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HomeMy WebLinkAboutRESOLUTION Housing Authority 3-95RESOLUTION 3-95 BE IT RESOLVED BY THE ESTES PARK HOUSING AUTHORITY: WHEREAS, by Ordinance No. 19-95, the Board of Trustees of the Town of Estes Park has proposed to transfer certain real property, the legal description of which is set forth on Exhibit "A" attached hereto and incorporated herein by reference to the Estes Park Housing Authority for the purposes of providing real property for the Lone Tree Apartment Affordable Housing Project; and WHEREAS, pursuant to the agreement of transfer of the property, the Estes Park Housing Authority hereby agrees to the note, a copy of which is attached hereto as Exhibit "B" and incorporated herein by reference; and WHEREAS, as a further condition of the transfer of the property the Estes Park Housing Authority agrees to secure the Promissory Note by the execution of a Deed of Trust upon request by the Town; and WHEREAS, the Estes Park Housing Authority has secured a loan commitment from Mercy Housing, Inc., for the purpose of providing pre -development costs associated with the development of the Lone Tree Apartment Project; and WHEREAS, a requirement of said financing is the execution of a Promissory Note and Deed of Trust, copies of which are attached hereto as Exhibit "C" and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE ESTES PARK HOUSING AUTHORITY: Section 1. The Board of Commissioners hereby consents to the execution of the Loan Commitment to Mercy Housing, Inc., for the purpose of securing financing for the pre -development costs of the Lone Tree Apartment Project. Section 2. The Board of Commissioners authorizes the appropriate officials of the Estes Park Housing Authority to execute any documents necessary to effectuate the closing of the financing of $150,000.00 for pre -development costs by the Estes Park Housing Authority from Mercy Housing, Inc., including but not limited to the Promissory Note and Deed of Trust on Exhibit "C". Section 3. The Board of Commissioners hereby consent to the execution of the Promissory Note to the Town of Estes Park as more fully set forth on Exhibit "B". The appropriate officials are hereby authorized to execute said Promissory Note. Section 4. The Board of Commissioners of the Estes Park Housing Authority agrees that it will execute a Deed of Trust securing the Promissory Note if requested by the Town of Estes Park as more fully set forth in Ordinance No. 19-95 of the Town of Estes Park. PASSED AND ADOPTED THIS 12th DAY OF SEPTEMBER, 1995. ESTES PARK HOUSING AUTHORITY Ch irman Secretary • EXHIBIT "A" , LEGAL DESCRIPTION A tract of land located in the SE1/4 of Section 30, Township 5 North, Range 72 West of the 6th P. M., Larimer County, Colorado being more particularly described as commencing at the C1/4 corner of said Section 30, as monumcnted by a Town of Estes Park brass cap and with all bearings contained herein being relative to the North line of said SE1/4 considered as bearing South 89 degrees 11 minutes 00 seconds East; thence South 89 degrees 11 minutes 00 seconds East a distance of 1,297.18 feet alone said North line to thc NE corner of the W1/2 of the SE1/4 of said Section 30; thence South 00 degrees 00 minutes 21 seconds West a distance of 640.55 feet along the East line of the W1/2 of the SE1/4 of said Section 30 to the True Point of Beginning; thence South 00 degrees 00 minutes 21 seconds West a distance of 411.31 feet along said East line to a point on the North right-of-way line of Graves Avenue; thence West a distance of 404.45.fect to thc Southeast corner of De Ville Subdivision; thence North a distance of 619.19 feet along the East line of De Ville Subdivision to the Southerly right-of-way line of Manford Avenue; thence South 62 degrees 48 minutes 00 seconds East a distance of 454.78 feet along said Southerly right-of-way line to the True Point of Beginning. County of Larimer, State of Colorado. EXHiIBIT "B" PROMISSORY NOTE $397,000.00 Estes Park, Colorado September /a , 1995 FOR VALUE RECEIVED, The ESTES PARK HOUSING AUTHORITY promises to pay to the order of the TOWN OF ESTES PARK, A COLORADO MUNICIPAL CORPORATION, the sum of THREE. HUNDRED NINETY SEVEN THOUSAND DOLLARS ($397,000.00), together with interest thereon from the date hereof at the rate of eight percent (890 per annum payable as follows: Said principal and interest shall become due and payable in full, including all accrued interest, on or before December 31, 1997. Payment shall first be credited to interest and the balance to principal. This note may be prepaid at any time without penalty. In the event any payment of principal and interest is not made in full within fifteen (15) days after the same becomes due, the total principal and interest then remaining unpaid under this note shall become due and payable in full, and the maker shall be in default hereunder. In the event of such default, unpaid