HomeMy WebLinkAboutC09-111 Eagle Ranch Locals Housing ProgTERM SHEET 1) Re nested hearin date: First cho' e A ri17 Second choice A ril 14 ~. ,_ 2) For County Manager signature: No 3) Requesting department: Housing and Development 4) Title: AGREEMENT RE MANAGEMENT OF EAGLE RANCH LOCALS HOUSING PROGRAM , 5) Check one: Consent: On the Record: X ~ - ~ ~~ 6) Staff submitting: Alex Potente , , ..~--~---~-- 7) Puraose: Use of Housing Authority and The Valley Home Store to administer Eagle Ranch's housing program , 8) Schedule: To be effective upon execution.. 9) Financial considerations: This contract will provide revenue to the Housing Authority/Valley Home, which will pay for program staff and overhead. It will require no new staff or County expense. 9) Other• None. r~~1 ~~~ APPS V~~~ORM 8y. Eag a C©unty ttorney s Office ~y"t=~gl~ County Commissioners' Office AGREEMENT RE MANAGEMENT OF EAGLE RANCH LOCALS HOUSING PROGRAM This Agreement is made and entered into as of April 7, 2009, by and between Eagle Ranch Housing Corporation ("ERHC"), a Colorado non-profit corporation, and Eagle County Housing and Development Authority ("ECHDA"), a body corporate and politic. Recitals WHEREAS, ERHC was established to oversee and administer the Eagle Ranch Locals Housing Program (the "Program") pursuant to that certain Agreement Relating to the Annexation and Development of Property dated January 12, 1999 and recorded in the real property records of Eagle County, Colorado, on April 12, 1999, as Reception No. 692227, and the terms and conditions of the applicable form of restrictive covenant governing the purchase and sale of homes in said Program (the "Covenant"). Any capitalized term used herein without definition shall have the meaning given such term in the Covenant; and WHEREAS, the ERHC currently oversees and administers the Program and is authorized and intends to engage a manager to administer certain aspects of the Program so as to save administrative expenses and staff requirements; and WHEREAS, the Urban Land Institute recommended forming a regional housing body to address the lack of affordable housing with participation from public and private sectors throughout Eagle County; and WHEREAS, ECHDA, in amulti-jurisdictional effort, has opened centralized affordable housing clearinghouse known as The Valley Home Store, in order to provide one physical and electronic location in Eagle County to manage, .market, purchase and sell housing stock affordable to Eagle County's workforce and its senior population throughout Eagle County; and WHEREAS, ERHC has requested that ECHDA assume management of the Eagle Ranch Locals Housing Program, drawing upon existing ECHDA staff and resources. NOW, THEREFORE, IT IS AGREED BY ECHDA AND ERHC AS FOLLOWS (THE "AGREEMENT"): 1. ECHDA shall manage, as an independent contractor, the administration of the Program as provided for below. 2. ECHDA shall perform the following services: a. Administer re-sales of properties that are subject to a deed restriction in favor of ERHC (each, a "Property" and collectively, the "Properties") .according to the Program's requirements as set forth in the applicable form restrictive covenant and as directed by ERHC. Without limiting the generality of the foregoing, ECHDA shall: owner desires to sell; Compute and verify the Maximum Sales Price for any Property whose -1- ii. Notify ERHC of the receipt of notice of an Option to purchase any Property as provided in Section 5 of the Covenant and coordinate a determination of whether or not to exercise such option with ERHC; and the Covenant. iii. Ensure compliance by a selling Owner of the provisions of Section 6 of b. ECHDA will make its usual and customary brokerage services available to any selling Owner. If a selling Owner engages ECHDA to list and market Owner's deed restricted property, then ECHDA shall do so through staff at The Valley Home Store in compliance with the Covenant; c. Notify ERHC in the event that foreclosure has been filed, or if ECHDA learns that foreclosure may be imminent, against any Property, and thereafter perform those actions that ERHC and ECHDA agree are advisable to prevent deed restricted units from being lost to foreclosure, which may include the repurchase of such units using available funds; d. Provide technical assistance and support (e.g., facilitate FHA approval of form deed restrictions); Administer deed-restriction and Program requirements; f. Keep and provide quarterly to ERHC accurate and complete record of listing, marketing and contact activities for related properties and an accounting of all funds received and expended by ECHDA in performance of this Agreement, which records ECHDA will make available to ERHC on demand; g. Facilitate conversion to the current Covenant (and recording) at each closing; h. Make timely funding requests for ERHC Board consideration; Covenant; Provide Certificates of Compliance to sellers to be recorded at closings per the j. Provide timely, equal and non-discriminatory sales and marketing diligence and effort toward all available locals housing products administered by The Valley Home Store; and k. In general, cooperate in good faith with ERHC to manage and implement the Program in accordance with the terms of ERHC's governing documents, the Covenants, and any and ali other documents governing the Program. 