HomeMy WebLinkAboutFile Documents.ASPEN ST.0142.2015 (3).ARBKRECEPTION#: 660595, R: $93.00, D: $0.00
DOC CODE: DEED RESTRICT
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Janice K. Vos Caudill, Pitkin County, CO
Aspen Pitkin County Housing Authority
Ap RC
Strengthening Community Through Workforce Housing
DEED RESTRICTIONAGREEMENT
FOR THE OCCUPANCYAND RESALE 11 ,, __
OF SOUTHASPEN STREET PUD AFI S Ox-�.�®
THIS DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY AND RESALE OF SOUTH
ASPEN STREET PUD SOUTH (the "Agreement") is made and entered into this )"I day of )o J-eyh heK 2019,
by ASV ASPEN STREET OWNER LLC, a Delaware 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 -INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ASPEN AND PITKIN
COUNTY ESTABLISHING THE ASPENIPITKIN COUNTY HOUSING AUTHORITY by and between the City of
Aspen, Colorado (the "City") and Pitkin County, Colorado (the "County"), dated May 13, 2019 and recorded at Reception
No. 656927 on June 27, 2019, of the records of the Pitkin County Clerk and Recorder's Office.
WITNESSETH:
WHEREAS, Declarant is the owner of certain real property in Pitkin County, Colorado legally described as Lot
2, AMENDED AND RESTATED SOUTH ASPEN STREET SUBDIVISION/PUD, according to the Plat thereof
recorded December 19, 2014, in Plat Book 108 at Page 60, as Reception No. 616166 ("Lot 2");
WHEREAS, Declarant has created condominiums on Lot 2 by the recordation of the Condominium Map of
South Aspen Street PUD South recorded q A" s '10 2019, in Plat Book /moat Page D%o, as
Reception No.66o5q?j (the "Map") and the CondoThinium Declaration of the South Aspen Street PUD South
recorded _14hvJ�l �� a.J , 2019 as Reception No. 6&059'4- (the "Declaration");
WHEREAS, this Agreement applies to the condominium unit labeled "AH Unit D-1" on the Map, which
contains one (1) designated Community Workforce Housing Unit (the "Unit");
WHEREAS, this Agreement does not apply to or affect any part of Lot 2 other than the Unit, and in particular
this Agreement does not apply to and does not affect any of the free market condominium units or common areas outside
the boundaries of the Unit shown on the Map;
WHEREAS, Declarant has developed the Unit for Qualified Buyers/Owners who acquire an ownership interest
in the Units in compliance with the terms and provisions of this Agreement, or any other person or legal entity owning an
interest in the Units; it being understood that such person, persons or entity shall be deemed an "Owner" hereunder only
during the period of his, her, their or its ownership interest in a Unit and shall be obligated hereunder for the full and
complete performance and observance of all covenants, conditions and restrictions contained herein during such period;
WHEREAS, for purposes of this Agreement, the terms "Unit" shall be deemed to mean and include all
dwellings, appurtenances, improvements and fixtures associated therewith;
WHEREAS, Declarant agrees to restrict the acquisition or transfer of the Unit to "Qualified Buyers," as that term
is defined in this Agreement, who fall within the Category 4 income range established by APCHA from time to time in its
Aspen/Pitkin Employee Housing Guidelines (hereinafter the "Guidelines"). In addition, the Declarant agrees that this
Agreement shall constitute a resale agreement setting forth the maximum resale price for which any Unit may be sold
("Maximum Resale Price") and the terms and provisions controlling the resale of the Unit and by this Agreement,
Declarant restricts the Units against use and occupancy inconsistent with this Agreement;
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WHEREAS, "Qualified Buyers" are natural persons meeting the income, residency and all other qualifications
set forth in the Guidelines, or its substitute, as adopted by APCHA, or its successor, and in effect at the time of 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 in the Unit, 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 as stated in the Guidelines as they are
amended from time to time;
WHEREAS, an "Owner" is a person or persons who is/are a Qualified Buyer who acquires an ownership interest
in a Unit in compliance with the terms and provisions of this Agreement, or any other person or legal entity owning an
interest in the Unit; it being understood that such person, persons or entity shall be deemed an "Owner" hereunder only
during the period of his, her, their or its 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;
WHEREAS, this document supersedes any previous deed restriction agreement for occupancy and resale
associated with this Unit; and
WHEREAS, more information about the Unit, including the respective initial sales prices, is set forth on Exhibit
"A" attached hereto.
