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HomeMy WebLinkAboutEmployee HousingII October 26, 2009 VIA ELECTRONICAND HAND DELIVERY Mr. George Ruther, AICP Director of Community Development Town of Vail 75 South Frontage Road Vail, Colorado 81657 Re: Second Amended Employee Housing Letter Dear George: Over the past few years, Solaris Property Owner, LLC, its affiliates, and /or members (collectively, "Solaris ") have secured a number of Town approved deed restrictions for the occupancy, rental and transfer of employee housing units in the Town (the "Deed Restrictions "). On August 16, 2007, Solaris and the Town memorialized their mutual understanding concerning the status of the Deed Restrictions by executing that certain letter Re: Employee Housing for the Town of Vail attached hereto as Exhibit A (the "Employee Housing Letter"). On September 9, 2009, Solaris and the Town amended the Employee Housing Letter by executing that certain letter Re: Employee Housing for the Town of Vail attached hereto as Exhibit B (the "First Amended Employee Housing Letter "). Since that time, Solaris has secured and the Town has accepted one (1) additional deed restriction, a copy of which is attached hereto as Exhibit C (the "Third Additional Restriction "). The Deed Restrictions and the Third Additional Restriction are collectively referred to below as the "Deed Restrictions." The purpose of this letter is to: (a) confirm the Town's acceptance of the Third Additional Restriction; (b) confirm that the Third Additional Restriction complies with the Town Zoning Regulations; and (c) to confirm the employee- housing "Credit" or "Credits" associated with the Third Additional Restriction. Pursuant to the First Amended Employee Housing Letter, Solaris employee housing credits stand as follows: ADDRESS UNIT BR SF CREDITS BED CREDITS Original Restrictions - - 9,052 24 5197 Black Gore Drive B -6 2 1,080 3 2388 Garmisch 1 -132 5 2,160 6 Removed Restriction - 3 (1,338) (4) Total - - 10,954 29 1 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 1 Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com r After accounting for the Third Additional Restriction, the employee housing Credits for Solaris stand as follows: ADDRESS UNIT BR SF CREDITS BED CREDITS Prior Employee Housing Credits - - 10,954 29 2388 Garmisch 2 -132 5 2,160 6 Total - - 13,114 35 Solaris now possesses Credits sufficient to cover thirty -five (35) employee housing beds. If Solaris elects to apply the Credits against the twenty -two (22) bed requirement established in Town Ordinance No. 5, Series of 2006, as amended (the "Solaris Ordinance "), the Town will accept such Credits in full satisfaction of Solaris' employee housing obligations under the Solaris Ordinance (and Solaris will have thirteen (13) surplus Credits for use elsewhere). Alternatively, if Solaris elects to apply the Credits to a project with a requirement based on square footage, Solaris' Credits will cover thirteen thousand one hundred fourteen (13,114) square feet of employee housing. Solaris may redeem the Credits in satisfaction of housing requirements calculated according to either of the methodologies described above or any combination thereof. For purposes of this paragraph, Solaris shall mean Solaris Property Owner, LLC, its successors, assigns and designees from time -to -time. Finally, Solaris reserves the right to replace any Deed Restrictions if Solaris identifies suitable alternate employee housing satisfactory to the Town's staff. If Solaris replaces any of the Deed Restrictions as set forth above, (a) the Town's staff shall administratively furnish Solaris with recordable releases, forever releasing and removing any such Deed Restriction so replaced, and (b) the parties shall administratively modify this letter to reflect such new information. Very truly yours, Solaris Property Owner, LLC Reed F. Weily Authorized Agent AGREED AND ACKNOWLEDGED THIS31 DAY OF OCTOBER, 2009 By: 1 George Ruther, AICP Director of Community Development Town of Vail 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 ? Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com Exhibit A Employee Housing Letter (Attached) A -1 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 1 Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com Exhibit B First Amended Employee Housing Letter (Attached) B -1 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 1 Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com Exhibit C Third Additional Deed Restriction (Attached) C -1 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 1 Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com September 9, 2009 VIA EMAIL AND HAND DELIVERY Mr. George Ruther, AICP Director of Community Development Town of Vail 75 South Frontage Road Vail, Colorado 81657 Re: Employee Housing for the Town of Vail (the "Town ") Dear George: Over the past few years, Solaris Property Owner, LLC, its affiliates, and /or members (collectively, "Solaris ") have secured a number of Town approved deed restrictions for the occupancy, rental and transfer of employee housing units in the Town (the "Deed Restrictions "). On August 16, 2007, Solaris and the Town memorialized their mutual understanding concerning the status of the Deed Restrictions by executing that certain letter Re: Employee Housing for the Town of Vail attached hereto as Exhibit A (the "Employee Housing Letter "). Since that time, Solaris has secured and the Town has accepted two (2) additional deed restrictions, copies of which are attached hereto as Exhibit B (the "First Additional Restrictions "). The original