21.01.12 Resolution 20-25 BBG Inc. 77 Metcalf Fee WaiverTOWN 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 28, 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
sales tax on construction materials and fixtures delivered to the Community Housing Project 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:
Res 20-25 BBG Inc. 77 Metcalf Fee Waiver
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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 Waiver provided herein shall only become effective upon execution of the Deed Restriction by
BBG, Inc. and the Town.
5. 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 17, 2020 by the AVON TOWN COUNCIL 4Clerk
0Attest: . �lSarah Smith-Hymes, Mayor Brenda Torres, Tot 'r,
Res 20-25 BBG Inc. 77 Metcalf Fee Waiver
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Exhibit A
(Deed Restriction)
Res 20-25 BBG Inc. 77 Metcalf Fee Waiver
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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 Miela 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, 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 who is a
Qualified Employee.
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 theReshictedUnit.
e. "Owner" shall mean any person who acquires a fee simple ownership interest in
the residential portion of the Property, subject to the conditions contained herein,
and may include either a Qualified Owner or Non -Qualified Owner, as the context
requires.
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Town of Avon — 77 Metcalf Deed Restriction
i. Qualified Owner shall mean a natural person(s) who is an Qualified
Employee as defined in herein or a Qualified Employer as defined herein
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.
L "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 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, 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.
g. "Qualified Employee" shall mean an individual who is an employee working in Eagle
County who works an average of at least thirty (30) hours per week on an annual basis or
earns seventy-five percent (75%) of his or her income and earnings by working in Eagle
County; or a retired individual, sixty (60) years or older, who has worked a minimum of
five (5) years in Eagle County for an average of at least thirty (30) hours per week on an
annual basis; or a person who derives income from self-employment whose business is
situated in Eagle County; or a person who works for an employer outside Eagle County if
that person can demonstrate that the residence subject to this deed restriction is the
primary residence for that person.
h. "Qualified Employer" shall mean an individual or entity that regularly conducts
business in Eagle County and employs an Eagle County Employee. Qualified
Employers may master lease Restricted Units and sub lease to Qualified Employee
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.
i. "Property Manager" shall mean the Owner's property manager for the subject
Property and the Restricted Units.
j. "Restricted Unit" a residential unit that is rented to an Eligible Household pursuant to
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Town of Avon — 77 Metcalf Deed Restriction
the terms of this Covenant.
k. "Second Home" shall mean the status of the Property when used by any person who has a
primary residence that is other than the Property.
1. "Short Term Rental" shall mean the rental or lease of the Residential portion of the
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
L 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 Property is actively seeking to
sell or lease the Property to an Eligible Household, provided that the Owner is
making its best efforts to lease the Property.
b. Owner covenants that any lease of the Residential portion 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 1 st 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.
4. 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.
5. 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 portion of the Property as a Second Home or for
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Town of Avon — 77 Metcalf Deed Restriction
Short Term Rental is prohibited. Owner covenants that the Owner shall not permit any
occupancy, use or lease of the Property in violation of this Section 4. Any use or lease of
the residential portion of the 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.
6. 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 portion of the 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. In the event the Property is, subdivided, condominiumized or modified from whole
ownership in whole or in part, the Town reserves the right to amend ormodify this Deed
Restriction on the residential portion or the property only, but there will not be additional
or more restrictive qualifications placed on the residential property.
e. 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.
d. 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.
e. 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.
C The Owner may sell and convey the Residential portion of the Property to the Buyer(s) that
is determined in writing by the Town to be a Qualified Owner.
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Town of Avon — 77 Metcalf Deed Restriction
g. Upon sale and conveyance of the Residential portion of the Property by Owner to a Buyer,
the Buyer shall be subject to the same occupancy and use requirements set forth in Section
3 herein.
7. 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.
8. 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 po 1 tion 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.
9. 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.
10. 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
towmnanager@avon.org
P.O. Box 975
Avon, CO 81620
11. Default by Owner. If the Town has reasonable cause to believe that the occupancy or use of
the residential portion of the Property is in violation of any provision of this Deed Restriction,
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Town of Avon — 77 Metcalf Deed Restriction
the Town may inspect the residential portion of the 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 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:
h. Any ownership use or occupancy of the residential portion of the Property in violation of
Section 2 above.
i. Failure to submit an annual certification of occupancy and use as described in Section 2
above.
j. Failure to make payments and comply with the terms of any deed of trust placed on the
Property.
k. Any action by the Owner to encumber the residential portion of the 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.
1. Permitting the use of the Property as a Short -Term Rental or Second Home.
12. 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.
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Town of Avon -77 Metcalf 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.
13. 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.
14. 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.
15. 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.
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.
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Town of Avon — 77 Metcalf Deed Restriction
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.
L 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]
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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:
TOW AVON:
By:
Eric H ' , own Manager
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
Notary Public OF
Attest:
b :SEAL
Brenda Torres, Town Clerk
Subscribed before me this 1 L day of , 202$, 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
My commission expires: 3k-yc<- '1VL ,'2C;2"k
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Town of Avon — 77 Metcalf Deed Restriction
Notary Public
Kendall Moore
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID# 20154045676
MY COMMISSION EXPIRES June 24, 2024
Exhibit A
[Insert Property Legal Description]
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Town of Avon — 77 Metcalf Deed Restriction