HomeMy WebLinkAboutC21-217 10 Acre HoldingsCOUNTY OF EAGLE, STATE OF COLORADO
HOUSING AGREEMENT
FOR
THE 10 ACRE PUD PLANNED UNIT DEVELOPMENT
File Number: PDSP-9012
WHEREAS, on or about February 6, 2019, 10 Acre Holdings, LLC, a Colorado limited
liability company (hereinafter referred to as the “Applicant”), did file an application with the Eagle
County Department of Community Development, State of Colorado, pursuant to Article 5 of the
Eagle County Land Use Regulations, for a Sketch and Preliminary Plan for the 10 Acre PUD
Planned Unit Development (the “PUD”), File No. PDSP-9012; and,
WHEREAS, the Applicant requested approval of a consolidated Sketch and Preliminary
Plan for the 10 Acre PUD (the “Sketch/Preliminary Plan for PUD”) for a proposed development
consisting of 5 single-family residential dwelling units and allowing for 4 accessory dwelling units
(“ADU”) on a 10.02-acre site located on Willits Lane in unincorporated Eagle County, as more
particularly described on Exhibit A attached hereto (the “Property”); and,
WHEREAS, on August 25, 2020, the Eagle County Board of County Commissioners
(the “Board”) approved Applicant’s Sketch/Preliminary Plan for PUD with conditions, as set
forth in Eagle County Resolution No. 2021-12 (“Resolution”); and,
WHEREAS, as part of the approval of Applicant’s Sketch/Preliminary Plan, the Board
approved the Planned Unit Development Guide for 10 Acre PUD (the “PUD Guide”), recorded
at Reception No. 202104169 and re-recorded at Reception No. 2021-5645 in the Eagle County
Clerk and Recorder’s Office; and,
WHEREAS, the PUD Guide and the PUD Agreement require the Applicant to work with
Eagle County Housing and Development Authority and Habitat for Humanity of the Roaring
Fork Valley, Inc. (the “HFH RFV”) to fulfill its obligations pursuant to Eagle County housing
requirements; and,
WHEREAS, the Applicant, the Eagle County Housing and Development Authority (the
“ECHDA”) and the HFH RFV hereby enter into this Housing Agreement (hereinafter referred to
as the “Agreement”) to fulfill the PUD Guide housing plan; and,
WHEREAS, this Agreement provides for the terms of the housing plan in accordance
with the PUD Guide, the PUD Agreement and the Eagle County Land Use Regulations (the
“ECLUR”) as between ECHDA, Eagle County, Colorado, HFH RFV and the Applicant.
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C21-217
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NOW, THEREFORE, in consideration of the PUD Guide and the PUD Agreement, and
the promises, covenants, and agreements to be kept and performed by the parties hereto, it is
agreed:
1. CONDITIONS IN THE AGREEMENT
The PUD, including the Applicant and successive owners of any part thereof, is bound to all of
the conditions placed in this Agreement.
2. HOUSING PLAN
2.1 The Applicant has agreed to the Housing Plan approved as part of the PUD, which
Housing Plan stated in the PUD Guide.
2.2 The Applicant will deposit the calculated payment in lieu fee, which is $184,987.73
(the “payment in lieu fee”), to the ECHDA prior to the recording of the 10 Acre PUD Final Plat.
ECHDA will receive the Applicant’s payment in lieu fee and acknowledge that the 10 Acre PUD
has satisfied its recommended housing mitigation. ECHDA will hold the payment in lieu fee for
five (5) years of receipt of funds.
2.3 At any point during the agreed upon five (5) year period from the date of ECHDA’s
receipt of the Applicant’s payment in lieu fee, HFH RFV may notify ECHDA, in writing, that it
has received approval of a development permit for a project that is located in the Roaring Fork
Valley in close proximity to the 10 Acre PUD (preferably in Eagle County). The project would
have to contain at least three (3) priced capped deed restricted for sale units priced at 80% AMI or
below. The written notification shall include a description of the project (location, number of units,
pricing of units) and calculation of the price gap. For purposes of this housing plan, the price gap
is defined as the difference between HFH RFV costs to construct each unit and the 80% AMI initial
sales price.
