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HomeMy WebLinkAboutR03-121 Miller Ranch Housing Guidelines Commissioner ~ ~ ~~~ ~ moved adoption of the following resolution: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 2003-~! RESOLUTION APPROVING THE DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY AND RESALE OF MILLER RANCH HOUSING AND MILLER RANCH HOUSING GUIDELINES WHEREAS, the Board of County Commissioners ("Board") of Eagle County, Colorado has prepared a Deed Restriction Agreement for the Occupancy and Resale of Miller Ranch Housing ("Agreement") and Miller Ranch Housing Guidelines ("Guidelines"); and WHEREAS, there is a need for affordable housing for the residents of the County and the Agreement meets that need by restricting the transfer of the units located on Tract D, Berry Creek/Miller Ranch PUD, Eagle County, Colorado to qualified buyers; and WHEREAS, the Board has had an opportunity to review the Agreement and Guidelines and the same have been approved by FNMA. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO: THAT the Board hereby approves the Deed Restriction Agreement for the Occupancy and Resale of Miller Ranch Housing attached hereto as Exhibit A; and THAT the Board hereby approves the Miller Ranch Housing Guidelines attached hereto as Exhibit B; and THAT the Board authorizes the Chairman of the Board of County Commissioners to execute those documents and record the Agreement in the real property records of Eagle County, Colorado. MOVED, READ AND ADOPTED by the Board of County C ssioners of the County of Eagle, State of Colorado, at its regular meeting held thi ~ay of _ / - 003. • • ~~~c ,~ ® ®~ COUNTY OF EAGLE, STATE OF COLORADO ~ ~ By and Through 'ts Board of County * * Commissioner c tb~-®o ATTEST: ~By: % 'chael L.Gallagher, C ' erk of the Board of C un Commissioners By: Tom .Stone, Commissioner By: Arn M. Menconi, Commissioner Commissioner seconded adoption of the foregoing resolution. The roll having been called, the v was as follows: CommissionerMichael L. Gallagher ~, Commissioner Tom C. Stone ~ CommissionerArn M. Menconi This Resolution passed by~,~C,~®~i~ ~ vote of the Board of County Commissioners of the County of Eagle, State of Colorado. • DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY AND RESALE OF MII,LER RANCH HOUSING THIS DEED RESTRICTION AGREEMENT FOR OCCUPANCY AND RESALE OF MII.,LER RANCH HOUSING (the "Agreement") is made and entered into this day of , 2003, by Berry Creek Limited Liability Company, (hereinafter "Berry Creek, LLC") and Eagle County, Colorado, a body corporate and politic, (hereinafter "Count}'), for the benefit of the parties who together are collectively referred to as "Declarant" and to be enforced by the County. WITNESSETH: WHEREAS, County owns the real property described in Exhibit "A" attached hereto and incorporated herein. For purposes of the Agreement, the real property and all dwellings, appurtenances, improvements and fixtures associated therewith shall hereinafter be referred to as the "Property"; and WHEREAS, Berry Creek, LLC is the developer of improvements currently on and planned for the Property; and WHEREAS, there is a need for affordable housing for residents of the County and this Agreement restricting the acquisition and transfer of the Property to "Qualified Buyers" supports the health, safety and welfare of the citizens of the County; and WHEREAS, Declarant agrees to restrict the acquisition or transfer of the Property to Qualified Buyers as that term is defined in this Agreement and the Miller Ranch Housing Guidelines. In addition, the Declarant agrees that this Agreement shall constitute a resale agreement setting forth the maximum sales price for which the Property maybe sold ("Maximum Sales Price"), the amount of appreciation and the terms and provisions controlling the resale of the Property. Finally, by this Agreement, Declarant agrees to restrict the Property against use and occupancy inconsistent with this Agreement and the Miller Ranch Housing Guidelines. NOW, THEREFORE, for value received, the receipt and sufficiency of which is hereby acknowledged, Declarant hereby represents, covenants and agrees a.s follows: 1. "Qualified Buyers" are natural persons meeting the requirements as determined by the County and as set forth in the Miller Ranch Housing Guidelines, or its substitute, as adopted from time to time by the County, or its successor or designee. 2. "Owner" is a person or persons who is/are a Qualified Buyer who acquires an ownership interest in the Property in compliance with the terms and provisions of this Agreement; it being understood that such person or persons shall be deemed an "Owner" hereunder only during the period of his, her or their ownership interest in the Property and shall be obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein during such period. EXHIBIT ~ ~ ~ of 3. "Unit" is any of the units which comprise the Property including but not limited to condominiums, townhomes, duplexes and single family homes. "Unit" shall not include the community center and day care facility which maybe located on the Property and said center and day care facility shall not be subject to this Agreement or the Miller Ranch Housing Guidelines. 4. The use and occupancy of the Property shall henceforth be limited exclusively to housing for natural persons who meet the definition of Qualified Buyers and their families as set forth herein and in the most current Miller Ranch Housing Guidelines. It is understood and agreed by the parties that notwithstanding the foregoing, Units maybe held by County in the event of foreclosure or as permitted by this Agreement and the most current Guidelines; and Units maybe held from time to time by certain districts or governmental entities as permitted under a separate intergovernmental agreement with County. Further, it is understood and agreed by the parties that notwithstanding the foregoing, in certain limited situations, upon special review and approval, title to Units may be held in a trust for the benefit of a natural person who is a Qualified Buyer. The most current Miller Ranch Housing Guidelines set forth the specific rules and regulations authorizing such ownership. 5. An Owner, in connection with the purchase of this Property or Unit, must: (A) occupy any Unit within this Property as his or her sole place of residence during the time that such unit is owned; and (B) not engage in any business activity on or in such Unit, other than permitted in that zone district or by applicable ordinance; and (C) sell or otherwise transfer such Unit only in accordance with this Agreement and the most current Miller Ranch Housing Guidelines; and (D) not sell or otherwise transfer such Unit for use in a trade or business; and (E) not permit any use or occupancy of such Unit except in compliance with this Agreement and the most current Miller Ranch Housing Guidelines. 6. All obligations recorded of record against the Property and subsequent to this Agreement shall be subordinate to the terms hereof. 7. Breach of Agreement (A) Owner shall not default in payment or other obligations due or to be performed under a promissory note secured by a first deed of trust encumbering the Property or a Unit. Owner must notify the County, in writing of any notification received from a lender, 2 or its assigns, of past due payments or default in payment or other obligations due or to be performed under a promissory note secured by a first deed of trust, as described herein, within five calendar days of Owner's notification from lender, or its assigns, of said default or past due payments. (B} Upon notification from Owner, as provided above, or other notice of such default, the County may in its sole discretion offer loan counseling or distressed loan services to the Owner, if any of these services are available, and County is entitled to require the Owner to sell the Property or a Unit to avoid the commencement or continuance of any foreclosure proceeding against the Property or a Unit. In the event that the County determines that sale of the Property or a Unit is necessary to avoid the foreclosure process, County may require and Owner shall immediately execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission with the County, providing for a 30-day listing period. At that time, the Owner shall deposit with the County an amount equal to one half percent (%i %) of the estimated value of the Unit. In the event that Owner is unable to pay the one half percent (%Z%) at the time of listing, the same shall be paid at the time of closing. If a sales contract has not been executed within the initia130-day period, the Owner shall extend the listing period for an additiona1180 days, provided such extension does not conflict with the statutory rights of any secured creditors. The County shall promptly advertise the Property for sale by competitive bid to Qualified Buyers. At the time of closing the Owner shall pay to the County in addition to