HomeMy WebLinkAboutAGREEMENT Mountain Wood Townhomes Subdivision Kingswood Restrictive Covenant and Agreement 2018-06-29flCEPTION #20180039425,6129/2018 11:10:50 AM,
1 of 10 $5800
Angela Myers,Clerk &Recorder,Lanrner County,CO
RESTRICTIVE COVENANT AND AGREEMENT
This RESTRICTIVE COVENANT AND AGREEMENT (“Agreement”)is entered
into by and between Michael R.and Cynthia A.Kingswood (the “Owner”)and the Town
of Estes Park (the “Town”),a Colorado Municipal Corporation,on the Effective Date
stated herein.
RECITALS
1.Section ‘11 .4.C.4 and Section 11 .4.D of the Estes Valley Development Code
(“EVDC”)provide that a property owner may receive a density bonus if one-half of the
total units on a parcel are occupied by at least one resident of each housing unit who is
employed within the boundary of the Estes Park School District R-3 (the “Estes Valley”).
2.The Owner has obtained approval of the Mountain Wood Townhomes Subdivision
Flat (the “Plat”)consisting of ten (10)lots with two (2)out lots and eight (8)lots for
Townhome dwelling units (“Dwelling Units”).
3.The Owner has also obtained approval of the Mountain Wood Townhomes
Development Plan (the “Development Plan”)approving the development of two (2)
multi-family structures,one consisting of four (4)Dwelling Units and the other consisting
of three (3)Dwelling Units.Unit one (1)is a pre-existing residential dwelling.Each
Dwelling Unit has its own subdivided Lot in the Development.
4.The Plat and the Development Plan maximizes the density bonus which requires that
50%of the units,four (4)Dwelling Units,shall be subject to a restrictive covenant
assuring occupancy of the restricted Dwelling Units for Workforce Housing.
5.This Agreement is entered into between the Parties to meet the requirements of the
EVDC that one-half of the Dwelling Units be occupied by at least one resident who is
employed within the boundary of the Estes Park School District R-3 in order to provide
Workforce Housing Units (“WHU”)for occupancy by Qualified Occupants as their
primary residences.
IN WITNESS WHEREOF,in consideration of the foregoing Recitals,and other
good and valuable consideration,the receipt and sufficiency of which is hereby
acknowledged,the Parties hereby declare that the Property shall hereafter be held,
sold,and conveyed subject to the following covenants,restrictions,and conditions,all of
which shall be covenants running with the land,and which are for the purpose of
ensuring that the Property remains available for purchase and occupation by persons
working in the Estes Valley,and protecting the value and desirability of the Property;
and which covenants,restrictions,and conditions shall be binding on all parties having
any right,title,or interest in the Property,or any part thereof,their heirs,successors,
and assigns.
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TOWN OF ESTES PARK
P0 sox 1200
ESTES PARK CO 80517
1.SUBJECT PROPERTY -DEFINITIONS
1.1-Property.The Owner hereby declares and covenants that the Property
described in Exhibit A is made subject to the terms of this Agreement.
1.2-Owner.The Owner is the owner of the Property including any subsequent
transferee,assignee,and/or successor in title to the Property or any portion thereof.
1.3-Restricted Lots.Restricted Lots mean Lots 5,6,7 &8 of the Plat which are
required to be occupied by Qualified Households as defined herein.
1.4-Workforce Housing Unit.Workforce Housing Unit (WHU)means the
dwelling unit located on a Restricted Lot.
2.PURPOSE
2.1-The purpose of this Agreement is to restrict ownership,occupancy and sale
of each WHU in such a fashion as to provide,on a permanent basis,affordably priced
Workforce Housing to be occupied by Qualified Households,and to help establish and
preserve a supply of affordably priced Workforce Housing to help meet the needs of the
locally employed residents of the Estes Valley.
3.COVENANT TO RESTRICT USE OF LOTS
3.1-Occupancy and Use Restrictions.
