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TC Packet 11-10-2020_______________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY IF YOU HAVE ANY SPECIAL ACCOMMODATION NEEDS, PLEASE, IN ADVANCE OF THE MEETING, CALL TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS. AVON TOWN COUNCIL MEETING AGENDA TUESDAY, November 10, 2020 MEETING BEGINS AT 5:20 PM (ALL START TIMES LISTED IN RED ARE APPROXIMATE) !! SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 5:00 PM (See Agenda on page 3) AVON TOWN COUNCIL PUBLIC MEETING BEGINS AT 5:20 PM 1. CALL TO ORDER AND ROLL CALL 5:20 2. APPROVAL OF AGENDA 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS 4. PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA Public comments are limited to three (3) minutes. The speaker may request an additional one (1) minute, which may be approved by a majority of Council. 5. BUSINESS ITEMS 5.1. Presentation: Proclamation Honoring Colorado Gives Day (Denise Kipp, Executive Director Red Ribbon Project) (10 minutes) 5:35 5.2. Presentation El Puente Radio (Communications Manager Elizabeth Wood and Gary Schwedt, KZYR) (20 Minutes) 5:45 5.3. Presentation of Oak Village Academy Proposal on Planning Area E (Planning Director Matt Pielsticker) (45 Minutes) 6:05 5.4. Resolution 20-25, A Resolution Approving a Deed Restriction agreement for up to nine (9) Community Housing units at 77 Metcalf Road (Planning Director Matt Pielsticker and Town Attorney Paul Wisor) (45 Minutes) 6:50 6. MINUTES 6.1. Approval of October 27, 2020 Council Meeting Minutes (Town Clerk Brenda Torres) (5 Minutes) 7:35 7. WRITTEN REPORTS 7.1. Town Manager Report (Town Manager Eric Heil) 7.2. Village (at Avon) Transit (Planning Director Matt Pielsticker and Mobility Director Eva Wilson) 7.3. Highway 6 Pedestrian Crossing Update (Mobility Director Eva Wilson) 7.4. Upper Eagle Regional Water Authority Oct 22, 2020 Meeting Summary (Mayor Smith Hymes) 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES (15 Minutes) 7:40 9. ADJOURN 7:55 Public Comments: Council agendas shall include a general item labeled “Public Comment” near the beginning of all Council meetings. Members of the public who wish to provide comments to Council greater than three minutes are encouraged to schedule time in advance on the agenda and to provide written comments and other appropriate materials to the Council in advance of the Council meeting. The Mayor shall permit public comments for any action item or work session item and may permit public comment for any other agenda item, and may limit such public comment to three minutes per individual, which limitation may be waived or increased by a majority of the quorum present. Article VI. Public Comments, Avon Town Council Simplified Rules of Order, Adopted by Resolution No. 17-05. _______________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY IF YOU HAVE ANY SPECIAL ACCOMMODATION NEEDS, PLEASE, IN ADVANCE OF THE MEETING, CALL TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS. Future Agenda Items November 17 Public Hearing: Resolution adopting Amendments to 2020 Budget Public Hearing: Proposed 2021 Budget December 8 Resolution 20-XX Community Development Fee Schedule Updates Public Hearing: Resolution Adopting 2021 Budget Swearing In New Council Members AVON LIQUOR LICENSING AUTHORITY MEETING AGENDA TUESDAY, NOVEMBER 10, 2020 MEETING BEGINS AT 5:00 PM (ALL START TIMES LISTED IN RED ARE APPROXIMATE) !! SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 1.CALL TO ORDER AND ROLL CALL 2.APPROVAL OF AGENDA 3.PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA [AN INITIAL THREE (3) MINUTE LIMIT ALLOWED TO EACH PERSON WISHING TO SPEAK . SPEAKER MAY REQUEST MORE TIME AT THE END OF THE THREE (3) MINUTES, WHICH MAY BE APPROVED BY A MAJORITY OF THE COUNCIL .] 4.PUBLIC HEARING FOR CHANGE OF MANAGER AND RENEWAL 4.1 APPLICANT: WVO LICENSING LLC d/b/a WYNDHAM RESORT AT AVON LOCATION: 75 BENCHMARK ROAD TYPE: RESORT COMPLEX (CITY) NEW MANAGER: PETE REYES 5.APPROVAL OF THE MINUTES FROM APRIL 28, 2020 MEETING 6.WRITTEN REPORT 6.1. REPORT ON RECENT ADMINISTRATIVE APPROVALS (LIQUOR LICENSING AUTHORITY SECRETARY BRENDA TORRES) 7.ADJOURNMENT 970-748-4001 btorres@avon.org TO: Liquor Licensing Authority FROM: Brenda Torres, Liquor Licensing Authority Secretary RE: Change of Manager and Renewal Liquor License Application DATE: October 29, 2020 SUMMARY: Town Council acting as the Local Liquor Licensing Authority is asked to consider the Report of Changes Application for Change of Manager and the Liquor License Renewal Application, including the new manager, for WVO Licensing LLC d/b/a Wyndham Resort at Avon. BACKGROUND: The Permit Application & Report of Changes Form is used when “manager” changes occur; the applicant completed a Report of Change form section 8. Once approved by the local authority, the application is forwarded to the Colorado Liquor Enforcement Division for its approv al. Pete Reyes, new manager, has been invited to virtually attend the Liquor Board meeting to answer any questions. The Municipal Code Section 5.08.150 (c), requires background checks on all managers : When the licensee desires to change the manager of his or her establishment, or, in the case of multiple managers, to add another manager, the prospective manager must present himself or herself to the Town Police Chief for the taking of fingerprints and the necessary background information, as well as the completion of forms required by the Town Clerk or Police Chief. Additionally, a copy of the written agreement under which the manager proposes to operate must be filed with the Town Clerk and the State Liquor Enforcement Division. The Town Clerk may approve a change in manager(s) if there is no criminal activity indicated on the criminal background check. The Town Clerk may refer any manager modification application to the Local Liquor Licensing Authority in the Town Clerk's sole discretion. Administrative approval of modification of manager applications shall be reported to the Avon Town Council. A background investigation has been completed by the Avon Police Department and the report indicates no concerns. The Colorado Bureau of Investigation report also indicates no concerns. The Federal Bureau of Investigation report shows an incident on 2011. Background check reports have been provided to the Liquor Licensing Authority Board. PROPOSED MOTION: I move to approve (or deny stating the reasons for denial) the Report of Changes Application for Change of Manager and the Liquor License Renewal Application, including the new manager, for WVO Licensing LLC d/b/a Wyndham Resort at Avon. Thank you, Brenda AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES TUESDAY, APRIL 28, 2020 SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 AND TOWN HALL CLOSURE 1. CALL TO ORDER AND ROLL CALL The meeting was hosted in a virtual format, using Zoom.us. Chairwoman Smith Hymes called the meeting to order at 5:00 p.m. A roll call was taken and Board members present were Amy Phillips, Scott Prince, Jennie Fancher, Chico Thuon, Tamra Underwood and Jake Wolf. Also present were Town Manager Eric Heil, Town Attorney Paul Wisor, Police Chief Greg Daly, Executive Assistant to the Town Manager Ineke de Jong and Secretary Brenda Torres. 2. APPROVAL OF AGENDA Video Start Time: 00:00:45 Part One Board member Underwood moved to approve the agenda as presented. Board member Fancher seconded the motion and the motion passed unanimously. 3. PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA Video Start Time: 00:01:26 Part One Chairwoman Smith Hymes explained to the public how to participate via video/audio or via phone or via email for public comments. No public comments were made. 4. PUBLIC HEARING FOR NEW OPTIONAL PREMISES LIQUOR LICENSE Video Start Time: 00:02:28 Part One 4.1. APPLICANT NAME: TOWN OF AVON D/B/A TOWN OF AVON LOCATION: 1 LAKE STREET / NOTTINGHAM PARK TYPE: OPTIONAL PREMISES LIQUOR LICENSE MANAGER: DANITA DEMPSEY ACTION: RESOLUTION NO. 20-01 Special Events theManager Danita Dempsey was present and answered several questions from Board members. Because of the current situation with COVID-19 and having received no public comments on prior Public Hearings (Ordinance 20-03, Resolution 20-03 and Resolution 20-04), written petitions were not required. Chairwoman Smith Hymes opened the public hearing and no comments were made. Board member Underwood moved to approve the New Optional Premises Liquor License application for Town of Avon d/b/a Town of Avon, Resolution 20-01 of the Liquor Authority. Board member Wolf seconded the motion and it passed unanimously by those present. 5. PUBLIC HEARING FOR NEW BEER AND WINE LIQUOR LICENSE Video Start Time: 00:17:09 Part One 5.1. APPLICANT NAME: CRIPPLE CREEK BACKCOUNTRY, INC D/B/A CRIPPLE CREEK BACKCOUNTRY LOCATION: 82 E BEAVER CREEK BLVD #M-102 TYPE: BEER AND WINE (CITY) LIQUOR LICENSE OWNERS: RANDALL YOUNG AND DOUGLAS STENCLIK ACTION: RESOLUTION NO. 20-02 Owners Randall Young and Douglas Stenclik were present and answered several questions from the Board members. Because of the current situation with COVID-19, electronic petitions were accepted. Town Attorney Paul Wisor reported to the Board that one comment from a neighbor business opposing to this license was received. Owners explained that their intention is not to become a bar, only serve occasionally a drink to their AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES TUESDAY, APRIL 28, 2020 SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 AND TOWN HALL CLOSURE customers. Chairwoman Smith Hymes opened the public hearing and no comments were made. Board member Fancher moved to approve Liquor Authority Resolution No. 20-02 approving the application of Cripple Creek Backcountry, Inc d/b/a Cripple Creek Backcountry for a new Beer and Wine Liquor License. Board member Wolf seconded the motion and it passed unanimously by those present. 6. APPROVAL OF THE MINUTES FROM OCTOBER 22, 2019 MEETING Video Start Time: 00:29:42 Part One Board member Fancher moved to approve the minutes from October 22, 2019 Liquor Authority Meeting. Vice Chairwoman Phillips seconded the motion and it passed unanimously by Board members present. 7. WRITTEN REPORT 7.1. REPORT ON RECENT ADMINISTRATIVE APPROVALS 8. ADJOURNMENT The Avon Liquor Authority meeting adjourned at 5:31 p.m. RESPECTFULLY SUBMITTED: ____________________________________ Brenda Torres, Secretary APPROVED: Sarah Smith Hymes ___________________________________ Amy Phillips Jake Wolf Chico Thuon Jennie Fancher Scott Prince Tamra Underwood AVON LIQUOR LICENSING AUTHORITY WRITTEN REPORT To: Avon Liquor Licensing Authority From: Brenda Torres, Liquor Licensing Authority Secretary Date: October 29, 2020 Topic: REPORT ON RECENT ADMINISTRATIVE APPROVALS SUMMARY: The Town’s local liquor licensing regulations allow for administrative review and approval of routine liquor license applications, including: (1) Renewals, (2) Modification of Ownership, (3) Modification of Managers, and (4) Special Event Permits for events already approved by the Town Council. Requirements for administrative approval include that the application is complete, there is no new criminal activity on the background and there are no liquor code violations during the last year. Renewals require notice to be posted for seven days and Special Event Permits for ten days and require the Town Clerk to accept comments and/or requests for a public hearing before the Avon Town Council. In all cases, the Town Clerk has the discretion to refer the application to the Avon Town Council. The Town Clerk is required to report administrative approvals, which is the reason for this written report. Dating back to April 28, 2020, the Town has received nineteen Renewal Applications and two Report of Changes: one -Change of Manager and one -Temporary Modification of Premises due to COVID-19, that have met all the requirements for administrative review and approval and were ultimately approved by the Town Clerk. No comments, complaints, or request for hearings were received. They are as follows: Renewals: Applicant: Walmart Inc d/b/a Walmart #1199 Location: 171 Yoder Avenue Type: Fermented Malt Manager: Casidy Osantowski Applicant: D & D Inc d/b/a Pho Bay Location: 101 Fawcett Rd Unit 180, 185 and LCE Unit 112 Type: Hotel and Restaurant Manager: Denny Duong Applicant: Willis Investments VII, LLC & 7-Eleven, Inc d/b/a 7 Eleven #34209B Location: 008 Nottingham Road Type: Fermented Malt Manager: Donald Willis Applicant: East West Resort LLC & Avon Riverfront LLC d/b/a Westin Riverfront Resort & Spa & Maya Location: 126 Riverfront Lane Type: Resort Complex (City) Manager: Kristen Pryor