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HomeMy WebLinkAboutcoa.lu.ec.321 & 323 W Bleeker St.0059.20100059.2010.ASLU 321 & 323 W. BLEEKER ST 273512441008 & 273512441009 INSUBSTANTIAL AMENDMENT XXXXXXXXXXXXXXXXXXXXXXXX2`; 0 THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER PARCEL ID NUMBER PROJECTS ADDRESS PLANNER CASE DESCRIPTION REPRESENTATIVE DATE OF FINAL ACTION 0059.2010.ASLU 2735 12 441 008 & 2735 124 41 009 321 & 323 W. BLEEKER ST SARA ADAMS UNSUBSTANTIAL AMENDMENT CHRIS LA CROIX 10.15.10 CLOSED BY ANGELA SCOREY ON: 10. 26.10 2"13�1Z4(A10og �t 2"1351 Zc�- �c5o � File Edit Record Navigate Form Reports Format Tab Help �i h Jclor I Routinq Status I Fees Fee Summary Main Actions Attachments Routing L&ory Valuation I kd Enq Custom Fiefs Sub Permits 1 1 Permit type aslu Aspen Land Use Permit # 0059.2010.ASLU h Address 321 W BLEEKER ST Apti5uite city ASPEN State CO 81611 � Permit Information Master permit Routing queue aslu0l Ap* 10(T�2010 Z Project Status pending Approved 0 b Description INSUBSTANTIAL AMENDMENT TO DEV. ORDER 321323 WEST BLEEKER LOT SPLIT Issued Final Submitted CHRIS LA CROIX 9251936 Cock Running Days = Expires 10!?l2011 Submitted via Owner Last name AHYTE RUTH First name PO BOX 202 ASPEN CO 81 fi12 Phone (1 Address Applicant F1 Owner is applicant? 7 Contractor is applicant? Last name EXPLORATION , LLC First name CARL E. GUNGOLL 6 NE 63RD ST 300 Phone (405) 286-6535 1 Cust # 28910 Address OKLAHOMA CITY OK 73105 Lender Last name First name Phone (j Address i, AspenGold5 (server) angelas 1 of 1 ;; c-14 --t:V v c)l 2 IZ AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.070 AND CHAPTER 26.306 ASPEN LAND USE CODE ADDRESS OF PROPERTY: /V Lq Aspen, CO STATE OF COLORADO ) ss. County of Pitkin ) 1, ".-ash (name, please print) being or repr6senting an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) or Section �26.306.010 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen no later than fourteen (14) days after final approval of a site specific development plan. A copy of the publication is attached hereto. Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen no later than fifteen (15) days after an Interpretation has been rendered. A copy of the publication is attached hereto. Signature The foregoing "Affidavit of Notice" was acknowledged pefore e this 2f-day of c> 20p fZ, by G WITNESS MY HAND AND OFFICIAL SEAL My commission expires: le INair Public ATTACHMENTS: COPY OF THE PUBLICATION PU41 C NOTICE Of DEVELOI'MENT APPROVAL Notice is hereby g • an to the general public of the approval of a site-.lpecific development plan, and the creation of a vested property right pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes. pertaining to the following described property:, Parcel ID Its 2735-124-41-008 and 2735-124-41-009, Legally described as Lots 1 and 2, of the Ruth Whyte Lot Split Subdivision Exemption Plat, aka 321 and 323 West Bleaker Street, City of Aspen. Pitkin County, Colorado. The approval grants an insubstantial amendment to the subdivision development order, Aspen City Council Ordinance No. 17, Series of 2003. The approval reallocates reconstruction credits evenly between the two lots. The changes are depicted in the land use application on file with the City of Aspen. For further information contact Sara Adams at the City of Aspen Community Development Dept., 130 S. Galena St., Aspen, Colorado. (970) 429-2778. City of Aspen Published in The Aspen Times Weekly on October 24, 2010. [5721803] RE'C'E•PTION#11 "97-*3 7," 10/1 010 at 04 : 18 : 55 PM, 1 OF 4, F $26. 00 JLnice K. Vos Caudill, itkinCounty, CO 0 DEVELOPMENT ORDER City of Aspen Community Development Department 6021CS o�•o.aVe lt4{ 61�d �i spa l�I�mu-lk )Jim This Development Order, hereinafter "Order", is hereby issued pursuant to Section 26.304.070, "Development Orders", and Section 26.308.010, "Vested Property Rights", of the City of Aspen Municipal Code. This Order allows development of a site -specific development plan pursuant to the provisions of the land use approvals, described herein. The effective date of this Order shall also be the initiation date of a three (3) -year vested property right. The vested property right shall expire on the day after the third anniversary of the effective date of this Order, unless the change is accomplished or a building permit is approved pursuant to Section 26.304.075, or unless an exemption, extension, reinstatement, or a revocation is issued by City Council pursuant to Section 26.308.010. After Expiration of vested property rights, this Order shall remain in full force and effect, excluding any growth management allotments granted pursuant to Section 26.470, but shall be subject to any amendments to the Land Use Code adopted since the effective date of this Order. This Development Order is associated with the property noted below for the site -specific development plan as described below. Property Owner's Name, Mailine Address and telephone number: Carl E. Gungoll Exploration, LLC, 6 N.E. 63` Street, Suite 300, Oklahoma City, OK, 73105. Leval Description and Street Address of Subject Property: Lots 1 and 2 of the Ruth Whyte Lot Split Subdivision Exemption Plat, aka 321 and 323 West Bleeker Street, Aspen, Colorado. Written Description of the Site Specific Plan and/or Attachment Describine Plan: An Insubstantial Amendment to Subdivision Development Order (Ordinance No. 17, Series of 2003) to reallocate reconstruction credits between both Lot 1 and Lot 2 as follows: a. 1.5 bedrooms to Lot 1 for calculating impact fees. For the purpose of calculating school lands dedication cash in lieu, 50% of the student generation rate for 3 bedrooms applicable at the time of building permit submittal to Lot 1; and b. 1,202.5 square feet of floor area to Lot 1; and c. 1.5 bedrooms to Lot 2 for calculating impact fees, and for the purpose of calculating school lands dedication cash in lieu, 50% of the student generation rate for 3 bedrooms applicable at the time of building permit submittal to Lot 2; and d. 1,202.5 square feet of floor area to Lot 2. Land Use Approval Received and Dates: Administrative approval granted October 15`h, 2010. Effective Date of Development Order: October 24` , 2010. (Same as date of publication of notice of approval.) RECEPTION#: 574397, 10/;win 010 at 04:18:55 PM, 2 OF 4, Janice K. Vos Caudill, County, CO 46 Expiration Date of Development Order: October 24, 2013. (The extension, reinstatement, exemption from expiration and revocation may be pursued in accordance with Section 26.308.010 of the City of Aspen Municipal Code.) Issued