the one half percent (%z%) paid at the time of listing an additional one and one-half percent (1 %z %), for a maximum fee of two percent (2%) of the actual sales price. In the event of a listing of the Property pursuant to this Paragraph 7, the County is entitled to require the Owner to accept the highest of any qualified bids which satisfies the Owner's financial or other obligations due under the promissory note secured by a first deed of trust and deed of trust in favor of the County as described herein, and to sell the Property to such qualified bidder. County may in its sole discretion elect to purchase a Unit under this paragraph 7 for rental to a Qualified Person or sale to Qualified Buyers. (C) Upon receipt of notice as provided in paragraphs 7a and 7b, the County shall have the right, in its sole discretion, to cure the default or any portion thereof. In such event, the Owner shall be personally liable to the County for past due payments made by the County together with interest thereon at the rate specified in the promissory note secured by the deed of trust, plus one percent (1%) in addition to the interest rate identified in the promissory note and all actual expenses of the County incurred in curing the default. The Owner shall be required by the County to execute a promissory note on commercially reasonable terms acceptable to County and secured by deed of trust encumbering the Property in favor of the County for the amounts expended by the County as specified herein, including future advances made for such purposes. County shall be entitled to all rights and remedies under the deed of trust including the right of foreclosure. The Owner may cure the default and satisfy its obligation to the County under this subparagraph at any time prior to execution of a contract for sale, upon such reasonable terms as specified by the County. Otherwise, Owner's indebtedness to the County shall be satisfied from the Owner's proceeds at closing. 8. This Agreement shall constitute covenants mm~ing with the Property, as a burden thereon, i i for the benefit of, and shall be specifically enforceable by Eagle County, Colorado and its;. Board of County Commissioners, and their respective successors and assigns, as applicable, by any appropriate legal action including but not limited to specific performance, injunction, reversion, or eviction ofnon-complying owners and/or occupants. 9. In the event that an Owner desires to sell the Property or Unit, the Owner shall comply with and follow the procedures set forth in this Agreement and the most current Miller Ranch Housing Guidelines. 10. Maximum Sales Price. In no event shall the Property or a Unit be sold for an amount ("Maximum Sales Price")in excess of Owner's purchase price plus the percentage increase per year (compounded annually) of the average wage for Eagle County as determined by the Colorado Department of Labor and Employment. (A) In the event that an Owner owns the Property or a Unit for only a portion of any year, the percentage increase shall be prorated quarterly and the Owner shall be given credit through the quarter in which the sale occurs. (B) If the percentage increase in the average wage for Eagle County as determined by the Colorado Department of Labor and Employment is greater than 6% in a given year, the percentage increase which an Owner may claim for purposes of determining Maximum Sales Price shall be 6% for that year. (C) If the percentage increase in the average wage for Eagle County as determined by the Colorado Department of Labor and Employment is less than 3% in a given year, then the percentage increase which an Owner may claim for purposes of determining Maximum Sales Price shall be 3% for that year. (D) The parties agree that there may be a delay in the publication of statistics from the Colorado Department of Labor and Employment. Therefore, the calculation of Maximum Sales Price shall be based upon the most current available data. If data for the year of sale is not available then the Owner shall rely on the most current year's data that is available for purposes of calculating the Maximum Sales Price. (E) In the event that the Colorado Department of Labor and Employment no longer publishes the average wage for Eagle County, the Eagle County Board of County Commissioners shall identify a similar indicator from a reliable source and shall provide notice to all Owners of the change. (F) Sample calculations and additional information concerning the Maximum Sales Price appear in the Miller Ranch Housing Guidelines. • NOTHING HEREIN SHALL BE CONSTRUED TO CONSTITUTE A REPRESENTATION OR GUARANTEE BY EAGLE COUNTY OR BERRY CREEK LIlVIITED LIABILITY COMPANY THAT ON RESALE THE OWNER SHALL OBTAIN A PARTICULAR PRICE INCLUDING BUT NOT LIIVIITED TO THE MAXIMUM SALES PRICE. 11. Computation of Maximum Sales Price: (A) For the purpose of determining the Maximum Sales Price in accordance with this Section, the Owner may add to the amount specified iri Paragraph 10 above, the cost of Permitted Capital Improvements as set forth in the most current Miller Ranch Housing Guidelines. (B) Permitted Capital Improvements shall not increase the owner's base purchase price. (C) For the purpose of determining the Maximum Sales Price in accordance with this Section, the Owner may also add to the amounts specified in paragraphs 10 and l la, the cost of any permanent improvements constructed or installed as a result of any requirement imposed by any government agency or special assessment by a homeowners association for such permanent improvements, provided that written certification as required by the Miller Ranch Housing Guidelines is provided to the County. (D) In addition to the items identified in paragraphs 10 and 11 hereof an Owner may add actual sales costs as identified in the most current Miller Ranch Housing Guidelines to the Maximum Sales Price. 12. Owner shall not permit any prospective buyer to assume any or all of the Owner's customary closing costs nor accept any other consideration which would cause an increase in the purchase price above the bid price so as to induce the Owner to sell to such prospective buyer. 13. The Property and all Units shall be utilized only as the exclusive and permanent place of residence of an Owner. A permanent residence shall mean the home or place in which one's habitation is fixed and to which one, whenever he or she is absent, has a present intention of returning after a departure or absence therefrom, regardless of the duration of absence. In determining what is a permanent residence, the County shall take the following circumstances relating to the Owner of the residence into account: business pursuits, employment, income sources, residence for income or other tax purposes, age, marital status, residence of parents, spouse and children, if any, location of personal and real property, and motor vehicle registration. 14. Owner may not, except with prior written approval of the County and subject to the most current Miller Ranch Housing Guidelines, rent the Property or Unit for any period of time. 15. In the event that title vests in anon-qualified buyer or non-qualified transferee the terms of this Agreement and the most current Miller Ranch Housing Guidelines which may require sale or other relief shall govern. 16. IN NO EVENT SHALL THE OWNER CREATE AN ADDITIONAL DWELLING UNIT AS DEFINED IN THE EAGLE COUNTY LAND USE REGULATIONS, IN OR ON THE PROPERTY. 17. NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE EAGLE COUNTY TO PROTECT OR INDEMNIFY THE OWNER AGAINST ANY LOSSES ATTRIBUTABLE TO THE RENTAL, INCLUDING (NOT BY WAY OF LIMITATION) NON-PAYMENT OF RENT OR DAMAGE TO THE PREMISES; NOR TO REQUIRE THE COUNTY TO OBTAIN A QUALIFIED TENANT FOR THE OWNER IN THE EVENT THAT NONE IS FOUND BY THE OWNER 18. In the event the County after a hearing before the Eagle County Board of County Commissioners (or other entity it may designate) has cause to believe an Owner is violating t he p rovisions of t his A greement a nd t he m ost c urrent M filler Ranch H ousing Guidelines, the County by its authorized representatives may inspect the Property or Unit between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday upon no less than 24 hours written notice to Owner to investigate such violation. For purposes of this paragraph only, notice of hearing or inspection to Owner shall be provided by posting notice on the front door of the Unit a minimum of 24 hours in advance of the hearing or inspection. 19. In the event a violation of this Agreement is discovered County may follow the procedures set forth in the most current Miller Ranch Housing Guidelines, as amended from time to time. 20. If the County, in its sole discretion, determines that there has been a violation of this Agreement or the Miller Ranch Housing Guidelines, the Owner of the Property or Unit shall be found to be in non-compliance by County. Penalties which the County may assess against the Owner include, but shall not be limited to, eliminating resale gain, requiring sale of the Property or Unit, assessing penalties and seeking remedies set forth in the Eagle County Land Use Regulations or the most current Miller Ranch Housing Guidelines. 