Deed Restrictions and the First Additional Restrictions are collectively referred to below as the "Deed Restrictions." The purpose of this letter is to: (a) confirm the Town's acceptance of the First Additional Restrictions; (b) confirm that the First Additional Restrictions comply with the Town Zoning Regulations; (c) to confirm the employee - housing "Credit" or "Credits" associated with the First Additional Restrictions; and (e) account for certain other matters concerning the Deed Restrictions. Pursuant to the Employee Housing Letter, Solaris originally secured deed restrictions on the nine (9) properties below (collectively, the "Units "): ADDRESS UNIT BR SF CREDITS BED CREDITS 2560 Kinnikinnick F -5 3 1,604 4 2753 Kinnikinnick B -6 3 1,604 4 2510 Kinnikinnick L -3 3 1,628 4 2500 Kinnikinnick K -1 3 1,628 4 2550 Kinnikinnick J -4 3 1,628 4 2111 North Frontage A -3 3 1,330 4 2111 North Frontage A -15 3 1,330 4 1524 Buffehr Creek A -26 3 1,338 4 2456 Chamonix B -6 2 960 3 Total - - 13,050 35 Prior to the date of this letter, Solaris assigned the three (3) italicized Deed Restrictions to the Willows project (the "Willows Restrictions ") in order to satisfy the provisions of Ordinance No. 30, Series of 2006 (the "Willows Ordinance "). The Willows Ordinance required the Willows to 1 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 1 Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com provide housing for eleven (11) employees, and the Willows Restrictions covered twelve (12) employees. Under the terms of the agreements between Solaris, Willows and the Town, Solaris was given the benefit of the lone surplus Credit. Thus, after accounting for the Willows Restrictions, Solaris had the following remaining Credits: ADDRESS UNIT BR SF CREDITS BED CREDITS 2650 Kinnikinnick F -5 3 1,604 4 2753 Kinnikinnick B -6 3 1,604 4 2510 Kinnikinnick L -3 3 1,628 4 2500 Kinnikinnick K -1 3 1,628 4 2550 Kinnikinnick J -4 3 1,628 4 Willows Credit - - - 1 2456 Chamonix B -6 2 960 3 Total - - 9,052 24 As noted above, Solaris has secured the First Additional Restrictions since the parties executed the Employee Housing Letter. After accounting for the First Additional Restrictions, the employee housing Credits for Solaris stand as follows: ADDRESS UNIT BR SF CREDITS BED CREDITS Original Restrictions - - 9,052 24 5197 Black Gore Drive B -6 2 1,080 3 2388 Garmisch 1 -62 5 2,160 6 Total after 2388 Restriction - - 12,292 33 Solaris now wishes to remove the Deed Restriction placed on 1524 Buffehr Creek Road, Unit A- 26, and originally allocated to the Willows (the "Removed Restriction "). After accounting for the Removed Restriction, the employee housing Credits for Solaris stand as follows: SF CREDITS BED CREDITS Total before Removed Restriction 12,292 33 Removed Restriction (1,338) (4) Total after Removed Restriction 10,954 29 After subtracting the Removed Restriction, Solaris now possesses twenty -nine (29) Bed Credits. If Solaris elects to apply the Credits against the twenty -two (22) bed requirement established in Town Ordinance No. 5, Series of 2006, as amended (the "Solaris Ordinance "), the Town will accept such Credits in full satisfaction of Solaris' employee housing obligations under the Solaris Ordinance (and Solaris will have seven (7) surplus Bed Credits for use elsewhere). Alternatively, if Solaris elects to apply the Credits to a project with a requirement based on square footage, Solaris' Bed Credits will cover 10,954 square feet of employee housing. Solaris may redeem the Bed Credits in satisfaction of housing requirements calculated according to either of the methodologies described above or any combination thereof. For purposes of this paragraph, Solaris shall mean Solaris Property Owner, LLC, its successors, assigns and designees from time - to -time. Finally, Solaris reserves the right to replace any Deed Restrictions if Solaris identifies suitable alternate employee housing satisfactory to the Town's staff. If Solaris replaces any of the Deed 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 ? Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com Restrictions as set forth above, (a) the Town's staff shall administratively furnish Solaris with recordable releases, forever releasing and removing any such Deed Restriction so replaced, and (b) the parties shall administratively modify this letter to reflect such new information. Very truly yours, Solaris Property Owner, LLC Reed F. Weily Authorized Agent > AGREED AND ACKNOWLEDGED THIS A /DAY OF SEPTEMBER, 2009 By: l George Ruther, AICP Director of Community Development Town of Vail 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 � Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com Exhibit A Employee Housing Letter (Attached) A -1 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 1 Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com Loll August 15, 2007 VIA E MAIL AND HAND DELIVERY Mr. George Ruther, AICP Director of Community Development Town of Vail 75 South Frontage Road Vail, Colorado 81657 Re: Employee Housing for the Town of Vail (the " Town ") Dear George: As you are aware, Solaris Property Owner, LLC, and its affiliates (collectively, "SPO ") have recorded a number of Town approved deed restrictions for the occupancy, rental and transfer of employee housing units in the Town (the " Deed Restrictions "). The purpose of this letter is to: (a) confirm the Town's acceptance of the Deed Restrictions; (b) confirm that such the Deed Restrictions comply with the Town Zoning Regulations; and (c) to identify the employee - housing " Credit " or " Credits " associated with