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Home My WebLink AboutLand Use Case.300 S Spring St.0028.2012.ASLU0028.2012.ASLU 300 S. SPRING ST 273718227101 INSUBSTANTIAL AMENDMENT Â»11/ >Deandd- )1 ~ /3- 7 1 /6 THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0028.2012.ASLU PARCEL ID NUMBERS 2737 18 227 010 PROJECTS ADDRESS 300 S. SPRING ST PLANNER JESSICA GARROW CASE DESCRIPTION INSUBSTANTIAL AMENDMENT REPRESENTATIVE CHAFFIN LIGHT DATE OF FINAL ACTION 5.2.12 CLOSED BY ANGELA SCOREY ON: 12.5.12 , THIRD AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION This Third Amendment to Subdivision Agreement for the Hannah Dustin Subdivision is made this 3~th day of April, 2012, by and among the CITY OF ASPEN, a municipal corporation (the "City"), and the SNOWMASS CORPORATION, a Colorado corporation ("Snowmass"). RECITALS: A. The City entered into a Subdivision Agreement for the Hannah Dustin Subdivision with Hyman Avenue Holdings, LLC, the predecessor-in-interest to Snowmass and Hyman Street Brownstones, LLC, on September 25,2006 (the "Subdivision Agreement"). B. The Subdivision Agreement was amended on November 7, 2006 ("First Amendment"), and February 27,2009 ("Second Amendment"). The City and Snowmass desire to further amend the Subdivision Agreement with respect to matters which affect only Snowmass. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. The provisions of paragraph 2 of the Second Amendment to the contrary, notwithstanding, the City shall release the financial assurance provided by Snowmass pursuant to said Section 2, in the form o f a Letter o f Credit issued by Bank of America, upon issuance by the City of a Conditional Certificate of Occupancy for the "Commercial Phase" as that term is defined in the Subdivision Agreement. 2. In all other respects, the Subdivision Agreement and the First and Second Amendments thereto shall remain in full force and effect. CITY OF ASPEN, a Colorado municipal corporation 61 ./.DI t By/' JLMAVE- lk____ L../J-ennife~helan, Deputy Community Development Director RECEPTION#: 588709, 05/02/2012 at SNOWMASS CORPORATION, 01:20:38 PM, 1 OF 3 R $21.00 Doc Code SUB AGREE a Colorado corporation Janice K. Vos Caudill, Pitkin County, CO ~ies W. Light, President L I , STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this ~ML day of ~Qq ,/ , 2012, by Jennifer Phelan, Deputy Community Development Director, City of Aspen. ~ Witness my hand and official seal. My commission expires: 8~16~1(p 44.04 ~**04 - Notary Public STATE OF Co\ortdo ) COUNTY OFÂ©Ath ; SS. The foregoing instrument was acknowledged before me this \ 15rday of t--'\ CÂ£-i~.z 2012, by James W. Light, President of Snowmass Corporation. Witness my hand and official seal. My commission expires: 09Â· J :51 13 129 -)(-SlicAL' C) 3-7- Nolay rubio - Nal:Nry Public - Stote of Colamilo G:\Client\Snowmass Corp\300 Spring Street\Third Amendment to Subdivision Agreement 043012 2.wpd 2 1. ASPEN/Pm<IN COMMUNITY DEVELOPMENT DEPARTMENT Ms. Christine Venturo Bank of America 200 Glastonbury Blvd./CT2-545-02-06 Glastonbury, CT 06033 May 2, 2012 Dear Ms. Venturo, The City of Aspen is the beneficiary of a letter of credit (number 3117678) issued by the Bank of America. As was allowed by the development agreement with the City of Aspen, on February 27, 2012 the City issued a letter to you indicating that the letter of credit could be reduced by twenty-five percent (25%) due to the completion of the framing inspection. This brought the amount of the letter of credit to $375,605.44. Based on that letter, Bank of America issued an amendment to the letter of credit on March 9, 2012 for $375,605.44. As part of the development agreement with the City of Aspen, as amended, Snowmass Corporation may request that the letter of credit be released upon receiving a Conditional Certificate of Occupancy (CCO) for the building. As the CCO has been issued, the remaining balance of the letter of credit may be released. Please feel free to contact me at (970) 429-2780 or Jessica.Garrow@ci.aspen.co.us, with any questions you may have. Kind regards, - XtrtUL,L) Jessica Garrow, AICP Long Range Planner Community Development Department City of Aspen 130 SOUTH GALENA STREET Â· ASPEN, COLORADO 81611-1975 Â· PHONE 970.920.5090 FAx 970.920.5439 Printed on Recycled Paper SENDER: COMPLETE TH/S SECT/ON COMPLETE THIS SECTION ON DELIVERY â€¢ Complete items 1, 2, and 3. Also complete A Signature item 4 if Restricted Delivery is desired. O Agent â€¢ Print your name and address on the reverse X 9bc , C~Â» C] Addressee so that we can return the card to you. B. Received by ( Pnnted Name) C. Date of Delivery â€¢ Attach this card to the back of the mailpiece, or on the front if space permits. -1 /Rhz D. Is delivery address different from item 1~ Yes 1. Atticle Addressed toÂ· If YES, enter delivery address below: E.No -: Chri~Int, Vef*0 ~\T op Nymica-, ']to NatgriceÂ£x,84T&41 3. Service Type Cll- 9-15-02.-05 260Certified Mail Â¤ Express Mall O Registered O Return Receipt for Merchandise Â£'~**Pll,Craocea Â¤ Insured Mall O C.O.D. 4. Restricted Delivery? (Extra Fee) O Yes 2. Article Number 91 7199 9991 7030 0696 3965 (Transfer from service label) PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES POSTAL SERVICE First-Class Mail Postage & Fees Paid USPS Permit No. G-10 0 Sender: Please print your name, address, and ZIP+4 in this box o 3 G1ft~20# .* \20 Q. calona Qk. Acpon, Co %1w1 \ ll/,1,â€ž,11,11 "1], 11, â€ž 11 â€ž ' I l l, l i ' l l â€ž â€ž, 1,1 â€ž 11,1 j â€ž, 1, , 1 J <// â‚¬2216-A (~ ARn.Â«0 yes Poe4% , 5 %0Â£' =â€¢â€¢PLÂ£amazia,LIzes~y O -"t/ vix=nie,&71' FilNEY BOWES THE CITY oF ASPEN 02 lA $ 05.750 . 0004626326 MAY02 2012 130 SOUTH GALENA STREET 91 7199 9991 7030 0696 3965 ' MAILED FROM ZIPCODE 81611 ASPEN, COLORADO 81611-1975 ll1l1I1ll/1ll lilli lli''llI1,1,ll Ms. Christine Venturo Bank of America 200 Glastonbury Blvd./CT2-545-02-06 Glastonbury, CT 96033 Bankof America --~~ / Lk.j' \ 1 4--â€¢ue. u.. J BANK OF AMERICA - CONFIDENTIAL PAGE: 1 DATE: MAY 16, 2012 AMENDMENT TO IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3117678 .AMENDMENT NUMBER 2 1 ISSUING BANK BANK OF AMERICA, N.A. 1000 W. TEMPLE STREET 7TH FLOOR, CA9-705-07-05 LOS ANGELES, CA 90012-1514 BENEFICIARY APPLICANT CITY OF ASPEN, COLORADO SNOWMASS CORPORATION 130 SOUTH GALENA STREET 229 MIDLAND AVE ASPEN, CO 81611 BASALT, CO 81621 WE HAVE RECEIVED A REQUEST TO CANCEL THIS LETTER OF CREDIT. THIS CANCELLATION WILL BECOME EFFECTIVE UPON OUR RECEIPT OF THE RETURN OF THE ORIGINAL LETTER OF CREDIT AND ALL AMENDMENTS (IF ANY) HERETO ACCOMPANIED BY THE BENEFICIARY'S WRITTEN ADVICE OF CONSENT PURPORTEDLY SIGNED BY AN AUTHORIZED SIGNOR OF THE BENEFICIARY, SENT TO US ATTENTION OF FAUSTO OMNE . IF THE BENEFICIARY CHOOSES, THEY MAY SIGN AND RETURN THE ATTACHED COPY INDICATING THEIR CONSENT OR REJECTION. IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS AMENDMENT, PLEASE CALL 800-541-6096 OPT 1 . 1*(61-1-6--qi--I-__ AUTHORIZED SIGNATURE ANNIE H. MATiAS AMENDMENT ACCEPTED AMENDMENT REFUSED DATE 6/ed /\1_._ SIGNATURE / Pl/1/u O.lf>-En-h PRINTED NAME ,-- i i "c , t-Â« -P-w- E-l-+A~ TITLE PHONE NUMBER 1*po~~~3*1~f~2944 nitb-0 f -AÂ·==rvi ORIGINAL 05-17-1486B 05-2010 Bankof America 4* c BANK OF AMERICA - CONFIDENTIAL PAGE: 1 DATE: JULY 29, 2011 IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3117678 ISSUING BANK BANK OF AMERICA, N.A. 1000 W. TEMPLE STREET 7TH FLOOR, CA9-705-07-05 LOS ANGELES, CA 90012-1514 BENEFICIARY APPLICANT CITY OF ASPEN, COLORADO SNOWMASS CORPORATION , 130 SOUTH GALENA STREET 229 MIDLAND AVE ASPEN, CO 81611 BASALT, CO 81621 AMOUNT NOT EXCEEDING USD 500,807.25 NOT EXCEEDING FIVE HUNDRED THOUSAND EIGHT HUNDRED SEVEN AND 25/100'S US ., DOLLARS EXPIRATION DECEMBER 31, 2012 AT OUR COUNTERS WE HEREBY ESTABLISH IN YOUR FAVOR OUR IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER 3117678 WHICH IS AVAILABLE WITH BANK OF AMERICA, N.A. BY PAYMENT AGAINST PRESENTATION OF THE ORIGINAL OF THIS LETTER OF CREDIT AND YOUR DRAFTS AT SIGHT DRAWN ON BANK OF AMERICA, N.A., ACCOMPANIED BY THE FOLLOWING DOCUMENT: BENEFICIARY'S SIGNED STATEMENT STATING: "WE HEREBY CERTIFY THAT SNOWMASS CORPORATION HAS FAILED TO SECURE THE OBLIGATION PURSUANT TO SECTION TWO (2) OF THE SECOND AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION." WE HEREBY AGREE WITH YOU THAT DOCUMENTS PRESENTED IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US AT BANK OF AMERICA, N.A., 1000 W. TEMPLE STREET, 7TH FLOOR, MAIL CODE: CA9-705-07-05, LOS ANGELES, CA 90012-1514 ATTN: STANDBY LETTER OF CREDIT DEPARTMENT ON OR BEFORE THE EXPIRATION DATE AS SPECIFIED HEREIN. THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES 1998, INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590 AND ENGAGES US PURSUANT TO THE TERMS THEREIN. IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS TRANSACTION, PLEASE CALL 1-800-541-6096 OPT 1. AÂ»Â»P-4- AUTHORIZED SIGNATURE ORIGINAL 05-17-1486B 05-2010 ANNIE H. MATIAS Bankof America 407 C ( BANK OF AMERICA - CONFIDENTIAL PAGE: 1 DATE: MARCH 9, 2012 AMENDMENT TO IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3117678 AMENDMENT NUMBER 1 ISSUING BANK BANK OF AMERICA, N.A. 1000 W. TEMPLE STREET 7TH FLOOR, CA9-705-07-05 LOS ANGELES, CA 90012-1514 BENEFICIARY APPLICANT CITY OF ASPEN, COLORADO SNOWMASS CORPORATION 130 SOUTH GALENA STREET 229 MIDLAND AVE ASPEN, CO 81611 BASALT, CO 81621 THIS AMENDMENT IS TO BE CONSIDERED AN INTEGRAL PART OF THE ABOVE CREDIT AND MUST BE ATTACHED THERETO. THE ABOVE MENTIONED CREDIT IS AMENDED AS FOLLOWS: THE AMOUNT OF THIS CREDIT HAS BEEN DECREASED BY USD 125,201.81 THE AGGREGATE AMOUNT OF THE CREDIT IS NOW USD 375,605.44 THIS AMENDMENT IS OPERATIVE PER YOUR LETTER DATED FEBRUARY 27, 2012. ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED. IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS AMENDMENT, PLEASE CALL 1-800-541-6096 OPT 1. AUTHO~ED SIGNATURE THIS DOCUMENT CONSISTS OF 1 PAGE(S). n. 7 r7 # p ,-r <-N n A . r- r- 231 2.LA M-UtÂ·y '.Lize ORIGINAL 05-17-1486B 05-2010 Je tt .-Lâ‚¬42'13Â¢%Â»,F'Â· < Â·j,%>i .18**5-y:-4.6.y ~ ~&, - -1- F=UFA fÂ·&1, Certificate of Ochupancy Aspen/Pitkin Community Development Department This certificate issued pursuant to the requirements of the edition of section of the International Building Code. It certifies that at the date of issuance, the structure as described below was in j compliance with the various resolutions and ordinances regulating building construction and use in this jurisdiction. Use Classification: BUS Building Permit: 0025.2011.ACBK Legal Description: SUB:CITY AND TOWNSITE OF ASPEN BLK: 105 LOT:A - LOT:D BK:0226 PG:0228 Building Address: 300 S SPRING ST ASPEN CO 81611 Owner of Building: ANDREW LIGHT 300 SPRING STREET ASPEN, LLC Owner Address: PO BOX 620 BASALT CO 81621 Group: R2, B, M Type of Construction: VB l,i Illi~ Use Zone: MU i~~ Description: ADDITION TO EXISTING BUILDING INCLUDING THREE ABOVE-GRADE OFFICE SPACE LEVELS AND ONE BELOW GRADE AFFORDABLE HOUSING UNIT CONSISTING OF KITCHEN, LIVING ROOM, ONE FULL BATH, AND TWO BEDROOMS. Comments & Restrictions: NFPA 13 FIRE SPRINKLER SYSTEM INSTALLED NO SNOWMELT APPROVED THIS IS A CONDITIONAL CERTIFICATE OF OCCUPANCY. PARKS DEPARTMENT AND ENGINEERING DEPARTMENT REQUIREMENTS MUST BE INSPECTED AND APPROVED ON OR BEFORE J*IE 8, 2012. /714.- A ~570?5<o-1 41.27 20(L F ' Date i C h0f'Building Official F Â¥ 1 ~:, Note: In all occupancies, except R, this certificatd~must be posted in a conspicuous place near the main exit on the premises for which it is issued. Any alteration or use of these described premises or portion thereof without the written approval of the Building Official shall negate this C.O. and subject it to revocation. 41;Â«5,1.92 1 * **3#ial Â·41;r...'* "%2/4'449:4 4 2Â·'G.//14.evb. 1 + *, -Â·wl'.4. ... EDI .1 ._.0-" Â·.1.#Il./#Ilf,4?44.',~0#/AÂ£*Â£./**M.. 9-s:,al,/9,R,14: !rÂ·4Â·44.9 -r. 1, 247 1 -7 RECEPTION#: 588451, 04/24/2012 at 10:09:47 AM, 1 OF 17, R $91.00 DF $0.00 Doc Code DEED RESTRICT Janice K. Vos Caudill, Pitkin County, CO DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY, RENTAL OR RESALE OF THE RESIDENTIAL UNIT 300 SOUTH SPRING STREET CONDOMINIUMS THIS DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY, RENTAL OR RESALE OF THE, RESIDENTIAL UNIT of the 300 SOUTH SPRING STREET CONDOMINIUMS (the "Agreement") is made and entered into this |% day of APR- 1 L- 2012, by 300 SPRING STREET ASPEN, LLC, a Colorado limited liability company (hereinafter referred to as "Declarant"), for the benefit of the parties and enforceable by the ASPEN/PITKIN COUNTY HOUSING AUTHORITY (hereinafter referred to as "APCHA"), a duly constituted multi-jurisdictional Housing Authority established pursuant to the THIRD AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT by and between the City of Aspen, Colorado (the "City"), and Pitkin County, Colorado (the "County"), dated October 28,2002 and recorded at Reception No. 477066 on January 8,2003, of the records of the Pitkin County Clerk and Recorder's office. WITNESSETH: WHEREAS, Declarant owns the Residential Unit of 30~ South Spring Street, a Condominium, according to the Supplemental Condominium Map, recorded APAIL 4 4 , &O/1 , as Reception No. 39$450, in the office of the Clerk and Recorder of Pitkin County, Colorado (the "Unit"); WHEREAS, Declarant is required by the provisions of Ordinance No. 16, Series of 2006, adopted by the Aspen City Council on April 24,2006, to construct a two bedroom condominium unit within the Expansion Project of the 300 South Spring Street Condominiums, as a Category 2 Deed Restricted Unit, as that term is defined in the APCHA Employee Housing Guidelines (the "Guidelines"); and WHEREAS, Declarant agrees to restrict the use and/or transfer of the Unit to "Qualified Tenants/Buyers," as that term is defined in this Agreement, who fall within the Category 2 income range established and adopted by the APCHA from time to time in its Guidelines. In addition, the Declarant agrees that this Agreement shall constitute a resale agreement setting forth the maximum resale price ("Maximum Resale Price") for which the Unit may be sold to any qualified transferee. Finally, by this Agreement, Declarant and its successors-in-interest, hereby restrict the Unit against use and occupancy inconsistent with this Agreement. The parties acknowledge and agree that this Agreement is and shall constitute a voluntary agreement to limit rent for the Unit in order to provide affordable house stock in accordance with C.R.S. Â§38-12-301(2)(a). WHEREAS, the Unit shall be classified as a Category 2 employee housing unit and will be deed restricted to rental and sales price terms within the Guidelines and to occupancy limitations within the housing income eligibility guidelines established ;by the Guidelines. Rentals and sales must be in accordance with the Guidelines as adopted and amended from time to time, except as modified by this Agreement. The Unit shall remain as rental units until such time as it is transferred to a qualified transferee (which must be done through APCHA), or until such time said Unit is deemed to be out of compliance by APCHA with the rental occupancy requirements set forth in the Guidelines or this Agreement for a period of one year from the date on which APCHA gives the record owner of said Unit written notice of such noncompliance and such noncompliance has not been cured during said one-year period. WHEREAS, "Qualified Tenants/Buyers" and/or "Qualified Tenants" are natural persons meeting the income, residency and all other qualifications set forth in the Guidelines, or its substitute, as adopted by the APCHA, or its successor, and in effect at the time of a lease to a Qualified Tenant or the closing of the sale to the Qualified Buyer, and who must represent and agree pursuant to this Agreement to occupy the Unit as their sole place of residence, not to engage in any business activity on the Property other than that permitted in that zone district or by applicable ordinance, not to sell or otherwise transfer the Unit for use in a trade or business; and to continue meeting the employment, residency and other requirements as stated in this Agreement and the Guidelines, NOW, THEREFORE, for value received, the receipt and sufficiency of which are hereby acknowledged, Declarant hereby represents, covenants and agrees as follows: A. SALES UNIT REQUIREMENTS - USE AND OCCUPANCY 1. A "Qualified Buyer" is a person, other than Declarant, who acquires an ownership interest in the Unit in compliance with the terms and provisions of this Agreement. lt is understood that such person or persons shall be deemed a "Qualified Buyer" hereunder only during the period of his, her or their ownership interest in the Unit and shall be obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein during such period, including the Guidelines as amended from time to time. 2. Upon conversion of the Unit from a rental unit to a sales unit, the use and occupancy thereof shall be limited exclusively to housing for natural persons who meet the definition of Qualified Buyers and their families, and the other requirements of this Agreement and the Aspen/Pitkin County Housing Authority Guidelines referred to above. 