Applicant: Yerf LLC d/b/a Ticino Italian Restaurant Location: 100 W Beaver Creek Blvd. Unit 127 Type: Hotel and Restaurant Manager: Charles Frey Applicant: Benchmark Liquors INC d/b/a Beaver Liquors Location: 110 E Beaver Creek Blvd. Type: Liquor Store (City) Manager: David Courtney Applicant: Dillon Companies, LLC d/b/a City Market #26 Location: 0072 Beaver Creek Place Type: Fermented Malt Manager: Jeff Gentilini Applicant: Y & Z 2, LLC d/b/a Nozawa Sushi & Kitchen Location: 240 Chapel Place #B-115 Type: Hotel & Restaurant Manager: Yong Hu Yuan Applicant: Prost LLC d/b/a Ein Prosit Fine Beers and Sausages Location: 82 E Beaver Creek Place Suite M107 Type: Hotel & Restaurant Manager: Scott Pohlman Applicant: Look Ma Enterprises LLC d/b/a Loaded Joe’s Location: 82 E Beaver Creek Blvd Suite 104 & 109 Type: Hotel & Restaurant Manager: Brandt Olsen Applicant: Northside Coffee & Kitchen LLC d/b/a Northside Coffee & Kitchen Location: 20 Nottingham Road Units A & C Type: Hotel & Restaurant Manager: James Pavelich Applicant: Chair Four LLC d/b/a VIN 48 Location: 48 E Beaver Creek Blvd Type: Hotel & Restaurant Manager: Collin Baugh Applicant: R&E Enterprise LLC d/b/a Gondola Pizza Location: 240 Chapel Place #113 Type: Hotel & Restaurant Manager: Claudiu Popa Applicant: Krusen INC d/b/a Avon Liquors Location: 100 W Beaver Creek Blvd Type: Liquor Store (City) Manager: Brian Kruse Applicant: Suncor Energy Sales INC d/b/a Shell Location: 0047 Nottingham Road Type: Fermented Malt Manager: Anakut Loya Applicant: Pazzo’s West INC d/b/a Pazzo’s Pizzeria Location: 82 E Beaver Creek Blvd Type: Hotel & Restaurant Manager: Mark Andrew Colwell Applicant: Vail Valley Mexican Foods LLC d/b/a Agave Location: 1060 East Beaver Creek Type: Hotel & Restaurant Manager: George Richard Wheelock Applicant: Avon Properties Leasing, LLC d/b/a Village Warehouse Wines Location: 0101 Fawcett Road #130 Type: Liquor Store (City) Manager: Peter A. Cuccia Applicant: Sauce on the Creek, LLC d/b/a Sauce on the Creek Location: 0101 Fawcett Road #100 Type: Hotel & Restaurant Manager: Deb Applegate Report of Changes: Change of Manager: Applicant: Walmart INC d/b/a Walmart #1199 Location: 171 Yoder Avenue Type: Fermented Malt Beverage Off (City) New Manager: Casidy Osantowski Temporary Modification of Premises Due to COVID-19: Applicant: Bob’s Place LLC d/b/a Bob’s Place Location: 100 W Beaver Creek Blvd Type: Hotel & Restaurant Manager: Christopher Doyle TO: Honorable Mayor Smith Hymes and Council Members FROM: Ineke de Jong, Executive Assistant to the Town Manager RE: Proclamation Honoring Colorado Gives Day DATE: November 5, 2020 SUMMARY: The Town Council is asked to consider adopting the attached Proclamation supporting Colorado Gives Day. According to its supporters, this is a statewide day of philanthropy where citizens are encouraged to “Give Where You Live” by logging onto www.coloradogives.org and investing in local charitable organizations. Colorado Gives Day takes place midnight to midnight on Tuesday, December 8, 2020. Denise Kipp with the Red Ribbon Project will attend Tuesday’s meeting to present more information about Colorado Gives Day ATTACHMENTS: Attachment A: Colorado Gives Day Proclamation OFFICIAL PROCLAMATION TOWN OF AVON, COLORADO HONORING COLORADO GIVES DAY WHEREAS, charitable giving in Eagle County, Colorado is critical to providing support that local nonprofit organizations need to make our community a desirable place to live; and WHEREAS, research shows an increase in online giving both locally and nationally, and many believe it is the future of philanthropy; and WHEREAS, Community First Foundation and FirstBank have partnered in an effort to increase charitable giving in our community through the online giving initiative Colorado Gives Day; and WHEREAS, Colorado Gives Day in 2019 raised $355 million in a single 24-hour period via online donations, $1.1 million to Eagle County nonprofits, at eaglecogives.org, a website allowing donors to direct their contributions to one or more of the 50+ local, Eagle County, charities featured on the site, making it an ideal resource for facilitating charitable giving to our locally-based nonprofit organizations. WHEREAS, Colorado Gives Day is Tuesday, December 8th this year, and all citizens are encouraged to participate because all donations, large or small, can make a difference to nonprofits in need. NOW, THEREFORE, LET IT BE KNOWN: The Town Council of the Town of Avon, Colorado, hereby proclaims Tuesday, December 8, 2020 as Colorado Gives Day in our community. TOWN OF AVON BY: ATTEST: ________________________________ ____________________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ATTACHMENT A (970) 748-4087 ewood@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Elizabeth Wood, Communications & Marketing Manager RE: El Puente Radio Station DATE: November 5, 2020 SUMMARY: The Town of Avon partnered with Rocky Mountain Radio Group in 2020 to produce Town news segments called Straight from the Heart. Town Staff, residents and elected officials have been interviewed by Tony Mauro about new Town initiatives, events, COVID resources and safety and a variety of other Town-related topics. These interviews run on the radio for 2-3 weeks. The annual cost is $4,000. In July, Rocky Mountain Radio Group approached the Town regarding their unique position to launch a bilingual radio station, El Puente (the bridge), primarily for the LatinX community in the Eagle River Valley. Increasing bilingual communication and engagement across the LatinX community is a goal outlined in the Town of Avon 2020 Strategic Plan. Rocky Mountain Radio Group is seeking various levels of sponsorship to launch a bilingual station that will provide a wide range of music and information, including informational shows and content provided by the sponsors. The annual sponsorship cost for El Puente is $24,000. MANAGER’S COMMENTS: Liz has done an excellent job in building the relationship with our local radio partner. Platinum Sponsorship appears to be a great opportunity to substantially increase Avon’s reach to our Latin community in addition to supporting this new radio station. I recommend that Council support inclusion of Platinum Sponsorship for the 2021 budget. ATTACHMENT: 102.1 El Puente Radio Station Presentation 102.1 El Puente Giving a bigger voice to the Latin Community! & Bridging generations, cultures and communities! El Puente Plan The Rocky Mountain Radio Group is in a unique position to launch a new radio station in the Vail Valley. The Plan: •Launch a new Spanish (bilingual) radio station, primarily for the LatinX community •Wider range of music & information than is currently offered on local Spanish radio •Music variety, not dominated by Regional Mexican •Local morning and afternoon/evening DJs •Noon/evening informational shows M-F approximately 10- 15 minutes provided by sponsors •Future Tie-ins to schools for student shows and local sports •Create a station advisory board with sponsors, community stakeholders a station personal Station Goals & Strategies Station Goals: •Engage, entertain and inform the LatinX community about information, events, services and opportunities available in the Vail Valley •Become a trusted voice for the community, by the community Strategies: •Provide an authentic voice to the community for important information regarding schools and family programs, physical & mental health care, legal rights, business/finance/home ownership, employment and events. •Local DJs, supplemented with syndicated shows utilizing a combination of Spanish and limited English language music •Employ members of the community to run day to day operations & digital, social and office functions for the station •Solicit on-going feedback from the community and a station advisory board, on music and local content in order to meet the community needs. Purpose Rationale: •Limited options for Spanish language information and entertainment •Large Latin population •Avid radio listeners Demographic information: •LatinX population is over 12,000 in the Vail Valley •49% of the population in Avon and 33% in the Vail Valley are LatinX •96% of the LatinX population listen to the radio weekly •The LatinX community indicated there is a need for a locally based Spanish radio station with bilingual elements. Population statics were pulled from the City-Data.com website by town. Listenership information was pulled from the 2019 Q4 Nielsen Media report Local interest is from internal surveys of members of the LatinX community Execution In order to reach this audience effectively we will need partners! Community: •We will need the engagement of the community to help shape the content on the station •Employ members of the community full/part time to engage on day-to-day operations, on-air personalities, digital/social content, audio production and interviews Sponsors: •We are looking for tent pole sponsors to help cover on-going station obligations •Platinum Sponsors •Gold Sponsors Sponsorship Opportunities Platinum Sponsorship Partner 2 Platinum sponsorship partners available: •Morning or Afternoon show naming rights (You’re listening to the “Avon” Morning Show) •1 weekly 10 -15 minute recorded segment on the Town of Avon’s topic of the week. (Health, Schools, Policing, Legal, Community programs, etc.) •8 minutes a day in commercial spots, RMRG can assist in production. •1 seat on the Stations Advisory Board •Access to Digital & Social Platforms •Investment:$2,000/mo Gold Sponsorship Partner •2 Gold sponsorship partners still available: •1 weekly 10 -15 minute recorded segment on the Town of Avon’s topic of the week. (Health, Schools, Policing, Legal, Community programs, etc.) •4 minutes a day in commercial spots, RMRG can assist in production. •1 seat on the Advisory Board •Limited Access to Digital & Social Platforms •Investment: $1,250/mo Other Advertising Opportunities •Spots :30 & :60 •Affordable enough for local business •Informational spots :120+ •Weather & road reports •Daily news •Daily sports •Event sponsors •High School sports (Games) -TBD •Spanish English music double plays •Night specialty shows (genre based) (TBD) Sponsorship and Advertising Contacts Gary Schwedt Managing Partner 970 688-0903 Garys@kzyr.com Tony Mauro VP Operations 970 926-7625 Tony@kzyr.com Pauline Araujo Agoitia 102.1 Station Manager 970 376-5175 Michelle Friedman Account Executive 970 376-3205 Michellef@kzyr.com 970-748-4413 mpielsticker@avon.org TO: Honorable Mayor Smith Hymes and Councilmembers FROM: Matt Pielsticker, AICP, Planning Director RE: Oak Village Academy Proposal on Planning Area E DATE: November 2, 2020 SUMMARY: Town Staff received interest and a proposal from a private early childhood education business, Oak Village Academy, to develop a regional facility on “Planning Area E” in the Village at Avon Subdivision. Planning Area “E” is a 3.5 acre parcel owned by the Town located at the intersection of Post Boulevard and East Beaver Creek Boulevard. The proposal and concept would incorporate housing with the educational facility. The purpose of the presentation is an introduction to the Oak Village Academy representatives, receive their presentation on the concept, and provide any initial feedback on the concept. Once the new Avon Town Council is seated, Staff anticipates bringing the concept of a regional early childhood education facility on Planning Area “E” back to Council for determination of Council’s interest and further interest. PROPERTY DESCRIPTION: The property was subdivided and eventually deeded to the Town in 2014 as part of the settlement with Traer Creek. Also described as Lot 3, 4468 East Beaver Creek Boulevard, the property measures 3.536 acres. The lot is encumbered with overlapping utility easements as shown below. The lot is mostly flat except for the topography on the eastern Post Boulevard frontage. It is estimated that of the 3.53 acres, approximately 2.3 acres is developable when backing out easements and steep topography on the eastern frontage. Page 2 of 2 Adjacent properties include: Union Pacific Railroad and single-family homes to the south, undeveloped Lot 8 (.51 acres) immediately to the west, East Beaver Creek Boulevard and Piedmont Apartments to the north, and Post Boulevard right-of-way to the east. ZONING: The location of Planning Area E (also referred to as “the school site”) has moved within the Planned Unit Development (PUD) multiple times since 1998. Its final location was ratified as part of a Major PUD Amendment process in 2012. Planning Area E is zoned for educational uses. There is no mention of residential uses by right or by special review in this planning area. A PUD Amendment