this 151h day of October 2010, by the City of Aspen Community Development Director. Chris benao Community Pevelopment Director City of Aspen RECEPTION#: 574397, 10/ 2010 at 04:18:55 PM, 3 OF 4, Janice K. Vos Caudill, kin County, CO • ASPEN OFFICE GAR Victorian Square FIELD & HECHT, P.C. 601 East Hyman Avenue Aspen, Colorado 81611 ATTORNEYS AT L A W Telephone (970) 925-1936 Since 1975 Facsimile (970) 925-3008 www. garfieldhecht.com October 15, 2010 VIA HAND DELIVERY Mr. Chris Bendon Planning Director City of Aspen 130 South Galena Street Aspen, Colorado 81611 RECEIVED nrT 15 2010 CITY OF ASPEN COMMUNITY DEVELOPMENT Re: Reallocation of Reconstruction Credits for Ruth Whyte Lot Split Dear Chris: This office represents Carl E. Gungoll Exploration, LLC ("Owner") and submitted to the City of Aspen (the "City") a land use application dated October 6, 2010, as amended (the "Application") seeking approval to reallocate certain reconstruction credits (the "Reconstruction Credits") that arose from the 2008 demolition of a single family residence (the "Residence") on certain property in Pitkin County, Colorado legally described as Lot 1, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54 ("Lot 1") and Lot 2, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54 ("Lot 2"). Lot 1 is located at 321 W. Bleeker, Aspen, Colorado 81611 and Lot 2 is located at 323 W. Bleeker, Aspen, Colorado 81611. Lot 1 and Lot 2 were created in connection with a Subdivision Exemption approved pursuant to Ordinance 17, Series of 2003 recorded May 14, 2003 at Reception No. 482690 ("Ordinance 17"), and in connection therewith Owner and the City entered into that certain Subdivision Exemption Agreement recorded October 10, 2003 at Reception No. 489618 (the "Subdivision Exemption Agreement"), and Owner recorded the Subdivision Exemption Plat on October 10, 2003 in Plat Book 67 at Page 54 (the "Plat"). At the time the Subdivision Exemption Agreement and Plat were recorded, the Residence straddled the property line separating Lot 1 from Lot 2 with a majority of the Residence situated on Lot 2. A permit to demolish the Residence was issued in 2008 (the "Demolition Permit") and Owner demolished the Residence pursuant to the Demolition Permit. According to the Demolition Permit, the floor area of the Residence was 2,405 square feet and the Residence contained three (3) bedrooms. ® Printed on recycled paper Aspen • Avon • Basalt • Glenwood Springs • Rifle RECEPTION#: 574397, 10/1 2010 at 04:18:55 PM, 4 OF 4, Janice K. Vos Caudill, kin County, CO GARFIELD & HECHT, P.C. Mr. Chris Bendon October 15, 2010 Page 2 At the time the Residence was demolished, City staff determined to allocate the Reconstruction Credits arising from demolition of the Residence (i.e., 2,405 square feet and three bedrooms) entirely to Lot 2 because the majority of the Residence was situated on Lot 2. Please sign this letter to confirm the City approves the Application and agrees to reallocate the Reconstruction Credits as requested in the Application and as set forth below. 1. The Reconstruction Credits attributable to the 2,405 square feet of floor area of the Residence shall be allocated as follows: (i) 1,202.5 square feet to Lot 1; and (ii) 1,202.5 square feet to Lot 2. 2. The Reconstruction Credits attributable to the three (3) bedrooms of the Residence shall be allocated as follows: (a) 1.5 bedrooms to Lot 1, and for the purpose of calculating the school lands dedication impact fee, 50% of the student generation rate for 3 bedrooms applicable at the time of building permit submittal to Lot 1; and (b) 1.5 bedrooms to Lot 2, and for the purpose of calculating the school lands dedication impact fee, 5V,'0 of the student generation rate for 3 bedrooms applicable at the time of building permit submittal to Lot 2. This letter may be recorded in the records of the Pitkin County Clerk and Recorder. Sincerely, Garfield & Hecht, P.C. �Q By: Chris LaCroix Agreed b the Cit of As en: 1 �, B A: C endon, Planning Director ® Printed on recycled paper ASPEN OFFICE Victorian Square 601 East Hyman Avenue Aspen, Colorado 81611 Telephone (970) 925-1936 Facsimile (970) 925-3008 BY HAND Ms. Sara Adams Senior Planner City of Aspen 130 South Galena Street Aspen, Colorado 81611 0 • RECEIVED GARFIELD & HECHT, P.C. ATTORNEYS AT LAW Since 1975 www.garfieldhecht.com October 14, 2010 nrT 14 2010 CITY OF ASPEN COMMUNITY DEVELOPMEN i Christopher J. LaCroix Aspen Office clacroixt;,garfield h ech t. com RE: AMENDMENT TO APPLICATION FOR REALLOCATION OF RECONSTRUCTION CREDITS Dear Sara: This letter amends the application dated October 6, 2010 submitted by this office (the "Application") on behalf of Carl E. Gungoll Exploration, LLC, an Oklahoma limited liability company ("Applicant"). Capitalized terms used herein and not defined have the meanings set forth in the Application. Applicant desires to amend that portion of the Application pertaining to the reconstruction credits attributable to the three (3) bedrooms of the Residence. In the Application, Applicant requested that the reconstruction credits attributable to the three (3) bedrooms of the Residence be allocated as follows: (i) one (1) bedroom to Lot 1; and (ii) two (2) bedrooms to Lot 2. At the time the Application was submitted, Applicant incorrectly understood that the reconstruction credits attributable to the three (3) bedrooms of the Residence could not be allocated in increments smaller than one (1) full bedroom. Applicant now understands that the reconstruction credits attributable to the three (3) bedrooms of the Residence can be allocated in increments smaller than one (1) full bedroom. Therefore, Applicant hereby amends the Application by requesting that the reconstruction credits attributable to the three (3) bedrooms of the Residence be allocated as follows: (i) 1.5 bedrooms to Lot 1, and for the purpose of calculating the school lands dedication impact fee, 50% of the student generation rate for 3 bedrooms applicable at the time of building permit submittal to Lot 1; and (ii) 1.5 bedrooms to Lot 2, and for the purpose of calculating the school lands dedication impact fee, 50% of the student generation rate for 3 bedrooms applicable at the time of building permit submittal to Lot 2. Aspen • Avon • Basalt • Glenwood Springs • Rifle ED Printed on recycled paper 0 • GARFIELD & HECHT, P.C. Ms. Sara Adams October 14, 2010 Page 2 Enclosed herewith is a revised draft of the proposed "Reconstruction Credit Allocation Agreement" between Applicant and the City which reflects the amendment of the Application. I prepared to evidence the