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Home My WebLink AboutR07-027 Amending Resolution 2006-108 Commissioner ~ moved adoption of the following resolntion: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 2007-9-::r- RESOLUTION APPROVING AND EFFECTING CORRECTIONS TO RESOLUTION NO. 2006-108 WHEREAS, on November 21, 2006 the Board of County Commissioners of Eagle County, Colorado ("Board") conditionally approved the Planned Unit Development Preliminary Plan and Zone Change for the Willits Bend Planned Unit Development; and WHEREAS, Condition 14 of such Resolution of Approval, as well as the Declaration of Restrictive Covenant - Real Estate Transfer Assessment attached to such Resolution, erroneously stated that real estate transfer assessment payments made pursuant to such Declaration should be made to Eagle County; and WHEREAS, a revised Declaration of Restrictive Covenant - Real Estate Transfer Assessment correcting the error has been prepared and is attached hereto, providing that such payments shall be made to the Affordable Housing Corporation to be created by the Owner of the Planned United Development and that collection of such payments and transmission of such payments to the Affordable Housing Corporation shall be the responsibility of the Eagle County Department of Housing. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO: THAT, the aforesaid Condition 14 be and hereby is amended to provide that such real estate transfer assessments shall be'made to the Affordable Housing Corporation, as provided in the corrected Declaration of Restrictive Covenant - Real Estate Transfer Assessment attached hereto; and THAT, the Board of County Commissioners finds, determines and declares that this Resolution is necessary for the public health, safety and welfare of the citizens of the County of Eagle, State of Colorado. MOVED, READ AND ADOPfED by the Board of County Commissioners of the County of Eagle, State of Colorado, at its regular meeting held this day of , 2007. By: Peter F. Runyon, Comm' ciJ/JLJ/) ~'_ Sara J. Fisher, Commissioner --f ~~'A../ Commissioner ~~ seconded adoption of the foregoing resolution. The roll having been called, the vote was as follows: Commissioner Am M. Menconi Commissioner Peter F. Runyon Commissioner Sara J. Fisher This Resolution passed by ~ I D vote of the Board of County Commissioners of the County of Eagle, State of Colorado. Deleted material striel{ea New material italicized DECLARATION OF RESTRICTIVE COVENANT REAL EST ATE TRANSFER ASSESSMENT This DECLARATION OF RESTRICTIVE COVENANT (hereinafter "Restrictive Covenant") is made by BLUE CROW, LLC, a Colorado limited liability company ("Owner"), effective , 2007. RECITALS A. Owner is the owner of certain property in Eagle County, Colorado, described as Lots 1 and 2, according to the Final Plat of Willits Bend Planned Unit Development recorded , 2007, in the Eagle County Clerk and Recorder's office in Plat Book _ at Page ~, as Reception No. (the "Property"). B. Owner has voluntarily agreed to impose a real estate transfer assessment, as more particularly described below, on the sale and resale of the Condominium Units that may be located on the Property in order to implement the Loeal Resident Housing l:lfld Commercial .\ffomability Plans that '{,ere approved by Eagle Comity pursuaflt to Board of COl:lflty Commissioner Resolution 2006 further the development of local resident housing and commercial affordability in Eagle County. DECLARATION FOR VALUABLE CONSIDERA nON, the receipt and sufficiency of which is hereby acknowledged, Owner hereby covenants and agrees as follows: 1. Transfer Assessment. Upon the transfer of any Condominium Unit, or interest therein, the Grantee shall pay to an entity dedicated in whole or in part to promoting affordable housing in the Roaring Fork Valley area of Eagle County (the "Affordable Housing Corporation") a transfer assessment of one percent of the Consideration paid (the "RET A"). Such assessment shall be due and payable by the grantor at the time of Transfer in accordance with the provisions hereof. Such entity shall be created by Owner in consultation with the Eagle County Housing Department. 2. as follows: Definitions. For the purposes of this Restrictive Covenant, certain words are defmed (a) Condominium Unit. . "Condominium Unit" means any condominium established on the Property, whether wholly residential, partially residential and partially commercial (live-work units), or wholly commercial, as shown on the Condominium Map approved by Eagle County and recorded in office Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 2 of the Clerk and Recorder of Eagle County, Colorado. (b) Consideration. "Consideration" means and includes the actual cash paid and/or value of the property delivered, or contracted to be paid or delivered, in return for the transfer of ownership or title to the Property and shall include the amount of any liens, mortgage, contract indebtedness, or other encumbrance, either given to secure the purchase price, or any part thereof, remaining unpaid on the Property at the time of sale. The term does not include the amount of any outstanding lien or encumbrance in favor of the United States, the State of Colorado, or of a municipal or quasi-municipal governmental corporation or district for taxes, special benefits or improvements. (c) Transfer. "Transfer" means and includes any conveyance of ownership or title to a Condominium Unit or to an interest in a Condominium Unit as evidenced by any deed or instrument or writing wherein or whereby title to a Condominium Unit is granted or conveyed, subject to the exclusions provided herein. "Transfer" for the purposes of this Restrictive Covenant means and includes