3. A Qualified Buyer, in connection with the purchase of the Unit, must: a) occupy the Unit as his or her sole place of residence during the time that such Unit is owned; b) not own, directly or indirectly through a legal entity, any interest alone or in conjunction with others, in any developed property or dwelling units in accordance with the limitations established by the Guidelines as amended from time to time; c) not engage in any business activity on or in such Unit, other than permitted in that zone district or by applicable ordinance; d) sell or otherwise transfer such Unit only in accordance with this Agreement and the Guidelines; e) not sell or otherwise transfer such Unit for use in a trade or business; f) not permit any use or occupancy of such Unit except in compliance with this Agreement; g) continue to meet the residence and employment requirements of a Qualified Buyer established by the APCHA Guidelines and as they are amended from time to time; and h) continue to meet the other requirements of the applicable APCHA Guidelines and this Agreement. Recertification of employment, residency and the ownership of other property shall be required as stipulated in the APCHA Guidelines. B. DEFAULT ON LOAN 1. It shall be a breach of this Agreement for a Qualified Buyer to default in payments or other obligations due or to be performed under a promissory note secured by a first deed of trust encumbering the Unit or to breach any of Qualified Buyer's duties or obligations under said deed of trust. It shall also be a breach of this Agreement for a Qualified Buyer to default in the payment of real property taxes or obligations to any homeowners' association for general or special r Page 2 assessments. Each Qualified Buyer must notify the APCHA, in writing, of any such default, including notification received from a lender, or its assigns, of past due payments or default in payment or other obligations due or to be performed under a promissory note secured by a first deed of trust, as described herein, or of any breach of any of Qualified Buyer's duties or obligations under said deed of trust, within five (5) calendar days of Qualified Buyer's notification from lender, or its assigns, or any other creditor specified herein, of said default or past due payments or breach. 2. Upon notification of a default as provided above, the APCHA may offer loan counseling or distressed loan services to the Qualified Buyer, if any of these services are available, and it is entitled to require the Qualified Buyer to sell the Unit to avoid the commencement of any foreclosure proceeding against the Unit. 3. Upon receipt of notice as provided in Paragraphs 1 and 2, the APCHA shall have the right, in its sole discretion, to cure the default or any portion thereof. In such event, the Qualified Buyer shall be personally liable to APCHA for past due payments made by the APCHA together with interest thereon at the rate specified in the promissory note secured by the first deed of trust, plus one percent (1Â°/o), and all actual expenses of the APCHA incurred in curing the default. The Qualified Buyer shall be required by APCHA to execute a promissory note secured by a deed of trust encumbering the Unit in favor of the APCHA for the amounts expended by the APCHA as specified herein, including future advances made for such purposes. The Qualified Buyer may cure the default and satisfy its obligation to the APCHA under this subparagraph at any time prior to execution of a contract for sale, upon such reasonable terms as specified by the APCHA. Otherwise, Qualified Buyer's indebtedness to the APCHA shall be satisfied from the Qualified Buyer's proceeds at closing. 4, In addition, upon receipt of notice as provided in Paragraphs 1 and 2, above, the APCHA shall have the option, exercisable in the APCHA's sole discretion, to purchase the Unit for ninety-five percent (95%) of the Maximum Resale Price. Ifthe APCHA desires to exercise said option, it shall give written notice thereof to the owner of such Unit within sixty (60) days following the APCHA's receipt of the notice as provided in Paragraphs 1 and 2, above. In the event the APCHA timely exercises said option, the closing of the purchase of the Unit shall occur within sixty (60) days following the date of the APCHA's notice to the Qualified Buyer of the exercise of said ORtion. C. RENTAL UNIT REQUIRE~ENTS-USE AND OCCUPANCY 1. For so long as a Unit is a rental unit, it shall be occupied by Qualified Tenants. Only Qualified Tenants shall reside therein and all rental terms shall be for a period of not less than six (6) consecutive months, The owner of the Unit shall maintain the first right to select the Qualified Tenant of its own choosing when renting the Unit, APCHA shall have the right to place a Qualified Tenant in a Unit if the owner of such Unit fails, for a continuous period of one year, to keep such Unit occupied by a Qualified Tenant. An executed copy of all leases for a Unit shall be submitted to the APCHA within the (10) days of the approval of a Qualified Tenant. All tenants shall be approved through the APCHA PRIOR to moving into said Unit. If the Unit is found by APCHA to be out of compliance as stipulated above for one-year, such Unit shall be sold through the APCHA and under the requirements as stated below. 2. The maximum rental rate shall not exceed Category 2 rental rates as set forth in the Guidelines and may be adjusted annually as set forth in the Guidelines. The maximum permitted rental rate for the Page 3 Unit on the date of execution of this deed restriction is $ per month. Rent shall be verified and approved by APCHA upon submission and approval ofthe lease. 3. Written verification of employment of employee(s) proposed to reside in the Unit shall be completed and filed with the APCHA prior to occupancy thereof, and such verification must be acceptable to the APCHA. 4. The Unit shall be required to be rented for periods of no less than six (6) consecutive months. Upon vacancy of the Unit, the owner is granted no more than one hundred and twenty days ( 120) in which to locate a new Qualified Tenant ("Vacancy Period"). The Vacancy Period shall not commence if the owner is actively engaged in the process of evicting the tenant for non-compliance with the APCHA Guidelines and/or with provisions of the lease. The one-year cure/compliance period referenced in the recitals and Paragraph 1, above, shall not commence until the expiration of the Vacancy Period. 5. The Unit must meet minimum occupancy requirements; i.e., at least one (1) person per bedroom. However, if the owner has advertised a vacant unit for over thirty (30) days and has not obtained a Qualified Tenant, the minimum occupancy requirement is waived, provided that the owner shall still be required to lease the unit to a minimum of one (1) qualified person. At such time as a Unit becomes vacant again, the owner must again try to meet the minimum occupancy requirement. D. DEFAULT ON CONDOMINIUM ASSESSMENTS It shall be a violation of this Agreement for any owner of the Unit from time to time to default in the payment of general or special assessments to any homeowner's association, and such person shall be subject to enforcement as provided herein. It shall not be considered a violation under this provision if the owner of the Unit is exercising the right to contest a regular or special assessment. In such an event, the APCHA may demand that the owner post adequate security covering the amount of the contested assessment for the duration of the contestation. In addition, upon sale of the Unit as to which the payment of such obligations is in default, the assessments shall be paid at closing. E. AGREEMENT RUNS WITH THE LAND This Agreement shall constitute covenants running with the Unit, as a burden thereon, for the benefit of, and shall be specifically enforceable by the APCHA, the City Council for the City (the "City Council"), the Board of County Commissioners for Pitkin County (also referred to herein as the "County"), and their respective successors and assigns, as applicable, by any appropriate legal action including but not limited to specific performance, injunction, reversion, or eviction of non-complying owners and/or occupants. F. VOLUNTARY SALE In the event that a Qualified Buyer desires to voluntarily sell the Unit, he/she shall execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission with the APCHA providing for a 180-day listing period, or such other time period as required by the APCHA Guidelines in effect at time of listing. The APCHA shall promptly advertise the Unit for sale by competitive bid to Qualified Buyers. The listing and sale of the Unit shall be subject to such listing, sales and other fees and expenses as may be imposed by the APCHA from time to time as set forth in the Guidelines. Page 4 G. APCHA'S RIGHT TO ALTERATIONS AFTER ACQUISITION In the event APCHA acquires the Unit per the terms of this Agreement, APCHA has the right to repair, replace, redevelop, remove and maintain such Unit prior to resale to a Qualified Buyer, and/or amend this Deed Restriction Agreement following the acquisition. H. MAXIMUM RESALE PRICE 1. In no event shall a Unit be sold for an amount ("Maximum Resale Price") in excess of the lesser of: a. $133,000,00, plus an increase of three percent (3%) of such price per year from the date of purchase to the date of owner's notice of intent to sell (prorated at the rate of,25 percent for each whole month for any part of a year); or b. an amount (based upon the Consumer Price Index, All Items, U.S. City Average, Urban Wage Earners and Clerical Workers (Revised), published by the U,S. Department of Labor, Bureau of Labor Statistics) calculated as follows: the owner's purchase price divided by the Consumer Price Index published at the time of owner's purchase stated on the Settlement Statement, multiplied by the Consumer Price Index current at the date of intent to sell. In no event shall the multiplier be less than one (1). For purposes of this Agreement, "date of intent to sell" shall be the date of execution of a listing contract when required by this Agreement, or if a listing contract is not otherwise necessary, the date shall be determined to be the date upon which a requirement for the owner to sell is first applicable. NOTHING HEREIN SHALL BE CONSTRUED TO CONSTITUTE A REPRESENTATION OR GUARANTEE BY THE APCHA OR THE CITY THAT ON RESALE THE OWNER SHALL OBTAIN THE MAXIMUM RESALE PRICE. 2. a. Subject to the limitations of this Section, for the purpose of determining the Maximum Resale Price in accordance with this Section, the owner may add to the amount specified in Paragraph 1., above, the cost of Permitted Capital Improvements, as set forth in Exhibit "A" attached hereto or otherwise allowed by the Guidelines and as they are amended from time to time, in a total amount not to exceed $13,300.00, which is ten percent (10%) of the listed purchase price set forth in Paragraph 1.a., above, In calculating such amount, only those Permitted Capital Improvements identified in Exhibit "A" hereto or otherwise allowed by the Guidelines from time to time shall qualify for inclusion. All such Permitted Capital Improvements installed or constructed over the life of the unit shall qualify, and will be depreciated based on the Depreciation Schedule used by APCHA at the time of listing. b. Permitted Capital Improvements shall not include any changes or additions to the Properly or Unit made by the owner during construction or thereafter, except in accordance with Paragraph 1.a., above. Permitted Capital Improvements shall not be included in the APCHA's listed purchase price, even if made or installed during original construction. Page 5 c. In order to qualify as Permitted Capital Improvements, the owner must furnish to the APCHA the following information with respect to the improvements that the owner seeks to include in the calculation of Maximum Resale Price: (1) Original or duplicate receipts to verify the actual costs expended by the owner for the Permitted Capital Improvements; (2) The owner's affidavit verifying that the receipts are valid and correct receipts tendered at the time of purchase; and (3) True and correct copies of any building permit or certificate of occupancy required to be issued by the Aspen/Ditkin County Building Department with respect to the Permitted Capital Improvements. All capital improvements will be depreciated. Certain capital improvements will not be counted towards the 10% cap. Each capital improvement will depreciate according to the depreciation schedule stated in an approved handbook. The current source is the Marshall Swift Residential Handbook. Any capital improvements associated with health and safety, energy efficiency, water conservation, and green building products will be exempt from the 10% capital improvement cap; however, such capital improvements shall be depreciated according to the depreciation schedule stated in an approved handbook. Any improvement to bring the Unit up to the Aspen Affordable Housing Building Guidelines will also be exempt from the 10% cap. d. For the purpose of determining the Maximum Resale Price in accordance with this Section, the owner may also add to the amounts specified in Paragraphs 1 and 2.a., the cost of any permanent improvements constructed or installed as a result of any requirement imposed by any governmental agency, provided that written certification is provided to the APCHA of both the applicable requirement and the information required by Paragraph 2.c. (1) - (3). e. In order to obtain maximum resale price, owner must ensure that the Unit meets APCHA's generally applicable minimum standards for a seller of a deed-restricted unit to receive full value as determined by APCHA in its discretion. This shall include requirements to clean the home, ensure that all fixtures are in working condition, and to repair damage to the unit beyond normal wear and tear and as stated in the Minimum Standardsfor Seller to Receive Full Value at Resale, Exhibit "B". If the Seller does not meet this requirement, APCHA may require that Seller escrow at closing a reasonable amount to achieve compliance by APCHA, or reduce the maximum resale price accordingly. I. GRIEVANCES All disputes between Declarant (or Declarant's successors and assigns) or an owner or tenant in the Unit and APCHA shall be heard in accordance with the grievance procedures set forth in the Guidelines. J. CLOSING COSTS A Qualified Buyer shall not permit any prospective buyer to assume any or all of the owner's customary closing costs (including, but not limited to, title insurance, sales fee, pro ration of taxes, homeowners dues, etc., as are customary in Aspen and Pitkin County) nor accept any other consideration Page 6 which would cause an increase in the purchase price above the bid price so as to induce the owner to sell to such prospective buyer. K. MULTIPLE QUALIFIED BIDS In the event that one (1) qualified bid is received equal to the Maximum Resale Price herein established, the Unit shall be sold to such bidder at the Maximum Resale Price; and in the event owner receives two (2) or more such bids equal to the Maximum Resale Price, the Qualified Buyer shall be selected according to the priority for sale units set forth in the Guidelines; and, in the event that more than one (1) such qualified bidder is of equal priority pursuant to the Guidelines, the Qualified Buyer shall be selected by lottery among the qualified bidders of the highest priority, whereupon the Unit shall be sold to the winner of such lottery at the Maximum Resale Price. If the terms of the proposed purchase contract, other than price, as initially presented to the owner, are unacceptable to the owner, there shall be a mandatory negotiation period of three (3) business days to allow the owner and potential buyer to reach an agreement regarding said terms, including but not limited to, the closing date and financing contingencies. If, after the negotiation period is over, the owner and buyer have not reached an agreement, the next bidder's offer will then be presented to the owner for consideration and a three (3) business day negotiating period will begin again. The owner may reject any and all bids; however, the owner is subject to the provisions in the Guidelines pertaining to the listing fee, Bids in excess of the Maximum Resale Price shall be rejected. If all bids are below the Maximum Resale Price, the owner may accept the highest qualified bid. If all bids are below the Maximum Resale Price and two (2) or more bids are for the same price, the Qualified Buyer shall be selected by lottery from among the highest qualified bidders. L. NON-QUALIFIED TRANSFEREES Acquisition of any interest in the Unit by someone other than the Declarant or a Qualified Buyer is a violation of this Agreement. In the event that title to the Unit vests by descent in, or is otherwise acquired by, any individual and/or entity who is a non-qualified transferee, the Unit shall immediately be listed for sale as provided in Paragraph F, above (including the payment of the specified fee to the APCHA), and the highest bid by a Qualified Buyer, for not less than ninety-five percent (95%) of the Maximum Resale Price or the appraised market value, whichever is less, shall be accepted; i fall bids are below ninety-five percent (95%) of the Maximum Resale Price or the appraised market value, the Unit shall continue to be listed for sale until a bid in accordance with this Section is made, which bid must be accepted. The cost of the appraisal shall be paid by the Non-Qualified Transferee(s). 1. Non-Qualified Transferee(s) shall join in any sale, conveyance or transfer of the Unit to a Qualified Buyer and shall execute any and all documents necessary to do so; and 2. Non-Qualified Transferee(s) agrees not tor (1) occupy the Unit; (2) rent all or any part of the Unit, except in strict compliance with Paragraph N hereof; (3) engage in any other business activity on or in the Unit; (4) sell or otherwise transfer the Unit except in accordance with this Agreement and the Guidelines; or (5) sell or otherwise transfer the Unit for use in a trade or business. 