each Deed Restriction. SPO has recorded Deed Restrictions on the nine (9) properties outlined below (collectively, the " Units "): NO. ADDRESS UNIT BEDROOMS Q. FT. BED CREDIT l 2650 Kinnikinnick F -5 3 1,604 4 2 2753 Kinnikinnick B-6 3 1,604 4 3 2510 Kinnikinnick Ira 3 1,628 4 4 2500 Kinnikinnick K -1 3 1,628 4 5 2550 Kinnikinnick .1-4 3 1,628 4 A 2111 a4,r111 T'ruulne R( )Wl 4-3 l 960 4 7 2111 North r ►t „�t,,,� Road �� -1: ; - a TOTAL CREDITS 1524 Bu ehr Cr ek Road A -26 3 29;60 4 9 2456 Chamonix B-6 2 3 TOTAL CREDITS 35 Prior to the date of this letter, SPO assigned the three (3) highlighted Deed Restrictions to the Willows project (the " Willows Restrictions "), but only to the extent necessary to satisfy the provisions of Ordinance No. 30, Series of 2006 (the " Willows Ordinance "). The Willows Ordinance only required the Willows to provide housing for eleven (11) employees, and the Willows Restrictions provide housing for twelve (12) employees. Under the terms of SPO's agreement with the Willows and the Town, SPO shall have the benefit of the single remaining Credit. After accounting for the Willows Restrictions, SPO's housing Credits are as follows: NO. ADDRESS UNIT BEDROOMS SQ. FT. BED 1 2650 Kinnikinnick F -5 3 1 604 4 2 2753 Kinnikinnick B -6 3 1,604 4 3 2510 Kinnikinnick L -3 3 1,628 4 4 2500 Kiunikinnick K -1 3 1,628 1 4 5 2550 Kinnikinnick J - 4 3 1,628 4 6 2456 Chamonix B-6 2 960 3 7 Willows Credit - - - I TOTAL CREDITS 9,052 24 • 22 11 Nolth Fror.l�,yt Its 1 SWte A I va-, '.. i:.ua t';ti:l , r,- y7C aly.i`.u': 1 t!�x li .n'r4 i., SPA ii9V03I•CUgr In summary, SPO currently possesses Credits sufficient to cover housing for twenty -four (24) employees. If SPO elects to apply the Credits against the twenty -two (22) bed requirement established in Town Ordinance No. 5, Series of 2006, as amended (the " Solaris Ordinance "), the Town will accept such Credits in full satisfaction of SPO's employee housing obligations under the Solaris Ordinance (and SPO will have two (2) surplus Credits for future use). Alternatively, if SPO elects to apply the Credits to a project with a requirement based on square footage, SPO's Credits will count for 9,052 square feet of employee housing. SPO may redeem the Credits in satisfaction of housing requirements calculated according to either of the methodologies described above or any combination thereof. For purposes of this paragraph, SPO shall mean Solaris Property Owner, LLC, its successors, assigns designees from time -to -time. Finally, as you are aware, the Meadow Creek Condominium Association recently amended its Declaration to prevent condominium owners from deed restricting their units. The actions of the Association forced SPO to deed restrict its properties located in Meadow Creek prematurely in order to ensure that such Deed Restrictions would trump the Amended Declarations. Consequently, SPO would like the ability to replace the Deed Restrictions on the Meadow Creek Units, in its discretion, if SPO identifies suitable alternate employee housing opportunities prior to applying for a Certificate of Occupancy for Solaris. If SPO replaces any of the Meadow Creek Deed Restrictions as set forth above, (a) the Town shall furnish SPO with recordable releases, forever releasing and removing any such Deed Restriction so replaced, and (b) the parties shall modify this letter to reflect such new information. Very truly yours, Solaris Property Owner, LLC Reed F. Weily General Counsel AGREED AND ACKNOWLEDGED THIS Iv DAY OF AUGUST. 2001 By: h L && , 2 . 4 -, 0 Ej _ •► George Ruther, AICP Director of Community Development, Town of Vail ,i �,�u<1 �. .t..ri y_. �-�?•_ __ '- iyl�.� ,� � ud �- .. g r 1 ,i. 2 -.0 ,i�. i , ? +'.hh Exhibit B First Additional Restrictions (Attached) B -1 2211 North Frontage Rd 1 Suite A 1 Vail, Colorado 81657 1 Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY, RENTAL AND TRANSFER OF AN EMPLOYEE HOUSING UNIT THIS DEED RESTRICTION AGREEMENT ( "Deed Restriction ") is entered into this 4 ( 9 ' day of September, 2008 by and between the TOWN OF VAIL, COLORADO and 2388 GARMISCH LLC (the "Owner "). WHEREAS, the Town of Vail, Colorado (the "Town ") has adopted employee housing ordinances, whereby Employee Housing Units ( "EHUs ") must be built or otherwise acquired to mitigate the employee housing impacts produced by new residential and commercial development. NOW, THEREFORE, for value received, the parties to this Deed Restriction do hereby agree to, declare and impose the following covenants and restrictions on the property herein specified: I. Property The following real property (the "Property") is an EHU and is hereby burdened with the covenants and restrictions specified in this Deed Restriction: Physical Address: 2388 Garmisch Drive Unit 1 -B2 Vail, Colorado 81657 Legal Description: CONDO: ALPEN CHALETS TOWNHOUSE UNIT 1- B2 DESC: BLDG 2 BK -0692 PG -0895 QCD 04 -16-96 8200811408 SWD 04 -24-08 The Employee Housing Unit (EHU), containing 2160 square feet, is hereby restricted as a Type IV EHU, which must comply with all the provisions of Chapter 13, Title 12 of the Town Code of Vail as amended. The Town shall record this Deed Restriction against the Property at the Owner's expense. 