NOW, THEREFORE, for value received, the receipt and sufficiency of which are hereby acknowledged, Owner
hereby represents, covenants and agrees as follows:
USE AND OCCUPANCY
The use and occupancy of the Unit shall henceforth 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 Guidelines referred to above.
REQUIREMENTS
An Owner, in connection with the purchase of a 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 encumber the Unit with debt in any form which exceeds, at any time, the
Maximum Resale Price of the Unit as determined in accordance with Paragraph 10 and 11 of this Agreement; g)
not permit any use or occupancy of such Unit except in compliance with this Agreement; h) continue to meet the
residence and employment requirements of a Qualified Buyer established by the Guidelines and as they are
amended from time to time; and i) continue to meet the other, requirements of the applicable Guidelines as they
are amended from time to time. Recertification of employment, residency and the continued non -ownership of
other property shall be required as stipulated in the Guidelines.
DEFAULT ON LOAN
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a. It shall be a breach of this Agreement for Owner to default in payments or other obligations due or to be
performed under a promissory note secured by a deed of trust encumbering a Unit or to breach any of
Owner's duties or obligations under said deed of trust. It shall also be a breach of this Agreement for Owner
to default in the payment of real property taxes or obligations to the Homeowners' Association for general or
special assessments. Owner must notify 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 deed of trust, as described herein, or of any breach of
any of Owner's duties or obligations under said deed of trust, within five calendar days of Owner's
notification from lender, or its assigns, or any other creditor specified herein, of said default or past due
payments or breach.
b. Upon notification of a default as provided above, APCHA may offer loan counseling or distressed loan
services to the Owner, if any of these services are available, and is entitled to require the Owner to sell the
Unit to avoid the commencement of any foreclosure proceeding against the Unit.
c. Upon receipt of notice as provided in paragraphs 3a and b, APCHA shall have the right, in its sole discretion,
to cure the default or any portion thereof. In such event, the Owner shall be personally liable to APCHA for
past due payments made by APCHA together with interest thereon at the rate specified in the promissory
note secured by the first deed of trust, plus one percent (10/o), and all actual expenses of APCHA incurred in
curing the default. The Owner shall be required by APCHA to execute a promissory note secured by deed of
trust encumbering the Unit in favor of APCHA for the amounts expended by APCHA as specified herein,
including future advances made for such purposes. The Owner may cure the default and satisfy its obligation
to APCHA under this subparagraph at any time prior to execution of a contract for sale, upon such reasonable
terms as specified by APCHA. Otherwise, Owner's indebtedness to APCHA shall be satisfied from the
Owner's proceeds at closing.
d. In addition, upon receipt of notice as provided in Paragraphs 3a and 3b, APCHA shall have the option,
exercisable in APCHA's sole discretion, to purchase Owner's Unit for ninety-five percent (95%) of the
Maximum Resale Price. If APCHA desires to exercise said option, it shall give written notice thereof to
the Owner within forty-five (45) days following APCHA's receipt of the notice as provided in Paragraphs
3a and 3b. In the event APCHA timely exercises said option, the closing of the purchase of the Unit shall
occur within forty-five (45) days following the date of APCHA's notice to the Owner of the exercise of
said option.
4. It shall be a violation of the Agreement for the Owner to default in the payment of general or special
assessments to the Homeowner's Association, and such person shall be subject to enforcement as provided
herein. This shall include, but may not be limited to, the required sale of the Unit along with the termination of
any appreciation during the period of non-compliance. In addition, upon sale of a Unit as to which the payment
of such obligations is in default, the assessments shall be paid at closing by Owner.
ENFORCEMENT
5. Owner agrees to provide, upon request of APCHA, all documents and information necessary for APCHA to
establish continued compliance with this Agreement and with the Guidelines, as amended from time to time.
