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Home My WebLink AboutC09-072 Stratton FlatsUse for Eagle River Water & Sanitation District Employees at Stratton Flats. PRIORITY RESERVATION AGREEMENT REGARDING DEED RESTRICTED HOUSING ON STRATTON FLATS This PRIORITY RESERVATION AGREEMENT REGARDING DEED RESTRICTED HOUSING ON S RATTON FLATS (the "Agreement") is entered into to be effective as of the ~~th day of G,1~ , 2009, by and between THE EAGLE COUNTY HOUSING AND D VELOPMENT AUTH TY, a body corporate and politic ("Eagle County Housing and Development Authority") EAGLE RIVER WATER & SANITATION DISTRICT, aquasi- municipal corporation and political subdivision of the State of Colorado ("Reserving Party"). RECITALS WHEREAS, Eagle County Housing and Development Authority, as a successor- assignee of Eagle County, Colorado, a body corporate and politic ("Eagle County"), Meritage JFA Gypsum, LLC, a Colorado limited liability company, and Stratton Flats, LLC, a Colorado limited liability company, previously entered into that certain Agreement to Provide Deed Restricted Housing on Stratton Flats dated January 15, 2008, First Amendment to Provide Deed Restricted Housing on Stratton Flats dated February 28, 2008, and Second Amendment to Provide Deed Restricted Housing on Stratton Flats dated October 14, 2008 (collectively, the "Deed Restricted Housing Agreement"). WHEREAS, the Deed Restricted Housing Agreement provides for Stratton Flats, LLC's acquisition and construction of a residential development on the Property described herein, consisting of 152 single family homes, 118 townhomes, and 69 condominium units, together with certain onsite and offsite improvements (collectively, the "Project"). WHEREAS, for purposes of this Agreement, the single family homes, townhomes, and condominium units are referred to collectively herein as "Units", and each separately is referred to herein as a "Unit". WHEREAS, among other things, the Deed Restricted Housing Agreement obligates Stratton Flats, LLC to perform the Project and sell a portion of the Units subject to certain restrictions upon the initial sales price of the Units and subsequent resale price of the Units as more fully defined herein as Restricted Workforce Housing Units and Workforce Housing Units (collectively the "Deed Restricted Units"), and to sell the Deed Restricted Units to purchasers identified by The Eagle County Housing and Development Authority who either meet certain income and/or residency requirements specified by The Eagle County Housing and Development Authority or meet certain income and/or residency requirements specified by the Town of Gypsum, Colorado. WHEREAS, in the course of performing the Project, Stratton Flats, LLC shall make certain quantities and types of the Deed Restricted Units available for purchase in releases (each individually, a "Release"). WHEREAS, the Deed Restriction Housing Agreement provides that employers may only purchase a Deed Restricted Unit upon approval by The Eagle County Housing and Development Authority. {00182083.DOC / 2} {February 24, 2009 WHEREAS, the Deed Restriction Housing Agreement provides that the Eagle County Housing and Development Authority may grant "Priority Reservation Rights" as provided for herein to employers in negotiating for the purchase and sale of any Deed Restricted Units. WHEREAS, the Eagle County Housing and Development Authority desires to allow employers in Eagle County to be able to obtain housing for their workforce pursuant to the terms and conditions of this Agreement; WHEREAS, by this Agreement, the Eagle County Housing and Development Authority and Reserving Party desire to provide for either Reserving Party's (or its Qualified Designee's) priority right to negotiate for the purchase one or more Deed Restricted Units from Stratton Flats, LLC. 