06-13-2012 Gandorf Tract B, LLC Full Time Resident Housing Deed RestrictionTOWN OF AVON
FULL TIME RESIDENT HOUSING DEED RESTRICTION
NON -PRICE CAPPED
THIS DEED RESTRICTION ( "Deed Restriction ") is made and executed this 13th day of
June, 2012 by Gandorf Tract B LLC ( "Owner "), whose address is PO Box 738, Avon, CO
81620, for the benefit of the Town of Avon, a Colorado home rule municipality ( "Town ").
WHEREAS, as a condition of a planned unit development amendment application submitted
by Gandorf Tract B LLC in June, 2009 to change the use of Tract B, Wildridge PUD,
( "Property ") to allow two duplex lots for a total of four residential units (two duplexes) the Town
Council of the Town of Avon required that one residential unit be subject to and encumbered by
a Full -Time Resident Housing Deed Restriction and which Property shall be burdened and
restricted by covenants which limit the ownership and use of the residential unit to full -time
residents of the Town of Avon, in accordance with the terms set forth in this Deed Restriction.
NOW, THEREFORE, for value received, the Owner does hereby declare and impose the
following covenants on the real Property described below, which covenants shall burden and run
with the Property in perpetuity for the benefit of the Town until modified or released by the
Town.
COVENANTS
1. Property. The parcel of real estate described as 2101 Old Trail Road Unit D (Lot D,
Gandorf Townhomes), according to the plat thereof recorded as Reception #201206947 in the
office of the Eagle County Clerk and Recorder, Colorado ( "Property ") is hereby burdened with
the covenants set forth in this Deed Restriction.
2. Definitions. The following definitions shall apply to terms used in the Deed Restriction:
a. Full -Time Resident shall mean a natural person who holds title to the Property and uses
the Property as the primary residence of such person and which primary residence status shall
be determined by the Town which may consider the rules for determining residence for voter
registration purposes in the State of Colorado as set forth in Colorado Revised Statutes §1 -2-
102, and which primary residence status may be evidenced by voter registration, driver's
license registration, motor vehicle registration, utility bills, federal and state tax returns,
business pursuits, location of employment, residence of children and spouses, situs of personal
property, existence of other residences and the amount of time spent at each residence, and
other information which the Town deems is relevant to the determination of primary residence.
b. 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.
Page 1 of 9
Town of Avon — Full -Time Resident Housing Deed Restriction
June 13, 2012
C. Owner shall mean the Owner of the Property and may include either a Qualified Owner
or Non - Qualified Owner, as the context requires.
d. Part -Time Resident shall mean a natural person who does not meet the definition of Full
Time Resident.
e. Qualified Owner shall mean a natural person who is a Full -Time Resident of the Town
that possesses an ownership interest in the Property in compliance with the terms and
provisions of this Deed Restriction and whose qualifications to own the Property have been
certified by the Town at the time the Owner takes title to the Property, or shall mean the Town
of Avon, Colorado or its designee.
L 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.
g. Short Term Rental shall mean the rental or lease of the Property for a period of time
that is less than thirty (30) days.
3. Use of the Property. The use of the Property shall be limited to occupancy by a Qualified
Owner, immediate family members of a Qualified Owner, lessees and temporary invitees who do
not provide compensation for temporary residence at the Property. A Qualified Owner may rent
or lease rooms in the Property or may rent all of the Property to a natural person or persons who
meet the definition of Full -Time Resident(s) and is a Qualified Lessee for periods of thirty (30)
days or longer. Occupancy of the Property by a Part-Time Resident shall not be allowed and is
prohibited. Use of the Property as a Second Home or for Short Term Rental shall not be allowed
and is prohibited. Any use 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 herein.
4. Re -Sale Controls. The Property may not be sold or otherwise transferred to any person
other than a Qualified Owner in accordance with the procedures for prior verification contained
in this Paragraph 4.
a. Owner shall deliver to the Town a written notice of intent to sell the Property which
notice shall include the name(s) of the buyer(s) and all information required to determine
whether the buyer(s) is a Full -Time Resident and would meet the definition of Qualified
Owner.
b. Buyer(s) shall submit an administrative fee in the amount of ONE HUNDRED AND
FIFTY DOLLARS ($150.00) 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 Full -Time
Resident and would meet the definition of Qualified Owner.
