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Home My WebLink AboutLand Use Case.190 Park Ave.0069.2011.ASLU0069.2011.ASLU 2723 18 1 07 009 190 PARK AVE RESIDENTIAL DESIGN VARIANCE ~ /Qto'.,Al-1 P J. R --- 1 External Media Located Here ~ M-001139 .. THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0069.2011.ASLU PARCEL ID NUMBERS 2723 181 07 009 PROJECTS ADDRESS 190 PARK AVE PLANNER JESSICA GARROW CASE DESCRIPTION RESIDENTAL DESIGN VARIANCE REPRESENTATIVE ZALE MILTON DATE OF FINAL ACTION 12.2.11 CLOSED BY ANGELA SCOREY ON: 9.4.12 .. DEVELOPMENT ORDER ofthe City of Aspen Community Development Department 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-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 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. Milton & Nina Zale, c/o The Zale Company, 3824 N. Ashland Ave., Chicago, IL 60613 Property Owner's Name, Mailing Address Lots 6 & 9, Promontory Subdivision, Aspen, CO; commonly known as 190 Park Ave Legal Description and Street Address of Subject Property Residential Design Standard Variances for windows in the 9'-12' range and for carport location Written Description of the Site Specific Plan and/or Attachment Describing Plan Approval by the City of Aspen Community Development Department for two Residential Design Standards Variances; received 10/31/11 and signed for approval 11/30/11 Land Use Approval(s) Received and Dates (Attach Final Ordinances or Resolutions) December 11,2011 Effective Date of Development Order (Same as date of publication of notice ofapproval.) December 11,2014 Expiration Date of Development Order (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 3~th day of November, 2011, by the City of Aspen Community Development D,rectorf j ~ 0 Chris Bendon, Community Development Director 0/\1\ acip I .. AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.070 AND CHAPTER 26.306 ASPEN LAND USE CODE ADDRESS OF PROPERTY: 1 90 L-lc- A-wt , Aspen, CO STATE OF COLORADO ) ) SS. County of Pitkin ) I, 691=14 9 ocr-o-~~ (name, please print) being or rep&senting 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 (IE) of the Aspen Land Use Code in the following manner: V~ 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 at least fourteen (14) days after final approval of a site specific development plan. A copy of the publication is attached hereto. Publication ofnotice: 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 before me this E day of Deâ‚¬- , 201-L, by .,4-nh-ath f*/ - .#A WITNESS MY HAND AN-D OFFICIAL SEAL ~~ -.Aliâ‚¬Joe/ # M*commission expires: 3 -79 -(4 44 4-) *I I- I: * 4, Â£,i*$53, al, 0--on Ex** em24914 Notary Public PL,LIC NOTICE 'Of DEVELO.?MENT APPROVAL , Notice is hereby gi),0 to the general public of the i approval of a site specific development plan, and the creation of a vested property right pursuant to the Land Use Code of the City of Aspen and Title ATTACHMENTS: ing to the following legally described property: Lots 24, Article 68, Colorado Revised Statutes, pertain- 6 & 9 of the Promontory Subdivision, Aspen, CO, COPY OF THE PUBLICATION the property commonly known as 190 Park Ave by order of the City of Aspen Community Develop- ment Department on November 16, 2009. The Ap- plicant received approval for two Residential De- sign Standard Variances related to the construction of an existing home. For further information con- tact Jessica Garrow, at the City of Aspen Commu- nity Development Dept. 130 S. Galena St, Aspen, Colorado (970) 429-2780. sl City ot Aspen Publish in The Aspen Times Week/y on December 8,2011 [7314166] RECEPTION#: 585301, 1~22/2011 at 11:24:50 AM, 1 OF 5, R $31.00 Doc Code APPROVAL Janice K. Vos Caudill, Pitkin County, CO NOTICE OF APPROVAL For Two Residential Design Standard Variances at 190 Park Avenue, legally described as Lots 6 and 9, Promontory Subdivision, Aspen, CO Parcel ID No. 2737 1810 7009 APPLICANT: Milton & Nina Zale REPRESENTATIVE: Gilbert Sanchez, Studio B Architects SUBJECT & SITE OF AMENDMENT: Residential Design Standard Variance for Lots 6 & 9 of the Promontory Subdivision, commonly known as 190 Park Ave, involving the construction of a new single-family house. SUMMARY: The Applicant has requested two Residential Design Standard Variances related to the construction of a new single family home. The property has been the subject of litigation, and is subject to a settlement agreement limiting the new house to a single story in height. The applicant is requesting a variance to the following code sections: "The front Jugade of the garage or the front-most supporting column of a carport shall be set back at least ten (10) Ret further from the street than the front-most wall ofthe house." (Section 26.410.040.C.2.b) "Street facing windows shall not span through the area -where a second floor would typically exist, which is between nine (9) and twelve (12) feet above the finished floor. For interior staircases, this measurement will be made from the first landing if one exists. A transom window above the main entry is exempt from this standard," (Section 26.410.040. D.3.a, Windows) STAFF EVALUATION: Staff supports the proposed variances for 190 Park Ave. The proposed building is a raised one-story structure on a sloped lot. A carport is located under the raised living area. The living area includes windows that span the entire story, resulting in them spanning the 9' - 12' "no window" zone. Staff finds that the variances are appropriate based on site constraints. Per the settlement agreement, the building is limited to one-story in height. The design is clearly a raised one-story building with a carport below the living area. Because of the slopes and the Page IOF E .. height restriction, the placement of a carport or garage is constrained. Staff finds that given these constraints the design is appropriate. The window standard is intended to promote pedestrian-scale development by limiting very large windows that span between stories. This building is only one story in height, and the design reads as such. Staff finds that given these constraints the design is appropriate. DECISION: The Community Development Director finds the Residential Design Standard Variance remodel the home as noted above and on Exhibit 'A' to be consistent with the review criteria (Exhibit B) and thereby, APPROVES the variance as specified below. The approved variance to 190 Park Ave, allows for the construction of windows within the 9-12 foot "no window" zone and carport located under living space, as depicted in Exhibit A. APPROVED BY: 11[ 'do FOR Chris Bendon Date Community Development Director Attachments: Exhibit A - Approved Plans Exhibit B - Review Standards page 2 4 6 -j, M INZR&- lee --<AMMik X /Â« . =Â¥31- f.,9 Â· . Â·irm wilk t. f t:. 0,7Â·,mrâ€¢ Â¥mm=m-,mâ€¢m,r.~ . 454&~Fi-Â·r~- .L.AES - 4~Wk - Â·v 42, M IR" -78 1'!9;1,1.mmm,1 -4 W.kbglpopY .- - + . I - I . 4,211: i,..1 111~112Â·11. !lili 11 1 - , ,â‚¬.i, 11!~!1~i; ,1111,1 $1.Ll ~ 11 r -/,4't.v, d 4.i i .p#11 ~!111111 -illi'jd i , A lim' 7/ All! "" LiÂ·:11;jÂ·f ,;~41Â£~~bl~l ~ i ;, 1 lit 1-- 11 , 4 Will - 6 LEi! 1 .: â‚¬1~ Â·- 4'5 -,4-L WHIC/--LD-ZE'/W-VA.Â· #Â¢4' ~314Â·11Â©r . ( - , C-' - .aâ€že;.20*,4~ 190 PARK AVENUE STREET VIEW ..im-a architects .4 I ErA~i'bilÂ· A 9,02*41 T f T l-ft T ~T 1 =:St'~~ $/6. 'i -1- 1 lili -- ,li-_-_fi:uww#"met, note"'tree'*411"tuy'!464â‚¬Ii,~cl.,.... U.1 1/ I .- 0 1.U g Z U-1 A -T 7 - 7:7 - r'U t *LiV~â‚¬0Â·Ir'~HD 4ktlte~&91,Â· --i. Cne LL.1 EVE Â¢ ~ ' mIRNm:1:~171--'-- 'te~0<11.Â£*flija<* - - =-~9-179-~Â· ~ 0 CK R < 1 1 ~ TRUE LIVING WEST ELEVATION SCALE .6.'I la.1 0 .2 f 41 1 - â‚¬E 3 /-- k 6 /1,0,1*,nouth,Int:**ntÂ¢1*m*th"Am% - - 4:=11. . 21 â€¢rrm. 1 1 L L. m *= ....... 2-1 44 -ac=. | |~ ~L ~ 7 11 1 -9-2 94 - ' L -1 7 OOPROGAESSSET=M' SOCOMPLETE.#1 DDPâ„¢014E. 5ET.-=Oil â‚¬- R..3-- 9~ja-,Dil -. L 4/ *. 37 ELEVATIONS S---'. (2)TRUE GUEST WING WEST ELEVATION /3hTRUE ENTRY WEST ELEVATION A3.1 ( j ...:3/16--// M=. /..121Â»C*.Â¥'m.,<*E-.3~~Ou*th,k M5 /. 1~012:~NON %AdelallÂ»â‚¬0~Vg~OA.AU# LAN3~Qvd ~6 1 9 lah@&2 .. Exhibit B Review Criteria and Staff Findings Residential Design Standards Variance: Sec. 26.410.020.D Administrative Variance, if granted, would: 1. Provide an appropriate design or pattern Of development considering the context in which the development is proposed and the purpose of the particular standard. The proposed variance is minimal in nature and will not negatively impact the surrounding context on the site. Staff finds the proposal is consistent with the existing context. 1. Be clearly necessary for reasons of fairness related to unusual site-specific constraints The applicant is working atypical site constraints given the steep slopes and settlement agreement limiting height to one-story. Staff finds that the proposed variances are necessary due to these unusual site-specific constraints. Page 545 .. March 20, 2012 Chris Bendon Community Development Director City of Aspen Hand Delivered RE: Approval of Residential Design Standard Variance for 190 Park Ave., dated November 30, 2011 Dear Mr. Bendon: We are the neighbors behind and adjacent to 190 Park Ave. This lot has been the subject of litigation for 6 years that currently does not involve the city. However, we have just discovered that the city has issued an approval of two Residential Design Standard Variances without a public hearing. We are aware the city may do this but surely not using false information to circumvent Review Standards. Clearly you were not given the facts, and, to make it worse, based on the wording chosen, your variance approval may now be used by the applicant, Mr. Zale, as an official opinion in the ongoing litigation over the one story restriction, which will bring the city into the case if that occurs. Also disappointing to us is the fact that the Zales have full knowledge regarding their "one story" restriction and knew your issued Variance stated misinformation regarding legal status and settlement terms. Despite the errors they chose to use it as a public notice on their deed by recording it on title. As background, we have been involved in the lawsuit over this property for the last 6 years as a consequence of Mr. Zale not adhering to the restrictions burdening his lot. We suffered significant financial and physical damages in 2007 during the construction of Mr. Zale's retaining wall that trespassed into the Rodell property. This damage occurred in spite of our notification of the city that the plans appeared to encroach on our property and our concern that insufficient stabilization research had been done. For your information, these damages were reimbursed by our own insurance companies - not Mr. Zale. We do not want to see a repeat of that travesty. We have settled with Mr. Zale for all but one of our claims against him. That claim concerns the one story restriction. We therefore, have a significant interest in what happens with the construction of his new house and reason to insist on accurate representation of our settlement agreement with Mr. Zale. We saw folks on the 190 Park property recently, so checked into activity recorded on his lot and inquired after the file at your office. We were surprised to discover the attached variance approval recorded on his property. It was odd that it was March 20,2012 1 .. actually recorded against his deed, which is not a normal practice, and equally odd that when we requested the file at the city it was not part of the file even though it is dated November 30, 2011. In addition, the wording o f the approval is curious, given the history of the lawsuit. Your approval document states: / Per the settlement agreement, the building is limited to one-story in height." That statement is completely false and is repeated several times in your approval. The referenced settlement agreement is attached. While there are several agreed upon restrictions in the settlement agreement, there is no "one story in height" restriction. The height restriction agreed to in the settlement agreement (5.a) is: "THE HEIGHT OF ANY STRUCTURE ON THE ZALE PROPERTY SHALL BE DEFINED BY A MAXIMUM ELEVATION, NOT TO EXCEED 7967 FEET IN ELEVATION AT THE HIGHEST POINT OF ANY ROOF RIDGE (EXCLUDING CHIMNEYS), AS DETERMINED FROM A NVAD88 ELEVATION OF 7963.13 FEET ON THE TOP OF REBAR & CAP LS#19598 MONUMENTING THE NORTHEAST CORNER OF SAID ZALE PROPERTY." Note that it does not mention anything about being limited to one story. You also conclude on page 2 of your approval: "The building is only one story in height, and the design reads as such." What does "one story in height" mean? Does the city have regulations limiting the height of a story? Regardless, "one story in height" is clearly irrelevant based on the language of the settlement agreement. There is a separate one story restriction currently burdening 190 Park, which is unrelated to the height restriction and which has not yet been settled in the courts. This "one story" restriction is explicitly excluded from the settlement agreement (pg 1,C.): "This Agreement is not intended to and does not settle the One Story Restriction claim." That claim is still in the courts and pending a decision by the Colorado Supreme Court on whether to hear Zale's appeal. There are three separate orders from Pitkin County District Court and the Colorado Court of Appeals regarding the validity of the one story restriction burdening the lot. The Court of Appeals decision is attached. Zale has actually now appealed the ruling three times to have the one story restriction removed from his property. In other words, if your ruling is based on his house being restricted to one story, then it is premature because he is still trying to have the courts remove the restriction from his property. And your statement that he is restricted to "one story in height" based on the settlement agreement is totally false. March 20,2012 2 .. Finally, you have issued the opinion that it is in fact a one story building. All we have seen are conceptual drawings rather than full plans, and we cannot reach that conclusion without the full plans. From the drafts we cannot tell if there is a true carport, or it is a garage waiting for a door enclosure, or it is a future window wall enclosing the "carport" creating a two story building. Last fall when we were shown draft conceptual drawings, we requested written confirmation that this area would not be enclosed in the future and received no reply. Please send us the design documents that allow you to conclude that it is truly only one story. Based on the above, we request that you reconsider if the variance was properly issued. If you believe that it was properly issued, we request that you issue a corrected approval to remove the following false statements: On Page 1, NOTICE OF APPROVAL Under SUMMARY: And is subject to a settlement agreement limiting the new house to a single story in height." Under STAFF EVALUTION: "Per the settlement agreement, the building is limited to one-story in height." Exhibit B: Paragraph 2, 2rld half of 1St sentence: "and settlement agreement limiting height to one story." We also request that you provide us with a copy of all supporting documents for your decision. Thank you for your prompt attention to this matter. S~~rely, Manprle Roaell and Colleen Grosz 201 Midland Ave 211 Midland Ave Aspen, CO Aspen, CO mrodell@comcast.net cg@premierinvest.net cc Lance Cote Klein, Cote and Edwards 1rc@kcelaw.net Attachments: a. NOTICE of APPROVAL 2 design variances for 190 Park Ave (November 30, 2011) b. Settlement Agreement Among Grosz, Rodell and Zale (June 30,2009) c. One Story Appellate Opinion (August 11, 2011) March 20,2012 3 RECEPTION#: 585301,-12/22/2011 at 11:24:50 AM, 1 OF 5, R ~1.00 Janice K. Vos Cau/l- Pitkin County, CO . A-40'hiÂ© k i . -- NOTICE OF APPROVAL For Two Residential Design Standard Variances at 190 Park Avenue, legally described as Lots 6 and 9, Promontory Subdivision, Aspen, CO Parcel ID No. 2737 1810 7009 APPLICANT: Milton & Nina Zale REPRESENTATIVE: Gilbert Sanchez, Studio B Architects SUBJECT & SITE OF AMENDMENT: Residential Design Standard Variance for Lots 6&9 ofthe Promontory Subdivision, commonly known as 190 Park Ave, involving the construction of a new single-family house. SUMMARY: The Applicant has requested two Residential Design Standard Variances related to the construction of a new single family home. The property has been the subject of litigation, and is subject to a settlement agreement limiting the new house to a single story in height. The applicant is requesting a variance to the following code sections: "The front fa,ade of the garage or the front-most supporting column of a carport shall be set back at least ten (10) feet further from the street than the front-most wall of the house." (Section 26.410.040.C.2.b) "Street facinz windows shall not span through the area where a second floor would tvpicallv exist, which is between nine (9) and twelve (12) feet above the finished floor. For interior staircases, this measurement will be made from the jirst landing if one exists. A transom window above the main entry is exempt from this standard." (Section 26.410.040.D.3.a, Windows) STAFF EVALUATION: Staff supports the proposed variances for 190 Park Ave. The proposed building is a raised one-story structure on a sloped lot. A carport is located under the raised living area, The living area includes windows that span the entire story, resulting in them spanning the 9' - 12 , â€ž no window" zone. Staff finds that the variances are appropriate based on site constraints. Per the settlement agreement, the building is limited to one-story in height. The design is clearly a raised one-story building with a carport below the living area. Because of the slopes and the Page|OF E RECEPTION#: 585301,-&&/22/2011 at 11:24:50 AM, 2 OF 5, Janice K. Vos Caudi~Pitkin County, CO . height restriction, the placement of a carport or garage is constrained. Staff finds that given these constraints the design is appropriate. The window standard is intended to promote pedestrian-scale development by limiting very large windows that span between stories. This building is only one story in height, and the design reads as such. Staff finds that given these constraints the design is appropriate. DECISION: The Community Development Director finds the Residential Design Standard i' Variance remodel the home as noted above and on Exhibit 'A' to be consistent with the review criteria (Exhibit B) and thereby, APPROVES the variance as specified below. The approved variance to 190 Park Ave, allows for the construction of windows within the 9-12 foot "no window" zone and carport located under living space, as depicted in Exhibit A. APPROVED BY: 0Â»Vd- G 30 gal Chris Bendon bate Community Development Director Attachments: Exhibit A - Approved Plans Exhibit B - Review Standards page 246 RECEPTION#: 585301, -62/22/2011 at 11:24:50 AM, 3 OF 5, Janice K. Vos Caudi~Pitkin County, CO . ED**MA A .: ?,2' 1 1 42 Lu . 