TC Ord. No. 1997-08 Rezoning Lot 46 Block 2 Beaver Creek subdivision from RHDTOWN OF AVON
ORDINANCE NO. 97 - 8
SERIES OF 1997
AN ORDINANCE REZONING LOT 46, BLOCK 2,
BEAVER CREEK SUBDIVISION FROM RHD
ESTABLISHING A PUD DEVELOPMENT PLAN
TERRACE FOR 24 TIMESHARE UNITS AND
CONDOMINIUMS, TOWN OF AVON, EAGLE COUNT
BENCHMARK AT
TO PUD AND
FOR LAKESIDE
6 RESIDENTIAL
Y, COLORADO,
WHEREAS, Harvey E. Deutsch, Joel Farkas and 111 Havana. Associates LLC have filed
an application with the Town of Avon for rezoning to PUD and approval of a Planned Unit
Development (PUD) for Lakeside Terrace; and
WHEREAS, after notices required by law, a public hearing was held before the Planning
and Zoning Commission of the Town of Avon on July 15, 1997, at which time the applicant and
the public were given an opportunity to express their opinions and present certain information
and reports regarding the proposed Development Plan; and
WHEREAS,, following said public hearing, the Planning and Zoning Commission
forwarded its recommendations regarding the proposed Development Plan to the Town Council
of the Town of Avon; and
WHEREAS; after notices provided by law, a public hearing was held before this Council
on the 26th day of August , 1997, at which time the applicant and the public were
given an opportunity to express their opinions regarding the proposed Development Plan; and,
WHEREAS, based upon the evidence, testimony, and exhibits, and a study of the
Comprehensive Plan of the Town of Avon and of the recommendation of the Planning and
Zoning'Commission of the Town of Avon, this Council finds as follows:
1. That the proper posting, publication and public notice were provided as required by law
for the hearings before the Planning and Zoning Commission and the Town Council of
the Town of Avon.
2. That the hearings before the Planning and Zoning Commission and the Town. Council
were both extensive and complete and that all pertinent facts, matters and issues were
submitted at those hearings.
3. The proposed rezoning is justified by the changing conditions in the character of the area
proposed to be rezoned including development of commercial and governmental facilities
in the neighborhood.
4. The rezoning plan is consistent with the Comprehensive Plan of the Town of Avon,
which designates the land use for this area for residential land uses and the rezoning is in
conformance with the Goals and Policies_ of the Comprehensive Plan.
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5. That adequate facilities are available to serve the development.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, THAT the rezoning of Lot 46, Block 2, Benchmark at Beaver Creek
Subdivision and approval of the Lakeside Terrace Development Plan is hereby approved subject
to the following conditions:
1. Three affordable deed restricted housing units be provided. The units shall be reserved
for employees of the project or be deed restricted for sale as affordable condominium
units with a 3 percent price appreciation cap and affordable to households with 100
percent of the Eagle County Median Family income. Additional provisions shall be as
specified in a deed restriction agreement. The Master Deed Restriction Agreement for
the Occupancy and Resale of Chapel Square shall serve as a model for the agreement.
2. That all development on this property shall conform to the approved Development Plan
which establishes the permitted uses, number of timeshare and dwelling units, amount of
commercial area, locations of buildings and site improvements, building envelopes,
parking and driveway areas, and landscape plan. The Development Plan is attached as
Exhibit A of this ordinance.
3. The plan is approved subject to technical corrections to be approved by staff.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED
POSTED, this 23rcday of July , 1997, and a public hearing shall be held at the
12th
regular meeting of the Town Council of the Town of Avon, Colorado on the day of
August , 1997, at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado.
4!�
� 1
Town Clerk
Avon, Colorado
Town Council
U aLn'
Jac Fawcett, Mayor
INTRODUCED, READ ON SECOND READING, APPROVED AND ORDERED
POSTED this 12 thy of Augu s t , 1997.
Town of Avon
Town Council
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j AcouncillordinancUakepud.doc
w
-Tudy Yoder, Mayor Protem
ATTEST:
Lamb;;
Patty
C, Town Clerk
APPROVED AS TO FORM:
T04, Att orney
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jAcounciKordinancMakepud.doc
STATE OF COLORADO )
COUNTY OF EAGLE ) SS
TOWN OF AVON )
NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN
COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 12TH
DAY OF AUGUST, 1997, AT THE TOWN MUNICIPAL BUILDING FOR THE
PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 97 -8
SERIES OF 1997:
AN ORDINANCE REZONING LOT 46, BLOCK 2, BENCHMARK AT
BEAVER CREEK SUBDIVISION. FROM RHD TO PUD AND ESTABLISHING
A PUD DEVELOPMENT PLAN FOR LAKESIDE'TERRACE FOR 24 TIMESHARE
UNITS AND 6 RESIDENTIAL CONDOMINIUMS, TOWN OF AVON, EAGLE
COUNTY, COLORADO
A copy of said Ordinance is attached hereto, and is also on file
at the office of the Town Clerk, and may be inspected during
regular business hours.
Following this hearing, the Council may consider final passage,of
this Ordinance.
This notice is given and posted by order of the Town Council of
the Town of Avon, Colorado
Dated this 23rd day of July, 1997.