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. Certain Additional Definitions. For purposes of this Agreement, the following capitalized terms shall have the following meanings: (a) "Property" shall mean the land legally described on Exhibit A, attached hereto and incorporated herein by reference, and all appurtenances, improvements, and fixtures associated therewith, commonly known as "Stratton Flats". (b) "Qualified Designee" shall mean any third party identified in writing by Eagle River Water & Sanitation District to the Eagle County Housing and Development Authority who meets the requirement set forth in the deed restriction attached hereto as Exhibit "B" or "C") (collectively the "Deed Restriction") as determined by the Eagle County Housing and Development Authority. The Qualified Designee may negotiate with Stratton Flats, LLC for the purchase of a Deed Restricted Unit. (c) "Pre-Release Notice" shall mean written notice from the Eagle County Housing and Development Authority to Reserving Party of Stratton Flats, LLC's intention to offer for sale of certain Deed Restricted Units in the Project as described in a Release Notice for future Releases. (d) "Release Notice" shall mean written notice from Stratton Flats, LLC to the public of Stratton Flats, LLC's intention to offer for sale of certain Deed Restricted Units in the Project. (e) "Workforce Housing Unit" or "WHU Unit" shall mean a Deed Restricted Unit subject offered for sale to a Qualified Designee. 2. Reservation Fee. Contemporaneous with this Agreement, Reserving Party has paid to The Eagle County Housing and Development Authority in good funds anon-refundable "Reservation Fee" in the total amount of $_25000 ,based upon a reservation price of $ o~~~ ~" per Deed Restricted Unit. In consideration of Reserving Party's payment of the Reservation Fee to the Eagle County Housing and Development Authority, Reserving Party (or its Qualified Designee), is hereby granted a Priority Reservation 2 Right as defined in Section 3 herein for the purchase and sale of a total of _ Deed Restricted Units in the Project, which Deed Restricted Units shall be of the following types and amounts: Unit Type Quantity Deed Restriction Type Quantity Single Family Home(s) WHU Unit(s) 4 Townhome(s) RWH Unit(s) (non-income capped) _ RWH Unit(s) (income capped) _ WHU Unit(s) 6 Condominium(s) RWH Unit(s) (non-income capped) RWH Unit(s) (income capped) WHU Unit(s) TOTAL 10 Reserving Party's Reservation Fee is non-refundable to Reserving Party and shall not be applied to any purchase price paid by Reserving Party (or its Qualified Designee) purchase of a Deed Restricted Unit from Stratton Flats, LLC. The Reservation Fee will be utilized by the Eagle County Housing and Development Authority to maintain the overall affordability of the Project and shall not be returned to Reserving Party for any reason except those set forth in Section 18 herein. 4. .Priority Reservation Rights. The Reserving Party's priority right to negotiate with Stratton Flats, LLC for the purchase and sale of any Deed Restricted Unit described immediately above shall be based upon afirst-in-time priority system. Under such system, with respect to any Release, and prior to Stratton Flats, LLC's publication of a Release Notice to the public for a particular Release, Stratton Flats, LLC shall first deliver aPre-Release Notice to Reserving Party and to any other party who has entered into a Priority Reservation Agreement with the Eagle County Housing and Development Authority that sets forth a written description of all Deed Restricted Units to be offered for sale by Stratton Flats, LLC in a particular Release of the Project. a. Reserving Party's Right to Negotiate for Purchase of Deed Restricted Unit(s). For a period of five (5) business days after Stratton Flats, LLC's delivery of aPre-Release Notice, Reserving Party shall have anon-exclusive right, together with any other party who has entered into a Priority Reservation Agreement with the Eagle County Housing and Development Authority, to negotiate with Stratton Flats, LLC for Reserving Party (or its Qualified Designee), to purchase any Deed Restricted Unit or Units having the Unit Type and Deed Restriction Type reserved by Reserving Party as described in Paragraph 2 above. b. Standard Purchase Agreement. In the event that during such five (5) day period, Reserving Party successfully negotiates with Stratton Flats, LLC for Reserving Party's purchase of any such Deed Restricted Unit, then for each such Deed Restricted Unit, the Reserving Party's priority reservation of Deed Restricted Units with respect to future Releases and Pre-Release Notices shall be correspondingly reduced to reflect such successful negotiation. Reserving Party's (or its Qualified Designee's) successful negotiation for the purchase of a Deed Restricted Unit shall be evidenced by a written agreement between Reserving Party (or its Qualified Designee) and Stratton