0 1.1.1 CE r 00 LU i Z LU 4%5 . <C 1314 .1 2 <C 0- 0 0 Â·r- Urld 6 S loh@k 1 -5 *4 9 - df - hi- - Â«3 -r 9/ -r:Ul - 11'F t---â‚¬ 1 =I - - -ne ihz[-~_ 1 : --1.----0 rÂ· 13 - 1 " 1 f ?t B' 0 F 18<4- . -e r'<L I-- t =Â»-<2 L-/ - L.. 1 _ ,~ 0 0 *vqI[T-- 11 -1 1 -u M /1 F 4..-, !1 1-4--44 ii 1 1 af + Ii, 1 1 1 5 , 11~ f FiT Ill"Imillim0 ZALE RESIDNECE lic.110't. 190 PARK AVENUE A ifii ASPEN, CO 81611 44!41.WEI . 00 'Aunoo u-viG-Fd~neD soA -7 eoruer '5 60 P 'WV 05:VE II 48 TIOE/ZZ/~f"IOESBS :#NOI.LdSOEIN NOL1Â¥A3Â·I3 19%M 4N3 2~0:(1) N0UVA313 iS2M INI ilind ;r=G) ......1 *,1.<r'.4..liiyi=7== RECEPTION#: 585301,1a/22/2011 at 11:24:50 AM, 5 OF 5, Janice K. Vos Caudi~Pitkin County, CO ~ I . Exhibit B Review Criteria and Staff Findings Residential Design Standards Variance: Sec. 26.410.020.D Administrative Variance, ifgranted, would: 1. Provide an appropriate design or pattern of development considering the context in which the development is proposed and the purpose of the particular standard. The proposed variance is minimal in nature and will not negatively impact the surrounding context on the site. Staff finds the proposal is consistent with the existing context. 1. Be clearly necessary for reasons of fairness related to unusual site-specific constraints The applicant is working atypical site constraints given the steep slopes and settlement agreement limiting height to one-story. Staff finds that the proposed variances are necessary due to these unusual site-specific constraints. Page 546 SETTLEMENT AGREEMENT (Among Grosz, Rodell and title) th , THIS AGREEMENT is made effective as of this 30 aay 01 June, 2009, by and among Colleen Grosz (Â£'Grosz"), Timothy C. Rodell and Marjorie M. Rodell (collectively ~'Rodell") and Milton Zale, Trustee ofthe Milton Zale'l'rust dated Deceniber 18,1980 ("Zale"), RECITALS A. Grosz, Rodell and Zale (collectively the "Parties") are owners ofproperties as described on Exhibits A - C, attached hereto and incorporated herein by reference. The Grosz property as described on Exhibit A shall be referred to herein as the "Grosz Property," the Rodel] property as described on Exhibit B as the "Rodell Property," and the Zale property as described on Exhibit C as the "Zate Property," 13. The Parties are currently parties to Case No. 20060Â¥231, Colleen Grosz. et al. v, Milton Zale. et al., Distriet Court, Pitkin County, Colorado (the litigation") involving several restrictive covenants and agreements and regarding trespass clai-ms against Zale by Modell. The Parties desire to settle sonic of these claims and counterclaims among themselves. C. Certain of the claims in the Litigation involve a restrictive covenant in a Deed recorded in Book 275 at Page 1 13 0 f the Records of Pitkin County, Colorado, which states :'Party of the Fi.i'st Part restricts improvements to a one story dwelling" (the "One Story Restriction Claims"). These claims are only by Rodell against Zale. This Agreement is not intended to and does not settle the One Story Restriction Claims. D. Certain other claims, counterclaims and cross-claims in the Litigation involve restrictive covenants related to height and single family dwelling restrictions which were included by Benedict Land and Cattle Company ("Benedict") in the first conveyance deeds to seven ofthe nine lots ("Lots") as originally platted iii Promontory Subdivision according to the Subdivision Plat recorded as Document Number 105731. Ditch Book 2A at Page 240 in the Records for Pitkin County, Colorado. Benedict was the developer of the Promontory Subdivision and the com.mon gralitor of these height and single famiiy dwelling restrictions. The Parties' properties include all or a portion of one or more of the originally platted Lots ofthe Promontory Subdivision. c, I he height restriction that Benedict placed on the Lot 6 portion of the Zale Property reads as follows: "No structure placed o.n these lots shall exceed twenty feet in height (chimneys excluded), measured vertically from the lowest point of intersection of said structure with the natural grade of the land, to the highest point ofroofridge." 1 .. rhe height restriction thal Benedict placed on the l.ot 9 portion of the Zale Property reads as follows: "No structure shall be placed on these lots which exceeds twenty fect in height (chimneys exchided), measured vertically from the lowest point of intersection of said structure with the natural grade ofthe land, to tlie highest point of roof ridge." The lieight restriction that Benedict placed on the (-irosz Property (i.e., I,ot 5) reads as follows: "No structure placed on this lot shall exceed twenty feet in height (chimneys excluded), nieasured vertically from the lowest point of intersection of said structure with the natural grade of the land to the highest point of roof ridge.'5 These height restrictions shall be collectively referred to herein as the "Benedict Height Restriction." 1, , The single lamily dwellint: restriction that Benedict placed on the Lot 6 portion ofthe Zate Property reads as follows: "Subject to the restriction that not more titan. one detached single family dwelling and outbuildings pertaining thereto shall be constructed on each of said lots." The single family dwelling restriction that Benedict placed on the Lot 9 portion of the Zale Property reads as follows: "Subject to the restrictions that only single family dwellings and outbuildings pertain.ing thereto shall be constructed on these lots. fhe single family dwelling restriction that Benedict placed on Lot 5 reads as follows: "Subject to the restriction that not more than one detached single family dwelling and outbuildings pertaining thereto will be constructed on this lot, and that no unpainted metal roofs will be permitted," These single family dwelling restrictions shOtl be collectively referred to herein as the "Benedict Singie Family Dwelling Restriction." G. Benedict did not place any restrictions on the Rodell Property. H, This Agreement is not intended to and does not settle the efTect of the Benedict I Ieight Restriction or the Benedict Single Family Dwelling Reistriction or any o.fthe height and single family dwelling restrictions on any other Lots or on the portions of Lot 6 and Lot 9 2 .. not within the Zale Property as they relate to the general plan of develop.ment for the Promontory Subdivision ("General Plan") claims, coun.terclaims and cross-claims in the Litigation; however, it does resolve the effect ofthe Benedict Height Restriction and the Benedict Single Family Dwelling Restriction as among the Parties as to their specific properties, as described on Exhibits A-C hereto, regardless of' the outcome of the General Plan elainis, counterclaims und cross-claims, 1 his Agreenient is intended to settle the following claims of Grosz and Rodell against Zate in their Third Amended and Supplemental Complaint: (1) All of Grosz and Rodell's First, Second, Fifth, Sixth and Seventh Claims for Relief; (2) all of Grosz and Rodell's Third and Fourth Claims for Relief except the One Story Restriction Claims. r,.7 ['his Agreement is intended to settle the following counterclaims ot /.ale against Grosz and Rodell in his Amended Answer to 'I bird Anie.nded and Supplemental Complaint, Counterclaims and Cross-Claims: (1) Zale's First, Second and Fourth Counterclaims against Grosz and/or Rodell, NOW, 'IUER-EFORE, for good and valuable consideration, receipt of which is hereby acknowledged, the Parties agree as follows: 1. Covenants Running With the Land. The provisions of this Agreement ate coveliants running with the land. binding upon and inuring to the benefit of the Parties liereto, and their successors and assigns. 2. Recording of Agreement. This Agreement shall be recorded in the Records for Pitkin Colinty, Colorado, to appeal in the chain of title for each property described in Exhibits A-C. 3. Effect o.f Agreement Relative to Dismissal of Clainis in I.itigation. Upon the execution of this Agieement, the Parties agree to file iii the Litigation a stipulated niotion for dismissal of the claims and counterclainis specified herein. The Parties agree that the terms ofthis Agreenient, once recorded ill the records of Pilkin County. are effective and control as among the Parties regardless of the court's determination to grant or deny such dismissals in the Litigation. 4. No Third Party Beneficiaries. This Agreement is not intended to benefit any third parties not identified herein, and, except to the limited extent so identified in a specific provision below, any right ofenforcement ofor release from enforeement of the covenants contained herein is solely for the benefit of the Parties. and their successors in interest, The owners of the portions of Lot 6 and Lot 9 of Promolitoil Subdivision not within the Zale Property are expressly denied any rights as third party beneficiaries to the releases concerning the Benedict Height Restriction, the Benedict Single Family Dwelling Restriction and Setback Restriction; and no releases of these three restrictions as to the Zale Property may be used by the owners of the portions of Lot 6 mid Lot 9 of the Promontory Subdivision not within the U.9 .. Zale Property to implicitly or explicitly avoid the -rights of enforcement any one or more of the Parties have or may have against theni regarding these three restrictions. 5. New and Existing Restrictive Coveliants, The following new restrictive covenants are independent of any other restrictions (hal burden. the Zale Property ("New Restrictive Coveliants"). do not alter the validity or eriforceability of any other restriction that burdens the tale Property and cannot be delbated by refelence to validity or lack of validity or enforceability or lack ofentbrceability of any other restriction that may burden the Zale Property or any Lot in the Proniontory Subdivision. The Parties agree that the New Restrictive Covenants are valid and enforceable, burdening the Zale Property for the benefit of the Grosz Property and the Rodell Property, as follows: a. New Height Restriction. The purpose of the New ileight Restriction is to limit the height of any structure on the Zate Propel-ty, and reads as follows: THE HEIGIÂ·IT OF ANY STRUCTURE ON THE ZALE PR.OPERTY SIÂ·IALL BE DEFINED BY A MAXIMUM ELEVATION, NOT TO EXCEED 7967 FEET IN ELEVAT[ON AT TH.E HIGHEST POINT OF ANY ROOF RII)GE (EXCLUDING CH.1MNEYS),AS DETERMINED FROM A N-VAI)88 El ,EVATION OF 7963.13 FEET ON TH.13 TOP OF THE REBAR & CAP LS #19598 iMONUMENTING THE NORTHEAST CORNER OF SAID ZALE PROPERTY. "ZALE PROPERTY" SHALL MEAN THE PROPERTY 1.EGALLY DESCRIBED ON EXHIBEr C .ATTACHED I IERETC), b. New Rooftop Deck Restriction. The purpose of the New Roottop Deck Restriction is to prohibit any rooftop decks on the 7.ale Property, and reads as follows: NO STRUCTIJR.E ON THE ZALE PROPERTY SIIALL HAVE ANY ROOFTOP DECKS. "ZA I.E.PROPERTY" SHALL MEAN THE PROPERTY LEGALLY DESCRIBED ON EXHIBIT C ATTACHED [-IRRETO, c. New Single Familv Dwelling Restriction. The purpose of the New Single Family Dwelling Restriction is to limit the structure on the Zale Property to a single family d-welling, as opposed to a duplex, condominiumized duplex, multi-family dwelling or apartment building, and jeads as follows: THE STRUCTURE CONSTRUCTED ON '1'liE ZALE PROPERTY SHALL BEA SINGLE FAMILY DWELLINC} 4 .. "ZALE PROPERTY" SIIALL MEAN TII.E PROPERTY 1.EGALLY DESCRIBED ON EXHIBIT C ATTACHED HERETO. d. Exception to New Single Family Dwell.big Restriction for City of Aspen ("City") Affoi~dablal?usitw_Miligatiqu, Grosz and Rodel]~ fe,r themselves and their successors and assigns, shall waive enforcement of the benefit wilder the New Single Family Dwelling Restriction if affordable housing miligatio.n is required by the City's Municipal Code, as in effect at the tiine ofany land development final approval on the Zate Propere, and such mitigation is required to be on-site rather than off-site mitigation, and cannot be a cash-in-lieu payment or other tbrm of mitigation. e. Effect of Benedict Height Restriction. The following shal] apply regarding the Benedict Height Restriction: i. Grosz and Rodell, for themselves and their successors and assigns, hereby release the Zale Property froin their benefts ofenfbrcement of the Benedict Height Restriction. To the extent the Benedict Height Restriction continties to burden the Zale Properly for tile benefit of any owner of a Lot or portion of a Lot in the Proniontory Subdivision, Grosz and Rodell acknowledge and agree that Zale shall have the right to construct and maintain iniprovements on the Zale Property in accordance with either the Benedict 1 leight R.estriction or the New Height Restriction so long as the height of any such improvement shall not exceed the maximum elevation of 7967 feet as described in the New Height Restriction, No release contained herein shall extend to a release of the right of Chosz and Rodellto enforce the Benedict Height Restriction against the portions of Lot 6 and Lot 9 of Promontory Subdivision not within the Zale Prope.rty. 11. for himsel fand h.is successors and assigns, hereby releases Zale, Lot 5, as platted in Pro,montory Subdivision, from his benefit of enforcement of the Benedict Height R.estriction. f. Release of Benelits of'Benedict Si.ngle Family Dwelling Restrictiqu. The following releases shall apply regarding the Benedict Single Family Dwelling Restriction: i. Grosz and Rodell, ibr themselves and their successors and assigns, hereby release the Zale Property from their benefits ofenforcement of the Benedict Single Family Dwelling Restriction. No release contained herein shall extend to a release of the right of Grosz and 5 .. Rodell to enforce the Benedict Si.ngle Family Dwelling Restriction against the portion.5 of I.ot 6 and I..01 9 of Promontory Subdivision not within the Zate Property, ii. 7.ale, for himself and his successors and assigns, acknowledges and agrees that by a court order in the Litigation, the Benedict Single Family Dwelling Restriction has been extinguished on Lot 5, as platted in Promontory Subdivision and such order eliminates tale's rights of enforcement thereof'on Lot 5 once the order becomes a final judgment in the Litigation, or upon the completion of any or all appeals thereof, i f any. g. Not Necessary Parties. The owner of any property benefitted by the New 1 leight Restriction, New Rooftop Deck Restriction and New Single Family Dwelling Restriction may seek to enforce such restrictions without making the owners ofall ofthe properties benefitted thereby or any other properties in the Promontory Subdivision necessary parties to such legal action for enforcement, h. Third Party Beneficiaries. The owners of L.ot 1 (currently Bayoil (t-JSA), Inc., n/]da Castle Creek Holdings Company), Lot 2 (currently Sterling Point Development, LLC) and Lot 5 (other than Grosz, who is a direct beneficiary, currently Felix A. De.lean III and Carolyn DeJean) of the Promontory Subdi vision are intended third party beneficiaries of the provisions pertaining to the New Height Re.striction and New Single L.