Documents may include but are not limited to: Federal and State Income Tax Returns, W2's, 1099's, bank
statements, and invoices for utility payments. APCHA shall maintain the confidentiality of financial information
as provided by law.
6. If APCHA determines that sale of the Unit is necessary because of breach of this Agreement, Owner shall
immediately execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission
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with APCHA, providing for a 180 -day listing period. At that time, the Owner shall deposit with APCHA an
amount equal to one percent (1%) of the estimated value of the Unit. The appreciation of the Unit will terminate
from the date that the violation occurred (said date shall not necessarily be the same time the Notice of Violation
was sent to the Owner). If a sales contract has not been executed within the initial 30 -day period, Owner shall
extend the listing period for an additional 150 days, provided such extension does not conflict with the statutory
rights of any secured creditors. APCHA shall promptly advertise the Unit for sale by competitive bid to Qualified
Buyers. At the time of closing, the Owner shall pay to APCHA an additional fee as stated in the Guidelines in
effect at the time of the enforcement issue. In the event of a listing of the Unit pursuant to this Paragraph 6,
APCHA is entitled to require the Owner to accept the highest of any qualified bids that is equal to the lesser of (i)
an amount that at least satisfies the Owner's financial or other obligations due under the promissory note secured
by a first deed of trust and any deed of trust in favor of APCHA, as described herein, or (ii) the Maximum Resale
Price (as hereinafter defined), and to sell the Unit to such qualified bidder. The listing and sale of the Unit shall be
subject to such listing, sales and other fees and expenses as may be imposed by APCHA from time to time as set
forth in the Guidelines.
AGREEMENT RUNS WITH THE LAND
7. This Agreement shall constitute covenants running with the Unit, as a burden thereon, for the benefit of, and
shall be specifically enforceable by APCHA, the City Council for the City (the "City Council"), the Board of
County Commissioners for the County (referred to herein as the `BOCC" or 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.
VOLUNTARYSALE
8. If an Owner desires to voluntarily sell the Unit, the Owner shall execute a standard Listing Contract on forms
approved by the Colorado Real Estate Commission with APCHA providing for a 180 -day listing period, or such
other time as required by the Guidelines in effect at time of listing. 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 APCHA from time to time as set forth in the Guidelines.
APCHA'S RIGHT TO ACQUISITION
9. Notwithstanding any provision herein to the contrary, APCHA shall have the right, in its sole discretion, (i) to
acquire any Unit for resale thereof to a Qualified Buyer; (ii) following its acquisition of any Unit, to repair,
replace, redevelop, remove and maintain such Unit prior to resale to a Qualified Buyer; and/or (iii) amend this
Deed Restriction Agreement following the acquisition.
MAXIMUM RESALE PRICE
10. In no event shall the Unit be sold for an amount ("Maximum Resale Price") more than the lesser of:
a. the amount set forth on Exhibit "A" 1, plus an increase of three percent (3%) of such price per year 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
1 A separate Memorandum of Acceptance will be required for the Qualified Buyer to sign at closing stating the sales price.
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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 APCHA OR THE CITY THAT ON RESALE THE OWNER SHALL OBTAIN
THE MAXIMUM RESALE PRICE.
11. 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 10 above, the cost
of approved and Permitted Capital Improvements (hereinafter "PCI"), as set forth in Exhibit "B"_ attached
hereto or otherwise allowed by the Guidelines, and as they are amended from time to time, in a total
amount not to exceed Z$, which is ten percent (101/o) of the maximum sales purchase price set forth in
paragraph 10a above. In calculating such amount, only those PCI's identified in Exhibit "B" hereto or
otherwise allowed by the Guidelines from time to time shall qualify for inclusion. All such PCIs 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. PCIs shall not include any changes or additions to the Unit made by the Owner during construction or two
years thereafter, except in accordance with Paragraph Ila above. PCI shall not be included in APCHA's
listed purchase price, even if made or installed during original construction.
c. To qualify as a PCI, the Owner must complete the Capital Improvement Request Form and received approval
from APCHA PRIOR to any work being done. Once the work has been completed, the following information
with respect to the improvements that the Owner seeks to include in the calculation of Maximum Resale
Price must be provided to APCHA:
(1) Original or duplicate receipts to verify actual costs expended by Owner for PCI showing
payment;
(2) Owner's affidavit verifying that receipts are valid and correct receipts tendered at time of
purchase;
(3) True and correct copies of any building permit or certificate of occupancy required to be issued
by Aspen/Pitkin County Building Departments with respect to the PCI.