3. The APCHA, the City, the County, or their respective successors, as applicable, shall have the right and option to purchase the Unit, exercisable within a period of fifteen (15) calendar days after receipt of any sales offer submitted to the APCHA by a Non-Qualified Transferee(s), and in the event of exercising their right and option, shall purchase the Unit from the Non-Qualified Transferee(s) for a price of ninety-five percent (95%) of the Maximum Resale Price, or the Page 7 appraised market value, whichever is less. The offer to purchase shall be made by the Non- Qualified Transferee within fifteen (15) days of acquisition ofthe Unit. 4. Where the provisions of this Paragraph L apply, the APCHA may require the Non-Qualified Transferee to rent the Unit in accordance with the provisions of Paragraph N.1., below. M. OWNER RESIDENCE, EMPLOYMENT AND CONTINUING COMPLIANCE 1. The Unit is to be utilized only as the sole and exclusive place of residence of a Qualified Tenant/Buyer. 2. In the event a Qualified Buyer changes place of residence or ceases to utilize the Unit as his/her sole and exclusive place of residence, ceases to be a full-time employee in accordance with the APCHA Guidelines as they are amended from time to time, or otherwise ceases to be in compliance as a Qualified Buyer with the APCHA Guidelines as they are amended from time to time, or this Agreement, the Unit MUST be offered for sale pursuant to the provisions of Paragraph F of this Agreement, as applicable. A Qualified Buyer shall be deemed to have changed his or her place of residence by becoming a resident elsewhere or accepting employment outside Pitkin County, or residing in the Unit for fewer than nine (9) months per calendar year without the express written approval of the APCHA, or by ceasing to be a full-time employee as required by the Guidelines as amended from time to time. Where the provisions of this Paragraph 2 apply, the APCHA may require the owner to rent the Unit in accordance with the provisions of Paragraph N.1., below, pending a sale of the Unit. 3. If at any time the Qualified Buyer of the Un(t also owns directly or indirectly through a legal entity any interest alone or in conjunction with others in any developed residential property or dwelling unit(s) located in Eagle, Garfield, Gunnison or Pitkin Counties, within the Roaring Fork Valley as defined in the Guidelines as they are amended from time to time, the Qualified Buyer agrees to immediately list said other property or unit for sate and to sell his or her interest in such property at fair market value to like units or properties in the area in which the property or dwelling unit(s) are located, as applicable. In the event said other property or unit has not been sold by Qualified Buyer within one hundred eighty (180) days of its listing for any reason, then Qualified Buyer hereby agrees to immediately list the Unit for sale pursuant to the provisions of Paragraph F of this Agreement. N. RENTAL 1. A Qualified Buyer may not, except with prior written approval of the APCHA, and subject to APCHA's conditions of approval, rent the Unit for any period of time. Prior to occupancy, each tenant must be approved by the homeowner's association, if applicable, and the APCHA in accordance with the income, occupancy and all other qualifications established by the APCHA in its Guidelines. The APCHA shall not approve any rental if such rental is being made by a Qualified Buyer to utilize the Unit as an income producing asset, except as provided below, and shall not approve a lease with a rental term in excess of twelve (12) months. A signed copy of the lease must be provided to the APCHA prior to occupancy by each tenant. Any such lease approved by the APCHA shall show the length of the lease and the monthly rent. The monthly rent cannot exceed the Qualified Buyer's costs, which include the monthly expenses for the cost of principal and interest payments, taxes, property insurance, condominium or homeowners assessments, utilities Page 8 remaining in Qualified Buyer 's name, plus an additional amount as stated in the Guidelines and as they are amended from time to time, and a reasonable (refundable) security deposit. The requirements of this paragraph shall not preclude the Qualified Buyer from sharing occupancy of the Unit with non-Owners on a rental basis provided Qualified Buyer continues to meet the obligations contained in this Agreement, including Paragraph M.1. 2. IN NO EVENT SHALL ANY OWNER CREATE AN ADDITIONAL DWELLING UNIT, AS DEFINED IN THE PITKIN COUNTY OR CITY OF ASPEN LAND USE CODES, IN OR ON THE UNIT. 3. NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE THE APCHA TO PROTECT OR INDEMNIFY ANY OWNER AGAINST ANY LOSSES ATTRIBUTABLE TO THE RENTAL, INCLUDING (NOT BY WAY OF LIMITATION) NON-PAYMENT OF RENT OR DAMAGE TO THE PREMISES; NOR TO REQUIRE THE APCHA TO OBTAIN A QUALIFIED TENANT FOR ANY OWNER IN THE EVENT THAT NONE IS FOUND BY ANY OWNER. 0. COMPLIANCE REVIEW AND REMEDIES FOR BREACH 1. Declarant, owners of the Unit, or Qualified Tenants/Buyers shall promptly provide to the APCHA all such information as the APCHA deems reasonably necessary at any time to verify compliance with this Agreement. The APCHA shall maintain the confidentiality of any financial data provided by any existing or potential owner, except for such disclosures as are necessary with respect to any litigation, enforcement or other legal proceedings. In the event that APCHA has reasonable cause to believe that Declarant or any owner is violating the provisions of this Agreement, the APCHA, by its authorized representative, may inspect the Unit between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing such person with no less than 24 hours' written notice. 2. Except as otherwise specifically provided herein, the APCHA, through its employees or agents, in the event a violation or potential violation of this Agreement is discovered, shall send a notice of violation to the Declarant, the owner of the affected Unit, the tenant and/or the Qualified Buyer describing the nature of the violation and allowing said person fifteen (15) days to cure. Said notice shall state that the violator may request a hearing before the APCHA Board of Directors within fifteen (15) days to dispute the merits of the allegations. If no hearing is requested and the violation is not cured within the fifteen (15) day period, the violation shall be considered final and the violator shall immediately list the Unit for sale in accordance with this Agreement. The failure to request a hearing shall constitute the failure to exhaust administrative remedies for the purpose of judicial review. If a hearing is held before the APCHA Board, (i) the decision of the APCHA Board based on the record of such hearing shall be final for the purpose of determining if a violation has occurred, and (ii) the APCHA Board shall have discretion, consistent with the terms and conditions of this Agreement, to determine the appropriate action to be taken to either remedy the violation or require the violator to vacate or to list the Unit for sale in accordance with this Agreement, and APCHA, in its discretion, shall identify the measures necessary to bring the Unit into compliance, which may include a requirement to vacate and/or sell the Unit in accordance with this Agreement. Page 9 3. There are hereby reserved to the parties hereto any and atl remedies provided by law for breach of this Agreement or any of its terms. In the event the parties resort to litigation with respect to any or all provisions of this Agreement, the prevailing party shall awarded damages and costs, including reasonable attorneys' fees. 4. In the event the Unit is used, occupied, leased, sold and/or conveyed without compliance herewith, such use, occupancy or sale and/or conveyance shall, following any applicable cure period(s) set forth herein, be deemed wholly null and void and shall confer no title whatsoever upon the purported buyer, tenant or occupant. Each and every lease and conveyance of the Unit, for all purposes, shall be deemed to include and incorporate by this reference, the covenants herein contained, even without reference therein to this Agreement. The violator shall be liable for all APCHA's costs and reasonable attorneys' fees incurred in enforcing this Agreement and in setting aside any such transaction. 5. In the event that the violator fails to cure any breach, the APCHA may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement or a mandatory injunction requiring sale of the Unit by the owner thereof or vacating the Unit, or termination of an unlawful lease. The costs of such sale, including the costs of enforcing this Agreement and reasonable attorneys' fees, shall be taxed against the proceeds of the sale with the balance being paid to the owner ofthe Unit. 6. In the event of a breach of any of the terms or conditions contained herein by the owner, his or her heirs, successors or assigns, the APCHA's initial listed purchase price of the Unit as set forth in Paragraph H.1.a. of this Agreement shall, upon the date of such breach as determined by the APCHA, automatically cease to increase as set out in Paragraph H of this Agreement, and shall remain fixed until the date of cure of said breach. P. FORECLOSURE 1. If the Unit is sold at a foreclosure sale or otherwise acquired by any person or entity in lieu of foreclosure, the APCHA and the Board, as the designee of the APCHA, shall have the option to acquire the Unit within thirty (30) days after (i) the issuance of a public trustee's deed to the purchaser, or (ii) receipt by the APCHA of written notice from such person or entity of the acquisition of the Unit in lieu of foreclosure, as applicable, for an option price not to exceed (a) in the event of a foreclosure, the redemption price on the last day of all statutory redemption periods and any additional reasonable costs incurred by the holder during the option period which are directly related to the foreclosure or (b) in the event of a transfer in lieu offoreclosure, the amount paid, or the amount of debt forgiven, by the transferee plus the reasonable costs incurred by the transferee with respect to its acquisition of the Unit. Notwithstanding any provision herein to the contrary, except for persons or entities having a valid lien on the Unit, only Qualified Buyers may acquire an interest in a Unit at a foreclosure sale or in lieu of foreclosure. If any person or entity having a lien on the Unit is not a Qualified Buyer and acquires an interest in such Unit in a foreclosure sale or in lieu of foreclosure, the provisions of Paragraph L.1. shall apply, It is the APCHA's intent that the terms and provisions of this Agreement shall remain in full force and effect with respect to the Unit until modified, amended or terminated in accordance with Paragraph S.11. hereof. Page 10 2, In the event that APCHA or the Board, as the designee of the APCHA, exercise the option described above, the APCHA and/or its designee, may sell the Unit to Qualified Buyers as that term is defined herein, or rent the Unit to qualified tenants who meet the income, occupancy and al! other qualifications, established by the APCHA in its Guidelines until a sale to a Qualified Buyer is effected. 3. Notwithstanding the foregoing, in the event of foreclosure by the holder of the first deed of trust on the Unit, if the holder of such deed of trust is the grantee under the public trustee's deed and APCHA does not exercise its option to purchase as provided in this paragraph, then APCHA agrees to release the Unit from the requirements of this Agreement. Q. ASSESSMENTS Each owner of the Unit shall have a non-exclusive right in common with the other owners of condominium units in the 300 South Spring Street Condominiums (the "Project") to the use of sidewalks, pathways, areas provided for open space, utilities and common areas, and each such owner may make such use without hindering or encroaching upon the lawful rights of the other owners. The Unit's regular management/maintenance assessments shall be based on an allocation of 4% of the total amount of any such assessments for all condominium units within the Project. The Unit shall not be responsible or liable for any special assessment for capital costs or otherwise in connection with the Project. R. PARKING LEASE The owner or a Qualified Tenant of the Unit shall have the right and option to lease Parking Unit 1 of the Aspen Brownstones, according to the Condominium Map, recorded in Plat Book 90 at Page 58, in the office of the Clerk and Recorder of Pitkin County, Colorado. Use of the Parking Unit shall be for the personal use of the occupant of the Unit. Subleasing shall not be allowed. The terms of the lease will not require that the lessee pay any rent or any portion of property taxes or assessments levied by the Aspen Brownstones Parking Association attributable to Parking Unit 1, which shall remain the obligation of the owner of Parking Unit 1. S. GENERAL PROVISIONS 1. Notices. Any notice, consent or approval which is required to be given hereunder shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to any address provided herein or to any subsequent mailing address of the party as long as prior written notice of the change of address has been given to the other parties to this Agreement, Said notices, consents and approvals shall be sent to the parties hereto at the following addresses unless otherwise notified in writing: To APCHA: Aspen/Pitkin County Housing Authority 530 East Main, Lower Level Aspen, Colorado 81611 Page 11 To Declarant: 300 Spring Street Aspen, LLC P. O. Box 692 Snowmass, CO 81654 To Owner(s): To be completed by a separate Memorandum of Acceptance when sold to a Qualified Buyer 2. Exhibits. All exhibits attached hereto (Exhibits "A" and "B") are incorporated herein and by this reference made a part hereof. 3. Severability. Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such a manner as to be valid under applicable law; but if any provision of any of the foregoing shall be invalid or prohibited under said applicable law, such provisions shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of such document. 4, Choice of Law. This Agreement and each and every related document are to be governed and construed in accordance with the laws ofthe State ofColorado. 5. Successors. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. 6. Section Headings. Paragraph or section headings within this Agreement are inserted solely for convenience of reference, and are not intended to, and shall not govern, limit or aid in the construction of any terms or provisions contained herein. 7, Waiver. No claim of waiver, consent or" acquiescence with respect to any provision of this Agreement shall be valid against any party hereto except on the basis of a written instrument executed by the parties to this Agreement. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition, provided that such waiver is in writing. 8. Gender and Number. Whenever the context so requires herein, the neuter gender shall include any or all genders and vice versa and the use ofthe singular shall include the plural and vice versa. 9. Further Actions. The parties to this Agreement agree to execute such further documents and take such further actions as may be reasonably required to carry out the provisions and intent of this Agreement or any agreement or document relating hereto or entered into in connection herewith. 10. Modifications. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made by writings signed by both parties and recorded with the Clerk and Recorder of Pitkin County, Colorado. Notwithstanding the foregoing, the APCHA reserves the right to amend this Agreement unilaterally where deemed necessary to effectuate the purpose and intent of this Agreement, and where such unilateral action does not materially impair the owner's rights under this Agreement. Page 12 11. Mortgagee Right to Cure. Nothing herein shall be deemed to impair any right of a mortgagee of a Unit from curing any default by an owner of his or her financial obligations with respect to such Unit. IN WITNESS WHEREOF, the paMies hereto have executed this instrument on the day and year above first written. DECLARANT: 300 SPRING STREET ASPEN, LLC ,/(}*tt Reuss, Manager STATE OF COLORADO ) ) SS. COUNTY OF G#lo , The foregoing instrument was acknowledged before me th is l# day ofAF*L ,2012, by Garrett Reuss, as Manager of 300 Spring Street Aspen, LLC. Witness my hand and official seal. My commission expires: 6 -94-90(4 1 #P***'*';;Kcu>6â€žt&%2 (2.-2 UOU -loll Public Page 13 f ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY The foregoing Deed Restriction Agreement for the Occupancy, Rental or Resale of the Residential Unit, 300 South Spring Street Condominiums, and its terms are hereby adopted and declared by the Aspen/Pitkin County Housing Authority. ASPEN/PITKIN COUNTY HOUSING AUTHORITY_~ By: - 1/*~4:2~21- Tom McCabe, Executive Director STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this /f day of ~pr, ~ , 2012, by Tom McCabe, as Executive Director of the Aspen/Pitkin County Housing Authdrity. Witness my hand and official seal. // 1 / My commission expires: 1 ~~I '20- /1 1 E-IT~DY CHÂ·'. .'