would be one of the necessary steps to realize this proposal if it were to move forward with a housing. OTHER FACILITIES: The PowerPoint presentation details the uncertainty that surrounds other early childhood operations in the upper portion of the valley. Other facilities in Avon include Mountain Montessori (capacity 40), and Rumpelstiltskin (capacity 42), and Prater Lane (capacity 92). Prater Lane operates out of the Seasons building and primarily serves Vail Resorts employees. Prater Lane utilizes portions of the Main Street Pedestrian Mall, by license agreement, for outdoor play. When the Town pursues the extension of the Main Street Pedestrian Mall toward Harry A. Nottingham Park it is expected to result in the eliminate the feasibility of this outdoor play area in this location. ACTION: No action is requested or required at the November 10, 2020 meeting. The work session is intended to familiarize Town Council with the property and one possible concept for the site. If there is interest moving forward, in any capacity, several business items (i.e. PUD Amendment, solicit partnerships with other agencies, Village at Avon Design Review Board, RFP Process) would need to be hashed out. Official direction from new Town Council would be requested at a future date. RECOMMENDATION: Engage regional partners to determine if joint participation is possible for an educational facility on Planning Area E, and report back to new Town Council in early 2021. Thank you, Matt Pielsticker ATTACHMENTS: Introduction Letter Power Point Presentation PUD and Development Agreement Excerpts Avon Town Council 100 Mikayla Way Avon, CO 81620 September 30, 2020 Dear Council Members, Thank you for the opportunity to present this Outdoor Learning Environment concept and building for your review. Enclosed is a copy of our presentation. We are excited to share our vision for a top-quality early childhood education facility in an ideal Avon location. The school we are proposing is modeled after Oak Village Academy in Cary, North Carolina. Conceived and built by Eli Zablud, Alicia Fink, and Adam Zablud in 2018, the school’s approach to learning focuses on the early childhood developmental benefits of connecting children with nature. As a resident, parent and education champion in Eagle County, I am acutely aware of the early childhood education challenges that Eagle County has been facing for decades. I met Eli, a longtime visitor and Avon second homeowner resident, in the spring of 2019. We immediately bonded over a mutual passion for education. After sharing viewpoints and philosophies, Eli invited me to North Carolina to see and experience Oak Village Academy in person. He shared his vision of establishing this school concept and design within Eagle County and asked me to join the team. We believe this is the right school for this community at a crucial time, and the Town of Avon has the ability to provide access to an optimal piece of land to bring this to fruition. In collaboration with town council, staff, and leadership, the Oak Village Academy team looks forward to the opportunity to work together on a school that is designed and maintained with distinctive quality, strategically aligned with county partners, offering benefits and subsidies to residents that will fulfill a long-awaited need within this community. Sincerely, The Oak Village Academy – Avon Team Eli Zablud Amy Lewis Adam Zablud Oak Village Academy Avon Eli Zablud Adam Zablud Amy Lewis About Our Team ▪Eli Zablud ▪Developer of residential and commercial real estate since the 1980’s ▪Started first preschool -Little Pros Academy in 1999 ▪Created Oak Village Academy -Cary, NC in 2017 ▪Adam Zablud ▪Graduated with Bachelor of Science in Operation Management from UNCW in 2015 ▪Working with Eli on developing/managing properties since 2016 ▪COO of Business Operation at Oak Village Academy since 2017 ▪Amy Lewis ▪Full time resident since 2002; worked in advertising for RE development at Spark in Avon ▪Started consulting business in 2008; mother of two ECS students; Eagle-Vail resident ▪Executive Director for the Education Foundation of Eagle County 2016-2020 Eagle County Early Childhood Education Challenges The following child care facilities have an uncertain future: ▪Children’s Garden of Learning -Vail ▪Serves toddler and preschool ▪57 capacity ▪Prater Lane -Avon ▪Infant through preschool ▪92 capacity ▪Family Learning Center -Edwards ▪Infant through preschool ▪123 capacity Village Campus VIDEO Early Childhood Education Approach ▪Outdoor Learning Environments (OLEs) ▪Enhance cognitive abilities ▪Reduce attention deficit disorder symptoms ▪Improve academic performance ▪Support multiple developmental domains ▪Reduce stress in young children ▪Improve social relationships ▪Technology free classrooms ▪Multi-purpose gymnasium ▪Total capacity for 186 children ▪Age range -6 weeks to 5 years old ▪Low child-to-teacher ratios ▪Infant 1:4 (6 weeks –1 year old) ▪Toddler 1:5 (1 –2 years old) ▪Preschool Prep 1:8 (2 –3 years old) ▪Preschool 1:9 (3 –4 years old) ▪Pre-K 1:12 (4 –5 years old) ▪Large classrooms ▪More space creates a greater opportunity to explore and learn Curriculum ▪STEAM ▪Science, Technology, Engineering, Art, Math ▪LEAP ▪Learning Enhancement and Play ▪Created by NC co-owner Alicia Fink for children 3 and older ▪Spanish as a second language ▪Daily Physical Education ▪Full-time coach on staff ▪Lesson plans ▪Classroom lesson plans are focused on age-appropriate developmental goals ▪Assessments ▪Ongoing child assessments maintained in individual child portfolios ▪Parent/guardian conferences held twice annually School Staffing and Requirements ▪44 Total staff members at full capacity ▪Must pass a criminal background check ▪Education, experience and personality ▪Minimum two-year degree requirement for lead teachers ▪Minimum two years of experience for lead teachers ▪Respect and mutual responsibility between staff members is expected ▪Positive energy, great customer service, support and passion for the children ▪Continued education and training ▪Teachers must complete an initial three weeks of personalized Oak Village Academy training before beginning work in any classrooms ▪18 Hours of continued training is required annually including two Teacher Training Days ▪Oak Village Academy reimburses educators for any courses related to early childhood education Staff Benefits and Retention ▪Benefits Package Comprehensive staff benefits include: ▪401k Matching ▪Profit Sharing ▪Health, Dental, Vision and Free Life Insurance ▪Short Term Disability, Long Term Disability, Cancer, Accident ▪Insurance opt out payment ▪Annual Salary Increases ▪Education Reimbursement ▪Longevity Bonuses ▪Child Care Discounts ▪Paid Sick, Vacation and Holidays ▪Retention ▪Oak Village Academy takes pride in having a high teacher retention and low turnover rate ▪14 out of 23 current staff members have been with us more than two years. (The company’s third anniversary is 9/18/2020) “Because of the support and the appreciation we get from the owners, it has a family feel. That transfers to the team, and when the team is happy, the children and families are happy. Everyone is so loved at Oak Village Academy, LOVE comes first!” –Valerie Vess, Assistant Director Community Housing ▪Housing opportunity for ▪Facility employees ▪Employees within Avon ▪Employees elsewhere in Eagle County ▪Housing will be offered at a discount for approved workforce applicants ▪Rent will be discounted to 75% of average market value ▪Qualifications ▪Must earn 50-80% of Average Median Income (AMI) ▪Deed restriction enforceable by Town with yearly verifications Initial Site Plan Site Plan A ▪Desired parking configuration ▪Combines residential and preschool parking Site Plan C ▪Desired preschool configuration ▪Creates more Outdoor Learning Environments THANK YOU DEVELOPMENT AGREEMENT EXCERPT DEVELOPMENT AGREEMENT EXCERPT DEVELOPMENT AGREEMENT EXCERPT PUD GUIDE EXCERPT PUD GUIDE EXCERPT 970-748-4413 mpielsticker@avon.org TO: Honorable Mayor Smith Hymes and Councilmembers FROM: Matt Pielsticker, AICP, Planning Director RE: Resolution 20-25, Approving a Deed Restriction and Fee Waivers for up to Nine (9) Community Housing Units at 77 Metcalf Road DATE: November 2, 2020 SUMMARY: The owners of a commercial building located at 77 Metcalf Road, BBG Holding, Inc., are proposing a retrofit to their building to include up to nine (9) rental residential units. The units would meet the definition of Community Housing per Chapter 3.14, Community Housing Incentives, Avon Municipal Code. Council can act on Resolution 20-25 (Attachment A), approving the form of the corresponding deed restriction agreement and corresponding fee waiver request. COMMUNITY HOUSING IN IC ZONE DISTRICT: The Town Council has taken several actions in the past two years to secure and foster additional Community Housing. The adoption of the Community Housing Plan preceded an inclusionary zoning ordinance, fee waiver and rebate ordinance, and Mi Casa deed restriction purchase program. Last year Council approved Ordinance 19-06, which added Community Housing as a use by right in the IC zone district. Community Housing is included at ten (10) units per acre. PROPERTY DESCRIPTION: The subject property measures .89 acres and is zoned Light Industrial and Commercial (IC). Assessor’s records indicate that the building was constructed in 1980. Community Development building records indicate that the building measures approximately 14,740 square feet . A large remodel and third floor addition were completed in 2005. In 2017 the Planning and Zoning Commission approved a perpetual special review use permit for the Montessori school, which has been operating since 2004 on the garden level of the building. Professional offices balance out the rest of the building’s square footage. DEED RESTRICTION: The 77 Metcalf Road Deed Restriction Agreement was drafted collaboratively with the property owners and legal counsel. Attachment B to this report include cover memorandums, with clean and redline comparison agreements. The agreement was created under the premise that any number of units, up to nine total, can be constructed. And while not intended to be ‘for sale’ at any time, the agreement does contemplate future sales in case the building is subdivided in the future. Compliance with the deed restriction terms (i.e. yearly verification of tenants) are the responsibility of the property manager. Given the unique nature of the property, other terms of the Town’s standard Community Housing deed restriction agreement were slightly modified. Those changes are detailed in the applicant’s letter of request. FEE WAIVERS: The fee waiver request was submitted in accordance with Chapter 3.14 of the Avon Municipal Code. Waivers include Building Plan Review and Permit Fees ($13,266 estimated), Avon Tap Fees ($36,000 projected), and Sales Tax on Construction Materials ($20,000 estimated). Page 2 of 2 COUNCIL OPTIONS: Potential options for Town Council include: - Request additional information. - Approve Resolution 20-25 and Deed Restriction as drafted. - Approve Resolution 20-25, with modifications. - Deny the request. RECOMMENDATION: My recommendation is to approve Resolution 20-25, thereby approving the deed restriction agreement and fee waiver request to construct up to nine (9) Community Housing units at 77 Metcalf Road. Thank you, Matt Pielsticker ATTACHMENTS: A - Resolution 20-25 B – Cover Memorandums from Property Owner Ex 1. Clean Deed Restriction Agreement Ex 2. Redline Deed Restriction Agreement C – Schematic Building Plans Res 20-25 BBG Inc. 77 Metcalf Fee Waiver Page 1 of 3 TOWN OF AVON RESOLUTION 20-25 WAIVING SALES TAX, DEVELOPMENT CODE FEES, AVON TAP FEES AND BUILDING PERMIT FEES FOR NINE (9) COMMUNITY HOUSING UNITS AT 77 METCALF RD WHEREAS, BBG Holding, Inc, owns the real property described as 77 Metcalf Road, Avon, Colorado; and WHEREAS, the Avon Town Council adopted Ordinance 19-01 on June 25, 2019, an ordinance setting forth a process whereby the Avon Town Council may waive or reduce certain fees related to the development of Community Housing projects; and WHEREAS, the Avon Town Council adopted Ordinance 19-06 on September 24, 2019, an ordinance permitting up to ten Community Housing units per acre in the Light Industrial and Commercial (IC) zone district as a use by right; and WHEREAS, BBG, Inc. intends to construct Community Housing within the existing building located at 77 Metcalf Road with up to nine (9) units (“Community Housing Project”); and WHEREAS, BBG Inc. submitted a written request on October 27, 2020 explaining the conversion of commercial space into housing units, along with a request to waive applicable development related fees (“Waiver”) for its Community Housings Project; and WHEREAS, in exchange for the Waiver, BBG, Inc. has agreed to execute a deed restriction, attached hereto as Exhibit A (“Deed Restriction”), which deed restriction provides the Community Housing units to be constructed shall only be utilized for Eagle County Employees, as defined; and WHEREAS, the Avon Town Council finds that the construction of the Community Housing Project will promote and support, benefit, and enhance the Avon community by providing housing in the vicinity of a regional job center in the IC zone district; and, WHEREAS, the Avon Town Council finds that the promotion and support through the waiver of 1) sales tax on construction materials and fixtures delivered to the Community Housing Project; and 2) Plan Review and Building Permit fees that are required pursuant to Title 15 - Building Code will promote the health, safety and general welfare of the Avon community. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN OF AVON that the Avon Town Council hereby approves the request for the Waiver and execution of the Deed Restriction as follows: ATTACHMENT A Res 20-25 BBG Inc. 77 Metcalf Fee Waiver Page 2 of 3 1. The Town Council hereby finds the Waiver is necessary to promote Community Housing that will meet the current and projected housing needs for the Avon community. 2. The Town Council hereby finds the public as a whole will benefit from the Community Housing Project. 3. The Town hereby grants a waiver of sales tax applicable to the Community Housing Project, which waiver shall only apply to the purchase of construction materials and fixtures delivered to the Community Housing Project which are purchased on or before December 31, 2021. 4. The Town hereby grants a waiver of Plan Review and Building Permit fees applicable to the Community Housing Project that are required pursuant to Title 15 – Building Code. 5. The Waiver provided herein shall only become effective upon execution of the Deed Restriction by BBG, Inc. and the Town. 6. BBG, Inc. shall provide records, receipts and documentation to the Town of the construction materials purchased on or prior December 31, 2021 and shall maintain such records as is required by the Chapter 3.12 Sales Tax of the Avon Municipal Code. ADOPTED November 10, 2020 by the AVON TOWN COUNCIL By: Attest: Sarah Smith-Hymes, Mayor Brenda Torres, Town Clerk ATTACHMENT A Res 20-25 BBG Inc. 77 Metcalf Fee Waiver Page 3 of 3 Exhibit A (Deed Restriction) ATTACHMENT A October 27, 2020 Mr. Matt Pielsticker Town of Avon Community Development RE: 77 Metcalf Apartments, Benchmark at Beaver Creek, Block 1, Lot 22 Mr. Pielsticker & The Avon Town Council: This application is submitted for the conversion of commercial space at 77 Metcalf Road (.89 acres) into Nine (9) Two Bedroom Community Housing Units as allowed per the new IC Zoning that allows Community Housing as a use by right at a rate of 10 DU/Acre. First, I would like to congratulate the Avon Staff and Town Council for their hard work and success in changing the IC Zoning on Metcalf to allow Community Housing as a use by right. A lack of available units has caused issues for many Eagle County businesses and employees, including our own. We appreciate the foresight shown by Avon Town Council in making this change. We are excited about this project for several reasons: • We have employees that have a need for closer housing and other businesses along Metcalf have also expressed an interest in these units for their employees. • The building lends itself exceptionally well to this change. It requires very little changes in the exterior façades, and it cleans up the disjointed interior floor plans. The residential and commercial units will be nicely separated, and it improves our parking by 9 spaces. • Most of the commercial space to be converted has sat vacant for years and with one more large vacant space just having come available, the timing for this project is right. It is going to be a long time before office space is viable to rent, if at all. • This project is a very inexpensive way for Avon to add to their housing stock. The Town of Avon housing plan has set a limit of $75,000 per unit to add housing, but this project will cost the housing pool only $3850 per bed. As per the definition of Community Housing, these units will be deed restricted to Eagle County Workers or Residents per the attached Deed Restriction. In exchange for the deed restricted housing we are requesting the following concessions from the Town of Avon as identified in the current adopted Community Housing Plan, dated December 2018: • Waiver of Community Development Fees. • Waiver of Building Plan Review and Permit Fees. • Waiver of Sales tax for Construction Materials. • Waiver of Town of Avon’s portion of Water Tap Fees. These items are identified as potential concessions for Community Housing on page 5 and Appendix A of the plan. In support of this cover letter, please find the following documents: 1. Minor Development Plan Application (with check for application fee). 2. Disclosure of Ownership form. 3. Proposed Deed Restriction and summary 4. Preliminary Plans (floor plans and elevations). Again, we appreciate the Council making this change to the zoning to allow such use and we look forward to being able to provide housing for Eagle County. Please let us know if there is anything else required for the processing of this application! Respectfully Submitted: BBG Holding Corporation Michele Evans, President ATTACHMENT B MEMORANDUM To: Mayor and Town Council From: Ruth O. Borne, Attorney on behalf of BBG Holdings LLC Date: November 4, 2020 RE: 77 METCALF DEED RESTRICTION AGREEMENT ____________________________________________________________________________ The 77 Metcalf Conversion Project (“Project”) is a unique opportunity for the owner, BBG Holdings LLC and the Town as it is located in the IC Zone District capitalizing on last year’s decision of the Town Council to modify the IC Zone District to allow for affordable/deed restricted housing. The Project is unique as it has never been subdivided and remains wholly owned. The current market conditions for office and commercial space is economically challenging and some of the existing space at the Project has been vacant for years. We faced some difficulty with drafting a Deed Restriction Agreement that fit a wholly owned, leased, mixed use development and contacted Eagle County Housing and worked closely with the Town of Avon staff and Town Attorney to arrive at the attached draft of the 77 Metcalf Deed Restriction Agreement (Ex. 1). In order to highlight some of the changes from the Town’s version, please find a comparison version for your review (Ex. 2). I have outlined some of the notable changes to the Town’s deed restriction template to address the obstacles of a mixed-use project that is limited to leasing units as follows: 1. Town Manager: The Town Manager oversight of approving each lease has been deleted and the burden placed on the Owner/Property Manager to comply with the deed restricted leasing. A certification of compliance will be submitted yearly and the Town Manager still has the ability to inspect at any time they deem necessary. 2. Remote Employment: In light of the recent increase to work remotely and demand for more housing in non-urban communities, the definition in Section 2(c)(iii), which states: “ Households that make their home in Eagle County but work for an employer or employers that are located outside of Eagle County (i.e. remote workers, telecommuters) may be considered eligible if all other eligibility requirements are met.” addresses the concerns Council had in the recently adopted RETT exemption for remote employees and telecommuters. We know the result of the COVID epidemic will be for more telecommuting and remote employment. Therefore, we included the definition to address this impending need in our community. ATTACHMENT B 3. Eligible Household: A new definition taken from the Eagle County housing project in Edwards that is entirely leased to address the leasing component. 4. 12 Month Requirements: The twelve (12) month limitation for leasing is deleted and inserted with a requirement for Owner to make reasonable efforts to lease the respective units. This is based upon the issues the Owner has had over the years in leasing space in the existing Property and the concern that if they are trying to rent them they should not be in default if they do not rent. 5. Re-sale Controls: The proposed Agreement has re-sale controls if the Property is subsequently subdivided and units sold off so that the deed restriction follows, and any purchaser must qualify as an Eligible Purchaser. The provision of notice for approval by the Town to sell to a third party is stricken as a wholly owned Property is an unreasonable restriction if Owner sells entire Property to a third party. Any and all subsequent purchasers will take subject to the deed restriction. 6. Deed in Lieu of Foreclosure: Since the project is a mixed use development and not subdivided, the restriction of a deed in lieu is inequitable as the Owner would be defaulting on the entire Property, not just limited to the residential deed restricted units and unlikely a viable Property for the town to purchase in the event of default. ATTACHMENT B Page 1 of 12 Town of Avon – 77 Metcalf Deed Restriction AVON DEED RESTRICTION 77 METCALF ROAD THIS DEED RESTRICTION AGREEMENT (the “Deed Restriction”) is entered into this day of , 2020 (the “Effective Date”) by and between the Town of Avon, Colorado, a Colorado home rule municipality with an address of 100 Mikaela Way, P.O. Box 975, Avon, Colorado 81620 (the "Town"), and BBG Holding Corporation, a Colorado corporation whose address is: P.O. Box 8266, Avon, Colorado 81620 (collectively "Owner") (each individually a "Party" and collectively the "Parties"). WHEREAS, Owner owns, operates, and leases the real property and the improvements situated thereon, located at 77 Metcalf Road, Avon, Colorado 81620 and more particularly described in Exhibit A hereto (the “Property”); and WHEREAS, in exchange for compensation as set forth in a Deed Restriction Agreement, Owner has agreed to place certain restrictions on the use of the Property for the benefit of the Town by requiring occupancy of up to nine (9) units located on the Property by qualified residents (“Residential Property”), as defined below. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows: COVENANTS 1. Restriction and Recording. The Property is hereby burdened with the covenants and restrictions specified in this Deed Restriction. The Town shall record this Deed Restriction against the Property at Owner’s expense. 2. Definitions. The following definitions shall apply to terms used in the Deed Restriction: a. "Annual Certification" shall mean an annual certification under oath by the Owner or its Property Manager to the Town stating, for the calendar year, the number of Restricted Units rented to Eligible Households in that month and the number of Restricted Units that were not rented in that month. b. “Buyer” shall mean a Qualified Owner who purchases the Property from an Owner. c. “Eligible Households” shall mean at least one member of the Household must meet one or more of the following criteria: i. Is a natural person(s) who is an Eagle County Employee as defined in Section 3.12.020 of the Avon Municipal Code; or ii. Has been hired for a job in Eagle County on a permanent basis to work at least thirty (30) hours per week; or iii. Households that make their home in Eagle County but work for an employer or employers that are located outside of Eagle ATTACHMENT BEx 1 Page 2 of 12 Town of Avon – 77 Metcalf Deed Restriction County (i.e. telecommuters) may be considered eligible if all other eligibility requirements are met; or iv. Is a retired person over the age of sixty (60) and had earned a living primarily in Eagle County prior to his or her retirement; or v. Is a disabled person who had been a full-time employee in Eagle County (subject to the retirement exception) for a minimum of two years immediately prior to his or her disability or has been granted an exception to the minimum of 30 hours per week in order to continue with a federal or state benefit program, if the person works the maximum number of hours per week the program will allow. d. "Household" shall mean all individuals who will occupy a Restricted Unit regardless of legal status or relation to the person named as the tenant on the lease for the Restricted Unit. e. “Owner” shall mean any person who acquires a fee simple ownership interest in the residential