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HomeMy WebLinkAboutR07-030 Willits Bend PUD Amendments commissioner~ moved adoption of the foUowing resolntion: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 2007- () 2:;0 RESOLUTION APPROVING AMENDMENTS TO EXHIBIT TO RESOLUTION NO. 2007- 27 REGARDING WILLITS BEND PLANNED UNIT DEVELOPMENT WHEREAS, on March 27, 2007 the Board of County Commissioners of Eagle County, Colorado ("Board") adopted Resolution No. 2007- 27 approving and effecting corrections to Resolution No. 2006-108 regarding the Planned Unit Development Preliminary Plan and Zone Change for the Willits Bend Planned Unit Development; and WHEREAS, since adoption of Resolution No. 2007-27, further amendments to the Declaration of Restrictive Covenant - Real Estate Transfer Assessment (the "Declaration") addressed by such Resolution have become necessary to effectuate the purposes of such Declaration; and WHEREAS, a further revised Declaration of Restrictive Covenant - Real Estate Transfer Assessment effecting such amendments has been prepared and is attached hereto. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO: THAT, the aforesaid Declaration of Restrictive Covenant - Real Estate Transfer Assessment attached hereto as Exhibit A and incorporating the amendments to such Declaration necessary to effectuate its purposes is approved; 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 ADOPTED by the Board of County Commissioners of the County of Eagle, State of Colorado, at its regular meeting held this 3 day of April, 2007. COUNTY OF EAGLE, STATE OF COLORADO .. Clerk of the Board of County Commissioners By: ~. commissioner~ seconded adoption of the foregoing resolution. The roll having been called, the vote was as follows: Commissioner Am M. Menconi Commissioner Sara J. Fisher Commissioner Peter F. Runyon ~ This Resolution passed by 0/0 vote of the Board of County Commissioners of the County of Eagle, State of Colorado. DECLARATION OF RESTRICTIVE COVENANT REAL EST ATE TRANSFER ASSESSMENT This DECLARATION OF RESTRICTIVE COVENANT (hereinafter "Restrictive Covenant") is made by Willits Bend Development Company, a Colorado Corporation ("Owner"), effective , 2007. RECIT ALS 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 further the development of local resident housing and commercial affordability in Eagle County. DECLARATION FOR VALUABLE CONSIDERATION, 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 not-for-profit Colorado Corporation, "Willits Bend - Roaring Fork Housing, Inc." (the "Corporation") dedicated to promoting affordable housing in the Roaring Fork Valley area of Eagle County a transfer assessment of one percent of the Consideration paid (the "RET A"). Such assessment shall be due and payable by the Grantee at the time of Transfer in accordance with the provisions hereof. Prior to commencing the sale of Condominium Units, Owner will take any and all steps necessary to incorporate the Corporation in Colorado, acting in consultation with Eagle County, Colorado, which Corporation shall have a Board of Directors of five (5) members, two of whom shall be appointed by Eagle County and three of whom shall be appointed by Owner, provided that Owner may elect to assign, at such time as Owner shall deem it appropriate, its authority to appoint directors of the Corporation to the Willits Bend Condominium Association, an entity to be formed to represent the interests of owners of Condominiums, and provided that the articles and by-laws of the Corporation shall limit the purpose and powers of the Corporation to furthering of local resident housing and commercial affordability in Eagle County, and to the greatest extent possible, in the Roaring Fork Area of Eagle County, and shall not be amendable thereafter without an affirmative vote of not fewer than four (4) of the directors of the Corporation. EXHIBIT I 'If // Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 2 2. as follows: Definitions. For the purposes of this Restrictive Covenant, certain words are defined (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 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 retum 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 Intemal Revenue Code, Sec. 501(c)(3). Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 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 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. (f) 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. U) 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. I Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 4 (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 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 ofRETA. (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 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. (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 Eagle County, Colorado, on the _ day of , 2007, 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 Corporation, after consultation with 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 Corporation. Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 5 6. Application of Funds. All funds received by the Corporation pursuant to this Restrictive Covenant shall be deposited and accounted for as a restricted fund. The funds shall be utilized by the Corporation for the purpose of promoting affordable housing and, to the greatest extent possible, promoting such housing in the Roaring Fork Valley of Colorado. 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 the Corporation to promote local resident housing and commercial affordability in the Roaring Fork Valley of Colorado. 9. Recording. This Restrictive Covenant shall be recorded in the Eagle County records. 10. 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. 11. 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, retum receipt requested, addressed as follows: Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 6 To Eagle County: Director Eagle County Housing Department 500 Broadway Eagle CO 81630-0850 To Owner: Willits Bend Development Company 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 9wner, 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 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. Declaration of Restrictive Covenant Real Estate Transfer Assessment Page 7 Willits Bend Development Company, a Colorado Corporation. By: A. Stephen Crowley, President STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) Acknowledged before me this _ day of , 2006, by A. Stephen Crowley, as President of Willits Bend Development Company, a Colorado Corporation. Witness my hand and official seal. My commission expires Notary Public G:\Client\Crowley\Declaration of Restrictive Covenant Real Estate Transfer Assessment.doc