- 10-tÂ· 1 i. f'' 1 4, r. Notary Public ~ STATE OF A)!2%20 1 Â· My Commissic . ... ,,Ift# . '/22/12 Page 14 EXHIBIT "A" Permitted Capital Improvements 1. The term "Permitted Capital Improvement" as used in the Agreement shall only include the following: a. Improvements or fixtures erected, installed or attached as permanent, functional, non-decorative improvements to real property, excluding repair, replacement and/or maintenance improvements; b, Improvements for energy and water conservation; c. Improvements for the benefit of seniors and/or handicapped persons; d. Improvements for health and safety protection devices; e. Improvements to add and/or finish permanent/fixed storage space; Â£ Improvements to finish unfinished space. g. Landscaping; h. The cost of adding decks and balconies, and any extension thereto; and/or i. Improvements associated with health and safety, energy efficiency, water conservation, and green building products. 2. Permitted Capital Improvements as used in this Agreement shall NOT include the following: a. Jacuzzis, saunas, steam showers and other similar items; b. Upgrades or addition of decorative items, including lights, window coverings and other similar items; c. Upgrades of appliances, plumbing and mechanical fixtures, carpets and other similar items included as part of the original construction of a unit and/or improvements required to repair and maintain existing fixtures, appliances, plumbing and mechanical fixtures, painting, and other similar items, unless replacement is energy efficient or for safety and health reasons. 3. All Permitted Capital Improvement items and costs shall be approved by the APCHA staff prior to being added to the Maximum Resale Price as defined herein. In order to get credit for an improvement where a building permit is required, the improvement will not be counted unless a Letter of Completion was obtained by the Building Department, 4. The Permitted Capital Improvements shown hereon shall be subject to such additions, deletions and modifications as may be set forth in the Guidelines from time to time; provided that if any improvement is made at a time when it would be deemed a Permitted Capital Improvement hereunder or under the Guidelines, such improvement shall be deemed a Permitted Capital Improvement at all times notwithstanding any modification ofthe Guidelines. Page 15 . EXHIBIT "B" MINIMUM STANDARDS FOR SELLER TO RECEIVE FULL VALUE AT RESALE â€¢ Clean unit â€¢ Carpets steam-cleaned two or three days prior to closing â€¢ All scratches, holes, burned marks repaired in hardwood floors, linoleum, tile, counter tops, etc. â€¢ No broken or fog windows â€¢ All screens in windows (if screens were originally provided) â€¢ All doors will be in working order with no holes â€¢ All locks on doors will work â€¢ All keys will be provided; e.g., door, mail box, garage â€¢ All mechanical systems shall be in working order â€¢ Walls paint ready â€¢ Normal wear and tear on carpet; if carpet has holes, stains, etc., the carpet and padding shall be replaced or escrow funds at current market value per square foot for a comparable product shall be held at the time of closing to be used by the new buyer â€¢ No leaks from plumbing fixtures â€¢ No roof leaks â€¢ Any safety hazard remedied prior to closing â€¢ Satisfaction of radon issue if found at time of inspection â€¢ All light fixtures shall be in working order DEFINITIONS: Clean Unit: All rooms will be cleaned as stated below: â€¢ Kitchen: o Range - Inner and outer services will be cleaned. o Range hood and Exhaust Fan o Refrigerator and Freezer - Inner and outer surfaces of refrigerator and freezer will be clean. Freezer will be defrosted. o Cabinets and Countertops - Exterior and interior surfaces of cabinets and drawers will be clean. Door and drawer handles, if provided, shall be clean and in place. o Sink and Garbage Disposal - Sink and plumbing fixtures will be clean, If garbage disposal provided, this must be in working order. o Dishwasher- If provided, must be in working order and inner and outer surfaces shall be clean. â€¢ Blinds. Windows, Screens: o Mini-blinds, Venetian Blinds, Vertical Blinds, Pull Shades - Will be clean. o Windows - All window surfaces, inside and outside of the window glass, shall be clean. o Screens - Screens will be clean and in place with no holes or tears. â€¢ Closets: Closets, including floors, walls, hanger rod, shelves and doors, shall be clean. â€¢ Light Fixtures: Light fixtures will be clean and shall have functioning bull)s/florescent tubes. Page 16 â€¢ Bathrooms: o Bathtub, Shower Walls, Sinks - Bathtubs, shower walls and sinks shall be clean. Toilet and Water Closet - Water closets, toilet bowls and toilet seats will be clean. If the toilet seat is broken or peeling, the seat shall be replaced. Tile - All tile and grout will be clean. Mirrors and Medicine Cabinets - Mirrors and medicine cabinets shall be cleaned inside and out. Shelves and/or Other Cabinetry - Al] other shelving or cabinetry shall be cleaned inside and out. â€¢ Walls, Ceilings, Painted Doors and Baseboards: Painted surfaces must be cleaned with care to ensure the surface is clean without damaging the paint. â€¢ Floors: Floor cleaning includes sweeping and mopping and could include stripping, waxing and buffing. Types of floor surfaces include wood, wood parquet tiles, linoleum, asphalt tile, vinyl tile, mosaic tile, concrete and carpet. If carpet, all carpets shall be cleaned at least two days prior to closing. â€¢ Interior Storage/Utility Rooms: Storage/utility rooms shall be cleaned. Properly cleaned storage/utility rooms will be free from odors, removable stains, grease marks or accumulations. SafetÂ¥ Hazard: Any item that provides a safety hazard shall be fixed, This would include, but is not limited to, exposed electrical wiring, satisfaction of any radon issue found, ventilation for gas hot water system, etc. Walls Paint-Readv: A\\ holes shall be patched; all posters, pictures, etc., shall be removed from all walls; all nails, tacks, tape, etc., shall be removed from all walls; and all walls shall be clean and ready for the new buyer to paint. If wallpaper has been placed on the wall and in good condition, the wallpaper can remain; if the wallpaper is peeling off, the wallpaper must be removed. Windows: If a window is broken, including the locking mechanism, the window shall be replaced. If the window has a fog residue in the inside, it shall be replaced. G:\Client\Snowmass CorpU00 Spring Streel\Deed Restriction Agreement for the Occupancy Rental or Resale of 300 South Springs Street Condominiums 0327 12.doc Page 17 000 0 Bank of America *-~~ BANK OF AMERICA - CONFIDENTIAL PAGE: 1 DATE: MARCH 9, 2012 AMENDMENT TO IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3117678 AMENDMENT NUMBER 1 ISSUING BANK BANK OF AMERICA, N,A, 1000 W. TEMPLE STREET 7TH FLOOR, CA9-705-07-05 LOS ANGELES, CA 90012-1514 BENEFICIARY APPLICANT ~ CITY OF ASPEN, COLORADO SNOWMASS CORPORATION ~ 130 SOUTH GALENA STREET 229 MIDLAND AVE ASPEN, CO 81611 BASALT, CO 81621 THIS AMENDMENT IS TO BE CONSIDERED AN INTEGRAL PART OF THE ABOVE CREDIT AND MUST BE ATTACHED THERETO. THE ABOVE MENTIONED CREDIT IS AMENDED AS FOLLOWS: THE AMOUNT OF THIS CREDIT HAS BEEN DECREASED BY USD 125,201.81 ' THE AGGREGATE AMOUNT OF THE CREDIT IS NOW USD 375,605.44 THIS AMENDMENT IS OPERATIVE PER YOUR LETTER DATED FEBRUARY 27, 2012. ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED. IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS | AMENDMENT, PLEASE CALL 1-800-541-6096 OPT 1. AUTHORI*ED SIGNATI~E ~ THIS DOCUMENT CONSISTS OF 1 PAGE(S). S-KELL/,ROSALES ORIGINAL 05-17-1486B 05-2010 &91 ASPEN/PITKIN COMMUNITY DEVELOPMENT DEPARTMENT Ms. Christine Venturo Bank of America 200 Glastonbury Blvd./CT2-545-02-06 Glastonbury, CT 06033 February 27, 2012 Dear Ms. Venturo, The City of Aspen is the beneficiary of a letter of credit (number 3117678) issued by the Bank of America. As part of a development agreement, Snowmass Corporation may request a reduction of the letter of credit by twenty-five percent (25%) upon completion of the framing inspection. As the framing inspection has been approved, the existing letter of credit of $500,807.25 may be reduced by $125,201.81. A balance of no less than $375,605.44 is required to be maintained. Please feel free to contact me at (970) 319-5311 or Jennifer. Phelan@ci.aspen.co.us, with any questions you may have. If you would like to send us a revised letter of credit in the reduced amount, we will be happy to return the previous letter of credit upon receipt of the new letter. Kind regards, 122Â©LL Jennifer Phelan Deputy Planning Director Community Development Department ~ City of Aspen 130 SOUTH GALENA STREET ASPEN, COLORADO 81611-1975 Â· PHONE 970.920.5090 FAx 970.920.5439 Printed on Recycled Paper :2Vt.#i. fÂ·Â·11,sphsÂ·Â·i Bank of America 4~4* 2>+87-F-~f* BANK OF AMERICA - CONFIDENTIAL PAGE: 1 DATE: JULY 29, 2011 IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3117678 ISSUING BANK BANK OF AMERICA, N.A. 1000 W. TEMPLE STREET 7TH FLOOR, CA9-705-07-05 LOS ANGELES, CA 90012-1514 BENEFICIARY APPLICANT CITY OF ASPEN, COLORADO SNOWMASS CORPORATION 130 SOUTH GALENA STREET 229 MIDLAND AVE ASPEN, CO 81611 BASALT, CO 81621 AMOUNT NOT EXCEEDING USD 500,807.25 NOT EXCEEDING FIVE HUNDRED THOUSAND EIGHT HUNDRED SEVEN.AND 25/100'S US DOLLARS Â»AD el Â»,063.-Â«204,1- EXPIRATION DECEMBER 31, 2012 AT OUR COUNTERS WE HEREBY ESTABLISH IN YOUR FAVOR OUR. IRREVOCABLE STANDBY LETTER OF (23 CREDIT NUMBER 3117678 WHICH IS AVAILABLE WITH BANK OF AMERICA, N.A. 9/04Â£\L BY PAYMENT AGAINST PRESENTATION OF THE ORIGINAL OF THIS LETTER OF CREDIT AND YOUR DRAFTS AT SIGHT DRAWN ON BANK OF AMERICA, N.A., ACCOMPANIED BY THE FOLLOWING DOCUMENT: BENEFICIARY'S SIGNED STATEMENT STATING: " WE HEREBY CERTI FY THAT SNOWMASS CORPORATION HAS FAILED TO SECURE THE OBLIGATION PURSUANT TO SECTION TWO (2) OF THE SECOND AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION." WE HEREBY AGREE WITH YOU THAT DOCUMENTS PRESENTED IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US AT BANK OF AMERICA, N.A., 1000 W. TEMPLE STREET, 7TH FLOOR, MAIL CODE: CA9-705-07-05, LOS ANGELES, CA 90012-1514 ATTN: STANDBY LETTER OF CREDIT DEPARTMENT ON OR BEFORE THE EXPIRATION DATE AS SPECIFIED HEREIN. THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES 1998, INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590 AND ENGAGES US PURSUANT TO THE TERMS THEREIN. IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS TRANSACTION, PLEASE CALL 1-800-541-6096 OPT 1. AUTHORIZED SIGNATURE ORIGINAL 05-17-14868 03-2010 ANNIE H. MATIAS Jennifer Phelan From: Donna Grauer [DGrauer@clre.com] Sent: Wednesday, February 08, 2012 11:59 AM To: Jennifer Phelan CC: Andrew Light; Venturo, Christine; Jim Light Subject: FW: 300 Spring Street - Letter of Credit Reduction Jennifer...our understanding is the the Framing Inspection has occurred and that letter of credit may be reduced by 1/4. BOA indicated in the email below whatthe Bank requests. of credit amendment may be in any form that is a record and is authenticated by signature. So the city should send you something signed. They could take the original letter of credit, write on that it is reduced by that amount and sign it. That way, if by the off chance they assign the letter of credit, the assignee will be on notice of the reduction. We would like to expedite this if at all possible. Please call me if you have any questions. I will follow up with you with a call today today on timing. Regards, Donna Confidentiality Notice: This e-mail message, including any attachments, is forthe sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. [Donna Grauer Chaffin/Light Management L19 Midland Avenue; f'.C).box 620 basalt, CO 81021 470-270-ZOZO, 970-0 27-+43,7 (fax) , f?70-fee 1 9 1 (Celi) From: Venturo, Christine [mailto:christine.venturo@bankofamerica.com] Sent: Friday, January 27, 2012 4:16 PM To: Donna Grauer Cc: Castillo, Francia A Subject: RE: 300 Spring Street - Letter of Credit Reduction Donna, Section 5-104 says a letter of credit amendment may be in any form that is a record and is authenticated by signature. So the city should send you something signed. They could take the original letter of credit, write on that it is reduced by that amount and sign it. That way, if by the off chance they assign the letter of credit, the assignee will be on notice of the reduction. Please work with Francia on getting this processed while I am away. Thanks Christine Venture Special Assets Group Bank of America 200 Glastonbury Blvd/CT2-545-02-06 Glastonbury, CT 06033 860-657-7094 1 From: Donna Grauer [mailto:DGrauer@clre.com] Sent: Friday, January 27, 2012 4:12 PM To: Venturo, Christine Cc: Andrew Light; Jim Light Subject: FW: 300 Spring Street - Letter of Credit Reduction Christine...please advise if this emai chain from the City of Aspen I is sufficient to reduce our letter of credit, by $125,201.81...or if you need a letter from the City. iI would like to then take out $125,201.81 from our Snowmass Corp collateral account and apply $5K of that to the Finance Fee and the remainder to the loan balance. I know you are going on vacation...so if there is someone who I can work with while you are out of town that would be great. From: Jennifer Phelan [Jennifer.Phelan@ci.aspen.co.us] Sent: Friday, January 27, 2012 1:17 PM To: Donna Grauer Cc: Andrew Light Subject: RE: 300 Spring Street - Letter of Credit Reduction Hi Dona: I've reviewed the documents for the release of 25% (or $125,201.81) of the financial guarantee and have put a call into our field inspector to confirm the framing inspection. Do you just need an email from me saying release of a percentage of financial guarantee is okay or do you need something more formal for the bank? Thanks, Jennifer Jennifer Phelan, AICP Deputy Planning Director Community Development Department City of Aspen 130 S. Galena St. Aspen, CO 81611 970-429-2759 www.aspenpitkin.com From: Donna Grauer [mailto:DGrauer@clre.com] Sent: Thursday, January 26, 2012 7:10 PM To: Jennifer Phelan Cc: Andrew Light Subject: 300 Spring Street - Letter of Credit Reduction Jennifer...thanks for your voice message and sorry for all the phone tag. If there is information you can provide via email to get this process started please do so. We are anticipating the framing inspection this week (or next) and the allowable reduction of 25% of the City of Aspen letter of credit. We will need authorization to our lender Bank of America that the City is okay to release. Let me know via email. Additionally, perhaps we can schedule a call tomorrow afternoon after 2PM ...let me know. regards, Donna Confidentiality Notice: Thise-mail message, including any attachments, is forthe sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are notthe intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. EDonna Grauer Chaffin/Light M anagement 219 Midland Avenue; F.O.box 62.0 basalt, CO 8 1 62.1 2 52_.Sfima-_ 53>0 zÂ«ID 56-2 -Efoi-1 -2 1.~~ ,1- .z__ orz~ct 34 00.26 I U73 11 ' 43 k SECOND AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION Ft.h 36; This Second Amendment to Subdivision Agreement for the Hannah Dustin Subdivision (the B "Second Amendment") is made this 29Â·*4 day of'12**u61*21 , 2009, by and among the CITYOF ASPEN, a municipal corporation (the "City"), the SNGWMASS CORPORATION, a Colorado corporation ("Snowmass"), and HYMAN STREET BROWNSTONES, LLC, a Colorado limited liability company ("Brownstones"). RECITALS: A. The City entered into a Subdivision Agreement for the Hannah Dustin Subdivision with Hyman Avenue Holdings, LLC, the predecessor in interest to Snowmass and Brownstones, on September 25,2006 (the "Subdivision Agreement"). B. The Subdivision Agreement was amended by a document entitled "Amendment to Subdivision for tile Hannah Dustin Subdivision" on November 7, 2006 (the "First Amendment"). C. The City, Snowmass and Brownstones desire to further amend the Subdivision Agreement and the First Amendment as set forth in this Second Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Waiver of Completion Requirement. Upon satisfaction of the requirements of Section 2, below, the provisions of Section 8.1(iii) of the First Amendment, which require the Commercial Phase to be 50% complete in order for the Residential Phase to obtain a Certificate of Occupancy shall be waived. 2 DeDOSit. As consideration for the waiver described in Section 1, above. Snowmass shall deposit the sum of $500,807.25 with the City, either in cash or in the form of an - ~ irrevocable letter of credit prior to the issuance of a Cenificate of Occupancy for the {-'*4 ubÂ«,1 Residential Phase. The deposit is intended to provide a reasonable financial \ 3&7#1 assurance that Snowmass will undertake Gonstruction of the Commercial Phase and, in particular, the affordable housing unit which is required as a condition of Commercial Phase approval. To that end, the deposit shall be forfeited and may be retained and 9-~~ 1 1,/0 931 2% utilized by the City for affordable housing purposes if a building permit for the eju, Commercial Phase has been approved but not issued by July 31, 2009, which is the date on which vested property rights are due to expire (the "Commencement Deadline"). If the vested property rights period is extended, the Commencement Deadline shall automatically be extended to the new date on which the vested property rights for the Commercial Phase are to expire. If a building permit for the Commercial Phase is issued by the Commencement Deadline, Snowmass may request and the City shall refund the deposit based upon the following schedule. Twenty-five percent (25%) of the deposit shall be refunded after the framing inspection approval has been anained. The remainder of the deposit shall be refunded after issuance of a Certificate of,Occupancy for the (3013)-Slt--2-25=1 i 5 reANdÂ»01.9LL,p~ 1â‚¬aiLL'L 0 Â°26>9( Df- G'z"~~) CD i m=Ibly ot L Commercial Phase. If a Certificate of Occupancy for the Commercial Phase has not been issued within twenty-four months after a building permit is obtained, the City shall have no obligation to refund the balance of the deposit then held by the City. Any interest accrued by the deposit of the sum of $500,807.25 with the City shall be retained by the City. 3. Completion of Residential Phase. The parties acknowledge and agree that the Residential Phase is, on the date hereof, more than 50% complete. 