portion of the Property (“Residential Property”), subject to the conditions contained herein, and may include either a Qualified Owner or Non- Qualified Owner, as the context requires. i. Qualified Owner shall mean a natural person(s) who is an Eagle County Employee as defined in Section 3.12.020 of the Avon Municipal Code, as amended or a Qualified Employer. ii. Non-Qualified Owner shall mean any person who does not meet the definition of Qualified Owner including persons who originally qualified as a Qualified Owner but whose circumstances change and who no longer meet the definition of Qualified Owner. f. "Primary Residence" shall mean the occupation and use of a Restricted Unit as the primary residence, by taking into account the following circumstances: voter registration in Eagle County Avon, Colorado (or signing an affidavit stating that the applicant is not registered to vote in any other place); stated address on Colorado driver’s license or Colorado identification card; stated address on motor vehicle registration; ownership or use of other residences not situated in Eagle County Colorado; stated residence for income and tax purposes; and such other circumstances as well as such processes for verification to determine that the applicant is continuously occupying and using the residence as a primary residence. Primary residence status may be maintained if unforeseen circumstances arise that requires the resident Eagle County Employee to temporarily leave the residence for a period not to exceed nine (9) months with the intent to return, and the residence is leased to another Eligible Household. ATTACHMENT BEx 1 Page 3 of 12 Town of Avon – 77 Metcalf Deed Restriction g. "Qualified Employer" shall mean an individual or entity that regularly conducts business in Eagle County. Qualified Employers may master lease Restricted Units and sub lease to employees of the Qualified Employer who are members of Eligible Households. Qualified Employers may not impose additional restrictions to Restricted Units in the Property without written consent of the Town of Avon and the Property Manager. h. “Property Manager” shall mean the Owner’s property manager for the subject Property and the Restricted Units. i. "Restricted Unit" a unit that is rented to an Eligible Household pursuant to the terms of this Covenant. j. “Second Home” shall mean the status of the Residential Property when used by any person who has a primary residence that is other than the Residential Property. k. “Short Term Rental” shall mean the rental or lease of the Residential Property for a period of time that is fewer than thirty (30) days. 3. Owner Restrictions. a. It shall not be deemed a violation of Sections 2. above if i. The resident Eagle County Employee becomes disabled and is no longer able to work as determined by the Town in its sole exclusive discretion; or ii. The resident Eagle County Employee has lost full-time employment and is actively seeking reemployment, not to exceed ninety (90) days after loss of employment; or iii. The Property is unoccupied, and the Owner of the Residential Property is actively seeking to sell or lease the Residential Property to an Eligible Household, provided that the Owner is making its best efforts to lease the Residential Property. b. Owner covenants that any lease of the Property shall include a reference that such lease is subject to the terms and conditions of this Deed Restriction, including but not limited to restrictions on the use and occupancy of the Property and cooperation on providing required documentation for verification of Eagle County Employee and Primary Residence status. c. No later than February 1st of each year, the Owner of the Property shall submit to the Town a certification setting forth evidence establishing that the Property’s occupancy and use complies with this Deed Restriction on a form provided by the Town, which form shall be sent to the address of record of the Owner according to the Eagle County Assessor’s Office. ATTACHMENT BEx 1 Page 4 of 12 Town of Avon – 77 Metcalf Deed Restriction d. Reversion of Deed Restricted Units. The Owner may convert all or part of the Restricted Units to the previous commercial use consistent with the Town of Avon municipal code requirements with the written approval of the Town Council. Owner shall deliver to the Town a written notice of intent to revert one or more of the deed Restricted Units to commercial. This covenant shall remain in full force and effect if at any time one or more of the nine (9) deed restricted units is used for residential purposes. 4. Occupancy Restriction. At all times, all of the Restricted Units must be either (i) rented to an Eligible Household for their occupancy and use of the Restricted Unit as Primary Residence (ii) master leased to a Qualified Employer for sublease to its employees who are members of Eligible Households for their occupancy and use of the Restricted Unit as a Primary Residence or (iii) occupied and used by an Owner as the Owner’s Primary Residence . Use or lease of the Residential Property as a Second Home or for Short Term Rental is prohibited. Owner covenants that the Owner shall not permit any occupancy, use or lease of the Residential Property in violation of this Section 4. Any use or lease of the Residential Property which is not allowed or is prohibited by this Deed Restriction shall constitute a default and shall be subject to the enforcement provisions and remedies contained in this Deed Restriction. 5. Re-Sale Controls. In the event the Property is, subdivided, condominiumized or modified from whole ownership in whole or in part, then the residential portion of the Property may not be sold or otherwise transferred to any person other than an Eligible Household in accordance with the procedures for prior verification contained in this Section 3. a. In the case of subdividing, condominiumizing or modifying from whole ownership in whole or part, the Owner shall deliver to the Town a written notice of intent to sell the Residential Property which notice shall include the name(s) of the Buyer(s) and all information required to determine whether the Buyer(s) meets the definition of Qualified Owner. b. Buyer(s) shall submit an administrative fee in the amount of TWO HUNDRED AND FIFTY DOLLARS ($250.00) to the Town to pay for the cost of reviewing and rendering a determination as to whether a prospective Buyer(s) meets the definition of a Qualified Owner. The administrative fee may be increased by the Town Council over time by an amount equal to annual increases in the Consumer Price Index for All Urban Consumers for the Denver-Aurora-Lakewood, Colo., metropolitan area as defined by the United States Bureau of Labor Statistics (or such other Consumer Price Index as may be adopted by the United States Bureau of Labor Statistics for Colorado) to cover the Town’s costs associated with processing the application. c. Once the Town has received complete information concerning the prospective Buyers(s) and has received the administrative fee, the Town shall review the information and make a written determination as to whether the Buyer(s) meets the definition of a Qualified Owner within a reasonable time and not to exceed thirty (30) days. d. The Town may require the Buyer to reimburse the Town for any additional costs that are incurred in the review and determination of whether a Buyer(s) meets the definition of a ATTACHMENT BEx 1 Page 5 of 12 Town of Avon – 77 Metcalf Deed Restriction Qualified Owner, including but not limited to legal costs, title review costs, and investigation costs if reasonably required by the Town to complete its investigation. e. The Owner may sell and convey the Property to the Buyer(s) that is determined in writing by the Town to be a Qualified Owner. f. Upon sale and conveyance of the Residential Property by Owner to a Buyer, the Buyer shall be subject to the same occupancy and use requirements set forth in Section 3 herein. 6. Seniority of Covenant. Any interest in, lien upon or obligation recorded of record against the Property acquired by any person or entity shall be subject and subordinate to the covenants and restrictions set forth in this Covenant. 7. Covenant Runs with the Land. This Covenant and the terms, conditions and other provisions hereof shall be covenants that run with and bind the Property and shall be binding on the Owner and its successors and assigns. Each and every lease and each and every contract, deed or other instrument hereafter executed conveying the Property or any portion thereof shall expressly provide that such lease or conveyance is subject to this Covenant; provided, however, that the covenants, conditions and restrictions contained herein shall survive and be effective as to lessees and successors and/or assigns of all or any po1tion of the Property, regardless of whether such lease, contract, deed or other instrument hereafter executed leasing or conveying the Property or any portion thereof provides that such lease or conveyance is subject to this Covenant. 8. Enforcement. This Covenant is enforceable by the Town of Avon, and their respective successors and assigns, as applicable, or their designee, by any appropriate legal action including but not limited to specific performance, injunction, reversion, or eviction. The remedies provided herein are cumulative and not exclusive, of all other remedies provided by law. 9. Notices. Any notice, consent, or approval 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, to any address provided herein or to any subsequent mailing address of the parties indicated below as long as prior written notice of the change of address has been given to the all parties as indicated. Said notices, consents and approvals shall be sent to the following addresses unless otherwise notified in writing: OWNER: BBG HOLDING LLC P.O. Box 8266 Avon, CO 81620 TOWN OF AVON: Eric Heil, Town Manager townmanager@avon.org P.O. Box 975 ATTACHMENT BEx 1 Page 6 of 12 Town of Avon – 77 Metcalf Deed Restriction Avon, CO 81620 10. Default by Owner. If the Town has reasonable cause to believe that the occupancy or use of the Residential Property is in violation of any provision of this Deed Restriction, the Town may inspect the Residential Property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing the Owner and occupants with at least twenty four (24) hours written notice. Notice to the occupants may be given by posting notice on the door to the Residential Property. This Deed Restriction shall constitute permission to enter the Residential Property during such times upon such notice without further consent. A default by Owner shall include breach of the covenants set forth in this Deed Restriction, including without limitation any of the following: g. Any ownership use or occupancy of the Property in violation of Section 2 above. h. Failure to submit an annual certification of occupancy and use as described in Section 2 above. i. Failure to make payments and comply with the terms of any deed of trust placed on the Property. j. Any action by the Owner to encumber the Residential Property in a manner that conflicts with the terms of this Deed Restriction or renders compliance with the terms of this Deed Restriction impossible or impractical. k. Permitting the use of the Property as a Short-Term Rental or Second Home. 11. Notice and Cure. In the event a violation of this Deed Restriction is discovered, the Town shall send a written notice of default to the Owner detailing the nature of the default and providing sixty- five (65) days for the Owner to cure such default. Notwithstanding the foregoing or any other term of this Deed Restriction, a default for lease or use of the Property as a Short-Term Rental or a Second Home shall be cured by the Owner immediately. The notice shall state that the Owner may request an appeal of the violation finding in writing within ten (10) days of such notice, in which event the Town shall administratively review the finding and, if the violation finding is upheld, the Owner may request in writing within ten (10) days of such administrative decision a hearing before the Avon Town Council. A decision of the Avon Town Council may only be judicially appealed in the District Court of Eagle County pursuant to C.R.C.P. 106. If no administrative or Town Council appeal is timely requested in writing and the violation is not cured within sixty-five (65) days of mailing the notice of default, the Owner shall be deemed to be in violation of this Deed Restriction. If an administrative or Town Council appeal is requested, the decision of the Avon Town Council (or administrative decision if such decision is not timely appealed to the Town Council) shall be final for the purpose of determining if a violation has occurred and, if such violation is not cured within sixty-five (65) days of such final determination, the Owner shall be deemed to be violation of this Deed Restriction. If a decision of the Avon Town Council is judicially appealed, an order of the Court confirming the violation shall be final for the purpose of determining if a violation has occurred and, if such violation is not cured within ATTACHMENT BEx 1 Page 7 of 12 Town of Avon – 77 Metcalf Deed Restriction sixty-five (65) days of such final determination, the Owner shall be deemed to be violation of this Deed Restriction. In the event of any uncured default due to not compliance with the requirements of Section 2, any amounts collected or receipt of other things of value, after the cure period, by the Owner or assigns under such Residential leases in default shall be paid to the Town as a material requirement of curing the notice of default. 