2.4 If ECHDA approves of the methodology and calculation of the price gap, ECHDA
will release the funds to HFH RFV in an amount that is equal to $155,253 if the 10 Acre PUD Final
Plat is approved on or before the last day of June of 2022. If the 10 Acre PUD Final Plat is approved
December 31, 2025, that amount is defined as equal to the payment in lieu fee. For any dates
between June 30, 2022 and December 31, 2025, that amount shall be calculated on a daily pro rata
share based on the aforementioned amounts and dates. ECHDA will refund the remaining payment
in lieu fee balance to the Applicant. HFH RFV must deed restrict the three (3) HFH RFV units that
received the price gap funding with a perpetual price capped deed restriction and with a provision
providing for some preference for employees in Eagle County. Deed Restriction qualification and
ongoing compliance will be managed by an affordable housing provider and/or the beneficiary of
the deed restriction (i.e. HFH RFV, Aspen Pitkin County Housing Authority, Roaring Fork School
District, Garfield County Housing Authority, etc.).
2.5 In the event that RFV HFH does not notify ECHDA within the five (5) year period
of an approval of a development of at least 3 units priced at 80% of AMI in close proximity to the
10 Acre PUD, preferably in Eagle County; at that time, the entire payment in lieu fee is no longer
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restricted and ECHDA may use the payment in lieu fee to fund housing projects and initiatives in
the Roaring Fork Valley preferably in Eagle County. The Applicant will no longer be eligible for
a refund of any payment in lieu balance.
2.6 Responsibilities
2.6.1 Applicant
2.6.1.1. Applicant will deposit the calculated payment in lieu of $184,987.73 to
ECHDA prior to the recording of the project’s Final Plat. This payment in lieu will satisfy the
Applicant’s housing plan.
2.6.1.2. The Applicant agrees that ECHDA will hold the payment in lieu fee for 5
years. If ECHDA does not receive notification from RFV HFH within the 5-year period of the
approval of a development permit of at least 3 units priced at 80% of AMI (or less) in close
proximity to the 10 Acre PUD, preferably in Eagle County; at that time, the entire payment in lieu
fee is no longer restricted and ECHDA may use the payment in lieu fee to fund housing projects
and initiatives in the Roaring Fork Valley preferably in Eagle County. The Applicant will no longer
be eligible for a refund of any payment in lieu balance.
2.6.1.3. The Applicant agrees if ECHDA does receive notification from HFH RFV
that it has received approval of a development permit for at least 3 units priced at 80% (or less) of
AMI in close proximity to the 10 Acre PUD, preferably in Eagle County; and those units have a
price gap, ECHDA will release the funds to HFH RFV in an amount of $155,253 if the 10 Acre
PUD Final Plat is approved on or before the last day of June of 2022
2.6.1.4. The Applicant agrees if the price gap for three (3) units priced at 80% AMI
(or less) is less than the Applicant’s payment in lieu fee, ECHDA will refund the remaining
payment in lieu fee to the Applicant.
2.6.1.5 The Applicant agrees if ECHDA does receive notification from HFH RFV
that it has received approval of a development permit for at least three (3) units priced at 80% (or
less) of AMI in close proximity to the 10 Acre PUD, preferably in Eagle County; and those units
have a price gap, if the 10 Acre PUD Final Plat is approved between July 1, 2022 and December
31, 2025 the price gap funding amount shall be calculated on a daily pro rata share based the
following amounts $155,253 and $184,987.73 and on the aforementioned dates.
2.6.1.5. The Applicant agrees the price gap is defined as the difference between
HFH RFV costs to construct each unit and the 80% AMI initial sales price.
2.6.1.6. The Applicant agrees HFH RFV will provide a calculation of the price gap
to ECHDA, which will review the methodology and calculation of the same, and either approve
or request modifications to such calculation.
2.6.2. ECHDA
2.6.2.1. ECHDA will receive the Applicant’s payment in lieu fee and acknowledge
that the development has satisfied its recommended housing mitigation.
2.6.2.2. ECHDA will hold the payment in lieu for 5 years of receipt of funds.
2.6.2.3. If ECHDA does not receive notification from RFV HFH within the 5-year
period the approval of a development permit for 3 units priced at 80% of AMI in close proximity
to the 10 Acre PUD, preferably in Eagle County; at that time, the entire payment in lieu fee is no
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longer restricted and ECHDA may use the payment in lieu fee to fund housing projects and
initiatives in the Roaring Fork Valley preferably in Eagle County. The Applicant will no longer be
eligible for a refund of any payment in lieu balance.
2.6.2.4. If ECHDA does receive notification from HFH RFV that it has received
approval of a development permit for least 3 units priced at 80% (or less) of AMI in close proximity
to the 10 Acre PUD, preferably in Eagle County; and those units have a price gap, ECHDA will
release the funds to HFH RFV in an amount of $155,253 if the 10 Acre PUD Final Plat is approved
on or before the last day of June of 2022.
