HomeMy WebLinkAbout2017-23 Estopple AgreementRESOLUTION NO. 23
Series of 2017
A RESOLUTION APPROVING AN ESTOPPEL AGREEMENT BETWEEN THE TOWN OF VAIL,
THE VAIL LOCAL HOUSING AUTHORITY AND LION'S RIDGE APARTMENT HOMES, LLC;
AND SETTING FORTH DETAILS IN REGARD THERETO.
WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Colorado is
a home rule municipal corporation duly organized and existing under the laws of the State of
Colorado and the Town Charter (the "Charter");
WHEREAS, the members of the Town Council of the Town (the "Council") have been duly
elected and qualified;
WHEREAS, the Town and Lion's Ridge Apartment Homes, LLC ("Lion's Ridge") are parties
to a certain ground lease dated September 10, 2014, regarding the operation of an apartment
project (the "Project") on Town property;
WHEREAS, Lion's Ridge wishes to obtain financing in connection with the Project from
Walker and Dunlop, LLC (the "Leasehold Mortgagee");
WHEREAS, as a condition of making the loan, the Leasehold Mortgagee has requested the
that the Town and the Vail Local Housing Authority execute an Estoppel Agreement (the
"Agreement").
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO THAT:
1. The Agreement is hereby approved in substantially the same form attached hererto
as Exhibit A and in a form approved by the Town Attorney, and the Town Manager
is hereby authorized to execute the Agreement on behalf of the Town.
2. This resolution shall take effect immediately upon its passage.
INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council
of the Town of Vail held this 11th day of July, 2017.
ill
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e
vhap i , V
Mayor of the Town of V. I, Colorado
Resolution No. 23, Series of 2017
ESTOPPEL AGREEMENT
This Estoppel Agreement (the "Agreement") is made as of the day of
, 2017 by and between the Town of Vail, a Colorado home rule municipality
("Landlord"), the Vail Local Housing Authority ("VLHA") and Lion's Ridge Apartment Homes,
LLC, a Colorado limited liability company ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain Ground Lease dated as of September
10, 2014 (the "Ground Lease") wherein Landlord leased the property more particularly described
in Exhibit A attached hereto and incorporated herein by this reference (the "Property") to Tenant
and Tenant leased the Property from Landlord.
B. VLHA is a member of Tenant pursuant to the Operating Agreement of Lion's Ridge
Apartment Homes, LLC, dated September 10, 2014 (as amended, the "Operating Agreement").
The purpose of VLHA's membership in Tenant is to assure the real estate property exemption of
the Project (hereinafter defined).
C. Tenant wishes to secure financing from Walker & Dunlop, LLC, a Delaware
limited liability company (together with its successors and assigns, the "Leasehold Mortgagee") in
connection with the apartment project (the "Project") located on the Property (the "Loan"). As a
condition of Leasehold Mortgagee making the Loan, Leasehold Mortgagee has requested that
Landlord, VLHA and Tenant execute this Agreement.
AGREEMENTS
In consideration of the Recitals and the mutual agreements which follow, the parties agree
as follows:
1. Capitalized terms used but not otherwise defined herein shall have the meanings
given to them in the Ground Lease.
2. Landlord shall not subject its interest in the Property to any mortgage, deed of trust
or other lien on Landlord's interest in the Property or the Ground Lease.
3. The Leasehold Mortgagee may foreclose on the Leasehold Estate without the
consent of Landlord after giving Landlord thirty (30) days prior written notice of Leasehold
Mortgagee's intent to commence a foreclosure proceeding, and the Leasehold Estate, including
the Option set forth in Section 27 of the Ground Lease, may be sold, assigned, or transferred
without Landlord's consent (i) pursuant to any foreclosure proceedings or a transfer by deed (or
other instrument of conveyance) in lieu of any such foreclosure to Leasehold Mortgagee, its
affiliate or a third person, or (ii) thereafter, by such Leasehold Mortgagee or its affiliate to a third
party. In connection with any such leasehold assignment (which must comply with Section 14.6
of the Operating Agreement), VLHA acknowledges, and agrees to abide by, the terms of Section
14.6 of the Operating Agreement, subject to all terms, conditions and requirements as contained
in Article XIV of the Operating Agreement.