4. Assurance of Financing. In satisfaction of the requirements of Section 8.10ii) of the First Amendment, Snowmass shall provide the City with a written confirmation of its construction loan from Bank of America, to be delivered to the City along with the Deposit. 5. Housing Mitigation Credit. If construction ofthe Commercial Phase has not begun prior to the Commencement Deadline referred to Section 2, above, and as a result the Deposit is forfeited, Snowmass may, nevertheless, be entitled to a credit, up to $500,807.25, to be applied against affordable housing mitigation requirements associated with development of the Commercial Phase , if any, which are in addition to the requirement for construction of a two-bedroom Category H housing unit within the Commercial Phase. The credit shall only be available, however, if such unit is actually constructed within the Commercial Phase and if, as a result of expired vested property rights, additional affordable housing mitigation is required; however, the City is under no obligation to issue any credit. CITY OF ASPEN, COLORADO,~ a Colorado mun ipall corporati~ By: 0 ,/'~~~' 2 027- zody Michael . Ireland, Ma~or A .j ..4%/ ~Athryn-S. Koch~W Cirk SNOWMAAS CORPORATION. a Colorado corporati~A ,-Â»Ah#21% Â®*.fw W. IQBÂ® ab'Atf~ey-in-Fact 46; James W. Light, President HYMAN STREET BROWNSTONES, LLC, a C lorado limited liability comnany BJwj~1*r-InAARA ~ k,66ert D. Bo~den,~lanager 2 ./ --*1 SECOND AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION This Second Amendment to Subdivision Agreement for the Hannah Dustin Subdivision (the "Second Amendment") is made this 2}*4 day of'12~*Ma*21 , 2009, by and among the CITYOF ASPEN, a municipal corporation (the "City"), the SNGWMASS CORPORATION, a Colorado corporation ("Snowmass"), and HYMAN STREET BROWNSTONES, LLC, a Colorado limited liability company ("Brownstones"), RECITALS: A. The City entered into a Subdivision Agreement for the Hannah Dustin Subdivision with Hyman Avenue Holdings, LLC, the predecessor in interest to Snowmass and Brownstones, on September 25,2006 (the "Subdivision Agreement"). B, The Subdivision Agreement was amended by a document entitled "Amendment to Subdivision for the Hannah Dustin Subdivision" on November 7, 2006 (the "First Amendment"). C. The City, Snowmass and Brownstones desire to further amend the Subdivision Agreement and the First Amendment as set forth in this Second Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Waiver of Completion Requirement. Upon satisfaction of the requirements of Section 2, below, the provisions of Section 8.1(iii) of the First Amendment, which require the Commercial Phase to be 50% complete in order for the Residential Phase to obtain a Certificate of Occupancy shall be waived. 2. Deposit. As consideration for the waiver described in Section 1, above, Snowmass shall deposit the sum of $500,807.25 with the City, either in cash or in the form of an irrevocable letter of credit prior to the issuance of a Certificate of Occupancy for the Residential Phase. The deposit is intended to provide a reasonable financial assurance that Snowmass will undertake construction of the Commercial Phase and, in particular, the affordable housing unit which is required as a condition of Commercial Phase approval. To that end, the deposit shall be forfuited and may be retained and utilized by the City for affordable housing purposes if a building permit for the Commercial Phase has been approved but not issued by July 31, 2009, which is the date on which vested property rights are due to expire (the "Commencement Deadline"). If the vested property rights period is extended, the Commencement Deadline shall automatically be extended to the new date on which the vested property rights for the Commercial Phase are to expire. If a building permit for the Commercial Phase is issued by the Commencement Deadline, Snowmass may request and the City shall refund the deposit based upon the following schedule. Twenty-five percent (25%) of the deposit shall be refunded after the framing inspection approval has been attained. The remainder of the deposit shall be refunded after issuance of a Certificate of Occupancy for the 6 0 Commercial Phase. If a Certificate of Occupancy for the Commercial Phase has not been issued within twenty-four months after a building permit is obtained, the City shall have no obligation to refund the balance of the deposit then held by the City. Any interest accrued by the deposit of the sum of $500,807.25 with the City shall be retained by the City. 3. Completion of Residential Phase. The parties acknowledge and agree that the Residential Phase is, on the date hereof, more than 50% complete. 4. Assurance of Financing. In satisfaction of the requirements of Section 8.1(iii) of the First Amendment, Snowmass shall provide the City with a written confirmation of its construction loan from Bank of America, to be delivered to the City along with the Deposit. 5. Housing Mitigation Credit. If construction ofthe Commercial Phase has not begun prior to the Commencement Deadline referred to Section 2, above, and as a result the Deposit is forfeited, Snowmass may, nevertheless, be entitled to a credit, up to $500,807.25, to be applied against affordable housing mitigation requirements associated with development of the Commercial Phase , if any, which are in addition to the requirement for construction of a two-bedroom Category 11 housing unit within the Commercial Phase. The credit shall only be available, however, if such unit is actually constructed within the Commercial Phase and if. as a result of expired vested property rights, additional affordable housing mitigation is required; however, the City is under no obligation to issue any credit. CITY OF ASPEN, COLORADOv' a Colorado munwpa~coprati0 By: *Ill W./ 1-11-1009 Michael C. Ireland, Ma~or Kathryn S. Kochigty CtÂ£rk SNOWMA~ CORPORATION, a Colorado corporati~f /6tww w. 1*( ah'Att#ley-in-Fact 46; James W. Light, President HYMAN STREET BROWNSTONES, LLC, a C~10 ado Ii,7~~d ~a~ility com~)any ~ kgbert D. Bo#lden,~[anager 2 SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION THIS SUBDIVISION AGREEMENT is made and entered into this (#day of 54642006, by and between THE CITY OF ASPEN, COLORADO, a municipal corporation (hereinarter referred to as the "City") and Hyman Avenue Holdings, LLC a Colorado limited liability company (hereinafter referred to sometimes as the 'Applicant" and sometimes as "Hyman Avenue Holdings"). WITNESSETH: WHEREAS, Hymah Avenue Holdings has submitted to the Cityan "Application" consisting of a request for~approval from subdivision, various growth management reviews, commercial design review; and condominiumizaton to add 2,440 square feet of net leaseable space, two (2) free market residential units, and three (3) affordable housing units to be consolidated, platted and known as the Hannah Dustin Subdivision (the "Property"), which Application requested the approval, execution and recordation of a Final Subdivision Plat of the Property (the "Final Plat"); and WHEREAS, the City has fully considered and approved the Application, Final Plat, and the proposed development and improvement of the Property pursuant to Ordinance No. 16 (Series of 2006), and the effects of the proposed development and improvements of said Property on adjoining or neighboring properties and property owners, and WHEREAS, the City has imposed certain conditions and requirements in connection with its approval of the Application, and its execution and recordation of the Final Plat, such mattels being necessary to promote, protect, and enhance the public health, safety, and general welfare; and WHEREAS, Hyman Avenue Holdings is willing to acknowledge, accept, abide by, and faithfully perform the conditions and requirements imposed by the City in approving the Application, and the Final Plat; and WHEREAS, under the authority of Sections 26.445.070 Â© and D) and 26.480.070 (C and D) of the Aspen Municipal Code, the City is entitled to certain financial guarantees to ensure that the required public facilities are installed and Hyman Avenue Holdings is prepared to provide such guarantees that hereinafter set forlh; and WHEREAS, contemporaneously with the execution and recording of this Subdivision Agreement the City and Hvman Avenue Holdings have executed and recorded the Final Plat in Plat Book f I at Page 42~ , Reception No.53%984 in the ofice of the Cle,k and Recorder of Pitkin County, Colorado. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution, and acceptance of this Subdivision Agreement for recordation by the City, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Page: 1 of 10 {00036009.DOC / 11 1 fill'1111111111111111111 lili Ell' 111 lilli 11 lili 09/25/2006 09:lb 528933 JANICE K VOS CAUDILL PITKIN COUNTY CO R 51,00 D 0,00 ARTICLE I PURPOSE AND EFFECT OF SUBDIVISION AGREEMENT 1.1 Purpose. The purpose of this Subdivision Agreement is to, along with the Final Plat, set forth the complete and compehensive understanding and agreement of the parties with respect to the development of the Hannah Dustin Subdivision and to enumerate all terms and conditions under which such development may occur. 1.2 Effect. It is the intent of the parties that this Subdivision Agreement and the Final Plat shall effectively supersede and replace in their entirety all previously recorded and unrecorded subdivision, condominium, and other land use approvals and related plats, maps, declarations, and other documents and agreements encumbering the Property, including and without limitation those matters identified in Article V below (collectively, the "Prior Approvals and Instruments"), but expressly excluding the following which shall not be superseded and replaced bv this Subdivision Agreement: (a) The terms and conditions of City of Aspen Ordinance No. 16, Sedes of 2006, recorded on July 12, 2006 as Reception No. 526319, Pitkin County, Colorado; (b) The terms and conditions of the Amended and Restated Condominium Declaration of Hannah Dustin, a Condominium, recorded on August 29,2006 as Reception No. 527925, Pitkin County, Colorado (including any subsequent amendments thereto); and (c) The terms and conditions of the First Amended Plat of the Hannah Dustin Condominiums, recorded on August 29,2006 in Plat Book 80 at Page 3, Reception No. 627927, Pitkin County, Colorado (including any subsequent amendments thereto). ARTICLE 11 ZONING AND REGULATORY APPROVALS 2.1 Approval Ordinances. Pursuant to Ordinance No. 16 (Series of 2006), the Aspen City Council granted Subdivision approvals, providing for the development an additional 2,440 s. f. of net leasable space, two (2) free-market residential units, and three (3) deed-restricted affordable housing units, on the Property located at 300 South Spring Street, Aspen, Pitkin County, Colorado (collectively, the "Project"). This Subdivision Agreement and the Final Plat incorporate all of the pertinent provisions of Ordinance No. 16 (Series of 2006). In the event of any inconsistencies between the provisions of Ordinance No. 16 (Series of 2006) and the provisions of this Subdivision Agreement and the Final Plat, the plovisions of this Subdivision Agreement and the Final Plat shall control. 2.2 Dimensional Requirements. Ordinance No. 16 (Series of 2006) established and approved a multi-family building consisting of two (2) free-market residential units and three (3) deed-restricted affordable housing units of the Hannah Dustin Subdivision. The redevelopment of the building as presented complies with the dimensional requirements of the Mixed-Use (MU) Zone District. The structure shall meet all of the required Commercial Design Standards applicable to a multi-family building. Compliance with these requirements will be verified by the City of Aspen Zoning Officer at the time of building permit review. 2.3 Off-street Parking. The project shall provide sixteen (16) off-street parking spaces, four (4) of which shall be designated for the use of the free market residential units, three (3) of which {00036009.DOC/ 1} 2 528933 11-- 111111111 --11111111 -lilli 11111111111111 09/25/2006 09:12t Page: 2 of 10 JAICCE K VOS JA-DILL PIT EN COLF.TY CO R 51.00 D 0.00 shall be designated for use by the affordable housing units, and nine (9) required spaces which shall be for the use of the commercial space and guest parking. 2.4 Affordable Housing. The affordable housing units shall be in compliance with the Aspen/Pitkin County Housing Authority's Employee Housing Guidelines. The Applicant shall record a deed restriction on each of the affordable housing units at the time of recordation of the condominium map and prior to the issuance of a Certificate of Occupancy for the building, classifying the units as Category 2 units. Included in the governing documents shall be language reflecting the potential for the units to become ownership units. If the Applicant chooses to deed restrict the affordable housing units as rental units, the Applicant shall convey a 1/10 of a percent, undivided interest in the units to the Aspen/Pitkin County Housing Authority pMor to the issuance of a certificate of occupancy on any portion of the building. The units may be deed-restricted as rental units, but the units shall become ownership units at such time as the owners would request a change to "for-sale" units or at such time as the Aspen/Pitkin County Housing Authority deems the units to be out of compliance with the rental occupancy requirements in the AfTordable Housing Guidelines for a period of more than year. ARTICLE 111 APPROVALS AND EXEMPTIONS 3.1 Sidewalk and Landscaping Improvements. Prior to issuance of a certificate of occupancy for any portion of the development, the Applicant shall have installed a sidewalk with a parkway strip meeting the City Engineefs design requirements along the entire lot frontage abutting East Hyman Avenue. Appropriate street tree plantings shall occur in the parkway strip along the property frontage on both East Hyman Avenue and South Spring Street. The Applicant shall submit a landscaping plan for plantings in the right-of-way for review and approval by the City Parks Department prior to installation of right-of-way plantings. 3.2 Trash/Utility Service Area. A trash/utility service area with a linear footage of fourteen (14) feet and a depth of ten (10) feet shall be provided between the existing building and the alleyway. A trash compactor shall be installed to justify the reduction in the trash/utility/recycling area. 3.3 School Lands Dedication Fee. Pursuant to Land Use Code Section 26.630, School Lands Dedication, the Applicant shall pay a fee-in-lieu of land dedication in conjunction with any residential development in the subdivision. The Applicant shall pay the school lands dedication fee associated with the subdivision as calculated by the City Zoning Officer using the dedication schedule prior to building permit issuance as set forth in Land Use Code Section 26.630.030, School Lands Dedication: Dedication Schedule. The Applicant shall provide the market value of the land including site improvements, but excluding the value of structures on the site. 3.4 Park Development Impact Fee. Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a park development fee in the amount of $19,176,20 prior to building permit issuance. The fee is assessed based on the following calculation: Proposed Commercial: 2,440 s. f. of new net leasable square feet multiplied by $1,530.00 per 1,000 s.f. = $3,733.20 {00036009.DOC,/ 1} 3 09/25/2006 09: 12I 528933 Page: 3 of 10 JANICE K VOS CAUDILL PITK.N COUNTY CO R 51.00 D 0.00 Proposed Residential: 2 (four-bedroom) Free Market Residential Units multiplied by $3,634 per unit = $7,268.00 3 (two-bedroom) Residential Units multiplied by $2,725 per unit = $8,175.00 Total: $19,176.20 3.5 Impact Fees. The Applicant will pay all impact fees shall be paid prior to the issuance to the issuance of a building permit. 3.6 Employee Housing Mitigation. The development shall contain gross affordable housing floor area equal to or greater than 30% free-market residential floor area. This percentage shall be verified by the City Zoning Officer prior to building permit issuance. 3.7 Water Department Standards. Hyman Avenue Holdings shall comply with the City of Aspen Water System Standards, with Title 25 of the City of Aspen Municipal Code, and with applicable standards of Title 8 of the City's Municipal Code (Water Conservation and Plumbing Advisory Code), as required by the City of Aspen Water Department. Each of the units within the building shall have individual water meters. 3.8 Sanitation District Standards. The Applicant shall comply with the Aspen Consolidated Sanitation District's rules and regulations with respect to the Project: (a) Sanitation service is contingent upon Hyman Avenue Holdings compliance with ACSD rules, regulations, and specifications at the time of construction; (b) All clear water connections are prohibited, i.e., ground water (roof, foundation, perimeter, patio drains), including entrances to underground parking garages (if any); (c) All improvements below grade development shall require installation of a pumping station; (d) Shared service line agreements are required where more than one unit is served by a single service line; (e) All ACSD total connection fees must be paid prior to the issuance of a building permit. 