12. Remedies. In the event of violation, non-performance, default or breach of any term of this Deed Restriction by the Owner, Town shall have the right to enforce Owner’s obligations herein by an action for any equitable remedy, including injunction or specific performance, as well as pursue an action to recover damages. In addition, any amount due and owing to the Town shall bear interest at the rate of 8% per annum, compounded annually until paid in full. The Town shall be entitled to recover any costs related to enforcement of this Deed Restriction, including but not limited to attorney’s fees, court filing costs and county recording costs. In addition to any other remedy provided by law or equity, the Town may attach a lien for any amount due to the Town upon the Property and enforce the lien in the manner and according to the procedures set forth in Colorado Revised Statutes, Section 31-20-105, and the Owner expressly waives any objection to the attachment of a lien for amounts due to the Town. In the event of a transfer or conveyance of the Property which violates the terms of this Deed Restrictions and constitutes a violation of this Deed Restriction, both the grantor and grantee shall be jointly and severally liable for any damages and costs due under this Deed Restriction. 13. Tax Sale. In the event of a tax sale this Deed Restriction shall remain in full force and effect, shall run with and burden the land, and shall constitute a condition of the subdivision and land use approval which shall survive and sale of the Property through a tax lien sale process. 14. General Provisions. a. Severability. If any term, provision, covenant or condition of this Deed Restriction is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Deed Restriction shall continue and remain in full force and effect. b. Counting Days. If the final day of any notice, default or other event falls on a Saturday, Sunday, legal holiday recognized by the State of Colorado or day upon which the Avon Town Hall is closed for any reason, then the final day shall be deemed to be the next day which is not a Saturday, Sunday, legal holiday or day that the Avon Town Hall is closed. c. Waiver. No waiver of one or more of the terms or provisions of this Deed Restriction shall be effective unless provided in writing. No waiver of any term or provision of this Deed Restriction in any instance shall constitute a waiver of such provision in any other instance. The Town Council may provide a waiver along with any conditions of the waiver with regard to any of the terms and provisions in this Deed Restriction where unusual or unforeseen circumstances exist and the Owner is diligently seeking to cure a default and such waiver, with conditions if any, supports the purpose and intention of this Deed Restriction. ATTACHMENT BEx 1 Page 8 of 12 Town of Avon – 77 Metcalf Deed Restriction d. Amendment. This Deed Restriction may only be amended in writing by the mutual agreement of the Owner and the Town and recorded with the Clerk and Recorder’s Office of Eagle County, Colorado. e. Recording. The Owner shall record this Deed Restriction in the Property Records of Eagle County, Colorado and the original executed and record documents must be returned to the Town. f. Assignment. The Town may not assign this Deed Restriction and all rights and obligations, without consent of the Owner, to any other public entity, non-profit corporation or other entity which is organized and exists for the purpose to provide and promote affordable housing for full time residents. The town must obtain written approval by the Owner. g. No Third-Party Beneficiaries. Nothing contained in this Deed Restriction is intended to or shall create a contractual relationship with cause of action in favor of, or claim for relief for, any third party. h. Choice of Law. This Deed Restriction shall be governed and construed in accordance with the laws of the State of Colorado. Venue for any legal action arising from this Deed Restriction shall be in Eagle County, Colorado. i. Successors. Except as otherwise provided herein, the provisions and covenanted contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. The covenants shall be a burden upon and run with the Property for the benefit of the Town or the Town’s assigns, who may enforce the covenants and compel compliance therewith through the initiation of judicial proceedings for, but not limited to, specific performance, injunctive relief, reversion, eviction and damages. j. Section Headings. Paragraph or section headings within this Deed Restriction are inserted solely for convenience of reference and are not intended to and shall not govern, limit or aid in the construction of any terms or provisions contained herein. k. Gender and Number. Whenever the context so requires in this Deed Restriction, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. [signature page follows] ATTACHMENT BEx 1 Page 9 of 12 Town of Avon – 77 Metcalf Deed Restriction IN WITNESS WHEREOF, the Owner and Town have executed this instrument on the day and the year first written above. OWNER: BBG HOLDING LLC, a Colorado limited liability company By:_________________________________ Name: ______________________________ Its: _________________________________ STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was subscribed, sworn to and acknowledged before me this ___ day of ____________________, 2020, by ___________________________________, BBG HOLDING LLC, the owner of the real property described above. Witness my hand and official seal. My commission expires: ________________ _____________________________ Notary Public TOWN OF AVON: By:__________________________________ Attest:______________________________ Eric Heil, Town Manager Brenda Torres, Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Subscribed before me this ______ day of _______________, 2020, by Eric Heil, as Town Manager, and Brenda Torres, as Town Clerk of the Town of Avon, a Colorado home rule municipal corporation. Witness my hand and official seal. ______________________________ Notary Public My commission expires: ________________ ATTACHMENT BEx 1 Page 10 of 12 Town of Avon – 77 Metcalf Deed Restriction Exhibit A [Insert Property Legal Description] ATTACHMENT BEx 1 Page 1 of 12 Town of Avon – 77 Metcalf Deed Restriction AVON DEED RESTRICTION 77 METCALF ROAD THIS DEED RESTRICTION AGREEMENT (the “Deed Restriction”) is entered into this day of , 2020 (the “Effective Date”) by and between the Town of Avon, Colorado, a Colorado home rule municipality with an address of 100 Mikaela Way, P.O. Box 975, Avon, Colorado 81620 (the "Town"), and BBG Holding Corporation, a Colorado corporation whose address is: P.O. Box 8266, Avon, Colorado 81620 (collectively "Owner") (each individually a "Party" and collectively the "Parties"). WHEREAS, Owner owns, operates, and leases the real property and the improvements situated thereon, located at 77 Metcalf Road, Avon, Colorado 81620 and more particularly described in Exhibit A hereto (the “Property”); and WHEREAS, in exchange for compensation as set forth in a Deed Restriction Agreement, Owner has agreed to place certain restrictions on the use of the Property for the benefit of the Town by requiring occupancy of up to nine (9) units located on the Property by qualified residents, (“Residential Property”), as defined below. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows: COVENANTS 1. Restriction and Recording. The Property is hereby burdened with the covenants and restrictions specified in this Deed Restriction. The Town shall record this Deed Restriction against the Property at Owner’s expense. 2. Definitions. The following definitions shall apply to terms used in the Deed Restriction: a. "Annual Certification" meansshall mean an annual certification under oath by the Owner or its Property Manager to the ECHDATown stating, for each month of the calendar year, the number of Restricted Units rented to Eligible Households in that month, the number of Units rented to someone other than an Eligible Household in that month, and the number of Restricted Units that were not rented in that month. b. “Buyer” meansshall mean a Qualified Owner who purchases the Property from an Owner. c. “Eligible Households”: At” shall mean at least one member of the Household must meet one or more of the following criteria: i. Has earned a living primarily in Eagle County by having worked an average of at least thirty (30) hours per week on an annual basis at a business with an office or job site physically located in Eagle County (multiple jobs in Eagle ATTACHMENT BEx 2 Page 2 of 12 Town of Avon – 77 Metcalf Deed Restriction County may be combined to reach 30 hours per week); or i. Is a natural person(s) who is an Eagle County Employee as defined in Section 3.12.020 of the Avon Municipal Code; or ii. Has been hired for a job in Eagle County on a permanent basis to work at least thirty (30) hours per week; or iii. Households that make their home in Eagle County but work for an employer or employers that are located outside of Eagle County (i.e. telecommuters) may be considered eligible if all other eligibility requirements are met and the Household can prove Eagle County residency for at least 1 year before application submission; or iv. Is a retired person over the age of sixty (60) and had earned a living primarily in Eagle County prior to his or her retirement; or v. Is a disabled person who had been a full-time employee in Eagle County (subject to the retirement exception) for a minimum of two years immediately prior to his or her disability or has been granted an exception to the minimum of 30 hours per week in order to continue with a federal or state benefit program, if the person works the maximum number of hours per week the program will allow. d. "Household" meansshall mean all individuals who will occupy a Restricted Unit regardless of legal status or relation to the person named as the tenant on the lease for the Restricted Unit. e. “Owner means” shall mean any person who acquires ana fee simple ownership interest in the residential portion of the Property, (“Residential Property”), subject to the conditions contained herein, and may include either a Qualified Owner or Non-Qualified Owner, as the context requires. i. Qualified Owner meansshall mean a natural person(s) who is an Eagle County Employee as defined in Section 3.12.020 of the Avon Municipal Code, as amended or a Qualified Employer. ii. Non-Qualified Owner meansshall mean any person who does not meet the definition of Qualified Owner including persons who originally qualified as a Qualified Owner but whose circumstances change and who no longer meet the definition of Qualified Owner. f. g.f. "Primary Residence": The " shall mean the occupation and use of a Restricted Unit as the primary residence, which shall be determined by the Formatted: Justified, Indent: Left: 1.75", Right: 0.47",Space After: 0 pt, Line spacing: Multiple 1.04 li, Nowidow/orphan control, Don't adjust space betweenLatin and Asian text, Don't adjust space between Asiantext and numbers, Tab stops: 2.92", Left Formatted: Font: Bold Formatted: Indent: Left: 1.75", No bullets ornumbering ATTACHMENT BEx 2 Page 3 of 12 Town of Avon – 77 Metcalf Deed Restriction Town Manager by taking into account the following circumstances: voter registration in Eagle County Avon, Colorado (or signing an affidavit stating that the applicant is not registered to vote in any other place); stated address on Colorado driver’s license or Colorado identification card; stated address on motor vehicle registration; ownership or use of other residences