-' Family Dwelling Restriction in this Paragraph 5 until such time as they, or any one or more of them, might record their own separate agreement(s) with Zate. The recording of such separate agreement with Zale will end such parties' status as inte.nded beneficiaries herein. The owners of Lot 5 are also third party beneficiaries of the remaining provisions of this Paragraph 5. 6. 1990s Settlement Agreements, The Parties are successors iii interest to the rights and obligations of that certain Memorandum Re Settlement recorded iii Book 689 at Page 805 and Settlement and Release Agreement attached as Exhibit C to Easements, Restrictive Covenants and Mutual Obligations recorded in Book 738 at Page 820, both of the Records for Pitkin County, Colorado (collectively the "1990s Settlement Agreements'7. Tile Parties confirm the validity and enforceability ofthel990s Settlement Agreements, and, in addition, agree to the following, releases, waivers and additional agreements: a. Mutual Release of Setback Restriction, Grosz, Modell and Zale, for themselves and their successors andassigns. hereby mutually release any right ofenforcement against the Zate Properly and the Rode]1 Propetly (but not any portion oflot 9 not within the Zale Properly and the Rodell Property, if any) of that certain restriction ("Setback Restriction") in Deed recorded in Book 1 88 at Page 2 of the Records for Pitkin Counly, Colorado and reaffirmed in the 19904 Settlement Agieements which reads as [bllows: NO STRUCTURE SHALL BE PLACED WITHIN FIFTEEN FEET FROM THE EAST BOUNDARY OF LOT NUMBER NINE (9). b. Landscaping on Zale Propeity. As ofthe date ofthis Agreement, ali landscaping on the Zate Property has been removed except for 3 Bristlecone Fines, 3 Aspen. Clumps, and 2 unkno\vii other trees in the southeasterly corner of the Zale Property C'Existing Trees"). The Parties hereby agree to the following waiver with respect to the Existing Trees and the following additional agreement with respect to any new landscaping to be planted on the Zale Propelly subsequent to the execution of this Agreement ("New Landscaping"): i. Existing Trees. Grosz and Rodell, for themselves and their successors and assigns, hereby waive their right to enforce the 1 990s Settlement Agreements' height restriction for landscaping on tile Zale Property with respect to those Existing Trees that are healthy trees. Unhealthy trees must be iemoved prior to implementing any land development plan for the Zate Property, ii. New Landscaping. Zate, for himself and his successors and assigns, hereby agrees that no New Landscaping shall be planted on the Zale Property which shall be capable of exceeding 7967 feet in elevation, as determined from a NVA])88 elevation of 7963.13 feet on the top of the rebar & cap .LS #19598 monumenting the northeast corner of said Zale Properly. c. Retaining Walls. The railroad tie retaining wail that is the subject of the 19903 Settlement Agreements C'Existing Retaining Wall") is constructed approximately along the boundary line between the Zaje Property und the Rodell Properly and also along the westerly boundary line of the parcel identified as Parcel .1) iii the 1990s Settlement Agreenient.s Â¢Tarce] 1-)"). The parties acknowledge and agree that the purpose of the Existing Retaining Wall is to create structural stability in the ground between the Zale Property and the Rodel] Properly and Parcel D, Zale has altered the Existiiig Retaining Wall. in violation of the 1990s Settlement Agreements, by removing the lowest tier of the three-tiered section of the Existing Retaining Wal 1 which marks the westerly boundary line ofParce] I). The Parties hereby agree to the . e following waiver with respect to the Existing Retaining Wall and the milowing additional agreements with respect to the coinpletion of the partially constructed separate retaining wall or any new retaining wail whieli may be constructed on the Zate Property (collectively, the "New Retaining Wall"): 1 U 1. aisting Retaining Wall. Grosz and Rodell, for themselves and their 7 0 . successors and assigns, hereby waive enforcement against the violation of the 1990s Settlement Agreement with respect to the Existing Retaining Wall that occur'red prior to the execution of this Agreement so long as no further modification, alteration or destruction ofthe Existing Retaining Wall occurs by Zale, or his successors and assigns, or that may occur as a result of the prior alteration ofthe Existing Retaining Wall by ZalÂ©. This waiver shall in no way be construed as a waiver of any right of enforcement against future ,modification, alteration or destruction ofthe Existing R.etaining Wall by Zale or by the same resulting fi*om Zale's prior alteration ofthe Existing Retaining Wall, ii. New Retaining Wall Zale may, at his expense, construct a New Retaining Wall on t}ie Zale Property so long as (1) no component ofthe New Retaining Wall encroaches into the Existing Retaining Wall, Parcel D, the Grosz Property or the Rodell Property; (2) no easement over, under or on the Grosz Property or the Rodell Property is reqi.tired to construct the New Retaining Wall; and (3) Grosz anc! Rodell are given the opportunity to review the New Retaining Wall design and construction plans with engineers, prior to its construction, to confirm that the New Retaining Wall will not impair the structural integrity o.fthe Existing Retaining Wall and that it will comply with the provisions of this paragraph, d. Covenant Regarding Waivers. The parties agree that the provisions of the 1 990s ,Settlement Agreements remain valid and enforceable despite the waivers of prior violations contained herein, and other thanlhe Parties' mutual release ofthe Setback Restriction, the waivers herein shut] not be used to avoid the obligations ot or to prevent enforcement against fitture violations of, the provisions of the 1990s Settlement Agreements or the additional agreements contained in this Paragraph 6, e. Ihird Partv Beneficiarics. The owners of I.01 5 of Promontory Subdivision (other than Grosz, who is a direct beneficiary) are intended third party beneficiaries ofthe, restrictive covenants in this Paragraph 6. 7. 1-respass Claims of Rodell Against Zale. Zal.e ackn.owledges that during construction. in or around Jantlary of 2007, certain portions o f a retaining wail being constructed on the tale Property were also constructed onto or into the Rodell Properly and coitstituted a trespass. As a result, in the Litigation, Rodell filed claims for damages and breach c>.fa court-ordered stipulation regarding construction activity during the pendency of the Litigation. Rodell discloses to Zate hereinthat Rodell's property insurance carrier, State Farm Fire and Casualty Company ("State Farm"), subsequently reiinbursed Rodell for repair of the immediate damage caused by the trespass. While this Agreement is intended to settle the trespass and breach of court-ordered stipulation claims in the Litigation (Rode].1's Fifth and Sixth Claims for Relief) as part of the overall settlement contain.ed herein, this Agreement does not in any way compensate Rodell again for the damage for which Rodell aheady received payment 8 .. from State Farm and for which State Farm has retained subrogation rights. Nor does it waive any of Rodell's rights to pursue future action for damages in the event ofdestruction of the Rodell Property that can be established to have resulted from the trespass described herein. To the best of Rodell's knowledge, however, as of the date ofexecution of this Agreement, there are no known but previously unasserted claims due to the trespass. 8. I.and Development Approvals for Zate Property. A residence which was located oil the Zate Property was demolished in the Fall of 2006 pursuant to Demolition Permit No. 0087.2006.ARBK. Building Permit No. 0128,2006-ARBK (the "Building Permit") was issued on .March 19,2007 for the construction of a new residence which was never constructed, Zale hereby confirms that this Building Permit has expired and that any future building pei-mit shall not issue, under any circumstance, for the development plans that were approved for construction under that Building Permit. Zaje, for himself and his successors and assigns, agrees to the l'ollowing restrictions regarding any new development plans submitted to the City for the Zale Property: a. Representation to City of I.ntent to Comply. Zale, for himself and his successors and assigns, hereby agrees to present evidence of all written and recorded restrictive covenants and other agreements burdening the Zale Property for the benefit of the Grosz Property mid/or Rodell Property to the City at the time any application for development of the Zale Property is submitted to the (Jity ibr approvals, b, Representations to Grosz and Modell of Intent to Comply. Zale, for himself and his successors and assigns, hereby agrees to notify the owners ofthe (lrosz Properly and the Rodell Property prior to submitting any new development plans, and ongoing revisions thereto, to the City for approval, and shall allow the.m the opportunity to review the same for compliance with the restrictive covenants und agreements that burden the Zale Property for the be,nefit of the Grosz Properly and/or the Rodell Property. 9. New Construction Activity. Zate, for hi.msel fand his successors and assigns. covenants and agrees to the following with respect to construction aetivity on ihe Zale Property: a. Protection from Construction Dust and Debris. 7.ale, for himselfand his successors and assigns, agrees that any construction on the Zate Property shall not proceed without adequate protections in place to prevent construction dust and debtis from being deposited onto and/or damaging Parcel [), the Grosz Property and/or the Rodell Property. iii the event such dust and debris is deposited on Parcel D, the Grosz Property or the Rodell Property during construction activity on the Zale Property, the owner of the Zate Property agrees to pay for or reimburse the owners of the Grosz Property and/or the Rodell Property for the costs of Clean up of such dust and debris and/or repair of any such damage. In the event Zale refuses or fails to make such. reimbursement, the owners of the Grosz Property and/or the Rodel j Properly shall have the right to place a lien on the Zale Properly for such amount ofreimbursement. 9 .. 10. Dismissal of Claims. Upon full execution of this Agreement, the Parties shall execute a stipulated motion for dismissal ofthe following claims of Grosz and Rodell against Zale and counterclaims of Zale against Grosz and Rodell iii the Litigation: a, Grosz and Rodell Claims in the Th.irci Amended and Supplemental Complaint Filed 1_Iia.uqry:-34 -Â®fla: i. All of the First, Second, Fifth, Sixth Claims for Relief. without prejudice. ii. Atl ofthe Seventh Claim for Relief, with prejudice; provided, however, that any portion of this Claim that relates to any portion of Lot 6 and Lot 9 of the Promontory Subdivision not within the Zale Propert-y will be dismissed without pritiudice. iii. All of the Third and Fourth Claims for Relief, eN.cert any claims related to the One Story Restriction Claims, with any portions of the Third and Fourth Claims for Relie frelated to the 1990s Seillement Agicements to be dismissed without prejudice and any portions thereof related to the Benedict Height Restriction, the Be,nedict Single Family Dwelling Restriction, Setback Restriction and the Barnard Height Limit to be dismissed with prejudice; provided. however, that any portion of these Claims that relates to any portion oflot 6 and Lot 9 ofthe Promontory Subdivision not within the Zal.e Property will be dismissed without prejudice. b. Counterclaims of Zale in Zale's Amended Answer to Third Amended and Supplemental Coniplaint. Counterclaims and Cross-Claims Filed May 23,2008: t. pirst Counterclaim for Specific Performance and Injunction regarding the 1-Ieight Restriction (identified herein as the Benedict I {eight Restriction) against Grosz only, with prejudice. ii. Second Counterclai.m for Specific Perform.ance and Injunction regarding the 1Ieight Restriction (identified herein as the Benedict Height Restriction) L., against Rodell only, with prejudice. iii, Fourth Counterclaim for Declaratory judgment against Grosz and Rodell, with prejudice. 11. Representations by Zale. Zate represents that the following statements are true and accurate as of the date of full exectition of this Agreement: a. That Zale has not entered into or reached any type of settlement of any claimts) involving the Orie Story Restriction that is the subject of the One Story Restriction 10 .. Claims which Zale has agairist any title company insuring title to the Zale Property. b. That tale is the sole owner oflhe Zate Property. c. That Zateis not under any verbal or wrillen contract, bargain, obligation or promise to sell. transfer, gift, convey, or in any ollier maii_ncr dispose of any or all of his interest in the Zale Properly, d. That Zale has no present intention to sell, transfer, gift, convey, or in any other manner dispose of any or all of his interest ill the Zale Properly. 12. 513Cel janÂ¢Olla A. Further Assurances. The Parties shall cooperate fully with each other and execute such further histruments, docuinents, and agieements, and shall give mic.h further written assurances, as may be reasonably requested by the other patty to better evidence and reflect the transactions described herein and contemplated hereby, and to carry into effect the intent and purposes of this Agreement. B. Amendments. 1.Jnless a particular amendment would affect only two of the Parties hereto, or their successor and assigns, this Agreement may be amended only by an instrument in writing signed by all of the .Parties hereto, or their successors or assigns. Severabi lity. 1 f any term or provision of this Agreement shall, to any extent, be determined to be invalid or unenfbrceable by a court or body of competent jurisdiction, the remainder ofthis Agreement snail not be affected thereby, and each term and provision of this Agreement shall he valid and enforceable to th.e fullest extent permitted by law. D. Captions and Pro.nouns, The captions ofthe sections of this Agreement and pro.nouns used in reference to the Parties are for convenience only and shall not be deemed to be relevant in resolving any question of interpretation or construction of any part of this Agreenient. E. Counterparts. This Agreement may be executed in counterparts, each of which shall be considered an original, and all of which together shall be deemed to be one and the same instrument. F. Applicable Law; Construction of Agreement: Attorneys' Fees. This Agreement is entered into in the County of Pitkin, State of Colorado and it will be governed in all respects by the laws ofColorado. In the event of litigation arising fioin the interpretation or the enforcement ofany of the tell-us or provisions ofthis Agreement, the Parties hereofagree thatiurisdiction and venue for such litigation 1 1 .. shall be in the couits of Pitkin County, Colorado and that the prevailing party shall rective an award of reasonable attorneys' fees. G. Binding Jiffect, 1 his Agreement shall bind and benefit the heirs, personal representatives, successors, and assigns of each party and shall benefit each other person referred to in this Agreement. H. Organizat'ion: Authority: No Con flicts. The Parties represent to each other that the execution atid delivery of this Agreement lias been duly and validly authorized, and all requisite action has been taken to make this Agreement valid and binding upon the Parties. The Parties further represent to each other that the consummation of the transactions conterriplated by this Agreement will not constitute a default or result in the breach o f any tenn or provision of any contract or agreement to which they are a party. IN WI'I*NESS whereof the Parties hereto have executed this Agreement as of the day and year stated in the notary clauses for each of their signatures. (SIGNATURES ON FOLLOWING PAGES) 12 Colleen Grosz STATE OF ILLINOIS ) ) SS. County of Cook ) #lt This document was acknowledged before me on this.21_ day of June, 2009, by Colleen Grosz. Witness my hand and official seal. My commission expires: //~OF~'20// ..... . /3/ /11 i Lzd-&:21Â£22Â£_ __ j "OFFICIAL SEAL Notary Public ANDRIANNA D. FLORES 1 NOTARY PUBLIC, STATE OF ILLINOIS Z 9Â·ity Commission Expires 11/08/2011 1 .. 