2. Definitions The following definitions shall apply to this Deed Restriction: a. Domestic Partner means two unmarried people, at least eighteen (18) years of age, who have lived together continuously for at least one (1) year and who are jointly responsible for basic living expenses incurred during their domestic partnership, provided that domestic partners may not be persons related to each other by blood or adoption such that their marriage would be barred in the State of Colorado. An individual shall be considered a domestic partner of an Owner upon presentation of a sworn affidavit to the Town. i i i b. Employee means a person who works an average of thirty (30) hours per week or more on a year round basis at a business located in Eagle County. I 91312008 C. Employee Housing Unit (EHU) means a dwelling unit which shall not be leased or rented for any period less than thirty (30) consecutive days, and shall be occupied by at least one person who is an employee. d. Non - Qualified Owner means any person who does not meet the definition of Employee, as it is defined in this Deed Restriction, and who is unable or unwilling to rent the Property to an Employee. e. Owner means either a Qualified Owner or a Non - Qualified Owner, as the context requires. f. Person means a natural person and excludes any type of entity. g. Qualified Owner means either an Employee who is qualified to own an ownership interest in the Property, or a person or entity that is not an Employee, but who is nevertheless qualified to own an ownership interest in the Property because the Property will be rented to an Employee pursuant to the terms of this Deed Restriction. h. Transfer means any sale, assignment or transfer, voluntary or involuntary, of any interest in the Property, including but not limited to, a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest, and an interest evidenced by a land contract by which possession of the Property is transferred and Owner retains title, but not an encumbrance. 3. Occupancy Restrictions The Property shall be continuously occupied by an Employee or a Qualified Owner, and shall not remain vacant for a period in excess of ninety (90) consecutive days. 4. Lease Restrictions If the Property is leased to an Employee, the following requirements shall apply: a. The Property shall not be leased for a period of less than thirty (30) consecutive days; b. The Property shall not be subdivided or divided into any form of timeshare unit or fractional fee club unit; and C. The Type II EHU may not be sold, transferred, or conveyed separately from the development with which it is associated. 5. Transfer a. Every Transfer shall be subject to this Deed Restriction except the following: i. A Transfer to an existing spouse or Domestic Partner if such person is a Qualified Owner; 2 91311008 0 ii. A Transfer by an Owner to a spouse or Domestic Partner if such person becomes the co -owner of the Property and is a Qualified Owner; iii. A Transfer between spouses as part of a marriage dissolution proceeding; or iv. A Transfer to an existing spouse or Domestic Partner of the Owner by devise or inheritance following the death of the Owner. b. If a Transfer occurs by devise or inheritance due to death of the Owner, the personal representative of the Owner's estate or the person inheriting the Property shall provide written notice to the Town within thirty (30) days of the date of death, and the following procedures shall apply: i. If the person inheriting the Property (the "Inheriting Owner ") is a Qualified Owner, he or she shall provide the Town with documentation proving his or her status as such, and the Town may determine if the Inheriting Owner is in fact a Qualified Owner. If the Inheriting Owner fails to provide the required documentation, he or she shall be deemed a Non - Qualified Owner. If the Inheriting Owner is a Qualified Owner, he or she shall succeed to the Owner's interest and obligations under this Deed Restriction. ii. If the Inheriting Owner is a Non - Qualified Owner, he or she shall be required to transfer the Property to a Qualified Owner. iii. If the Inheriting Owner chooses to Transfer the Property, he or she shall provide the Town with a Notice of Intent to Transfer within sixty (60) days of the date of the Owner's death. iv. Failure of an Inheriting Owner to follow the procedures in this Section shall constitute a default under this Deed Restriction and the Town may exercise any of the remedies set forth in this Deed Restriction. C. Any Transfer without satisfaction of the conditions of this Deed Restriction is prohibited. 6. Notice of Intent to Transfer If the Owner intends to Transfer the Property, the Owner shall promptly give the Town written notice of such intent ( "Notice of Intent to Transfer "), which shall include following: a. The address of the Property and the name of the Owner; b. The date on which the Owner intends to Transfer the Property; i I 4 h 3 C. Evidence to establish that the purchaser is a Qualified Owner, including the name of the purchaser's employer, and the address of the purchaser's place of employment; and K 91312008 IM d. If applicable, the name and employer of any Employee who leases the Property and a copy of the lease agreement between the Employee and the Owner. 7. Annual Verification No later than February V of each year, the Owner shall submit a sworn affidavit to the Town including the following information: a. Evidence to establish that the Property has been occupied throughout the year by a Qualified Owner or an Employee; b. The rental rate (if applicable); C. The Employee's employer (if applicable); and d. Evidence to demonstrate that at least one occupant of the Property is a Qualified Owner or an Employee. 8. Notice and Cure If the Town discovers a violation of this Deed Restriction, the Town shall notify the Owner of the violation and allow the Owner fifteen (15) days to cure. The notice shall state that the Owner may request a hearing before the Town Council within fifteen (15) days 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 Deed Restriction. If a hearing is held, the Town Council's decision shall be final. 