reallocation of the reconstruction credits in the manner requested by this application. Also enclosed is a redline version of the "Reconstruction Credit Allocation Agreement" marked to show the changes between the amended version and the original that was submitted with the Application. Thank you in advance for your consideration. Please contact me once you have had a chance to review the enclosed materials. Very truly yours, GA LD & HECHT, P.C. By: Chris opher J.J. LaCroix Enclosures Copies via email to: Ramsey W. Drake, II Scott Davidson ® Printed on recycled paper • • RECONSTRUCTION CREDIT ALLOCATION AGREEMENT THIS RECONSTRUCTION CREDIT ALLOCATION AGREEMENT ("Agreement") is made this _day of October 2010 by and between CARL E. GUNGOLL EXPLORATION, LLC, an Oklahoma limited liability company ("Owner") and THE CITY OF ASPEN, COLORADO, a home rule municipality (the "Citv"). RECITALS A. Owner is the owner of certain property in Pitkin County, Colorado legally described as Lot 1, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54 ("Lot 1") and Lot 2, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54 ("Lot 2"). B. Lot 1 is located at 321 W. Bleeker, Aspen, Colorado 81611. C. Lot 2 is located at 323 W. Bleeker, Aspen, Colorado 81611. D. Lot 1 and Lot 2 were created in connection with a Subdivision Exemption approved pursuant to Ordinance 17, Series of 2003 recorded May 14, 2003 at Reception No. 482690 ("Ordinance 17"), and in connection therewith Owner and the City entered into that certain Subdivision Exemption Agreement recorded October 10, 2003 at Reception No. 489618 (the "Subdivision Exemption Agreement"), and Owner recorded the Subdivision Exemption Plat on October 10, 2003 in Plat Book 67 at Page 54 (the "Plat'). E. At the time the Subdivision Exemption Agreement and Plat were recorded, a single family residence existed on the property that became Lot 1 and Lot 2 (the "Residence") and the Residence straddled the property line separating Lot 1 from Lot 2 with a majority of the Residence situated on Lot 2. F. A permit to demolish the Residence was issued in 2008 (the "Demolition Permit') and Owner demolished the Residence pursuant to the Demolition Permit. G. According to the Demolition Permit, the floor area of the Residence was 2,405 square feet and the Residence contained three (3) bedrooms. H. At the time the Residence was demolished, City staff determined to allocate the reconstruction credits arising from demolition of the Residence (i.e., 2,405 square feet and three bedrooms) (the "Reconstruction Credits") entirely to Lot 2 because the majority of the Residence was situated on Lot 2. 1. Owner desires to allocate some of the Reconstruction Credits to Lot 1. Owner and the City desire to enter into this Agreement to allocate the Reconstruction Credits between Lot 1 and Lot 2. NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants contained herein, it is agreed as follows: • • 1. Recitals True and Correct. The Recitals above are true and correct and form a part of this Agreement. 2. Reconstruction Credit Allocation. Owner and the City agree that: (a) The Reconstruction Credits attributable to the 2,405 square feet of floor area of the Residence shall be allocated as follows: (i) 1,202.5 square feet to Lot 1; and (ii) 1,202.5 square feet to Lot 2. (b) The Reconstruction Credits attributable to the three (3) bedrooms of the Residence shall be allocated as follows: (i) 1.5 bedrooms to Lot 1, and for the purpose of calculating the school lands dedication impact fee, 50% of the student generation rate for 3 bedrooms applicable at the time of building permit submittal to Lot 1; and (ii) 1.5 bedrooms to Lot 2, and for the purpose of calculating the school lands dedication impact fee, 50% of the student generation rate for 3 bedrooms applicable at the time of building permit submittal to Lot 2. 3. Miscellaneous. (a) Benefits and Burdens. All provisions contained herein, including the benefits and burdens, run with the land and are binding upon all persons who now or hereafter acquire any interest in Lot 1 or Lot 2, whether as an owner, renter, deed of trust or mortgage beneficiary or otherwise. Each provision contained herein shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any of Lot 1 or Lot 2 is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. (b) Attorney's Fees. In the event any action or proceeding is brought by any party for the enforcement or the attempted enforcement of any of the provisions contained herein, the prevailing party, as determined by the court, in such action or proceeding shall be entitled to recover reasonable attorney's fees, in addition to any other relief to which it may be entitled. (c) Applicable Law. The law applicable hereto and its interpretation shall be that of the State of Colorado (regardless of its choice of law provisions), and any litigation arising out of or concerning this Agreement shall be commenced and maintained in Pitkin County, Colorado, and the parties hereby submit to the personal jurisdiction of Colorado in connection therewith. (d) Severability. Any determination by any court of competent jurisdiction that any provision hereof is invalid or unenforceable shall not affect the validity or enforceability of any of the other provisions hereof. Where any provision hereof is alleged to be or declared by a court of competent jurisdiction to be unconscionable, this document shall automatically be amended by the insertion of a new provision as similar thereto as practicable, but which would not be unconscionable, invalid or unenforceable. 2 (e) Correction Documents. The City and the current and future owners of Lot 1 and Lot 2 shall fully and promptly cooperate to correct any scrivener, clerical or other errors found in any legal descriptions or in any other provisions of this document or any exhibits hereto. (f) Counterparts. This Agreement may be executed in counterparts and, as executed shall constitute one Agreement binding on all of the parties hereto notwithstanding that all said parties are not signatory to the original or same counterpart. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first written above. OWNER: GUNGOLL EXPLORATION, LLC, an Oklahoma limited liability company By: Ramsey W. Drake, II Title: THE CITY: ATTEST: THE CITY OF ASPEN, COLORADO, a home rule municipality Kathryn S. Koch, City Clerk Mick Ireland, Mayor APPROVED AS TO FORM: John Worcester, City Attorney STATE OF ) ) ss. COUNTY OF ) The foregoing Agreement was acknowledged before me this day of 2010 by Ramsey W. Drake, H as (title) of Carl E. Gungoll Exploration, LLC. WITNESS my hand and official seal. My commission expires: Notary Public • • RECONSTRUCTION CREDIT ALLOCATION AGREEMENT THIS RECONSTRUCTION CREDIT ALLOCATION AGREEMENT ("Agreement") is made this _day of October 2010 by and between CARL E. GUNGOLL EXPLORATION, LLC, an Oklahoma limited liability company ("Owner") and THE CITY OF ASPEN, COLORADO, a home rule municipality (the "Citv"). RECITALS A. Owner is the owner of certain property in Pitkin County, Colorado legally described as Lot 1, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54 ("Lot 1") and Lot 2, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54 ("Lot 2"). B. Lot 1 is located at 321 W. Bleeker, Aspen, Colorado 81611. C. Lot 2 is located at 323 W. Bleeker, Aspen, Colorado 81611. D. Lot 1 and Lot 2 were created in connection with a Subdivision Exemption approved pursuant to Ordinance 17, Series of 2003 recorded May 14, 2003 at Reception No. 482690 ("Ordinance 17"), and in connection therewith Owner and the City entered into that certain Subdivision Exemption Agreement recorded October 10, 2003 at Reception No. 489618 (the "Subdivision Exemption Agreement'), and Owner recorded the Subdivision Exemption Plat on October 10, 2003 in Plat Book 67 at Page 54 (the "Plat"). E. At the time the Subdivision Exemption Agreement and Plat were recorded, a single family residence existed on the property that became Lot 1 and Lot 2 (the "Residence") and the Residence straddled the property line separating Lot 1 from Lot 2 with a majority of the Residence situated on Lot 2. F. A permit to demolish the Residence was issued in 2008 (the "Demolition Permit") and Owner demolished the Residence pursuant to the Demolition Permit. G. According to the Demolition Permit, the floor area of the Residence was 2,405 square feet and the Residence contained three (3) bedrooms. H. At the time the Residence was demolished, City staff determined to allocate the reconstruction credits arising from demolition of the Residence (i.e., 2,405 square feet and three bedrooms) (the "Reconstruction Credits") entirely to Lot 2 because the majority of the Residence was situated on Lot 2. I. Owner desires to allocate some of the Reconstruction Credits to Lot 1. J. Owner and the City desire to enter into this Agreement to allocate the Reconstruction Credits between Lot 1 and Lot 2. NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants contained herein, it is agreed as follows: 0 • 1. Recitals True and Correct. The Recitals above are true and correct and form a part of this Agreement. Reconstruction Credit Allocation. Owner and the City agree that: (a) The Reconstruction Credits attributable to the 2,405 square feet of floor area of the Residence shall be allocated as follows: (i) 1,202.5 square feet to Lot 1; and (ii) 1,202.5 square feet to Lot 2. (b) The Reconstruction Credits attributable to the three (3) bedrooms of the Residence shall be allocated as follows: . 181 U I Ursteftw7flaq I U7�K"J1r-JVJM1"M11 I I M.- Miscellaneous. (a) Benefits and Burdens. All provisions contained herein, including the benefits and burdens, run with the land and are binding upon all persons who now or hereafter acquire any interest in Lot 1 or Lot 2, whether as an owner, renter, deed of trust or mortgage beneficiary or otherwise. Each provision contained herein shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any of Lot I or Lot 2 is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. (b) Attorney, 'sue. In the event any action or proceeding is brought by any party for the enforcement or the attempted enforcement of any of the provisions contained herein, the prevailing party, as determined by the court, in such action or proceeding shall be entitled to recover reasonable attorney's fees, in addition to any other relief to which it may be entitled. (c) Applicable Law. The law applicable hereto and its interpretation shall be that of the State of Colorado (regardless of its choice of law provisions), and any litigation arising out of or concerning this Agreement shall be commenced and maintained in Pitkin County, Colorado, and the parties hereby submit to the personal jurisdiction of Colorado in connection therewith. (d) Severability. Any determination by any court of competent jurisdiction that any provision hereof is invalid or unenforceable shall not affect the validity or enforceability of any of the other provisions hereof. Where any provision hereof is alleged to be or declared by a court of competent jurisdiction to be unconscionable, this document shall automatically be amended by the insertion of a new provision as similar thereto as practicable, but which would not be unconscionable, invalid or unenforceable. (e) Correction Documents. The City and the current and future owners of Lot 1 and Lot 2 shall fully and promptly cooperate to correct any scrivener, clerical or other errors found in any legal descriptions or in any other provisions of this document or any exhibits hereto. 2 (f) Counterparts. This Agreement may be executed in counterparts and, as executed shall constitute one Agreement binding on all of the parties hereto notwithstanding that all said parties are not signatory to the original or same counterpart. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first written above. OWNER: GUNGOLL EXPLORATION, LLC, an Oklahoma limited liability company By: Ramsey W. Drake, II Title: THE CITY: ATTEST: THE CITY OF ASPEN, COLORADO, a home rule municipality Kathryn S. Koch, City Clerk Mick Ireland, Mayor APPROVED AS TO FORM: John Worcester, City Attorney STATE OF ) ss. COUNTY OF ) The foregoing Agreement was acknowledged before me this day of 2010 by Ramsey W. Drake, II as (title) of Carl E. Gungoll Exploration, LLC. WITNESS my hand and official seal. My commission expires: Notary Public 3 0 • RECONSTRUCTION CREDIT ALLOCATION AGREEMENT THIS RECONSTRUCTION CREDIT ALLOCATION AGREEMENT ("Agreement") is made this _day of October 2010 by and between CARL E. GUNGOLL EXPLORATION, LLC, an Oklahoma limited liability company ("Owner") and THE CITY OF ASPEN, COLORADO, a home rule municipality (the "City"). RECITALS A. Owner is the owner of certain property in Pitkin County, Colorado legally described as Lot 1, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54 ("Lot 111) and Lot 2, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54 ("Lot 2"). B. Lot 1 is located at 321 W. Bleeker, Aspen, Colorado 81611. C. Lot 2 is located at 323 W. Bleeker, Aspen, Colorado 81611. D. Lot 1 and Lot 2 were created in connection with a Subdivision Exemption approved pursuant