4. Landlord shall give notice of any alleged non-performance on the part of Tenant to
Leasehold Mortgagee, simultaneously with the default notice delivered to Tenant; and Landlord
agrees that Leasehold Mortgagee shall have a separate, consecutive reasonable cure period of no
less than thirty (30) days (which may be reasonably extended in the same manner Tenant's thirty
(30) day cure period is to be extended under the Ground Lease) following Tenant's cure period
during which Leasehold Mortgagee may, but need not, cure any non-performance by Tenant. In
the event of any default by Tenant pursuant to Section 23.a.ii. or iii under the Ground Lease,
Leasehold Mortgagee shall have the right to assume Tenant's obligations under the Ground Lease
in accordance with this Section 4 and Section 18 of the Ground Lease.
5. Leasehold Mortgagee, simply by virtue of its lien on the Leasehold Estate or by
taking any action to cure any default by Tenant or otherwise to exercise Tenant's rights hereunder,
shall not be deemed to have assumed any of the obligations or liabilities of Tenant under the
Ground Lease or to be a mortgagee in possession, unless the Leasehold Mortgagee elects in writing
to become a mortgagee in possession. Notwithstanding the foregoing, if Leasehold Mortgagee
takes title to the Leasehold Estate, Leasehold Mortgagee shall be responsible for the performance
of Tenant's obligations under the Ground Lease.
6. In the event of any casualty or condemnation affecting the Property, Leasehold
Mortgagee shall be entitled to any insurance proceeds or condemnation awards to which Tenant is
entitled pursuant to the applicable court order.
7. The parties hereto agree that while the Loan encumbers the Property, no surrender
(voluntary or otherwise), termination or cancellation of the Ground Lease shall be effective until
after such time as Leasehold Mortgagee is afforded the opportunity to exercise its rights and
remedies pursuant to this Agreement and Section 18 of the Ground Lease.
8. The parties hereto acknowledge and agree that Leasehold Mortgage shall have the
right to exercise the Option set forth in Section 27 of the Ground Lease.
9. Within thirty (30) days of Landlord's receipt of a written request from Leasehold
Mortgagee, Landlord shall execute, acknowledge and deliver to Leasehold Mortgagee a certificate
that shall: (i) confirm that Landlord consents to the Loan; (ii) identify the terms of the Ground
Lease; (iii) identify all documents evidencing the Ground Lease; (iv) certify that there have been
no unapproved changes in the Ground Lease; (v) confirm that the Ground Lease is in full force
and effect; (vi) confirm that there are no known defaults, and no defaults pending under the terms
of the Ground Lease (and no conditions existing which but for the passage of time or the giving of
notice would result in a default under the Ground Lease); (vii) confirm the date through which rent
has been paid; and (viii) contain such other certifications as may be reasonably requested by
Leasehold Mortgagee in connection with the Ground Lease. To the extent that any such statements
cannot be made or would be untrue or false, Landlord shall only be required to state the same and
the reason such statement cannot be made.
10. All notices, consents, requests, demands and other communications hereunder shall
be given to or made upon the respective parties hereto at their respective addresses specified below
or, as to any party, at such other address as may be designated by it in a written notice to the other
party. All notices, requests, consents and demands hereunder shall be effective when personally
delivered or deposited in the United States Mail, certified or registered, postage prepaid, addressed
as follows:
Leasehold Mortgagee:
Landlord:
Walker & Dunlop, LLC
7501 Wisconsin Avenue, Suite 1200E
Bethesda, MD 20814
Town Manager
Town of Vail
75 South Frontage Road
Vail, Colorado 81657
11. The invalidity or unenforceability of any provision hereof shall not affect or impair
any other provision.