21. There is hereby reserved to the parties hereto any and all remedies provided by law for breach of this Agreement or any of its terms. In the event the parties resort to litigation with respect to any or all provisions of this Agreement, the prevailing party shall be entitled to recover damages and costs, including reasonable attorney fees. 22. In the event the Property or Unit is sold and/or conveyed without compliance herewith, such sale and/or conveyance shall be wholly null and void and shall confer no title • whatsoever upon the purported buyer. Each and every conveyance of the Property or Unit, for all purposes, shall be deemed to include and incorporate by this reference, the covenants herein contained, even without reference therein to this Agreement. 23. In the event that the Owner fails to cure any breach of this Agreement or the Miller Ranch Housing Guidelines the County may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement, a mandatory injunction or require the sale of the Property or Unit by Owner. The costs of such sale shall be taxed against the proceeds of the sale with the balance being paid to the Owner. 24. In the event of a breach of any of the terms or conditions contained herein by the Owner, his or her heirs, successors or assigns, the Maximum Sales Price of the Property or Unit as set forth in Paragraph 10 of this Agreement shall, upon the date of such breach as determined by the County cease to increase, and shall remain fixed until the date of cure of said breach. 25. The County pursuant to the Option to Buy which is attached hereto and incorporated herein as Exhibit "B" shall release and waive its ability to enforce this Agreement only in the event of a foreclosure or acceptance of a deed in lieu of foreclosure by the holder (including assigns of the holder) of a promissory note secured by a first deed of trust on a Unit, provided however, that prior to such release or waiver County shall have the option to buy the Unit within thirty (30)days after the issuance of a public trustee's deed or deed in lieu of foreclosure to the holder as more fully set forth in Exhibit `B." It is specifically agreed that nothing contained herein shall require County to release and waive its ability to enforce this Agreement in the event of foreclosure of a lien secured in second or subsequent position. In the event that the County or its assigns exercises the Option to Buy and acquires title to a Unit as set forth in Exhibit "B," the County or its assigns may thereafter sell the Unit to Qualified Buyers as that term is defined herein, or rent the Property or Unit in accordance with the terms of the most current Miller Ranch Housing Guidelines until such time that the Property or Unit can be sold to a Qualified Buyer. 26. Notices. Any notice, consent or approval which is required to be given hereunder shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to any address provided herein or to any subsequent mailing address of the party as long as prior written notice of the change of address has been given to the other parties to this Agreement. Said notices, consents and approvals shall be sent to the parties hereto at the following addresses unless otherwise notified in writing: To Berry Creek Limited Liability Company: Mr. Ken Beck 401 Paseo De Peralta Santa Fe, NM 87501 To Eagle County: Eagle County Housing Department Post Office Box 179 Eagle, CO 81631-0179 And Eagle County Attorney Post Office Box 850 Eagle, CO 81631 To Owner: To be determined by a later recorded memorandum encumbering each individual Property or Unit. 27. Exhibits. All exhibits attached hereto (Exhibits "A"and "B")are incorporated herein and by this reference made a part hereof. 28. Severability. Whenever possible, each provision of this Agreement and any other related document 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 provisions shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of such documents. 29. Choice of Law. This Agreement and each and every related document is to be governed and construed in accordance with the laws of the State of Colorado. 30. Successors. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. 31. Section Headings_Paragraph or section headings within this Agreement are inserted solely for convenience or reference, and are not intended to, and shall not govern, limit or aid in the construction of any terms or provisions contained herein. 32. Waiver. No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any party hereto except on the basis of a written instrument executed by the parties to this Agreement. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition. 33. Gender and Number. Whenever the context so required herein, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. • • 34. Personal Liability. Owner agrees that he or she shall be personally liable for any of the transactions contemplated herein. 35. Further Actions. The parties to this Agreement agree to execute such further documents and take such further actions as maybe reasonably required to carry out the provisions and intent of this agreement or any agreement or document relating hereto or entered into in connection herewith. 36. Modifications. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made by writings signed by both parties and recorded with the Clerk and Recorder of Eagle County, Colorado. Notwithstanding the foregoing, the County reserves the right to amend this Agreement unilaterally where deemed necessary to effectuate the purpose and intent of this Agreement, and.where such unilateral action does not materially impair the Owner's rights nor any lender's rights under this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year above first written. BERRY CREEK LIIVIITED LIABILITY COMPANY: By: Title: STATE OF ) )ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2003, by Witness my hand and official seal. My commission expires: Notary Public • ACCEPTANCE BY EAGLE COUNTY The Foregoing Deed Restriction Agreement for the Occupancy and Resale of Miller Ranch Housing and its terms are hereby adopted and declared by Eagle County. EAGLE COUNTY, COLORADO A body corporate and politic by and through its Board of County Commissioners By: Michael L. Gallagher, Chairman STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 2003, by Michael L. Gallagher, Chairman Eagle County Board of County Commissioners. Witness my hand and official seal. My commission expires: Notary Public io • EXHIBIT "A" Legal Description (TO BE INSERTED) s 11 • • EXHIBIT "B" OPTION TO BUY In the event of a foreclosure or acceptance of a deed in lieu of foreclosure by the holder (including assigns of the holder) of the promissory note secured by a first deed of trust on a Unit within Miller Ranch Housing (hereinafter "the Property"), and subject to the issuance of a public trustee's deed to the holder following the expiration of all statutory redemption rights, or issuance of a deed in lieu of foreclosure to the holder, Eagle County (the "County") or its assigns shall have the option to purchase the Property which shall be exercised in the following manner: A. Notice. The Owner and the holder shall give such notice to the County as is required bylaw in the foreclosure proceeding. Said notice shall be sent by certified mail, return receipt requested, and addressed as follows: Housing Department Eagle County Post Office Box 179 Eagle, CO 81631 B. Option to Purchase. The County or its assigns shall have 30 days after issuance of the public trustee's deed or deed in lieu of foreclosure in which to exercise this Option to Buy. In the event of a deed in lieu of foreclosure County may exercise the Option to Buy by tendering to the holder or its assigns, in cash or certified funds, an amount equal to the amount due on the note and any additional reasonable costs incurred by the holder during the option period. In the event of foreclosure and issuance of a public trustee's deed, County may exercise the Option to Buy by tendering to the holder or its assigns, in cash or certified funds, the redemption price which would have been required of the borrower or any person who might be liable upon a deficiency on the last day of the statutory redemption period(s) and any additional reasonable costs incurred by the holder during the option period which are directly related to the foreclosure. C. Title. Upon receipt of the option price, the holder shall deliver to the County or its assignee a special warranty deed, conveying the property to the County or its assignee. The holder shall convey only such title as it received through the public trustee's deed or deed in lieu of foreclosure and shall not create or participate in the creation of any additional liens or encumbrances against the Property following issuance of the public trustees' deed to the holder. The holder shall not be liable for any of the costs of conveyance to the County or its assignee. 