(4) In calculating costs under Paragraphs 11 a -c (1-3), the Owner's actual out-of-pocket approved
costs and expenses shall be eligible for inclusion if documentation has been provided satisfactory
to APCHA. Such amount shall not include an amount attributable to Owner's "sweat equity" or to
any appreciation in the value of the improvements.
All capital improvements will be depreciated. Certain capital improvements will not be counted towards the
10% cap. Each capital improvement will depreciate per the depreciation schedule stated in an approved
handbook. The current source is the Marshall Swift Residential Handbook. Any capital improvements
A separate Memorandum of Acceptance will be required for the Qualified Buyer to sign stating the amount of the capital
improvements based on the sales price.
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associated with health and safety, energy efficiency, water conservation, and green building products will be
exempt from the 10% capital improvement cap if approved by APCHA prior to installation; however, such
capital improvements shall be depreciated per, the depreciation schedule stated in an approved handbook.
d. For determining the Maximum Resale Price in accordance with this Section, the Owner may also add to the
amounts specified in Paragraphs 10 and Ila, the cost of any permanent improvements constructed or
installed because of any requirement imposed by any governmental agency, if written certification is
provided to APCHA of both the applicable requirement and the information required by Paragraph l lc (1) —
(3).
e. 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 Standards for
Seller to Receive Full Value at Resale, Exhibit "C". 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.
GRIEVANCES
12. All disputes regarding the interpretation and enforcement of this Agreement shall be subject to the grievance
procedures set forth in the Guidelines as amended from time to time.
CLOSING COSTS
13. Owner shall not permit any prospective buyer to assume any or all .the Owner's customary closing costs
(including, but not limited to, title insurance, sales fee, pro ration of taxes, homeowner's dues, etc., as are
customary in Aspen and Pitkin County) nor accept any other consideration which would cause an increase in the
purchase price above the bid price to induce the Owner to sell to such prospective buyer.
MULTIPLE QUALIFIED BIDS
14. In the event that one 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 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 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 all bids; however, the Owner is subject to the provisions in the
Employee Housing Guidelines pertaining to the listing fee. Bids more than 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 or more bids are for the same price, the Qualified Buyer shall
be selected by lottery from among the highest qualified bidders.
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NON-QUALIFIED TRANSFEREES
15. In the event that title to the Unit vests by descent in, or is otherwise acquired by, any individual and/or entity who
is not a Qualified Buyer as that term is defined herein (hereinafter "Non -Qualified Transferee(s)"), the Unit shall
immediately be listed for sale as provided in Paragraph 8 above (including the payment of the specified fee to
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, if all 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).
a. Non -Qualified Transferee(s) shall join in any sale, conveyance or transfer of the Unit to a Qualified Buyer
and shall execute all documents necessary to do so; and
b. Non -Qualified Transferee(s) agree not to: (1) occupy the Unit; (2) rent all or any part of the Unit, except in
strict compliance with Paragraph 15 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 Employee Housing
Guidelines; or (5) sell or otherwise transfer the Unit for use in a trade or business.
c. 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 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 appraised market value, whichever is less. The offer to purchase shall be
made by the Non -Qualified Transferee within fifteen (15) days of acquisition of the Unit.
d. Where the provisions of this Paragraph 15 apply, APCHA may require the Owner to rent the Unit in
accordance with the provisions of Paragraph 19, below.
OWNER RESIDENCE, EMPLOYMENT AND CONTINUING COMPLIANCE
16. The Unit shall be utilized only as the sole and exclusive place of residence of its Owner.
17,. In the event an Owner changes place of residence or ceases to utilize the Unit as his sole and exclusive place of
residence, ceases to be a frill -time employee in accordance with the Guidelines as they are amended from time to
time, or otherwise ceases to comply as a Qualified Buyer with the 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 6 of this
Agreement. An Owner 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 APCHA, or by ceasing to be a full-time employee as
required by the Guidelines and as amended from time to time: Where the provisions of this Paragraph 17 apply,
APCHA may require the Owner to rent the Unit in accordance with the provisions of Paragraph 19, below
pending a sale of the.Unit.