principal and defaulting interest shall bear interest at the rate of eighteen percent (18%) per annum until paid. Further, in the event it becomes necessary to place this note in the hands of an attorney for collection, maker shall pay, in addition to principal and interest, a reasonable attorney's fee as allowed by law. Maker hereon waives demand, protest and notice of dishonor and all defenses on the grounds of any extension of the time of its payment that may be given by the holdr or holders. ESTES P '' HOUSING AUTHORITY Atte EXHIBIT "C" PROMISSORY NOTE $ 150,000.00 , 1995 Denver, Colorado FOR VALUE RECEIVED, the receipt of which is hereby acknowledged, the undersigned ("Maker") promises to pay to MERCY HOUSING, INC., a Nebraska not -for -profit corporation ("Holder"), at its offices at Fifth Floor, 1601 Milwaukee, Denver, Colorado 80206, or at such other place as Holder may from time to time designate in writing, the principal sum of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00), or such lesser amount as may be advanced by Holder, and to pay interest on the amount advanced of this Note from the date hereof to maturity at the annual rate of six percent (6.0%) (the "Loan Rate"), payable in lawful money of the United States of America. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The unpaid balance of principal and accrued interest for the period od commencing with the date set forth above shall be due and payable on ("Maturity Date"). Maker shall have the right to prepay all or any part of the principal outstanding on this Note. All prepayments shall be credited, first, to interest accrued to the date of prepayment and, next, to the principal outstanding on this Note. Notwithstanding any partial prepayment pursuant hereto, Maker shall pay any remaining principal and interest on this Note on the Maturity Date. In no event shall any payment of interest or any other sum payable hereunder exceed the maximum amount permitted by applicable law. If it is established that any payment exceeding lawful limits has been received, Holder will refund such excess or, at its option, credit the excess amount to the principal due hereunder, but such payments shall not affect the obligation to make the payment required herein. In the event that suit is brought hereon, or an attorney is employed or expenses are incurred to compel the payment of this Note or any portion of the indebtedness evidenced hereby, Maker agrees to pay all expenses and attorneys' fees incurred by Holder. Maker and all endorsers and all persons liable or to become liable on this Note, and each of them, hereby waive diligence, demands, presentation for payment, notice of nonpayment, protest and notice of protest, and specifically consent to and waive notice of any renewals or extensions of this Note, or any modification or release of security for this Note, whether made to or in favor of Maker or any other person or persons, and further agree that any such action by Holder shall not affect the liability of Maker or any person liable or to become liable on this Note. If any payment due under this Note, or any part thereof, or any interest thereon is not paid within ten (10) days from the date when due, or a default otherwise occurs under the terms of this Note, at the option of Holder, without notice, time being of the essence hereof, said Note shall bear interest from the date of such default until paid at the Loan Rate plus five percent (5.0%). The proceeds of this Note shall be used by Maker exclusively in connection with the predevelopment costs associated with the development of the project to be known as Lone Tree Apartments located at 1310 Manford Ave. in Estes Park, Larimer County, Colorado ("the Project"); provided further that the making of the Loan shall support the borrower's charitable purposes, to alleviate poverty and/or combat community deterioration in furtherance of its charitable programs and the exempt purposes of Borrower and Lndr described in Sections 170(c)(2)(B) and 501(c)(3) of the Internal Revenue Code, and not for personal, family or household purposes. No delay or omission by Holder in exercising any remedy, right or option under this Note shall operate as a waiver of such remedy, right or option. In any event, a waiver or any one occasion shall not be construed as a waiver or bar to any such remedy, right or option on a future occasion. The invalidity of any one or more covenants, phrases, clauses, sentences or paragraphs of this Note shall not affect the remaining portions hereof, and this Note shall be construed as if such invalid covenants, phrases, clauses, sentences or paragraphs, if any, had not been included herein. This Note, with interest, is secured by that certain Deed of Trust, Assignment of Rents and Pledge and Security Agreement of even date herewith, executed by Maker for the benefit of Holder ("Deed of Trust") covering certain real property located in the Town of