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HomeMy WebLinkAboutC08-076First Amendment to Agreement to Provide Deed Restricted Housing on Stratton Flats This FIRST AMENDMENT (the "First Amendment ") to the Agreement to Provide Deed Restriction Housing is entered into to be effective as of the 28th day of February, 2008, by and among EAGLE COUNTY, COLORADO (the "County), MERITAGE JFA GYPSUM, LLC, a Colorado limited liability company ( "Meritage JFA Gypsum ") and STRATTON FLATs, LLC, a Colorado limited liability company ( "Stratton Flats "). RECITALS WHEREAS, the County, Meritage JFA Gypsum and Stratton Flats previously entered into that certain Agreement to Provide Deed Restricted Housing on Stratton Flats dated January 15, 2008 (the "Original Agreement "), for the purpose of defining the rights and responsibilities of the County, Meritage JFA Gypsum, and Stratton Flats regarding the development of the real property described therein ("Property'), which included an "Exhibit A" titled "Stratton Flats Budget Exhibit to Agreement to Provide Deed Restricted Housing "; and WHEREAS, by this Agreement, the County, Meritage JFA Gypsum and Stratton Flats (hereinafter the "Parties ") desire to amend the Original Agreement and Exhibit A as set forth herein. NOW, THEREFORE, for and in consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties hereby agree as follows: 1. Revised Exhibit A. The Original Agreement is hereby amended to provide that "Exhibit A" attached thereto and titled "Stratton Flats Budget Exhibit to Agreement to Provide Deed Restricted Housing" (which is sometimes referred to in the Original Agreement as the "2008 Budget ") is hereby superseded and replaced in its entirety with the "Exhibit A" attached hereto titled "First Amendment to Stratton Flats Budget Exhibit to Agreement to Provide Deed Restricted Housing" (the "Revised Budget "). The Revised Budget shall govem as to permissible sales prices and unit mix, notwithstanding Paragraph 5 of the Original Agreement or any other contrary terms and conditions of the Original Agreement. 2. Conditional Payment of Fee: Acquisition of Property. The references to the date February 28, 2008 in the first sentence of Section 1 of the Original Agreement and in Section 4(a) of the Original Agreement are hereby changed to March 21, 2008. 3. The CoBiz Loan Condition. Pursuant to Section 13 of the Original Agreement, the County's execution and delivery of this First Amendment shall confirm Eagle County's satisfaction with the terms of the Loan. 4. Allocation of Any Budget Assumption Deficiencies. The Parties have assumed that the Project will receive a $3,443,347 Impact Fee Discount from the Town of Gypsum. Additionally, as a result of certain revisions to pricing of certain Units as set forth in the Revised Budget, the amount of the Project's total estimated revenue has decreased by $232,960.82. Taken together, the $3,443,347 Impact Fee Discount and the anticipated Project revenue decrease result in a $3,676,307.82 possible project "Revenue Gap ". Pursuant to this Section 4, {00151042.DOC / 1 } {March 18, 2008 the Parties desire to set forth their agreement with respect to matters related to the Revenue Gap. a. Real Estate Brokerage Commissions. The Revised Budget's projected total 2008 Project Costs of $107,154,062 includes assumes anticipated Project costs associated with real estate brokerage commissions in the total amount of $2,078,937 (which amount is based upon assumed real estate brokerage commissions of two percent (2 %) on the sale of each Unit, with half of such total commission amount to be paid as "Co -op Commission" to any real estate agent acting as a "buyer's broker" with respect to the sale of any Unit). The Parties agree that, upon the written agreement of the Parties, the percentage amount of any Co -op Commission to be paid in connection with the sale of a Unit may be increased above such one percent (1 %) amount, notwithstanding that such increase will result in additional Project costs, which will, in turn, result in an increase in the Revenue Gap. b. Appraisal Costs. The Parties anticipate additional appraisal fees in connection with the Project in the amount of $20,000, which amount is not reflected in the Revised Budget. The Parties agree that the amount of the Revenue Gap shall be increased by the actual amount of such appraisal fees. C. Reduction in Revenue Gap. The Parties intend to reduce the Revenue Gap through: (1) anticipated impact fee waivers from the Town of Gypsum; (2) through Eagle County's solicitation of additional equity from private partners and interest savings from public partners; (3) mutually agreed upon increases in the Unit sales prices (in addition to the seven percent (7 %) annual prices currently set forth in the Revised Budget), or a combination thereof. To the extent that during the Project the Parties are nonetheless unable to eliminate the Revenue Gap, then Stratton Flats shall bear financial responsibility for one -half of the amount of Revenue Gap, and Eagle County shall bear financial responsibility for the other one -half of the Revenue Gap. Stratton Flats' responsibility for its share of the remaining Revenue Gap shall be satisfied solely by a reduction in the amount of Project revenues which would otherwise be paid to Stratton Flats from the Project, provided, however, that the amount of such reduction in Stratton Flats' Project revenue will not exceed $600,000.00. Neither Stratton Flats nor Eagle County shall be obligated to contribute cash to the Project in connection with its respective share of the Revenue Gap. 5. Marketing and Sale of Units. The last paragraph of Section 5 of the Agreement to Provide Deed Restricted Housing on Stratton Flats is hereby deleted in its entirety, and is replaced with the following: The sales prices for all Units (free- market, Eagle County deed - restricted, and Town of Gypsum deed - restricted Units) may be increased no more than 1.75% per quarter (7% per annum) from the date that the first Unit is delivered and closed. The sales prices for the free - market Units may not be raised at a lower percentage increase than the Deed - Restricted Units, unless the Parties otherwise agree in writing. The product mix and pricing as set forth in Recital B above may be modified from time to time if the Parties agree in writing. 6. Ratification. Except as expressly modified herein, the Parties confirm and ratify the terms and conditions of the Original Agreement. (00151042.DOC i 1)2 7. Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Original Agreement. 8. Counterparts. This First Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 9. Assignment. The County shall have the right to assign all of its interest in this the Original Agreement and the First Amendment to an Eagle County Housing Authority, or a similar entity, to be created by the County pursuant to C.R.S. § 29 -1 -204.5 or C.R.S. §§ 29-4 -501, et. seq. (00151042.DOC/ 1) 3 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. EAGLE COUNTY, COLORADO A body corporate and politic by and through its Board of Coun Co ners By: _ 4�tRunyon, Chair of the Board of County Commissioners, Eagle County, Colorado MERITAGE JFA GYPSUM, LLC, a Colorado limited liability company By: Medtage Development Group, LLC, a Colorado limited liability company By: sse , ' ana er STRATTON FLATS, LLC, a Colorado limited liability company By: Medtage Development Group, LLC, a Colorado limited liability company .mow {ooisioaa.noci 1}4 EXHIBIT A FIRST AMENDMENT TO STRATTON FLATS BUDGET EXHIBIT TO AGREEMENT TO PROVIDE DEED RESTRICTED HOUSING {ooisioaz.DOC/ 1}5 u w n i b J r .D r0 r0 N N N r0 O L lOA rp O �D N �p u �+ W PI rI W W NN u1�NNrA 0 N W .O r p�p�� W 1J` ,.pp � � :N Ol ii � N '•j � S Y ylt mg A 0�q0 L. 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