4 // cuy-â‚¬1 0-,e 1; U.- Timothy C. Rodelf 1 ficÂ»- d it Uf Marjorie~,1. Rodell STATE OF COLORADO ) ) QQ County of ~ 2 - ) 'This docume.nt was acknowledged before me on thur__ _ day of June, 2009, by Timothy C. Rodell. Witness myhandand official seal. AR NOTARY PUBHO 1 [-IWijffiX dititi-k-F--'--} 1 S TATE () Ii' COLORADO I My commission expires: Fl My (.ommisslon Expires 12/31/2011 9 / Notary Pii.blic STATE OF COLORADO ) ) SS. f)/1 County of F ft A-t u- 1 9 941 This document was acknowledged before me on thisti_ day of June, 2009, by Marjorie M. Rodell, Witness my hand and ofticial seal, 'r,/ /\ ANDREA CROUSE lA\ NOTARY PUBLIC 1/ 1 i STATE OF COLORADO My commission expires: M My Commission Expires 12/31/2011 ,/7/ /f. ;<lotarf Public .. MILTON ZALE TRUST dated December 18,1980 ~/4 /1 C - 0 - By: -4614 1 4 / illtolf Zale, Tt~Ustee STATE OF COLOR.ADO ) ) SS. County of ~C 4-\<1 n ) , r.3 1-/ l'his document was acknowledged before me on this _30 day of June, 2009; by Milton Zale, Trustee of the Milton Zale Trust dated December 18,1980. Witness my hand and official seal. My commission expires: /*1 ~ .' C O - 1 l- 21,0 /1 1 Y All/1 l/f (211. r :La---------Â·o 14f--f --t~f/V ~~___*~~Â£4- ~1/4-- Ndtary Publict 02 AMY 1 Â£ BAPP ; * 0& . 0%*ER@P' 15 CONDOMINIUM UNLT A, LAKEVIEW TOWNHOME CONDOMINIUMS, according to the Plat thereof recorded March 3, 1994 in Plat Book 33 at Page 92 and as defined and described in the Condominium Declaration for Lakeview Townhome Condom.inil.tms recorded March 8,1994 in Book 743 at Page 763, County of Pitkin, State of Colorado. L.J (Grosz Property Legal Description) E EXHIBIT EXHIBIT A 9 A parcel of land bituate within a portion. of Lote 7 and 3, Block 1, Promontory Subdivision, City of Aspen, Pitkin County, Colorado, describad as follows; Beginning at the Northeasterly corner of Lot 7, Block 1, of oald Promontory Subdivision, said point being on the Westerly right-of-way of Midland Avenue, said point also being a rebar and cap found in place; thance N 77021'33u W along the common property line of Lot 7 and 5, Block 1, Promontory Subdivision a distance of 111,49 feet to a point on tha Westerly line of the Easterly 15.00 feet of Lot 9, Block 1, Promontory Subdivision, said point being a rebar and dap found in place, thence along said Eaeterly line S 04Â°35'38" W a distance of 89.38 feet to an existing wood fence; thence along said fence the following two (2) courscs: 8 87000'101' E a distance of 4.44 feet; thence S 50Â°49'49" E a distance of 28.10 feet to a point on the Southerly line of said Lot 7, Block 1, Promontory Subdivision, thence along said Moutherly line S 77*45'35" E a distance of 22.11 feet to the Scuthweaterly corner of an exception parcel described in Book 457 at Page 136, Pitkin County Clerk and Recorder's Office, Bald point being a rebar and cap found in place, thence along said exception parcel the following two (2) courses: M 51004145" E a distance of 51.35 feet to & rebar a cap found in place; thence 8 77033'49" E a distance of 16.00 fest to a point on the Westerly right-of-way line of Midland Avenue; thence along said Westerly right-of-way to following two (2) courses: N 15Â°23:400 E a distance eC 35.90 feet; thence N 07010'22" E a distance of 24.13 feet to the point of beginning. TOGETHER- WITH that certain parcel Of land as set fo..th in Quit Claim Deed xecorded December 13, 1991 in Book 664 at Page :39. EXCLUDING FROM the- above described real property that certain parcel of land described in Quit Claim Deed recorded December 17, 1991 in Book 664 at Page 710, COUNTY OF PITKIN, STATE OF COLOAK- 3 . 367125 8-742 P-313 02/18/94 03#4Â¥F M 4 OF 4 r-r~ EXHIBIT 1 CRodell Property Legal Doscription) B t 3 ---- .. A parcel of land situated in Lots 6 and 9 of the PROMONTORY SUBDIVISION, City ofAspen, County ofPitkin, State of Colorado, said parcel being more particularly described as follows: Commencing at the. Northwesterly corner of the First Amendment to the Hobgood-Burres Subdivision Exception Plat recorded in Reception Number 427535 said point also being on the Easterlyright-of-way of Park Avenue, the Point of Beginning; thence leaving said Hobgood- Burres Subdivision N05Â°03'00" W along said Easterlyright-of-way a distance of43,39 feet; thence continuing along said Easterlyright.of-way N10Â°04'00"W a distance of 71.56 feet to a point on the Northerly boundary ofthatparcel described in Reception No. 375895; thence leaving said right-of-way $75Â°06'00"E along said Northerly boundmy, a distance of 67.31 feet to a point on the Westerly boundary ofsaid Hobgood-Burres Subdivision; thence leaving said Reception No. 807Â°02'58"W along said Westerly boundary 914Â°02' 15"E a distance of 21,13 feet; thence continuing along said Westerly boundmy 811Â°56'47"W a distance of41.93 feet; thence continuing along said WestÂ¢.rly boundary N75Â°06'00"W a distance of 40,93 feet to the Point of Beginning. County o f Pitkin. State of Co lorado 1 ~ (zalo Property I,egal Description) 09=# 1.':mila 0 A#Ro k le,Lt k , v .A.0# " . ~â€¢98\Â¢13/ 10CA0085 Grosz v. Zale 08-11-2011 Aug 11 201 1 08 00AM COLORADO COURT OF APPEALS Court of Appeals No. 10CA0085 Pitkin County District Court No. 06CV231 Honorable Edwin G. Ruland, Judge Honorable Denise K. Lynch, Judge Colleen Grosz, Timothy C. Rodell, and Marjorie M. Rodell, Plaintiffs-API)ellees, V. Milton Zale, Trustee of the Milton Zale Trust dated December 18, 1 980, Defendant-Appellant, JUDGMENT AFFIRMED Division VII Opinion by JUDGE RUSSEL Loeb and Plank*, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(11 Announced August 11, 2011 ~ Klein, Cotd & Edwards, LLC, I.ance R. Cold, Madhu B. Krishnalnurti, Aspen, Colorado, for Plaintiffs-Appellees Sweetbaum Sands Anderson PC, Geoffrey P. Anderson, Hilary A. Anderson, Denver, Colorado, for Defendant-Appellant~ *Sitting by assignment of the Chief Justice under provision s of Colo. Const. art. VI, Â§ 5(3), and Â§ 24-51-1105, C.R.S. 2010. .. Milton Zale, Trustee of the Milton Zale Trust dated December 18, 1980 (Zale). appeals from the district court's declaratory judgment in favor of Colleen Grosz, Timothy C. Rodell, and Marjorie M. Rodel] (collectively, the Rodells). We affirm. 1. BackgI'ound Zale obtained permits to build a new home in Aspen. His neighbors, the Rodells, sued to block the project. The Rodells asserted several. claims against Zale, including a claim for declaratory and injunctive relief based on various building restrictions. One restriction, contained in Zale's deed, limi.ted *â€¢ improvements to a one story dwelling. During litigation, the Rodells asked the court to declare "that the One Story Restriction is valid, that it binds [Zale], and it is enforceable by the Rodells." Zale responded that, as a result of changes both in the neighborhood and in buildin.g techniques, the term "one story" is now ambiguous. The court ruled that the one- story- restriction is valid. and. unambiguous. Two years later, Zale moved for reconsideration of the court's order and requested partial summary judgment in his favor. Relying on Allen v..Reed, 155 P.3d 443 (Colo. App. 2006), Zale 1 .. argued that the one-story restriction is ambiguous and therefore unen.forceable. The court denied his motion. The court distinguished Allen oil the ground that Zale 's restriction is not a height restriction. Zale eventually abandoned his proposed building plans, and the Rodells dismissed their remaining claims. The court then certified, as a final judgment under C.R.C.P. 54(b), its orders upholdin.g the one-story restriction. II. Disc-ussion The sole issue js whether the court erred in declaring that the one-story+ restriction is not so ambiguous as -to be unenforceable. We review de novo, see Evergreen High.lands Ass'n v. West, 73 P.3d 1,3 (Colo. 2003), and conclud.e th-at the court ruled correctly. For the sake of simplicity, we assume (without deciding) that. the following observations are true: 1. Restrictive covenants that limit structures to a height defined by "stories" are significantly ambiguous. See Allen, 155 P.3d at 445 ("[Flailure to prescribe any numerical measure for the maximum 'height' of a story renders the la.nguage of the coven.ant susceptible of more than one interpretation."); but 2 .. 2. A bu ilding restriction is unen forceable if it is significantly ambiguous. See Allen, 155 P.3d at 446; Hiner v. Hott-man, 977 P.2d 878,886 (Haw. 1999) (language prohibiting dwelling more than two stories in height is ambiguous and. unenforceable); but see Metius v. Julio, 342 A.2d 348,353-55 (Md. Ct. Spec. App. 1975) f'three stories in height" restriction is ambiguous but not unenforceable; restriction construed in light of the building code's definition of "story"); Foster u. Nehls, 551 P.2d 768, 771 (Wash. Ct. App. 1976) (restriction limiting buildings to one a-nd one-half stories in height is ambiguous. but it is enforceable). ,-2, .. Nevertheless, we uphold the court's ruling because Zale's restriction. is not significantly ambiguous: 1. We agree with the trial court that, as used here, the term "one story" has a plain and ordinary mea-ning. See Allen, 155 P.3d at 445 ("In ascertaining whether certain provisions of an instrument are ambiguous, we must examine the instrument's language and construe it in h.armony with th.e plain and generally accepted meaning of the words employed."). 2. Like the trial court, we reject the suggestion t}iat Zale's restriction is merely a height restriction. (The restriction does not mention height, and Zale is separately burdened by a restriction that proh.ibits the construction of any structure exceeding Â«twenty feet in height... measured vertically from the lowest point of the intersection of said structure with the natural grade of the land to the highest point of [thel roof ridge.") In our view, the restriction limits the type of dwelling that Zale may build. (For example, Zale could build a typical ranch style house but not a typical Queen Anne style house.) 3. We therefore conclude that Zale's one-story restriction is different from a "one-story in h.eight" restriction. See Hiner, 4 .. 977 P.2d at 882Â·-83 (although "two stories in height" is ineffectual and ambiguous as a height restriction, a covenant restricting homes to "two stories" might be effective to preserve the aesthetic character of the neighborhood); see also Holmestey u. Walk, 39 S.W.3d 463,466-67 (Ark. Ct. App. 2001) (restrictive covenant prohibiting two--story dwellings held unambiguous); Snashall v. Jewell, 363 P.2d 566, 571 (Or. 1961) (trial court reasonably interpreted "one sin.gle story dwelling" restriction). We recognize that, like almost all language, the term "one story" contains some inherent ambiguitv. And we do not foreclose the possibility that such ambiguity may operate in Zale's favor when the term is construed in light of a particular building plan. We merely conclude, as did the trial court, that the restriction here is not so ambiguous as to be void. IIi. Attorney Fees The Rodells request an ord.er requiring Zale to pay for the attorney fees and costs that thev incurred in defending this appeal. They do so on tlie ground that Zale's appeal is frivolous. See Â§ 13- 17-102, C.R.S. 2010; C.A.R. 38(d), 39.5. We deny this requ.est. Ul .. Although unsuccessful, Zale's appeal is neither frivolous as filed nor frivolous as argued. See Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo. App. 2006) (distinguishing "frivolous as filed" from 93 / "frivolous as argued j. Th.e judgment is affirmed.. JUDGE LOEB and JUDGE PLANK co.ncur. 6 0 . RECEIVED ATTACHMENT 2-LAND USE APPLICATION oCT 31 2011 PROJECT: CITY OF ASPEN COMMUNITY DEVELOPMENT Name: Zale Residence Location: 190 Park Avenue, Aspen CO, Promontory Subdivision (Indicate street address, lot & block number, legal description where appropriate) Parcel ID # (REQUIRED) 2737-1810-7009 APPLICANT: Name: Milton & Nina Zale Address: c/o The Zale Company, 3824 N. Ashland Ave., Chicago IL 60613 Phone #: 773.472.2150 REPRESENTATIVE: Naine Gilbert Sanchez, Studio B Architects Address: 501 Rio Grande Place, Suite 104, Aspen, CO 81611 Phone #: 970.920.9428 TYPE OF APPLICATION: (please check all that apply): U GMQS Exemption U Conceptual PUD U Temporary Use E GMQS Allotment E Final PUD (& PUD Amendment) D Text/Map Amendment 2 Special Review U Subdivision U Conceptual SPA U ESA - 8040 Greenline, Stream H Subdivision Exemption (includes U Final SPA (& SPA Margin, Hallam Lake Bluff, condominiumization) Amendinent) Mountain View Plane U Commercial Design Review El Lot Split El Small Lodge Conversion/ Expansion ~ Residential Design Variance U Lot Line Adjustment U Other: E] Conditional Use EXISTING CONDITIONS: (description ofexisting buildings, uses, previous approvals, ete.) The existing residence was demolished in 2006 under a previously issued building permit. Soil stabilization & excavations from that work exist. PROPOSAL: (description of proposed buildings, uses, modifications, etc.) New construction of a single family residence. Have you attached the following? FEES DUE:$ 7 9Â© 07) 2 Pre-Application Conference Summary [2 Attachment #1, Signed Fee Agreeinent D Response to Attachment #3, Dimensional Requirements Form [2 Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards 23-D Model for large project 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. . . RECEIVED OCT 3 1 2011 CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY CITY OF ASPEN COMMUNITY DEVELOPMENT PLANNER: Sara Adams, 970.429.2778 DATE: 9.9.11 PROJECT: 190 Park Ave. REPRESENTATIVE: Gilbert Sanchez, qilbert@studiobarchitects.net TYPE OF APPLICATION: Residential Design Standards Administrative Variance DESCRIPTION: The property located at 190 Park Avenue is set into a steep hill and has a number of restrictions (resulting from a private settlement) on the type and height of building that is constructed on the site. The potential applicant seeks administrative variances for two of the Residential Design Standards: Section 26.410.040.C.2.b regarding car ports and Section 26.410.040.D.3.a regarding window height. The Community Development Director has the authority to grant up to three administrative variances for the Design Standards. An administrative approval does not require a public hearing. Land Use Code Section(s) 26.410 Residential Design Standards 26.410.020.D.1 Review Standards for Residential Design Standards Variances Review by: Community Development Staff for complete application Public Hearing: Not required Planning Fees: $735. This includes three (3) hours of staff review time. Additional time over three (3) hours will be billed at $245 per hour Total Deposit: $735 **please note that Planning Fees are subject to change in November, 2011. Total Number of Application Copies: 2 Copies To apply, submit the following information 171 Total Deposit for review of application. 171 Pre-application Conference Summary. 171 Applicant's name, address and telephone number, contained within a letter signed by the applicant stating the name, address, and telephone number of the representative authorized to act on behalf of the applicant. 1 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 the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ~ A site plan depicting the proposed layout and the project's physical relationship to the land and its surroundings. 1-71 Completed Land Use application and signed fee agreement. E-1 An 8 1/2" x 11 " vicinity map locating the subject parcel within the City of Aspen. Â¢9 4 4:... ' 7 .. Ul Elevations and floor plans of the proposed development. [Fl A written description of the proposal and a written explanation of how a proposed development complies with the review standards (26.410.020.D.1). Please include photographs of surrounding buildings to provide context when addressing criterion 26.410.020.D.1.a. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. RECEIVFD OCT 31 2011 CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT 6*71, Agreement for Pavment of City of Aspen Development Application Fees C*rY O~S~tT CITY OF ASPEN (hereinafter CITY) and Milton Zale (hereinafter APPLICANT) AGREE AS FOLLOWS: 1. APPLICANT has submitted to CITY an application for Residential Design Standards Administrative Approvals (hereinafter. THE PROJF.CT). 2. APPLICANT understands and agrees tliat the City o f Aspen has ati adopted fee structure for Land Use applications and the payment of all processing fees is a conditioii precedent to a determination of application completeness. 