Estes Park, Larimer County, Colorado, and this Note and said Deed of Trust are to be construed in all respects and enforced according to the laws of the State of Colorado. A default under the terms of the Deed of Trust or any other instrument securing this Note shall constitute a default under this Note. This Note may not be amended or modified except by a written agreement duly executed by Maker and Holder. This Note and the obligations created hereby shall bind Maker and, to the extent applicable, its successors and assigns, and the benefits hereof shall inure to Holder and its successors and assigns. Any notice to Maker under this Note shall be in writing and shall be deemed to have been given upon (i) receipt, if hand delivered, (ii) transmission, if delivered by facsimile transmission, (iii) the next business day, if delivered by express overnight delivery service or (iv) the third business day following the day of deposit of such notice in U.S. certified mail, return receipt requested to the following address (or facsimile number, as applicable): Estes Park Housing Authority P.O. Box 1200 170 MacGregor Ave. Estes Park, CO 80517 Attention: Richard Widmer Telephone: (970) 586-5331 Facsimile: (970) 586-6909 Maker has executed and delivered this Note as of the date first set forth above. ESTES PARK HOUSING AUTHORITY, a Colorado housing authority By Printed Name Title 2 EXHIBIT "C" DEED OF TRUST TO PUBLIC TRUSTEE, SECURITY AGREEMENT AND FINANCING STATEMENT (Colorado) 1. Grantor: Estes Park Housing Authority P.O. Box 1200 170 MacGregor Ave. Estes Park, CO 80517 2. Beneficiary: Mercy Housing, Inc. c/o Mercy Loan Fund 1601 Milwaukee St., Fifth Floor Denver, CO 80206 3. Trustee: The Public Trustee of Larimer County, Colorado 4. Property: The real property located in Larimer County, Colorado and described on Exhibit B attached hereto, together with all buildings, improvements, fixtures, easements, minerals, crops, landscaping features, water, ditch, reservoir, well or spring rights, groundwater rights, rents, issues and profits, condemnations awards and insurance proceeds, however evidenced, and all appurtenances appertaining to or used in connection with the real property. 5. Obligations: (a) The indebtedness evidenced and created by the Promissory Note (the "Note"), dated , 1995 from Estes Park Housing Authority, a Colorado housing authority, validly existing pursuant to C.R.S. §29-4-201 et seq., in the amount of $150,000, payable to the order of Beneficiary on or before , 1995, and all renewals, extensions, modifications, amendments and restatements thereof and substitutions therefor; and (b) all other indebtedness due under the Note, this Deed of Trust and any other document, instrument or agreement evidencing, securing or governing the loan evidenced by the Note (the Note, this Deed of Trust and all such other documents, instruments and agreements are hereinafter collectively referred to as the "Loan Documents"). 6. Grant. As security for the Obligations, Grantor hereby grants, bargains, sells, mortgages and conveys the Property to Trustee in trust with the power of sale for the use and benefit of Beneficiary. As eneficiary a security interest in all personal property and ty forthe Oor hereafter located upon tor by grantsor used in connection with the Property, including, without property fixtures now or herea limitation, the personal property, fixtures and other collateral (collectively, the "Collateral") described in Exhibit A, attached hereto and incorporated herein by this reference. This Deed of Trust constitutes a security agreement under the Uniform Commercial Code in effect in the State of Colorado (the "Code"). ect only to 7. Representations. Grantor ents notacurrentlyts the tle to the Property and the due and payable and otherCmattersshown by the public liens for real property taxes and assessments of the Property, the Collateral or any record. Grantor warrants that no financing statement covering any P attachment proceeds of the Property or the Collateral has been filed in a public office except as shown on any hereto. Grantor warrants that the person signing this Deed of Trust on behalf of Grantor has been fully and properly authorized to do so and that this Deed of Trust constitutes the valid, binding and enforceable obligation of Grantor. 