12. This Agreement may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will constitute one and the same instrument.
Either party may rely upon a facsimile or electronic copy (pdf) of an executed counterpart of this
Agreement and this Agreement shall be enforceable against the party executing such counterpart.
13. Landlord and Tenant each represents and warrants that the individual signing this
Agreement on such party's behalf is duly authorized to sign on behalf of and to bind such party
and that this Agreement is a duly authorized obligation of such party.
14. Governmental Immunity. Landlord and its officers, attorneys and employees, are
relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary
limitations or any other rights, immunities, and protections provided by the Colorado
Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to
Landlord and its officers or employees.
15. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado
Constitution, any financial obligation of Landlord not performed during the current fiscal year is
subject to annual appropriation, shall extend only to monies currently appropriated, and shall not
constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year.
16. 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.
17. No Joint Venture. Notwithstanding any provision hereof, Landlord shall never be
a joint venture in any private entity or activity which participates in this Agreement, and Landlord
shall never be liable or responsible for any debt or obligation of any participant in this Agreement.
18. Town Attorneys' Fees. Within 30 days after receipt of an invoice from the Town,
Tenant agrees to reimburse the Town for all reasonable attorneys' fees incurred in connection with
the negotiation of this Agreement.
In Witness Whereof, the parties have executed this Agreement as of the date first set
forth above.
TOWN OF VAIL COLORADO
Name/Title:
ATTEST:
Name/Title:
VAIL LOCAL HOUSING AUTHORITY
Name/Title:
State of Colorado )
: SS
County of Eagle )
The foregoing instrument was subscribed, sworn to, and acknowledged before me
on the day of , 2017, by as of the
Vail Local Housing Authority.
My commission expires on: Notary Public
[Seal]
State of
County of
)
: SS
)
TENANT:
LION'S RIDGE APARTMENT HOMES LLC,
BY GORMAN EMPLOYEE GROUP LION'S
RIDGE, LLC, Manager
BY GORMAN & COMPANY, INC.,
Manager
BY
Gary J. Gorman, President
The foregoing instrument was subscribed, sworn to, and acknowledged before me
on the day of , 2017, by Gary J. Gorman, the President of Gorman &
Company, Inc., the Manager of Gorman Employee Group Lion's Ridge, LLC, the
Manager of Lion's Ridge Apartment Homes LLC.
My commission expires on: Notary Public
[Seal]
EXHIBIT A
LEGAL DESCRIPTION
Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision, Block C,
A Resubdivision of Lots 1, 2, 3, 4, & 5, Town of Vail, County of Eagle, State of
Colorado.
RESOLUTION NO. 23
Series of 2017
A RESOLUTION APPROVING AN ESTOPPEL AGREEMENT BETWEEN THE TOWN OF VAIL,
THE VAIL LOCAL HOUSING AUTHORITY AND LION'S RIDGE APARTMENT HOMES, LLC;
AND SETTING FORTH DETAILS IN REGARD THERETO.
WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Colorado is
a home rule municipal corporation duly organized and existing under the laws of the State of
Colorado and the Town Charter (the "Charter");
WHEREAS, the members of the Town Council of the Town (the "Council") have been duly
elected and qualified;
WHEREAS, the Town and Lion's Ridge Apartment Homes, LLC ("Lion's Ridge") are parties
to a certain ground lease dated September 10, 2014, regarding the operation of an apartment
project (the "Project") on Town property;
WHEREAS, Lion's Ridge wishes to obtain financing in connection with the Project from
Walker and Dunlop, LLC (the "Leasehold Mortgagee");
WHEREAS, as a condition of making the loan, the Leasehold Mortgagee has requested the
that the Town and the Vail Local Housing Authority execute an Estoppel Agreement (the
"Agreement").
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO THAT:
1. The Agreement is hereby approved in substantially the same form attached hererto
as Exhibit A and in a form approved by the Town Attorney, and the Town Manager
is hereby authorized to execute the Agreement on behalf of the Town.