TOWN O�VON, COLORADO
--P tty'Lambe t,
Town Clerk
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON-ON
JULY 23, 1997;
EAGLEBEND APARTMENTS - CLUBHOUSE LAUNDRY;
CITY MARKET IN THE MAIN LOBBY
COAS'T'AL MART, INC.; AND
AVON MUNICIPAL BUILDING IN THE MAIN LOBBY
MASTER DEED RESTRICTION AGREEMENT
FOR THE OCCUPANCY AND RESALE OF
LAKESIDE TERRACE
THE MASTER DEED RESTRICTION AGREEMENT (the "Agreement ") is made
and entered into this day of , 1997 by the TOWN
OF AVON ( "the Town ") and Harvey E. Deutsch, Joel H. Farkas and
111 Havana Associates (the owner of the property, hereinafter
referred to as "Declarant ").
WITNESSETH:
WHEREAS, Declarant owns the real property described in Exhibit
"A" attached hereto and incorporated herein. For purposes of the
agreement, the real property and all dwellings, appurtenances,
improvements and fixtures associated therewith shall hereinafter
be referred to as the "Property."
WHEREAS, pursuant to the requirements of Ordinance No. 97 -8,
Declarant agrees to establish a sale price not to exceed
$151,669.29 per unit for three Units located on the Property or
in the Falcon Point Condominium Project.
WHEREAS, Declarant agrees to restrict the transfer of the Units
to "Qualified Buyers," as defined as follows:
a) An owner who occupies the Unit as his or her primary
place of residence.
b) An owner who is a full time employee working at least
thirty hours per week in Avon or Eagle County, or a retired
person who has been a full time employee in Avon or Eagle County
a minimum of four years immediately prior to his or her
retirement, or a person having a medical disability who has been
a full time employee in Avon or Eagle County a minimum of two
years immediately prior to his or her determination of
disability, or the spouse or dependent of any such persons who
resides with them.
c) An owner whose household income does not exceed 150
percent of the Eagle County Median Family Income as determined by
the Department of Housing and Urban Development guidelines or by
the Town in the event such guidelines cease to be maintained by
the Department ( "ECMFI ").
d) An owner whose total current family net assets are not in
excess of $225,000.00 ($337,500.00 for a retired person) or whose
total current family net assets have not been in excess of
$225,000.00 ($337,500.00 for a retired person) during the two
years preceding if the same were transferred or. disposed of to
confer eligibility hereunder.
e) An owner whose - eligibility is determined on a prioritized
basis, first priority being given to those whose family income
does not exceed 100 percent of the ECMFI, second priority being
given to those whose family income exceeds 100 percent but does
not exceed 120 percent of the ECMFI, third priority being given
to those whose family income exceeds 120 percent but does not
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exceed 140 percent of the ECMFI, fourth priority being given to
those whose family income exceeds 140 percent but does not exceed
150 percent of ECMFI and fifth priority being given to any
business within the Town of Avon having ten or fewer employees
for employee housing. Within each of the foregoing priorities,
additional priority shall be given to residents of Avon and to
persons employed within Avon or who were employed within Avon
four or two years, as the case may be, prior to retirement or
determination of disability. Priorities shall be determined in
accordance with a procedure reasonably approved by the Town.
WHEREAS, in addition, Declarant agrees that this agreement shall
constitute a resale agreement setting forth the maximum sale
price for which the Units may be resold ( "Maximum Sale Price ")
and the terms and provision controlling the resale of the Units.
WHEREAS, Declarant may also elect either to retain ownership of
the Units or to convey the Units to the Falcon Point Condominium
Association or the Lakeside Terrace Condominium Association ( "the
Associations "), so long as the Units are leased to employees of
Declarant, the Associations or any manager or managing agent
employed by Declarant or the Associations to manage the
Associations (a "Qualified Employee ").
WHEREAS, by this Agreement, Declarant agrees to restrict the
Units against use and occupancy inconsistent with this Agreement.
WHEREAS, "Qualified Buyers" are natural persons or business
entities meeting the requirements of "Qualified Buyers" at the
time of the closing of the sale from Declarant to the Qualified
Buyers, and who represent and agree pursuant to this Agreement
that they meet the definition of "Qualified Buyer" contained
above and that they will occupy the Units as their sole place of
residence, not engage in any business activity in the Units,
other than that permitted in that zone district or by applicable
ordinance, and not sell or otherwise transfer the Units for use
in a trade or business.
WHEREAS, an "Owner" is a person who is a Qualified Buyer who
acquires an ownership interest in a Unit in compliance with the
terms and provisions of this Agreement; it being understood that
such person shall be deemed an "Owner" hereunder only during the
period of his or her ownership of the Unit and shall be obligated
hereunder for the full and complete performance and observance of
all covenants, conditions and restrictions contained herein
during such period.
WHEREAS, the "Units" are a one bedroom Unit and a two bedroom
Unit designated by Declarant in the Project and a one bedroom
Unit designated by Declarant in the project or the Falcon Point
Project. '' I lillll I'lll I'lll'
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WHEREAS, it is anticipated that individuals shall acquire an
ownership interest in the Unit in the future, who will be
considered "Owners," and who shall be obligated hereunder for the
full and complete performance and observation of all covenants,
conditions and restrictions contained herein.