8. Covenants of Grantor. Grantor covenants and agrees: (a) to pay and satisfy all the Obligations on or before the date the Obligations are due and to comply with and perform according to their terms all of the covenants and agreements contained in this Deed of Trust, the Note and any other Loan Documents; (b) to pay and satisfy when due all general and special taxes and general and special assessments and other claims or encumbrances in connection with or affecting the Property and/or the Collateral; (c) to obtain and maintain at all times policies of insurance in an amount equal to the full replacement cost of the Collateral and all improvements on the Property, insuring against all risk of loss, damage, destruction, theft or any other casualty, and such other hazard or similar insurance as Beneficiary may reasonably require, and to obtain and maintain comprehensive general liability insurance covering the Property and Grantor in the amount of at least $500,000, all of the foregoing with such policy provisions and with such companies as may be reasonably approved by Beneficiary, with Beneficiary named as a loss payee (with respect to property insurance) and as an additional insured (with respect to liability insurance) and providing that any such policy will not be cancelled without 30 days' prior written notice from the insurer to Beneficiary, and to assign and deliver original or certified copies of all policies of insurance to Beneficiary, (d) to keep the Collateral, the Property and any improvements which may at any time be on the Property in good condition and repair and not to commit or suffer any material waste; (e) not to commit or suffer destruction or removal of all or any material part of the Property and/or the Collateral without the prior written consent of Beneficiary; (f) not to assign the rents or income from the Property except to Beneficiary; (g) to comply with applicable insurance policy provisions and all laws, ordinances, rules and regulations of governmental authorities governing or applicable to the Property or its use; (h) keep the Property and the Collateral free and clear of all material liens, judgments or other encumbrances; (i) to appear in and defend any action or proceeding purporting to affect the Property and/or the Collateral; (j) that all awards and proceeds received in connection with the condemnation of or injury or damage to the Property and/or the Collateral or amounts received in lieu of such awards or proceeds shall be paid to Beneficiary and shall be applied by Beneficiary first to costs and expenses, including attorneys' fees, incurred by Beneficiary in connection with such awards or proceeds and then to the payment or, in the discretion of Beneficiary, prepayment of the Obligations with the surplus, if any, to be paid to Grantor. 9. Environmental Covenant. (a) To the best of Grantor's knowledge the use of the Property will not result in Contamination or threatened Contamination. (b) Grantor agrees to defend, indemnify and hold harmless Beneficiary for, from, and against, and to reimburse Beneficiary with respect to any and all claims, actions, costs and expenses whatsoever (including, without limitation, attomey's fees and expenses and costs reasonably incurred), known or unknown, asserted against or incurred by Beneficiary at any time by reason of or arising out of or relating to any actual or alleged violation of any existing or future environmental law or regulation thereunder or actual or threatened Contamination on or under the Property, whether or not such Contamination was in violation of any environmental statute or regulation thereunder. This indemnity shall last indefinitely and is specifically intended to survive the release of this Deed of Trust. (c) The term Contamination or Contaminated shall mean the presence of solid or hazardous waste, hazardous substances, pollutants or contaminants, petroleum, toxic or hazardous constituents, or similar materials, as such terms are defined under any federal or state or local statute, whether currently or subsequently enacted, or regulation thereunder or under common law. 10. Transfer. If Grantor shall lease, sell, contract to sell or otherwise transfer all or any part of either Obligations shall be the Property, the Collateral or both without the prior written consent of Beneficiary, all Obli S immediately due and payable at the election of the Beneficiary. Beneficiary may require the transferee to assume the Obligations as a condition to its consent to the transfer and impose any other conditions permitted by law. Grantor may transfer all or any part of either the Property, the Collateral or both, without the prior written consent of the Beneficiary to a limited partnership in which the Grantor or any affiliate of the Grantor is 2 a limited partner, provided that the limited partnership assumes the obligations as set forth in Paragraph 5 herein. 11. Events of Default. The occurrence of any of the following shall constitute an "event of default" hereunder: (a) failure to pay any of the Obligations when due; (b) failure to perform or observe any other covenant, agreement, duty or obligation contained in this Deed of Trust, the Note or any of the other Loan Documents; (c) any warranty, representation or statement of Grantor in this Deed of Trust, or otherwise made or furnished to Beneficiary by or on behalf of Grantor, proves to have been false in any material respect when made or furnished; (d) death of, dissolution of, termination of the existence of, insolvency of, business failure of, appointment of a receiver for any part of the property of, assignment for the benefit or creditors by, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor or any guarantor of the Obligations. If this Deed of Trust is given to secure the Obligations of a person other than Grantor, an additional event of default shall be the happening of any of the above events or conditions to, by or with respect to such other person. 