3.1.1-Qualified Household Definition.A “Qualified Household”shall mean
a family unit related by blood,marriage or adoption,or four (4)or fewer
unrelated individuals living together in a WHU with common access to and
common use of all living and eating areas and all facilities for the
preparation and serving of food within said WHU.One adult (at least
eighteen years old)occupant of a Qualified Household shall be employed
for an average of at least thirty hours per week on an annual basis within
the boundaries of the Estes Park School District R-3 (“Qualified
Occupant).The Qualified Occupant shall occupy the WHU as his/her
principal residence.A person over 65 years of age shall remain a
Qualified Occupant regardless of his or her working status,so long as he
or she has occupied the WHU for a time period of not less than seven (7)
consecutive years prior to becoming 65 years of age.A Qualified
Occupant who becomes disabled after commencing occupancy of a WHU
such that he or she cannot work the required number of hours each week
required by this Agreement shall remain a Qualified Occupant;provided
that such person is permitted to occupy the WHU only for a maximum
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period of one (1)year following the commencement of said person’s
disability,unless a longer period of occupancy is authorized in writing by
the Town.
3.1.2-Each WHU in the Development shall be occupied by a Qualified
Household as defined herein in Section 3.1.1.
3.1.3—Each WHU,if rented,shall be rented pursuant to a written rental
agreement for a minimum term of at least one (1)year.The rental
agreement shall contain provisions requiring that the WHU be occupied at
all times by a Qualified Household including at a minimum,a provision
which terminates the occupancy of the WHU within ninety (90)days of the
WHU not being occupied by a Qualified Household.
3.2-Covenants Appurtenant.The Owner declares and covenants on behalf of
itself and its successors and assigns that this Agreement,and all accompanying terms
and enforcement rights,are appurtenant to and run with the Property and every Lot of
the Development.
3.3-Term.The Occupancy and Use Restrictions contained in this Agreement,
including all related rights,restrictions,covenants and agreements,shall expire fifty (50)
years from the date this Agreement is recorded in the real property records of Larimer
County,State of Colorado.
3.4-Condition to Building Permits.The Owner is required to develop the four (4)
Restricted Lots (Lots 5,6,7 &8)with a total of four (4)WHUs.In order to assure that at
least fifty percent (50%)of the Lots in the development are occupied by a Qualified
Household,the Owner may only obtain building permits for any or all of the non
restricted Lots which will maintain the requirement that at least fifty (50%)of the Lots on
the Property are constructed and available for occupancy as WHUs.The Town shall
withhold building permits for any development on the non-restricted Lots which at any
time would allow the Property to contain less WHUs than other Dwelling Units in order
to comply with the relevant terms of the EVDC.
4.OWNERSHIP RESTRICTIONS
4.1-Ownership and Occupancy Obligation
4.1.1-In the event that a WHU is occupied without compliance with this
Agreement,the Town shall have the remedies set forth herein,including,
but not limited to,the rights under Section 5.
4.1.2-Any Owner who does not meet the definitions of a Qualified
Occupant shall rent the WHU to a natural person(s)that does meet the
definitions of a Qualified Occupant,and shall not occupy or use such
WHU for such Owner’s own use.
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4.2-Sale,Resale and Lease
4.2.1-In the event that a WHU is transferred,leased,or occupied without
compliance with this Agreement,the Town shall have the remedies set
forth herein,including,but not limited to,the rights set forth in Section 5.
Except as otherwise provided herein,each and every transfer,lease,or
occupation of a WHU,for any and all purposes,shall be deemed to
include and incorporate the terms and conditions of this Agreement.
5.COMPLIANCE AND ENFORCEMENT
5.1-Verification &Certification Requirement.
5.1.1-No WHU may be occupied until the Owner certifies to the Town that
the prospective occupants constitute a Qualified Household and otherwise
meet all relevant requirements associated therewith.
5.1.2-The Owner shall be responsible for verifying that Qualified
Households occupy all of the WHUs.The Owner shall certify to the Town
on or before January 31st of each calendar year that all WHUs are
occupied by Qualified Households.
5.1.3-If applicable and in the event during any calendar year,the
Qualified Occupant of any WHU does not meet the employment
qualifications,the Owner shall notify and certify to the Town the name of
the new Qualified Occupant within sixty (60)days.