NOW, THEREFORE, for value received, the receipt and
sufficiency of which is hereby acknowledged, Declarant hereby
represents, covenants and agrees as follows:
1. The use and occupancy of the Units shall henceforth be
limited exclusively to housing for natural persons who meet
the definition of Qualified Buyers and their families or
Qualified Employees and their families.
2. An Owner, in connection with the purchase of a Unit, must:
a) occupy the Unit as his or her sole place or residence
during the time that the Unit is owned;
b) not engage in any business activity on or in such Unit,
other than permitted in that zone district or by applicable
ordinance;
c) sell or otherwise transfer such Unit only in accordance
with this Agreement;
d) not sell or otherwise transfer such Unit for use in a
trade or business; and
e) not permit any use or occupancy of such Unit except in
compliance with this Agreement.
3. Breach of Agreement
a. It shall be a breach of this Agreement for an Owner to
default in making payments or performing other
obligations due or to be performed under a promissory
note secured by a first deed of trust encumbering the
Unit. Owner must notify the Town, in writing, of any
notification received from a lender, or its assigns, of
past due payments or default in making payments or
performing other obligations due or to be performed
under a promissory note secured by a first deed of
trust, as described herein, within five calendar days
of Owner's notification from lender, or its assigns, of
said default or past due payments.
b. Upon notification from Owner, as provided above, or
other notice of such default, the Town may offer loan
counseling or distressed loan services to the Owner, if
any of these services are available, and is entitled to
require the Owner to sell the Unit to avoid the
commencement of any foreclosure proceeding against the
Unit. In the event that the Town determines that sale
of the Unit is necessary, owner shall immediately
execute a standard Listing Contract on forms approved
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by the Colorado Real Estate Commission with a licensed
realtor, providing for a 180 -day listing period. In
the event of a listing of the Unit pursuant to this
Paragraph 3, the Town is entitled to require the owner
to accept the highest of any qualified bids which
satisfies the Owner's financial or other obligations
due under the promissory note secured by a first deed
of trust in favor of the Town, as described herein, and
to sell the Unit to such qualified bidder.
C. Upon receipt of notice as provided in paragraphs 3a and
3b, Town shall have the right, in its sole discretion,
to cure the default or any portion thereof. In such
event, the Owner shall be personally liable to the Town
for past due payments made by the Town together with
interest thereon at the rate specified in the
promissory note secured by the deed of trust, plus one
percent (1 %) and all actual expenses of the Town
incurred in curing the default. The Owner shall be
required by the Town to execute a promissory note
secured by a deed of trust encumbering the Unit in
favor of the Town for the amounts expended by the Town
as specified herein, including future advances made for
such purposes. The Owner may cure the default and
satisfy his or her obligation to the Town under this
subparagraph at any time prior to execution of a
contract for sale, upon such reasonable terms as
specified by the Town. Otherwise, Owner's indebtedness
to the Town shall be satisfied from the Owner's
proceeds at closing.
4. This Agreement shall constitute covenants running with the
real property, described in Exhibit "A," as a burden
thereon, for the benefit of, and shall be specifically
enforceable by, the Town, by any appropriate legal action
including but not limited to specific performance,
injunction, reversion or eviction of non - complying owners
and /or occupants. Upon such designation, duly executed and
recorded by Declarant, this Agreement will apply only to the
Units so designated. The Town of Avon hereby also approves
the creation of a thirty -first unit from any existing Unit
in the PUD for purposes of submittal to this Agreement and
acknowledges that the creation of the new unit is within the
maximum allowed density for the PUD and otherwise conforms
to the required off - street parking requirements of the Town.
MAXIMUM SALE PRICE
5. In the event that an Owner shall desire to sell a Unit, he
or she shall deliver to the Town a Request to Sell, Exhibit
"D" hereto. Upon receipt of written authorization from the
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Town,to proceed, the Owner may immediately advertise the
Unit for sale to Qualified Buyers. In the case of resales,
owner may engage a real estate broker for a maximum
commission of one percent of the sale price of the unit, and
the sale price shall then be adjusted upward to include that
commission. Owner may accept any offer which is not greater
than the maximum sale price as defined below; or Owner may
reject all offers and retain ownership of the Unit. Prior
to closing sale of the Unit, Owner shall provide evidence,
in the form attached as Exhibit "E," to show that the Unit
is being sold to a Qualified Buyer and for an amount not
greater than the maximum sale price as defined below. In
the event that Owner receives more than one qualified bid,
Owner shall provide documentation of the selection of a
Qualified Buyer in accordance with the priorities of this
Agreement. Closing shall not occur unless the Town confirms
in writing that the sale meets the requirements of this
agreement.
6. In no event shall the Unit be sold for an amount ( "Maximum
Sale Price ") in excess of the Owner's purchase price, plus
an increase of three percent (3 %) of such price per year,
from the date of purchase to the date of Owner's notice of
intent to sell (prorated at the rate of .25 percent for each
whole month for any part of a year).