18. It is a violation to this Agreement for an Owner to own directly or indirectly through a legal entity or otherwise,
any interest alone or in conjunction with others in any residential property within the Ownership Exclusion Zone.
If at any time an Owner acquires such an interest, the Owner shall immediately list said other property for sale
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 is located. In the event said other property has not been sold by Owner within one hundred eighty
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(180) days of closing on such property, then Owner hereby shall immediately list this Unit for sale pursuant to the
provisions of Paragraph 6 of this Agreement. Should the Owner not receive a full -priced bid, then said Owner
must accept the first reasonable offer for said Unit as deemed appropriate by APCHA.
RENTAL
19. Owner may not, except with prior written approval of APCHA, and subject to APCHA's conditions of
approval, rent the Unit for any period. Prior to occupancy, each tenant must be approved by the Homeowner's
Association, if applicable, and APCHA in accordance with employment as stated in the Guidelines, as well as
non -ownership of property within the Ownership Exclusion Zone, established by the Guidelines. APCHA shall
not approve any rental if such rental is being made by Owner to utilize the Unit as an income producing asset,
except as provided below, and shall not approve a lease with a rental term more than twelve (12) months. A
signed copy of the lease must be provided to APCHA prior to occupancy by each tenant. Any such lease
approved by APCHA shall show the length of the lease and the monthly rent. The monthly rent cannot exceed
the Owner's costs, which include the monthly expenses for the cost of principal and interest payments, taxes,
property insurance, condominium or homeowner's assessments, utilities remaining in Owner'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.
Requirements of this paragraph shall not preclude the Owner from sharing occupancy of the Unit with qualified
non -Owners on a rental basis provided Owner continues to meet the obligations contained in this Agreement,
including Paragraph 15. All roommates charged rent by the Owner are required to obtain approval by APCHA
prior to occupancy.
20. IN NO EVENT SHALL THE OWNER CREATE AN ADDITIONAL DWELLING UNIT, AS DEFINED IN
THE PITKIN COUNTY OR CITY OF ASPEN LAND USE CODES, IN OR ON THE UNIT.
21. NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE APCHA TO PROTECT OR INDEMNIFY
THE 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 APCHA TO OBTAIN A QUALIFIED TENANT FOR THE OWNER IF NONE IS FOUND BY
THE OWNER.
COMPLIANCE REVIEW AND REMEDIES FOR BREACH
22. All existing and potential Owners shall promptly provide to APCHA all such information as APCHA deems
reasonably necessary at any time to verify compliance with this Agreement. APCHA shall maintain the
confidentiality of any financial data provided by any existing or potential Owner, subject to the requirements of
the Colorado Open Records Act, C.R.S. 24-72-201, et. seq., and except for such disclosures as are necessary with
respect to any litigation, enforcement or other legal proceedings. If APCHA has reasonable cause to believe the
Owner is violating the provisions of this Agreement, 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 the Owner with no
less than 24 hours' written notice.
23. 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 Owner describing the nature of the violation and allowing the
Owner fifteen (15) days to cure. Said notice shall state that the Owner may request a hearing before 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 Owner
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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 judicial review. If a hearing is held before APCHA
Board, (i) the decision of APCHA Board based on the record of such hearing shall be final for determining if a
violation has occurred, and (ii) APCHA Board shall have absolute discretion to determine the appropriate action
to be taken to either remedy the violation or require the Owner to list the Unit for sale in accordance with this
Agreement. For determining the maximum resale price of the Unit, appreciation shall terminate from the date
of the first notice of violation until the violation is cured or until the Unit is sold, whichever is applicable.
24. There is hereby reserved to the parties hereto all remedies provided by law for breach of this Agreement or any of
its terms. In the event the parties' resort to litigation with respect to any or all provisions of this Agreement, the
prevailing party shall be awarded damages and costs, including reasonable attorneys' fees.