to Ordinance 17, Series of 2003 recorded May 14, 2003 at Reception No. 482690 ("Ordinance 17"), and in connection therewith Owner and the City entered into that certain Subdivision Exemption Agreement recorded October 10, 2003 at Reception No. 489618 (the "Subdivision Exemption Agreement'), and Owner recorded the Subdivision Exemption Plat on October 10, 2003 in Plat Book 67 at Page 54 (the "Plat"). E. At the time the Subdivision Exemption Agreement and Plat were recorded, a single family residence existed on the property that became Lot 1 and Lot 2 (the "Residence") and the Residence straddled the property line separating Lot 1 from Lot 2 with a majority of the Residence situated on Lot 2. F. A permit to demolish the Residence was issued in 2008 (the "Demolition Permit") and Owner demolished the Residence pursuant to the Demolition Permit. G. According to the Demolition Permit, the floor area of the Residence was 2,405 square feet and the Residence contained three (3) bedrooms. H. At the time the Residence was demolished, City staff determined to allocate the reconstruction credits arising from demolition of the Residence (i.e., 2,405 square feet and three bedrooms) (the "Reconstruction Credits") entirely to Lot 2 because the majority of the Residence was situated on Lot 2. I. Owner desires to allocate some of the Reconstruction Credits to Lot 1. Owner and the City desire to enter into this Agreement to allocate the Reconstruction Credits between Lot 1 and Lot 2. NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants contained herein, it is agreed as follows: 0 0 1. Recitals True and Correct. The Recitals above are true and correct and form a part of this Agreement. 2. Reconstruction Credit Allocation. Owner and the City agree that: (a) The Reconstruction Credits attributable to the 2,405 square feet of floor area of the Residence shall be allocated as follows: (i) 1,202.5 square feet to Lot 1; and (ii) 1,202.5 square feet to Lot 2. (b) The Reconstruction Credits attributable to the three (3) bedrooms of the Residence shall be allocated as follows: (i) one (1) bedroom to Lot 1; and (ii) two (2) bedrooms to Lot 2. 3. Miscellaneous. (a) Benefits and Burdens. All provisions contained herein, including the benefits and burdens, run with the land and are binding upon all persons who now or hereafter acquire any interest in Lot 1 or Lot 2, whether as an owner, renter, deed of trust or mortgage beneficiary or otherwise. Each provision contained herein shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any of Lot 1 or Lot 2 is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. (b) Attorney's Fees. In the event any action or proceeding is brought by any party for the enforcement or the attempted enforcement of any of the provisions contained herein, the prevailing party, as determined by the court, in such action or proceeding shall be entitled to recover reasonable attorney's fees, in addition to any other relief to which it may be entitled. (c) Applicable Law. The law applicable hereto and its interpretation shall be that of the State of Colorado (regardless of its choice of law provisions), and any litigation arising out of or concerning this Agreement shall be commenced and maintained in Pitkin County, Colorado, and the parties hereby submit to the personal jurisdiction of Colorado in connection therewith. (d) Severability. Any determination by any court of competent jurisdiction that any provision hereof is invalid or unenforceable shall not affect the validity or enforceability of any of the other provisions hereof. Where any provision hereof is alleged to be or declared by a court of competent jurisdiction to be unconscionable, this document shall automatically be amended by the insertion of a new provision as similar thereto as practicable, but which would not be unconscionable, invalid or unenforceable. (e) Correction Documents. The City and the current and future owners of Lot 1 and Lot 2 shall fully and promptly cooperate to correct any scrivener, clerical or other errors found in any legal descriptions or in any other provisions of this document or any exhibits hereto. (f) Counterparts. This Agreement may be executed in counterparts and, as executed shall constitute one Agreement binding on all of the parties hereto notwithstanding that all said parties are not signatory to the original or same counterpart. 2 0 0 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first written above. OWNER: GUNGOLL EXPLORATION, LLC, an Oklahoma limited liability company By: Ramsey W. Drake, II Title: THE CITY: ATTEST: THE CITY OF ASPEN, COLORADO, a home rule municipality Kathryn S. Koch, City Clerk Mick Ireland, Mayor APPROVED AS TO FORM: John Worcester, City Attorney STATE OF ) ) ss. COUNTY OF ) The foregoing Agreement was acknowledged before me this day of 2010 by Ramsey W. Drake, B as (title) of Carl E. Gungoll Exploration, LLC. WITNESS my hand and official seal. My commission expires: Notary Public E • ASPEN OFFICE Victorian Square 601 East Hyman Avenue Aspen, Colorado 81611 Telephone (970) 925-1936 Facsimile (970) 925-3008 BY HAND Ms. Sara Adams Senior Planner City of Aspen 130 South Galena Street Aspen, Colorado 81611 GARFIELD & HECHT, P.C. ATTORNEYS AT LAW Since 1975 www.garfieldhecht.com October 6, 2010 RECEIVED OCT 0 7 2010 CITY OF ASPEN COMMUNITY DEVELOPMENT Christopher J. LaCroix Aspen Office clacroLv@garfieldhecht.com RE: APPLICATION FOR REALLOCATION OF RECONSTRUCTION CREDITS Dear Sara: Carl E. Gungoll Exploration, LLC, an Oklahoma limited liability company ("Applicant"), respectfully submits this letter as its application for an Insubstantial Amendment to a Subdivision Development Order. By this application, Applicant is seeking approval to reallocate the reconstruction credits that were created as a result of the 2008 demolition of a residence (the "Residence") on certain property known as 321 and 323 West Bleeker, Aspen, Colorado 81611 legally described as Lots 1 and 2, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54 (the "Property"). The following information is required by Aspen Land Use Code sections 26.304, and 26.480.080.A: • Name of Applicant: Carl E. Gungoll Exploration, LLC, an Oklahoma limited liability company. • Applicant's address: 6 N.E. 63rd Street, Suite 300, Oklahoma City, OK 73105. Attn: Ramsey W. Drake, II. • Applicant's telephone number: (405) 286-6535. • Name, address and telephone number of representative authorized to act on behalf of Applicant: Chris LaCroix, Garfield & Hecht, P.C., 601 East Hyman Avenue, Aspen, Colorado 81611, tel.: (970) 925-1936, fax: (970) 925-3008. Aspen • Avon • Basalt • Glenwood Springs • Rifle 0 Printed on recycled paper 0 • GARFIELD & HECHT, P.C. Ms. Sara Adams October 6, 2010 Page 2 • Street address of property: 321 and 323 West Bleeker, Aspen, Colorado 81611. • Legal description of Property: Lots 1 and 2, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54. County of Pitkin, State of Colorado. • Parcel identification numbers of Property: 273512441008 (Lot 1) and 273512441009 (Lot 2). According to the demolition permit, when the Residence was demolished, the floor area of the Residence was 2,405 square feet and the Residence contained three (3) bedrooms. City staff determined to allocate all of the reconstruction credits arising from demolition of the Residence (i.e., 2,405 square feet and three bedrooms) entirely to Lot 2 because the majority of the Residence was situated on Lot 2. Applicant respectfully seeks approval to reallocate the reconstruction credits attributable to the 2,405 square feet of floor area of the Residence as follows: (i) 1,202.5 square feet to Lot 1; and (ii) 1,202.5 square feet to Lot 2 and to reallocate the reconstruction credits attributable to the three (3) bedrooms of the Residence as follows: (i) one (1) bedroom to Lot 1; and (ii) two (2) bedrooms to Lot 2. Also enclosed herewith please find the following: (i) A check payable to the Aspen/Pitkin Community Development Department in the amount of $735.00 for the Total Deposit for the review of this application; (ii) Title insurance commitments issued by Pitkin County Title, Inc. showing Applicant as owner of the Property; (iii) City of Aspen Land Use Application Form; (iv) Agreement for Payment of City of Aspen Development Application Fees; (v) The Pre -Application Conference Summary dated 10.05.10; (vi) Letter signed by Applicant authorizing this firm to submit this application; and (vii) A draft of a proposed "Reconstruction Credit Allocation Agreement" between Applicant and the City which I prepared to evidence the reallocation of the reconstruction credits in the manner requested by this application. If this application is approved and the City would prefer to evidence the reallocation of the reconstruction credits in a different manner, please let me know the City's preference and please also let me know if you would like me to prepare a different type of agreement to evidence the reallocation. ® Printed on recycled paper GARFIELD &HECHT, P.C. Ms. Sara Adams October 6, 2010 Page 3 Thank you in advance for your consideration. Please contact me once you have had a chance to review the enclosed materials. Very truly yours, GARYL& HECHT, P.C. By:✓, Christopher J. LaCroix Enclosures Copies via email to: Ramsey W. Drake, II Scott Davidson ® Printed on recycled paper C� • RECEIVhU nCT 07 2010 ATTACHMENT 2 -LAND USE APPLICATION 'ROJECT: CITY OF ASPEN COMMUNITY DEVELOPMENT Name: 41zu G . &Q0w>LL_ C-yiLWA"f IOt� ILLC J i4 o"Lli[ -h04 (jyy k Location: Parcel ID # (REQUIRED) APPLICANT: Name: r4PtU &yaJ 6-bLL e` PLORP'l ION 11C Address: (0 � , e (031'1 ISA c a-� 5-u ac 360 D i ') a�O PYI 0a 615 -7 3 105 Phone #: -AD 5 - a g - 61535 REPRESENTATIVE: Name: Gh(IS cmy / G 4( �te U � ktrc � , P Address: G_ N M~A A b S DC N Co g l6 [ 1 Phone #: c1-7 D , C,2 s ( fl 3 �D TYPE OF APPLICATION: (please check all that apply): ❑ GMQS Exemption ❑ Conceptual PUD ❑ Temporary Use ❑ GMQS Allotment ❑ Final PUD (& PUD Amendment) ❑ Text/Map Amendment ❑ Special Review ❑ Subdivision ❑ Conceptual SPA ❑ ESA - 8040 Greenline, Stream ❑ Subdivision Exemption (includes ❑ Final SPA (& SPA Margin, Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/ Expansion ❑ Residential Design Variance ❑ Lot Line Adjustment Other: ❑ Conditional Use V� S 4,, t � I�MLA� Mtn� � D WV. 09 r2 EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc. N PROPOSAL: (description of proposed bui etc. R"OyAbc4h04\ (�--\ WLoi\Sk(UJR01r\ CMILL f �Ny CTose- as a 3-efilk &Mb[r (Gl\ ff 5 1 6-A(k t:-, 200 9 Have you attached the following? FEES DUE: S '13 5- Pre-Application Conference Summary �] Attachment #1, Signed Fee Agreement ] Response to Attachment #3, Dimensional Requirements Form N/A ] Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards )'JA ] 3-D Model for large project N/f� All plans that are larger than 8.5 X 11" must be folded. A disk with an electric copy of all written text ;Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre -application conference summary will indicate if you must submit a 3-D model. • • Ms. Sara Adams Senior Planner City of Aspen 130 South Galena Street Aspen, Colorado 81611 Dear Ms. Adams, CARL E. GUNGOLL EXPLORATION, LLC 6 N.E. 63`d Street, Suite 300 Oklahoma City, OK 73105 October 6, 2010 On behalf of Carl E. Gungoll Exploration, LLC, an Oklahoma limited liability company ("Gungoll Exploration"), please accept the enclosed land use application seeking City of Aspen approval to reallocate certain reconstruction credits that arose in connection with the demolition of a residence on Gungoll Exploration's property known as 321 and 323 West Bleeker, Aspen, Colorado 81611, legally described as Lots 1 and 2, Ruth Whyte Lot Split Subdivision Exemption Plat, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54. Gungoll Exploration's representative in this matter is our attorney, Christopher LaCroix, Garfield & Hecht, P.C., 601 E. Hyman Avenue, Aspen, CO 81611. You may reach him at (970) 925-1936. Sincerely, Carl E. Gungoll Exploration, LLC By: Ra sey W. Drake, II RECEIVED OCT 0 7 2010 CITY OF ASPEN COMMUNITY DEVELOPMENT CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT Agreement for Payment of City of Aspen Development Application Fees CITY OF ASPEN (hereinafter CITY) and tAf f _E . CsUrtS a 1k � D fo fZ�lJ n LL_ (hereinafter APPLICANT) AGREE AS FOLLOWS: 1. APPLICANT has submitted to CITY an ap lication for Rclllo ('Oy1 of 9 (ons�rvckt0A Gr-f- :.s (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that the City of Aspen has an adopted fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. -APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent 'of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to enable the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of ap lication completeness, APPLICANT shall pay an initial deposit in the amount of $ %35 which is for(P _ hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review at a rate of $245.00 per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date, APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN By: Chris Bendon Community Development Director APPLICANT P Uri,E. CTO�J(s LlrCI�t_ORF1'(to(J