7. Determining Maximum Sale Price:
a. For the purpose of determining the Maximum Sale Price
in accordance with this Section, the Owner may add to
the amount specified in Paragraph 6 above, the cost of
Permitted Capital Improvements (as defined in Exhibit
"B "). The amount for capital improvements shall not
exceed ten percent (10 %) of the initial listed
purchase price set forth in paragraph 6 above for an
initial ten year period. For every ten year period,
from the date of original purchase and deed
restriction, another ten percent of the purchase price
may be added to the value of the property for capital
improvements. In calculating such amount, only those
Permitted Capital Improvements identified in Exhibit
"B" hereto shall qualify for inclusion. All such
Permitted Capital Improvements installed or constructed
over the life of the Unit shall qualify.
b. Permitted Capital Improvements shall not include any
changes or additions to the Unit made by the Owner
during construction, except in accordance with
Paragraph 7a above. Permitted Capital Improvements
shall not increase the base price, even if made or
installed during original construction.
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C. In order to qualify improvements as Permitted Capital
Improvements, the Owner must furnish to the Town the
following information with respect to the improvements
which the Owner seeks to include in the calculation of
Maximum Sale Price:
1) Original or duplicate receipts to verify the
actual costs expended by the Owner for the
Permitted Capital Improvements;
2) Owner's affidavit verifying that the receipts are
valid and correct receipts tendered at the time of
purchase; and
3) True and correct copies of any building permit or
certificate of occupancy required to be issued by
the Town of Avon Department of Community
Development with respect to the Permitted Capital
Improvements.
d. For the purpose of determining the Maximum Sale Price
in accordance with this Section, the Owner may also add
to the amount specified in Paragraphs 6 and 7a, the
cost of any permanent improvements constructed or
installed as a result of any requirement imposed by any
governmental agency or homeowners association, provided
that written certification is provided to the Town of
both the applicable requirement and the information
required by Paragraph 7c, 1 -3.
e. In calculating the costs under Paragraphs 7a and 7d,
only the Owner's actual out -of- pocket costs and
expenses shall be eligible for inclusion. Such amount
shall not include an amount attributable to Owner's
"sweat equity" or to any appreciation in the value of
the improvements.
8. Owner shall not permit any prospective buyer to assume any
or all of the Owner's customary closing costs nor accept any
other consideration which would cause an increase in the
purchase price above the bid price so as to induce the Owner
to sell to such prospective buyer.
9. In the event that one qualified bid is received equal to the
Maximum Sale Price herein established, the Unit shall be
sold to such bidder at the Maximum Sale Price. In the event
Owner receives two or more bids equal to the Maximum Sale
Price or if all bids are below Maximum Sale Price and more
than one tieing highest bids are received, the Qualified
Buyer shall be selected by lottery. If the terms of the
proposed purchase contract, other than price, as initially
presented to the owner, are unacceptable to the Owner, there
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shall be a mandatory negotiation period of three (3)
business days to allow the Seller and potential buyer to
reach an agreement regarding said terms, including but not
limited to, the closing date and financing contingencies.
If, after the negotiation period is over, the Seller and
potential buyer have not reached an agreement, the next
bidder's offer will then be presented to the Seller for
consideration and a three (3) business day negotiating
period will begin again. Bids in excess of the Maximum Sale
Price shall be rejected.
10. In the event that title to a Unit vests by descent in
individuals and /or entities who are not Qualified Buyers as
that term is defined herein (hereinafter "Non- Qualified
Transferees) "), the Unit shall immediately be listed for
sale, and the highest bid by a Qualified Buyer shall be
accepted; if all bids are below the Maximum Sale Price or
the appraised market value, the Unit shall continue to be
listed for sale until a bid in accordance with this section
is made, which bid must be accepted. The cost of the
appraisal shall be paid by the Non - Qualified Transferee(s).
a. Non - Qualified Transferee(s) shall join in any sale,
conveyance or transfer of the Unit to a Qualified Buyer
and shall execute any and all documents necessary to do
so; and
b. Non - Qualified Transferee(s) agree not to: 1) occupy
the Unit; 2) rent the Unit, except in strict
compliance with Paragraph 14 hereof; 3) engage in any
other business activity on or in the Unit; 4) sell or
otherwise transfer the Unit except in accordance with
this Agreement; or 5) sell or otherwise transfer the
Unit for use in a trade or business.
C. The Town shall have the right and option to purchase
the Unit, exercisable within a period of fifteen (15)
calendar days after receipt of any sales offer
submitted to the Town by a Non - Qualified Transferee(s),
and, in the event of exercising its right and option,
shall purchase the Unit from the Non - Qualified
Transferee(s) Maximum Sale Price, or the appraised
market value, whichever is less. The offer to purchase
shall be made by the Non - Qualified Transferee within
fifteen (15) days of acquisition of the Unit.
d. Where the provisions of this Paragraph 10 apply, the
Town may require the Owner to rent the Unit in
accordance with the provisions of Paragraph 14 below.