2.6.2.5 If ECHDA does receive notification from HFH RFV that it has received
approval of a development permit for at least 3 units priced at 80% (or less) of AMI in close
proximity to the 10 Acre PUD, preferably in Eagle County; and those units have a price gap, if
the 10 Acre PUD Final Plat is approved between Ju1y 1, 2022 and December 31, 2025 the price
gap funding amount shall be calculated on a daily pro rata share based the following amounts
$155,253 and $184,987.73 and on the aforementioned dates.
2.6.2.5. ECHDA agrees the price gap is defined as the difference between HFH
RFV costs to construct each unit and the 80% AMI initial sales price.
2.6.2.6. ECHDA will review the price gap calculation and methodology submitted
by RFV HFH. ECHDA has the right to require adjustments to the calculation and methodology of
the price gap calculation before funds are released.
2.6.2.7. ECHDA will require that the three (3) HFH RFV units that received the
price gap funding are deed restricted with a perpetual price capped deed restriction, with a
provision providing for some preference for employees in Eagle County and ECHDA will review
the deed restriction prior to recording.
2.6.2.8. Deed Restriction qualification and ongoing compliance will be managed
by an affordable housing provider and/or the beneficiary of the deed restriction (i.e. HFH RFV,
Aspen Pitkin County Housing Authority, Roaring Fork School District, Garfield County Housing
Authority, etc.).
2.6.3. HFH RFV
2.6.3.1. HFH RFV may provide written notification to ECHDA that it has
received approval of a development permit for at least 3 units priced at 80% (or less) of AMI in
close proximity to the 10 Acre PUD, preferably in Eagle County at any time between ECHDA’s
receipt of the Applicant’s payment in lieu fee and 5 years.
2.6.3.2 HFH RFV agrees that if it provides notification to ECHDA that it
has received approval of a development permit for at least 3 units priced at 80% (or less) of AMI
in close proximity to the 10 Acre PUD, preferably in Eagle County; and those units have a price
gap, ECHDA will release the funds to HFH RFV in an amount of $155,253 if the 10 Acre PUD
Final Plat is approved on or before the last day of June of 2022.
2.6.3.3 HFH RFV agrees that if it provides notification to ECHDA that it
has received approval of a development permit for at least 3 units priced at 80% (or less) of AMI
in close proximity to the 10 Acre PUD, preferably in Eagle County; and those units have a price
gap, if the 10 Acre PUD Final Plat is approved between July1 , 2022 and December 31, 2025 the
price gap funding amount shall be calculated on a daily pro rata share based on the following
amounts $155,253 and $184,987.73 and on the aforementioned dates.
2.6.3.2. HFH RFV agrees notification will include description of the project
(location, number of units, pricing of units).
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2.6.3.3. HFH RFV agrees the price gap is defined as the difference between
HFH RFV costs to construct each unit and the 80% AMI initial sales price.
2.6.3.4. HFH RFV agrees ECHDA will review the price gap calculation and
methodology submitted by HFH RFV. ECHDA has the right to require adjustments to the
calculation and methodology of the price gap calculation before funds are released.
2.6.3.5. HFH RFV agrees that the three (3) HFH RFV units that receive the
price gap funding are required to be deed restricted with a perpetual price capped deed restriction,
with a provision providing for some preference for employees in Eagle County and ECHDA will
review the deed restriction prior to recording.
2.6.3.6. HFH RFV agrees the deed restriction qualification and ongoing
compliance will be managed by an affordable housing provider and/or the beneficiary of the deed
restriction (i.e. HFH RFV, Aspen Pitkin County Housing Authority, Roaring Fork School District,
Garfield County Housing Authority, etc.).
2.6.3.7 HFH RFV agrees if ECHDA does not receive notification from HFH
RFV within the 5 year period of the planning and development of at least 3 units priced at 80% (or
lower) of AMI in close proximity to the 10 Acre PUD, preferably in Eagle County; at that time the
entire payment in lieu fee is no longer restricted and ECHDA may use the payment in lieu fee to
fund housing projects and initiatives in the Roaring Fork Valley preferably in Eagle County
regardless of whether HFH RFV is involved.