LI.0 By; r Date: O C+06er (o Billing Address and Telephone Number: 13 •� . ,,S�} S•�t-e&, Su.kc 300 M C C 0 H5• a86 515 0 0 RECEIVED CITY OF ASPEN nCT 0 7 2010 PRE -APPLICATION CONFERENCE SUMMARY CITY OF ASPEN PLANNER: Sara Adams DATE: 10:oorTy DEVELOPMENT PROJECT: 321/323 W. Bleeker Street REPRESENTATIVE: Chris LaCroix, Garfield & Hecht, P.C. (970) 925-1936 x204 DESCRIPTION: The subject properties, 321 and 323 West Bleeker, comprise lots 1 and 2 of the Ruth Whyte Lot Split which was approved by City Council via Ordinance 17 of 2003. At the time of the subdivision exemption approval, an existing home straddled the newly created lot line with the majority of the home situated on newly created lot 2. A demolition permit was issued in 2008. The demolition permit, listed under the address 323 West Bleeker Street, documents that the existing FAR of the single family home was 2,405 square feet and calculates 3 existing bedrooms. Community Development determined that currently all of the reconstruction credits are applied to lot 2 upon which the majority of the demolished house was located. The potential applicant would like to divide the reconstruction credits, both the square footage credits and the bedroom credits, between lots 1 and 2 of the Ruth Whyte Lot Split. Ordinance 17, of 2003 does not specify the division of the credits; therefore, an insubstantial amendment to the Ordinance is required to divide the credits between the two lots. An insubstantial amendment to the subdivision approval is an administrative review by Community Development staff. In addition to the requirements listed below, the application must include the methodology for dividing the credits; specifically the bedroom credits to confirm that the appropriate School Land Dedication fees for both lots are accurately collected when the new residences are constructed. Relevant Land Use Code Section(s): 26.304, Common Development Review Procedures 26.480.080.A Insubstantial Amendment to subdivision development order Review by: Staff. Public Hearing: No. Referral Agencies: n/a Planning Fees: $735 deposit for 3 hours (additional hours billed at $245 per hour). Referral Agency Fees: $0. Total Deposit: $735. Total Number of Application Copies: 2 To apply, submit the following information: ❑ Total deposit for review of application. ❑ Proof of ownership with payment. ❑ Signed fee agreement. ❑ Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. ❑ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing COMMITMENT FOR TITLE INSURANCE SCHEDULE A 1. Effective Date: September 10, 2010 at 8:00 AM 2. Policy or Policies to be issued: (a) ALTA Owner's Policy-(6/17/06) Proposed Insured: (b) ALTA Loan Policy-(6/17/06) Proposed Insured: (c) ALTA Loan Policy-(6/17/06) Proposed Insured: Case No. PCT22961 F Amount$ Premium$ Rate: Re -Issue Amount$ 0.00 Premium$ 0.00 Rate: Amount$ Premium$ Rate: 3. Title to the FEE SIMPLE estate or interest in the land described or referred to in this Commitment is at the effective date hereof vested in: CARL E. GUNGOLL EXPLORATION, LLC, AN OKLAHOMA LIMITED LIABILITY COMPANY 4. The land referred to in this Commitment is situated in the County of PITKIN State of COLORADO and is described as follows: LOT 1, RUTH WHYTE LOT SPLIT SUBDIVISION EXEMPTION PLAT, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54. PITKIN COUNTY TITLE, INC. 601 E. HOPKINS, ASPEN, CO. 81611 970-925-1766 Phone/970-925-6527 Fax 877-217-3158 Toll Free AUTHORIZED AGENT Countersigned: ��EOMV_1_00_ , Schedule A-PG.1 This Commitment is invalid unless the Insuring Provisions and Schedules A and B are attached. • • SCHEDULE B - SECTION 1 REQUIREMENTS The following are the requirements to be complied with: ITEM (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. ITEM (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record to -wit: Partial Release by the Public Trustee of the, Deed of Trust from : MARSHALL W. WEIR and CARL E. GUNGOLL EXPLORATION, LLC A OKLAHOMA LIMITED LIABILITY COMPANY to the Public Trustee of the County of PITKIN for the use of MIDFIRST BANK original amount : $2,510,000.00 dated January 16, 2004 recorded : January 21, 2004 reception no. 493680 Modifications of Deed of Trust recorded April 7, 2006 as Reception No. 522700 and May 12, 2006 as Reception No. 523995. Partial Release by the Public Trustee of the: Deed of Trust from: CARL E. GUNGOLL EXPLORATION, LLC, AN OKLAHOMA LIMITED LIABILITY COMPANY to the Public Trustee of the County of PITKIN for the use of :MIDFIRST BANK to secure $11,202,000.00 dated April 30, 2008 recorded May 16, 2008 reception :549236 Amendment to Deed of Trust recorded February 24, 2010 as Reception No. 567192. NOTE: THE ABOVE DEED OF TRUST ORIGINALLY ENCUMBERED "LOTS H AND I, BLOCK 44, CITY AND TOWNSITE OF ASPEN". AMENDMENT RECORDED AS RECEPTION NO. 567192 HAS LEGAL ATTACHED AS LOTS 1 AND 2, RUTH WHYTE LOT SPLIT SUBDIVISION EXEMPTION PLAT. THE COMPANY IS IN CONTACT WITH THE LENDER TO RECTIFY THIS. A PARTIAL RELEASE MAY BE OBTAINED OR THE LENDER MAY BE RECORDING A "CORRECTED AMENDMENT". (Continued) • C� SCHEDULE B - SECTION 1 REQUIREMENTS - Continued 3. Copy of the Registration duly stamped by the Secretary of State of the State of Oaklahoma evidencing registration of CARL E. GUNGOLL EXPLORATION, LLC and Operating Agreement of CARL E. GUNGOLL EXPLORATION, LLC evidencing the names and addresses of the Members and/or Managers authorized to act on behalf of said Limited Liability Company. 4. Duly executed and acknowledged Deed, From : CARL E. GUNGOLL EXPLORATION, LLC, AN OKLAHOMA LIMITED LIABILITY COMPANY To A Statement of Authority was recorded for CARL E. GUNGOLL EXPLORATION, LLC, AN OKLAHOMA LIMITED LIABILITY COMPANY on January 17, 2006 as Reception No. 519811, evidencing that ANDREW HUNZICKER is the authorized person to bind the transaction contemplated herein. 5. Evidence satisfactory to the Company that the Real Estate Transfer Tax as established by Ordinance No. 20 (Series of 1979) and Ordinance No. 13 (Series of 1990) has been paid or exempted. 6. Certificate of nonforeign status executed by the transferor(s). (This instrument is not required to be recorded) 7. Completion of Form DR 1083 regarding the withholding of Colorado Tax on the sale by certain persons, corporations and firms selling Real Property in the State of Colorado. (This instrument is not required to be recorded) 8. Evidence satisfactory to the Company that the Declaration of Sale, Notice to County Assessor as required by H.B. 1288 has been complied with. (This instrument is not required to be recorded, but must be delivered to and retained by the Assessors Office in the County in which the property is situated) 0 s SCHEDULE B SECTION 2 EXCEPTIONS The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes due and payable; and any tax, special assessment, charge or lien imposed for water or sewer service or for any other special taxing district. 