not situated in Avon,Eagle County Colorado; stated residence for income and tax purposes; and such other circumstances as well as such processes for verification and investigation deemed appropriate by the Town Manager to determine that the applicant is continuously occupying and using the residence as a primary residence. Primary residence status may be maintained if unforeseen circumstances arise that requires the resident Eagle County Employee to temporarily leave the residence for a period not to exceed nine (9) months with the intent to return, and the residence is leased to another Eagle County Employee(s) after receiving written approval from the Town ManagerEligible Household. h.g. "Qualified Employer" meansshall mean an individual or entity that regularly conducts business in Eagle County. Qualified Employers may master lease unitsRestricted Units and sub lease to employees of the Qualified Employer who are members of Eligible Households. Qualified Employers may not impose additional restrictions to Restricted Units in the Property without written consent of the Town of Avon and the Owner's property manager for the subject Property and the Units (the "Property Manager").. h. “Property Manager” shall mean the Owner’s property manager for the subject Property and the Restricted Units. i. "Restricted Unit" a unit that is rented to an Eligible Household pursuant to the terms of this Covenant. j. “Second Home” shall mean the status of the Residential Property when used by any person who has a primary residence that is other than the Residential Property. k. “Short Term Rental” shall mean the rental or lease of the Residential Property for a period of time that is fewer than thirty (30) days. 3. Owner Restrictions. a. It shall not be deemed a violation of Sections 2. above if i. The resident Eagle County Employee becomes disabled and is no longer able to work as determined by the Town in its sole exclusive discretion; or Formatted: Font: Bold, Font color: CustomColor(RGB(42,42,42)) Formatted: Right: 0", Space Before: 0 pt, After: 10 pt,Line spacing: Multiple 1.15 li, Widow/Orphan control,Adjust space between Latin and Asian text, Adjustspace between Asian text and numbers, Tab stops: Notat 1.46" + 1.46" Formatted: Indent: Left: 0" Formatted: Indent: Left: 0.2" ATTACHMENT BEx 2 Page 4 of 12 Town of Avon – 77 Metcalf Deed Restriction ii. The resident Eagle County Employee has lost full-time employment and is actively seeking reemployment, not to exceed ninety (90) days after loss of employment; or iii. The Property is unoccupied, and the Owner of the Residential Property is actively seeking to sell or lease the Residential Property to an Eagle County EmployeeEligible Household, provided that the period of vacancy ofOwner is making its best efforts to lease the Residential Property shall not exceed twelve (12) months. b. Owner covenants that the Owner shall not permit any occupancy, use or lease of the Property in violation of this Section 2. c.b. Owner covenants that any lease of the Property shall include a reference that such lease is subject to the terms and conditions of this Deed Restriction, including but not limited to restrictions on the use and occupancy of the Property and cooperation on providing required documentation for verification of Eagle County Employee and Primary Residence status. d.c. No later than February 1st of each year, the Owner of the Property shall submit to the Town a certification setting forth evidence establishing that the Property’s occupancy and use complies with this Deed Restriction on a form provided by the Town, which form shall be sent to the address of record of the Owner according to the Eagle County Assessor’s Office. e.d. Reversion of Deed Restricted Units. The Owner may convert all or part of the deed restricted unitsRestricted Units to the previous commercial use consistent with the Town of Avon municipal code requirements with the written approval of the Town Council. Owner shall deliver to the Town a written notice of intent to revert one or more of the deed restricted unitsRestricted Units to commercial. This covenant shall remain in full force and effect if at any time one or more of the nine (9) deed restricted units is used for residential purposes. 4. Occupancy Restriction. At all times, all of the Restricted Units must be either rented A Unit that is rented for a term of less than 30 consecutive days will not qualify as being(i) rented to an Eligible Household. A Unit that is for their occupancy and use of the Restricted Unit as Primary Residence (ii) master leased to a Qualified Employer for sublease to its employees who are members of Eligible Households will qualify for their occupancy and use of the Restricted Unit as a Unit that is rented toPrimary Residence or (iii) occupied and used by an Eligible Household.Owner as the Owner’s Primary Residence . Use or lease of the Residential Property as a Second Home or for Short Term Rental is prohibited. Owner covenants that the Owner shall not permit any occupancy, use or lease of the Residential Property in violation of this Section 4. Any use or lease of the Residential Property which is not allowed or is prohibited by this Deed Restriction shall constitute a default and shall be subject to the enforcement provisions and remedies contained in this Deed Restriction. 5. Re-Sale Controls. TheIn the event the Property is, subdivided, condominiumized or modified from whole ownership in whole or in part, then the residential portion of the Property may not Formatted: Indent: Left: 0.25", Hanging: 0.25", Don'tadd space between paragraphs of the same style Formatted: Indent: Left: 0.1" Formatted: Indent: Left: 0.3" Formatted: Indent: Left: -0.13", Hanging: 0.31" ATTACHMENT BEx 2 Page 5 of 12 Town of Avon – 77 Metcalf Deed Restriction be sold or otherwise transferred to any person other than a Qualified Owneran Eligible Household in accordance with the procedures for prior verification contained in this Section 4.3. a. Owner In the case of subdividing, condominiumizing or modifying from whole ownership in whole or part, the Owner shall deliver to the Town a written notice of intent to sell the Residential Property which notice shall include the name(s) of the Buyer(s) and all information required to determine whether the Buyer(s) meets the definition of Qualified Owner. b. Buyer(s) shall submit an administrative fee in the amount of TWO HUNDRED AND FIFTY DOLLARS ($250.00) to the Town to pay for the cost of reviewing and rendering a determination as to whether a prospective Buyer(s) meets the definition of a Qualified Owner. The administrative fee may be increased by the Town Council over time by an amount equal to annual increases in the Consumer Price Index for All Urban Consumers for the Denver-Aurora-Lakewood, Colo., metropolitan area as defined by the United States Bureau of Labor Statistics (or such other Consumer Price Index as may be adopted by the United States Bureau of Labor Statistics for Colorado) to cover the Town’s costs associated with processing the application. c. Once the Town has received complete information concerning the prospective Buyers(s) and has received the administrative fee, the Town shall review the information and make a written determination as to whether the Buyer(s) meets the definition of a Qualified Owner within a reasonable time and not to exceed thirty (30) days. d. The Town may require the Buyer to reimburse the Town for any additional costs that are incurred in the review and determination of whether a Buyer(s) meets the definition of a Qualified Owner, including but not limited to legal costs, title review costs, and investigation costs if reasonably required by the Town to complete its investigation. e. The Owner may sell and convey the Property to the Buyer(s) that is determined in writing by the Town to be a Qualified Owner. f. Upon sale and conveyance of the Residential Property by Owner to a Buyer, the Buyer shall be subject to the same occupancy and use requirements set forth in Section 3(c) herein. 6. Seniority of Covenant. Any interest in, lien upon or obligation recorded of record against the Property acquired by any person or entity shall be subject and subordinate to the covenants and restrictions set forth in this Covenant. 7. Covenant Runs with the Land. This Covenant and the terms, conditions and other provisions hereof shall be covenants that run with and bind the Property and shall be binding on the Owner and its successors and assigns. Each and every lease and each and every contract, deed or other instrument hereafter executed conveying the Property or any portion thereof shall expressly provide that such lease or conveyance is subject to this Covenant; provided, however, that the covenants, conditions and restrictions contained herein shall survive and be effective as to lessees and successors and/or assigns of all or any po1tion of the Property, regardless of whether such lease, contract, deed or other instrument hereafter executed leasing Formatted: Indent: Left: 0.2" Formatted: Indent: Left: 0.1" Formatted: Indent: Left: -0.25" ATTACHMENT BEx 2 Page 6 of 12 Town of Avon – 77 Metcalf Deed Restriction or conveying the Property or any portion thereof provides that such lease or conveyance is subject to this Covenant. 8. Enforcement. This Covenant is enforceable by the Town of Avon, and their respective successors and assigns, as applicable, or their designee, by any appropriate legal action including but not limited to specific performance, injunction, reversion, or eviction. The remedies provided herein are cumulative and not exclusive, of all other remedies provided by law. 9. Notices. Any notice, consent, or approval 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, to any address provided herein or to any subsequent mailing address of the parties indicated below as long as prior written notice of the change of address has been given to the all parties as indicated. Said notices, consents and approvals shall be sent to the following addresses unless otherwise notified in writing: OWNER: BBG HOLDING LLC P.O. Box 8266 Avon, CO 81620 TOWN OF AVON: Eric Heil, Town Manager townmanager@avon.org P.O. Box 975 Avon, CO 81620 10. Default by Owner. If the Town has reasonable cause to believe that the occupancy or use of the Residential Property is in violation of any provision of this Deed Restriction, the Town may inspect the Residential Property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing the Owner and occupants with at least twenty four (24) hours written notice. Notice to the occupants may be given by posting notice on the door to the Residential Property. This Deed Restriction shall constitute permission to enter the Residential Property during such times upon such notice without further consent. A default by Owner shall include breach of the covenants set forth in this Deed Restriction, including without limitation any of the following: g. Any ownership, use or occupancy of the Property in violation of Section 2 above. h. Failure to submit an annual certification of occupancy and use as described in Section 2 above. i. Failure to make payments and comply with the terms of any deed of trust placed on the Property. Formatted: Indent: Left: -0.25", Right: 0" Formatted: Right: 0" Formatted: Indent: Left: -0.06" ATTACHMENT BEx 2 Page 7 of 12 Town of Avon – 77 Metcalf Deed Restriction j. Any action by the Owner to encumber the Residential Property in a manner that conflicts with the terms of this Deed Restriction or renders compliance with the terms of this Deed Restriction impossible or impractical. k. Permitting the use of the Property as a Short-Term Rental or Second Home. 11. Notice and Cure. In the event a violation of this Deed Restriction is discovered, the Town shall send a written notice of default to the Owner detailing the nature of the default and providing sixty- five (65) days for the Owner to cure such default. Notwithstanding the foregoing or any other term of this Deed Restriction, a default for lease or use of the Property as a Short-Term Rental or a Second Home shall be cured by the Owner immediately. The notice shall state that the Owner may request an appeal of the violation finding in writing within ten (10) days of such notice, in which event the Town shall administratively review the finding and, if the violation finding is upheld, the Owner may request in writing within ten (10) days of such administrative decision a hearing before the Avon Town Council. A decision of the Avon Town Council may only be judicially appealed in the District Court of Eagle County pursuant to C.R.C.P. 106. If no administrative or Town Council appeal is timely requested in writing and the violation is not cured within sixty-five (65) days of mailing the notice of default, the Owner shall be deemed to be in violation of this Deed Restriction. If an administrative or Town Council appeal is requested, the decision of the Avon Town Council (or administrative decision if such decision is not timely appealed to the Town Council) shall be final for the purpose of determining if a violation has occurred and, if such violation is not cured within sixty-five (65) days of such final determination, the Owner shall be deemed to be violation of this Deed Restriction. If a decision of the Avon Town Council is judicially appealed, an order of the Court confirming the violation shall be final for the purpose of determining if a violation has occurred and, if such violation is not cured within sixty-five (65) days of such final determination, the Owner shall be deemed to be violation of this Deed Restriction. In the event of any uncured default due to not compliance with the requirements of Section 2, any amounts collected or receipt of other things of value, after the cure period, by the Owner or assigns under such Residential leases in default shall be paid to the Town as a material requirement of curing the notice of default. 