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OWNER RESIDENCE
11. The Units shall be and,are to be utilized only as the
exclusive and permanent place of residence of an Owner. A
permanent residence shall mean the home or place in which
one's habitation is fixed and to which one, whenever he or
she is absent, has a present intention of returning after a
departure or absence therefrom, provided, such absence does
not exceed a period of one year or such greater period of
time as has been approved by the Town in writing for good
cause, including hardship or other extenuating
circumstances. In determining residency, the Town staff
shall consider the following circumstances relating to the
owner: business pursuits, employment, income sources,
residence for income or other tax purposes, age, marital
status, residence of parents, spouse and children if any,
location of personal and real property, and motor vehicle
registration. Owner shall be employed a minimum of thirty
hours per week in Eagle County or be an eligible retired or
disabled person as defined hereinabove under "Qualified
Buyer."
12. In the event Owner changes domicile or ceases to utilize the
Unit as his or her sole and exclusive place of residence,
the Unit shall be offered for sale pursuant to the
provisions of Paragraph 10 of this Agreement. Where the
provisions of this Paragraph 12 apply, the Town may require
the Owner to rent the Unit in accordance with the provisions
of Paragraph 14 below.
13. If at any time the Owner of the Unit also owns any interest
alone or in conjunction with others in any developed
residential property or dwelling unit(s) located in Eagle
County, Owner agrees to immediately list and actively market
said other property or unit for sale and to sell Owner's
interest in such property at a sales price comparable to
like units or properties in the area in which the property
or dwelling unit(s) are located. In the event said other
property or unit has not been sold by Owner within one
hundred eighty (180) days of its listing, then Owner hereby
agrees to immediately list this Unit for sale pursuant to
the provisions of Paragraph 10 of this Agreement. It is
understood and agreed between the parties hereto that, in
the case of an Owner whose business is the construction and
sale of residential properties or the purchase and resale of
such properties, the properties which constitute inventory
in such an Owner's business shall not constitute "other
developed residential property" or "dwelling unit(s)" as
those terms are used in this Paragraph 13.
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RENTAL
14. a. Owner may, with prior written approval of the
Town, rent the Unit consistent with the zoning
ordinances of the Town. Vacation rentals shall
not be permitted. Prior to occupancy, any tenant
must be approved by the Town as meeting the
requirements of a Qualified Buyer established
herein. The Town shall not approve any rental if
such rental is being made by Owner to utilize the
Unit as an income producing asset and shall not
approve a lease with a term less than thirty (30)
days, nor more than six (6) months without clear
and convincing evidence that a lease longer than
six (6) months is necessary. A signed copy of the
lease must be provided to the Town prior to
occupancy by any tenant. Any such lease approved
by the Town shall not exceed an amount equivalent
to the monthly expenses for the cost of principal
and interest payments, taxes, property insurance,
condominium or homeowners assessments (which shall
not be permitted to be increased at a rate in
excess of the Consumer Price Index), utilities
remaining in Owner's name, plus an additional two
percent and a security deposit in an amount not
exceeding one month's rent.
b. Notwithstanding any other provision of this
Agreement to the contrary, an Owner of the Units may
rent the Units to Qualified Employees. The amount of
the rent, including utilities (but excepting telephone
and cable t.v.) shall not exceed thirty percent of
household income and shall meet United States
Department of Housing and Urban Development ( "HUD ")
guidelines for cost of utilities. Based upon 1995
income data from HUD on file with Eagle County, the
amount of the rent shall not exceed $584.17 for a one -
bedroom unit (based upon a one -wage earner household)
and $1,168.35 for a two - bedroom unit (based upon a two -
wage earner household). The foregoing maximum amounts
shall be adjusted annually based upon updated HUD
income data on file with Eagle County.
15. IN NO EVENT SHALL THE OWNER CREATE AN ADDITIONAL DWELLING
UNIT OR LOCK -OFF, AS DEFINED IN THE TOWN OF AVON LAND USE
CODES, IN THE UNIT.
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BREACH
16. In the event that the Town has reasonable cause to believe
the Owner is violating the provisions of this Agreement, the
Town, by its authorized representative, may inspect the Unit
between the hours of 8:00 a.m. and 5:00 p.m., Monday through
Friday, after providing the Owner with no less than 24 hours
written notice.
17. The Town, in the event of a violation of this Agreement,
shall send a notice of violation to the Owner detailing the
nature of the violation and allowing the Owner thirty (30)
days to cure.
REMEDIES
18. There is hereby reserved to the parties hereto any and all
remedies provided by law for breach of this Agreement or any
of its terms. In the event the parties resort to litigation
with respect to any or all provisions of this Agreement, the
prevailing party shall be entitled to recover damages and
,costs, including reasonable attorney's fees.
19. In the event the Unit is sold and /or conveyed without
compliance herewith, such sale and /or conveyance shall be
wholly null and void and shall confer no title whatsoever
upon the purported buyer. Each and every conveyance of a
Unit, for all purposes, shall be deemed to include and
incorporate by this reference, the covenants herein
contained, even without reference therein to this Agreement.
20. In the event that the Owner fails to cure any breach, the
Town may resort to any and all available legal action,
including, but not limited to, specific performance of this
Agreement or a mandatory injunction requiring sale of the
Unit by Owner as specified in Paragraphs 3, 10, 12, and 13.