3. INDEMNIFICATION
The Applicant and HFH RFV shall indemnify and hold the ECHDA and Eagle County
harmless from any and all claims made against the ECHDA and Eagle County by any contractor,
subcontractor, materialmen, employee, independent contractor, agent or representative involved in
the work necessary to comply with the Agreement, or on account of any other claims against the
ECHDA and Eagle County because of the activities conducted in furtherance of the terms of the
Agreement. This indemnification and hold harmless provision shall include any reasonable and
customary legal expenses or costs incurred by the ECHDA and Eagle County. Notwithstanding the
foregoing, the Applicant and HFH RFV shall not be liable to indemnify the ECHDA and Eagle
County for claims caused by the act or omission of the ECHDA and Eagle County without regard
to the involvement of the Applicant.
4. ECHDA AND EAGLE COUNTY INCUR NO LIABILITY
The ECHDA and Eagle County shall not, nor shall any officer or employee thereof, be
liable or responsible for any accident, loss or damage happening or occurring during execution of
the housing plan pursuant to this Agreement prior to the completion; nor shall the ECHDA or Eagle
County, nor any officer or employee thereof, be liable for any persons or property injured or
damaged by reasons of the nature of said work on the housing plan, but all of said liabilities shall
be and are hereby assumed by the Applicant or HFH RFV. The Applicant and HFH RFV hereby
agrees to indemnify and hold harmless the ECHDA and Eagle County and any of its officers, agents
and employees against any losses, claims, damages or liabilities for which the ECHDA and Eagle
County or any of its officers, agents, or employees may become subject to, insofar as any such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon
any performance by the Applicant or HFH RFV hereunder; and the Applicant and HFH RFV shall
reimburse the ECHDA and Eagle County for any and all legal and other expenses incurred by the
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ECHDA and Eagle County in connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity provision shall be in addition to any other liability
which the Applicant and HFH RFV may have.
5. GENERAL PROVISIONS
5.1 Compliance with Land Use Regulations. The Applicant and its successor or assigns
shall be required to obtain all necessary permits and comply with the provisions of the ECLUR as
the same are in effect at the time of commencement of the housing plan referred to herein.
5.2. Severability. Whenever possible, each provision of this Agreement and any other
related documents 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
provision shall be ineffective to the extent of such invalidity or prohibition without invalidating
the remaining provisions of such subsection or document.
5.3 Amendment and Modification. The parties hereto mutually agree that this
Agreement may be amended or modified from time to time, provided that such amendment or
modification is in writing and signed by the ECHDA, HFH RFV and the Applicant or the
Applicant’s successor(s) affected by any such amendment.
5.4 Assignability. This Agreement shall be enforceable against the HFH RFV and the
Applicant, provided, however, that in the event the Applicant sells, transfers or assigns all or part
of the PUD, the obligations of the Applicant under this Agreement as to that portion of the PUD
may be assumed in writing by the purchaser of the parcel, and the Applicant shall have no further
obligations hereunder. It is agreed, however, that no such assumption of these obligations shall
be effective unless the ECHDA gives its prior written approval to such assumption following an
investigation of the financial condition of the purchaser, which consent shall not be unreasonably
withheld. The Applicant shall not otherwise assign, transfer, convey, pledge or otherwise dispose
of this Agreement without prior written consent of the ECHDA, which consent shall not be
unreasonably withheld.
5.5 Binding upon Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors, and assigns.
5.6 No Rights to Third Parties. This Agreement does not and shall not be deemed to
confer upon or grant to any third party any right to claim damages or to bring any lawsuit, action
or other proceedings against either the County or its officers, employees or agents because of any
breach hereof or because of any terms, covenants, agreements or conditions contained herein.
5.7 Enforcement. At its sole option, the County may enforce the provisions of this
Agreement in the same manner and with the same remedies applicable to the enforcement of land
use regulations pursuant to the ECLUR, as they may be amended from time to time, or as otherwise
provided by law. Alternatively, the terms of this Agreement shall be enforceable by the Board or
its designee by any appropriate equitable or legal action, including but not limited to specific
performance, mandamus, abatement, or injunction. The remedies explicitly provided herein are
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cumulative, and not exclusive, of all other remedies provided by law.
5.8 Notice. Any notice required pursuant to the terms of this Agreement shall be
deemed given on the day that the same is placed in the United States Mail, postage prepaid,
certified or registered mail, return receipt requested.
