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HomeMy WebLinkAbout2025-20 A Resolution Approving the Deed Restriction for West Middle CreekRESOLUTION NO. 20 Series of 2025 A RESOLUTION APPROVING THE DEED RESTRICTION FOR WEST MIDDLE CREEK WHEREAS, the Town of Vail is planning a development project for the West Middle Creek property; WHEREAS, the purpose of the development project is to provide workforce rental housing; WHEREAS, the Town Council wishes to approve the Deed Restriction in substantially the form attached hereto, and to authorize the Mayor and the Vail Home Partners Corporation to execute the Deed Restriction at closing. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. The Town hereby approves the Deed Restriction on the West Middle Creek property in substantially the form attached hereto and incorporated herein by this reference, subject to final approval by the Town Attorney. Section 2. The Town Council hereby authorizes the Mayor and the Vail Home Partners Corporation to execute the Deed Restriction at closing. INTRODUCED, PASSED AND ADOPTED at a special meeting of the Town Council of the Town of Vail held this 17th day of April, 2025. ________________________________ Travis Coggin, Mayor ATTEST: _________________________________ Stephanie Johnson, Acting Town Clerk 1 DEED RESTRICTION AGREEMENT (West Middle Creek) THIS DEED RESTRICTION AGREEMENT (the "Agreement") is entered into this _______ day of _______________, 20__ (the "Effective Date") by and between the Town of Vail, Colorado, a Colorado home rule municipality with an address of 75 South Frontage Road, Vail, CO 81657 (the "Town"), and Vail Home Partners Corporation, a Colorado corporation with an address of ___________________ ("VHPC") (each a "Party" and collectively the "Parties"). WHEREAS, VHPC owns the real property described as _____________ (the "Property") WHEREAS, the Town, VHPC and Corum Real Estate Group, Inc., a Colorado corporation are cooperatively developing the Property for a multifamily residential employee and market rate rental housing development; and WHEREAS, the Town and VHPC wish to permanently restrict the occupancy, use and resale of the Property. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows: 1. Property. All 268 residential dwelling units on the Property (each a "Unit") are hereby burdened with the covenants and restrictions specified in this Deed Restriction, in perpetuity. 2. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: a. Guidelines means the current version of the West Middle Creek Employee Housing Guidelines adopted by the Town. The version adopted as of the Effective Date is attached hereto as Exhibit A and incorporated herein by this reference. b. Principal Place of Residence means the home or place in which one's habitation is fixed and to which one has a present intention of returning after a departure or absence therefrom. In determining what is a Principal Place of Residence, the Town shall consider the criteria set forth in C.R.S. § 31-10-201(3), as amended. c. Qualified Resident means an individual: i. Who works an average of 30 hours or more per week at a business in Eagle County, Colorado that holds a valid and current business license, or pays sales taxes, or is otherwise generally recognized as a legitimate business; and earns at least 75% of their income from such business; or ii. Was a Qualified Owner when the individual purchased the Property, but then retired while owning the Property, was 60 years of age or older at the time of 2 retirement; for the 5 years immediately prior to retirement, worked an average of 30 hours or more per week at a business in Eagle County that held a valid and current business license, or paid sales taxes, or was otherwise generally recognized as a legitimate business, and earned at least 75% of their income from such business during such 5-year period; and iii. Does not own any interest, in any capacity, in any developed residential property or dwelling unit located in Eagle County, Colorado. d. Transfer means any sale, conveyance, assignment or transfer, voluntary or involuntary, of any interest in the Property, including without limitation a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest and an interest evidenced by any contract by which possession of the Property is transferred and an Owner retains title; provided that the lease of a room or rooms within the Property to a Qualified Tenant in accordance with this Agreement shall not constitute a Transfer. 3. Occupancy Restrictions. a. Each Restricted Unit shall be continuously occupied by at least one Qualified Resident as their principal place of residence. b. No business activity shall occur on or in the Property, other than as permitted within the zone district applicable to the Property. c. No later than February 1 st of each year, VHPC shall submit one copy of a sworn affidavit, on a form provided by the Town, verifying that every Restricted Unit is occupied in accordance with this Agreement and the Guidelines. 