The costs of such sale shall be taxed against the proceeds
of the sale with the balance being paid to Owner.
21. In the event of a breach of any of the terms or conditions
contained herein by the Owner, his or her heirs, successors
or assigns, the Town's initial listed purchase price of the
Unit as set forth in Paragraph 6 of this Agreement shall,
upon the date of such breach as determined by the Town,
automatically cease to increase as set out in Paragraph 6 of
this Agreement, and shall remain fixed until the date of
cure of said breach.
FORECLOSURE
22. The Town, pursuant to the Option to buy attached hereto as
Exhibit C, the terms of which are incorporated in this
111111 IIIII 111111 111111 IIIII IIIIllllll 111 111111 111 llli
84°.1.983 01/30/1998.04:02P 289 Sawa Fisher
13 of 60 R1301.00 D 0.00 N 0.00 Eagle CO
Agreement by this reference as if fully set forth herein,
shall release and waive its ability to enforce the resale
deed restrictions continued herein, in the event of
foreclosure or the acceptance of a deed in lieu of
foreclosure, provided that said Option to Buy grants to the
Town the option to acquire the Unit within thirty (30) days
after the issuance of a public trustee's deed to the holder
(including assigns of the holder) of the promissory note
secured by a first deed of trust for an option price not to
exceed the redemption price on the last day of all statutory
redemption period(s) and any additional reasonable costs
incurred by the holder during the option period which are
directly related to the foreclosure.
In the event that the Town exercises the option pursuant to
the terms of that certain Option to Buy, described above,
the Town and /or its designee, may sell the Unit to Qualified
Buyers as that term is defined herein, or rent the Unit
according to paragraph 14 until such time that the Unit can
be sold to a Qualified Buyer in accordance with this
Agreement.
GENERAL PROVISIONS
23. Notices. Any notice, consent or approval which 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 party as
long as prior written notice of the change of address has
been given to the other parties to this Agreement.
Said notices, consents and approvals shall be sent to the
parties hereto at the following addresses unless otherwise
notified in writing:
To Declarant: Deutsch, Spillane & Reutzel, PC
9145 E. Kenyon Avenue, #200
Denver CO 80237
To the Town: Town Manager
Town of Avon
P.O. Box 975
Avon CO 81620
To Owner: To the address shown in the deed to
each Unit.
24. Exhibits. All exhibits attached hereto (Exhibits "A," "B,"
"C," "D" and "E") are incorporated herein and by this
reference made a part hereof.
`� 1 111111 IIIII 111111111111 IIIII IIII 111111 IN 111111 III IIII `
643863 01/30/1898 =04 :0W 289 Sara Fisher
14 of 60 R 301.00 0 0.00 N 0.00 Eagle CO
25. Severability. Whenever possible, each provision of this
Agreement and any other related document shall be
interpreted in such a manner as to be valid under applicable
law; but if any provision of any of the foregoing shall be
invalid or prohibited under said applicable law, such
provisions shall be ineffective to the extent of such
invalidity or prohibition without invalidating the remaining
provisions of such documents.
26. Choice of Law. This Agreement and each and every related
document is to be governed and construed in accordance with
the laws of the State of Colorado.
27. Successors. Except as otherwise provided herein, the
provisions and covenants contained herein shall inure to and
be binding upon the heirs, successors and assigns of the
parties.
28. Section Headings. Paragraph or section headings within this
Agreement are inserted solely for convenience or reference,
and are not intended to, and shall not govern, limit or aid
in the construction of any terms or provisions contained
herein.
29. Waiver. No claim of waiver, consent or acquiescence with
respect to any provision of this Agreement shall be valid
against any party hereto except on the basis of a written
instrument executed by the parties to this Agreement.
However, the party for whose benefit a condition is inserted
herein shall have the unilateral right to waive such
condition.
30. Gender and Number
the neuter gender
versa and the use
and vice versa.
31. Personal Liabilit,
personally liable
herein.
Whenever the context so requires herein,
shall include any or all genders and vice
of the singular shall include the plural
Z. Owner agrees that he or she shall be
for any of the transactions contemplated
32. Further Actions. The parties to this Agreement agree to
execute such further documents and take such further actions
as may be reasonably required to carry out the provisions
and intent of this agreement or any agreement or document
relating hereto or entered into in connection herewith.
33. Modifications. The parties to this Agreement agree that any
modifications of this Agreement shall be effective only when
made by writings signed by both parties and recorded with
the Clerk and Recorder,of Eagle County, Colorado.
Notwithstanding the foregoing, the Town reserves the right
111111 IIIII IIIIII�IIIIII IIIiI 1111 111111 111 111111 lli 1111 \\'
j 643963 01/30/1998 04:02P 289 Sara Fisher
15 of 60 R 301.00 D 0.00 N 0.00 Eagle CO
to amend this Agreement unilaterally where deemed necessary
to effectuate the purpose and intent of this Agreement, and
where such unilateral action does not materially impair the
Owners's rights nor any lender's rights under this
Agreement.
