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HomeMy WebLinkAboutECHDA22-03 Spring Creek_First Amendment CovenantFIRST AMENDMENT TO EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY RENTAL AND OCCUPANCY COVENANT (Spring Creek II) This First Amendment to Rental And Occupancy Covenant (this "Amendment") is made as of April [95 1, 2022, between SPRING CREEK II LLC, a Colorado limited liability company ("Owner"), owner of certain property described in Exhibit A, and EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, a public body, corporate and politic ("ECHDA"). Background A. Owner granted ECHDA a Rental and Occupancy Covenant in a document dated February 8, 2021, which was recorded February 10, 2021 at Reception Number 202102922 in the real property records of Eagle County, Colorado ("Original Covenant"). B. Owner and ECHDA now desire to amend certain terms of the Original Covenant. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and ECHDA agree as follows: 1. Section 1 of the Original Covenant is hereby amended and restated in its entirety as follows: "Rent Limitations. During the period commencing on the date of recording hereof and lasting in perpetuity (the "Affordability Period'): (a) thirty-three (33) Units shall have rents not exceeding thirty percent (30%) of the adjusted income of a family whose annual income equals eighty percent (80%) of AMI, as determined by the Secretary of Housing and Urban Development ("HUD"), with adjustments for the number of bedrooms in the Unit, and shall be occupied by individuals or families whose income is one -hundred and fifty percent (150%) or less of the area median income for the Eagle County, Colorado area ("AMi" ), with adjustments for smaller and larger families (the "150% AMI Units"); and (b) of the remaining ninety-nine (99) Units, (i) at least twenty-seven (27) Units shall have rents not exceeding thirty percent (30%) of the adjusted income of a family whose annual income equals eighty percent (80%) of AMI, as determined by HUD, with adjustments for the number of bedrooms in the Unit, and shall be occupied by individuals or families whose income is eighty percent (80%) or less of AMI, with adjustments for smaller and larger families, and (ii) the remainder of the Units shall have rents not exceeding thirty percent (30%) of the adjusted income of a family whose annual income equals eighty percent (80%) of AMI, as determined by HUD, with adjustments for the number of bedrooms in the Unit, and shall be occupied by individuals or families whose income is one -hundred percent (100%) or less of AMI, with adjustments for smaller and larger families." Eagle County, CO 202205984 Regina O'Brien 04/06/2022 Pgs: 7 09:53:58 AM REC: $0.00 DOC, $0.00 2. Section 2 of the Original Covenant is hereby amended and restated in its entirety as follows: "Term. This Covenant shall encumber the Units at the Property in perpetuity. The Units described in section 1(b) are collectively referred to herein as the "Low -Income Units." For purposes of C.R.S. Title 29, Article 4, Part 2, ECHDA has determined that all of the Low - Income Units qualify as held open for occupancy by "persons of low income." Notwithstanding anything to the contrary contained in this Covenant, transfer of ownership by a deed -in -lieu of foreclosure, assignment in lieu of foreclosure, or via foreclosure shall be conclusive evidence that this Covenant and restrictions hereunder have terminated and are no longer of any force or effect and Owner and its successors and assigns hereby indemnify any party relying hereon without further certification. The ECHDA and/or the Owner shall upon request deliver a certificate or other documentation evidencing that this Covenant and all restrictions hereunder are terminated on the date of such foreclosure, or deed or assignment in lieu of foreclosure." 3. Section 4(a) of the Original Covenant is hereby amended and restated in its entirety as follows: "The Owner shall annually provide to ECHDA a written certification as to the continuing compliance of the Project with requirements of this Covenant. To the extent Owner provides the information required under this Covenant to another agency, such as CHFA, ECHDA agrees to accept a copy of the relevant portion of the materials provided by Owner to CHFA to meet ECHDA's annual compliance reporting requirement; provided, however, that all compliance monitoring for the 150,0' AMI Units will be conducted by ECHDA, not CHFA." 4. Section 6 of the Original Covenant is hereby amended and restated in its entirety as follows: "Enforcement. This Covenant may be enforced by ECHDA or appropriate representatives thereof. In the event of any failure of the Owner to comply with the provisions of this Covenant, ECHDA shall inform the Owner by written notice of such failure and provide the Owner a period of time in which to correct such failure. If any such failure is not corrected to the satisfaction of ECHDA within the period of time specified by ECHDA, which shall be at least thirty (30) days after the date any notice to the Owner is mailed, or within such further time as ECHDA determines in its reasonable discretion is necessary to correct the violation, but not to exceed any limitations set by applicable regulations, without further notice ECHDA may declare a default under this Covenant effective on the date of such declaration of default, and ECHDA may (i) apply to any state court for specific performance of this Covenant or an injunction against any violation of this Covenant; (ii) secure the appointment of a receiver to operate the Project in compliance with this Covenant; or (iii) exercise any other remedies at law or in equity or any such other action as shall be necessary or desirable to correct non-compliance with this Covenant; provided that, for any period of time during which the Property secures a loan held or insured by Fannie Mae, then notwithstanding anything in this Covenant to the contrary, ECHDA may not, without Fannie Mae's prior written consent, secure the appointment of a receiver to operate the Project." 5. Except as amended by this Amendment, the terms of the Original Covenant remain in full force and effect. (The balance of this page is intentionally left blank.) The parties have caused this Amendment to be duly executed as of the day and year first above written. OWNER SPRING CREEK 11 LLC, a Colorado limited liability company By: Spring Creek Apartments LLC, Manager By: Stone Valley, LLC, Manager By: Jef ry M. Span Mem er STATE OF COLORADO } ss. COUNTY OF EAGLE ) Acknowledged, subscribed and sworn to before me on this -4 day of ALW61 2022, by CwH T-,-w-Fyrm as Aanag4ftg Member of Polar Star Development, LLC, as Manager of Spring Ceek Apartments LLC, as Manager of Spring Creek 11 LLC. 3c e�9 - SdWitness m and �fcne� ea . My commission expires: e -� - ?a-. LAUREEN SLiCKENSTAFF NOTAgf PUBLIC N tary Public STATE OF COLORADO NOTARY ID 20054026538 My Commission Expires August 8, 2022 ECHDA EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY a public body, corporate and politic By:_ vlyp OName:,. (f !��► .- . STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Acknowledged, subscribed and sworn to before me on this s day of AwN , 2022, by s Ch9 jr of Eagle County Housing and Development Authority, a public bo , corporate and politic. Witness my hand and official seal. My commission expires: kLu Notary Public CHRISTINA M. AND! Ews NOTARY PUSUC STATE OF COLORADO NOTARY Ib 20184o33352 W WNIMISS ION EXPIRES AUG. 21, 2022 EXHIBIT A Legal Description of Property PARCEL 12, THIRD AMENDMENT TO THE FINAL PLAT STRATTON FLATS PLANNED UNIT DEVELOPMENT FILING NO. 1, ACCORDING TO PLAT THEREOF RECORDED JULY 27, 2020 UNDER RECEPTION NO. 202012022, COUNTY OF EAGLE, STATE OF COLORADO. and PARCEL 14B AND TRACT V-2, MINOR PLAT AMENDMENT PARCEL 14A AND PARCEL 14B, AND TRACT V-I AND V-2, ACCORDING TO THE PLAT THEREOF RECORDED OCTOBER 26, 2018 UNDER RECEPTION NO. 201818368, COUNTY OF EAGLE, STATE OF COLORADO.