9. Remedies There is hereby reserved to the parties hereto any and all remedies provided by law for violation of this Deed Restriction or any of its terms. a. If the Property is conveyed without compliance with this Deed Restriction, such conveyance shall be wholly null and void and shall confer no title whatsoever upon the purported buyer. Each and every conveyance of the Property, for all purposes, shall be deemed to include and incorporate by this reference the covenants contained in this Deed Restriction, even if they fail to reference this Deed Restriction. b. If the Owner fails to cure a violation of this Deed Restriction, the Town may resort to any and all available legal action, including, but not limited to, specific performance of this Deed Restriction or a mandatory injunction requiring the Transfer of the Property by the Owner, with the costs of such Transfer shall be paid out of the proceeds of the sale with the balance being paid to the Owner. C. If such request is made by the Town, the Owner irrevocably authorizes the holder of any mortgage or deed of trust against the Property to disclose to the Town if the Owner is delinquent in any payments due to any such mortgage or trust deed holder and the duration and amount of such delinquency at the time such inquiry is made by Town. c I 10. Foreclosure In the event of a foreclosure, acceptance of a deed in lieu of foreclosure, or assignment to the United States Secretary of Housing and Urban Development, this Deed Restriction shall remain in full force and effect. 4 9/3.11008 I L General Provisions a. Notices Any notice, consent or approval required by this Deed Restriction shall be given by either: mailing by certified mail, return receipt requested, properly addressed and with postage fully prepaid, to the address provided herein; or hand - delivery to the address provided herein. Notices shall be considered delivered on the date of delivery if hand - delivered or if both hand - delivered and mailed; or three days after the postmark, if mailed only. Notices shall be seat to the parties at the following addresses unless otherwise notified in writing: To the Owner: 2388 Garmisch LLC Attention: Mark Yare 2121 N Frontage Road W 181 Vail, Colorado 81657 To the Town: Town Attorney Town of Vail 75 South Frontage Road Vail, Colorado 81657 and Housing Coordinator Town of Vail 75 South Frontage Road Vail, Colorado 81657 b. Severability Whenever possible, each provision of this Deed Restriction shall be interpreted so as to be valid under applicable law, but if any provision of this Deed Restriction is declared invalid under applicable law, such provision shall be ineffective only to the extent of such invalidity or prohibition without invalidating the remaining provisions of this Deed Restriction. C. Governing Law and Venue This Deed Restriction shall be governed and construed in accordance with the laws of the State of Colorado, and venue for any legal action arising from this Deed Restriction shall be in Eagle County, Colorado. d. Successors The provisions and covenants contained in this Deed Restriction shall inure to and be binding upon the heirs, successors and assigns of the parties. This Deed Restriction shall be a burden upon and run with the Property for the benefit of the beneficiaries, their successors and assigns, who may enforce the covenants and compel compliance therewith through the initiation of judicial proceedings for, but not limited to, specific performance, injunctive relief, reversion, eviction, and damages. e. Modification This Deed Restriction may only be modified upon written agreement of the parties. 91312008 f. No Waiver No claim of waiver, consent or acquiescence with respect to any provision of this Deed Restriction shall be valid against any party hereto except on the basis of a written instrument executed by the parties. g. lntegxation The foregoing constitutes the entire agreement between the parties regarding the Deed Restriction and no additional or different oral representation, promise or agreement shall be binding on any of the parties hereto. h. Third -party beneficiaries There are no intended third -party beneficiaries to this Deed Restriction. [Signature pages follo wj 6 9/3/2008 IN WITNESS WHEREOF, the Parties hereto have executed this Deed Restriction on the date first set forth above. V 'I'OVt�l�l O AIL, COLORADO ftAUL ATTEST: Town Clerk 2388 GARMISCH LLC, by PRIMA PA G, INC, its sole member M i t STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was subscribed, swam to and acknowledged before me this 4 #1 day of September, 2008, by Mark Yare, as President of Prima Painting, Inc, sole member of 2388 Garmisch L•LC, the owner of the real property located at 2388 Garmi 'h D k , Unit I -B2 ail, C orado 1657. Witness my hand and official seal. Notary Public (SEAL) My commission expires: NKNNAI 31 -q l70/ z- «."