3. ECHDA shall be compensated for its provision of services by charging fees, as follows: a. ERHC shall pay to ECHDA a fee not to exceed one-half of one percent (0.5%) of the final sales price of each Property sold during the term of this Agreement as administration fee for services provided by ECHDA pursuant to this Agreement. The administration fee shall be payable whether or not an owner enters in to a listing agreement with the Valley Home Store for the marketing and sale of the Property. Such fee shall be payable as follows: i. Within fifteen (15) days after ECHDA notifies ERHC that it has received notice, from an owner of ERHC's right to exercise the Option to purchase a Property pursuant to -2- Section 5 of the Covenant, ERHC shall pay to ECHDA an amount equal to one-quarter of one percent (0.25%) of the Maximum Sales Price of the Property as a nonrefundable pre-payment on account of the administration fee; and ii. At the closing of the sale of the Property and conditioned on that closing, ERHC will pay to ECHDA an amount equal to one-half of one percent (0.5%) of the final sales price of the Property less any pre-payment made under clause 3.a.i. above. b. ECHDA shall, in addition, be entitled to collect from a selling Owner a fee not to exceed one and one-half percent (1.5%) of the sales price as a marketing fee when the selling Owner enters into a listing agreement with The Valley Home Store for the marketing and sale of a Property, which fee shall be payable only at the closing of the sale of the Property. 4. ERHC shall perform the following services pursuant to this assumption, ERHC governing documents, and the Program's requirements as set forth in the applicable form restrictive covenant: a. Collect, account for and manage Real Estate Transfer Assessment (RETA) and any other funds that may become available; b. In cooperation with ECHDA and upon its recommendation, ERHC shall determine uses of and disburse accordingly ERHC's funds including but not limited to down payment assistance, buy-downs, re-purchase, or held in reserve; c. Provide ECHDA and the Valley Home Store staff timely response for down payment assistance, buy-down, re-purchase and other Program requests; and d. Refer all inquiries from selling Owners to the Valley Home Store; 5. The Agreement may be terminated upon 60 days notice by either party without cause. If ERHC terminates the Agreement, ECHDA shall be entitled to recover from ERHC any fees due with respect to any pending listing agreements existing at the time of termination, provided such property closes. 6. Miscellaneous Provisions. a. The invalidity or unenforceability of any provision of the Agreement shall not affect the other provisions hereof, and the Agreement shall be construed as if such invalid or unenforceable provision was omitted. b. Nothing in the Agreement is intended to create or grant to any third party or person any right or claim for damages or the right to bring or maintain any action at law. c. Adoption of the Agreement in no way waives any immunity at law, including immunity granted under the Colorado Governmental Immunities Act. d. The Agreement is contingent upon all funds necessary for the performance of the Agreement being budgeted, appropriated, and otherwise made available. Any financial obligations that may arise hereunder, whether direct or contingent, shall only extend to payment of monies duly and lawfully appropriated by the governing bodies of the adoptive entities hereto. -3- Nothing in this Agreement shall constitute an obligation by either party to enter into amulti-year fiscal obligation. e. Any notices or other communications required or permitted to be given hereunder shall be given in writing and delivered personally or by electronic mail to the attention of the individual signatories below and as provided for below, or to such other address as any of the adoptees designate by written notice. Notice shall be deemed given on the date of delivery. To Eagle Ranch Housing Corporation: Eagle Ranch Housing Corporation Attention: President P.O. Box 5905 Eagle, CO 81631 Email: dkerkling@eastwestresorts.com With a copy to: Gregory W. Perkins Sherman & Howard L.L.C. 1000 South Frontage Road West Suite 200 Vail, Colorado 81657 gperkins@shermanhoward. com To Eagle County: Eagle County Housing Department: Managing Director Post Office Box 179 Eagle, CO 81631-0179 echousing@eaglecounty.us with a copy to: Eagle County Attorney Post Office Box 850 Eagle, CO 81631 attorney@eaglecounty.us f. The Agreement has been drafted equally by all parties hereto. All parties hereto have read, reviewed, and understand the Agreement. The parties hereto have each received legal advice from their respective counsel regarding this Agreement. g. The Agreement constitutes a valid and binding agreement of the parties, enforceable against each in accordance with its terms. The persons executing this document on such party's behalf have actual .power and authority to bind their respective entities and to execute and deliver this Agreement. h. The Agreement contains the entire agreement between the parties, and no agreement shall be effective to change, modify, or terminate in whole or in part unless such -4- agreement is in writing and duly signed by the party against whom enforcement of such change, modification or termination is sought. i. The Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes any and all prior agreements, proposals, negotiations, and representations pertaining to the obligations to be performed hereunder. j. The Agreement shall be governed by the laws of the State of Colorado. Jurisdiction and venue of any suit, right, or cause of action arising under, or in connection with, the Agreement shall be exclusively Eagle County, Colorado. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, a body corporate and politic Sara J. Fisher, C airman EAGLE RANCH HOUSING CORPORATION, a Colorado non-profit corprdration Dean W. Kerkling, President -5-