3.9 Electrical Department Requirements. The Applicant shall have an electMc connect load summary conducted by a licensed electrician in order to determine if the existing transformer on the neighboring property has sufficient capacity for the Hannah Dustin Redevelopment. If a new supplemental transformer is required to be installed on the subject property, the Applicant shall provide for a new transformer and its location shall be approved by the Community Development Department prior to installation. The Applicant shall dedicate an easement to allow for City Utility Personnel to access the supplemental transformer for maintenance purposes, if a supplemental transformer is installed. 3.10 Subdivision Plat. The Final Plat shall be recorded in the Office of the Clerk and Recorder of Pitkin County, Colorado within 180 days after City Council's final approval of Ordinance No. 16(Series of 2006). 3.11 Subdivision Agreement. This Subdivision Agreement shall be recorded within 180 {00036009.DOC# 1 1 4 111111'l lilli lll lilli -11 lilli 1 111111 li l i 09/25/2006 09:la 528933 Page: 4 of 10 JANICE K VOS CAUDILL PITK N COL.. -Y CO R 51.00 0 0.00 days after the City's grant of final approval of the Project (Ordinance No. 16, Series 2006). 3.12 Fire Department Requirements. The Applicant shall install a fire sprinkler system and alarm system that meets the requirements of the Fire Marshal. 3.13 Building Permit Requirements. Any building permit application for the Project shall include and/or depict the following information: (a) A signed copy of Resolution No. 09 (Series of 2006) and Ordinance No. 16 (Series of 2006) granting final land use approval. (b) The conditions of approval of Ordinance No. 16(Series of 2006) shall be printed on the cover page of the building permit set. (c) A completed tap pemilt for sewer service from ACSD. (d) A drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which maintains sediment and debris on-site during and after construction. If a ground recharge system is required, a soil percolation report will be required to correctly size the facility. A 5-year storm frequency should be used in designing any drainage improvements. (e) Construction Management Plan pursuant to the Building Department's requirements. The Construction Management Plan shall include an identification of construction hauling routes, construction phasing, and a Construction Traffic and Parking plan for review and approval by the City Engineer and Streets Department Superintendent. The Construction Management Plan shall conform to the standards and requirements for construction management plans in effect at the time of building permit submission. (f) A fugitive dust control plan to be reviewed and approved by the City Engineering Department. (g) A detailed excavation plan that utilizes vertical soil stabilization techniques for review and approval by the City Engineer. 3.14 Vested Rights. The development approvals granted by the City pursuant to Ordinance No. 16(Series of 2006) shall constitute a site-specific development plan, which is vested for a period three (3) years from the date of issuance of a development order by the City. Article IV Prior Approvals and Instruments There are no recorded prior approvals for this Subdivision. Article V Subdivision Improvements 400036009.DOC/ 1 } 528933 1111111111 lilli ll' 1111111111111111111111 lili lll 09/25/2006 09: 12i 5 Pagâ€¢: 5 of 10 JANICE K VOS CAUDILL PITKIN COUN-Y CO R 51.00 0 0,00 Prior to the issuance of any Certificate of Occupancy with respect to the Project, Hyman Avenue Holdings shall accomplish the following subdivision improvements (collectively, the "Subdivision Improvements"), all as further depicted and described on the Final Plat: (1) installation of a detached sidewalk, location of the existing driveway entrance, with a parkway strip meeting the City Engineer's design requirements along the entire lot frontage abutting East Hyman Avenue, along with two ANSI-conforming handicapped ramps at the Hyman and Spring intersection, and curb replacement for the existing driveway cut on Hyman Avenue, at an estimated cost of (2) installation of appropriate parkway plantings, including trees, grass, and irrigation, in the parkway strip along the property frontage on both East Hyman Avenue, at an estimated cost of I ; In order to ensure construction and installation of the Subdivision Improvements (1) and (2) described immediately above, Hyman Avenue Holdings shall provide to the City either an irrevocable standby letter of credit from a financially responsible lender or a bond in the amount of Said letter of credit or bond shall be provided to the City prior to the issuance of a grading or access permit with respect to the Project, shall be in a form reasonably acceptable to the City Attorney, and shall give the City the unconditional right, upon default hereof by Hyman Avenue Holdings, subject to the provisions of Article VI below, to draw funds as necessary and upon demand to partially or fully complete and/or pay for any of such improvements or pay any outstanding and delinquent bills for work done thereon by any party, with any excess letter of credit or bond amount to be applied first to additional administrative or legal costs associated with any such default and the repair of any deterioration in Subdivision Improvements already constructed before the unused remainder, if any, of such letter of credit or bond is released to Hyman Avenue Holdings. Notwithstanding the foregoing, delays or other problems resulting from acts of God or other events beyond the reasonable control of Hyman Avenue Holdings shall not constitute a default hereunder so long as a good faith effort is being made to remedy the problem and the problem is in fact resolved within a reasonable period for time following its occurrence. As portions of the Subdivision Improvements are completed, the City Engineer shall inspect them, and upon approval and written acceptance, he shall authorize a reduction in the outstanding amount of the letter of credit or bond equal to an agreed upon estimated cost for the completed portion of the Subdivision Improvements; provided, however that ten percent (10%) of the estimated costs shall be withheld until all of the Subdivision Improvements are completed and approved by the City of Aspen Public Works Director. It is the express understanding of the parties that compliance with the procedures set forth in Article V! below pertaining to the procedure for default and amendment to this Subdivision Agreement shall be required with respect to the enforcement and implementation of these financial assurances and guarantees to be provided by Hyman Avenue Holdings as set forth above. Article VI Non-Compliance and Request for Amendments or Extensions In the event that the City determines that Hyman Avenue Holdings is not acting in NAMAQU8698 mpliance with the terms of this Subdivision Agreement or the Final Plat, the City 6 111 w'11111111111IiI 1111111 11111111111 09/25/2006 09: lb 528933 Page: 6 of 10 JANICE K VOS CHUDILL PITKIN COLÂ·.--Y CO R 51,00 D 0.00 shall notify Hyman Avenue Holdings in writing specifying the alleged non-compliance and asking that Hyman Avenue Holdings remedy the alleged non-compliance within such reasonable time as the City may determine, but not less than 30 dajs. If the City determines that Hyman Avenue Holdings has not complied within such time, the City may issue and serve upon Hyman Avenue Holdings a written order specifying the alleged non-compliance and requiring Hyman Avenue Holdings to remedy the same within thirty (30) days. Within twenty (20) days of the receipt of such order, Hyman Avenue Holdings may file with the City Engineering Department either a notice advising the City that it is in compliance ora written request to determine any one or both of the following matters: (a) Whether the alleged non-compliance exists or did exist: or (b) Whether a variance, extension of time or amendment to the Final Plat orthis Subdivision Agreement should be granted with respect to any such non-compliance which is determined to exist. Upon the receipt of such request, the City shall promptly schedule a meeting of the parties to consider the matters set forth in the order of noncompliance. The meeting of the parties shall be convened and conducted pursuant to the procedures normally established by the City. If the City determines that a non-compliance exists which has not been remedied, it may issue such orders as may be appropriate, including the imposition of daily fines until such non-compliance has been remedied, the withholding of permits and/or certificates of occupancy, as applicable; provided, however no order shall terminate any land use approval. The City may also grant such variances, extensions of time or amendments to the Final Plat orto this Subdivision Agreement as it may deem appropriate under the circumstances. The parties expressly acknowledge and agree that the City shall not unreasonably refuse to extend the time periods for performance hereunder if Hyman Avenue Holdings demonstrates that the reasons for the delay(s) which necessitate said extension(s) result from acts of God or other events beyond the reasonable control of Hyman Avenue Holdings, despite good faith efforts on its part to perform in a timely manner. Article VII General Provisions 7. 1 Successors and Assigns. The provisions hereof shall be binding upon and inure to the benefit of Hyman Avenue Holdings and the City and their respective successors and assigns. 7.2 Governing Law. This Subdivision Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 7.3 Inconsistency. If any of the provisions of this Subdivision Agreement or any paragraph, sentence, clause, phrase, word, or section or the application thereof in any circumstance is invalidated, such invalidity shall not affect the validity of the remainder of this Subdivision Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstance shall not be affected thereby. 7.4 Integration. This Subdivision Agreement and any exhibits attached hereto contains the entire understanding between the parties hereto with respect to the transactions {00036009.DOC/ 1} 7 1--1 lilli -1111111-lilli--lili-lillil 09/25/2006 09:12I 528933 Page: 7 of 10 JAN . LE K VOS CAU_ILL F ITK I COU.TY C. R 51.00 D 0.00 contemplated hereunder. Hyman Avenue Holdings and its successors and assigns may on its own initiative petition the City Council for an amendment to the Final Plat orthis Subdivision Agreement or for an extension of one or more of the time periods required for the performance hereunder. The City Council shall not unreasonably deny such petition for amendment or extension after considering all appropriate circumstances. Any such amendment or extensjon of time shall only become effective upon the execution by all parties hereto that are affected by the proposed amendment. 7.5 Headings. Numerical and title headings contained in this Subdivision Agreement are for convenience only, and shall not be deemed determinative of the substance contained herein. As used herein, where the context requires, the use of the singular shall include the plural and the use of any gender shall include all genders. 7.6 Acceptance and Recordation of Final Plat. Upon execution of this Subdivision Agreement by both parties hereto, the City agrees to approve and execute and the Final Plat and to accept the same for recordation in the Office of the Clerk and Recorder of Pitkin County, Colorado, upon payment of the recordation fees by Hyman Avenue Holdings. 7.7 Notice. Notices to be given to the parties to this Subdivision Agreement shall be considered to be given if delivered by facsimile, if hand delivered, or if delivered to the parties by registered or certified mail at the addresses indicated below, or such other addresses as may be substituted upon written notice by the parties or their successors or assigns: The City: City of Aspen City Manager; Community Development Director 130 South Galena Street Aspen, Colorado 81611 Hyman Avenue Holdings: Hyman Avenue Holdings, LLC do Peter Fomell 402 Midland Park Place Aspen, CO 81611 Facsimile: (970) 925-6767 With a copy to: Curtis Sanders, Esq. Krabacher & Sanders, PC 201 North Mill Street Aspen, CO 81611 Facsimile: (970) 925-1181 528933 ilill lilillilll li Il l li I 1 illill -- illllilli Page: 8 of 10 09/25/2006 09: 121 JANI_E K VOS CAUNLL PIT I COUNTY C_ R 51.00 D 0.00 ;00036009.DOC/ 1} IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: CITY OF /\SPEN,@4~~DO, a Colorado municipal corporation, By: Kathryn S. Koc~*ity Clerk APPROVED AS TO FORM: 74ft LAP)AZE 1.John Worcekldr, City Attorney Hyman Avenue Holdings: Hyman Avenue Holdings, LLC, a Colorado limited liability company, as owner of Unit A, Hannah Dustin Condominiums, according to the First Amended Plat of the Hannah Dl.latiA Condominiums, recorded on August 29, 2006 in Pl# 0ook 80 at Page 03Reception No. 627927, Pitkin (22$ Catecado. A .At I Â£14-jâ‚¬y By: Pete~omell, as Its Managing Member Hyman Avenue Holdings, LLC, a Colorado limited liability company, as owner of Unit A, Hannah Dustin Condominiums, according to the First Amended Plat of the Hannah DAirptondominiums,Forded on August 29, 2006 in 104%6100-4Pagp,6, Heception No. 627927, Pitkin Cbutt0,to~r~9%. By: Petdr Fo 1, as its Managing Member ~ 528933 Page: 9 of 10 09/25/2006 09:11 JANIZE K VOS Z..DILL PITKIN CoaTY CO R 51,00 0 0.00 {00036009.DOC / 1} 9 STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 2~i day of 3;021,~006 by Helen Klanderud as Mayor of the City of Aspen, Colorado, a municipal corporation. Witness my hand and official seal, AM.Â»TA 23-94 Â·..''09. My commission expires: 1<240~ 01 , -I. v ' Al : 1- t. Notary Public ~ r / j STATE OF COLORADO ) :lly Comm= ..... ...3 :3272009 ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this'27 'day ofJO{*#Impe#ky Kathryn S. Koch, City Clerk of the City of Aspen, Colorado, a municipal corporgtiÂ®.4.9.Moo #2A.Â·f>r A 4 ~*A Witness my hand and official seal, '42.: 9-, My commission expires: 91-2+,4 3 U 1/: ~L~ ~.4 -2 .u 20 Notary Public 6 l... U f 4 â„¢ 4 1 ILI~' #'1 .Ollim,.Â·- * 1:*v.cs 09/25/2009 STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 14*lay of9â‚¬10, 2006 by Peter Fomell, Managing Member of Hyman Avenue Holdings, LLC, a Colorado limited liability company. Witness my hand and official seal, My commission expires: Brandi L. Jepson / Notary Public My Commission Expires 07/25/2009 Notary Public 601 E. Hopkins Aspen, CO 81611 -TAF5~.<L/8 528933 Page: 10 of 10 1 ilill ilill lilli .ill lill ili lilli il liEll 1] 111 09/25/2006 09:121 ~ BRANDI L. : 0., JEPSON S JANICE K VOS CAUDILL . ITKIN COUNTY CO R 51.00 D 0.00 {00036009.DOC; l } 148838(64'~ 10 AMENDMENT TO SUBDIVISION AGREEMENT FOR THE HANNAH DUSTIN SUBDIVISION This AMENDMENT TO SUBDIVISION AGpEEMENT FOR THE HANNAH DUSTIN SUBDIVISION (this "Amendment") is made this 9-in day of November, 2006 by and among the City of Aspen, Colorado, a municipal corporation (the "City"); Hyman Avenue Holdings, LLC, a Colorado limited liability company ("HAH") and The Snowmass Corporation, a Colorado corporation ("TSC"). RECITALS A. HAH and the City are parties to that certain Subdivision Agreement for the Hannah Dustin Subdivision recorded in the real estate records of Pitkin County, Colorado on September 25,2006 under Reception No. 528933 (the "Subdivision Agreement"). B. The SIA applies to certain real property in Pitkin County, Colorado known as the Hannah Dustin Subdivision, according to the Plat recorded in Plat Book 81 at Page 44 as Reception No. 528934 (the "Subdivision"). C. Subsequent to the recordation ofthe Subdivision Agreement, HAH conveyed to TSC a portion of the Subdivision legally described as Unit A, Hannah-Dustin Condominiums, according to the Plat thereof recorded October 2,1985 in Plat Book 17 at Page 78 as Reception No. 271969 and First Amended Plat ofthe Hannah Dustin Condominiums recorded August 29,2006 in Plat Book 80 at Page 3 as Reception No, 527927, and as defined and described by the Amended and Restated Condominium Declaration of Hannah-Dustin, a condominium recorded August 29,2006 as Reception No. 527925 and as shown on the Hannah Dustin Subdivision Plat, recorded September 25,2006 in Plat Book 81 at Page 44 as Reception No. 528934 CUnit "A"). D. The City, HAH and TSC desire to amend the Subdivision Agreement as set forth in this Amendment. AGREEMENT Now therefore, for good and valuable considerations, the receipt and sufficiency of which are hereby confessed and acknowledged, the City, HAH and TSC hereby amend the Subdivision Agreement as follows: 1. There is hereby added to the Subdivision Agreement a new Article VIII captioned "Project Phasing/Certificates of Occupancy" as follows: Article VITI Project Phasing/Certificates of Occupancy 8.1 Residential and Commercial Phases. The parties acknowledge that the Project may be constructed in phases: The residential phase (the *'Residential Phase'D, consisting of two (2) free-market residential units, two (2) affordable housing units, and ten (10) parking spaces in an underground parking garage (the "Garage"); and the commercial phase (the "Commercial Phase"), consisting of 2,440 square feet of office space and one (1) affordable housing unit, The Residential Phase will be constructed on Unit B of the Hannah Dustin Condominiums according to the First Amended Plat thereof recorded August 29, 111 lilli-111 - 111- 11111 - 11- -lili lili 11/09/2006 09:53 530875 Page: 1 of 3 JANIÂ·-E K VOS C..