Address for giving notice to County:
Eagle County Attorney's Office
P.O. Box 850
500 Broadway
Eagle, CO 81631
(970) 328-8685
Address for giving notice to ECHDA:
Eagle County Attorney's Office
P.O. Box 850
500 Broadway
Eagle, CO 81631
(970) 328-8685
Address for giving notice to Applicant:
Brian Rose
Manager
10 Acre Holdings, LLC
180 Riverside Dr.
Basalt Colorado, CO
Address for giving notice to HFH RFV:
Gail Schwartz
President
Habitat for Humanity Roaring Fork Valley
53 Calaway Court
Glenwood Springs, CO 81601
Gails@habitatroaringfork.org
970-309-1411
With copy to:
Kristen Wilmes
Habitat for Humanity Roaring Fork Valley
53 Calaway Court
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Glenwood Springs, CO 81601
Kristenw@Habitatroaringfork.org
970-309-8179
Any party may change its address for receiving notices by delivery of at least seven (7) days’ prior
notice to the other party pursuant to the foregoing provisions. With respect to any successor to
Applicant with respect to the PUD as provided in this Agreement, unless another address is
provided in writing by such successor, the notice address for such successor shall be the address
on file with the Eagle County Assessor’s Office or the address of such successor’s Registered
Agent with the Colorado Secretary of State’s Office, if applicable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
EAGLE COUNTY, COLORADO, by and through its
Board of County Commissioners
By: ______________________________
Matt Scherr, Chair
ATTEST:
____________________________
Clerk to the Board of
County Commissioners
EAGLE COUNTY HOUSING AND DEVELOPMENT
AUTHORITY:
By: _______________________________
Name: Kim Williams
Its: Executive Director
APPLICANT:
10 Acre Holdings, LLC , a Colorado limited liability
company
By: _______________________________
Name: Brian Rose
Its: General Manager
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HFH RFV:
Habitat for Humanity of the Roaring Fork Valley
By.____________________________________
Name:_________________________________
Its:____________________________________
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Gail Schwartz
President
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
A PARCEL OF LAND SITUATED IN TRACT 47, TOWNSHIP 8 SOUTH, RANGE 87 WEST
OF THE 6TH P.M.; SAID PARCEL BEING ENTIRELY WITHIN THAT PROPERTY
DESCRIBED IN THAT DOCUMENT RECORDED JUNE 12, 1985 AS RECEPTION NO.
313171 OF THE EAGLE COUNTY, COLORADO RECORDS; SAID PARCEL LYING WEST
OF THE COUNTY ROAD KNOWN AS WILLITS LANE, AS SAID ROAD WAS USED AT
THE DATE OF THE EXECUTION OF THAT CERTAIN WARRANTY DEED DATED
DECEMBER 24, 1903 RECORDED IN BOOK 65 AT PAGE 532 OF THE RECORDS IN THE
EAGLE COUNTY RECORDER'S OFFICE, AND BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID PROPERTY RECORDED AS
RECEPTION NO. 313171, SAID POINT BEING A POINT AT THE INTERSECTION OF THE
NORTH LINE OF TRACT 47 AND THE WEST EDGE OF THE ASPHALT OF SAID
WILLITS LANE (WITH ALL BEARINGS HEREIN BEING RELATIVE TO A BEARING OF
S.89°54'55"E. BETWEEN THE WITNESS CORNER FOR AP4, TRACT 47, MONUMENTED
BY A #5 REBAR AND 1.25" CAP STAMPED L.S. 14111 AND THE WITNESS CORNER
FOR AP3, TRACT 47, MONUMENTED BY A 2" ALUMINUM PIPE AND 3.25" CAP
STAMPED L.S. 28643); THENCE S.00°29'29"E., ALONG THE EASTERLY BOUNDARY
LINE OF SAID RECEPTION NO. 313171 AND SAID WEST EDGE OF ASPHALT, A
DISTANCE OF 565.16 FEET; THENCE LEAVING SAID EASTERLY BOUNDARY LINE
AND SAID WEST EDGE OF ASPHALT N.89°54'55"W., A DISTANCE OF 537.96 FEET;
THENCE N.50°44'11"W., A DISTANCE OF 143.47 FEET; THENCE N.29°38'18"W., A
DISTANCE OF 110.61 FEET; THENCE N.62°47'41"W., A DISTANCE OF 174.90 FEET;
THENCE N.00°05'05"E., A DISTANCE OF 298.71 FEET MORE OR LESS TO SAID NORTH
LINE OF TRACT 47; THENCE S.89°54'55"E. ALONG SAID NORTH LINE OF TRACT 47, A
DISTANCE OF 854.00 FEET TO THE POINT OF BEGINNING.
COUNTY OF EAGLE
STATE OF COLORADO
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