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HomeMy WebLinkAboutLegal - Agreement - 05/20/2025AGREEMENT OF RESTRICTIVE COVENANTS AFFECTING REAL PROPERTY (360 Linden Street) THIS AGREEMENT OF RESTRICTIVE COVENANTS AFFECTING REAL PROPERTY (the "Agreement"), executed this ____ day of ________, 202_ by and between ____________________, a Delaware limited liability company, whose address is c/o Realty Capital Residential, LLC, 909 Lake Carolyn Parkway, Suite 150, Irving, Texas 75039 (together with its successors or assigns, "Owner"), and THE CITY OF FORT COLLINS, a Colorado municipal corporation ("City"). The effective date of this Agreement shall be the date of its recording in the applicable public real property records and Office of Clerk and Recorder for the County of Larimer, State of Colorado ("Effective Date") and is in reference to the following: RECITALS A. Owner is the owner of that certain real property (the "Property") described in Exhibit A attached hereto and incorporated herein by this reference, on which Owner proposes to develop a mixed-use project containing ___ dwelling units (the "Project"). B. Owner has received (i) eligibility for Basic Development Review (BDR) for the Project, (ii) delayed payment of impact fees for the Project pursuant to Section 7.5-26 of the Fort Collins Municipal Code & Charter; and (iii) a fee credit to offset the cost of electric vehicle infrastructure that exceeds the requirements of the Colorado Housing and Finance Authority (collectively, the "Incentives"); C. As a condition to the receipt of the Incentives, the City requires Owner to record this Agreement restricting certain of the dwelling units in the Project as "affordable housing units for rent", as defined in Section 5.1.2 of the Fort Collins Land Use Code. NOW, THEREFORE, in consideration of the foregoing and for good and valuable consideration, receipt and sufficiency of which is acknowledged by the Parties, City and Owner hereby agree as follows: ARTICLE 1. DEFINITIONS [Discuss following description of incentives – anticipate need for Eligible Renter and Unit] ARTICLE 2. TERM; RECORDATION; BINDING EFFECT The term of this Agreement shall extend, and all requirements hereunder, shall be in effect (the "Period of Affordability"), until the date that is ______ (__) years following the issuance of a certificate of occupancy for the Project. The Owner shall cause this Agreement to be recorded in the public real property records of the Clerk and Recorder for the County of Larimer, State of Colorado, and upon its recording, this Agreement, and the terms and conditions hereof, will be servitudes which shall run with the land and shall be binding upon and inure to the benefit of the Parties hereto, and their respective successors and assigns, as provided herein. ARTICLE 3. AFFORDABILITY RESTRICTIONS The Affordability Restrictions in this Article 2 shall be implemented using the annual income calculations and other definitions and guidance of the Section 8 Housing Program found in Title 24 of the Code of Federal Regulations. Income data for tenants in all units must be submitted to the City for review annually for compliance verification. In addition, the proposed Project rents anticipated to be in effect for any year of the Period of Affordability shall be submitted to the City for final review. (a) Tenant Income Requirements. At all times during the Period of Affordability, Borrower shall cause 20% of the Project's dwelling units (anticipated to be __ units out of ___ total unit) to be occupied by persons whose household income is less than or equal to 80% of area median income. Owner shall determine annual income of the Project tenants using Section 8 Housing Program income definitions as per 24 CFR Part 813 (the "Affordability Restriction"). Owner need dedicate specific dwelling units within the Project to satisfaction of the Affordability Restriction, but may satisfy the Affordability Restriction with such dwelling units within the Project as Owner may select from time to time. (b) Notwithstanding anything contained in this Agreement to the contrary, the Owner shall have the right to make the Project units subject to more restrictive affordability restrictions than the Affordability Restriction set forth in this Article 2. ARTICLE 4. INSPECTION The Owner shall afford City upon five (5) business days' notice, reasonable access to all documents and other information in the physical possession of Owner which is reasonably requested by the City as relevant to the matters covered by this Agreement so the City can confirm compliance with the restrictions set forth herein. ARTICLE 5. DEFAULT/ENFORCEMENT (a) Default. Failure by Owner to use the Property in accordance with the terms of this Agreement or to perform any term or provision of this Agreement constitutes a default under this Agreement. (b) Enforcement. If the Owner defaults under this Agreement, the City shall give notice of the default to the Owner of the Property and any lenders of record, and allow a period of not less than sixty (60) days to cure the default or to take reasonable steps to cure the default, if a cure cannot be completed within sixty (60) days. The City reserves the right to enforce this Agreement against the Owner by any lawful means including, but not limited to, specific performance or injunction; provided, however, this Agreement does not entitle the City a lien right (equitable, other, or whatsoever) in or to the Property or any right to retake the Property. If the failure of the Owner to use the Property in accordance with terms of this Agreement or to comply with the