7. Reservations and exceptions as set forth in the Deeds from the City of Aspen recorded in Book 59 at Page 121 and Book 59 at Page 412, providing as follows: "That no title shall be hereby acquired to any mine of gold, silver, cinnabar or copper or to any valid mining claim or possession held under existing laws". 8. Terms, conditions, provisions, obligations and all matters as set forth in Ordinance No. 17, Series of 2003 by City of Aspen recorded May 14, 2003 as Reception No. 482690. 9. Terms, conditions, provisions and obligations as set forth in Revocable Encroachment License recorded October 8, 2003 as Reception No. 489527. 10. Terms, conditions, provisions and obligations as set forth in Subdivision Exemption Agreement recorded October 10, 2003 as Reception No. 489618. 11. Easements, rights of way and all matters as disclosed on Plat of subject property recorded October 10, 2003 in Plat Book 67 at Page 54. 0 • COMMITMENT FOR TITLE INSURANCE SCHEDULE A 1. Effective Date: September 10, 2010 at 8:00 AM 2. Policy or Policies to be issued: (a) ALTA Owner's Policy-(6/17/06) Proposed Insured: (b) ALTA Loan Policy-(6/17/06) Proposed Insured: (c) ALTA Loan Policy-(6/17/06) Proposed Insured: Case No. PCT22964F Amount$ Premium$ Rate: Re -Issue Amount$ 0.00 Premium$ 0.00 Rate: Amount$ Premium$ Rate: 3. Title to the FEE SIMPLE estate or interest in the land described or referred to in this Commitment is at the effective date hereof vested in: CARL E. GUNGOLL EXPLORATION, LLC, AN OKLAHOMA LIMITED LIABILITY COMPANY 4. The land referred to in this Commitment is situated in the County of PITKIN State of COLORADO and is described as follows: LOT 2, RUTH WHYTE LOT SPLIT SUBDIVISION EXEMPTION PLAT, according to the Plat recorded October 10, 2003 in Plat Book 67 at Page 54. PITKIN COUNTY TITLE, INC. 601 E. HOPKINS, ASPEN, CO. 81611 970-925-1766 Phone/970-925-6527 Fax 877-217-3158 Toll Free AUTHORIZED AGENT Countersigned: Schedule A-PG.1 This Commitment is invalid unless the Insuring Provisions and Schedules A and B are attached. 0 E SCHEDULE B - SECTION 1 REQUIREMENTS The following are the requirements to be complied with: ITEM (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. ITEM (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record to -wit: Partial Release by the Public Trustee of the, Deed of Trust from : MARSHALL W. WEIR and CARL E. GUNGOLL EXPLORATION, LLC A OKLAHOMA LIMITED LIABILITY COMPANY to the Public Trustee of the County of PITKIN for the use of MIDFIRST BANK original amount $2,510,000.00 dated January 16, 2004 recorded : January 21, 2004 reception no. : 493680 Modifications of Deed of Trust recorded April 7, 2006 as Reception No. 522700 and May 12, 2006 as Reception No. 523995. Partial Release by the Public Trustee of the: Deed of Trust from: CARL E. GUNGOLL EXPLORATION, LLC, AN OKLAHOMA LIMITED LIABILITY COMPANY to the Public Trustee of the County of PITKIN for the use of :MIDFIRST BANK to secure $11,202,000.00 dated April 30, 2008 recorded May 16, 2008 reception :549236 Amendment to Deed of Trust recorded February 24, 2010 as Reception No. 567192. NOTE: THE ABOVE DEED OF TRUST ORIGINALLY ENCUMBERED "LOTS H AND I, BLOCK 44, CITY AND TOWNSITE OF ASPEN". AMENDMENT RECORDED AS RECEPTION NO. 567192 HAS LEGAL ATTACHED AS LOTS 1 AND 2, RUTH WHYTE LOT SPLIT SUBDIVISION EXEMPTION PLAT. THE COMPANY IS IN CONTACT WITH THE LENDER TO RECTIFY THIS. A PARTIAL RELEASE MAY BE OBTAINED OR THE LENDER MAY BE RECORDING A "CORRECTED AMENDMENT'. (Continued) 0 • SCHEDULE B - SECTION 1 REQUIREMENTS - Continued 3. Copy of the Registration duly stamped by the Secretary of State of the State of Oaklahoma evidencing registration of CARL E. GUNGOLL EXPLORATION, LLC and Operating Agreement of CARL E. GUNGOLL EXPLORATION, LLC evidencing the names and addresses of the Members and/or Managers authorized to act on behalf of said Limited Liability Company. 4. Duly executed and acknowledged Deed, From : CARL E. GUNGOLL EXPLORATION, LLC, AN OKLAHOMA LIMITED LIABILITY COMPANY To : ,� A Statement of Authority was recorded for CARL E. GUNGOLL EXPLORATION, LLC, AN OKLAHOMA LIMITED LIABILITY COMPANY on January 17, 2006 as Reception No. 519811, evidencing that ANDREW HUNZICKER is the authorized person to bind the transaction contemplated herein. 5. Evidence satisfactory to the Company that the Real Estate Transfer Tax as established by Ordinance No. 20 (Series of 1979) and Ordinance No. 13 (Series of 1990) has been paid or exempted. 6. Certificate of nonforeign status executed by the transferor(s). (This instrument is not required to be recorded) 7. Completion of Form DR 1083 regarding the withholding of Colorado Tax on the sale by certain persons, corporations and firms selling Real Property in the State of Colorado. (This instrument is not required to be recorded) 8. Evidence satisfactory to the Company that the Declaration of Sale, Notice to County Assessor as required by H.B. 1288 has been complied with. (This instrument is not required to be recorded, but must be delivered to and retained by the Assessors Office in the County in which the property is situated) i SCHEDULE B SECTION 2 EXCEPTIONS The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes due and payable; and any tax, special assessment, charge or lien imposed for water or sewer service or for any other special taxing district. 7. Reservations and exceptions as set forth in the Deeds from the City of Aspen recorded in Book 59 at Page 121 and Book 59 at Page 412, providing as follows: "That no title shall be hereby acquired to any mine of gold, silver, cinnabar or copper or to any valid mining claim or possession held under existing laws". 8. Terms, conditions, provisions, obligations and all matters as set forth in Ordinance No. 17, Series of 2003 by City of Aspen recorded May 14, 2003 as Reception No. 482690. 9. Terms, conditions, provisions and obligations as set forth in Revocable Encroachment License recorded October 8, 2003 as Reception No. 489527. 10. Terms, conditions, provisions and obligations as set forth in Subdivision Exemption Agreement recorded October 10, 2003 as Reception No. 489618. 11. Easements, rights of way and all matters as disclosed on Plat of subject property recorded October 10, 2003 in Plat Book 67 at Page 54.