4. Transfer. a. VHPC shall first notify the Town if VHPC wishes to Transfer the Property. The Town shall have the first option to purchase the Property. b. Should the Town determine not to purchase the Property, VHPC shall sell the Property to a buyer who agrees to comply with this Deed Restriction. c. At closing, the buyer shall execute, in a form satisfactory to the Town and for recording with the Eagle County Clerk and Recorder, a document acknowledging this Deed Restriction and expressly agreeing to be bound by it. 5. Consensual Lien; Right to Redeem. For the purpose of securing performance under this Agreement and creating in favor of the Town a right to redeem in accordance with Part 3 of Article 38 of Title 38, C.R.S., as amended, VHPC hereby grants to Town a consensual lien on the Property. Such lien shall not have a lien amount. 6. Breach. a. It shall be a breach of this Agreement for VHPC, Corum or a Qualified Resident to violate any provision of this Agreement. 3 b. If the Town has reasonable cause to believe that a violation of this Agreement exists on the Property, the Town may inspect the Property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing VHPC with 24 hours written notice. This Agreement shall constitute permission to enter the Property during such times upon such notice, provided that VHPC shall obtain the permission of the affected Qualified Resident prior to the Town entering into any Restricted Unit. c. If the Town discovers a violation of this Agreement, the Town shall notify VHPC, and allow 15 days to cure. 7. Remedies. a. Any Transfer in violation of this Agreement shall be wholly null and void and shall confer no title whatsoever upon the purported buyer. Each and every Transfer, for all purposes, shall be deemed to include and incorporate by this reference the covenants contained in this Agreement, even if the Transfer documents fail to reference this Agreement. b. The Town may pursue all available remedies for violations of this Agreement, including without limitation specific performance or a mandatory injunction requiring a Transfer of the Property, with the costs of such Transfer to be paid out of the proceeds of the sale. c. In addition to the specific remedies set forth herein, the Town shall have all other remedies available at law or equity, and the exercise of one remedy shall not preclude the exercise of any other remedy. 8. Foreclosure. a. Within 5 days of receipt, VHPC shall notify the Town, in writing, of any notification received from a lender of past due payments or defaults in payments or other obligations, any notice of foreclosure under the first deed of trust or any other subordinate security interest in the Property, or when any payment on any indebtedness encumbering the Property is required to avoid foreclosure of the first deed of trust or other subordinate security interest in the Property. b. Within 60 days after receipt of any notice described herein, the Town may (but shall not be obligated to) proceed to make any payment required to avoid foreclosure. Upon making any such payment, the Town shall place a lien on the Property in the amount paid to cure the default and avoid foreclosure, including all fees and costs resulting from such foreclosure. c. Notwithstanding any other provision of this Agreement, in the event of a foreclosure, acceptance of a deed-in-lieu of foreclosure, or assignment, this Agreement shall remain in full force and effect. d. The Town shall have 30 days after issuance of the public trustee's deed or the acceptance of a deed in lieu of foreclosure by the holder in which to purchase by tendering to the holder, in cash or certified funds, an amount equal to the redemption 4 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 related to the foreclosure. 11. Miscellaneous. a.Modification. This Agreement may only be modified by subsequent written agreement of the Parties. b. Integration. This Agreement and any attached exhibits constitute the entire agreement among the Parties, superseding all prior oral or written communications. c. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assigns. d. Severability. If any provision of this Agreement is determined to be void by a court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. e. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. f.Assignment. There shall be no transfer or assignment of any of the rights or obligations of VHPC under this Agreement without the prior written approval of the Town. g. Third Parties. There are no intended third-party beneficiaries to this Agreement. h.No Joint Venture. Notwithstanding any provision hereof, the Town shall never be a joint venture in any private entity or activity which participates in this Agreement, and the Town shall never be liable or responsible for any debt or obligation of any participant in this Agreement. i. Notice. Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented or sent pre-paid, first class United States Mail to the Party at the address set forth on the first page of this Agreement. j. Recording. This Agreement shall be recorded with the Eagle County Clerk and Recorder. The benefits and obligations of the Parties under this Agreement shall run with the land, and shall be binding on any subsequent holder of an interest in the Property. k. Savings Clause. If any of the terms, covenants, conditions, restrictions, uses, limitations, obligations or options created by this Agreement are held to be unlawful or void for violation of: the rule against perpetuities or some analogous statutory provision; the rule restricting restraints on alienation; or any other statutory or common law rules imposing like or similar time limits, then such provision shall continue only for 5 the period of the lives of the current duly elected and seated members of the Vail Town Council, their now living descendants, if any, and the survivor of them, plus 21 years. l.Responsibility. Any obligations of VHPC under this Agreement may be performed by VHPC’s duly authorized agent, including without limitation a property management company, provided that VHPC remains fully responsible for the actions of such agent. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. TOWN OF VAIL, COLORADO ________________________________ Travis Coggin, Mayor ATTEST: _______________________________ Stephanie Johnson, Acting Town Clerk VAIL HOME PARTNERS CORPORATION By: ________________________________ STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was subscribed, sworn to and acknowledged before me this ___ day of ___________________, 20_, by ________________, as ____________ of Vail Local Housing Partners, Inc. Witness my hand and official seal. ______________________________ Notary Public (S E A L) My commission expires: 6 EXHIBIT A WEST MIDDLE CREEK EMPLOYEE HOUSING GUIDELINES 1. General. These Guidelines are intended to supplement the Deed Restriction Agreement for West Middle Creek (the "Deed Restriction"). These Guidelines may be updated by Town staff as necessary, and the current version of these Guidelines shall always control over any prior version. In the event of any conflict between these Guidelines and the Deed Restriction, the Deed Restriction shall control. Under the Deed Restriction, VHPC shall be responsible for compliance with these Guidelines. 2. Application. a. Required Information. Each application to lease a Restricted Unit shall be accompanied by the following: i. Verification that the applicant is a Qualified Resident, including verification of the applicant’s current employment and income (e.g. most recent pay stubs, employer name, address, telephone number, location of work, and other appropriate documentation); ii. A valid form of identification; iii. A copy of the applicant’s prior year’s federal tax return; iv. A copy of IRS Form 8821 authorizing the Internal Revenue Service to disclose the tenant’s confidential tax information to the Town; and v. Any other documentation that the Town deems necessary to make a determination of eligibility. b. The applicant's signature on the application certifies that all information submitted in such application is true, that the applicant has read the Guidelines and agrees to comply with them, that the applicant understands that they may not sublet the Residential Unit, that the applicant authorizes VHPC or its agent to verify any and all past or present employment and residency information and all other information submitted by an applicant. 3. Disability. Should a Qualified Resident become an individual with a disability and, because of such disability, be unable to meet the requirements of the Deed Restriction to remain a Qualified Resident, the Qualified Resident shall notify the Town, in writing, of the nature of the disability. If the disability is permanent, the Qualified Resident shall remain a Qualified Resident despite the disability. If the disability is temporary and the Qualified Resident becomes able to return to work, to remain a Qualified Resident, the Qualified Resident must return to work when the disability ceases. Notwithstanding anything to the contrary in these Guidelines or the Deed Restriction, the Town and VHPC will make all reasonable accommodations necessary under the Americans with Disabilities Act. 7 4. Interpretation.In the evaluation of an application to lease a Restricted Unit, the following shall apply: a. An applicant’s physical place of employment is controlling, not the mailing address; b. Claims of employment by an applicant that are unable to be verified will not be utilized in determining an applicant’s eligibility; and c. Seasonal work and part-time work alone may not be adequate to meet the minimum 30 hours per week average annual requirement, but may augment other employment to meet the minimum eligibility requirements. 5. Priority. The priorities for each Unit are as follows: a. A Qualified Resident employed by a business within the Town; and next, b. A Qualified Resident who is employed by a business located in Eagle County, but outside the Town. 6. Misrepresentation. Any misrepresentation by an applicant in any submittal shall disqualify such applicant from being eligible to lease a Unit, and shall be grounds for eviction if such misrepresentation is revealed after such applicant's occupancy. 7. Annual Verification. No later than February 1st of each year, VHPC shall submit a sworn affidavit, on a form provided by the Town, verifying that every Restricted Unit is occupied in accordance with the Deed Restriction and these Guidelines. The affidavit shall be accompanied by the following supporting documentation: a. Verification of current employment and employment during the prior year (paystubs with employer's name, address and contact information); b. Signed authorization allowing the Town and VHPC to discuss employment details with each Qualified Resident's employer; c. Each Qualified Resident's federal income tax return from the prior year, together with an executed Internal Revenue Service Form 8821 or equivalent; and d. Copies of all leases of Restricted Units during the prior year.