5.1.4-All certifications required by this Section shall be in the form and
contain all documentation required by the Town as evidence that at least
one (1)occupant of each WHU is a Qualified Occupant.
5.2-Delegation of Owner Verification.The Owner,and any successors thereto,
may use the services of a property manager or other agent (i.e.,an accountant,
attorney,etc.)to assist with meeting its verification obligations hereunder.Should an
owner’s association be formed to manage common elements or shared resources within
the Development (the “Association”),the Association may be used by the Owner to
meet its verification obligations hereunder.
5.3-Transfer of Town Administration.The Town may contract with or use a third
party to assist or handle the Town’s role in the verification and administration of the
occupancy of the WHUs and the terms of this Agreement.
5.4-Enforcement.The Town and each Owner hereby grants and assigns to the
Town the right to review and enforce compliance with this Agreement.Compliance may
be enforced by the Town by any lawful means,including without limitation,seeking any
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equitable relief including,without limitation,specific performance and other equitable
relief as set forth in Section 5.5,as well as a suit for damages.
5.5-Injunctive and other Equitable Relief.Each Owner agrees that in the event
of his or her default under or non-compliance with the terms of this Agreement,the
Town shall have the right to seek such equitable relief as it may deem necessary or
proper,including,without limitation,the right to:(a)seek specific performance of this
Agreement;(b)obtain a judgment from any court of competent jurisdiction granting a
temporary restraining order,preliminary injunction and/or permanent injunction;and (c)
set aside or rescind any sale or lease of a WHU made in violation of this Agreement.
Any equitable relief provided for in this Section 5.5 may be sought singly or in
combination with such legal remedies as the Town may be entitled to,either pursuant to
this Agreement,under the laws of the State of Colorado or otherwise.
6.EVENTS OF DEFAULT
6.1-Right to Inspect.In the event the Owner and/or the Town has reasonable
cause to believe an occupant or household of a WHU is violating the provisions of this
Agreement,the Owner and/or the Town,by its authorized representatives,may inspect
the applicable WHU between the hours of 8:00 a.m.and 5:00 p.m.Monday through
Friday,after providing the occupants thereof with no less than 24 hours advance
written,including electronic notice.
6.2-Right to Cure.If the Owner and/or the Town discovers a breach of this
Agreement,the Owner and/or the Town shall send a written or electronic notice of
violation to the occupant(s)detailing the nature of the violation and allowing the
occupant(s)thirty (30)days to correct the violation.If the occupant(s)does not cure the
violation within the thirty (30)days,the provisions of Section 5 shall be available for
enforcement of this Agreement.
6.3-Remedies;Attorney Fees.There are hereby reserved to the Town any and
all remedies provided by law for breach of this Agreement.In the event the Town
commences litigation with respect to any or all provisions of this Agreement,the Town
shall be awarded its damages and costs,including reasonable attorney’s fees and court
costs.
6.4-Conveyance of Restricted Lots.In the event a Restricted Lot is sold and/or
conveyed without compliance with the terms of this Agreement,such sale and/or
conveyance shall be wholly null and void and shall confer no title whatsoever upon the
purported transferee.Each and every conveyance of a Restricted Lot,for all purposes,
shall be deemed to include and incorporate by this reference this Agreement.
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7.CONVEYANCE OF RESTRICTED LOT;LEASE OF WHU
7.1-Sale of Restricted Lot.If the Owner transfers title to a Restricted Lot during
the Term of this Agreement,said transaction shall be null and void unless the
buyer/grantee in said transaction specifically acknowledges in a written instrument (e.g.,
an affidavit)that buyer/grantee is taking title to said Restricted Lot subject to the terms
of this Agreement.Said instrument shall be recorded contemporaneously with the
closing/completion of said transaction.
7.2-Tenancy of WHU.Rental agreements made for all WHUs shall be in writing
and have a minimum term of one (1)year.No WHU shall be occupied or used as a
short term or vacation rental as defined in the EVDC and the Town’s Municipal Code.