12 ~ ~ D. Release. Upon issuance of a public trustee's deed or deed in lieu of foreclosure to the holder of a note secured by a first deed of trust (the "Holder"); the County or its assigns shall have thirty (30) days in which to exercise the option to purchase as set forth herein by notifying the Holder in writing of its intent to exercise the option. In the event that the County does not notify the Holder in writing of its intent to exercise the option to purchase as set forth herein, the County's option to purchase and the Deed Restriction Agreement for the Occupancy and Resale of Miller Ranch Housing recorded at Reception Number in the records of the Clerk and Recorder of Eagle County, Colorado shall be automatically released only with respect to the unit which is the subject of foreclosure as of the thirty-first day after the issuance of such public trustee's deed or deed in lieu of foreclosure. The Holder shall not be required to take any affirmative action to obtain such release. It is the intent of the County that the option to purchase and the referenced Deed Restriction Agreement be terminated automatically upon the failure of the County to provide written notice of its intent to exercise its option to purchase to the Holder, whether such failure is intentional or unintentional, and that such termination will be effected without the necessity of any affirmative action on the part of the Holder and without the necessity of filing a release of such Deed Restriction Agreement or option of public record. It is agreed that this section D shall not result in a release of the Deed Restriction Agreement from any units which are not the subject of foreclosure and nothing contained herein shall require County to release and waive its ability to enforce this Agreement in the event of foreclosure of a lien secured in second or subsequent position. E. Perpetuities Savings Clause. If any of the terms, covenants, conditions, restrictions, uses, limitations, obligations or options created by this Option to Buy shall be unlawful or void for violation of (1)the rule against perpetuities or some analogous statutory provision, (2) the rule restricting restraints on alienation, or (3) any other statutory or common law rules imposing like or similar time limits, then such provision shall continue only for the period of the lives of the current duly elected and seated Board of County Commissioners of Eagle County, Eagle, Colorado, their now living descendants, if any, and the survivor of them, plus twenty-one (21) years. F. Successors and Assigns. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties hereto. (s. Modifications. The parties hereto agree that any modification to this Option to Purchase shall be effective 13 only when made by writings signed by all parties and recorded with the Clerk and Recorder of Eagle County, Colorado. G:~dhm~FinalBerrycreekeaglecodeedrestriction cleanl 14 MILLER RANCH HOUSING GUIDELINES Adopted September 30, 2003 EXHIBIT ~ r 8 '~ I. PURPOSE The purpose of the Miller Ranch Housing Guidelines ("Guidelines") is to set forth the occupancy requirements, resale procedures, and resale price limitations for the Miller Ranch deed restricted housing. Additional information pertaining to Miller Ranch deed restricted housing can be found in the Deed Restriction Agreement for the Occupancy and Resale of Miller Ranch Housing ("Master Deed Restriction"). In the event of conflict between the Master Deed Restriction and these Guidelines, the Master Deed Restriction shall control. II. DEFINITIONS A. "Owner" is a person or persons who is/are a Qualified Buyer who acquires an ownership interest in the Property or Unit in compliance with the terms and provisions of the Master Deed restriction and these Guidelines. B. "Property" is the real property described in Exhibit "A" of the Master Deed Restriction and all dwellings, appurtenances, improvements and fixtures associated therewith. C. "Qualified Buyer" are natural persons meeting the requirements as determined by the County and as set forth in the Miller Ranch Housing Guidelines, or its substitute, as adopted from time to time by the County, or its successor or designee. D. "Unit" is any of the units which comprise the Property including but not limited to condominiums, townhomes, duplexes and single family homes. "Unit" shall not include the community center and day care facility which maybe located on the Property. III. MAXIMUM RESALE PRICE An owner may sell a Unit provided that the resale price and prospective purchaser meet the standards of both these Guidelines and the Master Deed Restriction. The resale price may not exceed: A. The Owner's purchase price plus the percentage increase for each year (compounded annually) of the average wage for Eagle County as determined by the Colorado Department of Labor and Employment. (i) In the event that an Owner owns the Property or a Unit for only a portion of any year the percentage increase shall be prorated quarterly and the 2 • Owner shall be given credit through the quarter in which the sale occurs. (ii) If the percentage increase in the average wage for Eagle County as determined by the Colorado Department of Labor and Employment is greater than 6% in a given year the percentage increase which an Owner may claim for purposes of determining the Maximum Sales Price shall be 6% for that year. (iii) If the percentage increase in the average wage for Eagle County as determined by the Colorado Department of Labor and Employment is less than 3% in a given year then the percentage increase which an Owner may claim for purposes of determining Maximum Sales Price shall be 3% for that year. (iv) There may be a delay in the publication of statistics from the Colorado Department of Labor and Employment. Therefore the calculation of Maximum Sales Price shall be based upon the most current available data. If data for the year of sale is not available then the Owner shall rely on the most current data available for purposes of calculating the Maximum Sales Price. In addition to the items in this section III(A) the Owner may also include permitted capital improvements as identified in III(B) hereof. B. Permitted Capital Improvements. The value of permitted capital improvements made to the Property or Unit shall not exceed ten percent (10%) of the purchase price for each ten years of ownership. For every ten-year period, from the date of purchase, another ten percent of the purchase price maybe added to the value of the property for capital improvements. Such improvements maybe added upon resale provided that the value of capital improvements may not exceed 10% per decade. In calculating such amount, only those Permitted Capital Improvements identified in Exhibit "A" which is attached hereto and incorporated herein, shall qualify for inclusion. All such Permitted Capital Improvements installed or constructed over the life of the unit shall qualify. Permitted Capital Improvements shall not include any changes or additions to the Property made by the Owner during construction or thereafter, except in accordance with this section. Permitted Capital Improvements shall not increase an Owner's base purchase price. (i) In order to qualify as Permitted Capital Improvements, the Owner must fiunish to the County the following information with respect to the improvements which the Owner seeks to include in the calculation of Maximum Sales Price: 3 u a) Original or duplicate receipts to verify the actual costs expended by the Owner for the Permitted Capital Improvements; b) Owner's affidavit verifying that the receipts are valid and correct receipts tendered at the time of purchase; and c) True and correct copies of any building permit or certificate of occupancy required to be issued by the Eagle County Building Division with respect to the Permitted Capital Improvements. Work which requires and that is performed without the issuance of a building permit shall not be considered a Permitted Captial Improvement. (ii) For the purpose of determining the Maximum Sales Price in accordance with these Guidelines and the Master Deed Restriction, the Owner may also add as a Permitted Capital Improvement, the cost of any permanent improvements constructed or installed as a result of any requirement imposed by any governmental agency, or required by special assessment by a Homeowners Association for such permanent improvements, provided that written certification from such agency or association is provided to the County. (iii) In calculating the costs allowed as Permitted Capital Improvements, only the Owner's actual out-of-pocket costs and expenses shall be eligible for inclusion. Such amount shall not include an amount attributable to Owner's labor or to any appreciation in the value of the improvements. C. In addition to the items identified in sub-paragraphs (A) and (B) of this Section III hereof an Owner may add the actual sales costs as indicated in section IV below, not to exceed two (2%) percent of the Maximum Sales Price as calculated above. IV. RESALE PROCEDURES All deed-restricted units must be listed for sale with Eagle County. A. Listing the Unit with Eagle County: Staff Duties 1. In the event that an Owner desires to sell the Property or Unit, Owner shall execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission with the County providing fora 180-day listing period, or such other time period as required by the County. At that time, the Owner shall deposit with the County an amount equal to one-half percent (%Z %) of the estimated value of the Unit. In addition, the County shall promptly advertise the Property or Unit for sale by competitive bid to 4 • Qualified Buyers. At the time of closing, the Owner shall pay to the County, an additional one and one-half percent (1 '/z %). The total may not exceed two (2%) percent of the actual sales price. The County may charge a fee based on the amount financed for any conventional loans. The amount of this fee shall be paid by the purchaser and shall be used in the event the County desires to step in and cure a default of any Unit under the Master Deed Restriction or these Guidelines. 