� �i. 7 913/2008 DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY, RENTAL AND TRANSFER OF AN EMPLOYEE HOUSING UNIT THIS DEED RESTRICTION AGREEMENT ( "Deed Restriction ") is entered into this 9S day of July, 2008 by and between the TOWN OF VAIL, COLORADO and CRAIG BIRK, KRISTINA WARNER and THOMAS PANYAKO (collectively, the "Owner ") . WHEREAS, the Town of Vail, Colorado (the "Town ") has adopted employee housing ordinances, whereby Employee Housing Units ( "EHUs ") must be built or otherwise acquired to mitigate the employee housing impacts produced by new residential and commercial development. NOW, THEREFORE, for value received, the parties to this Deed Restriction do hereby agree to, declare and impose the following covenants and restrictions on the property herein specified: 1. Property The following real property (the "Property ") is an EHU and is hereby burdened with the covenants and restrictions specified in this Deed Restriction: Physical Address: 2456 Chamonix Lane Unit B3 Vail, Colorado 81657 Legal Description: CONDO: CHAMONIX CHALETS, UNIT B3 DESC: BLDG B 8200721069 WD 08 -02 -07 The Employee Housing Unit (EHU), containing 960 square feet, is hereby restricted as a Type IV EHU, which must comply with all the provisions of Chapter 13, Title 12 of the Town Code of Vail as amended. The Town shall record this Deed Restriction against the Property at the Owner's expense. 2. Definitions The following definitions shall apply to this Deed Restriction: a. Domestic Partner means two unmarried people, at least eighteen (18) years of age, who have lived together continuously for at least one (1) year and who are jointly responsible for basic living expenses incurred during their domestic partnership, provided that domestic partners may not be persons related to each other by blood or adoption such that their marriage would be barred in the State of Colorado. An individual shall be considered a domestic partner of an Owner upon presentation of a sworn affidavit to the Town. b. Employee means a person who works an average of thirty (30) hours per week or more on a year round basis at a business located in Eagle County. 7128120M • T C K 0 00%; C. Employee Housing Unit (EHU) means a dwelling unit which shall not be leased or rented for any period less than thirty (30) consecutive days, and shall be occupied by at least one person who is an employee. d. Non - Qualified Owner means any person who does not meet the definition of Employee, as it is defined in this Deed Restriction, and who is unable or unwilling to rent the Property to an Employee. e. Owner means either a Qualified Owner or a Non - Qualified Owner, as the context requires. f. Person means a natural person and excludes any type of entity. g. Qualified Owner means either an Employee who is qualified to own an ownership interest in the Property, or a person or entity that is not an Employee, but who is nevertheless qualified to own an ownership interest in the Property because the Property will be rented to an Employee pursuant to the terms of this Deed Restriction. h. Transfer means any sale, assignment or transfer, voluntary or involuntary, of any interest in the Property, including but not limited to, a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest, and an interest evidenced by a land contract by which possession of the Property is transferred and Owner retains title, but not an encumbrance. 3. Occupancy Restrictions The Property shall be continuously occupied by an Employee or a Qualified Owner, and shall not remain vacant for a period in excess of ninety (90) consecutive days. 4. Lease Restrictions If the Property is leased to an Employee, the following requirements shall apply: a. The Property shall not be leased for a period of less than thirty (30) consecutive days; b. The Property shall not be subdivided or divided into any form of timeshare unit or fractional fee club unit; and C. The Type Il EHU may not be sold, transferred, or conveyed separately from the development with which it is associated. 5. Transfer a. Every Transfer shall be subject to this Deed Restriction except the following: i. A Transfer to an existing spouse or Domestic Partner if such person is a Qualified Owner; 2 7/78/2008 ii. A Transfer by an Owner to a spouse or Domestic Partner if such person becomes the co -owner of the Property and is a Qualified Owner; iii. A Transfer between spouses as part of a marriage dissolution proceeding; or iv. A Transfer to an existing spouse or Domestic Partner of the Owner by devise or inheritance following the death of the Owner. b. If a Transfer occurs by devise or inheritance due to death of the Owner, the personal representative of the Owner's estate or the person inheriting the Property shall provide written notice to the Town within thirty (30) days of the date of death, and the following procedures shall apply: i. If the person inheriting the Property (the "Inheriting Owner ") is a Qualified Owner, he or she shall provide the Town with documentation proving his or her status as such, and the Town may determine if the Inheriting Owner is in fact a Qualified Owner. If the Inheriting Owner fails to provide the required documentation, he or she shall be deemed a Non - Qualified Owner. If the Inheriting Owner is a Qualified Owner, he or she shall succeed to the Owner's interest and obligations under this Deed Restriction. ii. If the Inheriting Owner is a Non - Qualified Owner, he or she shall be required to transfer the Property to a Qualified Owner. iii. If the Inheriting Owner chooses to Transfer the Property, he or she shall provide the Town with a Notice of Intent to Transfer within sixty (60) days of the date of the Owner's death. iv. Failure of an Inheriting Owner to follow the procedures in this Section shall constitute a default under this Deed Restriction and the Town may exercise any of the remedies set forth in this Deed Restriction. C. Any Transfer without satisfaction of the conditions of this Deed Restriction is prohibited. 