â€žDILL PITKI.. .JLK FY CO R 16.00 0 0.00 2006, as Reception No. 627927 in the office of the Clerk and Recorder of Pitkin County (the "Condominium Plat"). The Commercial Phase will be constructed on the westerly half of the property described as Unit A of the Hannah Dustin Condominiums on the Condominium Plat. It is also acknowledged that each phase contains elements (affordable housing units and parking) that are required to serve and mitigate impacts for the entire Project. The City agrees that each of the Residential Phase and Commercial Phase may be undertaken and completed separately and independently ofthe other and that a Certificate of Occupancy shall be issued for each phase, independently of the other, provided that (i) construction for which a Certificate of Occupancy is being requested has been completed in accordance with relevant building permits to the extent that it qualifies for a Certificate of Occupancy pursuant to the City's building regulations, (ii) no default exists under the terms of this Agreement and, (iii) the other phase of the Project has obtained a building permit, is at least fifty percent (50%) complete and that the City has received reasonable assurances from the developer of the incomplete phase that such developer has or can obtain adequate funds to complete that phase. For purposes of this Agreement, a phase of the Project shall be deemed to be fifty percent (50%) complete when the framing inspection approval has been attained. The parties also understand that a Certificate of Occupancy will not be issued for any phase of the Project if the physical access to such phase is provided through or across areas of the other unfinished phase that are dangerous due to ongoing construction. 8.2 Garage. Upon completion of construction of the Garage to the extent necessary for the Garage to function as a parking garage (and prior to completion of the remainder of the Residential Phase, including other elements of the Residential Phase that may be located in the Garage such as mechanical rooms) and provided that (i) construction of the Garage has been completed in accordance with relevant building permits to the extent that it qualifies for a Certificate of Occupancy pursuant to the City's building regulations, and (ii) no default exists under the terms of this Agreement, a Certificate of Occupancy shall be issued for the Garage (but not the remainder of the Residential Phase). Upon issuance of the Certificate of Occupancy for the Garage, the owner of the Residential Phase shall be entitled to condominiumize the parking spaces in the Garage. 2. HAH signed the Subdivision Agreement in two places and there is a typographical error in HAH's second signature block. The reference in the second signature block for HAH to "Unit A, Hannah Dustin Condominiums..."is hereby corrected to make reference to "Unit B, Hannah Dustin Condominums...." 3. The Subdivision Agreement, as amended by this Amendment, remains in full force and effect. IN WITNESS WHEREOF, the parties have hereunto set their hands as of the day and year first above written. City of Aspen â‚¬0~19â€žColorado municipal corporation Helen Klanderud, MEor ~ Attest: / >y/4-- 11--[Eli - --111-111111-lilli Illilli 11/09/2006 09:53 530875 Page: 2 of 3 U /U-i) f By:At/'(--Altu -t -) JANICE K VOS O _DILL r ITKIN 2.-6. rY CO R 16,00 D 0.00 KAryn S, KÂ°5!ty-ilf Clerk' [Signatures Continue on Following Page] 2 530875 11'IN' 111111111111111111'll lilli 111Ill lilli lili lili 11/09/2008 09:53 Page: 3 of 3 JANICE K VOS CAUDILL PITKIN COUNTY CO R 16.00 0 0.00 Approved as to Form: /*.-A h '41 3 (Aelst*,S- John Wbrerset, City Attorney Hyman~1'enti~lold~i, LLC, a Colorado limited liability company By: 11 M vr----1 Peter ForÂ§dil, as its Managing Member The Snowmass Corporation,a Colorado corporation PrinÂ¢1*le: 7-B -3 4. CU 5 1.r Titlehfftil#tfllK STATE OF - ) ) SS. COUNTY OF 71** ) The foregoing instrument was acknowledged before me this.~114day of ~Eg~*i:'2006, by Helen K]anderud as Mayor, and byKathryn S. Koch as Clerk, on behalf ofthe City of *i#*20:1*,ado. %O Witness my hand and official seal. 0 0, 2 YA My commission expires: 01Â·~#3001- Â»"66Â£3 eguuÂ» , C Lan.,14 43 # el JACRE \ 2 A . 72 - NbtapÂ¢' Public at-Brn STATE OF(~Incao U ) SS. COUNTY OF ~113-* in ) The foregoing instrument was acknowledged before me this 6, day of 97Â« 2 ouer Fornell as Managing Member of Hyman Avenue Holdings, LLC. Witness my hand and official seal # 44 e. 5.: W m My commission expires~ilid 0 i~~~~~ t-Q cll.-61,Â£,,3~ M ~ ;>. /80 ublic 8%250,1 ..08 STATE OF (/A/{7/ UU ) A A- )ss COUNTY OF Akt,oll ) 6 fit '1 1â€¢~ 41#moi 1*lowle'lged before me this CY day of UX#W 4 0- 2006, by of The Snowmass Corporation. teÂ·~*jaulf WitI#Â§#Â®y hjnd al'NFV.cial seal. itfud g &4*.p--~ My #041*8%19*Wilesu ~ 1 BluEKAMP / 8 Notary Public Mv f:nme:,91,4 CKÂ¥)1*SY92j9~~~ 3 RECEPTION#: 561638, 08/04/2009 at 08:58:26 AM, 1 OF 3. R $16.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO RESOLUTION NO. 37-B (SERIES 2009) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, TO APPROVE AN EXTENSION OF VESTED RIGHTS GRANTED BY ORDINANCE NO. 16 SERIES OF 2006 BY THE CITY OF ASPEN CITY COUNCIL FOR THE PROPERTY COMMONLY DESCRIBED AS THE HANNAH DUSTIN PROPERTY, 300 S. SPRING STREET, LEGALLY DESCRIBED AS UNIT A, HANNAH DUSTIN SUBDIVISION, CITY OF ASPEN, PITKIN COUNTY, COLORADO Parcel Identification Number 273Â®18-2-27-001 WHEREAS, the Community Development Department received an application from the Snowmass Corporation, requesting an Extension of Vested Rights pursuant to Ordinance No. 16, Series of 2006; and WHEREAS, The Aspen City Council adopted Ordinance No. 16, Series of 2006, which approved the Hannah Dustin Subdivision, and awarded Vested Property Rights status for two free market residential units, three deed-restricted affordable housing units and 2,440 square feet of office space, until July 31, 2009; and, WHEREAS, the applicant submitted the application for a three (3) year Extension of Vested Rights before the vested rights expired in 2009; and, WHEREAS, pursuant to Section 26.308.010 Vested Property Rights of the Land Use Code, City Council may grant an Extension of Vested Rights after a public hearing is held and a resolution is adopted; and, WHEREAS, the Community Development Director has reviewed the application and recommended an approval for a one (1) year Extension ofVested Rights rather than a three (3) year Extension of Vested Rights, for Unit A (Commercial Phase) of the Hannah Dustin Subdivision; and WHEREAS, the Aspen City Council has reviewed and considered an Extension of Vested Rights for Unit A (Commercial Phase) of the Hannah Dustin Subdivision under the provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Development Director, and has taken and considered public cornment at a public hearing; and, WHEREAS, the City Council finds that a three (3) year Extension of Vested Rights proposal is not consistent with the applicable land use standards; however, a two (2) year Extension of Vested Rights is consistent with the applicable land use standards; and, WHEREAS, the City Council finds that this resolution furthers and is necessary for the promotion ofpublic health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN COUNCIL AS FOLLOWS: Section 1: Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the City Council hereby approves a two (2) year Extension of Vested Rights for Unit A of the Hannah Dustin Subdivision that was approved by Ordinance No, 16, Series of 2006 by the Aspen City Council, with the new vested rights expiration date of July 31, 2011, with the following conditions: 1. That the establishment herein of a vested property right shall not preclude the application or regulations which are general in nature and are applicable to all property subject to the land use regulation by the City of Aspen including, but not limited to, building, fire, plumbing, electrical, and mechanical codes, and all adopted impact fees that are in effect at the time of building permit, unless an exemption granted in writing. Section 2: The building, 300 Spring Street, is required to provide water curtain protection for the building's openings on the east side of the building as well as sprinkler protection for any room within the building that includes an exterior wall on the east side of the building. This measure provides interim fire protection between the subject building and the building known as 707 E. Hyman Avenue until a comprehensive fire protection system for the building can be installed. The initial installation's design, or city-approved alternative fire suppression method, shall be completed by July 10,2009, or the extension o f vested rights granted within this resolution shall become null and void. The installation o f the approved design shall be completed by October 9,2009, or the extension of vested rights granted within this resolution shall become null and void. A NFPA fire sprinkler system, or city-approved alternative system, shall be installed and completed throughout the building by the expiration date of the vested rights in the event a building permit is not issued. If a building permit is issued, the system shall be installed before the issuance o f a Certificate of Occupancy. Section 3: The date upon which vested rights expire according to this resolution will be July 31, 2011, which will be considered the "Commencement Deadline" as described in the Second Amendment to Subdivision Agreement for the Hannah Dustin Subdivision, approved by Aspen City Council as Resolution No. 13, Series of 2009. Section 4: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the City Council, are hereby incorporated in such plan C j development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 5: This resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the resolutions repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions. Section 6: If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 7: A public hearing on this resolution was held the 8th day o f June, 2009, in the City Council Chambers, 130 S. Galena, 15 days prior to which public notice was published in a newspaper of general circulation within the City of Aspen. FINALLY adopted, passed and approved this 8th day of June, 2009 by a 5-0 vote. Â«14/ Michael C. Ireland, Mayor ~ Attest: V'rri .A.. .)4 64- kathryn S. K~*, City Clerk Approved as to form: i )u 0 (ACl*r> Uohn P. Woltester, City Attorney ORDINANCE NO. 16 (SERIES OF 2006) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING WITH CONDITIONS THE HANNAH DUSTIN BUILDING SUBDIVISION TO ADD 2,440 SQUARE FEET OF NET LEASABLE SPACE, TWO FREE MARKET RESIDENTIAL UNITS, AND THREE AFFORDABLE HOUSING UNITS TO THE PROPERTY LOCATED AT 300 SOUTH SPRING STREET, CITY OF ASPEN, PITKIN COUNTY, COLORADO. Parcel ID: 2737-182-27-001 WHEREAS, the Community Development Department received an application from Hyman Avenue Holdings, LLC, represented by Stan Clauson Associates, LLC, requesting approval of subdivision, various growth management reviews, commercial design review, and condominiumization to add 2,440 square feet of net leasable space, two (2) free-market residential units, and three (3) affordable housing units to the Hannah-Dusting Building located at 300 S. Spring Street; and, WHEREAS, the subject property contains 12,000 square feet and is zoned MU (Mixed Use); and, WHEREAS, upon review ofthe application, and the applicable code standards, the Community Development Department recommended approval, with conditions, of the proposed subdivision and associated land use requests; and, WHEREAS, during a public hearing on April 4,2006, the Planning and Zoning Commission approved Resolution No. 09, Series of 2006, by a six to zero (6-0) vote, approving a growth management review for expansion ofmixed use development, a growth management review for free-market residential units within a mixed use development, a growth management review for affordable housing, commercial design review, a commercial design standard variance, special review to vary the utility/trash/recycling area, and recommending that City Council approve with conditions, the proposed Subdivision and condominiumization to add 2,440 square feet of net leasable space, two (2) free- market residential units, and three (3) affordable housing units to the Hannah-Dusting Building located at 300 S. Spring Street; and, WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions ofthe Municipal Code as identified herein; and, WHEREAS, the Aspen City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Planning and Zoning Commission finds that this resolution furthers and is necessary for the promotion ofpublic health, safety, and welfare. I 1--11 lilli -Ill -11111111[ [ l il li l 526319 Page: 1 of 6 07/12/2006 08:55 JANI_E K VOS - -DI-L , ITKIN COL'TY C- R 31.00 D 0 00 R NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF ASPEN CITY COUNCIL AS FOLLOWS: Section 1: Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, (and whereas the Planning and Zoning Commission approved with conditions, a growth management review for expansion of mixed use development, a growth management review for free-market residential units within a mixed use development, a growth management review for affordable housing, commercial design review, a commercial design review variance, and special review to vary the utility/trash/recycling area dimensions), the City Council approves, the proposed Subdivision and condonliniumization to add 2,440 square feet of net leasable space, two (2) free-market residential units, and three (3) affordable housing units to the Hannah- Dusting Building located at 300 S. Spring Street, with the conditions contained herein. Section 2: Plat and Agreement The Applicant shall record a subdivision plat and agreement that meets the requirements of Land Use Code Section 26.480, Subdivision, within 180 days ofapproval. Section 3: Building Permit Application The building permit application shall include the following: a. A copy ofthe final City Council Ordinance and P&Z Resolution. b. The conditions of approval printed on the cover page of the building permit set. c. A completed tap permit for service with the Aspen Consolidated Sanitation District. d. A drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which maintains scdiment and debris on-site during and after construction. If a ground recharge system is required, a soil percolation report will be required to correctly size the facility. A 5-year storm frequency should be used in designing any drainage improvements. e. A construction management plan pursuant to the Building Department' s requirements. The construction management plan shall include an identification of construction hauling routes for review and approval by the City Engineer and Streets Department Superintendent. f A fugitive dust control plan to be reviewed and approved by the City Engineering Department. g. A detailed excavation plan that utilizes vertical soil stabilization techniques for review and approval by the City Engineer. 526319 07/12/2006 08:55 JANICE K VOS CAUDLL P.[KIN COL..7 CO R 31.00 D 0.00 Section 4: Dimensional Requirements The Hannah-Dustin building shall continue to be in compliance with the dimensional requirements of the Mixed Use (MU) Zone District. The City of Aspen Zoning Officer shall verify compliance with the allowed dimensional requirements at the time of building permit submittal. Section 5: Off-street Parking The project shall provide sixteen (16) off-street parking spaces, four (4) of which shall be designated for the use of the free market residential units, three (3) of which shall be designated for use by the affordable housing units, and nine (9) of which shall be designated for the use of the commercial space and guest parking. Section 6: Sidewalk and Landscaping Improvements The Applicant shall install a sidewalk detached from the curb with a parkway strip along East Hyman Avenue for the length of the property frontage that meets the City Engineer's standards prior to issuance of a certificate of occupancy on any portion of the development. Appropriate street tree plantings shall occur in the parkway strip along the property frontage on both East Hyman Avenue and South Spring Street. The Applicant shall submit a landscaping plan for plantings in the right-of-way for review and approval by the City Parks Department prior to installation of right-of-way plantings. Section 7: Trash/Utility Service Area A trash/utility service area with a linear footage of fourteen (14) feet and a depth of ten (10) feet shall be provided between the existing building and the alleyway. A trash compactor shall be installed to justify the reduction in the trash/utility/recycling area. Section 8: Affordable Housing Unit The Applicant shall record a deed restriction on each of the affordable housing units prior to the issuance of a certificate of occupancy on the building classifying the units as Category 2 units. If the Applicant chooses to deed restrict the affordable housing units as rental units, the Applicant shall convey a 1/10 of a percent, undivided interest in the units to the Aspen/Pitkin County Housing Authority prior to the issuance of a certificate of occupancy on any portion of the building. The units may be deed-restricted as rental units, but the units shall become ownership units at such time as the owners would request a change to "for-sale" units or at such time as the Aspen/Pitkin County Housing Authority deems the units to be out of compliance with the rental occupancy requirements in the Affordable Housing Guidelines for a period of more than year. Section 9: Fire Mitigation The Applicant shall install a fire sprinkler system and alarm system that meets the requirements of the Fire Marshal in the entire building, including existing spaces. Section 10: Water Department Requirements The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing 1111111111 lilli lilli I lilli 1 lili lillil 07/12/2006 08,55 526319 Page: 3 of 6 JANICE K VOS CAUD_LL P.