2. An Owner of a Unit desiring to sell should consult with County housing staff and review the individual deed restriction and the Master Deed Restriction affecting the Unit to determine the Maximum Sales Price permitted and other applicable provisions concerning a sale. Unless otherwise provided in the Master Deed Restriction or these Guidelines the Unit must be listed for sale with the County and the County staff will administer the sale in accordance with the most current Guidelines. There shall be a minimum listing period of 90 days before a Unit's price can be readjusted. Any termination in the listing shall require the payment of administrative and advertising costs. The one- half (%2%) percent of the estimated value of the Unit required to be deposited with County staff at time of listing will be returned to Owner less any expenses incurred by County. In the event that costs exceed the amount of the deposit such costs shall be paid by the Owner. 3. The Guidelines are intended to ensure that ALL purchasers and ALL sellers will be treated fairly and impartially. Questions will be answered and help provided to any potential purchasers or sellers equally in accordance with the current Guidelines. Listings, sales contracts, extensions to contracts and closing documents will be prepared and all actions necessary to consummate the sale shall be undertaken. 4. In pursuit of the above, the staff will be acting on behalf of the County. It should be clearly understood by and between all parties to a sales transaction that the staff members are not acting as licensed brokers to the transaction, but as representatives of the County and its interests. The County shall nevertheless attempt to help both parties consummate a fair and equitable sale in accordance with the current Guidelines. 5. All purchasers and sellers are advised to consult legal counsel regarding examination of title and all contracts, agreements and title documents. The retention of such counsel, licensed real estate brokers, or such related services, shall be at purchaser's or seller's own expense. The fees paid to the County are to be paid regardless of any actions or services that the purchaser or seller may undertake or acquire. B. Advertising the Sale: Bid Periods 1. After a Unit is listed for sale with the County, the County will arrange to advertise the Unit for sale in two consecutive weekly editions of two newspapers that are in general circulation within Eagle County. After a Unit is first listed, there is an initial bid period during which the Unit will be advertised with two open house dates when the Unit may be viewed by interested parties. This initial bid period ends on the Friday after the second week of advertising. If no bids are received during the initial bid period, there will follow consecutive one-week bid periods, ending on Friday, until the unit is sold. 2. If more than one bid is received during any bid period, the bids shall be prioritized according to the criteria of the then current Guidelines. In the event that one qualified bid is received equal to the Maximum Sales Price, the Property shall be sold to such bidder at the Maximum Sales Price. In the event Owner receives two or more such bids equal to the Maximum Sales Price, the Qualified Buyer shall be selected according to the criteria of these Guidelines; and, in the event that several qualified bidders are of equal priority pursuant to the Guidelines, the Qualified Buyer shall be selected by lottery among the Qualified Buyers, whereupon the Property or Unit shall be sold to the winner of such lottery at the Maximum Sales Price. If the winner of the lottery does not proceed to contract within five business days after notification, the next in line will be notified and so on, until the Unit is under contract for purchase. Back-up contracts in the priority order set forth in the lottery will be accepted. Prospective purchasers must bepre-qualified by a lender prior to submitting a bid for a Miller Ranch Unit. County staff will be available to assist interested parties with the purchase procedures and to answer any questions about the process. 3. If the terms of the proposed purchase contract, other than price, as initially presented to the Owner, are unacceptable to the Owner, there shall be a mandatory negotiation period of three (3) business days to allow the Owner and potential buyer to reach an agreement regarding said terms. If, after the negotiation period is over, the Owner and prospective buyer have not reached an agreement, the next bidder's offer will then be presented to the Owner for consideration and a three (3) business day negotiating period will begin again. The Owner may reject any and all bids, however, the Owner is subject to the provisions in these Guidelines pertaining to the 6 listing fee. Bids in excess of the Maximum Sales Price shall be rejected. If all bids aze below Maximum Sales Price, Owner may accept the highest qualified bid. If all bids aze below Maximum Sales Price and two or more bids aze for the same price, the Qualified Buyer shall be selected by lottery from among the highest qualified bidders. C. Sales and Other Fees: Unless otherwise set forth in the Master Deed Restriction covering the Unit, at the closing of the sale, the seller will pay the County a sales fee equal to two (2%) percent of the actual sales price. The County shall instruct the title company to pay said fees to the County out of the funds held for the seller at the closing. Unless otherwise specified in the Master Deed Restriction, aone-half percent (1/2%) fee is paid by the Seller at the time of listing, which is applied to the total sales fee of two percent (2%) payable at closing. In the event that the seller fails to perform under the listing contract, rejects all offers at maximum price in cash or cash-equivalent terms, or should withdraw the listing after advertising has commenced, that portion of the fee will not be refunded. In the event that the seller withdraws for failure of any bids to be received at maximum price or with acceptable terms, the advertising and administrative costs incurred by the County shall be deducted from the fee, with the balance returned to Owner. D. Deed Restriction The purchaser must execute, in a form satisfactory to the County and for recording with the Eagle County Clerk and Recorder concurrent with the closing of-the sale, a document acknowledging the purchaser's agreement to be bound by (1) the Master Deed Restriction which will run with the property in perpetuity; and (2) these Guidelines as maybe amended from time to time. E. Agreement with Town of Vail Pursuant to the terms of an Intergovernmental Agreement between County and the Town of Vail, it is agreed that County will make an effort to place Qualified Buyers who aze employed within the Town in one-half of the units on the Property. Specifically, upon resale the units will be rotated such that the first unit that becomes available for sale shall be a County unit, the second a Town unit, the third a County unit and continuing in such a rotating pattern. When a Town unit becomes available in the rotation, the lottery and preference system set forth in these Guidelines shall be used. Eagle County shall, as set forth below, assign a preference of five points for applicants who are employed within the Town of Vail and who apply for a Town unit in addition to other points an applicant may otherwise receive under the Guidelines. The "Town" units shall then be sold to 7 L~ the highest ranking Qualified Buyer whether employed within the County or the Town. V. RESALE LOTTERY CRITERIA A. There are seven basic eligibility requirements which must be met prior to an individual submitting a bid to purchase anemployee-housing unit. The applicant must intend to use the unit as his/her primary residence and maintain it as his/her primary residence in the future. 