2. This resolution shall take effect immediately upon its passage.
INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council
of the Town of Vail held this 11`h day of July, 2017.
Dave Chapin,
Mayor of the Town of Vail, Colorado
ATTEST:
Patty McKenny,
Town Clerk
Resolution No. 23, Series of 2017
ESTOPPEL AGREEMENT
This Estoppel Agreement (the "Agreement") is made as of the day of
, 2017 by and between the Town of Vail, a Colorado home rule municipality
("Landlord"), the Vail Local Housing Authority ("VLHA") and Lion's Ridge Apartment Homes,
LLC, a Colorado limited liability company ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain Ground Lease dated as of September
10, 2014 (the "Ground Lease") wherein Landlord leased the property more particularly described
in Exhibit A attached hereto and incorporated herein by this reference (the "Property") to Tenant
and Tenant leased the Property from Landlord.
B. VLHA is a member of Tenant pursuant to the Operating Agreement of Lion's Ridge
Apartment Homes, LLC, dated September 10, 2014 (as amended, the "Operating Agreement").
The purpose of VLHA's membership in Tenant is to assure the real estate property exemption of
the Project (hereinafter defined).
C. Tenant wishes to secure financing from Walker & Dunlop, LLC, a Delaware
limited liability company (together with its successors and assigns, the "Leasehold Mortgagee") in
connection with the apartment project (the "Project") located on the Property (the "Loan"). As a
condition of Leasehold Mortgagee making the Loan, Leasehold Mortgagee has requested that
Landlord, VLHA and Tenant execute this Agreement.
AGREEMENTS
In consideration of the Recitals and the mutual agreements which follow, the parties agree
as follows:
1. Capitalized terms used but not otherwise defined herein shall have the meanings
given to them in the Ground Lease.
2. Landlord shall not subject its interest in the Property to any mortgage, deed of trust
or other lien on Landlord's interest in the Property or the Ground Lease.
3. The Leasehold Mortgagee may foreclose on the Leasehold Estate without the
consent of Landlord after giving Landlord thirty (30) days prior written notice of Leasehold
Mortgagee's intent to commence a foreclosure proceeding, and the Leasehold Estate, including
the Option set forth in Section 27 of the Ground Lease, may be sold, assigned, or transferred
without Landlord's consent (i) pursuant to any foreclosure proceedings or a transfer by deed (or
other instrument of conveyance) in lieu of any such foreclosure to Leasehold Mortgagee, its
affiliate or a third person, or (ii) thereafter, by such Leasehold Mortgagee or its affiliate to a third
party. In connection with any such leasehold assignment (which must comply with Section 14.6
of the Operating Agreement), VLHA acknowledges, and agrees to abide by, the terms of Section
14.6 of the Operating Agreement, subject to all terms, conditions and requirements as contained
in Article XIV of the Operating Agreement.
4. Landlord shall give notice of any alleged non-performance on the part of Tenant to
Leasehold Mortgagee, simultaneously with the default notice delivered to Tenant; and Landlord
agrees that Leasehold Mortgagee shall have a separate, consecutive reasonable cure period of no
less than thirty (30) days (which may be reasonably extended in the same manner Tenant's thirty
(30) day cure period is to be extended under the Ground Lease) following Tenant's cure period
during which Leasehold Mortgagee may, but need not, cure any non-performance by Tenant. In
the event of any default by Tenant pursuant to Section 23.a.ii. or iii under the Ground Lease,
Leasehold Mortgagee shall have the right to assume Tenant's obligations under the Ground Lease
in accordance with this Section 4 and Section 18 of the Ground Lease.