-IKIN COUA -Y CO R 31.00 D 0.00 Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Each ofthe units within the building shall have individual water meters. Section 11: Sanitation District Requirements The Applicant shall comply with the Aspen Consolidated Sanitation District's rules and regulations. No clear water connections (roof, foundation, perimeter drains) to ACSD lines shall be allowed. All improvements below grade shall require the use of a pumping station. If more than one unit is to be served by a single service line, the Applicant shall enter into a shared service line agreement. Section 12: Electrical Department Requirements The Applicant shall have an electric connect load summary conducted by a licensed electrician in order to determine if the existing transformer on the neighboring property has sufficient capacity for the Hannah-Dustin Redevelopment. If a new supplemental transformer is required to be installed on the Hannah-Dustin property, the Applicant shall provide for a new transformer and its location shall be approved by the Community Development Department prior to installation. The Applicant shall dedicate an easement to allow for City Utility Personnel to access the supplemental transformer for maintenance purposes, if a supplemental transformer is installed. Section 13: Exterior Lighting All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor lighting. Section 14: School Lands Dedication Fee Pursuant to Land Use Code Section 26.630, School lands dedication, the Applicant shall pay a fee-in-lieu o f land dedication prior to building permit issuance. The City of Aspen Zoning Officer shall calculate the amount due using the calculation methodology and fee schedule in affect at the time of building permit submittal. The Applicant shall provide the market value of the land including site improvements, but excluding the value of structures on the site. Section 15: Park Development Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a park development impact fee in the amount of $19,176.20 prior to building permit issuance. The fee is assessed based on the following calculation: Proposed Commercial: 2,440 SF of new net leasable square feet multiplied by $1,530.00 per 1,000 SF=$3,733.20 Proposed Residential 2 (four-bedroom) Free Market Residential Unit multiplied by $3,634 per unit= $7,268.00 3 (two-bedroom) Residential Units multiplied by $2,725 per unit= $8,175.00 Total: $19,176.20 Ill-Ill lillillillillillilill'1111111111Iii lilli lili lili 07/12/2006 08:55 526319 Page: 4 of 6 JAN~CE K VOS CAUDILL PITKIN COUNTY CO R 31,00 D 0.00 Section 16: Impact Fees All other impact fees, as applicable, at the time of building permit submission shall be paid prior to the issuance o f a building permit. Section 17: Emplovee Housing Mitigation The development shall contain gross affordable housing floor area equal to or greater than 30% o f the gross free-market residential floor area. This percentage shall be verified by the City Zoning Officer prior to building permit issuance. Section 18: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 19: This ordinance shall not effect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 20: If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 21: A public hearing on the ordinance shall be held on the 12th day of June, 2006, in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen days prior to which, a public notice ofthe same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as prq,ided by law, by the City Council of the City ofAspen on the 24th day of April, 20~ ~0*"Â»Â«-5 14-K-Pai Helâ‚¬il Idli*fK146(Eilf,-&1*or FINALLY, ac!#~Wd, pasÂ§ed and approved this 262h day of June, 2006. Att**t: Kathrn S. 1~ch, Cify Clerk Helen Kalin Klaâ€¢net'[inalayor 11111111111111111 111] lili'I - 111. m. lili'-1 lilli- 07/12/2006 08:55 ~ 526319 Page: 5 of 6 JANICE K VOS C.ww ILL PITKIN COU'TY C. R 31.00 0 0.00 4. APPROVED AS TO FORM: -46(ttnucta Jahn-Worcester, City Attorney 07/12/2006 08:5 526319 Page: 6 of 6 JANICE K VOS CAUDILL PITKIN COUNTY CO R 31.00 0 0.00 SNOWMASSCORPORATION April 27, 2012 - Via e-mail: Sara Adams, Senior Planner - sara.adams@ci.aspen.co.us Aspen Community Development Department 130 S. Galena Street Aspen, CO 81611 RE: Insubstantial Amendment to Subdivision Agreement-Hannah/Dustin Subdivision Dear Sara, On February 27,2009, the City of Aspen and Snowmass Corporation entered into the Second Amendment to Subdivision Agreement for the Hannah/Dustin Subdivision. Paragraph 2 provides that the financial security provided by Snowmass Corporation to insure completion of the Commercial Phase, including an Affordable Housing Unit, will be released upon issuance of Certificate of Occupancy for the so called Commercial Phase. The City is in the process of issuing a Conditional Certificate of Occupancy for the Commercial Phase, including the Affordable Housing Unit. Snowmass Corporation hereby request approval of an insubstantial amendment to the Second Amendment which provides that the financial security, in the form of a Letter of Credit issued by Bank of America, will be released and returned to Snowmass Corporation upon issuance of a Conditional Certificate of Occupancy for the Affordable Housing Unit within the Commercial Phase. In support of this request, Snowmass Corporation submits the following: 1. Land Use Application Form 2. Copy of Pre-Application Conference Summary 3. Deposit in the Amount of $1260 4. Fee Agreement 5. Draft Amendment to SIA Verw truly yours, /4.-0, Tofasrtorporatiot) - (E/&mes w. Light, President ACCEPTANCE: CITY OF ASPEN BY: Dated: Post om. Box 820 - 1.-It, Cole.ado 81821 970) 927-0847 RECEIVED CDR 27 2012 CITY Of= ASPEN ATTACHMENT 2-LAND USE APPLICATION COMMUNITY DEVELOPMENT PROJECT: Name: HANNAH DUSTIN SUBDIVISION 1 EXPANSION PROJECT Location: 300 SOUTH SPRING STREET. ASPEN. Co 81611 (Indicate street address, lot & block number, legal description where appropriate) Parcel ID # (REQUIRED) APPLICANT: Name: SNOWMASS CORPORATION Address: PO BOX 620, BASALT, CO 81621 Phone #: 970-927-0847 REPRESENTATIVE: Name: JAMES W. LIGHT Address: 24398 Hwy. 82, BASAIT, CO 81621 Phone #: TYPE OF APPLICATION: (please check all that apply): GMQS Exemption U Conceptual PUD O Temporary Use GMQS Allotment C Final PUD (& PUD Amendment) El TexUMap Amendment Special Review O Subdivision O Conceptual SPA ESA - 8040 Greenline, Stream E Subdivision Exemption (includes E Final SPA (& SPA Margin, Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane El Commercial Design Review E Lot Split U Small Lodge Conversion/ Expansion U Residential Design Variance U Lot Line Adjustment 1~ Other: E Conditional Use Insubstantial Amendment SIA EXISTING CONDn'IONS: (description ofexisting buildings, uses, previous approvals, etc.) EXPANSION PROJECT-SUBSTANTIALLY COMPLETE PROPOSAL: (description ofproposed buildings, uses, modifications, etc.) AMEND SIA TO AUTHORIZE RELEASE OF SECURITY UPON TSSUANCE OF CONDTTTONAT. CERTTFTCATE OF OCCUPANCY. Have you attached the following? FEES DUE: S I'LGO * Pre-Application Conference Summary 28; D 8 cl VEZÂ© E Attachment #1, Signed Fee Agreement O Response to Attachment #3, Dimensional Requirements Form Â£ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards E 3-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. 0000 RECEIVE:O APR 2 7 2012 CITY OF ASPEN COMMUNITY DEVELOPMENT CemulÂ«Rf.VELOPM[.ENT~REPARINE~T +-.. .---wyÂ«'* 'Â¥Q Illlll ~ Agreement to Pay Application Fees An agreement between the City of Aspen ("City') and Property Phone No.: 970-927-0847 Owner OD: SNOWMASS CORPORATION Email: jlight@chaffinlight.com Address of Billing Property: 300 So. Spring Street Address: Po BOX 620 (subject of Aspen, CO 81611 BASALT, CO 81621 (send bills here) application) I understand that the City has adopted, via Ordinance No. , Series of 2011, review fees for Land Use applications and the payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying ali fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. 1 understand that these flat fees are non-refundable. $ flat fee for . $ flat fee for $ flat fee for . $ flat fee for For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. 1 understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review, and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for non-payment. i agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render an application complete or compliant with approval criteria. if actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $ /.2 4 0 deposit for ~ hours of Community Development Department staff time. Additional time above the deposit amount will be billed at $315 per hour. $ deposit for hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $265 per hour. City of Aspen: Property Owner: SN0WMASS CORPORATION r._ D Chris Bendon Community Development Director , Nank./ JAMES W. LIGHT VISA ntle PRESIDENT City Use: Fees Due: $ Received: $ Nowniber. 2011 C it>' 01'.Aspen I 130 S. Galeii.1 St. I (971)) 020-5090 7 92 ASPEN/PITKIN COMMUN~ITY DEVeLOPMENT DEPAIriMENT Ms. Christine Venturo Bank of America 200 Giastonbury Blvd./CT2-545-02-06 Glastonbury, CT 06033 February 27, 2012 Dear Ms. Venturo, Thd City of Aspen is the beneficiary of a letter of credit (number 3117678) issued by the Bank of America. As part'of a development agreement, Snowmass Corporation may request a reduction of the letter of credit by twenty-five percent (25%) upon completidn of the framing inspection. As the framing inspection has been approved, the existing letter of credit of $500,807.25 may be reduced by $125,201.81. A balance of no less than $375,605.44 is required to be maintained. Please feel free to contact me at (970) 319-5311 or Jennifer. Phelan@ci.aspen.co.us, with any questions you may have. If you would like to send us a revised letter of credit in the reduced amount, we will be happy to return - the previous letter of credit upon receipt of the new letter. Kind regards, 103 14:PLL Jennifer Phelan Deputy Planning Director Community Development Department ' City of Aspen 130 SOVTH GALENA STREET Â· ASPEN, COLORADO 81611-1975 Â· PHONE 970.920-5090 Â· FAx 970.920.5439 Printed on Recycled rape Snowmass Corporation City of Aspen Please amend this credit as follows: The $500,807.25 Letter of Credit issued toSnowmass Corppration is to be reduced byo $125,201.81 with a remaining balance of $375,605.44. This deduction was authorized per the letter dated 2/27/12 from the beneficiary, City of Aspen. I understand that this amendment is subject to acceptance by the beneficiary. All other terms and conditions of the Letter of Credit remain unchanged. The bank agrees to the amendment described above. Name ofapplicant Bank of America, NA 4 -avo A /8,06 43/20 4%770*J By Signature Sign tâ€¢172\ -8 . E /3 Name and Title of Signer 0 m{*Mf~nerb , C c kt , Rp<. 12.4 FOR OFFICE USE ONLY LD O Trade Operations Mail Code # APPROVING OFFICER -(Print Name) PHONE# OFFICER TELEPHONE # Â¥AX # DDA APPLICANT A/C # APPROVING BANK OFFICE SIGNATURE CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY PLANNER: Sara Adams, 429-2778 DATE: 4/27/2012 PROJECT: 300 South Spring Street (aka Hannah Dustin) REPRESENTATIVE: Jim Light, jlight@chaffinlight.com DESCRIPTION: 300 South Spring Street Subdivision was approved in 2006 by City Council (Ordinance 16, Series of 2006). An amendment to the subdivision agreement was approved by City Council in 2009 to bifurcate the residential and commercial poruons of the project. The 2006 approvals required 50% of the commercial phase to be constructed prior to a Certificate of Occupancy for the residential phase. Due to the changes in economic climate, the applicant requested and was granted (recordation # 55691) the ability to remove the condition of approval that tied the two phases together, but a new condition was adopted that required a letter of credit for the unbuilt affordable housing unit that was approved to be in the commercial phase. The letter of credit is for approximately $500,000, equivalent to the cash in lieu for the required Category 2 two-bedroom unit. A release of 25% of the amount was granted on February 27, 2012 after completion of the framing inspection. The release of the remaining $375,605.44 is dependent on receipt of a Certificate of Occupancy for the commercial phase. The properly owner has constructed the Category 2 two-bedroom unit and has recorded a deed restriction with the Aspen Pitkin County Housing Authority (recordation #588451). The affordable housing for the project has been completed and deed restricted; however a Certificate of Occupancy has not been granted. The Engineering Department and the Parks Department have outstanding issues. The applicant requests an amendment to the Subdivision Agreement which will allow the City to refund the remainder of the letter of credit upon receipt of a Conditional Certificate of Occupancy (CCO). The property owner shall submit an application for an Insubstantial Subdivision Amendment, which is an administrative review. The Subdivision Amendment will propose language that is acceptable to Community Development and the City Attorney's offices in the form of a recordable letter that is signed by the Community Development Director and the owner of the property. Land Use Code Section(s) 26.304 Common Development Review Procedures 26.480.080.A Insubstantial Subdivision Amendment Land Use Code: htlp:#www.aspenpitkin.com/Departments/Community-DevelopmenUPIannino-and- Zoning/Title-26-Land-Use-Code/ Land Use Application: http://www.aspenpitkin.com/Portals/0/docs/City/Comdev/Apps%20and%20Fees/landuseappform.pdf Review by: - Staff for complete application Planning Fees: $1,260 for an administrative planning review. This includes 4 hours of staff review time. Additional time over 4 hours will be billed at $315 per hour. Total Deposit: $1260. To apply, submit the following information: 1. Total deposit for review of the application. 2. Completed Land Use Application Form. 3. A letter signed by the applicant, with the applicant's name, address and telephone number in a letter signed by the applicant, which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. 4. 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. 5. A written description of the proposal and an explanation in written form of how the proposed development complies with the review standards. 6. Draft amendment to the subdivision improvement agreement 7. 1 Copies of the complete application. 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. RECEIVED ~ Building Department APR 2 7 2012 Credit Card Authorization Form CITY OF ASPEN THE On OF ASPEN COMMUNITY DEVELOPMENT Please fax back to 970-920-5440 Date: ; ~)1.1 77,7 O l z- Permit Number: Permit Address: Description of Fees to be Charged: Amount Approved: $ /, 2-6,0 6% Type of Card: Visa MasterCard Discover Credit Card Number: 4 3.4 - 01 30 - 1 9- 9 9 -~ Exp. Date: Clf ~ C q Secure ID#(CVCcode): 3=2 5 25 46 - 3% i Name As It Appears On Card: An 09 (L J ; 5 k r Credit Card Billing Address: 307-620 < 1., Â£7 6 2 ( 1 zip: 8/620 Signature: ~~ /1.L Â£ U /9 , r.1 r â‚¬ PAÂ¥, 9-Ludh THE CITY oF AspEN Land Use Application Determination of Completeness Date: April 30,2012 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 0028.2012.ASLU - 300 S. Spring Street. The planner assigned to this case is Jessica Garrow. 01 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: Please submit the aforementioned missing submission items so that we may begin reviewing your application. No review hearings will be scheduled until all of the submission contents listed above have been submitted and are to the satisfaction of the City o f Aspen Planner reviewing the land use application. ~~~21~ 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. 311@.k You, Â»Mnnifer ~an, Deputy Director>>. City of Aspen, Community Development Department For Office Use Only: Qualifying Applications: Mineral Rights Notice Required SPA PUD COWOP Yes _ No_*. Subdivision (creating more than 1 additional lot) GMQS Allotments Residential Affordable Housing Yes - No-7Â»=r Commercial E.P.F. 2731-ly-2-27-/a' 6028Â·20[2.Â®COI re/:1 1111:rk w â€¢ -~ ,4 0 ~ Ble Edt Record @9* Fum R#ort Form~t Ti 54 ~ i#4*) 94-0~~ile) 29.1 b , / 40#tjal :*mo|61 ide#Jil J '1 ~113 0 a )11 ~ RD#0tatus 485 |FeejumarY <8dbrs Att8[hliEnb 'RoumgtÂ»y 'Â¥d,15 1Rch/El, 1(*IR* | jilttem~ 44 | Â·*'",T<Ye Perttt, 8:lu ~As@en Lwd l,188 Pettlt# ~003212A&,U 1 Ade$$ ~300 s SENG ST *,0 1 (4 ASPEN 9*Fl @ Â¢1 1 : Perilt DkmÂ®bl Mder permit 44 4,0 FO-1 â€¢d 11209012 1 4 1 1~ ~8~di~g 0 1 1 I 0 i Ao*n APPLICATION FORINSUBSTANTIAL AMENDMENT SIA HANNAH DUSTIN SUBDIVISION H ~ ~ 4.40 9% - - EXPANSION PROE * *f, Sublitt- ' JAMES LIGHT 00*Â£401 [* 1=13 1 56#ave I Owner Last'me PRNGSTREETASPEN,LLC Fhtname Al\DREWLIGHT PO BOX 620 BASALT CO 81621 Phone (910) 948.21311 Address 1 Appk* 1 @ Ownel & appiomt? OContiactorisappN~ F 185tnam 300 SPRING STREET ASE fistname ANDRENLIGHT PO BOX 620 Â· BASALT (081621 1 Am (910)962131 |82#3268 b i Ld mane Sfst ne - - Â£6-Ek xr 9\ Di*$#Eflm~rdetsum AspenGÂ©m) &1* ~1â‚¬22 er. JA.. 1. Â»1-,reÂ» 1.4-r- , -91-- 44~9' " --+2 4 ,-,iâ€¢ ~Â·â€¢,pâ€¢ Â· ~AÂ»A/-,~Â·i ./ -Â·Â·g .. n -Â·- - .-Â· TI, himr.- p. - h. Vis A - , 2-60Â·00 -' Ad.regs 5Â«.12 *3 /5-y- / f noN w,c,SS Cor f 'Po Bop< 62-0 41/D 4Â» 1 11- 4 5 BSAP. 1 Ce T (G, 21 0,no~ ~ 1/q~&/~ ~ -edneig ~