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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 I 1 A► 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.