12. Remedies Upon Default. Upon the occurrence of any event of default, Beneficiary shall have the following rights and remedies which shall be cumulative and which may be exercised with or without notice, and which may be exercised separately, independently or concurrently and more than once and in any order, and without any election of remedies to be deemed made, and without affecting the right of Beneficiary to exercise any other remedy hereunder or which Beneficiary may have in law, and without regard to other remedies then, theretofore or thereafter pursued or being pursued: (a) to declare any or all of the Obligations immediately due and payable; (b) to take immediate possession, management and control of the Property and to lease, operate, repair and maintain the same at the expense of Grantor and to perform such acts thereon or in connection therewith as Beneficiary may deem necessary or desirable; (c) to collect and receive any and all rents, issues and profits from the Property and to apply the same to the Obligations or to the repair or maintenance of the Property, or both; (d) to apply for and obtain, ex pane and without notice, the appointment of a receiver for the Property or of the rents, issues and profits thereof, or both, and to have e such receivers or appointed as a matter of right without regard to the solvency of any person or the adequacy conotiof ce of security the existence of waste with Grantor hereby specifically waiving any right to any g prior to the appointment of a receiver, and to have sums received by such receivers, after detoducting ngland paying costs and expanses d suchsreceiverships, mayrequest; (e) o foreclose this attorneys' fees of Deed of Trust through the Trustee or such manner and order as purchaserforeclosure sale;hleugh withthe courts as the any portion of the Collateral subject oiary may desire and to ethe eCode, Beneficiary Propertyhall have the remedies of s(f) respect o p a secured party under the Code, including, without clean up limitation, immediate and Grantor.lusive If foreclosure possession of the Collateral or any part thereof; (g) by the laws of the State made through the Trustee, such foreclosure shall be conducted in the manner provided of Colorado. The proceeds of any foreclosure sale shall first be applied to reimburse Beneficiary for (a) reasonable costs and expenses of foreclosure and (b) attorneys' the s' fees, and (c) the balance of the proceeds shall be paidfirst to Beneficiary to pay the Obligations, withsurplus, if any, to be paid to the owner of the Property on the date of the foreclosure sale. 13. Miscellaneous. (a) This Deed of Trust constitutes a fixture filing. (b) This Deed of Trust and each of its provisions shall be binding upon the successansdand i nsg(c)ns of Grantor and This Deed of Trustinure maybeoamended or benefit modifiedof the Trustee, the Beneficiary and his and its successor g charged with such amendment or waiver. (d) Th modified only by an instrument in writing signed by the party terms "Grantor," "Beneficiary," "Trustee," "Property," "Obligations," "Note" and "Collateral" are defined in paragraphs 1 through 6, respectively. (e) The Trustee may, upon production of the Note, duly cancelled, and payment of all fees and costs by Grantor, release this Deed of Trust without further showing as to payment of 3 the Obligations. (f) If there is more than one Grantor, all the terms and conditions of this Deed of Trust shall apply to each of them. (g) The Trustee may release parts of the Property from the lien of this Deed of Trust upon the request of Beneficiary without impairing any rights or priority Beneficiary may have in the remainder of the Property or against Grantor. (h) Failure on the Beneficiary's part to exercise its rights in the event of any one default shall not constitute a waiver of such rights in the event of any subsequent default. (i) any notice and other communications required or contemplated by this Deed of Trust shall be in writing and shall be deemed given two days after being mailed, postage prepaid to Grantor at the address given on page 1 hereof or at such other address given by notice as herein provided. (j) Where the Grantor and obligor on the Obligations are not the same, the term "Grantor" means the owner of the Property and the Collateral, in any provision dealing with the Property and/or the Collateral, the obligor in any provision dealing with the Obligations, and both where the context so requires. (k) Grantor and any other party liable for the Obligations hereby consent to venue and jurisdiction in the District Court in and for the City and County of Denver, State of Colorado, and in the United States District Court for the District of Colorado, and to service of process under Section 13-1-124(1)(A) and 13-1-125 Colorado Revised Statutes, as amended, in any action commenced in connection with this Deed of Trust or enforcement of the Obligations. (1) Time is of the essence of this Deed of Trust in all duties and Obligations to be performed by Grantor under this Deed of Trust. GRANTOR: Date: , 19.