3. APPLICANT and CITY agreeÂ·that becallse ofthe size. nat,11Â·C or scope o f the proposed project. it is not possible at this time to ascertain the full extent of the costs involved in processing the applicatioii. APPLICANT anc! CITY further agree that it is in the interest of the parties tliat APPLICANT make payment of an initial deposit and to thereafter pei-mit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/01- approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will inake additional payments upon notification by the CITY when they at-e necessary as costs are incuried. CITY agrees it will be benefited thiÂ·ougli die grcater certainty of recoveri ng its fu 11 costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or piesent sufficient information to the Historic Pieservation 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 iii consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness. APPLICANT sliall pay an initial deposit in the amount 01$ 735.00 whichisfor(3) three 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 otthe application mentioned above. including post approval review at a rate of $245.00 per planner hour over the initial deposit. Such pei-iodic payments sliall be made within 30 days of the billiiig date, APPLICANT further agrees that failure to pay sucli acci-tied costs sliall 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 APPLICANT Chris Bendon Community Development Director Date: 9{19&? 0 7 Billing Address and Telephone Number: The Zale Company 3824 N. Ashland Avenue Chicago, IL 60613 773.472.2150 .. RECEIVFD ATTACHMENT 3 OCT 31 0 DIMENSIONAL REQUIREMENTS FORM co~4 09 20 11 04/4 DEPPEN Project: Zale Residence 408147 Applicant: Milton & Nina Zale Location: 190 Park Avenue Zone District: R-6 Lot Size: 5,685 SF Lot Area: 2,893 SF ( for the purposes of calculating Floor Area, Lot Area may be reduced for areas within the high water mark, easements, and steep slopes. Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: NA Proposed: NA Number o f residential units: Existing.Â· * Proposed: 1 Number of bedrooms: Existing: * Proposed: 3 Proposed % o f demolition (Historic properties only): NA DIMENSIONS: Floor Area: Existing. * Allowable: 2,320 Proposed: 2,317 Principal bldg. height: Existing; * Allowable: 25' Proposed: 24' Access. bldg. height: Existing.Â· Allowable: Proposed: On-Site parking: Existing: * Required: 2 Proposed: 2 % Site coverage: Existing. * Required: No Limit Proposed: NA % Open Space: Existi,ig: * Required: None Proposed: NA Front Setback: Existing. * Required: 10' Proposed: 10' Rear Setback: Existing; * Required: 10' Proposed: 10' Combined F/R: Existing. * Required: NA Proposed: NA Side Setback: Existing; * Required: 5' Proposed: 5 1 Side Setback: Existing; * Required: 5 ' Proposed: 5 ' Combined Sides: Existing.Â· * Required. 13 '-9" Proposed: 13 '-9" Distance Between Existing * Required: 5 ' Proposed: NA Buildings Existing non-conformities or encroachments: Variations requested: Confirmation that the proposed carport complies with 26.410.040.C.2.b or a variance from the requirement if necessary. Variance from 26.410.040.D.3.a regarding street facing windows between 9' & 12' above finished floor. .. September 21, 2011 Community Development The City of Aspen 130 South Galena Aspen, CO 81611 To Whom It May Concern: As the Owner of 190 Park Avenue, I authorize Studio B Architects, 501 Rio Grande Place, Suite 104, Aspen, CO 81611,920.9428, to represent me in matters related to City of Aspen approvals for the new construction a single- family residence on the property. 2/1 k Milton Zale The Zale Company 3824 N. Ashland Avenue Chicago, IL 60613 773.472.2150 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 1 OF 18, R *91.00 Janice K. Vos Caudi.i,L, Pitkin County, CO .. SETTLEMENT AGREEMENT (Among Grosz, Rodell and Zale) THIS AGREEMENT is made effective as of this 30th day of June, 2009, by and among Colleen Grosz ("Grosz"), Timothy C. Rodell and Maijorie M. Rodell (collectively"Rodell") and Milton Zale. Trustee of the Milton Zale Trust dated December 18,1980 ("Zale"). RECH'ALS A. Grosz, Rodell and Zale (collectively the "Parties") are owners o f properties as described on Exhibits A - C, attached hereto and incorporated herein by reference. The Grosz property as described on Exhibit A shall be referred to herein as the "Grosz Property," the Rodell property as described on Exhibit B as the "Rodell Property," and the Zate property as described on Exhibit C as the "Zale Property." B. The Parties are currently parties to Case No. 2006CV231. Colleen Grosz, et al. v. Milton Zale. et al., District Court, Pitkin County, Colorado (the "Litigation") involving several restrictive covenants and agreements and regarding trespass claims against Zale by Rodell. The Parties desire to settle some of these claims and counterclaims among themselves. C. Certain of the claims in the Litigation involve a restrictive covenant in a Deed recorded in Book 275 at Page 113 of the Records of Pitkin County, Colorado, which states "Party of the First Part restricts improvements to a one story dwelling" (the "One Story Restriction Claims"). These claims are only by Rodell against Zale. This Agreement is not intended to and does not settle the One Story Restriction Claims. D. Certain other claims, countgrclaims and cross-claims in the Litigation involve restrictive covenants related to height and single family dwelling restrictions which were included by Benedict Land and Cattle Company ("Benedict") in the first conveyance deeds to seven of the nine lots ("Lots") as originally platted in Promontory Subdivision according to the Subdivision Plat recorded as Document Number 105731, Ditch Book 2A at Page 240 in the Records for Pitkin County, Colorado. Benedict was the developer of the Promontory Subdivision and the common grantor of these height and single family dwelling restrictions. The Parties' properties include all or a portion of one or more of the originally planed Lots of the Promontory Subdivision. E. The height restriction that Benedict placed on the Lot 6 portion ofthe Zale Property reads as follows: "No structure placed on these lots shall exceed twenty feet in height (chimneys excluded), measured vertically from the lowest point of intersection of said , structure with the natural grade of the land, to the highest point of roof ridge." 1 . RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 2 OF 18, Janice K. Vos Caudill,ltkin County, CO The height restriction that Benedict placed on the Lot 9 portion of the Zale Property reads as follows: "No structure shall be placed on these lots which exceeds twenty feet in height (chimneys excluded), measured vertically from the lowest point of intersection of said structure with the natural grade ofthe land, to the highest point of roof ridge." The height restriction that Benedict placed on the Grosz Property (i.e., Lot 5) reads as follows: "No structure placed on this lot shall exceed twenty feet in height (chimneys excluded), measured vertically from the lowest point of intersection of said structure with the natural grade of the land to the highest point of roof ridge." These height restrictions shall be collectively referred to herein as the "Benedict Height Restriction." F. The single family dwelling restriction that Benedict placed on the Lot 6 portion of the Zale Property reads as follows: "Subject to the restriction that not more than one detached single family dwelling and outbuildings pertaining thereto shall be constructed on each of said lots." The single family dwelling restriction that Benedict placed on the Lot 9 portion of the Zale Property reads as follows: "Subject to the restrictions that only single family dwellings and outbuildings pertaining thereto shall be constructed on these lots." The single family dwelling restriction that Benedict placed on Lot 5 reads as follows: "Subject to the restriction that not more than one detached single family dwelling and outbuildings pertaining thereto will be constructed on this lot, and that no unpainted metal roofs will be permitted." These single family dwelling restrictions shall be collectively referred to herein as the "Benedict Single Family Dwelling Restriction." G. Benedict did not place any restrictions on the Rodell Property. H. This Agreement is not intended to and does not settle the effect of the Benedict Height Restriction or the Benedict Single Family Dwelling Restriction or any of the height and single famijy dwelling restrictions on any other Lots or on the portions of Lot 6 and Lot 9 2 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 3 OF 18, Janice K. Vos Caudi~Pitkin County, CO ~ not within the Zale Property as they relate to the general plan of development for the Promontory Subdivision ("General Plan") claims, counterclaims and cross-claims in the Litigation; however, it does resolve the effect of the Benedict Height Restriction and the Benedict Single Family Dwelling Restriction as among the Parties as to their specific properties, as described on Exhibits A-C hereto, regardless of the outcome of the General Plan claims, counterclaims and cross-claims. I. This Agreement is intended to settle the following claims of Grosz and Rodell against Zale in their Third Amended and Supplemental Complaint: ( 1) All of Grosz and Rodell's First, Second, Fifth, Sixth and Seventh Claims for Relief; (2) all of Grosz and Rodell's Third and Fourth Claims for Relief except the One Story Restriction Claims. J. This Agreement is intended to settle the following counterclaims ofZale against Grosz and Rodell in his Amended Answer to Third Amended and Supplemental Complaint, Counterclaims and Cross-Claims: (1) Zale's First, Second and Fourth Counterclaims against Grosz and/or Rodell. NOW, T}IEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, the Parties agree as follows: 1. Covenants Running With the Land. The provisions ofthis Agreement are covenants running with the land, binding upon and inuring to the benefit of the Parties hereto, and their successors and assigns. 2. Recording of Aitreement. This Agreement shall be recorded in the Records for Pitkin County, Colorado, to appear in the chain of title for each property described in Exhibits A-C. 3. Effect of Acreement Relative to Dismissal of Claims in Litigation. Upon the execution ofthis Agreement, the Parties agree to file in the Litigation a stipulated motion for dismissal ofthe claims and counterclaims specified herein. The Parties agree that the terms of this Agreement, once recorded in the records of Pitkin County, are effective and control as among the Parties regardless of the court's determination to grant or deny such dismissals in the Litigation. 4. No Third Party Beneficiaries. This Agreement is riot intended to benefit any third parties not identified herein, and, except to the limited extent so identified in aspecific provision below, any right ofenforcement of or release from enforcement of the covenants contained herein is solely for the benefit of the Parties, and their successors in interest. The owners of the portions of Lot 6 and Lot 9 of Promontory Subdivision not within the Zate Property are expressly denied any rights as third party beneficiaries to the releases concerning the Benedict Height Restriction, the Benedict Single Family Dwelling Restriction and Setback Restriction; and no releases ofthese three restrictions as to the Zale Property may be used by the owners of the portions of Lot 6 and Lot 9 of the Promontory Subdivision not within the 3 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 4 OF 18, Janice K. Vos Caudill,jtkin County, CO ~ Zale Property to implicitly or explicitly avoid the rights of enforcement any one or more of the Parties have or may have against them regarding these three restrictions. 5. New and Existing Restrictive Covenants. The following new restrictive covenants are independent ofany other restrictions thar burden the Zale Properly ("New Restrictive Covenants"). do not alter the validity or enforceability of any other restriction that burdens the Zale Propeny and cannot be defeated by reference to validity or lack of validity or enforceability or lack of enforceability ofany other restriction that may burden the Zale Property or any Lot in the Promontory Subdivision. The Parties agree that the New Restrictive Covenants are valid and enforceable, burdening the Zale Property for the benefit of the Grosz Property and the Rodel] Property, as follows: . 1 a. New Height Restrictionf The purpose of the New Height Restriction is to limit the height of any structure on the Zale Property, and reads as follows: THE HEIGHT OF ANY STRUCTURE ON THE ZALE PROPERTY SHALL BE DEFINED BY A MAXIMUM ELEVATION, NOT TO ~ EXCEED 7967 FEET IN ELEVATION AT THE HIGHEST PONT OF Â£ ANY ROOF RIDGE (EXCLUDING CHIMNEYS), AS DETERMINED FROM A NVAD88 ELEVATION OF 7963,13 FEET ON THE TOP OF THE REBAR & CAP LS #19598 MONUMENTING THE NORTHEAST CORNER OF SAID ZALE PROPERTY. "ZALE PROPERTY" SHALL MEAN THE PROPERTY LEGALLY DESCRIBED ON EXHIBIT C ATTACHED HERETO. 67New Rooftor) Deck Restriction. The purpose of the New Rooftop Deck Restriction is to prohibit any rooftop decks on the Zale Property, and reads as follows: NO STRUCTURE ON THE ZALE PROPERTY SHALL HAVE ANY 4 ROOFTOP DECKS. "ZALE PROPERTY" SHALL MEAN THE PROPERTY LEGALLY DESCRIBED ON EXHIBIT C ATTACHED IlERETO. c. New Single Family Dwelling Restriction. The purpose of the New Single Family Dwelling Restriction is to limit the structure on the Zale Property to a single family dwelling, as opposed to a duplex, condominiumized duplex, multi-family dwelling or apartment building. and reads as follows: THE STRUCTURE CONSTRUCTED ON TI IE ZALE PROPERTY SIÂ·IALL BE A SINGLE FAMILY DWELLING 4 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 5 OF 18, Janice K. Vos Caudil~Pitkin County, CO ~ "ZALE PROPERTY" SHALL MEAN THE PROPERTY LEGALLY DESCRIBED ON EXHIBIT C ATTACHED HERETO. d. Exception to New Single Family Dwelline Restriction for City of Aspen ("Citv") Affordable Housing Mitigation. Grosz and Rodell, for themselves and their successors and assigns, shall waive enforcement of the benefit under the New Single Family Dwelling Restriction if affordable housing mitigation is required by the City's Municipal Code, as in effect at the time of any land development final approval on the Zale Property, and such mitigation is required to be on-site rather than off-site mitigation, and cannot be a cash-in-lieu payment or other form of mitigation. e. Effect of Benedict Height Restriction. The following shall apply regarding the Benedict Height Restriction: i. Grosz and Rodell, for themselves and their successors and assigns, hereby release the Zale Property from their benefits of enforcement ofthe Benedict Height Restriction. To the extent the Benedict Height Restriction continues to burden the Zale Property for the benefit of any owner of a Lot or portion of a Lot in the Promontory Subdivision, Grosz and Rodell acknowledge and agree that Zate shall have the right to construct and maintain improvements on the Zale Propelly in accordance with either the Benedict Height Restriction or the New Height Restriction so long as the height of any such improvement shall not exceed the maximum elevation of 7967 feet as described in the New Height Restriction. No release contained herein shall extend to a release of the right of Grosz and Rodell to enforce the Benedict Height Restriction against the portions ofLot 6 and Lot 9 of Promontory Subdivision not within the Zale Properly. ii. Zale, for himselfand his successors and assigns, hereby releases Lot 5, as platted in Promontory Subdivision, from his benefit of enforcement ofthe Benedict Height Restriction. f. Release of Benefits of Benedict Single Familv Dwelling Restriction. The following releases shall apply regarding the Benedict Single Family Dwelling Restriction: i. Grosz and Rodell, for themselves and their successors and assigns, hereby release the Zale Property from their benefits of enforcement of the Benedict Single Family Dwelling Restriction. No release contained herein shall extend to a release of the right of Grosz and 5 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 6 OF 18, Janice K Vos Caudill,~tkin County, CO ~ Rodell to enforce the Benedict Single Family Dwelling Restriction against the portions of Lot 6 and Lot 9 of Promontory Subdivision not within the Zale Properly ii. Zale, for himself and his successors and assigns. acknowledges and agrees that by a court order in the Litigation, the Benedict Single Family Dwelling Restriction has been extinguished on I,ot 5, as platted in Promontory Subdivision and such order eliminates Zale's rights of enforcement thereof on Lot 5 once the order becomes a final judgment in the Litigation, or upon the completion of any or al] appeals thereof, i f any. g. Not Necessary Parties. The owner of any property benefitted by the New Height Restriction, New Rooftop Deck Restriction and New Single Family Dwelling Restriction may seek to enforce such restrictions without making the owners of all of the properties benefitted thereby or any other properties in the Promontory Subdivision necessary parties to such legal action for enforcement. h. Third Parr, Beneficiaries. The owners of Lot 1 (currently Bayoil (USA). Inc., n/Ada Castle Creek Holdings Company), Lot 2 (currently Sterling Point Development, LLC) and Lot 5 (other than Grosz, who is a direct beneficiary, currently Felix A. DeJean Ill and Carolyn DeJean) of the Promontory Subdivision are intended third party beneficiaries of the provisions pertaining to the New Height Restriction and New Single Family Dwelling Restriction in this Paragraph 5 until such time as they, or any one or more of them, might record their own separate agreement(s) with Zale. The recording of such separate agreement with Zale will end such parties' status as intended beneficiaries herein. The owners of Lot 5 are also third party beneficiaries of the remaining provisions of this Paragraph 5. 