6. Notice of Intent to Transfer If the Owner intends to Transfer the Property, the Owner shall promptly give the Town written notice of such intent ( "Notice of Intent to Transfer "), which shall include following: a. The address of the Property and the name of the Owner; b. The date on which the Owner intends to Transfer the Property; C. Evidence to establish that the purchaser is a Qualified Owner, including the name of the purchaser's employer, and the address of the purchaser's place of employment; and �W 3 712812008 d. If applicable, the name and employer of any Employee who leases the Property and a copy of the lease agreement between the Employee and the Owner. 7. Annual Verification No later than February I' of each year, the Owner shall submit a sworn affidavit to the Town including the following information: a. Evidence to establish that the Property has been occupied throughout the year by a Qualified Owner or an Employee; b. The rental rate (if applicable); C. The Employee's employer (if applicable); and d. Evidence to demonstrate that at least one occupant of the Property is a Qualified Owner or an Employee. 8. Notice and Cure If the Town discovers a violation of this Deed Restriction, the Town shall notify the Owner of the violation and allow the Owner fifteen (15) days to cure. The notice shall state that the Owner may request a hearing before the Town Council within fifteen (15) days 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 Deed Restriction. If a hearing is held, the Town Council's decision shall be final. 9. Remedies There is hereby reserved to the parties hereto any and all remedies provided by law for violation of this Deed Restriction or any of its terms. a. If the Property is conveyed without compliance with this Deed Restriction, such conveyance shall be wholly null and void and shall confer no title whatsoever upon the purported buyer. Each and every conveyance of the Property, for all purposes, shall be deemed to include and incorporate by this reference the covenants contained in this Deed Restriction, even if they fail to reference this Deed Restriction. b. If the Owner fails to cure a violation of this Deed Restriction, the Town may resort to any and all available legal action, including, but not limited to, specific performance of this Deed Restriction or a mandatory injunction requiring the Transfer of the Property by the Owner, with the costs of such Transfer shall be paid out of the proceeds of the sale with the balance being paid to the Owner. C. If such request is made by the Town, the Owner irrevocably authorizes the holder of any mortgage or deed of trust against the Property to disclose to the Town if the Owner is delinquent in any payments due to any such mortgage or trust deed holder and the duration and amount of such delinquency at the time such inquiry is made by Town. 10. Foreclosure In the event of a foreclosure, acceptance of a deed in lieu of foreclosure, or assignment to the United States Secretary of Housing and Urban Development, this Deed Restriction shall remain in full force and effect. 4 7/1812W8 11. General Provisions a. Notices Any notice, consent or approval required by this Deed Restriction shall be given by either: mailing by certified mail, return receipt requested, properly addressed and with postage fully prepaid, to the address provided herein; or hand - delivery to the address provided herein. Notices shall be considered delivered on the date of delivery if hand - delivered or if both hand - delivered and mailed; or three days after the postmark, if mailed only. Notices shall be sent to the parties at the following addresses unless otherwise notified in writing: To the Owner: Craig Birk, Kristina Warner & Thomas Panyako 2308 Garmisch Drive Unit D Vail, Colorado 81657 To the Town: Town Attorney Town of Vail 75 South Frontage Road Vail, Colorado 81657 And Housing Coordinator Town of Vail 75 South Frontage Road Vail, Colorado 81657 i b. Severability Whenever possible, each provision of this Deed Restriction shall be interpreted so as to be valid under applicable law, but if any provision of this Deed Restriction is declared invalid under applicable law, such provision shall be ineffective only to the extent of such invalidity or prohibition without invalidating the remaining provisions of this Deed Restriction. C. Governing Law and Venue This Deed Restriction shall be governed and construed in accordance with the laws of the State of Colorado, and venue for any legal action arising from this Deed Restriction shall be in Eagle County, Colorado. d. Successors The provisions and covenants contained in this Deed Restriction shall inure to and be binding upon the heirs, successors and assigns of the parties. This Deed Restriction shall be a burden upon and run with the Property for the benefit of the beneficiaries, their successors and assigns, who may enforce the covenants and compel compliance therewith through the initiation of judicial proceedings for, but not limited to, specific performance, injunctive relief, reversion, eviction, and damages. e. Modification This Deed Restriction may only be modified upon written agreement of the parties.