Flats, LLC for the purchase of such Deed Restricted Unit, which written agreement shall be a uniform, standard form purchase and sale agreement offered to all purchasers of Deed Restricted Units, providing for an earnest money deposit of Three Thousand Dollars and no/100 ($3,000.00), and at sales prices applicable to other situated Deed Restricted Units which are subject only to price adjustments which take into certain upgrades and modifications to the Deed Restricted Unit requested by Reserving Party (or its Qualified Designee) (a "Standard Purchase Agreement"). c. Stratton Flats, LLC's Rights to Release Deed Restricted Units to Public. For any Deed Restricted Unit types reserved by Reserving Party (or its Qualified Designee) described in aPre-Release Notice for which Reserving Party (or its Qualified Designee) does not successfully negotiate for the purchase of such Deed Restricted Unit(s) pursuant to a Standard Purchase Agreement within such five (5) day period, then Stratton Flats, LLC shall be free to issue a Release Notice which includes any such Deed Restricted Unit, and shall be thereafter free to market for sale, solicit offers, and negotiate for the purchase and sale of any such Deed Restricted Unit to members of the public. In the event the Reserving Party shall not successfully negotiate for the purchase, the Reserving Party's number of priority reservations of Deed Restricted Units with respect to future Releases and Pre-Release Notices shall remain the same. d. Duration of Reservation Rights. Reserving Party's Priority Reservation Rights with Stratton Flats, LLC for the purchase of the Deed Restricted Unit(s) as described herein shall remain in effect until the earliest of: (1) Reserving Party (or its Qualified Designee) enters into a Standard Purchase Agreement with Stratton Flats, LLC for the purchase and sale of each such Deed Restricted Unit(s) described herein; or (2) Stratton Flats, LLC has sold out of a particular Unit type and Deed Restriction type; or (3) the expiration of the term of this Agreement. 5. Term. The term of this Agreement shall be for a period of time which commences with the date of this Agreement, and ends on January 1, 2012. 6. Reserving Party's Obligation to Maintain Deed Restriction. In connection with a Reserving Party's Qualified Designee's purchase of a Deed Restricted Unit, that Deed Restricted Unit shall be subject to a recorded Deed Restriction. In no event shall Reserving Party sell to a party other than a Qualified Designee, and in no event shall the Reserving Party release the Deed Restriction without the prior written consent of the Eagle County Housing and Development Authority. 7. Amendments. This Agreement is subject to amendment only by the written consent of both of the parties. Any amendment will be effective as of the date provided in the amendment. 8. Notices. All notices hereunder will be in writing and will be deemed to have been given on the third day after mailing if mailed by Certified Mail, postage prepaid, and properly addressed to the parties as set forth below, or upon the day of delivery if delivered in person to the parties. Any such notice will be given to all of the following addresses: As to the Eagle County Housing and Development Authority: 4 Eagle County Attorney 500 Broadway Box 850 Eagle, Colorado 81631 Fax: 970.328.8699 Email: bryan.treu@eaglecounty.us With a copy to: Eagle County Managing Director: Housing and Development 500 Broadway Box 850 Eagle, Colorado 81631 Fax: 970.328.8699 Email: alex.potente@eaglecounty.us As to Reserving Party: ~ I~ ~~l°I/ VViI OQr/ ~ OC~ldY1~~~~(~/1, Email: Either party may change its address for purposes hereof, by giving notice to the other parties as set forth above. 10. Entire Agreement. This Agreement constitutes the entire agreement between the parties; it supersedes any prior agreement or understandings among them, oral or written, all of which are hereby canceled. 11. Headings and Gender. The headings in this Agreement are inserted for convenience of reference only and will not affect interpretation of this Agreement. Wherever from the context it appears appropriate, each term stated in either the singular or the plural will include the singular and the plural, and pronouns stated in either the masculine or the neuter gender will include the masculine, the feminine, and the neuter. 