25. In the event the Unit is sold and/or conveyed without compliance herewith, such sale and/or conveyance shall be
wholly null and void and shall confer no title whatsoever upon the purported buyer. Each 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 Owner shall be liable for all APCHA's costs and
reasonable attorneys' fees incurred in setting aside any such transaction.
26. If the Owner fails to cure any breach, APC14A may resort to all available legal action, including, but not limited
to, specific performance of this Agreement or a mandatory injunction requiring sale of the Unit by Owner as
specified in Paragraphs 3, 15, 17, and 18. The costs of such sale, including reasonable attorneys' fees, shall be
taxed against the proceeds of the sale with the balance being paid to the Owner.
27. 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, APCHA's initial listed purchase price of the Unit as set forth in Paragraph 10a of this
Agreement shall, upon the date of such breach as determined by APCHA, automatically cease to increase as set
out in Paragraph 10 of this Agreement, and shall remain fixed until the date of cure of said breach.
FORECLOSURE
28. a. If any Unit is sold as a foreclosure sale or otherwise acquired by any person or entity in lieu of foreclosure,
APCHA and the Board, as the designee of APCHA, shall have the option to acquire such Unit within
thirty (30) days after (i) the issuance of a public trustee's deed to the purchaser, or (ii) receipt by APCHA
of written notice from such person or entity of the acquisition of such Lot 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
of foreclosure, 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 such Unit. Notwithstanding any provision
herein to the contrary, except for persons or entities having a valid lien on a 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 a 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 15 shall apply. It is 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 39 hereof.
b. If APCHA exercises the option described above, APCHA 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 all other
qualifications, established by APCHA in its Guidelines until a sale to a Qualified Buyer is affected.
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c. Notwithstanding the foregoing, in the event of foreclosure by the holder of the first deed of trust on such
Unit, if the holder of such deed of trust is the grantee under the public trustee's deed and APC14A does not
exercise its option to purchase as provided in paragraph 28, then APCHA agrees to release the Unit from
the requirements of this Deed Restriction.
GENERAL PROVISIONS
29. 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 if 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 other-
wise notified in writing:
To APCHA: Aspen/Pitkin County Housing Authority
210 E. Hyman Avenue, Suite 202, Aspen, Colorado 81611
To Declarant: ASV Aspen Street Owner, LLC
c/o Bald Mountain Development
132 W. Main, Suite C, Aspen, Colorado 81611
To Owner: Owner Name
Owner Address
30. Exhibits. All exhibits attached hereto (Exhibits "A", `B" and "C") are incorporated herein and by this reference
made a part hereof.
31. 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.
32. Choice of Law. This Agreement and each related document are to be governed and construed in accordance with
the laws of the State of Colorado.
33. 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.
34. 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.
35. 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, if such waiver is in writing.
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36. Gender and Number. Whenever the context so requires herein, the neuter gender shall include any or all genders
and vice versa and the use of the singular shall include the plural and vice versa.
37. Personal Liability. The Owner agrees that he or she shall be personally liable for any of the transactions
contemplated herein.
38. 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 in connection herewith.
39. 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, 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.
40. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year above first
written.
DECLARANT:
ASV ASPEN STREET OWNER LLC, a Delaware limited liability company
Q �
Bv:
Print Name: Martin Zieff
Title: Authorized Signatory
COMMONWEALTH OF MASSACHUSETTS
ss.
COUNTY OF SUFFOLK
The foregoing instrument was acknowledged before me this t - ' day of November, 2019 by Martin Zieff,
Authorized Signatory of ASV ASPEN STREET OWNER LLC, a Delaware limited liability company.
Witness my hand and official seal;
My commission expires: ( `' /1R
JO JOAN D. ALLARD P �,
Notary Public �' h
COMMONWEALTH OFMAMACHusms
My Commission Expires
JUI) uly 18, 2025
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ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY
The foregoing Deed Restriction Agreement for the Occupancy and Resale of SOUTH ASPEN STREET PUD
SOUTH, of the Aspen/Pitkin County Housing Authority and its terms are hereby adopted and declared by the
Aspen/Pitkin County Housing Authority.