12. Remedies. In the event of violation, non-performance, default or breach of any term of this Deed Restriction by the Owner, Town shall have the right to enforce Owner’s obligations herein by an action for any equitable remedy, including injunction or specific performance, as well as pursue an action to recover damages. In addition, any amount due and owing to the Town shall bear interest at the rate of 8% per annum, compounded annually until paid in full. The Town shall be entitled to recover any costs related to enforcement of this Deed Restriction, including but not limited to attorney’s fees, court filing costs and county recording costs. In addition to any other remedy provided by law or equity, the Town may attach a lien for any amount due to the Town upon the Property and enforce the lien in the manner and according to the procedures set forth in Colorado Revised Statutes, Section 31-20-105, and the Owner expressly waives any objection to the attachment of a lien for amounts due to the Town. In the event of a transfer or conveyance of the Property which violates the terms of this Deed Restrictions and constitutes a violation of this Formatted: Indent: Left: -0.25" Formatted: Indent: Left: -0.19" ATTACHMENT BEx 2 Page 8 of 12 Town of Avon – 77 Metcalf Deed Restriction Deed Restriction, both the grantor and grantee shall be jointly and severally liable for any damages and costs due under this Deed Restriction. 13. Release of Deed Restriction in Event of Foreclosure or Deed in Lieu. l. An Owner shall notify the Town, in writing, of any notification received from a lender of past due payments or defaults in payments or other obligations within five (5) days of receipt of such notification. m. An Owner shall immediately notify the Town, in writing, of any notice of foreclosure under the first deed of trust or any other subordinate security interest in the Property, or when any payment on any indebtedness encumbering the Property is required to avoid foreclosure of the first deed of trust or other subordinate security interest in the Property. n. Within sixty (60) days after receipt of any notice described herein, the Town may (but shall not be obligated to) proceed to make any payment required to avoid foreclosure. Upon making any such payment, the Town shall place a lien on the Property in the amount paid to cure the default and avoid foreclosure, including all fees and costs resulting from such foreclosure. o. Notwithstanding any other provision of this Deed Restriction (but subject to Section 11.f below), in the event of a foreclosure, acceptance of a deed-in-lieu of foreclosure, or assignment, this Deed Restriction shall remain in full force and effect, including without limitation Section 4 hereof, restricting Transfer of the Property. p. The Town shall have thirty (30) days after issuance of the public trustee’s deed or the acceptance of a deed in lieu of foreclosure by the holder in which to purchase by tendering to the holder, in cash or certified funds, an amount equal to the bid price or the redemption price paid by the holder, interest in the amount of eight (8) percent per annum from the date of the issuance of the public trustee’s deed or the recording of a deed in lieu of foreclosure through the date of the Town’s purchase. q. Notwithstanding Section 10.d above, in the event that the Property is encumbered by a mortgage or deed of trust insured by the U.S. Department of Housing and Urban Development (“HUD”) and representing a purchase money first priority mortgage or deed of trust, this Deed Restriction shall automatically and permanently terminate upon foreclosure of such mortgage or deed of trust, upon acceptance of a deed in lieu of foreclosure of such mortgage or deed of trust, or upon assignment of such mortgage or deed of trust to HUD. 14. Option to Purchase. In the event of default by the Owner which is not cured, or upon receipt of a notice of foreclosure or other notice of default provided by the holder of a deed of trust, lien or other encumbrance as provided in Section 10 above (whichever is earlier), the Town shall have the option to purchase (“Option to Purchase”) the Property in accordance with the procedures and terms set forth as follows: r. The Town shall have an Option to Purchase for sixty-five (65) days (“Option Period”). ATTACHMENT BEx 2 Page 9 of 12 Town of Avon – 77 Metcalf Deed Restriction s. The Town shall have right of entry onto and into the Property during the Option Period to inspect the Property. t. The Town shall have the right to purchase the Property for the amount due to the holders of any deeds of trust, liens or other encumbrances, which amounts shall be paid in order of priority of the holders of such deeds of trusts, liens or other encumbrances provided that this Deed Restriction shall remain in effect and burden the Property after acquisition by the Town and upon re-conveyance to a subsequent Qualified Owner. u. The Town shall have the right to assign the Town’s right to purchase the Property to any Qualified Owner provided that this Deed Restriction shall remain in effect and burden the Property. v. Upon payment by Town or assigns, Owner shall convey title to the Property by a special warranty deed in accordance with Colorado Revised Statute §38-30-115 and shall include the words, “and warrant title against all persons claiming under me.” w. Normal and customary closing costs shall be shared equally between the Owner and Town or Town’s assigns. The Town or assigns shall be responsible, at its cost, for any and all title insurance fees, document fees, and recording fees of the deed. Taxes shall be prorated based upon taxes for the calendar year immediately preceding closing. x. If the Town or assigns do not exercise the Option to Purchase during the Option Period, then the holder of a deed of trust shall nonetheless remain subject to this Deed Restriction as provided in Section 10.d above, subject, however, to Section 11.f above. In the event that Town’s Option to Purchase arises from a default by Owner and not a notice of foreclosure or notice of default submitted by the holder of a deed of trust to the Town, then the Town may unilaterally extend the Option Period until such time as Town, or assigns, exercise the Option to Purchase or the Owner cures any and all defaults. 15.13. Tax Sale. In the event of a tax sale this Deed Restriction shall remain in full force and effect, shall run with and burden the land, and shall constitute a condition of the subdivision and land use approval which shall survive and sale of the Property through a tax lien sale process. 16.14. General Provisions. y.a.Severability. If any term, provision, covenant or condition of this Deed Restriction is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Deed Restriction shall continue and remain in full force and effect. z.b.Counting Days. If the final day of any notice, default or other event falls on a Saturday, Sunday, legal holiday recognized by the State of Colorado or day upon which the Avon Town Hall is closed for any reason, then the final day shall be deemed to be the next day which is not a Saturday, Sunday, legal holiday or day that the Avon Town Hall is closed. aa.c. Waiver. No waiver of one or more of the terms or provisions of this Deed Restriction shall be effective unless provided in writing. No waiver of any term or provision of this Deed Restriction in any instance shall constitute a waiver of such Formatted: Indent: Left: -0.19" Formatted: Numbered + Level: 1 + Numbering Style:a, b, c, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" ATTACHMENT BEx 2 Page 10 of 12 Town of Avon – 77 Metcalf Deed Restriction provision in any other instance. The Town Council may provide a waiver along with any conditions of the waiver with regard to any of the terms and provisions in this Deed Restriction where unusual or unforeseen circumstances exist and the Owner is diligently seeking to cure a default and such waiver, with conditions if any, supports the purpose and intention of this Deed Restriction. bb.d. Amendment. This Deed Restriction may only be amended in writing by the mutual agreement of the Owner and the Town and recorded with the Clerk and Recorder’s Office of Eagle County, Colorado. cc.e. Recording. The Owner shall record this Deed Restriction in the Property Records of Eagle County, Colorado and the original executed and record documents must be returned to the Town. dd.f. Assignment. The Town may not assign this Deed Restriction and all rights and obligations, without consent of the Owner, to any other public entity, non-profit corporation or other entity which is organized and exists for the purpose to provide and promote affordable housing for full time residents. The town must obtain written approval by the Owner. ee.g. No Third-Party Beneficiaries. Nothing contained in this Deed Restriction is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party. ff.h. Choice of Law. This Deed Restriction shall be governed and construed in accordance with the laws of the State of Colorado. Venue for any legal action arising from this Deed Restriction shall be in Eagle County, Colorado. gg.i. Successors. Except as otherwise provided herein, the provisions and covenanted contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. The covenants shall be a burden upon and run with the Property for the benefit of the Town or the Town’s assigns, who may enforce the covenants and compel compliance therewith through the initiation of judicial proceedings for, but not limited to, specific performance, injunctive relief, reversion, eviction and damages. hh.j. Section Headings. Paragraph or section headings within this Deed Restriction are inserted solely for convenience of reference and are not intended to and shall not govern, limit or aid in the construction of any terms or provisions contained herein. ii.k. Gender and Number. Whenever the context so requires in this Deed Restriction, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. [signature page follows] ATTACHMENT BEx 2 Page 11 of 12 Town of Avon – 77 Metcalf Deed Restriction IN WITNESS WHEREOF, the Owner and Town have executed this instrument on the day and the year first written above. OWNER: BBG HOLDING LLC, a Colorado limited liability company By:_________________________________ Name: ______________________________ Its: _________________________________ STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was subscribed, sworn to and acknowledged before me this ___ day of ____________________, 2020, by ___________________________________, BBG HOLDING LLC, the owner of the real property described above. Witness my hand and official seal. My commission expires: ________________ _____________________________ Notary Public TOWN OF AVON: By:__________________________________ Attest:______________________________ Eric Heil, Town Manager Brenda Torres, Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Subscribed before me this ______ day of _______________, 2020, by Eric Heil, as Town Manager, and Brenda Torres, as Town Clerk of the Town of Avon, a Colorado home rule municipal corporation. Witness my hand and official seal. ______________________________ Notary Public My commission expires: ________________ ATTACHMENT BEx 2 Page 12 of 12 Town of Avon – 77 Metcalf Deed Restriction Exhibit A [Insert Property Legal Description] ATTACHMENT BEx 2