12. Amendments. This Agreement is subject to amendment only by the written consent of both of the parties. Any amendment will be effective as of the date provided in the amendment. 13. Payment or Performance on Saturday, Sunday or Holiday. Whenever the provisions of this Agreement call for any payment or the performance of any act on or by a date that is not a Business Day, including the expiration date of any cure periods provided herein, then such payment or such performance shall be required on or by the immediately succeeding Business Day. For the purposes of this Agreement, the term "Business Day" shall mean a day other than a Saturday, Sunday or legal holiday in the State of Colorado. 14. Governing Law; Severability of Provisions; Mutual Drafting; Venue. It is the intention of the parties that the laws of the State of Colorado as the same may be amended from time to time, will govern the validity of this Agreement, the construction of its terms, and interpretation of the rights and duties of the parties. If any provision of this Agreement is held to be invalid, the 5 remainder of this Agreement will not be affected thereby. This Agreement shall have been deemed to be drafted by all parties hereto. The exclusive venue for all disputes arising from or relating to this Agreement shall be Eagle County Colorado. 15. Binding Provisions. The covenants and agreements contained herein will be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and permitted assigns of the respective parties hereto. 16. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument. 17. Restriction on Assignment. With the exception of a Qualified Designee, Reserving Party may not assign, convey or otherwise transfer any portion of its interest under this Agreement without the Eagle County Housing and Development Authority's prior written consent, which the Eagle County Housing and Development Authority may withhold in its sole and absolute discretion. This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof. 18. The Eagle County Housing and Development Authority Liability. The Eagle County Housing and Development Authority's only obligations with respect to this Agreement are as follows: 1) grant the Reserving Party the right to negotiate for the purchase of Deed Restricted Units on its behalf or that of its Qualified Designees and 2) grant Priority Reservation Rights to the Reserving Party in negotiating for the purchase and sale of any Deed Restricted Units. The County shall not be liable for the conduct or actions of Stratton Flats, LLC in carrying out any of its functions regarding the purchase and sale of Deed Restricted Units, including but not limited to, giving any required notifications, negotiating, or in any other matters set forth herein or related to the transfer of Deed Restricted Units. Additionally, any recovery by Reserving Party against the Eagle County Housing and Development Authority for any violations of this Agreement shall be specifically limited to the return of the Reservation Fee. The Eagle County Housing and Development Authority shall have no financial liabilities for costs, fees, lost income, lost profit, loss revenue, or any other incidental or consequential damages beyond the amount of the Reservation Fee. 19. No Recording. Reserving Party will not record this Agreement or any memorandum of or other reference to this Agreement in the real estate records of Eagle County, Colorado. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. 6 EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY A body corporate and politic, by and through its Board of Commissioners .-- By: Sara J. Fisher, Ch irman ~ ~ Date EAGLE RIVER WATER & SANITATION DISTRICT Aquasi-municipal corporation and political subdivis' a State o ado Dennis Gelvin, General Manager ~-z~-o9 Date 7 Exhibit A (Legal description of the Property) PARCEL A, AMENDED LEHMANN PARCELS, ACCORDING TO THE "AMENDED EXEMPTION PLAT, LEHMANN PARCELS" FILED JUNE 30, 2006 AT RECEPTION NO. 200617646, COUNTY OF EAGLE, STATE OF COLORADO, AND THE RESUBDIVISION THEREOF ACCORDING TO THE "PRELIMINARY PLAT OF STRATTON FLATS PLANNED UNIT DEVELOPMENT", RECORDED MARCH 21, 2008 UNDER RECEPTION NO. 200806089, EAGLE COUNTY, COLORADO, AND THE "FINAL PLAT OF STRATTON FLATS PLANNED UNIT DEVELOPMENT, FILING 1" RECORDED MARCH 21, 2008 UNDER RECEPTION NO. 200806090 IN THE EAGLE COUNTY RECORDS, AND ANY SUPPLEMENTS AND/OR AMENDMENTS THERETO. 8