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
Page 2 of 9
Town of Avon — Full -Time Resident Housing Deed Restriction
June 13, 2012
a written determination as to whether the buyer(s) meets the definition of Full -Time
Resident or 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
Full -Time Resident and would meet the definition of Qualified Owner, including but not
limited to legal costs, title review costs, and investigation costs.
e. The Owner may sell and convey the Property to the Buyer(s) that is determined in writing
by the Town to be a Full -Time Resident and will be a Qualified Owner.
5. Default by Owner. A default by Owner shall include breach of the covenants set forth in
this Deed Restriction, including without limitation any of the following:
a. Transfer or conveyance of the Property to a person or entity that is not a Qualified
Owner.
b. Acceptance of the Property by a person or entity that is not a Qualified Owner.
C. Transfer or conveyance of the Property to a person who is a Qualified Owner prior to
obtaining certification from the Town that such person is a Qualified Owner.
d. Lease of the Property to a person or entity that is not a Full Time Resident.
e. Lease of the Property to person who is a Full Time Resident prior to obtaining
certification from the Town that such person is a Full Time Resident and Qualified
Lessee.
L Failure to make payments and comply with the terms of any deed of trust placed on the
Property.
g. Executing a deed of trust, lien or other encumbrance which encumbers the Property with
an indebtedness or obligation that exceeds eighty -five (85 %) of the loan to value ratio of
the Property at the time of executing such deed of trust, lien or other encumbrance.
h. Any action by the Owner to encumber 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.
6. 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. The notice shall state that the
Owner may request in writing a hearing before the Town Council of the Town which may be
held no sooner than ten (10) days after the date of mailing the notice of default. If no hearing is
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 violation of this Deed Restriction. If a
Page 3 of 9
Town of Avon — Full -Time Resident Housing Deed Restriction
June 13, 2012
hearing is held, the decision of the Town Council of the Town shall be final for the purpose of
determining if a violation has occurred. In the event of any lease to a Part-Time Resident or use
of the Property as a Short Term Rental, any amounts collected or receipt of other things of value
by the Owner or assigns under such leases shall be paid to the Town as a material requirement of
curing the notice of default.
7. Remedies. In the event of non - performance, default or breach of any term of this Deed
Restriction, either party shall have the right to enforce the other party'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 one percent (1 %) per month, compounded monthly, until paid in full. The
Town shall be entitled to recover any costs related to enforcement of this Deed Restriction,
including but not limited 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 as a general mechanic's lien in
the manner and according to the procedures set forth in Colorado Revised Statutes, Title 38,
Article 22, and the Owner expressly waives any objection to the attachment of a lien or
enforcement as a general mechanic's 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 default, both the grantor and grantee shall be jointly and severally liable for any damages and
costs due under this Deed Restriction.
8. Liquidated Damages. The parties acknowledge and agree that in the event of a default by
the Owner, the determination of actual monetary damages would be difficult to ascertain.
Therefore, the Town and Owner hereby agree that liquidated damages shall be calculated and
applied in the amount of THREE HUNDRED DOLLARS ($300.00) per day for each day that
the Owner is in default of this Deed Restriction and has failed to cure the default. Liquidated
damages shall be in addition to the Town's ability to recover costs as stated in Paragraph 8
above. Liquidated damages shall be in addition to the Town's right to seek equitable remedies of
injunction and /or specific performance. In the event of any lease to a Part-Time Resident or use
of the Property as a Short Tenn Rental, any amounts collected or receipt of other things of value
by the Owner or assigns under such leases shall be paid to the Town as additional liquated
damages above and in addition to the amounts specified above.
9. Release of Deed Restriction in Event of Foreclosure or Deed in Lieu. In the event of
foreclosure or acceptance of a deed in lieu of foreclosure by the holder of a deed of trust this
Deed Restriction shall be automatically and permanently released and terminated and shall be of
no further force and effect if, and only if, the conditions in this Paragraph 10 are satisfied. In the
event of release and termination of the Deed Restriction, the Town, or its authorized successor,
shall cause to be recorded in the records of the Clerk and Recorder for Eagle County, Colorado, a
full and complete release of this Deed Restriction.