6. 1990s Settlement Agreements. The Parties are successors in interest to the rights and obligations ofthat certain Memorandum Re Settlement recorded in Book 689 at Page 805 and Settlement and Release Agreement attached as Exhibit C to Easements, Restrictive Covenants and Mutual Obligations recorded in Book 738 at Page 820, both of the Records for Pitkin County, Colorado (collectively the "1990s Settlement Agreements"). The Parties confirm the validity and enforceability of the 1990s Settlement Agreements, and, in addition, agree to the following, releases. waivers and additional agreements: a. Mutual Release of Setback Restriction. Grosz, Rodell and Zale, for themselves and their successors and assigns, hereby mutually release any right of enforcement against the Zale Property and the Rodell Property (but not any portion of Lot 9 not within the Zale Property and the Rodell Property, if any) of that certain restriction ("Setback 6 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 7 OF 18, Janice K Vos Caudil~Pitkin County, CO Restriction") in Deed recorded in Book 188 at Page 2 of the Records for Pitkin County, Colorado and reaffirmed in tlle 1990s Settlement Agreements which reads as follows: NO STRUCTURE SHALL BE PLACED WITHIN FIFTEEN FEET FROM THE EAST BOUNDARY OF LOT NUMBER NINE (9). b. Landscaping on Zale PronertÂ¥. As of the date of this Agreement, all landscaping on the Zale Properly has been removed except for 3 Bristlecone Pines. 3 Aspen Clumps, and 2 unknown other trees in the southeasterly corner ofthe Zale Property ("Existing Trees"). The Parties hereby agree to the following waiver with respect to the Existing Trees and the following additional agreement with respect to any new landscaping to be planted on the Zate Property subsequent to the execution of this Agreement ("New Landscaping"): i. Existing Trees. Grosz and Rodel], for themselves and their successors and assigns. hereby waive their right to enforce the 1990s Settlement Agreements' height restriction for landscaping on the Zale Property with respect to those Existing Trees that are healthy trees. Unhealthy trees must be removed prior to implementing any land development plan for the Zale Property, iii. New Landscaping. Zate, for himselfand his successors and assigns, hereby agrees that no New Landscaping shall be planted on the Zale Property which fhall be capable of exceeding 7967 feet in elevation, as determined from a NVAD88 elevation of 7963.13 feet on the top ofthe rebar & cap LS #19598 monumenting the northeast corner of said Zale Property. c. Retaining Walls. The railroad tie retaining wall that is the subject of the 1 990s Settlement Agreements ("Existing Retaining Wall") is constructed approximately along the boundary line between the Zale Property and the Rodell Property and also along the westerly boundary line of the parcel identified as Parcel D in the 1990s Settlement Agreements ("Parcel D"). The parties acknowledge and agree that the purpose of the Existing Retaining Wall is to create structural stability in the ground between the Zale Property and the Rodell Property and Parcel D. Zale has altered the Existing Retaining Wall, in violation of the 1 990s Settlement Agreements, by removing the lowest tier of the three-tiered section of the Existing Retaining Wall which marks the westerly boundary line of Parcel D. The Parties hereby agree to the following waiver with respect to the Existing Retaining Wall and the following additional agreements with respect to the completion of the partially constructed separate retaining wall or any new retaining wall which may be constructed on the hite Propeny (collectively, the ' New Retaining Wall"): i. Existing Retaining Wall. Grosz and Rodell, for themselves and their 7 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 8 OF 18, Janice K Vos Caudill,~tkin County, CO ~ successors and assigns. hereby waive enforcement against the violation ofthe 1990s Settlement Agreement with respect to the Existing Retaining Wall that occurred prior to the execution of this Agreement so long as no further modification, alteration or destruction of the Existing Retaining Wall occurs by Zale. or his successors and assigns. or that may occur as a result of the prior alteration of the Existing Retaining Wall by Zate. This waiver shall in no way be construed as a waiver of any right o f en forcement against future modification. alteration or destruction ofthe Existing Retaining Wall by Zale or by the same resulting from Zale's prior alteration ofthe Existing Retaining Wall. ii. Ncw Retaining Wall. Zale may. at his expense, construct a New Retaining Wall on the Zate Property so long as (1) no component ofthe New Retaining Wall encroaches into the Existing Retaining Wall. Parcel D. the Grosz Property or the Rodell Properly; (2) no easement over, under or on the Grosz Propeny or the Rodel] Property is required to construct the New Retaining Wall: and (3) Grosz and Rodell are given the opportunity to review the New Retaining Wall design and construction plans with engineers. prior to its construction, to confirm that the New Retaining Wall wil] not impair the structural integrity of the Existing Retaining Wall and that it will comply with the provisions of this paragraph d. Covenant Regarding Waivers. The parties agree that the provisions of the 1 990s Settlement Agreements remain valid and enforceable despite the waivers of prior violations contained herein, and other than the Parties' mutual release of the Setback Restriction, the waivers herein shall not be used to avoid the obligations of, or to prevent enforcement against future violations of, the provisions of the 1 990s Settlement Agreements or the additional agreements contained in this Paragraph 6. e. Third Pattv Beneficiaries. The owners of Lot 5 of Promontory Subdivision (other than Grosz. who is a direct beneficiary) are intended third party beneficiaries of the restrictive covenants in this Paragraph 6. 7. 7 respass Claims of Rodel] Against Zale. Zale acknowledges that during construction in or around January o f 2007, certain portions of a retaining wall being constructed on the Zale Property were also constructed onto or into the Rodell Property and constituted a trespass. As a result. in the Litigation, Rodell filed claims for damages and breach of a court-ordered stipulation regarding construction activity during the pendency of the Litigation. Rodell discloses to Zale herein that Rodell's property insurance carÂ·rier, State Farm Fire and Casualty Company ("State Farm"), subsequently reimbursed Rodell for repair of the immediate damage caused by the trespass. While this Agreement is intended to settle the trespass and breach ofcourt-ordered stipulation claims in the Litigation (Rodell's Fifth and Sixth Claims for Relief) as part of'the overall settlement containedherein. this Agreement does not in any way compensate Rodell again for the damage for which Rodell already received payment 8 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 9 OF 18, Janice K Vos Caudil~itkin County, CO ~ from State Farm and for which State Farm has retained subrogation rights. Nor does it waive any of Rodell's rights to pursue future action for damages in the event of destruction of the Rodell Property that can be established to have resulted from the trespass described herein. To the best ofRodell's knowledge. however, as ofthe date of execution ofthis Agreement, there are no known but previously unasserted claims due to the trespass. 8. Land Development Approvals for Zale Property. A residence which was located on the Zate Property was demolished in the Fall of 2006 pursuant to Demolition Permit No. 0087.2006.ARBK. Building Permit No. 0128.2006-ARBK (the "Building Permit") was issued on March 19, 2007 for the construction of a new residence which was never constructed. Zale hereby confirms that this Building Permit has expired and that any future building permit shall not issue, under any circumstance, for the development plans that were approved for construction under that Building Permit. Zale, for himself and his successors and assigns, agrees to the following restrictions regarding any new development plans submitted to the City for the Zale Property: a. Representation to Citv of Intent to Comply. Zale, for himself and his successors and assigns, hereby agrees to present evidence of all written and recorded restrictive covenants and other agreements burdening the Zale Property for the benefit of the Grosz Property and/or Rodell Property to the City at the time any application for development of the Zate Property is submitted to the City for approvals. b. Representations to Grosz and Rodell of Intent to Complv. Zale, for himself and his successors and assigns, hereby agrees to notify the owners of the Grosz Property and the Rodell Property prior to submitting any new development plans, and ongoing revisions thereto, to the City for approval, and shall allow them the opportunity to review the same for compliance with the restrictive covenants and agreements that burden the Zale Property for the benefit of the Grosz Property and/or the Rodell Property. 9. New Construction Activity. Zale, for himselfand his successors and assigns, covenants and agrees to the following with respect to construction activity on the Zale Property: a. Protection from Construction Dust and Debris. Zale, for himself and his successors and assigns, agrees that any construction on the Zale Property shall not proceed without adequate protections in place to prevent construction dust and debris from being deposited onto and/or damaging Parcel D, the Grosz Property and/or the Rodell Property. 1n the event such dust and debris is deposited on Parcel D, the Grosz - Property or the Rodell Property during construction activity on the Zale Property, the owner of the Zale Property agrees to pay for or reimburse the owners ofthe Grosz Property and/or the Rodell Property for the costs of clean up of such dust and debris and/or repair of any such damage. In the event Zale refuses or fails to make such reimbursement, the owners of the Grosz Property and/or the Rodell Property shall have the right to place a lien on the Zale Property for such amount ofreimbursement. 9 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 10 OF 18, Janice K. Vos Caudill, /Atkin County, CO ~ 10. Dismissal of Claims. Upon full execution of this Agreement, the Parties shall execute a stipulated motion for dismissal ofthe following claims of Grosz and Rodell against Zale and counterclaims of Zale against Grosz and Rodell in the Litigation: a. Grosz and Rodel] Claims in the Third Amended and Supplemental Complaint Filed January 9.2008: i. All ofthe First, Second, Fifth, Sixth Claims for Relief, without prejudice. ii. All of the Seventh Claim for Relief, with prejudice; provided, however, that any portion of this Claim that relates to any portion of Lot 6 and Lot 9 ofthe Promontory Subdivision not within the Zale Property will be dismissed without prejudice. iii. All of the Third and Fourth Claims for Relief, except any claims related to the One Story Restriction Claims, with any portions of the Third and Fourth Claims for Relief related to the 1990s Settlement Agreements to be dismissed without prejudice and any portions thereof related to the Benedict Height Restriction, the Benedict Single Family Dwelling Restriction, Setback Restriction and the Barnard Height Limit to be dismissed with prejudice: provided, however, that any portion of these Claims that relates to any portion ofLot 6 and Lot 9 ofthe Promontory Subdivision not within the Zate Property will be dismissed without prejudice. b. Counterclaims of Zate in Zale's Amended Answer to Third Amended and Supplemental Complaint. Counterclaims and Cross-Claims Filed Mai' 23.2008 i. First Counterclaim for Specific Performance and Injunction regarding the Height Restriction (identified herein as the Benedict Height Restriction) against Grosz only, with prejudice. ii. Second Counterclaim for Specific Performance and Injunction regarding the Height Restriction (identified herein as the Benedict Height Restriction) against Rodell only, with prejudice. iii. Fourth Counterclaim for Declaratory Judgment against Grosz and Rodell, with prejudice. 11. Representations by Zale. Zale represents that the following statements are true and accurate as of the date of full execution of this Agreement: a. That Zale has not entered into or reached any type of settlement of any claim(s) involving the One Story Restriction that is the subject of the One Story Restriction 10 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 11 OF 18, Janice K Vos Caudil**itkin County, CO ~~ Claims which Zale has against any title company insuring title to the Zale Property. b. That Zale is the sole owner of the Zale Properly. c. That Zale is not under any verbal or written contract, bargain, obligation or promise to sell, transfer, gift, convey, or in any other manner dispose of any or all of his interest in the Zale Property. d. That Zale has no present intention to sell, transfer, gift, convey, or in any other manner dispose of any or all of his interest in the Zale Property. 