the transfer of ownership interest of an entity or a partial or fractional interest therein which has as a principal asset an interest in a Condominium Unit. 3. Exemptions. The RETA imposed by this Restrictive Covenant shall not apply to: (a) Any document wherein the United States, or any agency or instrumentality thereof, the State of Colorado, any county, city and county, municipality, district or other political subdivision of the state, is either the grantor or grantee. (b) Any document wherein the grantee corporation, association or trust has been organized, operated and maintained solely and exclusively for charitable or religious purposes exempt from federal income taxation under the federal Internal Revenue Code, Sec. 501(c)(3). (c) Any document granting or conveying title to a Condominium Unit in consequence of a gift of such property, where no consideration other than love and affection or for a nominal compensation is evidenced by the terms of the instrument of transfer. (d) Any document terminating or evidencing termination of a joint tenancy in a Condominium Unit except where additional consideration of financial value Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 3 is paid in connection with such termination, or a decree or agreement partitioning a Condominium Unit held under common ownership unless consideration of financial value is paid in connection therewith. (e) Transfer of title or change of interest in a Condominium Unit by reason of death, will or decree of distribution. (1) Any deed or conveyance made and delivered without consideration for the purposes of confirming, correcting, modifying or supplementing a transfer previously recorded; making minor boundary adjustments; removing clouds on titles; granting easements, rights-of-way or licenses; reorganization of an entity; transfers between related (where one entity owns at least 50% of the other entity) entities; or transfers between persons or entities solely for estate planning purposes. (g) Any decree or order of a court of record determining or vesting title, including the final awarding of title pursuant to a condemnation proceeding. (h) Any lease of a Condominium Unit (or assignment or transfer of any interest in any such lease), provided such lease by its terms does not exceed 20 years. In the event such lease exceeds 20 years, the assessment shall be based on the capitalization at ten percent (10% ) of the average annual rental over the entire term of the lease, including any renewal term, plus actual consideration, other than rent, paid or to be paid. When the average annual rental cannot be determined, the assessment shall be based on the assessed value of the Condominium Unit covered by the lease. (i) Transfers to secure a debt or other obligation (e.g., mortgage or deed of trust), or releases of property which is security for a debt or other obligation. (j) Any executory contract for the sale of a Condominium Unit under which the vendee is entitled to or does take possession thereof without acquiring title thereto, or any assignment or cancellation of any such contract. (k) Any deed or conveyance under execution, sale, foreclosure sale under a power of sale or court decree of lien foreclosure; sheriff s deed; public trustee's deed; or treasurer's deed. 4. Application for Exemption. In the event any document providing for a transfer which is exempt from the assessment herein imposed does not contain language clearly showing its intent and character, the grantor or grantee may apply for and obtain from the Eagle County Housing Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 4 Department Director a certificate of exemption, which may be affixed to such deed or instrument of transfer. If said Director shall deny the exemption, such denial shall be considered final agency action. ~ 5. Payment and Collection of RET A. (a) Prior to presenting for recording any deed effecting a Transfer of a Condominium Unit, the grantor or any closing or other agent acting for the parties to the transaction shall payor arrange for payment of the RET A to the Eagle Calmty Department of Housing the Affordable Housing Corporation in the manner prescribed by such department as set forth in subsection (c) of this Section 5 and shall obtain a receipt or other evidence of payment. The Eagle County Department of Housing shall be the administrator for the Affordable Housing Corporation with respect to collection of the RETA and shall charge the Affordable Housing Corporation an administrative fee for processing payment of the RET A. (b) Each deed effecting a Transfer of a Condominium Unit shall contain the following provision: The property described in this Deed is subject to the Declaration of Restrictive Covenant - Real Estate Transfer Assessment recorded in the office of the Clerk and Recorder of Ea~le County, Colorado, on the _ day of ,2006, as Reception No. ("RET A Declaration"). This Deed shall not be presented to or accepted for recording by the Clerk and Recorder of Eagle County unless and until the Real Estate Transfer Assessment required by the RET A Declaration has been paid and evidence of such assessment, or of exemption from such assessment, has been provided to the Clerk and Recorder by the person or entity presenting the Deed for recording. (c) The Eagle County Housing Department Director shall prescribe and promulgate rules and regulations regarding the collection of the real estate transfer assessment required by this Restrictive Covenant and may authorize title insurance companies, other qualified real estate escrow or closing agents, or attomeys to collect the assessment upon the closing of a real estate transaction involving a Condominium Unit and to remit the amount of the assessment to the Eagle County Housing Department Affordable Housing Corporation. 