The conditions which must be satisfied prior to the release and tenmination of the deed restriction
shall be as follows:
Page 4 of 9
Town of Avon — Full -Time Resident Housing Deed Restriction
June 13, 2012
a. The deed of trust, lien or other encumbrance against the Property must have previously
been recorded in the Clerk and Recorder's Office of Eagle County, Colorado.
and,
b. The holder of the deed of trust, lien or other encumbrance has given to the Town notice
of Owner's default of the deed of trust or lien, which includes:
i. The legal description and physical address of the Property;
ii. The Owner's name;
iii. The name, mailing address, e -mail address, phone number and contact person of the
holder of the deed of trust or lien;
iv. A copy of the recorded deed of trust, lien or other instrument creating an
encumbrance on the Property; and,
V. Copies of any and all notices of default, notice of foreclosure or correspondence
between the holder of the deed of trust or lien and the Owner.
and,
C. The deed of trust, lien or other encumbrance placed on the Property did not exceed
eighty -five percent (85 %) of the loan to value ratio of the Property when considered with
all existing deeds of trust, liens or other encumbrances at the time of recording such
document.
and,
d. The Option Period as set forth in Paragraph 11 below has expired without exercise of the
Option to Purchase by the Town or assigns;
or,
e. The Town has exercised the Option to Purchase but failed to close or perform under the
Option to Purchase.
10. 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 or other encumbrance as provided in Paragraph 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 in this Paragraph 11 as follows:
a. The Town shall have an Option to Purchase for sixty -five (65) days ( "Option Period ")
Page 5 of 9
Town of Avon — Full -Time Resident Housing Deed Restriction
June 13, 2012
b. The Town shall have right of entry onto and into the Property during the Option Period to
inspect the Property.
C. 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 up to the maximum amount defined in
Paragraph 6.g. above, 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.
d. 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.
e. 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."
L 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.
g. 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 be entitled to a release and termination of this
Deed of Trust in accordance with Paragraph 10 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.
11. 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.
12. 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 or legal holiday recognized by the State of Colorado, then the final day shall be
deemed to be the next day which is not a Saturday, Sunday or legal holiday.
Page 6 of 9
Town of Avon — Full -Time Resident Housing Deed Restriction
June 13, 2012
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.
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 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.
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.
Page 7 of 9
Town of Avon — Full -Time Resident Housing Deed Restriction
June 13, 2012
1. Notice. Any notice, consent or approval, which is required to be given hereunder, shall
be given by either depositing in the U.S. Mail with first class postage pre -paid; mailing
by certified mail with return receipt requested; sending by overnight delivery with a
nationally recognized courier service that delivers to the physical address of the intended
recipient; or, by hand - delivering to the intended recipient. Notices shall be provided to
the Town of Avon at P.O. Box 975, One Lake Street, Avon, CO 81620. Notices shall be
provided to Owner at the address provided by the Eagle County Assessor's office or may
be hand - delivered to any occupant at the Property who is over eighteen (18) years of age.
[signature page follows]
Page 8 of 9
Town of Avon — Full -Time Resident Housing Deed Restriction
June 13, 2012
IN WITNESS WHEREOF, the Owner and Town have executed this instrument on the day
and the year first written above.
OWNER: ( A�i k. C' k ���� jj (-,( —C -
By...��., U , r
[print name]
STATE OF COLORADO )
ss.
COUNTY OF ����'� )
The foregoi instrument was acknowledged before me this..` day of
by
C
My commission expires:
—lo /a3 /901
I�L� ci—� - 4p�-
Notaryoublic
TOWN OF AVON CO:
By: Attest: t _- IZ
, Mayor , Deputy Awn Clerk
) ss.
COUNTY OF EAGLE )
2Zo/ a
Subscribed before me this ,�
day �� L" - by �rCv t �� l' , &ayor,
an w 1 ;41s wn of the Town of Avon, a Colorado home rule municipal
co oration. Cj
My commissi
O•
:i
Page 9 of 9
Town of Avon — Full -Time Resident Housing Deed Restriction
June 13, 2012
Notar blic
C1