12. Miscellaneous. A. Further Assurances. The Parties shall cooperate fully with each other and execute such further instruments, documents, and agreements, and shall give such further written assurances, as may be reasonably requested by the other party to better evidence and reflect the transactions described herein and contemplated hereby, and to carry into effect the intent and purposes ofthis Agreement. B. Amendments. Unless a particular amendment would affect only two of the Parties hereto, or their successor and assigns, this Agreement may be amended only by an instrument in writing signed by all of the Parties hereto, or their successors or assigns. C. Severability. If any term or provision of this Agreement shall, to any extent, be determined to be invalid or unen forceable by a court or body of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term and provision ofthis Agreement shall be valid and enforceable to the fullest extent permitted by law. D. Captions and Pronouns. The captions o f the sections of this Agreement and pronouns used in reference to the Parties are for convenience only and shall not be deemed to be relevant in resolving any question of interpretation or construction of any part ofthis Agreement. E. Counterparts. This Agreemeni may be executed in counterparts, each ofwhich shall be considered an original, and all of which together shall be deemed to be one and the same instrument. F, Applicable Law: Construction of Aereement: Attorneys' Fees. This Agreement is entered into in the County of Pitkin, State of Colorado and it will be governed in all respects by the laws of Colorado. In the event of litigation arising from the interpretation or the enforcement of any of the terms or provisions of this Agreement, the Parties hereof agree that jurisdiction and venue for such litigation 11 RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 12 OF 18, Janice K. Vos Caudill ~~tkin County, CO ~ shall be in the courts of Pitkin County, Colorado and that the prevailing party shall receive an award ofreasonable attorneys' fues. G, Binding Effect. This Agreement shall bind and benefit the heirs, personal representatives, successors. and assigns of each party and shall benefit each other person referred to in this Agreement. H. Organization: Authority; No Conflicts. The Parties represent to each other that the execution and delivery of this Agreement has been duly and validly authorized, and all requisite action has been taken to make this Agreement valid and binding upon the Parties. The Parties further represent to each other that the consummation of the transactions contemplated by this Agreement will not constitute a default or result in the breach of any term or provision of any contract or agreement to which they are a party. IN WITNESS whereofthe Parties hereto have executed this Agreement as of the day and year stated in the notary clauses for each o f their signatures. r (SIGNATURES ON FOLLOWING PAGES) 12 RECEPTION#: 560509, 0202/2009 at 10:00:11 AM, 13 OF 18, Janice K Vos Caudil~itkin County, CO ~ Colleen Grosz 0 STATE OF ILLINOIS ) ) SS. County of Cook ) This document was acknowledged before me on this Â£29"day of June, 2009, by Colleen Grosz. Witness my hand and official seal. My commiss\on expirest /1 ~09~20/1 aulu.Dh*ul , *7;B77727-2.SENT.7 Notary Public ' ANDRIANNAD. FLORES 1 NOTARY PUBUG, STATE OF ILUNOIS 3 RECEPTION#: 560509, 07Z22/2009 at 10:00:11 AM, 14 OF 18, Janice K. Vos Caudill ~~~tkin County, CO 04 0/90 Timothy C. Rodell 44 u) 1 Madorie~11. Rodell STATE OF COLORADO ) ) SS. County of ~t 18 - ) This document was acknowledged before me on thi~-triday of June, 2009, by Timothy C. Rodell. ANDREA CROUSE Witness my hand and official seal. NOTARY PUBLIC ~ STATE OF COLORADO ~ My commission expires: My Commission Expires 12/31/2011 ' 9 / Notary Public STATE OF COLORADO ) ) SS. County of 244 6- 1 This document was acknowledged before me on this~ ~~ day of June, 2009, by Marjorie M. Rodell. Witness my hand and official seal. ANDREA CROUSE 1/' 1 NOTARY PUBLIC STATE OF COLORADO My commission expires: _ My Commisdon Expires 12/31/2011 potarf Public RECEPTION#: 560509, 0202/2009 at 10:00:11 AM, 15 OF 18, Janice K. Vos Caudillitkin County, CO ~ MILTON ZALE TRUST dated December 18,1980 By: JM I k D,- Miltoif Zale, T~stee STATE OF COLORADO ) ) SS. County of 7,+ki n ) This document was acknowledged before me on this EX/ day of June, 2009, by Milton Zale, Trustee of the Milton Zate Trust dated December 18,1980. Witness my hand and official seal. My commission expires: CO- It-201( AÂ« 4 Ndiafy'Publict - ~~ 5487 8 f AMY u i BAPP 15 RECEPTION#: 560509, 07422/2009 at 10:00:11 AM, 16 OF 18, Janice K. Vos Caudill ~tkin County, CO ~ CONDOMINIUM UNIT A, LAKEVIEW TOWNHOME CONDOMMIUMS, according to the Plat thereof recorded March 3, 1994 in Plat Book 33 at Page 92 and as defined and described in the Condominium Declaration for Lakeview Townhome Condominiums recorded March 8,1994 in Book 743 at Page 763. County of Pitkin, State of Colorado. 1 6 EXHIBIT - ) L=LJ (Grosz Property Legal Description) RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 17 OF 18, Janice K Vos Caudi~Pitkin County, CO ~ j EXHIBIT A tr A parcel of land Hituate within a portion of Lots 7 and 9, Block 1, Promontory Subdivision, City of Aspen, Pitkin County, Colorado, described as follows; Beginning at the Northeazterly corner of Lot 7, Block 1, of said Promontory Subdivision, said point being on the Westerly right-of-way of Midland Avenue, said point also being a rebar and cap found in place; thence N 77021'33â€¢ W along the common property line of Lot 7 and 5, Elock 1, Promontory Subdivision a distance of 111.49 feet to a point on the Westerly line of the Easterly 15.00 feet of Lot 9, Block 1, Promontory Subdivision, â€¢aid point being a rebar and cap found in place; thence along said Easterly line S 04Â°35'38" W a distance of 89.38 feet to an existing wood fence, thence along eaid fence the following two (2) courses: S 87Â©00'10â€¢ 2 a distance of 4.44 feet; thence S 50Â°49'49" E a distance of 28.10 faet to a point on the Southerly line of eaid Lot 7, Block 1, Promontory Subdivision; thence along said Southerly line 6 77Â°45'35" E a distance of 22.11 feet to the Southwesterly corner of an exception parcel described in Book 457 at Page 136, Pitkin County Clerk and Recorder's Office, said point being a rebar and cap found in place; thence along said exception parcel the following two (2) courses: N 51Â°04'45' E a distance of 51.35 feet to a rebar a cap found in place; thence S 77Â°33'49" B a distance of 16.00 feet to a point on the Westerly right-of-way lina of Midland Avenue; thence along said Westerly right-of-way to following two (2) courses: N 15Â°23'40' E a distance of 35.90 feet; thence N 07Â°10'220 E a distance of 24.13 feet to the point of beginning. TOGETHER WITH that certain parcel of land as set foi 'th in Quit Claim Dead recorded December 13, 1991 in Book 664 at Page .39. EXCLUDING FROM the above described real property that certain parcel of land described in Quit Claim Deed recorded December 17, 1991 in Book 664 at Page 710. COUNTY OF PITKIN, STATE OF COLOR?l- 0. 347125 9-742 P-3,3 02/19/94 03~40 M 4 OF 4 ~ EXHIBIT ~ (Rodell Property Legal Description) B - RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 18 OF 18, Janice K Vos Caudill, ~kin County, CO ~ A parcel of land situated in Lots 6 and 9 of thc PROMONTORY SUBDIVISION, City of Aspen. County ofPitkin, State of Colorado, said parcel being more particularly desonbed as fbllows: Commencing at the Northwesterly corner oftheFirst Amendment to the Hobgood-Bums Subdivision Exception Plat recorded in Reception Number 427535 said point also being on the Easterly right-of-way of Park Avenue. the Point of Beginning; thence leaving said Hobgood- Burres Subdivision N05Â°03'00" W along said Easterlyright-of-way a distance of 43.39 feet thence continuing along said Easterly right-of-way N10Â°04'00"W a distance of 71.56 feet to a point on the NortherIy boundary of thatparcel described in Reception No. 375895; tbence leaving said right-of-way S75Â°06'00"IE along said Northerly boundaly, a distance of 67.31 feet to a point on the Westerly boundary ofsaid Hobgood-Burres Subdivision: theme leaving said Reception No. 307Â°02'58"W along said Westerly boundary $14Â°02' 15"E a distance of21.13 feet; thence continuing along said Westerly boundary SllÂ°56'47"W a distance of41.93 feet; thence continuing along said Westerly boundary N75Â°06'00"W a distance of 40.93 fect to the Point ofBeginning. County ofPitkin. State of Colorado 'I=-=EXHIBIT ~ 1 (Zale Property Legal Description) .. \ - -\X J \. ASPEN $ â€¢ 9. PROJECT COLORADO 1 SITE Gi 1 Silver Ki8: Dr a 2 R,co St 3 N Sprim: St 4 Cotion-od La 5 Al= Ave 3, 6 Oak Ln 7 Maple La 5 9 M.,cot. Ln 1 Midland Park M 6 10 Smunter Grove Ct d " Ald,nore ct 12 Rlver,ide Ave 13 Date Ave 4. 1/4.-14 i 0 14 Midhed Ave t.-7./.8:Paill/941 13 Mayflower Ct *7990/-13'Ppi / 9 44'Â£ 1.7 / 6 / *div B ' 2 4. 1 _.-r 0 " . lec~ &\ 1 0. 131/teL---,<9 Va M $ 1 1 , .. 190 PARK AVENUE RESIDENTIAL DESIGN STANDARD VARIANCES ADMINISTRATIVE APPROVAL This land use application is submitted in request oftwo administrative variances to the City of Aspen Residential Design Standards for the new construction of a single-family residence at 190 Park Avenue. In 2006, the City issued a building permit to this Owner for the construction of a larger residence on the site. During the site excavation and soil stabilization work, it was discovered that the project did not comply with some obscure deed restrictions that were established prior to 1960. The project was halted at that time. Since then, the Owners and neighbors have developed legal agreements that modify and clarify the deed restrictions. Two important ones that have influenced the design of this proposal are 1) the residence shall be limited to one-story of enclosed living space and 2) the residence shall not exceed elevation 7967 excluding chimneys. As a result the proposal is a one-story structure set into the sloping topography of the site and is raised above the street level on a concrete base. An unenclosed carport is created at the south end of the property to provide on-site car parking below the raised one-story house. This submittal seeks an administrative approval lor the carport as proposed. We request a confirmation that the car parking area below the raised one-story house be considered a carport by virtue o f being unenclosed and, as required by the Residential Design Guideline 26.410.040.C.2.b, having the front-most supporting column of the carport set back at least 10 feet further from the street than the front-most wall of the house. The plan in drawing A2.1 and the sections in A4.3 show that tile raised one-story residence above the parking area is cantilevered 10 feet beyond the front-most suppoit or foundation walls. Finding that the proposed design satisfies the carport requirement eliminates any need for a variance on this topic. In the event it is determined that the parking area is not a carport, a variance may be granted on the basis that the proposal is consistent with neighboring responses to the Residential Design Standards for garages. Photographs of the neighboring residences on Park Avenue illustrate that there is no compliance with the garage requirement among any ofthe houses on the east side of the street. Two properties - 110 Park Avenue and 214 Park Avenue - have no garages at all and parking appears to be in the Right-of-Way. The other three properties - 100 Park Avenue, 130 Park Avenue and 1203 Hopkins - have garages that are not set back the required 10 feet. The proposal is in conformance with the established character of the neighborhood. This submittal also seeks an administrative approval for a variance from Residential Design Standard 26.410.040.D.3.a which prohibits street -facing windows between 9' and 12' above the finished first floor. It is our understanding the purpose of this requirement is to establish an appropriate scale for neighborhoods and to enhance an observer' s ability to discern this scale by understanding whether a house is one or two stories. Our proposed design is driven by the legal limitation of one story o f living space as described above. The elevation illustrations on drawing A3.1 and the Street View rendering show floor-to-ceiling windows on the street-front fagde. The southern mass has glazing from the finished first floor to a ceiling height of 10'. The northern mass has glazing from the finished first floor to a ceiling height of 12'. Despite the extent of glazing, the design of the house is a strong expression of the raised one-story concept. Visible horizontal elements clearly define a raised floor plate, a ceiling plane and the single story o f living space in between. The natural berming o f the grade against the partially exposed foundation wall also serves to reinforce the perception of building size and scale for the passing observer. The result is compliance with the intent o f the Design Standard. .... 1 FOUND NO. 5 REBAR & YELLO* PLASTIC CAP 1 +Ij 319 site bench mark g e.4 -F I fE= 1 zee S75-06 HCE LS 40 19698 0 1' ABOVE GRADE ELEVAn* 796113 ~ 0 ./ .-- j*Â¥--LANDSCAPE LU '. ~~~ 94\ ftff- --7 1 -i---~-Â»- TIUBERS N O ZE 1 11 31 , '/ ''/ -- 796 f/ Z %2 LU co f \ \ Â¢\ \\111(1< C ' 1\ 0 1 . \ 4 7 1 M M OPEN SPACE PARCEL /# \ BK 689/PG 805 EXHIBIT D LU Q ~ ~,1~*1~ ~~ r .~4~4~r238FG 820 EXHIBIT D (P833) -1 2< V J f \ 4% \ 4 a: g : ki,~fac 4 1 4\X J/ FOUND NO. 5 REBAR LU 0 00 0- 0- & PLASne CAP \ Â»a 2 I RE~IG \\ 1':ltitt.'01 1 1 1/ /1. \ -4 Q 4: tty RALLS ~| ..14* 211 26 \ EN A \\\I 1\ ANDSCAPE '14,\ nUBERS 99Â«4 4 1 ' 4 \ 1Â·- ~ Â·2if-#% 1.-24.1, ; 1.1 ~ .1.1 '.t- . i.- e, ff* 4 9%13 -:,1794 1 \ \ 4.1 I \ \/*' 1 6-4.11 ..6 .'f;,L/~Â· ' i â€¢ 'A't i,, -FOUND PK NAIL & SHINER / \ \ 1 -- ' 1 --9-9 \..41.41 / 1 *00[) RETAINING *ALL U 6 - / LS NO. 25947 N ff ' Â«10--4.-T 7 y ...ni , 1 CIa 0 - - - m m->--r Jt~rt,1 1 ' el / / - -\ A \ 3,/,4/~rf),7 'WARL:le' 7.-6. - i ~ ~'1 ~ ~~-~T-~~~~*~12- , ~ ~~ ~ 1 .4- T/ 614-02'15"E 1 SET NO. 5~ REBAR & J 1 r--- 8--9 -7- 301 21.13' . m A'.Â·: 4 ADJOINER i YELLOW pLAsnc dAp 1 DECK 1 UARKED PROP CORN~R ~\-HCE LS *91959*1 0- ALORADE L-- \-jQL. - -~~ #% " 1~~ <~ \11*PLANTER - S FOUND PK NAIL 4-44 \ < I \ \O 3 LS ~~40~947 \L 4 Â·54/.4:.7 . 1110 9 r RETAINING *ALL - F 0 .,=1*,54 ~ I Lr~ I 11 ADJOINER r -1 1 4 + t 4. 1 7937 LA < STAIR ENCROACHUENT *A ,Â·.. 31 1 4 / ' ,+ULANDSCAPE D _ i s tfmt; 2'LPT ~\ - A , U \ nUBERS - 291 - i //3 41. lf \ 303634 \11 1 A \/ /1 h Â£ -i/- t..1 -t RETAINING WALL , .7 1 2.* r ENCROACHUENT . 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SSLI C'll Diall Trle .../..............................P).'dimill ELEVATIONS * T.1*9 -1 -_ 2-,1.3--Â·--_ -Â·LÂ·L-_ c,_ E==TEr - Â·Â·-=-- ..3Eellâ€¢F=111==11-1.11= _ (3h NORTH ELEVATION (4h NORTH ELEVATION A3.3 ~ SCALE: 3/16"-1'-0' ~ SCALE : 3/16Â· = 1'-0 303NaIS3hl 31VZ N3AV MUVd 06 L OJAH]S]U SLHS,811Â¥ 01]~3,411,4918. 00D DNIOnlON, SlÂ¢491~101AHOR;Jk,8,HlO Tlv 01,9 (801111Â¥19, /AV I NUm,00 119141141 IN â€žÂ¥HS J a sl:) 11,140~rf . 9,0]rllS 'O USIO]11,4OMÂ¥ 8 01(]nle JO= 11.I N]11121* 401*J J,41 100+~11 .1.3 80 0]SM ]9 1Â¥1'I NOILVIi,>10 'NI SIHI !,1 1,4,0,ION 3,1.191,1H1MÂ¥,10!rln ls Jo i ly] Jo,W 11,1 9, 1,131,030(1 .141 No o]14Â¥IN J . ~ NI NDIQÂ·(] ONÂ¥Noli~WOJN, ]11.1 :> cl sion,lwoev g o,(IM IR I. 1 8146 0 6,026 lau Sloel!40J eqo,pnls . M.M 0.' toi atins...# .p./,6 .... FREEDRA/%/FILL - f~t~Tl~.C muSH -, EL~:ll5Â£Â·IN' *...... | GREENRE TOP EX.T.G -6, 1 *%/Il - 40â€¢Al.â€¢INâ€¢#04*#U,1,#"m"&8*'" _ . _ * T COPING AFfAINING./1 - FInt 117<r .6, i. DECORAUVECONCRETE -'*I ~ 4 _ A *8.soilir WALL 1LU 11(.. EXISTING GUSE --4911//d CEPâ„¢ U.KNOIN La~~ - CIE] BATH \ GUEST BEDROOM 9 e*fill= 1 -1 -- - 21 1 EtÂ»,1=34--- , 2 1 -- fil-1--7 2 - 12 5 1 / 1 -2 \ / 7--- 4 = __ I . /FF - " 1 111 - .... C. 4,7951 _ 0 ..11' DU h ELEâ€¢ 960 cE.*)MIRTM - W oo Z 9 LCHL rE RE TAINING 4R i ~ EXISTING CRADE EM = 7 -m=-9* -1 9 . 1 FIU' GRADE Of i < UJ / 1 4.SL,8 0- 0- ELLVÂ·89Â·u-=7% LL] O 0 44-{J--- rit-t!~'f@f i,j --~ 5 - .:-1,Â·_-6*~-~~.25 L'Jaivs,Â£5*V -1 3 <C N OPTION 1 (PERMANENT MICROPILE WALL (1 h BUILDING CROSS SECTION ~ SCALE: 3/16' - 1Â·-0Â· AS A BUIDLING FOUNDATION WALL / DECORATIVE WALL TO BE POUR CLOSE R. 0 CD -C .+Soqa!Â·~9â€¢CKCtL - EKISâ„¢IG B Jg/ 4Â¢~14, 0 : r,?9 AS# 4 * /Men | 3.EENUI T~=>En6-_~frjeric#/22 RE...SWAL__ 1 + C.INC I Lf. I DEEDRATI,â‚¬ DEÂ»ICRE-5 --*2' 1--._ _ ,- 4AL 711 =412: 1 4.OPok . BATH 1~ ~l|| GUE ~EggCOM A 11 1'!1 -/ 111 . U PERMANEN' 9~CROPILE *ALL - %:'. 1 # .-p: 4, I'>c.Â· l 7. - l' IIITI-- , .'der.':s:Zi'.-+ 1%1*'baliLE-,,.:Â»t '->143â‚¬1.' . - - L. 0 3 10"Ir ' - -- = 11 11 ELcV JA~O . -- 11- ... ..../.C--1 - ......ADF PROPOSEE . 11.tSH Gl<AUL DD PROGRESS SE- 8-2%-2.11 - --ft-* DD PROGRESS SET 7Â·28-2011 Lf =1 -, t. 1 SOCOWPLET,6-21-2- 1 / 4/ m LUV:dy.-NIC Rev Date 10-6-2011 ConstrueÂ·lon iss,-eeole: [harÂ·.t g TiÂ· I BUILDING SECTIONS Sheel I OPTION 2 (PERMANENT MICROPILE WALL A4.3 TO ALLOW FOR CONCRETE FOUNDATION WALL (13 BUILDING CROSS SECTION d) SCALE : 3/16Â· = 1'-0" TO BE POURED 3O3NDIS3k:1 U All H. 'LI' l y U ]21,1 -Old L. t./IL' r.1 Ll'LM. Ill'/.SJ//3/1/11/ 0./ 10!/1.1Â¥18,/.1.0/,4.- /5/1/I ll ..11â€¢: .ir/Sll]11.....(JI'll. 0/.0.1/3..901(]11. JONDISS%3,/3111/M lOni:/1/11.0,/14{17!003.0 01(fl ]111./NULÂ¥/HOINIRIN. .' Ii'rill .' 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LU 4 3 / t><1 , 4-49111 1 ~ 1 ////// - I / 1 1 / ,/ az // 1 -1,11- 1 - i J / . 9 / P -Ill / 1 1, \ m 7-6 1 1 ~ // Or[N SPACE PARCEL 0 4 \ \ \ \1\ <\\\ \ / iFi li \ lizo cail ~ d Ii' i .2 38/PG 820 EXHIBIT D (P833) LU : 131( 689/PG 805 EXHIBIT D ,1 / /21\ \ f i \\\/1 + 94 - / e\ 1 I .0'ru CE % M \ 0 \ / \\ \ r 1 \\ - \ f /1 0-0- - \ ~- ,/ FOUND No. 5 REBAR LU o co f li\' 1, i' j 1 -lÂ«~ , 1 L A I & PLASTIC CAP 2< \ la V ILLEGIBLE Il fuzzl E:4 % 1 \ 1 / -/1 -1 1\ 1 \ .6 \\1 1 iii A -=Â«Â»1/ .,~IC < -,40 ditix \ \ 4 - \\~ WALLS N \ \4\ \ \ \ 3\ \ \\\ 1 - \ OS \\\\L\\ - /All\Â£ \ I if 1 1*Ral \ 1 .1 \ 7974 1 \ \ 16 / 11 14 2\ \ \ - DALE 4 - \ 1\ EAVENUE .0 1:Or-1 i .- 04 0 / 1 \ \4 \ / Â· /3~ 1 1 \ FOUND PK NAL & SHWER 1- / 1 ..3 U / ~--:Â« 1\ / / LS 40. 26947 IN I . 1 *OOD RETAINING *Au - - F'e?...'r 1 / - \ 1 37 .1 :.C\\ / < 490 CO 1 0 ' - S14'02'15"E _ i No. i REBAR \W 21.13' 0 LO# nc , DECK L. M D R \ PLANTER LS 19 1 \ --- 0 1.Â·fff *2 / C \ Irnll Â· 3 t...2 FOU4) PK NAIL --2-irs: i AblE< 0 1 & 94'NER LS NO. 28947 1 i %,1~24 / i 'ft \ 1 I iN *000 /9 i 94 6\ O 0 Z 1 43. I -' RE TAINe WALL . L __ 11- O \ di i ~1 ---91UU L~ ADJOINER - 0 --4-- i v 1 1 1 --1 1 1 -1111 9-1 11 -0 1 1\. -0 7 ilii Â·~ Â·1111 *) 7937 1 - '* ' 1 \ 11 114. 012=5 /=a \ ill 11 :u. P 4 , STARR ENCROACHUENT 224 1,7 -=- --* 4 i AGREEyENT PER (LT 1\ 0 / 4. 1 F 'ame . 1 -1 -F =111 -1 1 y RECEPTIoN No. 1- /0- 4 4 - 1 4,11 IP 303534 / 4 /1 . \ S \ 1 , 1// 1 --7943- - 1 1 1 9. 1 / \ \ , RETAI 1 1 \ 1.% I i \ -41 ENCROACH / 1 i t - r j AGREEÂ¥ET \ / RECEPTION o. 14 43 3-t / 1 A 1/ f/ .' :. , /k- 1/ 1 2/ DD PROGRESS SET 8-29-2011 DD PROGRESS SET 7-28-2011 79.06 bo ~ 4 -I- \ SD COMPLETE 6-21-2011 4 4 40* KLL 93 W -- \ -03 Rev. Date: 10-6-2011 1 j 21 -n FO* Na 4 REBAR Construction POINT OF BEGINNING 7 CONCRETE ~ 4 ' A A HELL \ U' BELOÂ¥Â¢ GRADEA\ issue date. FOUND PK NAIL & SHINER DRIVE . 