34. Owner and Successors. The term "Owner" shall mean the
person or persons who shall acquire an ownership interest in
a Unit in compliance with the terms and provisions of this
Agreement; it being understood that such person or persons
shall be deemed an "Owner" hereunder only during the period
of his or her ownership interest of a Unit and shall be
obligated hereunder for the full and complete performance
and observance of all covenants, conditions and restrictions
contained herein during such period.
IN WITNESS WHEREOF, the parties hereto have executed
this instrument on the day and year first above written.
Its '��
lorado joint venture
111111 IIIII NIIII 111111 IIIII IIII
111111111 111111 III IN
01/30/1998 04:02P 289 Sara Fisher
13
STATE OF COLORADO )
NN ss.
COXJN�Y OF D-a4A )
he foregoing nstru ent was acknowledged before me
this 3D`` day gof 9 ��c�,N-,� , 19�, by Harvey
E. Deutsch, Joel H. Farkas and e;PcP;',rr 4 (;a, 44 , as
i+?•?6.�g l%> of 111 Havana Associates, a Colorado joint
7
P.k�' MV' >'• l+ 1? o
`'' >r Witness my hand and official seal.
'% } .lyiy�~ commission expires: O c�
NoTy Publi `
i ruh ulii oiiinuiiiuui iuoi iii leinfi mi
14
ACCEPTANCE BY THE TOWN OF AVON
The foregoing Master Deed Restriction Agreement and its
terms are hereby adopted and declared by the Town of Avon.
TOWN OF AVON
Its Mayor
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me
this 13th day of January , 19 98 ,
by Jack Fawcett
as Mayor of the Town of Avon.
Witness by hand and official seal.
My CoT sft E*= X001
My commission ex ires:
No ary Public
;•i , ' f, ,::t. HOC f . cF L..r',:.�
Y {E'`GSi6CF}bt6�
'� IIIIIIIIIIIllll1111111111111111111111IIII``
11111111111.11
843983 01/30/1998 04:02P 289 Sara Fisher
18 at 60 R 301.00 D 0.00 N 0.00 Eagle CO
15
EXHIBIT "A"
Lakeside Subdivision, Benchmark at Beaver
Creek, Town of Avon, County of Eagle, State
of Colorado
11111 IN 1111111111111111111111,
645963 01/30/1998 04-02P * 280-Sakra Fisher
19 of 60 R 301.00 D 0.00 N 0.00 Eagle CO
16
Legal Description
EXHIBIT "B"
Permitted Capital Improvements
1. The term "Permitted Capital Improvement" as used in the
Agreement shall include only the following:
a. Improvements or fixtures erected, installed or attached
as permanent, functional, non - decorative improvements
to real property, excluding repair, replacement and /or
maintenance improvements;
b. Improvements for energy and water conservation;
C. Improvements for health and safety protection devices;
d. Improvements to add and /or finish permanent /fixed
storage space; and /or
e. Improvements to finish unfinished space.
2. Permitted Capital Improvements as used in this Agreement
shall NOT include the following:
a. Upgrades /replacements of appliances, plumbing and
mechanical fixtures, carpets and other similar items
included as part of the original construction of the
unit;
b. The cost of adding decks and balconies and any
extensions thereto;
C. Jacuzzis, saunas, steam showers and other, similar,
items;
d. Improvements required to repair, replace and maintain
existing fixtures;, appliances, plumbing and mechanical
fixtures, painting, carpeting and other, similar,
items; and /or
e. Upgrades or addition of decorative items, including
lights, window coverings and other similar items.
3. All Permitted Capital Improvement items and costs shall be
approved by the Town staff prior to being added to the
Maximum Sale Price as defined in the Agreement.
111111111111111111111111111111 IN 111111111111111111 1111.
843983 01/30/1998;04:02P 289 Sera Fisher
.20 of 80 R 301.00 D 0.00 N 0.00 Eagle CO
__ ---- I
EXHIBIT "C"
OPTION TO BUY
In the event of a foreclosure by the holder (including
assigns of the holder) of the promissory note secured by a first
deed of trust on a deed restricted dwelling unit within Lakeside
Terrace or Falcon Point Condominiums (hereinafter "the Property ")
and subject to the issuance of a public trustee's deed to the
holder following the expiration of all statutory redemption
rights, the Town of Avon ( "the Town ") shall have the option to
purchase the unit which shall be exercised in the following
manner:
a. Notice.
The holder shall give such notice to the Town as is
required by law in the foreclosure proceeding.
Said notice shall be sent by certified mail,
return receipt requested, and addressed as
follows:
Town Manager
Town of Avon
P.O. Box 975
Avon CO 81620
b. Option to Purchase.
The Town shall have 30 days after issuance of the
public trustee's deed in which to exercise this option
to purchase by tendering to the holder, in cash or
certified funds, an amount equal to the redemption
price which would have been required of the borrower or
any person who might be liable upon a deficiency on the
last day of the statutory redemption period(s) and any
additional reasonable costs incurred by the holder
during the option period which are directly related to
the foreclosure.
c. Title.
Upon receipt of the option price, the holder shall
deliver to the Town a special warranty deed, conveying
the unit to the Town. The holder shall convey only
such title as it received through the public trustee's
deed and will not create or participate in the creation
of any additional liens or encumbrances against the
unit following issuance of the public trustee's deed to
the holder. The holder shall not be'liable for any of
the costs of conveyance to the Town or its designee.
