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HomeMy WebLinkAbout20160630 Affordable Housing AgreementIRONBRIDGE SUBDIVISION AFFORDABLE HOUSING AGREEMENT. This AFFORDABLE HOUSING AGREEMENT (hereinafter “Agreement”) is made this ____ day of _______________, 2016, by and between the BLUE HERON DEVELOPMENT COMPANY (the “Owner”), and BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO (hereinafter “BOCC”). RECITALS WHEREAS, the Owner is the developer of the Ironbridge Phase III Subdivision (the “Subdivision”), which is the property depicted on the Final Plat of Ironbridge Subdivision Phase III, Filing 1 (“Final Plat”). WHEREAS, on December 10, 2007, the BOCC, by Resolution No. 2008–42 approved a preliminary plan for the subdivision which, among other things, created 61 single-family and open space common area parcels. WHEREAS, on September 21, 2015 the BOCC approved the Phase III, Filing 1 Final Plat for 34 Lots. WHEREAS, as a condition of approval of the Final Plat submitted to the BOCC, Owner was required to complete six (6) affordable housing units in fulfillment of the Ironbridge PUD affordable housing requirements for all of Phase III. WHEREAS, Owner has entered into an agreement for the sale of the Sanitation Parcel (TBA “Parcel A”) as shown on the Final Plat Phase III Filings 1, 2 and 3 with the Roaring Fork School District (“RFSD”). WHEREAS, the Owner and the BOCC (together the “Parties”) wish to enter into this Agreement whereby the last six (6) affordable units for the Ironbridge PUD shall be transferred to the Roaring Fork School District in fulfillment of the affordable housing obligations of the Ironbridge PUD. NOW THEREFORE, in consideration of the foregoing recitals on the mutual covenants and promises contained herein the parties agree as follows: 1. Owner shall on or before, July 1, 2017 have completed construction of six affordable housing units on the Sanitation Parcel in the Ironbridge PUD. 2. The units described in Paragraph 1 shall be owned by RFSD and shall be occupied by RFSD employees subject to the deed restriction attached hereto as Exhibit A. 3. The completion and transfer of the six units to RFSD shall fulfill all remaining affordable housing requirements of the Ironbridge PUD as approved. 4. Owner has filed an application to amend the PUD to acknowledge the inclusion of the final six (6) affordable housing units on-site and shall complete on or before March 31, 2017 a PUD Amendment acknowledging the inclusion of the six affordable units in the Ironbridge PUD. 5. The Parties acknowledge that construction of the affordable units on the Sanitation Parcel may commence once the Sanitation Parcel is transferred to RFSD. 6. In the event that RFSD does not purchase the Sanitation Parcel, Owner shall complete six (6) affordable units and offer them for sale pursuant to the Garfield County Land Use and Development Code affordable housing guidelines. 7. INDEMNITY. The Owner shall indemnify and hold the BOCC harmless and defend the BOCC from all claims which may arise as a result of any obligation of Owner, related to development of the Affordable Housing, required pursuant to this Agreement. The Owner, however, does not indemnify the BOCC for claims made asserting that the standards imposed by the BOCC are improper or the cause of the injury asserted, or from claims which may arise from the negligent acts or omissions of the BOCC or its employees. The BOCC shall notify the Owner of receipt by the BOCC of a notice of claim or a notice of intent to sue, and the BOCC shall afford the Owner the option of defending any such claim or action. Failure to notify and provide such written option to the Owner shall extinguish the BOCC’s rights under this paragraph. Nothing in this paragraph shall be construed to constitute a waiver of governmental immunity granted to the BOCC by Colorado statutes and case law. 8. BREACH OR DEFAULT OF OWNER. A “breach” or “default” by Owner under this Agreement shall be defined as Owner's failure to fulfill or perform any material obligation of Owner contained in this Agreement. In the event of a breach or default by Owner under this Agreement, the County shall deliver written notice to Owner of such default, at the address specified in paragraph 13 below, and Owner shall have sixty (60) days from and after receipt of such notice to cure such default. If such default is not of a type that can be cured within such 60-day period and Owner gives written notice to the County within such 60-day period that it is actively and diligently pursuing such cure, Owner shall have a reasonable period of time given the nature of the default following the end of such 60-day period to cure such default, provided that Owner is at all times within such additional time period actively and diligently pursuing such cure. 9. BREACH OR DEFAULT OF COUNTY. A “breach” or “default” by the County under this Agreement shall be defined as the County's failure to fulfill or perform any material obligation of the County contained in this Agreement. In the event of a breach or default by the County under this Agreement, Owner shall have the right to pursue any administrative, legal, or equitable remedy to which it may by entitled. 