terms of any loan shall entitle any lender of the Owner whose loan is secured by the Property to exercise any right or remedy as against the Property, the City agrees nothing herein shall estop such lender from exercising its rights and remedies against the Property, including without limitations the remedies to appoint a receiver or foreclose the Property. ARTICLE 6. EFFECT OF COVENANTS City is deemed beneficiary of the terms and provisions of this Agreement and of the restrictions and covenants running with the land for and in its own right and for the purpose of protecting the interests of the community. The covenants in favor of City shall run during the Period of Affordability without regard to whether the City has been, remains, or is currently an owner of the Property, the Project, any Units, or any interest therein. ARTICLE 7. GENERAL PROVISIONS. a. Concurrent Remedy. No right or remedy herein conferred on or reserved to City is exclusive of any other right or remedy herein or by law or equity provided or permitted; but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing by law or in equity or by statute or otherwise, and may be enforced concurrently therewith or from time to time. b. Waiver. No covenant or condition of this Agreement can be waived except by the written consent of the party to be charged, signed by the appropriate authorities of that party. Forbearance or indulgence by one party in any regard whatsoever shall not constitute a waiver of the covenant or condition to be performed by the other party. A waiver of one covenant or condition by one party does not grant or imply a waiver of any other covenant or condition to be performed by the other party. Each party shall be entitled to invoke any remedy available to it under this Agreement or by law or in equity despite said forbearance or indulgence. c. Entire Agreement and Amendments. This Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or any part of the subject matter hereof. All references herein to this Agreement shall mean and include the Exhibits hereto unless the context otherwise requires. All amendments and modifications hereto must be in writing and signed by the appropriate authorities of City and the Owner. Any lender that is a beneficiary of a deed of trust lien or mortgage encumbering the Property or a Unit is a third-party beneficiary of this Agreement. d. Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. In the event that all or any portion of this Agreement is found to be unenforceable, this Agreement or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the parties; and the parties further agree that in such event, and to the maximum extent permitted by law, they shall take all steps necessary to comply with such procedures or requirements as may be necessary in order to make valid this Agreement or that portion which is found to be unenforceable. e. Venue. If either party to this Agreement initiates any legal or equitable action to enforce the terms of this Agreement, to declare the rights of the parties under this Agreement, or which relates to this Agreement in any manner, City and the Owner agree that the proper venue for any such action is the state or federal court, as applicable, located in Larimer County, Colorado, or otherwise located in Colorado and servicing and having jurisdiction over and Property based upon its location f. Authority of Signatories to Bind Principals. The persons executing this Agreement on behalf of the respective parties represent that they have been authorized to do so and that they thereby bind the principals to the terms and conditions of this Agreement. g. Notices and Demands Between the Parties. Whenever either of the Parties is required to give any notice to under this Agreement, such Party shall deliver such notice personally or sent by a nationally recognized overnight courier or registered or certified United States mail, postage prepaid. Any notice given in the manner provided herein shall be deemed to have been given on the day it is personally delivered, on the next business day following the date given to an overnight courier or three (3) business days after the date it is deposited in the United States mail. Each Party's address for receiving notices is set forth below and each Party may change its or his address for receiving notice by delivering written notice of such change to the other Party in the manner provided herein. City: Social Sustainability Department City of Fort Collins Mailing Address: P.O. Box 580 Fort Collins, CO 80522-0580 Hand Delivery: 222 Laporte Avenue Fort Collins, CO 80521 With a copy to: City Attorney's Office City of Fort Collins Mailing Address: P.O. Box 580 Fort Collins, CO 80522-0580 Hand Delivery: 300 LaPorte Avenue Fort Collins, CO 80521 Owner: ___________________________ c/o Realty Capital Residential, LLC 909 Lake Carolyn Parkway, Suite 150 Irving, Texas 75039 With a copy to: Winstead PC Attn: Ryan Goins 300 Throckmorton Street, Suite 1700 Fort Worth, TX 76102 h. Binding Effect. All of the terms, covenants and conditions of this Agreement shall be binding upon the Owner and its successors in title to the Property during the Period of Affordability. Whenever the term "Owner" is used in this Agreement, such term shall include any successor in fee interest title to the Property and Project. Upon any transfer of title to the Property or Project by Owner, such Owner shall have no further liability hereunder for any matters initiating from and after the date of such transfer. i. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written hereinabove. [Signature pages follow.]