2. The applicant must be currently employed at a business located within Eagle County; and 3. The applicant must be employed an average of 30 hours each week on an annual basis, and must maintain this level of employment for as long as he or she owns the unit; OR The applicant must demonstrate that at least 75% of his/her income and earnings are earned by working in Eagle County. 4. Neither the applicant nor any member of the applicant's immediate family (including, but not limited to, spouse and children under 18 years of age) may own residential real estate in Eagle County at the time of sale. 5. The applicant must be prequalified with a mortgage lender. 6. For all Miller Ranch single family units which contain three or more bedrooms, the applicant must have a household size of 3 or more persons. For the purposes of determining household size, applicants may include all persons related to the applicant by blood, marriage, or adoption. If the applicant plans to include dependents, they must be continuously listed on federal income tax forms and reside in the household at least six months and one day out of each year. A pregnancy may be counted towards the family size requirement as long as a note from an Eagle County doctor is provided. For Miller Ranch row houses and duplexes which contain three or more bedrooms, applicants with a household size of 3 or more shall have a preference, but such row house and duplex units may be sold to smaller households. • • 7. A retired individual, sixty years or older, who has worked a minimum of five years in Eagle County for an average of thirty hours per week on an annual basis may also satisfy paragraphs two and three of this section A. B. An individual may seek a variance from the strict application of these Guidelines to request that title to a Unit be held in trust. Such ownership in trust may only occur in limited circumstances and upon special review and approval from the Eagle County Housing Department. In order to request a variance from the strict application of these Guidelines the applicant shall submit a letter requesting a special review to the Eagle County Housing Department. Such letter shall include the following: a. The letter shall request permission to title the property in trust for the benefit of a natural person who also meets the definition of a Qualified Buyer. b. Units maybe held in trust only for the benefit of a natural person who due to a physical or mental impairment lacks the capacity to contract or is prevented by such impairment from acquiring title to a Unit in his or her own name. The letter shall include documentation of such impairment and the basis for ownership in trust. It should be noted that the applicant shall submit any additional information reasonably requested by the County to allow County to process this special request. c. The beneficiary of the trust may not own other real property. d. The beneficiary of the trust must be of the age of majority to qualify under this section. e. For purposes of the criteria set forth in Section V(A)2 and 3 hereof, the beneficiary may meet the criteria of said paragraphs 2 and 3 through volunteer work in Eagle County. Such volunteer work shall be verified through proof from the applicant as set forth in Section VIII of these Guidelines. f. The criteria of Section V(A)5 may be met so long as the trust pre- qualifies for a loan. Further the trust must prove an adequate means of ensuring that expenses associated with ownership, including but not limited to association dues and expenses are met. 2. Upon receipt of a request for a special review and any requested 9 • information and documentation, a special review meeting will then be scheduled in a timely manner. The Director of the Eagle County Housing Department may grant the request with or without conditions, so long as the request meets the requirements set forth above and if the approval will not cause a substantial detriment to the public good and will not substantially impair the goals and the purpose of the Guidelines. 3. An applicant affected by the decision of the Eagle County Housing Director may appeal such decision to the Board of County Commissioners by filing with the Board of County Commissioners within ten (10) days of the date of the written decision, a written notice stating and specifying briefly the grounds of the appeal. The Board of County Commissioners shall place the appeal on the Board of County Commissioner's agenda within thirty (30) days of receipt of a written notice of appeal. 4. The Board of County Commissioners, after a hearing, shall have the power to affirm or reverse the decision of the Director of Housing. In making its decision the Board of County Commissioners shall apply the criteria set forth in V(B)(1) above and shall render a written decision. The decision of the Board of County Commissioners shall be final. C. Once basic eligibility has been met, the qualified person(s) submitting the highest bid price (not to exceed the Maximum Sales Price) during a bidding period shall have the first right to negotiate purchase of the Unit. If two or more qualified bids are submitted at the highest bid price, they shall receive preference and be prioritized for selection as the top bidder based on the highest score using the criteria listed below. 1. An applicant shall receive one point for each year of employment and one point for each year of residency in Eagle County. 2. There shall be three categories of preferences for purposes of allocating points: a. Category I. Shall include firefighters, police officers, EMS technicians, plow operators or mechanics in public service, dispatchers, 911 information service employees, hospital employed medical professionals and water and sanitation and health workers. Those applicants who meet the criteria of Category I shall receive 5 points plus one point for each year in such category in addition to the points identified in paragraph 1 hereof. b. Category II. Shall include applicants employed in the field of 10 • public transportation, and education, including but not limited to bus drivers, airport personnel and teachers. Those applicants who meet the criteria of Category II shall receive 4 points plus 1 point for each year in that category in addition to the points identified in paragraph 1 hereof. c. Category III. Those Employed within Eagle County. Those applicants who meet the criteria of Category III shall receive 1 point plus 1 point for each year in that category in addition to the points identified in paragraph 1 hereof. d. Category 1V. Town of Vail Employees who apply for "Town Units" Applicants employed within the Town of Vail and who apply for a "Town" Unit shall receive 5 points in addition to points the applicant might otherwise receive under this section. 3. Physical place of residence and employment will be considered, not the mailing address. 4. Seasonal work and part-time work shall be counted on a pro-rata basis. Seasonal work and part time work alone may not be adequate to meet the 30 hours each week average annual requirement or the requirement that at least 75% of income be earned by working in Eagle County. This type of work may need to augment other employment to meet the minimum eligibility. 5. For the purposes of determining standing of each applicant, each year of residency (or employment) reflects one point. For the portion of time in excess of a complete year, the County will round to the next highest number if the time exceeds six months and one day. If time is less than six months, the County will round down. 6. If two individuals are applying jointly, only the points from the highest ranking individual shall be considered. 7. All claims will be verified by Eagle County staff. Claims of residence or employment that are un-verifiable in the sole discretion of County will not be counted in determining longevity. 8. If there is a sole applicant in the top tier of the lottery, the scheduled lottery will not be conducted and the Unit will be awarded to the top tier 11 ! • applicant. A drawing to establish the reserve list will be held in Eagle County offices during regular business hours and shall be witnessed by a member of the County staff. 9. The application and any accompanying documentation shall become the property of Eagle County and will not be returned to the applicant. Applicants may be required to supplement or complete a new application if requested by Eagle County. Applications shall be maintained by Eagle County for one year. VI. OCCUPANCY REQUIREMENTS A. Once a Unit has been purchased, it must continue to be occupied in a manner that is consistent with these Guidelines and the Master Deed Restriction. The purchased Unit must be owner occupied by: 1. An employee, working in Eagle County who works an average of thirty hours per week on an annual basis or earns 75% of his/her income and earnings by working in Eagle County or as set forth in Section V hereof. 