THE ASP /P KIN COUN SING AUTHORITY
By:
Cindy Christes , Deputy Director
STATE OF COLORADO
ss.
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me this 141 day of November 2019, by Cindy Christensen,
as Deputy Director of the Aspen/Pitkin County Housing Authority.
Witness my hand and official seal
Notary Public '
State of Colorado
Notary ID # 20024034173
My Commission Expires 11-17-2022
Notary Public
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EXHIBIT "A"
Information Concerning the Unit
No. of
Address Unit Bedrooms Sq. Ft. Category Garage Sales Price
121. Juan Street D-1 4 1,914 4 1 $394,000.00
The Unit includes a 690 square foot garage, mechanical and storage space and will include the following appliances:
• Refrigerator/Freezer
• Range/Oven
• Microwave/Recirculation Hood (installed over the range)
• Washer/Dryer
• Dishwasher
i
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EXMIT'B"
Permitted Capital Improvements
To receive credit for any capital improvements, you must complete the Capital Improvement Request Form and have
received approval from APCHA prior to any work being done.
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 efficiency items and water conservation;
C. Improvements for the benefit of seniors and/or handicapped persons;
d. Improvements for health and safety protection devices;
C. Improvements to add and/or finish permanent/fixed storage space;
f. Improvements to finish unfinished space.
g. Permanent types of landscaping; e.g., adding irrigation system, trees (perennial -type flora may be
allowed, but not guaranteed)
h. The cost of adding decks and balconies, and any extension thereto; and/or
i. Improvements associated with 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; and/or
d. Landscaping that is not permanent; e.g., flowers,
All Permitted Capital Improvement items and costs shall be approved by APCHA staff prior to being
added to the Maximum Resale Price as defined herein. APCHA recommends that you obtain approval
before doing any work. 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 of the Guidelines;
however, ALL permitted capital improvements will be depreciated as based on a third source as stipulated in the
Guidelines.
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EXHIBIT "C"
MINIMUM STANDARDS FOR SELLER TO RECEIVE FULL VAL UE AT RESALE
• Clean unit
• Carpets steam -cleaned two or three days prior to closing
• Major scratches, holes, burned marks repaired in hardwood floors, linoleum, tile, counter tops etc.
• No broken windows
• All screens in windows (if screens were originally provided)
• All doors will be in working order with no holes
• All locks on doors will work
• All keys will be provided; e.g., door, mail box, garage
• All mechanical systems shall be in working order
• Walls paint ready
• 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
• No leaks from plumbing fixtures
• No roof leaks
• Any safety hazard remedied prior to closing, excluding radon (not required in State of Colorado)
• All light fixtures shall be in working order
DEFINITIONS:
Clean Unit:
All rooms will be cleaned as stated below:
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.
• Blinds, Windows, Screens:
o Mini -blinds, Venetian Blinds, Vertical Blinds, Pull Shades — Will be clean.
o Windows — All window surfaces, inside of the unit, shall be cleari.
o Screens — Screens will be clean and in place with no holes or tears (if provided).
• Closets: Closets, including floors, walls, hanger rod, shelves and doors, shall be clean.
• Light Fixtures: Light fixtures will be clean and shall have functioning bulbs/florescent tubes.
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Bathrooms:
o Bathtub, Shower Walls, Sinks — Bathtubs, shower walls and sinks shall be clean.
o 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.
o Tile — All tile and grout will be clean.
o Mirrors and Medicine Cabinets — Mirrors and medicine cabinets shall be cleaned inside and out.
o Shelves and/or Other Cabinetry — All other shelving or cabinetry shall be cleaned inside and out.
• Walls, Ceilings, Painted Doors and Baseboards: Painted surfaces must be cleaned with care to ensure the
surface is clean without damaging the paint.
• 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.
• 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.
Safety Hazard: Any item that provides a safety hazard shall be fixed. This would include, but is not limited to, exposed
electrical wiring, ventilation for gas hot water system, etc. If a radon test is done and it is found to be higher than
normal levels, per Colorado law, there is not a requirement to mitigate.
Walls Paint -Ready: All 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 and/or the locking
mechanism repaired.
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