��� I111111IIIII111111111111IIIIIIIII�IIIIIII I�IIII11 =1111 ��
643963 01/30/1998 04:02P 289 Sara Fisher !
21 of 60 R 301.00 D 0.00 N 0.00 Eagle CO
d. Release.
In the event that the holder is issued a public
trustee's deed and the Town does not exercise the
option to purchase, as provided herein, the Town shall
cause to be recorded in the records of the Clerk and
Recorder of Eagle County a full and complete release.
Such release shall be placed of record within 14 days
after demand therefor by the holder following
expiration of the option and a certified copy of the
release shall be mailed to the holder upon its
recordation.
e. Perpetuities Savings Clause.
If any of the terms, covenants, conditions,
restrictions, uses, limitations, obligations or options
created by this Option to Purchase shall be unlawful or
void for violation of: (a) the rule against
perpetuities or some analogous statutory provision, (b)
the rule restricting restraints on alienation, or (c)
any other statutory or common law rules imposing like_
or similar time limits, then such provision shall
continue only for the period of the lives of the
current duly elected and seated Town Council of the
Town of Avon, Colorado, their now living descendants,
if any, and the survivor of them, plus twenty -one (21)
years.
f. Successors and Assigns.
Except as otherwise provided herein, the provisions and
covenants contained herein shall insure to and be
binding upon the heirs, successors and assigns of the
parties hereto.
g. Modifications.
The parties hereto agree that any modification to this
option to purchase shall be effective only when made by
writings signed by both parties and recorded with the
Clerk and Recorder of Eagle County, Colorado.
IN1I IN 301.00 D 0.00 N 0.00 Eagle CO
645963 01/30/1998-04:02P 269 Sara Fisher
22 of 60
19
EXHIBIT "D"
REQUEST TO SELL
Town Planner
Town of Avon
P.O. Box 975
Avon CO 81620
Re: Resale of Unit _
Point Condominium
Dear Town Planner:
, Lakeside Terrace PUD /Falcon
This letter is my request to sell Unit ,
PUD, with a closing date of
I have estimated the maximum sales
price, as calculated below in accordance with the terms of the
Master Deed Restriction Agreement for the Occupancy and Resale of
Lakeside Terrace.
Purchase price of unit $
Allowed 3% per annum based on
months ownership
Condominium assessments (specifically
assigned to unit for common area
improvements)
Property improvements (itemize below)
Maximum Sale Price $
Sincerely,
Owner
� 111111
VIII IN 1111111111111111111111111111111
643983 01/30/1998 04:02P 289 Sara Fisher
23 of 60 R 301.00 D 0.00 N 0.00 Eagle CO
20
APPROVED:
TOWN OF AVON
By:
Title:
;� 1 111111 IIIII 111111111111 IIIII IIII 111111 III 1111111 II IIII ,
649.963 01/30/1998 04:02P 289 Sara Fisher
14 ei 60 R 301.00 D 0.00 N 0.00 Eagle CO
21
EXHIBIT "E"
Affidavit of Purchaser
STATE OF COLORADO
ss.
COUNTY OF EAGLE
being duly sworn upon
his /her oath, deposes and says, under penalty of perjury, that:
1. He /she has entered into a contract to purchase Unit
, , Town of Avon, County of Eagle and
State of Colorado.
2. He /she is purchasing the Unit to occupy it as
his /her primary place of residence. He /she will not engage in
any business activity in the Unit, other than that permitted in
the applicable zone district or by applicable ordinance, and will
not transfer the Unit for use in a trade or business.
3. His /her income does not exceed percent of the
Eagle County Median Family Income. Attached hereto is a copy of
his /her federal tax return for the tax year immediately prior
hereto.
4. He /she is a full time employee working at least
thirty hours per week in Avon or Eagle County, or a retired
person who has been a full time employee in Avon or Eagle County
a minimum of four years immediately prior to his or her
retirement, or a person having a medical disability who has been
a full time employee in Avon or Eagle County a minimum of two
years immediately prior to his or her determination of
disability, or the spouse or dependent of any such persons who
resides with them.
5. His /her total current family net assets are not in
excess of $225,000.00 ($337,500 for a retired person) and have
not been in excess of $225,000.00 ($337,500.00 for a retired
person) during the two years preceding if the same were
transferred or disposed of to confer eligibility for purchase of
the Unit.
6. He /she states that he /she has received a copy of
and will abide by the terms and conditions of the Master Deed
Restriction Agreement for the Occupancy and Resale of Lakeside
Terrace.
i i5963 iu iuii nigi igiii iuu iiu mm Fisher niinuuui
25 of 60 R 301.00 D 0.00 N 0.00 Eagle CO
DATED the day of ,
The foregoing was subscribed and sworn to before me,
the undersigned Notary Public, on the day
of , , by
My commission expires:
Witness my hand and seal.
Notary Public
IIIIIIINInIIVI11111NI�hNIIIINIIIIIINVIIINII
6/30/1998 04:02P 289 Sara F!
26 of 60 R 301.06 D 0.910 N 0.00 Eagle CO
23
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