6 Drawing Title: *41 #4QI ALI 41 . 4 0 ~1 SITE PLAN \ FOU4) PK NAIL ~1 Sheet #: & SHIHER LS Na 25947 111 RETAIN *~ki. N (1 -)SITE PLAN O Al.1 <~-_~,0/ SCALE : 1/8" = 1'-0" 00 .......... 303N 1.L91.8 0 (0 82*6.9 ~16 leu . sioell40JeqolpT 03Ay)932, 81HOIB ltv 013Â¥3,411HOIBAdOO ONIOn-IONI 'St,lely aBAht393hl 83Kt.O11Â¥ ONV Ablainly.LG MÂ¥-1 NOPK/NOO 11Â¥ NIV13 bl 11VHS '0'd 8103.LIHOUV 8 Olan-LS '0'd e.1.031!HOBV 8 Olanle 30 NOISGIAWad NalltkIM kIOINd 3HllnOH.LIM 03:dOO HO 038(1 38 AVE NOILVWBOdNI GIH1 301.HVd ON Â·0Â·d 8103.LIHONV 8 Olanle 30,UWadOWd 3,41 9, 3.Nak,In000 8,Hl NO 03NIV1NOO iN31NI NDIGBO ONV NOI.LVINHOJNI 3H1 '0'd Gl.331*HOSIVE Olan18 & 102 00'ed e Votel,nseoeidepuej .. ATTORNEYS & COUNSELORS AT LAW JEROME PROFESSIONAL BUILDING 201 NORTH MILL STREET, SUITE 201 ASPEN, COLORADO 81611-1557 Sherman & Howard L.L.C. TEI.EPHONE: (970) 925-6300 FAX:(970)925-1181 OFFICES IN: DENVER , COLORADO SPRINGS Â· ASPENÂ· VAIL SIF,AMBOAT SPRINGS Â· PHOENIX Â· SCOTTSDALE Â· RENO Â· LAS VEGAS Â· ST. LOUIS Curtis B. Sanders Office Number (970) 925-6300 Ext. 214 E-mail: csanders@shermanhoward.com November 9,2011 City of Aspen Community Development Department 130 South Galena Street Aspen, Colorado 81611 Re: 190 Park Avenue, Aspen, Colorado; Milton Zale Trust Agreement Dated December 18, 1980; Certificate of Ownership Dear Sir or Madam: I am an attorney licensed by the State of Colorado to practice law. This letter shall confirm and certify that Milton Zale Trust Agreement Dated December 18,1980 is the owner of certain improved real property located at 190 Park Avenue, Aspen, Colorado 81611, and legally described on Exhibit A attached hereto (the "Subiect Property"). For your convenience, a copy of tlie vesting deed confirming ownership of the Subject Property is attached as Exhibit B. This letter shall further confirm that as the owner of the Subject Property, Milton Zale Trust Agreement Dated December 18,1980 has the right and authority to file and pursue land use applications, variance requests, and other requests with the City of Aspen with respect to the Subject Property, and that Milton Zale is the Trustee of the Milton Zate Trust. CSincerelyT- --Gtwte']3:-*mers Enc. LITIGAT]ON\3397293. I - = .. Exhibit A Legal Description of Subject Property A parcel of land situated in Lots 6 and 9 ofthe PROMONTORY SUBDIVISION, City of Aspen, County of Pitkin, State of Colorado, said parcel being more particularly described as follows: Commencing at the Northwesterly corner of the -First Amendment to the Hobgood-Burres Subdivision Exception Plat recorded in Reception Number 427535 said point also being on the Easterly right-of-way ofPark Avenue, the Point ofBeginning; thence leaving said Hobgood- Burres Subdivision N05Â°03'00" W along said Easterly right-of-way a distance of43.39 feet: thence continuing along said Easterly right-of-way N10Â°04'00"W a distance of 71.56 feet to a point on the Northerly boundary of that parcel described in Reception No. 375895; thence leaving said right-of-way S75Â°06'00"IE along said Northerly boundaiy, a distance of67.31 feet to a point on the Westerly boundary ofsaid Hobgood-Burres Subdivision: thence leaving said Reception No. S07Â°02'58"W along said Westerly boundary 914Â°02'15"E a distance of21.13 feet; thence continuing along said Westerly boundary Sl 1Â°56'47"W a distance of 41.93 feet; thence continuing along said Westerly boundary N75Â°06'00"W a distance of 40.93 feet to the Point of Beginning. County of Pitkin, State of Colorado 2 LITIGATIONO397293.1 .. Exhibit B Copy of Vesting Deed CITY OF ASPEN CITY OF ASPEN EXEMPT FROM HAETT EXEMPT FROM WRETT DATE REP NO. r.rre REP. NO. 21-7 10 (0 lu# 687<' 2 (loG tut Â«4 520652 1 11!18111111#11 1111 Unlilll# mil 02/07/2006 03:55 Page: 1 01- 5 JANICE K VOS CAUDILL PITKIN COUNTY CO R 26.00 D 0.00 WHEN RECORDED RETURN TO: Name: Milton Zate Trust Agreenient dated December 18.1980 Address: 3824 N. Ashland Avenue Chicago, IL 60613 bF'14 WARRANTY DEED THIS DEED, made this 2nd day of February, 2006 between API Properties 396 LLC, a Nevada limited liability company of the said County of -pwaY and State of California grantor, and Milton Zale Trust Agreenient dated December 18.1980 whose legal address is 3824 N. Ashland Avenue, Chicago. IL 60613 of the said County of Cook and State of Illinois, grantee: WITNESS, that the grantor. for mid in consideration of the sum ofTen dollars and other good and valuable consideration. the receipt and s ufliciency ofwhiollis hereby acknowledged. has granted, bargained, sold and conveyed, and by these presents does grant bargain, sell, convey and confirm, unto the grantees, their heirs and assigns forever, not in tenancy in common but in joint tenancy, all the real property, together with improvements, if any, situate, lying and being in the said County of Pitkin and Slate of Colorado described as follows: A parcel of land situated in Lots 6 and 9 of the PROMONTORY SUBDIVISION, City of Aspen, County of Pitkin, State of Colorado, said parcel being more particularly described as follows: Commencing at the Northwesterly corner of the First Amendment to the Hobgood-Bui-res Subdivision Exception Plat recorded in Reception Number 427535 said point also being on the Easterly right-of-way of Park Avenue, the Point of Beginning; thence leaving said Hobgood- Burres Subdivision N05Â°03'00" W along said Easterly right-of-way a distance of 43.39 feet; thence continuing along said Easterlyright-of-way N10Â°04'00"W a distance of 71.56 feet to a point on the NOI therIy boundary of that parcel described in Reception No. 375895; thence leaving said right-of-way S75'06'00"E along said Northerly boundary, a distance o f 67.31 feet to a point on the Westerly boundary of said Hobgood.Burre; Subdivision; thence leaving said Reception No. 807Â°02'58"Walong said Westerly boundary S14Â°02'15"E a distance 0Â£21.13 feet: thence contjnuing along said Westerly boundary S 11 Â°56'47"W a distance of 41.93 feet: thence continuing along said Westerly boundary N75Â°06'00"W a distance of40,93 feet to the Point ofBeginning County of Pitkin. State of Colorado FileNumber 44266A SleÂ¥,art Title of Colorado. inc. -Aspen Division Worranzy Dred - Jetnt TeninG (Extended) Poge i of3 3 LITIGATION\3397293.1 Â·1 Â· 1 0 43612 A .. also known by street and number as: 190 Park Ave., Aspen, CO 81611 TOGETHER with all and singular the hercditaments and appurtenances thereto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. and all the estate, right, title, interest, claim and demand whatsoever of the grantor, either in law or equity, of, in and to the above bargained premises. with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described, with tile appurtenances, unto the grantee. his heirs and assigns forever. And the grantor, for himself. his heirs, and personal representatives, does covenant, grant, bargain. and agree to and with the grantee, his heirs and assigns. that at the time of the ensealing and delivery of these presents, he is well seized of the premises above conveyed, has good. sure. perfect, absolute and indefeasible estate of inheritance, in law, in fee simple, and has good right. full power and lawful authority to grant, bargain, sell and convey the same in manner and form as aforesaid. and that the same are free and clear from all former and other grants, bargains. sales, liens. taxes, assessments, encumbrances and restrictions ofwhatever kind or nature soever, except See Attached Exceptions The grantor shall and will WARRANT AND FOREVER DEFEND the above-bargained premises in the quiet and peaceable possession of the grantee. his heirs and assigns, against all and evcry person or persons lawfully claiming the whole or any part thereof. The singular number shall include the plural. the plural the singular. and the use of any gender shall be applicable to all genders. IN WITNE,6 WHEREOF, the grantor has executed this deed on the date set forth above. / 4447 APÂ¢'ROPERTIES~96 LLC API Properties NEVEDA. INC., Member of API Properties 396 LLC By: Diane Fox Vice President of API Properties Nevada, Inc., i 11111111111111111111111 lililll'l lilll'lli il'll'll'lill 02/07/2006 03:55 520652 Page: 2 of S JANICE K VOS CAUDILL PITKIN COUNTY CO R 26,00 D 0.00 File Number: 44266A Stewart Title of Colorndo. Inc. - Aspen Division Warranty Deed - Joint Tcnrtitw (Extended) Page 2 43 4 LITIGATION\3397293.1 .. California All Purpose Acknowledgment State of Cali fornia) ) SS. County of Placer ) On 9 -3 -ous ' ,before me, Suzanne M. Ayers, Notary Public, personally appeared , L)0 U, -0 02 , personally known to me to be the person whose nameopOÂ¢are) subscribed to the within instrument and acknowledged to me thÂ¥-1*G*they executed the same in hi~*their authorized capacity(Â¥), and that by his**EFfeir signatureÂ¢~ on the instrument the person(*, or the entity upon behalf of which ffie personÂ® acted, executed the instrument. Witness my hand and official seal. Commlanlon # 1365352 1 ~- Notary Public- CaNfornia ~ Sacramento County ~ 1......P..32:!UZZ:!511~ 4 Illill-ill lilli 1 1111111 I Illillil 11 111111'll 02/07/2006 03:55 520652 Page: 3 of 5 JANICE K VOS CAJ)ILL PITKIN COU,-TY CO R 26.00 0 0,00 5 LITIGATION\3397293 1 -- f .. 520652 1111'u lili 'IMI' in'1111111111111~111'ullalli'1111 02/07/2006 03:55 Page: 4 of 5 JANICE K VCS CAUDILL PITKIN COUNTY CO R 26.00 D 0.00 EXHIBIT 1 EXCEPTIONS 1. Distribution utility easements (including cable TV). 2. Those specifically described rights of third parties not shown by the public records ofwhich Buyer has actual knowledge and which were accepted by Buyer in accordance with paragraph 81) of contract Form No. CBS 1-999 [Matters Not Shown by the Public Records]. 3. Inclusion of the Property within any special taxing district. 4. The benefits and burdens of any declaration and party wall agreements. if any. 5. Unpatented mining claims; reservations or exceptions in patents, Or an act authorizing the issuance thereof; water rights, claims or title to water. 6. Taxes for the year 2005 and subsequent years not yet due and payable. 7. Exceptions and reservations as set forth in the Act authorizing the issuance of the Patent for the City and Townsite of Aspen recorded March I. 1897 in Book 139 at Page 216 as Reception No. 60156. 8. Covenants and restrictions as set forth in Deeds recorded September 22, 1960 in Book 191 at Page 594 as Reception No. 110261 and recorded May 13, 1963 in Book 202 at Page 299 as Reception No. 115444. 9. Patent reservations of record as follows: -Any vein or lode of quartz or other rock in place bearing gold, silver. cinnabar lead, tin, copper or other valuable deposit claimed or 1cnown to exist on March 23, 1885 as reserved by patent recorded July 17 1949 in Book 175 at Page 246. 10. Terms, conditions, obligations and restrictions as set forth in Encroachment Agreement with The City of Aspen recorded September '7. 1988 in Book 572 at Page 663 as Reception No. 303634. 11. Terms, conditions, obligations, easements and restrictions as set forth in Memorandum RE Settlement between Martha M. Aspegren and Theresa M. Hubbert Schiff recorded September 28, 1992 in Book 689 at Page 805 as Reception No. 349046. 12, Terms. conditions, obligations, easements and restrictions as set forth in Settlement and Release Agreement between Martha Aspegren and Therese M. Hubbert Schiff (said Agreement is attached as "Exhibit C" to a recorded document entitled "Easements. File Numhert 44266A SUnvan Title of Colorndo, Ine. - Aspen I)tv]!}on Warrunty Deed - Exhibit f (ExcenttonÂ© Page 1 of2 6 LITIGATION\3397293. I .. Restrictive Covenants and Mutual Obligations") recorded January 13, 1994 in Book 738 at Page 820 as Reception No. 365788. 13. Easements, rights of way and all matters as disclosed on Plat of subject property recorded November 4, 1957 in Ditch Book 2.A at Page 240 and on the Plat recorded August 14, 1986 in Plat Book 18 at Page 88 and recorded April 5, 1999 in Plat Book 49 at Page 11 as Reception No. 429535. i imi m iiin il imi mi kin w imm Iiki Iim 02/07/2008 03:55 520652 Page. 5 of 5 JANICE K VOS CAUDILL PITKIN COUNTY CO R 26.00 D 0.00 7 LITIGATIONU397293 1 '1 .. Jennifer Phelan From: Gilbert [gilbert@studiobarchitects.net] Sent: Friday, November 04, 2011 12:46 PM To: Jennifer Phelan Subject: RE: 190 Park Ave: Zale residence Jennifer, I've requested the letter from the Owner's attorney and will bring that by upon receipt. Thanks, gilbert sanchez, LEED green associate principal studio b architects 501 rio grande place suite 104 aspen, colorado 81611 970.920.9428 t 970.920.7822 f www.studiobarchitects.net FIRM OF THE YEAR AIA Colorado West 2011 -----Original Message----- From: Jennifer Phelan [mailto:Jennifer.Phelan@ci.aspen.co.usl Sent: Thursday, November 03, 2011 11:32 AM To: Gilbert Subject: 190 Park Ave: Zale residence Hi Gilbert: Attached is the completeness review for your application. The material you submitted for disclosure of ownership does not meet the city requirement. Please submit an adequate disclosure at your convenience. Thanks, Jennifer Jennifer Phelan, AICP Deputy Director Community Development Department City of Aspen 130 S. Galena Street Aspen, CO 81611 PH: 970.429.2759 FAX: 970.920.5439 www.aspenpitkin.com -----Original Message----- From: Jennifer [mailto:lennifep@ci.aspen.co.usl Sent: Thursday, November 03, 2011 9:40 AM To: Jennifer Phelan Subject: This E-mail was sent from "RNPB6141E" (Aficio MP 7500). 1 .. Scan Date: 11.03.2011 10:39:54 (-0500) --- No virus found in this message. Checked by AVG - www.avg.com Version: 10.0.1411 / Virus Database: 2092/3993 - Release Date: 11/03/11 Email secured by Check Point 2 .. THE CITY OF ASPEN Land Use Application Determination of Completeness Date: November 3,2011 Dear City of Aspen Land Use Review Applicant, We have received your land use application and reviewed it for completeness. The case number and name assigned to this property is 0069.2011.ASLU -190 Park Ave. U Your Land Use Application is incomplete: We found that the application needs additional items to be submitted for it to be deemed complete and for us to begin reviewing it. We need the following additional submission contents for you application: 1) Proof of Ownership. As noted on pre-application summary, the city requires either a title report (the easiest form may be an Ownership and Encumbrance report) or a letter from a Colorado licensed attorney listing all owners, liens, mortgages, etc. affecting the property. Please provide either an O&E or attorney letter at your earliest convenience. Please submit the aforementioned missing submission items so that we may begin reviewing your application. No review hearings will be scheduled until all o f the submission contents listed above have been submitted and are to the satisfaction of the City of Aspen Planner reviewing the land use application. O Your Land Use Application is complete: If there are not missing items listed above, then your application has been deemed complete to begin the land use review process. Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2759 if you have any questions. Thgnk-Â¥ou, 0 Â»10 , \U - Jennifer PheUn, Deputy Director City of Aspen, Community Development Department For Office Use Only: Qualifying Applications: Mineral Rights Notice Required SPA PUD COWOP Yes- No-iX-- Subdivision (creating more than 1 additional lot) GMQS Allotments Residential Affordable Housing Yes___ No 2<4 Commercial E.P.F. .. 0 Â© 69 % 2 0 l ' Â· .45 l.-11 2731 - LF- 1 -01 - 009 - '/6 .2,6: Â· . 0 Elle [dit Record Navigate Fgrm Report Format Iab Help i@@ IX I e 4~~it]6 3 td.1 i N 4 , 4 0 @* lump 1 ~ *~i O IG~ : 2 *] u j 3 0 .1 imi 30 )4 4 1 Feei |Fee SummarZ ~ Actions | Attachments |Routing tlistory Yaluation |Arch/Eng |Custom Fields |Sub termits |Parcels | 4 k Permt type aslu Aspen Land Use Permit # 0089.2011,ASLU .~ 1~| ~ Addess 190 PARK AVE *Â£5uite ; ~ City ASPEN Rate F-1 Zip 81811 ;2 Permit Informabon ~ ~ Master permt 4, Routing queue aslu07 Applied 10810011 1 1, z Project 5tatu~ per* Approved 2 - 1 2 Description RESIDENTIAL DESIGN VARIANCE. Issued L Closed/Final 4 7 %:It '1 ~ I 24 : Submitted Clock ~| Days ~ Expires 10252012 11. ... 04:73Â£2 5ubmitted via 1034 -2., owner Iii* 190 PARK AVE La5t name ZALE First name MILTON 1138 itili ASPEN CO 81611 M Phone (312)576-4821 ha Address 1% 35 174 Iii S 4 ti . Ap*cant I i:9. 1 L '24 @ Owner k applicant? 0 [*actolis appient? litf Lastname IALE First name MILTON 190 PARK AVE ASPEN CO 81611 i *Â·T Phone (312) 576-4821 Cust # 29157 Address ! ' ~ 2-. 1 t r.Â·y Lender 1, i' Last name < Fast name 1 0 Phone ()- Address 1! LDisplays the perrNI lendefs addiess .wi~ 04Â§Â·-4*swei*,4 4,Â·426+4**4~F **'2,Â·ir~wil,: 4 - 414Pe|&dI=Â¥81lygelas ~i1]01 1-=- I:[ no, g ge 11 -1 75\1-21 -It F 79?iljit_-