- 7/2811008 £ No Waiver No claim of waiver, consent or acquiescence with respect to any provision of this Deed Restriction shall be valid against any party hereto except on the basis of a written instrument executed by the parties. g. Inte ation The foregoing constitutes the entire agreement between the parties regarding the Deed Restriction and no additional or different oral representation, promise or agreement shall be binding on any of the parties hereto. h. Third-party beneficiaries There are no intended third -party beneficiaries to this Deed Restriction. [Signature pages fi flowl 6 712812008 IN WITNESS WHEREOF, the Parties hereto have executed this Deed Restriction on the date first set forth above. [Signatures continue on the following page] VAIL, COLORADO STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was subscribed, sworn to and acknowledged before me this -day of 2008, by Craig Birk, as owner of the real property located at Vail, Colorado 81657. Witness my hand and official seal. 2f& X Notary Public � (SEAL) {MA�OyMI My commission expires: omm 3171?D►2 By: me Istins STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was subscribed, sworn to and acknowledged before me this ,� day of 2008, by Kristin Warner, as the owne of the real property located at Vail, Colorado 81657. Witness my hand and official seal. low (SEAL) Notary Public Molar► ru�Na Mbl- My commission expires: 317/70) Z STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) al Coloiotb Th as nyak The foregoing instrument was subscribed, sworn to and acknowledged before me this'�"y of 2008, by Thomas Panyako, as the owner of the real property located at Vail, Colorado 81657. i Witness my hand and official seal. (SEAL) otary Public My commission expires: LMA MOVIAL I 3]7 lZv42 SkM� dd Co101Odo 8 7/18/1008 August 15, 2007 VIA EMAIL AND HAND DELIVERY Mr. George Ruther, AICP Director of Community Development Town of Vail 75 South Frontage Road Vail, Colorado 81657 Re: Employee Housing for the Town of Vail (the " Town ") Dear George: As you are aware, Solaris Property Owner, LLC, and its affiliates (collectively, " SPO ") have recorded a number of Town approved deed restrictions for the occupancy, rental and transfer of employee housing units in the Town (the " Deed Restrictions "). The purpose of this letter is to: (a) confirm the Town's acceptance of the Deed Restrictions; (b) confirm that such the Deed Restrictions comply with the Town Zoning Regulations; and (c) to identify the employee- housing " Credit " or " Credits " associated with each Deed Restriction. SPO has recorded Deed Restrictions on the nine (9) properties outlined below (collectively, the " Units "): NO. ADDRESS UNIT BEDROOMS SQ. FT. BED CREDIT 1 2650 Kinnikinnick F -5 3 1,604 4 2 2753 Kinnikinnick B -6 3 1,604 4 3 2510 Kinnikinnick L -3 3 1,628 4 4 1 2500 Kinnikinnick K -1 1 3 1,628 4 5 2550 Kinnikinnick J -4 3 1,628 4 6 2111 North Frontage Road A -3 3 1,330 4 7 2111 North Frontage Road A -15 3 1,330 4 8 1524 Bu ehr Creek Road A -26 3 1,338 4 9 2456 Chamonix B -6 2 960 3 TOTAL CREDITS 13,050 35 Prior to the date of this letter, SPO assigned the three (3) highlighted Deed Restrictions to the Willows project (the " Willows Restrictions "), but only to the extent necessary to satisfy the provisions of Ordinance No. 30, Series of 2006 (the " Willows Ordinance "). The Willows Ordinance only required the Willows to provide housing for eleven (11) employees, and the Willows Restrictions provide housing for twelve (12) employees. Under the terms of SPO's agreement with the Willows and the Town, SPO shall have the benefit of the single remaining Credit. After accounting for the Willows Restrictions, SPO's housing Credits are as follows: NO. ADDRESS UNIT BEDROOMS SQ. FT. BED 1 2650 Kinnikinnick F -5 3 1,604 4 2 2753 Kinnikinnick B -6 3 1,604 4 3 2510 Kinnikinnick L -3 3 1,628 4 4 2500 Kinnikinnick K -1 3 1,628 4 5 2550 Kinnikinnick J -4 3 1,628 4 6 2456 Chamonix B -6 I 2 960 3 7 Willows Credit - - - 1 TOTAL CREDITS 9,052 24 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 1 Phone 970.479.7566 1 Fax 970.479.6666 1 solarisveil.com In summary, SPO currently possesses Credits sufficient to cover housing for twenty -four (24) employees. If SPO elects to apply the Credits against the twenty -two (22) bed requirement established in Town 1J Ordinance No. 5, Series of 2006, as amended (the " Solaris Ordinance the Town will accept such Credits in full satisfaction of SPO's employee housing obligations under the Solaris Ordinance (and SPO will have two (2) surplus Credits for future use). Alternatively, if SPO elects to apply the Credits to a project with a requirement based on square footage, SPO's Credits will count for 9,052 square feet of employee housing. SPO may redeem the Credits in satisfaction of housing requirements calculated according to either of the methodologies described above or any combination thereof. For purposes of this paragraph, SPO shall mean Solaris Property Owner, LLC, its successors, assigns designees from time -to -time. Finally, as you are aware, the Meadow Creek Condominium Association recently amended its Declaration to prevent condominium owners from deed restricting their units. The actions of the Association forced SPO to deed restrict its properties located in Meadow Creek prematurely in order to ensure that such Deed Restrictions would trump the Amended Declarations. Consequently, SPO would like the ability to replace the Deed Restrictions on the Meadow Creek Units, in its discretion, if SPO identifies suitable alternate employee housing opportunities prior to applying for a Certificate of Occupancy for Solaris. If SPO replaces any of the Meadow Creek Deed Restrictions as set forth above, (a) the Town shall furnish SPO with recordable releases, forever releasing and removing any such Deed Restriction so replaced, and (b) the parties shall modify this letter to reflect such new information. Very truly yours, Solaris Property Owner, LLC Reed F. General Counsel #k 'Z AGREED AND ACKNOWLEDGED THIS JbDAY OF AUGUST, 2001 By: 4=4�� — Z-L,� George Ruther, MCP Director of Community Development, Town of Vail 2211 North Frontage Rd I Suite A I Vail, Colorado 81657 ? Phone 970.479.7566 1 Fax 970.479.6666 1 solarisvail.com