not permit any use or occupancy of such Property except in compliance with this Agreement. 'Recertification of residency and the ownership of other property shall be required as contained in the Employee Housing Guidelines. 3. 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 County, and its respective successors and assigns, as applicable, by any appropriate legal action including but not limited to specific performance, injunction, reversion, or eviction of non -complying owners and/or occupants. 4. In the event that title to the Property vests by descent in, or is otherwise acquired by, any individual and/or entity who is not a Qualified Buyer as that term is defined herein (hereinafter "Non - Qualified Transferee(s)"), the Property shall at the option of the Owner a) immediately be listed for sale at the highest bid by a Qualified Buyer under APCHA's procedures or, b) the Owner and Non - Qualified Transferee(s) shall be obligated as a precondition to the sale to a Non -Qualified Transferee to pay the County's E14W calculated at the rate of the County's affordable housing mitigation fee at the time of the sale or transfer, less the amount $6,774.00 paid by the Owner as his, her or their EHMF at the time of this Agreement. OWNER RESIDENCE AND CONTINUING COMPLIANCE The Property shall be utilized only as the principal place of residence of an Owner. 6. In the event an Owner changes domicile or ceases to utilize the Property as his principal place of residence, or otherwise ceases to be in compliance with the applicable Employee Housing Guidelines or this Agreement, at the option ®f the Qwngr, the Property a) immediately be listed for sale and the highest bid by a Qualified Buyer shall be accepted or, b) the Owner and/or Non - Qualified Transferee(s), if any, shall be obligated to pay the deferred portion of the County's EHMF calculated at the rate of the County's EHMF at the time of sale or, transfer, less the amount $6,774.00 paid by the Owner as his, her or its EHMF at the time of this Agreement. An Owner 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. 7. Upon payment of the sums required pursuant to 4 b) and 6 b) of this Agreement, as determined by the County, the County shall release this Covenant. Payment of sums calculated under 4 b) and 6 b) of this Agreement shall be due and payable at the time transfer of the Property by the Owner to a Non -Qualified Transferee. REMEDIES 9. There is hereby reserved to the parties hereto any and all remedies provided by law for breach of this Agreement or any of its terms. In the event the parties resort to litigation with respect to any or all provisions of this -Agreement, the prevailing party shall be awarded damages and costs, including reasonable attorneys' fees. 10. 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 buyer. 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. 11. In the event that the Owner fails to cure any breach, the County may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement or a mandatory injunction requiring sale of the Property by qualified Owner. The costs of such sale shall be taxed against the proceeds of the sale with the balance being paid to the Owner. GENERAL PROVISIONS 12. 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, 3' Floor Aspen, Colorado 81611 To Owner: Taylor Capital Ventures, LP P O Box 189 Taylor, MS 38673 13. Exhibits. Any exhibits attached hereto are incorporated herein and by this reference, made a part hereof. 14. 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. 15. 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. 16. Successors. Except as otherwise provided herein, the provisions and covenant contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. 17. 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. 18. 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. 19. Personal Liability. The Owner agrees that he or she shall be personally liable for any of the transactions contemplated herein. 20. 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. 21. 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 of Pitkin County, Colorado. 22. Attorneys. 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. OWNER: Christine Carothers, General Partner for Taylor Capital Ventures, LP STATE OF COLORADO ss. COUNTY OF ?j4 -l< l ry ) The foregoing instrument was acknowledged before me this day of June 2015 by C 6c.4 r,, a4 -Ax v S, Witness my hand and official seal. My commission expires: 3 /3, /S/% JOHN A. FORSTER ' NOTARY PUBLIC STATE OF COLORADO NOTARY ID 19994005341 MY COMMISSION EXPIRES MARCH 03, 2019 OWNE :6 �9 Sean B. Carothers, General Partner for Taylor Capital Ventures, LP STATE OF COLORADO ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of June 2015 by Witness my hand and official seal. My commission expires: 3 / 3 / Zd1 f o blic JOHN A. FORSTER . NOTARY PUBLIC STATE OF COLORADO NOTARY ID 19994005341 MY COMMISSION EXPIRES MARCH 03, 2019 ACCEPTANCE BY THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO The foregoing Covenant Agreement for the Occupancy and Resale of Lot 1, Filing 5, W/J Ranch of the Board of County Commissioners of Pitkin County, Colorado and its terms are hereby adopted and declared by the Board of County Cormnissioners of Pitkin County, Colorado. BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO By: , � N, f (-A (6 Zo P5— Steven F. Child Date Chair APPROVED AS TO CONTENT: C Q1 d) Houben, Date Community Development Director (or designee) John Ely Dat Cow A ey �, a �l CC)