5. Leasehold Mortgagee, simply by virtue of its lien on the Leasehold Estate or by
taking any action to cure any default by Tenant or otherwise to exercise Tenant's rights hereunder,
shall not be deemed to have assumed any of the obligations or liabilities of Tenant under the
Ground Lease or to be a mortgagee in possession, unless the Leasehold Mortgagee elects in writing
to become a mortgagee in possession. Notwithstanding the foregoing, if Leasehold Mortgagee
takes title to the Leasehold Estate, Leasehold Mortgagee shall be responsible for the performance
of Tenant's obligations under the Ground Lease.
6. In the event of any casualty or condemnation affecting the Property, Leasehold
Mortgagee shall be entitled to any insurance proceeds or condemnation awards to which Tenant is
entitled pursuant to the applicable court order.
7. The parties hereto agree that while the Loan encumbers the Property, no surrender
(voluntary or otherwise), termination or cancellation of the Ground Lease shall be effective until
after such time as Leasehold Mortgagee is afforded the opportunity to exercise its rights and
remedies pursuant to this Agreement and Section 18 of the Ground Lease.
8. The parties hereto acknowledge and agree that Leasehold Mortgage shall have the
right to exercise the Option set forth in Section 27 of the Ground Lease.
9. Within thirty (30) days of Landlord's receipt of a written request from Leasehold
Mortgagee, Landlord shall execute, acknowledge and deliver to Leasehold Mortgagee a certificate
that shall: (i) confirm that Landlord consents to the Loan; (ii) identify the terms of the Ground
Lease; (iii) identify all documents evidencing the Ground Lease; (iv) certify that there have been
no unapproved changes in the Ground Lease; (v) confirm that the Ground Lease is in full force
and effect; (vi) confirm that there are no known defaults, and no defaults pending under the terms
of the Ground Lease (and no conditions existing which but for the passage of time or the giving of
notice would result in a default under the Ground Lease); (vii) confirm the date through which rent
has been paid; and (viii) contain such other certifications as may be reasonably requested by
Leasehold Mortgagee in connection with the Ground Lease. To the extent that any such statements
cannot be made or would be untrue or false, Landlord shall only be required to state the same and
the reason such statement cannot be made.
10. All notices, consents, requests, demands and other communications hereunder shall
be given to or made upon the respective parties hereto at their respective addresses specified below
or, as to any party, at such other address as may be designated by it in a written notice to the other
party. All notices, requests, consents and demands hereunder shall be effective when personally
delivered or deposited in the United States Mail, certified or registered, postage prepaid, addressed
as follows:
Leasehold Mortgagee:
Landlord:
Walker & Dunlop, LLC
7501 Wisconsin Avenue, Suite 1200E
Bethesda, MD 20814
Town Manager
Town of Vail
75 South Frontage Road
Vail, Colorado 81657
11. The invalidity or unenforceability of any provision hereof shall not affect or impair
any other provision.
12. This Agreement may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will constitute one and the same instrument.
Either party may rely upon a facsimile or electronic copy (pdf) of an executed counterpart of this
Agreement and this Agreement shall be enforceable against the party executing such counterpart.
13. Landlord and Tenant each represents and warrants that the individual signing this
Agreement on such party's behalf is duly authorized to sign on behalf of and to bind such party
and that this Agreement is a duly authorized obligation of such party.
14. Governmental Immunity. Landlord and its officers, attorneys and employees, are
relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary
limitations or any other rights, immunities, and protections provided by the Colorado
Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to
Landlord and its officers or employees.
15. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado
Constitution, any financial obligation of Landlord not performed during the current fiscal year is
subject to annual appropriation, shall extend only to monies currently appropriated, and shall not
constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year.
16. 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.
17. No Joint Venture. Notwithstanding any provision hereof, Landlord shall never be
a joint venture in any private entity or activity which participates in this Agreement, and Landlord
shall never be liable or responsible for any debt or obligation of any participant in this Agreement.
18. Town Attorneys' Fees. Within 30 days after receipt of an invoice from the Town,
Tenant agrees to reimburse the Town for all reasonable attorneys' fees incurred in connection with
the negotiation of this Agreement.