6. Application of Funds. (a) All funds received by Eagle County the Affordable Housing Corporation Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 5 pursuant to this Restrictive Covenant shall be deposited and accounted for as a restricted fund. The funds shall be subject to appropriation by the BOCC utilized by the Affordable Housing Corporation, acting in consultation with the Eagle County Department of Housing, for the purpose of promoting affordable housing and, to the greatest extent possible, promoting such housing in the Roaring Fork Valley of Colorado. (b) The BOCC may borrow money, issue boads, or other\yise extend the credit of Eagle County for the purposes described above, pro,..ided that such bonds or ether comIIR.lnity obligations shall be made pa-yable from the funds deriyed from. this Restrictive Covenl:lflt. 7. Penalties and Liens. (a) All assessments imposed by this Restrictive Covenant, if not paid when due, shall bear interest at the rate of eighteen percent (18 % ) per annum until paid. The amount of the assessment imposed by this Restrictive Covenant and interest due thereon is hereby assessed against the property upon the transfer of which said assessment is imposed, and if not paid when due, such assessment and interest, if any, shall constitute a lien on the property for the amount thereof, which lien shall continue until the amount thereof is paid or until it is discharged of record by foreclosure or otherwise. (b) Any remedies provided for herein shall be cumulative, not exclusive, and shall be in addition to any other remedies provided by law. 8. Relationship to Land. The parties acknowledge and agree that all assessments raised by this Restrictive Covenant are related to and touch and concem the Property, since the assessments are required to be used for a valid public purpose. The owner of the Property will benefit from the expenditure of funds received by Eagle County the Affordable Housing Corporation to promote affordable housing in the Roaring Fork Valley of Colorado. 9. Recording. This Restrictive Covenant shall be recorded in the Eagle County records. 10. Enforcement. This Restrictive Covenant is made for the express benefit of eagle County the citizens of Eagle County and it is intended that Eagle County be a dircct bencficiary of this Restrictiye Covenant. As such, the Eagle County Attorney shall have the right and power to bring suit for either legal or equitable relief for any breach, default or lack of compliance with the provisions of this Restrictive Covenant, provided that no suit will be filed until the owner of an affected Condominium Unit is provided with written notice of such breach or lack of compliance and fails to cure such breach or lack of compliance within ten (10) days after the mailing of such notice. Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 6 11. Severability. Any determination by any court of competent jurisdiction that any provision of this Restrictive Covenant is invalid or unenforceable shall not affect the validity or enforceability of any other provision hereof. 12. Notices. Any notice, demand, or document which either party is required or may desire to deliver to the other party shall be in writing and may be personally delivered or given by facsimile transmission or given by United States certified mail, return receipt requested, addressed as follows: To Eagle County: Director Eagle County Housing Department 500 Broadway Eagle CO 81630-0850 To Owner: Blue Crow, LLC 1712 Willits Lane Basalt, CO 81621 Any notice, demand or document so given, delivered or made by United States mail shall be deemed to have been received on the earlier of the date actually received or the third business day after the same is deposited in the United States mail as a certified matter, addressed as above provided, with postage prepaid. Notice by facsimile transmission shall be deemed given upon receipt of a confirmation by sender. 13. Amendment. This Restrictive Covenant shall not be amended or terminated, except in a written instrument signed and acknowledged by the parties in the same manner as a deed and duly recorded in the real estate records. 14. perpetual. Term. Except as provided herein, the term of this Restrictive Covenant shall be 15. Colorado Law. The interpretation, enforcement or any other matters relative to this Restrictive Covenant shall be construed and determined in accordance with the laws of the State of Colorado. 16. Binding on Successors. The provisions of this Restrictive Covenant shall run with the Property and be binding on all persons who hereafter acquire any interest in the Property, whether as an owner, renter, trustee, or mortgage beneficiary or otherwise. As the direct beneficiary of this Restrictive Covenant, Eagle County shall have a right to enforce the provisions hereof as provided in Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 7 Section 10 hereof. 17. Encumbrance. Until terminated, each and every provIsion contained in this Restrictive Covenant shall be deemed incorporated in each deed or other instrument by which any right, title or interest in a Condominium Unit is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. IN WITNESS WHEREOF, the parties have executed this Restrictive Covenant the date first written above. BLUE CROW, LLC, a Colorado limited liability company By: Stephen Crowley, Manager STATEOFCOLORADO ) ) ss. COUNTY OF EAGLE ) Acknowledged before me this _ day of , 2006, by Stephen Crowley, as Manager of Blue Crow, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires Notary Public G:\Client\Crowley\Declaration of Restrictive Covenant Real Estate Transfer Assessment.doc