10. ENFORCEMENT. In addition to any rights provided by Colorado statute, it is mutually agreed by the BOCC and the Owner, that the BOCC, without making an election of remedies, shall have the authority to bring an action in the Garfield County District Court to compel enforcement of this Agreement. Nothing in this Agreement, however, shall be interpreted to require the BOCC to bring an action for enforcement or to withhold permits or certificates nor shall this paragraph or any other provision of this Agreement be interpreted to permit the purchaser of a lot to file an action against the BOCC. 11. NOTICE BY RECORDATION. This Agreement shall be recorded in the Office of the Garfield County Clerk and Recorder and shall be a covenant running with title to the Sanitation Parcel. Such recording shall constitute notice to prospective purchasers and other interested persons as to the terms and provisions of this Agreement. 12. SUCCESSORS AND ASSIGNS. The obligations and rights contained herein shall be binding upon and inure to the benefit of the successors and assigns of the Owner and the BOCC. 13. CONTRACT ADMINISTRATION AND NOTICE PROVISIONS. The representatives of the Owner and the BOCC, identified below, are authorized as contract administrators and notice recipients. Notices required or permitted by this Agreement shall be in writing and shall be effective upon the date of delivery, or attempted delivery if delivery is refused. Delivery shall be made in person, by certified return receipt requested U.S. Mail, receipted delivery service, or facsimile transmission, addressed to the authorized representatives of the BOCC and the Owner at the address or facsimile number set forth below: Owner: Blue Heron Development Company Attn: James W. Light or John Young 430 Ironbridge Drive Glenwood Springs, CO 81601 Phone: 970-384-0630 Fax: 970-384-0634 w/copy to: Karl J. Hanlon Karp Neu Hanlon, PC P.O. Box 2030 Glenwood Springs, CO 81602 Phone: 970-945-2261 Fax: 970-945-7336 BOCC: Garfield County Board of County Commissioners Attn: Community Development Director 108 Eighth Street, Suite 401 Glenwood Springs, Colorado 81601 Phone: (970) 945-8212 Fax: (970) 384-3470 14. AMENDMENT. This Agreement may be modified, but only in writing signed by the Parties hereto, as their interests then appear. Any such amendment, including, by way of example, extension of the Completion Date, substitution of the form of security, or approval of a change in the identity of the security provider/issuer, shall be considered by the BOCC at a scheduled public meeting. Before any extension of Completion Date is considered, Owner shall certify that all taxes and assessments on the real property subject to the Agreement are paid in full. Notwithstanding the foregoing, the Parties may change the identification of notice recipients and contract administrators and the contact information provided in Paragraph 13, above, in accordance with the provisions of that paragraph and without formal amendment of this Agreement and without consideration at a BOCC meeting. 15. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. 16. VENUE AND JURISDICTION. Venue and jurisdiction for any cause arising out of or related to this Agreement shall lie with the District Court of Garfield County, Colorado, and this Agreement shall be construed according to the laws of the State of Colorado. IN WITNESS WHEREOF, the Parties have signed this Agreement to be effective upon the date of ___________________. BOARD OF COUNTY COMMISSIONERS ATTEST: OF GARFIELD COUNTY, COLORADO _________________________ By: ___________________________ Clerk to the Board Chairman Date: __________________________ BLUE HERON DEVELOPMENT COMPANY, A COLORADO CORPORATION By its Manager, Blue Heron Management, LLC, a Colorado limited liability company By: ______________________________ James W. Light, its Manager STATE OF COLORADO COUNTY OF GARFIELD The foregoing instrument was acknowledged before me this ____ day of ________________, 2016, by Blue Development Company, LLC by its Manager, Blue Heron Management, LLC, by its Manager, James W. Light. Witness my hand and official seal. Notary Public