In Witness Whereof, the parties have executed this Agreement as of the date first set
forth above.
TOWN OF VAIL COLORADO
Name/Title:
ATTEST:
Name/Title:
VAIL LOCAL HOUSING AUTHORITY
Name/Title:
State of Colorado )
: SS
County of Eagle )
The foregoing instrument was subscribed, sworn to, and acknowledged before me
on the day of , 2017, by as of the
Vail Local Housing Authority.
My commission expires on: Notary Public
[Seal]
State of
County of
)
: SS
)
TENANT:
LION'S RIDGE APARTMENT HOMES LLC,
BY GORMAN EMPLOYEE GROUP LION'S
RIDGE, LLC, Manager
BY GORMAN & COMPANY, INC.,
Manager
BY
Gary J. Gorman, President
The foregoing instrument was subscribed, sworn to, and acknowledged before me
on the day of , 2017, by Gary J. Gorman, the President of Gorman &
Company, Inc., the Manager of Gorman Employee Group Lion's Ridge, LLC, the
Manager of Lion's Ridge Apartment Homes LLC.
My commission expires on: Notary Public
[Seal]
EXHIBIT A
LEGAL DESCRIPTION
Lot 2, Timber Ridge Subdivision, A Resubdivision of Lion's Ridge Subdivision, Block C,
A Resubdivision of Lots 1, 2, 3, 4, & 5, Town of Vail, County of Eagle, State of
Colorado.
ESTOPPEL AGREEMENT
This Estoppel Agreement (the "Agreement") is made as of the day of
, 2017 by and between the Town of Vail, a Colorado home rule municipality
("Landlord"), the Vail Local Housing Authority ("VLHA") and Lion's Ridge Apartment Homes,
LLC, a Colorado limited liability company ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain Ground Lease dated as of September
10, 2014 (the "Ground Lease") wherein Landlord leased the property more particularly described
in Exhibit A attached hereto and incorporated herein by this reference (the "Property") to Tenant
and Tenant leased the Property from Landlord.
B. VLHA is a member of Tenant pursuant to the Operating Agreement of Lion's Ridge
Apartment Homes, LLC, dated September 10, 2014 (as amended, the "Operating Agreement").
The purpose of VLHA's membership in Tenant is to assure the real estate property exemption of
the Project (hereinafter defined).
C. Tenant wishes to secure financing from Walker & Dunlop, LLC, a Delaware
limited liability company (together with its successors and assigns, the "Leasehold Mortgagee") in
connection with the apartment project (the "Project") located on the Property (the "Loan"). As a
condition of Leasehold Mortgagee making the Loan, Leasehold Mortgagee has requested that
Landlord, VLHA and Tenant execute this Agreement.
AGREEMENTS
In consideration of the Recitals and the mutual agreements which follow, the parties agree
as follows:
1. Capitalized terms used but not otherwise defined herein shall have the meanings
given to them in the Ground Lease.
2. Landlord shall not subject its interest in the Property to any mortgage, deed of trust
or other lien on Landlord's interest in the Property or the Ground Lease.
3. The Leasehold Mortgagee may foreclose on the Leasehold Estate without the
consent of Landlord after giving Landlord thirty (30) days prior written notice of Leasehold
Mortgagee's intent to commence a foreclosure proceeding, and the Leasehold Estate, including
the Option set forth in Section 27 of the Ground Lease, may be sold, assigned, or transferred
without Landlord's consent (i) pursuant to any foreclosure proceedings or a transfer by deed (or
other instrument of conveyance) in lieu of any such foreclosure to Leasehold Mortgagee, its
affiliate or a third person, or (ii) thereafter, by such Leasehold Mortgagee or its affiliate to a third
party. In connection with any such leasehold assignment (which must comply with Section 14.6
of the Operating Agreement), VLHA acknowledges, and agrees to abide by, the terms of Section
14.6 of the Operating Agreement, subject to all terms, conditions and requirements as contained
in Article XIV of the Operating Agreement.