2. A retired individual, sixty years or older, who has worked a minimum of five years in Eagle County for an average of thirty hours per week on an annual basis. 3. In the event that title to the Property or Unit vests by descent in a surviving spouse and/or children who are not Qualified Buyers, such surviving spouse and/or children shall have one year to become qualified. In the event the surviving spouse and/or children are unable to become Qualified Buyers in one year then such Unit shall be listed for sale as provided in Section IV hereof including the payment of specified fees to County. 4. In the event that title to the Property or Unit is transferred or vests by descent (other than surviving spouse and children) in individuals and/or entities who are not Qualified Buyers as that term is defined herein "Non-Qualified Transferee") the Property or Unit shall be immediately listed for sale as provided in Section IV hereof including the payment of specified fees to County. The highest bid by a Qualified Buyer of not less than ninety-five percent (95%) of the Maximum Sale's Price or the market value, whichever is less, shall be accepted by the Non-Qualified Transferee. If all bids received are less than ninety-five percent (95%) of the Maximum Sale's Price or the appraised market value, the Property or Unit shall continue to be listed for sale until a bid in accordance with this section is made, which bid must be accepted unless the Non-Qualified 12 Transferee elects to accept a lower bid from a Qualified Buyer. The cost of appraisal shall be paid by the Non-Qualified Transferee(s). a. Non-Qualified Transferee(s) shall join in any sale, conveyance or transfer of the Property or Unit to a Qualified Buyer and shall execute any and all documents necessary to do so; and b. Non-Qualified Transferee(s) shall not: 1) occupy the Property or said Unit; 2) rent all or any part of the Property or Unit, except in strict compliance with these guidelines; 3) engage in any other business activity on or in the Property or Unit; 4) sell or otherwise transfer the Property or Unit except in accordance with these Guidelines or the Master Deed Restriction; or 5) sell or otherwise transfer the Property or Unit for use in a trade or business. c. The County and its successors, as applicable, shall have the right and option to purchase the Property or Unit, exercisable within a period of fifteen (15) calendar days after receipt of any sales offer submitted to the County by aNon-Qualified Transferee(s), and in the event of exercising their right and option, shall purchase the Property or Unit from the Non-Qualified Transferee(s) for a price of ninety-five percent (95%) of the Maximum Sale's Price, or the appraised market value, whichever is less. The offer to purchase shall be made by the Non-Qualified Transferee within fifteen (15) days of acquisition of the Property or Unit. d. Where the provisions of this Paragraph apply, the County may require the Non-Qualified Transferee to rent the Property or Unit in accordance with the provisions of these guidelines. 5. If at any time the Owner of the Property or Unit also owns any interest alone or in conjunction with others in any developed residential property or dwelling unit(s) located in Eagle County, Owner agrees to immediately list said other property or unit for sale and to sell Owner's interest in such property at a sales price comparable to like units or properties in the area in which the property or dwelling unit(s) are located. In the event said other property or unit has not been sold by Owner within one hundred twenty (120) days of its listing, then Owner hereby agrees to list the Miller Ranch Unit for sale pursuant to the provisions of these Guidelines and the Master Deed Restriction. It is understood and agreed between the parties hereto that, in the case of an Owner whose business is the construction and sale of residential properties or the purchase and resale of such properties, the properties which constitute inventory in such an Owner's business 13 shall not constitute "other developed residential property" or "dwelling unit(s)" as those terms are used in these Guidelines and the Master Deed Restrictions. 6. Owner may not, except with prior written approval of the County, and subject to Eagle County's conditions of approval, rent the Property or Unit for any period of time. Prior to occupancy, any tenant must be approved by the County. The County shall not approve any rental if such rental is being made by Owner to utilize the Property or Unit as an income producing asset, except as provided below, and shall not approve a lease with a rental term of less than thirty (30) days and no more than six (6) months without clear and convincing evidence that a lease longer than six months (6) is necessary. A signed copy of the lease must be provided to the County prior to occupancy by any tenant. Any such lease approved by the County shall be equivalent to the monthly expenses for the cost of principal and interest payments, taxes, property insurance, condominium or homeowners' assessments, utilities remaining in owner's name, plus an additional twenty dollars ($20) and a reasonable (refundable) security deposit. The requirements of this paragraph shall not preclude the Owner from sharing occupancy of the Property or unit with non-owners on a rental basis provided Owner continues to meet the obligations contained in these Guidelines and the Master Deed Restriction. 7. In the event Owner changes domicile or ceases to utilize the Property or Unit as his or her sole and exclusive place of residence, the Property or Unit will be offered for sale pursuant to the terms of these Guidelines and the Master Deed Restriction. Owner shall be deemed to have changed Owner's domicile by becoming a resident elsewhere or accepting permanent employment outside of Eagle County, or residing on the Property or Unit for fewer than nine (9) months per calendar year without the express written approval of the County. Where the provisions of this Paragraph apply, the County may require the Owner to rent the Property or Unit in accordance with the provisions of these Guidelines and the Master Deed Restriction. A. A leave of absence maybe granted for one year (in the sole discretion of County), subject to clear and convincing evidence which shows a reason for leaving and a commitment to return to the Eagle County area. Said evidence shall be in written form presented to the County for review and recommendations 30 days prior to leaving. The Leave of Absence shall be for one year and may, at the discretion of the County, be extended for one year, but in no event shall it exceed two years. The unit must be rented during said year or years to residents who comply with occupancy 14 i ~- requirements. After verification and qualification of tenant(s), a copy of the executed lease shall be furnished to the County. B. If the Unit is listed for sale and the Owner must relocate to another area, the unit may, upon approval of the County, be rented prior to completion of the sale to persons who comply with the occupancy requirements. A letter must be sent to the County requesting permission to rent the unit until sold. A lease of not less than (6) months must be provided to the tenants with a sixty (60) day move out clause upon notification that the unit is sold. C. Occupants may request waivers to the provisions of these Guidelines concerning Rentals by providing a written request to the County Housing Department, which will then be forwarded to the County Commissioners for their consideration. D. Eagle County may charge an administrative fee for processing rental requests. VII. ANNUAL VERIFICATION REQUIRED; PENALTIES FOR VIOLATION A. No later than February 1st of each year, the owner of the Unit shall submit two copies of a sworn affidavit on a form to be obtained from Eagle County Housing Division, to the County verifying that the Unit continues to be Owner occupied in accordance with these Guidelines, that the occupant has worked thirty hours per week for the previous year or earned 75 % of his/her earnings in Eagle County, where the occupant has worked and other information which County may require. B. If the County determines that there has been a violation of the Guidelines or the Master Deed Restriction, the Owner of the Unit shall be found to be in noncompliance. Penalties the County may assess against the owner include, but shall not be limited to eliminating resale gain, requiring sale of the Unit, penalties and remedies as identified in the Master Deed Restriction and/or penalties found in the Eagle County Land Use Regulations. Any misrepresentation by an applicant in submittal material shall disqualify the applicant from purchasing a Miller Ranch Unit. C. In the event that the Owner of a Unit fails to cure any breach of the Master Deed Restriction of these Guidelines the County may resort to any and all available legal action, including but not limited to, specific performance of the Master Deed Restriction, a mandatory injunction or require the sale of the Property of Unit by Owner. The costs of such sale shall be taxed against the proceeds of the sale with the balance being paid to the Owner. 