__ Estes Park Housing Authority, a Colorado housing authority STATE OF COUNTY OF On this day of personally appeared in and for said State, p Y , personally known to me or proved to me on the basis of satisfactory evidence to be the of Estes Park Housing Authority, and acknowledged to me that said housing authority executed the within instrument. Witness my hand and official seal. )ss. By: _ Name: Title: in the year 19 , before me, the undersigned, a Notary Notary Public My commission expires 4 EXHIBIT A (Attached to and forming a part of the Deed of Trust to Public Trustee, Security Agreement and Financing Statement (Colorado)) Collateral Description (a) all personal property of whatever nature now owned or hereafter acquired by the Debtor for use at the real property described on Exhibit B attached hereto and incorporated herein by this reference (the "Property"), including, without limitation: maintenance or (i) all building, maintenance, service or other equipment, all building,ll appliances; all office raw materials or supplies, all component parts, work in progress and inventory; arpp, equipment; all furnishings, all furniture; all fixtures at any time related to the Property; all machinery; and all tools; (ii) all bonding, construction, development, financing, guaranty, indemnity, maintenance, management, service, supply, warranty, and other agreements, commitments, contracts and subcontracts; all architectural, engineering and other plans and specifications, reports, studies and all agreements related thereto; all insurance policies and the proceeds thereof; and all bonds, to the extent such items are assignable by their terms or under law; (iii) all deposits, reserves, deferred payments, rebates, refunds and returns ofmon Pror property paid to or deposited with any governmental body, agency or authority or any public ivate utility, district or company, insurance companies, or any other person, and all claims, causes of action, judgments and settlements at any time arising r memcollateral � described herein or into, taking of, or any �he usess, ofany impairment or diminution in value of any of the Property Property or such collateral; (iv) all of Debtor's right, title and interest in and to all governmental or other approvals, permits, licenses, or grants of rights or privileges with respect to the Property, to the extent such items are assignable by their terms or under law; and (v) all accounts, accounts receivable, and all cash or cash investments resident in any bank, savings, or in escrow accounts maintainedwbhoutor t1l'trnitationh is esecurity deposit for or in ection and working king ith the operation or management of the Property, capital accounts; and (b) all cash and noncash proceeds or products from the sale or other disposition of the collateral described in paragraphs (a)(i) through (a)(v) above, inclusive (all of the foregoing is collectively referred to as the "Collateral"). 5 EXHIBIT B (Attached to and forming a part of the Deed of Trust to Public Trustee, Security Agreement and Financing Statement (Colorado)) Real Property A tract of land located in the SE1/4 of Section 30, Township 5 North, Range 72 West of the 6th P.M., Larimer County, Colorado being more particularly described as commencing at the C1/4 corner of said Section 30, as monumented by a Town of Estes Park brass cap and with all bearings contained herein being relative to the North line of said SE1/4 considered as bearing South 89 degrees 11 minutes 00 seconds East; thence South 89 degrees 11 minutes 00 seconds East a distance of 1,297.18 feet along said North line to the NE corner of the W1/2 of the SE1/4 of said Section 30; thence South 00 degrees 00 minutes 21 seconds West a distance of 640.55 feet along the East line of the W1/2 of the SE1/4 of said Section 30 to the True Point of Beginning; thence South 00 degrees 00 minutes 21 seconds West a distance of 411.31 feet along said East line to a point on the North right-of-way line of Graves Avenue; thence West a distance of 404.45 feet to the Southeast corner of De Ville Subdivision; thence North a distance of 619.19 feet along the East line of De Ville Subdivision to the Southerly right-of-way line of Manford Avenue; thence South 62 degrees 48 minutes 00 seconds East a distance of 454.78 feet along said Southerly. right-of-way line to the True Point of Beginning. County of Larimer, State of Colorado