8.GENERAL PROVISIONS
8.1-Notice.Any notice,consent,approval,or request that is required to be given
hereunder shall be given by mailing the same,certified mail,return receipt requested,
properly addressed and with postage fully prepaid as follows:
OWNER:Mike &Cynthia Kingswood
152 Stanley Cir.Dr,
Estes Park,CC 80517
THE TOWN:Town of Estes Park
Attn:Community Development Director
P 0 Box 1200
Estes Park,CC 80517
8.2-Severability.Whenever possible,each provision of this Agreement and any
other related document shall be interpreted in such manner as to be valid under
applicable law.If any provision of this Agreement shall be invalid or prohibited under
said applicable law,such provisions shall be ineffective to the extent of such invalidity or
prohibition without invalidating the remaining provisions of such document.
8.3-Governing Law and Jurisdiction.These Restrictions and each and every
related document are to be governed and construed in accordance with the laws of the
State of Colorado.Any legal action to enforce the terms of this Agreement shall be
brought in the appropriate court of Larimer County,State of Colorado.
8.4-Binding Agreement.The provisions and covenants contained herein shall
inure to and be binding upon the personal representatives,heirs,successors,and
assigns of the Parties.
8.5-Amendment.Any modifications of this Agreement shall be effective only
when made by a duly executed instrument by the Owner and the Town.
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8.6 -Recordation.Upon execution,this Agreement shall be recorded in the real
property records of Larimer County,State of Colorado.
8.7 -Entire Agreement.The Recitals and Exhibits contained in this Agreement
constitute the entire agreement between the Parties hereto with respect to the matters
set forth herein.
8.8 -Term of Agreement.This Agreement shall lapse fifty (50)years from the
date on which this Agreement is recorded in the real property records of Larimer
County,State of Colorado (“Term”).
8.9—No Third Party Beneficiaries.This Agreement is made and entered into for
the sole protection and benefit of the Town and the Owner.Except as otherwise
specifically provided for herein,no other person,persons,entity or entities,including
without limitation prospective buyers of a WHU,shall have any right of action with
respect to this Agreement or right to claim any right or benefit from the terms provided in
this Agreement or be deemed a third party beneficiary of this Agreement.
8.10—Non-Liability.The Town and its respective employees,members,officers
and agents shall not be liable to any Owner or third party by virtue of the exercise of
their rights or the performance of their obligations under this Agreement.The Town is
relying on,and does not waive or intend to waive by any provision of this Agreement,
the monetary limitations or any other rights,immunities or protections afforded by the
Governmental Immunity Act,Section 24-10-101,et seq.C.R.S.,as it may be amended,
or any other limitation,right,immunity or protection otherwise available to the Town.
8.11 -Effective Date.The Effective Date of this Agreement shall be the date on
which all Parties hereto have executed the same.
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OWNER:
By:_____
Michael R Kingswood,wner
STATE OF COLORADO
)ss.
COUNTY OF LARIMER
Subscribed and sworn to before me this 44h day of L)nCI 2OL,by Michael R.
Kingswood as Owner.
Witness ndaiciaeal.
_____
tete of Colorsdc
U 0020174043232
&on Expires 10-17-2021
OWNER:
By:________
Cynthia A.Kingswood,Owner
STATE OF COLORADO
)SB.
COUNTYOFLARIMER
Subscribed and sworn to before me this 4 day of cJ,1,-,2Qj,by Cynthia A.
Kingswood as Owner.
Witness my hand and official seal.
Notary Public
KAREN LYNNE EVIC’
Notary Public
State of Colorado
8 Notary ID #19874059482
yCornmission Expires 12-30-2021
TOWN OF ESTES PARK:
By:_____________
____
Mayor Jirsa
STATE OF COLORADO
)ss.
COUNTY OF LARIMER
Subscribed and sworn to before me this 1 day of 3 u,C,20 iS,by
Tooo ..SQ%czt as
______________________
of the Town of Estes Park.
Witness my hand and official seal.
r JACKIE WILLIAMSON I
Notary Public I
State of Colorado I
L
NotarylD#2004403219O I
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