15 s ~- D. If a violation of the Master Deed Restriction or these Guidelines is discovered, County shall send a notice of violation to the Owner detailing the nature of the violation and allowing the owner fifteen (15) days to cure. Said notice shall state that the Owner may request a hearing before the Board of County Commissioners (or such other entity as the Board of County Commissioners may designate) to determine the merits of the allegations. If no hearing is requested and the violation is not cured within the fifteen (15) day period, the Owner shall be considered in violation of this Agreement. If a hearing is held before the Board of County Commissioners, or its designee, the decision of the Board of County Commissioners or its designee, based on the record of such hearing shall be final for the purpose of determining if a violation has occurred. If the Board or its designee determines that there has been a violation of the occupancy standards, the owner of the Unit shall be found to be in non-compliance. VIII. SUBNIITTAL REQUIREMENTS In conjunction with completing an application to purchase a Unit, the applicant shall provide, upon request by the County, the following documentation as proof of residency and employment: A. Federal Income Tax return forms. Applicant must provide the last three (3) years of Federal Income Tax Returns, an audited financial statement if available, or acceptable documentation to the County. B. Verification of current employment in Eagle County or proof of volunteer work to satisfy the requirements of Section V(B)(1)(e)(i.e., wage stubs, employer name, address and phone number or other appropriate documentation as requested by the County). C. Landlord verification (proof of residency, physical address). D. Valid Colorado Driver's License (address, issue date). E. Prequalification for a loan from a bank or mortgage company. F. Deposits for down payment shall be verified by the holder of such funds. G. Any co-ownership interests other than joint tenancy or tenancy-in-common must be approved by the County. A. Any documentation which the County deems necessary to make a determination. 16 • • IX. FORECLOSURE In the event of a foreclosure or of acceptance of a deed in lieu of foreclosure by the holder of a promissory note secured by a first deed of trust on a Unit, Eagle County shall have the option to purchase the Property which shall be exercised as set forth in the Master Deed Restriction. X. MODIFICATION. The Guidelines may be modified by the Board of County Commissioners. XI. ADDITIONAL INFORMATION For additional information, contact the Housing Division of Eagle County. • EXHIBIT "A" Permitted Capital Improvements The term "Permitted Capital Improvement" as used in the Agreement shall only include the following: a. Improvements or fixtures erected, installed or attached as permanent, functional, non-decorative improvements to real property, excluding repair, replacement and/or maintenance improvements; b. Improvements for energy and water conservation; c. Improvements for health and safety protection devices; d. Improvements to add and/or finish permanent/fixed storage space; and/or e. Improvements to finish unfinished space. f. The cost of adding decks and balconies, and any extension thereto; g. Except where the Homeowners' Association maintains building exteriors (from basic dues and not special assessments), the following major maintenance items may be included as "Permitted Capital Improvements" with an appropriate reduction for the life of the improvements: i. Exterior painting, to be amortized over three (3) years. (i.e. In the first year the full cost of painting could be added to the base price; in the second year two-thirds of the cost could be added, in the third year one- third could be added and after three years none of the cost could be added.) ii Roof to be amortized over 10 years. iii. Exterior windows to be amortized over 10 years. 2. Permitted Capital Improvements as used in this Agreement shall NOT include the following: a. Upgrades/replacements of appliances, plumbing and mechanical fixtures, carpets and other similar items included as part of the original construction of the unit; b. Jacuzzi, saunas, steam showers and other similar items; c. Improvements required to repair, replace and maintain existing fixtures, appliances, plumbing and mechanical fixtures, intef-ior painting, carpeting and other similar items; and/or; d. Upgrades or addition of decorative items, including lights, window coverings and other similar items. 3. All Permitted Capital Improvement items and costs shall be approved by the County staff prior to being added to the Maximum Resale Price as defined herein. G:~DHM~BerryCreek~Deed Restrictions-Guidlines~Employee Housing GuidelinesrevisedCLEAN.DOC EXHIBIT B SAMPLE CALCULATIONS Example 1: Home is purchased on January 1, 1995 for $100,000. The seller wishes to sell in December 1997. To determine maximum sales price: Look to table of Average Wage prepared by Colorado Department of Labor and Employment consider percentage increase for Eagle County for each year in question: 1995 - 4.81% 1996 - 5.47% 1997 - 5.82% 1995- owned entire year- $100,000 x .0481 = $4,810. $100,000 + $4,810 = $104,810.00 1996- owned entire year- $104,810 x.0547 = $5,733. $104,810 + $5733 = $110,543.00 1997- owned entire year- $110,543 x.0582 = $6433. $110,543 + $6433 = $116,976.00 Thus Maximum Sales Price is $116,976 plus any permitted capital improvement and actual sales costs not to exceed 2% of maximum sale price. - Example 2: Home is purchased on January 1, 1995 for $100,000. Seller wishes to sell in December 1999. To determine maximum sales price: Look to table of Average Wage prepared by Colorado Department of Labor and Employment and consider percentage increase for Eagle County for each year in question: 1995 - 4.81% 1996 - 5.47% 1997 - 5.82% 1998 - 6.46% 1999 - 4.72 1995- owned entire year- $100,000 x .0481= $4,810. $100,000 + $4,810 = $104,810.00 1996- owned entire year- $104,810 x.0547 = $5,733. $104,810 + $5733 = $110,543.00 1997- owned entire year- $110,543 x.0582 = $6433. $110,543 + $6433 = $116,976.00 1998- owned entire year- $116,976 x.06 (because percentage increase was in excess of - 6%and restriction caps the appreciation at that figure) _ $7,018. $116,976 + $7018= $123,994 1999- owned entire year- $123,994 x .0472 =$5852. $123,994 + $5852 = $129,846 Thus Maximum Sales Price is $129,846 plus permitted capital improvements and actual sales ~ ~ costs not to exceed 2% of maximum sale price. Example 3: Home is purchased on January 1, 1995 for $100,000. The seller closed on a sale in April, 1997. To determine maximum sales price: Look to table of Average Wage prepazed by Colorado Department of Labor and Employment and consider percentage increase for Eagle County for each year in question: 1995 - 4.81% 1996 - 5.47% 1997 - 5.82% 1995- owned entire yeaz- $100,000 x .0481 = $4,810. $100,000 + $4,810 = $104,810.00 1996- owned entire yeaz- $104,810 x.0547 = $5,733. $104,810 + $5733 = $110,543.00 1997- owned first quarter and part of second quarter of 1997. Owner receives credit for both first and second quarter. $110,543 x .0582 x .5 = $3216 $110,543 + $3216= $113,759. Thus Maximum Sales Price is $113,759 plus any permitted capital improvement and actual sales costs not to exceed 2% of maximum sale price. Example 4: Home is purchased in July, 1995 for $100,000. The seller closed on a sale in December 1997. To determine maximum sales price: Look to table of Average Wage prepazed by Colorado Department of Labor and Employment and consider percentage increase for Eagle County for each yeaz in question: 1995- 4.81% 1996-5.47% 1997-5.82% 1995- owned into the 3rd quarter. $100,000 x.0481 x.75 = $3607 $100,000 + $ 3607 = $103,607. 1996- owned entire yeaz- $103,607 x .0547 =$5667. $103,607 + 5667 = $109,274 1997- owned entire yeaz- $109,274 x .0582 =$6359. $109,274 + 6359 = $115,633 Thus Maximum Sales Price is $115,633 plus any permitted capital improvement and actual sales costs not to exceed 2% of maximum sale price. G:\dhm\calculation.wpd Average wage per job and percenta nge Source: Colorado Department of Labor & Employment Year Eagle County Colorado 1985 15,052 1986 15,519 3.10% 1987 16,092 3.69% 1988 16,729 3.95% 1989 17,382 3.91 1990 18,438 6.07% 1991 19,421 5.33% 1992 21,196 9.14% 1993 21,738 2.56% 1994 21, 990 1.16% 26,162 1995 23,048 4.81% 27,122 3.67% 1996 24,309 5.47% 28,517 5.14% 1997 25,722 5.82% 30,057 5.40% 1998 27,384 6.46% 32,257 7.32% 1999 28,675 4.72% 34,189 5.99% 2000 30,276 5.58% 37,166 8.71 2001 31,583 4.32% 37,960 2.14%